LIBRARY 
 
 THE UNIVERSITY 
 OF CALIFORNIA 
 
 SANTA BARBARA 
 
 PRESENTED BY 
 
 Westwick and Col 1 i son

 
 BOUVIERS LAW DICTIONARY 
 
 A CONCISE 
 
 ENCYCLOPEDIA OF THE LAW 
 
 RAWLE'S REVISION
 
 J0HM EOUVEER 
 
 ovuvust-
 
 w. R, «vs* BOUVIER'S 
 
 LAW DICTIONARY 
 
 CONCISE ENCYCLOPEDIA 
 
 BY JOHN BOUVIER 
 
 Iptoratis terminis ignoratur et ars. — Co. Litt. 2j 
 
 Jt sat's que chaque science et chaque art a ses termes propres, inconnus 
 au commun des hommes. — Fleury 
 
 7 
 
 THIRD REVISION 
 
 (BEING THE EIGHTH EDITION) 
 
 BY FRANCIS RAWLE 
 
 OF THE PHILADELPHIA BAR 
 
 VOLUME 1 
 
 KANSAS CITY. MO. 
 VERNON LAW BOOK COMPANY 
 
 ST. PAUL. MINN. 
 
 WEST PUBLISHING COMPANY 
 
 1914
 
 Entered according to Act of Congress, in the year 1839, by 
 JOHN BOUVIER, 
 in the Clerk's Office of the District Court of the United States for the Eastern District of 
 
 Pennsylvania. 
 
 Entered according to Act of Congress, in the year 1843, by 
 
 JOHN BOUVIER, 
 
 in the Clerk's Office of the District Court of the United States for the Eastern District of 
 
 Pennsylvania. 
 
 Entered according to Act of Congress, in the year 1848, by 
 JOHN BOUVIER, 
 
 in the Clerk's Office of the District Court of the United States for the Eastern District of 
 
 Pennsylvania. 
 
 Entered according to Act of Congress, in the year 1852, by 
 
 ELIZA BOUVIER and ROBERT E. PETERSON, Trustees, 
 
 in the Clerk's Office of the District Court of the United States for the Eastern District of 
 
 Pennsylvania. 
 
 Entered according to Act of Congress, in the year 1867, by 
 
 ELIZA BOUVIER and ROBERT E. PETERSON, Trustees, 
 
 in the Clerk's Office of the District Court of the United States for the Eastern District of 
 
 Pennsylvania. 
 
 Entered according to Act of Congress, in the year 1SS3, by 
 
 ROBERT E. PETERSON, 
 in the Office of the Librarian of Congress at Washington. 
 
 Copyright, 1897, by R. Evans Peterson, Trustee. 
 
 Copyright, 1914, by Louis D. Peterson, Trustee. 
 
 (1 Bouv.)
 
 PREFACE 
 
 It has been the purpose of the Editor in preparing this his Third Revision to 
 treat much more fully all encyclopaedic titles, except those in which there has been 
 no development in recent years, while adding many dictionary and other minor 
 titles not found in the last Revision. These objects and the great changes since 
 1898, the date of the last Revision, in the questions which have occupied the 
 courts, have required the extension of the work to three volumes. The titles of 
 both State and Federal cases have for the first time been inserted, as well as 
 the volumes of the different series of reports other than those of the official series. 
 Titles of a statutory and changing nature have been treated less fully, so as to 
 avoid purely ephemeral matter. 
 
 Judge Baldwin (Modern Political Institutions 241) quotes Jeremiah Mason 
 as saying that the development of an American Jurisprudence can only be looked 
 for from the courts of the National Government. The Editor has been guided by 
 that thought and sees in it a hope of increasing uniformity of law, towards which 
 the profession, in its work on uniform legislation, is making real progress. He 
 has therefore constantly cited the decisions of the Supreme Court of the United 
 States and very frequently those of the lower Federal Courts. Of course, on 
 many of the questions now being passed upon by the State Courts, the decisions 
 of the Supreme Court are of binding authority. 
 
 The Editor is indebted to George H. Bates for many important titles, such as 
 Constitutional Law, Constitution of the United States, Restraint of Trade and 
 Equity; to R. C. Wildes for valuable assistance throughout; to Charles G. Fen- 
 wick, Ph. D. (Johns Hopkins), author of the "Neutrality Laws of the United 
 States," for revising and in many cases rewriting the titles relating to Interna- 
 tional Law; and to Norman B. Gwyn, M. D., for revising the titles relating to 
 
 Medical Jurisprudence. t- t, 
 
 Francis Rawle. 
 
 Philadelphia, November 3, 1914. 
 
 (v)*
 
 SA.Ni 1 I 
 
 PREFACE TO THE FIRST EDITION 
 
 To the difficulties which the author experienced on his admission to the bar, 
 the present publication is to be attributed. His endeavors to get forward in his 
 profession were constantly obstructed, and his efforts for a long time frustrated, 
 for want of that knowledge which his elder brethren of the bar seemed to possess. 
 To find among the reports and the various treatises on the law the object of his 
 inquiry, was a difficult task: he was in a labyrinth without a guide; and much of 
 the time which was spent in finding his way out might, with the friendly assist- 
 ance of one who was acquainted with the construction of the edifice, have been 
 saved, and more profitably employed. He applied to law dictionaries and digests 
 within his reach, in the hope of being directed to the source whence they derived 
 their learning; but he was too often disappointed: they seldom pointed out the 
 authorities where the object of his inquiry might be found. It is true such works 
 contain a great mass of information, but, from the manner in which they have 
 been compiled, they sometimes embarrassed him more than if he had not consulted 
 them. They were written for another country, possessing laws different from 
 our own, and it became a question how far they were or were not applicable here. 
 Besides, most of the matter in the English law dictionaries will be found to have 
 been written while the feudal law was in its full vigor, and not fitted to the pres- 
 ent times, nor calculated for present use, even in England. And there is a great 
 portion which, though useful to an English lawyer, is almost useless to the Ameri- 
 can student. What, for example, have we to do with those laws of Great Britain 
 which relate to the person of their king, their nobility, their clergy, their navy, 
 their army; with their game laws; their local statutes, such as regulate their 
 banks, their canals, their exchequer, their marriages, their births, their burials, 
 their beer and ale houses, and a variety of similar subjects? 
 
 The most modern law dictionaries are compilations from the more ancient, 
 with some modifications and alterations; and, in many instances, they are servile 
 copies, without the slightest alteration. In the mean time the law has undergone 
 a great change. Formerly the principal object of the law seemed to be to regulate 
 real property, in all its various artificial modifications, while little or no attention 
 was bestowed upon the rules which govern personal property and rights. The 
 mercantile law has since arisen, like a bright pyramid, amid the gloom of the 
 feudal law, and is now far more important in practice than that which refers to 
 real estate. The law of real property, too, has changed, particularly in this coun- 
 try. 
 
 The English law dictionaries would be very unsatisfactory guides, even in 
 pointing out where the laws relating to the acquisition and transfer of real es- 
 tate, or the laws of descent in the United States, are to be found. And the student 
 who seeks to find in the Dictionaries of Cowel, Manly, Jacobs, Tomlins, Cun- 
 ningham, Burn, Montefiore, Pott, Whishaw, Williams, the Termes de la Ley, or 
 any similar compilation, any satisfactory account in relation to international law, 
 to trade and commerce, to maritime law, to medical jurisprudence, or to natural 
 
 (vii)
 
 v jii PREFACE 
 
 law. will probably not be fully gratified. He cannot, of course, expect to find in 
 them any thing in relation to our government, our constitutions, or our political or 
 civil institutions. 
 
 It occurred to the author that a law dictionary, written entirely anew, and 
 calculated to remedy those defects, would be useful to the profession. Probably 
 overrating his strength, he resolved to undertake the task ; and, if he should not 
 fully succeed, he will have the consolation to know that his effort may induce 
 some more gifted individual, and better qualified by his learning, to undertake 
 such a task, and to render the American bar an important service. Upon an ex- 
 amination of the constitution and laws of the United States, and of the several 
 states of the American Union, he perceived many technical expressions and much 
 valuable information which he would be able to incorporate in his work. Many 
 of these laws, although local in their nature, will be found useful to every lawyer, 
 particularly those engaged in mercantile practice. As instances of such laws the 
 reader is referred to the articles Acknowledgment, Descent, Divorce, Letters of 
 Administration and Limitation. It is within the plan of this work to explain such 
 technical expressions as relate to the legislative, executive, or judicial departments 
 of the government ; the political and the civil rights and duties of the citizens ; 
 the rights and duties of persons, particularly such as are peculiar to our institu- 
 tions, as, the rights of descent and administration ; of the mode of acquiring and 
 transferring property; to the criminal law, and its administration. It has also 
 been an object with the author to embody in his work such decisions of the courts 
 as appeared to him to be important, either because they differed from former judg- 
 ments, or because they related to some point which was before either obscure or 
 unsettled. He does not profess to have examined or even referred to all the 
 American cases: it is a part of the plan, however, to refer to authorities, gen- 
 erally, which will lead the student to nearly all the cases. 
 
 The author was induced to believe that an occasional comparison of the civil, 
 canon, and other systems of foreign law, with our own, would be useful to the 
 profession, and illustrate many articles which, without such aid, would not appear 
 very clear ; and also to introduce many terms from foreign laws, which may sup- 
 ply a deficiency in ours. The articles Condonation, Extradition, and Novation 
 are of this sort. He was induced to adopt this course because the civil law has 
 been considered, perhaps not without justice, the best system of written reason; 
 and as all laws are, or ought to .be, founded in reason, it seemed peculiarly proper 
 to have recourse to this fountain of wisdom : but another motive influenced this 
 decision ; one of the states of the Union derives most of its civil regulations from 
 the civil law ; and there seemed a peculiar propriety, therefore, in introducing it 
 into an American law dictionary. He also had the example of a Story, a Kent, 
 Mr. Angell, and others, who have ornamented their works from the same source. 
 And he here takes the opportunity to acknowledge the benefits which he has de- 
 rived from the learned labors of these gentlemen, and of those of Judge Sergeant, 
 Judge Swift, Judge Gould, Mr. Rawle, and other writers on American law and 
 jurisprudence. 
 
 In the execution of his plan, the author has, in the first place, defined and ex- 
 plained the various words and phrases, by giving their most enlarged meaning, 
 and then all the shades of signification of which they are susceptible; secondly, 
 he has divided the subject in the manner which to him appeared the most natural, 
 and laid down such principles and rules as belong to it ; in these cases he has gen- 
 erally been careful to give an illustration, by citing a case whenever the subject
 
 PREFACE ll 
 
 seemed to require it, and referring to others supporting the same point; thirdly, 
 whenever the article admitted of it, he has compared it with the laws of other 
 countries within his reach, and pointed out their concord or disagreement; and, 
 fourthly, he has referred to the authorities, the abridgments, digests, and the 
 ancient and modern treatises, where the subject is to be found, in order to facili- 
 tate the researches of the student. He desires not to be understood as professing 
 to cite cases always exactly in point ; on the contrary, in many instances the au- 
 thorities will probably be found to be but distantly connected with the subject un- 
 der examination, but still connected with it, and they have been added in order 
 to lead the student to matter of which he may possibly be in pursuit. 
 
 To those who are aware of the difficulties of the task, the author deems it un- 
 necessary to make any apology for the imperfections which may be found in the 
 work. His object has been to be useful: if that has been accomplished in any 
 degree, he will be amply rewarded for his labor ; and he relies upon the generous 
 liberality of the members of the profession to overlook the errors which may have 
 been committed in his endeavors to serve them. John Bouviik. 
 
 PniLADELPniA, September, 1839.
 
 REVIEW 
 
 OF BOUVIER'S LAW DICTIONARY AND "INSTITUTES 
 
 OF AMERICAN LAW" 
 
 BY S.AUSTIN ALLIBONE, LL.D. 
 
 AUTHOR OF "THE DICTIONARY OF AUTHORS" 
 
 From the North American Review for July, 1861 
 
 The author of these volumes taught lawyers by his books, but he taught all 
 men by his example, and we should therefore greatly err if we failed to hold up, 
 for the imitation of all, his successful warfare against early obstacles, his uncon- 
 querable zeal for the acquisition of knowledge, and his unsparing efforts to dis- 
 tribute the knowledge thus acquired for the benefit of his professional brethren. 
 1'orn in the village of Codognan, in the department Du Gard, in the south of 
 France, in the year 1787, at the age of fifteen he accompanied his father and 
 mother — the last a member of the distinguished family of Benezet — to Philadel- 
 phia, where he immediately applied himself to those exertions for his own sup- 
 port which the rapid diminution of his father's large property had rendered 
 necessary. In 1812 he became a citizen of the United States, and about the same 
 time removed to West Philadelphia, where he built a printing-office, which still 
 exists as an honorable monument of his enterprise. Two years later we find him 
 settled at Brownsville, in the western part of Pennsylvania, where, in 1814, he 
 commenced the publication of a weekly newspaper, entitled "The American Tele- 
 graph." In 1818, on Mr. Bouvier's removal to Uniontown, he united with it 
 '"The Genius of Liberty," and thenceforth issued the two journals in one sheet, 
 under the title of "The Genius of Liberty and American Telegraph." He re- 
 tained his connection with this periodical until July 18, 1820. 
 
 It was while busily engaged as editor and publisher that Mr. Bouvier resolved 
 to commence the study of the law. He attacked Coke and Blackstone with the 
 determination and energy which he carried into every department of action or 
 speculation, and in 1818 he was admitted to practice in the Court of Common 
 Pleas of Fayette county, Pennsylvania. During the September term of 1822 he 
 was admitted as an attorney of the Supreme Court of Pennsylvania, and in the 
 following year he removed to Philadelphia, where he resided until his death. In 
 1836 he was appointed by Governor Ritner Recorder of the City of Philadelphia, 
 and in 1838 was commissioned by the same chief magistrate as an Associate 
 Judge of the Court of Criminal Sessions. But the heavy draughts upon time and 
 strength to which he was continually subjected had not been permitted to divert 
 his mind from the cherished design of bestowing upon his profession a manual 
 of which it had long stood in urgent need. While laboring as a student of law, 
 and even after his admission to the bar, he had found his efforts for advance- 
 ment constantly obstructed, and often frustrated, by the want of a conveniently 
 arranged digest of that legal information which every student should have, and 
 which every practising lawyer must have, always ready for immediate use. 1 he 
 English Law Dictionaries — based upon the jurisprudence of another country, 
 incorporating peculiarities of the feudal law, that are to a great extent obsolete 
 even in England, only partially brought up to the revised code of Great Britain, 
 and totally omitting the distinctive features of our own codes — were manifestly 
 insufficient for the wants of the American lawyer. A Law Dictionary for the 
 profession on this side of the Atlantic should present a faithful incorporation of 
 the old with the new, — of the spirit and the principles of the earlier codes, and 
 
 1 Bouv. (xi)
 
 x ii BOUVIER'S LAW DICTIONARY AND INSTITUTES 
 
 the "newness of the letter" of modern statutes. The Mercantile Law, with the 
 large body of exposition by which it has been recently illustrated ; the Law of 
 Real Property in the new shape which, especially in America, it has latterly as- 
 sumed ; the technical expressions scattered here and there throughout the Con- 
 stitution of the United States, and the constitutions and laws of the several States 
 of the American Union, — all these, and more than these, must be within the law- 
 yer's easy reach if he would be spared embarrassment, mortification, and de- 
 cadence. 
 
 A work which should come up to this standard would indeed be an invaluable 
 aid to the profession; but what hope could be reasonably entertained that the 
 requisites essential to its preparation — the learning, the zeal, the acumen to an- 
 alyze, the judgment to synthesize, the necessary leisure, the, persevering industry, 
 and the bodily strength to carry to successful execution — would ever be combined 
 in one man? Mr. Bouvier determined that it should not be his fault if such a 
 work was not at least honestly attempted. Bravely he wrought, month in and 
 out, year in and out, rewarded for his self-denying toil by each well-executed ar- 
 ticle, and rejoicing, at rare and prized intervals, over a completed letter of the al- 
 phabet. 
 
 In 1839 the author had the satisfaction of presenting in two octavo volumes 
 the results of his anxious toils to his brethren and the world at large; and the. 
 approving verdict of the most eminent judges — Judge Story and Chancellor Kent, 
 for example — assured him that he had "not labored in vain," nor "spent his 
 strength for naught." This was well; but the author himself was the most rigid 
 and unsparing of his critics. Contrary to the practice of many writers, consider- 
 ing the success of the first and second editions as a proper stimulus to additional 
 accuracy, fulness, and completeness in every part, in 1848, when the third edition 
 was called for, the second having been published in 1843, he was able to announce 
 that he had not only "remodelled very many of the articles contained in the for- 
 mer editions," but also had "added upwards of twelve hundred new ones." He 
 also presented the reader with "a very copious index to the whole, which, at the 
 same time that it will assist the inquirer, will exhibit the great number of subjects 
 treated of in these volumes." 
 
 He still made collections on all sides for the benefit of future issues, and it was 
 found after the death of the author, in 1851, that he had accumulated a large 
 mass of valuable materials. These, with much new matter, were, by competent 
 editorial care, incorporated into the text of the third edition, and the whole was 
 issued as the fourth edition in 1852. The work had been subjected to a thorough 
 revision, — inaccuracies were eliminated, the various changes in the constitutions 
 of several of the United States were noticed in their appropriate places, and un- 
 der the head of "Maxims" alone thirteen hundred new articles were added. 
 
 That in the ensuing eight years six more editions were called for by the pro- 
 fession, is a tribute of so conclusive a character to the merits of the work that 
 eulogy seems superfluous. Let us, then, briefly examine those features to which 
 the great professicnal popularity of the Law Dictionary is to be attributed. Some 
 of these, specified as desiderata, have been already referred to with sufficient par- 
 ticularity. But it has been the aim of the author to cover a wider field than the 
 one thus designated. He has included in his plan technical expressions relating 
 to the legislative, executive, and judicial departments of the government; the 
 political and the civil rights and duties of citizens ; the rights and duties of per- 
 sons, especially such as are peculiar to the institutions of the United States, — 
 for instance, the rights of descent and administration, the mode of acquiring and 
 transferring property, and the criminal law and its administration. 
 
 He was persuaded — and here as elsewhere he has correctly interpreted the 
 wants of the profession — that an occasional comparison of the civil, canon, and 
 other systems of foreign law with our own would be eminently useful by way of 
 illustration, as well as for other purposes too obvious to require recital. We will 
 barely suggest the advantage to the student of civil law or canon law of having at 
 hand a guide of this character. And we would express our hope that the student 
 of civil or of canon law is not hereafter to be that vara avis in the United States 
 which, little to our credit, he has long been. He who would be thoroughly fur-
 
 BOUVIER'S LAW DICTIONARY AND INSTITUTES xiii 
 
 nished for his high vocation will not be satisfied to slake his thirst for knowledge 
 even at the streams (to which, alas! few aspire) of Bracton, Britton. or Fleta ; he 
 will ascend rather to the fountains from which these drew their fertilizing sup- 
 plies. 
 
 To suppose that he who draws up many thousands of definitions, and cites 
 whole libraries of authorities, shall never err in the accuracy of statement or the 
 relevancy of quotation, is to suppose such a combination of the best qualities of a 
 Littleton, a Fearne, a Butler, and a Ilargrave, as the world is not likely to behold 
 while law-books are made and lawyers are needed. If Chancellor Kent, after 
 "running over almost every article in" the first edition (we quote his own lan- 
 guage), was "deeply impressed with the evidence of the industry, skill, learning, 
 and judgment with' which the work was completed," and Judge Story expressed a 
 like favorable verdict, the rest of us, legal and lay, may, without any unbecoming 
 humiliation, accept their dicta as conclusive. We say legal and lay; for the lay 
 reader will make a sad mistake if he supposes that a Law Dictionary, especially 
 this Law Dictionary, is out of "his line and measure." On the contrary, the Law 
 Dictionary should stand on the same shelf with Sismondi's Italian Republics, Rob- 
 ertson's Charles the Fifth, Russell's Modern Europe, Guizot's Lectures, Hallam's 
 Histories, Prescott's Ferdinand and Isabella, and the records of every country in 
 which the influences of the canon law, the civil law, and the feudal law, separately 
 or jointly, moulded society, and made men, manners, and customs what they were, 
 and, to no small extent, what they still are. 
 
 In common with the profession on both sides of the water, Judge Bouvier had 
 doubtless often experienced inconvenience from the absence of an Index to Mat- 
 thew Bacon's New Abridgment of the Law. Not only was this defect an objec- 
 tion to that valuable compendium, but since the publication of the last edition there 
 had been an accumulation of new matter which it was most desirable should be 
 at the command of the law student, the practising lawyer, and the bench. In 
 1841 Judge Bouvier was solicited to prepare a new edition, and undertook the 
 arduous task. The revised work was presented to the public in ten royal octavo 
 volumes, dating from 1842 to 1846. With the exception of one volume, edited 
 by Judge Randall, and a part of another, edited by Mr. Robert E. Peterson. Judge 
 Bouvier's son-in-law, the whole of the labor, including the copious Index, fell up- 
 on the broad shoulders of Judge Bouvier. This, the second American, was 
 based upon the seventh English edition, prepared by Sir Henry Gwillim and 
 Messrs. C. E. Dodd and William Blanshard, and published in eight royal octavos 
 in 1832. In the first three volumes Bouvier confines his annotations to late Ameri- 
 can decisions ; but in the remaining volumes he refers to recent English as well 
 as to American Reports. 
 
 But this industrious scholar was to increase still further the obligations under 
 which he had already laid the profession and the public. The preparation of a 
 comprehensive yet systematic digest of American law had been for years a favorite 
 object of contemplation to a mind which had long admired the analytical system 
 of Pothier. Unwearied by the daily returning duties of his office and the bench, 
 and by the unceasing vigilance necessary to the incorporation into the text of his 
 Law Dictionary of the results of recent trials and annual legislation, he laid the 
 foundations of his "Institutes of American Law," and perseveringly added block 
 upon block, until, in the summer of 1851, he had the satisfaction of looking upon 
 a completed edifice. Lawyers who had hailed with satisfaction the success of his 
 earlier labors, and those who had grown into reputation since the results of those 
 labors were first given to the world, united their verdict in favor of this last work. 
 
 It is hardly necessary to remark that it was only by a carefully adjusted appor- 
 tionment of his hours that Judge Bouvier was enabled to accomplish so large an 
 amount of intellectual labor, in addition to that "which came upon him daily,"— 
 the still beginning, never ending, often vexatious duties connected with private 
 legal practice and judicial deliberation. He rose every morning at from four to 
 five o'clock, and worked in his library' until seven or eight : then left his home for 
 his office (where, in the intervals of business, he was employed on his "Law Dic- 
 tionary" or "The Institutes") or his seat on the bench, and after the labor of the 
 day wrought in his library from five o'clock until an hour before midnight.
 
 PARTIAL LIST OF WRITERS 
 
 WHO ASSISTED IN EDITING THE 
 EDITION OF 1867 
 
 Affidavit; Codes; Ex Post Facto; FalA 
 cidian Law; Feudal Lazv; Fiction;, 
 Foreign Lazu, &c. .•>••••] 
 
 Bankrupt Laws; Damages; Indorse-} 
 ment; Receipt, &c J 
 
 Corporations 
 
 Parties, &c. 
 
 Articles upon Maritime Law .... 
 
 Rescission of Contracts; Specific Per-~\ 
 iormomce, &c J 
 
 Letters Testamentary; Probate of a\ 
 Will, &c ...... s . . ./ 
 
 Abbreviations ; Construction; Costs, &c. 
 
 Ejectment, &c. 
 
 Statute of Frauds, &c. .'••-• . j 
 
 Austin Abbott, Esq., of the New 
 York Bar. 
 
 Author of a "Collection of Forms and 
 Pleadings in Actions;" "Reports of Cas- 
 es in Admiralty ;"' "Practice Reports;" 
 "Digest of Reports," &c. 
 
 'Benjamin Vaughan Abbott, Esq., of 
 the New York Bar. 
 
 Author of a "Collection of Forms and 
 Pleadings in Actions;" "Reports of Cas- 
 es in Admiralty;" "Practice Reports;" 
 "Digest of Reports," &c. 
 
 Hon. Samuel Ames, LL.D., Chief Jus- 
 tice of Rhode Island. 
 
 Author of "Treatise on the Law of 
 Private Corporations," &C. Editor of 
 
 Ames's "Reports.'' 
 
 Hon. Oliver Lorenzo Barbour, 
 Vice-Chancellor of New York. 
 
 Author of a "Treatise on Chancery 
 Practice;" "Set-Off;" "Criminal Law;" 
 &c. Editor of Barbour's "Reports." 
 
 E. C. Benedict, Esq., New York City. 
 
 'Hon. William H. Battle, IX.D., of 
 the Supreme Court of North Caro- 
 lina; Professor of Law in the Uni- 
 versity of North Carolina. 
 
 Hon. Alex. W. Bradford, LL.D., Ex- 
 Surrogate of New York. 
 
 Editor of Bradford's "Surrogate Re- 
 ports," &c. 
 
 F. C. Brightly, Esq., of the Philadel- 
 phia Bar. 
 
 Author of an "Analytical Digest of the 
 Laws of the United States;" "Treatise 
 on the Law of Costs;" "Equity Juris- 
 diction of the Courts of Pennsylvania," 
 &c. 
 
 [Causten Browne, Esq., of the Boston 
 Bar. 
 
 Author of a "Treatise on the Con- 
 l struction of the Statute of Frauds." 
 
 Hon. T. W. ClErke, LL.D., of the Su- 
 preme Court of New York. 
 
 Author of a "Digest of Cases Deter- 
 mined in Supreme Court of New York." 
 Editor of "Adams on Ejectment." 
 
 lBouv. 
 
 (siv)
 
 PARTIAL LIST OF WRITERS 
 
 XV 
 
 Slave; Slavery; Slave-Trade, &c. . 
 
 Abortion; Birth; Gestation; InfantiA 
 cide; Medical Jurisprudence; Prcg- >■ - 
 nancy, &c J 
 
 Abatement; Attachment, &c 
 
 Ancient Rights; Backwater; Bridge;' 
 Canal; Child; Chose in Act\ 
 Creek; Dam; Dedication; Father; 
 Ferry; Fishery; Highway; Inunda- 
 tion; Master; River; Roads; Street; 
 Thoroughfare; Tide; Tide-water ; 
 Turnpike; Water-way; Wharf; 
 Wharfinger, &c 
 
 Crime; Deed; Deposition; Descent;' 
 Distribution; Husband; Marriage; 
 Wife; Will, &c . . 8 , . . .. 
 
 Reports; Reporters, &c. 
 
 Trusts; Trustees; Presumptive Trusts, 
 &c 
 
 'Hon. T. R. R. Com. of Georgia. 
 Author of the '"Law of Negro S 
 &C. in the I'nited States." Editor of 
 l.b's Reports," Digests, &c. 
 
 'Amos Dean, LL.D., President of the 
 Law Department of the Albany Uni- 
 versity. 
 
 Author of Dean's "Medical Jurispru- 
 dence," &c. 
 
 Hon. Charles D. Drake, of the St 
 Louis Bar, United States Senator. 
 Author of "Drake on Attachments. " 
 
 Thomas DuRFEE, Esq., of Rhode Is- 
 land. 
 
 Author of a "Treatise on the Law of 
 Highways," &c 
 
 'Hon. Henry Dutton, LL.D., of the 
 Supreme Court of Com ecticut, Kent 
 Professor of Law in Yale College. 
 
 Author of a "Digest of Connecticut 
 Reports," &C. 
 
 [Hon. Theodore W. Dwight, LL.D., 
 A Professor of Law in Columbia Col- 
 y lege, New York. 
 
 JDorman B. Eaton, Esq., of the New 
 \ York Bar. 
 
 Accessary; Bargain and Sale; Bidder; 
 Conspiracy; Court-Martial; Escape; 
 Fee; Foreign Laws; Gift; Habitual 
 Drunkard; Hue and Cry; Labor; 
 Letter of Attorney; Letters Rogato- 
 ry; Misadventure; Misprision; Mis- 
 recital; Mistrial; Monument ; Mute; 
 Negative Pregnant; Nudum Pactum; 
 Offer; Pamphlets; Party-Wall; Per 
 Capita; Per Stirpes; Perpetuating 
 Testimony ; Poison; Provisions; 
 Public Stores; Quack; Receiver. 
 
 Bailee; Bailments, &c 
 
 Experts; Malpractice of Medical Men;' 
 Medical Evidence; Physicians; Sur- 
 geons, &c t 
 
 Computation; Fraction of a Day; Glos-\ 
 sators; Jus; Negligence; Time, Csic.J 
 
 'Charles Edwards, Esq., of the New 
 York Bar. 
 
 Author of a "Treatise on Receivers In 
 Equity," &c 
 
 'Isaac Edwards, Esq., of the Albany 
 Bar. 
 
 Author of a "Treatise on the Law of 
 k Bailments, Bills," &c. 
 
 J. J. Eewell, M. D., of Cleveland, 
 Ohio. 
 
 Author of "Medico-Legal Treal 6 
 Malpractice," and "Medical Evidence," 
 
 A. I. Fish, Esq., of the Philadelphia 
 Bar. 
 Editor of the "American Law Regls- 
 
 illia'iis on Executors;" "Di 
 Exchequer Reports," tkc 
 
 Editor 
 ter;" "V* 
 
 [ of Exclio,
 
 XVI 
 
 PARTIAL LIST OF WRITERS 
 
 Bar; Plea; Pleading, &c. 
 
 Chancellor; Chancery, &c. 
 
 Bottomry; Captain; Collision; Freight? 
 Master; Mate; Respondentia; and 
 many other articles relating to Ad- 
 miralty and Maritime Law .... 
 
 Articles relating to Criminal Law 
 
 Witness, &c. 
 Torts, &c. . 
 
 Conflict of Laws, &c. 
 
 Extradition; Fugitive from Justice ;\ 
 Fugitive Slave; Habeas Corpus J 
 
 Bondage; Freedom, &c. 
 
 [Hon. George Gould, LL.D., of the 
 -j Supreme Court of New York. 
 
 Editor of "Gould on Pleading," &c. 
 
 fHon. Henry W. Green, LL.D., Chan- 
 \ cellor of New Jersey. 
 
 'Hon. Nathan K. Hall, LL.D., Judge 
 of the United States District Court 
 for the Northern District of New 
 York. 
 
 fF. F. Heard, Esq., of the Middlesex 
 Bar. 
 
 Author of a "Treatise on Slander and 
 Libel;" Editor of "Leading Criminal 
 Cases;" "Precedents of Indictments," 
 &c. 
 
 /Hon. George S. Hillard, LL.D., of 
 \ the Boston Bar. 
 
 [Francis Hillard, Esq., of New York. 
 •{ Author of "Treatises on Real Proper- 
 
 [ ty;" "Mortgages;" "Sales;" "Torts," &c. 
 
 Hon. Murray Hofeman, LL.D., Judge 
 of the Superior Court of New York 
 City and County. 
 
 Author of a "Treatise on the Practice 
 of the Court of Chancery," &c. 
 
 Hon. R. C. Hurd, of Ohio. 
 
 Author of a "Treatise on the Right of 
 Personal Liberty," and on the "Writ of 
 Habeas Corpus," &c. 
 
 'J. C. Hurd, Esq., of the New York 
 Bar. 
 
 Author of the "Law of Freedom and 
 Bondage in the United States." 
 
 Actio; Actio Personalis; Advocati;') 
 Advocatus; Curia; Execution; For-V -j 
 urn; Obligatio, &c J 
 
 W. A. Ingham, Esq., of the Philadel- 
 phia Bar. 
 
 Alimony; Condonation; Divorce; NulA Jc Q LaxgdElIv Esq., of the New 
 hty of Marriage; Promise of Mar-V < y . g 
 ri'age; Separation a Mensa et Thoro) 
 
 Absolutism; Aristocracy ; Civil Liber- 
 ty; Constitution; Construction; De- 
 mocracy; Guerrilla Party; Herme- 
 neutics; Interpretation; Liberty; 
 Right; Self -Government; Sovereign- 
 ty; and many other articles . . . 
 
 Executors, &c. 
 
 {Francis LtEber, LL.D., Professor in 
 Columbia College, New York. 
 Author of "Civil Liberty," &c. 
 
 'Hon. J. Tayloe Lomax, late Professor 
 in the Law School of the University 
 of Virginia. 
 
 Author of a "Treatise on the Law of 
 Executors," &C.
 
 PARTIAL LIST OF WRITERS 
 
 XVII 
 
 Prize; Salvage; Wreck ; and other ar-\ 
 tides relating to Admiralty . . J 
 
 Limitations 
 
 Hon. William Marvin. Judge of the 
 i United States District Court for the 
 Southern District of Florida. 
 
 Author of a "Treatise on the Law or 
 Wrecks ami Salvage." 
 
 []. Wilder May, Esq., of the Boston 
 
 \ Bar. 
 
 I Editor of Angell on "Limitations." 
 
 Ancient Lights; Charities; Eascments;\ /Hon. William Curtis Noyes, LL.D., 
 Eminent Domain; Torture, &c. . J \ of the New York Bar. 
 
 Administrator, &c; Agreement; ApA 
 propriation of Payments; Condition; - 
 Consideration; Contract; Executor] 
 
 'Hon. Theophilus Parsons, LL.D., 
 Dane Professor of Law in Harvard 
 University. 
 
 Author of Treatises on the "Law of 
 Contracts;" "Maritime Law:" "Mercan- 
 tile Law;" "Promissory Notts," &c 
 
 Agency; Bailment; Equity; Evidenced f H ° n - J 01 ^ Parker, LL.D., Royal Pro- 
 & c >■ i fessor of Law in Harvard Univer- 
 J [ sity. 
 
 Hon. J. C. Perkins, LL.D., Chief Jus- 
 tice of the Court of Common Pleas 
 of Massachusetts. 
 
 Editor of Collyer on "Partnership;" 
 w Jarman on "Wills," &c. 
 
 Firm; Partners; Partnership; Profits; 
 &c 
 
 } 
 
 Guaranty; Suretyship C. A. Philips, Esq., of the Boston Bar. 
 
 Abandonment; Assignment; Assignee f) 
 Assignor; Assured; Barratry; and\ 
 the principal articles relating to the 
 law of Insurance 
 
 Idiocy; Imbecility; Insanity; and the" 
 articles relating to Insanity through- 
 out the work 
 
 fHon. Willard Phillips, LL.D., 
 President of the New England In- 
 surance Company. 
 Author of rhilliiis on "Insurance," «fcc. 
 
 Isaac Ray, M.D., LL.D., Superintend- 
 ent of the Butler Insane Asylum, 
 Providence, R. I. 
 
 Author of the "Medical Jurisprudence 
 of Insanity," &c. 
 
 Certiorari; Codicil; Common Carriers f\ 
 Criminal Lazv; Devise; Legacy; Leg~\ 
 atee; Mandamus; Railways; Revo-C 
 cation; Testament; Will, &c. . . J 
 
 'Hon. Isaac Redfield, LL.D., Chief 
 Justice of Vermont. 
 
 Author of "Treatises on the Law of 
 Railways, Executors, Administrators. 
 Wills," &c. 
 
 Civil Lazv; Dominion; Fidei CommisA 
 sa; Gens; Interdiction; Jus ad rem ;\ 
 Jus in re; Louisiana; Pater-familias; 
 Substitutions, &c 
 
 Christian Roselius, Esq., of the 
 New Orleans Bar, Professor of Law 
 in the University of Louisiana. 
 
 fGusTAVUS Schmidt, Esq.. of the New 
 New Definitions of Spanish Lanv-TermsS J Orleans Bar. 
 
 throughout the book / Author of the "Civil Law of Spain and 
 
 t Mexico." 
 
 Banks; Bank-Notes; Brokers; Cash-\ /Robert Sewell, Esq., of the New 
 ier; Finances; Financier; Interest J \ York Ear. 
 
 1 Bouv.— b
 
 XV111 
 
 PARTIAL LIST OF WRITERS 
 
 Bills; Foreign Laws; Gift, &c. 
 
 Assay; Assay Office; Bullion; Cent; 
 Dime; Director of the Mint ; Dollar; 
 Ducat; Florin; Foreign Coins; 
 Franc; Guilder; Half-Cent; Half- 
 Dime; Thaler 
 
 'Hon. George Sharswood, LL.D., As- 
 sociate Justice of the Supreme Court 
 of Pennsylvania ; Professor of Law 
 in the University of Pennsylvania. 
 
 Author of "Sharswood's Ethics;" Edi- 
 tor of "Blackstone's Commentaries," 
 "Russell on Crimes," "Roscoe on Crimi- 
 nal Evidence," &c. 
 
 'J. Ross Snowden, Esq., late Director 
 of the United States Mint at Phila- 
 delphia. 
 
 Author of "Coins of the World," &c. 
 
 Insolvency; Insolvent Estates, &c. 
 
 Foetus; Quickening ; Viability, &c. 
 
 Custom; Entry; Fixtures; Joint-Ten-') 
 ant; Jury; Landlord; Magna Char- ] 
 ta; Rent; Sheriff; Tenant; Tenure, 
 &c 
 
 Quo Warranto; Scire Facias . . . 
 
 Injunction, &c. 
 
 R. D. Smith, Esq., of the Boston Bar. 
 
 {James Stewart, M.D., of New York 
 City. 
 Author of a Treatise on the "Diseases 
 of Children." 
 
 {John N. Taylor, Esq., of the New 
 York Bar. 
 Author of a Treatise on the "Law of 
 Landlord and Tenant," &c. 
 
 /Samuel, Tyler, Esq., of the Maryland 
 \ Bar. 
 
 /Hon. Reuben H. Walworth, LL.D., 
 I Chancellor of New York. 
 
 Covenant; Real; Real Property, &c. . 
 
 'Hon. Emory Washburn, LL.D., Pro- 
 fessor of Law in Harvard Univer- 
 sity. 
 
 Author of a Treatise on the "Law of 
 Real Property," &c. 
 
 Admiralty ; Master; Privilege; United) 
 States; and other articles relating toV 
 Admiralty J 
 
 Agency; Agent; Authority; Delega-" 
 tion; Misdirection; Newly Discover- 
 ed Evidence; Nezv Trial; Price ;X 
 Principal, &c J 
 
 'Hon. Ashur Ware, LL.D., Judge of 
 the United States District Court for 
 Maine. 
 Editor of Ware's "Admiralty Reports." 
 
 'Thomas W. Waterman, Esq., of the 
 New York Bar. 
 
 Author of Treatises on the "Law of 
 New Trials;" Editor of Eden on "In- 
 junctions," "American Chancery Digest," 
 &c. 
 
 Guarantor; Surety, &c. 
 
 International Law, &c. 
 
 /Joseph Willard, Esq., of the Boston 
 \ Bar. 
 
 f Theodore D. Woolsey, LL.D., Pres- 
 J ident of Yale College. 
 
 Author of a Treatise on "Internation- 
 L al Law," &c
 
 [DEDICATION OF THE FIRST EDITION] 
 
 TO THE HONORABLE 
 
 JOSEPH STORY, LL.D. 
 
 ONE OF THE JUDGES OF THE SUPREME 
 COURT OF THE UNITED STATES 
 
 THIS WORK IS, WITH HIS PERMISSION, 
 MOST RESPECTFULLY DEDICATED, AS 
 A TOKEN OF THE GREAT REGARD 
 ENTERTAINED FOR HIS TALENTS, 
 LEARNING, AND CHARACTER, 
 BY THE AUTHOR 
 
 (iix)t
 
 A 
 
 LAW DICTIONARY 
 
 CONCISE ENCYCLOPEDIA 
 
 A TABLE OF ABBREVIATIONS WILL BE FOUND UNDER THE TITLE ABBREVIATION 
 
 A 
 
 A. The first letter of the alphabet I. In Civil Law and by Bracton, a synonym 
 
 It is used to distinguish the first page of for e transvcrso, across; Bract fol. G7u. 
 
 a folio, the second being marked "6," thus: 
 Coke, Litt. 114«, l\4b. It is also used as 
 
 an abbreviation for many words of which 
 it is the initial letter. See Abbbkviation. 
 
 In Latin phrases it is a preposition, de- 
 noting from, by, in, on, of, at, and is of 
 common use as a part of a title. 
 
 In French phrases it is also a preposition, 
 denoting of, at, to, for, in, with. 
 
 The article "a" is not necessarily a singu- 
 lar term, it is often used in the sense of 
 "any," and is then applied to more than 
 one individual object ; National Union Bank 
 r. Copeland, 141 Mass. 2CG, 4 N. E. 794; 
 Snowden v. Guion, 101 N. Y. 458, 5 N. E. 
 322 ; Thompson v. Stewart, GO la. 225, 14 N. 
 W. 247; sometimes as the; 23 Ch. Div. 595. 
 
 Among the Romans this letter was used in crim- 
 inal trials. The judges were furnished with small 
 tables covered with wax, and each one inscribed on 
 it the initial letter of his vote: A (absolvo) when 
 he voted to acquit the accused; C (condemno) 
 when he was for condemnation; and N L (non 
 liquet), when the matter did not appear clearly, and 
 he desired a new argument. 
 
 The letter A (1. e. antiquo, "for the old law") 
 ascribed upon Roman ballots under the Lex 
 TabcUaria, to indicate a negative vote; Tayl. Civ. 
 Law, 191, 192. 
 
 An abbreviation of adversus used for ver- 
 sus, indicating the parties to an action. 
 
 An adulteress among the Purkans was 
 condemned to wear the initial letter "A" 
 in red cloth on her dress. 
 
 Applied also to a process or proceeding ; 
 Keilw. 159. 
 
 Out of the regular or lawful course; in- 
 cidentally or casually. Applied to the acts 
 of strangers, or persons having no legal in- 
 terest; Bract fol. 42/;/ Fleta, lib. 3, c. 15, 
 § 13. Confirmatio a latere facta, a confirma- 
 tion made by one having no legal Interest ( a 
 non domino); Bract, fol. 58a. 
 
 At the side of a person; referring to or 
 denoting intimacy of connexion. Jr. 
 of the Curia Regis are described as c I 
 regis residentes, sitting at the side of the 
 King; Bract, fol. 10Sa; 2 Reeves Hist Eng. 
 L. 250. 
 
 From the side of; denoting closeness of 
 Intimacy or connexion ; as a court held be- 
 fore auditors . ; • oialiter a latere regis des- 
 tinati.s; Fleta. lib. 2, c. 2, § 4. 
 
 Apostolic ; having full powers to repre- 
 sent the Pope as if he were present. Du 
 Cange, Legati a latere; 4 Bla. Com. 30G. 
 
 A ME ( I. at ego, I). A term in feudal 
 denoting direct tenure of the su 
 lord, li Bell, II. !.. Sc. 133. 
 
 Unjustly detaining from me. He is said 
 to withhold a me (from me) who has ob- 
 tained possession of my property unjustly. 
 ( a 1 vinus, Lex. 
 
 To pay a me, is to pay from my money. 
 
 ACONSILIIS. A counsellor. Spelin. Gloss. 
 
 A FORTIORI (Lat). With stronger rea- 
 son ; much more. 
 
 A LATERE (Lat. latus, side). Collateral. 
 Used in this sense in speaking of the suc- 
 cession to property. Bract. 2Ufr, G2o. 
 
 From, on, or at the side ; collaterally. 
 llwrcdes a latere venientes, heirs succeed- 
 ing collaterally. A latere ascendit (jus). 
 The right ascends collaterally. 
 
 Bouv.— 1 (1) 
 
 A MENSA ET TH0R0 (Lat. from table 
 and bed, but more commonly 
 from bed and board). A kind of dj 
 which is rather a separation of the parties 
 by law, than a dissolution of the mar 
 See Divo ■ 
 
 A NATIVITATE. 
 Com. 332: Reg. Orig. 2G66. 
 
 birth. 3 
 
 A POSTERIORI i Lat). From the effect 
 to the cause; from what comes af i p.
 
 A PRENDRE 
 
 AB INITIO 
 
 A PRENDRE (Fr. to take, to seize). 
 Rightfully taken from the soil. 5 Ad. & E. 
 TCI ; 1 N. & P. 172; Waters v. Lilley, 4 Pick. 
 (Mass.) 145, 16 Am. Dec. 333. 
 
 Used in the phrase profit a prendre (q. v.) which 
 differs from a right of way or other easement which 
 coin", rs no interest in the land itself. 5 B & C. 221 ; 
 2 Washb. R. P. 25. 
 
 A PRIORI (Lat). From the cause to the 
 effect ; from what goes before. 
 
 A QUO (Lat.). From which. A court a 
 quo is a court from which a cause has been 
 removed. The judge a quo is the judge in 
 such court. Clegg v. Alexander, 6 La. 339. 
 Its correlative is ad quern. 
 
 A REND RE (Fr. to render, to yield). 
 Which are to be paid or yielded. Profits a 
 rendre comprehend rents and services; Ham- 
 mond, Nisi P. 192. 
 
 A RETRO (Lat). In arrear. Fleta, lib. 
 2, c. 55, § 2 ; id. c 62, § 14. 
 
 A RUBRO AD NIGRUM (Lat. from red to 
 black). From the (red) title or rubric to 
 the (black) body of the statute. It was an- 
 ciently the custom to print statutes in this 
 manner ; Erskine, Inst. 1, 1, 49. 
 
 A. JJ. C. Lat. ab urbe condita. From 
 the foundation of the city, Rome. The era 
 from which Romans computed time, being 
 assumed to be 753 years before the Christian 
 Era. 
 
 A VINCULO MATRIMONII (Lat. from the 
 bond of matrimony). A kind of divorce 
 which is a dissolution of the marriage con- 
 tract or relation. See Divorce. 
 
 AB ACTIS (Lat actus, an act). A no- 
 tary ; one who takes down words as they are 
 spoken. Du Cange, Acta; Spelm. Gloss. 
 Cancellarius. 
 
 A reporter who took down the decisions 
 or acta of the court as they were given. 
 
 AB ANTE (Lat. ante, before). In ad- 
 vance. 
 
 A legislature cannot agree ab ante to any 
 modification or amendment to a law which 
 a third person may make ; Allen v. McKean, 
 1 Sumn. 308, Fed. Cas. No. 229. 
 
 AB ANTECEDENTE (Lat antecedens). 
 Beforehand. 5 M. & S. 110. 
 
 AB EXTRA (Lat extra, beyond, without). 
 From without. Lunt v. Holland, 14 Mass. 
 151. 
 
 AB INCONVENIENTI (Lat. inconveniens). 
 From hardship; from what is inconvenient. 
 An argument ab inconvenienti is an argu- 
 ment drawn from the hardship of the case. 
 
 AB INITIO (Lat. initium, beginning). 
 From the beginning ; entirely ; as to all the 
 acts done ; in the inception. 
 
 An estate may be said to be good, an agreement 
 to be void, an act to be unlawful, a trespass to 
 have existed, ab initio; Plowd. 6a; 11 East 395; 
 Backrider v. M'Donald, 10 Johns. (N. Y.) 253 ; Hop- 
 
 kins v. Hopkins, id. 3G9 ; 1 Bla. Com. 440. See Ad, 
 Eq. 186. Webb's Poll. Torts Wald's ed. 477. See 
 Trespass ; Trespasser. 
 
 Before. Contrasted in this sense with ex 
 post facto, 2 Shars. Bla. Com. 308; or with 
 postea, Calvinus, Lex., initium. 
 
 AB INTESTAT. Intestate. 2 Low. Can. 
 219. Merlin, Repert 
 
 AB INTESTATO (Lat. tcstaius, having 
 made a will). From an intestate. Used 
 both in the common and civil law to denote 
 an inheritance derived from an ancestor who 
 died without making a will ; 2 Shars. Bla. 
 Com. 490 ; Story, Confl. L. 4S0. 
 
 AB INVITO (Lat. invitum). Unwillingly. 
 See Invitum. 
 
 AB IRATO (Lat iratus, an angry man). 
 By one who is angry. A devise or gift made 
 by a man adversely to the interest of his 
 heirs, on account of anger or hatred against 
 them, is said to be made ab irato. A suit to 
 set aside such a will is called an action ab 
 irato; Merlin, Repert Ab irato. 
 
 AB URBE CONDITA. See A. U. C. 
 
 ABACTOR (Lat ab and agere, to lead 
 away). One who stole cattle in numbers. 
 Jacob, Law Diet. One who stole one horse, 
 two mares, two oxen, two she-goats, or five 
 rams. Abigeus was the term more common- 
 ly used to denote such an offender. 
 
 ABADENGO. Spanish Law. Lands, town, 
 and villages belonging to an abbot and un- 
 der his jurisdiction. All lands belonging to 
 ecclesiastical corporations, and as such ex- 
 empt from taxation; Escriche, Dice. Raz. 
 
 Lands of this kind were usually held in mortmain, 
 and hence a law was enacted declaring that no land 
 liable to taxation could be given to ecclesiastical 
 institutions ("ningun Realengo non pose a aba- 
 dengo"), which is repeatedly insisted on. 
 
 ABALIENATIO (Lat. alienatio). The 
 most complete method used among the Ro- 
 mans of transferring lands. It could take 
 place only between Roman citizens. Cal- 
 vinus, Lex., Abalienatio; Burr. Law. Die. 
 
 ABAMITA (Lat). The sister of a great- 
 great-grandfather. Calvinus, Lex. 
 
 ABANDON. To relinquish; forsake; give 
 up. The word includes the intention. And 
 the external act by which it is carried into 
 effect. See Abandonment. 
 
 An abandonee is the person in whose favor 
 the property or right is abandoned. 5 M. 
 & S. 79. 
 
 ABANDONED AND CAPTURED PROP- 
 ERTY ACT. The act of Congress of March 
 12, 1863, relating to certain property in the 
 Confederate States. It expressly excludes 
 from its operation property which had been 
 used to carry on war against the United 
 States. August 20, 1866, is, as to the opera- 
 tion of the act the date of the end of the 
 war.
 
 ABANDONED 
 
 ABANDONMI.XT 
 
 Congress constituted the government trus- 
 tee for so much of such property as belonged 
 to the faithful Southern people; it v 
 reeled to he sold and the proceeds paid into 
 the treasury, claimants haying two years to 
 bring suit in the Court of Claims; U. S. v. 
 . Wall. (U. S.) 5G, 10 L. Ed. 615. 
 Jt was the property which had been seized 
 or taken from the enemy's possession by the 
 1 States forces; Bigelow v. Forrest, 9 
 Wall. (TJ. S.) 351, 1'.) L. Ed. 096. 
 
 ABANDONMENT. Relinquishment; re- 
 nuneiation : surrender. 
 
 Relinq lishment of a right or of property 
 with the intention of not reclaiming it or 
 resinning its ownership or enjoyment. The 
 relinquishment or surrender of rights or 
 property by one person to another. This 
 last definition was adopted in Hickman v. 
 Link, 116 Mo. 123, 22 S. \V. 472, and there- 
 fore it is deemed proper to leave it undis- 
 turbed, although it is not technically accu- 
 rate as to all the sub-titles of Abandonment 
 This definition first appeared in the edition 
 of 1867, in which the author of the title was 
 Mr. Phillips, author of "Insurance," etc 
 Abandonment of rights or property generally 
 cannot legally be made to a specified per- 
 son. As used in Insurance Law, however, 
 it does involve the relinquishment of the 
 property insured to a specified person — the 
 insurer. As Mr. Phillips was not only an 
 able writer on Insurance Law but also pres- 
 ident of an insurance company, he doubtless 
 had the particular form of abandonment 
 known in that branch of the law, most prom- 
 inent in his mind, and it is not improbable 
 that the definition was not intended as a 
 general one, but only of those forms of aban- 
 donment to which it applied. This seems 
 manifest from the fact that the term is cor- 
 rectly defined in the sub-titles with reference 
 to their respective subject matters. 
 
 It is a matter of intention and consists in 
 giving up a thing without reference to a 
 particular person or purpose ; there can be 
 none to a definite person ; Norman v. Corb- 
 ley, 32 Mont. 195, 79 Pac. 1059 ; or for a con- 
 sideration ; Watts v. Spencer, 51 Or. L' 
 Pac. 39. As applied to property rights it con- 
 sists of nonuser and intention; Alamosa 
 Creek Canal Co. v. Nelson, 42 Colo. 140, 93 
 Pac. 1112. A transaction which fails as a 
 sale cannot be converted into an abandon- 
 ment; Watts v. Spencer. 51 Or. 262, 94 Pac, 
 39. Abandonment implies a relinquishment 
 to the public generally, or to the next comer 
 — a surrender to a particular person not be- 
 ing an abandonment; Stephens v. Mansfield, 
 11 Cal. 363. Of two persons both interested 
 in a water right, neither party can abandon 
 to the other; Norman v. Corbley, 32 Mont 
 195. 79 Pac. 1059. 
 
 In Civil Law. The act by which a debt- 
 or surrenders his property for the benefit of j 
 
 his creditors; Merlin, Repert See . 
 DomfEiTT fok Torts. 
 
 In Maritime Law. The act by \ 
 
 'i wner of a ship surrenders the ship and 
 
 i to a creditor wh come such 
 
 by contracts made by the 
 
 such al :. t is to re- 
 
 lease the owner fro 
 hiiity. The " in case of contra 
 
 Limited to those of a marith 
 thier, Chart. Part. sec. 2, art. 
 
 amerce, lib. 2, tit. i'. art 216. Similar 
 Ions exist in England and the I 
 i to some extent; 1 Par. Mar. Law, 
 395; Pope v. Nlckerson, 3 Bto. 
 No. 11,274; American Transp. Co. v. )' 
 5 Midi. 308. Under the Act of Congr< 
 1851, March 3 (Rev. Stat. D. S. | 
 liability of the shipowners for a col 
 may be discharged by surrendering and as- 
 signing the vessel and freight to a trustee 
 for the benefit of the parties injured, though 
 these have been diminished in value by the 
 collision; when they are totally di 
 would seem that the owners are disch. 
 Norwich Co. v. Wright, 13 Wall. (U. S. 
 20 L. Ed. 585; Wright v. Transp. Co., 8 
 Blatchf. 14, Fed. Cas. No. 18,087; overruling 
 Walker v. Ins. Co., 14 Cray (M 
 Barnes v. Steamship Co.. 6 I'hila. 47: 
 Cas. No. 1,021. This is not the case under 
 the English statutes. 2 My. & Cr. 489; 
 15 M. & W. 391; 2 B. & A.! 
 
 Insurers notified that vessel is abandoned 
 to them, after which owner and master take 
 no steps to save vessel, does not relieve the 
 insurers of liability on pqlicy of Insui 
 The Natchez, 42 Fed. 169. A schooner was 
 stranded and crew taken off by life-saving 
 crew, the master expecting to return on 
 board, and with no intention of abandoning 
 her; a tug took schooner in tow to New 
 York, and it was held that salvage service 
 should be allowed; The S. A. Rudolph, 39 
 Fed. 331. A vessel is not abandoned unless 
 its possession is voluntarily forsaken by its 
 owner or master; The Mary, 2 Wheat (U. 
 S.) 123. 4 L. Ed. 200. 
 
 By Husband or Wife. The act of a hus- 
 band or wife who leaves his or her cot 
 willfully, and with an intention of causing 
 perpetual separation. See I 1 
 
 In Insurance. The transfer by an assured 
 to his underwriters of his interest in the 
 Insured subject or the proceeds of it. or 
 claims arising from it. so far as the - 
 is insured by the policy, in order to recover 
 as for a total 1 
 
 "An abandonment is an act on the part of 
 the assured, by which he relinquishes and 
 transfers to the underwriters his insurable 
 r, or the proceeds of it or the claims 
 arising from it, so far as it is insured by 
 the policy." 2 Phil. Ins. § 1490. 
 
 The term is use! 'y in reference to risks 
 in navigation; but the principle is applica-
 
 ABANDONMENT 
 
 ABANDONMENT 
 
 ble in fire insurance, where there are rem- 
 nants, and sometimes also under stipulations 
 in life policies in favor of creditors; 2 Phil. 
 Ins. §§ 1490, 1514, 1515; 3 Kent 2G5 ; Cincin- 
 nati Ins. Co. v. Duffield, 6 Ohio St 200, 67 
 Am. Dec. 339; 6 East 72. 
 
 The doctrines which have obtained in ma- 
 rine insurance of constructive total loss and 
 abandonment, salvage and general average, 
 are not applicable in fire insurance ; May, 
 Ins. § 421 a ; Hicks v. McGehee, 39 Ark. 264. 
 
 The object of abandonment being to recov- 
 er the whole value of the subject of the in- 
 surance, it can occur only where the subject 
 itself, or remains of it, or claims on account 
 of it, survive the peril which is the occasion 
 of the loss ; 2 Phil. Ins. §§ 1507, 1516 ; 2 Pars. 
 Mar. Ins. 120; 36 Eng. L. & Eq. 198; 3 Kent 
 321 ; 3 Bing. N. C. 266. In such case the as- 
 sured must elect, immediately on receiving 
 intelligence of a loss, whether to abandon, 
 and not delay for the purpose of speculating 
 on the state of the markets; 2 Phil. Ins. § 
 16G7. He may have a reasonable time to in- 
 spect the cargo, but for no other purpose; 3 
 Kent 320. He must give notice promptly to 
 the insurer of his intention; five days held 
 too late ; 5 M. & S. 47 ; see L. R. 5 C. P. 341. 
 Notice of the abandonment of a vessel need 
 not be given to insurers or reinsurers where 
 there is a constructive total loss ; 15 Q. B. 
 D. 11 ; and delay in giving notice, if it does 
 not prejudice the insurer, will not affect the 
 rights of the insured; Young v. Ins. Co., 24 
 Fed. 279. In cases of actual total loss, no- 
 tice of abandonment is unnecessary ; Tyser, 
 Mar. Ins. § 33. 
 
 In America, it appears that the right of 
 abandonment is to be judged by the facts 
 of each particular case as they existed at 
 the time of abandonment; Peele v. Ins. Co., 
 3 Mas. 27, Fed. Cas. No. 10,905 ; 2 Phil. Ins. 
 § 1536; Bradlie v. Ins. Co., 12 Pet. (U. S.) 
 378, 9 L. Ed. 1123. In England, the aban- 
 donment may be effected by subsequent occur- 
 rences, and the facts at the time of action 
 brought determine the right to recover; 4 
 M. & S. 394; 2 Burr. 1198. But this rule 
 has been doubted in England; 2 Dow 474; 
 3 Kent 324. 
 
 By the doctrine of constructive total loss, 
 a loss of over one-half of the property in- 
 sured, or damage to the extent of over one- 
 half its value, by a peril insured against, 
 may be turned into a total loss by abandon- 
 ment; 2 Beach, Ins. § 948; Dwpuy v. Ins. 
 Co., 3 Johns. Cas. (N. Y.) 182; Allen v. Ins. 
 Co., 1 Gray (Mass.) 154. This does not ap- 
 pear to be the English rule; 9 C. B. 94; 1 
 H. of L. 513. See Forbes v. Ins. Co., 1 Gray 
 (Mass.) 371. 
 
 The right is waived by commencing re- 
 pairs ; 2 Pars. Mar. Ins. 140 ; Humphreys v. 
 Ins. Co., 3 Mas. 429, Fed. Cas. No. 6,871; 
 Dickey v. Ins. Co., 3 Wend. (N. Y.) 658, 20 
 Am. Dec. 703; Depau v. Ins. Co., 5 Cow. (N. 
 
 Y.) 63, 15 Am. Dec. 431; 4 App. Cas. 755; 
 but not by temporary repairs ; 2 Phil. Ins. 
 § 1540; but is not lost by reason of the en- 
 hancement of the loss through the mere neg- 
 ligence or mistakes of the master or crew. 
 It is too late to abandon after the arrival 
 in specie at the port of destination ; 2 Pars. 
 Mar. Ins. 128 ; 4 H. of D. 24 ; Pezant v. Ins. 
 Co., 15 Wend. (N. Y.) 453. See Peters v. 
 Ins. Co., 3 S. & R. (Pa.) 25. An inexpedient 
 or unnecessary sale of the subject by the 
 master does not strengthen the right; 2 
 Phil. Ins. §§ 1547, 1555, 1570. But the fact 
 that the master only takes steps for the safe- 
 ty or recovery of the thing insured, will not 
 deprive the owners of the right to abandon ; 
 Tyser, Mar. Ins. § 28. See Salvage; Total 
 Loss. 
 
 No notice of abandonment is necessary 
 where owner loses his rights in a vessel by 
 sale under decree of court of competent ju- 
 risdiction, in consequence of peril insured 
 against; 13 App. Cas. 160. 
 
 Abandonment may be made upon informa- 
 tion entitled to credit, but if made specula- 
 tively upon conjecture, it is null. 
 
 In the absence of any stipulation on the 
 subject, no particular form of abandonment 
 is required ; it may be in writing or oral, in 
 express terms or by obvious implication (but 
 see 1 Campb. 541) ; but it must be absolute 
 and unconditional, and the ground for it 
 must be stated; 2 Phil. Ins. §§ 1678, 1679 
 et seq.; Bullard v. Ins. Co., 1 Curt. C. C. 
 148, Fed. Cas. No. 2,122; Bell v. Beveridge, 
 4 Dall. (U. S.) 272, 1 L. Ed. 830; Peirce 
 v. Ins. Co., 18 Pick. (Mass.) 83, 29 Am. Dec. 
 567; see Macy v. Ins. Co., 9 Mete. (Mass.) 
 354; Citizens Ins. Co. v. Glasgow, 9 Mo. 416. 
 Acceptance may cure a defect in abandon- 
 ment, but is not necessary to its validity ; 
 
 2 Phil. Ins. § 1689. Nor is the underwriter 
 obliged to accept or decline. He may, how- 
 ever, waive it; 2 Phil. Ins. § 1698. But it 
 is not subject to be defeated by subsequent 
 events ; 2 Phil. Ins. § 1704 ; Peele v. Ins. Co., 
 
 3 Mas. 27, 61, Fed. Cas. No. 10,905 ; Hum- 
 phreys v. Ins. Co., 3 Mas. 429, Fed. Cas. No. 
 6,871 ; Rhinelander v. Ins. Co., 4 Cran. (U. 
 S.) 29, 2 L. Ed. 540; Schieffelin v. Ins. Co., 
 9 Johns. (N. Y.) 21. See supra. And the 
 subject must be transferred free of incum- 
 brance except expense for salvage; Allen v. 
 Ins. Co., 1 Gray (Mass.) 154; Depau v. Ins. 
 Co., 5 Cow. (N. Y.) 63, 15 Am. Dec. 431. 
 The right to abandon being absolute under 
 proper circumstances, no acceptance is nec- 
 essary. It is only when the circumstances 
 do not warrant abandonment that the ques- 
 tion of the validity of acceptance arises. If 
 there is an acceptance it must be by some 
 distinct and unequivocal act ; 29 N. B. 510 ; 
 but the insurer is not bound to signify ac- 
 ceptance and his silence justifies the conclu- 
 sion of non-acceptance; Peele v. Ins. Co., 3 
 Mas. 27, Fed. Cas. No. 10,905, per Story, J.,
 
 ABANDONMENT 
 
 s 
 
 ABANDONMENT 
 
 whose ruling was followed In L. R. 6 P. C. [ 
 221, in preference to 3 Brod. & B. 97, where 
 it was held that the insurer must elect with-! 
 in a reasonable time whether to accept But 
 if the insurer does not accept, either express- ; 
 ly or by some act amounting to it, he can- 
 not hold the assured to the abandonment; 
 Child v. Ins. Co., 2 Sandf. (N. Y.) 76; 
 Whether the insurer accepts is a matter of 
 construction of his words and conduct; 
 Richelieu & O. Nav. Co. v. Ins. Co., 136 U. 
 S. 408, 10 Sup. Ct. 934, 34 L. Ed. 398; Badg- 
 er v. Ins. Co., 23 Pick. (Mass.) 347; S 
 ton v. Ins. Co., 132 N. Y. 298, 30 N. E 
 See note. 45 L. Ed. 1, where the subject is 
 examined. There may be an acceptance 
 h there was rrnt strictly a right of 
 abandonment; Copelin v. Ins. Co., 9 Wall. 
 (U. S.) 461, 19 L. Ed. 739. It may be con- 
 structive and is implied from taking posses- 
 sion to raise and repair; Peele v. Ins. Co., 
 
 3 Mas. 27. Fed. Cas. No. 10.90.-,; Gloucester 
 Ins. Co. v. Younger, 2 Curt. 322. Fed. Cas. 
 No. 5,487; but not from partial repairs and 
 restoration of the property; Marmaud v. 
 Melledge, 123 Mass. 173; Peele v. Ins. Co., 
 7 Pick. (Mass.) 254, 19 Am. Dec. 286; though 
 in such case the return must be made in a 
 
 liable time; id.; Reynolds v. Ins. Co., 
 22 Pick. (Mass.) 191. 33 Am. Dec. 727; Cop- 
 elin v. Ins. Co., 46 Mo. 211, 2 Am. Rep. 504; 
 Norton v. Ins. Co., 16 111. 235; Copelin v. 
 Ins. Co., 9 Wall. (U. S.) 461, 19 L. Ed. 739; 
 Young v. Ins. Co., 24 Fed. 279. The effect of 
 a valid abandonment is to put the insurer 
 in the place of the insured with no greater 
 right but entitled to all that can be saved; 
 Insurance Co. v. Gossler, 96 U. S. 645, 24 L. 
 Ed. 86:*.; and the owner becomes the agent 
 of the underwriter and is bound to protect 
 his interest ; Columbian Ins. Co. v. Ashby, 
 
 4 Pet (U. S.) 139, 7 L. Ed. 809; Richelieu 
 & O. Nav. Co. v. Ins. Co., 136 U. S. 408, 10 
 Sup. Ct. 934, 34 L. Ed. 398. See Total Loss. 
 
 Of Public Highway. Non-user of public al- 
 or over 40 years in connection with af- 
 firmative acts of abandonment, justifies a 
 finding that it cease to be a public highway ; 
 Woodruff v. Paddock, 130 N. Y. 618, 29 N. E. 
 1021. id., 56 Hun 28S, 9 N. Y. Supp. 381. En- 
 croachment on public highway outside of 
 traveled track and use thereof by a private 
 party for 10 years did not necessarily show 
 abandonment of the highway ; Village of 
 Grandville v. Jenison, S4 Mich. 54, 47 N. W. 
 600. 
 
 Of Public Lands. Title from the state, un- 
 der a patent, is not affected by the doctrine 
 of abandonment, unless, in consequence, title 
 is acquired by adverse possession; Kreamer 
 v. Voneida, 213 Ta. 74, 62 Atl. 51S. .The ti- 
 tle once passed is never revested by aban- 
 donment; id., 24 Pa. Super. 347. 
 
 It has been held that the use of property 
 for public purposes may be abandoned for so 
 long a time as to prevent the assertion of a 
 
 private proprietary interest as against an 
 improving possessor ; Collett v. Board of 
 119 Ind. 27, 21 N. E. 329, 4 L. R. A. 
 321. Failure to pay interest on school lands 
 for 15 years with no assertion of ownership 
 will prevent assertion of title 
 sequent purchaser from the state who has 
 been in possession of property for 10 j ■ 
 Richardson v. Doty, 25 Neb. 420, 41 N. W. 
 282. 
 
 Of Rights. The relinquishment of a right. 
 It Implies some act of relinquishment done 
 by the owner without regard to any future 
 possession by himself, or by any other per- 
 son, but with an intention to abandon : 14 
 M. & W. 7S9; Dyer v. Sanford, 9 Mete. 
 (Mass.) 395, 43 Am. Dec. 399; Dawson v. 
 Daniel, 2 Flip. 309, Fed. Cas. No. 3,669. 
 Mere non-user does not necessarily or usu- 
 ally constitute an abandonment : 
 v. Wiley, 10 Pick. (Mass.) 3 ins v. 
 
 Dunham, 3 Strobh. (S. C.) 224; Elliott v. 
 Rhett, 5 Rich. (S. C.) 405, 57 Am. De< 
 Jewett v. Jewett, 16 Barb. (N. Y.) 150; see 
 Tud. Lead. Cas. 130; 2 Washb. B. P 
 There must be actual relinquishment and in- 
 tention to abandon ; Log-Owners' Booming 
 Co. v. Hubbell, 135 Mich. 65, 97 N. W. 157, 
 4 L. R. A. (N. S.) 573; Fugate v. Pierce, 49 
 Mo. 441 ; Eisele v. Oddie, 128 Fed. 941 : Fofi 
 ter v. Hobson, 131 la. 58, 107 N. W. 1101; 
 Carroll County Academy v. Academy Co., 
 104 Ky. 621, 47 S. W. 617 ; Watts v. Spencer, 
 51 Or. 262, 94 Pac. 39. Intention may be 
 shown by inferential proof; Enno-Sander 
 Mineral Water Co. v. Fishman, 127 Mo. App. 
 207, 104 S. W. 1156: United Shoe Mach. Co. 
 v. Mach. Co., 197 Mass. 2u6, 83 N. E. 412. 
 It cannot be inferred from non-user alone ; 
 Doty v. Gillett, 43 Mich. 203, 5 N. W. 89. 
 Nor does it result from failure to take pos- 
 session of land for a period less than would 
 give title by adverse possession ; Kreamer v. 
 Voneida, 24 Pa. Super. 347; from failure to 
 pay taxes; id.; or from mere temporary ab- 
 sence; Hurt v. HoUingsworth, 100 U. S. 104. 
 25 L. Ed. 569. But failure to pay taxes or 
 exercise rights of ownership for over 20 years, 
 coupled with possession of and improvement 
 by another under color of title is evidence 
 of abandonment; Timber v. Desparois, IS 
 S. D. 5S7. 101 N. W. S79; or coupled with 
 other acts showing intention not to repos- 
 sess himself: Alamosa Creek Canal Co. v. 
 Nelson, 42 Colo. 140, 93 Pac. 1112. For old- 
 er cases see 5 L. R. A. 259, note. 
 
 Abandonment is properly confined to in- 
 corporeal hereditaments, as legal rights once 
 vested must be divested according to law, 
 though equitable rights may be abandoned; 
 Great Falls Co. v. Worster, 15 N. H. 412: 
 see Cringan v. Nicolsofc'a Ex'rs, 1 Hen. & 
 M. (Va.) 429; and an abandonment combined 
 with sufficiently long possession by another 
 party destroys the right of the original own- 
 er; Gregg v. Blackmore, 10 Watts (Pa.) 192;
 
 ABANDONMENT 
 
 6 
 
 ABANDONMENT 
 
 ;er v. Salmon, 2 Mete. (Mass.) 32; In-! 
 tants of School Dist No. 4 v. Benson, 
 
 Barker 
 habitants 
 
 31 Me. 381, 52 Am. Dec. 61S. Fee simple 
 title to real estate cannot be lost by aban- 
 donment; Barrett v. Coal Co., 70 Kan. 649, 
 70 Pac. 150; nor transferred by it; Sharkey 
 v. Candiani. 4S Or. 112. 85 Pac 219, 7 L. R. 
 A. (N. S.) 791. But under Spanish Law it 
 may be divested, although the question of 
 fact is for the jury; Fine v. Public Schools, 
 30 Mo. 1GG. 
 
 There may be an abandonment of an 
 ment; Pope v. Devereux, 5 Gray (Mass.) 409; 
 Shelby v. State. 10 Ilumphr. (Tenn.) 165; 
 Corning v. Gould. 1G Wend. (N. Y.) 531; 
 Crain v. Fox. 16 Barb. (N. Y.) 1S4; 3 B. & 
 2; of a mill site; French v. Mfg. Co., 
 2.°. Pick. (Mass.) 210; Farrar v. Cooper, 34 
 Me. 394; Taylor v. Hampton. 4 McCord (S. 
 C.) 96, IT Am. Dec. 710; 7 Bingh. 682; an 
 application for land; Com. v. Rahm, 2 S. & 
 R. (Pa.) 378; of an improvement; Fisher v. 
 Larick, 3 S. & R. (Pa.) 319; of a trust fund; 
 Breedlore v. Stump, 3 Yerg. (Tenn.) 258; 
 of an invention or discovery ; Wyeth v. 
 Stone. 1 Sto. 2S0, Fed. Cas. No. 18,107 ; Mel- 
 ius v. Silsbee, 4 Mas. Ill, Fed. Cas. No. 9,- 
 404; property sunk in a steamboat and un- 
 claimed: Creevy v. Breedlove, 12 La. An. 
 745; a mining claim; Davis v. Butler, 6 Cal. 
 510; Paine v. Griffiths, 86 Fed. 452, 30 C. C. 
 A. 182; a right under a land warrant; Em- 
 ery v. Spencer, 23 Pa. 271. An easement ac- 
 quired by grant is not lost by non-user; 
 Butterfield v. Reed, 100 Mass. 361, 35 N. E. 
 1128. 
 
 The burden of proof rests on the party 
 claiming abandonment of an easement ; Hen- 
 nessy v. Murdock, 137 N. Y. 317, 33 N. E. 
 330. 
 
 The question of abandonment is one of 
 fact for the jury ; 2 Washb. R. P. 82 ; Wig- 
 gins v. McCleary. 49 N. Y. 346; Banks v. 
 Banks, 77 N. C. 1S6; Sample v. Robb, 16 Pa. 
 320. 
 
 The effect of abandonment when acted 
 upon by another party is to divest all the 
 owner's rights ; Davis v. Butler, 6 Cal. 510 ; 
 McGoon v. Ankeny, 11 111. 558. 
 
 It was the ancient law that the owner 
 could, by abandoning a slave or animal 
 which was a cause of damage, relieve him- 
 self of liability, and there is a trace of the 
 a Hon of this principle to inanimate 
 things; the new owner became liable, under 
 the doctrine noxa caput sequitur. The cause 
 of offense was the slave, animal, or thing, 
 and only as a means of getting at that was 
 the liability of the owner considered ; Dig. 
 9, 1, 1, sec. 12 ; Inst. 4, 8, sec. 5 ; Holmes, 
 Com. L. 8. 
 
 Abandonment is to be distinguished from 
 Dedication, Surrender, Waiver. See Finder. 
 
 Consult 2 Washb. R. P. 56, 82, 85, 253. 
 See also Curtis. Pat. 5 381 ; Walk. Patents § 
 87 ; Ewell, Fixt. ; Thomp. Homest. ; Dicey, 
 
 Dom. 90. As to Abandonment of Patents, 
 see Patents. 
 
 ABANDONMENT FOR TORTS. In Civil 
 Law. The relinquishment of a slave or ani- 
 mal who had committed a trespass to the 
 person injured, in discharge of the owner's 
 liability for such trespass or injury. If this 
 were done, the owner could not be held to 
 any further responsibility. Just. Inst. 4, 8, 
 9. A similar right exists in Louisiana ; Fitz- 
 gerald v. Ferguson, 11 La. An. 396. 
 
 ABANDUM or ABANDONUM. Anything 
 sequestered, proscribed or abandoned. Cun- 
 ningham. 
 
 ABARNARE (Lat.). To discover and dis- 
 close to a magistrate any secret crime. 
 Leges Canuii, cap. 10. 
 
 ABATAMENTUM (Lat. abatare). An en- 
 try by interposition. Co. Litt- 277. An 
 abatement. Yelv. 151. 
 
 ABATARE. To abate. Yelv. 151. 
 
 ABATE (Fr. ibattre, L. Fr. abater). To 
 throw down, to beat down, destroy, quash. 
 3 Shars. Bla. Com. 168; Case v. Humphrey, 
 
 6 Conn. 140. See Abatement and Revival. 
 
 ABATEMENT AND REVIVAL. In Chan- 
 cery Practice. A suspension of all proceed- 
 ings in a suit, from the want of proper par- 
 ties capable of proceeding therein. 
 
 It differs from an abatement at law in this; that 
 in the latter the action is entirely dead and can- 
 not be revived ; but in the former the right to pro- 
 ceed is merely suspended, and may be revived by 
 a supplemental bill in the nature of a bill of re- 
 vivor ; 3 Bla. Com. 301 ; Boynton v. Boynton, 21 
 N. H. 246; Sto. Eq. PI. § 20 n. § 354; Ad. Eq. 403; 
 Mitf. Eq. PI., by Jeremy 57 ; Brooks v. Jones, 5 
 Lea (Tenn.) 244 ; Clarke v. Mathewson, 12 Pet. (U. 
 S.) 161, 9 L. Ed. 1041 ; Kronenberger v. Heinemann, 
 104 111. App. 156; Zoellner v. Zoellner, 46 Mich. 511, 
 9 N. W. S31; where interest is transmitted by act 
 of law, as to personal representative or heir a 
 simple bill of revivor may be used ; Story, Eq. PI. 
 § 364 ; Feemster v. Markham, 2 J. J. Marsh. (Ky.) 
 303, 19 Am. Dec. 131 ; Putnam v. Putnam, 4 Pick. 
 (Mass.) 139; but where by virtue of act of party, 
 as to devisee, an original bill in the nature of a 
 bill of revivor must be used; Russell v. Craig, 3 
 Bibb (Ky.) 377 ; Wood v. Dummer, 3 Mas. 308, Fed. 
 Cas. No. 17,944. V 
 
 Generally speaking, if any property or 
 right in litigation is transmitted to another, 
 he is entitled to continue the suit, or at least 
 have the benefit of it, if he be plaintiff; 
 Talmage v. Pell, 9 Paige, Ch. (N. Y.) 410; 
 or it may be continued against him, or at 
 least perfected, if he be defendant; Story, 
 Eq. PI. §§ 332, 442; Sedgwick v. Cleveland, 
 
 7 Paige. Ch. (N. Y.) 290; Sinclair v. Realty 
 Co., 99 Md. 223, 57 Atl. 664. See Pabties. 
 
 Death of a trustee does not abate a suit, 
 but it must be suspended till a new one is 
 appointed; Shaw v. R. Co., 5 Gray (Mass.) 
 162 ; and the further proceedings must be by 
 supplemental bill in the nature of a bill of 
 revivor, setting forth the proceedings and 
 requiring an answer by the new trustee; 
 Greenleaf v. Queen, 1 Pet (U. S.) 138, 7 L.
 
 ABATEMENT AND REVIVAL 
 
 ABATEMENT AND REVIVAL 
 
 Ed. 85. And where there was a failure to 
 rm duties of a fiduciary nature, carry- 
 ing compensation, the remedy therefor sur- 
 vived ; Warren v. Shoe Co., 1GC Mass. 07, 44 
 N. E. 112. 
 
 The death of the owner of the equity of 
 redemption abates a foreclosure suit; Wright 
 v. Phipps, 58 Fed. 552; but the executor of 
 complainant in a bill to redeem was held 
 not entitled to prosecute it; Smith v. Man- 
 ning, 9 Mass. 422; though now the right of 
 an administrator to redeem is given by stat- 
 ute to an administrator ; and in a late case 
 it was held that the right to redeem under 
 a deed absolute on its face, but in fact a 
 mortgage, is based on failure to perform a 
 duty of a fiduciary character and the right 
 of action Burvi rk v. Seagraves, 18G 
 
 Mass. 430, 71 N. E. 813. 
 
 There are some cases, however, in which 
 a court of equity will entertain application 
 notwithstanding the suit is suspended : thus, 
 proceedings may be had to preserve property 
 In dispute ; Washington Ins. Co. v. Slee, 2 
 Paige, Ch. (N. Y.) 3GS; to pay money out 
 of court where the right is clear ; 6 Ves. 250 ; 
 or upon consent of parties; 2 Ves. 399; to 
 punish a party for breach of an injunction; 
 Hawley v. Bennett, 4 Paige, Ch. (N. Y.) 1G3; 
 to enroll a decree; 2 Dick. 612; or to make 
 an order for the delivery of deeds and writ- 
 ings ; 1 Ves. 185. On a bill to set aside a 
 deed, the heirs at law or devisees of a de- 
 ceased complainant, and not the executor 
 (unless title is vested in him under the will), 
 should file the bill of revivor; Webb v. Jan- 
 ney, 9 A pp. D. C. 41. The death of the com- 
 plainant in a bill of discovery after answer 
 abates it and the suit cannot be revived ; its 
 purpose is accomplished ; Horsburg v. Baker, 
 1 Pet. (U. S.) 232, 7 L. Ed. 125. 
 
 Although abatement In chancery suspends 
 proceedings, it does not put an end to them ; 
 a party, therefore, imprisoned for contempt 
 is not discharged, but must move that the 
 complaint be revived in a specified time or 
 the bill be dismissed and himself discharged ; 
 Dan. Ch. Pr. (6th Am. ed.) *1543. Nor will 
 a receiver be discharged without special or- 
 der of court; McCosker v. Brady, 1 Barb. 
 Ch. (N. Y.) 329. A suit in equity for relief 
 against infringement of a patent does not 
 abate by the death of the plaintiff; Illinois 
 Cent. R. Co. v. Turrill, 110 U. S. 301, 4 Sup. 
 Ct. 5, 28 L. Ed. 154; nor does a suit in Ad- 
 miralty for prize money ; Penhallow v. 
 Doane, 3 Dall. (U. S.) 54, 1 L. Ed. 507. 
 The assignee of the rights of a complainant 
 may proceed by bill of revivor in the old 
 suit or begin a new one; Botts v. Coziue, 1 
 Hoffm. Ch. (N. Y.) 79. 
 
 In order to recover damages caused by in- 
 junction, it is unnecessary to revive a cause 
 in which a preliminary Injunction was is- 
 sued, bond given, and judgment on demurrer 
 for defendant who died; the remedy is by 
 
 action on the bond; Grissler v. Stu\ vesant, 
 1 Hun (N. Y.i 116, 3 Thomp. & C. 
 
 All declinatory and dilatory pleas in equi- 
 ty are said to be pleas in abatement, or in 
 the nature thereof; see Story, Eq. PL § 708: 
 Bea. Eq, 55; Coop. Eq. PI. 236. And such 
 pleas must be pleaded before a plea in bar, 
 if at all ; Story, Eq. PI. § 7tt Mus v. 
 
 Johns. Ch. (N. Y.) 214; Kendrick 
 v. Whitfield. 20 Ga. 379. See P 
 
 Of Freehold. The unlawful entry 
 and keeping possession of an estate by a 
 stranger, after the death of the an 
 and before the heir or devisee takes ; 
 sion. It is a species of ouster by interven- 
 tion between the ancestor or devisor and 
 the heir or devisee, thus defeating the right- 
 ful possession of the latter; 3 Bla. Com. 167 ; 
 Co. Litt. 277a.; Cruise, Dig. B. 1, 60. 
 
 By the ancient laws of Normandy, this 
 term was used to signify the act of one who, 
 having an apparent riiiht of possession to 
 an estate, took possession of it immediately 
 after the death of the actual possessor, be- 
 fore the heir entered. Howard. Ancimncs, 
 Lois des Franrais, tome 1, p. 539. 
 
 Of Legacies. The reduction of a legacy, 
 il or specific, on account of the insuffl- 
 of the estate of the testator to pay 
 his debts and legacies. . 
 
 When the estate of a testator is Insnffi 
 to pay both debts and legacies, it is thi 
 that the general 1< 
 
 portionally to an amount sufficient to pay 
 the debts; Towle v. Swasey, 106 Mas.-. 
 Appeal of Trustees of University of Pennsyl- 
 vania, 97 Pa. 187. If the general let 
 are exhausted before the debts are 
 then, and not till then, the specific leg 
 abate, and proportionally: 2 B . I 
 and note; Bacon, Abr. Leg. II; 2 P. \ 
 383; 1 Ves. Sen. 564; Brant v. Brant, 4 
 2S0; Armstrong's Appeal, 63 Pa. 312. See 
 Legacy. 
 
 In Revenue Law. The deduction fro 
 the refunding of, duties sometimes made at 
 the custom house, on account of damages re- 
 ceived by goods during importation or while 
 in store. See R. S. § 2S94. 
 
 Of Nuisances. The removal of a nuisance. 
 3 Bla. Com. 5; Poll. Torts 210. Sec 
 
 SANCE. 
 
 Of Actions at Law. The overthrow of an 
 action caused by the defendant pleading some 
 matter of fact tending to impeach the cor- 
 rectness of the writ or declaration, which 
 defeats the action for the present, bul 
 not debar the plaintiff from reoomni. 
 it in a better way. Stephen. PL 47: Pi 
 PL 15; Webb, Poll. Torts; 3 Bla. Com. 
 1 Chit. PL (6th Lond. ed.) 446; Gould, PL 
 ch. 5, § 65. 
 
 It has been applied rather Inappropriately as 
 a generic term to all picas of a dilatory nature; 
 whereas the word dilatory would seem to be the 
 more proper generic term, and the word abatement 
 applicable to a certain portion of dilatory pleas;
 
 ABATEMENT AND REVIVAL i 
 
 Com. Dig. Abt. B; 1 Chit. PI. 440 (6th Lond. ed.) ; 
 Gould. PI. ch. 5, § 65. In this general sense it has 
 been used to include pleas to the jurisdiction of the 
 court. This usage, being technically inaccurate, re- 
 sults in some confusion in the use of the word by 
 courts with respect to such pleas; Frohlich v. 
 Glass Co.. Hi Mich. 278, 107 N. W. 889; Bank of 
 Valley v. Gcttinger, 3 W. Va. 309; and by some 
 approved digests and text writers. The distinction 
 is however not lost sight of; Bishop v. Camp, 39 
 Fla. 517, 22 South. 735; Lewis v. Schwinn, 71 111. 
 App. 265. See Jurisdiction ; Plea. 
 
 Matter in abatement dehors the record is 
 properly presented by plea in abatement; 
 Schofield v. Palmer, 134 Fed. 753. 
 
 As to the Person of the Plaintiff and 
 Defendant. It may be pleaded, as to the 
 plaintiff, tbat there never was such a person 
 in rerum natura; 1 Chit. PI. (6th Lond. ed.) 
 44S; Guild v. Richardson, 6 Pick. (Mass.) 370; 
 Campbell v. Galbreath, 5 Watts (Pa.) 423; 
 Doe v. Penfield, 19 Johns. (N. Y.) 308; Boling- 
 er v. Fowler, 14 Ark. 27; Boston Type & 
 Stereotype Foundry v. Spooner, 5 Vt. 93 (ex- 
 cept in ejectment ; Doe v. Penfield, 19 Johns. 
 [N. Y.] SOS) ; and by one of two or more de- 
 nts as to one or more of his co-defend- 
 ants; Archb. C. P. 312. That one of the 
 iffs is a fictitious person, to defeat the 
 action as to all; Com. Dig. Abt. E, 16; 1 
 Chit. PI. 448 ; Archb. C. P. 304. This would 
 also be a good plea in bar; 1 B. & P. 44. 
 That the nominal plaintiff in the action of 
 ejectment is fictitious, is not pleadable in any 
 manner; 4 M. & S. 301; Jones v. Gardner, 
 10 Johns. (N. Y.) 269. A defendant cannot 
 plead matter which affects his co-defendant 
 alone; Bonzey v. Redman, 40 Me. 336 ; Har- 
 ker v. Brink, 24 N. J. Law, 333; Ingraham v. 
 Olcock, 14 N. H. 243; Shannon v. Comstock, 
 21 Wend. (N. Y.) 457, 34 Am. Dec. 262. 
 
 An action on contract by a copartnership, 
 the avails of which have been assigned dur- 
 ing its pendency to a third person, does not 
 abate by death of one partner, but may be 
 prosecuted to judgment without change on 
 the record; Pennsylvania Fire Ins. Co. v. 
 Carnahan, 19 Ohio Cir. Ct. R. 97. But when 
 the suit involves an adjustment of equities 
 between former partners and new ones, it 
 should be revived as against the representa- 
 ' tives of a new partner who died pendente 
 lite; Hausling v. Rheinfrank, 103 App. Div. 
 517, 93 N. Y. Supp. 121. 
 
 Certain legal disabilities are pleadable in 
 abatement, such as outlawry; Bac. Abr. Abt. 
 B; Co. Litt. 128 a; attainder of treason or 
 felony; 3 Bla. Com. 301; Com. Dig. Abt E. 
 3; also praemunire and excommunication; 3 
 Bla. Com. 301 ; Com. Dig. Abt. E. 5. The law 
 in reference to these disabilities can be of 
 no practical importance in the United States ; 
 Gould, PI. ch. 5, § 32. 
 
 Alienage. That the plaintiff is an alien 
 friend is pleadable only in some cases, where, 
 for instance, he sues for property which he 
 is incapacitated from holding or acquiring; 
 Co. Litt. 129 6; Stramburg v. Heckman, 44 
 N. C. 250. By the common law, although he 
 
 ABATEMENT AND REVIVAL 
 
 could not inherit, yet he might acquire by 
 purchase, and hold as against all but the 
 sovereign. Accordingly he has been allowed 
 in this country to sue upon a title by grant 
 or devise; Sheaffe v. O'Neil, 1 Mass. 256; 
 Fairfax v. Hunter, 7 Cranch (U. S.) 603, 3 
 L. Ed. 453; but see Siemssen v. Bofer, 6 Cal. 
 250; Wacker v. Wacker, 26 Mo. 426. The 
 early English authority upon this point was 
 otherwise; Bac. Abr. Abt B, 3, Aliens D; 
 Co. Litt. 129 o. He is in general able to 
 maintain all actions relating to personal chat- 
 tels or personal injuries; 3 Bla. Com. 384; 
 Cowp. 161; Bac. Abr. Aliens D: 2 Kent 34; 
 Co. Litt 129 6. But an alien enemy can 
 maintain no action except by license or per- 
 mission of the government; Bac. Abr. Abt. 
 B, 3, Aliens D; 46; 1 Ld. Raym. 282; 6 
 Term 53, 49; Russel v. Skipwith, 6 Binn 
 (Pa.) 241; Sewall v. Lee, 9 Mass. 363; 3 M. 
 & S. 533; Hamersley v. Lambert, 2 Johns. 
 Ch. (N. Y.) 508; Russel v. Skipwith, 1 S. & 
 R. (Pa.) 310. This will be implied from the 
 alien being suffered to remain, or to come to 
 the country, after the commencement of hos- 
 tilities without being ordered away by the 
 executive; Clarke v. Morey, 10 Johns. (N. Y.) 
 69. See 28 Eng. L. & Eq. 319. But the dis- 
 ability occurring after suit brought simply 
 suspends the right of action; Hutchinson v. 
 Brock, 11 Mass. 119. The better opinion 
 seems to be that an alien enemy cannot sue 
 as administrator; Gould, PI. ch. 5, § 44. 
 That both parties were aliens is no ground 
 for abatement of a suit on a contract made 
 in a foreign country; Rea v. Hayden, 3 
 Mass. 24. See also Barrell v. Benjamin, 15 
 Mass. 354; Roberts v. Knights, 89 Mass. (7 
 Allen) 449. 
 
 Corporations. A plea in abatement is the 
 proper manner of contesting the existence of 
 an alleged corporation plaintiff; Methodist 
 E. Church v. Wood, Wright (Ohio) 12 ; Pro- 
 prietors of Kennebeck Purchase v. Call, 1 
 Mass. 4S5; President, etc., Hanover Sav. 
 Fund Soc. v. Suter, 1 Md. 502; Rheem v. 
 Wheel Co., 33 Pa. 356; Pitman v. Perkins, 
 28 N. H. 93; Yeaton v. Lynn, 5 Pet. (U. S.) 
 231, 8 L. Ed. 105. To a suit brought in the 
 name of the "Judges of the County Court," 
 after such court has been abolished, the de- 
 fendant may plead in abatement that there 
 are no such judges; Judges of Fairfield 
 County v. Phillips, 2 Bay (S. C.) 519. 
 
 Where a general incorporation law pro- 
 vides for winding up the affairs of corpora- 
 tions by trustees, after dissolution, pending 
 suits do not thereupon abate; Scott v. Oil 
 Co., 142 Fed. 287; Gordon v. Pub. Co., 66 N. 
 Y. Supp. 828; Piatt v. Ashman, 32 Hun 
 (N. Y.) 230; until the expiration of the pe- 
 riod allowed for winding up ; Dundee Mortg. 
 & Trust Inv. Co. v. Hughes, 77 Fed. 855 ; or, 
 if abated, they may be revived against the 
 trustees; Shayne v. Pub. Co., 168 N. Y. 70, 
 61 N. E. 115, 55 L. R. A. 777, 85 Am. St. Rep. 
 654. The annulment of a charter for non-
 
 ABATEMENT AND REVIVAL 
 
 ABATEMENT AND REVIVAL 
 
 payment of taxes will not abate a suit prop- 
 erly brought and previously prosecuted to 
 judgment before a referee; Pyro-Gravure 
 ©O. v. Staber, 30 Misc. 658, 64 N. Y. Supp. 
 620. 
 
 I'ul/Jic Officers. Where a commission cre- 
 ated by state law is abolished during the 
 pendency of a suit, against it, the officers who 
 are by law authorized to wind up its bust- 
 are proper parties against whom there 
 may be proceedings for revival; Hemingway 
 v. Stansell. 106 I . S. 399, 1 Sup. Ct 473, 27 
 L. Ed. 245. A suit against a public oflicer in 
 his official capacity does not as a general 
 rule abate by reason of a change in the in- 
 cumbent of the office; Murphy v. Utter, 186 
 V. S. 95, 22 Sup. Ct. 776, 40 L. Ed. 1070; 
 Bheehan v. Osborn, 138 Cal. 512, 71 Pac. 622; 
 Nance v. People, 25 Colo. 252, 54 Pac. 631; 
 People v. Coleman, 99 App. Div. 88, 91 N. Y. 
 Supp. 432 : nor does a suit by a sheriff for 
 conversion of goods levied by him; Dickin- 
 son v. Oliver, 112 App. Div. 806, 99 N. Y. 
 Supp. 432; but a suit against the Secretary 
 of the Interior to compel the issue of patent 
 for public lands, does abate on his resigna- 
 tion ; Warner Valley Stock Co. v. Smith. 165 
 U. S. 28, 17 Sup. Ct. 225, 41 L. Ed. 621; 
 and so does a suit against a town treasurer 
 if his successor is not made a party in due 
 time; Sauuders v. Pendleton, 19 R. I. 659, 36 
 Atl. 425. 
 
 A suit against a receiver does not abate by 
 reason of his discharge ; Baer v. McCullough, 
 176 N. Y. 97, OS N. E. 129; Dougherty v. 
 King, 165 N. Y. 657, 59 N. E. 1121; or his 
 death; Pickett v. Fidelity & Casualty Co., 
 GO S. C. 477, 38 S. E. 160 ; nor of an order 
 to return the property to the corporation 
 owner ; Cowen v. Merriman, 17 App. D. C. 
 186. 
 
 When, pending suit by a guardian, the heir 
 comes of age, there is no abatement and no 
 need of revival; the guardian may be dis- 
 charged; Shattuck v. Wolf, 72 Kan. 366, 83 
 Pac. 1093. 
 
 Coverture of the plaintiff is pleadable in 
 abatement; Com. Dig. Abt. E, 6; Bac. Abr. 
 Abt. G; Co. Litt. 132; 3 Term 631; 1 Chit. 
 '.:); Hayden v. Attteborough, 7 Gray 
 (Mass.) 33S; though occurring after suit 
 brought; 3 Bla. Com. 316; Bac. Abr. Abt. 
 9: Wilson v. Hamilton, 4 S. & R. (Pa.) 23S; 
 Newell v. Marcy, 17 Mass. 342; 6 Term 265; 
 Gerard v. Pierce, 5 N. C. 161; Guphill v. Is- 
 bell, 1 Bailey (S. C.) 309; and see Hastings 
 v. McKinley, 1 E. D. Sm. (N. Y.) 273; but 
 not after plea in bar, unless the marriage 
 arose after the plea in bar; Northum v. 
 Kellogg, 15 Conn. 569; but in that case the 
 defendant must not suffer a continuance to 
 intervene between the happening of this new 
 matter, or its coming to his knowledge, and 
 his pleading it; McCoul v. Lekamp, 2 Wheat. 
 (U. S.) Ill, 4 L. Ed. 197; Swan v. Wilkin- 
 son, 14 Mass. 295; Templet on v. Clary, 1 
 Blackf. (Ind.) 288; Perry v. Boileau, 10 S. & 
 
 R. (Pa.) 20S; Lyman v. Albee, 7 Vt. 
 Gatewood v. Tunk, 3 Bibb <Ky.) 2 
 it cannot be otherwise If she 
 
 or a cause of action that would sur- 
 vive to her on the death of her hu 
 12 M. & W. 97; Perry v. Boileau, 10 S. & R. 
 (Pa.) 208. An action for damagt 
 sault by a female plaintiff doei .aeon 
 
 her marriage; Stevens v. Friedma 
 
 ,51 S. E. 132. v 
 having any interest, the defence is or 
 substance, and may be pleaded In bar. by d< 
 murrer, or on the general issue; 4 Term 
 361; l II. Bla. 10S; Cro. Jac. 644, wh< 
 she sues jointly or alone. So also \ 
 coverture avoids the contract or Instrui 
 it is matter in bar; Steer v. St. er, 1 
 R. (Pa.) 379. 
 
 Where a feme covert is sued without her 
 husband for a cause of action that would 
 survive against her, as upon a contract 
 before, or a tort committed after, mar. 
 the coverture is pleadable in abatement; B 
 Term 626; and not otherwise; 9 M. & W. 
 299; Com. Dig. Abt. F, 2. If the marriage 
 takes place pending the action, it. cannot be 
 pleaded; 2 Ld. Raym. 1525; Crockett v. 
 5 Greenl. (Me.) 445; City Council v. 
 Van Roven, 2 McCord (S. C.) 409. It must 
 be pleaded by the feme in per Saund. 
 
 209o. Any thing which suspends the cov- 
 erture suspends also the right to plead it : 
 Com. Dig. Abt. F, 2, § 3 ; Co. Litt 132 6; 1 
 B. & P. 358; Gregory v. Paul. 17, Mat 
 Marriage of a female defendant in error aft- 
 er writ has been duly served, will not abate 
 suit, but it will proceed as if she were still 
 unmarried; United States Mut Ace. A 
 Weller, 30 Fla. 210, 11 South. 7 
 
 Death of the plaintiff before purchi 
 the writ may be pleaded in abatement: 1 
 Archb. C. P. 304; Com. Dig. Abt. E, 17: 
 Camden v. Robertson, 2 Scam. (Ill 
 Hurst v. Fisher, 1 W. & S. (Pa.) 438 : Humph- 
 reys v. Irvine, 6 Smedes & M. (Miss.) 205; 
 Alexander v. Davidson, 2 McM"ul. (S. O.) 49. 
 So may the death of a sole plaintiff who 
 dies pending his suit at common law; Bac. 
 Abr. Abt. F; Archer v. Colly, 4 Hen. & M. 
 (Va.) 410; Livingston v. Abel. 2 Root (ConiU 
 57; Smith v. Manning, 9 Mass. 422; Drago 
 v. Stead, 2 Rand. (Va.) 454; Ryder v. Rob- 
 inson, 2 Greenl. (Me.) 127. Otherwise now 
 by statute, in most cases, in most if not all 
 the states, and in England since 1852. Un- 
 der some statutes the right to revive depends 
 upon the exercise of a sound discretion by 
 the court; Hayden v. Huff. 62 N 
 N. W. 1S4; Beach v. Reynolds. 64 Barb. (N. 
 Y.) 506. 
 
 The right to revive an action is solely a 
 statutory right; Ashby v. Harrison's Com 
 mittee, 1 Pat. & II. (Va.) 1. It is a qu< 
 of right, not of procedure, and is governed 
 by the lex fori; Martin's Adm'r v. H. Co., 
 151 U. S. 673, 14 Sup. Ct. 533. 3S L. Ed. 311 ; 
 Baltimore & O. R. Co. v. Joy, 173 U. S. 226,
 
 ABATEMENT AND REVIVAL 
 
 10 
 
 ABATEMENT AND REVIVAL 
 
 19 Sup. Ct 3S7, 43 L. Ed. 077; Martin v. R. 
 Co., 142 Fed. 650, 73 C. C. A. 646,. 6 Ann. 
 Cas. 5S2; Sanders' Adrn'x v. R. Co., Ill Fed. 
 708, 49 C. C. A. I ardson v. R. Co., 98 
 
 Mass. 85; Mexican Cent. Ry. Co. v. Good- 
 man, 20 Tex. Civ. App. 109. -is S. W. 778; 
 Austin's Adin'r v. Ry. Co.. 122 Ky. 304, 91 
 S. W. 742, 5 L. R. A. (N. S.) 756 ; Stratton's 
 Independence v. Dines, 126 Fed. 968; Whit- 
 ten v. Bennett, 77 Fed. 271. 
 
 It was held (hat the death of the sole com- 
 plainant did not abate the suit if the cause 
 of action survives; Keep v. Crawford, 92 
 111. App. 587 ; but, even where there is a 
 statutory provision for revival all proceed- 
 ings are suspended until it is complied with; 
 King v. Mitchell, 83 111. App. 632, judgment 
 affirmed 187 111. 452, 58 N. E. 310; Street v. 
 Smith, 75 Neb. 434, 106 N. W. 472. Death 
 of either party abates a divorce case; Bell 
 v. Bell, 181 U. S. 175, 21 Sup. Ct. 551, 45 L. 
 Ed. 804; McCurley v. McCurley, 60 Md. 189, 
 45 Am. Rep. 717; In re Crandall, 196 N. Y. 
 127, 89 N. E. 578, 134 Am. St. Rep. 830, 17 
 Ann. Cas. S74; L. R. 11 P. Div. 103. The 
 personal representatives are usually authoriz- 
 ed to act in such cases. The personal rep- 
 resentatives of a deceased plaintiff are the 
 proper parties to revive in replevin ; Rex- 
 road v. Johnson, 4 Kan. App. 333, 45 Pac. 
 100S ; a suit to redeem property from a tax 
 sale; Clark v. Lancy, 178 Mass. 460, 59 N. 
 E. 1034; foreclosure of mortgage; Van 
 Brocklin v. Van Brocklin, 17 App. Div. 226, 
 45 N. Y. Supp. 541 (but see Stancill v. Spain, 
 133 N. C. 76, 45 S. E. 466, where heirs at 
 law or devisees were held necessary par- 
 ties) ; on a delivery bond by a deputy sheriff 
 (he having no official successor in office); 
 Tucker v. Potter, 22 R. I. 4, 45 Atl. 741; 
 ejectment, when the land was devised to the 
 executor in trust to sell and dispose of the 
 proceeds; Bell's Adm'r v. Humphrey, 8 W. 
 Va. 1; an action on a sick benefit policy; 
 Columbian Relief Fund Ass'n v. Walker, 26 
 Ind. App. 25, 59 N. E. 36 ; an action for per- 
 sonal injuries, commenced by the deceased, 
 though assigned by him ; McCafferty v. R. 
 Co., 193 Pa. 339, 44 Atl. 435, 74 Am. St. Rep. 
 690 ; suit under contract for service stip- 
 ulating payment for passage back to France ; 
 Bethmontv. Davis, 11 Mart. O. S. (La.) 195; 
 a suit by a married man against a railroad 
 company for damages to homestead; South- 
 ern Ry. Co. v. Cowan, 129 Ala. 577, 29 South. 
 985 ; trespass by two, where one dies ; Rowe 
 v. Lumber Co., 133 N. C. 433, 45 S. E. 830; 
 an action for damages to land, if permitted 
 to survive at all (but see infra) ; Mast v. 
 Sapp, 140 N. C. 533, 53 S. E. 350, 5 L. R. A. 
 (N. S.) 379, 111 Am. St. Rep. 864, 6 Ann. 
 Cas. 384 ; an action for rescission of con- 
 tract to cut and remove timber ; Isham v. 
 Stave Co., 25 Oh. Cir. Ct. 167. 
 
 The heir at law or devisee is the proper 
 party to revive in an action for injury to 
 real estate; Texas & N. O. R. Co. v. Smith, 
 35 Tex. Civ. App. 351, 80 S. W. 247. 
 
 If the cause of action is such that the 
 right dies with the person, the suit still 
 abates. By statute 8 & 9 Win. IV. ch. 2, 
 sect. 7, which is understood to enact the 
 common-law rule, where the form of action 
 is such that the death of one of several 
 plaintiffs will not change the plea, the ac- 
 tion does not abate by the death of any of 
 the plaintiffs pending the suit. 
 
 The death of both parties does not abate 
 an action under a statute providing that no 
 action shall abate if the cause of action sur- 
 vives; McNulta v. Huntington, 62 App. Div. 
 257, 70 N. Y. Supp. 897; or under one pro- 
 viding that actions for injury to property 
 shall survive; Northern Trust Co. v. Palm- 
 er, 171 111. 383, 49 N. E. 553, in cases meet- 
 ing those conditions respectively. 
 
 A Code provision forbidding dismissal of 
 a cause by plaintiff without consent of de- 
 fendant, does not affect the right of revival 
 by personal representatives of plaintiff after 
 his death; Kinzie v. Riely's Ex'r, 100 Va. 
 709, 42 S. E. 872. 
 
 In some cases where an action is saved by 
 statute from abatement on death of plain- 
 tiff, the court may permit the continuance of 
 the action by his successor in interest ; Over- 
 all v. Traction Co., 112 Mo. App. 224, 90 S. 
 W. 402. 
 
 The death of the lessor in ejectment never 
 abates the suit; Frier v. Jackson, 8 Johns. 
 (N. Y.) 495; Ex parte Swan, 23 Ala. 193; 
 Thomas v. Kelly, 35 N. C. 43; Hatfield v. 
 Bushnell, 1 Blatchf. 393, Fed. Cas. No. 6,211 ; 
 his heirs are properly substituted on defend- 
 ant's petition; Ballantine v. Negley, 158 Pa. 
 475, 27 Atl. 1051. 
 
 In Wasserman v. United States, 161 Fed. 
 722, 88 C. C. A. 582, it was held that the 
 fine of one found guilty of contempt, who 
 had sued out a writ of error, but died before 
 the submission of the case to the higher 
 court, should be considered as a charge 
 against the estate, and that the action did 
 not abate by death. 
 
 On death of administrator bringing suit it 
 may be revived by his administrator or by 
 administrator de bonis non; Wood v. Tom- 
 lin, 92 Tenn. 514, 22 S. W. 206. In Missouri 
 an action for personal injuries cannot be re- 
 vived by the administrator after plaintiff's 
 death ; Davis v. Morgan, 97 Mo. 79, 10 S. W. 
 881 ; nor is such action impliedly saved in 
 West Virginia by the statute giving a right 
 of action after death to the personal repre- 
 sentatives; Martin v. R. Co., 151 U. S. 673, 
 14 Sup. Ct. 533, 38 L. Ed. 311. In New York 
 a statutory cause of action for death by neg- 
 ligence abates by the death of the wrong- 
 doer ; Hegerich v. Keddie, 99 N. Y. 258, 1 N. 
 E. 7S7, 52 Am. Rep. 25. In Maryland an ac- 
 tion by husband to recover damages for the 
 killing of his wife, abates on his death ; Har- 
 vey v. R. Co., 70 Md. 319, 17 Atl. 88 ; but in 
 Texas a suit by a husband for personal inju- 
 ry to his wife may be continued by her after
 
 ABATEMENT AND REVIVAL 
 
 11 
 
 ABATEMENT AND REVIVAL 
 
 Lis death; Mexican Cent. Ry. Co. v. Good- 
 20 Tex. Civ. App. 109, 48 S. W. 778; 
 and the remedy of a son for his own 
 
 I by mutilation of bis 1 body, 
 
 is by oew action, and not by substitution of 
 himself as plaintiff after the death of his 
 mother in a .suit begun by her for her own 
 suffering; Jones v. Miller, 35 Wash. 499, 77 
 Pac. 811. On the death of a father suing 
 for an injury causing the death of his daugh- 
 ter admini tral rix may revive ; B I 
 v. II. Co., 164 X. V. 1 15./58 N. E. 50, 51 L. R. 
 A. 235, 79 Am. St. Rep. 635. 
 
 The death of a party pending an audit 
 causes n mistrial ami new parties must be 
 lit in ami the case tried de novo, Car- 
 roll v. Barber, 119 Ga. 856, 47 S. E. 181. 
 
 The death of plaintiff after judgment and 
 pending motion for a new trial, does not 
 abate the suit; Fowden v. S. S. Co., 149 
 Cal. 151, SG Pae. 178; and a decree In equity 
 in favor of husband and wife, after the 
 death of the husband survives to the wife, 
 though she was not a necessary party; Ed- 
 gerton v. Muse, Dud. Eq. (S. C.) 179. Where 
 a judgment on a cause of action which does 
 not survive was recovered against a decedent 
 and another, it abates as to the former; Ham- 
 mond v. Hoffman, 2 Redf. (N. Y.') '.)L'. 
 
 On the death of one of three partners 
 plaintiff the remaining two may prosecute 
 lo final judgment in their own names; Davis 
 v. Davis, 93 Ala. 173, 9 South. 736. 
 
 An action by two tenants in common, after 
 the de:ith of one who bequeathed to the sur- 
 vivor his interest in a pending action and 
 made him executor, may be continued by 
 him for damages sustained by both ; McPhil- 
 lips v. Fitzgerald, 177 N. Y. 543, 69 N. E. 
 1128. Under U. S. Rev. Stat. § 956, provid- 
 ing that an action may be continued by a 
 surviving plaintiff against a surviving de- 
 fendant without abatement, where the cause 
 of action survives to the surviving plaintiff 
 or against the surviving defendant, an ad- 
 ministrator can neither continue nor defend 
 the action; Fox v. Mackay, 1 Alaska 329. 
 
 The death of sole defendant pending an 
 action abates it; Bac. Abr. Abt. F; anony- 
 mous, 2 N. C. 500; McKee v. Straub, 2 Binn. 
 (Pa.) 1; Carter v. Carr, 1 Gilm. (Va.) 115; 
 Farmer v. Frey, 4 McCord (S. C.) 160; Mack- 
 er v. Thomas, 7 Wheat. (U. S.) 530, 5 E. Ed. 
 515; Nutz v. Reutter, 1 Watts (Pa.) 229; 
 Mellen v. Baldwin, 4 Mass. 4S0; Merritt v. 
 Lumbert, 8 <ireenl. (Me.) 129; Potts v. [son, 
 11 Ga. 151, 56 Am. Dec. 419; but not after 
 a finding for the plaintiff; Wilkins v. Wain- 
 wright, 173 Mass. 212, n;; N. e. ::i)7: or be- 
 cause of the death of a party after verdict; 
 Eaidley v. Jasper, 49 W. Va. 526 89 S. E. 
 169; but the death of defendant after deci- 
 sion, but before judgment, abates the suit; 
 Fox v. Hopkinson, 19 R. I. 704, 36 Atl. 824. 
 After abatement by reason of the death of 
 defendant, the duty of Instituting proceedings 
 for revival rests upon the plaintiff and not 
 
 on the other defendants; Wilkinson v. Vor- 
 dermark, 32 Ind. App. 633, 70 N 
 
 on \. Bai 88 X. W. 
 
 :i the defendant dl • serv- 
 
 ice, no jurisdiction has attached and the ex- 
 ecutor cannot be made a pa oaway 
 I ed. 574 : Crowdus' Adm'r v. 
 Harrison, 9 Ky. E. Rep. 
 
 An action against a surgeon for mal 
 with the death of the d 
 whatever the form of the action; Boor v. 
 Lowrey, 103 Ind. 468, 3 N. E. 151, •",:; Am. 
 
 But where one of several co v 
 dies pending the action, his death is b 
 era] no cause of abatement, even by i 
 law; Cro. Car. 426; Bac Abr. Abt Pj Gould, 
 
 PI. ch. 5, § 93; Tucker v. Etley, 168 
 415, 47 N. E. 198. If the cause of action is 
 such as would survive against the survivor 
 or survivors, the plaintiff may proceed by 
 suggesting the death upon the record': Tor- 
 ry v. Robertson, 24 Miss. 192; Gould. PI. ch. 
 5, § 93. Where one of several pit 
 defendants in error dies, the suit d^es not 
 abate or require a revival in tin - 
 Court; Prior v. Kiso, 96 Mo. 316, 9 S. W. 
 898. The inconvenience of abatement by 
 death of parties was remedied by 17 i';ir. II, 
 ch. 8, and 8 & 9 Win. III. ch. 2, ss. 6, 7. In 
 the U. S., on the death of a snle defendant, 
 his personal representatives may be si 
 tuted if the action could have been originally 
 prosecuted against them; Gould, I 
 95. The common law rule is that the 
 of action against a tort-feasor dies with him; 
 
 v. Barmm, 217 111. 381, 7.'. N 
 Hedekin v. Gillespie, 33 Ind. App 
 E. 1 k; ; Stratum's [ndepi nd< nee v. 
 135 Fed. 449, 6S C. C. A. 161 ; and .- 
 should be pleaded in abatement; O'Coi.r 
 Corbitt, 3 Cal. 370. Many exceptions to this 
 rule exists by statute. When a party has 
 been so long dead as to require consent to 
 revive, which is refused, it abates; New 
 Hampshire Banking Co. v. Ball, 57 Kan. ML'. 
 48 Pac. 137. 
 
 As to the effect of death of parties on suit, 
 see 5 L. Ed. 256, note. And as to the sur- 
 vival of personal actions after the death of 
 the plaintiff, see Actio Personalis Moritub 
 Cum Pebsona. As to the effect of the death 
 of a party in suits for divorce, see that title. 
 Infancy is pleadable in abatement to the 
 person of the plaintiff, unless the infant ap- 
 pear by guardian or prochein ami ; Co. Litt 
 135 b; 2 Saund. 117; 3 Ela. Com. 301; 
 Schemerhorn v. Jenkins. 7 Johns. (N. Y.) .".T". : 
 Hinman v. Taylor, 2 Conn. 357; Blood v. 
 Harrington, 8 Pick. (Mass.) 552, He • 
 appear by attorney, since lie cannot mi 
 power of attorney: :: Saund. 212; Young v. 
 Young, 3 N. II. 345; Blood v. Harrington, 8 
 Pick. (Mass.) 552: Smith v. Van Hon 
 N. J. L. 381; S' hemerhorn v. Jenkins. 7 
 Johns. (N. Y.i 37::. The death of the next 
 friend bringing suit for minors does not
 
 ABATEMENT AND REVIVAL 
 
 VI 
 
 ABATEMENT AND REVIVAL 
 
 abate suit, nor does the attainment of ma- 
 jority by minors ; Tinker v. Wilson, G8 Miss. 
 693, 9 South. S9S. Where an infant sues as 
 co-executor with an adult, both may appear 
 by attorney, for, the suit being brought in 
 autre droit, the personal rights of the in- 
 fant are not affected, and therefore the 
 adult is permitted to appoint an attorney for 
 both; 3 Saund. 212; Cro. Eliz. 512. At com- 
 mon law, judgment obtained for or against 
 an infant plaintiff who appears by attorney, 
 no plea being interposed, may be reversed by 
 writ of error; 1 Rolle, Abr. 2S7; Cro. Jac. 
 441. By statute, however, such judgment is 
 valid, if for the infant; 3 Saund. 212 (n. 
 5). A suit by a guardian to compel an ac- 
 counting by a guardian ad litem does not 
 abate by reason of the death of the guardian 
 or the majority of the ward ; Smith v. Min- 
 gey, 72 App. Div. 103, 76 N. Y. Supp. 194, 
 order affirmed 172 N. Y. 650, 65 N. E. 1122. 
 
 Imprisonment. A sentence to imprison- 
 ment in New York, either of plaintiff or de- 
 fendant, abates the action by statute; Gra- 
 ham v. Adams, 2 Johns. Cas. (N. Y.) 408; 
 O'Brien v. Hagan, 1 Duer (N. Y.) 664; but 
 see Davis v. Duffie, 8 Bosw. (N. Y.) 617. 
 
 Lunacy. A lunatic may appear by attor- 
 ney, and the court will on motion appoint 
 an attorney for him; Faulkner v. McClure, 
 18 Johns. (N. Y.) 134. But a suit brought by 
 a lunatic under guardianship shall abate; 
 Collard v. Crane, Brayt. (Vt.) 18; but it is 
 held that a suit brought by the committee of 
 an insane person may be revived by the ad- 
 ministrator of the latter after his death; 
 Straight v. Ice, 56 W. Va. 60, 48 S. E. 837. 
 Quwre whether suit against committee of an 
 insane person may be revived against the 
 administrators of such person; Paradise's 
 Adm'rs v. Cole, 6 Munf. (Va.) 218. 
 
 Mandamus, when brought against a public 
 officer, is a personal action which abates at 
 his death or retirement from office, and his 
 successor cannot be substituted without stat- 
 utory authority; U. S. v. Butterworth, 169 
 U. S. 600, 18 Sup. Ct 441, 42 L. Ed. 873, cit- 
 ing the prior cases. 
 
 Misjoinder. The joinder of improper 
 plaintiffs may be pleaded in abatement; 
 Archb. C. PL 304 ; 1 Chit. PI. 8. Advantage 
 may also be taken, if the misjoinder appear 
 on record, by demurrer in arrest of judg- 
 ment, or by writ of error. If it does not ap- 
 pear in the pleadings, it would be ground of 
 non-suit on the trial; 1 Chit. PI. 66. Mis- 
 joinder of defendants in a personal action is 
 not subject of a plea in abatement; Wooten 
 & Co. v. Nail, 18 'Ga. 609; Archb. C. PI. 68, 
 310; Durgin v. Smith, 115 Mich. 239, 73 N. 
 W. 361 ; otherwise where there is found to 
 be no joint liability ; Wright v. Reinelt, 118 
 Mich. 638, 77 N. W. 246. When an action is 
 thus brought against two upon a contract 
 made by one, it is a good ground of defence 
 under the general issue ; Clayt. 114 ; Ander- 
 son v. Henshaw, 2 Day (Conn.) 272; Dib- 
 
 lee v. Best, 11 Johns. (N. Y.) 104 ; 1 Esp. 363 ; 
 for in such case the proof disproves the dec- 
 laration- If several are sued for a tort com- 
 mitted by one, such misjoinder is no ground 
 of objection in any manner, as of co-dei'eud- 
 ants in actions ex delicto, some may be con- 
 victed and others acquitted ; 1 Saund. 291. 
 In a real action against several persons, they 
 may plead several tenancy; that is, that they 
 hold in severalty, not jointly; Com. Dig. Abt. 
 P, 12; or one of them may take the entire 
 tenancy on himself, and pray judgment of the 
 writ ; Com. Dig. Abt. F, 13. Misjoinder of ac- 
 tion is waived unless taken before defence; 
 Organ v. R. Co., 51 Ark. 235, 11 S. W. 96. 
 Where a husband is improperly joined in an 
 action concerning his wife's separate inter- 
 est in land, the action should be abated; 
 West v. Adams (Va.) 27 S. E. 496. 
 
 Misnomer of plaintiff, where the misnomer 
 appears in the declaration, must be pleaded 
 in abatement; Jewett v. Burroughs, 15 Mass. 
 469 ; Porter v. Cresson, 10 S. & R. (Pa.) 257 ; 
 State v. Dines, 10 Humphr. (Tenn.) 512; 
 Barnes v. Perina, 9 Barb. (N. Y.) 202; Pro- 
 prietors of Sunapee v. Eastman, 32 N. H. 
 470; American Bank v. Doolittle, 14 Pick. 
 (Mass.) 123; Trull v. Howland, 10 Cush. 
 (Mass.) 109, 57 Am. Dec. 82; and he must 
 disclose his true name and thereby enable 
 the plaintiff to amend his writ; Com. v. 
 Lewis, 1 Mete. (Mass.) 151 ; McCrory v. An- 
 derson, 103 Ind. 12, 2 N. E. 211 ; and where 
 parties were improperly joined in suit on 
 covenants of indemnity and the only relief 
 was in equity, under the statute, the action 
 was abated as to them only ; Mcllvane v. 
 Lumber Co., 105 Va. 613, 54 S. E. 473. It is 
 a good plea in abatement that the party sues 
 by his surname only; Chappell v. Proctor, 
 Harp. (S. C.) 49 ; Labat v. Ellis, 1 N. C. 172 ; 
 Seely v. Boon, 1 N. J. L. 138. A mistake in 
 the Christian name is ground for abatement ; 
 Moss v. Flint, 13 111. 570; or where the in- 
 itials merely are used; Smith v. Barrett, 
 Morris (la.) 492 ; City of Menominee v. Lum- 
 ber Co., 119 Mich. 196, 77 N. W. 704. In 
 England the effect of pleas in abatement of 
 misnomer has been diminished by statute 3 
 & 4 Wm. IV. ch. 42, s. 11, which allows an 
 amendment at the cost of the plaintiff. The 
 rule embodied in the English statute prevails 
 in this country. 
 
 If the defendant is sued or declared against 
 by a wrong name, he may plead the mistake 
 in abatement ; 3 Bla. Com. 302 ; 3 East 167 ; 
 Bac. Abr. D ; Louisville & N. R. Co. v. Hall, 
 12 Bush (Ky.) 131; and in abatement only, 
 Thompson v. Elliott, 5 Mo. 118 ; Salisbury v. 
 Gillett, 2 Scam. (111.) 290; Melvin v. Clark, 
 45 Ala. 285 ; Carpenter v. State, 8 Mo. 291 ; 
 Com. v. Lewis, 1 Mete. (Mass.) 151 ; but one 
 defendant cannot plead the misnomer of an- 
 other, Com. Dig. Abt F, 18; Archb. C. P. 
 312; 1 Nev. & P. 26. But if having been 
 sued by the wrong name, he is served with 
 process, and fails to plead the misnomer in
 
 ABATEMENT AND REVIVAL 
 
 13 
 
 ABATEMENT AND REVIVAL 
 
 abatement, he will be bound by the judg- 
 ment; Bloomfiela B. Co. v. Burress, v - ind. 
 \iul a corporation setting up a misnomer 
 
 in its answer, but failing to state its true 
 name, will be bound by a judgment 8 
 it in the name by which it was sued; Louis- 
 ville Jc X. R. Co. v. Hall, 12 Bush <K\.i 13L 
 
 The omission of the initial letter between 
 Christian and surname of the party is 
 not a misnomer or variance; Franklin v. 
 Talmadge, 5 Johns. (N. Y.) 84. Since oyer 
 of the writ has been prohibited, the misnom- 
 er mil.-; appear in the declaration: Williard 
 v. Missanl, 1 Cow. (X. Y.) 37. Misnomer of 
 ilaiit was never pleadable in any other 
 manner than in abatement; Thompson v. 
 Elliott, 5 Mo. 118; Salisbury v. Gillett, 2 
 Scam. (111.) 290; Melviu v. Clark, 45 Ala. 2S5; 
 Carpenter v. State, 8 Mo. 291; Com. v. Lewis, 
 1 Mete. (Mass.) 151. In England this plea 
 lias been abolished; 3 & 4 Win. IV. ch. 42, 
 s. 11. And in the states, generally, the plain- 
 tiff is allowed to amend a misnomer. The 
 misnomer of one of two defendants, as to his 
 Christian name, if material at all when sued 
 as a firm, must be taken advantage of by plea 
 in abatement; Whittier v. Gould, 8 Watts 
 (Pa.) 485. 
 
 In criminal practice the usual pleas in 
 abatement are for misnomer. If the indict- 
 ment assigns to the defendant no Christian 
 name, or a wrong one, no surname, or a 
 wrong one, he can only object to this matter 
 by a plea in abatement ; 2 Gabb. Cr. L. 327. 
 As to the evidence necessary in such case, 
 see 1 M. & S. 453 ; 3 Greenl. Ev. § 221. 
 
 Xo7t-joinder. If one of several joint ten- 
 ants sue, Co. Litt, ISO b ; Bacon, Abr. Joint 
 Tenants, K; 1 B. & P. 73 ; one of several 
 joint contractors, in an action ex contractu, 
 Archb. C. P. 48, 53; one of several partners, 
 Puschel v. Hoover, 16 111. 340; Bellas v. 
 Fagely, 19 Pa. 273 ; one of several joint exec- 
 utors who have proved the will, or even if 
 they have not proved the will; Newton v. 
 Cocke, 10 Ark. 169 ; 1 Chit. PI. 12, 13 ; one of 
 several joint administrators ; id. 13 ; the de- 
 fendant may plead the non-joinder in abate- 
 ment; Com. Dig. Abt. E; 1 Chit. PI. 12. The 
 omission of one or more of the owners of 
 the property in an action ex delicto is plead- 
 ed in abatement; Chandler v. Spear, 22 Vt. 
 3S8; Weare v. Burge, 32 N. C. 169; Morley v. 
 French, 2 Cush. (Mass.) 130; Reading R. R. 
 v. Boyer, 13 Pa. 497 ; Edwards v. Hill, 11 111. 
 22. Dormant partners may be omitted in suits 
 on contracts to which they are not privy; 
 Clark v. Miller, 4 Wend. (N. Y.) 62S ; Wilson v. 
 Wallace, 8 S. & R. (Pa.) 55; Lord v. Baldwin, 
 6 Pick. (Mass.) 352; Clarkson v. Carter. 3 
 Cow. (N. Y.) 85. A non-joinder may also be 
 taken advantage of in actions ex contractu, 
 at the trial, under the general issue, by de- 
 murrer, or in arrest of Judgment, if it ap- 
 pears on the face of the pleadings; Armine 
 ▼. Spencer, 4 Wend. (N. Y.) 409. 
 
 A 'on- joinder of a person as defendant who 
 
 is jointly interested in the contract upon 
 which the action is brought can only be 
 advantage of by plea in abatement; 5 
 651; 3 Campb. 50; in v. Smith, IS 
 
 Johns. (X. Y.) 459, 9 Am. Dec. 227; Iline v. 
 Houston, 2 G. Greene (la.) 161; Johns 
 
 ■;m. 24 Conn. 531 ; Potter v. Mc< 
 Pa, 45S; Gove v. Lawrence, 24 X. 11. 
 Merrick v. Bank, 8 (Jill (Md.) 
 v. Hammond, 19 Ala. 340; Mershon v. 1! 
 sack, 22 N. J. I.. 372; Com. v. Davis, 9 B. 
 
 ( Ky.) 129; Beasley v. ah- 
 600; Prunty v. .Mitchell, 76 Va. 169; a 
 the mistake appear from the plaintiff 
 pleadings, when it may be taken advai 
 of by demurrer or in arrest of ji: 
 Saund. 271; Robertson v. Smith, is Johns. 
 (X. Y. i 459, 9 Am. Dec. 227. Non-joinder of 
 a co-tenant may be pleaded when the suit 
 respects the land held in common; Southard 
 v. Bill, 44 Me. 92. 69 Am. De ate v. 
 
 Townsend, 2 Harring. (Del.) 277. When the 
 contract is several as well as joint, the plain- 
 tiff is at liberty to proceed against the par- 
 ties separately or jointly; and where one 
 member of a firm is sued separately on an 
 endorsement, the liability being joint and 
 several, he may have the other 
 
 parties but cannot abate the suit 
 their non-joinder: Jameson v. Smith. 19 Tex. 
 Civ. App. 90, 46 S. W. S01. In actions of 
 tort the plaintiff may join the parties con- 
 cerned in the tort, or not, at his ele Hon; 1 
 Saund. 291; 3 B. & P. 54; Gould, PI. ch. 2, 
 § 118. The non-joinder of any of the v 
 doers is no defence in any form of ad 
 Buddington v. Shearer, 22 Pick. (Mass.) 427. 
 ' When husband and wife should be 
 jointly, and one is sued alone, the non-join- 
 der may be pleaded in abatement; Archb. C. 
 P. 309. Non-joinder of co-executors oi 
 administrators may be pleaded in abate- 
 ment; Com. Dig. Abt. F. The form of action 
 is of no account where the action is sin 
 tially founded in contract: 6 Term 369. The 
 law under this head has in a great measure 
 become obsolete in many of the States, by 
 statutory provisions making contracts which 
 by the common law were joint, both joint 
 and several. 
 
 Pendency of another action must be plead- 
 ed in abatement and not in bar; Mattel v. 
 Conant. 156 Mass. 418, 31 N. E. 487; Central 
 Railroad & Banking Co. v. Coleman, 88 
 204. 14 S. E. 382; Danforth v. R. Co., on Ala. 
 614, 11 South. 60; and the Judgment of the 
 court below thereon is not subject I 
 Stephens v. Bank, 111 U. S. 197. 4 Suj I 
 336. 2S L. Ed. 399. But where two or more 
 tribunals have concurrent jurisdiction on the 
 same subject-matter between the same par- 
 ties, a suit commenced in any one of them is 
 a bar to an action I ir the same cause in any 
 other; Shelby v. Bacon, 10 How. (U. s 
 13 L. Ed. 326. The rule in equity is analo- 
 gous to the rule at law; Insurance Co. v. 
 Brune, 96 U. S. 588, 24 L. Ed. 737; but it is
 
 ABATEMENT AND REVIVAL 
 
 14 
 
 ABATEMENT AND REVIVAL 
 
 no ground for abatement of an action at 
 law, that a suit in equity is pending bi 
 the same parties for the same money where 
 the result of the action at law may be re- 
 quired to perfect the decree in equity; Kit- 
 tredge v. Race, 92 U. S. 116, 23 L. Ed 
 Prior pendency of an action unless both are 
 in the same jurisdiction is not cause for 
 abatement; O'Reilly v. R. Co., 16 R. I. 388, 
 17 Atl. 171, 906, 19 Atl. 244, 5 L. R. A. 364, 
 6 L. R. A. 719 ; Stanton v. Embry, 93 U. S. 
 548, 23 L Ed. 9S3. It must be the same 
 cause, founded on the same facts, between 
 the same parties, for the same rights and the 
 same relief; Watson v. Jones, 13 Wall. (U. 
 S.) 679, 20 L. Ed. 666 ; Marchand v. Frellsen, 
 105 U. S. 423, 26 L. Ed. 1057; Spencer v. 
 Johnston, 58 Neb. 44. 78 N. W. 482 ; Kansas 
 City S. Ry. Co. v. Railroad Commission, 106 
 La. 583, 31 South. 131; Richardson v. Opelt, 
 00 Neb, ISO, 82 N. W. 377. Pendency of suit 
 in a state court is no ground for a plea in 
 abatement to a suit upon same cause in a 
 Federal court; Wilcox & Gibbs Guano Co. v. 
 Ins. Co., 61 Fed. 199; Piquignot v. R. Co., 
 16 How. (U. S.) 104, 14 L. Ed. 863; and see 
 Gordon v. Gilfoil, 99 U. S. 168, 25 L. Ed. 383 ; 
 but see Wallace v. McConnell, 13 Pet (U. 
 S.) 136, 10 L. Ed. 95; Hunt v. Cotton Ex- 
 change, 20." U. S. 322, 27 Sup. Ct. 529, 51 L. 
 21 ; Barnsdall v. Waltemeyer, 142 Fed. 
 415, 73 C. C A. 515; Boatmen's Bank v. 
 Fritzlen, 135 Fed. 650, 68 C. C. A. 28S ; Bar- 
 ber Asphalt Pav. Co. v. Morris, 132 Fed. 
 945, 66 C. C. A. 55, 67 L. R. A. 761; City of 
 Mankato v. Paving Co., 142 Fed. 329, 73 C. 
 C. A. 439; Gamble v. City of San Diego, 79 
 Fed. 4S7; but the latter court will stay pro- 
 ceedings until the other suit is determined; 
 Zimmerman v. So Relle, 80 Fed. 417, 25 C. 
 C. A. 518; Bunker Hill & S. Mining & C. 
 Co. v. Mining Co., 109 Fed. 504, 47 C C A. 
 200 ; or compel an election ; Insurance Co. v. 
 Brune, 96 U. S. 5S8, 24 L. Ed. 737. Pend- 
 ency of prior suit in one state cannot be 
 pleaded in abatement of suit for same cause 
 and between same parties in another state; 
 Sandwich Mfg. Co. v. Earl, 56 Minn. 390, 
 57 N. W. 938; Renner v. Marshall, 1 Wheat. 
 (U. S.) 215, 4 L. Ed. 74; nor is a libel of a 
 vessel, under the Chinese Exclusion Act, for 
 smuggling opium, barred by a prior libel for 
 similar offenses in another Federal Court; 
 The Haytian Republic, 154 U. S. 118, 14 
 Sup. Ct. 992, 3S L. Ed. 930. Pendency of a 
 suit in a foreign country between the same 
 parties and for same cause would not bar or 
 abate an action; Insurance Co. v. Brune, 96 
 U. S. 588, 24 L. Ed. 737; Stanton v. Embry, 
 93 U. S. 548, 23 L. Ed. 983, 42 L. R. A. 449, 
 note; Crossman v. Rubber Co., 60 N. Y. Sup- 
 er. Ct. 6S, 16 N. Y. Supp. 609 ; Harvey v. R. 
 Co., 50 Minn. 405, 52 N. W. 905, 17 L. R. A. 
 84 ; North British Mercantile Ins. Co. v. 
 Bank, 3 Tex. Civ. App. 293, 22 S. W. 992. 
 A good answer to plea in abatement of pend- 
 ency of prior suit, is that such action has 
 
 been dismissed since trial of second action 
 began ; Moore v. Hopkins, S3 Cal. 270, 23 Pac. 
 318, 17 Am. St. Rep. 248; Nichols v. Clark, 
 45 Minn. 102, 47 N. W. 462; Warder v. Hen- 
 ry, 117 Mo. 530, 23 S. W. 776; Clark v. Com- 
 ford, 45 La. Ann. 502, 12 South. 763. 
 
 Privilege of defendant from being sued 
 may be pleaded in abatement; Marr v. John- 
 son, 9 Yerg. (Tenn.) 1; Bac. Abr. Abt. C. 
 See Privilege. A peer of England cannot, 
 as formerly, plead his peerage in al 
 of a writ of summons ; 2 Wm. IV. ch. 39. 
 It is a good cause of abatement that the de- 
 fendant was arrested at a time when he was 
 privileged from arrest; Hubbard v. Sanborn, 
 2 N. H. 46S; Legrand v. Bedinger, 4 T. B. 
 Monr. (Ky.) 539; or that he was served with 
 process when privileged from suits; Van Al- 
 styne v. Dearborn, 2 Wend. (N. Y.) 586; Hal- 
 sey v. Stewart, 4 N. J. D. 386; Greening v. 
 Sheffield, Minor (Ala.) 276 ; but a statute al- 
 lowing such plea applies not to persons im- 
 providently arrested, but only to the privi- 
 leged classes ; Bank of Vergennes v. Barker, 
 27 Vt. 243. The privilege of defendant as 
 member of the legislature has been pleaded 
 in abatement; King v. Coit, 4 Day (Conn.) 
 129 ; but the privilege of a non-resident wit- 
 ness cannot be ; Wilkins' Adm'r v. Brock, 79 
 Vt. 57, 64 Atl. 232. 
 
 For cases where the defendant may plead , 
 non-tenure, see Archb. C. P. 310; Cro. Eliz. 
 559; Manning v. Laboree, 33 Me. 343. 
 
 Where he may plead a disclaimer, see 
 Archb. C. P.; Com. Dig. Abt F, 15; Mills v. 
 Peirce, 2 N. H. 10. 
 
 Pleas in Abatement to the Count requir- 
 ed oyer of the original writ ; and, as this 
 cannot now be had, these pleas are, it seems, 
 abolished; 1 Chit. PI. 405 (6th Lond. ed.) ; 
 Saund. PI. Abatement. 
 
 Pleas in Abatement of the Writ. — In 
 general, any irregularity, defect, or infor- 
 mality in the terms, form, or structure of 
 the writ, or mode of issuing it, is a ground 
 of abatement; Gould, PI. ch. 5, s. 132. 
 Among them may be enumerated want of 
 date, or impossible date; want of venue, or, 
 in local actions, a wrong venue; a defective 
 return; Gould, PI. ch. 5, s. 133. Oyer 
 of the writ being prohibited, these errors 
 cannot be objected to unless they appear in 
 the declaration, which is presumed to cor- 
 respond with the writ ; Campbell v. Chaffee, 
 6 Fla. 724; 3 B. & P. 399; 14 M. & W. 161. 
 The objection then is to the writ through 
 the declaration; 1 B. & P. 648; there being 
 no plea to the declaration alone, but in bar ; 
 2 Saund. 209. A variance between writ and 
 declaration may properly be pleaded in 
 abatement; Weld v. Hubbard, 11 111. 573; 
 Pierce v. Lacy, 23 Miss. 193. 
 
 Such pleas are either to the form of the 
 writ, or to the action thereof. 
 
 Those of the first description were former- 
 ly either for matter apparent on the face of
 
 ABATEMENT AND ILIA 1VAL 
 
 15 
 
 ABATEMENT AND REVIVAL 
 
 the writ, or for mutter dehors; Com, Dig. 
 Abt. II, 17. 
 
 Pleas in abatement to the form of the 
 writ were formerly ullowed for very trilling 
 errors apparent on the face of the writ; 
 2 B. & P. 395, but since oyer lias been pro- 
 hibited, have fallen into disuse; Tidd, Pr. 
 636. 
 
 Pleas in abatement of the form of the 
 writ are now principally for matters dehors; 
 Com. Dig. Abt. II, 17; existing at the lime of 
 suing out the writ, or arising afterwards; 
 such ns misnomer of the plaintiffs or de- 
 fendant's name; Tidd, Pr. 637. 
 
 Pleas in Abatement to the Action of the 
 Writ are thai the action is misconceived, as 
 if assumpsit is brought instead of account, or 
 ss when ease is the proper action; 1 
 Show. 71; Tidd, Pr. 579; or that the right 
 of action had not accrued at the commence- 
 ment of the suit; Cro. Eliz. 325; Com. Dig, 
 Action, E, 1. But these pleas are unusual. 
 since advantage may be taken for the same 
 reasons on demurrer or under the general 
 issue; Gould, PI. ch. 5, s. 137; 1 C. & M. 492, 
 768. 
 
 Variance. Where the count varies from 
 the writ, or the writ varies from the record 
 or instrument on which the action is brought, 
 it is pleadable in abatement ; Cro. Eliz. 722 ; 
 1 H. Bla. 249; McNeill v. Arnold, 17 Ark. 
 154; Carpenter v. Hoyt, 17 111. 529; Smith 
 v. Butler, 25 N. H. 521; and not otherwise; 
 Lovell v. Doble, Quincy (Mass.) 88. If the 
 variance is only in matter of mere form, as 
 in time or place, when that circumstance is 
 immaterial, advantage can be taken only by 
 plea in abatement; Riley v. Murray, 8 Ind. 
 354; Cruikshank v. Brown. 5 Gilman (111.) 
 7.",; Latch 173; Gould, PL ch. 5, s. 97. But 
 if the variance is in matter of substance, as 
 if the writ sounds in contract and the dec- 
 laration in tort, advantage may also be taken 
 by motion in arrest of judgment; Pitman v. 
 Perkins, 28 N, H. 90; Cro. Eliz. 722. Pleas 
 under this head have been virtually abol- 
 ished by the rule refusing oyer of the writ ; 
 and the operation of this rule extends to all 
 pleas in abatement that cannot be proved 
 without examination of the writ; Gould, PL 
 ch. 5, s. 101. It seems that oyer of the writ 
 is allowed in some of the states which retain 
 the old system of pleading, as well as in 
 those which have adopted new systems. In 
 such states these rules as to variance are 
 of force; Pitman v. Perkins, 28 N. H. 90; 
 Carpenter v. Hoyt, 17 111. 529; Chapman v. 
 Spence, 22 Ala. 588; Pierce v. Lacy, -'■', .Miss. 
 193; Riley v. Murray, S Ind. 354; Lary v. 
 Evans, 35 N. II. 172; McNeill v. Arnold, 17 
 Ark. 154; Giles v. Perryman, 1 Ilarr. & G. 
 (Md.) 104; White v. Walker, 1 T. P.. Monr. 
 (Ky.) 35; Chirac v. Reinicker, 11 Wheat. (U. 
 S.) 2S0, 6 L. Ed. 474; Garland v. Chattle, 12 
 Johns. (N. Y.) 430; President, etc., of Bank 
 of New Brunswick v. Arrowsmith, 9 N. J. L. 
 2S4. See Variance. 
 
 Qualities of Pleas in Abatement. The 
 
 lant may plead in abatement tu 
 and demur or plead in bar to the n 
 
 taxation; 2 Saund. 2iu. The ^ i 
 rule is that whatever proves the writ 
 at the time of suing it oul shall abate the 
 writ entirely; 1 Saund. 286 in. 7). 
 
 As this plea delays the ascertainment of 
 the merits of the action, it is nut favored by 
 the courts; the greatest accuracy and 
 
 therefore required ; and it cannot 
 be amended; 2 Saund. 298; Co. Litt ::'■■-; 13 
 M. & W. 171; Jenkins v. Pe] on, 2 Johns. 
 Cas. (N. Y.) 312; 8 Bingh. 416; Getchell v. 
 Boyd, 44 Me. 482; Mandel v. Peet, 18 Ark. 
 
 Anonymous, 1 Hemp. 215, Fed. 
 No. 18,224; Roberts v. Beim, 27 Ala. 
 It must contain a direct, full, and positive 
 averment of all the material facts; M< 
 Nash, 30 Vt. 70; Lary v. El V II. 
 
 172; Ellis v. Ellis, 4 It. I. 110; Tweed v. [ab- 
 bey, 37 Me. 49 ; Dinsmore v. Pendexter, 2S 
 N. H. 18; Townsend v. Jeffries' Adm'r, 21 
 Ala. 329; Wales v. Jones, 1 Mich. 251. It 
 must give enough so as to enable the plain- 
 tiff by amendment completely to supply the 
 defect or avoid the mistake on which the 
 plea is founded; 4 Term 224; 1 Saund. 271 
 (n. 4); Wadsworth v. Woodford, 1 Day 
 (Conn.) 2S; Rea v. Hayden, 3 Mass. 24 ; Har- 
 row v. Sellers' Ex'rs. 2 N. C. 501 : 2 Ld. 
 Raym. 117S; 1 East 634. 
 
 It must not be double or repugnant; 3 M. 
 & W. 007. It must have an apt and ; 
 beginning and conclusion; 3 Term 186; Jen- 
 kins v. Pepoon, 2 Johns, ('as. (N. Y.) 312; 
 Schoonniakers' Ex'rs v. Elmendorf, 10 Johns. 
 (N. Y.) 49; 2 Saund. 209. The whole matter 
 of complaint must be covered by the plea: 2 
 B. & P. 420. It cannot he pleaded after 
 making full defence; 1 Chit PL 441 (6th 
 Lond. ed.). 
 
 A plea in abatement and a plea or answer 
 in bar cannot be pleaded together; Southern 
 P.ldg. & Loan Ass'n v. Ins. Co.. 23 Pa. Super. 
 Ct. SS; Huntington Mfg. Co. v. Schofleld, 28 
 Ind. App. 95, 62 N. E. 106; Trentman v. 
 Fletcher, 100 Ind. 105; Carmien v. Cornell, 
 14S Ind. S3, 47 N. E. 210 (in Indiana tl 
 a statute forbidding it; Field v. Malom 
 Ind. 251, 1 N. E. 507) ; contra. Fisher v. 
 prie, 125 Mass. 472; O'Loughlin v. Bird, 128 
 
 GOO; Parks v. Smith. 155 M 
 N. E. 1044; (.where ex] ns other* 
 
 Pratt v. Sanger, 4 Cray [Mass.] 84 and Mor- 
 ton v. Sweet ser, 12 Allen [Mass.] 134, are 
 characterized as obiter) ; Hurlburt v. Palm- 
 er, 39 Neb. 158, 57 v. W, L019; f\ i lin v. 
 
 Kimsey. 74 Neb. 614, 105 N. W. 89 (citing 
 many intermediate cases and establishing the 
 rule that a plea to the merits mi y ! 
 with one to the jurisdiction, when the lat- 
 ter sets up an objection dehors the re< 
 and see Reynob ' 83 Ya. si 7. 3 s. 
 
 E. 710, 5 Am. St. Rep. .".17. See also Duke 
 v. Duke. 70 N. J. Eq. 135, 62 Atl. 466; and a 
 plea to the merits tiled simultaneously with
 
 ABATEMENT AND REVIVAL 
 
 16 
 
 ABATEMENT AND REVIVAL 
 
 a plea In abatement waives the latter ; Put- 1 
 nain Lumber Co. v. Ellis-Young Co., 50 Fla. j 
 251, 39 Soutb. 193; City of Covington v. Lim- 
 erick, 40 S. W. 254, 19 Ky. L. Rep. 330; Las- 
 sas v. McCarty, 47 Or. 471, 84 Pac. 76; Mau- 
 pin v. Ins. Co., 53 W. Va. 557, 45 S. E. 1003; 
 Crowns v. Land Co., 99 Wis. 103, 74 N. W. 
 540. 
 
 In some states tbis rule is changed by stat- 
 ute; Moffitt v. Chronicle Co., 107 la. 407, 78 
 N. W. 45; Little Rock Trust Co. v. R. Co., 
 195 Mo. 6G9, 93 S. W. 944; Thach v. Mut 
 Ace. Ass'n, 114 Tenn. 271, S7 S. W. 255; 
 Pyron & Davidson v. Graef, 31 Tex. Civ. 
 App. 405, 72 S. W. 101; or rule of court; Na- 
 tional Fraternity v. Circuit Judge, 127 Mich. 
 186, S6 N. W. 540. 
 
 But tbis rule was bold not to apply to a 
 1 plea denying partnership of tbe plain- 
 tiffs, filed under a statute requiring denial 
 of tbe character in which tbe plaintiff sues 
 in order to control it ; Robinson v. Parker, 11 
 App. D. O. 132. 
 
 As to the form of pleas in abatement, see 
 Harvey v. Hall, 22 Vt. 211; 1 Chit PI. (6th 
 Lond. ed.) 454; Com. Dig. Abt. I, 19; 2 
 Saund. 1 (n. 2). 
 
 As to the time of pleading matter in abate- 
 ment, it must be pleaded before any plea to 
 the merits, botli in civil and criminal cases, 
 except in cases where it arises or comes to 
 the knowledge of the party subsequently; 
 Turns v. Com., 6 Mete. (Mass.) 224; Univer- 
 sity of Vermont v. Joslyn, 21 Vt. 52 ; Inhab- 
 itants of Plantation No. 9 v. Bean, 40 Me. 
 218; Butts v. Grayson, 14 Ark. 445; Hart v. 
 Turk, 15 Ala. 675; Hatry v. Sbuman, 13 
 Mo. 547; Ricker v. Scofield, 28 111. App. 32; 
 and tbe right is waived by a subsequent plea 
 to tbe merits; Sbeppard v. Graves, 14 How. 
 (U. S.) 505, 14 L. Ed. 518; Hart v. Turk, 15 
 Ala. 675; Smith v. State, 19 Conn. 493; 
 Saum v. Bd. of Corn's, 1 G. Greene (la.) 165; 
 Chapman v. Davis, 4 Gill (Md.) 166; Cook 
 v. Burnley, 11 Wall. (U. S.) 659, 20 L. Ed. 29. 
 See Plea puis dabbein continuance. 
 
 Demurrer to complaint for insufficiency of 
 facts, waives all matter in abatement; Marx 
 x. Croisan, 17 Or. 393, 21 Pac. 310. 
 
 Of the Affidavit of Truth. Every dilatory 
 plea must be proven to be true, either by 
 affidavit, by matter apparent upon the rec- 
 ord, or probable matter sbown to the court 
 to induce them to believe it; 3 B. & P. 397; 
 Holden v. Scanlin, 30 Vt 177; White v. Whit- 
 man, 1 Curt. 494, Fed. Cas. No. 17,561; 
 Humphrey v. Whitten, 17 Ala. 30 ; Knowl- 
 ton v. Culver, 1 Chand. (Wis.) 16; Bank of 
 Tennessee v. Jones, 1 Swan (Tenn.) 391; 
 Saum v. Bd. of Corn's, 1 G. Greene (la.) 165. 
 It is not necessary that the affidavit should 
 be made by the party himself; his attorney, 
 or even a third person, will do ; 1 Saund. PL 
 & Ev. 3 (5th Am. ed.). The plaintiff may 
 waive an affidavit; 5 Dowl. & L. 737; Rich- 
 mond v. Tallmadge, 16 Johns. (N. Y.) 307. 
 The affidavit must be coextensive with the 
 
 plea ; 3 Nev. & M. 2G0, and leave nothing to 
 be collected by inference; Say. 293. It 
 should state that the plea is true in sub- 
 stance and fact, and not merely that the 
 plea is a true plea; 3 Stra. 705; Day v. Ham- 
 burgh, 1 Browne (Pa.) 77; Rapp v. Elliot, 2 
 Dall. (Pa.) 184, 1 L Ed. 341. 
 
 Plea in abatement on account of non-join- 
 der of joint promisors need not be' verified 
 by oath, National Niantic Bank v. Express 
 Co., 16 R. I. 343, 15 Atl. 763. 
 
 Judgment on Pleas in Abatement. If is- 
 sue be joined on a plea in abatement, a 
 judgment for the plaintiff upon a verdict is 
 final; 1 Str. 532; Moore v. Morton, 1 Bibb 
 (Ky.) 234; McOartee v. Chambers, 6 Wend. 
 (N. Y.) 649, 22 Am. Dec. 556; Good v. Leban, 
 8 Cusb. (Mass.) 301 ; Dodge v. Morse, 3 N. H. 
 232; Haight v. Holley, 3 Wend. (N. Y.) 258; 
 but judgment for plaintiff upon a demurrer 
 to a plea in abatement is not final, but mere- 
 ly respondeat ouster; Ld. Raym. 699 ; Whit- 
 ford v. Flanders, 14 N. H. 371; Lambert v. 
 Lagow, 1 Blackf. (Ind.) 388. After judgment 
 of respondeat ouster, the defendant has four 
 days' time to plead, commencing after the 
 judgment has been signed; S Bingb. 177. 
 He may plead again in abatement, provided 
 the subject-matter pleaded be not of the 
 same degree, or of any preceding degree or 
 class with that before pleaded; Com. Dig. 
 Abt I, 3 ; 1 Saund. PI. & Ev. 4 (5th Am. ed.) ; 
 Tidd, Pr. 64L 
 
 If the plea is determined in favor of the 
 defendant either upon an issue of law or 
 fact, the judgment is that the writ or bill be 
 quashed; Yelv. 112; Bac. Abr. Abt. P; Gould, 
 PL cb. 5, § 159; 2 Saund. 211 (n. 3). 
 
 See Judgment. 
 
 As to abatement and revival of actions, tbe 
 power and practice of United States courts 
 are governed by the law of the state in 
 which action is pending at death; Wilhite v. 
 Skeleton, 149 Fed. 67, 78 C. C. A. 635. 
 
 ABATOR. One who abates or destroys 
 a nuisance. One who, having no right of 
 entry, gets possession of the freehold to the 
 prejudice of an heir or devisee, after the 
 time when the ancestor died, and before the 
 heir or devisee enters. Litt § 397 ; Perk. 
 Conv. § 383: 2 Prest. Abs. 296, 300. See Ad. 
 Ej. 43; 1 Wasbb. R. P. 225. 
 
 ABATUDA. Anything diminished; as 
 moneta abatuda; which is money clipped or 
 diminished in value. Cowell. 
 
 ABAVIA. A great-great-grandmother. 
 
 ABA VITA. Used for abamita, which see. 
 
 ABAVUNCULUS. A great-great-grand- 
 mother's brother. Calvinus, Lex. 
 
 ABA V US. A great-great-grandfather, or 
 fourth male ascendant. 
 
 ABBACY. The office of an abbot. The 
 dignity of the office. 
 
 ABBAT, ABBOT. A spiritual lord or gov-
 
 ABBAT, ABBOT 
 
 17 
 
 ABBREVIATION 
 
 ernor having the rule of a religious house. 
 Cunningham. 
 
 ABBEY. A monastery or convent for the 
 use of an association of religious per. 
 having an abbot or abbess to preside over 
 them. 
 
 ABBOT. They were prelates in the 13th 
 century who had had an Immemorial right to 
 sit in the national assembly. Taylor, Sdi 
 of Jurispr. L'S7. 
 
 ABBREVIATION. A shortened form of a 
 word, obtained by th m of one or 
 
 more letters or syllables from the middle or 
 
 end of the word. 
 
 The abbreviations In common use in modern 
 times consist of the initial letter or letters, syllable 
 or syllables, of the word. Anciently, also, contract- 
 ed forms of voids, obtained by the omission of 
 letters intermediate between the initial and final 
 letters were much in use. These latter forms are 
 now more commonly designated by the term con- 
 traction. 
 
 Abbreviations are of frequent use in referring to 
 text-books, reports, etc., and in indicating dates, 
 but should be very sparingly employed, if at all, In 
 formal and important legal documents. See 4 C. 
 & P. 01 ; 9 Co. 48. No part of an indictment should 
 contain any abbreviations except in cases where a 
 facsimile of a written instrument is necessary to 
 be set out. 1 East ISO, n. The variety and num- 
 ber of abbreviations are as nearly illimitable as 
 the ingenuity of man can make them ; and the 
 advantages arising from their use are, to a great 
 extent, counterbalanced by the ambiguity and un- 
 certainty resulting from the usually inconsiderate 
 selection which is made. 
 
 As to how far a judicial record may con- 
 taiu abbreviations of English words without 
 invalidating it, see Stein v. Meyers, 253 111. 
 199, 97 N. E. 297. 
 
 The following list is believed to contain all 
 abbreviations in common use. Where a 
 shorter and a longer abbreviation are in 
 common use, both are given. 
 
 A. Alabama ;— American, see Am. ;— Anonymous : 
 —Arkansas;— Abbott (see Abb.);— Annuals (Louisi- 
 ana) ;— Atlantic Reporter. 
 
 A, a, B, b. "A" front, "B" back of a leaf. 
 
 A. B. Anonymous Reports at end of Benloe's Re- 
 ports, commonly called New Ucnloe. 
 
 A. B. R. American Bankruptcy Reports. 
 
 A'B. R. J. N. S. W. A'Beckett's Reserved (Equi- 
 ty) Judgments, New South Wales. 
 
 A'B. R. J. P. P. A'Beckett's Reserved Judgments, 
 Port Philip. 
 
 A. C. Appellate Court;— Case on Appeal;— Appeal 
 Cases, English Chancery; Law Reports Appeal 
 Cases. 
 
 A. C. 
 [1891] A. C. English Appeal Cases; Law Re- 
 ports, 3d Scries, 1891. 
 
 A. C. Same for 1892, etc. 
 
 A. V. C. American Corporation Cases (With- 
 row's). 
 
 A. C. R. American Criminal Reports. 
 
 A. D. American Decisions;— Anno Domini; in the 
 year of our Lord ;— Appellate Division, New York 
 Supreme Court. 
 
 A. E. C. American Electrical Cases. 
 
 A. G. Attorney General. 
 
 A. G. Dec. Attorney General's Decisions. 
 
 A. G. Op. Attorney General's Opinions. 
 
 A. Ins. R. American Insolvency Reports. 
 
 A. K. Marsh. A. K. Marshall's Reports, Kentucky, 
 
 A. L. C. American Leading Cases. 
 
 A. L. J. Albany Law Journal. 
 
 Bouv.— 2 
 
 A. Moo. A, Moore's Reports, In vol. 1 Bosanquet 
 & Puller. 
 
 A. M. d O. Armstrong, Macartney & Ogle's Irish 
 Nisi Prlus Reports. 
 
 A. N. C. Abbott's New Cases, New York;— Amer- 
 ican Negligence Cases. 
 
 A. N. R. American Negligence Reports, Current 
 Series. 
 
 A. P. B. or Ashurst MSS. L. I. L. Ashurst's Pa- 
 per-books; the manuscript paper-books of Ashurst. 
 J., Buller, J., Lawrence, J., and Dampier, J., in 
 Lincoln's Inn Library. 
 
 A. R. American Reports;— Anno Rcgni; In the 
 year of the reign;— Atlantic Reporter;— Appeal Re- 
 ports, Ontario. 
 
 A. R. C. American Railway Cases. 
 
 A. R. R. American Railway Reports. 
 
 A. R. V. R. it. Anno Regni Victoria Regina Vi- 
 cesimo Secundo. 
 
 A. Rep. American Reports;— Atlantic Reporter 
 (Commonly cited Atl. or A.). 
 
 A. 8. Acts of Sederunt, Ordinances of the Court 
 of Session, Scotland. 
 
 A. S. R. American State Reports. 
 
 A. d A. Corp. Angell & Ames on Corporations. 
 
 A. d E. Adolphus & Ellis's English King's Bench 
 Reports;— Admiralty and Ecclesiastical. 
 
 A.d E. Corp. Ca. American and English Corpora- 
 tion Cases. 
 
 A.dE.Encyc. American and English Encyclo- 
 paedia of Law. 
 
 A. d E. N. S. Adolphus & Ellis's Reports, New 
 Series, English Queen's Bench, commonly cited 
 <?. B. 
 
 A. d E. R. R. C. American & English Railroad 
 Cases. 
 A. d F. Fixt. Amos & Ferrard on Fixtures. 
 A. d II. Arnold & Hodges's English Queen's 
 Bench Reports. 
 
 A.dN. Alcock & Napier's Irish King's Bench 
 Reports. 
 Ab. Abridgment. 
 
 Ab. Adm. Abbott's Admiralty Reports. 
 Ab. App. Dec. Abbott's New York Court of Ap- 
 peals Decisions. 
 
 Ab. Ct. App. Abbott's New York Court of Appeals 
 Decisions. 
 
 Ab. Eg. Cos. Equity Cases Abridged, English 
 Chancery. 
 
 Ab. N. Y. Ct. App. Abbott's New York Court of 
 Appeals Decisions. 
 Ab. N. Y. Dig. Abbott's New York Digest 
 Ab. N. Y. Pr. Abbott's Practice Reports, New 
 York. 
 
 Ab. N. Y. Pr. N. S. Abbott's Practice Reports, 
 New Series, New York. 
 Ab. Nat. Dig. Abbott's National Digest 
 Ab. New Cos. Abbott's New Cases, various New 
 New York courts. 
 Ab. PL Abbott's Pleadings under the Code. 
 .46. Pr. Abbott's Practice Reports, New York. 
 Ab. Pr. N. S. Abbott's Practice Reports, New Se- 
 ries, New York. 
 Ab. Sh. Abbott (Lord Tenterden) on Shipping. 
 Ab. U. S. Abbott's Reports, United States Circuit 
 Court 
 
 Ab. V. S. Pr. Abbott's United States Courts Prac- 
 tice. 
 Abb. Abbott. See below. 
 
 A bb. Ad. or Abb. Adm. Abbott's Admiralty Re- 
 ports. 
 
 Abb. App. Dec. Abbott's New York Court of Ap- 
 peals Decisions. 
 
 Abb. Beech. Tr. Abbott's Report of the Beech, r 
 Trial. 
 
 Abb. C. C. Abbott's Reports, United States Circuit 
 Court. 
 
 Abb. Ct. App. Abbott's New York Court of Ap- 
 peals Decisions. 
 
 Abb. Dec. Abbott's New York Court of App. 
 Decisions. 
 Abb. Dig. Abbotts New York Digest. 
 Abb. Dig. Corp. Abbott's Digest Law of Corpora- 
 tions. 
 Abb. Mo. Ind. Abbott's Monthly Index.
 
 ABBREVIATION 
 
 18 
 
 ABBREVIATION 
 
 Abb. N. C. Abbott's New Cases, New York. 
 
 Abb. N. S. Abbott's Practice Reports, New Se- 
 ries. 
 
 Abb. N. Y. App. Abbott's New York Court of Ap- 
 peals Decisions. 
 
 Abb. N. Y. Dig. Abbott's New York Digest. 
 
 Abb. Nat. Dig. Abbott's National Digest. 
 
 Abb. Pr. or Abb. Prac. Abbott's New York Prac- 
 tice Reports. 
 
 Abb. Pr. N. S. Abbott's New York Practice Re- 
 ports, New Series. 
 
 Abb. Ship. Abbott (Lord Tenterden) on Shipping. 
 
 Abb.Tr. Ev. Abbott's Trial Evidence. 
 
 Abb. U. 8. Abbott's United States Circuit Court 
 Reports. 
 
 Abb. Y. Bk. Abbott's Year Book of Jurisprudence. 
 
 Abbott. Abbott's Dictionary. 
 
 Abdy's R. C. P. Abdy's Roman Civil Procedure. 
 
 A'Beck. Judg. Yict. A'Beckett's Reserved Judg- 
 ments of Victoria. 
 
 Abr. Abridgment;— Abridged. 
 
 Abr. Case. Crawford & Dix's Abridged Cases, 
 Ireland. 
 
 Abr. Case. Eq. Equity Cases Abridged (English). 
 
 Abr. Cas. Eq. or Abr. Eq. Cos. Equity Cases Abridg- 
 ed, English Chancery. 
 
 Abs. Absolute. 
 
 Ace. Accord or Agrees. 
 
 Act. Acton's Reports, Prize Causes, English Privy 
 Council. 
 
 Act. Can. Monro's Acta Cancellariae. 
 
 Act. Pr. C. Acton's Reports, Prize Causes, Eng- 
 lish Privy Council. 
 
 Act. Reg. Acta Regia. 
 
 Ad. Cas. Sales. Adams's Cases on the Law of 
 Sales. 
 
 Ad. Con. Addison on Contracts. 
 
 Ad. E. Adams on Ejectment. 
 
 Ad. Eq. Adams's Equity. 
 
 Ad fin. Ad finem, at or near the end. 
 
 Ad. Jus. Adam's Justiciary Reports (Scotch). 
 
 Ad. Rom. Ant. Adams's Roman Antiquities. 
 
 Ad. Torts. Addison on Torts. 
 
 Ad. & E. or Ad. & Ell. Adolphus & Ellis's English 
 King's Bench Reports. 
 
 Ad. & Ell. N. S. Adolphus & Ellis's Reports, New 
 Series;— English Queen's Bench (commonly cited 
 Q.B.). 
 
 Adams. Adams's Reports, vols. 41, 42 Maine; — Ad- 
 ams's Reports, vol. 1 New Hampshire. 
 
 Adams, Eq. Adams's Equity. 
 
 Adams, Rom. Ant. Adams, Roman Antiquities. 
 
 Add. Addison's Reports, Pennsylvania; — Addams's 
 English Ecclesiastical Reports. 
 
 Add. Abr. Addington's Abridgment of the Penal 
 Statutes. 
 
 Add. Con. Addison on Contracts. 
 
 Add. Eccl. Addams's Ecclesiastical Reports, Eng- 
 lish. 
 
 Add. Pa. Addison's Reports, Pennsylvania. 
 
 Add. Torts. Addison on Torts. 
 
 Addams. Addams's Ecclesiastical Reports, Eng- 
 lish. 
 
 Addis. Addison's Pennsylvania Reports. 
 
 Adj. Adjudged, Adjourned. 
 
 Adjournal, Books of. The Records of the Court of 
 Justiciary, Scotland. 
 
 Adm. Admiralty. 
 
 Adm. & Ecc. Admiralty and Ecclesiastical; — Eng- 
 lish Law Reports, Admiralty and Ecclesiastical. 
 
 Admr. Administrator. 
 
 Admx. Administratrix. 
 
 Adol. & El. Adolphus & Ellis's Reports, English 
 King's Bench. 
 
 Adol.dEl.fN.S.). Adolphus & Ellis's Reports, 
 New Series, English Queen's Bench, commonly cited 
 Q. B. 
 
 Adolph. dc E. Adolphus & Ellis's Reports, English 
 King's Bench, 
 
 Adolph. & E. N. S. Adolphus & Ellis's Reports, 
 New Series, English Queen's Bench, commonly cit- 
 ed Q. B. 
 Ads. Ad sectam, at suit of. 
 Adv. Advocate. 
 Adye C. M. Adye on Courts-Martial. 
 
 Aelf. C. Canons of Aelfric. 
 
 Agn. Pat. Agnew on Patents. 
 
 Agn. St. of Fr. Agnew on the Statute of Frauds- 
 
 Agra II. C. Agra High Court Reports, India. 
 
 Aik. Aikens's Vermont Reports. 
 
 Aikcns (Yt.). Aikens's Reports, Vermont. 
 
 Ainsw. or Ainsworth. Ainsworth's Lexicon. 
 
 Al. Aleyn's Select Cases, English King's Bench; 
 —Alabama ;— Allen. 
 
 Al. Tel. Cas. Allen's Telegraph Cases, American 
 and English. 
 
 Al. & Nap. Alcock & Napier's Reports, Irish 
 King's Bench and Exchequer. 
 
 Ala. Alabama;— Alabama Reports. 
 
 Ala. N. S. Alabama Reports, New Series. 
 
 Ala. Sel. Cas. Alabama Select Cases, by Shep- 
 herd, see Alabama Reports, vols. 37, 38 and 39. 
 
 A la. St. Bar Assn. Alabama State Bar Associa- 
 tion. 
 
 Alaska Co. Alaska Codes, Carter. 
 
 Alb. Arb. Albert Arbitration, Lord Cairns's De- 
 cisions. 
 
 Alb. L. J. or Alb. Law Jour. Albany Law Journal. 
 
 Ale. or Ale. Reg. or Ale. Reg. Cas. Alcock's Irish 
 Registry Cases. 
 
 Ale. <& N. Alcock & Napier's Reports, Irish King's 
 Bench and Exchequer. 
 
 Aid. Alden's Condensed Reports, Pennsylvania. 
 
 Aid. Hist. Aldridge's History of the Courts of 
 Law. 
 
 Aid. Ind. Alden's Index of U. S. Reports. 
 
 Aid. & Yan Hoes. Dig. Alden & Van Hoesen's Di- 
 gest, Laws of Mississippi. 
 
 Aldr. Cas. Cont. Aldred's Cases on Contracts. 
 
 Alex. Cas. Report of "Alexandra" case, by Dud- 
 ley. 
 
 Alex. Ch. Pr. Alexander's Chancery Practice. 
 
 Alexander. Alexander's Reports, vols. 66-72 Mis- 
 sissippi. 
 
 Aleyn. Aleyn's Select Cases, English King's 
 Bench. 
 
 Alls. Prin. Scotch Law. Alison's Principles of the 
 Criminal Law of Scotland. 
 
 All. Allen's Massachusetts Reports. 
 
 All. N. B. Allen's New Brunswick Reports. 
 
 All. Ser. Allahabad Series, Indian Law Reports. 
 
 All. Sher. Allen on Sheriffs. 
 
 All. Tel. Cas. Allen's Telegraph Cases. 
 
 All. & Mor. Tr. Allen & Morris's Trial. 
 
 Allen. Allen's Massachusetts Reports; — Allen's 
 Reports, New Brunswick; — Allen's Reports, Wash- 
 ington. 
 
 Allen (N. B.). Allen's Reports, New Brunswick 
 Supreme Court. 
 
 Allen Tel. Cas. Allen's Telegraph Cases. 
 
 Alleyne L. D. of Mar. Alleyne's Legal Degrees of 
 Marriage Considered. 
 
 Allin. Allinson, Pennsylvania Superior and Dis- 
 trict Court. 
 
 Alison Prac. Alison's Practice of the Criminal 
 Law of Scotland. 
 
 Alison Princ. Alison's Principles of ditto. 
 
 Alln. Part. Allnat on Partition. 
 
 Am. America, American, or Americana. 
 
 Am. Bank. R. or Am. B'kc'y Rep. American Bank- 
 ruptcy Reports. 
 
 Am. Bar Asso. American Bar Association. 
 
 Am. C. L. J. American Civil Law Journal, New 
 York. 
 
 Am. Cent. Dig. American Digest (Century Edi- 
 tion). 
 
 Am. Ch. Dig. American Chancery Digest. 
 
 Am. Corp. Cas. Withrow's American Corporation 
 Cases. 
 
 Am. Cr. Rep. American Criminal Reports. 
 
 Am. Crim. Rep. American Criminal Reports, by 
 Hawley. 
 
 Am. Cr. Tr. American Criminal Trials. Chand- 
 ler's. 
 
 Am. Dec. American Decisions. 
 
 Am. Dig. American Digest. 
 
 Am. Dig. Cent. Ed. American Digest (Century 
 Edition). 
 
 Am. Dig. Dec. Ed. or Am. Dig. Decen. Ed. Ameri- 
 can Digest (Decennial Edition).
 
 ABBREVIATION 
 
 19 
 
 ABBREVIATION 
 
 Am. El. Ca. or Am. Elec. Ca. American Electrical 
 Cases. 
 
 Am. Ins. Rep. American Insolvency Reports. 
 
 Am. Insolv. Rep. American Insolvency Reports. 
 
 Am. Jour. Pol. American Journal of Politics. 
 
 Am. Jour. Soc. American Journal of Sociology. 
 
 Am. Jur. American Jurist, Boston. 
 
 Am. L. C. R. P. Sharswood and Budd's Leading 
 Cases on Real Property. 
 
 Am. L. Cas. American Leading Cases (Hare & 
 Wallace's). 
 
 Am. L. Elect. American Law of Elections. 
 
 Am. L.J. American Law Journal (Hall's), Phila- 
 delphia. 
 
 Am. L.J. (0.). American Law Journal, Ohio. 
 
 '.. J. N. S. American Law Journal, New Se- 
 ries, Philadelphia. 
 
 Am. L. M. American Law Magazine, Philadelphia. 
 
 Am.L.R. American Law Register, Philadelphia. 
 
 Am. L. Rec. American Law Record, Cincinnati. 
 
 Am. L. Reg. d Rev. American Law Register and 
 Review, Philadelphia. 
 
 Am. L. Rep. American Law Reporter, Davenport, 
 Iowa. 
 
 Am. L. Rev. American Law Review, St. Louis. 
 
 Am. L. T. American Law Times, Washington, 
 D. C. 
 
 Am. L. T. Bank. American Law Times Bankrupt- 
 cy Reports. 
 
 Am. L. T. R. American Law Times Reports. 
 
 Am. L. T. R. N. S. American Law Times Reports, 
 New Series. 
 
 Am. Law Jour. American Law Journal (Hall's) 
 Philadelphia. 
 
 Am. Law Join-. N. S. American Law Journal, New 
 Series, Philadelphia. 
 
 Am. Law Mag. American Law Magazine, Phila- 
 delphia. 
 
 Am. Law Rec. American Law Record, Cincinnati. 
 
 Am. Law Reg. American Law Register, Phila- 
 delphia. 
 
 Am. Law Rep. American Law Reporter, Daven- 
 port, Iowa. 
 
 Am. Law Rev. American Law Review, St. Louis. 
 
 Am. Law Times. American Law Times, Washing- 
 ton, D. C. 
 
 Am. La-wy. American Lawyer, New York City. 
 
 Am. Lead. Cas. Hare & Wallace's American 
 Leading Cases. 
 
 Am. Neg. Ca. or Am. Neg. Cas. American Negli- 
 gence Cases. 
 
 Am. Neg. Rep. American Negligence Reports. 
 
 Am. PL Ass. American Pleader's Assistant. 
 
 Am. Pr. Rep. American Practice Reports, Wash- 
 ington, D. C. 
 
 Am. Prob. or Am. Prob. Rep. American Probate 
 Reports. 
 
 Am. R. American Reports. 
 
 Am. R. R. Cas. American Railway Cases (Smith 
 & Bates'). 
 
 Am. R. R. Rep. American Railway Reports, New 
 York. 
 
 Am. R. R. d C. Rep. American Railroad and Cor- 
 poration Reports. 
 
 Am. Rail. Cas. Smith and Bates's American Rail- 
 way Cases. 
 
 Am. Rail. R. American Railway Reports. 
 
 Am. Rep. American Reports (Selected Cases). 
 
 Am. Ry. Ca. American Railway Cases. 
 
 Am. Ry. Rep. American Railway Reports. 
 
 Am. St. P. American State Papers. 
 
 Am. St. Rep. American State Reports. 
 
 Am. St. Ry. Dec. American Street Railway Deci- 
 sions. 
 
 Am. Them. American Themis, New York. 
 
 Am. Tr. M. Cas. Cox's American Trade Mark 
 Cases. 
 
 Am. d Eng. Corp. Cas. American and English Cor- 
 poration Cases. 
 
 Am. d Eng. Dec. in Eq. American and English 
 Decisions in Equity. 
 
 Am. d Eng. Encyc. Law. American and English 
 Encyclopa;dia of Law. 
 
 Am. d Eng. Pat. Ca. American and English Pat- 
 ent Cases. 
 
 Am. d Eng. Pat. Cas. American and English Pat- 
 ent Ca 
 
 Am. d Eng. R. Cos. American and English Rail- 
 road Ci 
 
 R. R. Ca. American and English Rail- 
 road ' ' 
 
 Ry. Ca. American and English Rail- 
 way Cases. 
 
 Amb. or Ambl. Ambler's English Chancery Re- 
 port>\ 
 
 Amer. American;— Amerman, vols. 111-115 Penn- 
 sylvania. 
 
 Amer. Jur. American Jurist. 
 
 Amer. Law. American Lawyer, New York. 
 
 Amer. Law Reg. (N. S.J. American Law Regis- 
 ter, New Series. 
 
 ■ . Law Reg. (0. S.J. American Law Register, 
 Old Series. 
 
 Amer. Law Rev. American Law Review. 
 
 Amer. & Eng. Enc. Law. American & English En- 
 cyclopaedia of Law. 
 
 Ames. Ames's Reports, vol. 4-7 Rhode Island;— 
 Ames's Reports, vol. 1 Minnesota. 
 
 Ames Cas. B. d N. Ames's Cases on Bills and 
 Notes. 
 
 Ames Cas. Par. Ames's Cases on Partnership. 
 
 Ames Cas. Part. Ames's Cases on Partnership. 
 
 Ames Cas. PI. Ames's Cases on Plead 
 
 Ames Cas. Sur. Ames's Cases on Suretyship. 
 
 Ames Cas. Trusts. Ames's Cases on Trusts. 
 
 Ames, K. d B. Ames, Knowles & Bradley's Re- 
 ports, vol. 8 Rhode Island. 
 
 Ames d Sm. Cat. Toils. Ames & Smith's Cases on 
 Torts. 
 
 Amos Jur. Amos's Science of Jurisprudence. 
 
 Amos d F. or Amos d F. Fixt. Amos and Ferrard 
 on Fixtures. 
 
 An. Anonymous. 
 
 And. Anderson's Reports, English Common Pleas 
 and Court of Wards;— Andrews's Reports, vols. 63-72 
 Connecticut;— Andrews's English King's Bench Re- 
 ports. 
 
 And. Ch. Ward. Anderson on Church Wardens. 
 
 And. Com. Anderson's History of Comm> i 
 
 Anders, or Anderson. Anderson's Reports, English 
 Common Pleas and Court of Wi r 
 
 Andr. Andrews'a Reports, English King's Bench. 
 See also And. 
 
 Andr. Pr. Andrews's Precedents of Leases. 
 
 Ang. Angell's Reports, Rhode Island Reports. 
 
 Ang. Adv. Enj. Angell on Adverse Enjoyi.. 
 
 Ang. Ass. Angell on Assignments. 
 
 Ang. B. T. Angell on Bank Tax. 
 
 Ang. Carr. Angell on Carriers. 
 
 Ang. Corp. Angell and Ames on Corporations. 
 
 Ang. High. Angell on Highways. 
 
 Ang. Ins. Angell on Insurance. 
 
 Ang. Lim. Angell on Limitations. 
 
 Ang. Tide Wat. or Ang. Tide Waters. Angell on 
 Tide Waters. 
 
 Ang. Water C. or Ang. Water Courses. Angell on 
 Water Courses. 
 
 Ang. d A. Corp. Angell and Ames on Corporations. 
 
 Ang. d D. High. Angell and Durfee on Highways. 
 
 Ang. d Dur. (R. I.J Angell & Durfee's Rhode Is- 
 land Reports, vol. 1. 
 
 Ann. Queen Ann; as 1 Ann. c 7. 
 
 Ann. C. Annals of Congress. 
 
 Ann. Cas. American & English Annotated Cases; 
 — New York Annotated Cases. 
 
 Ann. de la Pro. Annales de la Propriet6 Industrl- 
 elle. 
 
 Aim. de Leg. Annualre de Legislation Estrangere, 
 Paris. 
 
 Ann. Jud. Annuaire Judiciaire, Paris. 
 
 Ann. Reg. Annual Register, London. 
 
 Ann. Reg. N. S. Annual Register, New Series, 
 London. 
 Ann. St. Annotated Statutes. 
 
 Annaly. Annaly's Edition of Hardwlcke's Reports. 
 English. Sometimes cited Cas. temp. Hardw., Lee's 
 Cas. temp. Hard., or Rep. temp. Hard. 
 
 Anne. Queen Anne (thus "1 Anne," denotes the 
 first year of the reign oC Queen Anne). 
 Annes. Ins. Annesly on Insurance.
 
 ABBREVIATION 
 
 20 
 
 ABBREVIATION 
 
 Anon. Anonymous. 
 
 Ans. Contr. or Anson, Cont. Anson on Contracts. 
 Anst. or Anstr. Anstruther's Reports, English Ex- 
 chequer. 
 
 Anth. Anthou's New York Nisi Prlus Reports;— 
 Anthony's Illinois Digest. 
 
 Anth. Abr. Anthon's Abridgment of Blackstone's 
 Commentaries. 
 Anth. III. Dig. Anthony's Illinois Digest 
 Anth. L. S. Anthon's Law Student. 
 Anth. N. P. Anthon's New York Nisi Prlus Re- 
 ports. 
 Anth. Free. Anthon's Precedents. 
 Anth. Shep. Anthon's edition of Sheppard's 
 Touchstone. 
 
 Ap. Justin. Apud Justinianum, or Justinian's In- 
 stitutes. 
 
 . Appeal; — Apposition; — Appendix; — Ap- 
 pleton's Reports, vols. 19, 20 Maine. 
 
 App. Cas. Appeal Cases, English Law Reports; — 
 Appeal Cases, United States;— Appeal Cases of the 
 different States;— Appeal Cases, District of Colum- 
 bia. 
 
 11891] App. Cas. Law Reports, Appeal Cases, 
 from 1S91 onward. 
 
 App. Cas. (D. C). Appeal Cases, District of Co- 
 lumbia. 
 
 App. Cas. Beng. Sevestre and Marshall's Bengal 
 Reports, India. 
 
 App. Cas. Rep. Bradwell's Illinois Appeal Court 
 Reports. 
 
 App. Ct. Rep. Bradwell's Illinois Appeal Court 
 Reports. 
 App. D. C. Appeal Cases, District of Columbia. 
 App. Div. Appellate Division, New York. 
 App. Ev. Appleton on Evidence. 
 App. Jur. Act 1876. Appellate Jurisdiction Act, 
 1876, 39 & 40 Vict. C 59. 
 App. N. Z. Appeal Reports, New Zealand. 
 App. Rep. Ont. Appeal Reports, Ontario. 
 Appe. Bre. Appendix to Ereese's Reports. 
 Appleton. Appleton's Reports, vols. 19, 20 Maine. 
 Appx. Appendix. 
 Ar. Arrete. 
 
 Ar. Rep. Argus Reports, Victoria. 
 Arabin. Decisions of Seargeant Arabin. 
 Arbuth. Arbuthnot's Select Criminal Cases, Ma- 
 dras. 
 Arch. Court of Arches, England. 
 Arch. P. L. Cas. Archbold's Abridgment of Poor 
 Law Cases. 
 
 Arch. Sum. Archbold's Summary of Laws of Eng- 
 land. 
 Archb. B. L. Archbold's Bankrupt Law. 
 Archb. C. P. Archbold's Civil Pleading. 
 Archb. Civil PI. Archbold's Civil Pleading. 
 Archb. Cr. L. Archbold's Criminal Law. 
 Archb. Cr: P. Archbold's Criminal Pleading. 
 Archb. Cr. P. by Pom. Archbold's Criminal Plead- 
 ing, by Pomeroy. 
 Archb. Crini. PI. Archbold's Criminal Pleading. 
 Archb. F. Archbold's Forms. 
 Archb. F. I. Archbold's Forms of Indictment. 
 Archb. J. P. Archbold's Justice of the Peace. 
 Archb. L. d T. Archbold's Landlord and Tenant. 
 Archb. Landl. d Ten. Archbold's Landlord and 
 Tenant. 
 Archb. N. P. Archbold's Nisi Prius Law. 
 Archb. New Pr. or Archb. N. Prac. Archbold's 
 New Practice. 
 Archb. Pr. Archbold's Practice. 
 Archb. Pr. by Ch. Archbold's Practice, by Chitty. 
 Archb. Pr. C. P. Archbold's Practice, Common 
 Pleas. 
 
 Archb. Pr. K. B. Archbold's Practice, King's 
 Bench. 
 
 Archb. Sum. Archbold's Summary of the Laws 
 of England. 
 Archer. Archer's Reports, Florida Reports, vol. 2. 
 Arg. Arguendo, in arguing, In the course of rea- 
 soning. 
 
 Arg. Fr. Merc. Law. Argles (Napoleon), Treatise 
 upon French Mercantile Law, etc. 
 
 Arg. Inst. Institution au Droit Frangais, par M. 
 Argou. 
 
 Arg. Rep. Reports printed In Melbourne Argus, 
 Australia. 
 Ariz. Arizona; — Arizona Reports. 
 Ark. Arkansas; — Arkansas Reports; — Arkley'i 
 Justiciary Reports, Scotland. 
 Ark. L. J. Arkansas Law Journal, Fort Smith. 
 Ark. Rev. Sts. Arkansas Revised Statutes. 
 Ariel, or Arkley. Arkley's Justiciary Reports, 
 Scotland. 
 
 Arms. Br. P. Cas. Armstrong's Breach of Privi- 
 lege Cases, New York. 
 
 Arms. Con. Elec. Armstrong's New York Contest- 
 ed Elections. 
 
 Arms. Elect. Cas. Armstrong's Cases of Contested 
 Elections, New York. 
 
 Arms. M. & O. or Arms. Mac. & Og. Armstrong, Ma- 
 cartney & Ogle's Irish Nisi Prius Reports. 
 
 Arms. Tr. Armstrong's Limerick Trials, Ireland. 
 
 Am. Arnold's English Common Pleas Reports;— 
 Arnot's Criminal Trials, Scotland. 
 
 Am. El. Cas. Arnold's Election Cases, English. 
 
 Am. Ins. Arnould on Marine Insurance. 
 
 Am. & II. or Am. d Hod. Arnold & Hodges's Eng- 
 lish Queen's Bench Reports. 
 
 Arn. d II- B. C. Arnold and Hodges's English Bail 
 Court Reports. 
 
 Am. & Hod. B. C. Arnold & Hodges's English Bail 
 Court Reports. 
 
 Am. & Hod. Pr. Cas. Arnold & Hodges's Practice 
 Cases, English. 
 
 Arnold. Arnold's Common Pleas Reports, Eng- 
 lish. 
 
 Arnot. Arnot's Criminal Cases, Scotland. 
 
 Arnot Cr. C. Arnot's Criminal Cases, Scotland. 
 
 Art. Article. 
 
 Artie. Cleri. Articles of the clergy. 
 
 Articuli sup. Chart. Articles upon the charters. 
 
 As7ie. Ashe's Tables to the Year Books (or to 
 Coke's Reports; — or to Dyer's Reports). 
 
 Ashl. Cas. Cont. Ashley's Cases on Contracts. 
 
 Ashm. Ashmead's Pennsylvania Reports. 
 
 Ashton. Ashton's Reports, vols. 9-12 Opinions of 
 the United States Attorneys General. 
 
 Ashurst MS. Ashurst's Paper Books, Lincoln's 
 Inn Library;— Ashurst's Manuscript Reports, print- 
 ed in vol. 2 Chitty. 
 
 Aso d Man. Inst. Aso and Manuel's Institutes of 
 the Laws of Spain. 
 
 Asp. Aspinall, English Admiralty. 
 
 Asp. Cas. or Asp. Rep. English Maritime Law 
 Cases, new series by Aspinall. 
 
 Asp. M. C. Aspinall's Maritime Cases. 
 
 Asp. Mar. L. Cas. Aspinall's Maritime Law Cases. 
 
 Ass. Book of Assizes;— Liber Assissarium, Part 5 
 of the Year Books. 
 
 Ass. de Jerus or Ass. Jerus. Assizes of Jerusalem. 
 
 Ast. Ent. Aston's Entries. 
 
 Atch. Atcheson's Reports, Navigation and Trade, 
 English. 
 
 Ath. Mar. Set. or Ath. Mar. Sett. Atherly on Mar- 
 riage Settlements. 
 
 Atk. Atkyn's English Chancery Reports. 
 
 Atk. Ch. Pr. Atkinson's Chancery Practice. 
 
 Atk. Con. Atkinson on Conveyancing. 
 
 Atk. P. T. Atkyn's Parliamentary Tracts. 
 
 Atk. Sher. Atkinson on Sheriffs. 
 
 Atk. Tit. or Atk. M. T. Atkinson on Marketable 
 Titles. 
 
 Atl. Atlantic Reporter. 
 
 Atl. Mo. Atlantic Monthly. 
 
 Atl. R. or Atl. Rep. Atlantic Reporter. 
 
 Ats. At suit of. 
 
 Atty. Attorney. 
 
 Atty. Gen. Attorney-General. 
 
 Atty. Gen. Op. Attorney-Generals' Opinions, Unit- 
 ed States. 
 
 Atty. Gen. Op. N. Y. Attorney-Generals' Opinions, 
 New York. 
 
 Atw. or Atwater. Atwater's Reports, vol. 1 Min- 
 nesota. 
 
 Auch. Auchinleck's Manuscript Cases, Scotch 
 Court of Session. 
 
 Auct. Reg. d L. Chron. Auction Register and Law 
 Chronicle. 
 
 Aul. Gel. Nodes Attica. Aulus Gelli-is, Noctes At- 
 tica.
 
 ABBREVIATION 
 
 21 
 
 ABBREVIATION 
 
 Aus. Jur. Australian Jurist, Melbourne. 
 
 Aunt. Austin's English County Court Cases;— 
 Australia. 
 
 Aust. Jur. or Aust. Juris. Austin's Province of 
 Jui ; pru : -nee. 
 
 Aust. Jur. Air. Austin's Lectures on Jurispru- 
 dence, abridged. 
 
 Aust. L. T. Australian Law Times. 
 
 •i (Ceylon). Austin's Ceylon Reports. 
 
 Austin C. C. or Austin C. C. It. Austin's English 
 County Court Reports. 
 
 Austr.Jur. Australian Jurist, Melbourne. 
 
 Austr. L. T. Australian Law Times, Melbourne. 
 
 Auth. Authentlca, In the authentic; that is, the 
 Summary of some of tl in the Civil Law 
 
 l i Id the Code u . r Buch a title. 
 
 Av. ilc II 11. I.mo. Avery and Hobb's Bankrupt 
 Law of the United Sti 
 
 Ayck. Ch. P. Ayckbourn's Chancery Forms. 
 
 Ayck. Ch. Pr. Ayckbourn's Chancery Practice. 
 
 Ayl. Pan. See Ayh 
 
 Ayl. Pand. See Ayliffe. 
 
 Ayl. Par. See A : 
 
 Ayliffe. Ayliffe's Pandects;— Ayliffe's Parergon 
 Juris Canonici Angelicani. 
 
 Ayliffe Par erg. See Ayliffe. 
 
 Azuni Mar. Law. Azuni on Maritime Law. 
 
 B. Bancus; the Common Bench; the back of a 
 leaf; Book. " 
 
 B.B. Bail Bond; Bayley on Bills. 
 
 B. Bar. Bench and Bar, Chicago. 
 
 B. C. Bail Court; — Bankruptcy Cases; — Bell's 
 Commentaries on the Laws of Scotland. 
 
 B.C.C. Bail Court Reports (Saunders 4 Cole);— 
 Bail Court Cases (Lowndes 4 Maxwell);— Brown's 
 Chancery Cases. 
 
 B. Ch. Barbour's Chancery Reports, New York. 
 
 B. C. R. or B. C. Rep. Saunders & Cole's Bail 
 Court Reports, English;— British Columbia Reports. 
 
 B. D. d 0. Blackham, Dundas & Osborne's Nisi 
 Prius Reports, Ireland. 
 
 B. Ecc. Law. Burns's Ecclesiastical Law. 
 
 B. Just. Burns's Justice. 
 
 B. L. R. Bengal Law Reports. 
 
 B. L. T. Baltimore Law Transcript. 
 
 B. 31. Burrow's Reports tempore Mansfield; — Ben 
 Monroe's Reports, Kentucky;— Moore's Reports, Eng- 
 lish. 
 
 B. 3Ion. Ben Monroe's Reports, Kentucky. 
 
 B. 31oore. Moore's Reports, English. 
 
 B. N. C. Bingham's New Cases, English Common 
 Pleas;— Brooke's New Cases, English King's Bench: 
 — Busbee's North Carolina Law Reports. 
 
 B. N. P. Buller's Nisi Prius. 
 
 B. P. B. Buller's Paper Book, Lincoln's Inn Li- 
 brary. See A. P. B. 
 
 B. P. C. Brown's Parliamentary Cases. 
 
 B. P. L. Cas. Bott's Poor Law Cases. 
 
 B. P. N. R. Bosanquet & Puller's New Reports, 
 English Common Pleas. 
 
 B. P. R. Brown's Parliamentary Reports. 
 
 B. R. American Law Times Bankruptcy Reports; 
 — Bancus Regis; the King's Bench; — Bankruptcy 
 Reports; — Bankruptcy Register, New York;— Na- 
 tional Bankruptcy Register Reports. 
 
 B. K. Act. Booth's Heal Action. 
 
 B. Reg. Bankruptcy Register, New York. 
 
 B. R. H. Cases in King's Bench, temp. Hard- 
 uirkc. 
 
 B. S. Upper Bench. 
 
 B. Tr. Bishop's Trial. 
 
 B. W. C. C. Butterworth's Workmen's Compen- 
 sation Cases (Br. & Col.). 
 
 B. d A. Barnewall 4 Adolphus's English King's 
 Bench Reports;— Barnewall 4 Alderson's English 
 King's Bench Reports;— Baron & Arnold's English 
 Election Cases;— Baron 4 Austin's English Election 
 Cases; — Banning & Arden's Patent Cases. 
 
 B. d Ad. or Adol. Barnewall 4 Adolphus's English 
 King's Bench Reports. 
 
 B. d Aid. Barnewall 4 Alderson's English King's 
 Bench Reports. 
 
 B. & Am. Barron & Arnold's Election Cases. 
 
 B. d Aust. Barron and Austin's Election Cases, 
 English. 
 
 B. d B. Broderip & Bingham's English Common 
 
 Pleas Reports ;— Ball 4 Eoatty'u Irish Chancery Re- 
 ports;— Bowler 4 Bowers, vols. 2, S United Statev 
 Comptroller's Decisions. 
 
 B. d Bar. The Bench and Bar, Chicago. 
 
 B. d C. Barnewall & Cresswell's English King's 
 Bench Reports. 
 
 B. d D. Benloe 4 Dallson, English. 
 
 B. d F. Broderip 4 Fremantle's English Ecclesi- 
 astical Reports. 
 
 B. d H. Blatchford 4 Howland's United States 
 District Court Reports. 
 
 B. d H. Dig. Bennett 4 Heard's Massachusetts 
 
 B. d H. Lead. Cas. Bennett 4 Heard's Leading 
 Cases on Criminal Law. 
 
 B. d I. Bankruptcy and Insolvency Cases. 
 
 ... Browning 4 Lushington's Reports, Eng- 
 .■liniralty. 
 '.. Prcc. Bullen 4 Leake's Precedents of 
 ii g. 
 
 B. d 31. or B. d Macn. Browne 4 Macnamara's Re- 
 ports, English. 
 
 B. d P. Bosanquet 4 Puller's English Common 
 Pleas Reports. 
 
 B. d P. N. R. Bosanquet 4 Puller's New Reports, 
 English. 
 
 B. d S. Best 4 Smith's English Queen's Bench 
 Reports. 
 
 B. d V. Beling 4 Vanderstraaten's Reports, Cey- 
 lon. 
 
 Ba. d Be. Ball & Beatty's Irish Chancery Reports. 
 
 Bab. Auc. Babington on Auctions. 
 
 Bab. Set-off. Babington on Set-off. 
 
 Bac. Abr. Bacon's Abridgment. 
 
 Bac. Aph. or Bac. Aphorisms. Bacon's (Sir Fran- 
 cis) Aphorisms. 
 
 Bac. Comp. Arb. Bacon's Complete Arbitration. 
 
 Bac. Dig. Bacon's Georgia Digest. 
 
 Bac. El. Bacon's Elements of the Common Law. 
 
 Bac. Gov. Bacon on Government. 
 
 Bac. Ir. Bacon (Sir I Law Tracts. 
 
 Bac. Law Tr. Bacon's Law Tracts. 
 
 Bac. Lease. Bacon on Leases and Terms of Years. 
 
 Bac. Lib. Reg. Bacon's Liber Regis, vel Thesau- 
 rus Rerutn Ecclesiasticarum. 
 
 Bac. 31. or Bac. Max. Bacon's Maxims. 
 
 Bac. Read. Uses. Bacon (Sir Francis), Reading 
 upon the Statute of Uses. 
 
 Bac. St. Uses or Bac. U. Bacon (Sir Fr 
 Reading upon the Statute of Uses. 
 
 Bac. Works. Bacon's (Sir Francis), Works. 
 
 Bach. Bach's Reports, vols. 19-21 Montana. 
 
 Bach. Man. Bache's Manual of a Pennsylvania 
 Justice of the Peace. 
 
 Bacon. Bacon's Abridgment; — Bacon's Aphorisms; 
 —Bacon's Complete Arbitrator;— Bacon's Elements 
 of the Common Law;— Bacon on Government; — Ba- 
 con's Law Tracts; — Bacon on Leases and Terms of 
 Years;— Bacon's Maxims;— Bacon on Uses. 
 
 Bag. C. Pr. Bagley's Chamber Practice. 
 
 Bage. Const. Bagehot on the English Constitu- 
 tion. 
 
 Bagl. Bagley's Reports, vols. 16-19 California. 
 
 Bagl.dH. Bagley 4 Harmen's Reports, Cali- 
 fornia. 
 
 Bail. Bailey's Law Reports, South Carolina. 
 
 Bail Ct. Cas. Lowndes 4 Maxwell's English Ball 
 Court Cases. 
 
 Bail Ct. Rep. Saunders 4 Cole's English Bail 
 Court Reports;— Lowndes 4 Maxwell's English Bail 
 Court Cases. 
 
 Sail. Dig. Bailey's North Carolina Digest. 
 
 Bail. Eq. Bailey's Equity Reports, South Caro- 
 lina. 
 
 Bailey. Bailey's Law Reports, South Carolina. 
 ,7 Ch. or Bailey Eq. Bailey's Equity Reports, 
 South Carolina. 
 
 Baill. Dig. Baillie's Digest of Mohammedan Law. 
 Ms it' M. or Bainb. 3Iincs. Bainbridge on 
 Mines and Minerals. 
 
 Bak. Bur. Baker's Law Relating to Burials. 
 
 Buk. Corp. Baker on Corporations. 
 
 Baker, Quar. Baker's Law of Quarantine. 
 
 Bald. Baldwin's United States Circuit Court Re- 
 ports ;— Baldus (<' >r on the Code) ;— Bald- 
 asseroni (on Maritime Law).
 
 ABBREVIATION 
 
 22 
 
 ABBREVIATION 
 
 Bald. App. 11 Pet. Baldwin's Appendix to 11 Pe- 
 ters. 
 
 Bald. C. C. Baldwin's United States Circuit Court 
 Reports. 
 
 Bald. Con. or Bald. C. V. Baldwin on the Consti- 
 tution. 
 
 Baldw. Dig. Baldwin's Connecticut Digest. 
 
 Balf. Balfour's Practice of the Law of Scotland. 
 
 Ball Cas. Tort. Ball's Cases on Torts. 
 
 Ball. Lim. Ballantine on Limitations. 
 
 Ball d B. Ball & Beatty's Reports, Irish Chan- 
 cery. 
 
 Bait. L. Tr. Baltimore Law Transcript. 
 
 Banc. Sup. Bancus Superior, or Upper Bench. 
 
 Bank, and Ins. R. Bankruptcy and Insolvency Re- 
 ports, English. 
 
 Bank. Ct. Rep. Bankrupt Court Reports, New 
 York;— The American Law Times Bankruptcy Re- 
 ports are sometimes thus cited. 
 
 Bank. I. or Bank Inst. Bankter's Institutes of 
 Scottish Law. 
 
 Bank. Reg. National Bankruptcy Register, New 
 York. 
 
 Bank. Rep. American Law Times Bankruptcy Re- 
 ports. 
 
 Bank, d Ins. or Bank, d Ins. R. Bankruptcy and 
 Insolvency Reports, English. 
 
 Banker's Law J. Banker's Law Journal. 
 
 Banker's Mag. Banker's Magazine, New York. 
 
 Banker's Mag. (Lon.). Banker's Magazine, Lon- 
 don. 
 
 Banks. Banks' Reports, vols. 1-5 Kansas. 
 
 Bann. Bannister's Reports, English Common 
 Pleas. 
 
 Bann. Br. Bannister's edition of O. Bridgman's 
 English Common Pleas Reports. 
 
 Bann. Lim. Banning on Limitation of Action. 
 
 Bann. & A. or Bann. & A. Pat. Ca. Banning and 
 Arden's Patent Cases. 
 
 Bar. Barnardiston's English King's Bench Re- 
 ports; — Barnardiston's Chancery; — Bar Reports in 
 all the Courts, English; — Barbour's Supreme Court 
 Reports, New York;— Barrows's Reports, vol. 18 
 Rhode Island. 
 
 Bar. Ch. or Chy. Barnardiston's English Chan- 
 cery Reports. / 
 
 Bar Ex. Jour. Bar Examination Journal, London. 
 
 Bar. Mag. Barrington's Magna Charta. 
 
 Bar. N. Barnes's Notes, English Common Pleas 
 Reports. 
 
 Bar. Obs. St. Barrington's Observations upon the 
 Statutes from Magna Charta to 21 James I. 
 
 Bar. & Ad. Barnewall & Adolphus's English 
 King's Bench Reports. 
 
 Bar. & Al. Barnewall & Alderson's English King's 
 Bench Reports. 
 
 Bar. & Am. Barron & Arnold's English Election 
 Cases. 
 
 Bar. & Aust. or Au. Barron & Austin's English 
 Election Cases. 
 
 Bar. d Cr. Barnewall & Cresswell's English 
 King's Bench Reports. 
 
 Barb. Barbour's Supreme Court Reports, New 
 York; — Barber's Reports, vols. 14-24 Arkansas. 
 
 Barb. Abs. Barbour's Abstracts of Chancellor's 
 Decisions, New York. 
 
 Barb. App. Dig. Barber's Digest, New York. 
 
 Barb. Ark. Barber's Reports, vols. 14-24 Arkansas. 
 
 Barb. Ch. Barbour's Chancery Reports, New 
 York. 
 
 Barb. Ch. Pr. Barbour's Chancery Practice (Text 
 Book). 
 
 Barb. Cr. P. Barbour's Criminal Pleadings. 
 Barb. Dig. Barber's Digest of Kentucky. 
 Barb. Grot. Grotius on War and Peace, Notes by 
 Barbeyrac. 
 Barb, on Set-off. Barbour on Set-off. 
 Barb. Puff. Puffendorf's Law of Nature and Na- 
 tions, Notes by Barbeyrac. 
 
 Barb. S. C. Barbour's Supreme Court Reports, 
 New York. 
 
 Barbe. or Barber. Barber's Reports, Arkansas. 
 See Barb. Ark. 
 Bare. Dig. Barclay's Missouri Digest. 
 Barl. Elect. Cas. Bartlett's Congressional Elec- 
 tion Cases. 
 
 Barn. Barnardiston's English King's Bench Re- 
 ports 1 ;— Barnes's English Common Plens Reports;— 
 Barnfleld's Reports, vols. 19-20, Rhode Island. 
 
 Lorn. Ch. Barnardiston's Chancery Reports, Eng- 
 lish. 
 
 Barn. No. Barnes's Note of Cases, English Com- 
 mon Pleas. 
 
 Barn. Sh. Barnes's Sheriff. 
 
 Barnewall & Alderson's English King's 
 Bench Reports. 
 
 Barn. & Ad. or Barn, d Adol. Barnewall & Adol- 
 phus' English King's Bench Reports. 
 
 Barn, d Aid. Barnewall & Alderson's English 
 King's Bench Reports. 
 
 Barn, d C. or Barn, d Cr. or Barn, d Cress. 
 Barnewall & Cresswell's English King's Bench Re- 
 ports. 
 
 Barnard. Ch. Barnardiston's Chancery Reports. 
 
 Barnard. K. B. Barnardiston's King's Bench Re- 
 ports. 
 
 Barnes. Barnes's Practice Cases, English. 
 
 Barnes N. C. Barnes's Notes of Cases in Common 
 Pleas. 
 
 Barnet. Barnet's Reports, vols. 27-29 English 
 Central Criminal Courts Reports. 
 
 Barnf. <£ S. Barnfield and Stiness's Reports, vol. 
 20. Rhode Island. 
 
 Barnw. Dig. Barnwall's Digest of the Year Books. 
 
 Barr. Barr's Reports, vols. 1-10 Pennsylvania 
 State;— Barrows's Reports, vol. 18 Rhode Island;— 
 Barr Reports, in all the courts, English. 
 
 Barr. Ob. St. or Barr. St. Barrington's Observa- 
 tions upon the Statutes from Magna Charta to 21 
 James I. 
 
 Barr. Ten. Barry on Tenures. 
 
 it- Am. Barron & Arnold's Election Cases, 
 English. 
 
 Barr. d Aus. Barron & Austin's Election Cases, 
 English. 
 
 Barring. Obs. St. or Barring. St. Barrington's Ob- 
 servations upon the Statutes from Magna Charta 
 to 21 James I. 
 
 Barron Mir. Barron's Mirror of Parliament. 
 
 Barroivs. Barrows's Reports, vol. 18 Rhode Island. 
 
 Barry Ch. Jur. Barry's Chancery Jurisdiction. 
 
 Barry Conv. Barry on Conveyancing. 
 
 Bart. Conv. Barton's Elements of Conveyancing. 
 
 Bart. El. Cas. Bartlett's Congressional Election 
 Cases. 
 
 Bart. Eq. Barton's Suit in Equity. 
 
 Bart. Prec. Barton's Precedents of Conveyancing. 
 
 Bat. Dig. Battle's Digest, North Carolina. 
 
 Bat. Sp. Per. Batten on Specific Performance. 
 
 Batein. Ag. Bateman on Agency. 
 
 Batem. Auct. Bateman on the Law of Auctions. 
 
 Batem. Comm. L. Bateman's Commercial Law. 
 
 Batem. Const. L. Bateman's Constitutional Law. 
 
 Batem. Ex. L. Bateman's Excise Laws. 
 
 Bates Ch. Bates's Chancery Reports, Delaware. 
 
 Bates Dig. Bates's Digest, Ohio. 
 
 Batt. or Batty. Batty's Irish King's Bench Re- 
 ports. 
 
 Baum. Baum on Rectors, Church Wardens, and 
 Vestrymen. 
 
 Box. or Baxt. Baxter's Reports, vols. 60-68 Ten- 
 nessee. 
 
 Bay. Bay's South Carolina Reports;— Bay's Re- 
 ports, vols. 1, 2, and 5-8 Missouri. 
 
 Bay (Mo.). Bay's Reports, Missouri. 
 
 Bayl. Bill. Bayley on Bills. 
 
 Bayl. Ch. Pr. Bayley's Chancery Practice. 
 
 Bea. C. E. Beame's Costs in Equity. 
 
 Bea. Eq. PI. Beame's Equity Pleading. 
 
 Bea. Ne Exeat. Beame on the Writ of Ne Exeat. 
 
 Bea. Ord. Beame's Orders in Chancery. 
 
 Bea. PI. Eq. Beame's Pleas in Equity. 
 
 Beach. Rec. Beach on the Law of Receivers. 
 
 Beas. Beasley's Reports, New Jersey Equity. 
 
 Beat, or Beatt. or Beatty. Beatty's Irish Chancery 
 Reports. 
 
 Beaum. B. of S. Beaumont on Bills of Sale. 
 
 Beaum. Ins. Beaumont on Insurance. 
 Beav. Beavan's Chancery Reports, English Rolls 
 Court. 
 
 Beav. R. d C. Cas. English Railway and Canal 
 Cases, by Beavan and others.
 
 ABBREVIATION 
 
 23 
 
 ABBREVIATION 
 
 Beav. d Wal. Ry. Cas. Beavan & Walford's Rail- 
 way and Canal Cases, En 
 
 Beaw. or Beato. Lex Merc, Beawes's Lex Merca- 
 torla. 
 
 Beawes. Beawes's Lex Mercatorla. 
 
 Becc. Cr. Beccaria on Crimes and Punishments. 
 
 Beck. Bock's Reports, vols. 12-16 Colorado; also 
 vol. 1 Colorado Court of Appeals. 
 
 Beck, Med. Jur. or Beck's Med. Jur. Beck's Medi- 
 cal Jurisprudence. 
 
 Bedell. Bedell's Reports, vols. 1C3-191 New York. 
 
 Bee. Bee's United States District Court Reports. 
 
 Bee Adm. Bee's Admiralty. An Appendix to Bee's 
 District Court Reports. 
 
 Bee C. C. R. Bee'B Crown Cases Reserved, Eng- 
 lish. 
 
 Beebe Cit. Beebe's Ohio Citations. 
 
 Bel. Bellewe's English King's Bench Reports 
 temp. Richard II ;— Bellasis's Bombay R , 
 Beling's Ceylon Reports;— Bellinger's Reports, vols. 
 4-8 Oregon. 
 
 Beling. Beling's Ceylon Reports. 
 
 Belimj d Van. (Ceylon). Beling & Vander Straa- 
 Ien's Ceylon Reports. 
 
 Bell. Bell's Dictionary and Digest of the Laws of 
 Scotland; — Bell's English Crown Cases Reserved;— 
 Bell's Scotch Appeal Cases;— Bell's Scotch Session 
 Cases;— Bell's Calcutta Reports, India;— Bellewe's 
 English King's Bench Reports temp. Richard II ;— 
 Brooke's New Cases, by Bellewe;— Bellinger's Re- 
 ports, vols. 4-8 Oregon; — Bellasis's Bombay Reports. 
 
 Bell Ap. Ca. or Bell Ap. Cas. or Bell App. Cas. 
 Bell's Scotch Appeals. 
 
 Bell Cas. Bell's Cases, Scotch Court of Session. 
 
 Bell. Cas. t. H. VIII. Brooke's New Cases (col- 
 lected by Bellewe). 
 
 Bell. Cas. t. R. II. Bellewe's English King's Bench 
 Reports (time of Richard II). 
 
 BellC.C. Bell's English Crown Cases Reserved; 
 — Bellasis's Civil Cases, Bombay ;— Bellasis's Crim- 
 inal Cases, Bombay. 
 
 Bell. C. Cas. Bellasis's Civil Cases, Bombay ; Bel- 
 lasis's Criminal Cases, Bombay. 
 
 Bell C. H. C. Bell's Reports, Calcutta High Court. 
 
 Bell Com. or Bell Comm. Bell's Commentaries on 
 the Laws of Scotland. 
 
 Bell Cr. C. Bell's English Crown Cases;— Beller's 
 Criminal Cases, Bombay. 
 
 Bell C. T. Bell on Completing Titles. 
 
 Bell. Del. U. L. Beller's Delineation of Universal 
 Law. 
 
 Bell, Diet. Bell's Dictionary and Digest of the 
 Laws of Scotland. 
 
 Bell Diet. Dec. Bell's Dictionary of Decisions, 
 Court of Session, Scotland. 
 
 Bell El. L. Bell's Election Law of Scotland. 
 
 Bell fol. Bell's folio Reports, Scotch Court of 
 Session. 
 
 Bell II. C. or Bell H. C. Cal. Bell's Reports, High 
 Court of Calcutta. 
 
 Bell H. L. or Bell, H. L. Sc. Bell's House of Lord's 
 Cases, Scotch Appeals. 
 
 Bell H. d W. Bell on Husband and Wife. 
 
 Bell lllus. Bell's Illustration of Principles. 
 
 Bell (In.). Bell's Reports, India. 
 
 Bell L. Bell on Leases. 
 
 Bell Med. L. J. Bell's Medico Legal Journal. 
 
 Bell Notes. Bell's Supplemental Notes to Hume 
 on Crimes. 
 
 Bell Oct. or 8vo. Bell's octavo Reports, Scotch 
 Court of Session. 
 
 Bell. (Or.). Bellinger's Reports, Oregon. 
 
 Bell P.O. Bell's Cases in Parliament, Scotch Ap- 
 peals. 
 
 Bell Prin. Bell's Principles of the Law of Scot- 
 land. 
 
 Bell Put. Mar. Bell's Putative Marriage Cases, 
 Scotland. 
 
 Bell S. Bell on Sales. 
 
 Bell Sc. App. Bell's Appeals to House of Lords 
 from Scotland. 
 
 Bell Sc. Dig. Bell's Scottish Digest. 
 
 Bell Ses. Cas. or Bell Sess. Cas. Bell's Cases In the 
 Scotch Court of Session. 
 
 Bell Styles. Bell's System of the Forms of Deeds. 
 
 Bell T.D. Bell on the Testing of Deeds. 
 
 Bellas. Bellasis's Criminal (or Civil) Cases, Bom- 
 bay. 
 
 Bellewe. Bellewe's English King's Bench Reports. 
 re Cas. Bellewe's Cases, temp. Henry 
 VIII.; Brooke's New Cases; Petit Brooke. 
 
 Bellewe t. H. VIII. Brooke's New Cases (collected 
 • •we). 
 ger. Bellinger's Reports, vols. 4-8 Or 
 
 Bellinyh. Tr. Report of the Belllngham Ti 
 
 Belt Bro. Belt's edition of Brown's Chancery Re- 
 ports. 
 
 Belt Sup. or Belt Sup. Vcs. Belt's Supplement to 
 Vesey Senior's English Chancery Rep 
 
 Bi.lt Ves. Sen. Belt's edition of Vesey Senior's 
 
 Benedict's United States District Court Re- 
 ports. 
 
 Ben. Adm. Benedict's Admiralty Practice. 
 
 Ben. Av. Benecke on Average. 
 
 Ben. F. I. Cas. Bennett's Fire Insurance Cases. 
 
 Ben. Ins. Cas. Bennett's Insurance Ca 
 
 Ben. Just. Benedict on Justices of the Peace. 
 
 Ben Mon. Ben Monroe's Reports, Kentucky. 
 
 Ben. d Dal. Benloe & Dalison's English Common 
 Pleas Reports. 
 
 Ben. d H. L. C. Bennett & Heard's Leading Crim- 
 inal Cases. 
 
 Ben. d 8. Dig. Benjamin & Slidell's Louisiana Di- 
 gest 
 
 Bench d B. Bench and Bar (periodical), Chicago. 
 
 Bendl. or Bendloe. Bendloe (see Benl.) ;— Bend- 
 loe's or New Benloe's Reports, English Common 
 Pleas, Edition of 1661. 
 
 Bened. Benedict's United States District Court 
 Reports. 
 
 Benet Ct. if. Benet on Military La W and Courts 
 Martial. 
 
 Beng. L. R. Bengal Law Reports, India. 
 
 Beng. S.D.ot Beng.S.D. A. Bengal Sudder De- 
 wany Adawlut Reports, India. 
 
 Benj. Benjamin. New York Annotated Cases. 
 
 Benj. Chalm. Bills d N. Benjamin's Chalmer's 
 Bills and Notes. 
 
 Benj. Sales. Benjamin on Sales. 
 
 Benl. Benloe's or Bendloe's English King's Bench 
 Reports ; Benloe's English Common Pleas Reports. 
 
 Benl. in Ashe. Benloe at the end of Ashe's Tables. 
 
 Benl. in Keil. Benloe or Bendloe in Keilway's Re- 
 ports. 
 
 Benl. New. Benloe's Reports, English Common 
 Pleas, Ed. of 1661 ;— Benloe's Reports, English King's 
 Bench. 
 
 Bt nl. Old. Benloe's Reports, English Common 
 Pleas, of Benloe & Dalison, Ed. of 1689. 
 
 Benl. d Dal. Benloe & Dalison's Common Pleas 
 Reports. 
 
 Benn. Cal. Bennett's Reports, vol. 1 California. 
 
 Benn. (Dak.). Bennett's Dakota Reports. 
 
 Benn. Diss. Bennett's Dissertation on the Pro- 
 ceedings in the Master's Office in the Court of 
 Chancery of England, sometimes cited Benn. Prac. 
 
 Benn. F. I. Cas. or Benn. Fire Ins. Cas. Bennett's 
 Fire Insurance Cases. 
 
 Benn. (Mo.). Bennett's Reports, Missouri. 
 
 Benn. Prac. See Benn. Diss. 
 
 Benn. d H. Cr. Cas. Bennett & Heard's Leading 
 Criminal Cases. 
 
 Benn. d H. Dig. Bennett & Heard's Massachusetts 
 Digest. 
 
 Benne. Reporter of vol. 7, Modern Ri | 
 
 Bennett. Bennett's R nla; — 
 
 Bennett's Reports, vol. 1 Dakota; — Beuncti's Re- 
 ports, vols. 16-21 Missouri. 
 
 Bennett M. See Hcnn. Diss. 
 
 Bent. Bentley's Reports, Irish Chancery. 
 
 Benth. Ev or Bcnth. Jud. Ev. Bentham on Ration- 
 ale of Judicial Evidence. 
 
 Benth. Leg. Bentham on Theory of Legislation. 
 
 Bentl. Atty.-Gen. Bentley's Reports, vols. 13-19 
 Attorneys-General's Opinions. 
 
 Beor. Queensland Law Reports. 
 
 Ber. Berton's New Brunswick Reports. 
 
 Bern. Bernard's Church Cases, Ireland. 

 
 ABBREVIATION 
 
 24 
 
 ABBREVIATION 
 
 Berry. Berry's Reports, vols. 1-28 Missouri Court 
 of Appeals. 
 
 Bert. Berton's Reports, New Brunswick. 
 
 Besson Prec. Besson's New Jersey Precedents. 
 'v. Best on Evidence. 
 
 Best Pres. Best on Presumptions. 
 
 Best & S. or Best & Sin. Best & Smith's English 
 Queen's Bench Reports. 
 
 Betta Adm. Pr. Betts's Admiralty Practice. 
 
 Bett's Dec. Blatchford and Howland's United 
 States District Court Reports ;— Olcott's United 
 States District Court Repoi 
 
 Bev. (Ceylon). Beven's Ceylon Reports. 
 
 Bev. Horn. Bevill on Homicide. 
 
 Bev. Pat. Bevill's Patent Cases, English. 
 
 Bev. & M. Bevin &. Mill's Reports, Ceylon. 
 
 Beven. Beven's Ceylon Reports. 
 
 Bibb. Bibb's Reports, Kentucky. 
 
 Bick. or Bick. & H. or Bick. <£• II awl. Bicknell & 
 Hav.ley's Reports, vols. 10-20 Nevada. 
 
 Bick. (In.). Bieknell's Reports, India. 
 
 Bick. & H. or Bick. & Bawl. (Nov.). Bicknell & 
 Hawley's Nevada Reports. 
 
 Biddle Retro. Leg. Biddle on Retrospective Leg- 
 islation. 
 
 Big. Bignell's Reports, India. 
 
 Big. Bills & N. Bigelow on Bills and Notes. 
 
 Big. Cos. Bigelow's Cases, William I. to Rich- 
 ard I. 
 
 Big. Eq. Bigelow on Equity. 
 
 Big. Estop. Bigelow on Estoppel. 
 
 Big. Frauds. Bigelow on Frauds. 
 
 Big. Jarm. Wills. Bigelow's Edition of Jarman on 
 Wills. ' 
 
 Big. Lead. Cas. Bigelow's Leading Cases on Torts. 
 
 Big. L. I. Cas. or Big. L. & A. Ins. Cas. Bigelow's 
 Life and Accident Insurance Cases. 
 
 Big. Ov. Cas. or Big. Over-ruled Cas. Bigelow's 
 Over-ruled Cases. 
 
 Big. Plac. or Big. Placita. Bigelow's Placita An- 
 glo-Normannica. 
 
 Bigelow, Estop. Bigelow on Estoppel. 
 
 Bigg Cr. L. Bigg's Criminal Law. 
 
 Bign. Bignell's Indian Reports. 
 
 Bilb. Ord. Ordinances of Bilboa. 
 
 Bill. Aw. Billing on the Law of Awards. 
 
 Bin. Binney's Pennsylvania Reports. 
 
 Bin. Dig. Binmore's Digest, Michigan. 
 
 Bing. Bingham's Reports, English Common Pleas. 
 
 Bing. Des. Bingham on Descent. 
 
 Bing. Inf. Eingham on Infancy. 
 
 Bing. Judg. Bingham on Judgments and Execu- 
 tions. 
 
 Bing. L. & T. Bingham on Landlord and Tenant. 
 
 Bing. N. C. Bingham's New Cases, English Com- 
 mon Pleas. 
 
 Bing. & Colv. Rents. Bingham & Colvin on Rents, 
 etc. 
 
 Binn. Binney's Pennsylvania Reports. 
 
 Binn Jus. Biun's Pennsylvania Justice. 
 
 Bird Conv. Bird on Conveyancing. 
 
 BirdL. &T. Bird on Landlord and Tenant. 
 
 Bird Sol. Pr. Bird's Solution of Precedents of Set- 
 tlements. 
 
 Birds. St. Birdseye's Statutes, New York. 
 
 Biret do I'Abs. Traite de l'Absence et de ses effets, 
 par M. Biret. 
 
 Bird, Vocab. Biret, Vocabulaire des Cinq Codes, 
 ou definitions simplifies des termes de droit et de 
 jurisprudence exprimes dan ces codes. 
 
 Bis. Bissell's United States Circuit Court Re- 
 ports. 
 
 Bish. Contr. Bishop on Contracts. 
 
 Bish. Cr. L. or Bish. Cr. Law. Bishop on Criminal 
 Law. ' 
 
 Bish. Crim. Proc. or Bish. Cr. Proc. Bishop on 
 Criminal Procedure. 
 
 Bish. Mar. & D. or Bish. Mar. & Div. Bishop on 
 Marriage and Divorce. 
 
 Bish. Mar. Worn. Bishop on Married Women. 
 
 Bish. St. Cr. or Bish. St. Crimes. Bishop on Statu- 
 tory Crimes. 
 
 Bishop Dig. Bishop's Digest, Montana. 
 
 Bisp. Eq. or Bisph. Eq. Bispham's Equity. 
 
 Biss. or Bia. Bissell's United States Circuit Court 
 Reports. 
 
 Biss. Est. or Biss. Life Est. Bissett on Estates for 
 Life. 
 
 Biss. Part. Bissett on Partnership. 
 
 Bitt. or Bitt. Chamb. Rep. Bittleson's Chamber 
 Reports, England. 
 
 Bitt. Pr. Cas. Bittleston's English Practice Cases. 
 
 Bitt. W. & P. Bittleson, Wise & Parnell's Reports, 
 vols. 2, 3 New Practice Cases. 
 
 Bk. Black's United States Supreme Court Re- 
 ports. 
 
 Bk. Judg. Book of Judgments by Townsend. 
 
 Bl. Black's United States Supreme Court Re- 
 ports ;— Blatchford's United States Circuit Court 
 Reports ;— Blackford's Indiana Reports ;— Henry 
 Blackstone's English Common Pleas Reports ;— W. 
 Blackstone's English King's Bench Reports ;— Black- 
 stone. 
 
 Bl. C. C. Blatchford's United States Circuit Court 
 Reports. 
 
 Bl. Com. or Bl. Comm. Blackstone's Commentaries. 
 
 Bl. D. Blount's Law Dictionary. 
 
 Bl. Diet. Black's Dictionary. 
 
 Bl. D. & O. Blackham, Dundas & Osborne's Irish 
 Nisi Prius Reports. 
 
 Bl. H. Henry Blackstone's English Common Pleas 
 Reports. 
 
 Bl. Judgm. Black on Judgments. 
 
 Bl. Law Tracts. Blackstone's Law Tracts. 
 
 Bl. L. D. Blount's Law Dictionary. 
 
 Bl. L. T. Blackstone's Law Tracts. 
 
 Bl. Pr. Ca. or Bl. Prise or Bl. Pr. Cas. Blatchford's 
 Prize Cases. 
 
 Bl. R. or Bl. W. Sir William Blackstone's English 
 King's Bench Reports. 
 
 Bl.&H. Blatchford & Howland's United States 
 District Court Reports; — Blake & Hedges's Reports, 
 vols. 2-3 Montana. 
 
 Bl. & How. Blatchford & Howland's Admiralty 
 Reports, U. S. Dist. Court, Southern Dist. of N. Y. 
 
 Bl. d W. Mines. Blanchard & Weeks's Leading 
 Cases on Mines. 
 
 Bla. Ch. Bland's Maryland Chancery Reports. 
 
 Bla. Com. Blackstone's Commentaries. 
 
 Bla. H. Henry Blackstone's English Common 
 Pleas Reports. 
 
 Bla. R. or Bla. W. Sir William Blackstone's Re- 
 ports English King's Bench. 
 
 Black. Black's United States Supreme Court Re- 
 ports; — Black's Reports, vols. 30-53 Indiana;— H. 
 Blackstone's English Common Pleas Reports;— W. 
 Blackstone's English King's Bench Reports;— Black- 
 ford's Indiana Reports. 
 
 Black. Cond. Rep. Blackwell's Condensed Illinois 
 Reports. 
 
 Black, Const. Law. Black on Constitutional Law. 
 
 Black, Const. Prohib. Black's Constitutional Pro- 
 hibitions. 
 
 Black. D. & O. Blackham, Dundas & Osborne's 
 Irish Nisi Prius Reports. 
 
 Black. H. Henry Blackstone's English Common 
 Pleas Reports. 
 
 Black. (Ind.). Black's Reports, Indiana Reports, 
 vols. 30-53. 
 
 Black, Interp. Laws. Black on Interpretation of 
 Laws. 
 
 Black, Intox. Liq. Black on Intoxicating Liquors. 
 
 Black, Judgm. Black on Judgments. 
 
 Black. Jus. Blackerby's Justices' Cases. 
 
 Black. R. Black's United States Supreme Court 
 Reports;— W. Blackstone's English King's Bench 
 Reports. See Black. 
 
 Black. S. Blackburn on Sales. 
 
 Black Ship. Ca. Black's Decisions In Shipping 
 Cases. 
 
 Black, Tax Titles or Black T. T Black on Tax Ti- 
 tles. 
 
 Black. W. W. Blackstone's English King's Bench 
 Reports. 
 
 Blackf. Blackford's Reports, Indiana. 
 
 Blackst. Com. Blackstone's Commentaries. 
 
 Blackst. R. Wm. Blackstone's Reports, English. 
 
 Blackw. Cond. Blackwell's Condensed Reports, 
 Illinois.
 
 ABBREVIATION 
 
 25 
 
 ABBREVIATION 
 
 Blak. Ch. Pr. Blake's Chancery Practice, New 
 York. 
 Blake. Blake's Reports, vol. 1 Montana. 
 Blake <£ H. Blake and Hedges's Reports, vols. 2-3 
 Montana. 
 
 Blan. Annu. Blaney on Life Annuities. 
 
 Blan. Lim. Blansbard on Limitations. 
 
 Blanc. 4 W. L. C. Blanchard & Week's Leading 
 Cases on Mines, etc. 
 
 Bland or Bland's Ch. Bland's Maryland Chancery 
 Reports. 
 
 Blatchf. Blatchford's United States Circuit Court 
 Reports— United States Appeals. 
 
 Blatohf. Pr. Ca. or Blatchf. Pr. Cas. Blatchford's 
 Prize Cases. 
 
 Blatchf. d H. Blatchford & Howland's United 
 States District Court Reports. 
 
 Bleck. or Bleckley. Bleckley's Reports, vols. 34, 
 35 Georgia. 
 
 Bli. or Bligh. Bligh's Reports, English House of 
 Lords. 
 
 Bli. N. S. or Bligh N. S. Bligh's Reports, New Se- 
 ries, English House of Lords. 
 
 Bliss. Delaware County Reports, Pennsylvania. 
 
 Bliss L. Ins. Bliss on Life Insurance. 
 
 Bliss N. Y. Co. Bliss's New York Code. 
 
 Bloom. Man. or Bloom. A'c.;/. Cos. or Bloomf. Manu. 
 Cas. or Bloomf. N. Cas. Bloomfleld's Manumission 
 (or Negro) Cases, New Jersey. 
 
 Blount. Blount's Law Dictionary. 
 
 Blount Tr. Blount's Impeachment Trial. 
 
 Boh. Dec. Bohun's Declarations. 
 
 Boh. Eng. L. Bohun's English Lawyer. 
 
 Boh. Priv. Lon. Bohun's Privilegia Lon dlnl. 
 
 Boil. Code N. Boileux's Code Napoleon. 
 
 Bomb. II. Ct. or Bomb. E. Ct. Rep. Bombay High 
 Court Reports. 
 
 Bomb. L. R. Bombay Law Reporter. 
 
 Bomb. Bel. Cas. Bombay Select Cases. 
 
 Bomb. Ser. Bombay Series Indian Law Reports. 
 
 Bond. Bond's United States Circuit Reports. 
 
 Bone Prec. Bone's Precedents on Conveyancing. 
 
 Bonney Ins. Bonney on Insurance. 
 
 Books S. Books of Sederunt. 
 
 Boor, or Booraem. Booraem's Reports, California. 
 
 Boote Ch. Pr. Boote's Chancery Practice. 
 
 Boote S. or Boote, Suit at Law. Boote's Suit at Law. 
 
 Booth Act. or Booth R. A. or Booth, Real Act. 
 Booth on Real Actions. 
 
 Boothley Ind. Off. Boothley on Indictable Offences. 
 
 Bo. R. Act. Booth on Real Actions. 
 
 Borr. Borradaile's Reports, Bombay. 
 
 Borth. Borthwick on Libel and Slander. 
 
 Bos. Bosworth's New York Superior Court Re- 
 ports. 
 
 Bos. d P. or Bos. & P. N. R. or Bos. & Pul. or Bos. 
 & Pul. N. R. Bosanquet & Puller's New Reports, 
 English Common Pleas. 
 
 Bost. Law Rep. Boston Law Reporter. 
 
 Bost. Pol. Rep. Boston Police Court Reports. 
 
 Bosw. Bosweil's Reports, Scotch Court of Ses- 
 sion;— Bosworth's New York Superior Court Reports. 
 
 Bosw. (N. Y.). Bosworth's New York City Supe- 
 rior Court Reports, vols. 14-23. 
 
 Bott P. L. Bott's Poor Laws. 
 
 Bott P. L. Cas. Bott's Poor Law Cases. 
 
 Bott P. L. Const. Const's Edition of Bott's Poor 
 Law Cases. 
 
 Bott Set. Cas. or Bott Sett. Cas. Bott's Poor Law 
 (Settlement) Cases, English. 
 
 Bouch. Ins. Dr. Mar. Boucher, Institutes ou Droit 
 Maritime. 
 
 Boulay Paty Dr. Com. Cours de Droit Commer- 
 cial Maritime, par P. S. Boulay Paty. 
 
 Bould. Bouldin's Reports, vol. 119 Alabama. 
 
 Bouln. or Boulnois. Boulnois's Reports, Bengal. 
 
 Bourke. Bourke's Reports, Calcutta High Court 
 
 Bourke P. P. Bourke's Parliamentary Precedents. 
 
 Bousq. Diet, de Dr. Bousquet, Dlctlonnalre de 
 Droit. 
 
 Bout. Man. Boutwell's Manuel of the Tax Sys- 
 tem of the U. S. 
 
 Bouv. or Bouv. L. D. Bouvler's Law Dictionary. 
 
 Bouv. Inst. Bouvler's Institutes of American Law. 
 
 Bouv. Inst. Th. Institutiones Theologicaa, auctore 
 J. Bouvier. 
 
 Bouvier. Bouvler's Law Dictionary. 
 
 Bov. Pat. Ca. Bovill's Patent I 
 
 Bow. Bowler & Bowers, vols. 2, 3, United States 
 Comptroller's Decisions. 
 
 Bovoen, Pol. Econ. Bowen's Political Economy. 
 
 Bovy.O.L. Bowyer's Modern Civil Law. 
 
 Bowy. Com. or Bowy. P. L. Bowyer's Commenta- 
 ries on Universal Public Law. 
 
 Bowyer, Mod. Civil Law. Bowyer's Modern Civil 
 Law. 
 
 Boyce Pr. Boyce's Practice in the U. S. Courts. 
 
 Boyd A dm. Boyd's Admiralty Law. 
 
 Boyd Sh. Boyd's Merchant Shipping Laws. 
 
 Boyle Char. Boyle on Char 
 
 Br. Bracton or Bracton de Lcgibus et Consuetu- 
 dinibus Anglia;— Bradford ;— Bradwell;— Brayton;— 
 Breese; — Brevard; — Brewster; — Bridgman; — 
 Brightly; — British; — Brltton; — Brockenbrough; 
 — Brooke; — Broom; — Brown; — Brownlow; — 
 Bruce. See below, especially under Bro. 
 
 Br. Abr. Brooke's Abridgment. 
 
 Br. Brev.Jud. Brownlow's Brevla Judicalia. 
 
 Br. C. C. British (or English) Crown Cases 
 (American reprint);— Brown's Chancery Cases, Eng- 
 land. 
 
 Br. Ch. C. Brown's Chancery Cases, English. 
 
 Br. Cr. Ca. British (or English Crown Cases). 
 
 Br. Fed. Dig. Brightly's Federal Digest 
 
 Br. N. C. Brooke's New Cases, English King's 
 Bench. 
 
 Br. P. C. Brown's English Parliamentary Cases. 
 
 Br. Reg. Braithwaite's Register. 
 
 Br. Sup. Brown's Supplement to Morrison's Dic- 
 tionary, Sessions Cases, Scotland. 
 
 Br. Syn. Brown's Synopsis of Decisions, Scotch 
 Court of Session. 
 
 Br. d B. Broderip & Bingham, English Common 
 Pleas. 
 
 Br. d P. Ecc. or Br. d Fr. Broderick & Freeman- 
 tie's Ecclesiastical Cases, English. 
 
 Br. d Gold. Brownlow & Goldesborough's English 
 Common Pleas Reports. 
 
 Br. d L. or Br. d Lush. Brownlow & Lushlngton's 
 English Admiralty Reports. 
 
 Br.&R. Brown & Rader's Missouri Repo 
 
 Brae, or Bract, or Bracton. Bracton de Legibus et 
 Consuetudinibus Angllae. 
 
 Brack. L. Mis. Brackenbridge's Law Miscellany. 
 
 Brack. Trust. Brackenbridge on Trusts. 
 
 Brad. Bradford's Surrogate Reports, New York;— 
 Bradford's Iowa Reports;— Cradwell's Illinois Ap- 
 peal Reports;— Bradley's Reports, Rhode Island;— 
 Brady's History of the Succession of the Crown of 
 England. 
 
 Bradby Dist. Bradby on Distresses. 
 
 Bradf. Bradford's New York Surrogate Reports; 
 —Bradford's Reports, Iowa. 
 
 Bradf. (Ioxoa). Bradford's Reports, Iowa. 
 
 Bradf. Sur. or Bradf. Surr. Bradford's Surrogate 
 Court Reports, New York. 
 
 Bradl. (R. I.). Bradley's Rhode Island Reports. 
 
 Bradl. P. B. Bradley's Point Book. 
 
 Bradw. Bradwell's Reports, Illinois Appellate 
 Courts. 
 
 Brady Ind. Brady's Index, Arkansas Reports. 
 
 Braithw. Pr. Braithwaite's Record and Writ 
 Practice. 
 
 Brame. Brame's Reports, vols. 66-72 Mississippi. 
 
 Branch. Branch's Reports, Florida Reports, vol. I. 
 
 Branch Max. Branch's Maxims. 
 
 Branch Pr. or Branch, Princ. Branch's Prlnclpia 
 Legis et .flSqultatis. 
 
 Brand. Brandenburg's Reports, vol. 21, Opinions 
 Attorneys-General. 
 
 Brand. F. Attachm. or Brand. For. Attachm. Bran- 
 don on Foreign Attachment 
 
 Brande. Brande's Dictionary of Science. 
 
 Brandt Div. Brandt on Divorce Causes. 
 
 Brandt Sur. O. Brandt on Suretyship and Guar- 
 anty. 
 
 Brans. Dig. Branson's Digest of Bombay Reports. 
 
 Brant. Brantly's Reports, vols. 80-116 Maryland. 
 
 Brayt. Brayton's Reports, Vermont. 
 
 Breese. Breese's Reports, vol. 1' Illinois. 
 
 Brett Ca. Eq. Brett's Cases in Modern Equity. 
 
 Brev. Brevard's Reports, South Carolina.
 
 ABBREVIATION 
 
 26 
 
 ABBREVIATION 
 
 Brev. Dig. Brevard's Digest. 
 
 Brev. Ju. Brevia Judicialia (Judicial Writs). 
 
 Brev. Sel. Brevia Selecta, or Choice Writs. 
 
 Brew. Brewer's Reports, vols. 19-26 Maryland. 
 
 Brew, or Brews, or Brewst. Brewster's Reports, 
 Pennsylvania. 
 
 Brew. (Md.). Brewer's Reports, Maryland. 
 
 Brewst. Brewster's Pennsylvania Reports. 
 
 Brice Pub. Wor. Brice's Law Relating to Public 
 Worship. 
 
 Brice U. V. Brice's Ultra Vires. 
 
 Brick. Dig. Brickell's Digest, Alabama. 
 
 Bridg. J. Bridgmore's Reports, English Common 
 Pleas. 
 
 Bridg. Conv. Bridgman on Conveyancing. 
 
 Bridg. Dig. Ind. Bridgman's Digested Index. 
 
 Bridg. J. Sir J. Bridgman's English Common 
 Pleas Reports. 
 
 Bridg. Leg. Bib. Bridgman's Legal Bibliography. 
 
 Bridg. O. Sir Orlando Bridgman's English Com- 
 mon Pleas Reports — (sometimes cited as Carter). 
 
 Bridg. Rcfl. Bridgman's Reflections on the Study 
 of the Law. 
 
 Bridg. Thes. Jur. Bridgman Thesaurus Juridicus. 
 
 Bright. Brightly's Nisi Prius Reports, Pennsyl- 
 vania. 
 
 Bright. C. Brightly on Costs. 
 
 Bright. Dig. Brightly's Digest, New York; — 
 Brightly's Digest, Pennsylvania;— Brightly's Digest, 
 United States. 
 
 Bright. Elec. Cas. or Bright. Elect. Cas. Brightly's 
 Leading Election Cases. 
 
 Bright. Eq. Brightly's Equity Jurisprudence. 
 
 Bright. Fed. Dig. Brightly's Federal Digest. 
 
 Bright H. d W. Bright on Husband and Wife. 
 
 Bright. N. P. Brightly's Nisi Prius Reports, Penn- 
 sylvania. 
 
 Bright. (Pa.). Brightly's Nisi Prius Reports, 
 Pennsylvania. 
 
 Bright. Purd. or Brightly's Purd. Dig. Brightly's 
 Edition of Purdon's Digest of Laws of Pennsyl- 
 vania. 
 
 Bright. T. d H. Pr. Brightly's Edition of Troubat 
 & Haly's Practice. 
 
 Bright. V. S. Dig. Brightly's United States Digest. 
 
 Brisb. or Brisbin (Minn.). Brisbin's Minnesota Re- 
 ports. 
 
 Brissonius. De verborum qua? ad jus civile per- 
 tinent signiflcatione. 
 
 Brit. Britton's Ancient Pleas of the Crown. 
 
 Brit. Col. S. C. British Columbia Supreme Court 
 Reports. 
 
 Brit. Cr. Cas. British (or English) Crown Cases. 
 
 Brit. Quar. Rev. British Quarterly Review. 
 
 Britt. Britton on Ancient Pleading. 
 
 Bro. See, also, Brown and Browne. Browne's 
 Pennsylvania Reports; — Brown's Michigan Nisi Pri- 
 us Reports; — Brown's English Chancery Reports; — 
 Brown's Parliamentary Cases; — Brown's Reports, 
 vols. 53-65 Mississippi; — Brown's Reports, vols. 80- 
 136 Missouri. 
 
 Bro. A. d C. L. Browne's Admiralty and Civil 
 Law. 
 
 Bro. A. & R. Brown's United States District Court 
 Reports (Admiralty and Revenue Cases). 
 
 Bro. Abr. Brooke's Abridgments. 
 
 Bro. Abr. in Eq. Browne's New Abridgment of 
 Cases in Equity. 
 
 Bro. Adm. Brown's United States Admiralty Re- 
 ports. 
 
 Bro. Car. Browne on Carriers. 
 
 Bro. C. C. Brown's English Chancery Cases, or 
 Reports. 
 
 Bro. Ch. or Bro. Ch. Cas. or Bro. Ch. R. Brown's 
 Chancery Cases, English. 
 
 Bro. Civ. Law. Browne's Civil Law. 
 
 Bro. Co. Act. Browne on the Companies Act. 
 
 Bro. Com. Brown's Commentaries. 
 
 Bro. Div. Pr. Browne's Divorce Court Practice. 
 Bro. Ecc. Brooke's Six Judgments in Ecclesias- 
 tical Cases (English). 
 Bro. Ent. Browne's Book of Entries. 
 Bro. Insan. Browne's Medical Jurisprudence of 
 Insanity. 
 
 Bro. Leg. Max. or Bro. Max. Broom's Legal Max- 
 ims. 
 
 Bro. M. N. Brown's Methodus Novissima. 
 
 Bro. M. d D. Browning on Marriage and Divorce. 
 
 Bro. N. C. Brooke's New Cases, English King's 
 Bench. 
 
 Bro. N. P. Brown's Michigan Nisi Prius Reports; 
 — Brown's Nisi Prius Cases, English. 
 
 Bro. N. P. Cas. Browne's National Bank Cases. 
 
 Bro. N. P. (Mich.). Brown's Nisi Prius Cases, 
 Michigan. 
 
 Bro. Of. Not. Brooke on the Offlce of a Notary in 
 England. 
 
 Bro. P. C. Brown's English Parliamentary Cases. 
 
 Bro. (Pa.). Browne's Pennsylvania Reports. 
 
 Bro. Read. Brooke's Reading on the Statute of 
 Limitations. 
 
 Bro. R. P. L. Brown's Limitation as to Real Prop- 
 erty. 
 
 Bro. Sales. Brown on Sales. 
 
 Bro. St. Fr. Browne on the Statute of Frauds. 
 
 Bro. Stair. Brodie's Notes and Supplement to 
 Stair's Institutions of the Laws of Scotland. 
 
 Bro. Supp. Brown's Supplement to Morrison'., 
 Dictionary of the Court of Session, Scotland. 
 
 Bro. Syn. Brown's Synopsis of the Decisions of 
 the Scotch Court of Session. 
 
 Bro. T. M. Browne on Trademarks. 
 
 Bro. V. M. Brown's Vade Mecum. 
 
 Bro. & F. or Bro. d Fr. Brodrick & Freemantle's 
 Ecclesiastical Cases. 
 
 Bro. d G. Brownlow & Goldesborough's English 
 Common Pleas Reports. 
 
 Bro. d Lush. Browning & Lushington's English 
 Admiralty Reports. 
 
 Brock, or Brock. C. C. or Brock. Marsh. Brocken- 
 brough's Reports of Marshall's Decisions, United 
 States Circuit Court. 
 
 Brock. Cas. Brockenbrough's Virginia Cases. 
 
 Brock, d H. or Brock, d Hoi. Brockenbrough & 
 Holmes's Reports, Virginia Cases, vol. 1. 
 
 Brod. Stair. Brodie's Notes and Supplement to 
 Stair's Institutes of the Laws of Scotland. 
 
 Brod. d B. or Brod. d Bing. Broderip & Bingham's 
 English Common Pleas Reports. 
 
 Brod. d F. or Brod. d Fr. Brodrick & Freemantle's 
 Ecclesiastical Cases. 
 
 Brooke or Brooke (Petit). Brooke's New Cases, 
 English King's Bench. 
 
 Brooke Abr. Brooke's Abridgment. 
 
 Brooke Ecc. Brooke's Ecclesiastical Reports, Eng- 
 lish. 
 
 Brooke Eccl. Judg. Brooke's Six Ecclesiastical 
 Judgments. 
 
 Brooke Lim. Brooke's Reading on the Statute of 
 Limitations. 
 
 Brooke N. C. Brooke's New Cases, English King's 
 Bench (Bellewe's Cases, temp. Henry VIII). 
 
 Brooke Not. Brooke on the Office of a Notary In 
 England. 
 
 Brooke Read. Brooke's Reading on the Statute of 
 Limitations. 
 
 Brooke Six Judg. Six Ecclesiastical Judgments of 
 the English Privy Council, by Brooke. 
 
 Brooks. Brooks's Reports, vols. 106-119 Michigan. 
 
 Broom C. L. or Broom Com. Law or Broom Comm. 
 Broom's Commentaries on the Common Law. 
 
 Broom Const. L. Broom's Constitutional Law. 
 
 Broom Leg. Max. or Broom Max. Broom's Legal 
 Maxims. 
 
 Broom Part. Broom's Parties to Actions. 
 
 Broom d H. Com. or Broom d E. Comm. Broom & 
 Hadley's Commentaries on the Laws of England. 
 
 Broun or Broun Just. Broun's Reports, Scotch 
 Justiciary Court. 
 
 Brown. Brown's Reports, vols. 53-65 Mississippi; 
 —Brown's English Parliamentary Cases;— Brown's 
 English Chancery Reports ;— Brown's Law Diction- 
 ary;— Brown's Scotch Reports ;— Brown's United 
 States District Court Reports;— Brown's U. S. Ad- 
 miralty Reports;— Brown's Michigan Nisi Prius Re- 
 ports;— Brown's Reports, vols. 4-25 Nebraska;— 
 Brownlow (& Goldesborough's) English Common 
 Pleas Reports ;— Brown's Reports, vols. 80-136 Mis- 
 souri. See, also, Bro. and Browne. 
 
 Brown, Adm. Brown'B United States Admiralty 
 Reports.
 
 ABBREVIATION 
 
 27 
 
 ABBREVIATION 
 
 Brown A. & R. Brown's United State3 District 
 Court Reports (Admiralty and Revenue Cases). 
 
 Brown Car. Brown on Carriers. 
 
 Brown Ch. or Brown Ch. C. or Brown Ch. Cas. or 
 Brown Ch. R. Brown's Chancery Cases, English. 
 
 Brown, Civ. & Adm. Law. Brown's Civil and Ad- 
 miralty Law. 
 
 Brown Comm. Brown's Commentaries. 
 
 Brown Diet. Brown's Law Dictionary. 
 
 Brown Ecc. Brown's Ecclesiastical Reports, Eng- 
 lish. 
 
 Brown Ent. Brown's Ent; 
 
 wnFixt. Tlrown on Fixtures. 
 n Lim. Brown's Law of Limitations. 
 
 Brown. M. & D. Browning on Marriage and Di- 
 vorce. 
 
 Brown Novis. Brown's Method of Novissima. 
 
 Brown N. P. Brown's Michigan Nisi Prius Re- 
 ports. 
 
 Brown N. P. Cos. Brown's Nisi Prius Cases, Eng- 
 lish. 
 
 BroxonN. P. (Mich.). Brown's Nisi Prius Reports, 
 Michigan. 
 
 n P. C. or Brown, Pari. Cas. Brown's Parlia- 
 mentary Cases, English House of Lords. 
 
 Brown R. P. L. Brown's Limitations as to Real 
 Property. 
 
 Brown Sales. Brown on Sales. 
 
 Brown Sup. or Brown Sep. Dec. Brown's Supple- 
 ment to Morrison's Dictionary. Session Cases, Scot- 
 land. 
 
 Brown Syn. Brown's Synopsis of Decisions of the 
 Scotch Court of Session. 
 
 Brown V. M. Brown's Vade Mecum. 
 
 Brown. <£ Gold. Brownlow & Goldesborough's Eng- 
 lish Common Pleas Reports. 
 
 Brown <£ II. ( Miss.). Brown & Hemingway's Re- 
 ports, vols. 53-65 Mississippi. 
 
 Brown dc L. or Brown & Lush. Brown's & Lushing- 
 ton's Reports, English Admiralty. 
 
 Browne. Browne's Pennsylvania Reports; — 
 Browne's Reports, vols. 97-1C9 and 112-114 Massachu- 
 setts ;— Browne, New York Civil Procedure. See 
 also Bro. and Brown. 
 
 Browne Adm. C. L. Browne's Admiralty and Civil 
 Law. 
 
 Browne Bank Cas. or Browne Nat. B. C. Browne's 
 National Bank Cases. 
 
 Browne Car. Browne on the Law of Carriers. 
 
 Browne Civ. L. Browne on Civil Law. 
 
 Browne, Div. or Browne Div. Pr. Browne's Divorce 
 Court Practice. 
 
 Browne Frauds. Browne on the Statute of Frauds. 
 
 Browne Insan. Browne's Medical Jurisprudence 
 of Insanity. 
 
 Browne Mass. Browne's Rpports, Massachusetts, 
 vols. 97-109 and 112-111. 
 
 Browne N. B. C. Browne's National Bank Cases. 
 
 Browne, Prob. Pr. Browne's Probate Practice. 
 
 Browne 2'. M. Browne on Trademarks. 
 
 Browne Usages. Browne on Usages and Customs. 
 
 Browne & G. or Browne & Gray. Browne & Gray's 
 Reports, Massachusetts, vols. 110-111. 
 
 Browne «£ Macn. Browne & Macnamara's English 
 Railway and Canal Cases. 
 
 Broxoning Mar. & D. Browning on Marriage and 
 Divorce. 
 
 Broxoning £ L. Browning & Lushington's Reports, 
 English Admiralty. 
 
 Brownl. or Brownl. £ G. or Brownl. £ Gold. Brown- 
 low & Goldesborough's English Common Pleas Re- 
 ports. 
 
 Brownl. Brev. Jud. Brownlow's Brevia Judiciala. 
 
 Brownl. Ent. or Broxcnl. Rediv. Brownlow's Redl- 
 vivus or Entries. 
 
 Bru. or Brxtce. Bruce's Reports, Scotch Court of 
 Session. 
 
 Bruce M. L. Bruce's Military Law, Scotland. 
 
 Brun. Brunner's Collective Cases, United States. 
 
 Brunk. Ir. Dig. Brunker's Irish Common Law Di- 
 gest. 
 
 Brunncr Sel. Cas. Brunner's Selected Cases Unit- 
 ed States Circuit Courts. 
 
 Bt. Benedict's United States District Court Re- 
 ports. 
 
 Buch. Buchanan's (Eben J. or James) R- 
 Cape of Good Hope. 
 
 Buch. Ca.i.QT Tr. Buchanan's Remarkable Crim- 
 inal Cases, Scotland. 
 
 Buch. Ct. Ap. Cape G. H. Buchanan's Court of Ap- 
 peals Reports, Cape of Good 1 1 
 
 pe U. II. E. Buchanan's Reports, Cape 
 of Good Hope. 
 
 Buch. E. D. Cape G. H. Buchanan's Eastern Dis- 
 trict Reports, Cape of Good Hope. 
 
 Buch. J. Cape G. U. J. Buchanan's Reports, Cape 
 of Good Hope. 
 
 Buch. Rep. Buchanan's Reports, Cape of Good 
 Hope. 
 
 Buck. Buck's English Cases In Bankruptcy ;— 
 Buck's Reports, vols. 7-8 Montana. 
 
 Buck Cas. Buck's Bankrupt Cases, English. 
 
 Buck. Co. Act. Buckley's Law and Practice under 
 Companies Act. 
 
 Buch. Cooke. Bucknlll's Cooke's Cases of Prac- 
 tice, Common Pleas. 
 
 Buck. Dec. Buckner's Decisions (In Freeman's 
 -ippi Chancery Report*--!. 
 
 Buff. Sxiper. Ct. (N. Y.). Sheldon's Superior Court 
 Reports, Buffalo, New York. 
 
 Bull. N. P. Bullor's Law of Nisi ! Ush. 
 
 Bull. & C. Dig. or Bull, d Cur. Dig. Bullard & Cur- 
 ry's Louisiana Digest. 
 
 Bull. & L. Pr. Bullen & Leake's Precedents of 
 Pleading. 
 
 Duller MPS. J. Buller's Paper Books, Lincoln's 
 Inn Library. 
 
 Bulling. Eccl. Bulllngbrooke's Ecclesiastical Law. 
 
 Bulst. Bulstrode's Reports, English King's Bench. 
 
 Bump Bkcy. Bump's Bankruptcy Practice. 
 
 Bump Fed. Proc. Bump's Federal Procedure. 
 
 Bump Fr. Conv. or Bump Fraud. Conv. Bump on 
 Fraudulent Conveyances. 
 
 Bump Inter. Rev. L. Bump's Internal Revenue 
 Laws. 
 
 Bump N. C. or Bump Notes. Bump's Notes on 
 Constitutional Decisions. 
 
 Bump Pat. Bump's Law of Patents, Trademarks, 
 etc. 
 
 Bunb. Bunbury's Reports, English Exchequer. 
 
 Buny. L. A. Bunyon on Life Insurance. 
 
 Bur. Burnett's Reports, Wisconsin ; — Burrow's 
 Reports, English King's Bench. 
 
 Bur. M. Burrow's Reports tempore Mansfield. 
 
 Burd. Cas. Torts. Burdick's Cases on Torts. 
 
 Burf. Burford's Reports, vols. 6-18 Oklahoma. 
 
 Burg. Dig. Burgwyn's Digest Maryland R 
 
 Burge Col. Law. Burge on Colonial Law. 
 
 Burge Confl. Law. Burge on the Conflict of Laws. 
 
 Burge For. Law. Burge on Foreign Law. 
 
 Burge Mar. Int. L. Burge on Maritime Interna- 
 tional Law. 
 
 Burge Sur. Burge on Suretyship. 
 
 Burgess. Burgess's Re-ports, vols. 46-51 Ohio 
 State. 
 
 Burke Tr. Burke's Celebrated Trials. 
 
 Burks. Burks's Reports, vols. 91-98 Virginia. 
 
 Burlam. Nat. Law or Barlamcqui. Burlamaqul's 
 Natural and Politic Law. 
 
 Burlesque Reps. Skillman's New York Police Re- 
 ports. 
 
 Burm. L. R. Burmah Law Reports. 
 
 Burn. Burnett's Reports, Wisconsin. 
 
 Burn. Cr. L. Burnett on the Criminal Law of 
 Scotland. 
 
 Burn Diet. Burn's Law Dictionary. 
 
 Burn, Ecc. Law or Burn Ec. L. Burn's Ecc: 
 cal Law. 
 
 BurnJxis. Burn's Justice of the Peace. 
 
 Burnet. Burnet's Manuscript Decisions, Scotch 
 Court of Session. 
 
 Burnett. Burnett's Wisconsin Reports ;— Burnett's 
 Reports, vol 
 
 Burr. Burrow's Reports, English King's Bench 
 temp. Mansfield. 
 
 Burr. Ass. Burrlll on Assignments. 
 
 Burr. Circ. Ev. Burrill on Circumstantial Evi- 
 dence. 
 
 Burr. Diet. Buirill's Law Dictionary.
 
 ABBREVIATION 
 
 28 
 
 ABBREVIATION 
 
 Burr. Prac. Burrill's Practice. 
 
 Burr. S. C. or Sett. Cas. Burrows's English Settle- 
 ment Cases. 
 
 Burr. Taxation. Burroughs on Taxation. 
 
 Burr Tr. Burr's Trial. 
 
 Burr Tr. Rob. Burr's Trial, reported by Robert- 
 son. 
 
 Burrill. Burrill's Law Dictionary. 
 
 lll,Circ.Ev. Burrill on Circumstantial Evi- 
 dence. 
 
 Burrill, Pr. Burrill's Practice. 
 
 Burrow. Burrow's Reports, English King's Bench. 
 
 Burrow, Sett. Cas. Burrow's English Settlement 
 Cases. 
 
 Burt. Bankr. Burton on Bankruptcy. 
 
 Burt. Cas. Burton's Collection of Cases and Opin- 
 ions. 
 
 Burt. Pari. Burton's Parliamentary Diary. 
 
 Burt. R. P. or Burt. Real Prop. Burton on Real 
 Property. 
 
 Burt. Sc. Tr. Burton's Scotch Trials. 
 
 Bust. Busbee's Law Reports, North Carolina Re- 
 ports, vol. 44. 
 
 Bush. Cr. Dig. Busbee's Criminal Digest, North 
 Carolina. 
 
 Busb. Eq. Busbee's Equity Reports, North Caro- 
 lina. 
 
 Bush. Bush's Reports, Kentucky. 
 
 Busw. & Wal. Pr. Buswell & Walcott's Practice, 
 
 Butl. Co. Litt. Butler's Notes to Coke on Little- 
 ton. 
 Butl. Eor. Jur. Butler Hora; Juridicse Subsecivaj. 
 Butt's Sh. Butt's Edition of Shower's English 
 King's Bench Reports. 
 
 Buxton. Buxton's Reports, vols. 123-129 North 
 Carolina. 
 Byles, Bills. Byles on Bills. 
 Bynk. Bynkershoek on the Law of War. 
 Bynk. Jur. Pub. Bynkershoek Quaestionea Juris 
 Publici. 
 
 Bynk. Obs. Jur. Rom. Bynkershoek, Observatlon- 
 um Juris Roman! Llbrl. 
 Bynk. War. Bynkershoek on the Law of War. 
 Byth. Conv. Bythewood's Conveyancing. 
 Byth. Prec. Bythewood's Precedents. 
 C. Cowen's Reports, New York;— Connecticut;— 
 California ;— Colorado ;— Canada (Province) ;— Codex 
 Juris Civilis. Code. Chancellor. Chancery. Chap- 
 ter. Case. 
 
 C. of S. Ca. 1st Series. Court of Session Cases, 
 First Series. By Shaw, Dunlop & Bell. Ct, Sess. 
 (Sc). 
 
 C. of S. Ca. Zd Series. Court of Session Cases, Sec- 
 ond Series. By Dunlop, Bell & Murray. Ct. Sess. 
 (Sc). 
 
 C. of S. Ca. Sd Series. Court of Session Cases, 
 Third Series. By Macpherson, Lee & Bell. Ct. 
 Sess. (Sc). 
 
 C. of S. Ca. ith Series. Court of Session Cases, 
 Fourth Series. By Rettie, Crawford & Melville. 
 Ct. Sess. (Sc). 
 
 C. A. Court of Appeal ; Court of Arches ; Chan- 
 cery Appeals. 
 
 C. B. Chief Baron of the Exchequer; Common 
 Bench; English Common Bench Reports, by Man- 
 ning, Granger & Scott. 
 
 C. B. N. S. English Common Bench Reports, New 
 Series, by Manning, Granger & Scott. 
 C. B. R. Cour de Blanc de la Reine, Quebec. 
 C. C. Circuit Court; Chancery Cases; Crown 
 Cases; County Court; City Court ; Cases in Chan- 
 cery, English; Civil Code; Civil Code Francais, or 
 Code Napoleon; Cepi Corpus. 
 
 C. C. A. U. S. Circuit Court of Appeals Reports; 
 —Circuit Court of Appeals, United States;— County 
 Court Appeals, English. 
 
 C. C. C. Choice Cases In Chancery, English ;— 
 Crown Circuit Companion. 
 
 C. C. Chr. or C. C. Chron. Chancery Cases Chron- 
 icle, Ontario. 
 
 C. C. E. Caines's Cases In Error, New York; — 
 Cases of Contested Elections. 
 C. C. L. C. Civil Code, Quebec 
 C. Com. Code de Commerce 
 
 C. C. P. Code of Civil Procedure. 
 C. C. R. City Courts Reports, New York City ;— 
 County Court Reports, Pa.;— Crown Cases Reserved. 
 C. Cr. P. Code of Criminal Procedure. 
 C. C. Supp. City Court Reports, Supplement, New 
 York. 
 C. C. & B. B. Cepl Corpus and Bail Bond. 
 C. C. & C. Cepi Corpus et Committitur. 
 C. D. Commissioner's Decisions, United States 
 Patent Office ;— Century Digest;— Comyn's Digest. 
 C. d'Et. Conseil d'Etat. 
 
 C. E. Or. C. E. Greene's New Jersey Equity Re- 
 ports. 
 C. F. Code Forestier. 
 
 C. H. Bee. City Hall Recorder (Rogers), New 
 York City. 
 
 C. H. Rep. City Hall Reporter (Lomas), New 
 York City. 
 
 C. H. & A. Carrow, Hamerton & Allen's New Ses- 
 sions Cases, English. 
 C. L Constitutiones Imperiales. 
 C. Itxstr. Cr. Code Instruction Criminelle. 
 C. J. Chief Justice. 
 
 C. J- C. Couper's Justiciary Cases, Scotland. 
 C. J. Can. Corpus Juris Canonicl. 
 C. J. Civ. Corpus Juris Civilis. 
 C. J. C. P. Chief Justice of the Common Pleas. 
 C. J. K. B. Chief Justice of the King's Bench. 
 C. J. Q. B. Chief Justice of the Queen's Bench. 
 C. J. U. B. Chief Justice of the Upper Bench. 
 C. L. Common Law. Civil Law. 
 C. L. Ch. Common Law Chamber Reports, On- 
 tario. 
 
 C. L. J. Central Law Journal, St. Louis, Mo. ;— 
 Canada Law Journal, Toronto. 
 
 C. L. J. N. S. Canada Law Journal, New Series, 
 Toronto. 
 C. L. N. Chicago Legal News. 
 
 C. L. P. Act.' English Common Law Procedure Act. 
 C. L. R. Common Law Reports, printed by Spot- 
 tlswoode;— English Common Law Reports. 
 
 C- M. R. Crompton, Meeson & Roscoe's Reports, 
 English Exchequer. 
 C. N. Code Napoleon. 
 
 C. N. Conf. Cameron & Norwood's North Carolina 
 Conference Reports. 
 C. N. P. Cases at Nisi Prius. 
 
 C. N. P. C. Campbell's Nisi Prius Cases, English. 
 C. O. Commons' Orders. 
 
 C. of C. E. Cases of Contested Elections, United 
 States. 
 
 C.P. Code of Procedure ;— Common Pleas;— Code 
 Penal. 
 
 C. P. C. Code of Civil Procedure, Quebec ;— Coda 
 de Procedure Civile;— Cooper's Practice Cases, Eng- 
 lish. 
 C- P. Coop. C. P. Cooper's Reports, English. 
 C. P. C. t. Br. C. P. Cooper's English Chancery 
 Reports tempore Brougham. 
 
 C. P. C. t. Cott. C. P. Cooper's English Chancery 
 Reports tempore Cottenham. 
 
 C. P. D. or C. P. Div. Common Pleas Division, 
 English Law Reports (1875-1880). 
 C. P. Q. Code of Civil Procedure, Quebec. 
 C. P. Rep. or C. P. Rept. Common Pleas Reporter, 
 Scranton, Pennsylvania. 
 C. P. U. C. Common Pleas Reports, Upper Canada. 
 C. Pr. Code of Procedure ;— Code de Procedure 
 Civile. 
 
 CR. Chancery Reports ;— Code Reporter, New 
 York. 
 C. R. N. S. Code Reports, New Series, New York. 
 C. Rob. or C. Rob. Adm. Christopher Robinson's 
 Reports on English Admiralty. 
 C. S. Court of Session, Scotland. 
 C. S. B. C. Consolidated Statutes, British Colum- 
 bia. 
 C. S. C. Consolidated Statutes of Canada, 1859. 
 C. S. L. C. Consolidated Statutes, Lower Canada. 
 C. S. M. Consolidated Statutes of Manitoba. 
 C. S. N. B. Consolidated Statutes of New Bruns- 
 wick. 
 
 C. S. V. C. Consolidated Statutes of Upper Can- 
 ada, 1859. 
 C. S. & J. Cushlng, Storey & Josselyn's Election
 
 ABBREVIATION 
 
 29 
 
 ABBREVIATION 
 
 Cases. See vol. 1 Cushing's Election Cases, Massa- 
 chusetts. 
 
 C. S. & P. (Craigle, Stewart &) Paton's Scotch 
 Appeal Cases. 
 
 C. T. Constitutiones Tlberli. 
 
 C. Tin, d. Codex Thcodosianl. 
 
 C. t. K. Cases tempore King (Macnaghten's Se- 
 |ect Chancery Cases, English*. 
 
 V. t. X. Cases tempore Northington (Eden's Eng- 
 li ih Chancery Reports). 
 
 C. t. T. or O. t. Talb. Cases tempore Talbot, Eng- 
 lish Chancery. 
 
 V. W. Dud. C. W. Dudley's Law or Equity Re- 
 ports, South Carolina. 
 
 C.W.Dudl.Sq. C. W. Dudley's Equity Reports, 
 South Carolina. 
 
 C.dA. Cooke & Alcock's Reports, Irish King's 
 Bench and Exchequer. 
 
 C. d C. Coleman and Caine's Cases, New York. 
 
 C. d D. Corbelt & Daniel's English Election Cas- 
 es; — Crawford & Dix's Abridged Cases, Irish. 
 
 D. A. C. Crawford & Dix's Abridged Cases, 
 Irish. 
 
 !>. C. C. Crawford & Dix's Irish Circuit Cas- 
 es;— Crawford & Dix's Criminal Cases, Irish. 
 
 C.dE. Cababe & Ellis, English. 
 
 C. d F. Clark H. Finnelly's Reports, English 
 House of Lords. 
 
 C. d H. Dig. Coventry & Hughes's Digest. 
 
 C. d J. Cromptou Ai Jervis's English Exchequer 
 Report 
 
 ( . <(■ K. Carrington & Kirwan's Reports, English 
 Nisi Prius. 
 
 C.dL. Connor & Lawson's Irish Chancery Re- 
 ports. 
 
 C. d L. C. C. Cane & Leigh's Crown Cases. 
 
 C. & L. Dig. Cohen & Lee's Maryland Digest. 
 
 C. d M. Crompton & Meeson's English Exchequer 
 Reports;— Carrington & Marshman's English Nisi 
 Prius Reports. 
 
 C. d Marsh. Carrington & Marshman's Reports, 
 English Nisi Prius. 
 
 C d N. Cameron & Norwood's North Carolina 
 Conference Reports. 
 
 C. & O. R. Cas. or C. & O. R. R. C. Cos. Carrow & 
 Oliver's English Railway and Canal Cases. 
 
 C. d P. Carrington & Payne's English Nisi Prius 
 Reports; — Craig & Phillips's Chancery Reports. 
 
 C. d R. Cockburn & Rowe's Reports, English Elec- 
 tion Cases. 
 
 C. &. S. Dig. Connor & Simonton's South Carolina 
 DiKest. 
 
 C'a. Case; — Placita ; — Placitum; — Cases (see Cas.). 
 
 Ca. resp. Capias ad respondendum. 
 
 Ca. sa. Capias ad satisfaciendum. 
 
 Ca. t. Hard. Cases tempore Hardwicke. 
 
 Ca.t.K. Cases tempore King; — Cases tempore 
 King, Chancery. 
 
 Ca. t. Talb. Cases tempore Talbot, Chancery. 
 
 Ca. temp. F. Cases tempore Finch. 
 
 Ca. temp. H. Cases tempore Hardwicke, King's 
 Bench. 
 
 Ca. temp. Holt. Cases tempore Holt, King's Bench. 
 
 Cab. Luwy. The Cabinet Lawyer. 
 
 Cab. d E. or Cab. d El. Cababe & Ellis, English. 
 
 Cadw. Dig. Cadwalader's Digest of Attorney- 
 Generals' Opinions. 
 
 Cadw. Or. Rents. Cadwalader on Ground Rents. 
 
 Cai. Caines's Reports, Supreme Court, N. Y. ;— 
 Gaines's Term Reports, New York Supreme Court 
 
 Cai. Cas. or Cai. Cas. Err. Caines's New York Cas- 
 ss in Error. 
 
 Cai. Inst. Call or Gali Institutiones. 
 
 Cai. Lex. Mer. Caines's Lex Mercatoria. 
 
 Cai. Pr. Caines's Practice. 
 
 Cai. T. R. Caines's Term Reports, New York Su- 
 preme Court. 
 
 Cai. Visig. Caines's Visigothicum. 
 
 Cain, or Caines. Caincs, New York ; — Caines's Re- 
 ports, New York Supreme Court. 
 
 Caines Cas. Caines's Cases, Court of Errors, New 
 York. 
 
 Cairn's Dec. Cairn's Decisions in the Albert Ar- 
 bitration. 
 
 Cairns Dec. Cairns's Decisions, Reilly, English. 
 
 Cai. California;— California Reports; — Calthrop's 
 English King's Bench Reports;— Caldecott's English 
 Settlement Cases. 
 
 Cat. L.J. California Law Journal, San Prai 
 
 Cai. Leg. Adv. Calcutta Legal Advertiser, India. 
 
 Cat. J.cg.Obs. Calcutta Legal Observer. 
 
 Cai. Leg. Rec. California Legal Record, San FraD- 
 clsco. 
 
 Cai. I'rac. Hart's California Practice. 
 
 ,'cp. California Reports ; — Calthrop's Eng 
 lish King's Bench Reports. 
 
 Cai. H. D. A. Calcutta Sudder dewanny Adawlui 
 Reports. 
 
 Ber. Calcutta Series Indian Law Reports. 
 
 Cai. S'-io. Call is on Sewers. 
 
 utta Weekly Reporter, India. 
 
 Calc. L. O. Calcutta Legal Observer. 
 
 Cnld. Caldwell's Reports, vols. 25-36 West Vir- 
 ginia. 
 
 Cald. or Cald. J. P. or Cald. M. Cas. or Cald. S. C. 
 Caldecott's English Magistrate's (Justice of the 
 Peace) and Settlement Cases. 
 
 Cald. Aib. Caldwell on Arbitration. 
 
 Cald. Sett. Cas. Caldecott's Settlement Cases. 
 
 Call. Call's Reports, Virginia. 
 
 Call. Mil. L. Callan's Military Laws. 
 
 Call. Sew. Callis on Sewers. 
 
 Calth. Calthorpe's Reports, English King's Bench. 
 
 Calth. Coyyh. Calthorpe on Copyholds. 
 
 Calvin, or Calv. Lex. or Calvin. Lex. Jurid. Calvin- 
 us Lexicon Juridlcum. 
 
 Calv. Par. Calvert on Parties to Suits In Equity. 
 
 Cam. Cameron's Reports, Upper Canada Queen's 
 Bench. 
 
 Cam. Crit. Camden's Britannia. 
 
 Cam. Due. Camera Ducata, Duchy Chamber. 
 
 Cam. Op. Cameron's Legal Opinions, Toronto. 
 
 Cam. Scac. or Cam. Scacc. Camera Scaccaria (Ex- 
 chequer Chamber). 
 
 Cam. Stell. Camera Stellata, Star Chamber. 
 
 Cam. d N. or Cam. d Nor. Cameron & Norwood's 
 Reports, North Carolina Conference Reports, vol. 3. 
 
 Camd. Brit, or Camden. Camden's Britannia. 
 
 Camp. Camp's Reports, vol. 1 North Dakota;— 
 Campbell's English Nisi Prius Reports;— Campbell's 
 Reports, vols. 27-58 Nebraska. See also Campbell. 
 
 Camp. Dec. or Campt. Dec. Campbell's Reports of 
 Taney's Decisions, U. S. Circuit Court ;— Campbell's 
 Decisions. 
 
 Camp. Li. Ch. or Camp. Lives Ld. Ch. Campbell's 
 Lives of the Lord Chancellors. 
 
 Camp. N. P. Campbell's Reports, English Nisi 
 Prius. 
 
 Campbell. Campbell's English Nisi Prius Re- 
 ports ;— Campbell's Reports of Taney's United States 
 Circuit Court Decisions;— Campbell's Legal Gazette 
 Reports, Pennsylvania;— Campbell's Reports, vols 
 27-58 Nebraska. 
 
 Camp. Neg. Campbell on Negligence. 
 
 Can. Canon. Canada. 
 
 Can. Exch. Canada Exchequer Reports. 
 
 Can. L. J. Canada Law Journal, Toronto. 
 
 Can. L. J. (L. C). Lower Canada Law Journal 
 Montreal. 
 
 Con. L. T. Canadian Law Times, Toronto, Canada. 
 
 Can. Mun. J. Canadian Municipal Journal. 
 
 Can. S. C. Rep. Canada Supreme Court Reports 
 
 Canad. Mo. Canadian Monthly. 
 
 Cane d L. Cane & Leigh's Crown Cases Reserved. 
 
 Cap. Capitulum. Chapter. 
 
 Cape Law J. Cape Law Journal, Grahamstown, 
 Cape of Good Hope. 
 
 Car. Carolina ;— Carolus; thus 13 Car. II., signi- 
 fies the thirteenth year of the reign of King 
 Charles II. 
 
 Car. Cr. L. Carrlngton's Criminal Law. 
 
 Car., H. d A. Carrow, Hamerton & Allen's New 
 Sessions Cases, English. 
 
 Car. L. Jour. Carolina Law Journal, Charleston. 
 S. C. 
 
 Car. L. Rep. Carolina Law Repository, Raleigh, 
 N. C. 
 
 Car. 0. d B. Carrow, Oliver & Bevan's English 
 Railway and Canal Cases. 
 
 Car. d K. or Car. d Kir. Carrington ft Kirwan's 
 English Nisi Prius Reports.
 
 ABBREVIATION 
 
 30 
 
 ABBREVIATION 
 
 Car. & M. or Car. £ Mar. Carrington & Marsliman's 
 English Nisi Prius Reports. 
 
 Car. & O. or Car. & 01. Carrow & Oliver's Railway 
 and Canal Cases. 
 
 Car. & P. Carrington & Payne's Reports, English 
 Nisi Prius. 
 
 Carl. Carleton, New Brunswick. 
 
 Carp. Carpenter's Reports, California. 
 
 Carp. P. C. Carpmael's English Patent Cases. 
 
 Carpenter. Carpenter's Reports, vols. 52-53 Cali- 
 fornia. 
 
 Carr. Cas. Carran's Summary Cases, India. 
 
 Carr., Ham. & Al. Carrow, Hamerton & Allen's 
 New Sessions Cases, English. 
 
 Carr. & K. Carrington & Kirwan. 
 
 Carrau. Carrau's Edition of "Summary Cases," 
 Bengal. 
 
 Cart. Cartwright's Cases, Canada;— Carter's Re- 
 ports, English Common Pleas. 
 
 Cart. (Ind.). Carter's Reports, Indiana. 
 
 Carta de For. Carta de Foresta. 
 
 Carter. Carter's English Common Pleas Reports, 
 same as Orlando Bridgman ; — Carter's Reports, vols. 
 1, -.. Indiana. 
 
 Carth. Carthew's Reports, English King's Bench. 
 
 Cartm. Trade M. Cas. Cartmell's Trademark Casi k. 
 
 Cartw. Const. Cas. Cartwright's Constitutional 
 Cases. 
 
 Gary. Cary's Reports, English Chancery. 
 
 Gary Part. Cary on Partnership. 
 
 Cas. Casey's Reports, vols. 25-36 Pennsylvania 
 State. 
 
 Cas. App. Cases on Appeal to the House of Lords. 
 
 Cas. Arg. &Dec. Ch. Cases Argued and Decreed 
 in Chancery, English. 
 
 Cas. B. R. Cases Banco Regis tempore William 
 III. (12 Modern Reports). 
 
 Cas. B. R. Holt. Cases and Resolutions (of set- 
 tlements ; not Holt's King's Bench Reports). 
 
 Cas. Ch. Cases in Chancery, English;— Select Cas- 
 es in Chancery; — Cases in Chancery (9 Modern Re- 
 ports). 
 
 Cas. C. L. Cases in Crown Law. 
 
 Cas. Ch. 1, 2, 8. Cases in Chancery temp. Car. II. 
 
 Cas. Eq. Cases in equity, Gilbert's Reports ; — 
 Cases and Opinions in Law, Equity, and Convey- 
 ancing. 
 
 Cas. Eq. Abr. Cases in Equity Abridged, English. 
 
 Cas. F. T. Cases tempore Talbot, by Forrester, 
 English Chancery. 
 
 Cas. H. L. or Cas. H. of L. Cases in the English 
 House of Lords. 
 
 Cas. in C. Cases in Chancery;— Select Cases in 
 Chancery. 
 
 Cos. in P. or Cas. Pari. Cases in Parliament. 
 
 Cas. K. B. Cases in King's Bench (8 Modern Re- 
 ports). 
 
 Cas. K. B. t. H. or Cas. K. B. t. Hardw. Cases 
 temp. Hardwicke, W. Kelynge's Reports, English 
 King's Bench. 
 
 Cas. L. & Eq. Cases in Law and Equity (10 Mod- 
 ern Reports); — Gilbert's Cases in Law and Equity, 
 English. 
 
 Cos. P. or Cos. Pari. Cases in Parliament. 
 
 Cas. Pr. Cases of Practice in the Court of the 
 King's Bench, from Eliz. to 14 Geo. III. 
 
 Cas. Pr. or Cas. Pr. C. P. (Cooke). Cooke's Practice 
 Cases, English Common Pleas. 
 
 Cas. Pr. K. B. Cases of Practice, English King's 
 Bench. 
 
 Cas. R. Casey's Reports, Pennsylvania State Re- 
 ports, vols. 25-36. 
 
 Cas. S. C. (Cape of O. H.). Cases in the Supreme 
 Court, Cape of Good Hope. 
 
 Cas. Self Def. Cases on Self Defence, Horrigan & 
 Thompson's. 
 
 Cas. Sett. Cases of Settlement, King's Bench. 
 
 Cas. Six Cir. Cases in the Six Circuits, Ireland. 
 
 Cas. t. Ch. II. Cases temp. Charles II., in vol. 3 
 of Reports in Chancery. 
 
 Cos. t. F. Cases tempore Finch, English Chancery. 
 
 Cas. t. Geo. I. Cases tempore George I., English 
 Chancery, Modern Reports, vols. 8 and 9. 
 
 Cas. t. H. or Cas. t. Hardwicke. Cases tempore 
 Hardwicke, English King's Bench (Ridgway, Lee, 
 
 or Annaly) ;— West's Chancery Reports, tempore 
 Hardwicke. 
 
 Cas. t. Holt or Cas. t. H. Cases tempore Holt. 
 English King's Bench ;— Holt's Reports. 
 
 Cas. t. K. Select Cases tempore King, English 
 Chancery (edited by Macnaghten) ;— Moseley's Chan- 
 cery Reports, tempore King. 
 
 Cas. t. Lee ( Phillimore' s ) . Cases temp. Lee, Eng- 
 lish Ecclesiastical. 
 
 Cas. t. Mac. Cases tempore Macclesfield, Modern 
 Reports, vol. 10, Lucas's Reports. 
 
 Cas. t. Nap. Cases tempore Napier, by Drury, 
 Irish Chancery. 
 
 Cas. t. North. Cases temp. Northlngton (Eden's 
 English Chancery Reports). 
 
 Cas. t. Plunk. Cases tempore Plunkett, by Lloyd 
 & Gould, Irish Chancery. 
 
 Cas. t. Q. A. Cases tempore Queen Anne, Modern 
 Reports, vol. 11. 
 
 Cas. t. Sugd. Cases tempore Sugden, Irish Chan- 
 cery. 
 
 Cas. t. Tal. Cases tempore Talbot, English Chan- 
 cery, Forrester's Reports. 
 
 Cos. t. Wm. III. Cases tempore William III., Mod- 
 ern Reports, vol. 12. 
 
 Cas. Tak. <6 Adj. Cases Taken and Adjudged (first 
 edition of Reports in Chancery). 
 
 Cas. Wm. I. Bigelow's Cases, William I. to Rich- 
 ard I. 
 
 Cas. w. Op. or Cas. & Op. Cases with Opinions of 
 Eminent Counsel 
 
 Casey. Casey's Reports, Pennsylvania State Re- 
 ports, vols. 25-36^ 
 
 Cass. Dig. Cassel's Digest, Canada. 
 
 Cass. Sup. C. Prac. Cassel's Supreme Court Prac- 
 tice, 2d edition by Masters. 
 
 Castle Com.' Castle on Law of Commerce. 
 
 Cav. Money Sec. Cavanaugh's Law of Money Se- 
 curities. 
 
 Cav. Deb. Cavendish's Debates, House of Com- 
 mons. 
 
 Cawl. Cawley's Laws against Recusants. 
 
 Cay Abr. Cay's Abridgment of the Statutes. 
 
 Cel. Tr. Burke's Celebrated Trials. 
 
 Cent. Diet. Century Dictionary. 
 
 Cent. Dig. Century Digest. 
 
 Centr. Cr. C. R. Central Criminal Court Reports, 
 English. 
 
 Centr. L. J. Central Law Journals, St. Louis, Mo. 
 
 Ceyl. Leg. Misc. Ceylon Legal Miscellany. 
 
 Ch. 
 [1891] Ch. English Chancery Cases ; Law Re- 
 ports, 1st Series, 1891. 
 [1892] Ch. Same for 1892, etc. 
 
 Ch. App. Cas. Chancery Appeal Cases, English 
 Law Reports. 
 
 Ch. Burn J. Chitty Burn's Justice. 
 
 Ch. Cal. Chancery Calendar. 
 
 Ch. Cas. Cases in Chancery. 
 
 Ch. Cas. Ch. Choice Cases in Chancery. 
 
 Ch. Ch. or Ch. Cham. (Ont.). Chancery Chambers's 
 Reports, Ontario. 
 
 Ch. Col. Op. Chalmers's Colonial Opinions. 
 
 Ch. D. Chancery Division English Law Report*. 
 
 Ch. Dig. Chaney's Digest, Michigan Reports. 
 
 Ch. Div. Chancery Division, English Law Reports. 
 
 Ch. J. Chief Justice. Chief Judge. 
 
 Ch. Pr. Chancery Practice. 
 
 Ch. Pre. or Ch. Prec. Precedents in Chancery. 
 
 Ch. R. or Ch. Repts. Reports in Chancery. 
 
 Ch. R. M. R. M. Charlton's Georgia Reports. 
 
 Ch. Rep. Reports in Chancery ;— Irish Chancery 
 Reports. 
 
 Ch. Sent. Chancery Sentinel, Saratoga, New York. 
 
 Ch. T. U. P. T. U. P. Charlton's Georgia Reports. 
 
 Ch. & CI. Cas. Cripp's Church and Clergy Cases. 
 
 Chal. Op. Chalmer's Colonial Opinions. 
 
 Cham, or Chamb. Chamber Reports, Upper Can- 
 ada. 
 
 Chamb. Ch. Jur. Chambers's Chancery Jurisdic- 
 tion. 
 
 Chamb. Dig. P. H. C. Chambers's Digest of Public 
 Health Cases. 
 
 Chamb. L. <£ T. Chambers on Landlord and Ten- 
 ant.
 
 ABBREVIATION 
 
 31 
 
 ABBREVIATION 
 
 Chamb. Rep. Chancery Chamber Reports, On- 
 tario. 
 
 Chamber. Chamber Reports, Upper Canada. 
 
 Chan. Chaney's Reports, vols. 37-58 Michigan ; — 
 Chancellor ;— Chancery (see Ch.). 
 
 Chanc. Chancery (see Ch.). 
 
 Chance. Chance on Powers. 
 
 Chwnd. Chandler's Reports, Wisconsin ; — Chand- 
 ler's U< ports, vols. 20, 38-44 New Hampshire. 
 
 Chand. Cr. Tr. or Chand. Crim. Tr. Chandler's 
 American Criminal Trials. 
 
 Chand. N. il. Chandler's Reports, New Hamp- 
 shire, vols. 20 and 3S-1I. 
 
 ley. Chaney's Reports, vols. 37-58 Michigan. 
 
 I ... L. Chaplin's Cases on Criminal 
 
 Law. 
 
 Char. Merc. Charta Mercatoria. 
 
 Charl. Pr. Cas. Charley's English Practice Cases 
 (Judicature Act). 
 
 Charl. R. P. Stat. Charley's Real Property Stat- 
 utes. 
 
 Charlt. R. M. R. M. Clnrlton's Georgia Reports. 
 
 Charlt. T. U. P. Charlton's Reports, Georgia. 
 
 Chase. Chase's Decisions by Johnson, U. S. 4th 
 Circuit. 
 
 Chase Tr. Chase's Trial by the U. S. Senate. 
 
 Cher. Cas. Cherokee Case. 
 
 Chest. Cas. Case of the City of Chester, on Quo 
 Warranto. 
 
 Chev. Cheves's Law Reports, South Carolina. 
 
 Chcv. Ch. or Chev. Eq. or Cheves. Cheves's Chan- 
 cery or Eciuity Reports, South Carolina. 
 
 Chic. L. B. Chicago Law Bulletin, Illinois. 
 
 Chic. L. J. Chicago Law Journal. 
 
 Chic. L. Rec. Chicago Law Record. 
 
 Chic. L. T. Chicago Law Times. 
 
 Chic. Leg. Ncus. Chicago Legal News. 
 
 Chip. Chipman's Reports, New Brunswick. 
 
 Chip. Contr. Chipman on Contracts. 
 
 Chip. D. D. Chipman's Reports, Vermont. 
 
 Chip. MS. Reports printed from Chipman's Man- 
 uscript, New Brunswick. 
 
 Chip. N. N. Chipman's Reports, Vermont. 
 
 Chip. W. Chipman's New Brunswick Reports. 
 
 Chit, or Chitt. Chitty's English Bail Court Re 
 ports. 
 
 Chit. App. Chltty on Apprentices and Journey 
 men. 
 
 Chit. Arch. Pr. Chitty's Archbold's Practice. 
 
 Chit. B.C. Chitty's Bail Court Reports, English. 
 
 Chit. Bills. Chitty on Bills. 
 
 Chit.Bl.Comm.orChit.Bla.com. Chitty's Black- 
 stone's Commentaries. 
 
 Chit. Burn's J. Chitty Burn's Justice. 
 
 Chit. Car. Chitty on Carriers. 
 
 Chit. Com. L. or Chit. Com. Law. Chitty on Com- 
 mercial Law. 
 
 Chit. Cont. or Chit. Contr. Chitty on Contracts. 
 
 Chit. Cr. L. or Chit. Crim. Law. Chitty on Criminal 
 Law. 
 
 Chit. Des. Chitty on the Law of Descent. 
 
 Chit. Eq. Dig. Chitty's Equity Digest. 
 
 Chit. F. Chitty's Forms. 
 
 Chit. O. P. or Chit. Gen. Pr. Chitty's General Prac- 
 tice. 
 
 Chit. Jr. Bills. Chitty. Junior, on Bills. 
 
 Chit. L. of N. Chitty's Law of Nations. 
 
 Chit. Med. Jur. Chitty on Medical Jurisprudence. 
 
 Chit. PI. Chitty on Pleading. 
 
 Chit. Pr. or Chit. Prac. Chitty's General Practice. 
 
 Chit. Prec. Chitty's Precedents In Pleading. 
 
 Chit. Prer. Chitty's Prerogatives of the Crown. 
 
 Chit. Rep. Chitty's Reports, English Bail Court 
 
 Chit. St. or Chit. Stat. Chitty's Statutes of Prac- 
 tical Utility. 
 
 Chitt. Chitty's Reports. English Bail Court 
 
 Cho. Cas. Ch. Choice Cases in Chancery. 
 
 Chr. Pr. W. Christie's Precedents of Wills. 
 
 Chr. Rep. Chamber Reports, Upper Canada. 
 
 Chr. Rob. Christopher Robinson's English Admir- 
 alty Reports. 
 
 Christ. B. L. Christian's Bankrupt Laws. 
 
 Churchill £ Br. Sh. Churchill and Bruck on Sher- 
 iffs. 
 
 Chute, Eq. Chute's Equity under the Judicature 
 Act 
 
 Cic. Frag, de Repub. Cicero. Fragmenta de Repub- 
 llca. 
 
 Cin. Law Bui. Cincinnati Law Bulletin, Cincin- 
 nati, Ohio. 
 
 ■lun.Dec. Cincinnati Municipal Deci 
 
 Cin. Rep. or Cine. (Ohio). Cincinnati Superior 
 Court Reports. 
 
 Circuit Court in Equity. 
 
 City C. Rep. or City Ct. R. City Court Reports, 
 New York City. 
 
 City llall Rec. Rogers's City Hall Recorder, New 
 York. 
 
 City Hall Rep. Lumas's City Hall Reporter, New 
 York. 
 
 City Rec. City Record, New York. 
 
 Civ. Code. Civil Code. 
 
 code Prac. Civil Code of Practice. 
 
 Civ. Pro. or Civ. Proc. R. or Civ. Pruc. Rep. (N. 
 Y.). Civil Procedure Reports, New York. 
 
 CI. App. Clark's Appeal Cases, English House of 
 Lords. 
 
 CI. Ass. Clerk's Assistant 
 
 CI. Ch. Clarke's Chancery Reports, N. Y. 
 
 CI. Col. Clark's Colonial Law. 
 
 CI. Cr. L. Clarke, Criminal Law. 
 
 CI. Elec. Clark on Elections. 
 
 CI. Extr. Clarke on Extradition. 
 
 CI. Home. Clerk Home, Scotch Session Cases. 
 
 CI. Home R. Clerk Home Scotch Reports. 
 
 CI. Ins. Clarke on Insurance. 
 
 CI. R. L. Clarke's Early Roman Law. 
 
 CI. £ F. or CI. £ Fin. Clark & Finnelly's Reports. 
 English House of Lords. 
 
 CI. £ Fin. N. S. Clark & Finnelly's Reports, New 
 Series, English House of Lords. 
 
 Clan. H. £ W. Clancy on Husband and Wife. 
 
 CI. £ H. Clarke & Hall's Congressional Election 
 Cases. 
 
 Clan. Mar. Worn. Clancy on Married Women. 
 
 Clar. Pari. Chr. Clarendon's Parliamentary Chron- 
 icle. 
 
 Clark. Clark's Appeal Cases, English House of 
 Lords. 
 
 Clark (Ala.). Clark's Reports, Alabama Reports, 
 vol. 58. 
 
 Clark Dig. Clark's Digest, House of Lords Re- 
 ports. 
 
 CI irk Lease. Clark's Inquiry into the Nature of 
 Leases. 
 
 Clark (Pa.). Clark's Pennsylvania Law Journal 
 Reports. 
 
 Clarfc £ F. or Clark £ Fin. Clark & Finnelly's Re- 
 ports, English House of Lords. 
 
 Clark £ Fin. N. S. Clark & Finnelly's Reports, 
 New Series, English House of Lords. 
 
 Clarke. Clarke's New York Chancery Reports ;— 
 Clarke's edition of vols. 1-8 Iowa ; —Clarke's Re- 
 ports, vols. 19-22 Michigan ;— Clarke's Notes of Cas- 
 es, Bengal. See, also, Clark. 
 
 Clarke (Iowa). Clarke's -Reports, vols. 1-8 Iowa. 
 
 Clarke (Mich.). Clarke's Reports, vols. 19-22 
 Michigan. 
 
 Clarke (N. Y.). Clarke's New York Chancery Re- 
 ports. 
 
 Clarke Adm. Pr. Clarke's Admiralty Practice. 
 
 Clarke Bills. Clarke on Bills, Notes, and Checks. 
 
 Clarke Ch. or Clarke Ch. R. Clarke's New York 
 Chancery Reports. 
 
 Clarke Cr. L. Clarke on Criminal Law. Canada. 
 
 Clarke Ins. Clarke on Insurance, Car 
 
 Clarke Not., or Clarke Not. R. £ 0. Clarke's Notes 
 of Cases, In his Rules and Orders, Bengal. 
 
 Clarke Prax. Clarke's Praxis. 
 
 Clarke £ H. Elec. Cas. Clarke & Hall's Cases of 
 Contested Elections In Congress. 
 
 Clay. Conv. Clayton's Conveyancing. 
 
 Clayt. Clayton's Reports, English York Assize. 
 
 Clcir. Vs et Cout. Cleirac, Da et Coutumes de la 
 Mer. 
 
 Clem. Clemens's Reports, vols. 57-59 Kansas. 
 
 Corp. Sec. Clemens on Corporate Securities. 
 
 Clerk Home. Clerk Home's Decisions, Scotch 
 Court of Session.
 
 ABBREVIATION 
 
 32 
 
 ABBREVIATION 
 
 Clerke Dig. Clerke's Digest, New York. 
 ClcrkePr. Clerke's Praxis Admiralitatis. 
 
 fee Rud. Clerke's Rudiments of American Law 
 and Practice. 
 Clev. Bank. Cleveland on the Banking System. 
 Clev. L. Rec. Cleveland (Ohio) Law Record. 
 Clev. L. Rep'r. Cleveland Law Reporter. 
 Clif. Clifford's United States Circuit Court Re- 
 ports. ' 
 
 Clif. (South.) El. Cas. Clifford's Southwlck Elec- 
 tion Cases. 
 
 Clif. £ R. Clifford & Richard's English Locus 
 Standi Reports. 
 
 Clif. £ Rick. Clifford & Rickard's English Locus 
 Standi Reports. 
 
 Clif. £ St. Clifford £ Stephens's English Locus 
 Standi Reports. 
 Cliff. Clifford's Reports, U. S. 1st Circuit 
 Cliff. El. Cas. Clifford's Election Cases. 
 Clift Ent. Clift's Entries. 
 
 Clin. Dig. Clinton's Digest, New York Reports. 
 Clin. £ Sp. Dig. Clinton & Spencer's Digest. 
 Clk. Mag. Clerk's Magazine, London ;— Rhode Is- 
 land Clerk's Magazine. 
 Clode. Clode's Martial Law. 
 
 Clow L. C. on Torts. Clow's Leading Cases on 
 Torts. 
 dusk. P. T. Cluskey's Political Text Book. 
 Co. County ;— Company ;— Coke's Reports, English 
 King's Bench. 
 Co. B. L. Cooke's Bankrupt Law. 
 Co. Cop. Coke's Copyholder. 
 Co. Ct. Cas. County Court Cases, English. 
 Co. Ct. Ch. County Court Chronicle, English- 
 Co. Ct. Rep. County Court Reports, Pa. 
 Co. Cts. Coke on Courts (4th Inst.). 
 Co. Ent. Coke's Entries. 
 
 Co. G. Reports and Cases of Practice In Common 
 Pleas tempore Anne, Geo. I., and Geo. II., by Sir 
 G. Coke. (Same as Cooke's Practice Reports.) 
 Co. Inst. Coke's Institutes. 
 
 Co. Litt. The First Part of the Institutes of the 
 Laws of England, or a Commentary on Littleton, by 
 Sir Edward Coke. 
 Co. M. C. Coke's Magna Charta (2d Inst.). 
 Co. P. C. Coke's Pleas of the Crown (3d Inst.) ;— 
 Coke's Reports, English King's Bench. 
 Co. Pal. County Palatine. 
 
 Co. PI. Coke's Pleadings (sometimes published 
 separately). 
 Co. R. (N. T.). Code Reporter, New York. 
 Co. Rep. Coke's Reports, English King's Bench. 
 Co. R. N. S. Code Reporter, New Series. 
 Cobb. Cobb's Reports, vols. 4-20 Georgia ;— Cobb'e 
 Reports, vol. 121 Alabama. 
 
 Cobb. Cas. Int. L. Cobbett's Cases on International 
 Law. 
 Cobb. Pari. Hist. Cobbett's Parliamentary History. 
 Cobb. Pol. Reg. Cobbett's Political Register. 
 Cobb Slav. Cobb on Slavery. 
 
 Cobb. St. Tr. Cobbett's (afterwards Howell's) State 
 Trials. 
 
 Cochr. Cochran's Nova Scotia Reports ;— Coch- 
 rane's Reports, vols. 3-10 North Dakota. 
 Cock. Nat. Cockburn on Nationality. 
 Cocfc. Tich. Ca. Cockburn's Charge in the Tich- 
 borne Case. 
 
 Cock. £ Rowe. Cockburn and Rowe's English 
 Election Cases. 
 
 Cocke. Cocke's Reports, vols. 16-18 Alabama;— 
 Cocke's Reports, vols. 14, 15 Florida. 
 
 Cocke (Fla.). Cocke's Reports, Florida Reports, 
 vols. 14, 15. 
 Cocfce Const. His. Cocke's Constitutional History. 
 Cocke Pr. Cocke's Practice in the U. S. Courts. 
 Cod. Codex Justiniani. 
 
 Cod. Jur. Civ. Codex Juris Civilis;— Justinian's 
 Code. 
 Cod. Theodos. Codex Theodorianus. 
 Code. Criminal Code of Canada, 1892. 
 Code Civ. Code Civil, or Civil Code of France. 
 Code Civ. Pro. or Code Civ. Proc. Code of Civil Pro- 
 cedure. 
 Code Civil. Code Civil or Civil Code ol France. 
 Code Comm. Code de Commerce. 
 
 Code Cr. Pro. or Code Cr. Proc. Code of Criminal 
 Procedure. 
 Code de Com. Code de Commerce. 
 Code d'Instr. Crim. Code d'Instruction Criminelle. 
 Code F. Code Forestier. 
 Code I. Code d'Instruction Criminelle. 
 Code La. Civil Code of Louisiana. 
 Code N. or Code Nap. Code Napoleon, French Civil 
 Code. 
 Code P. Code Penal. 
 
 Code Pro. Code de Procedure Civile;— Code ol 
 Procedure. 
 Code Rep. Code Reporter, New York. 
 Code Rep. N. S. or Code R. N. S. Code Reports, New 
 Series. 
 Cof. Dig. Cofer's Digest, Kentucky. 
 Coffey Prov. Dec. Coffey's Probate Decisions. 
 Cogh. Epit. Coghlan's Epitome of Hindu Law 
 Cases. 
 
 Coke. Coke's English King's Bench Reports (cited 
 by parts and not by volume). 
 Coke Inst. Coke's Institutes. 
 Coke Lit. Coke on Littleton. 
 
 Col. Colorado ;— Colorado Reports;— Coldwell's Re- 
 ports, Tennessee;— Coleman's Reports, vols. 99, 101- 
 106, 110-142, Alabama ;— Column. 
 Col. App. Colorado Appeals. 
 
 Col. Cas. Coleman's Cases (ol Practice), New 
 York. 
 Col. C. C. Collyer's English Chancery Cases. 
 
 Col. L. J. Colonial Law Journal, New Zealand. 
 Col. L. Rep. Colorado Law Reporter. 
 Col. Law Review. Columbia Law Review. 
 
 Col. £ Cai. or Col. £ Cai. Cas. Coleman & Caines's 
 Cases, New York. 
 
 Colb. Pr. Colby's Practice. 
 
 Cold, or Coldw. Coldwell's Tennessee Reports. 
 
 Cole. Cole's edition of Iowa Reports ;— Coleman's 
 Reports, vols. 99, 101-106, 110-142 Alabama. 
 
 Cole. Cas. Pr. Coleman's Cases, New York. 
 
 Cole. Dig. Colebrooke's Digest of Hindoo Law. 
 
 Cole Eject. Cole's Law and Practice in Ejectment. 
 
 Cole Inf. Cole on Criminal Information. 
 
 Cole. £ C. Coleman & Caines's Cases, New York. 
 
 Coll. Colles's Parliamentary Cases. 
 
 Coll. or Coll. C. C. Collyer's English Chancery 
 Cases. 
 
 Coll. Cans. Cel. Collection des Causes Celebres. 
 Paris. 
 
 Coll. Contrib. Collier's Law of Contributors. 
 
 Coll. Id. Collinson on the Law Concerning Idiots. 
 
 Coll. Jur. Collectanea Juridica. 
 
 Coll. Min. Collier on Mines. 
 
 Coll. Part. Collyer on Partnership. 
 
 Coll. P. C. or Coll. Pari. Cas. Colles's English Par- 
 liamentary (House of Lords) Cases. 
 
 Coll. Pat. Collier on the Law of Patents. 
 
 Coll. £ E. Bank. Collier and Eaton's American 
 Bankruptcy Reports. 
 
 Colles. Colles's English Parliamentary Cases. 
 
 Collin. Lun. Collinson on Lunacy. 
 
 Colly. Collyer's English Vice Chancellors's Re- 
 ports. 
 
 Colly. Partn. Collyer on Partnerships. 
 
 Colo. Colorado Reports. 
 
 Colq. Colquit's Reports (1 Modern Reports). 
 
 Colq. C. L. Colquhoun's Civil Law. 
 
 Colq. R. Colquit's Reports (1 Modern). 
 
 Colq. Rom. Civil Law. Colquhoun's Roman Civil 
 Law. 
 
 Colt. Coltman, Reg. App. Cas. 
 
 Colt. Reg. Ca. or Colt. Reg. Cas. Coltman'a Regis- 
 tration Cases. 
 
 Colum. Law T. Columbia Law Times. 
 
 Colvil. Colvil's Manuscript Decisions, Scotch 
 Court of Session. 
 
 ^Coin. Comyn's Reports, English King's Bench;— 
 Comberbach's English King's Bench Reports ;— 
 Comstock's Reports, vols. 1-4 New York Court of 
 Appeals;— Communes, or Extravagantes Communes; 
 —Commissioner;— Commentary ;— Blackstone's Com- 
 mentaries. 
 
 Com. B. English Common Bench Reports, by 
 Manning, Granger & Scott. 
 
 Com. B. N. S. English Common Bench Reports, 
 New Series, by Manning, Granger & Scott.
 
 ABBREVIATION 
 
 33 
 
 ABBREVIATION 
 
 Com. Cas. Commercial Cases, England. 
 Com. Cont. Comyn on Contracts. 
 Com. Dig. Comyn's Digest. 
 
 Com. Jour. Journals of the House of Commons. 
 Com. Law. Commercial Law ;— Common Law. 
 Com. L. H. or Com. Law R. or Com. Law Rep. Eng- 
 lish Common Law Reports;— Common Law Reports, 
 published by Spottiswoode. 
 Com. L. & T. Comyn on Landlord and Tenant 
 Com. P. Div. Common Pleas Division, English 
 Law Reports. 
 Com. PI. Common Pleas, English Law Reports. 
 Com. PI. Div. Common Pleas Division, English 
 Law Reports. 
 
 Com. P. Reptr. Common Pleas Reporter, Scran- 
 ton, Penna. 
 Com. U. Comyn on Usury. 
 
 Com. £ Leg. Rep. Commercial and Legal Report- 
 er, Nashville, Tenn. 
 
 Comb. Comberbach's Reports, English King's 
 Bench. 
 Comp. Dec. Comptroller's Decisions. 
 Comp. Laws. Compiled Laws. 
 Comp. St. Compiled Statutes. 
 
 Corns. Comstock's Reports, New York Ct- of Ap- 
 peals Reports, vols. 1-4. 
 Corns. Ex. Comstock on Executors. 
 Comst. Comstock's Reports, New York Court of 
 Appeals, vols. 1-4. 
 
 Comyn. Comyn's Reports, EDglish King's Bench 
 and Common Pleas. 
 Comyns's Dig. Comyns's Digest, English. 
 Con. Conover's Reports, Wisconsin;— Continua- 
 tion of Rolle's Reports (2 Rolle) ;— Connoly, New 
 York Criminal. 
 Con. Cus. Conroy's Custodian Reports. 
 Con. Dig. Connor's Digest. 
 Con. Par. Connell on Parishes. 
 Con. & Law. Connor & Lawson's Reports, Irish 
 Chancery. 
 Com. & Sim. Connor & Simonton's Equity Digest. 
 Cond. Condensed. 
 
 Cond. Ch. R. or Cond. Eng. Ch. Condensed English 
 Chancery Reports. 
 
 Cond. Eccl. or Cond. Ecc. R. Condensed Ecclesias- 
 tical Reports. 
 
 Cond. Eng. Ch. Condensed English Chancery Re- 
 ports. 
 
 Cond. Exch. R. or Cond. Ex. R. Condensed Excheq- 
 uer Reports. 
 
 Cond. Rep. U. S. Peter's Condensed United States 
 Reports. ' 
 Condy Mar. Marshall's Insurance, by Condy. 
 Conf. Cameron & Norwood's Conference Reports, 
 North Carolina. 
 Conf. Chart. Conflrmatio Chartarum. 
 Cong. El. Cas. or Cong. Elect. Cas. Congressional 
 Election Cases. 
 Cong. Rec. Congressional Record, Washington. 
 Congr. Globe. Congressional Globe, Washington. 
 Congr. Rec. Congressional Record, Washington. 
 Conk. Adm. Conkling's Admiralty. 
 Conk. Jur. & Pr. or Conk. Pr. Conkling's Jurisdic- 
 tion and Practice, U. S. Courts. 
 
 Conn. Connecticut; — Connecticut Reports; — Con- 
 noly, New York, Surrogate. 
 Connolly. Connolly, New York Surrogate. 
 Conover. Conover's Reports, vols. 1G-153 Wiscon- 
 sin. 
 Conr. Conroy's Custodian Reports, Irish. 
 Cons, del Mare. Consolato del Mare. 
 Cons. Ord. in Ch. Consolidated General Orders In 
 Chancery. 
 
 Consist, or Consist. Rep. English Conslstorlal Re- 
 ports, by Haggard. 
 
 Consolid. Ord. Consolidated General Orders In 
 Chancery. 
 
 Const. Constitution;— Constitutional Reports, South 
 Carolina, by Mill ;— Constitutional Reports, South 
 Carolina, by Treadway; — Constitutional Reports, 
 vol. 1 South Carolina, by Harper. 
 
 Const. Hist. Hallam's Constitutional History of 
 England. 
 
 Const. N. S. Constitutional Reports (Mill), South 
 Carolina, New Series. 
 
 Bouv.— 3 
 
 Const. Oth. Constltutiones Othonl (found at th» 
 end of Lyndewood's Provinciale). 
 
 Const. S. C. Trcadway's Constitutional Reports, 
 South Carolina. 
 
 Const. (N. S.J 8. C. Mill's Constitutional R 
 New Series, South Carolina. 
 Const. V. 8. Constitution of the United Bta 
 
 t. Feud. Consuetudines Feudorum, or the 
 Book of Forms. 
 Cont. Contra. 
 
 Coo. & Al. Cooke & Alcock'a Irish King's Bench 
 Reports. 
 
 . . Adm. Cook's Vice-Admiralty Reports, 
 Nova Scotia. 
 
 Cooke. Cooke's Cases of Practice, English Com- 
 mon Pleas; — Cooke's Reports, Tennessee. 
 Cooke (Tenn.). Cooke's Reports, Tennessee. 
 Cooke Agr. T. Cooke on Agricultural Tenancies. 
 Cooke B. L. Cooke's Bankrupt Law. 
 Cooke Cop. Cooke's Law of Copyhold Enfran- 
 chisements. 
 Cooke Def. Cooke's Law of Defamation. 
 Cooke I. A. or Cooke, Incl. Acts. Cooke's Inclosure 
 Acts. 
 
 Cooke Pr. Cas. Cooke's Practice Reports, English 
 Common Pleas. 
 
 Cooke Pr. Reg. Cooke's Practical Register of the 
 Common Pleas. 
 
 Cooke £ Al. or Cooke & Ale. Cooke & Alcock's Re- 
 ports, Irish King's Bench. 
 
 Cooke & H. Cooke & Harwood's Charitable Trust 
 Acts. 
 Cooley. Cooley's Reports, vols. 5-12 Michigan. 
 Cooley Const. L. Cooley on Constitutional Law. , 
 Const. Lim. Cooley on Constitutional Lim- 
 itations. 
 Cooley Tax. Cooley on Taxation. 
 Cooley Torts. Cooley on Torts. 
 Coop. Cooper's Tennessee Chancery Reports ;— 
 Cooper's Reports, vols. 21-24 Florida;— Cooper's Eng- 
 lish Chancery Reports tempore Eldon; — Cooper's 
 English Chancery Reports tempore Cottenham;— 
 Cooper's English Chancery Reports tempore Brough- 
 am ; — Cooper's English Practice Cases, Chancery. 
 Coop. (Tenn.). Cooper's Reports, Tennessee. 
 Coop. C. C. or Coop. Cas. Cooper's Chancery Cases 
 temp. Cottenham. 
 
 Coop. C. & P. R. Cooper's Chancery and Practice 
 Reporter, Upper Canada. 
 Coop. Ch. Cooper's Tennessee Chancery Reports. 
 Co-op. Dig. Co-operative Digest, United States 
 Reports. 
 Coop. Eq. PI. Cooper's Equity Pleading. 
 Coop. Inst, or Coop. Jus. Cooper's Institutes of 
 Justinian. 
 Coop. Med. Jur. Cooper's Medical Jurisprudence. 
 Coop. Pr. Cas. Cooper's Practice Cases, English 
 Chancery. 
 
 Coop. Sel. Cas. Cooper's Select Cases tempore El- 
 don, English Chancery. 
 
 Coop. t. Br. or Coop. t. Brough. Cooper's Reports 
 temp. Brougham, English Chancery. 
 
 Coop. t. Cott. or Coop. t. Cotten. Cooper's Cases 
 tempore Cottenham, English Chancery. 
 
 Coop. t. Eld. Cooper's Reports temp. Eldon, Eng- 
 lish Chancery. 
 
 Coop. Tenn. Ch. Cooper's Tennessee Chancery Re- 
 ports. 
 
 Cooper. Cooper's Reports, English Chancery 
 temp. Eldon. 
 Coote Adm. Coote's Admiralty Practice. 
 Coofe Ecc. Pr. Coote's Ecclesiastical Practice. 
 Coote L. & T. Coote's Landlord and Tenant. 
 Coote Mort. Coote on Mortgages. 
 Coofe Pro. Pr. or Coote, Prob.-Pr. Coote's Probate 
 Practice. 
 
 Coote & Tr. Coote & Tristram's Probate Court 
 Practice. 
 Cop. Cop. Copinger on Copyright. 
 Cop. Ind. Pr. Coplnger's Index to Precedents. 
 Cope. Cope's Reports, California. 
 
 Copp L. L. Copp's Public Land Laws. 
 Copp Land. Copp's Land Office Decisions. 
 Copp Land Off. Bull. Copp's Land Office Bulletin. 
 Copp Min. Dec. or Copp U. 8. Min. Dec. Copp's Unit- 
 ed States Mining Du-ioua.
 
 ABBREVIATION 
 
 34 
 
 ABBREVIATION 
 
 Ccpp V. a. Min. L. Copp's U. S. Mineral Land 
 Laws. 
 Cor. Coram;— Cory ton's Bengal Reports. 
 Corb.dDan. Corbett & Daniel's Parliamentary 
 Uiection Cases. 
 Cord Mar. Worn. Cord on Married Women. 
 Com. D. Cornish on Purchase Deeds. 
 Corn. Dig. Cornwell's Digest. 
 Corn. Uses. Cornish on Uses. 
 Corn. Rem. Cornish on Remainders. 
 Cornw. Tab. Cornwall's Table of Precedents. 
 Corp. Jur. Can. Corpus Juris Canonici. 
 Corp. Jur. Civ. Corpus Juris Civilis. 
 Corry. Corryton's Reports, Calcutta. 
 Corvin. Corvinus's Elementa Juris Civilis. 
 Cory. Coryton's Reports, Calcutta. 
 Cory. Cop. Coryton on Copyright. 
 Cory. Pat. Coryton on Patents. 
 Cot. Abr. Cottons Abridgment of the Records. 
 Com. Couper's Justiciary Reports, Scotland. 
 Coul. & F. Waters. Coulston & Forbes on Waters. 
 Counsellor. The Counsellor, New York City. 
 County Ct. Rep. County Court Reports, English. 
 County Ct. Rep. N. S. County Court Reports, New 
 Series, English. 
 County Cts. Ch. County Courts Chronicle, London. 
 County Cts. & Bankr. Cos. County Courts and 
 Bankruptcy Cases. 
 
 Coup, or Cowp. Just. Couper's Justiciary Reports, 
 Scotland. 
 Court CI. V. S. Court of Claim Reports. 
 Court J. & Dist. Ct. Rec. Court Journal and Dis- 
 trict Court Record. 
 ■ Court Sess. Ca. or Court Sess. Cas. Court of Ses- 
 sions Cases, Scotch. 
 
 Court. & Mad. Courteney and Maclean's Scotch 
 Appeals (6-7 Wilson and Shaw). 
 Cout. Dig. Coutlee's Digest, Canada Supreme Court. 
 Cov. Ev. Coventry on Evidence. 
 Cow. Cowen's New York Reports;— Cowper's Eng- 
 lish King's Bench Reports. 
 Cow. Cr. Dig. Cowen's Criminal Digest. 
 Cow. Cr. or Cow. Cr. Rep. Cowen's Criminal Re- 
 ports, New York. 
 Cow. Die. Cowell's Law Dictionary. 
 Cow. Dig. Cowell's East India Digest. 
 Cow. Inst. Cowell's Institutes of Law. 
 Cow. Int. Cowell's Interpreter. 
 Cow. N. Y. Cowen's New York Reports. 
 Cowell. Cowell's Law Dictionary;— Cowell's In- 
 terpreter. 
 Cowp. Cowper's Reports, English King's Bench. 
 Cowp. Cas. Cowper's Cases (in the third volume 
 of Reports In Chancery). 
 
 Cox. Cox's English Chancery Reports ;— Cox's 
 English Criminal Cases ;— Cox's Reports, vols. 25-27 
 Arkansas. 
 
 Corr Am. Tr. M. Cas. Cox's American Trademark 
 Cases. 
 Cox (Ark.). Cox's Reports vols. 25-27 Arkansas. 
 Cox C. C. Cox's English Criminal Cases;— Cox's 
 Crown Cases ;— Cox's County Court Cases. 
 Cox Ch. Cox's English Chancery Cases. 
 Cox Cr. Cas. Cox's English Criminal Cases. 
 Cox Cr. Dig. Cox's Criminal Law Digest. 
 Cox Elect. Cox on Ancient Parliamentary Elec- 
 tions. 
 Cox Eq. Cox's Reports, English Chancery. 
 Cox Gov. Cox's Institutions of the English Gov- 
 ernment. 
 
 Cox Inst. Cox's Institutions of the English Gov- 
 ernment. 
 Cox J. S. Cox on Joint Stock Companies. 
 Cox J. 8. Cas. Cox's Joint Stock Cases. 
 Cox M. C. Cox's Magistrate Cases. 
 Cox, MeC. & H. Cox, McCrae and Hertslett's Coun- 
 ty Court Reports, English. 
 Cox Mag. Ca. Cox's Magistrate Cases. 
 Coa; Man. Tr. M. or Cox Tr. M. Cox's Manual of 
 Trade-Mark Cases. 
 Cox Tr. M. Cas. Cox's American Trade-Mark Cases. 
 Cox d Atk. Cox & Atkinson, English Registration 
 Appeal Reports. 
 Coxe. Coxe's Reports, New Jersey. 
 Coxe & Melm. Coxe & Melmoth MSS. Cases on 
 Fraud, In May on Fraudulent Conveyances. 
 
 Cr. Cranch's Reports, United States Supreme 
 Court ;— Cranch's United States Circuit Court Re- 
 ports;— Craig's Jus Feudale, Scotland. 
 
 Cr. or Cr. C. C. or Cra. or Cra. C. C. Cranch's Re- 
 ports U. S. Circuit Court, Dist. of Columbia. 
 Cr. Cas. Res. Crown Cases Reserved, Law Reports. 
 Cr. Code. Criminal Code. 
 Cr. Code Prac. Criminal Code of Practice. 
 Cr. M. & R. Crompton, Meeson & Roscoe's Eng- 
 lish Exchequer Reports. 
 
 Cr. Pat. Dec. Cranch's Decisions on Patent Ap- 
 peals. 
 
 Cr. S. d P. Craigie, Stewart & Paton's Scotch 
 Appeal Cases (same as Paton). 
 
 Cr. & Dix. Crawford & Dix's Irish Circuit Court 
 Cases. 
 
 Cr. & Dix Ab. Cas. Crawford & Dix's (Irish) 
 Abridged Notes of Cases. 
 
 Cr. & Dix C. C. Crawford & Dix's Irish Circuit 
 Court Cases. 
 Cr. & J. Crompton & Jervis. 
 
 Cr. & M. Crompton & Meeson's English Exchequer 
 Reports. 
 
 Cr. & Ph. Craig & Phillips's English Chancery 
 Reports. 
 
 Cr. & St. Craigie and Stewart, House of Lords 
 (Sc.) Reports. 
 Cra. Cranch's Reports, U. S. Supreme Court. 
 Cra. C. C. Cranch's Reports, U. S. Circ. Court, 
 Dist. of Col. 
 
 Crab. Crabbe's United States District Court Re- 
 ports. 
 
 Crabb Com. L. or Crabb Com. Law. Crabb on the 
 Common Law. 
 Crabb Conv. Crabb's Conveyancing. 
 Crabb. Dig. Crabb's Digest of Statutes from Mag- 
 na Charta to 9 & 10 Victoria. 
 
 Crabb, Eng. Law. Crabb's History of the English 
 Law. 
 
 Crabb Hist, or Crabb Hist. Eng. Law. Crabb's His- 
 tory of the English Law. 
 
 Crabb R. P. or Crabb Real Prop. Crabb on the Law 
 of Real Property. 
 
 Crabb, Technol. Diet. Crabb's Technological Dic- 
 tionary. 
 
 Crabbe. Crabbe's United States District Court Re- 
 ports ;— Crabbe's Reports, District Court of U. S., 
 Eastern District of Penna. 
 Craig Pr. Craig's Practice. 
 
 Craig & P. or Craig & Ph. Craig and Phillip's Eng- 
 lish Chancery. 
 
 Craig. & St. Craigie, Stewart and Paton's English 
 House of Lords, Appeals from Scotland. 
 Craigius, Jus Feud. Craigius Jus Feudale. 
 Craik or Craik C. C. Craik's English Causes C61e- 
 bres. 
 Cranch. Cranch's Reports, U. S. Supreme Court. 
 Cranch C. C. or Cranch D. C. Cranch's Reports, U. 
 S. Circuit Ct., District of Columbia. 
 Cranch Pat. Dec. Cranch's Patent Decisions. 
 Crane. Crane's Reports, vols. 22-29 Montana. 
 Craw. Crawford's Reports, vols. 53-69, 72-101 Ar- 
 kansas. 
 
 Craw. & D. Crawford and Dix's Reports, Irish 
 Circuit Cases. 
 
 Craw. & D. Abr. C. Crawford and Dix's Abridged 
 Cases, Ireland. 
 Creasy (Ceylon). Creasy 's Ceylon Reports. 
 Creasy Col. C. Creasy's Colonial Constitutions. 
 Creasy Int. L. Creasy on International Law. 
 Cress. Ins. Cas. or Cressw. Ins. Cas. Cresswell's 
 English Insolvency Cases. 
 Crim. Con. Criminal Conversation, Adultery. 
 Crim. L. Mag. or Crim. Law Mag. Criminal Law 
 Magazine, Jersey City, New Jersey. 
 Crim. L. Rec. Criminal Law Recorder. 
 Crim. L. Rep. Criminal Law Reporter. 
 Crim. Rec. Criminal Recorder, Philadelphia ,— 
 Criminal Recorder, London ;— Criminal Recorder, 
 vol. 1 Wheeler's New York Criminal Reports. 
 
 Cripp Ch. Cas. or Cripp's Ch. Cas. Cripp's Church 
 Cases. 
 Cripp Ecc. L. Cripp's Ecclesiastical Law. 
 Critch. Crltchfleld's Reports, vols. 5-21 Ohio 
 I State.
 
 ABBREVIATION 
 
 35 
 
 ABBREVIATION 
 
 Cro. Croke's English King's Bench Reports ;— 
 Keilway's English King's Bench Reports by Serj. 
 Croke. 
 
 Cro. Car. Croke's Reports temp. Charles I. (3 
 Cro.). 
 
 Cro. Eliz. Croke's Reports temp. Elizabeth (1 
 Cro.). 
 
 Cro. Jac. Croke's English King's Bench Reports 
 tempore James (Jacobus) I. (2 Cro.). 
 
 Crock. Notes. Crocker's Notes on Common Forms. 
 
 Crock. Slier. Crocker on Bherll 
 
 Crockford. English Maritime Law Reports, pub- 
 lished by Crockford. 
 
 Cromp. Star Chamber Cases by Crompton. 
 
 Cromp. Cts. Crompton on Courts. 
 
 p. Exch. R. Crompton's Exchequer Reports, 
 English. 
 
 Cromp. J. C. or Cromp. Jur. Crompton's Jurisdic- 
 tion of Courts. 
 
 Cromp. M. d R. Crompton, Meeson and Roscoe's 
 Reports, English Exchequer. 
 
 Cromp. R. d C. Pr. Crompton's Rules and Cases of 
 Practice. 
 
 Cromp. d J. or Cromp. d Jerv. Crompton and Jer- 
 vis's Reports, English Exchequer. 
 
 Cromp. d M. or ( tea. Crompton & Mee- 
 
 son's Reports, English Exchequer. 
 
 Crosw. Pat. Ca. Croswell's Patent Cases. 
 
 Cross Lien. Cross on Liens. 
 
 Crounse. Crounse's Reports, vol. 3 Nebraska. 
 
 Crown C. C. Crown Circuit Companion. 
 
 Crowth. or Crowther (Ceylon). Crowther's Ceylon 
 Reports. 
 
 Cruise Dig. or Cruise R. P. Cruise's Digest of the 
 Law of Real Property. 
 
 Cruise liitles. Cruise on Titles of Honor. 
 
 Cruise Uses. Cruise on Uses. 
 
 Crump Ins. or Crump Mar. Ins. Crump on Marine 
 Insurance. 
 
 Crumrine. Crumrine's Reports, vols. 116-146 Penn- 
 sylvania. 
 
 Ct. App. N. Z. Court of Appeals Reports, New 
 Zealand. 
 
 Ct. CI. or Ct. of CI. Court of Claims, United States. 
 
 Ct. of App. Court of Appeals. 
 
 Ct. of Err. Court of Error. 
 
 Ct. of Gen. Sess. Court of General Sessions. 
 
 Ct. of Sess. Court of Session. 
 
 Ct. of Spec. Sess. Court of Special Sessions. 
 
 Cujacius. Cujacius, Opera, quae de Jure fecit, etc. 
 
 Cul. Culpabilis, Guilty. 
 
 Cull. B. L. Cullcn's Bankrupt Law. 
 
 Cum. C. L. Cumin's Civil Law. 
 
 Cum. & Dun. Rem. Tr. Cummins & Dunphy's Re- 
 markable Trials. 
 
 Cummins. Cummins's Reports, Idaho. 
 
 Cun. or Cunn. Cunningham's Reports, English 
 King's Bench. 
 
 Cun. Bills of Ex. Cunningham on Bills of Ex- 
 change. 
 
 Cun. Diet. Cunningham's Dictionary. 
 
 Cunn. or Cunningham. Cunningham's English 
 Bench Reports. 
 
 Cur. Curtis' United States Circuit Court Re- 
 ports ;— Curia. 
 
 Cur. Adv. Vult. Curia Advisare Vult. 
 
 Cur. Can. Cursus Cancellarlre. 
 
 Cur. Com. Current Comment and Legal Miscel- 
 lany. 
 
 Cur. Dec. Curtis's Decisions, United States Su- 
 preme Court. 
 
 Cur. Ov. Ca. Curwen's Overruled Cases, Ohio. 
 
 Cur. Phil. Curia Phlllpplca. 
 
 Cur. Scacc. Currus Scaccaril, 
 
 Current Com. Current Comment and Legal Mis- 
 cellany. 
 
 Curry. Curry's Reports, Louisiana Reports, vols. 
 6-19. 
 
 Curt. Curtis' United States Circuit Court Re- 
 ports ; — Curteis' English Ecclesiastical Reports. 
 
 Curt. Adm. Dig. Curtis' Admiralty Di 
 
 Curt. C. C. Curtis' United States Circuit Court 
 Decisions. 
 
 Cwrf. Com. Curtis' Commentaries. 
 
 Curt. Cond. Curtis' (Condensed) Decisions, United 
 States Supreme Court. 
 
 Curt. Cop. Curtis on Copyrights. 
 
 Curt. Dec. Curtis' United States Supreme Court 
 Decisions. 
 
 Curtis' Digest, United States. 
 
 Curt. tec. Curteis' English Ecclesiastical Reports. 
 
 Curt. Eq. Prec. Curtis' Equity I J i 
 
 Curt. Jur. Curtis on the Jurisdiction of the U. 8. 
 Courts. 
 
 Curt. Mcr. S. Curtis on Merchant Seamen. 
 
 Curt. Pat. Curtis on Patents. 
 
 Curtis. Curtis' United States Circuit Court Re- 
 ports. 
 
 Curw. Curwen's Overruled Cases ;— Curwen's 
 Statutes of Ohio. 
 
 Curw. Abs. Tit. Curwen on Abstracts of Title. 
 
 Curio. L. O. Curwen's Laws of Ohio 1S">4, 1 vol. 
 
 Curw. R. S. Curwen's Revised Statutes of Ohio. 
 
 Cush. Cushing's Massachusetts Reports; — Cush- 
 man's Mississippi Reports. 
 
 Cush. Elec. Cos. Cushing's Election Cases In Mas- 
 sachusetts. 
 
 Cush. Man. Cushing's Manual. 
 
 Cush. Pari. L. Cushing's Parliamentary Law. 
 
 Cush. Trust. Pr. Cushing on Trustee Process, or 
 Foreign Attachment. 
 
 Cushing. Cusbing's Massachusetts Reports. 
 
 Cush m. or Cushjnan. Cushman's Reports, Missis- 
 sippi Reports, vols. 23-29. 
 
 Cust. de Norm. Custome de Normandie. 
 
 Cust. Rep. Cust-; ; istical Reports. 
 
 Cutl. Cutler on Naturalization. 
 
 Cutl. Ins. L. Cutler's Insolvent Laws of Massachu- 
 setts. 
 
 Cut. Pat. Cos. Cutler's Trademark and Patent 
 Cases, 11 vols. 
 
 Cyc. Cyclopa?dia of Law and Procedure. 
 
 D. Decree. Decret. Dictum ;— Digest, particular- 
 ly the Digest of Justinian ; — Dictionary, particu- 
 larly Morison's Dictionary of the Law of Scotland; 
 — Delaware ;— Dallas's United States and Pennsyl- 
 vania Reports;— Denio's Reports, New York;— Dun- 
 lop, Bell & Murray's Reports, Scotch Session Cases 
 (Second Series) ;— Digest of Justinian, 50 books, 
 never been translated into English;— Disney, Ohio; 
 —Divisional Court; — Dowling, English ;— Dominion 
 of Canada. 
 
 D. B. Domesday Book. 
 
 D. C. District Court. District of Columbia. 
 
 D. C. L. Doctor of the Civil Law. 
 
 D. Chip. D. Chipman's Reports, Vermont 
 
 D. Dec. Dix's School Decisions, New York. 
 
 D. F. & J. De Gex, Fisher, and Jones's Reports, 
 English Chancery. 
 
 D. G. De Gex;— De Gex's English Bankruptcy Re- 
 ports. 
 
 D. O. F. d J. De Gex, Fisher, & Jones's English 
 Chancery Reports. 
 
 D. O. F. d J. B. De Gex, Fisher, & Jones's English 
 Bankruptcy Reports. 
 
 D. G. J. d S. De Gex, Jones & Smith's English 
 Chancery Reports. 
 
 D. G. J. d S. B. De Gex, Jones & Smith's English 
 Bankruptcy Reports. 
 
 D. G. M. d G. De Gex, Macnaghten, & Gordon's 
 English Chancery Reports. 
 
 D. G. M. A (J. Li- De Qex, Macnaghten, & Gordon's 
 English Bankruptcy Reports. 
 
 D. J. d S. De Gex, Jones, and Smith's Reports, 
 Euglish Chancery. 
 
 D. M. d G. De Gex, Macnaghten, and Gordon's 
 Reports, English Chancery. 
 
 D.N. 8. Dowling's R English 
 
 Bail Court ;— Dow, New Seri 
 
 lish Iluuse of Lords Cases) ;— Dowling's Practice 
 Cases, New Series, English. 
 
 D. P. Domus Proccrum, House of Lords. 
 
 D.P.B. Dampil r P Bee .1. P. B. 
 
 D. P. C. Dowling's Practice Cases, Old Series. 
 
 D. Pr. Darling's Practioe, Court of Session. 
 
 D. S. Deputy SI. 
 
 D. S. B. Debit sans breve. 
 
 D. d B. or D. d Li. C. C. Dearsly & Bell's English 
 Crown Cases, Reserved.
 
 ABBREVIATION 
 
 36 
 
 ABBREVIATION 
 
 D. d C. Dow and Clark's English House of Lords 
 (Parliamentary Cases). 
 
 D. d C. or D. d Ch. or D. d Chit. Deacon and Chit- 
 ty's Bankruptcy Cases, English. 
 
 D. d E. Durnford and East, English King's Bench 
 Term Reports. 
 
 D. d J. De Gex and Jones's Reports, English 
 Chancery. 
 
 D. d J. B. De Gex and Jones's English Bankrupt- 
 cy Reports. 
 
 D. d L. Dowllng and Lowndes's English Bail 
 ZJourt Reports. 
 
 D. d M. Davison and Merivale's Reports, English 
 Queen's Bench. 
 
 D. d P. Dennison and Pearce's Crown Cases, Eng- 
 lish. 
 
 D. d R. Dowling and Ryland's Reports, English 
 King's Bench. 
 
 D. d R. M. C. Dowling and Ryland's Magistrate 
 Cases. 
 
 D. d R. N. P. or D. d R. N. P. C. Dowling & Ry- 
 land's English Nisi Prius Cases. 
 
 D. d S. Drewry & Smale's Chancery Reports;— 
 Doctor and Student;— Deane and Swabey. 
 
 D.dSm. Drew and Smale's English V. C. Re- 
 ports. 
 
 D. d Sw. Deane and Swabey, English Ecclesiasti- 
 cal Reports. 
 
 D. d W. Drury & Walsh's Irish Chancery Re- 
 ports;— Drury & Warren's Irish Chancery Reports. 
 D. d War. Drury and Warren's Reports, Irish 
 Chancery. 
 Dag. Cr. L. Dagge's Criminal Law. 
 Dak. Dakota ;— Dakota Territory Reports. 
 Dal. Dallas's United States Reports ;— Dalison's 
 English Common Pleas Reports (bound with Ben- 
 loe);— Dalrymple's Scotch Session Cases. 
 
 Dal. Coop. Dallas's Report of Cooper's Opinion 
 on the Sentence of a Foreign Court of Admiralty. 
 Dale. Dale's Reports, vols. 2-4 Oklahoma. 
 Dale Ecc. Dale's Ecclesiastical Reports, English. 
 Dale Leg. Rit. Dale's Legal Ritual (Ecclesiasti- 
 cal) Reports. 
 
 Dalison. Dalison's English Common Pleas Re- 
 ports (bound with Benloe). 
 
 Dall. Dallas's Reports, U. S. Supreme Court and 
 Pennsylvania Courts. 
 
 Dall. Dec. or Dall. Dig. Dallam's Texas Decisions, 
 printed originally in Dallam's Digest. 
 Dall. L. Dallas's Laws of Pennsylvania. 
 Dall. in Keil. Dallison in Keilway's Reports, Eng- 
 lish King's Bench. 
 
 Dall. S. C. Dallas's United States Supreme Court 
 Reports. 
 Dall. Sty. Dallas's Styles, Scotland. 
 Dall. (Tex.). Dallam's Texas Reports. 
 Dall. Tex. Dig. Dallam's Texas Digest. 
 Dallam. Dallam's Decisions, Texas Supreme Court 
 Dallas. Dallas's Pennsylvania and United States 
 Reports. 
 
 Dalloz. Dictionnaire general et raisonne de leg- 
 fslatiou, de doctrine, et de jurisprudence, en matiSre 
 civile, commerciale, criminelle, administrative, et 
 de droit public. 
 
 Dalr. Dalrymple's Decisions, Scotch Court of 
 Session ;— (Dalrymple of) Stair's Decisions, Scotch 
 Court of Session;— (Dalrymple of) Hailes's Scotch 
 Session Cases. 
 Dalr. Ent. Dalrymple on the Polity of Entails. 
 Dalr. F. L. or Dalr. Feud. Pr. or Dalr. Feud. 
 Prop. Dnlrymple on Feudal Property. 
 Dalr. Ten. Dalrymple on Tenures. 
 Dalrymple. (Sir Hew) Dalrymple's Scotch Ses- 
 sion Cases ;— (Sir David Dalrymple of) Hailes's 
 Scotch Session Cases;— (Sir James Dalrymple of) 
 Stair's Scotch Session Cases. See, also, Dal. and 
 Dalr. 
 Dalt. Just. Dalton's Justice. 
 Dalt. Sh. Dalton's Sheriff. 
 
 Daly. Daly's Reports, New York Common Pleas. 
 Dampier MSS. Dampier's Paper Book, Lincoln's 
 Inn Library. 
 D'An. D'Anvers's Abridgment. 
 
 Dan. Daniell's Exchequer and Equity Reports;— 
 Dana's Kentucky Reports ; — Danner's Reports, vol. 
 42 Alabama. 
 
 Dan. Ch. Pr. Daniel's Chancery Practice. 
 Dan. Neg. Inst. Daniel's Negotiable Instruments. 
 Dan. Ord. Danish Ordinance. 
 Dan. T. M. Daniels on Trademarks. 
 Dan. d LI. or Dan. d Lid. Danson & Lloyd's Mer- 
 cantile Cases. 
 Dana. Dana's Reports, Kentucky. 
 Dane Abr. Dane's Abridgment. 
 Daniel, Neg. Inst. Daniel's Negotiable Instru- 
 ments. 
 Daniell, Ch. Pr. Daniell's Chancery Practice. 
 Dann. Dann's Arizona Reports ; — Danner's Re- 
 ports, vol. 42 Alabama; — Dann's California Reports. 
 Danner. Danner's Reports, Alabama Reports, 
 vol. 42. 
 
 Dans, d L. or Dans, d Lid. Danson & Lloyd's Eng- 
 lish Mercantile Cases. 
 D'Anv. Abr. D'Anvers's Abridgment. 
 Darb. d B. Darby & Bosanquet on Limitations. 
 Darl. Pr. Ct. Sess. Darling, Practice of the Court 
 of Session (Scotch). 
 Dart. Col. Cas. Report of Dartmouth College Case. 
 Dart Vend. Dart on "Vendors and Purchasers. 
 Das. Dasent's Bankruptcy and Insolvency Re- 
 ports ; — Common Law Reports, vol. 3. 
 Dass. Dig. Dassler's Digest Kansas Reports. 
 Dauph. Co. Rep. Dauphin County Reporter, Penn- 
 sylvania. 
 
 Dav. Daveis's United States District Court Re- 
 ports (now republished as 2 Ware); — Davy's or 
 Davies's Irish King's Bench and Exchequer Re- 
 ports; — Davies's English Patent Cases; — Davis's Re- 
 ports (Abridgment of Sir Edward Coke's Reports); 
 — Davis's Reports, vol. 2 Hawaii ; — Davis's United 
 States Supreme Court Reports. 
 
 Dav. Coke. Davis's Abridgment of Coke's Re- 
 ports. 
 Dav. Con. or Dav. Conv. Davidson's Conveyancing. 
 Dav. Dig. Davis's Indiana Digest. 
 Dav. Eng. Ch. Can. Davis's English Church Canon. 
 Dav. Ir. or Dav. Ir. K. B. Davies's Reports, Irish 
 King's Bench. 
 Dav. Jus. Davis's Justice of the Peace. 
 Dav. Pat. Cas. Davies's Patent Cases, English 
 Courts. 
 
 Dav. Free, or Dav. Free. Conv. Davidson's Prece- 
 dents in Conveyancing. 
 
 Dav. Rep. Davies's (Sir John) Reports, King's 
 Bench, Ireland. 
 
 Dav. (U. S.). Daveis's Reports, U. S. Dist. of 
 Maine (2d Ware). 
 
 Dav. d M. or Dav. d Mer. Davison & Merivale's 
 Reports, English Queen's Bench. 
 
 Daveis. Daveis's United States District Court Re- 
 ports (republished as 2 Ware). 
 
 Davidson. Davidson's Reports, vols. 92-H1 North 
 Carolina. 
 
 Davics. Davies's (or Davis's or Davys's> Irish 
 King's Bench Reports. 
 
 Davis. Davis's Hawaiian Reports ;— Davies's (or 
 Davys's) Irish King's Bench Reports;— Davis's Re- 
 ports, vols. 108-176 United States Supreme Court. 
 
 Davis (J.C.B.). Davis's United States Supreme 
 Court Reports. 
 
 Davis Bldg. Soc. or Davis Build. Davis's Law of 
 Building Societies. 
 Davis Rep. Davis's Reports, Sandwich Island. 
 Daw. Arr. Dawe on the Law of Arrest in Civil 
 Cases. 
 
 Daw. Land. Pr. Dawe's Epitome of the Law of 
 Landed Property. 
 
 Daio. Real Pr. Dawe's Introduction to the Knowl- 
 edge of the Law on Real Estates. 
 
 Day. Day's Connecticut Reports;— Connecticut Re- 
 ports, proper, reported by Day. 
 Day Elect. Cas. Day's Election Cases. 
 Day Pr. Day's Common Law Practice. 
 Dayt. Surr. Dayton on Surrogates. 
 Dayt. Term Rep. Dayton Term Reports, Dayton, 
 Ohio. 
 De Bois. Halluc. De Boismont on Hallucinations. 
 De Burgh Mar. Int. L. De Burgh on Maritime In- 
 ternational Law. 
 
 De Colyar's Quar. De Colyar's Law of Quaran- 
 tine.
 
 ABBREVIATION 
 
 37 
 
 ABBKKVIATION 
 
 D'Evcs. D'Ewes's Journal and Parliamentary 
 Collection. 
 
 De G. De Gex's Reports, English Bankruptcy. 
 
 De G. I' 1 . & J . De Gex, Fisher, & Jones' Reports, 
 English Chancery. 
 
 De G. F. dc J. B. App. or Dc G. F. d J. By. De 
 Gex, Fisher, & Jones's Bankruptcy Appeals, Eng- 
 lish. 
 
 Dc G. J. d S. De Gex, Jones, & Smith's Reports, 
 English Chancery. 
 
 De G. J. d S. Bankr. or De G. J. d S. By. De Gex, 
 Jones, & Smith's Bankruptcy Appeals, English. 
 
 M. d G. De Gex, Macnaghten, & Gordon's 
 
 English Bankruptcy Reports;— De Gex, Macnaghten, 
 
 :>>n's English Chancery Reports. 
 
 :. M. d G. Bankr. or De G. M. dc G. By. De 
 
 Gex, Macnaghten, & Gordon's Bankruptcy Appeals, 
 
 English. 
 
 De G. dc J. De Gex &. Jones's Reports, English 
 Chancery. 
 
 De G. dc J. Bankr. or De Q. d J. By. De Gex & 
 Jones's English Bankruptcy Appeals. 
 
 De G. d Sm. De Gex 6 Smale's Reports, English 
 Chanet ry. 
 
 De Gex. De Gex's English Bankruptcy Reports. 
 
 De Gex, M. d G. De Gex, Macnaghten & Gordon's 
 Reports, English. 
 
 De H. M. L. or De Hart, Mil. Law. De Hart on 
 Military Law. 
 
 De Jure Mar. Malloy's De Jure Maritimo. 
 
 De L. Const. De Lolme on the English Constitu- 
 tion. 
 
 Dea. Deady's United States District Court Re- 
 ports. 
 
 Dea. d Chit. Deacon & Chitty's English Bank- 
 ruptcy Reports. 
 
 Dea. d Sw. Deane & Swabey's Reports, English 
 Ecclesiastical Courts; — Deane & Swabey's Reports, 
 Probate and Divorce. 
 
 Deac. Deacon's Reports, English Bankruptcy. 
 
 Deac. Bankr. Deacon on Bankruptcy. 
 
 Deac. & C. or Deac. dc Chit. Deacon & Chitty's Eng- 
 lish Bankruptcy Reports. 
 
 Dcady. Deady's Reports, U. S. Dist. of Oregon. 
 
 Dean Med. Jur. Dean's Medical Jurisprudence. 
 
 Deane. Dearie (& Swabey's) English Probate and 
 Divorce Reports ;— Deane's Reports vols. 24-26 Ver- 
 mont 
 
 Deane Conv. Deane's Conveyancing. 
 
 Deane Ecc. or Deane Ecc. Rep. Deane & Swabey's 
 .English Ecclesiastical Reports. 
 
 Deane N. Deane on Neutrals. 
 
 Deane d Sw. Deane & Swabey's English Ecclesi- 
 astical Reports. 
 
 Dears, or Dears. C. C. or Dears. d B. or Dears. d 
 B. C. C. Dearsly's & Bell's English Crown Cases 
 Reserved. 
 
 Dcas d And. Deas & Anderson's Scotch Court of 
 Session Cases. 
 
 Deb. Jud. Debates on the Judiciary. 
 
 Dec. Com. Pat. Decisions of the Commissioner of 
 Patents. 
 
 Dec. Dig. American Digest, Decennial Edition. 
 
 Dec. Joint Com. Decisions of the Joint Commis- 
 sion. 
 
 Dec. O. Ohio Decisions. 
 
 Dec. t. H. dc M. Decisions In Admiralty tempore 
 Hay & Marriott. 
 
 Decen. Dig. American Digest, Decennial Edition. 
 
 Deft. Defendant. 
 
 Degge. Degge's Parson's Companion. 
 
 Del. Delaware ; — Delaware Reports; — Delane's 
 English Revision Cases. 
 
 Del. Ch. Delaware Chancery Reports, by Bates. 
 
 Del. Co. Delaware County Reports, Pennsylvania. 
 
 Del. Cr. Cos. Delaware Criminal Cases, by Hous- 
 ton. 
 
 Del. El. Cos. Delane's English Election (Revi- 
 sion) Cases. 
 
 Deleg. Court of Delegates. 
 
 Dclchanty. Delehanty's New York Miscellaneous 
 Reports. 
 
 De Lolme, Eng. Const. De Lolme on the English 
 Constitution. 
 
 Dem. or Dem. Svrr. Demarest's New York Surro- 
 gate Reports. 
 
 Demol. or Demol. C. N. Demolombe's Code Napo- 
 leon. 
 
 Den. Denlo's New York Reports ; — Denis's Re- 
 ports, vols. 32-46 Louisiana Annual ;— D 
 
 Den. or Denio. Denlo's Reports. New York. 
 
 Den. C. C. Denison's English Crown C 
 
 Den. dc P. Denison & Pearce's English Crown 
 Cases, vol. 2 Denison. 
 
 Denio. Denlo's New York Rep 
 
 Denis. Denis's Reports, vols. 32-46 Louisiana. 
 
 Dens. Denslow's Notes to second edition, vols. 1-3 
 Michigan Reports. 
 
 Denver L. J. Denver Law Journal. 
 
 Denver L. N. Denver Legal News. 
 
 De Orat. Cicero, De Oratore. 
 
 Des., Dess., or Dessaus. or Desaus. Eq. Dessaus- 
 sure's Reports, South Carolina. 
 
 Dest. Cal. Dig. Desty's California Digest. 
 
 Desty Com. dc Nav. Desty on Commerce and Navi- 
 gation. 
 
 Desty Fed. Const. Desty on the Federal Constitu- 
 tion. 
 
 Desty Fed. Proc. Desty's Federal Procedure. 
 
 Desty Sh. dc Adm. Desty on Shipping and Admir- 
 alty. 
 
 Dev. Devereux's North Carolina Law Reports ;— 
 Devereux's Reports, United States Court of Claims. 
 
 Dev. C. C. or Dev. Ct. CI. Devereux's Reports, 
 United States Court of Claims. 
 
 Dev. Eq. Devereux's Equity Reports, North Caro- 
 lina, vols. 16-17. 
 
 Dev. L. or Dev. (N. C). Devereux's Law Reports, 
 North Carolina, vols. 12-15. 
 
 Dev. dc B. Eq. or Dev. d Bat. Eq. Devereux & Bat- 
 tle's Equity Reports, North Carolina. 
 
 Dev. d B. L. or Dev. d Bat. Devereux & Battle's 
 Law Reports, North Carolina. 
 
 Dew. Dewey's Reports, vols. 60-70 Kansas ; — Dew- 
 ey's Kansas Court of Appeals Reports. 
 
 De Witt. De Witt's Reports, vols. 24-42 Ohio 
 State. 
 
 Di.orDy. Dyer's English Reports, King's Bench. 
 
 Dial, de Scac. Dialogus de Scaccario. 
 
 DibbF. Dibb's Forms of Memorials. 
 
 Dice (Ind.). Dice's Report , rola. 71-99 Indiana. 
 
 Dicey, Const. Dicey, Lectures Introductory to th« 
 Study of the Law of the English Constitution. 
 
 Dicey Dom. Dicey on Domicll. 
 
 Dicey Part. Dicey on Parties to Actions. 
 
 Dick. Dickens's English Chancery Reports;— Dick- 
 inson's Reports, vols. 46-59 New Jersi j 
 
 Dick. Ch. Prec. Dickinson's Chancery Precedents. 
 
 Dick. Pr. or Dick. Or. &ess. Dickinson's Practice of 
 the Quarter and other Sessions. 
 
 Dickson Ev. Dickson's Law of Evidence. 
 
 Diet. Dictionary. 
 
 Dig. Digest ;— Digest of Justinian ;— Digest of 
 Writs. 
 
 Dig. Proem. Digest of Justinian, Proem. 
 
 Digby R. P. Dlgby on Real Property. 
 
 Dil. or Dill. Dillon's United States Circuit Court 
 Reports. 
 
 Dill. Mun. Corp. Dillon on Municipal Corpora- 
 tions. 
 
 Dirl. Dlrleton's Decisions, Scotch Court of Ses- 
 sion. 
 
 Dis. or Disn. Disney's Superior Court Report' 
 Cincinnati, Ohio. 
 
 Disn. Gam. Disney's Law of Gaming. 
 
 Dist. Rep. District Reports. 
 
 Div. Division, Courts of the High Court of Ju«- 
 tice. 
 
 Div. d Matr. C. Divorce and Matrimonial Causes 
 Court. 
 
 Doer. PI. Doctrina Placitanda. 
 
 t. & Stud. Doctor and Student 
 
 Dod. or Dods. Dodson's English Admiralty Re- 
 ports. 
 
 Dod. Adm. Dodson's Reports, English Admiralty 
 Courts. 
 
 Dods. Dodson's Reports, English Admiralty 
 Courts. 
 
 Dom. or Domat. Domat on Civil Law. 
 
 Dom. Book. Domesday Book.
 
 ABBREVIATION 
 
 38 
 
 ABBREVIATION 
 
 Dom. Proc. Domus Procerum. In the House of 
 Lords. 
 
 Domat. Domat on Civil Law. 
 
 Do mat Supp. au Droit Public. Domat, Les Lois Civ- 
 iles, Le Droit Public, etc. Auginentee des 3e et 
 •ie livres du Droit Public, par M. de Hericourt, etc. 
 
 Domes, or Domesd. or Domesday. Domesday Book. 
 
 Donaker. Donaker's Reports, vol. 151 Indiana. 
 
 Donn. Donnelly's Reports, English Chancery; — 
 Donnelly's Irish Laud Cases. 
 
 Dor. Q. /;. or Dorion (Quebec). Dorion's Quebec 
 Queen's Bench Reports ;— (Dec. de la Cour D'Appel). 
 
 Dos PassoSj Stock-Brok. Dos Passos on Stock- 
 Brokers and Stock Exchanges. 
 
 Doug. Douglas's Michigan Reports ;— Douglas's 
 English King's Bench Reports ;— Douglas's English 
 Election Cases. 
 
 Doug. El. Ca. or Doug. El. Cos. Douglas's English 
 Election Cases. 
 
 Dow.' Dow's House of Lords (Parliamentary) 
 Cases, same as Dow's Reports ; — Dowling's English 
 Practice Cases. 
 
 Dow N. S. Dow & Clark's English House of 
 Lords Cases. 
 
 Dow P. C. Dow's Parliamentary Cases ; — Dowling's 
 English Practice Cases. 
 
 Dow & C. Dow & Clark's English House of Lords 
 Cases. 
 
 Dow. <£- L. Dowling & Lowndes's English Bail 
 Court Reports. 
 
 Dow. & Ry. Dowling & Ryland's English King's 
 Bench Reports ; — Dowling & Ryland's English Nisi 
 Prius Cases. 
 
 Dow. & Ry. M. C. Dowling & Ryland's English 
 Magistrates' Cases. 
 
 Dow. <£- Ry. N. P. Dowling & Ryland's English Nisi 
 Prius Cases. (Often bound at end of vol. 1 Dowling 
 & Ryland's King's Bench Reports.) 
 
 Dowl. Dowling's English Bail Court (Practice) 
 Cases. 
 
 Dowl. N. S. Dowling's English Bail Court Reports, 
 New Series. 
 
 Dowl. P. C. or Dowl. Pr. C. Dowling's English Bail 
 Court (Practice) Ca?es. 
 
 Dowl. Pr. C. N. S. Dcwling's Reports, New Series, 
 English Practice Cases. 
 
 Dowl. & L. or Dowl. & Lownd. Dowling & Lown- 
 des's English Bail Court and Practice Cases. 
 
 Dowl. & R. or Dowl. & Ry. or Dowl. & Ryl. Dowling 
 & Ryland's English King's Bench Reports. 
 
 Dowl. & Ry. M. C. or Dowl. & Ryl. M. C. Dowling & 
 Ryland's Magistrate Cases, English. 
 
 Dowl. & Ry. N. P. or Dowl. & Ryl. N. P. Dowling & 
 Ryland's Nisi Prius Cases, English. 
 
 Down. & Lud. Downton & Luder's Election Cases, 
 English. 
 
 Dr. Drewry's English Vice Chancellor's Reports ; 
 — Drury's Irish Chancery Reports tempore Sugden ; 
 — Drury's Irish Chancery Reports tempore Napier. 
 
 Dr. R. t. Nap. Drury's Irish Chancery Reports 
 tempore Napier. 
 
 Dr. R. t. Sug. Drury's Irish Chancery Reports 
 tempore Sugden. 
 
 Dr. & Sm. Drewry & Smale's English Vice Chan- 
 cellors' Reports. 
 
 Dr. & Wal. Drury & Walsh's Irish Chancery Re- 
 ports. 
 
 Dr. & War. Drury & Warren's Irish Chancery Re- 
 ports. 
 
 Drake Att. or Drake Attachm. Drake on Attach- 
 ments. 
 
 Draper. Draper's Upper Canada King's Bench 
 Reports, Ontario. 
 
 Drew. Drewry's English Vice Chancellors' Re- 
 ports ; — Drew's Reports, vol. 13 Florida. 
 
 Drew. Inj. Drewry on Injunctions. 
 
 Drew. & S. or Drew. & Sm. or Drewry & Sm. Drew- 
 ry & Smale's Reports, English Chancery. 
 
 Drewry. Drewry's Reports, English Chancery. 
 
 Drewry T. M. Drewry on Trademarks. 
 
 Drink, or Drinkw. Drinkwater's English Common 
 Pleas Reports. 
 
 Drone Copyr. Drone on Copyrights. 
 
 Dru. or Drury. Drury's Irish Chancery Reports 
 tempore Sugden. 
 
 Dru. t. Nap. Drury's Irish Chancery Reports tem- 
 pore Napier. 
 
 Drury c. Sag. Drury's Irish Chancery Reports 
 tempore Sugden. 
 
 Dru. dc Wal. Drury & Walsh's Irish Chancery Re- 
 ports. 
 
 Dru. tC- War. Drury & Warren's Reports, Irish 
 Chancery. 
 
 Du C. or Du Cange. Du Cange's Glossarium. 
 
 Duane Road L. Duane on Road Laws. 
 
 Dub. Dubitatur. Dubitante. 
 
 Dub. Rev. Dublin Review, Dublin, Ireland. 
 
 Dud. or Dud. Q a. Dudley's Reports, Georgia. 
 
 Dud. Ch. or Dud. Eq. (S. C). Dudley's Equity Re- 
 ports, South Carolina. 
 
 Dud. L. or Dud. S. C. Dudley's Law Reports, South 
 Carolina. 
 
 Duer. Duer's Reports, New York Superior Court, 
 vols. 8-13. 
 
 Duer Const. Duer's Constitutional Jurisprudence. 
 
 Duer Ins. Duer on Insurance. 
 
 Duer Mar. Ins. Duer on Marine Insurance. 
 
 Duer Repr. Duer on Representation. 
 
 Dufresne. Dufresne's [Law] Glossary. 
 
 Dugd. Orig. Dugdale's Originates Juridiciales. 
 
 Dugd. Sum. Dugdale's Summons. 
 
 Duke or Duke Uses. Duke on Charitable Uses. 
 
 Dun. Duncan (see Dune.) ; — Duulap (see Dunl.). 
 
 Dun. & Cum. Dunphy & Cummins's Remarkable 
 Trials. 
 
 Dune. Ent. Cas. Duncan's Scotch Entail Cases. 
 
 Dune. N. P. Duncombe's Nisi Prius. 
 
 Duncan's Man. Duncan's Manual of Entail Pro- 
 cedure. 
 
 Dungl. Med. Diet. Dunglison, Dictionary of Medi- 
 cal Science and Literature. 
 
 Dunl. Dunlop, Bell, & Murray's Reports, Scotch 
 Court of Session (Second Series, 1838-62). 
 
 Dunl. Abr. Dunlap's Abridgment of Coke's Re- 
 ports. 
 
 Dunl. Adm. Pr. Dunlop's Admiralty Practice. 
 
 Dunl. B. & M. Dunlop, Bell, & Murray's Reports, 
 Scotch Court of Session (Second Series, 1838-62). 
 
 Dunl. F. Dunlop's Forms. 
 
 Dunl.L.Penn. Dunlop's Laws of Pennsylvania. 
 
 Dunl. L. U. S. Dunlop's Laws of the United States. 
 
 Dunl. Paley Ag. Dunlop's Paley on Agency. 
 
 Dunl. Pr. Dunlop's Practice. 
 
 Dunlop or Dunl. B. & M. Dunlop, Bell & Murray'* 
 Reports, Second Series, Scotch Session Cases. 
 
 Dunn. Dunning's English King's Bench Reports. 
 
 Duponc. Const. Duponceau on the Constitution. 
 
 Duponc. Jur. Duponceau on Jurisdiction. 
 
 Dur. Dr. Fr. Duranton's Droit Francais. 
 
 Durf. (R. 1.). Durfee's Reports, vol. 2 Rhode Is- 
 land. 
 
 Durie or Durie Sc. Durie's Scottish Court of Ses- 
 sion Cases. 
 
 Durn. & E. or Durnf. & E. Durnford & East's Eng- 
 lish King's Bench Reports (Term Reports). 
 
 Dutch. Dutcher's Reports, New Jersey Law. 
 
 Duv. Duvall's Kentucky Reports ; — Duval's Re- 
 ports, Canada Supreme Court. 
 
 Duv. (Can.). Duvall's Canada Supreme Court Re- 
 ports. 
 
 Duval. Duval's Reports, Canada Supreme Court. 
 
 Dwar. Dwarris on Statutes. 
 
 Dwar. St. Dwarris on Statutes. 
 
 Dwight. Dwight's Charity Cases, English. 
 
 Dy. or Dyer. Dyer's English King's Bench Re- 
 ports. 
 
 E. Easter Term. King Edward ;— East's Reports, 
 English King's Bench. 
 
 E. B. Ecclesiastical Compensations or "Bots." 
 
 E. B. d- E. Ellis, Blackburn, and Ellis's Reports, 
 English Queen's Bench. 
 
 E. B. & S. (Ellis) Best & Smith's English Queen's 
 Bench Reports. 
 
 E.G. English Cases;— English Chancery ;— Eng- 
 lish Chancery Reports; — Election Cases, Ontario. 
 , E. C. L. English Common Law Reports. 
 
 E. D. C. Eastern District Court, South Africa. 
 
 E. D. S. or E. D. Smith (N. Y.). E. D. Smith's Re- 
 ports, New York Common Pleas. 
 
 E. E. English Exchequer Reports.
 
 ABBREVIATION 
 
 39 
 
 ABBREVIATION 
 
 E. E. R. English Ecclesiastical Report*. 
 
 E. I. Ecclesiastical Institutes. 
 
 E. I. C. East India Company. 
 
 E. L. d Eq. English Law and Equity Report*. 
 
 E. of Cov. Earl of Coventry's Case. 
 
 E. P. C. East's Pleas of the Crown. 
 
 E. R. East's King's Bench Reports;— Election Re- 
 ports. 
 
 E. R. C. English Ruling Cases. 
 
 E. T. Easter Term. 
 
 E. d A. Ecclesiastical and Admiralty;— Error and 
 Appeal;— Spink's Ecclesiastical and Admiralty Re- 
 ports ;— Upper Canada Error and Appeal Reports. 
 
 E.dA.R. Error and Appeal Reports, Ontario. 
 
 E. d A. W. C. Grant's Error and Appeal Reports, 
 Ontario. 
 
 E. & B. Ellis ft Blackburn's Reports, English 
 Queen's Bench. 
 
 E. d E. Ellis ft Ellis's Reports, English Queen's 
 Bench. 
 
 E. d I. English and Irish Appeals, House of 
 Lords. 
 
 E. d Y. Eagle & Younge's English Tithe Cases. 
 
 Ea. East's English King's Bench Reports. 
 
 Eag. T. Eagle's Commutation of Tithes. 
 
 Eag. & Yo. Eagle & Younge's English Tithe Cases. 
 
 East. East's King's Bench Reports ;— East's Notes 
 of Cases in Morley's Indian Digest; — Eastern Re- 
 porter. 
 
 East N. of C. East's Notes of Cases (in Morley's 
 East Indian Digest). 
 
 East, P. C. or East, PI. Cr. East's Pleas of the 
 Crown. 
 
 East. Rep. Eastern Reporter. 
 
 East's N. of C. East's Notes of Cases, India. 
 
 Ebersole. Ebersole's Reports, vols. 59-80 Iowa. 
 
 Ec. & Ad. Spink's Ecclesiastical and Admiralty 
 Reports. 
 
 Eccl. Ecclesiastical. 
 
 Eccl. Law. Ecclesiastical Law. 
 
 Eccl. R. or Eccl. Rep. English Ecclesiastical Re- 
 ports. 
 
 Eccl. Stat. Ecclesiastical Statutes. 
 
 Eccl. £ Ad. Ecclesiastical and Admiralty;— Spink's 
 Ecclesiastical and Admiralty Reports. 
 
 Ed. Edition. • Edited. King Edward;— Eden's Eng- 
 lish Chancery Reports. 
 
 Ed. Bro. Eden's edition of Brown's English Chan- 
 cery Reports. 
 
 Ed. Cr. Edwards's New York Chancery Reports. 
 
 Ed. et Ord. Edits et Ordonnances (Lower Canada). 
 
 Eden. Eden's Reports, High Court of Chancery, 
 England. 
 
 Eden B. L. or Eden, Bankr. Eden's Bankrupt Law. 
 
 Eden In). Eden on Injunctions. 
 
 Eden Pen. L. Eden's Penal Law. 
 
 Edg. Edgar's Reports, Scotch Court of Session. 
 
 Edg. C. Canons enacted under King Edgar. 
 
 Edict. Edicts of Justinian. 
 
 Edin. L. J. or Edinb. L. J. Edinburgh Law Jour- 
 nal. 
 
 Edm. Exch. Pr. Edmund's Exchequer Practice. 
 
 Edm. Sel. Cas. Edmonds's Select Cases, New York. 
 
 Edw. Edwards's New York Chancery Reports ; — 
 Edwards's English Admiralty Reports; — Edwards's 
 Reports, vols. 2, 3 Missouri; — King Edward; thus 1 
 Edw. I. signifies the first year of the reign of King 
 Edward I. 
 
 Edw. Abr. Edwards's Abridgment of Cases in 
 Privy Council ; — Edwards's Abridgment of Preroga- 
 tive Court Cases. 
 
 Edw. Adin. Edwards's Admiralty Reports, Eng- 
 lish. 
 
 Edw. Ball. Edwards on Bailments. 
 
 Edw. Bill. Edwards on Bills. 
 
 Edw. Ch. Edwards's Chancery Reports, New York. 
 
 Edw. Jur. Edwards's Juryman's Guide. 
 
 Edw. Lead. Dec. Edwards's Leading Decisions in 
 Admiralty ; Edwards's Admiralty Reports. 
 
 Edw. (Mo.). Edwards's Reports, Missouri. 
 
 Edw. Part. Edwards on Parties to Bills in Chan- 
 cery. 
 
 Edw. Pr. Cas. Edwards's Prize Cases (English 
 Admiralty Reports). 
 
 Edw. Pr. Cr. Cas. Edwards's Abridgment of Pre- 
 rogative Court Cases. 
 
 Edw. Rec. Edwards on Receivers In Chancery 
 
 Edw. St. Act. Edwards on the Stam: 
 
 Edw. (Tho.). Edwards's English Adc Jty Re- 
 ports. 
 
 EBrd's Reports, vols. 45-61 South Carolina. 
 
 Eir. Lambert's Eirenarcha. 
 
 El. Queen Elizabeth;— Elchles's Decisions, Scotch 
 Court of Session. 
 
 El. B. d E. Ellis, Blackburn, ft Ellis's Reports, 
 English Queen's Bench. 
 
 El. li. d S. Ellis, Best, ft Smith's Reports, English 
 Queen's Bench. 
 
 El. Cas. Election Cases. 
 
 El. Diet. Elchies's Dictionary of Decisions, Court 
 of Session, Scotland. 
 
 El. d B. or EI. d Bl. Ellis ft Blackburn's Re- 
 ports, English Queen's Bench. 
 
 El. d El. Ellis ft Ellis's Reports, English Queen's 
 Bench. 
 
 EUhi<?. or Ehhies's Diet. Elchies's Dictionary of 
 Decisions, Scotch Court of Session. 
 
 Elec. Cas. N. Y. New York Election Cases (Arm- 
 strong's). 
 
 Eliz. Queen Elizabeth. 
 
 Ell. Bl. d Ell. Ellis, Blackburn, ft Ellis's English 
 Queen's Bench Reports. 
 
 Ell. Deb. Ellis's Debates. 
 
 Ell. Dig. Minn. Eller's Digest, Minnesota Reports. 
 
 Ell. D. d Cr. Ellis on Debtor and Creditor. 
 
 Ell. Ins. Ellis on Insurance. 
 
 Ell. d Bl. Ellis ft Blackburn's English Queen's 
 Bench Reports. 
 
 Ell. d Ell. Ellis ft Ellis's English Queen's Bench 
 Reports. 
 
 Elleam. Post N. Ellesmere's Post Natl. 
 
 Elliott, App. Proc. Elliott's Appellate Procedure. 
 
 Elm. Dig. Elmer's Digest, New Jersey. 
 
 Elm. Dilap. Elmes on Ecclesiastical and Civil 
 Dilapidation. 
 
 Elmer, Lun. Elmer's Practice in Lunacy. 
 
 Els. W. Bl. Elsley's Edition of Wm. Blackstone* 
 English King's Bench Reports. 
 
 Elsyn. Pari. Elsynge on Parliaments. 
 
 Elt. Ten. of Kent. Elton's Tenures of Kent 
 
 Elton, Com. Elton on Commons and Waste Lands. 
 
 Elton, Copyh. Elton on Copyholds. 
 
 Elw. Med. Jur. Elwell's Medical Jurisprudence. 
 
 Emer. Ins. Emerigon on Insurance. 
 
 Emer. Mar. Loans or Emerig. Mar. Loans. Emeri- 
 gon on Maritime Loans. 
 
 Emerig. Tr. des Ass. or Emerig. Traite des Assur. 
 Emerigon, Traite des Assurances. 
 
 Enc. Encyclopaedia. 
 
 Enc. Brit. Encyclopaedia Britannica. 
 
 Enc. Forms. Encyclopaedia of Forms.' 
 
 Enc. PI. d Pr. or Encyc. PI. d Pr. Encyclopaedia of 
 Pleading and Practice. 
 
 Ency. Law. American and English Encyclopaedia 
 of Law. 
 
 Encyc. Encyclopaedia. 
 
 Encyc. PI. d Pr. Encyclopaedia of Pleading ft Prac- 
 tice. 
 
 Encycl. Encyclopaedia. 
 
 Eng. English;— English's Reports, vols. 6-13 Ar- 
 kansas; — English Reports by N. C. Moak. 
 
 Eng. Ad. English Admiralty ;— English Admiralty 
 Reports. 
 
 Eng. Adm. R. English Admiralty Reports. 
 
 Eng. C. C, or Eng. Cr. Cas. English Crown Cases 
 (American reprint). 
 
 Ch. English Chancery ;— English Chancery 
 Reports;— Condensed English Chancery Reports. 
 
 Eng. C. L. or Eng. Com. L. R. English Common-Law 
 
 rtS. 
 
 Eng. Ecc. R. English Ecclesiastical Reports. 
 
 Eng. Eccl English Ecclesiastical Reports. 
 
 Eng. Exch. English Exchequer Reports. 
 
 Eng. Ir. App. English Law Reports, English and 
 Irish Appeal Cases. 
 
 Eng. Jud. or Eng. Jud- Scotch Court of Session 
 Cases, decided by the English Judges. 
 
 Eng. L. d Eq. or Eng. L. d Eq. R. English Law and 
 Equity Reports. 
 
 Eng. Plead. English Pleader. 
 
 Eng. R. d C. Cas. English Railroad and Canal 
 Cases.
 
 ABBREVIATION 
 
 40 
 
 ABBREVIATION 
 
 Bng. Re. English Reports, Full Reprint 
 
 Eng. Rep. Moak's English Reports ;— English's 
 Reports, vols. 6-13 Arkansas ;— English Reports. 
 Eng. Rep. R. English Reports, Full Reprint. 
 Eng. Ru. Ca. English Ruling Cases. 
 Eng. Ry. & C. Cas. English Railway and Canal 
 Cases. 
 
 Eng. Sc. Ecc. English and Scotch Ecclesiastical 
 Reports. 
 
 Eng. & Ir. App. Law Reports, English and Irish 
 Appeal Cases. 
 
 English. English's Reports, vols. 6-13 Arkansas. 
 
 Ent. Coke's Entries;— Rastcll's Entries. 
 
 Entries, Ancient. Rastell's Entries (cited in Rol- 
 le's Abridgment). 
 
 Entries, New Book of. Sometimes refers to Ras- 
 tell's Entries, and sometimes to Coke's Entries. 
 
 Entries, Old Book of. Liber Intrationum. 
 
 Eod. Eodem. 
 
 Eq. Equity. 
 
 Eq. Ab. or Eq. Ca. Abr. Equity Cases Abridged. 
 
 Eq. Cas. Equity Cases, vol. 9, Modern Reports. 
 
 Eq. Cas. Abr. Equity Cases Abridged (English). 
 
 Eq. Draft. Equity Draftsman (Hughes's). 
 
 Eq.Judg. Equity Judgments (by A'Beckett) New 
 South Wales. 
 
 Eq. Rep. Equity Reports;— Gilbert's Equity Re- 
 ports;— Harper's South Carolina Equity Reports; — 
 Equity Reports, English Chancery and Appeals 
 from Colonial Courts, printed by Spottiswoode. 
 
 Err. <£- App. Error and Appeals Reports, Upper 
 Canada. 
 
 Ersk. Erskine's Institutes of the Law of Scot- 
 land ;— Erskine's Principles of the Law of Scotland. 
 
 Ersk. Dec. Erskine's United States Circuit Court, 
 etc., Decisions, in vol. 35 Georgia. 
 
 Ersk. Inst. Erskine's Institutes of the Law of 
 Scotland. 
 
 Erskine, Inst. Erskine's Institutes of the Law of 
 Scotland. 
 
 Ersk. Prin. Erskine's Principles of the Law of 
 Scotland. 
 
 Escriche or Escriche, Die. Leg. Escriche, Diccion- 
 pxio Razonado de Legislacion y Jurisprudencia. 
 
 Esp. or Esp. N. P. Espinasse's English Nisi Prius 
 Reports. 
 
 Esp. Ev. Espinasse on Evidence. 
 
 Esp. N. P. Espinasse's Nisi Prius Law. 
 
 Esp. Pen. Ev. Espinasse on Penal Evidence. 
 
 Esprit des Lois. Montesquieu, Esprit des Lois. 
 
 Esq. Esquire. 
 
 Et al. Et alii, and others. 
 
 Eth. Nic. Aristotle, Nicomachean Ethics. 
 
 Euer. Euer's Doctrina Placitandi. 
 
 Eunom. Wynne's Eunomus. 
 
 Europ. Arb. European Arbitration, Lord West- 
 bury's Decisions. 
 
 Ev. Evidence. 
 
 Ev. Tr. Evans's Trial. 
 
 Evans. Evans's Reports, Washington Territory. 
 
 Evans Ag. Evans on Agency. 
 
 Evans PI. Evans on Pleading. 
 
 Evans Pothier. Evans's Pothier on Obligations. 
 
 Evans R. L. Evans's Road Laws of South Caro- 
 lina. 
 
 Evans Stat. Evans's Collection of Statutes. 
 
 Evans Tr. Evans's Trial. 
 
 Ewell Fixt. Ewell on Fixtures. 
 
 Ewell Lead. Cas. Ewell's Leading Cases on In- 
 fancy, etc. 
 
 Ewell's Evans Ag. Ewell's Evans on Agency. 
 
 Ew.&E. Dig. (Minn.). Ewell and Hamilton's Di- 
 gest, Minnesota Reports. 
 
 Ex. Exchequer Reports, English. 
 
 Ex. or Exr. Executor. 
 
 Ex. C. R. Exchequer Court of Canada Reports. 
 
 Ex. Com. Extravagantes Communes. 
 
 Ex. D. or Ex. Div. Exchequer Division, English 
 Law Reports. 
 
 Exam. The Examiner. 
 
 Exch. Exchequer ;— Exchequer Reports (Wel=by, 
 Hurlstone, & Gordon) ;— English Law Reports, Ex- 
 chequer ;— English Exchequer Reports. 
 
 Exch. Can. Exchequer Reports, Canada. 
 
 Exch. Cas. Exchequer Cases (Legacy Duties, etc.), 
 Scotland. 
 Exch. Chamb. Exchequer Chamber. 
 Exch. Div. Exchequer Division, English Law Re- 
 ports. 
 Exch. Rep. Exchequer Reports. 
 Exec. Execution. Executor. 
 Exp. Ex parte. Expired. 
 Expl. Explained. 
 Ex rel. Ex relatione. 
 Ext. Extended. 
 
 Exton Mar. Dicael. Exton's Maritime Dicaelogle. 
 Eyre. Eyre's Reports, English King's Bench, 
 temp. William III. 
 
 F. Federal Reporter ;— Fitzherbert's Abridgment; 
 — Finalls ; — Consuetudines Feudorum ; — Fitzherbert'i 
 Abridgment. 
 
 F. Abr. Fitzherbert's Abridgment is commonly re- 
 ferred to by the other law writers by the title and 
 number of the placita only, e. g. "coron, 30." 
 F. B. C. Fonblanque's Bankruptcy Cases. 
 F. B. R. Full Bench Rulings, Bengal. 
 F. B. R. N. W. P. Full Bench Rulings, Northwest 
 Provinces, India. 
 
 F. C. Faculty of Advocates Collection, Scotch 
 Court of Session Cases ; — Federal Cases. 
 F. C. R. Fearne on Contingent Remainders. 
 F. Diet. Karnes and Woodhouselee's Dictionary. 
 Scotch Court of Session Cases. 
 F. N. B. Fitzherbert's Natura Brevium. 
 F. R. Forum Romanorum ; — Federal Reporter. 
 F. & F. Foster and Finlason's Reports, English 
 Nisi Prius. 
 
 F. & Fitz. Falconer and Fitzherbert's English 
 Election Cases. 
 
 F. & J. Bank. De Gex. Fisher & Jones' English 
 Bankruptcy Reports. 
 
 F. & SL Fox and Smith's Reports, Irish King's 
 Bench. 
 F. & W. Pr. Freud and Ward's Precedents. 
 Fac. Col. Faculty of Advocates Collection, Scotch 
 Court of Session Cases. 
 
 Fairf. or Fairfield. Fairfield's Reports, vols. 10-12 
 Maine. 
 Falc. Falconer's Reports, Scotch Court of Session. 
 Falc. & Fitz. Falconer and Fitzherbert's English 
 Election Cases. 
 
 Fatn. Cas. Cir. Ev. Famous Cases of Circumstan- 
 tial Evidence, by Phillips. 
 
 Far. Farresley's Reports, English King's Bench, 
 Modern Reports, vol. 7. 
 Far. or Farr. Farresley (see Farresley). 
 Farr Med. Jur. Farr's Elements of Medical Juris- 
 prudence. 
 
 Farresley. Farresley's Reports, vol. 7 Modern Re- 
 ports ;— Farresley's Cases in Holt's King's Bench 
 Reports. 
 Farw. Pow. Farwell on Powers. 
 Faw. L. & T. Fawcett's Landlord and Tenant. 
 Fearne Rem. Fearne on Contingent Remainders. 
 Fed. The Federalist ;— Federal Reporter. 
 Fed. Ca. or Fed. Cas. Federal Cases. 
 Fed. Cas. No. Federal Case Number. 
 Fed. R. or Fed. Rep. The Federal Reporter, all U. 
 S. C. C. & D. C. and C. C. A. Cases, St. Paul, Minn. 
 District, Circuit and Circuit Court of Appeals Re- 
 ports. 
 Fell Guar. Fell on Mercantile Guarantees. 
 Fent. (New Zealand). Fenton's New Zealand Re- 
 ports. 
 
 Fent. Imp. Judg. Fenton's Important Judgments, 
 New Zealand. 
 Fent. N. Z. Fenton's New Zealand Reports. 
 Fer. Fixt. or Ferard, Fixt. Amos and Ferard on 
 Fixtures. 
 
 Ferg. or Ferg. Cons. Fergusson's Reports, Scotch 
 Consistorial Court. 
 
 Ferg. M. & D. Fergusson on Marriage and Di- 
 vorce. 
 
 Ferg. Proc. Ferguson's Common Law Procedure 
 Acts, Ireland. 
 
 Ferg. Ry. Cas. Ferguson's Five Years' Railway 
 Cases. 
 
 Fergusson. (Fergusson of) Kilgerran's Scotch Ses- 
 sion Cases.
 
 ABBREVIATION 
 
 41 
 
 ABBIiEVIA'J 
 
 Fern. Dec. Decretos del Fernando, Mexico. 
 
 Ferr. Hist. Civ. L. Ferriere's History of the Civil 
 Law. 
 
 F err. Mod. Ferriere's Dlctlonnalre de Droit et de 
 Pratique. 
 
 ere. Ferriere's Dlctlonnalre de Droit et de 
 Pratique. 
 
 Fes3. Fat. or Pesscn, Pat. Fessenden on Patents. 
 
 Feud. Lib. The Book of Feuds. See this diction- 
 ary, s. v. "Liber Feudorum." 
 
 Ff. Pandectae (Juris Clvills) ;— Pandects of Jus- 
 tinian. 
 
 Fi. fa. Fieri facias. 
 
 I Com. Law. Field on the Common Law of 
 Enr-land. 
 
 Id Corp. Field on Corporations, 
 d Ev. Field's Law of Evidence, India. 
 
 Field Int. Code. Field's International Code. 
 
 Field Fen. L. Field's Penal Law. 
 
 Fit. Fillgcr's Writs 
 
 Fin. Finch's English Chancery Reports ;— Finla- 
 son (see Finl.). 
 
 Fin. Law. Finch's Law. 
 
 Fin. Pr. Finch's Precedents In Chancery. 
 
 Fin. Ren. Finlay on Renewals. 
 
 Finch. English Chancery Reports tempore Finch. 
 
 Finch Cas. Cont. Finch's Cases on Contract, 
 
 Finch Inn. Dig. Finch's Insurance Digest 
 
 Finch L. C. Finch's Land Cases. 
 
 Finl. Dig. Finlay's Digest and Cases, Ireland. 
 
 Finl. L. C. Flnlason's Leading Cases on Pleading, 
 etc. 
 
 Finl. Mart. L. Finlason on Martial Law. 
 
 Finl. Rep. Flnlason's Report of the Gurney Case. 
 
 Fi7il. Ten. Finlason on Land Tenures. 
 
 First pt. Edw. III. Part II of the Year Books. 
 
 First pt. II. VI. Part VII of the Year Books. 
 
 Fish. Fisher's United States Patent Cases ; — Fish- 
 er's United States Prize Cases. 
 
 Fish. Cas. Fisher's Cases, United States District 
 Courts. 
 
 Fish. Cop. Fisher on Copyrights. 
 
 Fish. Dig. Fisher's Digest, English Reports. 
 
 Fish. Mort. or Fish. Mortg. Fisher on Mortgages. 
 
 Fish. Pat. or Fish. Pat. Cas. Fisher's United States 
 Patent Cases. 
 
 Fish. Pat. Rep. Fisher's Patent Reports, U. S. Su- 
 preme and Circuit Courts. 
 
 Fish. Pr. Cas. or Fish. Prize. Fisher's Prize Cases, 
 U. S. Courts, Penna. 
 
 Fitz. or Fitz. Abr. Fitzherbert's Abridgment (see 
 F. & Fitz.). 
 
 Fitz. N. D. Fitzherbert's Natura Brevium. 
 
 Fitzg. Fitzgibbon's English King's Bench Reports. 
 
 Fitzh. Abr. Fitzherbert's Abridgment. 
 
 Fitzh. N. B. or Fitzh. Nat. Brev. Fitzherbert's 
 New Natura Brevium. 
 
 Fl. Fleta ;— Flanders (see Fland.) ;—Commentari- 
 us Juris Anglicani. 
 
 Fl. & K. or Fl. & Kel. Flanagan & Kelly's Irish 
 Rolls Court Reports. 
 
 Fla. Florida ;— Florida Reports. 
 
 Flan. £ K. or Flan. & Kel. Flanagan and Kelly's 
 Reports, Irish Rolls Court. 
 
 Fland. Ch. J. Flanders's Lives of the Chief Jus- 
 tices. 
 
 Fland. Const. Flanders on the Constitution. 
 
 Fland. Fire Ins. Flanders on Fire Insurance. 
 ■ I. Mar. L. Flanders on Maritime Law. 
 
 Fland. Ship. Flanders on Shipping. 
 
 Fleta. FIcta, Commentarius Juris Anglicani. 
 
 Flip, or Flipp. Flippin's United States Circuit 
 Court Reports. 
 
 Flor. Florida ;— Florida Reports. 
 
 FoelixDr. Int. Foelix's Droit International Prive. 
 
 Fogg. Fogg's Reports, vols. 32-37 New Hampshire. 
 
 Fol. Folio ;— Foley's Poor Laws and Decisions, 
 English. 
 
 Fol. Diet. Karnes and Woodhouslee's Dictionary, 
 Scotch Court of Session Cases. 
 
 Poor L. Foley's Poor Laws and Decisions, 
 English. 
 
 Foho. Laics. Folwell's Laws of the United States. 
 
 Fonb. Eq. Fonblanque's Equity. 
 
 Fonb.3fed.Jwr. Fonblanque on Medical Jurispru- 
 dence. 
 
 Fonb.N.R. Fonblanque's New Rep 
 Bankruptcy. 
 
 Fonblanque's Equity ;— Funblanque on 
 Medical Jurisprudence ;— Fonblanque's .'■ 
 English Bankruptcy. 
 
 Fonbl. Eq. Fonblanque's Equity. 
 
 Fonbl. R. Fonblanque's English Cases (or 
 Reports) In Bankruptcy. 
 
 Foote Int. Jur. Foote on Private International Ju- 
 risprudence. 
 
 For. Forrest's Exchequer Reports ;— Forrester's 
 Chancery Reports (Cases tempore Talbot). 
 
 For. Cas. d Op. Forsyth's Cases and Opinions. 
 
 For. de Laud. Fortescue's de Laudibus Legum An- 
 gliae. 
 
 For. Pla. Brown's Formulae Placitandl. 
 
 Foran C. C. P. Q. Foran's Code of Civil Procedure, 
 Quebec. 
 
 Forb. Forbes's Decisions, Scotch Court of Session. 
 
 Forb. Inst. Forbes's Institutes of the Law of 
 Scotland. 
 
 Form. Forman's Reports, Illinois. 
 
 Forman. Forman's Reports, Illinois. 
 
 Form. Pla. Brown's Formulae Placitandl. 
 
 Forr. or Forrest. Forrest's English Exchequer Re- 
 ports ;— Forrester's English Chancery Cases (com- 
 monly cited, Cases tempore Talbot). 
 
 For. Cas. & Op. or Fors. Cas. d Op. Forsyth's Cases 
 and Opinions on Constitutional Law. 
 
 Fors. Comp. Forsyth's Composition with Creditors. 
 
 Fors. Bis. Forsyth's History of Trial by Jury. 
 
 Fors. Trial by Jury. Forsyth's History of Trial by 
 Jury. 
 
 Fort, or Fortes. Fortescue's English King's 
 Bench Reports. 
 
 Fortes, de Laud. Fortescue de Laudibus Legum 
 Angliae. 
 
 Forum. The Forum, by David Paul Brown ;— For- 
 um (periodical). Baltimore a:>d X;w York. 
 
 Forum L. R. Forum Law Review, Baltimore. 
 
 Foss, Judg. Foss's Judges of England. 
 
 Fost. Foster's English Crown Law or Crown Cas- 
 es ;— Foster's New Hampshire Reports, vols. 19, and 
 21-31 ;— Foster's Legal Clhronicle Reports, P. 
 vania ;— Foster's Reports, vols. 5, 6 and 8 Hawaii. 
 
 Fost. (N. H.). Foster's Reports, [/shire, 
 
 vols. 19 and 21-31. 
 
 Fost. Cr. Law. Foster, Crown Law. 
 
 Fost. Elcm. or Fost. Jur. Foster's Elements of Ju- 
 risprudence. 
 
 Fost. S. F. or Fost. on Sci. Fa. Foster on the Writ 
 of Scire Facias. 
 
 Fost. & Fin. Foster and Finlason's Reports, Eng- 
 lish Nisi Prius Cases. 
 
 Foster. Foster's English Crown Law ;— Legal 
 Chronicle Reports (Pennsylvania), edited by Foster; 
 —Foster's New Hampshire Reports. 
 
 Fount. Fountainhall's Reports, Scotch Court of 
 Session. 
 
 Fowl. L. Cas. Fowler's Leading Cases on Col- 
 lieries. 
 
 Fox. Fox's Decisions, Circuit and District Court. 
 Maine (Haskell's Reports) ;— Fox's Reports, English. 
 
 Fox Reg. Ca. or Fox Reg. Cas. Fox's Registration 
 Cases. 
 
 Foa: & Sm. Fox & Smith's Reports, Irish King's 
 Bench. 
 
 • Fr. Fragment, or Excerpt, or Laws in Titles of 
 Pandects ;— Freeman's English King's Bench and 
 Chancery Reports ;— Fragn>< 
 
 Fr. Ch. Freeman's English Chancery Reports ; 
 Freeman's Mississippi Chancery Reports. 
 
 Fr. E. C. Fraser's Election Cases. 
 
 Fr. Ord. French Ordinances. 
 
 Fra. Max. Francis's Maxims of Equity. 
 
 Fran. Char. Francis's Law of Charities. 
 
 Fran. Max. Francis's Maxims of Bqul 
 
 Franc, or Franc. Judg. Francillon's Judgments. 
 County Courts. 
 
 France. France's Reports, vols. 3-11 Colorado. 
 
 Fras. Dom. Rel. Fraser on Personal and Domestic 
 Relations.
 
 ABBREVIATION 
 
 42 
 
 ABBREVIATION 
 
 Fras. El. Cas. or Fras. Elec. Cas. or Fraser. Fra- 
 ser's English Cases of Controverted Elections. 
 
 Fraz. or Fras. Adm. Frazer's Admiralty Cases, 
 Scotland. 
 
 Fred. Code. Frederician Code, Prussia. 
 
 Free. Freeman's English King's Bench Reports, 
 vol. 1 Freeman's King's Bench Reports and vol. 2 
 Freeman's Chancery Reports. See also Freem. 
 
 Free. Ch. Freeman's English Chancery Reports; 
 — Freeman's Mississippi Chancery Reports. 
 
 Freem. (111.). Freeman's Reports, Illinois. 
 
 Freem. C. C. or Freem. Ch. Freeman's Reports, 
 English Chancery. (2d Freeman.) 
 
 Freem. Compar. Politics. Freeman, Comparative 
 Politics. 
 
 Freem. Coten. d Par. Freeman on Cotenancy and 
 Partition. 
 
 Freem. Ex. Freeman on Executions. 
 
 Freem. (III.). Freeman's Reports, Illinois. 
 
 Freem. Judg. Freeman on Judgments. 
 
 Freem. K. B. Freeman's Reports, English King's 
 Bench. (1st Freeman.) 
 
 Freem. (Miss.). Freeman's Chancery Reports, 
 Mississippi. 
 
 French. French's Reports, New Hampshire. 
 
 Fries Tr. Trial of John Fries (Treason). 
 
 Frith. Opinions Attorneys-General, pt. 2, vol. 21. 
 
 Fry Cont. Fry on the Specific Performance of 
 Contracts. 
 
 Full B. R. Full Bench Rulings, Bengal (or North- 
 west Provinces). 
 
 Fuller. Fuller's Reports, vols. 59-105 Michigan. 
 
 Fult. or Fulton. Fulton's Reports, Bengal. 
 
 G. Gale's Reports, English Exchequer;— King 
 George; thus 1 G. I. signifies the first year of the 
 reign of King George I. 
 
 G. B. Great Britain. 
 
 G. Coop, or Cooper. G. Cooper's English Chancery. 
 
 G. Gr. George Greene's Reports, Iowa. 
 
 G. M. Dudl. G. M. Dudley's Reports, Georgia. 
 
 G. O. General Orders, Court of Chancery, Ontario. 
 
 G. S. General Statutes. 
 
 G. d D. Gale & Davison's Reports, English Ex- 
 chequer ;— Gale & Davison's English Queen's Bench 
 Reports. 
 
 G. d G. Goldsmith & Guthrie, Missouri. 
 
 G.&J. Gill & Johnson's Maryland Reports;— Glyn 
 & Jameson's English Bankruptcy Reports. 
 
 G. d T. Gould & Tucker's Notes on Revised Stat- 
 utes of United States. 
 
 Go. Georgia ;— Georgia Reports. 
 
 Ga. Dec. Georgia Decisions, Superior Courts. 
 
 Ga. L. J. Georgia Law Journal. 
 
 Ga. L. Rep. Georgia Law Reporter. 
 
 Ga. Supp. Lester's Supplement, vol. 33 Georgia. 
 
 Gab. Cr. L. Gabbett's Criminal Law. 
 
 Gait. Gaii Institutionum Commentarii. 
 
 Gains. Gaius's Institutes. 
 
 Gal. Gallison's Reports, United States Circuit 
 Courts. 
 
 Galb. Galbraith's Reports, Florida Reports, vols. 
 9-12. 
 
 Galb. d M. Galbraith & Meek's Reports, Florida 
 Reports, vol. 1-. 
 
 Galbraith. Galbraith's Reports, vols. 9-12 Florida. 
 
 Gale. Gale's Reports, English Exchequer. 
 
 Gale E. or Gale, Easem. Gale on Easements. 
 
 Gale Stat. Gale's Statutes of Illinois. 
 
 Gale d Dav. Gale & Davison's Queen's Bench Re- 
 ports. 
 
 Gale & W. Gale and Whatley on Easements. 
 
 Gall, or Gallis. Gallison's Reports, United States 
 Circuit Courts. 
 
 Gall. Cr. Cas. Gallick's Reports of French Crim- 
 inal Cases. 
 
 Gall. Hist. Col. Gallick's Historical Collection of 
 French Criminal Cases. 
 
 Gall. Int. L. Gallaudet on International Law. 
 
 Gamb. & Barl. Gamble & Barlow's Digest, Irish. 
 Gantt Dig. Gantt's Digest Statutes, Arkansas. 
 
 Gard. N. Y. Kept. Gardenier's New York Reporter. 
 
 Garden, or Gardenhire. Gardenhire's Reports, Mis- 
 souri. 
 
 Gardn. P. C. or Gardn. P. Cas. Gardner Peerage 
 Case, reported by Le Marchant. 
 
 Gaspar. Gaspar's Small Cause Court Reports, 
 Bengal. 
 
 Gay. (La.). Gayarre's Louisiana Reports. 
 
 Gayarre. Gayarre's Reports, vols. 25-28 Louisi- 
 ana Annual. 
 
 Gaz. B. or Gaz. Bank. Gazette of Bankruptcy, Lon- 
 don. 
 
 Gaz. Dig. Gazzam's Digest of Bankruptcy Deci- 
 sions. 
 
 Gaz. & B. C. Rep. or Gaz. d Bank. Ct. Rep. Gaz- 
 ette & Bankrupt Court Reporter, New York. 
 
 Gazz. Bank. Gazzam on Bankruptcy. 
 
 Geld, d M. Geldart & Maddock's English Chan- 
 cery Reports, vol. 6 Maddock's Reports. 
 
 Geld, d O. or Geld, d Ox. (Nova Scotia). Geldert 
 and Oxley's Decisions, Nova Scotia. 
 
 Geld, d R. Geldert & Russell, Nova Scotia. 
 
 Geldart. Geldart & Maddock's English Chancery 
 Reports, vol. 6 Maddock's Reports. 
 
 Gen. Arb. Geneva Arbitration. 
 
 Gen. Abr. Cas. Eq. General Abridgment of Cases 
 in Equity (Equity Cases Abridged). 
 
 Gen. Dig. General Digest American and English 
 Reports. 
 
 Gen. Laws. General Laws. 
 
 Gen. Ord. General Orders, Ontario Court of Chan- 
 cery. 
 
 Gen. Ord. Ch. or Gen. Ord. in Ch. General Orders 
 of the English High Court of Chancery. 
 
 Gen. Sess. General Sessions. 
 
 Gen. St. General Statutes. 
 
 Gen. Term. General Term. 
 
 Geo. Georgia ;— Georgia Reports;— King George 
 (as 13 Geo. II.). 
 
 Geo. Coop. George Cooper's English Chancery 
 Cases, temp. Eldon. 
 
 Geo. Dec. Georgia Decisions. 
 
 Geo. Dig. George's Mississippi Digest. 
 
 Geo. Dig. George's Digest, Mississippi. 
 
 Geo. Lib. George on Libel. 
 
 George. George's Reports, Mississippi. 
 
 Ger. Real Est. Gerard on Titles to Real Estate. 
 
 Gib. Cod. Gibson's Codex Juris Ecclesiastici An- 
 glieani. 
 
 Gib. Dec. Gibson's Scottish Decisions. 
 
 Gibb. D. d N. Gibbons on Dilapidations and Nui- 
 sances. 
 
 Gibbon, Rom. Emp. Gibbon, History of the De- 
 cline and Fall of the Roman Empire. 
 
 Gibbs. Gibbs's Reports, Michigan. 
 
 Gibbs Jud. Chr. Gibbs's Judicial Chronicle. 
 
 Gibs. Gibson's Decisions, Scotland. 
 
 Gibs. Camd. Gibson's [edition of] Camden's Bri- 
 tannia. 
 
 Gibson. (Gibson of) Durie's Decisions, Scotch 
 Court of Session. 
 
 Gif. or Giff. Giffard's English Vice-Chancellors's 
 Reports. 
 
 Gif.dFal. Gilmour & Falconer's Scotch Session 
 Cases. 
 
 Giff. Giffard's Reports, English Chancery. 
 
 Giff. & H. Giffard and Hemming's Reports, Eng- 
 lish Chancery. 
 
 Gil. Gilfillan's Edition, vols. 1-20 Minnesota ; — 
 Gilman's Reports, vols. 6-10 Illinois;— Gilmer's Vir- 
 ginia Reports; — Gilbert's English Chancery Re- 
 ports;— Gilbert's English Cases in Law and Equity. 
 
 Gilb. Gilbert's Reports, English Chancery. 
 
 Gilb. Cas. Gilbert's Cases in Law and Equity, 
 English Chancery and Exchequer. 
 
 Gilb. Ch. Gilbert's Reports, English Chancery. 
 
 Gilb. Ch. Pr. Gilbert's Chancery Practice. 
 
 Gilb. C. P. Gilbert's Common Pleas. 
 
 Gilb. Com. PI. Gilbert's Common Pleas. 
 
 Gilb. Dev. Gilbert on Devices. 
 
 Gilb. Dist. Gilbert on Distress. 
 
 Gilb. Eq. Gilbert's English Equity or Chancery 
 Reports. 
 
 Gilb. Ev. Gilbert's Evidence. 
 
 Gilb. Ex. Gilbert on Executions. 
 
 Gilb. Exch. Gilbert's Exchequer. 
 
 Gilb. For. Rom. Gilbert's Forum Romauum. 
 
 Gilb. K. B. Gilbert's King's Bench. 
 
 Gilb. Lex Prce. Gilbert's Lex Pretoria. 
 
 Gilb. Railw. L. Gilbert's Railway Law. 
 
 Gilb. Rem. Gilbert on Remainders.
 
 ABBREVIATION 
 
 43 
 
 ABBREVIATION 
 
 Gilb. Rents. Gilbert on Rents. 
 
 Gilt). Rep. Gilbert's Reports, English Chancery. 
 
 Gilb. Repl. Gilbert on Replevin. 
 
 Gilb. Ten. Gilbert on Tenures. 
 
 Qilb. Cor Gilb. Vsea. Gilbert on Uses and Trusts. 
 
 Gild. (.W.M.J. Gildersleeve's New Mexico Reports. 
 n of Minnesota Reports. 
 Gill's Reports, Maryland. 
 
 Gill Pol. Rep. Gill's Police Court Reports, Bos- 
 ton, Mass. 
 
 Gill iir J. or Qill £ Johns, (lid.). Gill & Johnson's 
 Reports, Maryland. 
 
 Gilm. Oilman's Reports, vols. 6-10 Illinois;— Gil- 
 mer's Reports, Virginia ;— Gilmour's Reports, Scotch 
 Court of Session. 
 
 Gilm. Di'j. Gilman's Digest, Illinois and Indiana. 
 
 Gilm. (III.). Gilman's Reports, Illinois. 
 
 Gilm. (V a.). Gi Reports, Virginia. 
 
 Qtim. £ Fal. or Gilm. £ Fale. Gilmour and Fal- 
 coner's Reports, Scotch Court of Session. 
 
 Gilp. Gilpin's United States District Court Re- 
 ports. 
 
 Gilp. Opin. Gilpin's Opinions of the United States 
 Attorneys-General. 
 
 Gir. W. C. Girard Will Case. 
 
 Gl. Glossa; a gloss or interpretation. 
 
 Gl.dJ. Glyn & Jameson's English Bankruptcy 
 Reports. 
 
 Glan. lib. Glanville, De Legibus et Consuetudinl- 
 bus Angliae. 
 
 Glanv. or Glanvil. Glanville, De Legibus et Con- 
 suetudinibus Angliaj. 
 
 Glanv. El. Ca. or Glanv. El. Cas. Glanville's Elec- 
 tion Cases. 
 
 Glas. or Clasc. Clascock's Reports in all the 
 Courts of Ireland. 
 
 Glassf. Glassford on Evidence. 
 
 Glenn. Glenn's Reports, Louisiana Annual. 
 
 Glov. Mun. Corp. Glover on Municipal Corpora- 
 tions. 
 
 Glyn £ Jam. Glyn and Jameson's Bankruptcy 
 Cases, English. 
 
 Go. Goebel's Probate Court Cases. 
 
 Godb. Godbolt's Reports, English King's Bench. 
 
 Godd. Eas. Goddard on Easements. 
 
 Godef. £ S. Godcfroi and Shortt on Law of Rail- 
 way Companies. 
 
 Godo. Godolphin's Abridgment of Ecclesiastical 
 Law ; — Godolphin on Admiralty Jurisdiction ;— Go- 
 dolphin's Orphan's Legacy;— Godolphin's Repertori- 
 um Canonicum. 
 
 Godol. Ecc. Law or Godolph. Godolphin's Abridg- 
 ment of Ecclesiastical Law. 
 
 Godolph. Adm. Jur. Godolphin on Admiralty Ju- 
 risdiction. 
 
 Godolph. Leg. Godolphin's Orphan's Legacy. 
 
 Godolph. Rep. Can. Godolphin's Repertorium Ca- 
 nonicum. 
 
 Gods. Pat. Godson on Patents. 
 
 Gocb. or Goeb. Prob. Ct. Cas. Goebel's Probate 
 Court Cases. 
 
 Gog. Or. Goguet's Origin of Laws. 
 
 Goirand. Goirand's French Code of Commerce. 
 
 Gold, or Goldcs. Goldesborough's or Gouldsbor- 
 ough's English King's Bench Reports. 
 
 Gold. £ G. Goldsmith & Guthrie's Reports, vols. 
 36-67 Missouri Appeals. 
 
 Goldes. Goldesborough's Reports, English King's 
 Bench. 
 
 Golds. Eq. Goldsmith's Equity Practice. 
 
 Good. Pat. Goodeve's Abstract of Patent Cases. 
 
 Good. £ Wood. Full Bench Rulings, Bengal, edit- 
 ed by Goodeve & Woodman. 
 
 Gord. Dig. Gordon's Digest of the Laws of the 
 U. S. 
 
 Gord. Tr. Gordon's Treason Trials. 
 
 Gordon. Gordon's Reports, vols. 2-1-26 Colorado 
 and vols. 10-13 Colorado Appeals. 
 
 Gosf. Gosford's Manuscript Reports, Scotch Court 
 of Session. 
 
 Goiid. R. L. Goudsmit's Roman Law. 
 
 Gould. Gouldsborough's English King's Bench Re- 
 ports. 
 
 Gould, PI. Gould on Pleading. 
 
 Gould &T. Gould & Tucker's Notes on Revised 
 Statutes of United States. 
 
 Gouldsb. Gouldsborough's Repor 1 (Ufa King's 
 
 Bench. 
 
 Gourick's Washington Digest 
 • r Gow N. P. Gow's Nisi Prius I 
 llsh. 
 
 Gow Part. Gow on Partnership. 
 
 Gr. Grant's Cases, Pennsylvania;— Green' 
 Jersey Reports; — Greeuleaf's Maine- 
 Grant's Cases, Canada ;— Grant's Chancery Reports, 
 Ontario. 
 
 Gr. Ca. or Gr. Cas. Grant's Cases, Pennsyh 
 
 Gr. Vh. or Gr. Eq. (H. W.) Green's New 
 Equity Reports;— Gresley's Equity 
 
 Gra. Grant (see Grant) ;— Graham's IU-por- 
 98-139 Georgia. 
 
 Grah. Pr. Graham's Practice. 
 
 £ Wat. N. T. Graham & Waterman o 
 
 Grain Hip. Grain's Ley Hipotecaria, of Spain. 
 
 Grand Cou, or Grand Gout. Graiel 
 idie. 
 
 . or Granger. Granger's Reports, vols. 22-23 
 Ohio State. 
 
 ■'. Grant's Upper Canada Chancery Reports 
 Ontario; — Grant's Pennsylvania Cases;— (Grant of) 
 Elchies's Scotch Session Cases;— Grant's Jamaica 
 Reports. 
 
 Grant Bank. Grant on Banking. 
 
 I Cas. Grant's Cases, Pennsylvania Supreme 
 Court. 
 
 I Ch. Grant's Upper Canada Chancery Re- 
 ports. 
 
 Grant Ch. Pr. Grant's Chancery Practice. 
 
 Grant Corp. Grant on Corporations. 
 
 Grant E. & A. Grant's Error and Appeal Reports. 
 Ontario. 
 
 Grant (Jamaica). Grant's Jamaica Reports. 
 
 Grant Pa. Grant's Cases, Pennsylvania Supreme 
 Court. 
 
 Grant U. C. Grant's Upper Canada Chancery Re- 
 ports. 
 
 Qrat. or Gratt. Grattan's Virginia Reports. 
 
 Grac. de Jur. Nat. Gent. Gravina, de Jure Natu- 
 rale Gentium. 
 
 Gravin. Gravina, Origlnum Juris Civilis. 
 
 Gray. Gray's Massachusetts Reports;— Gray's Re- 
 ports, vols. 112-122 North Carolina. 
 
 Gray Cas. Prop. Gray's Cases on Property. 
 
 Gray Perp. Gray on Perpetuities. 
 
 Gray's Inn J. Gray's Inn Journal. 
 
 Grayd. F. Graydon's Forms. 
 
 Greav. R. C. or Greav. Russ. Greave's Edition of 
 Russell on Crimes. 
 
 Green. Green's New Jersey Law or Equity Re- 
 ports;— Green's Reports, vols. 11-17 Rhode Is 
 .G. Greene's Iowa Reports;— Greenleaf's K 
 vols. 1-9 Maine ;— Green's Reports, vol. 1 Oklahoma. 
 
 Green Bag. A legal Journal, Boston. 
 
 Green C. E. C. E. Green's Reports, New Jersey 
 Equity, vols. 16-27. 
 
 Qreen Ch. or Green Eq. Green's Chancery Reports, 
 New Jersey Equity, vols. 2-4. 
 
 Green Cr. L. Rep. Green's Criminal Law Reports, 
 U. S. 
 
 Green L. or Green N. J. Green's Law Reports, New 
 Jersey Law, vols. 13-15. 
 
 C Greeuleaf's Overruled Cases. 
 (R.I.). Green's Reports, Rhode Island, 
 vol. 11. 
 
 Sc. Cr. Cas. Green's Criminal Cases, Scot- 
 land. 
 
 Green Sc. Tr. Green's Scottish Trials for Treason. 
 
 Green. £ II. Greenwood & Horwood's Cohveyauc- 
 Ing. 
 
 Greene. G. Greene's Iowa Reports; — C. E. Green's 
 New Jersey Equity Hep .its, vols. 16-27 New Jersey 
 Equity. ; New York Anno- 
 
 Greene's Iowa Reports. 
 
 . .pping Law Manual. 
 nl. Greenleaf's Reports, vols. 1-9 Maine. 
 I. Cr. or Qreenl. Cruise. Greenleaf's Cruise 
 on Real Property. 
 Qreenl. Bv. Greenleaf on Evidence. 
 Qreenl. Ov. Cos. Greenleaf's Overruled Cases.
 
 ABBREVIATION 
 
 44 
 
 ABBREVIATION 
 
 Green's Brice's U. V. or Green's Brice, Ultra Vires. 
 Green's Edition of Brice's Ultra Vires. 
 
 Greenw. Courts. Greenwood on Courts. 
 
 Greenw. & M. Greenwood & Martin's Police Guide. 
 
 Grein. Dig. Greiner's Digest, Louisiana. 
 
 Gren. or Gren. (Ceylon). Grenier's Ceylon Reports. 
 
 Gresl. Eq. Ev. Gresley's Equity Evidence. 
 
 Grey Deb. Grey's Debates in Parliament. 
 
 Grif. L. Reg. Griffith's Law Register, Burlington, 
 New Jersey. 
 
 Grif. P. R. Cas. Griffith's English Poor Rate Cases. 
 
 Griff. Cr. Griffith on Arrangements with Credi- 
 tors. 
 
 Griff. Ct. Mar. Griffith on Courts-Martial. 
 
 Griff. Inst. Griffith's Institutes of Equity. 
 
 Griff. L. R. Griffith's Law Register, Burlington, 
 N. J. 
 
 Griff. Pat. Cas. Griffin's Abstract of Patent Cases. 
 
 Griffith. Griffith's Reports, vols. 1-5 Indiana Ap- 
 peals and vols. 117-132 Indiana. 
 
 Grimke Ex. Grimke on Executors and Adminis- 
 trators. 
 
 Grimke Just. Grimke's Justice. 
 
 Grimke P. L. Grimke's Public Laws of South Car- 
 olina. 
 
 Grisw. (O.). Griswold's Reports, Ohio. 
 
 Grisio. Und. T. B. Griswold's Fire Underwriters' 
 Text Book. 
 
 Gro. or Gro. B. et P., or Gro. de J. B. or Grot, or 
 
 Grot, de Jur. B. Grotius, De Jure Belli et Pacis. 
 
 . Grot. Dr. de la Guer. Grotius Le Droit de la Guerre. 
 
 Gude Pr. Gude's Practice on the Crown Side of 
 the King's Bench. 
 
 Guern. Eq. Jur. Guernsey's Key to Equity Juris- 
 prudence. 
 
 Guizot, Hist. Civilization. Guizot, General History 
 of Civilization in Europe. 
 
 Guizot, Rep. Govt. Guizot, History of Representa- 
 tive Government. 
 
 Gundry. Gundry Manuscripts in Lincoln's Inn 
 Library. 
 
 Guth. Sh. Cas. Guthrie's Sheriff Court Cases, 
 Scotland. 
 
 Guthrie. Guthrie's Reports, vols. 33-83 Missouri 
 Appeals. 
 
 Guthrie. Guthrie's Sheriff Court Cases, Scotland. 
 
 Guy, Med. Jur. Guy on Medical Jurisprudence. 
 
 Guy Reper. Guy's Repertoire de la Jurisprudence. 
 
 Guyot, Inst. Feod. Guyot, Institutes Feodales. 
 
 Gwil. Ti. Cas. or Gwill. Gwillim's Tithe Cases. 
 
 H. Howard's United States Supreme Court Re- 
 ports ;— Hill's New York Reports ;— Hilary Term ;— 
 King Henry ; thus 1 H. I. signifies the first year 
 of the reign of King Henry I. 
 
 h. a. Hoc anno. 
 
 H. Bl. or H. Bla. Henry Blackstone's English 
 Common Pleas Reports. 
 
 H. C. House of Commons. 
 
 H. C. R. High Court Reports, India. 
 
 H. C. R. N. W. P. High Court Reports, Northwest 
 Provinces, India. 
 
 H. E. C. Hodgin's Election Cases, Ontario. 
 
 H. H. C. L. Hale's History of the Common Law. 
 
 H. H. P. C. Hale's History, Pleas of the Crown. 
 
 H. L. House of Lords. 
 
 H. L. C. or H. L. Cas. House of Lords Cases 
 (Clark's). 
 
 H. L. F. Hall's Legal Forms. 
 
 H. L. Rep. Clark and Finnelly's House of Lords 
 Reports, New Series. 
 
 H. P. C. Hale's Pleas of the Crown ;— Hawkins' 
 Pleas of the Crown. 
 
 II. T. Hilary Term. 
 
 h. t. Hoc titulum, or hoc titulo. 
 
 h. v. Hoc verbum, or his verbis. 
 
 H. W. Gr. H. W. Green's New Jersey Equity Re- 
 ports. 
 
 H. & B. Hudson & Brooke's Irish King's Bench 
 Reports. 
 
 H. & C. Hurlstone & Coltman's English Exchequer 
 Reports. 
 
 H. & D. Lalor's Supplement to Hill and Denio's 
 Reports, New York. 
 H. & Disb. Pr. Holmes and Disbrow's Practice. 
 
 E. & G. Harris & Gill's Maryland Reports ;— Hurl- 
 stone & Gordon's English Reports. 
 
 H. & JET. Horn & Hurlstone's English Exchequer 
 Reports ; — Harrison & Hodgin's Municipal Reports, 
 Upper Canada. 
 
 H. & J. Harris & Johnson's Maryland Reports ; — 
 Hayes & Jones's Exchequer Reports, Ireland. 
 
 H. <6 J. Forms. Hayes and Jarman's Forms of 
 Wills. 
 
 H. & J. Ir. Hayes and Jones's Reports, Irish Ex- 
 chequer. 
 
 H. & M. Hening & Munford's Virginia Reports ; — 
 Hemming & Miller's English Vice-Chancellors' Re- 
 ports. 
 
 H. & M. Ch. Hemming & Miller's English Vice- 
 Chancellors' Reports. 
 
 H. & McH. Harris & McHenry's Maryland Re- 
 ports. 
 
 H. & N. Hurlstone and Norman's Reports, English 
 Exchequer. 
 H. & P. Hopwood and Philbrick's Election Cases. 
 H. dc R. Harrison & Rutherford's English Common 
 Pleas Reports. 
 H. & S. Harris and Simrall's Mississippi Reports. 
 H. & T. Hall and Twell's Reports, English Chan- 
 cery. 
 
 H. & T. Self-Def. Horrigan & Thompson's Cases 
 on the Law of Self-Defense. 
 
 H. & W. Harrison & Wollaston's English King's 
 Bench Reports ;— Hurlstone & Walmsley's English 
 Exchequer Reports. 
 Ha. Hare's Chancery Reports ;— Hall ; — Haggard. 
 Ha. & Tw. Hall and Twell's Reports, English 
 Chancery. 
 Hab. Corp. Habeas Corpus. 
 Hab. fa. poss. Habere facias possessionem. 
 Hab. fa. seis^ Habere facias seisinam. 
 Had. Haddington ;— Hadley's Reports, vols. 45-48 
 New Hampshire. 
 
 Hadd. or Haddington. Haddington's Reports, 
 Scotch Court of Session. 
 
 Hadl. Hadley's Reports, vols. 45-48 New Hamp- 
 shire. 
 
 Hadl. Int. R. L. or Hadl. Rom. Law. Hadley's In- 
 troduction to the Roman Law. 
 
 Hadley. Hadley's Reports, vols. 45-48 New Hamp- 
 shire. 
 Hag. Adm. Haggard's English Admiralty Reports. 
 Hag. Con. Haggard's English Consistory Reports. 
 Hag. Ecc. Haggard's English Ecclesiastical Re- 
 ports. 
 Hag. (Utah). Hagan's Utah Reports. 
 Hag. (W. Va.). Hagan's Reports, West Virginia. 
 Hagan. Hagan's Reports, vols. 1-2 Utah. 
 Hagans. Hagans's Reports, vols. 1-5 West Vir- 
 ginia. 
 Hagg. See Hag. 
 
 Hagg. Adm. Haggard's Admiralty Reports, Eng- 
 lish. 
 
 Hagg. Con. or Hagg. Consist. Haggard's Consistory 
 Reports, English. 
 
 Hagg. Ecc. Haggard's Ecclesiastical Reports, Eng- 
 lish. 
 
 Hagn.&M. (Md.). Hagner and Miller's Maryland 
 Reports. 
 
 Hailes. Hailes's Decisions, Scotch Court of Ses- 
 sion. 
 Hailes Ann. Hailes's Annals of Scotland. 
 Haines Am. L. Man. Haines's American Law Man- 
 ual. 
 Hal. Law. Halsted's New Jersey Law Reports. 
 Hale. Cas. or Hale. Min. Cas. Halcomb's Mining 
 Cases, London, 1826.' 
 Hale. Hale's Reports, vols. 33-37 California. 
 Hale Anal. Hale's Analysis of the Law. 
 Hale C. L. or Hale Com. Law. Hale's History of 
 the Common Law. 
 Hale, De Jure Mar. Hale, De Jure Maris. 
 Hale Ecc. Hale's Ecclesiastical Reports, English. 
 Hale, Hist. Eng. Law. Hale's History of the Eng- 
 lish Law. 
 
 Hale Jur. H. L. Hale's Jurisdiction of the House 
 of Lords. 
 Hale P. C. Hale's Pleas of the Crown.
 
 ABBREVIATION 
 
 45 
 
 ABBREVIATION 
 
 Hale Prec. Hale's Precedents in (Ecclesiastical) 
 Criminal Cases. 
 
 Hale ,->um. Hale's Summary of Pleas. 
 
 llalk. Halkerston's Compendium of Scotch Facul- 
 ty Decisions ;— Halkerston's Digest of the Scotch 
 Marring.; Law ;— Halkerston's Latin Maxims. 
 
 llalk. Con, p. Halkerston's Compendium of Scotch 
 Faculty Decisions. 
 
 llalk. Dig. Halkerston's Digest of the Scotch Mar- 
 riage Law. 
 
 Halk. Lat. Max. Halkerston's Latin Maxims. 
 
 Hall. Hall's New York Superior Court Reports;— 
 Hall's Reports, vols. 66. 57 New Hampshire ;— Hal- 
 lett'a Reports, vols. 1, 2 Colorado. 
 
 llall Aclin. Hall's Admiralty Practice. 
 
 Hall Am. L. J. American Law Journal (Hall's). 
 
 Hall. (Col.). Hallett's Colorado Reports. 
 
 Hall. Const. Hist. Hallam's Constitutional History 
 of England. 
 
 Hall, Emeriy. Mar. Loans. Hall, Essay on Mari- 
 time Loans from the French of Emgrigon. 
 
 llall, Int. Law. Hall on International Law. 
 
 llall Jour. Journal of Jurisprudence (Hall's). 
 
 Hall L. J. American Law Journal (Hall's). 
 
 Hall. Law of W. Halleck's International Law and 
 Law of War. 
 
 Hall, Marit. Loans. Hall, Essay on Maritime 
 Loans from the French of Emfirlgon. 
 
 Hall, Mex. Law. Hall, Laws of Mexico Relating 
 to Real Property, etc. 
 
 Hall. Middle Ages. Hallam's Middle Ages. 
 
 Hall Neut. Hall on Neutrals. 
 
 Hall (N. H.). Hall's New Hampshire Reports. 
 
 Hall, Profitb d Prendre. Hall, Treatise on the Law 
 Relating to Profits a Prendre, etc. 
 
 Hall Sea Sh. Hall on the Sea Shore. 
 
 Hall & Tw. Hall and Twell's Reports, English 
 Chancery. 
 
 Hallam. Hallam's Middle Ages. 
 
 Hallam's Const. Hist. Hallam's Constitutional His- 
 tory of England. 
 
 Hallam, Mid. Ages. Hallam's Middle Ages. 
 
 Hallett. Hallett's Reports, Colorado Reports, vols. 
 1-2. 
 
 Hallifax, Anal, or Hallifax Civil Law. Hallifax's 
 Analysis of the Civil Law. 
 
 Hals, or Halst. or Halst. L. Halsted's New Jersey 
 Law Reports, vols. 6-12. 
 
 Halst. Ch. or Halst. Eq. Halsted's Chancery Re- 
 ports, New Jersey Equity. 
 
 Halst. Ev. Halsted's Digest of the Law of Evi- 
 dence. 
 
 Ham. Hammond's Nisi Prius ; — Hammond's Re- 
 ports, vols. 1-9 Ohio ;— Hamilton's Reports, Scotch 
 Court of Session. 
 
 Ham. A. & 0. Hammerton, Allen & Otter, English 
 Magistrates' Cases, vol. 3 New Sessions Cases. 
 
 Ham. N. P. Hammond's Nisi Prius. 
 
 Ham. Parties. Hammond on Parties to Action. 
 
 Hamel, Cust. Hamel's Laws of the Customs. 
 
 Hamilton. (Hamilton of) Haddington's Manu- 
 script Cases, Scotch Court of Session ; — Hamilton, 
 American Negligence Cases. 
 
 Hamlin. Hamlin's Reports, vols. 81-99 Maine. 
 
 Hamm. A. & 0. Hamerton, Allen & Otter's Magis- 
 trate Cases, English Courts, vol. 3 New Session 
 Cases. 
 
 Hamm. F. Ins. Hammond on Fire Insurance. 
 
 Hamm. (Ga.). Hammond's Reports, Georgia. 
 
 Hamm. Insan. Hammond on Insanity. 
 
 Hamm. (Ohio). Hammond's Reports, Ohio. 
 
 Hamm. N. P. Hammond's Nisi Prius. 
 
 Hamm. Part. Hammond on Parties to Action. 
 
 Hamm. PI. Hammond's Principles of Pleading. 
 
 Hamm. & J. Hammond and Jackson's Reports, 
 Georgia, vol. 45. 
 
 //./ mmond. Hammond's Reports, vols. 1-9 Ohio;— 
 Hammond's Reports, vols. 36-45 Georgia. 
 
 Hammond i£ Jackson. Hammond & Jackson's Re- 
 ports, vol. 45 Georgia. 
 
 Han. Handy's Ohio Reports ; — Hannay's Reports, 
 New Brunswick. 
 Han. Ent. Hansard's Entries. 
 Han. Horse. Hanover on the Law of Horses. 
 
 Han. (N. B.). Hannay's Reports, vols. 12, 13, New 
 Brunswick. 
 
 Hand. Hand's Reports, vols. 40-45 New York;— 
 Handy's Ohio Reports. 
 
 Hand Ch. Pr. Hand's Chancery Practice. 
 
 Hand Cr. Pr. Hand's Crown Practice. 
 
 Handy. Handy's Ohio Reports. 
 
 Hanes. Hanes's English Chancery. 
 
 Hanmer. Hanmer's Lord Kenyon's Notes, Eng- 
 lish King's Bench. 
 
 Hann. Hannay's Reports, New Brunswick. 
 
 Hans. Hansard's Entries. 
 
 Hans. Pari. Deb. Hansard's Parliamentary De- 
 bates. 
 
 Hansb. Hansbrough's Reports, vols. 76-90 Vir- 
 ginia. 
 
 Hanson. Hanson on Probate Acts, etc. 
 
 liar. Harmonized; — Harrison (see Harr.) ; — Har- 
 rington's Chancery Reports, Michigan. 
 
 liar. (Del.). Harrington's Reports, vols. 1-5 Del- 
 aware. 
 
 liar. St. Tr. Hargrave's State Trials. 
 
 Har. <£ O. or Har. & Gill. Harris and Gill's Re- 
 ports, Maryland. 
 
 Har. & J. or Har. & John. (Md.). Harris and John- 
 son's Reports, Maryland. 
 
 Har. if- McH. Harris and McHenry's Reports, Ma- 
 ryland. 
 
 Har. & Ruth. Harrison & Rutherford's English 
 Common Pleas Reports. 
 
 Har. d W. or Har. <i- Wall. Harrison and Wollas- 
 ton's Reports, English King's Bench. 
 
 Hare. Harcase's Decisions, Scotch Court of Ses- 
 sion. 
 
 Hard. Hardres's Reports, English Exchequer. 
 
 Hard, or Hardin (Ky.). Hardin's Reports, Ken- 
 tucky. 
 
 Hard. Stat. L. Hardcastle's Construction and Ef- 
 fect of Statutory Law. 
 
 Hardes. Hardesty, Delaware Term Reports. 
 
 Hardr. or Hardies. Hardres's English Exchequer 
 Reports. 
 
 Hardw. Cases tempore Hardwicke, by Ridgeway; 
 — Cases tempore Hardwicke, by Lee. 
 
 Hare. Hare's Reports, English Chancery. 
 
 Hare Const. Hare on the Constitution of the U. S. 
 
 Hare Dis. or Hare Ev. Hare on Discovery of Evi- 
 dence. 
 
 Hare £ W. or Hare & Wal. L. C. American Leading 
 Cases, edited by Hare & Wallace. 
 
 Harg. Hargrave's State Trials ;— Hargrove's Re- 
 ports, vols. 68-75 North Carolina. 
 
 Harg. C. B. M. Hargrave's Collection, British Mu- 
 seum. 
 
 Harg. Co. Litt. Hargrave's Notes to Coke on Lit- 
 tleton. 
 
 Harg. Coll. Hargrave's Judicial Arguments and 
 Collection. 
 
 Harg. Exer. Hargrave's Jurisconsult Exercita- 
 tions. 
 
 Harg. Jud. Arg. Hargrave's Judicial Arguments. 
 
 Harg. Law Tr. or Harg. Law Tracts. Hargrave's 
 Law Tracts. 
 
 Harg. Th. Hargrave on the Thellusson Act. 
 
 Harg. St. Tr. or Harg. State Tr. Hargrave's State 
 Trials. 
 
 Hargrove. Hargrove's Reports, vols. 6S-75 North 
 Carolina. 
 
 llarl.C.B.M. Harleian Collection, British Mu- 
 seum. 
 
 Harm. Harmon's Reports, vols. 13-15 California; 
 — Harmon's Upper Canada Common Pleas Reports. 
 
 Harm. (U. C). Harman's Common Pleas Reports, 
 Upper Canada. 
 
 Harp, or Harp. L. or Harp. L. S. C. Harper's South 
 Carolina Law Reports. 
 
 Harp. Con. Cos. Harper's Conspiracy Cases, Ma- 
 ryland. 
 
 Harp. Eq. Harper's Equity Reports, South Caro- 
 lina. 
 
 Harp. L. or Harp. L. 8. C. Harper's Law Reports, 
 South Carolina. 
 
 Harr. Harrison's Reports, New Jersey Law ;— 
 Harrington's Reports, Delaware; — Harrington's 
 Chancery Reports, Michigan ;— Harris's Reports,
 
 ABBREVIATION 46 
 
 vols. 13-24 Pennsylvania;— Harrison's Reports, vols. 
 15-17 and 23-29 Indiana. 
 Earr.Ch. Harrison's Chancery Reports, Mlchi- 
 
 Harr. Ch. Pr. Harrison's Chancery Practice. 
 
 Barr. Con. La. R. Harrison's Condensed Louisi- 
 ana Reports. 
 
 Earr (Del.). Harrington's Reports, Delaware. 
 
 Harr. Dig. Harrison's Digest of English Common 
 Law Reports. 
 
 Harr. Ent. Harris's Book of Entries. 
 
 Harr. (Ind.). Harrison's Reports, Indiana. 
 
 Harr. (Mich.). Harrington's Chancery Reports, 
 Michigan. 
 
 Harr. (N.J.) . Harrisons Reports, New Jersey 
 Law, vols. 16-19. 
 
 Harr (Pa.). Harris's Reports, Pennsylvania. 
 
 Harr.Proc. Harrison's Common Law Procedure 
 Act. 
 
 Harr d Q. Harris and Gill's Reports, Maryland. 
 
 Harr. d Hodg. Harrison & Hodgin's Upper Can- 
 ada Municipal Reports. 
 
 Harr. d J. Harris and Johnson's Reports, Mary- 
 land. 
 
 Harr. d McH. Harris and McHenry s reports, 
 
 Maryland. 
 
 Harr. A R. or Harr. d Ruth. Harrison and Ruther- 
 ford's Reports, English Common Pleas. 
 
 Harr. d S. or Harr. d Sim. Harris and Simrall s 
 Reports, Mississippi, vols. 49-52. 
 
 Harr. d W. or Harr. d Woll. Harrison and Woll- 
 aston's Reports, English King's Bench. 
 
 Barring. Harrington's Delaware Reports;— Har- 
 rington's Michigan Chancery Reports. 
 
 Harris. Harris's Reports, vols. 13-24 Pennsyl- 
 vania. 
 Harris Dig. Harris's Digest, Georgia. 
 Harris d Simrall. Harris & Simrall's Reports, 
 rols. 49-52 Mississippi. 
 
 Harrison. Harrison's Reports, vols. lo-17 and Zi- 
 29 Indiana. TT 
 
 Hart. Hartley's Reports, vols. 4-10 Texas ;— Hart- 
 ley's Digest of Texas Laws. 
 Hart. Dig. Hartley's Digest of Laws, Texas. 
 Hartley. Hartley's Reports, vols. 4-10 Texas. 
 Hartley d Hartley. Hartley & Hartley's Reports, 
 vols. 11-21 Texas. 
 Barv. Law Rev. Harvard Law Review. 
 Bask. Haskell's Reports, United States Courts, 
 Maine (Fox's Decisions). 
 Basl Med.Jur. Haslam's Medical Jurisprudence. 
 Hast. Hastings's Reports, vols. 69, 70 Maine. 
 Host. Tr. Sp. Speeches in the trial of Warren 
 Hastings, Ed. by Bond. 
 Bats Pr. Hatsell's Parliamentary Precedents. 
 Bav. Ch. Rep. Haviland's Chancery Reports, Prince 
 Edward Island. 
 
 Bav. P. E. I. Haviland's Reports, Prince Edward 
 Island. 
 
 Bavo. Hawkins (see Hawk.) ;— Hawaiian Reports; 
 — Hawley's Reports, vols. 10-20 Nevada. 
 
 Baw. Am. Cr. Rep. or Baw. Cr. Rep. Hawley's 
 American Criminal Reports. 
 Baw. W. C. or Baw. W. Cas. Hawes's Will Case. 
 Hawaii or Bawaiian Rep. Hawaii (Sandwich Is- 
 lands) Reports. 
 Bawk. Hawkin's Reports, Louisiana Annual. 
 Bawk. Abr. or Bawk. Co. Litt. Hawkins's Coke up- 
 on Littleton. . .-.,_, 
 Hawk. P. C. or Eaiok. PI. Cr. Hawkins s Pleas of 
 the Crown. 
 Bawk. W. Hawkins on Construction of Wills. 
 Hawkins. Hawkins's Reports, vols. 19-24 Louisi- 
 ana Annual. 
 Eawks. Hawks's North Carolina Reports. 
 Haicl. Cr. R. Hawley's American Criminal Re- 
 ports. 
 
 Bawl, or Bawley (Nev.). Hawley's Nevada Re- 
 ports and Digest. 
 
 Bawley Cr. R. Hawley's American Criminal Re- 
 ports. 
 
 Bay. Haywood's North Carolina Reports ;— Hay- 
 wood's Tennessee Reports (Haywood's Reports are 
 sometimes referred to as though numbered consecu- 
 tively from North Carolina through Tennessee);— 
 
 ABBREVIATION 
 
 Hayes's Irish Exchequer Reports. See also Hayes ■ 
 —Hayes's Reports, Calcutta;— Hay's Scotch Deci- 
 sions. 
 
 Bay Ace. or Bay Dec. or Hay Ace. Cas. Hay's De- 
 cisions on Accidents and Negligence. 
 Hay (Calc). Hay's Reports, Calcutta. 
 Hay. Conv. Hayes's Conveyancer. 
 Bay Dec. Hay's Decisions on Accidents and Neg- 
 ligence. 
 
 Hay. Est. or Hay. U. D. d T. Hayes on the Law 
 of Uses, Devises, and Trusts, with reference to the 
 Creation and Conveyance of Estates. 
 Hay. Exch. Hayes's Reports, Irish Exchequer. 
 Hay. Lim. Hayes on Limitations. 
 Bay P. L. Hay's Poor Law Decisions. 
 Bay. U. D. & T. Hayes on the Law of Uses, De- 
 vises, and Trusts, with reference to the Creation 
 and Conveyance of Estates. 
 
 Bay. d H. or Bay. d Has. Hayward & Hazelton's 
 United States Circuit Court Reports. 
 
 Hay. d J. Hayes and Jones's Reports, Irish Ex- 
 chequer. 
 Bay. d J. Wills. Hayes and Jarman on Wills. 
 Hay d M. or Hay d Marr. Hay & Marriott's Ad- 
 miralty Reports (usually cited, Marriott's Reports). 
 Hayes or Hayes Exch. Hayes's Irish Exchequer 
 Reports. 
 Eayes Conv. Hayes on Conveyancing. 
 Bayes d Jo. or Bayes d Jon. Hayes & Jones's 
 Irish Exchequer Reports. 
 
 Eaynes Lead. Cas. Haynes's Students' Leading 
 Cases. 
 Eaynes, Eq. Haynes's Outlines of Equity. 
 Hays R. P. Hays on Real Property. 
 Eayw. Haywood's North Carolina Reports;— Hay- 
 wood's Tennessee Reports (see Hay.). 
 Eayw. L. R. Hayward's Law Register, Boston. 
 Eayw. (N.C.). Haywood's Reports, North Caro- 
 lina. 
 Eayw. (Tenn.). Haywood's Reports, Tennessee. 
 Eayxo. d B. or Eayw. & H. (D. C). Hayward & 
 Hazelton's United States Circuit Court Reports. 
 Baz. Pa. Reg. Hazard's Pennsylvania Register. 
 Baz. U. S. Reg. Hazard's United States Register. 
 Baz. d Roch. M. War. Hazlitt and Roche on Mari- 
 time Warfare. 
 Bead. Head's Reports, Tennessee. 
 Beard Civ. PI. Heard's Civil Pleading. 
 Beard Cr. L. Heard's Criminal Law, Massachu- 
 setts. 
 Beard Cr. PI. Heard's Criminal Pleading. 
 Beard L. d SI. Heard on Libel and Slander. 
 Eeath. Heath's Reports, Maine. 
 Eeath Max. Heath's Maxims. 
 
 Beck. Cas. Hecker's Leading Cases on Warranty. 
 Bedges. Hedges's Reports, vols. 2-6 Montana. 
 Eein. Heineccius Opera. 
 
 Heinecc. Ant. Rom. Heineccius (J. G.) Antiquita- 
 tum Romanarum (Roman Antiquities.) 
 
 Heinecc. de Camb. Heineccius (J. G.) Elements 
 Juris Cambialis. 
 
 Heinecc. Elcm. Heineccius (J. G.) Elementa Ju- 
 ris Civilis (Elements of the Civil Law.) 
 Eeisk. Heiskell's Reports, Tennessee. 
 Eelm. Helm's Reports, Nevada Reports. 
 Bern. Hempstead, United States ;— Hemingway, 
 Mississippi. 
 
 Bern, d M. or Bern, d Mil. Hemming & Miller's 
 English Vice-Chancellors' Reports. 
 
 Eeming. (Miss.). Hemingway's Mississippi Re- 
 ports. 
 
 Eemp. Hempstead's United States Circuit Court 
 Reports. 
 
 Eempst. Hempstead's Reports, U. S. 9th Circuit 
 Ct. Reports. 
 
 Hen. King Henry; thus 1 Hen. I. signifies the 
 first year of the reign of King Henry I. 
 
 Hen. Bl. or Ben. Bla. Henry Blackstone's English 
 Common Pleas Reports. 
 Ben. For. Law. Henry on Foreign Law. 
 Ben. La. Dig. Hennen's Louisiana Digest. 
 Ben. Man. Cas. Henry's Manumission Cases. 
 Een. Va. J. P. Hening's Virginia Justice of the 
 Peace.
 
 Ai;r.Ki:viATiON 
 
 47 
 
 ABB] V!.\ 
 
 Hen. d M. or lien, d Mun. (Va.). Henlng & Mun- 
 ford's Virginia Reports. 
 
 Hcpb. Hepburn's Reports, vols. 3, 4 California. 
 
 Her. llerue's Pleader. 
 
 Her. Char. U. Heme's Law of Charitable Uses. 
 
 Uer. E itop. Herman on Estoppel. 
 
 Iler. Ex. Herman on Executions. 
 
 Her. II mt. or Her. Jur. Heron's History of Juris- 
 prudence. 
 
 Het.ov Hetl. Hetley's English Common Pleas Re- 
 ports. 
 
 Heyle Imp. D. Heyle's United States Import Du- 
 ties. 
 
 Heyw. Co. Haywood's Table of Cases, Georgia. 
 no. EL Heywood on Elections. 
 
 Hibb. Hibbard's Reports, vol. 20 Opinions Attor- 
 neys-General ;— Hlbbard's Reports, vol. C7 
 Hampshire. 
 
 llig. Dig. Pat. Cat. Higgln's Digest of Patent 
 Cases. 
 
 High. Bail. Highmore on Ball. 
 
 High Ct. or High Ct. R. High Court Reports, 
 Northwest Provinces of India. 
 
 High In). High on Injunction. 
 
 High Leg. Rem. High on Legal Remedies. 
 
 High. Lun. Highmore on Lunacy. 
 
 High. Mortm. Highmore on Mortmain. 
 
 UighRec. High on Recti'. 
 
 Hight. Hight's Reports, vols. 57-58 Iowa. 
 
 Hi'l. T Hilary Term. 
 
 Hildy M. Ins. Hildy on Marine Insurance. 
 
 Hill. Hill's New York Reports ;— Hill's Law Re- 
 ports, South Carolina. 
 
 Hill. Abr. Hilliard's Abridgment of the Law of 
 Real Property. 
 
 Hill. Am. Jur. Hilliard's American Jurisprudence. 
 
 Hill. Am. Law. Hilliard's American Law. 
 
 Hill. B. dins. Hilliard on Bankruptcy and In- 
 solvency. 
 
 Hill Ch. Hill's Chancery Reports, South Carolina. 
 
 HillCh.Pr. Hill's Chancery Practice. 
 
 Hill. Contr. Hilliard on Contracts. 
 
 Hill Eq. Hill's Equity, South Carolina Reports. 
 
 Hill Fixt. Hill on Fixtures. 
 
 Hill. Jnj. Hilliard on Injunction. 
 
 Hill. Mort. Hilliard on Mortg;< 
 
 Hill. N.T.ot Hill. New Trials. Hilliard on New 
 Trials. 
 
 Hill (N. Y.). Hill's Reports, New York. 
 
 Hill. R. P. or Hill. Real Prop. Hilliard on Real 
 Property. 
 
 Hill. Sales. Hilliard on Sales. 
 
 Hill S. C. Hill's South Carolina Reports (Law or 
 Equity). 
 
 Hill. Tax. Hilliard on the Law of Taxation. 
 
 Hill. Tort. Hilliard on Torts. 
 
 HillTr. Hill on Trustees. 
 
 Hill. Vend. Hilliard on Vendors. 
 
 Hill d D. or Hill d Den. (N. Y.). Hill and Denlo's 
 New York Reports. 
 
 Hill d Den. Sup. or Hill d Den. Supp. Lalor's Sup- 
 plement to Hill and Denlo's Reports, New York. 
 
 Hillyer. Hillyer's Reports, California Reports. 
 
 Hilt. Hilton's Reports, Common Pleas, New York. 
 
 Hind. Pat. Hindemarch on Patents. 
 
 Hinde Ch. Pr. Hinde, Modern Practice of the 
 High Court of Chruiecry. 
 
 Hines. Hines's K i*orts, vols. 83-98 Kentucky. 
 
 Ho. Lord Cos. House of Lords Cases (Clark's). 
 
 Hob. Hobart's Reports, English Common Pleas 
 and Chancery. 
 
 Hod. Hodge's Reports, English Common Pleas. 
 
 Hod. Railio. Hodge on the Law of Railways. 
 
 Hodg. Hodges's English Common Pleas Reports. 
 
 Ilodg. Can. El. Cas. (Out.). 
 
 Hodgin's Canada Election Cases. 
 
 Hoff. Hoffman's Land Cases, United States Dis- 
 trict Court ;— Hoffman's New York Chancery Re- 
 ports. 
 
 Hoff. Ch. Hoffman's New York Chancery Re- 
 ports. 
 
 Hoff. Ch. Pr. Hoffman's Chancery Practice. 
 
 Hoff. Ecc. L. Hoffman's Ecclesiastical Law. 
 
 Hoff. Land or Hoff. Land Ca. or Hoff. L. C. Hoff- 
 man's Land Cases, U. S. Dlst Ct. of California. 
 
 Hoff. Lead. Ca or L Cas. Hofftnan's Lead- 
 
 ing Cases, Commercial Law. 
 Hoff. Leg. St. Hoffman's Legal Studies. 
 Hoff. Has. Ch. or Hoff. Mast. Hoffman - In 
 
 Chancery. 
 
 Hoff. or Hoff. Ch. (N. Y.). Hoffman's Chancery Re- 
 ports, New York 
 
 Hoff.Outl. Hoffman's Outlines of Lepal Bl 
 
 Hoff. Publ. Pap. Hoffman's Public I' . 
 York. 
 
 Hoff. Ref. Hoffman on Referees. 
 
 Hoffm. Ch. Hoffman's New York Chancer, 
 ports. 
 
 Hog. Hogan's Irish Rolls Cour . — (Ho- 
 
 gan of) Harcarse'8 Scotch Session Ca 
 
 Hog.8t.Tr. Hogan's Pennsylvania State Trials. 
 
 Hogue. Hogue's Reports, Florida. 
 
 Hole. D. d Cr. Holcombe'a Law of Debtor and 
 Creditor. 
 
 Hole. L. Cas. Holcombe'a Leading Cases of Com- 
 mercial Law. 
 
 Hole. Dig. Holcombe'a Di-- 
 
 Hoi''. Eq. Jur. Holcombe's Equity Jurisprudence. 
 
 Hole. I. end. Cas. Holcombe's Leading Cases on 
 Commercial Law. 
 
 IIol. Inst. Holland's Institutes of Justinian. 
 
 Holl.Jur. Il'ilb.nd's Elements of Jurisprudence. 
 
 IIoll. or Hollinshcad (Minn.). Hollinshead's Min- 
 nesota Reports. 
 
 Holm, or Holmes. Holmes's United States Circuit 
 Court Reports ; — Holmes's Reports, vols. 15-17 Ore- 
 gon. 
 
 Holt. Holt's English King's Eeneh Reports :— 
 Holt's English Nisi Prius Reports ;— Holt's English 
 Equity Reports. 
 
 Holt Adm. or Holt Adm. Cas. Holt's Admiralty 
 Cases. (Rule of the Road at Sea.) 
 
 Holt Ch. Holt's Equity V. C. Court. 
 
 Holt Eq. or Hoff Eq. Rep. Holt's Ensrl!<=h Equity 
 Reports. 
 
 Holt K B. Holt's English King's n»nch R 
 
 Holt. L. Die. Holthouse'a Law i 
 
 Holt N. P. Holt's Nisi Prius Reports, English 
 Courts. 
 
 Holt R. of R. or Hoff Rule of R. Holt's Rule of the 
 Road Cases. 
 
 Holt Sh. Holt on Shipping. 
 
 Holthouse or Holthouse Die. Holthouse's Law Dic- 
 tionary. 
 
 Holtz. Ene. HoltzendorfT. Eneyclopadie der Reehts- 
 wlssenschaft. (Encyclopedia of Jurlsprndei 
 
 Home or Home TI. Dee. Home's Manuscript 
 sions, Scotch Court of Session. See also Kames. 
 
 Hood Ex. Hood on Executors. 
 
 Hook, or Hooker. Hooker's Reports, Connecticut. 
 
 Hoon. or Iloonahan. Hoonahan's Sind 
 dia. 
 
 Hop. d C. Hor.wood & Coltman's English Regis- 
 tration Appeal Cases. 
 
 Hop. & Ph. Hopwood & Philbrick's English Reg- 
 istration Api 
 
 Hope. Hope (of Kerse) Manuscript Decisions, 
 Scotch Court of Session. 
 
 Hope Min. Pr. 1' nor Practicks, Scotland. 
 
 H<'}ik. Hopkinson's V,' 
 
 Hopk. Adm. Hopkinson's Pennsylvania Admiral- 
 ty Judgments. 
 
 Hopk. Adm. Dee. Admiralty Decisions of H 
 son in Gilpin's Reports. 
 
 Hopk. Ch. Hopkins's Chancery II 
 Judg. Hopkinson's I' 
 Judgments. 
 
 1I< \,k. Mar. Ins. Hopkins on Marine Insurance. 
 orllopw.dC It. Hopwood and Colt- 
 man's English Registration 
 
 Hopw. d P. or Hopw. i ; wood and Phil- 
 
 brick's English R 
 
 Hor. d Th. Cas. Horrlgan & Thompson's Cases on 
 
 .. II. Horn and Hurlstone'a Reports, Eng- 
 lish Exchequer. 
 
 Home Mir. or Home M. J. Home's Mirror of Jus 
 ■ 
 
 Homer. Horner's Reports, vols. 11-28 South Da- 
 kota.
 
 ABBREVIATION 
 
 48 
 
 ABBREVIATION 
 
 Horr. £ Th. or Horr. & T. Cas. Horrigan & Thomp- 
 son's Cases on Self-Defense. 
 
 Horw. Y. B. (Horwood's). Year-Books of Edward I. 
 
 Hoskins. Hoskins's Reports, vol. 2 North Dakota. 
 
 Houard Ang.-Sax. Laws. Houard's Anglo-Saxon 
 Laws and Ancient Laws of the French. 
 
 Houard Diet. Houard's Dictionary of the Cus- 
 toms of Normandy. 
 
 Hough Am. Con. Hough on the American Consti- 
 tution. 
 
 Hough C. M. Hough on Court Martial. 
 
 Hough C.-M. Cas. Hough's Court-Martial Case 
 Book, London, 1821. 
 
 Houghton. Houghton's Reports, vol. 97 Alabama. 
 
 Hous. Houston's Delaware Reports. 
 
 Hous. Pr. Housman's Precedents in Conveyanc- 
 ing. 
 
 House of L. House of Lords, House of Lords 
 Cases. 
 
 Houst. Houston's Reports, Delaware. 
 
 Houst. Cr. Cas. Houston's Criminal Cases, Dela- 
 ware. 
 
 Houst. on St. in Tr. Houston on Stoppage In Tran- 
 situ. 
 
 Hov. Hovenden on Frauds; — Hovenden's Supple- 
 ment to Vesey, Jr.'s, English Chancery Reports. 
 
 Hov. Fr. Hovenden on Frauds. 
 
 Hov. Sup. or Hov. Sup. Ves. Hovenden's Supple- 
 ment to Vesey, Jr.'s, English Chancery Reports. 
 
 Hoved. Hoveden, Chronica. 
 
 How. Howard's United States Supreme Court Re- 
 ports; — Howard's Mississippi Reports ; — Howard's 
 New York Practice Reports ;— Howell's Reports, 
 vols. 22-26 Nevada. 
 
 How. App. or How. App. Cas. Howard's New York 
 Court of Appeals Cases. 
 
 How. Cas. Howard's New York Court of Appeals 
 Cases;— Howard's Popery Cases, Ireland. 
 
 How. Cr. Tr. Howison's Criminal Trials, Virginia. 
 
 How. (Miss.). Howard's Reports, Mississippi. 
 
 How. (N. Y.). Howard's Reports, N. Y. Court of 
 Appeals. 
 
 How. N. S. Howard's New York Practice Reports, 
 New Series. 
 
 How. Pop. Cas. Howard's Popery Cases, Ireland. 
 
 How. Pr. Howard's New York Practice Reports. 
 
 How. Pr. N. S. Howard's New York Practice Re- 
 ports, New Series. 
 
 How. Prac. or How. Pr. R. (N. Y.J. Howard's New 
 York Practice Reports. 
 
 Hoio. S. C. Howard's United States Supreme Court 
 Reports. 
 
 Hoxo. St. Tr. or How. State Tr. Howell's English 
 State Trials. 
 
 How. U. S. Howard's Reports, U. S. Supreme 
 Court. 
 
 How. & Beat. Howell & Beatty's Reports, Nevada. 
 
 How. & Nor. Howell & Norcross's Reports, Ne- 
 vada. 
 
 Howe Pr. Howe's Practice, Massachusetts. 
 
 Howell N. P. Howell's Nisi Prius Reports, Michi- 
 gan. 
 
 Hu. Hughes's United States Circuit Court Re- 
 ports ; — Hughes's Kentucky Reports. 
 
 Hub. Leg. Dir. or Hub. Leg. Direc. Hubbell's Le- 
 gal Directory. 
 
 Hub. Prcel. J. C. Huber, Pra?lectiones Juris Civ- 
 ilis. 
 
 Hubb. Hubbard's Reports, Maine. 
 
 Hubb. Succ. Hubback's Evidence of Succession. 
 
 Hubbard. Hubbard's Reports, Maine. 
 
 Hud. & B. or Hud. & Br. Hudson and Brooke's Re- 
 ports, Irish King's Bench. 
 
 Hud. & Will. Dig. (U. S.). Hudson and William's 
 United States Digest. 
 
 Hugh. Hughes's United States 4th Circuit Court 
 Reports; — Hughes's Kentucky Reports. 
 
 Hugh. Con. Hughes's Precedents in Conveyancing. 
 Hugh. Ent. Hughes's Book of Entries. 
 
 Hugh. Ins. Hughes on Insurance. 
 
 Hugh. (Ky.). Hughes's Reports, Kentucky. 
 Hugh. Wills. Hughes on Wills. 
 Hugh. Writs. Hughes on Writs. 
 Hughes. Hughes's United States Circuit Court Re- 
 ports. 
 Hughs Abr. Hughs's Abridgment. 
 
 Hugo, Hist, du Droit Rom. Hugo, Histolre du 
 Droit Romain. 
 
 Hum. (Tenn.). Humphrey's Tennessee Reports. 
 
 Hume. Hume's Decisions, Scotch Court of Ses- 
 sion. 
 
 Hume Com. or Hume Cr. L. Hume's Commentaries 
 on Criminal Law of Scotland. 
 
 Hume, Hist. Eng. Hume's History of England. 
 
 Humph. (Tenn.). Humphrey's Reports, Tennessee. 
 
 Humph. R. P. Humphrey on Real Property. 
 
 Hun. Hun's New York Supreme Court Reports, 
 also Appellate Division Supreme Court, New York. 
 
 Hunt or Hunt Ann. Cas. Hunt's Collection of An- 
 nuity Cases. 
 
 Hunt Bound. Hunt's Lav7 of Boundaries and 
 Fences. 
 
 Hunt Cas. Hunt's Annuity Cases. 
 
 Hunt, Eq. Hunt's Suit in Equity. 
 
 Hunt Fr. Conv. Hunt on Fraudulent Conveyances. 
 
 Hunt Mer. Mag. Hunt's Merchants' Magazine, New 
 York. 
 
 Hunt. Rom. L. or Hunter, Rom. Law. Hunter on 
 Roman Law. 
 
 Hunter, Suit Eq. Hunter's Proceeding In a Suit 
 in Equity. 
 
 Hur. Hurlstone (see Hurl.). 
 
 Hurd Hab. Corp. Hurd on Habeas Corpus. 
 
 Hurd Pers. Lib. Hurd on Personal Liberty. 
 
 Hurl. & C. or Hurl. & Colt. Hurlstone & Coltman's 
 English Exchequer Reports. 
 
 Hurl. & Gord. Hurlstone & Gordon's Reports, vols. 
 10, 11 English Exchequer. 
 
 Hurl. & N. or Hurl, d- Nor. Hurlstone & Norman's 
 English Exchequer Reports. 
 
 Hurl. & Walm. Hurlstone & Walmsley's English 
 Exchequer Reports. 
 
 Hurlst. & C. Hurlstone and Coltman's Reports, 
 English Exchequer. 
 
 Hurlst. & G. Hurlstone and Gordon's Reports, 
 English Exchequer. 
 
 Hurlst. & N. Hurlstone and Norman's Reports, 
 English Exchequer. 
 
 Hurlst. & W. Hurlstone and Walmsley's Reports, 
 English Exchequer. 
 
 Husb. Mar. Worn. Husband on Married Women. 
 
 Hust. L. T. Huston on Land Titles in Pennsyl- 
 vania. 
 
 Hut. Hutton's Reports, English Common Pleas. 
 
 Hutch. Hutcheson's Reports, vol. 81 Alabama. 
 
 Hutch. Car. Hutchinson on Carriers. 
 
 Hutt. Hutton's English Common Pleas Reports. 
 
 Hux. Judg. Huxley's Judgments. 
 
 Hyde. Hyde's Reports, India. 
 
 I. Idaho; — Illinois; — Indiana; — Iowa; — Irish (see 
 Ir.) ; — The Institutes of Justinian. 
 
 I. A. Irish Act. 
 
 J. C. C. Interstate Commerce Commission Reports. 
 
 I. C. L. R. Irish Common Law Reports. 
 
 I. C. R. Irish Chancery Reports ; — Irish Circuit 
 Reports. 
 
 I. E. R. Irish Equity Reports. 
 
 /. J. C. or I. J. Cas. Irvine's Justiciary Cases, 
 Scotch Justiciary Court. 
 
 /. Jur. Irish Jurist, Dublin. 
 
 L Jur. N. S. Irish Jurist, New Series, Dublin. 
 
 I. L. T. Irish Law Times, Dublin. 
 
 I. O. U. I owe you. 
 
 I. P. Institutes of Polity. 
 
 /. R. Irish Reports. 
 
 I. R. C. L. Irish Reports, Common Law Series. 
 
 J. R. Eq. Irish Reports, Equity Series. 
 
 /. R. R. Internal Revenue Record, New York. 
 
 I. T. R. Irish Term Reports, by Ridgway, Lapp 
 and Schoales. 
 
 la. Iowa;— Iowa Reports. 
 
 lb. or Id. Ibidem or Idem, The same. 
 
 Ida. or Idaho. Idaho;— Idaho Reports. 
 
 Iddings T. R. D. Iddings's Dayton Term Reports. 
 
 II Cons, del Mar. II Consolato del Mare. See 
 Consolato del Mare, in the body of this work. 
 
 III. Illinois ;— Illinois Reports. 
 
 III. App. Illinois Appellate Court Reports. 
 
 Imp. C. P. Impey's Practice, Common Pleas. 
 
 Imp. Fed. Imperial Federation, London. 
 
 Imp. K. B. Impey's Practice, King's Bench. 
 
 Imp. PL Impey's Pleader's Guide.
 
 ABBREVIATION 
 
 49 
 
 ABBREVIATION 
 
 Imp. Pr. C. P. ImpeVn Practice in r.oromon Pleaa. 
 
 Imp. Pr. K. B. Impey's Practice in King's Bench. 
 
 Imp Sh. Impey's Office of Sheriff. 
 
 In Dom. Proc. In the House of Lords. See Dom. 
 Proc. 
 
 In f. In fine. At the end of the title, law, or 
 paragraph quoted. 
 
 In pr. In principlo. At the beginning of a law, 
 before the first paragraph. 
 
 In sum. In summa. In the summary. 
 
 Ind. Indiana;— Indiana Reports ;— India;— (East) 
 Indian. 
 
 Ind. App. Law Reports, Indian Appeals;— Indiana 
 Appeals. 
 
 Ind. App. Sup. or Ind. App. Supp. Indian Appeals 
 Supplement, P. C. 
 
 Ind.Jur. Indian Jurist, Calcutta ;— Indian Jurist, 
 Madras. 
 
 Ind. L. Mag. Indiana Law Magazine. 
 
 Ind. L. R. (East) Indian Law Reports. 
 
 Ind. L. It. All. or Ind. L. R. Alia. Allahabad Se- 
 ries of Indian Law Reports. 
 
 Ind. L. R. Bomb. Indian Law Reports, Bombay 
 Series. 
 
 Ind. L. R. Calc. Indian Law Reports, Calcutta Se- 
 ries. 
 
 Ind. L. R. Mad. Indian Law Reports, Madras Se- 
 ries. 
 
 Ind. L. Reg. Indiana Legal Register, Lafayette. 
 
 Ind. L. Rep. Indiana Law Reporter. 
 
 Ind. Rep. Indiana Reports;— Index Reporter. 
 
 Ind. Super. Indiana Superior Court Reports (Wil- 
 son's). 
 
 Ind. T. Indian Territory;— Indian Territory Re- 
 ports. 
 
 Inder. Com. L. Indermaur's Principles of the 
 Common Law. 
 
 Inder. L. C. Com. L. Indermaur's Leading Com- 
 mon Law Cases. 
 
 Inder. L. C. Eq. Indermaur's Leading Equity 
 Cases. 
 
 Index Rep. Index Reporter. 
 
 Inf. Infra. Beneath or below. 
 
 Ing. Dig. Ingersoll's Digest of the Laws of the 
 U. S. 
 
 Ing. Roc. Ingersoll's Roccus. 
 
 Ing. Yes. Ingraham's edition of Vesey, Jr. 
 
 Ingr. Insolv. Ingraham on Insolvency. 
 
 Inj. Injunction. 
 
 Ins. Insurance. Insolvency. 
 
 Ins. L. J. Insurance Law Journal, New York and 
 St. Louis. 
 
 Ins. L. Mon. Insurance Law Monitor New York. 
 
 Ins. Rep. Insurance Reporter, Philadelphia. 
 
 Inst. Institutes ; when preceded by a number 
 denoting a volume (thus 1 lust.), the reference is to 
 Coke's Institutes; when followed by several num- 
 bers (thus Inst. 4, 2, 1), the reference Is to the In- 
 stitutes of Justinian. 
 
 J, 2, Inst. (1, 2) Coke's Inst. 
 
 Inst., 1, 2, S. Justinian's Inst. lib. 1, tit. 2, J 3. 
 
 Inst., 1, 2, SI. Justinian's Institutes, lib. 1, tit. 
 2, § 31. 
 
 The Institutes of Justinian are divided into four 
 books, — each book is divided into titles, and each 
 title into paragraphs, of which the first, described 
 by the letters pr., or princip., is not numbered. The 
 old method of citing the Institutes was to give the 
 commencing words of the paragraph and of the 
 title ; e. g., § si adversus, Inst, de Nuptiis. Some- 
 times the number of the paragraph was introduced, 
 e. g., § 12, si adversus, Inst, do Nuptiis. The mod- 
 ern way is to give the number of the book, title, 
 and paragraph, thus;— Inst. I. 10, 12; would be read 
 Inst., Lib. I. tit. 10, § 12. 
 
 Inst. Cler. Instructor Clericalis. 
 
 Inst. Com. Com. Interstate Commerce Commission 
 Reports. 
 
 Inst. Epil. Epilogue to [a designated part or vol- 
 ume of] Coke's Institutes. 
 
 Inst. Jur. Angl. Institutiones Juris Angllcanl, by 
 Doctor Cowell. 
 
 Inst. Proem. Proeme [introduction] to [a designat- 
 ed part or volume of] Coke's Institutes. 
 
 Instr. Cler. Instructor Clericalis. 
 
 BOUV.— 4 
 
 Int. Case. Rowe's Interesting Cases, English and 
 Irish. 
 
 Int. Com. Rep. Interstate Commerce Reports. 
 
 Int. Private Law. Westlake's Private Inter 
 al Law. 
 
 Int. Rev. Rec. Internal Revenue Record, New Yor!: 
 
 Iowa. Iowa Reports. 
 
 Iowa Univ. L. Bui. Iowa University Law E 
 
 Ir. Irish;— Ireland ;— Iredell's North Carol!: 
 or Equity Reports. 
 
 Ir. Ch. or Ir. Ch. N. S. Irish Chancery Rep 
 
 Ir. Cir. or Ir. Cir. Rep. Irish Circuit Reports. 
 
 Ir. C. L. or Ir. Com. Law Hep. or Ir. L. 
 Irish Common Law Reports. 
 
 Ir. Eccl. Irish Ecclesiastical Reports, by Mllward. 
 
 Ir. Eq. Irish Equity Reports. 
 
 Ir. Jur. Irish Jurist, Dublin. 
 
 Ir. L. Irish Law Reports. 
 
 Ir. L. N. S. Irish Common Law Reports. 
 
 Ir. L. R. Irish Law Reports;— The Law Reports, 
 Ireland, now cited by the year. 
 
 Ir. Law Rec. Irish Law Recorder. 
 
 Ir. Law Rep. Irish Law Reports. 
 
 Ir. Law Rep. N. S. Irish Common Law Reports. 
 
 Ir. L. T. Irish Law Times and Solicitors's Jour- 
 nal, Dublin. 
 
 Ir. L. T. Rep. Irish Law Times Reports. 
 
 Ir. Law d Ch. Irish Law and Equity Reports, New 
 Series. 
 
 Ir. Law £ Eq. Irish Law and Equity Reports, Oil 
 Series. 
 
 //. ft. <:. I., lri-li ;:• ports, Common Law Series. 
 
 Ir. R. Eq. Irish Reports, Equity Series. 
 
 Ir. R. Reg. App. Irish Reports, Registration Ap- 
 peals. 
 
 Ir. R. Reg. & L. or Ir. Reg. <£ Land Cos. Ir; 
 Registry and Land Cases. 
 
 Ir. lcrp. Reg. App. Irish Reports, Registration Ap- 
 peals. 
 
 Ir. Rep. Reg. & L. Irish Reports, Registry and 
 Land Cases. 
 
 Ir. St. Tr. Irish State Trials (Ridgeway's). 
 
 Ir. T. R. or Ir. Term Rep. Irish Term Reports (by 
 Ridgeway, Lapp & Sehoules). 
 
 Ired. Iredell's North Carolina Law Reports. 
 
 Ired. Dig. Iredell's Digest. 
 
 Ired. Eq. Iredell's Equity Reports, North Caro- 
 lina. 
 
 Ired. L. Iredell's Law Reports, North C.i ■ 
 
 Irv. Irvine's Justiciary Cases, Scotch Justiciary 
 Court 
 
 Iv. Ersk. Ivory's Notes on Erskine's Institute-. 
 
 Ir.R.lS9i. Irish Law Reports for year lS9i. 
 
 J. Justice ; — Institutes of Justinian ; — Johnson's 
 New York Reports. 
 
 J. Adv. Gen. Judge Advocate General. 
 
 J. C. Johnson's Cases, New York Supreme Court ; 
 — Juris Consultus. 
 
 J. C. P. Justice of the Common Pleas. 
 
 J. Ch. or J. C. R. Johnson's New York Chancery 
 Reports. 
 
 J. d'Ol. Les Jugemens d'Oleron. 
 
 J.etJ. De Justitia et Jure. 
 
 J. Glo. Juncta Glossa. 
 
 J. H. Journal of the House. 
 
 JJ. Justices. 
 
 J. J. Mar. or J. J. Marsh. (Ky.). J. J. Marshall's 
 Reports, Kentucky. 
 
 J. K. B. Justice of the King's Bench. 
 
 J. Kel. Sir John Kelyug's English Crown Cases. 
 
 J. P. Justice of the Peace. 
 
 J.P.Sm. J. P. Smith's English King's Bench Re- 
 ports. 
 
 J. Q. B. Justice of the Queen's Bench. 
 
 J. R. Johnson's New York Reports. 
 
 J. s. Gr. (N.J.J. J. S. Green's New Jersey Re- 
 ports. 
 
 J. Scott. Reporter English Common Bench Re- 
 ports, 
 
 J. U. B. Justice of the Upper Bench. 
 
 7. Yuet, Com. ad Pand. Voet (Jan), Commentarlus 
 ad Pandectas. 
 
 J.&1J. Johnson and Hemmlug's Reports, English 
 Chancery.
 
 ABBREVIATION 
 
 50 
 
 ABBREVIATION 
 
 J. & L. or J. & La T. Jones & La Touche's Irish 
 Chancery Reports. 
 
 J. & S. Jones & Spencer's New York Superior 
 Court Reports. 
 
 J. & S. Jam. Judah & Swan's Jamaica Reports. 
 
 J. & W. Jacob and Walker's Reports, English 
 Chancery. 
 
 Jac. Jacobus ; — Jacob's English Chancery Re- 
 ports ; — Jacob's Law Dictionary ;— King James ; thus 
 1 Jac. I. signifies the first year of the reign of King 
 James I. 
 
 Jac. Diet, or Jac. L. D. Jacob's Law Dictionary. 
 
 Jac. Fish. Dig. Jacob's Fisher's Digest. 
 
 Jac. Int. Jacob's Introduction to the Common, 
 Civil and Canon Law. 
 
 Jac. L. O. Jacob's Law Grammar. 
 
 Jac. Lex Mer. Jacob's Lex Mercatoria, or the Mer- 
 chant's Companion. 
 
 Jac. Sea Law. Jacobsen's Law of the Sea. 
 
 Jac. & W. or Jac. & Walk. Jacob & Walker's Eng- 
 lish Chancery Reports. 
 
 Jack. Jackson's Reports, Georgia. 
 
 Jack. Tex. App. Jackson's Texas Court of Appeals 
 Reports. 
 
 Jack, d G. Landl. d Ten. Jackson & Gross, Trea- 
 tise on the Law of Landlord and Tenant in Penn- 
 sylvania. 
 
 Jackson. Jackson's Reports, vols. 43-66 Georgia ;— 
 Jackson's Reports, vols. 1-29 Texas Court of Ap- 
 peals. 
 
 Jackson & Lumpkin (Ga.). Jackson & Lumpkin's 
 Georgia Reports. 
 
 Jacob. Jacob's Law Dictionary. 
 
 James. James's Reports, Nova Scotia. 
 
 James. Const. Con. Jameson on Constitutional 
 Conventions. 
 
 James (N. Sc). James's Reports, Nova Scotia. 
 
 James Op. James's Opinions, Charges, etc., Lon- 
 don, 1820. 
 
 James Sel. Cas. or James Sel. Cases. James's Select 
 Cases, Nova Scotia. 
 
 James. & Mont. Jameson and Montagu's English 
 Bankruptcy Reports (in 2 Glyn and Jameson). 
 
 Jan. Angl. Jani Anglorum. 
 
 Jar. Ch. Pr. Jarman's Chancery Practice. 
 
 Jar. Cr. Tr. Jardine's Criminal Trials. 
 
 Jar. Pow. Dev. Powell on Devises, with Notes by 
 Jarman. 
 
 Jar. Prec. Bythewood and Jarman's Precedents. 
 
 Jar. Wills. Jarman on Wills. 
 
 Jard. Tr. Jardine's Criminal Trials. 
 
 J arm. Ch. Pr. Jarman's Chancery Practice. 
 
 Jarm. Pow. Dev. Powell on Devises, with Notes 
 by Jarman. 
 
 Jarm. Wills. Jarman on Wills. 
 
 Jarm. & By. Conv. Jarman and Bythewood's Con- 
 veyancing. 
 
 Jctus. Jurisconsultus. 
 
 Jebb or Jebb C. C. or Jebb Cr. Cas. or Jebb Ir. Cr. 
 Cas. Jebb's Irish Crown Cases. 
 
 Jebb Cr. & Pr. Cas. Jebb's Irish Crown and Pre- 
 sentment Cases. 
 
 Jebb & B. Jebb and Bourke's Reports, Irish 
 Queen's Bench. 
 
 Jebb & S. or Jebb & Sym. Jebb and Symes's Re- 
 ports, Irish Queen's Bench. 
 
 Jetf. Jefferson's Reports, Virginia. 
 
 Jeff. Man. Jefferson's Manual of Parliamentary 
 Law. 
 
 Jenk. or Jenk. Cent. Jenkins's Eight Centuries of 
 Reports, English Exchequer. 
 
 Jenks. Jenks's Reports, vol. 58 New Hampshire. 
 
 Jenn. Jennison's Reports, vols. 14-18 Michigan. 
 
 Jer. Eq. Jur. or Jeremy, Eq. Jur. Jeremy's Equity 
 Jurisdiction. 
 
 Jo. T. Sir T. Jones's Reports. 
 
 Jo. Juris. Journal of Jurisprudence. 
 
 Jo. & La T. Jones and La Touche's Reports, Irish 
 Chancery. 
 
 John. Johnson's New York Reports ;— Johnson's 
 Reports of Chase's Decisions; — Johnson's Maryland 
 Chancery Decisions ;— Johnson's English Vice-Chan- 
 cellors' Reports. 
 
 John. & H. Johnson and Hemming's Reports, Eng- 
 lish Chancery. 
 
 Johns. Johnson's Reports, New York Supreme 
 Court ; — Johnson's Reports of Chase's Decisions ; — 
 Johnson's Maryland Chancery Decisions ; — Johnson's 
 English Vice-Chancellors' Reports. 
 
 Johns. Bills. Johnson on Bills of Exchange, etc. 
 
 Johns. Cas. Johnson's Cases, New York Supreme 
 Court, 
 
 Johns. Ch. Johnson's New York Chancery Re- 
 ports ; — Johnson's English Vice-Chancellors' Re- 
 ports ; — Johnson's Maryland Chancery Decisions ;— 
 Johnston's Reports, New Zealand. 
 
 Johns. Ch. Cas. Johnson's Chancery Reports, New 
 York. 
 
 Johns. Ct. Err. Johnson's Reports, New York 
 Court of Errors. 
 
 Johns. Dec. Johnson's Maryland Chancery Deci- 
 sions. 
 
 Johns. Eccl. Law. Johnson's Ecclesiastical Law. 
 
 Johns. Eng. Ch. Johnson's English Chancery Re- 
 ports. 
 
 Johns. 11. B.V. Johnson's English Chancery Re- 
 ports. 
 
 Johns. (Md.). Johnson's Maryland Reports. 
 
 Johns. (New Zealand). Johnson's New Zealand 
 Reports. 
 
 Johns. Pat. Man. Johnson's Patent Manual. 
 
 Johns. Rep. Johnson's Reports, New York Su- 
 preme Court. 
 
 Johns. Tr. Johnson's Impeachment Trial. 
 
 Joluis. U. 8. Johnson's Reports of Chase's United 
 States Circuit Court Decisions. 
 
 Johns. V. C. or Johns. V. Ch. Cas. Johnson's Cases 
 in Vice-Chancellor Wood's Court. 
 
 Johns. & H. or Johns. & Hem. Johnson & Hem- 
 ming's English Chancery Reports. 
 
 Johnson. Johnson's Reports, New York ; — John- 
 sou's English Vice-Chancellors' Reports; — Johnson's 
 Maryland Chancery Decisions. 
 
 Johnst. Inst. Johnston's Institutes of the Law of 
 Spain. 
 
 Johnst. N. Z. Johnston's Reports, New Zealand. 
 
 Jon. Thos. Jones's Reports, English King's Bench 
 and Common Pleas ; — Wm. Jones's Reports, English 
 King's Bench and Common Pleas. 
 
 Jon. (Ala.). Jones's Reports, Alabama, 62. 
 
 Jon. Bailm. Jones's Law of Bailments. 
 
 Jon. B. & W. Jones, Barclay, and Whittelsey's 
 Reports, Missouri, vol. 31. 
 
 Jon. Corp. Sec. Jones on Corporate Securities. 
 
 Jon. Eq. Jones's Equity Reports, North Carolina. 
 
 Jon. Exch. Jones's Irish Exchequer Reports. 
 
 Jon. Inst. Jones's Institutes of Hindoo Law. 
 
 Jon. Intr. Jones's Introduction to Legal Science. 
 
 Jon. Ir. Exch. Jones's Reports, Irish Exchequer. 
 
 Jon. L. O. T. Jones on Land Office Titles. 
 
 Jon. (Mo.). Jones's Reports, Missouri. 
 
 Jon. (N. C.). Jones's Law Reports, North Caro- 
 lina. 
 
 Jon. (N. C.) Eq. Jones's Equity Reports, North 
 Carolina. 
 
 Jon. Mori. Jones on Mortgages. 
 
 Jon. (Pa.). Jones's Reports, Pennsylvania. 
 
 Jon. Railw. Sec. Jones on Railway Securities. 
 
 Jon. Salv. Jones on Salvage. 
 
 Jon. T. Thos. Jones's Reports, English King's 
 Bench and Common Pleas. Sometimes cited as 2 
 Jones. 
 
 Jon. (U. C). Jones's Reports, Upper Canada. 
 
 Jon. W. Wm. Jones's Reports,' English King's 
 Bench and Common Pleas. Sometimes cited as 1 
 Jones. 
 
 Jon. & C. or Jon. & Car. Jones and Cary's Reports, 
 Irish Exchequer. 
 
 Jon. & L. or Jon. & La T. Jones and La Touche's 
 Reports, Irish Chancery. 
 
 Jon. <Sc S. Jones and Spencer's Reports, New York 
 City Superior Court, vols. 33-46. 
 
 Jones. Jones's Reports, vols. 43-48, 52-57, 61, 62 Ala- 
 bama ; — Jones's Reports, vols. 11, 12 Pennsylvania ; — 
 Jones's Reports, vols. 22-31 Missouri ; — Jones's Law 
 or Equity Reports, North Carolina ; — Jones's Irish 
 Exchequer Reports ; — Jones's Upper Canada Com- 
 mon Pleas Reports ; — Jones & Spencer's New York 
 Superior Court Reports ;— Sir Thomas Jones's Eng
 
 ABBREVIATION 
 
 51 
 
 ABBREVIATION 
 
 llsh King's Bench Reports;— Sir William Jones's 
 English King's Bench Reports ;— See Jon. 
 
 Jones, JJailm. Jones's Law of Bailments. 
 
 Jones, Barclay & Whittelsey or Jones, B. & W. 
 (Mo.). Jones, Barclay and Whittelsey's Reports, 
 Missouri Supremo Court (31 Missouri^. 
 
 Jones, Chat. Mortg. Jones on Chattel Mortgages. 
 
 Jones Eq. Jones's North Carolina Equity Reports. 
 
 Jones, French Bar. Jones's History of the French 
 Bar. 
 
 Jones It. Jones's Irish Exchequer Reports. 
 
 Jones Law or Jones N. C. Jones's North Carolina 
 La"w Reports. 
 
 Jones (Fa.). Jones's Reports, vols. 11, 12 Pennsyl- 
 vania. 
 
 Jones T. Sir Thomas Jones's English King's 
 Bench Reports. 
 
 Junes U. C. Jones's Reports, Upper Canada. 
 
 Jones W. Sir William Jones's English King's 
 Bench Reports. 
 
 Jones & C. Jones & Cary's Irish Exchequer Re- 
 ports. 
 
 Jones & La T. Jones £ La Touche's Irish Chan- 
 cery Reports. 
 
 Jones & McM. (Pa.). Jones & McMurtrie's Penn- 
 sylvania Supreme Court Reports. 
 
 Jones & Spen. Jones & Spencer's New York Su- 
 perior Court Reports. 
 
 Jord. P. J. Jordan's Parliamentary Journal. 
 
 Josephs. Josephs's Reports, vol. 21 Nevada. 
 
 Jour. Jur. (Sc). Journal of Jurisprudence and 
 Scottish Law Magazine, Edinburgh. 
 
 Jour. Jur. Journal of Jurisprudence (Hall's), 
 Philadelphia. 
 
 Jour. Law. Journal of Law, Philadelphia. 
 
 Jour. Trib. Com. Journal des Tribunaux de Com- 
 merce, Paris. 
 
 Joy Chal. Joy on Challenge to Jurors. 
 
 Joy Ev. Ace. Joy on the Evidence of Accomplices. 
 
 Jud. Judgments. Judicial. Judicature ; — Book of 
 Judgments, English Courts. 
 
 Jud. Chr. Judicial Chronicle. 
 
 Jud. Com. of P. C. Judicial Committee of the 
 Privy Council. 
 
 Jud. Repos. Judicial Repository, New York. 
 
 Jud. & Sio. (Jamaica). Judah and Swan's Reports, 
 Jamaica. 
 
 Judd. Judd's Reports, vol. 4 Hawaii. 
 
 Jur. The Jurist Reports in all the Courts, Lon- 
 don. 
 
 Jur. Eccl. Jura Ecclesiastlca. 
 
 Jur. Mar. Molloy's De Jure Maritlmo. 
 
 Jur. N. S. The Jurist, New Series, Reports In all 
 the Courts, London. 
 
 Jur. (N. S.) Ex. Jurist (New Series) Exchequer. 
 
 Jur. N. Y. The Jurist or Law and Equity Report- 
 er, New York. 
 
 Jur. Ros. Roscoe's Jurist, London. 
 
 Jur. Sc. Scottish Jurist, Court of Session, Scot- 
 land. 
 
 Jur. Soc. P. Juridical Society Papers, London. 
 
 Jur. St. Juridical Styles, Scotland. 
 
 Jur. Wash. D. C. The Jurist, Washington, D. C. 
 
 Jurisp. The Jurisprudent, Boston. 
 
 Jus Nav. Rhod. Jus Navale Rhodiorum. 
 
 Just. Dig. Digest of Justinian, 50 books. Never 
 translated into English. 
 
 Just. Inst. Justinian's Institutes. See note follow- 
 ing "Inst. 1, 2. 31." 
 
 Just. Itin. Justice Itinerant or of Assize. 
 
 Just. P. The Justice of the Peace, London. 
 
 Just. S. L. Justice's Sea Law. 
 
 Just. T. Justice of Trailbaston. ■ 
 
 Juta. Juta's Cape of Good Hope Reports. 
 
 K. Keyes's New York Court of Appeals Reports; 
 — Kenyon's English King's Bench Reports;— Kansas 
 (see Kan.). 
 
 K. B. or [1901] K. B. Law Reports, King's Bench 
 Division, from 1901 onward. 
 
 K. B. (V.C.). King's Bench Reports, Upper Can- 
 ada. 
 
 K. C. King's Council. 
 
 K.C.R. Reports tempore King, English Chan- 
 cery. 
 K. <£• B. Dig. Kerford's and Box's Victorian Digest. 
 
 K. <t F. N. S. W. Knox & Fitzhardinge's New South 
 Wales Reports. 
 
 K. d- G. R. C. Keane £ Grant's Engl: ra- 
 
 tion Appeal Cases. 
 
 K.dJ. Kay & Johnson's English Vice-Cuancel- 
 lors' Reports. 
 
 K. d O. Knapp and Ombler's Election Cases, Eng- 
 lish. 
 
 Kam. or Kam. Dec. Karnes's Decisions, Scotch 
 Court of Session. 
 
 Kam. Eluc. Karnes's Elucidations of the Law of 
 Scotland. 
 
 Eq. Karnes's Principles of Equity. 
 
 Kam. Ess. Karnes's Essays. 
 
 Kam. H tot: L. Tr. or Kam. L. T. Karnes's Histori- 
 cal Law Tracts. 
 
 Kam. Rem. Dec. Karnes's Remarkable Decisions, 
 Scotch Court of Session. 
 
 Kam. Sel. Dec. Karnes's Select Decisions, Scotch 
 Court of Session. 
 
 Kam. Tr. Karnes's Historical Law Tracts. 
 
 Karnes, Eq. Karnes's Principles of Equity. 
 
 Kan. (or Kans.). Kansas; — Kansas Reports. 
 
 Kan. C. L. Rep. Kansas City Law Reporter. 
 
 Kan. L. J. Kansas Law Journal. 
 
 Kan. Univ. Lawy. Kansas University Lawyer, 
 Lawrence. 
 
 Kans. App. Kansas Appeals Reports. 
 
 Kay. Kay's English Vice-Chancellors' Reports. 
 
 Kay Sh. Kay on Shipping. 
 
 K <ni & J. or Kay <£■ J uhns. Kay and Johnson's Re- 
 ports, English Chancery. 
 
 Ke. Keen's English Rolls Court Reports. 
 
 Keane d G. R. C. or Keane d Gr. Keane and Grant's 
 English Registration Appeal Cases. 
 
 Keat. Fam. Sett. Keating on Family Settlements. 
 
 Keb. or Keble. Keble's Reports, English King's 
 Bench. 
 
 Keb. J. Keble's Justice of the Peace. 
 
 Keb. Stat. Keble's Statutes of England. 
 
 Keen. Keen's Reports, English Rolls Court. 
 
 Keen. Cas. Qua. font, or Keener, Quasi Contr. 
 Keener's Cases on Quasi Contracts. 
 
 Keil. or Keilw. Keilway's Reports, English King's 
 Bench. 
 
 Kel. 1. Sir John Kelyng's English Crown Cases. 
 
 Kel. 2. William Kelynge's English Chancery Re- 
 ports. 
 
 Kel. Ga. Kelly's Reports, Georgia Reports, vols. 
 1-3. 
 
 Kel. J. or 1 Kel. Sir John Kelyng's Reports, Eng- 
 lish Crown Cases. 
 
 Kel. W. or 2 Kel. W. Kelynge's Reports, English 
 Chancery and King's Bench. 
 
 Kel. d C. Kelly and Cobb's Reports, Georgia. 
 
 Kelh. Norm. L. D. or Kelliam. Kelham's Norman 
 French Law Dictionary. 
 
 n. Kellen's Reports, vols. 146-155 Massachu- 
 setts. 
 
 Kelly. Kelly's Reports, vols. 1-3 Georgia. 
 
 Kelly d Cor Kelly d Cobb. Kelly & Cobb's Re- 
 ports, vols. 4, 5 Georgia. 
 
 Kelyng,J. Kelyng's English Crown Cases. 
 
 Kelynge, W. Kelynge's English Chancery Re- 
 ports. 
 
 Kemble, Sax. Kemble, The Saxons in England. 
 
 Ken. Kentucky (see Ky.) ; — Kenyon English King's 
 Bench Reports. 
 
 Ken. Dec. Kentucky Decisions, by Sneed. 
 
 Ken. L. Rep. Kentucky Law Reporter. 
 
 Kenan. Kenan's Reports, vols. 76-91 North Caro- 
 lina. 
 
 Kenn. Gloss. Kennett's Glossary. 
 
 Kenn. Imp. Kennett on Impropriations. 
 
 Kenn. Par. Antiq. Kennett, Parocbial Antiquities. 
 
 Kcnnctt. Kennett's Glossary ;— Kennett upon Im- 
 propriations. 
 
 Kennett. Gloss. Kennett's Glossary. 
 
 Kent or Kent Com. or Kent Cotnm. Kent's Commen- 
 taries on American Law. 
 
 Keny. Kenyon's Notes, English King's Bench. 
 
 Keny. C. H. (or S Keny.). Chancery Reports at 
 the end of 2 Kenyon. 
 
 Kern. Kern's Reports, vols. 100-116 Indiana ;-- 
 Kernan's Reports, vols. 11-14 New York Court of 
 Appeals.
 
 ABBREVIATION 
 
 52 
 
 ABBREVIATION 
 
 Kerr. Kerr's Reports, Indiana ; — Kerr's New 
 Brunswick Reports ;— Kerr's Reports;— J. M. Kerr's 
 Reports, vols. 27-29 New York Civil Procedure. 
 Kerr Act. Kerr on Actions at Law. 
 Kerr Anc. L. Kerr on Ancient Lights. 
 Kerr Disc. Kerr on Discovery. 
 Kerr Extra. Kerr on Inter-State Extradition. 
 Kerr Fr. Kerr on Fraud and Mistake. 
 Kerr Inj . Kerr on Injunction. 
 
 Kerr (N. B.). Kerr's Reports, New Brunswick. 
 Kerr Rec. Kerr on Receivers. 
 Kerse. Kerse's Manuscript Decisions, Scotch 
 Court of Session. 
 
 Key. or Keyes. Keyes's Reports, New York Ct. of 
 Appeals. Sometimes cited as vols. 40-43 N. Y. 
 
 Keyes F. I. C. Keyes on Future Interest in Chat- 
 tels. 
 Keyes F. I. L. Keyes on Future Interest in Lands. 
 Keyes Rem. Keyes on Remainders. 
 Keyl. Keilwey's (or Keylway's) English King's 
 Bench Reports. 
 
 Kilk. Kilkerran's Reports, Scotch Court of Ses- 
 sion. 
 
 King. King's Reports, vols. 6, 6 Louisiana An- 
 nual. 
 
 King Cas. temp. Select Cases tempore King, Eng- 
 lish Chancery. 
 King's Conj. Ca. King's Conflicting Cases. 
 Kir. (Kirb.or Kirby). Kirby's Connecticut Re- 
 ports. 
 
 Kirt. Sur. Pr. Kirtland on Practice in Surrogates' 
 Courts. 
 
 Bitch, or Kitch. Courts or Kitchin. Kitchin on 
 Jurisdictions of Courts-Leet, Courts-Baron, etc. 
 
 Kn. or Kn. A. C. or Knapp or Knapp A. C. Knapp's 
 
 Appeal Cases (English Privy Council). 
 
 Kn. N. S. W. Knox, New South Wales Reports. 
 
 Kn. d M. or Kn. & Moo. or Knapp & M. Knapp and 
 
 Moore's Reports, vol. 3 Knapp's English Privy 
 
 Council. 
 
 Kn. & O. or Knapp & Omb. Knapp and Ombler's 
 Election Cases. 
 Knapp. Knapp's Privy Council Reports, England. 
 Knowles. Knowles's Reports, vol. 3 Rhode Island. 
 Knox. Knox, New South Wales Reports. 
 Knox & Fitz. Knox & Fitzhardinge, New South 
 Wales. 
 Kolze. Transvaal Reports by Kolze. 
 Kreider. Kreider's Reports, vols. 1-23 Washington. 
 Kress. Kress's Reports, vols. 166-194 Pennsyl- 
 vania; — Kress's Pennsylvania Superior Court. 
 
 Kulp. Kulp's Luzerne Legal Register Reports, 
 Pennsylvania. 
 Ky. Kentucky;— Kentucky Reports. 
 Ky. Dec. Kentucky Decisions, Sneed's Reports. 
 Ky. L. R. or Ky. L. Rep. Kentucky Law Reporter. 
 Kyd Aw. Kyd on the Law of Awards. 
 Kyi Bills. Kyd on Bills of Exchange. 
 Kyd Corp. Kyd on Corporations. 
 L. Lansing's Supreme Court Reports, New York ; 
 — Law. Loi. Liber. 
 L. A. Lawyers' Reports Annotated. 
 L. Alam. Law of the Alamanni. 
 L. Baiwar. or L. Boior. Law of the- Bavarians. 
 L. C. Lord Chancellor ; — Lower Canada ; — Leading 
 Cases. 
 L. C. B. Lord Chief Baron. 
 L. C. C. C. Lower Canada Civil Code. 
 L. C.C. P. Lower Canada Civil Procedure. 
 L. C. D. Lower Court Decisions, Ohio. 
 L. C. Eq. White and Tudor's Leading Cases In 
 Equity. 
 L. C. G. Lower Courts Gazette, Toronto. 
 L. C. J. Lord Chief Justice. 
 
 L. C. J. or L. C. Jur. Lower Canada Jurist, Mon- 
 treal. 
 L. C. L. J. Lower Canada Law Journal, Montreal. 
 L. C. R. Lower Canada Reports. 
 L. D. or L. Dec. Land Office Decisions, United 
 States. 
 L. Ed. Lawyers* Edition Supreme Court Reports. 
 L. F. Leges Forestarum. 
 L. Fr. Law French. 
 L. H. C. Lord High Chancellor. 
 L. I. Legal Intelligencer, Philadelphia. 
 
 L. I. L. Lincoln's Inn Library. 
 L. J. House of Lords Journal ; — Lord Justices 
 Court ;— The Law Journal, London. 
 
 L. J. or L. J. O. 8. Law Journal Reports, In all the 
 Courts. 
 
 L. J. Adm. Law Journal Reports, New Series, 
 English Admiralty. 
 
 L. J. App. Law Journal Reports, New Series, 
 English Appeals. 
 
 L. J. Bank, or L. J. Bankr. or L. J. Bk. Law 
 Journal Reports, New Series, English Bankruptcy 
 (1831 onward). 
 
 L. J. C. or L. J. C. P. Law Journal Reports, New 
 Series, English Common Pleas. 
 
 L. J. C. C. R. Law Journal, New Series, Crown 
 Cases Reserved. 
 
 L. J. Ch. Law Journal, New Series, English 
 Chancery Division (1831 on). 
 
 L.J.Ch.(O.S.J. Law Journal, Old Series, 1822,- 
 1831. 
 
 L. J. Chan. Law Journal Reports, New Series, 
 English Chancery Division (1831 on). 
 
 L. J. C. P. or L. J. C. P. D. Law Journal, New Se- 
 ries, Common Pleas Decisions. 
 
 L. J. D. d M. Law Journal, New Series, Divorce 
 and Matrimonial. 
 
 L. J. Ecc. Law Journal Reports, New Series, Ec- 
 clesiastical (1831 on). 
 
 L. J. Ex. or L. J. Exch. Law Journal, New Series, 
 Exchequer Division (1831 on). 
 
 L. J. H. L. Law Journal Reports, New Series, 
 English House of Lords. 
 L. J. K. B. Law Journal, King's Bench. 
 L. J. L. C. Law Journal, Lower Canada. 
 L. J. L. T. Law Journal, Law Tracts. 
 L. J. M. C. Law Journal, New Series, Divorce and 
 Matrimonial ;— Law Journal, Magistrates' Cases. 
 
 L. J. M. P. A. Law Journal, Matrimonial, Probate 
 and Admiralty. 
 
 L. J. (M. & W.). Morgan and William's Law 
 Journal, London. 
 
 L. J. N. S. The Law Journal, New Series, London 
 (1831 onwards). 
 
 L. J. N. C. or L. J. Notes Cases. Law Journal, 
 Notes of Cases. 
 
 L. J. O. S. The Law Journal, Old Series, London 
 (1822-1831). 
 
 L. J. P. or L. J. P. C. Law Journal, New Series, 
 Privy Council ;— Law Journal, Probate, Divorce and 
 Admiralty. 
 
 L. J. P. D. & A. Law Journal Reports, New Series, 
 English Probate, Divorce, and Admiralty. 
 
 L. j: P. & M. or L. J. Prob. or L. J. Prob. & Mat. 
 Law Journal, New Series, Probate and Matrimonial 
 (1831 onward). 
 
 L. J. Q. B. Law Journal Reports, New Series, 
 English Queen's Bench (1831 on). 
 L. J. Rep. Law Journal Reports. 
 L. J. Rep. N. S. Law Journal Reports, New Series 
 (1831 onward). 
 L.J.(Sm.). Smith's Law Journal, London. 
 L. J. V. C. Law Journal, Upper Canada. 
 LL. Laws. 
 
 L. L. Law Latin. Local Law ;— Law Library. 
 Philadelphia (reprint of English treatises). 
 L. L. N. S. Law Library, New Series. 
 L. Eat. Law Latin. 
 
 L. M. & P. Lowndes, Maxwell, and Pollock's Re- 
 ports, English Bail Court. 
 L. Mag. Law Magazine, London. 
 L. Mag. & L. R. or L. Mag. & R. Law Magazine and 
 Law Review, London. 
 L. N. Liber Niger, or the Black Book. 
 L. O. Legal Observer, London. 
 L. P. B. Lawrence's Paper Book. See A. P. B. 
 L. P. C. Lord of the Privy Council. 
 L. P. R. Lilly's Practical Register. 
 L. R. Law Reports (English) ;— Law Reporter 
 (Law Times Reports, New Series) Law Review ;— 
 (Irish) Law Recorder, Reports in all the Irish 
 Courts ;— Louisiana Reports. 
 L. R. A. Lawyers' Reports Annotated. 
 L. R. A. & E. English Law Reports, Admiralty 
 and Ecclesiastical (1866-1875).
 
 ABBREVIATION 
 
 53 
 
 ABBREVIATION 
 
 L. R. App. or L. R. App. Cas. English Law Reports, 
 Appeal Cases, House of Lords. 
 
 L. R. Burnt. Law Reports, British Burmah. 
 
 7.. A'. C. C. or L. R. C. C. It. English Law Reports, 
 Crown Cases Reserved (1866-1875). 
 
 L.R.C.P. English Law Reports, Common Pleas 
 (1866-1873). 
 
 L.R.C.P.D. Law Reports, Common Pleas Divi- 
 sion, English Supreme Court of Judicature. 
 
 /.. R. Ch. EngUsn Law Reports, Chancery Appeal 
 Cases (1S6G-1S75). 
 
 L. R. Ch. D. or L. R. Ch. Div. Law Reports. Chan- 
 cery Division, English Supreme Court of Judicature. 
 
 L. R. E. <f I. App. or L. R. E. & Ir. App. English 
 Reports, English and Irish Appeals. 
 
 L. R. Eq. English Law Reports, Equity (1866- 
 1875). 
 
 L. R. Ex. or L. R. Exch. English Law Reports, Ex- 
 chequer (1866-1871 
 
 L. R. Ex. D. or L. R. Ex. Div. Law Reports, Ex- 
 chequer Division, English Supreme Court of Judica- 
 ture. 
 
 L. R. H. L. Law Reports, English and Irish Ap- 
 peal Cases, House of Lords. 
 
 L. R. II. L. Sc. English Law Reports, House of 
 Lords, Scotch and Divorce Appeal Cases (1866-1875). 
 
 L. R. Ind. App. English Law Reports, Indian Ap- 
 peals. 
 
 L. R. Ir. Law Reports, Ireland (1879-1893). 
 
 L. R. Misc. D. Law Reports, Miscellaneous Divi- 
 sion. 
 
 L. R. N. S. Irish Law Recorder, New Series. 
 
 L. R. N. S. W. Law Reports, New South Wales. 
 
 L. R. P. C. English Law Reports, Privy Council, 
 Appeal Cases (1S66-1875). 
 
 L. R. Q. B. Law Reports, Queen's Bench (1866- 
 1875). 
 
 L. R. Q. B. Div. Law Reports, Queen's Bench Divi- 
 sion. 
 
 L. R. P. Div. or L. R. P. & D. Law Reports, Pro- 
 bate, Divorce, and Admiralty Division, English Su- 
 preme Court. 
 
 L. R. P. d- I.I. Law Reports, Probate and Matri- 
 monial (1866-1875). 
 
 L. R. S. A. Law Reports, South Australia. 
 
 L. R. Sc. Div. App. Cas. or L. R. Sc. & D. Eng- 
 lish Law Reports, Scotch and Divorce Cases, before 
 the House of Lords. 
 
 L. R. Sess. Cas. English Law Reports, Session 
 Cases. 
 
 L. R. Stat. English Law Reports, Statutes. 
 
 L. Rep. (Mont.). Law Reporter (Montreal). 
 
 L. Repos. Law Repository. 
 
 L. Rev. & Quart. J. Law Review and Quarterly 
 Journal. 
 
 L. liipar. Law of the Riparians. 
 
 L. S. Locus sigilli, place of the seal. 
 
 L. Salic. Salic Law. 
 
 L. Btu. Mag. N. S. Law Student's Magazine, New 
 Series. 
 
 L. T. The Law Times, Scranton, Pa. ;— The Law 
 Times, London. 
 
 L. T. B. American Law Times Bankruptcy Re- 
 ports. 
 
 L. T. J. Law Times Journal. 
 
 L. T. N. S. or L. T. R. N. S. or L. T. Rep. N. S. 
 Law Times (New Series) Reports, London ;— Amer- 
 ican Law Times Reports. 
 
 L. T. 0. S. Law Times, Old Series. 
 
 L. T. R. Law Times Reports, in all the Courts. 
 
 L. V. Rep. Lehigh Valley Reporter, Pennsylvania. 
 
 h. & B. Bull. Law and Bank Bulletin. 
 
 L. & B. Ins. Dig. Littleton and Blatchley's Insur- 
 ance Digest. 
 
 L. & C. or L. & C. C. C. Leigh & Cave's English 
 Crown Cases, Reserved. 
 
 L. £ E. English Law and Equity Reports, Boston 
 Edition. 
 
 L. £ E. Rep. Law and Equity Reporter, New 
 York. 
 
 L. £ G. t. Plunk. Lloyd and Goold's Cases tempore 
 Plunkett, Irish Chancery. 
 
 L. £ O. t. Sug. Lloyd and Goold temp. Sugden, 
 Irish Chancery. 
 
 L. £ M. Lowndes & Maxwell's English Practice 
 Cases, Bail Court, 
 
 L. £ T. LongHeld and Townsend's Reports, Irish 
 Exchequer. 
 
 L. £ W. or L. £ Wclsb. Lloyd and Welsby's Mer- 
 cantile Cases, English Com 
 
 La. Lane's Reports, English Exchequer ;— Louisi- 
 ana ;— Louisiana Reports ;— Lane's English L 
 uer Reports. 
 
 La. An. Louisiana Annual Reports ;— Lawyers' Re- 
 ports, Annotated. 
 
 La. Ann. Louisiana Annual Reports. 
 
 La Laure des Ser. Trait6 des Servitudes r 
 par M. La Laure. 
 
 La. L. J. or La. L. J. (Schm.). Louisiana Law 
 Journal (Schmidt's), New Orleans. 
 
 La. T. R. Martin's Louisiana Term Reports, vols. 
 2-12. 
 
 La The~m. L. C. La Themis (Periodical) Lower 
 Canada. 
 
 Lab. Labatt's Reports, U. S. District Ct, Califor- 
 nia. 
 
 Lac. Dig. Ry. Dec. or Lacey Dig. Lacey's Digest of 
 Railway Decisions. 
 
 Lack. Leg. R. Lackawanna Legal Record, Scran- 
 ton, Pa. 
 
 Ladd. Ladd's Reports, vols. 59-64 New Hampshire. 
 
 Lai. R. P. Lalor on Real Property. 
 
 Lalor. Lalor's Supplement to Hill and Denlo's 
 Reports, New York. 
 
 Lalor, Pol. Econ. Lalor, Cyclopaedia of Political 
 Science, Political Economy, etc. 
 
 Lamar. Lamar's Reports, vols. 25-42 Florida. 
 
 Lamb. Lamb's Reports, Wisconsin. 
 
 Lamb. Arch, or Lamb. Archai. Lambard's Archai- 
 onomia. 
 
 Lamb. Const. Lambard, Duties of Constables, etc. 
 
 Lamb. Eir. or Lamb. Eiren. Lambard's Eirenarcha. 
 
 Lane. B. The Lancaster Bar, Pennsylvania. 
 
 Lane. L. Rev. Lancaster Law Review. 
 
 Land Com. Rep. Land Commissioners Reports, 
 Ireland. 
 
 Land. Est. C. Landed Estates Court 
 
 Lane. Lane's Reports, English Exchequer. 
 
 Lang. Eq. PI. Langdell's Summary of Equity 
 Pleading. 
 
 Lang. Lead. Cas. Langdell's Leading Cases on 
 Contracts. 
 
 Lang. L. C. Sales. Langdell's Leading Cases on 
 Sales. 
 
 Langd. Cont. Langdell's Leading Cases on Con- 
 tracts ;— Langdell's Summary of the Law of Con- 
 tracts. 
 
 Lans. Lansing's Reports, New York Supreme 
 Court Reports, vols. 1-7. 
 
 Lans. Ch. or Lans. Sel. Cas. Lansing's Select 
 Chancery Cases, New York. 
 
 Lapcr. Dec. Laperrlere's Speaker's Decisions, 
 Canada. 
 
 Las Partidas. Las Sicte Partidas. 
 
 Lat. or Latch. Latch's Reports, English King's 
 Bench. 
 
 Lath. Lathrop's Reports, vols. 115-145 Massachu- 
 setts. 
 
 Lauder. (Lauder of) Fountainhall's Scotch Ses- 
 sion Cases. 
 
 Laur. H. C. Ca. Lauren's High Court Cases (Kim- 
 berly). 
 
 Laur. Prim. Laurence on the Law and Custom 
 of Primogeniture. 
 
 Lauss. Eq. Laussat's Equity in Pennsylvania. 
 
 Law Bui. Law Bulletin, San Francisco. 
 
 Law Chron. Law Chronicle, London ; — Law Chron- 
 icle, Edinburgh. 
 
 Law. Con. Lawson on Contracts. 
 
 Law Ex. J. Law Examination Journal, London. 
 
 Law Fr. <£ Lat. Diet. Law French and Latin Dic- 
 tionary. 
 
 Law Int. Law Intelligencer. 
 
 Law J. Ch. Law Journal, New Series, Chancery. 
 
 Law J. I. B. Law Journal, New Series, English 
 Queen's Bench. 
 
 Law J. P. D. Law Journal, Probate Division. 
 
 Law J. R.,Q. B. Law Journal Reports, English 
 Queen's Bench.
 
 ABBREVIATION 
 
 54 
 
 ABBREVIATION 
 
 Law Jour. Law Journal. See L. J. 
 
 LaioJour. (M. & W.). Morgan and Williams's Law 
 Journal, London. 
 
 Law Jour. (Smith's). J. P. Smith's Law Journal, 
 London. 
 
 LawJur. Law's Jurisdiction of the Federal 
 Courts. 
 
 Law Lib. Law Library, Philadelphia (reprint of 
 English treatises). , 
 
 LawLib.N.S. Law Library, New Series, Phila- 
 delphia. 
 
 Law Mag. Law Magazine, London. 
 
 Law Neius. Law News, St. Louis, Mo. 
 
 Law Pat. Dig. Law's Digest of Patent, Copyright 
 and Trade-mark Cases. 
 
 Law. PI. Lawes's Treatise on Pleading in As- 
 sumpsit. 
 
 Law Pr. Law's Practice in the Courts of the 
 U. S. 
 
 Law Quart. Rev. Law Quarterly Review, London. 
 
 Law Rec. Law Recorder, Reports in all the Irish 
 Courts. 
 
 Law Rep. Law Reporter, Boston; — Law Reports. 
 See L. R. 
 
 Law Rep. A. d E. Law Reports, Admiralty and 
 Ecclesiastical. 
 
 Law Rep. App. Cas. Law Reports, Appeal Cases. 
 
 Law Rep. C. C. Law Reports, Crown Cases. 
 
 Law Rep. C. P. or Law Rep. C. P. D. Law Reports, 
 Common Pleas Division. 
 
 Law Rep. Ch. Law Reports, Chancery Appeal 
 Cases. 
 
 Law Rep. Ch. D. Law Reports, Chancery Division. 
 
 Law Rep. Eq. Law Reports, Equity Cases. 
 
 Law Rep. Ex. or Law Rep. Ex. D. Law Reports, Ex- 
 chequer Division. 
 
 Law Rep. H. L. Law Reports, Hpuse of Lords, 
 English and Irish Appeal Cases. 
 
 Law Rep. H. L. Sc. Law Reports, Scotch and Di- 
 vorce Appeal Cases, House of Lords. 
 
 Law Rep. Ind. App. Law Reports, Indian Appeals. 
 
 Law Rep. Ir. Law Reports, Irish. 
 
 Law Rep. Misc. D. Law Reports, Miscellaneous Di- 
 vision. 
 
 Law Rep. N. S. Monthly Law Reporter, Boston. 
 
 Law Rep. P. C. Law Reports, Privy Council, Ap- 
 peal Cases. 
 
 Law Rep. P. & D. Law Reports, Probate and Di- 
 vorce Cases. 
 
 Law Rep. Q. B. or Law Rep. Q. B. D. Law Reports, 
 Queen's Bench Division. 
 
 Law Repos. Carolina Law Repository, North Car- 
 olina. 
 
 Law Rep. (Tor.). Law Reporter, Toronto. 
 
 Law Repos. Carolina Law Repository, North Car- 
 olina. 
 
 Law Rev. Law Review, London. 
 
 Law Rev. Qu. Law Review Quarterly, Albany, 
 N. Y. 
 
 Law Rev. & Qu. J. Law Review and Quarterly 
 Journal, London. 
 
 Law Stu. Mag. Law Students' Magazine, London. 
 
 Law Times or Law Times N. S. or Law Times Rep. 
 N. S. Law Times Reports, New Series, English 
 Courts, with Irish and Scotch Cases. 
 
 Law Times (Scranton). Law Times, Scranton, Pa. 
 
 Law Weekly. Law Weekly, New York. 
 
 Law £■ Mag. Mag. Lawyers' and Magistrates' Mag- 
 azine, London. 
 
 Lawes C. Lawes on Charter Parties. 
 
 Laioes PI. Lawes on Pleading. 
 
 Lawr. or Lawrence. Lawrence's Reports, vol. 20 
 Ohio. 
 
 Lawrence Comp. Dec. Lawrence's First Comptrol- 
 ler's Decisions. 
 
 Laws. Cas. Crim. L. Lawson's Leading Cases in 
 Criminal Law. 
 
 Laws. Cas. Eq. Lawson's Leading Cases in Equity 
 and Constitutional Law. 
 
 Laws. Lead. Cas. Simp. Lawson's Leading Cases 
 Simplified. 
 
 Lawson Cont. Lawson on Contracts. 
 Lawson, Usages & Cust. Lawson on the Law of 
 Usages and Customs. 
 
 Lawy. Mag. Lawyers' Magazine. 
 
 Lay. Lay's Reports, English Chancery. 
 
 Ld. Ken. Lord Kenyon's English King's Bench 
 Reports. 
 
 Ld. Raym. Lord Raymond's English King's 
 Bench Reports. 
 
 Le Mar. Le Marchant's Gardner Peerage Case. 
 
 Lea or Lea B. J. Lea's Tennessee Reports ; — 
 Leach. 
 
 Leach or Leach C. C. Leach's Crown Cases, Eng- 
 lish Courts. 
 
 Leach C. L. Leach, Cases In Crown Law. 
 
 Leach Cas. or Leach CI. Cas. Leach's Club Cases, 
 London. 
 
 Lead. Cas. Am. American Leading Cases, by Hare 
 & Wallace. 
 
 Lead. Cas. Eq. White and Tutor's Leading Cases 
 in Equity. 
 
 Leake. Leake on Contracts ; — Leake's Digest of 
 the Law of Property in Land. 
 
 Leake, Cont. or Leake Contr. Leake on Contracts. 
 
 Lee. El. Dr. Civ. Rom. or Lee. Elm. Legons E16- 
 mentaries du Droit Civil Romain. 
 
 Le Droit C. Can. Le Droit Civil Canadian, Mon- 
 treal. 
 
 Lee. Lee's English Ecclesiastical Reports; — 
 Lee's Reports, vols. 9-12 California. 
 
 Lee Abs. Lee on Abstracts of Title. 
 
 Lee (Cal.). Lee's Reports, -California. 
 
 Lee Cas. Ecc. Lee's Cases, English Ecclesiastical 
 Courts. 
 
 Lee Cas. t. H. or Lee & E. Lee's Cases tempore 
 Hardwicke, English King's Bench. 
 
 Lee, Diet, or Lee Pr. Lee's Dictionary of Practice. 
 
 Lee G. Sir George Lee's English Ecclesiastical 
 Reports. 
 
 Leese. Leese's Reports, vol. 26 Nebraska. 
 
 Lef. Dec. Lefevre's Parliamentary Decisions, re- 
 ported by Bourke. 
 
 Lefroy. Lefroy's English Railroad and Canal 
 Cases. 
 
 Leg. Leges. 
 
 Leg. Adv. Legal Adviser, Chicago, 111. 
 
 Leg. Alfred. Leges Alfred! (laws of King Alfred.) 
 
 Leg. Bibl. Legal Bibliography, by J. G. Marvin. 
 
 Leg. Burg. Leges Burgorum, Scotland. 
 
 Leg. Canut. Leges Canuti (laws of King Canute 
 or Knut.) 
 
 Leg. Chron. or Leg. Chron. Rep. Legal Chronicle 
 Reports, Pottsville, Pennsylvania. 
 
 Leg. Edm. Leges Edmundi (laws of King Ed- 
 mund.) 
 
 Leg. Ethel. Leges Ethelredi. 
 
 Leg. Exam. Legal Examiner, London. 
 
 Leg. Exam. N. S. Legal Examiner, New Series, 
 London. 
 
 Leg. Exam. & L. C. Legal Examiner and Law 
 Chronicle, London. 
 
 Leg. Exam. & Med. J. Legal Examiner and Med- 
 ical Jurist, London. 
 
 Leg. Exam. W. R. Legal Examiner, Weekly Re- 
 porter, London. 
 
 Leg. Exch. Legal Exchange, Des Moines, Iowa. 
 
 Leg. G. Legal Guide, London. 
 
 Leg. Gaz. or Leg. Gaz. R. or Leg. Gaz. Rep. (Pa.). 
 •Legal Gazette Reports, Pennsylvania. 
 
 Leg. H. 1. Laws of [King] Henry the First. 
 
 Leg. Inq. Legal Inquirer, London. 
 
 Leg. Int. Legal Intelligencer, Philadelphia. 
 
 Leg. News. Legal News, Montreal. 
 
 Leg. Obs. Legal Observer, London. 
 
 Leg. Oler. The Laws of Oleron. 
 
 Leg. Op. Legal Opinions, Harrisburg, Penna. 
 
 Leg. Out. Legge on Outlawry. 
 
 Leg. Rec. Rep. Legal Record Reports. 
 
 Leg. Rem. Legal Remembrancer, Calcutta High 
 Court. 
 
 Leg. Rep. Legal Reporter, Nashville, Tenn. 
 
 Leg. Rep. (Ir.). Legal Reporter, Irish Courts. 
 
 Leg. Rev. Legal Review, London. 
 
 Leg. Rhod. Laws of Rhodes. 
 
 Leg. T. Cas. Legal Tender Cases. 
 
 Leg. Ult. The Last Law. 
 
 Leg. Wisb. Laws of Wisbuy. 
 
 Leg. Y. B. Legal Year Book, London. 
 
 Leg. & Ins Rept. Legal and Insurance Reporter, 
 Philadelphia.
 
 ABBREVIATION 
 
 55 
 
 ABBREVIATION 
 
 Legg. Leggett's Reports, Sind, India. 
 
 Legge. Legge's Supreme Court Cases. New South 
 Wales. 
 
 Lcgul. The Leguleian, London. 
 
 Lehigh Val. L. Rep. Lehigh Valley Law Reporter. 
 
 Leigh. Leigh's Reports, Virginia. 
 
 Leigh N. P. Leigh's Nisi Prius Law. 
 
 Leigh & C. Leigh and Cave's Crown Cases, Eng- 
 lish Courts. 
 
 Leigh d D. Conv. Leigh and Dalzell on Conversion 
 of Property. 
 
 Leith R. P. St. Leith's Real Property Statutes, 
 Ontario. 
 
 LeMar. Le Marchant's Gardner Peerage Case. 
 
 Leo. or Lvon. Leonard's Reports, English King's 
 Bench. 
 
 Lest. P. L. or Lest. P. L. C. Lester's Decisions in 
 Public Land Cases. U. S. 1860-70. 
 
 Lester. Lester's Reports, vols. 31-33 Georgia. 
 
 Lester Supp. or Lest. & But. or Lester & B. Lester & 
 Butler's Supplement to Lester's 33d Georgia Reports. 
 
 Lev. Levinz's Reports, English King's Bench. 
 
 Lew. Lewln's English Crown Cases Reserved ; — 
 Lewis, Missouri ; — Lewis's Reports, Nevada. 
 
 Lew. C. C. Lewln's Crown Cases, English Courts. 
 
 Lew. C. L. or Lew. Cr. Law. Lewis's Criminal Law 
 of the U. S. 
 
 Lew L. Cas. or Lew. L. Cas. on L. L. Lewis's Lead- 
 ing Cases on Public Land Law. 
 
 Lew. L. T. in Phila. Lewis on Land Titles in Phil- 
 adelphia. 
 
 Lew. Perp. Lewis on the Law of Perpetuities. 
 
 Lew. Pr. Lewis's Principles of Conveyancing. 
 
 Lew. Stocks. Lewis on Stocks, Bonds, etc. 
 
 Lew. Tr. Lewin on Trusts. 
 
 Lewis. Lewis's Reports, vols. 29-35 Missouri Ap- 
 peals ;— Lewis's Reports, vol. 1 Nevada ;— Lewis's 
 Kentucky Law Reporter. 
 
 Lewis, Perp. Lewis on the Law of Perpetuity. 
 
 Lex Cust. Lex Custumaria. 
 
 Lex. Jurid. Calvinus, Lexicon Juridicum Juris 
 Casari simul et Canonici, etc. 
 
 Lex Man. Lex Maneriorum. 
 
 Lex Mer. or Lex Mer. Bed. Lex Mercatoria, by 
 Beawcs. 
 
 Lex Mer. Am. Lex Mercatoria Americana. 
 
 Lex Pari. Lex Parliamentaria. 
 
 Lex Salic. Lex Salica. 
 
 Ley. Ley's English King's Bench Reports ;— Ley's 
 Reports, English Court of Wards and other Courts. 
 
 Lib. Liber (book) ;— Library. 
 
 Lib. Ass. Liber Assisarum (Part 5 of the Year 
 Books). 
 
 Lib. Ent. Old Book of Entries. 
 
 Lib. Feud. Liber Feudorum; Consuetudines Feu- 
 dorum, at end of Corpus Juris Civ ilia. 
 
 Lib. Intr. Liber Intrationum : Old Book of En- 
 tries. 
 
 Lib.L.&Eq. Library of Law and Equity. 
 
 Lib. Niger. Liber Niger, or the Black Book. 
 
 Lib. PI. Liber Placitandi, Book of Pleading. 
 
 Lib. Reg. Register Books. 
 
 Lib. Rub. Liber Ruber, the Red Book. 
 
 Lib. Ten. Liber Tcncmentum. 
 
 Lieb. Civ. Lib. Lieber on Civil Liberty and Self- 
 Government. 
 
 Lieb. llvrm. Lieber's Hermeneutics. 
 
 Lieber Civ. Lib. Lieber on Civil Liberty and Self- 
 Government. 
 
 Life <C Ace. Ins. or Life & Ace. Ins. R. Life and Ac- 
 cident Insurance Reports (Bigelow's). 
 Li;;. Dig. Llgon's Digest (Alabama). 
 Lil. Lilly's Reports or Entries, English Court of 
 Assize. 
 Lil. Abr. Lilly's Abridgment. 
 Lil. Reg. Lilly's Practical Register. 
 Lind.Jur. Lindley's Jurisprudence. 
 Lind. Part, or Lindl. Partn. Llndley on Partner- 
 ship. 
 Linn Ind. Linn's Index of Pennsylvania Reports. 
 Linn, Laws Prov. Pa. Linn on the Laws of the 
 Province of Pennsylvania. 
 
 Lit. or Litt. Littell's Kentucky Reports ;— Little- 
 ton's English Common Pleas and Exchequer Reports. 
 Lit. Sel. Ca. Littell's Select Kentucky Cases. 
 
 Lit. 8. Littleton, section. 
 Lit. Ten. Littleton's T< ;:ures. 
 
 Lit. <£ LSI. Dig. Littleton & Blatchley'a Insurance 
 Digest. 
 
 Litt. (Ky.). Littell's Reports, Kentucky. 
 
 Litt. Hel. Cas. Littell's Select Cases, Kentucky. 
 
 Litt. Ten. Littleton 
 
 Litt. d B. Littleton and Blatchley'a Digest of In- 
 surance Deci 
 
 Littril. Litt< 11 s Kentucky Reports. 
 
 Littleton. Littleton's English Common Pleas and 
 Exchequer Reports. 
 
 Liv. Livre, Book. 
 
 Liv. Cas. Livingston's Cases In Error, New York. 
 
 Liv. Jud. Op. Livingston's Judicial Opinions, New 
 York. 
 
 Liv. L. Mag. Livingston's Law Magazine, New 
 York. 
 
 Liv. L. R eg. Livingston's Law Register, New York. 
 
 Livcrm. Ag. Livermore on Principal and Agent. 
 
 Li/verm. Diss. Livermore's Dissertation on the 
 Contrariety of Laws. 
 
 Liz. 8c. Exch. Lizars's Scotch Exchequer Cases. 
 
 LI. Leges, Laws. 
 
 LI. & G. t. P. Lloyd & Goold's Irish Cbanccry Re- 
 ports tempore Plunkett. 
 
 LI. & G. t. S. Lloyd & Goold's Irish Chancery Re- 
 ports tempore Sugden. 
 
 LI. & W. or Lloyd 6 W. Lloyd & Welsby's English 
 Mercantile Cases. 
 
 Llo. Ch. St. Lloyd's Chitty's Statutes. 
 
 Llo. T. M. Lloyd on Trademarks. 
 
 Llo. & G. t. P. Lloyd and Goold's Reports, tem- 
 pore Plunkett, Irish Chancery. 
 
 Llo. & G. t. S. Lloyd and Goold's Reports, tem- 
 pore Sugden, Irish Chancery. 
 
 Llo. & Vf., Lloyd 6 \V., or Llo. <t W. Mer. Cas. 
 Lloyd and Welsby's Mercantile Cases, English 
 King's Bench. 
 
 Loc. cit. Loco citato. In the place cited. 
 
 Loc. Ct. Gaz. Local Courts and Municipal Gazette, 
 Toronto, Out. 
 
 Locc. de Jur. Mar. Loccenius, de Jure Maritimo 
 et Navali. 
 
 Lock. Rev. Ca. or Lock. Rev. Cas. Lockwood's Re- 
 versed Cases, New York. 
 
 Locus Standi. Locus Standi Reports, English. 
 
 Lofft. Lofft's Reports, English King's Bench. 
 
 Lofit, Append. Lotft's Maxims, appended to Lofft's 
 Reports. 
 
 Log. Comp. Logan's Compendium of English. 
 Scotch, and Ancient Roman Law. 
 
 Lois des llatim. Lois des Batiments. 
 
 Lorn. C. H. Rep. Lomas's City Hall Reporter, New 
 York. 
 
 Lorn. Dig. Lomax's Digest of the Law of Real 
 Property in the U. S. 
 
 Lond. London Encyclopedia. 
 
 Lond. Jur. London Jurist, Reports in all the 
 Courts. 
 
 Lond. Jur. N. S. London Jurist, New Series. 
 
 Lond. L. Mag. London Law Magazine. 
 
 Long Q. or Long Quint. Long Quinto (Year Books, 
 Part X). 
 
 Longf. d T. or Long. & Town. LongHeld & Town- 
 send's Irish Exch' <iuer Hep »rta 
 
 Lor. Inst. Lorimer'a Institutes. 
 
 Lor. A Buss. Loring & Russell, Election Cases. 
 Massachusetts. 
 
 Lords Jour. Journal of the House of Lords. 
 
 Lorenz (Ceylon). Lorenz's I 
 
 Loring <& Russell. Loring & Ru 
 setts Election Cases. 
 
 Lou. or Louis. Louisiana (see La.). 
 
 Louis. Code. Civil Code of Lou: 
 
 Love. Wills. Lovelass cm .. 
 
 or Low. Dis. Lowell's Decisions, U. S. Dist. 
 of Massachu 
 
 Low. Con. or Low. Can. R. Lower Canada B 
 
 Low. Can. Jur. Lower Canada Jurist, Montreal. 
 
 Loto. Can. L. J. Lower Canada Law Journal. 
 
 Low. Can. Repts. Lower Canada Reports. 
 
 Low. C. Scign. or Low. Can. Seign. Lower Canada 
 Seignorial Reports.
 
 ABBREVIATION 
 
 56 
 
 ABBREVIATION 
 
 Lowell. Lowell's United States District Court Re- 
 ports. 
 Lown. Av. Lowndes on Average. 
 Lown. Col. Lowndes on Collisions at Sea. 
 Lown. Leg. Lowndes on Legacies. 
 Lown. M. d P. Lowndes, Maxwell and Pollock's 
 Bail Court Reports, English. 
 
 Lown. d M. Lowndes and Maxwell's Bail Court 
 Reports, English. 
 Lube Eq. Lube on Equity Pleading. 
 Luc. or Lucas. Lucas's Reports, Part X Modern 
 Reports. 
 Lud. El. Cas. Luder's Election Cases, English. 
 Ludd. or Ludden. Ludden's Reports, vols. 43, 44 
 Maine. 
 
 Lum. Cas. or Lum. P. L. Cas. Lumley's Poor Law 
 Cases. 
 Lum. Pari. Pr. Lumley's Parliamentary Practice. 
 Lum. Set. Lumley on Settlements and Removal. 
 Lumpkin. Lumpkin's Reports, vols. 59-77 Georgia. 
 Lush, or Lush. Adm. Lushington's Admiralty Re- 
 ports, English. 
 Lush. P. L. Lushington on Prize Law. 
 Lush Pr. Lush's Common Law Practice. 
 Lut. Lutwyche's Reports, English Common Pleas. 
 Lut. Elec. Cas. Lutwyche's Election Cases, Eng- 
 lish. 
 Lut. Ent. Lutwyche's Entries. 
 
 Lut. R. C. Lutwyche's English Registration Ap- 
 peal Cases. 
 
 Lutw. E. Lutwyche's English Common Pleas Re- 
 ports. 
 Luz. L. J. Luzerne Law Journal. 
 Luz. L. T. Luzerne Law Times. 
 Luz. Leg. Ob. Luzerne Legal Observer, Carbon- 
 dale, Pa. 
 
 Luz. Leg. Keg. Luzerne Legal Register, Wilkes- 
 barre, Pa. 
 Lynd. Prov. Lyndwood's Provinciales. 
 Lyne. Lyne's Reports, Irish Chancery. 
 M. Massachusetts; — Maryland; — Maine; — 
 Michigan; — Minnesota; — Mississippi; — Mis- 
 souri ;— Montana ;— Queen Mary; thus 1 M. signifies 
 the first year of the reign of Queen Mary;— Michael- 
 mas Term. Mortgage ;— Morison's Dictionary of De- 
 cisions, Scotch Court of Session;— Session Cases, 
 3d Series, Scotland (Macpherson) ;— See Mc. 
 M. A. Missouri Appeals. 
 M. Cas. Magistrates' Cases. 
 
 M. G. C. Moody's English Crown Cases, Reserved. 
 M. D. & D. or M . D. d De G. Montague, Deacon and 
 DeGex's Reports, English Bankruptcy. 
 
 M. G. & 8. Manning, Granger and Scott's Re- 
 ports, English Common Pleas, Common Bench Re- 
 ports, vols. 1-8. 
 M . L. Mercian Law. 
 
 M. L. J. Memphis Law Journal, Tennessee. 
 M. L. R. Maryland Law Record, Baltimore. 
 M . M. R. Mitchell's Maritime Register, London. 
 M. P. C. Moore's Privy Council Cases, English. 
 M. R. Master of the Rolls. 
 M. St. More's Notes on Stair's Institutes. 
 M. T. Michaelmas Term. 
 
 M. d A. or M. d Ayr. Montagu & Ayrton's English 
 Bankruptcy Reports. 
 
 M. & B. Montagu and Bligh's Reports, English 
 Bankruptcy. 
 
 M. d C. Mylne & Craig's English Chancery Re- 
 ports;— Montagu & Chitty's English Bankruptcy 
 Reports. 
 
 M. d C. Bankr. or M . d CM. Bankr. Montagu and 
 Chitty's Bankruptcy Reports, English. 
 
 M. d G. Manning & Granger's English Common 
 Pleas Reports;— Maddock & Geldart's English Chan- 
 cery Reports, vol. 6 Maddock's Reports. 
 
 M. d Gel. Maddock & Geldart's English Chancery 
 Reports, vol. 6 Maddock's Reports. 
 
 M. d Gord. Macnaghten & Gordon's English Chan- 
 cery Reports. 
 
 M. & H. Murphy and Hurlstone's Exchequer Re- 
 ports. 
 
 M. d K. Mylne and Keen's Reports, English Chan- 
 cery. 
 
 M. d M. Moody and Malkin's Reports, English 
 Nisi Prius. 
 
 M. d McA. Montague and McArthur's Reports, 
 English Bankruptcy. 
 
 M. d P. Moore and Payne's Reports, English 
 Common Pleas and Exchequer. 
 
 M. d R. Manning & Ryland's English King's 
 Bench Reports ;— Moody & Robinson's English Nisi 
 Prius Reports ;— Maclean & Robinson's Scotch Ap- 
 peal Cases. 
 
 M. d R. M. C. Manning and Ryland's Magistrate 
 Cases, English King's Bench. 
 
 M. d Rob. Moody and Robinson's Nisi Prius Cas» 
 es, English Courts. 
 
 M. d S. Maule & Selwyn's English King's Bench ■ 
 Reports;— Moore & Scott's English Common Pleas 
 Reports;— Manning & Scott's Reports, vol. 9 Com- 
 mon Bench. ' 
 
 M. d Scott. Moore and Scott's Reports, English 
 Common Pleas. 
 
 M. & W. Meeson and Welsby's Reports, English 
 Exchequer. 
 M. & Y. Martin and Terger's Reports, Tennessee. . 
 Mac. Macnaghten's English Chancery Reports. 
 MacAr. MacArthur's District of Columbia Re- 
 ports;— MacArthur's Patent Cases. 
 MacAr. Pat. Cas. MacArthur's Patent Cases. 
 MacAr. & M. or MacAr. & Mackey. MacArthur and 
 Mackey, Reports of District of Columbia Supreme 
 Court. 
 
 MacArth. or MacArthur. MacArthur's District of 
 Columbia Reports ;— MacArthur's Patent Cases. 
 
 MacArth. Pat. Cas. MacArthur, Patent Cases, Dis- 
 trict of Columbia. 
 Mac. N. Z. Macassey's New Zealand Reports. 
 Mac. Pat. Cas. Macrory's Patent Cases. 
 Mac. & G. Macnaghten & Gordon's English Chan- 
 cery Reports. 
 
 Mac. & Rob. Maclean & Robinson's Scotch Appeal 
 Cases. 
 Macas. Macassey's Reports, New Zealand. 
 Mace. Cas. Maccola's Breach of Promise Cases. 
 Maccl. Macclesfield's Reports, 10 Modern Reports. 
 Maccl. Tr. Macclesfield's Trial (Impeachment), 
 London, 1725. 
 Maccles. Macclesfield's Reports (10 Modern). 
 Macd. Jam. Macdougall's Jamaica Reports. 
 Macf. or Macfar. Macfarlane's Reports, Jury 
 Courts, Scotland. 
 
 Macf. Pr. Macfarlane's Practice of the Court of 
 Session. 
 Mack. C. L. Mackeldey on Civil Law. 
 Mack. Cr. L. Mackenzie on the Criminal Law of 
 Scotland. 
 
 Mack. Inst. Mackenzie's Institutes of the Law of 
 Scotland. 
 
 Mack. Obs. Mackenzie's Observations on Acts of 
 Parliament. 
 
 Mack. Rom. L. Mackenzie's Studies in Roman 
 Law. 
 
 Mackeld. Mackeldey on Modern Civil Law ;— 
 Mackeldey on Roman Law. 
 
 Mackeld. Civil Law. Mackeldey on Modern Civil 
 Law. 
 Mackeld. Rom. Law. Mackeldey on Roman Law. 
 Mackey. Mackey's Supreme Court Reports, Dis- 
 trict of Columbia. 
 
 Macl. McLean's United States Circuit Court Re- 
 ports ;— Maclaurin's Scotch Criminal Decisions. 
 Macl. Dec. Maclaurin's Decisions, Scotch Courts. 
 Macl. Sh. Maclachlan on Merchant Shipping. 
 Macl. d R. Maclean and Robinson's Scotch Ap- 
 peals. 
 
 Macn. Macnaghten's Select Cases in Chancery 
 tempore King;— W. H. Macnaghten's Reports, India. 
 Macn. C. M. Macnaghten on Courts Martial. 
 Macn. F. or Macn. (Fr.). Sir Francis Macnagh- 
 ten's Bengal Reports. 
 
 Macn. N. A. Beng. Macnaghten's Nizamut Adaw- 
 lut Reports, Bengal. 
 
 Macn. Nul. Macnamara on Nullities and Irregu- 
 larities in the Practice of the Law. 
 
 Macn. S. D. A. Beng. (W. H.) Macnaghten's Sudder 
 Dewanny Adawlut Reports, Bengal. 
 
 Macn. d G. Macnaghten and Gordon's Reports, 
 English Chancery. 
 Macomb C. M. Macomb on Courts Martial.
 
 ABBREVIATION 
 
 57 
 
 ABBREVIATION 
 
 Macph. Macpherson, Lee & Bell's (Third Scries) 
 Scotch Court of Session Cases. 
 
 Macph. Inf. Macpherson on Infancy. 
 
 Macph. Jud. Com. Macpherson, Practice of the 
 Judicial Committee of the Privy Council. 
 
 Macph. Priv. Coun. Macpherson's Privy Council 
 Practice. 
 
 Macq. Macqueen's Scotch Appeal Cases (House 
 of Lords). 
 
 Macq. Deb. Macqueen's Debates on Life Peerage 
 Question. 
 
 Macq. II. L. Cas. Macqueen's Scotch Appeal Cases 
 of Lords). 
 ;. II. d W. Macqueen on Husband and Wife. 
 
 Macq. M. d D. Macqueen on Marriage and Di- 
 vorce. 
 
 Macr. P. Cas. Macrory's Patent Cases. 
 
 Macr. d H. Macrae and Hertslet's Insolvency 
 Cases. 
 
 MacSwin. Mines. MacSwinney, Law of Mines, 
 Quarries, and Minerals. 
 
 Mad. Maddock's English Chancery Reports;— Ma- 
 dras; — Maddox's Reports, vols. 9-19 Montana. 
 
 Mad. Exch. Madox's History of the Exchequer. 
 
 Mad. Form. Madox's Formulare Anglic-arum. 
 
 Mad. H. C. or Mad. H. Ct. Rep. Madras High Court 
 Reports. 
 
 Mad. Jur. Madras Jurist, India. 
 
 Mad. Papers. Madison's (James) Papers. 
 
 Mad. S. D. A. R. or Mad. S. D. R. Madras Sudder 
 Dewanny Adawlut Reports. 
 
 Mad. Scl. or Mad. Sel. Dec. Madras Select Decrees. 
 
 Mad. Ser. Madras . Series (East) India Law Re- 
 ports. 
 
 Mad. d B. Maddox & Bach's Reports, vol. 19 Mon- 
 tana. 
 
 Mad. d Gel. Maddock & Geldart's English Chan- 
 cery Reports, vol. 6 Maddock's Reports. 
 
 Madd. Maddock's English Chancery Reports;— 
 Maddox's Reports, vols. 9-18 Montana. 
 
 Madd. Ch. Pr. Maddock's Chancery Practice. 
 
 Madd. d G. Maddock and Geldart's Reports, Eng- 
 lish Chancery (vol. 6, Maddock's Reports). 
 
 Mag. The Magistrate, London. 
 
 May. Cas. Magistrates's Cases, especially the se- 
 ries edited by Bittleston, Wise, & Paraell. 
 
 Mag. Char. Magna Carta or Charta. See Bar- 
 rington/s Revised Statutes of England, 1870, vol. 1, 
 p. 84, and Coke's Second Institute, vol. 1, first 78 
 pages. 
 
 Mag. Dig. Magrath's South Carolina Digest 
 
 Mag. Ins. Magen on Insurance. 
 
 Mag. (Md.J. Magruder's Reports, Maryland, vols. 
 1-2. 
 
 Mag. Rot. Magus Rotulus (the Great Roll of the 
 Exchequer). 
 
 Mag. d M. d P. L. Magistrate and Municipal and 
 Parochial Lawyer. 
 
 Magr. or Magruder. Magruder's Reports, vols. 1, 
 2 Maryland. 
 
 Maine. Maine Reports. 
 
 Maine Anc. L. or Maine Anc. Law. Maine on An- 
 cient Law. 
 
 Maine, Popular Govt. Maine, Popular Government. 
 
 Maine Vil. Com. Maine on Village Communities. 
 
 Maitland. Maitland's Manuscript Scotch Session 
 Cases. 
 
 Mai. Malyne's Lex Mercatorla. 
 
 Mall. Ent. Mallory's Modern Entries. 
 
 Malloy. Ma Hoy's Irish Chancery Reports. 
 
 Malone. Editor, vols. 6, 9, and 10, Heiskell's Ten- 
 nessee Reports. 
 
 Man. Manning's Reports (English Court of Revi- 
 sion) ;— Manitoba ;— Manning's Reports, vol. 1 Mich- 
 igan ;— Manuscript ;— Manson's English Bankruptcy 
 Cases. 
 
 Man. Cas. Manumission Cases In New Jersey, by 
 Bloomfleld. 
 
 Man. El. Cas. Manning's English Election Cases 
 (Court of Revision). 
 
 Man. Exch. Pr. Manning's Exchequer Practice. 
 
 Man. Gr. d S. Manning, Granger and Scott's Re- 
 ports, English Common Pleas. 
 
 Man. Int. Law. Manning, Commentaries on the 
 Law of Nations. 
 
 Man. L. R. Manitoba Law Reports. 
 
 Man. d Q. Manning and Grang s , Eng- 
 
 lish Common Pleas. 
 
 Man. d R. or Man. d Ry. Manning and Ryland's 
 Reports, English King's Bench. 
 
 Man. i. , ' • • 
 
 ning and Ryland's Magistrate Cases, English King* 
 Bench. 
 
 Man. d S. Manning & Scott 
 mon Bench. 
 
 Manb. Coke. Manby's Abridgment of Col; 
 ports. 
 
 Manitoba. Armour's Queen's Bench and County 
 Court Reports tempore Wood, Manitoba;— Ma 
 Law R> ; 
 
 Manl. Pines. Manley on Fines. 
 
 Mann. Manning's Reports, Michigan Reports, 
 vol. 1. 
 
 Mann. Com. Manning's Commentaries on the Law 
 of Nations. 
 
 Manning. Manning's Unreported Cases ;— Louisi- 
 ana ;— Manning's Reports, vol. 1 Michigan. 
 
 Manning, La. Unreported Cases, Louisiana. 
 
 Mans. Mansfield's Reports, vols. 49-52 Arkansas ; 
 — Manson, English Bankruptcy Cases. 
 
 Manaon. Manson's English Bankruptcy Cases. 
 
 ^anum. Cas. or Manum. Cases. Manumission Cas- 
 es, New Jersey (Bloomfleld's). 
 
 Manic, or Manw. For. Laws. Manwood's Forest 
 Laws. 
 
 Mar. March's English King's Bench Reports ;— 
 Marshall's United States Circuit Court Reports ;— 
 Marshall's Kentucky Reports ; — Martin's Louisiana 
 Reports ;— Martin's North Carolina Reports ;— Mar- 
 shall's Reports, Bengal ;— Maryland ;— Maritime. 
 
 Mar. Br. March's Translation of Brook's New 
 Cases. 
 
 Mar. L. C. or Mar. L. Cas. or Mar. L. Rep. Maritime 
 Law Cases (Crockford's), English. 
 ' Mar. L. C. N. S. or Mar. L. Cas. N. S. or Mar. L. 
 Rep. N. S. Maritime Law Reports, New Series (As- 
 pinall's), English. 
 
 Mar. La. Martin's Louisiana Reports. 
 
 Mar. N. C. Martin's North Carolina Reports. 
 
 Mar. N. S. Martin's Louisiana Reports, New Se- 
 ries. 
 
 Mar. R. English Maritime Law Reports. 
 
 Mar. Rec. B. Martin's Recital Book. 
 
 Mar. Reg. Mitchell's Maritime Register. London. 
 
 March. March's Translation of Brooke's New 
 Cases, King's Bench. 
 
 March N. C. March's New Cases, English King's 
 Bench. 
 
 Marine Ct. R. Marine Court Reporter (McAdam's), 
 New York. 
 
 Mark. El. Markley's Elements of Law. 
 
 Marks d Sayre. Marks & Sayre's Reports, vol. 108 
 Alabama. 
 
 Marr. Marriott's English Admiralty Decisions ;— 
 Marrack's European Assurance Cases. 
 
 Marr. Adm. Marriott's Reports, English Admir- 
 alty. 
 
 Mars. Marsderr's English Admiralty Reports. 
 
 Marsh. Marshall's United States Circuit Court 
 Decisions ;— Marshall's English Common Picas Re- 
 ports ; — Marshall's Bengal Reports ;— Marshall, Ken- 
 tucky ;— Marshall's Reports, vol. 4 Utah. 
 
 Marsh. (A. K.). A. K. Marshall's Kentucky Re- 
 ports. 
 
 Marsh. Beng. Marshall's Reports, Bengal. 
 
 Marsh. C. P. Marshall's English Common Pleas 
 Reports. 
 
 Marsh. Cole. Marshall's Reports, Calcutta. 
 
 Marsh. Ceylon. Marshall's Ceylon Reports. 
 
 Marsh. Dec. Marshall's United States Circuit 
 Court Decisions (Brockenbrough) ;— Marshall on the 
 Federal Constitution. 
 
 Marsh. Ins. Marshall on Insurance. 
 
 Marsh. J. J. J. J. Marshall's Reports. Kentucky. 
 
 Marsh. (Ky.) or Marsh. A. K. A. K. Marshall's Re- 
 ports, Kentucky. 
 
 Marsh. Op. Marshall's (Chief Justice) Constitu- 
 tional Opinions. 
 
 Mart, or Mart. (La.). Martin's Reports, Louisi- 
 ana ;— (see Martin).
 
 ABBREVIATION 
 
 58 
 
 ABBREVIATION 
 
 Mart. Cond. La. Martin's Condensed Louisiana 
 Reports. 
 
 Mart. Dec. United States Decisions in Martin's 
 North Carolina Reports. 
 
 Mart. (Ga.). Martin's Reports, Georgia. 
 
 Mart. (lnd.). Martin's Reports, Indiana. 
 
 Mart. (La.). Martin's Louisiana Reports. 
 
 Mart. Law Nat. Martin's Law of Nations. 
 
 Mart. (N. C). Martin's Reports, North Carolina. 
 
 Mart. N. S. or Mart. (La.) N. S. Martin's Re- 
 ports, New Series, Louisiana. 
 
 Mart. 0. S. (La.). Martin's Louisiana Reports, Old 
 Series. 
 
 Mart. U. S. C. C. Martin's United States Circuit 
 Court Reports. 
 
 Mart. & Y. or Mart. & Yeag. Martin and Teager's 
 Reports, Tennessee. 
 
 Marth. W. Ca. Martha Washington Case, see Unit- 
 States v. Cole, 5 McLean, 513, Fed. Cas. No. 14,832. 
 
 Martin: Martin's Louisiana Reports ; — Martin's 
 North Carolina Reports ;— Martin's Reports, vols. 
 21-30 Georgia ;— Martin's Reports, vols. 54-70 Indi- 
 ana. 
 
 Martin Index. Martin's Index to Virginia Reports. 
 
 Marv. Marvel's Reports, Delaware. 
 
 Marv. Av. Marvin on General Average. 
 
 Marv. Leg. Bibl. Marvin's Legal Bibliography. 
 
 Marv. Salv. or Marv. Wr. & S. Marvin on Wreck 
 and Salvage. 
 
 Maryland. Maryland Reports. 
 
 Mas. or Mason (U. S.). Mason's United States Cir- 
 cuit Court Reports. 
 
 Mass. Massachusetts ;— Massachusetts Reports. 
 
 Mass. Dr. Com. Masse's Le Droit Commercial. 
 
 Mass. Elec. Ca. Massachusetts Election Cases. 
 
 Mass. L. R. Massachusetts Law Reporter, Boston. 
 
 Massey v. Headford. An Irish Criminal Conversa- 
 tion Case, 1804. Originally printed in Ireland and 
 reprinted both in New York and Philadelphia. 
 
 Mast. Master's Reports, vols. 25-28 Canada Su- 
 preme Court. 
 
 Mat. Mathews. 
 
 Mat. Par. or Paris. Matthew Paris, Historla Mi- 
 nor. 
 
 Math. Ev. Matthews on Presumptive Evidence. 
 
 Mathews. Mathews's Reports, vols. 6-9 West Vir- 
 ginia. 
 
 Mats, or Matson. Matson's Reports, vols. 22-24 
 Connecticut. 
 
 Matth. (W. Ta.). Matthews's Reports, West Vir- 
 ginia Reports, vol. 6. 
 
 Matth. Com. Matthews's Guide to Commissions In 
 Chancery. 
 
 Matth. Dig. Matthews's Digest. 
 
 Matthews. Matthews's Reports, vol. 75 Virginia. 
 
 Mau. & Pol. Sh. Maude and Pollock's Law of Ship- 
 ping. 
 
 Man. & Set. Maule & Selwyn's Reports, English 
 King's Bench. 
 
 Maude & P. Mer. Shipp. Maude & Pollock's Law of 
 Merchant Shipping. 
 
 Maude & P. Shipp. Maude & Pollock's Law of Mer- 
 chant Shipping. 
 
 Maug. Lit. Pr. Maughan on Literary Property. 
 
 Maul. & Sel. or Maule & S. Maule & Selwyn's Eng- 
 lish King's Bench Reports. 
 
 Maur. Dec. Mauritius Decisions. 
 
 Max. Maxims. 
 
 Max. Dig. Maxwell's Nebraska Digest. 
 
 Maxu). Int. Sta. or Maxw. Interp. St. Maxwell on 
 the Interpretation of Statutes. 
 
 May Const. Hist. May's Constitutional History of 
 England. 
 May Crim. L. May's Criminal Law. 
 May Fr. Conv. May on Fraudulent Conveyances. 
 May Hist. May's Constitutional History of Eng- 
 land. 
 May Ins. May on Insurance. 
 May. Merg. Mayhew on Merger. 
 May P. L. or May, Pari. Law. May's Parliamentary 
 Law. 
 May, Pari. Pr. May's Parliamentary Practice. 
 Maymo Inst. Maymo's Romani et Hispani Juris 
 Institutiones. 
 
 Mayn. Maynard's Reports, Edward II. (Year 
 Books, Part I). 
 
 Mayne Dam. Mayne on Damages. 
 
 Mayo Just. Mayo's Justice. 
 
 Mayo & Moul. Mayo and Moulton's Pension Laws. 
 
 McAl. or McAll. McAllister's United States Circuit 
 Court Reports. 
 
 McArth. McArthur's Reports, Dist. of Columbia. 
 
 McArth. C. M. McArthur on Courts Martial. 
 
 McBride. McBride's Reports, vol. 1 Missouri. 
 
 McCah. or McCahon. McCahon's Reports, Supreme 
 Court of Kansas and U. S. Courts, Dist of Kansas. 
 
 McCall Pr. McCall's Precedents. 
 
 McCar. or McCart. McCarter's New Jersey Equity 
 Reports, vols. 14, 19 ;— McCarty's New York Civil 
 Procedure Reports. 
 
 McCl. McClelland's English Exchequer Reports. 
 
 McCl. & Y. McClelland & Younge's English Ex- 
 chequer Reports. 
 
 McClain Cas. Car. McClaln's Cases on Carriers. 
 
 McClel. McClelland's Reports, English Exchequer. 
 
 McClel. Pro. Pr. McClellan's Probate Practice. 
 
 McClel. d Y. McClelland and Younge's Reports, 
 English Exchequer. 
 
 McCook. McCook's Reports, vol. 1 Ohio State. 
 
 McCord. McCord's Law Reports, South Carolina. 
 
 McCord Ch. or McCord Eq. McCord's Equity Re- 
 ports, South Carolina. 
 
 McCork. or McCorkle. McCorkle's Reports, North 
 Carolina, vol. 65. 
 
 McCr. McCrary's United States Circuit Court Re- 
 ports. 
 
 McCr. Elect. McCrary's American Law of Elec- 
 tions. 
 
 McCrary. McCrary, United States Circuit Court 
 Reports. 
 
 McCul. Diet. McCullough's Commercial Diction- 
 ary- 
 
 McCul. Pol. Econ. McCulloch, Political Economy. 
 
 McCull. Diet. McCullough's Commercial Diction- 
 ary. 
 
 McDevitt. McDevitt's Land Commissioner's Re- 
 ports, Ireland. 
 
 McDon. Inst. McDonall's Institutes of the Law of 
 Scotland. 
 
 McFar. McFarlane's Reports (Scotch Jury Court). 
 
 McGill or McGill Sc. Sess. McGill's Manuscript 
 Decisions Scotch Court of Session. • 
 
 McCl. or McGloin. McGloin's Louisiana Reports. 
 
 McKinn. Jus. McKinney's Justice. 
 
 McKinn. Phil. Ev. McKinnon's Philosophy of Ev- 
 idence. 
 
 McL. or McLean. McLean's United States Circuit 
 Court Reports. 
 
 McL. & R. McLean & Robinson's Scotch Appeal 
 Cases. 
 
 McM. Com. Dec. McMaster's Commercial Deci- 
 sions. 
 
 McMas. R. L. McMaster's Railroad Law, New 
 York. 
 
 McMul. or McMull. McMullan's South Carolina 
 Law Reports. 
 
 McMul. Eq. or McMull. Ch. or McMull. Eq. Mc- 
 Mullan's South Carolina Equity Reports. 
 
 McNagh. McNaghten (see Macn.). 
 
 McNagh. Elem. McNaghten's Elements of Hindoo 
 Law. 
 
 McPherson. McPherson, Lee, & Bell's (Third Se- 
 ries) Scotch Session Cases. 
 
 McWillie. McWillle's Reports, vols. 73-76 Missis- 
 sippi. 
 
 Md. Maryland ;— Maryland Reports ;— Harris & 
 McHenry's Maryland Reports. 
 
 Md. Ch. Maryland Chancery Decisions, by John- 
 son. 
 
 Md. L. Rec. Maryland Law Record, Baltimore. 
 
 Md. L. Rep. Maryland Law Reporter, Baltimore. 
 
 Md. L. Rev. Maryland Law Review. 
 
 Me. Maine;— Maine Reports. 
 
 Means. Means's Kansas Reports. 
 
 Mechem. Ag. Mechem on Agency. 
 
 Mech. Cas. Ag. Mechem's Cases on Agency. 
 
 Med. Jur. Medical Jurisprudence. 
 
 Med. L. J. or Med. Leg. J. Medico Legal Journal, 
 New York.
 
 ABBREVIATION 
 
 59 
 
 ABBREVIATION 
 
 
 Med. L. N. Medico Legal News, New York. 
 
 Med. L. P. Medico Legal Papers, New York. 
 
 Mcdd. Meddaugh's Reports, vol. 13 Michigan. 
 
 Mees. & Ros. Meeson & Roscoe's English Excheq- 
 uer Reports. 
 
 Mees. d W. or Mees. & Wels. Meeson & Welsby'8 
 English Exchequer Reports. 
 
 Meg. Megone's Company Case. 
 
 Meigs. Meigs's Tennessee. 
 
 Melv. Tr. Melville's Trial (Impeachment), Lon- 
 don. 
 
 Mem. in Scacc. Memorandum or memoranda In the 
 Exchequer. 
 
 Mem. L. J. Memphis Law Journal, Tennessee. 
 
 Menken. Menken's Reports, vol. 30 New York 
 Civil Procedure Reports. 
 
 Mens. Menzies's Reports, Cape of Good Hope. 
 
 Mer. Merlvale's Reports, English Chancery. 
 
 Merc. Cas. Mercantile Cases. 
 
 Merch. Diet. Merchant's Dictionary. 
 
 Meriv. Merlvale's English Chancery Reports. 
 
 Merl. Quest. Merlin, Questions de Droit. 
 
 Merl. Repert. Merlin's Repertoire de Jurispru- 
 dence. 
 
 Met. or Mete. Metcalf's Massachusetts Reports;— 
 Metcalfe's Kentucky Reports;— Metcalf's Reports, 
 vol. 3 Rhode Island. 
 
 Mete. Contr. Metcalf on Contracts. 
 
 Mete. (Ky.). Metcalfe's Reports, Kentucky. 
 
 Mete. (Mass.). Metcalf's Reports, Massachusetts 
 Reports, vols. 42-54. 
 
 MeCh. Ch. Ca. or Meth. Ch. Cas. Report of Metho- 
 dist Church Case. 
 
 Mich. Michigan ;— Michigan Reports ;— Michaelmas. 
 
 Mich. C. C. R. or Mich. Cir. Ct. Rep. Michigan Cir- 
 cuit Court Reporter, Marquette. 
 
 Mich. L. Michigan Lawyer, Detroit, Mich. 
 
 Mich. L.J. Michigan Law Journal, Detroit, Mich. 
 
 Mich. Lawyer. Michigan Lawyer, Detroit, Mich. 
 
 Mich. Leg. News. Michigan Legal News. 
 
 Mich. N. P. Michigan Nisi Prius Cases (Brown's). 
 
 Mich. Pol. Soc. Michigan Political Science Asso- 
 ciation. 
 
 Mich. Rev. St. Michigan Revised Statutes. 
 
 Mich. T. Michaelmas Term. 
 
 Mich. Vac. Michaelmas Vacation. 
 
 Middx. Sit. Middlesex Sittings at Nisi Prius. 
 
 Mil. Miles's Pennsylvania Reports ;— Miller (see 
 Mill.). 
 
 Miles. Miles's District Court Reports, City and 
 County of Philadelphia, Pennsylvania. 
 
 Mill. Mill's South Carolina Constitutional Re- 
 ports;— Miller's Reports, vols. 1-5 Louisiana; — Mil- 
 ler's Reports, vols. 3-18 Maryland;— Miller's Deci- 
 sions, United States. 
 
 Mill. Civ. L. Miller's Civil Law. 
 
 Mill, Const. (S. C). Mill's South Carolina Con- 
 stitutional Reports. 
 
 Mill. Dec. or Mill. Dec. (V. S.). Miller's Decisions 
 (Woolworth's Reports) United States Circuit Court ; 
 —Miller's Decisions United States Supreme Court 
 Reports, Condensed (Continuation of Curties). 
 
 Mill. Ins. Miller's Elements of the Law of Insur- 
 ances. 
 
 Mill. La. Miller's Reports, vols. 1-5 Louisiana. 
 
 Mill, Log. Mill's Logic. 
 
 Mill. Md. Miller's Reports, vols. 3-18 Maryland. 
 
 Mill. Op. Miller's Decisions, U. S. Circuit Court 
 (Woolworth's Reports). 
 
 Mill. Part. Miller on Partition. 
 
 Mill, Pol. Ec. Mill's Political Economy. 
 
 Mill. & C. Bills. Miller and Collier on Bills of 
 Sale. 
 
 Miller. Miller's Reports, vols. 1-5 Louisiana; — 
 Miller's Reports, vols. 3-18 Maryland. 
 
 Mills Em. D. Mills on Eminent Domain. 
 
 Milw. or Milw. Eccl. Mihvard's Reports, Irish Pre- 
 rogative, Ecclesiastical. 
 
 Min. Minor; — Minor's Alabama Reports. 
 
 if in. Dig. Mlnot's Digest, Massachusetts. 
 
 Min. Ev. Minutes of Evidence. 
 
 Min. Inst. Minor's Institutes Statute Law. 
 
 Minn. Minnesota; — Minnesota Reports. 
 
 Minn. Ct. Rep. Minnesota Court Reporter. 
 
 Minn. Law J. Minnesota Law Journal, St. Paul, 
 Minn, 
 
 Minor. Minor's Alabama Reports;— Minor's In- 
 stitutes. 
 
 'etc. Mlnshew (John), "The Guide i: i the 
 Tongues also the Exposition of the Terms of the 
 Laws of this Land." (England.* 
 
 Mir. Jus. Home's Mirror of Justices. 
 
 Mir. Purl. Mirror of Parliament, London. 
 
 Mir. Pat. Off. Mirror of the Patent Office, Wash- 
 ington, D. C. 
 
 li.D.&S. Mirchall's Doctor and Student 
 
 Mirr. Home's Mirror of Justices. 
 
 Misc. R. or Miscel. Miscellaneous Reports, New 
 York. 
 
 Miss. Mississippi ; — Mississippi Reports ; — Mis- 
 souri. 
 
 Miss. Dec. Mississippi Decisions, Jackson. 
 
 St. Ca. or Miss. St. Cas. ; i State 
 
 Cases. 
 
 Mister. Mister's Reports, vols. 17-32 Missouri 
 Appeals. 
 
 Mitch. M.B. Mitchell's Maritime Register, Lon- 
 don. 
 
 Mitf. Eq. PI. Mitford on Equity Pleading. 
 
 Mitf. &Ty. Eq. PI. Mitford and Tyler's Practice 
 and Pleading in Eijuity. 
 
 M'Mul. Ch. (S. C). M'Mullan's South Carolina 
 Equity Reports. 
 
 M'Mul. L. (S. C). M'Mullan's South Carolina Law 
 Reports. 
 
 Mo. Missouri ;— Missouri Reports;— Moore's Eng- 
 lish King's Bench Reports;— Moore's English Com- 
 mon Pleas Reports ;— Moore's English Privy Council 
 Reports ;— Modern Reports, English /—English King's 
 Bench, etc., (see Mod.) ;— Monthly ;— Moore's Indian 
 Appeal Cases ;— J. B. Moore's Reports, English Com- 
 mon Pleas. 
 
 Mo. App. Missouri Appeal Reports. 
 
 Mo. App. Rep. Missouri Appellate Reporter. 
 
 Mo. Bar. Missouri Bar, Jefferson City. 
 
 Mo. (P.). Sir Francis Moore's English King's 
 Bench Reports. 
 
 Mo. I. A. Moore's Indian Appeals. 
 
 Mo. (J. B.). J. B. Moore's English Common Pleas 
 Reports. 
 
 Mo. Jur. Monthly Jurist, Bloomlngton, 111. 
 
 Mo. Law Mag. Monthly Law Magazine, London. 
 
 Mo. Law Rep. Monthly Law Reporter, Boston. 
 
 Mo. Leg. Exam. Monthly Legal Examiner, New 
 York. 
 
 Mo.P.C. Moore's English Privy Council Reports. 
 
 Mo. W. J. Monthly Western Jurist, Bloomington. 
 111. 
 
 Mo. & P. Moore & Payne's English Common Pleas 
 Reports. 
 
 Mo. Jc R. Moody & Robinson's English Nisi Prius 
 Reports. 
 
 Mo. & S. Moore & Scott's English Common Pleas 
 Reports. 
 
 Moak& Eng. Rep. Moak's English Reports. 
 
 Mob. or Mobl. Mobley, Contested Election Cases, 
 U. S. House of Representatives, 18S2-9. 
 
 Mod. Modern Reports, English King's Bench, etc.; 
 —Modified. 
 
 Mod. Cas. L. & Eq. Modern Cases in Law and 
 Equity (8 and 9 Modern Reports). 
 
 Mod. Cas. Modern Cas> s (6 Modern Reports). 
 
 Mod. Cas. per Far. or t. llolt. Modern Cases tem- 
 pore Holt, by Farresley, vol. 7 Modern Reports. 
 
 Mod. Ent. Modern Entries. 
 
 Mod. Int. Modus Intrandi. 
 
 Mod. Rep. The Modern Reports, English King's 
 Bench, etc. ; — Modern Reports by Style (Style's 
 King's Bench Reports). 
 
 Mol. or Moll. Molloy's Irish Chancery Reports. 
 
 Moly. Molyneaux's Reports, English Courts, temp. 
 Car. I. 
 
 Mol. de J. M. or Mol. de Jure Mar. Molloy de Jure 
 Marltlmo et Navall. 
 
 Mon. Montana ;— T. B. Monroe's Kentucky Re- 
 ports ; — Ben Monroe's Kentucky Reports ;— Mona- 
 ghan's Unreported Cases Supreme Court of Penn- 
 sylvania. 
 
 Afon. Angl. Monasticon Angllcanum. 
 
 Mon. B. Ben Monroe's Reports, Kentucky. 
 
 Mon. (T.B.J. T. B. Monroe's Kentucky Reports.
 
 ABBREVIATION 
 
 60 
 
 ABBREVIATION 
 
 Monagh. or Monaghan. Monaghan's Unreported 
 Cases, S. C. of Pennsylvania ;— Monaghan's Reports, 
 vols. 147-165 Pennsylvania. 
 
 Monr. Monroe (see Mon.) ;— T. B. Monroe's Re- 
 ports, Kentucky. 
 
 Mont. Montana ;— Montana Reports ;— Montagu's 
 English Bankruptcy Reports ;— Montriou's Bengal 
 Reports. 
 
 Mont. B. C. or Mont. Bank. Rep. Montagu's Re- 
 ports, English Bankruptcy. 
 Mont. Cas. Montriou's Cases In Hindoo Law. 
 Mont. Co. L. R. Montgomery County Law Report- 
 er, Pennsylvania. 
 
 Mont. Comp. Montagu on the Law of Composi- 
 tion. 
 Mont. Cond. Rep. Montreal Condensed Reports. 
 Mont. D. & De O. Montagu, Deacon and De Gex's 
 Reports, English Bankruptcy. 
 
 Mont. Dig. or Mont. Eq. PI. Montagu's Digest of 
 Pleadings in Equity. 
 
 Mont. Ind. Monthly Index to Reporters (Nation- 
 al Reporter System). 
 
 Mont. Inst. Montriou's Institutes of Jurispru- 
 dence. 
 
 Mont. L. R. Montreal Law Reports, Queen's 
 Bench ;— Montreal Law Reports, Superior Court. 
 
 Mont. L. R. Q. B. Montreal Law Reports, Queen's 
 Bench. 
 
 Mont. L. R. S. C. or Mont. L. Rep. Super. Ct. Mon- 
 treal Law Reports, Superior Court. 
 Mont. Set-Off. Montagu on Set-Off. 
 Mont. & A. or Mont & Ayr. Montagu and Ayrton's 
 Reports, English Bankruptcy. 
 
 Mont. & B. or Mont. & Bl. Montagu and Bligh's 
 Reports, English Bankruptcy. 
 
 Mont. & C. Montagu and Chitty's Reports, Eng- 
 lish Bankruptcy. 
 
 Mont. & MacA. Montagu & MacArthur's English 
 Bankruptcy Reports. 
 
 Montesq. or Montesq. Esprit des Lois. Montesquieu, 
 Esprit des Lois. 
 
 Montg. Co. L. Rep. or Montg. Co. Law Rep'r (Pa.). 
 Montgomery County Law Reporter. 
 
 Month. J. L. Monthly Journal of Law, Washing- 
 ton. 
 
 Montr. Montriou's Reports, Bengal ;— Montriou's 
 Supplement to Morton's Reports. 
 Montr. L. R. Montreal Law Reports. 
 Moo. Francis Moore's English King's Bench Re- 
 ports. When a volume is given, it refers to J. B. 
 Moore's Reports, English Common Pleas ;— J. M. 
 Moore's English Common Pleas Reports ;— Moody's 
 English Crown Cases. 
 
 Moo. A. Moore's Reports, English (1st Bosanquet 
 and Puller's Reports, after page 470). 
 
 Moo. C. C. or Moo. C. Cas. or Moo. Cr. C. Moody's 
 English Crown Cases Reserved. 
 
 Moo. C. P. J. B. Moore's Reports, English Com- 
 mon Pleas. 
 
 .Moo. I. App. or Moo. Ind. App. Moore's Reports, 
 English Privy Council, Indian Appeals. 
 
 Moo. J. B. J. B. Moore's Reports, English Com- 
 mon Pleas. 
 
 Moo. K. B. Moore's English King's Bench Re- 
 ports. 
 
 Moo. P. C. or Moo. P. C. Cas. Moore's Privy Council 
 Cases, Old and New Series. 
 
 Moo. P. C. Cas^ N. S. Moore's Privy Council Cases, 
 New Series, English, 
 ilfoo. Tr. Moore's Divorce Trials. 
 Moo. & M. or Moo. & Mai. Moody & Malkln's Eng- 
 lish Nisi Prius Reports. 
 
 ilfoo. & P. or Moo. & Pay. Moore and Payne's Re- 
 ports, English Common Pleas. 
 
 ilfoo. & R. or ilfoo. & Rob. Moody and Robinson's 
 Nisi Prius Cases, English Courts. 
 
 Jfoo. & Sc. Moore and Scott's Reports, English 
 Common Pleas. 
 
 Mood, or Moody. Moody's English Crown Cases, 
 Reserved. 
 
 Mood. & Malic. Moody & Malkln's English Nisi 
 Prius Reports. 
 
 Mood. & R. or ilfood. & Rob. Moody & Robinson's 
 English Nisi Prius Reports. 
 
 Moody, Cr. Cas. Moody's English Crown Cases. 
 Moody £ M. Moody & Mackin's English Nisi Prius 
 Reports. 
 
 Moon. Moon's Reports, vols. 133-144 Indiana and 
 vols. 6-14 Indiana Appeals. 
 
 Moore. Moore's English King's Bench Reports ;— 
 Moore's English Common Pleas Reports ;— Moore's 
 English Privy Council Reports ;— Moore's Reports, 
 vols. 28-34 Arkansas ;— Moore's Reports, vol. 67 Ala- 
 bama ;— Moore's Reports, vols. 22-24 Texas. 
 
 Moore (A.). A. Moore's Reports in 1 Bosanquet 
 & Puller, after page 470. 
 Moore (Ark. J. Moore's Reports, Arkansas. 
 Moore C. P. Moore's English Common Pleas Re- 
 ports. 
 Moore E. I. Moore's East Indian Appeals, 
 .flfoore G. C. Moore's Gorham Case (English Privy 
 Council). 
 
 Moore K. B. Sir F. Moore's English King's Bench 
 Reports. 
 
 Moore P. C. Moore's English Privy Council Re- 
 ports. 
 
 Moore P. C. N. S. Moore's English Privy Council 
 Reports, New Series. 
 
 Moore & P. Moore & Payne's English Common 
 Pleas Reports. 
 
 Moore & S. Moore & Scott's English Common 
 Pleas Reports. 
 
 Moore & W. or ilfoore & Walker. Moore and Walk- 
 er's Reports, Texas, vols. 22-24. 
 
 ilfor. Morison's Dictionary of Decisions in the 
 Court of Session, Scotland ;— Morris (see Morr.). 
 
 Mor. Die. or Mor. Diet. Dec. Morison's Dictionary 
 of Decisions, Scotch Court of Session, 
 ilfor. Dig. Morley's Digest of the Indian Reports. 
 Mor. la. Morris' Iowa Reports. 
 Mor. Min. Rep. Morrison's Mining Reports. 
 Mor. Priv. Corp. Morawetz on Private Corpora- 
 tions, 
 ilfor. St. Cas. Morris' Mississippi State Cases. 
 Mor. Supp. Supplement to Morison's Dictionary, 
 Scotch Court of Session. 
 
 Mor. Syn. Morison's Synopsis, Scotch Session 
 Cases. 
 
 ilfor. Tran. Morrison's Transcript of United States 
 Supreme Court Decisions. 
 
 More St. More's Notes on Stair's Institutes, Scot- 
 land. 
 
 Morg. Ch. A. & O. Morgan's Chancery Acts and 
 Orders. 
 
 M org. & W. L. J. Morgan and Williams's Law 
 Journal, London. 
 Mori. Dig. Morley's East Indian Digest, 
 ilforr. Morris's Iowa Reports (see, also, Morris 
 and Mor.) ;— Morrow's Reports, vols. 23-36 Oregon ;— 
 Morrell's English Bankruptcy Reports. 
 Morr. (Bomb.). Morris's Reports, Bombay. 
 Morr. (Cal.). Morris's Reports, California. 
 Morr. Jam. (Jamaica). Morris's Jamaica Reports, 
 ilforr. M. R. Morrison's Mining Reports, Chicago. 
 Morr. (Miss.). Morris's Reports, Mississippi, 
 ilforr. Repl. Morris on Replevin, 
 ilforr. St. Cas. Morris's State Cases, Mississippi. 
 Morr. Trans. Morrison's Transcript, United States 
 Supreme Court Decisions. 
 Morrell. Morrell's Bankruptcy Cases. 
 Morris. Morris's Iowa Reports ;— Morris's Re- 
 ports, vol. 5 California ;— Morris's Reports, vols. 43- 
 48 Mississippi ;— Morris's Jamaica Reports ;— Mor- 
 ris's Bombay Reports;— Morr issett's Reports, vols. 
 80, 98 Alabama. 
 
 Morris & Har. Morris and Harrington's Sudder 
 Dewanny Adawlut Reports, Bombay. 
 
 Morse Arb. & Aw. Morse on Arbitration and 
 Award, 
 ilforse Bk. Morse on Banks and Banking, 
 ilforse Exch. Rep. Morse's Exchequer Reports, 
 Canada, 
 ilforse Tr. Morse's Famous Trials, Boston. 
 Mort. or Morton. Morton's Reports, Bengal. 
 Mos. Mosley's Reports, English Chancery. 
 Mos. Man. Moses on Mandamus. 
 Moult. Ch. or Moult. Ch. P. (N. Y.). Moulton's New 
 York Chancery Practice.
 
 ABBREVIATION 
 
 61 
 
 ABBREVIATION 
 
 Moy. Ent. Moyle's Book of Entries. 
 
 Moz. & W. or Mozley & Whitcley. Mozley & White- 
 ley's Law Dictionary. 
 
 MS. Manuscript, Manuscript Reports. 
 
 Mu. Corp. Ca. Witurow's Corporation Cases, vol. 2. 
 
 Mulford, Nation. Mulford, The Nation. 
 
 Mutn. Jam. Mumford's Jamaica Reports. 
 
 Mum}. (Jamaica). Mumford's Jamaica Reports. 
 
 Mun. Municipal ;— Munford's Virginia Reports. 
 
 Mun}. Munford's Reports, Virginia. 
 
 Munic. & P. L. Municipal and Parish Law Cases, 
 English. 
 
 Mur. Murphey's North Carolina Reports; — Mur- 
 ray's Scotch Jury Court Reports ;— Murray's Ceylon 
 Reports ;— Murray's New South Wales Reports. 
 
 Mur. U. S. Ot. Murray's Proceedings in the United 
 States Courts. 
 
 Mur. & H. or Mur. & Hurl. Murphy and Hurl- 
 stone's Reports, English Exchequer. 
 
 Murph. Murphy's Reports, North Carolina. 
 
 Murr. Murray's Scotch Jury Trials ;— Murray's 
 Ceylon Reports ;— Murray's New South Wales Re- 
 ports. 
 
 Murr. Over. Cas. Murray's Overruled Cases. 
 
 Murray. Murray's Scotch Jury Court Reports. 
 
 Murray (Ceylon). Murray's Ceylon Reports. 
 
 my (New South Wales). Murray's New South 
 Wales Report?. 
 
 Mut. or Mutukisna (Ceylon). Mutukisna's Ceylon 
 Reports. 
 
 Myer Dig. Myer's Texas Digest. 
 
 Myer Fed. Dec. or Myers Fed. Dec. Myer's Fed- 
 eral Decisions. 
 
 Myl. & C. or Myl. & Cr. Mylne & Craig's English 
 Chancery Reports. 
 
 Myl. & K. or Mylne & K. Mylne & Keen's English 
 Chancery Reports. 
 
 Myr. or Myr. Prob. or Myrick (Cal.). Myrick's 
 California Probate Court Reports. 
 
 N. Nebraska ;— ^Nevada ;— "Northeastern Reporter 
 (properly cited N. E.); — Northwestern Reporter 
 (properly cited N. W.) ; — The Novels or New Con- 
 stitutions. 
 
 N. A. Non allocatur. 
 
 N. B. New Brunswick Reports ; — Nulla bona. 
 
 N. B. Eq. Ca. New Brunswick Equity Cases. 
 
 N. B. Eq. Rep. New Brunswick Equity Reports. 
 
 N. B. N. R. National Bankruptcy News and Re- 
 ports. 
 
 N. B. R. National Bankruptcy Register, New 
 York; — New Brunswick Reports. 
 
 N. B. Rep. New Brunswick Reports. 
 
 N. B. V. Ad. New Brunswick Vice Admiralty Re- 
 ports. 
 
 N. Benl. New Benloe's Reports, English King's 
 Bench, Edition of 1661. 
 
 N.C. North Carolina ;— North Carolina Reports; 
 — Notes of Cases (English, Ecclesiastical, and Mari- 
 time);— New Cases (Bingham's New Cases). 
 
 N. C. C. New Chancery Cases (Younge & Collyer). 
 
 N. C. Con}. North Carolina Conference Reports. 
 
 N. C. Ecc. Notes of Cases, English Ecclesiastical 
 and Maritime Courts. 
 
 N. C. L. Rep. North Carolina Law Repository. 
 
 N. C. Law Repos. North Carolina Law Reposi- 
 tory. 
 
 N. C. Str. Notes of Cases, by Strange, Madras. 
 
 N. C. T. Rep. or N. C. Term R. North Carolina 
 Term Reports. 
 
 N. Car. North Carolina ; — North Carolina Reports. 
 
 N. Chip, or N. Chip. (Vt.). N. Chlpman's Vermont 
 Reports. 
 
 N. D. North Dakota ;— North Dakota Reports. 
 
 N. E. New England;— New edition;— Northeastern 
 Reporter. 
 
 N. E. I. Non est Inventus. 
 
 N. E. R. Northeastern Reporter (commonly cited 
 N. E.) ; — New England Reporter. 
 
 N. E. Rep. Northeastern Reporter. 
 
 2V. Eng. Rep. New England Reporter. 
 
 N. F. Newfoundland; — Newfoundland Reports. 
 
 N. II. New Hampshire ;— New Hampshire Reports. 
 
 N. H. R. New Hampshire Reports. 
 
 N. Bt. £ C. English Railway and Canal Cases, by 
 Nicholl, Hare, Carrow, etc 
 
 N.J. New Jersey ; — New Jersey Reports. 
 
 N. J. Ch. or N. J. . Reports. 
 
 N. J. L. J. New Jersey Law Journal, . rrtlle 
 N. J. 
 
 W. J. Law. New Jersey Law Reports. 
 
 N. L. Nelson's Lutwyche, English Common Pleas 
 Reports. 
 
 N. L. L. New Library of Law and Equity, 
 lish;— New Library of Law, etc., Harrisbu:, 
 
 N. M. New Mexico; — New Mexico Reports. 
 
 N. M. St. Bar Ass'n. New Mexico State Bar As- 
 sociation. 
 
 N. Mag. Ca. New Magistrates' Cases. 
 
 N. Mcx. New Mexico Territorial Courts. 
 
 N. of Cas. Notes of Cases, English Ecclesiastical 
 and Maritime Courts ; — Notes of Cases at Madras 
 (by Strange). 
 
 N. of Cas. Madras. Notes of Cases at Madras (by 
 Strange). 
 
 N. P. Nisi Prlus. Notary Public. Nova Placlta. 
 New Practice. 
 
 N. P. C. Nisi Prlus Cases. 
 
 N. P. R. Nisi Prius Reports. 
 
 N.R. New Reports (English, 1862-18G5) ;— Bosan- 
 quet & Puller's New Reports;— Not Reported. 
 
 N. R. B. P. New Reports of Bosanquet & Puller. 
 
 N.S. New Series ;— Nova Scotia;— Nova Scotia 
 Reports. 
 
 N. S. Dec. Nova Scotia Decisions. 
 
 N. S. L. R. Nova Scotia Law Reports. 
 
 N. S. R. Nova Scotia Reports. 
 
 N. S. W. New South Wales Reports, Old and New- 
 Series. 
 
 N. S. W. Eq. Rep. New South Wales Equity Re- 
 ports. 
 
 N. S. W. L. R. New South Wales Law Reports. 
 
 N. Sc. Dec. Nova Scotia Decisions. 
 
 N. T. Repts. New Term Reports, Q. B. 
 
 N. W. Law Rev. Northwestern Law Review, Chi- 
 cago, 111. 
 
 N. W. P. North West Provinces Reports, India. 
 
 N. W. R. or N. W. Rep. or N. W. Rcptr. Northwest- 
 ern Reporter. 
 
 N. W. T. or N. W. T. Rep. Northwest Territories 
 Reports, Canada. 
 
 N. Y. New York;— New York Court of Appeals 
 Reports. 
 
 N. Y. Ann. Ca. New York Annotated Cases. 
 
 N. Y. App. Dec. New York Court of Appeals De- 
 cisions. 
 
 .V. Y. Cas. Err. New York Cases in Error (Calnes's 
 Cases). 
 
 N. Y. Ch. Sent. New York Chancery Sentinel. 
 
 N. Y. City H. Rec. New York City Hall Recorder. 
 
 N. Y. Civ. Pr. Rep. New York Civil Procedure Re- 
 ports. 
 
 N. Y. Code Report, or N. Y. Code Rept. New York 
 Code Reporter. 
 
 N. Y. Code Reports, N. S. or N. Y. Code Repts. X. 
 S. New York Code Reports, New Series. 
 
 N. Y. Cond. New York Condensed Reports. 
 
 N. Y. Cr. New York Criminal Reports. 
 
 N. Y. Cr. R. or N. Y. Cr. Rep. New York Criminal 
 Reports. 
 
 N. Y. Ct. App. New York Court of Appeals. 
 
 N. Y. Daily L. Gaz. New York Dally Law Gazette. 
 
 N. Y. El. Cas. or N. Y. Elec. Cos. New York Con- 
 tested Election Cases. 
 
 N. Y. Jud. Rep. New York Judicial Repository, 
 New York (Bacon's). 
 
 N. Y. Jur. New York Jurist 
 
 N. Y. L. J. New York Law Journal, New York 
 City. 
 
 N. Y. Law Qaz. New York Law Gazette, New 
 York City. 
 
 N. Y. Law Rev. New York Law Review, Ithaca, 
 N. Y. 
 
 N. Y. Leg. N. New York Legal News. 
 
 N. Y. Leg. Obs. New York Legal Observer, New 
 York City (Owen's). 
 
 N. Y. Leg. Reg. New York Legal Register, New 
 York City. 
 
 A'. Y.Miac. New York Miscellaneous Reports. 
 
 N.Y.Mo.L.R. New York Monthly Law Reports. 
 
 N. Y. Mo. Law Bull. New York Monthly Law Bul- 
 letin, New York City.
 
 ABBREVIATION 
 
 62 
 
 ABBREVIATION 
 
 N. Y. Mun. Gaz. New York Municipal Gazette, 
 New York City. 
 
 N. Y. Op. Att.-Gen. Sickels's Opinions of the At- 
 torney-General of New York. 
 
 if. Y. P. R. New York Practice Reports. 
 
 N. Y. Pr. Rep. New York Practice Reports. 
 
 N. Y. Rec. New York Record. 
 
 N. Y. Reg. New York Daily Register, New York 
 City. 
 
 N. Y. Rep. New York Court of Appeals Reports. 
 
 N. Y. Reptr. New York Reporter (Gardenier's). 
 
 N. Y. S. New York Supplement ;— New York State; 
 —New York State Reporter. 
 
 N. Y. Spec. Term R. Howard's Practice Reports. 
 
 N. Y. St. Rep. New York State Reporter, 1886-1896. 
 
 N. Y. Sup. New York Supreme Court Reports ;— 
 New York Supplement, St. Paul, Minnesota. 
 
 N. Y. Sup. Ct. or N. Y. Super. Ct. New York Supe- 
 rior Court Reports. 
 
 N. Y. Supp. New York Supplement. 
 
 N. Y. Supr. or N. Y. Supr. Ct. Repts. New York Su- 
 preme Court Reports. 
 
 N. Y. Supr. Ct. Repts. (T. & C). New York Su- 
 preme Court Reports, by Thompson and Cook. 
 
 N. Y. T. R. or N. Y. Term R. New York Term Re- 
 ports (Caines's Reports). 
 
 N. Y. Them. New York Themis, New York City. 
 
 N. Y. Trans. New York Transcript, New York 
 City. 
 
 N. Y. Trans. N. S. New York Transcript, New Se- 
 ries, New York City. 
 
 N. Y. Week. Dig. New York Weekly Digest, New 
 York City. 
 
 N. Z. New Zealand;— New Zealand Reports. 
 
 N. Z. App. Rep. New Zealand Appeal Reports. 
 
 N. Z. Col. L. J. New Zealand Colonial Law Jour- 
 nal. 
 
 N. Z. Jur. New Zealand Jurist, Dunedin, N. Z. 
 
 N. Z. Jur. N. S. New Zealand Jurist, New Series. 
 
 N. Z. Rep. New Zealand Reports, Court of Ap- 
 peals. 
 
 N. & H. Nott and Huntington's Reports, U. S. 
 Court of Claims Reports, vols. 1-7. 
 
 N. & Hop. Nott and Hopkins's Reports, U. S. 
 Court of Claims Reports, vols. 8-29. 
 
 N. & M. Neville and Manning's Reports, English 
 King's Bench. 
 
 N. d M. Mag. Nevlle & Manning's English Mag- 
 istrates' Cases. 
 
 N. & Me. or N. & McC. Nott & McCord's South Car- 
 olina Reports. 
 
 N. & P. Nevile & Perry's English King's Bench 
 Reports. 
 
 N. & P. Mag. Nevile & Perry's English Magis- 
 trates' Cases. 
 
 Nal. St. P. Nalton's Collection of State Papers. 
 
 Nam. Dr. Com. Namur's Cour de Droit Commer- 
 cial. 
 
 Nap. Napier. 
 
 Napt. or Napton. Napton's Reports, vol. 4 Mis- 
 souri. 
 
 Narr. Mod. Narrationes Moderns, or Style's 
 King's Bench Reports. 
 
 Nas. Inst. Nasmith's Institutes of English Law. 
 
 Nat. B. C. or Nat. Bk. Cos. National Bank Cases, 
 American. 
 
 Nat. B. R. or Nat. Bank. Reg. National Bankruptcy 
 Register Reports. 
 
 Nat. Brev. Natura Brevium. 
 
 Nat. Corp. Rep. National Corporation Reporter, 
 Chicago. 
 
 Nat. L. Rec. National Law Record. 
 
 Nat. L. Rep. National Law Reporter. 
 
 Nat. L. Rev. National Law Review, Philadelphia. 
 
 Nat. Reg. National Register, Edited by Mead, 1816. 
 
 Nat. Rept. Syst. National Reporter System. 
 
 Nat. Rev. National Review, London. 
 
 Nd. Newfoundland Reports. 
 
 Neal F. & F. Neal's Feasts and Fasts. 
 
 Neb. Nebraska ; — Nebraska Reports. 
 
 Neg. Cas. Bloomfleld's Manumission or Negro 
 Cases, New Jersey. 
 
 Nel. Nelson's English Chancery Reports. 
 
 Nell (Ceylon). Nell's Ceylon Reports. 
 
 Nels. Nelson's Reports, English Chancery. 
 
 Nets. Abr. Nelson's Abridgment of the Common 
 Law. 
 
 Nels. Fol. Rep. Reports temp. Finch, Edited by 
 Nelson. 
 
 Nels. Lex Maner. Nelson's Lex Maneriorum. 
 
 Nels. Rights Cler. Nelson's Rights of the Clergy. 
 
 Nem. con. Nemine contradicente. 
 
 Ncm. dis. Nemine dissentiente. 
 
 Nev. Nevada ; — Nevada Reports. 
 
 Nev. & M. or Nev. & Man. Nevile ft Manning's 
 English King's Bench Reports. 
 
 Nev. & M. M. Cas. Neville and Manning's Magis- 
 trate Cases, English. 
 
 Nev. &M.R.& C. Cas. Neville and McNamara's 
 Railway and Canal Cases. 
 
 Nev. & Mac. or Nev. & Macn. Neville & Macnam- 
 ara's English Railway and Canal Cases. 
 
 Nev. & Man. Mag. Cas. Nevile & Manning's Eng- 
 lish Magistrate's Cases. 
 
 Nev. & P. Nevile & Perry's English King's Bench 
 Reports. 
 
 Nev. & P. M. Cas. or Nev. & P. Mag. Cas. Neville 
 and Perry's Magistrate Cases, English. 
 
 New. Newell, Illinois Appeal Reports. 
 
 New Ann. Reg. New Annual Register, London. 
 
 New B. Eq. Ca. New Brunswick Equity Cases. 
 
 New B. Eq. Rep. New Brunswick Equity Reports, 
 vol. 1. 
 
 New Benl. New Benloe'e Reports, English King's 
 Bench, Edition of 1661. 
 
 New Br. New Brunswick Reports. 
 
 New Cas. New Cases (Bingham's New Cases). 
 
 New Cas. Eq. New Cases in Equity, vols. 8, 9 
 Modern Reports. 
 
 New Eng. Hist. New England Historical and 
 Genealogical Register. 
 
 New M. Cas. or New Mag. Cas. New Magistrate 
 Cases, English Courts (Bittleston, Wise & Parnell). 
 
 New Nat. Brev. New Natura Brevium. 
 
 New Pr. Cas. or New Pr. Cases. New Practice Cas- 
 es, English Courts. 
 
 New Rep. New Reports in all the Courts, London ; 
 — Bosanquet & Puller's New Reports, vols. 4, 5 Bo- 
 sanquet & Puller. 
 
 New Sess. Cas. Carrow, Hamerton and Allen's 
 Reports, English Courts. 
 
 New So. W. New South Wales. 
 
 New Term Rep. New Term Reports ;— Dowling ft 
 Ryland's King's Bench Reports. 
 
 New York. See N. Y. 
 
 New York Supp. New York Supplement. 
 
 Newb. or Newb. Adm. Newberry's United States 
 District Court, Admiralty Reports. 
 
 Newbyth. Newbyth's Manuscript Decisions, Scotch 
 Session Cases. 
 
 Newell. Newell's Reports, vols. 48-90 Illinois Ap- 
 peals. 
 
 Newf. Newfoundland Reports. 
 
 New}. Sel. Cas. Newfoundland Select Cases. 
 
 Newl. Contr. Newland on Contracts. 
 
 Newm. Conv. Newman on Conveyancing. 
 
 Nich. Adult. Bast. Nicholas on Adulterine Bas- 
 tardy. 
 
 Nich. H. & C. or Nicholl. Nicholl, Hare and Car- 
 row's English Railway and Canal Cases, vols. 1-2. 
 
 Nicholson. Nicholson's Manuscript Decisions, 
 Scotch Session Cases. 
 
 Niebh. Hist. Rom. Niebuhr, Roman History. 
 
 Nient Cul. Nient culpable, Not guilty. 
 
 Nil. Reg. or Niles Reg. Niles's Weekly Register, 
 Baltimore. 
 
 Nisbet. (Nlsbet of) Dlrleton's Scotch Sessioa 
 Cases. 
 
 Nix. F. Nixon's Forms. 
 
 No. Ca. Ecc. & Mar. or No. Cas. Ecc. & M. Notes 
 of Cases in the English Ecclesiastical and Maritime 
 Courts. 
 
 No. East. Rep. Northeastern Reporter (commonly 
 cited N. E.). 
 
 Wo. N. Novae Narrationes. 
 
 No. West. Rep. Northwestern Reporter (commonly 
 cited N. W.). 
 
 Nol. M. Cas. or Nol. Mag. or Nol. Just, or NoL 
 Sett. Cas. Nolan's English Magistrates' Cases. 
 
 Nol. Sett. Nolan's Settlement Cases.
 
 ABBREVIATION 
 
 63 
 
 ABBREVIATION 
 
 Non. Cul. Non culpabllis. Not guilty. 
 Nor. Fr. Norman French. 
 
 Nor. L. C. Inh. Norton's Leading Cases on Inher- 
 itance, India. 
 Norc. Noreross's Reports, vols. 23-24 Nevada. 
 
 its, vols. 82-96 Pennsylvania. 
 
 Norr. Peake. Norris's Peake's Law of Evidence. 
 
 North. Northington's Reports, English Chancery, 
 Eden's Reports. 
 
 North. Co. Rep. Northampton County Reporter, 
 Pennsylvania. 
 
 North W. L.J. Northwestern Law Journal. 
 
 North & G. North & Guthrie's Reports, vols. 68-80 
 Missouri Appeals. 
 
 Northam. Northampton Law Reporter, Pennsyl- 
 vania. 
 
 Northum. Northumberland County Legal News, 
 Pennsylvania. 
 
 Northw. Pr. Northwest Provinces, India. 
 
 Northw. Rep. or Northivcst. Rep. Northwestern Re- 
 porter (commonly cited N. W.). 
 
 Not. Cas. Notes of Cases in the English Ecclesi- 
 astical and Maritime Courts ; — Notes of Cases at 
 Madras (Strange). 
 
 Not. Cas. Ecc. & M. Notes of Cases in the English 
 Ecclesiastical and Maritime Courts. 
 
 Not. Cas. Madias. Notes of Cases at Madias 
 (Strange). 
 
 Not. Dec. Notes of Decisions (Martin's North 
 Carolina Reports). 
 
 Not. J. Notaries Journal. 
 
 Not. Op. Wilmot's Notes of Opinions and Judg- 
 ments. 
 
 Notes of Ca. Notes of Cases, English. 
 
 Notes on U. S. Notes on United States Reports. 
 
 Not t Mech. L. L. Nott on the Mechanics' Lien 
 Law. 
 
 Nott <£• H. Nott and Huntington's Reports, U. S. 
 Court of Claims Reports, vols. 1-17. 
 
 Nott dc Hop. Nott & Hopkins's United States Court 
 of Claims Reports, vols. 8-29. 
 
 Nott 6 Hunt. Nott & Huntington's Reports, vols. 
 1-7 United States Court of Claims. 
 
 NottAMcC. Nott & McCord's South Carolina Re- 
 ports. 
 
 Nott i£ McC. Nott and McCord's Reports, South 
 Carolina. 
 
 Nouv. Den. Denlzart Collection de Decisions 
 Nouvelles. 
 
 Nouv. Rev. Nouvelle Revue de Droit Francals, 
 Paris. 
 
 Nov. Novelise. The Novels, or New Constitutions. 
 
 Nov. Rec. Novisiml Recopllaclon de las Leyes de 
 Espana. 
 
 Nov. Sc. Nova Scotia Supreme Court Reports. 
 
 Nov. Sc. Dec. Nova Scotia Decisions. 
 
 Nov. Sc. L. R. or Nova Scotia L. Rep. Nova Scotia 
 Law Reports. 
 
 Noy. Noy's English King's Bench Reports. 
 
 Noy Max. Noy's Maxims. 
 
 Noyes Char V. Noyes on Charitable Uses. 
 
 Nye. Nye's Reports, vols. 18-21 Utah. 
 
 O. Ohio Reports;— Ontario; — Ontario Reports; — 
 Oregon Reports ;— Otto's United States Supreme 
 Court Reports ;— Ordonnance ;— Ohio Reports. Otto's 
 Reports, U. S. Supreme Court Reports, vols. 81-107. 
 
 O.B. Old Bailey;— Old Benloe;— Orlando Brldg- 
 man;— Session Papers of the Old Bailey. 
 
 O. B. S. Old Bailey's Sessions Papers. 
 
 O. B. d F. N. Z. Olllvler, Bell & Fitzgerald's New 
 Zealand Reports. 
 
 0. Ben. or O. Benl. Old Benloe's Reports, English 
 Common Pleas (Benloe, of Benloe and Dalison, 
 Edition of 16S9). 
 
 O. Bridg. Orlando Brldgman's English Common 
 Pleas Reports;— Carter's Reports, tempore Brldg- 
 man's English Common Pleas. 
 
 O'Brien M. L. O'Brien's Military Law. 
 
 O.C. Orphans' Court ;— Old Code (Louisiana Civ- 
 il Code of 1808). 
 
 O. C. C. Ohio Circuit Court Reports. 
 
 O. C. C. N. S. Ohio Circuit Court Reports, New 
 Series. 
 
 0. C. D. Ohio Circuit Decisions. 
 
 O. D. Ohio Decisions. 
 
 O.D.C.C. Ohio Decisions, Circuit Court (prop- 
 erly cited Ohio Circuit Decisions). 
 
 O. Q. Official Gazette, O. S. Patent Office, Wash- 
 ington, D. C. 
 
 V. J. Act. Ontario Judicature Act 
 
 O'Mal. dcH. O'Malley and Hardcastle's E. 
 Cases. 
 
 B. Old Natura Brevlum. 
 ilNeg.L. O'Neal's Negro Law of South 
 Carolina. 
 
 O. R. Ontario Reports. 
 
 O. S. Ohio State Reports ;— Old Series ;— Old Se- 
 ries King's & Queen's Bench Reports, Ontario, (Up- 
 per Canada). 
 
 O. S. C. D. or O. S. U. Ohio Supreme Court Deci- 
 sions, Unreported Cases. 
 
 O. St. Ohio State Reports. 
 
 O. S. & C. P. Dec. Ohio Superior and Common 
 Pleas Decisions. 
 
 0. & T. Oyi r and Terminer. 
 
 O'Brien. O'Brien's Upper Canada Reports. 
 
 O'Callacjhan, Neva Neth. O'Callaghan's History of 
 New Netherland. 
 
 Oct. Str. Octavo Strange, Select Cases on Evi- 
 dence. 
 
 Odcneal. Odeneal's Reports, vols. 9-11 Oregon. 
 
 Off. Br. Offlclna Brevium. 
 
 Off. Ex. or Off. Exec. Wentworth's Office of Execu- 
 tors. 
 
 Off. Gaz. Pat. Off. Official Gazette, U. S. Patent 
 Office, Washington, D. C. 
 
 Off. Min. Officer's Reports, Minnesota. 
 
 Offlrcr. Officer's Reports, vols. 1-9 Minnesota. 
 
 Ogd. or Oyden. Ogden's Reports, vols. 12-15 Lou- 
 isiana. 
 
 Ohio. Ohio;— Ohio Reports. 
 
 Ohio C. C. Ohio Circuit Court Reports. 
 
 Ohio L. J. Ohio Law Journal. 
 
 Ohio Leg. N. Ohio Legal News, Norwalk, Ohio. 
 
 Ohio N. P. Ohio Nisi Prius Reports. 
 
 Ohio Prob. Ohio Probate Court Reports. 
 
 Ohio R. Cond. Ohio Reports, Condensed. 
 
 Ohio St. Ohio State Reports. 
 
 Ohio Sup. & C. P. Dec. Ohio Superior and Com- 
 mon Pleas Decisions. 
 
 O'Keefe Ord. O'Keefe's Orders in Chancery, Ire- 
 land. 
 
 Oke Mag. Syn. Oke's Magisterial Synopsis. 
 
 Okla. Oklahoma Territorial Reports. 
 
 01. Con. Oliver's Conveyancing. 
 Ol. Prec. Oliver's Precedents. 
 
 Olc. or Olc. Adm. Olcott's Admiralty Reports, U. 
 S. So. Dlst. of N. Y. 
 
 Old Ben. Benloe In Benloe & Dalison, English 
 Common Pleas Reports. 
 
 Old Nat. Brev. Old Natura Brevlum. 
 
 Oliph. Ollphant on Law of Horses. 
 
 Oldr. Oldright's Reports, Nova Scotia. 
 
 Oliv. B. & L. Oliver, Beavan and Lefroy's Reports, 
 English Railway and Canal Cases, vols. 5-7. 
 
 Oil. B. <£ F. or Oil. B. & Fitz. (Nc\e Zealand). Olll- 
 vler, Bell and Fitzgerald's New Zealand Reports. 
 
 Oil. Bell £ Fitz. Sup. Olllvler, Bell and Fitzger- 
 ald (Supreme Ct. N. Z.). 
 
 O'Mal. £ H. O'Malley A Hardcastle's English 
 Election Cases. 
 
 Onsl. N. P. Onslow's Nisi Prius. 
 
 Ont. Ontario;— Ontario Reports. 
 
 Ont. App. R. or Ont. App. Rep. Ontario Appeal Re- 
 ports, Canada. 
 
 Ont. El. Ca. Ontario Election Cases. 
 
 Ont. P. R. or Ont. Pr. or Ont. Pr. Rep. Ontario 
 Practice Reports. 
 
 Op. Att. Gen. Opinions of the Attorneys General 
 of the United States. 
 
 Op. Att.-Oen. N. Y. Opinions of the Attorney-Gen- 
 erals, New York (Slckels's Compilation). 
 
 Op. Att.-Oen. (V. S.). Opinions of the Attorney- 
 Generals, United States. 
 
 Op. N. Y. Atty. Gen. Slckels's Opinions of Attor- 
 neys-General of New York. 
 
 Or. Oregon; — Oregon Reports. 
 
 Or. T. Rep. Orleans Term Reports, vols. 1, 2 Mar- 
 tin, Louisiana. 
 
 Ord. Ord on Usury. 
 
 Ord. Amst. Ordinance of Amsterdam.
 
 ABBREVIATION 
 
 64 
 
 ABBREVIATION 
 
 Ord. Ant. Ordinance of Antwerp. 
 
 Ord. BiZb. Ordinance of Bilboa. 
 
 Ord. Ch. Orders in Chancery. 
 
 Ord. Cla. Lord Clarendon's Orders. 
 
 Ord. Copenh. Ordinance of Copenhagen. 
 
 Ord. Ct. Orders of Court. 
 
 Ord. de la Mar. or Ord. Mar. Ordonnance de la Ma- 
 rine de Louis XIV. 
 
 Ord. Flor. Ordinances of Florence. 
 
 Ord. Gen. Ordinance of Genoa. 
 
 Ord. Hamb. Ordinance of Hamburg. 
 
 Ord. Konigs. Ordinance of KSnigsberg. 
 
 Ord. Leg. Ordinances of Leghorn. 
 
 Ord. Port. Ordinances of Portugal. 
 
 Ord. Prus. Ordinances of Prussia. 
 
 Ord. Rott. Ordinances of Rotterdam. 
 
 Ord. Sivcd. Ordinances of Sweden. 
 
 Ord U. Ord on the Law of Usury. 
 
 Ordr. Jud. Ins. Ordronaux on Judicial Aspects of 
 Insanity. 
 
 Ordr. Med. Jur. Ordronaux's Medical Jurispru- 
 dence. 
 
 Or eg. Oregon;— Oregon Reports. 
 
 Orf. M. L. Orfila's Medecine Legale. 
 
 Orl. Bridg. or Orl. Bridgman. Orlando Brldgman's 
 Reports, English Common Pleas. 
 
 Orl. T. R. Orleans Term Reports, vols. 1 and 2, 
 Martin's Reports, Louisiana. 
 
 Orm. or Ormond. Ormond's Reports, vols. 12-15 
 Alabama. 
 
 Ort. Inst. Ortolan's Institutes of Justinian. 
 
 Ort. R. L. Ortolan's History of Roman Law. 
 
 Ot. or Otto. Otto's United States Supreme Court 
 Reports. 
 
 Ought. Oughton's Ordo Judiciorum. 
 
 Out. Outerbridge's Reports, vols. 97-110 Penn- 
 sylvania State. 
 
 Over, or Overton. Overton's Tennessee Reports. 
 
 Ow. or Owen. Owen's English King's Bench and 
 Common Pleas Reports ;— New South Wales Re- 
 ports. 
 
 Oxley. Young's Vice-Admiralty Decisions, Nova 
 Scotia, edited by Oxley. 
 
 P. Easter (Paschal) Term ;— Pennsylvania ;— Pe- 
 ters ;— Pickering's Massachusetts Reports ;— Probate; 
 — Pacific Reporter. 
 
 P. 1891, or 1891 P. English Law Reports, Probate 
 Division, from 1891 onward. 
 
 P. A. D. Peters's Admiralty Decisions. 
 
 P. O. Pleas of the Crown ;— Parliamentary Cases ; 
 —Practice Cases;— Prize Cases; — Patent Cases; — 
 Privy Council;— Prize Court; — Probate Court; — 
 Precedents in Chancery;— Penal Code;— Political 
 Code; — Procedure Civile. 
 
 P. C. Act. Probate Court Act. 
 
 P. C. App. Privy Council Appeals, English Law 
 Reports. 
 
 P. C. C. Privy Cases;— Peters's Circuit Court Re- 
 ports. 
 
 P. C. L. J. Pacific Coast Law Journal, San Fran- 
 cisco. 
 
 P. C. R. Parker's Criminal Reports, New York. 
 P. C. Rep. Privy Council Reports, English. 
 P.Cl.R. Parker's Criminal Reports, New York; 
 — Privy Council Reports. 
 
 P. D. or P. Div. Probate Division, English Law 
 Reports (1876-1890). 
 
 P. E. I. or P. E. I. Rep. Prince Edward Island Re- 
 ports (Haviland's). 
 
 P. F. S. P. F. Smith's Reports, vols. 51-81% Penn- 
 sylvania State. 
 
 P. Jr. & H. Patton, Jr., & Heath's Virginia Re- 
 ports. 
 P. L. Pamphlet Laws. Public Laws. Poor Laws. 
 P. It. Com. Poor Law Commissioners. 
 P. L. J. Pennsylvania Law Journal ;— Pittsburgh 
 Legal Journal, Pa. 
 P. L. R. Pennsylvania Law Record, Philadelphia. 
 P. N. P. Peake's English Nisi Prlus Cases. 
 P. O. Cas. Perry's Oriental Cases, Bombay. 
 P. O. O. Patent Office Gazette. 
 P. O. R. Patent Office Reports. 
 P. P. Parliamentary Papers. 
 
 P. P. A. P. Precedents of Private Acts of Parlia- 
 ment. ' 
 
 P.R. Parliamentary Reports;— Pennsylvania Re- 
 ports, by Penrose & Watts ;— Pacific Reporter;— 
 Probate Reports;— Pyke's Reports, Canada. 
 P. R. C. P. Practical Register in Common Pleas. 
 P. R. Ch. Practical Register in Chancery. 
 P. R. U. C. Practice Reports, Upper Canada. 
 P. R. & D. Power, Rodwell and Dew's Electioa 
 Cases, English. 
 
 P. S. C. V. S. Peters's United States Supreme 
 Court Reports. 
 
 P. S. R. Pennsylvania State Reports. 
 
 P. W. or P. Wms. Peere Williams's Reports, Eng- 
 lish Chancery. 
 
 P. & B. Pugsley & Burbridge's Reports, New 
 Brunswick. 
 
 P. & C. Prldeaux & Cole's Reports, English 
 Courts, vol. 4 New Session Cases. 
 
 P. d D. Perry & Davison's English Queen's Bench 
 Reports r— Probate and Divorce. 
 
 P. & H. Patton, Jr., & Heath's Virginia Reports. 
 
 P. & K. Perry & Knapp's English Election Cases, 
 
 P. & M. Philip and Mary ; thus 1 P. & M. signi- 
 fies the first year of the reign of Philip & Mary ;— 
 Pollock and Maitland's History of English Law. 
 
 P. & R. Pigott and Rodwell's Election Cases, Eng- 
 lish. 
 
 P. & W. Penrose and Watt's Pennsylvania Re- 
 ports. 
 
 Pa. Pennsylvania; — Pennsylvania Reports, by 
 Penrose & Watts;— Pennsylvania State Reports;— 
 Paine, United States. 
 
 Pa. Co. Ct. or Pa. Co. Ct. R. Pennsylvania County 
 Court Reports. 
 
 Pa. Dist. or Pa. Dist. R. Pennsylvania District 
 Court Reports. 
 
 Pa. L. G. or Pa. Leg. Gaz. Legal Gazette Reports 
 (Campbell's), Pennsylvania. 
 
 Pa. L. J. Pennsylvania Law Journal Reports 
 (Clark's) ;— Pennsylvania Law Journal, Philadel- 
 phia. 
 
 Pa. L. J. Rep. Pennsylvania Law Journal Reports 
 (Clark's Reports). 
 
 Pa. L. Rec. or Pa. La. Rec. Pennsylvania Law Rec- 
 ord, Philadelphia. 
 
 Pa. Law Jour. Pennsylvania Law Journal, Phila- 
 delphia. 
 
 Pa. Law Jour. Rep. Pennsylvania Law Journal 
 Reports (Clark's). 
 
 Pa. Law Rec. Pennsylvania Law Record, Phila- 
 delphia. 
 
 Pa. Law Ser. Pennsylvania Law Series. 
 
 Pa. N. P. Brightly's Nisi Prius Reports, Penn- 
 sylvania. 
 
 Pa. Rep. Pennsylvania Reports. 
 
 Pa. St. Pennsylvania State Reports. 
 
 Pa. St. Tr. Pennsylvania State Trials (Hogan's) 
 
 Pa. Super. Ct. Pennsylvania Superior Court 
 
 Pac. Pacific Reporter. 
 
 Pac. Coast L. J. Pacific Coast Law Journal, San 
 Francisco. 
 
 Pac. Law Mag. Pacific Law Magazine, San Fran- 
 cisco. 
 
 Pac. Law Reptr. Pacific Law Reporter, San Fran 
 cisco. 
 
 Pac. R. or Pac. Rep. Pacific Reporter (commonly 
 cited Pac. or P.). 
 
 Page Div. Page on Divorce. 
 
 Pai. Paine's United States Circuit Court Reports,: 
 — Paige's New York Chancery Reports. 
 
 Pai. Ch. or Paige Ch. Paige's New York Chancer) 
 Reports. 
 
 Paige Cas. Bom. Rel. Paige's Cases In Domestic 
 Relations. 
 
 Paige Cas. Part. Paige's Cases in Partnership. 
 
 Paine or Paine C. C. Paine's United States Clr- 
 cuit Court Reports. 
 
 Pal. Ag. Paley on Agency. 
 
 Pal. Conv. Paley on Summary Convictions. 
 
 Paley, Prin. & Ag. Paley on Principal and Agent 
 
 Palgrave. Palgrave's Proceedings in Chancery ; — 
 Palgrave's Rise and Progress of the English Com- 
 monwealth. 
 
 Palm. Palmer's English King's Bench Reports ; 
 —Palmer's Reports, vols. 53-60 Vermont. 
 
 Palm. Pr. Lords. Palmer's Practice In the House 
 of Lords.
 
 ABBREVIATION 
 
 65 
 
 ABBREVIATION 
 
 Palm. (Vt.). Palmer's Vermont Reports. 
 Pamph. Pamphlets. 
 Pand. Pandects. 
 
 f'apy. Papy's Reports, vols. 5, 6 Florida. 
 Par. Paragraph;— Parker's English Exchequer 
 Reports ;— Parsons's Reports, vols. 65-C6 New Hamp- 
 shire;— Parker's New York Criminal Reports. 
 Par. Dec. Parsons's Decisions, Massachusetts. 
 Par. Eq. Cas. Parsons's Select Equity Cases, 
 Pennsylvania. 
 Par. W. C. Parish Will Case. 
 
 Far.&Fonb.M.J. Paris and Fonblanque on Med- 
 ical Jurisprudence. 
 
 Pard. or Pard. Droit Commer. Pardessus, Cours de 
 Droit Commercial. 
 I'ard. Lois Mar. Pardessus's Lois Maritimes. 
 Pard. Scrv. Pardessus'a Traites des Servitudes. 
 Pardessus. Pardessus, Cours de Droit Commer- 
 cial; — Pardessus, Lois Maritimes; — Pardessus, 
 Traites des Servitudes. 
 
 Park. Parker's New York Criminal Reports ; — 
 Parker's English Exchequer Reports. 
 
 Park. Cr. Cas. or Park. Cr. Rep. Parker's Criminal 
 Reports, New York. 
 Park. Dig. Parker's California Digest. 
 Park Dow. Park on Dower. 
 
 Park. Exch. Parker's English Exchequer Reports. 
 Park. Hist. Ch. Parker's History of Chancery. 
 Park Ins. Park on Insurance. 
 
 Park. (N. H.J. Parker's New Hampshire Reports. 
 Park. Pr. Ch. Parker's Practice in Chancery. 
 Park. Rev. Cas. Parker's English Exchequer Re- 
 ports (Revenue Cases). 
 Park. Sh. Parker on Shipping and Insurance. 
 Parker. Parker's English Exchequer Reports; — 
 Parker's New York Criminal Reports ; — Parker's 
 New Hampshire Reports. 
 
 Parker, Cr. Cas. or Parker, Cr. R. (N. Y.). Parker's 
 New York Criminal Reports. 
 Pari. Cas. Parliamentary Cases. House of Lords. 
 Pari. Uist. Parliamentary History. 
 Pari. Reg. Parliamentary Register. 
 Paroch. Ant. Kennett's Parochial Antiquities. 
 Pars. Parsons (see Par.). 
 
 Pars. Arts. Parsons's Answer to the Fifth Part 
 of Coke's Reports.- 
 Pars. Bills <£ N. Parsons on Bills and Notes. 
 Pars. Cas. Parsons's Select Equity Cases, Penn- 
 sylvania. 
 
 Pars. Com. Parsons's Commentaries on American 
 Law. 
 Pars. Con. or Pars. Cont. Parsons on Contracts. 
 Pars. Costs. Parsons on Costs. 
 furs. Dec. Parsons's Decisions, Massachusetts. 
 Para. Eq. Cas. Parsons's Select Equity Cases, 
 Pennsylvania. 
 furs. Essays. Parsons's Essays on Legal Topics. 
 Pars. Ins. Parsons on Marine Insurance. 
 Pars. Law Bus. Parsons's Law of Business. 
 Pars. Mar. Ins. Parsons on Marine Insurance. 
 Par. Mar. L. or Pars. Mar. Law. Parsons on Marl- 
 time Law. 
 Pars. Merc. L. Parsons on Mercantile Law. 
 Pars. Notes & B. Parsons on Notes and Bills. 
 Pars. Part. Parsons on Partnership. 
 Pars. Sh. <£ Adm. Parsons on Shipping and Admir- 
 alty. 
 Pars. Wills. Parsons on Wills. 
 Pas. Terminus Paschae. Easter Term. 
 Pasch. Paschal's Reports, Texas. 
 Pasch. Ann. Const. Paschal's Annotated Constitu- 
 tion of the U. S. 
 
 Paschal. Paschal's Reports, vols. 28-31 Texas and 
 Supplement to vol. 25. 
 
 Pat. Patent ;— Paton's Scotch Appeal Cases ;— Pat- 
 erson's Scotch Appeal Cases ;— Paterson's New South 
 Wales Reports. 
 
 Pat. A pp. Cos. Paton's Scotch Appeal Cases 
 (Craigie, Stewart & Paton) ;— Paterson's Scotch. Ap- 
 peal Cases. 
 
 Pat. Com. or Pat. Comp. Paterson's Compendium 
 Of English and Scotch Law. 
 Pat. Dec. Patent Decisions. 
 Pat. II. L. Sc. See Pat. App. Co*. 
 
 Bouv.— 5 
 
 Pat. Law Rev. Patent Law Review, '.'ishing- 
 D. C. 
 Pat. Off. Gaz. Official Gazette, D. S. Patent Office, 
 
 ington, D. C. 
 P<-'i. erson's Law of Stock 
 
 Pat. d II. Patton and Heath's R 
 Pat. d Mur. Paterson and Murray's Report 
 South Wales. 
 
 Pater. Paterson's Scotch Appeal Cases ;— Pater- 
 son's New South Wales Reports. 
 
 9. App. Cas. Paterson's Scotch Appeal Cases. 
 Paters. r„„ p. Paterson's Compendium of English 
 and Scotch Law. 
 Paters. Ht. Ex. Paterson's Law of Stock Exchange. 
 Paterson. Paterson's Compendium of E 
 Scotch Law ;— Paterson on the Game Laws;- 
 son's Liberty of the Press ;— Paterson on the Lib- 
 erty of the Subject ;— Paterson's Law and Usages of 
 the Stock Exchange;— Paterson's Scotch Appeal 
 Cases. 
 
 Paton. Cralgie, Stewart, & Paton's Scotch Appeal 
 Cases. 
 
 Patr. El. Cas. or Patr. Elect. Cas. Patrick's Elec- 
 tion Cases, Upper Canada. 
 
 Patt. dc II. or Patton dc H. Patton, Jr., & Heath's 
 Virginia Reports. 
 Paul Par. Off. Paul's Parish Officer. 
 Paulus. Julius Paulus, Sentence 
 Pay. Munc. Rights. Payne on Municipal Rights. 
 Pea. Peake's English Nisi Priu- 
 Peach. Mar. Sett. Peachey on Marriage Settle- 
 ments. 
 Peak. Peake's Nisi Prlus Cases, English Courts. 
 Peak. Add. Cas. Peake's Additional Cases, Nisi 
 Prius, English. 
 
 Peake on Evidence. 
 Peak. N. P. Cas. Peake's Nisi Prius Cases, Eng- 
 lish. 
 
 Peake Add. Cas. Peake's Additional Cases, vol. 2 
 of Peake. 
 Peake N. P. Peake's English Nisi Prius Cases. 
 Pear. Pearson's Reports. Pennsylvania. 
 Pearce C. C. Pearce's Reports In Dearsly's Crown 
 Cases. English. 
 Pears. Pearson's Reports. Pennsylvania. 
 Peck. Peck's Tennessee R. | %;' s Reports, 
 
 vols. 11-30 Illinois;— Peckwell's Engl. 
 Cases. 
 Peck. El. Cas. Peckwell's Election Cases, English. 
 Peck. (III.). Peck's Reports, Illinois Supreme 
 Court (11-38 Illinois). 
 Peck Mun. L. Peck's Municipal Laws of Ohio. 
 Peck (Tenn.). Peck's Tennessee Reports. 
 Peck Tr. Peck's Impeachment Trial. 
 Peckw. or Peckw. Eng. El. Cas. Peckwell's English 
 Election Cases. 
 Peeples. Peeples' Reports, vols. 78, 79 Georgia. 
 Peeples de Stevens. Peeples & Stevens's Reports, 
 vols. 80-97 Georgia. 
 
 Peere Wms. or Peere Williams. Peere Williams's 
 Reports, English Chancery. 
 Pe/nb. J. & 0. Pemberton's Judgments and Orders. 
 Pen. Pennington's Reports, New Jersey Law. 
 Pen. Code. Penal Code. 
 
 Pen. N. J. Pennington's New Jersey Reports. 
 Pen. dc W. Penrose & Watts's Pennsylvania Re- 
 ports. 
 
 Penn. Pennsylvania ;— Pennsylvania State Re- 
 ports ;— Pennypacker's Unreported Pennsylvania 
 Cases ;— Pennington's New Jersey Reports ;— Penne- 
 will's Delaware Reports. 
 
 Penn. Bla. Pennsylvania Blackstone, by John 
 Reed. 
 
 Penn. Co. Ct. Rep. Pennsylvania County Court Re- 
 ports. 
 i'enn. Del. Pennewlll's Delaware Reports. 
 Penn. Dist. Rep. Pennsylvania District Reports. 
 Penn. L. O. Pennsylvania Legal Gazette Reports 
 (Campbell's). 
 
 . L. J. Pennsylvania Law Journal, Philadel- 
 phia. 
 
 Penn. L. J. R. Pennsylvania Law Journal Reports 
 (Clark's). 
 
 Penn. Law Jour. Pennsylvania Law Journal, Penn- 
 sylvania.
 
 ABBREVIATION 
 
 66 
 
 ABBREVIATION 
 
 Penn. Law Jour. Rep. Pennsylvania Law Journal 
 Reports (Clark's). 
 
 Penn. Law Rec. Pennsylvania Law Record, Phila- 
 delphia. 
 
 Penn. Leg. Gaz. Pennsylvania Legal Gazette Re- 
 ports (Campbell's). 
 
 Penn. Pr. Pennsylvania Practice, by Troubat and 
 Haly. 
 
 Penn. R. or Penn. Rep. Pennsylvania Reports. 
 
 Penn. St. or Penn. St. R. Pennsylvania State Re- 
 ports. 
 
 Penna. L. R. Pennsylvania Law Record, Philadel- 
 phia. 
 
 Penning. Pennington's Reports, New Jersey. 
 
 Penny. Pennypacker's Unreported Pennsylvania 
 Cases; — Pennypacker's Pennsylvania Colonial Cases. 
 
 Penr. & W. Penrose and Watts's Pennsylvania Re- 
 ports. 
 
 Penrud. Anal. Penruddock's Analysis of the Crim- 
 inal Law. 
 
 Peo. L. Adv. People's Legal Adviser, Utica, N. Y. 
 
 Per. Or. Cas. Perry's Oriental Cases, Bombay. 
 
 Per T. & T. Perry on Trusts and Trustees. 
 
 Per. & Dav. Perry &. Davison's English King's 
 Bench Reports. 
 
 Per. & K. El. Cas. or Per. & En. Perry and Knapp's 
 Election Cases, English. 
 
 Perk. Perkins on Conveyancing ; — Perkins on 
 Pleading ;— Perkins's Profitable Book (Conveyanc- 
 ing). 
 
 Perk. Prof. Bk. Perkins's Profitable Book. 
 
 Perp. Pat. Perpigna on Patents. 
 
 Perry. Sir Erskine Perry's Reports, In Morley's 
 (East) Indian Digest ; — Perry's Oriental Cases, Bom- 
 bay. 
 
 Perry & D. Perry & Davison's English King's 
 Bench Reports. 
 
 Perry & Kn. Perry & Knapp's English Election 
 Oases. 
 
 Pet. Peters's United States Supreme Court Re- 
 ports ; — Peters's United States Circuit Court Re- 
 ports ;— Peters's United States District Court Re- 
 ports (Admiralty Decisions) ; — Peters's Prince Ed- 
 ward Island Reports. 
 
 Pet. Ad. or Pet. Adm. Peters's United States Dis- 
 trict Court Reports (Admiralty Decisions). 
 
 Pet. Br. or Pet. Brooke. Petit Brooke or Brooke's 
 New Cases, English King's Bench (Bellewe's Cases 
 temp. Hen. VIII.). 
 
 Pet. C. C. Peters's United States Circuit Court 
 Reports. 
 
 Pet. Cond. Peters's Condensed Reports, United 
 States Supreme Court. 
 
 ■Pet. Dig. Peters's United States Digest ;— Peti- 
 colas's Texas Digest. 
 
 Pet. S. C. Peters's United States Supreme Court 
 Reports. 
 
 Peters. Peters's Reports, U. S. Supreme Court. 
 
 Peters Adm. Peters's United States District Court 
 Reports (Admiralty Decisions). 
 
 Peters C. C. Peters's Reports, U. S. Circuit Court, 
 3d Circuit. 
 
 Petersd. Abr. Petersdorff's Abridgment. 
 
 Petersd. B. Petersdorff on the Law of Bail. 
 
 Petersd. L. of N. Petersdorff on the Law of Na- 
 tions. 
 
 Petersd. Pr. Petersdorff's Practice. 
 
 Peth. Int. Petheram on Interrogatories. 
 
 Petit Br. Petit Brooke, or Brooke's New Cases, 
 English King's Bench. 
 
 Ph. Phillips' English Chancery Reports ;— Phllli- 
 more's English Ecclesiastical Reports (see Phil.). 
 
 Ph. Ch. Phillips's English Chancery Reports. 
 
 Ph. St. Tr. Phillipps's State Trials. 
 
 Phal. C. C. or Phalcn. Phalen's Criminal Cases. 
 
 Phear W. Phear on Rights of Water. 
 
 Pheney Rep. Pheney's New Term Reports. 
 
 Phil. Phillips's English Chancery Reports ; — Phil- 
 lips's North Carolina Reports ; — Phillips's English 
 Election Cases ; — Phillimore's English Ecclesiastical 
 Reports ; — Philadelphia Reports ; — Phillips's Illinois 
 Reports. 
 
 Phil. Ecc. Judg. Phillimore's Ecclesiastical Judg- 
 ments. 
 
 Phil. Ecc. R. Phillimore's English Ecclesiastical 
 Reports. 
 
 Phil. El. Cas. Phillips's English Election Cases. 
 
 Phil. Eq. Phillips's North Carolina Equity Re- 
 ports. 
 
 Phil. Ev. Phillips on Evidence. 
 
 Phil. Fam. Cas. Phillipps's Famous Cases in Cir- 
 cumstantial Evidence. 
 
 Phil. Ins. Phillips on Insurance. 
 
 Phil. Law or Phil. N. C. Phillips's North Carolina 
 Law Reports. 
 
 Phil. Pat. Phillips on Patents. 
 
 Phil. St. Tr. Phillipps's State Trials. 
 
 Phila. Philadelphia Reports, Common Pleas of 
 Philadelphia County. 
 
 Phila. Law Lib. Philadelphia Law Library. 
 
 Phila. (Pa.). Philadelphia Reports, Common Pleas 
 of Philadelphia County. 
 
 Philippine Co. Philippine Code. 
 
 Phill. Phillimore's Reports, English Ecclesiastical 
 Courts ;— Phillips (see Phil, and Phillips). 
 
 Phill. Copyr. Phillips on Copyright. 
 
 Phill. Cr. L. Phillimore's Study of the Criminal 
 Law. 
 
 Phill. Dom. Phillimore on the Law of Domicil. 
 
 Phill. Eccl. Phillimore on Ecclesiastical Law. 
 
 Phill. Eccl. Judg. Phillimore's Ecclesiastical Judg- 
 ments. 
 
 Phill. El. Cas. Phillips's Election Cases. 
 
 Phill. Eg. Phillips's Equity Reports, North Caro- 
 lina. 
 
 Phill. Ev. Phillimore on Evidence ;— Phillips on 
 Evidence. 
 
 Phill. Fam. Cas. Phillipps's Famous Cases In Cir- 
 cumstantial Evidence. 
 
 Phill. Ins. Phillips on Insurance. 
 
 Phill. Insan. Phillips on Insanity. 
 
 Phill. Int. Phillimore on International Law. 
 
 Phill. Jur. Phillimore on Jurisprudence. 
 
 Phill. Law (N. C). Phillips's Law Reports, North 
 Carolina. 
 
 Phill. Mech. Liens. Phillips on Mechanics' Liens. 
 
 Phill. Prin. Jur. Phillimore's Principles and Max- 
 ims of Jurisprudence. 
 
 Phill. Priv. L. Phillimore's Private Law among 
 the Romans. 
 
 Phill. Rom. L. Phillimore's Study and History of 
 the Roman Law. 
 
 Phill. St. Tr. Phillips's State Trials. 
 
 Phillim. Phillimore's English Ecclesiastical Re- 
 ports. See, also, Phil., Phill. 
 
 Phillim. Dom. Phillimore on the Law of Domicil. 
 
 Phillim. Ecc. Law. Phillimore's Ecclesiastical 
 Law. 
 
 Phillips. Phillips's English Chancery Reports ; — 
 Phillips's North Carolina Reports, Law and Equity ; 
 —Phillips's Reports, vols. 152-187 Illinois. 
 
 Pick. Pickering's Reports, Massachusetts. 
 
 Pickle. Pickle's Reports, vols. 85-108 Tennessee. 
 
 Pierce R. R. Pierce on Railroads. 
 
 Pig. Rec. Pigott on Common Recoveries. 
 
 Pig. & R. Pigott and Rodwell's Registration Ap- 
 peal Cases, English. 
 
 Pike. Pike's Reports, vols. 1-5 Arkansas. 
 
 Pin. or Pinn. Plnney's Wisconsin Reports. 
 
 Pist. or Piston. Piston's Reports, Mauritius. 
 
 Pitc. Crim. Tr. Pitcairn's Ancient Criminal Trials, 
 Scotland. 
 
 Pitc. Tr. Pitcairn's Ancient Criminal Trials, Scot- 
 land. 
 
 Pitm. Prin. & Sur. Pitman on Principal and 
 Surety. 
 
 Pitm. S. Pitman on Suretyship. 
 
 Pitts. L. J. or Pitts. Leg. Jour. Pittsburg Legal 
 Journal, Pittsburg, Penn. 
 
 Pitts. Rep. or Pitts. Repts. Pittsburgh Reports, 
 Pennsylvania Courts (reprinted from the Journal). 
 
 Pittsb. Leg. J. (O. S.). Pittsburg Legal Journal, 
 Old Series. 
 
 Pittsb. R. (Pa.). Pittsburg Reports, Pennsylvania 
 Courts (reprinted from the Journal). 
 
 PI. Placiti Generalia ;— Plowden's Commentaries 
 or Reports, English King's Bench, etc. 
 
 PI. C. Placita Coronas (Pleas of the Crown).
 
 ABBREVIATION 
 
 67 
 
 ABBREVIATION' 
 
 PI. Com. Plowden's Commentaries or Reports, 
 English King's Bi QCh. 
 
 Plowden on Usury. 
 Piatt Gov. Piatt ou the Law of Covenants. 
 I", nt Lease. Piatt on Leases. 
 p. Plebiscite. 
 Plaintiff. 
 
 or Plowd. Com. Plowden's English 
 King's Bunch Commentaries or Reports. 
 
 . Tr. Plowden's Crim. Con. Trials. 
 
 Plum. Cotitr. Plumptre on Contracts. 
 
 Po. Ct. Police Court. 
 
 Pol. Pollexfen's English King's Bench Reports, 
 etc. ; — Police. 
 
 Pol. Code. Political Code. 
 
 Pol. Cont. Pollock on Contracts. 
 
 Pol. Set. Quar. Political Science Quarterly. 
 
 Poll. Pollexfen's Engltsh King's Bench Reports. 
 
 Poll. C. C. Pr. Pollock's Practice of the County 
 Courts. 
 
 Poll. Contr. Pollock on Contracts. 
 
 PoIZ. Big. Part. Pollock's Digest on the Law of 
 Partnership. 
 
 Poll. Doc. Pollox on Production of Documents. 
 
 Poll. Lead. Can. Pollock's Leading Cases. 
 
 Poll. Part. Pollock on Partnership. 
 
 Poll. & Maitl. Pollock & Maltland's History of 
 English Law. 
 
 Pollex. Pollexfen's English King's Bench Re- 
 ports, etc. 
 
 Pols. Int. or Pols. Law of Nat. Poison on Law of 
 Nations. 
 
 Pom. Con. L. or Pom. Const. Law. Pomeroy's Con- 
 stitutional Law of the United States. 
 
 Pom. Contr. Pomeroy on Contracts. 
 
 Pom. Mun. L. Pomeroy's Municipal Law. 
 
 Pomeroy. Pomeroy's Reports, vols. 73-128 Califor- 
 nia. 
 
 Poorc Const. Poore's Federal and State Constitu- 
 tions. 
 
 Pop. Popham's English King's Bench Reports. 
 
 Pop. Sci. Mo. Popular Science Monthly. 
 
 Pope. (Pope) Opinions Attorney General, pL 1, 
 vol. 22. 
 
 Pope C. & E. Pope on Customs and Excise. 
 
 Pope, Lun. Pope on Lunacy. 
 
 Poph. Popham's Reports, English King's Bench. 
 
 Poph. (2). Cases at the end of Popham's Reports. 
 
 Port. (Ala.). Porter's Alabama Reports. 
 
 Port. find.). Porter's Reports, Indiana. 
 
 Porter. Porter's Alabama Reports ; — Porter's Re- 
 ports, vols. 3-7 Indiana. 
 
 Posey. Unreported Commissioner Cases, Texas. 
 
 Post. Post's Reports, vols. 23-26 Michigan;— Post's 
 Reports, vols. 42-61 Missouri. 
 
 Paste's Gaius Inst. Poste's Translation of Gaius. 
 
 Posfl. Diet. Postlethwaite's Commercial Diction- 
 ary. 
 
 Pot. Dwar. Potter's Dwarrls on Statutes. 
 
 Poth. Bail d Rente. Pothier, Traite du Contrat de 
 Ball a Rente. 
 
 Poth. Cont. Pothier on Contracts. 
 
 Poth. Cont. de Change. Pothier, Traite du Con- 
 trat de Change. 
 
 Poth. Cont. Sale or Poth. Contr. Sale. Pothier, 
 Treatise on the Contract of Sale. 
 
 Poth. de Change. Pothier, Traite du Contrat de 
 Change. 
 
 Poth. de I'Usure. Pothier, Traite de l'Usure. 
 
 Poth. de Socie'te App. Pothier, Traite du Contrat 
 de Society. 
 
 Poth. du Depot. Pothier, Traite du Depot 
 
 Poth. CEuv. Pothier's CEu 
 
 Poth. Louage. Pothier, Traite du Contrat de Lou- 
 age. 
 
 Poth. Mar. Cont. Pothier's Treatise on Maritime 
 Contracts. 
 
 Poth. Mar. Louage. Pothier, Traite du Contrat de 
 Louage. 
 
 Poth. Obi. Pothier, Traite des Obligations. 
 
 Poth. Pand. Pothier's Pandects. 
 
 Poth. Part. Pothier on Partnership. 
 
 Poth. Proc. Civ. or Poth. Proc. Civil. Pothier, 
 Trait6 de la Procedure Civile. 
 
 Poth. Proc. Crim. Pothier, Traits de la Pre 
 Crlminale. 
 
 Poth. Sociiti. Pothier, Traite du Contrat de 8o- 
 ciete. 
 
 Poth. Traite' de Change. Pothkr, Traite da 
 trat de Change. 
 
 Poth. Vente. Pothier, Traite du Contrat de 
 
 Pothier, Pa •/. Pothier, PandecUr; J 
 
 Potter. Potter's Reports, vols. 4-7 Wyoming. 
 /■ Corp. Potter on Corporations. 
 
 '. Potter's Dwarrls on Statutes. 
 
 Potts L. D. Potts's Law Dictionary. 
 In •' Powell's American Daw. 
 
 Pow. Apr. Pr. Powell's Appellate Proceedings. 
 
 Pow. Con. PoVell on Contracts. 
 
 P''io. Conv. Powell on Conveyancing. 
 
 Pow. Dev. Powell, Essay upon the Learning of 
 ', etc. 
 
 11 on Evidence. 
 
 Pow. Mort. or Pow. Mortg. Powell on Mortgages. 
 
 Pow. Power 
 
 Pow. Pr. Powell's Precedents In Conveyancing. 
 
 Poiv. R. d D. Power, Rodwell and Dew's Election 
 Cases, English. 
 
 Poyn. M. di D. Poynter on Marriage and Divorce. 
 
 Pr. Price's English Exchequer Reports ;—Prin- 
 'cipium (the beginning of a title, law, or section);— 
 Practice Reports (Ontario). 
 
 Pr. V. K. B. Practice Cases in the King's Bench. 
 
 Pr. Ch. Precedents In Chancery, by Finch ;— Prac- 
 tice in the High Court of Chancery. 
 
 Pr. Ct. Prerogative Court. 
 
 Pr. Dec. Printed Decisions (Sneed's), Kentucky. 
 
 Pr. Div. Probate Division. Law Reports ;— Prlt- 
 chard's Divorce and Matrimonial Cases. 
 
 Pr. Exch. Price's Exchequer Reports, English. 
 
 Pr. Fale. President Falconer's Reports, Scotch 
 Court of St.- 
 
 Pr. L. Private Law or Private Laws. 
 
 Pr. Min. Printed Minutes of Evidence. 
 
 Pr. R. Practice Reports. 
 
 Pr. Reg. B. C. Practical Register In the Ball 
 Court. ' 
 
 Pr.Reg.C.P. Practical Register in the Common 
 Pleas. 
 
 Pr. Reg. Ch. Practical Register in Chancery 
 (Styles's). 
 
 Pr. St. Private Statutes. 
 
 Pr. & Div. Probate and Divorce, English Law Re- 
 ports. 
 
 Pra. Cos. Prater's Cases on Conflict of Laws. 
 
 Pract. The Practitioner. 
 
 Prat. Cos. Prater's Cases on Conflict of Laws. 
 
 Prat. H. d W. Prater on the Law of Husband and 
 Wife. 
 
 Pratt B. S. Pratt on Beneficial Building Societies. 
 
 Pratt C. W. Pratt on Contraband of 
 
 Pratt Cont. Cos. Pratt's Contrabund-of-War Cases. 
 
 Preb. Dig. Preble Digest, Patent Cases. 
 
 Prec. Ch. Precedents in Chancery. 
 
 Pref. Preface. 
 
 Prel. Pr61iinlnaire. 
 
 Prer. Prerogative Court 
 
 Pres. Abs. Preston on Abstracts. 
 
 Pres. Conv. Preston on Conveyancing. 
 
 Pres. Est. Preston on Bstal 
 
 Pres. Fale. President Falconer's Scotch Session 
 Cases (Gilmour & Falconer). 
 
 Pres. Leg. Preston on Legacies. 
 
 Pres. Merg. Preston on Merger. 
 
 Pres. Shcp. T. Preston's Sheppard's Touchstone, 
 
 Prest. Conv. Preston on Conveyancing. 
 
 Prest. Est. Preston on Es- 
 
 Prcst. Merg. Preston on .Merger. 
 
 Pri. or Price. Price's Exchequer Reports. 
 
 Price Exch. Price's Reports, Exchequer, English- 
 Price Liens. Price on Liens. 
 
 P, Price's Notes of 
 Points of Practice, English Exchequer Cases. 
 
 It. Est. Price ou Acts Relating to Real Es- 
 tate (Pa.). 
 
 Price <£ St. Price and Steuart Trade-mark Cases. 
 Prick, or Prickett fid.). Prlckett's Idaho Reports. 
 Prid. Chu. Gui. Prideaux's Churchwarden's G>id«.
 
 ABBREVIATION 
 
 68 
 
 ABBREVIATION 
 
 Prid. Free. Prldeaux's Precedents in Convey- 
 ancing. 
 
 Pr.d. & C. Prideaux and Cole's Reports, English, 
 New Sessions Cases, vol. 4. 
 
 Prin. Principium. The beginning of a title or 
 law. 
 
 Prin. Dec. Printed Decisions (Sneed's), Kentucky. 
 
 Prior Lim. Prior on Construction of Limitations. 
 
 Pritch. Ad. Dig. Pritehard's Admiralty Digest. 
 
 Pritch. M. & D. Pritchard on Marriage and Di- 
 vorce. 
 
 Pritch. Quar. Sess. Pritchard, Quarter Sessions. 
 
 Priv. Counc. App. Privy Council Appeals. 
 
 Priv. Lond. Customs or Privileges of London. 
 
 Pro. L. Province Law. 
 
 Pro. qncr. Pro querentem. For the plaintiff. 
 
 [189 1] Prob. Law Reports, Probate Division, 
 from 1891 onward. 
 
 Prob. Code. Probate Code. 
 
 Prob. Div. Probate Division, English Law Re- 
 ports. 
 
 Prob. Rep. Probate Reports. 
 
 Prob. Rep. Ann. Probate Reports Annotated. 
 
 Prob. & Adm. Div. Probate and Admiralty Divi- 
 sion, Law Reports. 
 
 Prob. & Div. Probate and Divorce, English Law 
 Reports. 
 
 Prob. & Mat. or Prob. & Matr. Probate and Matri- 
 monial Cases. 
 
 Proc. Ch. Proceedings in Chancery. 
 
 Proc. Pr. or Proc. Prac. Proctor's Practice. 
 
 Proff. Corp. Proffatt on Corporations. 
 
 Proff. Jury Tr. Proffatt on Jury Trials. 
 
 Proff. Not. Proffatt on Notaries. 
 
 Proff. Wills. Proffatt on Wills. 
 
 Prop. Lawyer N. S. Property Lawyer, New Series 
 (periodical), England. 
 
 Proud. Dom. Pub. Proudhon's Domaine Public. 
 
 Proudf. Land Dec. (U. S.). Proudflt's United 
 States Land Decisions. 
 
 Prouty. Prouty's Reports, vols. 61-68 Vermont 
 
 Prt. Rep. Practice Reports. 
 
 Psych. & M. L. J. Psychological and Medico-Legal 
 Journal, New York. 
 
 Puff. Puffendorf's Law of Nature and Nations. 
 
 Pugs. Pugsley's Reports, New Brunswick. 
 
 Pugs. & Bur. or Pugs. & Burb. Pugsley and Bur- 
 bridge's Reports, New Brunswick. 
 
 Pull. Accts. Pulling's Law of Mercantile Accounts. 
 
 Pull. Attor. Pulling on the Law of Attorneys. 
 
 Pull. Laws & Cust. Lond. Pulling's Treatise on the 
 Laws, Customs, and Regulations of the City and 
 Port of London. 
 
 Pull. Port of London. Pulling, Treatise on the 
 Laws, Customs, and Regulations of the City and 
 Port of London. 
 
 Puis, or Pulsifer. Pulsifer's Reports, vols. 65-68 
 Maine. 
 
 Pult. Pulton de Pace Regis. 
 
 Pump Ct. Pump Court (London). 
 
 Punj. Rec. Punjab Record. 
 
 Purd. Dig. (Pa.). Purdon's Digest of Pennsylvania 
 Laws. 
 
 Purd. Dig. (U. S.). Purdon's Digest of United 
 States Laws. 
 
 Puter. PI. Puterbauch's Pleading. 
 
 Pyke. Pyke's Lower Canada King's Bench Re- 
 ports. 
 
 Q. Question; — Quorum; — Quadragesms (Year 
 Books Part IV) ;— Quebec; — Queensland; —Attach. 
 Quoniam Attachiamenta. 
 
 Q. B. Queen's Bench;— Queen's Bench Reports 
 (Adolphus & Ellis, New Series, English) ;— English 
 Law Reports, Queen's/ Bench (1841-1852) ;— Queen's 
 Bench Reports, Upper Canada;— Queen's Bench Re- 
 ports, Quebec;— English Law Reports, Queen's 
 Bench Division, 1891. 
 
 [1891] Q.B. Law Reports, Queen's Bench Divi- 
 sion, from 1891 onward. 
 
 Q. B. Div. or Q. B. D. Queen's Bench Division, 
 English Law Reports (1876-1890). 
 
 Q. B. R. Queen's Bench Reports, by Adolphus & 
 Ellis (New Series). 
 Q. B. U. C. Queen's Bench Reports, Upper Canada. 
 Q. C. Queen's Counsel. 
 
 Q. L. R. Quebec Law Reports;— Queensland Law 
 Reports. 
 
 Q. P. R. Quebec Practice Reports. 
 
 Q. R. Official Reports, Province of Quebec 
 
 Q. R. Q. B. Quebec Queen's Bench Reports. 
 
 Q. S. Quarter Sessions. 
 
 Q. t. Qui tarn. 
 
 Q. v. Quod vide; Which see. 
 
 Q. Vict. Statutes of Province of Quebec (Reign 
 of Victoria). 
 
 Q. War. Quo Warranto. 
 
 Qu. L. Jour. Quarterly Law Journal, Richmond, 
 Va. 
 
 Qu. L. Rev. Quarterly Law Review, Richmond, 
 Va. 
 
 Qua. cl. fr. Quare clausum f regit (q. v.). 
 
 Quadr. Quadragesms (Year Books, Part IV). 
 
 Quart. Rev. Quarterly Law Review, Richmond, 
 Virginia. 
 
 Qucb. L. R. Quebec Law Reports, two series. 
 Queen's Bench or Superior Court. 
 
 Queb. Q. B. Quebec Queen's Bench Reports. 
 
 Quebec L. Rep. Quebec Law Reports, two series, 
 Queen's Bench or Superior Court. 
 
 Queens. L. J. Queensland Law Journal. 
 
 Queens. L. R. Queensland Law Reports. 
 
 Quin. or Quincy. Quincy's Massachusetts Reports. 
 
 Quinti, Quinto. Year Book, 6 Hen. V. 
 
 Quo War. Quo Warranto. 
 
 R. Resolved. Repealed. Revised. Revision. 
 Rolls ; — King Richard ; thus 1 R. III. signifies tha 
 first year of the reign of King Richard III. ; — 
 Rawle's Reports, S. C. of Pennsylvania. 
 
 R. A. Regular Appeals. Registration Appeals. 
 
 Re. Rescriptum ; — Rolls of Court ; — Record Com- 
 missioners ; — Railway Cases ; — Registration Cases ;— 
 Revue Critique, Montreal. 
 
 R. C. & C R. Revenue, Civil and Criminal Re- 
 porter, Calcutta. 
 
 R. G. Regulse Generales, Ontario. 
 
 R. I. Rhode Island ; — Rhode Island Reports. 
 
 R. J. & P. J. Revenue, Judicial and Police Jour- 
 nal, Calcutta. 
 
 R.L. Roman Law; — Revised Laws; — Revue Le- 
 gale. 
 
 R. L. & S. Ridgeway, Lapp and Schoales's Reports, 
 Irish King's Bench. 
 
 R. L. & W. Roberts, Learning and Wallis's County 
 Court Reports, English. 
 
 R. M. Ch. or R. M. Charlt. R. M. Charlton's Geor- 
 gia Reports. 
 
 R. P. C. Real Property Cases, English ;— Reports 
 Patent Cases. 
 
 R. P. Cas. Real Property Cases, English. 
 
 R. P. & W. (Pa.). (Rawle) Penrose and Watt's 
 Pennsylvania Reports. 
 
 R. R. & Can. Cas. Railway and Canal Cases, Eng- 
 lish. 
 
 R. S. Revised Statutes. 
 
 R. S. L. Reading on Statute Law. 
 
 R. t. F. Reports tempore Finch, English Chan- 
 cery. 
 
 R. t. H. Reports tempore Hardwicke (Lee) Eng- 
 lish King's Bench ; — Reports tempore Holt (Cases 
 Concerning Settlement). 
 
 R. t. Hardio. Reports tempore Hardwicke, English 
 King's Bench. 
 
 R. t. Holt. Reports tempore Holt, English King's 
 Bench. 
 
 R. t Q. A. Reports tempore Queen Anne, vol. U 
 Modern Reports. 
 
 R. & B. Cas. Redfield and Bigelow's Leading Cases 
 on Bills and Notes. 
 
 R. & C. Cas. Railway and Canal Cases, English. 
 
 R. & C. N. Sc. Russell & Chesley's Reports, Nova 
 Scotia. 
 
 R. & G. N. Sc. Russell & Geldert's Reports, Nova 
 Scotia. 
 
 R. & H. Dig. Robinson & Harrison's Digest, On- 
 tario. 
 
 R. & J. Dig. Robinson & Joseph's Digest, Ontario. 
 
 R. & M. Russell & Mylne's English Chancery Re- 
 ports ;— Ryan & Moody's English Nisi Prius Reports. 
 
 R. & My. Russell and Mylne's Reports, English 
 Chancery. 

 
 ABBREVIATION 
 
 69 
 
 abbi:i:via'i 
 
 B. £ M. C. C. Ryan and Moody's Crown Cases Re- 
 ■ervcd, English. 
 
 R.&M.DUj. Rapalje & Mack's Digest of Railway 
 Law. 
 
 R. £ M. N. P. Ryan and Moody's Nisi Prius Cas- 
 es, English. 
 
 R. £ R. C. C. Russell and Ryan's Crown Cases Re- 
 served, English. 
 
 Ra. fa. English Railway and Canal Cases. 
 
 Bader. Rader'B H ports, vols. 13S-163 Missouri. 
 
 Raff Pens. Man. Raff's Pension Manual. 
 
 Rail, £ Can. Cas. English Railway and Canal Cas- 
 es ;— Railway and Canal Traffic Cases. 
 
 Railw. Cas. Railway Cases. 
 
 Railw. £ C. Cas. Railway and Canal Cases, Eng- 
 lish. 
 
 Railw. ii Corp. Law J. Railway and Corporation 
 Law Journal. 
 
 .1. Ram on Assets. 
 
 i as. P. £ E. Ram's Cases of Pleading and 
 Evidence. 
 
 Ram F. Ram on Facts. 
 
 Judgm. Ram on Science of Legal Judgment. 
 
 Ram Leg. Judgm. (Towns. Ed.). Ram's Science of 
 Legal Judgment, Notes by TowiiBbencL 
 
 Ram W. Ram on Exposition oC Wills. 
 
 Ram. £ Mor. Ramsey & Morln'a Montreal Law 
 Reporter. 
 
 Rand. Randolph's Virginia Reports ;— Randolph's 
 Reports, vols. 21-56 Kansas ;— Randolph's Reports, 
 vols. 7-11 Louisiana Annual ; — Randall's Reports, 
 vols. 52-71 Ohio State. 
 
 Rand. (Kan.). Randolph's Reports, Kansas. 
 
 Rand. (La.). Randolph's Reports, Louisiana An- 
 nual Report*, vols. 7-11. 
 
 Rand. Perp. Randall on Perpetuities. 
 
 Raney. Raney's Reports, vols. 16-20 Florida. 
 
 Rang. Dec. Sparks's Rangoon Decisions, British 
 Burmah. 
 
 /.-. P. Rankin on Patents. 
 
 Rai>. Fed. Re}. Dig. Rapalje's Federal Reference 
 Digest. 
 
 Rap. Jud. Q. B. R. Rapport's Judiciaries de Quebec 
 Cour du Banc de la Reine. 
 
 Rap. Jud. Q. C. S. Rapport's Judiciaries de Quebec 
 Cour Superieure. 
 
 Rap. Lar. Rapalje on Larceny. 
 
 Rap. N. Y. Dig. Rapalje's New York Digest. 
 
 Rap. £ L. or Rap. £ Law. or Rapal. £ L. Rapalje & 
 Lawrence, American and English Cases. 
 
 Rast. Rastell's Entries and Statutes. 
 
 Ratt. L. C. Rattigan's Leading Cases on Hindoo 
 Law. 
 
 Ratt. R. Li Rattigan's Roman Law. 
 
 Raio. or Rawle. Rawle's Pennsylvania Reports. 
 
 Rawle Const. Rawle on the Constitution. 
 
 Rawle, Cov. or Rawle Covt. Rawle on Covenants 
 for Title. 
 
 Rawle Eq. Rawle's Equity in Pennsylvania. 
 
 Rawle Pen. £ W. (Rawle) Penrose & Watts, Penn- 
 sylvania. 
 
 Ray Med. Jur. Ray's Medical Jurisprudence of 
 Insanity. 
 
 Ray Men. Path. Ray's Mental Pathology. 
 
 Raym. or Raym. Ld. Lord Raymond's Reports, 
 English King's Bench. 
 
 Raym. B. of Ex. Raymond on Bill of Exceptions. 
 
 Raym. Ch. Dig. Raymond's Chancery Digest. 
 
 Raym. Ent. Raymond's Book of Entries. 
 
 Raym. Sir T. or Raym. T. Sir Thomas Raymond's 
 English King's Bench Reports. 
 
 ond. Raymond's Reports, vols. 81-89 Iowa. 
 
 Rayn. Rayner's English Tithe Cases, Exchequer. 
 
 Re-af. Re-affirmed. 
 
 Re. de J. Revue de Jurisprudence, Montreal. 
 
 Be. de L. Revue de Jurisprudence et Legislation, 
 Montreal. 
 
 Real Est. Rec. Real Estate Record, New York. 
 
 Real Pr. Cas. Real Property Cases (English). 
 
 Rec. Records ; — Recorder ;— American Law Rec- 
 ord . 
 
 Rec. Com. Record Commission. 
 
 Rec. Dec. Vaux's Recorder's Decisions, Philadel- 
 phia. 
 
 Red. Redfleld's New York Surrogate Reports ;— 
 Reddington, Maine. 
 
 Red. Am. R. R. Cas. or Red. Cas. R. R. leld'a 
 
 Leading American Railway Cases. 
 
 B i. Cas. Wills. Redfleld's Leading Ca.ses on 
 •■ 
 
 Bed. R. L. Reddle's Roman Law. 
 
 Red. R. R. Cas. Redfleld's Leading American Rail- 
 way Cases. 
 
 Red. £ Big. Cas. B. £ N. Redfleld t Blgelow's 
 Leading Cases on Bills and Notes. 
 
 Redes. PI. Mitford's Chancery Pleading. 
 
 Redf. Redfleld's Surrogate Court Reports, N. Y. 
 
 Red}. Am. Railw. Cas. Redfleld's American Rail-, 
 way Cases. 
 
 Red}. Bailm. Redfleld on Carriers and Bailments. 
 
 Redf. L. Cas. Wills. Redfleld's Leading Cases on 
 Wills. 
 . Red}. Pr. Redfleld's Practice, New York. 
 
 Red}. R. Cas. Redfleld's American Railway Cases. 
 
 Redf. Railw. Redfleld on Railways. 
 
 Redf. Railw. Cas. Redfleld's American Railway 
 Cases. 
 
 Redf. Sur. or Redf. Surr. (N. 7.). Redfleld's New 
 York Surrogate Court Reports. 
 
 Redf. Wills. Redflefd's Leading Cases on Wills. 
 
 Redf. £ Big. L. Cas. Redfleld and Blgelow's Lead- 
 ing Cases on Notes and Bills. 
 
 /. or Redington. Redington's Reports, vols. 
 31-35 Maine. 
 
 Redm. Redman on Arbitrations and Awards. 
 
 Reed Fraud or Reed Lead. Cas. Reed's Leading 
 Cases In Law of Statute of Frauds. 
 
 Reese. Reporter, vols. 5, U Heiskell's Tennessee 
 Reports. 
 
 Reeve Des. Reeve on Descents. 
 
 Reeve Dom. R. Reeve on Domestic Relations. 
 
 Reeve, Eng. Law or Beeve if. E. L. or Reeve, 
 Hist. Eng. Law. Reeve's History of the English 
 Law. 
 
 Reeve Sh. Reeve on the Law of Shipping and 
 Navigation. 
 
 Reg. The Daily Register, New York City. 
 
 Reg. App. Registration Appeals. 
 
 Reg. Brev. Register of Writs. 
 
 Reg. Cas. Registration Cases. 
 
 Reg. Deb. (Gales). Register of Debates In Con- 
 gress, 1789-91 (Gales's). 
 
 Reg. Deb. (G. £ S.). Register of Debates In Con- 
 gress, 1S24-37 (Gales and Seaton's). 
 
 Reg. Gen. Regular Generales. 
 
 Reg. Jud. Registaem Judiciale. 
 
 Reg. Lib. Register Book. 
 
 Reg. Maj. Books of Regiam Majestatem. 
 
 Reg. Om. Brev. Registrum Omnium Brevium. 
 
 Reg. Orig. Registrum Originate. 
 
 Reg. PI. Regula Placitandi. 
 
 Reg. Writ. Register of Writs. 
 
 Reilly. Reilly's English Arbitration Cases. 
 
 Rem. Cr. Tr. Remarkable Criminal Trials. 
 
 Rem. Tr. Cummins & Dunphy's Remarkable Tri- 
 als. 
 
 Rem. Tr. No. Ch. Benson's Remarkable Trials and 
 Notorious Characters. 
 
 Remy. Remy's "Reports, vols. 145-154 Indiana; 
 also Indiana Appellate Court Reports. 
 
 Rep. Report; — Reports; — Reporter; — Repeal- 
 ed;— Wallace's The Reporters ;— Repertoire. Coke's 
 Reports, English King's Bench. 
 
 Rep. (1,%, etc.). Coke's English King's Bench 
 Reports. 
 
 Rep. Ass. Y. Clayton's Reports of Asslzc6 at 
 Yorke. 
 
 Rep. Cas. Eq. Gilbert's Chancery Reports. 
 
 Rep. Cas. Madr. Reports of Cases, Dewanny 
 Adawlut, Madras. 
 
 Rep. Cas. Pr. Reports of Cases of Practice 
 (Cooke's). 
 
 Rep. Ch. Reports in Chancery, English. 
 
 Rep. Ch. Pr. Reports on the Chancery Practice. 
 
 Rep. Com. Cas. Reports . of Commercial Cases, 
 Bengal. 
 
 Rep. Const, or Rep. Const. Ct. Reports of the Con- 
 stitutional Court, South Carolina (Treadway, Mill, 
 or Harper).
 
 ABBREVIATION 
 
 70 
 
 ABBREVIATION 
 
 Rep. Cr. L. Com. Reports of Criminal Law Com- 
 missioners. 
 
 Rep. de Jur. Repertoire de Jurisprudence, Paris. 
 
 Rep. de Jur. Com. Repertoire de Jurisprudence 
 Commerciale, Paris. 
 
 Rep. du Not. Repertoire du Notarise, Paris. 
 
 Rep. Ec. C. C. Repetitions Ecrites sur le Code 
 Civil. 
 
 Rep. Eq. Guilbert's Reports in Equity, English. 
 
 Rep. in Ch. Reports in Chancery, English. 
 
 Rep. (N. Y.). The Reporter, Washington and New 
 York. 
 
 Rep. Q. A. Report tempore Queen Anne, vol. 11 
 Modern. 
 
 Rep. Sel. Cas. Ch. or Rep. Sel. Cos. in Ch. Kel- 
 ynge's (W.) Reports, English Chancery. 
 
 Rep. t. Finch. Reports tempore Finch, English 
 Chancery. 
 
 Rep. t. Hard. Lee's Reports tempore Hardwicke, 
 English King's Bench Reports. 
 
 Rep. t. Holt. Reports tempore Holt, English 
 King's Bench;— Reports tempore Holt (English Cas- 
 es of Settlement). 
 
 Rep. t. O. Br. Carter's English Common Pleas 
 Reports tempore O. Bridgman. 
 
 Rep. t. Q. A. Reports tempore Queen Anne (11 
 Modern). 
 
 Rep. t. Talo. Reports tempore Talbot, English 
 Chancery. 
 
 Rep. (Wash.). The Reporter, Washington and 
 New York. 
 
 Rep. Yorke Ass. Clayton's Reports of Assizes at 
 Yorke. 
 
 Report or Reports. Coke's Reports, English King's 
 Bench. 
 
 Reptr. The Reporter, Boston, Mass. 
 
 Res. Cas. Reserved Cases. 
 
 Ret. Brev. Retorna Brevium. 
 
 Rettie. Rettie, Crawford & Melville's Scotch Ses- 
 sion Cases (4th Series). 
 
 Rev. Reversed. Revised. Revenue. 
 
 Rev. G. & C. Rep. Revenue, Civil, and Criminal 
 Reporter, Bengal. 
 
 Rev. Cas. Revenue Cases. 
 
 Rev. Crit. La Revue Critique, Montreal. 
 
 Rev. Crit. de Leg. Revue Critique de Legislation, 
 Paris. 
 
 Rev. de Leg. Revue de Legislation, Montreal. 
 
 Rev. Dr. Int. Revue de Droit International, Paris. 
 
 Rev. Dr. Leg. Revue de Droit Legislation, Paris. 
 
 Rev. Laws. Revised Laws. 
 
 Rev. Leg. La Revue Legale, Sorel, Quebec. 
 
 Rev. Ord. N. W. T. Revised Ordinances, North- 
 west Territories (Canada) 1888. 
 
 Rev. St. or Rev. Stat. Revised Statutes. 
 
 Reyn. Reynolds's Reports, vols. 40-42 Mississippi. 
 
 Reyn. Steph. Reynolds's Stephens on Evidence. 
 
 Rho. L. Rhodian Law. 
 
 Rice. Rice's Law Reports, South Carolina. 
 
 Rice Ch. Rice's Equity Reports, South Carolina. 
 
 Rice. Dig. Pat. Rice's Digest of Patent Office De- 
 cisions. 
 
 Rice Eq. Rice's South Carolina Equity Reports. 
 
 Rich. Richardson's South Carolina Law Reports ; 
 —Richardson's Reports, vols. 2-5 New Hampshire. 
 
 Rich. Cas. Ch. or Rich. Ch. Richardson's South 
 Carolina Equity Reports. 
 
 Rich. Ct. CI. Richardson's Court of Claims Re- 
 ports. 
 
 Rich. Eq. Richardson's South Carolina Equity 
 Reports. 
 
 Rich. Eq. Cas. Richardson's South Carolina Eq- 
 uity Reports. 
 
 Rich. Law (S. C). Richardson's South Carolina 
 Law Reports. 
 
 Rich. (N. H.). Richardson's Reports, New Hamp- 
 shire Reports, vols. 3-5. 
 
 Rich. N. S. Richardson's Reports, New Series, 
 South Carolina. 
 
 Rich. P. R. C. P. Richardson's Practical Register, 
 Common Pleas. 
 
 Rich. Pr. C. P. Richardson's Practice Common 
 Pleas. 
 
 Rich. Pr. K. B. Richardson's Practice in the 
 King's Bench. 
 
 Rich. Pr. Reg. Richardson's Practical Register. 
 English Common Pleas. 
 
 Rich. d- H. or Rich. <£• Hook. Richardson & Hook's 
 Street Railway Decisions. 
 
 Rich. & W. Richardson & Woodbury's Reports, 
 vol. 2 New Hampshire. 
 
 Ridg. Ridgeway's Reports tempore Hardwicke, 
 Chancery and King's Bench. 
 
 Ridg. Ap. or Ridg. App. Ridgeway's Irish Appeal 
 (or Parliamentary) Cases. 
 
 Ridg. Cas. Ridgeway's Reports tempore Hard- 
 wicke, Chancery and King's Bench. 
 
 Ridg. L. d- S. Ridgeway, Lapp and Schoales's Re- 
 ports (Irish Term Reports). 
 
 Rldg. P. C. or Rldg. Pari. Ridgeway's Irish Appeal 
 (or Parliamentary) Cases. 
 
 Ridg. Rep. or Ridg. St. Tr. Ridgeway's (Individu- 
 al) Reports of State Trials in Ireland. 
 
 Ridg. t. Hard, or Ridg. & Hard. Ridgeway's Re- 
 ports tempore Hardwicke, Chancery and King's 
 Bench. 
 
 Ridgew. Ridgeway (see Ridg.). 
 
 Ridley, Civil & Ecc. Law. Ridley's Civil and Ec- 
 clesiastical Law. 
 
 Rled. Riedell's Reports, vols. 68, 69 New Hamp- 
 shire. 
 
 Ril. Riley's South Carolina Law Reports;— Ri- 
 ley's Reports, vols. 37-42 West Virginia. 
 
 Ril. Ch. or Ril. Eq. Riley's South Carolina Chan- 
 cery Reports. 
 
 Ril. Harp. Riley's Edition of Harper's South 
 Carolina Reports. 
 
 Riley. Riley's South Carolina Chancery Reports ; 
 — Riley's South Carolina Law Reports ; — Riley's Re- 
 ports, vols. 37-42 West Virginia. 
 
 Riley Ch. or Riley Eq. Riley's Chancery Reports, 
 South Carolina. 
 
 Riner. Riner's Reports, vol. 2 Wyoming. 
 
 Rlv. Ann. Reg. Rivington's Annual Register. 
 
 Rob. Robinson's Virginia Reports; — Robinson'B 
 Louisiana Reports; — Robinson's Reports, vols. 2-9 
 and 17-23 Colorado Appeals; — Robertson's New York 
 Superior Court Reports ; — Robinson's English Ec- 
 clesiastical Reports; — Chr. Robinson's English Ad- 
 miralty Reports; — W. Robinson's English Admiralty 
 Reports ; — Robinson's Reports, English House of 
 Lords Scotch Appeals; — Robertson's Scotch Appeal 
 Cases; — Robinson's Reports, vol. 38 California; — 
 Robinson's Reports, vols. 1-4 Louisiana Annual ; — 
 Roberts's Reports, vols. 29-31 Louisiana Annual; — 
 Robards's Reports, vols. 12, 13 Missouri ; — Robards's 
 Conscript Cases, Texas ; — Chr. Robinson's Upper 
 Canada Reports; — J. L. Robinson's Upper Canada 
 Reports; — Robertson's Reports, vol. 1 Hawaii; — Rob- 
 inson's Reports, vol. 1 Nevada. 
 
 Rob. Adm. Chr. Robinson's English Admiralty 
 Reports. 
 
 Rob. Adm. Chr. Robinson's Reports, English Ad- 
 miralty. 
 
 Rob. Adm. & Pr. Roberts on Admiralty and Prize. 
 
 Rob. App. Robinson's Scotch Appeals, English 
 House of Lords. 
 
 Rob. (Cal.). Robinson's Reports, California. 
 
 Rob. Car. V. Robertson's History of the Reign of 
 the Emperor Charles V. 
 
 Rob. Cas. Robertson's Scotch Appeal Cases. 
 
 Rob. Chr. Chr. Robinson's English Admiralty Re- 
 ports. 
 
 Rob. Chr. Adm. Chr. Robinson's Reports, English 
 Admiralty. 
 
 Rob. Consc. Cas. or Rob. Conscr. Cas. Robard's 
 Conscript Cases, Texas. 
 
 Rob. Ecc. Robertson's Ecclesiastical Reports/Eng- 
 lish. 
 
 Rob. Ent. Robinson's Entries. 
 
 Rob. Eq. Roberts's Principles of Equity. 
 
 Rob. Fr. Roberts on Frauds. 
 
 Rob. Fr. Conv. Roberts on Fraudulent Convey- 
 ances. 
 
 Rob. Cavelk. Robinson on Gavelkind. 
 
 Rob. (Hawaiian). Robinson's Hawaiian Reports. 
 
 Rob. Jr. or Rob. Jun. William Robertson's English 
 Admiralty Reports. 
 
 Rob. Jus. Robinson's Justice of the Peace. 
 
 Rob. L. & W. Roberts, Learning & Wallis's County 
 Court Reports.
 
 ABBREVIATION 
 
 71 
 
 ABBREVIATION 
 
 Rob. (La.). Robinson's Reports, Louisiana. 
 Rol>. (La. Ann.). Robinson's Reports, Louisiana 
 Annual, vols. 1-4. 
 
 Rob. Mar. (N. Y.). Robertson & Jacob's New York 
 Marine Court Rf-ports. 
 Hob. (Mo.). Robard's Reports, Missouri. 
 Rob. (N. Y.). Robertson's Reports, New York City 
 Superior Court Reports, vols. 24-30. 
 
 Rob. (Nev.). Robinson's Reports, Nevada Report*, 
 vol. 1. 
 Rob. Pr. Robinson's Practice. 
 
 Rob. S. I. Robertson's Sandwich Island (Hawaiian) 
 Reports 
 
 Rob. Sc. App. Robinson's Scotch Appeals, English 
 House of Lords. 
 
 Rob. Sr. Ct. Robertson's New York Superior Court 
 Reports. 
 Rob. St. Fr. Roberts on the Statute of Frauds. 
 Rob. U. C. Robinson's Reports, Upper Canada. 
 Rob. (Va.). Robinson's Reports, Virginia. 
 Rob. Wills. Roberts on Wills. 
 
 Rob. Wm. or Rob. Wm. Adm, Wm. Robinson's Re- 
 ports, English Admiralty. 
 
 Rob. & J. Robard and Jackson's Reports, Texas 
 Reports, vols. 26-27. 
 
 Robards. Robards's Reports, vols. 12, 13 Missouri ; 
 — Robards's Texas Conscript Cases. 
 
 Robards £ Javlcson. Robards & Jackson's Reports, 
 vols. 26-27 Texas. 
 
 Robb or Robb Pat. Cos. Robb's United States Pat- 
 ent Cases. 
 
 Robert. Robertson's Scotch Appeals, English 
 House of Lords. 
 
 Roberts. Roberts' Reports, vols. 29-31 Louisiana 
 Annual. 
 
 ■tson. Robertson's Scotch Appeal Cases ; — 
 Robertson's New York Superior Court Reports ; — 
 Robertson's New York Marine Court Reports ; — 
 Robertson's English Ecclesiastical Reports ; — Robert- 
 eon's Hawaiian Reports. See, also, Rob. 
 Robin. App. Robinson's Scotch Appeal Cases. 
 Robinson. Chr. Robinson's English Admiralty Re- 
 ports ;— W. Robinson's English Admiralty Reports ; 
 —Robinson's Virginia Reports :— Robinson's Louisi- 
 ana Reports ; — Robinson's Scotch Appeal Cases ; — 
 Robinson's Reports, vol. 38 California ;— Chr. Rob- 
 inson's Reports, Upper Canada ; — J. L. Robinson's 
 Reports, Upper Canada ; — Robinson's Reports, Colo- 
 rado ; — Robinson's Reports, vol. 1 Nevada. 
 
 Robs. Bankr. Robson's Bankrupt Practice; — Rob- 
 ertson's Handbook of Bankers' Law. 
 Robt. Robert ; — Robertson. 
 
 Robt. (N. Y.). Robertson's Reports, New York 
 City Superior Court Reports, vols. 24-30. 
 Roc. Ins. Roccus on Insurance. 
 Roc. Mar. L. Roccus on Maritime Law. 
 Roc. £ H. Bank. Roche and Hazlitt on Bankruptcy. 
 Roccus, Ins. Roccus on Insurance. 
 Rockw. Sp. £ Mex. L. Rockwell's Spanish and Mex- 
 ican Law. 
 
 Rodm. (Ky.). Rodman's Kentucky Reporta, vols. 
 78-82. 
 Rodman. Rodman's Reports, vols. 78-82 Kentucky. 
 Roclk. Man. Roelker's Manual for Notaries and 
 Bankers. 
 
 Rog. Ecc. or Rog. Ecc. Law. Rogers'3 Ecclesiasti- 
 cal Law. 
 Rog. Rec. Rogers's City Hall Recorder, New York. 
 Rogers. Rogers's Reports, vols. 47-51 Louisiana 
 Annual. 
 Rol. Rolle's English King's Bench Reports. 
 Roll. Roll of the Term ;— Rolle's English King's 
 Bench Reports. 
 Rolle. Rolle's Reports, English King's Bench. 
 Rolle Abr. Rolle's Abridgment. 
 Rolle R. Rolle's English King's Bench Reports. 
 Rolls Ct. Rep. Rolls Court Reports, English. 
 Rom. Romilly's Notes of Cases, English Chancery. 
 Rom. Cr. L. Romilly's Criminal Law. 
 Rom. Law. Mackeldy's Handbook of the Roman 
 Law. 
 Root. Root's Reports, Connecticut. 
 Rop. H. £ W. or Rop. Husb. £ Wife. Roper on Hus- 
 band and Wife. 
 Rop. Leg. Roper on Legacies. 
 
 Rop. Prop. Roper on Property. 
 
 Rop. Rev. Roper on Revocation of Wills. 
 
 Int. St. L. Rorer on Inter-Stai Law. 
 Rorer Jud. Sales. Rorer on Judicial Sales. 
 Rose. Adm. Roscoe's Admiralty Jurisdiction ind 
 Practice. 
 Rose. Bills. Roscoe on Bills and Notes. 
 
 Rose. Civ. Ev. Roscoe on Civil Evidence. 
 Rose. Cr. Ev. or Ruse. Crim. Ev. Roscoe on Crim- 
 inal Evidence. 
 
 Rose. Jur. Roscoe's Jurist, London. 
 
 Rose. N. P. Roscoe on N'isi Prlus Evidence. 
 
 Rose. PI. Roscoe on Pleading. 
 
 Rose. R. Ac. or Rose. Real Act. Roscoe on Real Ac- 
 tions. 
 
 Rose. St. D. Roscoe on Stamp Duties. 
 
 Rose or Rose B. C. Rose's Reports, English Bank- 
 ruptcy. 
 
 Rose Notes. Rose's Notes on United States Re- 
 ports. 
 
 Rose W. C. Rose Will Casp, New York. 
 
 Ross, Conv. Ross's Lectures on Conveyancing, 
 etc., Scotland. 
 
 Ross Ldg. Cos. Ross's Leading Cases on Commer- 
 cial Law. 
 
 Ross Lead. Cos. Ross's Leading Cases on Com- 
 mercial Law. 
 
 Ross V. £ P. Ross on Vendors and Purchasers. 
 
 Rot. Chart. Rotulus Chartarum. 
 
 Rot. Cur. Reg. Rotull Curiae Regis. 
 
 Rot. Flor. Rota Florentine (Reports of the Su- 
 preme Court, or Rota, of Florence). 
 
 Rot. Pari. Rotulae Parliamentarian 
 
 Rouse Cop. Rouse's Copyhold Enfranchisement 
 Manual. 
 
 Rouse Pr. Mort. Rouse on Precedents of Mort- 
 gages. 
 
 Rowe. Rowe's Reports, English Parliamentary 
 and Military Cases. 
 
 Rowe Rep. Rowe's Reports (Irish). 
 
 Rowe Sci. Jur. Rowe's Scintilla Juris. 
 
 Rowell. Rowell's Contested Election Cases, U. S. 
 House of Representatives, 1889-1891 ;— Rowell's Re- 
 ports, vols. 45-52 Vermont. 
 
 Roy. Dig. Royall's Digtst Virginia Reports. 
 
 Royle Stock Sh. Royle on the Law of Stock 
 Shares, etc. 
 
 Rt. Law Rcpts. Rent Law Reports, India. 
 
 Rub. Rubric. 
 
 Rucker. Rucker's Reports, vols. 43-46 West Vir- 
 ginia. 
 
 Ruff, or Ruff . £ H. Ruffln & Hawks's North Caro- 
 lina Reports. 
 
 Ruffh. or Ruffh. St. Ruffbead's Statutes-at-Large 
 of England. 
 
 Rules Sup. Ct. Rules of the Supreme Court. 
 
 Runn. Runnell's Reports, Iowa. 
 
 Runn. Stat. Runnington's Statutes-at-Large of 
 England. 
 
 Runnells. Runnells's Reports, vols. 38, 56 Iowa. 
 
 Rus. Russell. 
 
 Rush. Rushworth's Historical Collection. 
 
 Russ. Russell's Reports, English Chancery. 
 
 Russ. Arb. Russell on Arbitrators. 
 
 Russ. Cr. or Russ. Crimes. Russell on Crimes and 
 Misdemeanors. 
 
 Russ. Elect. Cos. Russell's Election Cases. Nova 
 Scotia ; — Russell's Election Cases, Massachusetts. 
 
 Russ. Eq. Rep. Russell's Equity Decisions, Nova 
 Scotia. 
 
 Russ. Merc. Ag. Russell on Mercantile Agency. 
 
 Russ. N. Sc. Russell's Equity Cfl 
 
 Russ. t. Eld. Russell's English Chancery Reports 
 r Blden. 
 
 Russ. £ Ches. Russell and Chesley's Reports, Nova 
 Scotia. 
 
 Russ. £ Ches. Eq. Russell and Chesley's Equity 
 Reports. Nova Scotia. 
 
 Russ. £ Geld. Russell and Geldert's Reports, Nova 
 Scotia. 
 
 Russ. £ M. Russell and Mylne's Reports, English 
 Chancery. 
 
 £ R. or Russ. £ Ry. Russell and Ryan's 
 Crown Cases Reserved, English.
 
 ABBREVIATION 
 
 72 
 
 ABBREVIATION 
 
 Rutg. Cas. or Rutger Cas. Rutger-Waddington 
 Case, New York City, 1784 (First of New York Re- 
 ports). 
 
 uth. Inst, or Ruth. Nat. L. Rutherford's Institutes 
 of Natural Law. 
 
 Ry. Cas. Reports of Railway Cases. 
 
 Ry. F. Rymer's Foedera, Conventiones, etc 
 
 Ry. Med. Jur. Ryau's Medical Jurisprudence. 
 
 Ry. & Can. Cas. Railway and Canal Cases, Eng- 
 land. 
 
 Ry. & Can. Traf. Ca. Railway and Canal Traffic 
 Cases. 
 
 Ry. & Corp. Law Jour. Railway and Corporation 
 Law Journal. 
 
 Ry. & M. Ryan & Moody's Nisi Prius Reports, 
 English. 
 
 Ry. <£■ M. C. C. Ryan and Moody's Crown Cases 
 Reserved, English. 
 
 Ry. & M. N. P. Ryan and Moody's Nisi Prius Re- 
 ports, English. 
 
 Rymer. Rymer's Fo3dera. 
 
 S. Shaw, Dunlop & Bell's Scotch Court of Ses- 
 sion Reports (1st Series) ;— Shaw's Scotch House of 
 Lords Appeal Cases ;— Southeastern Reporter (prop- 
 erly cited S. E.) ;— Southwestern Reporter (properly 
 cited S. W.);— New York Supplement;— Supreme 
 Court Reporter; — Section. 
 
 S. A. L. R. South Australian Law Reports. 
 
 S. App. Shaw's Appeal Cases, Scotland. 
 
 S. Aust. L. R. South Australian Law Reports. 
 
 S. B. Upper Bench, or Supreme Bench. 
 
 S. C. South Carolina ;— South Carolina Reports, 
 New Series ;— Same Case ;— Superior Court;— Su- 
 preme Court;— Sessions Cases; — Samuel Carter (see 
 Orlando Bridgman) ;— Senatus-Consulti. 
 
 S. C. A. Supreme and Exchequer Courts Act, Can- 
 ada. 
 
 S.C.Bar Assn. South Carolina Bar Association. 
 
 S. C. C. Select Chancery Cases (part 3 of Cases 
 in Chancery) ;— Small Cause Court, India. 
 
 S. C. Dig. Cassell's Supreme Court Digest, Can- 
 ada. 
 
 S. C. E. Select Cases relating to Evidence. 
 
 S.C.R. South Carolina Reports, New Series; — 
 Harper's South Carolina Reports ;— Supreme Court 
 Reports; — Supreme Court Rules; — Supreme Court 
 of Canada Reports. 
 
 S. C. Rep. Supreme Court Reports. 
 
 S. Car. South Carolina; — South Carolina Reports, 
 New Series. 
 
 S. Ct. Supreme Court Reporter. 
 
 8. D. South Dakota;— South Dakota Reports. 
 
 S. D. A. Sudder Dewanny Adawlut Reports, India. 
 
 S. Dak. South Dakota Reports. 
 
 S. D. & B. Shaw, Dunlop & Bell's Scotch Court of 
 Session Reports (1st Series). 
 
 S. D. & B. Sup. Shaw, Dunlop & Bell's Supple- 
 ment, containing House of Lords Decisions. 
 
 S. E. or S. E. R. or S. E. Rep. Southeastern Re- 
 porter. 
 
 S. F. A. Sudder Foujdaree Adawlut Reports, In- 
 dia. 
 
 S. J. Solicitors' Journal. 
 
 S. Just. Shaw's Justiciary Cases, Scotch. 
 
 S. L. Session Law;— Solicitor at Law; — Statute 
 Law. 
 
 S. L. C. Smith's Leading Cases. 
 
 S. L. C. App. Stuart's Lower Canada Appeal Cases. 
 
 S. L. D. ' Sudder Dewanny Adawlut Reports, India. 
 
 S. L. Ev. Select Laws relating to Evidence. 
 
 S. L. J. Scottish Law Journal, Edinburgh. 
 
 S. L. R. Scottish Law Reporter, Edinburgh ; — 
 Southern Law Review, St. Louis. 
 
 S. P. Same Point; — Same Principle. 
 
 S. R. State Reporter, New York. 
 
 S. S. Synopsis Series of U. S. Treasury Decisions. 
 
 S. S. C. Sandford's New York City Superior Court 
 Reports. 
 
 S. T. State Trials. 
 
 S. T. D. Synopsis Treasurer's Decisions. 
 
 S. Teind. or S. Teinds. Shaw's Teinds Cases, Scotch 
 Courts. 
 
 S. V. A. R. Stuart's Vice-Admiralty Reports, Que- 
 bec. 
 
 S. W. Southwestern;— Southwestern Reporter. 
 
 S. W. L. J. Southwestern Law Journal, Nashville, 
 Tenn. 
 
 S. W. Rep. Southwestern Reporter (commonly 
 cited S. W.). 
 
 S. & B. Smith and Batty's Reports, Irish King's 
 Bench. 
 
 S. & C. Saunders & Cole's English Bail Court Re- 
 ports ; — Swan & Critchiield, Revised Statutes, Ohio. 
 
 S. & D. Shaw, Dunlop & Bell's Scotch Court of 
 Session Reports (1st series). 
 
 S. & G. Smale & Gii'fard, English. 
 
 S. & L. Schoales and Lefroy's Reports, Irish 
 Chancery. 
 
 S. <£• M. Shaw & Maclean's Appeal Cases, House 
 of Lords; — Smedes & Marshall's Mississippi Reports. 
 
 S. & M'L. Shaw and Maclean's Appeal Cases, Eng- 
 lish House of Lords. 
 
 S. & Mar. Smedes and Marshall's Reports, Mis- 
 sissippi Reports, vols. 9-22. 
 
 S. & M. Ch. or S. & Mar. Ch. Smedes and Marshall's 
 Chancery Reports, Mississippi. 
 
 S. & R. Sergeant and Rawle's Reports, Pennsyl- 
 vania. 
 
 S. & S. Sausse & Scully's Irish Rolls Court Re- 
 ports ; — Simons & Stuart, English Vice-Chancellors' 
 Reports;— Swan & Sayler, Revised Statutes of Ohio. 
 
 S. & Sc. Sausse and Scully's Reports, Irish Chan- 
 cery. 
 
 S. & Sm. Searle and Smith's Reports, English 
 Probate and Divorce Cases. 
 
 S. & T. Swabey and Tristram's Reports, English 
 Probate and Divorce Cases. 
 
 Sal. Salinger's Reports, vols. 90-117 Iowa. 
 
 Salk. Salkeld's Reports, English Courts. 
 
 Salm. Aor. or Salm. St. R. Salmon's Abridgment of 
 State Trials. 
 
 San Fr. L, J. San Francisco Law Journal, Cali- 
 fornia. 
 
 San. U. Sanders on Uses and Trusts. 
 
 Sand. Sandford's New York Superior Court Re- 
 ports. 
 
 Sand. Ch. Sandford's New York Chancery Re- 
 ports. 
 
 Sand. Eg. Sands's Suit In Equity. 
 
 Sand. Essays. Sanders's Essays. 
 
 Sand. Inst. Sandars's Institutes of Justinian. 
 
 Sand. I. Rep. Sandwich Island (Hawaiian) Re- 
 ports. 
 
 Sand. Jus. or Bandars, Just. Inst. Sandars's Edi- 
 tion of Justinian's Institutes. 
 
 Sand. U. & T. Sanders on Uses and Trusts. 
 
 Sandf. Sandford's New York Superior Court Re- 
 ports. 
 
 Sandf. Ch. Sandford's Chancery Reports, New 
 York. 
 
 Sandf. Ent. Sandford on Entails. 
 
 Sandl. St. Pap. Sandler's State Papers. 
 
 Sanf. (Ala.). Sanford's Reports, Alabama. 
 
 Sant. de Assec. Santerna de Assecurationibus. 
 
 Sar. Ch. Sen. Saratoga Chancery Sentinel. 
 
 Sau. & Sc. Sausse & Scully's Irish Rolls Court 
 Reports. 
 
 Sauls. Saulsbury's Reports, vols. 5-6 Delaware. 
 
 Saund. Saunders's Reports, English King's Bench. 
 
 Saund. Bank. Pr. Saunders's Bankrupt Practice. 
 
 Saund. Neg. Saunders on the Law of Negligence. 
 
 Saund. PI. Saunders on Civil Pleading. 
 
 Saund. PI. & Ev. Saunders's Pleading and Evi- 
 dence. 
 
 Saund. & C. Saunders and Cole's Reports, Eng- 
 lish Bail Court. 
 
 Saund. & Mac. Saunders & Macrae's English 
 County Court Cases. 
 
 Sausse & Sc. Sausse & Scully's Irish Rolls Court 
 Reports. 
 
 Sav. Savile's English Common Pleas Reports. 
 
 Sav. Dr. Rom. Savigny, Droit Romain. 
 
 Sav. His. Rom. L. Savigny's History of the Ro- 
 man Law. 
 
 Sav. Ool. Savigny on Obligations. 
 
 Sav. Priv. Trial of the Savannah Privateers. 
 
 Sav. Priv. Int. L. Savigny on Private Internation- 
 al Law. 
 
 Sav. Syst. Savigny, System des Heutigen Rom- 
 Ischen Richts.
 
 ABBREVIATION 
 
 73 
 
 ABBREVIATION 
 
 Saw. or Savoy. Sawyer's United States Circuit 
 Court Reports. 
 
 Sao;, or Saxt. or Saxt. Ch. Saxton's Chancery Re- 
 ports, New Jersey Equity Reports, vol. 1. 
 
 Sayer's Reports, English King's Bench. 
 Say. Costs. Sayer on Costs. 
 Say. Pr. Sayle's Practic! in Texas. 
 Sayer. Sayer's English King's Bench Reports. 
 Sc. Scilicet (that is to say);— Scott's Reports, 
 English Common I'lcas ;— Scotch;— Scammon's Re- 
 ports, vols. 2-5 Illinois ;— Liber Rubeus Scaccarli, 
 Scottish. 
 
 ir. Scottish Jurist, Edinburgh. 
 Ei. J. Scottish Law Journal, Glasgow. 
 Sc. L. M. Scottish Law Magazine, Edinburgh. 
 Sc. L. R. Scottish Law Reporter, Edinburgh. 
 Sc. N. R. Scott's New Reports. 
 Sc. Sess. Cas. Scotch Court of Session Cases. 
 Sc. & Div. App. Scotch and Divorce Appeals (Law 
 Reports). 
 Srac. or Scaccaria Curia. Court of Exchequer. 
 Scam. Scammon's Reports, vols. 2-5 Illinois. 
 Scan. Mag. Scandalum Magnatum. 
 Sell. & Lcf. Schoales and Lei'roy's Reports, Irish 
 Chancery. 
 
 Scli. d Lef. Schoales & Lefroy's Irish Chancery 
 Reports. 
 
 Schalck or Schalk (Jam. J. Schalck's Jamaica Re- 
 ports. 
 Scheiff. Pr. Scheiffer's Practice. 
 Schcr. Scherer, New York Miscellaneous Reports. 
 Schm. C. L. or Sclim. Civil Law. Schmidt's Civil 
 Law of Spain and Mexico. 
 Schm. L. J. Schmidt's Law Journal, New Orleans. 
 Schomberg, Mar. Laws Rhodes. Schomberg, Trea- 
 tise on the Maritime Laws of Rhodes. 
 
 Schoul. ISailm. Schouler on Bailments, including 
 Carriers. 
 Schoul. Bom. Rel. Schouler on Domestic Relations. 
 Schoul. Per. Pr. or Shouler, Pers. Prop. Schouler 
 on Personal Property. 
 Schouler, Wills. Schouler on Wills. 
 Schuyl. Leg. Rec. Schuylkill Legal Record, Potts- 
 vine, Pa. 
 Sci. fa. Scire facias. 
 
 Set. fa. ad dis. deb. Scire facias ad disprobandum 
 debitum. 
 Scil. Scilicet, That is to say. 
 Sco. Scott's Reports, English Common Pleas. 
 Sco. Costs. Scott on Costs. 
 Sco. Int. Scott's Intestate Laws. 
 Sco. Nat. Scott on Naturalization of Aliens. 
 Sco. N. R. Scott's New Reports, English Common 
 Pleas. 
 
 Sco. & J. Tel. Scott and Jarnigan on the Law of 
 Telegraphs. 
 Scot. Scotland ;— Scottish. 
 Scot. Jur. Scottish Jurist, Edinburgh. 
 Scot. L. J. Scottish Law Journal, Glasgow. 
 Scot. L. M. Scottish Law Magazine, Edinburgh. 
 Scot. L. R. Scottish Law Reporter, Edinburgh ;— 
 Scottish Law Review, Glasgow. 
 Scot L. T. Scot Law Times, Edinburgh. 
 Scott. Scott's English Common Pleas Reports ;— 
 Scott's New York Civil Procedure. 
 
 Scott J. Reporter, English Common Bench Re- 
 ports. 
 
 Scott N. R. Scott's New Reports, English Common 
 Pleas. 
 Scr. L. T. Scranton Law Times, Pennsylvania. 
 Scrat. Life As. Scratchley on Life Assurance. 
 Scrib. Dow. Scribner on Dower. 
 Scriv. Cop. Scriven on Copyholds. 
 Scab. V. & P. Seaborne on Vendors and Purchas- 
 ers. 
 
 Searle & Sm. Scarle and Smith's Reports, English 
 Probate and Divorce. 
 Scat. F. Ch. Seaton's Forms In Chancery. 
 Scb. T. M. or Seb. Trade-Marks. Sebastian on 
 Trademarks. 
 Sec. Section. 
 
 Sec. leg. Secundum legum (according to law). 
 Sec. reg. Secundum regulam (according to rule). 
 Seed. pt. Edw. III. Part 3 of the Year Books. 
 Seed. pt. II. VI. Part 8 of the Year Books. 
 
 Sedg. L. Cas. Sedgwick's Leading Casi on the 
 re of Damages ;— Sedgwick 'e L « s on 
 
 i'roperty. 
 1/eas. D. Sedgwick on the Measure ... 
 ages. 
 
 Sedg. St. L. or Sedg. St. d Const. Law. Sedgwick 
 on Statutory and Constitutional Law. 
 
 .. or Seign. Rep. Seigniorial Quebec. 
 
 Sel. Cos. Select Cases In Chancery. 
 Sel. Cas. A. S. Law. Select Cases in Ai^lo-Saxon 
 Law. 
 
 • <is. Ch. Select Cases in Chancery (part 3 of 
 Cases in Chancery). 
 
 .1. Select Cases, Sudder Dewanny 
 Adawlut, India. 
 
 Cat.Ev. Select Cases in Eviden* . 
 ■is.N.F. Select Cases, Newfoundland Courts. 
 Sel. Cas. N. W. P. Selected Cases, Northwest Prov- 
 inces, India. 
 Sel. Cas. N. Y. Yates's Select Cases. New York. 
 Sel. Cas. t. Br. Cooper's Select Cases tempore 
 Brougham. 
 
 Bel. Cas. t. King. Select Cases In Chancery tem- 
 pore King. 
 
 Sel. Cas. t. Nap. (Drury's) Select Cases tempore 
 Napier, Irish Chancery. 
 
 Sel. Cas. with Opin. Select Cases with Opinions, 
 by a Solicitor. 
 Sel. Ch. Cas. Select Cases in Chancery, English. 
 Sel. Dec. Bomb. Selected Decisions, Sudder De- 
 wanny Adawlut, Bombay. 
 
 Sel. Dec. Mad. or Sel. Dec. Madr. Selected Decrees, 
 Suder Udawlut, Madras. 
 Sel. L. Cas. Select Law Cases. 
 Sel. Pr. Sellon's Practice. 
 
 Seld. or Seld. (N. Y.). Selden's Reports, New York 
 Ct. of Appeals Reports, vols. 5-10. 
 
 Seld. Notes. Selden's Notes of Cases, New York 
 Court of Appeals. 
 Seld. Tit. Hon, Selden's Titles of Honor. 
 Selden. Selden's Reports, New York Court of 
 Appeals. 
 Self. Tr. Selfridge's Trial. 
 
 Sell. Pr. Sellon's Practice in the King's Bench. 
 Selw. N. P. Selwin's Nisi Prius. 
 Selw. & Barn. The First Part of Barnewall & 
 Alderson's English King's Bench Reports. 
 Serg. Attach. Sergeant on Attachment Law, Pa. 
 Serg. Const. L. Sergeant on Constitutional Law. 
 Serg. Land L. or Serg. Land Laws Pa. Sergeant on 
 the Land Laws of Pennsylvania. 
 
 Serg. Mech. L. L. Sergeant on Mechanics' Lien 
 Law. 
 
 Serg. & Lowb. Rep. English Common Law Re- 
 ports, American reprints edited by Sergeant & Low- 
 ber. 
 
 Serg. & R. or Ser<7. & Rawle. Sergeant & Rawle's 
 Pennsylvania Reports. 
 
 Sess. Cas. Sessions Cases (English King's Bench 
 Reports) ;— Scotch Court of Session Cases. 
 
 Sess. Cas. Sc. Session Cases, Scotch Court of Ses- 
 sion. 
 
 Sess. Pap. C. C. C. Session Papers, Central Crim- 
 inal Court. 
 Sess. Pap. O. B. Session Papers. Old Bailey. 
 Set. Cas. English Settlement and Removal Cases 
 (Burrow's Settlement Cases). 
 
 Set. Dec. or Set. F. Dec. Seton's Forms of Equity 
 Decrees. 
 Sett. Cas. Settlement Cases. 
 
 Sett, cf Rem. Cas. English Settlement 4 Removal 
 Cases (Burrow's Settlement Ca^ 
 Sev. Sevestre's Reports, Calcutta. 
 Sev. H. C. Sevestre's High Court Reports, Bengal. 
 Sev. 8. D. A. Sevestre's Sudder Dewanny Adawlut 
 Reports, Bengal. 
 Sewell, Sheriffs. Sewell on the Law of Sheriffs. 
 Sh. Shower's English Parliamentary Ca 
 Shower's English King's Bench Reports ;— Shepley's 
 Reports, vols. 13-18 and 81-30 Maine ;— Shaw's Scotch 
 Appeal Cases ;— Shaw's, etc., Decisions in the Scotch 
 Court of Session (1st Series) ;— Shaw's Scotch Jus- 
 ticiary Cases ;— Shaw's Scotch Teind Court Reports ; 
 — G. B. Shaw's Reports, vols. 10, 11 Vermont ;— 
 W. G. Shaw's Reports, vols. 30-35 Vermont ;— Shir-
 
 ABBREVIATION 
 
 74 
 
 ABBREVIATION 
 
 ley's Reports, vols. 49-55 New Hampshire ;— Sheldon's 
 Buffalo, New York, Superior Court Reports;— Shep- 
 herd's Reports, Alabama ;— Shipp's Reports, vols. 66, 
 67 North Carolina ;— Shand's Reports, vols. 11-44 
 South Carolina ;— Shadforth's Reserved Judgments, 
 Victoria. 
 
 Sh. App. Shaw's Appeal Cases, English House of 
 Lords, Appeals from Scotland. 
 
 Sh. Crim. Cas. Shaw's Criminal Cases (Justiciary 
 Court). 
 
 Sh. Dig. Shaw's Digest of Decisions, Scotland. 
 
 Sh. Jus. Shaw's Justiciary Cases, Scotland. 
 
 Sh. W. & C. Shaw, Wilson and Courtnay's Re- 
 ports, English House of Lords, Scotch Appeals (Wil- 
 son and Shaw's Reports). 
 
 Sh. & Dunl. Shaw and Dunlop's Reports, First 
 Series, Scotch Court of Session. 
 
 Sh. t£ Macl. Shaw and Maclean's Appeal Cases, 
 English House of Lords. 
 
 Shad. Shadford's Victoria Reports. 
 
 Shan. Shannon's Tennessee Cases. 
 
 Shand. Shand's Reports, South Carolina. 
 
 Shand Pr. Shand's Practice, Court of Session. 
 
 Sharp. Sharpstein's Digest of Life and Accident 
 Insurance Cases. 
 
 Shars. Bl. Comm. Sharswood's Blackstone's Com- 
 mentaries. 
 
 Shars. Tab.fia. Sharswood's Table of Cases, Con- 
 necticut. 
 
 Sharsw. Bla. Com. Sharswood's Blackstone's Com- 
 mentaries. 
 
 Sharsw. Comm. Law. Sharswood on Commercial 
 Law. 
 
 Sharsw. Law Lee. " Sharswood's Law Lectures. 
 
 Sharsw. Leg. Eth. Sharswood's Legal Ethics. 
 
 Sharsw. & B. R. P. Cos. Sharswood & Budd Real 
 Property Cases. 
 
 Shaw. Shaw's Reports, First Series, Scotch Court 
 of SesTion. 
 
 Shaw. Shaw's Scotch Appeal Cases ;— Shaw's etc., 
 Decisions in the Scotch Court of Session (1st Se- 
 ries) ; — Shaw's Scotch Justiciary Cases ; — Shaw's 
 Scotch Teind Court Reports ;— G. B. Shaw's Reports, 
 vols. 10, 11 Vermont ; — W. G. Shaw's Reports, vols. 
 30-35 Vermont. 
 
 Shaw App. Shaw's Appeal Cases, English House 
 of Lords, Appeals from Scotland. 
 
 Shaw, Dec. Shaw's, etc., Decisions in the Scotch 
 Court of Session (1st Series). 
 
 Shaw Dig. Shaw's Digest of Decisions, Scotch 
 Courts. 
 
 Shaw, Dunl. & B. Shaw, Dunlop & Bell's (1st Se- 
 ries) Scotch Session Cases. 
 
 Shaw (G.B.). G. B. Shaw's Reports, vols. 10, 11 
 Vermont. 
 
 Shaio, H. L. Shaw's Scotch Appeal Cases, House 
 of Lords. 
 
 Shaw Jus. Shaw's (John) Scotch Justiciary Cases. 
 
 Shaw T. Cas. Shaw's Scotch Teind Court Reports. 
 
 Shaw (Vt.). Shaw's Reports, Vermont. 
 
 Shaw (W. C). W. G. Shaw's Reports, 30-35 Ver- 
 mont. 
 
 Shaw, W. £ C. Shaw, Wilson and Courtnay's Re- 
 ports, English House of Lords, Scotch Appeals (Wil- 
 son and Shaw's Reports). 
 
 Shaw & Dunl. Shaw and Dunlop's Reports, First 
 Series, Scotch Court of Session. 
 
 Shaw & Macl. Shaw and Maclean's Scotch Ap- 
 peal Cases, English House of Lords. 
 
 Shearm. & Bed. Neg. Shearman and Redfleld on 
 the Law of Negligence. 
 
 Shel. Sheldon (see Sheld.). 
 
 Shel. Co. Shelley's Case in vol. 1 Coke's Reports. 
 
 Sheld. or Sheldon. Sheldon's Reports, Superior 
 Court of Buffalo, New York. 
 
 Shelf. Copy. Shelford on Copyholds. 
 
 Shelf. J. S. Co. Shelford on Joint Stock Compa- 
 nies. 
 
 Shelf. Lun. Shelford on Lunacy. 
 
 Shelf. M. & D. or Shelf. Mar. & Div. Shelford on 
 Marriage and Divorce. 
 
 Shelf. Mort. Shelford on Mortmain. 
 
 Shelf. Railw. Shelford on Railways. 
 
 Shelf. R. Pr. Shelford's Real Property Statutes. 
 
 Shep. Shepley's Reports, vols. 13-18 and 21-30 
 Maine ; — Shepherd's Reports, Alabama. 
 
 Shep. Abr. Sheppard's Abridgment. 
 
 Shep. Sel. Cas. Shepherd's Select Cases, Alabama. 
 
 Shep. Touch. Sheppard's Touchstone. 
 
 Shepl. Shepley's Reports, Maine. 
 
 Shepp. Abr. Sheppard's Abridgment. 
 
 Shepp. Act. Sheppard's Action upon the Case. 
 
 Shepp. Cas. Sheppard's* Cases on Slander. 
 
 Shepp. Touch. Sheppard's Touchstone. 
 
 Slier. Ct. Rep. Sheriff Court Reports, Scotland;— 
 Sheriff Court Reporter. 
 
 Shiel. Shiel's Reports, Cape Colony. 
 
 Ship. Gaz. Shipping Gazette, London. 
 
 Shipp. Shipp's Reports, North Carolina. 
 
 Shirl. Shirley's Reports, New Hampshire. 
 
 Shirl. L. C. Shirley's Leading Crown Cases. 
 
 Shortt Copy. Shortt on Copyrights. 
 
 Show. Shower's English Parliamentary Cases;— 
 Shower's English King's Bench Reports. 
 
 Show. K. B. Shower's English King's Bench Re- 
 ports. 
 
 Show. P. C. Shower's English Parliamentary 
 Cases. 
 
 Sick. Sickels's Reports, N. Y. Court of Appeals 
 Reports. 
 
 Sick. Min. Dec. or Sick. Min. Laws & D. Sickels's 
 Mining Laws and Decisions. 
 
 Sick. Op. Sickels's Opinions of the New York At- 
 torneys-General. 
 
 Sid. Siderfin's Reports, English King's Bench. 
 
 Sid. Gov. Sidney on Government. 
 
 Sieye. Sieye Traite sur l'Adultere. 
 
 Silv. Silvernail's Unreported Cases, New York 
 Court of Appeals ; — Unreported Cases, New York 
 Supreme Court ; — Criminal Reports, New York. 
 
 Silv. Cit. Silvernail's New York Citations. 
 
 Silvern. N. Y. Silvernail's New York Court of 
 Appeals. 
 
 Silvern. N. Y. Sup. Ct. Silvernail's New York Su- 
 preme Court. 
 
 Sim. Simons's English Vice-Chancery Reports ; 
 — Simmons's Reports, vols. 99, 100 Wisconsin. 
 
 Sim. Dig. Simond's Digest of Patent Office Deci- 
 sions. 
 
 Sim. Int. Simon on the Law of Interpleader. 
 
 Sim. N. S. Simons's English Vice-Chancery Re- 
 ports, New Series. 
 
 Sim. Pat. L. Simond's Manual of Patent Law. 
 
 Sim. Pr. Ct. M. Simmon's Practice of Courts Mar- 
 tial. 
 
 Sim. R. A. Simon's Law relating to Railway Ac- 
 cidents. 
 
 Sim. & C. Simmons & Conover's Reports, vols. 
 99, 100 Wisconsin. 
 
 Sim. & S. or Sim. & Stu. Simon and Stuart's Eng- 
 lish Chancery Reports. 
 
 Sinclair. Sinclair's Manuscript Decisions, Scotch 
 Session Cases. 
 
 Sir T. J. Sir Thomas Jones's Reports. 
 
 Six Circ. or Six Circ. Ca3. Cases on the Six Cir- 
 cuits, Irish N. P. 
 
 Skene or Skene Verb. Sign. Skene's De Verborum 
 Significatione. , 
 
 Skill. Pol. Rep. or Skillm. Skillman's New York 
 Police Reports. 
 
 Skin. Skinner's English King's Bench Reports. 
 
 Skink. or Skinker. Skinker's Reports, Missouri. 
 
 Skinn. Skinner's Reports, English King's Bench. 
 
 Slade. Slade Reports, Vermont. 
 
 Sloan Leg. Reg. Sloan's Legal Register, New York. 
 
 Sm. Smith's Reports, English King's Bench. 
 
 Sm. Ac. or Sm. Act. Smith's Actions at Law. 
 
 Sm. C. C. M. Smith's Circuit Courts-Martial Re- 
 ports, Maine. 
 
 Sm. Ch. Pr. Smith's Chancery Practice. 
 
 Sm. Cond. Ala. Smith's Condensed Alabama Re- 
 ports. 
 
 Sm. Cont. Smith on Contracts. 
 
 Sm. E.D. or Sm. (E.D.). E. D. Smith's Reports, 
 New York Common Pleas. 
 
 Sm. Eng. Smith's Reports, English King's Bench. 
 
 Sm. Eg. Smith's (J. W.) Manual of Equity;— 
 Smith's Principles of Equity. 
 
 Sm. Ex. Int. Smith on Executory Interest. 
 
 Sm. For. Med. Smith's Forensic Medicine, 
 
 Sm. Forms. Smith's Forms of Procedure. 
 
 Sm. (Ind.J. Smith's Reports, Indiana.
 
 ABBREVIATION 
 
 75 
 
 ABBREVIATION 
 
 Sm. (K. B.). Smith's Reports, English King's 
 Bench. 
 
 Sm. L. C. Smith's Leading Cases. 
 
 Sm. L. C. Comm. L. or Sm. L. Cas. Com. L. Smith's 
 Leading Cases on Commercial Law. 
 
 Sm. L. J . Smith's Law Journal. 
 
 Sm. Law of Prop. Smith on Real and Personal 
 Property. 
 
 Sm. Lead. Cas. Smith's Leading Cases. 
 
 Sm. L. d T. Smith on Landlord and Tenant. 
 
 Sm. Mast. d S. Smith on Master and Servant. 
 
 Sm. (Me.). Smith's Reports, Maine. 
 
 Sm. Merc. L. Smith's Mercantile Law. 
 
 Sm.(N.lL). Smith's Reports, New Hampshire. 
 
 Sm. (N. Y.). Smith's Reports, New York Court 
 of Appeals Reports, vols. 1.">-l'7. 
 
 Sm. or Sm. (P. F.) (Pa. ). Smith's Reports, Penn- 
 sylvania State Reports, vols. 51-8L 
 
 Sm. Pat. Smith on Patents. 
 
 Sm. Prob. L. Smith's Probate Law and Practice. 
 
 Sm. Real d P. Pr. Smith on Real and Personal 
 Property. 
 
 Sm. Rcc. Smith's Law of Receivers. 
 
 8m. Bepar. Smith's Law of Reparation. 
 
 Sm. Stat. L. Smith's Statutory and Constitutional 
 Law. 
 
 Sm. (Wis.). Smith's Reports, Wisconsin. 
 
 Sm. d B. R. R. Cas. or Sm. d B. Railw. Cas. 
 Smith and Bates's Railway Cases, American Courts. 
 
 Sm. d Bat. or Smi. d Bat. Smith & Batty's Irish 
 King's Bench Reports. 
 
 Sm. d G. Smale & Glffard's English Vice-Chan- 
 cellors' Reports;— Smith & Guthrie's Reports, vols. 
 81-101 Missouri Appeals. 
 
 Sm. d M. Smedes & Marshall's Mississippi Re- 
 ports. 
 
 Sm. d M. Ch. Smedes and Marshall's Chancery 
 Reports, Mississippi. 
 
 Sma. d GifJ. Smale & Giffard's English Vice-Chan- 
 cellors' Reports. 
 
 Smale & Giff. Smale and Giffard's Reports, Eng- 
 lish Chancery. 
 
 Smcd. & M. Smedes & Marshall's Mississippi Re- 
 ports. 
 
 Smcd. d M. Ch. Smedes & Marshall's Mississippi 
 Chancery Reports. 
 
 Smedes d M. (Miss.). Smedes & Marshall's Mis- 
 sissippi Reports. 
 
 Sm. d S. Dig. Vict. Smith & Skinner's Digest of 
 Victorian Reports. 
 
 Sm. d Sod. L. d T. Smith and Soden on Landlord 
 and Tenant. 
 
 Smedes d M. Smedes and Marshall's Reports, Mis- 
 sissippi Reports. 
 
 Smedes d M. Ch. Smedes and Marshall's Chan- 
 cery Reports, Mississippi. 
 
 Smith. See Sm. Smith's New Hampshire Re- 
 ports; Smith's Reports, vols. 2-4 Dakota;— J. P. 
 Smith's English King's Bench Reports;— Smith, in 
 continuation of Fox & Smith ;— Smith, English Reg- 
 istration ;— P. P. Smith's Pennsylvania State Re- 
 ports;— E. P. Smith's Reports, vols. 15-27 New York 
 Court of Appeals ;— E. D. Smith's New York Com- 
 mon Pleas Reports;— E. H. Smith's Reports, vols. 
 117-162 New York Court of Appeals;— Smith's Re- 
 ports, vols. 54-62 California;— Smith's Indiana Re- 
 ports ;— Smith's Reports, vols. 61-64 Maine ;— Smith's 
 Reports, vols. 1-11 Wisconsin;— E. B. Smith's Re- 
 ports, vols. 21-47 Illinois Appeals ;— Smith, Report- 
 er vols. 7, 12 Heiskell's Tennessee Reports;— Smith's 
 Reports, vols. 81-101 Missouri Appeals. 
 
 Smith, Act. Smith's Actions at Law. 
 
 Smith C. P. E. D. Smith's Common Pleas Re- 
 ports, New York. 
 
 Smith, Ch. Pr. Smith's Chancery Practice. 
 
 Smith, Cont. Smith on Contracts. 
 
 Smith de Rep. An pi. Smith (Sir Thomas), De Re- 
 publica Anglica [The Commonwealth of K 
 and the Manner of Government Thereof. 1621.] 
 
 Smith, Diet. Antiq. Smith's Dictionary of Greek 
 and Roman Antiquities. 
 
 Smith E. H. Smith's (E. H.) Reports, vols. 147- 
 162 New York Court of Appeals. 
 
 Smith E. P. or Smith E. P. Ct. App. E. P. Smith's 
 Reports, vols. 15-27 New York Court of Appeals. 
 
 Smith Ind. Smith's Indiana Reports. 
 
 Smith J. P. J. P. Smith's English B 
 Reports. 
 
 Smith L. C. Smith's Leading Cases. 
 
 Smith, Laws Pa. Smith's Laws of Pennsylvania. 
 
 Smith, Lead. Cas. Smith's Leading C 
 
 U Me. Smith's Reports, vols. 61-64 Maine. 
 i, Merc. Law. Smith on Mercantile !. 
 
 Smith N. H. Smith's New Hampshire 
 
 fi N. Y. Smith's Reports, \. ind 147- 
 
 162 New York Court of Appeals. 
 
 Smith P. F. or Smith P. F. Pa. P. F. Smith's Penn- 
 sylvania State Reports. 
 
 Smith, Wealth If at. Smith, Inquiry into the Na- 
 ture and Causes of the Wealth of Nations. 
 
 Smith Wis. Smith's Reports, vol . l-ll Wisconsin. 
 
 Smith dB. Smith & Batty's Irish King's Bench 
 Reports ;— Smith & Bates's American Railway Cases. 
 
 Smith &B.R.R.O. Smith & Bates's American 
 Railway Cases. 
 
 d G. Smith & Guthrie's Missouri Appeals 
 Reports. 
 
 It. Notes of cases In Smoult's Collection of 
 Orders, Calcutta. 
 
 Smy. or Smythe. Smythe's Irish Common Pleas 
 Reports. 
 
 Sn. or Snecd. Sneed's Tennessee Reports;— Sneed's 
 Kentucky Decisions. 
 
 Snced Dec. or Snecd Ky. Sneed's Kentucky Deci- 
 sions. 
 
 SnellEq. Snell's Principles of Equity. 
 
 Snell, Eq. Snell's Principles In Equity. 
 
 Snow. Snow's Reports, Utah. 
 
 Snow Cas. Int. L. Snow's Cases on International 
 Law. 
 
 Snyder Rel. Corp. Snyder on Religious Corpora- 
 tions. 
 
 So. A ns. L. R. or So. Austr. L. R. South Australian 
 Law Reports. 
 
 So. Car. South Carolina ;— South Carolina Re- 
 ports. 
 
 So. Car. Const. South Carolina Constitutional Re- 
 ports (by Treadway. by Mill, or by Harper). 
 
 So. Car. L. J. South Carolina Law Journal, Co- 
 lumbia. 
 
 So. East. Rep. Southeastern Reporter. 
 
 So. L. J. Southern Law Journal and Reporter, 
 Nashville, Tenn. 
 
 So. L. R. Southern Law Review, Nashville, Tenn. 
 
 So. L. R. N. S. Southern Law Review, New Series, 
 St. Louis, Mo. 
 
 So. L. T. Southern Law Times. 
 
 So. Rep. Southern Reporter (commonly cited 
 South, or So.). 
 
 So. West. L. J. Southwestern Law Journal, Nash- 
 ville, Tenn. 
 
 So. West. Rep. Southwestern Reporter (commonly 
 cited S. W.). 
 
 Soc. Econ. Social Economist. 
 
 Sol. Gen. Solicitor General. 
 
 Sol. J. Solicitor's Journal, London. 
 
 Sol. J. d R. Solicitors* Law Journal and Report- 
 er, London. 
 
 Somn. Gavelkind or Somner. Somner on Gavel- 
 kind. 
 
 Sou. Aus. L. R. South Australian Law Reports. 
 
 South. Southard's Reports, New Jersey Law. 
 
 Bouth. Southern Hi porter. 
 
 South Car. South Carolina. 
 
 South. L. J. <£ Rep. Southern Law Journal and 
 Reporter, Nashville, Tenn. 
 
 Smith. L. Rev. Southern Law Review, Nashville, 
 Tenn. 
 
 South. L. Rev. X. S. Southern Law Review, New 
 St. Louis. Mo. 
 
 Southard. Southard's New Jersey Reports. 
 
 Southw.L.J. Southwestern Law Journal and Re- 
 porter. 
 
 8p. Spink's English Ecclesiastical and Admiralty 
 Reports;— Spears's South Carolina Law Reports. 
 Special A.1 
 
 Sp. ch. or Sp. Eq. Spears'a South Carolina Equity 
 Hi ports. 
 
 Sp. Laws. Spirit of Laws, by Montesquieu. 
 
 Sp. Pr. Cas. Spink's Prize Cases. 
 
 Sp. T. Special Term. 
 
 Sp. d Sel. Cas. Special and Selected Law Cases.
 
 ABBREVIATION 
 
 76 
 
 ABBREVIATION 
 
 Sparks. Sparks's Reports, British Burmah. 
 Spaulding. Spaulding's Reports, vols. 71-80 Maine. 
 
 or. Spear's Reports, South Carolina. 
 Spear Ch. or Spear Eq. Spear's Chancery Reports, 
 South Carolina. 
 Spear Extr. Spear's Law of Extradition. 
 Spears Eq. or Speers Eq. Spears's (or Speers's) 
 South Carolina Equity Reports. 
 Spel. Spelman's Glossary. 
 Spel. Feud or Spel. Feuds. Spelman on Feuds. 
 Spel. Rep. Spelman's Reports, Manuscript, Eng- 
 lish King's Bench. 
 Spelman. Spelman, Glossarium Archalologicum. 
 Spenc. Spencer's Reports, New Jersey Law. 
 Spenc. (Minn.). Spencer's Reports, Minnesota. 
 Spence, Ch. Spence's Equitable Jurisdiction of the 
 Court of Chancery. 
 
 Spence, Eq. Jur. Spence's Equitable Jurisdiction 
 of the Court of Chancery. 
 Spence Or. L. Spence's Origin of Laws. 
 Spencer. Spencer's New Jersey Reports;— Spen- 
 cer's Reports, vols. 10-20 Minnesota. 
 Spens Sel. Cas. Spens's Select Cases, Bombay. 
 Spink. Spink's Reports, English Admiralty and 
 Ecclesiastical. 
 Spink P. C. Spink's Prize Cases, English. 
 Spinks. Spinks's English Ecclesiastical and Ad- 
 miralty Reports. 
 Spinks, P. C. Spinks's English Prize Cases. 
 Spoon, or Spooner. Spooner's Reports, Wisconsin, 
 vols. 12-15. 
 
 Spott. Spottiswoode's Reports, Scotch Court of 
 Session. 
 
 Spott. C. L. Rep. Spottiswoode's Common Law Re- 
 ports. 
 
 Spott. Eq. Rep. Spottiswoode's English Equity Re- 
 ports. 
 Spott. St. Spottiswoode's Styles, Scotland. 
 Spottis. Sir R. Spottiswoode's Reports, Scotch 
 Court of Session. 
 
 Spottis. C. L. & Eq. Rep. Common Law and Equi- 
 ty Reports, published by Spottiswoode. 
 
 Spr. or Sprague. Sprague's United States District 
 Court (Admiralty) Decisions. 
 
 St. State;— Story's United States Circuit Court 
 Reports (see Sto.) ;— Stair's Scotch Court of Session 
 Reports ;— Stuart's (Milne & Peddie) Scotch Session 
 Cases;— Statutes ;— Statutes at Large. 
 St. Abm. Statham's Abridgment. 
 St. Armand. St. Armand on the Legislative Pow- 
 er of England. 
 St. at Large. South Carolina Session Laws. 
 St. Cas. Stillingfleet's Ecclesiastical Cases, Eng- 
 lish. 
 St. Ch. Cas. Star Chamber Cases. 
 St. Clem. St. Clement's Church Case, Philadel- 
 phia. 
 
 St. Ecc. Cas. or St. Eccl. Cas. Stillingfleet's Eccle- 
 siastical Cases, English. 
 St. Inst. Stair's Institutes of the Law of Scotland. 
 St. Mark or St. Marks. St. Mark's Church Case, 
 Philadelphia. 
 St. Mario. Statute of Marlbridge. 
 St. Mert. Statute of Merton. 
 St. M. & P. Stuart, Milne & Peddie, Scotch. 
 ■ St. P. State Papers. 
 St. Rep. State Reports;— State Reporter. 
 St. Tr. or St. Tri. State Trials. 
 St. Westm. Statute of Westminster. 
 Stafford. Stafford's Reports, vols. 69-71 Vermont. 
 Stair. Stair's Reports, 'Scotch Court of Session. 
 Stair Inst. Stair's Institutes of the Laws of Scot- 
 land. 
 
 Stair Pr. Stair's Principles of the Laws of Scot- 
 land. 
 
 Stant. or Stanton. Stanton's Reports, Ohio, vols. 
 11-13. 
 Star. Starkie's English Nisi Prius Reports. 
 Star Ch. Ca. or Star Ch. Cas. Star Chamber Cases. 
 Stark. Cr. L. Starkie on Criminal Law. 
 Stark. Cr. PI. Starkie on Criminal Pleading. 
 Stark. Ev. Starkie on Evidence. 
 Stark. Jury Tr. Starkie on Trial by Jury. 
 Star%. N. P. Starkie's Reports, English Nisi Prius. 
 Stark. Slan. Starkie on Slander and Libel. 
 Starkie, Ev. Starkie on Evidence. 
 
 Star. Statute. 
 
 Stat, at L. or Stat, at L. V. S. Statutes at Large. 
 Stat. Glo. Statute of Gloucester. 
 Stat. Marl. Statute of Marlbridge. 
 Stat. Mer. Statute of Merton. 
 Stat. Westm. Statute of Westminster. 
 Stat. Winch. Statute of Winchester. 
 State Tr. State Trials. 
 
 Stath. Abr. Statham's Abridgment of the Law. 
 Staundef. Staundeforde, Exposition of the King's 
 Prerogative. 
 Staundef. P. C. Staundeforde, Les Plees del Coron. 
 Staunf. P. C. & Pr. Staunforde's Pleas of the 
 Crown and Prerogative. 
 
 Stearns R. A. or Stearns, Real Act. Stearns on Real 
 Actions. 
 
 Steph. Com. or Steph. Comm. Stephen's Commen- 
 taries on English Law. 
 
 Steph. Const. Stephens on the English Constitu- 
 tion. 
 Steph. Cr. L. Stephen on Criminal Law. 
 Steph. Crim. Dig. Stephen's Digest of the Crim- 
 inal Law. 
 
 Steph. Dig. Stephen's Digest, New Brunswick Re- 
 ports. 
 Steph. Elect. Stephens on Elections. 
 Steph. Ev. Stephen's Digest of Evidence. 
 Steph. Led. Stephen, Lectures on History of 
 France. 
 Steph. N. P. Stephens's Nisi Prius. 
 StepTi. PI. Stephen on Pleading. 
 Stev. Dig. Stevens's New Brunswick Digest. 
 Stev. & Ben. Av. Stevens and Benecke on Average 
 and Insurance. 
 
 Stevens & G. Stevens & Graham's Reports, vols. 
 98-139 Georgia. 
 
 Stew. Stewart's Alabama Reports ;— Stewart's 
 New Jersey Equity Reports ;— Stewart's (R. W.) Re- 
 ports, vols. 1-10 South Dakota. 
 Stew. (Ala.). Stewart's Reports, Alabama. 
 Stew. Adm. Stewart's Vice-Admiralty Reports, 
 Nova Scotia. 
 
 Steio. Eq. Stewart's Reports, vols. 28-45 New Jer- 
 sey Equity. 
 
 Stew. (N. J.). Stewart's Reports, New Jersey 
 Equity Reports, vqIs. 28-45. 
 
 Stew. N. Sc. Stewart's Admiralty Reports, Nova 
 Scotia. 
 
 Stew. V. A. Stewart's Vice-Admiralty Reports, 
 Nova Scotia. 
 
 Stew. & P. or Stew. & Port. Stewart & Porter's 
 Alabama Reports. 
 Stiles. Stiles's Reports, Iowa. 
 
 Still. Eccl. Cas. or Stillingfl. Ecc. Stillingfleet's Ec- 
 clesiastical Cases. 
 
 Stim. Gloss, or Stim. Law Gloss. Stimson's Law 
 Glossary. 
 Stimson. Stimson's Law Glossary. 
 Stiness. Stiness's Reports, vols. 20-34 Rhode Is- 
 land. 
 
 Sto. or Sto. C. C. Story's United States Circuit 
 Court Reports. 
 
 Sto. & H. Cr. Ab. Storer and Heard on Criminal 
 Abortion. 
 
 Stock. Stockton's New Jersey Equity Reports ;— 
 Stockton, New Brunswick (same as Berton's Re- 
 ports). 
 Stock. (Md.). Stockett's Reports, Maryland. 
 Stock Non Com. Stock on the Law of Non Com- 
 potes Mentis. 
 Stockett. Stockett's Reports, vols. 27-79 Maryland. 
 Stockt. Ch. Stockton's New Jersey Chancery Re- 
 ports. 
 Stokes L. of A. Stokes on Liens of Attorneys. 
 Stone B. B. S. Stone on Benefit Building Societies. 
 Storer & H. Cr. Ab. Storer and Heard on Crim- 
 inal Abortion. 
 
 Story. Story's United States Circuit Court Re- 
 ports. See, also, Sto. 
 Story Ag. Story on Agency. 
 Story Bailm. Story on Bailments. 
 Story Bills. Story on Bills. 
 Story Comm. Story's Commentaries. 
 Story Confl. L. or Story, Confl. Laws. Story on Con- 
 flict of Laws.
 
 ABBREVIATION 
 
 77 
 
 ABB UK VI AT! ON 
 
 Story Const. Story on the Constitution. 
 Story font, or Story Contr. Story on Contracts. 
 Story Eq. Jur. Story's Equity Jurisprudence. 
 Stoi •!/ Eq. PI. Story's Equity Pleading. 
 Story Laws or Story L. U. S. Story's Laws of the 
 United States. 
 Story Fart, or Story Partn. Story on Parti. 
 Story Prom. N. or Story Prom. Notes. Story on 
 I 
 Story Bales. Story on Sales of Personal Property. 
 /, U. S. Laws. Story's Laws of the United 
 States. 
 Btr. Strange's English King's Bench Reports. 
 Str. Cos. Ev. or Str. S vo. Strange's Cases of Evi- 
 dence ("Octavo Strange"). 
 Str. 11. L. Strange's Hindoo Laws. 
 Str. N. C. Strange's Notes of Cases, Madras. 
 Stra. Strange;— Strange's Reports, English Courts. 
 Struac. de tier. Straacha de .Mercatura, Navlbus 
 Assecuratiouibus. 
 
 Strah.Dom. Strahan's Translation of Domat's 
 Civil Law. 
 Sirahan. Strahan's Reports, vol. 19 Oregon. 
 
 i. Strange. 
 Strange. Strange's Reports, English Courts. 
 strange, Madras. Strange's' Notes of Cases, Ma- 
 dras. 
 
 Stratton. Stratton's Reports, vols. 12-14, 19 Ore- 
 gon. 
 Stringf. Stringfellow's Reports, Missouri. 
 si ring fellow. Stringfellow's Reports, vols. 9-11 
 Missouri. 
 St rob. Strobhart's Law Reports, South Carolina. 
 £ I rob. Ch. or St rob. Eq. Strobhart's Equity Re- 
 ports, South Carolina. 
 
 struve. Struve's Reports, vol. 3 Washington Ter- 
 ritory. 
 
 Stuart, Milne and Peddie's Reports, Scotch 
 Court of Session. 
 
 stu.Adm. Stuart's Lower Canada Vice-Admiralty 
 R t j.orts. 
 
 Stu. Ap. Stuart's Appeal Cases (Lower Canada 
 I Bench Reports). 
 
 Stu. K. B. or Stu. L. C. Stuart's Reports, Lower 
 Canada King's Bench. 
 
 Mil. & Ped. Stuart, Milne & Peddie's Scotch 
 Court of Session Reports. 
 
 Stu.M.dP. Stuart, Milne and Peddie's Reports, 
 Bcotcta Court of Session. 
 
 Stu. V. A. Stuart's Vice-Admiralty Reports, Low- 
 er Canada. 
 
 Stuart. Stuart's Lower Canada King's Bench Re- 
 ports ;— Stuart's Lower Canada Vice-Admiralty Re- 
 ports ;— Stuart, Milne & Peddie's Scotch Court of 
 id Reports. 
 Stuart L. C. K. B. Stuart's Lower Canada King's 
 Bench Reports. 
 
 Stuart L. C. V. A. Stuart's Lower Canada Vice- 
 Admiralty Reports. 
 
 Stud. Hist. Studies In History, Economics and 
 Public Law. 
 Sty. Style's English King's Bench Reports. 
 stu. I'r. Reg. Style's Practical Register. 
 Sud. Dew. Ad. or Sud. Dexo. Adul. Sudder Dewanny 
 Adawlut Reports, India. 
 
 Bud. Dexo. Rep. Sudder Dewanny Reports, N. W. 
 Provinces, India. 
 
 Siiod. Est. Sugden on the Law of Estates. 
 Sitijd. Po%0. or Sugd. Powers. Sugden on Powers. 
 Sugd. Pr. Sugden on the Law of Property. 
 Sugd. Pr. St. Sugden on Property Statutes. 
 Sugd. Vend, or Sugd. Vend, if P. Sugden on Ven- 
 dors and Purchasers. 
 
 Bull. Land Tit. Sullivan on Land Titles In Massa- 
 chusetts. 
 
 Still. Lect. Sullivan's Lectures on Constitution 
 and Laws of England. 
 
 Sum. Suuima. the summary of a law ;— Sumner's 
 United States Circuit Court Reports. 
 Sum.Vcs. Sumner's Edition of Vesey'a Reports. 
 Summ. Dec. Summary D& ogal. 
 
 Summerfield, S. Summer!!. Id's (S.) Reports, vol. 21 
 Nevada. 
 
 Sumn. Sumner's Reports, U. S. Circuit Court, 
 1st Circuit. 
 
 Sumn. Ves. Sun.i. rts. 
 
 Sup. Superseded ;— Superior ;—Saia. :ne ; — S 
 m< nt. 
 
 Sup. Ct. or Sup. Ct. Rep. Supreme Court '.eportei 
 of Decisions of United Stat' s Supreme 
 Super. Superior Court ;— Superior Co 
 Supp. Supplement;— New York Supi ... 
 ports. 
 
 Supp. Ves. Jun. or Supp. Ves. Jr. Supplen. 
 Vesey, Jr. 'a Reports. 
 Supr. Supreme ;— Superior Court Reports. 
 
 1 & Supreme Court Report- 
 er. All the Federal Courts. 
 Burr. Surrogate. 
 
 Susq.L.C. Susquehanna Leading Chronicle. 
 Suth. Sutherland's Reports, Calcutta. 
 Sutli. Bengal. Sutherland's High Court Reports, 
 Bengal. 
 Suth. Dam. Sutherland on the Law of Damages. 
 Sutli. F. B. R. Sutherland's Full Bench Rulings, 
 Bengal. 
 
 Suth. P. C. A. or Suth. P. C. J. Sutherland's Privy 
 Council Judgments or Appeals. 
 
 Suth. W. R- or Suth. W. Rep. Sutherland's Weekly 
 Reporter, Calcutta. 
 
 Sw. Swanston's English Chancery Rci 
 Swabey's English Admiralty Reports ;— Sv, 
 New York Superior Court Reports ;— Swan's 1 
 see Reports ;— Swinton's Scotch Justiciary Co 
 Swan ;— Sweet ;— Swift 
 
 Swab, or Sicab. Adm. or Swab. Admr. Swabey's 
 Admiralty Reports, English. 
 
 Swab. £ Tr. or Swab. <I- Trist. Swabey and Trist- 
 ram's Reports, English Probate and Divorce. 
 
 Swan. Swan's Tennessee Reports ; — Swanston's 
 English Chancery Reports. 
 
 Swan'il. Swan's Revised Statutes of Ohio, 1841. 
 Swan '5J/. Swau's Revised Statutes of Ohio. 1S54. 
 Swan. Ch. Swanston's English Chancery Reports. 
 Swan Ecc. fas. Swan on the Jurisdiction of Ec- 
 clesiastical Courts. 
 Sivan Just. Swan's Justice. 
 Swan PI. <&. Pr. Swan's Pleading and Practice. 
 Swan Pr. Swan's Prs 
 Swan Tr. Swan's Treatise, Ohio. 
 Swans. Swanston's Reports, English Chancery. 
 Swans, or Swanst. Swanston's English Chancery 
 Reports. 
 
 Sween. or Sweeney. Sweeney's New York Superior 
 Court Reports, vols. 31, 
 
 Sweet. Sweet's Law Dictionary ;— Sweet on the 
 Limited Liability Act ;— Sweet's Marriage Settlement 
 Cases ;— Sweet's Precedents in Conveyancing ;— Sweet 
 on Wills. 
 
 Sweet M. Sett. Cas. Sweet's Marriage Settlement 
 Cases. 
 
 Sweet Pr. Conv. Sweet's Precedents In Convey- 
 ancing. 
 Swift Dig. Swift's Digest Connecticut 
 
 Sys. Swift's System of the Laws of Con- 
 necticut. 
 
 Swin. or Stem. Jus. Cas. Swinton's Scotch Justici- 
 ary Cases. 
 
 Sivin. Reg. App. Swinton's Scotch Registration Ap- 
 peal Cases. 
 Swinb. Des. Swinburne on the Law of Descents. 
 Swinb. Mar. Swinburne on Marriage. 
 Swinb. Spo. Swinburne on Spousals. 
 Swinb. Wills. Swinburne on Wills. 
 Bwint. Swinton's Justiciary Cases, Scotland. 
 Syd. App. Sydney on Appi 
 Symc. Syme's Justiciary Cases, Scotland. 
 Syn. Ser. Synopsis Series of the U. S. Treasury 
 Decisions. 
 
 T. Territory;— Tappan's Ohio Reports;— Tempore ; 
 —Title ;— Trinity Term. 
 
 T. ;.'. Mon. or T. B. Monr. T. B. Monroe's Kentucky 
 Reports. 
 T. .'>'. ,0 M. Tracewell. Bowers A Mitchell, United 
 
 i Comptroll' i i^S. 
 
 T.E.R. Tempore Regis EdwardL 
 T.Jem '<'■ Jonea'a English King's. 
 
 Bench and Common Pleas Reports. 
 T. L. Tonnes de la Ley. 
 T. L. R. Times Law Reports.
 
 ABBREVIATION 
 
 78 
 
 ABBREVIATION 
 
 T. R. Term Reports, Durnford & East ;— Teste 
 Rege ;— Dayton Term Reports. 
 
 T. R. E. or T. E. R. Tempore Regis Edwardi. 
 
 T. R. (N. Y.). Caines's (Term) Reports, New York. 
 
 T. R. N. 8. Term Reports, New Series (East's Re- 
 ports). 
 
 T. Raym. T. Raymond's Reports, English King's 
 Bench. 
 
 T. T. Trinity Term. 
 
 T. T. R. Tarl Town Reports, New South Wales. 
 
 T. V. P. Charlt. T. U. P. Charlton's Reports, Geor- 
 gia. 
 
 T. & C. Thompson and Cook's Reports, New York 
 Supreme Court. 
 
 T. & G. Tyrwhitt and Granger's Reports, English 
 Exchequer. 
 
 T. & M. Temple & Mew's Crown Cases, English. 
 
 T. & P. Turner and Phillips's Reports, English 
 Chancery. 
 
 T. & R. Turner and Russell's Reports, English 
 Chancery. 
 
 Tait. Talt's Manuscript Decisions, Scotch Session 
 Cases. 
 
 Tait Ev. Tait on Evidence. 
 
 Tal. or Talb. Cases tempore Talbot, English Chan- 
 cery. 
 
 Tarn. Tamlyn's English Rolls Court Reports. 
 
 Taml. Tamlyn's Reports, English Chancery. 
 
 Taml. Ev. Tamlyn on Evidence. 
 
 Taml. T. Y. Tamlyn on Term of Years. 
 
 Tan. or Tan. Dec. or Taney. Taney's Decisions, by 
 Campbell, United States Circuit Court, 4th Circuit. 
 
 Tann. or Tanner. Tanner's Reports, vols. 8-14 In- 
 diana ; — Tanner's Reports, vols. 13-17 Utah. 
 
 Tap. Tappan's Nisi Prius Reports, Ohio. 
 
 Tap. C. M. Tapping's Copyholder's Manual. 
 
 Tap. Man. Tapping on the Writ of Mandamus. 
 
 Tapp. Tappan's Nisi Prius Reports, Ohio. 
 
 Tapp M. & C. Tapp on the Law of Maintenance 
 and Champerty. 
 
 Tarl. Term R. Tarleton's Term Reports, New 
 South Wales. 
 
 Tas.-Lang. Const. His. Taswell-Langmead's Con- 
 stitutional History of England. 
 
 Taun. or Taunt. Taunton's English Common Pleas 
 Reports. 
 
 Tax Law Rep. Tax Law Reporter. 
 
 Tay. Taylor (see Taylor) ; — Taylor's Reports, On- 
 tario. 
 
 Tay. J. L. or Tay. N. C. J. L. Taylor's North Caro- 
 lina Reports. 
 
 Tay. U. C. Taylor's Upper Canada Reports. 
 
 Tay. & B. Taylor & Bell's Bengal Reports. 
 
 Tayl. Bank. L. Taylor on the Bankruptcy Law. 
 
 Tayl. Civ. L. or Tayl. Civil Law. Taylor on Civil 
 Law. 
 
 Tayl. Ev. Taylor on Evidence. 
 
 Tayl. Gloss. Taylor's Law Glossary. 
 
 Tayl. Gov. Taylor on Government. 
 
 Tayl. Hist. Gav. Taylor (Silas), History of Gavel- 
 kind. 
 
 Tayl. (J. L.). Taylor's Reports, North Carolina 
 Term Reports. 
 
 Tayl. L. & T. Taylor on Landlord and Tenant. 
 
 Tayl. Law Glos. Taylor's Law Glossary. 
 
 Tayl. Med. Jur. Taylor's Medical Jurisprudence. 
 
 Tayl. Pois. Taylor on Poisons. 
 
 Tayl. (U. C). Taylor's Reports, Upper Canada 
 King's Bench. 
 
 Tayl. Wills. Taylor on Wills. 
 
 Taylor. Taylor's North Carolina Reports ; — Tay- 
 lor's Upper Canada Reports ;— Taylor's Bengal Re- 
 ports. 
 
 Taylor U. C. Taylor's King's Bench Reports, Up- 
 per Canada (now Ontario). 
 
 Tech. Diet. Crabb's Technological Dictionary. 
 
 Techn. Diet. Crabb's Technological Dictionary. 
 
 Tel. The Telegram, London. 
 
 Temp. Tempore (in the time of). 
 
 Temp. Geo. II. Cases in Chancery tempore George 
 II. 
 
 Temp. & M. Temple & Mew's English Crown Cases. 
 
 Ten. Cas. Thompson's Unreported Cases, Tennes- 
 see ;— Shannon's Cases, Tennessee. 
 
 Tenn. Tennessee ;— Tennessee Reports (Overton's). 
 
 Tenn. Ch. Tennessee Chancery Reports (Cooper's). 
 
 Tenn. Leg. Rep. Tennessee Legal Reporter, Nash- 
 ville. 
 
 Term. Term Reports, English King's Bench 
 (Durnford and East's Reports). 
 
 Term N. C. Term Reports, North Carolina, by 
 Taylor. 
 
 Term R. Term Reports, English King's Bench 
 (Durnford & East's Reports). 
 
 Termes de la Ley. Les Termes de la Ley. 
 
 Terr. Territory ; — Terrell's Reports, vols. 52-71 
 Texas. 
 
 Terr. & Wal. or Terr. & Walk. Terrell and Walk- 
 er's Reports, Texas Reports, vols. 38-51. 
 
 Tex. Texas ;— Texas Reports. 
 
 Tex. App. Texas Court of Appeals Reports (Crim- 
 inal Cases) ; — Texas Civil Appeals Cases. 
 
 Tex. Civ. App. or Tex. Civ. Rep. Texas Civil Ap- 
 peals Reports. 
 
 Tex. Cr. App. Texas Criminal Appeals. 
 
 Tex. Crim. Rep. Texas Criminal Reports. 
 
 Tex. Ct. Rep. Texas Court Reporter. 
 
 Tex. L. J. Texas Law Journal, Tyler, Texas. 
 
 Tex. Supp. Supplement to vol. 25, Texas Reports. 
 
 Tex. Unrep. Cas. Texas Unreported Cases, Su- 
 preme Court. 
 
 Th. Thomas (see Thorn.) ; — Thomson (see Thorn.) ; 
 — Thompson (see Thomp.). 
 
 Th. B. & N. Thomson on Bills and Notes. 
 
 Th. Br. Thesaurus Brevium. 
 
 Th. C. Theodon Capitula et Fragmenta. 
 
 Th. C. C. Thacher's Criminal Cases, Massachu- 
 setts. 
 
 Th. C. Const. Law. Thomas's Leading Cases in 
 Constitutional Law. 
 
 Th. Dig. Theloall's Digest. 
 
 Th. Ent. Thompson's Entries. 
 
 Th. & C. Thompson & Cook's New York Supreme 
 Court Reports. 
 
 Thac. Cr. Cas. or Thach. Cr. Cas. Thacher's Crim- 
 inal Cases, Massachusetts. 
 
 Thayer. Thayer's Reports, vol. 18 Oregon. 
 
 Thayer Cas. Ev. Thayer's Select Cases on Evi- 
 dence. 
 
 Thayer Cont. L. Thayer's Cases on Constitutional 
 Law. 
 
 The Rep. The Reporter ; — The Reports (Coke's 
 Reports). 
 
 Them. La Themis, Montreal, Quebec ; — The Amer- 
 ican Themis, New York. 
 
 Themis. The American Themis, New York. 
 
 Theo. Pr. & S. Theobald on Principal and Surety. 
 
 Theo. Wills. Theobald on Construction of Wills. 
 
 Thes. Brev. Thesaurus Brevium. 
 
 Tho. Thomas (see Thorn.) ; — Thomson (see 
 Thorn.) ; — Thompson (see Thomp.). 
 
 Thorn. Thomson's Reports, Nova Scotia ; — Thom- 
 as's Reports, vol. 1 Wyoming. 
 
 Thorn. Bills. Thomson on Bills and Notes. 
 
 Thorn. Co. Litt. Thomas's Edition of Coke upon 
 Littleton. 
 
 Thorn. Const. L. Thomas's Leading Cases on Con- 
 stitutional Law. 
 
 Thorn. Dec. 1 Thomson, Nova Scotia Reports. 
 
 Thorn. L. C. Thomas's Leading Cases on Constitu- 
 tional Law. 
 
 Thorn. Mart. Thomas on Mortgages. 
 
 Thorn. Rep. 2 Thomson, Nova Scotia Reports. 
 
 Thorn. Sc. Acts. Thomson's Scottish Acts. 
 
 Thorn. Sel. Dec. Thomson's Select Decisions, Nova 
 Scotia. 
 
 Thorn. U. Jur. Thomas on Universal Jurispru- 
 dence. 
 
 Thorn. fWyJ. Thomas's Reports, Wyoming. 
 
 Thorn. & Fr. Thomas & Franklin's Reports, Mary- 
 land Ch. Dec, vol. 1. 
 
 Thomas. Thomas's Reports, Wyoming Territory. 
 
 Thomas, Mortg. Thomas on Mortgages. 
 
 Thomp. B. B. 8. Thompson on Benefit Building 
 Societies. 
 
 Thomp. (Gal.). Thompson's Reports, California 
 Reports, vols. 39-40. 
 
 Thomp. Car. Thompson on Carriers. 
 
 Thomp. Ch. Jury. Thompson on Charging the Jury.
 
 ABBREVIATION 
 
 79 
 
 ABBREVIATION 
 
 Thomp. Cit. Thompson's Citations, Ohio ;— Indi- 
 ana. 
 Thomp. Corp. Thompson on Corporations. 
 Thomp. Ent. Thompson's Entries. 
 Thomp. High. Thompson on the Law of High- 
 ways. 
 
 Thomp. Home, d Excm. Thompson on Homestead 
 and Exemption. 
 
 b.Off. Thompson's Cases on Liability 
 of Officers o£ Corporations. 
 
 Thomp. Liab. Stuckh. Thompson on Liability of 
 Stockholders. 
 
 Thomp. N. B. Cas. Thompson's National Bank 
 Cases. 
 
 Thomp. (N. S.). Thompson's Reports, Nova Sco- 
 tia. 
 Thomp. Neg. Thompson's Cases on Negligence. 
 Thomp. Item. Thompson's Provisional Remedies. 
 Thomp. Term. Cas. Thompson's Unreported Ten- 
 nessee Cases. 
 
 Thomp. <t C. Thompson & Cook's New York Su- 
 preme Court Reports. 
 
 Thompson. Thompson's Reports, vols. 39, 40 Cal- 
 ifornia ;— Thompson's Nova Scotia Reports. 
 Thor. Thorington's Reports, vol. 107 Alabama. 
 Thorn. Thornton's Notes of Cases Ecclesiastical 
 and Maritime, English. 
 Thorn. Conv. Thornton's Conveyancing. 
 Thorpe. Thorpe's Reports, vol. 52 Louisiana An- 
 nual. 
 Thos. Thomas (see Thorn.). 
 
 Throop Ag. or Throop V. Ag. Throop on Verbal 
 Agreements. 
 
 Tich. Tr. or Ticho. Tr. Report of the Tlchborne 
 Trial, London. 
 Tidd. Tidd's Costs;— Tidd's Practice. 
 Tidd Pr. Tidd's Practice. 
 
 Tidd Pr. Tidd's Practice In the King's Bench. 
 Tiff. Tiffany's Reports, vols. 28-39 New York 
 Court of Appeals. 
 
 Tiff. Tiffany's Reports, New York Court of Ap- 
 peals Reports, vols. 28-39. 
 
 Tiff. & B. Tr. Tiffany and Bullard on Trusts and 
 Trustees. 
 
 Tiff. & S. Pr. Tiffany and Smith's Practice, New 
 York. 
 
 Tiffany. Tiffany's Reports, vols. 28-39 New York 
 Court of Appeals. 
 Till. Prec. Tillinghast's Precedents. 
 Till. & Sh. Pr. Tillinghast and Shearman's Prac- 
 tice. 
 
 Till. & Yates App. Tillinghast and Yates on Ap- 
 peals. 
 
 Tillman. Tillman's Reports, vols. G8, 69, 71, 73, 75 
 Alabama. 
 Times L. R. Times Law Reports. 
 Tinw. Tinwald's Reports, Scotch Court of Ses- 
 sion. 
 Tit. Title. 
 
 To. Jo. Sir Thomas Jones's English King's Bench 
 Reports. 
 Tobey. Tobey's Reports, vols. 9-10 Rhode Island. 
 Toll. Ex. Toller on Executors. 
 
 Tomk. Inst, or Tomk. R. L. Tompkins's Institutes 
 of Roman Law. 
 
 Tomk. & J. R. L. Tompkins and Jeckens's Roman 
 Law. 
 
 Tomkins <£- J. Mod. Rom. Law. Tomkins & Jenck- 
 en, Compendium of the Modern Roman Law. 
 
 Toml. or Toml. Cas. Tomlins's Election Evidence 
 Cases. 
 Toml. L. D. Tomlin's Law Dictionary. 
 Toml. Supp. Br. Tomlin's Supplement to Brown's 
 Parliamentary < 
 Tor. Deb. Torbuek's Reports of Debates. 
 Tot. or Toth. Tothill's English Chancery Reports. 
 Touch. Sheppard's Touchstone. 
 Toull. or Toull. Dr. Civ. or Toull. Droit Civil Fr. 
 or Toullier, Dr. Civ. Fr. Toullier's Droit Civil 
 Frangals. 
 Town. SI. & L. Townshend on Slander and Libel. 
 Town. St. Tr. Towusend's Modern State Trials. 
 Town. Sum. Proc. Townshend's Summary Proceed- 
 ings by Landlords against Tenants. 
 Townsh. PI. Townshend's Pleading. 
 Tr. Translation;— Translator. 
 
 Tr. App. New York Transcript Appeals. 
 Tr. Ch. Transactions of the High C urt of Chalk 
 eery (Tothill's Rep 
 
 Treatise of Equity, by Fonb: 
 Tr. de H. Pr. Troubat aud llaly't . Penn 
 
 sylvania. 
 
 Tr. d H. Prec. Troubat and Haly's Pr 
 Indictments. 
 
 cf If. Tracewell and Mitchell, United 
 Comptroller's Decisions. 
 Traill Med. Jur. Traill on Medical Jurispru 
 ,t //. Prec. Train and Heard's . 
 of Indictments. 
 
 Uu Mar. Pothler, Tralt6 du Contrat de 
 Mariage. 
 Trans. App. Transcript Appeals, New York. 
 Trat. Jur. Mer. Tratade de Jurisprudentia Mer- 
 cantil. 
 
 Truv.Tw. L.of N. Travers Twiss on the Law of 
 Nations. 
 
 Tray. Lat. Max. or Leg. Max. Trayncr, Latin Max- 
 ims and Phrases, etc. 
 
 . or Tread. Const. (S. C). Treadway's South 
 Carolina Constitutional Reports. 
 
 Treb. Jur. de la Med. Trebuchet, Jurisprudence de 
 la Medecine. 
 Tred. Tredgold's Reports, Cape Colony. 
 Trem. Tremaine's Pleas of the Crown. 
 Trev. Tax. Sue. Trevor on Taxes on Succession. 
 Tri. Bish. Trial of the Seven Bishops. 
 Tri. E. of Cov. Trial of the Earl of Coventry. 
 Tri. per Pais. Trials per Pais. 
 Trib. Civ. Tribunal Civil. 
 Trib. de Com. Tribunal de Commerce. 
 Trin. or Trin. T. Trinity Term. 
 Tripp. Tripp's Reports, vols. 5-6 Dakota. 
 Tristram. Tristram's Supplement to vol. 4 Swa- 
 bey & Tristram. 
 Trop. Dr. Civ. Troplong's Droit Civil. 
 
 Lim. Part, or Troub. Lim. Partn. Troubat 
 on Limited Partnerships. 
 
 Troub. <f- //. Pr. Troubat and Haly's Practice, 
 Pennsylvania. 
 Tru. Railw. Rep. Truman's Railway Reports. 
 True. Trueman's New Brunswick Reports and 
 Equity Cases. 
 
 . Tuck. Tucker's New York Surrogate Reports;— 
 Tucker's Select Cases, Newfoundland;— Tucker's 
 Reports, vols. 156-175 Massachusetts ;— Tucker's Dis- 
 trict of Columbia Appeals Reports. 
 
 Tuck. Bla. Com. Blackstone's Commentaries, by 
 Tucker. 
 Tuck. Led. Tucker's Lectures. 
 Tuck. PI. Tucker's Pleadings. 
 
 Tuck. Sel. Cas. Tucker's Select Cases, Newfound- 
 land Courts. 
 
 Tuck. Surr. Tucker's Surrogate Reports, City of 
 New York. 
 
 Tuck. <£ CI. Tucker and Clephane's Reports, D. of 
 Col., vol. ZL 
 
 Tud. Cas. Merc. Law. Tudor's Leading Cases on 
 Mercantile Law. 
 
 Tud. Cas. R. P. Tudor's Leading Cases on Real 
 Property. 
 
 Tud, Char. Tr. or Tud. Char. Trusts. Tudor on 
 Charitable Trusts. 
 
 Tud. L. Cas. or Tud. L. Cas. M. L. Tudor's Lead- 
 ing Cases on Mercantile Law. 
 
 Tud. L. Cas. R. P. Tudor's Leading Cases on Real 
 Property. 
 
 Tudor, Lead. Cas. Real Prop. Tudor's Leading 
 Cases on Real Property. 
 Tup. App. Tupi 1 Reports, Ontario. 
 
 Tupper. Tupper's Reports, Ontario Appeals;— 
 Tupper's Upper Canada Practice 
 
 Turner & Russell's English Chancery Re- 
 ports. 
 
 Turn. Turner's Reports, vols. 99-101 Kentucky ;— 
 Turner's Reports, vols. 35, 4S Arkansas. 
 
 Turn. Anglo Sax. Turner, History of the Anglo 
 Saxons. 
 
 Turn. (Ark.). Turner's Reports, Arkansas, vols. 
 35-48. 
 Turn. Ch. Pr. Turner on Chancery Practice. 
 Turn. Pr. Turnbull's Practice, New York.
 
 ABBREVIATION 
 
 80 
 
 ABBREVIATION 
 
 Turn. & Ph. Turner and Phillip's Reports, Eng- 
 lish Chancery. 
 
 Turn. Jc R. or Turn. & Run. or Turn. & Russ. 
 Turner & Russell's English Chancery Reports. 
 
 Tutt. Tuttle's Reports, California. 
 
 Tutt. & Carp. Tuttle and Carpenter's Reports, 
 California Reports, vol. 5^. 
 
 Tuttle. Tuttle's Reports, vols. 23-32 and 41-52 Cal- 
 ifornia. 
 
 Tuttle & Carpenter. Tuttle & Carpenter's Reports, 
 Tol. 52 California. 
 
 Twiss L. of Nat. Twiss's Law of Nations. 
 
 Ty. Tyler. 
 
 Ti/l. or Tyler. Tyler's Vermont Reports. 
 
 Tyler Bound. & Fences. Tyler's Law of Bounda- 
 ries and Fences. 
 
 Tyler Ecc. Tyler on American Ecclesiastical Law. 
 
 Tyler Ej. Tyler on Ejectment and Adverse En- 
 joyment. 
 
 Tyler Fixt. Tyler on Fixtures. 
 
 Inf. Tyler on Infancy and Coverture. 
 
 Tyler Vs. Tyler on Usury. 
 
 Tyng. Tyng's Reports, vols. 2-17 Massachusetts. 
 
 Tyr. or Tyrw. Tyrwhitt & Granger's English Ex- 
 chequer Reports. 
 
 Tyr. & Gr. Tyrwhitt & Granger's English Excheq- 
 uer Reports. 
 
 Tyrw. Tyrwhitt's Reports, English Exchequer. 
 
 Tyrw. & G. Tyrwhitt and Granger's Reports, Eng- 
 lish Exchequer. 
 
 Tytler, Mil. Law. Tytler on Military Law and 
 Courts-Martial. 
 
 U. Utah ;— Utah Reports. 
 
 V. B. Upper Bench. 
 
 17. B. Pr. or U. B. Prec. Upper Bench Precedents 
 tempore Car. I. 
 
 V. C. Upper Canada. 
 
 V. C. App. Upper Canada Appeal Reports. 
 
 U. C. C. P. Upper Canada Common Pleas Reports. 
 
 O. C. Ch. Upper Canada Chancery Reports. 
 
 U. C. Cham. Upper Canada Chambers Reports. 
 
 V. C. Chan. Upper Canada Chancery Reports. 
 
 V. C. E. & A. Upper Canada Error and Appeals 
 Reports. 
 
 V. C. Jur. Upper Canada Jurist. 
 
 V. C. K. B. Upper Canada King's Bench Reports, 
 Old Series. 
 
 V. C. L. J. Upper Canada Law Journal, Toronto. 
 
 TJ. C. O. S. Upper Canada Queen's Bench Reports, 
 Old Series. 
 
 U. C. P. R. Upper Canada Practice Reports. 
 
 V. C. Pr. Upper Canada Practice Reports. 
 
 TJ. C. Q. B. Upper Canada Queen's Bench Reports. 
 
 V. C. Q. B. O. S. Upper Canada Queen's (King's) 
 Bench Reports, Old Series. 
 
 U. C. R. Queen's Bench Reports, Ontario. 
 
 TJ. C. Rep. Upper Canada Reports. 
 
 TJ. K. United Kingdom. 
 
 TJ. S. United States ; — United States Reports. 
 
 TJ. S. Ap. United States Appeals Reports. 
 
 U. S. App. United States Appeals, Circuit Courts 
 of Appeals. 
 
 TJ. S. C. C. United States Circuit Court ;— United 
 States Court of Claims. 
 
 V. S. C. S. United States Civil Service Commis- 
 sion. 
 
 TJ. S. Comp. St. United States Compiled Statutes. 
 
 TJ. S. Comp. St. Supp. United States Compiled 
 Statutes Supplement. 
 
 TJ. S. Crim. Dig. ' United States Criminal Digest, 
 by Waterman. 
 
 TJ. S. Ct. CI. Reports of the United States Court 
 of Claims. 
 
 TJ. S. D. C. United States District Court ;— United 
 States District of Columbia. 
 
 U. S. Dig. Abbott's United States Digest. 
 
 U. S. Eq. Dig. United States Equity Digest. 
 
 TJ. S. Jur. United States Jurist, Washington, D. C. 
 
 U. S. L. Int. United States Law Intelligencer (An- 
 gell's), Providence and Philadelphia. 
 
 TJ. S. L. J. United States Law Journal, New Haven 
 and New York. 
 
 V. S. L. M. or V. S. Law Mag. United States Law 
 Magazine (Livingston's), New York. 
 
 TJ. S. R. United States Supreme Court Reports. 
 
 TJ. S. Reg. United States Register, Philadelphia. 
 
 TJ. S. R. S. United States Revised Statutes. 
 
 TJ. S. Rev. St. United States Revised Statutes. 
 
 TJ. S. S. C. Rep. United States Supreme Court Re- 
 ports. 
 
 V. S. St. at L. or V. S. Stat. United States Statutes 
 at Large. 
 
 V. S. St. Tr. United States State Trials (Whar- 
 ton's). 
 
 TJ. S. Sup. Ct. Rep. United States Supreme Court 
 Reporter. 
 
 Vim. L. Rec. Ulman's Lawyer's Record, New York. 
 
 Vlp. Ulpian's Fragments. 
 
 Vnderh. Torts. Underhill on Torts. 
 
 Vp. Ben. Pre. Upper Bench Precedents, tempore 
 Car. I. 
 
 Vp. Can. Upper Canada (see U. C). 
 
 Upt. Mar. W. & Pr. Upton on Maritime Warfare 
 and Prize. 
 
 Vrl. Trust. Urling on Trustees. 
 
 Vtah. Utah Reports. 
 
 V. Vermont; — Vermont Reports; — Virginia; — Vir- 
 ginia Reports ; — Versus. Victoria. Victorian. 
 
 V. A. C. or V. Adm. Vice-Admiralty Court 
 
 V. C. Vice-Chancellor. Vice-Chancellor's Court. 
 
 V. C. C. Vice-Chancellor's Court. 
 
 V. C. Rep. Vice-Chancellor's Reports, English. 
 
 V. L. R. Victorian Law Reports, Australia. (For 
 Victorian see Vict.) 
 
 V. N. Van Ness's Prize Cases. 
 
 V. O. De Verborum Obligationibus. 
 
 V. R. Vermont Reports. 
 
 V. S. De Verborum Significatione. 
 
 V. <£- B. Vesey & Beames' English Chancery Re- 
 ports. 
 
 V. & S. Vernon and Scriven's Reports, Irish 
 King's Bench. 
 
 Va. Virginia ; — Virginia Reports ; — Gilmer's Vir- 
 ginia Reports. 
 
 Va. Bar Assn. Virginia State Bar Association. 
 
 Va. Cas. Virginia Cases (by Brockenbrough 6 
 Holmes). 
 
 Va. Ch. Dec. Chancery Decisions, Virginia. 
 
 Va. L. J. Virginia Law Journal, Richmond. 
 
 Va. R. Virginia Reports ; — Gilmer's Virginia Re- 
 ports. 
 
 Val. Com. Valen's Commentaries. 
 
 Vail. Ir. L. Vallencey's Ancient Laws of Ireland. 
 
 Van Hay. Eq. Van Haythuysen's Equity Drafts- 
 man. 
 
 Van Hay. Mar. Ev. Van Haythuyer on Maritime 
 Evidence. 
 
 Van K. Van Koughnet's Reports, vols. 15-21 Upper 
 Canada Common Pleas. 
 
 Van. L. Vander Linden's Practice, Cape Colony. 
 
 Van N. or Van Ness. Van Ness's Prize Cases, 
 United States District Court New York. 
 
 Van Sant. Eq. Pr. Van Santvoord's Equity Prac- 
 tice. 
 
 Van Sant. PI. Van Santvoord's Pleadings. 
 
 Van Sant. Prec. Van Santvoord's Precedents. 
 
 Vanderstr. Vanderstraaten's Ceylon Reports. 
 
 Vatt. Vattel's Law of Nations. 
 
 Vatt.LaioNat.(orVattel). Vattel's Law of Na- 
 tions. 
 
 Vaug. or Vaugh. or Vaughan. Vaughan's English 
 Common Pleas Reports. 
 
 Vaux. Vaux's Recorder's Decisions, Philadelphia. 
 
 Vaz. Extrad. Vazelhes's Etude sur l'Extradition. 
 
 Ve. or Ves. Vesey's English Chancery Reports. 
 
 Ve. & B. or Ves. & B. Vesey & Beames's English 
 Chancery Reports. 
 
 Veaz. or Veazey. Veazey's Reports, vols. 36-46 Ver- 
 mont. 
 
 Vend. Ex. Venditioni Exponas. 
 
 Vent, or Ventr. Ventris's English Common Pleas 
 Reports ; — Ventris's English King's Bench Reports. 
 
 Ver. or Verm. Vermont Reports. 
 
 Vern. Vernon's Reports, English Chancery. 
 
 Vern. & Sc. or Vern. & Scr. or Vern. <£ Scriv. 
 Vernon & Scriven's Irish King's Bench Reports. 
 
 Verpl. Contr. Verplanck on Contracts. 
 
 Verpl. Ev. Verplanck on Evidence. 
 
 Ves. Vesey, Senior's Reports, English Chancery.
 
 ABBREVIATION 
 
 81 
 
 ABL. u.\ 
 
 Ves. Jr. or Ves. Jun. Vesey, Junior's Reports, Bng- i 
 llsh Chancery. 
 
 Ves.Jun.Supp. Supplement to Vesey, Jr.'s, Eng- 
 lish Chancery Reports, by Hovenden. 
 
 Ves. Sen. or Ves. Sr. Vesey, Sr.'s, English Chan- 
 cery Reports. 
 
 Ves. <l B. or Ves. & Bea. or Ves. & Beam. Vesey & 
 Beames's English Chancery Reports. 
 
 Vet. Ev.tr. Old Book of Enl 
 
 Vet. N. B. or V< I. Na. B. Old Natura Brevium. 
 
 Vez. Vezey's (Vesey's) English Chancery Reports. 
 
 Vic. or Vict. Queen Victoria. 
 
 Vtcat. or Vicat. Voc. Jut. Vocabularlum Jurisutrl- 
 usque, ex variis editis. 
 
 Vict. Queen Victoria. 
 
 Vict. C. S. Victorian Consolidated Statutes. 
 
 Vict. L. R. Victorian Law Reports, Colony of Vic- 
 toria, Australia. 
 
 L. R. ilin. Victorian Mining Law Reports. 
 
 Viet. L. T. Victorian Law Times, Melbourne. 
 
 Vict. lie;). Victorian Reports, Colony of Victoria. 
 
 Vict. Rev. Victorian Review. 
 
 Vict. St. Tr. Victorian State Trials. 
 
 T'i</. Eatr. Vidian's Entries. 
 
 Vil. tl Br. Vilas & Bryant's Edition of the Wis- 
 consin Reports. 
 
 Vi7as. Vilas's New York Criminal Reports. 
 Abr. Viner's Abridgment. 
 
 Vin. Supp. Supplement to Viner's Abridgment. 
 
 Vincens Leg. Com. Vincens's Legislation Commer- 
 ciale. 
 
 Vina. Vinnius. 
 
 Vint. Can. L. Vinton on American Canon Law. 
 
 Vic. Virgin's Reports, Maine. 
 
 Viry. Virginia (see Va.) ; — Virgin. 
 
 Virg. Cas. Virginia Cases. 
 
 Vt'r<7. L. J. Virginia Law Journal. 
 
 Virgin. Virgin's Reports, vols. 52-60 Maine ;— Vir- 
 ginia (see Va.). 
 
 Viz. Videlicet, That is to say. 
 
 Vo. Verbo. 
 
 Voet, Com. ad Pand. Voet, Commentarius ad Pan- 
 dectas. 
 
 Von Hoist Const. His. Von Hoist's Constitutional 
 History of the U. S. 
 
 Voor7i. Code. Voorhies's Code, New York. 
 
 VoorJi. Cr. Jur. Voorhles on the Criminal Juris- 
 prudence of Louisiana. 
 
 Vr. or Vroom. Vroom's Reports, New Jersey Law 
 Reports, vols. 30-5(5. 
 
 Vroom (G. D. W.). G. D. W. Vroom's Reports, 
 vols. 36-63 New Jersey Lav,. 
 
 Vroom (P. D.) P. D. Vroom's Reports, vols. 30-35 
 New Jersey Law. 
 
 Vs. Versus. 
 
 Vt. Vermont ; — Vermont Reports. 
 
 TV. King William ; thus 1 W. I. signifies the first 
 year of the reign of King William I. ;— Wheaton's 
 United States Supreme Court Reports ; — Wendell's 
 New York Reports;— Watts' Reports, Pennsylvania; 
 —Weekly ;— Wisconsin ; — Wyoming ; — Wright's Ohio 
 Reports ;— Statute of Westminster. 
 
 W. A. Western Australia. 
 
 TV. Bl. or TV. Bla. Sir William Blackstone's Eng- 
 lish King's Bench and Common Pleas Reports. 
 
 11'. C. C. Washington's United States Circuit Court 
 Reports. 
 
 TV. Coast Rep. West Coast Reporter. 
 
 TV. Ent. Winch's Book of Entries. 
 
 TV. H. Chron. Westminster Hall Chronicle, Lon- 
 don. 
 
 W. H. rf G. Welsby, Hurlstone and Gordon's Re- 
 ports, English Exchequer Reports, vols. 1-9. 
 
 TV. J. Western Jurist, Des Moines, Iowa. 
 
 W. Jo. or TV. Jones. Wm. Jones's Reports, English 
 Courts. 
 
 IV. Kcl. Wm. Kelynge's Reports, English King's 
 Bench and Chancery. 
 
 TV. /,. Gaz. Western Law Gazette Cincinnati, O. 
 
 TV. L. Jour. Western Law Journal, Cincinnati, O. 
 
 W.L.M. Western Law Monthly. Cleveland, O. 
 
 TV. L. R. Washington Law Reporter, Washington, 
 D. C. 
 
 TV. N. Weekly Notes, London. 
 TV. AT. Cas. Weekly Notes of Cases, Philadelphia. 
 Bouv.— 6 
 
 TV. P. Cos. Wollaston's English Bail Court (Prac 
 tlce) Cases. 
 
 TV. R. Weekly Reporter, Londoi 
 porter, Bengal ;— Wendell's New York 
 
 Bin Reports;— West's Repor;. 
 eery). 
 
 Vf. B. Calc. Southerland's Weekly Reporter, Cal- 
 cutta. 
 
 p. West's Reports temp. Hardwicke, Eng- 
 tancery. 
 b. W. Robinson's English Admiralty Re- 
 ft. Weekly Transcript Reports. New York. 
 Wright's Tenures. 
 
 ingtou Territory 
 
 It', la. West Virginia ; — West Virginia it 
 
 W. li'. <& A'B. Vict. Wyatt, Wl. 
 Reports, Victoria. 
 
 IV. IV. d- D. Willmore, Wollaston and Davison's 
 ts, English Queen's Bench. 
 
 TV. W.d-II. Willmore, Wollaston and Hodge's Re- 
 ports, English Queen's Bench. 
 
 W.&B.Dig. Walker & Bates's Digest, Ohio. 
 
 TV. di Buh. West & Buhler's Collection of Fut- 
 wahs, India. 
 
 TV. & C. Wilson & Courtenay's Scotch Appeal Cas- 
 es (see Wilson & Shaw). 
 
 W. if L. Dig. Wood & Long's Digest, Illinois. 
 
 TV. &M. Woodbury & Minot's United States Cir- 
 cuit Court Reports ;— William & Mary. 
 
 TV. £ S. Watts & Sergeant's Pennsylvania Re- 
 ports;— Wilson & Shaw's Scotch Appeal Cases. 
 
 IV. d llson and Shaw's Scotch Appeals, 
 
 English House of Lords. 
 
 W. & T. Eq. Ca. or TV. <£ T. L. C. White & Tudor's 
 Leading Cases in Equity. 
 
 TV. <£• IV. White & Wilson's Texas Court of Ap- 
 peals, Civil Cases. 
 
 TV. & TV. Vict. Wyatt & Webb's Victorian Reports. 
 
 TVa. Watts's Reports, Pennsylvania ;—W:: 
 
 Wadd. Dig. Waddilove's Digest of English Ec- 
 clesiastical Cases. 
 
 Wade Notice. Wade on the Law of Notice. 
 
 TVade Retro. L. Wade on Retroactive Laws. 
 
 Wait Act. & Def. Wait's Actions and Defence. 
 
 Wait Dig. Wait's Digest, New York. 
 
 TVat't Pr. Wait's New York Practice. 
 
 Wmt St. Pap. Wait's State Papers of the United 
 States. 
 
 Wid. Wallace (see Wall). 
 
 Will, by L. Wallis's Irish Reports, by Lyne. 
 
 Wal.Jr. Wallace's (J. W.) United States Circuit 
 Court Reports. 
 
 Wal. Sr. Wallace's (J. B.) United States Circuit 
 Court Reports. 
 
 . Iittilw. Wal ford on Railways. 
 
 Walker's Mississippi Reports ;— Walker's 
 Michigan Chancery Reports;— Walker's Reports, 
 vols. 25, 72-88 Texas;— Walker's Reports, vols. 1-10 
 Texas Civil Appeals ; — Walker's Reports, vols. 9C, 
 109 Alabama;— Walker's Pennsylvania Rep" 
 
 Walk. Am. L. Walker's Introduction to American 
 Law. 
 
 Walk. Bank. L. Walker on Banking Law. 
 
 Walk. Ch. or Walk. Ch. Cas. Walker's Chancery 
 Cases, Michigan. 
 
 Walk. Com. L. Walker's Theory of the Common 
 Law. 
 
 Walk. (Mich.). Walker's Reports. Michigan Chan- 
 cery. 
 
 TValfc. (Miss.). Walker's Reports, Mississippi Re- 
 port;, vol. 1. 
 
 '.-. (Pa.). Walker's Pennsylvania Reports. 
 
 Walk. (Tex.). Walker's Reports, Texas I: 
 vol. 25. 
 
 Wall:. Wills. Walker on Wills. 
 
 or. Walker's Reports, vols. 96, 109, Alabama ; 
 —Walker's Michigan Chancery Reports :— Walker's 
 ippi Reports ;— Walker's Pennsylvania Re- 
 ports .—Walker's Reports, vols. -5, 72-88 Texas;— 
 Walker's Reports, vols. 1-10 Texas Civil Appeals. 
 
 Wallace' States Supreme Court 
 
 Reports {—Wallace's (Sr.) United States Circuit 
 Court Reports; — Wallace's Philadelphia Reports; - 
 Wallis's Iri:h Chancery Reports.
 
 ABBREVIATION 
 
 82 
 
 ABBREVIATION 
 
 Wall. C. C. Wallace's United States Circuit Court 
 Ri ports, Third Circuit. 
 
 Wall. Jr. or Wall. Jun. Wallace, Junior's, Reports, 
 U. S. Circuit Court, 3d Circuit. 
 
 WoH. Pr. Wallace's Principles of the Laws of 
 Scotland. 
 
 Wall. Rep. Wallace on the Reporters ;— Wallace's 
 United States Supreme Court Reports. 
 
 Wall. S. C. Wallace's United States Supreme 
 Court Reports. 
 
 Wall. Sen. Wallace's (J. B.) United States Circuit 
 Court Reports. 
 
 Wallis. Wallis's Reports, Irish Chancery. 
 
 Wallis by L. Wallis's Irish Chancery Reports, by 
 Lyne. 
 
 Walsh. Walsh's Registry Cases, Ireland. 
 
 Ward. Warden's Reports, Ohio ;— Warden & 
 Smith's Reports, Ohio. 
 
 Ward, Leg. Ward on Legacies. 
 
 Ward Nat. Ward on the Law of Nations. 
 
 Ward. & Sm. Warden and Smith's Reports, Ohio 
 State Reports, vol. 3. 
 
 Warden. Warden's Reports, vols. 2, 4 Ohio State. 
 
 Warden d Smith. Warden & Smith's Reports, vol. 
 3 Ohio State. 
 
 Ware. Ware's Reports, United States District 
 Court, Maine. 
 
 Warr. Bla. Warren's Blackstone. 
 
 Warr. L. S. Warren's Law Studies. 
 
 Warth Code. West Virginia Code, 1899. 
 
 Warv. Abst. Warvelle on Abstracts of Title. 
 
 Wash. Washington State Reports. 
 
 Wash. Washington ; — Washington's Reports ; — 
 Washington's United States Circuit Court Reports; 
 —Washington's Virginia Reports ;— Washburn's Re- 
 ports, vols. 16-23 Vermont. 
 
 Wash. C. C. Washington's United States Circuit 
 Court Reports. 
 
 Wash. L. Rep. Washington Law Reporter, Wash- 
 ington, D. C. 
 
 Wash. Ter. Washington Territory Reports. 
 
 Wash. Ter. N. S. Allen's Washington Territory 
 Reports, New Series. 
 
 Wash. Ty. Washington Territory Reports. 
 
 Wash. (Va.). Washington's Reports, Virginia. 
 
 Wash. & Eaz. P. E. I. Washburton & Hazard's Re- 
 ports, Prince Edward Island. 
 
 Washb. Washburn's Reports, Vermont. 
 
 Washb. Cr. L. Washburn on Criminal Law. 
 
 Washb. Easem. Washburn on Easements and 
 Servitudes. 
 
 Washb. R. P. or Washb. Real Prop. Washburn on 
 Real Property. 
 
 Washburn. Washburn's Reports, vols. 16-23 Ver- 
 mont. 
 
 Wat. Watkins ; — Watson. 
 
 Wat. (C. G. H.). Watermeyer's Cape of Good Hope 
 Supreme Court Reports. 
 
 Wat. Cr. Dig. Waterman's Criminal Digest, Unit- 
 ed States. 
 
 Wat. Cr. Proc. Waterman's Criminal Procedure. 
 
 Wat. Jus. Waterman's Justice. 
 
 Wat. Set-Off. Waterman on Set-Off, etc. 
 
 Wat. Tres. Waterman on Trespass. 
 
 Watermeyer. Watermeyer's Cape of Good Hope 
 Supreme Court Reports. 
 
 Watk. Conv. Watkins's Conveyancing. 
 
 Watk. Copyh. Watkins's Copyholds. 
 
 Wats. Arb. .Watson on Arbitration. 
 
 Wats. Cler. Law. Watson's Clergyman's Law. 
 
 Wats. Comp. or Wats. Comp. Eq. Watson's Com- 
 pendium of Equity. 
 
 Wats. Const. Hist. Watson's Constitutional Histo- 
 ry of Canada. 
 
 Wats. Eq. Watson's Compendium of Equity. 
 
 Wats. Part. Watson on Partnership. 
 
 Wats. Sher. Watson on Sheriffs. 
 
 Watts. Watts's Pennsylvania Reports ; — Watts's 
 Reports, vols. 16-24 West Virginia. 
 
 Watts d S. or Watts & Ser. or Watts d Serg. Watts 
 & Sergeant's Pennsylvania Reports. 
 Web. Pat. Webster on Patents. 
 Web. Pat. Cos. Webster's Patent Cases, English 
 Courts. 
 
 Web. Tr. The Trial of Professor Webster for 
 Murder. 
 
 Webb. Webb's Reports, vols. 6-20 Kansas ;— \ 
 Webb's Reports, vols. 11--0 Texas Civil Appeals. 
 
 Webb, A'B. d W. Webb, A'Beckett & Williams's 
 Victorian Reports, Australia. 
 
 Webb, A'B. & W. Eq. Webb, A'Beckett and Wil- 
 liams's Equity Reports, Victoria. 
 
 Webb, A'B. & W. I. P. & M. Webb, A'Beckett 
 and Williams's Insolvency, Probate and Matrimo- 
 nial Reports, Victoria. 
 
 Webb, A'B. & W. Min. Webb, A'Beckett and Wil- 
 liams's Mining Cases, Victoria. 
 
 Webb. & D. or Webb & Duval. Webb & Duval's Re- 
 ports, vols. 1-3 Texas. 
 
 Webs. Webster. 
 
 Webs. Pat. Cos. Webster's Patent Cases, English 
 Courts. 
 
 Webst. Diet, or Webster. Webster's Dictionary. 
 
 Wedg. Gov. & Laws. Wedgwood's Government and 
 Laws of the U. S. 
 
 Week. Reptr. Weekly Reporter, London ; — Weekly 
 Reporter, Bengal. 
 
 Week. Trans. Repts. Weekly Transcript Reports, 
 New York. 
 
 Weekl. Cin. L. B. Weekly Cincinnati Law Bulle- 
 tin. 
 
 Weekl. Dig. Weekly Digest, New York. 
 
 Weekl. Jur. Weekly Jurist, Illinois. 
 
 Weekl. L. Record. Weekly Law Record. 
 
 Weekl. L. Rev. Weekly Law Review, San Fran- 
 cisco, Cal. 
 
 Weekl. No. Weekly Notes of Cases, London. 
 
 Weekl. No. Cos. Weekly Notes of Cases, Phila- 
 delphia. 
 
 Weekl. Reptr. Weekly Reporter, London. 
 
 Weekl. Trans. Repts. Weekly Transcript Reports, 
 New York. 
 
 Weeks Att. at Law or Weeks, Attys. at Law. 
 Weeks on Attorneys at Law. 
 
 Weeks D. A. Inj. Weeks, Damnum Absque Injuria. 
 
 Weeks Dep. Weeks on the Law of Deposition. 
 
 Weight. M. d L. Weightman's Marriage and Le- 
 gitimacy. 
 
 Weight. Med. Leg. Gaz. Weightman's Medico-Le- 
 gal Gazette, London. 
 
 Wei. Welsh's Irish Registry Cases. 
 
 Welf. Eq. PI. Welford on Equity Pleading. 
 
 Wells L. d F. Wells's Questions of Law and Facts. 
 
 Wells, Repl. Wells on Replevin. 
 
 Wells Res. Ad. & St. D. Wells on Res Adjudicata 
 and Stare Decisis. 
 
 Wells Sep. Pr. of Mar. Worn. Wells on Separate 
 Property of Married Women. 
 
 Wellw. Abr. Wellwood's Abridgment of Sea Laws. 
 
 Welsb., H. d G. or Welsby, H. d G. Welsby, Hurl- 
 stone & Gordon's Reports, English Exchequer Re- 
 ports, vols. 1-9. 
 
 Welsh. Welsh's Registry Cases, Ireland; — Welsh's 
 Irish Cases at Sligo;— Welsh's (Irish) Case of 
 James Feighny, 1838. 
 
 Welsh Reg. Cas. Welsh's Irish Registry Cases. 
 
 Wend. Wendell's Reports, New York Supreme 
 Court. 
 
 Wendt Mar. Leg. Wendt on Maritime Legislation. 
 
 Went. Ex. or Went. Off. Ex. Wentworth on Execu- 
 tors. 
 
 Went. PI. Wentworth on Pleading. 
 
 Wenz. Wenzell's Reports, vols. 60- — Minnesota. 
 
 Wesk. Ins. Weskett on Insurance. 
 
 West. West's Reports, English Chancery, tempore 
 Hardwicke. 
 
 West. West's Reports, English House of Lords ;— 
 West's Reports, English Chancery ;— Western Tithe 
 Cases ; — Weston's Reports, vols. 11-14 Vermont. 
 
 West. Aus. Western Australia. 
 
 West Ch. West's English Chancery Cases. 
 
 West Co. Rep. West Coast Reporter. 
 
 West Coast Rep. West Coast Reporter. 
 
 West. Confl. Westlake on Conflict of Laws. 
 
 West H. L. West's Reports, English House of 
 Lords. 
 
 West. Jur. Western Jurist, Des Moines, Iowa. 
 
 West. L. J. or West. Law Jour. Western Law Jour- 
 nal, Cincinnati, Ohio. 
 
 West. L. Mo. or West. Lata Mo. Western Law 
 Monthly, Cleveland, Ohio. 
 
 West. L. O. Western Legal Observer, Quincy, 111.
 
 ABBREVIATION 
 
 83 
 
 ABBREVIATION 
 
 West. L. T. Western Law Times. 
 
 West. Let;. Obs. Western Legal Observer, Quin- 
 cy, 111. 
 
 West. Rep. Western Reporter, St. Paul. 
 
 West Symb. West's Symbol-eographie. 
 
 West. T. Cas. Western's Tithes Cases. 
 
 West t. H. West's Reports, English Chancery 
 tempore Hardwieke. 
 
 West Va. West Virginia;— West Virginia Reports. 
 
 Westl. Priv. Int. Law or Weetlake Int. Private 
 Law. Westlake's Private International Law. 
 
 Westm. Statute of Westml 
 
 Westm. Rev. Westminster Review. 
 
 Weston. Weston's Reports, vols. 11-14 Vermont 
 
 Weth. (U. C). Wethey's Upper Canada Reports, 
 Queen's Bench. 
 
 Wh. Wheaton's United States Supreme Court Re- 
 ports ; — Wharton's Pennsylvania Reports;— Wheel- 
 er's New York Criminal Reports. 
 
 Wh. Cr. Cas. Wheeler's Criminal Cases, New 
 York. 
 
 Wh. d T. L. C. or Wh. d T. L. Cas. White and Tu- 
 dor's Leading Cases, Equity. 
 
 Whar. Wharton's Pennsylvania Reports. 
 
 Whar. Dig. Wharton's Digest, Pennsylvania. 
 
 Whar. St. Tr. Wharton's State Trials, United 
 States. 
 
 Whart. Wharton's Reports, Pennsylvania. 
 
 Whart. Ag. Wharton on Agency and Agents. 
 
 Whart. Confl. Wharton on Conflict of Laws. 
 
 Whart. Conv. Wharton's Conveyancing. 
 
 Whart. Cr. Law or Whart. Crim. Law. Wharton's 
 Criminal Law. 
 
 Whart. Ev. Wharton on Evidence in Civil Issues. 
 
 Whart. Horn. Wharton on Homicide. 
 
 Whart. Law Die. or Whart. Lex. Wharton's Law 
 Lexicon. 
 
 Whart. Neg. Wharton on Negligence. 
 
 Whart. (Pa.). Wharton's Pennsylvania Reports. 
 
 Whart. Prec. Wharton's Precedents of Indict- 
 ments. 
 
 Whart. St. Tr. or Whart. State Tr. Wharton's 
 State Trials of the United States. 
 
 Whart. d S. Med. Jur. or Whart. & St. Med. Jur. 
 Wharton & Stille's Medical Jurisprudence. 
 
 Wheat. Wheaton's United States Supreme Court 
 Reports. 
 
 Wheat. Cap. & Pr. Wheaton on Maritime Captures 
 and Prizes. 
 
 Wheat. Hist. L. of N. or Wheat. Hist. Law Nat. 
 Wheaton's History of the Law of Nations. 
 
 Wheat. Int. L. or Wheat. Int. Law. Wheaton's In- 
 ternational Law. 
 
 Wliccl. Wheeler's New York Criminal Cases ;— 
 Wheelock's Reports, vols. 32-37 Texas. 
 
 Wheel. Abr. Wheeler's Abridgment. 
 
 Wheel. Br. Cas. Wheeling Bridge Case. 
 
 Wheel. Cr. C. or Wheel. Cr. Cas. or Wheeler, Cr. 
 Cas. Wheeler's Criminal Cases, New York. 
 
 Wheel. Cr. Rcc. Wheeler's Criminal Recorder, 
 New York, vol. 1 Wheeler's Criminal Cases. 
 
 Whish. L. D. Whishaw's Law Dictionary. 
 
 Whishaw. Whishaw's Law Dictionary. 
 
 Whit. Eq. Pr. Whitworth's Equity Precedents. 
 
 Whit. Pat. Cas. Whitman's Patent Cases, United 
 States. 
 
 Whit. War P. Whiting on War Powers under the 
 Constitution. 
 
 Whitak. Liens. Whitaker on Lii 
 
 White. White's Reports, vols. 10-15 West Virginia; 
 —White's Reports, vols. 30-40 Texas Court of Ap- 
 peals ;— White, Scotch Justiciary Reports. 
 
 White, Coll. White's New Collection of the Laws, 
 etc., of Great Britain, France and Spain. 
 
 White L. L. White's Land Law of California. 
 
 W)i ite, New Recop. or White Nov. Recop. See 
 White, Recop. 
 
 White Rec. or White, Recop. White, New Recop- 
 ilacion. A New Collection of Laws and Local Or- 
 dinances of Great Britain, France, and Spain, Re- 
 lating to the Concessions of Land in Their Re- 
 spective Colonies, with the Laws of Mexico and Tex- 
 as on the Same Subjects. 
 
 White Supp. White on Supplement and Revivor. 
 
 White <£ T. L. Cas. White & Tudor's Leading Cases 
 in Equity. 
 
 White dW. White & Wlllson's Reports, vol. 142 
 Texas Civil Appeals. 
 
 Whitm. Lib. Cas. Whitman's Massachusetts Libel 
 Cases. 
 
 Wlntm. Pat. Cos. Whitman's Patent Cases. 
 
 Whitm. Pat. L. Whitman's Pat' 
 
 Whitm. Pat. Law Rev. Whitman's Patent Law Re- 
 view, Washington, D. C. 
 
 ey. Whitney's Land Laws, Tent: 
 y's Reports, vols. 81-41 
 ttaker's Codes, Ohio. 
 ry. 
 Wigram on Wills. 
 ' or Wightw. Wightwick's English Excheq- 
 ports. 
 
 Wight El. Cas. Wight's Election Cases, Scotland. 
 
 Wil. Williams (see Will. );— Wilson 
 
 Wile. Wilcox's Reports, Ohio. 
 
 Wile. Cund. Wilcox's Condensed Reports, Ohio. 
 
 Wile. Man. Corp. Wilcox on Municipal Corpora- 
 tions. 
 
 r. Wilcox's Reports, vol. 10 Ohio ;— Wilcox, 
 Pennsylvania. 
 
 Wilcoxi nd. Wilcox, Condensed Ohio Reports. 
 
 Wild. Int. L. Wildman's International Law. 
 
 Wild. S. C. d P. Wildman on Search, Capture and 
 Prize. 
 
 Wilde Sup. Wilde's Supplement to Barton's Con- 
 veyancing. 
 
 Wiklm. Int. Law. Wildman's International Law. 
 
 WilTc. Wilkinson's Texas Court of Appeals and 
 Civil Appeals ;— Wilkinson's Reports, Australia. 
 
 Wilk. Leg. Ang. Sax. Wilkins's Leges Anglo-Sax- 
 onica?. 
 
 Wilk. Lim. Wilkinson on Limitations. 
 
 Wilk. P. d M. Wilkinson, Paterson and Murray's 
 Reports, New South Wales. 
 
 Wilk. Prec. Wilkinson's Precedents in Convey- 
 ancing. 
 
 Wilk. Pub. Funds. Wilkinson on the Law Relat- 
 ing to Public Funds. 
 
 Wilk. Repl. Wilkinson on Replevin. 
 
 Wilk. Ship. Wilkinson on Shipping. 
 
 Wilk. & Mur. or Wilk. A Ovo. or Wilk. d Pat 
 Wilkinson, Owen, Paterson & Murray's New South 
 Wales Reports. 
 
 Will. Willes's English Common Pleas Reports ;— 
 Willson's Reports, vols. 29-30 Texas Appeal 
 vols. 1, 2 Texas Civil Appeals ;— Williams on Execu- 
 tors ; — See, also, Williams. 
 
 Will. Ann. Reg. Williams's Annual Register, New 
 York. 
 
 Will. Auct. Williams on the Law of Auctions. 
 
 Will. Bankt. L. Williams on the Bankrupt Law. 
 
 Will.-Bund8t.Tr. Willis-Bund's Cases from State 
 Trials. 
 
 Will. Just. Williams's Justice. 
 
 Will. L. D. Williams's Law Dictionary. 
 
 Will. (Mass.). Williams's Reports, Massachusetts 
 Reports, vol. 1. 
 
 Will. P. or Witt. (Pccre). Peere-Williams's Eng- 
 lish Chancery Reports. 
 
 Will. Per. Pr. Williams on Personal Property. 
 
 Will. Real As. Williams on Real Assets. 
 
 Will. Real Pr. Williams on Real Pro; 
 
 Will. Saund. Williams's Notes to Saunders's Re- 
 ports. 
 
 W~tll. (Vt.). Williams's Reports, Vermont. 
 
 Will. Wall, d Duv. Wlllmore, Wollaston & Davi- 
 son's English Queen's Beneh Reports. 
 
 Will., Woll. <£ Hodg. Wlllmore, Wollaston & Hodg- 
 es, English Queen's Bench Repo; 
 
 Witt. >C Br. Adm. Jur. Williams and Bruce on Ad- 
 miralty Jurisdiction. 
 
 WillardEq. Willard's Equity. 
 
 Willard Ex. Wlllard on Executors. 
 
 I Est. d Con. Willard's Real Estate 
 and Conveyancing. 
 
 . Const. Willcock, The Office of Constable. 
 
 Willc. L. Med. Pr. Will, ick'a Law Relating to the 
 : Pi ion. 
 
 W lie. Mun. Corp. or Willcock, Mun. Corp. Will- 
 cock on Municipal Corporate 
 
 Willea. Willes's Reports, English King's Bench 
 and Common Picas.
 
 ABBREVIATION 
 
 84 
 
 ABBREVIATION 
 
 William*. Peere-Williams's English Chancery Re- ; 
 ports ;— Williams's Reports, vols. 27-29 Vermont ;— 
 Williams's Reports, vol. 1 Massachusetts ;— Wil- 
 liams's Reports, vols. 10-12 Utah. 
 
 Williams, Common. Williams on Rights of Com- 
 mon. 
 Williams, Ex'rs. Williams on Executors. 
 Williams P. or Williams, Peere. Peere Williams's 
 Reports, English Chancery. 
 
 Williams, Pers. Prop. Williams on Personal Prop- 
 erty. 
 
 Williams, Saund. Williams's Notes to Saunders's 
 Reports. 
 Williams, Scis. Williams on Seisin. 
 Williams & B. Adm. Jur. Williams & Bruce on Ad- 
 miralty Jurisdiction. 
 Willis Eq. Willis on Equity Pleadings. 
 Willis Int. Willis on Interrogatories. 
 Willis Trust, or Willis, Trustees. Willis on Trus- 
 tees. 
 
 Willm. W. & D. Willmore, Wollaston and Davi- 
 son's Reports, English Queen's Bench. 
 
 Willm. W. & H. Willmore, Wollaston & Hodges's 
 English Queen's Bench Reports. 
 
 Wills Cir. Ev. or Wills, Circ. Ev. Wills on Circum- 
 stantial Evidence. 
 
 Willson. Willson's Reports, vols. 29-30 Texas Ap- 
 peals, also vols. 1, 2 Texas Court of Appeals, Civil 
 Cases. 
 
 Wilm. or Wilm. Op. or Wilm. Judg. Wilmot's 
 Notes of Opinions and Judgments, English King's 
 Bench. 
 
 Wils. Wilson's Reports, English King's Bench 
 and Common Pleas. 
 
 Wils. (Cal.). Wilson's Reports, California. 
 Wils. Ch. Wilson's Reports, English Chancery. 
 Wils. Ent. Wilson's Entries and Pleadings (same 
 as vol. 3 Lord Raymond). 
 Wils. Exch. Wilson's Reports, English Exchequer. 
 Wils. Fines & Bee. Wilson on Fines and Recov- 
 eries. 
 
 Wils. (Ind.). Wilson's Indiana Superior Court Re- 
 ports. 
 
 Wils. Ind. Gloss. Wilson, Glossary of Indian 
 Terms. 
 
 Wils. K. B. Sergeant Wilson's English King's 
 Bench Reports. 
 Wils. (Oreg.). Wilson's Reports, Oregon. 
 Wils. Pari. L. Wilson's Parliamentary Law. 
 Wils. Uses. Wilson on Uses. 
 
 Wils. & C. or Wils. & Court. Wilson and Courte- 
 nay's Reports, English House of Lords, Appeals 
 from Scotland. 
 
 Wils. & S. or Wils. & Sh. Wilson and Shaw's Re- 
 ports, English House of Lords, Appeals from Scot- 
 land (Shaw, Wilson & Courtenay). 
 
 Wilson. Wilson's English Common Pleas Reports; 
 —Wilson's English Chancery Reports;— Wilson's 
 English Exchequer Equity Reports ; — Wilson's In- 
 diana Superior Court Reports ; — Wilson's Reports, 
 vols. 1, 3 Oregon ;— Wilson's Reports, vols. 48-59 
 Minnesota. 
 
 Win. Winston's Law Reports, North Carolina;— 
 Winch's English Common Pleas Reports. 
 Win. Ent. Winch's Entries. 
 
 Win. Eq. Winston's Equity Reports, North Caro- 
 lina. 
 Winch. Winch's Reports, English Common Pleas. 
 Wing, or Wing. Max. Wingate's Maxims. 
 Wins. Winston's Reports, North Carolina. 
 Wins. Eq. Winston's Equity Reports, North Car- 
 olina. 
 
 Winst. or Winst. Eq. Winston's Law or Equity 
 Reports, North Carolina. 
 Wis. Wisconsin;— Wisconsin Reports. 
 Wis. Bar Assn. Wisconsin State Bar Association. 
 Wis. Leg. N. Wisconsin Legal News, Milwaukee. 
 With. Withrow's Reports, Iowa. 
 With. Corp. Cas. Withrow's American Corpora- 
 tion Cases. 
 Withroio. Withrow's Reports, vols. 9-21 Iowa. 
 Wkly. Notes Cas. (Pa.). Weekly Notes of Cases, 
 Philadelphia, Pennsylvania. 
 
 Wm. Bl. William Blackstone's Reports, English 
 Courts. 
 
 Wm. Rob. William Robinson's New Admiralty 
 Reports, English. 
 
 Wnis. Williams (see Will.). 
 
 Wms. Ann. Reg. Williams's Annual Register, New 
 York. 
 Wms. Auct. Williams on the Law of Auctions. 
 Wms. Ex. Williams on Executors. 
 Wms. Just. Williams's Justice. 
 Wms. L. D. Williams's Law Dictionary. 
 Wms. (Mass.). Williams's Reports, Massachusetts 
 Reports, vol. L 
 
 Wms. Notes. Williams's Notes to Saunders' Re- 
 ports. 
 
 Wms. P. or Wms. Peere. Peere Williams's Re- 
 ports, English Chancery. 
 
 Wms. Peere. Peere-Williams's English Chancery 
 Reports. 
 
 Wms. Per. Pr. Williams on Personal Property. 
 
 Wms. Real As. Williams on Real Assets. 
 
 Wms. Real Pr. Williams on Real Property. 
 
 Wms. Saund. Williams's Notes to Saunders' Re- 
 ports. 
 
 Wms. Vt. Williams's Reports, vols. 27-29 Vermont 
 
 Wms. & Br. Adm. Jur. Williams and Bruce on 
 Admiralty Jurisdiction. 
 
 Wol. Wollaston's English Bail Court Reports; — 
 Wolcott's Reports, vol. 7 Delaware Chancery. 
 
 Wolf. Inst. Wolffius's Institutiones Juris Naturae 
 et Gentium. 
 
 Wolf. & B. Wolferstan and Bristow's Election 
 Cases. 
 
 Wolf. & D. Wolferstan and Dew's Election Cases. 
 
 Wolff, Dr. de la Nat. Wolffius, Droit de la Nature. 
 
 Wolff. Inst, or Wolff. Inst. Nat. Wolffius, Institu- 
 tiones Juris Naturae et Gentium. 
 
 Wolffius or Wolffius, Inst. Wolffius, Institutiones 
 Juris Naturae et Gentium. 
 
 Woll. or Woll. P. C. Wollaston's English Bail 
 Court Reports (Practice Cases). 
 
 Wood. Woods's United States Circuit Court Re- 
 ports;— Wood's English Tithe Cases. 
 
 Wood Civ. L. Wood's Institutes of the Civil Law. 
 
 Wood Com. L. Wood's Institutes of the Common 
 Law. 
 
 Wood Conv. Wood on Conveyancing. 
 
 Wood Deer. Wood's (Decrees in) Tithe Cases. 
 
 Wood Fire Ins. Wood on Fire Insurance. 
 
 Wood (H.). Hutton Wood's Decrees in Tithe Cas- 
 es, English. 
 
 Wood, Ins. Wood on 'Fire Insurance; — Wood's In- 
 stitutes of English Law. 
 
 Wood, Inst, or Wood, Inst. Com. Law. Wood's In- 
 stitutes of the Common Law. 
 
 Wood Inst. Eng. L. Wood's Institutes of English 
 Law. 
 
 Wood. Lect. Wooddeson's Lectures on Laws of 
 England. 
 
 Wood Man. Wood on Mandamus. 
 
 Wood Mast. & St. Wood on Master and Servant. 
 
 Wood Mayne Dam. Wood's Mayne on Damages. 
 
 Wood Nuis. Wood on Nuisances. 
 
 Wood Ti. Cas. Wood's Tithe Cases. 
 
 Wood. & M. or Woodb. & M. Woodbury & Minot's 
 United States Circuit Court Reports. 
 
 Woodd. Jur. Wooddeson's Elements of Jurispru- 
 dence. 
 
 Woodd. Lect. Wooddeson's Lectures on the Laws 
 of England. 
 
 Woodf. Cel. Tr. Woodfall's Celebrated Trials. 
 
 Woodf. L. & T. or Woodf. Landl. & Ten. Woodfall 
 on Landlord and Tenant. 
 
 Woodf. Pari. Deb. Woodfall's Parliamentary De- 
 bates. 
 
 Woodm. Cr. Cas. Woodman's Reports of Thacher's 
 Criminal Cases, Massachusetts. 
 
 Woodm. & T. on For. Med. Woodman and Tidy on 
 Forensic Medicine. 
 
 Woods or Woods C. C. Woods's Reports, United 
 States Circuit Courts, 5th Circuit. 
 
 Woodw. Dec. Pa. Woodward's Common Pleas De- 
 cisions, Pennsylvania. 
 
 Wool. Woolworth's United States Circuit Court 
 Reports ;— Woolrych. 
 
 Wool. C. C. Woolworth's Reports, United States 
 Circuit Courts, 8th Circuit (Fuller's Opinions). 
 
 Woolr. Com. Woolrych on Commons. 

 
 ABBREVIATION 
 
 8 
 
 o 
 
 ABBREVIATION' 
 
 Woolr. Comm. L. Woolrycb on Commercial Law. 
 
 Woolr. P. W. Woolrycb on Party Walls. 
 
 Woolr. 8ev). Woolrych on Sewers. 
 
 Woolr. Waters. Woolrych on Law of Waters. 
 
 Woolr. Ways. Woolrych on Law of Ways. 
 
 Woolr. Window L. Woolrych on Law of Window 
 Lights. 
 
 Woofs. Div. Woolsey on Divorce. 
 
 Wools. Int. L. Woolsey's International Law. 
 
 Wools. Pol. Science or Woolsey, Polit. Science. 
 Woolsey's Political Science. 
 
 Woolw. Woolworth's United States Circuit Court 
 Reports ;— Wool .vjrtli's Reports, vol. 1 Nebraska. 
 
 Worcester. Worcester, Dictionary of the English 
 Language. 
 
 Word. Elect. Wordsworth's Law of Election. 
 
 Word. s. or Words. Elect. Cos. Words- 
 
 worth's Election Cases. 
 
 Word. Min. Wordsworth on the Law of Mining. 
 
 Worth. Jar. Worthington on the Powers of Ju- 
 ries. 
 
 Worth. Free. Wills. Worthington's Precedents for 
 Wills. 
 
 Wr. Wright (see Wright) ;— Wright's Reports, 
 vols. 37-50 Pennsylvania State. 
 
 Wr. Ch. Wright's Chancery Reports, Ohio. 
 
 Wr. Cr. Consp. Wright on Criminal Conspiracies. 
 
 Wr.N.P. Wright's Nisi Prlus Reports, Ohio. 
 
 Wr. Ohio. Wright's Chancery Reports, Ohio. 
 
 Wr. Pa. Wright's Reports, Pennsylvania State 
 Reports, vols. 37-50. 
 
 Wr. Ten. Wright on Tenures. 
 
 Wri. or Wright. Wright's Reports, vols. 37-50 
 Pensylvania State;— Wright's Ohio Reports. 
 
 itN.P. Wright's Nisi Prius Reports, Ohio. 
 
 Wright, Ten. Wright on Tenures. 
 
 Wy. Wyoming; — Wyoming Reports; — Wythe's 
 Virginia Chancery Reports. 
 
 Wy. Die. Wyatt's Dickens's Chancery Reports. 
 
 Wyatt P. R. Wyatt's Practical Register in Chan- 
 cery. 
 
 Wyatt, W. d A'B. Wyatt, Webb and A'Beckett's 
 Reports, Victoria. 
 
 Wyatt, W. d A'B. Eq. Wyatt, Webb and A'Beck- 
 ett's Equity Reports, Victoria-. 
 
 Wyatt, W. d A'B. I. P. d M. Wyatt, Webb and 
 A'Beckett's Insolvency, Probate and Matrimonial 
 Reports, Victoria. 
 
 Wyatt, W. d A'B. Min. Wyatt, Webb and A'Beck- 
 ett's Mining Cases, Victoria. 
 
 Wyatt d W. Wyatt and 'Webb's Reports, Victoria. 
 
 Wyatt d W. Eq. Wyatt and Webb's Equity Re- 
 ports, Victoria. 
 
 Wyatt & W. I. P. & M. Wyatt and Webb's Insol- 
 vency, Probate and Matrimonial Reports, Victoria. 
 
 Wyatt & W. Min. Wyatt & Webb's Mining Cases, 
 Victoria. 
 
 Wyatt & Webb. Wyatt & Webb's Reports, Vic- 
 toria. 
 
 Wym, or Wyman. Wyman's Reports, India. 
 
 Wyn. or Wynne, or Wynne Bov. Wynne's Bovill's 
 Patent Cases. 
 
 Wyo. Wyoming ;— Wyoming Reports. 
 
 Wyo. T. Wyoming Territory. 
 
 Wythe or Wythe Ch. Wythe's Virginia Chancery 
 Reports. 
 
 Y. Yeates's Pennsylvania Reports. 
 
 Y. li. Year Book, English King's Bench, etc. 
 
 }'. B. Ed. 1. Year Books of Edward I. 
 
 y. B. P. 1, Edw. 11. Year Books, Part 1, Edward 
 II. 
 
 y. B. S. C. Year Books, Selected Cases, 1. 
 
 y. L. R. York Legal Record. 
 
 y. & C. Younge &. Collyer's English Chancery or 
 Exchequer Reports. 
 
 F, d 0. C. C. Younge and Collyer's Chancery Cas- 
 es, English. 
 
 y. <£• J. Younge & Jervis's English Exchequer Re- 
 ports. 
 
 l r . £ J. Younge and Jervis's Reports, English Ex- 
 chequer. 
 
 Yale Law J. Yale Law Journal. 
 
 Yates Scl. Cos. Yates's New York Select Cases. 
 
 Yea. Yeates's Pennsylvania Reports. 
 
 Yearo. Year Book, English King's Bench, etc. 
 
 Yearb.P.7,Hcn.Vl. Year Books, Part 7, 1. 
 ry VI. 
 
 Ycates. Yeates's Reports, Pennsylvania. 
 
 Yel. or Yelv. Yelverton's English King's 
 Reports. 
 
 Yerg. Yerger's Tennessee Reports. 
 Voung (see You.). 
 
 Fool Waste. Yool on Waste, Nuisance and 
 
 York Ass. Clayton'. | Vork Assizes). 
 
 York Leg. Bee. York ord. 
 
 You. Younge's English Exchequer Equity Re- 
 ports. 
 
 low. d Coll. Ch. Younge & Collyer's EngliFh Chan- 
 porta. 
 
 You. d Coll. Ex. Younge & Collyer'B Engli: 
 Equity Imports. 
 i Jerv. Younge & Jervis's English Exchequer 
 Reports. 
 
 Young. Young's Reports, vols. 31-47 M 
 
 Young Adm. Young's Nova Scotia Ad 
 Cases. 
 
 p Adm. Dec. Young's Admiralty Decisions. 
 M. L. Cas. Young's Maritime Law Cases, 
 English. 
 
 Young, Naut. Diet. Young, Nautical Dictionary. 
 
 Younge. Younge's English Exchequer Equity Re- 
 ports. 
 
 Younge d Coll. Younge and Collyer's Reports, 
 English Exchequer Equity. 
 
 Younge d Coll. Ch. Younge's & Collyer's English 
 Chancery Cases. 
 
 Younge d Coll. Ex. Younge & Collyer's English 
 Exchequer Equity R. ports. 
 
 <e d J. or Younge d Jr. Younge &. JerVis, 
 English Exchequer. 
 
 Yule. Yukon Territory. 
 
 Zab. Zabriskie's New Jersey Law Reports. 
 
 Zach. Dr. Civ. Zachariae Droit Civil Francals. 
 
 Zone. Zane's Reports, vols. 4-9 Utah. 
 
 Zinn Ca. Tr. Zinn's Select Cases in the Law of 
 Trusts. 
 
 Zinn, L. C. Zinn's Leading Cases on Trn 
 
 Zouch Adm. Zouch's Admiralty Jurisdiction. 
 
 ABBREVIATORS. Eccl. Law. O 
 whose duty it is to assist in drawing up the 
 Pope's briefs, and reducing petitions into 
 proper form, to be converted into Papal 
 Bulls. 
 
 ABBROCHMENT. Old Eng. Law. The 
 forestalling of a market or fair. 
 
 ABBUTTALS. See Abuttals. 
 
 ABDICATION. A simple renunciation of 
 an office; generally understood of a supreme 
 ollice. 
 
 James II. of England, Charles V. of Germany, 
 and Christiana. Queen of Sweden, are said to have 
 ed. When James II. of England left the 
 kingdom, the Commons voted that he had aba 
 the government, and that thereby the throne had 
 become vaeant. The House of Lords preferred the 
 word deserted: but the Commons thought It not 
 comprehensive enough, for then the king might 
 i he liberty of returning. 
 
 It was also declared that abdication meant more 
 than desertion and amounted to a forfeiture by 
 acts and deeds of which the desertion was n part. 
 In England, the constitutional relation between the 
 crown and the nation the nature of a 
 
 contract, the king cann without the con- 
 
 sent of parliament. Th 1 Lords finally as- 
 
 sented to the word aid. 
 
 ABDITORIUM. An abditory or hiding 
 place, to hide and presi 
 3 . Jacob. 
 
 ABDUCTION. Forcibly taking away a 
 man's wife, his child, or his ward. 
 Com. 139 l li ; State v. George, *j:j X. C. 567.
 
 ABDUCTION 
 
 86 
 
 ABDUCTION 
 
 The unlawful taking or detention of any 
 female for purposes of marriage, concubin- 
 age, or prostitution. 4 Steph. Com. 84. 
 
 In many states this offence is created by 
 statute aud in most cases applies to females 
 under a given age. The definitions of the 
 crime differ in terms, but not in general re- 
 sults. They usually forbid the taking away 
 or detaining or enticing of a female under a 
 specified age, for purposes of concubinage or 
 prostitution. In Minnesota the taking away 
 for the purpose of marriage under the age of 
 15 is forbidden; and the statute is valid al- 
 though some females are authorized by the 
 law of that state to marry at that age; State 
 v. Sager, 99 Minn. 54, 10S N. W. 812. 
 
 The important element of the offence is the 
 taking for the unlawful purpose, which is 
 accomplished when the female is removed 
 from the custody of parents or others having 
 control of her, by means of any device, en- 
 ticement or persuasion; State v. Tucker, 72 
 Kan. 481, 84 Pac. 126. Unlawful detention 
 and intention of having carnal knowledge 
 are the necessary facts; Com. v. Littrell, 4 
 Ky. L. Rep. 251. 
 
 In some states the fact that a female tak- 
 en for concubinage was not chaste is no de- 
 fence; State v. Johnson, 115 Mo. 480, 22 S. 
 W. 463; People v. Dolan, 96 Cal. 315, 31 Pac. 
 107; the law presumes a woman's previous 
 life to have been chaste, and the burden of 
 proof to show otherwise rests on the de- 
 fendant; Slocum v. People, 90 111. 274; Peo- 
 ple v. Parshall, 6 Park. Cr. (N. Y.) 129 ; Car- 
 penter v. People, 8 Barb." (N. Y.) 603; State 
 v. Jones, 191 Mo. 653, 90 S. W. 465; State v. 
 Bobbst, 131 Mo. 328, 32 S. W. 1149. 
 
 The offence is complete when there is a 
 criminal intent at the time of the taking 
 away, though there may be a subsequent 
 purpose to marry; State v. Adams, 179 Mo. 
 334, 78 S. W. 588 ; State v. Sager, 99 Minn. 
 54, 108 N. W. 812. 
 
 Ignorance of the girl's age is no defence; 
 Riley v. State (Miss.) 18 South. 117; Tores 
 v. State (Tex. Cr. App.) 63 S. W. 880; nor is 
 her request; Griffin v. State, 109 Tenn. 17, 70 
 S. W. 61; State v. Bussey, 58 Kan. 679, 50 
 Pac. 891 ; nor that he believed and with good 
 reason that she was over the statutory age; 
 L. R. 2 C. C. 154 ; Beckham v. Nacke, 56 Mo. 
 546; State v. Ruhl, 8 la. 447 ; nor the early 
 abandonment of the relation and the return 
 of the girl to her father with the man's as- 
 sistance; State v. Neasby, 188 Mo. 467, 87 S. 
 W. 468. It must appear that it was against 
 her will; Hoskins v. Com., 7 Ky. L. Rep. 41; 
 State v. Hromadko, 123 la. 665, 99 N. W. 
 560. 
 
 It is stated to be the better opinion, that 
 if a man marries a woman under age, with- 
 out the consent of her father or guardian, 
 that act is not indictable at common law; 
 but if children are taken from their parents 
 or guardians, or others intrusted with the 
 care of them, by any sinister means, either 
 
 by violence, deceit, conspiracy, or any cor- 
 rupt or improper practices, as by intoxica- 
 tion, for the purpose of marrying them, 
 though the parties themselves consent to the 
 marriage, such criminal means will render ^ 
 the act an offence at common law; 1 East," 
 PI. Cr. 458; 1 Rus. Cr. 9t>2; Rose. Cr. Ev. 
 260. 
 
 A mere attempt to abduct is not sufficient ; 
 People v. Parshall, 6 Park. Cr. (N. Y.) 129. 
 
 Solicitation or inducement is sufficient, 
 and the taking need not be by force ; People 
 v. Seeley, 37 Hun (N. Y.) 190; Slocum v. 
 People, 90 111. 274; People v. Carrier, 46 
 Mich. 442, 9 N. W. 487. 
 
 The remedy for taking away a man's wife was 
 by a suit by the husband for damages, and the 
 offender was also answerable to the king; 3 Bla. 
 Com. 139. 
 
 See Kidnapping ; Entice ; and as to 
 whether criminals abducted from another 
 state may be prosecuted, see Fugitive Fbom 
 Justice ; Extradition. 
 
 Civil Action. At common law the father 
 had no right of civil action for the abduc- 
 tion of a child, except in case of the heir, in 
 which case there was an action because of 
 the interest in his marriage ; Cro. Eliz. 770 ; 
 but afterwards the right of action was sus- 
 tained upon the theory of loss of services ; 1 
 Wood. Lect. 270; 3 Bla. Com. 140; and on 
 that ground it has been generally recognized 
 in this country ; Caughey v. Smith, 47 N. Y. 
 244; Wodell v. Coggeshall, 2 Mete. (Mass.) 
 89, 35 Am. Dec. 391 ; Hills v. Hobert, 2 Root 
 (Conn.) 4S; Plummer v. Webb, 4 Mas. 380, 
 Fed. Cas. No. 11,233; Cutting v. Seabury, 1 
 Sprague 522,. Fed. Cas. No. 3,521 ; Steele v. 
 Thacher, 1 Ware (Dav. 91) 85, Fed. Cas. No. 
 13,348; Kirkpatrick v. Lockhart, 2 Brev. 
 (S. C.) 276 ; and the action lies by one stand- 
 ing in loco parentis, as the grandfather of an 
 illegitimate child who has assumed the care 
 of it; Moritz v. Garnhart, 7 Watts (Pa.) 
 302, 32 Am. Dec. 762. The proper form of 
 action is in some states held to be trespass 
 on the case; Sargent v. Mathewson, 38 N. 
 H. 54; Jones v. Tevis, 4 Litt. (Ky.) 25, 14 
 Am. Dec. 98; in others, trespass vi et armis; 
 Vaughan v. Rhodes, 2 McCord (S. C.) 227, 13 
 Am. Dec. 713; Schoul. Dom. Rel. 354. Ex- 
 emplary damages may be recovered; Magee 
 v. Holland, 27 N. J. L. 86, 72 Am. Dec. 341 ; 
 Stowe v. Heywood, 7 Allen (Mass.) 118; and 
 mental pain inflicted on the child may be 
 considered; Brown v. Crockett, 8 La. Ann. 
 30. It is no defence that the abducted girl 
 and her whole family were of loose and im- 
 moral character; Dobson v. Cothran, 34 S. 
 C. 518, 13 S. E. 679. The right of action of 
 the mother after the death of the father has 
 been doubted, but is said to be sustained by 
 the better opinion ; 13 Am. Dec. 716, n. ; see 
 also Com. v. Murray. 4 Bin. (Pa.) 487, 5 Am. 
 Dec. 412; Coon v. Moffet, 3 N. J. Law 583, 
 4 Am. Dec. 405. 
 
 ABEARANCE. Behavior; as a recogni-
 
 ABEARANCE 
 
 87 
 
 ANCE 
 
 zance to be of good abearance, signifies to be 
 of good behavior. 4 Bla. Com. 251, 256. See 
 Penna. Register 377, where William Penn, 
 sitting judicially, used the term. 
 
 ABEREMURDER. In Old Eng. Law. An 
 apparent, plain, or downright murder. It 
 was used to extinguish a wilful murder from 
 chance-medley, or manslaughter. SpeL; Cow- 
 ell; Blount. 
 
 ABET. To encourage or set another on to 
 commit a crime. This word is always ap- 
 plied to aiding the commission of a crime. 
 To abet another to commit a murder, is to 
 command, prucure, or counsel him to commit 
 it. Old Nat Brev. 21; Co. Litt. 475. See 
 Aiding and Abetting. 
 
 ABETTOR. An instigator, or setter on; 
 one who promotes or procures the commis- 
 sion of a crime, old Nat. Brev. 21. 
 
 The distinction between abettors and accessaries 
 Is the presence or absence at the commission of the 
 crime ; Cowell ; Fleta, lib. 1, cap. 34. Presence and 
 participation are necessary to constitute a person 
 an abettor; 4 Sharsw. Bla. Com. 33; Russ. & R. 
 99; 9 Bingh. N. C. 440; Green v. State, 13 Mo. 382; 
 Connaughty ▼. State, 1 Wis. 159, 60 Am. Dec. 370; 
 White v. People, 81 111. 333 ; Doan v. State, 26 Ind. 
 495; King v. State, 21 Ga. 220. 
 
 ABEYANCE (Fr. abbayer, to expect). 
 In expectation, remembrance, and contempla- 
 tion of law; the condition of a freehold 
 when there is no person in being in whom it 
 is vested. 
 
 In such cases the freehold has been said to be in 
 nubibus (in the clouds), in pendenti (in suspen- 
 sion), and in gremio legis (in the bosom of the 
 law). It has been denied by some that there is 
 such a thing as an estate In abeyance ; Fearne, 
 Cont. Rem. 513. See also the note to 2 Sharsw. 
 Bla. Com. 107; 1 P. Wms. 516; 1 Plowd. 29. 
 
 The law requires that the freehold should 
 never, if possible, be in abeyance. Where 
 there is a tenant of the freehold, the remain- 
 der or reversion in fee may exist for a time 
 without any particular owner, in which case 
 it is said to be in abeyance; Lyle v. Rich- 
 ards, 9 S. & R. (Pa.) 3C.7 ; 3 Plowd. 29 a, b, 
 35 a; 1 Washb. R. P. 47. 
 
 It is a maxim of the common law that a 
 fee cannot be in abeyance. It rests upon 
 reasons that now have no existence, and it 
 is not now of universal application. But if 
 it were, being a common-law maxim, it must 
 yield to statutory provisions inconsistent 
 with it; Wallach v. Van Riswick, 92 U. S. 
 212, 23 L. Ed. 473. 
 
 A glebe, parsonage lands, may be in abey- 
 ance; Terrett v. Taylor, 9 Cra. (U. S.) 47, 3 
 L. Ed. 650; Weston v. Hunt, 2 Mass. 500; 
 1 Washb. R. P. 4S; or a grant of land to 
 charity; Town of Pawlet v. Clark, 9 Cra. 
 ii . s.i 292, 332, 3 L. Ed. 735. So may the 
 franchise of a corporation ; Trustees of Dart- 
 mouth College v. Woodward, 4 Wheat. (U. S.) 
 691, 4 L. Ed. 629. So, too, personal proper- 
 ty may be in abeyance or legal sequestration, 
 as in case of a vessel captured at sea from 
 its captors until it becomes invested with the 
 character of a prize ; 1 Kent 102 ; 1 C. Rob. 
 
 Adm. 139 ; 3 id. 97, n. ; or tbe rights of prop- 
 erty of a bankrupt, pending adju ation; 
 Bank v. Sherman. 101 I , . Kd. 
 
 866. See Dillingham v. Snow, 5 M 
 Jewett v. Burroughs, 15 Mass. 4G4. 
 
 ABIATICUS (Lat). A son's son; a 
 OD in the male line. Spel. B 
 spelled Aviaticus. Du Cange, At 
 
 ABIDE. To accept the consequences of; 
 to rest satisfied with. With rel to an 
 
 order, judgment, or decree of a court, to 
 form, to execute. Taylor v. Hughes, : I 
 (Me.) 433; Hodge v. Hodgdon, 8 I 
 (Mass.) 294; Jackson v. State, 30 Kan. 
 Pac. 317; Petition of Griswold, 13 R. I. 125. 
 Where a statute provides for a recognizance 
 "to abide the judgment of the court," one 
 conditioned "to aicait the action of the court" 
 is not sufficient; Wilson v. State, 7 Tex. 
 App. 38. 
 
 To abide by an award. To await the 
 award without revoking the submission. It 
 does not mean to "acquiesce in" or "not dis- 
 pute," in the sense of not being at liberty to 
 contest the validity of the award when 
 made; Hunt v. Wilson, 6 N. H. 36; Quimby 
 v. Melvin, 35 N. H. 198; Marshall v. Reed, 
 4S N. H. 36, 40. 
 
 To abide the decision. An agreement in a 
 cause of partition "to abide the decision" of 
 a suit in equity involving the title to the 
 same lands did not mean to postpone tl ■ 
 mer suit until a final decree in i 
 but only that the partition should he In ac- 
 cordance with the title as determined by it: 
 Hodges v. Pingree, 10S M 
 
 To abide and satisf;/ is used to express the 
 execution or performance of a judgment or 
 order by carrying it into complete effect : 
 Erickson v. Eider, 34 Minn. 371, 25 N. W. 
 804. 
 
 ABIDING BY. In Scotch Law. A judicial 
 declaration that the party abides by the deed 
 on which he founds, in an action where the 
 deed or writing is attacked as forged. Un- 
 less this be done, a decree that the deed Is 
 false will be pronounced. Pat Comp. It 
 has the effect of pledging the party to stand 
 the consequences of founding on a i 
 deed. Bell, Diet 
 
 ABIDING CONVICTION. A definite con- 
 viction of guilt derived from a thorough ex- 
 amination of the whole case. Hopt v. Utah, 
 120 U. S. 439, 7 Sup. Ct 614, 30 L. Ed. 708. 
 
 ABIGEATORES. See Aiigeus. 
 
 ABIGEATUS. The offence of driving 
 away and stealing cattle in numbers. See 
 ABIQEtJS. 
 
 ABIGEI. See Aiigeus. 
 
 ABIGERE. See Abk.kus. 
 
 ABIGEUS (I. at. aibig&re). One who steals 
 cattle in numbers. 
 
 This is the common word used to denote a stealer 
 of cattle in large numbers, which latter circum-
 
 ABIG EUS 
 
 88 
 
 ABJURATION 
 
 stance distinguishes the abigeus from the fur, who 
 was simply a thief. He who steals a single animal 
 may be called fur (q. v.) ; he who steals a flock or 
 herd is an abigeus. The word is derived from 
 abigere, to lead or drive away, and is the same in 
 signification as Abactor (q. v.), Abigcatores, Abiga- 
 tores, Abigei. Du Cange; Guyot, Rep. Univ.; 4 
 Bla. Com. 239. 
 
 A distinction is also taken by some writers de- 
 pending upon the place whence the cattle are tak- 
 en ; thus, one who takes cattle from a stable is 
 called fur. Calvinus, Lex, Abigei. 
 
 ABILITY. When the word is used in stat- 
 utes, it is usually construed as referring to 
 pecuniary ability, as in the construction of 
 Lord Tenterden's Act (q. v.) ; 1 M. & W. 101. 
 
 A Wisconsin Act (1885), making a husband 
 "being of sufficient ability" liable lor the sup- 
 port of an abandoned wife, contemplates as 
 well earning capacity as property actually 
 owned ; State v. Witham, 70 Wis. 473, 35 
 N. W! 934; a contrary view was taken in 
 Washburn v. Washburn, 9 Cal. 475. 
 
 ABJUDICATIO (Lat. abjudicare). A re- 
 moval from court. Calvinus, Lex. It has 
 the same signification as foris-jiidicatio both 
 in the civil and canon law. Co. Litt. 100 6. 
 Calvinus, Lex. 
 
 Used to indicate an adverse decision in a 
 writ of right: Thus, the land is said to be 
 abjudgcd from one of the parties and his 
 heirs. 2 Poll. & Maitl. 62. 
 
 ABJURATION (Lat, abjuratio, from ab- 
 jurare, to forswear). A renunciation of al- 
 legiance, upon oath. 
 
 In Am. Law. Every alien, upon application 
 to become a citizen of the United States, 
 must declare on oath or affirmation before 
 the court where the application is made, 
 amongst other things, that he doth absolute- 
 ly and entirely renounce and abjure all al- 
 legiance and fidelity which he owes to any 
 foreign prince, state, etc., and particularly, 
 by name, the prince, state, etc., whereof he 
 was before a citizen or subject. Rawle, 
 Const. 93; Rev. Stat. U. S. § 2165. 
 
 In Eng. Law. The oath by which any per- 
 son holding office in England was formerly 
 obliged to bind himself not to acknowledge 
 any right in the Pretender to the throne of 
 England ; 1 Bla. Com. 308 ; 13 and 14 W. Ill, 
 c. 6, repealed by 30 and 31 Vic. c. 59. 
 
 It also denotes an oath abjuring certain doctrines 
 of the church of Rome. 
 
 In the ancient English law, it was a renunciation 
 of one's country and taking an oath of perpetual 
 banishment. A man who had committed a felony, 
 and- for safety fled to a sanctuary, might within 
 forty days confess and take the oath of abjuration 
 and perpetual banishment ; he was then transport- 
 ed. This was abolished in 1624; Ayliffe, Pareg. 14; 
 Burr. L. Die, Abjuration of the Realm; ^ 4 Bla. 
 Com. 332. 
 
 But the doctrine of abjuration has been referred 
 to, at least, in much later times ; 4 Sharsw. Bla. 
 Com. 56, 124, 332; 11 East 301; 2 Kent 156, n. ; 
 Termes de la Ley. 
 
 In medieval times, every consecrate^ .'-V rch was 
 a sanctuary. If a male?'- Uor took refu^r*-, therein, 
 he could not be extracte he had a choice between 
 abjuring the realm and 3-ubmitting to trial. If he 
 chose the former he left England, bound by hi? 
 oath never to return. His lands were escheated, his 
 
 chattels were forfeited, and if he came back he 
 was an outlaw; 2 Poll. & Maitl. 588; Reville, V 'Ab- 
 juratio regni, Revue historique. 7 Val. 50, p. 1. 
 See Sanctuary. 
 
 ABLE BODIED. An absence of those 
 palpable and physical defects which evident- 
 ly incapacitate a person from performing 
 the ordinary duties of a soldier. Darling 
 v. Bowen, 10 Vt. 148. Ability to perform 
 ordinary labor is not the test. Town of 
 Marlborough v. Sisson, 26 Conn. 57. 
 
 ABLEGATI. Papal ambassadors of the 
 second rank, who are sent with a less ex- 
 tensive commission to a court where there 
 are no nuncios. This title is equivalent to 
 envoy, which see. 
 
 ABNEP0S (Lat). A great-great-grand- 
 son. The grandson of a grandson or grand- 
 daughter. Calvinus, Lex. 
 
 ABNEPTIS (Lat.). A great-great-grand- 
 daughter. The granddaughter of a grand- 
 son or granddaughter. Calvinus, Lex. 
 
 ABODE. The place in which a person 
 dwells. See Vanderpoel v. O'Hanlon, 53 la. 
 246, 5 N. W. 119, 36 Am. Rep. 216. It is the 
 criterion determining the residence of a legal 
 voter, and which must be with the present 
 intention not to change it. Fry's Election 
 Case, 71 Pa. 302, 10 Am. Rep. 698; Dale v. 
 Irwin, 78 111. 181. See Residence ; Domicil. 
 
 ABO GAD (Sp.). An advocate. See 
 Bozero. 
 
 ABOLITION (Lat. abolitio, from abolere, 
 to utterly destroy). The extinguishment, 
 abrogation, or annihilation of a thing. 
 
 In the Civil, French and German law, abolition is 
 used nearly synonymously with pardon, remission, 
 grace. Dig. 39. 4. 3. 3. There is, however, this dif- 
 ference: grace is the generic term; pardon, ac- 
 cording to those laws, is the clemency which the 
 prince extends to a man who has participated in a 
 crime, without being a principal or accomplice ; 
 remission is made in cases of involuntary homicides, 
 and self-defence. Abolition is different: it is used 
 when the crime cannot be remitted. The prince 
 then may, by leters of abolition, remit the punish- 
 ment, but the infamy remains, unless letters of 
 abolition have been obtained before sentence. En- 
 cycl. de D'Alembcrt. 
 
 As to abolition of slavery, see Bondage ; 
 Slave. 
 
 AB0RDAGE (Fr.). The collision of ves- 
 sels. See Admiralty ; Code; Collision; Nav- 
 igation, Rules of. 
 
 ABORTION. The expulsion of the foetus 
 at a period of utero-gestation so early that 
 it has not acquired the power of sustaining 
 an independent life. 
 
 The unlawful destruction, or the bringing 
 forth prematurely, of the human foetus be- 
 fore the natural time of birth; State v. Mag- 
 nell, 3 Pennewill (Del.) 307, 51 Atl. 606. 
 
 Its natural and innocent causes are to be sought 
 either in the mother— as in a nervous, irritable tem- 
 perament, disease, malformation of the pelvis, im- 
 moderate veneral indulgence, a habit of miscar- 
 riage, plethora, great debility; or in the foetus or 
 its dependencies ; and this is usually disease exist-
 
 ABORTION 
 
 89 
 
 -TION 
 
 lng In the ovum, In the membranes, the placenta, 
 or the fcetus Itself. 
 
 The criminal means of producing abortion are of 
 two kinds. General, or those which seek to pro- 
 duce the expulsion through the constitution of the 
 mother, which are venesection, emetics, cathartics, 
 diuretics, emmenagogues, comprising mercury, sav- 
 in, and the secale cornutum (spurred rye, ergot), 
 to which much importance has been attached; or 
 local or mechanical means, which consist either of 
 external violence applied to the abdomen or loins, 
 or of instruments introduced into the uterus for 
 the purpose of rupturing the membranes and thus 
 bringing on premature action of the womb. The 
 latter Is the more generally resorted to, as being 
 the most effectual. These local or mechanical means 
 not unfrequently produce the death of the mother, 
 as well as that of the foetus. 
 
 .At common law, an attempt to destroy a 
 child en t< n{rc sa mere appears to hav< 
 held in England to be a misdemeanor ; Rose. 
 Cr. Ev. 4th Lond. ed. 260; 1 Russ. Cr. 3d 
 Lond. ed. 671 ; 8 Co. Inst. 50; 1 Hawk. c. 13, 
 s. 16; 1 Whart. Crim. L. § 392; though 
 Green, C. J., in state v. Cooper, 22 N. J. L. 
 52, 51 Am. Dec. 248, declares that he can 
 find "no precedent, no authority, not even a 
 dictum (prior to Lord Ellen borough's act, 43 
 Geo. III. c. 5S) which recognizes the mere 
 procuring of an abortion as a crime known 
 to the law." It was said to be a misde- 
 meanor only if the child were born dead, but 
 if it were born alive and afterwards died, 
 from injury received in the womb, it would 
 be homicide; 1 Mood. C. C. 346; 3 Inst. 50; 
 and this was true even if the child were 
 still, at the time of death, attached to the 
 mother by the umbilical cord; 1 C. & M. 650; 
 2 Mood. C. C. 260; see infra. In this coun- 
 try, it has been held that it is not an indict- 
 able offence at common law to administer 
 a drug, or perform an operation upon a 
 pregnant woman with her consent, with the 
 intention and for the purpose of causing an 
 abortion and premature birth of the foetus 
 of which she is pregnant, by means of which 
 an abortion is in fact caused, unless, at the 
 time of the administration of such drug or 
 the performance of such operation, such wo- 
 man was quick with child; Com. v. Wood, 11 
 Gray (Mass.) 85; Hatfield v. Gano, 15 la. 
 177 ; Evans v. People, 49 N. Y. S6; Smith v. 
 State, 33 Me. 48, 54 Am. Dec. 607; State v. 
 Cooper, 22 N. J. L. 52, 51 Am. Dec. 2!S; 
 Sullivan v. State, 121 Ga. 183, 48 S. E. 940; 
 Barrow v. State, 121 Ga. 1ST, 48 S. E. 950; 
 Mitchell v. Com., 78 Ky. 204, 39 Am. Rep. 
 227. In Idaho the common law rule is as 
 stated, but by statute the crime may be com- 
 mitted before quickening; State v. Alcorn, 7 
 Ida. 599, 64 1'ac. 1014, 97 Am. St. Eep. 252, 
 But in Pennsylvania a contrary doctrine has 
 been held; Mills v. Com., 13 Pa. 631; Com. 
 v. Demain, 6 Pa. L. J. 29. Wharton sup- 
 ports the latter doctrine on principle; 1 Cr. 
 L. § 592 See also Com. v. Boynton, 116 
 Mass. 343 . Com. v. Brown, 121 Mass. 69 ; 
 Com. v. Corkin, 186 Mass. 429. Under the 
 Massachusetts statute forbidding the procur- 
 ing of a miscarriage, it is not necessary to 
 
 | allege that the child was born alive or t. 
 the woman was "quick with ■ 
 Wood, 11 Gray (Mass.) 85; or 
 did or did not die; Com. v. Tho 
 Mass. -!i;i. In other staffs it is 
 the death of the mother is not a i 
 element of the offence of abortion ; Worthing- 
 ton v. State, 92 Md. 222, 48 Atl. ! 
 R. A. 353, 84 Am. St. ;:■ 
 Com., 110 Pa. 100, 1 Atl. 314. 
 
 The Iowa Ited supra wer< 
 
 suits by husband and wife for Blander in 
 charging the latter with having procuri 
 abortion, and it was held that no crime was 
 committed unless the woman was "quick 
 with child." 
 
 The former English statut' sub- 
 
 ject, 43 Ceo. III. c. 58, and 9 Geo. [V. 
 § 14, distinguished between the case where 
 the woman was quick and was not 
 with child; and under both acts the woman 
 must have been pregnant at the time; 1 
 Mood. Cr. Cas. 216; 3 C. & P. 605. The terms 
 of the act of 21 and 25 Vict. c. 100, s. 62, are, 
 "with intent to procure the miscarriage of 
 any woman whether she be with child or 
 not." See 1 Den. Cr. Cas. IS ; 2 C. 6c ! . 
 
 When, in consequence of the means used 
 to secure an abortion, the death of the wo- 
 man ensues, the offence is criminal homicide, 
 and though the cases are not uniform as to 
 the degree, the preponderance of authority 
 is that the crime is murder; State v. 1 
 son, 41 Wis. 309; Com. v. Parker, 9 
 (Mass.) 263, 43 Am. Dec. 396; 1 Hair 
 430; 1 East P. C. 2! 
 5S Mich. 594, 26 N. W. 291; Wilson v. i 
 60 S. W. 400, 22 Ky. Law Bep. 1251; 
 v. Moore, 25 la. 128, 95 Am. Dec. 770: Smith 
 v. State, 38 Me. 48, 54 Am. Dec 607; I 
 & B. C. C. 2S8; Mood. C. C. 35C. 
 wealth v. Keeper of Prison. 2 Ashm. (Pa.) 
 227; Montgomery v. State, SO Ind. 338, 4] 
 Am. Rep. S15; but the defendant may be 
 prosecuted under the special statute for 
 procuring a miscarriage; id. Where the of- 
 fence is held to be murder, it is usually of 
 the second degree, as in State v. 
 Houst. (Del.) 542, 33 Atl. 812. where the de- 
 fendant was convicted under an indictment 
 specifically for that degree; so also in State 
 v. Moore, 25 la. 128, 95 Am. Dec. 77<!. whore 
 Dillon, C. J., upon a careful examination of 
 the authorities, sustained the Indictment and 
 held that the death of the mother w. 
 common law, murder, and under the Iowa 
 statutes murder in the second degree. Con- 
 viction upon an indictment for manslai 
 will be sustained; People v. Abbott, IK", Mich. 
 263. 74 N. W. 529; Yundt v. People, 65 111. 
 872: Dears. & B. C. C 101: 7 Cox C. C. 404. 
 The common law rule that homicide in an 
 attempt to commit a felony is murder, and 
 in the attempt to commit a misdemeai 
 manslaughter, has been much discussed and 
 was applied In Worthrngton v. state, 92 Md. 
 222, 48 Atl. 355, 50 L. R, A. 353, 84 Am. St.
 
 ABORTION 
 
 90 
 
 ABORTION 
 
 Rep. 506, where an attempt to procure an 
 abortion resulting in death was held man- 
 slaughter. Under the Pennsylvania act one 
 causing the death of a woman in attempting 
 to procure a miscarriage cannot be indicted 
 for murder; Com. v. Railing, 113 Pa. 37, 4 
 Atl. 45l». In Wisconsin it was held that from 
 murder at common law, the crime was re- 
 duced to manslaughter by statute; State v. 
 Dickinson, 41 Wis. 299, 309. A person may 
 be convicted of manslaughter for causing the 
 death of a woman in attempting an abortion, 
 under a statute making it manslaughter to 
 kill another in the performance of an un- 
 lawful act ; the statute making the attempt 
 to procure an abortion a misdemeanor does 
 not take the offence out of the provisions 
 of the other act; State v. Power, 24 Wash. 
 34, 63 Pac. 1112, 63 L. R A. 902. Homicide 
 in attempting an abortion may be either 
 murder or manslaughter, but if the latter, 
 it must be held to be voluntary, and not 
 Involuntary ; People v. Com., 87 Ky. 4S7, 9 
 S. W. 509. Dr. Wharton suggests that 
 where there was no intent to do the mother 
 serious bodily harm, it is proper to indict 
 separately for the manslaughter and the per- 
 petration of the abortion; 1 Cr. L. 390. In 
 North Carolina it was held a misdemeanor, 
 and that a count for it may be joined with 
 a count for murder ; State v. Slagle, 82 N. C. 
 653. In New York, under a statute declar- 
 ing it manslaughter to administer drugs, etc., 
 to a pregnant woman with intent to destroy 
 the child, an indictment in which the intent 
 was not so alleged, but only to produce a 
 miscarriage, was held not good as an indict- 
 ment for manslaughter, but the jury could 
 convict of misdemeanor; Lohman v. People, 
 1 N. Y. 379, 49 Am. Dec. 340. 
 
 In East P. C. 230, it is said that if death 
 ensue it is murder, "though the original in- 
 tent, had it succeeded, would not have been 
 so but only a great misdemeanor," but the 
 modern English decisions are by no means 
 uniform. In a late edition of a book of 
 great authority the annotator says : "And 
 there appears to be considerable divergence 
 of opinion amongst the judges as to the prop- 
 er direction to the jury in these cases. See 
 33 L, J. Newsp. 546, 615;" Archb. Cr. PI. & 
 Pr. (23d Eng. Ed.) 798. A recent English 
 case held that if the woman died as the re- 
 sult of the operation, it was murder, but if 
 the jury were of the opinion that if the pris- 
 oner could not as a reasonable man have 
 expected death to result, it was manslaugh- 
 ter; 62 J. P. 711. A note in 13 Harv. L. Rev. 
 51, criticizes a decision, then recent, remark- 
 ing that the settled English rule holding that 
 it is murder if death result from an attempt 
 to procure an abortion, was not followed by 
 Mr. Justice Dowling in a case at the Ches- 
 ter assizes, March 6, 1899. 
 
 Even if the wound or injury were not of 
 itself sufficient to cause death, if it did so 
 result, owing to the condition of the woman, 
 
 it is to be treated as the cause of her death ; 
 Clark v. Com., Ill Ky. 443, 63 S. W. 740. 
 See an exhaustive note on "Homicide in the 
 Commission of or Attempt to Commit an 
 Abortion"; 63 L, R. A. 902. 
 
 If a person, intending to procure abor- 
 tion, does an act which causes a child to be 
 born so much earlier than the natural time 
 that it is born in a state much less capable 
 of living, and afterwards dies in consequence 
 of its exposure to the external world, such 
 person is guilty of murder; and the mere ex- 
 istence of a possibility that something might 
 have been done to prevent the death will not 
 render it less murder ; 2 C. & K. 7S4. Under 
 statutes the offence of abortion is generally 
 made punishable whether the woman be 
 "quick with child," or no; Smith v. State, 33 
 Me. 48, 54 Am. Dec. 607; People v. Abbott, 
 116 Mich. 263, 74 N. W. 529; and in an in- 
 dictment for causing death in an attempt to 
 procure an abortion it is unnecessary so to 
 allege; People v. Com., 87 Ky. 487, 9 S. W. 
 509. It is immaterial whether or not the 
 woman was pregnant; Eggart v. State, 40 
 Fla. 527, 25 South. 144; the intent is the 
 gravamen of the offence ; State v. Jones, 4 
 Pennewill (Del.) 109, 53 Atl. 858. 
 
 The crime may be committed by one who, 
 though prescribing medicine and giving di- 
 rections, was not present when it was taken; 
 McCaughey v. State, 156 Ind. 41, 59 N. E. 
 169; or by sending it through the mail; 
 State v. Morthart, 109 la. 130, 80 N. W. 301 ; 
 or if the pregnant woman consented to or 
 urged the operation and the defendant was 
 reluctant to do it; State v. Magnell, 3 Penne- 
 will (Del.) 307, 51 Atl. 606; the consent of 
 the woman is no defense; Barrow v. State, 
 121 Ga. 187, 48 S. E. 950; State v. Lodge, 
 9 Houst. (Del.) 542, 33 Atl. 312; Peoples v. 
 Com., 87 Ky. 487, 9 S. W. 509; even where 
 the indictment charges force and violence 
 and the evidence showed consent ; People v. 
 Abbott, 116 Mich. 263, 74 N. W. 529; nor is 
 it an excuse that prior to the attempt the 
 woman had tried to do it herself, unless 
 such effort by her contributed to her death; 
 State v. Glass, 5 Or. 73. 
 
 A child en ventre sa mere ["an unborn 
 quick child"] is not a human being within 
 the meaning of a statute providing that 
 whoever kills any human being, with malice 
 aforethought, is guilty of murder; Abrams 
 v. Foshee, 3 la. 274, 66 Am. Dec. 77. 
 
 The woman who takes the drug or on 
 whom the criminal operation is performed, 
 to procure an abortion, is not an accomplice ; 
 Com. v. Boynton, 116 Mass. 343; Com. v. 
 Follansbee, 155 Mass. 274, 29 N. E. 471; 
 State v. Hyer, 39 N. J. L. 598; People v. Mc- 
 Gonegal, 136 N. Y. 62, 75, 32 N. E. 616; and 
 if she had lived would not have been indict- 
 able for that offense, her action constituted 
 a different one; id.; nor is one who attempts 
 to procure it on herself indictable under a 
 statute providing "that any person who shall
 
 ABORTION 
 
 01 
 
 ABRIDGE 
 
 administer to any pregnant woman, etc."; 
 Hatfield v. Gano, 15 la. 177; Smith v. Gaf- 
 fard, 31 Ala. 45. 
 
 In New York if a person advises a woman 
 to take medicine to procure a miscarriage 
 the crime of abortion is not complete unless 
 the advice is acted on; People v. Phelps, 133 
 N. Y. 207, 30 N. E. 1012; id., Gl Hun 115, 15 
 N. Y. Supp. 4 10; but in New Jersey it is by 
 statute criminal to advise a woman to take 
 a drug for the purpose and it is unnecessary 
 either to allege or prove that the drug was 
 actually taken; Stale v. Murphy, 27 N. J. L. 
 112; one furnishing a residence for a woman 
 who procures an abortion is an accessory be- 
 fore the fact ; 12 Cox C. C. 4G3. An offer of 
 proof by physicians that it is the universal 
 custom for unmarried women, illegitimately 
 pregnant, to take any character of drug to 
 procure a miscarriage was properly rejected; 
 Clark v. Coin., Ill Ky. 143, 63 S, W. 740. 
 One who induces a woman to take a harm- 
 less drug is not guilty of inciting, but the 
 woman who takes it believing that it will 
 bring on an abortion is guilty of an attempt; 
 63 J. P. 790. See Fcetus; Pbegnancy; I.\r- 
 
 MENAQOGUES; EN VENTRE SA MERE. 
 
 ABORTIVE TRIAL. A phrase used 
 
 "when a case lias ■ one off and no verdict has 
 been pronounced, without the fault, contriv- 
 ance, or management of the parties." Jebb & 
 B. 51. 
 
 ABORTUS. The fruit of an abortion; the 
 child born before its time, incapable of life. 
 See Abortion; Birtii; Breath; Dead-born; 
 Gestation ; Life. 
 
 ABOUT. Almost or approximately; near 
 in time, quantity, number, quality or degree. 
 The import of the qualifying word "about" is 
 simply, that the actual quantity is a near 
 approximation to that mentioned, and its ef- 
 fect is to provide against accidental varia- 
 tions; Norrington v. Wright, 115 U. S. 18S, 
 8 Sup. Ct. 12, 29 L. Ed. 366. When there is 
 a material and valuable variation, a court 
 of equity upon a petition for specific per- 
 formance will give the word its proper ef- 
 fect; Stevens v. McKnight, 40 Ohio St. .".11. 
 
 In a charter party "about to sail" imports 
 just ready to sail; [1893] 2 Q. B. 271. 
 
 ABOUTISSEMENT (Fr.). An abuttal or 
 abutment See Guyot. Report. Univ. Abou- 
 tissims. 
 
 ABOVE. Higher; superior. As, court 
 above, bail above, plaintiff or defendant 
 above. Above all incumbrances means in ex- 
 cess thereof; Williams v. McDonald, 42 N. 
 J. Eq. 395, 7 Atl. SCO. 
 
 ABPATRUUS (Lat). A great-great-uncle ; 
 or, a great -great-grandfather's brother. Du 
 Cange, Vat runs. It sometimes means uncle, 
 and sometimes great-uncle. 
 
 ABRIDGE. To shorten a declaration or 
 count by taking away or severing some of 
 
 the substance of it. Brooke, Abr., Com., Dig 
 Abridgment ; 1 Viner, Abr. 109. 
 
 To abridge a plaint is to strike out a part 
 of the demand and pray that the I 
 swer to the rest. This was allowable 
 ally in real actions where tin- wril 
 libera tenemento, as assize, dower, etc., 
 demandant claimed land of which 
 the tenant was not seized. See l 
 Baund. 207, n. 2; 2 id. 24, 330; Bro< ke, Abr. 
 Abridgment; Minor v. Bank, 1 Pet (U. : 
 7 L. Ed. 47; Stearns, Seal .\«t. 204, 
 
 ABRIDGMENT. Condensation; <•< mt Tac- 
 tion. An epitome or compendium of anoth- 
 er and larger work, wherein the principal 
 ideas of the larger work are summarily con- 
 tained. 
 
 Abridgments of the law or digests of ad- 
 judged cases scrx-e the very useful purpose 
 of an index to the cases abridged ; •""> Co. 25, 
 Coke says they are most profitable to those 
 who make them; Co. Litt, in preface to the 
 table at the end of the work. With few ex- 
 ceptions, the old abridgments are not en- 
 titled to be considered authoritative. See 
 Authority. See 2 Wils. 1, 2; 1 Burr. 304; 
 1 W. Bla, 101; 3 Term 64, Ull : and an ar- 
 ticle in the North American Review, July, 
 1826, p. 8, for an account of the principal 
 abridgments, which was written by the late 
 Justice Story, and is reprinted in his "Mis- 
 cellaneous Writings," p. 79; Warren, Law 
 Stud. 778. 
 
 See CorviuniiT. 
 
 ABROGATION. The destruction of or an- 
 nulling a former law, by an act of the leg- 
 islative power, or by usage. 
 
 A law may be abrogated, or only derogated from: 
 It Is abrogated when it is totally annulled; it la 
 derogated from when only a part is abrogated; 
 derogatur legi, cum pars detrahitur; abrogatur 
 legi, cum prorsus tollitur. Dig. 50. 17. 1_ 102, 
 rogatur dum fcrtur (when it is passed); abrogatur 
 dum tollitur (when It is r< p lali i) ; d rogai 
 dum quoddam rjus caput aboletur (when any part 
 of it is abolished) ; subrogatur dum aliquid ex ad- 
 jicitur (when anything is added to it); abrogatur 
 denique, quoties aliquid in ca mutatur (as oft 
 anything in it la changed). Dupin, Proleg. Jur. 
 art. iv. 
 
 Express abrogation is that literally pro- 
 nounced by the new law either In general 
 terms, as when a final clause abro§ 
 repeals all laws contrary to the provisions 
 of the new one, or in particular tern 
 when it abrogates certain preceding laws 
 which are named. 
 
 Implied abr igation tal es place when the 
 tfew law contains provisions which an- 
 tively contrary to former laws, without ex- 
 pressly abrogating Buch Laws; for it is a 
 maxim, posteriora derogant prioribus; De 
 Armas - Case, 10 Man. O. s. (La.) ITU; Ber- 
 nard v. Vignaud, 10 Mart <>. s. (La I 
 and also when the order of things for which 
 the law has been made no \i<ts, and 
 
 hemv the motives which have caused its en- 
 actment have ceased to operate; ratione
 
 ABROGATION 
 
 92 
 
 ABSENT 
 
 legis omnino cessante, ccssat lex; Toullier, 
 Dr. Civ. Fr. tit. prel. § 11, n. 151; Merlin, 
 Kepert Abrogation. 
 
 As to the repeal of statutes by nonuser, 
 see Obsolete. 
 
 ABSCOND. To go in a clandestine man- 
 ner out of the jurisdiction of the courts, or 
 to lie concealed, in order to avoid their pro- 
 cess. Malvin v. Christoph, 54 la. 562, 7 N. 
 W. 6. It has been held synonymous with con- 
 ceal ; Johnstone v. Thompson, 2 La. 411. See 
 Absconding Debtor. 
 
 ABSCONDING DEBTOR. One who ab- 
 sconds from his creditors. One who with in- 
 tent to defeat or delay his creditors departs 
 out of England, or being out, remains out. 
 Bankcy. Act, 1SS3, § 4. The statutes of the 
 various states and the decisions upon them 
 have defined absconding debtors. A person 
 who has been in a state only transiently, or 
 has come into it without any intention of set- 
 tling therein, cannot be treated as such ; In 
 re Fitzgerald, 2 Caines (N. Y.) 318; Dudley 
 v. Staples, 15 Johns. (N. Y.) 196; nor can 
 one who openly changes his residence; Dunn 
 v. Myres, 3 Yerg. (Tenn.) 414; Fitch v. Waite, 
 5 Conn. 117 ; House v. Hamilton, 43 111. 185 ; 
 In re Proctor, 27 Vt. 118 ; Mandel v. Peet, 18 
 Ark. 236. It is not necessary that the debtor 
 should actually leave the state ; Field v. Ad- 
 reon, 7 Md. 209. If he depart from his usual 
 place of abode secretly or suddenly, or re- 
 tire or conceal himself from public view in 
 order to avoid legal process ; Bennett v. 
 Avant, 2 Sneed (Tenn.) 152 ; Ives v. Curtiss, 
 2 Root (Conn.) 133; he is an absconder. It 
 is essential that there should be an intention 
 to delay and defraud creditors. The fact of 
 converting a large amount of goods into 
 money by auction sales, at a sacrifice and 
 clandestinely, furnishes a reasonable pre- 
 sumption that the debtor intended to abscond 
 to avoid service of process upon him ; Ross 
 v. Clark, 32 Mo. 296. It has been held to 
 mean more than "absent debtor" and that to 
 state that a debtor absents himself is not a 
 compliance with a statute relating to ab- 
 sconding debtors ; Conard v. Conard, 17 N. 
 J. L. 154. See Absentee. 
 
 ABSENCE. The state of being away from 
 one's domicil or usual place of residence. It 
 may mean non-appearance. L. R. 1 P. & D. 
 169; 14 L. t; 604; Serine v. Kaufman, 12 
 Neb. 423, 11 N. W. 867. 
 
 ABSENT. Being away from; at a dis- 
 tance from ; not in company with. Paine v. 
 Drew, 44 N. H. 306, where it was held that 
 the word when used as an adjective referred 
 only to the condition or situation of the per- 
 son or thing spoken of at the time of speak- 
 ing without any allusion or reference to any 
 prior condition or situation of the same per- 
 son or thing, but when used as a verb im- 
 plies prior presence. It has also been held 
 to mean "not being in a particular place at 
 
 the time referred to," and not to import pri- 
 or presence ; [1893] A. C. 339 ; 62 L. J. C. P. 
 107; 62 L. T. 159. The term absent defend- 
 ants does not embrace non-resident defend- 
 ants but has reference to parties resident in 
 the state, but temporarily absent therefrom ; 
 Wash v. Heard, 27 Miss. 400; Wheeler v. 
 Wheeler, 35 111. App. 123. Although there 
 is a difference between the act of "absenting 
 oneself," which is purely voluntary, and the 
 fact of "being absent," which is voluntary or 
 involuntary as the case may be, yet the fact 
 that a person is absent under some strong 
 compulsion, which does not amount to physi- 
 cal necessity, does not necessarily negative 
 the voluntary aspect of his act; [1901] 1 
 Ch. 728. 
 
 ABSENTE (Lat). Being absent; used of 
 one of the judges not present at the hearing 
 of a cause. 2 Mod. 14. Absente Reo (Lat). 
 The defendant being absent 
 
 ABSENTEE. A landlord who resides in a 
 country other than that from which he draws 
 his rents. McCulloch, Polit. Econ. ; 33 Brit- 
 ish Quart. Rev. 455. One who has left his 
 residence in a state leaving no one to repre- 
 sent him ; Bartlett v. Wheeler, 31 La. Ann. 
 540 ; or who resides in another state but has 
 property in Louisiana ; Penn v. Evans, 28 id. 
 576. It has been also defined as one who has 
 never been domiciled in the state and who 
 resides abroad. Morris v. Bienvenu, 30 id. 
 878. 
 
 As to grant of administration upon proper- 
 ty of persons long absent, see Administra- 
 tion. 
 
 ABS0ILE. To pardon; to deliver from 
 excommunication. Staunford, PL Cr. 72 ; 
 Kelham. Sometimes spelled assoile, which 
 see. 
 
 ABSOLUTE (Lat absolvere). Complete; 
 perfect ; final ; without any condition or en- 
 cumbrance; as an absolute bond (simplex 
 obligatio) in distinction from a conditional 
 bond; an absolute estate, one that is free 
 from all manner of condition or incumbrance. 
 See Condition. 
 
 A rule is said to be absolute when on the 
 hearing it is confirmed and made final. A 
 conveyance is said to be absolute, as dis- 
 tinguished from a mortgage or other condi- 
 tional conveyance; 1 Powell, Mort. 125. 
 
 Absolute rights are such as appertain and 
 belong to particular persons merely as in- 
 dividuals or single persons, as distinguished 
 from relative rights, which are incident to 
 them as members of society ; 1 Sharsw. Bla. 
 Com. 123; 1 Chit. Pr. 32. 
 
 Absolute property is where a man hath 
 solely and exclusively the right and also the 
 occupation of movable chattels; distinguish- 
 ed from a qualified property, as that of a 
 bailee; 2 Sharsw. Bla. Com. 388; 2 Kent 
 347. 
 
 An absolute estate in land is an estate in
 
 ABSOLUTE 
 
 93 
 
 ABSQUE IMPETITIONE VASTI 
 
 fee simple; Johnson v. Mcintosh, 8 Wheat. 
 (U. S.) 543, 5 L. Ed. GS1 ; Fuller v. Missroon, 
 35 S. C. 314, 14 s. E. 714; Columbia Water 
 Power Co. v. Power Co., 172 U. S. 482, 19 
 Sup. Ct. 247, 43 L. Ed. 521. 
 
 In the law of insurance that is an abso- 
 lute interest in property which is so com- 
 pletely vested in the individual that there 
 could be no danger of ins being deprived of 
 it without his own consent; Hough v. Ins. 
 Co., 29 Conn. 10, 7<i Am. Doc. 
 v. Ins. Co., i' Grant, <'as. (Pa.) 326; Wash- 
 ington Fire Ins. Co. v. Kelly, 32 Md. 
 Am. Rep. 1 1'-): Columbia Water Power Co. v. 
 Power Co.. L72 D. S. 492, 19 Sup. Ct. 2 
 L. Ed. 521. 
 
 It may lie used in the sense of vested; Wil- 
 liams v. lus. Co., 17 Fed. 05; Hough v. Ins. 
 Co., 29 Conn. 20, 70 Am. Dec. 581. 
 
 ABSOLUTELY. Completely. Absolutely 
 void means utterly void; Pearsoll v. Chapin, 
 44 Ta. 9. Absolutely neccssanj may be used 
 to make the idea of necessity more emphatic; 
 State v. Tetrick, 34 W. Va. 137, 11 S. E. 1002. 
 
 ABSOLUTION. In Civil Law. A sentence 
 win reby a party accused is declared innocent 
 of the crime laid to his charge. 
 
 In Canon Law. A juridical act whereby 
 the clergy declare that the sins of such us 
 are penitent are remitted. The formula of 
 ution in the Roman Church is absolute; 
 in the Greek Church it is deprecatory; in 
 the Reformed Churches, declaratory. Among 
 Protestants it is chiefly used for a sentence 
 by which a person who stands excommuni- 
 cated is released or freed from that punish- 
 ment. Encyc. Brit. 
 
 In French Law. The dismissal of an ac- 
 cusation. 
 
 The term acquitment is employed when the ac- 
 cused is declared not guilty, and absolution when 
 he is recognized as guilty but the act is not punish- 
 able by law or he Is exonerated by some detect of 
 Intention or will. Merlin, Report. 
 
 ABSOLUTISM. In Politics. A govern- 
 ment in which public power is vested in 
 some person or persons, unchecked and un- 
 controlled by any law or institution. 
 
 The word was first used at the beginning of this 
 century, in Spain, where one who was in favor of 
 the absolute power of the king, and opposed to the 
 constitutional system introduced by the Cortes 
 during the struggle with the French, was called 
 absohttista. The term Absolutist spread over Eu- 
 rope, and was applied exclusively to absolute mon- 
 m ; but absolute power may exist In an aris- 
 tocracy and in a democracy as well. Dr. Lieber, 
 therefore, uses in his works the term Absolute 
 Democracy for that government In which the pub- 
 lic power rests unchecked in the multitude (practi- 
 cally speaking, In the majority). 
 
 ABSQUE ALIQU0 INDE REDDENDO 
 (Lat. without reserving any rent therefrom). 
 
 A term used of a free grant by the crown. 
 2 Rolle, Abr. 502. 
 
 ABSQUE HOC (Lat.). Without this. See 
 Travf.kse. 
 
 ABSQUE IMPETITIONE VASTI (Lat 
 without impeachment of waste). A term in- 
 
 dicating freedom from any liability on the 
 part of the tenant or lessee to a in 
 
 damages for the waste he may commit 
 Waste. 
 
 ABSQUE TALI CAUSA (Lat. without 
 such cause). A form of replication in 
 tion ex <l< licto which wo: 
 
 of the whole mailer of the def< 
 of de injuria. Could, PI. c. 7, § 10. 
 
 ABSTENTION. In French Law. The 
 renunciation of a succession by an heir. 
 .Merlin, Repert. 
 
 ABSTRACT OF A FINE. A part of the 
 record of a fine, consisting of an abstr. 
 the writ of covenant and. the concord; nam- 
 ing the parties, the panel of land, and the 
 agreement. 2 Bla. Com. 35L 
 
 ABSTRACT OF TITLE. An epitome, or 
 brief statement of the evidences of owner- 
 ship of real estate and its encumbrs 
 See Smith v. Taylor, 82 Cal. 533 
 217 ; Simon Safe Deposit Co. v. Chisbolm. 
 33 111. App. G47; Heinsen v. Lamb, 117 111. 
 549, 7 N. E. 75. 
 
 An abstract should set forth briefly, but 
 clearly, every deed, will, or other instru- 
 ment, every recital or fact relating to the 
 devolution of the title, which will enable a 
 purchaser, or mortgagee, or his counsel, to 
 form an opinion as to tl ate of the 
 
 title. See r,i I,. J. Ch. 466; Kane v. Rippey, 
 22 Or. 296, 23 Pac. ISO. 
 
 In England this is usually prepared at the 
 expense of the owner; 1 Dart, Vend 
 The failure to deliver an abstract in Eng- 
 land relieves the purchaser from his con- 
 tract in law ; id. 305. It should run 
 for sixty years; or, since the Act of :> 
 39 Yict. c. 78. forty years prior to the In- 
 tended sale, etc. 
 
 In the United States, where office 
 registering deeds are universal, and convex - 
 andng much less complicated, ab^ 
 much simpler than in England, and an 
 ally prepared at the expense of the pur- 
 chaser, etc., or by his conveyancer. A per- 
 son preparing (he abstract must undo: 
 fully all the laws that can aff 
 Banker v. Caldwell. 3 Minn. 91 (Gil. 46) : and 
 will be held to a strict responsibility in the 
 exercise of the confidence reposed in him : 
 Vallette v. Teden<. 122 111. 607, 14 N. 
 3 Am. St Rep. 501': Brown v. Su 
 App. 317, 53 N. E. 779. 72 Am. St. Rep. 
 Young v. Lohr, 118 Ta. 624, 92 N. W 
 Security Abstract of Ti; 
 
 b. 469, 7''. N. W. 1"7.".: but his liability 
 is not that of a guarantor of the title; 
 Ige & Trust In v. ( "... v. Hugl 
 Wacek v. Frink. 51 Mil 
 X. W. i'-".-".. 38 Am. St. Re] ad will ex- 
 
 tend only to bis ein 3ymns v. Cutter, 
 
 9 Kan. App. 210, itable 
 
 Buildimr & Loan Ass'n v. Bank, lis Tei.n. 
 678, 102 S. W. 901, 12 L R. A. (N. S.) 449, 
 li: Ann. Cas. 4G7.
 
 ABSTRACT OF TITLE 
 
 94 
 
 ABUT 
 
 Where an abstract of title is made for a 
 vendor, warranted to be true and perfect, 
 the vendee refusing to take the property 
 without it, the company making it was held 
 liable for omissions in it ; Dickie v. Abstract 
 Co., S9 Tenn. 431, 14 S. W. 896, 24 Am. St 
 Rep. 616. It is not necessary to state that 
 the descriptions of the premises in the vari- 
 ous instruments are inconsistent; American 
 Trust Inv. Co. v. Abstract Co. (Tenn. Ch. 
 App.) 39 S. W. 877. Where the register of 
 deeds records full satisfaction instead of a 
 partial release on the margin of the mort- 
 gage record, an abstract maker relying on 
 the marginal entry is guilty of negligence; 
 Wacek v. Frink, 51 Minn. 282, 53 N. W. 633, 
 38 Am. St. Rep. 502. 
 
 See Equitable Bldg. & L. Ass'n v. Bank, 
 118 Tenn. 67S, 102 S. W. 901, 12 L. R. A. 
 (N. S.) 449, 12 Ann. Cas. 407 ; Ward. Abstr. ; 
 Title. 
 
 ABSURDITY. That which is both physi- 
 cally and morally impossible. State v. 
 Hayes, 81 Mo. 574. 
 
 ABUSE. Everything which is contrary to 
 good order established by usage. Merlin, 
 Repert 
 
 Among the civilians, abuse has another significa- 
 tion, which is the destruction of the substance of a 
 thing in using it. For example, the borrower of 
 wine or grain abuses the article borrowed by using 
 it, because he cannot enjoy it without consuming it. 
 
 The word is used in statutes as applied to 
 women with reference only to sexual inter- 
 course, and imports an offence of that na- 
 ture ; 6 H. & N. 193; and is held synonymous 
 with ravish ; Palin v. State, 38 Neb. 862, 57 
 N. W. 743. 
 
 It has been held to include misuse; Erie 
 & North-East R Co. v. Casey, 26 Pa. 287; 
 to signify to injure, diminish in value, or 
 wear away by improper use; id.; to be syn- 
 onymous with injure; Dawkins v. State, 58 
 Ala. 376, 29 Am. Rep. 754. 
 
 Abuse of a female child is an injury to the 
 genital organs in an attempt at carnal knowl- 
 edge, falling short of actual penetration; 
 Dawkins v. State, 58 Ala. 376, 29 Am. Rep. 
 754. See Rape. 
 
 Abuse of distress is such use of an animal 
 or chattel distrained as makes the distrainer 
 liable to prosecution as for wrongful ap- 
 propriation. 
 
 Abuse of discretion. A discretion exercis- 
 ed to an end or purpose not justified by and 
 clearly against reason and evidence. Sharon 
 v. Sharon, 75 Cal. 1, 16 Pac. 345 ; Murray v. 
 Bueil, 744 Wis. 14, 43 N. W. 549 ; and see Peo- 
 ple v. R. Co., 29 N. Y. 418. 
 
 Abuse of process. Intentional irregular- 
 ity for the purpose of gaining an advantage 
 over one's opponent. 
 
 ABUT. To reach, to touch. 
 In old law, the ends were said to abut, the sides 
 to adjoin. Cro. Jac. 184. 
 
 To take a new direction ; as where a 
 bounding line changes its course. Spelman, 
 
 Gloss. Abuttare. In the modern law, to 
 bound upon. 2 Chit PI. 660. 
 
 In Hughes v. R. Co., 130 N. Y. 14, 28 N. 
 E. 765, an abutting lot was defined as a lot 
 bounded on the side of a public street in the 
 bed or soil of which the owner of the lot has 
 no title, estate, interest, or private right ex- 
 cept such as are incident to a lot so situated. 
 And see Abendroth v. R. Co., 122 N. Y. 1, 
 25 N. E. 496, 11 L. R. A. 634, 19 Am. St. Rep. 
 461. Though the usual meaning, of the word 
 is that the things spoken of do actually ad- 
 join, "bounding and abutting" have no such 
 inflexible meaning as to require lots assess- 
 ed or improved actually to touch the im- 
 provement; Cohen v. Cleveland, 43 Ohio St. 
 190, 1 N. E. 5S9 ; 1 Ex. D. 336 ; contra, Holt 
 v. City Council, 127 Mass. 408. 
 
 Bounding or abutting on a street will in- 
 clude the soil of a private road opening into 
 the street; 7 Q. B. 1S3. Where a strip of 
 ground from one side of a street is appro- 
 priated for the purpose of widening such 
 street, the lots fronting on the opposite sides 
 of the street at the part widened will be 
 deemed to abut on the improvement, though 
 the street intervenes between the abutting 
 lots and the strip appropriated; Cincinnati 
 v. Batsche, 52 Ohio St. 324, 40 N. E. 21, 27 
 L. R. A. 536; and where a sidewalk interven- 
 ed between the street improvement and lots 
 bounding on the sidewalk, such lots were 
 subject as "contiguous" to the proposed im- 
 provement, to special taxation to defray the 
 expense of the latter; Chicago, B. & Q. R. 
 Co. v. City of Quincy, 136 111. 563, 27 N. E. 
 192, 29 Am. St. Rep. 334. 
 
 ABUTMENT. The walls of a bridge ad- 
 joining the land which support the end of 
 the roadway and sustain the arches. See 
 Board of Chosen Freeholders of Sussex 
 County v. Strader, 18 N. J. L. 108, 35 Am. 
 Dec. 530; Bardwell v. Town of Jamaica, 15 
 Vt 438. 
 
 ABUTTALS (Fr.). The buttings or bound- 
 ings of lands, showing to what other lands, 
 highways, or places they belong or are abut- 
 ting. Termes de la Ley. 
 
 It has been used to express the end 
 boundary lines as distinguished from those 
 on the sides, as "buttals and sidings" ; Cro. 
 Jac. 183. 
 
 ABUTTER. One whose property abuts, is 
 contiguous or joins at a border or boundary, 
 as where no other land, road or street in- 
 tervenes. 
 
 ABUTTING OWNER. An owner of land 
 which abuts or adjoins. The term usually 
 implies that the relative parts actually ad- 
 join, but is sometimes loosely used without 
 implying more than close proximity. See 
 Eminent Domain; Highway. 
 
 AC ETIAM (Lat and also). The intro- 
 duction of the statement of the real cause 
 of action, used in those cases where it was
 
 AC ETIAM 
 
 95 
 
 ACCEPTANCE 
 
 necessary to allege a fictitious cause of ac- j 
 tion to give the court jurisdiction, and also 
 the real cause In compliance with the stat- \ 
 utos. It wis first used in the K. B., and 
 was afterwards adopted by C. J. Norlh in 
 addition to the quare clausum frcyit writs 
 of his court upon which writs of capiat 
 might issue Be balanced for a time whether 
 he should not use the words nee no a instead 
 of ao etiam. It is sometimes written aceti- 
 am. 2 stra. 822. This clause is do Longer 
 used in the English courts. 2 WilL IV. C. 
 89. :; Bla. Com 288. See Bill of ^ 
 
 SEX. 
 
 AC ETIAM BILLyt. And also to a bill. 
 See Ac Etiam. 
 
 ACADEMY. An institution of learning. 
 30dation of experts in some particular 
 branch of art, literature or science. See 
 School. 
 
 ACCEDAS AD CURIAM (Lat. that you go 
 to court). An original writ issuing out of 
 chancery and directed to the sheriff, for the 
 purpose of removing a suit from a Court 
 Baron before one of the superior courts of 
 law. It directs the sheriff to go to the lower 
 court, and enroll the proceedings and send 
 up the record. See Fitzh. N. B. 18 ; Dy. 1G9. 
 
 ACCEDAS AD VICECOMITEM (Lat 
 that you go to the sheriff). A writ directed 
 to the coroner, commanding him to deliver 
 a writ to the sheriff, when the latter, having 
 had a pone delivered him, suppressed it. 
 Reg. Orig. 83. 
 
 ACCELERATION. The shortening of the 
 time for the vesting in possession of an ex- 
 pectant interest. Wharton. 
 
 ACCEPTANCE (Lat. accipere, to receive). 
 The receipt of a thing offered by another 
 with an intention to retain it, indicated by 
 some act sufficient for the purpose. 2 Par- 
 sons, Coutr. 221. It is necessary that each 
 party should do some act by which he will 
 be bound; 3 B. & Aid. GSO. 
 
 The element of receipt must enter into every ac- 
 ceptance, though receipt does not necessarily mean 
 in this sense some actual manual taking. To this 
 element there must be added an intention to retain. 
 This intention may exist at the time of the receipt, 
 or subsequently ; It may be indicated by words, or 
 acta, or any medium understood by the parties; 
 and an ce of goods will be implied from 
 
 mere detention, in many Instances. 
 
 An acceptance Involves very generally the Idea 
 of a receipt In consequence of u previous under- 
 taking on the part of the person offering to deliver 
 such a thing as the party accepting is in some man- 
 ner bound to receive. It is through this meaning 
 that the term acceptance, as used in reference to 
 bills of exchange, has a relation to the ni": 
 eral use of the term. As distinguished from 
 acceptance would denote receipt of something in 
 compliance with, and satisfactory fulfilment of, a 
 co'itr;u:t to which assent had been previously given, 
 and the word has been held to mean something 
 more than receive; Hall v. Los Angeles County, 74 
 Cal. 502, 16 Pac. 313. See Assent. 
 
 Under the statute of frauds delivery and 
 acceptance are necessary to complete an oral 
 
 contract for the sale of got eases. 
 
 In such cases it Is said the a 
 
 be absolute and past recall ; 2 I 
 
 McCulloch v. Ins. I 
 
 Mahan v. I tates, 16 Wall. < I 
 
 146, -i L. Ed. 307. if an article Is found 
 
 :ve, but is retained and used, '>■ 
 sulhcient a< v. Apar 
 
 8 Misc. Rep. 296, 22 N. Y. S 
 If goods are delivered to a third person by 
 order of the purchaser they 
 
 been received and accepted by the lat- 
 ter through his agent; Schroder v. Hardware 
 Co., 88 Ga. 578, L5 B. '.:. 327. Where 
 bal contract was made for the sale of - 
 to be delivered at a specified point where 
 purchaser was to pay freight for the seller, 
 it was held that the acceptance by the ear- 
 ner and posses-ion of freight after reaching 
 its destination, was not such au acceptance 
 by purchaser as would take it out of the 
 statute; Agnew v. Dumas. 64 Vt. 117, 2". 
 Atl. <;.'M. As to how far a right to make fu- 
 ture objections invalidates an acceptance, 
 see 3 B. & Aid. 6S0; 10 Q. B. Ill; Exch. 
 903. See Deltveby; 
 
 Of a Dedication. See that title. 
 
 Of Bills of Exchange. An engagement to 
 pay the bill in money when due. 4 East ~- i 
 Byles, Bills 288. 
 
 An acceptance is said to be : 
 
 Absolute, which Is a positive engagement 
 to pay the bill according to its tenor. 
 
 Conditional, which is an undertaking to 
 pay the bill on a con 
 
 The holder is not bound to receive such an accept- 
 ance, but if he does receive It, : 
 terms; 4 M. & S. 466; Freeman v. Per 
 C. C. 485, Fed. Cas. No. 5.087; Dan. Neg. Ir: 
 For some examples of what do and what do not 
 constitute conditional acceptances, see 6 C. & P. 
 218 ; 3 C. B. 841 ; Heaverin v. Donnell, 7 Smi 
 M. (Miss.) 245, 15 Am. Dec. 302; Campbell • 
 tengill, 7 Greenl. (Me.) 126, 20 Am. Dec. 349 ; Swan- 
 sey v. Dreck, 10 Ala. 533; Huntm v. Ingraham, 1 
 Strob. (S. C.) 271 ; Tassey v. Church. 1 Y. 
 (Pa.) 346; Cook v. Wolfendal .; Mar- 
 
 shall v. Clary, 44 Ga. 513 ; Ray v. Faulkner. 73 
 111. 469; Stevens v. Power Co., 62 Pope 
 
 v. Huth, 14 Cal. 407; Palmer v. 
 
 55 N. W. 256; Vanstrum v. Liljengren, 37 Minn. 
 191, 33 N. W. 555 ; Gerow v. Riffe, 29 W. Va. 462, 
 2 S. E. 104. 
 
 Express or absolute, which is an und 
 ing in direct and express terms to pay the 
 bill. 
 
 Implied, which is an undertaking to pay 
 the bill inferred from a 
 Which fairly warrant BUCh an Inference. 
 
 Where on< 
 knowing that a draft ! on bin tor 
 
 their price, the retaining of ; la is equiva- 
 
 lent to an ai "f the draft; Hall v. Ltank, 
 
 133 111. 234, 24 N. E. 546. 
 
 If the payee writes upon a bill of ex- 
 change drawn ui*>n him the words "pay- 
 
 the i"'th day Of May, 1883," and 
 it, it constitutes a qualified ac ; Van- 
 
 strum v. Liljengren, 37 Alinn. 191, 33 N. W. 
 
 1)00.
 
 ACCEPTANCE 
 
 96 
 
 ACCEPTANCE 
 
 Partial, which is one varying from the 
 tenor of the bill. 
 
 An acceptance to pay part of the amount for 
 which the bill is drawn, 1 Strange 214; Freeman v. 
 Perot, 2 Wash. C. C. 485, Fed. Cas. No. 5,087; or 
 to pay at a different tim?» 14 Jur. 806; Hatcher v. 
 Stolworth, 25 Miss. 376; Molloy, b. 2, c. 10, § 20; 
 or at a different place, 4 M. & S. 462, would be par- 
 tial. 
 
 Qualified, which is either conditional or 
 partial, and introduces a variation in the 
 sum, time, mode, or place of payment; 1 
 Dan. Neg. Inst. 414. 
 
 Supra protest, which is the acceptance of 
 the bill after protest for non-acceptance by 
 the drawee, fbr the honor of the drawer or 
 a particular indorser. See Acceptob Supba 
 Protest. 
 
 When a bill has been accepted supra protest for 
 the honor of one party to the bill, it may be accept- 
 ed supra protest by another individual for the hon- 
 or of another; Beawes, Lex Merc. Bills of Ex- 
 change, pi. 52; 5 Camp. 447. 
 
 j The acceptance must be made by the 
 drawee or some one authorized to act for 
 him. The drawee must have capacity to act 
 and bind himself for the payment of the 
 bill, or it may be treated as dishonored. See 
 Acceptob Supra Protest ; 2 Q. B. 16. 
 
 The acceptance and delivery of negotia- 
 ble paper on Sunday is void between the 
 parties, but if dated falsely as of another 
 day, it is good in the hands of an innocent 
 holder; Harrison v. Powers, 76 Ga. 218. 
 
 It may be made before the bill is drawn, 
 in which case it must be in writing; Wilson 
 v. Clements, 3 Mass. 1 ; Goodrich v. Gordon, 
 15 Johns. (N. Y.) 6; Kendrick v. Campbell, 
 1 Bail. (S. C.) 522; Williams v. Winans, 14 
 N. J. L. 339; Vance v. Ward, 2 Dana (Ky.) 
 95; Read v. Marsh, 5 B. Monr. (Ky.) 8, 41 
 Am. Dec. 253 ; Howland v. Carson, 15 Pa. 
 453; Beach v. Bank, 2 Ind. 488; Lewis v. 
 Kramer, 3 Md. 265 ; Coolidge v. Payson, 2 
 Wheat (U. S.) 66, 4 L. Ed. 185; Cassel v. 
 Dows, 1 Blatchf. 335, Fed. Cas. No. 2,502. 
 It may be made after it is drawn and before 
 it comes due, which is the usual course, or 
 after it becomes due; 1 H. Bla. 313; Wil- 
 liams v. Winans, 14 N. J. L. 339 ; or even 
 after a previous refusal to accept; 5 East 
 514; Mitchell v. Degrand, 1 Mas. 176, Fed. 
 Cas. No. 9,661. It must be made within 
 twenty-four hours after presentment, or the 
 holder may treat the bill as dishonored; 
 Chit. Bills, .212, 217. And upon refusal to 
 accept, the bill is at once dishonored, and 
 should be protested; Chit. Bills, 217. 
 
 It may be in writing on the bill itself or 
 on another paper ; 4 East 91 ; Nimocks v. 
 Woody, 97 N. C. 1, 2 S. E. 249, 2 Am. St. 
 Rep. 268 ; and it seems that the holder may 
 insist on having a written acceptance, and in 
 default thereof consider the bill as dishonor- 
 ed ; 1 Dan. Neg. Inst. 406 ; or it may be oral ; 
 6 C. & P. 218; Leonard v. Mason, 1 Wend. 
 (N. Y.) 522; Williams v. Winans, 14 N. J. 
 L. 339; Walker v. Lide, 1 Rich. (S. C.) 
 249, 44 Am. Dec. 252; Edson v. Fuller, 22 
 
 N. H. 183; Pierce v. Kittredge, 115 Mass* 
 374; Scudder v. Bank, 91 U. S. 400, 23 L. 
 Ed. 245; Sturges v. Bank, 75 111. 595; 11 
 Moore 320 (by the Law Merchant; FolL 
 Contr. 164) ; an acceptance by telegraph 
 has been held good; Coffman v. Campbell, 
 87 111. 98; Central Sav. Bank v. Richards, 
 109 Mass. 414; Garrettson v. Bank, 39 Fed. 
 103, 7 L. R. A. 428; In re Armstrong, 41 Fed. 
 3S1 ; Garrettson v. Bank, 47 Fed. 807 ; North 
 Atchison Bank v. Garretson, 51 Fed. 168, 2 
 C. C. A. 145; but must now be in writing in 
 many states. The usual form is by writing 
 "accepted" across the face of the bill and 
 signing the acceptor's name ; 1 Pars. Contr. 
 223; 1 Man. & R. 90; but the drawee's name 
 alone is sufficient, or any words of equiva- 
 lent foroe to accepted. See Byles, Bills 147 ; 
 1 Atk. 611; 1 Man. & R. 90 ; Parkhurst v. 
 Dickerson, 21 Pick. (Mass.) 307; Orear v. 
 McDonald, 9 Gill. (Md.) 350, 52 Am. Dec, 
 703. So if the drawee writes the word "ac- 
 cept" and signs his name; Cortelyou v. Ma- 
 ben, 22 Neb. 697, 36 N. W. 159, 3 Am. St 
 Rep. 284. 
 
 The drawee cannot make his acceptance 
 after the bill has been delivered to the hold- 
 er's agent, though it had not been communi- 
 cated to the holder ; Fort Dearborn Bank v. 
 Carter, 152 Mass. 34, 25 N. E. 27. See Trent 
 Tile Co. v. Bank, 54 N. J. L. 599, 25 Atl. 411. 
 
 Unless forbidden by statute, a parol prom- 
 ise upon sufficient consideration to accept 
 a bill of exchange binds the acceptor ; Scud- 
 der v. Bank, 91 U. S. 406, 23 L. Ed. 245; 
 Hall v. Cordell, 142 U. S. 116, 12 Sup. Ct 
 154, 35 L. Ed. 956; Sturges v. Bank, 75 111. 
 595 ; 11 M. & W. 383 ; Neumann v. Schroeder, 
 71 Tex. 81, 8 S. W. 632 ; Short v. Blount, 99 
 N. C. 49, 5 S. E. 190; Kelley v. Greenough, 
 9 Wash. 659, 38 Pac. 158 ; Barney v. Worth- 
 ington, 37 N. Y. 112; Bank of Rutland v. 
 Woodruff, 34 Vt 92; [1894] 2 Q. B. S85; 
 contra, Haeberle v. O'Day, 61 Mo. App. 390; 
 Erickson v. Inman, 34 Or. 44, 54 Pac. 949; 
 but the Uniform Negotiable Instruments Act 
 in force in nearly all the states (see Nego- 
 tiable Instbuments) requires a written ac- 
 ceptance; see much learning in Walker v. 
 Lide, 1 Rich. (S. C.) 249, 44 Am. Dec. 253; 
 Allen v. Leavens, 26 Or. 164, 37 Pac. 4S8, 
 26 L. R. A. 620, 46 Am. St Rep. 613; Lind- 
 ley v. Bank, 76 la. 629, 41 N. W. 381, 2 L. 
 R. A. 709, 14 Am. St. Rep. 254. 
 
 As to what law governs the mode of ac- 
 ceptance, see 61 L. R. A. 196, n., where the 
 cases are examined and the conclusion 
 reached that the weight of authority is in 
 favor of the law of the place where the 
 agreement to accept was made, rather than 
 that of the place of payment. 
 
 Where the holder of an overdue bill of ex- 
 change agrees by parol to accept payment in 
 instalments, the failure of acceptor to carry 
 out his contract does not release the drawer; 
 Trotter v. Phillips, 2 Pa. Dist. R. 279. 
 
 An acceptance made payable at a bank au-
 
 ACCEPTANCE 
 
 97 
 
 ACCEPTOR SUPRA PROTEST 
 
 thorizes its payment and charge to the ac- 
 ceptor's account; 18 L. J. Q. B. 218; Byles, 
 Bills 198. But the acceptor is not liable un- 
 less he i to Its being so made paya- 
 ble; id. 188; ! 1 East 5S2; and he may prove- 
 that he was ready to pay at the place nam 
 cd ; <ireen v. Goings, 7 Barb. (X. Y. i 652. 
 
 The acceptance of forged paper and its 
 payment by the drawer to a bona fide hold- 
 er gives no right of action to recover back 
 the money; Hortsman v. Henshaw, 11 How. 
 (U. S.) 177, 13 L. Ed. 653; so also of bills 
 accompanied by a forged bill of lading; 
 Hoffman & Co. v. Bank, 12 Wall. (U. S.) 
 181, 20 L Ed. 366. 
 
 See Check. As to acceptance of offer, 
 see Offer. 
 
 See Bill of Exchange; Protest; Ac- 
 
 I tl{. 
 
 ACCEPTILATION. In Civil Law. A re- 
 lease made by a creditor to bis debtor of his 
 debt without receiving any consideration. 
 Ayl. Pand. tit. 26, p. 570. It is a sped 
 
 donation, but not subject to the forms of the 
 latter, and is valid unless in fraud of credi- 
 tors. Merlin, Report 
 
 Acceptilation may be defined verborum concaptio 
 qua creditor debitori, quod debet, arrcptum fert; 
 or, a certain arrangement of words by which, on 
 the question of the debtor, the creditor, wishing 
 to dissolve the obligation, answers that he admits 
 as received what In fact he has not received. The 
 acceptilation Is an imaginary payment; Dig. 46. 4. 
 1. 19; Dig. 2. 14. 27. 9; Inst. 3. 30. 1. 
 
 ACCEPTOR. One who accepts a bill of 
 exchange. 3 Kent 75. 
 
 The party who undertakes to pay a bill of 
 exchange in the first instance. 
 
 The drawee is in general the acceptor; 
 and unless the drawee accepts, the bill is 
 dishonored. The acceptor of a bill is the 
 principal debtor, and the drawer the surety. 
 He is bound, though he accepted without 
 consideration and for the sole accommoda- 
 tion of the drawer. By his acceptance he 
 admits the drawer's handwriting; for before 
 acceptance it was incumbent upon him to in- 
 quire 1 into the genuineness of the drawer's 
 handwriting; 3 Kent 75; 3 Burr. 1384; 1 
 W. Bla. 300; Levy v. Bank, 4 Dall. (U. S.) 
 234, 1 L. Ed. 814. 
 
 The drawee by acceptance only vouches 
 for the genuineness of the signature of the 
 drawer and not of the body of the instru- 
 ment; White v. Bank, 64 N. Y. 31G, 21 Am. 
 Pep. 612; Young & Son y. Lehman, Durr & 
 Co.. G3 Ala. 519. 
 
 See Acceptance. 
 
 ACCEPTOR SUPRA PROTEST. One who 
 
 accepts a bill which has been protested, for 
 the honor of the drawer or any one of the 
 endorsers. 
 
 Any person, even the drawee himself, may 
 accept a bill supra protest; Byles, Bills *262, 
 and two or more persons may become ac- 
 ceptors supra protest for the honor of differ- 
 ent persons. A general acceptance supra 
 Bouv.— 7 
 
 protest is taken to be for tl 
 drawer; Byles, Bills *2C3. The obligation of 
 an acceptor supra protest is not abs • but 
 only to pay If the drawee do not ; 
 391. Spe Schofleld v. Bayard, 3 v. 
 Y.) 401; Paring v. Clark, 19 
 220; Exeter Bank v. Gordon, 8 N. H. 66. An 
 acceptor supra protest has hi 
 against the person for whose honor he ac- 
 cepted, and against all persons ••■ 
 prior to that person. If he takes up the bill 
 for Ihe honor of the endorser, he 
 the light of an endorsee paying full value 
 for the bill, and has the same re 
 which an endorsee would be entiti 
 all prior parties, and he can, of cour 
 the drawer and endorser; 1 Esp. 11-!; 3 
 Kent 75; Chit Bills 312. The acceptor su- 
 pra protest Is required to give the same no- 
 tice, in order to charge a party, which is 
 necessary to be given by other holders; 
 Baring v. Clark, 19 Pick. (Mj 
 
 If a bill is accepted and is snl 
 dishonored, the acceptor cannot then accept 
 for the honor of the endorser, as he is al- 
 ready bound; 13 Yes. Jr. 180. 
 
 See Acceptance. 
 
 ACCESS. Approach, or the means or pow- 
 er of approaching. 
 
 Sometimes by access Is understood sexual Inter- 
 course ; at other times, the opportunity of commu- 
 nicating together so that sexual intercourse may 
 have taken place, Is also called access. 
 
 In this sense a man who can readily be In com- 
 pany with his wife Is said to have access i 
 and In that case her issue are presumed to be his 
 issue. But this presumption may be I 
 positive evidence that no sexual intercourse took 
 place; 1 Turn. & R. 141. 
 
 Parents are not allowed to prove non-ac- 
 cess for the purpose of bastardizing 
 of the wife, whether the action be civil or 
 criminal, or whether the proceeding is one 
 of settlement or bastardy, or to recover prop- 
 erty claimed as heir at law; Bull. X. P. 113; 
 Bowles v. Bingham, 2 Munf. (Ya.) 
 Am. Dec. 407; State v. Pettaway, 10 
 G23; Cross v. Cross, 3 Pai. Ch. (N. Y.) 139, 
 23 Am. Dec. 778; Mink v. State, GO Wis. 
 5S4, 19 N. W. 445, 50 Am. Rep. 386; I 
 Territory, 8 Okl. 75, 56 Pac 853; State v. 
 Lavin, SO la. 555, 46 X. W. ■ ert v. 
 
 Greenwalt, 44 Mich. 215, X. W. t 
 Am. Pep. 266; Tioga County v. South Creek 
 Township, 75 Pa. 13G, where the common 
 law rule was applied in an extreme 
 and was held not to be affected by the stat- 
 ute abolishing the disqualification 
 by reason of interest The rule has been 
 held to be modified by statutes; Evans v. 
 Siate. 165 Ind. 369\ 74 X. B. 244, 75 N. E. 
 651, 6 Ann. Cas. 813, 2 L. R. A. ( N. 8.) 619 
 (where the cases are collected In a note) ; 
 
 v. McDowell, 101 X. C. 734. 7 
 785, which changes the rule as laid down in 
 Boykin v. Boykln, 70 X. C. 2G3, 10 Am. Rep. 
 776. 
 
 Non-access is not presumed from the mere
 
 ACCESS 
 
 98 
 
 ACCESSION 
 
 fact that husband and wife lived apart; 1 
 Gale & D. 7. See 3 C. & P. 215 ; 1 Sim. & 
 S. 153 ; 1 Greenl. Ev. § 28. 
 
 In Canon Law. The right to some bene- 
 fice at some future time. 
 
 ACCESSIO (Lat.). An increase or addi- 
 tion; that which lies next to a thing, and 
 is supplementary and necessary to the prin- 
 cipal thing; that which arises or is produced 
 from the principal thing. Calvinus, Lex. 
 
 A manner of acquiring the property in a 
 thing which becomes united with that which 
 a person already possesses. 
 
 The doctrine of property arising from accessions 
 Is grounded on the rights of occupancy. It is said 
 to be of six kinds in the Roman law. 
 
 First. That which assigns to the owner of a 
 thing its products, as the fruit of trees, the young 
 of animals. 
 
 Second. That which makes a man the owner of 
 a thing which is made of another's property, upon 
 payment of the value of the material taken. See 
 La. .Civ. Code, art. 491. As where wine, bread, or 
 oil is made of another man's grapes or olives; 2 
 Bla. Com. 404; Babeock v. Gill, 10 Johns. (N. T.) 
 288. 
 
 Third. That which gives the owner of land new 
 land formed .by gradual deposit. See Accretion ; 
 Alluvion. 
 
 Fourth. That which gives the owner of a thing 
 the property in what is added to it by way of 
 adorning or completing it; as if a tailor should use 
 the cloth of B. in repairing A.'s coat, all would 
 belong to A. ; but B. would have an action against 
 both A. and the tailor for the cloth so used. This 
 doctrine holds In the common law; F. Moore 20; 
 Poph. 38 ; Brooke, Abr. Properties 23. 
 
 Fifth. That which gives Islands formed in a 
 stream to the owner of the adjacent lands on either 
 side. 
 
 Sixth. That which gives a person the property In 
 things added to his own so that they cannot be 
 separated without damage. Guyot, Repert. Univ. 
 
 Accessio includes both accession and ac- 
 cretion as used in the common law. 
 
 An accessory obligation, and sometimes 
 also the person who enters into an obligation 
 as surety in which, another is principal. Cal- 
 vinus, Lex. 
 
 ACCESSION. Coming into possession of 
 a right or office ; increase ; augmentation ; 
 addition. 
 
 The right to all which one's own property 
 produces, whether that property be movable 
 or immovable, and the right to that which is 
 united to it by accessary, either naturally or 
 artificially. 2 Kent 360 ; 2 Bla. Com. 404. 
 
 If a man hath raised a building upon his 
 own ground with the material of another, or 
 if a man shall have built with his own ma- 
 terials upon the ground of another, in either 
 case the edifice becomes the property of him 
 to whom the ground belongs ; for every 
 building is an accession to the ground upon 
 which it stands; and the owner of the 
 ground, if liable at all, is only liable to the 
 owner of the materials for the value of them ; 
 Inst. 2. 1. 29, 30 ; 2 Kent 362. And the same 
 rule holds where trees, vines, vegetables, or 
 fruits are planted or sown in the ground of 
 another; Inst. 2. 1. 31, 32. 
 
 The building of a rail fence on another's 
 
 land vests the rails in the owner of the land ; 
 Wentz v. Fincher, 34 N. C. 297, 55 Am. Dec. 
 416. And see Merritt v. Johnson, 7 Johns. 
 (X. Y.) 47.3, 5 Am. Dec. 289 ; Pulcifer v. Page, 
 32 Me. 404, 54 Am. Dec. 582. 
 
 If the materials of one person are united 
 by labor to the materials of another, so as 
 to form a single article, the property in the 
 joint product is, in the absence of any agree- 
 ment, in the owner of the principal part of 
 the materials by accession ; Merritt v. John- 
 son, 7 Johns. (N. Y.) 473, 5 Am. Dec. 2S9; 
 Stevens v. Briggs, 5 Pick. (Mass.) 177; Glo- 
 ver v. Austin, 6 id. 209 ; Pulcifer v. Page, 32 
 Me. 404, 54 Am. Dec. 5S2, and note (where the 
 whole subject is treated) ; Beers v. St. John, 
 16 Conn. 322 ; Inst. 2. 1. 26 ; Eaton v. Lynde, 
 15 Mass. 242 ; Wetherbee v. Green. 22 Mich. 
 311, 7 Am. Rep. 653; Ryder v. Hathaway, 21 
 Pick. (Mass.) 305; Stephens v. Santee, 49 
 N. Y. 35; Mack v. Snell, 140 N. Y. 193, 35 
 N. E. 493, 37 Am. St. Rep. 534. But a ves- 
 sel built of materials belonging to different 
 persons, it has been said, will belong to the 
 owner of the keel, according to the rule, pro- 
 prietas totius navis carinw causam sequitur; 
 2 Kent 361 ; Glover v. Austin, 6 Pick. (Mass.) 
 209; Merritt v. Johnson, 7 Johns. (N. Y.) 
 473, 5 Am. Dec. 289; Johnson v. Hunt, 11 
 Wend. (N. Y.) 139; but see Coursin's Ap- 
 peal, 79 Pa. 220. It is said to be the doc- 
 trine of the civil law, that the rule is the 
 same though the adjunction of materials 
 may have been dishonestly contrived; for, 
 in determining the right of property in such 
 a case, regard is had only to the things join- 
 ed, and not to the persons, as where the ma- 
 terials are changed in species ; Wood, Inst. 
 93 ; Inst. 2. 1. 25. And see Adjunction. 
 
 The tree belongs to the owner of the land 
 on which the root is, and its fruit is to the 
 owner of the tree; 1 Ld. Raym. 737; al- 
 though limbs overhang a neighbor's land; 
 Hoffman v. Armstrong, 46 Barb. (N. Y.) 337. 
 The original title to ice is in the possessor 
 of the water where it is formed; State v. 
 Pottmeyer, 33 Ind. 402, 5 Am. Rep. 224 ; Hig- 
 gins v. Kusterer, 41 Mich. 318, 2 N. W. 13, 
 32 Am. Rep. 160; but the sale of ice in the 
 water is a sale of personalty; id. 
 
 Where, by agreement, an article is manu- 
 factured for another, the property in the 
 article, while making and when finished, 
 vests in him who furnished the whole or 
 the principal part of the materials; and 
 the maker, if he did not furnish the same, 
 has simply a lien upon the article for his 
 pay ; Jones v. Gardner, 10 Johns. (N. Y.) 
 268; Eaton v. Lynde, 15 Mass. 242; Worth 
 v. Northam, 26 N. C. 102; Foster v. Warner, 
 49 Mich. 641, 14 N. W. 673; Eaton v. Mun- 
 roe, 52 Me. 63. 
 
 The increase of an animal, as a general 
 thing, belongs to the owner of the dam or 
 mother ; Arkansas Valley Land and Cattle 
 Co. v. Mann, 130 U. S. 69, 9 Sup. Ct. 45S, 32 
 L. Ed. 854 ; Stewart v. Ball's Adm'r, 33 Mo.
 
 ACCESSION 
 
 99 
 
 SION 
 
 154; Sanson v. Millett, 55 Me. 184; Hazel- 
 baker v. Goodfellow, 04 111. 238; but, if it 
 be let to anoiher, the person who thus be- 
 comes the temporary proprietor will be en- 
 titled to its Increase; Putnam v. Wyley, 8 
 Johns. (X. Y.) 435, 5 Am. Dec. 346; [nst 2. 1. 
 3S; Hanson v. Millett, 55 Me. 184; Stewart 
 v. Hall's Adm'r, 33 Mo. 154; Kellogg v. 
 Lovely, 4G Mich. 131, 8 X. W. 609, 41 Am. 
 151; though it lias been held that this 
 would not be the consequence of simply put- 
 ting a mare to pasture, In consideration of 
 her services; Heartley v. Beaum, 2 Pa, 166. 
 The Increase of a female animal held under 
 a bailment or executory contract I 
 the bailor or vendor until the agreed price 
 is paid; Allen v. Delano, 55 Me. 113, 92 Am. 
 Dec. 573; Elmore v. Fitzpatrlck, 56 Ala. 400. 
 See note as to title to increase of animals; 
 17 L. K. A. SI. The Civil Code of Louisiana., 
 following the Roman law, made a distinc- 
 tion in respect of the issue of slaves, which, 
 though born during the temporary use or 
 hiring of their mothers, belonged not to the 
 hirer, but to the permanent owner; Inst. 2. 
 1. 37; and see Jordan v. Thomas, 31 Miss. 
 557; Seay v. Bacon, 4 Sneed (Tenn.) 99, 67 
 Am. Dec. 601; 2 Kent 361 ; Fowler v. Mer- 
 rill, 11 How. (U. S.) 396, 13 L. Ed. 736. But 
 the issue of slaves horn during a tenancy for 
 life belonged to the tenant for life; Bohn v. 
 Headley, 7 Hair. & J. (Md.) 257. 
 
 If there be a sale, mortgage, or pledge of 
 a chattel, carried into effect by delivery or 
 by a recording of the mortgage where that 
 Is equivalent to a delivery, and other ma- 
 terials are added, afterwards, by the labor 
 of the vendor or mortgagor, these pass with 
 the principal by accession ; Farwell v. Smith, 
 12 Tick. (Mass.) 83; Jenckes v. Goffe, 1 R. I. 
 511. 
 
 If, by the labor of one man, the property 
 of another has been converted into a thing 
 of different species, so that its identity is de- 
 stroyed, the original owner can only recover 
 the value of the property in its unconverted 
 state, and the article itself will belong to the 
 person who wrought the conversion, if he 
 wrought it believing the material to he his 
 own. Such a change is said to be wrought 
 when wdieat is made into bread, olives into 
 oil, or grapes into wine ; Inst 2. 1. 25 ; Sils- 
 bury v. McCoon, 4 Denio (N. Y.) 332; Year 
 B. 5 II. VII. 15; Brooke, Abr. Property 23 : 
 or bricks out of clay; Baker v. Meisch, 29 
 Neb. 227, 45 X. W. 685. 
 
 But, if there be a mere change of form or 
 value, which does not destroy the identity of 
 tile materials, the original owner may still 
 reclaim them or recover their value as thus 
 Improved; Brooke, Abr. Property 23; F. 
 Moore 20; Wright v. Douglass, 2 X. Y. 379; 
 Frost v. Willard, 9 Barb. (N. Y.) 440. So, 
 if the change bave been wrought by a wilful 
 trespasser, or by one who knew that the ma- 
 terials were not his own; in such case, how- 
 ever radical the change may have been, the 
 
 owner may reclaim them, or 
 
 value in their new shape: Wooden v, 
 
 v. I. s , 106 D. S. 432, 1 Su] . 
 
 Ed. L'.:0, thus, where whi 
 
 of another's corn, Wright v. i 
 
 l ; shingles out of anoth< 
 Chandler v. Edson, 9 Johns. (X. V i 
 out of another's wood, Curtis v. 
 Johns. (X. \.) 168, 6 An.. I 
 
 Driver, 12 Ala. 590 ; Leather ■ 
 
 Hyde v. I 21 Barb. (N. 5 
 
 in all these cases, the i 
 
 by one who knew the i 
 another's, the original owner was 
 entitled to recover the property, or ii> value 
 in the Improved or convert' 
 see Snyder v. Yaux, 2 Rawle (Pa.) 4J7. L'l 
 Am. Dec. 4GG: Betts v. Ix.>e, 5 Johns. (N. 3f.) 
 348, 4 Am. Dec. 368; Williard v. BJ 
 Mete. (Mass.) 493, 45 Am. . 
 
 An aerolite which is imbedded to a 
 of 3 feet is the property of the ov. 
 land on which it falls, rather than of the 
 person who finds it; Goddard v. WJ 
 SO la. 71, 52 X. W. 1124, 17 L. R. A. 7 
 Am. St. Rep. 4S1. 
 
 In International Law. The absolute or 
 conditional ac i ance, by one or several 
 states, of a treaty already conclude 
 other sovereignties. Merlin, Repert. 
 sion. 
 
 It may be of two kinds: First, the fo 
 entrance of a third slate into a 
 that such state becomes a party to it; and 
 this can only be with the coi sent of the 
 original parties. The accession I 
 self a treaty, and is frequently invi 1 
 provided for in the original treaty, as in the 
 Declaration of Paris and the Convention of 
 Geneva, 1S64, Art. 9, and that of 1868, Art. 
 15. To the first Geneva Convention the ac- 
 cession of Great Britain was signified 
 18, 1SG5. So the Declaration of St Peters- 
 burg, 1SGS, relative to explosive buh 
 said to have "been acceded to by all the civ- 
 ilized states of the world." Higgins, The 
 Hague and Other Conferences 21 
 state may accede to a treaty between other 
 states solely for the purpose of guarantee. 
 in which case, though a party, it. i- 
 by the treaty only as a guarantor. 1 1 1 
 helm, Int. L. sec. C 
 
 ACCESSORY. Any thing which is Joined 
 to another thing as an ornament, or to ren- 
 der it more perfect. 
 
 For example, the halter of a horse, the frame of 
 a picture, the keys of a house, and the 1 iVc • 
 belong to the principal thiii£. The sale of the ma- 
 terials of a newspaper establishment will carry with 
 it, as an accessory, the sub 
 land v. Stewart, 2 Watts (Pa.) Ill, ^C Am. De< 
 but a bequest of a house would not carry the fur- 
 niture In it, as accessory to IL Domat, Lois Civ. 
 Part. 2, liv. 4, tit. 2, s. 4. n. 1. ;i non 
 
 ditcit sed scquitur pr. Litt :. a. 
 
 See Accession; Adjunction; Appubte- 
 In Criminal Law. He who is not the
 
 ACCESSORY 
 
 100 
 
 ACCESSORY 
 
 chief actor In the perpetration of the offence, 
 nor present at its performance, but is some 
 way concerned therein, either before or aft- 
 er the fact committed. 
 
 An accessory before the fact is one who, 
 being absent at the time of the crime com- 
 mitted, yet procures, counsels, or commands 
 another to commit it. 1 Hale, PL Cr. 615. 
 
 Any one who incites persons or commands 
 another to commit a felony is an accessory 
 before fact and punishable as the principal 
 felon. An accessory is never present at the 
 commitment of the crime; Odger, C. L. 132. 
 
 In some states an accessory before the fact 
 is treated as a principal, as also in England 
 by statute; 2 C. & K. 887; L. R. 1 C. C. R. 77. 
 
 With regard to those cases where the 
 principal goes beyond the terms of the so- 
 licitation, the approved test is, "Was the 
 event alleged to be the crime to which the 
 accused is charged to be accessory, a prob- 
 able effect of the act which he counselled?" 
 1 F. & F. Cr. Cas. 242; Rose. Cr. Ev. 181. 
 When the act is committed through the agen- 
 cy of a person who has no legal discretion or 
 will, as in the case of a child or an insane 
 person, the incitor, though absent when the 
 crime was committed, will be considered, not 
 an accessory, for none can be accessory to 
 the acts of a madman, but a principal in the 
 first degree; 1 Hale, PI. Cr. 514; U. S. v. 
 Gooding, 12 Wheat. (U. S.) 469, 6 L. Ed. 693. 
 But if the instrument is aware of the con- 
 sequences of his act, he is a principal in the 
 first degree, and the employer, if he is ab- 
 sent when the act is committed, is an acces- 
 sory before the fact ; 1 R. & R. Cr. Cas. 363 ; 
 1 Den. Cr. Cas. 37; 1 C. & K. 5S9; or if he 
 is present, as a principal in the second de- 
 gree ; 1 Fost. Cr. Cas. 349 ; unless the instru- 
 ment concur in the act merely for the pur- 
 pose of detecting and punishing the employ- 
 er, in which case he is considered as an in- 
 nocent agent. 
 
 An accessory after the fact is one who, 
 knowing a felony to have been committed, 
 receives, relieves, comforts, or assists the 
 felon; 4 Bla. Com. 37. 
 
 In England one who harbors a felon, know- 
 ing him to be a felon (unless it is a wife 
 harboring her husband). This does not ap- 
 ply to a misdemeanant. In treason such per- 
 son is deemed a principal traitor ; Odger, C. 
 L. 132. 
 
 No one who is a principal can be an ac- 
 cessory ; but if acquitted as principal he may 
 be indicted as an accessory after the fact ; 
 State v. Davis, 14 R. I. 2S3. 
 
 In certain crimes, there can be no accesso- 
 ries; all who are concerned are principals, 
 whether they were present or absent at the 
 time of their commission. These are treason, 
 and all offences below the degree of felony; 
 4 Bla. Com. 35 ; 2 Den. Cr. Cas. 453 ; Com. 
 v. McAtee, 8 Dana (Ky.) 28; Williams v. 
 State, 12 Smedes & M. (Miss.) 5S ; Com. v. 
 Ray, 3 Gray (Mass.) 448; Schmidt v. State, 
 
 14 Mo. 137; Sanders v. State, 18 Ark. 198; 
 Com. v. Burns, 4 J. J. Marsh. (Ky.) 182; Stev- 
 ens v. People, 67 111. 5S7 ; Griffith v. State, 
 90 Ala. 583, 8 South. 812 ; U. S. v. Boyd, 45 
 Fed. 851. Such is the English rule; but in 
 the United States it appears not to be deter- 
 mined as regards the cases of persons assist- 
 ing traitors; Sergeant, Const Law 382; In 
 re Burr, 4 Cr. 472, 501 ; U. S. v. Fries, 3 Dall. 
 515, 1 L. Ed. 701. See Charge to Grand Jury, 
 2 Wall. Jr. 134, Fed. Cas. No. 18,276 ; U.. S. 
 v. Hanway, 2 Wall. Jr. 139, Fed. Cas. No. 
 15,299 ; Carlisle v. U. S., 16 Wall. (U. S.) 147, 
 21 L. Ed. 426; Hanauer v. Doane, 12 Wall. 
 (U. S.) 347, 20 L. Ed. 439. That there cannot 
 be an accessory in cases of treason, see 
 Davis, Cr. L. 38. Contra, 1 Whart. Cr. L. 
 § 224. 
 
 There can be no accessory when there is 
 no principal ; if a principal in a transaction 
 be not liable under our laws, no one can be 
 charged as a mere accessory to him; U. S. 
 v. Libby, 1 Woodb. & M. 221, Fed. Cas. No. 
 15,597; Armstrong v. State, 28 Tex. App. 
 526, 13 S. W. 864. But see Searles v. State, 
 6 Ohio Cir. Ct. R. 331. This rule was chang- 
 ed by the Stat. 1 Anne, 2, c. 9, so that if the 
 principal felon was delivered in any way 
 after conviction and before attainder, as by 
 pardon or being admitted to benefit of clergy, 
 the accessory might be tried; and that rule 
 is substantially enacted by the Ga. Penal 
 Code § 49, but the common law is otherwise 
 unchanged in this country; Smith v. State, 
 46 Ga. 298. 
 
 Where two persons are indicted, one as 
 principal and the other as aider or abettor, 
 the latter may be convicted as principal, 
 where the evidence shows -he was the per- 
 petrator of the deed ; Benge v. Com., 92 Ky. 
 1, 17 S. W. 146. 
 
 At common law, an accessory cannot be 
 tried, without his consent, before the convic- 
 tion of the principal ; (unless they are tried 
 together; Fost. Cr. Cas. 360; Com. v. Wood- 
 ward, Thatch. Cr. Cas. (Mass.) 63; Baron v. 
 People, 1 Park. Cr. Cas. (N. Y.) 246 ; State v. 
 Groff, 5 N. C. 270; Whitehead v. State, 4 
 Humph. (Tenn.) 278; at least not without 
 some special reason, recognized by law, why 
 the principal has not been tried ; Smith v. 
 State, 46 Ga. 298). This is altered by stat- 
 ute in most of the states. This rule is said 
 to have been the outcome of strict medieval 
 logic. The trial of the accused being by 
 sacred or supernatural processes, it would 
 be a shame to the law if the principal were 
 acquitted after the accessory had been hang- 
 ed. 2 Poll. & Maitl. 508. 
 
 But an accessory to a felony committed 
 by several, some of whom have been con- 
 victed, may be tried as accessory to a felony 
 committed by these last; but if he be in- 
 dicted and tried as accessory to a felony 
 committed by them all, and some of them 
 have not been proceeded against, it is error ; 
 Stoops v. Com., 7 S. & R. (Pa.) 491, 10 Am.
 
 ACCESSORY 
 
 101 
 
 'X TRACT 
 
 Dec. 482; Com. v. Knapp, 10 Pick. (Mass.) 
 484, 20 Am. Dec. 534. If the principal is 
 dead, the accessory cannot, by the common 
 law, be tried at all. Com. v. Phillips, 16 
 Mass. 423; State v. MeDaniel, 41 Te 
 
 If the principal has been tried and acquit- 
 ted, a person charged as accessory should be 
 discharged on motion, but if the former is 
 not found the latter may by statute be tried 
 ami convicted; United States v. Crane, 4 Mc- 
 Lean, 317, Fed. Cas. No. 14,888. The trial of 
 an accessory may proceed where the prin- 
 cipal enters a plea of guilty, and his with- 
 drawal of it during the trial of the former 
 does not affect the validity of a conviction. 
 
 One Indicted as an aider and abettor of 
 the crime of murder may be convicted and 
 sentenced for that offence, notwithstanding 
 the principal offender had been tried pre- 
 viously, and convicted and sentenced for 
 manslaughter only; Goins v. State, 46 Ohio 
 St. 457, 21 N. E. 476. 
 
 In offenses less than felony all are prin- 
 cipals, and on information charging one as 
 principal he may be convicted of aiding and 
 abetting; [1907] 1 K. B. 40. 
 
 See Abettor; Aiding and Abetting; 
 Principal. 
 
 ACCESSORY ACTIONS. In Scotch Law. 
 
 Those which are in some degree subservient 
 to others. Bell Diet. 
 
 ACCESSORY CONTRACT. One made for 
 assuring the performance of a prior contract, 
 either by the same parties or by others ; such 
 as suretyship, mortgages, and pledges. 
 
 It is a general rule that payment or release 
 of the debt due, or the performance of a 
 thing required to be performed by the first 
 or principal contract, is a full discharge of 
 such accessory obligation; Pothier, Ob. 1, c. 
 1, s. 1, art. 2, n. 14; id. n. 182, 1S6 ; see 8 
 Mass. 551 ; Waring v. Smyth, 2 Barb. Ch. 
 (N. Y.) 119, 47 Am. Dec. 299; Blodgett v. 
 Wadhams, Lalor's Supp. (N. Y.) 65; Ackla 
 v. Ackla, G Pa. 228; Whittemore v. Glbl 
 N. EL 4S4; and that an assignment of the 
 principal contract will carry the accessory 
 contract with it; Donley v. Hays, 17 S. & R. 
 (Pa.) 400; Jackson v. P.lodget, 5 Cow. (N. 
 Y.) 202; Ord v. McKee. 5 Cal. 515; Crow v. 
 . 4 la. 434; Whittemore v. Gibbs, 24 
 N. II. 484. 
 
 If the accessory contract be a contract 
 by which one is to answer for the debt, de- 
 fault or miscarriage of another, it must, un- 
 der the statute of frauds, be in writing, and 
 disclose the consideration, either explicitly, 
 or by the use of terms from which it may 
 be implied ; 5 M. & W. 128; 5 B. & Ad. 1109; 
 Bickford v. Gibbs, S Cush. (Mass.) 156; 
 Campbell v. Knapp, 15 Pa. 27; Gates v. Mc- 
 Kee, 13 N. Y. 232, 04 Am. Dec. 545; Sp 
 r. Carter, 49 N. C. 287; Schoch v. McLane, 
 62 Mich. 454, 29 N. W. 76. Such a contract 
 is not assignable so as to enable the assignee 
 to sue thereon in his own name; True v. 
 
 Fuller, 21 Pick. (Mass.) l rfettt v. 
 
 Hewlt, 5 Wend. (N. Y.) 
 
 rty to secure the 6 does 
 
 not come within the statute of fraui 
 v. Mott, 76 Cal. 171, 18 Pac. 260. 
 
 ACCIDENT | 
 caderc, to fall). An event which, under the 
 circumstances, is unusual and 
 An event the real cause of which cannot be 
 traced, or is at least not apparent Wi 
 St. L, & Pac Ry. Co. v. Locke, 112 
 14 X. E. 301, 2 Am. St Rep. 193. 
 
 The happening of an event without the 
 concurrence of the will of the person by 
 whose'agency it was caused; or the happen- 
 ing of an event without any hum 
 The burning of a house in consequence of a 
 fire made for the ordinary purposes of cook- 
 ing or warming the house is an accident of 
 the first kind; the burning of the same h'>use 
 by lightning would be an accident of the 
 second kind; 1 Fonbl. Eq. 374, 375, n. ; Mor- 
 ris v. Piatt, 32 Conn. 85; Crutchfield v. It 
 Co., 76 X. C. 322; Hutchcraft's Ex'r v. Ins. 
 Co., 87 Ky. 300, 8 S. W. 570. 12 Am. St Rep. 
 An accident may proceed or result from 
 negligence; McCarty v. Ky. Co., 30 Pa. 247; 
 Ider v. Ins. Co., 24 Wis. 28, 1 Am. Rep. 
 257; and see 11 Q. B. 347; but a misfortune 
 in business is not an accident; Langdon v. 
 Bowen, 46 Yt. 512. As to what the term in- 
 cludes see Insurance, sub-tit. Accident In- 
 surance. See Inevitable Accident. 
 
 In Equity Practice. Such an unforeseen 
 event, misfortune, loss, act,, or omission as 
 is not the result of any negligence "r mi<- 
 conduct in the party. I 
 Story, Eq. Jur. § 78. 
 
 An occurrence in relation to a contract 
 which was not anticipated by the parties 
 when the same was entered into, and • 
 gives an undue ad to one of them 
 
 over the other in a court of law; Jeremy, 
 Eq. 358. This definition is objected to, be- 
 cause, as accidents may arise in relation to 
 other things besides contracts, it is inac- 
 curate in confining accidents to cont r 
 besides, it does not exclude cases of unan- 
 ticipated occurrence resulting from th 
 ligence or misconduct of the party seeking 
 relief. See also 1 Spence, Eq. Jur. 62S 
 many balances it closely resembles Mistake, 
 which see. 
 
 In general, courts of equity will relii 
 party who cannot obtain justice at law from 
 the consequences of an accident which will 
 justify the interposition of a court of equity. 
 
 The jurisdiction which equity exej 
 case of accident is mainly of two sorts: 
 over bonds with penalties to prevent a for- 
 feiture when- the failure is the result of 
 
 at; 2 Freem. Ch. 128; i Spence, 
 Jur. 629; Rives v. Toulmin, 2.". Ala. 452; Gar- 
 vin v. Squires, 9 Ark. 533, 50 Am. Dee 221. 
 Chase v. Barrett, 4 Paige, Ch. (X. Y.) 14S; 
 Price's Ex'r v. Fuqua's Adm'r, 4 Munf. (Va.)
 
 ACCIDENT 
 
 102 
 
 ACCIDENTAL 
 
 68; Streeper v. Williams, 4S Pa. 450; as 
 sickness; Jones v. Woodmill, 1 Root (Conn.) 
 29S; Doty v. Whittlesey, 1 Root (Conn.) 
 ;-;l0 ; or where a bond has been lost ; Deans 
 v. Dorteh, 40 N. C. 331; but if the penalty be 
 liquidated damages, there can be no relief; 
 Merwin, En.. § 409. And, second, where a 
 negotiable or other instrument has been lost, 
 in which case no action lay at law, but 
 where equity will allow the one entitled to 
 recover upon giving proper indemnity ; 4 
 Price 176; 7 B. & C. . 90 ; Savannah Nat. 
 Banl; v. 1 la skins, 101 Mass. 370, 3 Am. Rep. 
 373; Bisph. Eq. § 177. In some states it has 
 been held that a court of law can gender 
 judgment for the amount, requiring the de- 
 fendant to give a bond of indemnity ; Bridge- 
 ford v. Mfg. Co., 34 Conn. 540, 91 Am. Dec. 
 744; Swift v. Stevens, 8 Conn. 431; Almy 
 v. Reed, 10 Cush. (Mass.) 421. Relief against 
 a penal bond can now be obtained in almost 
 all common-law courts ; Merwin, Eq. § 411. 
 
 The ground of equitable interference 
 where a party has been defeated in a suit at 
 law to which he might have made a good 
 defence had he discovered the facts in sea- 
 son, may be referred also to this head; 
 Jones v. Kilgore, 2 Rich. Eq. (S. C.) 63; 
 Pearce v. Chastain, 3 Ga. 226, 46 Am. Dec. 
 423; Brandon v. Green, 7 Humphr. (Tenn.) 
 130; Meek v. Howard, 10 Smedes & M. 
 (Miss.) 502; Davis v. Tileston, 6 How. (U. 
 S.) 114, 12 L. Ed. 366; see Pemberton v. 
 Kirk, 39 N. C. 178, but in such case there 
 must have been no negligence on the part 
 of the defendant; Semple v. McGatagan, 10 
 Smedes & M. (Miss.) 98; Brandon v. Green, 
 7 Humphr. (Tenn.) 130; Miller v. McGuire, 
 Morr. (la.) 150; Cosby's Heirs v. Wickliffe, 
 7 B. Monr. (Ky.) 120. 
 
 Under this head equity will grant relief 
 in cases of the defective exercise of a power 
 in favor of a purchaser, creditor, wife, child, 
 or charity, but not otherwise; Bisph. Eq. § 
 182. So also in other cases, viz., where a 
 testator cancels a will, supposing that a 
 later will is duly executed, which it is not; 
 where boundaries have been accidentally 
 confused; where there has been an acciden- 
 tal omission to endorse a promissory note, 
 etc.; id. § 183. 
 
 It is exercised by equity where there is 
 not a plain, adequate, and complete remedy 
 at law ; Tucker v. Madden, 44 Me. 206 ; but 
 not where such a remedy exists; Hudson v. 
 Kline. 9 Gratt. (Va.) 379; Grant v. Quick, 
 5 Sandf. (N. T.) 612; and a complete excuse 
 must be made ; English v. Savage, 14 Ala. 
 342. 
 
 See Inevitable Accident; Mistake; Fob- 
 tuitous Event; Negligence; Insubance; 
 Act of God. 
 
 ACCIDENT INSURANCE. See Insur- 
 ance. 
 
 ACCIDENTAL. Not according to the usu- 
 al course of things; casual; fortuitous. 
 
 United States Mat. Ace. Ass'n v. Barry, 131 
 D. S. 100, 9 Sup. Ct. 755, 33 L. Ed. 00. 
 
 ACCIDENTAL DEATH. See Death; In- 
 surance. 
 
 ACCOMENDA. A contract which takes 
 place when an individual intrusts personal 
 property with the master of a vessel, to be 
 sold for their joint account 
 
 In such case, two contracts take place: first, the 
 contract called mandatum, by which the owner of 
 the property gives the master power to dispose of 
 it; and the contract of partnership, in virtue of 
 which the profits are to be divided between them. 
 One party runs the risk of losing his capital, the 
 other his labor. If the sale produces no more than 
 first cost, the owner takes all the proceeds: it is 
 only the profits which are to be divided ; Emerigon, 
 Mar. Loans, s. 5. 
 
 ACCOMMODATION PAPER. Promissory 
 notes or bills of exchange made, accepted, 
 or endorsed without any consideration there- 
 for. 
 
 Such paper, in the hands of the party to 
 whom it is made or for whose benefit the 
 accommodation is given, is open to the de- 
 fence of want of consideration, but when 
 taken by third parties in the usual courso 
 of business, is governed by the same rules 
 as other paper ; 2 Kent 86 ; 1 M. & W. 212 ; 
 33 Eng. L. & Eq. 282; Pierson v. Boyd, 2 
 Duer (N. Y.) 33; Farmers' & Mechanics' 
 Rank v. Rathbone, 26 Vt. 19, 5S Am. Dec. 
 200; Yates v. Donaldson, 5 Md. 3S9, 61 Am. 
 Dec. 283; Mosser v. Criswell, 150 Pa. 409, 
 24 Atl. 61S. 
 
 Where an accommodation note is purchas- 
 ed from the payee at a usurious rate, it is 
 void as against the accommodation maker, 
 though it was represented as business paper ; 
 Whedon v. Hogan, 8 Misc. Rep. 323, 28 N. 
 Y. Supp. 554. 
 
 An endorsement on accommodation paper 
 may be withdrawn before it is discounted 
 unless rights have in the meantime, for val- 
 uable consideration, attached to others; 
 Berkeley v. Tinsley, 88 Va. 1001, 14 S. E. 
 842. 
 
 The Neg. Instr. Acts do not change the 
 former rules as to who may become accom- 
 modation parties. Selover, Neg. Instr. 105. 
 
 ACC0MM0DATUM. The same as comino- 
 datum, q. v.; Anders. Law Diet, quoting Sir 
 William Jones. The word is not found in 
 Kent, or in Edw. Bailments. 
 
 ACCOMPLICE (Lat. ad and complicare — 
 con, with, together, plicare, to fold, to wrap, 
 — to fold together). 
 
 In Criminal Law. One who is concerned 
 In the commission of a crime. 
 
 "One who is in some way concerned in 
 the commission of a crime, though not as a 
 principal." Cross v. People, 47 111. 152, 95 
 Am. Dec. 474. 
 
 "One of many equally concerned in a fel- 
 ony, the term being generally applied to 
 those who are admitted to give evidence 
 against their fellow criminals for the fur-
 
 ACCOMPLICE 
 
 103 
 
 ACCOMPLICE 
 
 therance of justice, which might otherwise 
 be eluded." Cross v. People, 47 I1L 152, 05 
 Am. Dec. 474. 
 
 "One who being present aids by acts or 
 encourages by words the principal offender 
 In the commission of the offense," lfi 
 neous as :i definition; such person is a prin- 
 cipal; Smith v. State, 13 Tex. App. 507. He 
 must in some manner assist or participate 
 in the criminal act, and by that com 
 he becomes equally involved in guilt with 
 the other party; People v. Smith, 28 Bun 
 (N. Y.) G2G; Cross v. People, 47 111. 152, 95 
 Am. Dec 474. The purchaser of I 
 in violation of the law is not an accomplice; 
 Stale v. Teahan, 50 Conn. 92; People v. 
 Smith, 23 Hun (N. Y. ) 626; nor is a minor 
 child who is coerced into assisting In an 
 unlawful act; People v. Miller, 0G Cal. 468, 
 6 Pac. 00; Deal v. State, 72 Ca. 200; nor one 
 who does not immediately disclose the fact 
 that a homicide has been committed; Uird 
 T. U. S., 187 U. S. 118, 23 Sup. Ct 42, 47 
 L. Ed. 100; nor one who joins in a game 
 with others who are betting, but does not 
 bet himself; Bass v. State, 37 Ala. 400. 
 
 The term in its fulness includes in its meaning all 
 persons who have been concerned in the commis- 
 sion of a crime, all participes criminis, wh 
 they are considered in strict legal propriety as prin- 
 cipals in the first or second degree, or merely as 
 accessaries before or after the fact; Fost Or. Cas. 
 341 ; 1 Russ. Cr. 21 ; 4 Bla. Com. 331 ; 1 Phil. Ev. 
 28; Merlin, Repert. Complice. 
 
 It has been questioned, whether one who was an 
 accomplice to a suicide can be punished as such. A 
 case occurred in Prussia where a soldier, at the re- 
 quest of his comrade, had cut the latter in pieces; 
 for this he was tried capitally. In the year 1817, a 
 young woman named Leruth received a recompense 
 for aiding a man to kill himself. He put the point 
 of a bistoury on his naked breast, and used the 
 hand of the young woman to plunge it with greater 
 force into his bosom; hearing some noise, he or- 
 dered her away. The man, receiving effectual aid, 
 was soon cured of the wound which had been in- 
 flicted, and she was tried and convicted of having 
 inflicted the wound. Lepage, Science du Droit, ch. 
 2, art. 3, 5 5. The case of Saul, the King of I 
 and his armor-bearer (1 Sam. xxxi. 4), and of David 
 and the Amalekite (2 Sam. 1. 2), will doubtless oc- 
 cur to the reader. 
 
 It has been held, that, If one counsels another to 
 commit suicide, he Is principal in the murder ; for 
 it is a presumption of law that advice has the influ- 
 ence and effect intended by the adviser, unless it is 
 shown to have been otherwise, as, for example, that 
 it was received with scoff or manifestly rejected 
 and ridiculed at the time; Commonwealth v. 'Bow- 
 en, 13 Mass. 359, 7 Am. Dec. 154. 
 
 the accomplice should be confirmed, i 
 
 one or more of the pria ;ify a 
 
 conviction of those prisoners with 
 
 whom there is no confirmation; 1 ! 
 
 31 Hov 7 : 7 Cox, Cr. 
 
 Com. v. Savory, 10 Cush. • 
 
 lin.s v. ' 98 111. 584, 38 Am. i 
 
 Flanagln v. State, 25 Ark. Le v. 
 
 ;, 5 Mich. 305; Carroll v. Co: 
 107. Bee 1 Post & F. 388; Com. v. ; 
 127 Mi Am. Rep. 391, 
 
 Though the evidence of an e un- 
 
 corroborated is sufficient, if the jur 
 fully convinced of the truth of his 
 ments; Linsday v. People, G.°, N. Y. 
 Collins v. People, 08 111. 584, 38 Am 
 105; it is the settled course of practice in 
 England not to convict a prisoner, exce 
 under very special circumstances, upon the 
 uncorroborated testimony of an accomplice; 
 ; C. of Cr. App. In the 
 federal courts the testimony of an accomplice 
 need not necessarily be corroborated ; A 
 v. U. S., 158 Fed. 606, 85 0. C. A. 
 should be received with caution; U. S. v. 
 Ybanez, 53 Fed. 536; State v. Minor. 117 Mo. 
 302 22 S. W. 1085; state v. Patters- 
 Kan. 335, 34 Pac. 7 
 
 This general statement is substantially 
 the result of tl In both countries as 
 
 to the treatment of the testimony of an ac- 
 complice. As to the corrobor aired, 
 the cases may he divided into three c 
 requiring corroboration — 1. Of that part of 
 the testimony which connects the i 
 with the crime. 2. Of a material part of the 
 testimony. 3. Of any portion of the 
 mony. The cases may be found in an able 
 note in 71 Am. Dec. 671. 
 
 An accomplice, upon making a full d 
 sure, has a just claim but not a legal right 
 to recommendation for a pardon, whicl 
 not however be pleaded in bar to the 
 ment; U. S. v. Ford. 99 U. S. L Fd. 
 
 300; Ex parte Wells. 18 How. (U. 3 
 15 L. Ed. 421 ; but he may use it to put off 
 the trial, in order to give him time to apply 
 for a pardon; id.: Cowp. 331; 1 Leach 115, 
 
 An accomplice is not incompetent when in- 
 dicted separately; State v. Umble, 115 Mo. 
 452, 22 S. W. 378. 
 
 See King's Evidence; Trover; Accessory; 
 Abortion. 
 
 It is now finally settled that it Is not a 
 rule of law but of practice only that a jury 
 should not convict on the unsupported tes- 
 timony of an accomplice. Therefore, if a 
 jury choose to act on such evidence only, 
 the conviction cannot be quashed as had In 
 law. The better practice is for the Judge 
 to advise the jury to acquit, unless the tes- 
 timony of the accomplice is corroborated, not 
 only as to the circumstances of the offence, 
 but also as to the participation of the accus- 
 ed in the transaction; and when several par- 
 ties are charged, that it is not sufficient that 
 
 ACCORD AND SATISFACTION, 
 lent between two parties t 
 accept something in satisfaction of a right 
 of action which one has against the 
 which when performed is a bar to all ac- 
 tions upon this account; generally used in 
 the il and satisfaction." 
 
 Pda. Com. 15; F.acon. Abr Franklin 
 
 Fire Ins. Co. v. Ha mill, 5 Md. 17". It may 
 be pleaded to all itions; 
 
 Bacon, Abr. Accord (B) ; Pulliam v. Taylor. 
 50 Miss. 257. 
 
 Though here correctly defined as now
 
 ACCORD AND SATISFACTION 
 
 104 
 
 ACCORD AND SATISFACTION 
 
 recognized as "an agreement," it should be 
 borne in mind that the acceptance of satis- 
 faction for damages caused by a tort was 
 recognized as a bar to a subsequent action 
 long before the recognition of the validity 
 of contracts. This is shown by Professor 
 Ames in 9 Harv. L. Rev. 285, by authorities 
 as far back as the time of Edward I. The 
 recognition of an accord as a valid bilateral 
 contract was a tardy one as shown by the 
 early cases collected in 17 Harv. L. Rev. 
 459, though it may now be considered as a 
 contract for the breach of which an action 
 will lie; Very v. Levy, 13 How. (U. S.) 345, 
 14 L. Ed. 173; Savage v. Everman, 70 Pa. 
 310, 10 Am. Rep. GSO ; Schweider v. Lang, 29 
 Minn. 254, 13 N. W. 33, 43 Am. Rep. 202; 
 White v. Gray, OS Ale. 579; Hunt v. Brown, 
 146 Mass. 253, 15 N. E. 587; Chicora Ferti- 
 lizer Co. v. Dunan, 91 Md. 144, 4G Atl. 347, 
 50 L. R. A. 401; 15 Q. B. G77 ; 10 C. B. (N. 
 S.) 259. 
 
 It must be legal. An agreement to drop 
 a criminal prosecution, as a satisfaction for 
 an assault and imprisonment, is void; 5 
 East 294 ; Smith v. Grable, 14 la. 429 ; Walan 
 v. Kerby, 99 Mass. 1. 
 
 It must be advantageous to the creditor, 
 and he must receive an actual benefit there- 
 from which he would not otherwise have 
 had; Keeler v. Neal, 2 Watts (Pa.) 424; 
 Davis v. Noaks, 3 J. J. Marsh. (Ky.) 497; 
 Hutton v. Stoddart, 83 Ind. 539. Restoring 
 to the plaintiff his chattels or his land, of 
 which the defendant has wrongfully dispos- 
 sessed him, will not be any consideration to 
 support a promise by the plaintiff not to sue 
 him for those injuries; Bacon. Abra. Accord, 
 A; Jones v. Bullitt, 2 Litt. (Ky.) 49; Blinn 
 v. Chester, 5 Day (Conn.) 300; Williams v. 
 Stanton, 1 Root (Conn.) 42G ; Le Page v. 
 McCrea, 1 Wend. (N. Y.) 1G4, 19 Am. Dec. 
 469. The payment of a part of the whole 
 debt due is not a good satisfaction, even if 
 accepted; 1 Stra. 42G ; 2 Greenl. Ev. § 28; 
 10 M. & W. 367: 12 Price, Ex. 183; Hardey 
 v. Coe, 5 Gill (Md.) 189; Warren v. Skinner, 
 20 Conn. 559; Hayes v. Davidson, 70 N. C. 
 573; Foster v. Collins, 6 Heisk. (Tenn.) 1; 
 Smith v. Bartholomew, 1 Mete. (Mass.) 276, 
 35 Am. Dec. 365; Hinckley v. Arey, 27 Me. 
 362; White v. Jordon, 27 Me. 370; Eve v. 
 Mosely, 2 Strobh. (S. C.) 203; Williams v. 
 •id. 15 B. Monr. (Ky.) 566; Line v. 
 Nelson, 38 N. J. L. 358 ; Gussow v. Beineson, 
 76 N. J. L. 209, 68 Atl. 907 ; Schlessinger v. 
 Schlessinger, 39 Colo. 44, 88 Pac. 970, 8 L. 
 R. A. (N. S.) 863; Hayes v. Davidson, 70 
 N. C. 573; Curran v. Rummell, 118 Mass. 
 482; Tucker v. Murray, 2 Pa. Dist R. 497; 
 otherwise, however, if the amount of the 
 claim is disputed ; Cro. Eliz. 429 ; 3 M. & W. 
 651 ; McDaniels v. Lapham, 21 Vt. 223 ; 
 Stockton v. Frey, 4 Gill (Md.) 406, 45 Am. 
 Dec. 138; Palmerton v. Huxford, 4 Denio 
 (N. Y.) 166; Howard y. Norton, 65 Barb. 
 
 (X. Y.) 161; Bull v. Bull, 43 Conn. 455; 
 Tyler Cotton Press Co. v. Chevalier, 56 Ga. 
 194; McCall v. Nave. 52 Miss. 494; Childs v. 
 Lus. Co., 56 Vt. 609; Brooks v. Moore, 07 
 Barb. (N. Y.) 393; Stimpson v. Poole, 141 
 Mass. 502, 6 N. E. 705; Perkins v. Headley, 
 49 Mo. App. 556; or contingent; Bryant v. 
 Proctor, 14 B. Monr. (Ky.) 451; even if a 
 favorable result of a suit could not have 
 been predicted; Zoebisch v. Von Minden, 120 
 N. Y. 400, 24 X. E. 795 ; or there is a release 
 under seal; Redmond & Co. v. Ky., 129 Ga. 
 133, 58 S. E. 874; Gordon v. Moore, 44 Ark. 
 349, 51 Am. Rep. COO; or a receipt in full 
 upon payment of an undisputed part of the 
 claim after a refusal to pay what is disput- 
 ed ; Chicago, M. & St. P. R. Co. v. Clark, 178 
 U. S. 353, 20 Sup. Ct. 924, 44 L. Ed. 1099 
 (citing a long line of cases) ; Tanner v. Mer- 
 rill, 108 Mich. 58, 65 N. W. 0(54, 31 L. R. A. 
 171, 62 Am. St Rep. 687 ; Ostrander v. Scott, 
 161 111. 339, 43 N. E. 1089 ; or the debtor is 
 insolvent; Shelton v. Jackson, 20 Tex. Civ. 
 App. 443, 49 S. W. 415; or even thought to 
 be insolvent but found not to be; Bice v. 
 Mortgage Co., 70 Minn. 77, 72 N. W. 820 
 (see criticism of the last two cases in 12 
 Harv. L. Rev. 515, 521) ; or in contempla- 
 tion of bankruptcy; Melroy v. Kemmerer, 
 218 Pa. 381, 67 Atl. 699, 11 L. R. A (N. S.) 
 101S, 120 Am. Sc Rep. 888 ; or there are mu- 
 tual demands ; 6 El. & B. 691 ; and if the 
 negotiable note of the debtor, 15 M. & W. 
 23, or of a third person, Brooks v. White, 2 
 Mete. (Mass.) 2S3, 37 Am. Dec. 95; Bank of 
 Montpelier v. Dixon, 4 Vt 587, 24 Am. Dec. 
 640 ("where the cases are collected) ; Boyd 
 v. Hitchcock, 20 Johns. (N. J.) 70, 11 Am. 
 Dec. 247 ; Kellogg v. Richards, 14 Wend. ( N. 
 Y.) 116; Sanders v. Bank, 13 Ala. 353; 4 
 
 B. & C. 506; Brassell v. Williams, 51 Ala. 
 349; for part, be given and received, it is 
 sufficient; or if a part be given at a differ- 
 ent place, Jones v. Perkins, 29 Miss. 139, 
 64 Am. Dec. 136, or an earlier time, it will 
 be sufficient; Goodnow v. Smith, 18 Pick. 
 (Mass.) 414, 29 Am. Dec. 600; and, in gen- 
 eral, payment of part sudiees if any addi- 
 tional benefit be received; Bowker v. Har- 
 ris, 30 Vt. 424; Rose v. Hall, 26 Conn. 392, 
 68 Am. Dec. 402; Keeler v. Salisbury, 27 
 Barh (N. Y.) 485; Mathis v. Bryson, 49 N. 
 
 C. 508; Cool v. Stone, 4 la. 219; Potter v. 
 Douglass, 44 Conn. 541. 
 
 "The result of the modern cases is that 
 the rule only applies when the larger sum is 
 liquidated, and where there is no considera- 
 tion whatever for the surrender of part of 
 it; and while the general rule must be re- 
 garded as well settled, it is considered so 
 far with disfavor as to be confined strictly 
 to cases within it;" Chicago, M. & St. P. R. 
 Co. v. Clark, 178 U. S. 353, 20 Sup. Ct 924, 
 44 L. Ed. 1099, reversing 92 Fed. 9G8, 35 C. 
 C. A. 120. 
 
 Acceptance by several creditors, by way of
 
 ACCORD AND SATISFACTION 
 
 105 
 
 ACCORD AND SA ITON 
 
 composition of sums respectively less than 
 their demands, held to bar actions for the 
 residue; Murray v. Snow, 37 la. 410; and 
 it makes no difference that one creditor re- 
 fuses to sign, where the agreement is not 
 upon condition that, all should sign: Craw- 
 ford v. Krueger, 201 Pa. 348, 50 Atl. 931. 
 The receipt of specific property, or the per- 
 formance of services, if agreed to, is suffi- 
 cient, whatever its value ; Reed v. Bartlctt, 
 10 Pick. (.Mass.) 273; Blinn v. Chesto 
 Day (Conn.) 300; Brassell v. Williams, 51 
 Ala. 349; provided the value be not agreed 
 upon; Howard v. Norton, G5 Barb. (N. Y.) 
 101 ; but both delivery and acceptance must 
 be proved ; Mare v. Miller, 1 Wash. C. C. 328, 
 Fed. Cas. No. 9,362; Sinard v. Patterson, 3 
 Blackf. (Ind.) 354; State Bank v. Littlejohn, 
 18 N. C. 505; Stone v. Miller, 10 Pa. 450; 
 
 4 Eng. L. & Eq. 185. See full notes in 2U 
 L. R. A. 785; 11 L. R. A. (N. S.) 1018; 14 
 id. 954. 
 
 It must be certain. An agreement that 
 the defendant shall relinquish the possession 
 of a house in satisfaction, etc., is not valid, 
 unless it is agreed at what time it shall be 
 relinquished; Yelv. 125. See 4 Mod. 88; 
 Bird v. Caritat, 2 Johns. (N. Y.) 342, 3 Am. 
 Dec. 433; Frentress v. Markle, 2 G. Greene 
 (la.) 553; United States v. Clarke, 1 
 Hempst. 315, Fed. Cas. No. 14,812; Costello 
 v. Cady, 102 Mass. 140. 
 
 It must be complete. That is, everything 
 must be done which the party undertakes 
 to do ; Comyns, Dig. Accord, B, 4 ; Cro. Eliz. 
 40 ; Eng. L. & Eq. 296 ; Frentress v. Markle, 
 2 G. Greene (la.) 553 ; Clark v. Dinsmore, 
 
 5 N. H. 136; Watkinson v. Inglesby, 5 Johns. 
 (N. Y.) 386; Bigelow v. Baldwin, 1 Gray 
 (Mass.) 245; Frost v. Johnson, 8 Ohio 393; 
 Woodruff v. Dobbins, 7 Blackf. (Ind.) 582; 
 Bryant v. Proctor, 14 B. Monr. (Ky.) 459; 
 Ballard v. Noaks, 2 Ark. 45; dishing v. Wy- 
 man, 44 Me. 121; Reed v. Martin, 29 Pa. 
 179; Flack v. Garland, 8 Md. 188; Overton 
 v. Conner, 50 Tex. 113 : Young v. Jones, 64 
 Me. 563, 18 Am. Rep. 279 ; but this perform- 
 ance may be merely the substitution of a 
 new undertaking for the old by way of no- 
 vation if the parties so intended, whereby the 
 original claim is extinguished; 2 B. & Ad. 
 32S; Nassoiy v. Tomlinson, 148 N. Y 
 
 42 N. E. 715, 51 Am. St. Rep. 695; Gerhart 
 Realty Co. v. Assurance Co., 94 Mo. App. 
 356, 68 S. W. S6; Brunswick & Western R. 
 Co. v. Clem, 80 Ga. 534, 7 S. E. 84 ; Yazoo & 
 Mississippi Val. R. Co. v. Fulton, 71 Miss. 
 385, 14 South. 271; Goodrich v. Stanley, 24 
 Conn. 613; Creager v. Link, 7 Md. 259; 16 
 Q. B. 1039. 
 
 The doctrine that payment by or with the 
 money of a third person is not a discharge 
 of the debtor was established in Cro. Eliz. 
 541, which was followed in the early Ameri- 
 can cases, but its doctrine was much limited 
 in 9 C. B. 173, and 10 Exch. 845. where it 
 was held that payment would be good if 
 
 made either with previous authority or sub- 
 sequent ratification of the debtor, and that 
 the latter could be made at the trial. This 
 view has prevailed in England and it Lf 
 that a plea of payment is sufficient ra 
 tion; L. R. Exch. 124. 
 
 In this country the weight of authority Is 
 in favor of recognizinj; such payment 
 defense, special recognition being ac- 
 to facts showing that the payment was on 
 behalf of the debtor and ratified by him; 
 Snyder v. Pharo, 25 Fed. "'.is : Hartley v. 
 Sandford, 00 N. J. Tv. 632, 50 Atl. 454, ", I 
 II. -V 206. In New York the early 
 was followed in Bleakley v. White. 4 
 (N. Y.) 654; Daniels v. Hallenbeck, 19 ' 
 (N. Y.) 408; Atlantic Dock Co. v. Ma 
 N. Y. 64; but in Wellington v. Kelly, si N. 
 Y. 543, the question was not derided, but 
 passed with a reference to the limitation in 
 England which had been followed in Clow 
 v. Borst, 6 Johns. (X. y.) 37. which had 
 been authoritatively overruled, and we need 
 not 'now determine whether it should any 
 longer be regarded as authority." A 
 City of Albany v. MeXamara, 117 N. Y. 168, 
 22 N. E. 931, 6 L. R. A. 212; Windmuller v. 
 Rubber Co., 123 App. Div. 424, 107 X. Y. 
 Supp. 1095. In Kentucky the 
 pra from Stark's Adm'r v. Thompson's Hx'rs. 
 3 T. B. Monr. (Ky.) 302, stands without any 
 subsequent ruling on the point. 
 
 The cases are collected in 23 L. R. A. 120. 
 and 17 Harv. L. Rev. 472. 
 
 It is a question for the jury whether the 
 agreement or the performance w. 
 in satisfaction: Bahrenburg v. Pruil Co., 128 
 Mo. App. 526, 107 S. W. 440; 10 Q. B. 
 and in some cases it is sufficient if perform- 
 ance be tendered and refused ; 2 B. & Ad. 
 328. If, however, it was the performance 
 of the accord which was to be the satisfac- 
 tion, the creditor may sue on either the old 
 cause of action or the accord ; Babcock v. 
 Hawkins, 23 Vt. 561; but if he sues on the 
 original claim without giving time for per- 
 formance, the debtor must not go into equi- 
 ty, but may have his action on the at 
 Hunt v. Brown, 146 Mass. 253, 15 X. I 
 
 An accord with tender of satisfaction is 
 not sufficient, but it must be executed; 3 
 Bingh. N. C. 715; Brooklyn Bank v. De 
 Grauw, 23 Wend. (X. Y.) 342, 35 Am. Dec. 
 509; Simmons v. Clark, 50 111. 96; Cashing 
 v. Wyman, 44 Me. 121; Hosier v. Hursh, 151 
 Pa. 415, 25 Atl. 52; Phinizy v. Push. 129 
 Ga. 479, 59 S. E. 259; Clarke v. HawkJ 
 B. T. 219; but where there is a sufficient con- 
 sideration to support the agreement, it may 
 be that a tender, though unaccepted, would 
 bar an action ; Story, Contr. § 1357 ; Coit v. 
 Houston, 3 Johns. Cas. (N. Y.) 243. Satis- 
 faction without accord is not sufficient ; 9 
 M. & W. 596; nor is accord without satisfac- 
 tion; 3 B. & C. 257. 
 
 The burden of proving accord and satis- 
 faction is on him who alleges it; but it may
 
 ACCORD AND SATISFACTION 
 
 IOC 
 
 ACCORD AND SATISFACTION 
 
 be established by conduct and circumsl 
 such as the silence of the debtor after notice 
 that the creditor will not accept a tender in j 
 full payment ; Bahrenburg v. Fruit Co., 128 
 Mo. App. 520, 107 S. W. 440. 
 
 A case of very frequent occurrence is 
 where the amount is disputed or unliquidat- 
 ed and the debtor sends a check for part of 
 the amount as in full if accepted, which tbe 
 creditor retains and protests that it is re- 
 ceived only in part payment. The weight of 
 American authority now holds that there is 
 an accord and satisfaction ; Fuller v. Kemp, 
 L38 N. Y. 231, 33 N. E. 1084. 20 L. R. A. 7S5 ; 
 Nassoiy v. Tomlinson, 148 N. Y. 326, 42 N. 
 B. 715, 51 Am. St. Rep. 695; Tollman & Bros. 
 Coal & Sprinkling Co. v. City of St. Louis, 
 145 Mo. 651, 47 S. W. 563; McCormick v. 
 City of St. Louis, 166 Mo. 315, 65 S. W. 1038; 
 Bingham v. Browning, 197 111. 122, 64 N. E. 
 317; Anderson v. Granite Co., 92 Me. 429, 43 
 Atl. 21, 69 Am. St. Rep. 522; Connecticut 
 River Lumber Co. v. Brown, 68 Vt. 239, 35 
 Atl. 56; Potter v. Douglass, 44 Conn. 541; 
 Talbott v. English, 156 Ind. 299, 59 N. E. 
 Hamilton & Co. v. Stewart, 108 Ga. 
 472, 34 S. E. 123; Neely v. Thompson, 68 
 Kan. 193, 75 Pac. 117; Cooper v. R. Co., 82 
 Miss. 634, 35 South. 162 (where a receipt in 
 full was signed and a verbal protest made 
 to the creditor's agent that no rights were 
 waived); Hull v. Johnson & Co., 22 R. I. 66, 
 46 Atl. 182 (where the check was specifically 
 marked good only if accepted in full, and 
 those words were stricken out before cash- 
 ing it). Some cases explicitly require the 
 statement that the payment is in full or cir- 
 cumstances amounting to it in effect; Fre- 
 mont Foundry & Mach. Co. v. Norton, 3 Neb. 
 (Unof .) 804. 92 N. W. 1058 ; Whitaker v. Eil- 
 enberg, 70 App. Div. 489, 75 N. Y. Supp. 106; 
 Van Dyke v. Wilder, 66 Vt. 579, 29 Atl. 1016. 
 One New York case requires separate no- 
 tice. The indebtedness was for legal serv- 
 ices and a check was sent for less than the 
 amount named ; plaintiff wrote that under 
 no circumstances would he accept it in full 
 but would apply it on account ; having wait- 
 ed two days for a reply and received none, he 
 collected the check ; held no accord and sat- 
 isfaction ; Mack v. Miller, 87 App. Div. 359, 
 84 N. Y. Supp. 440. See 17 Harv. L. Rev. 
 272. 469. 
 
 In other states it is held to be no satisfac- 
 tion, but only, as tendered, a payment on 
 account; Krauser v. McCurdy, 174 Pa. 174, 
 34 Atl. 518 ; Louisville, N. A. & C. Ry. Co. v. 
 Helm. 109 Ky. 388, 59 S. W. 323; Demeules 
 v. Tea Co.. 103 Minn. 150, 114 N. W. 733, 14 
 L. R. A. (N. S.) 954, 123 Am. St. Rep. 315; 
 and with these courts is the English Court 
 of Appeal; 22 Q. B. D. 610, where it was 
 held that the keeping of the check sent in 
 satisfaction of a claim for a larger amount 
 was not in law conclusive, but that whether 
 there was an accord and satisfaction was a 
 question for the jury. 
 
 It must be by the debtor or his agent; 
 Booth v. Smith, 3 Wend. (N. Y.) 66; Ellis v. 
 Bibb, 2 Stew. (Ala.) 84; and if made by a 
 stranger, will not avail the debtor in an ac- 
 tion at law; Stra. 592; Stark's Adm'r v. 
 Thompson's Fx'rs, 3 T. B. Monr. (Ky.) 302; 
 Clow v. Borst, 6 Johns. (N. Y.) 37. His rem- 
 edy in such a case is in equity; 3 Taunt. 
 117; 5 East 294. It is often difficult to dis- 
 tinguish whether an agreement for compro- 
 mise is an accord without satisfaction or a 
 novation. It is the tendency of the courts 
 to construe a doubtful case as the latter, 
 which extinguishes the old contract; see 16 
 Y. L. J. 133. It was held that an agreement 
 to pay less than the amount contemplated in 
 an unmatured and contingent obligation, for 
 which the plaintiff had no cause of action, 
 was a novation and that no recovery could be 
 had on the original contract; Bandman v. 
 Finn, 185 N. Y. 508, 78 N. E. 175, 12 L. R. 
 A. (N. S.) 1134. The new undertaking may 
 be executory ; Morehouse v. Bank, 98 N. Y. 
 503; but if it appears directly or inferen- 
 tially that it is accepted in satisfaction, the 
 original cause of action is extinguished; 
 Kromer v. Heim, 75 N. Y. 574, 31 Am. Rep. 
 491; as also if the new contract is incon- 
 sistent with the old; Renard v. Sampson, 12 
 N. Y. 561; Stow v. Russell, 36 111. 18. The 
 original claim need not have been valid, but 
 must have been bona fide; Flegal v. Hoover. 
 156 Pa. 276, 27 Atl. 162; Wehrurn v. Kuhn, 
 61 N. Y. 623. The cases are collected in 
 Clark, Cont. 125. When the consideration is 
 executory, the original obligation continues 
 until the new agreement is executed ; and if 
 that fails, it is revived ; Ramhorger's Adm'r 
 v. Ingraham, 38 Pa. 147. It is not the new 
 agreement, but its execution, which discharg- 
 es the old one; Rogers v. Rogers, 139 Mass. 
 410, 1 N. E. 122; Thomson v. Poor, 147 N. 
 Y. 402, 42 N. E. 13. 
 
 Where an accord and satisfaction is the 
 substitution of a new contract for an old 
 I one, and the promise is accepted without per- 
 formance, it is a novation; Harrison v. Hen- 
 derson, 67 Kan. 194, 72 Pac. 875, 62 L. R. A. 
 760, 100 Am. St. Rep. 393. In case of a dis- 
 puted claim, an agreement to pay part to a 
 third person in satisfaction of the whole is 
 a good consideration; Mitchell v. Knight, 7 
 Ohio Cir. Ct. R. 204. 
 
 Certain English rules are thus stated: 
 Where there has been no performance and a 
 right of action has accrued to one party, the 
 other party may offer a different perform- 
 ance and other amends, which if accepted 
 and executed will discharge his liability. 
 
 Where performance is to be the payment of 
 a sum of money, payment of a smaller sum 
 is not accord and satisfaction. There must 
 be some other consideration. But if paid at 
 an earlier date, or in a different place than 
 that agreed, it is a discharge. A negotiable 
 instrument for a less amount may be a sat-
 
 ACCORD AND SATISFACTION 
 
 107 
 
 ACCOUNT 
 
 lsfaction if accepted for the purpose; Odger, 
 C. L. 757. 
 
 Accord with satisfaction, when completed, 
 has two effects: it is a payment of the debt; 
 and it is a species of sale of the thing given 
 by the debtor to the creditor, in satisfaction; 
 but it differs from it in this, that it is not 
 valid until the delivery of the article, and 
 there is no warranty of the thing thus sold, 
 except perhaps the title; for in regard to 
 this it cannot he doubted that if the debtor 
 gives on an a< cord and satisfaction the goods 
 of another, there would be no satisfaction. 
 But the inteution of the parties is of the 
 utmost consequence; Bowker v. Han 
 Vt. 424; Sutherlin v. Bloomer, 50 Or. 398, 
 9:> Pac. 135; as the debtor will he required 
 only to execute the new contract to that 
 point whence it was to operate a satisfac- 
 tion of the pre-existing liability. 
 
 An accord and satisfaction may he rescind- 
 ed by subsequent agreement; Heavenrich v. 
 Steele, 57 Minn. 221, 58 N. W. 982; Alex- 
 ander v. R. Co., 54 Mo. App. 66; it may be 
 avoided on account of fraud; Butler v. R. 
 Co., 88 Ga. 594, 15 S. E. 668; Ball v. Mc- 
 Geoch, 81 Wis. 160, 51 N. W. 443. 
 
 In America accord and satisfaction may 
 be given in evidence under the general issue 
 in assumpsit, but it must be pleaded specially 
 In debt, covenant and trespass; 2 Greenl. Ev. 
 (15th ed.) § 29. In England it must be plead- 
 ed specially in all cases ; Rose. N. P. 569. 
 See Payment; Acceptance; Agreement; No- 
 vation. 
 
 ACCOUCHEMENT. The act of giving hirl h 
 to a child. It is frequently important to 
 prove the fdiation of an individual; this may 
 be done in several ways. The fact of the 
 accouchement may be proved by the direct 
 testimony of one who was present, as a phy- 
 sician, a midwife, or other person; 1 Bou- 
 vier, Inst. n. 314. See Birth. 
 
 ACCOUNT. A detailed statement of the 
 mutual demands in the nature of debit and 
 credit between parties, arising out of con- 
 tracts or some fiduciary relation; Whitwell 
 v. Willard, 1 Mete. (Mass.) 216; Blakeley v. 
 Biscoe, 1 Hempst. 114, Fed. Cas. No. 18,239; 
 Portsmouth v. Donaldson, 32 Pa. 202, 72 Am. 
 Dec. 782; Turgeon v. Cote, 8S Me. 108, 33 
 Atl. 787. 
 
 A statement of the receipts and payments 
 of an executor, administrator, or other trus- 
 tee of the estate confided to him. 
 
 An ojicn account is one in which some 
 term of the contract is not settled by the 
 parties, whether the account consists of one 
 item or many; Sheppard v. Wilkins, I Ala. 
 02; Goodwin v. Hale. Ala. 438; Dunn v. 
 Fleming's Estate. 7.°. Wis. 545, 41 N. W. 707. 
 
 A form of action called also account ren- 
 der, in which such a statement, and the 
 recovery of the balance which thereby ap- 
 pears to be due, is sought by the party bring- 
 ing it 
 
 In Practice. In Equity. Ji q con- 
 
 current with courts of law is taken over mat- 
 ters of account : Post v. Kimberly, 
 (N. Y.) 170: Bruce v. I'.urdet, 1 J. J. ft 
 
 Xelson v. All( 
 360; McLaren v. Bteapp, l Ga. 378 
 grounds: mutual accounts; i v B 
 
 plicated that they cannot be 
 adjusted in a court of law; 1 Sch. & 1 
 2 li. L. ('as. 28; Hickman v. 
 (Va.) 6; Whitwell v. Willard. i 
 2K5: Oullnm v. Bloodgood, 15 Ala. ::t ; Print- 
 up v. Mitchell, 17 Gi i Am. De< 
 Kaston v. Paxton, 46 Or. 308, 80 
 ill Am. St. Rep. 871; McMullen I. 
 v. Strother, 136 Fed. 295, 69 C. < !. A 
 ('hase v. Phosphate Co., 32 App. Div. i 
 X. Y. Bupp. 220; the existence of a fidi 
 relation between the parties; 1 Sim. Ch. n. 
 s. 573; Massachusetts General Hospital v. 
 Assur. Co., 4 day (Mass.) 227; Kilbourn v. 
 Sunderland, 130 U. S. 505, 9 Sup. Ct 594, 32 
 L. Eil. 1005. A bill for an account must 
 by spi ations one of these grounds 
 of equity; Walker v. Brooks, 125 Ma 
 and it must appear in the stating part of the 
 hill; a prayer for an account is not suffi- 
 cient; Bushnell v. Avery. 121 Mass. 1 
 
 In addition to these peculiar grounds of 
 jurisdiction, equity will grant a discovery in 
 cases of account on the general principles 
 nng discoveries; Knotts v. Tarver. 8 
 Ala. 743; Wilson v. Mallett, -1 Sandf. (N. Y.) 
 112; Walker v. Cheever. 35 N. II. 339; Sher- 
 idan v. Ferry Co., 214 Pa. 117. 63 Atl. 418; 
 Sanborn v. Kittredge, 20 Vt. 632, 50 Am. Dec. 
 58; and will afterwards proceed to grant 
 ' full relief in many cases; 6 Yes. 136; Rath- 
 bone v. Warren, 10 Johns. (X. Y.) 587; Fowle 
 v. Lawrason, 5 ret. (U. S.) 495, 8 L. Ed. 204. 
 But "to say that whenever there is a right 
 of discovery there must he an account al- 
 lowed is rather reversing the thing. Discov- 
 ery, on the contrary, is incident to the order 
 to account. The two things are 
 2 H. L. Cas. 28. 
 
 The remedy of part owners of a ship for 
 adjustments of accounts between themselves 
 is in equity; Milburn v. Guyther, 8 Gill (Md.) 
 92, 50 Am. Dec. 6S1 ; State v. Watts. 7 La. 
 440, 26 Am. Dec. 507 ; and so it is when 
 business is carried on upon joint account, 
 whether as partners or not; Clarke v. Pierce, 
 52 Mich. 157, 17 X. W. 7S0; Coward v. 
 Clanton, 122 Cal. 451, 55 Tac. 147. 
 
 Equitable jurisdiction over accounts ap- 
 plies to the appropriation of pavmet 
 story, Bq. Jur. (8th Ed.) 8 459; agency; Hen- 
 derson v. McClure, 2 McCord, Eq. (S. O.) 
 469; Including factors, bailiffs, consignees, 
 receivers, and stewards, where there arc 
 mutual or complicated accounts; 9 Beav. 
 284 : 2 II. L. Cas. 28 I where, however, it was 
 held that the relation of hanker and cus- 
 tomer is not such fiduciary relation as to 
 give jurisdiction; id. 35); Remhert v. 
 Brown, 17 Ala. 607; trustees' accounts-; 1
 
 ACCOUNT 
 
 108 
 
 ACCOUNT 
 
 Story, Eq. Jur. § 465; 2 M. & K. 664; Scott 
 v. Gamble, 9 N. J. Eq. 218; administrators 
 and executors; Adams' Heirs v. Adams, 22 
 Vt. 50; Stong v. Wilkson, 14 Mo. 116; Flem- 
 ing v. McKesson, 56 N. C. 316; Colbert v. 
 Daniel, 32 Ala. 314; Guardians, etc.; Moore 
 v. Hood, 9 Rich. Eq. (S. C.) 311, 70 Am. Dec. 
 210; Johnson v. Miller, 33 Miss. 553; tenants 
 in common, joint tenants of real estate or 
 chattels; 4 Ves. 752; 1 Ves. & B. 114; part- 
 ners; Perkins v. Perkins 1 Ex'r, 3 Gratt. (Va.) 
 364; Carter v. Holbrook, 3 Cush. (Mass.) 
 331; Washburn v. Washburn, 23 Vt. 576; 
 Hough v. Chaffln, 4 Sneed (Tenn.) 238; 
 Long v. Ma.iestre, 1 Johns. Ch. (N. Y.) 305; 
 directors of companies, and similar officers; 
 1 Y. & C. 326; apportionment of apprentice 
 fees; 2 Bro. C. C. 78; or rents; 2 P. Wins. 
 176, 501; see 1 Story, Eq. Jur. § 4S0; con- 
 tribution to relieve teal estate; 3 Co. 12; 2 
 Bos. & P. 270; Cheesebrough v. Millard, 1 
 Johns. Ch. (N. Y.) 400, 7 Am. Dec. 494; 
 Stevens v. Cooper, 1 Johns. Ch. (N. Y.) 425, 
 7 Am. Dec. 499; Taylor v. Porter, 7 Mass. 
 355; general average; 4 Kay & J. 367; Stur- 
 gess v. Cary, 2 Curt. 59, Fed. Cas. No. 13,- 
 572; between sureties; 1 Story, Eq. Jur. § 
 492; liens; Skeel v. Spraker, 8 Paige Ch. 
 (N. Y.) 182; Patty v. Pease, 8 Paige Ch. 
 (N. Y.) 277, 35 Am. Dec. 683; rents and 
 profits between landlord and tenant; 1 Sch. 
 & L. 305; Livingston v. Livingston, 4 Johns. 
 Ch. (N. Y.) 287, 8 Am. Dec. 562; in case of 
 torts; Bacon, Abr. Accompt, B ; a levy ; 1 
 Ves. Sen. 250; 1 Eq. Cas. Abr. 285; and in 
 other cases ; McClandish v. Edloe, 3 Gratt. 
 (Va.) 330; xoaste; 1 P. Wms. 407; 6 Ves. 
 88; tithes and moduses; Com. Dig. Chancery 
 (3 C), Distress (M. 13). 
 
 But equity will not entertain a suit for 
 a ' naked account of profits and damages 
 against an infringer of a patent ; Waterman 
 v.' Mackenzie, 138 U. S. 252, 11 Sup. Ct. 334, 
 34 L. Ed. 923; Root v. Railway Co., 105 U. 
 S. 189, 26 L. Ed. 975; nor will an account 
 for infringing a trademark be ordered where 
 the infringer acted in good faith, or the 
 profits were small ; Saxlehner v. Siegel-Coop- 
 er Co., 179 U. S. 42, 21 Sup. Ct. 16, 45 L. Ed. 
 77. Neither will an account be ordered 
 merely to establish by testimony the allega- 
 tions of the bill ; Tilden v. Maslin, 5 W. Va. 
 377; nor when the accounts are all on one 
 side and no discovery is needed; Graham v. 
 Cummings, 208 Pa. 516, 57 Atl. 943. 
 
 On a bill for an account the right of the 
 defendant to affirmative relief is as broad 
 as that of complainant; Wilcoxon v. Wilcox- 
 on, 111 111. App. 90; even if the answer con- 
 tains no demand for it; Consolidated Fruit 
 Jar Co. v. Wisner, 110 App. Div. 99, 97 N. 
 Y. Supp. 52, affirmed 188 N Y. 624, 81 N. E. 
 1162. 
 
 A decree for an accounting under a decree 
 is not necessarily delayed or prevented by 
 the fact that it may affect the interests of 
 
 persons not then in being, as after-born chil- 
 dren, and the latter may be bound by it; 
 as in the case of trustees of land subject to 
 a life tenancy; 2 Vern. 526; Harrison v. 
 Wallton's Ex'r, 95 Va. 721, 30 S. E. 372, 41 
 L. R. A. 703, 64 Am. St. Rep. 830; decrees 
 of probate courts construing a will ; Ladd 
 v. Weiskopf, 62 Minn. 29, 64 N. W. 90, 09 
 L. R. A. 785; or distributing a decedent's es- 
 tate; Rhodes v. Caswell, 41 App. Div. 232, 
 58 N. Y. Supp. 470. 
 
 Equity follows the analogy of the law in 
 refusing to interfere with stated accounts; 
 2 Sch. & L. 629 ; 3 Bro. C. C. 639, n. ; Lewis 
 v. Baird, 3 McLean 83, Fed. Cas. No. 8,316; 
 Robinson v. Hook, 4 Mas. 143, Fed. Cas. No. 
 11,956; Piatt v. Vattier, 9 Pet. (U. S.) 405, 
 9 L. Ed. 173. See Account Stated. 
 
 Equity does not deal with accounts upon 
 the principle of mercantile bookkeeping. It 
 requires the items of charge and discharge; 
 Langd. Eq. PI. § 75, n. Producing books of 
 account is not stating an account 
 
 The approved practice is to enter an inter- 
 locutory decree for an account, but a failure 
 to do so is not error; Hollahap v. Sowers, 
 111 111. App. 263; but see Silliman v. Smith, 
 72 App. Diy. 621, 76 N. Y. Supp. 65 ; but the 
 court has power to pass on the account with- 
 out the intervention of a master; Glover v. 
 Jones, 95 Me. 303, 49 Atl. 1104; Davis v. 
 Hofer, 38 Or. 150, 63 Pac. 56 ; Darby v. Gil- 
 ligan, 43 W. Va. 755, 28 S. E. 737. A refer- 
 ence will not be ordered to afford opportuni- 
 ty for evidence to support the bill ; Beale v. 
 Hall, 97 Va. 383, 34 S. E. 53; Ammons v. 
 Oil Co., 47 W. Va. 610, 35 S. E. 1004. 
 
 At Law. The action lay against bailiffs, 
 receivers and guardians, in socage only, at 
 the common law, and, by a subsequent ex- 
 tension of the law, between merchants ; 11 
 Co. 89; Sargent v. Parsons, 12 Mass. 149. 
 
 Privity of contract was required, and it 
 did not lie by or against executors and ad- 
 ministrators; 1 Wms. Saund. 216, n. ; until 
 statutes were passed for that purpose, the 
 last being that of 3 & 4 Anne, c. 16 ; 1 Story, 
 Eq. Jur. § 445. 
 
 In several states, the action has received 
 a liberal extension; Curtis v. Curtis, 13 Vt 
 517 ; Dennison v. Goehring, 7 Pa. 175, 47 Am. 
 Dec. 505; Barnum v. Landon, 25 Conn. 137; 
 Knowles v. Harris, 5 R. I. 402, 73 Am. Dec. 
 77. 
 
 In general it lies "in all cases where a. 
 man has received money as the agent of an- 
 other, and where relief may be had in chan- 
 cery"; Bredin v. Kingland, 4 Watts (Pa.) 
 421. It is said to be the proper remedy for 
 one partner against another; Irvine v. Han- 
 lin, 10 S. & R. (Pa.) 220; Beach v. Hotch- 
 kiss, 2 Conn. 425 ; Wiswell v. Wilkins, 4 Vt 
 137; Kelly v. Kelly, 3 Barb. (N. Y.) 419; 
 Young v. Pearson, 1 Cal. 448; for money 
 used by one partner after the dissolution of 
 the firm; Fowle v. Kirkland, 18 Pick.
 
 ACCOUNT 
 
 109 
 
 ACCOUNT 
 
 (Mass) 209; though equity seems to be 
 properly resorted to where a separate trihu- 
 nal exists; Calloway v. Tate, 1 Hen. & M. 
 (Va.) 9; Long v. Majestre, 1 Johns. Ch. (N. 
 Y.) 305. The action lies for salary of an of- 
 ficer of a corporation; Talbotton R. Co. v. 
 Gibson, 106 Ga. 229, 32 S. E. 151 ; timber 
 taken from land; Bernstein v. Smith, 10 
 Kan. 60; club dues; Elm City Club v. Bowes, 
 92 Me. 211, 42 Atl. 392; for materials fur- 
 nished and superintendence of work under 
 an agreement existing for so long as both 
 parties should see fit; Quin v. Distilling Co., 
 171 Mass. 2S3, 50 N. E. 637; commissions to 
 a real estate agent on a sale; Reynolds-Mc- 
 Ginness Co. v. Green, 78 Vt. 2S, 61 Atl. 556 ; 
 work and labor and money lent ; Miller v. 
 Armstrong, 123 la. 8G, 98 N. W. 501 ; Horn- 
 ing v. Poyer, 18 Ohio Cir. Ct. R. 732; Hart- 
 sell v. Masterson, 132 Ala. 275, 31 South. 
 616 ; use and occupation of land ; Ketcham 
 v. Barbour, 102 Ind. 576, 26 N. E. 127; the 
 price of land sold and conveyed; Curran v. 
 Curran, 40 Ind. 473; money received by an 
 attorney for his client; Bredin v. Kingland, 
 4 Watts (Pa.) 421. 
 
 In other states, reference may be made to 
 an auditor by order of the court, in the com- 
 mon forms of actions founded on contract 
 or tort, where there are complicated ac- 
 counts or counter-demands ; Pierce v. Thomp- 
 son, 6 Pick. (Mass.) 193; King v. Lacey, 8 
 Conn. 499; Brewster v. Edgerly, 13 N. H. 
 275; Farley v. Ward, 1 Tex. 646; and see 
 Cozzens v. Hodges, 1 R. I. 491. See Auditor. 
 In the action of account, an interlocutory 
 judgment of quod computet is first obtained; 
 McPherson v. McPherson, 33 N. C. 391, 53 
 Am. Dec. 416; Lee v. Abrams, 12 111. Ill, on 
 which no damages are awarded except rati- 
 one interplaoitationis; Cro. Eliz. 83; Gratz 
 v. Phillips, 5 Binn. (Pa.) 564. 
 
 The account is then referred to an auditor, 
 who now generally has authority to exam- 
 ine parties; Hoyt v. French, 24 N. II. IDS 
 (though such was not the case formerly) ; 
 before whom issue of law and fact may be 
 taken in regard to each item, which he must 
 report to the court; 2 Ves. 38S; Thompson 
 v. Arms, 5 Vt. 546; King v. Hutchins, 26 N. 
 H. 139; Crousillat v. McCall, 5 Binn. (Pa.) 
 433; on their decision the auditors make up 
 the account, report it and are discharged ; 
 id. Upon the facts reported by the auditor 
 the court decides the law of the case ; Mat- 
 thews v. Townr, 39 VL 433. Only the con- 
 troverted items need be proved in an action 
 on a verified account; Shuford v. Chinski 
 (Tex.) 26 S. W. 141. 
 
 A final judgment quod recuperet is entered 
 for the amount found by him to be due ; and 
 the auditor's account will not be set aside 
 except upon a very manifest case of error; 
 Appeal of Stehman, 5 Pa. 413 ; Tourne v. 
 Riviere, 1 La. Ann. 380. See Auditor. 
 
 In case of mutual accounts the statute of 
 
 limitations commences to run from the date 
 of the last item on either side; 2 Wood, Lim. 
 714 ; where the last item of a mutual run- 
 ning account is within six years from the 
 commencement of a suit, the statute 
 not apply; McFarland v. O'NeiL 155 Pa 
 25 Atl. 750; Chadwiefe v. Chadwiek, 115 Mo. 
 581, 22 S. W. 479; but in Vermont the debt 
 runs from the date of the last credit, and 
 not from the last debit; George v. Mach. Co., 
 65 Vt. 287, 26 Atl. 722. 
 
 If the defendant is found in surplusage, 
 that is, is creditor of the plaintiff on balanc- 
 ing t lie accounts, he cannot in this action 
 recover judgment for the balance so due. 
 He may briug an action of debt, or, by some 
 authorities, a sci. fa., against the plaintiff, 
 whereon he may have judgment and execu- 
 tion against the plaintiff. See Palm. 512; 
 1 Leon. 219; 3 Kebl. 362; 1 Rolle, Abr 
 pi. 11; Brooke, Abr. Accord, 62; 1 Rolle 87. 
 
 As the defendant could wage his law ; 2 
 Wins. Saund. 65 a; Cro. Eliz. 479; and as 
 the discovery, which is the main object 
 sought; 5 Taunt. 431; can be more readily 
 obtained and questions in dispute more read- 
 ily settled in equity, resort is generally had 
 to that jurisdiction in those states where a 
 separate tribunal exists, or under statutes 
 to the courts of law; Gay v. Rogers' Estate, 
 18 Vt. 345; Brewster v. Edgerly, 13 N. II. 
 275; King v. Lacey, 8 Conn. 499; Whitwell 
 v. Willard, I Mete. (Mass.) 21G. 
 
 The fact that one possesses an open ac- 
 count in favor of another is not presumptive 
 evidence of the holder's ownership; i 
 v. Mallett, 111 N. C. 74, 15 S. E. 936. In a 
 statement of account it is not necessary to 
 say "E. & O. E." ; that is implied; 6 El. & 
 Bl. 69. 
 
 ACCOUNT BOOK. A book kept by a 
 merchant, trader, mechanic, or other person, 
 in which are entered from time to time the 
 transactions of his trade or business. Such 
 books, when regularly kept, may be admitted 
 in evidence; Greenl. Ev. §§ 115-118; Bick- 
 nell v. Mellett, 160 Mass. 328, 35 N. E. 1130; 
 Kohler v. Lindenmeyr, 129 N. T.-498, 29 N. 
 E. 957. 
 
 See Original Entries, Book of. 
 
 ACCOUNT CURRENT. An open or run- 
 ning account between two parties. 
 
 ACCOUNT RENDER. See Account. 
 
 ACCOUNT STATED. An agreed balance 
 of accounts. An account which has been ex- 
 amined and accepted by the parties. 2 Atk. 
 251. 
 
 An account cannot become an account 
 stated with reference to a debt payable on 
 a contingency; Tuggle v. Minor, 76 Cal. 96, 
 18 Pac. 131. Although an item of an ac- 
 count may be disputed, it may become an 
 account stated as to the items admittedly 
 correct; Mulford v. Ca?sar, 53 Mo. App. 263. 
 
 In Equity. Acceptance may be inferred
 
 ACCOUNT STATED 
 
 110 
 
 ACCOUNT STATED 
 
 from circumstances, as where an account is 
 rendered to a merchant and no objection is 
 made, after sufficient time ; 1 Sim. & S. 383 ; 
 Murry v. Toland, 3 Johns. Ch. (N. Y.) 5G0; 
 Freeland v. Heron, 7 Cra. 147, 3 L. Ed. 297; 
 Pratt v. Weyman, 1 McCord Ch. (S. C.) 156; 
 Wood v. Gault, 2 Md. Ch. Dec. 433 ; Dows v. 
 Durfee, 10 Barb. (N. C) 213. Such an ac- 
 count is deemed conclusive between the par- 
 ties ; 2 Bro. C. C. 62, 310; Desha v. Smith. 
 20 Ala. 747; Consequa v. Fanning, 3 Johns. 
 Ch. (N. Y.) 5S7; Stiles v. Brown, 1 Gill. 
 (Md.) 350; Farmer v. Barnes, 56 N. C. 109; 
 to the extent agreed upon ; Troup v. Haight, 
 1 Hopk. Ch. (N. Y.) 239; unless some fraud, 
 mistake, or plain error is shown ; Barrow v. 
 Rhinelander, 1 Johns. Ch. (N. Y.) 550; Pratt 
 v. Weyman, 1 McCord Ch. (S. C.) 156; and 
 in such case, generally, the account will not 
 be opened, but liberty to surcharge or falsi- 
 fy will be given ; 9 Ves. 265 ; 1 Sch. & L. 192 ; 
 Hut' bins v. Hope, 7 Gill (Md.) 119. A con- 
 sideration and legal liability for each item, 
 aside from the stated account, is not essen- 
 tial to sustain an action for the balance; 
 Patillo v. Commission Co., 131 Fed. 6S0, 65 
 C. C. A. 50S. 
 
 At Law. An account stated is conclusive 
 as to the liability of the parties, with refer- 
 ence to the transactions included in it ; Mur- 
 ray v. Toland, 3 Johns. Ch. (N. Y.) 569; ex- 
 cept in cases of fraud or manifest error; 1 
 Esp. 159; Goodwin v. Insurance Co., 24 Conn. 
 591; Martin v. Beckwith, 4 Wis. 219; White 
 v. Walker, 5 Fla. 478. See Ogden v. Astor, 
 4 Sandf. (N. Y.) 311; Neff v. Wooding, 83 
 Va. 432, 2 S. E. 731. 
 
 Acceptance by the party to be charged 
 must be shown ; Bussey v. Gant's Adm'r, 10 
 Humphr. (Tenn.) 238; Lee v. Abrams, 12 
 111. 111. The acknowledgment that the sum 
 is due is sufficient ; 2 Term 4S0 ; though there 
 be but a single item in the account ; 13 East 
 249; 5 M. & S. 65. 
 
 The acceptance need not be in express 
 terms; Powell v. R. R., 65 Mo. 658; Volken- 
 ing v. De Graaf, 81 N. Y. 268. Acceptance 
 may be inferred from retaining the account 
 a sufficient time without making objection; 
 Freeland v. 'Heron, 7 Cra. (U. S.) 147, 3 
 L. Ed. 297; Jones v. Dunn, 3 W. & S. (Pa.) 
 109; Dows v. Durfee, 10 Barb. (N. Y.) 213; 
 Ogden v. Astor, 4 Sandf. (N. Y.) 311; Patil- 
 lo v. Commission Co., 131 Fed. 680, 65 C. C. 
 A. 508 ; and from other circumstances ; Ber- 
 ry v. Pierson, 1 Gill (Md.) 234. 
 
 If the parties had already come to a dis- 
 agreement when the account is rendered, as- 
 sent cannot be inferred from silence; Ed- 
 wards v. Hoeffinghoff, 38 Fed. 635. 
 
 A definite ascertained sum must be stated 
 to be due; Andrews v. Allen, 9 S. & R. (Pa.) 
 241. 
 
 It must be made by a competent person, 
 excluding infants and those who are of un- 
 sound mind; 1 Term 40. 
 
 Husband and wife may join and state an 
 account with a third person; 2 Term 483; 
 16 Eng. L. & Eq. 290. 
 
 An agent may bind his principal; Murray 
 v. Toland, 3 Johns. Ch. (N. Y.) 569; but he 
 must show his authority ; Thallhimer v. 
 Brinckerhoff, 4 Wend. (N. Y.) 394, 21 Am. 
 Dec. 155; Harvey v. Ry. Co., 13 Hun (N. Y.) 
 392. Partners may state accounts; and an 
 action lies for the party entitled to the bal- 
 ance; Ozeas v. Johnson, 4 Dall. (Pa.) 434, 
 1 L. Ed. 897; Lamalere v. Caze, 1 Wash. 
 C. C. 435, Fed. Cas. No. 8,003; Kidder v. 
 Rixford, 16 Vt. 169, 42 Am. Dec. 504. 
 
 The acceptance of the account is an ac- 
 knowledgment of a debt due for the balance, 
 and will support assumpsit. It is not, there- 
 fore, necessary to prove the items, but only 
 to prove an existing debt or demand, and 
 the stating of the account; Ware v. Dudley, 
 16 Ala. 742; Auzerais v. Naglee, 74 Cal. 60, 
 15 Pac. 371. 
 
 Facts known to a party when he settles 
 an account stated cannot be used later to 
 impeach it; Marmon v. Waller, 53 Mo. App. 
 610; and it should not be set aside except 
 for clear showing of fraud or mistake ; 
 Greenhow v. Edler, 51 Fed. 117; Marmon v. 
 Waller, 53 Mo. App. 610. 
 
 On an account stated and a balance due, 
 a promise is implied to pay this balance on 
 demand ; a subsequent promise differing 
 therefrom is nudum pactum. Odger, C. L. 
 683. 
 
 ACCOUNTANT. One who is versed in 
 accounts. A person or officer appointed to 
 keep the accounts of a public company. 
 
 He who renders to another or to a court 
 a just and detailed statement of the prop- 
 erty which he holds as trustee, executor, 
 administrator, or guardian. See 16 Viner, 
 Abr. 155. 
 
 ACCOUNTANT GENERAL. An officer of 
 the English Court of Chancery, by whom the 
 moneys paid into court are received, depos- 
 ited in bank, and disbursed. The office ap- 
 pears to have been established by an order 
 of May 26, 1725, and 12 Geo. I. c. 32, before 
 which time the effects of the suitors were 
 locked up in the vaults of the Bank of Eng- 
 land, under the care of the masters and two 
 of the six clerks ; 1 Smith, Ch. Pr. 22. 
 
 ACCOUNTANTS, CHARTERED. Persons 
 skilled in the keeping and examination of 
 accounts, who are employed for the purpose 
 of examining and certifying to the correct- 
 ness of accounts of corporations and others. 
 The business is usually carried on by corpo- 
 rations. See Auditob. 
 
 ACC0UPLE. To unite; to marry. 
 
 ACCREDIT. In International Law. To 
 acknowledge; send (an envoy) with creden- 
 tials. 
 
 Used of the act by which a diplomatic agent is 
 acknowledged by the government to which he is
 
 ACCREDIT 
 
 111 
 
 ACCRETION 
 
 Bent. This at once makes his public character 
 known and becomes his protection. It Is used also 
 of the act by which his sovereign commissions him. 
 This latter use is now the accepted one. 
 
 ACCRESCERE (Eat). To grow to; to be 
 united with ; to increase. 
 
 The term is used in speaking of Islands which are 
 formed in rivers by deposit; Calvinus, Lex.; 3 
 Kent 428. 
 
 It is used in a related sense in the com- 
 mon-law phrase jus acorescendi, the right of 
 survivorship; 1 Washb. R. P. 42G. 
 
 In Pleading. To commence; to arise; to 
 accrue. Quod actio non accrevit infra sex 
 annos, that the action did not accrue within 
 six years ; 3 Chit. PL 914. 
 
 ACCRETION (Lat. accrescere, to grow to). 
 The increase of real estate by the addition 
 of portions of soil, by gradual deposition 
 through the operation of natural causes, to 
 that already in possession of the owner. 3 
 Washb. R. P. (oth ed.) 50. 
 
 The term alluvion is applied to the deposit itself, 
 while accretion rather denotes the act. 
 
 If an island in a non-navigable stream re- 
 sults from accretion, it belongs to the owner 
 of the bank on the same side of the filum 
 aquae; 3 Washb. R. P. 60; 2 Bla. Com. 
 261, n.; 3 Kent 428; Hargrave, Law Tracts 
 5; Hale, de Jur. Mar. 14; 3 Barn. & C. 91, 
 107; Ex parte Jennings, 6 Cow. (N. Y.) 537, 
 16 Am. Dec. 447; Ingraham v. Wilkinson, 4 
 Pick. (Mass.) 268, 16 Am. Dec. 342; Wood- 
 bury v. Short, 17 Vt 387, 44 Am. Dec. 344. 
 "It is generally conceded that the riparian 
 title attaches to subsequent accretions to the 
 land effected by the gradual and impercepti- 
 ble operation of natural causes. But wheth- 
 er it attaches to land reclaimed by artificial 
 means from the bed of the river, or to sud- 
 den accretions produced by unusual floods, is 
 a question which each state decides for it- 
 self;" Barney v. Keokuk, 94 U. S. 337, 24 
 L. Ed. 224; Missouri v. Nebraska, 196 U. S. 
 23, 25 Sup. Ct. 155, 49 L. Ed. 372 ; Goddard 
 v. Winehell, 86 la. 71, 52 N. W. 1124, 17 L. 
 R. A. 788, 41 Am. St. Rep. 481. As a general 
 rule, such accretions do not belong to the 
 riparian owner; City of Victoria v. Schott, 
 9 Tex. Civ. App. 332, 29 S. W. 681; Cox v. 
 Arnold, 129 Mo. 337, 31 S. W. 592, 50 Am. 
 St. Rep. 450; Cooley v. Golden, 117 Mo. 33, 
 23 S. W. 100, 21 L. R. A. 300 ; but if, after an 
 avulsion, an accretion forms within the orig- 
 inal land line, it belongs to the riparian own- 
 er, though separated from the main land 
 by a slough; Mintou v. Steele, 125 Mo. 181, 
 28 S. W. 746. Land remade by accretion 
 after it has been washed away 1 olougs to the 
 original proprietor; Ocean City Ass'n v. 
 Shriver, 64 N. J. L. 550, 40 Atl. 690, 51 L. 
 R. A. 425, n., which see as to the right of 
 the owner to follow accretions across a di- 
 vision line previously submerged by the ac- 
 tion of the water. 
 
 However accretions may be commenced or 
 
 continued, the right of one who is the owner | Barb. (N. Y.) 295. 
 
 of uplands to follow and appropriate them 
 ceases when the formation passes laterally 
 the land of his conterminous neiudd'ur: Mul- 
 ry v. Norton, 100 N. Y. 425, 3 N. E. 581, 03 
 Am. Rep. 206, where a bar sepa 
 the mainland by a lagoon was claimed as an 
 accretion by the owner of the portion of the 
 bar where the formation began. This bar 
 merely replaced a formation which had 1 ■ 
 in part washed away, and the court said 
 the owner of the nucleus of the Ijar could 
 not, even if the process of its extension \ 
 effected by accretion, claim beyond the | 
 where such accretions began to be adjaci 
 to the properly of adjoining owners. See 51 
 L. R. A. 125, n. 
 
 An accretion formed on the other side of 
 a public stnet which bounds the property of 
 an individual belongs to the street, if the 
 fee of that is in the public; Ellinger v. R. 
 Co., 112 Mo. 525, 20 S. W. S00; City of St 
 Louis v. R. Co., 114 Mo. 13, 21 S. W. 202. A 
 reliction formed by the gradual drying up of 
 a lake belongs to the riparian owners ; Poyn- 
 ter v. Chipman, 8 L'tah, 442, 32 Pac. 690; 
 Olson v. Huntamer, 6 S. D. 364, 61 N." W. 
 479; but not one formed by artificial drain- 
 age: Noyes v. Collins, 92 la. 566, 61 N. W. 
 250, 26 L. R. A. 609, 54 Am. St. Rep. 571. 
 
 See Avulsion; Aixrviox; Riparian Pro- 
 prietor; Island; Reliction. 
 
 ACCROACH. To attempt to exercise roy- 
 al power. 4 Bla. Com. 76. 
 
 A knight who forcibly assaulted and detained one 
 of the king's subjects till he paid him a ?um of 
 money was held to have committed treason on the 
 ground of accroachment; 1 Hale, PI. Cr. 80. 
 
 In French Law. To delay. Whishaw. 
 
 ACCRUAL, CLAUSE OF. A clause in a 
 deed of settlement or a will providing that 
 the share of one dying shall vest in the sur- 
 vivor or survivors. 
 
 ACCRUE. To grow to; to be added to; 
 to become a present right or demand, as the 
 interest accrues on the principal. Accruing 
 costs are those which become due and are 
 created after judgment; as the costs of an 
 execution. See Johnson v. Ins. Co.. !>l [1195, 
 33 Am. Rep. 47: Strasser v. Staats, ."d llun 
 143, 13 N. Y. Supp. 167. 
 
 To rise, -to happen, to come to pass; as 
 the statute of limitation does not commence 
 running until the cause of action has ac- 
 crual; Seheerer v. Stanley, 2 Rawle 
 277; Braddee v. Wiley, 10 Watts (Pa.) 
 Bacon, Abr. Limitation of Actii 
 Emerson v. The Shawano City, 10 Wis 
 A cause of action acrriK's when suit may he 
 commenced for a breach of contract ; Amy v. 
 Dubuque, 98 U. S. 470, 25 L. Ed. 228. It is 
 distinguished from sustain; Adams v. Brown. 
 4 Litt. (Ky.) 7; and from owing; 6 C. 1".. N. 
 s. 429; cross v. Partenheimer, 159 Pa. 556, 
 28 Atl. 370; but see Cutcliff v. McAnally, 88 
 Ala. 507, 7 South. 331; Fay v. Holloran, 3-j
 
 ACCUMULATION, TRUST FOR 
 
 1VA 
 
 ACKNOWLEDGMENT 
 
 ACCUMULATION, TRUST FOR. See Peb- 
 
 PETUiTY. 
 
 ACCUMULATIVE LEGACY. See Legacy. 
 
 ACCUSATION. A charge made to a com- 
 petent oil' i ■ si one who has committed 
 a erii: < he may be brought to justice 
 and punishment 
 
 A n- ise may In some case* be consid- 
 
 ered n : or, or misprision (which see) ; 1 
 
 Brown, Civ. Law 847; 2 id. 889; Inst lib. i, tit. IS. 
 
 It is a rule that no man Is bound to accuse him- 
 self or testify against himself In a criminal case; 
 7 Q. B. 116. A man Is competent, though not com- 
 pellable, to prove his own crime : 14 Mees. & W. 
 25G. See Evujence ; Interest; Witness. 
 
 ACCUSE. To charge or impute the com- 
 ma of crime or immoral or disgraceful 
 conduct or official delinquency. It does not 
 sarily import the charge of a crime by 
 judicial procedure; State v. South, 5 Rich. 
 (S. C.) 489, 493; Com. v. O'Brien. 12 Cush. 
 .) 84; Robbins v. Smith, 47 Conn. 182; 
 1 C. & P. 479. See People v. Braman, 30 
 Mich. 4G0, where the court was divided as 
 to the meaning of the term, Cooley, C. J., and 
 Ohristiancy, J., holding that it meant any 
 public accusation of crime as well as a for- 
 mal complaint, and Graves and Campbell, 
 JJ., contra; and Com. v. Cawood, 2 Va. Cas. 
 527 where, Barbour, J., dissenting, it was 
 held that one is not accused until indicted. 
 
 ACCUSED. One who is charged with a 
 crime or misdemeanor. See People v. Bra- 
 man, 30 Mich. 468. The term cannot be said 
 to apply to a defendant in a civil action ; 
 Castle v. Houston, 19 Kan. 417, 37 Am. Rep. 
 127; and see Mosby v. Ins. Co., 31 Gratt. 
 (Va.) C29. 
 
 ACCUSER. One who makes an accusa- 
 tion. 
 
 ACCUSTOMED. Habitual; often used, 
 synonymous with usual; Farwell v. Smith, 
 N. J. L. 133. 
 
 ACE QUIA. A canal for irrigation; a pub- 
 lie ditch. 
 
 Where irrigation is necessary, as in New 
 -Mexico, there is much legislation respecting 
 public ditches and and those used 
 
 for the purpose of irrigation are declared to 
 be "public ditches or acsquias" ; Comp. L. 
 N. Mex. tit 1, ch. 1, § 6. 
 
 ACHAT, also ACHATE, ACHATA, ACH- 
 ET. In French Law. A purchase. 
 
 It Is used in some of our law-books, as well as 
 achctor, a purchaser, which in some ancient stat- 
 utes means purveyor. Stat. 36 Edw.,111. ; Merlin, 
 Repert. 
 
 ACHERSET. An ancient English measure 
 of grain, supposed to be the same with our 
 
 quarter, or eight bushels. 
 
 ACKNOWLEDGMENT. The act of one 
 who has executed a deed, in going before 
 some competent officer or court and declar- 
 ing it to be his act or deed. 
 
 The acknowledgment is certified by the officer or 
 court; and the term acknowledgment Is sometimes 
 used to designate the certificate. 
 
 The function of an acknowledgment Is two-fold: 
 to authorize the deed to be given in evidence with- 
 out further proof of its execution, and to entitle it 
 to be recorded. The same purposes may be accom- 
 plished by a subscribing witness going before the 
 officer or court and making oath to the fact of the 
 execution, which is certified in the same manner ; 
 but in some states this is only permitted in case of 
 the death, absence, or refusal of the grantor. In 
 of the states a deed Is void except as between 
 the parties and their privies, unless acknowledged 
 or proved. 
 
 Nature of. In some states the act is held 
 to be a judicial or quasi-judicial one; Was- 
 son v. Connor, 54 Miss. 351; Harmon v. 
 Magee, 57 Miss. 410 ; Glider v. Mortgage Co., 
 99 Ala. 2S1, 12 South. 775, 42 Am. St. Rep. 
 58 (changing the rule of earlier cases); 
 Thompson v. Mortgage Security Co., 110 Ala. 
 400, IS South. 315, 55 Am. St. Rep. 29 ; Heil- 
 man v. Kroh, 155 Pa. 1, 25 Atl. 751 ; Murrell 
 v. Diggs, 84 Va. 900, 6 S. E. 461, 10 Am. St 
 Rep. 893; while in others it is held to be a 
 ministerial act; Lynch v. Livingston, 6 N. 
 Y. 422 ; Loree v. Abner, 57 Fed. 159, 6 C. C. 
 A. 302; Ford v. Osborne, 45 Ohio St 1, 12 
 N. E. 526 ; Learned v. Riley, 14 Allen (Mass.) 
 109. 
 
 Who may take. An officer related to the 
 parties; Lynch v. Livingston, 6 N. Y. 422; 
 Remington Paper Co. v. O'Dougherty, SI N. 
 Y. 474. The presumption is that the officer 
 took it within his jurisdiction; Morrison v. 
 White, 16 La. Ann. 100; Rackleff v. Norton, 
 19 Me. 274; Bradley v. West, 60 Mo. 33; 
 and that it was duly executed; Albany 
 County Savings Bank v. McCarty, 71 Hun 
 227, 24 N. Y. Supp. 991. 
 
 In some states a notary cannot take ac- 
 knowledgment in another county than the 
 one within which he was appointed and re- 
 sides ; Utica & Black River R. Co. v. Stew- 
 art, 33 How. Pr. (N. Y.) 312; Rehkoph v. 
 Miller, 59 111. App. 662 ; nor the attorney of 
 record; Gilmore v. Hempstead, 4 How. Pr. 
 (N. Y.) 153 ; Thurman v. Cameron, 24 Wend. 
 (N. Y.) 01 ; Hucrhes v. Wilkinson's Lessee, 37 
 182; Hedger v. Ward, 15 B. Mon. (Ky.) 
 106 ; nor if his term has expired ; Gilbraith 
 v. Gallivan, 78 Mo. 452; Carlisle v. Carlisle, 
 78 Ala. 542. In Pennsylvania, by statute, a 
 notary may act anywhere within the state; 
 Acts, 1S93, p. 323. 
 
 Taking an acknowledgment is not public 
 business such as may not be transacted on a 
 legal holiday; Slater v. Schack, 41 Minn. 
 269, 43 N. W. 7. 
 
 One cannot take an acknowledgment of 
 a deed in which he has any interest: Bea- 
 man v. Whitney, 20 Me. 413; Groesbeck v. 
 Seeley, 13 Mich. 320; Wasson v. Connor, 54 
 Miss. 351 ; Brown v. Moore, 38 Tex. 645 ; 
 Withers v. Baird, 7 Watts (Pa.) 227, 32 Am. 
 Dec. 754. Contra, Davis v. Beazley, 75 Va. 
 491; Dail v. Moore, 51 Mo. 589; West v. 
 Krebaum, 8S 111. 263 ; Green v. Abraham, 43 
 Ark. 420. 
 
 Sufficiency of. Certificate need only sub- 
 stantially comply with the statute. The fact
 
 ACKNOWLEDGMENT 
 
 113 
 
 ACKNOWLEDGMENT 
 
 of acknowledgment and the luenrity of the 
 parties are the essential parts, and must be 
 stated; Bryarj v. Ramirez, 8 CaL 461, 68 
 Am. Dec. 340; Morse v. Clayton, 13 Smedes 
 & M. (Miss.) 373 ; Alexander v Merry, 9 Mo. 
 514. 
 
 The general rule applied in cases of gram- 
 matical or clerical 'errors is that the courts 
 will disregard obvious mistakes, and read 
 into the acknowledgment the proper word, if 
 such word can be easily ascertained ; Merritt 
 v. Yates, 71 111. 630, 23 Am. Rep. 128; Cairo 
 & St. L. R. Co. v. Parrott, 02 111. 194; Durst 
 v. Daugherty, 81 Tex. 650, 17 8. W. 38; Mc- 
 Oardla v. Billings, 10 N. D. 373, 87 N. W. 
 88 Am. St. Rep. 720; Frostburg Mut. 
 Bldg. Ass'n v. Brace, 51 Md. 508; Hughes v. 
 Wright, 100 Tex. 511, 101 S. W. 789, 11 L. 
 R. A. (N. S.) 643, 123 Am. St. Rep. 827; but 
 it is held that important words omitted ean- 
 imi be supplied by intendment; Jackway v. 
 Gault, 20 Ark. 190, 73 Am. Dec. 494; Hayden 
 v. Westcott, 11 Conn. 120; Newman v. Sam- 
 uels, 17 la. 528; Wetmore v. Laird, 5 Biss. 
 160, Fed. Cas. No. 17,467. 
 
 In the following cases it was held that 
 the statute must be strictly complied with ; 
 Buell v. Irwin, 24 Mich. 145 ; Rogers v. 
 Adams, 66 Ala. 600; Myers v. Boyd, 96 Pa. 
 427; Wetmore v. Laird, 5 Biss. 160, Fed. 
 Cas. No. 17,467; Tully v. Davis, 30 111. 103, 
 S3 Am. Dec. 179; Ridgely v. Howard, 3 H. 
 & McK. (Md.) 321. Where a notary takes 
 the acknowledgment and attaches his seal, 
 but fails to sign his name, it is not suffi- 
 cient; Clark v. Wilson, 127 111. 429, 19 N. E. 
 800. 11 Am. St. Rep. ! 13. 
 
 Effect of. Only purchasers for value can 
 'ake advantage of defects ; Mastin v. Halley, 
 61 Mo. 196. 
 
 An acknowledged deed is evidence of seizin 
 in the grantee, and authorizes recording it; 
 Kellogg v. Loomis, 16 Gray (Mass.) 48. 
 
 An unacknowledged deed is good between 
 the parties and subsequent purchasers with 
 actual notice; Gray v. Finch. 8 Kan. 112; 
 Kellogg v. Loomis, 16 Gray (Mass.) 48; Ste- 
 vens v. Hampton, 40 Mo. 404 ; P.ishop v. 
 Schneider, 40 Mo. 472, 2 Am. Rep. 533; Ryan 
 v. Carr. 40 Mo. 483. 
 
 The certificate will prevail over the un- 
 supported denial of the grantor; Lickmon 
 v. Harding, 65 111. 505. 
 
 Identification of Grantor. An introduction 
 by a common friend is sufficient to Justify 
 officer in making certificate; Carpenter v. 
 Dexter, 8 Wall. (U. S.) 513, 19 L. F«l. 426. 
 Contra, Jones v. Bach, 48 Barb. (N. Y.) 568 T 
 NIppel v. Hammond, 4 Col. 211. See Ac- 
 quainted. 
 
 A notary imposed upon by a personation 
 is liable only for clear negligence. It is a 
 legal presumption that he acted on reason- 
 able information, and his absence of mem- 
 ory as to details of what occurred does not 
 destroy that presumption; Com. v. Haines, 
 97 Pa. 22S. 
 
 Bouv.— 8 
 
 Tbe certificate is not invalidated by wan* 
 of recollection of the officer; looker v. 
 Sloan, 30 N. J. Eq. 394 ; nor by □ 
 or omission of, the date; Huxley v. Har 
 62 Mo. 516; Kelly v. I k, 45 Md 
 
 WeWb v. Buff, 61 Tex. 077; Yorty v. P 
 62 Wis. 154, 22 N. W. 137. 
 
 It is always permissible to show tha: 
 party never appeared before the officer 
 acknowledged the deed; Donahue v. Mills, 
 •11 Ark. 421; Pickens v. Knisely, 29 W 
 1, 11 s. E. 932, 6 Am 81 22; but if 
 
 he appeared, tie In the certificate of 
 
 acknowledgment can only be impeached for 
 fraud or imposition, with knowledge brought 
 home to the grantee; Bouvier-Ia 
 Land Co. v. Sypher, 180 Fed. I 
 
 Correction. Where a notary fails to set 
 forth the necessary facts, he may correct his 
 certificate, and may be compelled by manda- 
 mus, but equity has no jurisdiction to 
 rectit; Wannall v. Kern, 51 Mo. 150; Hutch- 
 inson v. AinsWorth, 63 Cal. 286; Merritt v. 
 Yates, 71 111. 636, 23 Am. Rep. 128. 
 
 See paper by Judge Cooley, 4 Amer. Bar 
 Assoc. 1SS1. 
 
 ACKNOWLEDGMENT MONEY. A sum 
 paid by tenants of copyhold in some parts of 
 England, as a recognition of their sup 
 lords. Cowell ; Blount. Called a fine by 
 Blackstone ; 2 Bla. Com. 9S. 
 
 ACOLYTE. An inferior church servant, 
 who, next under the sub-deacon, follows and 
 waits upon the pi ad per- 
 
 forms the offices of lighting the candles, car- 
 rying the bread and wine, and paying other 
 servile attendance. Spelman ; Cowell. 
 
 ACQUAINTED. Having personal knowl- 
 edge of. Kelly v. Calhoun, 9". D. S. 710. 24 
 L. Ed. 544. Acquaintance expresses less than 
 familiarity; In re Carpenter's Estab 
 Cal. 406, 29 Pac. 1101. It is •familiar knowl- 
 edge" ; Wyllis v. Haun, 47 la. 614; Chauvln 
 v. Wagner, 18 Mo. 531. To be "personally 
 acquainted with," and to "know person 
 are equivalent terms: Kelly v. Calhoun, 95 
 U. S. 710, 24 L. Ed. 544. When used with 
 reference to a paper to which a certificate or 
 affidavit Is attached, it indicates a su! 
 tial knowledge of the subject-matter thereof. 
 Bohan v. Casey, 5 Mo. App. 101; U. S. v. 
 Jones, 14 Blatchf. 90, Fed. ('as. No. 15,491. 
 
 ACQUEREUR. In French and Canadian 
 Law. One who acquires title, particularly to 
 immovable property, by pure! 
 
 ACQUEST. An estate acquired by pur- 
 chase. 1 Reeves, Hist. ling. Law 
 
 ACQUETS. In Civil Law. Property 
 which has been acquired by purchase, sift, or 
 otherwise than by succession. Immovable 
 property which has been acquired otherwise 
 than by succession. Merlin, Repert 
 
 The profits of all the effects of which the 
 husband has the administration and enjoy- 
 ment, either of right or in fact, of the prod-
 
 ACQUETS 
 
 114 
 
 ACQUIESCENCE 
 
 uce of the joint industry of both husband 
 and wife, and of the estates which they may 
 acquire during the marriage, either by dona- 
 tions made jointly to them both, or by pur- 
 chase, or in any oilier similar way, even al- 
 though the purchase he only in the name of 
 one of the two, and not of both. 
 
 This is the signification attached to the 
 word in Louisiana; La. Civ. Code 2371. The 
 rule applies to all marriages contracted in 
 that state, or out of it, when the parties aft- 
 erward go there to live, as tx^ acquets after- 
 ward made there. The acquets are divided 
 into two equal portions between the husband 
 and wife, or between their heirs at the dis- 
 solution of their marriage. 
 
 The parties may, however, lawfully stipu- 
 late there shall be no community of profits 
 or gains; but have no right to agree that 
 they shall be governed by the laws of anoth- 
 er country ; Bourcier v. Lanusse, 3 Mart. 
 O. S. (La.) 581; Saul v. His Creditors, 5 
 Mart. N. S. (La.) 571, 16 Am. Dec. 212. See 
 2 Kent 153, n. See Community; Conquets. 
 
 As to the sense in which it is used in Can- 
 ada, see 2 Lo'w. Can. 175. 
 
 ACQUIESCENCE. A silent appearance of 
 consent. Worcester, Diet. 
 
 Failure to make any objections. 2 Phil. 
 117; S Ch. Div. 2SC; Scott v. Jackson, 89 
 Cal. 258, 26 Pac. 89S. Submission to an act 
 of which one had knowledge. See Pence v. 
 Langdon, 99 U. S. 578, 25 L. Ed. 420. It 
 imports full knowledge; 3 De G. F. & J. 58. 
 Tacit assent to an ultra vires act, after 
 knowledge of it, causing innocent third per- 
 sons to assume positions of which they can- 
 not be deprived without loss. Rabe -v. Dun- 
 lap, 51 N. J. Eq. 40, 25 Atl. 959; Kent v. 
 Mining Co., 78 N. Y. 159. 
 
 It is to be distinguished from avowed consent, on 
 the one hand, and from open discontent or opposi- 
 tion, on the other. It amounts to a consent which 
 is impliedly given by one or both parties to a prop- 
 osition, a clause, a condition, a judgment, or to any 
 ,act whatever. 
 
 It implies active, as distinguished from 
 laches, which implies passive assent; Lux 
 v. Haggin, G9 Cal. 255, 4 Pac. 919, 10 Pac. 
 G74. 
 
 When a party is bound to elect between a 
 paramount right and a testamentary dispo- 
 sition, his acquiescence in a state of things 
 which indicates an election, when he was 
 aware of his rights, will be prima facie "evi- 
 dence of such election. See 2 Pop. Leg. 439 ; 
 1 Ves. 335 ; 12 id. 136 ; 3 P. Wms. 315. The 
 acts of acquiescence which constitute an im- 
 plied election must be decided rather by the 
 circumstances of each case, than by any gen- 
 eral principle; 1 Swans. 382, note, and the 
 numerous cases there cited. 
 
 Acquiescence in the acts of an agent, or 
 one who has assumed that character, will 
 be equivalent to an express authority ; 2 
 Kent 478; Story, Eq. Jur. § 255; U. S. v. 
 Snyder, 4 Wash. C. C. 559, Fed. Cas. No. 
 
 i 16,351; Richmond Manuf'g Co. v. Starks, 4 
 Mas. 296, Fed. Cas. No. 11,802; Bell v. Cun- 
 ningham, 3 Pet. (U. S.) 69, 81, 7 L. Ed. 606; 
 Erick v. Johnson, 6 Mass. 193; Towle v. 
 
 I Stevenson, 1 Johns. Cas. (N. Y.) 110; Vianna 
 V. Barclay, 3 Cow. (N. Y.) 281. 
 
 Mere delay in repudiating an agent's un- 
 authorized contract will not ratify it, but is 
 evidence from which the jury may so infer ; 
 Meyer v. Smith, 3 Tex. Civ. App. 37, 21 S. 
 W. 995 ; hut the disapproval must be within 
 a reasonable time ; Johnson v. Carrere, 45 
 La. Ann. 847, 13 South. 195 ; and if payment 
 has been made to an agent after his author- 
 ity has been revoked, the presumption is that 
 he has accounted to the principal when there 
 is long-continued silence on the latter's part; 
 Long v. Thayer, 150 U. S. 520, 14 Sup. Ct. 
 189, 37 L. Ed. 1167. 
 See Agency; Estoppel. 
 
 ACQUIETANDIS PLEGIIS. A writ of 
 justices, formerly lying for the surety 
 against a creditor who refuses to acquit him 
 after the debt has been satisfied. Reg. of 
 Writs 158; Cow ell; Blount. 
 
 ACQUIRE (Lat. ad, for, and qucerere, to 
 seek). To make property one's own. To 
 gain permanently. 
 
 It is regularly applied to a permanent ac- 
 quisition. A man is said to obtain or pro- 
 cure a mere temporary acquisition. It has 
 been held to include a taking by devise ; 
 Santa Clara Female Academy v. Sullivan, 
 116 111. 375, 6 N. E. 183, 56 Am. Rep. 776. 
 
 ACQUISITION. The act by which a per- 
 son procures the property in a thing. 
 
 The thing the property in which is se- 
 cured. 
 
 Original acquisition is that by which a 
 man secures a property in a thing which is 
 not at the time he acquires it, and in its 
 then existing condition, the property of any 
 other individual. It may result from oc- 
 cupancy; 2 Kent 289; accession; 2 Kent 
 293; intellectual labor — namely, for inven- 
 tions, which are secured by patent rights ; 
 and for the authorship of books, maps, and 
 charts, which is protected by copyrights; 1 
 Bouv. Inst. 508, n. 
 
 Derivative acquisitions are those which 
 are procured from others, either by act of 
 law or by act of the parties. Goods and 
 chattels may change owners by act of law 
 in the cases of forfeiture, succession, mar- 
 riage, judgment, insolvency, and intestacy ; 
 or by act of the parties, as by gift or sale. 
 
 An acquisition may result from the act of 
 the party himself, or those who are in his 
 power acting for him, as his children while 
 minors ; Gale v. Parrot, 1 N. H. 28. See Dig. 
 41. 1. 53 ; Inst. 2. 9. 3. 
 
 ACQUITMENT. See Absolution. 
 
 ACQUITTAL. A release or discharge 
 from an obligation or engagement. 
 
 According to Lord Coke, there are three kinds of 
 acquittal, namely: by deed, when the party re-
 
 ACQUITTAL 
 
 115 
 
 ACRE 
 
 leases the obligation; by prescription; by tenure; 
 Co. Lltt 100 o. 
 
 The absolution of a party charged with a 
 crime or misdemeanor. 
 
 The absolution of a party accused on a 
 trial before a traverse jury. Shackleford v. 
 Smith, l Nott & McC. (S. C.) 36; Teague v. 
 Wllks, 3 McCord (S. C.) 461. Though fre- 
 quently expressed as "by .the jury," it is in 
 fact by the judgment of the court ; 7 M. & G. 
 481. 
 
 Acquittals in fact are those which take 
 place when the jury, upon trial, finds a ver- 
 dict of not guilty. 
 
 Acquittals in law are those which take 
 place by mere operation of law ; as where 
 a man has been charged merely as an ac- 
 cessary, and the principal has been acquit- 
 ted. Coke, 2 Inst. 364. 
 
 An acquittal is a bar to any future prose- 
 cution for the offence alleged in the first in- 
 dictment. 
 
 If accused Is placed upon trial under a 
 valid indictment before a legal jury, and 
 the latter is discharged by the court without 
 good cause and without defendant's consent, 
 it is equivalent to an acquittal ; State v. 
 Walker, 26 Ind. 346; Mount v. State, 14 
 Ohio 295, 45 Am. Dec. 542 ; Klock v. People, 
 2 Parker Cr. R. (N. Y.) 676. There may be 
 an acquittal by reason of a discharge with- 
 out a trial on the merits; Junction City v. 
 Keeffe, 40 Kan. 275, 19 Pac. 735. Acquittal 
 discharges from guilt, pardon only from pun- 
 ishment; Younger v. State, 2 W. Va. 579, 9S 
 Am. Dec. 791. 
 
 When a prisoner has been acquitted, he 
 becomes competent to testify either for the 
 government or for his former co-defendants; 
 7 Cox, Cr. Cas. 341. And it is clear, that 
 where a married defendant is entirely re- 
 moved from the record by a verdict pro- 
 nounced in his favor, his wife may testify 
 either for or against any other persons who 
 may be parties to the record; 12 M. & W. 
 49; 8 Carr. & P. 2S4. See Jeopardy; Autre- 
 fois Acquit ; Autrefois Convict. 
 
 ACQUITTANCE. An agreement in writ- 
 ing to discharge a party from an engagement 
 to pay a sum of money. It is evidence of 
 payment, and differs from a release hi this, 
 that the latter must be under seal, while an 
 acquittance need not be under seal. Pothier, 
 Oblig. n. 781. See 3 Salk. 29S; Co. Litt. 
 212 a, 273 a; Milliken v. Brown, 1 Rawle 
 (Pa.) 391. 
 ACQUITTED. See Acquittal. 
 
 ACRE. A quantity of land containing one 
 hundred and sixty square rods of land, in 
 whatever shape. Cro.. Eliz. 476, 665; 6 Co. 
 67; Co. Litt. 5 6. The word formerly signi- 
 fied an open field; whence acre-fight, a con- 
 test in an open field. Jacob, Diet 
 
 The measure seems to have been variable 
 in amount in its earliest use, but was fixed 
 by statute at a remote period. As originally 
 
 used, it was applicable especially to meadow- 
 lands; Cowell. Originally a strip in the 
 fields that was ploughed in the 
 Maitland, Dom I Beyond 
 
 ACRE RIGHT. "The share of a citifeen of 
 a New England town in the common : 
 The value of the acre right was 
 quantity in each town, but varied in d 
 ent towns. A 10-a< re lot or right in B 
 tain town was equivalent to 113 
 upland and 12 acres of meadow, and B 
 tain exact proportion was main: 
 tween the acre right and salable lands." Mes- 
 
 etc, of the Presidents, Richar 
 X, 2 
 
 ACROSS. From side to side. Tram 
 to the length of. Hannibal & St. .7. R. Co. 
 v. Packet Co., 125 U. S. 260, 8 Sun. CI 
 31 L. Ed. 733 ; but 
 
 Branch Imp. Co., 65 Pa. 242. It may 
 over; Brown v. Meady, in Me. 391, 25 Am. 
 Dec. 248. See Comstock v. Van 
 Pick. (Mass.) 163, where a granl of a right 
 of way across a lot of land was held not to 
 mean a right to enter at one side, go partly 
 across and come out at a place on the same 
 side. 
 
 ACT (Lat. agcre, to do; actus, done). 
 Something done or established. 
 
 In its general legal sense, the word may denote 
 something done ' by an individual, as a private 
 citizen, or as an officer; or by a body of men, as a 
 legislature, a council, or a court of justice; includ- 
 ing not merely physical acts, but also d> 
 edicts, laws, judgments, resolves, awards, and de- 
 terminations. Some general laws made by the Con- 
 gress of the United States are styled joint i 
 tions, and these have the same force and el. 
 those styled acts. 
 
 An instrument in writing to verify facts. 
 Webster, Diet. 
 
 It is used in this sense of the published acts ot 
 assembly, congress, etc. In a sense approaching 
 this, it has been held In trials for treason that 
 letters and other written documents were acts; 1 
 Fost. Cr. Cas. 198; 2 Stark. 116. 
 
 In Civil Law. A writing which states in a 
 legal form that a thing has been done. 
 or agreed. Merlin, Bepert. 
 
 Private acts are those made by private 
 persons as registers in relation to their re- 
 ceipts and expenditures, schedules, acquit- 
 tances, and the like. Nov. ?::. e. "J: Code 7. 
 32. 6; 4. 21; Dig 22. 4; La. Civ. Code art. 
 ■2-2:\~[ to 2254; 8 Toullier, Droit Civ. Francois 
 94. 
 
 Acts under private signature are those 
 which have been made by private individ- 
 uals under their hands. An act of this kind 
 does not acquire the force of an authentic 
 act by being registered In the office of a no- 
 tary; Marie Louise v. Cauchoix, 11 Mart, 
 o. s. (La.) 243; Priou v. Adams. 5 Mart. N. 
 S. (La.) 693; unless it has been properly ac- 
 knowledged before the officer by the parties 
 to It; Bullard v. Wilson, 5 Mart. X. S. (La.) 
 196. 
 
 Public acts are those which have a public
 
 ACT 
 
 116 
 
 ACT OF GOD 
 
 authority, and which have been made be- 
 fore public officers, are authorized by a pub- 
 lie seal, have been made public by the au- 
 thority of a magistrate, or which have been 
 extracted and been properly authenticated 
 from public records. 
 
 In Evidence. The act of one of several 
 
 conspirators, performed in pursuance of the 
 
 common design, is evidence against all of 
 
 them. And see Treason; Partner; Pabt- 
 
 i r ii' ; A ckx c ; AGENCY. 
 
 In Legislation. A statute or law made by 
 islative body ; an approved bill. 
 
 The words bill and law are frequently 
 used synonymously with act, but incorrectly ; 
 Sedgwick County Com'rs v. Bailey, 13 Kan. 
 600; a bill being only the draft or form of 
 the act presented to the legislature but not 
 enacted; Southwark Bank v. Com., 26 Pa. 
 
 General or public acts are those which 
 bind the whole community. Of these the 
 courts take judicial cognizance. 
 
 Private or special acts are those which 
 operate only upon particular persons and 
 private concerns. 
 
 The recitals of public acts are evidence 
 of the facts recited, but in private acts they 
 are only evidence against the parties secur- 
 ing them; Branson v. Wirth, 17 Wall. (U. 
 S.) 32. 21 L. Ed. 566. 
 
 Judicial Act. An act performed by a 
 court touching the rights of parties or prop- 
 erty brought before it by voluntary appear- 
 ance, or by the prior action of ministerial 
 officers; in short by ministerial acts. Flour- 
 noy v. Jeffersonville, 17 Ind. 173, 79 Am. 
 Dec. 46S ; Union Pac. R. Co. v. TJ. S., 99 TJ. 
 S. 700, 761, 25 L. Ed. 496. 
 
 See Statute; Constitutional; Construc- 
 tion ; Interpretation ; Punctuation. 
 
 Act in pais. An act performed out of 
 court, and which is not a matter of record. 
 
 A deed or an assurance transacted be- 
 tween two or more private persons in the 
 country, that is, according to the old com- 
 mon law, upon the very spot to be trans- 
 ferred, is matter in pais. 2 Bla. Com. 294. 
 
 ACT OF BANKRUPTCY. An act which 
 subjects a person to be proceeded against as 
 a bankrupt. See Bankrupt; Bankrupt 
 Laws ; Insolvency. 
 
 ACT OF GOD. Any accident due to nat- 
 ural causes directly and exclusively without 
 human intervention, such as could not have 
 been prevented by any amount of foresight 
 and pains, and care reasonably to have been 
 expected. L. R. 1 C. P. D. 423. See also 
 L. R. 10 Ex. 255. The civil law employs, as 
 a corresponding term, vis major. 
 
 The term generally applies, broadly, to 
 natural accidents, such as those caused by 
 lightning, earthquakes, and tempests; Story, 
 Bailm. § 511; Fish v. Chapman, 2 Ga. 349, 46 
 Am. Dec. 393. A severe snow-storm, which 
 blocked up railroads, held within the rule; 
 
 Ballentine v. R. Co., 40 Mo. 491, 93 Am. Dec. 
 315. So where fruit-trees were frozen, in 
 transit, it was held to be by the act of God, 
 unless there had been improper delay on the 
 part of the carrier; Vail v. R. Co., 63 Mo. 
 230. Also where fruit is in transit; Swet- 
 land v. R. Co., 102 Mass. 276. The freezing 
 of a canal or river held within the rule; 
 Parsons v. Hardy, 14 Wend. (N. Y.) 215, 28 
 Am. Dec. 521; Bowman v. Teall, 23 Wend. 
 (N. Y.) 306, 35 Am. Dec. 562; Harris v. 
 Rand, 4 N. II. 259, 17 Am. Dec. 421 ; Allen 
 v. Ins. Co., 44 N. Y. 437, 4 Am. Rep. 700. A 
 frost of extraordinary severity; 11 Ex. 781; 
 and an extraordinary fall of snow ; 28 L. J. 
 Ex. 51 ; have been held to be the act of God. 
 A sudden failure of wind has been held to 
 be an act of God ; Colt v. McMechen, 6 Johns. 
 (N. Y.) 160, 5 Am. Dec. 200; but this case 
 has been doubted; 1 Sm. L. C. Am. ed. 417; 
 and Kent, Ch. J., substantially dissented; 
 see also McArthur v. Sears, 21 Wend. (N. 
 Y.) 190. Also a sudden gust of wind or 
 tempest; Gillett v. Ellis, 11 111. 579; City of 
 Allegheny v. Zimmerman, 95 Pa. 287, 40 Am. 
 Rep. 649. Losses by fire have not generally 
 been held to fall under the act of God ; 1 T. 
 R. 33; Miller v. Navigation Co., 10 N. Y. 431; 
 Chicago & N. W. R. Co. v. Sawyer, 69 111. 
 285, 18 Am. Rep. 613; Merchants' Dispatch 
 Co. v. Smith, 70 111. 542 (the Chicago fire) ; 
 though otherwise when the fire is caused by 
 lightning; Parker v. Flagg, 26 Me. 181, 45 
 Am. Dec. 101; but where a distant forest 
 fire was driven by a tornado, to where a car- 
 rier's cars were on the track awaiting a lo- 
 comotive, their destruction was held to be by 
 the act of God ; Pennsylvania R. Co. v. Fries, 
 87 Pa. 234; but see Chevallier v. Straham, 2 
 Tex. 115, 47 Am. Dec. 639, contra. When a 
 flood had risen higher than ever before, de- 
 struction of goods thereby was held to be 
 by act of God; Read v. Spaulding, 30 N. Y. 
 630, 86 Am. Dec. 426, or where there is a 
 flood; Long v. R. Co., 147 Pa. 343, 23 Atl. 
 459, 14 L. R. A'. 741, 30 Am. St. Rep. 732; 
 Livezey v. Philadelphia, 64 Pa. 106, 3 Am. 
 Rep. 578. The bursting of a boiler does not 
 come within the act of God ; M'Call v. Brock, 
 5 Strob. (S. C.) 119. See Sherman v. Wells, 
 28 Barb. (N. Y.) 403; Fergusson v. Brent, 12 
 Md. 9, 71 Am. Dec. 582 ; Sprowl v. Kellar, 4 
 Stew. & P. (Ala.) 382; Hill v. Sturgeon, 28 
 Mo. 323. If water in a spring failed by 
 reason of drouth, there is no breach of con- 
 tract for its supply; Ward v. Vance, 93 Pa. 
 502. If a person is thrown from his horse 
 and injured, the resulting illness was con- 
 sidered an act of God ; People v. Tubbs, 37 
 N. Y. 586; so where a railroad engineer be- 
 came insane; Central. of Georgia Ry. Co. v. 
 Hall, 124 Ga. 322, 52* S. E. 679, 4 L. R. A. 
 (N. S.) 898, 110 Am. St. Rep. 170, 4 Ann. 
 Cas. 128. 
 
 In 1 C. P. D. 34, 423, Cockburn, C. J., held, 
 in an action for the loss of a horse on ship- 
 board, that if a carrier "uses all the known
 
 ACT OF GOD 
 
 117 
 
 ACT OF HONOR 
 
 means to which prudent and experienced 
 carriers usually have recourse, he does all 
 thai can be reasonably required of him, and 
 if under such circumstances he is overpow- 
 ered by stunn or other natural agency, he is 
 within the rule which gives immunity from 
 the effects of such vis major as the act of 
 God." The accident, to come within the rule, 
 must be due entirely to natur • with- 
 
 out human intervention ; ibid., also Mershon 
 v. Hobensack, 22 N, J. L. 373; Backhoi 
 Sneed, 5 N. C. 173; Ewart v. Street, 2 Bail- 
 ey (S. C.) 157, 23 Am. Dec. 14:5; Smyrl v. 
 Niolon, 2 Bailey (S. C.) 421, 23 Am. Dec. 146. 
 
 The term is sometimes defined as equiva- 
 lent to inevitable accident ; Neal v. Sauuder- 
 son, 2 Sin. & M. (Miss.) 572, 41 Am. Dec. 
 609 ; Fish v. Chapman, 2 Ga. 349, 46 Am. Dec. 
 393 : but incorrectly, as there is a distinc- 
 tion between the two; although Sir William 
 Jones proposed the use of inevitable acci- 
 dent instead of Act of God; Jones. Bailm. 
 104. See Story, Bailm. § 25; 2 Bla. Com. 
 122; 4 Dougl. 2S7; McArthur v. Scars, 21 
 Wend. (N. Y.) 190; Neal v. Saunderson, 
 2 Smedes & M. (Miss.) 5712. 41 Am. Dec. 609; 
 Bolton v. Burnett, 5 Blackf. (Ind.) 222. 
 
 Where the law casts a duty on a party, 
 the performance shall be excused if it be 
 rendered impossible by the act of God ; lex 
 neminem cogit ad impossibilia; 1 Q. B. D. 
 548; but where the party by his ou-n con- 
 tract engages to do an act, it is deemed to 
 he his own fault that he did not thereby 
 provide against contingencies, and exempt 
 himself from responsibilities in certain 
 events; and in such case (that is, in the in- 
 stance of an absolute general contract) the 
 non-performance is not excused by an in- 
 evitable accident, or other contingency, al- 
 though not foreseen by, nor within the con- 
 trol of, the party; 3 M. & S. 267; L. R. 5 
 C. P. 586 ; L. R. 4 Q. B. 134 ; Leake, Contr. 
 683. 
 
 As to goods destroyed after delay in trans- 
 it, see Alabama G. S. R. Co. v. Quarles. 145 
 Ala. 436, 40 South. 120, 5 L. R. A. (N. S.) 
 867, 117 Am. St. Rep. 54, 8 Ann. Cas. 308; 
 Green-Wheeler Shoe Co. v. R. Co., 130 la. 
 12:":. 106 N. W. 498, 5 L. R. A. (N. S.) 882, 
 8 Ann. Cas. 45. 
 
 See Bailment; Common Carrier; Inevi- 
 table Accident; Peril of the Sea; Specific 
 Performance. 
 
 ACT OF GOVERNMENT. The usual name 
 of Cromwell's Constitution vesting the su- 
 preme power in a Protector and two houses 
 of Parliament, passed March 25, H>r>7. 
 
 ACT OF GRACE. A term sometimes ap- 
 plied to a general, pardon or the granting or 
 extension of some privilege at the beginning 
 of a new reign or the coming of age or mar- 
 riage of a sovereign. 
 
 ACT OF HONOR. An instrument drawn 
 up by a notary public, after protest of a bill 
 
 of exchange, when a third party is desirous 
 of paying or accepting the lull for the honor 
 of any or all of the parties to it. 
 
 The instrument describes the bill, recites its pro- 
 test, and the fact of a third person coming forward 
 to accept, and the person or persons for whose hon- 
 or the acceptance is made. The right to pay the 
 debt of another, and still hold him, Is allowed by 
 the law merchant in this instance, and is an ex- 
 ception to the general rule of law ; and the right 
 can only be gained by proceeding in the form and 
 manner sanctioned by the law; Gazzam v. Arm- 
 strong's Ex'r, 3 Dana (Ky.) 554; Bayley, Bills. 
 
 ACT OF INDEMNITY. An act or decree 
 absolving a public othcer or other person 
 who has used doubtful powers or usurped 
 an authority not belonging to him from the 
 technical legal penalties or liabilities there- 
 for or from making good losses incurred 
 thereby. Cent. Diet. 
 
 ACT OF INSOLVENCY. Within the mean- 
 ing of the national currency act, an act 
 which shows a bank to be insolvent; Buch 
 as non-payment of its circulating notes, etc, 
 failure to make good the impairment of cap- 
 ital or to keep good its surplus or reserve; 
 any act which shows the bank is unable to 
 meet its liabilities as they mature or to per- 
 form those duties which the law Imposes for 
 the purpose of sustaining its credit ; In re 
 Manufacturers' Nat. Bank, 5 Biss. 504, Fed.. 
 Cas. No. 9,051; Irons v. Bank, 6 Biss. .301, 
 Fed. Cas. No. 7,068. See Insolvency. 
 
 ACT OF PARLIAMENT. See Statute. 
 
 ACT ON PETITION. A form of summary 
 proceeding formerly in use in the High Court 
 of Admiralty, in England, in which the par- 
 ties stated their respective cases brieily, and 
 supported their statements by affidavit. 2 
 Dods. Adm. 174, 184; 1 Ilagg. Adm. 1, note. 
 
 The suitors of the English Admiralty were, wnacr 
 the former practice, ordinarily entitled to elect to 
 proceed either by act on petition, or by the ancient 
 and more formal mode of "plea and proof ;" that 
 is, by libel and answer, and the examination of wit- 
 nesses; W. Rob. Adm. 169, 171, 172. 
 
 ACT OF SETTLEMENT. In English Law. 
 The statute of 12 & 13 Will. III. c. 2. by 
 which the crown of England was limited to 
 the present royal family. 1 Bla. Com. 128; 
 2 Steph. Com. 290. It excluded the sons and 
 successors of James II. and all other Roman 
 Catholics, entailed the crown on the Elector- 
 ess Sophia of Hanover as the nearest Prot- 
 estant heir in case neither William III. nor 
 Anne (afterwards Queen* should leave issue. 
 The electoress was a daughter of Elizabeth, 
 sister of Charles I. One clause of it made 
 the tenure of judges' office for life or good 
 behavior independent of the crown. 
 
 ACT OF STATE. See Governmental Act. 
 
 ACT OF SUPREMACY. An act of 26 
 Hen. VIII. c. 1, which recognized the king as 
 the only supreme head on earth of the 
 Church of England having full power to cor- 
 ivt all errors, heresies, abuses, offenses, 
 contempts and enormities. The oath, taken
 
 ACT OF SUPREMACY 
 
 118 
 
 ACTIO 
 
 under the act, denies to the Pope any other 
 authority than that of the Bishop of Rome. 
 
 ACT OF UNIFORMITY. An act for the 
 regulation of public worship obliging all the 
 clergy to use only the Book of Common 
 Prayer; 13 & 14 Car. II. c . 4. 
 
 ACT OF UNION. The statutes uniting 
 England and Wales, 27 lion. VIII. c. 26, con- 
 firmed by 34 & 35 Hen. VIII. c. 26; England 
 and Scotland, 5 Anne, c. 8; Great Britain 
 and Ireland. 39 & 40 Geo. III. c. 07. 
 
 The act uniting the three lower counties 
 (now Delaware) to the province of Pennsyl- 
 vania, passed at Upland, Dec. 7, 1682, is so 
 called. 
 
 ACTA DIURNA (Lat). A formula often 
 used in signing. Du Cange. 
 
 Daily transactions, chronicles, journals, 
 registers. I do not find the thing published 
 in the acta diurna (daily records of affairs) ; 
 Tacitus, Ann. 3, 3; Ainsworth, Lex.; Smith, 
 Lex. 
 
 ACTA PUBLICA (Lat). Things of gener- 
 al knowledge and concern; matters transact- 
 ed before certain public officers. Calvinus, 
 Lex. 
 
 ACTING. Performing; operating. See 
 Meyer v. Johnston, 64 Ala. 603, 665. When 
 applied to a supervising executive, it desig- 
 nates, not an appointed ineuinbent, but mere- 
 ly a locum tcnens. Fraser v. U. S., 16 Ct. 
 CI. 507. See Ad Interim. 
 
 ACTIO. In Civil Law. A specific mode of 
 enforcing a right before the courts of law: 
 e. g. legis actio; actio sacramenti. In this 
 sense we speak of actions in our law, e. g. 
 the action of debt. The right to a remedy, 
 thus; ex nudo pacto non oritur actio; no 
 right of action can arise upon a naked pact. 
 In this sense we rarely use the word action; 
 3 Ortolan, Inst. § 1830; 5 Savigny, System 
 10; Mackeldey, Civ. L. (13th ed.) § 193. 
 
 The first sense here given is the older one. Jus- 
 tinian, following Celsus, gives the well-known defi- 
 nition: Actio nihil aliitd est quam jus persequendi 
 in judicio quod sibi debetur, which may be thus 
 rendered: An action is simply the right to enforce 
 one's demands in a court of law. See Inst. Jus. 4. 
 6, de Actionibus; Pollock, Expansion of C. L. 92. 
 
 In the sense of a specific form of remedy, 
 there are various divisions of actiones. 
 
 Actiones chiles are those forms of reme- 
 dies which were established under the rigid 
 and inflexible system of the civil law, the 
 jus civilis. Actiones honoraria? are those 
 which were gradually introduced by the 
 praetors and sediles, by virtue of their equi- 
 table powers, in order to prevent the failure 
 of justice which too often resulted from the 
 employment of the actiones civiles. These 
 were found so beneficial in practice that 
 they eventually supplanted the old remedies, 
 of which in the time of Justinian hardly a 
 trace remained. Mackeldey, Civ. L. § 194; 
 5 Savigny, System. 
 
 Dirccta' actiones, as a class, were forms 
 of remedies for cases clearly defined and 
 recognized as actionable by the law. Utiles 
 actiones were remedies granted by the mag- 
 istrate in cases to which no actio dirccta 
 was applicable. They were framed for the 
 special occasion, by analogy to the existing 
 forms, and were generally fictitious; that 
 is, they proceeded upon the assumption that 
 a state of things existed which would have 
 entitled the party to an actio dirccta, and 
 the cause was tried upon this assumption, 
 which the other party was not allowed to 
 dispute. 5 Savigny, System § 215. 
 
 Ai, r ;iin, there are actiones in personam and 
 actiones in rem. The former class includes 
 all remedies for the breach of an obligation, 
 and are considered to be directed against 
 the person of the wrong-doer. The second 
 class comprehends all remedies devised for 
 the recovery of property, or the enforcement 
 of a right not founded upon a contract be- 
 tween the parties, and are therefore consid- 
 ered as rather aimed at the thing in dis- 
 pute, than at the person of the defendant. 
 Mackeldey, Civ. L. § 195 ; 5 Savigny, System, 
 § 206; 3 Ortolan, Inst. § 1952. 
 
 In respect to their object, actions are ei- 
 ther actiones rei persequendw causa com- 
 parator, to which class belong all in rem 
 actiones, and those of the actiones in per- 
 sonam which were directed merely to the re- 
 covery of the value of a thing, or compen- 
 sation for an injury ; or they are actiones 
 poznales, called also actiones ex delicto, in 
 which a penalty was recovered of the delin- 
 quent, or actiones mixta;, in which were re- 
 covered both the actual damages and a pen- 
 alty in addition. These classes, actiones 
 poznales and actiones mixta:, comprehended 
 cases of injuries, for which the civil law 
 permitted redress by private action, but 
 which modern civilization universally re- 
 gards as crimes; that is, offences against, 
 society at large, and punished by proceed- 
 ings in the name of the state alone. Thus, 
 theft, receiving stolen goods, robbery, mali- 
 cious mischief, and the murder or negligent 
 homicide of a slave (in which case an injury 
 to property was involved), gave rise to pri- 
 vate actions for damages against the delin- 
 quent. Inst. 4. 1. Be obligationibus qua; ex 
 delicto nascuntur; id. 2. De bonis vi raptis; 
 id. 3. De lege Aquilia. And see Mackeldey, 
 Civ. L. § 190; 5 Savigny, System § 210. 
 
 In respect to the niode of procedure; ac- 
 tiones in personam are divided into strict i 
 juris, and bona? fldei actiones. In the for- 
 mer the court was confined to the strict let- 
 ter of the law; in the latter something was 
 left to the discretion of the judge, who was 
 governed in his decision by considerations 
 of what ought to be expected from an honest 
 man under circumstances similar to those 
 of the plaintiff or defendant Mackeldey, 
 Civ. L. § 197 a.
 
 ACTIO 
 
 119 
 
 ACTIO 
 
 In Savigny's System there are more than 
 a hundred different species of actio mention- 
 ed, and even in the succinct treatise of 
 Mackeldey nearly eighty are enumerated. 
 
 In addition to the works cited may be add- 
 ed the Introduction to Sandars' Justinian, 
 which may be profitably consulted. 
 
 To this brief explanation of the most important 
 classes of actiones we subjoin an outline of the 
 Roman system of procedure. From the time of the 
 twelve tables (and probably from a much earlier 
 period) down to about the middle of the sixth cen- 
 tury of Rome, the system of procedure was that 
 known as the actiones legis. Of these but five have 
 come down to us by name ; the actio sacramenti, 
 the actio per judicis postulationem, the actio per 
 condictionem, the actio per manus injectionem, and 
 the actio per pignoris captionem. The first three of 
 these were actions in the usual sense of the term; 
 the last two were modes of execution. The actio 
 sacramenti is the best known of all, because from 
 the nature of the questions decided by means of it, 
 which included those of status, of property ex jure 
 Quiritium, and of successions ; and from the great 
 popularity of the tribunal, the centumviri, which 
 had cognizance of these questions, it was retained 
 in practice long after the other actions had suc- 
 cumbed to a more liberal system of procedure. 
 As the actio sacramenti was the longest-lived, so It 
 was also the earliest, of the actiones leges; and it 
 Is not only in many particulars a type of the whole 
 class, but the other species are conceived to have 
 been formed by successive encroachments upon its 
 field. The characteristic feature of this action was 
 the sacramentum, a pecuniary deposit made in 
 court by each party, which was to be forfeited by 
 the loser. Subsequently, however, the parties were 
 allowed, instead of an actual deposit, to give secu- 
 rity in the amount required. Our knowledge of all 
 these actions is exceedingly slight, being derived 
 from fragments of the earlier jurisprudence pre- 
 served in literary works, laboriously pieced togeth- 
 er by commentators, and the numerous gaps filled 
 out by aid of ingenious and most copious conjec- 
 tures. They abounded in sacramental words and 
 significant gestures, and, while they were inflexibly 
 rigid in their application, they possessed a charac- 
 ter almost sacred, so that the mistake of a word 
 or the omission of a gesture might cause the loss of 
 a suit. In the nature of things, such a system could 
 not maintain itself against the advance of civiliza- 
 tion, bringing with it increased complications in all 
 the relations of man to man ; and accordingly we 
 find that it gradually, but sensibly, declined, and 
 that at the time of Justinian not a trace of it ex- 
 isted in practice. See 3 Ortolan, Justinian 467 et 
 seq. 
 
 About the year of Rome 507 began the introduc- 
 tion of the system known as the procedure per 
 formulam, or ordinaria judicia. An important part 
 of the population of Rome consisted of foreigners, 
 whose disputes with each other or with 
 citizens could not be adjusted by means of the ac- 
 tiones leges, these being entirely confined to ques- 
 tions of the strict Roman law, which could only 
 arise between Roman citizens. 
 
 To supply the want of a forum for foreign resi- 
 dents, a magistrate, the prwtor peregrinus, was 
 constituted with jurisdiction over this class of suits, 
 and from the procedure established by this new 
 court sprang the formulary system, which proved 
 so convenient in practice that it was soon adopted 
 in suits where both parties were Roman citizens, 
 and gradually withdrew case after case from the 
 domain of the legis actiones, until few questions 
 were left in which that cumbrous procedure con- 
 tinued to be employed. 
 
 An important feature of the formulary syst. m, 
 though not peculiar to that system, was the distinc- 
 tion between the jus and the judicium, between the 
 magistrate and the judge. The magistrate was 
 vested with the civil authority, imperium, and that 
 jurisdiction over law-suits which in every state is 
 inherent in the supreme power; he received the 
 
 parties, heard their conflicting statements, and re- 
 ferred the case to a special tribunal of one or more 
 persons, judex, arbiter, recuperatores. The func- 
 tion of this tribunal was to ascertain the fax 
 pronounce judgment thereon, in confori:. 
 special authorization to that effect conferr. 
 the magistrate. Here the authority of the 
 ended ; if the defeated party refused to comply 
 with the sentence, the victor must again resort to 
 the magistrate to enforce the judgment. From this 
 it would appear that the functions of the judge or 
 judges under the Roman system correspond 
 many respects with those of the Jury at common 
 law. They decided the question of fact sub- 
 to them by the magistrate, as the Jury deci . 
 Issue eliminated by the pleadings ; and, the 
 siou made, their functions ceased, like those of the 
 jury. 
 
 As to the amount at stake, the magistrate, in cas- 
 es admitting it, had the power to fix the sum in 
 dispute, and then the Judge's duties were confined 
 to the simple question whether the sum s; 
 was due the plaintiff or not; and if he i 
 diminished this amount he subjected himself to an 
 action for damages. In other cases, instead of a 
 precise sum, the magistrate fixed a maximum sum, 
 beyond which the judge could not go in ascertain- 
 ing the amount due; but in most cases the : 
 trate left the amount entirely to the discretion of 
 the judge. 
 
 The directions of the magistrate to the judge were 
 made up in a brief statement called the formula, 
 which gives Its name to this system of procedure. 
 The composition of the formula was governed by 
 well-established rules. When complete, it consisted 
 of four parts, though some of these were frequently 
 omitted, as they were unnecessary in certain class- . 
 es of actions. The first part of the formula, called 
 the demonstratio, recited the subject submitted to 
 the judge, and consequently the facts of which he 
 was to take cognizance. It varied of course, with 
 the subject-matter of the suit, though each class 
 of cases had a fixed and appropriate form. This 
 form, in an action by a vendor against his ven- 
 dee, was as follows: "Quod Aulus Aj/crius Numerio 
 Negidio hominem vendidit ;" or, in case of a bail- 
 ment, "Quod Aulus Agerius apud Nuynerium 
 dium hominem deposuit." The second part of the 
 formula was the intentio: in this was stated the 
 claim of the plaintiff, as founded upon the facts set 
 out in the demonstratio. This, in a question of con- 
 tracts, was in these words: "Si paret Xumcrium 
 Negidium Aulo Agerio sestertium X milia dare opor- 
 tere," when the magistrate fixed the amount ; or, 
 "Quidquid paret Xumcrium Negidium Aulo Agerio 
 dare facere oportere," when he left the amount to 
 the discretion of the judge. In a claim of property 
 the form was, "Si paret hominem ex jure (juiritium 
 Auli Agerii esse." The third part of the complete 
 formula was the adjudicatio, which contained the 
 authority to the judge to award to one party ;. 
 of property belonging to the other. It was i: 
 words: "Quantum adjudicari oportct, fudes 
 
 uto." The last part of the formula was the 
 condemnatio, which gave the judge authority to 
 pronounce his decision for or against the defendant. 
 It was as follows: "Judex, Nw 
 Aulo Agerio sestertium X milia condemna: si non 
 paret, absolve," when the amount was fixed ; or, 
 Numcrium Xcgidium Aulo Agerio dum- 
 X milia condemna: si non pari.:. 
 when the magistrate fixed a maxi; 
 ea res erit, tantam pecuniam, 
 
 :nn Aulo Agerio condemna : si run 
 ," when it was left to the discretion of the 
 judge. 
 
 Of these parts, the intentio and the condemnatio 
 were always employed: the d< monstratio was some- 
 times found unnecessary, and the adjudicatio only- 
 occurred in three species of actions— familias ercis- 
 cundce communi dividundo. and finium rcgundorum 
 —which were actions for division of an inheritance, 
 actions of partition, and suits for the rectification 
 of boundaries. 
 
 The above are the essential parts of the formula 
 in their simplest form ; but they are often enlarged
 
 ACTIO 
 
 120 
 
 ACTIO jESTIMATORIA 
 
 by the insertion of clauses In the demonstration the 
 intcntio, or the condcmnatio, which were useful or 
 necessary In certain cases: these clauses are called 
 jnes. When such a clause was Inserted for 
 the benefit of the defendant, containing a statement 
 of his defence to the claim set out in the int 
 was called an exceptio. To this the plaintiff might 
 have an answer, which, when inserted, constituted 
 the replicatio, and so on to the duplicatio and tripli- 
 cate. These clauses like the intcntio in which they 
 were inserted, were all framed conditionally, and 
 not, like the common-law pleadings, affirmatively. 
 Thus: "St paret Numerium Negidium Aulo Agerio 
 X milia dare oportcre (Intel I ea re nihil 
 
 dolo malo Auli Agcrii factum sit neque fiat (ex- 
 ceptio) ; Si non, etc. (replicatio). 
 
 In preparing the formula the plaintiff presented 
 to the magistrate his demonstrate, intentio, etc., 
 which was probably drawn in due form under the 
 advice of a jurisconsult ; the defendant then pre- 
 sented his adjectiones, the plaintiff responded with 
 his replications and so on. The magistrate might 
 modify these, or insert new adjectiones, at his dis- 
 cretion. After this discussion in jure, pro tribunali, 
 the magistrate reduced the results to form, and 
 sent the formula to the judge, before whom the 
 parties were confined to the case thus settled. See 
 3 Ortolan, Justinian, §§ 1900 et seq. 
 
 The procedure per formulam was supplanted in 
 course of time by a third system, extraordinaria 
 judicia, which in the days of Justinian had become 
 universal. The essence of this system consisted in 
 dispensing with the judge altogether, so that the 
 magistrate decided the case himself, and the dis- 
 tinction between the jus and the judicium was prac- 
 tically abolished. This new system commenced 
 with usurpation by the magistrates, in the exten- 
 sion of an exceptional jurisdiction, which had exist- 
 ed from the time of the leges actiones, to cases not 
 originally within its scope. Its progress may be 
 traced by successive enactments of the emperors, 
 and was so gradual that, even when it had com- 
 pletely undermined its predecessor, the magistrate 
 continued to reduce to writing a sort of formula 
 representing th# result of the pleadings. In time, 
 however, this last relic of the former practice was 
 abolished by an imperial constitution. Thus the 
 formulary system, the creation of the great Roman 
 jurisconsults, was swept away, and carried with it 
 in its fall all those refinements of litigation in 
 which they had so much delighted. Thenceforth the 
 distinctions between the forms of actions were no 
 longer regarded, and the word actio, losing its sig- 
 nification of a form, came to mean a right, jus per- 
 sequendi in judicio quod sibi debetur. 
 
 See Ortolan, Hist. no. 392 et seq.; id. Instit. nos. 
 1833-2067 ; 5 Savigny, System § 6 ; Sandars, Justin- 
 ian, Introduction; Gaius, by Abdy & Walker. 
 
 The English "formulary system" of actions is 
 "distinctively English but also in a certain sense 
 very Roman." It was not "invented in one piece 
 by some all-wise legislator," but "grew up little 
 by little." The age of its rapid growth was between 
 1154 and 1272. The similarity between the Roman 
 and English formulary systems is so patent that 
 it has naturally aroused the suggestion that one 
 must have been, the model for the other, and it is 
 very true that between 1150 and 1250, or thereabouts, 
 the old Roman law in its medieval form exercised 
 a powerful influence- on some of the English rules. 
 But the differences in the system were as remarka- 
 ble as the resemblances. Thus the Praetor heard 
 both parties before he composed his formula, while 
 the chancellor issues the writ before he hears the 
 defendant's story. It is usually "as of course." 
 The English forms of action were therefore not 
 mere rubrics, but were institutes of the law. There 
 were in common use some thirty or forty actions 
 between which there were large differences. 2 Poll. 
 & Maitl. 556. 
 
 See Jus Ad Rem. 
 
 ACTIO /ESTIMATOR1A, ACTIO QUANTI 
 
 .tllNORIS. In the civil law two names of 
 an action which lay on behalf of a buyer 
 
 to reduce the contract price proportionately 
 to the defects of the object, not to cancel the 
 sale; the judex had power, however, to can- 
 cel the sale ; Hunter, Rom. Law 505. 
 
 ACTIOARBITRARIA. An action depend- 
 ing on the discretion of the judge. In this, 
 unless the defendant makes amends to the 
 plaintiff at the judge's discretion, he must be 
 condemned; Hunter, Rom. Law 9S7. 
 
 ACTIO BON/E FIDEI (Lat. an action of 
 good faith). A class of actions in which the 
 judge might at the trial take into account 
 any equitable circumstances affecting either 
 of the parties to the action. 1 Spence, Eq. 
 Jur. 210. 
 
 ACTIO CALUMNI>E. An action to re- 
 strain the defendant from prosecuting a 
 trumped up charge against the plaintiff. 
 Hunter, Rom. Law 1020. An action for ma- 
 licious prosecution. So. Afr. Leg. Diet. 
 
 ACTIO CIVILIS. A civil as distinguished 
 from a criminal action. 
 
 ACTIO C0MM0DATI CONTRARIA. An 
 
 action by the borrower against the lender, 
 to compel the execution of the contract Po- 
 thier, Pret d Usage n. 75. 
 
 ACTIO C0MM0DATI DIRECTA. An ac- 
 tion by a lender against a borrower, the prin- 
 cipal object of which is to obtain a restitu- 
 tion of the thing lent Pothier, Pre~t & Usage 
 nn. 65, 68. 
 
 ACTIO COMMUNI DIVIDUNDO. An ac- 
 tion for a division of the property held in 
 common. Story, Partn. Bennett ed. § 352. 
 
 ACTIO C0NDICTI0 INDEBITAT1. An 
 
 action by which the plaintiff recovers the 
 amount of a sum of money or other thing 
 he paid by mistake. Pothier, Promutuum n. 
 140; Merlin, Rep. 
 
 ACTIO EX CONDUCTO. An action which 
 the bailor of a thing for hire may bring 
 against the bailee, in order to compel him 
 to re-deliver the thing hired. Pothier, du 
 Contr. de Louage n. 59; Merlin, Rep. 
 
 ACTIO CONFESSOR I A. An affirmative 
 petitory action for the enforcement of a serv- 
 itude. Hunter, Rom. Law 425. 
 
 ACTIO EX CONTRACTU. See Action. 
 
 ACTIO DAMNI INJURIA. The name of a 
 general class of actions for damages. 
 
 ACTIO EX DELICTO. See Action. 
 
 ACTIO DEPOSITI CONTRARIA. An ac- 
 tion which the depositary has against the 
 depositor, to compel him to fulfil his engage- 
 ment towards him. Pothier, Du Dep6t n. 69. 
 
 ACTIO DEPOSITI DIRECTA. An action 
 which is brought by the depositor against 
 the depositary, in order to get back the thing 
 deposited. Pothier, Du D4p6t n. 60. 
 
 ACTIO DIRECTA. A direct action; an 
 action founded on strict law and conducted
 
 ACTIO DIRECTA 
 
 121 
 
 ACTIO JUDICATI 
 
 according to fixed forms founded on certain 
 legal obligations. 
 
 ACTIO DE DOLO MALO. An action of 
 fraud. It lay for a defrauded person against 
 the defrauder and bis heirs who had been 
 enriched hy the fraud, to obtain restitution 
 of the thing of which he had been fraudu- 
 lently deprived with all its accessions, or, 
 where this was not practicable, Cor compen- 
 sation iu damages ; Black, citing Mackeldy, 
 Bom. Law § 227. 
 
 ACTIO EMPTI. An action to compel a 
 seller to perform his obligations or pay com- 
 pensation ; also to enforce any special agree- 
 ments by him emhodied in a contract of sale. 
 Hunter, Rom. L. 505. 
 
 ACTIO EXERCITORIA. An action 
 against the excreitor or employer of a ves- 
 sel. Black I* Diet, 
 
 ACTIO AD EXHIBENDUM. An action in- 
 stituted for the purpose of compelling the 
 person against whom it was brought to ex- 
 hibit some thing or title in his power. 
 
 It was always preparatory to another ac- 
 tion, which lay for the recovery of a thing 
 movable or immovable; 1 Merlin, Quest, de 
 Droit 84. 
 
 ACTIO IN FACTUM. An action adapted 
 to the particular case which had an analogy 
 to some actio in jus which was founded on 
 some subsisting acknowledged law. 1 Spence, 
 Eq. Jur. 212. The origin of these actions is 
 strikingly similar to that of actions on the 
 case at common law. See Case. 
 
 ACTIO FAMILI/E ERCISCUND>€. An ac- 
 tion for the division of an inheritance. Inst 
 4. G. 20 ; Bracton 100 &. 
 
 ACTIO FURTI. An action of theft. Just 
 4, 1, 13-17. This could only be brought for 
 the penalty attached to the offence, and not 
 to recover the thing stolen, for which other 
 actions were provided. Just. 4, 1, 13. An 
 a i 'peal of larceny. The old process by which 
 a thief can be pursued and the goods vindi- 
 cated. 2 Holdsw. Hist Eng. L. 202. 
 
 ACTIO HONORARIA. An honorary or 
 praetorian action. Dig. 44, 7, 25, 35. 
 
 ACTIO JUDICATI. An action instituted, 
 after four months had elapsed after the ren- 
 dition of judgment in which the judge is- 
 sued his warrant to seize, first, the movables, 
 which were sold within eight days after- 
 wards; and then the immovables, which 
 were delivered in pledge to the creditors, or 
 put under the care of a curator, and if, at 
 the end of two months, the debt was not 
 paid, the land was sold. Dig. 42. 1 ; Code, 
 8. 34. 
 
 According to some authorities, if the de- 
 fendant then utterly denied the rendition of 
 the former judgment, the plaintiff was driven 
 to a new action, conducted like any other 
 action, which was called actio judivati. and 
 which had for its object the determination 
 
 of the question whether such a judgment had 
 been rendered. The' exact meaning of the 
 term is by no means clear. , igny, 
 
 Byst 305, 411; 3 Ortolan, Just. § - 
 
 ACTIO LEGIS AQUILI>€. In Civil Law. 
 An action under the Aquilian law to re- 
 cover damages for maliciously injuring in 
 any way a thing belonging to another. . 
 sir's Mackeldey's Rom. Law, § 
 
 ACTIO EX L0CAT0. An action which a 
 i who let a thing for hire to an 
 might have against the hirer. Dig. 19, 2. 
 
 ACTIO MANDATI. An action found- 
 on a mandate. Dig. 17. 1. 
 
 ACTIO MIXTA. A mixed action for the 
 recovery of a thing, or compensation for 
 damages and also for the payment of a pen- 
 alty partaking of the nature of an action 
 in rem and in p< rsonam. Hunter, Rom. L. 
 340. 
 
 ACTIO N0N. In Pleading. The declara- 
 tion in a special plea "that the said plaintiff 
 ought not to have or maintain his aforesaid 
 action thereof against" the defendant (in 
 Latin, actionem non habere debet). 
 
 It follows immediately after the statement 
 of appearance and defence; 1 Chit Plead: 
 531; 12 id. 421; Stephens, Plead. 394. 
 
 ACTIO NON ACCREVIT INFRA SEX 
 ANN OS (Lat). The action did not accrue 
 within six years. 
 
 A plea of the statute of limitation 
 which the defendant insists that the plain- 
 tiff's action has not accrued within six years. 
 It differs from non assumpsit in this: 
 assumpsit is the proper plea to an action on 
 a simple contract, when the action accrues 
 on the promise; but when it does not accrue 
 on the promise, but subsequently to it. the 
 proper plea is actio non accrevit, etc. ; Lawes, 
 Plead. 733; Meade v. M'Dowell, 5 Binn. (Pa.i 
 200, 203 ; 2 Salk. 422 ; 2 Saund. 63 0. 
 
 ACTIO NON ULTERIUS. A name given 
 in English pleading to the distinctive clause 
 in the plea to the further maintenance of 
 the action; introduced in place of the pica 
 puis darrein continuance. Steph. PI. 61. 65, 
 401 ; Black, Law Diet 
 
 ACTIO DE PECULI0. An action concern- 
 ing or against the peoulium or separate prop- 
 erty of a party. 
 
 ACTIO DE PECUNIA C0NSTITUTA. An 
 
 action for money due under a promise. 
 Campbell, Rom. L. 150. 
 
 ACTIO PERSONALIS. A personal action. 
 The proper term in the civil law is actio in 
 nam. See that title and Actio. 
 
 ACTIO PERSONALIS M0RITUR CUM 
 PERSONA (Lat). A personal action dies 
 with the person. 
 
 In Practice. A maxim which expn 
 the law in regard to the surviving of per- 
 sonal actions.
 
 ACTIO PERSONALIS 
 
 L22 
 
 ACTIO PERSONALIS 
 
 This maxim does not apply in case of the | 
 civil death of either persons or corporations ; 
 Shayne v. Publishing Co.. 168 N. Y. 70, 61 N. 
 E. 115, 55 L. R. A. 777. 85 Am. St. Rep. 654. 
 
 To render the maxim perfectly true, the 
 expression "personal actions" must be re- 
 stricted very mueh within its usual limits. 
 In the most extensive sense, all actions are 
 personal which are neither real nor mixed, 
 and in this sense of the word personal the 
 maxim is not true. A. further distinction, 
 moreover, is to he made between personal 
 actions actually commenced and pending at 
 the death of the plaintiff or defendant, and 
 can-.- of action upon which suit might have 
 been, but was not, brought by or against the 
 I in his lifetime. In the case of ac- 
 tions actually commenced, the old rule was 
 that the suit abated by the death of either 
 party. In re Connaway, 178 U. S. 421, 20 
 Sup. Ct. 951, 44 L. Ed. 1134; Maeker's Heirs 
 v. Thomas, 7 Wheat. (U. S.) 530, 5 L. Ed. 515. 
 But the inconvenience of this rigor of the 
 common law has been modified by statutory 
 provisions in England and the states of this 
 country, which prescribe in substance that 
 when the cause of action survives to or 
 against the personal representatives of the 
 deceased, the suit shall not abate by the 
 death of the party, but may proceed on the 
 substitution of the personal representatives 
 on the record by scire facias, or in some 
 states by simple suggestion of the facts on 
 the record. See Green v. Watkins, 6 Wheat. 
 (U. S.) 260, 5 L. Ed. 256. 
 
 Contracts. — It is clear that, in general, 
 a man's personal representatives are liable 
 for his breach of contract on the one hand, 
 and, on the other, are entitled to enforce 
 contracts made with him. This is the rule; 
 but it admits of a few exceptions ; Stimp- 
 son v. Sprague, 6 Greenl. (Me.) 470; Wright 
 v. Eldred, 2 D. Chipm. (Vt.) 41. 
 
 No action lies against executors upon a 
 covenant to be performed by the testator in 
 person, and which consequently the execu- 
 tor cannot perform, and the performance 
 of which is prevented by the death of tes- 
 tator ; 3 Wils. Ch. 99 ; Cro. Eliz. 553 ; Howe 
 Sewing Mach. Co. v. Rosensteel, 24 Fed. 5S3 ; 
 as if an author undertakes to compose a 
 work, or a master covenants to instruct an 
 apprentice, but is prevented by death. See 
 Wins. Exec. 1467. But, for a breach commit- 
 ted by deceased in his lifetime, his executor 
 would be answerable ; 1 M. & W. 423, per 
 Parke, B. ; Dickinson v. Calahan's Adm'rs, 19 
 Pa. 2 
 
 As to what are such contracts, see 2 Perr. 
 & D. 251 ; 10 Ad. & E. 45 ; 1 M. & W. 423 ; 
 Dempsey v. Hertzfield, 30 Ga. 866; Siler v. 
 Gray, 86 N. C. 566. But whether the con- 
 tract is of such a nature is a mere question 
 of construction, depending upon the inten- 
 tion of the parties ; Cro. Jac. 282 ; 1 Bingh. 
 225; unless the intention be such as the 
 
 law will not enforce; Dickinson v. Calahan's 
 Adm'rs, 19 Pa. u:;.".. 
 
 Under a statute recognizing as surviving 
 causes of action those which survived at 
 ii law, a cause of action, on a covenant 
 on which a decedent might have been sued, 
 may be enforced against his representatives, 
 and it was held that the rule of common law 
 that a suit abated though the cause of ac- 
 tion survived, was modified by the statute, 
 and a suit pending against decedent on a 
 covenant did not abate; Sprague v. Greene, 
 20 R. I. 153, 37 Atl. 699. 
 
 Again, an executor, etc., cannot maintain 
 an action on a promise made to decedent 
 where the damage consisted entirely in the 
 persona] suffering of the deceased without 
 any injury to his personal estate, as a breach 
 of promise of marriage; 2 M. & S. 40S; Smith 
 v. Sherman, 4 Cush. (Mass.) 408 ; Hovey v. 
 Page, 55 Me. 142 ; L. R. 10 C. P. 189 ; Latti- 
 more v. Simmons, 13 S. & R. (Pa.) 183 ; Mil- 
 ler v. Wilson, 24 Pa. 115; Wade v. Kalb- 
 fleisch, 58 N. Y. 282, 17 Am. Rep. 250 ; Steb- 
 bins v. Palmer, 1 Pick. (Mass.) 71, 11 Am. 
 Dec. 146; Hayden v. Vreeland, 37 N. J. L. 
 372, 18 Am. Rep. 723 ; Grubb's Adm'r v. Suit, 
 32 Grat. (Va.) 203, 34 Am. Rep. 765. But in 
 Louisiana the action survives if there has 
 been a default, on the ground that the ob- 
 ligation to fulfill the engagement is merged 
 in the obligation to respond in damages for 
 the default ; Johnson v. Levy, 118 La. 447, 
 43 South. 46, 9 L, R. A. (N. S.) 1020, 118 
 Am. St. Rep. 378, 10 Ann. Cas. 722. 
 
 Upon the question whether the action sur- 
 vives where there is not only personal in- 
 jury but damage to property also — where 
 the latter is the chief element of the dam- 
 ages sought, the action survives; 2 M. & S. 
 409; Lattimore v. Simmons, 13 S. & R. (Pa.) 
 183; Hovey v. Page, 55 Me. 142; but when 
 the damages to the property are incidental 
 merely to the personal injury there is less 
 certainty. That the action survives is the 
 inclination of English cases; L. R.-C. P. 189; 
 30 L. T. Rep. N. S. 765 ; S. C. 32 id. 36 ; so 
 also in Lattimore v. Simmons, 13 S. & R. 
 (Pa.) 183; Hovey v. Page, 55 Me. 142; at 
 least to the extent of damage to property ; 
 Hegerich v. Keddie, 99 N. Y. 269, 1 N. E. 
 787, 52 Am. Rep. 25; Vitturn v. Gilman, 48 
 N. H. 416; Cravath v. Plympton, 13 Mass. 
 454. To the contrary are Smith v. Sherman, 
 4 Cush. (Mass.) 40S ; Wade v. Kalbfleisch, 58 
 N. Y. 282, 17 Am. Rep. 250, which, however, 
 was for breach of promise of marriage, and 
 therefore, sui generis; and on this ground it 
 is distinguished in Cregin v. R. Co., 75 N. Y. 
 192, 31 Am. Rep: 459, where an action by a 
 husband against a carrier for personal in- 
 juries to his wife was held to survive as for 
 a wrong to property rights or interests. Nor 
 will an action of breach of promise of mar- 
 riage survive against the executor of the 
 promisor where no special damage to prop- 
 erty is alleged; Chase v. Fitz, 132 Mass. 359;
 
 ACTIO PERSONALIS 
 
 123 
 
 ACTIO PERSONALIS 
 
 Kelley v. Riley, 106 Mass. 339, 8 Am. Rep. 
 336; Stebbins v. Palmer, 1 Pick. (.Mass.) 71, 
 11 Am. Dec. 146; Larocque v. Conbeim, 42 
 Misc. 613, 87 N. Y. Supp. 625; and this rule 
 is not changed by statutes providing that ac- 
 tions for personal injuries shall not abate; 
 Wade v. Kalbfleisch, 58 X. V. 282, 17 Am. 
 Rep. 250; Hayden v. Vreeland, 37 N. J. L. 
 372, 18 Am. Rep. 723; Smith v. Sherman, 4 
 Cush. (Mass.) 408; Hullett v. Baker, 101 
 Tenn. 689, 49 S. W. 757. This action docs 
 not survive the death of either party; French 
 rrill, 27 App. Div. 612, 50 N. V. Supp. 
 776. See Johnson v. Levy, 118 La. 447, 43 
 South. 46, 9 L. B. A. (N. S.) 1020, 118 Am. 
 St Rep. 378, 10 Ann. ('as. 722. 
 
 Nor does a right of action against a sur- 
 geon for malpractice survive his death ; Boor 
 v. Lowrey, 103 Ind. 468, 3 N. B. L51, 53 Am. 
 Rep. 510; Vittum v. Gilman, 48 X. II. 416; 
 ins v. French, 58 X. II. 532; Wolf v. 
 Wall, 40 Ohio St. Ill; Rest v. Vedder, 58 
 . Pr. (X. Y.) 1S7. 
 
 But a right of action for work and labor 
 survives against one who induced plaintiff 
 to marry and live with him on the false 
 representation that he was a widower ; Hig- 
 gins v. Breen, 9 Mo. 497; as also the right 
 to recover as for goods sold and delivered 
 for goods transferred in consideration of a 
 promise of marriage; Frazer v. Boss, GO 
 Ind. 1. And as to the right of an executor 
 or administrator to sue on a contract broken 
 in the testator's lifetime, where no damage 
 to the personal estate can be stated, see 2 
 Cr. M. & R. 588 ; 5 Tyrwh. 9S5. and the cases 
 there cited. The right to redeem survives; 
 Clark v. Seagraves, 186 Mass. 430, 71 X. E. 
 S13 ; and so does the statutory right of ac- 
 tion for money paid on purchase or sale of 
 securities with intention of no actual deliv- 
 ery ; Anderson v. Stock Exchange, 191 Mass. 
 117, 77 N. E. 706; and the statutory action 
 by a married woman for damages from sale 
 of liquor to her husband survives after the 
 death of the saloon keeper; Garrigan v. 
 Iluntimer, 20 S. D. 182, 105 X. W. 278. 
 
 Divorce proceedings being a personal ac- 
 tion, death of either of the parties before 
 decree abates the proceedings; Ewald v. 
 Corbett, 32 Cal. 493; Pearson v. Darrington, 
 32 Ala. 257; Danforth v. Danforth, 111 111. 
 236; Swan v. Harrison, 2 Cold. (Tenn 
 and the court will not require the executor 
 to become a party in order to answer the 
 wife's demand for additional allowance for 
 counsel fees; McCurley v. McCurley, 60 Md. 
 185, 45 Am. Rep. 717. But defendants death 
 after trial but before judgment, will not 
 abate the suit;' Danforth v. Danforth, 111 
 111. 236. 
 
 The fact whether or not the eslate of the 
 deceased has suffered loss or damage would 
 seem to be the criterion of the righl of the 
 personal representative to sue in another 
 class of cases, that is, where there is a 
 breach of an implied promise founded on a 
 
 • tort. For where the action, though in form 
 ex contractu, is founded upon a the 
 
 >i, it does not in general surviv. 
 executor. Thus, with respect to Injur! 
 fecting the life and health of the 
 all such as t of the unskilful !<■ 
 
 ■ ! practitioners; or the imprisonment 
 <>f the party occasioned by the nej 
 his attorney, no action, generally speaking, 
 '•an le sustained by the executor or admin- 
 : istrator on a breach of the implied pj 
 
 by the person employed to exhibit a proper 
 : portion of skill and attention; 
 being in substance actions for injuries to 
 rson; 2 M. & S. 415; 8 M. & W. 854; 
 Jenkins v. French, 58 X. II. 532. And it has 
 been held that for the breach of an implied 
 promise of an attorney to Investigate the ti- 
 tle to a freehold estate, the executor of the 
 purchaser cannot sue without stating that 
 the testator sustained some actual damag 
 to his estate; 4 J. B. Moure 532. But the 
 law on this point has been considerably modi- 
 fied by statute. 
 
 On the other hand, where the breach of 
 the implied promise has occasioned damage 
 to the personal estate of the deceased, 
 though it has been said that an action in 
 form ex contractu founded upon a tort 
 whereby damage has been occasioned to the 
 estate of the deceased, as debt against the 
 sheriff for an escape, does not survive at 
 common law; Neal v. Haygood, 1 Ga. 514 
 (though in this case the rule is altered in 
 that 'State by statute), yet the belter opinion 
 is that, if the execulor can show thai 
 age has accrued to the personal estate of the 
 deceased by the breach of an express or im- 
 plied promise, he may well sustain an action 
 at common law, to recover such dt 
 though the action is in some sort founded on 
 a tort; Wins. Exec. 676; citing, ;'. 
 2 Brod. & B. 102; 4 J. B. Moore 532. And 
 see 3 Woodd. Lect. 78. So. by waiving the 
 tort in a trespass, and going for the value of 
 the property, the action of assumpsit U 
 well for as against executors; Middleton's 
 Ex'rs v. Robinson, 1 Bay (S. C.) 58, 1 Am. 
 Dec. 596. 
 
 A claim for money paid as usury survives 
 against the estate of the person to whom it 
 was paid; Roberts v. Burton's Estati 27 
 Vt. 396; and so does an action against a jus- 
 tice of the peace on his official bond lor neg- 
 lect of duty; State v. Houston. 4 Blackt 
 (Ind.) 291. The liability of a i joint 
 
 debtor survives; Megrath v. Gilmore, 15 
 Wash. 558, 46 Pac. 1032; and the right of 
 action of a joint pa 
 :>:: Minn. 70, 100 X. W. 662; and of th 
 vivor of two joint parties to a cbnl 
 Northness v. Hillestad, 87 Minn. 301, 91 N. 
 W. 1112. 
 
 In an action on a contract comm< 
 against joint defendants, one of whom dies 
 pending the suit, the rule varies. In some 
 of the states the personal representatives of
 
 ACTIO PERSONALIS 
 
 124 
 
 ACTIO PERSONALIS 
 
 the deceased defendant may be added as par- 
 ties and the judgment taken against them 
 jointly with the survivors; Smith v. Crutch- 
 er, 27 Miss. 455; Bennett v. Spillars, 9 Tex. 
 519; Ewell v. Tye, TO S. W. 875, 25 Ky. L. 
 Rep. 976; Strause v. Braunreuter, 14 Pa. 
 Super. Ct 125. In others the English rule 
 obtains which requires judgment to be taken 
 against the survivors only; and this is con- 
 ceived to he the better rule, because the judg- 
 ment against the original defendants is de 
 bonis propriis, while that against the ex- 
 ecutors is de bonis testatoris; New Haven & 
 N. Co. v. Hayden, 119 Mass. 361. 
 
 The death of one of several defendants 
 works a severance and the plaintiff should 
 either dismiss as to all except the adminis- 
 trator, or proceed against the living de- 
 fendant only; Marcy v. Whallon, 115 111. 
 App. 435. 
 
 Where action is pending against two part- 
 ners, and the death of one is not suggested 
 before judgment, the judgment is a lien on 
 the partnership assets and binds the surviv- 
 ing partner personally; Sullivan v. Susong, 
 40 S. C. 154, 18 S. E. 268. On the death of 
 a joint owner of a mortgage debt, it sur- 
 vives at law to the remaining owners who 
 alone can sue for it; Cote v. Dequindre, 
 Walk. Ch. (Mich.) G4 ; Martin v. McReynolds, 
 6 Mich. 70. This is under a statute whereby 
 mortgages are excepted from the provision 
 that grants to two or more persons are to 
 be construed to create estates in common. In 
 a comment upon an English case where 1 the 
 personal representative was held to be a 
 necessary party, as he would in equity be 
 entitled to the decedent's share of the debt 
 when collected (1 Beav. 539), the Michigan 
 court says: "The reason given for the deci- 
 sion is true in point of fact, .but the conse- 
 quence deduced from it does not follow." 
 
 In an action commenced against directors, 
 where one dies after the suit commenced, 
 his executor need not be joined; Githers v. 
 Clark, 158 Pa. 616, 28 Atl. 232. On the death 
 of a joint guarantor, the action cannot be 
 revived against his representatives; Ameri- 
 can Copper Co*! v. Lowther, 25 Misc. 441, 54 
 N. T. Supp. 9G0, affirmed, and in a joint bond, 
 if one obligor die, the debt survives, but the 
 facts must be pleaded; Bentley v. Harman- 
 son's Ex'rs, 1 Wash. (Va.) 273. 
 
 Torts. — The ancient maxim which we are 
 discussing applies more peculiarly to cases 
 of tort. It was a principle of the common 
 law that, if an injury was done either to 
 the person or property of another for which 
 damages only could be recovered in satis- 
 faction, — where the declaration imputes a 
 tort done either to the person or property of 
 another, and the plea must be not guilty, — 
 the action died with the person to whom or 
 by whom the wrong w^as done. See Wms. 
 Exec. 6G8; 3 Bla. Com. 302; 1 Saund. 216, 
 217, n. (1); Viner, Abr. Executors 123; Comyn, 
 Dig. Administrator, B. 13. 
 
 But if the goods, etc., of the testator taken 
 away continue in specie in the hands of the 
 wrong-doer, it has long been decided that 
 replevin and detinue will lie for the executor 
 to recover hack the specific goods, etc. ; W. 
 Jones 173, 174; 1 Saund. 217; Trigg v. Con- 
 way, 1 Hempst 711, Fed. Cas. No. 14,173; 
 Noland v. Leech, 10 Ark. 504 ; or, in case 
 they are sold, an action for money had and 
 received will lie for the executor to recover 
 the value; 1 Saund. 217. And actions ess 
 delicto, where one has obtained the property 
 of another and converted it, survive to the 
 representatives of the injured party, as re- 
 plevin, trespass de bonis asport. But where 
 the wrong-doer acquired no gain, though the 
 other party has suffered loss, the death of 
 either party destroys the right of action; 
 Taylor v. Lowell, 3 Mass. 351, 3 Am. Dec. 
 141; U. S. v. Daniel, 6 How. (U. S.) 11, 12 
 L. Ed. 323; Middleton's Ex'rs v. Robinson, 
 1 Bay (S. C.) 58, 1 Am. Dec. 596; Mellen 
 v. Baldwin, 4 Mass. 480; McEvers v. Pitkin, 
 1 Root (Conn.) 216. 
 
 Successive innovations upon this rule of 
 the common law have been made by various 
 statutes with regard to actions which sur- 
 vive to executors and administrators. 
 
 The stat. 4 Ed. III. c. 7, gave a remedy to 
 executors for a trespass done to the per- 
 sonal estate of their testators, which was ex- 
 tended to executors of executors by the stat. 
 25 Ed. III. c. 5. But these statutes did not 
 include wrongs done to the person or freehold 
 of the testator or intestate ; Wms. Exec. 670. 
 By an equitable construction of these stat- 
 utes, an executor or administrator shall now 
 have the same actions for any injury done to 
 the personal estate of the testator in his 
 lifetime, whereby it has become less bene- 
 ficial to the executor or administrator, as 
 the deceased himself might have had, what- 
 ever the form of action may be; 1 Saund. 
 217 ; 1 Carr. & K. 271 ; W. Jones 173 ; 2 M. 
 & S. 416 ; 5 Co. 27 o; Cro. Car. 297. These 
 statutes are a recognized part of the com- 
 mon law in this country ; Hegerich v. Ked- 
 die, 99 N. Y. 2G0, 1 N. E. 787, 52 Am. Rep. 
 25 ; they are followed by many state statutes 
 and both these and the English statutes 
 have been liberally construed in favor of 
 survival in; both countries ; 7 East 134 ; Bak- 
 er's Adm'r v. Crandall, 7S Mo. 584, 47 Am. 
 Rep. 126; Ten Eyck v. Runk, 31 N. J. L. 428; 
 Withee v. Brooks, 65 Me. 18; Aldrich v. 
 Howard, 8 R. I. 125, 86 Am. Rep. 615 ; Fried 
 v. R. Co., 25 How. Pr. (N. Y.) 2S7 ; Nettles' 
 Ex'rs v. D'Oyley, 2 Brev. (S. C.) 27. And 
 the laws of the different spates, either by 
 express enactment or by having adopted the 
 English statutes, give a remedy to executors 
 in cases of injuries done to the personal prop- 
 erty of their testator in his lifetime. At 
 common law an action of replevin was abat- 
 ed by the death of the defendant, but not 
 by the death of the -plaintiff ; Potter v. Van 
 Vranken, 36 N. Y. 619, 627 ; Mellen v. Bald-
 
 ACTIO PERSONALIS 
 
 125 
 
 ACTIO PERSONALIS 
 
 win, 4 .Mass. 4S0 ; 1 And. 241 ; and see Reist 
 v. Heibrenner, 11 S. & R. (Pa.) 131 ; Keite v. 
 Boyd, 16 id. 300; but tbe effect of the death 
 of defendant is generally dependent upon the 
 construction of state statutes under which, 
 in most states, tbe action is saved, as In 
 Kingsbury's Ex'rs v. Lane's Ex'rs, 21 M<>. 
 115; McCrory v. Hamilton. 39 111. App. 490; 
 O'Neill v. Murry, 6 Dak. 107. 50 N. W. 619. 
 In Hambly v. Trott, Cowp. ."'.7, Lord Mansfield 
 held that in actions ex delicto, the liability 
 for the tort died with the person, but that if 
 thereby property was acquired, the personal 
 representatives were liable, and this prin- 
 ciple has beta extensively applied in connec- 
 tion with the stat. 4 Edw. III. both in the 
 enactment and construction of the state stat- 
 utes. The cases are collected and classified 
 in 53 Am. Rep. 525, note. 
 
 Trover for a conversion in the lifetime of 
 the testator may be brought by his executor; 
 Parrott's Adm'rs v. Dubignon, T. U. P. Charlt 
 (Ga.) 261; Eubanks v. Dobbs, 4 Ark. 173; 
 Nations v. Hawkins' Adm'rs, 11 Ala. 859. 
 But an executor cannot sue for expenses in- 
 curred by his testator in defending against 
 a groundless suit ; Doming v. Taylor, 1 Day 
 (Conn.) 285; nor in Alabama (under the Act 
 of 1826) for any injury done in the lifetime 
 of deceased: Garey v. Edwards, 15 Ala. 109; 
 nor in Vermont can he bring trespass on the 
 case, except to recover damages for an in- 
 jury to some specific property; Barrett's 
 Adm'r v. Copeland, 20 Vt. 244. And be can- 
 not bring case against a sheriff for a false 
 return in testator's action ; ibid. But he 
 may have case against the sheriff for not 
 keeping property attached, and delivering it 
 to the officer holding the execution in his 
 testator's suit; Barrett's Adm'r v. Copeland, 
 20 Vt. 214, n.; and case against the sheriff 
 for the default of his deputy in not paying 
 over to testator money collected in execu- 
 tion : Bellows v. Allen's Adm'r, 22 Vt. 10S. 
 An action in the nature of an action on the 
 case for injuries resulting from breach of 
 carrier's contract to transport a passenger 
 safely, survives to the personal representa- 
 tive: Winnegar's Adm'r v. Ry. Co., S3 Ky. 
 547, 4 S. W. 237. An executor may revive 
 an action against the sheriff for misfeasance 
 of his deputy, but not an action against the 
 deputy for his misfeasance; Valentine v. 
 Norton, 30 Me. 194. So, where the action is 
 merely penal, it does not survive; Estis' Ex'x 
 v. Lenox, 1 X. C. 292; as to recover penalties 
 for taking illegal fees by an officer from the 
 Intestate In his lifetime; Reed v. Cist, 7 S. & 
 R. (Pa.) 183. But in such case the adminis- 
 trator may recover back the excess paid 
 above the legal charge; ibid. 
 
 Under the common law an action to re- 
 cover a penalty or forfeiture dies with the 
 person; U. S. v. De Goer, 38 Fed. 80. The 
 action will not abate upon death of the re- 
 lator, if it is brought by the state upon an 
 
 official bond; Davenport v. \: S C 
 
 500, 4 s. E. 545. 
 
 The stat. 3 & 4 W. IV. c. ■; 
 remedy to executors, etc., for inju 
 in the lifetime of the 
 
 his real property, which case was not em- 
 braced in the Mat. Ed. III. This statute 
 introduced a material alteration in the 
 im actio personalis moritur cum ; 
 well in favor of executors and administra- 
 tors of the party injured as against the per- 
 sonal represent the wrongdoer, but 
 eta only injuries to personal and real 
 rty; Chit PL Parties to Actions in 
 form ex delicto. Similar statutory provi- 
 sions have been made in most of the - 
 Thus, trespass quare clausum fregit sur- 
 vives; Dobbs v. Gullidge, 20 N. C. 197; Mc- 
 Pherson v. Seguine, 14 X. C. 15.3; Kennerly 
 v. Wilson, 1 Md. 102; Winters v. MeGhee, 3 
 Sneed 12S; Musick v. Ry. Co., 114 M< 
 21 S. W. 491; Wilbur v. Gilmore, 21 Pick. 
 (Mass.) 250; even if action was begun after 
 the death of the injured party; Goodridge v. 
 Rogers, 22 Pick. (Mass.) 495 : Herbert v. Hen- 
 drickson, 3S N. J. L. 290; proceedings l 
 cover damages for injuries to land by over- 
 flowing; Ilowcott's Ex'rs v. Warren. 29 
 20; Upper Appomattox Co. v. Harding. 11 
 Gratt. (Va.) 1; contra. McLaughlin v. 
 sey, 1 Ilarr. & McII. (Md.) 224. BJt 
 the United States circuit court does not B 
 by death of plaintiff; Hatfield v. BushnelL 22 
 Vt. 659, Fed. Cas. No. 0,211. In Illinois the 
 statute law allows an action to executors 
 only for an injury to the personalty, or per- 
 sonal wrongs, leaving injuries to really as at 
 common law; Reed v. R. Co., 18 111. 
 
 Injuries to the person. In cases of inju- 
 ries to the person, whether by assault, 
 tery, false imprisonment, slander, negligence, 
 or otherwise, if either the party who r 
 ed or he who committed the injury die, tbe 
 maxim applies rigidly, and no action at com- 
 mon law can be supported either by or 
 against the executors or other personal rep- 
 resentatives; 3 Bla. Com. 302; 2 M. & S. 
 408; Mobile Life Ins. Co. v. Brame, 95 D. S. 
 : L. Ed. 5S0; Connecticut Mut. Lift- 
 Ins. Co. v. R. Co., 25 Conn. 265, 65 Am. 
 571; Indianapolis. P. & C. K. Co. v. K 
 Adm'r, 23 Ind. ISM; Hyatt v. Adam-. 16 
 Mich. ISO; Winnegar's Adm'r v. 1 
 Ky. 547, 4 S. W. 237; Roche v. Carroll, «; D. 
 C. 79; Thayer v. Dudley. 3 Mass. 296; and 
 the action is not impliedly Bayed by a 
 ute giving a right of action after deal 
 the personal representatives: Martin's Adm'r 
 v. R. Co.. 151 U. s. 673, 14 Sop. Ct B 
 L. Ed. 311. A case for the seduction of a 
 man's daughter; Brawncr v. Sterdevant, 9 
 Ga. 69; Cor libel: Wallers v. Nettlet 
 Cush. (Mass.) 544; for malicious prosecution; 
 Nettleton v. Dinehart, 5 Cush. (Mass.) 
 are instances of the general rule stated. The 
 death of one defendant, where partners are
 
 ACTIO PERSONALIS 
 
 120 
 
 ACTIO PERSONALIS 
 
 sued lor libel, does not abate tbe action, 
 even aside from tbe statute; Brown v. Kel- 
 logg, 182 Mass. 297, 65 N. E. 378. But in 
 one respect tbis rule bas been materially 
 modified in England by Lord Campbell's Act, 
 and in this country by like acts in many 
 states. These provide for the case where a 
 wrongful act, neglect, or default has caused 
 the death of the injured person, and the act 
 is of such a nature that tbe injured person, 
 had he lived, would have had an action 
 against the wrong-doer. In such cases the 
 wrong-doer is rendered liable, in general, not 
 to the executors or administrators of the de- 
 ceased, but to bis near relations, husband, 
 wife, parent or child. In the construction 
 given to these acts, the courts have held that 
 the measure of damages is in general the 
 pecuniary value of the life of the person 
 killed to the person bringing suit, and that 
 vindictive or exemplary damages by reason 
 of gross negligence on the part of the wrong- 
 doer are not allowable ; Sedg. Damages. 
 
 Most states have statutes founded on Lord 
 Campbell's Act. In some states, by statute, 
 an action may be brought against a city or 
 town for damages to the person of deceased 
 occasioned by an assault by another's dogs ; 
 Wilkins v. Wainwright, 173 Mass. 212, 53 N. 
 E. 397; or by reason of a defect in a highway; 
 Demond v. City of Boston, 7 Gray (Mass..) 
 544; Roberts v. City of Detroit, 102 Mich. 
 64, 60 N. W. 450, 27 L. R. A. 572 ; but it is 
 otherwise in South Carolina; All v. Barn- 
 well County, 29 S. C. 161, 7 S. E. 58. In 
 Ohio it is considered to be an action "for a 
 nuisance" and abates at the death of the 
 party injured; Village of Cardington v. 
 Fredericks, 46 Ohio 442, 21 N. E. 766. But 
 where the death, caused by a railway col- 
 lision, was instantaneous, no action can be 
 maintained under the statute of Massachu- 
 setts; for the statute supposes the party 
 deceased to have been once entitled to an 
 action for the injury, and either to have j 
 commenced the action and subsequently died, 
 or, being entitled to bring it, to have died 
 before exercising the right; Kearney v. 
 R. Co., 9 Cush. (Mass.) 108. Where a per- 
 son during his lifetime commenced an ac- 
 tion for damages for injuries, and the action 
 was pending at his death, an action to re- 
 cover damages for his death by his repre- 
 sentative was barred; but such representa- 
 tives had the right to continue the action 
 commenced by the decedent in his lifetime; 
 Edwards v. Gimbel, 202 Pa. 30, 51 Atl. 357 
 But it has been held bat an administrator 
 cannot continue an action brought by the 
 decedent in his lifetime, as the only action 
 maintainable is by the administrator under 
 the statute for the benefit of the heirs ; Mar- 
 tin v. R. Co., 58 Kan. 475, 49 Pac. 605. But 
 the accruing of the right of action does not 
 depend upon intelligence, consciousness, or 
 mental capacity of any kind on the part of 
 the person injured ; Hollenbeck v. R, Co., 9 | 
 
 Cush. (Mass.) 478. By the removal of a case 
 to tbe Federal Court, tbe right to revive an 
 action for personal injuries, upon the death 
 of the plaintiff, is not lost; In re Connaway, 
 17S U. S. 421, 20 Sup. Ct. 951, 44 L. Ed. 1134 ; 
 Baltimore & Ohio R. Co. v. Joy, 173 U. S. 
 226, 19 Sup. Ct. 3S7, 43 L. Ed. 677. 
 
 In some of the states the statutes vest 
 the right of action in the personal representa- 
 tives, but the damages recovered accrue to 
 the benefit of tbe widow and next of kin ; 
 City of Chicago v. Major, 18 111. 349, 68 Am. 
 Dec. 553; Whiton v. R~ Co., 21 Wis. 305; 
 Needham v. R. Co., 3S Vt. 294. And, by act 
 of May 30, 1908, provision is made for com- 
 pensation to government employes for in- 
 juries, or, in case of death, to the widow and 
 children ; Comp. Laws (1911) 468. 
 
 Damages may be recovered by the parents 
 in an action for death of minor child; Balti- 
 more & O. R. Co. v. State, 24 Md. 271; Ihl 
 v. R. Co., 47 N. Y. 317, 7 Am. Rep. 450; Ewen 
 v. R. Co., 38 Wis. 613; Pennsylvania R. Co. 
 v. Bantom, 54 Pa. 495 ; but there must have 
 been a prospect of some pecuniary benefit 
 had the child lived ; 11 Q. B. D. 160 ; Rains 
 v. R. Co., 71 Mo. 164, 36 Am. Rep. 459; 3 
 H. & N. 211. Where a father and daughter 
 were injured by the same accident, and he 
 died within an hour, held that the cause of 
 action in him for his daughter's death did 
 not survive to the mother, no action having 
 been brought by him ; King v. R, Co., 126 
 ; Ga. 794, 55 S. E. 965, 8 L. R. A. (N. S.) 544. 
 Actions against the executors or adminis- 
 trators of the wrong-doer. The common-law 
 principle was that if an injury was done ei- 
 ther to the person or property of another, 
 for which damages only could be recovered 
 in satisfaction, the action died with the per- 
 son by whom the wrong was committed ; 1 
 Saund. 216 o, note (1); McLaughlin v. Dor- 
 sey, 1 H. & McH. (Md.) 224. And where the 
 cause of action is founded upon any mal- 
 feasance or misfeasance, is a tort, or arises 
 ex delicto, such as trespass for taking goods, 
 etc., trover, false imprisonment, assault and 
 battery, slander, deceit, diverting a water- 
 course, obstructing lights, and many other 
 cases of the like kind, where the declaration 
 imputes a tort done either to the person or 
 the property of another, and the plea must 
 be not guilty, the rule of the common law is 
 actio personalis moritur cum persona; and 
 if the person by whom the injury was com- 
 mitted die, no action of that kind can be 
 brought against his executor or administra- 
 tor. But now in England the stat. 3 & 4 W. 
 IV. c. 42, § 2, authorizes an action of tres- 
 pass, or trespass on the case, for an injury 
 committed by deceased in respect to prop- 
 erty real or personal of another. And sim- 
 ilar provisions are in force in most of the 
 states of this country- Thus, in Alabama, 
 by statute, trover may be maintained against 
 an executor for a conversion by his testator ; 
 Nations y. Hawkins' Adni'rs, 11 Ala. 859.
 
 ACTIO PERSONALIS 
 
 127 
 
 ACTIO PERSONALIS 
 
 So in New Jersey, Terhune v. Bray's Ex'rs, 
 16 N. J. L. 54 ; Georgia, Woods v. Howell, 17 
 Ga. 495; and North Carolina; Weare v. 
 Burge, 32 N. C. 169. 
 
 In Virginia, by statute, detinue already 
 commenced against the wrongdoer survives 
 against his executor, if the chattel actually 
 came into the executor's possession ; other- 
 wise not; Alleu's Ex'r v. Harlan's Adni'r, 6 
 Leigh (Va.) 42, 29 Am. Dec. 205; Catletl's 
 Ex'r v. Russell, 6 Leigh (Va.) 3-11. So in 
 Kentucky, Gentry's Adm'r v. McKehen, 5 
 Dana (Ky.) 34. Replevin in Missouri does 
 not abate on the death of defendant ; Kins- 
 bury's Ex'rs v. Lane's Ex'r, 21 Mo. 115 ; nor 
 does an action on a replevin bond in Dela- 
 ware, Waplea v. Adkins, 5 Harr. (Del.) 3S1. 
 It has, indeed, been said that where the 
 wrongdoer has secured no benefit to himself 
 at the expense of the sufferer, the cause of 
 action does not survive, but that where, by 
 means of the offence, property is acquired 
 which benefits the testator, then an action for 
 the value of the property survives against the 
 executor ; U. S. v. Daniel, 6 How. (U. S.) 11, 
 12 L. Ed. 323 ; Coburn v. Ansart, 3 Mass. 
 321 ; Troup v. Smith's Ex'r, 20 Johns. (N. Y.) 
 43; McEvers v. Pitkin, 1 Root (Conn.) 216; 
 Cummins v. Cummins, S N. J. Eq. 173; Mid- 
 dleton's Ex'rs v. Robinson, 1 Bay (S. C.) 58, 
 1 Am. Dec. 596; and that where the wrong- 
 doer has acquired gain by his wrong, the in- 
 jured party may waive the tort and bring an 
 action ex contractu against the representa- 
 tives to recover compensation ; Jones v. Hoar, 
 5 Pick. (Mass.) 2S5 ; Cummins v. Cummins, 
 8 N. J. Eq. 173. 
 
 But this rule, that the wrongdoer must 
 have acquired a gain by his act in order that 
 the cause of action may survive against 
 his representatives, is not universal. Thus, 
 though formerly in New York an action 
 would not lie for a fraud of deceased which 
 did not benefit the assets, yet it was other- 
 wise for his fraudulent performance of a 
 contract; Troup v. Smith's Ex'r, 20 Johns. 
 (N. Y.) 43 ; and now the statute of that state 
 gives an action against the executor for every 
 injury done by the testator, whether by force 
 or negligence, to the property of another ; El- 
 der v. Bogardus. Lalor's Supp. (N. Y.) 116; 
 as for fraudulent representations by the de- 
 ceased in the sale of land ; Haight v. Hayt, 
 19 N. Y. 464 ; or wasting, destroying, taking, 
 or carrying away personal property ; Snider 
 v. Croy, 2 Johns. (N. Y.) 227. Cases in which 
 the survival of actions is fully considered 
 are : Right of action against a sheriff does 
 survive; Lynn's Adm'r v. Sisk, 9 B. Moiir. 
 135; Paine v. Ulmer, 7 Mass. 317; Cravath 
 y. Plympton, 13 Mass. 454 (but not one 
 against a deputy sheriff ; id.) ; one for a 
 false return of execution ; Jewett v. Weaver, 
 10 Mo. 234 (but not one against a consta- 
 ble for unnecessary assault in an arrest; 
 Melvin v. Evans, 48 Mo. App. 421) ; case 
 for injury to property; Jones v. Vanzaudt, 
 
 4 McLean, 599, Fed. Cas. No. 7 
 pass; Hamilton v. Jeffries, 15 Mo. 
 (both under statutes); suit against 
 for criminal act of slave; Phillips v. : 
 er's Adm'rs, 2" Mo. 401 ; deceit in 
 of chattels; 1 Car. L. Rev. 529; the n 
 by petition for damages by overfio 
 lands; Raleigh & G. R. Co. v. Jones. 23 N. C. 
 24; against an attorney for neglect ; M 
 v. Wilson, 24 Pa. 11!: 3 star:-. 154; 1 D. & 
 R. 30 ; damages by reason of false represen- 
 tations as to value of laud; Hen 
 Ilenshall. 54 Fed. 320, 4 C. C. A. 357. I 
 in which the ri<dit of action was held not to 
 survive the death of the wrongdoer or de- 
 fendant are: For torts unconnected with con- 
 tract ; Watson v. Loop, 12 Tex. 11; tres- 
 pass; O'Conner v. Corbitt, 3 Cal. 370; ac- 
 tions for malicious prosecution; Couly v. 
 Conly, 121 Mass. 550 ; whether brought in 
 the lifetime of the wrongdoer or not; Jones 
 v. Littlefield, 3 Yerg. (Tenn.) 133; McDer- 
 rnott v. Doyle, 17 Mo. 3G2 ; trespass for 
 mesne profits; Harker v. Whitaker, 5 Watts 
 (Pa.) 474; Means v. Presbyterian Church, 3 
 Pa. 93; Burgess v. Gates. 20 Vt. 326; In re 
 Renwick's Estate, 2 Bradf. Sur. (N. Y.) 80; 
 (but the representative may be sued on con- 
 tract ; id.) ; contra, Molton v. Munford's 
 Adm'r, 10 N. C. 490; Burgess v. Ga1 
 Vt. 326 (by statute) ; case for false represen- 
 tation ; Henshaw v. Miller, 17 How. <i 
 212, 15 L. Ed. 222. Trespass for crim. con., 
 where defendant dies pending the suit, does 
 not survive against his personal representa- 
 tives ; Clarke v. McClelland, 9 Pa. 12S. Where 
 an action of trespass is brought by a widow 
 for killing her husband, it abates with death 
 of defendant ; Weiss v. Hunsicker, 14 Pa. Co. 
 Ct 398. 
 
 Where the intestate" had falsely pretended 
 that he was divorced from his wife, w 
 by another was induced to marry him, the 
 latter cannot maintain an action against his 
 personal representatives; Grim v. Carr's 
 Adm'rs, 31 Pa. 533. Case for nuisance does 
 not lie against executors of a wrongdoer; 
 Hawkins' Ex'rs v. Glass, 1 Bibb. (Ky.) 246; 
 Knox v. Sterling, 73 111. 214; nor for fraud 
 in the exchange of horses ; Coker v. Crozier, 
 5 Ala. 369; nor, under the statute of Vir- 
 ginia, for fraudulently recommending a per- 
 son as worthy of credit; Henshaw v. Miller, 
 17 How. (U. *S.) 212, 15 L. Ed. 222; nor for 
 negligence of a constable, whereby he 
 to make the money on an execution; I 
 v. Barclay, 3 Ala. 361 ; nor for misfeasance of 
 constable; Gent v. Gray. 29 Me. 402; nor 
 against the personal representatives of a 
 sheriff for an escape, or for taking insuffi- 
 cient bail bond; Cunningham v. Jaqu< 
 N. J. L. 42; nor against the administrators of 
 the marshal for a false return of execution. 
 or imperfect and insufficient entries thi 
 U. S. v. Daniel, 6 How. (U. S.) 11, 12 L. Ed. 
 323 ; nor does debt for an escape survive 
 against the sheriff's executors; Martin v.
 
 ACTIO PERSONALIS 
 
 12S 
 
 ACTIO DE TIGXO JUNCTO 
 
 Bradley, 1 Caines (N. Y.) 1121; alitor in 
 ruin, by statute; Neal v. Haygood, 1 Ga. 
 514. An action against the sheriff to recover 
 penalties for his failure to return process 
 does not survive against his executors; Ma- 
 son v. Dallew, 35 N. C. 483 ; nor does au ac- 
 tion lie against the representatives of a de- 
 ceased postmaster for money feloniously tak- 
 en out of letters by his clerk; Franklin v. 
 Low, 1 Johns. (N. Y.) 396. See Abatement. 
 
 ACTIO IN PERSONAM (Lat. an action 
 against the person). 
 
 A personal action. 
 
 This is the term in use In the civil law to denote 
 the actions which in the common law are called 
 personal. In modern usage it is applied in English 
 and American law to those suits in admiralty which 
 are directed against the person of the defendant, as 
 distinguished from those in rem which are directed 
 against the specific thing from which (or rather the 
 proceeds of the sale of which) the complainant ex- 
 pects and claims a right to derive satisfaction for 
 the injury done to him; 2 Pars. Mar. Law. 663. 
 
 ACTIO PIGNERATITIA. An action for 
 a thing pledged after payment of the debt. 
 Hunter, Rom. L. 448. 
 
 ACTIO PR/ESCRIPTIS VERBIS. A form 
 of action which derived its force from contin- 
 ued usage or the rcsponsa prudentium, and 
 was founded on the unwritten law. 1 
 Spence, Eq. Jur. 212. 
 
 The distinction between this action and an actio 
 in factum is said to be, that the latter was founded 
 not on usage or the unwritten law, but by analogy 
 to or on the equity of some subsisting law; 1 
 Spence, Eq. Jur. 212. 
 
 ACTIO REALIS (Lat). A real action. 
 The proper term in the civil law was Rei 
 Vindicatio; Inst. 4. 6. 3. 
 
 ACTIO REDHIBITORY. An action to 
 compel a vendor to take back the thing sold 
 and return the price paid. See Redhibitoby 
 Actions. 
 
 ACTIO IN REM. An action against the 
 thing. See Actio in Personam ; Actio. 
 
 ACTIO RESCISSORIA. An action for re- 
 scinding a title acquired by prescription in a 
 case where the party bringing the action was 
 entitled to exemption from the operation of 
 the prescription. 
 
 ACTIO PRO SOCIO. An action by which 
 either partner could compel his co-partners 
 to perform the partnership contract. Story, 
 Partn., Bennett ed. § 352 ; Pothier, Contr. de 
 Societe, n. 34. 
 
 ACTIO EX STIPULATU. An action 
 brought to enforce a stipulation. 
 
 ACTIO STRICTI JURIS (Lat. an action 
 of strict right). An action in which the 
 judge followed the formula that was sent to 
 him closely, administered such relief only as 
 that warranted, and admitted such claims 
 as were distinctly set forth by the pleadings 
 of the parties. 1 Speuce, Eq. Jur. 218. 
 
 ACTIO DE TIGNO JUNCTO, An action 
 by the owner of material built by another 
 
 into his building. If so used in good faith 
 double their value could be recovered; if 
 in bad faith, the owner could recover suit- 
 able damage for the wrong, and recover 
 the property when the building came down- 
 So. African Leg. Diet. 
 
 ACTIO UTILIS. An action for the bene- 
 fit of those who had the beneficial use of 
 property, but not the legal title; an equita- 
 ble action. 1 Spence, Eq. Jur. 214. 
 
 It was subsequently extended to Include tany 
 other instances where a party was equitably enti- 
 tled to relief, although he did not come within the 
 strict letter of the law and the formulae appropriate 
 thereto. 
 
 ACTIO VENDITI. Where a person selling 
 seeks to secure the performance of a special 
 obligation found in a contract of sale or to 
 compel the buyer to pay the price through 
 an action. Hunter, Roman Law 332. 
 
 ACTIO VULGARIS. A legal action; a 
 common action. Sometimes used for actio 
 dirccta. 1 Mackeldey, Civ. L. ISO. 
 
 ACTION (Lat. agere, to do). A doing of 
 something; something done. 
 
 The formal demand of one's right from 
 another person, made and insisted on in a 
 court of justice. In a quite common sense, 
 action includes all the formal proceedings in 
 a court of justice attendant upon the de- 
 mand of a right made by one person of an- 
 other in such court, including an adjudica- 
 tion upon the right and its enforcement or 
 denial by the court. 
 
 In the Institutes of Justinian an action is defined 
 as jus perscquendi in judicio quod sibi debetur (the 
 right of pursuing in a judicial tribunal what is due 
 one's self); Inst. 4. 6. In the Digest, however, 
 where the signification of the word is expressly 
 treated of, it is said, Actio generaliter sumitur : vel 
 pro ipso jure quod quis habet persequendi in judicio 
 quod suum est sibive debetur; vel pro hac ipsa per- 
 secution seu juris exercitio (Action in general is 
 taken either as that right which each one has of 
 pursuing in a judicial tribunal his own or what is 
 due him; or as the pursuit itself or exercise of the 
 right) ; Dig. 50. 16. 16. Action was also said con- 
 tinere formam agendi (to include the form of pro- 
 ceeding); Dig. 1. 2. 10. 
 
 This definition of action has been adopted by Tay- 
 lor (Civ. Law, p. 50). These forms were prescribed 
 by the praetors originally, and were to be very 
 strictly followed. The actions to which they applied 
 were said to be stricti juris, and the slightest vari- 
 ation from the form prescribed was fatal. They 
 were first reduced to a system by Appius Claudius, 
 and were surreptitiously published by his clerk, 
 Cneius Flavius. The publication was so pleasing to 
 the people that Flavius was made a tribune of the 
 people, a senator, and a curule edile (a somewhat 
 more magnificent return than is apt to await the 
 labors of the editor of a modern book of forms) ; 
 Dig. 1. 2*5. 
 
 These forms were very minute, and included the 
 form for pronouncing the decision. See Actio. 
 
 In modern law the signification of the right of 
 pursuing, etc., has been generally dropped, though 
 it is recognized by Bracton, 98 b ; Coke, 2d Inst. 40; 
 3 Bla. Com. 116 ; while the two latter senses of the 
 exercise of the right and the means or method of 
 its exercise are still found. 
 
 The vital idea of an action is a proceeding on the 
 part of one person as actor against another, for the 
 infringement of some right of the first, before a
 
 ACTION 
 
 129 
 
 ACTION 
 
 court of justice, In the manner prescribed by the 
 court or the law. 
 
 Subordinate to this is now connected in a quite 
 common use, the idea of the answer of the defend- 
 ant or person proceeded against; the adducing evi- 
 dence by each party to sustain his position ; the 
 adjudication of the court upon the right of the 
 plaintiff; and the means taken to enforce the right 
 or recompense the wrong done, in case the right is 
 established and shown to have been injuriously af- 
 fected. 
 
 Actions are to be distinguished from those pro- 
 ceedings, such as writ of error, scire facias, man- 
 damus, and the like, where, under the form of pro- 
 ceedings, the court, and not the plaintiff, appears to 
 be the actor ; Com. v. Commissioners of Lancaster 
 County, 6 Dinn. (Pa.) 9. And the term is not regu- 
 larly applied, it would seem, to proceedings in a 
 court of equity; Allen v. Partlow, 3 S. C. 417; Ul- 
 shafcr v. Stewart, 71 Pa. 170. 
 
 In the Civil Law. 
 
 Civil Actions. — Those personal actions 
 which are instituted to compel payments or 
 do some other thing purely civil. Pothier, 
 Intrnd. Gen. aux Coutumcs 110. 
 
 Criminal Actions. — Those personal actions 
 in which the plaintiff asks reparation for the 
 commission of some tort or injury which he 
 or those who belong to him have sustained. 
 
 Mixed Actions are those which partake of 
 the nature of both real and personal actions ; 
 as, actions of partition, actions to recover 
 property and damages. Just. Inst. 4, 6, 18- 
 20; Domat, Supp. des Lois Civiles liv. 4, tit. 
 1, n. 4. 
 
 Mixed Personal Actions are those which 
 partake of both a civil and a criminal char- 
 acter. 
 
 Personal Actions are those in which one 
 person (actor-) sues another as defendant 
 (reus) in respect of some obligation which 
 he is under to the actor, either ex contractu, 
 or ex delicto, to perform some act or make 
 some compensation. 
 
 Real Actions. — Those by which a person 
 seeks to recover his property which is in 
 the possession of another. 
 
 In the Common Law. 
 
 The action properly is said to terminate 
 at judgment: Co. Litt. 2S9a; Rolle, Abr. 
 291; 3 Bla. Com. 116. 
 
 Civil Actions. — Those actions which have 
 for their object the recovery of private or 
 civil rights, or of compensation for their 
 infraction. 
 
 Criminal Actions. — Those actions prosecut- 
 ed in a court of justice, in the name of the 
 government, against one or more individuals 
 accused of a crime. See 1 Chitty, Crim. 
 Law. 
 
 Local Actions. — Those civil actions which 
 can be brought only in the county or other 
 territorial jurisdiction in which the cause 
 of action arose. See Local Action. 
 
 Mixed Actions. — Those which partake of 
 the nature of both real and personal actions. 
 
 Personal Actions. — Those civil actions 
 which are brought for the recovery of per- 
 sonal property, for the enforcement of some 
 contract, or to recover damages for the coru- 
 Bouv.— 9 
 
 mission of an injury to the person or prop 
 erty. See Personal Action. 
 
 Real Actions. — Those brought for the spe- 
 cific recovery of lands, tenements, or her- 
 editaments. Steph. PL 3. See Real A 
 
 Transitory Actions. — Those civil a 
 the cause of which might well have 
 in one place or county as well aa another. 
 See Transitory Action. 
 
 ACTION OF BOOK DEBT. A form of 
 action in Connecticut and Vermont for the 
 recovery of claims, such as are usually evi- 
 denced by a book account Bradley v. Good- 
 year, 1 Day (Conn.) 105; Smith v. <;illiert, 
 4 Day (Conn.) L05; Newton v. Biggins, 2 
 Vt. 366. 
 
 ACTION ON THE CASE. This was a 
 remedy given by the common law, but it ap- 
 pears to have existed only in a limited form 
 and to a certain extent until the statute of 
 Westminster 2d. In its most comprehensive 
 signification it includes assumpsit as well as 
 an action in form ex delicto; at pi 
 when it is mentioned it is usually understood 
 to mean an action in form ex delicto. 
 
 It is founded on the common law or upon 
 acts of Parliament, and lies generally to re- 
 cover damages for torts not committed with 
 force, actual or implied ; or having been oc- 
 casioned by force where the matter at" 
 was not tangible, or the injury was not im- 
 mediate but consequential ; or where the in- 
 terest in the property was only in rev. 
 in all of which cases trespass is not sustain- 
 able ; 1 Chit PI. 132. See Case ; Assumpsit. 
 
 ACTION REDHIBITORY. See Rediiiii- 
 tory Action. 
 
 ACTION RESCISSORY. See Rescissory 
 
 Actions. 
 
 ACTIONABLE. For which an action will 
 lie. 3 Bla. Com. 23. 
 
 ACTIONARY. A commercial term used in 
 Europe to denote a proprietor of shares or 
 actions in a joint stock company. 
 
 ACTIONES NOMINATE (Lat named ac- 
 tions) . 
 
 In English Law. Those writs for which 
 there were precedents in the English Chan- 
 cery prior to the statute 13 Edw. I. (Westm. 
 2d) c. 34. 
 
 Prior to this statute, the clerks would is- 
 sue no writs except in such actions. Steph. 
 PI. 8; Barnet v. Ihrie, 17 S. & R. (Pa.) 195. 
 See Case ; Action. 
 
 ACTIONS (Fr.). Shares of corporate 
 
 stock. 
 
 ACTIONS ORDINARY. In Scotch Law. 
 All actions which are not rescissory. Ersk. 
 Inst 4, 1, 18. 
 
 ACTIVE TRUST. See Trust. 
 
 ACTON BURNELL. An ancient English 
 statute, so called because enacted by a par-
 
 ACTON BURNT! XL, 
 
 130 
 
 ACTUAL 
 
 liament held at the village of Acton Burnell. 
 11 Edw. I. 
 
 It is otherwise known as statutum mercatorum or 
 de mercatoribus, the statute of the merchants. It 
 was a statute for the collection of debts, the earliest 
 of its class, being enacted in 12S3. 
 
 A further statute for the same object, and known 
 as De Mercatoribus, was enacted 13 Edw. I. (c. 3.). 
 See Statute Merchant. 
 
 ACTOR (Lat. agcre) . In Civil Law. A 
 patron, pleader, or advocate. Du Cange; 
 Cowell ; Spelman. 
 
 Actor ecclesice — An advocate for a church ; one 
 who protects the temporal interests of a church. 
 Actor villce was the steward or head-bailiff of a 
 town or village. Cowell. 
 
 One who takes care of his lord's lands. 
 Du Cange. 
 
 A guardian or tutor. One who transacts 
 the business of his lord or principal ; nearly 
 synonymous with agent, which comes from 
 the same word. 
 
 The word has a variety of closely-related mean- 
 ings, very nearly corresponding with manager. 
 Thus, actor domincB, manager of his master's farm; 
 actor ecclesicB, manager of church property ; adores 
 provinciarum, tax-gatherers, treasurers, and man- 
 agers of the public debt. 
 
 A plaintiff; contrasted with reus, the de- 
 fendant A proctor in civil courts or causes. 
 Adores regis, those who claimed money of 
 the king. Du Cange, Actor; Spelman, Gloss. ; 
 Cowell. 
 
 ACTRIX (Lat). A female plaintiff. Cal- 
 vinus, Lex. 
 
 ACTS OF COURT. Legal memoranda 
 made in the admiralty courts in England, 
 in the nature of pleas. 
 
 For example, the English court of admi- 
 ralty disregards all tenders except those 
 formally made by acts of court; Abbott, 
 Shipp. 403; Dunlop, Adm. Pr. 104, 105; 4 
 C. Rob. Adm. 103; 1 Hagg. Adm. 157. 
 
 ACTS OF SEDERUNT. In Scotch Law. 
 Ordinances for regulating the forms of pro- 
 ceeding, before the court of session, in the 
 administration of justice, made by the judg- 
 es, who have the power by virtue of a Scotch 
 Act of Parliament passed in 1540. Erskine, 
 Pract. book 1, tit. 1, § 14. 
 
 ACTUAL. Real, in opposition to construc- 
 tive or speculative, something "existing in 
 act;" State v. Wells, 31 Conn. 213; real as 
 opposed to nominal ; Astor v. Merritt, 111 U. 
 S. 202, 4 Sup. Ct 413, 28 L. Ed. 401. Wear- 
 ing apparel "in actual use" is not confined to 
 what is worn at the time or what has been 
 worn, but includes what is set apart to be 
 used as a part of one's wardrobe; id., where 
 the phrase is carefully examined and defined. 
 
 It is used as a legal term in contradistinc- 
 tion to virtual or constructive as of posses- 
 sion or occupation; Cleveland v. Crawford, 
 7 Hun (N. Y.) 616; or an actual settler, 
 which implies actual residence; Mclntyre v. 
 Sherwood, 82 Cal. 139, 22 Pac. 937. An ac- 
 tual seizure means nothing more than 
 
 seizure, since there was no fiction of con- 
 structive seizure before the act; L. R. 6 
 Exch. 203. 
 
 Actually is opposed to seemingly, pretend- 
 edly, or feignedly, as actually engaged in 
 fanning means really, truly, in fact; In re 
 Strawbridge & Mays, 39 Ala. 367. 
 
 ACTUAL CASH VALUE. The term means 
 the sum of money the insured goods would 
 have brought for cash, at the market price, 
 at the time when, and place where, they were 
 destroyed by fire. Mack v. Ins. Co., 4 Fed. 
 59. See Insubance. 
 
 ACTUAL COST. The true and real price 
 paid for goods upon a genuine bona fide pur- 
 chase. Alfonso v. U. S., 2 Sto. 421, Fed. Cas. 
 No. 188. Money actually paid out. Lexing- 
 ton & W. R. Co. v. R. Co., 9 Gray (Mass.) 
 226. It is said not to include interest on 
 capital during construction ; [1906] A. C. 368 ; 
 nor "wasted expenditure" such as that on a 
 condemned culvert, under a government con- 
 tract; 20 S. C. 133, 416 (South African). 
 Under a contract to supply electric light to 
 a municipality, for which it was to pay such 
 sum as would yield a return of 10 per cent, 
 on the "actual cost of generating the light," 
 it was held that this did not include inter- 
 est on capital, but did include depreciation 
 of plant and rents, taxes and insurance; 
 [1908] A. C. 241. 
 
 ACTUAL DAMAGES. The damages 
 awarded for a loss or injury actually sus- 
 tained; in contradistinction from damages 
 implied by law, and from those awarded by 
 way of punishment. See Damages. 
 
 ACTUAL DELIVERY. It is held common- 
 ly to apply to the ceding of the corporal 
 possession by the seller, and the actual ap- 
 prehension of corporal possession by the buy- 
 er, or by some person authorized by him to 
 receive the goods as his representative for 
 the purpose of custody or disposal, but not 
 for mere conveyance. Bolin v. Huffnagle, 1 
 Rawle (Pa.) 19. See Delivery. 
 
 ACTUARIUS (Lat). One who drew the 
 acts or statutes. 
 
 One who wrote in brief the public acts. 
 
 An officer who had charge of the public 
 baths ; an officer who received the money for 
 the soldiers, and distributed it among them ; 
 a notary. 
 
 An actor, which see. Du Cange. 
 
 ACTUARY. The manager of a joint stock 
 company, particularly an insurance company. 
 
 An officer of a mercantile or insurance 
 company skilled in financial calculations, es- 
 pecially respecting such subjects as the ex- 
 pectancy of the duration of life. 
 
 A clerk, in some corporations vested with 
 various powers. 
 
 In Ecclesiastical Law. A clerk who regis- 
 ters the acts and constitutions of the convo- 
 cation.
 
 ACTUM 
 
 131 
 
 AD DAMNUM 
 
 ACTUM (Lat. agere). A deed; something 
 done. 
 
 Datum relates to the time of the delivery of the 
 Instrument; actum, the time of making it ; factum, 
 the thing made. Gestum, denotes a thing done 
 without writing ; actum, a thing done In writing. 
 See Du Cange; Actus. 
 
 ACTUS (Lat. agere, to do; actus, done). 
 
 In Civil Law. A thing done. See Actum. 
 A servitude which carried the right of driv- 
 ing animals and vehicles across the lands of 
 another. 
 
 It included also the iter, or right of pass- 
 ing across on foot or on horseback. 
 
 In English Law. An act of parliament 8 
 Coke 40. 
 
 A foot and horse way. Co. Litt. 56 a. 
 
 AD (Lat). At; by; for; near; on ac- 
 count of ; to ; until ; upon ; with relation to 
 or concerning. 
 
 AD ABUNDANTIOREM CAUTELAM 
 
 (Lat.). For greater caution. 
 
 AD ALIUD EXAMEN (Lat). To another 
 tribunal. Calvinus, Lex. 
 
 AD ASSISAM CAPIENDAM. To take an 
 assize. Bract 110 6. 
 
 AD AUDIENDAM CONSI D ERATI ON EM 
 C U R I /E. To hear the judgment of the court. 
 Bract 3S3 b. 
 
 AD AUDIENDUM ET DETERMINAN- 
 DUM. To hear and determine. 4 Bla. Com. 
 278. 
 
 AD BARRAM EVOCATUS. Called to the 
 bar. 1 Ld. Raym. 59. 
 
 AD CAMPI PARTEM. For a share of the 
 land. Fleta, II, c. 36, § 4. 
 
 AD CAPIENDAS ASSISAS. To try writs 
 of assize. 3 Bla. Com. 352. 
 
 AD COLLIGENDUM. For collecting; as 
 an administrator or trustee ad colligendum. 
 2 Kent 414. 
 
 AD COMMUNE NOCUMENTUM. To the 
 
 common nuisance. Broom & H. Com. 196. 
 
 AD COMMUNEM LEGEM. At common 
 law. 2 Eden 39. 
 
 AD COMPARENDUM. To appear. Cro. 
 Jac. 67. 
 
 AD CULPAM. Until misbehavior. 
 
 AD CURIAM. At court 1 Salk. 195; 1 
 Ld. Raym. 638. 
 
 AD CUSTAGIA. At the costs. Toullier; 
 Cowell ; Whishaw. 
 
 AD CUSTUM. 
 
 Bla. Com. 314. 
 
 At the cost 1 Sharsw. 
 
 AD DAMNUM (Lat). To the damage. 
 The technical name of that part of the dec- 
 laration or statement of claim which con- 
 tains a statement of the amount of the plain- 
 tiff's injury. The plaintiff cannot recover 
 
 greater damages than he has laid in the ad 
 damnum; 2 Greenl. Ev. § 260. The a 
 claimed may be amended by the court on 
 motion. In Bierce v. Waterhouse, 219 
 :;_", ';i Sup. Ct 241, 55 L. Ed. 237, it 
 held that in replevin, the ad damnum 
 be increased to conform to the proofs with- 
 out discharging the sureties. 
 
 AD DIEM. At the day. Ad alium diem. 
 At another day. Y. B. 7 Hen. VI, 13. Ad 
 certum diem. At a certain day. 2 Str. 747. 
 
 AD EVERSIONEM JURIS NOSTRI. To 
 the overthrow of our right 2 Kent 91. 
 
 AD EXCAMBIUM (Lat). For exchange; 
 
 for compensation. Bracton, fol. 12 6, 37 b. 
 
 AD EXH/EREDATIONEM. To the dis- 
 herison, or disinheriting. 
 
 The writ of waste calls upon the tenant 
 to appear and show cause why he hath com- 
 mitted waste and destruction in the place 
 named, ad exhwredationem, etc.; 3 Bla. Com. 
 228; Fitzherbert, Nat. Brev. 55. 
 
 AD FACIENDUM. To do. Co. Litt. 204 a. 
 
 AD FACTUM PR/£STANDUM. In Scotch 
 Law. The name given to a class of obliga- 
 tions of great strictness. 
 
 A debtor ad fac. praes. is denied the benefit 
 of the act of grace, the privilege of sanctu- 
 ary, and the cessio bonorum; Erskine, Inst, 
 lib. 3, tit 3, § 62 ; Karnes, Eq. 216. 
 
 AD FID EM. In allegiance. 2 Kent 56. 
 Subjects born in allegiance are said to be 
 born ad fidem. 
 
 AD FILUM AQU/E. To the thread of the 
 stream ; to the middle of the stream. Knight 
 v. Wilder, 2 Cush. (Mass.) 207, 48 Am. Dec. 
 660; Child v. Starr, 4 Hill (N. Y.) 369; 
 Claremont v. Carlton, 2 N. H. 3G9, 9 Am. 
 Dec. 88; 2 Washb. R. P. 632; 3 Kent 428. 
 
 A former meaning seems to have been, to 
 a stream of water. Cowell ; Blount Ad me- 
 dium filum aqua? would be etyniologually 
 more exact; 2 Eden, Inj. 260; and is often 
 used; but the common use of ad filum aqua' 
 is undoubtedly to the thread of the stream ; 
 Thomas v. Hatch, 3 Sumn. 170, Fed. Cas. No. 
 13.S99; Cates' Ex'rs v. Wadlington, 1 Mc- 
 Cord (S. C.) 580, 10 Am. Dec. 699; 3 Kent 
 431; Starr v. Child, 20 Wend. (N. Y.) 149; 
 Ingraham v. Wilkinson, 4 Pick. (Mass.) 272, 
 16 Am. Dec. 342; State v. Canterbury, 2S N. 
 H. 195. 
 
 AD FILUM V\/E (Lat). To the middle 
 of the way. Parker v. Inhabitants of Fram- 
 ingham, 8 Mete. (Mass.) 260. 
 
 AD FIRMAM. To farm. 
 
 Derived from an old Saxon word denoting rent, 
 according to Blackstone, occurring in the phrase, 
 dedi concessi et ad firmam tradidi (I have given, 
 granted, and to farm let): 2 Bla. Com. 317. Ad 
 firmam noctis was a fine or penalty equal in amount 
 to the estimated cost of entertaining the king for 
 one night. Cowell. Ad feodi firmam, to fee farm. 
 Spelman, Gloss. ; CowelL
 
 AD FUNDANDAM JUBISDICTIONEM loU 
 
 AD QUJ5RIM0NIAM 
 
 AD FUNDANDAM J U RISD ICTI ONEM. 
 
 To make the basis of jurisdiction- [1905] 2 
 K. B. 555. 
 
 AD GAOLAS D ELIBERAND AS. To de- 
 liver the gaols. Bract. 109 b. 
 
 AD HOC. As to this. 
 
 AD IDEM. To the same point 
 
 AD INQUIRENDUM (Lat. for inquiry). 
 A judicial writ, commanding inquiry to be 
 made of anything relating to a cause de- 
 pending in court. 
 
 AD INSTANTIAM. At the instance. 2 
 Mod. 43. 
 
 AD INTERIM (Lat). In the meantime. 
 
 An officer is sometimes appointed ad interim, when 
 tie principal officer Is absent, or for some cause 
 Incapable of acting for the time. See Acting. 
 
 AD JURA REGIS (Lat). To the rights 
 of the king. An old English writ to enforce 
 a presentation by the king to a living against 
 one who sought to eject the clerk presented. 
 
 AD LARGUM. At large: as, title at 
 large; assize at large. See Dane, Abr. a 
 144, art. 16, § 7. 
 
 AD LIBITUM. At pleasure. 3 Bla. Com. 
 292. 
 
 AD LITEM (Lat. lites). For the suit. 
 
 Every court has the power to appoint a guardian 
 ad litem; 2 Kent 229; 2 Bla. Com. 427. 
 
 AD LUCRANDUM VEL PERDENDUM. 
 For gain or loss. 
 
 AD MAJOREM CAUTELAM (Lat). For 
 greater caution. 
 
 AD MEDIUM FILUM AQU/E. See Ad 
 
 FlLTJM AQTJ.E. ' 
 
 AD NOCUMENTUM (Lat). To the hurt 
 or injury. 
 
 In an assize of nuisance, it must be al- 
 leged by the plaintiff that a particular thing 
 has been done, ad nocumentum liberi tene- 
 menti sui (to the injury of his freehold) ; 3 
 Bla. Com. 221. 
 
 AD OMISSA VEL MALE APPRETIATA 
 
 With relation to omissions or wrong inter 
 pretations. 3 Ersk. Inst. 9, § 36. 
 
 AD OPUS. To the work. See 21 Harv. L. 
 Rev. 204, citing 2 Poll. & Slaitl. 232 et seq.; 
 Use. 
 
 AD OSTIUM ECCLESI/E (Lat). At the 
 church-door. 
 
 One of the five species of dower formerly 
 recognized at the common law. 1 Washb. 
 R. P. 149 ; 2 Bla. Com. 132. It was in com- 
 mon use in the time of Glanville. Glanv. 
 lib. 6, c. 1; 4 Kent 36. See Doweb. 
 
 AD PIOS USUS. To religious purposes. 
 
 AD PROSEQUENDAM. To prosecute. 11 
 Mod. 362. 
 
 AD PUNCTUM TEMPORIS. At the point 
 of time. Sto. Bailm. § 263. 
 
 AD QU/ERIMONIAM. On complaint of. 
 
 AD QUEM (Lat). To which. 
 
 The correlative term to a quo, used in the 
 computation of time, definition of a risk, 
 etc., denoting the end of the period or jour- 
 ney. 
 
 The terminus a quo is the point of beginning or 
 departure ; the terminus ad quern, the end of the 
 period or point of arrival. 
 
 AD QUOD DAMNUM (Lat). What in- 
 Jury- . . 
 
 A writ issuing out of and returnable into 
 chancery, directed to the sheriff, command- 
 ing him to inquire by a jury what damage 
 it will be to the king, or any other, to grant 
 a liberty, fair, market, highway, or the like. 
 
 The name is derived from the characteristic words 
 denoting the nature of the writ, to inquire how 
 great an injury it will be to the king to grant the 
 favor asked; Whishaw, Fitzherbert, Nat. Brev. 221; 
 Termes de la Ley. 
 
 AD RATIONEM PONERE. To cite a per- 
 son to appear. 
 
 AD RECTUM (L. Lat). To right. To do 
 right To meet an accusation. To answer 
 the demands of the law. Eabeant cos ad 
 rectum. They shall render themselves to 
 answer the law, or to make satisfaction. 
 Bract, fol. 124 o. 
 
 AD RESPONDENDUM. To make answer. 
 Fleta, lib. II, c. 65. It is used in certain 
 writs to bring a person before the court in 
 order to make answer, as in habeas corpus 
 ad respondendum or capias ad responden- 
 dum. 
 
 AD SATISFACIENDUM. To satisfy. It 
 is used in the writ capias, ad satisfaciendum 
 and is an order to the sheriff to take the 
 person of the defendant to satisfy the claims 
 of the plaintiff. 
 
 AD SECTAM. At the suit of. 
 
 It is commonly abbreviated. It is used where it 
 is desirable to put the name of the defendant first, 
 as in some cases where the defendant is filing his 
 papers; thus, Roe ads. Doe, where Doe is plaintiff 
 and Roe defendant. It is found in the indexes to 
 cases decided in some of our older American books 
 of reports, but has become pretty much disused. 
 
 AD TERMINUM QUI PR/ETERIT. A 
 
 writ of entry which formerly lay for the les- 
 sor or his heirs when a lease had been made 
 of lands and tenements for a term of life or 
 years, and, after the term had expired, the 
 lands were withheld from the lessor by the 
 tenant or other person possessing the same. 
 Fitzherb. Nat. Brev. 201. 
 
 AD TUNC ET IBIDEM. The technical 
 name of that part of an indictment contain- 
 ing the statement of the subject-matter "then 
 and there being found." Bacon, Abr. Indict- 
 ment, G. 4; 1 No. C. 93. 
 
 In an Indictment, the allegation of time and place 
 must be repeated in the averment of every distinct 
 material fact ; but after the day, year, and place 
 have once been stated with certainty, it is after- 
 wards, In subsequent allegations, sufficient to refer 
 to them by the words et ad tunc et ibidem, and the 
 effect of these words is equivalent to an actual rep-
 
 AD TUNC ET IBIDEM 
 
 133 
 
 ADD1TI0N 
 
 ctltlon of the time and place. The ad tunc et ibi- 
 dem must be added to every material fact in an in- 
 dictment ; Saund. 95. Thus, an indictment which 
 alleged that J. S. at a certain time and place made 
 an assault upon J. N., et eum cum gladio felonice 
 percussit, was held bad, because it was not said, ad 
 tunc et ibidem percussit ; Dy. C8, 69. And where, 
 In an indictment for murder, it was stated that J. 
 S. at a certain time and place, having a sword in 
 his right hand, percussit J. N., without saying ad 
 tunc et ibidem percussit, it was held insufficient; 
 for the time and place laid related to the having the 
 sword, and consequently it was not said when or 
 where the stroke was given; Cro. Eliz. 738; 2 Hale, 
 PI. Cr. 178. And where the indictment charged that 
 A. B. at N., in the county aforesaid, made an as- 
 sault upon C. D. of F. in the county aforesaid, and 
 him ad tunc et ibidem quodam gladio percussit, this 
 indictment was held to be bad, because two places 
 being named before, if It referred to both, it was 
 Impossible ; if only to one, it must be to the last, 
 and then it was insensible ; 2 Hale, PI. Cr. § 180. 
 
 AD ULTIMAM VIM TE RM I NORU M. To 
 the most extended import of the term, 2 
 Eden 39. 
 
 AD VALOREM (Lat.). According to the 
 valuation. 
 
 Duties may be specific or ad valorem. Ad valorem 
 duties are always estimated at a certain per cent, 
 on the valuation of the property; 3 U. S. Stat. L. 
 732 ; Bailey v. Fuqua, 24 Miss. 50L 
 
 AD VITAM AUT CULPAM. For life or 
 until misbehavior. 
 
 Words descriptive of a tenure of office 
 "for life or good behavior," equivalent to 
 quamdiu bene se gesscrit. 
 
 ADD. To unite; attach; annex; join. 
 Board of Com'rs of Hancock County v. State, 
 119 Ind. 473, 22 N. E. 10. 
 
 ADDICERE (Lat). In Civil Law. To 
 
 condemn. Calvinus, Lex. 
 
 Addict io denotes a transfer of the goods of a de- 
 ceased debtor to one who assumes his liabilities ; 
 Calvinus, Lex. Also used of an assignment of the 
 person of the debtor to the successful party in a 
 suit. 
 
 ADDITION (Lat. additio, an adding to). 
 
 Whatever is added to a man's name by 
 way of title or description, as additions of 
 mystery, place, or degree. Cowell ; Termes 
 de la Ley; 10 Wentw. PI. 371; Salk. 5; 2 
 Ld. Raym. 9SS; 1 Wils. 244. 
 
 Additions of estate are esquire, gentleman, 
 and the like. 
 
 These titles can be claimed by none, and may be 
 assumed by any one. In Nash v. Battersby (2 Ld. 
 Raym. 9S6; 6 Mod. 80), the plaintiff declared with 
 the addition of gentleman. The defendant pleaded 
 In abatement that the plaintiff was no gentleman. 
 The plaintiff demurrer, and it was held ill ; for, 
 Baid the court, it amounts to a confession that the 
 plaintiff is no gentleman, and then not the person 
 named in the count. He should have replied that 
 he is a gentleman. 
 
 Additions of mystery are such as scrivener, 
 painter, printer, manufacturer, etc. 
 
 Additions of place are descriptions by the 
 place of residence, as A. B. of Philadelphia, 
 and the like. See Bacon, Abr. Addition; 
 Doctr. Plac. 71; 2 Viner, Abr. 77; 1 Lilly, 
 Reg. 39; Com. v. Lewis. 1 Mete. (Mass.) 151. 
 
 The statute of additions extends only to 
 
 the party indicted. An indictment, there- 
 fore, need not describe, by any additi.! the 
 person upon whom the offence therein set 
 forth is alleged to have been committed ; 2 
 Leach, Cr. Cas. (4th ed.) 8G1 ; Com. \ 
 ney, 10 Cush. (Mass.) KiL'. And if an addi- 
 tion is stated, it need not be proved ; - Leach, 
 Cr. Cas. (4th ed.) 547; 2 Carr. & 1' 
 But where a defendant was indicted for 
 marrying E. C, "widow," his first wife be- 
 ing alive, it was held that the addition was 
 material ; 1 Mood. Cr. Cas. 303 ; 4 C. & P. 
 570. At common law there was no need of 
 addition in any case; 2 Ld. Raym. 9S8; it 
 was required only by star, 1 Hen. V. c. 5, 
 in cases where process of outlawry lies. In 
 all other cases it is only a description of the 
 person, and common reputation is sufficient; 
 2 Ld. Raym. 849. No addition is necessary 
 in a Homine Replcgiando; 2 Ld. Raym. 987; 
 Salk. 5; 1 Wils. 244, 245; 6 Co. 07. See 
 Woman. 
 
 Addition m the law of mechanics' Mens. 
 An addition erected to a former building to 
 constitute a building within the meaning of 
 the mechanics' lien law must be a lateral 
 addition. It must occupy ground without 
 the limits of the building to which it con- 
 stitutes an addition ; so that the lien shall 
 be upon the building formed by the addition, 
 and not the land upon which it stands. An 
 alteration in a former building by adding 
 to its height, or its depth, or to the extent 
 of its interior accommodations, is an altera- 
 tion merely, and not an addition ; Updike v. 
 Skillman, 27 N. J. L. 132. See Lien ; A 
 
 SION. 
 
 In addition to means not exclusive of. but 
 by way of increase or accession to. In re 
 Daggett's Estate, 9 N. Y. Supp. (\:c. 
 
 In French Law. A supplementary process 
 to obtain additional information; Guyot, /.'< - 
 pert. 
 
 ADDITIONAL. This term embraces the 
 idea of joining or uniting one thing to an- 
 other, so as thereby to form one aggregate. 
 We add by bringing things together; State 
 v. Hull, 53 Miss. 62G, 645. 
 
 ADDITIONAL BURDEN. See E.mimnt 
 Domain. 
 
 ADDITIONALES. Additional terms or 
 propositions to be added to a former agree- 
 ment. 
 
 ADDLED PARLIAMENT. The parliament 
 which met in 1G14 was so called. It sat for 
 but two months and none of its bills received 
 the royal assent. Taylor, Jurispr. 359. 
 
 ADDRESS. That part of a bill in equity 
 which contains the appropriate description 
 of the court where the plaintiff seeks his 
 remedy. Cooper, Eq. Tlead. S; Story, Eq. 
 Plead. § 26; Van Heyth. Eq. Draft 2. 
 
 In Legislation. A formal request address- 
 ed to the executive by one or both branches
 
 ADDRESS 
 
 134 
 
 ADEMPTION 
 
 of the legislative body, requesting him to 
 I jrform some act 
 
 It is provided as a means for the removal of judg- 
 es who are deemed unworthy longer to occupy their 
 situations, although the causes of removal are not 
 such as would warrant an impeachment. It is not 
 provided for in the Constitution of the United 
 States ; and even in those states where the right 
 exists it is exercised but seldom, and generally with 
 great unwillingness. 
 
 ADDRESS TO THE CROWN. When the 
 royal speech has been read in Parliament, 
 an address in answer thereto is moved in 
 both houses. Two members are selected in 
 each house by the administration for moving 
 and seconding the address. Since the com- 
 mencement of the session 1890-1S91, it has 
 been a single Resolution expressing their 
 thanks to the sovereign for his gracious 
 speech. 
 
 ADELANTADO. In Spanish Law. The 
 
 military and political governor of a frontier 
 province. This office has long since been 
 abolished. 
 
 ADEMPTION (Lat. ademptio, a taking 
 away). The extinction or withholding of a 
 legacy in consequence of some act of the tes- 
 tator which, though not directly a revoca- 
 tion of the bequest, is considered in law as 
 equivalent thereto, or indicative of an inten- 
 tion to revoke. 
 
 It is a distinction between the revocation 
 of a will and the ademption of a legacy that 
 the former cannot be done wholly or partly 
 by words, but parol evidence is admissible to 
 establish the latter ; 2 Tayl. Ev. § 1146 ; and 
 it may also be rebutted by parol; id. § 1227. 
 
 The question of ademption of a general leg- 
 acy depends entirely upon the intention of 
 the testator, as inferred from his acts under 
 the rules established in law ; Cowles v. 
 Cowles, 56 Conn. 240, 13 Atl. 414; Richards 
 v. Humphreys, 15 Pick. (Mass.) 133. Where 
 the relations of the parties are such that the 
 legacy is, in law, considered as a portion, an 
 advancement during the life of the testator 
 will be presumed an ademption, at least, 
 to the extent of the amount advanced ; 5 M. 
 & C. 29 ; 3. Hare 509 ; Roberts v. Weather- 
 ford, 10 Ala. 72 ; Moore v. Hilton, 12 Leigh 
 (Va.) 1; Hansbrough's Ex'rs v. Hooe, 12 
 Leigh (Va.) 316, 37 Am. Dec. 659; Carmichael 
 v. Latbrop, 108 Mich. 473, 66 N. W. 350, 32 
 L. R. A. 232 ; and see 3 C. & F. 154 ; 18 Ves. 
 151, but this presumption may be rebutted ; 
 Jones v. Mason, 5 Rand. (Va.) 577, 16 Am. 
 Dec. 761 ; and to raise the presumption, the 
 donor must put himself in loco parentis; 2 
 Bro. C. C. 499. There is no ademption where 
 the advancement and portion are not ejus- 
 dem, generis; 1 Bro. C. C. 555; or where 
 the advancement is contingent and the 
 portion certain; 2 Atk. 493; 3 M. & C. 
 374 ; or where the advancement is expressed 
 to be in lieu of, or compensation for, an in- 
 terest ; 1 Ves. Jr. 257 ; or where the bequest 
 is of uncertain amount; 15 Ves. 513; 4 Bro. 
 
 C. C. 494; but see 2 H. L. Cas. 131; or 
 where the legacy is absolute and the advance- 
 ment for life merely; 2 Ves. 38; 7 Ves. 516; 
 or where the devise is of real estate; 3 
 Y. & C. 397; but in the Virginia case above 
 cited the doctrine was held to apply as well 
 to devises of realty as to bequests of per- 
 sonalty; Hansbrough's Ex'rs v. Hooe, 12 
 Leigb (Va.) 316, 37 Am. Dec. 659. See Mar- 
 shall v. Rench, 3 Del. Ch. 239, where Bates, 
 C, treats this subject in an able opinion. 
 
 It was treated as a settled rule in 5 Ves. 
 79, and in 1 Cox 1S7, that a residuary be- 
 quest to wife or children is never adeemed 
 by an advancement, not being the gift of a 
 portion ; but in some cases there has been 
 a tendency to qualify this doctrine, as also 
 that of requiring the advancement and the 
 legacy to be ejusdem generis, as above stated, 
 and as bearing upon one or both of these 
 points these cases should be consulted ; 10 
 Ves. 1; 15 id. 507; 2 Bro. C. C. 394 ; Car- 
 michael v. Lathrop, 108 Mich. 473, 66 N. W. 
 350, 32 L. R'A 232; and see 10 Harv. L. 
 Rev. 52. The doctrine will not be applied to 
 a gift of residue to an adopted child and a 
 stranger jointly; [1906] 2 Ch. 230; L. R. 7 
 Ch. App. 670. See note on these cases in 
 20 Harv. L. Rev. 72. 
 
 Where deposits are made in a bank by a 
 father for the use of his daughter and in 
 her name and the passbook is delivered to 
 her, it will not work an ademption of a 
 pecuniary legacy, although deposits are made 
 partly after the execution of the will ; In re 
 Crawford, 113 N. Y. 560, 21 N. E. 692, 5 L. 
 R. A. 71. 
 
 But where the testator was not a parent 
 of the legatee, nor standing in loco parentis, 
 the legacy is not to be held a portion, but a 
 bounty, and the rule as to ademption does 
 not apply; 2 Hare 424; 2 Story, Eq. Jur. § 
 1117; Wms. Exrs. 1338; except where there 
 is a bequest for a particular purpose and 
 money is advanced by the testator for the 
 same purpose; 2 Bro. C. C. 166; 1 Ball & B. 
 303; see 6 Sim. 528; 3 M. & C. 359; 2 P. 
 Wms. 140; 1 Pars. Eq. Cas. 139; Richards 
 v. Humphreys, 15 Pick. (Mass.) 133; a legacy 
 of a sum of money to be received in lieu of 
 an interest in a homestead is satisfied by 
 money amounting to the legacy during tes- 
 tator's lifetime; Roquet v. Eldridge, 118 Ind. 
 147, 20 N. E. 733. 
 
 The ademption of a specific legacy is effect- 
 ed by the extinction of the thing or fund, as 
 it is generally stated, without regard to the 
 testator's intention ; 3 Bro. C. C. 432 ; 2 Cox, 
 Ch. 182; Blackstone v. Blackstone, 3 Watts 
 (Pa.) 338, 27 Am. Dec. 359 ; and see White v. 
 Winchester, 6 Pick. (Mass.) 48; Richards v. 
 Humphreys, 15 Pick. (Mass.) 133; Stout v. 
 Hart, 7 N. J. L. 414; Bell's Estate, 8 Pa. Co. 
 Ct. 454 ; but not where the extinction of the 
 specific thing is by act of law and a new 
 thing takes its place ; Ambl. 59 ; 9 Hare 666 ; 
 Cas. temp. Talbot 226; Walton v. Walton,
 
 ADEMPTION 
 
 135 
 
 ADEMPTION 
 
 7 Johns. Ch. 258, 11 Am. Dec. 456 ; but see i 
 4 C. P. D. 336; Kay & J. 341; [1906] 2 Ch. ' 
 4S0; and note thereon in 20 Harv. L. Rev. 
 239. The last cited case is rather a departure 
 from the rule of the cases cited supra as to 
 extinction of the legacy by act of law which 
 does not rest on intention, but see Mahoney v. 
 Holt, 19 R. I. 660, 36 Atl. 1, where the sup- 
 posed intention of the testator was held 
 to require the substitution of a money equiv- 
 alent for certain stock bequeathed. Where 
 a breach of trust has been committed or any 
 trick or device practised with a view to de- 
 feat the specific legacy; S Sim. 171; or 
 where the fund remains the same in sub- j 
 stance, with some unimportant alterations; 
 1 Cox, Ch. 427 ; 3 Bro. C. C. 416 ; 3 M. & K. 
 296 ; Havens v. Havens, 1 Sandf. Ch. (N. Y.) 
 334 ; Ford v. Ford, 23 N. H. 212 ; as a lease 
 of ground rent for 99 years after a devise of 
 it; Eberhardt v. Perolin, 49 N. J. Eq. 1 
 57.0, 25 Atl. 511; or where the testator 
 lends the fund on condition of its being re- 
 placed; 2 Bro. C. C. 113. A devise of a lease- 
 hold estate is adeemed if the lease expire 
 and is renewed; 1 Bro. C. C. 261; 2 Ves. 
 418; 16 Ves. 197; 2 Atk. 593; or where it is 
 assigned upon, other trusts; 22 Beav. 223; 
 but a bequest of an interest in profits of a 
 firm is not lost by the expiration and renewal 
 of the partnership agreement ; Amb. 260. A 
 specific legacy is not adeemed by a pledge of 
 the subject; 3 Bro. C. C. 10S; 3 Myl. & K. 
 358 ; but the legatee is entitled to have it 
 redeemed ; id. A specific legacy of a debt 
 due testator from a third party is adeemed 
 by its payment; 2 P. Wins. 328 ; 3 Bro. C. C. 
 431 ; 2 id. 108 ; 2 Cox C. C. ISO; Ludlam's 
 Estate, 1 Pars. Eq. (Pa.) 116 ; or partially to 
 the extent of part payment ; Gardner v. 
 Printup, 2 Barb. (N. Y.) 83 ; but not by sub- 
 stitution of a new security or a change in its 
 form; Ford v. Ford, 23 N. H. 212; New 
 Hampshire Bank v. Willard, 10 N. H. 210; 
 Dunham v. Dey, 15 Johns. (N. Y.) 555, 8 Am. 
 Dec. 282. But courts have been astute to 
 construe a legacy to be demonstrative, if 
 possible, to avoid an ademption ; Walton v. 
 Walton, 7 Johns. Ch. (N. Y.) 258, 11 Am. Dec. 
 456. See infra, subhead Demonstrative Leg- 
 acies. 
 
 But when a mortgage specifically bequeath- 
 ed was foreclosed and a new bond and 
 mortgage taken from the purchaser, and a 
 memorandum was found after testator's 
 death in his handwriting to the effect that 
 it was but a renewal of the old bond and 
 that it was his intention that it should pass 
 to the legatee, there was held an ademption; 
 Beck v. McGillis, 9 Barb. (N. Y.) 35. In this 
 case the hardship and defeat of intention 
 was admitted, but it was considered that the 
 rule could not be relaxed that if the subject 
 of a specific legacy did not exist at the death 
 of the testator it was adeemed and nothing 
 else could be substituted. 
 
 A legacy of stock is adeemed by its sale 
 though testator purchased back an equal 
 amount of similar but not identical securi- 
 ties; 1 Myl. & K. 12. 
 
 The removal of goods from a place named 
 In the legacy will work an ademption ; 1 Bro. 
 C. C. 129, n. ; 3 Madd. 276; 21 Beav. 548; 
 contra, 27 Beav. 138 ; and it makes no differ- 
 ence if the removal was because a lease had 
 expired ; 6 Sim. 19. Ademption is not worked 
 by a mere temporary or accidental removal ; 
 4 Bro. C. C. 537 ; or for repairs ; 2 De G. & 
 Sm. 425 ; or "for a necessary purpose," or on 
 account of fire; 1 Ves. 271. 
 
 In the case of demonstrative legacies, to be 
 paid out of a particular fund pointed out, 
 there is no ademption, and if the fund does 
 not exist, they are payable from the general 
 assets ; Armstrong's Appeal, 63 Pa. 312 ; Gid- 
 dings v. Seward, 16 N. Y. 365 ; 4 Hare. 27G ; 
 1 P. Wms. 777 ; Walton v. Walton, 7 Johns. 
 Ch. (N. Y.) 258, 11 Am. Dec. 456; T. Raym. 
 335; 2 Bro. C. C. 114; Kenaday v. Sinnott, 
 179 U. S. 606, 21 Sup. Ct. 233, 45 L. Ed. 339 ; 
 Ives v. Canby, 48 Fed. 718 ; Gelbach v. Shive- 
 ly, 67 Md. 498, 10 Atl. 247. The statement 
 that the testator's intention has no bearing 
 on the question of the ademption of specific 
 legacies, made in 2 Cox 180, has been so fre- 
 quently repeated as to be commonly accepted 
 as a rule of decision ; but, as remarked by 
 Chancellor Kent in Walton v. Walton, 7 
 Johns. Ch. (N. Y.) 258, these words are to be 
 taken with considerable qualification. It is 
 certainly true that when it is necessary to la- 
 bel the legacy as general or specific, which is 
 necessarily done in the case of demonstrative 
 legacies, the question of intention is material 
 and in 2 Ves. Jr. 639, Lord Loughborough 
 makes the matter of intention the criterion, 
 and there are few cases in which it is not 
 discussed. In Kenaday v. Sinnott, 179 U. S. 
 606, 21 Sup. Ct 233, 45 L. Ed. 339, it was 
 said that "the ademption of a specific legacy 
 is effected by the extinction of the thing or 
 fund bequeathed, and the intention that the 
 legacy should fail is presumed" ; but there a 
 legacy to the wife of deposits in a bank 
 "amounting to $10,000 more or less" was held 
 not adeemed by purchasing bonds after the 
 will was made, reducing the amount in bank, 
 and the wife was awarded the amount of the 
 legacy, which was held to be demonstrative 
 upon the "manifest general intention of the 
 testator" as shown by the whole will. 
 
 The courts lean against holding that there 
 is an ademption unless the intention is clear- 
 ly shown, and, to avoid it, favor the construc- 
 tion of a legacy as demonstrative rather than 
 specific; Norris v. Thomson's Ex'rs, 16 N. 
 J. Eq. 218 ; Cogdell's Ex'rs v. Cogdell's Heirs, 
 3 Desaus. (S. C.) 373 ; In re Foote, 22 Pick. 
 (Mass.) 302; Bradford v. Haynes, 20 Me. 
 105 ; Boardman v. Boardman, 4 Allen (Mass.) 
 179; 8 Ves. 413; Appeal of Balliet, 14 Pa. 
 461. See 11 Am. Dec. 470, note.
 
 ADEMPTION 
 
 136 
 
 ADITUS 
 
 Republication of a will may prevent the 
 effect of what would otherwise work an 
 ademption: 1 Rop. Leg. 351. 
 
 A specific legacy which has been adeemed 
 will not be revived by a republication of the 
 will after the ademption; Trustees of Uni- 
 tarian Society in Harvard v. Tufts, 151 Mass. 
 76, 23 N. E. 1006, 7 L. R. A. 390. See Leg- 
 acy ; Advancement; Gift; 37 Am. Dec. 667, 
 note. 
 
 ADEQUATE CAUSE. Sufficient cause for 
 a particular purpose. Pennsylvania & N. Y. 
 Canal & R. Co. v. Mason, 109 Pa. 296, 58 Am. 
 Rep. 722. Such a cause as would commonly 
 produce a degree of anger, rage, resentment, 
 or terror in a person of ordinary temper, suf- 
 ficient to render the mind incapable of cool 
 reflection. Boyett v. State, 2 Tex. App. 100. 
 It is to be determined by the particular cir- 
 cumstances of each particular case; Wil- 
 liams v. State, 7 id. 396. 
 
 ADEU. Without day, as when a matter 
 is finally dismissed by the court Alez adeu, 
 go without day. Y. B. 5 Edw. II. 173. 
 
 ADHERING (Lat. adhoerere, to cling to). 
 Cleaving to, or joining; as, adhering to the 
 enemies of the United States. 
 
 The constitution of the United States, art 3, s. 3, 
 defines treason against the United States to consist 
 only in levying war against them, or in adhering to 
 their enemies, giving them aid and comfort. 
 
 A citizen's cruising in an enemy's ships 
 with a design to capture or destroy Ameri- 
 can ships, would be an adhering to the en- 
 emies of the United States; 4 State Trials 
 328 ; Salk. 634 ; 2 Gilbert, Ev. Lofft ed. 798. 
 
 ADHESION. The .encrance of another 
 state into an existing treaty with respect 
 only to a part of the principles laid down or 
 the stipulations agreed to. Opp. Int. L. § 
 533. 
 
 Though, properly speaking, by adhesion 
 the third state becomes a party only to such 
 parts as are specifically agreed to,' and by ac- 
 cession it accepts and is bound by the whole 
 treaty, the distinction between the two terms 
 is not always observed, as appears even in 
 the Hague "Convention with inspect to the 
 Laws and Customs of 'War on Land" 1899, 
 which in art. iv authorizes non-signatory 
 powers "to adhere" and provides how they 
 shall make known their "adhesion"; while, 
 as is remarked by the writer above cited, "ac- 
 cession" is meant. See Accession. 
 
 ADIT. In mining law, an entrance or ap- 
 proach. A horizontal excavation used as an 
 entrance to a mine, or a vent by which ores 
 and water are carried away. 
 
 An excavation "in and along a lode," which 
 in statutes of Colorado a 1 other mining 
 states is made the equivalent of a discovery 
 shaft Snyder, Mines 129G, App. B. I. § 6; 
 Gray v. Truby, 6 Col. 2Tb ; Electro-Magnetic 
 M. & D. Co. v. Van Auken, 9 Col. 204, 11 
 Pac. 80. 
 
 ADITUS (Lat). An approach; a way; a 
 public way. Co. Litt 56 o. 
 
 ADJACENT. Next to, or near, neighbor- 
 ing. 29 Alb. L. J. 24. 
 
 Two of three lots of land might be described as 
 adjacent to the first, while only the second could ba 
 said to be adjoining; 1 Cooke 128; Municipality No. 
 2, For Opening Rofflgnac St., 7 La. Ann. 76 ; Con- 
 tinental Imp. Co. v. Phelps, 47 Mich. 299, 11 N. 
 W. 167. 
 
 Land is adjacent to the line of a railroad, 
 where by reason of its proximity thereto it is 
 directly and materially benefitted by the con- 
 struction thereof; U. S. v. Chaplin, 31 Fed. 
 890. Where a statute authorized the taking 
 of material for building a railroad from pub- 
 lic lands "adjacent" to the line thereof, what 
 is adjacent land must depend on the circum- 
 stances of the particular case ; where the ad- 
 jacent ends and the non-adjacent begins may 
 be difficult to determine. It is a word of 
 flexible meaning, depending upon context and 
 subject matter. U. S. v. R. Co., 31 Fed. S86. 
 
 ADJECTIVE LAW. Rules of procedure or 
 administration as distinguished from rules of 
 substantive law. See Holland, Jurispr. 76. 
 
 See Substantive Law. 
 
 ADJOINING. The word in its etymologi- 
 cal sense, means touching or contiguous, as 
 distinguished from lying near or adjacent. 
 In re Ward, 52 N. Y. 397 ; Miller v. Mann, 55 
 Vt 479 ; Akers t. Canal Co., 43 N. J. L. 110. 
 It is held that a yard may be separated by a 
 street and yet adjoin; Com. v. Curley, 101 
 Mass. 25. Towns touching at corners adjoin ; 
 Holmes v. Carley, 31 N. Y. 289. The words 
 "along" and "adjoining" are used as synony- 
 mous terms and as used in a statute imply 
 contiguity, contact; Walton v. Ry. Co., 67 
 Mo. 58. 
 
 ADJOINING LANDOWNERS. See Emi- 
 nent Domain; Lateral Support; Fence; 
 Window. 
 
 ADJOURN. To put oil ; to dismiss till an 
 appointed day,»or without any such appoint- 
 ment. But it has ahso acquired the meaning 
 of. suspending business for a time — deferring, 
 delaying. Prohably, as to a sale or judicial 
 proceeding, it would include the fixing of an- 
 other day ; La Farge v. Van Wagenen, 14 
 How. 1'r. (N. Y.) 54. See Adjournment. 
 
 ADJOURNED TERM. A continuation of 
 a previous or regular term. Harris v. Gest, 
 4 Ohio St. 473'; Van Dyke v. State, 22 Ala. 
 57. 
 
 ADJOURNMENT. The dismissal by some" 
 court, legislative assembly, or properly au- 
 thorized officer, of the business before them, 
 either finally (which, as .popularly used, is 
 colled an adjournment sine- die, without day), 
 or to meet again ut and her time appointed 
 (which is called a* temporary adjournment). 
 
 The constitution of the United States, art 
 1, s. 5, 4. directs that "neither house, during 
 the se>-ion of congress, shall, without the 
 
 •Jl
 
 ADJOURNMENT 
 
 137 
 
 ADJUNCTION 
 
 consent of the other, adjourn for more than 
 three days, nor to any other place than that 
 In which the two houses shall be sitting." 
 
 An adjournment of an annual town meet- 
 ing to another place or a later hour of the 
 same day was held valid, but with hesitation 
 as involving possible hardship; and the pow- 
 er should not bo exercised except in extreme 
 necessity; People v. Martin, 5N. I. 22. 
 
 In Civil Law. A calling into court; a 
 summoning at an appointed time. Du Cange. 
 
 ADJOURNMENT DAY. In English 
 Practice. A day appointed by the judges 
 at the regular sittings for the trial of causes 
 at nisi prius. 
 
 ADJOURNMENT DAY IN ERROR. In 
 English Practice. A day appointed some 
 days before the end of the term at which 
 matters left undone on the affirmance day 
 are finished. 2 Tidd, Pract 1224. 
 
 ADJOURNMENT IN EYRE. The appoint- 
 ment of a day when the justices in eyre 
 mean to sit again. 1 Bla. Com. 186. 
 
 ADJUDGE. To decide or determine. It 
 is sometimes used with "considered, ordered, 
 determined, decreed as one of the operative 
 words of a final judgment," but is also ap- 
 plicable to interlocutory orders. It is syn- 
 onymous with "decided," "determined," etc., 
 "and may be used by a judge trying a case, 
 without a jury with reference to his findings 
 of fact, but they would not be a judgment"; 
 Edwards v. Hellings, 99 Cal. 214, 33 Pac. 799. 
 "Convicted and adjudged" not to be lawfully 
 entitled to remain in the United States, un- 
 der the Chinese Exclusion Act, means "found, 
 decided by the Commissioner, representing, 
 not the administration of criminal law, but 
 the political department of the government;" 
 U. S. v. Hing Quong Chow, 53 Fed. 233. 
 
 Adjudged does not mean the same as 
 deemed, nor is one disqualified as a witness 
 who "shall, upon conviction, be adjudged 
 guilty of perjury" merely by verdict of 
 guilty or until sentence; Blaufus v. Feople, 
 69 N. Y. 107, 25 Am. Rep. 148. It was said 
 by Gibson, C. J., that the word "can be pred- 
 icated only of an act of the court" ; Sea- 
 right v. Com., 13 S. & R. (Pa.) 301. 
 
 ADJUDICATAIRE. In Canadian Law. 
 A purchaser at a sheriff's sale. See 1 Low: 
 Can. 241 ; 10 id. 325. 
 
 ADJUDICATION. A judgment; giving or 
 pronouncing judgment in a case. Determina- 
 tion in the exercise of judicial power. Street 
 v. Benner, 20 Fla. 700; Joseph C. Irwin & 
 Co. v. U. S., 23 Ct CI. 149. 
 
 In Scotch Law. A process for transfer- 
 ring the estate of a debtor to his creditor. 
 Erskine, Inst. lib. 2, tit. 12, §§ 39-55. 
 
 ADJUNCTION (Lat. adjungere, to join to). 
 In Civil Law. The attachment or union 
 permanently of a thing belonging to one 
 person to that belonging to another. This 
 union may be caused by inclusion, as if one 
 
 man's diamond be set in another's rii 
 soldering, as if one's guard be 
 another's sword ; by sewing, as i. . 
 tag the silk of one to make the co 
 (idler; by construction, as by buildu 
 another's land; by writing, as when one 
 writes on another's parchment; or by point- 
 ing, as when one paints a picture on anoth 
 er's canvas. 
 
 In these cases, as a general rule, the ac- 
 cessory follows the principal; hence those 
 things which are attached to the thii 
 another become the property of the latter. 
 The only exception which the civilians made 
 was in the case of a picture, which, although 
 an accession, drew to itself the canvas, on 
 account of the importance which was at- 
 tached to it; Inst. 2. 1. 34; Dig. 41. 1. 9. 2. 
 The common law implicitly adopts the civil 
 law doctrines. See 2 Bla. Com. 404. See 
 Accession. 
 
 ADJUNCTS. Additional judges sometimes 
 appointed in the Court of Delegates, q. v. 
 See Shelford, Lun. 310; 1 Hagg. Eecl. Rep. 
 384 ; 2 id. 84 ; 3 id. 471. 
 
 ADJUST. To put in order; to determine 
 an amount due. See State v. Staub, 61 Conn. 
 553, 23 Atl. 924; State v. Moore, 40 Neb, 854, 
 59 N. W. 755, 25 L. R. A. 774. Accounts are 
 adjusted when they are settled and a bal- 
 ance struck ; Townes v. Birchett, 12 Leigh 
 (Va.) 173, 201. It is sometimes used in the 
 sense of pay; see Lynch v. Nugent, SO la. 
 422, 46 N. W. 61. 
 
 ADJUSTMENT. The determining of the 
 amount of a loss. 2 Phillips, Ins. §5 1S14. 
 1815. To settle or bring to a satisfactory 
 state so that parties are all agreed. M. 
 New York v. Ins. Co., 39 N. Y. 45, 100 Am. 
 Dec. 400. 
 
 There is no specific form essentially 
 uisite to an adjustment. To render it bind- 
 ing, it must be intended, and understood by 
 the parties to a policy, to he absolute and 
 final. It may be made by indorsement on 
 the policy, or by payment of the loss, or the 
 acceptance of an abandonment ; 4 Burr. 
 1 Campb. 134, 274; Barlow v. Ins. Co., 4 
 Mete. (Mass.) 270; Reynolds v. Ins. Co., 22 
 Pick. (Mass.) 191, 33 Am. Dec. 727. It must 
 be made with full knowledge of all the facts 
 material to the right of the insured to re- 
 cover, and the adjustment can be impeai hed 
 only for fraud or mistake of such material 
 fact; Remington v. Ins. Co., 14 R. I. 247. 
 If there is fraud by either party to an ad- 
 justment, it does not hind the other; Tan- 
 gier v. Hallett, 2 Johns. Caa (N. Y.) 233; 3 
 Campb. 319. If one party is led into a ma- 
 terial mistake of fact by fault of the other, 
 the adjustment will not bind him; 2 Last 
 469; Elting v. Scott, 2 Johns. (N. Y.) 157; 
 Faugier v. Hallett, 2 Johns. Cas. (X. Y.) 233. 
 
 It is a sufficient adjustment if the party 
 employed by an insurance company goes up- 
 on the premises, makes calculations, and
 
 ADJUSTMENT 
 
 138 
 
 ADMINISTERING POISON 
 
 states the loss ; Fame Ins. Co. v. Norris, IS 
 111. App. 570. 
 
 See Insurable Interest; Abandonment; 
 Insurance; Policy. 
 
 ADMEASUREMENT OF DOWER. A 
 remedy which lay for the heir on reaching 
 his majority, to rectify an assignment of 
 dower made during his minority, by which 
 the doweress had received more than she 
 was legally entitled to. 2 Bla. Com. 136; 
 Gilbert, Uses 379. 
 
 The remedy is still subsisting, though of 
 rare occurrence. See 1 Washb. R. P. 225, 
 226; Jones v. Brewer, 1 Pick. (Mass.) 314; 
 McCormick v. Taylor, 2 Ind. 336. 
 
 In some of the states, the special proceed- 
 ing which is given by statute to enable the 
 widow to compel an assignment of dower, 
 is termed an admeasurement of dower. 
 
 ADMEASUREMENT OF PASTURE. A 
 remedy which lay in certain cases for sur- 
 charge of common of pasture. It lay where 
 a common of pasture appurtenant or in gross 
 was certain as to number ; or where one had 
 common appendant or appurtenant, the quan- 
 tity of which had never been ascertained. 
 The sheriff proceeded, with the assistance of 
 a jury of twelve men, to admeasure and ap- 
 portion the common as well of those who had 
 surcharged as those who had not, and, when 
 the writ was fully executed, returned it to 
 the superior court. Termes de la Ley. 
 
 The remedy is now abolished in England; 
 3 Sharsw. Bla. Com. 239, n.; and in the Unit- 
 ed States; 3 Kent 419. 
 
 In English Law. Aid; support. Stat. 1 
 Edw. IV. c. 1. 
 
 In Civil Law. Imperfect proof. Merlin, 
 Rupert. 
 
 ADMINICULAR. Auxiliary and subordi- 
 nate to. The Marianna Flora, 3 Mas. 116, 
 121, Fed. Cas. No. 9.0S0. Adminicular evi- 
 dence, as used in ecclesiastical law, is evi- 
 dence to explain and complete other evidence. 
 2 Lee, Eccl. 595. See 1 Gr. Ev. Sec. 606. 
 
 ADMINISTER. To give, to direct or cause 
 to be taken. Gilchrist v. Comfort, 34 N. Y. 
 239 ; Brinson v. State, 89 Ala. 105, 8 South. 
 527. 
 
 ADMINISTERING POISON. An offence 
 of an aggravated character, punishable un- 
 der the various statutes defining the offence. 
 
 The stat 9 G. IV. c. 31, s. 11, enacts "that if any 
 person unlawfully and maliciously shall administer, 
 or attempt to administer, to any person, or shall 
 cause to be taken by any person, any poison or oth- 
 er destructive thing," etc., every such offender, etc. 
 In a case under this statute, it was decided that, to 
 constitute the act of administering the poison, it 
 was not absolutely necessary that there should have 
 been a delivery to the party poisoned, but that if 
 she took it from a place where it had been put for 
 her by the defendant, and any part of it went into 
 her stomach, it was an administering; 4 Carr. & 
 P. 369; 1 Mood. Cr. Cas. 114; Brown v. State, 88 
 Ga. 257, 14 S. E. 578; Bell v. Com., 88 Va. 365, 13 
 S. E. 742; Blackburn v. State, 23 Ohio St. 146; La 
 Beau v. People, 34 N. Y. 223. 
 The statute 7 Will. IV. & 1 Vict c. 85 enacts that 
 
 "Whosoever, with intent to procure the miscarriage 
 of any woman, shall unlawfully administer to her, 
 or cause to be taken by her, any poison, or other 
 noxious thing," shall be guilty of felony. Upon an 
 indictment under this section, it was proved that 
 the woman requested the prisoner to get her some- 
 thing to procure miscarriage, and that a drug was 
 both given by the prisoner and taken by the woman 
 with that intent, but that the taking was not in the 
 presence of the prisoner. It was held, nevertheless, 
 that the prisoner had caused the drug to be taken 
 within the meaning of the statute; 1 Dears. & B. 127, 
 164. It is not sufficient that the defendant merely 
 imagined that the thing administered would have 
 the effect intended, but it must also appear that the 
 drug administered was either a "poison" or a 
 "noxious thing." 
 
 See Accessory; Abortion. 
 
 ADMINISTRATION (Lat. administrare, to 
 assist in). 
 
 Of Estates. See Executors and Admin- 
 istrators. 
 
 Of Government. The management of the 
 executive department of the government. 
 
 Those charged with the management of 
 the executive department of the government. 
 
 ADMINISTRATOR. See Executors and 
 Administrators. 
 
 See Ordinary. 
 
 ADMINISTRATRIX. A woman to whom 
 letters of administration have been granted 
 and who administers the estate. 
 
 When an administratrix marries, that fact 
 does not prevent her from suing as such ; 
 Cosgrove v. Pitman, 103 Cal. 268, 37 Pac. 
 232 ; nor does the marriage of a feme sole 
 annul her appointment; Hamilton v. Levy, 
 41 S. C. 374, 19 S. E. 610. 
 
 ADMIRAL (Fr. amiral). A high officer or 
 magistrate that hath the government of the 
 king's navy, and the hearing of all causes 
 belonging to the sea. Cowell. See Admi- 
 ralty. 
 
 By statute of July 25, 1866, the active lists of line- 
 officers of the navy of the United States were divid- 
 ed into ten grades, of which the highest is that of 
 admiral, and the next that of vice-admiral. By 
 statute of Jan. 24, 1873, these grades ceased to exist 
 when the offices became vacant, and the highest 
 rank is rear-admiral. 
 
 ADMIRALTY. A court which has a very 
 extensive jurisdiction of maritime causes, 
 civil and criminal. 
 
 On the revival of commerce after the fall of the 
 Western empire, and the conquest and settlement 
 by the barbarians, it became necessary that some 
 tribunal should be established that might hear and 
 decide causes that arose out of maritime commerce. 
 The rude courts established by the conquerors had 
 properly jurisdiction of controversies that arose on 
 land, and of matters pertaining to land, that being 
 at the time the only property that was considered 
 of value. To supply this want, which was felt by 
 merchants, and not by the government or the people 
 at large, on the coast of Italy and the northern 
 shores of the Mediterranean, a court of consuls was 
 established in each of the principal maritime cities. 
 Contemporaneously with the establishment of these 
 courts grew up the customs of the sea, partly bor- 
 rowed, perhaps, from the Roman law, a copy of 
 which had at that time been discovered at Amalfi, 
 but more out of the usage of trade and the practice 
 of the sea. These were collected from time to time, 
 embodied in the form of a code, and published under 
 the name of the Consolato del Mare. See that sub-
 
 ADMIRALTY 
 
 139 
 
 ADMIRALTY 
 
 title under Code. The first collection of these cus- 
 toms is said to be as early as the eleventh century ; 
 but the earliest authentic evidence we have of their 
 existence is their publication, in 1266, by Alphonso 
 X., King of Castile; 1 Pardessus, Lois Maritimea, 
 201. See 3 Kent 16. 
 
 On Christmas of each year, the principal mer- 
 chants made choice of Judges for the ensuing year, 
 and at the same time of judges of appeal, and their 
 courts had jurisdiction of all causes that arose out 
 of the custom of the sea, that is, of all maritime 
 causes whatever. Their judgments were carried in- 
 to execution, under proper officers, on all movable 
 property, ships as well as other goods, but an ex- 
 ecution from these courts did not run against 
 land; Ordonnunce de Vahntia, 12S3, c. 1, §§ 22, 23. 
 
 When this species of property came to be of suf- 
 ficient importance, and especially when trade on the 
 sea became gainful and the merchants began to 
 grow rich, their jurisdiction In most maritime states 
 was transferred to a court of admiralty ; and this 
 Is the origin of admiralty jurisdiction. The admiral 
 was originally more a military than a civil officer, 
 for nations were then more warlike than commer- 
 cial; Ordonnance de Louis XIV,, liv. 1; 2 Brown, 
 Civ. & Adm. Law, c. 1. The court had jurisdiction 
 of all national affairs transacted at sea, and partic- 
 ularly of prize; and to this was added jurisdiction 
 of all controversies of a private character that 
 grew out of maritime employment and commerce; 
 and this, as nations grew more commercial, became 
 in the end its most important jurisdiction. 
 
 The admiralty is, therefore, properly the succes- 
 sor of the consular courts, which were emphatically 
 the courts of merchants and sea-going persons. The 
 most trustworthy account of the jurisdiction thus 
 transferred is given in the Ordonnance de Louis 
 XIV., published in 1681. This was compiled under 
 the inspiration of his great minister Colbert, by the 
 most learned men of that age, from information 
 drawn from every part of Europe, and was uni- 
 versally received at the time as an authoritative 
 exposition of the common maritime law; Valin, 
 Preface to his Commentaries ; 3 Kent 16. They 
 have been recognized as authority in maritime 
 causes by the courts of this country, both federal 
 and state ; The Seneca, 3 Wall. Jr. 395, Fed. Cas. 
 No. 12,670; Morgan v. Ins. Co., 4 Dall. (U. S.) 455, 
 1 L. Ed. 907, where Tilghman, C. J., referred to 
 them "not as containing any authority In them- 
 selves but as evidence of the general marine law." 
 The changes made in the Code de Commerce and 
 in the other maritime codes of Europe are unim- 
 portant and inconsiderable. This ordinance de- 
 scribes the jurisdiction of the admiralty courts as 
 embracing all maritime contracts and torts arising 
 from the building, equipment, and repairing of ves- 
 sels, their manning and victualling, the government 
 of their crews and their employment, whether by 
 charter-party or bill of lading, and from bottomry 
 and insurance. This was the general jurisdiction 
 of the admiralty; it took all the consular jurisdic- 
 tion which was strictly of a maritime nature and 
 related to the building and employment of vessels 
 at sea. See Code. 
 
 In English Law. The court of the admiral. 
 
 This court was erected by Edward III. At least 
 so it is affirmed by Blackstone, 3 Com. 69 ; but 
 Judge Story cited Selden as having collected much 
 evidence to carry back the origin of the jurisdic- 
 tion more than two centuries before that, to the time 
 of Henry I.; De Lovio v. Boit, 2 Gall. 398, Fed. Cas. 
 No. 3,776; and Coke, the bitterest enemy of the Ad- 
 miralty, refers to the jurisdiction as "so ancient 
 that its commencement cannot be known" ; 12 Rep. 
 80. The question, however, is merely academic, ex- 
 cept as the jurisdiction of the Continental Courts at 
 the period of its origin may aid in determining the 
 extent and limitations of the early English Court. 
 Authorities are collected in 66 L. R. A. 193, note, to 
 show that Blackstone was mistaken. 
 
 It Is said in Halsbury's Laws of England, § 86, 
 that prior to the Judicature Act of 1873 the seal 
 of the Judicial Committee of the Privy Council, 
 affixed to orders in Admiralty appeals, bears upon 
 
 its face the words "Ab Edjare vindico, thus pic- 
 turesquely suggesting a very ancient origin of ju- 
 risdiction," but whether its origin was in Saxon 
 times or those of Henry I., the jurisdiction of this 
 court in the reign of Edw. III. was 
 It was held by the Lord High Admiral, an 
 called the High Court of Admiralty, or 
 deputy, the Judge of the Admiralty, by which lat- 
 ter officer it has for a time been exclusively 
 It sat as two courts, with separate cornm. 
 known as the Instance Court and the Prize Court, 
 the former of which wa3 commonly intended by the 
 term admiralty. At Its origin the jurisdiction of 
 this court was very extensive, embracing all mari- 
 time matters. By the statutes 13 Rich. II. c. 5, and 
 15 Rich. II. c. 3, especially as explained by the 
 common law courts, Its jurisdiction was much re- 
 stricted; and this restriction was further provided 
 for by the statute of 2 Hen. IV. c. 11, pre; • 
 penalties for wrongfully suing in admiralty, 
 lent and long-continued contest between the ad- 
 miralty and common law courts resulted in the es- 
 tablishment of the restriction which continued with- 
 out interruption, except that abortive efforts were 
 made to compromise the differences between the 
 two jurisdictions, in 1575 and 1C32, until the statutes 
 3 & 4 Vict. c. 65, and 9 & 10 Vict. c. 99, and ut c 
 25 Vict. c. 10, materially enlarged its powers. See 
 
 2 Pars. Mar. Law 479; 1 Kent Lect. XVII ; Smith, 
 Adm. 1; De Lovio v. Boit, 2 Gall. 398, Fed. C 
 3,776; Ramsey v. Allegre, 12 Wheat. (U. S.) Oil, 6 
 L. Ed. 746 ; Bains v. The James, 1 Baldw. 544, Fed. 
 Cas. No. 756 ; Davies 93. This court was abolished 
 by the Judicature Act of 1873, and its functions 
 transferred to the High Court of Justice (Probate, 
 Divorce, and Admiralty Division), with appeal to 
 the Court of Appeal and thence to the House of 
 Lords ; Halsbury, Laws of Eng. 5 93. As to the 
 effect of the early English restriction statutes, see 
 Judge Story's opinion in De Lovio v. Boit, 2 Gall. 
 398, Fed. Cas. No. 3,776, and also the L. R. A. note 
 cited supra, which contains a review of English and 
 American Admiralty jurisdiction. 
 
 For a historical review of the English Admiralty 
 jurisdiction and how it was administered from time 
 to time and the legislation on the subject, see the 
 introduction to Williams & Bruce, Adm. Jur. & 
 Prac. 3d Ed. 
 
 The civil jurisdiction of the court extends 
 to torts committed ou the high seas, includ- 
 ing personal batteries and false representa- 
 tions; 4 C. Rob. Adm. 73; collision of ships: 
 Abbott, Shipp. 230; [1S93] a. C. 46S; Lush. 
 539; restitution of possession from a claim- 
 ant withholding unlawfully; 2 B. & C 244; 
 
 1 Hagg. 81, 240, 342; p. Dods. Adm. 38; 3 
 C. Rob. Adm. 93, 133, 213 ; 4 id. 27.",. 287 ; 6 
 id. 155 ; to dispossess masters ; 4 C. Rob. 
 287; but not when title is to be decide id as 
 between conflicting claims or ownership, in 
 which case the jurisdiction is in the Common 
 Law Courts; 2 Dods. L'S9 ; cases of piratical 
 and illegal taking at sea and contracts of a 
 maritime nature, including suits between 
 part owners; 1 Hagg. 300; 3 id. 299; 1 Ld. 
 Raym. 223; 2 id. vs.;r, : 2 B. & C. 248; for 
 mariners' and officers 1 wages; 2 Ventr. 1S1 ; 
 
 3 Mod. 379; 1 Ld. Raym. 632; 2 id. 1200; 
 
 2 Str. 858, 937; 1 id. 7<>7 ; Swab. SO; 2 Dods. 
 11; master's disbursements for which there 
 is a lien; [190 1 ] P. 422; seaman's suit for 
 wrongful dismissal; L. R. 1 A. & K. >1: 
 pilotage; [1898] P. 36; 2 Hagg. Adm. 326; 
 Abbott. Shipp. 19S, 200; towage; 3 W. Rob. 
 138; 5 P. D. 227 ; bottomry and respondentia 
 bonds; 6 Jur. 241: 3 Hagg. Adm. 66; 3 
 Term 207; 2 Ld. Raym. 982; Rep. temp.
 
 ADMIRALTY 
 
 140 
 
 ADMIRALTY 
 
 Holt, 48; 3 Ch. Rob. 210; 3 Mioo. P. C. C. 
 1; [1S99] P. 295; and by statute to ques- 
 tions of title arising in a bottomry suit; 
 Halsb. L. Eng. Sec. 101 ; and salvage claims ; 
 2 Hagg. Adm. 3; 3 C. Rob. Adm. 355; 1 W. 
 Rob. Adm. 18; [1901] P. 304; id. 243; [1898] 
 P. 179; id. 206; life salvage, if there is some 
 property saved ; 8 P. D. 115 ; damage to 
 cargo; Lush. 458; Br. & L. 102; necessa- 
 ries; [1895] P. 95; 13 P. D. 82. It Las no 
 jurisdiction over an action in personam 
 against a pilot for damages arising from a 
 collision between ships on tbe high seas, 
 due to his negligence; [1S92] 1 Q. B. 273. 
 
 Formerly the remedy in rem could not be 
 enforced beyond the property proceeded 
 against, but when owners appeared in such 
 an action it was said by Sir F. Jeune, that 
 the judgment can be enforced to the full 
 amount although exceeding the value of the 
 property ; [1S92] P. 304 ; [1S99] P. 2S5 ; but 
 see extended comment on these cases in 
 Wms. & Br. Adm. Pr. Introd. 19, where it 
 is pointed out that the point did not arise 
 for decision. 
 
 In Gager v. The A. D. Patchin, 1 Am. L. 
 J. (N. S.) 529, Fed. Cas. No. 5,170, Conk- 
 ling, D. J., said : "But by a long series of 
 American decisions terminating with that in 
 New Jersey Steam Nav. Co. v. Bank, 6 How. 
 (U. S.) 344, 12 L. Ed. 465, the principle is 
 now firmly established that the jurisdiction 
 of the American courts of Admiralty does 
 not depend on the decisions of the English 
 Common Law Courts, relative to the juris- 
 diction of the high court of admiralty of 
 England, but that all contracts in their na- 
 ture strictly maritime are cognizable in the 
 Admiralty." It was a suit in rem for sal- 
 vage and as there was a special agreement, it 
 was objected that it was a mere case of con- 
 tract and not within the admiralty jurisdic- 
 tion, but the decision was otherwise and was 
 aflirmed; The A. D. Patchin, 1 Blatchf. 414, 
 Fed. Cas. No. 87. 
 
 It was therefore not practicable to rest the 
 American jurisdiction upon the English sys- 
 tem and ignore those decisions. The strug- 
 gle in our courts was not so much between 
 the two contentions which had distracted the 
 English courts, as whether the narrow juris- 
 diction finally imposed upon the admiralty 
 in England was that which our Constitution 
 contemplated. While some of our judges 
 contended for this view, the weight of au- 
 thority was finally given to the more logical 
 conclusion that the Admiralty and Maritime 
 jurisdiction which was by the Constitution 
 included within the judicial power of the 
 United States was not limited by the Ad- 
 miralty jurisdiction of England but is to be 
 determined by the general maritime law. 
 
 The criminal jurisdiction of the court was 
 transferred to the Central Criminal Court 
 by the 4 & 5 Will. IV. c. 36. It extended to 
 all crimes and offences committed on the 
 high seas, or within the ebb and flow of the 
 
 tide, and not within the body of a county. A 
 conviction for manslaughter committed on a 
 German vessel, by reason of negligent colli- 
 sion with an English vessel, within two and 
 a half miles of the English coast, whereby 
 a passenger on the English vessel was lost, 
 is not wifhin the jurisdiction of the English 
 criminal courts ; 46 L. J. M. C. 17. 
 
 The first step in the process in a plenary 
 action may be the arrest of the person of 
 the defendant, or of the ship, vessel, or fur- 
 niture; in which cases the defendant must 
 find bail or fidejussors in the nature of bail, 
 and the owner must give bonds or stipula- 
 tions equal to the value of the vessel and 
 her immediate earnings; or the first step 
 may be a monition to the defendant. In 
 1840, the form of proceeding in this court 
 was very considerably changed. The ad- 
 vocates, surrogates, and proctors of the 
 Court of Arches were admitted to practice 
 there ; the proceedings generally were assimi- 
 lated to those of the common-law courts, 
 particularly in respect of the power to take 
 vivd voce evidence in open court; power to 
 compel the attendance of witnesses and the 
 production of papers; to ordering issues to 
 be tried in any of the courts of Nisi Prius, 
 and allowing bills of exception on the trial 
 of such issues, and the grant of power to ad- 
 miralty to direct a new trial of such issues; 
 to make rules of court,' and to commit for 
 contempt The judge may have the assist- 
 ance of a jury, and in suits for collision he 
 usually decides upon his own view of the 
 facts and law, after having been assisted by, 
 and hearing the opinion of, two or more 
 Trinity Brethren. 
 
 A court of admiralty exists in Ireland; 
 but the Scotch court was abolished by 1 
 Will. IV. c. 69. See Elder Brethren. 
 
 In American Law. A tribunal exercising 
 jurisdiction over all maritime contracts, 
 torts, injuries, or offences. 2 Pars. Mar. 
 Law 508. 
 
 After a somewhat protracted contest the jurisdic- 
 tion of admiralty was extended beyond that of the 
 English admiralty court and has been said to be co- 
 equal with that of the English court as defined by 
 the statutes of Rich. II., under the construction 
 given to them by the contemporaneous or immedi- 
 ately subsequent courts of admiralty ; 2 Pars. Mar. 
 Law 508; Bened. Admir. §§ 7, 8. There is early 
 English authority, mainly collected by Judge Story 
 In his famous opinion in De Lovio v. Boit, 2 Gall. 
 398, Fed. Cas. No. 3,776, that the common law courts 
 were wrong when, in their controversy with the 
 admiralty court, they contended for the original 
 narrow limit of the jurisdiction. It would seem, 
 however, to be the more accurate view that the 
 -cases which settled the American jurisdiction estab- 
 lished It not so much upon the basis of any con- 
 struction of the English restraining statutes as up- 
 on the theory that they were not to be recognized 
 as having force in this country, either in Colonial 
 times or after the Revolution. In Waring v. Clarke, 
 5 How. (U. S.) 441, 12 L. Ed. 226, It was held that 
 "the statutes of Richard II. were never in force 
 in any of the colonies, except as they were adopted 
 by the legislatures of some of them." And in a 
 judgment much referred to and commended in sub- 
 sequent cases, Judge Winchester, characterized by 
 Judge Peters as "a distinguished ornament" of his
 
 ADMIRALTY 
 
 141 
 
 ADMIRALTY 
 
 profession, In Stevens v. The Sandwich, 1 Pet. Adm. 
 233 n, was of opinion that "the statutes It & 15 
 Rich. II. have received In England a construction 
 which must at all times prohibit their extension to 
 this country." So Judge Wilson in Kynock v. The 
 Propeller S. C. Ives, Newb. 205, Fed. Cas. No. 7,958, 
 said: "The district courts of the United States, sit- 
 ting as courts of admiralty, are not embarrassed by 
 the restraining statutes of Richard II. and Henry 
 IV., but exercise as large jurisdiction and are 
 governed by the same principles of maritime law as 
 are recognized by the courts of admiralty In the 
 maritime nations of continental Europe." 
 
 It came to be generally conceded that at the time 
 of the Revolution the English admiralty jurisdic- 
 tion was emasculated by the construction put upon 
 the restrictive statutes by the common law courts, 
 but It must likewise be admitted that the decisions 
 of those courts were the paramount law of Eng- 
 land. It was therefore not practicable to rest the 
 American jurisdiction upon the English system and 
 Ignore those decisions. The struggle In our courts 
 was not so much between the two contentions which 
 had distracted the English courts, as whether the 
 narrow jurisdiction finally Imposed upon the admi- 
 ralty court in England was that which our consti- 
 tution contemplated. While some of our judges 
 contended for this view, the weight of authority 
 was finally given to the more logical conclusion 
 that the admiralty and maritime Jurisdiction which 
 was by the constitution Included within the Judicial 
 power of the United States was not limited by the 
 admiralty jurisdiction of England, but is to be de- 
 termined by the recognized principles of the mari- 
 time law which were invoked by Mr. Justice Wash- 
 ington In Davis v. Brig Seneca, 3 Wall. Jr. 395, Fed. 
 Cas. No. 12,670, as having "been respected by mari- 
 time courts of all nations and adopted by most, If 
 not by all of them on the continent of Europe." 
 
 Finally, in a note to The Huntress, 2 Ware (Dav. 
 93) 102, Fed. Cas. No. 6,914, which Is considered an 
 authoritative discussion of the American admiralty 
 Jurisdiction, attention is directed to "contemporane- 
 ous declarations of every branch of the government, 
 and the quiet assent of the people to an unbroken 
 and unvarying practice of more than half a cen- 
 tury, all concurring in one point, that the admiralty 
 and maritime jurisdiction, under the constitution, 
 Is of larger extent than that of the English court 
 of admiralty, and all repudiating the assumption 
 that we are to look to the laws of England for the 
 definition of these terms in the constitution." See 
 De Lovio v. Boit, 2 Gall. 398, Fed. Cas. No. 3,776; 
 The Huntress, 2 Ware (Dav. 93) 102, Fed. Cas. No. 
 6,914; Peele v. Ins. Co., 3 Mas. 23, Fed. Cas. No. 
 10,905 ; Read v. Hull of a New Brig, 1 Sto. 244, 
 Fed. Cas. No. 11,609; Hale v. Ins. Co., 2 Sto. 176, 
 Fed. Cas. No. 5,916; Ramsey v. Allegre, 12 Wheat. 
 (U. S.) 611, 6 L. Ed. 74G; U. S. v. The Sally, 2 Cr. 
 (U. S.) 406, 2 L. Ed. 320; U. S. v. The Betsey, 4 
 Cr. (U. S.) 444, 2 L. Ed. 073; U. S. v. La Vengeance, 
 3 Dall. (U. S.) 297, 1 L. Ed.,610; New Jersey Steam 
 Nav. Co. v. Bank, 6 How. (U. S.) 311, 12 L. Ed. 4G3; 
 Bogart v. The John Jay, 17 How. (U. S.) 399, 15 L. 
 Ed. 95; Minturn v. Maynard, 17 How. (U. S.) 477, 
 15 L. Ed. 235; Ward v. Peck, 18 How. (U. S.) 267, 
 15 L. Ed. 383; Thomas v. Osborn, 19 How. (U. S.) 
 22, 15 L. Ed. 534; Schuchardt v. Babbage, 19 How. 
 (U. S.) 239, 15 L. Ed. 625; Jackson v. The Magnolia, 
 20 How. (U. 8.) 296, 15 L. Ed. 909; Taylor v. Carryl, 
 20 How. 5S3, 15 L. Ed. 1023. 
 
 The court of original admiralty jurisdiction In the 
 United States Is the United States District Court. 
 From this court causes could formerly be removed, 
 in certain cases, to the Circuit and ultimately to 
 the Supreme Court. 
 
 So much of the foregoing as relates to appeals 
 from Circuit and District Courts of the Unite. 1 
 States to the Supreme Court was changed by chap. 
 517, 1 Sup. Rev. Stat*., so that appeals may be taken 
 direct from those courts to the Supreme Court from 
 the final sentences and decrees in prize causes ; in 
 other admiralty cases appeals will now lie from 
 the District Court to the Circuit Court of Appeals, 
 the decision of the latter court being final. la cer- 
 
 tain cases, however, the decisions of the Circuit 
 Courts of Appeals may be reviewed by the Supreme 
 Court, for which see U.^iied States Courts. 
 
 It extends to the navigable rivers of the 
 "United States, whether tidal or not 
 lakes, and the waters connecting them; 
 The Propeller Genesee Chief v. Fif/hugh, 12 
 How. (U. S.) 443, 13 L. Fd. 1058; The 
 Moses Taylor, 4 Wall. (D. S.) 411, 18 L. Ed. 
 397; The Eagle, 8 WalL (U. 8.) 15, 19 L. 
 Ed. 365; The Belfast, 7 Wall. (U. S. I 
 19 L. Ed. 266; Garcia y Leon v. Gal 
 11 Wall. (U. S.) 185, 20 L. Ed. 74; Ameri- 
 can Steamboat Co. v. Chace, 1G Wall. (U. S.) 
 522, 21 L. Ed. 869; Assante v. Bridge Co., 
 40 Fed. 765; to rivers which either alone or 
 with others are highways for commerce with 
 other states or foreign countries; The Dan- 
 iel Ball, 10 WalL (U. S.) 557, 19 L. Ed. 999; 
 U. S. v. Ferry Co., 21 Fed. 332; to a Bl 
 tributary to the lakes, but lying entirely 
 within one state; The General Cass, 1 Brown. 
 Adm. 334, Fed. Cas. No. 5,307; to a ferry 
 boat plying between opposite sides of the 
 Mississippi River; The Gate City, 5 Biss. 
 200, Fed. Cas. No. 5,2G7 ; to a steam ferry- 
 boat to carry railway cars across the E 
 sippi; The St. Louis, 48 Fed. 312; to the 
 Illinois and Lake Michigan Canal ; The Oler, 
 2 Hughes 12, Fed. Cas. No. 10,485; Ex parte 
 Boyer, 109 U. S. G29, 3 Sup. Ct 434, 27 L. 
 Ed. 1056; to the Welland Canal; The Avon. 
 
 I Brown, Adm. 170, Fed. Cas. No. 680; Scott 
 v. The Young America, Newb. 101, Fed 
 
 No. 12,549; to the Erie Canal; The B. Bl 
 McChesney, 8 Ben. 150, Fed. Cas. No. 
 The Robert W. Parsons, 191 U. S. 17, 24 
 Sup. Ct. 8, 48 L. Ed. 73 ; to the Detroit Riv- 
 er, out of the jurisdiction of any par 
 state and within the territorial limits of 
 Canada; U. S. v. Rodgers, 150 U. S. 249, 14 
 Sup. Ct. 109, 37 L. Ed. 1071. But it does 
 not extend to a creek which, though acces- 
 sible from the sea, has no public wharf or 
 terminus for travel; Manigault v. S. M. 
 Ward & Co., 123 Fed. 707; nor to a river 
 which is not of itself a highway for inter- 
 state or foreign commerce; The Montello, 
 
 II Wall. 411, 20 L. Ed. 191. For specific 
 enumeration of certain navigable waters see 
 notes, 48 L. Ed. 74 ; 22 id. 391, and 42 L. R. 
 A. 305. The Judiciary Act of 17S9 (R. S. § 
 563), while conferring admiralty Juris 
 upon the Federal courts, saves to suitors 
 their common-law remedy, which has always 
 existed for damages for collision at sea ; 
 Schoonmaker v. Gilmore, 102 CT. S. 118, 26 
 L. Ed. 95; where a vessel is outside of the 
 territorial limitation of the civil process of a 
 court, jurisdiction by stipulation or consent 
 of the master cannot be obtained for the 
 purpose of a libel t> rem; The Hungaria, 41 
 Fed. 109. 
 
 Admiralty has jurisdiction of a libel by 
 mariners for wages against a vessel plying 
 on navigable waters, even though lying en-
 
 ADMIRALTY 
 
 142 
 
 ADMIRALTY 
 
 tirely within one state; The Sarah Jane, 
 2 Am. L. Rev. 455, Fed. Cas. No. 12,349; but 
 see The Scotia, 3 Am. L, Rev. 610, Fed. Cas. 
 No. 12,518, where the then cases on admiral- 
 ty jurisdiction by reason of locality are 
 fully treated. Also for services as engineer 
 on a tug-boat ; The W. F. Brown, 4G Fed. 290. 
 Its civil jurisdiction extends to cases of 
 salvage; Mason v. The Blaireau, 2 Cr. (U. 
 S.) 240, 2 L Ed. 206 ; American Ins. Co. v. 
 Canter, 1 Pet (U. S.) 511, 7 L. Ed. 242; TJ. 
 S. v. Coombs, 12 Pet. (U. S.) 72, 9 L. Ed. 
 1004; The Louisa Jane, 2 Low. 302, Fed. 
 Cas. No. 8,582; The Roanoke, 50 Fed. 574; 
 McMullin v. Blackburn, 59 Fed. 177; De Le- 
 on v. Leitch, 65 Fed. 1002; bonds of, bottom- 
 ry, respondentia, or hypothecation of ship 
 and cargo; The Ann C. Pratt, 1 Curt. C. C. 
 340, Fed. Cas. No. 409; The Fortitude, 3 
 Sumn; 228, Fed. Cas. No. 4,953; The Aurora, 
 1 Wheat. (U. S.) 96, 4 L Ed. 45; Blaine v. 
 The Charles Carter, 4 Cr. (U. S.) 328, 2 
 L. Ed. 626; The Virgin v. Vyfhius, 8 Pet. 
 (U. S.) 53S, 8 L. Ed. 1036; Carrington v. 
 The Ann C. Pratt, 18 How. (U. S.) 63, 15 
 L. Ed. 267 ; seamen's wages ; The Sarah Jane, 
 
 1 Low. 203, Fed. Cas. No. 12,349; 2 Pars. 
 Mar. Law 509; The Karoo, 49 Fed. 651; 
 Sheppard v. Taylor, 5 Pet. (U. S.) 675, 8 
 L. Ed. 269 ; The Thomas Jefferson, 10 Wheat 
 (U. S.) 428, 6 L Ed. 358; seizures under the 
 laws of impost, navigation, or trade; 1 U. 
 S. Stat, at Large, 76 ; The Lewellen, 4 Biss. 
 156, Fed. Cas. No. 8,307 ; U. S. v. The Queen, 
 11 Blatchf. 416, Fed. Cas. No. 16,108; Two 
 Hundred and Fifty Barrels of Molasses v. 
 U. S., Chase, Dec. 503, Fed. Cas. No. 14,293; 
 The North Cape, 6 Biss. 505, Fed. Cas. No. 
 10,316 ; cases of prize or ransom ; Glass v. 
 The Sloop Betsey, 3 Dall. (Pa.) 6, 1 L. Ed. 
 485; charter-parties; The Volunteer, 1 Sumn. 
 551, Fed. Cas. No. 16,991 ; Certain Logs of 
 Mahogany, 2 Sumn. 589, Fed. Cas. No. 2,559; 
 Arthur v. The Cassius, 2 Sto. 81, Fed. Cas. 
 No. 564 ; Drinkwater v. The Spartan, 1 Ware 
 149, Fed. Cas. No. 4,085; contracts of af- 
 freightment between different states or for- 
 eign ports; The Maggie Hammond, 9 Wall. 
 (U. S.) 449, 19 L. Ed. 772; The Queen of 
 the Pacific, 61 Fed. 213; Church v. Shelton, 
 
 2 Curt. C. C. 271, Fed. Cas. No. 2,714 ; Oakes 
 v. Richardson, 2 Low. 173, Fed. Cas. No. 10,- 
 390; The Reeside, 2 Sumn. 567, Fed. Cas. No. 
 11,657; The Rebecca, 1 Ware 188, Tex. Cas. 
 No. 11,619 ; The Phebe, 1 Ware 263, Fed. Cas. 
 No. 11,0G4; The Paragon, 1 Ware 322, Fed. 
 Cas. No. 10,708; New Jersey Steam Nav. Co. 
 v. Bank, 6 How. (U. S.) 344, 12 L. Ed. 465; 
 and upon a canal-boat without powers of 
 propulsion, upon an artificial canal ; The E. 
 M. McChesney, 21 Int. Rev. Rec. 221, Fed. 
 Cas. No. 4,463; but not to coal barges, not 
 licensed or enrolled ; Wood v. Two Barges, 
 46 Fed. 204; for injury to vessel in passing 
 through a drawbridge over a navigable riv- 
 er ; Assante v. Charleston Bridge Co., 40 Fed. 
 765; Hill v. Board of Chosen Freeholders of 
 
 Essex County, 45 Fed. 260; but not against 
 schooner for damages done to drawbridge; 
 The John C. Sweeney, 55 Fed. 540; but see 
 also, contra, Greenwood v. Town of West- 
 port, 60 Fed. 560; contracts for conveyance 
 of passengers; The New World v. King, 16 
 How. (U. S.) 469, 14 L. Ed. 1019; The Pacif- 
 ic, 1 Blatchf. 569, Fed. Cas. No. 10,643; The 
 Zenobia, 1 Abbott Adm. 4S, Fed. Cas. No. 
 18,208; Walsh v. Wright, 1 Newb. 494, Fed. 
 Cas. No. 17,115; The Hammonia, 10 Ben. 
 512, Fed. Cas. No. 6,006; and suits for loss 
 of their baggage ; Walsh v. Wright, Newb. 494, 
 Fed. Cas. No. 17,115 ; The Priscilla, 106 Fed. 
 739; contracts with material-men; The Gen- 
 eral Smith, 4 Wheat (U. S.) 438, 4 L. Ed. 609 ; 
 The Onore, 6 Ben. 564, Fed. Cas. No. 10,538 ; 
 see People's Ferry Co. v. Beers, 20 How. (U. 
 S.) 393, 15 L. Ed. 961; 21 Bost Law Rep. 
 601 ; jettisons, maritime contributions, and 
 averages; Dike v. The St. Joseph, 6 McLean 
 573, Fed. Cas. No. 3,908; Cutler v. Rae, 7 
 How. (U. S.) 729, 12 L. Ed. 890; Dupont de 
 Nemours v. Vance, 19 How. (U. S.) 162, 15 
 L. Ed. 584 ; 21 Bost. Law Rep. 87, 96 ; pilot- 
 age; The Anne, 1 Mas. 508, Fed. Cas. No. 
 412; Hobart v. Drogan, 10 Pet (TJ. S.) 108, 
 9 L. Ed. 363 ; Cooley v. Board of Wardens of 
 Port of Philadelphia, 12 How. (U. S.) 299, 
 13 L. Ed. 996; see Wave v. Hyer, 2 Paine, 
 C. C. 131, Fed. Cas. No. 17,300; Gibbons v. 
 Ogden, 9 Wheat. (U. S.) 1, 207, 6 L. Ed. 23; 
 Ex parte McNiel, 13 Wall. (XL S.) 236, 20 
 L. Ed. 624; The America, 1 Low. 177, Fed. 
 Cas. No. 289; The California, 1 Sawy. 463, 
 Fed. Cas. No. 2,312 ; Low v. Com'rs of Pilot- 
 age, R. M. Charlt (Ga.) 302, 314; Smith v. 
 Swift, 8 Mete. (Mass.) 332; 4 Bost. Law Rep. 
 20; contracts for wharfage; Ex parte East- 
 on, 95 TJ. S. 68, 24 L. Ed. 373; The Kate 
 Tremaine, 5 Ben. 60, Fed. Cas. No. 7,622; 
 Banta v. McNeil, 5 Ben. 74, Fed. Cas. No. 
 966; The J. H. Starin, 15 Blatchf. 473, Fed. 
 Cas. No. 7,320; Upper Steamboat Co. v. 
 Blake, 2 D. C. App. 51 ; to injuries to a ves- 
 sel by reason of a defective dock ; Ball v. 
 Trenholm, 45 Fed. 588; but not to injuries 
 to wharves; The Ottawa, 1 Brown, Adm. 
 356, Fed. Cas. No. 10,616 ; contracts for tow- 
 age ; The* W. J. Walsh, 5 Ben. 72, Fed. Cas. 
 No. 17,922 ; surveys of ship and cargo ; Story, 
 Const. § 1665 ; The Tilton, 5 Mas. 465, Fed. 
 Cas. No. 14,054 ; Janney v. Ins. Co., 10 
 Wheat. (U. S.) 411, 6 L. Ed. 354; but see 
 2 Pars. Mar. Law 511, n. ; and generally to 
 all assaults and batteries, damages, and tres- 
 passes, occurring on the high seas ; 2 Pars. 
 Mar. Law; see Thomas v. Lane, 2 Sumn. 1, 
 Fed. Cas. No. 13,902; The Sea Gull, Chase, 
 Dec. 145, Fed. Cas. No. 145 ; Chase, Dec. 150, 
 Fed. Cas. No. 6,477 ; The Normannia, 62 Fed. 
 469; Jervey v. The Carolina, 66 Fed. 1013; 
 but not where the injury was received on 
 land though the wrongful action was done 
 on ship; The Mary Garrett, 63 Fed. 1009; 
 Price v. The Belle of the Coast, 66 Fed. 62; 
 The Haxby, 95 Fed. 170 ; or where the origin
 
 ADMIRALTY 
 
 143 
 
 ADMIRALTY 
 
 of the wrong is on the water but the sub- 
 stance or consummation of the injury on 
 land; The Plymouth, 3 Wall. (U. S.) 20, 18 
 L. Ed. 125; Ex parte Phenix Ins. Co., 118 
 U. S. 610, 7 Sup. Ct 25, 30 L. Ed. 274 ; John- 
 son v. Elevator Co., 119 U. S. 388, 7 Sup. Ct 
 254, 30 L. Ed. 447 ; Cleveland T. & V. R. Co. 
 v. Steamship Co., 208 U. S. 316, 28 Sup. Ct 
 414, 52 L. Ed. 508, 13 Ann. Cas. 1215; The 
 Troy, 208 U. S. 321, 28 Sup. Ct 416, 52 L. 
 Ed. 512; and see The Blackheath, 195 U. S. 
 361, 25 Sup. Ct 46, 49 L. Ed. 236 ; for injury 
 to seamen in consequence of negligence of 
 master or owner; The A. Heaton, 43 Fed. 
 592 ; Grimsley v. Hankins, 46 Fed. 400 ; con- 
 tract for supplies to a vessel; The Electron, 
 48 Fed. 689 ; The Ella, 4S Fed. 569 ; but see 
 The H. E. Willard, 53 Fed. 599; Diefenthal 
 v. Hamburg-Amerikanische Packetfahrt Ac- 
 tien-Gesellschaf t, 46 Fed. 397 ; and to enforce 
 a lien for repairs on a canal boat in a dry 
 dock ; The Robert W. Parsons, 191 U. S. 17, 
 24 Sup. Ct 8, 48 L. Ed. 73 ; but not for sup- 
 plies to a pile-driver; Pile Driver E. O. A., 
 69 Fed. 1005 ; for labor and material in com- 
 pleting and equipping a new vessel after she 
 has been launched and named ; The Manhat- 
 tan, 46 Fed. 797 ; but not to contracts to pro- 
 cure insurance; Marquardt v. French, 53 
 Fed. 603 ; for insurance premium ; The Daisy 
 Day, 40 Fed. 603 ; nor to reform a policy of 
 marine insurance ; Williams v. Ins. Co., 56 
 Fed. 159. It also includes actions for dam- 
 ages for death caused by collision on naviga- 
 ble waters; The City of Norwalk, 55 Fed. 
 98 ; and for injury to a seaman from the ex- 
 plosion of a steamtug boiler due to negli- 
 gence; Grimsley v. Hankins, 46 Fed. 400; 
 or to a laborer, working in the hold of a 
 vessel, from a piece of timber sent without 
 warning down a chute by a person working 
 on a pier; Hermann v. Mill Co., 69 Fed. 646. 
 It extends to a bath-house built on boats but 
 designed for transportation; The Public 
 Bath No. 13, 61 Fed. 692. 
 
 With respect to the cases in which the 
 cause of action arises partly on shipboard 
 and partly on land, the admiralty jurisdic- 
 tion of the United States is much more liber- 
 al than that of England, and the different 
 classes of cases are enumerated in the opin- 
 ion of Thomas, D. J., in The Strabo, 90 Fed. 
 110, where he lays down what seem to be the 
 settled principles as to the jurisdiction with 
 respect to maritime torts. 
 
 (1) Where the cause arises on the ship 
 and is communicated to the property on 
 land, as fire; The Plymouth, 3 Wall. (U. S.) 
 20, 18 L. Ed. 125; Ex parte Phenix Ins. Co., 
 118 U. S. 610, 7 Sup. Ct. 25, 30 L. Ed. 274 ; 
 when missives are sent from the ship and 
 take effect elsewhere; U. S. v. Davis, 2 
 Sumn. 482, Fed. Cas. No. 14,932; The Ep- 
 silon, 6 Ben. 378, Fed. Cas. No. 4,506 ; where 
 some part of the ship comes in contact with 
 the land to the injury of persons or proper- 
 ty ; Johnson v. Elevator Co., 119 U. S. 388, 
 
 7 Sup. Ct 254, 30 L. Ed. 447; The Maud 
 Webster, 8 Ben. 547, Fed. Cas. N< 9,302; 
 and herein where the vessel does d to 
 
 wharves ; The C. Accame, 20 Fed. 642 ; ; 
 er Ramsdell T. Co. v. Compagnie Generate 
 Transatlantique, 63 Fed. 845 ; also where 
 material discharged from a ship con. 
 contact with persons on land ; The Biai 
 rett, 63 Fed. 1009; see also Price v. The 
 Belle of the Coast, 60 Fed. 62. In all 
 under this class there is no jurisdiction, the 
 injured person or thing being on the land 
 when the negligent act operates upon him 
 or it. 
 
 (2) Cases where the primal cause a 
 on land and is injuriously communicated to 
 the ship, as structures wrongfully maintain- 
 ed and interrupting navigation ; Atlee v. 
 Packet Co., 21 Wall. (U. S.) 3S9, 22 L. Ed. 
 619; The Maud Webster, 8 Ben. 547, Fed. 
 Cas. No. 9,302; Greenwood v. Town of West- 
 port, 60 Fed. 560; Oregon City Transp. Co. 
 v. Bridge Co., 53 Fed. 549; City of Boston 
 v. Crowley, 38 Fed. 202, 204; The Ark. 
 17 Fed. 383 ; where material discharged from 
 the land into the ship does injury to persons 
 on the ship ; Hermann v. Mill Co., C.9 Fed. 
 646. In this class admiralty has jurisdiction. 
 The case of The H. S. Pickands, 42 Fed. 239, 
 was said to be different from those last men- 
 tioned, the injury to the libellant being caus- 
 ed by the falling of a ladder against the side 
 of the ship, and there was held to be no ju- 
 risdiction since the negligence was an act 
 done on the wharf; but in The Strabo, 98 
 Fed. 998, 39 C. C. A. 375. a fall from a lad- 
 der was caused by its being negligently left 
 fastened from the rail of the vessel so that 
 libellant was thrown to the wharf and in- 
 jured, and there was jurisdiction. The ulti- 
 mate authority to which all cases referred 
 was that of The Plymouth, 3 Wall. (U. S.) 
 20, 18 L. Ed. 125, cited supra. In The Mary 
 Stewart, 10 Fed. 137, it was said that there 
 must be two ingredients, the wrong on the 
 water and the damage resulting, both of 
 which must concur to constitute a maritime 
 cause. This was criticized in City of Mil- 
 waukee v. The Curtis, 37 Fed. 705, where it 
 was said that "it suffices if the damage, the 
 substantial cause of action arising out of the 
 wrong, is complete upon navigable waters.*' 
 So in Hermann v. Mill Co., 69 Fed. 640. cited 
 supra, it was thought that the langua 
 The Mary Stewart. 10 Fed. 137, was too 
 broad. It is said that the proper solution of 
 the question of Jurisdiction "is to ascertain 
 the place of the consummation and substance 
 of the injury." 
 
 There is no Jurisdiction in Admiralty to 
 administer relief as courts of equity, and an 
 executory contract for the purchase of a 
 vessel could not he enforced ; Kynoch v. The 
 S. C. Ives, Newb. 205, Fed. Cas. No. 7,1 
 
 The jurisdiction may be invoked by one of 
 two vessels, both held in fault for collision. 
 to enforce contribution against the other*
 
 ADMIRALTY 
 
 144 
 
 ADMISSIONS 
 
 Erie R. Co. v. Transp. Co., 204 U. S. 220, 27 
 Sup. Ct. 246, 51 L. Ed. 450. 
 
 The jurisdiction extends to all maritime 
 torts, q. v., and as to maritime contracts, see 
 that title. 
 
 Its criminal jurisdiction extends to all 
 crimes and offences committed on the high 
 seas or beyond the jurisdiction of any coun- 
 try. The criminal jurisdiction of the United 
 States courts is extended to the Great Lakes 
 by 26 St. L. 424. The open waters of the 
 Great Lakes are high seas within the mean- 
 ing of R. S. § 5346; U. S. v. Rodgers, 150 
 U. S. 249, 14 Sup. Ct. 109, 37 L. Ed. 1071. 
 See Jurisdiction. 
 
 A civil suit is commenced by riling a libel, 
 upon which a warrant for arrest of the per- 
 son, or attachment of his property if he 
 cannot be found, even though in the hands 
 of third persons, or a simple monition to 
 appear, may issue; or, in suits in rem, a 
 warrant for the arrest of the thing in ques- 
 tion ; or two or more of these separate pro- 
 cesses may be combined. Thereupon bail 
 or stipulations are taken if the party offer 
 them. 
 
 , In most cases of magnitude, oral evidence 
 is not taken ; but it may be taken, and it is 
 the general custom to hear it in cases where 
 smaller amounts are involved. The decrees 
 are made by the court without the interven- 
 tion of a jury. 
 
 A suit in rem and a suit in personam may 
 be brought concurrently in the same court, 
 when arising on the same cause of action; 
 The Normandie, 40 Fed. 590; The Baracoa, 
 44 Fed. 102. 
 
 In criminal cases the proceedings are 
 similar to those at common law. 
 
 See Unwed States Courts; Bottomrt; 
 Salvage; Collision; Court of Lord High 
 Admiral ; Courts of England ; Elder Breth- 
 ren ; Abandonment ; Maritime Cause. 
 
 ADMIRALTY, FIRST LORD OF THE. 
 
 At the head of the British Navy are five 
 Lords Commissioners. The First Lord is a 
 member of the Cabinet, the others are called 
 Sea Lords. 
 
 ADMISSIBLE. Pertinent and proper to 
 be considered in reaching a decision. Used 
 with reference to the issues to be decided in 
 any judicial proceeding. 
 
 ADMISSION (Lat. ad, to, mittere, to 
 send). The act by which attorneys and 
 counsellors become recognized as officers of 
 the court and are allowed to practise. The 
 qualifications required vary widely in the 
 different states. See Attorney. 
 
 ADMISSIONS. Confessions or voluntary 
 acknowledgments made by a party of the ex- 
 istence of certain facts. 
 
 As distinguished from confessions, the term is ap- 
 plied to civil transactions and to matters of fact in 
 criminal cases where there is no criminal intent. 
 
 As distinguished from consent, an admission may 
 
 be said to be evidence furnished by the party's own 
 act of his consent at a previous period. 
 
 Direct, called also express, admissions are 
 those which are made in direct terms. 
 
 Implied admissions are those which re- 
 sult from some act or failure to act of the 
 party. 
 
 Incidental admissions are those made in 
 some other connection, or involved in the 
 admission of some other fact 
 
 As to the parties by whom admissions 
 must have been made to be considered as 
 evidence: — 
 
 Thej r may be made by a party to the rec- 
 ord, or by one identified in interest with 
 him ; 9 B. & C. 535 ; Morris' Lessee v. Van- 
 deren, 1 Dall. (U. S.) 65, 1 L. Ed. 38. Not, 
 however, where the party of record is mere- 
 ly a nominal party and has no active inter- 
 est in the suit; 1 Campb. 392; 3 B. & C. 
 421 ; Appleton v. Boyd, 7 Mass. 131 ; Head v. 
 Shaver, 9 Ala. 791; Frear v. Evertson, 20 
 Johns. (N. Y.) 142; Owings v. Low, 5 Gill & J. 
 (Md.) 134; nor by one of several devisees on 
 a contest of a will for incapacity and undue 
 influence ; O'Connor v. Madison, 98 Mich. 1S3, 
 57 N. W. 105. 
 
 They may be made by one of several hav- 
 ing a joint interest, so as to be binding upon 
 all; 8 B. & C. 36; Hunt v. Bridgham, 2 
 Pick. (Mass.) 5S1, 13 Am. Dec. 458 ; Beitz v. 
 Fuller, 1 McCord (S. C.) 541, 10 Am. Dec. 
 693; Patterson v. Choate, 7 Wend. (N. Y.) 
 441 ; Bound v. Lathrop, 4 Conn. 336, 10 Am. 
 Dec. 147 ; Getchell v. Heald, 7 Greenl. (Me.) 
 26; Owings v. Low, 5 Gill & J. (Md.) 144; 
 Van Reimsdyk v. Kane, 1 Gall. 635; Fed. 
 Cas. No. 16,872. Mere community of interest, 
 however, as in case of coexecutors ; 1 Greenl. 
 Ev. § 176; Hammon v. Huntley, 4 Cow. (N. 
 Y.) 493; James v. Hackley, 16 Johns. (N. Y) 
 277; trustees; 3 Esp. 101; co-tenants; Dan 
 v. Brown, 4 Cow. (N. Y.) 4S3, 15 Am. Dec. 
 395; Smith v. Vincent, 15 Conn. 1, 3S Am. 
 Dec. 59 ; is not sufficient. Admissions of 
 one of several defendants against his inter- 
 ests will be receivable in evidence against 
 him only; Kiser v. Dannenberg, S8 Ga. 541, 
 15 S. E. 17. 
 
 The interest in all cases must have sid> 
 sisted at the time of making the admissions ; 
 2 Stark. 41; Plant v. McEweu, 4 Conn. 544; 
 Packer's Lessee v. Gonsalus, 1 S. & R. (Pa.) 
 526. Admissions made by one subsequently 
 appointed administratrix are not admissible 
 against her when suing as such nor against 
 her successor in office; Gooding v. Ins. Co., 
 46 111. App. 307; More v. Finch, 65 Hun 404, 
 20 N. Y. Supp. 164. An admission of debt by 
 an executor does not bind the estate ; Orr's 
 Appeal, 7 W. N. C. (Pa.) 126. 
 
 They may be made by any person inter- 
 ested in the subject-matter of the suit, 
 though the suit be prosecuted in the name 
 of another person as a cestui que trust; 1 
 Wils. 257; 1 Bingh. 45; but see 3 N. & P.
 
 ADMISSIONS 
 
 145 
 
 ADMISSIONS 
 
 598 ; 6 M. & G. 261 ; or by an indemnifying 
 creditor in an action against the sheriff ; 7 
 C. & P. 629. 
 
 They may be made by a third person, a 
 stranger to the suit, where the issue is sub- 
 stantially upon the rights of such a person 
 at a particular time; 1 Greenl. Ev. § 1S1 ; 
 or one who has been expressly referred to 
 for information ; 3 O. & P. 532 ; or where 
 there is a privity as between ancestor and 
 heir; 5 B. & Ad. 223; assignor and assignee; 
 Inhabitants of West Cambridge v. Inhab- 
 itants of Lexington, 2 Pick. (Mass.) 536; Lit- 
 tle v. Libby, 2 Greenl. (Me.) 242, 11 Am. Dec. 
 68; Gibblehouse v. Strong, 3 Rawle (Pa.) 437; 
 Snelgrove v. Martin, 2 McCord (S. C.) 241; 
 Smith v. Martin, 17 Conn. 399 ; intestate and 
 administrator; 1 Taunt. 141; grantor and 
 grantee of land ; Jackson v. Bard, 4 Johns. 
 (N. Y.) 230, 4 Am. Dec. 267 ; Norton v. Petti- 
 bone, 7 Conn. 319, 18 Am. Dec. 116; Weid- 
 man v. Kohr, 4 S. & R. (Pa.) 174 ; and oth- 
 ers. Letters written by a third person at de- 
 fendant's request about the matter in con- 
 troversy, are admissible; Holley v. Knapp, 
 45 111. App. 372. Statements by a third per- 
 son used by a party are evidence against him 
 as admissions in a subsequent controversy; 
 4 Best & S. 641. 
 
 They" may be made by an agent, so as to" 
 bind the principal; Steph. Ev. 17; declara- 
 tions of an architect to the contractor in di- 
 recting operations are admissible against the 
 owner in an action for price of work and 
 material ; Wright v. Reusens, 133 N. Y. 29S, 
 31 N. E. 215 ; so far only, however, as the 
 agent has authority ; Western Union Tele- 
 graph Co. v. Way, 83 Ala. 542, 4 South. 844 ; 
 Barry v. Insurance Co., 62 Mich. 424, 29 N. 
 W. 31; Ruggles v. Insurance Co., 114 N. Y. 
 415, 21 N. B. 1000, 11 Am. St. Rep. 674 ; and 
 not, it would seem, in regard to past trans- 
 actions ; 11 Q. B. 46 ; Haven v. Brown, 7 
 Greenl. (Me.) 421, 22 Am. Dec. 208; Thall- 
 himer v. Brinekerhoff, 4 Wend. (N. Y.) 394, 
 21 Am. Dec. 155; City Bank of Baltimore v. 
 Bateman, 7 Harr. & J. (Md.) 104; Parker v. 
 Green, 8 Mete. (Mass.) 142. Declarations of 
 an agent not in the course of the business of 
 the agency, will not prove agency or ratifi- 
 cation ; Ransom v. Duckett, 48 111. App. 659. 
 One cannot prove agency by the declarations 
 of an alleged agent only; Sier v. Bache, 7 
 Misc. 165, 27 N. Y. Supp. 255; nor will acts 
 and conduct of an alleged agent not ac- 
 quiesced in by the principal, establish agen- 
 cy ; Martin v. Suber, 39 S. C. 525, IS S. E. 
 125. 
 
 The admissions of the wife bind the hus- 
 band so far only as she has authority in the 
 matter ; 1 Carr. & P. 621 ; and so the formal 
 admissions of an attorney bind his client ; 7 
 C. & P. 6; but not a necessarily fatal ad- 
 mission unintentionally made; Nesbitt v. 
 Turner, 155 Pa. 429, 26 Atl. 750; nor when 
 not within the scope of his authority ; Lewis 
 v. Duane, 69 Hun 28, 23 N, Y. Supp. 433; and 
 Bouv.— 10 
 
 see 2 C. & K. 210; 3 C. B. 608. Declara- 
 tions of a husband in the absence of hi 
 are not admissible to affect the title ot his 
 wife to personal property ; Leedom v. Lee- 
 dom, 160 Pa. 273, 28 Atl. 1024 ; nor will his 
 admissions affect the wife's separate estate; 
 Clapp v. Engledow, 82 Tex. 290, 18 S. W. 146. 
 See Evidence. 
 
 Implied admissions may result from assum- 
 ed character ; 1 B. & Aid. 677 ; from con- 
 duct; 6 C. & P. 241; Tilgham v. Fisber, 9 
 Watts (Pa.) 4-il ; from acquiescence, which is 
 positive in its nature; Carter v. Bennett, 4 
 Fla. 340; from possession of documents in 
 some cases; 5 C. & I*. 75 ; 25 State Tr. 120. 
 
 The omission to answer a letter is not ev- 
 idence of the truth of statements made in 
 the letter; see 16 Cyc. 960. 
 
 In civil matters, constraint will not avoid 
 admissions, if imposition or fraud were not 
 made use of. 
 
 Admissions of one in possession of lands, 
 made to others than the owner, are to be 
 considered in determining whether his pos- 
 session is adverse to the owner; Lochausen 
 v. Laughter, 4 Tex. Civ. App. 291, 23 S. \V. 
 513. 
 
 Judicial admissions; 2 Cainpb. 341; Boy- 
 den v. Moore, 5 Mass. 365; Jones v. Hoar, 5 
 Pick. (Mass.) 2S5 ; those whicb have been 
 acted on by otbers ; Commercial Bank v. 
 King, 3 Rob. (La.) 243; Kinney v. Farns- 
 worth, 17 Conn. 355; 13 Jur. 253; and those 
 contained in deeds as between parties and 
 privies ; Crane v. Morris, 6 Pet. (U. S.) 611. 
 8 L. Ed. 514; are conclusive evidence against 
 the party making them. 
 
 Declarations and admissions are admis- 
 sible to prove partnership, if made by al- 
 leged partners; Schulberg v. Gutterman, 8 
 Misc. 502, .28 N. Y. Supp. 763; admission of 
 one that he is in partnership with anotht ;\ is 
 not binding on tbe latter; Bank of Osceola 
 v. Outhwaite. 50 Mo. App. 124. 
 
 It frequently occurs in practice, that, in 
 order to save expenses as to mere formal 
 proofs, the attorneys on each side consent 
 to admit, reciprocally, certain facts in the 
 cause without requiring proof of them. 
 These are usually reduced to writing, 
 admissions are in general conclusive; 1 Gr. 
 Ev. § 186, 205; Holley v. Young, <;s Me. 215, 
 28 Am. Rep. 40; Woodcock v. Ciry of Calais, 
 '68 Me. 244; Marsh v. Mitchell. 26 X. J. Eq. 
 497; Perry v. Mfg. Co., 40 Conn. 313; l 
 Camp. 139; 1 M. & W. 507; and may be used 
 in evidence on a new trial: State v. Bryan, 
 3 Gill (Md.) 389; Merchants' Bank v. Bank. 
 3 Gill (Md.) 96, 43 Am. Dec. 300; Fanners" 
 Bank v. Sprigg, 11 Md. 389; Elwood v. Lan- 
 nons Lessee, 27 Md. 209; 5 C. & P. 3S6; 
 but may be withdrawn if Improvidently 
 made, but only in a dear case of mistake; 
 1 Gr. Ev. § 206: Marsh v. Mitchell. 20 N. J. 
 Eq. 501 ; and on timely notice ; Hanrroves 
 v. Redd, 43 Ga. 150; 5 C. & P. 3S6 ; and up- 
 on leave granted in the exercise of a sound
 
 ADMISSIONS 
 
 146 
 
 ADMITTANCE 
 
 discretion; Perry v. Mfg. Co., 40 Conn. 313; 
 7 id. Q; but not after the position of the par- 
 ties has been changed, as by the death of a 
 party or witness ; Wilson v. Bank, 55 Ga. 98. 
 
 Admissions against interest in a bill in 
 equity cannot be used as such in another 
 case ; Gresl. Eq. Ev. 323 ; Wigm. Evid. § 1065. 
 
 As to admissions during negotiations for 
 a compromise, see Compromise. 
 
 In Pleading. The acknowledgment or rec- 
 ognition by one party of the truth of some 
 matter alleged by the opposite party. 
 
 In Equity. 
 
 Partial admissions are those which are 
 delivered in terms of uncertainty, mixed 
 up with explanatory or qualifying circum- 
 stances. 
 
 Plenary admissions are those which ad- 
 mit the truth of the matter without qualifi- 
 cation, whether it be asserted as from in- 
 formation and belief or as from actual 
 knowledge. 
 
 At Law. 
 
 In all pleadings in confession and avoid- 
 ance, admission of the truth of the opposite 
 party's pleading is made. Express admis- 
 sions may be made of matters of fact only. 
 
 The usual mode of making an express ad- 
 mission in pleading is, after saying that the 
 plaintiff ought not to have or maintain his 
 action, etc., to proceed thus, "Because he 
 says that, although it be true that," etc., re- 
 peating such of the allegations of the ad- 
 verse party as are meant to be admitted ; 
 Lawes, Civ. PI. 143, 144. See 1 Chitty, PI. 
 600; Archb. Civ. PI. 215. 
 
 Pleadings which have been withdrawn 
 from a court of law may be offered in evi- 
 dence subject to explanation, to prove ad- 
 missions of the pleader: Soaps v. Eichberg, 
 42 111. App. 375 ; but admissions contained in 
 an original answer are not conclusive, where 
 an amended answer has been filed excluding 
 such matter; Baxter v. R. Co. (Tex.) 22 S. 
 W. 1002. The plea of the general issue ad- 
 mits the corporate existence of the plaintiff 
 corporation; Bailey v. Bank, 127 111. 332, 19 
 N. E. 695. In many states, in a suit against 
 a firm or corporation, the partnership or cor- 
 porate existence is taken as admitted unless 
 denied by affidavit filed with the plea. Where 
 complainant sets a plea down for argument, 
 he admits its truth, but denies its sufficiency ; 
 Burrell v. Haekley, 35 Fed. 833. Allegations 
 of the complaint not denied by the answer 
 are to be taken as true ; Robertson v. Per- 
 kins, 129 U. S. 233, 9 Sup. Ct 279, 32 L Ed. 
 686. Where two defences are set up, a de- 
 nial in one is qualified by an admission in 
 the other ; Northern Pac. R. Co. v. Paine, 
 119 U. S. 564, 7 Sup. Ct. 323, 30 L. Ed. 513. 
 See Confession and Avoidance. 
 
 ADMITTANCE. The act of giving posses- 
 sion of a copyhold estate. It is of three 
 kinds: namely, upon a voluntary grant by 
 the lord, upon a surrender by the former 
 
 tenant, and upon descent 2 Bla. Com. 366. 
 See Copyhold. 
 
 AD MITTEN DO CLERIC0. An old Eng- 
 lish writ issuing to the bishop to establish 
 the right of the Crown to make a presenta- 
 tion to a benefice. 
 
 ADMITTENDO IN S0CIUM. A writ as- 
 sociating certain persons to justices of as- 
 size. CowelL 
 
 ADM0NITI0 TRINA. The three fold 
 warning given to a prisoner who stood mute, 
 before he was subjected to peine forte et 
 dure (q. v.). 
 
 ADMONITION. A reprimand from a judge 
 to a person accused, on being discharged, 
 warning him of the consequences of his con- 
 duct, and intimating to him that, should he 
 be guilty of the same fault for which he has 
 been admonished, he will be punished with 
 greater severity. Merlin, Re'pert. The ad- 
 monition was authorized as a species of pun- 
 ishment for slight misdemeanors. 
 
 AD N EPOS. The son of a great-great- 
 grandson. Calvinus, Lex. 
 
 ADNEPTIS. The daughter of a great- 
 great-granddaughter. Calvinus, Lex. 
 
 ADN0TATI0 (Lat notare). A subscrip- 
 tion or signing. 
 
 In the civil law, casual homicide was excused by 
 the indulgence of the emperor, signed with his own 
 sign-manual, called adnotatio ; Code, 9. 16. 5; 4 
 Bla. Com. 187. See Rescript. 
 
 ADOLESCENCE. That age which fol- 
 lows puberty and precedes the age of ma- 
 jority. It commences for males at fourteen, 
 and for females at twelve years completed, 
 and continues until twenty-one years com- 
 plete. Wharton. 
 
 ADOPTION. The act by which a person 
 takes the child of another into his family, 
 and treats him as his own. 
 
 A juridical act creating between two per- 
 sons certain relations, purely civil, of pater- 
 nity and filiation. 6 Demolombe, § 1. 
 
 Adoption was practised in the remotest antiquity. 
 Cicero asks, "Quod est jus adoptionis? nempe ut is 
 adoptet, qui neque procreare jam liberos possit, et 
 cum potuerit, sit expertus." At Athens, he who had 
 adopted a son was not at liberty to marry without 
 the permission of the magistrates. Gaius, Ulpian, 
 and the Institutes of Justinian only treat of adop- 
 tion as an act creating the paternal power. Orig- 
 inally, the object of adoption was to introduce a 
 person into the family and to acquire the paternal 
 power over him. The adopted took the name of the 
 adopter, and only preserved his own adjectively, as 
 Scipio Mmilianus ; Ccesar Octavianus, etc. Accord- 
 ing to Cicero, adoptions produced the right of suc- 
 ceeding to the name, the property, and the lares: 
 "hereditates nominis, pecuniae, sacrorum secutce 
 sunt;" Pro Dom. § 13. 
 
 The first mode of adoption was In the form of a 
 law passed by the comitia curiata. Afterwards, it 
 was effected by the mancipatio, alienatio per ces et 
 libram, and the in jure cessio ; by means of the 
 first the paternal authority of the father was dis- 
 solved, and by the second the adoption was complet- 
 ed. The mancipatio was a solemn sale made to the 
 emptor in presence of five Roman citizens (who rep- 
 resented the five classes of the Roman people), and
 
 ADOPTION 
 
 147 
 
 ADOPTION 
 
 a libripens, or scalesman, to weigh the piece of 
 copper -which represented the price. By this sale 
 the person sold became subject to the mancipium of 
 the purchaser, who then emancipated him ; where- 
 upon he fell again under the paternal power ; and 
 in order to exhaust it entirely it was necessary to 
 repeat the mancipatio three times: si pater fllium 
 ter venumdabit, filius a patre liber esto. After the 
 paternal power was thus dissolved, the party who 
 desired to adopt the son instituted a fictitious suit 
 against the purchaser who held him in mancipium, 
 alleging that the person belonged to him or was 
 subject to his paternal power ; the defendant not 
 denying the fact, the praetor rendered a decree ac- 
 cordingly, which constituted the cessio in jure, and 
 completed the adoption. Adoptantur autem, cum 
 a parente in cujus potestate sunt, tertia mancipa- 
 tions in jure ccduntur, atque ab eo, qui adoptat, 
 apud eum apud quern legis actio est, vindicantur ; 
 Gell. 5. 19. 
 
 Towards the end of the Republic another mode of 
 adoption had been introduced by custom. This was 
 by a declaration made by a testator, in his will, that 
 he considered the person whom he wished to adopt 
 as his son: In this manner Julius CsBsar adopted 
 Octavius. 
 
 It is said that the adoption of which we have been 
 speaking was limited to persons alieni juris. But 
 there was another species of adoption, called adro- 
 gation, which applied exclusively to persons who 
 were sui juris. By the adrogation a pater- familias, 
 with all who were subject to his patria potestas, as 
 well as his whole estate, entered into another fam- 
 ily, and became subject to the paternal authority of 
 the chief of that family. Quce species adoptionis 
 dicitur adrogatio, quia et is qui adoptat rogatur, id 
 est interrogatur, an velit eum quern adopturus sit 
 justum sibi filium esse; et is, qui adoptatur roga- 
 tur an id fieri patiatur ; et populus rogatur an id 
 fieri jubeat; Gaius, 1. 99. The formulae of these in- 
 terrogations are in Aul. Gell. (see Hunter, Rom. 
 Law 205): "Velitis, jubeatis, Quirites, uti L. Va- 
 lerius L. Titio tarn jure legeque filius sibi siet, 
 quam si ex eo patre matreque familias ejus natus 
 esset, utique ei vita necisque in eo potestas siet 
 uti pariendo filio est; hoc ita ut dixi vos, Quirites, 
 rogo." This public and solemn form of adoption 
 remained unchanged, with regard to adrogation, 
 until the time of Justinian: up to that period it 
 could only take place populi auctoritate. Accord- 
 ing to the Institutes, 1. 11. 1, adrogation took place 
 by virtue of a rescript of the emperor, — principali 
 rescripto, which only issued causa cognita; and the 
 ordinary adoption took place in pursuance of the 
 authorization of the magistrate, — imperio magistra- 
 tus. The effect of the adoption was also modified 
 in such a manner, that if a son was adopted by a 
 stranger, extranea persona, he preserved all the 
 family rights resulting from his birth, and at the 
 same time acquired all the family rights produced 
 by the adoption. 
 
 There is no law of adoption in Scotland; 
 Bell's Diet. ; nor in England. In the latter 
 country any renunciation by parents of their 
 legal rights and liabilities is a mere empty 
 form ; [1901] 2 K. B. 3S5 ; 3 M. & G. 547. 
 
 In the United States, adoption exists only 
 by statute; In re Thome, 155 N. Y. 140, 49 
 N. E. 661; Ballard v. Ward, 89 Pa. 358. One 
 of the first states to introduce it was Mas- 
 sachusetts in 1851; Ross v. Ross, 129 Mass. 
 243, 37 Am. Rep. 321. Its object is to change 
 the succession of property and to create re- 
 lations of paternity and affiliation not be- 
 fore existing; Morrison v. Sessions' Estate, 
 70 Midi. 297, 38 N. W. 249, 14 Am. St. Rep. 
 500. In Louisiana it was abolished by the 
 Code of 1S08, art. 35, p. 50. See Vidal v. 
 Commagere, 13 La. Ann. 517, but the right 
 has since been restored ; Civ. Code 1870, 
 
 Art 214. In Clarkson v. Hatton, 143 Mo. 
 47, 44 S. W. 761, 39 L. R. A. 748, 63 Am. St 
 Rep. 635, it was said to exist in every state. 
 In many of the continental states of Europe 
 it Is .still permitted under various restric- 
 tions. 
 
 Adoption is never sustained by mere pre- 
 sumption; Sackmau v. Campbell, 10 Wash. 
 533, 39 Pac. 1-15 ; In re Romero, 75 
 17 Pac 434; Henry v. Taylor, 16 S. D. 42 .. 
 
 93 N. W. 641; even though the child had 
 been taken from an asylum at the age of 
 seven, given the name of the people with 
 whom he lived and treated by them as a 
 son until majority; In re Iluyck, 49 Mi- 
 391, 99 N. Y. Supp. 502; and where the meth- 
 od of adoption is provided by statute, it can 
 be done in no other way ; Taylor v. Deseve, 
 81 Tex. 246, 16 S. W. 1008 ; Foley v. I 
 
 61 111. App. 577. There must be a substan- 
 tial compliance with all statutory require- 
 ments; Smith v. Allen, 161 N. Y. 478. 55 N. 
 E. 1056 ; Bresser v. Saarman, 112 la. 720, 84 
 N. W. 920. 
 
 A husband and wife may adopt a child 
 jointly; Markover v. Krauss, 132 Ind. 294, 31 
 N. E. 1017, 17 L. R. A. S06 (but not if the 
 husband be insane; Watts v. Dull, 1S4 111. 
 86, 56 N. E. 303, 75 Am. St. Rep. 141) ; or an 
 unmarried person of suitable age; Krug v. 
 Davis, 87 Ind. 590. The mere fact that one 
 is in the senile age of life will not render 
 him incompetent to adopt one in the prime 
 and vigor of life; Collamore v. Learned. 171 
 Mass. 99, 50 N. E. 51S. It is held that a non- 
 resident may not adopt a child ; Knight v. 
 Gallaway, 42 Wash. 413, 85 Pac. 21. An 
 adult may be an adopted child ; Sheffield v. 
 Franklin, 151 Ala. 492. 44 South. 373, VJ. L. 
 R. A. (N. S.) 8S4, 125 Am. St. Rep. 3,7. 15 
 Ann. Cas. 90; In re Moran's Estate. 151 Mo. 
 555, 52 S. W. 377; Succession of Caldwell, 
 114 La. 195, 38 South. 140, 108 Am. St. Rep. 
 341; Markover v. Krauss, 132 Ind. 294, 31 
 N. E. 1047, 17 L. R. A. 806; Collamore v. 
 Learned, 171 Mass. 99, 50 N. E. 518 ; but see 
 contra; Petition of Moore, 14 R. I. 38; Wil- 
 liams v. Knight, 18 R. I. 333, 27 Atl. 210. 
 Where the word "child" was used, the stat- 
 ute was held not to include an adult. 
 
 Usually the consent of the natural parents 
 is required; Hopkins v. Antrobus, 120 la. 21, 
 
 94 N. W. 251; In re Estate of McCormick, 
 108 Wis. 234, 84 N. W. 14S, SI Am. St. Rep. 
 S90; Succession of Vollmer, 40 La. Am 
 
 4 South. 254; Luppie v. Wiuans. 37 X. J. Bq. 
 245; In re Bastin, 10 Ta. Super. Ct 570; 
 and in some states the consent of the child, 
 when he is above a certain age ; In re John- 
 son, 98 Cal. 531, 33 Pac. 460, 21 L. R. A. 380; 
 Morrison v. Sessions' Estate, 70 Mich. 297, 
 3S X. W. 2 19, 14 Am. St. Rep. 500. 
 
 If the child be a foundling, the parents 
 have no authority over it and the situation 
 is as if the parents were dead; Succession 
 of Dupre, 116 La. 1090, 41 South. 324. A 
 charitable society which maintains and cares
 
 ADOPTION 
 
 148 
 
 ADOPTION 
 
 for a child may consent to its adoption; 
 Booth v. Van Allen, 7 Phila. (Pa.) 401; and 
 a probate court may appoint a guardian ad 
 litem with power to give or withhold con- 
 sent to adoption, where the parents are un- 
 known and there is no guardian ; In re Edds, 
 137 Mass. 346. To constitute abandonment 
 there must be some act on the part of the 
 parent evincing a settled purpose to forego 
 all parental duties; Winans v. Luppie, 47 
 N. J. Eq. 302, 20 Atl. 969. 
 
 If the court be satisfied that the proceed- 
 ings are for his benefit, the consent of a 
 minor will be presumed ; Morrison v. Ses- 
 sions' Estate, 70 Mich. 297, 38 N. W. 249, 14 
 Am. St Rep. 500. 
 
 The surrender of the child by its parents 
 constitutes a valuable consideration for a 
 promise of adoption; Ilealy v. Simpson, 113 
 Mo. 310, 20 S. W. S81; Godine v. Kidd, 64 
 Hun 5S5, 19 N. Y. Supp. 335; Lynn v. Hock- 
 aday, 162 Mo. Ill, 61 S. W. 8S5, 85 Am. St 
 Rep. 4S0 
 
 Where there is a contract for adoption 
 and a sufficient consideration therefor on 
 the part of the child, such contract will be 
 enforced ; McElvain v. McElvain, 171 Mo. 
 2 14, 71 S. W. 142 ; 8 Hawaii 40. 
 
 When an infant child has been released 
 to another, such release is not revocable 
 without sufficient legal reasons ; Janes v. 
 Cleghorn, 54 Ga. 10; and unless proceedings 
 to revoke are made promptly, it will be fatal 
 to their maintenance; Brown v. Brown, 101 
 Ind. 340. 
 
 The right of inheritance. In the District 
 of Columbia the right of inheritance is not 
 included in the rights acquired by adoption ; 
 Moore v. Hoffman, Fed. Cas. No. 9,764 a; 
 In New York it is; Theobald v. Smith, 103 
 App. Div. 200, 92 N. Y. Supp. 1019. . In Ohio 
 an adopted child inherits from the adopting 
 parent but not through him ; Phillips v. Mc- 
 Conica, 59 Ohio St. 1, 51 N. E. 445, 69 Am. 
 St Rep. 753; in Illinois such child can take 
 by descent only from the person adopting 
 him and not from lineal or collateral kin- 
 dred of the adopting parent; Van Matre v. 
 Sankey, 148 111. 536, 36 N. E. 628, 23 L. R. A. 
 665, 39 Am. St. Rep. 196; Keegan v. Ger- 
 aghty, 101 111. 26 ; and see Van Derlyn v. 
 Mack, 137 Mich. 146, 100 N. W. 278, 66 L. R. 
 A. 437, 109 Am. St. Rep. 669, 4 Ann. Cas. 
 S79. In Pennsylvania an adopted child can 
 not take under a devise to "children" as it 
 is not a child by nature; Schafer v. Eneu, 
 54 Pa. 304. He is held not to be within a 
 conveyance to "1 odily heirs"; Balch v. John- 
 son, 106 Tenn. 249, 61 S. W. 289; nor is he 
 a lineal descendant ; Com. v. Ferguson, 137 
 Pa. 595, 20 Atl. 870, 10 L. R. A. 240; or 
 lineal issue ; Kerr v. Goldsborough, 150 Fed. 
 289, 80 C. C. A. 177. The word •child" in a 
 statute relating to adoption has a broader 
 signification than "issue"; Virgin v. Mar- 
 wick, 97 Me. 57S, 55 Atl. 520; and the adopt- 
 ed child has the same right of inheritance as 
 
 a natural child ; id. In Massachusetts an 
 adopted child was held to be entitled to take 
 from the deceased son of one of the adopting 
 parents; Stearns v. Allen, 183 Mass. 404, 67 
 N. E. 349, 97 Am. St. Rep. 441. 
 
 The right of inheritance from adoption 
 arises by operation of law from the acts of 
 the parties in compliance with the statute 
 and not from contract ; Jordan v. Abney, 97 
 Tex. 296, 78 S. W. 4S6. 
 
 As an adopted child is not a lineal de- 
 scendant, a legacy to him will not be exempt- 
 ed from payment of the collateral inheri- 
 tance tax ; Com. v. Ferguson, 137 Pa. 595, 
 20 Atl. 870, 10 L. R. A. 240; otherwise in 
 New York by statute; In re Butler, 58 Hun 
 400, 12 N. Y. Supp. 201 ; but see In re Bird's 
 Estate, 11 N. Y. Supp. 895, where payment 
 of such a tax was required, in the case of 
 a legacy to the child of an adopted child. 
 
 The adoptive parent may disinherit the 
 child; Logan v. Lennix, 40 Tex. Civ. App. 
 62, 88 S. W. 364; and he has the same un- 
 limited power of disposition of his property 
 that a natural father has ; Burnes v. Burnes, 
 132 Fed. 485. 
 
 Adopting parents inherit from the child in 
 preference to the natural parents; Swick v. 
 Coleman, 218 111. 33, 75 N. E. 807; Paul v. 
 Davis, 100 Ind. 422; see Hyatt v. Pugsley, 
 33 Barb. (N. Y.) 373 ; Estate of Foley, 1 W. 
 N. C (Pa.) 301 ; but this rule is not always 
 followed. In many cases the estate of the 
 deceased child goes to his relatives by blood ; 
 Upson v. Noble, 35 Ohio St. 655; Com. v. 
 Powel, 16 W. N. C. (Pa.) 297; Hole v. Rob- 
 bins, 53 Wis. 514, 10 N. W. 617 ; Hill v. Nye, 
 17 Hun (N. Y.) 457. In Pennsylvania, al- 
 though the act does in express words con- 
 fer the right of inheritance upon the child 
 from the adopting parent, the latter cannot 
 inherit from the adopted child, because "the 
 act does not so declare" ; Com. v. Powel, 16 
 W. N. C. (Pa.) 297. 
 
 A child adopted in one state, where both 
 it and its adopted parent are domiciled, can 
 inherit land in another state having sub- 
 stantially similar adoption laws and per- 
 mitting adopted children to inherit; Finley 
 v. Brown, 122 Tenn. 316, 123 S. W. 359, 25 
 L. R. A. (N. S.) 1285 ; see cases in 65 L. R. A. 
 186, note; contra, Brown v. Finley, 157 Ala. 
 424, 47 South. 577, 21 L. R. A. (N. S.) 679, 131 
 Am. St Rep. 6S, 16 Ann. Cas. 778. 
 
 To "enact" implies the creating anew of a 
 law which did not exist before ; but "adopt," 
 no doubt, implies the making that their own 
 which was created by another, as the adop- 
 tion of our statute laws of Great Britain, as 
 they stood, by the Colonial Government; 
 Williams v. Bank, 7 Wend. (N. Y.) 539. 
 
 The word "adoption" in a state constitu- 
 tion providing for a continuance in office of 
 judges in office at the adoption of the con- 
 stitution means when it is fully consummated 
 and complete — not inchoate and imperfect; 
 People v. Norton, 59 Barb. (N. Y.) 169.
 
 ADOPTION 
 
 149 
 
 ADULTERATION" 
 
 "The primary and natural signification of 
 
 the word adoption includes both take 
 
 effect and in force" ; People v. Norton, 59 
 Barb. (N. Y.) 169. 
 
 ADPROMISSOR (Lat promittere). One 
 who binds himself for another ; a surety ; a 
 peculiar species of fidejussor. Calvinus, Lex. 
 
 The term is used in the same sense in the 
 Scotch law. The cautionary engagement was 
 undertaken by a separate act: hence, one 
 entering Into it was called adpromissor 
 (promisor in addition to). Erskine, Inst. 3. 
 3. 1. 
 
 ADROGATION. One of two procedures 
 for adoption under the Roman Law, i. e. by 
 bill (rogatio) passed by the comitia curiata, 
 with the formal consent of the intended fa- 
 ther and son. 1 Roby, Rom. Priv. Law GO. 
 See Adoption. 
 
 ADS. See Ad Sectam. 
 
 AD SCRIPT I (Lat. scribere). Joined to by 
 writing; ascribed; set apart; assigned to; 
 annexed to. 
 
 ADSCRIPTI GLEB/E. Slaves who served 
 the master of the soil ; who were annexed to 
 the land, and passed with it when it was con- 
 veyed. Calvinus, Lex. 
 
 These servi adscripti (or ad scrip tit ii) glebce held 
 the same position as the villeins regardant of the 
 Normans ; 2 Bla. Com. 93. See 1 Poll. & Mait. 372. 
 
 ADSCRIPTICII (Lat). A species of serfs 
 or slaves. See 1 Poll. & Mait. 372. 
 
 Those persons who were enrolled and lia- 
 ble to be drafted as legionary soldiers. Cal- 
 vinus, Lex. 
 
 ADSESSORES (Lat. scdere). Side judges. 
 Those who were joined to the regular magis- 
 trates as assistants or advisers ; those who 
 were appointed to supply the place of the 
 regular magistrates in certain cases. Cal- 
 vinus, Lex. See Assessors. 
 
 ADSTIPULATOR. In Civil Law. One 
 who supplied the place of a procurator at 
 a time when the law refused to allow stip- 
 ulations to be made by procuration. Sand. 
 Inst. 354. 
 
 ADULT. In Civil Law. A male infant 
 who has attained the age of fourteen ; a 
 female infant who has attained the age of 
 twelve. Uomat. Liv. Prel. tit. 2, § 2, n. 8. 
 
 In Common Law. One of the full age of 
 twenty-one. Swanst. Ch. 553; George v. 
 State, 11 Tex. App. 95. 
 
 ADULTER (Lat). One who corrupts; one 
 who corrupts another man's wife. 
 
 Adulter solidontm. A corrupter of metals; 
 a counterfeiter. Calvinus, Lex. 
 
 ADULTERA (Lat). A woman who com- 
 mits adultery. Calvinus, Lex. 
 
 ADULTERATION. The act of corrupting 
 or debasing; the act of mixing something 
 impure or spurious with something pure or 
 genuine, or an inferior article with a superior 
 
 one of the same kind. See 16 M, & W. 644 ; 
 State v. Norton, 24 N. C. 40. 
 See Food and Drug Laws. 
 
 ADULTERATOR (Lat). A corrupter; a 
 counterfeiter. 
 Adulterator monetw. A forger. Du Cange. 
 
 ADULTERINE. The issue of adulterous 
 intercourse. 
 
 1 hose are not deemed adulterine who are 
 begotten of a woman openly married through 
 ignorance of a former wife being alive. 
 
 Adulterine children are regarded more un- 
 favorably than the illegitimate offspring of 
 single persons. The Roman law refus. 
 title of natural children, and the canon law 
 discouraged their admission to orders. 
 
 ADULTERINE GUILDS. Companies of 
 traders acting as corporations, without char- 
 ters, and paying a fine annually for the priv- 
 ilege of exercising their usurped privileges. 
 Smith, Wealth of Nat. book 1, c, 10; Whar- 
 ton, Diet. 
 
 ADULTERIUM. A fine imposed for tbe 
 commission of adultery. Barrington, Stat 
 62, n. 
 
 ADULTERY. The voluntary sexual inter- 
 course of a married person with a person 
 other than the offender's husband or wife. 
 Bishop, Mar. & D. § 415; Moore v. Com., 6 
 Mete. (Mass.) 243, 39 Am. Dec. 724; State v. 
 Hutchinson, 36 Me. 261; Cook v. State, 11 
 Ga. 56, 56 Am. Dec. 410; Hull v. Hull, 2 
 Strobh. Eq. (S. C.) 174. 
 
 Unlawful voluntary sexual intercourse be- 
 tween two persons, one of whom at least is 
 married, is the essence of the crime in all 
 cases. In general, it is sufficient if either 
 party is married ; and the crime of the mar- 
 ried party will be adultery, while that of the 
 unmarried party will be fornieation ; Re- 
 spublica v. Roberts, 1 Yeates (Pa.) 6 ; id. : 2 
 Dall. (Pa.) 124, 1 L. Ed. 316; State v. Par- 
 ham, 50 N. C. 416; Smitherman v. State, 27 
 Ala. 23; State v. Thurstin, 35 Me. 21 
 Am. Dec. 693; Com. v. Cregor, 7 Gratt. <Ya.) 
 591; Com. v. Lafferty, 6 Gratt. (Va.) 673; 
 Banks v. State, 96 Ala. 7S, 11 South. 404; 
 Hunter v. U. S., 1 Pinney (Wis.) 91, 39 Am. 
 Dec. 277. In Massachusetts, however, and 
 some of the other states, by statute, if the 
 woman be married, though the man be unmar- 
 ried, he is guilty of adultery; Com. v. Call, 
 21 Pick. (Mass.) 509, 32 Am. Dee. 284, and 
 note; Com. v. Elwell, 2 Mete. 10". 39 Am. 
 Dec. 398 (where the man was ignorant that 
 the woman was married) : State v. Pearce, 2 
 Blackf. (Ind.) 318; Wasden v. State, IS Ga. 
 264; State v. Wallace, 9 N. IT. 515; and see 
 State v. Lash, 16 N. J. L. 3S0, 32 Am. Dec. 
 397; Mosser v. Mosser, 29 Ala. 313. In Con- 
 necticut aud some other states, it seems that 
 to constitute the offence of adultery it is 
 ary that the woman should be mar- 
 ried ; that if the man ODly is married, it is 
 not the crime of adultery at common law or
 
 ADULTERY 
 
 150 
 
 ADULTERY 
 
 under the statute, so that an Indictment for 
 adultery could be sustained against either 
 party ; though within the meaning of the 
 law respecting divorces it is adultery in the 
 man. Cohabitation with a man after mar- 
 riage is not adultery, unless the woman 
 knows of such marriage ; Banks v. State, 90 
 Ala. 78, 11 South. 404 ; Vaughan v. State, 83 
 Ala. 55, 3 South. 530 ; it is not necessary to 
 prove emission on prosecution for adultery ; 
 Com. v. Hussey, 157 Mass. 415, 32 N. E. 362. 
 
 A charge of open and notorious adultery 
 is not sustained by proof of occasional il- 
 licit intercourse; Wright v. State, 5 Blackf. 
 (Ind.) 358, 35 Am. Dec. 126, and note ; State 
 v. Crowner, 56 Mo. 147; Brevaldo v. State, 
 21 Fla. 7S9; Searls v. People, 13 111. 597; 
 nor by merely living together as man and 
 wife without any circumstances to cause 
 scandal or suspicion ; People v. Salmon, 148 
 Cal. 303, 83 Pac. 42, 2 L. R. A. (N. S.) 1186, 
 113 Am. St. Rep. 268 ; Schoudel v. State, 57 
 N. J. L. 209, 30 Atl. 598. While ordinarily 
 marriage may be proved by admission or 
 matrimonial cohabitation there is some con- 
 flict as to whether the fact of marriage can 
 be proved by admission of a party so as to 
 render him guilty of a crime, as of adultery. 
 In many courts such evidence is held insuffi- 
 cient; People v. Humphrey, 7 Johns. (N. Y.) 
 314; State v. Roswell, 6 Conn. 446; State 
 v. Medbury, 8 R, I. 543; People v. Isham, 
 109 Mich. 72, 67 N. W. 819; State v. Arm- 
 strong, 4 Minn. 335 (Gil. 251) ; but the weight 
 of authority is against that rule; Cameron 
 v. State, 14 Ala. 546, 48 Am. Dec. Ill, and 
 note; State v. Libby, 44 Me. 469, 69 Am. 
 Dec. 115 ; Com. v. Holt, 121 Mass. 61 ; Cook 
 v. State, 11 Ga. 53, 56 Am. Dec. 410; Mur- 
 phy v. State, 50 Ga. 150; State v. Sanders, 
 30 la. 582. 
 
 It was not, by itself, indictable at common 
 law; 4 Bla. Com. 65; Whart Cr. Law 1717; 
 Anderson v. Com., 5 Rand. (Va.) 627, 16 Am. 
 Dec. 776 ; Com. v. Isaacs, 5 Rand. (Va.) 634 ; 
 but was left to the ecclesiastical courts for 
 punishment. In the United States it is usu- 
 ally punishable by fine and imprisonment 
 under various statutes. 
 
 Parties to the crime may be jointly in- 
 dicted; Com. v. Elwell, 2 Mete. (Mass.) 190, 
 35 Am. Dec. 39S ; or one may be convicted 
 and punished before or without the convic- 
 tion of the other; 2 Whart. Cr. L. § 1730; 
 "but when one has been previously tried and 
 acquitted, or when both are tried together 
 and the verdict is for one, the other cannot 
 be found guilty ;" State v. Mainor, 28 N. C 
 340 ; State v. Parham, 50 N. C. 416 ; contra; 
 State v. Caldwell, 8 Baxt. (Tenn.) 576 ; Alon- 
 zo v. State, 15 Tex. App. 378, 49 Am. Rep. 
 207; Solomon v. State, 39 Tex. Cr. R. 140, 
 45 S. W. 706; and see 12 Harv. L. R. 282. 
 The adultery of the wife will not avoid a 
 previous voluntary settlement ; Lister v. Lis- 
 ter, 35 N. J. Eq. 49 ; but if, in contemplation 
 of future adultery, she induce a gift of prop- 
 
 erty, it is revocable; 2 De G. F. & J. 481; 
 Evans v. Evans, 118 Ga. 890, 45 S. E. 612, 
 9S Am. St. Rep. ISO. The equitable jurisdic- 
 tion is founded on fraud in concealing a ma- 
 terial fact which, by reason of the relation, 
 there was a duty to disclose; 17 Harv. L, 
 Rev. 202. Where the petitioner in divorce 
 was only able to prove acts of familiarity, 
 suggestive of adultery, before the date of 
 the petition, he was permitted to prove ac- 
 tual adultery after that date as showing 
 what inferences should be drawn from the 
 prior conduct ; [1900] P. 63. 
 
 As to civil remedies, see Ceim. Con. 
 
 ADVANCE. To supply beforehand; to 
 furnish something before an equivalent Is 
 received ; to loan. Rogers v. Bank, 108 N. 
 C. 574, 13 S. E. 245. 
 
 ADVANCEMENT. A gift by anticipation 
 from a parent to a child of the whole or a 
 part of what it is supposed such child will 
 inherit on the death of the parent. Hengst's 
 Estate, 6 Watts (Pa.) 87 ; Sampson v. Samp- 
 son, 4 S. & R. (Pa.) 333 ; Osgood v. Breed's 
 Heirs, 17 Mass. 358; Jackson v. Matsdorf, 
 11 Johns. (N. Y.) 91, 6 Am. Dec. 355 ; Parish 
 v. Rhodes, Wright (Ohio) 339; Dames' Ex'r 
 v. Lloyd, 82 Va. 859, 5 S. E. 87, 3 Am. St. 
 Rep. 123. The doctrine applies only to in- 
 testate estates, and proceeds upon the pre- 
 sumption, in the absence of a will, that the 
 gift is in anticipation of the parent's death, 
 and that he intended equality ; but a subse- 
 quent disposal by will rebuts the presump- 
 tion ; Marshall v. Rench, 3 Del. Ch. 239, per 
 Bates, Ch. 
 
 But an advancement, properly so called, 
 though a thing known under certain ancient 
 customs in England, is now a creature of 
 statute, and, by the statute, is confined to 
 intestate estates, and never applied to lands 
 devised; Marshall v. Rench, 3 Del. Ch. 239, 
 253, where the opinion states fully the Eng- 
 lish statutes and policy. 
 
 An advancement can only be made by a 
 parent to a child; Callender v. McCreary, 
 4 How. (Miss.) 356; Shiver v. Brock, 55 N. 
 C. 137; Bisph. Eq. 84; or in some states, by 
 statute, to a grandchild ; 4 Kent 419 ; Dick- 
 inson v. Lee, 4 Watts (Pa.) 82, 28 Am. Dec. 
 G84 ; 4 Ves. 437. It must be ejusdem gener- 
 is; 3 Yo. & Coll. 397; as is the rule with re- 
 spect to ademption, g. v. 
 
 It is held that a gift to a husband by 
 wife's father is considered an advancement 
 to the wife; Bruce v. Slemp, 82 Va. 352, 4 
 S. E. 692; and that it is a question of fact, 
 where decedent in his lifetime made a con- 
 veyance to his daughter-in-law ; Palmer v. 
 Culbertson, 65 Hun 625, 20 N. Y. Supp. 391. 
 
 The intention of the parent is to decide 
 whether a gift is intended as an advance- 
 ment; Lawson's Appeal, 23 Pa. 85; Jackson 
 v. Matsdorf, 11 Johns. (N. Y.) 91, 6 Am. Dec. 
 355; McPaw v. Blewit, 2 McCord Ch. (S.
 
 ADVANCEMENT 
 
 151 
 
 ADVANCES 
 
 O.) 103. See Weatherhead v. Field, 26 Vt 
 665. 
 
 A mere gift is presumptively an advance- 
 ment, but the contrary intention may be 
 shown; Brown v. Burke, 22 Ga. 574; Grat- 
 tan v. Grattan, 18 111. 167, 65 Am. Dee. 726; 
 Lawrence v. Mitchell, 48 N. C. 190; Hatch 
 v. Straight, 3 Conn. 31, 8 Am. Dec. 152; 
 Scott v. Scott, 1 Mass. 527; Bruce v. Slemp, 
 82 Va. 352, 4 S. E. 602 ; Culp v. Wilson, 133 
 Ind. 294, 32 N. E. 928. The maintenance and 
 education of a child, or the gift of money 
 without a view to a portion or settlement in 
 life, is not deemed an advancement ; Ison 
 v. Ison, 5 Rich. Eq. (S. C.) 15; Sherwood v. 
 Smith, 23 Conn. 516. If security is- taken for 
 repayment, it is a debt and not an advance- 
 ment; High's Appeal, 21 Pa. 283; West v. 
 Bolton, 23 Ga. 531 ; Barton v. Rice, 22 Pick. 
 (Mass.) 508; and see Procter v. Newhall, 17 
 Mass. 93 ; Osgood v. Breed's Heirs, 17 Mass. 
 359; Stewart v. State, 2 Harr. & G. (Md.) 
 114. Payment of a son's debts will be con- 
 sidered an advancement; Steele v. Frierson, 
 85 Tenn. 430, 3 S. W. 649; or the payment 
 by the father as surety of the notes of his 
 son who had no estate; Reynolds' Adm'r y. 
 Reynolds, 92 Ky. 556, 18 S. W. 517. 
 
 No particular formality is requisite to in- 
 dicate an advancement ; 1 Madd. Ch. Pr. 
 507; 4 Kent 418; Brown v. Brown, 16 Vt. 
 197; unless prescribed by statute; 4 Kent 
 418; Hartwell v. Rice, 1 Gray (Mass.) 587; 
 Mowry v. Smith, 5 R. I. 255 ; Sayles v. Bak- 
 er, 5 R, I. 457. 
 
 Where a father divides his property equal- 
 ly between two sons, conveying to one his 
 share, it is considered an advancement where 
 no deed is delivered to the other; O'Connell 
 v. O'Connell, 73 la. 733, 36 N. W. 764. 
 
 The effect of an advancement is to reduce 
 the distributive share of the child by the 
 amount so received, estimating its value at 
 the time of receipt; Oyster v. Oyster, 1 S. & 
 R. (Ta.) 422; Nelson v. Wyan, 21 Mo. 347; 
 Burton v. Dickinson, 3 Yerg. (Tenn.) 112; 
 War field v. Warfield, 5 Harr. & J. (Md.) 
 459; Beck with v. Butler, 1 Wash. (Va.) 
 224; Hall v. Davis, 3 Pick. (Mass.) 450; in 
 some states the child has his option to retain 
 the advancement and abandon his distribu- 
 tive share; Clark v. Fox, 9 Dana (Ky.) 193; 
 Taylor v. Reese, 4 Ala. 121; to abandon his 
 advancement and receive his equal share of 
 the estate; Knight v. Oliver, 12 Gratt. (Va.) 
 33; Andrews v. Hall, 15 Ala. 85; Phillips v. 
 McLaughlin, 26 Miss. 592; Grattan v. Grat- 
 tan, 18 111. 167, 65 Am. Dec. 726; but this 
 privilege exists only in case of intestacy ; 
 Newman v. Wilbourne, 1 Hill, Ch. (S. C.) 10; 
 Sturdevant v. Goodrich, 3 Yerg. (Tenn.) 95; 
 Howland v. Heckscher, 3 Sandf. Ch. (N. Y.) 
 520; Hawley v. James, 5 Paige, Ch. (N. Y.) 
 450; Ves. Ch. 323. See Ademption; Gift. 
 
 It is not chargeable with interest ; Miller's 
 Appeal. 31 Pa. 337; until the settlement of 
 the estate. 
 
 ADVANCES. Payments made to the own- 
 er of goods by a factor or agent, who has 
 or is to have possession of the goods for the 
 purpose of selling them. 
 
 An agent is entitled to reimburse himself 
 from the proceeds of the goods, and has a 
 lien on them for the amount paid ; Liverm. 
 Ag. 38; Merchants' National Bank v. Pope, 
 19 Or. 35, 26 Pac. 622; and an action over 
 for the balance, against his principal, if the 
 sales are insufficient to cover the advances ; 
 Parker v. Brancker, 22 Pick. (Mass.) 40; 
 Marfield v. Goodhue, 3 N. Y. 62; Frothing- 
 ham v. Everton, 12 N. H. 239; Harrison, 
 Frazier & Co. v. Mora, 150 Pa. 481, 24 Atl. 
 705; Eichel v. Sawyer, 44 Fed. 845; but he 
 must first exhaust the property in his hands ; 
 Balderston v. Rubber Co., 18 R. I. 338, 27 
 Atl. 507, 49 Am. St. Rep. 772. Where to save 
 himself from loss the factor buys the goods 
 himself, the consignor may elect whether 
 he will ratify the sale or demand the value 
 of the goods; Sims v. Miller, 37 S. C. 402, 
 16 S. E. 155, 34 Am. St. Rep. 702. 
 
 See Agent ; Factor. 
 
 In the case of a contract for the manu- 
 facture and sale of merchandize, a stipula- 
 tion to advance money on account means to 
 supply beforehand, to loan before the work 
 is done or the goods made; Powder Co. v. 
 Burkhardt, 97 U. S. 110, 24 L. Ed. 973. 
 
 It also refers to a case where money is 
 paid before, or in advance of, the proper 
 time of payment; it may characterize a loan 
 or a gift, or money advanced to be repaid 
 conditionally; Vail v. Vail, 10 Barb. (N. Y.) 
 73. 
 
 Though in its strict legal sense the word 
 does not mean gifts or advancements, but 
 rather a sort of loan, in its ordinary and 
 usual sense it includes both loans and ^rif ts — 
 rather the former than the latter; Prouty v. 
 Swift. 51 N. Y. 597; Nolan's Ex'rs v. P.olton, 
 25 Ga. 352. 
 
 As to mortgages to secure future advance- 
 ments, see Mortgage. 
 
 ADVANTAGE. Preference or priority. 
 United States v. Preston, 4 Wash. 446, Fed. 
 Cas. No. 16,087. 
 
 AD VENA (Lat. venire). In Roman Law. 
 One of foreign birth, who has left his own 
 country and settled elsewhere, and who has 
 not acquired citizenship in his new locality; 
 often called albanus. Du Cange. 
 
 ADVENT. The period commend] - 
 Sunday falling on St. Andrew's day (30th 
 of November), or the nearest Sunday to it, 
 and continuing till Christinas. Blount 
 
 It took its name from the fact that it imm< 
 preceded the day set apart to commemorate the 
 birth or coming (advent) of Christ. Cowel ; Termes 
 de la Ley. 
 
 Formerly, during this period, "all conten- 
 tions at law were omitted.'' But, by statute 
 13 Edw. I. (Westm. 2) c 48, certain actions 
 were allowed.
 
 ADVENTITIOUS 
 
 152 
 
 ADVERSE POSSESSION 
 
 ADVENTITIOUS (Lat. advcntitius). 
 That which comes incidentally, or out of the 
 regular course. 
 
 ADVENTITIUS (Lat). Foreign; corning 
 from an unusual source. 
 
 Advcntitia bona are goods which fall to a 
 man otherwise than by inheritance. 
 
 Advcntitia dos is a dowry or portion given 
 by some friend other than the parent 
 
 ADVENTURE. Sending goods abroad un- 
 der charge of a supercargo or other agent 
 which are to be disposed of to the best ad- 
 vantage for the benefit of the owners. 
 
 The goods themselves so sent. 
 
 It Is used synonymously with "perils" ; It 
 is often used by writers to describe the en- 
 terprise or voyage as a "marine adventure" 
 insured against; Moores v. Louisville Un- 
 derwriters, 14 Fed. 233. See Insurance; 
 Bill of Adventure. 
 
 ADVENTURER. One who undertakes un- 
 certain or hazardous actions or enterprises. 
 It is also used to denote one who seeks to 
 advance his own interests by unscrupulous 
 designs on the credulity of others. It has 
 been held that to impute that a person is an 
 adventurer is a libel ; 18 L. J. C. P. 241. 
 
 ADVERSE CLAIM. See Adverse Posses- 
 sion. 
 
 ADVERSE ENJOYMENT. The possession 
 or exercise of an easement or privilege un- 
 der a claim of right against the owner of 
 the land out of which the easement is de- 
 rived. 2 Washb. R. P. 42. 
 
 Such an enjoyment, if open, 4 M. & W. 
 500; 4 Ad. & E. 369, and continued unin- 
 terruptedly; Powell v. Bagg, 8 Gray (Mass.) 
 441, 69 Am. Dec. 262; Colvin v. Burnet, 17 
 Wend. (X. Y.) 564 ; Pierre v. Fernald, 26 Me. 
 4-10, 46 Am. Dec. 573; Bullen v. Runnels, 
 2 N. H. 255, 9 Am. Dec. 55 ; Watt v. Trapp, 
 2 Rich. (S. C.) 136 ; 11 Ad. & E. 7S8 ; Grace 
 Methodist Episcopal Church v. Dobbins, 153 
 Pa. 294, 25 Atl. 1120, 34 Am. St. Rep. 706, 
 for the term of twenty years, raises a con- 
 clusive presumption of a grant, provided that 
 there was, during the time, some one in ex- 
 istence, in possession and occupation, who 
 was not under disability to resist the use; 
 '2 Washb. R. P. 48. See Presumption; Ease- 
 ment ; Adveese Possession. 
 
 ADVERSE POSSESSION. The enjoyment 
 of land, or such estate as lies in grant, un- 
 der such circumstances as indicate that such 
 enjoyment has been commenced and contin- 
 ued under an assertion or color of right on 
 the part of the possessor. 3 East 394 ; Wal- 
 lace v. Duffield, 2 S. & R. (Pa.) 527, 7 Am. 
 Dec. 660 ; French v. Pearce, 8 Conn. 440, 21 
 Am. Dec. 680; Robinson v. Douglass, 2 Aik. 
 (Vt) 364 ; Smith v. Burtis, 9 Johns. (N. Y.) 174; 
 Jackson v. Huntington, 5 Pet. (U. S.) 402, 8 
 L. Ed. 170; Bowles v. Sharp, 4 Bibb (Ky.) 
 550. See 15 L. R. A. (N. S.) 1178, note. 
 
 A prescriptive title rests upon a different 
 principle from that of a title arising under 
 the statute of limitations. Prescription op- 
 erates as evidence of a grant and confers a 
 positive title; Cruise, Dig. tit 31, ch. 1, § 
 4. The statute of limitations operates not 
 so much to confer positive title on the oc- 
 cupant, as to bar the remedy. Hence it is 
 said to be properly called a negative pre- 
 scription; id. It applies only when there 
 has been a disseisin or some actionable in- 
 vasion of the real owner's possession; Claw- 
 son v. Primrose, 4 Del. Ch. 670 n. 
 
 When such possession has been actual, 
 Mather v. Ministers of Trinity Church, 3 S. 
 & R. (Pa.). 517, 8 Am. Dec. 663, and has been 
 adverse for twenty years, the law raises the 
 presumption of a grant; Angell, Wat. Cour. 
 85. But this presumption arises only when 
 the use or occupation would otherwise have 
 been unlawful; Tinkham v. Arnold, 3 
 Greenl. (Me.) 120; Jackson v. Richards, 6 
 Cow. (N. Y.) 617; Jackson v. Vermilyea, id. 
 677; Hall v. Powel, 4 S. & R. (Pa.) 456, 8 
 Am. Dec. 722. 
 
 The statute of limitations is the source of 
 title by adverse possession ; Armijo v. Ar- 
 mijo, 4 N. M. (Gild.) 57, 13 Pac. 92. It is 
 held to be not grounded upon the presump- 
 tion of a grant ; but is the fiat of the legis- 
 lature cutting off the right to maintain suit ; 
 Louisville & N. R. Co. v. Smith, 125 Ky. 336, 
 101 S. W. 317, 31 Ky. L. Rep. 1, 128 Am. St. 
 Rep. 254 ; and is for the interest of the sta- 
 bility of titles ; Northern Pac. R. Co. v. Ely, 
 25 Wash. 384, 65 Pac. 555, 54 L. R. A. 526, 87 
 Am. St. Rep. 766. It protects the disseisor 
 in his possession not out of regard to the 
 merits of his title, but because the real own- 
 er has acquiesced in his possession; Foulke 
 v. Bond, 41 N. J. L. 527. It must be com- 
 plied with in every substantial particular; 
 Brokel v. McKechnie, 69 Tex. 33, 6 S. W. 623. 
 
 A mere possession, without color or claim 
 of an adverse title, will not enable one in an 
 action of right to avail himself of the statute 
 of limitations; Clagett v. Conlee, 16 la. 
 487 ; Jasperson v. Scharnikow, 150 Fed. 571, 
 80 C. C. A.. 373, 15 L. R. A. (N. S.) 1178 ; 
 Jackson v. Huntington, 5 Pet. (U. S.) 402, 
 8 L. Ed. 170 ; Stevens v. Brooks, 24 Wis. 329 ; 
 Harvey v. Tyler, 2 Wall. (U. S.) 328, 17 L. 
 Ed. S71. The terms "color of title" and 
 "claim of title" are not synonymous ; Her- 
 bert v. Hanrick, 16 Ala. 581. To constitute 
 the former there must be a paper title, but 
 the latter may rest wholly in parol ; Hamil- 
 ton v. Wright, 30 la. 4S0. The claim of 
 right may be made inferentially by unequivo- 
 cal acts of ownership; Barnes v. Light, 116 
 N. Y. 34, 22 N. E. 441 ; Wilbur v. R. Co., 116 
 la. 65, 89 N. W. 101; as by the occupation 
 and use of land by a railroad for a right of 
 way; Illinois Cent R. Co. v. Houghton, 126 
 111. 235, 18 N. E. 301, 1 L. R. A. 213, 9 Am. 
 St. Rep. 581; or by visible, hostile, exclusive, 
 and continuous appropriation of the land;
 
 ADVERSE POSSESSION 
 
 153 
 
 ADVERSE POSSESSION 
 
 Cox v. Hotel Co. (Tex.) 47 S. W. 808. It 
 need not be a valid claim, so long as it is 
 made and relied on by the person in posses- 
 sion ; Jackson v. Ellis, 13 Johns. (N. Y.) 118 ; 
 Clapp v. Bromagham, 9 Cow. (N. Y.) 530; 
 Grant v. Fowler, 39 N. H. 101 ; Cornelius v. 
 Giberson, 25 N. J. L. 1 ; Montgomery Coun- 
 ty v. Severson, 64 la. 326, 17 N. W. 197, 20 
 N. W. 458; Virginia Midland R. Co. v. Bar- 
 bour, 97 Va. 118, 33 S. E. 554; Dothard v. 
 Denson, 72 Ala. 541 ; and where all the oth- 
 er elements of an adverse possession have 
 concurrently and persistently existed for the 
 statutory time, color of title has been usual- 
 ly held not essential ; Moore v. Brownfield, 
 7 Wash. 23, 34 Pac. 199; Dibble v. Land 
 Co., 163 U. S. 63, 16 Sup. Ct. 939, 41 L. Ed. 
 72; and see the cases collected on this point, 
 15 L. R A. (N. S.) 1178, n. 
 
 The intention must be manifest; Lewis v. 
 Railroad Co., 102 N. Y. 202, 56 N. E. 540; 
 Haney v. Breeden, 100 Va. 7S1, 42 S. E. 916; 
 Marcy v. Marcy, 6 Mote. (Mass.) 360. It 
 guides the entry and fixes its character ; 
 Jasperson v. Scharnikow, 150 Fed. 571, 80 
 C. C. A. 373, 15 L. R. A. (N. S.) 1178, citing 
 Ewing v. Burnet, 11 Pet. (U. S.) 51, 9 L. Ed. 
 624. Possession taken under claim of title 
 shows such intention ; .Probst v. Trustees, 
 129 TJ. S. 182, 9 Sup. Ct. 263, 32 L. Ed. 642. 
 But if by mistake one oversteps his bounds 
 and encroaches upon his neighbor's lands, not 
 knowing the location of the true line and in- 
 tending to claim no more than he really is 
 entitled to possess, his possession is not ad- 
 verse, and will not give him title no matter 
 how long he actually holds it; Shirey v. 
 Whitlow, 80 Ark. 444, 97 S. W. 444 ; Gordon 
 v. Booker, 97 Cal. 586, 32 Pac. 593 ; Mills v. 
 Penny, 74 la. 172, 37 N. W. 135, 7 Am. St. 
 Rep. 474; Silver Creek Cement Corp. v. Ce- 
 ment Co., 138 Ind. 297, 35 N. E. 125, 37 N. C. 
 721; Preble v. Railroad Co., 85 Me. 260, 27 
 Atl. 149, 21 L. R. A. 829, 35 Am. St. Rep. 366; 
 Kirkman v. Brown, 93 Tenn. 476, 27 S. W. 
 709. In such a case the intent to claim title 
 exists only upon the condition that his be- 
 lief as to his boundary is true. The intention 
 is not absolute, but provisional, and the pos- 
 session is not adverse; Preble v. Railroad 
 Co., 85 Me. 260, 27 Atl. 149„ 21 L. R. A. S29, 
 35 Am. St. Rep. 366. When a boundary line 
 between adjoining landowners is perpetually 
 in dispute, and neither has actual occupa- 
 tion to any definite line, there is no adverse 
 possession beyond the true line ; Liddle v. 
 Blake, 131 la. 165, 105 N. W. 649; nor will 
 the encroachment of one in the erection of 
 his building on neighboring property through 
 mistake constitute such a possession as will 
 ripen into title by the lapse of time ; Davis 
 v. Owen, 107 Va. 283, 58 S. E. 581, 13 L. R. A. 
 (N. S.) 728, nor where a deed, by mistake, 
 covered land not intended to be conveyed ; 
 Garst v. Brutsche, 129 la. 501, 105 N. W. 452. 
 
 Where one enters into possession of real 
 property by permission of the owner, with- 
 
 out any tenancy whatever being created, 
 except at sufferance, possession bein^ 
 as a mere matter of favor, he can never ac- 
 quire title by adverse possession, no matter 
 how long continued against the true i 
 thereof, unless there is a clear, positive, un- 
 equivocal disclaimer and disavowal of the 
 owner's title and an assertion by the occu- 
 pant of a title in hostility thereto, 
 thereof being brought home to the landowner. 
 See McCutchen v. McCutchen, 77 B. I 
 57 S. E. 678, 12 L. R. A. (N. S.) 1110, and 
 cases cited. 
 
 The adverse possession must be "actual, 
 continued, visible, notorious, distinct, 
 hostile;" P.oaz v. Ileister, 6 S. & R. (I'a.) 21 ; 
 Evans v. Templeton, 69 Tex. 375, 6 - 
 S43, 5 Am. St. Rep. 71; Haflindorfer v. 
 Gault, 84 Ky. 124; Paldi v. Paldi, 95 Mich. 
 410, 54 N. W. 903; Chastang v. Chastang, 
 141 Ala. 451, 37 South. 799, 109 Am. St. Rep. 
 45; Foulke v. Bond, 41 N. J. L. 527: Jasper- 
 son v. Scharnikow, 150 Fed. 571, 80 C. C. A. 
 373, 15 L R. A. (N. S.) 1178. It is founded 
 in trespass and disseisin, an ouster and con- 
 tinued exclusion of the true owner for the 
 period prescribed by the statute ; Olewine v. 
 Messmore, 128 Pa. 470. 18 Atl. 495; Ward v. 
 Cochran, 150 U. S. 597, 14 Sup. Ct. 230, 37 
 L. Ed. 1195. Nepean v. Doe, 2 Sm. Lead. 
 Cas. 597; 16 Harv. L. Rev. 224. Even the 
 sole possession by one tenant in common is 
 not presumed adverse to a cotenant ; the or- 
 dinary presumption is that such | 
 is held in the right of both tenants; Farm- 
 ers' & Merchants' Nat. Bank v. Wallace. 45 
 Ohio St 152, 12 N. E. 439: mere occur 
 and appropriation of rents ; Todd v. Todd, 
 117 111. 92, 7 N. E. 583 ; Blackaby v. Black- 
 aby, 185 111. 94, 56 N. E. 1053; or acquiesc- 
 ing in an adverse claim of a sub-tenant ; 
 Lee v. Livingston, 143 Mich. 203, 106 X. W. 
 713; will not affect the rights of the co- 
 tenants; and see Velott v. Lewis, 102 Pa. 326. 
 There must be an actual ouster; Morris v. 
 Davis, 75 Ga. 169; or exclusive possession 
 after demand ; or express notice of adverse 
 possession; or acts of exclusive ownership 
 of an unequivocal character; Rodney v. Mc- 
 Laughlin, 97 Mo. 426, 9 S. W. 72G ; Lindley 
 v. Groff, 37 Minn. 338, 34 N. W. 26 ; Breden 
 v. McLaurin, 9S N. C. 307, 4 S. E. 136; Kill- 
 nier v. Wuchner, 74 la. 359, 37 N. W. 77s. 
 The receipt of the entire profits, the exclu- 
 sive possession for twenty-one years, and a 
 claim of right for that time, will constitute 
 an ouster; Abrams v. Rhoner, 44 Hun (X. 
 Y.) 507; Dobbins v. Dobbins, 141 N. C. 210, 
 53 S. E. 870, 10 L. R. A. (N. S.) 1S5, 115 Am. 
 St. Rep. 682; or where a co-tenant asserts 
 possession under a deed purporting to con- 
 vey the whole title, he will be deemed to 
 have ousted his co-tenant; Wright v. Kley- 
 la, 104 Ind. 223, 4 N. E. 16 ; or where he de- 
 vises by will read in the presence of his co- 
 tenant; Miller v. Miller, 60 Pa. 16, 100 Am. 
 Dec. 538. The registration of a deed pur-
 
 ADVERSE POSSESSION 
 
 154 
 
 ADVERSE POSSESSION 
 
 porting to vest title to the entire tract in 
 the grantee is notice to the co-tenant of an 
 adverse holding; McCann v. Welch, 106 
 Wis. 142, 81 N. W. 996. One claiming by 
 adverse possession cannot avail himself of 
 the previous possession of another person 
 with whose title he is in no way connected ; 
 Stout v. Taul, 71 Tex. 438, 9 S. W. 329; 
 Ileflin v. Burns, 70 Tex. 347, 8 S. W. 48; 
 Witt v. Ry. Co., 38 Minn. 122, 35 N. W. 862. 
 If the combined periods of adverse posses- 
 sion of two successive holders equal twenty 
 years, the true owner will be deprived of his 
 title ; but there must be a privity of estate 
 such as a devise or conveyance; Sawyer v. 
 Kendall, 10 Cush. (Mass.) 241; Frost v. 
 Courtis, 172 Mass. 401, 52 N. E. 515. Where 
 privity is required, a defective deed or even 
 a mere oral transfer is sufficient; Weber v. 
 Anderson, 73 111. 439; and see 13 Harv. L. 
 Rev. 52. There can be no adverse posses- 
 sion against a state; Hurst v. Dulany, 84 
 Va. 701, 5 S. E. 802; but a state may ac- 
 quire a title by adverse possession ; Attorney 
 General v. Ellis, 198 Mass. 91, 84 N. E. 430, 
 15 L. R. A. (N. S.) 1120 ; Eldridge v. City of 
 Binghamton, 120 N. Y. 309, 24 N. E. 462; 
 Birdsall v. Cary, 66 How. Pr. (N. Y.) 358; 
 but see Whatley v. Patten, 10 Tex. Civ. App. 
 77, 31 S. W. 60. No length of adverse posses- 
 sion by user on the side of a highway by 
 an abutting owner gives title to him; Par- 
 sons v. Village of Rye, 140 N. Y. Supp. 961. 
 When both parties claim under the same 
 title ; as, if a man seised of certain land in 
 fee have issue two sons, and die seised, and 
 one of the sons enter by abatement into the 
 land, the statute of limitations will not op- 
 erate against the other son ; Co. Litt. s. 396. 
 There can be no adverse possession be- 
 tween husband and wife while the marital 
 relation continues to exist; Bell v. Bell, 37 
 Ala. 536. 79 Am. Dec. 73 ; Veal v. Robinson, 
 70 Ga. 809; Hendricks v. Rasson, 53 Mich. 
 575, 19 N. W. 192. 
 
 As against the purchaser at an execution 
 sale subject to dower, the possession of the 
 widow is not adverse; Robinson v. Allison, 
 124 Ala. 325, 27 South. 461; see 14 Harv. 
 L. Rev. 157. 
 
 When the possession of the one party is 
 consistent with the title of the other: as, 
 where the rents of a trust estate were re- 
 ceived by a cestui que trust for more than 
 twenty years without any interference of 
 the trustee, it was held not to be adverse to 
 the title of the trustee; 8 East 248. See 
 Poston v. Balch, 69 Mo. 117. When trust 
 property is taken possession of by a trustee, 
 it is the possession of the cestui que trust 
 and cannot be adverse until the trust is dis- 
 avowed, to the knowledge of the cestui que 
 trust; Reynolds v. Sumner, 126 111. 58, 18 
 N. E. 334, 1 L. R. A. 327, 9 Am. St. Rep. 523. 
 When the occupier has acknowledged the 
 claimant's title; as, if a lease be granted 
 for a term, and, after paying the rent for 
 
 the land during such term, the tenant hold 
 for twenty years without paying rent, his 
 possession will not be adverse. See 1 B. & 
 P. 542 ; 8 B. & C. 717. 
 
 The possession of the tenant becomes ad- 
 verse where, to the knowledge of the land- 
 lord, the tenant disclaims the tenancy, and 
 sets up a title adverse to the landlord; Wil- 
 lison v. Watkins, 3 Pet (U. S.) 43, 7 L. Ed. 
 596, where it was held that the rule that a 
 tenant cannot dispute his landlord's title 
 during the existence of his lease would not 
 defeat the right of tenant to acquire title 
 by adverse possession, after a repudiation of 
 the tenancy brought home to the landlord. 
 If a tenant disclaims the tenure, and claims 
 in his own right, of which the landlord has 
 notice, the tenancy is terminated and the 
 tenant becomes a trespasser, though the 
 period of the lease has not expired ; Walden 
 v. Bodley, 14 Pet. (U. S.) 156, 10 L. Ed. 
 398 ; Fusselman v. Worthington, 14 111. 145 ; 
 and the statute of limitations begins to run 
 from the time of the tenant's disclaimer and 
 the landlord's knowledge of it; Tillotson v. 
 Doe, 5 Ala. 407, 39 Am. Dec. 330; Duke v. 
 Harper, 6 Yerg. (Tenn.) 2S0, 27 Am. Dec. 
 462; Farrow's Heirs v. Edmundson, 4 B. 
 Monr. (Ky.) 606, 41 Am. Dec. 250; and if 
 continued will ripen into title; Sherman v. 
 Transp. Co., 31 Vt 162. There must be a 
 disclaimer by the tenant and hostile posses- 
 sion to the landlord's knowledge, or such 
 open and notorious possession as to raise 
 a presumption of notice; Dothard v. Denson, 
 72 Ala. 541. See generally Townsend v. 
 Boyd, 217 Pa. 386, 66 Atl. 1099, 12 D. R. A. 
 (N. S.) 1149. And see Jasperson v. Scharni- 
 kow, 150 Fed. 571, 80 C. C. A. 373, 15 L. R. 
 A. (N. S.) 1178. See Landlobd and Tenant; 
 Colob of Title. 
 
 The title by adverse possession for such a 
 period as is required by statute to bar an 
 action, is a fee-simple title, and is as effect- 
 ive as any otherwise acquired; Cox v. Cox, 
 17 Wash. L. Rep. 53; Northern Pac. R. Co. 
 v. Hasse, 197 TJ. S. 9, 25 Sup. Ct. 305, 49 L. 
 Ed. 642. 
 
 When there has been a severance of the 
 title to the surface and that to the minerals 
 beneath it, adverse possession of the surface 
 will not affect the title to the minerals; 
 Moreland v. Frick Coke Co., 170 Pa. 33, 32 
 Atl. 634; Lulay v. Barnes, 172 Pa. 331, 34 
 Atl. 52. 
 
 It is not material that a break in the 
 continuity of possession has been due to 
 outside causes; Holliday v. Cromwell, 37 
 Tex. 437 ; but in such a case it was held that 
 the running of the statute was suspended ; 
 Western v. Flanagan, 120 Mo. 61, 25 S. W. 
 531. 
 
 ADVERTISEMENT. Information or knowl- 
 edge communicated to individuals or the pub- 
 lic in a manner designed to attract general 
 attention.
 
 ADVERTISEMENT 
 
 155 
 
 ADVISE 
 
 A notice published in handbills, placards, 
 a newspaper, etc. ; cited in Darst v. Doom, 
 38 111. App. 397. 
 
 The law in many instances requires par- 
 ties to advertise in order to give notice of 
 acts which are to be done; in these cases, 
 the advertisement is in general equivalent 
 to notice. But there are cases in which 
 such notice is not sufficient, unless brought 
 home to the actual knowledge of the party. 
 Thus, notice of the dissolution of partner- 
 ship by advertisement in a newspaper print- 
 ed in the place where the business is carried 
 on, although it is of itself notice to all per- 
 sons who have had no previous dealings with 
 the firm, yet is not notice to those who have 
 had such previous dealings; it must be 
 shown that persons of the latter class have 
 received actual notice ; Watkiuson v. Bank, 
 4 Whart. (Pa.) 484, 34 Am. Dec. 521. See 
 Vernon v. Manhattan Co., 17 Wend. (N. Y.) 
 526; id., 22 Wend. (N. Y.) 183; Lind. Part. 
 ♦222 ; Mauldin v. Bank, 2 Ala. 502 ; Hutchins 
 v. Bank, 8 Humphr. (Tenn.) 418; 3 Bingh. 
 2. It has been held that the printed condi- 
 tions of a line of public coaches are suffi- 
 ciently made known to passengers by being 
 posted up at the place where they book their 
 names; Whitesell v. Crane, 8 W. & S. (Pa.) 
 373; 3 Esp. 271. An advertisement by a rail- 
 road corporation in a newspaper in the Eng- 
 lish language of a limitation of its liability 
 for baggage is not notice to a passenger who 
 does not understand English ; Camden & A. 
 R. Co. v. Baldauf, 16 Pa. 68, 55 Am. Dec. 481. 
 
 An ordinary advertising sheet is not a 
 newspaper for the purpose of advertisement 
 as required by law, and when notice is re- 
 quired to 6e published in two newspapers, 
 English papers are presumed to be intended ; 
 Tyler v. Bowen, 1 Pittsb. (Pa.) 225; the 
 posting up of a page of a newspaper, con- 
 taining a large number of separate adver- 
 tisements, will not be considered a handbill ; 
 Clark v. Chambers, 1 Pittsb. (Pa.) 224. 
 
 When an advertisement contains the terms 
 of sale, or description of the property to be 
 sold, it will bind the seller. 
 
 Advertisements published bona fide for the 
 apprehension of a person suspected of crime, 
 or for the prevention of fraud, are privileg- 
 ed ; Heard, Lib. & Sland. § 131. 
 
 A sign-board, at a person's place of busi- 
 ness, giving notice of lottery-tickets being 
 for sale there, is an "advertisement" ; Com. 
 v. Hooper, 5 Pick. (Mass.) 42. 
 
 See Notice; Flag. 
 
 ADVICE. Information given by letter by 
 one merchant or banker to another in regard 
 to some business transaction which concerns 
 him. Chit. Bills 1S5. 
 
 AD V ISA R I (Lat). To advise; to consid- 
 er; to be advised; to consult. See Curia 
 Advisari Vult. 
 
 ADVISE. To give advice; to counsel. 
 
 Long v. State, 23 Neb. 33, 36 N. W. 310. It 
 is different in meaning from instruct ; Peo- 
 ple v. Horn, 70 Cal. 17, 11 Pac. 470; or per- 
 suade; Wilson v. State, 38 Ala. 411. 
 
 ADVISEDLY. With deliberation; inten- 
 tionally. 15 Moore P. C. 147. 
 
 ADVISEMENT. Consideration; delibera- 
 tion ; consultation. "Upon deliberate advise- 
 ment, we are of opinion," etc. In re Ilohorst, 
 150 U. S. 662, 14 Sup. Ct. 221, 37 L. Ed. 1211 
 
 ADVISORY. Suggestive, but not conclu- 
 sive. 
 
 ADVISORY OPINION. See Opinion of 
 Judges. 
 
 ADVOCATE. An assistant; adviser; a 
 pleader of causes. 
 
 Derived from advocare, to summon to one's as- 
 sistance ; advocatus originally signified an assistant 
 or helper of any kind, even an accomplice in the 
 commission of a crime; Cicero, Pro L'&cina, c. 8; 
 Livy, lib. ii. 55; ill. 47; Tertullian, De Idolatr. cap. 
 xxiii.; Petron. Satyric. cap. xv. Secondarily, it 
 was applied to one called in to assist a party in the 
 conduct of a suit; Inst. 1, 11, D, 50, 13. de extr. cogn. 
 Hence, a pleader, which is its present signification. 
 
 In Scotch and Ecclesiastical Law. An offi- 
 cer of the court, learned in the law, who is 
 engaged by a suitor to maintain or defend 
 his cause. Advocates, like counsellors, have 
 the exclusive privilege of addressing the 
 court either orally or in written pleadings ; 
 and, in general, in regard to duties, liabili- 
 ties, and privileges, the same rules apply 
 mutatis mutandis to advocates as to counsel- 
 lors. See Counsellor. 
 
 In the English ecclesiastical and admiralty 
 courts, advocates had the exclusive right of 
 acting as counsel. They were incorporated 
 (8 Geo. III.) under the title of "The C< 
 of Doctors of Law Exercent in the Ecclesi- 
 astical and Admiralty Courts." In 1857, on 
 the creation of the new court of probate and 
 matrimonial causes, this college was empow- 
 ered to surrender its charter and sell its 
 real estate. 
 
 In Scotland all barristers are called advo- 
 cates. 
 
 Lord Advocate. — An officer in Scotland ap- 
 pointed by the crown, during pleasure, to 
 take care of the king's interest before the 
 courts of session, justiciary, and exchequer. 
 All actions that concern the king's interest. 
 civil or criminal, must be carried on with 
 concourse of the lord advocate. He also dis- 
 charges the duties of public prosecutor, ei- 
 ther in person or by one of his four deputies, 
 who are called advocates-depute. Indict- 
 ments for crimes must be in his name as ac- 
 cuser. He supervises the proceedings in im- 
 portant criminal cases, and has the right to 
 appear in all such cases. lie is, in fact, sec- 
 retary of state for Scotland, and his princi- 
 pal duties are connected directly with the 
 administration of the government. 
 
 Inferior courts have a procurator fiscal. 
 who supplies before them the place of the
 
 ADVOCATE 
 
 15G 
 
 ADYOCATI 
 
 lord advocate in criminal cases. See 2 
 Bankt. Inst. 492. 
 
 College or Faculty of Advocates.— A cor- 
 porate body in Scotland, consisting of the 
 members of the bar in Edinburgh. A large 
 portion of its members are not active prac- 
 titioners, however; 2 Bankt. Inst. 4S6. 
 
 Queen's Advocate. — A member of the Col- 
 lege of Advocates, appointed by letters pat- 
 ent to advise the crown on questions of civil, 
 canon, and ecclesiastical law. lie takes pre- 
 cedence next after the solicitor general. 
 
 Church or Ecclesiastical Advocates. — 
 Pleaders appointed by the church to main- 
 tain its rights. 
 
 In Ecclesiastical Law. A patron of a liv- 
 ing; one who has the advowson, advocatio. 
 Tech. Diet.; Ayliffe, Par. 53; Dane, Abr. c. 
 81, § 20 ; Erskine, Inst. 79, 9. 
 
 Those persons whom we now call patrons 
 of churches, and who reserved to themselves 
 and their heirs a license to present on any 
 avoidance. The term originally belonged to 
 the founders of churches and convents and 
 their heirs, who were bound to protect their 
 churches as well as to nominate or present 
 to them. But when the patrons grew negli- 
 gent of their duty or were not of ability or 
 interest in the courts of justice, then the 
 religious began to retain law advocates, to 
 solicit and prosecute their causes. Spelm. ; 
 Jacob, Daw Diet. 
 
 A person admitted by the Archbishop of 
 Canterbury to practise in the court of arches 
 in the same manner as barristers in the com- 
 mon law courts. Rap. & Law. Law Diet. 
 
 ADVOCATI (Lat). In Roman Law. Pa- 
 trons; pleaders; speakers. 
 
 Originally the management of suits at law was 
 undertaken by the patronus for his cliens as a mat- 
 ter of duty arising out of their reciprocal relation. 
 Afterwards it became a profession, and the rela- 
 tion, though a peculiarly confidential one while It 
 lasted, was but temporary, ending with the suit. 
 The profession was governed by very stringent 
 rules: a limited number only were enrolled and 
 allowed to practise in the higher courts — one hun- 
 dred and fifty before the prcefectus prcetorio; Dig. 
 8, 11; Code 2, 7; fifty before the prcef. aug. and 
 dux Mgypticus at Alexandria; Dig. 8, 13; etc., 
 etc. The enrolled advocates were called advocati 
 ordinarii. Those not enrolled were called adv. su- 
 pernumerarii or extraordinarii, and were allowed to 
 practise in the Inferior courts; Dig. 8, 13. From their 
 ranks vacancies in the list of ordinarii were filled; 
 Ibid. The ordinarii were either fiscales, who were 
 i appointed by the crown for the management of 
 6uits in which the Imperial treasury was concerned, 
 and who received a salary from the state ; or 
 privati whose business was confined to private caus- 
 es. The advocati ordinarii were bound to lend 
 their aid to every one applying to them, unless a 
 just ground existed for a refusal; and they could 
 be compelled to undertake the cause of a needy 
 party ; 1. 7, c. 2, 6. The supernumerarii were not 
 thus obliged, but, having once undertaken a cause, 
 were bound to prosecute or defend It with diligence 
 and fidelity. 
 
 The client must be defended against every per- 
 son, even the emperor, though the advocati fiscales 
 could not undertake a cause against the fiscus with- 
 out a special permission; 11. 1 et 2, C. 2, 9; unless 
 such cause was their own, or that of their parents, 
 children, or ward; 1. 10, pr. C. 11, D. 3, 1. 
 
 An advocate must have been at least seventeen 
 years of age; 1. 1, § 3, D. 3, 1 ; he must not be 
 blind or deaf; 1. 1, §§ 3 et 6, D. 3, 1; he must be 
 of good repute, not convicted of an Infamous act; 
 1. 1, 8 8, D. 3, 1 ; he could not be advocate and 
 judge in the same cause; 1. 6, pr. C. 2, 6; he could 
 not even be a judge in a suit In which he had been 
 engaged as advocate; L 17, D. 2, 1; 1. 14, C. 1, 61; 
 nor after being appointed judge could he practise 
 as advocate even in another court; 1. 14, pr. C. 1, 
 51; nor could he be a witness in the cause in which 
 he was acting as advocate; 1. ult. D. 22, 5; 22 
 Gliick, Pand. p. 161, et seq. 
 
 He was bound to bestow the utmost care and at- 
 tention upon the cause, nihil studii reliquentes quod 
 sibi possibile est; 1. 14, § 1, C. 3, 1. He was liable 
 to his client for damages caused in any way by 
 his fault; 5 Gliick, Pand. 110. If he had signed the 
 concepit, he was responsible that it contained no 
 matter punishable or improper ; Boehmer, Cons, et 
 Decis. t. ii. p. 1, resp. cviii. no. 5. He must clearly 
 and correctly explain the law to his clients, and 
 honestly warn them against transgression or neg- 
 lect thereof. He must frankly inform them of the 
 lawfulness or unlawfulness of their cause of action, 
 and must be especially careful not to undertake a 
 cause clearly unjust, or to let himself be used as 
 an instrument of chicanery, malice, or other un- 
 lawful action; 1. 6, §§ 3, 4, C. 2, 6; 1. 13, § 9; 1. 
 14, § 1, C. 3, 1. In pleading, he must abstain from 
 invectives against the judge, the opposite party or 
 his advocate ; 1. 6, § 1, C. 2, 6. Should it become 
 necessary or advantageous to mention unpleasant 
 truths, this must be done with the utmost forbear- 
 ance, and in the most moderate language ; 5 Gliick, 
 Pand. HI. Conscientious honesty forbade his be- 
 traying secrets confided to him by his client or 
 making any improper use of them; he should ob- 
 serve inviolable secrecy in respect to them ; ibid. ; 
 he could not, therefore, be compelled to testify in 
 regard to such secrets ; 1. ult. D. 22, 5. 
 
 If he violated the above duties, he was liable, in 
 addition to compensation for the damage thereby 
 caused, to fine, or imprisonment, or suspension, or 
 entire removal from practice, or to still severer 
 punishment, particularly where he had been guilty 
 of a prasvaricatio, or betrayal of his trust for the 
 benefit of the opposite party; 6 Gliick, Pand. 111. 
 
 Compensation. — By the lex Cincia, A. TJ. C. 549, 
 advocates were prohibited from receiving any re- 
 ward for their services. In course of time this be- 
 came obsolete. Claudius allowed It, and fixed ten 
 thousand sesterces as the maximum fee. Trajan 
 prohibited this fee, called honorarium, from being 
 paid before the termination of the action. This, too, 
 was disregarded, and prepayment had become law- 
 ful In the time of Justinian; 5 Gliick, Pand. H7. 
 The fee was regulated by law, unless the advocate 
 had made a special agreement with his client, when 
 the agreement fixed the amount. But a pactum de 
 quota litis, i. e., an agreement to pay a contingent 
 fee, was prohibited, under penalty of the advocate's 
 forfeiting his privilege of practising; 1. 5, C. 2, 
 6. A palmarium, or conditional fee in addition to 
 the lawful charge and depending upon his gaining 
 the cause, was also prohibited ; 5 Gliick, Pand. 120 
 et seq. But an agreement to pay a palmarium 
 might be enforced when it was not entered into till 
 after the conclusion of the suit; 1. 1, § 12, D. 50, 13. 
 The compensation of the advocate might also be 
 in the way of an annual salary ; 5 Gliick, Pand. 
 122. 
 
 Remedy. — The advocate had the right to retain 
 papers and Instruments of his client until payment 
 of his fee ; 1. 26, Dig. 3, 2. Should this fail, he 
 could apply for redress to the court where the causa 
 was tried by petition, a formal action being unnec- 
 essary; 5 Gliick, Pand. 122. 
 
 Anciently, any one who lent his aid to a friend, 
 and who was supposed to be able in any way to In- 
 fluence a judge, was called advocatus. 
 
 Causidicus denoted a speaker, or pleader merely; 
 advocatus resembled more nearly a counsellor; or, 
 still more exactly, causidicus might be rendered 
 barrister, and advocatus attorney, or solicitor.
 
 ADVOCATI 
 
 157 
 
 ADVOWTRY, ADVOUTRY 
 
 though the duties of an advocatus were much more 
 extended than those of a modern attorney ; Du 
 Cange; Calvinus, Lex. 
 
 A witness. 
 
 ADVOCATI ECCLESI/E. Advocates of 
 
 the church. 
 
 These were of two sorts: those retained as 
 pleaders to argue the cases of the church and at- 
 tend to its law-matters ; and advocates, or patrons 
 of the advowson. Cowell ; Spelman, Gloss. 
 
 ADVOCATI FISCI. In Civil Law. Those 
 chosen by the emperor to argue his cause 
 whenever a question arose affecting his rev- 
 enues. 3 Bla. Com. 27. 
 
 ADVOCATIA. In Civil Law. The func- 
 tions, duty, or privilege of an advocate. Du 
 Cange, Advocatia. 
 
 ADVOCATUS. A pleader; a narrator. 
 Bracton, 412 a, 372 o. 
 
 ADVOWSON. A right of presentation to 
 a church or benefice. 
 
 He who possesses this right la called the patron 
 or advocate. When there is no patron, or he neg- 
 lects to exercise his right within six months, it is 
 called a lapse, and a title Is given to the ordinary 
 to collate to a church: when a presentation is made 
 by one who has no right, it is called a usurpation. 
 
 Advowsons are of different kinds; as ad- 
 vowson appendant, when it depends upon 
 a manor, etc. ; advowson in gross, when it 
 belongs to a person and not to a manor ; ad- 
 vowson preservative, where the patron pre- 
 sents to the bishop; advoioson donative, 
 where the king or patron puts the clerk into 
 possession without presentation; advowson 
 collative, where the bishop himself is a pa- 
 tron ; advowson of the moiety of the church, 
 where there are two several patrons and 
 two incumbents in the same church ; a moie- 
 ty of advowson, where two must join the 
 presentation of one incumbent; advowson of 
 religious Iwuses, that which is vested in the 
 person who founded such a house. 2 Bla. 
 Com. 21; Mirehouse, Advowsons; Comyns, 
 Dig. Advowson, Quare Impcdit ; Bacon, Abr. 
 Bimony; Burns, Eccl. Law. See 2 Poll. & 
 Maitl. 135. 
 
 An advowson in modern times and in or- 
 dinary language has, no doubt, been used to 
 mean the perpetual right of presentation to 
 a church or ecclesiastical benefice. An ad- 
 vowson in the limited sense of the word may 
 be separated from the manor to which it is 
 attached and perpetual right of presentation 
 to a church may be severed from the lord- 
 ship of the manor. Where an almshouse has 
 been established by a lord of the manor, 
 which afterwards became vested in the 
 Crown by attainder, the charity also vested 
 in the Crown by attainder and the right, of 
 nominating a master was analogous to an 
 advowson separable from the manor and 
 capable of being passed by grant from the 
 Crown subsequent to the attainder; 22 D. J. 
 Ch. 84 G. 
 
 ADVOWTRY, ADVOUTRY. The crime 
 committed by a woman who, having commit- 
 
 ted adultery, continued to live with the adul- 
 terer. Cowell. 
 
 /EDES. In Civil Law. A dwelling; a 
 
 house; a temple. In the country everything 
 upon the surface of the soil passed under the 
 term ades. Du Cange. 
 
 /EDILE. In Roman Law. An officer who 
 attended to the repairs of the temples and 
 other public buildings; the repairs and clean- 
 liness of the streets; the care of the we 
 and measures; the providing for funerals 
 and games; and to regulating the pri< 
 provisions. Ainsworth, Lex.; Smith, Lex.; 
 Du Cange. 
 
 /EDILITIUM EDICTUM. In Roman Law. 
 
 That provision by which the buyer of a dis- 
 eased or imperfect slave, horse, or other ani- 
 mal was relieved at the expense of thr 
 dor who had sold him as sound knowing 
 him to be imperfect. Calvinus, Lex. 
 
 A EL (Norman). A grandfather. Spelled 
 also aieul, ayle. Kelham. 
 
 /EQUITAS. In Roman Law. Referring to 
 the use of this term, Prof. Gray says (Na- 
 ture and Sources of the Law 290) : '•Austin 
 and Maine take wquitas as having an anal- 
 ogous meaning to equity ; they apply the 
 term to those rules which the praetors intro- 
 duced through the Edict in modification of 
 the jus civile, but it seems to be an error to 
 suppose that wquitas had this sense in the 
 Roman Law." He quotes Prof. Clark (Juris- 
 prudence 367) as doubting "whether wquitas 
 is ever clearly used by the Roman jurists bo 
 indicate simply a department of Law" and 
 expresses the opinion that an examination of 
 the authorities more than justifies his doubt. 
 sEquitas is opposed to strictum jus and va- 
 ries in meaning between reasonable modifica- 
 tion of the letter and substantial justice. It 
 is to be taken as a frame of mind in dealing 
 with legal questions and not as a source of 
 law. 
 
 See JEquum et Boxiwr. 
 
 /EQUUM ET BO NUM. "The Roman con- 
 ception involved in 'cequum et bonum' 1 or 
 'ivquitas'' is identical with what we mean by 
 'reasonable' or nearly so. On the whole, the 
 natural justice or 'reason of the thing' which 
 the common law recognizes and applies does 
 not appear to differ from the 'law of nature' 
 which the Romans identified with jw 
 tium, and the medieval doctors of the civil 
 and common law boldly adopted as being di- 
 vine law revealed through man's natural rea- 
 son." Sir F. Pollock, Expans. of C. L. 111. 
 citing [1902] 2 Ch. GG1, where jus naturale 
 and wquum ct bonum were taken to have the 
 same meaning. 
 
 AERIAL NAVIGATION. See Aviation. 
 
 /ES ALIENUM. In Civil Law. A debt. 
 Literally translated, the money of another; the 
 civil law considering borrowed money as the prop-
 
 JES ALTENUM 
 
 158 
 
 AFFIDARE 
 
 erty of another, as distinguished from as suum, 
 one's own. 
 
 /ESNEClUS. See Anecius. 
 
 /ESTIMATIO CAPITIS (Lat the value of 
 a head). The price to be paid for taking the 
 life of a human being. 
 
 King Athelstan declared, in an assembly held at 
 Exeter, that mulcts were to be paid per cestima- 
 tionem capitis. For a king's head (or life), 30,000 
 thuringas ; for an archbishop's or prince's, 15,000; 
 for a priest's or thane's, 2,000 ; Leg. Hen. L 
 
 jETAS INFANTILI PROXIMA (Lat). The 
 age next to infancy. Often written cetas in- 
 fantia proximo,. This lasted until the age 
 of twelve years; 4 Bla. Com. 22. See Age. 
 
 /ETAS PUBERTATI PROXIMA (Lat). 
 The age next to puberty. This lasted until 
 the age of fourteen, in which there might or 
 might not be criminal responsibility accord- 
 ing to natural capacity or incapacity. Un- 
 der twelve, an offender could not be guilty in 
 will, neither after fourteen could he be sup- 
 posed innocent, of any capital crime which 
 he in fact committed. 4 Bla. Com. ch. il 
 See Age. 
 
 AFFAIR (Fr.). A law suit 
 
 AFFECT. To lay hold of, to act upon, im- 
 press or influence. It is often used in the 
 sense of acting injuriously upon persons and 
 things. Ryan v. Carter, 93 U. S. 84, 23 L. 
 _Ed. 807; Baird v. Hospital Ass'n, 116 Mo. 
 419, 22 S. W. 726. 
 
 AFFECTION. The making over, pawn- 
 ing, or mortgaging a thing to assure the pay- 
 ment of a sum of money, or the discbarge of 
 some other duty or service. Crabb, Techn. 
 Diet 
 
 As to affection as a consideration, see Con- 
 sideration. 
 
 AFFECTUS (Lat). Movement of the 
 mind ; disposition ; intention. See Chal- 
 lenge. 
 
 A F F E E R. To fix in amount ; to liquidate ; 
 to settle. 
 
 To affeer an amercement. To establish 
 the amount which one amerced in a court- 
 leet should pay. See Amercement. 
 
 To affeer an account. To confirm it on 
 oath in the exchequer. Cowell ; Blount 
 
 AFFEERORS. Those appointed by a 
 court-leet to mulct those punishable, not by a 
 fixed fine, but by an arbitrary sum called 
 amercement, q. v.; 4 Bla. Com. 379. 
 
 AFFIANCE. To assure by pledge. A 
 plighting of troth between man and woman. 
 Littleton, § 39. 
 
 An agreement by which a man and woman 
 promise each other that they will marry to- 
 gether. Pothier, Traits du Mar. n. 24. Co. 
 Litt 34 o. See Dig. 23, 1. 1 ; Code, 5. 1. 4. 
 
 AFFIANT. A deponent; one who makes 
 an affidavit. 
 
 AFFIDARE (Lat ad fldem dare). To 
 
 pledge one's faith or do fealty by making 
 oath. Cowell. 
 
 Used of the mutual relation arising between land- 
 lord and tenant; 1 Washb. R. P. 19; 1 Bla. Com. 
 367; Termes de la Ley, Fealty. Affidavit Is of kin- 
 dred meaning. 
 
 AF FID AT US. One who is not a vassal, 
 but who for the sake of protection has con- 
 nected himself with one more powerful. 
 Spelrnan, Gloss. ; Jacob, L. Diet 
 
 AFFIDAVIT. A statement or declaration 
 reduced to writing, and sworn to or affirmed 
 before some officer who has authority to ad- 
 minister an oath or affirmation. Quoted and 
 approved in Shelton v. Berry, 19 Tex. 154, 
 70 Am. Dec. 326. 
 
 It differs from a deposition in this, that in the lat- 
 ter the opposite party has an opportunity to cross- 
 examine the witness, whereas an affidavit is always 
 taken ex parte; Gresley, Eq. Ev. 413; Stimpson v. 
 Brooks, 3 Blatch. 456, Fed. Cas. No. 13,454. 
 
 An affidavit includes the oath, and may 
 show what facts the affiant swore to, and 
 thus be available as an oath, although un- 
 available as an affidavit ; Burns v. Doyle, 28 
 Wis. 460. 
 
 By general practice, affidavits are allow- 
 able to present evidence upon the hearing 
 of a motion, although the motion may in- 
 volve the very merits of the action; but 
 they are not allowable to present evidence 
 on the trial of an issue raised by the plead- 
 ings. * Here the witnesses must be produced 
 before the adverse party. They are gener- 
 ally required on all motions to open defaults 
 or to grant delay in the proceedings and in 
 other applications by the parties addressed 
 to the favor of the court. 
 
 Formal parts. — An affidavit must intelli- 
 gibly refer to the cause in which it is made. 
 The strict rule of the common law is that 
 it must contain the exact title of the cause. 
 This, however, is not absolutely essential ; 
 Harris v. Lester, 80 111. 307. If not entitled 
 in the cause it cannot be considered in op- 
 position to a motion for preliminary injunc- 
 tion ; Goldstein v. Whelan, 62 Fed. 124. 
 
 The place where the affidavit is taken 
 must be stated, to show that it was taken 
 within the officer's jurisdiction; 1 Barb. Ch. 
 Pr. 601 ; if the officer in signing the jurat 
 fails to add the name of the county for which 
 he is appointed, if it already appears in the 
 caption, it will not be defective; Smith v. 
 Runnells, 94 Mich. 617, 54 N. W. 375. The 
 deponent must sign the affidavit at the end ; 
 Hathaway v. Scott, 11 Paige Ch. (N. Y.) 173. 
 The jurat must be signed by the officer with 
 the addition of his official title. In the case 
 of some officers the statutes conferring au- 
 j thority to take affidavits require also his seal 
 i to be affixed. 
 
 In the absence of a rule of court or statute 
 requiring it, if affiant's name appears in an 
 affidavit as the person who took the oath, 
 the subscription to it by affiant is not nec- 
 essary; Norton v. Hauge, 47 Minn. 405, 50
 
 AFFIDAVIT 
 
 159 
 
 AFFIDAVIT OF DEFENCE 
 
 N. W. 368 ; Shelton v. Berry, 19 Tex. 154, 70 
 Am. Dec. 326, or if his name is omitted in 
 the body of the verification but it is properly 
 signed, it is sufficient ; Cunningham v. Doyle, 
 5 Misc. Rep. 219, 25 N. Y. Supp. 476. If the 
 notary fails to attach his seal to an affidavit 
 of an assignee in insolvency, it is not void ; 
 Clement v. Bullens, 159 Mass. 193, 34 N. E. 
 173 ; if he omits to add his name in the jurat 
 In an affidavit for a writ of certiorari, the 
 court may permit it to be done nunc pro 
 tunc; State v. Cordes, S7 Wis. 373, 58 N. W. 
 771; if he omits to add his title it is not 
 invalid; Jackman v. Gloucester, 143 Mass. 
 380, 9 N. E. 740. 
 
 In an affidavit which is to be the basis of 
 judicial action the nature and quality and 
 perhaps the source of information must be 
 set forth, so that the court may be able to 
 ascertain whether the party is right in en- 
 tertaining the belief to which he deposes; 
 Whitlock v. Koth, 10 Barb. (N. Y.) 78. 
 
 A "denial upon information and belief, 
 without stating the sources of information 
 and belief, can have no weight as against the 
 appellant's positive affidavit as to what is 
 still due him"; Harris v. Taylor, 35 App. 
 Div. 462, 54 N. Y. Supp. 864. So-called evi- 
 dence on information and belief "ought not 
 to be looked at at all, not only unless the 
 court can ascertain the sources of the infor- 
 mation and belief, but also unless the de- 
 ponent's statements are corroborated by 
 someone who speaks from his own knowl- 
 edge" ; [1900] 2 Ch. 753. Such an affidavit 
 should show that the persons from whom 
 the information is obtained are absent or 
 that their deposition cannot be obtained; 
 Steuben County Bank v. Alberger, 78 N. Y. 
 252. 
 
 In general, an affidavit must describe the 
 deponent sufficiently to show that he is en- 
 titled to offer it; for example, that he is a 
 party, or agent or attorney of a party, to 
 the proceeding; Ex parte Bank of Monroe, 
 7 Hill (N. Y.) 177, 42 Am. Dec. 61 ; Cunning- 
 ham v. Goelet, 4 Denio (N. Y.) 71 ; Ex parte 
 Shumway, id. 258, and this matter must be 
 stated, not by way of recital or as mere de- 
 scription, but as an allegation in the affi- 
 davit; Staples v. Fairchild, 3 N. Y. 41; Payne 
 v. Young, 8 N. Y. 158. 
 
 See Jurat. 
 
 AFFIDAVIT OF DEFENCE. A sworn 
 statement made in proper form that the de- 
 fendant has a good ground of defence to the 
 action upon the merits. 
 
 The statements required in such an affidavit vary 
 considerably in the different states where they are 
 required. In some, it must state a ground of de- 
 fence ; McCarney v. McCamp, 1 Ashm. (Pa.) A; in 
 others, a simple statement of belief that a defence 
 exists is sufficient. Called also an affidavit of mer- 
 its, as in Massachusetts. See as to its salutary 
 effect, Lord v. Bank, 20 Pa. 387, 59 Am. Dec 728 ; 
 Taggart v. Fox, 1 Grant (Pa.) 190. 
 
 It must be made by the defendant, or some 
 person in his behalf who possesses a knowl- 
 
 edge of the facts ; McCarney v. McCamp, 1 
 Ashm. (ra.) 4. In a suit against a corpora- 
 tion an affidavit of defence made by a mere 
 stockholder should set out some reason why 
 it is not made by an officer or director ; Erie 
 Boot & Shoe Co. v. Eichenlaub, 127 Pa. 164, 
 17 Atl. 889. 
 
 The effect of a failure to make such affi- 
 davit is, in a case requiring one, to default 
 the defendant; Slocum v. Slocum, 8 Watts 
 (Pa.) 367. It was first established in Phila- 
 delphia by agreement of members of the bar ; 
 Vanatta v. Anderson, 3 Binn. (Pa.) 417; and 
 afterwards by act of assembly. A law per- 
 mitting judgment in default of such an af- 
 fidavit is constitutional; Lawiance v. Borm, 
 86 Pa. 225. 
 
 It is no part of the pleadings ; it is merely 
 to prevent a summary judgment; the case 
 may be put at issue on other grounds than 
 those stated therein; Muir v. Ins. Co., 203 
 Pa. 33S, 53 Atl. 158. 
 
 AFFIDAVIT TO HOLD TO BAIL. An af- 
 fidavit which is required in many cases be- 
 fore a person can be arrested. 
 
 Such an affidavit must contain a state- 
 ment, clearly and certainly expressed, by 
 some one acquainted with the fact, of an 
 indebtedness from the defendant to the plain- 
 tiff, and must show a distinct cause of ac- 
 tion ; 1 Chit PI. 165. See Bail. 
 
 AFFILARE. To put on record; to file 
 8 Coke 319 ; 2 M. & S. 202. 
 
 AFFILIATION. The act of imputing or 
 determining the paternity of a child. 
 
 A species of adoption which exists by cus- 
 tom in some parts of France. The person af- 
 filiated succeeded equally with other heirs 
 to the property acquired by the deceased to 
 whom he had been affiliated, but not to that 
 which he inherited. 
 
 In Ecclesiastical Law. A condition which 
 prevented the superior from removing the 
 person affiliated to another convent Guyot, 
 R&pert. 
 
 AF FINES. In Civil Law. Connections by 
 marriage, whether of the persons or their 
 relatives. Calvinus, Lex. 
 
 From this word we have affinity, denoting rela- 
 tionship by marriage; 1 Bla. Com. 434. 
 
 The singular, affinis, is used in a variety of re- 
 lated significations— a boundary ; Du Cange ; a par- 
 taker or sharer, affiyiis culpce (an aider or one who 
 has knowledge of a crime); Calvinus, Lex. 
 
 AFFINITAS. In Civil Law. Affinity. 
 
 AFFINITAS AFFINITATIS. That con- 
 nection between parties arising from mar- 
 riage which is neither consanguinity nor af- 
 finity. 
 
 This term signifies the connection between the 
 kinsmen of the two persons married, as, for exam- 
 ple, the husband's brother and the wife's sister ; 
 Ersklne, Inst 1. 6. 8. 
 
 AFFINITY. The connection existing, in 
 consequence of marriage, between each of 
 the married persons and the kindred of the
 
 AFFINITY 
 
 160 
 
 AFFIRMANCE-DAY-GENERAL 
 
 other. Solinger v. Earle, 45 N. Y. Super. 
 Ct. 84. 
 
 It is distinguished from consanguinity, which de- 
 notes relationship by blood. Affinity is the tie which 
 exists between one of the spouses with the kindred 
 of the other: thus, the relations of my wife, her 
 brothers, her sisters, her uncles, are allied to me by 
 affinity, and my brothers, sisters, etc., are allied in 
 the same way to my wife. But my brother and the 
 sister of my wife are not allied by the ties of af- 
 finity. 
 
 A person cannot, by legal succession, re- 
 ceive an inheritance from a relation by af- 
 finity ; neither does it extend to the nearest 
 relations of husband and wife, so as to cre- 
 ate a mutual relation between them. The 
 degrees of af'.inity are computed in the same 
 way as those of consanguinity. See 1 Bla. 
 Com. 435; Pothier, TraitS du Mar. pt. 3, c. 
 3. art. 2 ; Inst. 1, 10, 6 ; Dig. 38, 10, 4, 3 ; 1 
 Phill. Feci. 210; Poydras v. Livingston, 5 
 Mart O. S. (La.) 296. 
 
 AFFIRM (Lat. aflirmare, to make firm; to 
 establish). 
 
 To ratify or confirm a former law or judg- 
 ment. Cowell. 
 
 Especially used of confirmations of the judgments 
 of an inferior by an appellate tribunal. 
 
 To ratify or confirm a voidable act of the 
 party. 
 
 To make a solemn religious asseveration 
 in the nature of an oath. See Affirmation. 
 
 AFFIRMANCE. The confirmation of a 
 voidable act by the party acting, who is to 
 be bound thereby. 
 
 The term is in accuracy to be distinguished from 
 ratification, which is a recognition of the validity 
 or binding force as against the party ratifying, of 
 some act performed by another person ; and from 
 confirmation, which would seem to apply more prop- 
 erly to cases where a doubtful authority has been 
 exercised by another In behalf of the person ratify- 
 ing ; but these distinctions are not generally ob- 
 served with much care; 1 Pars. Contr. 243. 
 
 Express affirmance takes place where the 
 party declares his determination of fulfilling 
 the contract; Martin v. Byrom, Dudl. (Ga!) 
 203. 
 
 A mere acknowledgment that the debt existed, or 
 that the contract was made, is not an affirmance ; 
 Robbins v. Baton, 10 N. H. 561; 2 Bsp. 628; Cham- 
 bers v. Wherry, 1 Bail. (S. C.) 28 ; Benham v. 
 Bishop, 9 Conn. 330, 23 Am. Dec. 358; Alexander v. 
 Hutcheson, 9 N. C. 535 ; Ford v. Phillips, 1 Pick. 
 (Mass.) 203; Martin v. Byrom, Dudl. (Ga.) 203; 
 it must be a direct and express confirmation, and 
 substantially (though it need not be In form) a 
 promise to pay the debt or fulfill the contract; 
 Goodsell v. Myers, 3 "Wend. (N. Y.) 479 ; Rogers v. 
 Hurd, 4 Day (Conn.) 57, 4 Am. Dec. 182; Wilcox 
 v. Roath, 12 Conn. 550; Hale v. Gerrish, 8 N. H. 
 874; Bigelow v. Grannis, 2 Hill (N. Y.) 120; Mil- 
 lard v. Hewlett, 19 Wend. (N. Y.) 301. 
 
 Implied affirmance arises from the acts of 
 the party without any express declaration; 
 Boston Bank v. Chamberlin, 15 Mass. 220. 
 See Aldrich v. Grimes, 10 N. H. 194; Curtin 
 v. Patton, 11 S. & R. (Pa.) 305; 1 Bla. Com. 
 466, n. 10. See Confirmation; Ratifica- 
 tion. 
 
 The confirmation by an appellate court of 
 the judgment of a lower court. 
 
 AFFIRMANCE-DAY-GENERAL. In the 
 English Court of Exchequer, is a day ap- 
 pointed by the judges of the common pleas 
 and barons of the exchequer, to be held a 
 few days after the beginning of every term 
 for the general affirmance or reversal of 
 judgments. 2 Tidd, Pract. 1091. 
 
 AFFIRMANT. One who makes affirma- 
 tion instead of making oath that the evi- 
 dence which he is about to give shall be the 
 truth, as if he had been sworn. 
 
 He is liable to all the pains and penalty of per- 
 jury, if he shall be guilty of willfully and mali- 
 ciously violating his affirmation. See Perjury. 
 
 AFFIRMATION. A solemn religious as- 
 severation in the nature of an oath. 1 
 Greenl. Ev. § 371. 
 
 Quakers, as a class, and other persons who have 
 conscientious scruples against taking an oath, are 
 allowed to make affirmation in any mode which 
 they may declare to be binding upon their con- 
 sciences, in confirmation of the truth of testimony 
 which they are about to give ; 1 Atk. 21, 46 ; Cowp. 
 340, 389; 1 Leach Cr. Cas. 64; 1 Ry. £ M. 77; Vail 
 v. Nickerson, 6 Mass. 262; Com. v. Buzzell, 16 Pick. 
 (Mass.) 153; Buller, N. P. 292; 1 Greenl. Ev. § 371. 
 See oaths and affirmations in Great Britain and 
 Ireland, etc., reviewed in 25 Law J. 169 ; Oath. 
 
 AFFIRMATIVE. That which establishes; 
 that which asserts a thing to be true. 
 
 It is a general rule of evidence that the 
 affirmative of the issue must be proved ; 
 Buller, N. P. 29S ; Peake, Ev. 2. But when 
 the law requires a person to do an act, and 
 the neglect of it will render him guilty and 
 punishable, the negative must be proved, be- 
 cause every man is presumed to do his duty, 
 and in that case they who affirm he did not 
 must prove it; 1 Rolle 83; 3 Bos. & P. 307. 
 See Burden of Proof. 
 
 AFFIRMATIVE PREGNANT. An affirma- 
 tive allegation implying some negative in 
 favor of the adverse party. 
 
 For example, if to an action of assumpsit, 
 which is barred by the statute of limita- 
 tions in six years, the defendant pleads that 
 he did not undertake, etc., within ten years, 
 a replication that he did undertake, etc., 
 within ten years would be an affirmative 
 pregnant ; since it would impliedly admit 
 that the defendant had not promised within 
 six years. Such a plea should be demurred 
 to ; Gould, PI. c. 6, §§ 29, 37 ; Steph. PI. 381 ; 
 Bacon, Abr. Pleas (n. 6). 
 
 AFFIX. To attach or annex. See Fix- 
 tures. 
 
 AFF0RCE THE ASSIZE. To compel 
 unanimity among the jurors who disagree. 
 
 It was done either by confining them with- 
 out meat and drink, or, more anciently, by 
 adding other jurors to the panel, to a lim- 
 ited extent, securing the concurrence of 
 twelve in a verdict. See Bracton, 1S5 6, 
 292 a; Fleta, book 4, c. 9. § 2. 
 
 The practice is now discontinued. 
 
 AFFORESTATION. The turning of a part 
 of a country into forest or woodland or sub- 
 jecting it to forest law. q. v.
 
 AFFRANCHISE 
 
 161 
 
 AFORETHOUGHT 
 
 AFFRANCHISE. To make free. 
 
 AFFRAY. The fighting of two or more 
 persons in a public place to the terror of the 
 people. 
 
 Mere words cannot amount to an affray. 
 Any person is justified in using force to part 
 the combatants; 1 Cr. M. & R. 7.17. 
 
 It differs from a riot in not being premed- 
 itated ; for if any persons meet together 
 upon any lawful or innocent occasion, and 
 happen on a sudden to engage in fighting, 
 they are not guilty of a riot, but an affray 
 only ; and in that case none are guilty ex- 
 cept those actually engaged in it; 4 Bla. Com. 
 146; 1 Russell, Cr. 271; 2 Bish. Cr. L. 1150. 
 
 Fighting in a private place is only an as- 
 sault; 1 C. M. & R. 757; 1 Cox, Cr. Cas. 
 177; it must be in a public place; Gamble 
 v. State, 113 Ga. 701, 39 S. E. 301 ; and the 
 indictment need not describe it; State v. 
 Baker, 83 N. C. 049 ; State v. Heflin, 8 Humph. 
 (Tenn.) 84; State v. Sumner, 5 Strobh. (S. 
 C.) 53; and that fact must be avowed; 
 State v. Woody, 47 N. C. 335. But it will be 
 an affray if commenced in a private place and 
 continued in a public one or if the disturb- 
 ance is so continuous as not to be distin- 
 guishable ; State v. Billings, 72 Mo. GG2 ; or 
 if continued in public after pursuit; Wilson 
 v. State, 3 Heisk. (Tenn.) 278. 
 
 Going about armed with unusual or deadly 
 weapons is an affray, though there is no 
 actual violence or fighting; Hawk. P. C. b. 
 1, c. 28, § 1; State v. Huntly, 25 N. C. 418, 
 40 Am. Dec. 416; and the statute of North- 
 ampton, 2 Edw. III. c. 3, 4 Bla. Com. 149, 
 forbidding it was declaratory of the com- 
 mon law ; State v. Huntly, 25 N. C. 418, 40 
 Am. Dec. 416. For constituting this offense 
 a gun is an unusual weapon ; id. See Riot. 
 
 The fighting of two persons in the pres- 
 ence of seven others was held an affray, the 
 presence of the seven constituting the place 
 a public one; State v. Fritz, 133 N. C. 725, 
 45 S. E. 957. 
 
 AFFRECTAMENTUM. Affreightment. 
 The word fret means tons, according to Cowell. 
 Affreightamentum was sometimes used. Du 
 Cange. 
 
 AFFREIGHTMENT. The contract by 
 which a vessel, or the use of it, is let out 
 to hire. See Freight; General Ship. 
 
 AFORESAID. Before mentioned; already 
 spoken of or described. 
 
 Whenever in any instrument a person has 
 once been described, all subsequent referenc- 
 es tberein may be made by giving his name 
 merely and adding the term "aforesaid" for 
 the purpose of identification. The same rule 
 holds good also as to the mention of places 
 or specific things described, and generally as 
 to any description once given which it is de- 
 sirable to refer to. So also as to a place in 
 an indictment: 1 Gabbett, Cr. Law 212; 5 
 Term 616. See Identity. 
 Pouv.— 11 
 
 AFORETHOUGHT. Premeditated; pre- 
 pense. 
 
 The length of time during which the ac 
 cused has entertained the thought of com 
 mitting the offence is not very material, pro- 
 vided he has In fact entertained such 
 thought; he is thereby rendered criminal in 
 a greater degree than if he had committed 
 the offence without premeditation. See 
 Malice Aforethought; Premkditation; 2 
 Chit. Cr. Law, 785; 4 Bla. Com. 199; Fost 
 Cr. Cas. 132, 291; Respublica v. Mulatto Bob, 
 1 Pall. (Pa.) 146, 1 L. Ed. 770; Edwards v. 
 State, 25 Ark. 446; U. S. v. Cornell, 2 Mas. 
 91, Fed. Cas. No. 14,868. 
 
 AFTER. Behind, following, subsequent 
 to an event or date. 
 
 There is no invariable sense, however, to 
 be attached to the word, but like "from," 
 "succeeding," "subsequent," and similar 
 words, where it is not expressly declared to 
 be exclusive or inclusive, it is susceptible of 
 different significations and is used in differ- 
 ent senses, as will in the particular case ef- 
 fectuate the intention of the parties. Its 
 true meaning must be collected from its con- 
 text and the subject-matter; Sands v. Lyon, 
 IS Conn. 27. 
 
 AFTER ACQUIRED PROPERTY. See Fu- 
 ture Acquired. 
 
 AFTER BORN CHILD. See En Ventre 
 
 Sa Mere; Posthumous Child. 
 
 AFTERMATH. The second crop of grass. 
 A right to have the last crop of grass or 
 pasturage. 1 Chit. Prac. 181. 
 
 AFTERNOON. The word has two senses. 
 It may mean the whole time from noon to 
 midnight, or it may mean the earlier part 
 of that time, as distinguished from the eve- 
 ning; 2 El. & Bl. 447, where an act forbid- 
 ding innkeepers to have their houses open 
 on Sunday during the usual hours of after- 
 noon Divine Service was taken in the latter 
 sense. See Day; Time. 
 
 AGAINST. Adverse or in opposition to. 
 The meaning of the word varies according 
 to the context ; State v. Prather, 54 Ind. 03. 
 
 To marry "against one's consent" means 
 without the consent; 2 Sim. & Stu. 179; 2 
 Vern. 572. 
 
 A verdict in disobedience of the Instruc- 
 tions of the court upon a point of law is a 
 verdict "against the law" ; Declez v. Save, 
 71 Cal. 552, 12 Pac. 722 ; Bunten v. Ins. Co., 
 4 Bosw. (N. Y.) 254. 
 
 A statute providing that in an action by 
 an administrator "neither party shall be al- 
 lowed to testify against the other," or as to 
 transactions with the deceased, does not pre 
 elude either party from being called to tes- 
 tify for the other; Dudley v. Steele, 71 Ala. 
 423. 
 
 AGAINST THE FORM OF THE STAT 
 UTE. Technical words which must be used
 
 AGAINST THE FORM OF STATUTE 102 
 
 AGE 
 
 in framing an indictment for a breach of the 
 statute prohibiting the act complained of. 
 The Latin phrase is contra furmam statuti, 
 q. v. 
 
 AGAINST THE PEACE. See Peace. 
 
 AGAINST THE WILL. Technical words 
 
 which must be used in framing an indict- 
 ment for robbery from the person. 1 Chit. 
 Cr. Law 244. 
 
 In the statute of 13 Edw. I. (Westm. 2d) 
 c. 34, the offence of rape is described to|be 
 ravishing a woman "where she did not con- 
 sent," and not ravishing against her will. 
 Per Tindal, C. J., and Parle, B., in the ad- 
 denda to 1 Den. Cr. Cas. 1. And in Eng- 
 land this statute definition was adopted by 
 all the judges ; Bell, Cr. Cas. 03, 71. 
 
 AGARD. Award. Burrill, Diet. 
 
 AGE. The length of time a person has 
 lived. Full age or majority is the age at 
 which the law allows persons to do acts or 
 discharge functions which for want of years 
 they were prohibited from doing or under- 
 taking before. 
 
 As to tbe age of consent in prosecution 
 for rape, see Rape, as to the age of respon- 
 sibility see Infant, and see also Parent and 
 Child. 
 
 In the United States, at twenty-five, a man 
 may be elected a representative in congress; 
 at thirty, a senator; and at thirty-five, he 
 may be chosen president. He is liable to 
 serve in the militia from eighteen to forty- 
 five inclusive, unless exempted for some par- 
 ticular reason. In England no one can be 
 chosen member of parliament till he has at- 
 tained twenty-one years; nor be ordained a 
 priest under the age of twenty-four; nor 
 made a bishop till he has completed his 
 thirtieth year. The age of serving in the 
 militia is from sixteen to forty-five years. 
 The law, according to Blackstone, recognizes 
 no minority in the heir to the throne. See 
 1 Bla. Com. 224, note, and 2 id. 208, note, 
 where this appears to result from the char- 
 ter under which the king's oldest son be- 
 comes Duke of Cornwall by inheritance. 
 
 In French Law. A person must have at- 
 tained the age of forty to be a member of 
 the legislative body; twenty-five, to be a 
 judge of a tribunal de premiere instance; 
 twenty-seven, to be its 1 president, or to be 
 judge or clerk of a cour royale; thirty, to be 
 its president or procurcur-gcncral; twenty- 
 five, to be a justice of the peace ; thirty, to be 
 judge of a tribunal of commerce, and thirty- 
 five, to be its president; twenty-five, to be a 
 notary public; twenty-one, to be a testa- 
 mentary witness ; thirty, to be a juror. At 
 sixteen, a minor may devise one-half of his 
 property as if he were a major. A male can- 
 not contract marriage till after the eighteenth 
 year, nor a female before full fifteen years. 
 At twenty-one, both males and females are 
 
 capable to perform all the acts of civil life; 
 Touillier, Droit Civ. liv. 1, Intr. n. 1SS. 
 
 In Roman Law. Infancy (infantia) ex- 
 tended to the age of seven; the period of 
 childhood (pueritia) which extended from 
 seven to fourteen, was divided into two pe- 
 riods; the fust, extending from seven to ten 
 and a half, was called the period nearest 
 childhood (wtas infantice proxima) ; the oth- 
 er, from ten and a half to fourteen, the 
 period nearest puberty (wtas pubertati prox- 
 ima) ; puberty (pubertas) extended from 
 fourteen to eighteen; full puberty extended 
 from eighteen to twenty-five; at twenty-five, 
 the person was major. See Taylor, Civ. Law 
 254; Lecon El. du Droit Civ. 22. 
 
 A witness may prove his own age ; Cheever 
 v. Congdon, 34 Mich. 296; State v. McClain, 
 49 Kan. 730, 31 Pac. 790 ; Morrel v. Morgan, 
 65 Cal. 575, 4 Pac. 5S0; State v. Best, 10S 
 N. C. 747, 12 S. E. 907; Hill v. Eldridge, 126 
 Mass. 234; without giving his sources of in- 
 formation except on cross-examination; Cen- 
 tral R. R. v. Coggin, 73 Ga. 6S9 ; even if the 
 parent from whom it is admitted that the 
 knowledge was derived is present; Loose v. 
 State, 120 Wis. 115, 97 N. W. 526 ; or is liv- 
 ing in the county where suit is brought; 
 Pearce v. Kyzer, 84 Tenn. (16 Lea) 521, 57 
 Am. Rep. 240; but when the statement was 
 made to a teacher for entry on school regis- 
 trv. that record is not admissible; Simpson 
 v. State, 46 Tex. Cr. R. 551, 81 S. W. 320. 
 The date of one's birth may be proved by 
 himself or members of his family ; Houlton 
 v. Manteuffel, 51 Minn. 185, 53 N. W. 541; 
 Chicago & A. R. Co. v. Lewandowski, 190 
 111. 301, 60 N. E. 497; but not when the 
 knowledge is acquired from another person, 
 the witness being an orphan ; People v. Col- 
 bath, 141 Mich. 189, 104 N. W. 633. One's 
 own statement of his age has been said to 
 be the best evidence; Morrison v. Ernsley, 
 53 Mich. 564, 19 N. W. 187. 
 
 In a trial for rape of a female under six- 
 teen years, her testimony as to her age was 
 held competent; Com. v. Phillips, 162 Mass. 
 504, 39 N. E. 109; but a conviction for se- 
 duction under the age of eighteen could not 
 be maintained when the oral evidence of the 
 girl was contradicted by the church record 
 of her birth on which she had stated her 
 evidence was based ; State v. Cougot, 121 
 Mo. 458, 26 S. W. 5G6. 
 
 A statement in a will that testator's daugh- 
 ter was born on a certain day is admissible; 
 3 Yo. & Coll. Ex. 82 ; and in 2 R. & Myl. 169, 
 a person's age was proved by the declara- 
 tions of a deceased relative. 
 
 The federal census returns have been held 
 admissible on the question of age; Priddy 
 v. Boice, 201 Mo. 309, 99 S. W. 1055, 9 L. R. 
 A. (N. S.) 718, 119 Am. St. Rep. 762, 9 Ann. 
 Cas. 874; contra, Campbell v. Everhart, 139 
 N. C. 503, 52 S. E. 201 ; see Wigin. Ev. 1671 ; 
 and the testimony of an enumerator after 
 refreshing his memory by examination of
 
 AGE 
 
 103 
 
 AGGRAVATION- 
 
 his hook and then stating particulars from 
 recollection has been admitted; Battles v. 
 Tallman, 9G Ala. 403, 11 South. 247: but a 
 school census is inadmissible to prove age 
 for any oilier than school purposes; Edwards 
 v. Logan, 114 Ky. 312, 70 S. W. 852, 75 S. W. 
 257. 
 
 There is no presumption of law that at 
 any age a woman is past the age of child 
 bca rin.:. but courts have recognized a pre- 
 sumption of fact as to a married woman of 
 !!) : 'i years who had never borne a child; 
 L. Et. 14 Eq. 245; widow of 55%; L. R. 11 
 Eq. 408; a spinster of 53; 35 L. J. Ch. 303; 
 and the presumption was refused in the case 
 of a woman of 54V., married three years, 
 who had never had a child: 9 Ch. D. 3SS. 
 But in List v. Rodney, 83 Ta. 483, it was 
 held that (quoting 2 Ida. Com. 125) "a pos- 
 sibility of issue is always supposed to exist 
 in law . . . even though the donees be 
 each of them one hundred years old." and 
 that the law would not consider the physical 
 impossibility of a woman's bearing children 
 after she was seventy-five years old. 
 
 AGE-PRAYER. A statement made in a 
 real action to which an infant is a party, 
 of the fact of infancy and a request that 
 the proceedings may be stayed until the in- 
 fant becomes of aire. 
 
 It is now abolished; stat. 11 Geo. IV.; 
 1 Will. IV. c. 37, § 10; 1 Lilly, Reg. 54; 3 
 Bla. Com. 300. 
 
 AGENCY. See Principal and Agent. 
 
 AG ENS (Lat. agere, to do; to conduct). 
 A conductor or manager of affairs. 
 It is distinguished from factor, a workman. 
 
 A plaintiff. Fleta, lib. 4, c. 15, § 8. 
 
 AGENT. See Principal and Agent. 
 
 AGENT AND PATIENT. A phrase indi- 
 cating the state of a person who is required 
 to do a thing, and is at the same time the 
 person to whom it is done ; as, when a man 
 is indebted to another, and he appoints him 
 his executor, the latter is required to pay 
 the debt in his capacity of executor, and en- 
 titled to receive it in his own right ; he is 
 then agent and patient. Termes de la Ley. 
 
 AGER (Lat). In Civil Law. A field; 
 
 land generally. 
 
 A portion of land enclosed by definite 
 boundaries. 
 
 Used like the word acre in the old English law, 
 
 denoting a measure of undetermined and variable 
 
 value. Spelman, Gloss.; Du Cange; 3 Kent 411. 
 
 AGGRAVATION. That which increases 
 the enormity of a crime or the injury of a 
 wrong. 
 
 One of the rules respecting variances is, 
 that cumulative allegations, or such as mere- 
 ly operate in aggravation, are immaterial, 
 provided that sufficient is proved to estab- 
 lish seme right, offence, or jus! ideation in- 
 cluded in the claim, charge, or defence speci- 
 
 fied on the record. This rule runs t 
 the whole criminal law: that it is i^ 
 bly enough to prove so much of I 
 ment as shows that the defendant has 
 mitied a substantive crime therein - 
 2 Campb.*583; I I:. & C. 329; G m. v. 
 more, 4 Gray (Mass.) 18; 1 Bish. Cr. I 
 Thus, on an Indictment for murder the 
 oner may be convicted of manslaughter, for 
 the averment of malice aforethought is 
 ly matter of aggravation; Co. Lltt. 282a. 
 
 The introduction of matter into the d 
 ration which tends to increase the amount 
 of damages, but does not affect the right of 
 action itself. Steph. PI. 257; Gould, PL 42; 
 12 .Mod. 597. 
 
 An example of this Is found in the case whore a 
 plaintiff declares in' trespass for entering his bouse, 
 and breaking his close, and tossing his goods about; 
 the entry of the house is the principal ground and 
 foundation of the action, and the rest is only stated 
 by way of aggravation; 3 Wlls. £94; Hathaway v. 
 Rice, 19 Vt. 107 ; and this matter need not be prov- 
 ed by the plaintiff or answered by the defendant. 
 
 See Alia Enormia. 
 
 AGGREGATE. Consisting of particular 
 persons or items, formed into one body. A 
 combined whole. 
 
 See Corporation. 
 
 AGGREGATIO MENTIUM (Lat). A 
 
 meeting of minds. See Agreement. 
 
 AGGRIEVED. Having a grievance, or 
 suffered loss or injury. 
 
 The "parties aggrieved" are those against 
 whom an appealable order or judgment has 
 been entered; Ely v. Frisbie, 17 CaL 260. 
 One cannot be said to be aggrieved unless 
 error has been committed against him; Kine- 
 aly v. Macklin, G7 Mo. 05; Wiggin v. Swett, 
 6 Mete. (Mass.) 1!>7, 39 Am. Dec. 716; 
 Swackhamer v. Kline's Adm'r, 25 N. J. Eq. 
 503 ; 4 Q. B. Div. 90. 
 
 AGIO. An Italian word for accommoda- 
 tion. A term used in commercial transac- 
 tions to denote the difference of price be- 
 tween the value of bank-notes or other nom- 
 inal money and the coin of the country. 
 
 AGISTMENT. The taking of another per- 
 son's cattle into one's own ground to be led. 
 for a consideration to lie paid by the owner. 
 Williams v. Miller, 68 Cal. 290. I'ac. 166. 
 
 Tithe of Agistment was a small tithe paid 
 to the rector or vicar on cattle or other 
 produce of grass lands. It was paid by the 
 occupier of the land and not by the person 
 who put in his cattle to graze. Rawle, Ex- 
 moor 31. 
 
 In Canon Law. A composition or mean 
 rate at which some right or due might be 
 reckoned. 
 
 AGISTOR. An officer who had the charge 
 
 of cattle pastured for a certain stipvJ 
 sum in the kings forest and who collected 
 the money paid for them. One who takes in 
 horses or other animals to pasture at certair
 
 AGISTOR 
 
 164 
 
 AGNATI 
 
 rates. Story, Bailm. § 443; Skinner v. 
 Cuughey, 64 Minn. 375, 67 N. W. 203. 
 
 He is not, like an innkeeper, bound to take 
 all horses offered to him, nor is he liable for 
 any injury done to such animals in his care, 
 unless he has been guilty of negligence, or 
 from his ignorance, negligence may be infer- 
 red; Holt 547. See Schroeder v. Faires, 49 
 Mo. App. 470 ; Brush v. Land Co., 2 Tex. Civ. 
 App. 1S8, 21 S. W. 3S9. 
 
 In the absence of an express contract as 
 to the degree of care to be taken, he is 
 bound to provide reasonable feed and use 
 ordinary care to protect cattle; Calland v. 
 Nichols, 30 Neb. 532, 46 N. W. 631. 
 
 Where a number of animals are taken to 
 pasture for an agreed compensation, one of 
 them cannot be taken away without pay- 
 ment for all ; Yearsley v. Gray, 140 Pa. 238, 
 21 Atl. 517; Kroll v. Ernst, 34 Neb. 482, 51 
 N. W. 1032. The lien of an agistor is prior 
 to the claim of an assignee of overdue notes 
 secured by mortgage on the horses; Blain v. 
 Manning. 36 111. App. 214. That he has no 
 lien, see Prof. J. B. Ames in 3 Sel. Essays 
 in Anglo-Amer. Leg. Hist. 290, citing 5 M. 
 & W. 342, which followed Cro. Car. 271. 
 
 See Bailment; Animal; Lien. 
 
 AGNATES. In Scotch Law. Relations on 
 the father's side. See Agnati. 
 
 AGNATI. In Civil Law. All individuals 
 subject for the time being to the same pa- 
 tria poiestas, or who would be so subject 
 were the common ancestor alive. Brothers 
 and sisters, with their uncles, aunts, neph- 
 ews, nieces, and other collaterals (not hav- 
 ing been received by adoption or marriage 
 into another family), if related through 
 males, were agnates. The civil issue of the 
 state was the Agnatic Family. Cognates 
 were all persons who could trace their blood 
 to a single ancestor or ancestress, and ag- 
 nates were those cognates who traced their 
 connection exclusively through males. Maine, 
 Anc. Law. 
 
 "The agnates were that assemblage of per- 
 sons who would have been under the patri- 
 archal authority of some common ancestor 
 if he had lived long enough to exercise it." 
 Maine, Early Hist, of Inst. 106. A son eman- 
 cipated by his father lost all rights of agna- 
 tion. 
 
 They were called agnati— adgnati, from the words 
 ad eum nati. Ulpianus says: "Adgnati autem sunt 
 cognati virilis sexus ab eodem orti: nam post suos 
 et consanguineos statim mihi proximus est con- 
 sanguinei mei films, et ego ei; patris quoque ] 'rater 
 qui patruus appellatur ; deincepsque ceteri, si qui 
 sunt, hinc orti in infinitum ;" Dig. 38, 16. De suis, 
 2, § 1. Thus, although, the grandfather and father 
 being dead, the children become sui juris, and the 
 males become the founders of new families, still 
 they all continue to be agnates ; and the agnatio 
 spreads and is perpetuated not only in the direct 
 but also in the collateral line. Marriage, adoption, 
 and adrogation also create the relationship of the 
 agnatio. In the Sentences of Paulus, the order of 
 inheritance is stated as follows: Intestatorum he- 
 reditas, lege Duodecim Tabularum primum suis 
 
 heredibus, deinde adgnatis et aliquando quoque 
 gentibus deferebatur. See Cognati. 
 
 AGNATIO. In Civil Law. The relation- 
 ship of Agnati. 
 
 AGNOMEN. A name or title which a man 
 gets by some action or peculiarity ; the last 
 of the four names sometimes given a Roman. 
 Thus, Scipio Africanus, from his African vic- 
 tories. Ainsworth, Lex. ; Calvinus, Lex. See 
 Nomen. 
 
 AGNOSTIC. See Oath. 
 
 AGRARIAN LAWS. In Roman Law*. 
 
 Those laws by which the commonwealth dis- 
 posed of its public land, or regulated the 
 possession thereof by individuals were term- 
 ed Agrarian Laws. 
 
 The greater part of the public lands acquired by 
 conquest were laid open to the possession of any 
 citizen, but the state reserved the title and the 
 right to resume possession. The object of many of 
 the agrarian laws was to limit the area of public 
 land of which any one person might take posses- 
 sion. The law of Cassius, b. c. 486, is the most not- 
 ed of these laws. 
 
 It was long assumed that these laws were framed 
 to reach private property as well as to restrict pos- 
 session of the public domain, and hence the term 
 agrarian Is, In legal and political literature, to a 
 great degree fixed with the meaning of a confisca- 
 tory law, intended to reduce large estates and in- 
 crease the number of landholders. Harrington, in 
 his "Oceana," and the philosophers of the French 
 Revolution, have advocated agrarian laws in this 
 sense. The researches of Heyne, Op. 4, 351 ; Nieh- 
 buhr, Hist. vol. ii. trans. ; and Savigny, Das Recht 
 des Besitzes, have redeemed the Roman word from 
 the burden of this meaning. 
 
 AGREAMENTUM. Agreement. 
 Spelman says that it is equivalent in meaning to 
 aggregatio mentium, though not derived therefrom. 
 
 AGREE. To concur with or assent. 
 Thornton v. Kelly, 11 R. I. 498; to promise 
 or engage; Packard v. Richardson, 17 Mass. 
 122, 9 Am. Dec. 123; to contract; McKisick 
 v. McKisick, 6 Meigs (Tenn.) 427. To say 
 that a jury agrees upon a verdict is equiva- 
 lent to find; Benedict v. State, 14 Wis. 423. 
 
 It sometimes means a grant or covenant, 
 as when a grantor agrees that no building 
 shall be erected on an adjoining lot; Hogan 
 v. Barry, 143 Mass. 538, 10 N. E. 253. 
 
 AGREE (Fr.). A person authorized to 
 represent a litigant before the Tribunals of 
 Commerce in France. If such person be a 
 lawyer, he is called an avocat-agrc'e'. Coxe, 
 Manual of French Law. 
 
 AGREED STATEMENT OF FACTS. See 
 
 Case Stated. 
 
 AGREEMENT. A coming together of par- 
 tics in opinion or determination; the union 
 of two or more minds in a thing done or to 
 be done ; a mutual assent to do a thing. 
 Comyn, Dig. Agreement, A 1 ; Plowd. 5 o, 6 o. 
 
 Aggregatio mentium. — When two or more 
 minds are united in a thing done or to be 
 done. 
 
 It ought to be so certain and complete that either 
 party may have an action on it, and there must be 
 a quid pro quo; Dane, Abr. c. 11.
 
 AGREEMENT 
 
 165 
 
 AGREEMENT 
 
 The consent of two or more persons con- 
 curring, the one in parting with, the other 
 in receiving, some property, right, or bene- 
 fit; Bacon, Abr. An act in the law where- 
 by two or more persons declare their assent 
 as to any act or thing to be done or forborne 
 by some or one of those persons for the use 
 of the others or other of them. Poll. Contr. 
 3, adopted in [18S7] 36 Ch. D. 698. It must be 
 concerned with duties or rights which can 
 be dealt with in a court of justice; Poll. 
 Contr. 3. 
 
 "The expression by two or more persons 
 of a common intention to affect the legal 
 relations of those persons." Anson, Contr. 3. 
 
 An agreement "consists of two persons be- 
 ing of the same mind, intention, or mean- 
 ing concerning the matter agreed upon." 
 Leake, Contr. 12. 
 
 "Agreement" is seldom applied to specialties ; 
 "contract" is generally confined to simple contracts; 
 "promise" refers to the engagement of a party 
 without reference to the reasons or considerations 
 for it, or the duties of other parties; Pars. Contr. 6. 
 An agreement ceases to be such by being put in 
 writing under seal, but not when put in writing 
 for a memorandum ; Dane, Abr. c. li- 
 lt is a wider term than "contract ;" Anson, 
 Contr. 4; an agreement might not be a con- 
 tract, because not fulfilling some requirement 
 of the law of the place in which it is made. 
 
 The meaning of the contracting parties 
 Is their agreement; Whitney v. Wyman, 101 
 U. S. 396, 25 L. Ed. 1050. 
 
 An agreement of sale may imply not mere- 
 ly an obligation to sell, but an obligation on 
 the part of the other party to purchase, 
 while an agreement to sell is simply an ob- 
 ligation on the part of the vendor or promis- 
 or to complete his promise of sale ; Treat v. 
 White, 181 U. S. 204, 21 Sup. Ct 611, 45 L. 
 Ed. 853. 
 
 In its correct sense, as used in the statute 
 of frauds, it signifies a mutual contract up- 
 on a consideration, between two or more 
 parties ; 5 East 10 ; although frequently Aised 
 in a loose, incorrect, sense as synonymous 
 with promise or undertaking; id.; but, in 
 its popular signification it means no more 
 than concord, the union of two or more 
 minds, concurrence of views and intention. 
 Everything done or omitted by the compact 
 of two or more minds is universally and 
 familiarly called an agreement. Whether a 
 consideration exists is a distinct idea which 
 does not enter into the popular notion. In 
 most Instances any consideration except the 
 voluntary impluse of minds cannot be ascrib- 
 ed to the numberless agreements that are 
 made daily; Marcy v. Marcy, 9 Allen (Mass.) 
 11 ; Sage v. Wilcox, 6 Conn. 85. Taken alone, 
 it is sufficiently comprehensive to embrace 
 all forms of stipulations, written or verbal ; 
 Wharton v. Wise, 153 U. S. 155, 14 Sup. Ct. 
 783, 38 L. Ed. 669. 
 
 The writing or instrument which is evi- 
 dence of an agreement. 
 
 The agreement may be valid, and yet the written 
 evidence thereof insufficient; as, if a promissory 
 
 note be given for twenty dollars, the amount of a 
 previous debt, where the note may gener: 
 neglected and the debt collected by means ol r 
 
 evidence ; or, again, if a note good in form be given 
 for an illegal consideration. In which case the in- 
 strument Is good and the agreement void. 
 
 See Accord and Satisfaction ; Accept- 
 ance ; Consideration ; Contract ; Novation ; 
 Performance ; Rescission ; Interpretation. 
 
 The parties must agree or assent There 
 must be a definite offer by one party accepted 
 by the other; Ives v. Hazard, 4 R. I. 14, G7 
 Am. Dec. 500 ; Emerson v. Graff, 29 Pa. 358. 
 There must be a communication of assent by 
 the party accepting ; a mere mental assent 
 to the terms in his own mind is not enough ; 
 L. R. 2 App. Ca. 691. See Allen v. Chouteau, 
 102 Mo. 309, 14 S. W. 869. But the assent 
 need not be formally made ; it can be infer- 
 red from the party's acts; L. R. 6 Q. B. <;<J7 ; 
 L. R. 10 C. P. 307 ; Smith v. Ingram, 90 Ala. 
 529, 8 South. 144. They must assent to the 
 same thing in the same sense; Eliason v. 
 Henshaw, 4 Wheat. (U. S.) 225, 4 L. Ed. 556 ; 
 Greene v. Bateman, 2 Woodb. & M. 359, Fed. 
 Cas. No. 5,762 ; 9 M. & W. 535; L. R. 6 Q. 
 B. 597; New York Life Ins. Co. v. Levy's 
 Adm'r, 122 Ky. 457, 92 S. W. 325, 5 L. R. A. 
 (N. S.) 739. The assent must be mutual and 
 obligatory; there must be a request on one 
 side, and an assent on the other; 5 Bingh. 
 N. C. 75 ; Abbott v. Hapgood, 150 Mass. 248, 
 22 N. E. 907, 5LR.A. 5S6, 15 Am. St. Rep. 
 193. Where there is a misunderstanding as 
 to the date of performance there is no con- 
 tract, for want of mutual assent; Pittsburg 
 
 6 S. Coal Co. v. Slack & Co., 42 La. Ann. 107, 
 
 7 South. 230 ; or where there is a misunder- 
 standing as to the manner of payment; I!ol>- 
 inson & Farrell v. Estes, 53 Mo. App. 
 The assent must comprehend the whole of 
 the proposition ; it must be exactly equal to 
 its extent and provision, and it must not 
 qualify them by any new matter; 1 Pars. 
 Contr. 400 ; and even a slight qualification 
 destroys the assent; 5 M. & W. 535; Horn- 
 beck's Ex'r v. American Bible Society, 2 
 Sandf. Ch. (N. Y.) 133. The question of as- 
 sent when gathered from conversations is 
 for the jury ; Thruston v. Thornton, 1 Cush. 
 (Mass.) 89; De Bidder v. McKnight, 13 
 Johns. (N. Y.) 294. 
 
 A sufficient consideration for the agree- 
 ment must exist; 2 Bla. Com. 444; 2 Q. B. 
 S51; 5 Ad. & E. 54S; as against third par- 
 ties this consideration must be good or valu- 
 able; 10 B. & C. COO: as between the par- 
 ties it may be equitable only; 1 Pars. Contr. 
 431. 
 
 But it need not be adequate, if only it have 
 some real value; 2 Sch. & L. 395, n. a; 11 Ad. 
 & E. 9S3 ; Hubbard v. Coolidge. 1 Mete. 1 1 
 S4; Judy v. Louderman, -IS Ohio St. 562, -!) X. 
 E. 1S1, refraining from use of tobacco and 
 liquor for a period is sufficient consideration 
 for a promise to pay the party a sum of mon- 
 ey; Hamer v. Sidway, 124 N. Y. 538, 117 v. 
 E. 250, 12 L. R. A. 463, 21 Am. St. Rep. 093.
 
 AGREEMENT 
 
 1G0 
 
 AGREEMENT 
 
 Tf the consideration be illegal in whole or in 
 part, the agreement will be void: Donallen 
 f. Lennox, 6 Dana (Ky.) Ml ; Town of H 
 burgh v. Sumner, 9 Vt. 23, 31 Am. Doc. 599; 
 Filson's Trustees v. Himes, 5 Pa. 452, 47 Am. 
 Dec. 422; Deering v. Chapman, 22 Me. 488, 
 
 39 Am. Dee. 592; Ashbrook v. Dale. 27 Mb. 
 App. 649; Smith v. Steely, 80 la. 738, 45 N. 
 \v. 912. A contract to regulate the price of 
 commodities at a certain specified amount is 
 a contract in restraint of trade, without con- 
 sideration and cannot be enforced ; 63 Law 
 
 5; Vulcan Powder ('o. v. Powder Co., 96 
 Cal. 510, 31 Pac. 581, 31 Am. St Rep. 242; 
 so also if the consideration be impossible; 5 
 Viner, Abr. L10, Condition; Co. Litt 206 a; 
 Shepp. Touchst. 104; L. R. 5 C. P. 5S8; 2 
 Lev. L61. See Consideration. 
 
 The agreement may be to do anything 
 which is lawful, as to sell or buy real estate 
 or personal property. But the evidence of 
 the sale of real property must generally he 
 by deed, sealed; and in many eases agree- 
 ments" in regard to personal property must 
 be in writing. See Statute of Frauds. 
 
 The construction to be given to agree- 
 s is to he favorable to upholding them, 
 and according to the intention of the parties 
 at the time of making it, as nearly as the 
 meaning of the words used and the rules of 
 law will permit; 2 Kent 555; 1 H. Bla. 569, 
 014; 30 Eng. L. & E. 479; Potter v. ins. 
 Co., 5 Hill (N. Y.) 147; Ricker v. Fairbanks, 
 
 40 Me. 43: 10 A. & E. 326; Thrall v. New- 
 oil, 19 Vt. 202, 47 Am. Dec. 682. This in- 
 tent cannot prevail against the plain mean- 
 ing of words; 5 M. & W. 535. Neither will 
 it be allowed to contravene established rules 
 of law. 
 
 And that the agreement may be support- 
 ed, it will be construed so as to operate in a 
 way somewhat different from that intended, 
 if this will prevent the agreement from fail- 
 ing altogether; Brewer v. Hardy, 22 Pick. 
 (Mass.) 370, 33 Am. Dec. 747; Rogers v. Fire 
 Co.. 9 Wend. (N. Y.) 611 ; Bryan v. Bradley, 
 16 Conn. 474 
 
 Agreements are construed most strongly 
 against the party proposing (i. e., contra pro- 
 ferentem); M. & W. 002; 2 Pars. Contr. 
 20: 3 B. & S. 929; Dehlois v. Earle, 7 R. I. 
 26. See Contracts. 
 
 The effect of an agreement is to bind the 
 parties to the performance of what they 
 have thereby undertaken. In case of fail- 
 ure, the common law provides a remedy by 
 damages, and equity will in some cases com- 
 pel a specific performance. 
 
 The obligation may be avoided or destroy- 
 ed by performance (q. v.), which must be by 
 him who was hound to do it; and whatso- 
 Ls necessary to be done for the full dis- 
 charge of this duty, although only incidental 
 to it, must be done by him; 11 Q. B. 368; 
 4 B. & S. 556; Fauble v. Davis, 48 la. 462; 
 Jennings v. Lyons, 39 Wis. 553, 20 Am. Rep. 
 57; by tender of exact performance accord- 
 
 ing to the terms of the contract, which is 
 sufficient when the other party refuses to 
 accept performance under the contract; 6 
 M. & G. 610; Benj. Sales 563; Ans. Contr. 
 274; an agreement to pay a sum of money 
 upon receipt of certain funds is not broken 
 on refusal to pay on receipt of part of the 
 funds; Fox v. Walker, 62 N. H. 419; by 
 acts of the party to be benefited, which pre- 
 vent the performance, or where some act is 
 to be done by one party before the act of the 
 other, the second party is excused from per- 
 formance, if the first fails; 15 M. & W. 109; 
 8 Q. B. 35S; 6 B. & C. 325; 10 East 359; by 
 rescission (q. v.), which may be made by the 
 party to be benefited, without any provision 
 therefor in the agreement, and the mere ac- 
 quiescence of the other party will be evi- 
 dence of sufficient mutuality to satisfy the 
 general rule that rescission must be mutual ; 
 Hill v. Green, 4 Pick. (Mass.) 114; Quincy v. 
 Tilton, 5 Greenl. (Me.) 277; 1 W. & S. 442; 
 rescission, before breach, must be by agree- 
 ment; Leake, Contr. 787; 2 H. & N. 79; 
 6 Exch. 39; by acts of lato, as confusion, 
 merger ; Baxter v. Downer, 29 Vt. 412 ; death, 
 as when a master who has bound himself to 
 teach an apprentice dies; inability to per- 
 form a personal service, such as singing at 
 a concert; L. R. 6 Exch. 269; or extinction 
 of the subject-matter of the agreement. See 
 also Assent; Contract; Discharge of Con- 
 tracts; Parties; Payment; Rescission. 
 
 AGREEMENT FOR INSURANCE. An 
 
 agreement often made in short terms pre- 
 liminary to the filling out and delivery of a 
 policy with specific stipulations. 
 
 Such an agreement, specifying the rate of 
 premium, the subject, and risk, and amount 
 to be insured, in general terms, and being 
 assented to by the parties, is binding; Tyler 
 v. Insurance Co., 4 Rob. (N. Y.) 151 ; Oliver 
 v. Insurance Co., 2 Curt. 277, Fed. Cas. No. 
 10,498; Trustees of First Baptist Church v. 
 Insurance Co., 19 N. Y. 305. It is usually in 
 writing, but may be by parol or by parol ac- 
 ceptance of a written proposal ; Union Mut. 
 Ins. Co. v. Insurance Co., 2 Curt. 524. Fed. 
 Cas. No. 14,372 ; Commercial Mut. Marine 
 Ins. Co. v. Insurance Co., 19 How. (U. S.) 
 318, 15 L. Ed. 636; Mobile Marine Dock & 
 Mutual Ins. Co. v. McMillan, 31 Ala. 711; 
 Ellis v. Insurance Co., 50 N. Y. 402, 10 Am. 
 Rep. 495; Ela v. French, 11 N. H. 356. It 
 must be in such form or expression that the 
 parties, subject, and risk can be thereby dis- 
 tinctly known, either by being specified or by 
 references so that it can be definitely re- 
 duced to writing; Trustees of First Baptist 
 Church v. Insurance Co., 19 N. Y. 305. 
 
 Such an agreement must have an express 
 or implied reference to some form of policy. 
 The ordinary form of the underwriters in 
 like cases is implied, where no other is speci- 
 fied or implied ; Eureka Ins. Co. v. Robin- 
 son, 56 Pa. 256, 94 Am. Dec. 05; 2 C. & P.
 
 AGREEMENT FOR INSURANCE 1G7 
 
 AGRICULTURE 
 
 91; 3 B. & Ad. 90G; Hubbard v. Insurance 
 Co., 33 la. 325, 11 Am. Rep. 125; Barre v. 
 Insurance Co., 76 la. 600, 41 N. W. 373; 
 Oliver v. Insurance Co., 2 Curt. 277, Fed. ('as. 
 No. 10,49S. 
 
 Wbere tbe agreement is by a communica- 
 tion between parties at a distance, an oiler 
 by either will be binding upon both on a 
 despatch by the other of his acceptance 
 within a reasonable or the prescribed time, 
 and prior to the offer having been counter- 
 manded; 1 Phil. Ins. §§ 17, 21; Myers v. In- 
 surance Co., 27 Fa. 268, 67 Am. Dec. 462. 
 
 It is a common practice to "bind" insur- 
 ance against fire for a short period by mere 
 oral communication. 
 
 See Policy; Insurance. 
 
 AGRICULTURAL HOLDING. Land culti- 
 vated for profit in some way. Within the 
 meaning of the English Agricultural Hold- 
 ings act of 1SS3, the term will not include 
 natural grass lauds. Such lands are pastoral 
 holdings. 32 S. J. 630. 
 
 AGRICULTURAL PRODUCT. That which 
 is the direct result of husbandry and the 
 cultivation of the soil. The product in its 
 natural unmanufactured condition; Getty 
 v. Milling Co.. 40 Kan. 2S1, 19 Pac. G17. It 
 has been held not to include beef cattle ; 
 Davis & Co. v. City of Macon, 64 Ga. 128, 37 
 Am. Rep. 60. 
 
 AGRICULTURAL SOCIETY. One for the 
 promotion of agricultural interests, such as 
 the improvement of land, breeds of cattle, 
 etc. Downing v. State Board of Agriculture, 
 129 Ind. 443, 2S N. E. 123, 614, 12 L. R. A. 
 664. It is held a private corporation ; Selinas 
 v. State Agricultural Society, 60 Vt 249, 13 
 Atl. 117, 6 Am. St. Rep. 114; Ismon v. Loder, 
 135 Mich. 345, 97 N. W. 769; Brown v. Agri- 
 cultural Society, 47 Me. 275, 74 Am. Dec. 484 ; 
 Lane v. Agricultural Society, 62 Minn. 175, 
 64 N. W. 382, 29 L. R. A. 70S ; but where its 
 organization and the powers of its board of 
 directors are provided for by statute, and it 
 is not a society for pecuniary benefit, it is a 
 public corporation : Hern v. State Agricul- 
 tural Soc, 91 la. 97, 58 N. W. 1092. 
 
 As to their liability for negligence, see 
 Dangerous Premises. 
 
 AGRICULTURE. The cultivation of soil 
 for food products or any other useful or val- 
 uable growths of the field or garden; till- 
 age, husbandry; also, by extension, fann- 
 ing, including any industry practised by a 
 cultivator of the soil in connection with 
 such cultivation, as breeding and rearing of 
 stock, dairying, etc. The science that treats 
 of the cultivation of the soil. Stand. Diet. 
 The term refers to the field or farm, with all 
 Its wants, appointments and products, as dis- 
 tinguished from horticulture, which refers 
 to the garden, with its less important though 
 varied products; Dillard v. Webb. 55 Ala. 
 46S. 
 
 A person is actually engaged in agricul- 
 
 ture when he derives the support of himselt 
 and family in whole or in part from the cul- 
 tivation of land; it must : i i u g more 
 than a garden, though it may be l< 
 field, and the uniting of any other bu 
 with this is ool Inconsistent with the j 
 of agriculture; Springer v. Lewis, 22 Pa. 
 L93. See Bachelder v. Bickford, 62 Mi 
 Simons v. I.ovell, 7 Heisl 515. 
 
 Within the meaning of an exemption law, 
 one who cultivates a one acre lot and is also 
 a butcher and day laborer is not engagi d in 
 agriculture. 
 
 AID AND ABET. See Aiding and A 
 
 TING. 
 
 AID AND COMFORT. Ilelp ; support; 
 assistance; counsel ; encouragement. 
 
 The constitution of the United States, art. 3, s. 3, 
 declares that adhering to the enemies of the United 
 States, giving them aid and comfort, shall be trea- 
 son. These words, as they are to be understood in 
 the constitution, have not received a full judicial 
 construction ; but see Young v. U. S., 97 U. S. 39, 
 24 L. Ed. 992, as to their meaning in the Act of Con- 
 gress, March 12, 1863. See also Lamar v. Browne, 
 92 U. S. 187, 23 L. Ed. 650; U. S. v. Klein, 13 Wall 
 (U. S.) 1:8, 20 L. Ed. 519 ; Hanauer v. Doane, 12 
 Wall. (U. S.) 317, 20 L. Ed. \Z'i; Carlisle v. U. S., 
 10 Wall. (U. S.) 147, 21 L. Ed. H -ki v. 
 
 U. S., 7 Ct of CI. 398; Bond v. U. S., 2 Ct. of CI. 
 533. They import help, support, assistance, counte- 
 nance, encouragement. The voluntary execution of 
 an official bond of a commissioned officer of the 
 Confederacy from motives of personal friendship, is 
 giving aid and comfort; U. S. v. Padelford, 9 Wall. 
 (U. S.) 539, 19 L. Ed. 788; as is the giving of me- 
 chanical skill to build boats for the Confederacy ; 
 Gearing v. U. S., 3 Ct. of CI. 172. The word aid, 
 which occurs in the stat. Westm. I. c. 14, Is ex- 
 plained by Lord Coke (2 Inst. 18J) as comprehend- 
 ing all persons counselling, abetting, plotting, as- 
 senting, consenting, and encouraging to do the act 
 (and he adds, what is not applicable to the crime 
 of treason), who are not present when the act is 
 done. See also 1 Burn, Just. 5, 6 ; 4 Bla, Com. 
 37, 3S. 
 
 To constitute aid and comfort it is not ► 
 that the effort to aid should be successful and ac- 
 tually render assistance; U. S. v. Greathouse, 4 
 Sawy. 472, Fed. Cas. No. 16,254 
 
 AID BONDS. See Bonds. 
 
 AID OF THE KING. A city or boi 
 that holds a fee farm of the king, if any- 
 thing be demanded against them which he- 
 longs thereto, may pray in aid of the king. 
 In these cases the proceedings are stopped 
 until the king's counsel is heard to say what 
 they think fit for avoiding the king's preju- 
 dice; and this aid shall not in any case be 
 granted after issue: because the king ought 
 not to rely on the defence made by another. 
 Termes de la Ley. 
 
 AID PRAYER. A petition to the court 
 calling in help from another person who has 
 an interest in the matter In dispute. For 
 example, a tenant for life, by the curtesy, 
 or for years, being impleaded, may pray aid 
 Of him in reversion; that is, desire the 
 court that he may be called by writ, to allege 
 what he thinks proper for the maintenance 
 of the right of the person calling him, and 
 of his own. Fitzh. .Nat Brev. 50.
 
 AIDER BY VERDICT 
 
 1G8 
 
 AIDING AND ABETTING 
 
 AIDER BY VERDICT. The presumption | 
 which arises after verdict, whether in a civil 
 or criminal case, that those facts, without 
 proof of which the verdict could not have 
 been found, were proved, though they are 
 not distinctly alleged in the record;, pro- 
 vided it contains terms sufficiently general 
 to comprehend them in reasonable intend- 
 ment. 
 
 The rule is that where a matter is so es- 
 sentially necessary to be proved that, had it 
 not been in evidence, the jury could not have 
 given such a verdict as that recorded, there 
 the want of stating that matter in express 
 terms in a declaration, provided it contains 
 terms sufficiently general to comprehend it 
 in fair and reasonable intendment, will be 
 cured by the verdict; and where a general 
 allegation must, in fair construction, so far 
 require to be restricted that no judge and 
 no jury could have properly treated it in an 
 unrestrained sense, it may reasonably be pre- 
 sumed after verdict that it was so restrained 
 at the trial; 1 Maule & S. 234; 1 Saund. 
 (Gth Ed.) 227, 22S ; 1 Den. Cr. Cas. 356; 2 
 M. & G. 403 : 13 M. & W. 377 ; 6 C. B. 136 ; 
 Worster v. Proprietors of Canal Bridge, 16 
 Pick. (Mass.) 541; Wilson v. Coffin, 2 Cush. 
 (Mass.) 31G; Bartlett v. Crozier, 17 Johns. 
 (N. Y.) 439, 45S, 8 Am. Dec. 428; Kain v. R. 
 Co., 29 Mo. App. 53 ; Bronnenburg v. Rinker, 
 2 Ind. App. 391, 28 N. E. 568. 
 
 AIDING AND ABETTING. The offence 
 committed by those persons who, although 
 not the direct perpetrators of a crime, are 
 yet present at its commission, doing some act 
 to render aid to the actual perpetrator there- 
 of. 4 Bla. Com. 34; Russ. & R. 363, 421; 
 State v* Hildreth, 31 N. C. 440, 51 Am. Dec. 
 369 ; U. S. v. Libby, 1 Woodb. & M. 221, Fed. 
 Cas. No. 15,597; Com. v. Knapp, 10 Pick. 
 (Mass.) 477, 20 Am. Dec. 534; McCarty v. 
 State, 26 Misc. 299. They are principals in 
 the crime; U. S. v. Boyd, 45 Fed. 851; En- 
 geman v. State, 54 N. J. L. 247, 23 Atl. 676. 
 A common purpose to subserve the joint in- 
 terests of the principal offender and his 
 aider and abettor by misapplication of the 
 funds of a bank is not necessary to create the 
 offence of aiding and abetting a bank officer 
 in misapplying its funds in violation of U. 
 S. Rev. Stat. § 5209. It is immaterial whom 
 they may have intended to benefit, if there 
 existed the intent to defraud specified in 
 the act ; Coffin v. U. S., 162 TJ. S. 664, 16 
 Sup. Ct. 943, 40 L. Ed. 1109. 
 
 A principal in the second degree is one 
 who is present aiding and abetting the fact 
 to be done. 1 Hale, PI. Cr. 615 ; 1 Bish. Cr. 
 L. 648 (4). See State v. M'Gregor, 41 N. H. 
 407, Hill v. State, 2S Ga. 604; Doan v. State, 
 2G Ind. 496; State v. Squaires, 2 Nev. 220; 
 State v. Fley, 2 Brev. (S. C.) 33S, 4 Am. Dec. 
 583. Actual presence is not necessary: it is 
 sufficient to be so situated as to come readily 
 to the assistance of his fellows; Green v. 
 State, 13 Mo. 382. 
 
 One cannot be convicted as aider and abet- 
 tor unless the principal is jointly indicted 
 with him, or if indicted alone, the indictment 
 should give the name and description of the 
 principal ; Mulligan v. Com., 84 Ky. 229, 1 
 S. W. 417, and the one charged as an abettor 
 may be convicted as principal ; Benge v. 
 Com., 92 Ky. 1, 17 S. W. 140, and the abettor 
 may be convicted of murder in the second 
 degree, though the principal has been acquit- 
 ted; State v. Whitt, 113 N. C. 716, 18 S. E. 
 715; State v. Bogue, 52 Kan. 79, 34 Pac. 10. 
 
 The aider and abettor in a misdemeanor 
 is chargeable as principal; Com. v. Ahearn, 
 100 Mass. 300, 35 N. E. 853 ; U. S. v. Sykes, 
 58 Fed. 1000. 
 
 To aid or abet a breach of an injunction 
 decree is contempt of court; [1S97] 1 Ch. 
 545. See Accessoby; Principal; Abettor. 
 
 AIDS. In English Law. A species of tax 
 payable by the tenant of lands to his supe- 
 rior lord on the happening of certain events. 
 
 They were originally mere benevolences granted 
 to the lord in certain times of danger and distress, 
 but soon came to be claimed as a right. They were 
 originally given in three cases only, and were of 
 uncertain amount. For a period they were de- 
 manded in additional cases; but this abuse was 
 corrected by Magna Carta (of John) and the stat. 
 25 Edw. I. (conftrmatio cartarum), and they were 
 made payable only, — to ransom the lord's person, 
 when taken prisoner; to make the lord's eldest son 
 a knight; to marry the lord's eldest daughter, by 
 giving her a suitable portion. The first of these re- 
 mained uncertain ; the other two were fixed by act 
 of parliament (25 Edw. III. c. 11) at twenty shillings 
 each, being the Supposed twentieth part of a 
 knight's fee; 2 Bla. Com. 64. They were abolished 
 by the 12 Car. II. c. 24 ; 2 Bla. Com. 77, n. See 1 
 Poll. § Maitl. 330. 
 
 AIEL (spelled also Ayel, Aile, and Ayle). 
 
 A writ which lieth where the grandfather 
 was seized in his demesne as of fee of any 
 lands or tenements in fee simple the day 
 that he died, and a stranger abateth or en- 
 tereth the same day and dispossesseth the 
 heir. Fitzh. Nat Brev. 222; Termes de la 
 Ley; 3 Bla. Com. 186; 2 Poll. & Maitl. 57. 
 See Abatement. 
 
 AIELESSE (Norman). A grandmother. 
 Kelham. 
 
 AILE. A corruption of the French word 
 aieul, grandfather, see Aiel. 
 
 AIR. No property can be had in the air; 
 it belongs equally to all men, being indispen- 
 sable to their existence. But this must be 
 understood with this qualification, that no 
 man has a right to use the air over another 
 man's land in such a manner as to be inju- 
 rious to him. To poison or materially to 
 change the air, to the annoyance of the pub- 
 lic, is a nuisance ; Cro. Car. 510 ; 1 Burr. 
 333 ; see Nuisance. 
 
 That abutting landowners have rights of 
 light and air over a public highway is held 
 in many cases ; Townsend v. Epstein, 93 Md. 
 537, 49 Atl. 629, 52 L. R. A. 409, 86 Am. St. 
 Rep. 441; Story v. R. R. Co., 90 N. Y. 122, 
 43 Am. Rep. 146; Adams v. R- R. Co., 39
 
 AIR 
 
 169 
 
 AIR 
 
 Minn. 286, 39 N. W. 629, 1 L. R. A. 493, 12 I 95 Wis. 10, 09 X. W. SIS; IToine Bull 
 
 Am. St Rep. 644 ; Burnett v. Johnson, 15 N. 
 J. Eq. 481; Field v. Barling, 149 111. 556, Zl 
 N. E. 850, 24 L. R. A. 400, 41 Am. St. Rep. 
 311. This right is said in Barnett v. John- 
 son, 15 N. J. Eq. 481, to be founded in such 
 an urgent necessity that all laws and legal 
 proceedings take it for granted ; a right so 
 strong that it protects itself, so urgent that 
 upon any attempt to annul or infringe it, it 
 would set at defiance all legislative enact- 
 ments and all judicial decisions. This ease, 
 It has been said, anticipated the principle 
 upon which compensation was at last secured 
 in the elevated railroad cases in New York; 
 1 Lewis, Em. Dorn. 1S3 ; Muhlker v. R. Co., 
 197 U. S. 544, 25 Sup. Ct. 522, 49 L. Ed. 872, 
 where it is said: "It is manifest that ease- 
 ments of light and air cannot be made de- 
 pendent upon easement of access, and wheth- 
 er they can be taken away in the interest of 
 the public under the conditions upon which 
 the city obtained title to the streets" depends 
 upon the cases of Story v. R. Co., 90 X. Y. 
 122. 43 Am. Rep. 140. and Lahr v. R. Co., 104 
 X. Y. 268, 10 X. E. 528. 
 
 In the Story Case, the extent of the abut- 
 ting owner's right was defined to be not only 
 access to the lot, but light and air from the 
 street. The court said: "The street oecu 
 
 Conveyance Co. v. City of Roam. lie. 91 y a . 
 52, 20 S E3. 895, -7 L. II. A. 551 ; 
 Richmond, 172 U. S. 82, 19 Sup. Ct I 
 L. Ed. 374; Willets Mfg. Co. v. Board of 
 
 a Freeholders of Mercer ( 
 X. J. L. 95, 40 Atl. 7S2; Brand v. M 
 County, 38 Or. 79, 00 Pac. 390, G2 Pa< 
 50 L. R. A. 389, 84 Am. St. Rep. 772 ; 
 v. Portland, 45 Or. 1, 70 Pa. firmed 
 
 in 200 U. S. 148, 26 Sup. Ct 171, 5 I 
 413; Sears v. Crocker, 184 Mass. 588, <i!> X. 
 B. 327, 100 Am. St. Pep. 577. 
 
 In some jurisdictions it is also held that 
 recovery cannot be had by an abutting own- 
 er because of the interference with the light 
 air or prospect of his property through an 
 elevation of railroad tracks, in the absence 
 of any taking of his land or destruction of 
 his easements, under a statute requiring 
 compensation to be made for all d 
 caused by the taking of land, by the change 
 or discontinuance of a private way. or by 
 the taking of an easement; McKeon v. II. 
 Co., 199 Mass. 292, 85 X. E. 475, 20 I.. R. A. 
 (X. S.) 1001; Egerer v. R. Co., 49 Hun 605, 
 2 X. Y. Supp. 69; and to the same e 
 Austin v. R. Co., 10S Ga. < - ,7i, :: t s. r 
 47 L. R. A. 755; Pennsylvania R. Co. v. Lip- 
 
 pies the surface, and to its uses the rights Pincott, 116 Fa. 472, 9 Atl. 871, 2 Am. St. 
 
 of the adjacent lots are subordinate, but 
 above the surface there can be no lawful 
 obstruction to the access of light and air, to 
 the detriment of the abutting owner;" and 
 "The elements of light and air are both to 
 be derived from the space over the land on 
 the surface of which the street is construct- 
 ed, and which is made servient for that pur- 
 pose." It is said that in that case a dis- 
 tinction was clearly made between the rights 
 of abutting owners in the surface of the 
 street and their rights in the space above 
 the street ; Muhlker v. R. Co., 197 U. S. 544, 
 
 Rep. 618; Jones v. R. Co., 151 Pa. 
 Atl. 134, 17 L. R. A. 758, 31 Am. St. Rep. 722. 
 In Selden v. City of Jacksonville. 28 Pla. 
 55S, 10 South. 457, 14 L. R. A. 370, 29 Am. 
 St. Rep. 27S, cited and approved in Saner v. 
 City of.Xew York, 206 U. S. 544, 27 Sup. 
 Ct. 686, 51 L. Ed. 1170, it is said that there 
 are, incident to property abutting on a 
 certain property rights which the public 
 generally do not possess, viz.: the ri^ht of 
 ingress and egress to and from the lot by 
 the way of the street, and of light and air. 
 These incidental rights are, under a consti- 
 
 25 Sup. Ct. 522, 49 L. Ed. S72, where it was tutional prohibition simply against the "tak- 
 
 held that the owner was protected against 
 impairment of his easements of light and air 
 by the substitution by a railway company 
 of an elevated structure in lieu of its sur- 
 face or partly depressed roadbed which oc- 
 cupied the street at the time of his purchase. 
 
 ing" or "appropriation" of private property, 
 subordinate to the right of the state to al- 
 ter a grade or otherwise improve a street. 
 The original and all subsequent purchasers 
 of abutting lots take with the implied un- 
 derstanding that the public shall have the 
 
 The erection over a street of an elevated: right to improve or alter the street so far as 
 
 viaduct, intended for general public travel, 
 and not devoted to the exclusive use of a 
 private transportation company, is a legiti- 
 mate street improvement equivalent to a 
 change of grade; and as in the case of a 
 change of grade, an owner of land abutting 
 on the street is not entitled to damages for 
 the impairment of access to his land and the 
 lessening of the circulation of light and air 
 over it; Selden v. City of Jacksonville, 28 
 Fla. 558, 10 South. 457, 14 L. R. A. 370, 29 
 Am. St Rep. 278; Willis v. Winona City, 
 59 Minn. 27, 60 X. W. 814, 26 L. R. A. 142 ; 
 Colclough v. City of Milwaukee, 92 Wis. 182, 
 
 may be necessary for its use as a street, and 
 that they can sustain no claim for damages 
 resulting to their lots or property from the 
 improvement or destruction of such inci- 
 dental rights as a mere consequence of the 
 lawful use or improvement of the street as 
 a highway. 
 
 One may erect a high fence shutting oft" 
 light and air from his neighbor; Saddler 
 v. Alexander (Ky.) 56 S. W. 518; Giller v. 
 West, 162 Ind. 17. 69 X. I.\ 548; Metz v. Tier- 
 ney, 13 X. M. 363, S3 Pac. 7SS; Metzger v. 
 Hochrein, 107 Wis. 267, 83 X. W. SOS, 50 L. 
 R. A. 305, 81 Am. St. Rep. 841 ; even though 
 
 65 X. W. 1039 ; Walish v. City of Milwaukee, I his motive is to annoy ; Metzger y. Hoch 
 
 rem,
 
 AIR 
 
 170 
 
 ALASKA 
 
 107 Wis. 267, 83 N. W. 308, 50 L. R. A. 305, 
 81 Am. St. Rep. S41 ; Bordeaux v. Greene, 22 
 Mont. 254, 56 P 74 Am. St. Rep. 600. 
 
 See Easement; Eminent Domain; An- 
 CIENT Lights. 
 
 AIR SHIP. See Aviation. 
 
 AISIAMENTUM (spelled also Esamcntiim, 
 Aismentum), An easement. Spelman Gloss. 
 
 AJUAR. In Spanish Law. The jewelsand 
 furniture which a wife brings in marriage. 
 
 AJUTAGE (spelled also Adjutage). A 
 conical tube used in drawing water through 
 an aperture, by the use of which the quan- 
 tity of water drawn is much increased. 
 
 When a privilege to draw water from a 
 canal, lb. rough the forebay or tunnel, by 
 means of an aperture, has been granted, it 
 is not- lawful to add an ajutage, unless such 
 was the intention of the parties; Schuylkill 
 Nav. Co. v. Moore, 2 Whart. (Pa.) 477. 
 
 ALABAMA. One of the United States of 
 America, being the ninth admitted into the 
 Union. It was formerly a part of Georgia, 
 but in 1798 the territory now included in the 
 states of Alabama and Mississippi was or- 
 ganized as a territory called Mississippi, 
 which was cut off from the Gulf coast by 
 Florida, then Spanish territory, extending to 
 the French possessions in Louisiana. Dur- 
 ing the war of 1812, part of Florida lying 
 between the Perdido and Pearl rivers was 
 occupied by United States troops and after- 
 wards annexed to Mississippi territory, form- 
 ing part of the present state of Alabama, 
 which was occupied principally by Creek In- 
 dians. The country becoming rapidly set- 
 tled by the whites, the western portion was 
 admitted into the Union as the state of Mis- 
 sissippi, and, by act of Congress of March 3, 
 1817, the eastern portion was organized as 
 the territory of Alabama ; 3 U. S. Stat. L. 
 371. 
 
 An act of Congress was passed March 2, 1819, au- 
 thorizing the inhabitants of the territory of Ala- 
 bama to form for themselves a constitution and 
 state government. , In pursuance of that act, the 
 constitution of the state of Alabama was adopted 
 by a convention which met at Huntsville, July 5, 
 and adjourned August 2, 1819. Amendment prohib- 
 iting sale and manufacture of intoxicating liquors, 
 adopted 1909. 
 
 ALASKA. Territory acquired by the 
 United States under treaty with Russia- 
 dated March 30, ratified May 28, 1867. 15 
 Stat. L. 530. By this treaty the inhabitants 
 of the territory were admitted to the enjoy- 
 ment of all the rights, advantages and im- 
 munities of citizens of the United States. 
 The status of Alaska as an incorporated ter- 
 ritory was contemplated by its provisions 
 and has been since so declared by the courts ; 
 Rassmussen v. U. S., 197 U. S. 516, 25 Sup. 
 Ct. 514, 49 L. Ed. 862. 
 
 The general laws of the state of Oregon 
 were declared to be the laws of the terri- 
 tory, so far as applicable and not in con- 
 
 flict with the laws of the United States. 
 By act of May 7, 1000, a delegate to congress 
 was provided. By an order, May 11, 1891, 
 under the Act of March 3, 1891, Alaska was 
 assigned to the ninth judicial circuit See 
 Tebbitoby. 
 
 ALBA FIRM A. White rents; rents re- 
 served payable in silver, or white money. 
 
 They were so called to distinguish them from 
 reditus niyri, which were rents reserved payable in 
 work, grain, and the like. Coke, 2d Inst. 19. 
 
 ALBINATUS JUS. The droit d'aubaine 
 in France whereby the king at the death of 
 an alien was entitled to all his property, 
 unless he had a peculiar exemption. Re- 
 pealed in 1791. 
 
 ALCALDE. A judicial officer in Spain, 
 and in those countries which have received 
 the body of their laws from those of Spain. 
 His powers and duties are similar to those 
 of a justice of the peace. 
 
 ALDERMAN. Equivalent to senator or 
 senior. Cowell. 
 
 In English Law. An associate to the chief 
 civil magistrate of a corporate town or city. 
 
 The word was formerly of very extended significa- 
 tion. Spelman enumerates eleven classes of alder- 
 men. Their duties among the Saxons embraced 
 both magisterial and executive power, but would 
 seem to have been rather an appellation of honor, 
 originally, than a distinguishing mark of office. 
 Spelman, Gloss. 
 
 Aldermannus civitatus burgi seu castellw (alder- 
 man of a city, borough, or castle). 1 Bla. Com. 
 475, n. 
 
 Aldermannus comitatus (alderman of the coun- 
 ty), who is thought by Spelman to have held an in- 
 termediate place between an earl and a sheriff; by 
 others, held the same as the earl. 1 Bla. Com. 116. 
 
 Aldermannus hundredi seu wapentachii (alder- 
 man of a hundred or wapentake). Spelman. 
 
 Aldermannus regis (alderman of the king) was so 
 called, either because he was appointed by the king, 
 or because he gave the judgment of the king in the 
 premises allotted to him. 
 
 Aldermannus totius Anglian (alderman of all Eng- 
 land). An officer of high rank whose duties cannot 
 be precisely determined. See Spelman, Gloss. 
 
 The aldermen of the city of London were prob- 
 ably originally the chiefs of guilds. See 1 Spence, 
 Eq. Jur. 54, 56. For an account of the selection and 
 installation of aldermen of the guild merchant of a 
 borough, see 1 Poll. & Maitl. 648. 
 
 In American Cities. The aldermen are gen- 
 erally a municipal legislative body ; though 
 in many cities they hold separate courts, 
 and have magisterial powers to a considera- 
 ble extent. 
 
 Consult 1 Sharsw. Bla. Com. 116; Reeve, 
 Hist. Eng. Law; Spence, Eq. Jur. 
 
 ALE-CONNER (also called ale-taster). 
 An officer appointed by the court-leet, sworn 
 to look to the assize and goodness of ale and 
 beer within the precincts of the leet. Kitch- 
 in, Courts 46; Whishaw. 
 
 An officer appointed in every court-leet, 
 and sworn to look to the assize of bread, ale, 
 or beer within the precincts of that lordship. 
 Cowell. 
 
 This officer is still continued in name,
 
 ALE-CONNER 
 
 171 
 
 ALIAS 
 
 though the duties arc changed or given up; 
 1 Crabb, Real Prop. 501. 
 
 ALE SILVER. A duty anciently paid to 
 the Lord Mayor of Loudon by the sellers of 
 ale. 
 
 ALE AT OR (Lat (ilea, dice.) A diceplay- 
 er ; a gambler. 
 
 'The more skilful a player he is, the wick- 
 eder lie is." CalvlnuB, Lex. 
 
 ALEATORY CONTRACT. In Civil Law. 
 A mutual agreement, of which the effects, 
 with respect both to the advantages and 
 , whether to all the parties or to some 
 of them, depend on an uncertain event. La. 
 Civ. Code, art 2982. See Moore V. Johnston, 
 8 La. Ann. 488; May, Ins. § 5. 
 
 The term includes contracts, such as in- 
 surance, annuities, and the like. See Gam- 
 ing; Margin; Optiox. 
 
 An aleatory sale is one the completion of 
 which depends on the happening of an un- 
 certain event. 
 
 ALER SANS JOUR CFr. allcr sana jour, 
 to go without day). A phrase formerly 
 used to indicate the final dismissal of a case 
 from court. The defendant was then at lib- 
 erty to go, without any day appointed for 
 his subsequent appearance; Kitchiu, Courts 
 146; Termes de la Ley. 
 
 ALFET. The vessel in which hot water 
 was put, for the purpose of dipping a crimi- 
 nal's arm in it up to the elbow in the ordeal 
 by water. Cowell. See Ordeal: 
 
 ALIA (Lat). Other things. 
 
 ALIA ENORMIA (Lat. other wrongs). A 
 general allegation, at the end of a declara- 
 tion, of wrongful acts committed by the de- 
 fendant to the damage of the plaintiff. In 
 form it is, "and other wrongs then and there 
 did against the peace," etc. Under this al- 
 legation, damages and matters which natu- 
 rally arise from the act complained of may 
 be given in evidence; 2 Greenl. Ev. § 678; 
 including battery of servants, etc., in a dec- 
 laration for breaking into and entering a 
 house; 2 Term 1GG ; Shafer v. Smith. 7 Harr. 
 & J. (Md.) 68; and all matters in g 
 which go in aggravation of damages merely, 
 but would not of themselves be ground for 
 an action; Bull. N. P. 89; Heminway v. Sax- 
 ton, 3 Mass. 222; Dimmett v. Eskridge, 6 
 Munf. (Va.) 308. 
 
 But matters in aggravation may be stated 
 specially; Moore v. Fenwick, Gilni. < \'a. i 
 227; and ma tiers which of themselves would 
 constitute a ground of actiou must be so 
 stated: 1 Chit PI. 348; Loker v. Damon, 17 
 Pick. (Mass.) 2S4. See Aggravation. 
 
 ALIAS (Lat. alius, another). At another 
 time ; otherwise. 
 
 The term is sometimes used to indicate 
 an assumed name. See Alias Dictus. 
 
 An alias writ is a writ issued where one 
 of the same kind has been issued before in 
 
 the same cause. See Roberts v. ■ - 7 
 
 Conn. 11.". 
 
 The second writ runs, in - 
 command you as we have 
 
 aiout alias i. and the Latin word 
 is used to denote both the writ and the 
 clause in which it or its correspoi 
 lish word is found. It is used of all s 
 of writs. 
 
 No waiver can make an alias attad 
 writ good and it Is unauthorized; Dennison 
 v. BlumenthaL :;7 ill. App. 385; an alii 
 ecution should not issue on return of the 
 original which had been deliv* r d long prior 
 
 thereto, except it be shown that it bad 1 n 
 
 delivered to an officer during its life, and 
 had not been satisfied; People v. Brayton, 
 37 ill. App. 319. 
 
 ALIAS ICTUS (Lat otherwise called). 
 A description of the defendant by adding to 
 his real name that by which he is known in 
 some writing on which he is to be charged, 
 or by which he is known. Reid v. Lord. 4 
 Johns. (X. Y.) 118; Meredith v. Hinsdale. 
 2 Caines (N. Y.i 362; Petrie v. Woodwprth, 
 •°. Caines (X. Y.) 219. From long usag 
 word alias alone is now considered sufl 
 Kennedy v. People. .",'.) x. Y. 245. See Name. 
 
 ALIBI (Lat. elsewhere). Presence in an- 
 other place than that described. 
 
 When a person, charged with a crime, proves fse 
 cailcm die fuisse alibi) that he was, at the time al- 
 leged, In a different place from that in which it was 
 committed, he is said to prove an alibi, the effect of 
 which is to lay a foundation for the necessary in- 
 ference that he could not have committed it. See 
 Bracton 140. 
 
 This proof Is usually made out by the testimony 
 of witnesses, but it is presumed it might be made 
 out by writings; as if the party could prove by a 
 record, properly authenticated, that on the day or 
 at the time in question he was in another place. 
 
 It has been said that this defence must be 
 subjected to a most rigid scrutiny, and that 
 jit must be established by a prepondei 
 'of proof; Com. v. Webster, 5 Cush. iV 
 324, 52 Am. Dec. 711; Washington Ben. Soe. 
 v. Bacher, 20 Pa. 429; creed v. People, Si m. 
 565; State v. Reed. 62 la. 40, 17 X. W. 150. 
 See remarks of Shaw, C J., in Wei 
 Case, and 2 Alison's Cr. L. of Scotl. 624; 
 Bish. Crim. L. 1061. In many states the de- 
 fence is established if the evidence raises in 
 the minds of the jury a reasonable doubt 
 as to the guilt of the defendant; state v. 
 Howell. 100 Mo. res, 14 S. W. 4: Adams v. 
 State, 28 Fla. 511, 10 South. 106; Pate v. 
 
 State, 94 Ala. 1 I. Id South. I pie V. 
 
 Long Ah Sing. 64 CaL 253, 28 
 Landis v. State, 70 Ca. 651, 48 Am. Lee. 588; 
 Howard v. State. 50 Ind. 190; People v. 
 PearsaU, 50 Mich. 2."::. 15 X. W. 98; .•md if 
 Cue testimony tends to prove an alibi, failure 
 to instruct thereon is error; Fletcher v. 
 State. 85 Ga. 666, 11 S. E. 872. An instruc- 
 tion that an alibi need not be established be- 
 yond a reasonable doubt, but it should be to 
 the satisfaction of the jury, is correct; Peo-
 
 ALIBI 
 
 172 
 
 ALIEN 
 
 pie v. Stone, 117 N. Y. 4S0, 23 N. E. 13; 
 Caldwell v. State, 28 Tex. App. 56G, 14 S. W. 
 122; Garrity v. People, 107 111. 1G2; State v. 
 Jennings, 81 Mo. 1S5, 51 Am. Rep. 236 ; Ware 
 v. State, 67 Ga. 349. It is peculiarly liable 
 to be supported by perjury and false testi- 
 mony of all sorts. There must be satisfac- 
 tory proof that the prisoner could not have 
 been at the place where the crime was com- 
 mitted, but the proof need not be higher 
 than is required as to other facts; Johnson 
 v. State. 59 Ga. 142. See State v. Northrup, 
 48 la. 583, 30 Am. Rep. 408; People v. Gam, 
 69 Cal. 552, 11 Pac. 183. 
 
 ALIEN (Lat alienus, belonging to anoth- 
 er; foreign). A foreigner; one of foreign 
 birth. 
 
 In England, one born opt of the allegiance 
 of the king. 
 
 In the United States one born out of the 
 jurisdiction of the "United States and who 
 has not been naturalized under their consti- 
 tution and laws. 2 Kent 50. 
 
 The alien minor child of a naturalized cit- 
 izen who has never dwelt in the United 
 States is not invested with citizenship by 
 the provision of § 2172, U. S. R. S. 1901, p. 
 1334, that minor children of naturalized citi- 
 zens shall if dwelling in the U. S. be con- 
 sidered citizens thereof; Zartarian v. Bill- 
 ings, 204 U. S. 170, 27 Sup. Ct. 182, 51 L. Ed. 
 428. 
 
 Citizens of Porto Rico are not aliens ; Gon- 
 zales v. Williams, 192 U. S. 1, 24 Sup. Ct. 
 177, 48 L. Ed. 317. 
 
 As to right to sue, see Abatement. 
 
 An American woman who marries a for- 
 eigner takes her husband's nationality, but 
 not if she continues to reside in the United 
 States; Wallenburg v. R. Co., 159 Fed. 217. 
 If she resides abroad at the termination of 
 the marriage relation, she may resume her 
 citizenship by registering as an American 
 citizen with a consul of the United States 
 or by returning to the United States; Act 
 of March 2, 1907. 
 
 A treaty with Japan securing to her sub- 
 jects full liberty to enter, travel or reside in 
 any part of the United States will not in- 
 clude such persons as are likely to become a 
 public charge, or those forbidden to enter by 
 the immigrant acts; The Japanese Immi- 
 grant Case, 189 U. S. 86, 23 Sup. Ct. 611, 47 
 L. Ed. 721 ; nor will any treaty give to a 
 British subject any different measure of jus- 
 tice from our own ; Barrington v. Missouri, 
 205 U. S. 487, 27 Sup. Ct. 582, 51 L. Ed. 890. 
 
 An alien cannot in general acquire title 
 to real estate by descent, or by other mere 
 operation of law; 7 Co. 25c; Jackson v. 
 Lunn, 3 Johns. Cas. (N. Y.) 109; Hunt v. 
 Warnicke's Heirs, Hard. (Ky.) 61; Geofroy 
 v. Riggs, 133 U. S. 205, 10 Sup. Ct. 295, 33 
 L. Ed. 642 ; and if he purchase land, he may 
 be divested of the fee, upon an inquest of 
 office found; but until this is done he may 
 
 sell, convey, or devise the lands and pass a 
 good title to the same; Orr v. Hodgson, 4 
 Wheat. (U. S.) 453, 4 L. Ed. 613; Fox v. 
 Southack, 12 Mass. 143; Mooers v. White, 
 6 Johns. Ch. (N. Y.) 365; Montgomery v. 
 Dorion, 7 N. H. 475; 1 Washb. R. P. 49; 
 Oregon Mtg. Co. v. Carstens, 16 Wash. 165, 
 
 47 Pac. 421, 35 L. R. A. 841. The state 
 alone can question his right to hold land; 
 Belden v. Wilkinson, 33 Misc. 659, 68 N. Y. 
 Supp. 205 ; Madden v. State, 68 Kan. 658, 75 
 Pac. 1023. The disabilities of aliens in re- 
 spect to holding lands are removed by stat- 
 ute in many of the states of the United 
 States and by United States treaties; Bahu- 
 aud v. Bize, 105 Fed. 485, and cases cited. 
 The California Act of May 19, 1913, permits 
 that aliens not eligible to citizenship may 
 hold land to the extent provided by any ex- 
 isting treaty between the United States and 
 such aliens' nation (and also may hold land 
 for agricultural purposes for a term of not 
 over three years). 
 
 Provisions in regard to the transfer, devise 
 or inheritance of property by aliens are fit- 
 ting subjects of regulation under the treaty- 
 making power of the United States, and a 
 treaty will control or suspend the statutes 
 of the individual states whenever it differs 
 from them and, for that reason, if the sub- 
 ject of a foreign government is disqualified, 
 under the laws of a state, from taking, 
 holding or transferring real property, such 
 disqualification will be removed if a treaty 
 between the United States and such foreign 
 government confers the right to take, hold, 
 or transfer real property; Wunderle v. Wun- 
 derle, 144 111. 40, 33 N. E. 195, 19 L. R. A 
 84. So by virtue of treaties existing be- 
 tween the United States and France and 
 Bavaria, citizens of the latter countries are 
 exempt from the payment of a state tax im- 
 posed on foreign heirs and legatees; Succes- 
 sion of Dufour, 10 La. Ann. 391 ; Succession 
 of Crusius, 19 id. 369; and by the "most fa- 
 vored nation" clause of the treaty with Italy, 
 a subject of that country is likewise exempt 
 from the same tax ; Succession of Rixner, 
 
 48 La. Ann. 552, 19 South. 597, 32 L. R. A. 
 177. 
 
 The right of a state, in the absence of a 
 treaty, to declare an alien capable of inher- 
 itance or taking property and holding the 
 same within its borders, is not precluded by 
 the constitution of the United States ; Art. 
 I, § 10, declaring that no state shall enter 
 into any treaty, alliance or confederation ; 
 Blythe v. Hinckley, 180 U. S. 333, 21 Sup. 
 Ct. 390, 45 L. Ed. 557. 
 
 An alien woman acquires citizenship by 
 her marriage to an American, though she be 
 an immigrant about to be deported ; Hop- 
 kins v. Fachant, 130 Fed. 839, 65 C. C. A. 1. 
 
 After the termination of the marital re- 
 lation, a woman who has acquired citizen- 
 ship by marriage may retain it by continu-
 
 ALIEN 
 
 173 
 
 ALIEN 
 
 
 ing in the United States. She may renounce 
 it before a court having jurisdiction to 
 naturalize aliens. If she reside abroad she 
 may retain her citizenship by registering 
 with a United States consul within the year; 
 Act of March 2, '07. 
 
 The right to exclude or to expel aliens in 
 war or in peace is an inherent and inaliena- 
 ble right of ever}- independent nation ; Fong 
 Yue Ting v. U. S. f 149 U. S. 698, 13 Sup. Ct. 
 1016, ■•'.7 L. Ed. 905; so in England; [1891] 
 A. C. 272. Congress may exclude aliens alto- 
 gether and prescribe the conditions upon 
 which they may come to this country; U. S. 
 v. Bitty, 208 U. S. 393, 28 Sup. Ct 396, 52 
 L. Ed, 543 ; and may have its policy in that 
 respect enforced exclusively through execu- 
 tive officers without judicial intervention; 
 The Chinese Exclusion Case, 130 U. S. 581, 
 9 Sup. Ct. 623, 32 L. Ed. 10G8; Nishirnura 
 Ekin v. U. S., 142 U. S. 651, 12 Sup. Ct. 336, 
 35 L. Ed. 1146; Lena Moon Sing v. U. S., 
 15S U. S. 538, 15 Sup. Ct. 967, 39 L. Ed. 1082; 
 Fok Ying Yo v. U. S., 185 U. S. 296, 22 Sup. 
 Ct. 6S6, 46 L. Ed. 917; Kaoru Yamataya v. 
 Fisher, 189 U. S. 86, 23 Sup. Ct. 611, 47 L. 
 Ed. 721. 
 
 What classes are excluded: Alien anar- 
 chists; U. S. v. Williams, 194 U. S. 279, 
 24 Sup. Ct. 719, 48 L. Ed. 979 ; all idiots, in- 
 sane persons, paupers, or persons likely to 
 become a public charge, persons suffering 
 from a loathsome disease, persons who have 
 been convicted of a felony or other infamous 
 crime or misdemeanor involving moral turpi- 
 tude, polygamists, and also any person whose 
 ticket or passage is paid for with the money 
 of another, or who is assisted by others to 
 come, unless it is satisfactorily shown that 
 such person does not belong to one of the 
 foregoing excluded classes or to the class of 
 contract laborers; 26 Stat. L. 1084. U. S. 
 Comp. Stat. 1901, p. 1294; Kaoru Yamataya 
 v. Fisher, 189 U. S. 86, 23 Sup. Ct. 611, 47 
 L. Ed. 721 ; alien women for the purpose of 
 prostitution or for any other immoral pur- 
 pose are excluded; U. S. v. Bitty, 20S U. S. 
 393, 28 Sup. 396, 52 L. Ed. 543; and their 
 importation is a crime against the United 
 States; Act Feb. 20, 1907. 34 Stat. L. 898. 
 
 As to the exclusion of Chinese and Japan- 
 ese, see those titles. 
 
 As to the nature of an alien's relation to 
 the government, see Allegiance. 
 
 It is unlawful for any alien person or cor- 
 poration to acquire, hold or own real estate 
 or any interest therein in any of the terri- 
 tories of the United States, or in the Dis- 
 trict of Columbia, except such as may be 
 acquired by inheritance or in good faith in 
 the ordinary course of justice in the collec- 
 tion of debts, except where the right to hold 
 and dispose of lands in the United States is 
 secured by existing treaties with such for- 
 eign countries. Corporations of which more 
 than twenty per cent, of the stock is held 
 by aliens come within the same category ; 
 
 24 U. S. Stat. L. 470; 1 R. S. Suypl. p. 556. 
 
 Foreign governments and their r 
 tives may own real estate for leg 
 residences in the District of Columbia ; 1 
 R. S. Suppl. 582. 
 
 An alien has a right to acquire personal 
 estate, make and enforce contracts in rela- 
 tion to the same; he is protected from in- 
 juries and wrongs to his person and prop- 
 erty; he may sue and be sued; 7 Co. 17; 
 Dyer 2 b; Judd v. Lawrence, l Cush. ' 
 531; Slatter v. Carroll, 2 Sandf. Ch. (N. Y.) 
 582; Taylor v. Carpenter, 2 Woodb. & M. 1, 
 Fed. Cas. No. 13,785; I >e Laveaga v. Wil- 
 liams, 5 Sawy. 573, Fed. Cas. No. 3,759; Air- 
 hart v. Massieu, 98 U. S. 491, 25 L. Ed. 213 ; 
 Carlisle v. U. S., 16 Wall. (U. S.) 147, 21 
 L. Ed. 426; McNair v. Toler, 21 Minn. 175; 
 Crashley v. Pub. Co., 179 N. Y. 27, 71 N. E. 
 258, 1 Ann. Cas. 196. A state may debar an 
 alien from holding stock in its corporations 
 or admit him to that privilege on such terms 
 as it may prescribe ; State v. Ins. Co., 70 
 Conn. 590, 40 Atl. 465, 66 Am. St. Rep. 138. 
 
 He may be an executor or administrator 
 unless prohibited by statute ; Cutler v. How- 
 ard, 9 Wis. 309 ; 1 Schouler's Ex'rs, 270. 537 ; 
 Carthey v. Webb, 6 N. C. 2GS. 
 
 Discrimination in favor of local creditors 
 is not unconstitutional where the effect of 
 judgment in favor of an alien creditor would 
 be to remove a fund to a foreign country 
 there to be administered in favor of for- 
 eign creditors; The Disconto Gesellschaft v. 
 Umbreit, 208 U. S. 570, 28 Sup. Ct. 337, 52 
 L. Ed. 625. See 21 H. L. R. 537. 
 
 In England no alien can own a British 
 ship or any share of one. He has no legal 
 remedy in respect of an act of state, lie 
 will not be heard in an English court of law 
 to complain of the acts of the English gov- 
 ernment. He has the protection of the laws 
 of England against all private persons who 
 do him an injury, but between him and the 
 servants of the Crown, the laws are silent; 
 18 L. Q. Rev. 47. 
 
 See Pollock, Torts, as to what extent a 
 resident alien is or ought to be protected 
 against acts of state; See Governmental 
 Acts. 
 
 An alien may hold lands in Mexico, as a 
 native, except that if within twenty l< 
 of the Northern frontier, he must have the 
 consent of the government and if within five 
 leagues of the coast, the consent of Con- 
 gress; Taylor, Mex. Code. 1902, 313. The 
 ordinary case of a sailor deserting while on 
 shore leave is not comprehended by the pro 
 visions of the immigration act of March 3, 
 1903, making it the duty of any officer in 
 charge of any vessel bringing an alien to 
 the United States to adopt precautions to 
 prevent the landing of such alien; Taylor v. 
 U. S., 207 U. S. 120, 2S Sup. Ct. 53, 52 L. 
 Ed. 130. 
 
 An alien, even after being naturalized, is 
 ineligible to the office of president of the
 
 ALIEN 
 
 174 
 
 ALIENATION 
 
 tinted States, and in some states, as in New 
 York, to that of governor; he cannot be a 
 member of Congress till the expiration of 
 seven years after bis naturalization. An 
 alien can exercise no political rights what- 
 ever; he cannot, therefore, vote at any po- 
 litical election, fill any office, or serve as a 
 juror. See Bryce, Am. Com.; Collins v. Ev- 
 ans, 6 Johns. (X. Y.) 333. The disabilities of 
 aliens may be removed and they may become 
 citizens, under the provisions of the acts of 
 Congr 
 
 As to the case of alien enemies, see that 
 title. As to contracts for alien labor, see 
 Laror. 
 
 As to their right to bring actions for death 
 by wrongful act, see Death. See Chinese; 
 DEroF.TATioN; Immigration; Japanese ; Cit- 
 izen; Naturalization; Treaty; Expatria- 
 tion; Parties. 
 
 ALIEN ENEMY. One who owes allegiance 
 to the adverse belligerent. 1 Kent 73. 
 
 He who owes a temporary but not a per- 
 manent allegiance is an alien enemy in re- 
 spect to acts done during such temporary 
 allegiance only; and when his allegiance 
 terminates, his hostile character terminates 
 also ; 1 B. & P. 163. 
 
 Alien enemies are said to have no rights, 
 no privileges, unless by the king's special 
 favor, during time of war; 1 Bla. Com. 372; 
 Bynkershoek 195; 8 Term 166. But the ten- 
 dency of modern law is to give them pro- 
 tection for person and property until or- 
 dered out of the country. If resident with- 
 in the country, they may sue and be sued ; 
 2 Kent 63 ; Clarke v. Morey, 10 Johns. (N. Y.) 
 69; Russel v. Skipwith, 6 Binn. (Pa.) 241; Zach- 
 arie v. Godfrey, 50 111. 186, 99 Am. Dec. 506 ; 
 they may be sued as nonresident defendants ; 
 McVeigh v. U. S., 11 Wall. (U. S.) 259, 20 L. 
 Ed. 80 ; Dorsey v. Kyle, 30 Md. 512, 96 Am. 
 Dec. 617 ; and may be served by publication, 
 even though they had no actual notice, be- 
 ing within the hostile lines ; Dorsey v. 
 Thompson, 37 Md. 25. Partnership with a 
 foreigner is dissolved by the same event that 
 makes him an alien enemy; Hanger v. Ab- 
 bott, 6 Wall. (U. S.) 532, 18 L. Ed. 939. See 
 War. 
 
 ALIEN AND SEDITION LAWS. See Se- 
 dition. 
 
 ALIENAGE. The condition or state of an 
 alien. 
 
 ALIENATE. To convey; to transfer. Co. 
 Litt. 118 b. Alien is very commonly used in 
 the same sense; 1 Washb. R. P. 53. 
 
 ALIENATION. The transfer of the prop- 
 erty and possession of lands, tenements, or 
 other things, from one person to another. 
 Termes de la Ley. 
 
 It is particularly applied to absolute con- 
 veyances of real property; Conover v. Ins. 
 Co., 1 N. Y. 290, 291. See Conveyance; 
 
 DtED. 
 
 By matter of record may be: Private acts 
 
 of the legislature; grants, patents of hinds, 
 
 lines, common recovery- See Conveyance; 
 
 Grant; Fine; Common Recovery; 
 
 Devise; Will. 
 
 In Medical Jurisprudence. A generic term 
 denoting the different kinds of aberration of 
 the human understanding. 1 Beck, Med. Jur. 
 535. See Insanity. 
 
 ALIENATION OF AFFECTIONS. The 
 rank and condition of the defendant cannot 
 be considered in assessing damages, though 
 his occupation and perhaps his social posi- 
 tion may be shown ; Bailey v. Bailey, 94 la. 
 598, 63 N. W. 341 ; and evidence of the con- 
 dition of defendant as to means is not ad- 
 missible. Such evidence must be confined to ' 
 general reputation and not extended to par* 
 ticulars; Kniffen v. McConnell, 30 N. Y. 285 ; 
 Chellis v. Chapman, 125 N. Y. 214, 26 N. E. 
 308, 11 L. R. A. 784 ; 2 Fost & F. 160. In 
 other cases it is said that "evidence of the 
 defendant's property was admissible to show 
 the extent of the injury" ; Lawrence v. Cooke, 
 56 Me. 187, 96 Am. Dec. 443; Bennett v. 
 Beam, 42 Mich. 346, 4 N. W. 8, 36 Am. Rep. 
 442 ; Allen v. Baker, 86 N. C. 91, 41 Am. Rep. 
 444. 
 
 See Entice. 
 
 ALIENATION OFFICE. An office in Eng- 
 land to which all writs of covenants and en- 
 tries were carried for the recovery of fines 
 levied thereon. 
 
 ALIENEE. One to whom an alienation is 
 made. 
 
 ALIENI GENERIS (Lat). Of another 
 kind. 
 
 ALIENI JURIS (Lat). Subject to the au- 
 thority of another. An infant who is under 
 the authority of his father, or guardian, and 
 a wife under the power of her husband, are 
 said to be alieni juris. See Sui Juris. 
 
 ALIENIGENA (Lat). One of foreign 
 birth; an alien. 7 Coke 31. 
 
 ALIENOR. He who makes a grant or 
 alienation. 
 
 ALIGNMENT. The act of laying out or 
 adjusting a line. The state of being so laid 
 out or adjusted. The ground plan of a rail- 
 way or other road or work as distinguished 
 from its profile or gradients. Village of 
 Chester v. Leonard, 68 Conn. 495, 37 Atl. 
 397. 
 
 ALIMENT. In Scotch Law. To support; 
 to provide with necessaries. Paterson, 
 Comp. §§ 845, 850. 
 
 Maintenance ; support ; an allowance 
 from the husband's estate for the support 
 of the wife. Paterson, Comp. § 893. 
 
 In Civil Law. Food and other things nec- 
 essary to the support of life ; money allowed 
 for the purpose of procuring these. Dig. 50. 
 16. 43.
 
 ALIMENT 
 
 175 
 
 ALIMONY 
 
 In Common Law. To supply with neces- 
 saries. Parcell \. Purcell, 3 Edw. Ch. (N. I.) 
 
 194. 
 
 ALIMENTA (Lat. alere, to support). 
 Things necessary to sustain life. 
 
 Under the term are included food, clothing, and a 
 house; water also, It Is said, in those regions 
 where water is sold; Calvinus, Lex.; Dig. 50. 16. 43. 
 
 ALIMONY. The allowance which a hus- 
 band by order of court pays to his wife, liv- 
 ing separate from him, for her maintenance- 
 2 Bish. Marr. & D. 351 ; Chase v. Chase, 55 
 Me. 21; Odoni v. Odoni, 3G Ga. 2SG. 
 
 It is also commonly used as equally ap- 
 plicable to all allowances, whether annual 
 or In gross, made to a wife upon a decree of 
 divorce. Burrows v. Purple, 107 Mass. 132 
 Larsons v. Parsons, 9 N. H. 009, 32 Am. Dec. 
 3G2 ; Buckminster v. Buckminster, 38 VL 
 24S, SS Am. Dec. 052; Iledrick v. Iledrick, 
 28 I ml. 291. 
 
 Alimony pendente lite is that ordered dur- 
 ing the pendency of a suit in divorce. 
 
 Permanent alimony is that ordered for the 
 use of the wife after the termination of the 
 suit for divorce during their joint lives. 
 
 To entitle a wife to permanent alimony, 
 the following conditions must be complied 
 with : 
 
 First, a legal and valid marriage must be 
 proved; 1 Rob. EccL 4S4 ; Purcell v. Pur- 
 cell. 4 lien. & M. (Va.) 507; McGee v. McGee, 
 10 Ga. 477; 5 Sess. Cas. N. S. Sc. 1288; 
 Bowman v. Bowman, 24 111. App. 165. It 
 will not be allowed where the marriage is de- 
 nied ; Ilite v. Hite, 124 Cal. 389, 57 Pac. 227, 
 45 L. It. A. 793, 71 Am. St. Rep. S2 ; McKen- 
 na v. McKenna, 70 111. App. 340; Vreeland 
 v. Vreeland, 18 N. J. Eq. 43 ; Collins v. Col- 
 lins. 71 X. Y. 269; but see Schonwald v. 
 Schonwald. 62 N. C. 219. But it has been held 
 that where there had been a marriage which 
 was void because the woman had another 
 husband, alimony would be allowed; Cray 
 v. Cray, 32 N. J. Eq. 25. So where there 
 had been marriage ceremony, but its legality 
 was questioned; Reit'schneider v. Reif- 
 schneider. 241 111. 92, 89 N. E. 255. In Brink- 
 ley v. Brinkley, 50 N. Y. 1S4, 10 Am. Rep. 
 460, it was held that where the marriage is 
 denied, the court will pass upon the ques- 
 tion for the purpose of an application for 
 alimony, and grant it if there is a fair pre- 
 sumption of marriage. 
 
 Second, by the common law the relation of 
 husband and wife must continue to subsist; 
 for which reason no alimony could be award- 
 ed upon a divorce a vinculo matrimonii, or 
 a sentence of nullity; 1 Lee, Eccl. 621; Fisch- 
 li v. Fischli, 1 Blackf. (Ind.) 360, 12 Am. 
 Dec. 251 ; Davol v. Davol, 13 Mass. 264 ; 
 Jones v. Jones, IS Me. 30S, 36 Am. Dec 7^:: : 
 Holmes v. Holmes, 4 Barb. (N. Y.) 2!»:>; Crane 
 v. Meginnis, 1 Gill & J. (Md.) 4G3, 19 Am. 
 Dec. 237; Richardson v. Wilson, *• Yerg. 
 <Tcnn.) 67. This rule, however, has been 
 
 very generally changed by statute in this 
 country : L' Bish. M. & D. § 3 
 
 Third, the wife must ' 
 the bed and board of her husband I 
 divorce a vinculo matrimonii) by judi- 
 cial decree; voluntary separation, for what- 
 ev< c cause, is insufficient And. as a g< 
 rule, the alimony must be awarded by the 
 -nine decne which grants the separate 
 at least in the s'ai.ie suit, it not 1 
 erally competent to maintain a su 
 •md independent suit for that purpose; Law- 
 son v. Shotwell, -'7 Miss. 630; Bankston v. 
 
 ton, id. <i'.»2 : Lynn v. Lyon, 21 : 
 is. - ,; Fischli v. Fischli. 1 Blackf. (Ind. 
 12 Am. Dec. 251: Richardson v. Wilson, 8 
 Yerg. (Tenn.) 67. The right to alimony n< ed 
 not be determined in the suit for divorce, if 
 such right is reserved in the judgment; Ga- 
 lusha v. Galusha, 138 X. Y. ^72. :;." X. K. 
 1062. 
 
 Fourth, the wife must not be the guilty 
 party; Palmer v. Palmer, 1 Paige. Ch. (X. Y.) 
 27d: Dailey v. Dailey, Wrighl (Ohio) oil; 
 Peine v. Pence. G P.. Monr. (K.v.i 496; Lovett 
 v. Lovett, 11 Ala. 763; Bheafe v. sheafe, 24 
 X. II. 564; Hickling v. Ettckling, 40 111. App. 
 73; Spaulding v. Spaulding, 133 Ind. 122, ::u 
 X. E. 22 1. 36 Am. St. Rep. 534; but in some 
 states there are statutes in terms which per- 
 mit the court, in its discretion, to decree ali- 
 mony to the guilty wile; 2 Bish. M. 
 378; [1892] Prob. Div. 1; aid continued 
 adultery of wife after divorce, is no ground 
 for vacating a previous order allowing 
 permanent alimony; Cole v. Cole, 35 111. App. 
 544; Brooks v. Brooks. 18 W. X. C. < Pa.) 115. 
 
 It is said to be usual in a divorce decree 
 in England to add the words dum 8 
 casta (while she remains unmarried and 
 chaste), "no doubt for the reason that it 
 would seem a parody of justice to suggest 
 that 'a woman should lose her allowance if 
 she marries again, but should not lose it if 
 she lives with a man as bis mistress. When 
 indeed the reputation of the wife is spotless, 
 .voids may be omitted." [1898] 1'. 138. 
 
 It may be that a divorce is refused and yel 
 alimony allowed to the wife, but not if the 
 husband is willing to be reconciled on prop- 
 er terms and has not abandoned her; Lath- 
 am v. Latham. 30 Gratt. (Va.) ""7. 
 
 In California, a divorce bavin- been de- 
 creed against a non-resident, an order for 
 alimony and for custody of children was va- 
 cated on appeal: ."><) Am. Law Lev. 604, with 
 elaborate discussion and criticism of this 
 ruling. A decree for it cannot be made 
 against a defendant who is not served with 
 process for appearance, does not appear, or 
 has no property within control of the court; 
 Lynde v. Lynde, 54 X. J. Eq. 473, 35 Atl. (ill. 
 Whether it can be had after a final decree 
 in the divorce case which is silent as to it, ex- 
 cept through amendment of decree, queen : id. 
 
 Where a judgment for alimony i.s rendered 
 in a court of one state, its enforcement in
 
 ALIMONY 
 
 176 
 
 ALIMONY 
 
 another, according to the laws of the latter, 
 is not a deprivation of property without due 
 process of law; Lynde v. Lynde, 181 U. S. 
 1S3, 21 Sup. Ct. 555, 45 L. Ed. 810. 
 
 Alimony pendente lite is granted much 
 more freely than permanent alimony, it be- 
 ing very much a mutter of course to allow 
 the former, unless the wife has sufficient 
 separate property, upon the institution of a 
 suit; 1 Hagg. Eccl. 77;: ; 1 Curt. Eccl. 441; 
 Logan v. Logan, 2 B. Monr. (Ky.) 142; Col- 
 lins v. Collins, 2 Paige Ch. (N. Y.) 9; Rose 
 v. Rose, 11 Paige Ch. (N. Y.) 106; Harding 
 v. Harding, 40 111. App. 202; either for the 
 purpose of obtaining a separation from bed 
 and board ; Smith v. Smith, 1 Edw. Ch. (N. 
 Y.) 255 ; a divorce a vinculo matrimonii; 
 Ryan v. Ryan, 9 Mo. 539 ; Jones v. Jones, 18 
 Me. 30S, 36 Am. Dec. 723 ; Hewitt v. Hewitt, 
 1 Bland Ch. (Md.) 101 ; or a sentence of nul- 
 lity, and whether the wife is plaintiff or de- 
 fendant The reason is tbat it is improper 
 for tbe parties to live in matrimonial co- 
 habitation during the pendency of such a 
 suit, whatever may be its final result. Sbe 
 need only show probable ground for divorce 
 to entitle her to alimony ; Wooley v. Wooley, 
 24 111. App. 431. Upon the same principle, 
 the husband who has all the money, while 
 the wife has none, is bound to furnish her, 
 whether plaintiff or defendant, with the 
 means to defray her expenses in the suit; 
 Jones v. Jones, 2 Barb. Ch. (N. Y.) 146 ; Story 
 v. Story, Walk. Ch. (Mich.) 421; Daiger v. 
 Daiger, 2 Md. Ch. Dec. 335 ; Tayman v. Tay- 
 man, 2 Md. Ch. Dec. 393. See Taylor v. Tay- 
 lor, 46 N. C. 528. This alimony ceases as 
 soon as the fault of the wife is finally deter- 
 mined; Dawson v. Dawson, 37 Mo. App. 207. 
 
 It has been held that a court of chancery 
 has jurisdiction to grant alimony to a wife 
 when the conduct of the husband renders it 
 unsafe for her to live with him or he turns 
 her out of doors ; Almond v. Almond, 4 Rand. 
 (Va.) 662, 15 Am. Dec. 781; but there is a 
 conflict of decisions as to whether, without 
 a statute, an independent suit for alimony 
 can be sustained; see 12 Am. Dec. 257, note, 
 where the cases supporting both views are 
 collected. Is not a matter of independent 
 claim or right, but is incidental to a suit 
 for divorce or other relief between husband 
 and wife ; Lynde v. Lynde, 54 N. J. Eq. 473, 
 35 Atl. 641. 
 
 Alimony is not a sum of money nor a spe- 
 cific proportion of the husband's estate giv- 
 en absolutely to the wife, but it is a con- 
 tinuous allotment of sums payable at regu- 
 lar intervals, for her support from year to 
 year; Wallingsford v. Wallingsford, 6 Harr. 
 & J. (Md.) 485; Parsons v. Parsons, 9 N. H. 
 309, 32 Am. Dec. 362 ; Clark v. Clark, 6 W. & 
 S. (Pa.) 85; Miller v. Miller, 75 N. C. 70; 
 Phelan v. Phelan, 12 Fla. 449 ; Grain v. Ca- 
 vana, 62 Barb. (N. Y.) 109; but in some 
 states statutory allowances of a gross sum 
 have been given to the wife under the name 
 
 of alimony ; see Parsons v. Parsons, 9 N. H. 
 309, 32 Am. Dec. 362 ; Lyon v. Lyon, 21 Conn. • 
 1 85 ; Herron v. Herron, 47 Ohio St. 544, 25 
 N. E. 420, 9 L. R. A. 667, 21 Am. St. Rep. 854 ; 
 Burrows v. Purple, 107 Mass. 428; McClung 
 v. McClung, 40 Mich. 493 ; Ross v. Ross, 78 
 111. 402; Williams v. Williams, 36 Wis. 362; 
 Miller v. Clark, 23 Ind. 370; Blankenship v. 
 Blankenship, 19 Kan. 159; Ex parte Spencer, 
 83 Cal. 460, 23 Pac. 395, 17 Am. St. Rep. 266. 
 This would be enforced by the courts ; Wil- 
 son v. Hinman, 182 N. Y. 40S, 75 N. E. 236, 2 
 L. R. A. (N. S.) 232, 108 Am. St. Rep. S20, 
 citing to the same effect Storey v. Storey, 
 125 111. 608, 18 N. E. 329, 1 L. R. A. 320, 8 
 Am. St. Rep. 417; followed in Whitney v. 
 Warehouse Co., 183 Fed. ,678, 106 C. C. A. 28 ; 
 if in gross it should not ordinarily exceed 
 one-half the husband's estate ; McCartin v. 
 McCartin, 37 Mo. App. 471. It must secure to 
 her as wife a maintenance separate from 
 her husband; an absolute title in specific 
 property, or a sale of a part of the husband's 
 estate for her use, cannot be decreed or con- 
 firmed to her as alimony ; 3 Hagg. Eccl. 322 ; 
 Maguire v. Maguire, 7 Dana (Ky.) 1S1 ; Wal- 
 lingsford v. Wallingsford, 6 Harr. & J. (Md.) 
 4S5; Purcell v. Purcell, 4 Hen. & M. (Va.) 
 507 ; Rogers v. Vines, 28 N. C. 293. Nor is 
 alimony regarded, in any general sense, as 
 the separate property of the wife. Hence 
 she can neither alienate nor charge it ; Ro- 
 maine v. Chauncey, 60 Hun 477, 15 N. Y. 
 Supp. 198; if she suffers it to remain in 
 arrear for more than one year, it has been 
 held that she cannot generally recover such 
 arrears ; 3 Hagg. Eccl. 322 ; if she saves any- 
 thing from her annual allowance, upon her 
 death it will go to her husband; Clark v. 
 Clark, 6 W. & S. (Pa.) 85 ; Sterling v. Ster- 
 ling, 12 Ga. 201 ; if there are any arrears at 
 the time of her death, they cannot be recov- 
 ered by her executors ; 8 Sim. 321 ; 8 Term 
 545; Clark v.. Clark, 6 W. & S. (Pa.) S5 ; as 
 the husband is only bound to support his 
 wife during his own life, her right to alimony 
 ceases with his death; Smith v. Smith, 1 
 Root (Conn.) 349; Sloan v. Cox, 4 Hayw. 
 (Tenn.) 75 ; Jamison v. Jamison, 4 Md. Ch. 
 Dec. 289; Wilson v. Hinman, 1S2 N. Y. 408, 
 75 N. E. 236, 2 L. R. A. (N. S.) 232, 108 Am. 
 St. Rep. 820 ; Wagoner v. Wagoner, 132 Mich. 
 343, 93 N. W. 889; Lockwood v. Kruin, 34 
 Ohio St. 1; Whitney v. Elevator & Ware- 
 house Co., 183 Fed. 678, 106 C. C. A. 2S ; Mar- 
 tin v. Martin, 33 W. Va. 695, 11 S. E. 12; 
 Storey v. Storey, 23 111. App. 558; Stahl v. 
 Stahl, 114 111. 375, 2 N. E. 160; Casteel v. 
 Casteel, 38 Ark. 477 ; and see Miller v. Mil- 
 ler, 64 Me. 484 ; In re Lawton, 12 R. I. 210; 
 and it ceases upon reconciliation and co- 
 habitation. The cases upon the effect of the 
 husband's death upon a decree for alimony 
 involve the question whether alimony is to 
 be considered merely as support to which 
 the wife is entitled by virtue of the marital 
 relation, or as her interest in the joint prop-
 
 ALIMONY 
 
 177 
 
 ALIMONY 
 
 erty. They are collected in a note in 2 L. R. 
 A (N. S.) 232, where it is said that they can- 
 not be satisfactorily harmonized on either 
 theory. 
 
 Its amount is. Viable at any time to be in- 
 creased or diminished at the discretion of 
 the court; 8 Sim. 315; Clark v. Clark, 6 \V. 
 & S. (Pa.) 85; and the court may insert a 
 provision in the decree allowing any inter- 
 ested party thereafter to apply, on account 
 of changed conditions, for a modification of 
 the amount allowed; Stahl v. Stahl, 59 Hun 
 621, 12 N. Y. Supp. 854. If, however, the 
 right is not reserved in the decree or given 
 by statute, the amount cannot subsequently 
 be varied in the case of absolute divorce; 
 Howell v. Howell, 104 Cal. 45, 37 Pac. 770, 
 43 Am. St. Rep. 70; Walker v. Walker, 155 
 N. Y. 77, 49 N. E. GG3 ; otherwise under a 
 decree for separation; Taylor v. Taylor, 93 
 N. C. 418, 53 Am. Rep. 4G0. And where a 
 statute authorizes the amount decreed for 
 alimony to be changed, it cannot operate 
 retrospectively, as thereby it would deprive 
 the person of property without due process 
 of law; Livingston v. Livingston, 173 N. Y. 
 377, G6 N. E. 123, 61 L. R. A. S00, 93 Am. 
 St. Rep. 600. 
 
 Equity has power to modify provisions as 
 to alimony and to retain jurisdiction over 
 such decrees. Where an agreement between 
 the parties provides for something more than 
 alimony (as where it binds the husband to 
 pay the wife a certain sum until her death, 
 irrespective of whether she survives him or 
 not, and transfers certain property to her 
 absolutely and to trustees to pay her an al- 
 lowance during her life and such agreement 
 is embodied in the divorce decree), equity 
 should not afterwards destroy the agreement 
 although the wife marries again; but three 
 judges dissented on the ground that the in- 
 sertion of such an agreement in the decree 
 was improper and that the decree should be 
 set aside, the wife retaining her rights at 
 law for the breach of the agreement ; Emer- 
 son v. Emerson, 120 Md. 5S4, S7 Atl. 1033. 
 
 The preceding observations respecting the 
 nature and incidents of alimony should be 
 received with some caution in this country, 
 where the subject is so largely regulated by 
 statute; Burr v. Burr, 10 Paige, Ch. (N. Y. ) 
 20; id., 7 Hill (N. Y.) 207. It is said that 
 alimony cannot be regarded as a debt owing 
 from a husband to wife; Barclay v. Barclay, 
 IS4 111. 375, 5G N. E. G3G, 51 L. R. A. 351 j 
 but that it is rather to be considered as a 
 penalty imposed for the failure to perform 
 a duty ; Wetmore v. Markoe, 196 U. S. 74, 
 25 Sup. Ct. 172, 49 L. Ed. 390, 2 Ann. Cas. 
 205; Roinaine v. Chauncey, 129 N. Y. 5GG, 
 29 N. E. 826, 14 L. R. A. 712, 26 Am. St. 
 Rep. 544. Nor is it a debt within the mean- 
 ing of the constitutional inhibition against 
 imprisonment for debt; State v. Cook, GO 
 Ohio St. 5GG, 64 N. E. 567, 58 L. R. A. 625. 
 Bouv.— 12 
 
 And a discharge in bankruptcy does not bar 
 the collection of arrears of alimony and the 
 allowance for the support of minor children; 
 Dunbar v. Dunbar, 190 U. S. 34 - 
 Ct. 7."7, 47 L. Ed. 1084 ; Wetmore v. Markoe, 
 196 U. S. 68, 25 Sup. Ct 172, 40 L. Ed. 
 2 Ann. Cas. 265; Deen v. Bloomer, 191 111. 
 M<;, 61 X. E. 131; and see Beach v. Beach, 
 29 Hun (N. Y.) 1S1 ; contra, Arringi 
 Arrington, 131 N. C. 143, 42 S. E. 554, 92 
 A in. St. Kep. 7G9. 
 
 The amount to be awarded depends upon 
 a great variety of considerations and is gov- 
 erned by no fixed rules; Rieketts v. Ricketts, 
 4 Gill (Md.) 105; Burr v. Burr, 7 Hill (N. 
 Y.) 207; Richmond v. Richmond. 2 N. J. Eq. 
 00; McGee v. McGee, 10 Ga. 477; Muir v. 
 Muir, 133 Ky. 325, 02 S. W. 314, 28 Ky. L. 
 Rep. 1355, 4 L. R. A. (X. S.) 909. The abili- 
 ty of the husband, however, is a circum- 
 stance of more importance than the necessi- 
 ty of the wife, especially as regards perma- 
 nent alimony ; and in estimating his ability 
 his entire income will be taken into consid- 
 eration, whether it is derived from his prop- 
 erty or his personal exertions; 3 Curt. EccL 
 3, 41 ; McCrocklin v. McCrocklin, 2 B. Monr. 
 ( Ky. ) 370 ; Bursler v. Bursler, 5 Pick. 
 (.Mass.) 427; Battey v. Battey. 1 R. I. 212; 
 Small v. Small. 28 Xeb. 813. 45 X. W. 248; 
 McGrady v. McGrady, 4S Mo. App. GGS. 
 
 Future expectations may be taken into 
 consideration; Cralle v. Cralle, 84 Ya. 198, 
 G S. E. 12; Horning v. Homing, 107 Mich. 
 5.S7, or, X. W. 555; Muir v. Muir, 133 Ky. 125, 
 92 S. W. 314, 4 L. R. A. (X. S.) 909 and 
 note. But if the wife has separate property : 
 2 Phill. 40; or derives income from her per- 
 sonal exertions, this will also be taken into 
 account. If she has sufficient menus to sup- 
 port herself in the rank of life in which she 
 moved, she is entitled to no alimony ; Stev- 
 ens v. Stevens. 49 Mich. 504, 13 X. W. 
 Miller v. Miller, 75 X. C. 70; 2 Hagg. C 
 203. The method of computation is. to add 
 the wife's annual income to her husband's ; 
 consider what, under all the circumstances, 
 should be allowed her out of the 
 then from • the sum so determined deduct 
 her separate income, and the remainder will 
 be the annual allowance to be made her. 
 There are various other circumstances, how- 
 ever, beside the husband's ability, to be tak- 
 en into consideration: as, whether the bulk 
 of the property came from the wife, or be- 
 longed originally to the husband; Fishli v. 
 Fishli, 2 Litt (Ky.) 337; Bobbins v. Bobbins, 
 101 111. 410; or was accumulated by the joint 
 exertions of both, subsequent to the mar- 
 riage; Lovett v. Lovett, 11 Ala. 763; Jeans 
 v. Jeans, 2 Harr. (Del.) 142; whether there 
 are children to be supported and educated, 
 and upon whom their support and education 
 devolves; Amos v. Amos, 4 X. J. Eq. 171; 
 Fishli v. Fishli, 2 Litt. (Ky.) 337; McGee v. 
 McGee, 10 Ga. 477; Emerson v. Emerson, GS
 
 ALIMONY 
 
 178 
 
 ALIMONY 
 
 Hun (N. Y.) 37, 22 N. Y. Supp. 684 ; Park 
 hurst v. Race, 100 111. 570; Call v. Call, 65 
 Me. 407; Halleman v. Halleman, 65 Ga. 476; 
 
 the nature and extent of the husband's de- 
 Uctum; 3 Hagg. Keel. 657; Turrel v. Turrel, 
 2 Johns. Ch. (N. Y.) 301 ; Williams v. Wil- 
 liams. 4 Dec. Eq. (S. C.) 183; Sheafe v. 
 Sheafe, 24 N. IT. 564; the demeanor and con- 
 duct of the wife towards the husband who 
 desires cohabitation; Burr v. Burr, 7 Hill 
 (X. Y.i 207; Dejarnet v. Dejarnet, 5 Dana 
 (Ky.) 499; Stewartson v. Stewartson, 15 111. 
 145; Jones v. Jones, 05 Ala. 443, 11 South. 
 11, 18 L. R. A. 05 ; the condition in life, place 
 of residence, health, and employment of the 
 husband, as demanding a larger or smaller 
 sum for his own support; 1 Hagg. Eccl. 526, 
 532; the condition in life, circumstances, 
 health, place of residence, and consequent 
 
 !. ssary expenditures of the wife; Bursler 
 
 v. Bursler, 5 Pick. (Mass.) 427; Ricketts v. 
 Ricketts, 4 Gill (Md.) 105; Lovett v. Lovett, 
 11 Ala. 703; the age of the parties; Miller 
 v. Miller, 6 Johns. Ch. (N. Y.) 91; Ricketts 
 v. Ricketts, 4 Gill (Md.) 105; Schlosser v. 
 Sehlosser, 29 Ind. 488; the ability of the 
 husband to work ; Canine v. Canine, 16 S. 
 W. 367, 13 Ky. L. Rep. 124 ; Snedager v. Kin- 
 caid, 60 S. W. 522, 22 Ky. L. Rep. 1347; 
 Furth v. Furth (N. J.) 30 Atl. 12S; and 
 whatever other circumstances may address 
 themselves to a sound judicial discretion. 
 • So far as any general rule can be deduced 
 from the decisions and practice of the courts, 
 the proportion of the joint income to be 
 awarded for permanent alimony is said to 
 range from one-half, where the property 
 came from the wife (2 Phill. 235), to one- 
 third, which is the usual amount ; 29 L. J. 
 Mat. Cas. 150; Ricketts v. Ricketts, 4 Gill 
 (Md.) 105; Forrest v. Forrest, 8 Bosw. (N. 
 Y.) 640; Musselman v. Musselman, 44 Ind. 
 106; Turner v. Turner, 44 Ala. 437; or 
 even less ; Draper v. Draper, G8 111. 17 ; 
 Garner v. Garner, 38 Ind. 139. In case 
 of alimony pendente lite, it is not usual to 
 allow more than about one-fifth, after de- 
 ducting the wife's separate income ; 2 Bish. 
 Mar. Div. & Sep. § 945 ; and generally a less 
 proportion will be allowed out of a large es- 
 tate than a small one; for, though no such 
 rale exists in respect to permanent alimony, 
 there may be good reasons for giving less 
 where the question is on alimony during the 
 suit; when the wife should live in seclusion, 
 and needs only a comfortable subsistence; 
 2 Phill. Eccl. 40. See Llamosas v. Llamosas, 
 4 Thomp. & C. (N. Y.) 574; Briggs v. Briggs, 
 36 la. 383; Harrell v. Harrell, 39 Ind. 185; 
 Williams v. Williams, 29 Wis. 517. 
 
 Courts will take judicial notice that' it is 
 not infrequent in divorce proceedings for 
 parties to agree on details of alimony; 
 Whitney v. Warehouse Co., 183 Fed. 678, 106 
 C. C. A. 28. 
 
 An action upon a decree for alimony may 
 
 be maintained in a court of another state 
 where the amount is fixed and presently due 
 and enforceable, but not when payable in 
 future instalments; Hunt v. Monroe, 32 
 Utah, 428, 91 Pac. 269, 11 L. R. A. (N. S.) 
 249, where the cases are critically reviewed ; 
 Page v. Page, 180 Mass. 85, 75 N. E. 92, 4 
 Ann. Cas. 206 ; contra, where there is power 
 to change the decree for payments; Mayer 
 v. Mayer, 154 Mich. 386, 117 N. W. 890, 19 
 L. R. A. (N. S.) 245, 129 Am. St. Rep. 477. 
 Generally speaking, when a decree is ren- 
 dered for alimony payable in instalments, 
 the right to such instalments becomes abso- 
 lute and vested upon becoming due and is 
 protected by the full faith and credit clause 
 of the United States constitution, provided, 
 that no modification of the decree has been 
 made prior to the maturity of the instal- 
 ments. This general rule does not obtain 
 where, by the law of the state in which such 
 judgment is rendered, the right to such fu- 
 ture alimony is discretionary with the court 
 which made the decree, to such an extent 
 that no absolute or vested right attaches to 
 receive the instalments ordered to be paid ; 
 even although no application to annul or 
 modify the decree in respect to alimony had 
 been made prior to the instalments becoming 
 due; Sistare v. Sistare, 218 U. S. 1, 30 Sup. 
 Ct. 682, 54 L. Ed. 905, 28 L. R. A. (N. S.) 
 1068, 20 Ann. Cas. 1061. 
 
 Though an action on a decree for alimony 
 rendered in one state may be maintained in 
 another state if the amount payable is fixed 
 and presently due, yet a decree for alimony 
 becoming due in the future and payable in 
 instalments is not a final decree enforceable 
 in another state, within the full faith and 
 credit clause, until the court which rendered 
 it fixes the specific amount due ; Hunt v. 
 Monroe, 32 Utah, 428, 91 Pac. 269, 11 L. R. 
 A. (N. S.) 249; Israel v. Israel, 148 Fed. 
 576, 79 C. C. A. 32, 9 L. R. A. (N. S.) 1168, 
 8 Ann. Cas. 697. 
 
 Although judgments are, by statute, liens 
 on the defendant's real estate, a decree for 
 alimony payable by instalments does not 
 create a lien unless the record affirmatively 
 shows that the court so intended ; Scott v. 
 Scott, 80 Kan. 489, 103 Pac. 1005, 25 L. R. A. 
 (N. S.) 132, 133 Am. St. Rep. 217, 18 Ann. 
 Cas. 564, and note. It is held that a decree 
 for alimony in gross operates as a lien on the 
 husband's lands; Holmes v. Holmes, 29 N. 
 J. Eq. 9 ; Coffman v. Finney, 65 Ohio St. 61, 
 61 N. E. 155, 55 L. R. A. 794 ; so of a month- 
 ly allowance; Raymond v. Blancgrass, 36 
 Mont. 449, 93 Pac. 648, 15 L. R. A. (N. S.) 
 976 ; but it is held that in the absence of a 
 statute there is no lien ; Kerr v. Kerr, 216 
 Pa. 641, 66 Atl. 107, 9 Ann. Cas. 89 ; Swansen 
 v. Swansen, 12 Neb. 210, 10 N. W. 713; 
 Kurtz v. Kurtz, 38 Ark. 119 ; In re Lawton, 
 12 R. I. 210; Campbell v. Trosper, 108 Ky. 
 602, 57 S. W. 245. A New York decree di-
 
 ALIMoNY 
 
 179 
 
 ALLEGATA ET PR< »BATA 
 
 recti ag the husband to mortgage his New 
 Jersey lands to secure alimony will not be 
 enforced in New Jersey; Bullock v. Bullock, 
 52 N. J. Eq. 501, 30 Atl. 670, 27 L. R. A. 213, 
 46 Am. St. Rep. 528. 
 
 Alimony, suit money and counsel fees can- 
 not be allowed to the husband : state v. Tem- 
 pleton, 18 N. D. 525, 123 N. W. 283, 25 L. R. 
 A. (N. S.) 234; Hoagland v. Hoagland, 19 
 Utah 103, 57 Pac. 20. Some allowance was 
 made in Casey v. Casey, 116 la. 655, 88 N. 
 W. '»::7, ant 5 Quebec Pr. Rep. 137, under 
 peculiar circumstances. 
 
 For an outside agreement for support of 
 wife, not made pail of a decree, set; Dunbar 
 v. Dunbar, 190 U. S. 340, 23 Sup. Ct. 757, 47 
 L. Ed. 10S4. 
 
 See notes in 34 L. R. A. 110, and 25 L. R. 
 A. (N. S.) 234. 
 
 ALIO INTUITU. Under a different as- 
 pect; with respect to another case or condi- 
 tion. 6 M. & S. 231. See Diverso Intuitu. 
 
 ALITER (Lat). Otherwise; as otherwise 
 held or decided. 
 
 ALIUNDE (Lat.). From another place. 
 Evidence aliunde (i. e. from without the 
 will) may be received to explain an ambigui- 
 ty in a will. 1 Greenl. Ev. § 291. The word 
 is also used in the same sense with respect 
 to the admission of evidence to modify or 
 explain other documents, generally treated 
 as conclusive. 
 
 ALL. Completely, wholly, the whole 
 amount, quantity or number. 
 
 It is frequently used in the sense of "each" 
 or "every one of ;" Sherburne v. Sischo, 143 
 Mass. 442, 9 N. E. 797 ; Towle v. Delano, 144 
 Mass. 100, 10 N. E. 769; 54 L. J. Q. B. 539; 
 and is a general rather than a universal 
 term, to be understood in one sense or the 
 other according to the demands of sound rea- 
 son ; Kieffer v. Elder, IS Pa. 391 ; 9 Ves. Jr. 
 137. As to its use in a will, see Devise. 
 
 ALL AND SINGULAR. All without ex- 
 ceptions 
 
 ALL FAULTS. A term in common use in 
 the trade. A sale of goods with "all faults," 
 in the absence of fraud on the part of the 
 vendor, covers all such faults and defects as 
 are not inconsistent with the identity of the 
 goods as the goods described; Whitney v. 
 Boardman, US Mass. 242; 5 B. & Aid. 210. 
 
 ALL FOURS. A metaphorical expression, 
 signifying that a case agrees in all its cir- 
 cumstances with another. 
 
 ALLEGATA. A word which the emperors 
 formerly signed at the bottom of their re- 
 scripts and constitutions; under other instru- 
 ments they usually wrote signata or testata. 
 Eneyc. Lond. 
 
 ALLEGATA ET PROBATA (Lat. things 
 alleged and proved). The allegations made 
 
 by a party to a suit, and the proof a< d 
 
 in their support. 
 
 It is a genera] rule of evidence 
 allegata and probata must corres] 
 is, the proof must at least lie suffi< 
 tensive to cover all the alleg of the 
 
 party which are material; 1 Greenl. Ev. 5 
 51; The Sarah Ann. 1' Sumn. - 
 No. 12.:: !i'; White v. Noland, 3 Mart. N. S. 
 (La.) <;::(;; Boone v. Chiles, 10 Pet. (1 
 177, 9 L. Ed. 388. 
 
 ALLEGATION. The assertion, declara- 
 tion, or statement of a party of what b 
 prove. 
 
 In Ecclesiastical Law. The statement of 
 the facts intended to be relied on in support 
 of a contested suit. 
 
 It is applied either to the libel, or to the answer 
 of the respondent setting forth new facts, the latter 
 being, however, generally called the defensive alle- 
 gation. See 1 Browne, Civ. Law, 472, 473, n. 
 
 ALLEGATION OF FACULTIES. A state 
 ment made by the wife of the property of her 
 husband, for the purpose of obtaining ali- 
 mony. Lovett v. Lovett, 11 Ala. 763; Wright 
 v. Wright, 3 Tex. 108. 
 
 To such an allegation the husband makes 
 answer, upon which the amount of alimony 
 is determined; 2 Lee, EccL 593; 3 PhilL 
 Eccl. 387; or she may produce other proof, 
 if necessary in consequence of his failure to 
 make a full and complete disclosure; 2 Bagg. 
 Cons. 199; 2 Bish. M. & Div. § 10S2. 
 
 ALLEGIANCE. The tie which binds the 
 citizen to the government, in return for the 
 protection which the government affords 
 him. The duty which the subject owes to 
 the sovereign, correlative with the protec- 
 tion received. 
 
 It is a comparatively modern corruption of 
 ligeance (ligcantia) , which is derived from 
 liege (ligius), meaning absolute or unquali- 
 fied. It signified originally lie?:e fealty, i. e. 
 absolute and unqualified fealty. 18 L. Q. 
 Rev. 47. 
 
 Acquired allegiance is that bindiii'_ r a citi- 
 zen who was born an alien, but has been 
 naturalized. 
 
 Locator actual allegiance is that which is 
 due from an alien while resident in a coun- 
 try in return for the protection afforded by 
 the government. From this are exc 
 foreign sovereigns and their representatives, 
 naval and armed forces when permitted to 
 remain in or pass through the country or its 
 waters. 
 
 Natural allegiance is that which results 
 from the birth of a person within the terri- 
 tory ami under the obedience of the govern- 
 ment. 2 Kent 42. 
 
 Allegiance may lie an absolute and perma- 
 nent obligation, or it may be a qualified and 
 temporary one; the citizen or subject owes 
 the former to his government or sovereign, 
 until by some act be distinctly renoun 
 whilst the alien domiciled in the country
 
 ALLEGIANCE 
 
 180 
 
 ALLISION 
 
 owes a temporary and local allegiance con- 
 tinuing during such residence; Carlisle v. 
 U. S., 16 Wall. (U. S.) 154, 21 L. Ed. 426. 
 
 At common law, in England and America, 
 natural allegiance could not be renounced 
 except by permission of the government to 
 which it was due; 1 Bla. Com. 370, 371; 1 
 East, PL Cr. 81 ; Inglis v. Sailors Snug Har- 
 bor, 3 Pet. (U. S.) 99, 7 L. Ed. 617; Shanks 
 v. Dupont, 3 Pet. (U. S.) 242, 7 L. Ed. 666; 
 but see 8 Op. Att.-Gen. TJ. S. 139; 9 id. 356. 
 Held to be the law of Great Britain in 1S6S; 
 Cockb. Nationality. After* many negotiations 
 between the two countries, the rule has been 
 changed in the United States by act of July 
 27, 1S6S. and in England by act of May 14, 
 1870. Whether natural allegiance revives 
 upon the return of the citizen to the country 
 of his allegiance is an open question ; Whart. 
 Confl. L. § 6. See Cockb. Nationality; Web- 
 ster, Citizenship; Webster, Naturalization; 
 2 Whart. Int. L. Dig. ch. vii. ; Whart. Confl. 
 L. ; Lawrence's Wheat. Int. L. App. It 
 is said to be due to the inng in his politi- 
 cal, not his personal, capacity; L. R. 17 
 Q B. D. 54, quoted in U. S. v. Wong Kim 
 Ark, 109 U. S. 663, 18 Sup. Ct. 456, 42 L. Ed. 
 S90 ; and so in this country "it is a political 
 obligation" depending not on ownership of 
 land, but on the enjoyment of the protection 
 of government ; Wallace v. Harmstad, 44 Pa. 
 492 ; and it "binds the citizen to the observ- 
 ance of all laws" of his own sovereign; 
 Adams v. People, 1 N. Y. 173. See Alien; 
 Naturalization ; Expatriation. 
 
 ALLEGING DIMINUTION. See Diminu- 
 tion of the Record. 
 
 ALLEVIARE. To levy or pay an accus- 
 tomed fine. Cowell. 
 ALLEY. See Street. 
 
 ALLIANCE. The union or connection of 
 two persons or families by marriage; affin- 
 ity. 
 
 In International Law. A contract, treaty, 
 or league between two or more sovereigns or 
 states, made for purposes of aggression or 
 defence. 
 
 Defensive alliances are those in which a 
 nation agrees to defend her ally in case the 
 latter is attacked. 
 
 Offensive alliances are those in which na- 
 tions unite for the purpose of making an at- 
 tack, or jointly waging the war against an- 
 other nation. 
 
 The term is also used in a wider sense, 
 embracing unions for objects of common in- 
 terest to the contracting parties, as the 
 "Holy Alliance" entered into in 1S15 by 
 Prussia, Austria and Russia for the purpose 
 of counteracting the revolutionary movement 
 in the interest of political liberalism. 
 
 ALLISION. Running one vessel against 
 another. 
 
 To be distinguished from collision, which denotes 
 the running of two vessels against each other. 
 
 The distinction Is not very carefully ohserved, but 
 collision Is used to denote cases strictly of allision. 
 
 ALL0CATI0 NE FACIENDA. In English 
 Law. A writ directed to the lord treasurer 
 and barons of the exchequer, commanding 
 that an allowance be made to an accountant 
 for such moneys as he has lawfully expended 
 in his office. 
 
 ALLOCATION. An allowance upon an ac- 
 count in the English Exchequer. Cowell. 
 Placing or adding to a thing. Encyc. Loud. 
 
 ALL0CAT0 COMITATU. A new writ of 
 exigent, allowed before any other county 
 court, issued on the former not being fully 
 served or complied with. Fitz. Exigent 14. 
 
 ALLOCATUR (Lat, it is allowed). 
 
 A Latin word formerly used to denote that 
 a writ or order was allowed. See State v. 
 Vanderveer, 7 N. J. L. 38. 
 
 A word denoting the allowance by a mas- 
 ter or prothonotary of a bill referred for his 
 consideration, whether touching costs, dam- 
 ages, or matter of account. Lee, Diet,; 
 Archb. Pr. 129. 
 
 Where an appeal can be taken only by 
 permission of the court, it is said to be by 
 special allocatur. 
 
 ALLOCATUR EXIGENT. A writ of exi- 
 gent which issued in a process of outlawry, 
 upon the sheriff's making return to the orig- 
 inal exigent that there were not five county 
 courts held between the teste of the original 
 writ and the return day. 1 Tidd, Pr. 128. 
 
 ALLOCUTION. The formal address of 
 the judge to the prisoner, asking him if he 
 has anything to say why sentence should 
 not be pronounced against him. 
 
 In case of conviction of an offence not cap- 
 ital the omission is not fatal and the judg- 
 ment will not be reversed therefor; State v. 
 Ball, 27 Mo. 324. 
 
 In England it was held error, "for it is a 
 necessary question, because he may have a 
 pardon to plead, or may move in arrest of 
 judgment," and for that reason the attainder 
 was reversed; 3 Salk. 35S ; 2 id. 630. But 
 in this country it is not material "whether a 
 pardon was produced before or after judg- 
 ment, as no attainder or other such conse- 
 quences result from a capital conviction here, 
 which a pardon may not remove" ; State v. 
 Ball, 27 Mo. 324. Form of entry was: "And 
 thereupon it is forthwith demanded of the 
 said J. S., if he hath or knoweth anything to 
 say why the said justices here ought not 
 upon the premises and verdict aforesaid to 
 proceed to judgment against him; who noth- 
 ing further saith, unless as he had before 
 said. Whereupon," etc. Arch. Cr. PI. & Pr. 
 (23d ed.) 226. 
 
 ALLODIAL. Held in alodum. See Alod, 
 where the more recent understanding of tho 
 meaning and the accepted spelling of these 
 words are found.
 
 ALLONGE 
 
 181 
 
 ALLOW 
 
 
 ALLONGE (Fr.). A piece of paper an- 
 nexed to a bill of exchange or promissory 
 note, on which to write endorsements for 
 which there is no room on the instrument 
 itself. Pardessus, n. 343; Story, Prom. 
 Notes, §§ 121, 151; Tied, on Com. Paper 264. 
 See Indorsement. 
 
 ALLOTMENT. A share or portion; that 
 which is allotted. 
 
 The division or distribution of land. 
 
 Allotment System. A system in England 
 of assigning small portions of land, from the 
 eighth of an acre to four or five acres, to be 
 cultivated by day-laborers after their ordi- 
 nary day's work. Brande. 
 
 Allotment Certificate. A document issued 
 to an applicant for shares in a company or 
 public loan announcing the number of shares 
 allotted or assigned and the amounts and due 
 dates of the calls or different payments to 
 be made on the same. Where a letter with- 
 drawing an application for shares was re- 
 ceived after the shares had been allotted, but 
 before the notice of allotment was mailed, 
 the applicant was held entitled to have his 
 name removed from the register of share- 
 holders and to have the deposit returned; 81 
 L. T. R. 512. See Shareholder. 
 
 To constitute a public allotment of shares 
 there must be an issue to persons other than 
 those taking shares in payment of wares or 
 for work done, or as a qualification for a 
 seat on the board; 19 T. L. R. 614. 
 
 An allotment of shares is an appropriation 
 by the directors of a company of shares to a 
 particular person, but it does not necessarily 
 create the status of membership; 80 L. T. 
 347. 
 
 ALLOTMENT NOTE. "A writing by a 
 seaman, whereby he makes an assignment of 
 part of his wages in favor of his wife, father 
 or mother, grandfather or grandmother, 
 brother or sister. Every allotment note 
 must be in a form sanctioned by the Board 
 of Trade. The allottee, that is the person in 
 whose favor it is made, may recover the 
 amount before justices of the peace." Moz. 
 & Wh. 
 
 ALLOW. To sanction, either directly or 
 indirectly ; as opposed to merely suffering a 
 thing to be done. [1S04] 2 Q. B. 412. A 
 claim is said to be alio iced by a court. 
 
 To permit; Kearns v. Kearns, 107 Pa. 575; 
 Doty v. Lawson, 14 Fed. 692; 3 1 1. & C. 75; 
 to yield; Doty v. Lawson, 14 Fed. S92; to 
 suffer, to tolerate; Gregory v. U. S., 17 
 Blatchf. 325, Fed. Cas. No. 5.S03; to fix; 
 Hinds v. Marmolejo, 60 Cal. 229 ; to substi- 
 tute by way of compensation something for 
 another; Glenn v. Glenn, 41 Ala. 571. I al- 
 low to give is equivalent to I intend to give; 
 Harmon v. James, 7 Ind. 263; Hunter v. 
 Stembridge, 12 Ga. 192 ; it is used as a 
 synonym of intent by unlearned persons in 
 wills; id.; it is also used as an equivalent of 
 
 I will; Ramsey v. Ilanlon, 33 Fed. 425 In 
 the National Banking Act, providiiu 
 terest may be taken at a rate "allowed by 
 the laws of the state or territory," it d 
 fixed; Hinds v. Marmolejo, CO Cal. 229. 
 
 ALLOWANCE. A definite sum or quanti- 
 ty set apart or granted. The share or por- 
 tion given to a married woman, child, trus- 
 tee, etc. Smith v. Smith, 45 Ala. 264. It is 
 said to include what is awarded to a 1 1 
 for expenses, etc.. In addition to his legal 
 fees; Downing v. Marshall, 37 N. Y. :: 
 a perquisite to an ollicer in addition to his 
 salary, as for room, fire or light; 14 <j. 1'.. 
 I). 7:;5; 23 id. 66, 531. The term is ordina- 
 rily only another name for a gift or gratuity 
 to a child or other dependent; Taylor v. 
 Staples, 8 R. I. 170, 5 Am. Rep. 556. 
 
 The term is not properly used to express 
 contractual relation or regular compensation, 
 but applies rather to the case of voluntary 
 action in favor of dependents, servants or 
 the poor; Mangam v. City of Brooklyn, 98 
 N. Y. 5S5, 50 Am. Rep. 705, where the mean- 
 ing of the word is discussed critically and at 
 length. It has been used in a judge's cer- 
 tificate as the equivalent of settlement: At- 
 chison, T. & S. F. R. Co. v. Cone, 37 Kan. 
 567, 15 Pac. 499; or to express the approval 
 of the court; Gildart's Heirs v. Starke, 1 
 How. (Miss.) 450. 
 
 ALLUVI0 MARIS (Let). Soil formed by 
 the washing-up of earth from the sea. 
 Schultes, Aq. Rights 138. 
 
 ALLUVION. That increase of the earth 
 on a bank of a river, or on the shore of the 
 sea, by the force of the water, as by a cur- 
 rent or by waves, or from its recession in a 
 navigable lake, which is so gradual that no 
 one can judge how much is added at each 
 moment of time. Inst. 1. 2, t. 1, § 20; 3 B. & 
 C. 91; Ang. Watercourses 53; Trustees of 
 Hopkins Academy v. Dickinson, 9 Cush. 
 (Mass.) 551; Lovingston v. St. Clair County, 
 64 111. 58, 16 Am. Rep. 516; Gould, Waters 
 § 155. 
 
 Conversely, where land is submerged by 
 the gradual advance of the sea, the sover- 
 eign acquires the title to the part thereby 
 covered and it ceases to belong to the for- 
 mer owner; Wilson v. Shiveley, 11 Or. 217, 
 4 Pac. 324; 5 Mees & W. ::l>7. 4 C. P. D. 438 ; 
 Trustees, etc., of Town of East Hampton v. 
 Kirk. 84 N. Y. 218, 3S Am. Rep. 505. 
 
 The proprietor of the bank increased by 
 alluvion is entitled to the addition, this be- 
 ing regarded as the equivalent for the loss 
 he may sustain from the encroachment of 
 the waters upon his land; Chapman v. Hos- 
 kiiis, 2 Md. Ch. Dec. 4ST>\ Ingraham v. Wilk- 
 inson, 4 Pick. (Mass.) 273, 10 Am. Dec. :;I2: 
 Murry v. Sermon, 8 N. C. 56; Lamb v. Rick- 
 ets, 11 Ohio, 311 : Municipality No. 2 v. Cot- 
 ton Press. IS La. 122, 36 Am. Dec. (i24; Iland- 
 ly v. Anthony, 5 Wheat (U. S.) 3S0, 5 L. Ed.
 
 ALLUVION 
 
 182 
 
 ALLUVION 
 
 113; Gerrish v. Clough, 48 N. H. 9, 97 Am. | 
 Dec. 531, 2 Am. Rep. 165; Lovingston v. | 
 County of St. Clair, 64 111. 56, 16 Am. Rep. 
 516; Niehaus v. Shepherd, 26 Ohio St 40; 
 Cook v. McClure. 58 N. Y. 437, 17 Am. Rep. 
 270; Kraut v. Crawford, 18 la. 549, S7 Am. 
 Dec. 114; Jefferis v. Land Co.. 134 U. S. 17S, 
 10 Sup. Ct 51S, 33 L. Ed. 872; Freeland v. 
 R. R. Co., 197 Pa. 529, 47 All. 715, 58 L. R. 
 A. 20G, SO Am. St. Rep. S50; Rut'/ v. Seeger, 
 35 Fed. 18S; Goodsell v. Lawson, 42 Md. 348. 
 Tim increase is to he divided among riparian 
 proprietors by the following rule: measure 
 tke whole extent of their ancient line on the 
 river, and ascertain how many feet each 
 proprietor owned on this line; divide the 
 newly-formed river-line into equal parts, and 
 appropriate to each proprietor as many of 
 these parts as he owned feet on the old line, 
 and then draw lines from the points at 
 which the proprietors respectively bounded 
 on the old to the points thus determined as 
 the points of division on the newly-formed 
 shore. In applying this rule, allowance 
 must be made for projections and indenta- 
 tions in the old line; Inhabitants of Deer- 
 field v. Pling Arms, 17 Pick. (Mass.) 41, 28 
 Am. Dec. 276; Emerson v. Taylor, 9 Greenl. 
 (Me.) 44, 23 Am. Dec. 531; Batchelder v. Ken- 
 iston, 51 N. H. 496, 12 Am. Rep. 143; Wood- 
 bury v. Short, 17 Vt. 387, 44 Am. Dec. 344; 
 see Clark v. Campau, 19 Mich. 325; John- 
 ston v. Jones, 1 Black. (U. S.) 209, 17 L. Ed. 
 117 ; Kehr v. Snyder, 114 111. 313, 2 N. E. 68, 
 55 Am. Rep. 806. Where the increase is in- 
 stantaneous, it belongs to the sovereign, up- 
 on the ground that it was a part of the bed 
 of the river of which he was proprietor; 
 Hagen v. Campbell, 8 Port. (Ala.) 9, 33 Am. 
 Dec. 267; 2 Bla. Com. 269; tne character of 
 alluvion depends upon the addition being 
 imperceptible; 3 B. & C. 91 ; County of St. 
 Clair v. Lovingston, 23 Wall. (U. S.) 46, 23 L. 
 Ed. 59 ; Municipality No. 2 v. Cotton Press, 
 
 15 La. 122, 36 Am. Dec. 624. 
 
 Sea-weed thrown upon a beach, as par- 
 taking of the nature of alluvion, belongs to 
 the owner of the beach; Phillips v. Rhodes, 
 7 Mete. (Mass.) 322; Emans v. Turnbull, 2 
 Johns. (N. Y.) 322, 3 Am. Dec. 427; 3 B. & 
 Ad. 967; Mather v. Chapman, 40 Conn. 382, 
 10 Am. Rep. 46; Clement v. Burns, 43 N. H. 
 609; Trustees of East Hampton v. Kirk, 68 
 X. Y. 459 ; id., 84 X. Y. 215, 38 Am. Rep. 505. 
 But sea-weed below low-water mark on the 
 bed of a navigable river belongs to the pub- 
 lic ; Chapman v. Kimball, 9 Conn. 38, 21 Am. 
 Dec. 707; Mather v. Chapman, 40 Conn. 382, 
 
 16 Am. Rep. 46; Nudd v. Hobbs, 17 N. H. 
 f>27; Peck v. Lock wood, 5 Day (Conn.) 22. 
 
 The doctrine as to alluvion is equally ap- 
 plicable to tide-waters, non-tidal rivers and 
 lakes; Gould, Waters § 155; Barney v. Keo- 
 kuk, 94 U. S. 324, 24 L. Ed. 224 ; County of 
 St. Clair v. Lovingston, 23 Wall. (U. S.) 46, 
 23 L. Ed. 59; Lovingston v. County, 64 111. 
 56, 16 Am. Rep. 516; Benson v. Morrow, 61 
 
 Mo. 345; Ridgway v. Ludlow, 5S Ind. 24S; 
 4 C. T. D. 438; 7 II. & N. 151. 
 
 Alluvion differs from avulsion in this, that 
 the latter is sudden and perceptible ; County 
 of St. Clair v. Lovingston, 23 Wall. (U. S.) 
 46, 23 L. Ed. 59. See Avulsion. And see 2 
 Ld. Raym. 7."J7 ; Cooper, Inst. 1. 2, t. 1 ; Ang. 
 Waterc. § 53; Phill. Int. Law 255; Ang. Tide 
 Waters 249; Inst. 2. 1. 20; Dig. 41. 1. 7; 
 id. 39. 2. 9 ; id, 6. 1. 23 ; id. 41. 1. 5. For an 
 interesting English case involving the jus 
 alluvion, see address of M. Crackanthorpe 
 before Am. Bar Assn. Report 1S96. See 
 Accretion ; Riparian Proprietors. 
 
 ALLY. A nation which has entered into 
 an alliance with another nation. 1 Kent 69. 
 
 A citizen or subject of one of two or more 
 allied nations. 4 C. Rob. Adm. 251; 6 id. 
 205; Miller v. The Resolution, 2 Dall. (U. S.) 
 15, 1 L. Ed. 263; Dane, Abr. Index. 
 
 ALMANAC. A book or table containing a 
 calendar of days, weeks, and months, to 
 which various statistics are often added, 
 such as the times of the rising and setting 
 of the sun and moon, etc. Whewell. 
 
 The court will take judicial notice of an 
 almanac; 3 Bla. Com. 333; State v. Morris, 
 47 Conn. 179 ; Munshower v. State, 55 Md. 
 11, 39 Am. Rep. 414; Reed v. Wilson, 41 N. 
 J. L. 29 ; People v. Chee Kee, 61 Cal. 404. 
 
 ALMA R! A. The archives, or, as they are 
 sometimes styled, muniments of a church or 
 
 library. 
 
 ALMOIN. Alms. See Frankalmoin. 
 
 ALMONER. One charged with the dis- 
 tribution of alms. The office was first in- 
 stituted in religious houses and although for- 
 merly one of importance is now in England 
 almost a sinecure. See Lord High Almoner. 
 
 ALMS. Any species of relief bestowed up- 
 on the poor. 
 
 That which is given by public authority 
 for the relief of the poor. Shelf. Mortm. 
 802, note (X); Hayw. Elect. 263; 1 Dougl. 
 El. Cas. 370; 2 id. 107. As to its meaning 
 historically, see 1 Poll. & Maitl. 219. 
 
 ALMS FEE. Peter's pence, which see. 
 
 ALMSHOUSE. A house for the publicly 
 supported paupers of a city or county. Peo- 
 ple v. City of New York, 36 Hun (N. Y.) 311. 
 In England an almshouse is not synonymous 
 with a workhouse or poorhouse, being sup- 
 ported by private endowment. 
 
 ALNAGER (spelled also Ulnager) . A 
 public sworn officer of the king, who, by 
 himself or his deputy, looks to the assize of 
 woollen cloth made throughout the land, and 
 to the putting on the seals for that purpose 
 ordained. Statute 17 Ric. II. c. 2; Cowell ; 
 Blount; Terines de la Ley. 
 
 AL0D, ALODIUM. It is a term used in 
 opposition to feodum or fief, which means 
 property, the use of which was bestowed up-
 
 ALOD, ALODll M 
 
 183 
 
 ALODIAKII 
 
 on another by the proprietor, on condition 
 that the grantee should perform certain serv- 
 ices for the grantor, and upon the failure of 
 which the property should revert to the orig- 
 inal possess ir. See l PolL & Maitl. 45. 
 
 A kind of tenure in England, not infre- 
 quently mentioned In Domesday Book. It is 
 a French term and, in Continental law, is op- 
 posed to feudum. But no such opposition can 
 he traced in the English common law after 
 the Conquest. All ownership of hind In Eng- 
 land resolved itself Into tenure, derived from 
 a royal grant in consideration of service. 
 There was no independent property in Eng- 
 lish feudal law like the dominium of Roman 
 law, or like the alien of Southern Prance. 
 Vinogradoff, Engl. Soc. in Eleventh Cent. 2:;o. 
 Maitland (Domesday Book and Beyond 154) 
 takes the same view: "Such sparse evidence 
 as we can obtain from Normandy strengthens 
 our belief that the wide, the almost insup- 
 erable gulf that modern theorists have found 
 or set between 'alodial ownership' and 'feud- 
 al tenure' was not perceptible in the 11th 
 ( !entury." 
 
 These writers express the result of modern 
 research on alod in early English institu- 
 tions. But a different meaning has been 
 given it from Coke down to recent times 
 and, in that sense, has become fixed, as a 
 mode of expression, in our law. This will 
 appear from the following (from the last 
 edition of this work): 
 
 An estate held by absolute ownership, 
 without recognizing any superior to whom 
 any duty is due on account thereof. 1 
 Washb. R. P. (5th ed.) *16. 
 
 In the 1 United States the title to land is 
 essentially allodial, and every tenant in fee- 
 simple has an absolute^ and unqualified do- 
 minion over it; yet in technical language his 
 estate is said to be in fee, a word which im- 
 plies a feudal relation, although such a re- 
 lation has ceased to exist in any form, while 
 in several of the states the lands have been 
 declared to be allodial ; Wallace v. Harin- 
 Stad, 44 Pa. 402; Matthews v. Ward, 10 Gill 
 & J. (Md.) 443: but see Com. v. Alger, 7 
 Cush. (Mass.) 02; 2 Sharsw. Bla. Com. 77, n. ; 
 1 Washb. R. P. (5th ed.) *41, *42 ; Sharsw. 
 Lect. on Feudal Law (1N70). In some states, 
 the statutes have declared lands to be al- 
 lodial. See also Barker v. Dayton, 28 Wis. 
 367. 
 
 In England there is no allodial tenure, for 
 nil land is held mediately or immediately of 
 the king; but the words tenancy in fee-sim- 
 ple are there properly used to express the 
 most absolute dominion which a man can 
 have over his property ; 3 Kent Com. *487 ; 
 Cruise, Trelim. Dis. c. 1, § 13; 2 Bla. Com. 
 105. 
 
 ALOOIAN. Sometimes used for alodial, 
 but not well authorized. Cowell. 
 
 ALODIARII. Those who own alodial 
 lands. Those who have as large an estate 
 
 as a subject can have. Co. Lift.; Bac. 
 
 Tenure A. But see Alod. 
 
 ALONE. Apart from others; singly; 
 Salem Capital Flour Mills Co. v. V. 
 Ditch & Canal Co., 33 Fed. 154. 
 
 ALONG. By, on, up to or over, according 
 to the subject-matter and context Church 
 v. Meeker, 34 Conn. 425; Walton v. B 
 67 Mo. 58; 1 B. & Ad. 4. lis; Benton v. Hors- 
 ley, 71 Ga. 619; Stevens v. K. Co., 34 N. J. 
 L. 532, :; Am. Rep. 269; id., 21 N. J. Eq. 259; 
 but not necessarily touching at all points; 
 Com. v. Franklin, 133 Mass. 569. 
 
 ALSO. The word imports no more than 
 "item" and may mean the same as "more- 
 over"; but not the same as "in like manner"; 
 Evans v. Knorr, 4 Rawle (Pa.) (IS. It may be 
 (1) the beginning of an entirely different 
 sentence, or (2) a copulative carrying on the 
 sense of the immediately preceding words in- 
 to those immediately succeeding. Stroud, 
 Jud. Diet., citing 1 Jarm. 497 n.; 1 Salk. 239. 
 
 ALT A PROD IT 10. High treason. 
 
 ALT A VIA. The highway. 
 
 ALTARAGE. Offerings made on the 
 altar; all profits which accrue to the priest 
 by means of the altar. Ayliffe, Par. 01. 
 
 ALTERATION. A change in the terms of 
 a contract or other written instrument by a 
 party entitled under it, without the consent 
 of the other party, by which its meaning or 
 
 language is changed. 
 
 The term is properly applied to the change in the 
 language of instruments, and is not used of changes 
 in the contract itself. And it is in strictness to be 
 distinguished from the act of a stranger in chang- 
 ing the form or language of the Instrument, 
 is called a spoliation. This Jatter distinction is n^t 
 always observed in practice, however. 
 
 Also sometimes applied to a change made In a 
 written instrument, by agreement of the parties ; 
 but this use of the word is rather colloquial than 
 technical. Such an alteration becomes a new agree- 
 ment, superseding the original one ; Leake, Cont. 
 430. 
 
 An alteration avoids the instrument; 11 
 Coke 27 ; 5 C. B. 1S1 ; Eewis v. Payn, S Cow. 
 (N. Y.) 71, 18 Am. Dec. 427; Wright v. 
 Wright, 7 N. J. L. 175. 11 Am. Dec. 546; 
 Wegner v. State, 28 Tex. App. H9, 13 S. V. '. 
 COS; Palmer v. Poor, 121 Ind. 135, 22 N. E. 
 9S4, 6 L. R. A. 469; but not. it seems, if the 
 alteration be not material; Bowers v. Jewell, 
 
 2 N. H. 543; Nichols v. Johnson. 10 Conn. 
 102; Smith v. Crooker, 5 Mass. 540; Lang- 
 don v. Paul, 20 Vt. 217: Huntington v. Finch, 
 
 3 Ohio St. 445; Palmer v. I.argeiit. 5 Neb. 
 22::, 25 Am. Rep. 4T'.>: Oliver v. llawley, ," 
 Neb. 139; Morrill v. Otis, 12 N. 11. 466; King 
 v. Rea, 13 Colo. 69, 21 Pac, 1084; Harper v. 
 Reaves, 132 Ala. 625, 32 South. 721 (a deed) ; 
 Warder. l'.ushnell & Glessner Co. v. Stewart. 
 2 Marv. (Del.) 275, 36 Atl. SS ; Crowe v. 
 Beem, 36 Ind. App. 207, 75 X. E. 302. The 
 insertion of such words as the law supplies 
 is said to be not material; Granite Ry. Co. v.
 
 ALTERATION 
 
 184 
 
 ALTERATION 
 
 Bacon, 15 Pick. (Mass.) 239 ; Thornton v. Ap- 
 pleton, 29 Me. 29S. As to whether tearing 
 and putting on a seal is material, see Powers 
 v. Ware, 2 Pick. (Mass.) 451; Truett v. Wain- 
 wright, 4 Gilm. (111.) 411; 11 M. & W. 778. 
 The question of materiality is one of law for 
 the court; Martendale v. Follet, 1 N. H. 95; 
 Brackett Ex'r v. Mountfort, 11 Me. 115; 
 Wheelock v. Freeman, 13 Pick. (Mass.) 165, 
 23 Am. Dec. 674; Hill v. Calvin, 4 How. 
 (Miss.) 231 ; Pritchard v. Smith, 77 Ga. 463 ; 
 and depends upon the facts of each case; 
 L. R. 1 Ex. D. 17G. The principle seems to 
 be that a party "is discharged from his lia- 
 bility, if the altered instrument, supposed to 
 be genuine, would operate differently to the 
 original instrument, whether it be or be not 
 to his prejudice;" Anson, Contr. (2d Am. 
 Ed.) *327; 5 E. & B. 89. For instances, see 
 Sehwarz v. Oppold, 74 N. Y. 307; Leonard 
 v. Phillips, 39 Mich. 1S2, 33 Am. Rep. 370; 
 Toomer v. Rutland, 57 Ala. 379, 29 Am. Rep. 
 722 ; Robinson v. State, 66 Ind. 331 ; Moore 
 v. Hutchinson, 69 Mo. 429; Express Pub. Co. 
 v. Aldine Press, 126 Pa. 347, 17 Atl. 60S; 
 Warder v. Willyard, 46 Minn. 531, 49 N. W. 
 300, 24 Am. St. Rep. 250. Alteration of a 
 deed will not defeat a vested estate or in- 
 terest acquired under the deed; 11 M. & W. 
 800; 2 II. Bla. 259; Chessman v. Whitte- 
 more, 23 Pick. (Mass.) 231 ; Barrett v. Thorn- 
 dike, 1 Greenl. (Me.) 73; Withers v. Atkin- 
 son, 1 Watts (Pa.) 236; Smith v. McGowan, 
 3 Barb. (N. Y.) 404; see Bliss v. Mclntyre, 18 
 Vt. 466, 46 Am. Dec. 165; but as to an action 
 upon covenants, has the same effect as alter- 
 ation of an unsealed writing ; 11 M. & W. 
 S00; Chessman v. Whittemore, 23 Pick. 
 (Mass.) 231; Waring v. Smyth, 2 Barb. Ch. 
 (N. Y.) 119, 47 Am. Dec. 299. As to filling 
 blanks, see Blank. 
 
 The same rule as to alterations applies to 
 negotiable promissory notes as to other in- 
 struments ; Wilson v. Hayes, 40 Minn. 531, 
 42 N. W. 467, 4 L. R. A. 19G, 12 Am. St. Rep. 
 754. The unauthorized insertion of "or bear- 
 er" in a note, if made innocently, will not 
 make the note void; Croswell v. Labree, 81 
 Me. 44, 1G Atl. 331, 10 Am. St. Rep. 238; but 
 the insertion of "or order" will avoid; Tay- 
 lor v. Moore (Tex.) 20 S. W. 53. 
 
 Where the alteration of a promissory note, 
 though made by the holder, is prompted by 
 honest motives, the instrument retains its 
 legal validity and a bill in equity will lie to 
 recover thereon ; Wallace v. Tice, 32 Or. 283, 
 51 Pac. 733 ; the fraudulent detaching a stub 
 containing conditions favorable to maker, 
 from a note, avoids the note; Stephens v. 
 Davis, 85 Tenn. 271, 2 S. W. 3S2. 
 
 A spoliation by a third party without the 
 knowledge or consent of a party to the in- 
 strument will not avoid an instrument even 
 if material, if the original words can be re- 
 stored with certainty; 1 Greenl. Ev. § 566; 
 Andrews v. Calloway, 50 Ark. 358, 7 S. W. 
 
 449; but the material alteration of an in- 
 strument by a stranger, while it is in the 
 custody of the promisee, avoids his rights 
 under it; 11 Coke 27 6; L. R. 10 Ex. 330; 
 because one who "has the custody of an in- 
 strument made for his benefit, is bound to 
 preserve It in its original state;" 13 M. & 
 W. 352; 3 E. & B. 687; Leake, Cont. 425; 
 but see Clapp v. Shephard, 23 Pick. (Mass.) 
 231. 
 
 When a note was given by a corporation 
 payable to its manager's wife for his salary, 
 an alteration making it payable to the man- 
 ager himself is material; Sneed v. Milling 
 Co., 73 Fed. 925, 20 C. C. A. 230. 
 
 Where there has been manifestly an al- 
 teration of a parol instrument, the party 
 claiming under it is bound to explain the 
 alteration ; Wilde v. Armsby, 6 Cush. (Mass.) 
 314; Simpson v. Stackhouse, 9 Pa. 186, 49 
 Am. Dec. 554; Hills v. Barnes, 11 N. H. 395; 
 McMicken v. Beauchamp, 2 La. 290; Warren 
 v. Layton, 3 Har. (Del.) 404; Commercial & 
 R. Bank of Vicksburg v. Lum, 7 How. (Miss.) 
 414; Tillou v. Ins. Co.,- 7 Barb. (N. Y.) 564; 
 6 C. & P. 273. As to the rule in case of 
 deeds, see Co. Litt. 225 o; 1 Kebl. 22; 5 Eng. 
 L. & Eq. 349 ; Den v. Farlee, 21 N. J. L. 280. 
 
 Under the common law erasures and al- 
 terations of written instruments were pre- 
 sumed to have been made at the time of, or 
 anterior to, their execution, the law presum- 
 ing the honesty of purpose and action until 
 the contrary is shown; Paramore v. Lindsey, 
 63 Mo. 66; Gooch v. Bryant, 13 Me. 386; Her- 
 rick v. Malin, 22 Wend. (N. Y.) 3S8; North 
 River Meadow Co. v. Christ Church, 22 N. J. 
 L. 424, 53 Am. Rep. 258. 
 
 See Interlineation ; Spoliation. 
 
 ALTERNAT. A usage among diplomatists 
 by which the rank and places of different 
 powers, who have the same right and pre- 
 tensions to procedence, are changed from 
 time to time, either in a certain regular or- 
 der, or one determined by lot In drawing 
 up treaties and conventions, for example, it 
 is the usage of certain powers to alternate, 
 both in the preamble and the signatures, so 
 that each power occupies, in the copy intend- 
 ed to be delivered to it, the first place. 
 Wheat. Int. Law § 157. 
 
 ALTERNATIVE. Allowing a choice be- 
 tween two or more things or acts to be done. 
 In contracts, a party has often the choice which 
 of several things to perform. A writ is in the alter- 
 native which commands the defendant to do the 
 tbing required, or show the reason wherefore he has 
 not done it ; Finch 257 ; 3 Bla. Com. 273. Under 
 the common-law practice, the first mandamus is an 
 alternative writ ; 3 Bla. Com. Ill ; but in modern 
 practice this writ is often dispensed with and its 
 place is taken by a rule to show cause. See Man- 
 damus. 
 
 ALTIUS N0N T0LLENDI. In Civil Law. 
 A serviture by which the owner of a house 
 is restrained from building beyond a certain 
 height.
 
 ALTIUS TOLLENDI 
 
 185 
 
 AMBASSADOR 
 
 ALTIUS TOLLENDI. In Civil Law. A 
 servitude which consists in the right, to hhu 
 who is entitled to it, to build his house as 
 high as he may think proper. In general, 
 every one enjoys this privilege, unless he Is 
 restrained by some contrary title. 
 
 ALTO ET BASSO. High and low. 
 This phrase is applied to an agreement made be- 
 tween two contending parties to submit all matters 
 in dispute, alto et basso to arbitration. Cowell. 
 
 ALTUM MERE. The high sea. 
 
 ALUMNUS. A foster-child. 
 Also a graduate from a school, college, or 
 other institution of learning. 
 
 ALVEUS (Lat). The bed or channel 
 through which the stream flows when it runs 
 within its ordinary' channel. Calvinus, Lex. 
 
 Alveus derelictus, a deserted channel. 1 
 Mackeldey, Civ. Law 280. 
 
 AMALGAMATION. Union of different 
 races, or diverse elements, societies, or corpo- 
 rations, so as to form a homogeneous whole 
 or new body ; interfusion ; intermarriage ; 
 consolidation ; coalescence ; as the amalga- 
 mation of stock. Stand. Diet 
 
 In England it is used in the case of the 
 merger of two incorporated companies. 
 
 The word has no definite meaning ; it in- 
 volves the blending of two concerns into 
 one ; [1904] 2 Ch. 268. 
 
 See Merger; Shareholder. 
 
 AMALPHITAN TABLE. A code of sea 
 laws compiled for the free and trading re- 
 public of Amalphi toward the end of the 
 eleventh century. 3 Kent 9. 
 
 It consists of the laws on maritime subjects which 
 were or had been in force in countries bordering on 
 the Mediterranean ; and, on account of its collecting 
 them into one regular system, it was for a long 
 time received as authority in those countries. 1 
 Azuni, Mar. Law 376. It became a part of the law 
 of the sea ; The Scotia, 14 Wall. (U. S.) 170, 20 L. 
 Ed. 822. See Code. 
 
 AMBACTUS (Lat. ambire, to go about). 
 A servant sent about; one whose services 
 his master hired out. Spelman, Gloss. 
 
 AMBASSADOR IN INTERNATIONAL 
 
 LAW. Ambassadors formed the first class 
 of the public ministers (q. v.) who were sent 
 abroad by sovereign states with authority to 
 represent their government and to transact 
 business with the government to which they 
 were sent. 
 
 A distinction was formerly made between 
 Ambassadors Extraordinary, who were sent 
 to conduct special business or to remain for 
 an indeterminate period, and Ambassadors Or- 
 dinary, who were sent on permanent mis- 
 sions ; but this distinction is no longer ob- 
 served. 
 
 Ambassadors are regarded as the personal 
 representatives of the head of the state 
 which sends them, and in consequence they 
 are entitled to special honors, and have spe- 
 cial privileges, chiefly that of negotiating 
 personally with the head of the state, though 
 
 this privilege is of little value at the; t 
 
 day, owing to the general adoption of 
 tutional forms of government. Onl., 
 pires, Kingdoms, Grand Duchies, and 
 Republics are entitled to send and r< 
 Ambassadors. Until recently the l 
 States was represented by Ministers Pleni- 
 potentiary, never having sent persons of the 
 rank of Ambassador in the diplomatic 
 On March 3, 1893, a law was passed au- 
 thorizing the President to designate as Am- 
 bassadors the representatives of the United 
 States to such countries as he might be ad- 
 vised were so represented or about to be rep- 
 resented in the United States. In conse- 
 quence of this law the United States is now 
 represented by Ambassadors in Great Britain, 
 Germany, Austria-Hungary, Prance, Italy, 
 Mexico, Brazil, Russia, Japan, Turkey, and 
 Spain. 
 
 Before an Ambassador is sent to a foreign 
 country, it is the custom to inquire if the 
 designated person will be a persona grata to 
 the government of that country. No reasons 
 need be given by the foreign government for 
 refusing to receive a given individual. After 
 an appointment the Ambassador is provided 
 with a letter of credence (q. v.) which iden- 
 tifies him at the foreign court. 
 
 The duties of an Ambassador are varied; 
 he is the mouthpiece of communications 
 from his state to the foreign country ; he 
 must keep his government informed upon all 
 .questions of interest to it ; he must see to 
 the protection of citizens of his country resi- 
 dent in the foreign state ; and he may nego- 
 tiate treaties when his government specially 
 empowers him to do so by giving him a docu- 
 ment called Full Powers (q. v.). 
 
 The person of an Ambassador is inviolable. 
 He is exempt from both the criminal and 
 civil jurisdiction of the country to which he 
 is sent. As early as 1708 an act was passed 
 by the British Parliament confirming the 
 immunity of Ambassadors from arrest and 
 imposing heavy penalties upon any persons 
 who should serve a writ or process upon 
 them. They can not be arrested for debt, 
 nor for violation of the law, except in cases 
 where it may be necessary to prevent them 
 from committing acts of violence. If, how- 
 ever, they should be so regardless of their 
 duty and of the object of their immunity as 
 to injure or openly attack the laws of the 
 foreign government, their functions may be 
 suspended by a refusal to treat with them, 
 or application can be made to their own 
 sovereign for their recall, or they may be 
 dismissed or required to depart within a 
 reasonable time. 
 
 By what Is called the fiction of ex-terri- 
 toriality, the exemption of an ambassador 
 from the jurisdiction of the country in which 
 he resides has been extended to his house 
 and his suite. His house cannot be entered 
 by officers of police, nor can his servants be 
 arrested by the ordinary writ or process. In
 
 AMBASSADOR 
 
 186 
 
 AMBIGUITY 
 
 consequence, the Ambassador's house has 
 sometimes been used as an asylum (q. v.) 
 for criminals. Much diplomatic controversy 
 has taken place upon this point, and a! 
 ent asylum is not given, except occasionally, 
 in times of revolution, to political refugees. 
 An ambassador's children horn abroad re- 
 tain the citizenship of their father; Geofroy 
 v. Riggs, 133 U. S. 25S, 10 Sup. Ct. 295, 33 L. 
 Ed. G42 ; Moore, IV, §§ 623-695. 
 
 AMBIDEXTER (Lat). Skilful with 
 both hands. 
 
 Applied anciently to an attorney who took pay 
 from both sides, and subsequently to a juror guilty 
 of the same offence ; Cowell. 
 
 AMBIGUITY. Duplicity, indistinctness or 
 uncertainty of meaning of an expression used 
 in a written instrument 
 
 The word "uncertainty" in a suit refers to 
 the uncertainty defined in pleading and does 
 not include ambiguity ; Kraner v. Halsey, 82 
 Cal. 209, 22 I'ac. 1137. 
 
 Latent is that which arises from some col- 
 lateral circumstance or extrinsic matter in 
 cases where the instrument itself is suffi- 
 ciently certain and intelligible. Inhabitants 
 of Jay v. Inhabitants of East Livermore, 50 
 Me. 107; Tilton v. Bible Society, 60 N. H. 
 377, 49 Am. Rep. 321; Simpson v. Dix, 131 
 Mass. 179; Clark v. Woodruff, 83 N. Y. 518. 
 
 Patent is that which appears on the face 
 of the instrument ; that which occurs when 
 the expression of an instrument is so defec- 
 tive that a court which is obliged to place 
 a construction upon it, cannot, placing itself 
 in the situation of the parties, ascertain 
 therefrom the parties' intention. Williams 
 v. Hichborn, 4 Mass. 205; U. S. v. Cantril, 
 4 Cra. (U. S.) 167, 2 L. Ed. 584; 1 Greenl. 
 Ev. § 292 ; Ans. Contr. 24S ; Peisch v. Dick- 
 son, 1 Mas. 9, Fed. Cas. No. 10,911; Cham- 
 bers v. Ringstaff, 69 Ala. 140; Palmer v. 
 Albee, 50 la. 429; Nashville Life Ins. Co. 
 v. Mathews, 8 Lea (Tenn.) 499. 
 
 The term does not include mere inaccu- 
 racy, or such uncertainty as arises from the 
 use of peculiar words, or of common words 
 in a peculiar sense; Wigr. Wills 174; 3 Sim. 
 24 ; 3 M. & G. 452 ; Brown v. Brown, 8 Mete. 
 (Mass.) 576; Farmers' & Mechanics' Bank v. 
 Day, 13 Yt. 36; see Fish v. Hubbard's 
 Admr's. 21 Wend. (N. Y.) 651; 8 Bing. 244; 
 and intends such expressions as would be 
 found of uncertain meaning by persons of 
 competent skill and information ; 1 Greenl. 
 Ev. § 298. 
 
 Latent ambiguities are subjects for the 
 consideration of a jury, and may be explain- 
 ed by parol evidence; 1 Greenl. Ev. § 301; 
 and see Wigr. Wills 48; 5 Ad. & E. 302; 
 3 B. & Ad. 728; Brown v. Brown, 8 Mete. 
 (Mass.) 570; Astor v. Ins. Co., 7 Cow. (N. 
 Y.) 1202; Peisch v. Dickson, 1 Mas. 9, Fed. 
 Cas. No. 10,911. Patent amliisuity cannot be 
 explained by parol evidence, and renders the 
 instrument as far as it extends inoperative; 
 
 Williams v. Hichborn, 4 Mass. 205; New 
 Jersey v. Wilson, 7 Cra. (U. S.) 167, 3 L. Ed. 
 Jarm. Wills (6th Am. Ed.) *400. See 
 Neal v. Beams, 88 Ga. 298, 14 S. E. 017; 
 Whaley v. Neil!, 44 Mo. App. 320; Horner 
 v. Still well, 35 N. J. L. 307; Hollen v. Davis, 
 59 la. 444, 13 N. W. 413, 44 Am. Rep. 688; 
 Pickering v. Pickering, 50 N. H. 349; Hyatt 
 v. Pugsley, 23 Barb. (N. Y.) 285; Crooks v. 
 Whitford, 47 Mich. 2S3, 11 N. W. 159; Mar- 
 shall v. Gridley, 46 111. 247. 
 
 See Latent Ambiguity; Patent Ambig- 
 uity. 
 
 AMBIT. A boundary line. Ellicott v. 
 Pearl, 10 Pet. (U. S.) 412, 442, 9 L. Ed. 475. 
 
 AMBITUS (Lat). A space beside a build- 
 ing two and a half feet in width, and of the 
 same length as the building ; a space two 
 and a half feet in width between two ad- 
 jacent buildings ; the circuit, or distance 
 around. Cicero ; Calvinus, Lex. 
 
 AMBULANCE. A vehicle for the convey- 
 ance of the sick or wounded. In time of 
 war they are considered neutral and must be 
 respected by the belligerents. Oppenheim, 
 Int. L. 126. 
 
 AMBULATORY (Lat. ambulare, to walk 
 about). Movable; changeable; that which 
 is not fixed. 
 
 Ambulatoria voluntas (a changeable will) 
 denotes the power which a testator possesses 
 of altering his will during his lifetime. 
 
 AMBUSH. The act of attacking an enemy 
 unexpectedly from a concealed station; a 
 concealed station, where troops or enemies 
 lie in wait to attack by surprise; an ambus- 
 cade ; troops posted in a concealed place, for 
 attacking by surprise. To lie in wait, to sur- 
 prise, to place in ambush. 
 
 AMELIORATIONS. Betterments. 6 Low. 
 Can. 294; 9 id, 503. 
 
 AMENABLE. Responsible; subject to an- 
 swer in a court of justice ; liable to punish- 
 ment. 
 
 AMENDE HONORABLE. A penalty im- 
 posed upon a person by way of disgrace or 
 infamy, as a punishment for any offence, or 
 for the purpose of making reparation for any 
 injury done to another, as the walking into 
 church in a white sheet, with a rope about 
 the neck and a torch in the hand, and beg- 
 ging the pardon of God, or the king, or any 
 private individual, for some delinquency. 
 
 In French Law. A punishment somewhat 
 similar to this, which bore the same name, 
 was common in France ; it was abolished by 
 the law of the 25th of September, 1791 ; Mer- 
 lin, Rdpert. In 1826 it was re-introduced in 
 cases of sacrilege and was finally abolished 
 in 1S30. 
 
 For the form of a sentence of Amende 
 Honorable, see D'Aguesseau, CEuvres, 43 e 
 Plaidayer, torn. 4, p. 246. 
 
 In modern usage, an apology.
 
 AMENDMENT 
 
 187 
 
 AMENDS 
 
 AMENDMENT. In Legislation. An alter- \ 
 atiou or change of something proposed in a 
 bill or established as law. 
 
 Thus the senate of the United States may ! 
 amend money-bills passed by the house of 
 representatives, but cannot originate such 
 bills. The constitution of the United States , 
 contains a provision for its amendment j. U. 
 S. Const, art. 5. 
 
 In Practice. The correction, by allowance; 
 of the court, of an error committed in the 
 progress of a cause. 
 
 Amendments, at common law, independent- 
 ly of any statutory provision on the subject, 
 are in all cases in the discretion of the court, 
 for the furtherance of justice. Under stat- 
 utes in modern practice, they are very liberal- 
 ly allowed in all formal and most substantial 
 matters, either without costs to the party 
 amending, or upon such terms as the court 
 think proper to order. See Jeofaille. 
 
 An amendment, where there is something 
 to amend by, may be made in a criminal as 
 in a civil case; 12 Ad. & B. 217; Com. v. 
 Parker, 2 Pick. (Mass.) 550. But an indict- 
 ment, which is a finding upon the oaths of 
 the grand jury, can only be amended with 
 their consent before they are discharged; 
 2 Hawk. PL Cr. c. 25, SS 97, 98; Com. v. 
 Child, 13 Pick. (Mass.) 200; State v. Mc- 
 Carthy, 17 R. I. 370, 22 Atl. 282; but see 
 Miller v. State, 08 Miss. 221, 8 South. 273. 
 In many states there are statutory provi- 
 sions relative to the amendment of indict- 
 ments; State v. Curtis, 44 La. Ann. 320, 10 
 South. 7S4. A bill of exceptions when signed 
 j'nd filed becomes a part of the record and 
 may be amended like any other record; Mar- 
 tin v. It. Co., 53 Ark. 250, 13 S. W. 705 ; Lef- 
 ferts v. State. 49 N. J. Law 20, Atl. 521; 
 Pollard v. Rutter, 35 111. App. 370; Burdoin 
 v. Town of Trenton, 116 Mo. 358, 22 S. W. 
 728. 
 
 An information may be amended after 
 demurrer ; 4 Term 457 ; 4 Burr. 2508. At 
 common law a mistake in an information 
 may be amended at any time; State v. 
 White, 64 Vt. 372, 24 Atl. 250. 
 
 Where a verdict is supported by evidence, 
 a pleading will be considered as amended ; 
 Haley v. Kilpatrick, 104 Fed. 647, 44 C. C. 
 A. 102. 
 
 Where, in the course of a trial, it appears 
 that the pleadings should be amended, the 
 usual practice is to move that "the declara- 
 tion (or other pleading) he amended to con- 
 form to the facts." Ordinarily no further 
 action is required. 
 
 An amended pleading speaks as of the 
 time of the original; Baltimore & O. R. Co. 
 v. McLaughlin, 7:; Fed. 519, 19 C. C. A. 551. 
 
 It is not permitted by amendment to make 
 an entirely new case; In re Sims, 9 Fed. 
 440. 
 
 AMENDS. A satisfaction given by a 
 wrong-doer to the party injured, for a wrong 
 committed. 1 Lilly, Reg. 81. 
 
 By statute 24 Geo. II, c. 44. In I, 
 
 and by similar statutes in some at I ie 
 justices of the peace, upon 
 notified <>f an Intended 
 may tender amends for the wrong al 
 as done by them in their official chan 
 and, if found sufficient, the tender bars the 
 action; Lake v. Shaw, 5 S. & It. (Pa.) .",17. 
 
 AMERCEMENT. A pecuniary penalty 
 Imposed upon an offender by a judicial tri- 
 bunal. 
 
 The judgment of the court is, that the party be 
 at the mercy of the court (sit in *■. \), up- 
 
 on which the afjeerors— or, in the superior courts, 
 the coroner — liquidate the penalty. As distinguished 
 from a fine, at the old law an amercement was for 
 a lesser offence, might be imposed by a court not 
 of record, and was for an uncertain amount un- 
 til it had been affeered. Either paity to a suit who 
 failed was to be amerced pro clamore falso (for his 
 false claim) ; but these amercements have been 
 long since disused ; 4 Bla. Com. 379 ; Bacon, Abr. 
 Fines and Amercements. 
 
 The officers of the court, and any person who 
 committed a contempt of court, was also liable to 
 be amerced. 
 
 Formerly, if the sheriff failed in obeying 
 the writs, rules, or orders of the court, he 
 might be amerced ; but this practice has 
 been generally superseded by attachment. 
 In some of the United states, however, the 
 sheriff may, by statutory provision, be 
 amerced for making a return contrary to the 
 provision of the statute; Coxe 136, 169; 
 Stephens v. Clark, 8 N. J. L. 270; Wright v. 
 Green, 11 N. J. L. 334 : President, etc.. of 
 Paterson Bank v. Hamilton, 13 N. J. L 159; 
 Le Roy v. Blauvelt, 13 N. J. L. 341; Daw- 
 son v. Holcomb, 1 Ohio, 275, 13 Am. Dec 
 018; McLin v. Ilardie, 25 N. C. 407; Cam. & 
 N. 477; or if he fails to make a return with- 
 in the proper time ; Sharp v. Ross, 7 Ohio 
 Cir. Ct. 55. 
 
 AMERCEMENT ROYAL. In Great Brit- 
 ain a penalty Imposed on an officer for a 
 misdemeanor in his office. 
 
 AMERICAN. Pertaining to the western 
 hemisphere or in a more restricted sense to 
 the United States. See Beardsley v. Select- 
 men of Bridgeport, 53 Conn. 493, 3 Atl. 557, 
 55 Am. Rep. 152. 
 
 AMEUBLISSEMENT. A species of agree- 
 ment which by a fiction gives to immovable 
 goods the quality of movable. Merl. Rep. ; 1« 
 Low. Can. 25, 58. 
 
 AMI (Fr.). A friend. See Pbocheot Amy. 
 
 AMICABLE ACTION. An actioa e 
 
 by agreement of parties. 
 
 This practice prevails in Pennsylvania. When en- 
 tered, such action is considered as if it had been 
 adversely commenced and the defendant had been 
 regularly summoned. 
 
 It presupposes that there is a real dispute 
 between the parties, an actual controversy 
 and adverse interests. The parties, to save 
 needless expense and trouble, agree to con- 
 duct the suit in an amicable manner; Lord 
 v. Veazie, S How. (U. S.) 255, 12 L. Ed.
 
 AMICABLE ACTION 
 
 1S8 
 
 AMICUS CURIAE 
 
 10G7; Adams v. R. Co., 21 R, I. 134, 42 Atl. 
 515, 44 L R. A. 275; Ex parte Steele, 162 
 Fed. 694. It differs entirely from a "Moot" 
 Case (q. v.). 
 
 An agreement between a county and a pro- 
 posed buyer of its bonds to prosecute a 
 made-up case to settle the question of the 
 validity of the bonds, prior to issue, at the 
 expense of the couuty, is void; Van Horn v. 
 Kittitas County, 112 Fed- 1. 
 
 See Case Stated. 
 
 AMICUS CURI/E (Lat. a friend of the 
 court). In Practice. A friend of the court 
 
 One who, for the assistance of the court, 
 gives information of some matter of law in 
 regard to which the court is doubtful or 
 mistaken; such as a case not reported or 
 which the judge has not seen or does not, 
 at the moment, recollect ; 2 Co. Inst 178 ; 
 2 Viner, Abr. 475. 
 
 This custom cannot be traced to its origin, but is 
 immemorial in the English law. It is recognized in 
 the Year Books, and it was enacted in 4 Hen. IV. 
 (1403) that any stranger as "amicus curiae" might 
 move the court, etc. Under the Roman system the 
 Judex, "especially if there was but one, called some 
 lawyer to assist him with their counsel" "sibi advo- 
 cavit ut in consilio adessent ;" Cic. Quint. 2 Gell. 
 xiv. 2 ; Suet. Lib. 33. There was in that day also 
 the "amicus consiliari," who was ready to make 
 suggestions to the advocate, and this "amicus" was 
 called a "ministrator ;" Cic. de Orat. II. 75. This 
 custom became incorporated in the English system, 
 and it was recognized throughout the earlier as well 
 as the later periods of the common law. At first 
 suggestions could come only from the barristers or 
 counsellors, although by the statute of Hen. IV. 
 a "bystander" had the privilege. The custom in- 
 cluded instructing, warning, informing, and moving 
 the court. The information so communicated may 
 extend to any matter of which the court takes ju- 
 dicial cognizance ; 8 Coke 15. 
 
 It is not the function of amicus curios to 
 take upon himself the management of a 
 cause; Taft v. Transp. Co., 56 N. H. 416; 
 In re Pina's Estate, 112 Cal. 14, 44 Pac. 332 ; 
 Parker v. State, 133 Ind. 178, 32 N. E. 836, 
 33 X. E. 119, 18 L. R. A. 567; or to proceed 
 by error or appeal ; Martin v. Tapley, 119 
 Mass. 116; or demurrer; Ex parte Hender- 
 son, 84 Ala. 36, 4 South. 2S4; or for a re- 
 hearing; People v. Loan Ass'n, 127 Cal. 400, 
 5S Pae. 822, 59 Pac. 692. 
 
 Any one as amicus curias may make ap- 
 plication to the court in favor of an infant, 
 though he be no relation; 1 Ves. Sen. 313; 
 and see Williams v. Blunt, 2 Mass. 215; In 
 re Green's Estate, 3 Brewst (Pa.) 427; In 
 re Guernsey's Estate, 21 111. 443. Any attor- 
 ney as amicus curia may move the dismis- 
 sal of a fictitious suit; Haley v. Bank, 21 
 Nev. 127, 26 Pac. 64, 12 L. R. A. 815; 
 Birmingham Loan & Auction Co. v. Bank, 
 100 Ala. 249, 13 South. 945, 46 Am. St. 
 Rep. 45; Judson v. Jockey Club, 14 Misc. 
 Rep. 562, 36 N. Y. Supp. 128; In re Guern- 
 sey's Estate, 21 111. 443; or one in which 
 there is no jurisdiction; Williams v. Blunt, 
 2 Mass. 215; In re Columbia Real Estate 
 Co., 101 Fed. 965; Jones v. City of Jef- 
 ferson, 66 Tex. 576, 1 S. W. 903; 2 Show. 
 
 596 ; or move to quash a vicious indictment, 
 for in case of trial and verdict judgment 
 must be arrested ; Comberb. 13 ; or suggest 
 an error which would prevent judgment when 
 the absence of the party prevented a motion 
 in arrest; 2 Show. 297. He may be allowed 
 a reasonable compensation to be taxed by the 
 court; In re St Louis Institute of Christian 
 Science, 27 Mo. App. 633. 
 
 The intervention may be by affidavit; Ex 
 parte Guernsey's Estate, 21 111. 443 ; motion ; 
 Haley v. Bank, 21 Nev. 127, 26 Pac. 64, 12 
 L R. A. 815 ; or oral statement ; Olsen v. 
 Ins. Co., 11 Tex. Civ. App. 371, 32 S. W. 446 ; 
 or it may be requested by the court; Ex 
 parte Randolph, 2 Brock. 447, Fed. Cas. No. 
 11,558. 
 
 The term is sometimes applied to counsel 
 heard in a cause because interested in a 
 similar one; Ex parte Yeager, 11 Grat (Va.) 
 656; State v. Rost, 49 La. Ann. 1451, 22 
 South. 421; and occasionably to strangers 
 suggesting the correction of errors in the 
 proceedings ; Year Books 4 Hen. VI. 16 ; 11 
 Mod. 137 ; U. S. v. Gale, 109 U. S. 68, 3 Sup. 
 Ct. 1, 27 L. Ed. 857. 
 
 Leave to file briefs as amicus curiae will 
 be denied when it does not appear that the 
 applicant is interested in any other case that 
 will be affected by the decision and the par- 
 ties are represented by competent counsel, 
 whose consent has not been secured; North- 
 ern Securities Co. v. U. S., 191 U. S. 555, 
 24 Sup. Ct 119, 48 L. Ed. 299 ; where many 
 cases are cited in the argument. 
 
 The Attorney General of the United States 
 has appeared in the Supreme Court in The 
 Income Tax Cases, 158 U. S. 601, 15 Sup. 
 Ct. 912, 39 L. Ed. 1108; The Corporation 
 Tax Cases, 220 U. S. 107, 31 Sup. Ct 342, 55 
 L. Ed. 389, Ann. Cas. 1912B, 1312; The 
 Safety Appliance Case, 196 U. S. 1, 25 Sup. 
 Ct. 158, 49 L. Ed. 363, and the Second Em- 
 ployers' Liability Cases, 223 U. S. 1, 32 Sup. 
 Ct 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 
 44. In cases where the United States is 
 not a party, but is substantially interested, 
 it is the practice to ask leave to intervene, or 
 to be heard as amicus curia;, or he is heard 
 by leave of court 
 
 In the Reading Receivership (U. S. C. C. 
 E. D. of Pa., 1893, Dallas, C. J.) certain 
 Union employees petitioned the Court for- 
 an order restraining the receivers from dis- 
 charging the petitioners unless they would 
 dissolve their connections with their Union. 
 The Attorney General, Mr. Olney, sent the 
 Court an argument on behalf of the petition- 
 ers. The Court said at bar that, if counsel 
 for the petitioners saw proper to offer it as 
 part of their argument, it would be re- 
 ceived. Opposing counsel did not object to it 
 if so offered. 
 
 Where the question of the constitutionality 
 of the Employers' Liability Act of 1906 was 
 involved the court permitted an Assistant 
 Attorney General to intervene and to be
 
 AMICUS CURIAE 
 
 189 
 
 AMNESTY 
 
 
 heard, though considering that such a prac- 
 tice in a litigation strictly inter partes with 
 which the United States had no concern, 
 ought not to he encouraged, in the absence 
 of any statute or law authorizing or direct- 
 ing the Attorney General to support by 
 argument in the courts generally the legis- 
 lation of Congress where the United States 
 is not a party nor its interests involved in 
 any tangible way; Brooks v. Southern Pac. 
 Co., 148 Fed. 9SG. 
 
 In Mason v. Ry., 197 Mass. 349, 83 X. B. 
 87G, 10 L. R. A. (N. S.) 27(5, 125 Am. St. 
 Rep. 371, 14 Ann. Cas. 574, on motion of a 
 member of the bar suggesting that the action 
 be dismissed as being virtually brought 
 against the King of England, accompanied by 
 an affidavit establishing that fact, it was 
 held that the action could not be maintained. 
 There was no appearance for defendant. 
 
 AMITA (L-at). An aunt on the father's 
 side. 
 
 Amita magna. A great-aunt on the fa- 
 ther's side. 
 
 Amita major. A great-great-aunt on the 
 father's side. 
 
 Amita maxima. A great-great-great- 
 aunt, or a great-great-grandfather's sister. 
 Calvinus, Lex. 
 
 A Ml TIN US. The child of a brother or 
 sister ; a cousin ; one who has the same 
 grandfather, but different father and mo- 
 ther. Calvinus, Lex. 
 
 AMITTERE CURIAM (Lat. to lose court). 
 To be excluded from the right to attend 
 court. Stat. Westm. 2, c. 44. 
 
 AMITTERE LIBERAM LEGEM. To lose 
 the privilege of giving evidence under oath 
 in any court ; to become infamous, %n(l in- 
 capable of giving evidence. Glanville 2. 
 
 If either party in a wager of battle cried 
 "craven" he was condemned amittere liber- 
 am legem; 3 Bla. Com. 340. 
 
 AMNESTY. An act of oblivion of past of- 
 fences, granted by the government to those 
 who have been guilty of any neglect or 
 crime, usually upon condition that they re- 
 turn to their duty within a certain period. 
 
 Express amnesty is one granted in direct 
 terms. 
 
 Implied amnesty is one which results 
 when a treaty of peace is made between con- 
 tending parties. Vattel, 1, 4, c. 2, § 20. 
 
 Amnesty and pardon are very different. The 
 former is an act of the sovereign power, the object 
 of which is to efface and to cause to be forgotten a 
 crime or misdemeanor ; the latter is an act of the 
 same authority, which exempts the individual on 
 whom it is bestowed from the punishment the law 
 inflicts for the crime he has committed ; U. S. v. 
 Wilson, 7 Pet. (U. S.) 1G0, 8 L. Ed. 640. Amnesty 
 is the abolition and forgetfulness of the offence; 
 pardon is forgiveness. A pardon Is given to one 
 who is certainly guilty, or has been convicted ; am- 
 nesty, to those who may have been so ; State v. 
 Blalock, 61 N. C. 242. 
 
 Their effects are also different. That of pardon Is 
 the remission of the whole or a part of the punish- 
 
 ment awarded by the law,— the conviction r 
 ing unaffected when only a partial pardon Is grant- 
 ed; an amnesty, on the contrary, has the efl 
 
 ing the criminal act, so that it is as If it had 
 not been committed, as far as the public Interests 
 are concern' d. 
 
 Their application also differs. Pardon is always 
 given to individuals, and properly only after judg- 
 ment or conviction ; amnesty may be granted either 
 before judgment or afterwards, and it is in general 
 given to whole classes of criminals, or supposed 
 criminals, for the purpose of restoring tranquility 
 in the state. But sometimes amnesties are limited, 
 and certain classes are excluded from their opera- 
 tion. 
 
 The term amnesty belongs to international law, 
 and is applied to rebellions which, by their magni- 
 tude, are brought within the rules of international 
 law, but has no technical meaning in the common 
 law, but is a synonym of oblivion, which, in the 
 English law, is the synonym of pardon; Knote v. 
 U. S., 10 Ct. CI. 397. 
 
 The distinction here taken between pardon and 
 amnesty was formerly drawn rather in a philosoph- 
 ical than legal sense, and it doubtless has its origin 
 in the civil law. It is, however, not recognized in 
 American law, and it is thus referred to: "Some 
 distinction has been made, or attempted to be made, 
 between pardon and amnesty. * * • This dis- 
 tinction is not, however, recognized in our law. 
 The constitution does not use the word 'amnesty'; 
 and, except that the term is generally employed 
 where pardon is extended to whole classes or com- 
 munities instead of individuals, the distinction be- 
 tween them is one rather of philological interest 
 than of legal importance." Knote v. U. S., 95 U. 
 S. 149, 24 L. Ed. 442. Amnesty, therefore, may L< 
 rather characterized as a general pardon granted 
 to a class of persons by law or proclamation. The 
 act in such case is as properly a pardon as if 
 simply granted to an individual. Indeed, it seems 
 to be generally conceded in the United States that 
 the word "pardon" includes the word "amnesty"; 
 Davies v. McKeeby, 5 Nev. 369, 373. 
 
 As to the amnesty proclamation of 29th 
 May, 1S65, see Hamilton's Case, 7 Ct. CI. 
 444. 
 
 The general amnesty granted by Presi- 
 dent Johnson on Dec. 25, 1S68, did not en- 
 title one receiving its benefits to the pro- 
 ceeds of his property previously condemned 
 and sold under the act of 17th July, 1SG2. the 
 proceeds having been paid into the treasury ; 
 Knote v. U. S., 95 U. S. 149, 24 L. Ed. 4!i'. 
 As to amnesty in cases arising out of the 
 War of Secession, see Armstrong's Foundry. 
 G Wall. (TJ. S.) 7<36, 18 L. Ed. 882 : Ex parte 
 Garland, 4 Wall. (U. S.) 333, IS L. Ed. 366 ; 1 1. 
 S. v. Klein, 13 Wall. (U. S.) 12S, 20 L. Ed. 519 ; 
 Armstrong v. U. S., 13 Wall. (U. S.) 154, 20 L. 
 Ed. G14; Carlisle v. U. S., 16 Wall. (1 . S.) 
 147, 21 L. Ed. 42G; Witkowski's Case, 7 Ct. 
 CI. 39S; Haym's Case, 7 Ct. CI. 443; tar- 
 ing's Case, 7 Ct. CI. 501; Meldrim's I 
 7 Ct. CI. 595; Scott's Case. 8 Ct CI. 457. 
 
 As to the power of the president to grant 
 a general amnesty, and whether there is any 
 legislative power to grant pardon and amnes- 
 ty, see Executive Power ; 1'aiidon ; Consti- 
 tution of the United States ; 34 L. R. A. 
 251, note. 
 
 AMONG. Mingled with or in the same 
 group or class. 
 
 As used in the commercial clause of the 
 federal constitution C J. Marshall defines
 
 AMONG 
 
 190 
 
 AMOTION 
 
 it as "intermingled with"; Gibbons v 
 den, 9 Wheat. (U. S.) 1, 104, G L. Ed. S\ ; 
 and it is sometimes held to be equivalent 
 to between; Hick's Estate. 134 Pa. 507, 10 
 Atl. 705; Records v. Fields, 155 Mo. 314, 
 55 S. W. 1021; Senger v. Senger's Ex'r, 81 
 Va. 6S7. 
 
 AMORTISE. To alien lands in mortmain. 
 
 AMORTISSEMENT (Fr.). The redemp- 
 tion of a debt by a sinking fund. 
 
 AMORTIZATION. An a lit nation of lands 
 or tenements in mortmain. 
 
 It is used colloquially in reference to pay- 
 in- off a mortgage or other debt by install- 
 ments, or by a sinking fund. 
 
 AMOTION (Lat. amovere, to remove; to 
 
 lake away). , 
 
 An unlawful taking of personal chattels 
 out of the possession of the owner, or of 
 one who has a special authority in them. 
 
 A turning out of the proprietor of an es- 
 tate in realty before the termination of his 
 estate. 3 Bla. Com. 198. See Ouster. 
 
 In Corporations. A removal of an official 
 agent of a corporation from the station as- 
 signed to him, before the expiration of the 
 term for which he was appointed. 8 Term 
 356 ; 1 East 562 ; Fuller v. Trustees, 6 Conn. 
 532; Dill. Mun. Corp. (4th ed.) § 238. 
 
 The term is distinguished from disfranchisement, 
 which deprives a member of a public corporation of 
 all rights as a corporator; while amotion applies 
 only to officers ; Richards v. Clarksburg, 30 W. Va. 
 491, 4 S. E. 774 ; White v. Brownell, 4 Abb. Pr. 
 N. S. (N. Y.) 162, 192. In Bagg's Case, recognized 
 as a leading one, the distinction between amotion 
 and disfranchisement was not quite clearly noted; 
 11 Co. 93 ; and see the observations upon it in Wil- 
 cock, Mun. Corp. 270. See 24 Cent. L. J. 99, as to 
 the difference between amotion and disfranchise- 
 ment. 
 
 Expulsion is the usual phrase in reference to loss 
 of membership of private corporations. The term 
 seems in strictness not to apply properly to cases 
 where officers are appointed merely during the will 
 of the corporation, and are superseded by the choice 
 of a successor, but, as commonly used, includes such 
 cases. 
 
 See Disfranchisement ; Expulsion ; As- 
 sociation. 
 
 The right of amotion of an officer for just 
 cause is a ''common-law incident of all cor- 
 porations ; i Burr. 517 ; 2 Kent 297 ; 1 Dill. 
 Mun. Corp. (4th ed.) § 251; Richards v. 
 Clarksburg, 30 W. Va. 491, 4 S. E. 774; 
 State v. Judges, 35 La. Ann. 1075; and 
 the power is inherent; Fawcett v. Charles, 
 13 Wend. (N. Y.) 473 ; Evans v. Philadelphia 
 Club, 50 Pa. 107, 127; T. Raym. 435; Burr's 
 Ex'r v. McDonald, 3 Graft. (Va.) 215 (and 
 see 2 Ld. Raym. 1504, where the contrary 
 was asserted, though it may be considered 
 settled as above stated) ; and in case of 
 mere ministerial officers appointed durante 
 bene pladto, at the mere pleasure of those 
 appointing him. without notice: Primm v. 
 City of Carondelet, 23 Mo. 22; see 1 
 
 Ventr. 77; 2 Show. 70 ; 11 Mod. 403 ; Field 
 v. Field, Wend. (N. Y.) 394; Q'Dowd v. 
 City of Boston, 149 Mass. 443, 21 N. E. 949. 
 Power to remove is necessarily incidental to 
 the power of appointment and the trustees 
 may remove without assigning any specific 
 cause whenever it is in their judgment in 
 the interest of the corporation; People v. 
 Higgins, 15 111. 110. Notice and an oppor- 
 tunity to be heard are requisite where the 
 appointment is during good behavior, or the 
 removal is for a specified cause; Field v. 
 Com., 32 Pa. 478; Page v. Hardin, 8 B. 
 Mour. (Ky.) 648; City of Hoboken v. Gear, 
 27 N. J. L. 205; City of Madison v. Korbly, 
 32 Ind. 74; Stadler v. City of Detroit, 13 
 Mich. 346 ; 10 H. L. Cas. 404. 
 
 Before amotion the officer is entitled to 
 notice of hearing, an accusation to be an- 
 swered, reasonable time for answer, repre- 
 sentation by counsel and an adjudication 
 after hearing ; Murdock v. Trustees, 12 Pick. 
 (Mass.) 244. Mere acts, which are a cause 
 for amotion, do not create a vacancy till the 
 amotion takes place; State v. Trustees, 5 
 Ind. 77; Murdock v. Trustees, 12 Pick. 
 (Mass.) 244. 
 
 Directors themselves have no implied pow- 
 er to remove one of their own number from 
 office even for cause; nor to exclude him 
 from taking part in their proceedings ; Com. 
 v. Detwiller, 131 Pa. 614, 18 Atl. 990, 902, 7 
 L. R. A. 357. In the absence of a statute 
 authorizing amotion by the directors of one 
 of their number, the power can only be ex- 
 ercised by the stockholders; Scott v. De- 
 troit Young Men's Society's Lessee, 1 Dougl. 
 (Mich.) 149 ; Fuller v. Trustees, 6 Conn. 532 ; 
 and see Com. v. Detwiller, 131 Pa. 614, 18 
 Atl. 9»0, 992, 7 L. R. A. 357, 360; State v. 
 Trustees, 5 Ind. 77. 
 
 The causes for amotion are said by Lord 
 Mansfield (1 Burr. 538) to be:— "first, such 
 as have no immediate relation to the office, 
 but are in themselves of so infamous a 
 nature as to render the offender unfit to 
 execute any public franchise (but indict- 
 ment and conviction must precede amotion 
 for such causes, except where he has left 
 the country before conviction ; 1 B. & Ad. 
 936) ; second, such as are only against his 
 oath and the duty of his office as a corpo- 
 rator, and amount to breaches of the tacit 
 condition annexed to his office; third, such 
 as are offences not only against the duty of 
 his office, but also matter indictable at 
 common law." See Com. v. Society, 2 Binn. 
 (Pa.) 448, 4 Am. Dec. 453 ; Evans v. Phila- 
 delphia Club, 50 Pa. 107 ; 11 Mod. 379. 
 
 Sufficient grounds of removal: Poverty 
 and inability to pay taxes; 3 Salk. 220; 
 total desertion of duty; Bull. N. P. 206; 1 
 Burr. 541 ; as to neglect of duty, see 1 B. 
 & Ad. 936; 4 Burr. 2004; 2 Stra. 819; 1 
 Vent. 146; habitual drunkenness; 3 Salk. 
 231; 3 Bulst 190; official misconduct in
 
 AMOTION 
 
 191 
 
 AMPARO 
 
 the office ; 4 Burr. 1999 ; habitual but not 
 mere casual non-attendance ; Murdock v. 
 Trustees, 12 Pick. (Mass.) 244; Fuller v. 
 Trustees, G Conn. 532. 
 
 Insufficient grounds of removal: Bank- 
 ruptcy; 2 Purr. 723; Atlas Nat. Bank v. 
 Gardner, 8 Biss. r.::7, Fed. Cas. No. 635;ca«- 
 ual intoxication; 3 Salk. 231; l Rolle 409; 
 old age; '2 Rolle 11; threats, insulting /</><- 
 guage, or libel upon the mayor or o 
 11 Coke 93; 1 C. & P. 257; 10 Ad. & E. 374. 
 
 The K. B. in England will see that a right 
 of amotion of an officer is lawfully 
 cised ; but it will not control the discretion 
 of the corporation, if so exercised; L. R. 5 
 H. L. 636. 
 
 AMOUNT IN CONTROVERSY. See Ju- 
 risdiction. 
 
 AMOUNT COVERED. The amount that 
 is insured, and for which underwriters arc 
 liable for loss under a policy of insurance. 
 
 It is limited by that specified in the policy 
 to be insured, and this limit may be applied 
 to an identical subject only, as a ship, a 
 building, or a life; or to successive subjects, 
 as successive cargoes on the same ship, or 
 successive parcels of goods transmitl 
 a certain canal or railroad during a speci- 
 fied period; and it may also be limited by 
 the terms of the contract to a certain pro- 
 portion, as a quarter, half, etc., of the value 
 of the subject or interest on which the in- 
 surance is made; Jackson v. Ins. Co., 16 
 B. Monr. (Ky.) 242; Estabrook v. Smith, (i 
 Cray (Mass.) 574, G6 Am. Dec. 443; Louisiana 
 Mut. Ins. Co. v. Ins. Co., 13 La. Ann. 246; 
 Cushman v. Ins. Co., 34 Me. 4S7 ; 39 Eng. 
 L. & Eq. 228. 
 
 AMOUNT OF LOSS. The diminution, de- 
 s'truction, or defeat of the value of, or of 
 the charge upon, the insured subject to the 
 assured, by the direct consequence of the 
 operation of the risk insured against, ac- 
 cording to its value in the policy, or in con- 
 tribution for loss, so far as its value is cov- 
 ered by the insurance. 2 Phill. Ins. c. xv., 
 xvi., xvii. ; Forbes v. Ins. Co., 1 Gray, 
 (Mass.) 371 ; Crombie v. Portsmouth Ins. 
 Co., 26 N. H. 389: Flanagan v. Ins. Co., 25 
 N. J. L. 506; Cincinnati v. Duffield, 6 Ohio 
 St. 200, 67 Am. Dec. 339 ; Eddy St. Foundry v. 
 Ins. Co., 5 R. I. 426; Merchants' Mut. Ins. 
 Co. v. Wilson, 2 Md. 217; 7 Ell. & B. 172. 
 See Loss. 
 
 AM0VEAS MANUS (Lat. that you remove 
 your hands). After office found, the king 
 was entitled to the things forfeited, either 
 lands or personal property; the remedy for 
 a person aggrieved was by "petition," or 
 "monstrans <lc droit," or "traverses," to es- 
 tablish his superior right. Thereupon a writ 
 issued, quod manus domini regis amovcan- 
 tur: 3 Bla. Com. 260. 
 
 AMPARO (Span.). A document protect- 
 
 in--,' the claimant of land till properly au- 
 thorized papers can be Issued. ': 
 Smithers' Adm'r, l Tex. 79u. 
 
 AMPLIATION. In Civil Law. A defer- 
 ring of judgment until the cause is further 
 examlm d. 
 
 In this case, the Judges pronounced the word 
 
 . or by writing the letters N. L, I 
 
 (.(]. v.), signifying that the cause \s 
 
 It is very similar to the common-law 
 
 tlce of entering cur. adv. vult In similar cases. 
 
 In French Law. A duplicate of au acquit- 
 tance or other instrument. 
 
 A aotary'e copy of acts passed before him, 
 delivered to the pari 
 
 AMUSEMENT. Pastime; diversion; en- 
 joyment. See Entertainment; Place oi 
 Amusement; Theatre. 
 
 AMY (Fr.). Friend. See Prociii.in Amy ; 
 Next Friend. 
 
 AN, JOUR ET WASTE. Year, day and 
 waste. See that title. 
 
 ANALOGY. The similitude of relation-; 
 which exist between things compared. See 
 Smith v. State, 63 Ala. 58. 
 
 Analogy has been declared to Be an argu- 
 ment or guide in forming legal judgments, 
 and is very commonly a ground of such judg- 
 ments; 3 Bingh. 265; 4 Burr. 1962, 2022, 
 2068; <; Ves. G75 ; 3 Swanst 561; :: P. 
 Will. 391; 3 Bro. C. C. 639, n. 
 
 ANALYTICAL JURISPRUDENCE. A the- 
 ory and system of jurisprudence wrought 
 out neither by inquiring for ethical prin- 
 ciples or the dictates of the sentiments ot 
 justice nor by the rules which may be ac- 
 tually in force, but by analyzing, classifying 
 and comparing various legal conceptions. 
 
 See Jurisprudence. 
 
 ANARCHY. The absence of all political 
 government; by extension, Confusion in gov- 
 ernment. 
 
 The absence of government ; a state of so- 
 ciety where there is no law or supreme pow- 
 er. Spies v. People, 122 111. 253, 12 X. E. 
 S65, 17 X. E. 89S, 3 Am. St. Rep. 
 
 A social theory which regards the union 
 of order with the absence of all direcl 
 eminent of man by man as the political 
 ideal ; absolute individual liberty. Cent. 
 Diet. 
 
 Taken in its proper sense, the word has 
 nothing to do with disorder or crime, hut in 
 •the Act* of Congress of March .:. L903, the 
 word "anarchists" is used synonymously 
 with "persons who believe in or advocate the 
 overthrow by force or violence of the 
 ernment of the United states or of all govern- 
 ment or of all forms of law or the assassina- 
 tion of public officials," and this would 
 to be the popular sense attaching to the 
 word. In the address of U. M. Rose, Presi- 
 dent of the American Bar "Association in
 
 ANARCHY 
 
 192 
 
 ANCESTRAL 
 
 1902, criminal anarchy is defined as the doc- 
 trine that organized government should be 
 overthrown by force and violence, or by as- 
 sassination of the executive head or of any 
 of the executive officials of the government, 
 by any unlawful means. 15 Rep. Am. Bar 
 Assn. 210. 
 
 In U. S. v. Williams, 194 TJ. S. 294, 24 Sup. 
 Ct 719, 48 L. Ed. 979, it was held that 
 even though an alien anarchist only regard- 
 ed the absence of government as a political 
 ideal, yet when he sought to attain it by ad- 
 vocating a universal strike and discoursing 
 upon "the legal murder of 1SS7" (Spies v. 
 People, 122 111. 1, 12 N. E. 8G5, 17 N. E. 898, 
 3 Am. St. Rep. 320) there was a justifiable 
 inference that he contemplated the ultimate 
 realization of his ideal by the use of force, 
 of that his speeches were incitements to that 
 end. And further, that even if "anarchists" 
 should be interpreted to mean political 
 philosophers innocent of evil intent, yet the 
 tendency of the general exploitation of such 
 views is so dangerous to the public weal that 
 aliens who hold and advocate them would 
 be undesirable additions to the population 
 and their exclusion infringes none of the 
 constitutional guaranties respecting freedom 
 of speech, etc. See Alien. 
 
 ANATHEMA. A punishment by which a 
 person is separated from the body of the 
 church, and forbidden all intercourse with 
 the faithful. 
 
 It differs from excommunication, which simply 
 forbids the person excommunicated from going into 
 the church and taking the communion with the 
 faithful. 
 
 ANATOCISM. In Civil Law. Taking in- 
 terest on interest; receiving compound in- 
 terest 
 
 ANCESTOR. One who has preceded an- 
 other in a direct line of descent ; an ascend- 
 ant. 
 
 A former possessor ; the person last seised. 
 Termes de la Ley ; 2 Bla. Com. 201. 
 
 In the common law, the word is understood as 
 well of the immediate parents as of those that are 
 higher ; as may appear by the statute 25 Edw. III., 
 De natis ultra mare, and by the statute 6 Ric. II. 
 c. 6, and by many others. But the civilians' rela- 
 tions in the ascending line, up to the great-grand- 
 father's parents, and those above them, they term 
 majores, which common lawyers aptly expound ante- 
 cessors or ancestors, for in the descendants of like 
 degree they are called -poster lores ; Cary, Litt. 45. 
 The term ancestor is applied to natural persons. 
 The words predecessors and successors are used in 
 respect to the persons composing a body corporate. 
 See 2 Bla. Com. 209 ; Bacon, Abr. ; Ayliffe, Pand. 
 58. 
 
 It designates the ascendants of one in the right 
 line, as father and mother, grandfather and grand- 
 mother, and does not include collateral relatives as 
 brothers and sisters ; Valentine v. Wetherill, 31 
 Barb. (N. Y.) 659. 
 
 ANCESTRAL. What relates to or has 
 been done by one's ancestors; as homage an- 
 cestral (see Homage) and the like. 
 
 That which belonged to one's ancestors. 
 
 Ancestral estates are such as come to the 
 possessor by descent. 3 Washb. R. P. (5th 
 Ed.) 411, 412. 
 
 ANCESTRAL ACTIONS. See Abatement. 
 
 ANCHOR. A measure containing ten gal- 
 lons. 
 
 The instrument used by which a vessel or 
 other body is held. See The Lady Franklin, 
 2 Low. 220, Fed. Cas. No. 7,984; Walsh v. 
 Dock Co., 77 N. Y. 448; Reid v. Ins. Co., 
 19 Hun (N. Y.) 284. 
 
 An Anchor Watch is one kept by a reduc- 
 ed number of men on a vessel in port or at 
 anchor; The Lady Franklin, 2 Low. 220, 
 Fed. Cas. No. 7,984; it may consist of one 
 man on deck; The Rival, 1 Sprague 128, 
 Fed. Cas. No. 11,867. 
 
 ANCHORAGE. A toll paid for every 
 anchor cast from a ship in a port. 
 
 Such a toll is said to be incident to almost 
 every port; 1 W. Bla. 413; 4 Term 260; 
 and is sometimes payable though no anchor 
 is cast; 2 Chit. Com. Law 16. 
 
 ANCIENT DEEDS. See Ancient Weit- 
 
 INGS. 
 
 ANCIENT DEMESNE. Manors which in 
 the time of William the Conqueror were in 
 the hands of the crown and are so recorded 
 in the Domesday Book. Fitzh. Nat. Brev. 
 14, 56. 
 
 Tenure in ancient desmesne may be plead- 
 ed in abatement to an action of ejectment; 
 2 Burr. 1046. 
 
 Tenants of this class had many privileges ; 
 2 Bla. Com. 99. 
 
 ANCIENT DOCUMENTS. See Ancient 
 Writings. 
 
 ANCIENT HOUSE. One which has stood 
 long enough to acquire an easement of sup- 
 port. 3 Kent 437 ; 2 Washb. R. P. (5th ed.) 
 *74, *76. See Easement ; Lateral Support. 
 
 ANCIENT LIGHTS. Windows or open- 
 ings which have remained in the same place 
 and condition twenty years or more. Wright 
 v. Freeman, 5 Harr. & J. (Md.) 477; Story 
 v. Odin, 12 Mass. 157, 7 Am. Dec. 46 ; Thurs- 
 ton v. Hancock, 12 Mass. 220, 7 Am. Dec. 57. 
 
 In England, a right to unobstructed light 
 and air through such openings is secured by 
 mere user for that length of time under the 
 same title. 
 
 Until the last forty years there was no 
 right of action merely because there was 
 less light than formerly, but only where 
 material inconvenience was caused in ordi- 
 nary occupations; 1 Dick. 163; 2 C. & P. 
 465; 5 id. 438. This rule was followed in 
 L. R. 4 Eq. 421 ; [1S97] 2 Ch. 214 ; Ir. Rep. 
 11 Eq. 541. It is held that one is entitled to 
 as much light as his building may ordinarily 
 require for habitation or business; [1900] 
 2 K. B. 722. In L. R. [1904] A. C. 179, it is 
 said: "To constitute actionable deprivation
 
 ANCIENT LIGHTS 
 
 193 
 
 ANCIENT LIGHTS 
 
 of light, it is not enough that there be less 
 light than before ; there must be a sub- 
 stantial deprivation of light, — enough to ren- 
 der occupation uncomfortable according to 
 ordinary notions of mankind." This has 
 been said to be the leading case ; 23 L. Q. R. 
 254. In [1902] 1 K. B. 15, the plaintiffs had 
 an easement of light and needed an extraor- 
 dinary amount in their business; a newly 
 erected building cut off a substantial amount 
 of it, but enough was left for all ordinary 
 purposes of habitation or business ; it was 
 held they were entitled to relief. This case 
 was approved ; L. R. 6 Ch. 809 ; and disap- 
 proved ; L. R. 4 Eq. 21; 28 L. T. 1S6. In 
 [1907] A. C. 1, there had been a large ob- 
 struction of light by the erection of the de- 
 fendant's house, and a large interference 
 with the cheerfulness of a room in the plain- 
 tiff's house, so that the character of such 
 room had been altered, and it had lost one 
 of its chief advantages, causing a substantial 
 depreciation in the rental value. It was 
 held that an actionable nuisance had been 
 committed. It is said the decision of the 
 House of Lords in [1904] A. C. 179, has left 
 the obstruction of ancient lights still, as it 
 always has been, a question of nuisance or 
 no nuisance, but has readjusted the law in 
 respect to the test of nuisance, and that the 
 test now is, not how much light has been 
 taken, and whether that is enough material- 
 ly to lessen the enjoyment and use of the 
 house which the owner previously had, but 
 how much light is left, and whether that is 
 enough for the comfortable use and enjoy- 
 ment of the house according to the ordinary 
 requirements of mankind; 74 L. J. Ch. 621; 
 [1905] 2 Ch. 210. 
 
 In the United States, such right is not ac- 
 quired without an express grant, in most 
 of the states; 2 Washb. R. P. (5th ed.) 62, 
 63; 3 Kent 446, n. See Cherry v. Stein, 
 11 Md. 1 ; Hulley v. Safe Deposit Co., 5 Del. 
 Ch. 578; Parker v. Foote, 19 Wend. (N. Y.) 
 309; Ward v. Neal, 37 Ala. 501; Pierre v. 
 Fernald, 26 Me. 436, 46 Am. Dec. 573 : Keats 
 v. Hugo, 115 Mass. 204, 15 Am. Rep. 80; 
 and cases under Air. This same doctrine 
 has been upheld in Illinois and Louisiana ; 
 Gerber v. Grabel, 16 111. 217 ; Taylor v. Boul- 
 ware, 35 La. Ann. 469. It is said not to be 
 suited to the conditions of a growing coun- 
 try and that it never became part of our 
 common law; Myers v. Gemmel, 10 Barb. 
 (N. Y.) 537. Other courts decline to adopt 
 the English doctrine; Keats v. Hugo, 115 
 Mass. 204, 15 Am. Rep. 80; Randall v. San- 
 derson, 111 Mass. 119; Hoy v. Sterrett, 2 
 Watts (Pa.) 327, 27 Am. Dec. 313 ; Doyle v. 
 Lord, 64 N. Y. 439, 21 Am. Rep. 629; Powell 
 v. Sims, 5 W. Va. 1, 13 Am. Rep. 629; In- 
 graham v. Hutchinson, 2 Conn. 597 ; Gerber 
 v. Grabel, 16 111. 217 ; and even where it is 
 accepted, its application should be limited 
 to cases where the easement is strictly nec- 
 Bouv.— 13 
 
 essary to the beneficial user of the property 
 granted; Turner v. Thompson, 58 Ga. 268, 
 24 Am. Rep. 497 ; 15 Harv. L. Rev. 305. 
 
 One who claims that the land adjoining 
 his shall remain unimproved should show 
 an express grant or covenant; Morrison v. 
 Marquardt, 24 la. 35, 92 Am. Dec. 444. There 
 can be no such easement by implication over 
 adjoining unimproved land of the grantor; 
 id.; Stein v. Hauck, 50 Ind. 68, 26 Am. Rep. 
 10; Keating v. Springer, 146 111. 481, 34 N. 
 E. 805, 22 L. R. A. 544, 37 Am. St. Rep. 17.3 : 
 Mullen v. Strieker, 19 Ohio St. 135, 2 Am. 
 Rep. 379; Rennyson's Appeal, 94 Pa. 147. 
 39 Am. Rep. 777; Wilmurt v. McGrane, 16 
 App. Div. 412, 45 N. Y. Supp. 32. But it 
 has been held that a grantee of land has 
 an easement of light by implied grant over 
 the adjoining unimproved land of his gran- 
 tor ; Sutphen v. Therkelson, 38 N. J. Eq. 
 318 ; Knoxville Water Co. v. Knoxville, 200 
 U. S. 25, 26 Sup. Ct. 224, 50 L. Ed. 353; 
 Janes v. Jenkins. 34 Md. 1, 6 Am. Rep. 300. 
 In 15 L. Q. R. 317, it is said that American 
 courts, in declining to follow the English 
 dor-trine, have assumed that it was unknown 
 prior to Independence. It was so said by Bron- 
 son, J., in Parker v. Foote, 19 Wend. (N. Y.) 
 309. But this is said to be incorrect. There 
 is a dictum of Wray, C. J., in Mosely v. Bland 
 (1611), cited in 9 Rep. 58 &.. and a reference 
 to it as an established doctrine in 1 1 1". Y. 
 B., 32 Hen. VI. f. 15. and in 4 Del. Ch. 
 043. it was held that the doctrine was part 
 of the common law of England and of the 
 colonies at the time of American Independ- 
 ence, and as such continued to be the law 
 of Delaware under the constitution adopted 
 in 1776. See Air. 
 
 As between landlord and tenant it is held 
 that a lease of a tenement carries with it an 
 implied grant of the right to light and air 
 from the adjoining land of the landlord 
 where the situation and habitual use of the 
 demised tenement are such that the riirlit 
 is essential to its beneficial enjoyment ; 
 Darnell v. Show-Case Co., 129 Ga. 02. 58 S. 
 E. 631, 13 L. R. A. (N. S.) 333. 121 Am. St. 
 Rep. 206; Ware v. Chew, 43 N. J. Eq. 493. 
 11 Atl. 746; Case v. Minot. 158 Mass. 577, 
 33 N. E. 700, 22 L. R. A. 536 (where the ten- 
 ant of an upper floor was held entitled to 
 light and air from a well) ; Doyle v. Lord, 
 64 N. Y. 432, 21 Am. Rep. 629; Hazlett v. 
 Powell, 30 Pa. 293; contra, Keating v. 
 Springer, 140 111. 484, 34 N. E. S05, 22 L. R. 
 A. 544, 37 Am. St. Rep. 175 ; Myers v. Gem- 
 mel, 10 Barb. (N. Y.) 537. 
 
 As to the right of an abutting owner to 
 light and air over the highway, see Air. 
 
 ANCIENT READINGS. Essays on the 
 early English statutes. Co. Litt. 280. 
 
 ANCIENT RECORDS. See Ancient 
 
 Writings. 
 
 ANCIENT RENT. The rent reserved at
 
 ANCIENT RENT 
 
 194 
 
 ANCIENT WRITINGS 
 
 the time the lease was made, if the build- 
 ing was not then under lease. 2 Vera. 542. 
 
 ANCIENT WRITINGS. Deeds, wills, and 
 other writings, more than thirty years old. 
 
 They may, in general, be read in evidence 
 without any other proof of their execution 
 than that they have been in the possession 
 of those claiming rights under them ; 1 
 Greenl. Ev. § 141 ; 12 M. & W. 205 ; 8 Q. B. 
 158; 7 Beaf. 93; Barr v. Gratz, 4 Wheat 
 (U. S.) 213, 4 L Ed. 553; Lessee of Clarke v. 
 Courtney, 5 Pet. (U. S.) 319, 8 L. Ed. 140; 
 Winn v. Patterson, 9 Pet. (U. S.) 663, 9 L. 
 Ed. 266; Jackson v. Blanshan, 3 Johns. (N. 
 Y.) 292, 3 Am. Dec. 4S5 ; Middleton v. Mass, 
 2 Nott & McC. (S. C.) 55; Duncan v. Beard, 
 id. 400; Tolman v. Emerson, 4 Pick. (Mass.) 
 160; Crane v. Marshall, 16 Me. 27, 33 Am. 
 Dec. 631; Dodge v. Briggs, 27 Fed. 170; 
 O'Donnell v. Johns & Co., 76 Tex. 362, 13 S. 
 W. 376; Pettingell v. Boynton, 139 Mass. 
 244, 29 N. E. 655; McClaskey v. Barr, 47 
 Fed. 154 ; King v. Sears, 91 Ga. 577, 18 S. E. 
 830 ; Whitman v. Heneberry, 73 111. 109. As 
 to the admission of duplicate copies, see Na- 
 tional Commercial Bank v. Gray, 71 Hun 295, 
 24 N. Y. Supp. 997. See Declabation; Ev- 
 idence. 
 
 The rule is broad enough to admit ancient 
 deeds purporting to have been signed by an 
 agent without production of the power of 
 attorney; Wilson v. Snow, 228 U. S. 217, 33 
 Sup. Ct 487, 57 D. Ed. . 
 
 Spanish documents produced to and in- 
 spected by the court, coming from official cus- 
 tody and bearing on their face every evi- 
 dence of age and authenticity, and otherwise 
 entitled to admissibility as ancient docu- 
 ments, will not be excluded because subjected 
 to various changes of possession during the 
 transition of the government of Florida from 
 Spain to the United States and during the 
 Civil War, it not appearing that they were 
 ever out of the custody of a proper custodian, 
 that the originals were lost, or that there 
 had been any fraudulent substitution ; Mc- 
 Guire v. Blount, 199 U. S. 142, 26 Sup. Ct 
 1, 50 L. Ed. 125. 
 
 Ancient documents are not admissible in 
 evidence as "public documents" where they 
 were not intended to be so, but to serve tem- 
 porary purposes only. Also where the rec- 
 ords were made by a deceased official, there 
 being nothing to show that they were made 
 contemporaneously with the doing of some- 
 thing which it was the duty of the deceased 
 official to record. In this case it was at- 
 tempted to prove that certain land, within 
 legal memory, had been covered by the sea. 
 A survey made in 1616 by the Lord Warden 
 of the Cinque Ports and an estimate by the 
 King's engineer for the reparation of certain 
 castles were rejected for the above reasons; 
 [1905] 2 Ch. 538. 
 
 Where an instrument itself would be ad- 
 missible without proof of execution, being 
 orer thirty years old, and its absence is sat- 
 
 isfactorily accounted for, held that evidence 
 of its contents was likewise admissible with- 
 out proof of execution ; Walker v. Peterson 
 (Tex.) 33 S. W. 269, Dec. 18, 1895. 
 
 A deed signed by the grantor by his mark 
 and not witnessed or acknowledged, and 
 therefore insufficient on its face, is inad- 
 missible as an ancient deed without proof 
 of execution ; O'Neal v. Railroad Co., 140 
 Ala. 378, 37 South. 275, 1 Ann. Cas. 319. As 
 a general rule in the case of ancient writ- 
 ings, proof of execution is not necessary ; 
 Fulkerson v. Holmes, 117 U. S. 389, 6 Sup. 
 Ct. 780, 29 L. Ed. 915; Whitman v. Heneber- 
 ry, 73 111. 109 ; such documents when ad- 
 mitted are to be construed as duly executed ; 
 Brown v. Wood, 6 Rich. Eq. (S. C.) 155 ; and 
 the genuineness must be established ; Mc- 
 Cleskey's Adm'rs v. Leadbetter, 1 Ga. 551; 
 mere antiquity is not enough if the paper 
 appears defective upon its face ; Reaume v. 
 Chambers, 22 Mo. 36; Williams v. Bass, 22 
 Vt 352 ; mere production is not sufficient ; 
 Fogal v. Pirro, 23 N. Y. Super. Ct. 100 ; when 
 no consideration is expressed and the words 
 "this indenture" are omitted, it is insuffi- 
 cient; Gitting's Lessee v. Hall, l.Har. & J. 
 (Md.) 14, 2 Am. Dec. 502. Deeds were admit- 
 ted, though defective in form and execution, 
 in Hoge v. Hubb, 94 Mo. 4S9, 7 S. W. 443; 
 Hill v. Lord, 48 Me. 83; White v. Hutchings, 
 40 Ala. 253, 88 Am. Dec. 766. 
 
 ANCIENTS. Gentlemen in the Inns of 
 Courts who are of a certain standing. 
 
 In the Middle Temple, all who have passed their 
 readings are termed ancients. In Gray's Inn, the 
 ancients are the oldest barristers ; besides which, 
 the society consists of benchers, barristers, and 
 students; in the Inns of Chancery, it consists of 
 ancients and students or clerks. 
 
 The Council of Ancients was the upper 
 Chamber of the French legislature under the 
 constitution of 1795, consisting of 250, each 
 required to be at least forty years old. 
 
 ANCIENTY. Eldership; seniority. Used 
 in the statute of Ireland, 14 Hen. VIII; 
 Cowel. 
 
 ANCILLARY (Lat. ancilla, a handmaid). 
 Auxiliary, subordinate. 
 
 As it is beneath the dignity of the king's courts 
 to be merely ancillary to other inferior jurisdic- 
 tions, the cause, when once brought there, receives 
 its final determination ; 3 Bla. Com. 98. 
 
 Used of deeds, and also of an administration of 
 an estate taken out in the place where assets are 
 situated, which is subordinate to the principal ad- 
 ministration, which is that of the domicil; 1 Story. 
 Bq. Jur. 13th ed. § 683. See Administration. And 
 In the same way In the case of receiverships. See 
 Receiver. 
 
 ANCIPITIS USUS (Lat). Of use for va- 
 rious purposes. 
 
 As it is impossible to ascertain the final use of an 
 article ancipitis usus, it is not an injurious rule 
 which deduces the final use from its immediate des- 
 tination; 1 Kent 140. 
 
 AND. A conjunction connecting words or 
 phrases expressing the idea that the latter is 
 to be added to or taken along with the first
 
 AND 
 
 195 
 
 ANGARY, RIGHT OF 
 
 It is said to be equivalent to "as well as"; 
 Porter v. Moores, 4 Heisk. (Tenn.) 16. 
 
 It is sometimes construed as meaning "or," 
 and has been so treated in the construction 
 of statutes; Bay State Iron Co. v. Goodall, 
 39 N. H. 223, 75 Am. Dec. 219; U. S. v. 
 Fisk, 3 Wall. (U. S.) 445, 18 D. Ed. 243; 1 
 U. C. Q. B. 357, deeds; Jackson v. Topping, 
 1 Wend. (N. Y.) 388, 19 Am. Dec. 515 ; reso- 
 lutions of a corporate board of directors; 
 Brown v. Furniture Co., 58 Fed. 286, 7 C. C. 
 A. 225, 22 L. R. A. 817 (per Taft, C. J.) ; and 
 wills; Sayward v. Say ward, 7 Greenl. (Me.) 
 210, 22 Am. Dec. 191 ; 1 Ves. 217 ; 7 Id. 453 ; 4 
 Bligh U. R. 321; Jackson v. Blanshan, 6 
 Johns. (N. Y.) 54, 5 Am. Dec. 188 (per Kent, 
 O. J.) ; Janney v. Sprigg, 7 Gill (Md.) 197, 
 48 Am. Dec. 557, where the cases are re- 
 viewed, as also in a note thereto in 48 Am. 
 Dec. 565. 
 
 That the power to change the words is 
 not arbitrary, but only to effectuate the in- 
 tention, see Armstrong v. Moran, 1 Bradf. 
 Surr. (N. Y.) 314. 
 
 The character & has been recognized as 
 "sanctioned by age and good use for per- 
 haps centuries, and is used even at this 
 day in written instruments, in daily transac- 
 tions, and with such frequency that it may 
 be said to be a part of our language" ; Brown 
 v. State, 16 Tex. App. 245. So the abbrevia- 
 tion &c. is said to have "been naturalized in 
 English for ages," and was constantly used 
 by Lord Coke without a suggestion from any 
 quarter that it is not English ; Berry v. Os- 
 born, 28 N. H. 279. 
 
 See Ob. 
 
 ANDROLEPSY. The taking by one nation 
 of the citizens or subjects of another in or- 
 der to compel the latter to do justice to the 
 former. Wolffius, § 1164; Molloy, de Jure 
 Mar. 26. 
 
 AN EC I US (Lat. Spelled also wsnecius, 
 enitius, ceneas, eneyus Fr. aisne). The eld- 
 est-born ; the first-born ; senior, as contrast- 
 ed with the puis-ne (younger); Burrill, Law 
 Diet. 99 ; Spelman, Gloss. /Esnecia. 
 
 ANGARIA. In Roman and Feudal Law. A 
 service exacted by the government for public 
 purposes; in particular, the right of a pub- 
 lic officer to require the service of vehicles 
 or ships; personal service exacted from a 
 villein by his lord. Dig. 50, 4, 18, § 29 ; Spel- 
 man, Gloss. 
 
 ANGARY, RIGHT OF. In International 
 Law. Formerly the right (jus angaria?) 
 claimed by a belligerent to seize merchant 
 vessels in the harbors of the belligerent and 
 to compel them, on payment of freight, to 
 transport troops and supplies to a designated 
 port. It was frequently exercised by Louis 
 XIV. of France, but as a result of specific 
 treaties entered into by states not to exercise 
 the right, it has now come to be abandoned. 
 2 Opp. 446. 
 
 At the present day, the right of a bellig- 
 erent to appropriate, either for use, or for 
 destruction in case of necessity, neutral prop- 
 erty temporarily located in his own territory 
 or in that of the other belligerent The prop- 
 erty may be of any description whatever, 
 provided the appropriation of it be for mili- 
 tary or naval purposes. 
 
 Requisition of neutral property is justified 
 by military necessity, and accordingly the 
 right of angary is a belligerent right, al- 
 though the claim of the neutral owner to in- 
 demnity properly comes under the law of 
 neutrality (q. v.). 
 
 An indirect recognition, a fortiori, of the 
 duty of the belligerent to pay indemnity may 
 be found in Arts. 52-53 of IV Hague Conf. 
 1907, which requires the payment of such in- 
 demnity when private enemy property is 
 requisitioned. Art. 19 of V Hague Conf. 
 1907, provides that railway material coming 
 from the territory of neutral powers shall 
 not be requisitioned, except in case of abso- 
 lute necessity, and neutral powers may, un- 
 der similar necessity, retain railway ma- 
 terial coming from the territory of the bel- 
 ligerent, due compensation being made by 
 both sides. 
 
 ANGEL. An ancient English coin, of the 
 value of ten shillings sterling. Jacobs, Law 
 Diet.; Cunningham. 
 
 AN GILD (Sax.). The bare, single valua- 
 tion or estimation of a man or thing, accord- 
 ing to the legal estimates. 
 
 When a crime was committed, before the 
 Conquest, the angild was the money com- 
 pensation that the person who had been 
 wronged was entitled to receive. Maitl. 
 Domesday Book & Beyond 274. 
 
 The terms twigild, trigild, denote twice, thrice, 
 etc. angild. Leges Ince, c. 20; Cowell. 
 
 ANHLOTE (Sax.). A single tribute or 
 tax. Cunningham. The sense is, that every 
 one should pay, according to the custom of 
 the country, Ms respective part and share 
 Spelman, Gloss. 
 
 ANIENS. Void; of no force. Fitzherbert, 
 Nat. Brev. 214. 
 
 ANIENT (Fr. aneantir). Abrogated, or 
 made null. Littleton, § 741. 
 
 ANIMAL. Any animate being which la 
 not human, endowed with the power of vol- 
 untary motion. 
 
 Domitce are those which have been tamed 
 by man ; domestic. 
 
 Fer& natural are those which still retain 
 their wild nature. 
 
 A man may have an absolute property In 
 animals of a domestic nature; 2 Mod. 319 ; 2 
 Bla. Com. 390; but not so in animals ferce 
 natures, which belong to him only while in 
 his possession; Wallis v. Mease, 3 Binn. (Pa.) 
 546; Pierson v. Post, 3 Caines (N. Y.) 175, 2 
 Am. Dec. 264; Gillet v. Mason, 7 Johns. (N. 
 Y.) 16; State v. Murphy, 8 Blackf. (Ind.)
 
 ANIMAL 
 
 196 
 
 ANIMAL. 
 
 498 ; 2 B. & C. 934. Yet animals which are 
 sometimes J era; naturw may be tamed so as 
 to become subjects of property; as an otter; 
 State v. House, 65 N. C. 315, 6 Am. Rep. 744; 
 pigeons which return to their house ; 2 Den. 
 Cr. Cas. 362; 4' C. & P. 131; Com. v. Chace, 
 9 Pick. (Mass.) 15, 19 Am. Dec. 348; or 
 pheasants ha'tched under a hen; 1 Fost. & 
 F. 350. And the flesh of animals ferce na- 
 tures mav be the subject of larceny; 3 Cox, 
 Cr. Cas/572; 1 Den. Cr. Cas. 501; 2 C. & K. 
 9S1 ; State v. House, 65 N. C. 315, 6 Am. Rep. 
 744. 
 
 Animals ferce naturae were considered by 
 the Roman law as belonging in common to 
 all the citizens of the state; Geer v. Con- 
 necticut, 161 U. S. 319, 16 Sup. Ct. 600, 40 
 L. Ed. 793; and by the common law the 
 property in game was based on common own- 
 ership and subject to governmental author- 
 ity ; 2 Bla. Com. 14. One may have the 
 privilege of hunting wild animals to the ex- 
 clusion of other persons; 7 Co. 18 a; but only 
 by grant of the king or of his officers or by 
 prescription; id. (the case of the swans). In 
 the United States the ownership of such ani- 
 mals is vested in the state, not as proprietor, 
 but in its sovereign capacity, as representing 
 the people and for their benefit; Ex parte 
 Maier, 103 Cal. 476, 37 Pac. 402, 42 Am. St. 
 Rep. 129; State v. Repp, 104 la. 305, 73 N. 
 W. 829, 40 L. R. A. 687, 65 Am. St. Rep. 463. 
 It alone has power to control the killing 
 and ownership of wild game; Geer v. Con- 
 necticut, 161 U. S. 532, 16 Sup. Ct. 600, 40 
 L. Ed. 793. Animals wild by nature are sub- 
 jects of ownership while living only when 
 on the land of the person claiming them; 
 Cal. Civ. Code § 656. Under this provision it 
 was held that one has a right in wild game 
 birds within his game preserves, which en- 
 titles him to protect them against trespassers; 
 Kellogg v. King, 114 Cal. 378, 46 Pac. 166, 55 
 Am. St. Rep. 66. Deer, when reclaimed and 
 enclosed, are property, Dietrich v. Fargo, 194 
 N. Y. 359, 87 N. E. 518, 22 L. R. A. (N. S.) 
 696. 
 
 Bees are ferce naturw; Goff v. Kilts, 15 
 Wend. (N. Y.) 550; but when hived or re- 
 claimed one may have a qualified property 
 in them; Goff v. Kilts, 15 Wend. (N. Y.) 550; 
 Rexroth v. Coon, 15 R. I. 35, 23 Atl. 37, 2 Am. 
 St. Rep. 863; because they "have a local 
 habitation, more often in a tree than else- 
 where, and while there they may be said to 
 be within control, because the tree may at 
 any time be felled. But the right to cut it 
 down is in the owner of the soil, and there- 
 fore such property as the bees are susceptible 
 of is in him also"; Cooley on Torts 435; 
 State v. Repp, 104 la. 305, 73 N. W. 829, 40 
 L. R. A. 687, 65 Am. St. Rep. 463. The mere 
 finder of them on the land of another ac- 
 quires no title to the tree or the bees; State 
 T. Repp, 104 la. 305, 73 N. W. 829, 40 L. 
 R. A. 687, 65 Am. St. Rep. 463; Gillet v. 
 Mason, 7 Johns. (N. Y.) 16 ; Merrils T. Good- 
 
 win, 1 Root (Conn.) 209. In a suit against 
 the owner of bees for injuries caused by 
 them to horses, it was held that however it 
 might have been anciently, in modern days 
 the bee has become almost as completely do- 
 mesticated as the ox or the cow; Earl v. 
 Van Alstine, 8 Barb. (N. Y.) 630. 
 
 But the ancient rule that animals ferce 
 naturce can only be the subject of property 
 while in actual possession, and that loss of 
 possession without intention to return on the 
 part of the animal carries with it the loss of 
 property by the owner; Mullett v. Bradley, 
 24 Misc. Rep. (N. Y.) 695, 53 N. Y. Supp. 781 ; 
 seems inconsistent with the related law gov- 
 erning the responsibility of owners for inju- 
 ries done by such animals ; 12 Harv. L. Rev. 
 346; as where a bear slipped his collar and 
 in his escape to the woods injured a man, 
 the owner was held liable; Vredeuburg v. 
 Behan, 33 La. Ann. 627; but where a sea lion 
 escaped from the possession of its owner and 
 was abandoned by him and recaptured a 
 year afterwards seventy miles from the place 
 of its escape, the owner was held to have lost 
 his property, expressly on the ground of loss 
 of possession; Mullett v. Bradley, 24 Misc. 
 695, 53 N. Y. Supp. 781; 12 Harv. L. Rev. 
 346. In Manning v. Mitcherson, 69 Ga. 447, 
 47 Am. Rep. 764, it was said that to hold that 
 wild animals of a menagerie, should they es- 
 cape from their owner's immediate posses- 
 sion, would belong to the first person who 
 should subject them to his dominion, would 
 be an injustice. 
 
 The common law recognized a property in 
 dogs; State v. Sumner, 2 Ind. 377; Chapman 
 v. Decrow, 93 Me. 378, 45 Atl. 295, 74 Am. 
 St. Rep. 357; Uhlein v. Comack, 109 Mass. 
 273; and in the United States it is generally 
 recognized by the law; Fisher v. Badger, 95 
 Mo. App. 2S9, 69 S. W. 26; Harrington v. 
 Hall, 6 Pennewill (Del.) 72, 63 Atl. 875; Jones 
 v. R. Co., 75 Miss. 970, 23 South. 358; Reed 
 v. Goldneck, 112 Mo. App. 310, 86 S. W. 1104. 
 Such property, however, is held to be of a 
 peculiar character; Chunot v. Larson, 43 
 Wis. 536, 28 Am. Rep. 567 ; and of a qualified 
 nature; Woolf v. Chalker, 31 Conn. 121, 81 
 Am. Dec. 175; City of Hagerstown v. Wit- 
 mer, 86 Md. 293, 37 Atl. 965, 39 L. R. A. 649. 
 The owner may recover for its wrongful in- 
 jury; Louisville & N. R. Co. v. Fitzpatrick, 
 129 Ala. 322, 29 South. 859, 87 Am. St. Rep. 
 64; Chapman v. Decrow, 93 Me. 378, 45 Atl. 
 295, 74 Am. St. Rep. 357; Moore v. Electric 
 Co., 136 N. C. 554, 48 S. E. 822, 67 L. R. A. 
 470; or its conversion ; Graham v. Smith, 
 100 Ga. 434, 28 S. E. 225, 40 L. R. A. 503, 62 
 Am. St. Rep. 323; or unlawful killing; 
 Wheatley v. Harris, 4 Sneed (Tenn.) 468, 70 
 Am. Dec. 258; Smith v. Ry. Co., 79 Minn. 
 254, 82 N. W. 577; State v. Coleman, 29 Utah, 
 417, 82 Pac. 465; Harrington v. Hall, 6 Pen- 
 newill (Del.) 72, 63 Atl. 875. At common law 
 it was not larceny to steal a dog ; 4 Bla. 
 Com. 235; Mullaly t. People, 86 N. Y. 365;
 
 ANIMAL 
 
 197 
 
 ANIMAL 
 
 State v. Jenkins, 78 N. C. 481 ; Jenkins v. 
 Ballantyne, 8 Utah, 245, 30 Pac. 700, 1G L. 
 R. A. 089 (see note in 15 Am. Rep. 350) ; be- 
 cause larceny was a crime punishable by 
 death, and it was thought not fit that a man 
 should die for a dog; Brainard v. Knapp, 9 
 Misc. 207, 29 N. Y. Supp. 078; but by statute 
 in many of the states it is now made larceny; 
 Com. v. Depuy, 148 Pa. 201, 23 Atl. S90 ; Pat- 
 ton v. State, 93 Ga. Ill, 19 S. E. 734, 24 L. 
 R. A. 732; Johnson v. McConnell, 80 Cal. 545, 
 22 Pac. 219; Harrington v. Miles, 11 Kan. 
 481, 15 Am. Rep. 355; City of Carthage v. 
 Rhodes, 101 Mo. 175, 14 S. W. 181, 9 L. R. 
 A. 352; State v. Mease, 09 Mo. App. 581; 
 Harris v. Eaton, 20 R. I. 84, 37 Atl. 308. 
 There is a conflict of opinion as to whether 
 statutes against taking goods or other prop- 
 erty shall be construed to include dogs. In 
 subjecting them to taxation they are there- 
 by made the subject of larceny under the 
 generic term personal property or chattel; 
 Com. v. Hazelvvood, 84 Ky. 081, 2 S. W. 489; 
 and see Hurley v. State, 30 Tex. App. 335, 17 
 S. W. 455, 28 Am. St. Rep. 910; Mullaly v. 
 People, 80 N. Y. 305; but by other courts it 
 is held that taxes are not imposed on the 
 theory that they are property, but as police 
 regulations; State v. Doe, 79 Ind. 9, 41 Am. 
 Rep. 599; State v. Lymus, 20 Ohio St. 400, 
 20 Am. Rep. 772. 
 
 A statute requiring dogs to be put on the 
 assessment rolls, and limiting any recovery 
 by the owner to the value fixed by himself 
 for the purpose of taxation, is constitutional; 
 Sentell v. Railroad Co., 1G0 U. S. 098, 17 Sup. 
 Ct. 093, 41 L. Ed. 1109. In this case the ani- 
 mal was a valuable Newfoundland bitch kept 
 by the owner for breeding purposes and was 
 killed by a"n electric car. The court held 
 that the statute put a premium upon valuable 
 dogs by giving them a recognized position and 
 permitting the owner to put his own valua- 
 tion upon them. 
 
 They are embraced in the term "all brute 
 creatures"; State v. Giles, 125 Ind. 124, 25 
 N. E. 159; or "animals"; Warner v. Perry, 
 14 Hun (N. Y.) 337; State v. Coleman, 29 
 Utah, 417, 82 Pac. 405; or "domestic ani- 
 mal"; Shaw v. Craft, 37 Fed. 317 (contra, 
 State v. Harriman, 75 Me. 502, 40 Am. Rep. 
 423); and have been held to be included in 
 the term "chattel"; Com. v. Hazelwood, 84 
 Ky. 081. 2 S. W. 489; see 40 L. R. A. 503 n.; 
 not within the term "other beasts" ; U. S. v. 
 Gideon, 1 Minn. 292 (Gil. 226). 
 
 They are not considered as being upon the 
 same plane with horses, cattle, sheep and 
 other domesticated animals (see State v. 
 Harriman, 75 Me. 502), but rather in the 
 category of cats, monkeys, parrots, singing 
 birds, etc., kept for pleasure. They are 
 peculiar in that they differ among themselves 
 more widely than any other class of animals, 
 and can hardly be said to have a characteris- 
 tic common to the eutire race. They stand 
 between animals ferw natures, in which, until 
 
 killed, there Is no property, and do ic 
 animals, in which the right of | 
 complete; Sentell v. R. Co., 166 ' 
 17 Sup. Ct. 693, 41 L. Ed. 11 
 
 A dog cannot lawfully be killed merely for 
 trespassing; Marshall v. Blackshire, 4 
 475; Brent v. Kimball, 00 111. 211, 14 Am. 
 Rep. 35; Dinwiddle v. State, 103 ind. 101, 'J 
 N. e. 290; Bowers v. Horen, 93 Mich. 120, 53 
 N. W. 535, 17 L. R. A. 773, 32 Am. St 
 513; Fenton v. Bisel, 80 Mo. App. 135; but 
 killing a trespassing dog is Justifiable if it 
 lie necessary to protect one's property; King 
 v. Kline, 6 Pa. 318; Fisher v. Badger, 95 
 Mo. App. 289, 69 S. W. 20; and where dogs 
 congregated on one's premises at night and 
 by their noise interfered with the rest of a 
 family, shooting among them was justified, 
 as a reasonable and necessary means to pro- 
 tect the family from a nuisance; Hubbard 
 v. Preston, 90 Mich. 221, 51 N. \Y. 209, 15 L. 
 R. A. 249, 30 Am. St. Rep. 426. 
 
 The owner of any animal, tame or wild, 
 is liable for the exercise of such dangerous 
 tendencies as generally belong to its nature. 
 but not of any nut in accordance with its 
 nature, unless the owner or keeper knew, or 
 ought to have known, of the existence of 
 such dangerous tendency; Whart. NegL § 
 923. To recover for damages inflicted by a 
 ferocious dog, it is not necessary actually to 
 prove that it lias bitten a person before; L. 
 R. 2 C. P. 1 ; Linnehau V. Sampson, 126 Mass. 
 511, 30 Am. Rep. 092; Rider v. White, 65 N. 
 Y. 54, 22 Am. Rep. 600; Howe v. Ehrniann- 
 traut, 92 Minn. 17, 99 N. W. 211; Barclay v. 
 Ilartman, 2 Maiv. (Del.) 351, 43 Atl. 174; 
 McConnell v. Lloyd, 9 Pa. Super. Ct. 25. 
 
 The owner of a mischievous animal, known 
 to him to be so, is responsible, when he per- 
 mits him to go at large, for the damage he 
 may do; Spring Co. v. Edgar, 99 U. S. 045, 
 25 L. Ed. 487; Lyons v. Merrick, lor, Mass. 
 71; Partlow v. Haggarty, 35 Ind. 178 ; Kight- 
 linger v. Egan, 75 111. 141; Meibus v. Dodge, 
 38 Wis. 300, 20 Am. Rep. 0; Snyder v. Pat- 
 terson, 101 Pa. 98, 28 Atl. 1000; Shaw v. 
 Craft, 37 Fed. 317; Harvey v. Buchanan, 121 
 Ga. 384, 49 S. E. 281; Burleigh & Jackson 
 v. Hines, 124 la. 199, 99 N. W. 723; he is 
 liable, though not negligent, in the matter 
 of his escape from a close; Hammond v. 
 Melton, 42 111. App. 186; Vredenburg v. 
 Behan, 33 La. Ann. 627; Manger v. Shipinan, 
 30 Neb. 352, 40 N. W. 527: 19 Out. Rep. 39. 
 In Muller v. McKesson, 73 N. Y. 195, 29 Am. 
 Rep. 123, it is said that though it may I.e. in 
 a certain sense, that the action for injury 
 by vicious animals is based upon negligence. 
 such negligence consists not in the manner of 
 keeping the animal, or the care exercised in 
 respect to confining him. but in the fact that 
 he is ferocious and the owner knows it The 
 negligence consists in keeping such an ani- 
 mal. See Speckmann v. Kreig, 79 Mo. App. 
 376. This rule is old: "If an ox gore a man 
 or woman, that they die; then the ox shall
 
 ANIMAL 
 
 193 
 
 ANIMAL 
 
 be surely stoned, and his flesh shall not be 
 eaten; but the owner of the ox shall be quit. 
 But if the ox were wont to push with his 
 horn in time past, and it hath been testified 
 to his owner, and he hath not kept him in, 
 but that he hath killed a man or a woman; 
 the ox shall be stoned, and his owner also 
 shall be put to death." Exodus xxi, 28, 29. 
 
 One knowingly harboring a vicious and 
 dangerous dog is liable for damages sustain- 
 ed by others from its bite; McGurn v. Grub- 
 nau, 37 Pa. Super. Ct. 454, 459. In [1908] 
 2 K. B. Div. 352, Channel, J., said that 
 keeping a dog known to be savage stands on 
 the same footing as keeping a wild beast. It 
 is enough if he occasionally attacks human 
 beings without provocation ; Merritt v. Mat- 
 chett, 135 Mo. App. 176, 115 S. W. 1066; the 
 owner must have had actual knowledge ; 
 Muller v. Shufeldt, 114 N. Y. Supp. 1012; 
 Alexander v. Crosby, 143 la. 50, 119 N. W. 
 717; but constructive knowledge has been 
 held sufficient; Merritt v. Matchett, 135 Mo. 
 App. 176, 115 S. W. 1066; the mere fact of 
 the attack does not raise a presumption that 
 the dog was vicious, but it can be established 
 by proof that on previous occasions it had 
 attacked people without provocation; id.; 
 and one who has long harbored a vicious dog 
 is presumed to know its propensities ; id. 
 Running out and barking at horses and per- 
 sons passing is not, as a matter of law, evi- 
 dence of viciousness; Muller v. Shufeldt, 114 
 N. Y. Supp. 1012. Where one kept dogs of 
 the same family and appearance, a person 
 bitten by one of them is not required to prove 
 which one, nor to prove that previous at- 
 tacks on others were made by the same dog; 
 McGurn v. Grubnau, 37 Super. Ct. Pa. 454, 
 459. 
 
 On the other hand it has been held that 
 when wild animals are kept for a purpose 
 recognized as not censurable, all that can be 
 demanded of their keeper is that he shall 
 take that superior precaution to prevent 
 their doing mischief which their propensities 
 in that direction justly demand of him ; Cool- 
 ey, Torts (3d ed.) 707, n. ; 11 L. R. A. (N. 
 S.) 748, n. One who knowingly, voluntarily 
 and unnecessarily places himself within 
 reach of a ferocious animal which is chained 
 up cannot recover for injuries received; 
 Ervin v. Woodruff, 119 App. Div. 603, 103 N. 
 Y. Supp. 1051; Molloy v. Starin, 113 App. 
 Div. 852, 99 N. Y. Supp. 603. An injunction 
 will lie against keeping a vicious dog with- 
 out appropriate restraint; it is a nuisance; 
 Rider v. Clarkson, 77 N. J. Eq. 469, 78 Atl. 
 676, 140 Am. St Rep. 614. 
 
 Any person may justify the killing of fero- 
 cious animals; Leonard v. Wilkins, 9 Johns. 
 (N. Y.) 233; Putnam v. Payne, 13 Johns. (N. 
 Y.) 312; Nehr v. State, 35 Neb. 638, 53 N. 
 W. 589, 17 L. R. A. 771. 
 
 Running at large is defined as strolling 
 about without restraint or confinement. 
 Morgan v. People, 103 111. App. 257. 
 
 An animal untethered and unattended in 
 the street in front of its owner's premises 
 was held to be running at large ; Decker v. 
 McSorley, 111 Wis. 91, 86 N. W. 554; or tres- 
 passing upon the premises of another and 
 not under the immediate control of the own- 
 er; Gilbert v. Stephens, 6 Okl. 673, 55 Pac. 
 1070; but a domestic animal which has es- 
 caped from its inclosure without the fault of 
 the owner; Briscoe v. Alfrey, 61 Ark. 196, 32 
 S. W. 505, 30 L. R. A. 607, 54 Am. St. Rep. 
 203; Myers v. Lape, 101 111. App. 182; and 
 to recover which such owner is making rea- 
 sonable efforts, is not running at large ; My- 
 ers v. Lape, 101 111. App. 182. 
 
 It is unlawful to kill a dog because he is 
 in the street outside of a poultry yard, in- 
 closed by an impassable fence, though the 
 dog had harassed the poultry before, or be- 
 cause of his predatory habits ; State v. 
 Smith, 156 N. C. 628, 72 S. E. 321, 36 L. R, 
 A. (N. S.) 910. 
 
 It is the duty of the owner of domestic 
 animals to keep them upon his own premises; 
 Klenberg v. Russell, 125 Ind. 531, 25 N. E. 
 596 ; Robinson v. R. Co., 79 Mich. 323, 44 N. 
 W. 779, 19 Am. St. Rep. 174. It is the nature 
 of cattle and other animals to stray and to 
 do damage, and the owner is bound to keep 
 them from straying at his peril ; Haigh v. 
 Bell, 41 W. Va. 19, 23 S. E. 666, 31 L. R. A. 
 131. The common law doctrine is that the 
 owner of cattle must fence them in; Taber 
 v. Cruthers, 59 Hun 619, 13 N. Y. Supp. 446; 
 Bulpit v. Matthews, 145 111. 345, 34 N. E. 525, 
 22 L. R. A. 55. He is not compelled to fence 
 the cattle of others out. Owing to change of 
 circumstances, due in part to the settlement 
 of a new country, in. many states a different 
 rule prevails. The owner of land must fence 
 out the cattle of others. He need not fence 
 in his own. He takes the risk of loss of or 
 injury to them from their running at large 
 and wandering into danger; Haigh v. Bell, 
 41 W. Va. 19, 23 S. E. 666, 31 L. R. A. 131; 
 Sprague v. R. Co., 6 Dak. 86, 50 N. W. 617 ; 
 Buford v. Houtz, 133 U. S. 320, 10 Sup. Ct. 
 305, 33 L. Ed. 618; Kerwhaker v. R. Co., 3 
 Ohio St. 179, 62 Am. Dec. 246 ; Muir v. Thix- 
 ton, 119 Ky. 753, 78 S. W. 466. To leave un- 
 cultivated lands uninclosed is an implied li- 
 cense to cattle to graze on them ; Kerwhaker 
 v. R. Co., 3 Ohio St. 179, 62 Am. Dec. 246; 
 Seeley v. Peters, 5 Gilman (111.) 142; Comer- 
 ford v. Dupuy, 17 Cal. 308; Chase v. Chase, 
 15 Nev. 259 ; Delaney v. Errickson, 10 Neb. 
 492, 6 N. W. 600, 35 Am. Rep. 487 ; Burgwyn 
 v. Whitfield, 81 N. C. 261; Moore v. White, 
 45 Mo. 206; Little Rock & F. S. Ry. Co. t. 
 Finley, 37 Ark. 562; Lee County v. Yar- 
 brough, 85 Ala. 590, 5 South. 341; Frazier v. 
 Nortinus, 34 la. 82; Faut v. Lyman, 9 Mont. 
 61, 22 Pac. 120; Meyers v. Menter, 63 Neb. 
 427, 88 N. W. 662. The keeping of live stock 
 is usually under police regulation ; Reser v. 
 Umatilla County, 48 Or. 326, 86 Pac. 595, 120 
 Am. St. Rep. 815 ; and in many states stat-
 
 ANIMAL 
 
 199 
 
 ANIMAL 
 
 utes forbidding animals to run at large, or 
 restricting them or limiting such rights, are 
 in force. By statute in Illinois the common 
 law liability is now restored; Fredrick v. 
 White, 73 111. 500; as it is in Pennsylvania; 
 Barber v. Mensch, 157 Pa. 300, 27 Atl. 708. 
 A statute in Idaho prohibits sheep from 
 grazing on the public domain within two 
 miles of a dwelling house. This was held 
 not an unreasonable discrimination against 
 the sheep industry, but rather as a matter of 
 protection to the owners of other grazing 
 cattle. ;is cattle will not graze and will not 
 thrive upon lands where sheep are grazed to 
 any extent; Bacon v. Walker, 204 U. 8. "11, 
 27 Sup. Ct. 289, 51 L. Ed. -!!>!>; and the act 
 was held to be a valid exercise of the police 
 power; Sifers v. Johnson, 7 Ida. 798, 65 Pac. 
 709, 54 L. R. A. 785, 97 Am. St. Rep. 271; 
 Sweet v. Ballentyne, 8 Ida. 431, G9 Pac. 995. 
 See Fence. 
 
 In the western states cattle are required 
 to be branded. Such marks and brands are 
 evidence of ownership and are a matter of 
 statutory regulation, and the court will take 
 judicial notice that in some states cattle run 
 at large in great stretches of country with no 
 other means of determining their separate 
 ownership than by the marks and brands 
 upon them ; New Mexico v. R. Co., 203 U. S. 
 51, 27 Sup. Ct. 1, 51 L. Ed. 78. 
 
 As to the right to impound estrays, see 
 Estray; Pound. 
 
 Acts of congress have established a bureau 
 of animal industry, and the Secretary of 
 Agriculture is authorized to use such means 
 as" he may deem necessary for the prevention 
 of the spread of pleuro-pneumonia and other 
 diseases of animals. Carriers are forbidden 
 to receive for transportation any live stock 
 affected by any contagious or infectious dis- 
 ease. A state statute for the protection of 
 domestic animals from contagious diseases is 
 not a regulation of commerce between the 
 states simply because it may incidentally or 
 indirectly affect such commerce ; Missouri, 
 K. & T. Ry. v. Ilaber, 169 U. S. 627, 18 Sup. 
 Ct 488, 42 L. Ed. 878, citing Hennington v. 
 Georgia, 163 U. S. 299, 16 Sup. Ct. 1086, 41 
 L. Ed. 166; New York, N. H. & II. R. R. v. 
 New York, 165 U. S. 628, 17 Sup. Ct. 418, 41 
 L. Ed. 853 ; and where a statute provides a 
 right of action for injuries arising from dis- 
 ease communicated to domestic cattle by cat- 
 tle of a particular kind brought into a state, 
 it does not conflict with any regulation es- 
 tablished under the authority of congress to 
 prevent the spread of contagious or infec- 
 tious diseases from one state to another;' 
 Missouri, K. & T. Ry. v. Haber, 160 U. S. 627, 
 18 Sup. Ct 488, 42 L. Ed. 878. See Com- 
 merce; Inspection Laws; Common Cab- 
 biers. 
 
 See Agistor ; Accession ; Cruelty. 
 Animals of a base nature are those ani- 
 mals which, though they may be reclaimed. 
 are not such that at common law a larceny 
 
 may be committed of them, by reason of the 
 baseness of their nature. 
 
 Some animals which are now usually tamed come 
 within this class, as dogs and cats ; and others 
 which, though wild by nature and often reclaimed 
 by art and industry, clearly fall within the Bame 
 rule, as bears, foxes, apes, monkeys, ferrets, and the 
 like; Coke, 3d Inst. 109; 1 Hale, PI. Cr. 511, 512; 
 1 Hawk. PI. Cr. 33, § 36 ; 4 Bla. Com. 236; 2 East, 
 PI. Cr. 614. See 1 Wms. Saund. 84, note 2. 
 
 ANIMAL INDUSTRY, BUREAU OF. See 
 
 IIkalth. 
 
 ANIM0 (Lat). With intention. See Ani- 
 mus, used with various other words. 
 
 ANIMUS (Lat, mind). The intention 
 with which an act is done. See Imik.nt. 
 
 ANIMUS CANCELLANDI. An intention 
 to destroy or cancel. See Cancellation. 
 
 ANIMUS CAPIENDI. The intention to 
 take. 4 C. Rob. Adm. 126, 155. 
 
 ANIMUS FURANDI. The intention to 
 steal. 
 
 In order to constitute larceny, the thief must take 
 the property animo furandi; but this is expressed 
 in the definition of larceny by the word felonious ; 
 Coke, 3d Inst. 107; Hale, PI. Cr. 503; 4 Bla. Com. 
 229. See 2 Russell, Crimes 96; Rapalje, Larceny, 
 § 18. When the taking of property is lawful, al- 
 though it may afterwards be converted animo fu- 
 randi to the taker's use, it is not larceny; Bacon, 
 Abr. Felony, C ; People v. Anderson, 14 Johns. (N. 
 Y.) 294, 7 Am. Deor. 462; Ry. & M. 160, 137; State v. 
 Shermer, 55 Mo. 83; [1S95] 2 Ir. 709. See Larceny; 
 Mens Rea ; Motive ; Intent. 
 
 ANIMUS LUC RAND I. The intention to 
 gain or profit. 3 Kent o57. 
 
 ANIMUS MANENDI. The intention of re- 
 maining. 
 
 To acquire a domicil, the party must have his 
 abode in one place, with the intention of remaining 
 there ; for without such intention no new domicil 
 can be gained, and the old will not be lost. See 
 Domicil. 
 
 ANIMUS M0 RAND I. The intention to re- 
 main or delay. 
 
 ANIMUS RECIPIENDI. The intention of 
 receiving. 
 
 ANIMUS REPUBLICANDI. The intention 
 of republishing (as a will). 
 
 ANIMUS RESTITUENDI. An intention of 
 restoring. Fleta, lib. 3, c. 2, § 3. 
 
 ANIMUS REVERTENDI. The intention 
 of returning. 
 
 A man retains his domicil If he leaves it animo 
 rcvertendi; In re Miller's Estate, 3 Rawle (Pa.) 
 312, 24 Am. Dec. 345 ; 4 Bla. Com. 225 ; 2 Russ. Cr. 
 23; Poph. 42, 52; 4 Coke 40. See Domicil. 
 
 ANIMUS REVOCANDI. An intention to 
 revoke. 1 Powell, Dev. 695. 
 
 ANIMUS TESTANDI. An Intention to 
 make a testament or will. 
 
 This is required to make a valid will ; for, what- 
 ever form may have been adopted, if there was no 
 animus testandi, there can be no will. An idiot, 
 for example, can make no will, because he can have 
 no intention; Beach, Wills 77.
 
 ANNALES 
 
 200 
 
 ANNONA 
 
 ANNALES. A title given to the Tear 
 Books. Burrill, Law Diet Young cattle; 
 yearlings. Cowell. 
 
 ANNALS. Masses said in the Romish 
 church for the space of a year or for any 
 other time, either for the soul of a person 
 deceased, or for the benefit of a person liv- 
 ing, or for both. Aylif. Parerg. 
 
 ANNATES. First-fruits paid out of spir- 
 itual benefices to the pope, being the value 
 of one year's profit. Cowell. 
 
 ANNEXATION. The union of one thing 
 to another. 
 
 It conveys the idea, properly, of fastening a 
 smaller thing to a larger; an Incident to a princi- 
 pal. It has been applied to denote the union of 
 Texas to the United States. 
 
 Actual annexation includes every move- 
 ment by which a chattel can be joined or 
 united to the freehold. Mere juxtaposition, 
 or the laying on of an object, however heavy, 
 does not amount to annexation ; Merritt v. 
 Judd, 14 Cal. G4. 
 
 Constructive annexation is the union of 
 such things as have been holden parcel of 
 the realty, but which are not actually an- 
 nexed, fixed, or fastened to the freehold. 
 Sheppard, Touchst. 4G9; Amos & F. Fixt. 
 3d ed. See Fixtures. 
 
 ANNI NUBILES (Lat. marriageable 
 years). The age at which a girl becomes by 
 law fit for marriage; the age of twelve. 
 
 ANNICULUS (Lat). A child of a year 
 old. Calvinus, Lex. 
 
 ANNO DOMINI (Lat in the year of our 
 Lord; abbreviated A. D.). The computation 
 of time from the birth of Christ. 
 
 In a complaint, the year of the alleged of- 
 fence may be stated by "A. D.," followed by 
 words expressing the year; Com. v. Clark, 
 4 Cush. (Mass.) 590. But an indictment or 
 complaint which states the year of the com- 
 mission of the offence in figures only, with- 
 out prefixing the letters "A. D.," is insuffi- 
 cient ; Com. v. McLoon, 5 Gray (Mass.) 91, 
 66 Am. Dec. 354. The letters "A. D.," fol- 
 lowed by figures expressing the year, have 
 been held sufficient ; State v. Hodgeden, 3 Vt. 
 481; State v. Seamons, 1 G. Greene (la.) 
 418; State v. Reed, 35 Me. 4S9, 58 Am. Dec, 
 727 ; 1 Bennett & H. Lead. Cr. Cas. 512 ; but 
 the phrase, or its equivalents, may be dis- 
 pensed with; 12 Q. B. 834; Engleman v. 
 State, 2 Ind. 91, 52 Am. Dec. 494; State v. 
 Munch, 22 Minn. 67; but see Whitesides v. 
 People, Breese (111.) 21. See Whart Prec. 
 4th ed. (2) n. g. ; Year of Our Lord; Indic- 
 tion. 
 
 ANNONA. Barley; corn; grain; a yearly 
 contribution of food, of various kinds, for 
 support 
 
 Annona porcum, acorns; annona frumentum hor- 
 deo admixtum, corn and barley mixed ; annona 
 panis, bread without reference to the amount. Du 
 Cange ; Spelman, Gloss. ; Cowell. 
 
 The term is used in the old English law, 
 and also in the civil law quite generally, to 
 denote anything contributed by one person 
 towards the support of another; as, si quia 
 mancipio annonam dedcrit (if any shall have 
 given food to a slave) ; Du Cange. 
 
 ANNON/E CIVILE S. Yearly rents issuing 
 out of certain lands and payable to monas- 
 teries. 
 
 ANNOTATION. In Civil Law. The an- 
 swers of the prince to questions put to him 
 by private persons respecting some doubtful 
 point of law. See Rescript. 
 
 Summoning an absentee ; Dig. 1. 5. 
 
 The designation of a place of deportation. 
 Dig. 32. 1. 3. 
 
 ANNOYANCE. Discomfort; vexation. It 
 is held to mean something less than nuisance. 
 25 S. J. 30. See Nuisance. 
 
 ANNUAL ASSAY. An annual trial of the 
 gold and silver coins of the United States, to 
 ascertain whether the standard fineness and 
 weight of the coinage is maintained. 
 
 At every delivery of coins made by the coiner to 
 a superintendent, it is made the duty of the super- 
 intendent, in the presence of the assayer, to take 
 indiscriminately a certain number of pieces of each 
 variety for the annual trial of coins, the numoer for 
 gold coins being not less than one piece for each one 
 thousand pieces, or any fractional part of one 
 thousand pieces delivered; and for silver coins, one 
 piece for each two thousand pieces, or any fractional 
 part of two thousand pieces delivered. The pieces 
 so taken shall be carefully sealed up in an envelope, 
 properly labelled, stating the date of the delivery, 
 the number and denominations of the pieces en- 
 closed, and the amount of the delivery from which 
 they were taken. These sealed parcels containing 
 the reserved pieces shall be deposited in a pyx, des- 
 ignated for the purpose at each mint, which shall 
 be under the joint care of the superintendent and 
 assayer, and be so secured that neither can have 
 access to Its contents without the presence of the 
 other, and the reserved pieces in their envelopes 
 from the coinage of each mint shall be transmitted 
 quarterly to the mint at Philadelphia. A record 
 shall also be kept of the number and denomination 
 of the pieces so delivered, a copy of which shall be 
 transmitted quarterly to the director of the mint; 
 Sect. 40, Act of Feb. 12, 1873 ; U. S. R. S. § 3539. 
 
 To secure a due conformity in the gold and silver 
 coins to their respective standards and weights, it 
 is provided by law that an annual trial shall be 
 made of the pieces reserved for this purpose at the 
 mint and its branches, before the judge of the dis- 
 trict court of the United States for the eastern 
 district of Pennsylvania, the comptroller of the cur- 
 rency, the assayer of the assay office at New York, 
 and such other persons as the president shall from 
 time to time designate for that purpose, who shall 
 meet as assay commissioners, on the second Wednes- 
 day In February annually, at the mint in Philadel- 
 phia, to examine and test, in the presence of the 
 director of the mint, the fineness and weight of the 
 coins reserved by the several mints for this pur- 
 pose, and may continue their meetings by adjourn- 
 ment, if necessary ; and if a majority of the com- 
 missioners shall fail to attend at any time appoint- 
 ed for their meeting, then the director of the mint 
 shall call a meeting of the commissioners at such 
 other time as he may deem convenient, and if it 
 shall appear that these pieces do not differ from the 
 standard fineness and weight by a greater quantity 
 than is allowed by law, the trial shall be considered 
 and reported as satisfactory ; but if any greater 
 deviation from the legal standard or weight shall 
 appear, this fact shall be certified to the president
 
 ANNUAL ASSAY 
 
 201 
 
 ANNUITY 
 
 of the United States, and if, on a view of the cir- 
 cumstances of the case, he shall so decide, the offi- 
 cer or officers implicated in the error shall be 
 thenceforward disqualified from holding their re- 
 spective offices; § 48, Act of Feb. 12, 1873 (U. S. R. 
 S. § 3547); id. §§ 49, 50 (R. S. §§ 3548, 3549). As to 
 the standard weight and fineness of the gold and 
 silver coins of the United States, see sections of the 
 last-cited act. The limit of allowance for wastage 
 Is fixed; § 43, Act of Feb. 12, 1873; R. S. § 3542. 
 
 For the purpose of securing a due conformity In 
 the weight of the coins of the United States, the 
 brass troy pound weight procured by the minister of 
 the United States (Mr. Gallatin) at London, in the 
 year 18-7, for the use of the mint, and now in the 
 custody of the director thereof, shall be the stand- 
 ard troy pound of the mint, of the United States, 
 conformably to which the coinage thereof shall be 
 regulated ; and it is made the duty of the director 
 of the mint to procure and safely keep a series of 
 standard weights corresponding to the aforesaid 
 troy pound, and the weights ordinarily employed in 
 the transactions of the mint shall be regulated ac- 
 cording to such standards at least once In every 
 year under his inspection, and their accuracy test- 
 ed annually In the presence of the assay commis- 
 sioners on the day of the annual assay ; Act of 
 Feb. 12, 1873; R. S. § 3548. 
 
 In England, the accuracy of the coinage is re- 
 viewed once in about every four years; no specific 
 period being fixed by law. It is an ancient custom 
 or ceremony, and is called the Trial of the Pyx; 
 which name it takes from the pyx or chest in which 
 the specimen-coins are deposited. These specimen- 
 pieces are taken to be a fair representation of the 
 whole money coined within a certain period. It 
 having been notified to the government that a trial 
 of the pyx is called for, the lord chancellor issues 
 his warrant to summon a jury of goldsmiths who, 
 on the appointed day, proceed to the Exchange 
 Office, Whitehall, and there, in the presence of sev- 
 eral privy councillors and the officers of the mint, 
 receive the charge of the lord chancellor as to 
 their important functions, who requests them to 
 deliver to him a verdict of their finding. The jury 
 proceed to Goldsmiths' Hall, London, where assay- 
 ing apparatus and all other necessary appliances 
 are provided, and, the sealed packages of the speci- 
 men-coins being delivered to them by the officers of 
 the mint, they are tried by weight, and then a cer- 
 tain number are taken from the whole and melted 
 Into a bar, from which the assay trials are made, 
 and a verdict Is rendered according to the results 
 which have been ascertained; Encyc. Brit, titles 
 Coinage, Mint, Money, Numismatics. 
 
 ANNUAL INCOME. The annual receipts 
 from property. See Income; Tax. 
 
 ANNUAL RENT. In Scotch Law. Inter- 
 est. 
 
 To avoid the law agafnst taking interest, a yearly 
 rent was purchased ; hence the term came to sig- 
 nify interest ; Bell, Diet. ; Paterson, Comp. §§ 19, 
 265. 
 
 ANNUALLY. Yearly; returning every 
 year. 
 
 As applied to interest it is not an under- 
 taking to pay interest at the end of one 
 year only, but to pay interest at the end of 
 each and every year during a period of time, 
 either fixed or contingent; Sparhawk v. 
 Wills, 6 Gray (Mass.) 164. 
 
 ANNUITY (Lat. annum, yearly). A yearly 
 sum stipulated to be paid to another in fee, 
 or for life or years, and chargeable only on 
 the person of the grantor. Co. Litt. 144 b; 
 2 Bla. Com. 40 ; Lumley, Ann. 1 ; Mayor, etc., 
 of City of New Orleans v. Duplessis, 5 Mart. 
 O. S. (La.) 312; Dav. Ir. 14; Stephens' Ex'rs 
 
 v. Milnor, 24 N. J. Eq. 358; Wagstaff t. 
 Lowerre, 23 Barb. (N. Y.) 216. 
 
 An annuity is different from a rent-charge, 
 with which it is sometimes confounded 
 annuity being chargeable on the 1 
 merely, and so far personalty; while a rent- 
 " is something reserved out of realty, 
 or fixed as a burden upon the estate in land; 
 2 Bla. Com. 40; Rolle, Abr. 22<; : Eorton v. 
 Cook, 10 Watts (Pa.) 127, 36 Am. Dec 151. 
 An annuity in fee is said to be a pei 
 fee; for, though transmissible, aa is real es- 
 tate of inherit;! me ; Amid. Ch. 7s2 ; Challis, 
 R. P. 40; liable to forfeiture as a heredita- 
 ment; 7 Coke, 34 a; and not constituting as- 
 sets in the hands of an executor, it lacks 
 some other characteristics of realty. The 
 husband is not entitled to curtesy, nor the 
 wife to dower, in an annuity ; Co. Litt. 32 a. 
 It cannot be conveyed by way of use; 2 
 Wils. 224; is not within the statute of frauds, 
 and may be bequeathed and assigned as per- 
 sonal estate; 2 Ves. Sen. 70; 4 B. & Aid. 59; 
 Roscoe, Real Act. 68, 35; 3 Kent 460. 
 
 To enforce the payment of an annuity, an 
 action of annuity lay at common law, but 
 when brought for arrears must be before the 
 annuity determines; Co. Litt. 285. In case 
 of the insolvency or bankruptcy of the debt- 
 or, the capital of the constituted annuity be- 
 comes exigible; La. Civ. Code, art. 2768; 
 stat. 6 Geo. IV. c. 16, §§ 54, 108; 5 Ves. 708; 
 4 id. 763; 1 Belt, Supp. Ves. 308, 431. 
 
 Land charged with an annuity, having de- 
 scended to heirs at law of which the annu- 
 itant is one, is relieved of the annuity only 
 pro tanto; but quoere if the annuitant had 
 acquired the same right by purchase ; Ad- 
 dams v. Heffernan. 9 Watts (Pa.) 520. 
 
 See Charge; Life Tables. 
 
 ANNUL. To abrogate, nullify, or abolish ; 
 to make void. 
 
 It is not a technical word and there is 
 nothing which prevents the idea from being 
 expressed in equivalent words ; Woodson v. 
 Skinner, 22 Mo. 24. 
 
 ANNULUS ET BACULUS (Lat. ring and 
 staff). The investiture of a bishop was per 
 annulum et bacuhtm by the prince's deliver- 
 ing to the prelate a ring and pastoral stiff, 
 or crozier. 1 Sharsw. Bla. Com. 378. 
 
 ANNUM, DIEM ET VASTUM. See Year, 
 Day and Waste. 
 
 ANNUS LUCTUS (Lat). The year of 
 mourning. Code, 5. 9. 2. 
 
 It was a rule among the Romans, and also 
 the Danes and Saxons, that the widows 
 should not marry infra annum luctus (with- 
 in the year of mourning) ; l Bla. Com. 457. 
 
 In the Transvaal a widower may not re- 
 marry within three months and a widow 
 within 300 days, unless by dispensation. In 
 the Orange River Colony the period for a 
 widow is 2S0 days.
 
 ANNUS UTILIS 
 
 202 
 
 ANSWER 
 
 ANNUS UTILIS. A year made up of 
 available or serviceable days. Brissonius ; 
 Calvinus, Lex. In prescription, the period of 
 incapacity of a minor, etc., was not counted ; 
 it was no part of the anni utiles. 
 
 ANNUUS REDITUS. A yearly rent; an- 
 nuity. 2 Sharsw. Bla. Com. 41 ; Reg. Orig. 
 158 b. 
 
 ANONYMOUS. Without name. 
 
 Books published without the name of the author 
 are said to be anonymous: Cases in the reports of 
 which the names of the parties are not given are 
 said to be anonymous. 
 
 An anonymous society in the Mexican 
 code is one which has no firm name and is 
 designated by the particular designation of 
 the object of the undertaking. The share- 
 holders are liable for debts only to the ex- 
 tent of their shares. 
 
 ANSWER. A defence in writing, made by 
 a defendant to the charges contained in a 
 bill or information filed by the plaintiff 
 against him in a court of equity. 
 
 In case relief is sought by the bill, the 
 answer contains both the defendant's de- 
 fence to the case made by the bill, and the 
 examination of the defendant, on oath, as 
 to the facts charged in the bill, of which 
 discovery is sought; Gresley, Eq. Ev. 19; 
 Jeremy's Mitf. Eq. PI. 15, 16. These parts 
 were kept distinct from each other in the 
 civil law; their union, in chancery, has 
 caused much confusion, in equity pleading ; 
 Langd. Eq. PI. 41; Story, Eq PI. § 850; 
 Dan. Ch. PI. & Pr. *711. 
 
 As to the form of the answer, it usually 
 contains, in the following order; the title, 
 specifying which of the defendants it is the 
 answer of, and the names of the plaintiffs 
 in the cause in which it is filed as answer; 
 8 Ves. 79; 11 id. 62; 1 Russ. 441; see Mc- 
 Lure v. Colclough, 17 Ala. 89 ; a reservation 
 to the defendant of all the advantages which 
 might be taken by exception to the bill, 
 which is mainly effectual in regard to other 
 suits; Beames, Eq. PI. 46; Surget v. Byers, 
 1 Hempst. 715, Fed. Cas. No. 13,629; O'Niell 
 v. Cole, 4 Md. 107; the suostance of the an- 
 swer, according to the defendant's knowl- 
 edge, remembrance, information, and belief, 
 in which the matter of the bill, with the in- 
 terrogatories founded thereon, are answered, 
 one after the other, together with such ad- 
 ditional matter as the defendant thinks nec- 
 essary to bring forward in his defence, ei- 
 ther for the purpose of qualifying or adding 
 to the case made by the bill, or to state a 
 new case on his own behalf ; a general trav- 
 erse or denial of all unlawful combinations 
 charged in the bill, and of all other matters 
 therein contained not expressly answered. 
 
 The answer must be upon oath of the de- 
 fendant, or, if of a corporation, under its 
 seal ; Langd. Eq. PI. § 78 ; Bisp. Eq. 9 ; Roys- 
 ton v. Royston, 21 Ga. 161 ; Lahens v. Fielden, 
 1 Barb. (N. Y.) 22; see Maryland & N. Y. 
 
 Coal & Iron Co. v. Wingert, 8 Gill (Md.) 
 170; 1 Dan. Ch. PI. & Pr. *734; Van Valten- 
 burg v. Alberry, 10 la. 264; unless the plain- 
 tiff waives an oath; Story, Eq. PI. § 824; 
 Bingham v. Yeomans, 10 Cush. (Mass.) 58; 
 Chace v. Holmes, 2 Gray (Mass.) 431; Clem- 
 ents v. Moore, 6 Wall. (U. S.) 299, 18 L. Ed. 
 7S6; Brown v. Bulkley, 14 N. J. Eq. 306; 
 Wallwork v. Derby, 40 111. 527; in which 
 case it must generally be signed by the de- 
 fendant; 6 Ves. 171, 285; Cooper, Eq. PI. 
 320; Van Valtenburg v. Alberry, 10 la. 204; 
 and must be signed by counsel; Story, Eq. 
 PI. § 876 ; unless taken by commissioners ; 
 Davis v. Davidson, 4 McL. 136, Fed. Cas. No. 
 3,631 ; 1 Dan. Ch. PI. & Pr. *732. It is held 
 that a corporation cannot be compelled to 
 answer under oath ; Colgate v. Compagnie 
 Franchise du Telegraphe De Paris a N. Y., 
 
 23 Fed. 82; Coca-Cola Co. v. Gay-Ola Co., 
 200 Fed. 720, 119 C. C. A. 164. Where the 
 bill waives an answer under oath, the waiv- 
 er is ineffectual unless accepted ; Heath v. 
 Ry. Co., Fed. Cas. No. 6,306 ; and if the de- 
 fendant, notwithstanding the waiver, an- 
 swers under oath, the answer has the same 
 effect as if there had been no waiver; Con- 
 ley v. Nailor, 118 U. S. 127, 6 Sup. Ct. 1001, 
 30 L. Ed. 112; Woodruff v. R. Co., 30 Fed. 
 91 ; but it is held that even if its answer 
 when sworn to is evidence under the equity 
 rule, it cannot prove an affirmative defence ; 
 Coca-Cola Co. v. Gay-Ola Co., 200 Fed. 720, 
 119 C. C. A. 164 (C. C. A. 6 Circ). 
 
 Where bill waives answer under oath, the 
 bill ceases to be a bill of discovery, and the 
 defendant need not answer interrogatories 
 therein; McFarland v. Bank, 132 Fed. 399. 
 An averment that "defendant has no knowl- 
 edge or belief" as to defendant's corporate 
 capacity is sufficient to put plaintiff on proof 
 thereof; W. L. Wells Co. v. Mfg. Co., 198 
 U. S. 177, 25 Sup. Ct. 640, 49 L. Ed. 1003. 
 
 As to suostance, the answer must be full 
 and perfect to all the material allegations of 
 the bill, confessing and avoiding, denying or 
 traversing, all the material parts ; Comyns. 
 Dig. Chauncery, K, 2 ; Mayer v. Galluchat, 6 
 Rich. Eq. (S. C.) 1 ; Beall v. Blake, 10 Ga. 449 ; 
 Shotwell's Adm'r v. Struble, 21 N. J. Eq. 31 ; 
 
 24 Beav. 421 ; not literally merely, but an- 
 swering the substance of the charge; Mitf. 
 Eq. PI. 309 ; Grady v. Robinson, 28 Ala. 289 ; 
 Pitts v. Hooper, 16 Ga. 442 ; Smith v. Loomis, 
 5 N. J. Eq. 60 ; and see Hogencamp v. Acker- 
 man, 10 N. J. Eq. 267; must be responsive; 
 Howell v. Robb, 7 N. J. Eq. 17; Chambers v. 
 Warren, 13 111. 318 ; Mann v. Betterly, 21 Vt. 
 326 ; and must state facts, and not arguments, 
 directly and without evasion ; Story, Eq. PI. § 
 852; Spivey v. Frazee, 7 Ind. 661; Gates v. 
 Adams, 24 Vt. 70; Thompson v. Mills, 39 N. 
 C. 390; Gamble & Johnston v. Johnson, 9 
 Mo. 605 ; without scandal ; Langdon v. Pick- 
 ering, 19 Me. 214; Burr v. Burton, 18 Ark. 
 215 ; or impertinence ; Langdon v. Goddard,
 
 ANSWER 
 
 203 
 
 ANSWER 
 
 3 Sto. 13, Fed. Cas. No. 8,0G1 ; 6 Beav. 558; 
 Gier v. Grejrg, 4 McL. 202, Fed. Cas. No. 5,- 
 406; Conwell v. Clay pool, 8 Blackf. (Ind.) 
 124. See 10 Sim. 345 ; 17 Eng. L. & Eq. 509 ; 
 Saltmarah v. Bower & Co., 22 Ala. 221 ; Mc- 
 Intyre v. Trustees of Union College, 6 Paige 
 (N. Y.) 239; U. S. v. McLaughlin, 24 Fed. 
 823; Craiuuier v. Water Co., 39 N. J. Eq. 7G ; 
 G Ves. -1 56. 
 
 Under the modern English practice the 
 form of the answer has been much simpli- 
 fied ; 15 & 16 Vict. c. 86, § 17. Under the 
 General Orders of 1S52 a form was adopted, 
 though scarcely necessary in view of the 
 absence of all technicality ; 2 Dan. Ch. Pr. 
 724 ; 3 id. 2139. In the United States gener- 
 ally the answer has been simplified, but the 
 variations from the old practice consist 
 mainly in dividing the answer iuto numbered 
 paragraphs, adjusting its general form to 
 the bill as now drawn (see Bill), and in 
 omitting the clause reserving exceptions 
 (though in practice this is very frequently 
 retained), and the clause denying combina- 
 tion, retaining merely, to form an issue on 
 them, a general traverse of all allegations 
 not expressly answered. 
 
 A material allegation in a bill, which is 
 neither expressly admitted or denied, is 
 deemed to be controverted ; Glos v. Randolph, 
 133 111. 197, 24 N. E. 426; rates v. Thomp- 
 son, 44 111. App. 145. 
 
 Insufficiency of answer is a ground for ex- 
 ception when some material allegation, 
 charge, or interrogatory is unanswered or 
 not fully answered ; West v. Williams, 1 
 Md. Ch. Dec. 358; Hardeman v. Harris, 7 
 How. (U. S.) 726, 12 L. Ed. 889; Lea v. 
 Vanbibber, 6 Humphr. (Tenn.) 18. See 
 Lanum v. Steel, 10 Humphr. (Tenn.) 280; 
 McCormick v. Chainberlin, 11 Paige (N. Y.) 
 543; American Loan & Trust Co. v. R. Co., 
 40 Fed. 3S4; 1 Dan. Ch. PI. & Pr. 700; 
 Blaisdell v. Stevens, 16 Vt. 179. 
 
 Where the defendant in equity suffers a 
 default he does not admit facts not alleged 
 in the bill nor conclusions of the pleader 
 from the facts stated; Cramer v. Bode, 24 
 111. App. 219. 
 
 An answer may, in some cases, be amend- 
 ed ; 2 Bro. C. C. 143 ; 2 Ves. 85 ; to correct a 
 mistake of fact ; Ambl. 292 ; 1 P. Wms. 297 ; 
 but not of law ; Ambl. 65 ; nor any mistake 
 in a material matter except upon evidence 
 of surprise ; Howe v. Russell, 36 Me. 124 ; 
 Smith v. Babcock, 3 Sumn. 583, Fed. Cas. 
 No. 13,008; 1 Bro. C. C. 319; and not, it 
 seems, to the injury of others ; Story, Eq. PI. 
 § 904; Bell's Adni'r v. Hall, 5 N. J. Eq. 49. 
 The court may permit an answer to be 
 amended even after the announcement of the 
 decision of the cause ; Arnett v. Welch's 
 Ex'rs, 46 N. J. Eq. 543, 20 Atl. 48. A supple- 
 mental answer may be filed to introduce new 
 matter; Suydam v. Truesdale, 6 McL. 459, 
 Fed. Cas. No. 13,656; U. S. v. Morris, 7 
 
 Mackey (D. C.) 8; or correct mlstal 1 
 Coll. 133; Graham v. Tankersley, \~> Ala. 
 634; Carey v. Ector, 7 Ga. 99; Cuquillard v. 
 Suydam, S Blackf. (Ind.) 24; which i 
 sidered as forming a part of the original an- 
 swer. See Discovkhv ; Mitf. Eq. PL J 1 
 
 The effect of an answer must be ovei 
 by two witnesses or by one witness and cor- 
 roborating evidence ; but the answer of a 
 corporation is not entitled to the s:iiue pro- 
 bative force as that of an individual ; I 
 Eq. Pi. § 87, citing Union Bank v. Geary, 5 
 Pet. (U. S.) Ill, 8 L. Ed. 60; and the rule 
 does not apply where there is a mere di 
 made for want of knowledge; Blair v. Silver 
 Peak Mines, 93 Fed. 332. 
 
 For an historical account, see 2 Brown, 
 Civ. Law 371, n. ; Barton, Suit in Eq. ; Lang- 
 dell's Summary of Equity 41. 
 
 By the Equity Rules of the Supreme Court 
 of the United States, in effect February 1, 
 1913 (198 Fed. xix ; 226 u. S. appendix) 
 every defence to a bill in point of law, which 
 might heretofore have been made by demur- 
 rer or plea, shall be made by motion to dis- 
 miss or by answer. Defences formerly pre- 
 sentable by plea in bar or abatement shall 
 be made in the answer. It shall in short 
 and simple terms set out the defence to each 
 claim in the bill, omitting any mere statement 
 of evidence and avoiding any general denial 
 of the averments of the bill, but specifically 
 admitting or denying or explaining the facts 
 upon which the plaintiff relies, unless defend- 
 ant is without knowledge, in which case he 
 shall so state, such statement operating as a 
 denial. It may state as many defences in the 
 alternative, regardless of consistency, as the* 
 defendant deems essential. Counter-claims 
 arising out of the transaction must be stated. 
 Any set-off or counter-claim, which might be 
 the subject of any independent equity suit, 
 may be set up without cross-bill. 
 
 In Practice. The declaration of a fact by 
 a witness after a question has been put, 
 asking for it. 
 
 ANTAP0CHA (Lat). An instrument by 
 which the debtor acknowledges the debt due 
 the creditor, and binds himself. A copy of 
 the apocha signed by the debtor and deliv- 
 ered to the creditor. Calvinus, Lex. 
 
 ANTE JURAMENTUM (Lat; called also 
 Juramentum CalumnicE). The oath former- 
 ly required of the parties previous to a suit, 
 — of the plaintiff that he would prosecute, 
 and of the defendant that he was innocent. 
 Jacobs, Diet; Whishaw. 
 
 ANTE LITEM M0TAM. Before suit 
 brought. 
 
 ANTE-NUPTIAL. Before marriage; be- 
 fore marriage, with a view to entering into 
 marriage. See Contemplation of Mabbiaqe. 
 
 ANTE-NUPTIAL CONTRACT. A con- 
 tract made before marriage. 
 The term is most generally applied to a
 
 ANTE-NUPTIAL CONTRACT 
 
 204 
 
 ANTE-NUPTIAL CONTRACT 
 
 contract entered into between a man and wo- 
 man in contemplation of their future mar- 
 riage, and in that case it is called a mar- 
 riage contract. 
 
 A wife may waive all right to any portion 
 of the estate of her husband by an ante-nup- 
 tial contract, and this is binding on her un- 
 less fraud, advantage or collusion can be 
 shown; Edwards v. Martin, 39 111. App. 145. 
 An ante-nuptial agreement that the wife 
 shall claim no right of dower does not de- 
 prive her of her distributive share in the 
 husband's personal property; Pitkin v. Peet, 
 87 la. 268, 5-4 N. W. 215. A contract by which 
 each agreed to make no claim to the prop- 
 erty of the one dying first is void so far as 
 dower is concerned, as it makes no provision 
 in lieu thereof; Brandon v. Dawson, 51 Mo. 
 App. 237. 
 
 Conveyances made by one of two persons 
 about to be married, usually called mar- 
 riage settlements. 
 
 They are usually made in contemplation 
 of marriage, for the benefit of the married 
 pair, or one of them, or for the benefit of 
 some otber persons ; as their children. They 
 may be of either personal or real estate. 
 Such settlements vest the property in trus- 
 tees upon specified terms, usually, for the 
 benefit of the husband and wife during their 
 joint lives, and then for the benefit of the 
 survivor for life, and afterwards for the 
 benefit of children. 
 
 Ante-nuptial agreements of this kind will 
 be enforced in equity by a specific perform- 
 ance of them, provided they are fair and 
 valid and the intention of the parties is con- 
 sistent with the principles and policy of 
 law ; Barnett v. Goings, 8 Blackf. (Ind.) 284, 
 44 Am. Dec. 766; Eaton v. Tillinghast. 4 R. 
 I. 276; Whichcote v. Lyle's Ex'rs, 28 Pa. 
 73; Magniac v. Thompson, 7 Pet. (U. S.) 348, 
 8 L. Ed. 709; Neves v. Scott, 9 How. (U. S.) 
 196, 13 L. Ed. 102. Settlements after mar- 
 riage, if made in pursuance of an agreement 
 In writing entered into prior to the mar- 
 riage, are valid both against creditors and 
 purchasers ; Reinhart v. Miller, 22 Ga. 402, 
 68 Am. Dec. 506. 
 
 A conveyance by the husband or wife 
 prior to marriage, which, if permitted, would 
 deprive the other of his or her marital rights 
 in the property conveyed. 
 
 In Chandler v. Hollingsworth, 3 Del. Ch. 
 99, considering equitable relief against ante- 
 nuptial agreements, Bates, Ch., held that the 
 husband will be protected against a vol- 
 untary conveyance or settlement, by his in- 
 tended wife, of all her estate, to the exclu- 
 sion of the husband, made pending an en- 
 gagement of marriage, without his knowledge, 
 even in the absence of express misrepresen- 
 tation or deceit, and whether the husband 
 knew of the existence of the property or 
 not; and that the wife's dower will be pro- 
 tected against the voluntary conveyance of 
 
 the husband, under like circumstances. A 
 settlement after marriage conveying prop- 
 erty in execution of an oral ante-nuptial 
 agreement is void as against creditors; 2 De 
 G. & J. 76. But they have been allowed; 
 Hussey v. Castle, 41 Cal. 239; Brown v. 
 Lunt, 37 Me. 423. By an oral ante-nuptial 
 agreement a husband agreed to convey to 
 trustees, when it should come into posses- 
 sion, a reversion belonging to his wife to be 
 held on certain trusts, which under volun- 
 tary settlements would not be valid as 
 against creditors. In a post-nuptial writing 
 the husband covenanted to perform the oral 
 agreement He afterwards became bank- 
 rupt. It was held that, the one agreement 
 being oral and the other gratuitous, the 
 trustee in bankruptcy would not be order- 
 ed to perform; [1901] 2 Ch. 145. It has 
 been held that marriage is sufficient part 
 performance to make the contract binding; 
 Nowack v. Berger, 133 Mo. 24, 34 S. W. 4S9, 
 31 L. R. A. 810, 54 Am. St. Rep. 6G3; Chand- 
 ler v. Hollingsworth, 3 Del. Ch. 99. 
 See Marriage Settlement. 
 
 ANTEDATE. To put a date to an instru- 
 ment of a time before the time it was writ- 
 ten. 
 
 ANTENATI (Lat. born before). Those 
 born in a country before a change in its 
 political condition such as to affect their al- 
 legiance. 
 
 The term Is ordinarily applied by American 
 writers to denote those born in this country prior 
 to the Declaration of Independence. It is distin- 
 guished from postnati, those born after the event. 
 
 As to the rights of British antenati in the 
 United States, see Apthorp v. Backus, Kirby 
 (Conn.) 413, 1 Am. Dec. 26; Miller v. Eng- 
 lish, 6 N. J. Eq. 305; Adams v. Ryerson, 6 
 N. J. Eq. 337 ; Kilham v. Ward, 2 Mass. 236, 
 244; Jackson v. Wright, 4 Johns. (N. Y.) 75; 
 Hunter v. Fairfax's Devisee, 1 Munf. (Va.) 
 218; Com. v. Bristow, 6 Call (Va.) 60; 
 Jackson's Lessee v. Burns, 3 Binn. (Pa.) 75 ; 
 Dawson v. Godfrey, 4 Cra. (U. S.) 321, 2 L. 
 Ed. 634; Inglis v. Sailor's Snug Harbor, 3 
 Pet. (U. S.) 99, 7 L. Ed. 617. As to the use 
 of the term in England, see 7 Coke 1, 27; 
 2 B. & C. 779; 5 id. 111;. 1 Wood. Lect. 
 3S2 ; Postnati. 
 
 ANTHROPOMETRY. A word given by a 
 French savant, Alphonse Bertillon, to a sys- 
 tem of identification depending on the un- 
 changing character of certain measurements 
 of parts of the human frame. It was largely 
 adopted after its introduction in France in 
 1SS3, but fell into disfavor as being costly 
 and as liable to error. It has given place to 
 the "finger print" system devised by Francis 
 Galton, which was adopted in Bengal by the 
 Indian government in 1897 and in England 
 three years later. Encycl. Br. Anthropom- 
 etry. This method is in use also in Ger-
 
 ANTHROPOMETRY 
 
 205 
 
 ANTINOMIA 
 
 many and Italy ; in other countries both 
 systems are used; 4 Towns. Cr. Law 301. 
 
 See report of I'nited States Commissioner 
 of Education, 1S95-0, vol. 2, c. 28, where the 
 Bertillon system is fully described and stat- 
 utes of Massachusetts, New York Pennsyl- 
 vania, etc., are collected. See also Wiginore, 
 Jud. Proof 79. 
 
 The Bertillon system was based upon: (1) 
 The almost absolute immutability of the hu- 
 • man frame after tbe twentieth year of age; 
 the growth thereafter, being ouly of the 
 thigh bone, is so little that it is easy to make 
 allowance for it. (2) The diversity of di- 
 mension of the human skeleton of different 
 subjects is so great that it is difficult, if not 
 impossible, to find two individuals whose 
 bony structure is even sufficiently alike to 
 make confusion between them possible. (3) 
 The facility and comparative precision with 
 which certain dimensions of the skeleton may 
 be measured in the living subject by calipers 
 of simple construction. The measurements 
 which, as the result of minute criticism, have 
 been preferred, are as follows: (1) Height 
 (man standing) ; (2) reach (finger tip to finger 
 tip); (3) trunk (man sitting); (4) length; (5) 
 width ; (G) length of right ear; (7) width of 
 right ear; (S) length of left foot; (9) length 
 of left middle finger: (10) length of left little 
 finger; (11) length of left forearm. 
 See Rogues' Gallery. 
 
 ANTI-MANIFESTO. The declaration of 
 the reasons which one of the belligerents 
 publishes, to show that the war as to him is 
 defensive. Wolmus § 1187. 
 
 ANTI-TRUST ACTS. Federal and state 
 statutes to protect trade and commerce from 
 unlawful restraints and monopolies. See U. 
 S. v. Knight Co., 156 U. S. 1, 15 Sup. Ct. 249, 
 39 L. Ed. 325; Restraint of Trade. 
 
 ANTICHRESIS. In Civil Law. An agree- 
 ment by which the debtor gives to the cred- 
 itor the income from the property which he 
 has pledged, in lieu of the interest on his 
 debt. Guyot, Rtpert.; Story Bailm. § 344. 
 
 It is analogous to the Welsh mortgage of the 
 common law. In the French law, if the income was 
 more than the interest, the debtor was entitled to 
 demand an account of the income, and might claim 
 any excess ; La. Civ. Code, 2085. See Dig. 20. 1. 11 ; 
 id. 13. 7. 1; Code, 8. 28. 1; Livingston's Ex'x v 
 Story, 11 Pet. (U. S.) 351, 9 L. Ed. 74G ; 1 Kent 137; 
 Calderwood v. Calderwood, 23 La. Ann. 658. 
 
 ANTICIPATION (Eat. ante, before, capere, 
 to take). The act of doing or taking a thing 
 before its proper time. 
 
 In deeds of trust there is frequently a provision 
 that the income of the estate shall be paid by the 
 trustee as it shall accrue, and not by way of antici- 
 pation. A payment made contrary to such pro- 
 vision would not be considered as a discharge of the 
 trustee; Bisp. Eq. 104. 
 
 As to the use of the term in patent law, 
 see Patent. 
 
 ANTICIPATORY BREACH OF CON- 
 TRACT. See Breach. 
 
 ANTINOMIA. In Roman Law. A ■ r 
 
 apparent contradiction or inconsistency in 
 the laws. Merlin, Rtpert. 
 
 It Is sometimes used as an English word, and 
 spelled Antinomy. 
 
 ANTIQUA CUSTUMA <L. Lat ancient 
 custom). The duty due upon wool, woolfells, 
 and leather under the statute 3 Bdw. I. 
 
 The distinction between autiqua and nova < uttuma 
 arose upon the imposition of an increased duty up- 
 on the same articles, in the twenty-second year of 
 his reign ; Bacon, Abr. Smuggling, C. 1. 
 
 ANTIQUA STATUTA. Also called I 
 Statute. English statutes from the time of 
 Richard First to Edward Third. I; 
 Hist. Eng. Law 227. See Nova Statita. 
 
 ANTIQUARE. In Roman Law. To resolve 
 a former law or practice; to reject or vote 
 against a new law; to prefer tbe old law. 
 Those who voted against a proposed law 
 wrote on their ballots the letter "A," the in- 
 itial of antiquo, I am for the old law; Cal- 
 vin ; Black, Diet. 
 
 ANTIQUITIES. The act of June 8, 1906, 
 provides for the punishment of any person 
 who shall injure or destroy, etc., any historic 
 or prehistoric ruin, or object of antiquity, on 
 any government lands. See La.ndmauks. 
 
 ANTITHETARIUS. In 0M English Law. 
 A man who endeavors to discharge himself 
 of the crime of which he is accused, by re- 
 torting the charge on the accuser. lie dif- 
 fers from an approver in this, that the lat- 
 ter does not charge the accuser, but others; 
 Jacobs, Law Diet. 
 
 ANY. Some; one out of many; an in- 
 definite numl er. 
 
 It is synonymous with "either;" State v. 
 Antonio, 3 Brev. (S. C.) 5C2, 3 Wheel. Trim. 
 Law (as. 508; and is given the full force of 
 "every" or "all"; Logan v. Small. 4.'< Mo. 
 254; 4 Q. B. D. 409 ;• McMurray v. Brown. 
 91 U. S. 205, 23 L. Ed. 321; L. R. 5 II. L. 
 134 ; but its generality may be restricted by 
 the context; 6 Q. B. D. 607. 
 
 ANY TERM OF YEARS. In Massachu- 
 setts, this term, in the statutes relating to 
 additional punishment, means not less than 
 two years. Ex parte Seymour. 11 Pick. 
 (Mass.) 10; Ex parte Dick, id. 86; Ex parte 
 White, id. 90; Ex parte Stevens, id. !U. 
 
 APANAGE. In French Law. A portion 
 set apart for the use and support of the 
 younger ones, upon condition, however, that 
 it should revert, upon failure of male issue, 
 to his original donor and his heirs. Spel- 
 man, Gloss. 
 
 APARTMENT. A part of a house occupied 
 by a person, while the rest is occupied by 
 another or others. 7 M. & G. 95 ; 6 Mod. 
 214 ; Woodf. L. ft T. (1st Am. ed.) 660. 
 "Apartments is a proper description of the 
 premises so occupied :" 7 M. & G. 95. 
 
 The occupier of part of a house, where the
 
 APARTMENT 
 
 206 
 
 APICES LITIGANDI 
 
 landlord resides on the premises and retains 
 the key of the outer door, is held a mere 
 lodger, and is not a person occupying "as 
 owner or tenant;" 7 M. & G. 85. 
 
 If a house, originally entire, be divided 
 into several apartments, with an outer door 
 to each apartment, and no communication 
 with each other, the several apartments 
 shall be rated as distinct mansion houses; 
 but if the owner live therein, all the unten- 
 anted apartments shall be considered as 
 parts of his house; G Mod. 214. 
 
 A Hat or flat house is a building consisting 
 of more than one story in which there are 
 one or more suites of rooms on each floor 
 equipped for private house-keeping purposes. 
 An apartment house is either a building oth- 
 erwise termed a flat or it is a building di- 
 vided into separate suites of rooms intended 
 for residence, but commonly without facili- 
 ties for cooking ; Lignot v. Jaekle, 72 X. J. 
 Eq. 233, 65 Atl. 221. 
 
 By the lease of apartments in a building, 
 in a town, for the purpose of trade, the 
 lessee takes only such interests in the sub- 
 jacent lands as is dependent upon the en- 
 joyment of the apartments rented and neces- 
 sary thereto ; and if they are totally destroy- 
 ed by fire, this interest ceases ; McMillan v. 
 Solomon, 42 Ala. 356, 94 Am. Dec. 654. See 
 Cunningham v. Entrekin, 34 W. N. C. (Pa.) 
 353. 
 
 In an indictment for "entering a room or 
 apartment, with the intention to commit lar- 
 ceny," it is right to charge the ownership of 
 the room to be his who rented it from one 
 who had the general supervision and control 
 of the whole house, and occupied the same 
 as a lodger ; People v. St. Clair, 38 Cal. 137. 
 
 See Flat. 
 
 APERTA BREVIA. Open, unsealed writs. 
 Rap. & Lawr. Law Diet. 
 
 APEX JURIS (Lat. the summit of the 
 law). A term used to indicate a rule of law 
 of extreme refinement. A term used to de- 
 note a stricter application of the rules of 
 law than is indicated by the phrase summum 
 jus. Dennis v. Ludlow, 2 Caines (N. Y.) 117; 
 Ex parte Foster, 2 Sto. 143, Fed. Cas. No. 
 4,960; Hinsdale v. Miles, 5 Conn. 334; 1 
 Burr. 341 ; 14 East 522. See Co. Litt. 3046 ; 
 Wing. Max. 19 ; Maxims, apices juris, etc. 
 
 APHASIA. Loss of the power of using 
 words properly, of comprehending them 
 when spoken or written or of remembering 
 the nature and uses of familiar objects. 
 Sensory aphasia or apraxia is an inability 
 to recognize the use or import of objects or 
 the meaning of words, and includes word 
 olindness and word deafness, visual and 
 auditory asphasia. Motor asphasia is a loss 
 of memory of the efforts necessary to pro- 
 nounce words, and often includes agraphia. 
 or the inability to write words of the desired 
 meaning. 
 
 APICES LITIGANDI. Extremely fine 
 points or subtleties of litigation nearly equiv- 
 alent to the modern phrase "sharp practice." 
 Rap. & Lawr. Law Diet., citing 3 Burr. 1243. 
 
 APOCA (Lat). A writing acknowledging 
 payments; acquittance. 
 
 It differs from acceptilation In this, that accepti- 
 lation imports a complete discharge of the former 
 obligation whether payment be made or not ; apoca 
 discharge only upon payment being made. Calvi- 
 nus, Lex. 
 
 APOCRISARIUS (Lat). In Civil Law. 
 A messenger; an ambassador. 
 
 Applied to legatees or messengers, as they car- 
 ried the messages (a^dicpiaeig) of their principals. 
 They performed several duties distinct in character, 
 but generally pertaining to ecclesiastical affairs. 
 
 A messenger sent to transact ecclesiastical 
 business and report to his superior ; an of- 
 ficer who had charge of the treasury of a 
 monastic edifice; an officer who took charge 
 of opening and closing the doors. Du Cange; 
 Spelman, Gloss. ; Calvinus, Lex. 
 
 Apocrisarius Cancellarius. An officer who 
 took charge of the royal seal and signed 
 royal despatches. 
 
 Called, also, secretarius, consiliarius (from his 
 giving advice) ; referendarius ; a consiliis (from 
 his acting as counsellor) ; a responsis, or respon- 
 salis. 
 
 APOGRAPH I A. In Civil Law. An exam- 
 ination and enumeration of things possessed ; 
 an inventory. Calvinus, Lex. 
 
 APOPLEXY. In Medical Jurisprudence. 
 
 The group of symptoms arising from rupture 
 of a minute artery and consequent hem- 
 orrhage into the substance of the brain or 
 from the lodgment of a minute clot in one 
 of the cerebral arteries. 
 
 The symptoms consist usually of sudden 
 loss of consciousness, muscular relaxation, 
 lividity of the face and slow stertorous res- 
 piration, lasting from a few hours to several 
 days. Death frequently ensues. If con- 
 sciousness returns, there is found paralysis 
 of some of the voluntary muscles, very fre- 
 quently of the muscles of the face, arm, and 
 leg upon one side, giving the symptom of 
 hemiplegia. There is usually more or less 
 mental impairment. 
 
 The mental impairment presents no uniform char- 
 acters, but varies indefinitely, in extent and sever- 
 ity, from a little failure of memory, to an entire 
 abolition of all the intellectual faculties. The pow- 
 er of speech is usually more or less affected; it 
 may be a slight difficulty of utterance, or an in- 
 ability to remember certain words or parts of 
 words, or an entire loss of the power of articula- 
 tion. This feature may arise from two different 
 causes— either from a loss of the power of language, 
 or a loss of power in the muscles of the larynx. 
 This fact must be borne in mind by the medical 
 jurist, and there can be little difficulty in distin- 
 guishing between them. In the latter, the patient 
 is as capable as ever of reading, writing, or under- 
 standing spoken language. In the former, he is 
 unable to communicate his thoughts by writing, be- 
 cause they are disconnected from their articulate 
 signs. He recognizes their meaning when he sees 
 them, but cannot recall them by any effort of the
 
 APOPLEXY 
 
 207 
 
 APOPLEXY 
 
 perceptive powers. This affection of the faculty of 
 language Is manifested In various ways. One per- 
 son loses all recollection of the names of persons 
 and things, while other parts of speech are still at 
 command. Another forgets everything but substan- 
 tives, and only those which express some mental 
 quality or abstract idea. Another loses the memory 
 of all words but yes or no. In these cases the pa- 
 tient is able to repeat the words on hearing them 
 pronounced, but, after a second or third repetition, 
 loses them altogether. 
 
 See Aphasia. 
 
 Wills and contracts are not unfrequently 
 made in that equivocal condition of mind 
 which sometimes follows an attack of apo- 
 plexy or paralysis; and their validity is 
 contested on the score of mental incompeten- 
 cy. In cases of this kind there are, gene- 
 rally, two questions at issue, viz., the abso- 
 lute amount of mental impairment, and the 
 degree of foreign influence exerted upon the 
 party. They cannot be considered independ- 
 ently of each other. Neither of them alone 
 might be sufficient to invalidate an act, while 
 together, even in a much smaller degree, they 
 would have this effect. 
 
 In testing the mental capacity of para- 
 lytics, reference should be had to the nature 
 of the act in question. The question is not, 
 had the testator sufficient capacity to make 
 a will? but, had he sufficient capacity to 
 make the will in dispute? A capacity which 
 might be quite adequate to a distribution of 
 a little personal property among a few near 
 relatives would be just as clearly inadequate 
 to the disposition of a large estate among a 
 host of relatives and friends possessing very 
 unequal claims upon the testator's bounty. 
 Here, as in other mental conditions, all that 
 is required is mind sufficient for the purpose, 
 neither more nor less. See Dementia; De- 
 lirium; Imbecility; Mania. In order to 
 arrive at correct conclusions on this point, 
 we must be careful, among other things, not 
 to confound the power to appreciate the 
 terms of a proposition with the power to 
 discern its relations and consequences. 
 
 In testing the mental capacity of one who 
 has lost the power of speech, it is always 
 difficult, and often impossible, to arrive at 
 correct results. If the person is able and 
 willing to communicate his thoughts in writ- 
 ing, his mental capacity may be clearly re- 
 vealed. If not disposed to write, he may 
 communicate by constructing words and sen- 
 tences by the help of a dictionary or block 
 letters. Failing in this, the only other in- 
 tellectual manifestation possible is the ex- 
 pression of assent or dissent by signs to prop- 
 ositions made by others. Any of these means 
 of communication, other than that of writing, 
 must leave us much in the dark respecting 
 the amount of intellect possessed by the par- 
 ty. If the act in question is complicated in 
 its relations, if it is unreasonable in its dis- 
 positions, if it bears the slightest trace of 
 foreign influence, it cannot but be regarded 
 with suspicion. If the party has only the 
 
 power of assenting or dissenting, it must 
 always be impossible to decide whether this 
 does not refer to the terms i; 
 merits of the proposition ; and, the: • 
 an act which bears no other evidence than 
 this of the will of the person certainly ought 
 not to be established. Besides, it must be 
 considered that a will drawn up in this man- 
 ner is, actually, not the will of the 
 since every disposition has originated in the 
 minds of others; Kay, Med. .Tur. 363. The 
 phenomena and legal consequences of para- 
 lytic affections are extensively discussed In 
 Clark v. Fisher, 1 Paige (N. Y.) 171, 18 
 Dec. 402; 1 Hagg. BccL 502, 577; 2 id. 34; 
 1 Curt. Eccl. 7S2; Parish Will Case, 4 vols. 
 N. Y. 1S5S. And see Death; Insanity. 
 
 APOSTASY. A total renunciation of 
 Christianity by embracing either a false re- 
 ligion or having no religion at all. 4 Bla. 
 Com. 43. See Blasphemy; Christianity. 
 
 APOSTLES. Brief letters of dismissal 
 granted to a party who takes an appeal from 
 the decision of an English court of admi- 
 rality, stating the case, and declaring that 
 the record will be transmitted. 2 Brown, 
 Civ. and Adm. Law 438; Dig. 49. 6. It is 
 used in Adm. Rule 6, of the 2d Circ. 90 Fed. 
 lxix. 
 
 This term was used in the civil law. It is derived 
 from apostolos, a Greek word, which signifies one 
 sent, because the Judge from whose sentence an ap- 
 peal was made, sent to the superior judge these 
 letters of dismission, or apostles; Merlin, Rcpert. 
 mot Apotres ; 1 Pars. Marit Law 745. 
 
 AP0ST0LI. In Civil Law. Certificates of 
 the inferior judge from whom a cause is re- 
 moved, directed to the superior. Dig. 49. 0. 
 See Apostles. 
 
 Those sent as messengers. Spelman, Gloss. 
 
 APOTHECARY. "Any person who keeps 
 a shop or building where medicines are com- 
 pounded or prepared according to pies, rip 
 tions of physicians, or where medicines are 
 sold, shall be regarded as an apothecary." 
 14 Stat. L. 119, § 23. 
 
 In England and Ireland an apothecary is a 
 member of an inferior branch of the medical 
 profession and is licensed by the Apotheca- 
 ries Company to practice medicine as well 
 as to sell drugs. 
 
 See Druggist. 
 
 APPARATOR (Lat). A furnisher; a pro- 
 vider. 
 
 The sheriff of Bucks had formerly a considerable 
 allowance as apparator comitatus (apparator for 
 the county); Cowell. 
 
 APPARENT. That which appears; that 
 which is manifest; what is proved. It is re- 
 quired that all things upon which a court 
 must pass should be made to appear, if mat- 
 ter in pais, under oath ; if matter of rec- 
 ord, by the record. It is a rule that those 
 things which do not appear are to be con- 
 sidered as not existing: <lc non apparentibus 
 et non existcntibus cadem est ratio; Broom,
 
 APPARENT 
 
 208 
 
 APPEAL 
 
 Max. 20. What does not appear does not 
 exist: quod non apparct, non est; La From- 
 bois v. Jackson, 8 Cow. (N. Y.) 600, 18 Am. 
 Dec. 463; 1 Term 404; 12 M. & W. 316. 
 
 In case of homicide when the term "ap- 
 parent danger" is used it means such overt 
 actual demonstration, by conduct and acts, of 
 a design to take life or do some great per- 
 sonal injury as would make the killing ap- 
 parently necessary for self-preservation; Ev- 
 ans v. State, 44 Miss. 762. 
 
 APPARITOR. An officer or messenger em- 
 ployed to serve the process of the spiritual 
 courts in England and summon offenders. 
 Cowell. 
 
 APPARURA. In Old English Law. Fur- 
 niture or implements. 
 
 CarucaricB apparura, plough-tackle. Cow- 
 ell ; Jacob, Diet. 
 
 APPEAL. In Criminal Practice. A formal 
 accusation made by one private person 
 against another of having committed some 
 heinous crime. 4 Bla. Com. 312. 
 
 Anciently, appeals lay for treason as well 
 as felonies ; but appeals for treason were 
 abolished by statutes 5 Edw. III. c. 9, 25 
 Edw. III. c. 24, and 1 Hen. IV. c. 14, and for 
 all other crimes by the statute 59 Geo. III. 
 c. 46. 
 
 An appeal lay for the heir male for the 
 death of his ancestors ; for the widow while 
 unmarried for the death of her husband ; 
 and by the party injured, for certain crimes, 
 as y robbery, rape, mayhem, etc.; Co. Litt. 
 2S7 b; 2 Bish Cr. Law 1001, note, par. 4. 
 
 It might be brought at any time within 
 a year and a day, even though an indictment 
 had been found. If the appellee was found 
 innocent, the appellor was liable to imprison- 
 ment for a year, a fine, and damages to the 
 appellee. 
 
 The appellee might claim ivager of battel. 
 This claim was last made in the year 1818 
 in England; 1 B. & Aid. 405. And see 2 
 W. Bla. 713; 5 Burr. 2643, 2793; 4 Sharsw. 
 Bla. Com. 312-318, and notes. 
 
 In the 12th and 13th centuries and for 
 some time thereafter, the Crown relied as 
 much upon the Appeal of the private accuser 
 as upon the presentment of a jury- The in- 
 dictment came to take its place and at the 
 end of the 13th century the action of tres- 
 pass was an efficient substitute for the ap- 
 peal, and it gradually decayed as a mode of 
 criminal prosecution. It lived long in the 
 law because it came to "be forgotten. Ap- 
 peals of treason brought in Parliament were 
 abolished in 1400. Other appeals were grad- 
 ually abolished. It was considered that cer- 
 tain appeals alleging felony were good in 
 Coke's day; Co. Litt. 127; 2 Hawk. P. C. 
 157. The appeal of murder had the longest 
 history and was only abolished by 59 Geo. 
 III. c. 46. 2 Holdsw. Hist. E. L. 155. 
 
 In Legislation. The act by which a mem- 
 
 ber of a legislative body who questions 
 the correctness of a decision of the presid- 
 ing officer, procures a vote of the body upon 
 the decision. In the House of Representa- 
 tives of the United States the question on an 
 appeal is put to the House in this form: 
 "Shall the decision of the chair stand as the 
 judgment of the House?" Rob. R. of O. 14, 
 66. 
 
 If the appeal relates to an alleged breach 
 of decorum, or transgression of the rules of 
 order, the question is taken without debate. 
 If it relates to the admissibility or relevancy 
 of a proposition, debate is permitted, except 
 when a motion for the previous question is 
 pending. 
 
 As to Appeal, in practice, as one of the 
 methods of appellate jurisdiction, see Ap- 
 peal and Errob. 
 
 APPEAL AND ERROR. The methods of 
 exercising appellate jurisdiction for "the re- 
 view by a superior court of the final judg- 
 ment, order, or decree of some inferior 
 court." Ex parte Batesville & Brinkley R. 
 Co., 39 Ark. 82. 
 
 "The most usual modes of exercising ap- 
 pellate jurisdiction * * * are by a writ 
 of error, or by an appeal, or by some process 
 of removal of a suit from an inferior tri- 
 bunal. An appeal is a process of civil laW 
 origin, and removes a cause, entirely sub- 
 jecting the facts as well as the law to a re- 
 view and a retrial. A writ of error is a pro* 
 cess of common law origin, and it removes 
 nothing for re-examination but the law. The 
 former mode is usually adopted in cases of 
 equity and admiralty jurisdiction ; the latter 
 in suits at common law tried by a jury." 
 Sto. Const. § 1762 ; Behn v. Campbell, 205 U. 
 S. 403, 27 Sup. Ct. 502, 51 L. Ed. 857 ; U. S. 
 v. Goodwin, 7 Cra. (U. S.) 108, 3 L. Ed. 284. 
 
 The appellate jurisdiction "is exercised by 
 revising the action of the inferior court, and 
 remanding the cause for the rendition and 
 execution of the proper judgment" ; Dodds 
 v. Duncan, 12 Lea (Tenn.) 731, 734. It "im- 
 plies a resort from an inferior tribunal of 
 justice, to a superior, for the purpose of re- 
 vising the judgments" of the former ; Smith 
 v. Carr, Hard. (Ky.) 305; and it was said in 
 Marbury v. Madison, that its essential cri- 
 terion is "that it revises and corrects the 
 proceedings in a cause already instituted, 
 and does not create that cause" ; 1 Cra. (U. 
 S.) 137, 175, 2 L. Ed. 60. Auditor of State 
 v. R. Co., 6 Kan. 500, 505, 7 Am. Rep. 575; 
 Sto. Const Sec. 1761 ; Tierney v. Dodge, 9 
 Minn. 166 (Gil. 153). 
 
 The methods of obtaining a review are dif- 
 ferent in law and equity. In the latter the 
 legal process by which it is obtained is term- 
 ed an appeal, which is the removal of a cause 
 from a court of inferior to one of superior 
 jurisdiction, for the purpose of obtaining a 
 review and retrial ; Wiscart v. Dauchy, 3- 
 Dall. (U. S.) 321, 1 L. Ed. 619 ; U. S. v. Good-
 
 APPEAL AND ERROR 
 
 209 
 
 APPEAL AND ERROR 
 
 win, 7 Cra. (U. S.) 110, 3 L. Ed. 284 ; Boone 
 v. Chiles, 10 Pet. (U. S.) 205, 9 L. Ed. 388; 
 Wetherbee v. Johnson, 14 Mass. 414; King 
 v. Sloan, 1 S. ft K. (Pa.) 7S. When taken in 
 open court it docs not need the formalities of 
 ancient law to indicate that it is taken 
 against all adverse interests; Taylor v. Lees- 
 nitzer, 220 U. S. 93, 31 Sup. Ct. 371, 55 L. Ed. 
 382. 
 
 An appeal generally supersedes the judg- 
 ment of the inferior court so far that no 
 action can be taken upon it until after the 
 final decision of the cause; Archer v. Hart, 
 5 Fla. 234; Danforth, Davis & Co. v. Carter, 
 4 la. 230; Waterman v. Raymond, 5 Wis. 
 185; Frederick v. Bank, 106 111. 147; Lam- 
 phear v. Lamprey, 4 Mass. 107; Walker v. 
 Spencer, 86 N. Y. 162. A decree is final for 
 the purposes of an appeal when it terminates 
 the litigation between the parties on the 
 merits of the case and leaves nothing to be 
 done but to enforce what has been determin- 
 ed; St. Louis, I. M. & S. R. R. Co. v. South- 
 ern Co., 108 U. S. 24, 2 Sup. Ct. 6, 27 L. Ed. 
 638; Bostwick v. Brinkerhoff, 106 U. S. 3, 1 
 Sup. Ct. 15, 27 L. Ed. 73 ; Grant v. Ins. Co., 
 106 U. S. 429, 1 Sup. Ct. 414, 27 L. Ed. 237. 
 Before an appeal can be prosecuted by one 
 of several defendants, the case should be 
 determined as to all ; Meagher v. Mfg. Co., 
 145 U. S. 611, 12 Sup. Ct. 876, 36 L. Ed. 834. 
 In equity cases all parties against whom a 
 joint decree is rendered must join in an ap- 
 peal, if any be taken; and when only one 
 takes an appeal, and there is nothing in the 
 record to show that the others were applied 
 to and refused to appeal, and no order is 
 entered by court, on notice, granting him a 
 separate appeal, his appeal cannot be sus- 
 tained ; Beardsley v. R. Co., 158 U. S. 123, 
 15 Sup. Ct. 7S6, 39 L. Ed. 919. 
 
 A writ of error is the means of bringing 
 under review by an appellate court, for re- 
 vision and correction, the judgment in an 
 action at law of an inferior court of record, 
 when the proceedings are according to the 
 course of the common law. See Writ of 
 Error. In cases in which the proceedings 
 are summary or different from the course of 
 the common law they are reviewed by Cer- 
 tiorari. See that title. And in England the 
 judgments of inferior courts not of record 
 were brought up for review by writ of false 
 judgment. See False Judgment. 4 Archb. 
 Pr. 4, quoted in Ex parte Henderson, 6 Fla. 
 279. 
 
 A writ of error is considered, generally, as 
 a new action ; Gregg v. Bethea, 6 Porter 
 (Ala.) 9. It does not vacate the judgment" 
 of the court below ; that continues in force 
 until reversed ; Railway Co. v. Twombly, 
 100 U. S. 81, 25 L. Ed. 550. If such writ cm 
 ever be issued nunc pro tunc after the lapse 
 of time allowed by law for bringing suits in 
 error, the default must be attributable solely 
 to official delinquency ; Knight & Knight v. 
 Towles, 32 Fla. 473, 14 South. 91. 
 Bouv.— 14 
 
 If the common law is adopted in a state, 
 the writ of error is introduced as pan .if 
 that system; Moore v. Harris, l t,- 
 but it is said that it is nut a new action. 
 but a continuation of the same one transfer- 
 red to the appellate court for review • Cor- 
 bett v. Territory, 1 Wash. T. 4.".1 ; the allow- 
 ance of such a writ is a matter of Judicial 
 determination on consideration of the suffi- 
 ciency of the grounds for it stated in the pe- 
 tition and assignment of errors; Simpson v. 
 Hank, 128 Fed. 257, 63 C. C. a. 371; an ap- 
 peal is a matter of ri.L'ht : Lockman v. Lang, 
 132 Fed. l. 65 O. 0. A. 623 : Simpson v. I 
 129 Fed. 257, 63 C. C. A. 371; where it was' 
 said, in reference to the rule requiring filing 
 of an assignment of error, "no court or judge 
 has any jurisdiction or power to condition 
 allowance of an appeal upon his considera- 
 tion or determination of the question whether 
 or not the applicant presents alleged errors, 
 which form reasonable grounds for the re- 
 view of the decision below. That question Is 
 reserved for the consideration of the appel- 
 late court exclusively"; and it was held 
 (hat, notwithstanding the rule, the assign- 
 ment of errors need not be filed before an al- 
 lowance of appeal. 
 
 Where one court administers law and equi- 
 ty, an appeal and writ of error are some- 
 times taken in a case, because of doubt 
 whether it is strictly legal or equitable. An 
 appeal and writ of error to review the same 
 adjudications is not only proper, but com- 
 mendable, where there is just reason tr> doubt 
 which is the proper proceeding to give juris- 
 diction to the appellate court and that one 
 will be dismissed which is ineffective, and 
 the case will be reviewed according to tin- 
 rules of the method applicable to it : Lock- 
 man v. Lang. 132 Fed. 1, 65 C. C. A. C21 ; but 
 some courts hold that the two remedies can- 
 not be pursued simultaneously, but that an 
 appeal must be dismissed before a writ of 
 error is taken ; Slate v. Thompson, 30 Mo. 
 App. 503. 
 
 While the word appeal has a strict tech- 
 nical definition, it is frequently used as em- 
 bracing all kinds of proceedings for the re- 
 view of causes ; City of Rock ford v. Conip- 
 ton, 115 111. App. 406; but in states adhering 
 to common law forms an appeal will not lie 
 from a judgment at law; Files v. Broun. 
 124 Fed. 133, 59 C. C. A. 403 : Roberts v. Ry. 
 Co., 13S Fed. 711, 71 C. C. A. 127; Trabue v. 
 Williams, 46 Fla. 228, 35 South. 872; Sw- 
 ings v. Hotline, 67 Neb. 26, 83 N. W. 186; 
 and in jurisdictions where the same courts 
 administer both law and equity appeals and 
 proceedings for review for errors of law are 
 frequently governed by like rules ; Traders' 
 Ins. Co. v. Carpenter, 85 Iud. 350. A writ 
 of error is the proper method of reviewing a 
 judgment of the Bupreme court of a territo- 
 ry in an action at law tried without a jury ; 
 National Live Stock Bank of Chicago v.
 
 APPEAL AND ERROR 
 
 210 
 
 APPEAL AND ERROR 
 
 Bank, 203 U. S. 296, 27 Sup. Ct. 79, 51 L. 
 Ed. 192. 
 
 Where a common law form of reviewing 
 statutory proceedings does not exist or is not 
 resorted to, the conditions and form of ap- 
 peal depend entirely upon statute and can* 
 not be changed or aided by judicial action; 
 People's Ice Co. v. The Excelsior, 43 Mich. 
 336, 5 N. W. 398. An appeal is a continuation 
 of a suit, whereas a writ of error is consid- 
 ered a new action; Macklin v. Allenberg, 
 100 Mo. 337, 13 S. W. 350 ; the right of ap- 
 peal in civil actions being unknown to the 
 common law and of statutory origin, it is 
 necessary that the requirements of the stat- 
 ute be strictly complied with to confer ju- 
 risdiction on the appellate courts; Arkansas 
 & O. R. Co. v. Powell, 104 Mo. App. 362, 80 
 S. W. 336. 
 
 A writ of error is a writ of right which is 
 grantable ex debito justitice; Skipwith v. 
 Hill, 2 Mass. 35. The right to an appeal 
 or writ of error cannot be refused, how- 
 ever indifferent or baseless the demand on the 
 merits may be ; People v. Knickerbocker, 114 
 111. 539, 2 N. E. 507, 55 Am. Rep. 879 ; State v. 
 Judge of Superior District Court, 2S La. Ann. 
 547 ; McCreary v. Rogers, 35 Ark. 298 ; Ridge- 
 ly v. Bennett, 13 Lea (Tenn.) 206. It is the 
 constitutional right of every citizen to have 
 his case reviewed in one form or another by a 
 court of error; 1 Bland. 5; but in another 
 state it is said not to be a constitutional 
 right but subject to legislative control ; Mes- 
 senger v. Teagan, 106 Mich. 654, 64 N. W. 
 499. A suit at law can be reviewed only on 
 writ of error; Behn, M. & Co. v. Campbell, 
 205 U. S. 403, 27 Sup. Ct 502, 51 L. Ed. 857; 
 and an equity cause cannot be reviewed on 
 writ of error; Files v. Brown, 124 Fed. 133, 
 59 C. C. A. 403; Nelson v. Lowndes County, 
 93 Fed. 538, 35 C. C. A. 419; Grooms v. 
 Wood, 43 Fla. 50, 29 South. 445; Ex parte 
 Sanford, 5 Ala. 562; Delaplaine v. City of 
 Madison, 7 Wis. 407; Evans v. Hamlin, 164 
 Mass. 239, 41 N. EL 267; Hayes v. Fischer, 
 102 U. S. 121, 26 L. Ed. 95. But see contra, 
 Woodard v. Glos, 113 111. App. 353; but the 
 error of a chancellor in refusing to grant an 
 appeal on dismissal of injunction bill should 
 be corrected by writ of error ; Boyd v. Knox 
 (Tenn.) 53 S. W. 972. A writ of error will 
 not lie in a divorce case, an appeal is the 
 only remedy; Miller v. Miller, 3 Binn. (Pa.) 
 30; Parmenter v. Parmenter, 3 Head (Tenn.) 
 225. But this does not apply to a decree for 
 alimony, which is subject to revision by writ 
 of error; McBee v. McBee, 1 Heisk. (Tenn.) 
 558; an appeal and not a writ of error is 
 the proper proceeding to review probate or- 
 ders; Horner v. Goe, 54 111. 285; Peckham 
 v. Hoag, 92 Mich. 423, 52 N. W. 734; Shay 
 v. Henk, 49 Pa. 79; but a writ of error 
 lies to revise probate proceedings which are 
 strictly according to the course of the com- 
 mon law ; Fitzgerald v. Com., 5 Allen (Mass.) 
 509; or a proceeding for the probate of a 
 
 will in which the parties have a right to a 
 jury trial ; Ormsby v. Webb, 134 U. S. 47, 10 
 Sup. Ct. 478, 33 L. Ed. 805 ; or where a case 
 had been appealed from the probate court to 
 a law court and the decree affirmed; Brun- 
 son v. Burnett, 1 Chand. (Wis.) 9. A writ of 
 error will lie in cases where an appeal is not 
 allowed; Ex parte Thistleton, 52 Cal. 220; 
 Haines v. People, 97 111. 161; or if the ag- 
 grieved party cannot avail himself of an ap- 
 peal ; Valier v. Hart, 11 Mass. 300. 
 
 In an appellate court it is the general 
 rule that findings of fact in the trial court 
 are conclusive ; E. Bement & Son v. Harrow 
 Co., 186 U. S. 70, 22 Sup. Ct. 747, 46 L. Ed. 
 1058; American Bridge Co. v. R. Co., 135 
 Fed. 323, 68 C. C. A. 131 ; Smith v. City of 
 Buffalo, 159 N. Y. 427, 54 N. E. 62; Fitch- 
 burg R. Co. v. Freeman, 12 Gray (Mass.) 401, 
 74 Am. Dec. 600; Hoffman v. Silverthorn, 
 137 Mich. 60, 100 N. W. 183 ; Jersey City v. 
 Tallman, 60 N. J. L. 239, 37 Atl. 1026; Ap- 
 peal of Melony, 78 Conn. 334, 62 Atl. 151; 
 and when the case is tried by the court, with- 
 out a jury, the findings of the trial judge 
 are as conclusive as the verdict of a jury ; 
 York v. Washburn, 129 Fed. 564, 64 C. C. A. 
 132 ; Bell v. Wood, 87 Ky. 56, 7 S. W. 550 ; 
 Rademacher v. Greenwood, 114 111. App. 542; 
 Rauen v. Ins. Co., 129 la. 725, 106 N. W. 198 ; 
 but when the appellate court is convinced 
 that the premise upon which the lower court 
 acted is without any support in the evidence, 
 and that its finding is clearly erroneous, it 
 may be disregarded ; Darlington v. Turner, 
 202 U. S. 195, 26 Sup. Ct. 630, 50 L. Ed. 992 ; 
 U. S. v. Puleston, 106 Fed. 294, 45 C. C. A. 
 297; Petition of Barr, 188 Pa. 122, 41 Atl. 
 303; Brown v. Brown, 174 Mass. 197, 54 N. 
 E. 532, 75 Am. St. Rep. 292 ; Menz v. Beebe, 
 102 Wis. 342, 77 N. W. 913, 78 N. W. 601. 
 
 Cross appeals in equity must be prosecuted 
 like other appeals ; Farrar v. Churchill, 135 
 U. S. 609, 10 Sup. Ct. 771, 34 L. Ed. 246. 
 Where defendant appeals from part of the 
 decree, which is affirmed, and the plaintiff 
 thereafter appeals from the other part of 
 the decree, a motion to dismiss will be de- 
 nied ; State v. R. Co., 99 Minn. 280, 109 N. 
 W. 238, 110 N. W. 975. 
 
 A federal appellate court in reversing a 
 judgment for the plaintiff cannot direct a 
 judgment for defendant, notwithstanding a 
 verdict for the plaintiff, since under the 
 VII th Amendment of the Constitution the 
 only course is to order a new trial, and this 
 is true notwithstanding the state statute and 
 practice authorizes such action ; Slocum v. 
 Ins. Co., 228 U. S. 364, 33 Sup. Ct. 523, 57 L. 
 
 Ed. ; Pederson v. R. Co., 229 U. S. 146, 
 
 33 Sup. Ct. 648, 57 L. Ed. ; but this 
 
 amendment is not applicable to the state 
 courts ; Slocum v. Ins. Co., 228 U. S. 364, 33 
 
 Sup. Ct. 523, 57 L. Ed. ; and the reversal 
 
 of a cause upon the facts and rendition of 
 final judgment by the appellate court is gen- 
 erally held not to be an infringement of the
 
 APPEAL AND ERROR 
 
 211 
 
 APPEAL AND ERROR 
 
 right of trial by jury secured by the state 
 constitutions; Borg v. R. Co., 102 111. 348, 
 
 44 N. E. 722; Giimi v. R. Co., 27 R. I. 320, 
 62 Atl. 118, 2 L. R. A. (N. S.) 362 : id., 27 R. 
 I. 432, 63 Atl. 239, 2 L. R. A. (X. S.) 883 ; nor 
 is the constitutional guaranty infringed by 
 a statute authorizing the appellate court to 
 make findings of facts "which .shall be final 
 and conclusive as to all matters of fact in 
 controversy in such cause"; Larkina v. R. 
 Ass'n, 221 111. 428, 77 X. B. 078 ; nor does it 
 imply that a verdict on an issue of fact Is 
 beyond the controlling power of the trial or 
 appellate court, to be exorcised to prevent in- 
 justice; Chitty v. Ry. Co., 148 Mo. 04, 49 S. 
 W. SOS; nor does a statute authorizing the 
 appellate court to reverse for excessive dam- 
 ages ; Smith v. Pub. Co., 178 Pa. 481, 3G Atl. 
 290, 35 L. R. A. 819; nor an act authorizing 
 such court to affirm, reverse, amend or modi- 
 fy a judgment without returning the record 
 to the court below ; or to order a verdict and 
 judgment to be set aside and a new trial 
 had; Nugent v. Traction Co., 183 Pa. 142. 38 
 Atl. 5S7 ; where the damages are excessive 
 the appellate court may require the plaintiff 
 to remit the excess as a condition of affirm- 
 ance without depriving either party of his 
 right to trial by jury ; Burdict v. Ry. Co., 
 123 Mo. 221, 27 S. W. 453, 20 L. R. A. 384, 
 
 45 Am. St. Rep. 52S ; Texas & N. O. R. Co. 
 v. Syfan, 91 Tex. 502, 44 S. W. 1004; but 
 where the jury finds the charge of negligence 
 not sustained by the facts, the court cannot 
 disturb the verdict, though it be of a differ- 
 ent opinion ; Gibson v. City of Huntington, 
 38 W. Va. 177, 18 S. E. 447, 22 L. R. A. 501, 
 45 Am. St Rep. 853. 
 
 Harmless error is no cause for reversal : 
 Townsend v. Bell, 107 N. Y. 402, GO N. E. 
 757; Springer v. Lipsis, 209 111. 204, 70 X. E. 
 041 ; O'Donnell v. Ins. Co., 73 Mich. 1, 41 N. 
 W. 95 ; nor intermediate error where the ul- 
 timate judgment is right ; Orr v. Leathers, 
 27 Ind. App. 572, 61 N. E. 941; Inhabitants 
 of Winslow v. Troy. 07 Me. 130, 53 Atl. 1008; 
 nor, when the losing party is not entitled to 
 recover in any event, can he be heard to 
 complain of error at the trial ; Wood v. 
 Wyeth, 100 App. Div. 21, 94 X. Y. Supp. 300; 
 nor where, if the error did not prejudice the 
 party against whom it was committed : Ar- 
 mour & Co. v. Russell, 144 Fed. 614, 75 C. C. 
 A. 416, 6 L. R. A. (X. S.) 002; Strever v. 
 Ry. Co., 106 la. 137, 70 X. W. 513. 
 
 Judgments will be reversed where the 
 court below erred in failing to sustain a de- 
 murrer to one of several paragraphs of the 
 declaration or complaint, and it cannot be 
 determined on which paragraph or count 
 the verdict was based; Gendron v. St. Pierre, 
 72 N. H. 400, 50 Atl. 915; Bohler v. Hicks, 
 120 Ga. 800, 48 S. E. 300 ; or where evidence 
 was improperly admitted, prejudice being 
 presumed ; Xational Biscuit Co. v. Xolan, 138 
 Fed. 6, 70 C. C. A. 430 ; Inhabitants of Way- 
 land v. Inhabitants of Ware, 109 Mass. 248; 
 
 or on the exclusion of evld< ! 
 presumption applying; Westall v. Osl 
 115 Fed 282 . C. a. 74 ; I 
 
 Ehrich, 178 X. Y. 474, 71 X. E. 12 j 
 an erroneous instruction on a ma;. 
 (unless it clearly appears to i 
 harmless] ; Podhaisky v. City of Cedar Lap- 
 ids, 106 la. 543, 76 X. w. 847; W ard v. 
 Ward, 47 w. Va. 7<;r,. 35 S. E. 873; Neal v. 
 Brandon, 70 Ark. 7!t, 66 S. W. 200. 
 
 A party cannot complain of error in his 
 own favor; Copeland v. Dairy Co.. 189 
 342, 75 X. E. 7(i4; Drown v. Hamilton, I 
 H. 23, 44 Atl. 79; Fredrick Mfg. Co. v. Dev- 
 lin, 127 Fed. 71, 62 C. C. A. 53; Lowenthal 
 v. Lowenthal, 157 N. Y. 230, 51 X. 1 
 Questions not presented by the record can- 
 not be considered on appeal; Inhabitants of 
 New Marlborough v. Brewer, 17m Masa 162, 
 48 N. E. 3089; Huff v. Cole's Estate, 127 
 Mich. 351, 80 X. W. 835; Lewis v. Lev 
 X. J. L. 251, 49 Atl. 453 : Morgan v. Oh 
 Ind. 390; otherwise, sometimes, in criminal 
 cases; Crawford v. U. S., 212 O. S. 183, 29 
 Sup. Ct. 200, 53 L. Ed. 405, 15 Ann. Cas. 392. 
 
 When a cause conies before the court on a 
 second appeal all matters passed on in the 
 former decision are res judicata; Chapman 
 v. Ry. Co., 140 Mo. 481, 48 S. W. 040; a re- 
 hearing will be denied ; Pretzfelder v. Ins. 
 Co., 12.". X. C. 104, 31 S. E. 470, 44 L. R. A. 
 424; the law as determined in the former 
 decision whether right or wrong binds the 
 court on a suhsequent appeal; Hopkins v. 
 Grocery Co., 105 Ky. 357. 4'.> S. YV. IS; Mead 
 v. Tzschuck, 57 Xeb. 015, 78 X. W. 202. 
 See Law op the Case. 
 
 Where the supreme court affirms the decree 
 in all respects but one, on subsequent appeal 
 only this one particular point can be review- 
 ed; Illinois v. R. Co., 184 L". S. 77, 22 Sup. 
 Ct. 300, 40 L. Ed. 440. Ordinarily when the 
 court is equally divided on appeal, the decree 
 of the lower court is affirmed. But see 39 
 Nova Scotia 1, where the appeal was al- 
 lowed. 
 
 It is a general rule of the law that all the 
 judgments, decrees, or orders, however e< in- 
 clusive in their character, are under the con- 
 trol of the court which pronounces them dur- 
 ing the term at which they are rendered or 
 entered of record, and may then be set aside, 
 vacated, modified, or annulled by that court; 
 Bronson v. Schulten, 104 U. S. 415, 26 L. Ed. 
 797. 
 
 The Supreme Court disapproves the prac- 
 tice in an appellate court of reserving a judg- 
 ment on one of a number of assigned errors 
 without passing on the others, as likely to 
 involve duplicate appeals: Bierce v. Water- 
 bouse. 219 I'. S, 320, 21 Sup. Ct. 241, 55 L. 
 Ed. 237. 
 
 As to the practice when the appellant is 
 deprived of his bill of exceptions by the 
 death of the judge, etc., see New Tkial. 
 
 See Bill of Exceptions; Jurisdiction; 
 Wii.iT of Error; United States Coubts.
 
 APPEAL AND ERROR 
 
 212 
 
 APPEARANCE 
 
 In the United States Supreme Court a 
 defendant in error or appellee may file a 
 confession of error, and thereupon the judg- 
 ment will be reversed and the cause remand- 
 ed, with proper directions. 
 
 APPEARANCE. A coining into court as 
 party to a suit, whether as plaintiff or de- 
 fendant. 
 
 The former proceeding by which a defend- 
 ant submits himself to the jurisdiction of the 
 court. Tr. & H. Prac. 226, 271. 
 
 Appearance anciently meant an actual coming 
 Into court, either in person or by attorney. It is 
 so used both in the civil and the common law. It 
 Is indicated by the word "comes," "and the said 
 C. D. comes and defends," and, in modern practice, 
 is accomplished by the entry of the name of thr 
 attorney of the party in the proper place on the 
 record, or by filing bail where that is required. Ii 
 was a formal matter, but necessary to give the 
 court jurisdiction over the person of the defendant. 
 
 A time is generally fixed within which the de- 
 fendant must enter his appearance; formerly in 
 England and elsewhere, the quarto die post (q. v.). 
 If the defendant failed to appear within this period, 
 the remedy in ancient practice was by distress 
 infinite when the injuries were committed without 
 force, and by capias or attachment when the inju- 
 ries were committed against the peace, that is, 
 were technical trespasses. But, until appearance, 
 the courts could go no further than apply this pro- 
 cess to secure appearance. See Process. 
 
 In modern practice, a failure to appear generally 
 entitles the plaintiff to judgment against the de- 
 fendant by default, if, of course, the court has ju- 
 risdiction of the cause. 
 
 It may be of the following kinds: — 
 
 Compulsory. — That which takes place in 
 consequence of the service of process. 
 
 Conditional. — One which is coupled with 
 conditions as to its becoming general. 
 
 De bene esse. — One which is to remain an 
 appearance, except in a certain event. See 
 De Bene Esse. 
 
 General. — A simple and absolute submis- 
 sion to the jurisdiction of the court. See 
 infra. 
 
 Gratis. — One made before the party has 
 been legally notified to appear. 
 
 Optional. — One made where the party is 
 not under any obligation to appear, but does 
 so to save his rights. It occurs in chancery 
 practice, especially in England. 
 
 Special. — That which is made for certain 
 purposes only, and does not extend to all 
 the purposes of the suit; as to contest the 
 jurisdiction, or the sufficiency of the service. 
 See infra. 
 
 Subsequent.— An appearance by the de- 
 fendant after one has already been entered 
 for him by the plaintiff. See Dan. Ch. Pr. 
 
 Voluntary. — That which is made in an- 
 swer to a subpoena or summons, without pro- 
 cess; 1 Barb. Ch. Pr. 77. 
 
 How to be made. — On the part of the plain- 
 tiff no formality is required. On the part of 
 the defendant it may be effected by making 
 certain formal entries in the proper office of 
 the court, expressing his appearance ; Zion- 
 Church v. Church, 5 W. & S. (Pa.) 215 ; Eas- 
 ton v. Altum, 1 Scam. (111.) 250; Griffin v. 
 Samuel, 6 Mo. 50; Bennett v. Stickney, 17 
 
 Vt. 531; Rose v. Ford, 2 Ark. 26, Scott v. 
 Hull, 14 Ind. 136; or in case of arrest, la 
 effected by giving bail ; or by putting in an 
 answer ; Livingston v. Gibbons, 4 Johns. Ch. 
 (N. Y.) 94; Hayes v. Shattuck, 21 Cal. 51; 
 President, etc., of Insurance Co. of North 
 America v. Swineford, 2S Wis. 257; or a 
 demurrer; State v. People, 6 Pet. (U. S.) 323, 
 8 L. Ed. 414; Kegg v. Welden, 10 Ind. 550; 
 or notice to the other side; Livingston v. 
 Gibbons, 4 Johns. Ch. (N. Y.) 94; or motion 
 for continuance; Shaffer v. Trimble, 2 
 Greene (la.) 464; or taking an appeal; Wea- 
 ver v. Stone, 2 Grant (Pa.) 422; appearance 
 and offer to file answer; Tennison v. Tenni- 
 son, 49 Mo. 110 ; or motion to have an inter- 
 locutory order set aside; Tallman v. McCar- 
 ty, 11 Wis. 401. 
 
 A general appearance waives all question 
 as to the service of process and is equivalent 
 to a personal service; Piatt v. Manning, 34 
 Fed. 817 ; Continental Casualty Co. v. Sprad- 
 lin, 170 Fed. 322, 95 C. C. A. 112 ; Moulton v. 
 Baer, 78 Ga. 215, 2 S. E. 471 ; Birmingham 
 Flooring Mills v. Wilder, 85 Ala. 593, 5 
 South. 307 ; but it does not cure want of 
 jurisdiction of subject matter ; Wheelock v. 
 Lee, 74 N. Y. 495 ; St. Louis & S. F. R. Co. 
 v. Loughmiller, 193 Fed. 689 ; a general ap- 
 pearance in a federal court waives the de- 
 fence that the defendant was not served in 
 the district of which he was an inhabitant; 
 Foote v. Ben. Ass'n, 39 Fed. 23; Betzoldt v. 
 Ins. Co., 47 Fed. 705. A general appearance 
 may be amended so as to make it special; 
 Hohorst v. Packet Co., 38 Fed. 273. 
 
 It is not a general appearance where the 
 question of jurisdiction of the person is rais- 
 ed by motion to quash for want of jurisdic- 
 tion ; McGillin v. Claflin, 52 Fed. 657; or 
 petition to quash the writ; Turner v. Larkin, 
 12 Pa. Sup. Ct. 284. In general, however, 
 when that objection is raised, the appear- 
 ances should be specially restricted ; Nich- 
 oles v. People, 165 111. 502, 46 N. E. 237; 
 Reed v. Chilson, 142 N. Y. 152, 36 N. E. 884 ; 
 if by motion or otherwise he seeks to bring 
 into action the powers of the court, he will 
 be deemed to have appeared generally ; New- 
 love v. Woodward, 9 Neb. 502, 4 N. W. 237. 
 If a special appearance is entered to contest 
 jurisdiction, it becomes general if a defense 
 is made to the merits ; Sanderson v. Bishop, 
 171 Fed. 769. 
 
 A special appearance to raise the question 
 of judicial action does not amount to a gen- 
 eral appearance ; Commercial Mut. Accident 
 Co. v. Davis, 213 U. S. 245, 29 Sup. Ct. 445, 53 
 L. Ed. 782. A special appearance entered 
 to contest the jurisdiction will not operate 
 to waive objection to illegal or insufficient 
 service; Lathrop-Shea & Henwood Co. v. 
 Const. Co., 150 Fed. 666 (citing many Su- 
 preme Court cases where such appearance is 
 recognized) ; Remington v. Ry. Co., 198 U. S. 
 95, 25 Sup. Ct. 577, 49 L. Ed. 959; Powers 
 v. Ry. Co., 169 U. S. 92, 18 Sup. Ct. 264, 42
 
 APPEARANCE 
 
 213 
 
 APPEARANCE 
 
 L. Ed. 673; Courtney v. Pradt, 196 U. S. 89, 
 25 Sup. Ct. 208, 49 L. Ed. 388; and the effect 
 of such appearance is not enlarged by dis- 
 cussion of the merits in connection with the 
 plea ; Citizens' Savings & Trust Co. v. R. Co., 
 205 U. S. 46, 27 Sup. Ct. 425, 51 L. Ed. 703; 
 nor by the removal of the cause; Goldey v. 
 Morning News, 156 D. S. 518, 15 Sup. Ct 559, 
 39 L. Ed. 517 ; even if the petition for re- 
 moval does not specify or restrict the pur- 
 pose of the appearance and is not accom- 
 panied by a plea in abatement; National Ac- 
 cident Society v. Spiro, 104 U. S. 281, 17 Sup. 
 Ct. 990, 41 L. Ed. 435. Filing a petition to 
 remove is not a general appearance; Spreen 
 v. Delsignore, 94 Fed. 71. / 
 
 Where defendant files a formal appearance 
 and simultaneously an exception to the ju- 
 risdiction, the two papers should be consid- 
 ered together and cannot be regarded as con- 
 sent to the jurisdiction where consent is nec- 
 essary; Wood v. Lumber Co., 226 U. S. 384, 
 33 Sup. Ct 125, 57 L. Ed. . 
 
 It does not amount to a general appear- 
 ance that a defendant not served is examined 
 as a witness; Nixon, v. Downey, 42 la. 78; 
 Schroeder v. Lahrman, 26 Minn. 87, 1 N. \V. 
 801; or is present when depositions are tak- 
 en; Bentz v. Eubanks, 32 Kan. 321. 4 Pad 
 269; Anderson v. Anderson, 55 Mo. App. 26S; 
 Scott v. Hull, 14 Ind. 136; or in the court 
 room during the trial ; Tiffany v. Gilbert, 4 
 Barb. (N. Y.) 320; Newlove v. Woodward, 9 
 Neb. 502, 4 N. W. 237; Crary v. Barber, 1 
 Colo. 172. 
 
 Actual or formal appearance is now un- 
 necessary ; Gardiner v. McDowell's Adm'r, 
 Wright (Ohio) 762; Byrne v. Jeffries, 38 
 Miss. 533 ; and a formal entry of one is un- 
 known in Louisiana ; Stoker v. Leavenworth, 
 7 La. 390. It need not be by any formal act 
 or words in court ; Harrison v. Morton, 87 
 Md. 671, 40 Atl. 897; Salina Nat. Bank v. 
 Prescott, 60 Kan. 490, 57 Pac. 121; Rhoades 
 v. Delaney, 50 Ind. 46S. It is generally done 
 by entry of the attorney's name on the dock- 
 et opposite the party's name; Romaine v. 
 Ins. Co., 28 Fed. 625 (where the practice is 
 examined at large); Scott v. Israel, 2 Binn. 
 (Pa.) 145 (where the entry of the attorney's 
 name on the docket opposite the names of 
 two defendants, is good as to both, though 
 one was not served); or the initials merely; 
 Kennedy v. Fairman, 2 N. C. 405; or by en- 
 dorsement on the declaration; Byrne, Vance 
 & Co. v. Jeffries, 38 Miss. 533 ; or on the writ 
 waiving service; Harrison v. Morton, 87 Md. 
 671. 40 Atl. S97 ; or any action in court in 
 the case except to object to the jurisdiction ; 
 Audretsch v. Hurst 126 Mich. 301, S5 N. W. 
 746; Warren v. Cook, 116 111. 199, 5 N. E. 
 538; Tippack v. Briant, 63 Mo. 580; People 
 v. Cowan, 146 N. Y. 34S, 41 N. E. 26, and 
 see a variety of cases collected in 3 Cyc. 504, 
 n. 28. 
 
 By whom to be made. — In civil cases it 
 may in general be made either by the party 
 
 or his attorney; and in those cases where 
 it is said that the party must appear i 
 son, it is sufficient if it is so entered on the 
 record; although, in fact, the appearance 
 is by attorney ; Mockey v. I 'ohns. 
 
 (N. \.) 192; Arnold v. Sandford, 14 Johns. 
 (X. Y.) 417. The unauthorized appearance 
 <>f an attorney will not give the court juris- 
 diction: Great West Min. Co. v. Min I 
 Colo. 16, 20 Pac. 771. 13 Am. St. Rep. 204; 
 McNamara v. fan-, m Me. •_"•:>. 24 Atl. 856 
 An appearance by attorney is, in strict- 
 ness, Improper where a party wishes to 
 plead to the jurisdiction of the court, be- 
 cause the appointment « > f an attorney of the 
 court admits its jurisdiction: 1 Chit. I' 
 
 2 Wms. Saund. 209 b; and is insufficient in 
 those cases where the party has not suffi- 
 cient capacity to appoint an attorney. Thus 
 an idiot can appear only in person, and as a 
 plaintiff he may sue in person or by his next 
 friend. 
 
 An infant cannot appoint an attorney: he 
 must, therefore, appear by guardian or pro- 
 chein ami. 
 
 A I mm tie, if of full age. may appear by 
 attorney; if under age, by guardian only. 2 
 Wms. Saund. :;:;ri ; id. 232(a), a. (4); but if 
 so insane as to be incapable of knowing bis 
 mental state he cannot authorize appearance 
 by an attorney. Chase v. Chase. 163 Ind. 
 178, 71 N. E. 485. Process should be served 
 on defendant and the appearance for him 
 should be entered by the guardian or com- 
 mittee; Stoner v. Rlggs, 128 Mich. 120, 87 
 N. W. 109; Rutherford's Lessee v. Folger, 20 
 N. J. L. 115. 
 
 A married woman, when sued without her 
 husband, should defend in person; 1 Wins. 
 Saund. 209 b. When sued jointly with bin" 
 under a statute providing for such suit on 
 their joint contract and that she may defend 
 separately or jointly, an appearance by coun- 
 sel employed by her husband to defend does 
 not bind her; Taylor v. Welslager, 90 Md. 
 414, 45 Atl. 47S. 
 
 The effect of an appearance by the defend- 
 ant is, that both parties are considered to 
 be in court. 
 
 In criminal cases the personal appearance 
 of the accused in court is often necessary. 
 See 2 Burr. 931; id. 1786; 1 W. Bla, 198. 
 The verdict of the jury must, in all rases of 
 treason and felony, be delivered in 
 court, in the presence of the defendant. In 
 cases of misdemeanor, the presence of the 
 defendant during the trial is not essential : 
 Bacon, Abr. Verdict, B; Arch. Cr. PI. (14th 
 ed.) 149. 
 
 No motion for a new trial is allowed un- 
 less the defendant, or, if more than one. the 
 defendants, who have been convicted, are 
 present in court when the motion is made; 
 
 3 M. & S. 10, note: 17 Q. B. 503; 2 Den. Cr. 
 Cas. ;;72, note. But this rule does not apply 
 where the offence of which the defendant 
 has been convicted is punishable by a fine
 
 APPEARANCE 
 
 214 
 
 APPLICATION 
 
 only ; 2 Den. Cr. Cas. 459 ; or where the de- 
 fendant is in custody on criminal process ; 4 
 B. & C. 329. On a charge of felony, a party 
 suing out a writ of error must appear in per- 
 son to assign errors ; and it is said that if 
 the party is in custody in the prison of the 
 county or city in which the trial has taken 
 place, he must he brought up by habeas cor- 
 pus, for the purpose of this formality, which 
 writ must be moved for on affidavit This 
 course was followed in 2 Den. Cr. Cas. 2S7 ; 
 17 Q. B. 317; 8 E. & B. 54 ; 1 D. & B. 375. 
 
 Where a defendant is not liable to per- 
 sonal punishment, hut to a fine, sentence 
 may be pronounced against him in his ab- 
 sence; 1 Chit Cr. L. 695; 2 Burr. 931; 3 
 id. 1780. 
 
 APPELLANT. He who makes an appeal 
 from one court to another. 
 
 APPELLATE JURISDICTION. The ju- 
 risdiction which a superior court has to re- 
 hear causes which have been tried in in- 
 ferior courts. See Appeal and Error. 
 
 APPELLATIO. In Civil Law. An appeal. 
 
 APPELLEE. In Practice. The party in 
 a cause against whom an appeal has been 
 taken. 
 
 APPELLOR. A criminal who accuses his 
 accomplices; one who challenges a jury- 
 
 APPENDAGE. Something added as an 
 accessory to or the subordinate part of an- 
 other thing. State Treasurer v. R. Co., 28 N. 
 J. L 26 ; School Dist. No. 29, Bourbon Coun- 
 ty v. Perkins, 21 Kans. 536, 30 Am. Rep. 447. 
 
 APPENDANT. Annexed or belonging to 
 something superior ; an incorporeal inheri- 
 tance belonging to another inheritance. 
 Cowell ; Termes de la Ley. 
 
 Appendant in deeds includes nothing which is sub- 
 stantial corporeal property, capable of passing by 
 feoffment and livery of seisin. Co. Litt. 121 ; 4 
 Coke 86 ; 8 B. & C. 150 ; 6 Bingh. 150. A matter 
 appendant must arise by prescription; while a mat- 
 ter appurtenant may be created at any time; 2 
 Viner, Abr. 594; 3 Kent 404. 
 
 APPENDITIA (Lat. appendere, to hang to 
 or on). The appendages or pertinances of 
 an estate; the appurtenances to a dwelling, 
 etc. ; thus, pent-houses are the appenditid 
 domus. 
 
 APPERTAINING. Connected with in use 
 or occupancy. Miller v. Mann, 55 Vt 475, 
 479. It does not necessarily import con- 
 tiguity, as does "adjoining," and is there- 
 fore not synonymous with it ; id. 
 
 Peculiar to. Herndon v. Moore, 18 S. C. 
 339, where business "appertaining to minors" 
 is defined as meaning peculiar to minors. 
 
 APPLICATION. The act of making a re- 
 quest for something. It need not be in writ- 
 ing; State v. Stiles, 12 N. J. L. 296. 
 
 A written request to have a certain quan- 
 tity of land at or near a certain specified 
 place, under a statute for location of public 
 land of the state. Duncan's Lessee v. Curry, 
 
 3 Einn. (Pa.) 14 ; Biddle's Lessee v. Dougal, 
 5 Binn. (Pa.) 142. 
 
 A petition. Scott v. Strobach, 49 Ala. 477, 
 4S9. 
 
 The use or disposition made of a thing. 
 
 In Insurance. The preliminary statement 
 made by a party applying for an insurance 
 on life, or against fire. It usually consists 
 of written answers to interrogatories pro- 
 posed by the company applied to, respecting 
 the proposed subject. It corresponds to the 
 "representations" preliminary to maritime 
 insurance. It is usually referred to express- 
 ly in the policy as being the basis or a part 
 of the contract, and this reference creates in 
 effect a warranty of the truth of the state- 
 ments. In an action on a policy, the applica- 
 tion and policy must be construed as one in- 
 strument; Studwell v. Association, 19 N. Y. 
 Supp. 709. If the policy does not make the 
 answers a part of the contract, this will have 
 only the effect of representation; May, Ins. 
 § 159; Columbia Ins. Co. v. Cooper, 50 Pa. 
 331. To constitute a warranty it must be 
 made a part of the policy ; Goddard v. In- 
 surance Co., 67 Tex. 69, 1 S. W. 906, 60 Am. 
 Rep. 1. A mere reference in the policy to 
 the application does not make its answers 
 warranties ; it is a question of intention ; 
 Jefferson Ins. Co. v. Cotheal, 7 Wend. (N. Y.) 
 72, 22 Am. Dec. 567 ; Sheldon & Co. v. Insur- 
 ance Co., 22 Conn. 235, 58 Am. Dec. 420; 
 Commonwealth's Ins. Co. v. Monninger, 18 
 Ind. 352; the courts tend to consider the 
 answers representations, rather than warran- 
 ties, except in a clear case ; Campbell v. In- 
 surance Co., 98 Mass. 381; Miller v. Insur- 
 ance Co., 31 la. 216, 7 Am. Rep. 122 ; Wilson 
 v. Insurance Co., 4 R. I. 141. An oral mis- 
 representation of a material fact will defeat 
 a policy on life or against fire, no less than in 
 maritime insurance, on the ground of fraud; 
 
 1 Phill. Ins. § 650. Misrepresentation as to 
 one of several buildings all being in one 
 policy cannot defeat a recovery on another ; 
 Rogers v. Insurance Co., 121 Ind. 570, 23 N. 
 E. 498. See Representation; Misrepre- 
 sentation; Insurance. 
 
 Of Purchase-Money. The disposition made 
 of the funds received by a trustee on a sale 
 of real estate held under the trust. 
 
 Where there is a general power to sell for 
 the payment of debts, or debts and legacies, 
 the purchaser need not look to the applica- 
 tion of the purchase-money; Bruch v. Lantz, 
 
 2 Rawle (Pa.) 392, 21 Am. Dec. 458 ; Andrews 
 v. Sparhawk, 13 Pick. (Mass.) 393; 1 Beas. 
 69 ; Hauser v. Shore, 40 N. C. 357 ; Gardner 
 v. Gardner, 3 Mas. 178, Fed. Cas. No. 5,227; 
 or so as to legacies where there is a trust 
 for reinvestment; Wormley v. Wormley, 8 
 Wheat (U. S.) 421, 5 L. Ed. 651 ; Grosvenor 
 & Co. v. Austin's Adm'rs, 6 Ohio 114, 25 Am. 
 Dec. 743; where the trust is to pay speci- 
 fied debts, the purchaser must see to the 
 application of the purchase-money ; Gardner 
 v. Gardner, 3 Mas. 178, Fed. Cas. No. 5,227;
 
 APPLICATION 
 
 215 
 
 APPOINTMENT 
 
 Cadbury v. Duval, 10 Pa. 207; 1 Pars. Eq. 
 57; Duffy v. Calvert, Gill (Md.) 487. See 
 note to Elliot v. Merryman, 1 Lead. Cas. Eq. 
 74; Perry, Trusts; Adams, Eq. *155. The 
 doctrine is abolished in England by 23 & 24 
 Vict c. 145, § 29, and is of little importance 
 in the United States; Bisp. Eq. 278. 
 Of Payments. See Appropriation. 
 
 APPOINT. To designate, ordain, pre- 
 scribe, nominate; People v. Fitzsimmons, 08 
 N. Y. 519. 
 
 APPOINTEE. A person who is appointed 
 or selected for a particular purpose; as, the 
 appointee under a power is the person who is 
 to receive the benefit of the power. 
 
 APPOINTMENT. The designation of a 
 person, by the person or persons having au- 
 thority therefor, to discharge the duties of 
 some office or trust. 
 
 The making out a commission is conclusive 
 evidence of an appointment to an office for 
 holding which a commission is required ; 
 Marbury v. Madison, 1 Cr. (U. S.) 137, 2 L. 
 Ed. 00; U. S. v. Bradley, 10 Pet. (U. S.) 343, 
 9 L. Ed. 44S. For a discussion of constitu- 
 tional and statutory limitations of executive 
 and legislative functions in respect to ap- 
 pointments to office, see 30 Amer. & Eng. 
 Corp. Cas. 321, note. 
 
 The governor cannot make a valid appoint- 
 ment to an office which at the time is right- 
 fully held by an incumbent whose term has 
 not expired ; State v. Peelle, 124 Ind. 515, 
 24 N. E. 440, 8 L. R. A. 228. 
 
 As distinguished from an election, it seems that 
 an appointment is generally made by one person, or 
 a limited number acting with delegated powers, 
 while an election is made by all of a class. 
 
 The word is sometimes used in a sense quite akin 
 to this, and apparently derived from it as denoting 
 the right or privilege conferred by an appoint- 
 ment: thus, the act of authorizing a man to print 
 the laws of the United States by authority, and the 
 right thereby conferred, are considered such an ap- 
 pointment, but the right is not an office; Com. v. 
 Binns, 17 S. & R. (Pa.) 219, 233. And see Com. v. 
 Sutherland, 3 S. & R. (Pa.) 157 ; Cooper, Justin. 599, 
 604. 
 
 In Chancery Practice. The exercise of a 
 right to designate the person or persons who 
 are to take the use of real estate. 2 Washb. 
 R. P. 302. 
 
 By tchom to be made. — It must be made 
 by the person authorized ; 2 Bouv. Inst. § 
 1922; who may be any person competent to 
 dispose of an estate of his own in the same 
 manner ; 4 Kent 324 ; including a married 
 woman; 1 Sugd. Pow. 182; 3 C. B. 578; 5 
 id. 741 ; Ladd v. Ladd, 8 How. (U. S.) 27, 12 
 L. Ed. 9G7 ; even though her husband be the 
 appointee ; Rush v. Lewis, 21 Pa. 72 ; or an 
 infant, if the power be simply collateral; 2 
 Washb. R. P. (5th ed.) *317. Where two or 
 more are named as donees, all must in gen- 
 eral join ; Franklin v. Osgood, 14 Johns. 
 (N. Y.) 553 ; but where given to several who 
 act in a trust capacity, as a class, it may 
 be by the survivors ; Peter v. Beverly, 10 
 
 Pet (U. S.) 504, 9 L. Ed. 022 ; Talnter t. 
 Clark, 13 Mete. (Mass.) 220. When sueh a 
 right is devolved upon two executors and 
 two others are named as successors it. 
 of their death, no others can execu 
 trust so long as any one of the four is liv- 
 ing and has not declined the trust, and an 
 administrator c. t. a. will be liable to suit 
 by the succeeding trustee for trust property 
 with which he intermeddles; Hayes v. Pratt, 
 147 U. S. 557, 13 Sup. Ct. 503, ::7 L. Ed. 279. 
 
 Jlow to be made. — A vciy precise compli- 
 ance with the directions of the donor i- 
 
 : IP. Will. 710; fj .Mann. & G. 380; 
 Ladd v. Ladd, 8 How. (V. S.) 30, 12 L. Ed. 
 967; bavin- regard to the Intention, especial- 
 ly in substantial matters; Tudor, Lead. <'as. 
 300; 3 Ves. Ch. 421. It may be a partial 
 execution of the power only, and yet be val- 
 id ; 4 Cruise, Dig. 205; or, if excessive, may 
 be good to the extent of the power; 2 Ves. 
 Sen. 040; 3 Dru. & \Y. :::;:». It must come 
 within the spirit of the power; thus, if thti 
 appointment is to be to and amongst several, 
 a fair allotment must be made to each ; 4 
 Ves. Ch. 771; 2 Vera. Ch. 513; otherwise, 
 where it is to be made to such as the donee 
 may select; 5 Ves. Ch. 857. 
 
 The effect of an appointment is to vest 
 the estate in the appointee, as if conveyed 
 by the original donor;- 2 Washb. R. P. (5th 
 ed.) *320; 2 Crabb. R. P. 720, 741; 2 Sugd. 
 Pow. 22; Jackson v. Veeder, 11 Johns. (N. 
 Y.) 109. Thus where the appointment, after 
 an estate for life, is to a lineal descendant of 
 the testator, but who is a collateral relation 
 of the party exercising the power, the gift 
 is not subject to a collateral inheritance tax ; 
 Com. v. Williams' Ex'rs, 13 Pa. 29. 
 
 See Illusory Appointment; Power. Con- 
 sult 2 Washb. R. P. (5th ed.) *298, 337; Tu- 
 dor, Lead. Cas. ; Chance, Pow. ; 4 Greenl. 
 Cruise, Dig. 
 
 APPOINTOR. One authorized by the 
 donor, under the statute of uses, to execute 
 a power. 2 Bouv. Inst. n. 1923. 
 
 APPORTIONMENT. The division or dis- 
 tribution of a subject-matter in proportion 
 ate parts. Co. Litt. 147; 1 Swanst 37. n. : 
 1 Story, Eq. Jur. (13th ed.) § 475 O. 
 
 Of Contracts. The allowance, in case of 
 the partial performance of a contract, of a 
 proportionate part of what the party would 
 have received as a recompense for the en- 
 tire performance of the contract See gen- 
 erally Ana Contr. 291. 
 
 Where the contract is to do an entire thing 
 for a certain specified compensation, there 
 can be no apportionment; 9 B. & C. 92; 
 Quigley v. De Haas. B2 Pa. -< - ,7: Cox v. R. 
 Co., M Cal. IS: Col. urn v. Hartford. 38 Conn. 
 290; Barker v. Reagan, 4 Heisk. (Tenn.) 590; 
 1 Washb. R. P. I"..'.. .'I'.'. 555; 2 id. 302; but 
 see contra, Hollis v. Chapman, 30 Tex. 1. 
 A contract for the sale of goods is entire; 
 9 B. & C. 3bU; Shinn v. Bodine, 00 Pa. 182,
 
 APPORTIONMENT 
 
 216 
 
 APPORTIONMENT 
 
 100 Am. Dec. 560 ; but where there has been 
 a part delivery of the goods, the buyer is lia- 
 ble on a quantum valebant if he retain the 
 pari delivered. 9 B. & C. 3S6; 10 id. 441; 
 Bowker v. Iloyt, 18 Pick. (Mass.) 555 (but 
 contra in New York and Ohio; Champlin 
 v. Rowley, 13 Wend. (N. Y.) 258; Witherow 
 v. Witherow, 1G Ohio, 238) ; though he may 
 return the part delivered and escape liabili- 
 ties. A contract consisting of several dis- 
 tinct items, and founded on a consideration 
 apportioned to each item, is several ; Lueesco 
 Oil Co. v. Brewer, 66 Pa. 351. The question 
 of entirety is one of intention, to be gathered 
 from the contract. 2 Pars. Contr. (8th ed.) 
 *517. Where no compensation is fixed, the 
 contract is usually apportionable; 3 B. & 
 Ad. 404; Cutter v. Powell, 2 Sm. Lead. Cas. 
 22, note (q. v. on this whole subject). 
 
 Of Annuities. Annuities, at common law, 
 are not apportionable; Wiggin v. Swett, 6 
 Mete. (Mass.) 194, 39 Am. Dec. 716 ; 2 P. W. 
 501; so that if the annuitant died before 
 the day of payment, his representative is en- 
 titled to no proportionate share of the an- 
 nuity for the time which has elapsed since 
 last payment; 16 Q. B. 357; 12 Ves. 484; 
 Heizer v. Heizer, 71 Ind. 526, 36 Am. Rep. 
 202; Nading v. Elliott, 137 Ind. 261, 36 N. E. 
 695; 5 U. C. C. P. 364; Mower v. Sanford, 
 76 Conn. 504, 57 Ath 119, 63 L. R. A. 625, 
 100 Am. St. Rep. 1008 ; Henry v. Henderson, 
 81 Miss. 743, 33 South. 960, 63 L. R. A. 616; 
 Irving v. Rankine, 13 Hun (N. Y.) 147 ; Stew- 
 art v. Swaim, 13 Phila. (Pa.) 185; but by 
 statute 11 Geo. II. it was enacted that an- 
 nuities, rents, dividends, etc., and all other 
 payments of every description made payable 
 at fixed periods, should be apportioned ; 2 
 P. Wms. 501; Gheen v. Osborn, 17 S. & R. 
 (Pa.) 173 ; 3 Kent 471. This has been adopt- 
 ed by statute or decision in many of the 
 states. Equity introduced some exceptions 
 to the general rule that annuities are not ap- 
 portionable, as in the case of those created 
 for maintenance of infants and married wo- 
 men living apart from their husbands; Fish- 
 er v. Fisher, 5 Clark (Pa.) 178; Clapp v. 
 Astor, 2 Edw. Ch. (N. Y.) 379; Kearney v. 
 Cruikshank, 117 N. Y. 95, 22 N. E. 5S0; Chase 
 v. Darby, 110 Mich. 314, 68 N. W. 159, 64 
 Am. St. Rep. 347; 2 P. Wms. 501 ; the rea- 
 son being that by reason of legal disabili- 
 ties the annuitants might be unable to get 
 credit for necessaries ; Tracy v. Strong, 2 
 Conn. 659 ; and the exception has been ex- 
 tended to eleemosynary establishments; 16 
 Beav. 385. Another exception is of an an- 
 nuity accepted in lieu of dower ; Gheen v. 
 Osborn, 17 S. & R. (Pa.) 171; In re Lacka- 
 wanna Iron & Coal Co., 37 N. J. Eq. 26 ; but 
 not when payable at the termination of the 
 yearly periods commencing with the death 
 of testator ; Mower v. Sanford, 76 Conn. 
 504, 57 Atl. 119, 63 L. R. A. 625, 100 Am. St. 
 Rep. 1008. See 63 L. R. A. 616, note. 
 
 Of Wages. Wages are not apportionable 
 
 where the hiring takes place for a definite 
 period; 5 B. & P. 651; 11 Q. B. 755; Olm- 
 stead v. Beale, 19 Pick. (Mass.) 528; Hansell 
 v. Erickson, 28 111. 257; Miller v. Goddard, 
 34 Me. 102, 56 Am. Dec. 638; Sickels v. Pat- 
 tison, 14 Wend. (N. Y.) 257, 28 Am. Dec. 
 527; Hawkins v. Gilbert, 19 Ala. 54; contra, 
 Britton v. Turner, 6 N. H. 481, 26 Am. Dec. 
 713. 
 
 Of Incumbrances. The ascertainment of 
 the amounts which each of several parties 
 interested in an estate shall pay towards 
 the removal or in support of the burden of 
 an incumbrance. 
 
 As between a tenant for life and the re- 
 mainderman, the tenant's share is limited 
 to keeping down the interest ; but not be- 
 yond the amount of rent accruing ; Doane's 
 Ex'r v. Doane, 46 Vt. 485 ; 31 E. L. & E. 345 ; 
 if the principal is paid, the tenant for life 
 must pay a gross sum equivalent to the 
 amount of all the interest he would pay, 
 making a proper estimate of his chances of 
 life ; 1 Washb. R. P. (5th ed.) *96 ; 1 Story, 
 Eq. Jur. ( 13th ed. ) § 487. See Jones v. Sher- 
 rard, 22 N. C. 179 ; Swaine v. Perine, 5 Johns. 
 Ch. (N. Y.) 482, 9 Am. Dec. 318 ; Houghton v. 
 Hapgood, 13 Pick. (Mass.) 158. 
 
 Of Rent. The allotment of their shares 
 in a rent to each of several parties owning it. 
 
 The determination of the amount of rent 
 to be paid when the tenancy is terminated 
 at some period other than one of the regu- 
 lar intervals for the payment of rent. 
 
 An apportionment of rent follows upon ev- 
 ery transfer of a part of the reversion ; Mon- 
 tague v. Gay, 17 Mass. 439; Nellis v. Lath- 
 rop, 22 Wend. (N. Y.) 121, 34 Am. Dec. 285; 
 Reed v. Ward, 22 Pa. 144 ; see Blair y. Clax* 
 ton, 18 N. Y. 529; or where there are sev- 
 eral assignees, as in case of a descent to 
 several heirs ; Bank of Pennsylvania v. Wise, 
 3 Watts (Pa.) 394; Crosby v. Loop, 13 111. 
 625 ; Cole v. Patterson, 25 Wend. (N. Y.) 456 ; 
 10 Coke 128; Comyn, Land. & Ten. 422; 
 where a levy for debt is made on a part of 
 the reversion, or it is set off to a widow for 
 dower ; 1 Rolle, Abr. 237 ; but whoever owns 
 at the time the rent falls due is entitled to 
 the whole; Martin v. Martin, 7 Md. 368, 61 
 Am. Dec. 364; Burden of Thayer, 3 Mete. 
 (Mass.) 76, 37 Am. Dec. 117. See Williams, 
 Ex. (7th Am. ed.) *730. If a tenancy at will 
 is terminated between two rent days by a 
 conveyance of the premises from the land- 
 lord to a third person, the tenant is not lia- 
 ble and the rent cannot be apportioned ; Em- 
 rues v. Feeley, 132 Mass. 346. 
 
 Rent is not, at common law, apportion- 
 able as to time; Smith, Land. & T. 134; 3 
 Kent 470; Menough's Appeal, 5 W. & S. (Pa.) 
 432; Perry v. Aldrich, 13 N. H. 343, 38 
 Am. Dec. 493; Stilwell v. Doughty, 3 Bradf. 
 Surr. (N. Y.) 359. It is apportionable by 
 statute 11 Geo. II. c. 19, § 15; and similar 
 statutes have been adopted in this country 
 to some extent ; . 2 Washb. R, P. (5th ed.)
 
 APPORTIONMENT 
 
 217 
 
 APPOSAL OF SHERIFFS 
 
 ♦289; Perry v. Aldrich, 13 N. H. 343, 38 
 Am. Dec. 493 ; Codman v. Jenkins, 14 Mass. 
 94; 1 Hill, Abr. c. 1G, § 50. In the absence 
 of express statute or agreement, it is not; 
 Dexter v. Phillips, 121 Mass. 178, 23 Aim 
 Rep. 2G1. See Landlord and Tenant. As 
 to apportionment of dividends on stock as 
 between life tenant and remainderman, see 
 Dividend. 
 
 Of Representatives. Representatives shall 
 be apportioned among the several states ac- 
 cording to their respective numbers, count- 
 ing the whole number of persons in each 
 state, excluding Indians not taxed. But 
 when the right to vote at any election for 
 the choice of electors for president and vice- 
 president of the United States, representa- 
 tives in congress, the executive and judicial 
 officers of a state, or the members of the leg- 
 islature thereof, is denied to any of the male 
 inhabitants of such state, being twenty-one 
 years of age, and citizens of the United 
 States, or in any way abridged, except for 
 participation in rebellion, or other crime, 
 the basis of representation therein shall be 
 reduced to the proportion which the number 
 of such male citizens shall bear to the whole 
 number of male citizens twenty-one years of 
 age in such state; Art. 14, § 2, U. S. Const.; 
 Story, Const. 1963. 
 
 The actual enumeration shall be made 
 within three years after the first meeting 
 of the congress of the United States, and 
 within every subsequent term of ten years, 
 in such manner as they shall by law direct. 
 The number of representatives shall not ex- 
 ceed one for every 30,000; but each state 
 shall have at least one representative; U. 
 S. Const Art. 1, § 2. 
 
 The Revised Statutes of the United States 
 provide that from and after March 3, 1893, 
 the house of representatives shall be com- 
 posed of 356 members, and provide the num- 
 ber to which each state is entitled. Upon 
 the admission of a new state, the representa- 
 tives to be assigned to it are in addition to 
 the above 356. 
 
 The first house of representatives consisted of 65 
 members, or one for every 30,000 of the represent- 
 ative population. By the census of 1790, it con- 
 sisted of 106 representatives, or one for every 33,000 ; 
 by the census of 1800, 142 representatives, or one 
 for every 33,000 ; by the census of 1810, 183 repre- 
 sentatives, or one for every 35,000 ; by the census of 
 1820, 213 representatives, one for every 40,000; by 
 the census of 1830, 242 representatives, or one for 
 «very 47,700; by the census of 1840, 223 representa- 
 tives, or one for every 70,680; by the census of 
 1850, and under the act of May 23, 1850, the number 
 of representatives was increased to 233, or one for 
 every 93,423 of the representative population. 
 
 Under the census of 1860, the ratio was ascertained 
 to be for 124,183, upon the basis of 233 members ; but 
 by the act of 4th March, 1862, the number of repre- 
 sentatives was increased to 241. This, by the act 
 of 1872, Feb. 2, Rev. Stat. U. S. 1878, §§ 20, 21, was 
 increased to 292 members, and by act of 1891, Feb. 
 7, the number was increased to 356. By act of Jan. 
 16, 1901, the number was increased to 386 ; and by 
 Act of August 8, 1911, to 433. 
 
 See Representative. 
 
 APPOSAL OF SHERIFFS. The charging 
 them with money received upon account of 
 the Exchequer. 22 & 23 Car. II.; CowelL 
 
 APPOSE R. An officer of the Exchequer, 
 
 whoso duty it was to examine the sheriffs in 
 regard to their accounts handed in to the 
 exchequer. He was also called the foreign 
 apposer. The office is now abolished. 
 
 APPOSTILLE. In French Law. An ad- 
 dition, or annotation, made in the margin 
 of a writing. Merlin, Rcpert. 
 
 APPRAISE. To value property at what 
 it is worth. In a statute directing certain 
 officers to "appraise all taxable property ",' 
 its full and true value in money," the words 
 italicized are superfluous and add no mean- 
 ing which the statute would not have had 
 without them ; Cocheco Mfg. Co. v. Strafford, 
 51 N. H. 455, 482. 
 
 APPRAISEMENT. A just valuation of 
 property. 
 
 Appraisements are required to be made 
 of the property of decedents, of insolvents. 
 and others; an inventory (q. v.) of the goods 
 ought to be made, and a just valuation put 
 upon them. 
 
 APPRAISER. A person appointed by com- 
 petent authority to value goods or real es- 
 tate. An importer is entitled to have a mer- 
 chant appraiser who is familiar with the 
 character and value of the goods in ques- 
 tion, and in a suit brought to recover an 
 excess of duties he may raise the question of 
 want of qualification of the appraiser; Oel- 
 bermann v. Merritt, 123 U. S. 356, 8 Sup. Ct 
 151, 31 L. Ed. 164. As to Board of General, 
 Appraisers, see Customs Duties. As early 
 as Edw. I. the judges were ordered to make 
 provision for appraisers. 
 
 APPRECIATE. To estimate justly. The 
 ability of a testator to appreciate his rela- 
 tion to those who had a claim upon his boun- 
 ty is said to be an element of testamentary 
 capacity; Brace v. Black, 125 HI. oo, 17 N. 
 E. 66. 
 
 APPREHEND. To understand, conceive, 
 believe. Golden v. State, 25 Ga. 527, 531. 
 
 APPREHENSION. The capture or arrest 
 of a person on a criminal charge. 
 
 The word strictly construed means the 
 seizing or taking hold of a man and detain- 
 ing him with a view to his ultimate sur- 
 render. It may be used when he is already 
 in custody; L. R. 9 Q. B. D. 701, Tor,. 
 
 The term apprehension is more often applied to 
 criminal cases, and arrest to civil cases; as, one 
 having authority may arrest on civil process, and 
 apprehend on a criminal warrant. See AHRE6T. 
 
 APPRENTICE. A person bound in the 
 form of law to a master, to learn from him 
 his art, trade, or business, and to serve him 
 during the time of his apprenticeship. 1
 
 APPRENTICE 
 
 218 
 
 APPRENTICESHIP 
 
 Bla. Com. 426 ; 2 Kent 211 ; Alteinus v. Ely, 
 3 Rawle (Pa.) 307. 
 
 Formerly the name of apprentice en la ley was 
 given indiscriminately to all students of law. In 
 the reign of Edward IV. they were sometimes called 
 apprenticii ad barras. And in some of the ancient 
 law-writers the terms apprentice and barrister are 
 synonymous ; Co. 2d Inst. 214 ; Eunomus, Dial. 2, 
 § 53, p. 155; 21 L. Q. R. 353. See Barrister. 
 
 APPRENTICESHIP. A contract by which 
 one person who understands some art, trade, 
 or business, and is called the master, under- 
 takes to teach the same to another person, 
 commonly a minor, and called the appren- 
 tice, who, on bis part, is bound to serve the 
 master, during a definite period of time, in 
 such art, trade, or business. 
 
 The term during which an apprentice is 
 to serve. Pardessus, Droit Comm. n. 34. 
 
 A contract of apprenticeship is not invalid 
 because the master to whom the apprentice 
 is bound is a corporation ; [1S91] 1 Q. B. 75. 
 
 At common law, an infant may bind him- 
 self apprentice by indenture, because it is 
 for his benefit; 5 M. & S. 257; 5 D. & R. 
 339. But this contract, both in England 
 and in the United States, on account of its 
 liability to abuse, has been regulated by 
 statute, and is not binding upon the infant 
 unless entered into by him with the consent 
 of the parent or guardian (the father, if 
 both parents be alive, being the proper party 
 to such consent; Com. v. Crommie, 8 W. & 
 S. [Pa.] 339), or by the parent and guardian 
 for him, with his consent, such consent to be 
 made a part of the contract ; 2 Kent 261 ; 
 Matter of M'Dowle, 8 Johns. (N. Y.) 32S ; 
 Whitmore v. Whitcomb, 43 Me. 458; Balch 
 v. State, 12 N. H. 437; Pierce v. Massen- 
 'burg, 4 Leigh (Va.) 493, 26 Am. Dec. 333; 
 Harney v. Owen, 4 Blackf. (Ind.) 337, 30 Am. 
 Dec. 662; or, if the infant be a pauper, by 
 the proper authorities without his consent; 
 Com. v. Jones, 3 S. & R. (Pa.) 158; Vinal- 
 haven v. Ames, 32 Me. 299; Baker v. Win- 
 frey, 15 B. Monr. (Ky.) 499; Glidden v. 
 Town of Unity, 30 N. H. 104; Brewer v. 
 Harris, 5 Gratt. (Va.) 285. The contract need 
 not specify the particular trade to be taught, 
 but is sufficient if it be a contract to teach 
 such manual occupation or branch of busi- 
 ness as shall be found best suited to the 
 genius or capacity of the apprentice ; Fowl- 
 er v. Hollenbeck, 9 Barb. (N. Y.) 309; Peo- 
 ple v. Pillow, 1 Sandf. (N. Y.) 672. Where 
 the apprentice is bound to accept employ- 
 ment only from the master, but there is no 
 covenant by the latter to provide employ- 
 ment, and the contract may be terminated 
 only by him, it is invalid as being unreason- 
 able and not for the benefit of the infant; 
 45 Ch. Div. 430. In a common indenture of 
 apprenticeship the father is bound for the 
 performance of the covenants by the son; 
 3 B. & Aid. 59. But to an action of covenant 
 against the father for the desertion of the 
 son, it is a sufficient answer that the master 
 
 has abandoned the trade which the son was 
 apprenticed to learn, or' that he has driven 
 the son away by cruel treatment; 4 Eng. L. 
 & Eq. 412; Coffin v. Bassett, 2 Pick. (Mass.) 
 357. 
 
 This contract must generally be entered 
 into by indenture or deed; 4 M. & S. 383; 
 Com. v. Wilbank, 10 S. & R. (Pa.) 416; 
 Squire v. Whipple, 1 Vt. 69; and is to con- 
 tinue, if the apprentice be a male, only dur- 
 ing minority, and if a female, only until she 
 arrives at the age of eighteen; 2 Kent 264; 
 5 Term 715. An apprenticeship other than 
 one entered into by indenture in conformity 
 with the statute is not binding; Lally v. 
 Cantwell, 40 Mo. App. 44. The English stat- 
 ute law has been generally adopted in the 
 United States, with some variations ; 2 Kent 
 264. 
 
 An infant's deed of apprenticeship under 
 the English Employers and Workmen Act of 
 1875, will not bind him unless reasonable 
 and for his benefit ; but this does not mean 
 as to all its terms, since provision for sus- 
 pension of wages during a lockout, due 
 solely to the master, is bad; [1893] 1 Q. B. 
 310 ; but one confined to stoppage by reason 
 of accident beyond control of master is good ; 
 [1899] 2 Q. B. 1. 
 
 The duties of the master are to instruct 
 the apprentice by teaching him the knowl- 
 edge of the art which he has undertaken to 
 teach him, though he will be excused for 
 not making a good workman if the appren- 
 tice is incapable of learning the trade, the 
 burden of proving which is on the master ; 
 Barger v. Caldwell, 2 Dana (Ky.) 131 ; Clan- 
 cy v. Overman, 18 N. C. 402. He ought to 
 watch over the conduct of the apprentice, 
 giving him prudent advice and showing him 
 a good example, and fulfilling towards him 
 the duties of a father, as in his character 
 of master he stands in loco parentis. He 
 is also required to fulfil all the covenants he 
 has entered into by the indenture. He must 
 not abuse his authority, either by bad treat- 
 ment or by employing his apprentice in 
 menial employments wholly unconnected 
 with the business he has to learn, or in any 
 service which is immoral or contrary to law ; 
 4 Clark & F. 234; Hall v. Gardner, 1 Mass. 
 172 ; but may correct him with moderation 
 for negligence and misbehavior ; Com. v. 
 Baird, 1 Ashm. (Pa.) 267; 4 Keb. 661, pi. 50; 
 People v. Sniffen, 1 Wheel. Cr. Cas. (N. Y.) 
 502. He cannot dismiss his apprentice ex- 
 cept by consent of all the parties to the in- 
 denture; Graham v. Graham, 1 S. & R. (Pa.) 
 330; Nickerson v. Easton, 12 Pick. (Mass.) 
 110 ; 2 Burr. 766, 801 ; or with the sanction 
 of some competent tribunal; Powers v. 
 Ware, 2 Pick. (Mass.) 451 ; Warner v. Smith, 
 8 Conn. 14; Carmand v. Wall, 1 Bail. (S. C.) 
 209 ; even though the apprentice should steal 
 his master's property, or by reason of incur- 
 able illness become incapable of service, the
 
 APPRENTICESHIP 
 
 219 
 
 APPRENTICESHIP 
 
 covenants of the master and apprentice 
 being independent; Powers v. Ware, 2 Pick. 
 (Mass.) 451; 2 Dowl. & R. 4G5; 1 B. & C. 
 460; 5 Q. B. 447. If the apprentice proves 
 to be an habitual thief, he may be properly 
 dismissed ; [1891] 1 Q. B. 431. The master 
 cannot remove the apprentice out of the 
 state under the laws of which he was ap- 
 prenticed, unless such removal is provided 
 for in the contract or may be implied from 
 its nature; and if he do so remove him, the 
 contract ceases to be obligatory; Com. v. 
 Edwards, 6 Binn. (Pa.) 202; Com. v. Dea- 
 con, 6 S. & R. (Pa.) 526; Coffin v. Bassett. 
 
 2 Pick. (Mass.) 357; Vickere v. Pierce, 12 
 Me. 315 ; Walters v. Morrow, 1 Houst. (Del.) 
 527. An infant apprentice is not capable in 
 law of consenting to his own discharge ; 
 
 3 B. & C. 484 ; nor can the justices order 
 mouey to be returned on the discharge of 
 an apprentice; Stra. 69; contra, Salk. 67, 
 68, 490 ; 11 Mod. 110 ; 12 id. 498, 553. After 
 the apprenticeship is at an end, the master 
 cannot retain the apprentice on the ground 
 that he has not fulfilled his contract, unless 
 specially authorized by statute. 
 
 An apprentice is bound to obey his master 
 in all his lawful commands, take care of his 
 property, and promote his interest, endeavor 
 to learn his trade or business, and perform 
 all the covenants in his indenture not con- 
 trary to law. He must not leave his mas- 
 ter's service during the terms of his appren- 
 ticeship ; James v. Le Roy, 6 Johns. (N. Y.) 
 274; Coffin v. Bassett, 2 Pick. (Mass.) 357. 
 The apprentice is entitled to payment for 
 extraordinary services when promised by the 
 master ; Ex parte Steiner, 1 Penn. L. Jour. 
 Rep. 368 ; see Bailey v. King, 1 Whart. (Pa.) 
 113, 29 Am. Dec. 42; and even when no ex- 
 press promise has been made, under peculiar 
 circumstances ; Mason v. The Blaireau, 2 
 Cra. (U. S.) 240, 270, 2 L. Ed. 266 ; 3 C. Rob. 
 Adm. 237 ; but see Bailey v. King, 1 Whart. 
 (Pa.) 113, 29 Am. Dec. 42. Upon the death 
 of the master, the apprenticeship, being a 
 personal relation, is dissolved ; Strange 284 ; 
 Eastman v. Chapman, 1 Day (Conn.) 30. 
 
 To be binding on the apprentice, the con- 
 tract must be made as prescribed by statute ; 
 Harper v. Gilbert, 5 Cush. (Mass.) 417; but 
 if not so made, it can only be avoided by the 
 apprentice himself; Fowler v. Hollenbeck, 
 9 Barb. (N. Y.) 309 ; In re McDowle, 8 Johns. 
 (N. Y.) 328; Austin v. McCluney, 5 Strobh. 
 (S. C.) 104 ; and if the apprentice do elect 
 to avoid it, he will not be allowed to recover 
 wages for his services, the relation being 
 sufficient to rebut any promise to pay which 
 might otherwise be implied ; Maltby v. Har- 
 wood, 12 Barb. (N. Y.) 473; Williams v. 
 Finch, 2 id. 208; but see Himes v. Howes, 
 13 Mete. (Mass.) 80. The master will be 
 bound by his covenants, though additional 
 to those required by statute; Davis v. Brat- 
 ton, 10 Humphr. (Tenn.) 179. 
 
 Where an apprentice is employed by a 
 third person without the knowledge or con- 
 sent of the master, the master is 
 his earnings, whether the person who employ- 
 ed him did or did not know that he was an 
 apprentice; James v. Le Roy, «'. Johns. i\. 
 Y.) 274; Bowes v. Tihbets, 7 GreenL (Me.) 
 457 ; but in an action for harboring or en- 
 ticing away an apprentice, a knowledge of 
 the apprenticeship by the defendant is a 
 prerequisite to recovery ; Ferguson v. Tuck- 
 er, 2 Harr. & G. (Md.) 1 32 : Stuart v. Simp- 
 son, 1 Wend. (N. Yj :;t<; ; McKay v. Bryson, 
 27 N. C. 21G. A master is not entitled to the 
 extraordinary earnings which do not inter- 
 fere with his services ; an apprentice is 
 therefore entitled to salvage, in opposition 
 to his master's claim ; Mason v. The Blai- 
 reau, 2 Cra. (U. S.) 270, 2 L. Ed. 206. 
 
 The master has a right of action against 
 any one injuring his apprentice causing a 
 loss of his service ; Ames v. Ry. Co., 117 
 Mass. 541, 19 Am. ,Rep. 426; 11 Ad. & El. 
 301. 
 
 Apprenticeship is a relation which cannot 
 be assigned at common law ; Com. v. Bark- 
 er, 5 Binn. (Pa.) 423 ; Dougl. 70 ; Tucker v. 
 Magee, 18 Ala. 99; 1 Ld. Raym. 683; though, 
 if under such an assignment the apprentice 
 continue with his new master, with the con- 
 sent of all the parties and his own, it will 
 be construed as a continuation of the old 
 apprenticeship ; Dougl. 70 ; Town of Guild- 
 erland v. Town of Knox, 5 Cow. (N. Y.) 363; 
 Shoppard's Adm'r v. Kelly, 2 Bail. (S. C.) 93. 
 But in some states the assignment of in- 
 dentures of apprenticeship is authorized by 
 statute; Com. v. Vanlear, 1 S. & R. (Pa.) 
 249; Com. v. Jones, 3 S. & R. (Pa.) 161; 
 Phelps v. Culver, 6 Vt. 430. See, generally, 
 2 Kent 261;- Bacon, Abr. Master and Berv- 
 ant; 1 Saund. 313. The law of France is 
 very similar to our own ; Pardessus, Droit 
 Comm. nn. 518, 522. 
 
 See Binding Out. 
 
 APPROACH, RIGHT OF. In International 
 Law. The right to draw near to a vessel 
 in order to ascertain the nationality of its 
 flag. In The Marianna Flora, 11 Wheat 
 (U. S.) 43, 44, 6 L. Ed. 405, it was held 
 that the right of approach in time of 
 peace was indispensable for the exercise by 
 public vessels of their authority to arrest 
 pirates and other offenders. Kent under- 
 stood it to be equivalent to the right of visit 
 (q. v.). 1 Kent 153. At present the right 
 of approach has no existence apart from 
 the right of visit. See Visit ; Search. 
 
 APPROBATE AND REPROBATE. la 
 Scotch Law. To approve and reject. To at- 
 tempt to take advantage of one part of a 
 deed and to reject the rest. 
 
 The doctrine of approbate and reprobate 
 is the English doctrine of election. A party 
 cannot both approbate and reprobate the
 
 APPROBATE AND REPROBATE 220 APPROPRIATION OF PAYMENTS 
 
 same deed; 4 Wils. & S. Hou. L. 460; 1 
 Ross, Lead. Cas. 617; Pat. Comp. 710; 1 
 Bell, Comm. 146. 
 
 APPROPRIATION. The perpetual annex- 
 ation of an ecclesiastical benefice which is 
 the general property of the church, to the use 
 of some spiritual corporation, either sole or 
 aggregate. See Impropriation. 
 
 It corresponds with impropriation, which is set- 
 ting apart a benefice to the use of a lay corporation. 
 The name came from the custom of monks in Eng- 
 land to retain the churches in their gift and all the 
 profits of them in proprio usu to their own imme- 
 diate benefit. 1 Burns, Eccl. Law 71. 
 
 To effect a good appropriation, the king's 
 license and the bishop's consent must first 
 be obtained. When the corporation having 
 the benefice is dissolved, the parsonage be- 
 comes disappropriate at common law ; Co. 
 Litt. 46; 1 Bla. Com. 385; 1 Hagg. Eccl. 
 162. There have been no appropriations 
 since the dissolution of monasteries. For 
 the form of an appropriation, see Jacob, In- 
 trod. 411. 
 
 APPROPRIATION OF PAYMENTS. The 
 application of a payment made to a creditor 
 by his debtor, to one or more of several 
 debts. 
 
 The debtor has the first right of appropri- 
 ation ; 2 B. & C. 72. No precise declaration 
 is required of him, his intention (Terhune 
 v. Colton, 12 N. J. Eq. 233; id. 312), when 
 made known, being sufficient; Bayley v. 
 Wynkoop, 5 Gilman (HI.) 449; Randall v. 
 Parramore, 1 Fla. 409; 7 Beav. 10; King v. 
 Andrews, 30 Ind. 429; Jones v. Williams, 
 39 Wis. 300; Hansen v. Rounsavell, 74 111. 
 23S; Levystein v. Whitman, 59 Ala. 345; 
 Adams Exp. Co. t. Black, 62 Ind. 128; Bean 
 v. Brown, 54 N. H. 395. Still, such facts 
 must be proved as will lead a jury to infer 
 that the debtor did purpose the specific ap- 
 propriation claimed ; 4 Ad. & E. 840 ; Self- 
 ridge v. Bank, 8 W. & S. (Pa.) 320 ; Pindall's 
 Ex'r v. Bank, 10 Leigh (Va.) 481 ; Rackley v. 
 Pearce, 1 Ga. 241 ; Hall v. Marston, 17 Mass. 
 575 ; Runyon v. Latham, 27 N. C. 551 ; Mil- 
 ler v. Trevilian, 2 ,Rob. (Ya.) 2, 27; Boutell 
 v. Mason, 12' Vt. 608; Franklin Bank v. 
 Cooper, 36 Me. 222 ; Bosley v. Porter, 4 J. J. 
 Marsh. (Ky.) 621; Mitchell v. Dall, 4 Gill 
 & J. (Md.) 361. An entry made by the debt- 
 or in his own book at the time of payment 
 is an appropriation, if made known to the 
 creditor ; but otherwise, if not made known 
 to him. The same rule applies to a cred- 
 itor's entry communicated to his debtor; 2 
 B. & C. 65; Van Rensselaer's Ex'rs v. ;Rob- 
 erts, 5 Denio (N. Y.) 470; Seymour v. Mar- 
 vin, 11 Barb. (N. Y.) 80. The appropriation 
 must be made by the debtor at or before the 
 time of payment; suit fixes the appropria- 
 tion ; Haynes v. Waite, 14 Cal. 446 ; Frazer 
 v. Miller, 7 Wash. 521, 35 Pac. 427. The 
 intention to appropriate may be referred to 
 the jury on the facts of the transaction ; 
 
 West Branch Bank v. Moorehead, 5 W. & 
 S. (Pa.) 542. 
 
 The creditor may apply the payment, as a 
 general rule, if the debtor does not ; Jones 
 v. U. S., 7 How. 681, 12 L. Ed. 870; Presi- 
 dent, etc., of Washington Bank v. Prescott, 
 20 Pick. (Mass.) 339; Watt v. Hoch, 25 Pa. 
 411 ; Forretier v. Guerrineau's Creditors, 1 
 McCord (N. C.) 308 ; Blinn v. Chester, 5 Day 
 (Conn.) 166; Brady's Adm'r v. Hill, 1 Mo. 
 315, 13 Am. Dec. 503; Arnold v. Johnson, 
 1 Scam. (111.) 196; Whitaker v. Groover, 54 
 Ga. 174; Jones v. Williams, 39 Wis. 300; 
 Bell v. Radcliff, 32 Ark. 645; Burbank v. 
 McCluer, 54 N. H. 345; Frazer v. Miller, 7 
 Wash. 521, 35 Pac. 427; Farren v. McDon- 
 nell, 74 Hun 176, 26 N. Y. Supp. 619 ; North- 
 ern Nat. Bank v. Lewis, 78 Wis. 475, 47 N. 
 W. 834 ; Green v. Ford, 79 Ga. 130, 3 S. E. 
 624. In the absence of directions, the cred- 
 itor may apply credits to the least secure 
 items of his claim ; Hildreth v. Davis, 6 
 Kulp (Pa.) 336. But there are some restric- 
 tions upon this right. The debtor must have 
 known and waived his right to appropriate. 
 Hence an agent cannot always apply his 
 principal's payment. He cannot, on receipt 
 of money due his principal, apply the funds 
 to debts due himself as agent, selecting those 
 barred by the statute of limitations; 1 
 Mann. & G. 54 ; Colby v. Cressy, 5 N. H. 237. 
 A prior legal debt the creditor must prefer 
 to a posterior equitable debt. Where only 
 one of several debts is valid, all the pay- 
 ments must be applied to this, irrespective 
 of its order in the account; Backman v. 
 Wright, 27 Vt. 1S7, 65 Am. Dec. 187. Wheth- 
 er, if the equitable be prior, it must first be 
 paid, see Baker v. Stackpoole, 9 Cow. (N. Y.) 
 420, 18 Am. Dec. 508 ; 1 C. & M. 33. 
 
 If the creditor is also trustee for another 
 creditor of his own debtor, he must apply 
 the unappropriated funds pro rata to his 
 own claims and those of his cestui que 
 trust; Scott v. Ray, 18 Pick. (Mass.) 361. 
 But if the debtor, besides the debts in his 
 own right, owe also debts as executor or 
 administrator, the unappropriated funds 
 should first be applied to his pers6nal debt, 
 and not to his debts as executor ; Fowke v. 
 Bowie, 4 Harr. & J. (Md.) 566; Sawyer r. 
 Toppan, 14 N. H. 352; 2 Dowl. Pari. Cas. 
 477. A creditor cannot apply unappropriat- 
 ed funds to such of his claims as are illegal 
 and not recoverable at law ; 3 B. & C. 165 ; 
 4 M. & G. 860 ; 4 Dowl. & R. 7S3 ; 2 Deac. 
 & C. 534 ; Rohan v. Hanson, 11 Cush. (Mass.) 
 44; Caldwell v. Wentworth, 14 N. H. 431. 
 But in the case of some debts illegal by 
 statute — namely, those contracted by sales 
 of spirituous liquors — an appropriation to 
 them has been adjudged good ; 2 Ad. & E. 
 41; Treadwell v. Moore, 34 Me. 112. And 
 the debtor may always elect to have his 
 payment applied to an illegal debt. 
 
 If some of the debts are barred by the
 
 APPROPRIATION OF PAYMENTS 221 APPROPRIATION OF PAYMENTS 
 
 statute of limitations the creditor cannot ; 
 first apply the unappropriated funds to i 
 them, and thus revive them ; 2 Cr. M. & R. j 
 723; 2 C. B. 476; Washington v. State, 13 i 
 Ark. 754; Pond v. Williams, 1 Gray (Mass.) 
 630. Still, a debtor may waive the bar of 
 the statute, just as he may apply his funds 
 to an illegal debt; and the creditor may in- 
 sist, in the silence of the debtor, unless other 
 facts controvert it, that the money was paid 
 on the barred debts ; 5 M. & W. 300 ; Liver- 
 more v. Rand, 26 N. H. 85 ; Watt v. Hoch, 
 25 Pa. 411. See Beck v. Haas, 31 Mo. App. 
 180. Proof of such intent on the debtor's 
 part may be deduced from a mutual ad- 
 justment of accounts before the money is 
 sent, or from his paying interest on the 
 barred debt. But, in general, the creditor 
 cannot insist that a part-payment revives 
 the rest of the debt. He can only retain 
 such partial payment as has been made; 
 Pond v. Williams, 1 Gray (Mass.) 630. It 
 has been held that the creditor may first 
 apply a general payment to discharging any 
 one of several accounts all barred, and by so 
 doing he will revive the balance of that par- 
 ticular account, but he is not allowed to 
 distribute the funds upon all the barred 
 notes, so as to revive all ; Ayer v. Hawkins, 
 19 Vt. 26. 
 
 Wherever the payment is not voluntary, 
 the creditor has not the option in appropria- 
 tion, but he must apply the funds received 
 ratably to all the notes or accounts. This 
 is the rule wherever proceeds are obtained 
 by judicial proceedings. So, in cases of as- 
 signment by an insolvent debtor, the share 
 received by a creditor, a party to the assign 
 ment, must be applied pro rata to all his 
 claims, and not to such debts only as are 
 not otherwise secured ; Blackstone Bank v. 
 Hill, 10 Pick. (Mass.) 129; 1 M. & G. 54 ; 
 Stamps v. Brown, Walk. (Miss.) 526; Mer- 
 rimack County Bank v. Brown, 12 N. H. 
 320; Bank of Portland v. Brown, 22 Me. 
 295 ; Cowperthwaite v. Sheffield, 1 Saudf . 
 (N. Y.) 416. 
 
 A creditor having several demands may 
 apply the payments to a debt not secured 
 by sureties, where other rules do not pro- 
 hibit it; Upham v. Lefavour, 11 Mete. 
 (Mass.) 185. Where appropriations are made 
 by a receipt, prima facie the creditor has 
 made them, because the language of the re- 
 ceipt is his ; U. S. v. Bradbury, Dav. Dist. 
 Ct 146, Fed. Cas. No. 14,635. 
 
 It is sufficiently evident from the fore- 
 going rules that the principle of the civil 
 law which required the creditor to act for 
 Ms debtor's interest in appropriation more 
 than for his own, is not a part of the com- 
 mon law ; Logan v. Mason, 6 W. & S. (Pa.) 9. 
 The nearest approach to the civil-law rule 
 is the doctrine that when the right of ap- 
 propriation falls to the creditor he must 
 make such an application as his debtor could 
 
 not reasonably have objected to; Bancroft 
 v. Dumas, 21 Vt. 456; Parchman v. Mc- 
 Kinney, 12 Smedes & M. (Miss.) 631. See 
 Imputation of Payments. 
 
 The law will ai>[>l\l part-payments in ac- 
 cordance with the justice and equity of 
 the case; U. S. v. Kirkpatrick, 9 Wheat. 
 (U. S.) 720,6 L. Ed. 199; Harker v. Conrad, 
 12 S. & R. (Pa.) 301, 14 Am. Dec. 691 ; I 
 v. Holland, 6 Cra. (U. S.) 28, 3 L. Ed. 136; 
 Sheehy v. Mandeville, 6 Cra. (V. S.) 253, 264, 
 3 L. Ed. 215; U. S. v. Wardwell, 5 Mas. 
 82, Fed. Cas. No. 16,040; Campbell v. Ved- 
 der, 1 Abb. App. Dec. (N. Y.i 295; Picker- 
 ing v. Day, 2 Del. Ch. 333; Leef v. Good- 
 win, Taney 460, Fed. Cas. No. S.207. 
 
 Unappropriated funds are always applied 
 to a debt due at the time of payment, rather 
 than to one not then due; 2 Esp. 666; Bak- 
 er v. Stackpoole, 9 Cow. (N. Y.) 420, 18 Am. 
 Dec. 50S ; Harrison & Robinson v. Johns- 
 ton, 27 Ala. 445; Seymour v. Sexton. 10 
 Watts (Pa.) 255; Stone v. Talbot, 4 Wise. 
 442; Kline v. Ragland, 47 Ark. 111. 14 S. 
 W. 474. But an express agreement with the 
 debtor will make good an appropriation to 
 debts not due; Shaw v. Pratt. 22 Pick. 
 (Mass.) 305. The creditor should refuse a 
 payment on an account not yet due, if be be 
 unwilling to receive it ; but if he do receive 
 it he must apply it as the debtor directs; 
 Wetherell v. Joy, 40 Me. 325 ; Levystein & 
 Simon v. Whitman, 59 Ala. 345. A payment 
 is applied to a certain rather than to a con- 
 tingent debt, and, therefore, to a debt on 
 which the payer is bound directly, rather 
 than to one which binds him collaterally; 
 President, etc., of Bank of Portland v. 
 Brown, 22 Me. 295. And where the amount 
 paid is precisely equal to one of several 
 debts, a jury is authorized to infer its in- 
 tended application to that debt; Seymour & 
 Bouck v. Van Slyck, 8 Wend. (N. Y.) 403; 
 Moody v. U. S., 1 Woodb. & M. 150, Fed. Cas. 
 No. 1,636. Where one holds two notes, one 
 of which is secured, and he receives further 
 security with express agreement that he 
 may apply proceeds thereof to either note, 
 he may make such application to the unse- 
 cured note notwithstanding the objection of 
 second mortgagee; Case v. Fant, 53 Fed. 41, 
 3 C. C. A. 418. Where a creditor is secured 
 by both chattel and real estate mortgages, 
 he may apply proceeds of sale of chattels 
 first to the chattel mortgage and then to pay- 
 ment of debts otherwise secured; Schloss v. 
 Solomon, 97 Mich. 526, 56 N. W. 753. 
 
 The law, as a general rule, will apply a 
 payment in the way most beneficial to the 
 debtor at the time of payment; Neal v. Al- 
 lison, 50 Miss. 175 ; Moore v. Kiff. 78 Pa. 96. 
 This rule seems to be similar to the civil- 
 law doctrine. Thus, e. g., courts will apply 
 money to a mortgage debt rather than to a 
 simple contract debt ; see 12 Mod. 559 ; Dor- 
 sey v. Gassaway, 2 Harr. & J. (Md.) 402, 3
 
 APPROPRIATION OF PAYMENTS 222 APPROPRIATION OF PAYMENTS 
 
 Am. Dec. 557 ; Bussey v. Gant's Adm'r, 10 
 Hurnphr. (Tenn.) 23S ; Robinson v. Doolittle, 
 12 Vt. 246 ; Pattison v. Hull, 9 Cow. (N. Y.) 
 747, 765; McTavish v. Carroll, 1 Md. Ch. 
 Dec. 160; Hamer v. Kirkwood, 25 Miss. 95. 
 In the absence of specific appropriation, the 
 law will apply payments to unsecured in- 
 debtedness in preference to the secured ; 
 Gardner v. Leek, 52 Minn. 522, 54 N. W. 746. 
 Yet. on the other hand, in the pursuit of 
 equity, courts will sometimes assist the cred- 
 itor. Hence, of two sets of debts, courts al- 
 low the creditor to apply unappropriated 
 funds to the debts least strongly secured; 
 Planters' Bank v. Stockman, 1 Freem. Ch. 
 (Miss.) 502; Baine v. Williams, 10 Smedes 
 
 6 M. (Miss.) 113; Stamford Bank v. Bene- 
 dict, 15 Conn. 138 ; Ramsour v. Thomas, 32 
 N. C. 165 ; Jones v. Kilgore, 2 Rich. Eq. (S. 
 C.) 63 ; Emery v. Tichout, 13 Vt 15 ; Field 
 v. Holland, 6 Cr. (U. S.) 8, 3 L. Ed. 136; 
 Smith v. Loyd, 11 Leigh (Va.) 512, 37 Am. 
 Dec. 621 ; Byer v. Fowler, 14 Ark. 86 ; Har- 
 groves v. Cooke, 15 Ga. 321 ; Pattison v. 
 Hull, 9 Cow. (N. Y.) 747, 765; The D. B. 
 Steelman, 48 Fed. 580. 
 
 Interest. Payments made on account are 
 first to be applied to the interest which has 
 accrued thereon. And if the payment ex- 
 ceed the amount of interest, the residue 
 goes to extinguish the principal ; Peebles v. 
 Gee, 12 N. C. 341 ; Jencks v. Alexander, 11 
 Paige, Ch. (N. Y.) 619; Bond v. Jones, 8 
 Smedes & M. (Miss.) 368; Hearn v. Cut- 
 berth, 10 Tex. 216; Righter v. Stall, 3 Sandf. 
 Ch. (N. Y.) 60S; Miami Exporting Co. v. 
 Bank, 5 Ohio 260 ; Hart v. Dorman, 2 Fla. 
 445, 50 Am. Dec. 285; Spires v. Hamot, 8 
 W. & S. (Pa.) 17 ; Mills v. Saunders, 4 Neb. 
 190; Jacobs v. Ballenger, 130 Ind. 231, 29 
 N. E. 782, 15 L. R. A. 169. Funds must be 
 applied by the creditor to a judgment bear- 
 ing interest, and not to an unliquidated 
 account ; Scott v. Fisher, 4 T. B. Monr. 
 (Ky.) 3S9 ; nor to usurious interest ; Dun- 
 can v. Helm, 22 La. Ann. 418; Bank of Ca- 
 diz v. Slemmons, 34 Ohio St. 142, 32 Am. 
 Rep. 364. 
 
 Priority. When no other rules of ap- 
 propriation intervene, the law applies part- 
 payments to debts in the order of time, dis- 
 charging the oldest first ; Whetmore v. Mur- 
 dock, 3 Woodb. & M. 390, Fed. Cas. No. 17,- 
 510; Huger's Ex'rs v. Bocquet, 1 Bay (S. C.) 
 497 ; Thurlow v. Gilmore, 40 Me. 378 ; Dows 
 v. Morewood, 10 Barb. (N. Y.) 183; Allstan's 
 Adm'r v. Contee's Ex'r, 4 Harr. & J. (Md.) 
 351 ; Ross's Ex'r v. McLauchlan's Adm'r, 
 
 7 Gratt. (Va.) 86; Shedd v. Wilson, 27 Vt. 
 478; Berghaus v. Alter, 9 Watts (Pa.) 386; 
 Harrison v. Johnston, 27 Ala. 445; Town of 
 St. Albans v. Failey, 46 Vt 448; Allen v. 
 Brown, 39 la. 330; Worthley v. Emerson, 
 116 Mass. 374 ; The Barges 2 and 4, 58 Fed. 
 425. Where the payment is upon an ac- 
 count, the law will apply it to the oldest 
 
 items; The Tom Lysle, 48 Fed. 690. So 
 strong is this priority rule that it has been 
 said that equity will apply payments to the 
 earliest items, even where the creditor has 
 security for these items and none for later 
 ones; Truscott v. King, 6 N. Y. 147. But 
 this is opposed to the prevailing rule. 
 
 Sureties. The general rule is that neither 
 debtor nor creditor can so apply a payment 
 as to affect the liabilities of sureties, with- 
 out their consent; Merrimack County Bank 
 v. Brown, 12 N. H. 320; Myers v. U. S., 1 
 McLean 493, Fed. Cas. No. 9,996; Brander 
 v. Phillips, 16 Pet. (U. S.) 121, 10 L. Ed. 909 ; 
 Postmaster General v. Norvell, Gilp. 106, 
 Fed. Cas. No. 11,310. Where a principal 
 makes general payments, the law presumes 
 them, prima facie, to be made upon debts 
 guaranteed by a surety, rather than upon 
 others ; though circumstances and intent 
 will control this rule of surety, as they do 
 other rules of appropriation ; 1 C. & P. 600 ; 
 8 Ad. & E. 855 ; 10 J. B. Moore 362; Mitch- 
 ell v. Dall, 4 Gill & J. (Md.) 361; Donally 
 v. Wilson, 5 Leigh (Va.) 329. 
 
 Continuous accounts. In these, payments 
 are applied to the earliest items of account, 
 unless a different intent can be inferred; 4 
 B. & Ad. 766; 4 Q. B. 792; TJ. S. v. Kirk- 
 pa trick, 9 Wheat. (U. S.) 720, 6 L. Ed. 199; 
 Gass v. Stinson, 3 Sumn. 98, Fed. Cas. No. 
 5,262; Miller v. Miller, 23 Me. 24, 39 Am. 
 Dec. 597; Morgan v. Tarbell, 28 Vt 498; 
 Dulles v. De Forest, 19 Conn. 191 ; Harri- 
 son v. Johnston, 27 Ala. 445 ; Home v. Bank, 
 32 Ga. 1 ; Shuford v. Chinski (Tex.) 26 S. W. 
 141 ; Winnebago Paper Mills v. Travis, 56 
 Minn. 480, 58 N. W. 36. Where one is in- 
 debted on two different accounts and money 
 is paid without directions, the creditor may 
 apply it to the later account ; Henry Bill 
 Pub. Co. v. Utley, 155 Mass. 366, 29 N. E. 
 635; Perot v. Cooper, 17 Colo. 80 N 28 Pac. 
 391, 31 Am. St. Rep. 258; or he may apply 
 half the amount paid on each of two debts, 
 where neither is barred by the statute of 
 limitations; Beck v. Haas, 111 Mo. 264, 20 
 S. W. 19, 33 Am. St. Rep. 516. 
 
 Partners. Where a creditor of the old 
 firm continues his account with the new 
 firm, payments by the latter will be ap- 
 plied to the old debt, prima facie, the pre- 
 ceding rule of continuous accounts guiding 
 the appropriations. As above, however, a 
 different intent, clearly proved, will pre- 
 vail ; 5 B. & Ad. 925 ; 2 B. & Aid. 39 ; Lo- 
 gan v. Mason, 6 W. & S. (Pa.) 9. When a 
 creditor of the firm is also the creditor of 
 one partner, a payment by the latter of 
 partnership funds must be applied to the 
 partnership debts. Yet circumstances may 
 allow a different application ; 1 Mood. & 
 M. 40; Fairchild v. Holly, 10 Conn. 175; 
 McKee v. Stroup, 1 Rice (S. C.) 291; Sneed 
 v. Wiester, 2 A. K. Marsh. (Ky.) 277; Cod- 
 man v. Armstrong, 28 Me. 91; Johnson v.
 
 APPROPRIATION OF PAYMENTS 223 APPROPRIATION OF PAYMENTS 
 
 Boone's Adm'r, 2 Harr. (Del.) 172. See Too- 
 tle v. Jenkins, 82 Tex. 29, 17 S. W. 519. 
 And so, unappropriated payments made by a 
 party indebted severally and also jointly 
 with another to the same creditor, for items 
 of book-charges, are to be applied upon the 
 several debts; Livermore v. Claridge, 33 Me. 
 428. 
 
 The rules of appropriation, it has now 
 been seen, apply equally well whether the 
 debts are of the same or of different orders, 
 and though some are specialties while oth- 
 ers are simple contracts; Town of Alex- 
 andria v. Patten, 4 Cra. (U. S.) 317, 2 L. Ed. 
 633 ; Bennett v. Woolfolk, 15 Ga. 221 ; Pen- 
 nypacker v. Umberger, 22 Pa. 492 ; Hamil- 
 ton v. Benbury, 3 N. C. 3S5. 
 
 As to the time during which the applica- 
 tion must be made in order to be valid, there 
 is much discrepancy among the authorities, 
 but perhaps a correct rule is that any time 
 will be good as between debtor and creditor, 
 but a reasonable time only when third par- 
 ties are affected ; 6 Taunt. 597 ; Combs v. 
 Little, 4 N. J. Eq. 314, 40 Am. Dec. 207; 
 Starrett v. Barber, 20 Me. 457; Heilbron v. 
 Bissell, Bail. Eq. (S. C.) 430; Reynolds v. 
 McFarlane, 1 Overt. (Tenn.) 488; Moss v. 
 Adams, 39 N. C. 42; Robinson v. Do'olittle, 
 12 Vt 249 ; Fairchild v. Holly, 10 Conn. 184. 
 
 When once made, the appropriation can- 
 not be changed but by consent ; and render- 
 ing an account, or bringing suit and declar- 
 ing in a particular way. is evidence of an 
 appropriation ; Hill v. Southerland's Ex'rs, 
 1 Wash. (Va.) 128; Hopkins v. Conrad, 2 
 Rawle (Pa.) 316; Bank of North America 
 v. Meredith, 2 Wash. C. C. 47, Fed. Cas. No. 
 893; Jackson v. Bailey, 12 111. 159 ; Codman 
 v. Armstrong, 28 Me. 91 ; Pearce v. Walker, 
 103 Ala. 250, 15 South. 568. If the debtor 
 receives without objection an account ren- 
 dered, he cannot afterward question the im- 
 putation ; Flower v. O'Bannon, 43 La. Ann. 
 1042, 10 South. 376 ; Sawyer v. Harrison, 43 
 Minn. 298, 45 N. W. 434. 
 
 Of Government. No money can be drawn 
 from the treasury of the United States but 
 in consequence of appropriations made by 
 law ; Const, art. 1, s. 9. Under this clause 
 it is necessary for congress to appropriate 
 money for the support of the federal gov- 
 ernment ; this is done annually by acts of 
 appropriation, some of which are for the 
 general purposes of government, and others 
 special and private in their nature. These 
 general appropriation bills, as they are com- 
 monly termed, extend to the 30th of June in 
 the following year, and usually originate in 
 the house of representatives, being prepared 
 by the committee of ways and means ; but 
 they are distinct from the bills for raising 
 revenue, which the constitution declares 
 shall originate in the house of representa- 
 tives. A rule of the house gives appropria- 
 tion bills precedence over all other business, 
 and requires them to be first discussed in 
 
 committee of the whole. Where money once 
 appropriated remains unexpended for more 
 than two years after the expiration of the 
 fiscal year in which the act shall have been 
 passed, such appropriations are deemed to 
 have ceased, and the moneys so unexpend- 
 ed are immediately thereafter carried to the 
 "surplus fund," and it is not lawful there- 
 after to pay them out for any purpose with- 
 out further and specific appropriations by 
 law. Certain appropriations, however, are 
 excepted from the operation of this law, 
 viz.: moneys appropriated Cor payment of 
 the interest on the funded debt, or the pay- 
 ment of interest and reimbursement accord- 
 ing to contract of any loan or loans made 
 on account of the United States; as like- 
 wise moneys appropriated for a pui 
 in respect to which a longer duration is 
 specially assigned by law. No expenditure 
 is allowed in any department in any year in 
 excess of the appropriation for that year; 
 R. S. §§ 3660-3002. 7 O. A. G. 1. 
 
 The term "approprinti<>ii" was also used in 
 13 Stat at L. 381, to include all takin 
 use of property by the army and navy in the 
 course of the war not authorized by contract 
 with the government; Filor v. U. S., 9 Wall. 
 (U. S.) 45, 19 L. Ed. 549; U. S. v. Russell 
 13 Wall. (U. S.) 623. 20 L. Ed. 474; Waters 
 v. U. S., 4 Ct. CI. 389. 
 
 It is also used in reference to taking prop- 
 erty under eminent domain (q. v.) and par- 
 ticularly to taking water in connection with 
 irrigation (q. v.). 
 
 APPROVE. To increase the profits upon 
 a thing. 
 
 Used of common or waste lands which were en- 
 closed and devoted to husbandry; 3 Kent 406 ; Old 
 Nat. Brev. 79. 
 
 While confessing crime one's self, to ac- 
 cuse another of the same crime. 
 
 It Is so called because the accuser must prove 
 what he asserts; Staundf. PI. Cr. 142; Crompton, 
 Jus. Peace 250. 
 
 To vouch. To appropriate. To improve. 
 Kelham. 
 To commend; be satisfied with. 
 
 APPROVED ENDORSED NOTES. Notes 
 endorsed by another person than the maker, 
 for additional security, the endorser being 
 satisfactory to the payee. 
 
 Public sales are sometimes made on approved 
 endorsed notes. The meaning of the term is that 
 the purchaser shall give bis promissory note for 
 the amount of his purchases, endorsed by another, 
 which, if approved of by the seller, shall be receiv- 
 ed in payment. If the party approve of the notes, 
 he consents to ratify the sale; Mills v. Hunt, 20 
 Wend. (N. Y.) 431. 
 
 APPROVER. One confessing himself 
 guilty of felony, and accusing others of the 
 same crime to save himself. Crompton, lust. 
 250; Co. 3d Inst. 129; Myers v. People, 26 
 111. 173 ; Gray v. People, 26 id. 344 ; 1 Cowp- 
 er 331. See ANTrrnETABius. 
 
 Such an one was obliged to maintain the truth 
 of his charge, by the old law; Cowell. If he failed
 
 APPROVER 
 
 224 
 
 APPURTENANCES 
 
 to convict those he accused he was at once hung. 
 Lea, Force & Superstition 243. It is said that they 
 usually failed. 1 Pike, Hist, of Cr. 286. The ap- 
 provement must have taken place before plea plead- 
 ed; 4 Bla. Com. 330. 
 
 Certain men sent into the several counties 
 to increase the farms (rents) of hundreds 
 and ivapentakes, which formerly were let at 
 a certain value to the sheriffs. Cowell. 
 
 Sheriffs are called the king's approvers. 
 Termes de la Ley. 
 
 Approvers in the Marches were those who 
 had license to sell and purchase beasts there. 
 
 APPURTENANCES. Things belonging to 
 another thing as principal, and which pass 
 as incident to the principal thing. Harris 
 v. Elliott, 10 Pet. (U. S.) 25, 9 L. Ed. 333; 
 Blaine's Lessee v. Chambers, 1 S. & R. (Pa.) 
 1G9; Cro. Jac. 121, 526; 1 P. Wms. 603; 2 
 Coke 32 ; Co. Litt. 5 6, 56 a, b; 2 Saund. 401, n. 
 2 ; 1 B. & P. 371 ; Grubb v. Grubb, 74 Pa. 25. 
 See 13 Am. Dec. 657, note. 
 
 The word has a technical signification, 
 and, when strictly considered, is. employed 
 in leases for the purpose of including any 
 easements or servitudes used or enjoyed 
 with the demised premises. When thus used, 
 to constitute an appurtenance there must 
 exist a propriety of relation between the 
 principal or dominant subject and the ac- 
 cessory or adjunct, which is to be ascertain- 
 ed by considering whether they so agree 
 in nature or quality as to be capable of un- 
 ion without incongruity ; Riddle v. Little- 
 field, 53 N. H. 508, 16 Am. Rep. 388; Hum- 
 phreys v. McKissock, 140 U. S. 304, 11 Sup. 
 Ct. 779, 35 L. Ed. 473. 
 
 Thus, if a house and land be conveyed, 
 everything passes which is necessary to the 
 full enjoyment thereof and which is in use 
 as incident or appurtenant thereto ; U. S. v. 
 Appleton, 1 Sumn. 492, Fed. Cas. No. 14,403. 
 Under this term are included the curtilage ; 
 2 Bla. Com. 17 ; a right of way ; 4 Ad. & E. 
 749; water-courses and secondary easements, 
 under some circumstances ; Angell, Wat. C. 
 (7th ed.) § 153a; a turbary; 3 Salk. 40; 
 and generally, anything necessary to the en- 
 joyment of a thing ; 4 Kent 468, n. ; Simmons 
 v. Cloonan, 81 N. Y. 557; but it is the 
 general rule that land cannot pass as appur- 
 tenant to land; Harris v. Elliott, 10 Pet. (U. 
 S.) 25, 9 L. Ed. 333; Helme v. Guy, 6 N. C. 
 341; Woodhull v. Rosenthal, 61 N. Y. 390; 
 but it may pass, in order to give effect to 
 tbe intent of a will; Otis v. Smith, 9 Pick. 
 (Mass.) 293; and in Pennsylvania where 
 first purchasers of 5000 acres from William 
 Penn, the Proprietary, obtained city lots as 
 an incident to their purchase, it was held 
 that the lots passed as appurtenant to a 
 grant of 5000 acres; Hill's Lessee v. West, 
 4 Yeates (Pa.) 142; also flats pass as ap- 
 purtenant to the fast land on a river front; 
 Risdon v. City of Philadelphia, 18 W. N. C. 
 (Pa.) 73; and the land covered by the wa- 
 ter used for water power will pass as ap- 
 
 purtenant to a saw-mill ; Grubb v. Grubb, 74 
 Pa. 25. See also Scheetz v. Fitzwater, 5 Pa. 
 126; Ott v. Kreiter, 110 Pa. 370, 1 Atl. 724. 
 
 The mere use of the term "appurtenances," 
 without more, will not pass a right of way 
 established over one portion of land merely 
 for convenience of the owner, it not being a 
 way of necessity ; Parsons v. Johnson, 68 N. 
 Y. 62, 23 Am. Rep. 149. 
 
 An elevator is not a common appurtenance 
 to the railroads of the several companies 
 having the stock of the elevator company ; 
 a certificate of stock in an independent cor- 
 poration cannot be an- appurtenance to a 
 railroad ; Humphreys v. McKissock, 140 U. 
 S. 304, 11 Sup. Ct. 779, 35 L. Ed. 473, where, 
 under a mortgage made by a railroad com- 
 pany, the term "appurtenances" was held to 
 mean only such property as is indispensable 
 to the use and enjoyment of the franchises 
 of the company. 
 
 If a house is blown down, a new one 
 erected there shall have the old appurte- 
 nances; 4 Coke 86. The word appurtenanc- 
 es in a deed will not usually pass any cor- 
 poreal real property, but only incorporeal 
 easements, or rights and- privileges ; Co. Litt. 
 121 ; 8 B. & C. 150 ; 2 Washb. R. P. 317, 327 ; 
 3 id. 418. See Appendant. 
 
 Appurtenances of a ship include whatever 
 is on board a ship for the objects of the voy- 
 age and adventure in which she is engaged, 
 belonging to her owner. Ballast was held 
 no appurtenance; 1 Leon. 46. Boats and ca- 
 ble are such; Briggs v. Strange, 17 Mass. 
 405 ; also, a rudder and cordage ; 5 B. & Aid. 
 942; 1 Dods. Adm. 278; fishing-stores; 1 
 Hagg. Adm. 109 ; chronometers ; 6 Jur. 910 ; 
 see Richardson v. Clark, 15 Me. 421. For a 
 full discussion, see 1 Pars. Marit. Law 71. 
 See In re Bailey, 2 Sawy. 201, Fed. Cas. No. 
 728. 
 
 APPURTENANT. Belonging to; pertain- 
 ing to. 
 
 The thing appurtenant must be of an in- 
 ferior nature to the thing to which it is ap- 
 purtenant; 2 Bla. Com. 19; U. S. v. Harris, 
 1 Sumn. 21, Fed. Cas. No. 15,315; Williams 
 v. Baker, 41 Md. 523. A right of common 
 may be appurtenant, as when it is annexed 
 to lands in other lordships, or is of beasts 
 not generally commonable ; 2 Bla. Com. 33. 
 Such can be claimed only by immemorial 
 usage and prescription. See Appurtenances. 
 
 APUD ACTA (Lat). Among the record- 
 ed acts. This was one of the verbal appeals 
 (so called by the French commentators), and 
 was obtained by simply saying, appello. 
 
 AQUA (Lat). Water. It is a rule that 
 water belongs to the land which it covers 
 when it is stationary. Aqua ccdit solo (wa- 
 ter follows the soil) ; 2 Bla. Com. 18. But 
 the owner of running water cannot obstruct 
 the flow to the injury of an inheritance be- 
 low him. Aqua currit et currere debet (wa- 
 ter runs, and ought to run); 3 Kent 439;
 
 AQUA 
 
 225 
 
 ARBITRAMENT AND AWARD 
 
 Kauffman v. Griesemer, 26 Pa. 413, 67 Am. 
 Dec. 437 ; 2 Washb. R. P. 340. See Riparian 
 Proprietors. 
 
 AQU/E DUCTUS. In Civil Law. A servi- 
 tude which consists in the right to carry 
 water by means of conduits over or through 
 the estate of another. Dig. 8. 3. 1 ; Inst 2. 
 3; Lalaure, Des Serv. c. 5, p. 23. 
 
 AQU/E HAUSTUS. In Civil Law. A serv- 
 itude which consists in the right to draw 
 water from the fountain, pool, or spring of 
 another. Inst 2. 3. 2; Dig. 8. 3. 1. 1. 
 
 AQU/E IMMITTEND/E. In Civil Law. A 
 
 servitude which frequently occurs among 
 neighbors. 
 
 It was the right which the owner of a 
 house, built in such a manner as to be sur- 
 rounded with other buildings, so that it has 
 no outlet for its waters, had to cast water 
 out of his windows on his neighbor's roof, 
 court, or soil. Lalaure, Des Serv. 23. It is 
 recognized in the common law as an ease- 
 ment of drip; Wadsworth v. Hydnuilic 
 Ass'n, 15 Barb. (N. Y.) 95; Gale & Whatley, 
 Easements. See Easements ; Drip. 
 
 A Q U A G I U M (Lat). A water-course. 
 Cowell. Canals or ditches through marshes. 
 Spelman. A signal placed in the aquagium 
 to indicate the height of water therein. 
 Spelman. 
 
 AQUATIC RIGHTS. Rights which indi- 
 viduals have in water. 
 
 ARALIA. Land fit for the plough. De- 
 noting the character of land, rather than its 
 condition. Spelman. Kindred in meaning 
 arare, to plough; arator, a ploughman; ara- 
 trum tcrrce, as much land as could be culti- 
 vated by a single arator; araturia, land fit 
 for cultivation. 
 
 ARBITER. A person bound to decide ac- 
 cording to the rules of law and equity, as 
 distinguished from an arbitrator, who may 
 proceed wholly at his own discretion, so that 
 it be according to the judgment of a sound 
 man. Cowell. 
 
 This distinction between arbiters and arbitrators 
 is not observed in modern law. Russell, Arbitrator 
 112. See Arbitrator. 
 
 One appointed by the Roman pra?tor to de- 
 cide by the equity of the case, as distinguish- 
 ed from the judex, who followed the law. 
 Calvinus, Lex. 
 
 One chosen by the parties to decide the 
 dispute; an arbitrator. Bell, Diet. 
 
 ARBITRAGE. Transactions of bankers 
 and mercantile bouses by which stocks or 
 bills are bought in one market and sold in 
 another for the sake of the profit arising 
 from a difference in price in the two mar- 
 kets. 
 
 ARBITRAMENT AND AWARD. A plea 
 to an action brought for the same cause 
 which had been submitted to arbitration and 
 Bouv.— 15 
 
 on which an award had been made. Wat- 
 son, Arb. 256. 
 
 ARBITRARY PUNISHMENT. That pun- 
 ishment which is left to the decision of the 
 judge, in distinction from those defined by 
 statute. See Discretion. 
 
 ARBITRATION AND AWARD. Arbitra- 
 tion is the investigation and determination 
 of a matter or matters of difference between 
 contending parties, by one or more unofficial 
 persons, chosen by the parties, and called 
 arbitrators, or referees. 
 
 1. Character of the Proceeding. Arbitra- 
 tion is the hearing and determination of a 
 cause between the parties in controversy by 
 a tribunal selected by them. Duren v. Get- 
 ehell, 55 Me. 241. At common law it is en- 
 tirely voluntary, and depends upon the agree- 
 ment of the parties, to waive the right of tri- 
 al in court by a jury. 
 
 "An arbitration is a domestic tribunal 
 created by the will and consent of the par- 
 ties litigant, and resorted to to avoid ex- 
 pense, delay and ill feeling consequent upon 
 litigating in courts of justice." Reily v. Rus- 
 sell, 34 Mo. 52 1. 
 
 "Arbitration is where the parties injuring 
 and injured submit all matters in dispute 
 concerning any personal chattels or personal 
 wrong to the judgment of two or more arbi- 
 trators, who are to decide the controversy ; 
 and if they do not agree it is usual to add 
 that another person be called in as umpire 
 (imperator or impar) to whose sole judg- 
 ment it is then referred; or frequently there 
 is only one arbitrator originally appointed. 
 The decision in any of these cases is called 
 an award, and thereby the question is as 
 fully determined and the right transferred 
 or settled as it could have been by the agree- 
 ment of the parties or a judgment of a court 
 of justice." 3 Bla. Com. 16, adopted in Fargo 
 v. Reighard, 13 Ind. App. 39, 39 N. E. SS8, 41 
 N. E. 74; Germania Fire Ins. Co. of City of 
 New York v. Warner, 13 Ind. App. 4<; ;. 41 
 N. E. 969. 
 
 "Arbitration is a substitution by consent 
 of the parties of another tribunal for those 
 provided by the ordinary processes of law; 
 but that such a substitution should be estab- 
 lished, the consent of the parties thereto 
 should be proved in the usual way." Boyden 
 v. Lamb. 152 Mass. 416, 25 N. B. 609. 
 
 "An arbitration at common law was but a 
 judicial investigation out of court," and as 
 such it required notice of hearing and ex- 
 amination of the witnesses under oath, un- 
 less expressly waived. People v. Board of 
 Sup'rs, 15 N. Y. Supp. T4S. 
 
 "Arbitration is an arrangement for taking 
 and abiding by the judgment of selected per- 
 sons in some disputed matter, instead of 
 carrying it to the established tribunals of 
 justice, and is intended to avoid the formali- 
 ties, the delay, the expense and vexation of 
 ordinary litigation. When the submission is
 
 ARBITRATION AND AWARD 
 
 226 
 
 ARBITRATION AND AWARD 
 
 made a rule of court, the arbitrators are not 
 officers of the court, but are the appointees of 
 
 the parties, as in cases where there is no 
 rule of court." In re Curtis-Castle Arbitra- 
 tion, 64 Conn. 501, 30 Atl. 709, 42 Am. St 
 Rep. 200. 
 
 To constitute an arbitration, the matter 
 submitted must be one in dispute between 
 the parties and not some matter which it 
 is expected may arise between them or a 
 matter of accounting or appraisal. Toledo S. 
 S. Co. v. Zenith Transp. Co., 184 Fed. 391, 
 10G C. C. A. 501. 
 
 Compulsory arbitration is when the con- 
 sent of one of the parties is enforced by 
 statutory provisions. Wood v. City of Seat- 
 tle, 23 Wash. 1, 02 Pac. 135, 52 L. R. A. 369. 
 
 Voluntary art) it rut ion is by mutual and 
 free consent of the parties. It usually takes 
 place in pursuance of an agreement (com- 
 monly in writing) between the parties, term- 
 ed a submission ; the person to whom the 
 reference is made is an arbitrator; and the 
 determination of the arbitrators is called an 
 award: Garr v. Gomez, 9 Wend. (N. Y.) 049; 
 but a parol submission is good at common 
 law; Cady v. Walker, 02 Mich. 157, 28 N. W. 
 805, 4 Am. St. Rep. 834. 
 
 A submission to arbitration made pending 
 an action thereon, operates as a discontinu- 
 ance of the suit; Draghicevich v. Vulicevich, 
 70 Cal. 378, 18 Pac. 406; and it is a bar to 
 any future action thereon ; Baltes v. Ma- 
 chine Works, 129 Ind. 185, 28 N. E. 319. If 
 the submission is not made under an order 
 of court, the award cannot be made a judg- 
 ment of the court unless it be by consent ; 
 Long v. Fitzgerald, 97 N. C. 39, 1 S. E. 844. 
 
 At common law it was either in pais, — 
 that is, by simple agreement of the parties, 
 — or by the intervention of a court of law 
 or equity. The latter was called arbitration 
 by rule of court; 3 Bla. Com. 16. 
 
 Besides arbitration at common law, there 
 exists arbitration, in England as well as the 
 United States, under various statutes. 
 
 Most of them are founded on the 9 & 10 
 Will. III. c. 15, and 3 & 4 Will. IV. ch. 42, § 
 49, by which it is allowed to refer a matter 
 in dispute, not then in court, to arbitrators, 
 and agree that the submission be made a 
 rule of court. This agreement, being proved 
 on the oath of one of the witnesses thereto, 
 is enforced as if it had been made at first 
 under a rule of court; 3 Bla. Com. 18; Kyd, 
 Aw. 22. Some of the state statutes, however, 
 provide for compulsory arbitration. 
 
 This is somewhat similar to the arbitra- 
 tions of the Romans. There the prcetor se- 
 lected, from a list of citizens made for the 
 purpose, one or more persons, who were au- 
 thorized to decide all suits submitted to 
 them, and which had been brought before 
 him. The authority which the proetor gave 
 them conferred on them a public character, 
 and their judgments were without appeal. 
 Toullier, Droit Civ. Fr. liv. 3, t. 3, c. 4, n. 820. 
 
 Although at common law arbitrators were 
 unofficial persons selected by the parties, it 
 is in the power of a state legislature to pro- 
 vide for statutory arbitrators to be selected 
 from a class learned in the law, and that, in 
 their proceedings, they shall be governed by 
 certain rules and regulations. Such a com- 
 mission is not an arbitrary one to which 
 litigants are forced to submit their differ- 
 ences, but can only act by the express con- 
 sent of the parties, which gives validity and 
 vitality to the statute, and a judgment en- 
 tered thereon is like other consent judg- 
 ments; Henderson v. Beaton, 52 Tex. 29. 
 
 It is a general rule that in an arbitration 
 as to matters of "public concern" a majority 
 is sufficient to make an award; this rule was 
 laid down by Eyre, C. J., in 1 Bos. & Pul. 229, 
 and applied in Omaha Water Co. v. Omaha, 
 162 Fed. 225, 89 C. C. A. 205, 15 Ann. Cas. 
 498, where the appraisal of a water works, 
 preparatory to their being taken over by a 
 city, was held to be a matter of "public con- 
 cern," and the decision of a majority bind- 
 ing ; in Colombia v. Cauca Co., 190 U. S. 524, 
 23 Sup. Ct. 704, 47 L. Ed. 1159, where there 
 had been an arbitration between the Repub- 
 lic of Colombia and a railroad company, and 
 after the three arbitrators had heard and 
 discussed the case, the Colombia representa- 
 tive withdrew, and there not being time un- 
 der the treaty for proceedings to supply his 
 place, the remaining arbitrators signed the 
 award and it was held binding, among other 
 reasons, because it was of "public concern" ; 
 in People v. Nichols, 52 N. Y. 478, 11 Am. 
 Rep. 734, where a n appropriation having 
 been made (of $20,000, or so much thereof 
 as might be necessary) for the purchase of 
 relics of George Washington to be paid only 
 on a certificate of genuineness and value of 
 three named persons, it was held that a mat- 
 ter between a state and an individual is a 
 matter of "public concern" and that a cer- 
 tificate signed by two was sufficient, the 
 third having refused to sign. The rule was 
 also applied in Morgan v. Ins. Ass'n, 52 App. 
 Div. 61, 64 N. Y. Supp. 873. 
 
 2. Submission. The submission is an 
 agreement, parol (oral or w r ritten) or sealed, 
 by which parties agree to submit their differ- 
 ences to the decision of a referee or arbitra- 
 tors. It is sometimes termed a reference; 
 Kyd, Arb. 11; 3 M. & W. 816; McManus v. 
 McCulloch, 6 Watts (Pa.) 357; Stewart v. 
 Cass, 16 Vt. 663, 42 Am. Dec. 534; Howard 
 v. Sexton, 4 N. Y. 157. 
 
 It is the authority given by the parties to 
 the arbitrators, empowering them to inquire 
 into and determine the matters in dispute. 
 
 It may be in pais, or by rule of court, or 
 under the various statutes; Williams t. 
 Wood, 12 N. C. 82. ■ 
 
 It may be oral, but this is inconvenient, 
 because open to disputes ; by written agree- 
 ment not under seal (in some states the sub- 
 mission must be in writing; De Armas y.
 
 ARBITRATION AND AWARD 
 
 227 
 
 ARBITRATION AND AWARD 
 
 City of New Orleans, 5 La. 133 ; Smith v. 
 Pollock, 2 CaL 912 ) ; by Indenture, with mu- 
 tual covenants to abide by the decision of 
 
 the arbitrator; by deed-poll, or by bond, each 
 party executing an obligation to tbe otber 
 conditioned to be void respectively upon the 
 performance of tbe award; Caldw. Arb. 1G; 
 McManus v. McCulloch, 6 Watts (Pa.) 357. 
 A parol submission followed by a valid 
 award, though not in writing, may be bind- 
 ing and conclusive upon the parties, if tbe 
 arbitrators act fairly, but before a party is 
 so bound, tbe agreement to arbitrate; must be 
 duly established ; Childs v. State, 97 Ala. 52, 
 12 South. 441. 
 
 An offer to arbitrate not accepted by the 
 other party cannot affect bis right to sue; 
 Funsteu v. Commission Co., 67 Mo. App. 559; 
 where a submission was provided for in a 
 lease, and by failure of tbe parties to agree 
 upon arbitrators, nothing had been done and 
 suit was brougbt, the action could be defeat- 
 ed by an offer at tbe trial to proceed with 
 the arbitration; Van Beuren v. Wotherspoon, 
 12 App. Div. 421, 42 N. Y. Supp. 404. A stat- 
 utory provision for arbitration has been held 
 not to be exclusive of the common-law riumt 
 to arbitrate; Burkland v. Johnson, 50 Neb. 
 858, 70 N. W. 388. See also, as to the effect 
 of statutory provisions upon common-law ar- 
 bitration, New York Lumber & Wood Work- 
 ing Co. v. Schneider, 119 N. Y. 475, 24 N. E. 
 4; Ehrman v. Stanfield, 80 Ala. 118. 
 
 When to bo made. A submission may be 
 made at any time of causes not in court, 
 and at common law, where a cause was de- 
 pending, submission might be made by rule 
 of court before the trial, or by order of nisi 
 prius after it had commenced, which was 
 afterwards made a rule of court ; 2 B. & Aid. 
 395; Craig v. Craig, 9 N. J. L. 198. 
 
 Who DKiii make. Any one capable of mak- 
 ing a disposition of his property or release 
 of his right, or capable of suing or being 
 sued, or of making a valid and binding con- 
 tract with regard to the subject, may, in 
 general, be a party to a reference or arbitra- 
 tion ; but one under civil or natural incapac- 
 ity cannot be bound by his submission; 2 P. 
 Wms. 45; Furbish v. Hall, 8 Greenl. (Me.) 
 315; Eastman v. Burleigh, 2 N. H. 484; 
 Schoff v. Bloomfield, 8 Yt. 472; inhabitants 
 of Buckland v. Inhabitants, IT, Mass. 396; 
 Inhabitants of Griswold v. North-Stonington, 
 5 Conn. 307; Brady v. Brooklyn, 1 Barb. (N. 
 T.) 584; Street v. St. Clair, 6 Munf. (Ya.) 
 458; Alexandria Canal Co. v. Swann, 5 How. 
 (U. S.) 83, 12 L. Ed. 60; Lathers v. Fish, 4 
 Lans. (N. Y.) 213. Every one is so far, and 
 only so far, bound by the award as he would 
 be by an agreement of the same kind made 
 directly by him. For example, the submis- 
 sion of a minor is not void, but voidable; 
 Millsaps v. Estes, 137 N. C. 535, 50 S. E. 
 227, 70 L. R. A. 170, 107 Am. St. Rep. 496, 
 where on motion for rehearing (after hold- 
 ing it yoid; id., 134 N. C. 486, 40 S. E. 988) 
 
 the court said that there was a conflict of 
 authority, In which they were -inclined to 
 concur with those courts and the t 
 who maintain tbe proposition that such con- 
 tracts are voidable only" and that there is 
 no reason to take it out of the general rule 
 as to contracts of infants.. See Lm 
 
 In general, in cases of incapacity of the 
 real owner of property, as well as in many 
 of agency, the person who has the 
 legal control of the property may make sub- 
 mission, including a husband for his wife; 
 
 5 Ves. 840 (before the Married Women's 
 Acts) ; a parent or guardian for an infant; 
 Weston v. stuart, 11 Me, 326; Hutchins v. 
 Johnson, 12 Conn. 370, 30 Am. Dec 622; 
 Weed v. Ellis, 3 Caines (N. Y.) 253 (but not 
 a guardian ad litem; Hannum's Heirs v. 
 Wallace, 9 Humphr. (Teun.) 129); a trustee 
 for bis cestui que trust; 3 Esp. 101; an 
 attorney for his client; 1 Ld. Kaym. 246; 
 Scarborough v. Reynolds, 12 Ala. 252; Wil- 
 son v. loung, 9 Pa. 101 ; Diedrick v. Richley, 
 2 Hill (N. Y.) 271; Talbot v. McGee, 4 T. B. 
 Monr. (Ky.) 375; Holker v. Pari 
 
 (U. S.) 430, 3 L. Ed. 390 (but see 6 WeekL 
 Rep. 10); an agent duly authorized for his 
 principal ; 8 B. & C. 10 ; Schoff v. Bloom- 
 field, 8 Yt. 171'; Inhabitants of Boston v. 
 Brazer, 11 Mass. 449; Furber v. Chamber- 
 lain, 29 N. II. 405; Wood v. R. Co., S X. V. 
 100; an executor or administrator at his own 
 peril, but not thereby necessarily admitting 
 assets; Wheatley v. Martin's Adm'r, 6 Leigh 
 (Ya.) 62; Lea v. Colston, 5 T. B. Monr. 
 (Ky.) 240; Ireland v. Smith, 1 Barb. (N. Y.) 
 419; McKeen v. Oliphant, IS N. J. L. 442; 
 assignees under bankruptcy and insolvency 
 laws, under the statutory restrictions, 
 Geo. IV. c. 10, and state statutes ; the right 
 being limited in all cases to that which the 
 person acting can control and legally <! 
 of; Baker v. Lovett; Mass. 78, 4 Am. Dec 
 88; Britton v. Williams's Devisees, 6 Munf. 
 (Ya.) 453; Milner v. Turner's Heirs, 4 T. B. 
 Monr. (Ky.) 240; Fort v. Battle. 13 S 
 
 6 M. (Miss.) 133; but not including a part- 
 ner, for a partnership; 1 Cr. M. & K. 681 ; 
 Karthaus v. Ferrer, 1 Pet. (U. S.) 222, 7 I,. 
 Ed. 121; Buchanan v. Curry, 19 John 
 
 Y.) 137, 10 Am. Dec. 200; Pillsbnry v. Cam- 
 mett, 2 N. H. 284; Armstrong v. Robh 
 Gill & J. (Md.) 412; Taylor v. Coryell 
 & R. (Pa.) 243; Lind. Partn. 129, - 
 Kent 49; the administratrix of a public 
 contractor may join in a submission to ar- 
 bitration of a controversy arising out of the 
 contract; Bailey v. District of Columbia, 9 
 App. (D. C.) 360. 
 
 What may be included in a submission. 
 Generally, any matter which tbe parties 
 might adjust by agreement, or which may 
 be the subject of an action or suit at law, 
 except perhaps actions (qui tarn) on penal 
 statutes by common informers ; for crime? 
 cannot be made the subject of adjustment 
 and composition by arbitration, this beinji
 
 ARBITRATION AND AWARD 
 
 228 
 
 ARBITRATION AND AWARD 
 
 against the most obvious policy of the law ; 
 McMullen v. Mayo, 8 Smodes & M. (Miss.) 
 298; Akely v. Akely, 16 Vt. 450; Caton v. 
 MacTavish, 10 Gill & J. (Md.) 192; Ligon v. 
 Ford, 5 Munf. (Va.) 10; Partridge v. Hood, 
 120 Mass. 403, 21 Am. Rep. 524; Stanwood 
 v. Mitchell, 59 Me. 121; Davenport v. Fulker- 
 son, 70 Mo. 417 ; including a debt certain on 
 a specialty, any question of law, the con- 
 struction of a will or other instrument, any 
 personal injury on which a suit will lie for 
 damages, although it may be also indictable; 
 9 Ves. 307; Smith v. Thorndike, 8 Greenl. 
 (Me.) 119; Walker v. Sanborn, 8 Greenl. 
 (Me.) 288; Jones v. Mill Corp., 6 Pick. 
 (Mass.) 148. All controversies of a civil 
 nature, including disputes concerning real 
 estate, may be the subject of a submission 
 for arbitration; Finley v. Funk, 35 Kan. 668, 
 12 Pac. 15; "and in all cases of injury, ei- 
 ther to the person or property, where damag- 
 es 'would be recoverable by action, the ar- 
 rangement of the matter may be left to arbi- 
 tration;" Miller v. Brumbaugh, 7 Kan. 343, 
 349. 
 
 An agreement to refer future disputes will 
 not be enforced by a decree of specific per- 
 formance, nor will an action lie for refusing 
 to appoint an arbitrator in accordance with 
 such an agreement ; 2 B. & P. 135 ; Tobey v. 
 County of Bristol, 3 Sto. S00, Fed. Cas. No. 
 14,065; Leonard v. House, 15 Ga. 473. It is 
 considered against public policy to exclude 
 from the tribunals of the state disputes the 
 nature of which cannot be foreseen; 4 Bro. 
 C. C. 312, 315. See Lauman v. Young, 31 Pa. 
 306. 
 
 An agreement to arbitrate any dispute 
 which may arise is ineffectual, under the 
 settled rules of law, to oust the jurisdiction 
 of the courts or debar either party from re- 
 sorting thereto ; The Excelsior, 123 U. S. 40, 
 8 Sup. Ct. 33, 31 L. Ed. 75; Seward v. City of 
 Rochester, 109 N. Y. 164, 16 N. E. 348; 
 Mentz v. Ins. Co., 79 Pa. 478, 21 Am. Rep. 
 80; Supreme Council of Order of Chosen 
 Friends v. Forsinger, 125 Ind. 52, 25 N. E. 
 129, 9 L. R. A. 501, 21 Am. St. Rep. 196; 
 Randel v. Canal Co., 1 Harr. (Del.) 233; 
 Chippewa Lumber Co. v. Ins. Co., 80 Mich. 
 116, 44 N. W. 1055; Hager v. Shuck, 120 Ky. 
 574, 87 S. W. 300, 27 Ky. L. Rep. 957; 5 H. 
 L. Cas. 811; 8 Term 139; Straits of Dover 
 S. S. Co. v. Munson, 100 Fed. 1005, 41 C. C. 
 A. 156, affirming id., 99 Fed. 787, where it is 
 said that "such agreements ever since Lord 
 Coke's time, and even before, have been held 
 to be no defense to an action in the courts." 
 Such an agreement does not oust the courts 
 of jurisdiction, and if such is its intent, it 
 is invalid; White v. R. Co., 135 Mass. 216; 
 Chamberlain v. R. Co., 54 Conn. 472, 9 Atl. 
 244; Dugan v. Thomas, 79 Me. 221, 9 Atl. 
 354 ; Hurst v. Litchfield, 39 N. Y. 377. Agree- 
 ments to submit questions of fact to arbitra- 
 tion have been sustained; 5 H. L. Cas. 811; 
 President, etc., Delaware & Hudson Canal 
 
 Co. v. Coal Co., 50 N. Y. 250, where it was 
 held that the general rule stated should be 
 applied to contracts only when coming strict- 
 ly within the letter and spirit of decisions 
 already made, and that it is contrary to the 
 spirit of later times and not to be extended. 
 Where, however, the agreement covers a case 
 of mixed law and fact and its effect is to 
 oust the jurisdiction of a court, it falls with- 
 in the general rule and is void; Ison v. 
 Wright, 55 S. W. 202, 21 Ky. L. Rep. 1368; 
 Vass v. Wales, 129 Mass. 38; 1 Exch. Div. 
 257. A provision in articles of an associa- 
 tion, that any dispute between it and any 
 member should be decided by arbitration in 
 lieu of legal proceedings, was held not to 
 oust the primary jurisdiction of the courts ; 
 McMahon v. Ben. Ass'n, 17 Phila. (Pa.) 216; 
 nor did a provision providing for submission 
 of disputes, not to a particular person or 
 tribunal, but to one or more persons to be 
 mutually chosen ; Home Fire Ins. Co. of 
 Omaha v. Kennedy, 47 Neb. 138, 66 N. W. 
 278, 53 Am. St. Rep. 521. 
 
 Revocation. The general principle with re- 
 spect to voluntary arbitrations is that a sub- 
 mission is subject to revocation by either 
 party; Chippewa Lumber Co. v. Ins. .Co., 80 
 Mich. 116, 44 N. W. 1055; People v. Nash, 13 
 Civ. Pro. (N. Y.) 301; before the making 
 and publication of the award ; Paulsen v. 
 Manske, 126 111. 72, 18 N. E. 275, 9 Am. St 
 Rep. 532; Oregon & W. M. Sav. Bank v. Mtg. 
 Co., 35 Fed. 22; Williams v. Mfg. Co., 153 N. 
 C. 7, 68 S. E. 902, 31 L. R. A. (N. S.) 679, 
 138 Am. St. Rep. 637, 21 Ann. Cas. 954; 
 Mead's Adm'x v. Owen, 83 Vt. 132, 74 Atl. 
 1058 ; Memphis Trust Co. v. Iron Works, 166 
 Fed. 398, 93 C. C. A. 162; Boston & L. R. Co. 
 v. R. Corp., 139 Mass. 463, 31 N. E. 751; Sid- 
 linger v. Kerkow, 82 Cal. 42, 22 Pac. 932; 
 Levy v. Ins. Co., 58 W. Va. 546, 52 S. E. 449; 
 but not under a clause in a lease ; Atterbury 
 v. Trustees, 66 Misc. 273, 123 N. Y. Supp. 25 ; 
 nor (under a statute) after final submission 
 to the arbitrators; id.; People v. Nash, 111 
 N. Y. 310, 18 N. E. 630, 2 L. R. A. 180, 7 Am. 
 St. Rep. 747; Thomas W. Finucane Co. v. 
 Board of Education, 190 N. Y. 76, 82 N. E. 
 737; but the "final submission" is held to be 
 when the allegations and proofs of both par- 
 ties are closed and the matter finally sub- 
 mitted to the arbitrators for their decision ; 
 In re Gitt, 140 App. Div. 382, 125 N. Y. Supp. 
 369; Atterbury v. Trustees of Columbia Col- 
 lege, 66 Misc. 273, 123 N. Y. Supp. 25. 
 
 Revocation of a submission may take place 
 at any time previous to the award, though it 
 be expressed in the agreement to be irrevoca- 
 ble. See infra. The remedy of the injured 
 party is by an action for breach of the agree- 
 ment; Morse, Arb. & Aw. 230; 4 B. & C. 
 103; Rowley v. Young, 3 Day (Conn.) 118; 
 Oregon & W. Mortg. Sav. Bank v. Mortgage 
 Co., 35 Fed. 22. 
 
 A submission under rule of court or a 
 statutory submission in a pending suit is
 
 ARBITRATION AND AWARD 
 
 229 
 
 ARBITRATION AND AWARD 
 
 generally irrevocable, both in England and 
 the United States; 5 Burr. 497; Haskell v. 
 Whitney, 12 Mass. 47; Inhabitants of Cum- 
 berland v. North Yarmouth, 4 Greenl. (Me.) 
 459; Hunt v. Wilson, G N. H. 3G ; Bloomer 
 v. Sherman, 5 Paige (N. Y.) 575; Tyson v. 
 Robinson, 25 N. C. 333; Carey v. County 
 Com'rs, 19 Ohio, 245 ; Poppers v. Knight, 09 
 111. App. 578; Zehner v. Nav. Co., 187 Pa. 
 487, 41 Atl. 4G4, G7 Am. St. Rep. 58G ; with- 
 out leave of the court. But "the mere fact 
 that the controversies agreed to be submit- 
 ted were the subject of a pending action 
 would not make it a submission by rule of 
 court"; Minneapolis & St. L. R. Co. v. Coop- 
 er, 59 Minn. 290, Gl N. W. 143. 
 
 There are cases, apparently only in Penn- 
 sylvania, which hold that where the submis- 
 sion assumes the form of a contract, upon a 
 sufficient consideration, it becomes irrevoca- 
 ble; McCune v. Lytle, 197 Pa. 404, 412, 47 
 Atl. 190, where Brown, J., says of this state- 
 ment, "So well is it settled * * * that 
 reference is hardly necessary to the * * * 
 authorities," and then quotes from several 
 cases, all of that state. 
 
 A right of revocation must be exercised 
 before the publication of the award; Butler 
 v. Greene, 49 Neb. 280, 68 N. W. 496; and 
 before the party seeking to revoke has no- 
 tice that the award is made; Coon v. Allen, 
 156 Mass. 113, 30 N. E. 83; but where the 
 submission provides for a written award, 
 it may be revoked after the arbitrators have 
 communicated to strangers their views, but 
 before they have signed an award ; Butler 
 v. Greene, 49 Neb. 280, 68 N. W. 496; but 
 not after the award is made and published ; 
 Levy v. Ins. Co., 58 W. Va. 546, 52 S. E. 449. 
 
 A submission is revocable even if it pro- 
 vides that it shall be irrevocable ; 8 Coke, 
 81 b, where the reason is given that "a man 
 cannot by his act make such authority, pow- 
 er or warrant not countermandable, which 
 is by the law and of its own nature counter- 
 mandable"; 5 B. & Aid. 507; People v. Nash, 
 111 N. Y. 310, 18 N. E. 630, 2 L. R. A. 180, 
 7 Am. St. Rep. 747; Power v. Power, 7 Watts 
 (Pa.) 205; Sartwell v. Sowles, 72 Vt. 270, 
 48 Atl. 11, 82 Am. St. Rep. 943; Tobey v. 
 Bristol County, 3 Sto. 800, Fed. Cas. No. 
 14,065; Heritage v. State, 43 Ind. App. 595, 
 88 N. E. 114. 
 
 The formality of the revocation must fol- 
 low and conform to that of the submission, 
 so a submission under seal can only be revok- 
 ed by writing under seal ; Home v. Welsh, 35 
 Pa. Super. Ct 569 ; Mullins v. Arnold, 4 Sneed 
 (Tenn.) 262; Van Antwerp v. Stewart, 8 
 Johns. (N. Y.) 125; Jacoby v. Johnston, 1 
 Hun (N. Y.) 242; Wallis v. Carpenter, 13 
 Allen (Mass.) 19; McFarlane v. Cushman, 
 21 Wis. 401 ; Brown v. Leavitt, 26 Me. 251 ; 
 one in writing only by writing; New York 
 Lumber & Wood-Working Co. v. Schneider, 
 1 N. Y. Supp. 441 (so, by statute, of any 
 
 revocation) ; Shisler v. Keavy, 75 Pa. 79; 
 Keyes v. Fulton, 42 Vt. 159; Mand 
 terson, 19 Ind. App. 619, 49 N. E. 974 ; so if 
 it be oral it may be in like manner revoked ; 
 Sutton v. Tyrrell, 10 Vt. 91 ; Dexter v. 
 Young, 40 N. H. 130. 
 
 The question whether a revocation was 
 made before the award is for the jury ; 
 Hunt's Lessee v. Guilford, 4 Ohio 310. The 
 institution of a suit by one party, before 
 award, generally revokes by implication the 
 submission; State v. Jenkins, -4 < ► N. J. L. 288, 
 29 Am. Rep. 237; Commercial Union A 
 ance Co. of London v. Hocking, 115 Pa. 407, 
 8 Atl. 5S9, 2 Am. St. Rep. 562; Peters' Adm'r 
 v. Craig, 6 Dana (Ky.) 307 1 Kimball v. Gil- 
 man, 60 N. H. 54; Paulsen v. Manske, 126 
 111. 72, 18 N. E. 275, 9 Am. St Rep. 5::::. 
 
 A submission is, however, not revoked by 
 the commencement of an action unless the 
 suit covers the whole subject matter sub- 
 mitted, and until a complaint is tiled by a 
 I»arty to the submission the adverse party 
 has no legal notice of the cause of action, 
 and the arbitrators may proceed with the 
 arbitration and render an award though a 
 summons has been issued; Williams v. Mfg. 
 Co., 153 N. C. 7, 68 S. E. 902, 31 L. R. A (N. 
 S.) 679, 138 Am. St. Rep. 637, 21 Ann. Cas. 
 954. 
 
 Though counsel may submit his client's 
 cause to arbitration, the latter may revoke 
 it before action upon it; Coleman v. Grubb, 
 23 Pa. 393. 
 
 As to arbitration as a condition precedent, 
 see 11 Harv. L. Rev. 234. 
 
 A submission at common law is generally 
 revoked by the death of either party (unless 
 it be stipulated otherwise), or of the arbi- 
 trator, or his refusal to act ; 2 B. & Aid. 394 ; 
 Dexter v. Young, 40 N. H. 130; Gregory v. 
 Pike, 94 Me. 27, 46 Atl. 793; but see Bacon 
 v. Crandon, 15 Pick. (Mass.) 79; Freeborn 
 v. Denman, 8 N. J. L. 116; Price's Adm'r v. 
 Tyson's Adm'rs, 2 Gill & J. (Md.) 479: 
 Leonard v. House, 15 Ga. 473; by the death 
 of the umpire, or the setting aside of the 
 award by a decree of a court ; Parsons v. 
 Ambos, 121 Ga. 98, 4S S. E. 696 ; so also by 
 marriage of a feme sole, and the husband 
 and wife may then be sued on her arbitra- 
 tion bond; 5 East 266. It is not revoked by 
 the bankruptcy of the party or by the death 
 of the arbitrator after publication of the 
 award; 4 B. & Aid. 2$0; Cartledge v. Cutliff, 
 21 Ga. 1. A submission in a pending action 
 at law falls where the award fails for mis- 
 conduct of the arbitrators ; Rand v. Peel, 
 74 Miss. 305, 21 South. 10. 
 
 Where the submission makes no provision 
 for filling a vacancy, if one occurs by the 
 death of an arbitrator or refusal to act, it 
 is a revocation ; Wolf v. Augustine, 1S1 Pa. 
 576, 37 Atl. 574. 
 
 A revocation may be good at law but bad 
 in equity, and revocation of a submission
 
 ARBITRATION AND AWARD 
 
 230 
 
 ARBITRATION AND AWARD 
 
 which has been made a rule of court is a 
 contempt; 1 Jac. & W. 4S5. 
 
 Effect of. A submission of a case in court 
 works a discontinuance and a waiver of de- 
 fects in the process; Camp v. Root, 18 Johns. 
 (N. Y.) 22; P.igelow v. Goss, 5 Wis. -121; 
 Crooker v. Buck, 41 Me. 355 ; and the bail 
 or sureties on a replevin bond are discharg- 
 ed; Hill v. Hunnewell, 1 Pick. (Mass.) 192; 
 Cunningham v. Howell, 23 N. C. 9; 2 B. & 
 Ad. 774. But see G Taunt. 379; 10 Bingh. 
 IIS. But this rule has been modified in Eng- 
 land by stat. IT & 18 Vict. c. 125, § 11 ; 8 
 Exch. 327. 
 
 The submission which defines and limits, 
 as well as confers and imposes, the duty of 
 the arbitrator must be followed by him in 
 his conduct and award ; but a fair and lib- 
 eral construction is allowed in its interpre- 
 tation; 1 "Wins. Saund. 65; Hume v. Hume, 
 3 Pa. 144 ; Cheshire Bank v. Robinson, 2 N. 
 H. 126 f Karthaus v. Ferrer, 1 Pet. (U. S.) 
 222, 7 L. Ed. 121. If general, it submits both 
 law and fact ; Indiana Cent. R. Co. v. Brad- 
 ley, 7 Ind. 49; if limited, the arbitrator can- 
 not exceed his authority ; Barrows v. Copen, 
 11 Cush. (Mass.) 37. 
 
 The statutes of many of the states of the 
 United States provide for submissions by 
 the parties before a justice of the peace, 
 In which case the award will be enforced 
 as if it had been made under /ule of court; 
 and statutes also regulate submissions made 
 under rule of court. 
 
 3. The Arbitrators. A private extraor- 
 dinary judge chosen by the parties who have 
 a matter in dispute, invested with power to 
 decide the same. Adopted from Bouv. L. 
 Diet, in Gordon v. U. S., 7 Wall. 188, 194, 
 19 L. Ed. 35 ; also in Miller v. Canal Co., 53 
 Barb. (N. Y.) 590, 595, with this additional 
 sentence from the same work : "Arbitrators 
 are so called because they have generally an 
 arbitrary power, there being, in common, no 
 appeal from their sentences, which are call- 
 ed awards." 
 
 A private extraordinary judge, to whose 
 decision matters in controversy are referred 
 by consent of the parties. 
 
 "Referee" is of frequent modern use as a 
 synonym of "arbitrator," but it is in its 
 origin of broader significance and it is less 
 accurate than arbitrator. 
 
 An arbitrator at common law "is to be 
 considered as a judge rf)r tribunal of the par- 
 ties' own choosing, and his decision or judg- 
 ment cannot be set aside unless for partiali- 
 ty or corruption, which will not be presum- 
 ed on slight grounds, but must be clearly 
 shown ;" McManus v. McCulloch, 6 Watts 
 (Pa.) 357. 
 
 Arbitrators are judges chosen by the par- 
 ties to decide matters submitted to them, 
 finally and without appeal ; Burchell v. 
 Marsh, 17 How. (U. S.) 344, 15 L. Ed. 96; 
 Miller v. Canal Co., 53 Bsirb. (N. Y.) 590; 
 and they must be taken as they are with 
 
 their weaknesses and frailties, and their ac- 
 tion if honest and fair, is binding; Silver 
 v. Lumber Co., 40 Fed. 192; but the power to 
 appoint them is not judicial, but executive; 
 Kean v. Ridgway, 1G S. & R. (Pa.) G5. 
 
 They are sometimes considered as the sub- 
 stitutes and sometimes as the judges of the 
 parties; they can do what the parties can 
 and more than the courts, and their power 
 is revocable as a power of attorney; Dixon 
 v. Morehead, Add. (Pa.) 216. 
 
 Arbitrators have the powers of a court 
 and jury; Kennedy v. Luhman, 13 Montg. 
 Co. L. Rep. (Pa.) 131. They are judges, not 
 agents of the parties appointing them ; 1 Ves. 
 226 ; 9 Ves. G9 ; and their duties are more 
 judicial than fiduciary; Collins v. Oliver, 4 
 Humph. (Tenn.) 439; quasi-judicial officers; 
 Hoosac Tunnel, Dock & Elevator Co. v. 
 O'Brien, 137 Mass. 424, 50 Am. Rep. 323; 
 per contra, it is said that they are the 
 agents of both parties and their acts are to 
 be considered as the acts of the parties 
 themselves; Hays v. Hays, 23 Wend. (N. 
 Y.) 3G3; Strong v. Strong, 9 Cush. (Mass.) 
 560. 
 
 An arbitrator must be a disinterested per- 
 son to whom a matter in dispute is submit- 
 ted for decision ; Garr v. Gomez, 9 Wend. 
 (N. Y.) 649; Miller v. Canal Co., 53 Barb. 
 (N. Y.) 590; State v. Appleby, 25 S. C. 
 100, 104; Perry v. Cobb, 88 Me. 435, 34 Atl. 
 278, 49 L. R. A. 389. "In order to clothe a 
 person with the authority of an arbitrator, 
 the parties must mutually agree to be bound 
 by the decision of the person chosen to de- 
 termine the matter in controversy ;" Gordon 
 v. U. S., 7 Wall. 1S8, 194, 19 L. Ed. 35. Like 
 jurors impannelled for the trial of a cause, 
 arbitrators are invested pro hac vice with 
 judicial functions, the rightful discharge of 
 which calls for and presupposes the most 
 absolute impartiality ;" Strong v. Strong, 9 
 Cush. (Mass.) 560; Grosvenor v. Flint, 20 
 R. I. 21, 37 Atl. 304 ; where an appraiser un- 
 der an insurance policy was not disinterest- 
 ed, and that fact was concealed, a suit was 
 held maintainable to set aside the appraise- 
 ment; Bradshaw v. Ins. Co., 137 N. Y. 137, 
 32 N. E. 1055, where it was held unnecessary 
 to decide whether it was an arbitration. 
 
 Appointment and Qualifications. Usually a 
 single arbitrator is agreed upon, or the par- 
 ties each appoint one, with a stipulation that, 
 if they do not agree, another person, called 
 an umpire, named, or to be selected by the 
 arbitrators, shall be called in, to whom the 
 matter is to be referred ; Cald. Arb. ch. IV ; 
 Smith v. Morse, 9 Wall. (U. S.) 76, 19 L. Ed. 
 597. 
 
 In general, any objection to the appoint- 
 ment of an arbitrator ; Estice v. Cockerell, 
 26 Miss. 127; Indiana Ins. Co. v. Brehm, 88 
 Ind. 578; Robb v. Brachman, 38 Ohio St 
 423 ; or umpire will be waived by attending 
 before him; 9 Ad. & E. 679; Anderson y.
 
 ARBITRATION AND AWARD 
 
 231 
 
 ARBITRATION AND AWARD 
 
 Burchett & Farley, 48 Kan. 153, 29 Pac. 315; 
 and an objection should be made at the trial ; 
 Cones v. Vanosdol, 4 Ind. 248; Madison Ins. 
 Co. v. Griffin, 3 Ind. 277; Graham v. Gra- 
 ham, 9 Pa. 254, 49 Am. Dec. 557 ; Christman 
 v. Moran, 9 Pa. 487; one who goes to trial 
 before a referee without requiring an oath 
 waives the oath; Newcomb v. Wood, 97 U. 
 S. 581, 24 \j. Ed. 1085; Maynard v. Frederick, 
 7 Cush. (Mass.) 247. It is said that any per- 
 son may be chosen as an arbitrator; Morse, 
 Arb. & Aw. 99; and it is no objection that 
 one has been formerly counsel for the party 
 in whose favor be found, thai fad not being 
 known to the other party; Goodrich v. liul- 
 bert, 123 .Mass. 190, 25 Am. Rep. 60; or that 
 one had been intimate with the party and 
 had heard his version of the dispute before; 
 Morville v. Tract Soc, 123 Mass. 129; an 
 employe 1 of one party; Howard v. R. Co., 24 
 Fla. 5G0, 5 South. 356; a stockholder of a 
 corporation party; Williams v. Ry. Co., 112 
 Mo. 4G3, 20 S. W. 631, 34 Am. St. Rep. 403; 
 Inhabitants of Leominster v. R. Co., 7 Allen 
 (Mass.) 38; a woman, married or single; 
 Evans v. Ives, 15 Phila. (Pa.) 635 ; or a judge, 
 if named by the parties; Hopkins v. So- 
 douskie, 1 Bibb (Ky.) 14S; Galloway's Heirs 
 v. Webb, Hard. (Ky.) 31S (but not under the 
 civil law ; Dom. Civ. L. sec. Ill3) ; or one 
 who has acted as an arbitrator before in the 
 same capacity; Stemmer v. Ins. Co., 33 Ore. 
 65, 49 Pac. 5S8, 53 Pac. 498 ; Van Winkle v. 
 Ins. Co., 55 W. Va. 286, 47 S. E. 82. The re- 
 lation of landlord and tenant subsisting be- 
 tween an arbitrator and one of the parties 
 does not disqualify him; Fisher v. Towner, 
 14 Conn. 26; nor does the fact that the ref- 
 eree and the attorney for one of the parties 
 had an office together and were in daily and 
 friendly intercourse ; Perry v. Moore, 2 E. D. 
 Smith (N. Y.) 32. 
 
 Whether natural or legal disabilities are 
 a disqualification appears not to be authori- 
 tatively settled. It is said that they do not 
 so operate; Viner, Abr. Arbitrament (A. 2); 
 Russ. Arb. & Aw. (9th Ed.) 92 (citing only 
 Viner) ; Morse, Arb. & Aw. 99 (citing only 
 Russell); contra, Com. Dig. Arbitrament 
 (C), who says that persons of nonsane mem- 
 ory, lunatics, infants, persons not sui juris 
 as a villein, persons dead in law, as a monk, 
 one attainted of treason or felony, cannot be 
 arbitrators (citing no case but only West, 
 Symb. 163 o.). There appears to be no de- 
 cided case on the subject and no definite or 
 modern authority to indicate that a person 
 who is not sui juris for any other purpose 
 would be qualified to act in this capacity. 
 The rule of the civil law seems to be def- 
 inite to the effect that all persons may be 
 arbitrators except such as are under some 
 Incapacity or infirmity which renders them 
 unfit for that function ; Dom. Civ. L. sec. 
 1112. The only case cited to support the 
 right of parties to appoint any one without . 
 
 qualification is simply a . that it is 
 
 immaterial whether the arbitrator be a 
 fessional man or not; 8 Dowl. 879. 
 
 There are certain facts which, as in the 
 case of judges or jurors, will render a per- 
 son Incapable of being an arbitrator, if they 
 an- unknown to the party obj 
 example, interest in the subject mat 
 nor v. Simpson, 4 Sadler (Pa.) L05, 7 Atl. 161 ; 
 Pearson v. Barringer, 109 N. C. 31 
 942; strong v. Strong, L2 Cush. (Mast 
 (where the question of the arbitrator's im- 
 partiality was submitted to the jury in an 
 ail ion on a bond to abide the award); kin- 
 ship to either party; Brown v. I.cav. 
 Me. 251 (but not equal relationship to both 
 parties; McGregor V. Sprott, 59 Hun, 617, 13 
 N. Y. 191) ; a transfer to an arbitrator 
 pending arbitration; Spearman v. Wilson. 
 1 I Ga. 473 ; free judgment of the case ; 
 tie v. Ililliard. 55 N. H. -ii:s (but not an i pin- 
 ion expressed five years before; Brush v. 
 Fisher, 70 Mich. 469, 38 N. W. 446, 14 Am. 
 St Rep. 510) ; previous conviction of per- 
 jury ; Codes, P. C. -57; strong Idas and 
 prejudice; Bash v. Christian, 77 Ind. 290, 
 
 Proceedings. Arbitrators should give no- 
 tice of the time and place of hearing to the 
 parties Interested; Lutz v. Linthicum, 8 Pet. 
 (U. S.) 165, 178, 8 L. Ed. 904 ; Elmendorf v. 
 Harris. 23 Wend. (N. Y.i 628, 35 A in. Dec. 
 587; Bushey v. Culler. 26 Md. 534; Crowell 
 v. Davis, 12 Mete. (Mass.) 293; Vessel Own- 
 ers' Towing Co. v. Taylor, 126 111. 250, 18 N. 
 E. 663; Curtis v. City of Sacramento, 64 
 Cal. 102, 28 Pac. 10S ; an award made with- 
 out such notice of the hearing is a nullity; 
 Peters v. Newkirk, 6 Cow. (N. Y.) 103 ; it is 
 not binding on the party having no notice; 
 Cobb v. Wood, 32 Me. 455; McKinney v. 
 Page, ?>2 Me. 513; Dormoy v. Knower, 55 la. 
 722, 8 N. W. 670; but where the BubmJ 
 is by written agreement a surety in the 
 ment need not be notified of the bearing; 
 Farmer v. Stewart, 2 X. II. 97; and where 
 the respective attorneys of the parties were 
 arbitrators and notice was unnecessary; Hill 
 v. Hill, 11 Smedes & M. (Miss.) 616; and 
 where notice was given and the party Bought 
 to set aside the award on the ground that he 
 was unavoidably prevented from attending 
 by the obstruction of roads caused by nigh 
 water, it was not error to refuse the mo- 
 tion; Shroyer v. Barkley, 24 Mo. 346. Where 
 one party had ineffectually attempted to re- 
 voke his submission and refused to attend. 
 the arbitrator may proceed ex parte, without 
 giving him notice; 1 Jac. & W. 485, 492; and 
 the refusal of a party to attend or concern 
 himself with the matter is a waiver of no- 
 tice; Vincent v. Ins. Co., 120 la. 272, 94 X. 
 W. 458. In England the practice seems to 
 be that the arbitrators are not required to 
 give notice, but that the party obtaining an . 
 appointment of the time for hearing should 
 serve it on the solicitors of the other party ;
 
 ARBITRATION AND AWARD 
 
 232 
 
 ARBITRATION AND AWARD 
 
 Russ. Arb. & Aw. 132; Morse Arb. & Aw. 
 117 ; and in one case Lord Hardwicke beld 
 that no notice from the arbitrators was re- 
 quired; 3 P. Wms. 529. The power of the 
 arbitrators is not determined by their neg- 
 lect to attend at the time designated and they 
 may appoint another session within any rea- 
 sonable time ; Harrington v. Rich, 6 Vt. 6G6. 
 
 They should all conduct the investigation 
 together, and should sign the award in each 
 other's presence ; Smith v. Smith, 28 111. 56 ; 
 Thompson v. Mitchell, 35 Me. 281; Hills v. 
 Ins. Co., 129 Mass. 345; but a majority is 
 held sufficient; Parker v. Ins. Co., 3 R. I. 
 192 ; Robinson v. Bickley, 30 Pa. 384 ; Hoff- 
 man v. Hoffman, 26 N. J. L. 175; Kile v. 
 Chapin, 9 Ind. 150; Henderson v. Buckley, 
 14 B. Monr. (Ky.) 292; Cartledge v. Cutliff, 
 21 Ga. 1 ; Doherty v. Doherty, 148 Mass. 367, 
 19 N. E. 352. An award by two of three ar- 
 bitrators is binding; Doyle v. Patterson, 84 
 Va. 800, 6 S. E. 138 ; Hewitt v. Craig, 86 Ky. 
 23, 5 S. W. 280; contra, Kent v. French, 76 
 la. 187, 40 N. W. 713. See supra as to mat- 
 ters of "public concern." 
 
 In investigating matters in dispute, they 
 are allowed the greatest latitude; 1 B. & P. 
 91; Langley v. Hickman, 1 Sandf. (N. Y.) 
 681 ; Hollingsworth v. Leiper, 1 Dall. (XL S.) 
 161, 1 L. Ed. 82 ; Jones v. Boston Mill Corp., 
 6 Pick. (Mass.) 148; Mulder v. Cravat, 2 
 Bay (S. C.) 370; Askew v. Kennedy, 1 Bail 
 (S. C.) 46. But see Fennimore v. Childs, 6 
 N. J. L. 3S6 ; McAlister v. McAlister, 1 Wash. 
 (Va.) 193 ; Fowler v. Thayer, 4 Cush. (Mass.) 
 Ill; Forbes v. Frary, 2 Johns. Cas. (N. Y.) 
 224; Latimer v. Ridge, 1 Binn. (Pa.) 458. 
 They are judges both of law and of fact, and 
 are not bound by the rules of practice adopt- 
 ed by the courts; 1 Ves. Ch. 369; Burchell 
 v. Marsh, 17 How. (U. S.) 344, 15 L. Ed. 96 ; 
 Skeels v. Chickering, 7 Mete. (Mass.) 316; 
 Ward v. Bank, 7 Mete. (Mass.) 486 ; Kendall 
 v. Power Co., 36 Me. 19 ; Long v. Rhodes, 36 
 Mie. 108; Ebert v. Ebert, 5 Md. 353; In re 
 Riddle's Estate, 19 Pa. 431 ; Sargeant v. Butts, 
 21 Vt. 99 ; White v. White, 21 Vt. 250 ; Ben- 
 nett v. Bennett, 25 Conn. 66 ; Smith v. Doug- 
 lass, 16 111. 34; Ross v. Watt, 16 111. 99; 
 Lunsford v. Smith, 12 Gratt. (Va.) 554; In- 
 diana Cent. Ry. Co. v. Bradley, 7 Ind. 49; 
 Hotaling v. Cronise, 2 Cal. 64; Tyson v. 
 Wells, id. 122; Sessions v. Bacon, 23 Miss. 
 272; Price v. Brown, 98 N. Y. 388; King v. 
 Mfg. Co., 79 N. C. 360; Adams' Adm'r v. 
 Ringo, 79 Ky. 211. Thus, the witnesses were 
 not sworn in Bergh v. Pfeiffer, Lalor's Supp. 
 (N. Y.) 110; Woodrow v. O'Conner, 28 Vt. 
 776. They may decide ex cequo et bono, and 
 need not follow the law; the award will be 
 set aside only when it appears that they 
 meant to be governed by the law but have 
 mistaken it; 2 C. B. 705; Kleine v. Catara, 
 2 Gall. 61, Fed. Cas. No. 7,869 ; Pringle v. 
 McClenachan, 1 Dall. (U. S.) 486, 1 L. Ed. 
 235; Jones v. Corp., 6 Pick. (Mass.) 148; 
 
 White v. White, 21 Vt. 250; Greenough ▼. 
 Rolfe, 4 N. H. 357 ; but if they decide a mat- 
 ter honestly and fairly according to their 
 judgment, the award will not be set aside 
 because they decide the facts erroneously, or 
 were mistaken in the law they applied to 
 them, or decide on an erroneous theory ; God- 
 dard v. King, 40 Minn. 164, 41 N. W. 659; 
 Hall v. Ins. Co., 57 Conn. 105, 17 Atl. 356; 
 Baltimore & O. R. Co. v. Canton Co., 70 Md. 
 405, 17 Atl. 394; Thornton v. McCormick, 
 75 la. 285, 39 N. W. 502 ; Burchell v. Marsh, 
 17 How. (U. S.) 344, 15 L. Ed. 96. 
 
 Under submissions in pais, the attendance 
 of witnesses and the production of papers 
 was entirely voluntary at common law ; 2 
 Sim. & S. 418 ; 2 C. & P. 550. It was other- 
 wise when made under a rule of court. 
 
 Duties and powers of. Arbitrators can- 
 not delegate their authority; Cro. Eliz. 726; 
 6 C. B. 258 ; Sutton v. Horn, 7 S. & R. (Pa.) 
 228 ; Kingston v. Kincaid, 1 Wash. C. C. 448, 
 Fed. Cas. No. 7,821; Shipman v. Fletcher, 
 82 Va. 601; Hicks v. McDonnell, 99 Mass. 
 459. The power ceases with the publication 
 of the award ; Newman v. Labeaume, 9 Mo. 
 30; and death after publication and before 
 delivery does not vitiate it; Cartledge v. 
 Cutliff, 21 Ga. 1. They cannot be compel- 
 led to make an award ; in which respect 
 the common law differs from the Roman; 
 Story, Eq. Jur. § 1457 ; or to disclose the 
 grounds of their judgment ; 3 Atk. 644 ; Ebert 
 v. Ebert, 5 Md. 353 ; State v. Peticrew's Ex'r, 
 19 Mo. 373. 
 
 An arbitrator may retain the award till 
 paid for his services, but cannot maintain 
 assumpsit in England without an express 
 promise; 2 M. & G. 847, 870; 3 Q. B. 466, 
 928. But see 1 Gow. 7; 1 B. & P. 93. In 
 the United States he may ; Hinman v. Hap- 
 good, 1 Den. (N. Y.) 1S8, 43 Am. Dec. 663; 
 Goodall v. Cooley, 29 N. H. 48. 
 
 A submission to arbitration by one of sev- 
 eral parties without the consent of the oth- 
 ers, whether by rule of court or otherwise, 
 is void ; Gregory v. Trust Co., 36 Fed. 408. 
 
 4. The Umpire. Sometimes a submission 
 provides for the appointment of one arbitra- 
 tor by each party with authority, if they dis- 
 agree, to call in a third person, usually des- 
 ignated as the umpire. This term "denotes one 
 who is to decide the controversy in case the 
 others cannot agree ;" Keans v. Rankin, 2 
 Bibb (Ky.) 88. The jurisdiction of the um- 
 pire and arbitrators cannot be concurrent; 
 Morse, Arb. & Aw. 241 ; if the arbitrators 
 make an award, it is binding; if not, the 
 award of the umpire is binding; T. Jones 
 167. If the umpire sign the award of the 
 arbitrators, it is still their award, and vice 
 versa; Rigden v. Martin, 6 Harr. & J. (Md.) 
 403. He determines the issue submitted to 
 the arbitrators on which they have failed to 
 agree, which is his sole award ; and neither 
 of the original arbitrators is required to
 
 ARBITRATION AND AWARD 
 
 233 
 
 ARBITRATION AND AWARD 
 
 Join in the award ; Haven v. Winnisimmet 
 Co., 11 Allen (Mass.) 384, 87 Am. Dec 723; 
 Ingrahain v. Whitmore, 75 111. 30. Some- 
 times the third person called in so to decide 
 is called a "special arbitrator." The distinc- 
 tion is that, when the special or third arbi- 
 trator Is called in, the authority to make an 
 award is vested in the three jointly, and 
 even if an award by two is good, it must he 
 the result of deliberations, but when, upon 
 a disagreement between arbitrators, an um- 
 pire is called in, the powers of the former 
 are functus officio, and the Latter has exclu- 
 sive authority to make a decision; Day v. 
 Hammond, 57 N. Y. 479, 15 Am. Rep. 522, 
 quoting Lyon v. Blossom, 4 Duer (N. Y.) 318; 
 Ohandos v. Ins. Co., 84 Wis. 184, 54 N. W. 
 390, 19 L. R. A. 321 ; Hartford Fire Ins. Co. 
 v. Mercantile Co., 56 Fed. 378, -5 C. C. A. 524. 
 
 The power to appoint an umpire "must be 
 given in express words" and is not to be 
 implied even from "power given to two ar- 
 bitrators in the event of their disagreement 
 to select a third person," as in such case the 
 latter "is a joint arbitrator and not an um- 
 pire" ; Gaffy v. Bridge Co., 42 Conn. 143, 
 quoting Lyon v. Blossom, 4 Duer. (N. Y.) 328. 
 
 A third or special arbitrator must he ap- 
 pointed before the hearing unless the ap- 
 pointment of one is waived either expressly 
 or tacitly by appearance of the parties before 
 the two; Badders v. Davis, 88 Ala. 367, 6 
 South. 834 ; Phipps v. Tompkins, 50 Ga. 641 ; 
 14 U. C. Q. B. 495 ; but an umpire may be 
 appointed either before; Peck v. Wakely, 2 
 McCord (S. C.) 279; Van Cortlandt v. Un- 
 derbill, 17 Johns. (N. Y.) 405 ; Rigden v. Mar- 
 tin, 6 Harr. & J. (Md.) 403; or after a dis- 
 agreement between the arbitrators ; Rogers 
 v. Corrothers, 26 W. Va. 238; Chandos v. 
 Ins. Co., 84 Wis. 184, 54 N. W. 390,* 19 L. 
 R. A. 321 ; unless otherwise provided by 
 statute; In re Grening, 74 Hun 62, 26 N. Y. 
 S. 117. 
 
 Arbitrators may appoint an umpire after 
 their term of service has expired, if the 
 time is not gone within which the umpire 
 was to make his award ; McKinstry v. Solo- 
 mons, 2 Johns. (N. Y.) 57. Subsequent dis- 
 sent of the parties, without just cause, will 
 have no effect upon the appointment; but 
 they should have notice ; Crowell v. Davis, i 
 12 Mete. (Mass.) 293. If an umpire refuses ! 
 to act, another may be appointed toties quo- 
 tics; 11 East 367. If the arbitrators and 
 umpire act together and make a joint award, 
 it will be good ; Rison v. Berry, 4 Rand. 
 (Va.) 275; Bulstr. 184. 
 
 Under an agreement to arbitrate, the sub- 
 sequent proceeding of one arbitrator and 
 the umpire to make an award without the 
 presence of the other arbitrator is unau- 
 thorized and illegal ; Cravens v. Estes, 144 
 Ky. 511. 139 S. W. 761 : and so is the choice 
 of an umpire by lot, and the award will be 
 set aside ; 9 B. & C. 624 ; 9 Ad. & El. 699. 
 
 The umpire is called into the arbitral 
 act only after a disagreement between the 
 arbitrators, and his opinion and jud. 
 must control the award; Mullins v. Arnold, 4 
 i (Tenn.) 262; but he cannot, in the 
 absence of one of the parties and one of the 
 arbitrators, act on information from thi 
 er party and arbitrator; Cravens v. . 
 144 Ky. 511, 139 S. W. 76L 
 
 Where the agreement permits a majority 
 decision, the withdrawal of one arbitrator 
 and his refusal to act, after one party has 
 attempted to withdraw, will not affect an 
 
 award made the same day by the oth< 
 bitrators; Atterbury v. Trustees of Colum- 
 bia College, 66 Misc. Rep. 273, 123 N. V. S. 25. 
 
 At common law all the arbitrators must 
 
 agree unless the submission provides to the 
 contrary; Washburn v. White. 197 
 540, 84 X. E. 106; Tennessee Lumber Mfg. 
 Co. v. Clark Bros. Co., 182 Fed. 618, 105 C. 
 C. A. 150 ; even where by statute or under 
 a contract a majority may make a report, 
 all the proceedings must bo participated in 
 by all the members; Heritage v. State, 43 
 Ind. App. 595, 88 N. E. 114; but where the 
 agreement provided for an award by two of 
 three, the fact that one refused to sign the 
 award, or to participate in a further ascer 1 
 tainment of damages which the settlement 
 required, did not invalidate a subsequent pro- 
 ceeding for ascertaining damages; Toledo S. 
 S. Co. v. Transp. Co., 184 Fed. 391, 106 C. C. 
 A. 501. And where the contract provided 
 that one arbitrator should be selected by 
 each party and they tw.o have power to se- 
 lect a third, it was, held that by clear impli- 
 cation two were authorized to make a bind- 
 ing and final award; Clark Bros. Co. v. 
 Mfg. Co., 176 Fed. 929; but this ease was 
 reversed in Tennessee Lumber Mfg. Co. v. 
 Clark Bros. Co., 1S2 Fed. 618, 105 C. C. A. 
 1 -~ « "►. where the distinction is well put be- 
 tween cases where the power given to two 
 to appoint a third is conditioned upon their 
 disagreement or no ; in the former case, the 
 third is an umpire, and a majority award 
 would be valid, but in the latter case, "the 
 three constituted the board, * * * (and) 
 their award, to be valid, must be unani- 
 mous;" arid to the same effect Is Weaver v. 
 Powel, 148 Pa. 372, 23 AtL 1070. Both 
 courts cite Hohson v. McArthur, lo' Pet. (V. 
 S.) 182, 10 L. Ed. 930, where the agreement 
 was that "if the two could not agree on 
 the value of the land or any part thereof, 
 they should choose a third person, who 
 should agree on the value of the land," and 
 it was held "a more reasonable construction 
 to consider the third man in the character 
 of an umpire, to decide betweeu the two that 
 should disagree," and the award of two was 
 held good. This case is contrary to the ap- 
 parently well settled rule that, when there 
 is an umpire, he a -one decides and the arbi- 
 trators do not participate. But there are
 
 ARBITRATION AND AWARD 
 
 234 
 
 ARBITRATION AND AWARD 
 
 other cases ''on all fours" with that in Hob- 
 son v. McArthur, 16 Pet. (U. S.) 182, 10 L. 
 Ed. 930, as Quay v. Westcott, 60 Pa. 103. 
 See supra. 
 
 5. The Award. The aioard is the judgment 
 or decision of arbitrators or referees on a 
 matter submitted to them. It is also the 
 writing containing such judgment. Cowell ; 
 Tcrmes de la Ley; Jenk. 137; Watson, Arb, 
 174; Russell, Arb. 234. 
 
 The word is derived from the Latin, 
 aivarda, awardum, Old French, agarda from 
 a garder, to keep, preserve, to be guarded, or 
 kept: so called because it is imposed on the 
 parties to be observed or kept by them. Spel- 
 man, Gloss. 
 
 Requisites of. To be conclusive, the award 
 should be consonant with and follow the sub- 
 mission, and affect only the parties to the 
 submission ; otherwise, it is an assumption 
 of power, and not binding; Lutw. 530 (On- 
 yons v. Cheese) ; 24 E. L. & Eq. 346 ; 8 Beav. 
 361; Martin v. Williams, 13 Johns. (N. Y.) 
 268; Howard v. Edgell, 17 Vt. 9; Barrows 
 v. Capen, 11 Cush. (Mass.) 37; McNear v. 
 Bailey, 18 Me. 251; Gates v. Treat, 25 Conn. 
 71 ; Fountain v. Harrington, 3 Harr. (Del.) 
 22; State v. Stewart, 12 Gill & J. (Md.) 456; 
 Jessee v. Cater, 25 Ala. 351 ; Thornton v. 
 Carson, 7 Cra. (U. S.) 599, 3 L. Ed. 451. See 
 Humphreys v. Gardner, 11 Johns. (N. Y.) 61; 
 Scott v. Barnes, 7 Pa. ,134 ; Leslie v. Leslie, 
 50 N. J. Eq. 103, 24 Atl. 319; Buntain v. 
 Curtis, 27 111. 374. Where it exceeds the 
 terms of the submission, it is not void, where 
 the judge on confirmation excludes as much 
 as is incompetent; McCall v. McCall, 36 S. 
 C. 80, 15 S. E. 348 ; but it is so where dam- 
 ages are allowed in a lump sum, in which are 
 included matters not submitted to them; 
 Dodds v. Hakes, 114 N. Y. 260, 21 N. E. 398. 
 
 It must be final and certain; Morse, Arb. 
 383; 5 Ad. & E. 147; Barnet v. Gilson, 3 
 S. & R. (Pa.) 340; Nichols v. Ins. Co., 22 
 Wend. (N. Y.) 125; Whitcomb v. Preston, 
 13 Vt. 53; Hanson v. Webber, 40 Me. 194; 
 Hazen v. Addis, 14 N. J. L. 333; Carter v. 
 Calvert, 4 Md. Ch. Dec. 199; Bannister v. 
 Read, 1 Gilm. (111.) 92; Thomas v. Molier, 3 
 Ohio 266 ; Parker v. Eggleston, 5 Blackf. (Ind.) 
 128 ; Montifiori v. Engels, 3 Cal. 431 ; Lee v. 
 Onstott, 1 Ark. 206 ; Ingraham v. Whitmore, 
 75 111. 24; Rhodes v. Hardy, 53 Miss. 587; 
 Peck v. Wakely, 2 McCord (S. C.) 279; Lyle 
 v. Rodgers, 5 Wheat. (U. S.) 394, 5 L. Ed. 
 117; Perkins v. Giles, 50 N. Y. 228; Carson 
 v. Carter, 64 N. C. 332 ; Parker v. Parker, 103 
 Mass. 167 ; Burns v. Hendrix, 54 Ala. 78 ; 
 and see Patterson v. Leavitt, 4 Conn. 50, 10 
 Am. Dec. 98; Green v. Miller, 6 Johns. (N. 
 Y.) 39, 5 Am. Dec. 184; Towne v. Jaqnith, 
 6 Mass. 46, 4 Am. Dec. 84 ; conclusively ad- 
 judicating all the matters submitted ; Cal- 
 vert v. Carter, 6 Md. 135 ; Cox v. Gent, 1 Me- 
 Mull. (S. C.) 302; Pierson v. Norman, 2 Cal. 
 599; De Groot v. U. S., 5 Wall. (U. S.) 419, 
 
 18 L. Ed. 700 ; Frison v. De Peiffer, S3 Me. 
 71, 21 Atl. 746; and stating the decision in 
 such language as to leave no doubt of the 
 arbitrator's intention, or the nature and ex- 
 tent of the duties imposed by it on the par- 
 ties ; Pierson v. Norman, 2 Cal. 599, and 
 cases above. An award reserving the de- 
 termination of future disputes ; Calvert v. 
 Carter, 6 Md. 135 ; an award directing a 
 bond without naming a penalty ; 5 Co. 77 ; 
 Rolle, Abr. Arbitration 2, 4; an award that 
 one shall give security for the performance 
 of some act or payment of money, without 
 specifying the kind of security, is invalid; 
 Viner, Abr. Aroit. 2, 12 ; Bacon, Abr. Arbit. 
 E. 11, and cases above. So is one that finds 
 that a party is entitled to receive his final 
 payment and fails to ascertain the amount ; 
 Flannery v. Sahagian, 134 N. Y. 85, 31 N. E. 
 319. 
 
 It must be possible to be performed, and 
 must not direct anything to be done which 
 is contrary to law; 2 B. & Aid. 528; Yea- 
 mans v. Yea mans, 99 Mass. 585. It will be 
 void if it direct a party to pay a sum of mon- 
 ey at a day past, or direct him to commit 
 a trespass, felony, or an act which would 
 subject him to an action ; 1 M. & W. 572 ; 
 or if it be of things nugatory and offering 
 no advantage to either of the parties ; 6 J. 
 B. Moore 713. 
 
 It must be without palpable or apparent 
 mistake; Kleine v. Catara, 2 Gall. 61, Fed. 
 Cas. No. 7,869; 3 B. & P. 371; Pringle v. 
 McClenachan, 1 Dall. (U. S.) 487, 1 L. Ed. 
 235 ; Boston Water Power Co. v. Gray, 6 
 Mete. (Mass.) 131. For if the arbitrator ac- 
 knowledges that he made a mistake, or if an 
 error (in computation, for instance) is appar- 
 ent on the face of the award, it will not be 
 good ; Taylor v. Sayre, 24 N. J. L. 647 ; Good- 
 ell v. .Raymond, 27 Vt. 241 ; Roloson v. Car- 
 son, 8 Md. 208 ; Goodrich v. City of Marys- 
 ville, 5 Cal. 430; Spoor v. Tyzzer, 115 Mass. 
 40; Eisenmeyer v. Sauter, 77 111. 515 ; Amer- 
 ican Screw Co. v. Sheldon, 12 R. I. 324 ; for, 
 although an arbitrator may decide contrary 
 to law, yet if the award attempts to follow 
 the law, but fails to do so from the mistake 
 of the arbitrator, it will be void ; Kendrick 
 v. Tarbell, 26 Vt. 416; Ennos v. Pratt, id. 
 630 ; Burchell v. Marsh, 17 How. (U. S.) 344, 
 15 L. Ed. 96. 
 
 A parol award is sufficient notwithstanding 
 the submission is in writing, if the submis- 
 sion does not in terms require an award in 
 writing ; Marsh v. Packer, 20 Vt. 198 ; an 
 award determined by lot is vitiated thereby ; 
 Luther v. Medbury, 18 R. I. 141, 26 Atl. 37, 
 49 Am. St. Rep. 753; and where the umpire 
 was chosen by lot a rule to set it aside was 
 made absolute; 9 B. & Cr. 624; 9 Ad. & El. 
 699. ' 
 
 An award may be in part good and in part 
 void, in which case it will be enforced so far 
 as valid, if the good part is separable from
 
 ARBITRATION AND AWARD 
 
 235 
 
 ARBITRATION AND AWARD 
 
 the bad ; 10 Mod. 204 ; Cro. Jac. GC4 ; Martin 
 v. Williams, L3 Johns. (N. Y.i 264; Orcutt v. 
 Butler, 42 Me. 83; Barrows v. Capen, 11 
 Cush. (Mass.) 37 ; Richards v. Brocken- 
 brough's Adm'r, 1 Rand. (Va.) 449; Taylor v. 
 Nicolson, 1 Hen. & M. (Va.) 67; Brown v. 
 Warnock, 5 Dana (Ky.) 492; Dalrymple v. 
 Whitlngham, 26 vt. 345; Cones v. Vanosdol, 
 4 Ind. 248; Cromwell v. Owings, 6 Harr. & 
 J. (Md.) 10; Lyle v. Rodgers, 5 Wheat (U. 
 S.) 391, 5 L. Ed. 117. 
 
 As to form, the award .should, in general, 
 follow the terms of the submission, which 
 frequently provides the time and manner of 
 making ami publishing the award, it may 
 be by parol (oral or written), or by deed; 3 
 Bulstr. 311; Marsh v. Packer, 20 Vt. 198. It 
 should be signed by all the arbitrators in the 
 presence of each other ; Leavitt v. Inv. Co., 
 54 Fed. 4.39, 4 C. C. A. 42.".; Kent. v. French, 
 70 la. 187, 40 N. W. 713. Sec Godfrey v. Kno- 
 dle, 44 111. App. 638 ; Barr v. Chandler, 47 X. J. 
 Bq. 532, 20 Atl. 733 ; contra, Doyle v. Patter- 
 son, 84 Va. 800, 6 S. E. 138; Hewitt v. Craig, 
 86 Ky. 23, 5 S. W. 280. Where the submis- 
 sion requires the' concurrence of the three 
 arbitrators, recovery cannot be had where 
 but two sign, though the third says it is 
 right, but refuses to sign ; Weaver v. Powel, 
 148 Pa. 372, 23 Atl. 1070. See Arbitrator. 
 
 An award will be sustained by a liberal 
 construction, ut res magis valeat quant par- 
 ent; Dolph v. Clemens, 4 Wis. 181; Rolo- 
 son v. Carson, 8 Md. 208 ; Allen v. Hiller, 8 
 Ind. 310; Haywood v. Harmon, 17 111. 477; 
 Bemus v. Clark, 29 Pa. 251 ; [Reed Aw. 170. 
 
 Effect of. An award is a final and con- 
 elusive judgment between the parties on all 
 the matters referred by the submission; 
 Reizenstein v. Hahn, 107 N. C. 156, 12 S. E. 
 43; Leonard v. Reservoir Co., 113 Mass. 235; 
 Spencer v. Curtis, 57 Ind. 221 ; Ford v. Bur- 
 leigh, GO N. H. 27S ; Evars v. Kamphaus, 59 
 Pa. 379. It transfers property as much as 
 the verdict of a jury, and will prevent the 
 operation of the statute of limitations; 3 
 Bla. Com. 10 ; Hunt's Lessee v. Guilford, 1 
 Ohio 310; Jackson v. Gager, 5 Cow. (N. Y.) 
 383; Davis v. Havard, 15 S. & R. (Pa.) 1GG, 
 16 Am. Dec. 537. See Gray v. Reed, 65 Vt. 
 178, 2G Atl. 52(1. A parol award following a 
 parol submission will have the .same effect 
 as an agreement of the same form directly 
 between the parties; Houghton v. Houghton, 
 37 Me. 72 ; Wells v. Lain, 15 Wend. (N. Y.) 
 99; Goodell v. Raymond, 27 Vt. 241; Smith 
 v. Douglass, 16 111. 34; Smith v. Stewart. B 
 Ind. 220 ; Martin v. Chapman, 1 Ala. L'Ts ; 
 
 2 Coxe 369 ; Davy v. Faw, 7 Cra. (U. S.) 171, 
 
 3 L. Ed. 305. 
 
 The right of real property cannot thus 
 pass by mere award ; but no doubt an arbi- 
 trator may award a conveyance or release 
 of land and require deeds, and it will be a 
 breach of agreement and arbitration bond 
 to refuse compliance; and a court of equity 
 
 i will sometimes enforce this Uy; 8 
 
 Bast 15 ; Jones v. Mill < 
 L48; Calhoun's Lessee v. Dunning 
 (Pa.) 120, 1 L. Ed. 767; Akely v 
 
 >0; Smith v. Bullock. U 
 v. Addams, 15 Johns (X. Y.i 197 
 Gratz, 4 Bawle (Pa.) 411, 430; 
 . 11 Conn. 240; McNear v. 
 Me. 251; Jesse v. Cater, 28 Ala. 475 ; Mur- 
 ray v. Blackledgo, 71 N. O. 492; Glrdler v. 
 Carter, 47 N. II. 305. Where there I 
 troversy as to the claims embraced within a 
 mortgage, and the award merely flx< 
 amount due, it does not rest the Legal title 
 to the mortgaged property In the mortgagor; 
 Collier v. White, 97 Ala. 615, 12 South. 385. 
 
 Arbitrament and award may be regularly 
 pleaded at common law or equity to an 
 action concerning the same subject-matter, 
 and will bar the action; Brazil! v. Lsham, 
 12 N. Y. 9; Crooker v. Buck. 11 Me. 355. 
 To an action on the award at common law, 
 in general, nothing can be pleaded dehor* 
 the award ; not even fraud ; Owen v. Boer- 
 um, 23 Barb. (N. Y.) 187; Shepherd v. 
 Briggs, 28 Vt 81; Woodrow v. O'Conner, 
 id. 77(i; contra, Strong v. Strong, 9 Cush. 
 (Mass.) 500. Where an action has been re- 
 ferred under rule of court and the reference 
 fails, the action proceeds. 
 
 Enforcement of. An award may be en- 
 forced by an action at law, which is the 
 only remedy for disobedience when the sub- 
 mission is not made a rule of court, and no 
 statute provides a special mode of enforce- 
 ment; 5 B. & Aid. 507; 4 P.. & C. 103; 3 
 C. B. 745. Assumpsit lies when the submis- 
 sion is not under seal; Piersons v. Hobbes, 
 33 N. H. 27; and debt on an award of mon- 
 ey and on an arbitration bond : Nolte v. 
 Lowe, 18 111. 437; covenant where the sub- 
 mission is by deed for breach of any part of 
 the award, and case for the non-perform- 
 ance of the duty awarded. Equity will en- 
 force specific performance when all remedy 
 fails at common law; Com. l>ig. Ctiai 
 2 K; Story, EJq. Jur. § 1458; 2 Hare L98; 
 Bouck v. Wilber. 4 Johns. Ch. (N. Y.) 405; 
 Ballance v. Underbill, 3 Scam. (111.) 453; 3 
 P. Wins. 137. But see 1 T. & R. 187 : 5 Ves. 
 S46. An award must be sued upon only be- 
 cause the arbitrator is not vested with power 
 to enforce his decrees by execution, which is 
 the end of the law; Collins v. Oliver, 4 
 Humph. (Tenn.t 439. 
 
 An award under a rule of court may be 
 enforced by the court Issuing execution upon 
 it as if it were a verdict of a jury, or by 
 attachment for contempt: 7 East 607. By 
 the various state statutes regulating arbi- 
 trations, awards, where submission is made 
 before a magistrate, may be enforced and 
 judgment rendered thereon. 
 
 Amendment and setting aside. A court 
 has no power to alter or amend an award ; 
 Jackson v. Todd, 25 N. J. L. 130; Jarvis t.
 
 ARBITRATION AND AWARD 
 
 236 
 
 ARBITRATION AND AWARD 
 
 Water Co., 5 Cal. 179 ; Brazill v. Isham, 12 
 N. Y. 9; Crooker v. Buck, 41 Me. 355; Smith 
 v. Kron, 109 N. C. 103, 13 S. E. 839; but 
 may recommit to the referee in some cases ; 
 Swift v. Faris, 11 Tex. 18 ; 18 Can. S. C. R. 
 338. The court has no general supervisory 
 power />ver an award and, if arbitrators 
 keep within their jurisdiction, it will not 
 be set aside for error of judgment either of 
 law or facts, but it may for palpable error 
 of fact or miscalculation, of figures or of 
 law when it appears on its face; Fudickar 
 v. Ins. Co., G2 N. Y. 392. 
 
 "An arbitration partakes of judicial pro- 
 ceedings," and the award is regarded with 
 great respect by the courts as the decision 
 of persons chosen by the parties to settle 
 their differences; but it can hardly be con- 
 sidered of equal dignity with the judgment 
 of a court, which speaks by force and power 
 of the law ; while an award speaks by con- 
 sent and contract of the parties ; Shively v. 
 Knoblock, S Ind. App. 433, 35 N. E. 1028. A 
 court will not revise an award for mere errors 
 of judgment; Offut v. Proctor, 4 Bibb (Ky.) 
 252; Vaughn v. Graham, 11 Mo. 576; Ches- 
 ley v. Chesley, 10 N. H. 327; and miscon- 
 duct or misbehavior of arbitrators in a stat- 
 utory arbitration must be to do an inten- 
 tional wrong ; Smith v. Cutler, 10 Wend. 
 (N. Y.) 589, 25 Am. Dee. 5S0; Vaughn v. 
 Graham, 11 Mo. 576. 
 
 It is not essential to an arbitration that 
 it should adjust all matters in controversy ; 
 an award determining a single one of several 
 may be conclusive so far; Pearce v. Mc- 
 Intyre, 29 Mo. 423. 
 
 An award will not be disturbed except 
 for very cogent reasons. It will be set aside 
 for misconduct, corruption, or irregularity 
 of the arbitrator, which has or may have 
 injured one of the parties; 5 B. & Ad. 488; 
 Jenkins v. Liston, 13 Gratt. (Va.) 535; Payne 
 v. Metz, 14 Tex. 56; Walls v. Wilson, 28 Pa. 
 514; Cutting v. Carter, 29 Vt. 72; it will 
 not be set aside because one of the arbitra- 
 tors was a relative ; McGregor v. Sprott, 59 
 Hun 617, 13 N. Y. Supp. 191 ; so where one, 
 after publishing his award, admits that it 
 had been improperly obtained from him ; 
 [1891] 1 Ch. 55S; it will be set aside for 
 error in fact, or in attempting to follow the 
 law, apparent on the face of the award ; see 
 supra; Arbitrator ; for uncertainty or in- 
 consistency ; for an exceeding of his author- 
 ity by the arbitrator; Shearer v. Handy, 22 
 Pick. (Mass.) 417; Stewart v. Ahrenfeldt, 4 
 Denio (N. Y.) 191 ; where it is made solely 
 at the direction of one of the parties and not 
 upon the arbitrator's own judgment ; Hart- 
 ford Fire Ins. Co. v. Mercantile Co., 44 Fed. 
 151, 11 L. R. A. 623; when it is not final 
 and conclusive, without reserve ; when it is 
 a nullity ; when a party or witness has been 
 at fault, or has made a mistake; or when 
 the arbitrator acknowledges that he has 
 made a mistake or error in his decision. 
 
 Where arbitrators have once made an. 
 award they are functus officio and cannot 
 afterwards make a second award, though 
 the first was void because of defects ; Flan- 
 nery v. Sahagian, 134 N. Y. 85, 31 N. E. 319 ; 
 Herbst v. Hagenaers, 137 N. Y. 290, 33 N. E. 
 315. 
 
 Equity has jurisdiction to set aside an 
 award, on any of the enumerated grounds, 
 when the submission cannot be made a rule 
 of a common-law court. As to the circum- 
 stances under which awards may be ex- 
 amined in equity, see 1 Raithby's Vernon 
 158, note (1), where many English cases are 
 collected. 
 
 In general, in awards under statutory pro- 
 visions, as well as in those under rules of 
 court, questions of law may be reserved for 
 the opinion of the court, and facts and evi- 
 dence reported for their opinion and de- 
 cision. 
 
 ARBITRIUM (Lat). Decision; award; 
 judgment. 
 
 For some cases the law does not prescribe an ex- 
 act rule, but leaves them to the judgment of sound 
 men ; or in the language of Grotius, lex non exacte 
 definit, sed arbitrio boni viri permittit ; 1 Bla. Com. 
 61. The decision of an arbiter is arbitrium, as the 
 etymology indicates; and the word denotes, in the 
 passage cited, the decision of a man of good judg- 
 ment who is not controlled by technical rules of 
 law, but is at liberty to adapt the general princi- 
 ples of justice to the peculiar circumstances of the 
 case. 
 
 ARBOR (Lat). A tree; a plant; some- 
 thing larger than an herb; a general term 
 including vines, osiers, and even reeds. The 
 mast of a ship. Brissonius. Timber. Ains- 
 worth; Calvinus, Lex. 
 
 Arbor civilis. A genealogical tree. Coke, 
 Inst. 
 
 A common form of showing genealogies Is by 
 means of a tree representing the different branches 
 of the family. Many of the terms in the law of de- 
 scent are figurative, and derived hence. Such a tree 
 is called, also, arbor consanguinitatis. 
 
 ARCARIUS (Lat. area). A treasurer; 
 one who keeps the public money. Spelman, 
 Gloss. 
 
 ARCHAI0N0MIA. The name of a collec- 
 tion of Saxon laws published during the 
 reign of Queen Elizabeth, in the Saxon lan- 
 guage, with a Latin version by Lambard. 
 Dr. Wilkins enlarged this collection in his 
 work entitled Leges Anglo-Saxonicai, contain- 
 ing all the Saxon laws extant, together with 
 those ascribed to Edward the Confessor, in 
 Latin; those of William the Conqueror, in 
 Norman and Latin, and of Henry I., Ste- 
 phen, and Henry II., in Latin. 
 
 ARCHBISHOP. The chief of the clergy 
 of a whole province. 
 
 He has the inspection of the bishops of that prov- 
 ince, as well as of the inferior clergy, and may de- 
 prive them on notorious cause. The archbishop has 
 also his own diocese, In which he exercises episcopal 
 jurisdiction, as in his province he exercises archi- 
 episcopal authority; 1 Bla. Com. 380; 1 Ld. Raym. 
 541. In England he Is addressed as Most Reverend.
 
 ARCHDEACON 
 
 237 ARGUMENTUM AB INCONVENTENTI 
 
 ARCHDEACON. A ministerial officer sub- 
 ordinate to the bishop. 
 
 In the primitive church, the archdeacons were 
 employed by the bishop in the more servile duties of 
 collecting and distributing alms and offerings. 
 Afterwards they became, In effect, "eyes to the 
 overseers of the Church ;" Cowell. 
 
 His jurisdiction Is ecclesiastical, and immediately 
 subordinate to that of the bishop throughout the 
 whole or a part of the diocese. He is a ministerial 
 officer ; 1 Bla. Com. 383. He Is addressed as Ven- 
 erable. 
 
 ARCHDEACONS COURT. The lowest 
 court of ecclesiastical jurisdiction in Eng- 
 land. Originally the arc! aeon held a court 
 
 as deputy of the bishop. Early in the 12th 
 century the archdeacons possessed them- 
 selves of a customary jurisdiction. An ap- 
 peal lay to the Consistory Court. Rept. Eccl. 
 Com. (18S3) 25. 
 
 ARCHES COURT. See Court of Arches. 
 
 ARCHIVES. The Rolls; any place where 
 ancient records, charters, and evidences are 
 kept. In libraries, the private depositary. 
 Cowell ; Spelman, Gloss. 
 
 The records need not be ancient to constitute the 
 place of keeping them the Archives. 
 
 ARCHIVIST. One to whose care the 
 archives have been confided. 
 
 ARCTA ET SALVA CUSTODIA (Lat). 
 In safe and close custody or keeping. 
 
 When a defendant is arrested on a capias ad sat- 
 isfaciendum (ca. sa.), he Is to be kept in arcta et 
 salva custodia; 3 Bla. Com. 415. 
 
 AREA. An enclosed yard or opening in 
 a house ; an open place adjoining to a house. 
 1 Chit. Pr. 176. 
 
 ARENTARE (Lat). To rent; to let out 
 at a certain rent. Cowell. 
 Arentatio. A renting. 
 
 ARGENTARII (Lat. argentum) . Money- 
 lenders. 
 
 Called, also, nummularii (from nummus, coin) 
 tnensarii (lenders by the month). They were so 
 called whether living in Rome or in the country 
 towns, and had their shops or tables in the forum. 
 Argentarius is the singular. Argent avium denotes 
 the Instrument of the loan, approaching in sense to 
 our note or bond. 
 
 Argentarius miles was the porter who car- 
 ried the money from the lower to the upper 
 treasury to be tested. Spelman, Gloss. 
 
 ARGENTUM ALBUM (Lat). Unstamped 
 silver; bullion. Spelman, Gloss.; Cowell. 
 
 ARGENTUM DEI (Lat). God's money; 
 God's penny ; money given as earnest in 
 making a bargain. Cowell. 
 
 ARGUMENT. An effort to establish belief 
 by a course of reasoning. 
 
 See 33 Amer. L. Rev. 476; State v. Burns, 
 119 Iowa, 063, 94 N. W. 239; Hopkins v. 
 Hopkins, 132 N. C. 25, 43 S. E. 506. 
 
 ARGUMENTATIVE. By way ot reason- 
 ing. 
 
 A plea must be (among other things) direct and 
 positive, and not argumentative; 3 Bla. Com. 30S; 
 Steph. PI. Andrew's ed. § 201. 
 
 ARGUMENTUM AB I NC N V E N ! ENTI. 
 An argument arising from the lnco 
 which the opposite construction of th 
 would create. 
 
 It is to have effect only In a case where the law 
 Is doubtful: where the law Is certain, such an 
 argument is of no force. Bacon, Abr. Baron and 
 feme 11. 
 
 ARIBANNUM. A fine for not setting out 
 to join the army in obedience to the sum- 
 mons of the king. 
 
 ARIMANNI (Lat.). The : is of lands 
 
 holdeu or derived from their Lords. Clients 
 joined to some lord for protection. By some, 
 said to be soldiers holding lands from a lord ; 
 but the term is also applied to women and 
 slaves. Spelman, Gloss. 
 
 ARISE. To come into existence or action. 
 A case arising in the land or naval forces la 
 a case proceeding, issuing or* springing from 
 
 ads, in violation of the laws and regulations, 
 committed while in the forces or service. Iu 
 re Bogart, 2 Sawy. 396, Fed. Cas. No. 1,596. 
 
 ARISTOCRACY. A government in which 
 a class of men rules supreme. 
 
 Aristotle classified governments according to the 
 person or persons in whom the supreme power is 
 vested: in monarchies or kingdoms, in which one 
 rules supreme ; in aristocracies, in which a class of 
 men rules supreme ; and in democracies, in which 
 the people at large, the multitude, rule. The term 
 aristocracy is derived from the Greek word apiaroe, 
 which, although finally treated as the superlative of 
 aya06g f good, originally meant the strongest, the 
 most powerful; and in the compound term aristoc- 
 racy it meant those who wielded the greatest power 
 and had the greatest influence,— the privileged ones. 
 The aristocracies in ancient Greece were, in many 
 cases, governments arrogated by violence. If the 
 number of ruling aristocrats was very small, the 
 government was called an oligarchy. Aristotle says 
 that in democracies the "demagogues lead the people 
 to place themselves above the laws, and divide the 
 people, by constantly speaking against the rich; and 
 in oligarchies the rulers always speak in the interest 
 of the rich. At present," he says, "the rulers, in 
 some oligarchies, take an oath, 'And I will be hostile 
 to the people, and advise, as much as is in my pow- 
 er, what may be injurious to them.' " (Politics, v. 
 ch. 9.) There are circumstances which may make an 
 aristocracy unavoidable; but it has always this in- 
 herent deficiency, that the body of aristocrats, being 
 set apart from the people indeed, yet not sufficiently 
 so, as the monarch is (who, besides, being but one, 
 must needs rely on the classes beneath him), shows 
 itself severe and harsh so soon as the people become 
 a substantial portion of the community. The strug- 
 gle between the aristocratic and the democratic ele- 
 ment is a prominent feature of the middle ages ; 
 and at a later period it is equally remarkable that 
 the crown, in almost every country of the European 
 continent, waged war, generally with the assistance 
 of the commonalty, with the privileged class, or ar- 
 istocracy. The real aristocracy Is that type of gov- 
 ernment which has nearly entirely vanished from 
 our cis-Caucasian race ; although the aristocratic 
 element is found, like the democratic element, in 
 various degrees, in most of the existing govern- 
 ments. The term aristocracy Is at present fre- 
 quently used for the body of privileged persons in 
 the government of any institution,— for instance, in 
 the church. In the first French Revolution, Aristo- 
 crat came to mean any person not belonging to the 
 levellers, and whom the latter desired to pull down. 
 The modern French communists use the slang term 
 Aristo for aristocrat. The most complete and con- 
 sistently developed aristocracy in history was the
 
 ARISTOCRACY 
 
 238 
 
 ARM OF THE SEA 
 
 Republic of Venice,— a government considered by 
 many early publicists as a model: it illustrated, 
 however, in an eminent degree, the fear and conse- 
 quent severity inherent in aristocracies. See Gov- 
 ernment; Absolutism; Monarchy. 
 
 ARISTO-DEMOCRACY. A form of gov- 
 ernment where the power is divided be- 
 tween the more powerful men of the nation 
 %nd the people. 
 
 ARIZONA. One of the states of the Ameri- 
 can Union. 
 
 This region was first visited by the Spanish in 
 1526, and was afterwards explored under the direc- 
 tion of the viceroy of Mexico in 1540; nothing was 
 done, however, towards settling the country until 
 the year 15S0, when a military post was established 
 by the Spanish on the site of the present city of 
 Tucson. Under the untiring efforts of the Jesuits, 
 an unbroken line of settlements sprung up from 
 Tucson to the Sonora line, the northern boundary 
 of Mexico, a distance of about one hundred miles ; 
 but owing to the frequent attacks of the Indians, 
 and the Mexican revolution of 1821, these settlements 
 were abandoned. The first United States settlers 
 were persons on their way to California in 1849. 
 The United States acquired, by the treaty of Gua- 
 dalupe Hidalgo, Feb. 2, 1848, a large extent of coun- 
 try from Mexico, including California and the ad- 
 jacent territories, and by the Gadsden purchase, 
 Dec. 30, 1853, another large tract south of the for- 
 mer. Until 1863, the territory of New Mexico in- 
 cluded Arizona and also about 12,225 acres,, which 
 were detached and included in Nevada. Arizona 
 was organized as a separate territory by the act of 
 congress of Feb. 24, 1863, U. S. Stat, at Large, 664. 
 By this act, the territory embraced "all that part 
 of the territory of New Mexico situated west of a 
 line running due south, from the point where the 
 southwest corner of the territory of Colorado joins 
 the northern boundary of the territory of New Mex- 
 ico, to the southern boundary of the territory of 
 New Mexico." The frame of government was sub- 
 stantially the same as that of New Mexico, and the 
 laws of New Mexico were substantially extended to 
 Arizona. 
 
 The Enabling Act for its admission to the Union 
 was passed by Congress June 20, 1910. On August 
 21, 1911, the joint resolution of Congress for its ad- 
 mission was passed, to take effect upon Proclama- 
 tion by the President that certain conditions had 
 been complied with. The Proclamation was made 
 February 14, 1912. Arizona became a state and 
 adopted the constitution proposed for it by the con- 
 stitutional convention held in the fall of 1910. The 
 constitution was amended in 1912 by providing for 
 the recall of public officers and granting to each 
 municipal corporation within the state the right to 
 engage in industrial pursuits, and providing for 
 woman suffrage. 
 
 ARKANSAS. One of the United States of 
 America ; being the twelfth admitted to the 
 Union. 
 
 It was formed of a part of the Louisiana Territory, 
 purchased of France by the United States, by treaty 
 of April 30, 1803, and from that time until 1812 it 
 formed part of the Louisiana Territory; from 1812 
 to 1819 it was part of the Missouri Territory. By 
 act of congress of March 2, 1819, a separate terri- 
 torial government was established for Arkansas; 
 3 Stat. L. 493. It was admitted to the Union by act 
 of congress of June, 1836, and the first constitution 
 of the state was adopted on the 30th January, 1836. 
 Section 16, article 5, amended February 10, 1913, 
 which provides for a sixty day session of Legisla- 
 ture ; section 1, article 5, amended, providing for 
 the initiative and referendum, February 19, 1909. 
 
 ARLES. Earnest. 
 
 Used in Yorkshire in the phrase Aries-penny. 
 Cowell. In Scotland it has the same signification. 
 Bell, Diet. See Earnest. 
 
 ARM OF THE SEA. A portion of the sea 
 projecting inland, in which the tide ebbs and 
 Hows. 
 
 It includes bays, roads, creeks, coves, 
 ports, and rivers where the water flows and 
 reflows. An arm of the sea is considered as 
 extending as far into the interior of a coun- 
 try as the water of fresh rivers is propelled 
 backward by the tide; Ang. Tide Wat. (2d 
 ed.) 73; Peyroux v. Howard, 7 Pet. (U. S.) 
 324, 8 L. Ed. 700 ; 2 Dougl. 441 ; G CI. & F. 
 G28; Tinicum Fishing Co. v. Cart, 61 Pa. 21, 
 100 Am. Dec. 597; Olc. Adm. 18. Arms of 
 the sea, so closely embraced by land that a 
 man standing on one shore can reasonably 
 discern with the naked eye objects and what 
 is done on the opposite shore, are within 
 county limits ; Bish. Cr. L. § 146 ; 2 East, P. 
 C. 805; Russ. & R. 243. Lord Coke said 
 (Owen 122) that the admiral has no juris- 
 diction when a man may see from one side 
 to another. This was followed by Cockburn, 
 C. J., in L. R. 2 Ex. 164, 168. See Creek; 
 Navigable Waters; River; Sea; Fauces 
 Terr^e ; Territorial Waters ; Admiralty. 
 
 ARMED. Furnished with weapons of 
 offence or defence ; furnished with the means 
 of security or protection. Webster's Diet. 
 
 The fact that there was on board a vessel 
 but one musket, a few ounces of powder, 
 and a few balls, would not make her an 
 armed vessel ; Murray v. The Charming Bet- 
 sy, 2 Cra. (U. S.) 121, 2 L. Ed. 208. 
 
 ARMED NEUTRALITY. An attitude of 
 neutrality between belligerents which the 
 neutral state is prepared to maintain by 
 armed force if necessary. 
 
 ARMED PEACE. A situation in which 
 two or more nations, while actually at peace 
 with each other, are armed for possible or 
 probable hostilities. 
 
 ARMIGER (Lat). An armor-bearer; an 
 esquire. A title of dignity belonging to gen- 
 tlemen authorized to bear arms. Kennett, 
 Paroch. Antiq. ; Cowell. 
 
 In its earlier meaning, a servant who car- 
 ried the arms of a knight. Spelman, Gloss. 
 
 A tenant by scutage ; a servant or valet ; 
 applied, also to the higher servants in con- 
 vents. Spelman, Gloss ; Wishaw. 
 
 ARMISTICE. An agreement between bel- 
 ligerent forces for a temporary cessation of 
 hostilities. The condition of war between 
 the parties continues in all other respects 
 and produces its usual legal effects. 
 
 An armistice differs from a mere "suspen- 
 sion of arms" (q. v.) in that the latter is 
 concluded for very brief periods and for local 
 military purposes only, whereas an armistice 
 not only covers a longer period, but is 
 agreed upon for political purposes. It is 
 said to be general if it relates to the whole 
 area of the war, and partial if it relates to 
 only a portion of that area. Partial armis- 
 tices are sometimes called truces (q. v.) but
 
 ARMISTICE 
 
 239 
 
 ARMS 
 
 there is no hard and fast distinction be- 
 tween armistices and truces. Arts. 36-41 of 
 IV Hague Conf. 1907 lay down certain in- 
 ternational rules on the subject of armistic- 
 es, their duration, their general or local 
 character, the necessary notification, and the 
 consequences of a violation of the armistice. 
 As these rules do not cover the whole field, 
 they need to be supplemented by customary 
 law. 2 Opp. 290-L". in. 
 
 ARMS. Anything that a man wears for 
 his defence, or tikes in his bands, or uses 
 in his anger, to east at or strike at another. 
 Co. Litt L616, 162 a; Crump. Just P. 65; 
 Cunning, Diet. 
 
 The constitution of the United States, 
 Amend, art 2, declares that, "a well-regulat- 
 ed militia being necessary to the security of 
 a free state, the right of the people to keep 
 and bear arms shall not be infringed." This 
 is said to be not a righl granted by the con- 
 stitution, and not dependent upon that in- 
 strument for its existence. The amendment 
 means no more than that this right shall not 
 be infringed by congress ; it restricts the 
 powers of the national government, leaving 
 all matters of police regulations, for the pro- 
 tection of the people, to the states; U. S. v. 
 Cruiksbank, 02 U. S. 553, 23 L. Ed. 588. 
 
 An act forbidding the carrying of pistols, 
 dirks, etc., is not repugnant to this article ; 
 the "arms" referred to are the arms of a 
 soldier, etc. ; English v. State, 35 Tex. 473, 
 14 Am. Rep. 374. A statute prohibiting the 
 wearing of concealed deadly weapons is con- 
 stitutional ; Wright v. Com., 77 Pa. 470; An- 
 drews v. State, 3 Heisk. (Term.) 105, 8 Am. 
 Rep. 8; Hill v. State, 53 Ga. 472; Fife v. 
 State, 31 Ark. 455, 25 Am. Rep. 556; Walls 
 v. State, 7 Blackf. (Ind.) 572; Owen v. 
 State, 31 Ala. 387; contra, Bliss v. Com., 2 
 Litt. (Ky.) 90, 13 Am. Dec. 251. See Story, 
 Const. 5th ed. § 1895; Rawle, Const 125. 
 
 A provision in a state bill of rights that 
 "the people have a right to bear arms for 
 their defense and security" is a limitation 
 on legislative power to enact laws prohibit- 
 ing the bearing of arms in the militia, or 
 any other military organization provided for 
 by law, but it is not a limitation on legisla- 
 tive power to prohibit and punish the pro- 
 miscuous carrying of arms or other deadly 
 weapons; City of Salina v. Blaksley, Tl 
 Kan. 230, S3 Pac. G19, 3 L. R. A. (N. S.) 108, 
 115 Am. St Rep. 190. This right is not vio- 
 lated by a statute prohibiting unauthorized 
 bodies of men to associate together as a mil- 
 itary organization, or to drill and parade 
 with arms in cities and towns ; Com. v. 
 Murphy, 1GG xMass. 171, 44 N. E. 138, 32 L. 
 R. A. 600. 
 
 One who carries a pistol concealed in a 
 satchel supported and carried by a strap 
 over his shoulder, is guilty of carrying a 
 concealed weapon about bis person, although 
 the satchel is locked and the key is in his 
 
 pocket; Warren v. State, 94 Ala. 79. 10 
 South. 838; Boles v. State, SO Gi 
 S. E. 361. The fact that one carr 
 cealed weapon for the purpose of 
 does not excuse his act; State v. Dis in, 114 
 N. I . 850, 19 s. K. 364; nor does the fact 
 that be has repaired it and is retun 
 in bis pocket; Strahan v. Stal 
 347, 8 South. 844: contra, State v. I: 
 39 Mo. App. 47. The carrying of a pistol in 
 the pocket for target practice does not con- 
 stitute the offence of carrying a con 
 weapon; State v. Murray, 39 Mo. App. 127. 
 See Dangerous Wkapoit; Weapow. 
 
 Signs of arms, or drawings, painted on 
 shields, banners, and the like. Heraldic 
 I efl rings. 
 
 The arms of the United States are de- 
 scribed in the resolution of congress of June 
 20, 17S2. 
 
 ARMY. A large force of armed men de- 
 signed and organized for military service on 
 land. 
 
 The term "army" or "armies" has never 
 been used by congress to include the navy or 
 marines; In re Bailey, 2 Sawy. 205, Fed. 
 Oas. No. 728. 
 
 See Articles of War ; Military Law ; Mar- 
 tial Law; Courts-Martial; Rank; Regu- 
 lations. 
 
 ARPENNUS. A measure of land of un- 
 certain amount. It was called arpent also. 
 Spelman, Gloss. ; Cowell. 
 
 In French Law. A measure of different 
 amount in each of the sixty-four provinces. 
 Guyot, Repert. Arpcnteur. 
 
 The measure was adopted in Louisiana; 
 Strother v. Lucas, 6 Pet. (U. S.) 763, 8 L. 
 Ed. 573. 
 
 ARPENT. A quantity of land containing 
 a French acre. 4 Hall, L. J. 518. 
 
 ARPENTATOR. A measurer or surveyor 
 of land. 
 
 ARRA. See Arrh.e. 
 
 ARRAIGN. To call a prisoner to the bar 
 of the court to answer the matter charged 
 in the indictment. 2 Hale, PL Cr. 216. To 
 sot In order. An assize may l>e arraigned. 
 Littleton, § 242; 3 Mod. 27.".; Termes dc la 
 /.' u ; Cowell. 
 
 ARRAIGNMENT. Calling the defendant 
 
 to the bar of the court, to answer the accu- 
 sation contained in the indictment. 
 The first step in the proceeding consists 
 
 in calling the defendant to the bar by his 
 name, and commanding him to hold up his 
 hand. 
 
 This Is done for the purpose of completely Iden- 
 tifying the prisoner as the person named in the 
 indictment. The holding up his hand is not, how- 
 ever, Indispensable ; for if the prisoner should re- 
 fuse to do so, he may be identified by any admission 
 that he is the person Intended ; 1 W. Bla. 33. See 
 Archb. Cr. PI. 128.
 
 ARRAIGNMENT 
 
 240 
 
 ARRANGEMENT 
 
 The second step is the reading the indict- 
 ment to the accused person. 
 
 This is done to enable him fully to understand the 
 charge to be produced against him. The mode in 
 which it is read is, after saying, "A B, hold up your 
 hand," to proceed, "you stand indicted by the name 
 of A B, late of, etc., for that you, on, etc.," and 
 then go through the whole of the indictment. 
 
 The third step is to ask the prisoner, 
 "How say you (A B), are you guilty, or not 
 guilty? " 
 
 Upon this, if the prisoner confesses the charge, 
 and it appears to the satisfaction of the judge that 
 hi.' rightly comprehends the effect of his plea, the 
 confession is recorded, and nothing further is done 
 till judgment. If, on the contrary, he answers, 
 "Not guilty," that plea is entered for him, and the 
 clerk or attorney-general replies that he is guilty; 
 when an issue is formed; Com. v. Battis, 1 Mass. 
 95 ; se»e 4 Bla. Com. c. xxv. The holding up of the 
 hand iu no longer obligatory in England, though 
 still maintained in some of the United States with 
 the qualification that if the defendant refuses to 
 hold up his hand, but confesses that he is the per- 
 son named, it is enough; Whart. Cr. PI. & Pr. (9th 
 ed.) § C99. In cases where arraignment of the de- 
 fendant is required, a failure to arraign is fatal; 
 Graeter v. State, 54 Ind. 159 ; Grigg v. People, 31 
 Mich. 471; Anderson v'. State, 3 Pinn. (Wis.) 367; 
 Smith v. Suite, 1 Tex. App. 40S; People v. Gaines, 
 52 Cal. 480. See, contra, State v. Cassady, 12 Kan. 
 550. In cases of a mistrial (Hayes v. State, 58 Ga. 
 35), or removal to another court (Davis v. State, 39 
 Md. 355), there need not be a fresh arraignment. 
 
 If the defendant, when called upon, makes no an- 
 swer, and it is a matter of doubt whether or not he 
 is mute of malice, the court may direct a jury to be 
 forthwith impanelled and sworn, to try whether the 
 prisoner is mute of malice or ex visitatione Dei; 
 and such jury may consist of any twelve men who 
 may happen to be present. If a person is found to 
 be mxite ex visitatione Dei, the court in its discre- 
 tion will use such means as may be sufficient to en- 
 able the defendant to understand the charge and 
 make his answer; and if this is found impracti- 
 cable, a plea of not guilty will be entered, and the 
 trial proceed. But if the jury return a verdict that 
 he is mute fraudulently and willfully, the court will 
 pass sentence as upon a conviction; Ellenwood v. 
 Com., 10 Mete. (Mass.) 222; Archb. Cr. PI. 129; 
 3 C. & K. 121 ; Rose. Cr. Ev. (8th ed.) 199. See the 
 case of a deaf person who could not be induced to 
 plead; 1 Leach, Cr. Cas. 451; of a person deaf and 
 dumb; id. 102; Com. v. Hill, 14 Mass. 207; 7 C. 
 & P. 503 ; 6 Cox, Cr. Cas. 386 ; 3 C. & K. 328 ; State 
 v. Draper, 1 Houst. Del. Cr. Cas. 291. See Deaf 
 and Dumb ; Guilty ; God and My Country ; 
 Mute ; Peine Forte et Dure. 
 
 ARRAMEUR. An ancient officer of a port, 
 whose business was to load and unload ves- 
 sels. 
 
 There were formerly, in several ports of Guyenne, 
 certain officers, called arrameurs, or stowers, who 
 were master-carpenters and were paid by the mer- 
 chants, who loaded the ship. Their business was 
 to dispose properly, and stow closely, all goods in 
 casks, bales, boxes, bundles, or otherwise ; to bal- 
 ance both sides, to fill up the vacant spaces, and 
 arrange everything to the best advantage. It was 
 not but that the greatest part of the ship's crew 
 understood this as well as these stowers, but they 
 would not meddle with it, nor undertake it, to 
 avoid falling under the merchant's displeasure, or 
 being accountable for any ill accident that might 
 happen by that means. There were also sacquiers, 
 who were very ancient officers, as may be seen in 
 the Theodosian code, Unica de Scaccariis Partus 
 Romce, lib. 14. Their business was to load and un- 
 load vessels loaded with salt, corn, or fish, to pre- 
 vent the ship's crew defrauding the merchant by 
 false tale, or cheating him of his merchandise other- 
 wise; Laws of Oleron, in 1 Pet. Adm. App. xxv. 
 See Stevedore. 
 
 ARRANGEMENT. The natural meaning 
 of the word is "setting in order." 1 El. & 
 Bl. 540. 
 
 ARRANGEMENT, DEED OF. A term 
 used in England to express an assignment 
 for the benefit of creditors. 
 
 ARRAS. In Spanish Law. The donation 
 which the husband makes to his wife, by 
 reason or on account of marriage, and in 
 consideration of the dote, or portion, which 
 he receives from her. Aso & Man. Inst. b. 
 1, t. 7, c. 3. 
 
 The property contributed by the husband 
 ad sustinenda onera matrimonii (for bear- 
 ing the expenses). 
 
 The husband is under no obligation to give arras ; 
 but it is a donation purely voluntary. He is not 
 permitted to give in arras more than a tenth of his 
 property. The arras is the exclusive property of 
 the wife, subject to the husband's usufruct during 
 his life; Burge, Confi. Laws 417. 
 
 ARRAY. The whole body of jurors sum- 
 moned to attend a court, as they are array- 
 ed or arranged on the panel. See Challeng- 
 es ; Dane, Abr. Index; 1 Chit. Cr. Law 536; 
 Comyns, Dig. Challenge, B. 
 
 ARRAY ER. An English military officer 
 in the early part of the fifteenth century. 
 His duties were similar to those of the mod- 
 ern Lord Lieutenant of a county. 
 
 ARREARAGES. Arrears. 
 
 ARREARS. The remainder of an account 
 or sum of money in the hands of an account- 
 ant. Any money due and unpaid at a given 
 time. Cowell ; Spelman, Gloss. 
 
 "In arrear" means overdue and unpaid. 
 Hollingsworth v. Willis, 64 Miss. 157, 8 
 South. 170. 
 
 ARREST. To deprive a person of his lib- 
 erty by legal authority. 
 
 The taking, seizing or detaining the person 
 of another, touching or putting hands upon 
 him in the execution of process, or any act 
 indicating an intention to arrest. U. S. v. 
 Benner, Bald. 234, 239, Fed. Cas. No. 14,568. 
 
 "A restraint of the person, a restriction of 
 the right of locomotion which cannot be im- 
 plied in the mere notification, or summons 
 on petition, or any other service of such pro- 
 cess, by which no bail is required nor re- 
 straint of personal liberty." Hart v. Flynn's 
 Ex'r, 8 Dana (Ky.) 190. "An arrest is an 
 imprisonment." Blight v. Meeker, 7 N. J. 
 L. 97. The term implies restraint of liberty 
 by an officer of the law, but touching the 
 person is not necessary unless required to 
 acquire control of the person of the one ar- 
 rested. State v. Buxton, 102 N. C. 129, 8 
 S. E. 774; McAleer v. Good, 216 Pa. 473, 65 
 Atl. 934, 10 L. R. A. (N. S.) 303, 116 Am. 
 St. Rep. 782; Butler v. Washburn, 25 N. H. 
 251; Bissell v. Gold, 1 Wend. (N. Y.) 210, 19 
 Am. Dec. 480; 5 U. C. Q. B. 341; Strout v. 
 Gooch, 8 Me. 126; 4 C. B. N. S. 180, 205, 
 where the subject is examined by Willes, J., 
 who expressly dissents from Sir James
 
 ARREST 
 
 241 
 
 ARREST 
 
 Mansfield In 2 B. & P. N. R. 211, the authori- 
 ty usually relied upon contra. What is ac- 
 tually required is more tersely expressed in 
 Lawson v. Buzines, 3 Harr. (Del.) 41G, when 
 he says that the officer "must make him his 
 prisoner in an unequivocal form." 
 
 As ordinarily used, the terms arrest and attach- 
 ment coincide in meaning to some extent; though 
 In strictness, as a distinction, an arrest may be said 
 to be the act resulting from the service of an at- 
 tachment. And In the more extended sense which 
 is sometimes given to attachment, including the act 
 of taking, it would seem to differ from arrest in that 
 it is more peculiarly applicable to a taking of prop- 
 erty, while arrest is more commonly used in speak- 
 ing of persons. 
 
 The terms are, however, often interchanged when 
 speaking of the taking a man by virtue of legal au- 
 thority. Arrest is also applied in some Instances to 
 a seizure and detention of personal chattels, espe- 
 cially of ships and vessels; but this use of the term 
 is not common in modern law. 
 
 In Civil Practice. The apprehension of a 
 person by virtue of a lawful authority to 
 answer the demand against him in a civil 
 action. Gentry v. Griffith, 27 Tex. 4G2. 
 
 One of the means which the law gives the 
 creditor to secure the person of his debtor 
 while the suit is pending, or to compel him 
 to give security for his appearance after 
 judgment La. Civ. Code art. 211. 
 
 Acts which amount to a taking into cus- 
 tody are necessary to constitute an arrest; 
 but there need be no actual force or manual 
 touching the body: it is enough if the party 
 be within the power of the officer and sub- 
 mit to the arrest ; Cas. temp. Hardw. 301 ; 
 5 B. & P. 211 ; Huntington v. Blaisdell, 2 
 N. H. 318; Hart v. Flynn's Ex'r, 8 Dana 
 (Ky.) 190; Strout v. Gooch, 8 Me. 127; Bis- 
 sel v. Gold, 1 Wend. (N. Y.) 215, 19 Am. 
 Dec. 480; Field v. Ireland, 21 Ala. 240; 
 Courtoy v. Dozier, 20 Ga. 3G9; Cooper v. 
 Adams, 2 Blackf. (Ind.) 294; but mere 
 words without submission are not sufficient; 
 2 Hale, PI. Cr. 129; Jones v. Jones, 35 N. C. 
 448; State v. Buxton, 102 N. C. 129, 8 S. 
 E. 774. 
 
 Whom to be made by. It must be made 
 by an officer having proper authority. This 
 is, in the United States, the sheriff, or one 
 of his deputies, general or special, or by a 
 mere assistant of the officer, if he be so near 
 as to be considered as acting, though he do 
 not actually make the arrest ; Cowp. G5. 
 -The process of the. United States courts is 
 executed by a marshal. As to the power of 
 the sergeant-at-arms of a legislative body 
 to arrest for contempt or other cause, see 1 
 Kent 236. An order of the United States 
 House of Representatives declaring a wit- 
 ness before one of its committees in con- 
 tempt for not answering certain questions, 
 and ordering his arrest and imprisonment 
 is void and affords no defence to the ser- 
 geant-at-arms in an action for false impris- 
 onment against him; Kilbourn v. Thompson, 
 103 U. S. 168, 26 L. Ed. 377, where there is 
 a full reriew of the cases. 
 
 Who is liable to. All persons found with- 
 Bouv.— 16 
 
 in the jurisdiction are liable to arrest, ex- 
 cepting certain specified classes, including 
 ambassadors and their servants; 1 B. 
 554; :; 1>. & R. 25, 833; Ilolbrook, Nelson & 
 Co. v. Henderson, 4 Sandf. (N. 5 
 attorneys at laic; barristers attending e>>urt 
 or on circuit; 1 II. III.,. mo v . 
 
 Lewis, 19 Ga. 608; 8 Sim. :;77; 16 V. 3 . 412; 
 
 v. Bell, 18 Johns. (N. v 
 tending court as such; 1 H. Bla. 6 
 Manic & s. 638; bankrupts until the th 
 surrender is passed, and under B 
 circumstances; 8 Term 47.".. .".:}; in re Kim- 
 hail, 2 Ben. 3S, Fed. Cas. No. 7.707 ; bishops 
 (but not in U. 8.) : consuls-general; 9 
 447; though doubtful, and tiie privilege does 
 not extend to consuls; 1 Taunt. 10G; :; Maule 
 & S. 284; McKay v. Garcia, 6 Ben 556 
 Cas. No. 8,844; clergymen in England while 
 performing divine service; Bacon. Abr. Tres- 
 pass; 24 & 25 Vict. c. 100 (which extended 
 the provisions of 9 Geo. IV. c. 31, S - 
 as to include ministers not of the Establish- 
 ed Church) ; electors attending a public elec- 
 tion; Swift v. Chamberlain. 3 Conn. -">:;7; 
 executors sued on the testator's liability; 
 heirs sued as such; hundrcdors sued .as 
 such; insolvent debtors lawfully discharged; 
 3 Maule & S. 595; and see 4 Taunt. 631; 
 Duncan v. Klinefelter, 5 Watts (Pa.) 141, 
 30 Am. Dec. 295; Wilmarth v. Burt. 7 Mete. 
 (Mass.) 257; not when sued on subsequent 
 liabilities or promises, 6, Taunt. 
 Glazier v. Stafford, 4 Harr. (Del.) 240; Irish 
 peers; stat. 39 & 40 Geo. III. c. 67, § 4; 
 judges on process from their owu court; 
 Tracy v. Whipple, 8 Johns. (X. Y. i 381; 
 Gratz v. Wilson, 6 N. J. L. 419; marshal of 
 the King's Bench; members of congress and 
 state legislatures while attending the r< 
 tive assemblies to which they belong; U. S. 
 v. Cooper, 4 Dall. (Pa.) 341, Fed. Caa No. 
 14,861, 1 L. Ed. 859; King v. Coit. : 
 (Conn.) 133; Gibbes v. Mitchell. 2 Bay (S. 
 C.) 406; McPherson v. Nesmith, 3 Gratt. 
 (Va.) 237; Lewis v. Elmendorf. 2 Johns. 
 Cas. (N. Y.) 222; Hoppiu v. Jenekes, S R. 
 I. 453, 5 Am. Rep. 597 (but the exemption 
 does not apply while a member of Congress 
 is in his state on private business with leave 
 of absence; Worth v. Norton, 56 S. C. 56, :':'• 
 S. E. 792, 45 L. R. A. 5G.-.. 76 Am. St. Rep. 
 524; nor does it give a privilege from sei .- 
 ice of summons in a civil action ; Rhodes v. 
 Walsh, .".-, Minn. 542, 57 X. W. 212. 2:: L. R. 
 A. 632; Gentry v. Griffith, 27 Tex. 461 i ; mili- 
 tiamen while engaged in the performance of 
 military duty; officers of the army and mili- 
 tia, to some extent; 4 Taunt. 557; but see 8 
 Term 105; Morgan v. Eckart, 1 Dall. (U. S.) 
 295, 1 L. Ed. 144; White v. Lowther, 3 Ga. 
 397; Ex parte McRoberts, 16 la. 600; Peo- 
 ple v. Campbell, 40 N. Y. 133; parties to a 
 suit attending court; 11 East 439; Coxe 142: 
 Richards v. Goodson, 2 Va. Cas. 3S1 ; Hurst's 
 Case, 4 Dall. (U. S.) 387, 1 L. Ed. 878: Ex 
 parte McNeil, 6 Mass. 245; id., 264; Wilson
 
 ARREST 
 
 242 
 
 ARREST 
 
 v. Nettleton, 12 111. 61; Sadler v. Ray, 5 
 Rich. (S. C.) 523; including a court of in- 
 solvency; 2 Marsh. 57; Taunt. 336; 1 V. 
 
 6 B. 316; Wood v. Neale, 5 Gray (Mass.) 
 538 ; or a reference ; Vincent y. Watson, 1 
 Rich. (S. C.) 194; the former president of 
 a foreign republic while residing in one of 
 the U. S.; Hatch v. Baez, 7 Hun (N. Y.) 
 596; but a party arrested on a criminal 
 charge, and discharged on bail, may be ar- 
 rested on civil process before he leaves the 
 court room ; Moore v. Green, 73 N. C. 394, 
 21 Am. Rep. 470; soldiers; White v. Lowther, 
 3 Ga. .°>D7; sovereigns, including, undoubtedly, 
 governors of the states; the Warden of the 
 Fleet; witnesses attending a judicial tribu- 
 nal ; 3 B. & Aid. 252 ; Bowes v. Tuckennan, 
 
 7 Johns. (N. Y.) 538; In re Dickenson, 3 
 Harr. (Del.) 517; by legal compulsion; Ex 
 parte McNeil, 6 Mass. 264; U. S. v. Edme, 
 9 S. & R. (Pa.) 147; Page v. Randall, 6 Cal. 
 32; Sanford v. Chase, 3 Cow. (N. Y.) 381; 
 women; O'Boyle v. Brown, Wright (Ohio) 
 465; Wheeler v. Hartwell, 17 N. Y. Super. 
 Ct. 684; but see Eypert v. Bolenius, 2 Abb. 
 N. C. 193; Blight v. Meeker, 7 N. J. L. 97; 
 and perhaps other classes, under local stat- 
 utes; married women, on suits arising from 
 contracts; 1 Term 486; 6 id. 451; 7 Taunt. 
 55 ; but the privilege may be forfeited by her 
 conduct; 1 B. & P. 8; 5 id. 380; and the 
 grounds of these early decisions are neces- 
 sarily affected by the modern statutes per- 
 mitting married women to contract and sue 
 and be sued as if sole, but although the 
 Pennsylvania act of 1887 in section 2 author- 
 izes her so to be sued on her contract and 
 for all torts, it has been held that a married 
 woman is notwithstanding that section priv- 
 ileged from arrest under a capias; Lorenz v. 
 Betz, 2 W. N. C. (Pa.) 274. Reference must 
 be had in many of the above cases to stat- 
 utes for modifications of the privilege. In all 
 cases where the privilege attaches in consid- 
 eration of an attendance at a specified place 
 in a certain character, it includes the stay 
 and a reasonable time for going and return- 
 ing; 2 W. Bla. 1113; Smythe v. Banks, 4 
 Dall. (Pa.) 329, 1 L. Ed. 854; Lewis v. Elm- 
 endorf, 2 Johns. Cas. (N. Y.) 222; Crocker 
 v. Duncan, 6 Blackf. (Ind.) 278; In re Dick- 
 enson, 3 Harr. (Del.) 517; but not including 
 delays in the way ; 3 B. & Aid. 252 ; Smythe 
 v. Banks, 4 Dall. (Pa.) 329, 1 L. Ed. 854; 
 or deviations ; Chaffee v. Jones, 19 Pick. 
 (Mass.) 260. A person brought from one 
 state into another under federal process in 
 an extradition proceeding, and discharged 
 therefrom, cannot be arrested under civil 
 process until he has reasonable time to re- 
 turn to the state from which he came; In 
 re Baruch, 41 Fed. 472. 
 
 Where and when it may be made. An 
 arrest may be made in any place, except in 
 the actual or constructive presence of a 
 court, where the defendant is necessarily in 
 attendance on business, the privilege extend- 
 
 ing to going thereto and returning; 3 Bla. 
 Com. 289; but this privilege does not avail 
 one brought into court on criminal process 
 and discharged on bail; Moore v. Green, 73 
 N. C. 394, 21 Am. Rep. 470. An officer may 
 not break open an outer door to arrest one 
 whose domicile is there; Oystead v. Shed, 
 13 Mass. 520, 7 Am. Dec. 172 ; Gordon v. Clif- 
 ford, 28 N. H. 402; aliter, under statute; 
 Hawkins v. Com., 14 B. Mon. (Ky.) 395, 61 
 Am. Dec. 147; Phillips v. Ronald, 3 Bush 
 (Ky.) 244, 96 Am. Dec. 216; but he may 
 break inner doors to find the defendant when 
 the outer door is open; Williams v. Spencer, 
 
 5 Johns. (N. Y.) 352; 8 Taunt. 250; Cowp. 
 1 ; and this includes the door of the room of 
 a lodger ; id. ; but not the inner door of the 
 house of a stranger upon suspicion that the 
 defendant is there; 6 Taunt. 246. He may 
 break the outer door of the house of defend- 
 ant, who has escaped after arrest and taken 
 refuge there; Allen v. Martin, 10 Wend. (N. 
 Y.) 300, 25 Am. Dec. 564. It could not be 
 made on Sunday or any public holiday ; Stat. 
 29 Car. II. c. 7; contra (under a statute), 
 King v. Strain, 6 Blackf. (Ind.) 447. 
 
 An officer with a proper writ may stop a 
 train to arrest the railroad engineer running 
 it ; 20 Ohio L. J. 464 ; St Johnsbury & L. 
 C. R. Co. v. Hunt, 60 Vt. 588, 15 Atl. 186, 
 1 L. R. A. 189, 6 Am. Rep. 138. 
 
 Discharge from arrest on mesne process 
 may be obtained by giving sufficient bail, 
 which the officer is bound to take; 3 Maule 
 
 6 S. 283; 6 Term 355; 15 East 320; but 
 when the arrest is on final process, giving 
 bail does not authorize a discharge. 
 
 If the defendant otherwise withdraw him- 
 self from arrest, or if the officer discharge 
 him, without authority, it is an escape; and 
 the sheriff is liable to the plaintiff. See 
 Escape. If the party is withdrawn forcibly 
 from the custody of the officer by third per- 
 sons, it is a rescue. See Rescue. 
 
 Extended facilities are offered to poor 
 debtors to obtain a discharge under the stat- 
 utes of most if not all of the states of the 
 United States. In consequence, except in 
 cases of apprehended fraud, as in the con- 
 cealment of property or an intention to ab- 
 scond, arrests are infrequently made. See, 
 as to excepted cases, Armstrong v. Ayres, 19 
 Conn. 540; Bramhall v. Seavey, 28 Me. 45. 
 
 Generally. An unauthorized arrest, as un- 
 der process materially irregular or informal ; 
 Russell v. Hubbard, 6 Barb. (N. Y.) 654; 
 Welch v. Scott, 27 N. C. 72 ; Somervell v. Hunt, 
 3 H. & McH. (Md.) 113; Tackett v. State, 3 
 Yerg. (Tenn.) 392, 24 Am. Dec. 582; Lough v. 
 Millard, 2 R. I. 436; Grumon v. Raymond, 1 
 Conn. 40, 6 Am. Dec. 200 ; or process issuing 
 from a court which has no general jurisdic- 
 tion of the subject-matter; 10 Co. 68; 10 B. 
 & C. 28; Fisher v. McGirr, 1 Gray (Mass.) 
 1, 61 Am. Dec. 381; Tracy v. Williams, 4 
 Conn. 107, 10 Am. Dec. 102 ; Flack v. Ankeny, 
 Breese (111.) 187; Duckworth v. Johnston,
 
 ARREST 
 
 243 
 
 ARREST 
 
 7 Ala. 581 ; Camp v. Moseley, 2 Fla. 171 ; 
 State v. McDonald, 14 N. C. 471; Rodman 
 v. Ilarcourt, 4 B. Monr. (Ky.) 230; State v. 
 Weed, 21 N. II. 262, 53 Am. Dec. 188; 
 v. Davis, 9 Ga. 7::; Gurney v. Tufts, .".7 Me. 
 130, 58 Am. Dec. 777; Bx parte Burford, 3 
 Ora. ir. S.) 448, 2 L. Ed, 495; Gret 
 Briggs, l curt. c. c. 311, Fed. ("as. No. 5,- 
 7<J4 ; is void; but if the failure of jurisdic- 
 tion be as to person, place, or pro© 
 must appear on the warrant, to have this 
 effect; Bull. N. P. 83; Savacool v. Boughton, 
 5 Wend. (N. Y.) 175, 21 Am. Dec. L81; 
 Churchill v. Churchill, 12 Vt. 661; Barnes 
 v.- Barber, 1 Gilman (111.) 401 ; .Miller v. 
 Grice, 1 Rich. (S. C.) 147; Reed v. Rice, 2 
 J. J. Marsh. (Ky.) 44, 19 Am. Dec. 122; 
 Grumon v. Raymond, l Conn. 40, 6 Am. Dec. 
 200; Tuell v. Wrink, G Blackf. (Ind. i 249; 
 State v. Tuell, id. 344; Wells v. Jackson, 3 
 Munf. (Va.) 458; Halsted v. Brice, 13 Mo. 
 171; Conner v. Com., 3 Binn. (Pa.) 3S; Don- 
 ahoe v. Shed, 8 Mete. (Mass.) 326; Humes 
 v. Taber, 1 R. I. 404; 3 Burr. 17GG ; 1 W. 
 Bla. 555. The arrest of the wrong person ; 
 2 Scott N. S. 86; 1 M. & G. 77.",; Mel v in v. 
 Fisher, 8 N. H. 406; Scott v. Ely, 4 Wend. 
 (N. Y.) 555; Gurnsey v. Lovell, 9 id. 319; 
 renders the officer liable for a trespass to 
 the party arrested. See 1 Bennett & H. 
 Lead. Crim. Cas. 180-184. 
 
 In Criminal Cases. The apprehending or 
 detaining of the person in order to be forth- 
 coming to answer an alleged or suspected 
 crime. Quoted and adopted, as is also the 
 distinction which follows, in County of Mont- 
 gomery v. Robinson, 85 111. 174; Hogan v. 
 Stophlet, 179 111. 150, 53 N. E. 604, 44 L. 
 R. A. 809 ; Ex parte Sherwood, 29 Tex. App. 
 334, 15 S. W. 812. 
 
 The word arrest is said to be more properly used 
 in civil cases, and apprehension in criminal. Thus, 
 a man is arrested under a capias ad respondendum, 
 and apprehended under a warrant charging him 
 with larceny. 
 
 Wlio may make. The person to whom 
 the warrant is addressed is the proper per- 
 son in case a warrant has been issued, 
 whether he be described by name; Salk. 
 17G; Frost v. Thomas, 24 Wend. (N. Y.) 
 418; State v. Kirby, 24 N. C. 201; or by his 
 office; 1 B. & C. 288; Russell v. Hubbard, 
 G Barb. (N. Y.) 654. But, if the authority 
 of the warrant is insufficient, he may be lia- 
 ble as a trespasser. See supra. A known 
 officer need not show a warrant in making 
 an arrest, but a special officer must if de- 
 manded; State v. Dula, 100 N. C. 423, 6 S. E. 
 89. 
 
 Any peace officer, as a justice of the peace; 
 1 Hale, PI. Cr. 8G; sheriff; 1 Saund. 77; 1 
 Taunt. 46; coroner ; 4 Bla. Com. 202 ; con- 
 stable; 32 Eng. Li. & Eq. 783; Danovan v. 
 Jones, 36 N. H. 246; or watchman ; 3 Taunt. 
 14; 3 Campb. 420; may without a warrant 
 arrest any person committing a felony in 
 his presence; Wakely v. Hart, 6 Binn. (Pa.) 
 
 318; 3 Hawkins, PI. Cr. 164; 8 
 
 Wells, 71 111. 78; Mate v. 
 
 L'.",l ; Boyd v. State, 17 Ga. 194; or 
 
 mitting a breach of the peac< , dm ■ 
 
 tinuance or immediately 
 
 & P. 40; Taylor v. Stroi - 
 
 :;sl ; Knot v. Gay, l Root < Conn. 
 
 1] v. Payne, 2 Nott & M'C. I S • 
 U. s. v. Hart, Pet. C. C. 390, 
 15,316; or if lie is sufficiently near to 
 what Is said and the sound of the blows, al- 
 he cannot Bee tor t be da i tne - ; state 
 v. McAfee, 107 X. 0. 812, 12 S. E. 435, 10 L. 
 R. a. 607; Johnson v. State, 30 Ga. 
 White v. Kent, 1 1 Ohio St. 550; Brooks v. 
 Com., 61 la. 352, 100 Am. Dec. 645; oi 
 to prevent the commission; and such officer 
 may arrest any one whom he rea sonably sus- 
 pects of having committed a felony, whether 
 a felony has actually been Committed or Dot; 
 .". Campb. 420; Rohan v. Sawin, 5 Cush. 
 (Mass. i 281; Banes v. state, 6 Humphr. 
 (Teun.) 53, 44 Am. Dec. 289; Wakely v. 
 Hart, 6 Binn. (Pa.) 316; Bolley v. Mix, 3 
 Wend. (N. Y.) 350, 20 Am. Dec. 702; wheth- 
 er acting on his own knowledge or facts com- 
 municated by others; 6 B. & C. 635 ; but not 
 unless the offence amount to a felony; 5 
 Exch. 378; Rohan v. Sawin. 5 Cush. (Mass.) 
 281; Com. v. Carey, L2 id. 246; Com. v. Mc- 
 Laughlin, 12 id. 615. See Russ. & R. 329; 
 Wright v. Com., 85 Ky. 123, 2 S. W. 904. But 
 a constable cannot arrest for an ordinary 
 misdemeanor without a warrant, unless pres- 
 ent at the time of the offeuce; Winn v. Hob- 
 son, 54 N. Y. Super. Ct. 330; North v. Peo- 
 ple, 139 111. 81, 28 N. E. 966; Ross v. Leg- 
 gett, 61 Mich. 445. 28 X. W. 695, 1 Am. St 
 Rep. 608; Scott v. Eldridge, 154 Ma 
 27 N. E. 677, 12 L. R. A. 37'J; State v. David- 
 son, 44 Mo. App. 513. 
 
 A police constable may arrest for a breach 
 of the peace committed In bis sightj 4 n. & 
 X. 265. If upon probable suspicion or a rea- 
 sonable charge made by a third person, he 
 believes that a felony (but uol a misdemean- 
 or; 5 Exch. 37S) has been committed he may 
 arrest the person whom he believes to have 
 committed the felony: .". II. ft N. 417. To do 
 this he may break open doors. Blackstone 
 (4 Com. 492) says he may kill the felon if 
 necessary. 
 
 Mere impudence or abusive language to an 
 officer does not justify arrest witiout a war- 
 rant; Pinkerton v. Verberg, 7S Mich. 573, II 
 N. W. 570, 7 L. R. A. 507, 18 Am. St 
 473f Jenkins v. State, 3 Ga. App. 146, 59 S. 
 E. 435; or threats of injury to another offi- 
 cer; Giroux v. state. 40 Tex. 98; otherwise 
 if there is interference with the performance 
 of his duty; Montgomery v. Sutton. t;7 la. 
 497, 25 X. W. 748; Myers v. Dunn. 126 Ky. 
 548, 104 S. W. 352, 13 L. R. A. I X. S.) 881, 
 and note; or if the language amounts to a 
 breach of the peace on a public street; State 
 v. Appleton, 70 Kan. 217, 78 Pac. 445; Davis 
 v. Burgess, 54 Mich. 514, 20 N. W. 540, 52 Am.
 
 ARREST 
 
 244 
 
 ARREST 
 
 Rep. 828. Threats alone, unaccompanied by 
 any effort or apparent intention to execute 
 them, do not constitute the offence of resist- 
 ing an officer in the execution of lawful pro- 
 cess; Statham v. State, 41 Ga. 507; nor do 
 mere derogatory remarks addressed by a by- 
 stander to a policeman; City of Chicago v. 
 Brod, 141 111. App. 500; nor is it resistance 
 to step in front of a policeman making an 
 arrest, demand his number and remonstrate 
 with him for ill treating the prisoner; Com. 
 v. Sheriff, 3 Brewst. (Pa.) 343. A mere state- 
 ment by one about to be arrested that he 
 will die first is not witbin a statute making 
 it a crime to oppose arrest; State v. Scott, 
 123 La. 1085, 49 South. 715, 24 L. R. A. (N. 
 S.) 199, 17 Ann. Cas. 400. 
 
 An officer may arrest without warrant for 
 the violation of a municipal ordinance com- 
 mitted in his presence; Village of Oran v. 
 Bles, 52 Mo. App. 509; but in such case the 
 offender must have a speedy trial or hearing; 
 State v. Freeman, S6 N. C. 683; Judson v. 
 Reardon, 16 Minn. 431 (Gil. 387) ; and the 
 right exists whether such arrest is author- 
 ized by ordinance or not; Scircle v. Neeves, 
 47 Ind. 2S9; or if the charter confers on the 
 officer the powers of a constable; State v. 
 Castieny, 34 Minn. 1, 24 N. W. 458; and a 
 municipal ordinance authorizing such ar- 
 rests is valid ; White v. Kent, 11 Ohio St. 
 550; as is also a charter or general statute ; 
 Mayo v. Wilson, 1 N. H. 53; Burroughs v. 
 Eastman, 101 Mich. 419, 59 N. W. 817, 24 L. 
 R. A. S59, 45 Am. St. Rep. 419; Jones v. Root, 
 6 Gray (Mass.) 435; but such arrest is not 
 authorized if the offense is not committed in 
 the presence of the officer ; Pesterfield v. 
 Vickers, 3 Coldw. (Tenn.) 205; State v. Belk, 
 76 N. C. 10, where it was also said that the 
 right to arrest in such cases does not neces- 
 sarily exist. But an ordinance authorizing 
 arrest at the will of the officer without pro- 
 viding an opportunity for trial or prelim- 
 inary examination is void and will not pro- 
 tect the officer even if acting in good faith ; 
 State v. Hunter, 106 N. C. 796, 11 S. E. 366, 
 8 L. R. A. 529. 
 
 As to the power to make arrest without a 
 warrant, see Porter v. State, 124 Ga. 297, 52 
 S. E. 283, 2 L. R. A. (N. S.) 730 and note. 
 A private person who is present when a 
 felony is committed; 1 Mood. 93; Holley v. 
 Mix, 3 Wend. (N. Y.) 353, 20 Am. Dec. 702; 
 Long v. State, 12 Ga. 293; or during the 
 commission of a breach of the peace; 10 C. 
 & F. 28; In re Powers, 25 Vt. 261; or sees 
 another in the act of carrying away prop- 
 erty he has stolen ; Hershey v. O'Neill, 36 
 Fed. 168; may and should arrest the felon, 
 and may upon reasonable suspicion that the 
 person arrested is the felon, if a felony has 
 been committed; 1 Price, Exch. 525; United 
 States v. Boyd, 45 Fed. 851; but in defence 
 to an action he must allege and prove the 
 offence to have been committed; 6 C. & P. 
 684, 723; Holley v. Mix, 3 Wend. (N. Y.) 
 
 353; Rohan v. Sawin, 5 Cush. (Mass.) 281; 
 and also that he had reasonable grounds for 
 suspecting the person arrested; 3 Campb. 
 35; 2 Q. B. 169; Hall v. Suydam, 6 Barb. 
 (N. Y.) 84; Winebiddle v. Porterfield, 9 Pa. 
 137; Wasson v. Canfield, 6 Blackf. (Ind.) 
 406; Hall v. Hawkins, 5 Ilumphr. (Tenn.) 
 357; Wills v. Noyes, 12 Pick. (Mass.) 324; 
 Wilmarth v. Mountford, 4 Wash. C. C. 82, 
 Fed. Cas. No. 17,774. If a felony has been 
 committed and there is reasonable cause to 
 believe that A. committed it, a private person 
 is justified in arresting A., though it turns 
 out that B. was guilty; 8 C. & P. 522. See 
 Russel v. Shuster, 8 W. & S. (Pa.) 308; 2 C. 
 & P. 361, 565; 1 Benn. & H. L. Cas. 143; 
 a private person may arrest if there be a 
 breach of the peace, or if he has reasonable 
 ground to believe that a breach of the peace 
 that has been committed will be renewed ; 10 
 CI. & F. 28. 
 
 As to arrest to prevent the commission of 
 crimes, see 2 B. & P. 260; 9 C. P. 262. 
 
 Where a private party attempts to make 
 an arrest for riot on the order of a justice 
 after offenders have dispersed, he becomes a 
 trespasser and may be resisted ; State v. 
 Campbell, 107 N. C. 948, 12 S. E. 441. Any 
 person may arrest an affrayer and detain 
 him till his passion has cooled and then de- 
 liver him to an officer ; 1 Cr. M. & R. 762 ; but 
 not after the affray has ceased ; 2 Q. B. 375. 
 
 A private detective, in pursuit of a fugi- 
 tive from justice in another state, cannot 
 arrest without a warrant by merely procur- 
 ing a policeman to make the arrest; Harris 
 v. R. Co., 35 Fed. 116 ; nor can such detective 
 forcibly detain the defendant to await a 
 legal order of arrest; Harland v. Howard, 57 
 Hun 113, 5S7, 10 N. Y. Supp. 449. As to ar- 
 rest by hue and cry, see Hue and Cry. As 
 to arrest by military officers, see Luther v. 
 Borden, 7 How. (U. S.) 1, 12 L. Ed. 581. 
 
 Who liable to. Any person is liable to 
 arrest for crime, except ambassadors and 
 their servants; Cooke v. Gibbs, 3 Mass. 197; 
 Scott v. Curtis, 27 Vt. 762; U. S. v. Kirby, 7 
 Wall. (U. S.) 483, 19 L. Ed. 278. 
 
 It has been held that no legal arrest of a 
 voter can be made on election day for cause 
 relating to his suffrage; U. S. v. Small, 38 
 Fed. 103. 
 
 When and where it may be made. An ar- 
 rest may be made at night as well as by day ; 
 and, for treason, felony, breach of the peace, 
 or generally for an indictable offence, on 
 Sunday as well as on other days; 16 M. & 
 W. 172; Pearce v. Atwood, 13 Mass. 347; 
 Wright v. Keith, 24 Me. 158. And the offi- 
 cer may break open doors even of the crim- 
 inal's own house ; Barnard v. Bartlett, 10 
 Cush. (Mass.) 501, 57 Am. Dec. 123; Haw- 
 kins v. Com., 14 B. Monr. (Ky.) 395, 61 Am. 
 Dec. 147 (even to arrest a person therein, 
 not the owner; Com. v. Reynolds, 120 Mass. 
 190, 21 Am. Rep. 510) ; although he must 
 first demand admission and be refused after
 
 ARREST 
 
 245 
 
 ARREST 
 
 giving notice of his business ; Russ. Cr. 840; 
 McLennon v. Richardson, 15 Gray (Mass.) 
 74, 77 Am. Dec. 363; State v. Shaw, 1 Root 
 (Conn.) 134; as may a private person in 
 fresh pursuit, under circumstances which au- 
 thorize him to make an arrest; 4 Bla. Com. 
 293. 
 
 It must be made within the jurisdiction 
 of the court under whose authority the offi- 
 cer acts; People v. McLeod, 1 Hill (X. Y. ) 
 377, 37 Am. Dec. 32S; Church v. Hubbart, 2 
 da. (U. S.) 187, 2 L. Ed. 249; Bromley v. 
 Iluichins, 8 Vt. 184, 30 Am. Dec 465; Law- 
 sou v. Buzines, 3 Harr. (Del.) 416; and ju- 
 risdiction for this purpose can be extended 
 to foreign countries only by virtue of treaties 
 or express laws of those countries; 1 I'.isli. 
 Cr. Law § 598; Wheat. Int. Law (3d Eng. 
 ed.) § 113; Com. v. Deacon, 10 S. & R. (Pa.) 
 125; Ex parte Bolmes, 12 Vt. 831; In re 
 Sheazle, 1 W. & M. <;t;. Fed. Cas. No. 12,734; 
 In re Metzger, 1 Barb. (N. Y.) 248. And 
 see, as between the states of the United 
 States, Jones v. Van Zandt, 5 How. (U. S.) 
 215, 12 L. Ed. 122; Com. v. Tracy, 5 Mete. 
 (Mass.) 536; State v. Howell. R. M. Charlt. 
 (Ga.) 120; State v. Allen, 2 Humphr. 
 (Tenn.) 258; as to arrest in a different 
 county; Sturm v. Potter, 41 Ind. 181. 
 
 Maimer of making. An officer authorized 
 to make an arrest, whether by warrant or 
 from the circumstances, may use necessary 
 force ; 2 Bish. Cr. Law 37 ; Findlay v. Pruitt, 
 9 Port. (Ala.) 195; State v. Mahon, 3 Harr. 
 (Del.) 5G8; Wright v. Keith, 24 Me. 158; 
 Henry v. Lowell, 16 Barb. (N. Y.) 268; 
 State v. Stalcup, 24 N. C. 52; 4 B. & C. 596; 
 Skidmore v. State, 43 Tex. 93 (but he may 
 not strike except in self-defence) ; he may 
 kill the felon if he cannot otherwise be 
 taken; 1 Russ. Cr. 665-7 (7th Eng. ed.) 813; 
 
 I Bish. N. Cr. L. § 647 ; Starr v. U. S., 153 U. 
 S. 614, 14 Sup. CL 919, 38 L. Ed. 844 ; North 
 Carolina v. Gosnell, 74 Fed. 734; U. S. v. 
 Jailer, 2 Abb. (U. S.) 265, Fed. Cas. No. 
 15,463; State v. Anderson, 1 Hill (S. C.) 
 327; State v. Rhodes, Houst. Cr. Cas. (Del.) 
 476; Cousins v. State, 50 Ala. 117, 20 Am. 
 Rep. 290 (but not "in any case where, with 
 diligence and caution, the prisoner could be 
 otherwise held" ; Reneau v. State, 2 Lea 
 (Tenn.) 720, 31 Am. Rep. 628; State v. Cole- 
 man, 186 Mo. 151, 84 S. W. !t7S, 69 L. R. A. 
 381 ; nor if the original difficulty is caused 
 by the officer; Johnson v. State, 58 Ark. r>7, 
 23 S. W. 7) ; and so may a private person in 
 making an arrest which he is enjoined to 
 make; 4 Bla. Com. 293 ; and if the officer or 
 a private person is killed, in such case it is 
 murder. In making an arrest for misde- 
 meanor, an officer can kill or inflict bodily 
 harm upon the person only when he is placed 
 in like danger; Dilge> v. Com., 88 Ky. 550, 
 
 II S. W. 651, 11 Ky. Law Rep. 67; Thomas 
 v. Kinkead, 55 Ark. 502, IS S. W. 854, 15 L. 
 R. A. 558, 29 Am. St. Rep. 68. 
 
 When an offender is not resisting but 
 
 fleeing, an officer in making an arrest for 
 a misdemeanor has no right to kill or 
 although he may do so In case of f< 
 Head v. Martin, s~, Ky. 480, 3 8. W. 
 He cannot kill a fleeing misdemeanant to pre- 
 vent escape; Thomas v. Kinkead, 55 Ark. 
 502, is s. \V. 854, L5 L. It. A. 558, 29 A 
 Rep. 68; Brown v. Weaver, 7'! Miss. 7. 23 
 South. 388, 42 L. R. A. 423, 71 Am. St. Rep. 
 512 (where the sheriff's official boi ■ 
 were held liable for the shooting by i i- 
 ty); contra, l Blah. Cr. Proc § 161, which 
 is criticised by the Arkansas court (which 
 in its turn is reviewed in a later edition of 
 the same work) and also by the Mississippi 
 court. See also 12 Harv. L. Rev. mi. which 
 approves the cases cited supra ami Btrongly 
 criticises Mr. Bishop. If the officer kill his 
 prisoner in such case he is guilty of man- 
 slaughter; Reneau v. State, 2 Lea (Tenn.) 
 720, 31 Am. Rep. 626. If a person kill an 
 ollieer in resisting an Illegal arrest, without 
 warrant, it is reduced from murder, which it 
 would have been if the officer had a right to 
 arrest, to manslaughter, or it may be no of- 
 fence, if the person arrested had the right 
 to use such force as was necessary in re- 
 sisting; John Bad Elk v. U. S.. 177 U. S. 
 529, 20 Sup. Ct. 729, 44 L. Ed. 874; Jenkins 
 v. State. .') (.a. App. 146, 59 S. B. 435. For 
 unnecessarily rough treatment in making an 
 arrest an officer has been held liable in ex- 
 emplary damages; McConathy v. Heck. ::t 
 Colo. 461, 83 Pac. 135, 4 L. R. A. (N. S. | 358, 
 7 Ann. Cas. S96. 
 
 Reading a warrant and directing defend- 
 ant to appear, is not an arrest; Baldwin v. 
 Murphy, 82 111. 485; but see Shannon v. 
 Jones, 76 Tex. 141, 13 S. W. 177. Arresting 
 the body and exhibiting the pine. 
 enough ; McNeice v. Weed, 50 Vt. 728. 
 
 See JusTiiiAta.E Homicide; Homicide; Re- 
 ward; full notes in 19 Am. Dec. 4sr. ; 61 id. 
 151. 
 
 ARREST OF JUDGMENT. The act of a 
 court by which the judges refuse to give 
 judgment for the plaintiff, because upon the 
 face of the record it appears that the plain- 
 tiff is not entitled to it. 
 
 A motion for arrest of judgment must lie 
 grounded on some objection arising on the 
 face of the record itself: state v. Casey, -i i 
 I.a. Ann. 969, 11 South. 583; M Gill v. Roth- 
 geb, 45 111. App. 511; and no defect in the 
 evidence or irregularity at the trial can Ik» 
 urged in this stage of the proceedings. But 
 any want of sufficient certainty in the in- 
 dictment, as in the statement of time or 
 place (where material), of the person against 
 whom the offence was committed, or of the 
 facts and circumstauces constituting the of- 
 fence, or otherwise, which is not aided by 
 the verdict, is a ground for arresting the 
 Judgment In criminal cases, an arrest oi. 
 Judgment is founded on exceptions to the 
 Indictment In civil cases whatever is al- 
 leged in arrest of judgment must be such
 
 ARREST OF JUDGMENT 
 
 246 
 
 ARRESTMENT 
 
 matter as would on demurrer have been suf- 
 ficient to overturn the action or plea. In the 
 applicability of the rule there is no differ- 
 ence between civil and criminal cases ; Dela- 
 ware Division Canal Co. v. Com., 60 Pa. 367, 
 100 Am. Dec. 570. Although the defendant 
 himself omits to make any motion in arrest 
 of judgment, the court, if, on a review of the 
 case, it is satisfied that the defendant has 
 not been found guilty of any offence in law, 
 will of itself arrest the judgment; 1 East 
 146. Where a statute upon which an indict- 
 ment is founded was repealed after the find- 
 ing of the indictment, but before plea plead- 
 ed, the court arrested the judgment; 18 Q. 
 B. 761; Dearsl. 3. See also 8 Ad. & E. 496; 
 1 Russ. & R. 429; Com. v. Marshall, 11 Pick. 
 (Mass.) ;r>0, 22 Am. Dec. 377; Com. v. Pat- 
 tee, 12 Cush. (Mass.) 501. If the judgment 
 is arrested, all the proceedings are set aside, 
 and judgment of acquittal is given ; but this 
 will be no bar to a new indictment; Comyns. 
 Dig. Indictment, N. ; 1 Bish. Cr. Law 998. 
 
 Where a judgment rendered has been re- 
 versed, and a new trial granted, which is 
 had upon the same indictment in the same 
 court, a motion in arrest of judgment on 
 the ground of a former acquittal of a higher 
 offence charged in the indictment, is good 
 where such facts appear in the record ; Gold- 
 ing v. State, 31 Fla. 202, 12 South. 525. 
 
 ARRESTANDIS BONIS NE DISSIPEN- 
 TUR. A writ for him whose cattle or goods, 
 being taken during a controversy, are likely 
 to be wasted and consumed. 
 
 ARRESTEE. In Scotch Law. He in whose 
 hands a debt, or property in his possession, 
 has been arrested by a regular arrestment. 
 
 If, in contempt of the arrestment, he make pay- 
 ment of the sum or deliver the goods arrested to 
 the common debtor, he is not only liable criminally 
 for breach of the arrestment, but he must pay the 
 debt again to the arrester; Erskine, Inst. 3. 6. 6. 
 
 ARRESTER. In Scotch Law. One who 
 
 sues out and obtains an arrestment of his 
 debtor's goods or movable obligations. Ers- 
 kine, Inst. 3. 6. 1. 
 
 ARRESTMENT. In Scotch Law. Securing 
 a criminal's person till trial, or that of a 
 debtor till he give security judicio sisti. The 
 order of a judge, by which he who is debtor 
 in a movable obligation to the arrester's 
 debtor is prohibited to make payment or de- 
 livery till the debt due to the arrester be 
 paid or secured. Erskine, Inst. 3. 6. 1; 1. 2. 
 12. 
 
 This word is used interchangeably with at- 
 tachment in the act for the protection of sea- 
 man's wages; U. S. R. S. § 4536; which it 
 is said must be liberally construed; Wilder 
 v. Navigation Co., 211 U. S. 239, 29 Sup. Ct. 
 58, 53 L. Ed. 164, 15 Ann. Cas. 127. The 
 court, after quoting the above definition, held 
 that, though not literally so, the prohibition 
 against "attachment or arrestment" must ap- 
 
 ply to execution after judgment as well as 
 attachment before it. 
 
 ARRET (Fr.). A judgment, sentence, or 
 decree of a court of competent jurisdiction. 
 
 The term is derived from the French law, and is 
 used in Canada and Louisiana. 
 
 Saisie arret is an attachment of property 
 in the hands of a third person. La. Code Pr. 
 art. 209; 2 Low. C. 77 ; 5 id. 198, 218. 
 
 ARRETTED (arrectatus, i. e. ad rectum 
 vocatus). 
 
 Convened before a judge and charged with 
 a crime. 
 
 Ad rectum malefactorem is, according to Bracton, 
 to have a malefactor forthcoming to be put on his 
 trial. 
 
 Imputed or laid to one's charge; as, no 
 folly may be arretted to any one under age. 
 Bracton, 1. 3, tr. 2, c. 10; Cunningham, 
 Diet. 
 
 ARRH/E. Money or other valuable things 
 given by the buyer to the seller, for the pur- 
 pose of evidencing the contract ; earnest. 
 
 There are two kinds of arrhse: one kind given 
 when a contract has only been proposed; the other 
 when a sale has actually taken place. Those which 
 are given when a. bargain has been merely proposed, 
 before it has been concluded, form the matter of 
 the contract, by which he who gives the arrtue con- 
 sents and agrees to lose them, and to transfer the 
 title to them in the opposite party, in case he should 
 refuse to complete the proposed bargain; and the 
 receiver of arrhse is obliged on his part to return 
 double the amount to the giver of them in case he 
 should fail to complete his part of the contract ; 
 Pothier, Contr. de Vente, n. 498. After the contract 
 of sale has been completed, the purchaser usually 
 gives arrhse as evidence that the contract has been 
 perfected. Arrhse are therefore denned quod ante 
 pretium datur, et fidem fecit contractus, facti toti- 
 usque pecuniae solvendce. Id. n. 506; Cod. 4. 45. 2. 
 3 Sand. Just, xxiii. See Earnest. 
 
 Arrhce spo7isalttice were the earnest or present 
 given by one betrothed to the other at the betrothal. 
 
 ARRIER BAN. A second summons to join 
 the lord, addressed to those who had neg- 
 lected the first. A summons of the inferiors 
 or vassals of the lord. Spelman, Gloss. 
 
 ARRIERE FIEF (Fr.). An inferior fee 
 granted out of a superior. 
 
 ARRIVE. To come to a particular place; 
 to reach a particular or certain place. See 
 cases in Leake, Contr., and in Abb. Diet. ; 
 Thompson v. U. S., 1 Brock. 411, Fed. Cas. 
 No. 13,9S5; Meigs v. Ins. Co., 2 Cush. (Mass.) 
 439; 8 B. & C. 119; U. S. v. Open Boat, 5 
 Mas 132, Fed. Cas. No. 15,967; Harrison v. 
 Vose, 9 How. (U. S.) 372, 13 L. Ed. 179. 
 
 ARR0GATI0N. The adoption of a person 
 sui jwvs. 1 Brown, Civ. Law 119 ; Dig. 1. 7. 
 5; Inst. 1. 11. 3. 
 
 ARSER IN LE MAIN (Fr. Burning in 
 the hand). The punishment inflicted on 
 those who received the benefit of clergy. 
 Termes de la Ley. 
 
 ARSON (Lat. ardere, to burn). The ma- 
 licious burning of the house of another. Co. 
 3d Inst. 66; Bish. Cr. L. § 415; 4 Bla. Com.
 
 ARSON 
 
 247 
 
 ARSON 
 
 220; Currau's Case, 7 Gratt (Va.) 619; 
 Ritchey v. State, 7 Blackf. (Ind.) 108; Mary 
 v. State, 24 Ark. -14, 81 Am. Dec. GO; 1 Leach, 
 Cr. Cas. 218; People v. Fisher, 51 Cal. 319; 
 Young v. Cum., 12 Bush (Ky.) 243; but it 
 is not arson to demolish the house first and 
 then burn the material; Mulligan v. State, 25 
 Tex. App. 199, 7 S. W. 6G4, 8 Am. St. Rep. 
 435. 
 
 In some states by statute there are degrees 
 of arson. The house, or some part of it, 
 however small, must be consumed by fire ; 
 9 C. & P. 45; Com. v. Van Schaack, 16 .Mass. 
 105; State v. Mitchell, 27 N. C. 350. Where 
 the house is simply scorched or smoked and 
 the fire is not communicated to the building; 
 Woolsey v. State, 30 Tex. App. 340, 17 S. W. 
 546; or where parts of a house already de- 
 tached are burned; Mulligan v. State, 25 
 Tex. App. 199, 7 S. W. 004, 8 Am. St. Rep. 
 435; it is not arson; nor where a house was 
 blown up by dynamite and splinters were 
 torn from, the roof and find by the explo- 
 sion; Landers v. State, 39 Tex. Cr. R. 671, 
 47 S. W. 1008; 12 Ilarv. L. Rev. 433. The 
 question of burning is one of fact for the 
 jury; 1 Mood. Cr. Cas. 39S; Com. v. Betton, 
 5 Cush. (Mass.) 427. 
 
 It must be another's house; 1 P>ish. Cr. 
 Law § 3S9 ; but aliter under the N. H. stat- 
 ute; State v. Hurd, 51 X. II. 170; but if a 
 man set fire to his own house with a view to 
 burn his neighbor's, and does so, it is, at 
 least, a great misdemeanor; 1 Hale, PI. Cr. 
 568; W. Jones 351; Bloss v. Tobey, 2 Pick. 
 (Mass.) 325; Erskine v. Com., 8 Gratt. (Va.) 
 024. See People v. Henderson, 1 Park. Cr. 
 Cas. (N. Y.) 5G0; People v. Van Blarcum, 2 
 Johns. (N. Y.) 105; Ritchey v. State, 7 
 Blackf. (Ind.) 168; and under statutes in 
 some states a tenant who sets fire to a house 
 occupied by himself is guilty of the crime; 
 State v. Moore, 01 Mo. 270; People v. Simp- 
 son, 50 Cal. :;o4. If one sets fire to a school- 
 house with the intention of burning an ad- 
 joining dwelling, which actually happens, he 
 is guilty of arson; Combs v. Com., 93 Ky. 
 313, 20 S. YV. 221. 
 
 The house of another must be burned, to 
 constitute arson at common law; but the 
 term "house" comprehends not only the very 
 mansion-house, but all out-houses which are 
 parcel thereof, though not contiguous to it, 
 nor under the same roof, such as the barn, 
 stable, cow-house, sheep-house, dairy-house, 
 mill-house, and the like, being within the 
 curtilage, or same common fence, as the man- 
 sion itself; 4 C. & P. 245; State v. McGow- 
 an, 20 Conn. 245, 52 Am. Dec. 330; People 
 v. Butler, 10 Johns. (N. Y.) 203; State v. 
 Sandy, 25 N. C. 570; Chapman v. Com., 5 
 Whart. (Pa.) 127, 34 Am. Dec. 505; Stevens 
 v. Com., 4 Leigh (Va.) 083; Com. v. Posey, 
 4 Call (Va.) 100. 2 Am. Dec. 500: State v. 
 Roper, 88 N. C. 050; Quinn v. People, 71 N. 
 Y. 561, 27 Am. Rep. 87; Ratekin v. State. 26 
 Ohio St. 420. And it has also been said that 
 
 the burning of a barn, though no part of the 
 
 mansion, if it has corn or hay in 11 
 
 at common law; 1 Hah-. P. I 
 
 P. 245; Sampson v. Com., 5 (Pa.) 
 
 385; contra, Creed v. People, 81 ill. 565. In 
 
 !<husetts, the statute refei 
 dwelling-house strictly; Com. v. Barney, LO 
 Cush. (.Mass.) 17s. Where a pi 
 i fire to his cell, in order to effect an • 
 hold, not arson ; People v. < !otteral, 18 Johns. 
 (N. Y.i 115; bul Bee I Whart Cr. L 
 ed.) § 829; Luke v. State, 49 Ala. 30, 20 Am. 
 Rep. 2<;:»; Willis v. State, 32 Tex. Cr. R. 
 534, 25 S. \V. 123. The burning must have 
 been both malicious and wilful: 1 Bishop, 
 Cr. L. § 259; Maxwell v. State, 68 Miss. 339, 
 8 South. 546. And generally, if the act is 
 proved to have been done wilfully, it may be 
 inferred to have been done maliciously, un- 
 less the contrary is proved; 1 Russ. & R. Cr. 
 Cas. 26. On a charge of arson for setting 
 fire to a mill, an intent to injure or defraud 
 the mill-owners will be conclusively inferred 
 from the wilful act of firing; 2 B. & C. 264. 
 But this doctrine can only arise where the 
 act is wilful, and therefore, if the fire ap- 
 peals to be the result of accident, the party 
 who is the cause of it will not be liable; 
 Jenkins v. State, 53 Ga. 33, 31 Am. Rep. 255; 
 McDonald v. People, 47 111. 533. 
 
 In some states by statute a wife may be 
 guilty of arson by burning a husband's prop- 
 erty ; Emig v. Daum, 1 Ind. App. 140, 27 N. 
 E. 322. 
 
 It is a felony at common law, and origi- 
 nally punishable with death: Co. 3d Inst. 66; 
 2 East PI. Cr. 1015; Sampson v. Com.. 5 YV. 
 & S. (Pa.) 3S5; State v. Seaborn, 15 N. C. 
 305; but this is otherwise by statute; State 
 v. Bosse, 8 Rich. (S. C.) 270; Com. v. Posey, 
 4 Call (Va.) 109, 2 Am. Dec. 500; U. S. v. 
 White, 5 Cra. C. C. 73, Fed. Cas. No. 1 
 If homicide result, the act is murder; State 
 v. Cooper, 13 N. J. L. 361, 25 Am. Dee 
 1 Bish. Cr. Law 361. 
 
 It is not an indictable offence at common 
 law to burn one's own house to defraud in- 
 surers: 1 Whart Cr. L. (9th ed.) I - 
 oCherwise in most states by statute: State v. 
 Hurd, 51 N. II. 170; Shepherd v. People, 19 
 N. Y. 537; People v. Schwartz. 32 Cal. 160: 
 See Crimes. 
 
 ARSURA. The trial of money by heating 
 it after it was coined. Now obsolete. 
 
 ART. In Patent Law. A principle put in 
 
 practice and applied to some art. machine, 
 manufacture, or composition of matter. 
 Earle v. Sawyer. 4 Mas. 1, Fed. ("as. No. 4,- 
 247. See Copyeight; Patent. 
 
 Under the tariff laws an artist's copies of 
 antique masterpieces are works of art of 
 as high a grade as those executed by the 
 same hand from original models of modern 
 sculptors: Tutton v. Yiti, 108 U. S. 312, 2 
 Sup. Ct. 687, 27 I.. I'd. 737. 
 
 The word statuary as used in the import
 
 ART 
 
 248 
 
 ARTICLES 
 
 laws Includes professional productions of 
 statuary or of a sculptor only ; U. S. R. S. 
 478. This definition is held to embrace such 
 works of art as are the result of the artists 
 own creation or are copies of them made un- 
 der his supervision, as distinguished from 
 the productions of the manufacturer or me- 
 chanic. 
 
 For most practical purposes works of art 
 may be divided into four classes : 1. The 
 fine arts properly so called, intended solely 
 for ornamental purposes and including paint- 
 ings in oil and water, upon canvas, plaster 
 or other material, and original statuary of 
 marble, bronze, or stone. 2. Minor objects 
 of art intended also for ornamental purposes, 
 such as statuettes, vases, drawings, etchings 
 and articles which pass under the general 
 name of bric-a-brac, and are susceptible of 
 an indefinite number of reproductions from 
 the original. 3. Objects of art which serve 
 primarily an ornamental, and incidentally a 
 useful purpose, such as painted or stained 
 glass windows, tapestry, paper hangings, etc. 
 4. Objects primarily designed for a useful 
 purpose, but made ornamental to gratify the 
 taste, such as ornamented clocks, the higher 
 grade of carpets, curtains, gas fixtures and 
 household and table furniture; U. S. v. Per- 
 ry, 146 U. S. 74, 13 Sup. Ct. 26, 36 L. Ed. 890. 
 No special favor is extended by congress to 
 any of these classes except the first, which 
 is alone recognized as belonging to the do- 
 main of high art ; id., where stained glass 
 windows were held not to be exempt from 
 duty as paintings imported for the use of a 
 religious society and not intended for sale. 
 
 Under the tariff act of 1897, plaster casts 
 of clay models, though gilded and painted 
 and produced in unlimited quantities, are 
 "casts of sculpture" and entitled to free en- 
 try when specially imported in good faith 
 for the use and by the order of any society 
 established solely for religious, philosophical, 
 scientific, educational or literary purposes; 
 Benziger v. U. S., 192 U. S. 38, 24 Sup. Ct. 
 189, 4S L. Ed. 331. 
 
 ARTICLED CLERK. A person bound by 
 indenture to a solicitor that he may acquire 
 a knowledge pertaining to that business. 
 
 ARTICLES (Lat. articulus, a joint). Di- 
 visions of a written or printed document or 
 agreement. 
 
 A specification of distinct matters agreed 
 upon or established by authority or requir- 
 ing judicial action. 
 
 The fundamental idea of an article is that of an 
 object comprising some integral part of a complex 
 whole. See Worcester, Diet. The term may be ap- 
 plied, for example, to a single complete question in 
 a series of interrogatories ; the statement of the 
 undertakings and liabilities of the various parties 
 to an agreement in any given event, where several 
 contingencies are provided for in the same agree- 
 ment; a statement of a variety of powers secured 
 to a branch of government by a constitution ; a 
 statement of particular regulations in reference to 
 one general subject of legislation in a system of 
 laws; and in many other instances resembling these 
 
 in principle. It is also used In the plural of the 
 subject made up of these separate and related ar- 
 ticles as articles of agreement, articles of war, the 
 different divisions generally having, however, some 
 relation to each other, though not necessarily a de- 
 pendence upon each other. 
 
 In Chancery Practice. A formal written 
 statement of objections to the credibility of 
 witnesses in a cause in chancery, filed by a 
 party to the proceedings after the deposi- 
 tions have been taken and published. 
 
 The object of articles is to enable the 
 party filing them to introduce evidence to 
 discredit the witnesses to whom the objec- 
 tions apply, where it is too late to do so in 
 any other manner; 1 Dan. Ch. Pr. (6th Am. 
 ed.) *957; and to apprize the party whose 
 witnesses are objected to of the nature of the 
 objections, that he may be prepared to meet 
 them; 1 Dan. Ch. Pr. (6th Am. ed.) *958. 
 
 Upon filing the articles, a special order is 
 obtained to take evidence; 2 Dick. Ch. 532; 
 which is sparingly granted; 1 Beam. Ord. 
 187. 
 
 The interrogatories must be so shaped as 
 not to call for evidence which applies direct- 
 ly to facts in issue ; Wood v. Mann, 2 Siunn. 
 316, Fed. Cas. No. 17,953; Gass v. Stinson, 
 2 Sumn. 605, Fed. Cas. No. 5,261; Troup v. 
 Sherwood, 3 Johns. Ch. (N. Y.) 558; 10 Ves. 
 Ch. 49. The objections can be taken only to 
 the credit and not to the competency of the 
 witnesses ; 3 Atk. 643; Troup v. Sherwood, 3 
 Johns. Ch. (N. Y.) 558; and the court are 
 to hear all the evidence read and judge of its 
 value; 2 Ves. Ch. 219. See, generally, 10 
 Ves. Ch. 49; 2 Ves. & B. 267; 1 Sim. & S. 
 467. / 
 
 In Ecclesiastical Law. A complaint in the 
 form of a libel exhibited to an ecclesiastical 
 court. 
 
 ARTICLES OF AGREEMENT. A written 
 memorandum of the terms of an agreement. 
 
 They may relate either to real or personal 
 estate, or both, and if in proper form will 
 create an equitable estate or trust such that 
 a specific performance may be had in equity. 
 
 The instrument should contain a clear and 
 explicit statement of the names of the par- 
 ties, with their additions for purposes of dis* 
 tinction, as well as a designation as parties 
 of the first, second, etc., part; the subject- 
 matter of the contract, including the time, 
 place, and more important details of the man- 
 ner of performance; the promises to be per- 
 formed by each party; the date, which 
 should be truly stated. It should be signed 
 by the parties or their agents. When signed 
 by an agent, the proper form is, A B, by his 
 agent [or attorney in fact], C D. 
 
 ARTICLES OF ASSOCIATION, OR OF 
 INCORPORATION. The certificate filed in 
 conformity with a general law, by persons 
 who desire to become a corporation, setting 
 forth the rules and conditions upon which 
 the association or corporation is founded. 
 Cent. Diet,
 
 ARTICLES OF CONFEDERATION 249 ARTICLES OF CONFEDERATION 
 
 ARTICLES OF CONFEDERATION. The 
 title of the compact which was made by the 
 thirteen original states of the United States 
 of America. Story, Const. 215, 223. 
 
 The full title was "Articles of Confedera- 
 tion and perpetual union between the states 
 of New Hampshire, Massachusetts Bay, 
 Rhode Island and Providence Plantations, 
 Connecticut, New York, New Jersey, Penn- 
 sylvania, Delaware, Maryland, Virginia, 
 North Carolina, South Carolina, and Geor- 
 gia." It was adopted and went into force on 
 the first day of March, 1781, and remained 
 as the supreme law until the first Wednes- 
 day of March, 17M) ; Owings v. Speed, 5 
 Wheat (U. S.) 420, 5 L. Ed. 124. 
 
 The accompanying analysis of this Important in- 
 strument is from Judge Story's Commentaries on 
 the Constitution of the United States. 
 
 The style of the confederacy was, by the first ar- 
 ticle, declared to be, "The United States of Amer- 
 ica." The second article declared that each state 
 retained its sovereignty, freedom, and independence, 
 and every power, jurisdiction, and right which 
 was not by this confederation expressly delegated 
 to the United States, in congress assembled. The 
 third article declared that the states severally en- 
 tered into a firm league of friendship with each 
 other, for their common defence, the security of 
 their liberties, and their mutual and general wel- 
 fare; binding themselves to assist each other 
 against all force offered to or attacks made upon 
 them, or any of them, on account of religion, sover- 
 eignty, trade, or any other pretence whatever. The 
 fourth article declared that the free inhabitants of 
 each of the states (vagabonds and fugitives from 
 justice excepted) should be entitled to all the priv- 
 ileges of free citizens in the several states ; that 
 the people of each state should have free ingress 
 and regress to and from any other state, and should 
 enjoy all the privileges of trade and commerce, sub- 
 ject to the same duties and restrictions as the in- 
 habitants; that fugitives from justice should, upon 
 the demand of the executive of the state from 
 which they fled, be delivered up ; and that full 
 faith and credit should be given, in each of the 
 states, to the records, acts, and judicial proceedings 
 of the courts and magistrates of every other state. 
 
 Having thus provided for the security and inter- 
 course of the states, the next article (5th) provided 
 for the organization of a general congress, declar- 
 ing that delegates should be chosen In such manner 
 as the legislature of each state should direct; to 
 meet in congress on the first Monday in every year, 
 with a power, reserved to each state, to recall any 
 or all of the delegates, and to send others in their 
 stead. No state was to be represented In congress 
 by less than two nor more than seven members. 
 No delegate was eligible for more than three in any 
 term of six years ; and no delegate was capable of 
 holding office of emolument under the United States. 
 Each state was to maintain its own delegates, and, 
 in determining questions in congress, was to have 
 one vote. Freedom of speech and debate in con- 
 gress was not to be impeached or questioned in any 
 other place; and the members were to be pro- 
 tected from arrest and imprisonment during the 
 time of their going to and from and attendance 
 on congress, except for treason, felony, or breach 
 of the peace. 
 
 By subsequent articles, congress was invested 
 with the sole and exclusive right and power of de- 
 termining on peace and war, unless in case of an 
 invasion of a state by enemies, or an imminent dan- 
 ger of an invasion by Indians; of sending and re- 
 ceiving ambassadors ; entering Into treaties and 
 alliances, under certain limitations as to treaties of 
 commerce; of establishing rules for deciding all 
 cases of capture on land and water, and for the 
 division and appropriation of prizes taken by the 
 
 land or naval forces, in the service of the United 
 States ; of granting letters of marque and r. 
 in times of peace; of appointing courts fi 
 trial of piracies and felonies committed on the high 
 seas ; and of establishing courts for receiving and 
 finally determining appeals in all cases of captures. 
 
 Congress was also invested with power to decide 
 in the last resort, on appeal, all disputes and differ- 
 ences between two or more states concerning bound- 
 ary, jurisdiction, or any other cause whatsoever; 
 and the mode of exercising that authority was 
 specially prescribed. And all controversies con- 
 cerning the private right of soil, claimed under 
 different grants of two or more states before the 
 settlement of their jurisdiction, were to be finally 
 determined in the same manner, upon the petition 
 of either of the grantees. But no state was to be 
 deprived of territory for the benefit of the United 
 States. 
 
 Congress was also invested with the sole and ex- 
 clusive right and power of regulating the alloy and 
 value of coin struck by their own authority, or that 
 of the United States; of fixing the standard of 
 weights and measures throughout the United States ; 
 of regulating the trade and managing all affairs 
 with the Indians, not members of any of the states, 
 provided that the legislative right of any state 
 within its own limits should not be infringed 
 or violated; of establishing and regulating post- 
 offices from one state to another, and exacting 
 postage to defray the expenses; of appointing all 
 officers of the land forces in the service of the 
 United States, except regimental officers ; of ap- 
 pointing all officers of the naval forces, and com- 
 missioning all officers whatsoever in the service of 
 the United States; and of making rules for the 
 government and regulation of the land and naval 
 forces, and directing their operations. 
 
 Congress was also invested with authority to ap- 
 point a committee of the states to sit in the recess 
 of congress, and to consist of one delegate from each 
 state, and other committees and civil officers, to 
 manage the general affairs under their direction; to 
 appoint one of their number to preside, but no per- 
 son was to serve in the office of president more than 
 one year in the term of three years ; to ascertain 
 the necessary sums for the public service, and to 
 appropriate the same for defraying the public ex- 
 penses; to borrow money and emit bills on credit of 
 the United States; to build and equip a navy; to 
 agree upon the number of land forces, and make 
 requisitions upon each state for its quota, in pro- 
 portion to the number of white inhabitants in such 
 state. The legislatures of each state were to ap- 
 point the regimental officers, raise the men, and 
 clothe, arm, and equip them at the expense of the 
 United States. 
 
 Congress was also invested with power to adjourn 
 for any time not exceeding six months, and to any 
 place within the United States; and provision was 
 made for the publication of its Journal, and for en- 
 tering the yeas and nays thereon when desired by 
 any delegate. 
 
 Such were the powers confided in congress. But 
 even these were greatly restricted in their exercise ; 
 for it was expressly provided that congress should 
 never engage in a war ; nor grant letters of marque 
 or reprisal in time of peace; nor enter into any 
 treaties or alliances ; nor coin money or regulate 
 the value thereof; nor ascertain the sums or ex- 
 penses necessary for the defence and welfare of the 
 United States; nor emit bills; nor borrow money 
 on the credit of the United States; nor appropriate 
 money; nor agree upon the number of vessels of 
 war to be built, or purchased, or the number of 
 land or sea forces to be raised ; nor appoint a com- 
 mander-in-chief of the army or navy; unless nine 
 states should assent to the same. And no question 
 on any other point, except for adjourning from day 
 to day, was to be determined, except by vote of the 
 majority of the states. 
 
 The committee of the states, or any nine of them, 
 were authorized in the recess of congress to exercise 
 such powers as congress, with the assent of nine 
 states, should think it expedient to vest them with, 
 except powers for the exercise of which, by tho
 
 ARTICLES OF CONFEDERATION 250 ARTICLES OF IMPEACHMENT 
 
 articles of confederation, the assent of nine states 
 was required, which could not be thus delegated. 
 
 It was further provided that all bills of credit, 
 moneys borrowed, and debts contracted by or under 
 the authority of congress before the confederation, 
 should be a charge against the United States ; that 
 when land forces were raised by any state for the 
 common defence, all officers of or under the rank of 
 colonel should be appointed by the legislature of the 
 state, or in such manner as the state should direct ; 
 and all vacancies should be filled up in the same 
 manner ; that all charges of war, and all other ex- 
 penses for the common defence or general welfare, 
 should be defrayed out of a common treasury, 
 which should be supplied by the several states, in 
 proportion to the value of the land within each state 
 granted or surveyed, and the buildings and im- 
 provements thereon, to be estimated according to the 
 mode prescribed by congress; and the taxes for 
 that proportion were to be laid and levied by the 
 legislatures of the states within the time agreed 
 upon by congress. 
 
 Certain prohibitions were laid upon the exercise 
 of powers by the respective states. No state, with- 
 out the consent of the United States, could send an 
 embassy to, or receive an embassy from, or enter 
 Into any treaty with any king, prince, or state ; nor 
 could any person holding any office under the 
 United States, or any of them, accept any present, 
 emolument, office, or title from any foreign king, 
 prince, or state; nor could congress itself grant any 
 title of nobility. No two states could enter into any 
 treaty, confederation, or alliance with each other, 
 without the consent of congress. No state could lay 
 any imposts or duties which might interfere with 
 any proposed treaties. No vessels of war were to 
 be kept up by any state in time of peace, except 
 deemed necessary by congress for its defence or 
 trade ; nor any body of forces, except as should be 
 deemed requisite by congress to garrison its forts 
 and necessary for its defence. But every state was 
 required always to keep up a well-regulated and 
 disciplined militia, sufficiently armed and accoutred, 
 and to be provided with suitable field-pieces, and 
 tents, and arms, and ammunition, and camp equi- 
 page. No state could engage in war without the 
 consent of congress, unless actually invaded by 
 enemies or in danger of invasion by the Indians. 
 Nor could any state grant commissions to any ships 
 of war, nor letters of marque and reprisal except 
 after a declaration of war by congress, unless such 
 state were infested by pirates, and then subject to 
 the determination of congress. No state could pre- 
 vent the removal of any property imported into any 
 state to any other state, of which the owner was an 
 inhabitant. And no imposition, duties, or restric- 
 tion could be laid by any state on the property of 
 the United States or of either of them. 
 
 There was also provision made for the admission 
 of Canada into the Union, and of other colonies, 
 with the assent of nine states. And it was finally 
 declared that every state should abide by the deter- 
 minations of congress on all questions submitted to 
 it by the confederation; that the articles should be 
 inviolably observed by every state ; that the union 
 should be perpetual ; and that no alterations should 
 be made in any of the articles, unless agreed to by 
 congress and confirmed by the legislatures of every 
 state. 
 
 ARTICLES OF IMPEACHMENT. Accusa- 
 tions in writing which form the basis of a 
 trial by impeachment. 
 
 They are called by Blackstone a kind of bills of 
 indictment, and perform the same office which an 
 indictment does in a common criminal case. They 
 do not usually pursue the strict form and accuracy 
 of an indictment, but are sometimes quite general 
 in the form of the allegations. Woodd. Lect. 605; 
 Sto. Const. 5th ed. § 807; Com. Dig. Parliament, L. 
 21; Foster, Cr. L. 389. They should, however, con- 
 tain so much certainty as to enable a party to put 
 himself on the proper defence, and in case of an ac- 
 quittal to avail himself of it as a bar to another 
 impeachment. Additional articles may perhaps be 
 
 exhibited at any stage of the proceedings ; Rawle, 
 Const. 216. 
 
 The answer to articles of impeachment need not 
 observe great strictness of form; and it may con- 
 tain arguments as well as facts. It is usual to give 
 a full and particular answer to each article of the 
 accusation ; Story, Const. 5th ed. § 810; Jeff. Man. 
 § 53. See Impeachment. 
 
 ARTICLES OF PARTNERSHIP. A writ- 
 ten agreement by which the parties enter in- 
 to a partnership upon the conditions therein 
 mentioned. 
 
 These are to be distinguished from agreements to 
 enter into a partnership at a future time. By arti- 
 cles of partnership a partnership is actually estab- 
 lished; while an agreement for a partnership is 
 merely a contract, which may be taken advantage 
 of in a manner similar to other contracts. Where 
 an agreement to enter into a partnership is broken, 
 an action lies at law to recover damages; and 
 equity, in some cases, to prevent frauds or mani- 
 festly mischievous consequences, will enforce spe- 
 cific performance; Story, Partn. §109; 3 Atk. 383; 
 1 Swanst. 513, n. ; Lindl. Partn. *475 ; 17 Beav. 
 294 ; but not when the partnership may be immedi- 
 ately dissolved ; 9 Ves. Ch. 360. Specific perform- 
 ance was decreed in "Whitworth v. Harris, 40 Miss. 
 483; Birchett v. Boiling, 5 Munf. (Va.) 442; and 
 refused in Wadsworth v. Manning, 4 Md. 60. See 
 8 Beav. 129; 30 id. 376. 
 
 The instrument should contain the names 
 of the contracting parties severally set out; 
 the agreement that the parties do by the 
 instrument enter into a partnership, express- 
 ed in such terms as to distinguish it from a 
 covenant to enter into partnership at a sub- 
 sequent time ; the date, and necessary stip- 
 ulations, some of the more common of which 
 follow. 
 
 The commencement of the partnership 
 should be expressly provided for. The date 
 of the articles is the time, when no other 
 time is fixed by them ; 5 B. & C. 10S ; Lindl. 
 Part. (2d Am. Ed.) *201, *412; Ingraham v. 
 Foster, 31 Ala. 123 ; Beaman v. Whitney, 20 
 Me. 413; Everit v. Watts, 10 Paige (N. Y.) 
 82; if not dated, parol evidence is admis- 
 sible to show that they were not intended to 
 take effect at the time of their execution; 
 17 C. B. 625. 
 
 The duration of the partnership should be 
 stated. It may be for life, for a limited pe- 
 riod of time, or for a limited number of ad- 
 ventures. When a term is fixed, it endures 
 until that period has elapsed ; when no term 
 or limitation is fixed, the partnership may 
 be dissolved at the will of either partner; 
 17 Ves. 298; Carlton v. Cummins, 51 Ind. 
 478 ; McElvey v. Lewis, 76 N. Y. 373 ; Lindl. 
 Partn. *121, *413 ; see Williams v. Ins. Co., 
 150 Pa. 20, 24 Atl. 346. Dissolution follows 
 immediately and inevitably on the death of 
 a partner ; Hoard v. Clum, 31 Minn. 186, 17 
 N. W. 275 ; but provision may be made for 
 the succession of the executors or adminis- 
 trators or a child or children of a deceased 
 partner to his place and rights; Burwell v. 
 Cawood, 2 How. (U. S.) 560, 11 L. Ed. 378; 
 Powell v. Hopson, 13 La. Ann. 626; 9 Ves. 
 Ch. 500. Where a provision is made for a 
 succession by appointment, and the partner
 
 ARTICLES OF PARTNERSHIP 251 ARTICLES OF PARTNERSHIP 
 
 dies without appointing, his executors or ad- 
 ministrators may continue the partnership 
 or not, at their option; 1 McClel. & Y. 579 ; 
 Coll. Ch. 157. A continuance of the part- 
 nership beyond the period fixed for its ter- 
 mination will, in the absence of circumstanc- 
 es showing intent, be implied to be upon the 
 basis of the old articles; U. S. Bank v. BJn- 
 ney, 5 Mas. 176, 185, Fed. Cas. No. 1C,791 ; 15 
 Ves. Ch. 218; 1 Moll. Ch. 4CG ; but it will 
 be considered as at will, and not as renewed 
 for a further definite period ; 17 Yes. 307. 
 
 Persons dealing with a partnership are 
 not bound by any stipulation as to its dis- 
 solution or continuance, unless they have ac- 
 tual notice before making contracts with the 
 firm; St. Louis Electric Lamp Co. v. Mar* 
 shall, 78 Ga. 1GS, 1 S. E. 430; Central Nat 
 Bank v. Frye, 148 Mass. 49S, 20 N. E. 325. 
 
 The nature of the business and the place 
 of carrying it on should be very carefully 
 and exactly specified. Courts of equity 
 will grant an injunction when one or more 
 of the partners attempt, against the wishes 
 of one or more of them, to extend such busi- 
 ness beyond the provision contained in the 
 articles; Story, Partn. § 193; Abbot v. John- 
 son, 32 N. H. 9; Livingston v. Lynch, 4 
 Johns. Ch. (N. Y.) 573. 
 
 The name of the firm should be expressed. 
 The members of the partnership are required 
 to use the name thus agreed upon, and a de- 
 parture from it will make them individually 
 liable to third persons or to their partners, 
 in particular cases ; Lindl. Partn. *413 ; 2 
 Jac. & W. 266 ; 9 Ad. & E. 314 ; Story, Partn. 
 §■§ 102, 136, 142, 202; Crawford v. Collins, 
 45 Barb. (N. Y.) 269. 
 
 The management of the business, or of 
 some particular branch of it, is frequently 
 intrusted by stipulation to one partner, and 
 such partner will be protected in his rights 
 by equity ; Story, Partn. §§ 172, 182, 193, 202 ; 
 and see La. Civ. Code art 2838; Pothier, 
 SociCtC, n. 71; Dig. 14, 1, 1, 13; Pothier, 
 Pand. 14, 1, 4 ; or it may be to a majority of 
 the partners, and should be where they are 
 numerous. See Partners. 
 
 The manner of furnishing capital and 
 stock should be provided for. When a part- 
 ner is required to furnish his proportion of 
 the stock at stated periods, or pay by in- 
 stalments, he will, where there are no stip- 
 ulations to the contrary, be considered a 
 debtor to the firm; Story, Partn. §203; 1 
 Swanst. S9. As to the fulfillment of some 
 conditions precedent by a partner, such as 
 the payment of so much capital, etc., see 
 Lindl. Partn. *416 ; 1 'Wins. Saund. 320 o. 
 Sometimes a provision is inserted that real 
 estate and fixtures belonging to the firm 
 shall be considered, as between the partners, 
 not as partnership but as several property ; 
 1 App. Cas. 181 ; Rushing v. People, 42 Ark. 
 390; Stumph v. Bauer, 76 Ind. 157; Clem- 
 ents v. Jessup, 36 N. J. Eq. 509. In cases of 
 
 bankruptcy, this property will be treated as 
 the separate property of the partn* 
 yer, Partn. §§ 905, 909 ; 5 
 63. 
 
 The apportionment of profits and 
 should be provided for. The law distributes 
 these equally, in the absence of controlling 
 circumstances, without regard to the capital 
 furnished by each; Story, Partn. 24; 3 Kent 
 28; Gould v. Gould, Wend. (N. Y.) 
 But see 7 Bligh 432; 5 Wila & S. L6; 20 
 Beav. 98; Hyatt v. Robinson, 15 Ohio, 399. 
 
 Yery frequently the articles provide for 
 the division of profits and determine the 
 proportion in which each partner takes his 
 share. There is nothing to prevent their 
 making any bargain on this subjeet that they 
 see fit to make; Pars. Partn. § 172. 
 
 Periodical accounts of the property of the 
 partnership may be stipulated for. 'i 
 when settled, are at least prima fm-ie evi- 
 dence of the facts they contain; 7 Siin. 239. 
 It is proper to stipulate that an account set- 
 tled shall be conclusive; Lindl. I'artn. *420. 
 
 The expulsion of a partner for gross mis- 
 conduct, bankruptcy, or other specified caus- 
 es may be provided for; and the provision 
 will govern, when the case occurs. See 10 
 Hare 493; L. R. 9 Ex. 190; Pars. I'artn. 169, 
 n; Patterson v. Silliman, 28 Pa. 304. 
 
 A settlement of the affairs of the partner- 
 ship should always he provided for. It is 
 generally accomplished in one of the three 
 following ways: first, by turning all the as- 
 sets into cash, and, after paying all the lia- 
 bilities of the partnership, dividing such 
 money in proportion to the several inl 
 of the parties; or, second, by providing that 
 one or more of the partners shall be entitled 
 to purchase the shares of the others at a 
 valuation; 20 Beav. 442; or, third, that all 
 the property of the partnership shall be ap- 
 praised, and that after paying the partner- 
 ship debts it shall be divided in the proper 
 proportions. The first of these modes is 
 adopted by courts of equity in the absence of 
 express stipulations; Lindl. Partn. L'd Am. 
 ed. (Bwell) *429; Story, Partn. §207; S Sim. 
 529; but see 6 Madd. 146; 3 Hare 581. 
 Where partnership accounts have been fully 
 settled, an express promise by one to pay 
 the balance due to another is not necessary; 
 Sears v. Starbird, 78 Cal. 225, 20 Pac. 547. 
 
 Submission of disputes to arbitration is 
 provided for frequently, but such a elause 
 is nugatory, as no action will lie for a 
 breach; Story, Partn. § 215; and (except in 
 England, under Com. L. Proc. Act, 1854) it 
 is no defence to an action relative to the mat- 
 ter to be referred; Pars. Partn. 170; see 
 Lindl. rartn. - 2d Am. ed. (Ewell) *451. Where 
 the settlement of partnership accounts is 
 made by arbitrators without fraud, it will 
 not be disturbed : Abell's Adm'r v. Phillips 
 (Ky.1 IS S. NY. 109. 
 
 The articles should be executed by the
 
 ARTICLES OF PARTNERSHIP 252 
 
 ARTIFICIAL 
 
 parties, but need not be under seal. See Par- 
 ties; Partners; Partnership. 
 
 ARTICLES OF THE PEACE. A com- 
 plaint made before a court of competent ju- 
 risdiction by one wbo bas just cause to fear 
 that an injury to his person or property is 
 about to be committed or caused by the par- 
 ty complained of, alleging the causes of his 
 belief, and asking the protection of the court. 
 
 The object of articles is to compel the 
 party complained of to find sureties of the 
 peace. This will be granted when the articles 
 are on oath; 12 Mod. 243; 12 Ad. & E. 599; 
 unless the articles on their face are false; 
 2 Burr. 80G ; 3 id. 1922 ; or are offered un- 
 der suspicious circumstances; 2 Str. 835; 1 
 W. Bla. 233. Their truth cannot be contro- 
 verted by affidavit or otherwise; but excep- 
 tion may be taken to their sufficiency, or af- 
 fidavits for reduction of the amount of bail 
 tendered; 2 Str. 1202; 13 East 171. See 
 Good Behavior; Peace. 
 
 ARTICLES OF SEPARATION. See Sepa- 
 ration. 
 
 ARTICLES OF WAR. The code of laws 
 established for the government of the army. 
 
 The term is used in this sense both in 
 England and the United States. The term 
 also includes the code established for the 
 government of the navy. See R. S. U.' S. § 
 1342, as to the army, and § 1624, as to the 
 navy. 
 
 The constitution, art. 1, § 8, provides that 
 Congress shall have power "to make rules 
 for the government and regulation of the 
 land and naval forces." 
 
 See Military Law; Martial Law; 
 Courts-Martial; Regulations of the Ar- 
 my; Rank. 
 
 ARTICULI CLERI. These articles (Edw. 
 II.) were an attempt to delimit accurately 
 the spheres of the lay and ecclesiastical ju- 
 risdictions, and were the basis of all subse- 
 quent legislation upon this subject during the 
 mediaeval period. 2 Holdsw. Hist E. L. 253. 
 See Circumspecte Agatis. 
 
 ARTIFICER. One who buys goods in or- 
 der to reduce them by his own art, or in. 
 dustry, into other forms, and then to sell 
 them. Lansdale v. Brashear, 3 T. B. Mon. 
 (Ky.) 335. 
 
 The term applies to those who are actually 
 and personally engaged or employed to do 
 mechanical work or the like, and not to those 
 taking contracts for labor to be done by oth- 
 ers ; 7 El. & Bl. 135. 
 
 ARTIFICIAL. Having its existence in 
 the given manner by virtue of or in consid- 
 eration only of the law. 
 
 Artificial person. A subject of duties and 
 rights which is represented by one or more 
 natural persons (generally, not necessarily, 
 by more than one) but does not coincide 
 with them. It has a continuous legal exist- 
 
 ence not necessarily depending on any natu- 
 ral life; this legal continuity answers to 
 some real continuity of public functions or 
 of special purpose recognized as having pub- 
 lic utility or of some lawful common interest 
 of the natural persons concerned. Pollock, 
 First Book of Jurispr. 112. See Corpora- 
 tion. 
 
 A body, company, or corporation consider- 
 ed in law as an individual. Trustees of Dart- 
 mouth College v. Woodward, 4 Wheat. (U. 
 S.) 518, 4 L. Ed. 629. 
 
 AS (Lat.). A pound. 
 
 It was composed of twelve ounces. The parts were 
 reckoned (as may be seen in the law, Servum de 
 hmredibus, Inst. lib. xili. Pandect) as follows: uncia, 
 1 ounce; sextans, 2 ounces; triens, 3 ounces; qua- 
 drans, 4 ounces; quincunx, 5 ounces; semis, 6 
 ounces; septunx, 7 ounces; lies, 8 ounces; dodrans, 
 9 ounces; dextans, 10 ounces; deunx, 11 ounces. 
 
 The whole of a thing; solidum quid. 
 Thus, as signified the whole of an inheritance: so 
 that an heir ex asse was an heir of the whole in- 
 heritance. An heir ex triente, ex semisse, ex besse, 
 ex deunce, was an heir of one-third, one-half, two- 
 thirds, or eleven-twelfths. 
 
 ASCENDANTS. Those from whom a per- 
 son is descended, or from whom he derives 
 his birth, however remote they may be. See 
 Consanguinity. 
 
 Every one has two ascendants at the first degree, 
 his father and mother; four at the second degree, 
 his paternal grandfather and grandmother, and his 
 maternal grandfather and grandmother; eight at 
 the third. Thus, in going up we ascend by various 
 lines, which fork at every generation. By this 
 progress sixteen ascendants are found at the fourth 
 degree; thirty-two, at the fifth, sixty-four, at the 
 sixth ; one hundred and twenty-eighth, at the sev- 
 enth, and so on. By this progressive increase, a 
 person has at the twenty-fifth generation thirty- 
 three million five hundred and fifty-four thousand 
 four hundred and thirty-two ascendants. But, as 
 many of the ascendants of a person have descended 
 from the same ancestor the lines which were fork- 
 ed reunite to the first common ancestor, from whom 
 the other descends ; and this multiplication, thus 
 frequently interrupted by the common ancestors, 
 may be reduced to a less number. 
 
 ASCERTAIN. To make certain by exam- 
 ination ; to find out. The word ascertained 
 is held to have two meanings: (1) known; 
 (2) made certain. L. R. 2 P. & D. 365. 
 
 ASCRIPTICIUS. One enrolled; foreigners 
 who have been enrolled. Among the Romans, 
 ascripticii were foreigners who had been nat- 
 uralized, and who had in general the same 
 rights as natives. Nov. 22, c. 17; Cod. 11, 
 47. 
 
 A man bound to the soil but not a slave. 
 2 Holdsw. Hist. E. L. 217. See Adscripticii. 
 
 ASEXUALIZATION. See Vasectomy. 
 
 ASIDE. On one side; apart. To set 
 aside. To annul ; to make void. State v. 
 Primm, 61 Mo. 171. 
 
 ASPHYXIA. In Medical Jurisprudence. 
 Suspended animation and death produced by 
 non-conversion of the venous blood of the 
 lungs into arterial. 
 
 This term applies to the situation of persons who 
 have been asphyxiated by submersion or drowning;
 
 ASPHYXIA 
 
 253 
 
 ASSAULT 
 
 by breathing mepbitic gas ; by suspension or 
 strangulation. In a legal point of view, it is always 
 proper to ascertain whether the person who has 
 thus been deprived of his senses is the victim of 
 another, whether the injury has been caused by ac- 
 cident, or whether it is the act of the sufferer him- 
 self. See 1 Hamilton, Leg. Med. 113, 120; 1 Wh. & St. 
 Med. Jur. DIM; Death. 
 
 ASPORTATION (Lat. asportatio). The 
 act of carrying a thing away; the removing 
 a thing from one place to another. 
 
 The carrying away of a chattel which one 
 is accused of stealing. See Labceky. 
 
 ASSART, ESSART. A piece of forest land 
 converted into arable land by grubbing up 
 the trees and brushwood. New Diet. 
 
 ASSART RENTS. Rents paid to the 
 Crown for assarted lands. New Diet. 
 
 ASSASSINATION. Murder committed for 
 hire, without provocation or cause of resent- 
 ment given to the murderer by the person 
 upon whom the crime is committed. Erskine, 
 Inst. b. 4, t. 4, n. 45. 
 
 A murder committed treacherously, with 
 advantage of time, place, or other circum- 
 stances. 
 
 ASSAULT. An unlawful offer or attempt 
 with force or violence to do a corporeal hurt 
 to another. 
 
 Force unlawfully directed or applied to 
 the person of another under such circum- 
 stances as to cause a well-founded appre- 
 hension of immediate peril. Bish. Cr. Law 
 54S. 
 
 Aggravated assault is one committed with 
 the intention of committing some additional 
 crime. Simple assault is one committed with 
 no intention to do any other injury. 
 
 Assault is generally coupled with battery, and for 
 the excellent practical reason that they generally 
 go together; but the result is rather the initiation 
 or offer to commit the act of which the battery is 
 the consummation. An assault is included in every 
 battery ; 1 Hawk. PI. Cr. c. 62, § 1. 
 
 Where a person is only assaulted, still the. form of 
 the declaration is the same as where there has been 
 a battery, "that the defendant assaulted, and beat, 
 bruised, and wounded the plaintiff;" 1 Saund. 6th 
 ed. 14 a. The word "ill-treated" is frequently in- 
 serted: and if the assaulting and ill-treating are 
 Justified in the plea, although the beating, bruising, 
 and wounding are not, yet it is held that the plea 
 amounts to a justification of the battery; 7 Taunt. 
 689 ; 1 J. B. Moore 4H0. So where the plaintiff de- 
 clared, In trespass, for assaulting him, seizing and 
 laying hold of him, and imprisoning him, and the 
 defendant pleaded a justification under a writ of 
 capias, it was held, that the plea admitted a bat- 
 tery; 3 M. & W. 28. But where in trespass for as- 
 saulting the plaintiff, and throwing water upon him, 
 and also wetting and damaging his clothes, the de- 
 fendant pleaded a justification as to assaulting the 
 plaintiff and wetting and damaging his clothes, it 
 was held, that, though the declaration alleged a 
 battery, yet the matter justified by the plea did not 
 amount to a battery; 8 Ad. & E. 602. 
 
 Any act causing a well-founded apprehen- 
 sion of immediate peril from a force already 
 partially or fully put in motion is an assault ; 
 4 C. & P. 349; 9 id. 4S3, 62G; Com. v. White, 
 110 Mass. 407 ; State v. Davis, 23 N. C. 125, 
 35 Am. Dec. 735; State v. Crow, 23 N. C. 
 
 375 ; Com. v. Eyre, 1 S. & R. (Pa.) 347 ; State 
 v. Sims, 3 Strohh. (S. C.) L37; 
 Blackwell, 9 Ala. 79: Dnib I States v. B 
 2 Wash. C. C. 435, Fed. < " . un- 
 
 less justifiable. But if justifiable, then it is 
 not necessarily either a batti 
 sault. Whether the act, therefore, in any 
 particular case is an assault and bath 
 B gentle imposition of hands, or applii 
 of force, depends upon the question whether 
 there was justifiable cause. If. i 
 the evidence fails t<> show the act to have 
 been unjustifiable, or leaves that question in 
 doubt, the criminal act is Dot proved; Com. v. 
 McKie, l Gray (Mass.) 63, 64, 61 Am. Dec. 
 410. Any threatening gesture, showing La 
 itself, or by words accompanying it. an Im- 
 mediate intention coupled with ability to 
 commit a battery, is an assault; Flournoy 
 v. State, 25 Tex. App. 244, 7 S. W. 865 : 
 v. State, 85 Ala. 11, 4 South. 730; 13 O. B. 
 SCO; People v. Lilley, 4.", Mich. 527, 5 N. W. 
 982.; but an approach with gesticulations and 
 menaces was held not an assault; Berkeley 
 v. Com., 8S Va. 1017, 14 S. E. 91G ; words 
 are not legal provocation to justify an as- 
 sault and battery ; State v. Workman, 39 S. 
 C. 151, 17 S. E. 094; Willey v. Carpenter, G4 
 Vt 212, 23 Atl. 630, 15 L. K. A. 853. It is 
 an assault where one strikes at another with 
 a stick without hitting him; 1 Hawk. PL Cr. 
 110. Shooting into a crowd is an assault up- 
 on each member of the crowd; Scott v. 
 State, 49 Ark. 15G, 4 S. W. 750; an officer 
 is guilty of an assault in shooting at a flee- 
 ing prisoner, who had been arrested for mis- 
 demeanor, whether he intended to hit the 
 prisoner or not ; State v. Sigman, 106 N. C. 
 728, 11 S. E. 520. 
 
 Generally speaking "consent to an assault 
 is no justification," and "an injury, even in 
 sport, would be an assault if it went bi 
 what was admissible in sports of the 
 and was intentional"; McNeil v. Mullin, 7<i 
 Kan. 034, 79 Pac. 16S, quoting Cooley, Torts 
 163; Willey v. Carpenter, 64 Vt. 212, 23 Atl. 
 630, 15 L. R. A. S53, and note; Poll. Torts 
 157; Grotton v. Glidden, 84 Me. 589, 24 Atl. 
 100S, 30 Am. St Rep. 413. But there are ex- 
 ceptions, as where the essence of the offense 
 is its being against the consent, as in rape 
 (a. v.). And consent to vaccination may be 
 implied from conduct so that no assault is 
 committed; O'Brien V. S. S. Co., 154 Mass. 
 272, 28 N. E. 206, 13 L. R. A. 329. 
 
 It is not an assault for a beadle to turn 
 out of church a man who is disturbing the 
 service, if without unnecessary violence; 
 [1893] 1 Q. B. 142; or for the master of a 
 house to expel one who comes into his house 
 and disturbs the peace of the family; 3 C. 
 & K. 25. 
 
 If a teacher take indecent liberties with a 
 female scholar, without her consent, though 
 she does not resist, it is an assault; 6 Cox, 
 Cr. Cas. 64 ; 9 C. & P. 722 ; Ridout v. State,
 
 ASSAULT 
 
 254 
 
 ASSAULT 
 
 6 Tex. App. 249. So, if a medical practition- 
 er unnecessarily strips a female patient nak- 
 ed, under the pretence that he cannot other- 
 wise judge of her illness, it is an assault, if 
 he assisted to take oft* her clothes ; 1 Moody 
 19; 1 Lew. 11. Where a medical man had 
 connection with a girl fourteen years of age, 
 under the pretence that he was thereby treat- 
 ing her professionally, she making no resist- 
 ance solely from the belief that such was 
 the case, it was held that he was properly 
 convicted of an assault; 1 Den. Cr. Cas. 5S0; 
 4 Cox, Cr. Cas. 220 ; Tempi. & M. 218. But 
 an attempt to commit the misdemeanor of 
 having carnal knowledge of a girl between 
 ten and twelve years old, is not an assault, 
 by reason of the consent of the girl; 8 C. & 
 P. 574, 5S9; 7 Cox, Cr. Cas. 145. And see 
 1 Den. Cr. Cas. 377 ; 2 C. & K. 957 ; 3 Cox, 
 Cr. Cas. 266. But it has been held that one 
 may be convicted of an assault upon the per- 
 son of a girl under ten years of age with in- 
 tent to commit a rape, whether she consented 
 or resisted ; People v. Gordon, 70 Cal. 467, 11 
 Pac. 762. One is not guilty of an assault if 
 he takes hold of a woman's hand and puts 
 his arm around her shoulder, unless he does 
 so without her consent or with an intent to 
 injure her ; Crawford v. State, 21 Tex. App. 
 454, 1 S. W. 446. One is guilty of assault and 
 battery who delivers to another a thing to be 
 eaten, knowing that it contains a foreign 
 substance and concealing the fact, if the oth- 
 er, in ignorance, eats it and is injured ; Com. 
 v. Stratton, 114 Mass. 303, 19 Am. Rep. 350; 
 but see 2 C. & K. 912 ; 1 Cox, Cr. Cas. 281 ; 
 People v. Quin, 50 Barb. (N. Y.) 128. An 
 unlawful imprisonment is also an assault; 
 1 Hawk. PI. Cr. c. 62, § 1. A negligent at- 
 tack may be an assault ; Whart. Cr. L. § 603. 
 See Steph. Dig. Cr. L. § 243. 
 
 A teacher has a right to punish a pupil 
 for misbehavior ; but this punishment must 
 be reasonable and proportioned to the grav- 
 ity of the pupil's misconduct; and must be 
 inflicted in the honest performance of the 
 teacher's duty, not with the mere intent of 
 gratifying his ill-will or malice. If it is un- 
 reasonable and excessive, is inflicted with 
 an improper weapon, or is disproportioned to 
 the offence for which it is inflicted, it is an 
 assault; Vanvactor v. State, 113 Ind. 276, 
 15 N. E. 341, 3 Am. St. Rep. 645 ; State v. 
 Stafford, 113 N. C. 635, 18 S. E. 256 ; Spear 
 v. State (Tex.) 25 S. W. 125. The punishment 
 must be for some specific offence which the 
 pupil has committed, and which he knows he 
 is punished for ; State v. Mizner, 50 la. 145, 
 32 Am. Rep. 128. If a person over the age 
 of 21 voluntarily attends school, he thereby 
 waives any privilege which his age confers, 
 and may be punished for misbehavior as any 
 other pupils; State v. Mizner, 45 la. 248, 
 24 Am. Rep. 769. A teacher has no right, 
 however, to punish a child for neglecting or 
 refusing to study certain branches from 
 
 which the parents of the child have request- 
 ed that it might be excused, or which they 
 have forbidden it to pursue, if those facts 
 are known to the teacher. The proper rem- 
 edy in such a case is to exclude the pupil 
 from the school ; State v. Mizner, 50 la. 145, 
 32 Am. Rep. 12S; Morrow v. Wood, 35 Wis. 
 59, 17 Am. Rep. 471. 
 
 The teacher has in his favor the presump- 
 tion that he has only done his duty, in addi- 
 tion to the general presumption of inno- 
 cence; Vanvactor v. State, 113 Ind. 276, 15 
 N. E. 341, 3 Am. St. Rep. 645 ; State v. Miz- 
 ner, 50 la. 145, 32 Am. Rep. 128 ; and in de- 
 termining the reasonableness of the punish- 
 ment, the judgment of the teacher as to what 
 was required by the situation should have 
 weight; Vanvactor v. State, 113 Ind. 276, 15 
 N. E. 341, 3 Am. St. Rep. 645. When a prop- 
 er instrument has been used, the character of 
 the chastisement, as regards its cruelty or 
 excess, must be determined by considering 
 the nature of the offence for which it was 
 inflicted, the age, physical and mental con- 
 dition, as well as the personal attributes of 
 the pupil, and the deportment of the teach- 
 er; Vanvactor v. State, 113 Ind. 276, 15 N. 
 E. 341, 3 Am. St. Rep. 645 ; Dowlen v. State, 
 14 Tex. App. 61 ; and since the legitimate ob- 
 ject of chastisement is to inflict punishment 
 by the pain which it causes, as well as the 
 degradation it implies, it does not follow that 
 chastisement was cruel or excessive because 
 pain was caused or abrasions of the skin re- 
 sulted from the use of a switch by the teach- 
 er; Vanvactor v. State, 113 Ind. 276, 15 N. 
 E. 341, 3 Am. St Rep. 645. 
 
 A teacher will be liable for prosecution, if 
 he inflict such punishment as produces or 
 threatens lasting mischief, or if he inflict 
 punishment, not in the honest performance 
 of duty, but under the pretext of duty to 
 gratify malice; State v. Pendergrass, 19 N. 
 C. 365, 31 Am. Dec. 416 ; State v. Long, 117 
 N. C. 791, 23 S. E. 431. But a charge to the 
 jury that "malice means bad temper, high 
 temper, quick temper ; and if the injury was 
 inflicted from malice, as above defined, then 
 they should convict the defendant," is erro- 
 neous ; for malice may exist without temper, 
 and may not exist although the act be done 
 while under the influence of temper, bad, 
 high or quick. General malice, or malice 
 against all mankind, "is wickedness, a dis- 
 position to do wrong, a black and diabolical 
 heart, regardless of social duty, and fatally 
 bent on mischief." Particular malice is "ill- 
 will, grudge, a desire to be revenged on a 
 particular person." This distinction should 
 be explained to the jury, and the term "mal- 
 ice" should be accurately defined ; State v. 
 Long, 117 N. C. 791, 23 S. E. 431. See Bat- 
 teby; Mental Suffering; Correction; 
 ScnooL ; Whipping. 
 
 ASSAY. See Annual Assay.
 
 ASSAY OFFICE 
 
 255 
 
 ASSENT 
 
 ASSAY OFFICE. An establishment, or de- 
 partment, in which the manipulations attend- 
 ing the assay of bullion and coins are con- 
 ducted. 
 
 Assay offices are from time to time estab- 
 lished by law at various points throughout 
 the country, usually in connection with the 
 branch minis, though the main assay of- 
 fice' is in New York. R. S. § 3553 provides 
 that the business of the assay office at New 
 York shall be in all respects similar to thai 
 of the mints, except that bars only, and not 
 coin, shall be manufactured therein; and no 
 metals shall ho purchased for minor coinage. 
 All bullion Intended by the depositor to ho 
 converted into coins of the United S 
 and silver bullion purchased for coinage, 
 when assayed, parted, ami refined, and its 
 net value certified, shall be transferred to 
 the mint at Philadelphia, under bucd direc- 
 tions as shall be made by the Secretary of 
 the Treasury, at the expense of the contin- 
 gent fund of the mint, and shall be there 
 coined, and the proceeds returned to the as- 
 say office. 
 
 Sec. 355S provides that the business of the 
 mint at Denver, while conducted as an assay 
 office, that of the assay office at Boise City, 
 and that of any other assay offices hereafter 
 established, shall be confined to the receipt 
 of gold and silver bullion, for melting and 
 assaying, to be returned to depositors of 
 the same, in bars, with the weight and fine- 
 ness stamped thereon. 
 
 The assay office is also subject to the laws 
 and regulations applied to the mint; R. S. 
 § 3562. 
 
 ASSECU RATION. In European Law. As- 
 surance; insurance of a vessel, freight, or 
 cargo. Opposition to the decree of Grenoble. 
 Ferriere. 
 
 ASSECURATOR. An insurer. 
 
 ASSEMBLY. The meeting of a number of 
 persons in the same place. An assembly of 
 persons would seem to mean three or more. 
 40 S. J. 481. 
 
 Political assemblies are those required by 
 the constitution and laws: for example, the 
 general assembly, which includes the senate 
 and house of representatives. The meeting 
 of the electors of the president and vice-' 
 president of the United States may also be 
 called an assembly. 
 
 Popular assemblies are those where the 
 people meet to deliberate upon their rights; 
 these are guaranteed by the constitution. U. 
 S. Const Amend, art. 1. 
 
 Unlawful assembly is the meeting of three 
 or more persons to do an unlawful act, al- 
 though they may not carry their purpose into 
 execution. CI. Cr. Law. 341. 
 
 It differs from a riot or rout, because In each of 
 the latter cases there is some act done besides the 
 simple meeting. See State v. Stalcup. 23 N. C. 30, 
 35 Am. Dec. 732 ; S C. & P. 91, 431 ; 1 Blsh. Cr. L. ( 
 535; 2 id. f 1256; Mkktlnq. 
 
 ASSENT. Approval of something done. 
 An undertaking to do something in compli- 
 ance with a request 
 
 In strictness, assent is to be distinguished from 
 consent, which denotes a will 
 
 about to be done, be done ; , compliance 
 
 with, or receipt of, something offered; 
 rendering valid something done without authority ; 
 and approval, an expression of satisfaction with 
 some act done for the benefit of another beside the 
 party approving. But in practice the term is often 
 :n the sense of acceptance and approval. 
 Thus, an offer is said to be assented to, although 
 properly an offer and acceptance comph te an agree- 
 ment, it is apprehended that this confusion has 
 arisen from the fact that a request, assent, and con- 
 currence of the party a con- 
 s fully as an offer and acceptance. Thus, it 
 is said there must be a request on one sido, and as- 
 sent on the other, in every contract; C 
 75; and this assent becomes a promise enforceable 
 by the party requesting, when he has done any- 
 thing to entitle him to the right. Assent thus be- 
 comes in reality (so far as it is assent merely, and 
 not acceptance) an offer made in response to a re- 
 quest. Assent and approval, as applied to acts of 
 parliament and of congress, have become con- 
 founded from the fact that the bills of parliament 
 were originally requests from parliament to the 
 king. See 1 Bla. Com. 183. 
 
 Express assent is that which is openly de- 
 clared. Implied assent is that which is pre- 
 sumed by law. 
 
 I'niess express dissent is shown, accept- 
 ance of what it is for a person's b< n< 
 take, is presumed, as in the case of a con- 
 veyance of land; 3 p.. & Aid. .".1: Harrison 
 v. Trustees, 1^ .Mass. 4<',i ; p. ;,!■-,■ v. Owens, 
 3 N. C. 234; Treadwell v. Bulkley, 
 (Conn.) 395, 4 Am. Dec. 22.",; Jackson v. 
 Bodle, 20 Johns. (N. Y.) 184; Church \ 
 man, 15 Wend. (N. Y.) 65G, 30 Am. De 
 the assent (or acceptance) of the grantee to 
 the delivery of a deed by a person other than 
 the grantor, vests the title in him from the 
 time of the delivery by the grantor to that 
 .third person; O'Kelly v. O'Kolly. S Met.-. 
 (Mass.) 436; Hulick v. Scoril, 4 Gilm. (111.) 
 176; Buffum v. Green, 5 N. H. 71, 20 Am. 
 Dec. 5U2; Belden v. Carter, 4 Day (Conn.) 
 G6, 4 Am. Dec. 185; Jackson v. Bodle, 20 
 Johns. (N. Y.) 187; Wesson v. Stephens, 37 
 N. C. 557; 5 B. & C. 671; a devise which 
 draws after it no charge or risk of loss, is 
 presumed to have leon accepted by the dev- 
 isee; Brown v. Wood, 17 Mass. 7.".; Hannah 
 v. Swarner, 8 Watts (Pa.) i\ 34 Am. Dec. 
 442. 
 
 Assent must be to the same thing done or 
 offered in the same sense; Matlock v. Thomp- 
 son, 18 Ala. 605: Keller v. Yharru, 3 Cal. 
 147; Eliason v. Benshaw, 4 Wheat (U. S.) 
 225, 4 L. Ed. 556; 5 M. & W. 575; it must 
 comprehend the whole of the proposition, 
 must be exactly equal to its extent and pro- 
 visions, and must not qualify them by any 
 new matter; 5 M. & W. 535; Slav maker v. 
 Irwin, 4 Whart (Pa.) 369; Vassal v. Camp, 
 11 X. Y. 441. 
 
 In general, when an assignment is made 
 to one for the benefit of creditors, the assent 
 of the assignee will be presumed ; Skipwith's
 
 ASSENT 
 
 256 
 
 ASSESSMENT 
 
 Ex'r v. Cunningham, 8 Leigh (Va.) 272, 281, 
 31 Am. Dec. 612. But see Crosby v. Hillyer, 
 24 Wend. (N. Y.) 280; Welch v. Sackett, 12 
 Wis. 243. See Acceptance; Accord; Agree- 
 ment; Contract. 
 
 ASSERT. To state as true; declare; main- 
 tain. To assert against another has prob- 
 ably a prima facie meaning of a contradic- 
 tion of him, but the context or circumstanc- 
 es may show that it connotes a criminatory 
 charge; 7 L. J. Ex. 2GS. 
 
 ASSERTORY OATH. See Oath. 
 ASSESS. To rate or fix the proportion 
 which every person has to pay of any par- 
 ticular tax. To tax. To adjust the shares 
 of a contribution by several towards a com- 
 mon beneficial object according to the bene- 
 fit received. To fix the value of ; to fix the 
 amount of. 
 
 As used in a covenant to pay rates, etc., 
 "assessed" means "reckoned on the value." 
 66 L. J. Ch. 353 ; [1S97] 1 Ch. 633. 
 
 ASSESSMENT. Determining the value of 
 a person's property or occupation for the pur- 
 pose of levying a tax. 
 
 Determining the share of a tax to be paid 
 by each individual. 
 Laying a tax. 
 
 Adjusting the shares of a contribution by 
 several towards a common beneficial object 
 according to the benefit received. 
 
 An assessment is an official estimate of the 
 sums which are to constitute the basis of an 
 apportionment of a tax between the indi- 
 vidual subjects of taxation within the dis- 
 trict. It does not of itself lay the charge 
 upon either person or property, but is a step 
 preliminary thereto, and which is essential 
 to the apportionment ; Evansville & I. R, Co. 
 v. Hays, 118 Ind. 214, 20 N. E. 736. As the 
 word is more commonly employed, an assess- 
 ment consists in the two processes of listing 
 the persons, property, etc., to be taxed,' and of 
 estimating the sums which are to be the 
 guide in an apportionment of the tax be- 
 tween them; City of Chicago v. Fishburn, 
 189 111. 367, 59 N. E. 791 ; Pomeroy Coal Co. 
 v. Emlen, 44 Kan. 123, 24 Pac'340; State 
 v. R. Co., 54 S. C. 564, 32 S. E. 691. To as- 
 sess a tax is to determine what a taxpayer 
 shall contribute to the public; and to levy 
 a tax is to make a record of this determina- 
 tion and to extend the same against his prop- 
 erty; Chicago, B. & Q. R. Co. v. Klein, 52 
 Xeb. 258, 71 N. W. 1069. 
 
 A local assessment can only be levied upon 
 land. It cannot, as a tax can, be made a 
 personal liability of the taxpayer. A tax is 
 levied over a whole state, or a political sub- 
 division. A local assessment is levied on 
 property situated iu a district created for 
 the express purpose of the levy, and pos- 
 sessing no other existence than to be the 
 thing on which the levy is made. A tax is 
 a continuing burden; a local assessment is 
 
 exceptional both as to time and locality; it 
 is brought into being to accomplish a par- 
 ticular purpose. A tax is levied, collected, 
 and administered by a public agency; a lo- 
 cal assessment is made by an authority c& 
 extra. Yet it is like a tax in that it is im- 
 posed under an authority derived from the 
 legislature. It is like a tax in that it must 
 be levied for a public purpose, and must be 
 apportioned by some reasonable rule. It is 
 unlike a tax in that the proceeds must be 
 expended in an improvement from which a 
 benefit, clearly exceptive and plainly per- 
 ceived, must enure to the property upon 
 which it is imposed ; Town of Macon v. Pat- 
 ty, 57 Miss. 378, 34 Am. Rep. 451 (a leading 
 case). 
 
 Though local assessments are laid under 
 the taxing power, and are, in a certain sense, 
 taxes, yet they are a peculiar class of taxes, 
 and not within the meaning of that term as it 
 is usually employed ; Mayor, etc., of Birming- 
 ham v. Klein, 89 Ala. 461, 7 South. 3S6, 8 L. 
 R. A. 369; Holley v. County of Orange, 106 
 Cal. 420, 39 Pac. 790; Nichols v. City of 
 Bridgeport, 23 Conn. 1S9, 60 Am. Dec. 636; 
 City Council of Augusta v. Murphey, 79 Ga. 
 101, 3 S. E. 326; Dempster v. Chicago, 175 
 111. 278, 51 N. E. 710 ; Board of Com'rs of 
 Monroe County v. Harrell, 147 Ind. 500, 46 
 N. E. 124; Gosnell v. City of Louisville, 104 
 Ky. 201, 46 S. W\ 722 ; Jones v. City of Bos- 
 ton, 104 Mass. 461; Kansas City v. Bacon, 
 147 Mo. 259, 48 S. W. 860; Mann v. Jersey 
 City, 24 N. J. L. 662; City of Raleigh v. 
 Peace, 110 N. C. 32, 14 S. E. 521, 17 L. R. A. 
 330; Raymond v. City of Cleveland, 42 Ohio 
 St. 522; Beaumont v. Wilkes-Barre City, 
 142 Pa. 198, 21 Atl. 888; Heller v. City of 
 Milwaukee, 96 Wis. 134, 70 N. W. 1111 ; as 
 where a mining lease required a lessee to 
 pay taxes, duties and imposts on coal mined, 
 the mining improvements, and the surface 
 and coal land itself, it was held not to require 
 him to pay municipal assessments for paving 
 a street or constructing a sewer; Pettibone 
 v. Smith, 150 Pa. 118, 24 Atl. 693, 17 L. R. A. 
 423 ; and a devise requiring the life tenant 
 to pay all necessary taxes on the property 
 was held not to include assessments for sew- 
 ers and curbing; Chambers v. Chambers, 20 
 R. I. 370, 39 Atl. 243; Chamberlin v. Glea- 
 son, 163 N. Y. 214, 57 N. E. 487. But "taxes" 
 was held to include a sewer assessment in an 
 agreement to convey a good title to land free 
 from all mortgage encumbrances, taxes and 
 mechanic's liens; Williams v. Monk, 179 
 Mass. 22, 60 N. E. 394. 
 
 The power to make special assessments for 
 public improvements is 'within the taxing 
 power of the state ; People v. Mayor, etc., of 
 Brooklyn, 4 N. Y. 419, 55 Am. Dec. 266, note ; 
 People v. Pitt, 169 N. Y. 521, 62 N. E. 662, 58 
 L. R. A. 372. The authority may be exercis- 
 ed directly, or it may be left to local boards 
 or bodies; In re Piper, 32 Cal. 530; Kelly
 
 ASSESSMENT 
 
 257 
 
 ASSESSMENT 
 
 v. Chadwick, 104 La. 719, 29 South. 295; 
 People v. Buffalo, 147 N. Y. 675, 42 N. E. 344 
 (where assessors and not common council 
 were authorized to fix the district of assess- 
 ment for river dredging) ; but in the latter 
 case the determination will be by a body 
 possessing, for the purpose, legislative pow- 
 er, ^and whose action must be as conclusive 
 as if taken by the legislature itself; Cooley, 
 Taxation [3d ed.] 1207), where it is said the 
 two methods of apportionment between 
 which a choice is usually made are: 1. An 
 assessment made by assessors • or commis- 
 sioners, appointed for the purpoie under leg- 
 islative authority, who are to view the es- 
 tates and levy the expense in proportion to 
 the benefits which, in their opinion, the es- 
 tates respectively will receive from the work 
 proposed. 2. An assessment by some def- 
 inite standard fixed upon by the legislature 
 itself, which is applied to estates by a meas- 
 urement of length, quantity, or value. 
 
 An assessment will lie upheld wherever it 
 is not obvious from the nature and location 
 of the property involved, the district pre- 
 scribed, the condition and character of the 
 improvement, or the cost and relative value 
 of the property to the assessment, that the 
 method adopted has resulted in imposing a 
 burden in substantial excess of the benefits, 
 or disproportionate, within the district, as 
 between owners; King v. Portland, 184 U. S. 
 69, 22 Sup. Ct 290, 46 L. Ed. 431, affirming 
 id., 38 Or. 402, 63 Pac. 2, 55 L. R. A. S12 ; 
 Weber v. Reinhard, 73 Pa. 373, 13 Am. Rep. 
 747 ; Jones v. City of Boston, 104 Mass. 461 ; 
 Ahern v. Board of Improvement Dist. No. 3, 
 69 Ark. 68, 61 S. W. 575; Simpson v. Kansas 
 City, 46 Kan. 438, 26 Pac. 721 ; City of Chi- 
 cago v. Baer, 41 111. 306 ; State v. Fuller, 34 
 N. J. L. 227. 
 
 A principle of assessment is void if it is 
 not based upon benefits to the property as- 
 sessed, and the assessment limited to the 
 benefits; Norwood v. Baker, 172 U. S. 269, 
 19 Sup. Ct 187, 43 L. Ed. 443 ; Lee v. Rug- 
 gles, 62 111. 427 ; In re Application for Drain- 
 age of Lands between Lower Chatham and 
 Little Falls, 35 N. J. L. 497; In re City of 
 New York, 3 Wend. (N. Y.) 452; Gilmore v. 
 Hentig, 33 Kan. 174, 5 Pac. 781; Thomas v. 
 Gain, 35 Mich. 155, 24 Am. Rep. 535; Alle- 
 gheny City v. R. Co., 138 Pa. 375, 21 Atl. 763; 
 Hutcheson v. Storrie, 92 Tex. 6S8, 51 S. W. 
 848, 45 L. R, A. 289, 71 Am. St Rep. 884; 
 Adams v. City of Shelbyviile, 154 Ind. 467, 57 
 N. E. 114, 49 L. R. A. 797, 77 Am. St Rep. 
 484 ; Cowley v. City of Spokane, 99 Fed. 840. 
 That the cost of a local improvement may 
 be .assessed without regard to benefit is held 
 in some jurisdictions; In re Madera Irr. 
 Dist., 92 Cal. 296, 28 Pac. 272, 675, 14 L. R. 
 A. 755, 27 Am. St Rep. 106; Weeks v. City 
 of Milwaukee, 10 Wis. 242, where the power 
 to impose such burdens is placed upon a 
 constitutional recognition of the power to 
 Bouv.— 17 
 
 make assessments as distinguished from tax- 
 ation. It was held in In re Kingmai 
 Mass. 566, 27 N. E. 778, 12 L. R. A. 417 
 
 -ments for public improvemei. 
 he in proportion to the benefits. In Ioi 
 local assessments are based on the simple 
 ground that the object is public, and 
 the system of taxing abutting lots s> 
 such a just distribution of burdens as to be 
 within the rule requiring uniformity of tax- 
 ation; Morrison v. Hershire, .';l' la. 271. 
 
 Front Foot liulr. The apportionmi 
 the entire cost of a pavement upon abi 
 
 ccording to frontage, without any pre- 
 liminary hearing as to benefits, may be au- 
 thorized by the legislature, and this will not 
 constitute a taking without due pro- 
 law; French v. Pav. Co., 181 U. s. ::^i. 21 
 Sup. Ct. <;l'5. 45 L. Ed. 879. Thi- 
 the other cases reported in the same volume 
 all involved the constitutionality of acts cre- 
 ating special taxing districts and providing 
 for assessing the costs of local improve- 
 ments upon abutting property, in proportion 
 to their frontage. The opinions were deliv- 
 ered in all of them by Mr. Justice Shiras; 
 Harlan. White and McKenna. J.I., dissenting. 
 
 In Davidson v. New Orleans, 96 Q. 8. 97, 
 24 L. Ed. 616, an assessment of certain real 
 estate in New Orleans for draining swamps 
 was resisted in the state courts, and the 
 came into the Supreme Court of the United 
 States on the ground that the proceeding de- 
 prived the owner of his property without due 
 process of law. The origin and history of 
 this provision of the constitution as found 
 in Magna Carta and in the 5th and the 
 amendments were considered; the cases of 
 Murray v. Imp. Co., IS How. 272, 15 L 
 372, and McMillen v. Anderson. 95 Q. E 
 24 L. Ed. 335, were approved; and it was 
 held that "neither the corporate agency by 
 which the work is done, the excessive price 
 which the statute allows therefor, nor tin- 
 relative importance of the work to the value 
 of the land assessed, nor the fact that the 
 assessment is made before the work is done, 
 nor that the assessment is unequal . 
 gards the benefits conferred, nor that personal 
 judgments are rendered for the amount as- 
 sessed, are matters in which the state au- 
 thorities are controlled by the federal con- 
 stitution." And to the same effect, French 
 v. Pav. Co., 1S1 U. s. ::l'i, 21 Sap. Ot 
 45 L. Ed. Mil where the question ini 
 was the constitutionality of the apportion- 
 ment of the cost of a street pavement upon 
 the lots of abutters. 
 
 There is a wide difference between a tax 
 or assessment prescribed by a legislative 
 body, and one imposed by a municipal cor- 
 poration. And the difference is still wider 
 between an act making the assessment and 
 the action of mere functionaries acting un- 
 der municipal ordinances; Parsons v. Dis- 
 trict of Columbia, 170 U. S. 52, IS Sup. Ct.
 
 ASSESSMENT 
 
 258 
 
 ASSESSMENT 
 
 521, 42 L. Ed. 943, where the legislation in 
 question was that of Congress, and was con- 
 sidered in the light of the conclusion that 
 the United States possesses complete juris- 
 diction both of a political and municipal 
 character. There a comprehensive system 
 regulating the supply of water and the erec- 
 tion and maintenance of reservoirs and wa- 
 ter mains was established, and of it every 
 property owner of the District of Columbia 
 was presumed to have notice. Accordingly, 
 it was held that, when Congress enacted that 
 thereafter assessments for laying water 
 mains be levied on a front foot basis against 
 all abutting lots, such act must be deemed 
 conclusive alike of the question of the ne- 
 cessity of the work and of its benefits to 
 abutting property, and that a property own- 
 er could not be heard to cojnplain that he 
 was not notified of the creation of such a sys- 
 tem, or consulted as to the probable cost 
 thereof. 
 
 The question of special benefit and the 
 property to which it extends is a question 
 of fact, and when the legislature determines 
 it in a case within its general power, its de- 
 cision is final ; Spencer v. Merchant, 100 N. 
 Y. 5S5, 3 N. E. 6S2. The courts cannot re- 
 view its discretion. Where a tax or assess- 
 ment is imposed by a direct exercise of the 
 legislative power, calling for no inquiry into 
 the weight of evidence, nor for anything in 
 the nature of judicial examination, no no- 
 tice to the owner is required; Hagar v. 
 Dist. No. 108, 111 U. S. 701, 4 Sup. Ct. G63, 
 28 L. Ed. 569. But where an assessment is 
 imposed upon property according to its val- 
 ue to be ascertained by assessors upon evi- 
 dence, such oflicers act judicially; Williams 
 v. Weaver, 100 U. S. 547, 25 L. Ed. 70S ; and 
 • notice and opportunity to be heard are nec- 
 essary ; id. 
 
 Norwood v. Baker, 172 U. S. 269, 19 Sup. 
 Ct. 187, 43 L. Ed. 443, was not intended, it is 
 said, to overrule Bauman v. Ross, 167 U. S. 
 548, 17 Sup. Ct. 966, 42 L. Ed. 270, or Par- 
 sons v. District of Columbia, 170 U. S. 45, 
 18 Sup. Ct 521, 42 L. Ed. 943, both of these 
 cases being cited in the opinion in the for- 
 mer case, and declared not to be inconsist- 
 ent with the conclusion there reached. Spe- 
 cial facts showing an abuse or disregard of 
 the law, resulting in an actual deprivation 
 of property, may be ground for applying to 
 a court of equity; and this was thought by 
 a majority of the Supreme Court to have 
 been the case in Norwood v. Baker, supra, 
 per Shiras, J., in Wight v. Davidson, 181 U. 
 S. 371, 3S5, 21 Sup. Ct. 616, 45 L. Ed. 900. 
 
 The legislative authority in respect to as- 
 sessment districts is sometimes exercised by 
 making several districts for a single work, 
 as In case of street improvements, a statute 
 may make each street or part of a street a 
 taxing district; Hilliard v. City of Ashe- 
 ville, 118 N. C. 845, 24 S. E. 738. Where un- 
 
 connected sections of a street were opened, 
 such sections were held separate streets, and 
 the cost of each chargeable on the property 
 benefited; In re Opening One Hundred and 
 Sixty-Seventh St., 6S Hun 158, 22 N. Y. Supp- 
 604 ; Bacon v. City of Savannah, 86 Ga. 301, 
 12 S. E. 5S0. Where a street is of different 
 widths, it may be divided into as many sec- 
 tions as there are different widths, and' the 
 property on each section be assessed for the 
 cost thereof; Findlay v. Frey, 51 Ohio St. 
 390, 38 N. E. 114. The improvement of sev- 
 eral streets may be treated as one work for 
 the purpose* of a special assessment and the 
 whole work apportioned by uniform rule 
 throughout one district; Parker v. Challiss, 
 9 Kan. 155 ; Arnold v. Cambridge, 106 Mass. 
 352 ; Litchfield v. Vernon, 41 N. Y. 123. The 
 legislature may create a city boundary, or 
 designate any other boundary, for a local 
 taxing district, without reference to existing 
 civil or political districts ; and a city, as 
 such a district, may tax property within its 
 limits which it would not be able to tax for 
 municipal purposes only ; Henderson Bridge 
 Co. v. City of Henderson, 90 Ky. 498, 14 S. 
 W. 493; or it may create tax districts for 
 road purposes without regard to the bounda- 
 ries of counties, townships, or municipali- 
 ties ; Board of Com'rs of Monroe County v. 
 Harrell, 147 Ind. 500, 46 N. E. 124; Street 
 Lighting Dist. No. 1 v. Drummond, 63 N. J. 
 L. 493, 43 Atl. 1061; for the construction 
 and maintenance of a bridge across a river, 
 several towns may be created a bridge and 
 highway district; State v. Williams, 68 
 Conn. 131, 35 Atl. 24, 421, 48 L. R. A. 465. 
 See Cooley, Taxation (3d ed.) 238. Taxing 
 districts may be as numerous as the purpos- 
 es for which the taxes are levied; Reelfoot 
 Lake Levee Dist. v. Dawson, 97 Tenn. 151, 
 36 S. W. 1041, 34 L. R. A. 725. 
 
 Of Damages. Fixing the amount of dam- 
 ages to which the prevailing party in a suit 
 is entitled. 
 
 It may be done by the court through its 
 proper officer, the clerk or prothonotary, 
 where the assessment is a mere matter of 
 calculation, but must be by a jury in other 
 cases. See Damages; Measure of Damages. 
 In Insurance. An apportionment made in 
 general average upon the various articles 
 and interests at risk, according to their value 
 at the time and place of being in safety, for 
 contribution for damages and sacrifices pur- 
 posely made, and expenses incurred for es- 
 cape from impending common peril. 2 Phill. 
 Ins. c. xv. 
 
 It is also made upon premium notes given 
 by the members of mutual fire insurance 
 companies, constituting their capital, and be- 
 ing a substitute for the investment of the 
 paid up stock of a stock company; the lia- 
 bility to such assessmeuts being regulated by 
 the charter and the by-laws; May, Ins. § 
 549 ; Herkimer County Mut Ins. Co. v. Full-
 
 ASSESSMENT 
 
 259 
 
 ASSETS 
 
 er, 14 Barb. (N. Y.) 374; New England Mut. 
 Fire Ins. Co. v. Belknap, 9 Cush. (Mass.) 140 ; 
 Atlantic Mut. Fire Ins. Co. v. Sanders, 3G 
 N. H. 252; Susquehanna Mut. Fire Ins. Co. 
 v. Leavy, 136 Pa. 499, 20 Atl. 502, 505. A 
 member of a mutual insurance company, wbo 
 has paid something on a premium note, can 
 be assessed for further losses to the face of 
 the note only; Davis v. Parcher & Stewart 
 Co., 82 Wis. 488, 52 N. W. 771. The right to 
 assess is strictly construed, the notes being 
 merely conditional promises to pay ; Tesson 
 v. Ins. Co., 40 Mo. 39, 93 Am. Dec. 293; 
 American Ins. Co. v. Schmidt, 19 la. 502 ; 
 Devendorf v. Beardsley, 23 Barb. (N. Y.) G5G ; 
 May, Ins. § 557. As to assessments on cor- 
 porate stock, see Stock. 
 
 ASSESSMENT DISTRICTS. See Assess- 
 ment. 
 
 ASSESSORS. In Civil and Scotch Law. 
 
 Persons skilled in law, selected to advise the 
 judges of the inferior courts. Bell, Diet. ; 
 Dig. 1. 22 ; Cod. 1. 51. 
 
 As to admiralty practice, see Nautical 
 Assessors. 
 
 ASSETS. All the stock in trade, cash, 
 and all available property belonging to a 
 merchant or company. 
 
 The property in the hands of an heir, ex- 
 ecutor, administrator, or trustee, which is 
 legally or equitably chargeable with the ob- 
 ligations which such heir, executor, admin- 
 istrator, or other trustee is, as such, requir- 
 ed to discharge. 
 
 Assets enter mains. Assets in hand. Such 
 property as at once comes to the executor 
 or other trustee, for the purpose of satisfy- 
 ing claims against him as such. Termes de 
 la Lev. 
 
 Equitable assets. Such as can be reached 
 only by the aid of a court of equity, and 
 which are to be divided, pari passu, among 
 all the creditors ; 2 Fonblanque 401 ; Willis, 
 Trust. 118. 
 
 Legal assets. Such as constitute the fund 
 for the payment of debts according to their 
 legal priority. 
 
 Assets per descent. That portion of the 
 ancestor's estate which descends to the heir, 
 and which is sufficient to charge him, as far 
 as it goes, with the specialty debts of his 
 ancestors; 2 Williams, Ex. (7th Am. ed.) 
 
 Personal assets. Goods and personal chat- 
 tels to which the executor or administrator 
 is entitled. 
 
 Real assets. Such as descend to the heir, 
 as an estate in fee-simple. 
 
 In the United States, generally, by stat- 
 ute, all the property of a decedent, real and 
 personal, is liable for his debts, and is to 
 be applied as follows, when no statute pre- 
 scribes a different order of application, ex- 
 hausting all the assets of each class before 
 proceeding to the next; First, the personal 
 
 estate not specifically bequeathed ; 8< 
 
 tate devised or ordered to be sold for 
 the payment of debts; third, real estate de- 
 scended but not charged with debts; fourth. 
 real estate devised, charged generally with 
 the payment of debts ; fifth, general pecunia- 
 ry legacies pro rata; sixth, real estate de- 
 not charged with debts; 4 Kent 421: 
 2fWh. & T. Lead. Cas. 72. 
 
 With regard to the distinction between 
 realty and personalty in this respect, 
 iug crops go to the administrator; Penhal- 
 low v. Dwight, 7 Mass. 34, 5 Am. Dec. 21; 
 Kain v. Fisher, 6 x. V. 597; Cheney v. Rood- 
 house, 135 111. 257, 25 N. E. 101!); he is en- 
 title! to a crop of cotton, the cultivation of 
 which was practically completed at intes- 
 tate's death, although it was harvested and 
 sold by the heirs; Marx v. Nelms, 95 Ala. 
 304, 10 South. 551. See Wright v. Watson, 
 96 Ala. 530, 11 South. 034; so do nurseries, 
 though not trees in general; Chapman v. 
 City of Lowell, 4 Cush. (Mass.) 380; as do 
 bricks in a kiln; Taunton Copper Co. v. Ins. 
 Co., 22 Pick. (Mass.) 110; so do chattels 
 real, as interests for years and mortgages; 
 and hence the administrator must bring the 
 action if the mortgagor die before foreclos- 
 ing; Lewis' Heirs v. Ringo, 3 A. K. Marsh. 
 (Ky.) 249; so does rent, provided the intes- 
 tate dies before it is due; oil produced after 
 testator's death and accruing as royalty, be- 
 ing the consideration for the lease, is not of 
 the corpus but a part of the income of the 
 estate; In re Woodburn's Estate, 138 Pa. 606, 
 21 Atl. 16, 21 Am. St. Rep. 932. Fixtures go 
 to the heir; 2 Smith, Lead. Cas. 99; Jackson 
 v. Twenty man, 2 Pet. (U. S.) 137, 7 L, Ed. 
 374 ; Swift v. Thompson, 9 Conn. 67, 21 Am. 
 Dec. 718. In copyrights and patents the ad- 
 ministrator has right enough to get them 
 extended and beyond the customary time; 
 Wilson v. Rousseau, 4 How. (U. S.) 646, 11 
 L. Ed. 1141. Where land is sold in partition, 
 and one dies before the proceeds are distrib- 
 uted, his share passes as personalty to his 
 administrator; State v. Harper, 54 Mo. App. 
 286. Land which an executor is directed to 
 sell is personalty ; 6 Ves. 520 ; 8 Yes. 547 ; 
 Thomman's Estate, 161 Pa. 444, 29 Atl. 84; 
 but a naked discretionary power of sale will 
 not work a conversion until it is exercised : 
 Sheridan v. Sheridan, 136 Pa. 14. 19 Atl. 
 IOCS; Darlington v. Darlington, 160 Pa. <>->. 
 28 Atl. 503; In re Pyott's Estate, 100 Pa. 
 441, 28 Atl. 915, 921. Where the right of 
 eminent domain has been exercised it con- 
 verts the land into personalty in Pennsyl- 
 vania; Hough's Estate, 3 D. R. Pa. 187: but 
 not in New Jersey ; Wetberill v. Hougb. 52 
 N. J. Eq. 683, 29 Atl. 592. The wife's para- 
 phernalia cannot be taken from her, in Eng- 
 land, for the benefit of the children and 
 heirs, but may be for creditors. In the Unit- 
 ed States, generally, the wearing apparel of 
 widows and minors is retained by them, and
 
 ASSETS 
 
 260 
 
 ASSIGNMENT 
 
 is not assets. So among things reserved is 
 the widow's quarantine, i. e. forty days of 
 food and clothing; Griswold v. Chandler, 5 
 N. H. 495 ; Washburn v. Hale, 10 Pick. (Mass.) 
 430. 
 
 A claim against the United States is not 
 a local asset in the District of Columbia; 
 King v. U. S., 27 Ct. CI. 529. See Woerner, 
 Am. L. of Admn. 
 
 See Marshalling of Assets. 
 
 ASSEVERATION. The proof which a man 
 gives of the truth of what he says, by ap- 
 pealing to his conscience as a witness. 
 
 It differs from an oath in this, that by the latter 
 he appeals to God as a witness of the truth of what 
 he says, and invokes him, as the avenger of false- 
 hood and perfidy, to punish him if he speak not the 
 truth. See Affirmation ; Oath. 
 
 ASSIGN. To make or set over to another. 
 2 Bla. Com. 326; Watkinson v. Inglesby, 5 
 Johns. (N. Y.) 391. 
 
 To appoint; to select; to allot. 3 Bla. 
 Com. 58. 
 
 To set forth; to point out; as, to assign 
 errors. Fitzherbert, Nat. Brev. 19. 
 
 ASSIGNATION. In French Law, a writ of 
 summons. 
 
 ASSIGNEE. One to whom an assignment 
 has been made. 
 
 Assignee in fact is one to whom an assign- 
 ment has been made in fact by the party 
 having the right. 
 
 Assignee in laic is one in whom the law 
 vests the right: as, an executor or adminis- 
 trator. See Assignment. 
 
 ASSIGNMENT (Law Lat. assignatio, from 
 assigno, — ad and signum, — to mark for; to 
 appoint to one; to appropriate to). 
 
 A transfer or making over to another of 
 the whole of any property, real or personal, 
 in possession or in action, or of any estate 
 or right therein. 
 
 A transfer by writing, as distinguished 
 from one by delivery. 
 
 The transfer of the interest one has in 
 lands and tenements, and more particularly 
 applied to the unexpired residue of a term 
 or estate for life or years ; Cruise, Dig. tit. 
 xxxii. (Deed) c. vii, § 15; 1 Steph. Com. 
 507. The deed by which the transfer is 
 made is also called an assignment; Comyns, 
 Dig. ; Bacon, Abr. ; La. Civ. Code, art. 2612 ; 
 Angell, Assign.; 1 Am. Lead. Cas. 78, 85; 4 
 Cruise, Dig. 160. 
 
 What may be assigned. Every demand 
 connected with a right of property, real or 
 personal, is assignable. Every estate and 
 interest in lands and tenements may be as- 
 signed, as also every present and certain es- 
 tate or interest in incorporeal hereditaments, 
 even though the interest be future, includ- 
 ing a term of years to commence at a subse- 
 quent period ; for the interest is vested in 
 prwsenti, though only to take effect in futu- 
 ro; Co. Litt. 46 b; rent to grow due (but not 
 that in arrear, Demarest v. Willard, 8 Cow. 
 
 [N. T.] 206) ; a right of entry where the 
 breach of the condition ipso facto terminates 
 the estate; Gwynn v. Jones' Lessee, 2 
 G. & J. (Md.) 173; Ensign v. Kellogg, 
 4 Pick. (Mass.) 1; a right to betterments; 
 Lombard v. Buggies, 9 Greenl. (Me.) 62; 
 the right to cut trees, which have been sold 
 on the grantor's land ; Olmstead v. Niles, 7 
 N. H. 522; Pease v. Gibson, 6 Greenl. (Me.) 
 81; Emerson v. Fisk, 6 Greenl. (Me.) 200, 
 19 Am. Dec. 200; Kent v. Kent, 18 Pick. 
 (Mass.) 569; McCoy v. Herbert, 9 Leigh 
 (Va.) 548, 33 Am. Dec. 256; 11 Ad. & E. 
 34; a cause of action for cutting timber on 
 another's land; Webber v. Quaw, 46 Wis. 
 118, 49 N. W. 830; a right in lands which 
 may be perfected by occupation; Smith v. 
 Bankin, 4 Yerg. (Tenn.) 1, 26 Am. Dec. 213; 
 Cook v. Shute, Cooke (Tenn.) 67. But no 
 right of entry or re-entry can be assigned ; 
 Eskridge v. McClure, 2 Yerg. (Tenn.) 84; 
 Littleton § 347; Greenby v. Wilcocks, 2 
 Johns. (N. Y.) 1, 3 Am. Dec. 379; Gwyn v. 
 Wellborn, 18 N. C. 319; nor a naked power; 
 though it is otherwise where it is coupled 
 with an interest; 2 Mod. 317. 
 
 To make an assignment valid at law, the 
 subject of it must have an existence, actual 
 or potential, at the time of the assignment; 
 Needles v. Needles, 7 Ohio St. 432, 70 Am. 
 Dec. 85 ; 15 Mees. & W. 110 ; Moody v. Wright, 
 13 Mete. (Mass.) 17, 40 Am. Dec. 706; Skip- 
 per v. Stokes, 42 Ala. 255, 94 Am. Dec. 646. 
 But courts of equity will support an assign- 
 ment not only of interests in action and con- 
 tingency, but of things which have no pres- 
 ent, actual, or potential existence, but rest 
 in mere possibility only; 2 Story, Eq. Jur. 
 (13th ed.) §§ 1040 ft, 1055; Fearne, Cont, 
 Rem. 527; Smedes v. Bank, 20 Johns. (N. 
 Y.) 380; as an heir's possibility of inherit- 
 ance; Fitzgerald v. Vestal, 4 Sneed (Tenn.) 
 258 ; see 1 Ch. Rep. 29 ; Bacon v. Bonham, 33 
 N. J. Eq. 614; East Lewisburg Lumber' & 
 Mfg. Co. v. Marsh, 91 Pa. 96; Mandeville v. 
 Welch, 5 Wheat. 283, 5 L. Ed. 87. "An as- 
 signment cannot at law pass future proper- 
 ty, but it may be made effectual against fu- 
 ture property on the ground that a court of 
 equity will in a suitable case enforce it as 
 a contract." 36 Ch. D. 348, 351. "It has 
 long been settled that future property, pos- 
 sibilities and expectancies are assignable in 
 equity for value. The mode * * * is 
 absolutely immaterial provided the inten- 
 tion of the parties is clear ;" 13 A. C. 523. 
 
 The assignment of personal property is 
 chiefly interesting in regard to choses in 
 action and as to its effect in cases of insol- 
 vency and bankruptcy. 
 
 A chose in action cannot be transferred 
 at common law ; 10 Co. 48 ; Litt. 266 a ; Thall- 
 himer v. Brinckerhoff, 3 Cow. (N. Y.) 623, 
 15 Am. Dec. 308; Greenby v. Wilcocks, 2 
 Johns. (N. Y.) 1, 3 Am. Dec. 379; 1 Cra. 
 (U. S.) 367; Pillsbury v. Mitchell, 5 Wis. 
 17; Chapman v. Holmes' Ex'rs, 10 N. J. L.
 
 ASSIGNMENT 
 
 2G1 
 
 ASSIGNMENT 
 
 20. But the assignee may sue in the assign- 
 or's name, and the assignment will be con- 
 sidered valid in equity. See infra. 
 
 In equity, as well as at law, some choses 
 in action are not assignable on the ground 
 that they are against public policy, as an 
 officer's pay, or commission; 2 Anstr 
 1 Ball & B. Ch. 387; l Swaast 74; Bchwenk 
 v. Wyckoff, 40 N. .7. Bq. 560, 20 Atl. 259, 9 
 L. R. A. 221, l'J Am. St. Bop. 438; or the 
 stilur)/ of a judge; .Morrison v. Dead. 'rick, 10 
 Humphr. (Tenn.) :?42 ; 5 Moore, P. C. C. 219; 
 contra, State v. Bastings, 15 Wis. 78; or of 
 unearned pay of public ollicers generally; 
 Bliss v. Lawrence, 58 N. Y. 442, 17 Am. Rep. 
 273; Bowery Nat Hank of New York v. Wil- 
 son, 122 N. Y. 478. 25 N. E. 855, f) L. B. A. 
 700, 19 Am. St. Bep. 507; Inhabitants of 
 Wayne Township v. Cahill, 49 N. J. L. 144, 
 6 Atl. 621; Schloss v. Hewlett, 81 Ala. 2(16, 
 1 South. 203 (but see contra, Johnson v. 
 Pace, 78 111. 143; Manly v. Bitzer, 91 Ky. 
 596, 16 S. W. 464, 34 Am. St. Bep. 242; 
 Brackett v. Blake, 7 Mete. [Mass.] 335, 41 
 Am. Dec. 442; and also August v. Crane, 28 
 Misc. Bep. 549, 59 N. Y. Supp. 583; and 
 Ciples v. Blair. Bice Eq. [S. C] 60, where 
 costs and fees were distinguished from sal- 
 ary and held assignable) ; or claims for fish- 
 ing or other bounties from the government; 
 or rights of action for fraud or tort as a 
 right of action for assault; or in trover; 
 Gardner v. Adams, 12 Wend. (N. Y.) 297 
 (aliter of a right of action in replevin; Foy 
 v. R. Co., 24 Barb. [N. Y.] 3S2) ; or of the 
 sale of fish not yet caught; Low v. Pew, 108 
 Mass. 350, 11 Am. Bep. 357; assignment by a 
 prosecuting attorney; Holt v. Thurman, 111 
 Ky. 84, 63 S. W. 2S0, 98 Am. St. Rep. 399 ; or 
 by a sheriff to secure a promissory note; Bow- 
 ery Nat. Bank v. Wilson, 122 N. Y. 478, 25 N. 
 E. 855, 9 L. B. A. 706, 19 Am. St. Bep. 507 ; a 
 cause of action for deceit is assignable; Dean 
 v. Chandler, 44 Mo. App. 338; and it seems 
 that all rights of action which would survive 
 to the personal representatives, may be as- 
 signed; Butler v. B. Co., 22 Barb. (N. Y.) 
 110; Patten v. Wilson, 34 Pa. 299; Jordan 
 v. Gillen, 44 N. H. 424; Walton v. Rafel, 7 
 Misc. 663, 28 N. Y. Supp. 10; so of a right 
 of action against a common carrier for not 
 delivering goods; Jordan v. Gillen, 44 N. H. 
 424; or for injury to goods; Norfolk & W. 
 R. Co. v. Read, 87 Va. 185, 12 S. E. 395. It 
 is well settled that a mere expectancy or 
 possibility is not assignable at law, conse- 
 quently wages to be earned in the future, 
 not under an existing engagement, but under 
 engagements subsequently to be made, are 
 not assignable ; Herbert v. Bronson, 125 
 Mass. 475; Bell v. Mulbolland, Do Mo. App. 
 612; Lehigh Valley R. Co. v. Woodring, lit; 
 Pa. 513, 9 Atl. 58. If there is an existing 
 employment under which it may reasonably 
 be expected that the wages will be earned. 
 then the possibility is coupled with an in- 
 
 and the wages 
 
 ijkeit v. Andrews, 74 Ohio St 104, 77 N. E. 
 7 17. 5 L. R. A. (N. 8 
 
 Mallin v. Wenham. 209 W X. E. 
 
 564, 65 L. R A. 602, 101 \ , 
 Edwards v. Peterson, 80 Me. 367, 14 Al 
 6 Am. St. Rep. 207; Metcalf v. B 
 la. 443, 54 X. W. 867, 43 Am 
 Peterson v. Ball. 121 la. 544, 97 N. \ 
 Bell v. Mulbolland, 90 Mo. App. I 
 v. Clough, :;•; Mich. 436, 24 Am. Rep. 
 Manly v. Bitzer, 91 Ky. 596, 16 S. W. 
 34 Am. St. Bep. 242; Schilling v. Mul • 
 Minn. 122, 56 x. w. no. St. Rep. 475; 
 
 Augur v. -Packing Co., 39 Conn. 536; Gar- 
 land v. Harrington, 51 X. EL 409; MulhaU v. 
 Quinn, l Gray (Mass.) 105, 61 Am. Dec. 414; 
 and this is true though the employment is 
 for no definite period and may be terminated 
 at any time by either party; Thayer v. Kel- 
 ley, 28 vt. 19, 65 Am. Dec. 220. The distinc- 
 tion between the two classes of cases i> well 
 illustrated where a workman assigned all 
 the wages he would earn in a year from his 
 then employer, and having left that em- 
 ployment for two months and afterwards re- 
 turned to it, the wages of the second employ- 
 ment did not pass, being considered as a 
 mere possibility; O'Keefe v. Allen, 20 B. I. 
 414, 39 Atl. 752, 78 Am. St. Bep. 884. It has 
 been suggested that to prevent the a 
 ment of future earnings is in accordance 
 with public policy; Woodring v. B. Co., 2 
 Pa. Co. Ct. 405; but while that is approved, 
 it is suggested that such a policy must be 
 a matter of legislative intervention; 14 
 Harv. L. Rev. 379. The assignment by a 
 master in chancery of his unearned fees is 
 void; Shannon v. Brunei-, 36 led. 117; as 
 is the assignment by an executor of his fees 
 before they are ascertained and fixed; Iu re 
 Worthington, 141 N. Y. 9, 35 N. B. 92 
 h. B. A. !>7. A cause of action for malicious 
 prosecution is not assignable even after ver- 
 dict; Lawrence v. Martin, 2l' Cal 174; But- 
 ler v. B. Co., 22 Barb. (X. Y.t 110; North v. 
 Turner. 9 S. & B. (Pa.) 244: 6 Madd. 59; 
 2 M. & K. f»f>2 ; nor is a right to recover 
 damages for false imprisonment : Hunt v. 
 Conrad. 47 Minn. 557, 50 X. W. 614, 14 L. 
 R. A. 512; nor any rights pendente lite. Nor 
 can personal trusts be assigned; Arkansas 
 Valley Smelting Co. v. Min. Co., 127 1. s. 
 379, S Sup. Ct. 1308, 32 L. Ed. 246; as the 
 right of a master in his apprentice; Graham 
 v. Kinder, 11 B. Monr. (Ky.) 60; Davis v. 
 Coburn, 8 Mass. 299; or the dutiis of a 
 tamentary guardian: Balch v. smith. 12 X. 
 II. 4.".7 ; nor a contract for the performance 
 of personal services: Halbert v. Deeriug, 4 
 Litt (Ky.) 9; or one involving a relation of 
 personal confidence; Burck v. Taylor. 152 
 U. S. 634, 14 Sup. ( 8 L. EkL 578; or 
 
 one which couples tbe delegation of a duty 
 with the transfer of a right. This was sub- 
 stantially the ground of the case of Boston
 
 ASSIGNMENT 
 
 2G2 
 
 ASSIGNMENT 
 
 Ice Co. v. Potter, in 123 Mass. 28, 25 Am. 
 Rep. 9, where a contract to supply merchan- 
 dize was held not assignable since "a man has 
 the right to determine with whom he shall 
 contract," which case has been much dis- 
 cussed, and its name coupled with the doc- 
 trine declared by it; see 7 Columbia D. Rev. 
 32 ; 20 Ilarv. L. Rev. 424. In England courts 
 have gone farther, holding that a contract 
 was not assignable when the result would 
 be to impose on one party a greater liability 
 than he intended to assume ; [1901] 2 K. B. 
 811, where a contract to supply a small com- 
 pany was held not assignable to a powerful 
 company with larger capital which would 
 require much larger supplies, the court ex- 
 pressly declining to "accept the contention 
 that only those contracts in which personal 
 confidence or ability is involved cannot be 
 assigned." An invention may be transferred 
 by parol; Jones v. Reynolds, 120 N. Y. 213, 
 24 N. E. 279 ; every patent or interest there- 
 in is assignable; R. S. U. S. § 4898; an as- 
 signment of a contingent remainder, for a 
 valuable consideration, while void in law, is 
 enforceable in equity; Watson v. Smith, 110 
 N. C. 6, 14 S. E. 640, 28 Am. St. Rep. 665. 
 An assignment of the proceeds of sale of 
 merchandize to be delivered in the future, 
 where no contract exists requiring such de- 
 livery by the assignor, is not valid, even 
 though notice of it was accepted by the as- 
 signee, and the amount actually due was 
 not secured from garnishment by a creditor 
 of the assignor ; O'Niel v. Kerr Co., 124 Wis. 
 234, 102 N. W. 573, 70 L. R. A. 338. But a 
 valid assignment may be made of a portion 
 of the contract price of a building contract- 
 ed to be erected by the assignor, but not yet 
 erected, and such assignment need not be in 
 writing nor accompanied by any transfer of 
 the contract itself ; Lanigan's Adm'r v. Cur- 
 rier Co., 50 N. J. Eq. 201, 24 Atl. 505. 
 
 In the assignment of a chose in action it 
 is essential that it be delivered; Lewis v. 
 Mason's Adm'r, 84 Va. 731, 10 S. E. 529; 
 Hodenpuhl v. Hines, 160 Pa. 466, 28 Atl. 825; 
 a partial assignment of choses in action is 
 good in equity, although the legal title re- 
 mains in the assignor; Texas Western Ry. 
 Co. v. Gentry, 69 Tex. 625, 8 S. W. 98; the 
 assignment of a fractional part of a claim 
 is good, where the party who is to pay does 
 not object; Kingsbury v. Burrill, 151 Mass. 
 199, 24 N. E. 36. 
 
 It is "a rule of general jurisprudence that 
 if a person enters into a contract, and, with- 
 out notice of any assignment, fulfills it to 
 the person with whom he made the contract, 
 he is discharged from his obligation;." L. 
 R. 5 C. P. 594, per Willes, J. 
 
 Whether a prior assignment of a chose in 
 action will be protected when no notice of 
 it is given to tile subsequent assignee or to 
 the trustee or debtor, is a question somewhat 
 complicated by the adherence of the English 
 
 courts to a doctrine known as the rule of 
 Dearie v. Hall, 3 Russ. 1, adopted also in 
 Loveridge v. Cooper, id. 30. • This rule is that 
 an assignment of an equitable interest, or 
 of a chose in action, without notice to the 
 person having legal dominion of the subject 
 matter, will be postponed to one made sub- 
 sequently, of which notice is given. In ap- 
 plying this rule the English courts have held 
 that inquiry by the later assignee is imma- 
 terial; 3 CI. & Fin. 456 ; and that it is also 
 immaterial that there was no trustee or per- 
 son having dominion of the fund to whom 
 the first assignee could give notice; [1904] 2 
 Ch. 385 (where it was said that "Dearie v. 
 Hall is indisputable law, although many 
 judges have said that they will not extend 
 it") ; that knowledge of the first assignment 
 accidentally acquired by the trustee would 
 protect it where there had been no formal 
 notice; L. R. 3 Ch. App. 488; and that, in 
 case of inquiry by the subsequent assignee, 
 the trustee is not bound to answer ; [1891] 3 
 Ch. 82 ; that notice to one of several trustees 
 was sufficient, he not being the assignor; 4 
 De G., F. & J. 147; but knowledge of the as- 
 signor, being one of the trustees, did not 
 avail in default of notice to the other two ; 
 4 Drew. 635; [1901] 1 Ch. 365, where Cozens- 
 Hardy, J., said: "I do not profess to be 
 able to discover any definite principle upon 
 which the rule in Dearie v. Hall is founded. 
 Nevertheless it must now be recognized as a 
 positive rule, though it is not one to be ex- 
 tended." This rule was recognized as law in 
 [1893] A. C. 369, but it was critically exam- 
 ined and discussed by both L. Ch. Herschell 
 and Lord Macnaghten and it is manifest 
 that nothing short of the rigor of the Eng- 
 lish observance of the doctrine of stare deci- 
 sis has maintained its authority. 
 
 The rule of the English courts was ap- 
 plied to an assignment of an interest in an 
 English trust, made by one domiciled in New 
 York; [1905] 2 Ch. 117, where the court ad- 
 mitted the validity of the assignment under 
 the lex loci contractus, but considered that 
 the law of the court administering a trust 
 fund should settle the order of payment as 
 between claimants. 
 
 The English rule requiring notice to the 
 holder of the legal title or trustee of an as- 
 signment of the equitable interest or chose 
 in action, has been followed in Judson v. 
 Corcoran, 17 How. (U. S.) 614, 15 L. Ed. 
 231; Methven v. Power Co., 66 Fed. 113, 13 
 C. C. A. 362 ; Spain v. Hamilton's Adm'r, 1 
 Wall. (U. S.) 604, 17 L. Ed. 619; Burck v. 
 Taylor, 152 U. S. 634, 14 Sup. Ct. 696, 38 L. 
 Ed. 578;. Vanbuskirk v. Ins. Co., 14 Conn. 
 141, 36 Am. Dec. 473; Phillips' Estate, 205 
 Pa. 515, 55 Atl. 213, 66 L. R. A. 760, 97 Am. 
 St. Rep. 746 ; Murdoch v. Finney, 21 Mo. 138 
 (and see Thomas v. Liebke, 13 Mo. App. 
 389); Merchants' and Mechanics' Bank of 
 Chicago v. Hewitt, 3 la. 93, 66 Am. Dec. 49 ; 
 Graham Paper Co. v. Pembroke, 124 Cal. 120,
 
 ASSIGNMENT 
 
 2G3 
 
 ASSIGNMENT 
 
 56 Pac 627, 44 L. R. A. 034, 71 Am. St. Rep. 
 26; Meier v. Hess, 23 Or. 002, 32 Pac. 755. 
 In other cases the assignment is held to be 
 effectual without notice even against a sub- 
 sequent assignment of which notice was 
 
 state, though tl. 
 
 Other state; O'Neill v. N 
 
 (N. Y.) 899. 
 
 Voluntary or common law assignments of 
 property in other states will be re- 
 
 given; Putnam v. Story, 132 Mass. 205; Good- | cent so far as they come into conflict with 
 
 ing v. Riley, 50 N. II. 4us; Garland v. liar- the rights of local credit 
 
 rington, 51 N. II. 409; Fortunate v. Patten, or public policy of the state in which the as- 
 
 147 N. Y. 277, 41 N. E. 572; Central Trust 
 Co. of New York v. Imp. Co., 169 N. Y. 314, 
 62 N. E. 387. The cases are collected in 1 
 Perry Trusts, § 438, note. In Clodfelter v. 
 Cox, 1 Sneed (Term.) 339, 60 Am. Dec. 157, 
 it is said that there is an Irreconcilable con- 
 flict in the American cases, and though the 
 weight of authority seems to be against the 
 English rule, the latter is considered more 
 reasonable and safe and therefore followed. 
 In a note to 14 Conn. 141, the view of the 
 Tennessee court in that case as to the weight 
 of authority is questioned and it is su 
 ed as more correct to say thai "by the pre- 
 ponderance of authority," an assignee of a 
 chose in action without notice is protected 
 against creditors of the assignor but not as 
 against a subsequent assignee for value and 
 in good faith, and this is said to be the Eng- 
 lish rule properly stated; 36 Am. Dec. 476 
 note. 
 
 The assignment of bills of exchange and 
 promissory notes by general or special en- 
 dorsement constitutes an exception to the 
 law of transfer of choses in action. When 
 negotiable (i. e., made payable to order), 
 they are transferable by the statute of 3 & 4 
 Anne; they may then be transferred by en- 
 dorsement; the holder can sue in his own 
 name, and the equitable defences which 
 might have existed between the promisor and 
 the original promisee are cut out; Bump v. 
 Van Orsdale, 11 Barb. (N. Y.) 637, 639; An- 
 drews v. Carr, 26 Miss. 577; Neyfong v. 
 Wells, Hard. (Ky.) 562; wher£ a payee en- 
 dorses a note fo third party adding a guar- 
 anty of payment, the contract and guaranty 
 are assignable; Harbord v. Cooper, 43 Minn. 
 466, 45 N. W. 860. The assignee of a bill of 
 lading has only such rights as the consignee 
 would have had; Haas v. R. Co., 81 Ga. 792, 
 7 S. E. 029. 
 
 An assignee stands in the place of his as- 
 signor and takes simply his assignor's rights ; 
 Taliaferro v. Bank, 71 Md. 200, 17 Atl. 1036. 
 
 The most extensive class of assiguments 
 are the general assignments in trust made 
 by insolvent and other debtors for the pay- 
 ment of their debts. These are usually reg- 
 ulated by state statutes. 
 
 The right of an insolvent debtor to make 
 an assignment for the benefit of his credi- 
 tors exists at common law, and when good in 
 the state where executed is good in every 
 state; Weider v. Maddox, 66 Tex. 372, 1 S. 
 W. 16S, 59 Am. Rep. 617. Where the assign- 
 ment is valid under the laws of one state 
 it will pass a debt to the assignor due under 
 contract made there with a citizen of another 
 
 signment is sought to be enforced; Barnett 
 v. Kinney, 147 U. S. 476, 13 Sup. Ct I 3 
 
 E. Ed. -47. With respect to Btatutory as- 
 signments, the prevailing doctrine is that a 
 conveyance under a stab at law op- 
 
 erates only '',""1 property within that state 
 and that with respect to property in other 
 states it is given only such effect as the law 
 of such other state would permit; and that 
 in general it must give way to the claims of 
 creditors pursuing their remedies there. It 
 pa ises no title to real estate in another state. 
 Nor as to personal property will the title ac- 
 quired by it prevail against the garnishment 
 of a debt due by the resident of another 
 state or the seizure of tangible property 
 therein under the laws of the state where 
 the property is: Earth v. Backus, 140 N. Y. 
 240, 35 N. E. 425, 23 E. B. A. 47. 37 Am. St 
 Rep. 545; Rhawn v. Pearce, 110 111. 350, 51 
 Am. Rep. 691; Catlin v. Silver-Plate Co., 123 
 Ind. 477, 24 N. E. 250, 8 L. R. A. 62, IS Am. 
 St. Rep. 33S; Security Trust Co. v. Dodd, 173 
 U. S. 624, 19 Sup. Ct. 545, 43 E. Ed. 845; 
 King v. Cross, 175 U. S. 390, 20 Sup. Ct 131, 
 44 L. Ed. I'll. 
 
 A debtor making an assignment for cred- 
 itors may legally choose bis own trustee, and 
 the title passes out of him to them ; Nichols 
 v. McEwen, 21 Barb. (N. v.) 55; Wilt v. 
 Franklin, 1 Binn. (Pa.) 514, 2 Am. Dec 174; 
 Hannah v. Carrington, IS Ark. 85; Hemp- 
 stead v. Johnston, 18 Ark. 123, 65 Am 
 458; Vansauds v. Miller, 24 Conn. 180. The 
 assent of creditors will ordinarily he pre- 
 sumed; Ashley's Adm'r v. Robinson, 29 Ala. 
 112, 65 Am. Dec. 387; Eager v. Com., 4 Mass. 
 183; Sebor v. Armstrong, 4 Mass. 206; De 
 Forest v. Bacon, 2 Conn. 633; North v. Tur- 
 ner, 9 S. & R. (Ta.) 244; Copeland v. Wild, 
 8 Greenl. (Me.) 411. 
 
 In some states the statutes provide that 
 the assignment shall be for the benefit of all 
 creditors equally, in others preferences are 
 legal. Independently of bankrupt and insol- 
 vent laws, or laws forbidding preferences, 
 priorities and preferences in favor of partic- 
 ular creditors are allowed. Such preference 
 Is not considered Inequitable, nor is a stipu- 
 lation that the creditors taking under it shall 
 release the debtor from all further claims; 
 Sebor v. Armstrong. 4 Mass. 206; Doe v. 
 Scribner, 41 Me -~~i ; Nutter v. Harris, 9 
 Ind. 88: Pearpolnt v. Graham, 4 Wash. C. C. 
 232, Fed. Cas. No. 10,877; Cameron v. Mont- 
 gomery, 13 S. ft R. (Pa.) 132; Frazler v. 
 Fredericks. 24 N. J. E. 102; BiUlngs v. Bill- 
 ings, 2 Cal. 107. 56 Am. Dec. 319; Cooper v. 
 McClun, 16 111. 435; Miller v. Conklin, 17 Ga.
 
 ASSIGNMENT 
 
 264 
 
 ASSIGNMENT 
 
 430, 63 Am. Dec. 248; TJ. S. v. Lenox, -2 
 Paine, 180, Fed. Cas. No. 15,592; Murray v. 
 Riggs, 15 Johns. (N. Y.) 571; Union Bank 
 of Maryland v. Kerr, 7 Md. 88; American 
 Exchange Bank v. Inloes, id, 381; Hatton's 
 Adm'rs v. Jordan, 29 Ala. 266; Haven v. 
 Richardson, 5 N. H. 113; Brooks v. Marhury, 
 11 Wheat. (U. S.) 78, 6 L. Ed. 423; Savings 
 Bank of New Haven v. Bates, 8 Conn. 505; 
 Hicks v. Harris, 26 Miss. 423; Bellamy v. 
 Sheriff, 6 Fla. 62; Nightingale v. Harris, 6 
 R. I. 328; Lake Shore Banking Co. v. Fuller, 
 110 Pa. 15G, 1 Atl. 731 ; Peters v. Bain, 133 
 TJ. S. 670, 10 Sup. Ct. 354, 33 L. Ed. 696; 
 Nordlinger v. Anderson, 123 N. Y. 544, 25 N. 
 E. 992 ; Van Wyck v. Read, 43 Fed. 716. See 
 Preferences. 
 
 How made. It used to be held that the 
 instrument of assignment must be of as high 
 a character and nature as the instrument 
 transferred; but now a parol (usually writ- 
 ten) assignment may transfer a deed, if the 
 deed be at the same time delivered; Canna- 
 day v. Shepard, 55 N. C. 224; Jones v. Wit- 
 ter, 13 Mass. 304; Porter v. Bullard, 26 Me. 
 448; Jackson v. Housel, 17 Johns. (N. Y.) 
 284; Prescott v. Hull, id. 292; Morange v. 
 Edwards, 1 E. D. Smith (N. Y.) 414; Onion 
 v. Paul, 1 Harr. & J. (Md.) 114; Lessee of 
 Bentley's Heirs v. Deforest, 2 Ohio 221; 
 Dtfrst v. Swift, 11 Tex. 273 ; 5 Ad. & E. 107 ; 
 1 Madd. Ch. 53. When the transfer of per- 
 sonal chattels is made by an instrument as 
 formal as that required in the assignment 
 of an interest in lands, it is commonly called 
 a bill of sale (which see). See as to the dis- 
 tinction, Blank v. German, 5 W. & S. (Pa.) 
 36. In most cases, however, personal chattels 
 are transferred by mere -note or memoran- 
 dum, or, as in the case of negotiable paper, 
 by mere endorsement; Ball v. Larkin, 3 E. 
 D. Smith (N. Y.) 555; Ryan v. Maddux, 6 
 Cal. 247; Field v. Weir, 28 Miss. 56; Worth- 
 ington v. Curd, 15 Ark. 491. "To constitute 
 an assignment of a chose in action, in equity, 
 no particular form is necessary;" Spain v. 
 Hamilton's Adnxr, 1 Wall. (U. S.) 604, 624, 
 17 L. Ed. 619. Any binding appropriation of 
 money or property to a particular use is a 
 transfer of ownership ; Watson v. Bagaley, 
 12 Pa. 167, 51 Am. Dec. 595; Fourth Street 
 Nat. Bank v. Yardley, 165 U. S. 634, 17 Sup. 
 Ct. 439, 41 L. Ed. 855 ; Clark v. Iron Co., 81 
 Fed. 310, 26 C. C. A. 423. An assignment of 
 a chose in action by parol as security is 
 valid; Union Trust Co. v. Bulkeley, 150 Fed. 
 510, 80 C. C A. 328, and so of book accounts 
 to be thereafter earned by the assignor; L. 
 R. 13 App. Cas. 523. 
 
 In France an assignment of a debt must 
 be in writing; the registration duty must be 
 paid thereon and formal notice in writing 
 must be served after registration by an offi- 
 cer of the court, called a "huissier." Notice 
 can be replaced by the debtor's formal ac- 
 knowledgment in a notarial French deed. 
 
 This passes a legal title to the debt; [19001 
 1 Ch. 602. 
 
 The proper technical and operative words 
 in assignment are "assign, transfer, and set 
 over ;" but "give, grant, bargain, and sell," 
 or any other words which show the intent of 
 the parties to make a complete transfer, will 
 work an assignment; 13 Sim. 469; 31 Beav. 
 351; Kimball v. Donald, 20 Mo. 577, 64 Am. 
 Dec. 209. 
 
 No consideration is necessary to support 
 the assignment of a term; 1 Mod. 263; Mc- 
 Clenahan v. Gwynn, 3 Munf. (Va.) 556. 
 Now, by the statute of frauds, all assign- 
 ments of chattels real must be made by deed 
 or note in writing, signed by the assigning 
 party or his agent thereunto lawfully au- 
 thorized by writing; 1 B. & P. 270. If a 
 tenant assigns the whole or a part of an es- 
 tate for a part of the term, it is a sub-lease, 
 and not an assignment ; Patten v. Deshon, 1 
 Gray (Mass.) 325; Astor v. Miller, 2 Paige, 
 Ch. (N. Y.) 68; Buckingham v. Granville 
 Alexandria Soc, 2 Ohio 369; 1 Washb. R. P. 
 *327. 
 
 Effect of. During the continuance of the 
 assignment, the assignee is liable on all cov- 
 enants running with the land, but may rid 
 himself of such continuing liability by trans- 
 fer to a mere beggar; 5 Coke 16; Ans. 
 Contr. 232 ; 1 B. & P. 21 ; 1 Sch. & L. 310 ; 
 1 Ball & B. 238 ; Dougl. 56, 183 ; (but a con- 
 veyance to an irresponsible person to avoid 
 paying a ground-rent accruing on the land 
 conveyed was held not to release the original 
 covenantor; American Academy of Music v. 
 Smith, 54 Pa. 130). By the assignment of 
 a right, all its accessories pass with it: for 
 example, the collateral security, or a lien 
 on property, which the assignor of a bond 
 had, will pass with it when assigned; Potts 
 v. Water Power Co., 9 N. J. Eq. 592 ; Waller 
 v. Tate, 4 B. Monr. (Ky.) 529; Pattison v. 
 Hull, 9 Cow. (N. Y.) 747; Eskridge v. Mc- 
 Clure, 2 Yerg. (Tenn.) 84; Boardman v. 
 Hayne, 29 la. 339; Willis v. Twambly, 13 
 Mass. 204 ; Craig v. Parkis, 40 N. Y. 181, 100 
 Am. Dec. 469 ; Coffing v. Taylor, 16 111. 457. 
 So, also, what belongs to the thing by the 
 right of accession is assigned with it ; Hodg- 
 es v. Harris, 6 Pick. (Mass.) 360; Horn v. 
 Thompson, 31 N. H. 562. 
 
 An assignee for the benefit of creditors 
 takes the property assigned subject to all ex- 
 isting valid liens and equities against the 
 assignor; Helm v. Gilroy, 20 Or. 517, 26 
 Pac. 851. 
 
 The assignee of a chose in action in a 
 court of law must bring the action in the 
 name of the assignor; and everything which 
 might have been shown in defence against 
 the assignor may be used against the as^ 
 signee ; 18 Eng. L. & Eq. 82 ; Pollard v. Ins: 
 Co., 42 Me. 221; Guerry v. Perryman, 6 Ga. 
 119 ; Commercial Bank of Rochester v. Colt, 
 15 Barb. (N. Y.) 506 ; Sanborn v. Little, 3 N.
 
 ASSIGNMENT 
 
 265 
 
 ASSIGNMENT 
 
 H. 539; Norton v. Rose, 2 Wash. (Ya.) 233; 
 Pitts v. Holmes, 10 Cush. (Mass.) 92 ; McJil- 
 ton v. Love, 13 111. 486, 54 Am. Dec. 449; 
 Lyon v. Bummers, 7 Conn. 399; Welch v. 
 Mandeville, 1 Wheat (U. S.) 236, 4 L. Ed. 
 79; Jn re Brown's Estate, 2 Pa. 4G3; Ham- 
 ilton v. Greenwood, 1 Bay (S. C.) 173, 1 Am. 
 Dec. 607; Matheson v. Crain, 1 McCord (Sj 
 C.) 219; U. S. v. Sturges, 1 Paine, 525, Fed. 
 Cas. No. 16,414 ; Patterson v. Atherton, 3 
 McLean, 147, Fed. ('as. No. 10,822; Robin- 
 son v. Marshall, 11 Md. 251; 1 BJtsph. Eq. 
 226; but in many states the assignee of a 
 chose in action may sue in his own name; 
 Smith v. Ry. Co., 23 Wis. 267; Hooker v. 
 Bank, 30 N. Y. 83, 86 Am. Dec. 351; Long 
 v. Heinrich, 46 Mo. 603 ; it is no objection to 
 suit by an assignee of an account in his 
 name that no consideration for the assign- 
 ment is shown; Young v. Hudson, 99 Mo. 102, 
 12 S. W. 632 ; and where a party assigns her 
 interest in a suit for negligence to her at- 
 torneys by way of security, there is no rea- 
 son why suit should be carried on in her 
 name ; Rajnowski v. R. Co., 78 Mich. 681, 44 
 N. W. 335. In equity the assignee may sue 
 in his own name, but he can only go into 
 equity when his remedy at law fails ; 1 Yo. 
 & C. 481 ; Bigelow v. Willson, 1 Pick. (Mass.) 
 485; Moseley v. Boush, 4 Rand. (Ya.) 392; 
 Haskell v. Hilton, 30 Me. 419; Murray v. 
 Lylburn, 2 Johns. Ch. (N. Y.) 441 ; Spring v. 
 Ins. Co., 8 Wheat. (U. S.) 268, 5 L. Ed. 614. 
 Such an assignment is considered as a dec- 
 laration of trust; Morrison v. Deaderick, 10 
 Humphr. (Tenn.) 342; 3 P. Will. 199; Welch 
 v. Mandeville, 1 Wheat. (U. S.) 235, 4 L. Ed. 
 79; but all the equitable defences exist; 
 Rousset v. Ins. Co., 1 Binn. (Pa.) 429 ; Spring 
 v. Ins. Co., 8 Wheat. (U. S.) 268, 5 L. Ed. 614. 
 It has been held that the assignee of a chose 
 in action does not take it subject to equities 
 of third persons of which he had no notice; 
 Himrod v. Bolton, 44 111. App. 516. 
 
 A valid assignment of a policy of insur- 
 ance in the broadest legal sense, by consent 
 of the underwriters, by statute, or other- 
 wise, vests in the assignee all the rights of 
 the assignor, legal and equitable, including 
 that of action ; but the instrument, not be- 
 ing negotiable in its character, is assignable 
 only in equity, and not even so, if it has, as 
 it sometimes has, a condition to the con- 
 trary ; Field v. Ins. Co., 3 Md. 244; New 
 York Life Ins. Co. v. Flack, 3 Md. 341, 56 
 Am. Dec. 742; Kingsley v. Ins. Co., 8 Cush. 
 (Mass.) 393; Grosvenor v. Ins. Co., 17 N. Y. 
 391; Simonton v. McLane's Adm'r, 25 Ala. 
 353; Folsom v. Ins. Co., 30 N. H. 231; Rison 
 v. Wilkerson, 3 Sneed (Tenn.) 565; Pollard 
 v. Ins. Co., 42 Me. 221; Birdsey v. Ins. Co., 
 26 Conn. 165; State Mut. Fire Ins. Co. v. 
 Roberts, 31 Pa. 438 ; 18 Eng. L. & Eq. 427 ; 
 Hall v. Ins. Co., 93 Mich. 1S4, 53 N. W. 727, 
 18 L. R. A. 135, 32 Am. St. Rep. 497. Where 
 the policy does not provide that an assign- 
 
 ment without the consent of the cci) 
 renders it void, a parol a 
 O'Brien v. Ins. Co., 57 Hud 589, 11 N. V. 
 Supp. 125. Upou transfer <>i a ill ; , - 
 of loss, the assignee may in 
 in his own name; Southern Fertilizer Co. v. 
 Reams, 105 X. C. 283, 11 S. E it this 
 
 is usually when there is a statutory 
 sion; and if there be none, suit must 
 the name of the assignor ; 3 Kent 261 ; Rous- 
 set v. Ins. Co., 1 Binn. (Pa.) 129. In marine 
 policies, custom seems (<> have established a 
 rule different from that of the common law, 
 and to have made polities transferable with 
 abject mutter of insurance; May, Ins. 
 g ::77. 
 
 Assignments are peculiarly the objects of 
 equity jurisdiction; 9 B. & C. 300; Mar- 
 bury v. Brooks, 7 Wheat (U. S.) 556, 5 I.. Ed 
 522; Nicoll v. Mumford, 4 Johns. Ch. (N. Y.i 
 529; Phillips v. Prevost, id. 205; Howell v. 
 Baker, id. 119; Hays v. Ward, id. 129, 8 Am. 
 Dec. 554; and bona fide assignments will in 
 most cases be upheld in equity courts ; 
 enport v. Woodbridge, 8 Greenl. (Me.) 17; 
 Corser v. Craig, 1 Wash. C. C. 424, Fed. Cas. 
 No. 3,255; Kellogg v. Krauser, 14 S. & R. 
 (Pa.) 137, 16 Am. Dec. 480: Sheftall's Adm'rs 
 v. Clay's Adm'rs, T. U. P. Char It. (Ga.) 230; 
 Anderson v. Yan Alen, 12 Johns. (N. Y.) 343; 
 but champerty and maintenance, and the pur- 
 chase of lawsuits, are inquired into and re- 
 strained in equity as in law, and fraud will 
 defeat an assignment By some of the stale 
 statutes regulating assignments, the as 
 may bring an action in his own name in a 
 court of law, but the equities in defence are 
 not excluded. See Johns v. Johns, 6 Ohio 
 271; Sirlott v. Tandy, 3 Dana (Ky.) 142; 
 Harper v. Butler, 2 Pet. (U. S.) 239. 7 I 
 410; Defrance v. Davis, Walk. (Miss.) 69. 
 
 All assignments and transfers of any claim 
 upon the United States, or of any part or 
 share thereof, or interests therein, whatever 
 may be the consideration therefor, are null 
 and void, unless made after the allowance of 
 such claim, the ascertainment of the amount 
 due, and the issuance of a warrant for the 
 payment thereof; § 3477 R. S. See 24 Am. 
 L. Rev. 442. But this does not apply to the 
 passing of such claims to heirs, devisees, or 
 assignees in bankruptcy; Erwin v. U. S., 97 
 U. S. 392, 24 L. Ed. 1065. 
 
 Notice is not necessary as against the cred- 
 itor or his assignee in bankruptcy, but the 
 claims of competing assignees or encum- 
 brancers rank as between themselves ac- 
 cording to the dates at which they have re- 
 spectively given notice to the debtor; Pol- 
 lock, Contr. 2"2, citing 3 CI. & F. 456. This 
 applies to rights created by trust ; id. 233. 
 
 In this country it has also been held that 
 notice of the assignment of a chose in ac- 
 tion is effective without notice or acceptance 
 by the debtor; Quigley v. Welter, 95 Minn. 
 3S3, 104 N. W. 236; Kingman v. Perkins,
 
 ASSIGNMENT 
 
 2G6 
 
 ASSIGNMENT OF DOWER 
 
 105 Mass. Ill ; Columbia Finance & Trust 
 Co. v. Bank, 116 Ky. 364, 76 S. W. 156; Young 
 v. Upson, 115 Fed. 192 ; Tingle v. Fisher, 20 
 W. Va. 497. 
 
 The only purpose or necessity of notice is 
 for the protection of the assignee against sub- 
 sequent assignees or creditors or payments 
 made by the debtor in ignorance of the as- 
 signment; Succession of Patrick, Mann. Un- 
 rep. Cas. (La.) 72 ; Chemical Co. v. McNair, 
 139 N. C. 320, 51 S. E. 949. 
 
 A party to an executory contract cannot 
 assign it to a third party ; but it is held in 
 Taylor v. Palmer, 31 Cal. 240, that a public 
 building contract is distinguished from a pri- 
 vate building contract on the theory that the 
 public generally were invited to bid for and 
 take public contracts regardless of the pro- 
 fessions, trades, or occupations ; and that, 
 aside from the discretion vested in the board 
 of supervisors to reject all bids when they 
 deemed it for the public good, or the bid of 
 any party who had proved delinquent in a 
 previous contract, there was no restriction 
 upon the capacity of the contractor. Ernst 
 v. Kunkle, 5 Ohio St. 520 ; City of St. Louis 
 v. Clemens, 42 Mo. 69 ; Anderson v. De Uri- 
 oste, 96 Cal. 404, 31 Pac. 266. But in the 
 construction of a complex plant, owners hav- 
 ing no knowledge themselves as to how such 
 a plant should be constructed, have a right 
 to select the party with whom they would 
 deal, and when the selection is made and the 
 contract executed, there could be no substi- 
 tution of contractors without the assent of 
 the owners ; and such a contract is not as- 
 signable by the contractor; Arkansas Valley 
 Smelting Co. v. Min. Co., 127 U. S. 379, 8 Sup. 
 Ct. 1308, 32 L. Ed. 246 ; Putnam v. Ins. Co., 
 123 Mass. 328, 25 Am. Rep. 93; Swarts v. 
 Lighting Co., 26 R. I. 388, 59 Atl. 77; Camp- 
 bell v. County Com'rs, 64 Kan. 376, 67 Pac. 
 866; Edison v. Babka, 111 Mich. 235, 69 N. 
 W. 499; Winchester v. Pyrites Co., 67 Fed. 
 45, 14 C. C. A. 300; Worden v. R. Co., 82 
 la. 735, 48 N. W. 71 ; Johnson v. Vickers, 139 
 Wis. 145, 120 N. W. 837, 131 Am. St. Rep. 
 1046. 
 
 See Future Acquired Property; Insol- 
 vency; Equitable Assignment; Chose in 
 Action. 
 
 ASSIGNMENT OF DOWER. The act by 
 
 which the share of a widow in her deceased 
 husband's real estate is ascertained and set 
 apart to her. 
 
 The assignment may be made in pais by 
 the heir or his guardian, or the devisee or 
 other persons seized of the lands subject to 
 dower ; Pierce v. Williams, 3 N. J. Law, 709 ; 
 Meserve v. Meserve, 19 N. H. 240; Blood v. 
 Blood, 23 Pick. (Mass.) 80; Shattuck v. 
 Gragg, id. SS ; McRae v. Pegues, 4 Ala. 160 ; 
 Baker v. Baker, 4 Greenl. (Me.) 67; Boyers 
 v. Newbanks, 2 Ind. 388; Tudor, Lead. Cas. 
 51 ; or it may be made after a course of ju- 
 dicial proceedings, where a voluntary as- 
 
 signment is refused. In this case the as- 
 signment will be made by the sheriff, who 
 will set off her share by metes and 
 bounds; 2 Bla. Com. 136; 1 Washb. R. P. 
 229. The assignment should be made within 
 forty days after the death of the husband, 
 during which time the widow may remain 
 in the mansion-house. See Pharis v. Leach- 
 man, 20 Ala. 662 ; Chaplin v. Simmons' Heirs, 
 7 T. B. Monr. (Ky.) 337; Stedman v. For- 
 tune, 5 Conn. 462; 1 Washb. R. P. 222, n. 
 227 ; Quarantine. The share of the widow 
 is usually one-third of all the real estate of 
 which the husband has been seized during 
 coverture ; and no writing or livery is nec- 
 essary in a valid assignment, the dowress 
 being in, according to the view of the law, 
 of the seisin of her husband. 
 
 The assignment of dower in a house may 
 be of so many rooms, instead of a third part 
 of the house; Parrish v. Parrish, 88 Va. 
 529, 14 S. E. 325. The remedy of the widow, 
 when the heir refuses to assign dower, is by 
 a writ of dower unde nihil habet; 4 Kent 63. 
 A conveyance by a widow of her right of 
 dower before it has been allotted does not 
 vest the legal title in the grantee, and she is 
 a necessary party to enforce the allotment; 
 Parton v. Allison, 111 N. C. 429, 16 S. E. 416; 
 see id., 109 N. C. 674, 14 S. E. 107. If the 
 guardian of a minor heir assign more than 
 he ought, the heir on coming of age may have 
 the writ of admeasurement of dower ; Mc- 
 Cormick v. Taylor, 2 Ind. 336 ; Jones v. 
 Brewer, 1 Pick. (Mass.) 314 ; Co. Litt. 34, 35 ; 
 Fitzh. Nat. Br. 148 ; Stat. Westm. 2 (13 Edw. 
 I.) c. 7 ; 1 Washb. R. P. 222 ; 1 Kent 63, 69. 
 
 ASSIGNMENT OF ERRORS. The state- 
 ment of the case of the plaintiff in error, on 
 a writ of error, setting forth the errors com- 
 plained of. 
 
 It corresponds with the declaration in an 
 ordinary action; 2 Tidd, Pr. 1168; 3 Steph. 
 Com. (11th ed.) 623. All the errors of which 
 the plaintiff complains should be set forth 
 and assigned in distinct terms, so that the 
 defendant may plead to them ; Newnan v. 
 Pryor, 18 Ala. 186; Reynolds v. Reynolds, 
 15 Conn. 83; Adams v. Munson, 3 How. 
 (Miss.) 77. 
 
 It is an essential part of the pleadings and 
 as such should be so complete in itself as to 
 show the basis of the judgment or decree of 
 the appellate court, since after the cause is 
 disposed of and the record remitted to the 
 court below, the precipe, assignment of er- 
 rors and pleas thereto are all that usually 
 remain of record ; In re Cessna's Estate, 
 192 Pa. 14, 43 Atl. 376. 
 
 The ruling of a trial court must be speci- 
 fied in the assignment, in order to question 
 it on appeal ; Line v. State, 131 Ind. 468, 30 
 N. E. 703 ; as where no errors are assigned 
 in the record, no question is presented for 
 the appellate court for review ; Wilcox v. 
 Moore, 44 111. App. 293; Fullerton's Estate,
 
 ASSIGNMENT? OF ERRORS 
 
 2G7 
 
 >ORS 
 
 146 Pa. 61, 23 Atl. 321; Patrick Red Sand- 
 stone Co. v. Skoman, 1 Colo. App. 323, 29 
 Pac. 21; Hawkins v. McDougal, 126 Ind. 544, 
 25 N. E. 70s. Errors not assigned will not 
 usually be considered by an appellate court. 
 But the United States Circuit Court of Ap- 
 peals will notice plain error though not as- 
 signed; City of Memphis v. R. Co., 183 Fed; 
 529, 106 C. C. A. 7.",. Alleged errors of law 
 will not be considered unless contained in 
 the assignment of errors, where on the whole 
 the facts justify the judgmenl ; Behn, M. & 
 Co. v. Campbell, 205 U. S. 403, 27 Sup. Ct. 
 502, 51 L. Ed. 857. 
 
 The term is commonly used in connection 
 with appeals in cases in equity. Under the 
 federal appellate practice, it is necessary to 
 file an assignment of error with the petition 
 for an appeal. 
 
 ASSIGNOR. One who makes an asML'n- 
 ment; one who transfers property to anoth- 
 er. See Assignment. 
 
 ASSIGNS. Assignees; those to whom 
 property shall have been transferred. Now 
 seldom used except in the phrase, in deeds, 
 
 "heirs, administrators and assigns." Grant 
 v. Carpenter, 8 R. I. 3G. 
 
 ASSISA (Lat. assiilcre). Originally an 
 assembly or court; then the enactments of 
 such a court. 1 Holdsw. H. E. L. 116. 
 
 A kind of jury or inquest. For the differ- 
 ence between assisa and jurata, see Jurata. 
 
 A writ; as, an assize of novel disseisin, 
 assize of common pasture. 
 
 An ordinance; as, assisa pants. Littleton 
 § 234; 3 Sharsw. Bla. Com. 402. 
 
 A fixed specific time, sum, or quantity. A 
 tribute; tax fixed by law; a fine. Spelman, 
 Gloss. 
 
 Assisa armorum. A statute defining the 
 arms which all freemen must carry. 
 
 Assisa caderc. To be nonsuited. Cowell ; 
 3 Bla. Com. 402. 
 
 Assisa continuanda. A writ for the con- 
 tinuation of the assize to allow the produc- 
 tion of papers. Reg. Orig. 217. 
 
 Assisa de forcsta. Assize of the forest. 
 
 Assisa mortis d'ancestoris. Assize of mort 
 d'anccstre. 
 
 Assisa panis ct cerevisiw. Assize of bread 
 and ale; a statute (1266) regulating the 
 weight and measure of these articles. Abol- 
 ished in London in 1S15 and in the rest of 
 England in 1S36. 
 
 Assisa proroganda. A writ to stay pro- 
 ceedings where one of the parties is engaged 
 In a suit of the king. Reg. Orig. 20S. 
 
 Assisa ultima- prascntationis. Assize of 
 darrein presentment, which see. 
 
 Assisa r<. milium. Statutes regulating the 
 sale of certain articles. Spelman, Gloss. 
 
 Assisa cadit (or rertitur) in juratam. 
 Where a matter is so doubtful that it must 
 necessarily be tried before a jury. Jacob 
 L. Diet 
 
 ASSIS0RS. In Scotch Law. Jut 
 
 ASSISTANCE, WRIT OF. See Wb 
 ASS] 
 
 ASSITHMENT. A wergild or 
 tion by a pecuniary mulct Blount 
 
 ASSIZE, ASSIZA (Eat -it by 
 
 "r near, through the Ei\ 
 
 A writ directed to the sheriff for the recov- 
 ery of Immovable property, corporeal or In- 
 corporeal. Littleton § 234. 
 
 The action or proceedings in court 
 upon such a writ. Magna Carta c. 12; 
 13 Edw. I. (Westm. 2) c. 2r, ; :; Bla. Com. 
 ■"7, 252; Sellon, Tract. Introd. xii. 
 
 Such actions were to be tried by special courts, of 
 which the judicial officers were Justices of I 
 See Courts of Assi/.i: and Nisi Pint's. This form 
 "f r medy is said to have been introduced by the 
 parliament of Northampton (or Nottingham) a. D. 
 117G, for the purpose of trying titles to land in a 
 more certain and expeditious manner before com- 
 • rs appointed by the crown than before the 
 suitors in the county court of the king's justiciar* 
 in the Aula Regis. The action is properly a mixed 
 action, whereby the plaintiff recovers his land and 
 damages for the injury sustained by the disseisin. 
 The value of the action as a means for the recovery 
 of land led to its general adoption for that purpose, 
 those who had suffered injury not really amounting 
 to a disseisin allegiug a disseisin to entitle them- 
 selves to the remedy. The scope of the remedy 
 was also extended so as to allow the recovery of in- 
 corporeal hereditaments, as franchises, estovers, 
 etc. It gave place to the action of ejectment, and 
 is now abolished, having been previously almost. If 
 not quite, entirely disused. Stat. 3 & 4 Will. IV. c. 
 27, § 36. Stearns, Real Act. 1ST. 
 
 A jury summoned by virtue of a writ of 
 assize. 
 
 Such juries were said to be either magna (grand), 
 consisting of sixteen members and serving to deter- 
 mine the right of property, or parva i petit), con- 
 isting of twelve and serving to determine the right 
 to possession. Mirror of Just. lib. 2. 
 
 This sense is said by Littleton and Blackstone to 
 be the original meaning of the word ; Littleton 
 § 234 ; 3 Bla. Com. 1S3. Coke explains it as denot- 
 ing originally a session of justices; and this expla- 
 nation is sanctioned by the etymology of the word. 
 Co. Litt. 153 b. It seems, however, to have been 
 early used in all the senses here given. The recog- 
 nitors of assize (the jurors) had the power of de- 
 ciding, upon their own knowledge, without the ex- 
 amination of witnesses, where the issue was joined 
 on the very point of the assize ; but collateral mat- 
 ters were tried either by a jury or by the recogni- 
 tors acting as a jury, in which latter case it w:i 
 said to be turned into a jury (aaaisa rertitur in 
 juratam). Booth, Real Act. 213; Stearns, Real 
 Act. 187; 3 Bla. Com. 402. The term is no longer 
 used in England to denote a jury. 
 
 The assizes are: The Grand Assize which 
 provides a machinery for trying disputed 
 claims to property; and possessory as 
 for trying disputed claims to Seisin Ot pos- 
 session. i Holdsw. Hist. E. E. i I'.'. See 
 Grand As 
 
 The veMiiirt or judgment of the jurors or 
 recognitors of assize; 3 Bla. Com. 57. 50. 
 
 A court composed of an assembly of 
 knights and other substantia] men. with the 
 baron or justice, in a certain place, at an 
 appointed time. Grand Coutuin, c 24. See 
 Co cur of Assize.
 
 ASSIZE, ASSIZA 
 
 268 ASSIZE OF NOVEL DISSEISIN 
 
 An ordinance or statute. Littleton § 234; 
 Reg. Orig. 239. Anything reduced to a cer- 
 tainty in respect to number, quantity, quali- 
 ty, weight, measure, etc. 2 Bla. Com. 42; 
 Cowell ; Spelman, Gloss. Assisa. 
 
 As to this use of the term, see Provisions. 
 
 See the title immediately following. 
 
 In Scotch Law. The jury, consisting of 
 fifteen men, in criminal cases tried in the 
 court of justiciary. Paterson, Comp. 
 
 ASSIZE OF CLARENDON. A set of in- 
 structions (116G) "to the itinerant justices 
 and sheriffs with reference to their duties 
 and jurisdiction. 1 Holdsw. Hist. E. L. 21. 
 
 ASSIZE OF DARREIN PRESENTMENT. 
 A writ of assize which formerly lay when 
 a man or his ancestors under whom he 
 claimed presented a clerk to a benefice, who 
 was instituted, and afterwards upon the next 
 avoidance, a stranger presented a clerk and 
 thereby disturbed the real patron. 3 Sharsw. 
 Bla. Com. 245; Stat 13 Edw. I. (Westm. 2) 
 c. 5. It has given way to the remedy by 
 guare impedit. 
 
 ASSIZE OF FRESH FORCE. A writ of 
 assize which lay where the disseisin had 
 been committed within forty days. Fitzh. 
 N. B. 7. 
 
 W. C. Bolland In Tear Books of Edward 
 II, Vol. VII, p. xxxvi (Selden Society), after 
 referring to "a cryptic remark of Glanvill," 
 and saying that "the history of this writ 
 cannot be written yet," concludes that where 
 the inhabitant of a town that has the fran- 
 chise of having actions touching its own citi- 
 zens heard and determined within the town 
 is disseised of a tenement, then if he take ac- 
 tion to recover it within a certain time of 
 such disseisin (variously stated to be forty 
 days or forty weeks) he must take that ac- 
 tion by means of an assize of fresh force, 
 otherwise he can avail himself only of a 
 writ of right. 
 
 ASSIZE, GRAND. See Grand Assize. 
 
 ASSIZE OF MORTDANCESTOR. A writ 
 of assize which lay to recover possession of 
 lands against an abator or his alienee. It 
 lay where the ancestor from whom the 
 claimant derived title died seised. Cowell; 
 3 Bla. Com. 185. 
 
 ASSIZE OF NORTHHAMPTON. A re-en- 
 actment and enlargement (1176) of the As- 
 size of Clarendon. 1 Holdsw. Hist. E. L. 21. 
 
 ASSIZE OF NOVEL DISSEISIN. A writ 
 of assize which lay where the claimant had 
 been lately disseised. The action must have 
 been brought subsequently to the next pre- 
 ceding session of the eyre or circuit of jus- 
 tices, which took place once in seven years ; 
 Co. Litt. 153. 
 
 The assizes of darrein presentment, mort 
 d'ancestre, novel disseisin, and utrum were 
 possessory. They were tried before a jury. 
 
 Abolished in 1834. 1 Holdsw. Hist E. L. 151. 
 The forms are given in id. 423. 
 
 ASSIZE OF NUISANCE. A writ of as- 
 size which lay where a nuisance had been 
 committed to the complainant's freehold. 
 
 The complainant alleged some particular 
 fact done which worked an injury to his 
 freehold (ad nocurnentum liberi tenementi 
 sui), and, if successful, recovered judgment 
 for the abatement of the nuisance and also 
 for damages; Fitzh. N. B. 183; 3 Bla. Com. 
 221; 9 Co. 55; Tr. & Ha. Pr. 1776. 
 
 ASSIZE OF UTRUM. A writ of assize 
 which lay for a parson to recover lands 
 which his predecessor had improperly allow- 
 ed the church to be deprived of. 3 Bla. 
 Com. 257. 
 
 An assize for the trial of the question of 
 whether land is a lay fee, or held in frank- 
 almoigne. 1 Holdsw. Hist. E. L. 21. 
 
 ASSIZES. Sessions of the justices or com- 
 missioners of assize. 
 
 These assizes are held twice in each year 
 in each of the various shires of England, 
 with some exceptions, by virtue of several 
 commissions, for the trial of matters of fact 
 in issue in both civil and criminal cases. 
 They still retain the ancient name in popu- 
 lar language, though the commission of as- 
 size is no longer issued. 3 Steph. Com. (11th 
 ed.) 373. See Assize; Nisi Prius; Commis- 
 sion op Assize; Courts of Assize and Nisi 
 Prius. 
 
 ASSIZES DE JERUSALEM. A code of 
 feudal law prepared at a general assembly 
 of lords after the conquest of Jerusalem, A. 
 D. 1099. 
 
 It was compiled principally from the laws 
 and customs of France. It was reduced to 
 form by Jean d'Iblin, Comte de Japhe et As- 
 ealon, about the year 1290. 1 Fournel, Hist, 
 des Av. 49; 2 Dupin, Prof, des Av. 674; 
 Steph. PL Andr. ed. App. xi. 
 
 ASSOCIATE. A partner in interest. 
 
 An officer in each of the superior courts of 
 common law in England whose duty it was 
 to keep the records of his court, to attend 
 its nisi prius sittings, and to enter the ver- 
 dict, make up the postea, and deliver the 
 record to the party entitled thereto. Abbott, 
 Law Diet. 
 
 A person associated with the judges and 
 clerk of assize in commission of general jail 
 delivery. Mozley & W. Diet. 
 
 The term is frequently used of the judges 
 of appellate courts, other than the presiding 
 judge or chief justice. 
 
 ASSOCIATED PRESS. An association to 
 buy, gather and accumulate information and 
 news ; to vend, supply, distribute and publish 
 the same. 
 
 It is an association affected with a public 
 interest, and must submit to control by the 
 public for the common good. It must sell
 
 ASSOCIATED PRESS 
 
 269 
 
 ASSOCIATION 
 
 its news without discrimination to all news- 
 paper publishers who desire to purchase I In- 
 same ; Inter-Ocean Pub. Co. v. Associated 
 Press, 184 111. 438, 50 N. E. 822, 48 L. It. A. 
 508, 75 Am. St. Rep. 184, and a by-law for- 
 bidding the furnishing news to or receiving 
 news from an antagonistic person or corpo- 
 ration is void as creating a monopoly ; Id. 
 
 ASSOCIATION. The act of a number of 
 persons in uniting together for some purpose. 
 The persons so joining. 
 
 An organized union of persons for a com- 
 mon purpose; a body of persons acting to- 
 gether for the promotion of some object of 
 mutual interest or advantage. Cent. Diet. 
 
 Any combination of persona whether the 
 same be known by a distinctive name or not. 
 Stroud, Jud. Diet. 
 
 An unincorporated company is fundamen- 
 tally a large partnership, from which it dif- 
 fers mainly in the following particulars: 
 That it is not bound by the acts of the indi- 
 vidual partners, but only by those of its 
 managers; that shares in it are transferable; 
 and that it is not dissolved by the retire- 
 ment, death, bankruptcy, etc., of its individ- 
 ual members; Dicey, Parties 149. 
 
 In the United States this term is used to 
 signify a body of persons united without a 
 charter but upon the methods and forms used 
 by incorporated bodies for the prosecution 
 ©f some enterprise. Abbott, L. Diet. 
 
 Apart from a statute, no action lies by or 
 against an unincorporated association as 
 such; Karges Furniture Co. v. Woodworkers 
 Local Union, 165 Ind. 421, 75 N. E. 877. 2 L. 
 R. A. (N. S.) 788, 6 Ann. Cas. 829; Dicey, 
 Parties 14S; especially when it is not organ- 
 ized to carry on some business ; St Paul 
 Typothetse v. Bookbinders' Union, 94 Minn. 
 351, 102 N. W. 725, 3 Ann. Cas. 695; Cleland 
 v. Anderson, 66 Neb. 252, 92 N. W. 306, 96 
 N. W. 212, 98 N. W. 1075, 5 L. R. A. (N. S.) 
 136. Actions must be brought in the names 
 of all the members. The inconvenience of 
 this doctrine has led to much legislation. 
 Some statutes provide for suits against asso- 
 ciations (or partnerships) in the associate 
 names, service of process on officers or other 
 associates, and judgments binding the asso- 
 ciate property, but only those members in- 
 dividually who have been personally served ; 
 see 20 Harv. L. Rev. 58. Judgments may 
 bind individually even those members not 
 personally served; Patch Mfg. Co. v. Cape- 
 less, 79 Vt. 1, 63 All. 93S. Such association 
 may sue and be sued by its name ; Whitney 
 v. Backus, 149 Pa. 29, 24 Atl. 51 ; Davison v. 
 Holden, 55 Conn. 103, 10 Atl. 515, 3 Am. St. 
 Rep. 40. In New York actions may be 
 brought against such association of seven or 
 more persons in the name of the president 
 or treasurer; Curran v. Galen. 152 N. Y. 33, 
 46 N. E. 297, 37 L. R. A. S02, 57 Am. St. Rep. 
 496. One or more members may sue for the 
 benefit of all, where the members are so nu- 
 
 merous that it is impracticable to brin:: 
 all in; Liggett v. Ladd, 17 Or. 89, 21 Pac. 
 133. In England it has been held tl 
 association of employes might be sued in its 
 name, upon the ground that such a 
 tions are expressly recognized by i 
 meut, and such right ari py im- 
 
 plication from the legislative reo piition, 
 and the right to own property; [1901 A. C. 
 426. I rv. L. Rev. 58; I irties. 
 
 See Pabtnebshep; 
 Compami s ; Building Associations 
 cial Associations; Chabitablb Uses; Ex- 
 ION. 
 
 In English Law. A writ <li .-rtain 
 
 persons (usually the clerk and hi 
 nate officers) to associate t: with 
 
 the justices and sergeants for the purpose 
 of taking the assizes. 3 Bla. Com 
 
 ASS0IL (spelled also assoile, absoile, as- 
 Boilyie). To set free; to deliver from ex- 
 communication. Stat. 1 Hen. IV. c, 7; Cow- 
 ell. See Absoil. 
 
 ASSUME. To take to or upon one's self. 
 See Cincinnati, S. & C. R. Co. v. By. C 
 Ohio St. 314, 7 N. E. 139. 
 
 ASSUMPSIT (Lat assumpsit, he has un- 
 dertaken). In Contracts. An undertaking, 
 either express or implied, to perform a parol 
 agreement l Lilly. Reg. 132. 
 
 Express assumpsit is an undertaking made 
 orally, by writing not under seal, or by mat- 
 ter of record, to perform an act or to pay 
 a sum of money to another. 
 
 Implied assumpsit is an undertakinir pre- 
 sumed in law to have been made by a party. 
 from his conduct, although he has not made 
 any express promise. 
 
 The law presumes such an undertakii g t" 
 have been made, on the ground that every- 
 body is supposed to have undertaken to do 
 what is, in point of law, just and right; 2 
 Burr. 1008; 8 C. B. 545; Leake. Contr. 75; 
 Huffman v. Wyrick. 5 Ind. App. 183, "1 X. IT. 
 S23. Such an undertaking is never implied 
 where the party has made an express prom- 
 ise; 2 Term 100 ; Kimball v. Tucker. 10 
 Mass. 192; nor ordinarily against the express 
 declaration of the party to be charged, .Tew- 
 ett v. Inhabitants of Somerset, 1 Greenl. 
 (Me.) 125; Wheelock v. Freeman, 13 
 (.Mass.) 1f,r,. 2.". Am. Dec. 674; nor will it' be 
 implied unless there be a request or a 
 by the defendant shown; Webb v. 
 N. II. 490; though such request or assent 
 may be inferred from the nature of the 
 transaction; 1 Dowl. & 1.. 964; llawl.-y v. 
 Sage, 15 Conn. 52; Hall v. R. Co.. 28 Vt. mi ; 
 Treasurer of City of Camden v. Mulford. 26 
 N. J. Law 49; or from the silent acquies- 
 cence of the defendant; Doty v. Wilson, 14 
 Johns. (X. Y.i 378; Bradley v. Richardson. 
 2 Blatchf. 343, Fed. Cas. No. 1.7SG; or even 
 contrary to fact on the ground of legal obli- 
 gation ; 1 H. Bla. 90; Inhabitants of Han- 
 over v. Turner, 14 Mass. 227, 7 Am. Dec. 203 ;
 
 ASSUMPSIT 
 
 270 
 
 ASSUMPSIT 
 
 Inhabitants of Alua v. Plummer, 4 Greenl. 
 (M*.) 258; Van Valkinburgh v. Watson, 13 
 Joints. (N. Y.) 4S0, 7 Am. Dec. 395; no prom- 
 ise t ) pay is implied from a mere use of per- 
 sonal property with the permission of the 
 owuei; Davis v. Breon, 1 Ariz. 240, 25 Pac. 
 537. 
 
 In Practice. A form of action which lies 
 for thi recovery of damages for the non-per- 
 formance of a parol or simple contract. 7 
 Term 351; Ballard v. Walker, 3 Johns. Cas. 
 (N. Y.) GO. 
 
 It diffe/s from debt, since the amount claimed 
 need not be liquidated (see Debt), and from cove- 
 nant, sinco it does not require a contract under seal 
 to suppon it. See Covenant. See 4 Coke 91; 4 
 Burr. 1008. Carter v. Carter, 14 Pick. (Mass.) 428; 
 Newell v. rlill, 2 Mete. (Mass.) 181. Assumpsit is 
 one of the class of .actions called actions upon the 
 case, and iu the older books is called action upon 
 the case ujxn assumpsit. Comyns, Dig. 
 
 It was a new variety of action on the case, 
 framed, as it seems, as often on the writ of 
 deceit as on tuat of trespass. Failure to per- 
 form one's agreements did not create a debt, 
 but it was foand to be a wrong in the nature 
 of deceit for which there must be a remedy 
 in damages. The first recorded case was Y. 
 
 B. 2 Hen. IV, 3 pi. 9. It was only in 1596 
 (4 Co. Rep. 91 a) that it was conclusively de- 
 cided that assumpsit was admissible at the 
 plaintiff's choice where debt would also lie; 
 and it was still later before it was admitted 
 that the substantial cause of action was the 
 contract; Poll. Contr. 148. See Prof. James 
 Barr Ames in 2 Harv. L. Rev. 1, 53 (3 Sel. 
 Essays, Anglo-Amer. L. H. 259) ; Holmes, 
 Com. L. 284; 3 Holdsw. Hist. E. L. 329. 
 
 Special assumpsit is an action of assump- 
 sit brought upon an express contract or 
 promise. 
 
 General assumpsit is an action of assump- 
 sit brought upon the promise or contract 
 implied by law in certain cases. See 2 Sm. 
 Lead. Cas. 14; Tr. & Ha. Pr. 1490. 
 
 The action should be brought by the party 
 from whom the consideration moved; 3 B. & 
 P. 149, n ; 4 B. & C. 664 ; Cabot v. Haskins, 
 3 Pick. (Mass.) 83, 92; or by the person for 
 whose benefit it was paid; Hinkley v. Fowler, 
 15 Me. 285; against the party who made the 
 undertaking. It lies for a corporation; 1 
 Campb. 466 ; and against it ; Bank of United 
 States v. Dandridge, 12 Wheat. (U. S.) 68, 
 6 L. Ed. 552 ; City of San Antonio v. Lewis, 
 9 Tex. 69; Waring v. Catawba Co., 2 Bay (S. 
 C.) 109; Overseers of Poor of North White- 
 hall Tp. v. Overseers of Poor of South 
 Whitehall Tp., 3 S. & R. (Pa.) 117; but not 
 in England formerly (because a corporation 
 could not contract except under its seal), un- 
 less by express authority of some legislative 
 act, or in actions on negotiable paper ; 1 
 Chit. PI. *119; 4 Bingh. 77; but now cor- 
 porations are liable in many cases on con- 
 tracts not under seal, and generally upon 
 executed contracts, up to the extent of the 
 benefit received; 6 A. & E. 846; L. R. 10 
 
 C. P. 409; Brice, Ultra Vires (3d ed.) 693. 
 
 Assumpsit will lie at the suit of a third 
 party on a contract made in his favor; Hen- 
 drick v. Lindsay, 93 U. S. 143, 23 L. Ed. 855; 
 Kountz v. Holtliouse, 85 Pa. 235 (but see 
 Ramsdale v. Horton, 3 Pa. 330); Lawrence 
 v. Fox, 20 N. Y. 268 (but see Vrooman v. 
 Turner, 69 N. Y. 2S0, 25 Am. Rep. 195) ; Snell 
 v. Ives, 85 111. 279; Bassett v. Hughes, 43 
 Wis. 31D. Contra, Warren v. Batchelder, 15 
 N. H. 129. See discussion in 15 Am. L. Rev. 
 231, and 4 N. J. L. J. 197. 
 
 A promise or undertaking on the part of 
 the defendant, either expressly made by him 
 or implied by the law from his actions, con- 
 stitutes the gist of the action. A sufficient 
 consideration for the promise must be aver- 
 red and shown; 21 Am. Jur. 258, 2S3 ; though 
 it may be implied by the law ; Jackson v. 
 Teele, 7 Johns. (N. Y.) 29; Jerome v. Whit- 
 ney, id. 321; Parish v. Stone, 14 Pick. 
 (Mass.) 210, 25 Am. Dec. 378; as in case of 
 negotiable promissory notes and bills, where 
 a consideration is presumed to exist till its 
 absence is shown ; Middlebury v. Case, 6 Vt. 
 165. 
 
 The action lies for — 
 
 Money had and received to the plaintiff's 
 use, including all cases where one has money, 
 or that which the parties have agreed to 
 treat as money; Willie v. Green, 2 N. H. 333 ; 
 Clark v. Pinney, 6 Cow. (N. Y.) 297; Mar- 
 shall v. McPherson, 8 Gill & J. (Md.) 333; 
 Barfield v. McCombs, 89 Ga. 799, 15 S. E. 
 666; Colt v. Clapp, 127 Mass. 476; Harper 
 v. Claxton, 62 Ala. 46 ; McFadden v. Wilson, 
 96 Ind. 253 ; in his hands which in equity 
 and good conscience he is bound to pay 
 over, including bank-notes; 13 East 20, 130; 
 Mason v. Waite, 17 Mass. 560 ; Ainslie v. 
 Wilson, 7 Cow. (N. Y.) 662, 17 Am. Dec. 532; 
 Hill's Adm'r v. Kennedy, 32 Ala. 523; prom- 
 issory notes ; Tebbetts v. Haskins, 16 Me. 
 285; Tuttle v. Mayo, 7 Johns. (N. Y.) 132; 
 Edgerton v. Brackett, 11 N. H. 218; Indian- 
 apolis Ins. Co. v. Brown, 6 Blackf. (Ind.) 
 378; notes payable in specific articles; Cran- 
 dal v. Bradley, 7 Wend. (N. Y.) 311; and 
 some kinds of evidences of debt ; 3 Campb. 
 199; Gilchrist v. Cunningham, 8 Wend. (N. 
 Y.) 641; Mason v. Waite, 17 Mass. 560; but 
 not goods, except under special agreement; 
 Morrison v. Berkey, 7 S. & R. (Pa.) 246; 3 
 B. & P. 559; 1 Y. & J. 3S0; whether deliver- 
 ed to the defendant for a particular pur- 
 pose to which he refuses to apply it ; 3 Price 
 6S; Wales v. Wetmore, 3 Day (Conn.) 252; 
 McNeilly v. Richardson, 4 Cow. (N. Y.) 607; 
 Eastman v. Hodges, 1 D. Chip. (Vt.) 101; 
 Gutherie v. Hyatt, 1 Harr. (Del.) 446; see 
 2 Bingh. 7; Hall v. Marston, 17 Mass. 575 ; 
 or obtained by him through fraud ; 1 Salk. 
 28; Bliss v. Thompson, 4 Mass. 4S8; Lyon 
 v. Annable, 4 Conn. 350; Phelps v. Conant, 
 30 Vt. 277 ; Reynolds v. Rochester, 4 Ind. 43 ; 
 or by tortious seizure and conversion of the 
 plaintiff's property; Bigelow v. Jones, 10 
 Pick. (Mass.) 161; and see Cowp. 414; 1
 
 ASSUMPSIT 
 
 271 
 
 ASSUMPSIT 
 
 Campb. 285; or by duress, imposition, or un- 
 due advantage or other involuntary and 
 wrongful payment; 6 Q. B. 276; Richardson 
 v. Duncan, 3 N. H. 508; Wheaton v. Bib- 
 bard, 20 Johns. (N. V.i 290, 11 Am. Dec. 284; 
 Chase v. Dwinal, 7 Greent (Me.) 135, 20 Am. 
 Dec. 352; Perry v. Inhabitants of Dover, 12 
 Pick. (Mass Central Bank v. Dr< 
 
 Co., 26 Barb. (N. Y.) 23; Reynolds v. Roches- 
 ter, 4 Ind. 43; Sheldon v. South School Dist, 
 24 Conn. 88; Elliott v. Swartwout, 10 Pet. 
 (U. S.) 137, 9 L. Ed. 373; Sartwell v. Hor- 
 ton, 28 Vt. 370; or for a security which 
 turns out to be a forgery, under 
 -cumstances; 3 B. ft C. 428; Terry v. Bissell, 
 26 Corn). 23; Rick v. Kelly, 30 Pa. 527; Ellis 
 v. Trust Co., 4 Ohio St. 628, 64 Am. Dec. 610; 
 or paid under a mistake of fact; 9 Bingh. 
 €47; Mowatt v. Wright, 1 Wend. (N. Y. I 355, 
 19 Am. Dec. 508; Dickens v. Jones, <> Yerg. 
 (Tenn.) 483, 27 Am. Dec. 4SS ; Norton v. 
 Marden, 15 Me. 45, 32 Am. Dec. 132; Whea- 
 don v. Olds, 20 Wend. (N. Y.) 174; Tyler v. 
 Smith, 18 B. Monr. (Ky.) 793; or upon a 
 consideration which has failed; 3 B. ft P. 
 181; President, etc., of Salem Bank v. Bank, 
 
 17 Mass. 1, 9 Am. Dec. Ill; Reynolds v. Har- 
 ris, 9 Cal. 338; Keene v. Thompson, 4 Gill & 
 J. (Md.) 463; Lyon v. Amiable, 4 Conn. 350; 
 Pennington v. Clifton, 10 Ind. 172 ; Burch v. 
 Smith, 15 Tex. 224, G5 Am. Dec. 154; see 
 Kitty v. Com., IS B. Monr. (Ky.) 523; or 
 under an agreement which has been rescind- 
 ed without partial performance; 2 C. & P. 
 514; Holbrook v. Holbrook, 30 Vt. 432; M. 
 FJ. Church v. Wood, 5 Ohio, 2S6 ; Dearborn 
 v. Dearborn, 15 Mass. 319; Gillet v. May- 
 nard, 5 Johns. (N. Y.) 85, 4 Am. Dec. 329; 
 Dickson v. Cunningham, Mart. & Y. (Tenn.) 
 203; Wharton v. O'llara, 2 N. & McC. (S. 
 C.) 65; Randlet v. Herren, 20 N. H. 102; or 
 on common counts for breach of warranty 
 upon the ground that the money was paid 
 without consideration; Murphy v. McGraw, 
 74 Mich. 318, 41 N. W. 917; or the owner of 
 stolen money may recover the amount 
 against one with whom it was deposited by 
 the thief, who, after notice, pays it to a third 
 person ; Hiudmarch v. Hoffman, 127 Pa. 284, 
 
 18 Atl. 14, 4 L. R. A. 3<3S, 14 Am. St. Rep. 
 S42; interest paid by mistake on a Judgment 
 which did not bear interest is recoverable 
 back ; McMurtry v. R. Co., S4 Ky. 4G2, 1 S. 
 W. 815; or where a factor disobeys instruc- 
 tions and sells grain, deposits made by prin- 
 cipal may be recovered; Larminie v. Carley, 
 114 111. 196, 29 N. E. 3S2 ; or to recover pur- 
 chase money under void contract for sale of 
 lands; Gwin v. Sniur, 49 Mo. App. 3<il : or to 
 recover money advanced as prepayment of 
 services to be rendered under contract, 
 where contract is not performed; Trope v. 
 Ass'n, 58 Hun 611, 12 N. Y. Supp. 519; or 
 where one receives money for a specific pur- 
 pose, but to which he does not apply it, keep- 
 ing it for himself; Barrow v. Barrow, D5 
 Hun 505, 8 N. Y. Supp. 7S3. 
 
 Money paid for the use of another, includ- 
 ing negotiable securities; Merchants 
 Cook, 4 Pick. (.Mass.) 414; I'earson v. Par- 
 ker, :; X. 11. 366; Mason v. Franklin, 3 Johns. 
 (X. Y.) 206; Craig v. Craig, 5 Bawle (Pa.) 
 91; Lapham v. Barnes, 2 Vt. 213; Mel 
 v. Crofton, GreenL (Me.) 331; where the 
 plaintiff can show a previous request; Webb 
 v. Cole, 20 N. II. 490; or subsequent a 
 Packard v. Lienow, 12 Mass. 11; Turtle v. 
 Armstead, 53 Conn. 17.".. 22 Atl. <'.7T : Wolff v. 
 Man hews, 39 Mo. App. 376; or that b< 
 it for a reasonable cause, and aot officiously; 
 ;; M. ft W. 607; Skillin v. Merrill. 16 Mass. 
 40; Ebel v. Chandler, 93 CaL 372, 28 
 934; Lovejoy v. Chandler, 93 CaL 31 
 Pac 935; Graham v. Dunigan, 2 Bosw. (N. 
 V.i 516; 14 Q. B. D. 811; L. R, 3 C. P. 38; 
 Keener Quasi Cont. 388; but a mere volun- 
 tary payment of another's debt will not make 
 the person paying his creditor; Vanderhey- 
 den v. Mallory, 1 N. V. 472 ; Turner v. 
 ton, 1 Gill ft J. (Md.) 433, 19 Am. Dec. 235; 
 Mayor, etc., of Baltimore v. Hughes' Adm'r, 1 
 Gill ft J. (Md.) 497, 19 Am. Dec. 24::; Rens- 
 selaer Glass Factory v. Reid, 5 Cow. (N. Y. i 
 603; ('alboun v. Cozens, 3 Ala. 500; Webb v. 
 Cole, 20 N. H. 490. 
 
 Money lent, including negotiable securities 
 of such a character as to be essentially mon- 
 ey; 11 Jur. 157, 289; Payson v. Whitcomb, 
 15 Pick. (Mass. i 212; Crandal v. Bradley, 7 
 Wend. (N. Y.) 311; Penn v. Flack. 3 Gill & 
 J. (Md.) 309; Edgerton v. Brackett, 11 N. 
 H. 218; Fairbanks v. Stanley, 18 Me 
 Peniston v. Wall's Adm'x, 3 J. J. Marsh. 
 (Ky.) 37; Hart v. Connor, 21 Ga. 384; ac- 
 tually loaned by the plaintiff to the defend- 
 ant himself; 1 Dane, Abr. 19G. 
 
 Money found to be due upon an account 
 stated, railed an insimul computassent, for 
 the balance so found to be due. without re- 
 gard te the nature of the evidences of the 
 original debt: 3 B. & C. 196; Danforth v. 
 Turnpike Road, 12 Johns. (N. V.) 227; 
 Greenwood v. Curtis. 6 Mass. 358, 4 Am. 1 >ec 
 145; Fitch v. Leitch, 11 Leigh (Va.) 471; 
 Burnham v. Spooner, 10 N. II. 532; Kichey 
 v. Hathaway. 149 Pa. 207, 24 Atl. 191. 
 
 Goods sold and delivered either in accord- 
 ance with a previous request; '.» Conn. 379; 
 Lyles v. Lyles' Kx'rs, 6 ITarr. ft J. (Md.) 
 273; Rogers v. Verona. 1 Bosw. (N. Y.) 417; 
 Key-.,, y. Dist No. 8, 35 X. II. 177; Abbott 
 v. Coburn, 28 Vt. 666, <;7 Am. Dec. 735; Phil- 
 adelphia Co. v. Park Bros, ft Co., 138 Pa. 
 346, 22 Atl. 86; or where the defendant re- 
 ceives and uses them; Jenkins v. Richardson, 
 6 J. J. Marsh. (Ky.) 441, 22 Am. Dec. 82; 
 Kupfer v. Inhabitants of South Parish In 
 Augusta, 12 Mass. 185; B erson r. Mc- 
 Xamara. 41 Me. 565; although tortiously : 
 Hill v. Davis. 3 N. II. 384; Floyd v. Wiley, 1 
 Mo. 130; Floyde v. Wiley, id. 643. See Jones 
 v. Hoar, 5 Pick. (M Tboveb. 
 
 Work performed; Jan i s v. Bixby, n [ 
 37; McDaniel v. Parks, 19 Ark. G71; James
 
 ASSUMPSIT 
 
 272 
 
 ASSUMPSIT 
 
 v. Buzzard, 1 Hempst. 240, Fed. Cas. No. 
 7,206a; Trammell v. Lee County, 94 Ala. 194, 
 10 South. 213; Blakeslee v. Holt, 42 Conn. 
 226; Whelan v. Clock Co., 97 N. Y. 293; and 
 materials furnished; Hayward v. Leonard, 7 
 Pick. (Mass.) 181, 19 Am. Dec. 2G8; with 
 the knowledge of the defendant; Bartholo- 
 mew v. Jackson, 20 Johns. (N. Y.) 28, 11 Am. 
 Dec. 237; Hort v. Norton, 1 McCord (S. C.) 
 22; McDaniel v. Parks, 19 Ark. 671; so that 
 he derives benefit therefrom; Lowe v. Sink- 
 lear, 27 Mo. 308; Feiton v. Simpson, 33 N. 
 C. 84; whether there be an express contract 
 or not. Also, where there is an express 
 promise to pay for extra work, although the 
 contract requires that the estimate should 
 be in writing; Hughes v. Torgerson, 96 Ala. 
 348, 11 South. 209, 16 L. R. A. 600, 38 Am. 
 St. Rep. 105. As to whether anything can be 
 recovered where the contract is to work a 
 specified time and the labor is performed 
 during a portion of that time only, see Pro- 
 vost v. Harwood, 29 Vt. 219; Ryan v. Day- 
 ton, 25 Conn. 188, 65 Am. Dec. 560; Allen v. 
 Curies, 6 Ohio St. 505; Hughes v. Cannon, 
 1 Sneed (Tenn.) 622; Wolfe v. Howes, 24 
 Barb. (N. Y.) 174; Downey v. Burke, 23 
 Mo. 228. Services performed by relatives for 
 one in his lifetime, but in the absence of an 
 express or implied contract for payment, can- 
 not be recovered for after his death ; Patter- 
 son v. Collar, 31 111. App. 340. One may re- 
 cover for work and material on an implied 
 assumpsit although the work is destroyed be- 
 fore its completion; Butterfield v. Byron, 153 
 Mass. 517, 27 N. E. 667, 12 L. R. A. 571, 25 
 Am. St. Rep. 654. 
 
 Use and occupation of the plaintiffs prem- 
 ises under a parol contract express or im- 
 plied; Logan v. Lewis, 7 J. J. Marsh. (Ky.) 
 6; Osgood v. Dewey, 13 Johns. (N. Y.) 240; 
 Eppes' Ex'rs v. Cole, 4 Hen. & M. (Va.) 161, 
 4 Am. Dec. 512 ; Brewer v. Craig, 18 % N. J. D. 
 214; Lloyd v. Hough, 1 How. (U. S.) 153, 11 
 L. Ed. 83; Phelps v. Conant, 30 Vt. 277; 
 Crommelin v. Thiess, 31 Ala. 412, 70 Am. Dec. 
 499; Howe v. Russell, 41 Me. 446 ; Sampson 
 v. Shaeffer, 3 Cal. 196 ; Theological Institute 
 of Connecticut v. Barbour, 4 Gray (Mass.) 
 329 ; but not if it be tortious ; Ryan v. 
 Marsh's Adm'r, 2 N. & McC. (S. C.) 156; 
 Hen wood v. Cheeseman, 3 S. & R. (Pa.) 500; 
 De Young v. Buchanan, 10 Gill & J. (Md.) 
 149, 32 Am. Dec. 156 ; Wiggin v. Wiggin, 6 
 N. H. 298; Strong v. Garfield, 10 Vt. 502; 
 or where defendant enters under a contract 
 for a deed; Smith v. Stewart, 6 Johns. (N. 
 Y.) 46, 5 Am. Dec. 186; Vandenheuvel v. 
 Storrs, 3 Conn. 203; Jones v. Tipton, 2 Dana 
 (Ky.) 295. The relation of landlord and 
 tenant must exist expressly or impliedly ; 
 Chambers v. Ross, 25 N. J. L. 293 ; Newby 
 v. Vestal, 6 Ind. 412; Williams v. Hollis, 19 
 Ga. 313. 
 
 And in many other cases, as for a breach 
 of promise of marriage ; Conn v. Wilson, 2 
 Overt. (Tenn.) 233, 5 Am. Dec. 663; to re- 
 
 cover the purchase-money for land sold; Vel- 
 ie v. Myers, 14 Johns. (N. Y.) 162 ; Shephard 
 v. Little, id. 210; Wood v. Gee, 3 McCord 
 (S. C.) 421; and, specially, upon wagers; 2 
 Chit. PI. 114: feigned issues; 2 Chit. PI. 
 116 ; upon foreign judgments ; 3 Term 493 ; 
 Oysted v. Shed, 8 Mass. 273; Hubbell v. 
 Coudrey, 5 Johns. (N. Y.) 132; but not on a 
 judgment obtained in a sister state; Garland 
 v. Tucker, 1 Bibb (Ky.) 361; Andrews v. 
 Montgomery, 19 Johns. (N. Y.) 162, 10 Am. 
 Dec. 213; Boston India Rubber Factory v. 
 Hoit, 14 Vt. 92 ; money due under an award ; 
 Kingsley v. Bill, 9 Mass. 19S ; where the de- 
 fendant has obtained possession of the plain- 
 tiff's property by a tort for which trespass 
 or case would lie; Bigelow v. Jones, 10 Pick. 
 (Mass.) 161 ; Budd v. Hiler, 27 N. J. L. 43 ; 
 Hutton v. Wetherald, 5 Harr. (Del.) 38 ; Coop- 
 er v. Berry, 21 Ga. 526, 68 Am. Dec. 468; 
 or, having rightful possession, has tortiously 
 sold the property; Foster v. Mfg. Co., 12 
 Pick. (Mass.) 452; Gilmore v. Wilbur, 12 
 Pick. (Mass.) 120, 22 Am. Dec. 410 ; Pritchard 
 v. Ford, 1 J. J. Marsh. (Ky.) 543; Willet v. 
 Willet, 3 Watts (Pa.) 277 ; Sanders v. Ham- 
 ilton, 3 Dana (Ky.) 552; Chauncy v. Yea- 
 ton, 1 N. H. 151; King v. McDaniel, 4 Call 
 (Va.) 451; Stockett v. Watkins' Adm'rs, 2 Gill 
 & J. (Md.) 326, 20 Am. Dec. 438 ; or convert- 
 ed it to his own use ; 3 M. & S. 191 ; Miller 
 v. Miller, 7 Pick. (Mass.) 133, 19 Am. Dec. 
 264; Pike v. Bright, 29 Ala. 332; Emerson 
 v. McNamara, 41 Me. 565 ; Janes v. Buzzard, 
 1 Hempst. 240, Fed. Cas. No. 7,206a; Als- 
 brock v. Hathaway, 3 Sneed (Tenn.) 454; 
 Goodenow v. Snyder, 3 G. Greene (la.) 599 ; 
 or, at the suit of an attaching creditor, 
 where a sheriff pays money to subsequent 
 lienor by order of court, which order is sub- 
 sequently reversed ; Haebler v. Myers, 132 N. 
 Y. 363, 30 N. E. 963, 15 L. R. A. 588, 28 Am. 
 St. Rep. 589 ; or where one purchases a bond 
 relying on the seller's recommendation that 
 it is good, when in fact it is worthless ; Rip- 
 ley v. Case, 86 Mich. 261, 49 N. W. 46. 
 
 The action may be brought for a sum speci- 
 fied in the promise of the defendant, or for 
 the definite amount of money ascertained by 
 computation to be due, or for as much as the 
 services, etc., were worth (called a quantum 
 meruit), or for the value of the goods, etc. 
 (called a quantum valebant). The value of 
 services performed under a contract void by 
 the statute of frauds is recoverable on quan- 
 tum meruit; Lapham v. Osborne, 20 Nev. 
 168, 18 Pac. 881 ; Wonsettler v. Lee, 40 Kan. 
 367, 19 Pac. 862; a city is liable for water 
 supplied after termination of the contract ; 
 Wilson v. City of Charlotte, 110 N. C. 449, 
 14 S. E. 961; one hired to do work, but who 
 is wrongfully stopped, may recover on quan- 
 tum meruit what the labor is worth, regard- 
 less of its value to the other party ; Mooney 
 v. Iron Co., 82 Mich. 263, 46 N. W. 376. 
 The form of the action, whether general*
 
 ASSUMPSIT 
 
 273 
 
 ASSUMPSIT 
 
 or special, depends upon the nature of the 
 undertaking of the parties, whether it be 
 express or implied, and upon other circum- 
 stances. In many cases where there lias 
 been an express agreement between the par- 
 ties, the plaint ill may neglect the special 
 contract and sue in general assumpsit. He 
 may do tbi.s: first, where the contract is exe- 
 cuted ; 5 B. & C. 628; Robertson v. Lynch, 
 18 Johns. (N. Y.) 451; Baker V. Corey, 10 
 Pick. (Mass.) 496; Perkins v. Hart, 11 Wheat 
 (U. S.) 237, G L. Ed. 463; Cochran v. Tatum, 
 3 T. B. Monr. (Ky.) 405; Cou'rsey v. Coving- 
 ton, 5 Harr. & J. (Md.) 45; Wood v. Gc"e, 3 
 McCord (S. C.) 421 ; Hancock v. Boss, 18 Ga. 
 .'564; and is for the payment of money; 
 Brooks v. Scott's Exr, 2 Munf. (Va.) :;il; 
 Cochran v. Tatum, 1 J. J. Marsh. (Ky.) 394; 
 Cochran v. Tatum, 3 T. B. Monr. (Ky.) 405 ; 
 Morse v. Potter, 4 Gray iMass.) 292; though 
 if a time be fixed for its payment, not until 
 the expiration of that time; 1 Stark. 229; 
 second, wliere the contract, though only par- 
 tially executed, has been abandoned by mu- 
 tual consent; 7 Term 181 ; Mead v. Degloy- 
 er, 1G Wend. (N. Y.) 632; Tebbetts v. I las- 
 kins, 16 Me. 283; Adams v. Pugh, 7 Cal. 
 150; or extinguished and rescinded by some 
 act of the defendant; Hoagland v. Moore, 2 
 Blackf. (Ind.) 1G7 ; Jenkins v. Thompson, 20 
 N. H. 457; third, where that which the 
 plaintiff has done has been performed under 
 a special agreement, but not in the time or 
 manner agreed, but yet has been beneficial to 
 the defendant and has been accepted and en- 
 joyed by him ; 1 Bingh. 34 ; Taft v. Inhab- 
 itants of Montague, 14 Mass. 282, 7 Am. Dec. 
 215; Watchman v. Crook, 5 Gill & J. (Md.) 
 240; McKinney v. Springer, 3 Ind. 59, 54 
 Am. Dec. 470; Epperly v. Bailey, 3 Ind. 72; 
 Allen v. McKibbin, 5 Mich. 449; Cole v. 
 Clarke, 3 Wis. 323 ; see 2 Sm. Lead. Cas. 14 ; 
 Miller v. Phillips, 31 Pa. 218. 
 
 A surety who has paid money for his prin- 
 cipal may recover upon the common counts, 
 though he holds a special agreement of in- 
 demnity from the principal ; Gibbs v. Bry- 
 ant, 1 Pick. (Mass.) 118. But in general, ex- 
 cept as herein stated, if there be a special 
 agreement, special assumpsit must be 
 brought thereon ; Sherman v. R. Co., 22 
 Barb. (N. Y.) 239; Maynard v. Tidball, 2 
 Wis. 34. 
 
 The declaration should state the contract 
 in terms, in case of a special assumpsit ; 
 but, in general, assumpsit contains only a 
 general recital of consideration, promise, and 
 breach. Several of the common counts are 
 frequently used to describe the same cause 
 of action. Damages should be laid in a suffi- 
 cient amount to cover the amount of the 
 claim; see 2 Const. S. C. 339; Beverley v. 
 Holmes, 4 Munf. (Va.) 95; Benden v. Man- 
 ning, 2 N. H. 289; Bailey v. Freeman, 4 
 Johns. (N. Y.) 280; Hendrick v. Seely, 6 
 Conn. 176; People's Bank v. Adams, 43 Vt 
 195; Davisson v. Ford, 23 W. Va. 617. 
 Bouv.— 18 
 
 Aon assumpsit is tha, usual plea, under 
 which the defendant may give in evl 
 
 most matters of defence; Com. Dig. P 
 (- G, 1). Under that plea it ma\ 
 that no such promise as al made 
 
 in- is Implied, or that the promise if 
 was void ; but defences which from their 
 nature admit a promise and set up a 
 quent performance or avoidance as, e. g 
 ment, set oil', statute of limitations, should 
 ic pleaded specially, in the absence of a stat- 
 utory definition of the effect of the g< 
 plea, which exists in many states. Where 
 there are several defendants, they < 
 plead the general issue severally; Meagher 
 .. I achelder, <; Mass. -ill; nor the same plea 
 in bar severally; Ward v. Johnson, 13 Mass. 
 152. The plea of not guilty is defective, but 
 is cured by verdict; King v. McDaniel, 4 
 Call (Va.) 451. 
 
 See, generally, Bacon, Abr. ; Comyns, Dig., 
 Action upon the case upon assumpsit; Dane, 
 Abr.; Viner, Abr.; 1 Chit. PI.; Lawes. 
 Assump.; 1 Greenl. Ev. ; Lawson, Encyc. of 
 PI. & Pr. ; 1 Sm. Lead. Cas. 282, note to 
 Lamplelgh v. Braithwaite; Select Essays in 
 Anglo-American Leg. Hist vol. 3; Cove- 
 nant; Debt; Judgment. 
 
 ASSUMPTION OF RISK. See Negli- 
 gence; Masteb and Sebvant; Employees' 
 Liability. 
 
 ASSURANCE. Any instrument which con- 
 firms the title to an estate. Legal evidence 
 of the transfer of property. 2 Bla. Com. 
 291; [1S9G] 1 Ch. 4G8. 
 
 The term assurances includes, In an enlarged 
 sense, all instruments which dispose of property, 
 whether they be the grants of private persons, or 
 not; such are fines and recoveries, and private acts 
 of the legislature. Eunom. Dial. 2, s. 5. 
 
 In Commercial Law. Insurance. 
 
 ASSURED. A person who has been in- 
 sured by some insurance company or under- 
 writer, against the losses or perils mention- 
 ed in the policy of insurance. 
 
 The party whom the underwriters agree to 
 indemnify in case of loss. 1 Phill. Ins. § 2. 
 He is sometimes designated in maritime in- 
 surance by description, and not by name, as 
 in a policy "for whom it may concern ;" 
 Haynes v. Rowe, 40 Me. 181; Cobb v. Ins. 
 Co., G Gray (Mass.) 192; Myers v. Ins. Co., 
 27 Pa. 2GS, 67 Am. Dec. 462; Blanchard v. 
 Ins. Co., 33 N. H. 9; Augusta Ins. & Hank- 
 ing Co. of Georgia v. Abbott. 12 Md. 34S. See 
 Insubance. 
 
 ASSURER. An insurer; an underwriter. 
 
 ASTRARIUS H/ERES (from astre, the 
 hearth of a chimney). Where the ancestor 
 by conveyance hath set his heir apparent and 
 his family in a house in his lifetime. Cun- 
 ningham, L. Diet. 
 
 ASTRIHILTET. In Saxon Law. A pen- 
 alty for a wrong done by one in the king's
 
 ASTRIHILTET 
 
 274 
 
 AT LARGE 
 
 peace. The offender was required to replace 
 the damage twofold. Spelnian, Gloss. 
 
 ASYLUM. A refuge; a place of retreat 
 and security. An establishment for the de- 
 tention and cure of persons suffering from 
 mental disease — and also a place for the re- 
 ception and bringing up of desolate orphans. 
 That some of its inmates are to be orphans 
 will not impart to the institution generally 
 the character of an orphan asylum; [ls99] 
 A. C. 107. It is not an educational institu- 
 tion; State v. Bacon, 6 Neb. 286. 
 
 In International Law. 1. A place of refuge 
 for fugitive offenders. Every sovereign state 
 has the right to offer an asylum to fugitives 
 from other countries, but there is no cor- 
 responding right on the part of the alien to 
 claim asylum. In recent years this right of 
 asylum has been voluntarily limited by most 
 states by treaties providing for the extradi- 
 tion (q. v.) of fugitive criminals. 
 
 Owing to the privilege of ex-territoriality 
 (q. v.) possessed by ambassadors, their resi- 
 dences were in former times frequently made 
 an asylum for fugitive criminals. Although 
 claimed by, and often conceded to, ambas- 
 sadors, this right of asylum was not definite- 
 ly recognized, and Grotius, in 1625, does not 
 admit it as part of the law of nations (II, c. 
 18, § 8). In 1726, when the Spanish Govern- 
 ment arrested the Duke of Ripperda, who 
 had taken refuge in the residence of the 
 British Embassy, the British Government 
 complained of the act as a violation of in- 
 ternational law (Causes Celebres, I, 178). 
 Within the past century the right of asylum 
 has been rarely exercised, except in Central 
 and South America u countries and in the 
 Orient, where it has been frequently granted 
 to political refugees. Even in those coun- 
 tries the United States has discouraged its 
 ministers from granting asylum, though it 
 has not absolutely prohibited it. 
 
 The qualified privilege of ex-territoriality 
 possessed by public vessels of a state in for- 
 eign waters has led them at times to exercise 
 the right of asylum, but international com- 
 ity requires that this privilege be not abus- 
 ed, and it can, in no case, be exercised by 
 merchant vessels. II, Moore, §§ 291-307. 
 
 2. In time of war, a place of refuge in neu- 
 tral territory for belligerent war-ships. See 
 Neutrality. 
 
 AT. Expresses position attained by mo- 
 tion to, and hence contact, contiguity or co- 
 incidence, actual or approximate, in space or 
 time. Being less restricted as to relative 
 position than other prepositions, it may in 
 different constructions assume their office, 
 and so become equivalent according to the 
 context to in, on, near, by, about, under, 
 over, through, from, to, toward, etc. Cent. 
 Diet. 
 
 AT LARGE. Open to discussion or con- 
 troversy ; not precluded. 
 
 A congressman at large is one who is elect- 
 ed by electors of an entire state. 
 
 See Pound; Running at Large; Animal. 
 
 AT LAW. According to the course of the 
 common law. In the law. 
 
 ATA MIT A. In Civil Law. A great-great- 
 great-grandfather's sister. 
 
 ATAVUNCULUS. In Civil Law. A great- 
 great-great-grandfather's brother. 
 
 ATA V US. In Civil Law. The male as- 
 cendant in the fifth degree. 
 
 AT HA. In Saxon Law. (Spelled also At' 
 ta, Athe, Atte.) An oath. Co well ; Spelman, 
 Gloss. 
 
 Athes, or Athaa, a power or privilege of 
 exacting and administering an oath in cer« 
 tain cases. Cowell ; Blount. 
 
 ATHEIST. One who denies or does not 
 believe in the existence of a God. 
 
 Such persons are, at common law, inca- 
 pable of giving testimony under oath, and 
 are therefore, incompetent witnesses; but 
 the disability is now largely removed. See 
 Witness. 
 
 A T I L I U M . Tackle ; the rigging of a ship ; 
 plough-tackle. Spelman, Gloss. 
 
 ATMATERTERA (Lat). In Civil Law. 
 
 A great-great-great-grandmother's sister. 
 
 ATTACHE. One attached to an embassy 
 or a legation at a foreign court. 
 
 ATTACHMENT. Taking into the custody 
 of the law the person or property of one 
 already before the court, or of one whom it 
 is sought to bring before it. 
 
 A writ for the accomplishment of this pur- 
 pose. This is the more common sense of the 
 word. 
 
 It is in its nature, but not strictly, a pro- 
 ceeding in rem; since that only is a proceed- 
 ing in rem in which the process is to be serv- 
 ed on the thing itself, and the mere posses- 
 sion of the thing, by the service of process 
 and making proclamation, authorizes the 
 court to decide upon it without notice to any 
 individual whatever; Drake, Att. § 4a; Me- 
 gee v. Beirne, 39 Pa. 50; Bray v. McClury, 
 55 Mo. 128. 
 
 Of Persons. A writ issued by a court of 
 record, commanding the sheriff to bring be- 
 fore it a person who has been guilty of con- 
 tempt of court, either in neglect or abuse of 
 its process or of subordinate powers ; 3 Bla. 
 Com. 280 ; 4 id. 283 ; or disregard of its au- 
 thority in refusing to do what is enjoined ; 
 1 Term 266 ; or by openly insulting the court ; 
 4 Bla. Com. 2S3 ; 3 id. 17. It is to some ex- 
 tent in the nature of a criminal process ; 
 Stra. 441. See State v. McDermott, 10 N. J. 
 L. 63 ; Bacon v. Wilber, 1 Cow. (N. Y.) 121, 
 n. ; 1 Term 266. 
 
 See Arrest. 
 
 Of Property. A writ issued at the institu- 
 tion or during the progress of an action, com
 
 ATTACHMENT 
 
 275 
 
 ATTACHMENT 
 
 mantling the sheriff or other proper officer 
 to attach the property, rights, credits, or ef- 
 fects of the defendant to satisfy the demands 
 of the plaintiff. 
 
 It is a process which secures Jurisdiction 
 of the defendant, not by personal service, but 
 by the seizure of his property. It may be 
 either a foreign attachment, which is found- 
 ed upon the absence or nonresidence of the 
 defendant, or a domestic attachment, which, 
 under various stale statutes, is provided for, 
 either as the beginning, or in the course of 
 a suit. The proceedings in both da 
 cases are usually, in substance, the same. 
 
 The origin of the law of attachment, as 
 administered in the United states, is found 
 in one of the customs of London, "which is 
 agreed by all authorities to have a very an- 
 cient existence." Drake. Att. § 1. With oth- 
 er customs of London, it has, from time to 
 time, been confirmed by Royal Charter and 
 Acts of Parliament, and is declared "never 
 to become obsolete by non-user or abuser" ; 
 id. The authority cited notes the curious 
 fact respecting the customs of London that 
 they were certified and recorded by word of 
 mouth, and that the mayor and aldermen 
 should declare whether the things under dis- 
 pute were a custom or not, and that having 
 been once recorded, they were afterwards to 
 be judicially noticed. Locke, in his treatise 
 on Attachment, according to the custom of 
 London, attributes its origin to the Roman 
 Law, quoting from Wilson's Adams. Kom. 
 Antiq. 194, in support of his theory and pas- 
 sage, which is reproduced in a note to the 
 section of Drake cited. In that and the sub- 
 sequent sections will be found what is known 
 of the remedy thus derived, which, as is 
 there suggested, was found peculiarly adapt- 
 ed to our circumstances in the United Slates 
 growing out of the division of the country 
 into states, each sovereign, the unrestrained 
 opportunity of transit from one to another 
 and the expansion of credit and, abolition of 
 imprisonment for debt. All of these causes 
 contributed to the adoption of a system of 
 remedies for acting directly upon the prop- 
 erty of debtors. The proceeding appears to 
 be devoid of almost every feature of a com- 
 mon law proceeding, there being no service 
 of process on the defendant, the seizure of 
 his property in limine, and not under execu- 
 tion, and the appropriation of debts due to 
 the defendant for the payment of his own 
 debt, as well as the provision for the protec- 
 tion of the defendant by pledges to refund 
 the amount so collected, if, within a speci- 
 fied time, there be an appearance and the 
 debt be disproved ; id. § 4. See Customs of 
 London. 
 
 The original design of this writ was to 
 secure the appearance of one who had dis- 
 regarded the original summons, by taking 
 possession of his property as a pledge; 3 
 Bla. Com. 2S0. 
 
 By an extension of this principle, in the 
 
 New England si d re- 
 
 mains in the custody of the law aJ 
 until final judgmi nt in 
 See Bond v. Ward, 7 Mi 
 
 In some states attachments are di 
 ed as foreign and d 
 sued against a non-i 
 . - 
 
 :: is preserved, I 
 enure:, solely to the ben 
 ing it out; while the avails of the 
 ment may be shared by o 
 who come into court and present their 
 claims for that pur] 
 
 It is a distinct charad the whole 
 
 system of remedy by attachment, that it is — 
 except in some states where it is autb 
 in chancery — a special remedy at in 
 longing exclusively to a court of law, and to 
 be resorted to and pursued in conformity 
 with the terms of the law conferring it: and 
 where from any cause the r< medy by :. 
 mem is not full and complete, a court of 
 equity has no power to pass any order to aid 
 or perfect it ; Drake, Att. § 4. 
 
 In me New England states the attachment 
 of the defendant's property, rights, and 
 credits is an incident of the summons in all 
 actions ex contractu. This is call' 
 
 S, '/. v. Elsewhere throughout the 
 country the writ issues only upon cause 
 shown by affidavit And in most of the - 
 iis issue must he preceded by the execution 
 by or on behalf of the plaintiff of a caution- 
 ary bond to pay the defendant all 
 may sustain by reason of the attachment. 
 The grounds upon which the writ may be ob- 
 tained vary in the different states. Wherev- 
 er an affidavit is required as the basis of the 
 attachment, it must verify the plaintiff's 
 cause of action, and also the e.\ 
 some one or more of the grounds of attach- 
 ment prescribed by the local statute as au- 
 thorizing the issue of the writ. 
 
 Among the grounds upon which attach- 
 ments are usually permitted by statute, the 
 most frequent and universal is non-residence 
 in the state, which is the primary ba- 
 the issue of a foreign attachment; with 
 respect to this ground, however, a man may 
 have two residences in different stales; Bar- 
 ron v. Burke, 82 111. App. 116; Rosenzweig v. 
 Wood, 30 Misc. i.".'T, »;:: x. y. Supp. 4 17. 'then 
 again, in most jurisdictions, attachments may 
 be levied against the property of absconding 
 debtors, either actual; Stewart v. Lyman, 
 62 App. Div. 182, To N. V. Supp. 936; or in- 
 tentional; stock v. Reynolds, 121 Micl 
 80 N. W. 289; Stouffer v. Niple, 40 Md. 477: 
 and this intention must be shown; Hanson 
 v. Tompkins, - Wash. 508, 27 Pac. 7."'.; one 
 has been held to be an absconding debtor who 
 conceals himself: Stafford v. Mills. .".7 X. J. 
 L. 574, 32 Atl. 7; or absents himself so as 
 to prevent the service of ordinary process 
 upon him ; Ellingtou v. Moore, 17 Mo. 424.
 
 ATTACHMENT 
 
 276 
 
 ATTACHMENT 
 
 Other grounds upon which attachment is per- 
 mitted in some states are: The fraudulent 
 incurring of a debt under contract; Mer- 
 chants' Bank of Cleveland v. Ins. & Trust 
 Co., 12 Ohio Dec. (Rep.) 73S ; fraudulently re- 
 moving or disposing of property ; Bullene v. 
 Smith, 73 Mo. 151; Howard v. Caperon, 3 
 Will son, Civ. Cas. Ct App. § 313 ; or trans- 
 ferring it; Culbertson v. Cabeen, 29 Tex. 
 247 ; though in the ordinary course of busi- 
 ness ; Farris v. Gross, 75 Ark. 391, 87 S. W. 
 633, 5 Ann. Cas. 616 ; but the removal must 
 be fraudulent ; Dunn v. Claunch, 13 Okl. 577, 
 76 Pac. 143; and it must be actually, not 
 constructively, fraudulent; Wadsworth v. 
 Laurie, 164 111. 42, 45 N. E. 435; the death 
 of a non-resident debtor owning property in 
 the state ; Bacchus v. Peters, S5 Tenn. 678, 4 
 S. W. 833; failing to pay on delivery the 
 price or value of goods delivered where there 
 was a contract so to pay ; Harlow v. Sass, 38 
 Mo. 34 ; Miller v. Godfrey, 1 Colo. App. 177, 
 27 Pac. 1016 ; the fact that a demand is not 
 otherwise secured, or that security given has 
 become worthless; Williams v. Hahn, 113 
 Cal. 475, 45 Pac. 815 (but not if the security 
 was originally worthless; Barbieri v. Ra- 
 melli, 84 Cal. 154, 23 Pac. 10S6) ; the failure 
 to pay for labor performed when it should 
 have been paid at the time ; De Lappe v. Sul- 
 livan, 7 Colo. 182, 2 Pac. 926. 
 
 The remedy by attachment is allowed in 
 general only to a creditor. In some states, 
 under special statutory provisions, damages 
 arising ex delicto may be sued for by attach- 
 ment; but the almost universal rule is oth- 
 erwise. The claim of an attaching creditor, 
 however, need not be so certain as to fall 
 within the technical definition of a debt, or 
 as to be susceptible of liquidation without the 
 intervention of a jury. It is sufficient if the 
 demand arise on contract, and that the con- 
 tract furnish a standard by which the 
 amount due could be so clearly ascertained 
 as to enable the plaintiff to aver it in his 
 affidavit, or the jury by their verdict to find 
 it; Van Winkle v. Ketcham, 3 Cai. (N. Y.) 
 323; Fisher v. Consequa, 2 Wash. C. C. 3S2, 
 Fed. Cas. No. 4,816; Wilson v. Wilson, 8 
 Gill (Md.) 192, 50 Am. Dec. 685; Weaver v. 
 Puryear, 11 Ala. 941; Jones v. Buzzard, 2 
 Ark. 415; Templin v. Krahn, 3 Ind. 374; 
 Roelofson v. Hatch,' 3 Mich. 277. 
 
 Some of the causes of action in tort upon 
 which, in the absence of a statute, attach- 
 ments have not been permitted are: Trover; 
 Hynson v. Taylor, 3 Ark. 552; breach of 
 promise of marriage ; Phillips 527 ; a steam- 
 boat collision; Griswold v. Sharpe, 2 Cal. 
 17; trespass; Ferris v. Ferris, 25 Vt. 100; 
 assault and battery; Thompson v. Carper, 
 11 Humph. (Tenn.) 542 ; Minga v. Zollicoffer, 
 23 N. C. 278; loss of profits resulting from 
 the failure of the defendant to dispose prop- 
 erly of a return cargo ; Warwick v. Chase, 
 23 Md. 154; malicious prosecution; Tarbell 
 v, Bradley, 27 Vt 535; Stanly v. Ogden, 2 
 
 Root (Conn.) 259 ; damage for loss of prop- 
 erty by a common carrier declared on in tort; 
 Piscataqua Bank v. Turnley, 1 Miles (Pa.) 
 312; money embezzled and lost in gambling; 
 Babcock v. Briggs, 52 Cal. 502 ; misbehavior 
 in office, where there was no bond and the 
 action is in tort; Dunlop v. Keith, 1 Leigh 
 (Va.) 430, 19 Am. Dec. 755; expense and 
 loss of time caused by a wound inflicted by 
 defendant; Prewitt v. Carmichael, 2 La. 
 Ann. 943; breaking open a letter entrusted 
 to the care of defendant ; Raver v. Webster, 
 3 la. 502, 66 Am. Dec. 96; slander; Sar- 
 geant v. Helmbold, Harper (S. C.) 219 ; Baune 
 v. Thomassin, 6 Mart. N. S. (La.) 563; de- 
 struction by fire of plaintiff's property caus- 
 ed by the negligence of the defendant; Han- 
 dy v. Brong, 4 Neb. 60. If the plaintiff al- 
 leged a cause of action on a contract and it 
 appears from the pleadings or the evidence 
 not to be such, it should be dismissed; El- 
 liott v. Jackson, 3 Wis. 649. 
 
 In some states an attachment may, under 
 peculiar circumstances, issue upon a debt not 
 yet due and payable; but in such cases the 
 debt must possess an actual character to be- 
 come due in futuro, and not be merely pos- 
 sible and dependent on a contingency, which 
 may never happen ; Smead v. Chrisfield, 1 
 Handy (Ohio) 442. An attachment can be 
 sued out in equity against an absconding 
 debtor by the accommodation maker of a 
 negotiable note not yet due; Altmeyer v. 
 Caulfield, 37 W. Va. 847, 17 S. E. 409. 
 
 Corporations, like natural persons, may be 
 proceeded against by attachment ; Libbey v. 
 Hodgdon, 9 N. H. 394 ; Bushel v. Ins. Co., 15 
 S. & R. (Pa.) 173; Bank of United States v. 
 Bank, 1 Rob. (Va.) 573; Wilson v. Danforth, 
 47 Ga. 676; St. Louis Perpetual Ins. Co. v. 
 Cohen, 9 Mo. 421; Planters' & Merchants' 
 Bank of Mobile v. Andrews, 8 Porter (Ala.) 
 404 ; Mineral Point R. Co. v. Keep, 22 111. 9, 
 74 Am. Dec. 124. It will lie against a cor- 
 poration for the conversion of its own stock ; 
 Condouris v. Cigarette Co., 3 Misc. 66, 22 
 N. Y. Supp. 695. 
 
 Representative persons, such as heirs, ex- 
 ecutors, Administrators, trustees, and others, 
 claiming merely by right of representation, 
 are not liable to be proceeded against, as 
 such, by attachment; Jackson v. Walsworth, 
 1 Johns. Cas. (N. Y.) 372 ; Peacock v. Wildes, 
 8 N. J. Law 179; McCoombe v. Dunch, 2 
 Dall. (U. S.) 73, 1 L. Ed. 294; Taliaferro v. 
 Lane, 23 Ala. 369 ; Patterson v. McLaughlin, 
 1 Cra. 352, Fed. Cas. No. 10,828; Metcalf v. 
 Clark, 41 Barb. (N. Y.) 45; Smith v. Riley, 
 32 Ga. 356; Levy v. Succession of Lehman, 
 38 La. Ann. 9 ; Bryant v. Fussel, 11 R. I. 286. 
 Goods in the hands of a common carrier 
 are not exempt from attachment, and, when 
 it is pending, the carrier is not justified in 
 giving them up to the consignor, as the right 
 of the officer to hold them is to be determined 
 by the court out of which the attachment is- 
 sued ; Stiles v. Davis, 1 Black (U. S.) 101, 17
 
 ATTACIJM1M 
 
 277 
 
 ATTACHMENT 
 
 L. Ed. 33 ; but goods in transit to another 
 state cannot be attached, whether without 
 the state, when the seizure was made (the 
 carriers being within the jurisdiction) ; Bates 
 v. R. Co., GO Wis. 20G, 19 N. W. 72, 50 Am. 
 Rep. 3C9 ; Western R. R. v. Thornton, 60 Ga. 
 300; Sutherland v. Bank, 78 Ky. 250; Ste- 
 venot v. R. Co., 61 Minn. 101, 63 N. W. 256, 
 28 L. R. A. 600; or still within the state, and 
 not moved from the starting point, but load- 
 ed for movement ; Baldwin v. R. Co., 81 
 Minn. 247, 83 N. W. 986, 51 L. R A. 640, 83 
 Am. St. Rep. .".TO. Obedience to attachment 
 process does not deprive the carrier of his 
 right to his charges for services to the ship- 
 per, and he may retain possession of the 
 goods until the charges are paid; Rucker v. 
 Donovan, 13 Kan. 251, 19 Am. Rep. 84; Wolfe 
 V. Crawford, 54 Miss. 514. 
 
 It is a question whether the personal bag- 
 gage of a traveller can be reached or affect- 
 ed by attachment; Western R. R. v. Thorn- 
 ton, 60 Ga. 300. 
 
 Property in the hands of officers of court 
 cannot be attached, as receivers; Martin v. 
 Davis, 21 la. 537; Wiswall v. Sampson, 14 
 How. (U. S.) 52, 14 L. Ed. 322; Columbian 
 Book Co. v. De Golyer, 115 Mass. 69; Glenn 
 v. Gill, 2 Md. 1; Taylor v. Gillean, 23 Tex. 
 508; Field v. Jones, 11 Ga. 413; Nelson v. 
 Conner, 6 Rob. (La.) 339 ; Langdon v. Lock- 
 ett, 6 Ala.. 727, 41 Am. Dec. 78; Farmers' 
 Bank of Delaware v. Beaston, 7 Gill & J. 
 (Md.) 421, 28 Am. Dec. 226; Gouverneur v. 
 Warner, 2 Sandf. (N. Y.) 624; Yuba County 
 v. Adams, 7 Cal. 35; Bentley v. Shrieve, 4 
 Md. Ch. 412 ; Robinson v. R. Co., 66 Pa. 160 ; 
 an assignee in bankruptcy; In re Cunning- 
 ham, 19 N. B. R. 276, Fed. Cas. No. 3478; 
 or a sheriff; Bradley v. Kesee, 5 Cold. 
 (Tenn.) 223, 94 Am. Dec. 246. 
 
 The levy of an attachment does not change 
 the estate of the defendant in the property 
 attached; Bigelow v. Willson, 1 Pick. (Mass.) 
 4S5; Starr v. Moore, 3 McLean 354, Fed. 
 Cas. No. 13,315; Perkins' Heirs v. Norvell, 
 6 Humphr. (Tenn.) 151; Snell v. Allen, 1 
 Swan. (Tenn.) 208; Oldham v. Scrivener, 3 
 B. Monr. (Ky.) 579; Sa minis v. Sly, 54 Ohio 
 St. 511, 44 N. E. 508, 56 Am. St. Rep. 731. 
 Nor does the attaching plaintiff acquire any 
 property thereby; Bigelow v. Willson, 1 
 Pick. (Mass.) 4S5; Crocker v. Radcliffe, 3 
 Brev. (S. C.) 23; Willing v. Bleeker, 2 S. & 
 R. (Pa.) 221 ; Owings v. Norwood's Lessee, 2 
 Harr. & J. (Md.) 96; Goddard v. Perkins, 9 
 N. H. 488. Nor can he acquire through his 
 attachment any higher or better rights to the 
 property attached than the defendant had 
 when the attachment was levied, unless he 
 can show some fraud or collusion by which 
 his rights are impaired; Crocker v. Pierce, 
 31 Me. 177: Kentucky Refining Co. v. Bank, 
 89 S. W. 492, 28 Ky. Law Rep. 486. 
 
 The levy of an attachment constitutes a 
 lien on the property or credits attached; 
 Goore v. McDaniel, 1 McCord (S. C.) 4S0 ;' 
 
 Peck v. Webber, 7 How. (Miss.) 658; Vaa 
 Loan v. Kline, 10 Johns. (N. Y.) 129 ; 1 1 
 port v. Lacon, 17 Conn. 2 
 ley, 12 Leigh (Va.) 106; Moore v. Holt, 10 
 Gratt (Ya.) 284; Grigg v. Ban!. 
 311; Hervey v. Champion, 11 Humphr. 
 (Tenn.) 569; Ziegenhager v. Doe. l Ind 
 People v. Cameron, 2 Gilman (111.) 
 [dent, etc., of Franklin Bank v I ler, 23 
 
 Me. 60, 39 Am. Dec. 601; Kittredge v. War- 
 ren, 14 X. 11. 509; Vneiand v. Bruen, 21 N. 
 J. L. 214; Downer v. Brackett, -1 V\ 
 Fed. Cas. No. 4,043; In re Rowell, 21 VI 
 Fed. Cas. No. 12.0!).-) ; Ingraham v. Phillips, 
 1 Day (Conn.) 117; Lackey v. Seibert, 23 Mo. 
 85; Hannahs v. Felt, 15 la. 141; Emery v. 
 Funt, 7 Colo. 107, 1 Pac. 686; Ward v. Mc- 
 Kenzie, 33 Tex. 297, 7 Am. Rep. 261 : Davis 
 Mill Co. v. Bangs, 6 Kan. App. 38, 49 Pac. 
 628; Beardslee v. Ingraham, 183 N. Y. 411, 
 76 N. E. 476, 3 D. R. A. (N. S.) 1073; Perry 
 v. Griefen, 99 Me. 120, 59 Atl. 001. But, as 
 the whole oflice of an attachment is to seize 
 and hold property until it can be bu 
 execution, this lien is of no value unless the 
 plaintiff obtain judgment against the de- 
 fendant and proceed to subject the property 
 to execution. 
 
 Where two or more separate attachments 
 are levied simultaneously on the same prop- 
 erty, they will be entitled each to an aliquot 
 part of the proceeds of the property ; Durant 
 v. Johnson, 19 Tick. (Mass.) 544; Campbell 
 v. Ruger, 1 Cow. (N. Y.) 215; Nutter v 
 net, 3 B. Monr. (Ky.) 201; True v. Emery, { '<~ 
 Me. 28; Wilson v. Blake, 53 Yt. 305; Thurs- 
 ton v. Huntington, 17 N. II. 438; see Love v. 
 Harper, 4 Humphr. (Tenn.) 113; Yelverton v. 
 Burton, 26 Pa. 351. Where several attach- 
 ments are levied successively on the same 
 property, they have priority in the order in 
 which they are sued out; Lutter & Voss v. 
 Grosse, 82 S. W. 278, 26 Ky. L. Rep. 585; and 
 a junior attaching creditor may impeach a 
 senior attachment, or judgment thereon, for 
 fraud; Pike v. Pike, 24 N. II. 384; Walker 
 v. Roberts, 4 Rich. (S. C.) 561 ; McCluny v. 
 Jackson, 6 Gratt. (Ya.) 96; Smith v. Getting- 
 er, 3 Ga. 140; Reed v. Ennis, 1 Abb. Pr. (N. 
 Y.) 393; Hale v. Chandler. 3 Mich. 531 : but 
 not on account of irregularities; Kin. aid v. 
 Neall, 3 McCord (S. C.) 201; Camberford v. 
 Hall. 3 McCord (S. C.)'345; Walker v. Rob- 
 erts, 4 Rich. (S. C.) 561 ; In re Grissvold. 13 
 Barb. (N. Y.) 412. 
 
 By the levy of an attachment upon per- 
 sonalty, the officer acquires a special prop- 
 erty therein, which continues so long as he 
 remains liable therefor, either to have it 
 forthcoming to satisfy the plaintiffs demand, 
 or to return it to the owner upon the attach- 
 ment being dissolved, but no longer; Parker 
 v. Miller. 6 Johns. (N. Y.) 195; Gal 
 Gates, 15 Mass. 310; Poole v. Symonds, 1 
 N. II. 289, 8 Am. Dec. 71; Nichols v. Valen- 
 tine, 3(1 Me. 322; Braley v. French, 28 Vt. 
 546; Foulks v. Pegg, 6 New 136; Stiles v.
 
 ATTACHMENT 
 
 278 
 
 ATTACHMENT 
 
 Davis, 1 Black (U. S.) 101, 17 L. Ed. 33; 
 Holt v. Burbank, 47 N. H. 164; Wentworth 
 v. Sawyer, 76 Me. 434; Rochester Lumber 
 Co. v. Locke, 72 N. H. 22, 54 Atl. 705. For 
 any violation of his possession, while his lia- 
 bility for the property continues, he may 
 maintain trover, trespass, and replevin; Lud- 
 den v. Leavitt, 9 Mass. 104, 6 Am. Dec. 45; 
 Lathrop v. Blake, 23 N. H. 46; Walker v. 
 Foxcroft, 2 Greenl. (Me.) 270; 3 Foster 46; 
 Carroll v. Frank, 2S Mo, App. 69; Whitney 
 v. Ladd, 10 Yt. 165. 
 
 As it would often subject an officer to 
 great inconvenience to keep attached proper- 
 ty in his possession, he is allowed in the New 
 England states and New York to deliver it 
 over, during the pendency of the suit, to 
 some responsible person, who will give an 
 accountable receipt for it, and who is usually 
 styled a receipter or bailee, and whose pos- 
 session is regarded as that of the officer, and, 
 therefore, as not discharging the lien of the 
 attachment. This practice is not authorized 
 by statute, but has been so long in vogue in 
 the states where it prevails as to have be- 
 come a part of their systems; Drake, Att. § 
 344. 
 
 In many states provisions exist, authoriz- 
 ing the defendant to retain possession of 
 the attached property by executing a bond 
 with sureties for the delivery thereof, either 
 to satisfy the execution which the plaintiff 
 may obtain in the cause, or when and where 
 the court may direct. This bond, like the 
 bailment of attached property, does not dis- 
 charge the lien of the attachment; Gray v. 
 Perkins, 12 Smedes & M. ( Miss. ) 622 ; Rives 
 v. Wilborne, 6 Ala. 45; Evans v. King, 7 Mo. 
 411; People v. Cameron, 2 Gilman (111.) 468; 
 Hagan v. Lucas, 10 Pet. (U. S.) 400, 9 L. Ed. 
 470; Boyd v. Buckingham, 10 Humphr. 
 (Tenn.) 434. Property thus bonded cannot 
 be seized under another attachment, or un- 
 der a junior execution ; Rives v. Wilborne, 
 6 Ala. 45; Kane v. Pilcher, 7 B. Monr. (Ky.) 
 651 ; Gordon v. Johnston, 4 La. 304. 
 
 Provisions also exist in many states for 
 the dissolution of an attachment by the de- 
 fendant's giving bond and security for the 
 payment of such judgment as the plaintiff 
 may recover. This is, in effect, merely Spe- 
 cial Bail. From the time it is given, the 
 cause ceases to be one of attachment, and 
 proceeds as if it had been instituted by 
 summons; Harper v. Bell, 2 Bibb (Ky.) 221; 
 People v. Cameron, 2 Gilman (111.) 46S ; Fife 
 v. Clarke, 3 McCord (S. C.) 347; Reynolds 
 v. Jordan, 19 Ga. 436 ; Drake, Att. § 312. 
 
 One holding property by virtue of a forth- 
 coming bond may sue for its destruction ; 
 Louisville & N. R. Co. v. Brinkerhoff, 119 Ala. 
 606, 24 South. 892. The execution of the 
 bond does not discharge the attachment or 
 levy, but the property is still in contempla- 
 tion of law in the possession of the court; 
 Hobson & Co. v. Hall, 10 Ky. L. Rep. 635. 
 
 An attachment is dissolved by a final judg- 
 
 ment for the defendant; Suydam v. Hugge- 
 ford, 23 Pick. (Mass.) 465; Johnson v. Ed- 
 son, 2 Aik. (Vt.) 299; Brown v. Harris, 2 
 G. Greene (la.) 505, 52 Am. Dec. 535; it 
 may be dissolved, on motion, on account of 
 defects in the plaintiff's proceedings, appar- 
 ent on their face ; but not for defects which 
 are not so apparent; Baldwin v. Conger, 9 
 s & M. (Miss.) 516. Every such mo- 
 tion must precede a plea to the merits; Gar- 
 mon v. Barringer, 19 N. C. 502; Young v. 
 Gray, Harp. (S. C.) 3S; Stoney v. McNeill, 
 Harp. (S. C.) 156; Watson v. McAllister, 7 
 Mart. O. S. (La.) 368; Symons v. Northern, 
 49 N. C. 241 ; Drakford v. Turk, 75 Ala. 339 ; 
 Memphis, C. & L. R. Co. v. Wilcox, 48 Pa. 
 161. The death of the defendant pendente 
 lite is held in some states to dissolve the 
 attachment; Sweriugen v. Eberius' Adm'r, 7 
 Mo. 421, 3S Am. Dec. 463 ; Vaughn v. Sturte- 
 vant, 7 R. I. 372; Phillips v. Ash's Heirs and 
 Adm'rs, 63 Ala. 414 (but not after judgment; 
 Fitch v. Ross, 4 S. & R. [Pa.] 557). And so 
 the civil death of a corporation; Farmers' 
 & Mechanics' Bank v. Little, 8 W. & S. (Pa.) 
 207, 42 Am. Dec. 293; Paschall v. Whitsett, 
 11 Ala. 472. Not so, however, the bankrupt- 
 cy of the defendant ; Downer v. Brackett, 21 
 Vt. 599, Fed. Cas. No. 4,043; President, etc., 
 of Franklin Bank v. Bachelder, 23 Me. 60, 
 39 Am. Dec. 601 ; Kittredge v. Warren, 14 
 N. H. 509; Davenport v. Tilton, 10 Mete. 
 (Mass.) 320; Vreeland v. Bruen, 21 N. J. L. 
 214; Wells v. Brander, 10 Smedes & M. 
 (Miss.) 348; Hill v. Harding, 93 111. 77. 
 
 In those states where under a summons 
 property may be attached if the plaintiff so 
 directs, the defendant has no means of de- 
 feating the attachment except by defeating 
 the action ; but in some states, where an 
 attachment does not issue except upon stated 
 grounds, provision is made for the defend- 
 ant's contesting the validity of the alleged 
 grounds; while in other states it is held that 
 he may do so, as a matter of right, without 
 statutory authority ; Morgan v. Avery, 7 
 Barb. (N. Y.) 656; Campbell v. Morris, 3 
 Harr. & McH. (Md.) 535; Havis v. Trapp, 2 
 Nott & McC. "?S. C.) 130; Harris v. Taylor, 
 3 Sneed (Tenn.) 536, 67 Am. Dec. 576; Voor- 
 hees v. Hoagland, 6 Blackf. (Ind.) 232. 
 
 As to the attachment of property or indebt- 
 edness held by or owing from a third person, 
 see Garnishment. 
 
 ATTACHMENT OF THE FOREST. 
 
 Court of Attachment. 
 
 See 
 
 ATTACHMENT OF PRIVILEGE. A pro- 
 cess by which a man, by virtue of his privi- 
 lege, calls another to litigate in that court 
 to which he himself belongs, and who has 
 the privilege to answer there. 
 
 A writ issued to apprehend a person in a 
 privileged place. Termes de la Ley. 
 
 ATTAINDER. That extinction of civil 
 rights and capacities which takes place
 
 ATTAINDER 
 
 279 
 
 ATTEMPT 
 
 whenever a person who has committed trea- 
 son or felony receives sentence of death for 
 his crime. 1 Steph. Com. 408; 1 Bish. Cr. 
 L. § 641. 
 
 Attainder by confession is either by plead- 
 ing guilty at the bar before the judges, and 
 not putting one's self on one's trial by a 
 jury, or before the coroner in sanctuary, 
 when, in ancient times, the offender was 
 obliged to abjure the realm. 
 
 Attainder by verdict is when the prisoner 
 at the bar pleads not guilty to the indict- 
 ment, and is pronounced guilty by the ver- 
 dict of the jury. 
 
 Attainder by process or outlaivry is when 
 the party flies, and is subsequently outlawed. 
 Coke, Litt. 391. 
 
 The effect of attainder upon a felon is, in 
 general terms, that all his estate, real and 
 personal, is forfeited; that his blood is cor- 
 rupted, so that nothing passes by inherit- 
 ance to, from, or through him; 1 Wins. 
 Saund. 3G1, n. ; 6 Coke 63 a, 68 6; 2 Rob. 
 Eccl. 547; 22 Eng. L. & Eq. 598; that he 
 cannot sue in a court of justice ; Co. Litt. 
 130 a. See 1 Bish. Cr. Law. § 641. 
 
 In England, by statute 33 & 34 Vict. c. 23, 
 attainder upon conviction, with consequent 
 corruption of blood, forfeiture, or escheat, is 
 abolished. 
 
 In the United States, the doctrine of at- 
 tainder is now scarcely known, although 
 during and shortly after the Revolution acts 
 of attainder were passed by several of the 
 states. The passage of such bills is ex- 
 pressly forbidden by the constitution. 
 
 Under the Confiscation Act of July 17, 
 1S62, which imposed the penalty of con- 
 fiscation of property as a punishment for 
 treason and rebellion, all that could be sold 
 was a right to the property seized, terminat- 
 ing with the life of the person for whose 
 offence it was seized; Bigelow v. Forrest, 9 
 Wall. (U. S.) 339, 19 L. Ed. 696. 
 
 ATTAINT. Attainted, stained, or black- 
 ened. 
 
 A writ which lies to inquire whether a 
 jury of twelve men gave a false verdict. 
 Bracton, 1. 4, tr. 1, c. 134; Fleta, 1. 5, c. 
 22, § 8. 
 
 Formerly the jury were rather witnesses thai 
 judges ; a false verdict would be perjury. The ag- 
 grieved party procured a writ of attaint. The case 
 was tried before 24 jurors, usually knights. The 
 penalty on conviction was one year's imprisonment, 
 forfeiture of goods, etc. Its origin is uncertain; it 
 appears on the record of the King's Court in 1202. 
 It was limited to the possessory assizes (see Assize 
 of Novel Disseisin), but by 1360 it had been ex- 
 tended to all classes of cases. It came to be the 
 rule that the attaint jury must have before it the 
 evidence on which the first jury founded its ver- 
 dict, but the first jury could produce new evidence. 
 Before 1565 it was seldom in u.se; it was abolished 
 in 1825. 1 Holdsw. Hist. E. L. ltjl. 
 
 ATTEMPT. An endeavor to accomplish a 
 crime carried beyond mere preparation, but 
 falling sbort of execution of tbe ultimate de- 
 sign in any part of it. Com. v. McDonald, 5 
 
 Cush. (Mass.) 367; Griffin v. State, 26 
 493. 
 
 An intent to do a particular criminal thing 
 combined with an act which falls 
 the thing intended. 1 Bish. < r. ! 
 Johnson v. State, h Ga. 55; St 
 shall, 14 Ala. 411; People v. Lawton, 56 Bub. 
 (N. Y.) 126; Cunningham v. Stat 
 685. 
 
 "An attempt, in general, is an overt act 
 done in pursuance of an intent to do B 
 cific thing, tending to the end, hut falling 
 short of complete accomplishment of it." 
 
 "In law, the definition musl have this fur- 
 ther qualification, that the overt act must 
 be sufficiently proximate to the int 
 crime to form one of the natural series of 
 acts which the intent requires for its full 
 execution.'' Mitchell, J., in Com. v. Lagan, 
 190 1'a. Ki. 21. 42 Atl. 374, 377. 
 
 To constitute an attempt, there must be 
 an intent to commit some act which wonld 
 be indictable, if done, cither from its own 
 Character of that of its natural and probable 
 coirsequences; State v. Jefferson, 3 llarr. 
 (Del.) 571; Moore v. State, 18 Ala. 532, 
 People v. Shaw, 1 Park. Cr. Cas. (N. V.. 
 327; Davidson v. State, 9 Ilumphr. (Tenn.) 
 455; 9 C. & P. 518; 1 Crawl. & D. 1" ■; 
 1 Bish. Cr. Law § 731; an act apparently 
 adapted to produce the result intended; 
 Whart. Cr. L. § 1S2 ; State v. Clarissn. 11 
 Ala. 57; Com. v. Mauley, 12 Pick. (Mass.) 
 173; Dunbar v. Harrison, 18 Ohio St. 32; 
 State v. Rawles, 65 X. C. 334; Kunkle v. 
 State, 32 Ind. 220; U. S. v. Morrow. 4 Wash. 
 C. C. 733, Fed. Cas. No. 15,S19; Rasnick v. 
 Com., 2 Va. Cas. 356; 6 C. & P. 403; 1 Leach 
 19 (though some cases require a complete 
 adaptation; 1 Bish. Cr. L. 749); an act im- 
 mediately and directly tending to the exe- 
 cution of the principal crime, and committed 
 by the prisoner under such circumsl 
 that he has the power of carrying his in- 
 tention into execution; 1 F. & F. 511; in- 
 cluding solicitations of another; 2 East ."">: 
 People v. Bush, 4 Hill (X. Y.) 133; St 
 Avery, 7 Conn. 266, is Am. Dec. 105; Com. 
 v. Harrington, 3 Pick. (Mass. i 2»;; D. S. v. 
 Worrall. 2 Dall. (U. S.) 3S4, 1 L. Ed. 126; 
 but mere solicitation, not directed to ii 
 curement of some specific crime, is not an 
 attempt; Whart. Cr. L. 17:»: see Solicita- 
 tion ; and the crime intended must lie at 
 least a misdemeanor; l <'. & M, 661, n. ; 
 Respublica v. Roberts, l Dall. (U. S.) ::'■'. l 
 L. Ed. 27. An abandoned attempt, there be- 
 ing no outside cause prompting the abandon- 
 ment, is not Indictable; Whart. Cr. L. S 137. 
 
 It has been held that an attempt to com- 
 mit a crime, which eould not, under the cir- 
 enmsiances. In' consummated, is not a crim- 
 inal attempt; Dears. & 1'.. I \ C. 197; 9 Cox 
 C. C. 497; People v. Moran, 123 N. Y. 254, 
 25 X. E. 112. L0 I. R. A. 109, 20 Am. St. Rep. 
 732: contra, x W. R. 95 t where in a re 
 mark which seems both obilcr and casual.
 
 ATTEMPT 
 
 280 
 
 ATTENDANT TERMS 
 
 the Court of Cr. Cas. Res. disapproves the 
 earlier English cases) ; Com. v. McDonald, 5 
 Cush. (Mass.) 365; People v. Jones, 46 Mich. 
 441, 9 N. W. 486; State v. Wilson, 30 Conn. 
 500; Rogers v. Com., 5 S. & R. (Pa.) 463; 
 Hamilton v. State, 36 Ind. 2S0, 10 Am. Rep. 
 22. These are commonly known as the 
 "pickpocket cases," but the doctrine that one 
 may be guilty of an attempt to commit a 
 crime, when it was for some reason unknown 
 to the perpetrator, impossible, has been ap- 
 plied in cases of other crimes, as homicide; 
 People v. Lee Kong, 05 Cal. 666, 30 Pac. 800, 
 17 D. R. A. 626, 29 Am. St. Rep. 165 ; brib- 
 ery ; Ex parte Bozeman, 42 Kan. 451, 22 Pac. 
 628 ; State v. Mitchell, 170 Mo. 633, 71 S. W. 
 175, 94 Am. St. Rep. 763; obtaining by false 
 pretense; 11 Cox C. C. 570; extortion; Peo- 
 ple v. Gardner, 144 N. T. 119, 38 N. E. 1003, 
 28 L. R. A. 699, 43 Am. St. Rep. 741 ; bur- 
 glary, where there was no property on the 
 premises which could be stolen; State v. 
 Beal, 37 Ohio St. 108, 41 Am. Rep. 490 ; abor- 
 tion, where the woman was not pregnant; 2 
 Cox C. C. 41 ; but not where the woman was 
 not quick with child when that was required 
 to constitute the offence of procuring an 
 abortion; State v. Cooper, 22 N. J. L. 52, 51 
 Am. Dec. 248; or where the charge was of an 
 attempt to commit rape where the circum- 
 stances were such that if the object had been 
 obtained it would not have been rape ; State 
 v. Brooks, 76 N. C. 1 ; People v. Quin, 50 
 Barb. (N. Y.) 128; contra, 24 Q. B. D. 357; 
 Com. v. Shaw, 134 Mass. 221; Rhodes v. 
 State, 1 Coldw. (Tenn.) 351. The cases on 
 this subject are collected in an article on 
 "Criminal Attempts" by J. H. Beale, Jr., in 
 16 Harv. L. Rev. 491. See, also, 9" L. R. A. 
 (N. S.) 263, note. The offense may exist 
 though the act may be impossible of ac- 
 complishment by the methods employed; 
 Com. v. Kennedy, 170 Mass. 18, 48 N. E. 770. 
 Mere preparations, though made with crim- 
 inal intent, do not constitute an attempt; 
 [1903] T. S. 868 (So. Afr.). 
 
 An indictment has been upheld upon a. 
 criminal intent coupled with an act (procur- 
 ing dies for counterfeitiug) which fell short 
 of an attempt under their statute; 33 E. L. 
 & E. 533. See 1 Bish. Cr. L. § 724. 
 
 An attempt to commit a crime was not 
 in itself a crime, in the early common law, 
 but it is now generally made such by statute ; 
 and in some cases attempts are specially pro- 
 vided against with reference to particular 
 crimes, as arson. See 4 L. R. A. (N. S.) 417, 
 note, where cases under some state statutes 
 are found. See Rapk; Suicide. 
 
 ATTENDANT. One who owes a duty or 
 service to another, or in sOme sort depends 
 upon him. Termes de la Ley. 
 
 ATTENDANT TERMS. Long leases or 
 mortgages so arranged as to protect the title 
 of the owner. 
 
 To raise a portion for younger children, it was 
 quite common to make a mortgage to trustees. The 
 
 powers of these trustees were generally to take 
 possession of the estate, or to sell a part of the 
 term if the portions were not duly paid. If the deed 
 did not become ipso facto void upon payment of the 
 portion, a release was necessary from the trustees 
 to discharge the mortgage. If this was not given, 
 the term became an outstanding satisfied term. The 
 purchaser from the heir then procured an assign- 
 ment of the term to trustees for his benefit, which 
 then became a satisfied term to attend the inherit- 
 ance, or an attendant term. These terms were held 
 attendant by the courts, without any assignment, 
 and operated to defeat intermediate alienations to 
 some extent There were other ways of creating 
 outstanding terms besides the method by mort- 
 gage; but the effect and general operation of all 
 these were essentially the same. By reason of the 
 want of notice, by means of registration, of the 
 making of charges, mortgages, and conveyances of 
 lands, this mode of protecting an innocent pur- 
 chaser by means of an outstanding term to attend 
 the inheritance came to be very general prior to the 
 8 & 9 Vict. c. 112, which abolished all such terms 
 as soon as satisfied. 1 Washb. R. P. 311 ; 4 Kent. 86. 
 
 ATTENTAT. Any thing whatsoever 
 wrongfully innovated or attempted in the 
 suit by the judge a quo, pending an appeal. 
 Used in the civil and canon law; 1 Add. 
 Eccl. 22, note; Ayliffe, Parerg. 100. 
 
 ATTENTION. Consideration; notice. The 
 phrase "your bill shall have attention" was 
 held to be ambiguous and not to amount to 
 an acceptance of the bill; 2 B. & Aid. 113. 
 
 ATTERMINARE. To put off to a succeed- 
 ing term ; to prolong the time of payment of 
 a debt. Stat. Westm. 2, c. 4; Co well; Blount. 
 ATTERMINING. The granting a time or 
 term for the payment of a debt. 
 
 ATTERMOIEMENT. In Canon Law. A 
 making terms; a composition, as with cred- 
 itors. 7 Low. C. 272, 306. 
 
 ATTESTATION. The act of witnessing an 
 instrument in writing, at the request of the 
 party making the same, and subscribing it as 
 a witness. 3 P. Wms. 254; Shanks v. Chris- 
 topher, 3 A. K. Marsh. (Ky.) 146; Hall v. 
 Hall, 17 Pick. (Mass.) 373. 
 
 Deeds, at common law, do not require at- 
 testation; 2 Bla. Com. 307; 3 Dane, Abr. 354; 
 Thacher v. Phinney, 7 Allen (Mass.) 149; 
 and there are several states where at com- 
 mon law it was not necessary; Ingram v. 
 Hall, 2 N. C. 205 ; Dole v. Thurlow, 12 Mete. 
 (Mass.) 157. In many of the states there 
 are statutory requirements on the subject, 
 and where such exist they must be strictly 
 complied with. It is generally safe to have 
 two witnesses, one of whom may be and usu- 
 ally is the officer taking the acknowledg- 
 ment. See Coit v. Starkweather, 8 Conn. 
 289, 20 Am. Dec. 110 ; Stone v. Ashley, 13 N. 
 H. 38; Shults v. Moore, 1 McLean 520, Fed. 
 Cas. No. 12,824; Ross \. Worthington, 11 
 Minn. 443 (Gil. 323), 88 Am. Dec. 95; 2 
 Greenl. Ev. § 275, n. ; 4 Kent 457. The requi- 
 sites are not the same in all cases as against 
 the grantor and as against purchasers. See 
 French v. French, 3 N. H. 234. 
 
 The attesting witness need not see the 
 grantor write his name: if he sign in the
 
 ATTESTATION 
 
 281 
 
 ATTORN 
 
 presence of the grantor, and at his request, 
 it is sufficient; Jar. Wills 87-91; 2 B. & P. 
 217. 
 
 Wills must usually be attested by compe- 
 tent or credible witnesses; 2 Greenl. Ev. § 
 691; Hawea v. Humphrey, 9 Pick. (Mass.) 
 350, 20 Am. Dec. 481 ; 1 Burr. 414; who must 
 subscribe their names attesting in the pres- 
 ence of the testator ; Kdolen v. I In nicy's Les- 
 see, 7 Harr. & J. (Md.) 61, 16 Am. Dec. 292; 
 Neil v. Neil, 1 Leigh (Va.) 0; l Maule & S. 
 294; 2 Curt. Eccl. 320; 3 id. 118; 2 Greenl. 
 Ev. § 678; Snider v. Burks, 84 Ala. 53, 4 
 South. 225; Mays v. Mays, 114 Mo. 5i 
 S. W. 921. And see Nickerson v. Buck, 12 
 Cush. (Mass.) 342; 1 Yes. Ch. 11; 2 Washb. 
 R. P. 682; but he need not sigu in their pres- 
 ence; Stirling v. Stirling, 64 Md. 138, 21 All. 
 273; Simmons v. Leonard, 91 Tenn. 183, is 
 S. W. 280, 30 Am. St. Rep. 875. The term 
 "presence" in a statute requiring the sub- 
 scription of witnesses to a will to be made 
 in the presence of the testator, means "con- 
 scious presence ;" Tucker v. Sandidge, 85 Va. 
 546, 8 S. E. 650. 
 
 In some states three witnesses are requir- 
 ed to wills devising lands; in the majority 
 of states only two. In Pennsylvania no at- 
 testing witnesses are required except in wills 
 making gifts to charity, where two credible 
 witnesses, not interested in the charity, are 
 required. 
 
 A person may attest a will by making his 
 mark, although the person who writes his 
 name fails to sign his own name as a witness 
 to the mark ; Davis v. Semmes, 51 Ark. 48, 
 9 S. W. 434. Persons signing as witnesses 
 must do so after the testator has signed the 
 will ; Brooks v. Woodson, 87 Ga. 379, 13 S. 
 E. 712, 14 D. R. A. 160. If a will is signed 
 by only two witnesses where three are re- 
 quired as to realty, it is inoperative as to 
 the realty but valid as to the personalty ; 
 Hays v. Ernest, 32 Fla. 18, 13 South. 451. 
 
 ATTESTATION CLAUSE. That clause 
 wherein the witnesses certify that the in- 
 strument has been executed before them, and 
 the manner of the execution of the same. 
 
 The usual attestation clause to a will is in the fol- 
 lowing formula, to-wlt: "Signed, sealed, published, 
 and declared by the above-named A B, as and for 
 his last will and testament, in the presence of us, 
 who have hereunto subscribed our names as the 
 witnesses thereto, in the presence of the said testa- 
 tor and of each other." That of deeds is generally 
 In these words: "Sealed and delivered In the pres- 
 ence of us." 
 
 ATTESTING WITNESS. One who, upon 
 being required by the parties to an instru- 
 ment, signs his name to it to prove it, and 
 for the purpose of identification. 3 Campb. 
 232; Jenkins v. Dawes, 115 Mass. 599. 
 
 ATTESTOR. One who attests or vouches 
 for. 
 
 ATTILE. The rigging or furniture of a 
 ship. Jacob, L. Diet 
 
 ATTORN. To turn over; to transfer to 
 another money or goods; to assign to some 
 particular use or service. Kennet, Paroch. 
 Antiq. 283. 
 
 Used of the part taken by the tenant in a trans- 
 fer of lands; 2 Bla. Com. 2S8 ; LIU 
 used of assent to such a transfer; 1 Washb. R. P. 
 28. The lord could not alien his land without the 
 consent of the tenant, nor could the- tenant assign 
 without the consent of his lord; 2 Bla. Com 
 Spence, Eq. Jur. 137 ; 1 \Va=hb. R. P. 28, n. Attorn- 
 ment is abolished by various statutes ; 1 Washb. R. 
 P. 330 ; Wms. R. P. 288, 3C6. 
 
 Attornment is the acknowledgment by a 
 tenant of a new landlord on the alienation 
 
 of the land and an agreement to I 
 tenant of the purchaser; Lindley v. 1 
 13 Ind. 388. 
 
 The attornment of a tenant to a stranger 
 without consent of the landlord is void; 
 Terry v. Terry, 66 S. W. 1024, 23 Ky. L. 
 Rep. 2242; Blanchard v. Tyler. 12 Mich. 339, 
 86 Am. Dec. 57; Perkins v. Potts, 53 Neb. 
 444, 73 N. W. 936. 
 
 The doctrine of attornment grew out of 
 the peculiar relations existing between the 
 landlord and his tenant under the feudal 
 law, and the reasons for the rule never had 
 any existence in this country, and is I 
 sistent with our laws, customs and institu- 
 tions. Beyond its application to estop a ton- 
 ant from denying the title of his landlord. 
 it can serve but little, if any. useful pur- 
 pose; Perrin v. Lepper. 34 Mich. 
 
 Recognition by the tenant of tfc 
 of the landlord and payment of rent to him 
 are a sufficient attornment : Bradley & Co. v. 
 Coal Co., 99 I1L App. 427; Cummii 
 Smith, 114 111. App. 35; and so is tal 
 lease from the landlord- i from 
 
 the beginning of accumulations of rent in 
 arrear; Pelton v. Place, 71 VL 430, 46 Atl. 
 63. 
 
 A conveyance of the leased land i 
 to the purchaser the right to collect the rent, 
 and the tenant cannot prevent it by refusing 
 to attorn to him; Edwards v. Clark, 83 
 Mich. 246, 47 N. W. 112, 10 L. R. \. 659; 
 nor can the tenant dispute his landlord's ti- 
 tle and attorn to another while in p 
 sion under the lease, and if he desires, after 
 his term expires, to contest bis landlord's 
 title, he must first surrender the p.'— 
 to him; McDowell v. Sutlive, 7s Ga. 142, 2 
 s. B. :>o7; Grizzard v. Roberts, 11" Ga, 41, 35 
 S. E. 201; Stover v. Davis, 57 W. Va. 196, 
 49 S. E. 1023. 
 
 Attornment is not necessary to entitle an 
 assignee of the landlord to demand payment 
 of the rent and to dispossess the tenant; 
 Wetterer v. Soubirons, 22 Misc. 7.".:». 49 N. 
 Y. Supp. 1043; Willis v. llarrell, lis Ga. 906, 
 -If. S. K. 794. Where there is a statute au- 
 thorizing summary proceedings by the as- 
 signee, etc., of the landlord, the latter cannot 
 maintain them after a conveyance of the de- 
 mised premiE s; Boyd v. Sametz, 17 Mis.-. 
 728, 40 N. Y. Supp. 1070; but such proceed-
 
 ATTORN 
 
 282 
 
 ATTORNEY 
 
 ings may be instituted against the tenant of 
 his grantor by the grantee of the landlord; 
 Doner v. Ingram, 119 Mo. App. 156, 95 S. 
 W. 983; Small v. Clark, 97 Me. 304, 54 
 Atl. 758; or by an assignee of the lease; 
 Drew v. Mosbarger, 104 111. App. 635. It 
 has been held that the action in such cases 
 could not be brought by the purchaser in his 
 own name, but in the name of the vendor 
 for his use; Cooper v. Gambill, 146 Ala. 184, 
 40 South. 827; and also that a tenant may 
 resist a warrant for forcible detainer brought 
 by one under whom he did not enter; Gray 
 v. Gray, V, Litt. (Ky.) 468. 
 
 To transfer services or homage. 
 Used of a lord's transferring the homage and serv- 
 ice of his tenant to a new lord. Bract. 81, 82; 1 
 Sullivan, Lect. 227. 
 
 ATT0RNAT0 FACIENDO VEL RECIPI- 
 ENDO. A writ to command a sheriff or 
 steward of a county court or hundred court 
 to receive and admit an attorney to appear 
 for the person that owes suit of court. Fitz. 
 N. B. 349. 
 
 ATTORNEY. One put in the place, turn, 
 or stead of another, to manage his affairs; 
 one who manages the affairs of another by 
 direction of his principal. Spelman, Gloss.; 
 Termcs de la Ley. 
 
 One who acts for another by virtue of an 
 appointment by the latter. Attorneys are 
 of various kinds. 
 
 Attorney in fact. A person to whom the 
 authority of another, who is called the con- 
 stituent, is by him lawfully delegated. 
 
 This term is employed to designate persons who 
 act under a special agency, or a special letter of at- 
 torney, so that they are appointed in factum, for 
 the deed, or special act to be performed ; but in a 
 more extended sense it includes all other agents 
 employed in any business, or to do any act or acts 
 in pais for another. Bacon, Abr. Attorney; Story, 
 Ag. § 25. 
 
 All persons who are capable of acting for 
 themselves, and even those who are disquali- 
 fied from acting in their own capacity, if 
 they have sufficient understanding, as in- 
 fants of a proper age, and femes coverts, 
 may act as attorneys of others ; Co. Litt. 
 52 a ; 1 Esp. 142 ; 2 id. 511. 
 
 Attorney -at-laiv. An officer in a court of 
 justice who is employed by a party in a 
 cause to manage the same for him. 
 
 Appearance by an attorney, on behalf of his cli- 
 ent, has been allowed in England from the time of 
 the earliest records of the courts of that country. 
 They are mentioned in Glanville, Bracton, Fleta, 
 and Britton; and a case turning upon the party's 
 right to appear by attorney is reported; Y. B. 17 
 Edw. III. p. 8, case 23. In France such appearances 
 were first allowed by letters patent of Philip le 
 Bel. A. d. 1290 ; 1 Fournel, Hist. des. avocats, 42, 92; 
 2 Loizel. Coutumes 14. It results from the nature 
 of their functions, and of their duties, as well to 
 the court as to the client, that no one can, even by 
 consent, be the attorney of both the litigating par- 
 ties in the same controversy ; Farr. 47. The name 
 of attorney has commonly been applied in this coun- 
 try to those who practise in courts of common law; 
 solicitors, in courts of equity; and proctors, in 
 courts of admiralty. 
 
 The two branches of the legal profession 
 were distinguished by Lord Brougham in 
 The Serjeant's Case in 1839 : "If you appear 
 by attorney, he represents you, but where 
 you have the assistance of an advocate you 
 
 are present Appearance by an 
 
 attorney is one thing, but admitting advo- 
 cates to plead the cause of another is a to- 
 tally different proceeding." The case is re- 
 ported in Manning's Serviens ad Legem. 
 
 As a general rule the eligibility of persons 
 to hold the office of attorney-at-law is settled 
 by local legislation or by rule of court. 
 
 The admission of attorneys to practise and 
 their powers, duties and privileges are prop- 
 er subjects of legislative control to the same 
 extent and subject to the same limitations, 
 as in the case of any other profession or 
 business ; Cook . v. De La Guerra, 24 Cal. 
 241; In re Cooper, 22 N. Y. 67. In Robin- 
 son's Case, 131 Mass. 376, 41 Am. Rep. 239, 
 this was recognized where a woman applied 
 for admission and was rejected because the 
 statute had not so provided, and it was said 
 that the duty of the courts is limited to de- 
 claring the law as it is; and whether any 
 change would be expedient is a legislative 
 question. In In re Applicants for License, 
 143 N. C. 1, 55 S. E. 635, 10 L. R. A. (N. S.) 
 288, 10 Ann. Cas. 187, a statute provided that 
 persons possessing certain qualifications 
 should be admitted to the practise of the 
 law. One of these was that such applicant 
 should file with the clerk of the court a cer- 
 tificate of good moral character signed by 
 two attorneys of the court. Protests against 
 the admission of three applicants were filed 
 on the ground that they were not of good 
 moral character, and it was held that when 
 a statute has prescribed the qualifications 
 for admission, and an applicant is shown to 
 possess these qualifications, the courts must 
 admit him. It was urged that this statute 
 impaired the inherent right of the court to 
 control its officers, but the court, quoting 
 from a dissenting opinion in an Illinois case 
 infra, said that if this is one of the inherent 
 powers of a court, it is just as inherent in 
 one court as another, and so it might come 
 about that the judges of the supreme court 
 and each of the judges of the superior courts 
 might require widely different qualifications. 
 
 The Illinois case is directly opposed to 
 this, and holds that the function of determin- 
 ing whether an applicant is sufficiently ac- 
 quainted with the law pertains to the courts 
 themselves. An act providing that persons 
 having certificates , of graduation from law 
 schools of a certain specified standard should 
 be admitted to practise law was held to be 
 an unconstitutional encroachment upon the 
 judicial branch of the government; In re 
 Day, 181 111. 73, 54 N. E. 646, 50 D. R. A. 
 519; and to the same effect, In re Branch, 
 70 N. J. L. 537, 57 Atl. 431 ; In re Mosness, 
 39 Wis. 509, 20 Am. Rep. 55, where a stat-
 
 ATTORNEY 
 
 283 
 
 ATTO i 
 
 ute was held Invalid which authorized the 
 admission of a non-resident. See 13 11a rv. 
 L. Rev. 23.3, where it is said, "The legisla- 
 ture certainly has no positive power to com- 
 pel the courts t<» admit persons to practice 
 before them," although admitting a limited 
 control to prevent the admission of unsuita- 
 ble persons. And a Pennsylvania case com- 
 menting on an act providing that the court 
 shall admit attorneys in specified cases says, 
 "We are dearly of the opinion that the Act 
 of 1887, though probably not so intended, is 
 an encroachment upon the judiciary depart- 
 ment of the government ;" Petition of Splane, 
 123 Pa. 527, 1G Atl. 481. 
 
 It has been held that, excepting when' 
 permitted by special statute, women cannot 
 act as attomeys-at-law in the various states; 
 In re Bradwell, 55 ill. :>3r, ; Bradwell v. Illi- 
 nois, 16 Wall. (U. S.) 130, 21 L. Ed. 112; 
 and the supreme court of the United States 
 will not issue a mandamus to compel a state 
 court to admit a woman to practise law be- 
 fore such court, upon the ground that she 
 has been denied a privilege or immunity be- 
 longing to her as a citizen of the United 
 States, in contravention of the constitution ; 
 In re Lockwood, 154 U. S. 116, 14 Sup. Ct. 
 10S2, 38 L. Ed. 020 ; the right to practise law 
 in a state court not being such privilege or 
 immunity; Bradwell v. Illinois, 16 Wall. (U. 
 s.) 130, 21 L. Ed. 442; but the general trend 
 of authority now is that women may be ad- 
 mitted to practise as attorneys ; In re Leach, 
 134 Ind. 665, 34 N. E. 641, 21 L. R. A. 701 ; 
 Picker's Petition, 66 X. H. 207, 20 Atl. 550, 
 24 L. R. A. 740; Richardson's Case, 3 D. R. 
 (Pa.) 200. Any woman of good standing at 
 the bar of the supreme court of any state or 
 territory or of the District of Columbia for 
 three years, and of good moral character, 
 may become a member of the bar of the su- 
 preme court of the U. S. ; Act Feb. 15, 1870. 
 In North Carolina, unnaturalized foreigners 
 cannot be licensed as attorneys; Ex parte 
 Thompson, 10 N. C. 355; Weeks, Att at Law, 
 79, note. 
 
 The business of attorneys is to carry on 
 the practical and formal parts of the suit; 
 1 Kent 307. See, as to their powers, 2 Supp. 
 to Ves. Jr. 241, 254; 3 Chit. Bla. Com. 2:'., 
 338; Bacon, Abr. Attorney; Lynch v. Com., 
 16 S. & R. (Pa.) 368, 16 Am. Dec. 582; Hus- 
 ton v. Mitchell, 14 S. & R. (Pa.) 307, 16 Am. 
 Dec. 506; Ilolker v. Parker, 7 Cra. (U. S.) 
 452, 3 L. Ed. 396. 
 
 The presumption is that an attorney has 
 authority to appear; if the person he ap- 
 pears for does not disclaim his authority, lie 
 is bound; Bacon v. Mitchell, 14 N. D. 454, 
 106 N. W. 129, 4 L. R. A. (N. S.) 244 ; Inter- 
 national Harvester Co. of America v. Champ- 
 lin, 155 App. Div. S47, 140 N. T. Supp. 842. 
 
 The authority of an attorney commences 
 with his retainer; Stone v. Bank, 174 U. S. 
 413, 19 Sup. Ct. 747, 43 L. Ed. 1028; while 
 acting generally for a client he cannot ac- 
 
 cept service without authority; Reed v. 
 Reed, 19 S. C. 548. After he has been re- 
 tained in a case, he has certain Implied 
 ers therein; Stone v. Bank, 171 I'. S. n:;, 18 
 Sup. Ct. 7 17, 43 L. Ed. 1028, In suits actual- 
 ding, he may agree that one suit shall 
 abide the event of another suit: Ohlqui 
 Farwell, 71 la. 231, 32 X. W. U77 ; <;ilmore 
 v. Lis. Co., 67 Cal. 366, 7 Pac. 781. He may 
 unue an action; Barrett v. R. Co.. 4.1 
 N. Y. 628; Simpson v. Brown, l Wash. 
 248. In Rhutasel v. Rule. 07 la. 20, 65 N. \V. 
 L013, it was held that the authority to dis- 
 miss must be specially conferred; contra, 
 Bacon v. Mitchell, 14 X. I). 154, 106 N. W. 
 L29, 4 L. R, A. (X. S.) 244. lb' may, where 
 a pending case has been referred to arbi- 
 trators, agree to the submission of all mat- 
 ters in controversy, including those not em- 
 braced in the case; Bingham's Trustees v. 
 Guthrie, 19 Pa. 418. 
 
 In general, the agreement of an attorney- 
 at-law, within the scope of his employment, 
 binds his client ; 1 Salk. 86 ; as, to amend 
 the record; Johnson v. Chaffant, 1 Linn. 
 (Pa.) 75; to refer a cause; Holker v. Park- 
 er, 7 Cra. (U. S.) 436, 3 L. Ed. 396; 3 Taunt 
 4S6 ; not to sue out a writ of error ; 1 H. 
 Bla. 21, 23; 2 Saund. 71a, b: 1 Term 388; 
 to strike off a non pros.; Reinholdt v. Albert!, 
 1 Binn. (Pa.) 400;. to waive a judgment by de- 
 fault; 1 Archli. Pr. 26; or waive a jury trial; 
 Stevenson v. Felton, 99 N. 0. 58, 5 S. E5. 399. 
 But the act must be within the scope of his 
 authority. He cannot, for example, without 
 special authority, purchase lands for the cli- 
 ent at sheriff's sale; Pearson v. Morri on, 2 
 S. & R. (Pa.) 21; Beardsley v. Boot, 11 .lohns. 
 (X. Y.) 464, 6 Am. Dec. 3S6 ; or extend the 
 time for payment of mon< ise a judg- 
 
 ment in ejectment, entered by consent: Beat- 
 ty v. Hamilton, 127 Pa. 71, 17 Atl. 7.",.-); or 
 compromise a claim; Brockley v. Broekley, 
 122 Pa. 1, 15 Atl. 646; Willard v. Gas-Fixture 
 Co., 47 Mo. App. 1; U. S. v. Beebe, 180 U. 
 S. 343, 21 Sup. Ct. 371, 45 L. Ed. 563; con- 
 tra, Beliveau v. Mfg. Co., 68 X II. 225, 40 
 Atl. 734, 44 L. R. A. 167, 73 Am. St. Rep. 
 577; or satisfy a judgment for less than is 
 due; Peters v. Lawson, 66 Tex. 336, 17 S. 
 W. 734. 
 
 In the absence of fraud, the client is con- 
 cluded by the acts, and even by the omissions, 
 of his attorney; Rogers v. Greenwood, 14 
 Minn. 3:;:: (Gil. 256); Sampson v. Ohleyer, 
 22 Cal. 200; Weeks. Att. at Law 375. 
 
 The mistake or unskilltulness of the at- 
 torney is not enough to authorize an injunc- 
 tion to restrain the enforcement of a judg- 
 ment; Donovan v. Miller, 12 Idaho ft 
 Pac. 82, 9 L. R. A. (X. S.) 524, 1<> Ann. (as. 
 444; Hamhrick v. Crawford, •"." Ga. 
 
 v. Hamilton. 132 Ind. 406, 31 X. D. 
 1117; Payton v. McQuown, 07 Ky. 7.">7. :;i s. 
 W. ST!. 53 Am. St. Rep. 137. and 31 L. R. A. 
 33, where the cases are collected in a note, 
 Xor is the mistake of counsel upon a point of
 
 ATTORNEY 
 
 284 
 
 ATTORNEY 
 
 law ground for a new trial ; Patterson v. Mat- 
 thews, 3 Bibb (Ky.) SO. Relief, however, has 
 been granted on this ground, notably in 
 Sbarp v. New York, 31 Barb. (N. Y.) 578, 
 which with an early case in Tennessee is 
 criticized as deciding "with a spirit of hu- 
 manity but with little regard for the settled 
 principles of law" ; Black, Judg. sec. 375. 
 
 In general, he has all the powers exercised 
 by the usages of the court in which the suit 
 is pending; Weeks, Att. at Law 374. 
 
 The principal duties of an attorney are 
 — to be true to the court and to his client; 
 to manage tbe business of his client with 
 care, skill, and integrity; 4 Burr. 2061; 1 
 B. & Aid. 202; 2 Wils. 325; 1 Bingh. 347; 
 Mech. Ag. 824; to keep his client informed 
 as to the state of his business; to keep his 
 secrets confided to him as such. And he is 
 privileged from disclosing such secrets when 
 called as a witness; Alderman v. People, 4 
 Mich. 414, 69 Am. Dec. 321 ; Sibley v. Waf- 
 fle, 16 N. Y. 180; Martin v. Anderson, 21 Ga. 
 301 ; 40 E. L. & Eq. 353 ; Sargent v. Inhab- 
 itants of Hampden, 38 Me. 5S1. See Cli- 
 ent; Confidential Communications. His 
 first duty is the administration of justice, 
 and his duty to his client is subordinate to 
 that; In re Thomas, 36 Fed. 242. If an at- 
 torney while employed by one side secretly 
 seeks employment on the other side, promis- 
 ing to give information acquired during such 
 employment, he will be disbarred ; U. S. v. 
 Costen, 38 Fed. 24; but an attorney who 
 learns from his client, in a professional con- 
 sultation, or in any other manner, that the 
 latter intends to commit a crime, it seems is 
 bound by a higher duty to society and to the 
 party to be affected to disclose it; State v. 
 Barrows, 52 Conn. 323. 
 
 In estimating the value of services render- 
 ed by an attorney it is proper to take into 
 account the time necessarily employed in and 
 the success of the litigation ; Berry v. Davis, 
 34 la. 594; the amount of values involved; 
 Smith v. R. Co., 60 la. 515, 15 N. W. 303; 
 and recovered; Parsons v. Hawley, 92 la. 
 175, 60 N. W. 520; the ability, learning and 
 experience of the attorney and his standing 
 in the profession; Clark v. Ellsworth, 104 
 la. 442, 73 N. W. 1023; the character of the 
 claim and the amount of the services to be 
 rendered; Morehouse v. R. Co., 185 N. Y. 
 520, 78 N. E. 179, 7 Ann. Cas. 377. 
 
 An attorney's contract with his client for 
 a fifty per cent, contingent fee is not nec- 
 essarily unenforceable on the ground of be- 
 ing unconscionable; In re Fitzsimons, 174 
 N. Y. 15, 66 N. E. 554, but see to the con- 
 trary, 48 Ohio L. Bui. 238, discussing Hermon 
 v. R. Co., 121 Fed. 184; Muller v. Kelly, 125 
 Fed. 212, 60 C. C. A. 170. These cases were 
 not decided on the ground of champerty, 
 but of taking improper advantage of the 
 fiduciary relation. Fifty per cent, of the 
 claim was held not to be extortionate in a 
 difficult and complicated case, "where the at- 
 
 torney exercised no influence In adjusting 
 the amount, but it was voluntarily offered, 
 and where he had paid out of it large 
 amounts to other counsel ; Taylor v. Bemiss, 
 110 U. S. 42, 3 Sup. Ct. 441, 28 L. Ed. 64. 
 
 Where an attorney had agreed to prosecute 
 an action for a contingent fee of one-half the 
 amount recovered, it was held that the client 
 could maintain an action against the attor- 
 ney for the whole amount so recovered less 
 the costs paid by the attorney; Ackert v. 
 Barker, 131 Mass. 436. See Champerty. 
 
 A contract for a contingent fee does not 
 deprive the client of the right to substitute 
 another attorney ; Johnson v. Ravitch, 113 
 App. Div. 810, 99 N. Y. Supp. 1059. 
 
 Any agreement conditioned on obtaining a 
 divorce or intended or calculated to facili- 
 tate its obtainment is void ; Barngrover v. 
 Pettigrew, 128 la. 533, 104 N. W. 904, 2 L. 
 R. A. (N. S.) 260, 111 Am. St. Rep. 206, 
 where the contract was to procure evidence 
 to obtain a divorce. The parties to the di- 
 vorce suit compromised and settled their dif- 
 ferences and the attorney sued to recover on 
 the contract It was held that he could not 
 recover on a quantum meruit because the 
 services rendered were in themselves illegal. 
 
 A provision of a trust mortgage deed that 
 in case of its sale an attorney's fee of five 
 per cent, should be paid out of the proceeds 
 was held void as against public policy though 
 the fee was reasonable ; Turner v. Boger, 
 126 N. C. 300, 35 S. E. 592, 49 L. R. A. 590. 
 
 A contract between a wife and her so- 
 licitor providing that for his services in pro- 
 curing an allowance of alimony and enforc- 
 ing its payment he shall receive a share of 
 the alimony recovered is void, not only be- 
 cause the claim for alimony is incapable of 
 assignment, but also because the contract is 
 against public policy; Lynde v. Lynde, 64 
 N. J. Eq. 736, 52 Atl. 694, 58 L. R. A. 471, 
 97 Am. St. Rep. 692. Here the Court of 
 Chancery took jurisdiction over the solicitor 
 as an officer of the court, in order to require 
 him to do justice to his client. 
 
 Any contract whereby a client Is prevent- 
 ed from settling or discontinuing a suit is 
 void, as such an agreement would encourage 
 litigation; Kansas City Elevated R. Co. v. 
 Service, 74 Kan. 316, 94 Pac. 262, 14 L. R. A. 
 (N. S.) 1105 ; Huber v. Johnson, 68 Minn. 74, 
 70 N. W. 806, 64 Am. St. Rep. 456; Board- 
 man v. Thompson, 25 la. 487; Weller v. R. 
 Co., 68 N. J. Eq. 659, 61 Atl. 459, 6 Ann. 
 Cas. 442; Davis v. Chase, 159 Ind. 242, 64 
 N. E. 88, 853, 95 Am. St. Rep. 294; North 
 Chicago St. R. Co. v. Ackley, 171 111. 100, 49 
 N. E. 222, 44 L. R. A. 177 ; Davis v. Webber, 
 66 Ark. 190, 49 S. W. 822', 45 L. R. A. 196, 
 74 Am. St. Rep. 81 ; In re Snyder, 190 N. Y. 
 66, 82 N. E. 742, 14 L. R. A. (N. S.) 1101, 123 
 Am. St Rep. 533, 13 Ann. Cas. 441 ; Davy v. 
 Ins. Co., 78 Ohio St. 256, 85 N. E. 504, 17 L. 
 R. A. (N. S.) 443, 125 Am. St. Rep. 694. 
 
 But courts have an inherent power to pro-
 
 ATTORNEY 
 
 2S5 
 
 ATTuRXLY 
 
 teet attorneys against settlements consum- 
 mated with the express purpose of depriv- 
 ing them of their compensation; Potter v. 
 Min. Co., 19 Utah 421, 57 Pac. 270; Jones v. 
 Morgan, 39 Ga. 310, 99 Am. Dec. 458 ; Jack- 
 son v. Stearns, 48 Or. 25, 84 Pac. 798, 5 L. 
 R. A. (N. S.) 390. The attorney may proceed 
 in the original suit in the name of his client 
 notwithstanding the settlement; Randall v. 
 Van Wagenen, 115 X. V. 627, 22 X. B. 361, 
 12 Am. St. Rep. 828. But this rule applies 
 only when the attorney has acquired a lien; 
 Weicher v. Cargill, 86 .Minn. 271, 90 N. W. 
 402 ; and it is said that there are serious 
 practical difficulties in the way of such a pro- 
 cedure when the action is to recover unliq- 
 uidated damages. The power to arrest or 
 rescind the effect of a settlement is cautious- 
 ly exercised in respect to suits for dehts ac- 
 tually owing; and the power would be more 
 cautiously applied to actions for torts, where 
 it would be impracticable for the court, upon 
 the opposing representations of the parties 
 and without hearing the proof, to ascertain 
 whether there was a just cause of action or 
 whether there was ground to distrust the 
 justice of the settlement. The whole case 
 would have to be tried before the court could 
 pronounce that the suit was properly insti- 
 tuted, and that it afforded prima facie 
 ground for the award of costs ; Boogren v. 
 R. Co., 97 Minn. 51, 106 N. W. 104, 3 L. R. A. 
 (N. S.) 379, 114 Am. St. Rep. 691, where the 
 court adopting the language of Betts, J., in 
 Peterson v. Watson, 1 Blatchf. & H. 487, Fed. 
 Cas. No. 11,037, concludes: "That manifestly 
 could never be done without serious incon- 
 venience and expense; and the better prac- 
 tical rule will doubtless be to leave the proc- 
 tor to look to the responsibility of his client 
 alone. Ordinarily he will take the precau- 
 tion to secure himself against the mischanc- 
 es of suits of this character ; and if he does 
 not, no urgent equity is thereby created for 
 an extraordinary interference on his behalf 
 by the court." This practice may occasional- 
 ly work a hardship to the attorneys, but it 
 is nevertheless a salutary rule. 
 
 As to the right of the attorney to recover 
 under statutes giving him a lien, where his 
 client has settled without his knowledge, see 
 Lien. 
 
 For a violation of his duties an action will, 
 In general, lie ; Cavillaud v. Yale, 3 Cal. 108, 
 58 Am. Dec. 3S8 ; 2 Greenl. Ev. §§ 145, 146; 
 and in some cases he may be punished by 
 attachment. Official misconduct may be in- 
 quired into in a summary manner, and the 
 name of the offender stricken from the roll; 
 Rice v. Com., 18 B. Monr. (Ky.) 472 : Bradley 
 v. Fisher, 13 Wall. (U. S.) 335, 20 L. Ed. 646 ; 
 17 Am. Dec. 194 note. See Ex parte Gar- 
 land, 4 Wall. (U. S.) 333, 18 L Ed. 366 ; Dis- 
 bar. 
 
 It is held that to solicit causes of action 
 tends to promote litigation and to degrade 
 
 the profession and that a contract so ob- 
 tained is invalid; Ingersoll v. Coal Co., 117 
 Tenn. 263, 98 S. W. 178, 9 L. R. 
 
 L9 Am. St. Rep. 1003, L0 Am 
 where the plaintiffs, a firm of atP 
 solicited a large number of ■ >r per- 
 
 sona] injuries and brought suit 
 
 lants compromised with the claimants 
 without the consent of the attorneys, and the 
 latter sued the defendants for the lees prom- 
 I ed by the claimants. 
 
 An attorney who enters into a barratrous 
 contract to brinj,' suits cannot recover upon 
 an implied contract for services rendered in 
 a suit brought pursuant to Buch contract, 
 though the services are not, m them 
 and apart from the barratrous contract, im- 
 proper or illegal; Gammons v. Johnson, 76 
 Minn. 76, 78 N. W. 1035; Gammons \ 
 branson, 78 Minn. 21, 80 X. W. 7T'.». A con- 
 tract whereby an attorney agrees to pay for 
 business brought to him is void; Alpers v. 
 Hunt, S6 Cal. 78, 24 Pac. S46. 9 L. R. A. 4-::. 
 21 Am. St. Rep. 17; but this decision was 
 under a statute providing for the disbarment 
 of attorneys who lent their names to be used 
 in legal proceedings by persons who were 
 not attorneys. That case was followed in 
 Langdon v. Conlin, <J7 Neb. 243, !>:; \. w 
 60 L. R. A. 429, 108 Am. St. Rep. 643, 2 Ann. 
 Cas. 834, where the facts were similar and 
 the statute declared the rights and dut 
 attorneys. That such contracts are void as 
 against public policy and good morals is held 
 in Lyon v. Hussey, 82 Hun 15, 31 X. V. 
 Supp. 281; Burt v. Place, 6 Cow. (X. Y.) 431, 
 where a statute prohibits the promise of a 
 valuable consideration to any person as an 
 inducement to placing a claim in the hands 
 of an attorney. An attorney was held to be 
 prohibited from paying or agreeing to pay a 
 layman for inducing a client to place his 
 claim in the attorney's hands; In re Clark, 
 184 N. Y. 222, 77 N. E. 1. affirming 108 App. 
 Div. 150, 95 X. Y. Supp. 38S. But see to the 
 contrary; Vocke v. Peters, 5S 111. App. 338, 
 where an agreement by attorneys to pay a 
 commission for all business brought to them 
 was held not contrary to public policy; and 
 to the same effect, Dunne v. Herrick, 37 111. 
 App. ISO, where an attorney's clerk solicited 
 business for him and a contract between at- 
 torney and client to pay the attorney one- 
 half the amount recovered in a suit for per- 
 sonal injuries was held valid and binding on 
 the client. 
 
 The execution and delivery by an attorney 
 at law of a power of attorney to sign his 
 name to any and all letters of collection and 
 other business of the corporation as long as 
 the attorney in fact should remain in the 
 employ of the corporation, is unprofessional 
 conduct requiring discipline; In re Roths- 
 child, 140 App. Div. 583, 125 X. Y. Supp. 629, 
 where, as the offence had never been passed 
 upon by the court, the attorney was suspend-
 
 ATTORNEY 
 
 28G 
 
 ATTORNEY-GENERAL 
 
 ed from practice for one year with leave to 
 apply for reinstatement on satisfactory proof 
 of his conduct meanwhile. 
 
 An attorney is not an insurer of the result 
 in a case in which he is employed, and only 
 ordinary care and diligence can be required 
 of him ; Babbitt v. Bumpus, 73 Mich. 331, 41 
 N. W. 417, 16 Am. St. Rep. 585. The au- 
 thority of an attorney is revoked by the 
 death of the client, and he cannot proceed 
 further in the cause without a new retainer 
 from the proper representative; Prior v. 
 Kiso, 9G Mo. 003, 9 S. W. 898 ; Moyle v. Lan- 
 ders, 78 Cal. 99, 20 Pac. 241, 12 Am. St. 
 Rep. 22. 
 
 An attorney is entitled to two kinds of 
 liens for his fees, one upon the papers of his 
 client in his possession, called a retaining 
 lien, and the other upon a judgment or fund 
 recovered, called a charging lien ; Goodrich 
 v. McDonald, 112 N. Y. 157, 19 N. E. 649; 
 Sanders v. Seelye, 128 111. 631, 21 N. E. 601 ; 
 Strohecker v. Irvine, 76 Ga. 639. 2 Am. St. 
 Rep. 62. See Blackburn v. Clarke, S5 Tenn. 
 506, 3 S. W. 505 ; Taylor Iron & Steel Co. v. 
 Higgins, 66 Hun 626, 20 N. Y. Supp. 746. 
 
 "A corporation cannot practice law, di- 
 rectly or indirectly ;" In re Co-operative 
 Law Co., 198 N. Y. 479, 92 N. El 15, 32 L. R. 
 A. (N. S.) 55, 139 Am. St. Rep. 839, 19 Ann. 
 Cas. 879. 
 
 In all United States courts parties may 
 plead and manage their cases personally or 
 by counsel as the rules of such courts pro- 
 vide. R. S. § 747. 
 
 See Lien; Champerty; Retainer; Ethics, 
 Legal; Barrister; Disbar; Solicitor; Ad- 
 vocati. 
 
 ATTORNEY'S CERTIFICATE. A certifi- 
 cate of the commissioners of stamps that the 
 attorney therein named has paid the annual 
 duty. This must be renewed yearly; and the 
 penalty for practising without such certifi- 
 cate is fifty pounds ; Stat. 37 Geo. III. c. 90, 
 §§ 26, 28, 30. See also 7 & 8 Vict. c. 73, §§ 
 21-26 ; 16 & 17 Vict. c. 63. 
 
 ATTORNEY-GENERAL. A great officer, 
 under the king, created by letters patent, 
 whose office is to exhibit informations and 
 prosecute for the crown in matters criminal ; 
 to file bills in the exchequer in any matter 
 concerning the king's revenue. Others may 
 bring bills against the king's attorney; 3 
 Bla. Com. 27 ; Termes de la Ley. He is usu- 
 ally addressed as "Mr. Attorney." 
 
 In each state there is an attorney-general, 
 or similar officer, who appears for the state 
 of people, as in England the attorney-gen- 
 eral appears for the crown. 
 
 "The office is a public trust, which involves 
 the exercise of an almost boundless discre- 
 tion by an officer who ought to stand as im- 
 partial as a judge." Com. v. Burrell, 7 Pa. 
 39, per Gibson, C. J. 
 
 ATTORNEY-GENERAL OF THE UNIT- 
 ED STATES. An officer appointed by the 
 
 president. His duties are to prosecute and 
 conduct all suits in the supreme court in 
 which the United States shall be concerned, 
 and give his advice upon questions of law 
 when required by the president, or when 
 requested by the heads of any of the depart- 
 ments, touching matters that concern their 
 departments ; Act of 24th Sept. 1789. He is 
 a member of the cabinet and under the act 
 of congress of Jan. 19, 1886, U. S. Rev. Stat. 
 1 Supp. 487, is the fourth in succession, aft- 
 er the vice-president, to the office of presi- 
 dent in case of a vacancy. See Department 
 of Justice; Cabinet. 
 
 ATTORNEY, LETTER OF. See Power 
 op Attorney. 
 
 ATTORNEY, WARRANT OF. See War- 
 rant op Attorney. 
 
 ATTORNMENT. See Attorn. 
 
 AU BES0IN. (Fr. in case of need. "At* 
 
 bcsoin chez Messieurs a ." "In 
 
 case of need, apply to Messrs. at "). 
 
 A phrase used in the direction of a bill 
 of exchange, pointing out the person to 
 whom application may be made for payment 
 in case of failure or refusal of the drawee 
 to pay ; Story, Bills § 65. 
 
 A U B A I N E . See Droit d'Aubaine. 
 
 AUCTION. A public sale of property to 
 the highest bidder. See 19 Cent. L. J. 247; 
 Bateman, Auct. 
 
 The manner of conducting an auction Is immate- 
 rial, whether it be by public outcry or by any other 
 manner. The essential part is the selection of a 
 purchaser from a number of bidders. In a case 
 where a woman continued silent during the whole 
 time of the sale, but when any one bid she gave him 
 a glass of brandy, and, when the sale broke up, the 
 person who received the last glass of brandy was 
 taken Into a private room and he was declared to 
 be the purchaser, this was adjudged to be an auc- 
 tion ; 1 Dowl. Bailm. 115. t 
 
 Auctions are generally conducted by per- 
 sons licensed for that purpose. A bidder 
 may be employed by the owner, if it be done 
 bond fide and to prevent a sacrifice of the 
 property under a given price; National Fire 
 Ins. Co. v. Loomis, 11 Paige Ch. (N. Y.) 431; 
 Veazie v. Williams, 3 Sto. 622, Fed. Cas. No. 
 16,907; The Raleigh, 37 Fed. 125. It has 
 been held that the owner should give fair 
 notice of this so that no one should be mis- 
 led or deceived ; Miller v. Baynard, 2 Houst. 
 (Del.) 559, 83 Am. Dec. 168; but where bid- 
 ding is fictitious, and by combination with 
 the owner to mislead the judgment and in- 
 flame the zeal of others, it would be a fraud- 
 ulent and void sale ; Poll. Contr. 539 ; Veazie 
 v. Williams, 8 How. (U. S.) 134, 12 L. Ed. 
 1018; id., 3 Sto. 611, Fed. Cas. No. 16,907; 
 Webster v. French, 11 111. 254; Smith v. 
 Greenlee, 13 N. C. 126, 18 Am. Dec. 564; 
 Phippen v. Stickney, 3 Mete. (Mass.) 384; 
 Switzer v. Skiles, 3 Gilm. (111.) 529, 44 Am. 
 Dec. 723. But see 2 Kent 539, where this 
 subject is considered. And see 6 J. B. Moore 
 316 ; 15 M. & W. 367 ; Baham v. Bach, 13 La.
 
 AUCTION 
 
 287 
 
 AUCTlnX 
 
 287, 33 Am. Dec. 501 ; Towle v. Leavitt, 23 
 N. H. 360, 55 Am. Dec. 195; McDowell v. 
 Simnis, 41 N. C. 278; Tomlinson v. Savage, 
 id., 430; Pennock's Appeal, 14 Pa. 4-10, 53 
 Am. Dec. 561. Unfair conduct on the part 
 of the purchaser will avoid the sale; G J. B. 
 Moore 21G; 3 B. & B. 116; Veazie v. Wil- 
 liams, 3 Sto. 623, Fed. Cas. No. 16,907; 
 Wooton v. Ilinkle, 20 Mo. 290; Smith v. 
 Greenlee, 13 N. C. 120. 18 Am. Lee. 564. 
 Where a buyer addressed the company as- 
 sembled at an auction and persuaded them 
 that they ought not to bid against him, the 
 purchase by such buyer was held void ; 3 
 B. & B„ 116. 
 
 Where a sale is "without reserve" neither 
 the vendor nor any one on his behalf can 
 bid, and the property must go to the highest 
 bidder; see Towle v. Leavitt, 23 X. II. 360, 
 55 Am. Dec. 195. An auctioneer who offers 
 his property for sale without reserve pledges 
 himself that the sale shall be without re- 
 serve, or contracts that the property shall 
 go to the highest bona fide bidder, and in 
 case the owner overbid, the highest bona fide 
 bidder may sue the auctioneer as upon a 
 contract; 1 El. & El. 309; such a case is 
 not affected by the Statute of Frauds, § 17, 
 which relates only to direct sales; id. This 
 rule was approved in [1S99] 2 Ch. 73; and 
 see [1904] 41 Sc. L. Rep. 688. 
 
 In the United States the influence of the 
 leading English case (1 El. & El. 309) is 
 less plainly shown and the rule is even less 
 clearly defined; Tillman v. Dunman, 114 Ga. 
 406, 40 S. E. 244, 57 L. R. A. 7S7, 8S Am. St. 
 Rep. 28. 
 
 In New York it is said there is no case in 
 that state which is directly in point upon 
 the proposition that as a matter of law, 
 where an auctioneer advertises a sale at 
 public auction, and in response to this invi- 
 tation bidders attend, an implied contract 
 arises between them that the property will 
 be knocked down to the highest bidder; 
 Taylor v. Harnett, 26 Misc. 362, 55 N. T. 
 Supp. 988. In this case the auctioneer re- 
 fused to accept the highest bid because of its 
 inadequacy ; to the same effect, Newman v. 
 Vonderheide, 9 Ohio Dec. Reprint 164; but 
 see Hartwell v. Gurney, 16 R. I. 78, 13 Atl. 
 113, where it is said obiter that the stricter 
 rule seems to be the just and honest one 
 and ought to prevail, for an offer to sell at 
 auction is an offer to sell to the highest bid- 
 der, and every bid is an inchoate acceptance 
 entitling the bidder to the property offered, 
 if it turns out to be the highest and there is 
 no retraction on either side before the ham- 
 mer falls. But it has been held that an an- 
 nouncement that a certain property will be 
 sold to the highest bidder is a mere declara- 
 tion of an intent to hold an auction ; Ander- 
 son v. R. Co., 107 Minn. 296, 120 X. \Y. 39, 
 20 L. R. A. (N. S.) 1133, 131 Am. St Rep. 
 462, 16 Ann. Cas. 379. 
 
 A bid may be retracted by the bidder or 
 the property withdrawn 1"'/ 
 has been signified; 3 Term 148; 4 B 
 653; 6 Hare 443; Benj. Sales § 270; 
 41 Sc. L. Eep. 688. The making the bid is 
 the offer and it is accepted and made a 
 ing unilateral contract by the fall of the 
 hammer; 13 Ilarv. l. Rev. 58, citi 
 L48; r, r. & s. 720; Blossom v. R. < 
 Wall. (U. s.i 196, is l. Ed. 43; i 
 Hawkins. 20 Fla. 1-41. 
 
 Sales at auction are within the Statu 
 Frauds; V. B. & < '. 945; 7 Ea 
 Del] v. Leeman, 4.". Me. 158, 69 Am, 
 People v. White, 6 Cal. 75; Talman v. l 
 lin, 3 Duer (N. Y. I 395. 
 
 In Louisiana a bid made at an auction 
 sale, although formally accepted, is not a 
 complete sale, but only a promise of sale, 
 whi.h gives a right of action for breach or a 
 claim for specific performance; Collins v. 
 Desmaret, 45 La. Ann. 108, 12 South 
 In California and Dakota the codes provide 
 that if the auctioneer, having authority to 
 do so, announces that the sale will be with- 
 out reserve, the highest bona fide bidder baa 
 an absolute right to the completion of the 
 sale to him, and that bids by the seller or 
 any agent for him are void. But they a!-. 
 enact that the bidder may withdraw at any 
 time before the hammer falls. CaL Civ. 
 Code § 1796; Dak. Civ. Code 3 1026. Else- 
 where, it is complete, at common law. See 
 Bateman, Auctions 180. Error in description 
 of real estate sold will avoid the sale if it he 
 material; 4 Bingh. N. C. 463; 8 C. & I'. 469; 
 ,1 Y. & C. 658; but an immaterial variation 
 merely gives a case for deduction from the 
 amount of purchase-money ; 2 Kent 437; Jud- 
 son v. Wass, 11 Johns. (N. Y.) 525, 6 Am. 
 Dec. 392; State v. Gaillard. '_> Fay (S. C.) 11. 
 1 Am. Dec. 628; McFerran v. Taylor, 3 Cra. 
 (U. S.) 270, 2 L. Ed. 436. 
 
 See By-Bidding. 
 
 AUCTI0NARIUS (Lat.). A seller; a re- 
 grator ; a retailer; one who bought and sold; 
 an auctioneer, in the modern sense, 
 man, Gloss. One who buys poor, old, worn- 
 out things to sell again at a greater price. 
 l>u ('ange. 
 
 AUCTIONEER. A person authorized by 
 law to sell the goods of others at public sale; 
 one who conducts a public sale or auction; 
 Com. v. Barnden, 19 Pick. <Mass. i 482. Ho 
 is the agent of the seller: Ana Contr. 
 3 Term 148; Boinesl v. Leignez, - Rich. < s. 
 O.) 464; and of the buyer, tor sonic purpos- 
 es at least; 4 Ad. & E. 7 . & B. 57; 
 MeComb v. Wright. 4 Johns. Ch. | X. Y. I 
 669; Trustees of First Baptist Church of 
 Ithaca v. Bigelow, i<; Wend. (N. Y.) 28; 
 Cleaves v. Foss, 4 Greenl. (Me.) 1; Inhabit- 
 ants of Alna v. Plummer, id. 258; Brent v. 
 Green, 6 Leigh (Va.) ir>; 2 Kent 539; Walk- 
 er v. Berring, 21 Gratt. (Ya.) 678, S Am. 
 Rep. 616; Harvey r. Stevens, 43 Vt 653;
 
 AUCTIONEER 
 
 288 
 
 AUCTOR' 
 
 White v. Watkins, 23 Mo. 423; [1902] 2 Ch. 
 266; up to the moment of sale he is agent 
 for the vendor exclusively ; it is only when 
 the bidder becomes the purchaser that the 
 agency for the buyer begins; Benj. Sales § 
 270. He is the agent of both parties at a 
 public sale within the Statute of Frauds; 7 
 East 55S; Pugh v. Chesseldine, 11 Ohio 109, 
 37 Am. Dec. 414 ; Harvey v. Stevens, 43 Vt. 
 655 ; Benj. Sales § 268. And see 16 Harv. L. 
 Rev. 220, where it is remarked that the case 
 where an agent acts for both parties at a 
 sale is in itself anomalous; but not if he 
 sells goods at a private sale; 1 H. & C. 484. 
 The memorandum must be made at the time 
 of the sale; Horton v. McCarty, 53 Me. 394; 
 Smith v. Arnold, 5 Mas. 414, Fed. Cas. No. 
 13.004. An auctioneer employed to sell goods 
 in his possession ordinarily has authority to 
 receive payment for them, but if he acts as 
 a mere crier or broker for a principal who 
 retains possession, he would not have such 
 authority ; Benj. Sales § 741. He has a spe- 
 cial property in the goods, and may bring 
 an action for the price ; 7 Taunt. 237 ; Beller 
 v. Block, 19 Ark. 566; Hulse v. Young, 16 
 Johns. (N. T.) 1; see 5 M. & W. 645 ; 5 B. 
 & Ad. 568 ; and has a lien upon them for the 
 charges of the sale, his commission, and the 
 auction-duty; Harlow v. Sparr, 15 Mo. 184; 
 2 Kent 536. 
 
 Where auctioneers were employed to sell 
 goods upon the terms that they were to be 
 paid a lump sum by way of commission and 
 were further to be paid all expenses, they 
 were not entitled to charge the owner with 
 the gross amounts of printing and advertis- 
 ing bills (where they had received discounts 
 from printers and proprietors, in the honest 
 belief that they were entitled to have such 
 discounts allowed them) ; L. R. [1905] 1 K. 
 B. 1. 
 
 He must obtain the best price he fairly 
 can, and is responsible for damages arising 
 from a failure to pursue the regular course 
 of business, or from a want of skill ; 3 B. & 
 Aid. 616; and where he sells goods as the 
 property of one not the owner, is liable for 
 their value to the real owner ; 7 Taunt. 237 ; 
 Hoffman v. Carow, 20 Wend. (N. Y.) 21; 
 Allen v. Brown, 5 Mo. 323; and if he sells 
 goods with notice that they were obtained 
 by fraud of another, he is liable to the real 
 owner; Morrow Shoe Mfg. Co. v. Shoe Co., 
 57 Fed. 685, 6 C. C. A. 508, 24 L. R. A. 417. 
 See Hutchinson v. Gordon, 2 Harr. (Del.) 179. 
 lor false representation or breach of con- 
 tract, the vendee of land sold at auction has 
 a right of action against the vendor as well 
 as the auctioneer to recover a deposit paid 
 at the time of sale; Mahon v. Liscomb, 19 
 N. Y. Supp. 224. See Agent; Auction; Bid- 
 deb. 
 
 AUCTOR. In Roman Law. An auctioneer. 
 
 In auction sales, a spear was fixed upright in the 
 forum, beside which the Beller took his stand ; 
 
 hence goods thus sold were said to be sold sub hasta 
 (under the spear). The catalogue of goods was on 
 tablets called auctionarice. 
 
 AUDIENCE. A hearing. 
 
 It is usual for the executive of a country to whom 
 a minister has been sent, to give such minister an 
 audience. And after a minister has been recalled, 
 an audience of leave usually takes place. 
 
 As to the right of audience in court, see 
 Barrister; Disbar. 
 
 AUDIENCE COURT. See Court of Audi- 
 
 ENCS. 
 
 AUDITA QUERELA (Lat). A form of 
 action which lies for a defendant to recall 
 or prevent an execution, on account bf some 
 matter occurring after judgment amounting 
 to a discharge, and which could not have 
 been, and cannot be, taken advantage of 
 otherwise. Thatcher v. Gammon, 12 Mass. 
 268. If in a justice's suit the defendant is 
 out of the state at the time of the service 
 of the writ and remains away until after the 
 return day and has no notice of suit, judg- 
 ment by default may be set aside by audita 
 querela; Sawyer v. Cross, 65 Vt. 158, 26 Atl. 
 528; but not unless the action was on its 
 face appealable; Sawyer v. Cross, 66 Vt 
 616, 30 Atl. 5. 
 
 It is a regular suit in which the parties 
 appear and plead ; Brooks v. Hunt, 17 Johns. 
 (N. Y.) 484; Gleason v. Peck, 12 Vt. 56, 36 
 Am. Dec. 329 ; Clark v. Hydraulic Co., 12 Vt. 
 435; Melton v. Howard, 7 How. (Miss.) 103; 
 Avery v. U. S., 12 Wall. (U. S.) 305, 20 L. 
 Ed. 405; and in which damages may be re- 
 covered if execution was issued improperly ; 
 Brooke, Abr. Damages 38 ; but the writ must 
 be allowed in open court, and is not of itself 
 a supersedeas; Emery v. Patton, 9 Phila. 
 (Pa.) 125. 
 
 It is a remedial process, equitable in its 
 nature, based upon facts, and not upon the 
 erroneous judgments or acts of the court; 
 2 Wms. Saund. 148, n. ; Lovejoy v. Webber, 
 10 Mass. 103 ; Brackett v. Winslow, 17 Mass. 
 159; Little v. Cook, 1 Aik. (Vt.) 363, 15 Am. 
 Dec. 698; Porter v. Vaughn, 24 Vt. 211. 
 
 It lies where an execution against A has 
 been taken out on a judgment acknowledged 
 by B. without authority, in A's name; Fitzh. 
 N. B. 233; and see Cro. Eliz. 233; and gen- 
 erally for any matters which work a dis- 
 charge occurring after judgment entered; 
 Cro. Car. 443; Pettit v. Seaman, 2 Root 
 (Conn.) 178; Com. v. Whitney, 10 Pick. 
 (Mass.) 439; see 5 Co. 86 & ; and for mat- 
 ters occurring before judgment which the 
 defendant could not plead through want bf 
 notice or through collusion or fraud of the 
 plaintiff; Johnson v. Harvey, 4 Mass. 485; 
 Smock v. Dade, 5 Rand. (Va.) 639, 16 Am. 
 Dec. 780; Wardell v. Eden, 2 Johns. Cas. 
 258; Williams v. Butcher, 1 W. N. C. (Pa.) 
 304. 
 
 It may be brought after the day on which 
 judgment might have been entered, al-
 
 AUDITA QUERELA 
 
 289 
 
 AUDITOR 
 
 though it has not been; 1 Rolle, Abr. 306, 
 431, pi. 10 ; 1 Mod. Ill ; either before or aft- 
 er execution has issued ; Lothrop v. Bennet, 
 Kirb. (Conn.) 187. 
 
 It does not lie for matter which might 
 have been, or which may be, taken advan- 
 tage of by a writ of error; Sutton v. Tyrrell, 
 10 Vt. 87; in answer to ;i scire facias of the 
 plaintiff; 1 Salk. 264; nor where there is or 
 has been a remedy by plea or otherwise; T. 
 Raym. 89; Thatcher v. Gammon, 12 Mass, 
 270; Barrett v. Vaughan, <'» Vt. 243; 
 v. U. S., 12 Wall. (I*. S.i 305, 20 L. Ed. 405; 
 nor where there has been nn agreement to 
 accept a smaller sum in paymenl of a larger 
 debt, while any part of the agreement con- 
 tinues executory; Keen v. Vaughan's Ex'x, 
 48 Pa. 477: nor to show that a confessed 
 judgment was to be collateral security only; 
 Emery v. Patton, 9 Phila. (Pa.) 125; nor 
 where a judgment is erroneous in part with- 
 out a tender of the legal part of the judg- 
 ment; Rickard v. Fisk, 66 Vt. 075, 30 Atl. 93; 
 nor against the commonwealth ; Com. v. 
 Berger, 8 Phila. (Pa.) 237. 
 
 In modern practice it is usual to grant the 
 same relief upon motion which might be ob- 
 tained by audita querela; Baker v. Judges, 4 
 Johns. (N. Y.) 191: Witherow v. Keller, 11 
 S. & R. (Pa.) 274; and in some of the states 
 the remedy by motion has entirely supersed- 
 ed the ancient remedy ; Smock v. Dade, 5 
 Rand. (Va.) 639, 16 Am. Dec. 780; Long- 
 worth v. Screven, 2 Hill (S. C.) 298, 27 Am. 
 Dec. 381 ; Marsh v. Haywood, 6 Humphr. 
 (Tenn.) 210; Dunlap v. Clements, 18 Ala. 
 778; Chambers v. Neal, 13 B. Monr. (Ky.) 
 256; while in others audita querela is of 
 frequent use as a remedy recognized by 
 statute; Sawyer v. Cross. 66 Vt. 616, 30 Atl. 
 5; Rickard v. Fisk, 66 Vt. 675. 30 Atl. 93; 
 Stone v. Chamberlain, 7 Gray (Mass.) 206; 
 Foss v. Witham, 9 Allen (Mass.) 572. 
 
 "Audita querela was given quite recently, 
 that is to say in the tenth year of the reign, 
 in Parliament, . . . and it was never 
 given before." Y. B. 18 Edw. Ill, Rolls Se- 
 ries, p. 308. See Jac. L. Diet. ; Fitzh. N. B. 
 102; Register of Writs, vol. 1, pp. 149, 150 
 (for the writ itself). 
 
 AUDITOR. An officer of the government, 
 whose duty it is to examine the accounts of 
 officers who have received and disbursed 
 public moneys by lawful authority. 
 
 "The name auditor seems to have been 
 originally applied to one whose duties were 
 judicial rather than fiscal." Mcllwain, High 
 Court of Pari. 251. 
 
 An officer of the court, assigned to state 
 the items of an account between the parties 
 in a suit where accounts are in question, and 
 exhibit the balance. Whitwell v. Willard, 1 
 Mete. (Mass.) 218. 
 
 They may be appointed by courts either 
 of law or equity. They are appointed at 
 common law in actions of account; Bacon, 
 Bouv.— 19 
 
 Abr. Accompt, F ; and in many of the 
 in other actions, under statute regulations . 
 Pierce v. Thompson, 6 Pick. <M 
 Bartlett v. Trefethen, 14 N. II. 127; C 
 bell v. Crout, 3 R. I. 60. An order of 
 ence is proper where an accounting is i 
 sary and the questions of law involved have 
 been disposed of; Brown v. i , h. »;:; Hun 
 633, 18 X. V. Supp. 551. Where a trial has 
 been commenced before a jury and tl 
 Cendant consents to an accounting and the 
 discharge of the jury, he caunol afterwards 
 to the order of reference because it 
 requires the auditor to pass on disputed 
 questions of law and fact: Carrity v. Ham 
 burger Co. (111.) 28 X. B. 743. 
 
 Appearing before an auditor and examin- 
 ing witnesses without objection constitutes 
 a waiver of the auditor's taking an oath be- 
 fore entering on his duties; Pardrid 
 Ryan. 134 III. 247. 25 X. E. 627; Newcomb v. 
 Wood, 97 U. S. 581, 24 L. Ed. 1086 ; Kelsey 
 v. Darrow, 22 Hun (X. Y.) 125. 
 
 They have authority to hear testimony ; 
 Shearman v. Akins, 4 Pick. (Mass.) 283; 
 Leach v. Shepard, 5 Vt. 363; Townshend v. 
 Duncan, 2 Bland, Ch. (Md.i 1"; Callender 
 v. Colegrove, 17 Conn. 1 ; Paine v. Ins. Co., 
 69 Me. 568; in their discretion ; Smith v. 
 Smith, 27 N. H. 244; in some states, to ex- 
 amine witnesses under oath; Palmer v. Palm- 
 er, 38 N. H. 418; Dorsey v. Hammond, 1 
 Bland, Ch. (Md.) 463; to examine hooks ; 
 Lazarus v. Ins. Co., 19 Pick. (Mass.) 81; 
 Callender v. Colegrove, 17 Conn. 1; and other 
 vouchers of accounts; Barnard v. Stevens, 
 11 Mete. (Mass.) 297. 
 
 The auditor's report must state a special 
 account; Finney's Adm'r v. Harheson, 4 
 Yeates (Pa.) 514; Thomas v. Alsop, 2 Rool 
 (Conn.) 12; Tutton v. Addams, 4." Pa. 67; 
 Hill v. Hogaboom, 13 Vt. 141 ; Bartlett v. 
 Trefethen, 14 N. H. 427: giving items allow- 
 ed and disallowed: Macks v. Brush, 5 Vt. 
 70: Whitehead v. Perie. 15 Tex. 7; but it is 
 sufficient if it refer to the account; Demuud 
 v. Gowen. 5 N. J. L. 6S7 ; but see Ilorrick v. 
 Belknap's Estate, 27 Vt. 673; and are to re- 
 port exceptions to their decision of questions 
 taken before them to the court: Thompson v. 
 Arms, 5 Vt. 546; Orousillat v. McCall, 5 
 Binn. (Pa.) 433; and exceptions must he 
 taken before them; Chappedelaine v. '< 
 enaux, 4 Cra. (U. S.) .°,<ts. 2 L. 101. 829; 
 Thompson v. Arms. 5 Vt. 546; Davis' Heirs 
 v. Foley. Walk. (Miss.) 43; Whitehead v. 
 Perie, 15 Tex. 7: Benoit v. Brill, 24 .Mi 
 Anderson v. Usher, 59 Ga. 567; unless ap- 
 parent on the face of the report: Himely v. 
 Rose, 5 Cra. (U. S.) 313, 3 L. Ed. 111. 
 Mengas' Appeal, 19 Pa. 221. 
 
 In some jurisdictions, the report of audi- 
 tors is final as to facts; Parker v. Avery, 
 Kirb. (Conn.) 353; Wood v. Barney, 2 Yt. 
 369; Davis' Heirs v. Foley. Walk. (Miss.) 
 43; In re Ludlam's Estate. 13 Pa. 188; Brad- 
 ford v. Wright, 5 B. I. 33S; Whitehead v.
 
 AUDITOR 
 
 21)0 
 
 AUDITORS OF THE IMPREST 
 
 Perie, 15 Tex. 7; Closson v. Means, 40 Me. 
 337; unless impeached lor fraud, misconduct, 
 or very evident error ; Appeal of Stehruan, 5 
 Pa. 413; Appeal of Speakman, 71 Pa. 25; 
 Closson v. Means, 40 Me. 337 ; but subject to 
 any examination of the principles of law in 
 which they proceeded; Spencer v. Usher, 2 
 Day (Conn.) 116. In others it is held prima 
 facie correct; Lyman v. Warren, 12 Mass. 
 412; Washington County Mutual Ins. Co. v. 
 Dawes, 6 Gray (Mass.) 37G; Tourne v. 
 Riviere, 1 La. Ann. 3S0; Bartlett v. Tre- 
 fethen, 14 N. H. 427 ; Mathes v. Bennett, 21 
 N. H. 188; and evidence may be introduced 
 to show its incorrectness; Tourne v. Riviere, 
 1 La. Ann. 380; Benoit v. Brill, 24 Miss. 83; 
 see Appeal of Thompson, 103 Pa. 603; Col- 
 grove v. Rockwell, 24 Conn. 584 ; and in oth- 
 ers it is held to be of no effect till sanctioned 
 by the court; Dorsey v. Hammond, 1 Bland, 
 Ch. (Md.) 463; Lee v. Abrams, 12 111. 111. 
 
 When the auditor's report is set aside in 
 whole or in part, it may be referred back; 
 Moore's Ex'r v. Beauchamp, 4 B. Monr. 
 (Ky.) 71; Shearman v. Akins, 4 Pick. 
 (Mass.) 283; Leach v. Shepard, 5 Vt. 363; 
 Mason v. Potter, 26 Vt. 722; Bolware v. Bol- 
 ware, 1 Litt. (Ky.) 124; Lee v. Abrams, 12 
 111. Ill; Hoyt v. French, 24 N. H. 198; Tur- 
 ner v. Haughton, 71 N. C. 370; Mast v. Lock- 
 wood, 59 Wis. 48, 17 N. W. 543; Gardiner 
 v. Schwab, 34 Hun (N. Y.) 5S2; or may be 
 rectified by the court ; Swisher v. Fitch, 1 
 Smedes & M. (Miss.) 543; Dorr v. Ham- 
 mond, 7 Colo. 79, 1 Pac. 693; or accepted if 
 the party in favor of whom the wrong de- 
 cision was made remits the item. 
 
 Where the report is referred back to the 
 auditor, the whole case is reopened, and all 
 parties are bound to take notice; In re 
 Thomas' Estate, 76 Pa. 30 ; see Mason v. Pot- 
 ter, 26 Vt. 722; O'Neill v. Capelle, 62 Mo. 
 202. 
 
 Where two or more are appointed, all 
 must act; Crone v. Daniels, 20 Conn. 331; 
 unless the parties consent that a part act 
 for all; Booth v. Tousey, 1 Tyl. (Vt.) 407. 
 
 An accountant appointed for the purpose 
 of verifying and stating the true financial 
 condition of a corporation, firm or individu- 
 al. Lindley, L. J., in [1895] 2 Ch. 673, defin- 
 ing his duties to be in substance : To ascer- 
 tain and state the true financial condition of 
 the company and his duty is confined to 
 that. He must take reasonable care to as- 
 certain that the books show the company's 
 true financial position. But he does not 
 guarantee that the books do correctly show 
 the true position of the company's affairs; 
 or that his balance sheet is accurate accord- 
 ing to the books. He must use reasonable 
 care and skill, under the circumstances, be- 
 fore he believes that what he certifies is 
 true ; where suspicion is aroused more care 
 is necessary. 
 
 AUDITORS OF THE IMPREST. Officers 
 in the exchequer who formerly had the 
 charge of auditing the great accounts of the 
 
 king's customs, naval and military expenses, 
 etc., but who are now superseded by the 
 commissioners for auditing the public ac- 
 counts. Jacob. 
 
 AUGMENTATION. The increase arising 
 to the crown's revenues from the suppression 
 of monasteries and religious houses and the 
 appropriation of their lands and revenues. 
 
 A court of augmentations erected by Henry 
 VIII., which was invested with the power of 
 determining suits and controversies relating 
 to monasteries and abbey lands. 
 
 The court was dissolved in the reign of Mary, but 
 the office of augmentations remained long after ; 
 Cowell. 
 
 A share of the great tithes temporarily 
 granted to the vicars by the appropriators, 
 and made perpetual by statute 29 Car. II. 
 c. 8. 
 
 The word is used in a similar sense in the Cana- 
 dian law. 
 
 See Couet of Augmentation. 
 
 AULA. This was employed in mediaeval 
 England along with curia, and meant an en- 
 closure or hall; it was used of the meetings 
 of the lord's men held there exactly in the 
 same way that the word court was used. 
 Mcllwain, High Court of Pari. 30. See 
 Couet; Curia; Curia Regis. 
 
 AULA REGIA. (Called frequently Aula 
 Regis). The King's hall or palace. See Curia 
 Regis. 
 
 AULIC COUNCIL. Pertaining to a royal 
 court. In the old German empire, the Aulic 
 Council was the personal council of the 
 emperor, and one of the two supreme courts 
 of the empire which decided without appeal. 
 It was instituted about 1502, and organized 
 under a definite constitution in 1559, modi- 
 fied in 1654. It finally consisted of a presi- 
 dent, a vice-president, and eighteen council- 
 lors, six of whom were Protestants; the 
 unanimous vote of the latter could not be set 
 aside by the others. The Aulic Council ceas- 
 ed to exist on the extinction of the German 
 Empire in 1806. The title is now given to 
 the Council of State of the Emperor of Aus- 
 tria. Cent. Diet. 
 
 AUNCEL WEIGHT. An ancient manner 
 of weighing by means of a beam held in the 
 hand. Termes de la Ley; Cowell. 
 
 AUNT. The sister of one's father or moth- 
 er : she is a relation in the third degree. 
 See 2 Comyn, Dig. 474 ; Dane, Abr. c. 126, a. 
 3, §4. 
 
 AUSTRALIAN BALLOT. See Election. 
 
 AUSTRIA-HUNGARY. An empire in the 
 southern central portion of Europe. 
 
 Since 1867 it has consisted of Austria and Hungary 
 united under one hereditary sovereign, a common 
 army and navy and diplomacy controlled by the 
 Delegations, a body of 120 members, one-half repre- 
 senting the legislature of Austria and one-half that 
 of Hungary, the upper house of each country re- 
 turning 20 and the lower house 40 delegates. Ordi- 
 narily the delegates sit and vote in two chambers, 
 their jurisdiction being limited to foreign affairs, 
 common finances, and war. The legislature of Aus-
 
 AUSTRIA-HUNGARY 
 
 291 
 
 AUTER ACTION PENDANT 
 
 trla consists of the Provincial Diets representing the 
 provinces and the Reichsrath, which consists of an 
 upper house composed of princes of the imperial 
 family, nobles, ecclesiastics, and 120 life members 
 nominated by the Emperor; also a lower house of 
 ■353 members, elected. There Is a ministry of nine 
 members. 
 
 The legislature of Hungary is conjointly In the 
 King and the Diet or Reichstag. This consists of an 
 upper house or house of magnates, including he- 
 reditary peers, ecclesiastics aud fifty life peers ap- 
 pointed by the Crown and other special representa- 
 tives, and the lower house elected by the people to 
 the number of 453. There is a ministry of nine, 
 including a president. The supreme court of Aus- 
 tria sits at Vienna, that of Hungary at Liuda-Pcsth. 
 An administrative court, a high court of justice, 
 and a court of cassation also sit at Vienna. There 
 are courts of second instance in the larger cities 
 and circuit courts at most of the principal towns 
 throughout the Empire. 
 
 AUTER. Another. See Autre. 
 
 AUTER ACTION PENDANT (L. Fr. an- 
 other action pending). A plea that another 
 action is already pending. It may be made 
 either at law or in equity ; Story, Eq. PI. § 
 736. The second suit must be for the same 
 cause; 2 Dick. Gil; Russell v. Alvarez, 5 
 Cal. 4S; Hixon v. Schooley, 26 N. J. L. 461 ; 
 Clark v. Toggle, 18 Ga. G04 ; Ballou v. Bal- 
 lou, 2G Vt. 673; Merritt v. Richey, 100 Ind. 
 416; but a writ of error may abate a suit on 
 the judgment; Jenkins v. Pepoon, 2 Johns. 
 Cas. (N. Y.) 312; and if in equity, for the 
 same purpose; 2 M. & C. Ch. G02 ; see Hart 
 v. Granger, 1 Conn. 154 ; and in the same 
 right ; Story, Eq. PL § 739. The criterion by 
 which to decide whether two suits are for 
 the same cause of action is, whether the evi- 
 dence, properly admissible in the one, will 
 support the other; Steam Packet Co. v. Brad- 
 ley, 5 Cr. C. C. 393, Fed. Cas. No. 13,333. See 
 Watson v. Jones, 13 Wall. (U. S.) 679, 20 L. 
 Ed. G66. 
 
 The suits must be such that the same 
 judgment may be rendered in both ; Buffum 
 v. Tilton, 17 Pick. (Mass.) 510. They must 
 be between the same parties ; Hall v. Hol- 
 combe, 26 Ala. 720; Adams v. Gardiner, 13 
 B. Monr. (Ky.) 197; Langhain v. Thomason, 
 5 Tex. 127; in person or interest; Bennett 
 v. Chase, 21 N. H. 570; Hartz v. Com., 1 
 Grant, Cas. (Pa.) 359; Anderson v. Barry, 2 
 J. J. Marsh. '(Ky.) 2S1. The parties need 
 not be precisely the same; Rowley v. Wil- 
 liams, 5 Wis. 151. 
 
 A suit for labor is not abated by a subse- 
 quent proceeding in rem to enforce a lien ; 
 Delahay v. Clement, 3 Scam. (111.) 201. A 
 suit in trespass is temporarily barred by a 
 previous proceeding in rem to enforce a for- 
 feiture under laws of United States; Gelstou 
 v. Hoyt, 3 Wheat. (U. S.) 314, 4 L. Ed. 381. 
 
 The prior action must have been in a 
 domestic court; 4 Ves. Ch. 357; Bowne v. 
 Joy, 9 Johns. (N. Y.) 221; Lyman v. Brown, 
 2 Curt. C. C. 559, Fed. Cas. No. 8,027; Hatch 
 v. Spofford, 22 Conn. 4S5, 58 Am. Dec. 433; 
 Drake v. Brander, 8 Tex. 351; U. S. v. Cruik- 
 shank, 92 U. S. 548, 23 L. Ed. 588 : Allen v. 
 Watt, 69 111. 655; Yelverton y. Conant, 18 
 
 N. H. 123; see Newell v. Newton, 10 Pick. 
 (Mass.) 470; Smith v. Lathrop, 44 Pa 
 84 Am. Dec. 448 ; Salmon v. Wootton, 9 Dana 
 (Ky.) 422; Chattanooga, R. & C. R. Co. v. 
 Jackson, SO Ga. G7G, 13 S. E. 109 ; but a for- 
 eign attachment against the same si. 
 matter may be shown; Embree v. Han 
 Johns. (N. Y.) 101; see Winthrop v. 
 ton, 8 Mass. 450; Morton v. Webb, 7 Vt. l_'l ; 
 Sargent v. Granite Co., 3 Misc. 325, ~s; X. v. 
 Supp. 886; Harvey v. R. Co., 50 Minn. 405, 
 52 X. W. 905, 17 L. R. A. 84; but it will not 
 avail where there was no appearance in the 
 attachment suit or no personal service on the 
 party attached; Douglass v. Ins. Co., 138 N. 
 Y. 209, 33 N. E. 938, 20 L. R. A. 118, 3-1 Am 
 St. Rep. 448 ; and of the same character ; 
 22 Eng. L. & Eq. G2; Story, Eq. PL 736; 
 thus a suit at law is no bar to one in equity ; 
 Peak v. Bull & Co., 8 B. Monr. (Ky.) 428; 
 Bolton v. Landers, 27 Cal. 104; nor is the 
 pendency of a bill in equity a bar to an ac- 
 tion at law; Mattel v. Conant, 150 Mass. 418, 
 31 X. E. 4S7; Blanchard v. Stone, 16 Vt. 234; 
 unless there be concurrent jurisdiction ; 22 
 Law Rep. 74; but the plaintiff may elect, 
 and equity will enjoin him from proceeding 
 at law if he elect to proceed in equity ; 2 
 Dan. Ch. Pr. § 4 ; Bisp. Eq. § 363; but he 
 will not be required to elect" in such case, un- 
 less the suit at law is for the same cause, 
 and the remedy at law is co-extensive, and 
 equally beneficial with the remedy in equity. 
 A suit in the circuit court having jurisdiction 
 will abate a suit in the state court, if in the 
 same state ; Walsh v. Durkin, 12 Johns. | X. 
 Y.) 99; Smith v. Ins. Co., 22 X. II. 21 ; and 
 so will a suit in a state court abate one in a 
 United States circuit court; Earl v. Ray- 
 mond, 4 McLean, 233, Fed. Cas. No. 4,243; 
 but not unless jurisdiction is shown ; White 
 v. Whitman, 1 Curt. C. C. 494. Fed. Cas. No. 
 17,561 ; Ex parte Balch, 3 McLean, 221, Fed. 
 Cas. No. 790; Wadleigh v. Veazie, 3 Sumn. 
 165, Fed. Cas. No. 17,031; and not unless the 
 suit is pending for the same cause, and be- 
 tween the same parties, in the same Btate 
 in which the circuit court is sitting: Stan- 
 ton v. Embrey, 93 U. S. 548, 23 L. Ed. 983; 
 Brooks v. Mills County, 4 Dill. 521, Fee 
 No. 1,955. 
 
 The pendency of another suit for the same 
 equitable relief, in another court of co-ordi- 
 nate jurisdiction, is a bar to a motion for an 
 injunction; Cleveland, P. & A. R. Co. v. City 
 of Erie, 27 Pa. 3S0 ; and may be pleaded in 
 abatement of an action at law for the same 
 cause; Pittsburg & C. R. Co. v. R. Co., 76 
 Pa. 481. 
 
 In general, the plea must be In abatement; 
 Hartz v. Com., 1 Grant, Cas. (Pa.) 359; Carr 
 v. Casey, 20 111. 637; Rowley v. Williams. 5 
 Wis. 151; Ex parte Balch, 3 McLean. 221, 
 Fed. Cas. No. 790; Danforth v. R. Co., 93 
 Ala. 614, 11 South. 60; Central R. & Bank- 
 ing Co. v. Coleman, 88 Ga. 294, 14 S. E. 382; 
 Mattel v. Conant, 156 Mass. 41S, 31 N. K
 
 AUTER ACTION PENDANT 
 
 292 
 
 AUTER ACTION PENDANT 
 
 48.7 ; Rogers v. Hoskins, 15 Ga. 276 ; but in i 
 a penal action at the suit of a common in- 
 former, the priority of a former suit for the ■ 
 same penalty in the name of a third person 
 may be pleaded in bar, because the party who 
 first sued is entitled to the penalty ; Ander- { 
 son v. Barry, 2 J. J. Marsh. (Ky.) 281. 
 
 It must be pleaded iu abatement of the 
 subsequent action in order of time; Renner 
 v. Marshall, 1 Wheat. (U. S.) 215, 4 L. Ed. ; 
 74; Carr v. Casey, 20 111. GST; Rowley v. 
 Williams, 5 Wis. 151 ; Greenwood v. Rector, ! 
 
 I Hempst. 70S, Fed. Cas. No. 5,792 ; Hailman 
 v. Buekmaster, 3 Gilm. (111.) 498; Buff urn v. i 
 Tilton, 17 Pick. (Mass.) 510 ; Nicholl v. Ma- 
 son, 21 Wend. (N. Y.) 339. 
 
 It must show an action pending or judg- 
 ment obtained at the time of the plea ; Hixon 
 v. Schooley, 26 N. J. L. 461; Hope v. Alley, 
 
 II Tex. 259; but it is sufficient to show it 
 pending when the second suit was commenc- 
 ed; Parker v. Colcord, 2 N. H. 36; Toland 
 v. Tichenor, 3 Rawle (Pa.) 320; the court 
 first acquiring concurrent jurisdiction re- 
 tains it to the exclusion of the other ; Grif- 
 fin v. Birkhead, 84 Va. 612, 5 S. E. 6S5 ; when 
 both suits are commenced at the same time, 
 the pendency of each may be pleaded in 
 abatement of the other, and both be defeat- 
 ed; Davis v. Dunklee, 9 N. H. 545; Beach v. 
 Norton, 8 Conn. 71 ; Harris v. Linnard, 9 N. 
 J. L. 5S; Morton v. Webb, 7 Vt. 124; Mid- 
 dlebrook v. Travis, 68 Hun . 155, 22 N. Y. 
 Supp. 672; and the plaintiff cannot avoid 
 such a plea by discontinuing the first action 
 subsequently to the plea ; 2 Ld. Raym. 1014 ; 
 Com. v. Churchill, 5 Mass. 174; Frogg's 
 Ex'rs v. Long's Adm'r, 3 Dana (Ky.) 157, 28 
 Am. Dec. 69 ; contra, Marston v. Lawrance, 
 1 Johns. Cas. (N. Y.) 397; Ballou v. Ballou, 
 26 Yt. 673 ; Rogers v. Hoskins, 15 Ga. 270 ; 
 Rush v. Frost, 49 la. 183; Findlay v. Keim, 
 62 Pa. 112 ; Warder v. Henry, 117 Mo. 530, 
 23 S. W. 776. And a prior suit discontinued 
 before plea pleaded in the subsequent one 
 will not abate such suit; Adams v. Gardi- 
 ner, 13 B. Monr. (Ky.) 197; Dean v. Massey, 
 7 Ala. 601; Nichols v. Bank, 45 Minn. 102, 
 47 N. W. 462 ; nor will it if a nonsuit is en- 
 tered nunc pro tunc, to make it of a date be- 
 fore the commencement of the second action ; 
 Wilson v. Pearson, 102 N. C. 290, 9 S. E. 707. 
 It may be pleaded in abatement of the ac- 
 tion in the inferior court, and must aver ap- 
 pearance, or at least service of process; 1 
 Yern. 318. Suing out a Writ is said to be 
 sufficient at common law ; Bentley v. Joslin, 
 1 Hempst. 218, Fed. Cas. No. 18,232. See 
 Lis Pendens. 
 
 It must be shown that the court entertain- 
 ing the first suit has jurisdiction; Rood v. 
 Eslava, 17 Ala. 430; White v. Whitman, 1 
 Curt 494, Fed. Cas. No. 17,561. It is a suffi- 
 cient defence that the plaintiff has pleaded the 
 identical claim on which the action was 
 brought as a set-off in a pending suit by the 
 
 defendant; Pennsylvania R. Co. v. Daven- 
 port, 154 Pa. Ill, 25 Atl. 890. 
 
 It must be proved by the defendant by 
 record evidence ; Fowler v. Byrd, Hempst- 
 213, Fed. Cas. No. 4,999 a; Com. v. Church- 
 ill, 5 Mass. 174; Riddle v. Potter, 1 Cra. C. 
 C. 288, Fed. Cas. No. 11,811. It is said that if 
 the first suit be so defective that no recovery 
 can be had, it will not abate the second; 
 Rogers v. Hoskins, 15 Ga. 270; Langham v. 
 Thomason, 5 Tex. 127; Quinebaug Bank v. 
 Tarbox, 20 Conn. 510 ; Downer v. Garland, 
 21 Vt. 362; Cornelius v. Vanirsdallen's 
 Adm'r, 3 Pa. 434. 
 
 A prior indictment pending does not abate 
 a second for the same offence ; Dutton v. 
 State, 5 Ind. 533; Com. v. Drew, 3 Cush. 
 (Mass.) 279; Com. v. Dunham, Thach. Cr. 
 Cas. (Mass.) 513. 
 
 When a defendant is arrested pending a 
 former suit or action in which he was held 
 to bail, he will not, in general, be held to 
 bail if the second suit be for the same cause 
 of action; Clark v. Weldo, 4 Yeates (Pa.) 206; 
 under special circumstances, in the discretion 
 of the court, a second arrest will be allowed ; 
 Peck v. Hozier, 14 Johns. (N. Y.) 347. Pend- 
 ency of one attachment will abate a second 
 in the same county ; James v. Dowell, 7 
 Smedes & M. (Miss.) 333. 
 
 So, generally, Gould, Stephen, and Chitty 
 on Pleading ; Story, Mitford, and Beames on 
 Equity Pleading; Bacon, Abr. Abatement, 
 Bail in Civil Cases. 
 
 AUTER DROIT. In right of another. 
 
 AUTER VIE. See Estate Pub Autee Vie. 
 
 AUTHENTIC ACT. In Civil Law. An act 
 
 which has been executed before a notary or 
 other public officer authorized to execute 
 such functions, or which is testified by a 
 public seal, or has been rendered public by 
 the authority of a competent magistrate, or 
 which is certified as being a copy of a pub- 
 lic register. Nov. 73, c. 2 ; Cod. 752, 6. 4. 21 ; 
 Dig. 22. 4. 
 
 An act which has been executed before a 
 notary public or other officer authorized to 
 execute such functions, in presence of two 
 witnesses, free, male, and aged at least four- 
 teen years ; or of three witnesses, if the par- 
 ty be blind. La. Civ. Code, art. 2231. If 
 the party does not know how to sign, the 
 notary must cause him to affix his mark to 
 the instrument. La. Civ. Code, art. 2231. 
 The authentic act is full proof of the agree- 
 ment contained in it, against the contracting 
 parties and their heirs or assigns, unless it 
 be declared and proved to be a forgery, id. 
 art. 2233. See Merlin, RCpert. _^T 
 
 AUTHENTICATION. A proper or legal 
 attestation. 
 
 Acts done with a view of causing an in- 
 strument to be known and identified. 
 
 Under the constitution of the U. S., con- 
 gress has power to provide a method of au-
 
 AUTHENTICATION 
 
 293 
 
 AU'U 
 
 thenticating copies of the records of a statu 
 with a view to their production as evidence 
 In other states. See Fobeign Judgment; 
 Full Faith and Credit; Records. 
 
 AUTHENTIC S. A collection of the Novels 
 of Justinian, made by an unknown person. 
 
 They are entire, and are distinguished by their 
 name from the epitome made by Julian. See 1 
 Mackcldey, Civ. Law § 72. 
 
 A collection of extracts made from the 
 Novels by a lawyer named Irnier, and which 
 he inserted in the code at the places to which 
 they refer. These extracts have the reputa- 
 tion of not being correct. Merlin, 22 
 Authcntiquc. 
 
 AUTHOR (Lat. auctor, from augere, to in- 
 crease, to produce). 
 
 One who produces, by his own intellectual 
 labor applied to the materials of his compo- 
 sition, an arrangement or compilation new 
 in Itself. At will v. Ferrett, 2 Blatchf. 39, 
 Fed. Cas. No. G40. 
 
 When a person has conceived the design of 
 a work, and has employed others to execute 
 it, the creation of the work may be so far 
 due to his mind as to make him the author ; 
 7 C. B. N. S. 26S; but he is not an author 
 who merely suggests the subject, and has no 
 share in the design or execution of the work; 
 17 C. B. 432; Drone, Copyright 236. Toe 
 reporter of a speech verbatim is the author 
 of the report ; [1900] A. C. 539. The adopter 
 of a foreign drama, who introduces into his 
 version material alterations, is an author of 
 a dramatic piece; 74 C. T. 77; within the 
 Fine Arts Copyright Act, the operator who 
 takes (or superintends the taking of) the 
 negative is the author of a photograph and 
 not the actual proprietor of the business; 
 52 L. J. Q. B. 750. 
 
 See Copyright. 
 
 AUTHORITIES. Enactments and opin- 
 ions relied upon as establishing or declaring 
 the rule of law which is to be applied in any 
 case. 
 
 The opinion of a court, or of counsel, or of a text- 
 writer upon any question, Is usually fortified by a 
 citation of authorities. In respect to their general 
 relative weight, authorities are entitled to prece- 
 dence In the order In which they are here treated. 
 
 The authority of the constitution and of 
 the statutes and municipal ordinances are 
 paramount ; and if there is any conflict 
 among these, the constitution controls, and 
 courts declare a statute or ordinance which 
 conflicts with the former to be so far forth 
 of no authority. See Constitutional Law. 
 
 The decisions of courts of justice upon 
 similar cases are the authorities to which 
 most frequent resort is to be had ; and al- 
 though in theory these are subordinate to 
 the first class, in practice they do continual- 
 ly explain, enlarge, or limit the provisions of 
 enactments, and thus in effect largely modi- 
 fy them. The word authorities is frequently 
 used in a restricted sense to designate cita- 
 tions of this class. See 23 A. & E. Encyc of 
 
 [ Law 19; Chamberlain, 
 Precedents. 
 
 As to American decisions as authorit 
 English courts, see P i > rs. 
 
 The opinions of legal writers. Of the 
 number of treatises and comm itarl 
 we have, comparatively few b 
 authorities. A very large number are in 
 reality but little more than if the 
 
 adjudged cases arranged in 
 and find their chief utility as manui 
 reference. Hence it has been remarked that 
 when we find an opinion in a text-writer up 
 on any particular point, we must consider it 
 not merely as the opinion of the author, but 
 as the supposed result of the authorities to 
 which he refers; and if on examination of 
 those authorities they are found not to es- 
 tablish it, his opinion is disregarded; :; B. 
 ,V P. 301. Where, however, the writer de- 
 clares his own opinion as founded apon prin 
 ciple, the learning and ability of the writer. 
 together with the extent to which the rea- 
 sons he assigns commend themselves to the 
 reader, determine the weight of his opinion. 
 A distinction has been made between writers 
 who have and who have not held judicial 
 i ; Ram, Judgments 93. But this, 
 though it may be borne in mind in estimat- 
 ing the learning and ability of an author, is 
 not a just test of bis authority. See 3 
 64, 241. Early text-books have a footl 
 their own and are considered authorities. 
 Pollock, First Book 236. "In England and 
 America, not only is there no line between 
 the careers of judges and . but 
 
 there is no line between the judges and ad- 
 vocates and the jurists. I 
 portion of those text-writers who could be 
 properly cited as authority have either filled 
 high judicial positions, or have been actively 
 engaged in some branch of practice. Omit- 
 ting the names of living writers, we have, 
 in England, Bracton, Littleton, Coke, Hale. 
 Doderidge, Gilbert, Foster, Blackstone, 
 Fearne, Hargrave, Butler, Preston. Wigram, 
 Abbott, Sugden, Stephen, Byles, Williams, 
 Blackburn. Benjamin ; and in the United 
 States, Kent, Story, Redfield, Washburn. 
 Rawle [Covenants for Title]." Gray 
 
 (Nature and Sources of Law 255). F 
 Crown Law (17C2 1 is said to be the latest 
 book to which authority in the exact 
 • •an be ascribed. Pollock. First Bo 
 Jurispr. - b">. Five books are said t<^ stand 
 out pre-eminently in the history o\' English 
 law — Glanvil, P.raeton. Littleton, Cok< 
 Blackstone. 2 Holdsw. Hist. E. L. 
 
 "It is to my mind much to be regretted, 
 and it Is a regret which I believe every judge 
 on the bench shares, that text 
 more and more quoted In court — I mean, of 
 course, text-books by living authors — and 
 some judges have gone so far as to say that 
 they shall not be quoted." Kekewich, J., in 
 [1887] I- R. 37 0. D. 54. 
 
 In complicated questions of real estate law,
 
 AUTHORITIES 
 
 294 
 
 AUTHORITY 
 
 in the absence of cases, weight is given to 
 text-books of recognized authority; IS C. B. 
 N. S. 90, 107 (Erie, C. J.); and to the settled 
 practice of conveyancers; 2 Brod. & Bing. 
 473, GOO, per Eldon, L. C, in the House of 
 Ixjrds; Turn. & R. 81, S7, when the same 
 judge puts his decision on that ground, say- 
 ing, that "after the abuse which I have 
 heard at the bar of the House of Lords and 
 elsewhere upon that subject, I am not sorry 
 to have this opportunity of stating my opin- 
 ion that great weight should be given to that 
 practice." The practice of conveyancers was 
 considered by Jessel, M. C, worthy of con- 
 sideration though not decisive; 16 Ch. D. 
 211, 223. 
 
 As to the value and effect of the opinions 
 of the Attorney-Generals of the United 
 .States, see In re District Attorney of Unit- 
 ed States, 2 Cadwalader's Cases 138, Fed. 
 Cas. No. 3,924, 7 Am. L. Reg. (N. S.) 801, per 
 Cadwalader, J. Uevens, Atty.-Gen., in 1G 
 Op. 522, referred to this opinion as being that 
 of a subordinate judge, and therefore less 
 weighty than those of the Attorney-Generals. 
 See Executive Poweb. 
 
 The opinions of writers on moral science, 
 and the codes and laws of ancient and for- 
 eign nations, are resorted to in the absence 
 of more immediate authority, by way of as- 
 certaining those principles which have com- 
 mended themselves to legislators and phil- 
 osophers in all ages. See Code. Lord Coke's 
 saying that common opinion is good author- 
 ity in law, Co. Litt. 186 a, is not understood 
 as referring to a mere speculative opinion in 
 the community as to what the law upon a 
 particular subject is; but to an opinion 
 which has been frequently acted upon, and 
 for a great length of time, by those whose 
 duty it is to administer the law, and upon 
 which course of action important individual 
 rights have been acquired or depend; Bank 
 of Utica v. Mersereau, 3 Barb. Ch. (N. Y.) 
 528, 577, 49 Am. Dec. 189. 
 
 As to the mode of citing authorities, see 
 Citation of Authorities. 
 
 See Judge-Made Law; Law. 
 
 AUTHORITY. The lawful delegation of 
 power by one person to another. 
 
 Authority coupled with an interest is an 
 authority given to an agent for a valuable 
 consideration, or which forms part of a se- 
 curity. 
 
 Express authority is that given explicitly, 
 either in writing or verbally. 
 
 General authority is that which authorizes 
 the agent to do everything connected with 
 a particular business. Story, Ag. § 17. 
 
 It empowers him to bind his principal by all 
 acts within the scope of his employment; and it 
 cannot be limited by any private direction not 
 known to the party dealing with him. Paley, Ag. 
 199. 
 
 Limited authority is that where the agent 
 is bound by precise instructions. 
 
 Special authority is that which is confined 
 
 to an individual transaction. Story, Ag. § 
 19 ; 15 East 400, 40S ; Andrews v. Kneeland, 
 6 Cow. (N. Y.) 354. 
 
 Such an authority does not bind the employer, 
 unless it is strictly pursued; for it is the business 
 of the party dealing with the agent to examine his 
 authority ; and therefore, if there be any qualifica- 
 tion or express restriction annexed to it, it must be 
 observed; otherwise, the principal Is discharged; 
 Paley, Ag. 202. 
 
 Naked authority is that where the prin- 
 cipal delegates the power to the agent wholly 
 for the benefit of the former. 
 
 A naked authority may be revoked ; an authority 
 coupled with an interest is irrevocable. 
 
 Unlimited authority is that where the 
 agent is left to pursue his own discretion. 
 See Principal and Agent. 
 
 AUTOCRACY. A government where the 
 power of the monarch is unlimited by law. 
 
 AUTOMATIC COUPLER. See Safety Ap- 
 pliance Act. 
 
 AUTOMOBILES. A vehicle for the car- 
 riage of passengers or freight, propelled by 
 its own motor. It has been held to be a car- 
 riage, not a machine ; Baker v. Fall River, 
 187 Mass. 53, 72 N. E. 336 ; but by the same 
 court in a later case if was held that a stat- 
 ute enacted more than one hundred years 
 ago providing that cities or towns should pay 
 for the repairs of highways so as to make 
 them reasonably safe for travellers with car- 
 riages could not be construed reasonably to 
 include a heavy modern automobile; Doherty 
 v. Inhabitants of Ager, 197 Mass. 241, 83 N. 
 E. 677, 14 L. R. A. (N. S.) 816, 125 Am. St 
 Rep. 355. 
 
 The legislature may, under the police pow- 
 er, regulate the driving of automobiles and 
 motor cycles and provide for a registration 
 fee, which is a license fee, not a tax ; Com. 
 v. Boyd, 1S8 Mass. 79, 74 N. E. 255, 108 Am. 
 St. Rep. 464; see Com. v. Densmore, 29 Pa. 
 Co. Ct R. 217. A city may, under a charter 
 conferring the power to regulate the use of 
 its highways, enact an ordinance requiring 
 the registering and numbering of automo- 
 biles or other motor vehicles and exacting a 
 fee from the owner to pay for the license tag 
 to be furnished by the city; People v. 
 Schneider, 139 Mich. 673, 103 N. W. 172, 69 
 L. R. A. 345, 5 Ann. Cas. 790. It may regu- 
 late the speed of automobiles and require the 
 use of reasonable safety appliances; City of 
 Chicago v. Banker, 112 111. App. 94. It may 
 prescribe different rates of speed in different 
 parts of the city, according to the width of 
 the streets, their use, and the density of pop- 
 ulation ; Chittenden v. Columbus, 26 Ohio C. 
 C. 531. An ordinance limiting speed within 
 certain limits is not invalid because another 
 ordinance permits street cars to run at a 
 greater rate of speed; id. A provision in 
 the charter of a city which empowered it to 
 regulate the use of the streets and the speed 
 of vehicles, and to license and regulate cer- 
 tain occupations, was held not to confer power
 
 AUTOMOBILES 
 
 295 
 
 AUTOMOBILES 
 
 to enact an ordinance requiring one who uses 
 an automobile for his private business and 
 pleasure only to submit to an examination 
 and to be licensed; City of Chicago v. Bank- 
 er, 112 111. App. 94 ;. the ordinance was fur- 
 ther held to impose a burden upon one class 
 of citizens not imposed upon others. 
 
 There may be a recovery for common law 
 negligence in operating an automobile, al- 
 though the use of such vehicles has become a 
 matter of statutory regulation; Christy v. 
 Elliott, 21G 111. 31, 74 X. 03. L085, 1 L. R. A. 
 (N. S.) 215, 108 Am. St. Rep. 19G, 3 Ann. Cas. 
 487. The law does not denounce motor car- 
 riages as such on the public ways. So long 
 as they are constructed and propelled in a 
 manner consistent with the proper use of the 
 highways and are calculated to subserve the 
 public as a beneficial means of transporta- 
 tion, with reasonable safety to travellers by 
 ordinary modes, they have an equal right 
 with other vehicles in common use to occupy 
 the streets and roads; Gregory v. Slaughter, 
 124 Ky. 345, 99 S. W. 247, 8 L, R. A. (X. S.) 
 1228, 124 Am. St. Rep. 402; Indiana Springs 
 Co. v. Brown, 105 Ind. 465, 74 X. E. 015, 1 
 L. R. A. (N. S.) 238, Ann. Cas. 050. There 
 is nothing dangerous in their use when care- 
 fully managed. Their guidance, speed and 
 noise are all subject to quick and easy regu- 
 lation, and under the control of a competent 
 and considerate manager it is as harmless' on 
 the road as other vehicles in common use ; 
 Mclntyre v. Orner, 1GG Ind. 57, 70 N. E. 750, 
 4 L. R. A. (N. S.) 1130, 117 Am. St. Rep. 359, 
 8 Ann. Cas. 1087. It is the manner of driving 
 the vehicle, and that alone, which threatens 
 the safety of the public. The ability to stop 
 quickly, its quick response to guidance, its 
 uncontrolled sphere of action, would seem to 
 make the automobile one of the least danger- 
 ous of conveyances ; Yale L. J. Dec. 1905. 
 Because they are likely to frighten horses is 
 no reason for prohibiting their use. In all 
 human activities the law keeps up with im- 
 provement and progress brought about by 
 discovery and invention; and in respect to 
 highways, if the introduction of a new con- 
 trivance for transportation purposes, con- 
 ducted with due care, is met with inconven- 
 ience and even accidental injury to those 
 using ordinary modes, there can be no recov- 
 ery, provided the contrivance is compatible 
 with the general use and safety of the road. 
 It is improper to say that the driver of a 
 horse has rights in the road superior to the 
 driver of the automobile ; Hannigan v. 
 Wright, 5 Pennewill (Del.) 537, 03 Atl. 234; 
 Wright v. Crane, 142 Mich. 508, 106 N. W. 
 71; and each is equally restricted in the ex- 
 ercise of his rights by the corresponding 
 rights of the other; Macomber v. Nichols, 34 
 Mich. 212, 22 Am. Rep. 522; Holland v. 
 Bartch, 120 Ind. 4G, 22 N. E. S3, 1G Am. St 
 Rep. 307. Each is required to use ordinary 
 care, in order to avoid receiving injury as 
 well as inflicting injury upon the other, and 
 
 in this the degree of care required Is I 
 estimated by the exigencies of the particular 
 situation. 
 
 Xo operator of an automobile Is exempt 
 from liability for a collision in a public 
 by merely showing that at the time of the 
 accident he did not run at a rate of 
 ceedlng the limit allowed by the law. He \s 
 bound to anticipate that he may meet per- 
 sons at any point in a public street; B l 
 v. Transp. Co., 100 App. Div. 493, :»i X. Y. 
 Supp. 798; and he must keep a propel 
 out for them; McFern v. Gardner, 121 Mo. 
 App. 1, 97 S. W. 972; and keep his machine 
 under such control as will enable him to 
 avoid a collision with another person also 
 using care and caution; Gregory v. Slaugh- 
 ter, 321 Ky. 345, 99 S. W. U17. 8 L. B. A. (N. 
 S.) 1228, 124 Am. St. Rep. 402; if nee. 
 he must run slowly, ami even stop; Thies v. 
 Thomas, 77 N. Y. Supp. 27G. Xo blowing of 
 a horn or whistle, nor the ringing of a bell 
 or gong, without an attempt to lessen the 
 speed, is suflicient, if the circumstances de- 
 mand that the speed should be lessened, or 
 the machine be stopped, and such a course is 
 practicable. The true test is that he should 
 use all the care which a careful driver would 
 have exercised under the same circum- 
 stances; Thies v. Thomas, 77 N. Y. Supp. 
 276. He has been held to the same degree of 
 care as a motorman of an electric ear; Mc- 
 Fern v. Gardner, 121 Mo. App. 1, !>7 S. W. 
 972. A pedestrian crossing a street is not 
 bound to "stop, look and listen" for auto- 
 mobiles; Baker v. Close, L'<>4 X. Y. :•_'. 97 X. 
 E. 501. 38 L. R. A. (X. S.) 4S7. That a stat- 
 ute limiting speed on the highways applies 
 only to horseless vehicles does not render it 
 void as an unjust discrimination ; Christy 
 v. Elliott, 210 HI. 31, 74 X. E. 1035, 1 L, R. 
 A. (X. S.) 215, 108 Am. St. Rep. 190, 3 Ann. 
 Cas. 487. 
 
 The U. S. R. S. prohibiting passenger 
 steamers from carrying as freight certain ar- 
 ticles, including petroleum products or other 
 like explosive fluids, except under certain 
 conditions, were amended by the act of Feb. 
 21, 1901, which provides that "nothing in the 
 foregoing or following sections of tin 
 shall prohibit the transportation by 
 vessels of gasolene or any of the prodr. 
 petroleum when carried by motor vehicles 
 (commonly known as automobiles) using the 
 same as a source of motive power: provided 
 however that all fire, if any, in such vehicles 
 or automobiles be extinguished before enter- 
 ing the said vessel, and the same be not re- 
 lighted until after said vehicle shall have left 
 the same." Under this act it was held that 
 gasolene contained in the tank of an auto- 
 mobile being transported on a steam 
 was iarried as freight within the meaning of 
 the statute, that an automobile in which the 
 motive power was generated by passing an 
 electric spark through a compressed mixture 
 of gasolene and air in the cylinder, causing
 
 AUTOMOBILES 
 
 296 
 
 AUTREFOIS ACQUIT 
 
 intermittent explosions, carried a fire while 
 the vehicle was under motion from its own 
 motive power; and that the carrying by a 
 steam ferryboat of such a vehicle, which was 
 run in and off the boat by its own power. 
 was a violation of the statute; The Texas, 
 134 Fed. 909. In 1903. Congress amended the 
 existing law by enacting that "nothing in the 
 foregoing or following sections of this act 
 shall prohibit the transportation by steam 
 vessels of gasolene or any of the products of 
 petroleum when carried by motor vehicles 
 (commonly known as automobiles) using the 
 same as a source of motive power : provided 
 however, that all fire, if any, in such vehicles 
 or automobiles be extinguished immediately 
 after entering said vessels and the same be 
 not relighted until immediately before said 
 vehicle shall leave the vessel; provided fur- 
 ther, that any owner, master, agent or other 
 person having charge of passenger steam 
 vessels shall have the right to refuse to 
 transport automobile vehicles, the tanks of 
 which contain gasolene, naptha or other dan- 
 gerous burning fluids"; 33 Stat. L. 720. 
 
 An absent owner of an automobile is not 
 liable for the negligence of the chauffeur 
 committed at a time when he was not en- 
 gaged in the owner's business; Clark v. 
 Buckmobile Co., 107 App. Div. 120, 9-1 N. Y. 
 Supp. 771 ; Reynolds v. Buck, 127 la. 601, 103 
 N. W. 94G; even though, as in the latter 
 case, the automobile was decorated for the 
 purpose of advertising the owner's business. 
 A statute providing that one operating a 
 motor vehicle who has caused an accident to 
 his knowledge and leaves the place without 
 stopping or leaving his name is guilty of a 
 felony, was held to be a simple police regu- 
 lation. The driver who discloses his identity 
 is not furnishing evidence of guilt, but 
 rather of innocence; Ex parte Kneedler, 243 
 Mo. 632, 147 S. W. 9S3, 40 L. R. A. (N. S.) 
 622, Ann. Cas. 1913C, 923. 
 See Huddy, Automobiles. 
 AUTONOMY (Greek, avrovo/nia) . The state 
 of independence. 
 
 The autonomos was he who lived according to his 
 own Maws,— who was free. The term was chiefly 
 used of communities or states, and meant those 
 which were independent of others. It was intro- 
 duced into the English language by the divines of 
 the seventeenth century, when it and its translation 
 —self-government — were chiefly used in a theologi- 
 cal sense. Gradually its translation received a 
 political meaning, in which it is now employed al- 
 most exclusively. Of late the word autonomy has 
 been revived in diplomatic language in Europe, 
 meaning independence, the negation of a state of 
 political influence from without or foreign powers. 
 See Lieber, Civ. Lib. 
 
 AUTOPSY. See Dead Body. 
 
 AUTRE VIE (Fr.). The life of another. 
 See Estate pur Autre Vie. 
 
 AUTREFOIS ACQUIT (Fr. formerly ac- 
 quitted). A plea made by a defendant in- 
 dicted for a crime or misdemeanor, that he 
 has formerly been tried and acquitted of the 
 same offence. 
 
 The constitution of the United States, 
 Amend, art. 5, provides that no person shall 
 be subject for the same offence to be put 
 twice in jeopardy of life or limb. This is 
 simply a re-enactment of the common-law. 
 The same provision is to be found in the con- 
 stitution of almost all if not of every state, 
 and if not in the constitution the same prin- 
 ciples are probably declared by legislative 
 act; so that they must be regarded as funda- 
 mental doctrines in every state; 2 Kent 12. 
 See U. S. v. Perez, 9 Wheat. (U. S.) 579, 6 
 L. Ed. 165; U. S. v. Gibert, 2 Sumn. 19, Fed. 
 Cas. No. 15,204; Com. v. Bowden, 9 Mass. 
 494; People v. Goodwin, IS Johns. (N. Y.) 
 187,' 9 Am. Dec. 203 ; State v. Hall, 9 N. J. 
 L. 256. See, however, Com. v.- Cook, 6 S. & 
 R. (Pa.) 577, 9 Am. Dec. 465; State v. Gar- 
 rigues, 2 N. C. 241; Whart. Crim. PL § 490. 
 This plea is founded upon the maxim, nemo 
 debet Us vexari pro eadem causa; Broom, 
 Leg. Max. 265. 
 
 The court, however, must have been com- 
 petent, having jurisdiction and the proceed- 
 ings regular; McNeil v. State, 29 Tex. App. 
 48, 14 S. W. 393; Blyew v. Com., 91 Ky. 200, 
 15 S. W. 356 ; but see Powell v. State, 89 Ala. 
 172, 8 South. 109. 
 
 To be a bar, the acquittal must have been 
 after a trial; Marston v. Jenness, 11 N. H. 
 156; State v. Odell, 4 Blackf. (Ind.) 156; 
 State v. Tindal, 5 Harr. (Del.) 4S8; Hassell 
 v. Nutt, 14 Tex. 260; and by verdict of a 
 jury on a valid indictment; 4 Bla. Com. 335 ; 
 People v. Barrett, 1 Johns. (N. Y.) 66; 
 Heikes v. Com., 26 Pa. 513; State v. Wilson, 
 39 Mo. App. 187. In Pennsylvania and some 
 other states, the discharge of a jury, even 
 in a capital case, before verdict, except in 
 case of absolute necessity, will support the 
 plea; Com. v. Clue, 3 Rawle (Pa.) 498; State 
 v. McGimsey, 80 N. C. 377, 30 Am. Rep. 90; 
 but the prisoner's consent to the discharge of 
 a previous jury is a sufficient answer ; Peif- 
 fer v. Com., 15 Pa. 468, 53 Am. Dec. 605. In 
 the United States courts and in some states, 
 the separation of the jury when it takes 
 place in the exercise of a sound discretion 
 is no bar to a second trial; Whart. Cr. PL 
 § 499; Clark, Cr. Law 373; Simmons v. U. 
 S., 142 U. S. 148, 12 Sup. Ct. 171, 35 L. Ed. 
 968 ; as where the jury is discharged because 
 of the sickness of a juror; People v. Ross, 
 85 Cal. 383, 24 Pac. 7S9 ; State v. Hazledahl, 
 2 N. D. 521, 52 N. W. 315, 16 L. R. A. 150; 
 see Stocks v. State, 91 Ga. 831, 18 S. E. 847; 
 or because they failed to agree; Logan v. 
 U. S., 144 U. S. 263, 12 Sup. Ct. 617, 36 
 L. Ed. 429 ; State v. Whitson, 111 N. C. 695, 
 16 S. E. 332. 
 
 There must be an acquittal of the offence 
 charged in law and in fact; Com. v. Myers, 
 1 Va. Cas. 188; Wortham v. Com., 5 Rand. 
 (Va.) 669; Com. v. Goddard, 13 Mass. 457; 
 McCreary v. Com., 29 Pa. 323; People v. 
 March, 6 Cal. 543; Winn v. State, 82 Wis. 
 571, 52 N. W. 775; the plea will be bad if
 
 AUTREFOIS ACQUIT 
 
 297 
 
 AUTREFOIS ACQUIT 
 
 the offences charged in the two indictments 
 be perfectly distinct in point of law, however 
 clearly they may be connected in fact ; Bur- 
 ton v. U. S., 202 U. S. 345, 2G Sup. Ct. OSS, 
 50 L. Ed. 1057, Ann. Cas. 302, citing Com. 
 v. Roby, 12 Tick. (Mass.) 502; but an ac- 
 quittal is conclusive; Slaughter v. State, 
 Humphr. (Tenn.) 410; Com. v. Cuminings, 3 
 Cush. (Mass.) 212, 50 Am. Dec. 732; State v. 
 Brown, 1G Conn. 54; State v. Jones, 7 Ga. 
 422; State v. Johnson, 8 Blackf. (Ind.) 533; 
 State v. Wright, 3 Brev. (S. C.) 421; State v. 
 Spear, G Mo. 044 ; Dillard's Adm'r v. Moore, 
 7 Ark. 169; State v. De Hart, 7 N. J. L. 172; 
 State v. Anderson, 3 Smedes & M. (Miss.) 
 751 : State v. Burris, 3 Tex. 118 ; Lawyer v. 
 Smith, 1 Denio (N. Y.) 207. If a nolle prose- 
 qui is entered without the prisoner's consent 
 after issue is joined and the jury sworn, it 
 is a bar to a subsequent indictment for the 
 same offence; Franklin v. State, 85 Ga. 570, 
 11 S. E. 87G ; but the jeopardy does not begin 
 until the jury is sworn, prior to that a nol. 
 pros, may be entered without prejudice; 
 State v. Paterno, 43 L. Ann. 514, 9 South. 
 442 ; a nol. pros, of two of three indictments 
 is no bar to a prosecution under the third ; 
 O'Brien v. State, 91 Ala. 25, 8 South. 5G0. In 
 Missouri the conviction of murder in the sec- 
 ond degree, under an indictment for murder 
 in the first degree, constitutes no bar to trial 
 and conviction for murder in the first degree, 
 upon a new trial, when the first verdict has 
 been set aside; State v. Anderson, 89 Mo. 
 312, 1 S. W. 135. 
 
 Proceedings by state tribunals are no bar 
 to court-martial instituted by the military 
 authorities of the United States; 3 Opin. 
 Atty.-Genl. 750; Stiener's Case, 6 id. 413; 
 but a judgment of conviction by a military 
 court, established by law in an insurgent 
 state, is a bar to a subsequent prosecution by 
 a state court for the same offence ; Coleman 
 v. Tennessee, 97 U. S. 509, 24 L. Ed. HIS. 
 See Courts-Martial. 
 
 The plea must set out the former record, 
 and show the identity of the offence and of 
 the person by proper averments; Hawk. PI. 
 Cr. b. 2, c. 30 ; Atkins v. State, 1G Ark. 508 ; 
 "Wilson v. State, 24 Conu. 57. 
 
 The true test of whether a plea of autre- 
 fois acquit or autrefois convict is a sufficient 
 bar in any particular case is whether the 
 evidence necessary to support the second in- 
 dictment would have been sufficient to pro- 
 cure a legal conviction upon the first; 1 
 Bish. Cr. L. 1012; 3 B. & C. 502; Com. v. 
 Roby, 12 Pick. (Mass.) 504; State v. Wil- 
 liams, 45 La. Ann. 936, 12 South. 932. Thus, 
 if a prisoner indicted for burglariously 
 breaking and entering a house and stealing 
 therein certain goods of A is acquitted, he 
 cannot plead this acquittal in bar of a sub- 
 sequent indictment for burglariously break- 
 ing and entering the same house and steal- 
 ing other goods of B ; 2 Leach 718, 719; 
 
 Alexander v. State, 21 Tex. App. 400, 
 W. 139, 57 Am. Rep. G17. 
 
 The plea of autrefois u<:<i>iit Involves 
 tions of mixed law and fact, and is pn 
 referred to the jury when nut demurrable 
 on its face; Stale v. Williams, 45 La. Ann. 
 93G, 12 South. 932. 
 
 The plea in the celebrated case of I; 
 v. Bird, 5 Cox Cr. Cas. 12, Tempi. & M 
 2 Den. Cr. Cas. 224, is of peculiar value as a 
 precedent. 
 
 See Jeopardy. 
 
 AUTREFOIS ATTAINT (Fr. formerly at- 
 tainted). A plea that the defendant has 
 been attainted for one felony, and cannot, 
 therefore, be criminally prosecuted for an- 
 other; 4 Bla. Com. 336; 12 Mod. 109; EL & 
 R. 268. This is not a good plea in bar in 
 the United States, nor in England in mod- 
 ern law; 1 Bish. Cr. L. § 692; Singleton v. 
 State, 71 Miss. 782, 16 South. 295, 42 An.. 
 St. Rep. 488; Gaines v. State I s. \v. 
 
 623; contra. Ex parte Myers, 44 Mo. 27'.': 
 State v. Jolly, 96 Mo. 435, 9 S. W. S97. See 
 State v. McCarty, 1 Bay (S. C.) 334. 
 
 AUTREFOIS CONVICT (Fr. formerly con- 
 victed). A plea made by a defendant in- 
 dicted for a crime or misdemeanor, that he 
 has formerly been tried and convicted of the 
 same. 
 
 This plea is substantially the same in form 
 as the plea of autrefois acquit, and is 
 grounded on the same principle, viz. : that 
 no man's life or liberty shall be twice put 
 in jeopardy for the same offence; Whart 
 Cr. PI. § 435; 1 Bish. Cr. Law § 651 : state 
 v. Cooper. 13 N. J. L. 301, 25 Am. Dec. 490; 
 U. S. v. Keen, 1 McLean 42'.). Fed. Cas. No. 
 15,510; State v. Nelson, 7 Ala. 610; State v. 
 Chaffin, 2 Swan (Tenn.) 493; State v. Par- 
 ish, 43 Wis. 395. 
 
 A plea of autrefois convict, which shows 
 that the judgment on the former indictment 
 has been reversed for error in the judgment, 
 is not a good bar to another indictment for 
 the same offence; Cooley's Const. Lim. 320; 
 Territory v. Dorman, 1 Ariz. 56, 25 Pac. 516; 
 People v. Schmidt, 04 Cal. 260, 30 Pac. 814; 
 State v. Rhodes, 112 X. C. 857, IT s. E. 164; 
 otherwise, if the reversal were not for in- 
 sufficiency in the indictment nor for error 
 at the trial, but for matter subsequent, and 
 dehors both the conviction and the judg- 
 ment ; Hartung v. People, 26 X. Y. 167. A 
 prior conviction before a justice of the peace, 
 and a performance of the sentence, consti- 
 tute a bar to an indictment for the same of- 
 fence, although the complaint on which the 
 justice proceeded was so defective that his 
 judgment might have been reversed for er- 
 ror; Com. v. Loud, 3 Mete. (Mass.) 328, 37 
 Am. Dec. 139. Where a person has been con- 
 victed for failing to support his wife and be- 
 ing disorderly, it is no bar to a second pros- 
 ecution on a similar charge, where at the
 
 AUTREFOIS CONVICT 
 
 298 
 
 AVER 
 
 time of the second offence he was not in 
 prison on account of his first sentence ; Peo- 
 ple v. Hodgson, 126 N. Y. 647, 27 N. E. 378. 
 Where one has been convicted of an assault 
 but discharged without sentence on giving 
 security for good behavior, he cannot after- 
 wards be convicted on an indictment for the 
 same assault; 24 Q. B. Div. 423. See Autre- 
 fois Acquit. 
 
 A U X I L I U M (Lat.) . An aid ; services paid 
 by the tenant to his lord. Auxilium ad filv- 
 um militem faciendum, vel ad filiam mari- 
 tandam. (An aid for making the lord's son 
 a knight, or for marrying his daughter.) 
 Fitzh. Nat. Brev. 62. 
 
 AUXILIUM CURI/E. An order of the 
 court summoning one party, at the suit and 
 request of another, to appear and warrant 
 something. Kenn. Par. Ant. 477. 
 
 AUXILIUM REGIS. A subsidy paid to 
 the king. Spelman. 
 
 AUXILIUM VICE COMITI. An ancient 
 duty paid to sheriffs. Cowell. 
 
 AVAILABLE. Capable of being used; 
 valid or advantageous. 
 
 Available means. That numerous class of 
 securities which are known in the mercan- 
 tile world as representatives of value easily 
 converted into money, but not money. Brig- 
 ham v. Tillinghast, 13 N. Y. 218. 
 
 AVAILS. Profits or proceeds, as the 
 avails of a sale at auction. Webst. Diet. 
 
 With reference to wills it applies to the 
 proceeds of an estate after the debts have 
 been paid; McNaughton v. McNaughton, 34 
 N. Y. 201 ; Allen v. De Witt, 3 id. 276. 
 
 AVAL. In Canadian Law. A contract of 
 suretyship or guarantee on a promissory 
 note. 1 Low. C. 221 ; 9 id. 360. 
 
 In French Law. The guaranty of a bill of 
 exchange; so called because usually placed 
 at the foot or bottom (aval) of the bill. Sto. 
 Bills §§ 394, 454. See 11 Harv. L. Rev. 55; 
 Indorsement. 
 
 AVAR I A, AVARIE. Average; the loss 
 and damage suffered in the course of a navi- 
 gation. Pothier, Marit. Louage 105. 
 
 AVENAGE. A certain quantity of oats 
 paid by a tenant to his landlord as a rent 
 or in lieu of other duties. Jacob, L. Diet 
 
 AVENTURE. A mischance causing the 
 death of a man, as by drowning, or being 
 killed suddenly without felony. Co. Litt. 
 391; Whishaw. 
 
 AVER. To assert. See Averment. 
 
 To make or prove true ; to verify. 
 
 The defendant will offer to aver. Cowell ; 
 Co. Litt. 362 b. 
 
 Cattle of any kind. Cowell, Averia; Kel- 
 ham. 
 
 Aver et tenir. To have and to hold. 
 
 Aver corn. A rent reserved to religious houses, 
 to be paid in corn. Corn drawn by the tenant's 
 cattle. CowelL 
 
 Aver -land.. Land ploughed by the tenant for the 
 proper use of the lord of the soil. Blount. 
 
 Aver-penny. Money paid to the king's averages 
 to be free therefrom. Termes de la Ley. 
 
 Aver-silver. A rent formerly so called. Cowell. 
 
 AVERA. A day's work of a ploughman, 
 formerly valued at eight pence. Jacob, L. 
 Diet. 
 
 AVERAGE. In insurance law this is gen- 
 eral, particular, or petty. 
 
 General Average (also called gross) con- 
 sists of expense purposely incurred, sacrifice 
 made, or damage sustained, for the common 
 safety of the vessel, freight and cargo, or 
 two of them, at risk, and is to be contributed 
 for by the several interests in the propor- 
 tion of their respective values exposed to the 
 common danger, and ultimately surviving, 
 including the amount of expense, sacrifice, or 
 damage so incurred in the contributory val- 
 ue; 2 Phill. Ins. § 1269; and see Code de 
 Com. tit. xi. ; Aluzet, Trait, des Av. cxx. ; 
 Sturgess v. Cary, 2 Curt. C. C. 59, Fed. Cas. 
 No. 13,572; Greely v. Ins. Co., 9 Cush. 
 (.Mass.) 415; McLoon's Adm'r v. Cummings, 
 73 Pa. 98; Star of Hope v. Annan, 9 Wall. 
 (U. S.) 203, 19 L. Ed. 638; Bailey, Gen. Av.; 
 2 Pars. Mar. Law, ch. xi. ; Stevens, Av. ; 
 Benecke, Av. ; Pothier, Av. ; Lex Rhodia, Dig. 
 14. 2. 1. 
 
 General average is a comparatively mod- 
 ern expression. The early writers expressed 
 the same idea by the words "averidge," or 
 "contribution," which with them were syn- 
 onymous terms ; 21 L. Quart. Rev. 155. In 
 the common memorandum which was added 
 to marine policies about 1749, the words, 
 general and average, occur for the first time; 
 id.; Loundes, Mar. Ins. 206 (2d ed. 1885). 
 By this time the word average had acquired 
 the dual meaning still attaching to it: a 
 particular, partial loss, and a contribution 
 to the general loss ; it was necessary to in- 
 sert the words "unless general" in order to 
 prevent the operation of the exception being 
 extended to losses of the latter class. Lord 
 Mansfield held that the word "unless" meant 
 the same as "except" ; 3 Burr. 1550. Lord 
 Esher, M. R., said the true construction of 
 the words "free from average unless gener- 
 al" was free from partial loss unless it be a 
 general average loss; 22 Q. B. D. 580. The 
 result of these decisions is that, while the 
 assurer is to be excused from paying a loss 
 of the nature of particular average, his 
 pre-existing obligation to contribute to gen- 
 eral average, though acknowledged, is left 
 untouched ; 21 L. Q. R. 155. 
 
 General average is recoverable for loss by 
 jettison ; 19 C. B. N. S. 563 ; for ship's stores 
 used to fire the donkey-engine which worked 
 the pumps; 7 L. R. Ex. 39; 2 Q. B. D. 91, 
 295 ; and for damage to a cargo caused by 
 pouring on water to extinguish a fire; 8 Q. 
 B. D. 653 ; The Roanoke, 46 Fed. 297 ; id., 53 
 Fed. 270 ; id., 59 Fed. 161, 8 C. C. A. 67. 
 Prior to the Harter Act, a common carrier
 
 AVERAGE 
 
 299 
 
 AVERAGE 
 
 by sea could not, by any agreement in the bill 
 of lading, exempt himself from responding to 
 the owner of cargo for damages arising from 
 the negligence of the master or crew of the 
 vessel ; Liverpool & Great Western Steam 
 Co. v. Ins. Co., 120 U. S. 397, 9 Sup. Ct 4G9, 
 32 L. Ed. 788; New York C. R. Co. v. Lock- 
 wood, 17 Wall. (U. S.) 357, 21 L. Ed. G27. 
 That act absolved the shipowner from re- 
 sponsibility for the negligence of the master 
 and crew under certain circumstances. By 
 its first and second sections shipowners are 
 prohibited from Inserting in (heir bills of 
 lading agreements limiting their liability in 
 certain respects. It was held under this 
 act that if a vessel, seaworthy at the begin- 
 ning of the voyage, is afterwards stranded 
 by the negligence of her master, the ship- 
 owner, who has exercised due diligence to 
 make his vessel seaworthy, properly manned, 
 equipped and supplied, under its provisions 
 has no right to general average contribution 
 for sacrifices made and suffered by him sub- 
 sequent to the stranding, in successful ef- 
 forts to save vessel, freight, and cargo ; The 
 Irrawaddy, 171 U. S. 187, 18 Sup. Ct 831, 
 43 L. Ed. 130. This case was distinguished 
 in a later case where it was held that a gen- 
 eral average agreement inserted in bills of 
 lading providing that if the owner of a ship 
 shall have exercised due diligence to make 
 the ship in all respects seaworthy and prop- 
 erly manned, equipped and supplied, the car- 
 go shall contribute in general average with 
 the shipowner even if the loss resulted from 
 negligence in the management of the ship, 
 is valid under the Harter Act, and entitles 
 the shipowner to collect a general average 
 contribution from the cargo owners in re- 
 spect to sacrifices made and extraordinary 
 expenses incurred by him for the common 
 benefit and safety of ship, cargo, and freight 
 subsequent to a negligent stranding ; The 
 Jason, 225 XL S. 32, 32 Sup. Ct 560, 56 L. 
 Ed. 969. That in view of the provisions of 
 section 3 of the act and of the general aver- 
 age clause the cargo owners have a right to 
 contribution from the shipowner for sacri- 
 fices made subsequent to negligent stranding 
 in order to save the joint interests from com- 
 mon peril is held ; The Roanoke, 46 Fed. 297 ; 
 id., 59 Fed. 161 ; The Rapid Transit, 52 Fed. 
 320 ; The Santa Ana, 154 Fed. S00, 84 C. C. 
 A. 312. There is a similar statute in Eng- 
 land ; 45 L. J. Q. B. 646; 8 Q. B. D. 653; 
 [1908] 1 K. B. 51, affirmed [1908] App. Cas. 
 431. 
 
 Where a vessel was chartered to proceed 
 to a foreign port and there take on a cargo, 
 freight to be paid on the completion of the 
 voyage home, and on the voyage out in bal- 
 last the vessel was grounded and a general 
 average sacrifice made, it was held that, 
 upon the subsequent completion of the voy- 
 age and the payment of the freight, such 
 freight was liable to contribute to the gen- 
 eral average sacrifice; [1901] 2 K. B. 861; 
 \ 
 
 and see 1 M. & S. 318; The Mary, 1 Sprague 
 17, Fed. Cas. No. 9,188; 15 Harv. L. Rev. 488. 
 
 If the peril is caused by ;i concea I 
 in the shipment equally unknown to the 
 per and shipowner, the shipper is entitled 
 to the benefit of contribution; The Wm. J. 
 Quillan, 180 Fed. 681, 103 O. C. A. 617. 
 
 The law of the destination, whore ship 
 and cargo separate, determines the right of 
 general average; Monsen v. Amsinck, 166 
 Fed. 817. 
 
 Insurance is not a part of the owner's in- 
 terest in a ship, and in case of general aver- 
 age, for the purpose of increasing the fund 
 to be distributed, the insurance received by 
 him should not be added to the value of 
 \vhat was saved; The Rapid Transit, 52 Fed. 
 320; The City of Norwich, 118 U. B. 468, 6 
 Sup. Ct. 1150, 30 L. Ed. 134; The Scotland, 
 118 U. S. 507, 6 Sup. Ct. 1174, 30 L. Ed. 15a 
 
 Average particular (also called partial 
 loss) is a loss on the ship, cargo, or freight, 
 to be borne by the owner of the subject on 
 which it happens, and is so called in distinc- 
 tion from general average; and, if not total, 
 it is also called a partial loss; 2 Phill. Ins. 
 c. xvi. ; Stevens, pt. 1, c. 2; Arnould, Mar. 
 Ins. 953; Code de Com. 1. 2, t 11, a. 403; 
 Pothier, Ass. 115; Benecke & S. Av., Phill. 
 ed. 341. 
 
 It is insured against in marine policies in 
 the usual forms on ship, cargo, or freight, 
 when the action of peril is extraordinary, 
 and the damage is not mere wear or tear; 
 and, on the ship, covers loss by sails split or 
 blown away, masts sprung, cables parted, 
 spars carried away, planks started, change 
 of shape by strain, loss of boat, breaking of 
 sheathing or upper works or timbers, dam- 
 age by lightning or fire, by collision or 
 stranding, or in defence against pirates or 
 enemies, or by hostile or piratical plunder: 
 2 Phill. Ins. c. xvi.; Orrok v. Ins. Co., 21 
 Pick. (Mass.) 456, 32 Am. Dec. 271; Sewall 
 v. Ins. Co., 11 Pick. (Mass.) 90; 7 C. & P. 
 597; 3 id. 323; Sage v. Ins. Co., 1 Conn. 239; 
 Waller v. Ins. Co., 9 Mart. O. S. (La.) 276; 
 Fisk v. Ins. Co., 18 La. 77; Perry v. Ins. Co.. 
 5 Ohio 306; Webb v. Ins. Co., 6 Ohio 456; 
 Hallet v. Jenks, 3 Cra. (U. S.) 218, 2 i 
 414; Byrnes v. Ins. Co., 1 Cow. (N. Y.) 265; 
 Depau v. Ins. Co., 5 Cow. (N. Y.) 63, 15 Am. 
 Dec. 431; Dunham v. Ins. Co., 11 Johns. (N. 
 Y.) 315, 6 Am. Dec. 374. 
 
 Particular average on freight may be by 
 loss of the ship, or the cargo, so that full 
 freight cannot be earned; but not if the 
 goods, though damaged, could have been car- 
 ried on to the port of destination; Coolidge 
 v. Ins. Co., 15 Mass. 341 ; McGau v. Ins. Co., 
 23 Pick. (Mass.) 405; Bork v. Norton. 2 Mc- 
 Lean, 423, Fed. (as. No. 1,659; Jordan v. 
 Ins. Co., 1 Sto. 342, Fed. Cas. No. 7,524; 
 Charleston Ins. & Trust Co. v. Corner, 2 
 Gill (Md.) 410; Saltus v. Ins. Co., 12 
 Johns. (N. Y.) 107, 7 Am. Dec. 290. 
 
 Particular average on goods is usually ad-
 
 AVERAGE 
 
 300 
 
 AVERMENT 
 
 justed at the port of delivery on the basis 
 of the value at which they are insured, viz. : 
 the value at the place of shipment, unless it 
 is otherwise stipulated in the policy ; 2 Burr. 
 L167; 2 East 58; 12 id. 639; 3 B. & P. 308; 
 Rankin v. Ins. Co., 1 Hall (N. Y.) GS2; New- 
 lin v. Ins. Co., 20 Pa. 312; 30 E. L. & Eq. 
 198; 3 Taunt. 162. See Salvage; Loss. 
 
 A particular average on profits is, by the 
 English custom, adjusted upon the basis of 
 the profits which would have been realized 
 at the port of destination. In the United 
 States the adjustment is usually at the same 
 rate as on the goods the profits on which are 
 the subject of the insurance; 2 Pars. Ins. 
 399; Fosdick v. Ins. Co., 3 Day (Conn.) 108; 
 Alsop v. Ins. Co., 1 Sumn. 451, Fed. Cas. No. 
 2G2; Evans v. Ins. Co., 6 R. I. 47. 
 
 Petty Average consists of small charges 
 which were formerly assessed upon the car- 
 go, viz. ; pilotage, towage, light-money, bea- 
 conage, anchor-age, bridge-toll, quarantine, 
 pier-money. Le Guidon, c. 5, a. 13 ; Weyt, de 
 A. 3, 4; Weskett, art Petty Av.; 2 Phill. 
 Ins. § 12G9, n. 1; 2 Arnould, Mar. Ins. 927. 
 
 The doctrine of general average which has 
 obtained in maritime insurance is not appli- 
 cable to fire insurance; May, Ins. § 421 a. 
 
 AVERIA (Lat.). Cattle; working cattle. 
 
 ria carucce (draft-cattle) are exempt 
 
 from distress; 3 Bla. Com. 9; 4 Term 566. 
 
 AVERIIS CAPT1S IN WITHERNAM. A 
 writ which lies in favor of a man whose cat- 
 tle have been unlawfully taken by another, 
 and driven out of the country where they 
 were taken, so that they cannot be replevied. 
 
 It issues against the wrong-doer to take 
 his cattle for the plaintiff's use. Reg. Brev. 
 82. 
 
 AVERIUM (Lat). Goods; property. A 
 beast of burden. Spelman, Gloss. 
 
 AVERMENT. A positive statement of 
 facts, as opposed to an argumentative or in- 
 ferential one. Bacon, Abr. Pleas, B. 
 
 Averments were formerly said to be general and 
 particular ; but only particular averments are 
 found in modern pleading. 1 Chit. PL 277. 
 
 Particular averments are the assertions of 
 particular facts. 
 
 There must be an averment of every substantive 
 material fact on which the party relies, so that it 
 may be replied to by the opposite party. 
 
 Negative averments are those in which a 
 negative is used. 
 
 Generally, under the rules of pleading, the party 
 asserting the affirmative must prove it ; but an 
 averment of illegitimacy, 2 Selwyn, Nisi P. 709, or 
 criminal neglect of duty, must be proven; U. S. 
 v. Hay ward, 2 Gall. 498, Fed. Cas. No. 15,336; Hart- 
 well v. Root, 19 Johns. (N. Y.) 345, 10 Am. Dec. 
 232; Com. v. Stow, 1 Mass. 54; 10 East 211; 3 
 Campb. 10 ; 3 B. & P. 302 ; 1 Greenl. Ev. § 80. 
 
 Immaterial and impertinent averments 
 (which are synonymous, 5 D. & R. 209) are 
 those which need not be made, and, if made, 
 need not be proved. The allegation of de- 
 ceit in the seller of goods in an action on the 
 
 warranty is such an averment; 2 East 446; 
 Panton v. Holland, 17 Johns. (N. Y.) 92, 8 
 Am. Dec. 369. 
 
 Unnecessary averments are statements of 
 matters which need not be alleged, but which, 
 if alleged, must be proved. Carth. 200. 
 
 General averments are almost always of 
 the same form. The most common form of 
 making particular averments is in express 
 and direct words, for example: And the par- 
 ty avers, or in fact saith, or although, or be- 
 cause, or with this that, or being, etc. But 
 they need not be in these words ; for any 
 words which necessarily imply the matter 
 intended to be averred are sufficient 
 
 AVERRARE. To carry goods in a wagon 
 or upon loaded horses; a duty required of 
 some customary tenants. Jacob L. Diet. 
 
 AVERSIO (Lat.). An averting; a turning 
 away. A sale in gross or in bulk. 
 
 Letting a house altogether, instead of in 
 chambers. 4 Kent 517. 
 
 Aversio periculi. A turning away of peril. 
 Used of a contract of insurance. 3 Kent 263. 
 
 A VET. In Scotch Law. To abet or assist 
 Tomlin, Diet 
 
 AVIATICUS (Lat). In Civil Law. A 
 
 grandson. 
 
 AVIATION. The air space above the high 
 seas and unoccupied territory is admittedly 
 free to all nations and persons. It is with 
 the air space above territorial lands and wa- 
 ters that conflicting views of the rights of 
 nations are concerned. According to Hazel- 
 tine (Law of the Air), there are the freedom- 
 of-the-air theories, which comprise abso- 
 lute and partial freedom either by lateral 
 zone divisions or limited exercise of rights; 
 and the sovereign ty-of-the-air theories which 
 may also be classified into absolute sovereign- 
 ty and limited sovereignty groups. The zone 
 and limited sovereignty theories are usually 
 based on analogy to the three mile limit of 
 sovereignty over the high seas. This analogy 
 is obviously unsound both on account of the 
 unsafe condition of states if alien and hostile 
 air-craft were permitted to sail over them 
 above a prescribed height, and the difficulty 
 of calculating the exact or even approximate 
 height of air-craft. The absolute sovereignty 
 theory is probably better justified on reason 
 and practicality. Rights of aliens to unhin- 
 dered passage and rules for alighting could 
 be settled by international agreement. See, 4 
 Am. J. Int. L. 95; 45 L. J. 402; 126 L. T. 
 168. It is said to be clear that the territo- 
 rial jurisdiction of a state must extend to 
 the atmosphere above its soil if the state is 
 to be able to protect itself from airships 
 which would otherwise have it in their power 
 to violate the laws of the state, or to inflict 
 injury upon the citizens of the state in case 
 of accident to the airship. On the other 
 hand, it is reasonable that a state should 
 allow the innocent passage of foreign air-
 
 AVIATION 
 
 301 
 
 AVIATION 
 
 ships through its territorial atmosphere, sub- 
 ject to the domestic regulations imposed up- 
 on the aerial traffic of its own citizens. In 
 this respect the territorial atmosphere of a 
 state may be considered as governed by the 
 same rules as the territorial waters of the 
 state. Hershey 282. 
 
 With regard to the rights of a landowner 
 in the air space above his land, there are al- 
 so divergent views of absolute and limited 
 rights. The Roman Law regarded t± 
 as res publico, free to all persons. The 
 French Code, on the other hand, defines land 
 as including everything above and below the 
 surface. The German Imperial (.'ode adopts 
 this same theory but limits the landowner's 
 right to exclude persons from using the air 
 space, to his actual interest in such exclu- 
 sion. The Swiss Code is similar. 
 
 At common law the old maxim of cufus est 
 solum, ejus est usque ad caelum has led to 
 much confusion. In its origin it had refer- 
 ence to the right of the owner to have the 
 air space above his land remain in its natural 
 state and to have excluded therefrom any- 
 thing which would detract from his enjoy- 
 ment of the land. 4 Am. J. Int. L. 9."i ; 71 
 Cent. L. J. 1 ; 4G Can. L. J. 4S0. The flying 
 of fowls, the passage of smoke and of wire- 
 less messages over another's land have never 
 suggested such a conflict with the maxim as 
 would amount to a trespass. Even naviga- 
 tion by balloons and aeroplanes for a cen- 
 tury or more has been tacitly permitted. See 
 4 Camp. 219; 3 Bengal L. R. 43. But such 
 passage in every instance must not by its 
 frequency amount to a nuisance. The degree 
 of peril and inconvenience to the landowner 
 defines his legal rights ; 14 Law Notes 69 ; 
 10 Case and Comment 21G. 
 
 Under the commerce clause in the United 
 States constitution it would seem that Con- 
 gress has power to regulate aerial naviga- 
 tion; in the absence of such regulation, the 
 individual states may legislate for their own 
 exclusive territorial air space. 
 
 As to the liability of aviators for accidents 
 it has been held that they are liable for all 
 damage both direct and consequential; Guille 
 v. Swan, 19 Johns. (N. Y.) 3S1, 10 Am. Dec. 
 234; Conney v. Ass'n, 70 N. II. 60, 79 Atl. 
 517. This result is based on the view that 
 all aerovehicles are dangerous devices and as 
 such are operated at the aviator's peril. It 
 is conceivable however that as aerial science 
 develops, so that the present dangers and 
 uncertainties are obviated, the stricter rule 
 of liability will give way to one holding the 
 aviator liable only for negligence. It has 
 been urged that the more liberal rule would 
 aid materially in the development of aerial 
 science. 
 
 The intentional or negligent dropping and 
 throwing articles overboard, which fall on 
 private property and cause damage, is gen- 
 erally subjected to heavy liability. There is 
 
 no inherent right to alight on private prop- 
 erty without the consent of the owner, though 
 an exception might possibly be allowed where 
 an act of God or inevitable accident is the 
 cause. 
 
 Every aeronaut shall be responsible for 
 all damages suffered in this state by ai 
 son from injuries caused by any 
 an airship directed by such aeronaut; and 
 if he be the agent or emi 
 making such a voyage, his principal or em- 
 ployer shall be liable for sucb damage. Conn. 
 Public Acts of 1911, p. 135L 
 
 A Massachusetts act of May 7, 1913. 
 lates the use of air-craft; makes proi 
 for the license of aviators after examination 
 and registration; prescribes rules of the air 
 for meeting and overtaking corresponding 
 with the marine practice. Air machines are 
 forbidden to fly over municipalities, < 
 at prescribed altitudes, or to fly over crowds 
 of people. Aviators are held liable for inju- 
 ries resulting from flying unless they can 
 demonstrate that they had taken every rea- 
 sonable precaution to prevent injury, 
 ping missies without special permission is 
 forbidden, and also landing on public prop- 
 erty without permission. 
 
 See generally Lycklama, Air Sovereignty: 
 Ilazeltine, Law of the Air; Davids, Law of 
 Motor Vehicles, chap. 19. 
 
 The "Sovereignty of the Air" is treated by 
 Blewett Lee, in Report of Tennessee Bar 
 Ass'n (1913). He cites: Weill, The Air- 
 Ship in Local Law, etc. (Zurich, 
 Revue Juridicque Interuat. de la Loco: 
 Aerienne, Vol. II.; Catellani, II Diritto 
 Aereo; Proceedings in Inter-Nat Fair Asso- 
 ciation (1912, Paris Conference). 
 
 AV0CAT. In French Law. A barrister or 
 advocate. 
 
 AVOIDANCE. A making void, useless, or 
 empty. 
 
 In Ecclesiastical Law. It exists when a 
 benefice becomes vacant for want of an in- 
 cumbent. 
 
 In Pleading. Repelling or excluding: the 
 conclusions or implications arising from the 
 admission of the truth of the allegations of 
 the opposite party. See Confession and 
 Avoidance. 
 
 AVOIRDUPOIS (Fr.). The name of a sys- 
 tem of weight. 
 
 This kind of weight is so named In distinction 
 from the Troy weight. One pound avoirdupois con- 
 tains seven thousand grains Troy; that is, fourteen 
 ounces, eleven pennyweights, and sixteen grains 
 Troy; a pound avoirdupois contains sixteen ounces; 
 and an ounce sixteen drachms. Thirty-two cubic 
 feet of pure spring-water, at the temperature of 
 fifty-six degrees of Fahrenheit's thermometer, make 
 a ton of two thousand pounds avoirdupois, or two 
 thousand two hundred and forty pounds net weight. 
 Dane, Abr. c. 211, art. 12, § 6. The avoirdupois 
 ounce is less than the Troy ounce in the proportion 
 of 72 to 79 ; though the pound is greater. Encyc. 
 Amer. Avoirdupois. For the derivation of this 
 phrase, see Barrington, Stat. 206. See the Report 
 of Secretary of State of the United States to the
 
 AVOIRDUPOIS 
 
 302 
 
 AVOWTERER 
 
 Senate, February 22, 1S21, pp. 44, 72, 76, 79, 81, 87, for 
 a learned exposition of the whole subject. See 
 Weight. 
 
 AVOUCHER. See Voucher. 
 
 AV0UE\ In French and Canadian Law. A 
 solicitor or attorney. 
 
 AVOW. To acknowledge the commission 
 of an act and claim that it was done with 
 right. 3 Bla. Com. 150. 
 
 To make an avowry. For example, when 
 replevin is brought for a thing distrained, 
 and the party taking claims that he had a 
 right to make the distress, he is said to avow. 
 See Fleta, 1. 1, c. 4; Cunningham, Diet; 
 Avowry; Justification. 
 
 AVOWANT. One who makes an avowry. 
 
 AVOWEE. An advocate of a church bene- 
 fice. 
 
 AVOWRY. The answer of defendant in an 
 action of replevin brought to recover prop- 
 erty taken in distress, in which he acknowl- 
 edges the taking, and, setting forth the cause 
 thereof, claims a right in himself or his 
 wife to do so. Lawes, PI. 35. 
 
 A justification is made where the defendant shows 
 that the plaintiff had no property by showing either 
 that it was the defendant's or some third person's, 
 or where he shows that he took it by a right which 
 was sufficient at the time of taking though not sub- 
 sisting at the time of answer. The avowry admits 
 the property to have been the plaintiff's, and shows 
 a right which had then accrued, and still subsists, 
 to make such caption. See 2 W. Jones 25. 
 
 An avowry is sometimes said to be in the 
 nature of an action or of a declaration, so 
 that privity of estate is necessary ; Co. Litt. 
 320 a; Blaine's Lessee v. Chambers, 1 S. & 
 R. (Pa.) 170. There is no general issue upon 
 an avowry ; and it cannot be traversed cumu- 
 latively ; Hamilton v. Elliott, 5 S. & R. (Pa.) 
 377. Alienation cannot be replied to it with- 
 out notice ; for the tenure is deemed to ex- 
 ist for the purposes of an avowry till notice 
 be given of the alienation; Hamm. Part. 131. 
 
 The object of an avowry is to secure the 
 return of the property, that it may remain as 
 a pledge ; see 2 W. Jones 25 ; and to this 
 extent it makes the defendant a plaintiff. It 
 may be made for rents, services, tolls ; State 
 v. Patrick, 14 N. C. 478; for cattle taken, 
 damage feasant, and for heriots, and for such 
 rights wherever they exist. See Gilbert, 
 Distr. 176 et seq.; 1 Chit. PI. 436; Comyns, 
 Dig. Pleader, 3 K. 
 
 AVOWTERER. In English Law. An adul- 
 terer with whom a married woman continues 
 in adultery. Termes de la Ley. 
 
 AVOWTRY. In English Law. The crime 
 of adultery. 
 
 AVULSION. The removal of a consider- 
 able quantity of soil from the land of one 
 man and its deposit upon or annexation to 
 the land of another, suddenly and by the 
 perceptible action of water. 2 Washb. R. P. 
 452. 
 
 In such case the property belongs to the 
 first owner; Bract. 221; Hargr. Tract, de 
 J we Mar.; Schultes, Aq. Rights 115; Bou- 
 vier v. Stricklett, 40 Neb. 792, 59 N. W. 550. 
 Avulsion by the Missouri river, the middle 
 of whose channel forms the boundary line 
 between the states of Missouri and Nebraska, 
 works no change in such boundary, but leaves 
 it in the centre line of the old channel ; Mis- 
 souri v. Nebraska, 196 U. S. 23, 25 Sup. Ct. 
 155, 49 L. Ed. 372; Nebraska v. Iowa, 143 
 U. S. 361, 12 Sup. Ct. 396, 36 L, Ed. 186. 
 
 See Accretion; Alluvion; Riparian Pro- 
 prietors; Reliction. 
 
 AVUNCULUS. In Civil Law. A mother's 
 brother. 2 Bla. Com. 230. 
 
 AWARD. The decision of arbitrators or 
 referees of a case submitted for arbitration 
 under agreement of the parties or rule of 
 court. See Arbitration and Award. 
 
 AWAY-GOING CROP. A crop sown be- 
 fore the expiration of a tenancy, which can- 
 not ripen until after its expiration, to which, 
 however, the tenant is entitled. Broom, 
 Max. 306. See Emblements. 
 
 AWN-HINDE. 
 
 HlNDE. 
 
 See Third-Niqht-Awn- 
 
 AYANT CAUSE. This term, which is used 
 in Louisiana, signifies one to whom a right 
 has been assigned, either by will, gift, sale, 
 exchange, or the like ; an assignee. An 
 ayant cause differs from an heir who ac- 
 quires the right by inheritance. 8 Toullier, 
 n. 245. 
 
 AYUNTAMIENT0. In Spanish Law. A 
 congress of persons; the municipal council 
 of a city or town. 1 White, Rec. 416; 12 
 Pet. (U. S.) 442, notes.
 
 303 
 
 BACK- WATER 
 
 B 
 
 B. The second letter of the alphabet. 
 It is used to denote the second page of a 
 folio, and also as an abbreviation. See A. 
 
 BABY ACT. A term of reproach originally 
 applied to the disability of infancy when 
 pleaded by an adult in bar of recovery upon 
 a contract made while he was under age, 
 but extends to any plea of the statute of 
 limitations. Anderson's Diet. L. 
 
 BACHELERIA. The commonalty as dis- 
 tinguished from the baronage. Cunningham, 
 L. Diet. 
 
 BACHELOR. In modern use, one who has 
 taken the first degree (baccalaureate) in the 
 liberal arts and sciences, or in law, medicine, 
 or divinity, in a college or university. 
 
 A man who has never been married. 
 
 An inferior kind of knight. 
 
 BACK-BOND. A bond of indemnification 
 given to a surety. 
 
 In Scotch Law. A declaration of trust; a 
 defeasance ; a bond given by one who is ap- 
 parently absolute owner, so as to reduce his 
 right to that of a trustee or holder of a 
 bond and disposition in security. Paterson, 
 Comp. 
 
 BACK CARRY. In forest law, the crime 
 of having, on the back, game unlawfully 
 killed. 
 
 BACK-WATER. That water in a stream 
 which, in consequence of some obstruction 
 below, is detained or checked in its course, or 
 re-flows. 
 
 The term is usually employed to designate 
 the water which is turned back, by a dam 
 erected in the stream below, upon the wheel 
 of a mill above, so as to retard its revolu- 
 tion. 
 
 Every riparian proprietor is entitled to 
 the benefit of the water in its natural state. 
 Another such proprietor has no right to alter 
 the level of the water, either where it enters 
 or where it leaves his property. If he claims 
 either to throw the water back above, or to 
 diminish the quantity which is to descend 
 below, he must, in order to maintain his 
 claim, either prove an actual grant or license 
 from the proprietors affected by his opera- 
 tions, or an uninterrupted enjoyment for 
 twenty years. If he cannot maintain his 
 claim in either of these ways, he is liable 
 for damages in favor of the injured party, 
 or to an injunction to restrain his unlawful 
 use of the water; 1 B. & Ad. 258, 874; 9 
 Coke 59 ; Brown v. Mfg. Co., 5 Gray (Mass.) 
 4G0; Mertz v. Dorney, 25 Pa. 519; Butz v. 
 Ihrie, 1 Rawle (Ta.) 21S ; Sherwood v. Burr, 
 4 Day (Conn.) 244, 4 Am. Dec. 211 ; Noyes v. 
 Stillman, 24 Conn. 15; Gardner v. New- 
 burgh, 2 Johns. Ch. (N. Y.) 162, 7 Am. Dec. 
 
 526; Watson v. Bartlett, G2 N. H. 447; 
 v. Ward, 2 Gilm. (111.) 285; Bowman v. City 
 of New Orleans, 27 La. Ann. 501; McDonald 
 v. Bacon, 3 Scam. (111.) 432 ; Johns v. 
 ens, 3 Vt. 30S ; Tyler v. Wilkinson, 4 Mas. 
 400, Fed. Cas. No. 14,312; Lincoln v. < "im«l- 
 bourne, 56 Me. 197; De Vaughn v. Minor. 77 
 Ga. 809, 1 S. E. 433. But he must sbow some 
 actual, appreciable damage; Garrett v. Me 
 Kie, 1 Rich. (S. C.) 444, 44 Am. Dec. 
 Chalk v. McAlily, 11 Rich. (S. C.) 1.",::; con- 
 tra, Hendrick v. Cook, 4 Ga. 241; Graver v. 
 Sholl, 42 Pa. 67. 
 
 A riparian owner who obstructs a stream, 
 impeding the usual flow of water or that 
 caused by ordinary freshets and causing land 
 to be overflowed, becomes liable ; Bierer v. 
 Hurst, 155 Pa. 523, 26 Atl. 742. Where a 
 railroad company maintains a dam which 
 causes water to overflow adjacent land, it 
 is liable, although the dam was originally 
 constructed by the county under authority of 
 the legislature; Payne v. R. Co., 112 Mo. G. 
 20 S. W. 322, 17 L. R. A. 628. At common 
 law a railroad company must construct and 
 maintain its road across a watercourse so as 
 not to injure adjacent lands ; Ohio & M. Ry. 
 Co. v. Thillman, 43 111. App. 78; Fick v. R. 
 Co., 157 Pa. 622, 27 Atl. 783. 
 
 An action to recover damages for flowing 
 land is local, and must, therefore, be brought 
 in the county where the land lies ; Worster 
 v. Winnipiseogee Lake Co., 25 N. H. 525 ; 
 Watts' Adm'rs v. Kinney, 23 Wend. (N. Y.) 
 4S4 ; 2 East 497. 
 
 In Massachusetts and other states, acts 
 have been passed giving to the owners of 
 mills the right to flow the adjoining lands, if 
 necessary to the working of their mills, sub- 
 ject only to such damages as shall be ascer- 
 tained by the particular process prescribed, 
 which process is substituted for all other ju- 
 dicial remedies; Leland v. Woodbury, 4 
 Cush. (Mass.) 245; Nutting v. Page, 4 Gray 
 i.Mass.) 5S1; Waddy v. Johnson, 27 N. C. 
 333; Knox v. Chaloner, 42 Me. 150; Pratt v. 
 Brown, 3 Wis. 60:'. ; Anderson v. R. Co., S6 
 Ky. 44, 5 S. W. 49, 9 Am. St. Rep. 263. These 
 statutes, however, confer no authority to 
 How back upon existing mills; Baird v. 
 Wells, 22 Pick. (Mass.) 312. See Damages; 
 Inunoation; Watercourse. 
 
 BACKADATI0N. A consideration given to 
 keep back the delivery of stock when the 
 price is lower for time than for ready money. 
 Whart. Diet. ; Lewis, Stocks. Sometimes 
 called Baclncardation. 
 
 BACKBERENDE (Sax.). Bearing upon 
 the 1 ack or about the person. 
 
 Applied to a thief taken with the stolen property 
 in his immediate possession, Bracton, 1. 3, tr. 2, c. 
 32. Used with handhabend, having In the hand.
 
 BACKING 
 
 304 
 
 BADGE OF FRAUD 
 
 BACKING. Indorsement Indorsement by 
 a magistrate. 
 
 Backing a warrant becomes necessary when It is 
 desired to serve it in a county other than that in 
 which it was first issued. In such a case the in- 
 dorsement of a magistrate of the new county au- 
 thorizes its service there as fully as if first issued 
 in that county. The custom prevails in England, 
 Scotland, and some of the United States. See 2 
 N. Y. R. S. 590. 
 
 BACKSIDE. A yard at the back part of 
 or behind a house, and belonging thereto. 
 
 The term was formerly much used both in convey- 
 ances and in pleading, but is now of infrequent oc- 
 currence except in conveyances which repeat an 
 ancient description. Chitty, Pr. 177. 
 
 BACKWARDATION. See Backadation. 
 
 BAD. Vicious, evil, wanting in good qual- 
 ities : the reverse of good. See Riddell v. 
 Thayer, 127 Mass. 4S7; Tobias v. Harland, 
 4 Wend. (N. Y.) 537. 
 
 BADGE. A mark or sign worn by some 
 persons, or placed upon certain things, for 
 the purpose of designation. 
 
 Some public officers, as watchmen, policemen, and 
 the like are required to wear badges that they may 
 be readily known. It is used figuratively when we 
 say that retention of possession of personal proper- 
 ty by the seller is a badge of fraud. 
 
 Under its police power a legislature may 
 forbid persons who are not members of so- 
 cieties from wearing the badge of such so- 
 cieties; Hammer v. State, 173 Ind. 199, 89 
 N. B. 850, 24 L. R. A. (N. S.) 795, 140 Am. 
 St. Rep. 24S, 21 Ann. Cas. 1034; Com. v. Mar- 
 tin, 35 Pa. Super. Ct. 241; contra, State v. 
 Holland, 37 Mont. 393, 96 Pac. 719. One who 
 wears a badge of a society without being a 
 member holds himself out to the public and 
 to actual members as guilty of a false per- 
 sonation. It is a deceit and a false pre- 
 tense, and its object could be nothing else 
 than deception, which it is in itself, with pos- 
 sibly ulterior motives; Hammer v. State, 173 
 Ind. 199, 89 N. E. 850, 24 L. R. A. (N. S.) 
 795, 1 10 Am. St. Rep. 248, 21 Ann. Cas. 1034 ; 
 an association may obtain injunctive relief 
 against the use by another association of its 
 emblems ; Benevolent & Protective Order of 
 Elks v. Improved & Protective Order of Elks 
 of the World, 60 Misc. 223, 111 N. Y. Supp. 
 1067, affirmed id., 133 App. Div. 918, 118 N. 
 Y. Supp. 1094. 
 
 BADGE OF FRAUD. A term used in the 
 law of conveyances made to hinder and de- 
 fraud creditors. It is defined as a fact tend- 
 ing to throw suspicion upon a transaction, 
 and calling for an explanation. Bump, Fr. 
 Conv. 31. 
 
 When such a fact appears, its effect Is to 
 require more persuasive proof of the pay- 
 ment of the consideration and the good faith 
 of the parties than would ordinarily be re- 
 quired; Terrell v. Green, 11 Ala. 207. It is 
 not fraud of itself, but evidence to establish 
 a fraudulent intent; Wilson v. Lett, 5 Fla. 
 305 ; Pilling v. Otis, 13 Wis. 495. 
 
 The following have been held to be badges 
 
 of fraud: Indebtedness on the part of the 
 grantor; Callan v. Statham, 23 How. (U. S.) 
 477, 16 L. Ed. 532; Jackson v. Mather, 7 
 Cow. (N. Y.) 301; Cox v. Fraley, 26 Ark. 20; 
 the expectation of a suit; Glenn v. Glenn, 17 
 la. 49S; Hughes v. Rcper, 42 Tex. 116; 
 Schaferman v. O'Brien, 2S Md. 565, 92 Am. 
 Dec. 708 ; Redfield & Rice Mfg. Co. v. Dysart, 
 G2 Pa. 62 ; Godfrey v. Germain, 24 Wis. 410 ; 
 false recitals in the deed ; McKinster v. Bab- 
 cock, 26 N. Y. 378; inadequacy of considera- 
 tion ; Monell v. Scherrick, 54 111. 269 ; Burke 
 v. Murphy, 27 Miss. 167 ; Bray v. Hussey, 24 
 Ind. 228; Jaeger v. Kelley, 52 N. Y. 274; 
 Gibson v. Hill, 23 Tex. 77 ; Craver v. Miller, 
 65 Pa. 456; Wheeler v. Kirtland, 23 N. J. 
 Eq. 14 ; Kempner v. Churchill, 8 Wall. (U. S.) 
 362, 19 L. Ed. 461 ; false statement of the 
 consideration; McKinster v. Babcock, 26 N. 
 Y. 378; Peebles v. Horton, 64 N. C. 374; End- 
 ers v. Swayne, 8 Dana (Ky.) 103 ; secrecy; 
 Barrow v. Bailey, 5 Fla. 9 ; Warner v. Nor- 
 ton, 20 How. (U. S.) 448, 15 L. Ed. 950 ; con- 
 cealment of the deed, not recording it and 
 leaving it in the hands of the grantor ; Sands 
 v. Hildreth, 14 Johns. (N. Y.) 493;' Coates v. 
 Gerlach, 44 Pa. 43; Beecher v. Clark, 12 
 Blatchf. 256, 10 N. B. R. 385, Fed. Cas. No. 
 1,223 ; Hildeburn v. Brown, 17 B. Monr. 
 (Ky.) 779; failure to record a mortgage by 
 agreement; Hutchinson v. Bank, 133 Ind. 
 271, 30 N. E. 952, 36 Am. St. Rep. 537; Day 
 v. Goodbar, 69 Miss. 687, 12 South. 30; a 
 secret trust between the grantor and gran- 
 tee; 3 Co. 80; McCulloch v. Hutchinson, 7 
 Watts (Pa.) 434, 32 Am. Dec. 776; reten- 
 tion of possession of land by the grantor ; 
 Jackson v. Mather, 7 Cow. (N. Y.) 301 ; King 
 v. Moon, 42 Mo. 551 ; Hartshorn v. Eaines, 
 31 Me. 93 ; Lukins v. Aird, 6 Wall. (U. S.) 78, 
 18 L. Ed. 750 ; Purkitt v. Polack, 17 Cal. 327 ; 
 Johnson v. Lovelace, 51 Ga. 18 ; mere delay 
 to record a deed executed for a good con- 
 sideration by an insolvent to his son, where 
 there is no evidence that the son knew of 
 the insolvency, is not a badge of fraud; Sec- 
 ond Nat. Bank of Beloit v. Merrill, 81 Wis. 
 142, 50 N. W. 503, 29 Am. St. Rep. 870 ; but 
 in general anything in the transaction out of 
 the usual course of such transactions is held 
 to be such ; Danjean v. Blacketer, 13 La. 
 Ann. 595; Bump, Fr. Conv. 50. 
 
 BADGER. (From the French bagage, a 
 bundle, and thence is derived bagagier, a car- 
 rier of goods). One who buys corn and 
 victuals in one place and carries them to an- 
 other to sell and make a profit by them. A 
 badger was exempted from the punishment 
 of an engrosser by the statute 5 & 6 Ed. VI. 
 c. 14. Jacob. 
 
 BAG. An uncertain quantity of goods and 
 merchandise, from three to four hundred. 
 Jacob. 
 
 BAG A V EL. The citizens of Exeter had 
 granted to them by charter from Edward I.
 
 bag a v el 
 
 305 
 
 BAGGAGE 
 
 the collection of a certain tribute or toll up- 
 on all manner of wares brought to that city 
 to be sold, toward the paving of the streets, 
 repairing of the walls, and maintenance of 
 the city, which was commonly called bagavel, 
 bethugavel and chippinggavel. Antiq. of Ex- 
 eter. 
 
 BAGGAGE. Such articles of apparel, or- 
 nament, etc., as are in daily use by travel- 
 lers, for convenience, comfort, or recreation. 
 "It includes whatever the passenger takes 
 with him for his personal use or conven- 
 ience according to the habits or wants of the 
 particular class to which he belongs, either 
 with reference to tbe immediate necessities 
 or ultimate purpose of the journey;" per 
 Cockbnrn, C. J., in L. R. 6 Q. B. 612; only 
 such articles of necessity or convenience as 
 are generally carried by passengers for their 
 personal use; Glovinsky v. Steamship Co., 6 
 Misc. 388, 26 N. Y. Supp. 751. 
 
 It is said that the decisions and text-books 
 give us but one definite limitation to the term 
 "baggage,"' and that is that it must be some- 
 thing for the personal use of the traveller; 
 12 Ilarv. L. Rev. 119; but that which one 
 traveller would consider indispensable would 
 be deemed superfluous by another ; 19 C. B. 
 N. S. 321 ; so that his station in life must be 
 taken into consideration ; Coward v. R. Co., 
 16 Lea (Tenn.) 225, 57 Am. Rep. 227; New 
 York, C. & H. R. R. Co. v. Fraloff, 100 U. S. 
 24, 25 L. Ed. 531. What may be necessary 
 for a voyage on land is unfit for a voyage at 
 sea ; and the length of the journey must be 
 considered in determining the quantity of 
 baggage necessary for it; 12 Harv. L. Rev. 
 119, and cases cited. The traveller is en- 
 titled to have carried with him whatever is 
 essential to the ultimate purpose of his jour- 
 ney ; Hannibal & St. J. R. Co. v. Swift, 12 
 Wall. (U. S.) 262, 20 L. Ed. 423 ; unless his 
 requirements are unreasonable ; Oakes v. R. 
 Co., 20 Or. 392, 26 Pac. 230, 12 L. R. A. 318, 
 23 Am. St. Rep. 120 ; Merrill v. Grinnell, 30 
 N. Y. 591. It has been held that a bicycle is 
 not baggage under a statute allowing 100 
 pounds of "ordinary baggage" ; State v. It. 
 Co., 71 Mo. App. 3S5; but in several states 
 they are expressly declared baggage and in 
 New York they must be carried free of charge 
 if the owner travels on the same train. 
 
 In [1S99] 1 Q. B. 243, it is said there are 
 certain requirements which articles must 
 meet in order that they may be regarded as 
 "personal luggage": 1. They must be for the 
 personal use of the passenger. 2. They must 
 be for use in connection with the journey, 
 i. e., something habitually taken by a per- 
 son when travelling for his own use, not 
 merely during the actual journey, but for 
 use during the time he may be away from 
 home. It was further considered that the 
 word luggage involves the idea of a pack- 
 age, and that the law does not recognize as 
 baggage the things contained, as distinct 
 Bouv.— 20 
 
 from the receptacle which • 
 and does not cast any duty on the can I 
 • personal until it had 
 
 placed in a position of reasonable security 
 for handling. 
 
 This term has been held to include jew- 
 elry carried as I a hich formed a part 
 of female attire, the plaintiff h 
 Journey with his family; 4 Bingh. 21s; .M.- 
 Gill v. Rowand, ." Pa. 451, 45 Am. 
 A watch, carried in one's trunk, is pi 
 
 ge; Jones v. Voorhees, l" Ohio 145; 
 v. Wright, 1 Newl . 
 17,115 ; but see Bomar v. Maxwell. 9 II n 
 (Tenn.) 621, 51 Am. I 
 
 Instruments of an army Burgeon; Hannibal 
 & St J. R. Co. v. Swift, 12 Wall. 1 1 . B 
 20 L. Ed. 42."; valuable laics carried by a 
 foreign woman of rank, for which the jury 
 found in $10,000 dai, ew York, C. & 
 
 H. R. R. Co. v. Fraloff, 100 D. 8. 2 1 
 Ed. 531 ; one revolver, but not two ; Chi- 
 cago, R. I. & P. B Co. v. Collins, 56 111. 212: 
 an opera glass; Toledo, W. & W. B. I 
 Hammond, 33 Ind. 379, 5 Am. Bep. 221 : bed- 
 ding of a poor man moving with bis family; 
 Ouimit v. Henshaw, 35 Yt. 604, 84 Am. Dec. 
 646; Glovinsky v. Steamship Co., 4 ML 
 24 N. Y. Supp. 136; such articles as are 
 ordinarily carried by travellers in val 
 Hampton v. Car Co., 42 Mo. App. 134 ; books 
 for reading or amusement; Doyle v. Ki 
 Ind. 212; a harness maker's tools, valued at 
 $10; a rifle; Davis v. R. Co., 10 How. IT. 
 (X. Y.) 330: Porter v. HUdebrand, 14 Pa. 
 129; a rifle, revolver, two gold chains, two 
 gold rings and a silver pencil - ''. r 
 
 Q. B. 66; a carpet; Minter v. R. B., 41 Mo. 
 503, 97 Am. Dec. 2SS ; an illustrated cata- 
 logue, the individual property of a travelling 
 salesman, prepared by himself at his own ex- 
 pense, necessary for use in his bush 
 Staub v. Kendrick, 121 Ind. 226, 23 N. E 79, 
 L. R. A. 619. 
 
 The following have been held not to be 
 baggage: Jewelry bought for pr< 
 vins v. Steamboat Co.. 4 Bosw. (X. V 
 Metz v. R. Co., 85 Cal. 329, 21 Pac. *;i". :> 1 
 R. A. 431, 2(i Am. St. Bep. 228; a stock of 
 jewelry carried by a salesman to be 
 (checked, without saying anything as I 
 Contents, and there being nothing to i! d 
 its contents, and railroad company's 
 having checked it without Inquirl 
 Humphreys v. Perry, lis r. s. 627, i"> Sup. 
 Ct Til. .".7 1.. Ed. 587; a feather-bed not in- 
 tended for use on the Journey; Connolly v. 
 Warren. 106 Mass. 146, 8 Am. B< 
 lawyer's papers and hank notes to be used 
 by him in 1 19 1'. B. X. 8. 
 
 .",21 ; trunk-- contai 
 
 tumes, paraphernalia, and advertising mat- 
 ters of a theatrical company, unl< 
 as baggage, but the carrier, though without 
 
 fault, la liable for the destruction of the 
 trunks where its agent checked them as bag- 
 gage with full knowledge that they contained,
 
 BAGGAGE 
 
 300 
 
 BAGGAGE 
 
 besides personal apparel, stage costumes and 
 properties; Oakes v. R. Co., 20 Or. 392, 2G 
 Pac. 230, 12 L. R. A. 318, 23 Am. St. Rep. 
 126. Samples of merchandise are not bag- 
 gage ; 13 C. B. N. S. 818 ; Stimson v. R. Co., 
 98 Mass. 83, 93 Am. Dec. 140; Hawkins v. 
 Hoffman, G Hill (N. Y.) 586, 41 Am. Dec. 
 767 ; Talcott v. R. Co., 66 Hun 45G, 21 N. Y. 
 Supp. 31S; Ailing v. R. Co., 126 Mass. 121, 
 30 Am. Rep. 6G7 ; Pennsylvania Co. v. Miller, 
 35 Ohio St. 541, 35 Am. Rep. G20; Southern 
 Kansas R. Co. v. Clark, 52 Kan. 398, 34 Pac. 
 1054 ; nor a trunk deposited with the car- 
 rier without being accompanied by the pas- 
 senger; Wright v. Caldwell, 3 Mich. 51; nor 
 money even to a reasonable amount; Haw- 
 kins v. Hoffman, 6 Hill (N. Y.) 586, 41 Am. 
 Dec. 767; Davis v. R. Co., 22 111. 278, 74 Am. 
 Dec. 151; intended for trade, business or 
 investment, or for transportation and not in- 
 tended for the passenger while travelling ; 
 Pfister v. R. Co., 70 Cal. 169, 11 Pac. 686, 59 
 Am. Rep. 404 ; Bomar v. Maxwell, 9 Humphr. 
 (Tenn.) 621, 51 Am. Dec. 682; contra, Dun- 
 lap v. Steamboat Co., 98 Mass. 371 ; Merrill 
 v. Grinnell, 30 N. Y. 594. 
 
 If a carrier knows that merchandise is in- 
 cluded among baggage, and does not object, 
 he is liable to the same extent as for other 
 goods taken in the due course of his busi- 
 ness; Butler v. R. Co., 3 E. D. Smith (N. Y.) 
 571; 8 Exch. 30; but he must have actual 
 knowledge; L. R. 6 Q. B. 612; Michigan 
 Cent R. Co. v. Carrow, 73 111. 348, 24 Am. 
 Rep. 248; Mississippi Cent. R. Co. v. Ken- 
 nedy, 41 Miss. 671 ; Stoneman v. R. Co., 52 
 X. Y. 429 ; Ft. Worth & R. G. R. Co. v. Mil- 
 linery Co. (Tex.) 29 S. W. 196. Where 
 trunks containing merchandise were checked 
 as baggage by a salesman (whose intention 
 was to follow them to the same place) and 
 through the negligence of the carrier were 
 burnt soon after they had reached their des- 
 tination, the carrier was held liable ; Mc- 
 Kibbin v. R. Co., 100 Minn. 270, 110 N. W. 
 964, 8 L. R. A. (N. S.) 489, 117 Am. St. Rep. 
 689; so where a carrier accepted as baggage 
 trunks of samples belonging to the employer 
 of the passenger, the owner was entitled to 
 recover for their loss; Talcott v. R. Co., 159 
 N. Y. 461, 54 N. E. 1; but see 5 Q. B. D. 241; 
 [1895] 2 Q. B. D. 387. 
 
 The general rule seems to be that where a 
 railroad company has given an agent author- 
 ity to receive and check baggage, he must 
 be deemed to have authority to deter ■ nine 
 what class of articles come within the de- 
 scription of baggage, and when he accepts 
 as baggage what is not strictly so, with 
 knowledge or means of knowledge of its 
 character, the company is held responsible 
 for his acceptance of it ; St. Louis S. W. R. 
 Co. v. Berry, GO Ark. 433, 30 S. W. 704, 28 L. 
 U. A. 501, 46 Am. St. Rep. 212; Waldron v. 
 R. Co., 1 Dak. 357, 46 N. W. 456; Chicago, 
 R. I. & P. R. Co. v. Conklin, 32 Kan. 55, 3 
 Pac. 762; Bergstrom v. R, Co., 134 la. 223, 
 
 111 N. W. 818, 10 L. R. A. (N. S.) 1119, 13 
 Ann. Cas. 239; Sherlock v. R. Co., 85 Mo. 
 App. 49; Trimble v. R. Co., 162 N. Y. 84, 56 
 N. E. 532, 48 L. R. A. 115; but see Blumantle 
 v. R. Co., 127 Mass. 322, 34 Am. Rep. 370; 
 and see Bergstrom v. R. Co., 134 la. 223, 111 
 N. W. S18, 10 L. R. A. (N. S.) 1119, 13 Ann. 
 Cas. 239; Common Carriers. 
 
 A railroad's liability for baggage is not 
 affected by the fact that the passenger did 
 not travel on the same train ; Larned v. R. 
 Co., 81 N. J. L. 571, 79 Atl. 289. In The su- 
 preme court of Michigan it was held that one 
 who purchases a ticket for the sole purpose 
 of checking his baggage upon it, and with 
 the intention of travelling to his destination 
 in his private conveyance, can hold the car- 
 rier liable only as a gratuitous bailee, if it 
 be stolen without negligence on the carrier's 
 part; 55 L. R. A. 650, where in a note the 
 cases are considered and the conclusion is 
 reached that the Michigan case is in conflict 
 with the current of opinion and should not 
 be accepted as a precedent, and that the pur- 
 chase of a ticket is a contract which gives 
 the passenger two distinct rights, one to be 
 carried as a passenger, and the other to have 
 his baggage transported ; and that having 
 paid for two privileges, there is no reason 
 why he should be compelled to avail himself 
 of both, unless the carrier's burden in re- 
 spect of one of them is increased by his fail- 
 ure to exercise the other; and see Warner v. 
 R. Co., 22 la. 166, 92 Am. Dec. 389, where it 
 is held that, whether on the same, the preced- 
 ing, or the next train, if the baggage is sent 
 pursuant to an agreement, and as part of 
 the consideration for the fare paid by the 
 passenger, the same rules apply as to care. 
 
 Where a passenger bought a through ticket 
 and checked his baggage to go by a certain 
 route, and the first carrier by mistake deliv- 
 ered the baggage to another carrier, which 
 lost it, the second carrier was held to have 
 assumed the responsibility of a common car- 
 rier, as it should have known by the checks 
 that the baggage was to be carried by an- 
 other route; Fairfax v. R. Co., 73 N. Y. 107, 
 29 Am. Rep. 119. 
 
 Where a passenger in second-class car de- 
 livered a dog to the baggage-master and de- 
 clined to pay for carrying it, and at the 
 plaintiff's destination, the baggage-master re- 
 fused to deliver the dog, without the pay- 
 ment of money, and it was carried past the 
 destination and lost, by the negligence of the 
 baggage-master, held, that plaintiff could re- 
 cover because of his ignorance of a rule as 
 to a payment for conveying his dog on the 
 train ; Kansas City, M. & B. R. Co. v. Hig- 
 don, 94 Ala. 280, 10 South. 282, 14 D. R. A. 
 515, 33 Am. St. Rep. 119. 
 
 The carrier may establish reasonable regu- 
 lations as to baggage and is not liable if they 
 are violated ; Gleason v. Transp. Co., 32 Wis. 
 85, 14 Am. Rep. 710. 
 
 Limitations upon the liability of carriers
 
 BAGGAGE 
 
 307 
 
 BAGGAGE 
 
 are taken most strongly against them ; Louis- 
 ville, N. A. & C. R. Co. v. Nicholai, 4 Ind. 
 App. 110, 30 N. E. 424, 51 Am. St. Hep. 20G. 
 A stipulation exempting the carrier from 
 liability for "any loss or damage" to baggage 
 was held not to extend to loss arising from 
 negligence; Saunders v. R. Co., 128 Fed. 15 ; 
 and one limiting liability to $100; Prentice 
 v. Decker, 49 Barb. (N. Y.) 21; and one ex- 
 empting the company from liability for its 
 servants' negligence would not cover a loss 
 arising from the company's negligence; 
 Weinberg v. S. S. Co., 8 N. Y. Supp. 195 ; but 
 a provision inserted in a steamship ticket 
 limiting the liability of a carrier for loss of 
 ] aggage to a certain amount, unless the true 
 value is declared and excess paid for at reg- 
 ular freight rates, will operate to relieve the 
 carrier from liability for such loss, even 
 when due to his own negligence ; Tewes v. 
 S. S. Co., 186 N. Y. 151, 78 N. E. 864, 8 L. 
 R, A. (N. S.) 190, 9 Ann. Cas. 909. 
 
 Limitations as to the value of baggage are 
 said not to apply to hand baggage carried by 
 a passenger on a car ; 15 Yale L. J. 428. A 
 provision in a ticket, limiting liability for 
 loss of baggage to $100, where goods of the 
 value of $300 were stolen from the baggage 
 while in company's possession, held not to 
 relate to loss or damage from any particular 
 cause, but to the amount of loss only, and 
 if the jury found negligence on the part of 
 the railroad company, the carrier would be 
 liable for the full amount lost; Louisville, 
 N. A. & C Ry. Co. v. Nicholai, 4 Ind. App. 
 119, 30 N. E. 424, 51 Am. St. Rep. 206. Bag- 
 gage carried by a woman, not a pauper, com- 
 ing from Germany to the U. S., consisting of 
 clothing for herself and her two children, 
 together with some bed feathers and covering 
 of the value of $285, is reasonable in quanti- 
 ty and value, and therefore a provision in the 
 transportation ticket, limiting the carrier's 
 liability for loss of baggage to $50, is in- 
 valid, and will not defeat a recovery for 
 loss of such baggage; Glovinsky v. Steam- 
 ship Co., 4 Misc. 266, 24 N. Y. Supp. 136. 
 
 A baggage check merely indicating desig- 
 nation of baggage beyond terminus of is- 
 suing carrier's route does not prove a con- 
 tract to carry to such destination; Marmon- 
 stein v. R. Co., 13 Misc. 32, 34 N. Y. Supp. 
 97. The issuance of a baggage check by a 
 carrier to a passenger is not a contract by 
 the carrier to deliver the baggage at such a 
 point, but simply a means of identification 
 of the .baggage at the end of the route; Hy- 
 man v. R. Co., 66 Hun 202, 21 N. Y. Supp. 
 119. 
 
 Unless negligence is showh. a steamship 
 company is not liable for baggage stolen 
 from a passenger's stateroom; The Hum- 
 boldt, 97 Fed. 656; Clark v. Burns, 118 .Mass. 
 275, 19 Am. Rep. 456; American S. S. Co. v. 
 Bryan, 83 Pa. 446. The contrary rule in 
 New York is based on the idea that a pas- 
 senger steamboat is subject to the liability 
 
 of an inn-keeper; Adams v. Steam 
 151 N. Y. 163, 45 N. E. 309, 34 L. R. A 
 56 Am. St. Rep. 616. 
 
 It was formerly held that can! 
 not liable as such for baggage unless a dl 
 tinct price be paid for its carria ilk. 
 
 2821; and see 3 H. & C. 135; but the rule 
 now otherwise; L. R. 6 Q. B. 612; Powell 
 v. Myers, 28 Wend. (N. Y. i 591 ; Parmelee v. 
 McXulty, 19 111. 556; McGr< gor & Co. v. Kil- 
 gore, 6 Ohio 358, 27 Am. Dec - Dill v. 
 
 R. Co., 7 Rich. 158, 62 Am. Dec. 407; Bomar 
 v. Maxwell, Humph. (Tenn.) 621, 51 Am. 
 Dec. 0S2; they may limit their common- 
 law liability by express contract, and by rea- 
 sonable regulations made known to the pub- 
 lic, but they cannot relieve themselves from 
 liability from loss occasioned by negligence; 
 Hollister v. Nowlen, 19 Wend. (N. Y.) 234, 
 32 Am. Dec. 455; Cole v. Goodwin, 10 Wend. 
 (N. Y.) 251, 32 Am. Dec. 470; Laing v. fold- 
 er, 8 Pa. 47!), 49 Am. Dec. 533; Ohio & M. B. 
 Co. v. Selby, 47 Ind. 471, 17 Am. Rep. 719; 
 Mobile & O. R. Co. v. Hopkins, 41 Ala. 488, 
 94 Am. Dec. 607. See L. R. 10 Q. B. 437. 
 The carrier may make reasonable regula- 
 tions for the checking, custody, and carriage 
 of baggage; Najac v. R. Co., 7 Allen (Mass 
 329, 83 Am. Dec. 686. It is liable as a car- 
 rier until the passenger has had a reason- 
 able time to remove his baggage after its ar- 
 rival; Burgevin v. R, Co., 69 Dun 479, 23 
 N. Y. Supp. 415. 
 
 The carrier is not liable for loss of bag- 
 gage occasioned by "act of God" (Johnstown 
 flood) and not by his own negligence; Long 
 v. R. Co., 147 Pa. 343, 23 Atl. 459, 14 L. R. 
 A. 741, 30 Am. St. Rep. 732. 
 
 As to what may be carried as baggage in 
 a sleeping car, see note 9 L. R. A. (N. S. 
 407. 
 
 As to an innkeeper's liability for bag! 
 of a guest, see Innkeeper. 
 
 BAIL (Fr. battler, to deliver). One who 
 becomes surety for the appearance of the 
 
 defendant in court. 
 
 To deliver the defendant to persons who. 
 in the manner prescribed by law, become 
 security for his appearance in court. 
 
 The word is used both as a substantive and a 
 verb, though more frequently as a substantive, and 
 In civil cases, at least, In the first sense given 
 above. In its more ancient signification, the word 
 Includes the delivery of property, real or personal, 
 by one person to another. Bail in actions was first 
 introduced in favor of defendants, to mitigate the 
 hardships imposed upon them while In the custody 
 of the sheriff under arrest, the security thus offered 
 standing to the sheriff in the place of the body of 
 the defendant. Taking bail was made compulsory 
 upon the sheriffs by the statute 23 Hen. VI. c. 9, 
 and the privilege of the defendant was rendered 
 more valuable and secure by successive statutes, 
 until by statute 12 Geo. I. c. 29, made perpetual by 
 21 Geo. II. c. 3, and 19 Geo. III. c. 70, it was pro- 
 vided that arrests should not be made unless the 
 plaintiff make affidavit as to the amount due, and 
 this amount be endorsed on the writ; and for this 
 sum and no more the sheriff might require bail. 
 
 In the King's Bench, bail above and below were 
 both exacted as a condition of releasing the defend-
 
 BAIL 
 
 308 
 
 BAIL 
 
 ant from the custody In which he was held from the 
 time of his arrest till his final discharge in the 
 suit. In the Common Bench, however, the origin 
 of bail above seems to have been different, as the 
 capias on which bail might be demanded was of ef- 
 fect only to bring the defendant to court, and after 
 appearance he was .theoretically in attendance, but 
 not in custody. The failure to file such bail as the 
 emergency requires, although no arrest may have 
 been made, Is, in general, equivalent to a default. 
 In some states the defendant when arrested gives 
 bail by bond to the sheriff, conditioned to appear 
 and answer to the plaintiff and abide the judgment 
 and not to avoid, which thus answers the purpose 
 of bail above and below ; Hale v. Russ, 1 Greenl. 
 (Me.) 336; Hamilton v. Dunklee, 1 N. H. 172; 
 Pierce v. Read, 2 N. H. 360; Champion v. Noyes, 2 
 Mass. 484 ; Broaders v. Welsh, 2 N. & McC. (S. C.) 
 569; Harwood v. Robertson, 2 Hill (S. C.) 336; 
 West v. Ratledge, 15 N. C. 40 ; Liceth v. Cobb, 18 
 Ga. 314. In criminal law the term is used frequently 
 in the second sense given, and bail is allowed ex- 
 cept in cases where the defendant Is charged with 
 the commission of the more heinous crimes. 
 
 Bail above. Sureties who bind themselves 
 either to satisfy the plaintiff his debt and 
 . or to surrender the defendant into 
 custody, provided judgment be against him 
 in the action and he fail to do so ; Sellon, 
 Pr. 137. 
 
 Bail to the action. Bail above. 
 
 Bail below, or bail to the sheriff. Sureties 
 who bind themselves to the sheriff to secure 
 the defendant's appearance, or his putting in 
 bail to the action on the return-day of the 
 writ. It may be demanded by the sheriff 
 whenever he has arrested a defendant on a 
 bailable process, as a prerequisite to releas- 
 ing the defendant. 
 
 Civil hail. That taken in civil actions. 
 
 Common bail. Fictitious sureties formally 
 entered in the proper office of the court. 
 
 It is a kind of bail above, similar in form to spe- 
 cial bail, but having fictitious persons, John Doe and 
 Richard Roe, as sureties. Filing common bail is 
 tantamount to entering an appearance. 3 Bla. 
 Com. c. six. See Bill of Middlesex. 
 
 Special bail. Responsible sureties who un- 
 dertake as bail above. 
 
 Requisites of. A person to become bail 
 must, in England, be a freeholder or house- 
 keeper; 2 Cbitt. Bail 0G ; 5 Taunt. 174; 
 Lofft 148; must be subject to process of 
 the court, and not privileged from arrest 
 either temporarily or permanently ; 1 D. & 
 R. 127; Coster v. Watson, 15 Johns. (N. Y.) 
 535; Brown v. Lord, Kirb. (Conn.) 
 must be competent to enter into a contract; 
 must be able to pay the amount for which 
 he becomes responsible, but the property 
 may be real or personal if held in his own 
 right; 2 Chit. Bail 97; 11 Price 158; and 
 liable to ordinary legal process; 4 Burr. 2526. 
 
 Persons not excepted to as appearance 
 bail cannot be objected to as bail above; 
 Dunlops v. Laporte, 1 Hen. & M. (Va.i 22; 
 and bail, if of sufficient ability, should not be 
 refused on account of the personal character 
 or opinions of the party proposed ; 4 Q. B. 
 4G8 ; 1 B. & H. Lead. Cr. Cas. 236. 
 
 When it may be given or required. In civil 
 actions the defendant may give bail in all 
 
 cases where he has been arrested; Richards 
 v. Porter, 7 Johns. (N. Y.) 137; and bail be- 
 low, even, may be demanded in some cases 
 where no arrest is made; Coward v. Bohun, 
 1 Harr. & J. (Md.) 538; Mickle v. Baker, 2 
 McCord (S. C.) 250; but where a statute 
 forbids the taking of bail, an order of count 
 authorizing it will not entitle a party thereto 
 or make it valid ; Swanson v. Matson, 31 111. 
 App. 594. 
 
 Bail above is required under some restric- 
 tions in many of the states in all actions 
 for considerable amounts ; Cheshire v. Ed- 
 son, 2 McCord (S. C.) 385; either common; 
 Bernbridge v. Turner, 2 Yeates (Pa.) 429; 
 Anonymous, 20 N. J. L. 494; Morrison v. 
 Silverburgh, 13 111. 551 ; which may be filed 
 by the plaintiff, and judgment taken by de- 
 fault against the defendant if he neglects to 
 file proper bail, after a certain period ; Lane 
 v. Cook, 8 Johns. (N. Y.) 359; Corse v. Col- 
 fax, 2 N. J. L. 684; or special, which is to be 
 filed of course in some species of action and 
 may be demanaed in others; Peareson v. 
 Picket, 1 McCord (S. C.) 472;, Whiting v. 
 Putnam, 17 Mass. 176; Purcell v. Hartness, 
 
 1 Wend. (N. Y.) 303; Douglass v. Wight, 2 
 Brev. (S. C.) 218; but in many cases only, 
 upon special cause shown ; Coxe 277; Brook- 
 field v. Jones, 8 N. J. L. 311; Clason v. Gould, 
 
 2 Caines (N. Y.) 47; Jack v. Shoemaker, 3 
 Binn. (Pa.) 283; Hatcher v. Lewis, 4 Rand. 
 (Va.) 152. 
 
 The existence of a debt and the amount 
 due; Kevins v. Merrie, 2 Whart. (Pa.) 499; 
 Lewis v. Brackenridge, 1 Blackf. (Ind.) 112; 
 Jennings v. Sledge, 3 Ga. 128 ; in an action 
 for debt, and, in some forms of action, other 
 circumstances, must be shown by affidavit 
 to prevent a discharge on common bail; 
 Brooks v. McLellan, 1 Barb. (N. Y.) 247; 
 Lewis v. Brackenridge, 1 Blackf. 112; Hock- 
 springcr v. Ballenburg, 16 Ohio 304; Mustin 
 v. Mustin, 13 Ga. 357. It is a general rule 
 that a defendant who has been once held to 
 bail in a civil case cannot be held a second 
 time for the same cause of action ; Tidd, Pr. 
 184; Clark v. Weldo, 4 Yeates (Pa.) 206; 
 President, etc., of Bank of South Carolina v. 
 Green, 2 Rich. (S. C.) 336; but this rule does 
 not apply where the second holding is in an- 
 other state; Peck v. Hozier, 14 Johns. (N. 
 Y.) 316; Hubbard v. Wentworth, 3 N. H. 43; 
 Parasset v. Gautier, 2 Dall. (U. S.) 330, 1 
 L Ed. 402; Man v. Lowden, 4 McCord (S. 
 C.) 485. And see also James v. Allen, 1 
 Dall. (U. S.) 1S8, 1 L. Ed. 93; Read v, Chap- 
 man, 1 Pet. C. C. 404, Fed. Cas. No. 11,605; 
 Woodbridge v. Wright, 3 Conn. 523; as to the 
 effect of a discharge in insolvency. 
 
 In criminal cases the defendant may in 
 general claim to be set at liberty upon giv- 
 ing bail, except when charged with the com- 
 n of a capital offence; 4 Bla. Com. 
 21)7 ; Ex parte Alexander, 59 Mo. 599, 21 Am. 
 Rep. 393; State v. Arthur, 1 McMull. (S. C.)' 
 45U; State v. Holmes, 3 Strobh. (S. C.) 272;
 
 BAIL 
 
 309 
 
 BAIL 
 
 Ex parte Richardson, 96 Ala. 110, 11 South. 
 810; Ready v. Com., 9 Dana (Ky.i 38; Ex 
 parte White, 9 Ark. 22-_\ One charged with 
 murder should not be discharged on habeas 
 corpus, unless the evidence before the com- 
 mitting magistrate was so insufficient that a 
 verdict thereon requiring capital punishment 
 would be set aside; Iu re Troia, <;4 Cal. 152, 
 28 Pac. 231; Ex parte King, 86 Ala. 620, 5 
 South. 803; Ex parte Hamilton, 65 Miss. 147, 
 3 South. 241 ; and even in capital offences a 
 defendant may be bailed in the discretion 
 of the court, in the absence of constitutional 
 or statutory provisions to the contrary; 
 Archer's Case, 6 Gratt. (Va.) 705; Com. v. 
 Semmes, 11 Leigh (Va.) 665; State v. Sum- 
 mons, 19 Ohio 139; People v. Van Home, 8 
 Barb. (X. Y.) 158; Ex parte Croom, 19 Ala. 
 561; Teople v. Smith, 1 Cal. 9; Ex parte 
 Wray, 30 Miss. 673; Com. v. Phillips, 16 
 Mass. 423; Ullery v. Com., 8 B. Mour. (Ky.) 
 3. Except under extraordinary circumstanc- 
 es, one convicted of felony will not be ad- 
 mitted to bail pending an appeal; Ex parte 
 Smith, 89 Cal. 79, 26 Pac. 638; People v. 
 Folmsbee, 60 Barb. (N. Y.) 480: Ex parte 
 Ezell, 40 Tex. 451, 19 Am. Rep. 32; Corbett 
 v. State, 21 Ga. 391. Where one is indicted 
 for a capital offence, the burden rests on him 
 to show that the proof of his guilt is not 
 evident, on an application for bail; Ex parte 
 Jones, 31 Tex. Cr. R. 422, 20 S. W. 983. 
 
 For any crime or offeuce against the Unit- 
 ed States, not punishable by death, any judge 
 of the United States, or commissioner of a 
 district court to take bail, or any chancellor, 
 judge of the supreme or superior court, or 
 first judge of any court of common pleas, or 
 mayor of any city of any state, or any jus- 
 tice of the peace or magistrate of any state, 
 where the offender may be found, may take 
 bail ; Act Sept. 24, 17S9, § 33. Mar. 2, 1793, 
 § 4; and, after commitment by a justice of 
 the supreme or judge of district court of the 
 United States, any judge of the supreme or 
 superior court of any state (there being no 
 judge of the United States in the district to 
 take sucH bail) may adiuit the person to bail 
 if he offer it. 
 
 W T hen the punishment by the laws of the 
 United States is death, bail can be taken 
 only by the supreme or district court. 
 
 As to the principle on which bail is granted 
 or refused in cases of capital offences in the 
 Kings Bench, see 1 E. & B. 1, 8; Dearsl. Cr. 
 Cas. 51, 60. 
 
 The proceedings attendant on giving bail 
 are substantially the same in England and 
 the United States. An application is made 
 to the proper officer; Gilliam v. Allen, 4 
 Rand. (Va.) 49S, and the bond or the names 
 of the bail proposed filed in the proper 
 office, and notice is given to the opposite 
 party, who must except within a limited 
 time, or the bail justify and are approved. 
 If exception is taken, notice is given, a 
 hearing takes place, the bail must justify, 
 
 and will then be approved unless the other 
 party oppose successfully ; in which case 
 Other bail must be added or substituted. A 
 formal application is. in many cases, dis- 
 pensed with, but a notification is given at the 
 time of filing to the opposite party, and, un- 
 less exceptions are made and notice given 
 within a limited time, the bail justif. 
 are approved. If the sum in which the de- 
 fendant is held is too large, he may apply for 
 mitigation of bail. 
 
 The hail are said to enter into a r> 
 zance when the obligation is one of n 
 which it is when government or the de- 
 fendant is the obligee; when the sheriff is 
 the obligee, it is called a bail bond. See 
 Bail Bond; Recognizance. 
 
 Unless authorized by statute, it is illegal 
 for an officer or magistrate to receive money 
 in lieu of bail for the appearance of a per- 
 son accused of a crime; Keinbard v. City, 49 
 Ohio St. 257, 31 N. I 
 
 Mitigation of excessive bail may be obtain- 
 ed by simple application to the court; Bunt- 
 ing v. Brown, 13 Johns. (N. Y.) 425; 
 pele v. Zantzinger, 3 Yeates \(Pa.) S3; and 
 in other modes ; Jones v. Kelly, 17 
 110 : Evans v. Fester. 1 X. II. 374. Exacting 
 
 Lve bail is against the constitul 
 the United States, and was a misdemeanor 
 at common law; U. S. Const. Amend, art 8; 
 Alexander v. Winn. 1 Brev. (S. C.i 14; U. 
 S. v. Lawrence, 4 Cra. C. C. 51S, Fed. Cas. 
 No. 15,577. 
 
 The liability of bail is limited by the bond; 
 Beers v. Haugbton, 9 ret. (U. S.» 329, 9 L. 
 Ed. 145; Fetterman v. Hopkins, 5 Wat; 
 539; by the ac etiam; Mumford v. Stock- 
 er, 1 Cow. (X. Y.i 601; by the amount for 
 which judgment is rendered; Longstreet v. 
 Lafitte, 2 Speers (S. C.) 004; and 
 circumstances in some cases; Morton v. 
 Bryce, 1 X. & McC. (S. G.) 64; Murden v. 
 Perman, 1 McCord (S. C.) 128; Kinsler v. 
 Kyzer, 4 McCord (S. O.) 315. See Bail 
 Bono ; Recog t i/a- 
 
 The powers of the bail over the defendant 
 are very extensive. As they are SU] 
 to have the custody of the defei 
 may, when armed with the bail piece, arrest 
 him, though out of the juri- if the 
 
 court where they became bail, and in a dif- 
 ferent state; Parker v. Bidwell, 3 i 
 Ruggles v. Corey. Id. 421; Com. v. Brl 
 
 . (Mass.) 138; Nicolls v. Ingersoll, 7 
 Johns. (N. Y.) 14.".; State v. Ling 
 X. C. 775, 14 S. E. 75, ] l L. R. A. 605; may 
 take him while attending court as a suiter. 
 or at any time, even on Sunday; Broome v. 
 Hurst, 4 Yeates (Pa.) 123; Read v. Case, 4 
 Conn. 170, 10 Am. Dec. 110; may break open 
 r if necessary; Nicolls v. Ingersoll, 7 
 Johns, i X. V.> l 15; Read v. Conn. 
 
 166, 10 Am. Dec. 110; may command the as- 
 sistance of the sheriff and his officers : Com. 
 v. I'.rickett, S Pick. (Mass.) 138; and may 
 depute their power to others; State v. Ma-
 
 BAIL 
 
 310 
 
 BAIL BOND 
 
 hon, 3 Harr. (Del.) 5G8. He has been look- 
 ed upon as the principal's gaoler, and the 
 principal, when bailed, has been deemed as 
 truly imprisoned as if he were still confined ; 
 11 Harv. L. Rev. 541. "The bail have their 
 principal on a string and may pull the string 
 whenever they please and render him in 
 their discharge;" C Mod. 231. Where the de- 
 fendant has been surrendered by his sure- 
 ties pending an appeal, a reasonable time 
 and opportunity should be given him to get 
 another bond; In re Bauer, 112 Mo. 231, 20 
 S. W. 4S8. 
 
 To refuse or delay to bail any person is an 
 offence against the liberty of the subject, 
 both at common law and by statute, but does 
 not entitle the person refused to an action 
 unless malice be shown ; 4 Q. B. 4G8 ; 13 id. 
 240; Evans v. Foster, 1 N. H. 374. 
 
 In extradition cases bail is held not to be 
 a question of practice ; it is dependent on 
 statute; although the United States statute 
 in respect to procedure in extradition does 
 not forbid bail in such cases, that is not 
 enough, as the authority must be expressed; 
 and as there is no provision for bail in the 
 act, bail cannot be allowed; In re Carrier, 
 57 Fed. 578. In In re Wright, 123 Fed. 463, 
 bail was denied in an extradition case for 
 want of power. On appeal in Wright v. 
 Henkel, 190 U. S. 40, 23 Sup. Ct. 781, 47 L. 
 Ed. 948, it was said : "We are unwilling to 
 hold that the circuit court possesses no pow- 
 er in respect of admitting to bail other than 
 as specifically vested by statute, or that 
 while bail should not ordinarily be granted in 
 cases of foreign extradition, those courts 
 may not in any case, and whatever the spe- 
 cial circumstances, extend that relief." In 
 [1898] 2 Q. B. 615, it was held that the King's 
 Bench had at common law jurisdiction to 
 admit to bail. 
 
 In Canadian Law. A lease. See Merlin, 
 Repert. Bail. 
 
 Bail emphyteotique. A lease for years, 
 with a right to prolong indefinitely; 5 Low. 
 C. 381. It is equivalent to an alienation; 6 
 Low. C. 58. 
 
 BAIL BOND. A specialty by which the 
 defendant and other persons become bound 
 to the sheriff in a penal sum proportioned to 
 the damages claimed in the action, and which 
 is conditioned for the due appearance of such 
 defendant to answer to the legal process 
 therein described, and by which the sheriff 
 has been commanded to arrest him. 
 
 The defendant usually binds himself as principal 
 with two sureties; but sometimes the ball alone 
 bind themselves as principals, and sometimes also 
 one surety is accepted by the sheriff. The bail bond 
 may be said to stand In the place of the defendant 
 so far as the sheriff is concerned, and, If properly 
 taken, furnishes the sheriff a complete answer to 
 the requirement of the writ, directing him to take 
 and produce the body of the defendant. A bail 
 bond is given to the sheriff, and can be taken only 
 where he has custody of the defendant on process 
 other than final, and Is thus distinguished from re- 
 cognizance, which see. 
 
 The sheriff can take the bond only when he has 
 custody of the defendant's body on process other 
 than final. 
 
 When a bail bond, with sufficient securities 
 and properly prepared, is tendered to the 
 sheriff, he must take it and discharge the 
 defendant ; Stat. 23 Hen. VI. c. 10, § 5. 
 
 The requisites of a bail bond are that it 
 should be under seal; 1 Term 41S; Walker 
 v. Lewis, 3 N. C. 10 ; Peyton v. Moseley, 3 T. 
 B. Monr. (Ky.) 80; Payne v. Brittons Ex'r., 
 6 Rand. (Va.) 101; should be to the sheriff 
 by the name of the office ; 1 Term 422 ; Loker 
 v. Antonio, 4 McCord (S. C.) 175; Handley's 
 Adm'r v. Swings, 4 Bibb (Ky.) 505; Conant 
 v. Sheldon, 4 Gray (Mass.) 300; conditioned 
 in such manner that performance is possible ; 
 3 Campb. 181 ; Fanshor v. Stout, 4 N. J. L. 
 319; for a proper amount; Oxley v. Turner, 
 2 Va. Cas. 334 ; Ellis v. Robinson, 3 N. J. L. 
 707; for the defendant's appearance at the 
 place and day named in the writ; 1 Term 
 418; Holmes v. Chadbourne, 4 Greenl. (Me.) 
 10; Robeson \. Thompson, 9 N. J. L. 97; 
 Carter v. Cockrill, 2 Munf. (Va.) 448; 
 Blanding v. Rogers, 2 Brev. (S. C.) 394, 4 
 Am. Dec. 595 ; see Bail ; and should describe 
 the action in which the defendant is arrest- 
 ed with sufficient accuracy to distinguish it ; 
 Ralston v. Love, Hard. (Ky.) 501; Colburn 
 v. Downes, 10 Mass. 20; Kelly v. Com., 9 
 Watts (Pa.) 43; but need not disclose the 
 nature of the suit ; 6 Term 702. A bail bond 
 which fails to specify the charge which the 
 principal is to answer is void and the de- 
 fect cannot be remedied by testimony; Peo- 
 ple v. Gillman, 58 Hun 368, 12 N. Y. Supp. 
 40. The sureties must be two or more in 
 number to relieve the sheriff ; 2 Bingh. 227 ; 
 Long v. Billings, 9 Mass. 482; Seymour v. 
 Curtiss, 1 Wend. (N. Y.) 108; and he may 
 insist upon three, or even more, subject to 
 statutory provisions on the subject; 5 M. & 
 S. 223; but the bond will be binding if only 
 one be taken ; Glezen v. Rood, 2 Mete. 
 (Mass.) 490; Caines v. Hunt, 8 Johns. (N. 
 Y.) 358; Johnson's Assignee v. Williams, 2 
 Over. (Tenn.) 178; Lane v. Smith, 2 Pick. 
 (Mass.) 284. 
 
 Putting in bail to the action ; 5 Burr. 2683 ; 
 and waiver of his right to such bail by the 
 plaintiff; Phillips v. Oliver, 5 S. & R. (Pa.) 
 419; Flack v. Eager, 4 Johns. (N. Y.) 185; 
 Culpeper Agricultural & Mfg. Soc. v. Digges, 
 6 Rand. (Va.) 165, 18 Am. Dec. 708; Hub- 
 bard v. Shaler, 2 Day (Conn.) 199; or a 
 surrender of the person of the defendant, 
 constitute a performance or excuse from 
 the performance of the condition of the 
 bond; 1 B. & P. 326; Stockton v. Throg- 
 morton, 1 Baldw. 148, Fed. Cas. No. 13,- 
 463; Strang v. Barber, 1 Johns. Cas. (N. 
 Y.) 329; Ellis v. Hay, id. 334; McClurg v. 
 Bowers, 9 S. & R. (Pa.) 24; Coolidge v. 
 Cary, 14 Mass. 115; Moyers v. Center, 2 
 Strobh. (S. C.) 439; Thorn v. Delany, 6 Ark. 
 219; see State v. Lingerfelt, 109 N. C. 775,
 
 BAIL BOND 
 
 311 
 
 BAIL PIECE 
 
 14 S. E. 75, 14 L. R. A. G05 ; as do many 
 other matters which may be classed as 
 changes in the circumstances of the defend- 
 ant abating the suit ; Treasurers of State v. 
 Moore's Ex'rs, 1 N. & McC. (S. 0.) 215 ; 
 Champion v. Noyes, .'! Mass. 4S5; including 
 a discharge in insolvency ; Saunders v. Bobo, 
 2 Bail. (S. C.) 492; Kane v. Ingraham, 2 
 Johns. Cas. (N. Y.) 403; Champion v. Noyes, 
 2 Mass. 481; Sergeant v. Stryker, 16 N. J. 
 L. 406, 32 Am. Dec. 404; Richmond v. De 
 Young, 3 Gill & J. (Md.) 64; matters aris- 
 ing from the negligence of the plaintiff ; 
 2 B. & P. 5H8 ; or from Irregularities in pro- 
 ceeding against the defendant; 3 Bla. Com. 
 292; Boggs v. Chichester, 13 N. J. L. 209; 
 Waples v. Derrickson, 1 Ilarr. (Del.) 134. 
 Where the recognizance is for the appear- 
 ance of a prisoner, and he docs appear and 
 pleads guilty, it cannot be forfeited for fail- 
 ure to appear subsequently to answer the 
 sentence; State v. Cobb, 44 Mo. App. 375. 
 
 In those states in which the bail bond is 
 conditioned to abide the judgment of the 
 court as well as to appear, some of the acts 
 above mentioned will not constitute perform- 
 ance. See Recognizance. The plaintiff may 
 demand from the sheriff an assignment of 
 the bail bond, and may sue on it for his own 
 benefit; Stat. 4 Anne, c. 16, § 20; Roop v. 
 Meek, 6 S. & R. (Pa.) 545; Higgins v. Glass, 
 47 N. C. 353 ; unless he has waived his right 
 so to do; Huguet v. Hallet, 1 Caines (N. Y.) 
 55 ; or has had all the advantages he would 
 have gained by entry of special bail ; Priest- 
 man v. Keyser, 4 Binn. (Pa.) 344; Union 
 Bank of New York v. Kraft, 2 S. & R. (Pa.) 
 284. 
 
 The remedy Is by scire facias in some 
 states ; Pierce v. Read, 2 N. II. 359 ; Hunter 
 v. Hill, 3 N. C. 223; Harvey v. Goodman, 9 
 Yerg. (Tenn.) 273; Usher v. Frink, 2 Brev. 
 (S. C.) 84; Belknap v. Davis, 21 Vt. 409; 
 Waughhop v. State, 6 Tex. 337. The United 
 States is not restricted to the remedies pro- 
 vided by the laws of a state in enforcing a 
 forfeited bond taken in a criminal case, but 
 may proceed according to the common Law; 
 U. S. v. Insley, 54 Fed. 221, 4 C. C. A. 290. 
 See Justification. 
 
 BAIL COURT. A court auxiliary to the 
 court of King's Bench at Westminster, where- 
 in points connected more particularly with 
 pleading and practice were argued and de- 
 termined. Wharton, Law Diet 2d Lond. ed. 
 It has been abolished. 
 
 BAIL DOCK. Formerly at the Old Bail- 
 ey, in London, a small room taken from one 
 of the corners of the court, and left open at 
 the top, in which certain malefactors were 
 placed during trial. Cent. Diet. 
 
 BAIL PIECE. A certificate given by a 
 judge or the clerk of a court, or other per- 
 son authorized to keep the record, in which 
 it is certified that the bail became bail for 
 
 the defendant in a certain sum and in a 
 particular case. It was the practice, for- 
 merly, to write these certificates upon 
 pieces of parchment, in the following form : — 
 In the court of , of the Term of 
 
 in the year of our Lord 
 City and County of — 
 
 Theunis Thew is delivered to bail, upon 
 the i a king of his body, to Jacobus Vanzant, 
 
 of the city of , merchant, and to John 
 
 Doe, of the same city, yeoman. 
 
 Smith, Je. j At the suit of 
 
 Attor'u for Deft. ] Philip Carswki.i.. 
 
 Taken and acknowledged the — day of 
 — , A. D. , before me. D. II. 
 
 See 3 Bla. Com. App.; 1 Sellon, I'r. L39. 
 
 BAILABLE ACTION. An action in which 
 the defendant is entitled to be discharged 
 from arrest only upon giving bond to an- 
 swer. 
 
 BAILABLE PROCESS. Process under 
 which the sheriff is directed to arrest the 
 defendant and is required by law to dis- 
 charge him upon his tendering suitable bail 
 as security for his appearance. A capias 
 ad respondendum is bailable; not so a capias 
 ad satisfaciendum. 
 
 BAILEE. One to whom goods are balled; 
 the party to whom personal property is de- 
 livered under a contract of bailment 
 
 His duties are to act In good faith, and 
 perform his undertaking, in respect to the 
 property intrusted to him, with the diligence 
 and care required by the nature of his en- 
 gagement. 
 
 When the bailee alone receives benefit 
 from the bailment, as where he borrows 
 goods or chattels for use, he is bound to 
 exercise extraordinary care and diligence in 
 preserving them from loss or injury : 
 nett v. O'Brien. 37 111. 250; Ross v. Clark. 
 27 Mo. 549; but he is not an insurer; 9 C. 
 & P. 383. 
 
 When the bailment is mutually beneficial. 
 as where chattels are hired or pledged to se- 
 cure a debt, the bailee is bound to exercise 
 ordinary care in preserving the property; 
 Petty v. Overall. -12 Ala. 145, '.>t Am. I >ec. 
 634; Dearbourn v. Bank, 58 Me. 275; Brie 
 Bank v. Smith, 3 Brewst (Pa.) 9; St. 1 
 v. Davidson. 6 Cal. 643. 
 
 When the bailee receives no benefit from 
 the bailment, as where he accepts chattels 
 or money to keep without recompensi 
 undertakes gratuitously the performance of 
 some commission in regard to them, he is 
 answerable only for the use of the ordinary 
 care which he bestows upon his own proper- 
 ty of a similar nature: Edw. F.ailin. 5 43. 
 It has been held that such a bailee would be 
 liable only for gross neglect or fraud; Mc- 
 Kay v. Hamblin, 40 Miss. 472; Gulledge v. 
 Howard. i 1 :; Ark. 61 : Kdson v. Weston, 7 
 Cow. (X. Y.) 278; Burk v. Dempster. 
 Neb. 426, 51 X. W. 'J76 ; Ilibernia Bldg. Ass'n
 
 BAILEE 
 
 312 
 
 BAILEE 
 
 v. McGrath, 154 Pa. 296, 26 Atl. 377, 35 
 Am. St Rep. 828. The case must have rela- 
 tion to the nature of the property bailed; 
 Jenkins v. Motlow, 1 Sneed (Tenu.) 248, 60 
 Am. Dec. 154. 
 
 These differing degrees of negligence have 
 been doubted. See Bailment. 
 
 The bailee is bound to redeliver or return 
 the property, according to the nature of his 
 engagement, as soon as the purpose for 
 which it was bailed shall have been accom- 
 plished. Nothing will excuse the bailee from 
 delivery to his bailor, except by showing 
 that the property was taken from him by 
 law, or by one having a paramount title, or 
 that the bailor's title had terminated ; Bliven 
 v. R. Co., 36 X. Y. 403; Burton v. Wilkin- 
 son, 18 Vt ISO, 46 Am. Dec. 145; Bliven v. 
 R. Co., 35 Barb. (N. Y.) 191. 
 
 He cannot dispute his bailor's title ; Edw. 
 Bailm. § 73; Dougherty v. Chapman, 29 Mo. 
 App. 233; nor can he convey title as against 
 the bailor, although the purchaser believes 
 him to be the true owner; Hendricks v. 
 Evans, 46 Mo. App. 313. 
 
 The bailee has a special property in the 
 goods or chattels intrusted to him, sufficient 
 to enable him to defend them by suit against 
 all persons but the rightful owner. The 
 depositary and mandatary acting gratuitous- 
 ly. Miid the finder of lost property, have this 
 ; Edw. Bailm. § 245 ; Garlick v. James, 
 12 Johns. (N. Y.) 147, 7 Am. Dec. 294. 
 
 A bailee with a mere naked authority, 
 having a right to remuneration for his trou- 
 ble, but coupled with no other interest, may 
 support trespass for any injury amounting 
 to a trespass done while he was in the actu- 
 al possession of the thing; Edw. Bailm. 37; 
 Faulkner v. Brown, 13 Wend. (N. Y.) 63; 
 Moran v. Packet Co., 35 Me. 55. A bailee 
 may recover in trover for goods wrongfully 
 converted by a third person ; McGraw v. Pat- 
 terson, 47 111. App. 87. 
 
 A bailee for work, labor, and services, 
 such as a mechanic or artisan who receives 
 chattels or materials to be repaired or man- 
 ufactured, has a lien upon the property for 
 his services; 2 Pars. Contr. 145, 146; 3 id. 
 270-273; Wheeler v. MeFarland, 10 Wend. 
 (X. Y.) 318. Other bailees, innkeepers, com- 
 mon carriers, and warehousemen, also, have 
 a lien for their charges. 
 
 The responsibilities of a bailee cannot be 
 thrust upon one without his knowledge and 
 against his consent; they must be voluntari- 
 ly assumed by him or his agents ; Fi rst Xat. 
 Bank of Lyons v. Bank, 60 N. Y. 278, 19 Am. 
 Rep. 181 ; Story, Bailm. 60. A constructive 
 acceptance is sufficient; Rodgers v. Stophel, 
 32 Pa. Ill, 12 Am. Dec. 775; as where one 
 comes into possession by mistake ; 1 Str. 505 ; 
 Morris v. R. Co., 1 Daly.(X. Y.) 202; or for- 
 tuitously; Preston v. Xeale, 12 Gray (Mass.) 
 222, citing Story, Bailm. § 44 a; or where it 
 is a custom of trade ; Westcott v. Thompson, 
 18 N. Y. 3<J3. Where property is consigned 
 
 to a person as bailee, with specific directions 
 as to its disposal, he may refuse to accept; 
 Kansas Elevator Co. v. Harris, 6 Kan. App. 
 89, 49 Pac. 674; since a person has the same 
 right to decline becoming a bailee as he has 
 to decline becoming a purchaser; King v. 
 Richards, 6 Whart. (Pa.) 418, 37 Am. Dec. 
 420; but innkeepers, common carriers, wharf- 
 ingers or warehousemen, as persons exercis- 
 ing a public employment, are not within 
 this rule. See those titles. 
 
 See also Schouler, Bailm.; Coggs v. Ber- 
 nard, Sm. Lead. Cas. ; Bailment. 
 
 BAILIE. In Scotch Law. An officer ap- 
 pointed to give infeftment. 
 
 In certain cases it is the duty of the sheriff, as 
 king's bailie, to act: generally, any one may be 
 made bailie, by filling in his name in the precept of 
 sasine. 
 
 A magistrate possessing a limited criminal 
 and civil jurisdiction. Bell, Diet. 
 
 BAILIFF. A person to whom some au- 
 thority, care, guardianship, or jurisdiction is 
 delivered, committed, or intrusted. Spelman, 
 Gloss. 
 
 A sheriff's officer or deputy. 1 Bla. Com. 
 344. 
 
 A court attendant, sometimes called a tip- 
 staff. 
 
 A magistrate, who formerly administered 
 justice in the parliaments or courts of 
 France, answering to the English sheriffs 
 as mentioned by Bracton. 
 
 There are still bailiffs of particular towns in 
 England; as, the bailiff of Dover Castle, etc.; oth- 
 erwise, bailiffs are now only officers or stewards, 
 etc. ; as, bailiffs of liberties, appointed by every 
 lord within his liberty, to serve writs, etc.; bailiffs 
 errant or itinerant, appointed to go about the coun- 
 try for the same purpose; sheriff's bailiffs, sheriff's 
 officers to execute writs; these are also called 
 bound bailiffs, because they are usually bound in a 
 bond to the sheriff for the due execution of their 
 office ; bailiffs of court-baron, to summon the court, 
 etc.; bailiffs of husbandry, appointed by private per- 
 sons to collect their rents and manage their estates ; 
 water bailiffs, officers in port towns for searching 
 ships, gathering tolls, etc. Bacon, Abr. 
 
 A person acting in a ministerial capacity 
 who has by delivery the custody and ad- 
 ministration of lands or goods for the bene- 
 fit of the owner or bailor, and is liable to 
 render an account thereof. Co. Litt. 271 ; 
 Story, Eq. Jur. § 446 ; Barnum v. Landon, 25 
 Conn. 149. 
 
 The word is derived from the old French bailler, 
 to deliver, and originally implied the delivery of 
 real estate, as of land, woods, a house, a part of 
 the fish in a pond; Ow. 20; 2 Leon. 194; 37 Edw. 
 III. c. 7 ; 10 Hen. VII. c. 30; but was afterwards 
 extended to goods and chattels. Every bailiff is 
 a receiver, but every receiver is not a bailiff. 
 Hence it is a good plea that the defendant never 
 was receiver, but was bailiff. 18 Edw. III. 16. See 
 Cro. Eliz. 82, 83; Fitzh. N. B. 134 F; 8 Coke 48 a, b. 
 
 From a bailiff are required administration, 
 care, management, skill. He is entitled to 
 allowance for the expense of administration, 
 and for all things done in his office accord- 
 ing to his own judgment without the special 
 direction of his principal, and also for casu-
 
 BAILIFF 
 
 313 
 
 BAIL 
 
 al things done in the common course of busi- 1 
 ness; Co. Litt. 89 a ; Com. Dig. E, 12; Brooke, 
 Abr. Ace. 18; but not for things foreign to 
 his office; Brooke, Abr. Ace. 20, 88; Plowd. 
 282 b, 14; Com. Dig. Ace. E, 13; Co. Litt. 172. 
 Whereas a mere receiver, or a receiver who 
 is not also a bailiff, is not entitled to allow- 
 ance for any expenses; 1 Kolle, Abr. 119; 
 Com. Dig. E, 13; James v. Browne, 1 Dall. 
 (U. S.) 340, 1 L. Ed. 165. 
 
 A bailiff may appear and plead for his 
 principal in an assize; "and his plea com- 
 mences" thus: "J. S., bailiff of T. N.,«comes," 
 etc., not "T. N., by his bailiff J. S., comes," 
 etc. Co. 2d Inst. 415; Keilw. 117 b. As to 
 what matters he may plead, see Co. 2d Inst 
 414. 
 
 BAILIWICK. The jurisdiction of a sheriff 
 or bailiff. 1 Bla. Com. 344. 
 
 A liberty or exclusive jurisdiction which 
 was exempted from the sheriff of the county, 
 and over which the lord appointed a bailiff, 
 with such powers within his precinct as the 
 under-sheriff exercised under the sheriff of 
 the county. Whishaw, Lex. 
 
 BAILLEW DE FONDS. In Canadian Law. 
 The unpaid vendor of real estate. 
 
 His claim is subordinate to that of a sub- 
 sequent hypothecary creditor claiming under 
 a conveyance of prior registration: 1 Low. 
 C. 1, 6 ; but is preferred to that of the physi- 
 cian for services during the last illness; 9 
 Low. C. 497. 
 
 BAILLI. In Old French Law. One to 
 whom judicial authority was assigned or 
 delivered by a superior. Black, L. Diet. 
 
 BAILMENT. A delivery of something of 
 a personal nature by one party to another, 
 to be held according to the purpose or object 
 of the delivery, and to be returned or deliv- 
 ered over when that purpose is accomplished. 
 Prof. Joel Parker, MS. Lect. Harvard Law 
 School, 1851. 
 
 The right to hold may terminate, and a duty of 
 restoration may arise, before the accomplishment 
 of the purpose ; but that does not necessarily enter 
 into the definition, because such duty of restoration 
 was not the original purpose of the delivery, but 
 arises upon a subsequent contingency. The party 
 delivering the thing is called the bailor; the party 
 receiving it, the bailee. 
 
 Various attempts have been made to give a pre- 
 cise definition of this term, upon some of 'which 
 there have been elaborate criticisms, see Story, 
 Bailm. 4th ed. § 2, n. 1, exemplifying the maxim. 
 Omnia defmitio in lege periculosa est; but the one 
 above given is concise, and sufficient for a general 
 definition. 
 
 Some other definitions are here given as illus- 
 trating the elements considered necessary to a bail- 
 ment by the different authors cited. 
 
 A delivery of a thing in trust for some special ob- 
 ject or purpose, and upon a contract, express or 
 implied, to conform to the object or purpose of the 
 trust. Story, Bailm. § 2. See Merlin, Repert. Bail. 
 
 A delivery of goods in trust upon a contract, ei- 
 ther expressed or implied, that the trust shall be 
 faithfully executed on the part of the bailee. 2 Bla. 
 Com. 451. See id. 395. 
 
 A delivery of goods in trust upon a contract, ex- 
 pressed or implied, that the trust shall be duly exe- 
 
 cuted, and the goods restored by the bailee as soon 
 as the purposes of the bailment shall be answered. 
 2 Kent 559. 
 
 A delivery of goods on a condition, express or im- 
 plied, that they shall be restored by the bailee to 
 the bailor, or according to his directions, as soon as 
 the purpose for which they are bailed shall be an- 
 swered. Jones, Bailm. 1. 
 
 A delivery of goods in trust on a contract, 
 expressed or implied, that the trust shall be duly 
 executed, and the goods redelivered as soon as the 
 time or use for which they were bailed shall hav2 
 elapsed or be performed. Jones, Bailm. 117. 
 
 According to Story, the contract does not 
 sarily imply an undertaking to redeliver the goods; 
 and the first definition of Jones here given would 
 seem to allow of a similar conclusion. On the other 
 hand, Blackstone, although his definition does not 
 include the return, speaks of it in all his example? 
 of bailments as a duty of the bailee; and Kent says 
 that the application of the term to cases in 
 no return or delivery or redelivery to the owner or 
 his agent is contemplated, is extending the defini- 
 tion of the term beyond its ordinary acceptation in 
 the English law. A consignment to a factor would 
 be a bailment for sale, according to Story ; while 
 according to Kent it would not be Included under 
 the term bailment. 
 
 Sir William Jones has divided bailments 
 into five sorts, namely: depositum, or de- 
 posit; mandatum, or commission without rec- 
 ompense; commodatum, or loan for use with- 
 out pay ; pianus, or pawn; locatum, or hiring, 
 which is always with reward. This last is 
 subdivided into locatio rei, or hiring, by 
 which the hirer gains a temporary use of the 
 thing; locatio opcris faciendi, when some- 
 thing is to be done to the thing delivered ; 
 locatio operis mercium vehendarum, when 
 the thing is merely to be carried from one 
 place to another. Jones, Bailm. 36. See 
 these several titles. 
 
 A better general division, however, for 
 practical purposes, is into three kinds. First, 
 those bailments which are for the rionefir <>f 
 the bailor, or of some person whom he repre- 
 sents. Second, those for the benefit of the 
 bailee, or some person represented by him. 
 Third, those which are for the benefit of 
 both parties. 
 
 A radical distinction between a bailment 
 and a chattel mortgage is that, by a mort- 
 gage, the title is transferred to the mort- 
 gagee, subject to be revested by performance 
 of the condition, but, in case of a bailment, 
 the bailor retains the title and parts with the 
 possession for a special purpose; Walker v. 
 Staples, 5 Allen (Mass.) 34. See Mom 
 
 A hiring of property for a specific term is 
 a bailmeut, though the hirer has an option 
 to purchase before the expiration of the 
 term; Hunt v. Wyman, 100 Mass. 198; Col- 
 lins v. R. Co., 171 Pa tl. : , .::i ; Bailey 
 v. Colby, 34 N. H. 29. 00 Am. Dec. 752. A 
 telegraph company receiving a message is 
 said to be a bailee for hire and not a com- 
 mon carrier: Western Union Telegraph Co. 
 v. Fontaine, 5S Ga. 433 ; and to be governed 
 by the law applicable to that class of bail- 
 3 called locatio operis faciendi; Pinck- 
 ney v. Telegraph Co., 19 S. C. 71, 45 Am. 
 Rep. 765. See Telegraph.
 
 BAILM KNT 
 
 314 
 
 BAILMENT 
 
 An agreement by which A is to let B have ] 
 a horse, in consideration that B will let A 
 have another horse, creates an exchange, not 
 a bailment; King v. Fuller, 3 Cai. (N. Y.) 
 152; and where a jeweler's sweepings were 
 delivered under an option to return either 
 the product or its equivalent in value, the 
 transaction was held to be either an ex- 
 change or a sale; Austin v. Seligman, 21 
 Blatchf. 506, 18 Fed. 519. 
 
 Where animals are delivered to be taken 
 care of for a certain time, and at the ex- 
 piration of that time the same number of 
 animals is to be returned, and any increase 
 is to be enjoyed by both parties, there is a 
 bailment, not a partnership; Robinson v. 
 Haas, 40 Cal. 474 ; so one who hired a boat, 
 paying its running expenses out of the earn- 
 ings and dividing what was left with the 
 owner, was held a bailee, prior to paying the 
 expenses and striking a balance; Ward v. 
 Thompson, Fed. Cas. No. 17,162. 
 
 A contract for hiring teams and carriages 
 for a certain time at a certain price, which, 
 by its terms, is one of bailment, is not con- 
 verted into one of service, so as to render 
 the owner liable for the acts of the hirer, 
 because the contract provides for the rates to 
 be charged upon sub-letting the property and 
 limits the territory in which it can be used 
 and the kind of work that can be done, and 
 because the owner employs an agent to su- 
 pervise this branch of his business, to secure 
 men to undertake the work and to make con- 
 tracts with them ; McColligan v. R. Co., 214 
 Pa. 229, 63 Atl. 792, 6 L. R. A. (N. S.) 544, 
 112 Am. St. Rep. 739, distinguishing L. R. 
 7 C. P. 272 ; L. R. 23 Q. B. D. 281 ; [1902] 2 
 K. B. 38. 
 
 When the identical article is to be returned 
 in the same or in some altered form, the con- 
 tract is one of bailment and the title to the 
 property is not changed ; but when there is 
 no obligation to return the specific article 
 and the receiver is at liberty to return an- 
 other thing of equal value, then the transac- 
 tion is a sale; Sturm v. Boker, 150 U. S. 
 312, 14 Sup. Ct. 99, 37 L. Ed. 1093. This dis- 
 tinction or test of a bailment is recognized 
 in Lafiin & R. Powder Co. v. Burkhardt, 97 
 U. S. 116, 24 L. Ed. 973 ; Walker v. Butterick, 
 105 Mass. 237; Mlddleton v. Stone, 111 Pa. 
 589, 4 Atl. 523. 
 
 There are three degrees of care and dili- 
 gence required of the bailee, and three de- 
 grees of the negligence for which he is re- 
 sponsible, according to the purpose and ob- 
 ject of the bailment, as shown in those three 
 classes ; and the class serves to designate the 
 degree of care, and of the negligence for 
 which he is responsible. Thus, in the first 
 class the bailee is required to exercise only 
 slight care, and is responsible, of course, only 
 for gross neglect. In the second he is re- 
 quired to exercise great care, and is respon- 
 sible even for slight neglect In the third 
 
 he is required to exercise ordinary care, and 
 is responsible for ordinary neglect. See 
 Bailee. 
 
 It has been held in some cases that there 
 are, properly speaking, no degrees of negli- 
 gence (though the above distinctions have 
 been generally maintained in the cases ; Edw. 
 Bailm. § 61); 11 M. & W. 113; The New 
 World v. King, 16 How. (U. S.) 474, 14 L. Ed. 
 1019 ; Perkins v. R. Co., 24 N. Y. 207, 82 Am. 
 Dec. 281 ; L. R. 1 C. P. 612. 
 
 When a person receives the goods of an- 
 other to keep without recompense, and he 
 acts in good faith, keeping them as his own, 
 he is not answerable for their loss or injury. 
 As he derives no benefit from the bailment, 
 he is responsible only for bad faith or gross 
 negligence ; Smith v. Bank, 99 Mass. 605, 97 
 Am. Dec. 59 ; 2 Ad. & E. 256 ; Griffith v. Zip- 
 perwick, 28 Ohio St. 388; Laforge v. Mor- 
 gan, 11 Mart. (O. S.) La. 462 ; Knowles v. R. 
 Co., 38 Me. 55, 61 Am. Dec. 234; Tracy v. 
 Wood, 3 Mas. 132, Fed. Cas. No. 14,130; 2 
 C. B. 877; Buru v. Dempster, 34 Neb. 426, 
 51 N. W. 976; Kincheloe v. Priest, 89 Mo. 
 240, 1 S. W. 235, 58 Am. Rep. 117. But this 
 obligation may be enlarged or decreased by 
 a special acceptance; 2 Kent 565; Story, 
 Bailm. § 33 ; 2 Ld. Raym. 910 ; Ames v. Bel- 
 den, 17 Barb. (N. Y.) 515 ; and a spontaneous 
 offer on the part of the bailee increases the 
 amount of care required of him ; 2 Kent 565. 
 Knowledge by the bailee of the character of 
 the goods; Jones, Bailm. 38; and by the 
 bailor of the manner in which the bailee 
 will keep them; Knowles v. R. Co., 38 Me. 55, 
 61 Am. Dec. 234; are important circum- 
 stances. 
 
 A bank (national or otherwise) accustomed 
 to keep securities, whether authorized to do 
 so by its charter or not, is liable for their 
 loss by gross carelessness; First Nat. Bank 
 v. Graham, 79 Pa. 106, 21 Am. Rep. 49 ; Turn- 
 er v. Bank, 26 la. 562; Chattahoochee Nat. 
 Bank v. Schley, 58 Ga. 369 ; Gray v. Merri- 
 am, 148 111. 179, 35 N. E. 810, 32 L. R. A. 
 769, 39 Am. St. Rep. 172; Preston v. Prath- 
 er, 137 U. S. 604, 11 Sup. Ct. 162, 34 L. Ed. 
 788 ; see First Nat. Bank v. Bank, 60 N. Y. 
 278, 19 Am. Rep. 181; contra, Whitney v. 
 Bank, 50 Vt. 389, 28 Am. Rep. 503. A na- 
 tional bank has power to receive such de- 
 posits; National Bank v. Graham, 100 U. S. 
 699, 25 L. Ed. 750. 
 
 So when a person receives an article and 
 undertakes gratuitously some commission in 
 respect to it, as to carry it from one place 
 to another, he is only liable for its injury 
 or loss through his gross negligence. It is 
 enough if he keep or carry it as he does his 
 own property ; 6 C. Rob. Adm. 141 ; Tracy 
 v. Wood, 3 Mas. 132, Fed. Cas. No. 14,130: 
 and cases above. A treasurer of an associa- 
 tion who receives no compensation is only 
 liable for gross negligence in paying out 
 funds, as he is a gratuitous bailee ; Hibernia
 
 BAILMENT 
 
 315 
 
 BAILMENT 
 
 Building Ass'n v. McGrath, 154 Pa. 296, 26 
 Atl. 377, 35 Am. St. Rep. S28. See Man dam;. 
 As to the amount of skill such bailee must 
 possess aud exercise, see -' Kent 509; Story, 
 Bailm. § 174; Fellowes v. Gordon, 8 B. Monr. 
 (Ky.) 415; Beardslee v. Richardson, 11 Wend. 
 (X. Y.) 25, 25 Am. Dec. 59G; Ferguson v. Por- 
 ter, 3 Fla. 27 ; 11 M. & W. 113 ; and more 
 skill may be required in cases of voluntary 
 offers or special undertakings; 2 Kent 573. 
 
 The borrower, on the otber hand, who re- 
 ceives the entire benefit of the bailment, must 
 use extraordinary diligence in taking care 
 of the thing borrowed, and is responsible for 
 even the slightest neglect ; Niblett v. White's 
 Heirs, 7 La. 253; Moore v. Westervelt, 27 
 N. Y. 234 ; 2 Ld. Rayin. 909; Ross v. Clark, 
 27 Mo. 549; Green v. Hollingsworth, 5 Dana 
 <Ky.) 173, 30 Am. Dec. 6S0. See Hagebush v. 
 Ragland, 78 111. 40. 
 
 He must apply it only to the very purpose 
 for which it was borrowed; 2 Ld. Raym. 
 915; Story, Bailm. § 232; cannot permit 
 any other person to use it ; 1 Mod. 210 ; Wil- 
 cox v. Hogan, 5 Ind. 546 ; Sarjeant v. Blunt, 
 16 Johns. (N. Y.) 76 ; cannot keep it beyond 
 the time limited ; Wheelock v. Wheelwright, 
 5 Mass. 104 ; and cannot keep it as a pledge 
 for demands otherwise arising against the 
 bailor; 2 Kent 574. See 9 C. & P. 383 ; Cbain- 
 berlin v. Cobb, 32 la. 101. 
 
 A borrower cannot recover for injuries 
 caused by a defect in the thing borrowed, 
 where such defect is hidden and the bailor 
 had no knowledge of it; [1S99] 1 Q. B. D. 
 145. In a bailment for hire it is said to be 
 the duty of the bailor to use due care to find 
 hidden defects; 6 Q. B. Div. 685. The ob- 
 ligation of the lender goes no further than 
 to make known to the borrower a defect in 
 the subject matter of the bailment should he 
 know of the existence of such defect; he is 
 not liable for an injury caused by a defect, 
 even if he might have known of it; 6 II. & 
 N. 329; 8 El. & Bl. 1035; Gagnon v, Dana, 
 69 N. H. 264, 39 Atl. 982, 41 L. R. A. 3S9, 
 76 Am. St. Rep. 170; but if he knows of a 
 defect and by gross negligence omits to in- 
 form the borrower of it, an action may be 
 maintained ; 68 L. J. Q. B. N. S. 147. 
 
 When the property has been lost or de- 
 stroyed without fault on his part, he is not 
 responsible to the owner; Clark v. U. S., 95 
 U. S. 539, 24 L. Ed. 51S ; Sun Printing & 
 Publishing Ass'n v. Moore, 183 U. S. 653, 
 22 Sup. Ct. 240, 46 L. Ed. 366 ; but when he 
 contracts either expressly or by fair implica- 
 tion to return the thing even though it has 
 been lost or destroyed without negligence on 
 the bailee's part, such contract must be en- 
 forced according to its terms; Sturm v. Bo- 
 ker, 150 U. S. 312, 14 Sup. Ct. 99, 37 L. Ed. 
 1093; Sun Printing & Publishing Ass'n v. 
 Moore, 183 U. S. 654, 22 Sup. Ct 240, 46 L. 
 Ed. 300. 
 
 In the third class of bailments under the 
 division here adopted, the benefits derived 
 
 from the contract are reciprocal: it i 
 rantageous to both parties. In the case of a 
 pledge given on a loan of money or to a 
 the payment of a debt, the one party - 
 a credit and the other security by the con- 
 tract And in a bailment for hire, one party 
 acquires the use of the thing bailed and the 
 other the price paid therefor: the advaJ 
 is mutual. So in a bailment for labor and 
 services, as when one person delivers mate- 
 rials to another to be manufactured, the 
 bailee is paid for his services and the owner 
 receives back his property enhanced in val- 
 ue by the process of manufacture. In these 
 and like cases the parties stand upon an 
 equal footing: there is a perfect mutuality 
 between them. And therefore the bailee can 
 only be held responsible for the use of ordi- 
 nary care and common prudence in the pres- 
 ervation of the property bailed; Knapp v. 
 Curtis, 9 Wend. (N. Y.) 60; 5 Bingh. 217; 
 Bakwell v. Talbot, 4 Dana (Ky.) 217; Fulton 
 v. Alexander, 21 Tex. 148 ; Mayor and Coun- 
 cil of Columbus v. Howard, 6 Ga. 213 ; Brown 
 v. Waterman, 10 Cush. (Mass.) 117. A bailee 
 for hire is supposed to take such cart- ol 
 property as a reasonably prudent man would 
 of his own ; Cloyd v. Steiger, 139 111. 41, 28 
 N. E. 987. 
 
 The common law does not recognize the 
 rule of the civil law that the bailor for bire 
 is bound to keep the thing in repair, and in 
 the absence of provision the question as to 
 which party is bound to repair depends 
 largely on custom and usage; Central Trust 
 Co. of New York v. Ry. Co., 50 Fed. 857. 
 
 The depositary or mandatary has a right 
 to the possession as against everybody but 
 the true owner; Story, Bailm. § 93; Pitt v. 
 Albritton, 34 N. C. 74 ; 4 E. D. & Eq. 438; 
 see McMahon v. Sloan, 12 Pa. 229, 51 Am. 
 Dec. 601; but is excused if he delivers it to 
 the person who gave it to him, supposing him 
 the true owner ; Nelson v. Iverson, 17 Ala. 
 216; and may maintain an action against a 
 wrong-doer; 1 B. & Aid. 59; Chamberlain 
 v. West, 37 Minn. 54, 33 N. W. 114. 
 
 It is contended by Story that a mere de- 
 pository has no special property in the de- 
 posit, but a custody only; Story, Bailm. §§ 
 93, 133, citing Norton v. People, S Cow. (N. 
 Y.) 137; Com. v. Morse. 14 Mass. 217; and 
 that (here is a clear distinction between the 
 custody of a thing and the property, wheth- 
 er general or special, in a thing; 1 Term 658. 
 If a depository has a special property in the 
 deport, it must be equally true tbat every 
 other bailee has, and indeed that every per- 
 son who lawfully has the custody of a thing. 
 with the assent of the owner, has a E 
 property in it. Under such circumstances, 
 the distinction between a special property 
 and a mere custody would seem to be almost, 
 if not entirely, evanescent; Story, Bailm. § 
 93 a, citing the leading case of Hartop v. 
 Iloare, 3 Atk. 44, where certain jewels en-
 
 BAILMENT 
 
 316 
 
 BAILMENT 
 
 closed in a sealed paper and sealed bag had 
 been placed by the owner with a jeweller for 
 safe custody, and the latter afterwards 
 broke the seals and pledged the jewels to 
 Hoare for an advance of money. The owner 
 brought suit against the pledgee and the 
 court held, first, that the delivery to the 
 jeweller was a mere naked bailment for the 
 use of the bailor, and the jeweller was a 
 mere depository, having no general or special 
 property in the jewels, and no right to dis- 
 pose of them; secondly, that as the pledge 
 by the jeweller was wrongful, the refusal by 
 the defendant to deliver the jewels to tbe 
 owner was a tortious conversion. In a crit- 
 icism on this view, it has been said that that 
 case does not constitute a sufficient authority 
 for denying the bailee's right to a special 
 property in the bailment; that although the 
 jeweller came into possession of the jewels 
 by right originally, yet when he broke the 
 seals and took them out of the bag, he was 
 possessor mala fide; and that from this it 
 might be inferred that the principle was ad- 
 mitted that, as respects third persons, a de- 
 pository has a special property, as other- 
 wise there is no pertinency in resting the 
 want of it on the circumstances of his break- 
 ing the seals and taking the jewels out of 
 the envelopes, and thereby divesting himself 
 of the special property he originally had, and 
 in fact ceasing to be a bailee ; 16 Am. Jur. 
 2S0. Sir William Jones says: "The general 
 bailee has unquestionably a limited property 
 in the goods entrusted to his care;" Jones, 
 Bailm. 80; and Lord Coke says: "Bailment 
 maketh a privity. If one has goods as bailee 
 where he hath only a possession, and no 
 property, yet he shall have an action for 
 them ;" 2 Bulst. 300. If his possession be 
 violated he may maintain trespass or tro- 
 ver ; Waterman v. Robinson, 5 Mass. 303, 
 where it was held that he had no special 
 property by which he could maintain re- 
 plevin. 
 
 A bailee of an officer in cases of an attach- 
 ment of property has a sufficient property 
 to maintain an action against a stranger for 
 any dispossession or injury to the goods at- 
 tached ; Odiorne v. Colley, 2 N. H. 70, 9 Am. 
 Dec. 39 ; Bender v. Manning, 2 N. H. 289. 
 
 A borrower has no property in the thing 
 borrowed, but may protect his possession by 
 an action against the wrong-doer ; 2 Bhigh. 
 173 ; Ilurd v. West, 7 Cow. (N. Y.) 752. As to 
 the property in case of a pledge, see Pledge. 
 
 In bailments for storage the bailee ac- 
 quires a right to defend tbe property as 
 against third parlies and strangers, and is 
 answerable for loss or injury occasioned 
 through his failure to exercise ordinary 
 care. See Warehouseman; Trover. 
 
 As to the lien of warehousemen and wharf- 
 ingers for their charges on the goods stored 
 with them, see Lien. 
 
 The hire of things for use transfers a spe- 
 
 cial property in them for the use agreed up- 
 on. The price paid is the consideration for 
 the use: so that the hirer becomes the tem- 
 porary proprietor of the things bailed, and 
 has the right to detain them from the gen- 
 eral owner for the term or use stipulated for. 
 It is a contract of letting for hire, analogous 
 to a lease of real estate for a given term. 
 Edw. Bailm. § 325. See Hire. 
 
 In a general sense, the hire of labor and 
 services is the essence of every species of 
 bailment in which a compensation is to be 
 paid for care and attention or labor bestow- 
 ed upon the things bailed. The contracts of 
 warehousemen, carriers, forwarding and com- 
 mission merchants, factors, and other agents 
 who receive goods to deliver, carry, keep, for- 
 ward, or sell, are all of this nature, and in- 
 volve a hiring of services. In a more limited 
 sense, a bailment for labor and services is a 
 contract by which materials are delivered to 
 an artisan, mechanic, or manufacturer to be 
 made into some new form. The title to the 
 property remains in the party delivering the 
 goods, and the workman acquires a lien upon 
 them for services bestowed upon the proper- 
 ty. Cloth delivered to a tailor to be made up 
 into a garment, a gem or plate delivered to a 
 jeweller to be set or engraved, a watch to 
 be repaired, may be taken as illustrations of 
 the contract. The owner, who does not part 
 with his title, may come and take his prop- 
 erty after the work has been done; but the 
 workman has his lien upon it for his reason- 
 able compensation. 
 
 Where property is temporarily in charge 
 of an incidental bailee such as a shopkeeper, 
 restaurant keeper, barber, bathhouse pro- 
 prietor, or the like, as an incident to his gen- 
 eral business, the liability of the bailee does 
 not differ in any respect from that of other 
 bailees for hire; Tombler v. Koelling, 60 
 Ark. 62, 28 S. W. 795, 27 L. R. A. 502, 46 Am. 
 St. Rep. 146 ; Dilberto v. Harris, 95 Ga. 571, 
 23 S. E. 112; Donlin v. McQuade, 61 Mich. 
 275, 28 N. W. 114 ; Bunnell v. Stern, 122 N. 
 Y. 539, 25 N. E. 910, 10 L. R. A. 481, 19 Am. 
 St. Rep. 519; Buttiuan v. Dennett, 9 Misc. 
 462, 30 N. Y. Supp. 247 ; Woodruff v. Paint- 
 er, 150 Pa. 91, 24 Atl. 621, 16 L. R. A. 451, 30 
 Am. St. Rep. 786 ; Goff v. Wanamaker, 25 W. 
 N. C. (Pa.) 35S ; Walpert v. Bohan, 126 Ga. 
 532, 55 S. E. 181, 6 L. R. A. (N. S.) 828, 115 
 Am. St. Rep. 114, 8 Ann. Cas. 89; but see 
 Powers v. O'Neill, 89 Hun 129, 34 N. Y. 
 Supp. 1007; and contributory negligence on 
 the part of the bailor in such cases may re- 
 lieve the bailee from liability ; Powers v. 
 O'Neill, 89 Hun 129, 34 N. Y. Supp. 1007. An 
 innkeeper who conducts a public bath house 
 as an incident to his business is not liable 
 to a guest as an innkeeper, but as a bailee 
 for hire ; Walpert v. Bohan, 126 Ga. 532, 55 
 S. E. 181, 6 L. R. A. (N. S.) 82S, 115 Am. St. 
 Rep. 114, 8 Ann. Cas. 89; Minor v. Staples. 
 71 Me. 316, 36 Am. Rep. 318. It is said that
 
 BAILMENT 
 
 317 
 
 BALANCE 
 
 the implied contract on the part of a shop- 
 keeper (the consideration for which is the 
 chance of profit) that, if customers come to 
 the store, no harm that can reasonably be 
 averted shall overtake them, must be held 
 to extend to the safety of such property as 
 the customers necessarily or habitually ai- 
 ry with them ; Woodruff v. Painter, 150 Pa. 
 91, 24 Atl. 621, 1G L. R. A. 451, 30 Am. St. 
 Rep. 78G; and that the proprietor should 
 provide a safe place for the keeping of such 
 property when the customer while trying on 
 apparel must necessarily lay aside his own; 
 Bunnell v. Stern, 122 N. Y. 539, 25 N. E. 910, 
 10 L. R. A. 481, 19 Am. St. Rep. 519; but 
 see Wamser v. Browning, King & Co., 187 
 N. Y. ST. 70 N. E. 861, 10 L. R. A. (N. S.) 314, 
 where the customer knowing the clerks to be 
 busy, proceeded to wait on himself, knowing 
 there was no one but himself to watch the 
 garments he laid aside. 
 
 When the business of the bailee implies 
 skill, a want of such skill as is customary in 
 his calling will render him liable as for gross 
 negligence ; Western Union Tel. Co. v. Blanch- 
 ard, 68 Ga. 299, 45 Am. Rep. 480; Stanton 
 v. Bell, 9 N. C. 145, 11 Am. Dec. 744; even 
 though the bailment is for the sole benefit of 
 the bailor and the bailee receives no compen- 
 sation ; Conner v. Winton, 8 Ind. 315, 65 Am. 
 Dec. 761. 
 
 As to the duties and liabilities of common 
 carriers and innkeepers, see those titles. As 
 to warehouse receipts, see that title. See 
 Deposit; Mandate; Hire; Agistor; Sale; 
 Rolling Stock ; Lien. 
 
 BAILOR. He who bails a thing to an- 
 other. 
 
 The bailor must act with good faith to- 
 wards the bailee; Story, Bailm. § 74; per- 
 mit him to enjoy the thing bailed according 
 to contract ; and in some bailments, as hir- 
 ing, warrant the title and possession of- the 
 thing hired, and, probably, keep it in suit- 
 able order and repair for the purpose of the 
 bailment; Story, Bailm. § 3S8. 
 
 BAIRN'S PART. See Legitim. 
 
 BAITING. To bait is to attack with vio- 
 lence ; to provoke and harass. 2 A. & E. 
 Encyc. 63 ; L. R. 9 Q. B. 380. 
 
 BAL/ENA. A large fish, called by Black- 
 stone a whale. Of this the king had the 
 head and the queen the tail as a perquisite 
 whenever one was taken on the coast of 
 England. Prynne, Ann. Reg. 127 ; 1 Bla. 
 Com. 221. 
 
 BALANCE. The amount which remains 
 due by one of two persons, who have been 
 dealing together, to the other, after the set- 
 tlement of their accounts. 
 
 In the case of mutual debts, the balance 
 only can be recovered by the assignee of an 
 insolvent or the executor of a deceased per- 
 son. But this mutuality must have existed 
 
 at the time of the assignment by the insolv- 
 ent, or at the death of the testator. 
 
 It is often used in the sense of residue or 
 remainder; Lopez v. Lopez, 23 S. 0. 
 Skinner v. Lamb, L'5 N. C. 155. 
 
 The term general balance is sometimes 
 used to signify the difference which is due 
 to a party claiming a lien on goods in his 
 hands for work or labor done, or money ex- 
 pended in relation to those and other goods 
 of the debtor; 3 B. & P. 4K 
 McWilliams v. Allan, 45 Mo. 573. 
 
 The phrase "net balance" as applied to the 
 proceeds of the sale of stock means in 
 mercial usage the balance of the proceeds 
 after deducting the expenses incident to the 
 sale; Evans v. Wain, 71 Pa. 74. 
 
 BALANCE OF POWER. In International 
 Law. A distribution and an opposition of 
 forces, forming one system, so that no state 
 shall be in a position, either alone or united 
 with others, to impose its will on any other 
 state or interfere with its independence. Or- 
 tolan. 
 
 BALANCE SHEET. A statement made by 
 merchants and others to show the true state 
 of a particular business. A balance sheet 
 should exhibit all the balances of debits and 
 credits, also the value of merchandise, and 
 the result of the whole. 
 
 BALD 10. In Spanish Law. Vacant land 
 having no particular owner, and usually 
 abandoned to the public for the purposes of 
 pasture. 
 
 BALE. A quantity or pack of goods or 
 merchandise, wrapped or packed in cloth and 
 tightly corded. Wharton. 
 
 A bale of cotton means a bale compressed 
 so as to occupy less space than if in a 
 2 Car. & P. 525. 
 
 BALI US. In Civil Law. A teacher: one 
 who has the care of youth; a tutor ; a guard- 
 ian. Du Cange, Bajultis: Spelman, Gloss. 
 
 BALI V A (spelled also Balliva). Equiva- 
 lent to Balivatus. Bolivia, a bailiwick: the 
 jurisdiction of a sheriff; the whole oD 
 within which the trust of the sheriff was to 
 be executed. Cowell. Occurring in t : 
 turn of the sheriff, non est inventus in balliva 
 mea (he has not been found in my baili- 
 wick) ; afterwards abbreviated to the simple 
 non est inventus; 3 Bla. Com. 2S3. 
 
 BALLAST. That which is used for trim- 
 ming a ship to bring it down to a draft of 
 water proper and safe for sailing. Great 
 Western Ins. Co. v. Thwing. 13 Wall (U. S. I 
 074, 20 L. Ed. 607. 
 
 BALLASTAGE. A toll paid for the privi- 
 lege of taking up ballast from the bottom 
 of the port. This arises from the property 
 in the soil : 2 Chitty, Comm. Law 16. 
 
 v 
 
 BALLIUM. A fortress or bulwark; also 
 bail. Cunningham. 
 
 v
 
 BALLIVO AMOVEXDO 
 
 318 
 
 BANCUS REGIS 
 
 BALLIVO AMOVENDO (L. Lat. for re- 
 moving a bailiff). A writ to remove a bailiff 
 out of his office. 
 
 BALLOT. Originally a ball used in vot- 
 ing ; hence, a piece of paper, or other thing 
 used for the same purpose; whole amount of 
 votes cast. 
 
 The act of voting by balls or tickets. 
 Webster. 
 
 A ballot or ticket is a single piece of paper 
 containing the names of the candidates and 
 the offices for which they are running. Peo- 
 ple v. Holden, 28 Cal. 136. See Election. 
 
 BAN. In Old English and Civil Law. A 
 
 proclamation; a public notice; the announce- 
 ment of an intended marriage. Cowell. An 
 excommunication; a curse, publicly pro- 
 nounced. A proclamation of silence made by 
 a crier in court before the meeting of cham- 
 pions in combat. Cowell. A statute, edict, 
 or command ; a fine, or penalty. 
 
 An open field ; the outskirts of a village ; 
 a territory endowed with certain privileges. 
 
 A summons; as arriere ban. Spelman, 
 Gloss. 
 
 In French Law. The right of announcing 
 the time of moving, reaping, and gathering 
 the vintage, exercised by certain seignorial 
 lords. Guyot, Rep. Univ. 
 
 BANALITY. In Canadian Law. The right 
 by virtue of which a lord subjects his vassals 
 to grind at his mill, bake at his oven, etc. 
 Used also of the region within which this 
 right applied. Guyot, R6p. Univ. It pre- 
 vents the erection of a mill within the seign- 
 orial limits; 1 Low. C. 31 ; whether steam 
 or water; 3 Low. C. 1. 
 
 BANC (Fr. bench). The seat of judg- 
 ment; as, banc le roy, the king's bench; 
 banc le common pl&as, the bench of common 
 pleas. 
 
 The meeting of all the judges, or such as 
 may form a quorum, as distinguished from 
 sittings at Nisi Prius : as, "the court sit in 
 banc." Cowell. 
 
 BANCI NARRATORES. Advocates; coun- 
 tors ; Serjeants. Applied to advocates in the 
 common pleas courts. 1 Bla. Com. 24. 
 
 BANCUS (Lat). A bench; the seat or 
 bench of justice; a stall or table on which 
 goods are exposed for sale. Often used for 
 the court itself. 
 
 A full bench, when all the judges are 
 present. Cowell; Spelman, Gloss. 
 
 The English court of common pleas was 
 formerly called Bancus. Viner, Abr. Courts 
 (M). See Bench ; Common Bench. 
 
 BANCUS REGIN/E (Lat.). The Queen's 
 Bench. 
 
 BANCUS REGIS (Lat). The King's 
 Bench ; the supreme tribunal of the king 
 after parliament. 3 Bla. Com. 41. 
 
 In banco regis, in or before the court of 
 king's bench. 
 
 The king has several times sat in his own 
 person on the bench in this court, and all 
 the proceedings are said to be coram rege 
 ipso (before the king himself). But James 
 I. was not allowed to deliver an opinion 
 although sitting in banco regis. Viner, Abr. 
 Courts (H L) ; 3 Bla. Com. 41; Co. Litt 
 71 C. 
 
 BANDIT. A man outlawed; one under 
 ban. 
 
 BANE. A malefactor. Bracton, L 1, t 8, 
 c. 1. 
 
 BANISHMENT. A punishment inflicted 
 upon criminals, by compelling them to quit 
 a city, place, or country for a specified period 
 of time, or for life. See Cooper v. Telfair, 
 4 Dall. (U. S.) 14, 1 L. Ed. 721. It is syn- 
 onymous with exilement and imports a com- 
 pulsory loss of one's country. 3 P. Wms. 38. 
 
 BANK (Anglicized form of bancus, a 
 bench). The bench of justice. 
 
 Sittings in bank (or banc). An official 
 meeting of four of the judges of a common- 
 law court Wharton, Lex. 
 
 Used of a court sitting for the determination of 
 law points, as distinguished from nisi prius sittings 
 to determine facts. 3 Bla. Com. 28, n. 
 
 Bank le Roy. The king's bench. Finch, 
 198. 
 
 The bank of the sea is the utmost border 
 of dry land. Callis, Sewers 73. 
 
 In Commercial Law. A place for the de- 
 posit of money; Oulton v. Institution, 17 
 Wall. (U. S.) 118, 21 L. Ed. 618. See Curtis 
 v. Leavitt, 15 N. Y. 166; Pratt v. Short, 79 
 N. Y. 440, 35 Am. Rep. 531; People v. R. Co., 
 12 Mich. 389, 86 Am. Dec. 64. 
 
 The business of banking, as defined by law 
 and custom, consists in the issue of notes 
 payable on demand intended to circulate as 
 money when the banks are banks of issue; 
 in receiving deposits payable on demand; in 
 discounting commercial paper ; making loans 
 of money on collateral security ; buying and 
 selling bills of exchange; negotiating loans, 
 and dealing in negotiable securities issued 
 by the government, state and national, and 
 municipal and other corporations. Mercan- 
 tile Bank v. New York, 121 U. S. 138, 156, 7 
 Sup. Ct 826, 30 L. Ed. 895. 
 
 Banks are said to be of three kinds, viz.; 
 of deposit, of discount, and of circulation, 
 they generally exercise all these functions; 
 Oulton v. Sav. Soc, 17 Wall. (U. S.) 118, 21 
 L. Ed. 618. 
 
 It was the custom of the early money-changers to 
 transact their business in public places, at the 
 doors of churches, at markets, and, among the Jews, 
 in the temple (Mark xi. 15). They used tables or 
 benches for their convenience in counting and as- 
 sorting their coins. The table so used was called 
 banche, and the traders themselves, bankers or 
 benchers. In times still more ancient, their benches 
 was called cambii, and they themselves were called 
 cambiators. Du Cange, Cambii. 
 
 The issue of paper in the similitude of 
 bank notes and intended to circulate is an
 
 BANK 
 
 319 
 
 BANK NOTE 
 
 act of banking; People v. R. Co., 12 Mich. 
 389, 86 Am. Dec. 64; so is keeping an office 
 to discount notes; People v. Bartow, 6 Cow. 
 (N. Y.) 290; but not if the party only lends 
 his own money ; People v. Brewster, 4 Wend. 
 (N. Y.) 498; nor is merely receiving money 
 on deposit; State v. Ins. Co., 14 Ohio 6; 
 contra, Com. v. Sponsler, 16 Co. Ct (Pa.) 
 116. 
 
 A corporation loaning its own money on 
 mortgages is not a banking corporation; Ore- 
 gon & W. Trust Inv. Co. v. Rathburn, 5 Sawy. 
 32, Fed. Cas. No. 10,555; nor a firm which 
 does not lend money (except on landed se- 
 curity), discount paper or buy or sell 
 drafts; Scott v. Burnham, 56 111. App. 30. 
 An unincorporated bank owned by a private 
 individual is not a legal entity, though it is 
 conducted by a so-called president and cash- 
 ier; Longfellow v. Barnard, 59 Neb. 455, 81 
 N. W. 307; to the same effect, In re Purl's 
 Estate, 147 Mo. App. 105, 125 S. W. 849. 
 
 See National Banks; Bank Note; Dis- 
 count ; Guarantee Fund ; Check ; Cashier ; 
 Director ; Deposit ; Officer ; Savings Bank. 
 
 BANK ACCOUNT. A fund which mer- 
 chants, traders, and others have deposited 
 into the common cash of some bank, to be 
 drawn out by checks from time to time as 
 the owner or depositor may require. 
 
 BANK CHARGES. This term in an action 
 on a bill of exchange is equivalent to ex- 
 penses of noting and may be especially en- 
 dorsed as a liquidated demand; [1893] 1 Q. 
 B. 318. 
 
 BANK CREDIT. A credit with a bank by 
 which, on proper security given to the bank, 
 a person receives liberty to draw to a cer- 
 tain extent agreed upon. In Scotland also 
 called a cash account. Such credits were 
 long a distinctive feature of Scotch banking. 
 Cent. Diet. 
 
 BANK NOTE. A promissory note, payable 
 on demand to the bearer, made and issued 
 by a person or persons acting as bankers and 
 authorized by law to issue such notes. The 
 definition is confined to notes issued by in- 
 corporated banks in 2 Dan. Neg. Inst. § 1664. 
 See 2 Pars. Bills & N. 88. Bank bills and 
 bank notes are equivalent terms, even in 
 criminal cases ; Eastman v. Com., 4 Gray 
 (Mass.) 416. The power thus to issue is 
 not inherent or essential in banking business, 
 and is not necessarily implied from the con- 
 ference of a general power to do banking 
 business. It must be distinctly, and in terms 
 conferred in the incorporating act, or it will 
 not be enjoyed. Morse, Banking, c. viii.; 11 
 Op. Att-Gen. 334. 
 
 The notes of national banks have supplant- 
 ed those of state banks at the present time. 
 
 For many purposes they are not looked 
 upon as common promissory notes, and as 
 mere evidences of debt. In the ordinary 
 transactions of business they are recognized 
 
 by general consent as cash. The business of 
 issuing them being regulated by law, a cer- 
 tain credit attaches to them, that renders 
 them a convenient substitute for money ; 
 Smith v. Strong, 2 Hill (N. Y.) 241. 
 may be reissued after payment ; Chalin. Bills 
 of Exch. 267. 
 
 The practice is, therefore, to use them as 
 money ; and they are a good tender, unless 
 objected to; Snow v. Perry, 9 Pick. (Mass.) 
 542; Jefferson County Bank v. Chapman, 19 
 Johns. (N. Y.) 322; Felter v. Weybright, 8 
 Ohio 169; Hoyt v. Byrnes, 11 Me. 475; Ball 
 v. Stanley, 5 Yerg. (Tenn.) 199, 26 Am. Dec. 
 263; Seawell v. Henry, 6 Ala. 226; 5 Dowl. 
 & R. 289. They pass under the word "mon- 
 ey" in a will, and, generally speaking, they 
 are treated as cash ; Mechanics' & Farmers' 
 Bank v. Smith, 19 Johns. (N. Y.) 115; but 
 see Armsworth v. Scotten, 29 Ind. 495, as to 
 their receipt by a sheriff in payment of an 
 execution. When payment is made in bank 
 notes, they are treated as cash and receipts 
 are given as for cash; Morris v. Edwards. 1 
 Ohio 189; Edwards v. Morris, 1 Ohio 524; 
 Morrill v. Brown, 15 Pick. (Mass.) 177; 
 Bradley v. Hunt, 5 G. & J. (Md.) 54, 23 Am. 
 Dec. 597; Governor v. Carter, 10 N. C. 328, 
 14 Am. Dec. 588; Scott v. Com., 5 J. J. Marsh. 
 (Ky.) 643; 1 Sch. & L. 318, 319; Tancil v. 
 Seaton, 28 Gratt. (Va.) 605, 26 Am. Rep. 380; 
 1 Burr. 452. It has been held that the pay- 
 ment of a debt in bank notes discharges the 
 debt; Bayard v. Shunk, 1 W. & S. (Pa.) 92, 
 37 Am. Dec. 441 ; Pearson v. Gayle, 11 Ala. 
 280; 2 Dan. Neg. Inst. § 1676; Edmunds v. 
 Digges, 1 Gratt. (Va.) 359, 42 Am. Dec. 561; 
 but not when the payer knew the bank was 
 insolvent. The weight of authority is 
 against the doctrine of the extinguishment of 
 a debt by the delivery of bank notes which 
 are not paid, when duly presented, in reason- 
 able time. But it is undoubtedly the duty of 
 the person receiving them to present them 
 for payment as soon as possible ; Gilman v. 
 Peck, 11 Vt. 516, 34 Am. Dec. 702 ; Fogg v. 
 Sawyer, 9 N. H. 305 ; President, etc., of 
 Bank of U. S. v. Bank, 10 Wheat. (U. S.) 
 333, 6 D. Ed. 334; Young v. Adams. 6 Mass. 
 182; Houghton v. Adams, 18 Barb. (N. Y.) 
 545; Westfall, Stewart & Co. v. Braley. 10 
 Ohio St. 188, 75 Am. Dec. 509; Frontier 
 Bank v. Morse, 22 Me. 88, 38 Am. Dec. 284 ; 
 Townsends v. Bank, 7 Wis. IS.". ; 6 B. & C. 
 373. 
 
 Bank notes are governed by the rules ap- 
 plicable to other negotiable paper. Tin y 
 are assignable by delivery; Rep. t. Hard. 
 53; President, etc., of Michigan State Bank 
 v. Bastings, 1 Dougl. (Mich.) 236, 41 Am. 
 Dec. 549. The holder of a note is entitled to 
 payment, and cannot be affected by the fraud 
 of a former holder, unless he is proved privy 
 to the fraud; 1 Burr. 452; Sylvester v. Gi- 
 rard, 4 Rawde (Va.) 1S5; Worcester County 
 Bank v. Bank, 10 Cush. (Mass.) 4SS. 57 Am. 
 Dec, 120; 2 Dan. Neg. Instr. § 16S0; Olm-
 
 BANK NOTE 
 
 320 
 
 BANKRUPT 
 
 stead v. Bank, 32 Conn. 278, 85 Am. Dec. 260. 
 The bona fide holder who has received them 
 for value is protected in their possession 
 even against a real owner from whom they 
 have been stolen. Payment in forged bank 
 notefc is a nullity; Piudall's Ex'rs v. Bank, 
 7 Leigh (Va.) 617; Hargrave v. Dusenberry, 
 9 x. c. 326; Ramsdale v. Horton, 3 Pa. 330; 
 Bank of New Haven v. Smith, 5 Conn. 
 71, 13 Am. Dec. 37; but the taker of such 
 must give prompt notice that they are coun- 
 terfeit, and offer to return them; Simms v. 
 . 11 111. 137. But where the bank itself 
 os notes purporting to be its own, and 
 ire forged, it is otherwise; President, 
 etc.' of Bank of U. S. v. Bank, 10 Wheat. (U. 
 S.) 333. 6 L. Ed. 334. See 6 B. & C. 373. 
 If a note be cut in two for transmission by 
 mail, and one half be lost, the bona fide hold- 
 er of the other half can recover the whole 
 amount of the note; Hinsdale v. Bank, 6 
 Wond. (N. T.) 37S; Bank of Virginia v. 
 Ward, 6 Munf. (Va.) 166; Farmers' Bank of 
 Virginia v. Reynolds, 4 Rand. (Va.) 186; 
 Dan. Neg. Inst. § 1696. 
 
 At common law, as ehoses in action, bank 
 notes could not be taken in execution ; 9 Cro. 
 Bliz. 746. The statute laws of the several 
 states, or custom, have modified the common 
 law in this respect, and in many of them 
 they can be taken on execution ; Spencer v. 
 Blaisdell, 4 N. H. 198, 17 Am. Dec. 412 ; Mor- 
 rill v. Brown, 15 Pick. (Mass.) 173; Lovejoy 
 v. Lee, 35 Vt. 430. 
 
 BANK STOCK. The capital of a bank. In 
 England the sum is applied chiefly to the 
 stock of the Bank of England. 
 
 BANKABLE. Bank notes, checks, and oth- 
 er securities for money received as cash by 
 banks in the place where the word is used. 
 
 In the United States, the notes issued by the 
 national banks have taken the place of those for- 
 merly issued by banks incorporated under state 
 laws. The circulation of these notes being secured 
 by United States bonds deposited with the treas- 
 urer of the United States, they are received as 
 bankable money without regard to the locality of 
 the bank issuing them. See U. S. Rev. Stat. § 
 5133; Veazie Bank v. Fenno, 8 Wall. (U. S.) 533, 19 
 L. Ed. 482. 
 
 BANKER'S NOTE. A promissory note 
 given by a private banker or banking insti- 
 tution, not incorporate, but resembling a 
 bank note in all other respects. 6 Mod. 29 ; 
 3 Chit. Comm. Law 590. 
 
 BANKRUPT. Originally and strictly, a 
 trader who secretes himself or does certain 
 other acts tending to defraud his creditors. 
 2 Bla. Com. 471. 
 
 A broken-up or ruined trader. Everett v. 
 Stone, 3 St. 453, Fed. Cas. No. 4,577. 
 
 By modern usage, an insolvent person. 
 
 A person who has done or suffered to be 
 done some act which is by law declared to 
 be an act of bankruptcy. 
 
 The word is from the Italian banca rota, 
 the custom beiiw: in the middle ages to break 
 the benches or counters of merchants who 
 
 failed to pay their debts. Voltaire, Diet. 
 Phil. voc. sig. Banqueroute; Saint Bennet 
 Diet. Faillete. 
 
 In the English law there were two char- 
 acteristics which distinguished bankrupts 
 from insolvents : the former must have been 
 a trader and the object of the proceedings 
 against, not by, him. Originally the bank- 
 rupt was considered a criminal; 2 Bla. 
 Com. 471 ; and the proceedings were only 
 against fraudulent traders ; but this distinc- 
 tion has been abolished by the later English 
 bankruptcy acts, although in some respect* 
 traders and non-traders continued to be put 
 on a different footing; Mozl. & W. Law Diet. 
 As used in American law, the distinction 
 between a bankrupt and an insolvent is not 
 generally regarded. Act of Congress of 
 March 2, 1867, and Act of June 22, 1874 
 (both now repealed). On the continent of 
 Europe the distinction between bankrupt and 
 insolvent still exists; Holtz. Encyc. voc. sig. 
 Bankerott. Under the constitution of the 
 United States the Federal government has 
 power to pass a uniform bankrupt law. The 
 meaning of bankrupt as used in the consti- 
 tution was not the technical early English 
 one, but was commensurate with insolvent; 
 Kunzler v. Kohaus, 5 Hill (N. Y.) 317. In 
 the first bankrupt law of Apr. 4, 1800, re- 
 pealed Dec. 19, 1803, the word bankrupt was 
 used in the old English sense. The distinc- 
 tion, however, became less observed; Mar- 
 shall, C. J., in Sturges v. Crowninshield, 4 
 Wheat. (U. S.) 122, 4 L. Ed. 529; 2 Kent 
 390; and was finally abandoned and broken 
 down by the act of Aug. 19, 1841, which was 
 a union of both species of laws, including "all 
 persons whatsoever." The constitutionality 
 of the voluntary part of the act was much 
 contested, but was fully sustained; Kunzler 
 v. Kohaus, 5 Hill (N. Y.) 317; McCormick 
 v. Pickering, 4 N. Y. 283. (For the reasons 
 assigned contra, see Sackett v. Andross, 5 
 Hill [N. Y.] 327.) 
 
 The only substantial difference between 
 a strictly bankrupt law and an insolvent law 
 lies in the circumstance that the former 
 affords relief upon the application of the 
 creditor, and the latter upon the application 
 of the debtor. In the general character of 
 the remedy there is no difference, however 
 much the modes by which the remedy may 
 be administered may vary. But even in 
 the respect named there is no difference in 
 this instance. The act of congress (1867) 
 was both a bankrupt act and an insolvent 
 act by definition, for it afforded relief upon 
 the application of either the debtor or the 
 creditor, under the heads of voluntary and 
 involuntary bankruptcy; Martin v. Berry, 37 
 Cal. 222. 
 
 A state has authority to pass a bankrupt 
 law, provided such law does not impair the 
 obligation of contracts, and provided there 
 be no act of congress in force to establish a 
 uniform system of bankruptcy, conflicting
 
 BANKRUPT 
 
 321 
 
 BANKRUPT LAWS 
 
 with such law; McMillan v. McNeill, 4 
 Wheat. (U. S.) 209, 4 L. Ed. 552; Odgen v. 
 Saunders, 12 Wheat. (U. S.) 213, 6 L. Ed. 
 606. 
 
 A state bankrupt law so far as it attempts 
 to discharge the contract is unconstitutional ; 
 McMillan v. McNeill, 4 Wheat. (U. S.) 209, 
 
 4 L. Ed. 552; Sturges v. Crowninshield, 4 
 Wheat. (U. S.) 122, 4 L. Ed. 529; Farmers' 
 & M. Bank v. Smith, 6 Wheat. (U. S.) 131, 
 
 5 L. Ed. 224 ; whether passed before or after 
 the debt was created; McMillan v. McNeill, 
 4 Wheat. (U. S.) 209, 4 L. Ed. 552; or where 
 the suit was in a state of which both parties 
 were citizens, and in which they resided 
 until suit, and where the contract was made; 
 Fanners' & M. Bank v. Smith, Wheat. (U. 
 S.) 131, 5 L. Ed. 221: but a bankrupt or 
 insolvent law of a state which discbarges 
 the person of the debtor and his further 
 acquisitions of property is valid, though a 
 discharge under it cannot be pleaded in bar 
 of an action by a citizen of another state 
 in the courts of the United States or of any 
 other state; Odgen v. Saunders, 12 Wheat. 
 (U. S.) 213, 6 L. Ed. 606. Every state law is 
 a bankrupt law in substance and fact, that 
 causes to be distributed by a tribunal the 
 property of a debtor among his creditors; 
 and it is especially such if it causes the 
 debtor to be discharged from his contracts, 
 so far as it can do so; Nelson v. Carland, 1 
 How. (U. S.) 265, and note, 11 L. Ed. 126. 
 When the United States statute is also an 
 insolvent law acting upon the same persons 
 and cases as the state insolvent law, the 
 latter is suspended when the United States 
 statute goes into operation ; Nelson v. Car- 
 land, 1 How. (U. S.) 265, 11 L. Ed. 126; Ex 
 parte Eames, 2 Sto. 326, Fed. Cas. No. 4,237, 
 but the state law may be still in force as to 
 a class of insolvents not included in the Fed- 
 eral act; Herron Co. v. Superior Court, 136 
 Cal. 279, 68 Pac. 814, 89 Am. St. Rep. 124. 
 If the state court has acquired jurisdiction 
 under a state statute, and is actually' set- 
 tlihg the debts and distributing the assets of 
 the insolvent before or at the date at which 
 the Federal law takes effect, it may proceed 
 to a final conclusion of the .case; Judd v. 
 Ives, 4 Mete. (Mass.) 401; Martin v. Berry. 
 37 Cal. 208. A voluntary assignment made 
 by the debtor within four months of being 
 adjudged a bankrupt is void although it was 
 made in conformity to the laws of his state; 
 In re Gutwillig, 90 Fed. 475. See Insol- 
 vency. 
 
 BANKRUPT LAWS. 
 
 Bankruptcy laws, as now understood, were not 
 known to the common law. Certain acts in Eng- 
 land, beginning with the statute 34 & 35 Henry VIII. 
 c. 4, were first mainly directed against the crim- 
 inal frauds of traders. The bankrupt was treated as 
 a criminal offender ; and, formerly, the not duly 
 surrendering his property under a commission of 
 bankruptcy, when summoned, was a capital felony. 
 The bankrupt laws are now, and have for some time 
 past been, regarded as a connected system of civil 
 legislation, having the double object of enforcing a 
 
 Bouv.— 21 
 
 complete discovery and equitable distribution of the 
 property of an insolvent trader, and of conferring 
 on the trader the reciprocal advantage of security 
 of person and a discharge from all claims of bla 
 creditors. 
 
 By the Act 6 Geo. IV. c. 16, the former statutes 
 were consolidated and many important alterations 
 introduced. All business under the earlier statutes 
 was entrusted to commissioners appointed by the 
 Lord Chancellor for each case. A subsequent stat- 
 ute, 1 & 2 Will. IV. c. 56, changed the mode of pro- 
 ceeding by constituting a Court of Bankruptcy, and 
 removing the Jurisdiction of bankrupt cases In the 
 first instance from the Court of Chancery to that 
 of Bankruptcy, reserving only an appeal from that 
 court to the lord chancellor as to matters of law and 
 equity and questions of evidence; and other im- 
 portant alterations were introduced. This was 
 1 by the 5 & 6 Will. IV. c. 29. In 1869, bank- 
 ruptcies in the counties were transferred to the 
 county courts and in London to the London Court 
 of Bankruptcy. Its jurisdiction was transferred in 
 1883 to the King's Bench Division of the High Court 
 of Justice. The bankrupt laws were codified in 
 1883 and in 1890. 
 
 Bankrupt laws were passed in the United 
 States in 1S00, 1841, and 1S67, but they were 
 repealed after a brief existence. 
 
 The act of 1867 was repealed by act of 
 June 7, 1878 (taking effect September 1, 
 187S) but not to affect pending cases. 
 
 A bankruptcy act was passed July 1, 1898. 
 It extends not only to corporations ordinarily 
 speaking, but to limited or other partnership 
 associations whose capital alone is respon- 
 sible for the debts of the association. 
 
 The act is not unconstitutional, though it 
 provides that others than traders may lie ad- 
 judged bankrupts on voluntary petition, 
 though it allows the exemptions of the local 
 laws, and though it provides that the dis- 
 charge of the debtor under proceedings at his 
 domicil shall be valid throughout the United 
 States; Hanover Nat. Bank v. Mo: -• >' • 
 U. S. 181, 22 Sup. Ct 857, 46 L. Ed 1113. 
 
 A person shall be deemed insolvent with- 
 in the act "whenever the aggregate of his 
 property, exclusive of any property which 
 he may have conveyed, transferred, conceal- 
 ed, or removed, or permitted to be cornea led 
 or removed, with intent to defraud, hinder, 
 or delay his creditors, shall not, at a fair 
 valuation, be sufficient in amount to pay his 
 debts." Wage-earner shall include any per- 
 son who works for wages, salary, or hire, 
 at a rate of compensation not exceeding one 
 thousand five hundred dollars per year. 
 
 The courts of bankruptcy are the district 
 courts of the United States and of the ter- 
 ritories, the supreme court of the District 
 of Columbia, and the United States courts 
 of the Indian Territory and of Alaska. They 
 are invested with such jurisdiction in law 
 and at equity as will enable them to exercise 
 original jurisdiction in bankruptcy proceed- 
 ings, in vacation in chambers and during 
 their respective terms ; to adjudge persons 
 bankrupt who have had their principal place 
 of business, resided, or had their domicil for 
 the preceding six months, or the greater 
 portion thereof, within their respective ter- 
 ritorial jurisdictions, or who do not have
 
 BANKRUPT LAWS 
 
 322 
 
 BANKRUPT LAWS 
 
 their principal place of business, reside, or 
 have their domicil within the United states, 
 but have property within the jurisdiction of 
 the court or have heen adjudged bankrupts 
 by competent courts of jurisdiction without 
 the United States, and have property within 
 their jurisdictions. 
 
 Acts of bankruptcy by a person shall con- 
 sist of his having (1) conveyed, transferred, 
 concealed, or removed, or permitted to be 
 C( lied or removed, any part of his prop- 
 city with intent to hinder, delay, or defraud 
 editors, or any of them; or (2) trans- 
 ferred, while insolvent, any portion of his 
 property to one or more of his creditors with 
 intent to prefer such creditors over his other 
 creditors: or (3) suffered or permitted, 
 while insolvent, any creditor to obtain a pref- 
 erence through legal proceedings, and not 
 ha vinir at least five days before a sale or 
 final disposition of any property affected by 
 such preference, vacated or discharged such 
 preference; or (4) made a general assign- 
 ment for the benefit of his creditors; or (5) 
 admitted in writing his inability to pay his 
 del its and his willingness to lie adjudged a 
 bankrupt on that ground. See Preference. 
 
 A petition may be filed against a person 
 who is insolvent and who has committed 
 an act of bankruptcy within four months. 
 Such time shall not expire until four months 
 after (1) the date of the recording of the 
 transfer, when the act consists in having 
 made a transfer of any of his property with 
 intent to hinder, delay, or defraud his cred- 
 itors, or for the purpose of giving a prefer- 
 ence as in the act provided, or a general as- 
 signment for the benefit of his creditors, if 
 by law such recording is required or permit- 
 ted; (2) or, if it is not, from the date when 
 the beneficiary takes notorious, exclusive, or 
 continuous possession of the property, unless 
 the petitioning creditor have received actual 
 notice of such transfer or assignment. 
 
 It would he a defence to prove that the 
 party was not insolvent as defined in the 
 act at the time the petition was filed against 
 him, and upon such proof the proceedings 
 shall be dismissed. The burden of proof is 
 on the alleged bankrupt. He must appear in 
 court with books and accounts, and submit 
 to an examination in respect to his insol- 
 vency. 
 
 The petitioner in involuntary proceedings 
 is required to give bond with two good and 
 sufficient sureties who shall reside in the 
 jurisdiction to be approved by the court, in 
 such sums as the court shall direct, condi- 
 tioned on the payment of damages and costs 
 in case the petition is dismissed. If the pe- 
 tition is dismissed the respondent is allowed 
 all costs, counsel fees, expenses, and dam- 
 ages, to be fixed by the court and covered by 
 the bond. 
 
 "Any person who owes debts, except a cor- 
 poration, shall be entitled to the benefits of 
 this act as a voluntary bankrupt" 
 
 "Any natural person, except a wage-earner 
 or a person engaged chiefly in farming or 
 the tillage of the soil, any unincorporated 
 company and any corporation engaged prin- 
 cipally in manufacturing, trading, printing, 
 publishing, or mercantile pursuits, owing 
 debts to the amount of one thousand dollars 
 or over, may be adjudged an involuntary 
 bankrupt upon default or an impartial trial, 
 and shall be subject to the provisions and 
 entitled to the benefits of this act. Private 
 bankers, but not national banks or banks 
 incorporated under state or territorial laws, 
 may be adjudged involuntary bankrupts." 
 Mining corporations were added by the act 
 of Feb. 5, 1903. 
 
 A partnership during its continuance or 
 after its dissolution and before its final set- 
 tlement may be adjudged a bankrupt. The 
 court which has jurisdiction of one of the 
 partners may have jurisdiction of all the 
 partnership assets, but separate accounts of 
 the partnership and individual property 
 should he kept and expenses divided between 
 them as the court shall determine. The net 
 proceeds of partnership property goes to 
 partnership debts, and those of the individ- 
 ual estates to individual debts. Any surplus 
 in either case to the other class of debts. 
 Proof of claims of partnership debts may be 
 allowed against individual estates and vice 
 versa, and the court may marshal the assets 
 of both estates so as to prevent preferences 
 and secure an equitable distribution. 
 
 If one or more but not all of the partners 
 are adjudged bankrupt the partnership prop- 
 erty shall not be administered in bankruptcy 
 unless by consent of the partners not ad- 
 judged bankrupts. The latter shall settle 
 the partnership business as expeditiously as 
 possible and account for the interest of the 
 bankrupt partners. Any exemptions in force 
 when the petition was filed in the state 
 where the bankrupt had his domicil for six 
 months or the greater portion thereof imme- 
 diately preceding the filing of the petition 
 are preserved. 
 
 Provision is made for a composition with 
 creditors, but not until the bankrupt has 
 been examined in open court or at a meet- 
 ing of creditors and has filed his schedule 
 of assets and list of creditors. If the ap- 
 plication therefor has been accepted in writ- 
 ing by a majority in number and amount of 
 proved creditors, and the consideration there- 
 of and money to pay all prior debts and costs 
 have been deposited subject to the order of 
 the court, it may be presented to the court, 
 which, after notice and a hearing, may eon- 
 firm it. 
 
 A discharge may be applied for, but not 
 until one month after, and within the en- 
 suing twelve months from the adjudication 
 of bankruptcy (with a further extension, by 
 order of court for cause, of six months). No 
 discharge shall be granted if the bankrupt 
 has committed an offence punishable by im-
 
 BANKRUPT LAWS 
 
 323 
 
 BANKRUPT LAWS 
 
 prisonment under the act; or, with fraudu- 
 lent intent to conceal his condition, etc., has 
 destroyed, concealed, or failed to keep prop- 
 er books of account. 
 
 A discharge releases all debts except taxes 
 due the United States or the state, county, 
 district, or municipality in which the bank- 
 rupt resides; judgments on claims for fraud 
 or for obtaining property by false pretences 
 and wilful injuries to the person or property 
 of another; and debts not scheduled (unless 
 the creditor was unknown to the bankrupt or 
 the creditor had knowledge of the proceed- 
 ings) ; or created by fraud, embezzlement, 
 etc., as an officer or trustee; does not release 
 a judgment obtained by a husband against 
 the bankrupt for criminal conversation with 
 his wife; Tinker v. Colwell, 193 U. S. 47."., 24 
 Sup. Ct. 505, 48 L. Ed. 754; nor a contract 
 made by a divorced bankrupt by which he 
 agreed to pay his wife a sum annually for 
 her support and that of their child ; Dun- 
 bar v. Dunbar, 190 U. S. 340, 23 Sup. Ct. 757, 
 47 L. Ed. 1084. A discharge in bankruptcy 
 will be withheld if the bankrupt is shown 
 to have obtained property on credit upon 
 false representations in writing, and any 
 creditors may avail themselves of this right ; 
 In re Harr, 143 Fed. 421. 
 
 The right to a trial by jury is given in 
 respect of the fact of insolvency and of the 
 commission of an act of bankruptcy, upon 
 the application of the alleged bankrupt. The 
 right is absolute and cannot be withheld at 
 the court's discretion; Elliott v. Toeppner, 
 187 U. S. 327, 23 Sup. Ct 133, 47 L. Ed. 200. 
 
 The district court now has jurisdiction of 
 all matters and proceedings in bankruptcy, 
 Jud. Code, § 24, including controversies be- 
 tween the trustee and any adyerse claimant 
 of bis property. Suits by the trustee must 
 be brought in the court where the bankrupt 
 might have brought them, unless by consent 
 of the proposed defendant. 
 
 The circuit court of appeals (Judicial 
 Code, § 130) has appellate and supervisory 
 jurisdiction which is to be exercised in the 
 manner provided in the bankruptcy act By 
 § 25, appeals may be taken to the circuit 
 court of appeals: 1. From a judgment ad- 
 judging or refusing to adjudge the defend- 
 ant a bankrupt; 2. From a judgment grant- 
 ing or denying a discbarge; 3. From a judg- 
 ment allowing or rejecting a debt or claim 
 of $500 or over. Such appeal must be taken 
 within ten days and may be heard by the 
 appellate court in term time or in vacation. 
 
 The supreme court has appellate jurisdic- 
 tion of controversies in bankruptcy from 
 which it has appellate jurisdiction in other 
 cases; and it exercises a like jurisdiction 
 from courts of bankruptcy not within any 
 organized circuit of the United States and 
 from the supreme court of "the District of 
 Columbia. 
 
 An appeal may be taken to the supreme 
 court from the final decision of the circuit 
 
 court of appeals allowing or rejecting a 
 claim, under such rules as may be 
 by the supreme court in i 
 1. Where the amount in controversy 
 $2,000 and the question involved is one which 
 might have been taken on appeal or writ of 
 error from the highest court of the state to 
 the supreme court ; 2. Where some justice of 
 the supreme court shall certify that in his 
 opinion the determination of the question in- 
 volved is essential to the uniform construc- 
 tion of the bankruptcy laws. 
 
 Controversies may be certified to the su- 
 preme court from other United States courts 
 and the supreme court may exercise juris- 
 diction thereof, and may issue writs of cer- 
 tiorari pursuant to the laws now in force. 
 
 In the computation of time the first day 
 is excluded and the last included. 
 
 The act provides for the appointment for 
 two years of a reasonable number of refer- 
 ees, to whom all matters may be referred. 
 Referees in bankruptcy exercise much of 
 the judicial authority of the court; Mueller 
 v. Nugent, 1S4 U. S. 1, 22 Sup. Ct. 269, 40 
 L. Ed. 405. 
 
 The creditors appoint one or three trus- 
 tees at their first meeting, failing which, the 
 court shall do so. 
 
 A trustee holds the bankrupt's property 
 subject to all the equities against it: Secur- 
 ity Warehousing Co. v. Hand, 206 U. S 
 27 Sup. Ct. 720, 51 L. Ed. 1117. 11 Ann. Cas. 
 789; he gets no bettor title than the bank- 
 rupt had; Hewit v. Mach. Works. 101 U. S. 
 296, 24 Sup. Ct. G90, 48 L. Ed. 986. S 
 70 gives the trustee title to all pr 
 which, prior to the bankruptcy, could have 
 been transferred or levied upon or sold un- 
 der judicial proceedings against the bank- 
 rupt. The filing of a petition places all the 
 bankrupt property in the custody of the 
 court; Mueller v. Nugent, 1S4 U. S. 1, 22 
 Sup. Ct. 209, 46 L. Ed. 405; but it has no 
 jurisdiction against persons to whom the 
 bankrupt made a sale or conveyance before 
 the proceedings in bankruptcy, where it ap- 
 pears that the vendee acted in good faith; 
 Wall v. Cox, 181 U. S. 244, 21 Sup. Ct. 642, 
 45 L. Ed. S45; but where the bankrupt made 
 a general assignment for the benefit of cred- 
 itors, and the assignee sold the property aft- 
 er a petition in bankruptcy was tiled, it was 
 held that the purchaser had no title superior 
 to that of the trustee, although he bought 
 the property in good faith: Bryan v. 
 heimer, 181 U. S. 188, 21 Sup. <'t. "'7. 45 L. 
 Ed. 814. A contingent remainder does not 
 pass in bankruptcy; In re Hoadley, Ktl Fed. 
 233. A bankrupt trustee takes only the sur- 
 render value of the insurance policies on the 
 bankrupt's life, or if the company has loan- 
 ed on it, only the excess of sin render value. 
 The bankrupt is entitled to the policy by 
 paying for it the cash surrender value or 
 ess over loans made on it at the date 
 of filing the petition; and if the policy ma
 
 BANKRUPT LAWS 
 
 324 
 
 BANNITUS 
 
 tures before the adjudication he or his legal 
 representative is entitled to the proceeds of 
 the policy over and above such amount; and 
 this even though the bankrupt committed 
 suicide prior to adjudication ; Everett v. Jud- 
 son, 228 U. S. 474, 33 Sup. Ct. 508, 57 L. Ed. 
 
 ; Andrews v. Partridge, 228 U. S. 479, 
 
 33 Sup. Ct. 570, 57 L. Ed. . 
 
 The first meeting of creditors shall be 
 held not less than ten nor more than thirty 
 days after the adjudication. Subsequent 
 meetings may be held when all creditors 
 whose claims are allowed sign a written con- 
 sent thereto. The court shall call a meet- 
 ing whenever one-fourth of those who have 
 proved their claims apply in writing. A 
 final meeting shall be held when the estate 
 is ready to be closed. 
 
 Adjudication in bankruptcy terminates the 
 relation of landlord and tenant, and a claim 
 for rent accruing after such adjudication 
 will not be allowed, though the tenant ex- 
 ecuted promissory notes therefor; In re 
 Hays, Foster & Ward Co., 117 Fed. 879. A 
 sworn proof of claim against a bankrupt is 
 prima facie evidence of its allegations; 
 Whitney v. Dresser, 200 U. S. 532, 26 Sup. 
 Ct. 316, 50 L. Ed. 584; and a creditor who 
 knowingly received a preference and gave 
 it up only when compelled by the trustee 
 cannot thereafter prove his claim ; In re 
 Owings, 109 Fed. 623. An attorney is not 
 entitled to a preferential claim out of the es- 
 tate for professional services in preparing a 
 general assignment for the bankrupt within 
 the four months' period ; Randolph v. Scruggs, 
 190 U. S. 533, 23 Sup. Ct. 710, 47 L. Ed. 1165 ; 
 nor for services in resisting an adjudication 
 in voluntary bankruptcy; id.; but he may 
 prove as an unsecured claim his services in 
 the preparation of a deed of trust ; id. Three 
 or more creditors whose provable claims ag- 
 gregate, above any securities, $500, or if all 
 the creditors are less than twelve in num- 
 ber, then one whose claim exceeds such 
 amount may petition in involuntary bank- 
 ruptcy. 
 
 BANKRUPTCY. The state or condition of 
 a bankrupt. See Insolvency. 
 
 BANLEUCA. A certain space surround- 
 ing towns or cities, distinguished by peculiar 
 privileges. Spelman, Gloss. It is the same 
 as the French barilieue. 
 
 BANLIEU. In Canadian Law. See Ban- 
 
 LEXJCA. 
 
 BANNER. A small flag bearing a device 
 or symbol and intended to be carried or 
 waved. L. R. 2 P. C. 387. A canvas, parti- 
 colored or bearing party words and stretch- 
 ed across a street is a banner; 4 O'M. & H. 
 179. 
 
 BANNERET. A degree of honor next aft- 
 er a baron's, when conferred by the king ; 
 otherwise, it ranks after a baronet 1 Bla. 
 Com. 403. 
 
 BANNITUS. One outlawed or banished. 
 Calvinus, Lex. 
 
 BANNS OF MATRIMONY. Public notice 
 or proclamation of a matrimonial contract, 
 and the intended celebration of the marriage 
 of the parties in pursuance of such contract, 
 to the end that persons objecting to the same 
 may have an opportunity to declare such ob- 
 jections before the marriage is solemnized. 
 Cowell; 1 Bla. Com. 439; Pothier, Du Mar- 
 iage p. 2, c. 2. 
 
 BAN NUM. A ban. 
 
 BAR. To Actions. A perpetual destruc- 
 tion of the action of the plaintiff. 
 
 It is the exceptio peremptoria of the ancient 
 authors. Co. Litt. 303 6; Steph. PI. App. xxviii. 
 It is always a perpetual destruction of the particu- 
 lar action to which it is a bar, Doctrina Plac. xxiii. 
 § 1, p. 129 ; and it is set up only by a plea to the 
 action, or in chief. But it does not always operate 
 as a permanent obstacle to the plaintiff's right of 
 action. He may have good cause for an action, 
 though not for the action which he has brought; 
 so that, although that particular action, or any one 
 like it in nature and based on the same allegations, 
 is forever barred by a well-pleaded bar, and a deci- 
 sion thereon in the defendant's favor, yet where the 
 plaintiff's difficulty really is that he has miscon- 
 ceived his action, and advantage thereof be taken 
 under the general issue (which is in bar), he may 
 still bring his proper action for the same cause; 
 Gould, PI. c. v. § 137; 6 Coke 7, 8. Nor is final 
 judgment on a demurrer, in such a case, a bar to 
 the ..roper action, subsequently brought ; Gould, 
 PI. c. ix. § 46. And where a plaintiff in one action 
 fails on demurrer, from the omission of an essential 
 allegation in his declaration, which allegation is 
 supplied in the second suit, the judgment in the 
 first is no bar to the second; for the merits shown 
 in the second declaration were not decided in the 
 first; Gould, PI. c. ix. §45; c. v. § 158. 
 
 Another instance of what is called a temporary 
 bar is a plea (by executor, etc.) of plene adminis- 
 travit, which is a bar until it appears that more 
 goods have come into his hands, and then it ceases 
 to be a bar to that suit, if true before its final de- 
 termination, or to a new suit of the same nature: 
 Doctrina Plac. c. xxiii. § 1, p. 130; 4 East 508. 
 
 Where a person is bound in any action, 
 real or personal, by judgment on demurrer, 
 confession, or verdict, he is barred, that is, 
 debarred, as to that or any other action of 
 the like nature or degree, from the same 
 thing forever. But the effect of such a bar 
 is different in personal and real actions. 
 
 In personal actions, as in debt or account, 
 trover, replevin, and for torts generally (and 
 all personal actions), a recovery by the 
 plaintiff is a perpetual bar to another action 
 for the same matter. He has had one re- 
 covery ; Doctr. Plac. c. lxviii. § 1, p. 412. So 
 where a defendant has judgment against 
 the plaintiff, it is a perpetual bar to another 
 action of like nature for the same cause 
 (like nature being here used to save the 
 cases of misconceived action or an omitted 
 averment, where, as above stated, the bar 
 is not perpetual). And inasmuch as, in per- 
 sonal actions, all are of the same degree, a 
 plaintiff against whom judgment has passed 
 cannot, for the subject thereof, have an ac- 
 tion of a higher nature; therefore he gener-
 
 BAR 
 
 325 
 
 BAR ASSOCIATIONS 
 
 ally has in such actions no remedy (no man- 
 ner of avoiding the bar of such a judgment) 
 except by taking the proper steps to reverse 
 the very judgment itself (by writ of error, 
 or by appeal, as the case may be), and thus 
 taking away the bar by taking away the 
 judgment; Coke 7, 8. (For occasional ex- 
 ceptions to this rule, see authorities above 
 cited.) 
 
 In real actions, if the plaintiff be barred 
 as above by judgment on a verdict, demur- 
 rer, confession, etc., he may still have an 
 action of a higher nature, and try the same 
 right again; Lawes, Plead. 30; Stearns, Real 
 Act. See, generally, Bacon, Abr. Abatement, 
 n. ; Plea in bur; 3 East 346. 
 
 A particular part of the court- room. 
 
 As thus applied, and secondarily In various ways, 
 it takes its name from the actual bar, or enclosing 
 rail, which originally divided the bench from the 
 rest of the court-room, as well as from that bar, or 
 rail, which then divided, and now usually divides, 
 the space including the bench and the place which 
 lawyers occupy in attending on and conducting tri- 
 als, from the body of the court-room. 
 
 Those who are authorized to appear before 
 the court and conduct the trial of causes. 
 
 Those who, as advocates or counsellors, appeared 
 as speakers in court, were said to be "called to the 
 bar," that is, called to appear in presence of the 
 court, as barristers, or persons who stay or attend 
 at the bar of court. Richardson, Diet. Barrister. 
 By a natural transition, a secondary use of the 
 word was applied to the persons who were so called, 
 and the advocates were, as a class, called "the bar." 
 And in this country, since attorneys, as well as 
 counsellors, appear in court to conduct causes, the 
 members of the legal profession, generally, are 
 called the bar, and in this sense are employed the 
 terms "members of the bar" and "admission to the 
 bar." 
 
 The court, in its strictest sense, sitting in 
 full term. 
 
 Thus, a civil case of great consequence was not 
 left to be tried at nisi prius, but was tried at the 
 "bar of the court itself," at Westminster ; 3 Bla. 
 Com. 352. So a criminal trial for a capital offence 
 was had "at bar," 4 id. 351; it is still used in a 
 criminal trial before three judges in the King's 
 Bench Division. It is also used in this sense, with 
 a shade of difference (as not distinguishing nisi 
 prius from full term, but as applied to any term of 
 the court), when a person indicted for crime is 
 called "the prisoner at the bar," or is said to stand 
 at the bar to plead to the indictment. See Merlin, 
 Ripert. Barreau; 1 Dupin, Prof. d'Av. 451. 
 
 An obstacle or opposition. Thus, relation- 
 ship within the prohibited degrees, or the 
 fact that a person is already married, is a 
 bar to marriage. 
 
 BAR ASSOCIATIONS. Associations of 
 members of the bar have been organized in 
 most of the states. The first of them was 
 in Mississippi in 1825, but it is not known to 
 have had a continued existence. One was 
 formed in Boston for the state of Massachu- 
 setts in 1849, but it does not appear to have 
 had any real life. An association of Graf- 
 ton and Coos counties in New Hampshire had 
 an existence before 1800. and probably a 
 more or less continuous life since then, hav- 
 ing finally merged into a state association. 
 A state association was formed in Iowa in 
 
 1875, and existed for not more than five 
 years. All printed reports relating to these 
 ations are in the collection of the Har- 
 vard Law School. Similar associations ex- 
 ist in many of the counties in various 8l 
 especially in Pennsylvania, where they are 
 chiefly Library >us. The olde 
 
 sodation of the kind, certainly the oldest 
 that has had a continuous life, is the Law 
 Association of Philadelphia, organized in 
 1802. The American Bar Association was 
 organized at Saratoga, in August, 1878, and 
 has held annual meetings ever since. The 
 National Bar Association, based upon rep- 
 resentation from state and local associations, 
 was organized in May, 1888, and held its 
 last meeting in December, 1891. 
 
 BAR FEE. A fee taken by the sheriff, 
 time out of mind, for every prisoner who is 
 acquitted. Bacon, Abr. Extortion. Abolish- 
 ed by stats. 14 Geo. III. c. 26; 55 Geo. III. 
 c. 50 ; 8 & 9 Vict. c. 114. 
 
 BAR ROOM. See Saloon. 
 
 BARBER. Barbers were incorporated 
 with the surgeons of London, but not to 
 practice surgery, except the drawing of 
 teeth ; 32 Hen. VIII. c. 42. 
 
 The business of a barber involves the pub- 
 lic health and interest to such an extent that 
 the requirement of a license is a valid ex- 
 ercise of legislative power ; State v. Zeno, 
 79 Minn. SO, 81 N. W. 748, 48 L. R. A. 
 Am. St. Rep. 422. Within the meaning of a 
 civil rights act a barber shop is not a place 
 of public accommodation; Faulkner v. So- 
 lazzi, 79 Conn. 541, 65 Atl. 947, 9 L. R. A. 
 (N. S.) 601, 9 Ann. Cas. 67. 
 
 Shaving on Sunday is not a work of neces- 
 sity, charity or mercy; 4 CI. & F. 234. A 
 barber's work is a worldly labor in the 
 course of the ordinary calling ; State v. 
 Frederick, 45 Ark. 347, 55 Am. Rep. 555. In 
 Com. v. Waldman, 140 Pa. 89. 21 Atl. 248, 
 
 11 L. 'R. A. 563, the court refused to say as 
 a matter of law that the keeping open his 
 place of business on Sunday by a barber was 
 a matter of necessity. Shaving an aged or 
 infirm person in his own home on Sunday 
 is not. as a matter of law, a work of neces- 
 sity : Stone v. Graves. 145 Mass 353, 13 N. 
 E. 906. A statute declaring that keeping 
 open a barber shop is not deemed a work of 
 necessity or charity does not exceed consti- 
 tutional bounds, though as to other binds <>i~ 
 labor, that question is left to be determined 
 as one of fact; State v. Petit, 71 Minn. 376, 
 77 N. W. 225 ; affirmed in Petit v. Minne- 
 sota. 177 U. S. 164, 20 Sup. Ct. 666, 44 L. 
 Ed. 716. 
 
 Where a state constitution forbids the pas- 
 sage of special or local laws for the punish- 
 ment of crimes, a Jaw making it a misde- 
 meanor for a barber to work on Sunday after 
 
 12 noon was held unconstitutional; Ex parte 
 Jeutzsch, 112 Cal. 468. 44 Pac. S03, 32 L. 
 It. A. 664 ; and see Eden v. People, 161 111.
 
 BARBER 
 
 32G 
 
 BARGAIN AND SALE 
 
 296, 43 N. E. 1108, 32 L. R. A. G59, 52 Am. 
 St. Rep. 3G5; State v. Granneman, 132 Mo. 
 326, 33 S. W. 784; Armstrong v. State, 170 
 Ind. 18S, 84 N. E. 3, 15 L. R. A. (N. S.) 646 ; 
 so where a law prohibited barbers from 
 opening their bath rooms on Sunday, but did 
 not prohibit other persons from doing so; 
 Ragio v. State, 86 Tenn. 272, 6 S. W. 401 ; 
 but see contra, State v. Bergfcldt, 41 Wash. 
 234, 83 Pac. 177. 6 Ann. Cas. 979; People v. 
 Havnor, 149 N. Y. 195, 43 N. E. 541, 31 L. 
 R. A. 689, 52 Am. St. Rep. 707, the latter 
 case by a divided court, three of seven judg- 
 es dissenting on the ground that the act 
 (making it a misdemeanor for a barber to 
 work on Sunday, except in the cities of New 
 York and Saratoga Springs, and there only 
 until one o'clock) was vicious class legisla- 
 tion ; and that the result necessarily leads 
 to the conclusion that the legislature, by per- 
 mitting barber shops to remain open for a 
 portion of Sunday in two cities necessarily 
 proceeded upon the theory that the business 
 is a work of necessity. Where a general 
 law prohibits all labor on Sunday, an act 
 prohibiting barbers from working on that 
 dav is not class legislation ; Breyer v. State, 
 102 Tenn. 103, 50 S. W. 769. 
 
 BARE. Naked; absence of a covering; 
 unaccompanied. A bare trustee is one 
 whose trust is to convey, and the time has 
 arrived for a conveyance by him ; or a trus- 
 tee to whose office no duties were originally 
 attached, or who, although such duties were 
 originally attached to his office, would, on 
 the requisition of his cestuis <fite trust, be 
 compellable in equity to convey the estate 
 to them' or by their direction. 1 Ch. Div. 
 281. 
 
 BAREB0NES PARLIAMENT. A parlia- 
 ment summoned by Cromwell in 1653. 
 
 BARGAIN. It signifies a contract or 
 agreement between two parties, the one to 
 sell goods or lands, and the other to buy 
 them. Hunt v. Adams, 5 Mass. 358, 4 Am. 
 Dec. 68. 
 
 BARGAIN AND SALE. A contract or bar- 
 gain by the owner of land, in consideration 
 of money or its equivalent paid, to sell land 
 to another person, called the bargainee, 
 whereupon a use arises in favor of the lat- 
 ter, to whom ' the seisin is transferred by 
 force of the statute of uses. 2 Washb. R. P. 
 128; Bisp. Eq. 419. 
 
 Upon principles of equity, any agreement, 
 supported by a valuable consideration, to 
 the effect that an estate or interest in land 
 should be conveyed, as it might be specially 
 enforced in the court of chancery, was 
 held to entitle the purchaser to the use or 
 beneficial ownership according to the terms 
 and intent of the agreement, without any 
 legal conveyance ; and accordingly the ven- 
 dor was held to be or stand seised to the 
 use of the purchaser. Such transaction, as 
 
 creating a use executed by the statute, be- 
 came technically known as a bat-gain and 
 sale. As a bargain and sale thus , would 
 have been effectual to convey a legal estate 
 under the statute by mere force of the agree- 
 ment without any writing or formality, it 
 was thought expedient to add some formal 
 conditions to the operation of the statute 
 upon it; and it was enacted by a statute 
 of the same session of parliament, 27 Hen. 
 VIII. c. 16, to the effect that no estate of 
 freehold shall pass by reason only of a bar- 
 gain and sale, unless made by writing in- 
 dented, sealed, and enrolled in manner and 
 place therein provided. This statute ap- 
 plied only to estates of freehold, and a use 
 for a term of years might still be created 
 within the statute of uses by mere bargain 
 and sale without deed or enrolment. Leake, 
 Land Laws 108. 
 
 This is a very common form of conveyance in the 
 United States. In consequence of the consideration 
 paid, and the bargain made by the vendor, of which 
 the conveyance was evidence, a use was raised at 
 once in the bargainee. To this use the statute of 
 uses transferred and annexed the seisin, whereby a 
 complete estate became vested in the bargainee; 2 
 Washb. R. P. 128. 
 
 All things, for the most part, that may 
 be granted by any deed may be granted by 
 bargain and sale, and an estate may be cre- 
 ated in fee, for life, or for years; 2 Coke 
 54; Dy. 309. 
 
 There must have been a valuable consid- 
 eration ; Springs v. Hanks, 27 N. C. 30; 
 Wood v. Beach, 7 Vt 522; Hanrick v. 
 Thompson, 9 Ala. 410; Cheney's Lessee v. 
 Watkins, 1 Harr. & J. (Md.) 527, 2 Am. Dec. 
 530; Okison v. Patterson, 1 W. & S. (Pa.) 
 395; Jackson v. Sebring, 16 Johns. (N. Y.) 
 515, 8 Am. Dec. 357 ; Cro. Car. 529 ; Tied em. 
 R. P. § 776; but its adequacy is immaterial; 
 thus a rent of one peppercorn was held suffi- 
 cient; 2 Mod. 249; see Leake, Land Laws 
 109; the consideration need not be express- 
 ed; Jackson v. Fish, 10 Johns. (N. Y.) 456. 
 See Washb. ,R. P. ; Hayes v. Kershow, 1 
 Sandf. Ch. (N. Y.) 259; Jackson v. Leek, 19 
 Wend. (N. Y.) 339; Wood v. Beach, 7 Vt. 
 522; Eckman v. Eckman, 68 Pa. 460; Traf- 
 ton v. Hawes, 102 Mass. 533, 3 Am. Rep. 
 494 ; Perry v. Price, 1 Mo. 553 ; Jackson v. 
 Dillon's Lessee, 2 Over. (Tenn.) 261. 
 
 The proper and technical words to denote 
 a bargain and sale are bargain and sell; 
 Mitch. R. P. 425 ; but any other words that 
 are sufficient to raise a use upon a valuable 
 consideration are sufficient ; 2 Wood, Conv. 
 15 ; as, for example, make over and grant; 
 Jackson v. Alexander, 3 Johns. (N. Y.) 484, 
 3 Am. Dec. 517; release and assign; Lynch 
 v. Livingston, 8 Barb. (N. Y.) 463. See 2 
 Washb. R. P. 620; Shepp. Touchst. 222. 
 
 An estate in futuro may be conveyed by 
 deed of bargain and sale; Rogers v. Eagle 
 Fire Co., 9 Wend. (N. Y.) 611; 4 H. & N. 
 277; Drown v. Smith, 52 Me. 141; Trafton
 
 BARGAIN AND SALE 
 
 327 
 
 BARON ET 1 . 
 
 v. Hawes, 102 Mass. 533, 3 Am. Rep. 494; 
 Fisher v. Strickler, 10 Pa. 34S, 51 Am. Dec. 
 48S; Mellichamp v. Mellichamp, 28 S. C. 
 125, 5 S. E. 333; contra, Sowle v. Sowle, 
 10 Pick. (Mass.) 376; Marden v. Chase, 32 
 Me. 329; 2 Washb. R. P. *417; but not at 
 common law ; note to Doe v. Tranmar, 2 
 Sm. Lead. Cas. 473, where the cases are dis- 
 cussed. 
 
 Consult Gilbert on Uses, Sugden's edi- 
 tion ; Tiedem. R. P. 
 
 BARGAINEE. The grantee of an estate 
 in a deed of bargain and sale. The ] 
 to whom property is tendered in a bargain. 
 
 BARGAINOR. The person who makes a 
 in; he who is tn deliver the property 
 and receive the consideration. 
 
 BARGE. Lighters or a flat bottom boat 
 
 for loadiug or unloading ships; or a boat 
 
 used for pleasure. See The Mamie, 5 Fed. 
 813. 
 
 BARMOTE. See Bergjioth. 
 
 BARO. A man, whether slave or free. 
 Si quis homicidittm p&rpetraverii in ba- 
 rone libro seu servo, if any one shall have 
 perpetrated a murder upon any man, slave 
 or free. A freeman or freedman ; a strong 
 man; a hired soldier; a vassal; a feudal 
 client 
 
 Those who held of the king immediately were 
 called barons of the king. 
 
 A man of dignity and rank ; a knight. 
 
 A magnate in the church. 
 
 A judge in the exchequer (baro scaccarii). 
 
 The first-born child. 
 
 A husband. 
 
 The word is said by Spelman to have been 
 used more frequently in its latter sense; 
 Spelman, Gloss. 
 
 It Is quite easy to trace the history of baro, from 
 meaning simply man, to its various derived signifi- 
 cations. Denoting a man, one who possessed the 
 manly qualities of courage and strength would be 
 desirable as a soldier, or might misuse them as a 
 robber. One who possessed them in an eminent 
 degree would be the man; and hence baro, in its 
 sense of a title of dignity or honor, particularly 
 applicable in a warlike age to the best soldier. See, 
 generally, Bacon, Abr. ; Comyns, Dig.; Spelman, 
 Gloss. Baro. 
 
 BARON. A general title of nobility. 1 
 Bla. Com. 39S ; a particular title of nobility, 
 next to that of viscount. The lowest title 
 in Great Britain. Originally barons compre- 
 hended all the nobility, being the feudatories 
 of provinces. At present barons may be by 
 prescription, because they and their ances- 
 tors have immemorially sat in the House of 
 Lords; by patent; or by tenure, holding the 
 title as annexed to land. 
 
 A judge of the exchequer. 1 Bla. Com. 44. 
 
 A husband. See Baron et Feme. 
 
 A freeman. 
 
 It has essentially the same meanings as 
 Baro, which see. 
 
 BARON ET FEME. Man and woman; 
 husband and wife. 
 
 It Is doubtful if the words had originally In this 
 phrase more meaning than man and woman. The 
 vulgar use of man and woman for husband and 
 wife suggests the change of meaning which might 
 naturally occur from man and woman to husband 
 and wife. Spelman, Gloss. ; 1 Bla. Com. 442. 
 
 BARONAGE. A term used to designate 
 the entire nobility of England of all ranks. 
 
 BARONES SCACCARII. See BAB0N8 of 
 the Exchequer. 
 
 BARONET. A British title of hereditary 
 
 rank next below that of a baron; it is the 
 only title of hereditary knighthood. It is 
 given by patent, not by investiture. The 
 order was founded in 1611. They rank 
 above all knights except those of the Garter. 
 The order of Baronets of Ireland was found- 
 ed in 1619 with the same privileges. The 
 order of Baronets of Scotland was founded 
 in 1625; alter the Union (17<>7) they became 
 Baronets of the United Kingdom. None 
 have been created since. The usual a! 
 ation after the name Is Bart. Cent Diet 
 
 BARONS OF THE CINQUE PORTS. 
 Cinque Posts. - 
 
 BARONS OF THE EXCHEQUER. The 
 judges of the exchequer. See Exchequer. 
 
 BARONY. The dignity of a baron; a spe- 
 cies of tenure; the territory or lands held 
 by a baron. Spelman, Gloss. It is possible 
 that this tenure was distinct from that of 
 knight service. 2 Holdsw. Hist. Eng. L. 159. 
 
 In Scotland a large freehold estate even 
 though the proprietor is not a baron. 
 
 BARRATOR. One who commits barratry. 
 
 BARRATRY (Fr. barat, baraterie, robbery. 
 deceit, fraud). Sometimes written Barretry. 
 The offence of frequently exciting and stir- 
 ring up quarrels and suits, either at law or 
 otherwise. 4 Bla. Com. 134; Co. Litt 3GS. 
 See 1 Cowp. 154, by Lord Mansfield. 
 
 An indictment for this offence must charge 
 the offender with being a common barrator; 
 1 Sid. 2S2; Train & H. Prec. 55; and the 
 proof must show at least three instances of 
 offending; Com. v. McCulloch, 15 Mass. 227; 
 State v. Simpson. 1 Bail. (S. C.) 379 : Com. v. 
 Mohn, 52 Pa. 24:?, 01 Am. Dee. 153; I. mas v. 
 Pico, 55 Cal. 120 ; Voorhees v. Dorr, 51 Barb. 
 (N. Y.) 5S0. 
 
 An attorney is not liable to indictment 
 for maintaining another in a groundless ac- 
 tion; State v. Simpson. 1 Bail. (S. < '.) 379. 
 See 2 Bish. Cr. Law § 63 ; 2 id. § 57 ; Lam- 
 bert v. People, Cow. (N. Y.) 587; Com. v. 
 McCulloch, 15 Mas-. 229; State v. Simpson, 
 1 Bail. (S. C.) 379 ; 2 Sauud. 30S aud note. 
 
 The purchase of a single claim, with the 
 intention of suin^' upon it. does not amount 
 to barratry; to constitute the offence there 
 must be a practice of fomenting suits; Chase's 
 Bla. Com. 905. n. 7 ; Voorhees v. Dorr, 51 
 Barb. (N. Y.) 5S0.
 
 BARRATRY 
 
 328 
 
 BARRISTER 
 
 In Maritime Law and Insurance. An un- 
 lawful or fraudulent act, or very gross and 
 culpable negligence, of the master or mari- 
 ners of a vessel in violation of their duty as 
 such, and directly prejudicial to the owner, 
 and without his consent ; Roccus, h. t. ; Ab- 
 bott, Ship. 167, n.; 2 Ld. Raym. 349; Ken- 
 drick v. Delafield, 2 Caines (N. Y.) 67; Suck- 
 ley v. Delafield, id. 222 ; Mclntire v. Bowne, 
 1 Johns. (N. Y.) 229; Grim v. Ins. Co., 13 id. 
 451; Brown v. U. S., 8 Cra. (U. S.) 139, 3 L. 
 Ed. 504; Greene v. Ins. Co., 9 Allen (Mass.) 
 217; Brown v. Ins. Co., 5 Day (Conn.) 1, 5 
 Am. Dec. 123; Hughes v. Ins. Co., 3 Wheat 
 (U. S.) 163, 4 L, Ed. 357 ; Crousillat v. Ball, 
 4 Dall. (Pa.) 294, 1 L. Ed. 840, 2 Am. Dec. 
 375 ; 5 B. & Aid. 597 ; Lawton v. Ins. Co., 2 
 Cnsh. (Mass.) 511 ; Patapsco Ins. Co. v. Coul- 
 ter, 3 Pet. (U. S.) 230, 7 L. Ed. 659. It is 
 said that the term implies an intentional in- 
 jury; it does not embrace cases of negli- 
 gence; Atkinson v. Ins. Co., 4 Daly (N. Y.) 
 1. A part owner of a ship who is its master 
 may be guilty of barratry towards his co- 
 owners; Hutcbins v. Ford, 82 Me. 363, 19 
 Atl. 882 ; Voisin v. Ins. Co., 62 Hun 4, 16 N. 
 Y. Supp. 410. It extends, in addition to gross- 
 er cases of barratry, to the following: — sail- 
 ing out of a port without paying port dues, 
 whereby the cargo is forfeited ; 6 Term 379 ; 
 disregarding an embargo ; 1 Term 127 ; or a 
 blockade ; 6 Taunt 375 ; and when a master 
 was directed to make purchases, and went 
 into an enemy's settlement to trade (though 
 it could be done there to better advantage), 
 whereby the ship was seized, it was held bar- 
 ratry ; L. R. 1 Q. B. 162; even though he 
 thought thereby to benefit the owner. When 
 a master is entitled to use his discretion, his 
 conduct will not constitute barratry, unless 
 he goes against his better judgment ; 1 Stark. 
 240. See L. R. 3 C. P. 476. The grossest 
 barratries, as piratically or feloniously seiz- 
 ing or running away with the vessel or car- 
 go, or voluntarily delivering the vessel into 
 the hands of pirates, or mutiny, are capital 
 offences by the laws of the United States; 
 Act of Congress, April 30, 1790, 1; Story's 
 Laws U. -S. 84. Barratry is one of the risks 
 usually insured against in marine insurance ; 
 3 Kent, Lacy's ed. 305, n. 50. See Insurable 
 Interest. 
 
 BARREL. A measure of capacity, equal 
 to thirty-six gallons. 
 
 BARREN MONEY. A debt which bears no 
 interest. 
 
 BARRENNESS. The incapacity to pro- 
 duce a child. 
 
 This, -when arising from impotence which existed 
 at the time the relation was entered into, is a cause 
 for dissolving a marriage ; 1 Fodere, Med. Leg. § 
 254 ; where a woman, by an operation, had been 
 rendered incapable of bearing children, known to 
 ■ the husband before marrying, it was not ground 
 of divorce; Jorden v. Jorden, 93 111. App. 633. 
 
 BARRISTER. In English Law. A coun- 
 sellor admitted to plead at the bar. It did 
 
 not become a usual name until the 16th cen- 
 tury. As a popular name it meant an utter 
 barrister; 21 L. Q. R. 253. 
 
 Inner barrister. A serjeant or king's coun- 
 sel who pleads within the bar. 
 
 Outer or Utter barrister. One who pleads 
 without the bar. Because they sat "utter- 
 most on the forms of the benchers which 
 they call the bar." 29 Lu Q. R. 25. They are 
 distinguished from benchers, or those who 
 have been readers, and are allowed to plead 
 within the bar, as are the king's counsel. See 
 Utter Barrister. 
 
 Vacation barrister. A counsellor newly 
 called to the bar, who is to attend for sev- 
 eral long vacations the exercises of the house. 
 
 In the old books, barristers are called apprentices, 
 apprentitii ad legem, or ad barras (from which the 
 term barrister was derived), being looked upon as 
 learners, and not qualified until they obtain the de- 
 gree of serjeant. Edmund Plowden, the author of 
 the Commentaries, a volume of reports in the 
 reigns of Edward VI., Mary, Philip and Mary, and 
 Elizabeth, aescribes himself as an apprentice of the 
 common law. See generally, Weeks on Attys. § 29. 
 
 Barristers are now either "utter barris- 
 ters," now more frequently called "junior 
 barristers," or king's counsel. The former is 
 a person who was formerly a student at an 
 Inn of Court and who has been "called to 
 the bar" by the benchers of his Inn and at 
 his Inn. A recent writer insists that the 
 judges, by statute, alone have the right to 
 call to the bar, i. e. alone can give the 
 "right of audience"; the judges have consti- 
 tuted the benchers of the Inns of Court their 
 deputies for that purpose ; W. C. Bolland, 24 
 L. Q. R. 397 ; 23 id. 438. The Inns of Court 
 only call to the bar of their societies and not 
 to the bar itself; 29 L. Q. R. 23. See Dis- 
 bar. 
 
 A king's counsel is a barrister whom the 
 judges have "called within the bar" at the 
 Royal Courts of Justice ; Odger, ' C. L. 1425. 
 
 See Inns of Court; Serjeants- at-Law. 
 
 Barristers have an exclusive right of au- 
 dience as advocates in the House of Lords, 
 Privy Council, Supreme Court of Judicature, 
 Central Criminal Court and Assizes; also 
 in Courts of County and Borough Quarter 
 Sessions whenever a sufficient number reg- 
 ularly attend the court They have no ex- 
 clusive right in County Courts, Sheriffs' 
 Courts, Coroners' Courts, Ecclesiastical 
 Courts and Courts of Petty Sessions ; Odger 
 C. L. 1427. They are obliged to accept any 
 brief (accompanied by a suitable fee) except 
 under special circumstances. 
 
 BARTER. A contract by which parties ex- 
 change goods for goods. 
 
 It differs from a sale in that a barter is always of 
 goods for goods; a sale is of goods for money, or 
 for money and goods. In a sale there is a fixed 
 price; in a barter there is not. See Benj. Sales 1; 
 Speigle v. Meredith, 4 Biss. V10, Fed. Cas. No. 13,- 
 227; Com. v. Davis, 12 Bush (Ky.) 241; Cooper v. 
 State, 37 Ark. 418. 
 
 There must be delivery of goods to com- 
 plete the contract
 
 BARTER 
 
 329 
 
 BASE SER.VICES 
 
 If an insurance be made upon returns 
 from a country where trade is carried on 
 by barter, the valuation of the goods iu re- 
 turn shall be made on the cost of those giv- 
 en in barter, adding all charges; Weskett, 
 Ins. 42. See 3 B. & Aid. 616; 3 Campb. 851; 
 Cowp. 118 ; 1 Dougl. 24, n. ; 4 B. & P. 151 ; 
 Troplong, De VEchange. 
 
 BARTON. In Old English Law. The de- 
 mesne land of a manor ; a farm distinct 
 from the mansion. 
 
 Sometimes it is used for the manor house 
 itself ; and in some places for out houses 
 and fold yards. In the statute 2 & 3 Edw. 6, 
 c. 12, Barton lands and demesne lands are 
 used as synonymous. Cowell. 
 
 BAS CHEVALIERS. Knights by tenure 
 of a base military fee, as distinguished from 
 bannerets, who were the chief or superior 
 knights. Kennett, Paroch. Ant. ; Blount. 
 
 BASE BALL. It is a game of skill with- 
 in the criminal offense of betting on such a 
 game; Mace v. State, 58 Ark. 79, 22 S. W. 
 1108. Prohibition of base ball playing on 
 Sunday does not violate the right of con- 
 science in matters of religion secured to the 
 individual by the Ohio Bill of Rights ; State 
 v. Powell, 5S Ohio St. 324, 50 N. E. 900, 41 
 L. R. A. 854 ; nor does imposing a larger 
 penalty on persons who play base ball on 
 Sunday in violation of a statute than upon 
 those who are engaged in hunting, fishing, 
 rioting or quarrelling, and in acts of com- 
 mon labor, violate the constitutional right of 
 citizens to equal privileges and immunities ; 
 State v. Hogreiver, 152 Ind. 652, 53 N. E. 921, 
 45 L. R. A. 504. 
 
 Under a contract of hiring for a definite 
 time, which is silent as to the degree of skill 
 to be possessed, the ordinary skill, knowledge 
 and efficiency of base ball players is all that 
 is required; Baltimore Baseball Club & Ex- 
 hibition Co. v. Pickett, 7S Md. 375, 28 Atl. 
 279, 22 L. R. A. 690, 44 Am. St. Rep. 304. 
 
 See Specific Performance of Negative 
 Covenants; Injunction. 
 
 BASE COIN. Debased coin. Cohens v. 
 Virginia, 6 Wheat. (U. S.) 333, 5 L. Ed. 257. 
 
 BASE COURT. An inferior court, that is, 
 not of record, as the court baron. Cunning- 
 ham. 
 
 BASE FEE. A fee which has a qualifi- 
 cation annexed to it, and which must be 
 determined whenever the annexed qualifica- 
 tion requires. 
 
 A grant to A and his heirs, tenants of Dale, con- 
 tinues only while they are such tenants; 2 Bla. 
 Com. 109. See Wiggins Ferry Co. v. R. Co., 91 
 111. 93. 
 
 The proprietor of such a fee has all the 
 rights of the owner of a fee-simple until his 
 estate is determined. Plowd. 557 ; 1 Washb. 
 R. P. 62 ; 1 Prest. Est. 431 ; Co. Litt. 1 6. 
 
 BASE SERVICES. Such services as were 
 unworthy to be performed by the nobler men, 
 
 and were performed by the and 
 
 those of servile rank. 2 Ela. Com. 02 ; 1 
 Washb. E. P. 25. 
 
 BASEMENT. A floor partly beneath the 
 surface of the ground but distinguished from 
 a cellar by being well lighted and fitted for 
 living purposes. In England the ground floor 
 of a city house. 
 
 BASILICA. An abridgment of the Corpus 
 Juris Civilis of Justinian, translated into 
 Greek and first published in the ninth cen- 
 tury. 
 
 The emperor Basillus, finding the Corpus Juri3 
 Civilis of Justinian too long and obscure, resolved 
 to abridge it, and under his auspices the work was 
 commenced a. d. 807, and proceeded to the fortieth 
 book, which at his death remained unfinished. His 
 son and successor, Leo Philosophus, continued the 
 work, and published it, in sixty books, about the 
 year 880. Constantine Porphyro-genitus, younger 
 brother of Leo, revised the work, rearranged It, and 
 republished it, a. d. 947. From that time the laws 
 of Justinian ceased to have any force In the eastern 
 empire, and the Basilica were the foundation of the 
 law observed there till Constantine XIII., the last 
 of the Greek emperors, under whom, in 1453, Con- 
 stantinople was taken by Mahomet the Turk, who 
 put an end to the empire and its laws. Histoire de 
 la Jurisprudence; Etienne, Intr. a l'Etude du Droit 
 Romain, § 53. The Basilica were translated into 
 Latin by J. Cujas (Cujacius), Professor of Law in 
 the University of Bourges, and published at Lyons, 
 22d of January, 1566, in one folio volume. 
 
 BAS0CHE (Fr.). An association of the 
 "Clercs du Parlement" of Paris, supposed to 
 have been instituted in 1302. It judged all 
 civil and criminal matters that arose among 
 the clerks and all actions brought against 
 them. Hist, for Ready Reference. 
 
 BASSA TENURA. See Base Fee. 
 
 BASTARD (has or bast, abject, low, base. 
 acfd, nature). 
 
 One born of an illicit connection, and be- 
 fore the lawful marriage of its parents. 
 
 One begotten and born out of lawful wed- 
 lock. 2 Kent 208. 
 
 One born of an illicit union. La. Civ. Code, 
 arts. 29, 199. 
 
 The second definition, which is substantially the 
 same as Blackstone's, is open to the objection that 
 it does not include with sufficient certainty those 
 cases where children are born during wedlock but 
 are not the children of the mother's husband. 
 
 The term is said to include those born of 
 parties under disability to contract mar- 
 riage, as slaves. Timmins v. Lacy, 30 Tex. 
 115. 
 
 A child is a bastard if born before the 
 marriage of his parents, but he is not a bas- 
 tard if born after marriage, although begot- 
 ten before; 1 Bla. Com. 47>r>. 456; 8 Bast 
 210 ; State v. Herman, 35 N. C. 502. By the 
 civil law and by the statute law of many of 
 the states, a subsequent marriage of the par- 
 ents legitimates children born prior thereto. 
 The rule prevails substantially in Arkansas, 
 Alabama, Georgia, Illinois, Indiana, Ken- 
 tucky, Louisiana, Maine, Maryland, Massa- 
 chusetts, Mississippi, Missouri, New Hamp- 
 shire, Ohio, Pennsylvania, Texas, Vermont,
 
 BASTARD 
 
 330 
 
 BASTARD 
 
 and Virginia, with somewhat varying provi- 
 sions in the different states; 2 Kent 210; 
 but under the common law this is not so; 
 Brock v. State, 85 Ind. 397; Ross v. Ross, 
 129 Mass. 243, 37 Am. Rep. 321. See Heib. 
 A child is a bastard if born during cover- 
 ture under such circumstances as to make 
 it impossible that the husband of his mother 
 can be his lather; Nich. Adult. Bast. 249; 
 Hall v. Com., Hard. (Ky.) 479; Patterson v. 
 Gaines, How. (U. S.) 550, 12 L. Ed. 553; 
 2 M. & K. 349 ; State v. Britt, 78 N. C. 439 ; 
 Herring v. Goodson, 4.°, Miss. 392; Bussom 
 v. Forsyth. 32 N. J. Eq. 277; Kleinert v. 
 Ehlers, 3S Pa. 439 ; Caujolle v. Ferrte, 23 N. 
 Y. 90; but in England the presumption of 
 legitimacy holds if the husband had any op- 
 portunity of sexual access during the natu- 
 ral period of gestation, and the question for 
 the jury is not— was the husband the father, 
 but could he have been ; 1 Broom & H. Com. 
 562; and such is the rule in the United 
 States; Van Aernam v. Van Aernam, 1 Barb. 
 Ch. (N. Y.) 375; Dennison v. Page, 29 Pa. 
 420, 72 Am. Dec. 644 ; Watts v. Owen, 62 
 Wis. 512, 22 N. W. 720; Chase's Bla. Com. 
 172, n. 13. If there were opportunities for 
 intercourse, evidence is generally not allowed 
 to establish illegitimacy ; 2 Gr. Ev. §§ 150, 
 151 and n. ; Inhabitants of Abington v. In- 
 habitants of Duxbury, 105 Mass. 287. See 
 9 Beav. 552; 1 Whart. Ev. § 608; 2 id. 1298; 
 1 Bish. Mar. & Div. §§ 1170, 1179. It is, how- 
 ever, held that a strong moral impossibility, 
 or such improbability as to be beyond a rea- 
 sonable doubt is sufficient; Stegall v. Ste- 
 gall, 2 Brock. 256, Fed. Cas. No. 13,351; 
 Cross v. Cross, 3 Paige Ch. (N. Y.) 139, 23 
 Am. Dec. 778 ; Wright v. Hicks, 15 Ga. 160, 
 60 Am. Dec. 6S7 ; State v. Herman, 35 N. C. 
 502. The presumption of legitimacy of a 
 child born in wedlock is so strong that it 
 cannot be overcome by proof of the adultery 
 of the wife while cohabiting with her hus- 
 band, much less by the mere admission of 
 the adulterer ; Grant v. Mitchell, S3 Me. 23, 
 21 Atl. 178; [1903] P. 141; 1 Moo. & Rob. 
 269, where Alderson, B., said: "The law will 
 not under such circumstances, allow a bal- 
 ance of evidence, as to who is most likely to 
 have been the father." 
 
 As to who may be admitted to prove non- 
 access, see 3 E. L. & Eq. 100; Bowles v. 
 Bingham, 2 Munf. (Va.) 442, 5 Am. Dec. 497; 
 People v. Overseers of Poor, 15 Barb. (N. Y.) 
 286 ; Parker v. Way, 15 N. H. 45 ; Dennison 
 v. Page, 29 Pa. 420, 72 Am. Dec. 644 ; 1 Bla. 
 Com. 458; Gardner Peerage Case, Le Mar- 
 chant's report; 5 C. & F. 163; Dejol v. John- 
 son, 12 La. Ann. 853. Neither husband nor 
 wife are competent for this purpose; Mink 
 v. State. 60 Wis. 583, 19 N. W. 445, 50 Am. 
 Rep. 386; Tiogo County v. South Creep Tp., 
 75 Pa. 436 ; Corson v. Corson, 44 N. H. 5S7 ; 
 1 Q. B. 444; 5 Ad. & E. ISO; but see State 
 v. McDowell, 101 N. C. 734, 7 S. E. 785, and 
 see Access. 
 
 The child may be exhibited to the jury to 
 show resemblance to the putative father; 
 Gaunt v. State, 50 N. J. L. 490, 14 Atl. 600; 
 Finnegan v. Dugan, 14 Allen (Mass.) 197; 
 Warlick v. White, 76 N. C. 175; 15 Yale L. 
 J. 96; contra, Clark v. Bradstreet, SO Me. 
 154, 15 Atl. 56, 6 Am. St. Rep. 221. See 14 
 llarv. L. Rev. 545. 
 
 A child is a bastard if born beyond a com- 
 petent time after the coverture has deter- 
 mined; Co. Litt. 123 b; Hargrave & B. note; 
 2 Kent 210. See Gestation. 
 
 The principal right which a bastard child 
 has is that of maintenance from his parents ; 
 1 Bla. Com. 45S; La. Civ. Code § 254; 
 (though not from his father at common law ; 
 Schoul. Dom. Rel. *384) ; which may be se- 
 cured by the public officers who would be 
 charged with the support of the child, by a 
 peculiar process, or in some cases by the 
 mother; 2 Kent 215. A bastard has no in- 
 heritable blood at common law ; but he may 
 take by devise if described by the name he 
 has gained by reputation; 1 Ves. & B. 423; 
 Stover v. Boswell's Heir, 3 Dana (Ky.) 233; 
 Cooley v. Dewey, 4 Pick. (Mass.) 93, 16 Am. 
 Dec. 326; Barwick v. Miller, 4 Des. Eq. (S. 
 C.) 434. In many of the states, by statute, 
 bastards can inherit from and transmit to 
 their mothers real and personal estate under 
 some modifications; 2 Kent 213; Schoul. 
 Dom. Rel. *381 ; Pettus v. Dawson, 82 Tex. 
 18, 17 S. W. 714; see Stoltz v. Doering, 112 
 111. 234; Cox v. Rash, 82 Ind. 519; and in 
 Utah it can inherit from its father ; Cope v. 
 Cope, 137 U. S. 6S2, 11 Sup. Ct. 222, 34 L. 
 Ed. 832. Whether a person claiming an in- 
 heritance in" real estate is the lawful child of 
 the last owner is to be determined by the 
 lex rel sitae; Ross v. Ross, 129 Majsl 243, 37 
 Am. Rep. 321. 
 
 Nearly all of the states have statutory 
 provisions relative to bastardy proceedings 
 and as to the liability of the father crimi- 
 nally as well as to the care of the child. 
 
 In bastardy proceedings, evidence of im- 
 proper relations of the prosecutrix with oth- 
 er men than the defendant, but not during 
 the period of gestation, is incompetent; Ol- 
 son v. Peterson, 33 Neb. 35S, 50 N. W. 155. 
 
 Bastardy complaints are civil actions; 85 
 Me. 2S5 ; they abate on the death of the re- 
 spondent before trial and during the pend- 
 ency of the proceedings ; McKenzie v. Lom- 
 bard, 85 Me. 224, 27 Atl. 110. See Heir. 
 BASTARD EIGNE. Bastard elder. . 
 
 By the old English law, when a man had a bastard 
 son, and he afterwards married the mother, and by 
 her had a legitimate son, the first was called a bas- 
 tard eigne, or, as it is now spelled, aine, and the 
 second son was called puisne, or since born, or 
 sometimes he was called mulier puisne. 2 Bla. 
 Com. 248. 
 
 BASTARD A. A female bastard. Calvinus, 
 Lex. 
 
 BASTARDY. The offence of begetting a 
 bastard child. The condition of a bastard.
 
 BASTARDY PROCESS 
 
 331 
 
 BATTl.KY 
 
 BASTARDY PROCESS. The statutory 
 mode of proceeding against the putative fa- 
 ther of a bastard to secure a proper mainte- 
 nance for the bastard. 
 
 BASTON. In Old English Law. A staff 
 or club. 
 
 In some old English statutes the servants or of- 
 ficers of the wardens of the fleet are so called, be- 
 cause they attended the king's courts with a red 
 staff. See Justices of Trail Baston. 
 
 BATTEL. See Wager of Battel. 
 
 BATTERY. Any unlawful beating, or oth- 
 er wrongful physical violence or constraint, 
 inflicted on a human being without his con- 
 sent. 2 Bish. Cr. L. § 71 ; Clark, Cr. L. 199 ; 
 Long v. Rogers, 17 Ala. 540; Pike v. Han- 
 son, 9 N. 11. 491. • 
 
 An unlawful touching the person of an- 
 other by the aggressor himself, or any other 
 substance put in motion by him ; Kirland v. 
 State, 43 Ind. 153, 13 Am. Rep. 3S6. The 
 slightest touching of another in anger is a 
 battery ; Goodrum v. State, 60 Ga. 511. 
 
 It must be either wilfully committed, or 
 proceed from want of due care ; Stra. 596 ; 
 Plowd. 19 ; Bullock v. Babcock, 3 Wend. (N. 
 Y.) 391. Hence an injury, be it ever so small, 
 done to the person of another in an angry, 
 spiteful, rude, or insolent manner ; Com. v. 
 Wing, 9 Pick. (Mass.) 1, 19 Am. Dec. 347; 
 as by spitting in his face; 6 Mod. 172; or 
 on his body ; 1 Swint. 597 ; or any way 
 touching him in anger; 1 Russell, Cr. 751; 
 Johnson v. State, 17 Tex. 515 ; or throwing 
 water on him ; 3 N. & P. 564 ; or violently 
 jostling him ; see 4 H. & N. 481 ; or where 
 one riding a bicycle recklessly runs against 
 a person standing with his back partially to- 
 wards him, when by the exercise of slight 
 care it could be avoided ; Mercer v. Corbin, 
 117 Ind. 450. 20 N. E. 132, 3 L. R. A. 221, 10 
 Am. St. Rep. 76; is a battery in the eye of 
 the law; 1 Hawk. PI. Cr. 263. And any- 
 thing attached to the person partakes of its 
 inviolability: if, therefore, A strikes a cane 
 in the hands of B, it is a battery ; Respub- 
 lica v. De Longchamps, 1 Dall. (U. S.) 114, 1 
 L. Ed. 59; State v. Davis, 1 Hill (S. C.) 46; 
 Rich v. Hogeboom, 4 Denio (N. Y.) 453 ; Unit- 
 ed States v. Ortega, 4 Wash. C. C. 534, Fed. 
 Cas. No. 15,971. Whether striking a horse is 
 striking the driver, see Kirland v. State, 43 
 Ind. 146, 13 Am. Rep. 3S6. 
 
 A battery may be justified on various ac- 
 counts. 
 
 As a salutary mode of correction. A par- 
 ent may correct his child (though if done to 
 excess, it is battery) ; Com. v. Coffey, 121 
 Mass. 66; Neal v. State, 54 Ga. 2S1 ; Smith 
 v. Slocum. 62 111. 354; a guardian his ward; 
 Stanfield v. State, 43 Tex. 167 ; a master his 
 apprentice; 24 Edw. IV.; Com. v. Randall, 
 4 Gray (Mass.) 36 ; State v. Pendergrass, 19 
 N. C. 365, 31 Am. Dec. 416; a teacher his 
 scholar, within reason : State v. Mizner, 45 
 la. 24S, 24 Am. Rep. 769 ; State v. Alford, 6S 
 
 N. C. 322; Starr v. Liftchild, 40 I 
 Y.) 511; Marlsbary v. State, 10 Ind. App. 21. 
 :;T X. E. 558; and a superior oi'i<-er, one un- 
 der his command ; Keihv. 136 ; Buller, X. P. 
 19; Bee, Adm. 161; Flemming v. Ball, 1 
 Bay (S. C.) 3; Brown v. Howard, 14 Johns. 
 (X. Y.) 119; Sampson v. Smith, 15 I 
 365. And see Cowp. 173; Hannen v. 
 15 Mass. 347; 3 C. & K. 112; but a mi 
 ordinarily, not his servant; Com. v. Baird, 
 1 Aslun. (Pa.) 267; Davis v. State, 6 
 App. 133; and the mate of a Lt has 
 
 il right to enforce his orders by 
 ing one of the crew; The General Rocker, 
 35 Fed. 152. See Assault; Beat; I 
 tion. Doubtless these cases, or some of 
 them, would hardly now be followed. 
 
 As a means of preserving the peace, in the 
 exercise of an office, under process of court, 
 and in aid of an authority at law. See Ar- 
 rest. 
 
 As a necessary means of defence of the 
 person against the plaintiffs assaults in the 
 following instances: in defence of himself, 
 his wife, 3 Salk. 46, his child, and his serv- 
 ant, Ow. 150 (hut see 1 Salk. 1<)7) ; but he 
 is not justified in using force against a man 
 to prevent his wife leaving him at the per- 
 suasion of such other ; State v. Weathers, 98 
 N. C. 6S5, 4 S. E. 512. So, likewise, a person 
 may defend any member of his family 
 against an assault as he could himself, the 
 wife may justify a battery in defending her 
 husband, the child its parent, and the serv- 
 ant his master; 3 Salk. 46; Com. v. Malone, 
 114 Mass. 295; Smith v. Slocum. 62 111. 354; 
 Patten v. People, IS Mich. 314, 100 Am. Dec. 
 173; State v. Greer, 22 W. Va. 800; Staten 
 v. State, 30 Miss. 619; Webb, Poll. Torts. 
 255. In these situations, the party need not 
 wait until a blow has been given ; for then 
 he might come too late, and be disabled from 
 warding off a second stroke or from protect- 
 ing the person assailed. Care, however, 
 must be taken that the battery do not exceed 
 the bounds of necessary defence and protec- 
 tion ; for it is only permitted as a means to 
 avert an impending evil which might other- 
 wise overwhelm the party and not as a pun- 
 ishment or retaliation for the injurious at- 
 tempt ; Stra. 593; 1 Const. S. C. 34; Wat- 
 rous v. Steel. 4 Yt. 629, 24 Am. Dec. 628; 
 Shain v. Markham. 4 J. J. Marsh. (Ky.) 578, 
 20 Am. Dec. 232; Poll. Toils 255. The de- 
 gree of force necessary to repel an assault 
 will naturally depend upon, and he pi 
 tioned to, the violence of the assailant; but 
 with this limitation any degree is justifia- 
 ble; 1 Ld. Raym. 177; Young v. State, 11 
 Humphr. (Tonn.) 200; Shorter v. People. 2 
 X. Y. 193, 51 Am. Dec. 286; Stewart v. - 
 1 Ohio St. 66; Holmes v. State. 23 Ala. 17; 
 Carroll v. State. 23 Ala. 28, 58 Am. Dec. 2S2 ; 
 Rapp v. Com.. 14 B. Monr. (Ky.) 614; Camp- 
 bell v. People, 16 111. 17, 61 Am. Dec. 49 ; 
 Mouroe v. State, 5 Ga. 85.
 
 BATTERY 
 
 332 
 
 BAWDY-HOUSE 
 
 Evidence justifying an assault and battery 
 is not admissible under a general denial ; 
 Hathaway v. Hatchard, 1G0 Mass. 296, 33 N. 
 
 B. 857. 
 
 A battery may likewise be justified in tbe 
 necessary defence of one's property ; State 
 v. Miller, 12 Vt 437; Filkins v. People, G9 
 N. Y. 101, 25 Am. Rep. 143. If tbe plaintiff is 
 in tbe act of entering peaceably upon the de- 
 fendant's land, or, having entered, is discov- 
 ered, not committing violence, a request to 
 depart is necessary in the first instance; 2 
 Salk. 641 ; Abt v. Burgheim, 80 111. 92 ; see 
 Low v. Elwell, 121 Mass. 309, 23 Am. Rep. 
 272; Townsend v. Briggs, 99 Cal. 4S1, 34 
 Pac. 116; and if the plaintiff refuses, the 
 defendant may then, and not till then, gently 
 lay hands upon the plaintiff to remove him 
 from the close, and for this purpose may use, 
 if necessary, any degree of force short of 
 striking the plaintiff, as by thrusting him 
 off-; Skinn. 28. See Everton v. Esgate, 24 
 Neb. 235, 38 N. W. 794. If the plaintiff re- 
 sists, the defendant may oppose force to 
 force; Com. v. Clark, 2 Mete. (Mass.) 23; 1 
 
 C. & P. 6. But if the plaintiff is in the act of 
 forcibly entering upon the land, or, having 
 entered, is discovered subverting the soil, 
 cutting down a tree, or the like, 2 Salk. 641, 
 a previous request is unnecessary, and the 
 defendant may immediately lay hands upon 
 the plaintiff ; 8 Term 78. A man may justify 
 a battery in defence of his personal property 
 without a previous request, if another forci- 
 bly attempt to take away such property ; 2 
 Salk. 641. One from whom property has 
 been wrongfully taken may regain the mo- 
 mentarily interrupted possession by the use 
 of reasonable force, especially after demand- 
 ing possession; Com. v. Donahue, 148 Mass. 
 529, 20 N. E. 171, 2 L. R. A. 623, 12 Am. St. 
 Rep. 591. 
 
 BATTONIER. In French and Canadian 
 law, a member of the bar selected as the 
 head of the bar. 
 
 BATTURE (Fr. shoals, shallows). An 
 elevation of the bed of a river under the sur- 
 face of the water; but it is sometimes used 
 to signify the same elevation when it has 
 risen above the surface. Morgan v. Living- 
 ston, 6 Mart. (O. S.) 19, 216. See Municipal- 
 ity No. 2 v. Orleans Cotton Press, 18 La. 123, 
 36 Am. Dec. 624; Hollingsworth v. Chaffe, 
 33 La. Ann. 551. 
 
 The term battures Is applied principally to cer- 
 tain portions of the bed of the river Mississippi, 
 which are left dry when the water Is low, and are 
 covered again, either in whole or in part, by the an- 
 nual swells. 
 
 If it rises high, to be susceptible of own- 
 ership it does not pass in a grant of the ad- 
 jacent land ; Producers' Oil Co. v. Hanszen, 
 132 La. 691, 61' South. 754. 
 
 BAWDY-HOUSE. A house of ill-fame, 
 kept for the resort and unlawful commerce 
 
 of lewd people of both sexes. State v. Ev- 
 ans, 27 N. C. 603. See House of III Fame. 
 
 BAY. An enclosure, or other contrivance, 
 to keep in the water for the supply of a mill, 
 so that the water may be able to drive the 
 wheels of such mill. Stat 27 Eliz. c. 19. 
 (This is generally called a forebay.) 
 
 A bending or curving of the shore of the 
 sea or of a lake, so as to form a more or less 
 inclosed body of water. State v. Town of 
 Gilmanton, 14 N. H. 477. 
 
 BAY WINDOW. A window projecting 
 from the wall of a building so as to form 
 a recess or bay within and, properly speak- 
 ing, rising from the ground or basement, with 
 straight sides only; but the term is also or- 
 dinarily applied to such projecting windows 
 with curved sides, properly called bow win- 
 dows, and also to projecting windows sup- 
 ported from the building, above the ground, 
 properly called oriel windows. 
 
 The footways of streets being under mu- 
 nicipal control, the authorities may deter- 
 mine the extent to which the sidewalks may 
 be obstructed by such projections beyond the 
 building line ; their erection will not be en- 
 joined by a court of equity if it appear that 
 they will cause no appreciable injury, either 
 by the finding of the master to that effect; 
 Livingston v. Wolf, 136 Pa. 519, 20 Atl. 551, 
 20 Am. St. Rep. 936; or from the affidavits 
 submitted on an application by the attorney- 
 general to prevent the erection as a public 
 nuisance; Gray v. Baynard, 5 Del. Ch. 499. 
 Equity will not interfere in such cases at 
 suit of a private person ; Blanchard v. Rey- 
 burn, 1 W. N. C. (Pa.) 529 ; but will at suit of 
 the attorney-general to prevent the erection 
 of bay windows extending over the street; 
 Commonwealth v. Harris, 10 W. N. C. (Pa.) 
 10; Com. v. Reimer, 39 Leg. Int. (Pa.) 108; 
 and a second story bay window is a nuisance 
 and will be restrained; Appeal of Reimer, 
 100 Pa. 182, 45 Am. Rep. 373. 
 
 BAYOU. A stream which is the outlet of 
 a swamp near the sea. Applied to the creeks 
 in the lowlands lying on the Gulf of Mexico. 
 
 BEACH. See Foreshore; Sea-Shore. 
 
 BEACONAGE. Money paid for the main- 
 tenance of a beacon. Comyns, Dig. Naviga- 
 tion (H). 
 
 BEADLE (Sax. Beodan, to bid). A 
 church servant chosen by the vestry, whose 
 business it is to attend the vestry, to give no- 
 tice of its meetings, to execute its orders, to 
 attend upon inquests, and to assist the con- 
 stables. See Bedel. 
 
 BEARER. One who bears or carries a 
 
 thing. 
 
 If a bill or note be made payable to bear- 
 er, it will pass by delivery only, without in- 
 dorsement; and whoever fairly acquires a 
 right to it may maintain an action against 
 the drawer or acceptor.
 
 BEARER 
 
 333 
 
 BEAUPLEADER 
 
 It has been decided that the bearer of a 
 bank note, payable to bearer, is not an as- 
 signee of a chose in action within the elev- 
 enth section of the judiciary act of 1789, c. 
 20, limiting the Jurisdiction of the circuit 
 court ; Wood v. Dunnuer, 3 Mas. 308, Fed. 
 Cas. No. 17,944. 
 
 BEARERS. Such as bear down or oppress 
 others; niaintainers. 
 
 BEARING DATE. Words frequently used 
 in pleading and conveyancing to introduce 
 the date which has been put upon an in- 
 strument. 
 
 When in a declaration the plaintiff alleges 
 that the defendant made his promissory note 
 on such a day, he will not be considered as 
 having alleged that it bore date on that day, 
 so as to cause a variance between the dec- 
 laration and the note produced bearing a dif- 
 ferent date ; 2 Greenl. Ev. § 1G0 ; 2 Dowl. & 
 L. 759. 
 
 BEAST. Any four-footed animal which 
 may be used for labor, food, or sport; as 
 opposed to man ; any irrational animal. 
 Webst A cow is a beast; Taylor v. State, 6 
 Humph. (Tenn.) 285 ; and so is a horse ; Win- 
 frey v. Zimmerman, 8 Bush (Ky.) 5S7 ; and 
 a hog ; State v. Enslow, 10 la. 115 ; but a 
 dog was held not to be ; U. S. v. Gideon, 1 
 Minn. 292 (Gil. 226); but see Morewood v. 
 Wakefield, 133 Mass. 241. 
 
 BEASTS OF THE CHASE. Properly, the 
 buck, doe, fox, martin, and roe, but in a 
 common and legal sense extending likewise 
 to all the beasts of the forest, which beside 
 the others are reckoned to be the hind, hare, 
 bear, and wolf, and, in a word, all wild 
 beasts of venery or hunting. Co. Litt. 233 ; 
 2 Bla. Com. 39. See Animal. 
 
 BEASTS OF THE FOREST. See Beasts 
 
 OF THE ClIASE. 
 
 BEASTS OF THE WARREN. Hares, con- 
 eys, and roes. Co. Litt. 233; 2 Bla. Com. 39. 
 
 BEAT or BEATING. To strike or hit re- 
 peatedly, as with blows. 
 
 To beat, in a legal sense, is not merely to 
 whip, wound, or hurt, but includes any un- 
 lawful imposition of the hand or arm. The 
 slightest touching of another in anger is a 
 battery. Goodrum v. State, GO Ga. 511. 
 
 The beating of a horse by a man refers to 
 the infliction of blows; Com. v. McClellan, 
 101 Mass. 35. See Battery. 
 
 BEATING OF THE BOUNDS. An an- 
 cient custom in England by which, once a 
 year, the minister, etc., of a parish walked 
 about its boundaries to preserve a recollec- 
 tion of them. Cent. Diet. (Perambulation). 
 
 BEAUPLEADER (L. Fr. fair pleading). A 
 writ of prohibition directed to the sheriff or 
 another, directing him not to take a fine for 
 beaupleader. 
 
 There was anciently a fine imposed called a fine 
 for beaupleader, which Is explained by Coke to 
 
 have been originally Imposed for bad pleading. 
 Coke, 2d Inst. 123. It was set at the will of th:- 
 judge of the court, and reduced to certainty by con- 
 sent, and annually paid. Com. Dig. Prerogative (D, 
 52). The statute of Marlebridge (52 Hen. HI.) c. 11, 
 enacts, that neither in the circuit of Justices, nor in 
 counties, hundreds, or courts-baron, any fines 6hall 
 be taken for lair pleading; namely, for not plead- 
 ing fairly or aptly to the purpose. Upon this statute 
 this writ was ordained, directed to the sheriff, bail- 
 iff, or him who shall demand the fine; and it is a 
 prohibition or command not to do it; Nov. 
 Brev. 596; Fitzh. N. B. 270 a; Hall, Hist. Comm. 
 Law, c. 7. Mr. Reeve explains it as a fine paid for 
 the privilege of a fair hearing; 2 Reeve, Eng. Law 
 70. This latter view would perhaps derive some 
 confirmation from the connection in point of tlmf 
 of this statute with Magna Carta, and the resem- 
 blance which the custom bore to the other customs 
 against which the clause in the charter of nulli ven- 
 demus, etc., was directed. See Com. Dig. Frrro"- 
 ative (D, 51, 52); Cowell ; Co. 2d Inst. 122; Crabb. 
 Eng. Law 150. 
 
 BED. The channel of a stream; the part 
 between the banks worn by the regular flow 
 of the water. See Howard v. Ingersoll, 13 
 How. (U. S.) 420, 14 L. Ed. 189. 
 
 The phrase divorce from bed and board. 
 contains a legal use of the word synonymous 
 with its popular use. 
 
 BED -ALE or BID -ALE. A friendly as- 
 signation for neighbors to meet and drink 
 at the house of newly married persons or oth- 
 er poor people and then for the guests to 
 contribute to the housekeepers. Cowell. 
 
 BEDEH0USE. A hospital or almshouse 
 for bedesmen or poor people who prayed for 
 their founders and benefactors : from the 
 Saxon biddan, to pray. Cunningham. 
 
 BEDEL. In English Law. A crier or mes- 
 senger of court, who summons men to ap- 
 pear and answer therein. Cowell. An in- 
 ferior officer in a parish or liberty, or in an 
 institution, such as the Blue Coat School in 
 London. 
 
 A subordinate officer of a university who 
 walked with a mace before one of the of- 
 ficers on ceremonial occasions and perform- 
 ed other minor duties ordinarily. 
 
 A herald to make public proclamations. 
 Cent. Diet. 
 
 The more usual spelling is Beadle, q. v. 
 
 BEDELARY. The Jurisdiction of a bedel, 
 
 as a bailiwick is the jurisdiction of a bail- 
 iff. Co. Litt. 234 b; Cowell. 
 
 BEDEREPE. A service which certain ten- 
 ants were anciently bound to perforin, as to 
 reap their landlord's corn at harvest Said 
 by Whishaw to be still in existence in some 
 parts of England. Blount; Cowell. 
 
 BEDEWERI. Those which we now call 
 banditti; profligate and excommunicated 
 persons. Cunningham. 
 
 BEEF. This word is used frequently to 
 mean an animal of the cow species and not 
 beef prepared for market. A beef or one 
 beef is an expression frequently used to des- 
 ignate an animal fit for use as beef, instead
 
 BEEF 
 
 334 
 
 BELIEF 
 
 of designating it as a steer, a heifer, an ox, 
 or a cow. Davis v. State, 40 Tex. L35. 
 
 BEER. A malt liquor of the lighter sort 
 and differs from ordinary beer or ales, not 
 so much in its ingredients as in its processes 
 of fermentation. 
 
 BEES are animals ferce natural while un- 
 reclaimed; Wallis v. -Mease, 3 Binn. (Pa.) 
 546; Cock v. Weatherby, 5 Smedes & M. 
 (Miss.) 333. See Inst. 2. 1. 14; Dig. 41. 1. 5. 
 2; Gillet v. Mason, 7 Johns. (X. Y.) 16; 2 
 Bla. Com. 302. If while so unreclaimed they 
 take up their abode in a tree, they belong 
 to the owner of the soil, but not so if re- 
 claimed and they can be identified; Goff v. 
 Kilts. 15 Wend. (N. Y.) 550. Sec Ferguson 
 v. Miller, 1 Cow. (N. Y.) 243, 13 Am. Dec. 
 510 ; Idol v. Jones, 13 N. C. 162. See Ani- 
 mal. 
 
 BEGGAR. One who obtains his liveli- 
 hood by asking alms. The laws of several 
 of the states punish begging as an offence. 
 See Tkamp; Vagrant. 
 
 BEGIN. To originate. To come into ex- 
 istence. As to the right to begin at a trial, 
 see Opening and Closing. 
 
 BEGOTTEN. "To be begotten" means the 
 same as "begotten," embracing all those 
 whom the parent shall have begotten during 
 his life, quos procreaverit. 1 Maule & S. 135 ; 
 Wager v. Wager, 1 S. & R. (Pa.) 377. 
 
 BEGUN. In a statute providing that 
 nothing contained in it should affect prose- 
 cutions "begun" under any existing act, the 
 word "begun" means both those which have 
 already been begun and those which may 
 hereafter be begun. Lang v. U. S., 133 Fed. 
 201, 66 C. C. A. 255. 
 
 BEHALF. Benefit, support, defence, or 
 advantage. 
 
 BEHAVIOR. Manner of having, holding, 
 or keeping one's self ; carriage of one's self, 
 with respect to propriety, morals, and the 
 requirements of law. Surety to be of good 
 behavior is a larger requirement than surety 
 to keep the peace; Dalton, c. 122; 4 Burns, 
 Just. 355. See Good Behavior. 
 
 BEHETRIA. In Spanish Law. Lands sit- 
 uated in districts and manors in which the 
 inhabitants had the right to select their 
 own lords. * 
 
 BEHOOF (Sax.). Use; service; profit; 
 advantage. It occurs in conveyances. 
 
 BELIEF. Conviction of the mind, arising 
 not from actual perception or knowledge, but 
 by way of inference, or from evidence re- 
 ceived or information derived from others. 
 See Deceit. 
 
 Belief may evidently be stronger or weaker 
 according to the weight of evidence adduced 
 in favor of the proposition to which belief is 
 granted or refused ; Thompson v. White, 4 
 S. & R. (Pa.) 137; 1 Greenl. Ev. §§ 7-13. See 
 
 1 Stark. Ev. 41; 2 Powell, Mortg. 555; 1 
 Ves. Ch. Or,; 12 id. SO; Dy. 53; 2 W. Bla. 
 SSI; Carmalt v. Post, 8 Watts (Pa.) 406; 
 Bennifield v. Hypres, 3S Ind. 504; Hatch v. 
 Carpenter, 9 Gray (Mass.) 274; Humphreys 
 v. McCall, 9 Cal. 02, 70 Am. Dec. 621; Ven- 
 tres v. Smith, 10 Pet. (U. S.) 171, 9 L. Ed. 
 382. 
 
 BELLIGERENCY. In International Law. 
 The status of de facto statehood attributed 
 to a body of insurgents, by which their hos- 
 tilities are legalized. Before they can be 
 recognized as belligerents they must have 
 some sort of political organization and be 
 carrying on what in international law is re- 
 garded as legal war. There must be an arm- 
 ed struggle between two political bodies, each 
 of which exercises de facto authority over 
 persons wdthin a determined territory, and 
 commands an army which is prepared to ob- 
 serve the ordinary laws of war. It is not 
 enough that the insurgents have an army ; 
 they must have an organized civil authority 
 directing the army. 
 
 The exact point at which revolt or insur- 
 rection becomes belligerency is often ex- 
 tremely difficult to determine; and belliger- 
 ents are not usually recognized by nations 
 unless they have some strong reason or ne- 
 cessity for doing so, either because the ter- 
 ritory where the belligerency is supposed to 
 exist is contiguous to their own, or because 
 the conflict is in some way affecting their 
 commerce or the rights of their citizens. 
 Thus in 1S75 President Grant refused to rec- 
 ognize the Cubans as belligerents, although 
 they had been maintaining hostilities for 
 eight years, because they had no real and 
 palpable political organization manifest to 
 the world, and because, being possessed of 
 no seaport, their contest was solely on land 
 and without the slightest effect upon com- 
 merce? Moore, Int. Law Dig. I, 196. One 
 of the most serious results of recognizing 
 belligerency is that it frees the parent coun- 
 try from all responsibility for what takes 
 place within the insurgent lines; Dana's 
 Wheaton, note 15, page 35. 
 
 When revolutionists have no organized po- 
 litical government and it becomes necessary 
 to recognize them in some way, a status of 
 insurgency (g. v.) is sometimes recognized. 
 In this way the parent state avoids the ne- 
 cessity of treating the insurgents as pirates 
 and third Powers obtain certain of the rights 
 of neutrals. In 1895 President Cleveland 
 recognized a status of insurgency in Cuba 
 and enjoined the observance of the Neutral- 
 ity Laws. Moore I, 242. See Hall, 6th ed. 
 31-42; Hershey 11S-123. 
 
 BELLIGERENT. In International Law. 
 As adj. and noun. Engaged in lawful war; 
 a state so engaged. In plural. A body of 
 insurgents who by reason of their temporary 
 organized government are regarded as con- 
 ducting lawful hostilities. Also, militia,
 
 BELLIGERENT 
 
 335 
 
 BENEFICE 
 
 corps of volunteers, and others, who although 
 not part of the regular army of the state, are 
 regarded as lawful combatants provided they 
 observe the laws of war; 4 II. C. 1907, arts. 
 1, 2. See War; Belligerency. 
 
 BELONG. To appertain to; to be the 
 property of. Property "belonging" to a per- 
 son has two general meanings: (1) ownership ; 
 (2) the absolute right of user. A road may 
 be said with perfect propriety to belong to a 
 man who has the right to use it as of right 
 although the soil does not belong to him ; 31 
 L. J. Ex. 227. See Fin I 
 
 It may also signify a legal residence. As, 
 the town to which a slave belongs is that 
 alone in which he has a legal settlement; 
 Columbia v. Williams, 3 Conn. 467. 
 
 BELOW. Inferior; preliminary. The 
 
 court below is the court from which a cause 
 has been removed. See Bail. 
 
 BENCH. A tribunal for the administra- 
 tion of justice. 
 
 The judges taken collectively, as distin- 
 guished from counsellors and advocates, who 
 are called the bar. 
 
 The term, indicating originally the seat of the 
 judges, came to denote the body of judges taken 
 collectively, and also the tribunal itself. The jus 
 band, says Spelman, properly belongs to the king's 
 judges, who administer justice in the last resort. 
 The judges of the inferior courts, as of the barons, 
 are deemed to judge piano pede, and are such as are 
 called in the civil law pcdanei judices, or by the 
 Greeks ^a/wM&raffrat, tnat is humi judicantes. 
 The Greeks called the seats of their higher judges 
 [MlfiaTa, and of their inferior judges ftadpa. The 
 Romans used the word sellce and tribunalia to des- 
 ignate the seats of their higher judges, and subsel- 
 lia to designate those of the lower. See Spelman, 
 Gloss. Bancus; 1 Reeve, Eng. Law 40, 4th ed. 
 
 "The court of common pleas in England was 
 formerly called Bancus, the Bench, as distinguished 
 from Bancus Regis, the King's Bench. It was also 
 called Communis Bancus, the Common Bench; and 
 this title is still retained by the reporters of the de- 
 cisions in the court of Common Pleas. Mention is 
 made in the Magna Charta 'de justiciariis nostris 
 de Banco,' which all men know to be the justices of 
 the court of Common Pleas, commonly called the 
 Common Bench, or the Bench." Viner, Abr. Courts 
 (n. 2). 
 
 BENCH WARRANT. An order issued by 
 or from a bench, for the attachment or ar- 
 rest of a person. It may issue either in case 
 of a contempt, or where an indictment has 
 been found. 
 
 BENCHERS. Seniors in the Inns of 
 Court, intrusted with their government. 
 
 They have the absolute and irresponsible 
 power of punishing a barrister of their Inn 
 guilty of misconduct, by either admonishing 
 •or rebuking him, by prohibiting him from 
 dining in the hall, or even by expelling him 
 from the bar. called disbarring. They may 
 also refuse admission to a student, or reject 
 his call to the bar. Wharton, Lex. But see 
 Barrister, as to the sole right of the judges 
 to admit to the bar and to debar. 
 
 See Inns of Court; Council of the Bab. 
 
 BENEFICE. An ecclesiastical preferment. 
 
 In its more extended sense, it Included any 
 such preferment; in a more limited sei 
 applies to rectories and vicarages only, 
 i ictum ; Simony. 
 
 BENEFICE DE DISCUSSION. 
 
 efit of Discussion. 
 
 See ben- 
 
 beneficial ASSOCIATIONS. Volun- 
 tary associations for mutual assistance in 
 need and sickness, and for the cure 
 of families of deceased members. Kiblack, 
 
 Ben. Soc. and Accid. Ins. These associa- 
 tions form in substance a very effectiv 
 tern of co-operative life insurance. The pay- 
 ment to the beneficiary is not a gift, but a 
 right arising from the contract of member- 
 ship, and when the conditions of membership 
 have been fulfilled may be enforced at law; 
 id. ch. xxvi. The suspension of a subordi- 
 nate lodL'e will not defeat a recovery unless 
 legally done; Young v. Grand Lodge of Sons 
 of Progress, 173 Pa. 302. 33 Atl. 1038. 
 
 In a suit for sick benefits the constitution 
 and by-laws of the society constitute the con- 
 tract between the parties, and the mode 
 which they provide to ascertain the right 
 to benefits must be pursued in order to re- 
 cover; Delaware Lodge No. 1, I. O. O. F., v. 
 Allmon, 1 Pennewill (Del.) 100. 39 Atl. 109a 
 When after a certificate had been i 
 under the law as it then stood payable at 
 death to a creditor (named), a subsequent 
 law prohibiting payment to other than rela- 
 tives or dependents of the insured could have 
 no retroactive effect nor compel him to d» -sit- 
 uate a new beneficiary; Emmons v. Supreme 
 Conclave, I. O. II., 6 Pennewill (Del.) 115, 
 63 Atl. 871; Peterson v. Gibson, 101 111. ::<;". 
 61 N. E. 127, 54 L. R. A. 836, 85 Am. St. Rep. 
 263; Sargent v. Knights of Honor. 158 Mass. 
 557, 33 N. E. 6H0; Mulderick v. Grand Lodge 
 of A. O. U. W., 155 Pa. 505, 26 Atl. 603; 
 Wist v. Grand Lodge A. O. U. W.. 22 Or. 
 271, 29 Pac. 610, 29 Am. St. Rep. 603; Had- 
 ley v. Queen City Camp No. 27, W. O. W., 
 1 Tenn. Ch. App. 413; Roberts v. Cohen, 60 
 App. Div. 259, 70 N. Y. Supp, -"7. The bene- 
 ficiary has not a vested right and a chance 
 could have been made by the member but 
 the legislation was intended to be pr 
 tive and could not proprio vifiorc disturb 
 existing relations; Hadley v. Queen City 
 Camp No. 27, W. O. W.. 1 Tenn. Ch. App. 433. 
 
 Where a statute authorizes a beneficial 
 association to issue certificates for the 
 fit of certain enumerated relatives or de- 
 pendents, and a person outside the speci- 
 fied classes is named in the certificate, that 
 fact will not avoid the right in the fund of 
 the beneficiaries designated by law; Royal 
 League v. Shields, 251 ill. 250, DO N. E. «5, 
 36 I . R. A. (N, s.i 208. A servant is not a 
 dependent; Grand Lodge A. O. V. W. of New 
 Jersey v. Candy. 63 N. J. Eq. 002. 53 Atl. 
 1 il': a mother, under certain facts, has been 
 held not to be; Elsey v. Odd Fellows Mut.
 
 BENEFICIAL ASSOCIATIONS 
 
 336 
 
 BENEFICIAL ASSOCIATIONS 
 
 Relief Ass'n, 142 Mass. 224, 7 N. E. 814; or 
 a brother*; Supreme Council American Le- 
 gion of Honor v. Smith, 45 N. J. Eq. 466, 
 17 Atl. 770; an adopted child may or may 
 not be a dependent, and the dependency will 
 not rest upon whether there has been a legal 
 adoption: Murphy v. Nowak, 223 111. 301, 79 
 N. E. 112, 7 L. R. A. (N. S.) 393. A person 
 who assisted a deceased member and took 
 care of him in his last illness was held not 
 to be a dependent; Groth v. Central Verein 
 der Gegenseitigen Unterstuetzungs Gesell- 
 schaft Germania, 95 Wis. 140, 70 N. W. 80; 
 a creditor is not; Skillings v. Benefit Ass'n, 
 146 Mass. 217, 15 N. E. 566 ; nor an illegiti- 
 mate child, even though the father had been 
 boarding with the mother and paying there- 
 for;. Lavigne v. Ligue des Patriotes, 178 
 Mass. 25, 59 N. E. 674, 54 L. R. A. 814, 86 
 Am. St. Rep. 460; Supreme Tent of Knights 
 of Maccabees of the World v. McAllister, 
 132 Mich. 69, 92 N. W. 770, 102 Am. St. Rep. 
 3S2; James v. Supreme Council of Royal 
 Arcanum, 130 Fed. 1014. Dependency for 
 favor or affection or companionship is held 
 to be excluded; Alexander v. Parker, 144 
 111. 366, 33 N. E. 1S3, 19 L. R. A. 1S7, where 
 an affianced wife was held not to be a 
 dependent; contra, McCarthy v. Supreme 
 Lodge. 153 Mass. 314, 26 N. E. S66, 11 L. R. 
 A. 144, 25 Am. St. Rep. 637. 
 
 It is held in some courts that a woman 
 is a dependent who in good faith lives with 
 a member in the belief that she is his wife, 
 although there is no legal marriage; Su- 
 preme Lodge, A. O. U. W., v. Hutchinson, 
 6 Ind. App. 399, 33 N. E. 816 ; Supreme Tent 
 of Knights of Maccabees of the World v. 
 McAllister, 132 Mich. 69, 92 N. W. 770, 102 
 Am. St. Rep. 382 ; contra, Severa v. Beranak, 
 138 Wis. 144, 119 N. W. 814. Where the 
 association has charter power to pay sums 
 to the family and heirs of deceased mem- 
 bers, a contract to pay to his legal represen- 
 tatives was construed to mean his heirs; 
 Harton's Estate, 213 Pa. 499, 62 Atl. 1058, 
 4 L. R. A. (N. S.) 939. 
 
 A failure to apportion the proceeds of a 
 benefit certificate between the beneficiaries 
 entitles one to the entire sum upon the oth- 
 er proving ineligible ; Cunat v. Supreme Tribe 
 of Ben Hur, 249 111. 448, 94 N. E. 925, 34 
 L. R. A. (N. S.) 1192, Ann. Cas. 1912A, 213. 
 
 For most purposes mutual benefit associa- 
 tions are insurance companies and certifi- 
 cates issued by them are policies of life in- 
 surance. There are, however, some essen- 
 tial differences, one of which is the power 
 on the part of the assured in mutual benefit 
 associations to change the beneficiary; Hol- 
 land v. Taylor, 111 Ind. 121, 12 N. E. 116. 
 In a policy of life insurance, the beneficiary 
 has a vested right. In a benevolent society 
 the beneficiary has no vested right in the 
 certificate before the death of the member; 
 Masonic Benevolent Ass'n v. Bunch, 109 Mo. 
 560, 19 S, W. 25. The certificates of such 
 
 associations are said to partake of the na- 
 ture of testamentary dispositions of prop- 
 erty; Woodruff v. Tilman, 112 Mich. 1S8, 70 
 N. W. 420. They may be disposed of by 
 will unless the rules of the society prohibit 
 it; Woodruff v. Tilman, 112 Mich. 188, 70 N. 
 W. 420; Catholic Ben. Ass'n v. Priest, 46 
 Mich. 429, 9 N. W. 481; High Court Catholic 
 Order of Foresters v. Malloy, 169 111. 58, 48 
 N. E. 392. The member may change the 
 beneficiary without the latter's consent; Ma- 
 sonic Ben. Ass'n v. Bunch, .109 Mo. 560, 19 
 S. W. 25 ; he may change as to a portion of 
 the insurance ; Woodruff v. Tilman, 112 
 Mich. 188, 70 N. W. 420; contra, McClure v. 
 Johnson, 56 la. 620, 10 N. W. 217. 
 
 If the by-laws point out the mode in which 
 the beneficiary may be changed, another 
 beneficiary can be substituted only in the 
 manner provided, and an attempt of the 
 member to dispose of the fund by will is 
 held ineffectual; Stewart v. Trustees of Col- 
 lege, 2 Den. (N. Y.) 409 (where the objection 
 was raised by the society); Holland v. Tay- 
 lor, 111 Ind. 121, 12 N. E. 116; Stephenson 
 v. Stephenson, 64 la. 534, 21 N. W. 19; Mc- 
 Carthy v. New England Order of Protection, 
 153 Mass. 314, 26 N. E. 866, 11 L. R. A. 144, 
 25 Am. St. Rep. 637; Fink v. Fink, 171 N. 
 Y. 616, 64 N. E. 506. Opposing this rule, it 
 is held that such a provision was for the 
 benefit of the association which might waive 
 it or insist upon it, and if waived by the 
 association, the member might change his 
 beneficiary by will; Splawn v. Chew, 60 Tex. 
 532; Kepler v. Supreme Lodge, 45 Hun (N. 
 Y.) 274. 
 
 Where no method of changing the bene- 
 ficiary is provided, a letter mailed to the 
 company directing the payment to a new 
 beneficiary completes the change; Hirschl v. 
 Clark, 81 la. 200, 47 N. W. 78, 9 L. R. A. 
 841; Fink v. Mutual Aid Society, 57 App. 
 Div. 507, 68 N. Y. Supp. SO. 
 
 Such association has power to amend its 
 by-laws so as to increase the assessments 
 on its members, where the existing rate 
 has proved inadequate, under charter au- 
 thority to provide for the payment of a cer- 
 tain death benefit to be secured by assess- 
 ment ; Reynolds v. Supreme Council of Royal 
 Arcanum, 192 Mass. 150, 78 N. E. 129, 7 L. 
 R. A. (N. S.) 1154, 7 Ann. Cas. 776 ; Gaut v. 
 Life Ass'n, 121 Fed. 403; Miller v. National 
 Council of Knights & Ladies of Security, 69 
 Kan. 234, 76 Pac. 830 ; contra, unless there 
 was an express agreement that a member 
 should be bound by future by-laws, varying 
 or modifying his contract; Covenant Mut. 
 Life Ass'n of Illinois v. Kentner, 1S8 111. 
 431, 58 N. E. 966; Pearson v. Indemnity Co., 
 114 Mo. App. 283, 83 S. W. 588; Wright v. 
 Knights of Maccabees of the World, 48 Misc. 
 558, 95 N. Y. Supp. 996 (though the proposed 
 increase was necessary to keep the associa- 
 tion solvent). A member cannot be assessed 
 for losses that occurred prior to his mem-
 
 BENEFICIAL ASSOCIATIONS 
 
 337 
 
 BENEFICIAL POWER 
 
 bership unless he had so agreed; Clark v. 
 Traveling Men's Ass'n (la.) 135 N. W. 1114, 
 42 L. R. A. (N. S.) 631; or for the creation 
 of an emergency fund; id. 
 
 If at the time one becomes a member of a 
 beneficial order, its constitution and by-laws 
 expressly reserve the right to make amend- 
 ments thereto, he is bound by a subsequent 
 amendment injuriously affecting him ; Rob- 
 inson v. Templar Lodge, 117 Cal. 370, 40 Pac. 
 170, 59 Am. St. Rep. 193. Such an amend- 
 ment must be reasonable; Knights Templars' 
 & .Masons' Life Indemnity Co. v. Jarman, 104 
 Fed. 638, 44 C. C. A. 93; Modern Woodmen 
 of America v. Wi eland, 100 111. App. 340; 
 Smith v. Supreme Lodge, 83 Mo. App. 512; 
 O'Neill v. Supreme Council, 70 N. J. L. 410, 
 57 Atl. 403, 1 Ann. Cas. 422. The power to 
 make it, not being a power to destroy the 
 contract rights of the members ; Parish v. 
 Produce Exchange, 169 N. Y. 34, 61 N. E. 
 977, 56 L. R. A. 140; but where it makes so 
 radical a change as to amount to a repudia- 
 tion of a contract it will be void ; Beach v. 
 Supreme Tent, 177 N. Y. 100, 60 N. E. 281. 
 The voluntary acceptance of by laws pro- 
 viding for the imposition of coercive fines 
 does not make such fines legal and the 
 standing threat of their imposition may prop- 
 erly be classed with the ordinary threat of 
 suits upon groundless claims; Boutwell v. 
 Marr, 71 Vt. 1, 42 Atl. 607, 43 L. R. A. 803, 
 76 Am. St. Rep. 746. 
 
 A discussion of the effect of an erroneous 
 description of the beneficiary in a certificate 
 by Cyrus J. Wood, 57 Cent L. J. 383, reaches 
 the conclusion that the courts are inclined to 
 take into consideration the benevolent charac- 
 ter and purpose of these societies and, in or- 
 der to effectuate this purpose, liberally con- 
 strue by-laws and statutes, giving a broad 
 interpretation to such terms as relatives, 
 families and dependents, so that one wrong- 
 fully described as a relative may obtain the 
 benefit on proving dependency, and if the 
 beneficiary cannot be brought within the pre- 
 scribed limits, those who are within the 
 rules may receive the benefit as against both 
 the insured and the society since a misde- 
 scription seems to be ignored and the rights 
 of all concerned are decided according to 
 the benevolent purpose of the society with 
 regard to the real relation of the appointed 
 beneficiary to the deceased. See 17 Harv. 
 L. Rev. 211. 
 
 See In re Harton's Estate, 213 Pa. 499, 62 
 Atl. 1058, 4 L. R. A. (N. S.) 939; Railboad 
 Relief Funds. 
 
 See Association ; Family. 
 
 BENEFICIAL INTEREST. Profit, bene- 
 fit, or advantage resulting from a contract, 
 or the ownership of an estate as distinct 
 from the legal ownership or control. 
 
 A cestui que trust has the beneficial interest In a 
 trust estate while the trustee has the legal estate. 
 If A makes a contract with B to pay C a sum of 
 money, C has the beneficial interest in the contract. 
 
 Bouv.— 22 
 
 BENEFICIAL POWER. It is used in 
 Kew York and has for its object the donee 
 of the power, and is to be executed solely 
 for his benefit, in contradistinction to 
 powers, which have for their obje 
 other than the donee and are to be ex. 
 solely for their benefit. Jennings v. Conboy, 
 73 N. Y. 234. 
 
 BENEFICIAL SOCIETIES. 
 
 cial Associations. 
 
 See Beneei- 
 
 BENEFICIARY. A term suggested by 
 Judge Story as a substitute for cestui Que 
 trust, and adopted to some extent. 1 Story, 
 Eq. Jur. § 321. 
 
 The person named in a policy of insurance 
 to whom the insurance is payable upon the 
 happening of the event insured against. 
 
 The beneficiary of a contract is not a ces- 
 tui que trust; 12 Harv. L. Rev. 564. 
 
 BENEFICIO PRIM0 (more fully bencficio 
 prime- ccclcxitistico habendo). A writ direct- 
 ed from the king to the chancellor, com- 
 manding him to bestow the benefice which 
 shall first fall in the King's gift, above or 
 under a certain value, upon a particular and 
 certain person. Reg. Orig. 307. 
 
 BENEFICIUM (Lat). A portion of land 
 or other immovable thing granted by a lord 
 to his followers for their stipend or mainte- 
 nance. 
 
 It originally meant a "benefaction" from 
 the king, usually to a noble. The analogous 
 English institution was the laen or loan ; 
 Maitl. Domesd. Book & Beyond 301. 
 
 In the early feudal times, grants were made to 
 continue only during the pleasure of the grantor, 
 which were called tnuncra; but soon afterwards 
 these grants were made for life, and then they as- 
 sumed the name of beneficia. Dalrymple, Feud. Pr. 
 199. Pomponius Laetus, as cited by Hotoman, De 
 Fcudis, c. 2, says, "That it was an ancient custom, 
 revived by the Emperor Constantine, to give lands 
 and villas to those generals, prefects, and tribunes 
 who had grown old in enlarging the empire, to sup- 
 ply their necessities as long as they lived, which 
 they called parochial parishes, etc. But between 
 (feuda) fiefs or feuds and (parochias) parishes 
 there was this difference, that the latter were given 
 to old men, veterans, etc., who, as they deserved 
 well of the republic, were sustained the rest of their 
 life (publico bencficio) by the public benefaction; 
 or, if any war afterwards arose, they were called 
 out not so much as soldiers as leaders (magistri 
 militum). Feuds (feuda), on the other hand, were 
 usually given to robust young men who could sus- 
 tain the labors of war. In later times, the word 
 parochia was appropriated exclusively to ecclesias- 
 tical persons, wbile the word beneftcium (militare) 
 continued to be used in reference to military fiefs 
 or fees. 
 
 A general term applied to ecclesiastical 
 livings. 4 P.la. Com. 107. See Benefice. 
 In Civil Law. Any Favor or privilege. 
 
 BENEFICIUM CLERICALE. Benefit of 
 clergy, which see. 
 
 BENEFICIUM C MPETENTI -€. In 
 
 Scotch Law. The privilege of retaining a 
 competence belonging to the obligor in a 
 gratuitous obligation. Such a claim consti-
 
 BENEFICIUM C0MPETENTI2E 
 
 338 
 
 BENEFIT OF CLERGY 
 
 tutes a good defence in part to an action on 
 the bond. Paterson, Comp. 
 
 In Civil Law. The right which an insol- 
 vent debtor had, among the Romans, on mak- 
 ing cession of his property for the benefit of 
 his creditors, to retain what was required 
 for him to live honestly according to his con- 
 dition. 7 Toullier, n. 258. 
 
 A defendant's privilege of being condemn- 
 ed only in an amount which he could pay 
 without being reduced to a state of destitu- 
 tion. Sand. Justinian iv. vi. 37. 
 
 BENEFICIUM DIVISIONIS. See Bene- 
 fit of Division. 
 
 BENEFICIUM INVENTARII. See Ben- 
 efit of Inventory. 
 
 BENEFICIUM ORDINIS. In Scotch and 
 Civil Law. The privilege of the surety al- 
 lowing him to require that the creditor shall 
 take complete legal proceedings against the 
 debtor to exhaust him before he calls upon 
 the surety. 1 Bell, Com. 347. 
 
 BENEFIT. Profit, fruit, or advantage. 
 
 The acceptance of the benefits of a con- 
 tract estops a party from denying its validi- 
 ty ; City of St. Louis v. Davidson, 102 Mo. 
 149, 14 S. W. 825, 22 Am. St. Rep. 764; 
 Spencer v. Jennings, 139 Pa. 198, 21 Atl. 73 ; 
 Wood v. Bullard, 151 Mass. 324, 25 N. E. 67, 
 7 L. R. A. 304; Palmerton v. Hoop, 131 Ind. 
 23. 30 N. E. 874; Gladstone Exch. Bank v. 
 Keating, 94 Mich. 429, 53 N, W. 1110; St. 
 Louis & S. F. R. Co. v. Foltz, 52 "Fed. 627. 
 
 BENEFIT ASSOCIATION. See Benefi- 
 cial Associations. 
 
 BENEFIT OF CESSION. In Civil Law. 
 The release of a debtor from future impris- 
 onment for his debts, to which he is entitled 
 upon the surrender of his property for the 
 benefit of his creditors. Pothier, ProcH. Civ. 
 part 5, c. 2, § 1. 
 
 This was something like a discharge under the 
 
 insolvent laws, which releases the person of the 
 
 debtor, but not goods he acquires afterwards. See 
 Bankrupt; Cessio Bonokum; Insolvent. 
 
 BENEFIT OF CLERGY. Originally it 
 meant that an ordained clerk charged with 
 felony could be tried only in the Ecclesiasti- 
 cal Court. But, before the end of Henry 
 III.'s reign, the king's court, though it de- 
 livered him to the Ecclesiastical Court for 
 trial, took a preliminary inquest as to his 
 guilt or innocence. The latter court tried 
 him by compurgation. It could sentence him 
 to degradation, imprisonment or whipping. 
 Benefit of clergy did not apply to treason, 
 breach of forest laws, trespasses or misde- 
 meanors. In time it changed and became a 
 complicated series of rules exempting cer- 
 tain persons from punishment for certain 
 criminal offences. It was extended to secu- 
 lar clerks, then to all who could read. In 
 1705 this requirement was abolished. Till 
 1<>!)2 a woman commoner could not claim it. 
 By act in 14S7, all persons except those in 
 
 orders were, if convicted of a clergyable fel- 
 ony, branded and disabled from claiming the 
 privilege a second time. A peer, even if he 
 could not read, had the privilege (1547). 
 By act in 1717, persons (not peers or clerks 
 in orders) were if convicted of clergyable 
 larcenies transported for 7 years. Gradual- 
 ly the number of non-clergyable offences was 
 increased and new offences, when created, 
 were made non-clergyable. It was abolished 
 in England in 1827. 1 Holdsw. H. E. L. 381. 
 
 Kelyng reports, "At the Lent Assizes for "Winches- 
 ter (18 Car. II.) the clerk appointed by the bishop 
 to give clergy to the prisoners, being to give it to 
 an old thief, I directed him to deal clearly with me, 
 and not to say legit in case he could not read ; and 
 thereupon he delivered the book to him, and I per- 
 ceived the prisoner never looked on the book at all: 
 and yet the bishop's clerk, upon the demand of 
 'legit? or non legit?' answered 'legit.' And t,here- 
 upon I told him I doubted he was mistaken, and 
 had the question again put to him; whereupon he 
 answered again, something angrily, 'legit.' Then I 
 bid the clerk of assizes not to record it, and I told 
 the parson that he was not the judge whether the 
 culprit could read or no, but a ministerial officer to 
 make a true report to the court; and so I caused 
 the prisoner to be brought near, and delivered him 
 the book, when he confessed that he could not read. 
 Whereupon I told the parson that he had unpreach- 
 ed more that day than he could preach up again in 
 many days, and I fined him five marks." An in- 
 stance of humanity is mentioned by Donne, of a 
 culprit convicted of a non-clergyable offence prompt- 
 ing a convict for a clergyable one in reading his 
 neck-verse. In the very curious collection of pro- 
 legomena to Coryat's Crudities are commendatory 
 lines by Inigo Jones. The famous architect wrote, 
 
 "Whoever on this book with scorn would look, 
 May he at sessions crave, and want his book." 
 
 When one who could read had the privi- 
 lege, it was enough to read a line in a book, 
 and the same verse of Psalms li. 1, was said 
 to be used with each prisoner, called the 
 "neck-verse." 
 
 See 1 Soc. Engl. 297; 1 P. & M. 429; 1 
 Stephen H. C. L. 464. 
 
 The benefit of clergy seems never to have 
 been extended to breach of forest laws, tres- 
 pass or high treason, nor misdemeanors in- 
 ferior to felony. In time it became a com- 
 plicated series of rules exempting certain 
 persons from punishment for certain crimi- 
 nal offences. It has been usually acknowl- 
 edged as belonging to the common law of 
 most of the United States; 1 Bish. Cr. L. 
 938. See 1 Chit. Cr. L 667; 4 Bla. Com. ch. 
 28 ; 1 Bish. Cr. Law § 936. 
 
 By acti of congress of April 30, 1790, R. S. 
 § 5329, the benefit of clergy shall not be used 
 or allowed upon conviction of any crime for 
 which the punishment is death. Repealed 
 by act of March 4, 1909 ; apparently the doc- 
 trine thus becomes obsolete. 
 
 See Buening in the Hand. 
 
 BENEFIT OF DISCUSSION. The right 
 which a surety has to cause the property of 
 the principal debtor to be applied in satis- 
 faction of the obligation in the first instance. 
 La. Civ. Code, art. 3014. See Benefice de 
 Discussion.
 
 li;m;fit of division 
 
 339 
 
 BESOT 
 
 BENEFIT OF DIVISION. In Civil Law. 
 The right of one of several joint sureties, 
 when sued alone, to have the whole obliga- 
 tion apportioned amongst the solvent sure- 
 ties, so that he need pay but his share. La. 
 Civ. Code, arts. 3014-3020. 
 
 BENEFIT OF INVENTORY. In Civil Law. 
 The privilege which the heir obtains of be- 
 ing liable for the charges and debts of the 
 succession, only to tbe value of the effects 
 of the succession, by causing an inventory 
 of these effects within the time and manner 
 prescribed by law. La. Civ. Code, art. 1025 ; 
 Pothier, des Success, c. 3, s. 3, a. 2. See 
 Spence, Eq. Jurisd. 585. See also Paterson, 
 Comp. as to the Scotch law. 
 
 BENERETH. A service which the tenant 
 rendered to his lord with his plow and cart 
 Cowell. 
 
 BENEVOLENCE. A voluntary gratuity 
 given by the subjects to the king. Cowell. 
 
 Benevolences were first granted to Edward IV.; 
 but under subsequent monarchs they became any- 
 thing but voluntary gifts, and by the Petition of 
 Rights (3 Car. I.) no benevolence shall be extorted 
 without the consent of parliament. The illegal 
 claim and collection of these benevolences was one 
 of the prominently alleged causes of the rebellion 
 of 1640. 1 Bla. Com. 140 ; 4 id. 436. 
 
 The love of humanity; the desire to pro- 
 mote its prosperity or happiness. When 
 used in a bequest with charity, it is synony- 
 mous. Saltonstall v. Sanders, 11 Allen 
 (Mass.) 44G. See Charitable Uses. 
 
 BENEVOLENTIA REGIS HABENDA. 
 
 The form in ancient fines and submissions 
 to purchase the king's pardon and favor in 
 order to be restored to place, title or estate. 
 Paroch. Antiq. 172. 
 
 BEN HURST. In Berkshire, a remedy for 
 the inhabitants thereof to levy money recov- 
 ered against them on the statute of hue and 
 cry. 39 Eliz. c. 25. 
 
 BEQUEATH. To give personal property 
 by will to another. Lasher v. Lasher, 13 
 Barb. (N. Y.) 106. The word may be con- 
 strued devise, so as to pass real estate; Wig- 
 ram, Wills 11 ; or devise and bequeath : 
 Laing v. Barbour, 119 Mass. 525; Dow v. 
 Dow, 36 Me. 216 ; Lasher v. Lasher, 13 Barb. 
 (N. Y.) 109. See Legacy. 
 
 BEQUEST. A gift by will of personal 
 property. See Legacy. 
 
 BERTILL0N SYSTEM. See Anthropom- 
 etry. 
 
 BESAILE, BESAYLE. The great-grand- 
 father, proavus. 1 Bla. Com. 180. 
 
 BESIDES. In addition to; moreover. In 
 provisions in a will for children "besides" 
 an eldest son, no children take unless there 
 be a son ; 4 Dr. & War. 235. 
 
 BESOT. To stupefy, to make dull or 
 senseless, to make to dote; and "to dote" 
 
 is to be delirii i 
 
 Meredith, 7 Ind. -111. 
 
 BEST. Of the highest quality. Of the 
 greatest usefulness for the purpose int> 
 Where one covenants to use his best en- 
 deavors, there is no breach if he is pi- 
 ed by causes wholly beyond his control and 
 without any default on his part: 7 11. & 
 X. 92. A contract to erect a building of the 
 best lumber means tin- best lumber 
 buildings arc ordinarily Constructed a' 
 place; Mclntire v. Barnes, 4 < - <>i. 
 
 BEST EVIDENCE. The best evidence of 
 which the nature of the case admits. 1 
 
 i or strongest evidence which ti: 
 ture of the thing to be proved admits of: 
 e. g. a copy of a deed is not the best evi- 
 dence: the deed itself is better. 1 Gi 
 Ew, Lewis's ed. § 82; State v. Mel 
 65 Me. 407: Tayloe v. Biggs, 1 Pet. - 
 591, 7 L. Ed. 275; Whitehead v. School Diet, 
 145 Pa. 41S, 22 Atl. 991 : 15 Q. B. 
 
 The rule requiring the best evid ace to 
 be produced is to be understood of the best 
 legal evidence; Gray v. Pentland, 2 S. & K. 
 (Pa.) 34; 3 Bla. Com. 3GS, n. 10, by Chris- 
 tian. It is relaxed in some cases, as where 
 the words or the act of the opposite party 
 avow the fact to be proved. A tavern-keep- 
 er's sigu avows his occupation ; taking of 
 tithes avows the clerical character ; Cum- 
 mim v. Smith, 2 S. & R. (Pa.) 440 ; 1 Saund. 
 PI. 49. 
 
 Letterpress copies of letters are the besl 
 secondary evidence of their contents; Ford 
 v. Cunningham, 87 Cal. 209, 25 Pac. 40.". 
 Where a note and the deed of trust given to 
 secure it differ in describing the payee of 
 the note, the note will prevail as evidence 
 over the deed of trust ; Magee v. Burch, 10S 
 Mo. 336, IS S. W. 1078. 
 
 Prof. Thayer (Evid. 484) treats the sub- 
 ject and expresses the opinion that this 
 phraseology tends to confusion ; though ad- 
 mitting that in the earlier days it may have 
 been useful and may become «so again as the 
 discretion of the courts is enlarged. He pre- 
 fers "primary" and "secondary." Id. 505. 
 
 BESTIALITY. A sexual connection be- 
 tween a human being and a brute of the 
 opposite sex. Buggery seems to include 
 both sodomy and bestiality; Austrian v. Veal, 
 10 Ind. 356, 71 Am. Dec. 331. See Sodomy. 
 
 BETR0THMENT. BETROTHAL. A con- 
 tract between a man and a woman by which 
 they agree that at a future time they will 
 marry together. 
 
 The contract must be mutual ; the prom- 
 ise of the one must be the consideration 
 for the promise of the other. It must be 
 obligatory on both parties at the same in- 
 stant, so that each may have an action upon 
 it, or it will bind neither ; 1 Freem. 95 ; 3 
 Kebl. 14S; Co. Litt. 79 a, b.
 
 BETROTHMENT, BETROTHAL 
 
 340 
 
 BETTING 
 
 The parties must be able to contract. If 
 either be married at the time of betroth- 
 ment, the contract is void ; but the married 
 party cannot take advantage of his own 
 wrong, and set up a marriage or previous 
 engagement as an answer to the action for 
 the breach of the contract, been use this 
 disability proceeds from the defendant's own 
 act; 1 Ld. Raym. 3S7; 3 Inst. 89; 1 Sid. 
 112 ; 1 Bla. Com. 432. 
 
 The performance of this contract, or the 
 completion of the marriage, must be ac- 
 complished within a reasonable time. Ei- 
 ther party may, therefore, call upon the 
 other to fulfil the engagement, and, in case 
 of refusal or neglect to do so within a rea- 
 sonable time after request made, may treat 
 the betrothmcnt as at an end, and bring 
 action for the breach of the contract ; 2 C. 
 & P. 631. For a breach of the betrothment 
 without a just cause, an action on the case 
 may be maintained for the recovery of dam- 
 ages. It may be maintained by either party; 
 1 Salk. 24. 
 
 In Anglo-Saxon times the betrothal was 
 between the bridegroom and the woman's 
 father or other protector; 2 Poll. & Maitl. 
 H. E. L. 365. 
 
 In Germany and Holland a party could 
 be compelled to complete his contract. See 
 Promise of Marriage. As to the Roman 
 Law, see Bryce, Studies in History. 
 
 BETTER EQUITY. The right which, in a 
 court of equity, a second incumbrancer has 
 who has taken securities against subsequent 
 dealings to his prejudice, which a prior in- 
 cumbrancer neglected to take although he 
 had an opportunity. 1 Chanc. Prec. 470, n. ; 
 Oliver v. Oliver, 4 Rawle (Pa.) 144, 26 Am. 
 Dec. 123. 
 
 BETTERMENTS. Improvements made to 
 an estate. It signifies such improvements as 
 render it better than mere repairs. Mad- 
 docks v. Jellison, 11 Me. 482 ; Davis' Lessee 
 v. Powell, 13 Ohio, 30S; M'Kinly v. Holli- 
 day, 10 Yerg. (Tenn.) 477 ; Thompson v. Gil- 
 man, 17 Vt. 109. The term is also applied 
 to denote the additional value which an es- 
 tate acquires in consequence of some public 
 improvement, as laying out or widening a 
 street, etc. 
 
 The measure of the value of betterments 
 is not their actual cost, but the enhanced 
 value they impart to the land, without ref- 
 erence to the fact that they were not de- 
 sired by the true owner or could not profit- 
 ably be used by him ; Carolina Cent. R. Co. 
 v. McCaskill, 98 N. C. 526, 4 S. E. 468. 
 
 BETTING. The act of making a wager; 
 a species of gambling. 
 
 A bet or wager is ordinarily an agreement 
 between two or more that a sum of money 
 or some valuable thing, in contributing 
 which those agreeing take part, shall become 
 the property of one or some of them, on the 
 
 happening in the future of an event at the 
 present uncertain; Harris v. White, 81 N. Y. 
 5.'}9. See Gaming. 
 
 BETWEEN. In the intermediate space of, 
 without regard to distance; from one to 
 another; belonging to two as a mutual re- 
 lation. 
 
 The words "between A. & B." in a deed 
 excludes the termini mentioned therein ; Re- 
 vere v. Leonard, 1 Mass. 93, but see Morris 
 & E. R. Co. v. R. Co., 31 N. J. L. 212. Be- 
 tween two places is held to exclude both ; 8 
 C. & P. 612. 
 
 "Between" when properly predicable of 
 time is intermediate. "Between two days" 
 was held exclusive of both ; Bunce v. Reed, 
 16 Barb. (N. Y.) 352. See Robinson v. Fos- 
 ter, 12 la. 1S6. A testamentary gift to two 
 or more between or amongst them creates a 
 tenancy in common ; 2 Mer. 70. It is often 
 synonymous with among; Myres v. Myres, 
 23 How. Pr. (N. Y.) 415. When between and 
 among follow the verb divide, the general 
 signification is very similar and in popular 
 use they are synonymous; Senger v. Seng- 
 er's Ex'r, 81 Va. 698. 
 
 BEYOND SEAS. Out of the kingdom of 
 England ; out of the state ; out of the Unit- 
 ed States. "Beyond seas" means, generally, 
 without the jurisdiction of the state or gov- 
 ernment in which the question arises; 
 32 E. L. & Eq. 84; Forbes' Adm'r v. Foot's 
 Adm'r, 2 McCord (S. C.) 331, 13 Am. Dec. 
 732; Galusha v. Cobleigh, 13 N. H. 79; 
 Hatch v. Spofford, 24 Conn. 432. 
 
 It means "out of the United States;" 
 Thurston v. Fisher, 9 S. & R. (Pa.) 288; 
 Earle v. McDowell, 12 N. C. 16; Davie v. 
 Briggs, 97 U. S. 638, 24 L. Ed. 10S6; Kee- 
 ton's Heirs v. Keeton's Adm'r, 20 Mo. 530; 
 Darling v. Meachum, 2 G. Greene (la.) 602. 
 Other cases hold that it means out of the 
 state; Byrne v. Crowninshield, 1 Pick. (Mass.) 
 263 ; Pancoast's Lessee v. Addison, 1 Harr. & 
 J. (Md.) 350, 2 Am. Dec. 520 ; Forbes' Adm'r v. 
 Foote's Adm'r, 2 McCord (S. C) 331, 13 Am. 
 Dec. 732; Mansell's Adm'r v. Israel, 3 Bibb 
 (Ky.) 510; Houston v. Moore, 3 Wheat. (U. 
 S.) 433, 4 L. Ed. 428; Galusha v. Cobleigh, 
 13 N. H. 86; Stephenson v. Doe, 8 Blackf. 
 (Ind.) 515, 46 Am. Dec. 489; Richardson's 
 Adm'rs v. Richardson's Adm'rs, 6 Ohio, 126, 
 25 Am. Dec. 745; Thomason v. Odum, 23 
 Ala. 486; Wakefield v. Smart, 8 Ark. 489. 
 See also Sleght v. Kane, 1 Johns. Cas. (N. 
 Y.) 76; and to this effect is the very uni- 
 form current of authorities. 
 
 In the various statutes of limitation the 
 term "out of the state" is now generally 
 used. And the United States courts adopt 
 and follow the decisions of the respective 
 states upon the interpretation of their re- 
 spective laws; Shelby v. Guy, 11 Wheat. 
 (U. S.) 361, 6 L. Ed. 495. What consti- 
 tutes absence out of the state within the
 
 BEYOND SEAS 
 
 341 
 
 BICYCLE 
 
 meaning of the statute is wholly undetermin- 
 able by any rule to be drawn from the de- 
 cisions. It seems to be agreed that tempo- 
 rary absence is not enough; but what is a 
 temporary absence is by no means agreed; 
 An.-. I.im. § 200, n. Any place in Ireland 
 was held to be "beyond the sea," under 21 
 Jac. I. c. 16; Show. 91; but this is chang- 
 ed by stat. 3 & 4 William IV. c. 27. which 
 enacted that no part of the United Kingdom 
 of Great Britain and Ireland, nor of the 
 Channel Islands, should be deemed to be 
 beyond seas within the meaning of the acts 
 of limitation. 
 
 BIAS. A particular influential power 
 which sways the judgment; the inclination 
 or propensity of the mind towards a partic- 
 ular object; adopted in Willis v. State, 12 
 Ga. 449. 
 
 Justice requires that the judge should 
 have no bias for or against any individual, 
 and that his mind should be perfectly free 
 to act as the law requires. 
 
 There is, however, one kind of bias which 
 the courts suffer to influence them in their 
 judgments: it is a bias favorable to a class 
 of cases, or persons, as distinguished from 
 an individual case or person. A few ex- 
 amples will explain this. A bias is felt on 
 account of convenience ; 1 Ves. Sen. 13 ; 3 
 Atk. 524. It is also felt in favor of the heir 
 at law, as when there is an heir on one 
 side and a mere volunteer on the other ; 1 
 W. Bla. 256; 1 Ball & B. 309; 1 Wils. 310. 
 On the other hand, the court leans against 
 double portions for children; 13 Price 599; 
 against double provisions, and double satis- 
 factions ; 3 Atk. 421; and against forfei- 
 tures; 3 Term 172. 
 
 BIBLE. See Schools; Family Bible. 
 
 BICAMERAL SYSTEM. A term applied 
 by Jeremy Bentham to the division of a leg- 
 islative body into two chambers, as in the 
 United States government. 
 
 BICYCLE. A two-wheeled vehicle propel- 
 led by the rider. 
 
 To ride a bicycle in the ordinary manner 
 on a public highway for convenience, pleas- 
 ure, or business is lawful. A person driving 
 a horse thereon has no rights superior to a 
 person riding a bicycle ; Thompson v. Dodge, 
 58 Minn. 555, 60 N. W. 545, 2S L. R. A. 608, 
 49 Am. St. Rep. 503. 
 
 It has been held that an ordinance which 
 attempts to forbid bicyclists to use that part 
 of the street which is devoted to the use of 
 vehicles is void as against common right ; 
 Swift v. City of Topeka, 43 Kan. 671, 23 
 Pac. 1075, 8 L. R, A. 772; City of Emporia 
 v. Wagoner, 6 Kan. App. 659, 49 Pac. 701; 
 but see Twilley v. Perkins, 77 Md. 252, 20 
 Atl. 286, 19 L. R. A. 632, 39 Am. St Rep. 
 408. 
 
 Their proper place is the roadway rather 
 
 than the sidewalk; State v. Collins, 16 It. 
 I. 371, 17 Atl. 131, 3 L. It. A. 394; and stat- 
 utes and ordinances in some states declare 
 their use upon BldewalKS unlawful; I 
 v. Forrest, 170 Pa. 40. ?;i Atl. 652, 29 L. R. 
 A. 365; .Mercer v. Corbin, 117 Ind. 1* 
 N. E. 132, 3 L. R. A. 221, 10 Am. St. Rep. 76. 
 It has been held that, even In the absence of 
 an ordinance prohibiting it, one riding a bi- 
 cycle upon a sidewalk takes the risk <>f any 
 injury he may thereby cause to pedestrians; 
 Fielder v. Tipton, 1 19 Ala. 608, 42 South. 
 9S5, 8 L. R. A. (N. S.) 1268, 123 Am 
 Rep. 69, 13 Ann. Cas. 1012; and that per- 
 mission under municipal ordinance is not 
 justification for violating a statute prohibit- 
 ing riding a bicycle on a sidewalk ; Millett 
 v. City of Princeton, 167 Ind. 582, 79 N. K. 
 909, 10 L. R. A. (N. S.) 785. A municipal 
 corporation, however, is not liable for in- 
 jury to a person struck by a bicycle ridden 
 by another on a sidewalk because of failure 
 to enact or enforce an ordinance prohibiting 
 the riding of bicycles on sidewalks? Jones v. 
 City of Williamsburg. 97 Va. 722, 34 S. E. 
 883, 47 L. R. A. 294. Where a rider was in- 
 jured by a defective sidewalk, it was held 
 that the use of a bicycle thereon was not 
 unlawful and that he could recover ; Lee v. 
 City of Port Huron, 12S Mich. 533. S7 N. W. 
 637, 55 L. R. A. 308. 
 
 Bicycles may be left standing in the street 
 while the owner is calling at a residence or 
 place of business, as any other vehicle may : 
 Lacey v. Winn. 3 D. R. (Pa.) 811; Lacy v. 
 Winn, 4 id. 409. Whether a bicyclist who 
 leaves his wheel standing against the curb- 
 stone in front of a horse and wagon is neg- 
 ligent in failing to ascertain whether the 
 horse was unattended and unfastened is a 
 question of fact for the jury; Wagner v. 
 Milk Co., 21 Misc. 62, 46 N. Y. Supp. 939. 
 
 An innkeeper is liable for damages where 
 a bicycle belonging to a guest Is stolen from 
 the yard of the inn; 2S Ir. L. T. & S. J. 
 297. A municipality has power to require 
 bicyclists to carry lights when using the 
 streets after dark; City of Des Moines v. 
 Keller,. 116 la. 648, 88 N. W. 827, 57 L. R. 
 A. 243, 93 Am. St. Rep. 268. A person who 
 rides a bicycle without a light or signal of 
 warning in a public thoroughfare at a time 
 when objects can be discerned readily at a 
 distance of but a few feet is. as a matter of 
 law, guilty of negligence; Cook v. Fogarty, 
 103 la. 500, 72 N. W. 677, 39 L. K. A. 488 
 
 Where a statute declares that bicycles arc 
 entitled to the same rights and subject to 
 the same restrictions as are prescribed in 
 the case of persons using carriages, the rider 
 of a bicycle must turn out for a heavy ve- 
 hicle; Taylor v. Traction Co., 184 Pa. 465, 
 40 Atl. 159, 47 L. K. A. 289, following the 
 rule of the road established in earlier de- 
 cisions; Beach v. Parmeter, 23 Pa. 196; 
 Grier v. Sampson, 27 Pa. 1S3 ; but see contra,
 
 BICYCLE 
 
 342 
 
 BIDDER 
 
 Foote v. Produce Co., 195 Pa. 100, 45 Atl. 
 O.'J 1, 40 L. R. A. 764, 7S Am. St. Rep. S06. 
 
 A bicyclist has a right to insist that the 
 highway shall be maintained in a reasonably 
 safe condition of repair; if not so maintain- 
 ed the corporation is answerable for injury 
 to him or his vehicle ; Geiger v. Turnpike 
 Road, 167 Pa. 5S2, 31 Atl. 918, 28 L. R. A. 
 45S. Though, on an ordinary country road, 
 he is exposed to greater danger than a per- 
 son in a vehicle drawn by horses, the com- 
 missioners of highways are not bound to any 
 higher obligation to him, but ouly to main- 
 tain such road in reasonably safe condition; 
 Sutphen v. Town of North Hempstead, 80 
 Hun 400, 30 N. Y. Supp. 128; Fox v. Clarke, 
 25 R. I. 515, 57 Atl. 305, 65 L. R. A. 234, 
 1 Ann. Cas. 548. 
 
 Bicycles are carriages under the tariff 
 act ; Adams, Tariff 99 ; so for the purpose 
 of collecting tolls; Geiger v. Turnpike Road, 
 167 Pa. 5S2, 31 Atl. 918, 28 L. R. A. 458 ; and 
 under an act forbidding furiously driving a 
 carriage ; L. R. 4 Q. B. Div. 228 ; and an act 
 requiring carriages to turn to the right; 
 State v. Collins, 16 R. I. 371, 17 Atl. 131, 3 
 L. R. A. 394. But in Glouchester & Salem 
 Turnpike Co. v. Leppe, 62 N. J. L. 92, 40 
 Atl. 6S1, 41 L. R. A. 457, they were held 
 not liable to tolls as "carriages of burthen 
 or pleasure." They were held not to be 
 within an act of 1786, requiring highways to 
 be kept reasonably safe for carriages ; Rich- 
 ardson v. Danvers, 176 Mass. 413, 57 IS. E. 
 6S8, 50 L. R. A. 127, 79 Am. St. Rep. 320; 
 to the same effect under an early act in 
 Fox v. Clarke, 25 R. I. 515, 57 Atl. 305, 65 
 L. R. A. 234, 1 Ann. Cas. 548. 
 
 As to bicycles as baggage, see Baggage. 
 
 BID. An offer to pay a specified price for 
 an article about to be sold at auction. 
 
 An offer to perform a contract for work 
 and labor or supplying materials at a speci- 
 fied price. 
 
 BIDDER. One who offers to pay a speci- 
 fied price for an article offered for sale at 
 a public auction. Webster v. French, 11 111. 
 254 ; . one who offers to enter into a con- 
 tract for work and labor, or supplying ma- 
 terials at a specified price. 
 
 The bidder at an auction has a right to 
 withdraw his bid expressly at any time be- 
 fore it is accepted, which acceptance is gen- 
 erally manifested by the fall of the hammer ; 
 Benj. Sales 50, 73; 3 Term 148; Doolin v. 
 Ward, 6 Johns. (N. f.) 194; Bab. Auct. 30, 
 42; Blossom v. R. Co., 3 Wall. (U. S.) 196, 
 18 L. Ed. 43 ; Coker v. Dawkins, 20 Fla. 153 ; 
 Nebraska Loan & Trust Co. v. Hamer, 40 
 Neb. 293, 5S N. W. 695; or the bid may be 
 withdrawn by implication, as by an adjourn- 
 ment of the sale before the article under 
 the hammer is knocked down ; Faunce v. 
 Sedgwick, 8 Pa. 40S. 
 
 The bidder is required to act in good faith, 
 and any combination between him and oth- 
 
 ers, to prevent a fair competition, would 
 avoid the sale made to himself; 3 B. & B. 
 116; Martin v. Ranlett, 5 Rich. (S. C.) 541, 
 57 Am. Dec. 770; Barnes v. Mays, 88 Ga. 
 006, 16 S. E. 67; Towle v. Leavitt, 23 N. II. 
 360, 55 Am. Dec. 105; Veazie v. Williams, 8 
 How. (U. S.) 134, 12 L. Ed. 1018. But there 
 is nothing illegal in two or more persons 
 agreeing together to purchase a property at 
 sheriff's sale, fixing a certain price which 
 they are willing to give, and appointing one 
 of their number to be the bidder ; Smull v. 
 Jones, 6 W. & S. (Pa.) 122; National Fire 
 Ins. Co. v. Loomis, 11 Paige Ch. (N. Y.) 431; 
 Kearney v. Taylor, 15 How. (U. S.) 494, 14 
 L. Ed. 787; Veazie v. Williams, 3 Sto. 623, 
 Fed. Cas. No. 16,907. See Auction ; Auc- 
 tioneer. 
 
 The writ of mandamus will not lie to com- 
 pel city authorities to award a contract to 
 the lowest bidder, where, in the exercise of 
 their discretion, they have decided that the 
 faithful performance of the contract requires 
 judgment and sldll which he does not pos- 
 sess, notwithstanding his ability to furnish 
 good security; Com. v. Mitchell, 82 Pa. 343. 
 
 BIENNIALLY. In a statute this term sig- 
 nifies not duration of time, but a period for 
 the happening of an event; People v. Tre- 
 main, 9 Hun (N. Y.) 573. In most of the 
 states legislative sessions occur biennially ; 
 that is, once in two years. 
 
 BIENS (Fr. goods). Property of every 
 description, except estates of freehold and 
 inheritance. Sugd. Vend. 495; Co. Litt. 119 
 b; Dane, Abr. 
 
 In the French law, this term includes all kinds of 
 property, real and personal. Biens are divided into 
 biens meubles, movable property; and biens immeu- 
 bles, immovable property. The distinction between 
 movable and immovable property is recognized by 
 them, and gives rise, in the civil as well as in the 
 common law, to many important distinctions as to 
 rights and remedies. Story, Confl. Laws, § 13, 
 note 1. 
 
 Tous les biens means in French law "all 
 the property, and must therefore be accepted 
 as including both real and personal estate" ; 
 Lindsay v. Wilson, 103 Md. 252, 63 Atl. 566, 
 2 L. R. A. (N. S.) 408. 
 
 In Eddy v. Davis, 35 Vt. 247, it was held 
 that Mens, goods," includes both animate and 
 inanimate movable property, citing Co. Litt. 
 118 &, to the effect that "Mens, bona" are 
 words which include all chattels, as well 
 real as personal, and adding: "In this sense 
 the word goods is used in the ancient and 
 well known form of the solemnization of 
 matrimony contained in the Book of Com- 
 mon Prayer: * * * 'With all my worldly 
 goods I thee endow.' " 
 
 In biens, real estate is included "in the 
 sense of the civilians and continental ju- 
 rists"; Adams v. Akerlund, 168 111. 632, 48 
 N. E. 454; Sto. Confl. L. §§ 13, 146. 
 
 BIGAMUS. In Civil Law. One who had 
 
 been twice married, whether both wives were
 
 BIGAMUS 
 
 343 
 
 BIGAMY 
 
 alive at the same time or not. One who had 
 married a widow. 
 
 Used in ecclesiastical matters as a reason for de- 
 nying benefit of the clergy. Termes de la Ley. 
 
 BIGAMY. The state of a man who has 
 two wives, or of a woman who has two hus- 
 bands, living at the same time. 
 
 When the man has more than two wives, or the 
 woman more than two husbands, living at the same 
 time, then the party is said to have committed 
 polygamy; but the name of bigamy is more fre- 
 quently given to this offence in legal proceedings. 
 1 Russell, Cr. 187. 
 
 According to the canonists, bigamy Is threefold, 
 viz.: (vera, interpretativa et similitudinaria) real, 
 interpretative, and similitudinary. The first con- 
 sisted in marrying two wives successively (virgins 
 they may be), or in once marrying a widow ; the 
 second consisted, not in a repeated marriage, but in 
 marrying e. g. merctricem vel ab alio corruptam, a 
 harlot; the third arose from two marriages, indeed, 
 but the one metaphorical or spiritual, the other car- 
 nal. This last was confined to persons initiated in 
 sacred orders, or under the vow of continence. De- 
 ferriere's Tract. Juris Canon, tit xxi. See also 
 Bacon, Abr. Marriage. 
 
 In England this crime was punishable by 
 tbe stat. 24 & 25 Vict. c. 100, § 57, which 
 made the offence felony; but it exempted 
 from punishment the party whose husband 
 or wife should continue to remain absent for 
 seven years before the second marriage with- 
 out being heard from, and persons who had 
 been legally divorced. The statutory provi- 
 sions in the United States against bigamy 
 or polygamy are in general similar to, and 
 copied from, the statute of 1 Jac. I. c. 11, 
 which was supplied by the act of 24 & 25 
 Vict, c. 100, excepting as to the punishment. 
 The several exceptions to this statute are 
 also nearly the same in the American stat- 
 utes; but the punishment of the offence is 
 different in many of the states; 2 Kent 69. 
 Bigamy and polygamy are crimes by the 
 laws of all civilized and Christian countries, 
 and the First Amendment to the constitution 
 declaring that congress shall make no law 
 respecting the establishment of religion or 
 forbidding the free exercise thereof, was 
 never intended to be a protection against 
 legislation for the punishment of such 
 crimes; Davis v. Beason, 133 U. S. 333, 10 
 Sup. Ct. 299, 33 L. Ed. 637. It is no defence 
 • that polygamy is a religious belief ; U. S. 
 v. Reynolds. 1 Utah 226; Reynolds v. U. S., 
 98 U. S. 145, 25 L. Ed. 244. 
 
 The act of March 22, 1SS2, creates a new 
 and distinct offence from bigamy or polyga- 
 my, one which is declared to be a misde- 
 meanor (there having been and being no such 
 declaration as to bigamy and polygamy), and 
 the punishment is much less than for bigamy 
 and polygamy. It is the offence of cohabit- 
 ing with more than one woman; Snow v. D. 
 S., 118 U. S. 346, 6 Sup. Gt. 1059, 30 L. Ed. 
 207. 
 
 It is no defence that the accused believed 
 his former marriage was annulled, when the 
 statute merely defines the offence as marry- 
 ing again where a former spouse is living ; 
 
 State v. Zichfeld, 23 Xev. 304, 46 Pac. 802, 
 34 L. R. A. 7S4, G2 Am. St Rep. 800. 
 
 If a woman, who has a husband 1. 
 marries another person, she is punishable, 
 though her husband has voluntarily with- 
 drawn from her and remained absent and 
 unheard of for any term of time less than 
 seven years, and though she honestly be- 
 lieves, at the time of her second marriage, 
 that he is dead; Com. v. Mash, 7 .Met'-. 
 (.Mass.) 472. See a dlSCUSSion Of this 
 by Mr. Bishop, in which he dissents from 
 its ruling, in 4 So. L. J. (N. S.i 153; Clark, 
 Cr. L. ;jll. Also, 12 Am. L. Rev. -171. The 
 same rule applies also to the marriage of 
 the husband, where he believes the wile to 
 be dead; Dotsou v. State, 02 Ala. 141, 34 
 Am. Rep. 2; Davis v. Com., 13 Bush iKy.i 
 318. The same rule now obtains in England, 
 after some conflict of opinion; 14 Cox C. C. 
 45; but quwre, if her belief were founded 
 on positive evidence; Steph. Dig. Cr. Law. 
 art. 34, n. 9. On the trial of a woman for 
 bigamy whose first husband bad been ab- 
 sent from her for more than seven years, the 
 jury found that they had no evidence that 
 at the time of her second marriage she knew 
 that he was alive, but that she had the 
 means of acquiring knowledge of that fact 
 had she chosen to make use of them. It was 
 held that upon this finding the conviction 
 could not be supported; l Dearsl. & B. Cr. 
 Cas. 98. If a man is prosecuted for bigamy, 
 his first wife cannot be called to prove her 
 marriage with the defendant; T. Raym. 1; 
 Williams v. State, 44 Ala. 24; 15 Low. Can. 
 J. 21; nor it seems even to prove that the 
 first marriage was invalid; 4 Up. Can. Q. 
 B. 5S8; but see as to this last point, 2 
 Whart Cr. L. § 1709. 
 
 In a prosecution for bigamy it devolves 
 on the state to prove a valid first marriage 
 and that the lawful spouse of the defendant 
 was living at the time of the second mar- 
 riage; Sokel v. People, 212 111. 23S, 72 N. E. 
 382; State v. Kniffen, 44 Wash. 4S5, S7 I'ac. 
 837, 120 Am. St. Rep. 1009, 12 Ann. Cas. 
 113; McCombs v. State, 50 Tex. Cr. R. 490. 
 99 S. W. 1017. 9 L. R. A. (N. S.) 1030. 123 
 Am. St. Rep. 855. 14 Ann. Cas. 72. Belief 
 of the death of the former wife is no defence 
 to a prosecution for bigamy; Cornetf v. Com.. 
 i:it Ky. 613, 121 S. \V. 424, 21 Ann. ('as. 
 399. The first marriage may be proved by 
 the admissions of tbe prisoner; Miles v. U. 
 S., 103 U. S. 304, 20 L. Ed. 481. When the 
 first marriage is proved to the satisfaction 
 of the court, the second husband is ad 
 ble as a witness for or against the defend- 
 ant; Whart. Cr. Ev. § 397; State v. Johnson. 
 12 Minn. 47<i (Gil. 37S), 93 Am. Dec. 211; 
 4 Dp. Can. (Q. B.) 588; Miles v. V. S., 103 U. 
 S. 304. 26 L. Ed. 4S1. 
 
 A conviction for bigamy has been support- 
 ed although the person who solemnized the 
 marriage had not the required authority:
 
 BIGAMY 
 
 344 
 
 BILL 
 
 Carniichael v. State, 12 Ohio St. 553, but 
 see Bates v. State, 29 Ohio Cir. Ct. Rep. 
 189; 20 Harv. L. Rev. 576. Admissions of 
 a prior marriage in a foreign country are 
 sufficient without proof of cohabitation or 
 other corroborating circumstances to estab- 
 lish the marriage; state v. Wylde, 110 N. C. 
 500, 15 S. E. 5. 
 
 Where the first marriage was made abroad, 
 it must be shown to have been valid where 
 made; People v. Lambert, 5 Mich. 349, 72 
 Am. Dec. 49. When the celebration of the 
 marriage is once shown, every fact neces- 
 sary to its validity will be presumed until 
 the contrary is shown; People v. Calder, 30 
 Mich. 85, Fleming v. People, 27 N. Y. 329; 
 Com. v. Kenney, 120 Mass. 387, where the 
 marriage was performed in a foreign coun- 
 try ; but see Weinberg v. State, 25 Wis. 370. 
 Reputation and cohabitation are not suffi- 
 cient to establish the fact of the first mar- 
 riage; Gahagan v. People, 1 Park Cr. Cas. 
 (N. Y.) 378. If the second marriage be in a 
 foreign state, it is not bigamy; People v. 
 Mosher, 2 Park. Cr. Cas. (N. Y.) 195; except 
 by statute; 3G E. L. & Eo.. 614. Where the 
 first marriage was not performed according 
 to the statute and there is no evidence of 
 subsequent cohabitation of the parties the 
 second marriage is not bigamy; People v. 
 McQuaid, 85 Mich. 123, 48 N. W. 161. 
 See Marriage. 
 
 BILAN. A book in which bankers, mer- 
 chants, and traders write a statement of all 
 they owe and all that is due to them. A bal- 
 ance sheet. The term is used in Louisiana, 
 and is derived from the French. 
 
 BILATERAL CONTRACT. A contract in 
 which both the contracting parties are bound 
 to fulfill obligations reciprocally towards 
 each other. Lee. EUm. § 781. See Con- 
 tract; Unilateral Contract; Acceptance. 
 
 BILGED. The state of a ship in which 
 water is freely admitted through holes and 
 breaches made in the planks of the bottom, 
 occasioned by injuries, whether the ship's 
 timbers are broken or not. Peele v. Ins. Co., 
 3 Mas. 39, Fed. Cas. No. 10,905. 
 
 BILINE. Collateral. 
 
 Bl UNGUIS. Using two languages. 
 A term formerly applied to juries half of 
 one nation and half of another. Plowd. 2. 
 
 BILL (Lat billa). A complaint in writing 
 addressed to the chancellor, or judges of a 
 court exercising chancery jurisdiction. 
 
 Its office in a chancery suit is the same as 
 a declaration in an action at law, a libel 
 in a court of admiralty, or an allegation in 
 the spiritual courts. 
 
 A bill formerly consisted of nine parts, 
 which contained the address, to the chancel- 
 lor, court, or judge acting as such ; the 
 names of the plaintiffs and their descrip- 
 tions, but the statement of the parties in 
 
 this part of the bill merely is not sufficient ; 
 2 Ves. & B. 327; the statement of the plain- 
 tiff's case, called the stating part, which 
 should contain a distinct though general 
 statement of every material fact to which 
 the plaintiff means to offer evidence; 1 
 Brown, Ch. 94; 3 P. Wms. 276; 2 Atk. 96; 
 1 Vern. 483; 11 Ves. Ch. 240; 2 Hare 264; 
 James v. McKernon, 6 Johns. (N. Y.) 565; 
 Nesmith v. Calvert, 1 Woodb. & M. 34, Fed. 
 Cas. No. 10,123; Story, Eq. PI. § 265 a; a 
 general charge of confederacy ; the allega- 
 tions of the defendant's pretences, and charg- 
 es in evidence of them; the clause of juris- 
 diction and an averment that the acts com- 
 plained of are contrary to equity; a prayer 
 that the defendant may answer the inter- 
 rogatories, usually called the interrogating 
 part; the prayer for relief; the prayer for 
 process; 2 Madd. 166; Wright v. Wright, 8 
 N. J. Eq. 143; 1 Mitf. Eq. PI. 41. 
 
 In England and in most, if not all, of the 
 states, including those having a separate 
 court of chancery, the formal style of the 
 old English bill has fallen entirely into dis- 
 use. The form used and generally provided 
 for by rule of court, is a concise and con- 
 secutive statement of the plaintiff's case in 
 numbered paragraphs, stripped of technical 
 phrases and verbiage, concluding with pray- 
 ers, consecutively numbered, for answer, for 
 account, if incidental or appropriate to the 
 relief sought, for the special relief sought, 
 as payment of sums found due, specific per- 
 formance, etc., for injunction, if required, 
 for other relief, and for process. 
 
 By Equity Rule 25 of the United States 
 Supreme Court, in effect February 1, 1913 
 (33 Sup. Ct. xxv), a bill must contain the 
 names, citizenship and residence of the par- 
 ties (with their disabilities, if any) ; a short 
 and plain statement of the grounds of ju- 
 risdiction; a short and simple statement of 
 the ultimate facts upon which the plaintiff 
 asks relief, omitting any mere statement 
 of evidence; reasons for the omission of any 
 proper parties, if any be omitted; and a 
 prayer for any special relief pending the 
 suit or on final hearing, which may be stated 
 in alternative forms. 
 
 The bill must be signed by counsel; Davis 
 v. Davis, 19 N. J. Eq. 180; 1 Dan. Ch. Pr. 
 *312. It need not ordinarily be sworn to; 
 but if special relief pending suit be asked, 
 it must be verified by plaintiff, or some one 
 having knowledge of the facts. Equity Rule 
 25 of S. C. of U. S. So, it is said, where 
 some preliminary relief is required or in bills 
 praying for the production of documents, in- 
 cident to relief at law, or for relief in eq- 
 uity on a lost instrument; 1 Dan. Ch. Pr. 
 *393, and cases cited in notes; so, bills to 
 perpetuate testimony must have an affidavit 
 of the circumstances under which the testi- 
 mony is likely to be lost ; id. *394, n. 3 ; and 
 bills of interpleader must have an affidavit
 
 BILL 
 
 345 
 
 BILL 
 
 of no collusion; id. *394, n. 4. A bill filed 
 by a corporation need not be under seal ; 
 Georges Creek Coal & Iron Co. v. Detmold, 
 1 Md. Ch. Dec. 371; City of Moundsville v. 
 R. Co., 37 W. Va. 92, 16 S. E. 514, 20 L. li. 
 A. 161; so also of a bill brought by a mu- 
 nicipal corporation; City of Moundsville v. 
 R. Co., 37 W. Va. 92, 16 S. E. 514, 20 L. 
 R. A. 161. 
 
 A bill filed by a woman need not show 
 whether she is married or single; Paige v. 
 Broadfoot, 100 Ala. 610, 13 South. 426. 
 
 A bill in the United States district court 
 must, in the prayer for a subpoena, contain 
 the names of the defendants ; otherwise it 
 may be dismissed by the court of its own 
 motion ; City of Carlsbad v. Tibbetts, 51 Fed. 
 S52. It is a fatal defect; Goebel v. Supply 
 Co., 55 Fed. 825. But the new equity rules 
 omit that provision. 
 
 "A bill is not to be construed strictly as 
 an indictment would have been 100 years 
 ago, but is to be taken to mean what it fair- 
 ly conveys to a dispassionate reader by a 
 fairly exact use of English speech. The de- 
 murrer is to be read with the same liberal- 
 ity." Swift & Co. v. U. S., 196 U. S. 395, 
 25 Sup. Ct. 279, 49 L. Ed. 518, per Holmes, J. 
 Bills are said to be original, not original, 
 or In the nature of original bills. 
 
 Original bills are those which do, and 
 which do not, pray for relief. Story, Eq. 
 PI. § 17. 
 
 Those which pray for relief are either bills 
 praying the decree or order touching some 
 right claimed by the party exhibiting the 
 bill, in opposition to some right, real or sup- 
 posed, claimed by the party against whom 
 the bill is exhibited, or touching some wrong 
 done in violation of the plaintiffs right, 
 which is the most common kind of bill ; Mitf. 
 Eq. PI. 34 ; 1 Dan. Ch. Pr. 305. 
 
 Those wbich do not pray for relief are 
 either to perpetuate testimony; to examine 
 witnesses de bene esse; or for discovery. 
 
 Bills not original are either supplemental ; 
 of revivor; or of revivor and supplement. 
 
 Also a cross bill; a bill of review; a bill to 
 impeach a decree ; to suspend the operation, 
 or -avoid the decree for subsequent matter ; 
 to can-y a decree into effect ; or partaking of 
 the qualities of some one or all of them. 
 See Mitf. Eq. PI. 35 ; Story, Eq. PI. § 18. Van 
 Heythuysen (Equity Draftsman 444) desig- 
 nates these as bills in the nature of original 
 bills, and adds to them : A bill in the na- 
 ture of a bill of revivor, to obtain the benefit 
 of a suit after abatement in certain cases 
 which do not admit of a continuance of the 
 original bill : and a bill in the nature of a 
 suin>lcment bill to obtain the benefit of a suit 
 either after abatement in other cases which 
 do not admit of a continuance of the original 
 bill, or after the suit is become defective, 
 without abatement in cases which do not ad- 
 mit of a supplemental bill to supply that de- 
 fect. 
 
 For an account of these bills, consult the 
 various titles. 
 
 As a Contract. An obligation; a deed, 
 whereby the obligor acknowledges himself 
 to owe the obligee a certain sum of money 
 or some other thing, in which, besides the 
 names of the parties, are to be considered 
 the sum or thing due, the time, place, and 
 manner of payment or delivery thereof. It 
 may be indented or poll, and with or with- 
 out a penalty. West, Symb. § 100. 
 
 This signification came to include all con- 
 tracts evidenced by writing, whether spe- 
 cialties or parol, but is no longer in use ex- 
 cept in phrases, such as bill payable, bill of 
 lading. 
 
 In Legislation. A special act passed by a 
 legislature in the exercise of a quasi judicial 
 power. Thus, bills of attainder, bills of pains 
 and penalties, are spoken of. See Act; 
 Bill of Attainder ; Bill of Pains and Pen- 
 alties. 
 
 The draft of a law submitted to the con- 
 sideration of a legislative body for its 
 tion. Southwark Bank v. Com., 20 Pa. 450. 
 By the constitution of the United States, all 
 bills for raising revenue must originate in 
 the house of representatives ; but the senate 
 may propose or concur with amendments as 
 on other bills. See Money Bills. 
 
 As to money bills in Parliament, see Par- 
 liament aky Act. 
 
 Every bill, before it becomes a law, must 
 be approved by the president of the United 
 States, or within ten days returned, with 
 his objections, to the house in which it 
 originated. Two-thirds of each house may 
 then enact it into a law. Similar provisions 
 are copied in the constitutions of most of 
 the states; U. S. Const, art. 1, § 7. 
 
 In Mercantile Law. The creditor's written 
 statement of his claim, specifying the items. 
 
 It differs from an account stated in this, that a 
 bill is the creditor's statement ; an account stated 
 is a statement which has been assented to by both 
 parties. See Account Stated. 
 
 In England it has been held that a bill 
 thus rendered is conclusive against the par- 
 ty making it out against an increase of 
 charge on any of the items contained in it; 
 and strong evidence as to items ; 1 B. & 1'. 
 49. But in New York it has been held that 
 merely presenting a bill, no payment or 
 agreement as to the amount being shown, 
 does not conclude the party from suing for 
 a larger sum; Williams v. Glenny, 16 N. Y. 
 3S9. 
 
 BILL FOR A NEW TRIAL. One filed in a 
 court of • equity praying for an injunction 
 after a judgment at law when there is any 
 fact which renders it against conscience to 
 execute such judgment, and of which the in- 
 jured party could not avail himself in a 
 court of law, or. if he could, was prevented 
 by fraud or accident, unmixed with any fault 
 or negligence of himself or his agents. Mit- 
 ford, Eq. PL 131; 2 Story Eq. PL § 8S7.
 
 BILL FOR A NEW TRIAL 
 
 340 
 
 BILL— SUPPLEMENTAL BILL 
 
 Bills of this description are not now gener- 
 ally countenanced : Woodwortli v. Van Bus- 
 kerk, 1 Johns. Ch. (N. Y.) 432; Floyd v. 
 Jayne, G Johns. Ch. (N. IT) 479. 
 
 BILL FOR FORECLOSURE. One which 
 is filed by a mortgagee against the morc- 
 gagor, for the purpose of having the prop- 
 erty sold, thereby to obtain the sum secured 
 on the premises, with interest aud costs. 1 
 Madd. Ch. Pr. 528. See Foreclosure. 
 
 BILL IMPEACHING A DECREE FOR 
 FRAUD. This must be an original bill, 
 which may be filed without leave of court; 
 1 Sch. & L. 355 ; 1 Yes. Ch. 120 ; 3 Bro. C. C 
 74. It must state the decree, the proceedings 
 which led to it, and the ground on which 
 it is impeached; Story, Eq. PL § 428. 
 
 The effect of the bill, if the prayer be 
 granted, is to restore the parties to their 
 former situation, whatever their rights. See 
 Story, Eq. PL § 42G ; Mitf! Eq. PL 84. 
 
 BILL IN AID OF EXECUTION. A bill 
 which assumes as its basis the principle of 
 a decree and seeks merely to carry it into 
 effect. Story, Eq. PL § 249. For instance, 
 where all the facts do not distinctly appear 
 on the record; 1 Ph. 181; or where, since 
 the decree, the rights of the parties have be : 
 come embarrassed by subsequent events, and 
 a new decree is necessary; Adams, Eq. 415. 
 
 BILL IN NATURE OF A BILL OF RE- 
 VIEW. One which is brought by a person 
 not bound by a decree, praying that the same 
 may be examined and reversed ; as where a 
 decree is made against a person who has no 
 interest at all in the matter in dispute, or 
 had not an interest sufficient to render the 
 decree against him binding upon some person 
 claiming after him. 
 
 Relief may be obtained against error in the decree 
 by a bill in the nature of a bill of review. This bill 
 in its frame resembles a bill of review except that, 
 instead of praying that the former decree may be 
 reviewed and reversed, it prays that the cause may 
 be heard with respect to the new matter made the 
 subject of the supplemental bill, at the same time 
 that it is reheard upon the original bill, and that 
 the plaintiff may have such relief as the nature of 
 the case made by the supplemental bill may re- 
 quire; 1 Harrison, Ch. Pr. 145. 
 
 BILL IN NATURE OF A BILL OF RE- 
 VIVOR. One which is filed when the death 
 of a party, whose interest is not determined 
 by his death, is attended with such a trans- 
 mission of his interest that the title to it, as 
 well as the person entitled, may be litigated 
 in the court of chancery. In the case of a 
 devise of real estate, the suit is not permit- 
 ted to be continued by bill of revivor ; 1 
 Chanc. Cas. 123, 174; 3 Chanc. Rep. 39; 
 Mosel. 44. 
 
 In such cases, an original bill, upon which the 
 title may be litigated, must be filed, and this bill 
 will have so far the effect of a bill of revivor that 
 if the title of the representative by the act of the 
 deceased party is established, the same benefit may 
 be had of the proceedings upon the former bill as if 
 the suit had been continued by bill of revivor ; 1 
 Vern. 427; 2 id. 548, 672; 2 Brown, P. C. 529; 1 Eq. 
 Cas. Abr. 83; Mitf. Eq. PL 7L 
 
 BILL IN NATURE OF A SUPPLEMEN- 
 TAL BILL. One which is filed when the in- 
 terest of the plaintiff or defendant, suing or 
 defending, wholly determines, and the same 
 property becomes vested in another person 
 not claiming under him. Hinde, Ch. Pr. 71. 
 The principal difference between this and a sup- 
 plemental bill seems to be that a supplemental bill 
 is applicable to such cases only where the same 
 parties or the same interests remain before the 
 court ; whereas an original bill in the nature of a 
 supplemental bill is properly applicable where new 
 parties, with new interests arising from events oc- 
 curring since the institution of the suit, are brought 
 before the court; Cooper, Eq. PI. 75 ; Story, Eq. 
 PI. § 345. For the exact distinction between a bill 
 of review and a supplemental bill in the nature of a 
 bill of review, see 2 Phill. Ch. 705; 1 Macn. & G. 
 397. 
 
 BILL OBLIGATORY. A bond absolute for 
 the payment of money. It is called also a 
 single bill, and differs from a promissory 
 note only in having a seal ; Farmers' & Me- 
 chanics' Bank v. Greiner, 2 S. & R. (Pa.) 
 115. See Read, PL 236; West, Symb. 
 
 BILL OF ADVENTURE. A writing signed 
 by a merchant, ship-owner, or master to tes- 
 tify that goods shipped on board a certain 
 vessel are at the venture of another person, 
 he himself being answerable only for the 
 produce. 
 
 BILL OF CERTIORARI. In Equity Prac- 
 tice. One praying for a writ of certiorari 
 to remove a cause from an inferior court 
 of equity. Cooper, Eq. 44. Such a bill must 
 state the proceedings in the inferior court, 
 and the incompetency of such court by sug- 
 gestion of the reason why justice is not likely 
 to be done — as distances of witnesses, lack 
 of jurisdiction etc., — and must pray a writ 
 of certiorari to remove the record to the 
 superior court. Harrison, Ch. Pr. 49 ; Story, 
 Eq. PL § 298. 
 
 Where an equitable right is sued for in an 
 inferior court of equity, and by means of its 
 limited jurisdiction the defendant cannot 
 have complete justice, the defendant may file 
 a bill in chancery, praying a special writ, 
 called a bill of certiorari, to remove the 
 cause into the Court of Chancery; Mitf. & 
 Tyler, Eq. PL 148. 
 
 BILL OF CONFORMITY. In Equity Prac- 
 tice. One filed by an executor or adminis- 
 trator, who finds the affairs of the deceased 
 so much involved that he cannot safely ad- 
 minister the estate except under the direc- 
 tion of a court of chancery. This bill is 
 filed against the creditors, generally, for the 
 purpose of having all their claims adjusted, 
 and procuring a final decree settling the or- 
 der of payment of the assets. 1 Story, Eq. 
 Jur. 440. 
 
 BILL OF COSTS. A statement of the 
 items which form the total amount of the 
 costs of a suit or action. It must be taxed 
 by the proper officer of the court, and is de- 
 mandable as a matter of right before the
 
 BILL OF COSTS 
 
 347 
 
 BILL OF DISCOVERY 
 
 payment of the costs. See Costs; Taxing 
 Costs. 
 
 BILL OF CREDIT. Paper issued by the 
 authority of a state ou the faith of the state, 
 and designed to circulate as money. Briscoe 
 v. Bank, 11 Pet (U. S.) 257, 9 L. Ed. 709. 
 
 Promissory notes or bills issued by a state 
 government, exclusively, on the credit of the 
 state, and intended to circulate through the 
 community for its ordinary purposes as mon- 
 ey, redeemable at a future day, and for the 
 payment of which the faith of the state is 
 pledged. 4 Kent 408. 
 
 The constitution of the United States pro- 
 vides that no state shall emit bills of credit, 
 or make anything but gold and silver coin a 
 legal tender in payment of debts. U. S. 
 Const art. 1, § 10. This prohibition, it seems, 
 does not apply to bills issued by a bank 
 owned by the state but having a specific cap- 
 ital set apart; Cooley, Const Lim. 84; State 
 v. Billis. 2 McCord (S. C.) 12; McFarland 
 v. Bank, 4 Ark. 44, 37 Am. Dec. 701 ; Bris- 
 coe v. Bank, 11 Pet. (U. S.) 257, 7 L. Ed. 
 709; Darrington v. Bank, 13 How. (U. S.) 
 12, 14 L. Ed. 30; but see Craig v. Missouri, 
 4 Tet (U. S.) 410, 7 L. Ed. 903; Linn v. 
 Bank, 1 Scam. (111.) 87, 25 Am. Dec. 71; nor 
 does it apply to notes issued by corporations 
 or individuals which are not made legal ten- 
 der; 4 Kent 408; nor to coupons on state 
 bonds, receivable for taxes and negotiable, 
 but not intended to circulate as money; 
 Poindexter v. Greenhow, 114 U. S. 270, 5 
 Sup. Ct 903, 962, 29 L. Ed. 185. But it does 
 apply to a state warrant containing a direct 
 promise to pay the bearer the amount stated 
 on its face, and which is intended to circu- 
 late as money ; Bragg v. Tuffts, 49 Ark. 554, 
 G S. W. 158. 
 
 In Mercantile Law. A letter sent by an 
 agent or other person to a merchant, desir- 
 ing him to give credit to the bearer for goods 
 or money. Comyns, Dig. Merchant, F, 3; 3 
 Burr. 1607; ragaud v. State, 5 Smedes & 
 M. (Miss.) 4!)1 ; McFarland v. Bank, 4 Ark. 
 44; State v. Calvin, R. M. Charlt. (Ga.) 151. 
 
 BILL OF DEBT. An ancient term includ- 
 ing promissory notes and bonds for the pay- 
 ment of money. Comyns, Dig. Merchant, 
 F, 2. 
 
 BILL OF DISCOVERY. In Equity Prac- 
 tice. One which prays for the discovery of 
 facts resting within the knowledge of the 
 person against whom the bill is exhibited, or 
 of deeds, writings, or other things in his cus- 
 tody or power. Hinde, Ch. Pr. 20; Blake, 
 Chanc. Pract 37. 
 
 It does not seek relief In consequence of the dis- 
 covery (and this constitutes Its characteristic fea- 
 ture), though it may ask for a stay of proceedings 
 till discovery is made ; 2 Story, Eq. Jur. S HS3 ; 
 Bisph. Eq. § 557; and such relief as does not require 
 a hearing before the court may be part, it is said, 
 of the prayer ; Eden, Inj. 78 ; 19 Ves. Ch. 376 ; 4 
 Madd. 247; 5 id. 218; 1 Sch. & L. 316; 1 Sim. & S. 83. 
 
 It is commonly used in aid of the juris- 
 
 diction of a court of law, to enable the par- 
 ty who prosecutes or d suit at law to 
 obtain a discovery of the facts which are 
 material to such prosecution or defence; 
 Hare, Diseov. 11!); Marsh v. Davison, 9 Paige, 
 Ch. (X. I.) 580; Lane v. Stebbius, 9 Paige, 
 Ch. (N. Y.) 022; 2 Dan. Ch. Pr. 1556; Langd. 
 Eq. PI. § 167. A defendant in equity may 
 obtain the same relief by a cross bill; Langd. 
 Eq. PI. § 128. 
 
 The plaintiff must be entitled to the dis- 
 covery he seeks, and can only have a dis- 
 covery of what is necessary for his own title, 
 as of deeds he claims under, and not to pry 
 Into thai of the defendant; 2 Ves. Oh. 
 See Mitf. Eq. PI. 52; 1 Madd. Ch. Pr. 190; 
 Hare; Wigram, Disc. It will not lie to com- 
 pel a judgment debtor to disclose assets on 
 which execution may be levied; Carglll v. 
 Kountze, 86 Tex. 3Sf>, 22 S. W. l<>ir,, 25 8. 
 W. 13, 24 L. R. A. 183, 40 Am. St. Rep. S53. 
 
 There has been much controversy as to 
 whether the defendant Is entitled to discov- 
 ery to aid him in preparing his answer; 
 Lamrd. Eq. PI. § 129. 
 
 The bill must show a present and vested 
 title and interest in the plaintifT, and what 
 that title and interest are; Pease v. Pease, 
 S Merc. (Mass.) 395; 1 Vera. 103; Story, 
 Eq. Jur. § 1490 ; Baxter v. Farmer, 42 X. C. 
 239; with reasonable certainty; 3 Ves. 343; 
 must state a case which will constitute a 
 just ground for a suit or a defence at law; 
 Mclntyre v. Mancius, 3 Johns. Ch. (X. Y.) 
 47 ; 1 Bro. C. C. 96 ; must describe the deeds 
 and acts with reasonable certainty ; 3 Ves. 
 Ch. 343; Horton v. Moseley, 17 Ala. 7'."4; 
 must state that a suit is brought, or about 
 to be, and the nature thereof must be given 
 with reasonable certainty; 5 Madd. IS; must 
 show that the defendant has some interest; 
 1 Ves. & B. 550 ; Wakeman v. Bailey, 3 Barb. 
 Ch. (N. Y.) 484; and, where the right arises 
 from privity of estate, what that privity is; 
 Mitf. Eq. PI. ; it must show that the matter Is 
 material, and how; Many v. Iron Co., 9 
 Paige Ch. (N. Y.) 38S; Marsh v. Davison, 9 
 Paige Ch. (N. Y.) 580; Lane v. Stebbins, 9 
 Paige Ch. (X. Y.) 622; Stacy v. Pear 
 Rich. Eq. (S. C.) 148; and must set forth 
 the particulars of the discovery Bought; 
 Laight v. Morgan, 2 Caines Cas. (X. Y.) 344; 
 1 Y. & J. .177. Adverse examination 
 trial of a defendant will not be permitted for 
 the purpose of discovering a cause of a 
 Britton v. MacDonald, 3 Misc. 514, 2:: N. Y. 
 Supp. 350. 
 
 A bill for discovery but waiving answer 
 under oath is not demurrable for want of an 
 affidavit and cannot be treated as a bill for 
 discovery; Harrington v. Harrington, 15 R. 
 I. 341, 5 Atl. 502; if the oath has been 
 waived, the defendant is not excused from 
 answering, but he loses the benefit of his 
 own declarations, while his admissions are 
 evidence against him; Uhlmann v. Brewing 
 Co., 41 Fed. 3U9.
 
 BILL OF DISCOVERY 
 
 348 
 
 BILL OF EXCEPTIONS 
 
 It will not lie in aid of a criminal prose- 
 cution, a mandamus, or suit for a penalty; 
 2 Ves. Ch. 398; Colton v. Ross, 2 Paige Ch. 
 (N. Y.) 399, 22 Am. Dec. 648; Story, Eq. 
 Jur. § 1494; 1 Pom. Eq. Jiw. § 197. 
 
 BILL OF EXCEPTIONS. A written state- 
 ment of objections to the decision of a court 
 upon a point of law, made by a party to the 
 cause, and properly certified by the judge or 
 court who made the decision. 
 
 The object of a bill of exceptions Is to put the de- 
 cision objected to upon record for the information 
 of the court having cognizance of the cause in er- 
 ror. They were authorized by statute Westm. 2d 
 (13 Edw. I.), c. 31, the principles of which have been 
 adopted in all the states, though the statute has 
 been held to be superseded in some, by their own 
 statutes. It provides for compelling the judges to 
 sign such bills, and for securing the insertion of the 
 exceptions upon the record. They may be brought 
 by either plaintiff or defendant. Abolished in Eng- 
 land by the Judicature Act, 1873. 
 
 "The statute gives a bill of exceptions only 
 in a trial according to the course of the com- 
 mon law; and there is no other means of 
 putting evidence on a record;" Union Canal 
 Co. v. Keiser, 19 Pa. 137, per Gibson, J. 
 
 In what cases. In the trial of civil causes, 
 wherever the court, in making a decision, 
 is supposed by the counsel against whom the 
 decision is made to have mistaken the law, 
 such counsel may tender exceptions to the 
 ruling, and require the judge to authenti- 
 cate the bill; 3 Bla. Com. 372; Sowerwein 
 v. Jones, 7 Gill & J. (Md.) 335 ; Ray v. Lips- 
 comb, 48 N. C. 1S5 ; including the receiving 
 improper, and the rejecting proper, evidence ; 
 Samuel v. Withers, 9 Mo. 166; Com. v. Bos- 
 worth, 6 Gray (Mass.) 479; King v. Gray, 
 17 Tex. 62; and a failure to call the atten- 
 tion of the jury to material matter of evi- 
 dence, after request ; Ex parte Baily, 2 Cow. 
 (N. Y.) 479; and including a refusal to 
 charge the jury in a case proper for a 
 charge; Fletcher v. Howard, 2 Aik. (Vt.) 
 115, 16 Am. Dec. 686; Emerson v. Hogg, 2 
 Blatchf. 1, Fed. Cas. No. 4,440 ; Com. v. Pack- 
 ard, 5 Gray (Mass.) 101; but not including a 
 failure to charge the jury on points of law 
 when not requested ; Texas & P. R. Co. v. 
 Volk, 151 U. S. 73, 14 Sup. Ct. 239, 38 L. Ed. 
 78; Law v. Merrills, 6 Wend. (N. Y.) 274; 
 Brigham v. Wentworth, 11 Cush. (Mass.) 
 123; Rogers v. R. Co., 38 Me. 227; and in- 
 cluding a refusal to order a special verdict 
 in some cases; Syme v. Butler, 1 Call (Va.) 
 105. It can be taken to the action or want 
 of proper action of the trial court, upon any 
 proceeding in the progress of the trial from 
 the commencement of the same to its conclu- 
 sion and when properly presented can be 
 considered by the court on writ of error; 
 Wilson v. United States, 149 U. S. 67, 13 Sup. 
 Ct. 765, 37 L. Ed. 650. 
 
 An exception cannot be taken to the de- 
 cision of the court upon matters resting in 
 its discretion; Cummings v. Fullam, 13 Vt. 
 459; Law v. Merrills, 6 Wend- (N. Y.) 277; 
 
 Deloach v. Walker, 7 How. (Miss.) 164; Mos- 
 seaux v. Brigham, 19 Vt. 457; nor upon any 
 theory announced by the court, unless such 
 be expressed in particular language ; Bogk v. 
 Gassert, 149 U. S. 17, 13 Sup. Ct. 738, 37 L. 
 Ed. 631; nor for the refusal of a non-suit; 
 Ballentine v. White, 77 Pa. 20; nor where 
 the record shows a fatal error, as want of 
 jurisdiction; Fields v. Maloney, 78 Mo. 172; 
 nor, generally, in cases where there is a 
 right of appeal; Wheelock v. Moulton, 13 
 Vt. 430; though the practice in some states 
 is otherwise. 
 
 In criminal cases, at common law, judges 
 are not required to authenticate exceptions; 
 1 Chitty, C. L. 622; People v. Holbrook, 13 
 Johns. (N. Y.) 90; Wynhamer v. People, 20 
 Barb. (N. Y.) 567; Case v. Com., 1 Va. Cas. 
 264; Middleton v. Com., 2 Watts (Pa.) 285; 
 U. S. v. Gibert, 2 Sumn. 19, Fed. Cas. No. 
 15,204; but statutory provisions have been 
 made in several states authorizing the taking 
 of exceptions in criminal cases; Com. v. 
 Jones, 1 Leigh (Va.) 598; Wynhamer v. 
 People, 20 Barb. (N. Y.) 567; Osburn v. 
 State, 7 Ohio, 214, pt. 1; Donnelly v. State, 
 26 N. J. L. 463 ; Shannon v. People, 5 Mich. 
 36 ; Fife v. Com., 29 Pa. 429. 
 
 When to be taken. The bill must be ten- 
 dered at the time the decision is made ; Mid- 
 berry v. Collins, 9 Johns. (N. Y.) 345; State 
 v. Lord, 5 N. H. 336; Coburn v. Murray, 2 
 Greenl. (Me.) 336; Bratton v. Mitchell, 5 
 Watts (Pa.) 69; Hawkins' Heirs v. Lowry, 
 6 J. J. Marsh. (Ky.) 247; Agnew v. Camp- 
 bell's Adm'rs, 17 N. J. L. 291 ; Lenox v. Pike, 
 2 Ark. 14; Bompart v. Boyer, 8 Mo. 234; 
 Randolph v. Alsey, 8 Mo. 656; Croft v. Fer- 
 rell, 21 Ala. '351; Patterson v. Phillips, 1 
 How. (Miss.) 572; McKell v. Wright, 4 la. 
 504; Houston v. Jones, 4 Tex. 170; and it 
 must, in general, be taken before the jury 
 have delivered their verdict; Morris v. Buck- 
 ley, 8 S. & R. (Pa.) 211; Lanuse v. Barker, 
 10 Johns. (N. Y.) 312; Kilgore v. Bonic, 9 
 Mo. 291 ; Fugate v. Muir, 9 Mo. 355; Jones 
 v. Van Patten, 3 Ind. 107; Armstrong v. 
 Mock, 17 111. 166; Martin v. State, 25 Tex. 
 App. 557, 8 S. W. 682 ; State v. Brown, 100 
 N. C. 519, 6 S. E. 568. 
 
 In the circuit court of appeals no excep- 
 tions to rulings at a trial will be considered, 
 unless taken at the trial, embodied in a bill 
 of exceptions, presented to the judge at the 
 same term or at a time allowed by rule of 
 court made at the term, or by a standing 
 rule of court, or by consent of the parties, 
 and except under extraordinary circum- 
 stances must be allowed and filed with the 
 clerk during the same term ; New York & 
 N. E. R. Co. v. Hyde, 56 Fed. 1S8, 5 C. C. A. 
 461. See Morse v. Anderson, 150 U. S. 156, 
 14 Sup. Ct. 43, 37 L. Ed. 1037 ; U. S. v. Jones, 
 149 U. S. 262, 13 Sup. Ct. 840, 37 L. Ed. 726. 
 In practice, however, the point is merely 
 noted at the time, and the bill is afterwards 
 settled; Bull. N. P. 315; Stewart v. Hunt-
 
 BILL, OF EXCEPTIONS 
 
 34!) 
 
 BILL OF EXCEPTIuNS 
 
 lngdon Bank, 11 S. & R. (Pa.) 270, 14 Am. 
 Dec. 028; State v. Lord, 5 N. II. 336; Ship- 
 herd v. White, 3 Cow. (N. Y.) 32; Ferrell v. 
 Alder, 2 Swan (Teun.) 77; but in general 
 before the close of the term of court; Staggs 
 v. State, 3 Ilutuphr. (Tenn.) 372; Pomeroy 
 y. Selmes, 8 Mo. 7-!7 ; Sheppard v. Wilson, G 
 How. (U. S.) 200, 12 L. Ed. 430; and then 
 must appear on its face to have been signed 
 at the trial; Walton v. U. S., 9 Wheat (U. 
 S.) 051, L. Ed. 182; Law v. Merrills, 6 
 Wend. (N. Y.) 20S; Byrd v. Tucker, 3 Ark. 
 451. A bill may be sealed by the judge after 
 the record has been removed, and even after 
 the expiration of his term ; Bennett v. Davis, 
 Morris (la.) 304. See Whitcomb v. Wil- 
 liams, 4 Pick. (Mass.) 228; Consaul v. Lidell, 
 7 Mo. 250. If presented to and signed by a 
 Judge after the close of term, and the record 
 does not show any order or consent so to 
 do, the supreme court will affirm the judg- 
 ment; U. S. v. Jones, 149 U. S. 202, 13 Sup. 
 Ct. 840, 37 L. Ed. 726. 
 
 Formal proceedings. The bill must be sign- 
 ed by the judge or a majority of the judges 
 who tried the cause ; Law v. Jackson, 8 Cow. 
 (N. Y.) 746; Gordon v. Brownes' Ex'r, 3 
 Hen. & M. (Va.) 219; Kennedy v. Trustees 
 of Covington, 4 J. J, Marsh. (Ky.) 543; Dar- 
 ling v. Gill, Wright (Ohio) 73; Small v. 
 Haskins, 29 Vt. 187; Cameron v. Ward, 22 
 Ga. 108 ; upon notice of time and place when 
 and where it is to be done; Bull. N. P. 316; 
 Law v. Jackson, 8 Cow. (N. Y.) 740; Harris 
 v. State, 2 Ga. 211 ; Smith v. Burn, id. 202. 
 
 Allowing and signing a bill of exceptions 
 is a judicial act, which can only be done by 
 the judge who sat at the trial, or by the 
 presiding judge if more than one sat; con- 
 sent of counsel will not give validity ; Ma- 
 lony v. Adsit, 175 U. S." 281, 20 Sup. Ct 115, 
 44 L. Ed. 163. If the proper judge die before 
 signing it, the court will grant a hew trial ; 
 id., citing 16 C. B. 29; 3 id. 796; State v. 
 Weiskittle, 61 Md. 51. It was held in Penn. 
 Mut. Life Ins. Co. v. Ashe, 145 Fed. 593, 76 
 C. C. A. 283, 7 Ann. Cas. 491, that if a cir- 
 cuit judge dies, pending a motion for a new 
 trial, and there is no record from which his 
 successor could fairly pass upon the motion 
 and sign a bill of exceptions, his only author- 
 ity under the statute is to grant a new trial. 
 In case a judge resigns, his successor has 
 jurisdiction, in his discretion, to sign a bill 
 of exceptions; Mclntyre v. Modern Wood- 
 men of America, 200 Fed. 1. 
 
 Where the bill is presented for signature 
 within the prescribed time, one will not be 
 prejudiced by the refusal or neglect of the 
 judge to sign it within the prescribed time; 
 Hawes v. Pulver, 129 111. 123, 21 N. E. 777; 
 Wright v. Judge of Superior Court, 41 Mich. 
 726, 49 N. W. 925. The bill need not be seal- 
 ed; U. S. R. S. § 953; but must be signed 
 by the judge, and the initials "A. B." are 
 not the signature of the judge and do not 
 constitute a sufficient authentication; Origet 
 
 v. U. S., 125 U. S. 240, 8 Sup. Ct. 846, 31 L. 
 Ld. 743; Malony v. Adsit, 17 
 Sup. Ct 115, 44 L. Ed. ; 
 
 Facts not appearing on the bill are not 
 presumed; Beavers v. Smith, 11 Ai 
 Cravins v. Gant, 4 T. B. Monr. (Ky.) 126; 
 Courtney v. Com., 5 Rand. (Va.) 000 ; Snow- 
 den v. Warder, 3 Rawle (Pa.) 101; Berry v. 
 Hale, 1 How. (Miss.) 315; Pons v. Hart, 5 
 I'la. 457; Dunlop v. Munrue, 7 Cra. (1 
 270, 3 L. Ed. 329. 
 
 Effect of. The bill when sealed i 
 elusive evidence as to the facts therein stat- 
 ed as between the parties; :; Burr. 1765; 
 Bingham v. Cabbot, 3 Dall. (U. S.) 38, 1 L. 
 Ed. 491; Law v. Merrills, 6 Wend. (N. Y.i 
 276; in the suit to which it relates, but no 
 further; Shotwell v. Hamblin, 23 Miss. 156, 
 55 Am. Dec. 83; see Baylor v. Smithers, 1 
 T. B. Monr. (Ky.) 6; and all objections not 
 appearing by the bill are excluded; 8 East 
 280; Baring v. Shippen, 2 Binn. (Pa.) 16S 
 Allen v. Smith, 12 N. J. L. 160; Com. v 
 Stephens, 14 Pick. (Mass.) 370: Dean v 
 Gridley, 10 Wend. (N. Y.) 254; Newsum v 
 Newsum, 1 Leigh (Va.) 86, 19 Am. Dec. 739 
 Picket v. Allen, 10 Conn. 146; Drexel v 
 Man, 6 W. & S. (Pa.) 343; Bone v. Me 
 Ginley, 7 How. (Miss.) 671 ; Brown v. Brown, 
 7 Mo. 288; Stimpson v. R. Co., 3 How. (U. 
 S.) 553, 11 L. Ed. 722; Lewis v. Lewis. 7.". 
 la. 669, 37 N. W. 166. But see Murdock 
 v. Herndon's Ex'rs, 4 Hen. & M. (Va.) 200. 
 In the absence of a bill of exceptions point- 
 ing out the alleged errors the appellate court 
 will not review the instructions unless funda- 
 mentally erroneous; Howard v. State, 25 Tex. 
 App. 602, 8 S. W. 806. An exception to con- 
 clusions of law admits the findings of fact ; 
 Neisler v. Harris, 115 Ind. 560. 18 N. E. 39. 
 
 It draws in question only the points to 
 which the exception is taken ; Van Gordon 
 v. Jackson, 5 Johns. (N. Y.) 467; Coxe v. 
 Field, 13 N. J. L. 216: Watson v. Watson. 
 10 Conn. 75; Picket v. Allen, id. 146: and an 
 exception to an instruction will not be con- 
 sidered when the bill of exceptions does not 
 show what the evidence tended to prove; 
 Phoenix Mut Life Ins. Co. v. Raddin, 120 
 U. S. 183, 7 Sup. Ct. 500, 30 L. Ed. 644. 
 It does not of itself operate as a stay of 
 proceedings; Seymour v. Slocum. 18 Wend. 
 (N. Y.) 509; Holcombe v. Roberts. 19 Ga. 
 588. The practice of making the entire 
 charge to the jury a part of the bill of ex- 
 ceptions is strongly disapproved; Phoenix 
 Life Ins. Co. v. Raddin, 120 U. S. 183, 7 Sup. 
 Ct. 500, 30 L. Ed. G!4. 
 
 A stipulation, if it can be understood, may 
 answer in place of a bill of exceptions; Houl- 
 ehan v. Rassler, 7.". Wis. 557, 41 N. W. 720. 
 
 If the judge"s rulings and the grounds of 
 objection thereto appear of record, the right 
 of the party excepting is fully preserved 
 without the retention of a bill ; State v. 
 Judge Twenty-Third District Court 40 La. 
 Ann. 809, 5 South. 407. If the judge has
 
 BILL OF EXCEPTIONS 
 
 350 
 
 BILL OF EXCHANGE 
 
 certified and filed the record containing the 
 evidence, exceptions, and charge, he is not 
 compelled to sign a second or separate bill 
 for the party excepting ; Com. v. Arnold, 1G1 
 Pa. 320, 29 Atl. 270. Where the error is ap- 
 parent upon the record it need not be pre- 
 sented by a bill of particulars ; Moline Plow 
 Co. v. Webb, 141 U. S. 616, 12 Sup. Ct 100, 
 35 L. Ed. 879. 
 
 They have been abolished In English practice. 
 
 A curious case in McDonald v. Faulkner, 2 Ark. 
 472, shows what is probably the only instance of the 
 kind,— a bill of exceptions certified by bystanders. 
 The verdict and judgment was entered for the 
 plaintiff September 10, 1893 ; September 12 the de- 
 fendant moved for a new trial, and on the 16th the 
 motion was overruled and the defendant accepted 
 and obtained leave to prepare a bill of exceptions. 
 Under date of the 21st, the record states: "The de- 
 fendant filed his bill of exceptions, whereupon the 
 plaintiff filed his bill of exceptions certified by 
 the bystanders." To the latter the judge appended 
 a statement that he declined signing it, "not that 
 it does not contain the facts of the case, but be- 
 cause it purports to be an exception to the opinion 
 of the court in signing a bill of exceptions taken 
 to a former decision of the court in signing a bill 
 of exceptions in the progress of the cause." There- 
 upon the plaintiff's bill of exceptions was signed 
 and certified to be true by five bystanders. The 
 judgment was reversed and a new trial ordered, 
 but no mention is made of plaintiffs bill of excep- 
 tions on petition for rehearing. In an opinion de- 
 nying it, the judge refers to the "plaintiff's bill of 
 exceptions taken and signed by bystanders on the 
 25th of September," and holds him estopped by the 
 statements in it from denying the accuracy of de- 
 fendant's bill of exceptions. 
 
 BILL OF EXCHANGE. 
 
 A written order from one person to an- 
 other, directing the person to whom it is 
 addressed to pay to a third person a cer- 
 tain sum of money therein named. Byles, 
 Bills 1. 
 
 By the Negotiable Instrument Act, a bill 
 of exchange is an unconditional order in 
 writing addressed by one person to another, 
 signed by the person giving it requiring the 
 addressee to pay on demand, or at a fixed or 
 determinable future time, a sum certain in 
 money to order or to bearer. It may be 
 either an inland bill or a foreign bill, and 
 may be drawn in sets. The act defines a 
 check as a bill of exchange drawn on a bank 
 and payable on demand. See Negotiable 
 Instruments, for the states, etc., in which it 
 has been enacted. 
 
 A bill of exchange may be negotiable or non-ne- 
 gotiable. If negotiable, it may be transferred either 
 before or after acceptance. 
 
 The person making the bill, called the drawer, Is 
 said to draw upon the person to whom it is direct- 
 ed, and undertakes impliedly to pay the amount 
 with certain costs if he refuse to comply with the 
 command. The drawee is not liable on the bill till 
 after acceptance, and then becomes liable as prin- 
 cipal to the extent of the terms of the acceptance ; 
 while the drawer becomes liable to the payee and 
 indorsees conditionally upon the failure of the ac- 
 ceptor to pay. The liabilities between indorsers and 
 indorsees are subject to the same rules as those of 
 indorsers and indorsees on promissory notes. Reg- 
 ularly, the drawee is the person to become accept- 
 or; but other parties may accept, under special 
 circumstances. 
 
 A foreign bill of exchange is one of which 
 the drawer and drawee are residents of 
 
 countries foreign to each other. In this re- 
 spect the states of the United States are held 
 foreign as to each other; Phoenix Bank v. 
 Hussey, 12 Pick. (Mass.) 4S3; Wells v. White- 
 head, 15 Wend. (N. Y.) 527; Hopkins v. Clay, 
 3 A. K. Marsh. (Ky.) 488; Bank of Cape 
 Fear v. Stinemetz, 1 Hill (S. C.) 44; Brown 
 v. Ferguson, 4 Leigh (Va.) 37, 24 Am. Dec. 
 707; Green v. Jackson, 15 Me. 136; Donegan 
 v. Wood, 49 Ala. 242, 20 Am. Rep. 275 ; Todd 
 v. Neal's Adm'r, 49 Ala. 266; Rice v. Hagan, 
 8 Dana (Ky.) 133 ; Carter v. Burley, 9 N. H. 
 558; Armstrong v. Bank, 133 U. S. 433, 10 
 Sup. Ct. 450, 33 L. Ed. 747; Knickerbocker 
 Life Ins. Co. v. Pendleton, 112 U. S. 696, 5 
 Sup. Ct. 314, 28 L. Ed. 866 ; Ticonic Bank v. 
 Stackpole, 41 Me. 302; 1 Dan. Neg. Inst § 
 9. But see contra, Miller v. Hackley, 5 
 Johns. (N. Y.) 3S4, 4 Am. Dec. 372, and see 
 Grimshaw v. Bender, 6 Mass. 162. 
 
 An inland bill is one of which the drawer 
 and drawee are residents of the same state 
 or country; Ragsdale v. Franklin, 25 Miss. 
 143. As to whether a bill is considered as 
 foreign or inland when made partly in one 
 place and partly in another, see 5 Taunt. 
 529; 8 id. 679; 1 Maule & S. 87. Defined by 
 statute 19 & 20 Vict. c. 97, § 7. 
 
 The distinction between inland and foreign 
 bills becomes important with reference to 
 the question whether protest and notice are 
 to be given in case of non-acceptance. See 
 3 Kent 95; Protest. 
 
 The parties to a bill of exchange are the 
 drawer, the drawee, the acceptor, and the 
 payee. Other persons connected with a bill 
 in case of a transfer as parties to the trans- 
 fer are the indorser, indorsee, and holder. 
 See those titles. It sometimes happens that 
 one or more of the apparent parties to 
 a bill are fictitious persons. The rights of 
 a dona fide holder are not thereby prejudiced 
 where the payee and indorser are fictitious; 
 2 H. Bla. 78; 1 Campb. 130; Blodgett v. 
 Jackson, 40 N. H. 26; Benj. Chal. Dig. § 85; 
 or even where the drawer and payee are 
 both fictitious; 10 B. & C. 468; and all the 
 various parties need not be different per- 
 sons; Wildes v. Savage, 1 Sto. 22, Fed. 
 Cas. No. 17,653. The qualifications of par- 
 ties who are to be made liable by the mak- 
 ing or transfer of bills are the same as in 
 case of other contracts. See Parties; Fic- 
 titious Payee. 
 
 The bill must be written', 1 Pardessus, 344; 
 2 Stra. 955. See Goldman v. Blum, 58 Tex. 
 636. 
 
 It should be properly dated, both as to 
 place and time of making; Beawes, Lex 
 Merc. pi. 3; 2 Pardessus, n. 333; 1 B. & C. 
 398. But it is not essential to the validity 
 of a bill; 1 Dan. Neg. Inst § 82; Drake v. 
 Rogers, 32 Me. 524; Coon v. Swan, 30 Vt 
 11. If not dated, it will be considered as 
 dated at the time it was made; Seldonridge 
 v. Connable, 32 Ind. 375 ; Cowing v. Altman, 
 71 N. Y. 441, 27 Am. Rep. 70; First Nat
 
 BILL OF EXCHANGE 
 
 351 
 
 BILL OF EXCHANGE 
 
 Bank of St. Charles v. Hunt, 25 Mo. App. 
 174. Bills are sometimes ante or post-dated 
 for convenience; Union Bethel African M. 
 E. Church v. Sheriff, 33 La. Ann. 1461; Fraz- 
 ier v. Printing & Bookbinding Co., 24 Hun 
 (N. Y.) 281. 
 
 The superscription of the sum for which 
 the I j i 1 1 is payable will aid an omission in 
 the bill, but is not Indispensable; Smith v. 
 Smith, 1 R. I. 39S, 53 Am. Dec. 652; 10 Q. 
 B. Div. 30. 
 
 The t lytic of payment should be expressed; 
 but if no time is mentioned it is considered 
 as payable on demand; 2 B. & C. 157; Por- 
 ter v. Porter, 51 Me, 376; First Nat. Bank of 
 St. Charles v. Hunt, 25 Mo. App. 174; Con- 
 verse v. Johnson, 140 Mass. 22, 14 N. E. 925 ; 
 Hall v. Toby, 110 Pa. 318, 1 Atl. 369; Bos- 
 well Mfg. Co. v. Hudson, Watson & Co., 72 
 Ga. 25; L. R. 3 Q. B. 573. In Massachusetts 
 it must be payable at a definite time or at 
 such a time as can be made definite upon 
 election of the holder; Stults v. Silva, 119 
 Mass. 137; Mahoney v. Fitzpatrick, 133 
 Mass. 151, 43 Am. Rep. 502. 
 
 The place of payment may be prescribed 
 by the drawer; 8 C. B. 433; or by the ac- 
 ceptor on his acceptance ; 3 Jur. 34 ; Green 
 v. Goings, 7 Barb. (N. Y.) 652; but is not as 
 a general practice, in which last case the 
 bill is considered as payable and to be pre- 
 sented at the usual place of business of the 
 drawee, King v. Holmes, 11 Pa. 456, at his 
 residence, where it was made, or to him 
 personally anywhere; 10 B. & C. 4; M. & 
 M. 381; 4 C. & P. 35; Scott v. Perlee, 39 Ohio 
 St. 67, 48 Am. Rep. 421. 
 
 Such an order or request to pay must be 
 made as demands a right, and not asks a 
 favor; M. & M. 171; and it must be absolute, 
 and not contingent; 2 B. & Aid. 417; Wool- 
 ley v. Sergeant, 8 N. J. L 262, 14 Am. Dec. 
 419; Smurr v. Forman, 1 Ohio, 272; Van 
 Vacter v. Flack, 1 Sraedes & M. (Miss.) 393, 
 40 Am. Dec. 100; Henry v. Hazen, 5 Ark. 
 401 ; Kinney v. Lee, 10 Tex. 155. Mere civil- 
 ity in the terms does not alter the legal ef- 
 fect of the instrument. 
 
 The word pay is not necessary; deliver is 
 equally operative; 8 Mod. 364: as well as 
 other words; 9 C. B. 570; but they must be 
 words requiring payment; 10 Ad. & E. 98; 
 "U vovs plaira de payer" is, in France, the 
 proper language of a bill; Pailliet, Man. 841. 
 
 Each of the duplicate or triplicate (as the 
 case may be) bills of a set of foreign ex- 
 change contains a provision that the particu- 
 lar bill is to be paid only if the others re- 
 main at the time unpaid: see 2 Pardessus, 
 n. 342; and all the parts of the set constitute 
 but one bill; Ingraham v. Gibbs. 2 Dall. (U. 
 S.) 134, 1 L. Ed. 320. 
 
 A bill should designate the payee; 26 E. L. 
 & Eq. 404; Lyon v. Marshall. 11 Barb. (N. Y.) 
 241; Moody v. Threlkeld, 13 Ga. 55; Tittle 
 v. Thomas, 30 Miss. 122, 64 Am. Dec. 154; 
 Adams v. King, 16 I1L 169, 61 Am. Dec. 64; 
 
 and see Wheeler v. Webster, 1 E. D. Smith 
 (N. Y.) 1;' Moore v. Anderson, 8 Ind. 18; but 
 when no payee is designated, the holder by 
 indorsement may fill the blank with his own 
 2 Maule & S. 90 ; and if payable to the 
 bearer it is sufficient; 3 Burr. 1526. 
 
 To make it negotiable, it must be payable 
 to the order of the payee or to t 
 or must contain other equivalent and o 
 five words of transfer: !i 1',. & I 
 v. La Coste, 1 Dall. (V . S.i VM, 1 1 
 Downing v. Back< n \\ V.) 
 
 V.l ; PernOD v. Farmer's Adm'r, 1 
 (•Del.) 32; Hackney v. Jones. 3 Bumphr. 
 (Tenn.) 612: Reed v. Murphy, 1 
 Smurr v. Forman, 1 Ohio, 272: Raymond v. 
 Middleton, 29 Pa. 530; otherwise in 
 states of the United States by statute 
 in Scotland; Maxwell v. Goodrum, 10 B. 
 Monr. (Ky.) 2S6. But in England and the 
 United States negotiability is not essential 
 to the validity of a bill; 3 Ke: I 
 Bills & N. 12; 6 Term Vs\ : President, etc., 
 of Goshen & Minisink Turnpike Road v. 
 Ilurtin, 9 Johns. (N. Y.) 217, 6 Am. Dec 273; 
 Duncan v. Sav. Tnst, 10 Gill & J. (Md. 
 Coursin v. Ledlie's Adm'rs, 31 Fa. 506; 
 Michigan Bank v. Eldred, 9 Wall. (U. S.) 
 544, 19 L. Fd. 763; though it is otherwi 
 France; Code de Comm. art. 110. V 
 Pardessus, n. 339. The fact that the bill 
 provides that it shall bear interest from 
 date in case of failure to pay at maturity, 
 will not affect its negotiability as the rule 
 that it must be for a sum certain applit a to 
 the principal and not interest: I 
 County Bank v. Goode, 44 Mo. App, 129; nor 
 a provision that a higher rate of interest 
 shall be paid after default: Merrill v. Hur- 
 ley, 6 S. D. 592, 62 N. W. 958, 55 Am. St. 
 Rep. 859; nor will its negotiability he a 
 ed by a stipulation in it to pay a reasonable 
 attorney's fee; Bank of Commerce of Oweiis- 
 boro v. Fuqua, 11 Mont. 285, 28 Pac. 291, 
 14 L. R. A. 588, 28 Am. St. Rep. 461; Wolff 
 v. Dorsey, 38 111. App. 305; Stark v. Olsen, 
 44 Neb. 646, 63 N. W. ::7 ; Benn v. Kutzschan, 
 24 Or. 28, 32 Pac. 763; contra, Clark v. 
 Barnes, 5S Mo. App. 667; First Nat. Bank of 
 Decorah v. Laughlin, 4 N. D. 391, 61 X. W. 
 473; Woods v. North, 84 Pa. 407, 21 Am. 
 Rep. 201. 
 
 The 8um for which the bill is drawn 
 should be written in full in the body of the 
 instrument, as the words in the body g 
 in case of doubt; 5 Bingh. N. C. 425; Mean 
 v. Graham, 8 Blackf. (Ind.) Ill: Smith v. 
 Smith, 1 R. I. 39S, 53 Am. 'Dec. 652; the 
 marginal figures are not a part of the con- 
 tract, but a mere memorandum; Smith v. 
 Smith, 1 R. I. 39S, 53 Am. Dec. 652; Com. 
 v. Bank, 98 Mass. 12. 93 Am. Dec. 120. 
 
 The amount must be fixed and certain, and 
 not contingent; 2 Salk. 375; Philadelphia 
 Bank v. Newkirk, 2 Miles (Pa.) 4 12: Story 
 v. Lamb, 52 Mich. 525, IS N. W. 248. It 
 must be payable iu money, and not in mer-
 
 BILL OP EXCHANGE 
 
 352 
 
 BILL OF EXCHANGE 
 
 chandise; Jerome v. Whitney, 7 Johns. (N. 
 Y.) 321; Thomas v. Roosa, id. 401; Peay v. 
 Pickett, 1 N. & Mc. (S. C) 254; Gwinn v. 
 Roberts, 3 Ark. 72; Strader v. Batchelor, 
 8 B. Monr. (Ky.) 16S; Hosstatter v. Wilson, 
 36 Barb. (N. Y.) 307; and is not negotiable 
 if payable in bank bills or in currency or 
 other substitutes for legal money of similar 
 denominations; Hasbrook v. Palmer, 2 Mc- 
 Lean, 10, Fed. Cas. No. 6.1SS; Collins v. 
 Lincoln, 11 Vt. 268; Kirkpatrick v. McCul- 
 lough, :; llumphr. (Tenn.) 171, 39 Am. 'Dec. 
 15S; Hawkins v. Watkius, 5 Ark. 4S1 ; Mc- 
 Cormick v. Trotter, 10 S. & R. (Pa.) 94; Ir- 
 vine v. Lowry, 14 Pet (U. S.) 293, 10 L. Ed. 
 462; Batik of Mobile v. Brown, 42 Ala. 108; 
 held otherwise in Swetland v. Creigh, 15 
 Ohio, 118; Besancon v. Shirley, 9 Smedes & 
 M. (Miss.) 4.-VT; Cockrill v. Kirkpatrick, 9 
 Mo. 697: Wilburn v. Greer, 6 Ark. 255; Og- 
 den v. Slade, 1 Tex. 13 ; Fleming v. Nail, id. 
 246; Chevallier v. Buford, id. 503; Lacy v. 
 Holbrook, 4 Ala. SS; Carter v. Penn, id. 140; 
 Bull v. Bank, 123 U. S. 112, 8 Sup. Ct 62, 31 
 L. Ed. 97 ; Laird v. State, 61 Md. 309. 
 
 It is not necessary, however, that the 
 money should be current in the place of pay- 
 ment, or where the bill is drawn; it may be in 
 the money of any country whatever; Black 
 v. Ward, 27 Mich. 193, 15 Am. Rep. 162; 
 Thompson v. Sloan, 23 Wend. (N. Y.) 71, 35 
 Am. Dec. 546; King v. Hamilton, 12 Fed. 
 478; 1 Dan. Neg. Inst. § 58. But it is neces- 
 sary that the instrument should express the 
 specific denomination of money when pay- 
 able in the money of a foreign country, in 
 order that the courts may be able to ascer- 
 tain its equivalent value; otherwise it is not 
 negotiable; 1 Dan. Neg. Inst. § 58. As to 
 bills payable in Confederate money, see Thor- 
 ington v. Smith, 8 Wall. (U. S.) 12, 19 L. Ed. 
 361; The Confederate Note Case, 19 Wall. 
 (U. S.) 548, 22 L. Ed. 196; Stewart v. Sala- 
 mon, 94 U. S. 434, 24 L. Ed. 275; and that 
 title. 
 
 "Value received" is often inserted, but is 
 not of any use in a negotiable bill; Hubble v. 
 Fogartie, 3 Rich. (S. C.) 413, 45 Am. Dec. 
 775; Mandeville v. Welch, 5 Wheat. (U. S.) 
 277, 5 L. Ed. 87 ; Lines v. Smith, 4 Fla. 47 ; 
 Coursin v. Ledlie's Adm'rs, 31 Pa. 506; 3 M. 
 & S. 351. 
 
 A direction to. place to the account of some 
 one, drawer, drawee, or third person, is often 
 added, but is unnecessary; Comyns, Dig. 
 Merchant, F, 5; 1 B. & C. 398. 
 
 As per advice, inserted in a bill, deprives 
 the drawee of authority to pay the bill until 
 advised; Chitty, Bills 162. 
 
 It should be subscribed by the drawer, 
 though it is sufficient if his name appear in 
 the body of the instrument; 2 Ld. Raym. 
 1376; Claussen v. La Franz, 1 la. 231; May 
 v. Miller, 27 Ala. 515; and should be address- 
 ed to the drawee by the Christian name and 
 surname, or by the full style of the firm; 2 
 
 Pardessus, n. 335; Beawes, Lex Merc. pi. 3; 
 Chitty, Bills 186. 
 
 Provision may be made by the drawer, and 
 inserted as a part of the bill, for applying 
 to another person, for a return without pro- 
 test, or for limiting the damages for re-ex- 
 change, expense, etc., in case of the failure 
 or refusal of the drawee to accept or to 
 pay ; Chitty, Bills 188. 
 
 A bona fide holder of a bill negotiated be- 
 fore maturity merely as a security for an 
 antecedent debt is not affected, without no- 
 tice, by equities or defences between the 
 original parties; Brooklyn City & N. R. Co. 
 v. Bank, 102 U. S. 14, 26 L. Ed. 61. 
 
 A certificate, made and payable in a state 
 out of a particular fund, and purporting to 
 be the obligation of a municipal corporation, 
 is not governed by the law merchant, and is 
 open in the hands of subsequent holders to 
 the same defences as existed against the orig- 
 inal payee ; Indiana v. Glover, 155 U. S. 513, 
 15 Sup. Ct. 186, 39 L. Ed. 243. 
 
 See Indorsement; Indorsee; Indorsee; 
 Acceptance ; Protest ; Damages ; Promis- 
 sory Note; Negotiable Instrument; For- 
 eign Bill of Exchange. 
 
 BILL OF GROSS ADVENTURE. In 
 French Maritime Law. Any written instru- 
 ment which contains a contract of bottomry, 
 respondentia, or any other kind of maritime 
 loan. There is no corresponding English 
 term. Hall, Marit, Loans 182. See Bottom- 
 ry ; Respondentia. 
 
 BILL OF HEALTH. A certificate, proper- 
 ly authenticated, that a certain ship or ves- 
 sel therein named comes from a place where 
 no contagious distempers prevail, and that 
 none of the crew at the time of her depar- 
 ture were infected with any such distemper. 
 
 It is generally found on board ships com- 
 ing from the Levant, or from the coasts of 
 Barbary where the plague prevails ; 1 Marsh. 
 Ins. 408; and is necessary whenever a ship 
 sails from a suspected port, or where it is 
 required at the port of destination; Holt 
 167; 1 Bell, Comm. 5th ed. 553. 
 
 BILL OF INDICTMENT. A written accu- 
 sation of one or more persons of a crime or 
 misdemeanor, lawfully presented to a grand 
 jury. If twelve or more members of the jury 
 are satisfied that the accused ought to be 
 tried, the return is made, A true bill; but 
 when no sufficient ground is shown for put- 
 ting the accused on trial, a return is made, 
 Not a true bill, or, Not found ; formerly, Ig- 
 noramus, and this phrase is still sometimes 
 used. See Indictment ; True Bill. 
 
 BILL OF INFORMATION. One which is 
 instituted by the attorney-general or other 
 proper officer in behalf of the state or of 
 those whose rights are the objects of its care 
 and protection. It is usually termed simply 
 an information, or information in equity. 
 
 If the suit immediately concerns the right
 
 BILL OF INFORMATION 
 
 353 
 
 BILL OF INTERPLEADER 
 
 of the state, the information is generally ex- 
 hibited without a relator. If it does not im- 
 mediately concern those rights, it is conduct- 
 ed at the instance and under the immediate 
 direction of some person whose name is in- 
 serted in the information and is termed the 
 relator. In case a relator is concerned, the 
 officers of the state are not further concerned 
 than as they are instructed and advised by 
 those whose rights the state is called upon to 
 protect and establish. In such case the at- 
 torney-general simply determines in limine 
 whether the suit is one proper to be insti- 
 tuted in his name, and the subsequent pro- 
 ceedings Ae usually conducted by the solic- 
 itor of the relator at the cost of the latter. 
 See Harrison, Ch. Pr. 151 ; Mitf. Eq. PL (by 
 Tyler) 196; Information. 
 
 BILL OF INTERPLEADER. One in which 
 the person exhibiting it claims no right in 
 opposition to the rights claimed by the per- 
 sons against whom the bill is exhibited, but 
 prays the decree of the court touching the 
 rights of those persons, for the safety of the 
 person exhibiting the bill. Cooper, Eq. Plead. 
 43 ; Mitf. Eq. PL 32 ; Winfield v. Bacon, 24 
 Barb. (N. Y.) 154; Adams v. Dixon, 19 Ga. 
 513, 65 Am. Dec. 60S. 
 
 An interpleader is a proceeding in equity 
 for the relief of a party against whom there 
 are, at law, separate and conflicting claims, 
 whether in suit or not, for the same debt, 
 duty, or thing, and where a recovery by one 
 of the claimants will not, at law, protect the 
 party against a recovery for the same debt 
 or duty by the other claimant. It is out of 
 this latter circumstance that the equity to 
 relief arises ; per Bates, Ch., Hastings v. 
 Cropper, 3 Del. Ch. 165; Badeau v. Rogers, 
 2 Paige, Ch. (N. Y.) 209; and where the 
 facts present a proper case for an interplead- 
 er, equity will not entertain a bill simply to 
 restrain one of the parties claiming the fund 
 in controversy from prosecuting his claims 
 until the other party has failed to establish 
 his claim ; Hastings v. Cropper, 3 Del. Ch. 
 165 ; but leave will be granted to amend by 
 making it a bill of interpleader by adding 
 proper parties, bringing the fund into court, 
 and filing the affidavit denying collusion ; id. 
 
 A bill exhibited by a third person, who, 
 not knowing to whom he ought of right to 
 render a debt or duty or pay his rent, fears 
 he may be hurt by some of the claimants, 
 and therefore prays that they may inter- 
 plead, so that the court may judge to whom 
 the thing belongs, and he be thereby safe on 
 the payment ; Pract. Reg. 78 ; Bedell v. Hoff- 
 man, 2 Paige Ch. (N. Y.) 199; City Bank v. 
 Bangs, id. 570 ; Cameron v. The Marcellus, 
 48 N. C. 83; Hall v. Craig, 125 Ind. 523, 25 
 N. E. 538 ; Glaser v. Priest, 29 Mo. App. 1. 
 
 A bill of the former character may, in 
 general, be brought by one who has in his 
 possession property to which two or more 
 Bouv.— 23 
 
 lay claim ; Strange v. Bell, 11 Ga. 103 ; Con- 
 sociated Presbyterian Soc. of Green's Farm 
 v. Staples, 23 Conn. 544 ; Herndon v. 1 1 
 15 Ark. 389; Freeland v. Wilson, 1^ 
 380; Heusner v. Ins. Co., 47 Mo. App. 336. 
 
 Such a bill must contain the plai: 
 statement of his rights, negativing any in- 
 terest in the thing in controversy ; 3 Story, 
 Eq. Jur. § 821 ; but showing a clear title to 
 maintain the bill ; 3 Madd. 277 ; and also 
 the claims of the opposing parties; Mohawk 
 
 6 II. EL Co. v. Clute, 4 Paige Ch. (N. Y.i 384 ; 
 
 7 Hare 57 ; Robards v. Clayton, 49 Mo. App. 
 60S; that the adverse title of the claii 
 
 is derived from a common source is suffi- 
 cient ; Crane v. McDonald, 118 N. Y. 648, 23 
 N. B. 991; must have annexed to it the affi- 
 davit of the plaintiff that there is no collu- 
 sion between him and either of the parties; 
 Farley v. Blood, 30 N. II. 354; must contain 
 an offer to bring money into court if any is 
 due. the bill being demurrable, if there is 
 failure, unless it is offered or else actually 
 produced ; Mitf. Eq. PL 49 ; Barton, Suit in 
 Eq. 47, n. 1 ; must show that there are per- 
 sons In being capable of interpleading and 
 setting up opposing claims; 18 Ves. Ch. 377 ; 
 it is also demurrable if upon its face it 
 shows that one of the defendants has no 
 claim to the debt due from the complainant; 
 Pusey & Jones Co. v. Miller, 61 Fed. 401. 
 
 These proceedings should not be brought 
 except when there is no other way for one 
 to protect himself, and in order to maintain 
 the action, it is necessary to show that the 
 plaintiff has not acted in a partisan manner 
 as between the claimants; Hinckley v. 
 ter, 83 Wis. 64, 53 N. W. 21. 
 
 It should pray that the defendants set 
 forth their several titles, and interplead, set- 
 tle, and adjust their demands between them- 
 selves. It also generally prays an injunction 
 to restrain the proceedings of the claimants, 
 or either of them, at law ; and in this case 
 the bill should offer to bring the money into 
 court ; and the court will not, in general, act 
 upon this part of the prayer unless the mon- 
 ey be actually brought into court; Mohawk 
 & II. R. Co. v. Clute, 4 Paige, Ch. (N. Y.t 
 3S4 ; Richards v. Salter, 6 Johns. Ch. (N. Y.) 
 445. 
 
 In the absence of statutes, such a bill does 
 not ordinarily lie, except where there is priv- 
 ity of some sort between all the parties, and 
 where the claim by all is of the same nature 
 and character; 3 Beav. 579; Story, Eq. Jur. 
 § 807; Lincoln v. R. Co., 24 Yt. 639; White 
 Water Valley Canal Co. v. Comegys, 2 Ind. 
 469. The granting of an order of interplead- 
 er is within the Judicial discretion; Taylor 
 v. Satterthwaite, 2 Misc. 441, 22 N. Y. Supp. 
 187. 
 
 The decree for interpleader may be obtain- 
 ed after a hearing in the usual manner; 4 
 Bro. Ch. 297; City Bank v. Bangs, 2 Paige, 
 Ch. (N. Y.) 570 ; or without a hearing, if the
 
 BILL OF INTERPLEADER 
 
 354 
 
 BILL OF INTERPLEADER 
 
 defendants do not deny the statements of the 
 bill-; 16 Ves. Ch. 203 ; Story, Eq. PL § 297 a. 
 
 A bill in the nature of a bill of interplead- 
 er will lie in many cases by a party in in- 
 terest to ascertain and establish his own 
 rights, where there are other conflicting 
 rights! between third persons; Story, Eq. PL 
 § 297 b ; Bedell v. Hoffman, 2 Paige, Ch. (N. 
 Y.) 199; Cameron v. The Marcellus, 48 N. 
 C. 83. 
 
 In a bill of interpleader the complainant 
 being indifferent between the parties, the 
 duty of his solicitor is ended as such, when 
 the bill is filed, and he has no interest in the 
 decree except that the bill shall be adjudged 
 to be properly tiled. The solicitor may then 
 appear for one of the parties, but only by 
 leave of the court, which will be granted 
 only upon consideration of the special cir- 
 cumstances of the facts of the case and the 
 conclusion that the case is a proper one for 
 granting the leave ; Morrow v. Robinson, 4 
 Del. Ch. 534, note; Webster v. McDaniel, 2 
 id. 297 ; and see Houghton v. Kendall, 7 Al- 
 len (Mass.) 72. See Interpleader. 
 
 A bill of interpleader is said in 22 Harv. 
 L. R. 294, to lie on behalf of one who is in 
 the position of an innocent stakeholder who 
 is ready to do his duty, in order to free 
 him from subjection to two suits and the 
 possibility of a double liability. The requi- 
 sites of the suit are, roughly speaking, ten 
 in number: 1. The adverse claims must be 
 mutually exclusive ; National Ins. Co. v. Pin- 
 grey, 141 Mass. 411, 6 N. E. 93; Bassett v. 
 Leslie, 123 N. Y. 396, 25 N. E. 386. It would 
 be manifestly unjust to make the claimants 
 fight each other when the validity of one 
 claim is not dependent upon the invalidity 
 of the other; there can then be no dispute 
 between the claimants. For this reason, if 
 one of the claimants gets a verdict or judg- 
 ment the bill no longer lies ; see Maxwell v. 
 Leichtman, 72 N. J. Eq. 780, 65 Atl. 1007. 
 2. The complainant must be willing to bring 
 into court or surrender all that is claimed 
 by either defendant ; M. & H. R. Co. v. Clute, 
 4 Paige (N. Y.) 384. If he has a counter- 
 claim against either claimant he cannot have 
 it determined in such a proceeding. 3. The 
 position of the stakeholder must be such a 
 precarious one that he really needs the aid 
 of equity to prevent injustice. Thus, one 
 who is in possession of land claiming no title 
 need only move out. So also the bill does 
 not lie if all the claims would be settled in 
 one suit at law; Fitts v. Shaw, 22 R. I. 17, 
 46 Atl. 42 ; or if one of the claims is clearly 
 invalid ; M. & H. R. Co. v. Clute, supra; or 
 both are illegal; Applegarth v. Colley, 2 
 Dowl. N. S. 223. 4. There must be no col- 
 lusion between the complainant and either 
 claimant; Murietta v. So. Amer. Co., 62 L. 
 J. Q. B. N. S. 396. The bill lies to help only 
 a disinterested stakeholder. 5. The stake- 
 holder must not have been placed in his pre- 
 carious position through his own fault; 
 
 ■ Horner v. Willcocks, 1 Ir. Jur. O. S. 136 ; 
 and he must not be guilty of laches in pur- 
 suing his remedy. 6. If equity is unable to 
 enjoin the prosecution of one of the claims 
 at law, it can give no relief. Thus a state 
 court declined to entertain a bill because it 
 
 ! could not enjoin a federal court from en- 
 forcing its judgment; Smith v. Reed, 74 N. 
 J. Eq. 776, 70 Atl. 961. These six requisites 
 are based on sound principles of justice. 
 The following, although supported by author- 
 ity, are extremely technical and will be 
 found upon examination to have a doubtful 
 equitable basis. 7. It is often required that 
 all the claims be derived from %. common 
 source ; First Nat. Bank v. Bininger, 26 N. J. 
 Eq. 345. This is a survival of the narrow 
 view of interpleader held by the common 
 law. The requisite of privity is foreign to 
 the purpose of the bill ; for the position of a 
 stakeholder is equally precarious irrespective 
 of the sources from which the defendants de- 
 rive their claims. The refusal to allow an 
 interpleader therefore seems unsound; see 
 Crane v. McDonald, 118 N. Y. 648, 23 N. E. 
 991; 17 Harv. L. Rev. 489. 8. It is some- 
 times required that the stakeholder have no 
 claim or interest in the stake ; see 4 Pomeroy, 
 Eq. Jurisp. § 1325 ; Maclennan, Interpleader 
 64. If the amount of the stakeholder's charge 
 is disputed, the bill will not lie; Lawson v. 
 Warehouse Co., 70 Hun 281, 24 N. Y. Supp. 
 281 ; but it is otherwise if the claim is avail- 
 able against, and admitted by, both defend- 
 ants; Gibson v. Goldthwaite, 7 Ala. 281, 42 
 Am. Dec. 592. The result should be the same 
 where the lien is available against only one 
 of the defendants, if he does not dispute it. 
 Hence this requirement is really covered by 
 the second class above. 9. The stakeholder 
 must hava incurred no collateral or inde- 
 pendent liability to either claimant ; Bartlett 
 v. His Imperial Majesty, 23 Fed. 257 ; Craws- 
 hay v. Thornton, 2 My. & C. 1 ; contra, At- 
 tenborough v. London, etc., Co., 3 C. P. D. 
 450 (statutory) ; since, it is argued, one of 
 the claimants may be subjected to two suits 
 to enforce his rights. On the contrary (and 
 this seems to be the better and more modern 
 view) the bill will settle once and for all the 
 ownership of the res; and it may settle the 
 whole controversy; see In re Mersey Docks, 
 [1890] 1 Q. B. 546. The fact of the collateral 
 liability is immaterial and relief should 
 therefore be granted. 10. Lastly, it is in- 
 sisted that the same thing, debt, or duty, 
 must be claimed by all the defendants; Slan- 
 ey v. Sidney, 14 M. & W. 800. See 4 Pom- 
 eroy, Eq. Jurisp. § 1323. This however seems 
 unnecessarily refined in its technicality. So 
 long as the claims are mutually exclusive, 
 and the stakeholder is willing to bring into 
 court the full amount claimed by either, it 
 would seem that he should be entitled to 
 maintain his bill. And in a few cases it has 
 so been held ; Thomson v. Ebbets, Hopk. 
 Ch. (N. Y.) 272.
 
 BILL OF INTERPLEADER 
 
 355 
 
 BILL OF LADING 
 
 In Hayward & Clark v. McDonald, 192 
 Fed. 890, 113 C. C. A. 368, it was said that 
 the true limits of equity jurisdiction in bills 
 of interpleader is not precisely settled ; but 
 that a strict bill is one in which the com- 
 plainant claims no relief against either de- 
 fendant. There are, however, innumerable 
 cases of bills in the nature of bills of inter- 
 pleader in which the complainant may be en- 
 titled to relief by such bill ; among these is a 
 case where the complainant has property in 
 which others have conflicting claims, but in 
 which the complainant may have equitable 
 rights himself, citing Van Winkle v. Owen, 
 54 N. J. Eq. 253, 34 Atl. 400; Stephenson & 
 Coon v. Burdett, 56 W. Va. 109, 48 S. B. 846, 
 10 L. R. A. (N. S.) 748; Groves v. Sentell, 
 153 U. S. 465, 14 Sup. Ct 898, 38 L. Ed. 785. 
 
 BILL OF LADING. The written evidence 
 of a contract for the carriage and delivery 
 of goods sent by sea for a certain freight. 
 
 A written acknowledgment of the receipt 
 of certain goods and an agreement for a con- 
 sideration to transport and to deliver the 
 same at a specified place to a person therein 
 named or his order. See Porter, Bills of 
 Lading. See also The Delaware, 14 Wall. 
 (U. S.) 506, 20 L. Ed. 77!). 
 
 It is at once a receipt and a contract ; St 
 Louis, I. M. & S. R. Co. v. Knight, 122 U. S. 
 79, 7 Sup. Ct. 1132, 30 L. Ed. 1077 ; Schouler, 
 Pers. Prop. 40S; but it has been said that 
 rather than to consider it as a mere receipt, 
 it seems better to regard it as analogous to a 
 negotiable instrument; 19 Harv. L. Rev. 391. 
 A bill of lading ordinarily represents title to 
 the goods covered by it; Peters v. Elliott, 
 78 111. 321 ; and this is said to be the preva- 
 lent American view ; 12 Harv. L. Rev. 436. 
 
 A memorandum or acknowledgment in writ- 
 ing, signed by the captain or master of a 
 ship or other vessel, that he has received in 
 good order on board of his ship or vessel, 
 therein named, at the place therein mention- 
 ed, certain goods therein specified, which he 
 promises to deliver in like good order (the 
 dangers of the sea excepted) at the place 
 therein appointed for the delivery of the 
 same, to the consignee therein named, or to 
 his assigns, he or they paying freight for the 
 same ; 1 Term 745 ; Abb. Sh. 216 ; Code de 
 Comm. art. 2S1. 
 
 A similar acknowledgment made by a car- 
 rier by land. 
 
 A through bill of lading is one where a 
 railroad contracts to transport over its own 
 line for a certain distance carloads of mer- 
 chandise or stock, there to deliver the same 
 to its connecting lines to be transported to 
 the place of destination at a fixed rate per 
 car-load for the whole distance; Gulf. C. & 
 S. F. R. Co. v. Vaughn, 4 Willson, Ct. App. 
 Tex. § 1S2, 16 S. W. 775. 
 
 It should contain the name of the shipper 
 or consignor; the name of the consignee; 
 
 the names of the vessel and her master ; the 
 places of shipment and destination ; the price 
 of the freight, and, in the margin, the marks 
 and numbers of the things shipped. Jacob- 
 sen, Sea Laws. 
 
 The general rule that contracts are gov- 
 erned as to nature, validity, and interpreta- 
 tion by the lex loci contractus, unless it 
 clearly appears that the parties had some 
 other law in view, is applicable to a bill of 
 lading; Brockway v. Exp. Co., 171 Mass. 158, 
 50 N. E. 626; Frasier v. EL, 73 S. C. 1 
 S. E. 964; Illinois Cent. R. Co. v. Bee! •> 
 111. 13, 50 N. E. 1010, 42 L. R. A. 210, 66 Am. 
 St, Rep. 2",::; Herf & Frerichs Chemical Co. 
 v. Lackawanna Line, 100 Mo. App. 164, 73 S. 
 W. 346; but where one provides for the de- 
 livery of goods in a state it has been held 
 to be a contract of that state although made 
 in another state; Pennsylvania Co. v. Yoder, 
 25 Ohio Cir. Ct. 32; C, C, C. & St. L. By. 
 Co. v. Simon, 15 id. 123. Any reasonable 
 doubt as to the construction of the printed 
 portion should be resolved against the car- 
 rier; Baltimore & O. R. Co. v. Doyle, 142 
 Fed. 669, 74 C. C. A. 245. 
 
 Writing is unnecessary and an oral con- 
 tract satisfactorily proved, if there is no 
 fraud or imposition, is equally obligatory; 
 Missouri K. & T. By. Co. v. Patrick, 144 Fed. 
 032. 75 C. C. A. 434. A promise to carry on 
 the faith of which the shipper buys goods is a 
 contract of carriage ; Bigelow v. Ry. Co., 104 
 Wis. 100. SO N. W. 05 ; Meloche v. By. Co., 
 116 Mich. 69, 74 N. W. 301; and so is the 
 receipt of goods and undertaking to deliver ; 
 Indiana, I. & I. R. Co. v. Mfg. Co., 118 111. 
 App. 652 ; but a mere promise to ship is not 
 sufficient; Southern Ry. Co. v. Wilcox, 99 
 Va. 394, 39 S. E. 144. It was held in effect 
 that the legal liability of a common carrier 
 is part of the contract as if written in it; 
 Evansville & T. II. R. Co. v. McKinney, 34 
 Ind. App. 402, 73 N. E. 14S ; and so is the 
 obligation to ship within a reasonable time; 
 Pennsylvania Co. v. Clark, 2 Ind. App. 146, 
 27 N. E. 586, 28 N. E. 208. 
 
 Ordinarily parol evidence is not admissible 
 in the absence of fraud or mistake to vary a 
 bill of lading; Inman & Co. v. R. Co., 159 
 Fed. 960; De Sola v. Pomares, 119 Fed 373; 
 Tallassee Falls Mfg. Co. v. R. R., 117 Ala. 
 520, 23 South. 139, 67 Am. St. Rep. 17!»; 
 Choutoaux v. Leech & Co., IS Pa. 22 t. :,7 Am. 
 Dec. 602 ; Keller v. R. Co., 10 Pa. Super. CL 
 240; Gibbons v. Robinson, 63 Mich. 146, 29 
 N. W. ;">::.", ; but it has been held com; 
 to contradict a statement that the goods were 
 received in apparent good order; Foley v. R. 
 Co., 06 N. Y. Supp. 182; and. of course, in 
 case of error or fraud ; Sonia Cotton-Oil Co. 
 v. The Red River. 106 La. 42, 30 South. 303, 
 S7 Am. St. Rep. 2'.r.; and it is said to make 
 a prima facie case only and to be open to ex- 
 planation; Planters' Fertilizer Mfg. Co. v. 
 Elder, 101 Fed. 1001, 42 C. C. A. 130; or to
 
 BILL OF LADING 
 
 356 
 
 BILL OP LADING 
 
 correct an omission or ambiguity ; Louis- 
 ville & N. It. Co. v. Duncan, 137 Ala. 446, 34 
 South. 9SS; either as to the route; Louis- 
 ville & N. R. Co. v. Duncan, 137 Ala. 446, 34 
 South. 9S8 ; or the time of arrival ; Sloop v. 
 R. Co., 117 Mo. App. 204, 84 S. W. 111. 
 
 Where the conditions are on the face and 
 in the body of the bill of lading, and the 
 consignor receives it and ships the goods 
 without complaint, he is presumed to have 
 assented to these conditions, and they be- 
 come, if not inimical to law, a valid con- 
 tract. The shipper's signature is not essen- 
 tial ; Inman & Co. v. R. Co., 159 Fed. 960 ; 
 Smith v. Express Co., 108 Mich. 572, 66 N. 
 W. 479; Grace v. Adams, 100 Mass. 505, 97 
 Am . Dec. 117, 1 Am. Rep. 131; Com. v. R. 
 Co., 194 U. S. 427, 24 Sup. Ct. 663, 48 L. Ed. 
 1053. 
 
 An exception in a bill of lading, limits the 
 liability, not the duty; hence it is the duty 
 of the owner by himself and his servants to 
 do all he can to avoid the excepted perils; 
 Bowen, L. J., in [1891] 1 Q. B. 619 (C. A.). 
 
 An exception of losses caused by (inter 
 alia) "pirates, robbers, or thieves of what- 
 ever kind, whether on board or not, by land 
 or sea," did not apply to thefts committed 
 by persons in the service of the ship ; [1891] 
 1 Q. B. 619 (C. A.). 
 
 Exceptions in a bill of lading are to be 
 construed most strongly against the ship- 
 owner. As between the shipowner and the 
 shipper, the bill of lading only can be con- 
 sidered as the contract; The Caledonia, 157 
 TJ. S. 124, 15 Sup. Ct 537, 39 L. Ed. 644i. 
 
 Under the Harter Act (q. *;.) there is pro- 
 vided in section 2 a prohibition of the in- 
 sertion "in any bill of lading or shipping 
 document" of any covenant or agreement re- 
 lieving the owner from the exercise of due 
 diligence in equipping, etc., vessels. The 
 Southwark, 191 U. S. 1, 24 Sup. Ct. 1, 48 L. 
 Ed. 65. Under this act a stipulation limit- 
 ing the liability of a vessel owner to $100 
 was held invalid, not only under the Harter 
 Act but under the decisions upon the sub- 
 ject generally; Calderon v. S. S. Co., 170 U. 
 S. 272, 18 Sup. Ct. 5S8, 42 L. Ed. 1033. As 
 to the construction of the Harter Act gener- 
 ally, see Ship. 
 
 Though it is not necessary that the ship- 
 per should sign the bill of lading, yet if its 
 terms restrict the carrier's common-law lia- 
 bility, his assent thereto must be shown. 
 This assent need not be express, it is suffi- 
 ciently indicated by an acceptance of the bill 
 of lading containing the restrictions; Port. 
 B. of L. 157; Lawrence v. R. Co., 36 Conn. 
 63; Wertheimer v. R. Co., 1 Fed. 232; Mc- 
 Millan v. R. Co., 16 Mich. 79, 93 Am. Dec. 
 20S ; Boorman v. Exp. Co., 21 Wis. 152; Rob- 
 inson v. Transp. Co., 45 la. 476. Where the 
 bill contains a limitation of the carrier's 
 common law liability and is accepted by the 
 shipper, there is a limitation of the liability 
 
 which binds all the parties, although the 
 shipper could not read, and did not know 
 of the limitation in the bill ; Jones v. R. Co., 
 89 Ala. 376, 8 South. 61; Grace v. Adams, 
 100 Mass. 505, 97 Am. Dec. 117, 1 Am. Rep. 
 131; Nines v. R. Co., 107 Mo. 475, 18 S. W. 
 26; Dimmitt v. R. Co., 103 Mo. 433. 15 S. W. 
 761. See Louisville & N. R. Co. v. Meyer, 78 
 Ala. 597. 
 
 A bill of lading is usually made in three 
 or more original parts, one of which is sent 
 to the consignee with the goods, one or more 
 others are sent to him by different convey- 
 ances, one is retained by the merchant or 
 shipper, and one should be retained by the 
 master. Abbott, Shipp. 217; 2 Dan. Neg. 
 Inst. § 1735. Where one is marked "origi- 
 nal" and the other "duplicate," the latter is 
 in effect an original; Missouri Pac. R. Co. v. 
 Heidenheimer, 82 Tex. 195, 17 S. W. 60S, 27 
 Am. St. Rep. 861. 
 
 It is regarded as so much merchandise of 
 the kind covered by it; Shaw v. R. Co., 101 
 U. S. 557, 25 L. Ed. 892. It is not negotia- 
 ble, but rather a symbol or representative of 
 the goods themselves ; id; Raleigh & Gas- 
 ton R. Co. v. Lowe, 101 Ga. 320, 28 S. E. 867 ; 
 Brown v. Babcock, 3 Mass. 29; Stollenwerck 
 v. Thacher, 115 Mass. 224. At common law 
 it is quasi negotiable; 1 T. R. 63; Lickbar- 
 row v. Mason, 1 Sm. L. C. 114S; National 
 Bank of Bristol v. R. Co., 99 Md. 661, 59 
 Atl. 134, 105 Am. St. Rep. 321 ; and in many 
 of the states is made so by statute. A stat- 
 ute making bills of lading negotiable by en- 
 dorsement does not impart to them all the 
 characteristics of bills and notes; Shaw v. 
 R. Co., 101 U. S. 557, 25 L. Ed. 892. The 
 mere sending of a bill of lading without en- 
 dorsement or actual delivery of the goods 
 to the consignee does not, of itself, pass title ; 
 Delta Bag Co. v. Kearns, 112 111. App. 269; 
 it is prima facie evidence, but not conclu- 
 sive; Harrison v. Hixson, 4 Blackf. (Ind.) 
 226; but delivery without endorsement as 
 security for advances, or for a valuable con- 
 sideration, transfers title ; Lewis v. Bank, 
 166 111. 311, 46 N. E. 743; Jeffersonville R. 
 Co. v. Irvin, 46 Ind. 180; American Zinc 
 Lead & Smelting Co. v. Lead Works, 102 
 Mo. App. 158, 76 S. W. 60S; National Ne- 
 wark Banking Co. v. R. Co., 70 N. J. L. 774, 
 58 Atl. 311, 66 L. R. A. 595, 103 Am. St. Rep. 
 825; Neill v. Produce Co., 41 W. Va. 37, 
 23 S. E. 702. There may also be construc- 
 tive delivery; White Live Stock Commission 
 Co. v, R. Co., 87 Mo. App. 330; Storey v. 
 Hershey, 19 Pa. Super. Ct. 4S5; or by way 
 of estoppel against the carrier and also 
 against the shipper and endorser ; Rowley v. 
 Bigelow, 12 Pick. (Mass.) 307, 23 Am. Dec. 
 607. 
 
 It is also assignable by endorsement, where- 
 by the assignee becomes entitled to the goods 
 subject to the shipper's right of stoppage 
 in transitu, in some cases, and to various
 
 BILL OF LADING 
 
 357 
 
 BILL OF LADING 
 
 
 liens; Port. B. of L. 438; Pollard v. Rear- 
 don, 65 Fed. 848, 13 C. C. A. 171. See Liens ; 
 Stoppage in Transitu. 
 
 By endorsement to a vendee, the vendor 
 transfers the possession to him ; People v. 
 Midkiff, 71 111. App. 141; and the property; 
 Law v. Hatcher, 4 Blackf. (Ind.) 364. As 
 against the carrier, when the bill of lading 
 is attached to sight drafts, the transferee is 
 entitled to receive the goods; Walters v. R. 
 Co., 66 Fed. 862, 14 C. C. A. 267 ; or to sue 
 for wrongful delivery; Tishomingo Sav. Inst 
 v. Johnson (Ala.) 40 South. 503 ; to the pledg- 
 or without surrender of the bills; Chesa- 
 peake S. S. Co. v. Bank, 102 Md. 5S9, 63 
 Atl. 113; even when the bill of lading did 
 not contain the words "or order"; Chicago 
 & S. R. Co. v. Bank, 26 Ind. App. 600, 59 N. 
 E. 43. One in possession under a bill of 
 lading can sue for conversion against one 
 with no better title ; Adams v. O'Connor, 100 
 Mass. 515, 1 Am. Rep. 137. Placing a car on 
 a side track and notifying the transferee is 
 a sufficient delivery ; Anchor Mill Co. v. Ry. 
 Co., 102 la. 262, 71 N. W. 255. The assignee 
 of a bill of lading as collateral security for 
 drafts upon the consignee is in a general 
 sense the absolute owner of the goods; 2 
 Term 63; at least to the extent and until 
 payment of the drafts ; Dows v. Bank, 91 
 XL S. 618, 23 L. Ed. 214; Willman Mercan- 
 tile Co. v. Fussy, 15 Mont. 514, 39 Pac. 738, 
 
 48 Am. St Rep. 698; Missouri Pac. R. Co. 
 v. Law, 57 Neb. 560, 78 N. W. 291 ; and the 
 consignee takes the goods subject to the 
 rights of the holder of the bill of lading and 
 cannot set off the price against a debt due 
 from the consignor ; Emery v. Bank, 25 Ohio 
 St 360, 18 Am. Rep. 299. But in Mason v. 
 Cotton Co., 148 N. C. 492, 62 S. E. 625, 18 
 L. R. A. (N. S.) 1221, 128 Am. St. Rep. 635, 
 it was held that the right of such assignee 
 does not extend so far as to make him lia- 
 ble for a breach of warranty by the consign- 
 or in the sale of the property, and the case in 
 Finch v. Gfegg, 126 N. C. 176, 35 S. E. 251, 
 
 49 L. R. A. 679, which was contra (and which 
 the Supreme Court of Alabama followed in 
 Haas v. Bank, 144 Ala. 562, 39 South. 129, 
 1 L. R. A. [N. S.] 242, 113 Am. St. Rep. 61, 
 and the Supreme Court of Tennessee refused 
 to follow in Leonhardt <Si Co. v. Small & Co., 
 117 Tenn. 153, 96 S. W. 1051, 6 L. R. A. [N. 
 S.] 8S7, 119 Am. St Rep. 994) , was expressly 
 overruled after having been subjected to much 
 criticism. See the above cited cases, the 
 opinions in which and the annotations collect 
 the cases. 
 
 But the assignee obtains by such assign- 
 ment only the title of his assignor, and the 
 negotiability is mostly the quality of trans- 
 ferability by endorsement and delivery which 
 enables the rightful assignee to sue in his 
 own name; Shaw v. R. Co., 101 U. S. 557, 
 25 L. Ed. 892 ; Stollenwerck v. Thacher, 115 
 Mass. 224; Dickson v. Elevator Co., 44 Mo. 
 
 App. 498. It is only negotiable so far that the 
 owner may transfer it by endorsement or as- 
 signment so as to vest the legal title in the 
 assignee; Douglas v. Bank, 86 Ky. 1 
 S. \V. IL'0, 9 Am. St. Rep. 
 
 Delivery of a bill of lading is delivery of 
 the property; Forbes v. R. Co., 133 Mass. 
 164 ; but the transfer from one who wrong- 
 fully attains it, having no title to the 
 erty shipped, passes no title as against the 
 true owner ; Merchants' Nat. Bank v. Bales, 
 148 Ala. 279, 41 South. 516; and the trans- 
 fer by endorsement of a bill of lading, drawn 
 to the shipper's order, vests the title to the 
 goods in the transferee, as purchaser or pled- 
 gee, as the case may be; Scheuermann v. 
 Fruit Co., 123 La. 55, 4S South. (JIT. 
 
 It is considered to partake of the character 
 of a written contract, and also of that of a 
 receipt; St. Louis, I. M. & S. Ry. Co. v. 
 Knight, 122 U. S. 79, 7 Sup. Ct 1132, 30 L. 
 Ed. 1077 ; Schoul. Pers. Prop. 40S ; The Mis- 
 souri v. Webb, 9 Mo. 193 ; Mears v. R. Co., 
 75 Conn. 171, 52 Atl. 610, 56 L. R. A. 884, 
 96 Am. St. Rep. 192; Chicago & N. W. Ry. 
 Co. v. Simon, 160 111. 648, 43 N. E. 596. In 
 so far as it admits the character, quality, or 
 condition of the goods at the time they were 
 received by the carrier, it is a mere receipt, 
 and the carrier may explain or contradict it 
 by parol; Missouri Pac. R. Co. v. McFad- 
 den, 154 U. S. 155, 14 Sup. Ct. 990, 38 L. 
 Ed. 944 ; Fasy v. Nav. Co., 77 App. Div. 469, 
 79 N. Y. Supp. 1103, affirmed without opin- 
 ion Fasy v. Nav. Co., 177 N. Y. 591, To X. 
 E. 1098; Baltimore & O. R. Co. v. Wilkens, 
 44 Md. 11, 22 Am. Rep. 26; but as respects 
 the agreement to carry and deliver, it is 
 a contract, and must be construed accord- 
 ing to its terms; Ellis v. Willard, 9 N, 
 Y. 529; White v. Van Kirk, 25 Barb. (N: 
 Y.) 16 ; 1 Abb. Adm. 209. 397 ; Louisville & 
 N. R. Co. v. Fulgham, 91 Ala. 555, S South. 
 803; Snow v. R. Co., 109 Ind. 422, 9 X. E. 
 702 ; Portland Flouring Mills Co. v. Ins. Co., 
 130 Fed. 860, 65 C. C. A. :; 14. affirming British 
 & Foreign Marine Ins. Co. v. Mills Co., 124 
 Fed. S55. And see Rhodes v. Newhall, 126 
 N. Y. 574, 27 N. E. 947, 22 Am. St Rep. 859. 
 
 One who receives it without objection is 
 presumed to have assented to its terms; Cox 
 v. R. Co., 170 Mass. 129, 49 N. E. 97 ; mere 
 ignorance from failure to read or ascertain 
 them is not sufficient in the absence of fraud 
 or concealment; Schaller v. Ry. Co., '.»7 Wis. 
 31, 71 N. W. 1042. Reasonable doubt as to 
 the construction of its printed terms is re- 
 solved against the carrier; Baltimore & O. 
 R. Co. v. Doyle, 142 Fed. 669, 74 O. C. A. 
 245, affirming Doyle v. R. Co., 126 Fed. 841. 
 Where a bill of Lading Is given, and accepted 
 without objection, it is the real contract by 
 which the mutual obligations of the parties 
 is to be governed and not any prior agree- 
 ment ; The Caledonia, 43 Fed. 6S1. 
 
 Stipulations stamped on it before delivery
 
 BILL OF LADING 
 
 358 
 
 BILL OF LADING 
 
 are part of the contract ; The Henry B. 
 Hyde, 82 Fed. 681. And one in a bill of lad- 
 ing that all claims for damages must be pre- 
 sented within 30 days from its date is rea- 
 sonable; The Queen of the Pacific, ISO U. 
 S. 49, 21 Sup. Ct. 278, 45 L. Ed. 419; as is 
 also an exemption of loss by fire though the 
 regular freight rates were charged; Arthur 
 v. R. Co., 204 U. S. 506, 27 Sup. Ct. 338, 51 
 L. Ed. 590. In an action against a carrier 
 for damages to property transported the 
 shipper cannot set up a special contract and 
 recover on an implied one, nor can he rely 
 on a parol agreement and recover on proof 
 of a written contract; Evansville & T. H. R. 
 Co. v. McKinney, 34 Ind. App. 402, 73 N. E. 
 148. 
 
 A clean bill of lading is one which con- 
 tains nothing in the margin qualifying the 
 words in the bill of lading itself; 61 Law 
 T. 330. Under a "clean" bill of lading in 
 the usual form (viz., one having no stipula- 
 tion that the goods shipped are to be carried 
 on deck), there is a contract implied that 
 the goods shall be carried under the deck; 
 and parol evidence to the contrary will not 
 be received; Creery v. Holly, 14 Wend. (N. 
 Y.) 26; Say ward v. Stevens, 3 Gray (Mass.) 
 97; The Governor Carey, 2 Hask. 487, Fed. 
 Cas. No. 5,G45a ; but evidence of a well-known 
 and long-established usage is admissible, and 
 will justify the carriage of goods on deck, 
 though, under a general rule, the party re- 
 lying on a local custom must prove it by clear 
 and conclusive evidence; The 'Paragon, 1 
 Ware 322, Fed. Cas. No. 10,708. 
 
 See Carriers; Freight; Shipping; Hart- 
 er Act. 
 
 It was decided in England that the master 
 of a ship who signed a bill of lading for 
 goods which had never been received was not 
 to be regarded as the agent of the owner so 
 as to make the latter responsible; 10 C. B. 
 665. This decision was immediately followed 
 by an act of Parliament, which makes clear 
 the right of a holder for valuable considera- 
 tion of such a bill of lading as against the 
 master or other person signing the bill, un- 
 less the holder of the bill had notice that the 
 goods had not been taken on board; 18 & 
 19 Vict. The statute makes the bill conclu- 
 sive against the person who signed the docu- 
 ment; 18 Q. B. D. 147. As far as the ship- 
 owner or other principal of the agent issuing 
 the document is concerned, the law of the 
 first decision has been constantly followed in 
 England; [1902] A. C. 117; Scotland; 25 
 Sc. L. Rep. 112; and Canada; 5 Duval 179. 
 In the United States the question has given 
 rise to great difference of opinion. Most of 
 the cases relate to bills of lading issued by 
 station agents of railroads. The English 
 rule has been followed in Missouri P. R. 
 Co. v. McFadden, 154 U. S. 155, 14 Sup. Ct. 
 990, 38 L. Ed. 944 ; Friedlander v. R. Co., 130 
 U. S. 416, 9 Sup. Ct. 570, 32 L. Ed. 991; 
 Pollard v. Vinton, 105 U. S. 7, 26 L. Ed. 
 
 998; Clark v. S. S. Co., 14S Fed. 243; The 
 I sola Di Procida, 124 Fed. 942; The Asphodel, 
 53 Fed. 835; Martin v. Ry. Co., 55 Ark. 510, 
 19 S. W. 314; National Bank of Commerce 
 v. R. Co., 44 Minn. 224, 46 N. W. 342, 560, 
 9 L. R. A. 263, 20 Am. St. Rep. 566; Haz- 
 ard v. R. Co., 67 Miss. 32, 7 South. 280; 
 Louisiana Nat. Bank v. Laveille, 52 Mo. 380; 
 Williams v. R. Co., 93 N. C. 42, 53 Am. Rep. 
 450; Anderson v. Mills Co., 37 Or. 483, 60 
 Pac. 839, 50 L. R. A. 235, 82 Am. St. Rep. 
 771; Roy & Roy v. R. Cd., 42 Wash. 572, 85 
 Pac. 53, 6 L. R. A. (N. S.) 302, 7 Ann. Cas. 
 728. Other cases hold that as against a 
 bona fide purchaser the principal is estopped; 
 Jasper Trust Co. v. R. Co., 99 Ala. 416, 14 
 South. 546, 42 Am. St. Rep. 75; Relyea v. 
 Mill Co., 42 Conn. 579; Wichita Sav. Bank 
 v. R. Co., 20 Kan. 519; Sioux City & Pac. R. 
 Co. v. Bank, 10 Neb. 556, 7 N. W. 311, 35 
 Am. Rep. 488; Armour v. R. Co., 65 N. Y. 
 Ill, 22 Am. Rep. 603 ; Brooke v. R. Co., 108 
 Pa. 529, 1 Atl. 206, 56 Am. Rep. 235; Watson 
 v. R. Co., 9 Heisk. (Tenn.) 255. In countries 
 where the civil law prevails, the carrier 
 would generally be held liable; 25 Sc. L. 
 Rep. 112; French Commercial Code, art. 283; 
 and the same is copied in Belgium, Hol- 
 land, Italy, Spain, Mexico and many Central 
 and South American countries; 34 Reichs- 
 gericht 79. 
 
 As against the consignee, the bill of lading 
 is not conclusive as to the quantity of goods 
 received, though of great weight; the ship 
 may show that she delivered all the cargo 
 she received ; James v. Oil Co., 191 Fed. 827, 
 112 C. C. A. 341. 
 
 There are statutes in many states making 
 it a criminal offence for any agent of a car- 
 rier to issue documents of title when the 
 goods have not been received. Such provi- 
 sion is in the Uniform act. An act to make 
 uniform the law of bills of lading has been 
 passed in Illinois, Iowa, Massachusetts, Mary- 
 land, New York, Ohio, Pennsylvania, Con- 
 necticut, New Jersey, Louisiana and Alaska. 
 Its chief provisions make bills of lading 
 non-negotiable or straight bills, and negotia- 
 ble or order bills. Negotiable bills must not 
 be issued in sets. Duplicate as well as non- 
 negotiable bills must be so marked. The 
 insertion of the name of the person to be 
 notified does not affect the negotiability of 
 the bill. Upon receipt of the bill, if consign- 
 or makes no objection, he and those after 
 him are bound by its terms. Negotiable bills 
 must be cancelled when goods are delivered, 
 and if not the carrier is liable to a bona 
 fide purchaser of the bill without notice of 
 the delivery. Such bills must be so marked 
 when a part is delivered. Any alteration of 
 a bill without consent is void and the bill 
 is enforceable according to its original tenor. 
 In the cases of lost or destroyed bills the 
 court may order delivery upon sufficient proof 
 and the giving of a bond. The carrier has 
 reasonable time to ascertain the validity of
 
 BILL OF LADING 
 
 359 
 
 BILL OF MIDDLESEX 
 
 claims, but an adverse title is no defence to 
 the consignee of a non-negotiable bill or to 
 the holder of a negotiable bill unless enforced 
 by legal process. The issuance of a bill, 
 where no goods have been received by an 
 agent whose actual or apparent authority in- 
 cludes the issuing of bills of lading, makes 
 the carrier liable to one who has given value 
 in good faith relying upon the description 
 therein of tbe goods. The carrier may, by 
 inserting the words "shipper's load and 
 count" or such like words, indicate that tin- 
 goods were loaded by the shipper and the 
 description made by him; and if such Is the 
 case the carrier shall not be liable for dam- 
 ages caused by improper loading, non-receipt 
 or mis-description of the goods. If goods are 
 under negotiable bills then one cannot 'at- 
 tach or levy; the remedies are to reach the 
 bills. The carrier has a lien for his charges; 
 but this must be stated on the bill. Negotia- 
 tion may be by delivery or endorsement and 
 the rights of the holder are substantially the 
 same as the holder of a negotiable note or 
 bill of exchange. The endorser is not a guar- 
 antor but is held. to give the usual warran- 
 ties. One who holds a bill as security, and, 
 receiving payment of the debt, transfers the 
 bill, shall not be deemed a guarantor. The 
 manner in which the bill is drawn may in- 
 dicate the rights of the buyer and seller. If 
 the seller sends a bill with a sight draft at- 
 tached, the buyer is bound to honor the draft 
 in order to secure any rights under the bill, 
 but if the buyer transfers it to a bona fide 
 nolder in due course, the latter is protected. 
 Negotiation defeats the vendor's lien in the 
 case of an order bill. Issuing a bill, where 
 goods have not been received, is a criminal 
 offence. It is likewise a criminal offence for 
 a person to ship goods to which he has no 
 title or upon which there exists any lien, 
 and where one takes an order bill which 
 he negotiates with intent to deceive. Induc- 
 ing a carrier to issue bill, when the person 
 knows the carrier has not received the goods, 
 is criminal. Any person who" with intent to 
 defraud issues or aids in issuing a non-ne- 
 gotiable bill, without the words "not nego- 
 tiable" placed plainly upon the face, shall be 
 guilty of a crime. England has a similar 
 act. 
 
 BILL OF MIDDLESEX. A fiction by 
 which the King's Bench acquired jurisdiction 
 in ordinary civil suits. The court could pro- 
 ceed by bill against certain officials of the 
 court, or against any persons accused of 
 contempts, deceits or trespasses. But this 
 process did not apply in actions of debt, det- 
 inue, account or covenant. A method was 
 found in the fact or fiction of the custody of 
 the marshal. It was held that a mere rec- 
 ord on the rolls of the court that the defend- 
 ant had given bail would be suliicient evi- 
 dence of actual custody. To get this evi- 
 dence on record a bill of Middlesex was 
 
 filed stating that the defendant was fuilty 
 of trespass vi et axniis — an offence falling 
 properly within the Jurisdiction of the court. 
 The plaintiff gave pledges tor the pre 
 tion which, even in Coke's day, were John 
 Doe and Richard Roe. The sheriff of Mid- 
 dlesex was then directed to produce the de- 
 fendant to answer the plaintiff of a plea of 
 trespass. If the sheriff made return to the 
 bill of "non est inventus," a writ of latitat 
 was issued to the sheriff of an adjoining 
 county. r l'li is recited the bill of Midd 
 and the proceedings thereon and stated that 
 the defendant "latitat et di■s<■lu■rit' , in the 
 county and directed the sheriff to catch him. 
 If the defendant did not live in Middlesex, 
 the latitat was the first step taken. If the 
 defendant appeared, the court obtained Ju- 
 risdiction; if not, the plain! iff could enter 
 an appearance for him and give as sureties 
 John Doe and Richard Roe. Tins was called 
 "common bail." In certain cases substan- 
 tial bail was required; this was called 
 cial hail." 
 
 The above process did not set forth the 
 true cause of action. That was added by the 
 so-called "cc etiam" clause staling the true 
 cause of action. The supposed trespass gave 
 jurisdiction ; the real cause of action in the 
 "ac etiam" clause authorized the arre.-t in 
 default of "special bail." These fictions were 
 abolished by 2 Will. IV. c. 39. See 1 Holdsw. 
 Hist. E. L.' 87. The "nee non" clause was 
 used as a like fiction to give jurisdiction in 
 certain cases to the Common Pleas. 
 
 BILL OF MORTALITY. A written state- 
 ment or account of the number of deaths 
 which have occurred in a certain district 
 within a given time. 
 
 See Vital, Statistics. 
 
 BILL OF PAINS AND PENALTIES. A 
 
 special act of the legislature which indicts a 
 punishment less than death upon persons sup- 
 posed to be guilty of high offences, such as 
 treason and felony, without any conviction in 
 the ordinary course of judicial proceedings. 
 2 Woodd. Lect. 625. It differs from a bill of 
 attainder in this, that the punishment in- 
 flicted by the latter is death. The clause in 
 the constitution prohibiting bills of attainder 
 includes bills of pains and penalties; Story, 
 Const. § 1338; Hare, Am. Coust L. 549; 
 Cummings v. Missouri, 4 Wall. (U. S. 
 IS L. Ed. 356; Ex parte Law, 35 Ga 
 300, Fed. Cas. No. 8,126. See Fletcher v. 
 Peck, 6 Cra. (U. S.) 13S, 3 D. Ed. 162. 
 
 BILL OF PARCELS. An account contain- 
 ing in detail the names of the items which 
 compose a parcel or package of goods. It is 
 usually transmitted with the goods to the 
 purchaser, in order that if any mistake has 
 been made it may be corrected. 
 
 BILL OF PARTICULARS. A detailed in- 
 formal statement of a plaintiff's cause of ac- 
 tion, or of the defendant's set-off. It is an
 
 BILL OF PARTICULARS 
 
 360 
 
 BILL OF PARTICULARS 
 
 account of the items of the claim, and shows 
 the manner in which they arose. 
 
 The plaintiff is required, sometimes under 
 statutory provisions, which vary widely in 
 the different states, to file a bill of particu- 
 lars, either in connection with his declara- 
 tion; Com. v. Giles, 1 Gray (Mass.) 466; 
 Moore v. Mauro, 4 Rand. (Va.) 488; Landon 
 v. Sage, 11 Conn. 302 ; Soria v. Bank, 3 How. 
 (Miss.) 46; Cregier v. Smyth, 1 Speers (S. 
 C.) 298; or subsequently to it, upon request 
 of the other party ; Davis v. Hunt, 2 Bail. 
 (S. C.) 416; Brown v. Calvert, 4 Dana (Ky.) 
 219; Watkins v. Brown, 5 Ark. 197; Mc- 
 Oreary v. Hood, 5 Blackf. (Ind.) 316; Wil- 
 liams v. Sinclair, 3 McLean 289, Fed. Cas. 
 No. 17,737; Dennison v. Smith, 1 Cal. 437; 
 upon an order of the court, in some cases; 
 Constable v. Hardenbergh, 76 Hun 434, 27 
 N. Y. Supp. 1022; in others, without such 
 order. 
 
 He need not give particulars of matters 
 which he does not seek to recover; 4 Exch. 
 486; nor of payments admitted; Williams 
 v. Shaw, 4 Abb. Pr. (N. Y.) 209. See 6 Dowl. 
 & L. 656. 
 
 The plaintiff is concluded by the bill when 
 filed; Hall v. Sewell, 9 Gill (Md.) 146; and 
 where he gives notice at the trial that he 
 intends to rely only upon the count for an 
 account stated, the notice operates as an 
 amendment of the pleadings and an abandon- 
 ment of the bill of particulars ; 'Waidner v. 
 Pauly, 141 111. 442, 30 N. E. 1025. 
 
 The defendant, in giving notice or plead- 
 ing set-off, must give a bill of particulars; 
 failing to do which, he will be precluded 
 from giving any evidence in support of it at 
 the trial; Starkweather v. Kittle, 17 Wend. 
 (N. Y.) 20; Harding v. Griffin, 7 Blackf. 
 (Ind.) 462; Rice's Ex'r v. Annatt's Adm'r, 8 
 Gratt. (Va.) 557. 
 
 The court may order the defendant to file 
 a bill of particulars where he alleges matter 
 by way of counterclaim ; Peabody v. Cor- 
 tada, 64 Hun 632, 18 N. Y. Supp. 622 ; where 
 the defence is payment it will not be requir- 
 ed; Moody v. Belden, 60 Hun 582, 15 N. Y. 
 Supp. 119. 
 
 The bill must be as full and specific as the 
 nature of the case admits in respect to all 
 matters as to which the adverse party ought 
 to have information; 16 M. & W. 773; but 
 need not be as special as a count on a special 
 contract. The object is to prevent surprise ; 
 Chesapeake & O. Canal Co. v. Knapp, 9 Pet. 
 (U. S.) 541, 9 L Ed. 222; Smith v. Hicks, 5 
 Wend. (N. Y.) 51 ; Watkins v. Brown, 5 Ark. 
 197. If the bill is not sufficiently explicit, 
 application should be made to the court for 
 a more specific one, as the objection cannot 
 be made on the trial; Buckeye Tp. v. Clark, 
 90 Mich. 432, 51 N. W. 528; Minneapolis 
 Envelope Co. v. Vanstrom, 51 Minn. 512, 53 
 N. W. 768. 
 
 It is not error to refuse to strike out part 
 
 of a bill of particulars ; Lewis v. Godman, 
 129 Ind. 359, 27 N. E. 563. 
 
 According to ancient practice, a defect in 
 a pleading in a divorce suit may in some 
 states, and in England, be cured by filing a 
 bill of particulars; but this will not supply 
 the want of a more definite allegation ; 12 
 P. D. 19; Realf v. Realf, 77 Pa. 31; Har- 
 rington v. Harrington, 107 Mass. 329; San- 
 ders v. Sanders, 25 Vt. 713. This is not prop- 
 er under the Code system, however ; and has 
 been abandoned in the Code states, except 
 New York ; Freeman v. Freeman, 39 Minn. 
 370, 40 N. W. 167. See Mitchell v. Mitchell, 
 61 N. Y. 398; Carpenter v. Carpenter, 17 N. 
 Y. Supp. 195. 
 
 BILL OF PEACE. In Equity Practice. 
 One which is filed when a person has a right 
 which may be controverted by various per- 
 sons, at different times, and by different ac- 
 tions. It is necessary to allege that the com- 
 plainant is in possession or that both parties 
 are out of possession ; Boston & M. Consol. 
 Copper & S. Mining Co. v. Ore Co., 188 U. S. 
 632, 23 Sup. Ct. 434, 47 L. Ed. 626. 
 
 In such a case, the court will prevent a 
 multiplicity of suits by directing an issue to 
 determine the right and ultimately grant 
 an injunction; 1 Madd. Ch. Pr. 166; 2 Story, 
 Eqi Jur. § 852; Eldridge v. Hill, 2 Johns. 
 Ch. (N. Y.) 281 ; The Thomas Gibbons, 8 Cra. 
 (U. S.) 426, 3 L. Ed. 610; L. R. 2 Ch. 8; 
 Bisph. Eq. 415. Such a bill cannot usually 
 be maintained until the right of the com- 
 plainant has been established at law; Bisph. 
 Eq. § 417 ; and it must be filed on behalf of 
 all who are interested in establishing the 
 right ; id. 
 
 Another species of bill of peace may be 
 brought when the plaintiff, after repeated 
 and satisfactory trials, has established his 
 right at law, and is still in danger of new 
 attempts to controvert it. In order to quiet 
 the possession of the plaintiff, and to sup- 
 press future litigation, equity will grant a 
 perpetual injunction; Eldridge v. Hill, 2 
 Johns. Ch. (N. Y.) 281; Alexander v. Pen- 
 dleton, 8 Cra. (U. S.) 462, 3 L. Ed. 624; 
 Mitf. Eq. 143; Primm v. Raboteau, 56 Mo. 
 407; Douglass v. McCoy, 5 Ohio 522. A bill 
 will lie to enjoin a defendant from interfer- 
 ing with plaintiff's tenants; Polk v. Rose, 
 25 Md. 153, 89 Am. Dec. 773. A bill to quiet 
 title can be filed only by a party in posses- 
 sion, against a defendant who has been in- 
 effectually seeking to establish a legal title 
 by repeated actions of ejectment; and as a 
 prerequisite to such bill it is necessary that 
 the plaintiff's title should have been estab- 
 lished by at least one successful trial at law ; 
 Wehrman v. Conklin, 155 U. S. 314, 15 Sup. 
 Ct. 129, 39 L. Ed. 167. See Bill Quia Tim- 
 et; Bill to Quiet Possession. 
 
 A community of interest in the law and 
 fact involved is enough on which to found a 
 bill of peace; Crawford v. R. Co., S3 Miss.
 
 BILL OP PEACE 
 
 361 
 
 BILL OF REVIEW 
 
 708, 36 South. 82, 102 Am. St. Rep. 470; 
 contra Ducktown Sulphur, Copper & Iron Co. 
 v. Fain, 109 Tenn. 56, 70 S. W. 813. 
 
 For violation of a city ordinance requiring 
 street railroads under penalty, to furnish 
 sufficient cars to prevent overcrowding, etc., 
 the appellant had begun in the justice's court 
 sixty suits against one appellee, and a hun- 
 dred against the other, and was threatening 
 more. The two appellees, for themselves 
 and others similarly situated, filed a bill of 
 peace to have the suits enjoined on the 
 ground that the ordinance was unconstitu- 
 tional. It was held a bill of peace would not 
 lie ; Chicago v. Ry. Co., 222 111. 500, 78 N. E. 
 890. 
 
 BILL OF PRIVILEGE. In English Law. 
 The form of proceeding against an attorney 
 of the court, who is not liable to arrest. 
 Brooke, Abr. Bille; 12 Mod. 163. 
 
 It is considered a privilege for the benefit 
 of clients; 4 Burr. 2113; Dougl. 381; and 
 is said to be confined to such as practise; 2 
 Maule & S. 605. But see 1 Bos. & P. 4; 2 
 Lutw. 1667. See 3 Sharsw. Bla. Com. 289. 
 
 BILL OF PROOF. The claim made by a 
 third person to the subject-matter in dis- 
 pute between the parties to a suit in the 
 court of the mayor of London. 2 Chitty, Pr. 
 492; 1 Marsh. 233. 
 
 BILL OF REVIEW. One which is brought 
 to have a decree of the court reviewed, al- 
 tered, or reversed. 
 
 It is only brought after enrollment; 1 Ch. Cas. 54; 
 3 P. Will. 371; Simpson v. Downs, 5 Rich. Eq. (S. 
 C.) 421; 1 Story, Eq. PI. § 403; and is thus distin- 
 guished from a bill in the nature of a bill in re- 
 view, or a supplemental bill in the nature of a bill 
 in review ; Dexter v. Arnold, 5 Mas. 303, Fed. Cas. 
 No. 3856; Greenwich Bank v. Loomis, 2 Sandf. Ch. 
 (N. Y.) 70; Gilbert, For. Rom. c. 10, p. 182. 
 
 It must be brought either for error in point 
 of law; Wiser v. Blachly, 2 Johns. Ch. (N. 
 •Y.) 488; Cooper, Eq. PL 89; or for some 
 new matter of fact, relevant to the case, dis- 
 covered since publication passed in the cause, 
 and which could not, with reasonable dili- 
 gence, have been discovered before ; Irwin v. 
 Meyrose, 7 Fed. 533; Putnam v. Day, 22 
 Wall. (U. S.) 60, 22 L. Ed. 764 ; Buffiugton v. 
 Harvey, 95 U. S. 99, 24 L. Ed. 381 ; Wiser v. 
 Blachly, 2 Johns. Ch. (N. Y.) 488 ; see U. S. 
 v. Samperyac, 1 Hempt. 118, Fed. Cas. No. 
 16,216 o; Stevens v. Dewey, 27 Vt. 638; Foy 
 v. Foy, 25 Miss. 207; Cocke v. Copenhaver, 
 126 Fed. 145, 61 C. C. A. 211 ; Hill v. Phelps, 
 101 Fed. 650, 41 C. C. A. 569 ; or to correct 
 an error apparent on the face of a decree in 
 the original suit; Osborne v. Land & Town 
 Co., 178 U. S. 22, 20 Sup. Ct. 860, 44 L. Ed. 
 961 ; where there are no disputed questions 
 of fact; Smyth v. Fitzsimmons, 97 Ala. 451, 
 12 South. 48. 
 
 If based on newly discovered evidence it 
 requires leave of court ; Buckingham v. 
 Corning, 29 N. J. Eq. 238: Barton v. Bar- 
 bour, 104 U. S. 126, 26. L. Ed. 672 ; Reynolds 
 
 v. R. Co., 42 Fla. 387, 28 South. SOI ; Florida 
 Cent. & P. R. Co. v. Reynolds, 1S3 D. S. 471, 
 22 Sup. Ct. 176, 46 L. Ed. 283; the evi 
 must be new or else such as the party could 
 not by diligence have known, and failure to 
 produce it sooner must be explained ; it 
 most lie controlling, not cumulative; Acord 
 v. Corporation, 156 Fed. 989: Kern v. Wyatt 
 & Co., 89 Va. SS5, 17 S. E. 549. Granting it 
 is discretionary with the court, and Is 
 ject to review; Reynolds v. R. Co.. 42 Fla. 
 3S7, 28 South. 861 ; Florida Cent & P. B 
 v. Reynolds, 183 U. S. 471, 22 Sup. Ct 176, 
 46 L. Ed. 283; it will be refused for laches; 
 Taylor v. Easton, 180 Fed. 303, 103 C. C. A. 
 509; or if granting it would work hardship 
 to innocent parties ; Acord v. Corporation, 
 156 Fed. 989; Rickei v. Powell, 100 I'. S. 
 104, 25 L. Ed. 527 ; if it is based upon fraud 
 it is a matter of right ; Cox v. Bank (Tenn.) 
 63 S. W. 237; so if filed for error of law 
 appearing on the face of the record ; Wood 
 v. Wood, 59 Ark. 441, 27 S. W. 641, 28 L. R. 
 A. 157, 43 Am. St. Rep. 42; Denson v. Den- 
 son, 33 Miss. 500; a bill may join both error 
 in law and newly discovered evidence; Acord 
 v. Corporation, 156 Fed. 989. It is held that 
 if for error of law, it must be filed within 
 the time of appeal ; Jorgenson v. Young, 136 
 Fed. 37S, 69 C. C. A. 222 ; Taylor v. Easton, 
 ISO Fed. 363, 103 C. C. A. 509 ; and for newly 
 discovered evidence, within a reasonable 
 time; Camp Mfg. Co. v. Parker. 121 Fed. 
 195 ; within two months after decree was 
 held in time ; Bruschke v. Verein, 145 
 111. 433, 34 N. E. 417. The practice is to 
 petition for leave if leave be necessary ; Mas- 
 sie v. Graham, Fed. Cas. No. 9,263. Granting 
 leave does not prejudge the case at final 
 hearing; Hopkins v. Hebard, 194 Fed. 301, 
 114 C. C. A. 201. 
 
 A rehearing upon the ground that the 
 court had overlooked a controlling fact (not 
 brought to its attention by counsel) was re- 
 fused in Moneyweight Scale Co. v. Scale Co., 
 199 Fed. 905, 118 C. C. A. 235. 
 
 Application after judgment in the appel- 
 late court must be made in that court ; Kings- 
 bury v. Buckner, 134 U. S. 650, 10 Sup. Ct 
 638, 33 L. Ed. 1047; Camp Mfg. Co. v. Park- 
 er, 121 Fed. 105 ; Keith v. Alger, 124 Fed. 32, 
 59 C. C. A. 552. 
 
 Where one proceeds to a decree after dis- 
 covering facts on which a new claim is 
 founded, he cannot afterwards file a supple- 
 mental bill in the nature of a bill of review 
 on such new facts ; Hood v. Green, 42 111. 
 App. 664. 
 
 BILL OF REVIVOR. One which is 
 brought to continue a suit which has abated 
 before its final consummation, as, for ex- 
 ample, by death, or marriage of a female 
 plaintiff. It is not the commencement of a 
 new suit, but a continuation of the old one ; 
 Clarke v. Mathewsou, 12 Pet. (U. S.) 164. 9 
 L. Ed. 104L
 
 BILL OF REVIVOR 
 
 362 
 
 BILL OF RIGHTS 
 
 Under the new Supreme Court equity rule 
 35 (33 Sup. Ct. xxviii) it is not necessary to 
 set forth any of the statements in the orig- 
 inal suit unless the special circumstances of 
 the case may require it. 
 
 It must be brought by the proper repre- 
 sentatives of the person deceased, with ref- 
 erence to the property which is the subject- 
 matter ; 4 Sim. 318; Douglass v. Sherman* 2 
 Paige, Ch. (N. Y.) 35S ; Story, Eq. PL § 354. 
 
 BILL OF REVIVOR AND SUPPLEMENT. 
 One which is a compound of a supplemental 
 bill and bill of revivor, and not only con- 
 tinues the suit, which has abated by the 
 death of the plaintiff, or the like, but sup- 
 plies any defects in the original bill arising 
 from subsequent events, so as to entitle the 
 party to relief on the whole merits of his 
 case. Westcott v. Cady, 5 Johns. Ch. (N. Y.) 
 334, 9 Am. Dec. 306; Mitf. Eq. PL 32, 74; 
 13 Yes. 161; Eastman v. Batchelder, 36 N. 
 H. 141, 72 Am. Dec. 295; Pendleton v. Fay, 
 3 Paige, Ch. (N. Y.) 204. 
 
 BILL OF RIGHTS. A formal and public 
 declaration of popular rights and liberties. 
 
 The document pre-eminently kuown by 
 that name was the English statute, 1 W. and 
 M., Sess. 2, C. 2 (1689). 
 
 What was known as the Declaration of 
 Right was delivered to the Prince and Prin- 
 cess of Orange (afterwards William III. 
 and Mary) by the English lords and com- 
 mons, and in December, 1689 (at the second 
 session of the Convention Parliament, which 
 had reassembled October 25, 1689), it was, 
 with some amendments, few but important, 
 enacted into a statute known as the Bill of 
 Rights. The Declaration was presented to 
 the new monarchs as embodying the condi- 
 tions of their election, and only after their 
 acceptance of its terms was proclamation of 
 their accession made, on February 13, 16S9; 
 2 Gneist, Hist. Eng. Const. 316, note. 
 
 The Bill of Rights contained 13 clauses or 
 guaranties, suggested by the illegal and ar- 
 bitrary acts previously committed by the 
 Crown. These were a declaration of the il- 
 legality of (1) the pretended power of the 
 suspension of laws or their execution, by 
 regal authority, without consent of Parlia- 
 ment; <2) the recent assumption and exercise 
 of the same power; (3) the commission for 
 erecting the late Court of Commissioners for 
 ecclesiastical causes and other similar com- 
 missions and courts ; (4) levying money for 
 the use of the Crown by pretense of preroga- 
 tive without grant of Parliament; (6) rais- 
 ing or keeping a standing army in time of 
 peace, without consent of Parliament. There 
 were also declarations in favor of (5) the 
 right of petition ; (7) the right of Protestants 
 to bear arms ; (8) free elections of members 
 of Parliament ; (9) freedom of speech and 
 debates in Parliament, which should not be 
 questioned elsewhere ; (10) that excessive 
 bail should not be required, nor excessive 
 
 fines imposed, nor cruel and unusual punish- 
 ment inflicted ; (11) the due impanelling and 
 return of jurors, and that those in treason 
 trials should be freeholders; (12) that grants 
 and promises of fines and forfeitures before 
 conviction are illegal and void; (13) that 
 Parliament ought to be held frequently. 
 
 The absence of what was popularly known 
 as a Bill of Rights in the Federal Constitu- 
 tion, as originally adopted, was the cause of 
 some opposition to the work of the Conven- 
 tion which framed it, and an effort was 
 made to secure its insertion by Congress. 
 This failed and it was believed by Madison, 
 and those who joined him in opposing the 
 movement to amend, that its success would, 
 by creating confusion as to what instrument 
 was to be ratified, have endangered the final 
 adoption of the Constitution. 2 Curtis, Hist. 
 Const. U. S. 498. 
 
 Subsequently and very soon after the orig- 
 inal instrument went into effect the first ten 
 amendments, adopted together, embodied, as 
 limitations upon the powers of the Federal 
 government, substantially all the guaranties, 
 considered applicable to our conditions, of 
 the English Bill of Rights. Since all of those 
 provisions are also embodied in most, if not 
 all, of the American Constitutions, their as- 
 sertion of fundamental, political and per- 
 sonal liberty are referred to collectively as a 
 "bill of rights." Indeed some of the State 
 Constitutions preserve the name as well as 
 the substance. 
 
 The text of the English Bill of Rights will 
 be found in 2 Hist, for Ready Ref. 937. 
 
 See Constitution of the United States. 
 
 BILL OF SALE. A writing evidencing 
 the transfer of personal property from one 
 person to another. Putnam v. McDonald, 72 
 Vt. 4, 5, 47 Atl. 159. 
 
 It is in frequent use in the transfer of personal 
 property, especially that of which immediate pos- 
 session is not or cannot be given. 
 
 In Kngland a bill of sale of a ship at sea or out of 
 the country is called a grand bill of sale; but no 
 distinction is recognized in this country between 
 grand and ordinary bills of sale ; Portland Bank 
 v. Stacey, 4 Mass. 661, 3 Am. Dec. 253. The effect 
 of a bill of sale is to transfer the property in the 
 thing sold. 
 
 By the maritime law, the transfer of a 
 ship must generally be evidenced by a bill 
 of sale; Weston v. Penniman, 1 Mas. 306, 
 Fed. Cas. No. 17,455; and by act of con- 
 gress, every sale or transfer of a registered 
 ship to a citizen of the United States must 
 be accompanied by a bill of sale, setting 
 forth, at length, -the certificate of registry; 
 R. S. U. S. § 4170. Where the bill is insufficient 
 under the statute, the executor of the seller 
 can be compelled to reform it ; Sprague v. 
 Thurber, 17 R. I. 454, 22 Atl. 1057. And 
 this bill of sale is not valid except between 
 the parties or those having actual notice, 
 unless recorded ; R. S. § 4192. A contract to 
 sell, accompanied by delivery of possession, 
 is, however, sufficient; Taggard v. Loring,
 
 BILL OF SALE 
 
 3G3 
 
 BILL QUIA TIMET 
 
 16 Mass. 336, 8 Am. Dec. 140 ; Bixby v. Ins. 
 Co., 8 Pick. (Mass.) 86; Wendover v. Hoge- 
 boom, 7 Johns. (N. Y.) 308. 
 See Sale. 
 
 BILL OF SIGHT. A written description 
 of goods, supposed to be inaccurate, but 
 made as nearly exact as possible, furnished 
 by an importer or his agent to the proper of- 
 ficer of the customs, to procure a landing and 
 inspection of the goods. It was allowed by 
 an English statute where the merchant La ig- 
 norant of the real quantity and quality of 
 goods consigned to him, so as to be unable 
 to make a proper entry of them. 
 
 BILL OF SUFFERANCE. A license grant- 
 ed to a merchant, permitting him to trade 
 from one English port to another without 
 paying customs. 
 
 BILL PAYABLE. A bill of exchange ac- 
 cepted, or a promissory note made, by a mer- 
 chant, whereby he has engaged to pay money. 
 It is so called as being payable by him. An 
 account is usually kept of such bills in a 
 book with that title, and also in the ledger. 
 See Parsons, Notes and Bills. 
 
 BILL PENAL. A written obligation by 
 which a debtor acknowledges himself in- 
 debted In a certain sum, and binds himself 
 for the payment thereof, in a larger sum. 
 - Bonds with conditions have superseded 
 such bills in modern practice ; Steph. PL 265, 
 n. They are sometimes called bills obligato- 
 ry, and are properly so called; but every 
 bill obligatory is not a bill penal ; Comyns, 
 Dig. Obligations, D. ; Cro. Car. 515. See 2 
 Ventr. 106, 198. 
 
 BILL QUIA TIMET. A bill to guard 
 against possible future injuries and to con- 
 serve present rights from possible destruc- 
 tion or serious impairment. The limits of 
 the application of the remedy are not clearly 
 defined, but it rests on the principle of re- 
 lieving the party and his title from some 
 claim or liability which may, if enforced, en- 
 tail serious loss. Such a bill may be filed 
 when a person is entitled to property of a 
 personal nature after another's death, and 
 has reason to apprehend it may be destroyed 
 by the present possessor ; or when he is ap- 
 prehensive of being subjected to a future in- 
 convenience, probable, or even possible, to 
 happen or be occasioned by the neglect, in- 
 advertence, or culpability of another; or 
 when he seeks to be relieved against an in- 
 valid title, claim, or incumbrance which has 
 been created by the act of another. See 3 
 Daniell, Ch. Pr. 1961, n. Another illustra- 
 tion of the application of the remedy is in 
 case of a eounterbond ; although the surety 
 is not troubled for the money, after it be- 
 comes payable, a decree for its payment may 
 be had against the principal, or when a 
 trustee has incurred liability as the holder 
 of shares for another under a covenant of 
 indemnity, against liability ; L. R. 7 Ch. 393. 
 
 Upon a proper case being made out, the 
 court will, in one case, secure the property 
 for the use of the party (which is the ob- 
 ject of the bill), by compelling the person in 
 ion of it to give a proper security 
 against any subsequent disposition or wilful 
 destruction ; and, in the other i 
 will quiet the party's apprehension of future 
 inconvenience, by removing the causes which 
 may lead to it; 1 Madd. Ch. Pr. 218; 2 
 Story, Eq. Jur. §§ 825, 851. See Bill to Quiet 
 Possession and Title; Bill of Peace. 
 
 BILL RECEIVABLE. A promissory note, 
 bill of exchange, or other written instrument 
 for the payment of money at a future day, 
 which a merchant holds. So called because 
 the amounts for which they are given are 
 receivable by the merchant. They are en- 
 tered in a look so called, and are cha 
 to an account in the ledger under the same 
 title, to which account the cash, when re- 
 ceived, is credited.- See Pars. N. & B. 
 
 BILL, SINGLE. A written unconditional 
 promise by one or more persons to pay to 
 another person or other persons therein nam- 
 ed a sum of money at a time therein speci- 
 fied. It is usually under seal, and may then 
 be called a bill obligatory; Farmers' & Me- 
 chanics' Bank v. Greiner, 2 S. & R. (Pa.) 115. 
 It has no condition attached, and is not giv- 
 en in a penal sum ; Comyns, Dig. Obligation, 
 C. See Jarvis v. McMain, 10 N. C. 10; Fields 
 v. Mallett, 10 N. C. 465. 
 
 BILL, SUPPLEMENTAL. See Supple- 
 mental Bill. 
 
 BILL TO CARRY A DECREE INTO EX- 
 ECUTION. One which is filed when, from 
 the neglect of parties or some other cause, 
 it may become impossible to carry a decree 
 into execution without the further decree of 
 the court Hinde, Ch. Pr. 68 ; Story, Eq. PL 
 § 429. 
 
 BILL TO MARSHAL ASSETS. See As- 
 sets. 
 
 BILL TO MARSHAL SECURITIES. See 
 Marshalling Securities. 
 
 BILL TO PERPETUATE TESTIMONY. 
 One which is brought to secure the testimony 
 of witnesses with reference to some matter 
 which is not in litigation, but is liable to 
 become so. 
 
 It differs from a bill to take testimony de 
 bene esse (q. v.) inasmuch as the latter is 
 sustainable only when there is a suit already 
 pending. 
 
 A bill to perpetuate testimony "lies when 
 the party is in actual, undisturbed posses- 
 sion; or where lands are devised by will 
 from the heir at law; or when no action 
 has been brought but the party intends to 
 commence a suit" Hickman v. Hickman, 1 
 Del. Ch. 133. It proceeds on the ground that, 
 the party not being in a situation to bring 
 his title to a trial, his evidence may be lost,
 
 BILL TO PERPETUATE TESTIMONY 364 
 
 BILL TO QUIET POSSESSION 
 
 through lapse of time, a risk affecting all ev- 
 idence, irrespective of the condition of a 
 witness; Hall v. Stout, 4 Del. Ch. 269. 
 
 It must show the subject-matter touching 
 which the plaintiff is desirous of giving evi- 
 dence ; Rep. temp. Finch 391 ; 4 Mudd. 8 ; 
 that the plaintiff has a positive interest in 
 the subject-matter which may be endangered 
 if the testimony in support of it be lost, as 
 a mere expectancy, however strong, is not 
 sufficient; Mitf. Eq. PL 51; May v. Arm- 
 strong, 3 J. J. Marsh. (Ky.) 260, 20 Am. Dec. 
 137. That the defendant has, or pretends to 
 have, or that he claims, an interest to con- 
 test the title of the plaintiff in the subject- 
 matter of the proposed testimony ; Cooper, 
 PL 56; Story, Eq. PL § 302; and some 
 ground of necessity for perpetuating the ev- 
 idence; Story, Eq. PL § 303; Mitf. Eq. PL 
 52, 148, n. 
 
 The bill should describe the right in which 
 it is brought with reasonable certainty, so 
 as to point the proper interrogations on both 
 sides to the true merits of the controversy ; 
 1 Vern. 312; Cooper, Eq. PL 56; and should 
 pray leave to examine the witnesses touch- 
 ing the matter stated, to the end that their 
 testimony may be preserved and perpetuated ; 
 Mitf. Eq. PL 52. The bill is filed and serv- 
 ice made in the usual way ; Green v. Com- 
 pagnia Generale Italiana Di Navigation, 82 
 Fed. 490. 
 
 A bill is demurrable if it contains a prayer 
 for relief; Hickman v. Hickman, 1 Del. Ch. 
 133 ; 2 Ves. 497. 
 
 It must appear that the relief is absolutely 
 necessary to prevent a failure of justice; 
 Crawford v. McAdams, 63 N. C. 67; if no 
 reason exists for bringing the action in aid 
 of which such a bill is filed, the bill will be 
 dismissed ; In re Ketchum, 60 How. Pr. (N. 
 Y.) 154. Where a party sought to perpetuate 
 testimony of his legitimacy, the bill was dis- 
 missed because the legitimacy act gave him a 
 remedy ; [1903] 2 Ch. 378. So as to a threat- 
 ened slander suit where the answer releas- 
 ed all claims against the plaintiff for slan- 
 der; Hanford v. Ewen, 79 111. App. 327. 
 The testimony of an injured man not ex- 
 pected to live may be taken for the benefit 
 of his family; Ohio Copper Min. Co. v. 
 Hutchings, 172 Fed. 201, 96 C. C. A. 653 
 (under a Utah statute). 
 
 Where one is threatened by patent suits 
 which are not brought, he may file a bill un- 
 der R. S. § 866, to perpetuate testimony that 
 the patent is invalid ; Westinghouse Mach. 
 Co. v. Battery Co., 170 Fed. 430, 95 C. C. A. 
 600, 25 L. R. A. (N. S.) 673, with note; and 
 it is held that he need not show that it is 
 necessary to take the depositions to prevent 
 a failure of justice ; id. 
 
 BILL TO QUIET POSSESSION AND TI- 
 TLE. Also called a bill to remove a cloud 
 to title, and though sometimes classed with 
 
 bills quia timet or for the cancellation of void 
 instruments, they may be resorted to in oth- 
 er cases when the complainant's title is clear 
 and there is a cloud to be removed ; Mellen 
 v. Iron Works, 131 U. S. 352, 9 Sup. Ct 781," 
 33 L. Ed. 178; Town of Corinth v. Locke, 
 62 Vt. 411, 20 Atl. 809; Alsop v. Eckles, 81 
 111. 424 ; the latter may be said to exist 
 whenever in ejectment by the holder of the 
 adverse title any evidence would be required 
 to defeat a recovery ; Sloan v. Sloan, 25 Fla. 
 53, 5 South. 603. 
 
 Whenever an instrument exists which may 
 be vexatiously or injuriously used against a 
 party, after the evidence to impeach or in- 
 validate it is lost, or which may throw a 
 cloud or suspicion over his title or interest, 
 and he cannot immediately protect his right 
 by any proceedings at law, equity will af- 
 ford relief by directing the instrument to 
 be delivered up and cancelled, or by making 
 any other decree which justice and the rights 
 of the parties may require; Martin v. 
 Graves, 5 Allen (Mass.) 602; Dull's Appeal, 
 113 Pa. 510, 6 Atl. 540 ; 2 Story, Eq. § 694. 
 
 Equity will entertain a bill to adjust the 
 claims or to settle the priorities of conflict- 
 ing claimants, where there is thereby created 
 a cloud over the title, which would prevent 
 the sale of the land at a fair market price; 
 Bisph. Eq. 236; to restrain the collection of 
 an illegal tax; ibid.; to set aside deeds, etc., 
 which may operate as a cloud upon the legal 
 title of the owner ; whether they be void or 
 voidable, and whether the character of the 
 instrument appears on its face or not ; Kerr 
 v. Freeman, 33 Miss. 292 ; Peirsoll v. Elliott, 
 6 Pet. (U. S.) 95, 8 L. Ed. 332; but it has 
 been held that equity will not interfere to 
 remove an alleged cloud upon title to land, 
 if the instrument or proceeding constituting 
 such alleged cloud is absolutely void upon 
 its face, so that no extrinsic evidence is nec- 
 essary to show its invalidity; nor if the in- 
 strument or proceeding is not thus void on 
 its face, but the party claiming, in order to 
 enforce it, must necessarily offer evidence 
 which will inevitably show its invalidity ; 
 Rich v. Braxton, 158 U. S. 375, 15 Sup. Ct 
 1006, 39 L. Ed. 1022. 
 
 In a suit brought in the district court of 
 the United States, to remove any incum- 
 brance or lien or cloud upon the title to real 
 or personal property within the district 
 where such suit is brought, an order may be 
 made upon a defendant not residing in the 
 district or found therein, and not appearing 
 gratis, to appear and answer, plead or demur 
 by a certain day; 18 Stat. L. 472, c. 137, 
 Sec. 8 ; Mellen v. Iron Works, 131 U. S. 352, 
 9 Sup. Ct. 781, 33 L. Ed. 178 ; but such suit 
 will affect only the property concerned ; id. 
 See Bill of Peace; Bill Quia Timet. 
 
 BILL TO SUSPEND A DECREE. One 
 
 brought to avoid or suspend a decree under
 
 BILL TO SUSPEND A DECREE 
 
 3G5 
 
 BINDING OUT 
 
 special circumstances. See 1 Ch. Cas. 3, 61 ; 
 2 id, 8; Mitf. Eq. PI. 85, 86. 
 
 BILL TO TAKE TESTIMONY DE BENE 
 ESSE. One which is brought to take the 
 testimony of witnesses to a fact material to 
 the prosecution of a suit at law which is ac- 
 tually commenced, where there is good cause 
 to fear that the testimony may otherwise be 
 lost before the time of trial ; Hall v. Stout, 
 4 Del. Ch. 269, where the distinction between 
 this bill and one to perpetuate testimony is 
 clearly stated. The right to a bill to take 
 testimony de bene esse depends on the condi- 
 tion of the witness, while the other depends 
 on the situation of the party with respect to 
 his power to bring his rights to immediate 
 investigation ; id. See 1 S. & S. 83 ; 2 Story, 
 Eq. Jur. § 1813, n. ; 13 Ves. 56. 
 
 It lies, in general, where witnesses are 
 aged or infirm; Cooper, Eq. PI. 57; Ambl. 
 65; 13 Ves. Ch. 56, 261; propose to leave 
 the country; 2 Dick. 454; Story, Eq. PL § 
 308; or there is but a single witness to a 
 fact ; 1 P. Wins. 97 ; 2 Dick. 648. 
 
 The one at whose instance the deposition 
 is taken has no control over it, and if he 
 directs the commissioner to withhold it be- 
 cause he is surprised by the testimony, the 
 court will order its return; First Nat. Bank 
 of Grand Haven v. Forest, 44 Fed. 246. 
 
 BILLA CASSETUR (Lat. that the bill be 
 quashed or made void). A plea in abate- 
 ment concluded, when the pleadings were in 
 Latin, quod billa cassetur (that the bill be 
 quashed). 3 Bla. Com. 303. 
 
 BILLA EXCAMBM. A bill of exchange. 
 
 BILLA EXONERATIONS. A bill of lad- 
 ing. 
 
 BILLA VERA (Lat). A true bill. The 
 form of words indorsed on a bill of indict- 
 ment, when proceedings were conducted in 
 Latin, to indicate the opinion of the grand 
 jury that the person therein accused ought 
 to be tried. See True Bill. 
 
 BILLET DE CHANGE. A contract to 
 furnish a bill of exchange. A contract to 
 pay the value of a bill of exchange already 
 furnished. Guyot, Rupert. Univ. 
 
 Where a person intends to furnish a bill of ex- 
 change (lettre de change), and is not quite prepared 
 to do so, he gives a billet de change, which is a con- 
 tract to furnish a lettre de change at a future time. 
 Guyot, Rcpert. Univ.; Story, Bills § 2. 
 
 BINDER. Used to designate a temporary 
 insurance against fire. In effect, an agree- 
 ment to insure, but taking effect immediate- 
 ly. It is usually unwritten. See Agreement 
 for Insurance. 
 
 BINDING OUT. A term applied to the 
 contract of apprenticeship, which see. 
 
 The contract must be by deed, to which 
 the infant, as well as the parent or guardian, 
 must be a party, or the infant will not be 
 bound; 3 B. & Aid. 584; In re McDowle, 8 
 Johns. (N. Y.) 328; Stringfield v. Heiskell, 
 
 2 Yerg. (Tenn.) 546; Pierce v. Massenburg, 
 
 4 Lei^h (Va.) 493, 26 Am. Dec. 333; Trimble 
 v. State, 4 Black! (Ind.i 437; Balch v. 
 Smith, 12 X. II. 438. 
 
 BINDING OVER. The act by which a 
 magistrate or court hold to bail a party ac- 
 cused of a crime or misdemeanor. 
 
 The binding over may be to appear at a 
 court having jurisdiction of the offence 
 charged, to answer, or to be of good be- 
 havior, or to keep the peace. 
 
 BIPARTITE. Of two parts. This term is 
 used in conveyancing ; as, this indenture bi- 
 partite, between A, of the one part, and B, 
 of the other part. 
 
 BIRRETUM, BIRRETUS. A cap or coif 
 used formerly in England by judges and ser- 
 geants at law. Spelman, Gloss. 
 
 BIRTH. The act of being wholly brought 
 into the world. 
 
 The conditions of live birth are not satis- 
 fied when a part only of the body is born. 
 The whole body must be brought into the 
 world and detached from that of the moth- 
 er, and after this event the child must be 
 alive ; 5 C. & P. 329 ; 7 id. 814. The circulat- 
 ing system must also be changed, and the 
 child must have an independent circulation ; 
 
 5 C. & P. 539 ; 9 id. 154 ; Tayl. Med. Jur. 591. 
 But it is not necessary that there should 
 
 have been a separation of the ombilical 
 cord. That may still connect the child with 
 its mother, and yet the killing of it will con- 
 stitute murder; 7 C. & P. 814. See 1 Beck, 
 Med. Jur. 47S ; 1 Chit. Med. Jur. 438 ; Gesta- 
 tion ; Life ; Vital Statistics. 
 
 BISAILE. See Besaile. 
 
 BISHOP. In England, an ecclesiastical 
 officer, who is the chief of the clergy of his 
 diocese, and is the next in rank to an arch- 
 bishop. A bishop is a corporation sole; 1 
 Bla. Com. 469. In the United States it is 
 the title of a high ecclesiastical officer of 
 the Roman Catholic, Episcopal and Metho- 
 dist Episcopal and some other churches. In 
 the first two he is the head of a diocese. 
 He is addressed in the Church of England 
 and the Protestant Episcopal Church as 
 Right Reverend. 
 
 In England the two archbishops and twen- 
 ty-four bishops are entitled to sit in the 
 House of Lords, and are known as spiritual 
 peers. When there is a vacancy, the senior 
 existing bishop is entitled to till it and not 
 the successor of the one who died. The 
 bishop's powers are threefold : 1. Potcstas 
 ordinis, under which he confers orders, con- 
 firms, consecrates churches, etc. ; 2. Potcstas 
 jurisilictionis, which he exercises as ecclesi- 
 astical judge of the diocese; 3. Admin ist ra- 
 tio f am ilia ris. by which he governs the rev- 
 enue; 1 Bla. Com. 377, 155. As to his ap- 
 pointment, see Conge D'Elibe; Church of 
 England.
 
 BISHOP 
 
 366 BLACK BOOK OF THE ADMIRALTY 
 
 In the Roman Church he is the governing 
 authority in his diocese and is said to be 
 "the supreme pastor, the supreme teacher, 
 the supreme governor." It is his duty, un- 
 der the laws and discipline of his church, to 
 administer the regulations provided by its 
 laws, and to construe and interpret such 
 regulations. The court will not review the 
 judgments or acts of a religious organiza- 
 tion with reference to its internal affairs 
 for the purpose of ascertaining their regu- 
 larity or accordance with the discipline and 
 usage of such organization; Pounder v. Ashe, 
 44 Neb. 673, 63 N. W. 48 ; Bonacum v. Har- 
 rington, 65 Neb. 831, 91 N. W. 886. See 
 Religious Society. 
 
 BISHOP'S COURT. In English Law. An 
 ecclesiastical court held in the cathedral of 
 each diocese, the judge of which is the bish- 
 op's chancellor. 
 
 BISHOPRIC. In Ecclesiastical Law. The 
 extent of country over which a bishop has 
 jurisdiction; a see; a diocese. 
 
 BISSEXTILE. The day which is added 
 every fourth year to the month of February, 
 in order to mate the year agree with the 
 course of the sun. 
 
 By statute 21 Hen. III., the 28th and 29th 
 of February count together as one day. This 
 statute is in force in some of the United 
 States. Porter v. Holloway, 43 Ind. 35; 
 Harker v. Addis, 4 Pa. 515. 
 
 A writ in 1256 to the justices of the bench, 
 relating to the manner in which Leap Year 
 should be counted, had the force of a stat- 
 ute. Holdsw. Hist. E. L. 174. 
 
 It is called bissextile, because in the Roman cal- 
 endar it was fixed on the sixth day before the cal- 
 ends of March (which answers to the twenty-fourth 
 day of February), and this day was counted twice; 
 the first was called bissextus prior, and the other 
 bissextus posterior; but the latter was properly 
 called bissextile or intercalary day. See Calendar. 
 
 BITCH. A female dog, wolf or fox. See 
 1 C. & K. 459. An approbious name for a 
 woman. State v. Harwell, 129 N. C. 550, 40 
 S. E. 48. Although it has been held that 
 when applied to a woman, it does not, in its 
 common acceptation, import whoredom in 
 any of its forms, and therefore is not slan- 
 derous; Schurick v. Kollman, 50 Ind. 336. 
 
 BLACK ACRE. A term used by the old 
 writers to distinguish one parcel of land 
 from another, to avoid ambiguity, as well 
 as the inconvenience of a fuller description. 
 "White acre" is also so used. A and B are 
 used in the same way to distinguish persons. 
 
 BLACK ACT. In Ejiglish Law. The act 
 of parliament, 9 Geo. II. c. 22. This act 
 was passed for the punishment of certain 
 marauders who committed great outrages 
 disguised and with faces blackened. It was 
 repealed by 7 & 8 Geo. IV. c. 11. See 4 
 Sharsw. Bla. Com. 245. It is held not to be 
 a part of the common law in Georgia ; State 
 v. Campbell, T. U. P. Charlt (Ga.) 167. 
 
 BLACK BOOK OF THE ADMIRALTY. 
 
 An ancient book compiled in the reign of 
 Edward III. It has always been deemed of 
 the highest authority in matters concerning 
 the admiralty. It contains the laws of Oler- 
 on, at large; a view of the crimes and of- 
 fences cognizable in the admiralty; ordi- 
 nances and commentaries on matters of 
 prize and maritime torts, injuries, and con- 
 tracts; De Lovio v. Boit, 2 Gall. 404, Fed. 
 Cas. No. 3,776. It is said by Selden to be 
 not more ancient than the reign of Henry 
 VI. Selden, de Laud. Leg. Ang. c. 32. By 
 other writers it is said to have been compos- 
 ed earlier. It was republished (1871) by 
 the British government, with an introduction 
 by Sir Travers Twiss. 
 
 BLACK BOOK OF THE EXCHEQUER. 
 
 The name of a book kept in the English ex- 
 chequer, containing a collection of treaties, 
 conventions, charters, etc. 
 
 BLACK CAP. A portion of the full dress 
 of a judge. It is not known when the cus- 
 tom of putting on the black cap when pass- 
 ing sentence of death was introduced into 
 England. Townsend, Man. of Dates. 
 
 BLACK MAIL. Rents reserved, payable 
 in work, grain, and the like. 
 
 Such rents were called black mail (reditus nigri) 
 in distinction from white rents (blanche firm.es), 
 which were rents paid in silver. 
 
 A yearly payment made for security and 
 protection to those bands of marauders who 
 infested the borders of England and Scot- 
 land about the middle of the sixteenth cen- 
 tury and laid the inhabitants under contribu- 
 tion. Hume, Hist. Eng. vol. i. 473; vol. ii. 
 App. No. 8; Cowell. 
 
 In common parlance, the term is equiva- 
 lent to, and synonymous with, extortion — the 
 exaction of money, either for the perform- 
 ance of a duty, the prevention of an injury, 
 or the exercise of an influence. It supposes 
 the service to be unlawful, and the payment 
 involuntary. Not unfrequently it is extorted 
 by threats, or by operating upon the fears or 
 the credulity, or by promises to conceal, or 
 offers to expose the weaknesses, the follies, 
 or the crimes of the victim. Edsall v. 
 Brooks, 17 Abb. Pr. (N. Y.) 226. 
 
 Threats by defendant to accuse another of 
 a crime, with intent, himself, to commit the 
 crime of extortion, accompanied by success 
 in obtaining money from that other. 
 
 That such other person was endeavoring 
 to induce defendant to receive money, for the 
 purpose of accusing him of extortion, and 
 so could not have been moved by fear, will 
 not prevent his conviction for an attempt at 
 extortion; People v. Gardner, 144 N. Y. 119, 
 38 N. E. 1003, 2S L. R. A. 699, 43 Am. St. 
 Rep. 741; under an act declaring it a crime 
 to threaten a person with a criminal prose- 
 cution for the purpose of extorting money, 
 it is immaterial that the person making the
 
 BLACK MAIL 
 
 3G7 
 
 BLACKLISTING* 
 
 threats believed that the person threatened 
 had committed the crime; reople v. Eichler, 
 75 Hun 2G, 20 N. Y. Hupp. 90S ; where threats 
 of prosecution for perjury were made mali- 
 ciously and with intent to compel the one 
 threatened to do an act against his will, the 
 offence is complete; and it is immaterial 
 whether the one threatened was guilty of 
 perjury; People v. Wbittemore, 102 Mich. 
 519, Gl N. W. 13. In a prosecution under an 
 act providing for the punishment of one who, 
 for the purposes of extortion, sends a letter 
 expressing or implying, or adapted to imply, 
 any threat, and the letter threatens to make 
 a charge against the person to whom it is 
 sent, the truth or falsity of the charge is im- 
 material ; People v. Choynski, 95 Cal. 640, 
 30 Pac. 791 ; an act making it an offence to 
 accuse one of crime "with intent to extort 
 money," etc., does not cover the case of an 
 owner who demands compensation for prop- 
 erty criminally destroyed, and accompanies 
 his demand with a threat to accuse the de- 
 fendant of the crime, and, where he is in- 
 dicted for extortion, it is error to charge 
 that it is immaterial whether the accusa- 
 tion made by him was true or false; Mann 
 v. State, 47 Ohio St. 550, 26 N. E. 22G, 11 L. 
 R. A. G56. A charge of soliciting sexual in- 
 tercourse with the wife of another is a 
 charge of immoral conduct, which, if true, 
 would tend to disgrace one and subject him 
 to the contempt of society, and threatening 
 to make such charge is black mail ; Motsing- 
 er v. State, 123 Ind. 498, 24 N. E. 342. 
 
 On a trial for maliciously threatening to 
 accuse another of burning a building with 
 intent to extort money, evidence of the truth 
 of the charge is inadmissible on the question 
 of malice or of intent, or to impeach the 
 prosecuting witness; Com. v. Buckley, 148 
 Mass. 27, 18 N. E. 577, 1 L. R. A. 624. 
 
 BLACK RENTS. Rents reserved in work, 
 grain, or baser money than silver. Whishaw. 
 
 BLACK ROD, GENTLEMAN USHER OF 
 THE. A chief officer of the king, deriving 
 his name from his Black Rod of Office, on 
 the top of which reposes a golden lion. Dur- 
 ing the session of Parliament he attends on 
 the peers, summons the Commons to the 
 House of Lords, and to his custody all peers 
 impeached for any crime or contempt are 
 first committed. Black Book 255; Wharton. 
 His deputy is the Yeoman Usher. Similar 
 officers are found in the Dominion of Cana- 
 da and other colonies. Cent. Diet. 
 
 BLACKLEG. A professed gambler, a per- 
 son who makes a business of betting — not 
 necessarily dishonest, though disreputable: 
 3 H. & N. 376; 31 L. T. O. S. 217, per Pol- 
 lock, C. B. In the same case Watson, B., 
 thought the word had no precise significa- 
 tion; but Martin and Bramwell, BB., 
 thought it imputed the indictable offence of 
 cheating at cards. 
 
 BLACKLISTING. A list of names of per- 
 sons kept for the purpose of prohibiting or 
 recommending against dealings with them. 
 The publication of such a list is libellous 
 per se unless justified or privileged ; Ilart- 
 nett v. Plumbers' Supply Ass'n, 169 Mass. 
 229, 47 N. E. 1002, 38 L. R. A. 194 ; Nettles 
 v. Somervell, 6 Tex. Civ. App. 627, 25 S. W. 
 658; Western Union Telegraph Co. v. Pritch- 
 ett, 108 Ga. 411, 34 S. E. 216. To blacklist 
 has been held not to impute the comm 
 of a crime or other conduct exposing one 
 to public hatred, punishment, disgrace or 
 derision; Wabash R. Co. v. Young, 1G2 Ind. 
 L03, 0'.) N. E. 1003, 4 L. R. A. (X. S.) 1091. 
 False statements manifestly hurtful to a 
 man in his credit or business and intended 
 to be so are not privileged ; Weston v. Barni- 
 coat, 175 Mass. 454, 50 N. E. G19, 49 L. B. 
 A. 612 ; nor are communications sent to the 
 members of an organization for the purp'^e 
 of coercing the payment of the claims of the 
 persons publishing such communication ; 
 Muetze v. Tuteur. 77 Wis. 230, 40 N. W. 123, 
 9 L. R. A. 86, 20 Am. St Rep. 115. See Com- 
 lL Agency. ; Libel. 
 
 A more general understanding of the term 
 is that it has reference to the practice of one 
 employer presenting to another the names 
 of employes for the purpose of furnishing 
 information concerning their standing as em- 
 ployes ; State v. Justus, 85 Minn. 279, 88 X. 
 YV. 751), 50 L. R. A. 757, 89 Am. St Rep. 550. 
 
 In the report of the Anthracite Coal Strike 
 Commission, May, 1903, it is described as a 
 combination among employers not to employ 
 workmen discharged by any of the members 
 of the coal combination, and in this sense it 
 is recognized by the legislative enactments 
 in many of the states which prohibit employ- 
 ers from blacklisting an employe with the 
 intent of preventing his employment by oth- 
 ers. But many of these acts also contain a 
 provision that they shall not be construed 
 as preventing an employer from furnishing 
 a truthful statement of the cause of dis- 
 charge. Such an act is held not to be in vio- 
 lation of the 14th amendment and not to be 
 class legislation; State v. Justus. S5 Minn. 
 279, SS N. W. 759. 50 L. R. A. 757, S9 Am. 
 St. Rep. 550; Joyce v. R. Co., 100 Minn. 
 225, 110 N. W. 975, 8 L. R. A. (X. S.) 756. 
 
 In the absence of malice, it is not libel- 
 ous to circulate a blacklist of workmen 
 among officials whose duty it is to employ 
 them ; Missouri Pac. Ry. Co. v. Richmond, 
 73 Tex. 508, 11 S. W. 555. 4 L. R. A. 280, 15 
 Am. St. Rep. 794; and a record may be kept 
 of the reasons for the discharge of a rail- 
 way servant and communicated to persons 
 interested: Hebner v. R. Co.. 78 Minn. 289, 
 80 X. W. 1128, 79 Am. St. Rep. 387. Such a 
 communication, when the employe was dis- 
 charged Cor gn r of duty, was held 
 privileged; [1891] 2 (.„>. B. 1S9; but blacklist- 
 ing was held libelous in Hartnett v. Plumb-
 
 BLACKLISTING 
 
 368 
 
 BLANCH HOLDING 
 
 °rs' Supply Ass'n, 169 Mass. 229, 47 N. B. 
 1002, 38 L. R. A. 194. 
 
 An agreement among several railroad com- 
 panies not to employ a person discharged 
 for a good cause by any of lliem is not le- 
 gally injurious, unless the statements are 
 false and the person has sought and been 
 refused employment elsewhere; Hundley v. 
 R. Co., 105 Ky. 1G2, 48 S. W. 429. 63 L. R. A. 
 289, 88 Am. St. Rep. 298; nor is an agree- 
 ment among employers not to employ those 
 who leave without cause and refuse to con- 
 form to certain rules an unlawful combina- 
 tion or conspiracy ; Willis v. Mfg. Co., 120 
 Ga. 597, 48 S. E. 177, 1 Ann. Cas. 472. It 
 has been said that an agreement of employ- 
 ers not to employ a particular person, in or- 
 der more effectively to compete with em- 
 ployes, Is not distinguishable from an agree- 
 ment of laborers not to work for a particu- 
 lar person ; 17 Harv. L. R. 139 ; but see Mat- 
 tison v. R. Co., 3 Oh. S. C. & C. P. 526, where 
 such a combination of employers was de- 
 clared illegal. 
 
 Striking employes, whose names were in 
 a blacklist sent to other employers in the 
 same city, may not unite in an action. If a 
 right exists, it is in favor of each one sepa- 
 rately ; Worthington v. Waring, 157 Mass. 
 421, 32 N. E. 744, 20 L. R. A. 342, 34 Am. 
 St. Rep. 294. 
 
 An injunction will not be granted to re- 
 strain a company from placing employes' 
 names on a blacklist, or from maintaining 
 such a list and permitting other employers 
 to inspect it; Boyer v. Tel. Co., 124 Fed. 
 246; but see Casey v. Cincinnati Typograph- 
 ical Union No. 3, 45 Fed. 135, 12 L. R. A. 
 193, where the publication of posters, circu- 
 lars, etc., by employes for the purpose of 
 carrying out a conspiracy to boycott was 
 restrained by injunction. 
 
 A blacklisting statute requiring a corpo- 
 ration to give to its employes service letters 
 stating the true reason for their discharge 
 does not deprive it of the equal protection 
 of the laws under the 14th amendment; St 
 Louis Southwestern R. Co. v. Hixon (Tex.) 
 126 S. W. 338. 
 
 See Boycott ; Combination ; Conspiracy ; 
 Injunction ; Libel ; Laboe Union. 
 
 BLADA. Growing crops of grain. Spel- 
 man, Gloss. Any annual crop. Cowell. 
 Used of crops, either growing or gathered. 
 Reg. Orig. 94 & ; Coke, 2d Inst. 81. 
 
 BLANC SEIGN. It is a paper signed at 
 the bottom by him who intends to bind him- 
 self, give acquittance, or compromise at the 
 discretion of the person whom he entrusts 
 with such blanc seign, giving him power to 
 fill it with what he may think proper, ac- 
 cording to agreement. This power is person- 
 al and dies with the attorney. Musson v. 
 Blank, U. S., 6 Mart. O. S. (La.) 718. 
 
 BLANCH HOLDING. In Scotch Law. A 
 
 tenure by which land is held. 
 
 The duty is generally a trifling one, as a pepper- 
 corn. It may happen, however, that the duty is of 
 greater value; and then the distinction received in 
 practice is founded on the nature of the duty. Stair. 
 Inst. sec. 111. lib. 3, § 33. See Paterson, Comp. 15; 
 2 Bla. Com. 42. 
 
 BLANCHE FIRME. A rent reserved, pay- 
 able in silver. 
 
 BLANK. A space left in a writing, to be 
 filled up with one or more words to complete 
 the sense. 
 
 When a blank is left in a written agree- 
 ment which need not have been reduced to 
 writing, and w6uld have been equally bind- 
 ing whether written or unwritten, it is pre- 
 sumed, in an action for the non-performance 
 of the contract, parol evidence might be ad- 
 mitted to explain the blank. And where a 
 written instrument which was made pro- 
 fessedly to record a fact is produced as evi- 
 dence of that fact which it purports to re- 
 cord, and a blank appears in a material part, 
 the omission may be supplied by other proof ; 
 Wood v. Beach, 7 Vt. 522. Hence a blank 
 left in an award for a name was allowed to 
 be supplied by parol proof; Lynn v. Risberg, 
 2 Dall. (U. S.) 180, 1 L. Ed. 339. But where 
 a creditor signs a deed of composition, leav- 
 ing the amount of his debt in blank, he 
 binds himself to all existing debts; 1 B. & 
 Aid. 
 
 It is said that a blank may be filled by 
 consent of the parties and the instrument 
 remain valid; Cro. Eliz. 626; 11 M. & W. 
 468; Smith v. Crooker, 5 Mass. 538; Wood- 
 worth v. Bank, 19 Johns. (N. Y.) 396, 10 
 Am. Dec. 239; Cribben v. Deal, 21 Or. 211, 
 27 Pac. 1046, 28 Am. St. Rep. 746; though 
 not, it is said, where the blank is in a part 
 material to the operation of the instrument 
 as an instrument of the character which it 
 purports to be; 6 M. & W. 200; McKee v. 
 Hicks, 13 N. C. 379; Gilbert v. Anthony, 1 
 Yerg. (Tenn.) 69, 24 Am. Dec. 439; Boyd v. 
 Boyd, 2 N. & McC. (S. C.) 125; Byers v. 
 McClanahan, 6 Gill & J. (Md.) 250; at least, 
 without a new execution; 2 Pars. Cont. 8th 
 ed. *724. But see Wiley v. Moor, 17 S. & R. 
 (Pa.) 438, 17 Am. Dec. 696; Commercial 
 Bank of Buffalo v. Kortright, 22 Wend. (N. 
 Y.) 348, 34 Am. Dec. 317; Bank of Common- 
 wealth v. Curry, 2 Dana (Ky.) 142; Duncan 
 v. Hodges, 4 McCord (S. C.) 239, 17 Am. Dec. 
 734; 4 Bingh. 123. If a blank is left in a 
 policy of insurance for the name of the place 
 of destination of a ship, it will avoid the 
 policy; Park. Ins. 22; Wesk. Ins. 42. See 
 cases in note to 10 Am. Rep. 26S. 
 
 A power of attorney to convey land is in- 
 operative until the name of the attorney is 
 inserted by some one having authority from 
 the principal; U. S. v. Mfg. Co., 198 Fed. 
 881. As to filling in blanks after execution, 
 see Lewis's Gr. Evid. § 568.
 
 BLANK 
 
 3G9 
 
 BLASPHEMY 
 
 Leaving blanks in a note and chattel mort- 
 gage as to the amount, and the delivery of 
 the instruments in that condition, create an 
 agency in the receiver to fill them in the 
 manner contemplated by the maker; Mackcy 
 v. Basil, 50 Mo. App. 190. As between the 
 parties to a deed it is not void because it 
 did not contain the grantee's name when 
 acknowledged, if it was afterwards written 
 in by the grantor ; Vought's Ex'rs v. Vought, 
 50 N. J. Eq. 177, 27 Atl. 489. 
 
 Where the amount is left blank in the 
 body of a note, its insertion in figures in the 
 margin does not complete it; Hollen v. Dav- 
 is, 59 la. 444, 13 N. W. 413, 44 Am. Rep. 
 688; Norwich Bank v. Hyde, 13 Conn. 279; 
 contra, Witty v. Ins. Co., 123 Ind. 411, 24 
 N. E. 141, 8 L. R. A. 365, 18 Am. St. Rep. 
 327; nor if words as well as figures are in 
 the margin; Chestnut v. Chestnut, 104 Va. 
 539, 52 S. E. 348, 2 L. R. A. (N. S.) 879, 
 note, 7 Ann. Cas. 802. So where the name of 
 the payee is left blank, although a bona fide 
 holder may insert his own name; Tittle v. 
 Thomas, 30 Miss. 122, 64 Am. Dec. 156; it 
 must be done before suit; Thompson v. Rath- 
 bun, 18 Or. 202, 22 Pac. 837; Greenhow v. 
 Boyle, 7 Blackf. (Ind.) 56; Seay v. Bank, 3 
 Sneed (Tenn.) 558, 67 Am. Dec. 579. 
 
 A transfer of shares by deed executed in 
 blank as to the name of the purchaser or 
 the number of the shares, is void in Eng- 
 land, though sanctioned by the usage of 
 the stock exchange; 4 D. & J. 559; 2 H. & 
 C. 175. But the rule is otherwise in Kort- 
 right v. Bank, 20 Wend. (N. Y.) 91; German 
 Union BIdg. & Sav. Fund Ass'n v. Send- 
 meyer, 50 Pa. 67; (but see Denny v. Lyon, 38 
 Pa. 98, 80 Am. Dec. 463) ; Day v. Holmes, 
 103 Mass. 306; Bridgeport Bank v. R. Co., 
 30 Conn. 274. See the subject discussed in 
 Lewis, Stocks 50. As to blanks in notes, see 
 Knoxville Nat Bank v. Clark, 51 la. 264, 1 
 N. W. 491, 33 Am. Rep. 130. 
 
 See Alteration. 
 
 BLANK BAR. See Common Bab. 
 
 BLANK INDORSEMENT. An indorse- 
 ment which does not mention the name of 
 the person in whose favor it is made. 
 
 Such an indorsement is generally effected 
 by writing the indorser's name merely on 
 the back of the bill ; Chit. Bills 170. A note 
 so indorsed is transferable by delivery mere- 
 ly, so long as the indorsement continues 
 blank ; and its negotiability cannot be re- 
 stricted by subsequent special indorsements ; 
 1 Esp. 180; Peake 225; Mitchell v. Fuller. 15 
 Pa. 268, 53 Am. Dec. 594. See 3 Campb. 339 ; 
 Indorsement. 
 
 BLANKET POLICY. A policy which con- 
 templates that the risk is shifting, fluctuat- 
 ing, or varying, and is applied to a class of 
 property, rather than to any particular thing. 
 1 Wood, Ins. § 40. See Home Ins. Co. v. 
 Warehouse Co., 93 U. S. 541, 23 L. Ed. 868. 
 Bouv.— 24 
 
 BLASPHEMY. To attribute to God that 
 which is contrary to his nature, and does not 
 belong to him, and to deny what dues. A 
 false reflection uttered with a malicious de- 
 sign of reviling God. Emlyn's I'ref. to vol. 
 8, St. Tr. ; Com. v. Kneeland, 20 Pick. (M 
 244. 
 
 An impious or profane speaking of God 
 or of sacred things ; reproachful, contemptu- 
 ous, or irreverent words uttered Impiously 
 against God or religion. Blasphemy cog- 
 nizable by common law is defined by B 
 stone to be "denying the being or provi- 
 dence of God, contumelious reproaches of 
 our Saviour Christ, profane scoffing at the 
 Holy Scripture, or exposing it to contempt 
 or ridicule ;" by Kent as "maliciously re- 
 viling God or religion." 
 
 In general blasphemy may be described as con- 
 sisting in speaking evil of the Deity with an impi- 
 ous purpose to derogate from the divine majesty, 
 and to alienate the minds of others from the love 
 and reverence of God. It is purposely using words 
 concerning God calculated and designed to impair 
 and destroy the reverence, respect, and confidence 
 due to him as the intelligent creator, governor, and 
 judge of the world. It embraces the Idea of detrac- 
 tion, when used towards the Supreme Being ; as 
 "calumny" usually carries the same Idea when ap- 
 plied to an individual. It is a wilful and malicious 
 attempt to lessen men's reverence for God by deny- 
 ing his existence, or his- attributes as an intelligent 
 creator, governor, and judge of men, and to prevent 
 their having confidence in him as such; Com. v. 
 Kneeland, 20 Pick. (Mass.) 211, 212, per Shaw, C. J. 
 
 If a man, not for the sake of argument, 
 makes a scurrilous attack on doctrines which 
 the majority of persons hold to be true, in a 
 public place where passershy may be offended 
 and young people may come, he becomes lia- 
 ble for a blasphemous libel ; see 72 J. P. 188. 
 
 The offense of publishing a blasphemous 
 libel, and the crime of blasphemy, are in 
 many respects technically distinct, and may 
 be differently charged ; yet the same act may, 
 and often does, constitute both. The latter 
 consists in blaspheming the name of God, by 
 denying, cursing, or contumeliously reproach- 
 ing God, his creation, government, or final 
 judging of the world; and this may be done 
 by language orally uttered. But it is not the 
 less blasphemy if the same thing be done by 
 language written, printed, and publh 
 although when done in this form it also con- 
 stitutes the offence of libel; Com. v. Knee- 
 land, 20 Pick. (Mass.) 213, per Shaw, C. J.; 
 Heard, Lib. & SI. § 336. 
 
 In most of the United States, statutes have 
 been enacted against this offence; but these 
 statutes are not understood in all cases to 
 have abrogated the common law; the rule be- 
 ing that where the statute does not vary the 
 class and character of an offence, but only au- 
 thorizes, a particular mode of proceeding and 
 of punishment, the sanction is cumulative 
 and the common law is not taken away. And 
 it has been decided that neither these stat- 
 utes' nor the common-law doctrine is repug- 
 nant to the constitutions of those states in 
 which the question has arisen ; Heard, Lib.
 
 BLASPHEMY 
 
 370 
 
 BLASTING 
 
 & SI. § 343; Com. v. Kneeland, 20 Pick. 
 (Mass.) 206; Updegraph v. Com., 11 S. & R. 
 (Pa.) 394 ; People v. Ruggles, 8 Johns. (N. Y.) 
 290, 5 Am , Dec. 335; Andrew v. New York 
 Bible & Common Prayer Book Society, 4 
 Sandf. (N. Y.) 156 ; State v. Chandler, 2 Harr. 
 (Del.) 553; Vidal v. Girard, 2 How. (U. S.) 
 127, 11 L. Ed. 205. 
 
 In England, to speak, write and publish 
 any profane words vilifying or ridiculing God, 
 Jesus Christ or the Holy Ghost, the Old or 
 New Testament, or Christianity in general, 
 with intent to shock and insult believers or 
 to pervert or mislead the ignorant or unwary, 
 is a misdemeanor. The intent is an essential 
 element. Odgers, C. L. 206. See [1908] 72 
 J. P. 18S. 
 
 In Fiance, before the 25th of September, 
 1791, it was a blasphemy, also, to speak 
 against the Holy Virgin and the saints, to 
 deny the faith, to speak with impiety of 
 holy things, and to swear by things sacred; 
 Merlin, Repert. The law was repealed on 
 that date. 
 
 The Civil Law forbade blasphemy; such, 
 for example, as to swear by the hair of the 
 head of God; and it punished its violation 
 with death. Si cnim contra homines facta; 
 blasphemiw impunitw. non relinquuntur, 
 multo magis qui ipsum Deum blasphemant 
 digni sunt supplicia sustinere. (For if slan- 
 der against men is not left unpunished, much 
 more do those deserve punishment who blas- 
 pheme God.) No. 77. 1. § 1. 
 
 In Spain it is blasphemy not only to speak 
 against God and his government, but to 
 utter injuries against the Virgin Mary and 
 the saints. Senen Vilanova y Manes, Ma- 
 teria Criminal, fordnse, Observ. 11, cap. 3, 
 n. 1. See Christianity. 
 
 BLASTING. A mode of rending rock and 
 other solid substances by means of explo 
 sives. 
 
 Blasting rock in the city of New York is 
 necessary and therefore legal; Gourdier v. 
 Cormack, 2 E. D. Sm. (N. Y.) 254; Wiener 
 v. Hammell, 14 N. Y. Supp. 365. It is a use- 
 ful and often a necessary means for the 
 improvement of land, and where it does not 
 amount to a nuisance, the person is answer- 
 able only if negligent; Klepsch v. Donald, 4 
 Wash. 436, 30 Pac. 991, 31 Am. St. Rep. 936. 
 Absolute liability is imposed on the keeper 
 of dangerous explosives only when by rea- 
 son of the location and surrounding circum- 
 stances the magazine is a nuisance; Heeg v. 
 Licht, 80 N. Y. 579, 36 Am. Rep. 654. Many 
 cases hold that injuries to a house caused 
 by pulsations of the earth, vibrations of the 
 air, and jarring the house will not render 
 the one blasting liable therefor; Simon v. 
 Henry, 62 N. J. L. 486, 41 Atl. 692; Benner 
 v. Dredging Co., 134 N. Y. 156, 31 N. E. 328, 
 17 L. R. A. 220, 30 Am. St. Rep. 649; Holland 
 House Co. v. Baird, 169 N. Y. 136, 62 N. E. 
 149; Bessemer Coal, Iron & Land Co. v. 
 Doak, 152 Ala. 166, 44 South. 627, 12 L. R. 
 
 A. (N. S.) 389; in the absence of negligence 
 on his part; id.; contra, Fitz Simons & Con- 
 nell Co. v. Braun, 199 111. 390, 65 N. B. 249, 59 
 L. R. A. 421; City of Chicago v. Murdock, 
 212 111. 9, 72 N. E. 46, 103 Am. St. Rep. 221; 
 Longtin v. Persell, 30 Mont. 306, 76 Pac. 699, 
 65 L. R. A. 655, 104 Am. St. Rep. 723, 2 Ann. 
 Cas. 198; but it has been held in other cases 
 to be a nuisance where it causes loud noises 
 and renders adjoining property untenanta- 
 ble; Gossett v. R. Co., 115 Tenn. 376, 89 
 S. W. 737, 1 L. R. A. (N. S.) 97, 112 Am. St. 
 Rep. 846; that the continuance of the con- 
 cussions amount to a private nuisance; Mor- 
 gan v. Bowes, 17 N. Y. Supp. 22; and that 
 injury to buildings caused by blasting ren- 
 ders the user of the explosives liable in 
 damages, whether he was or was not negli- 
 gent; Farnandis v. R. Co., 41 Wash. 486, 84 
 Pac. 18, 5 L. R. A (N. S.) 10S6, 111 Am. St. 
 Rep. 1027; Colton v. Onderdonk, 69 Cal. 155, 
 10 Pac. 395, 58 Am. Rep. 556. One engaged in 
 blasting was held liable for a fire communi- 
 cated by the explosion of blasts ; City of Tiffin 
 v. McCormack, 34 Ohio St. 638, 32 Am. Rep. 
 408; and for the splitting of the underlying 
 strata of rock; Gourdier v. Cormack, 2 E. 
 D. Sm. (N. Y.) 200. That one attempting to 
 use dynamite in blasting cannot foresee the 
 consequences of his act does not relieve him 
 from liability for an injury to the occupant 
 of a neighboring property, in a populous 
 neighborhood; Kimberly v. Howland, 143 N. 
 C. 398, 55 S. E. 778, 7 L. R. A. (N. S.) 545. 
 
 For injuries to land caused by debris cast 
 thereon by blasts in an adjoining quarry, 
 trespass is the proper remedy ; Scott v. Bay, 
 3 Md. 431; right to blast for the purpose of 
 making excavations on one's own land is sub- 
 ject to the limitation that the soil, stones, 
 etc., must not be cast upon neighboring land; 
 Hay v. Cohoes Co., 2 N. Y. 159, 51 Am. Dec 
 279 (a leading case). An injunction will be 
 granted; Sayen v. Johnson, 4 Pa. Co. Ct. 
 360; Wilsey v. Callanan, 21 N. Y. Supp. 165; 
 though negligence is not proved ; Central 
 Iron & Coal Co. v. Vanderheuk, 147 Ala. 546, 
 41 South. 145, 61 L. R. A. (N. S.) 570, 119 
 Am. St. Rep. 102, 11 Ann. Cas. 346; and not- 
 withstanding the work was authorized by a 
 city ordinance; Rogers v. Hanfield, 14 Daly 
 (N. Y.) 339. So an injunction was granted 
 to prevent the violent disturbance of a house, 
 where the effect ultimately would be to shake 
 it down; Hill v. Schneider, 13 App. Div. 
 299, 43 N. Y. Supp. 1; but it is held that 
 blasting at night in a mine cannot be re- 
 strained by the owner of the surface, merely 
 because the blasting disturbs sleep; Marvin 
 v. Mining Co., 55 N. Y. 538, 14 Am. Rep. 322. 
 One who blasts on his own land is liable 
 where death results, irrespective of negli- 
 gence; Sullivan v. Dunham, 161 N. Y. 290, 
 55 N. E. 923, 47 L. R. A. 715, 76 Am. St. Rep. 
 274; though the blast is fired for a lawful 
 purpose and by one skilled at the work; 
 People's Gas Co. v. Tyner, 131 Ind. 277, 31
 
 BLASTING 
 
 371 
 
 BLOCKADE 
 
 N. B. 59, 16 L. R. A. 443, 31 Am. St. Rep. 
 433. It is negligence not to cover the blast, 
 where the work is done on land adjacent to 
 a public road ; Beauchamp v. Min. Co., 50 
 Mich. 163, 15 N. W. 65, 45 Am. Rep. 30. 
 Where a city ordinance requires the blast to 
 be covered and the oriflce to be protected 
 by planks and timber, a failure to comply 
 with it is a sufficient neglect of duty to jus- 
 tify a finding of negligence; Brannock v. 
 Elmore, 114 Mo. 55, 21 S. \V. 151; Devlin v. 
 Gallagher, 6 Daly (X. Y.) 494. If it is not 
 practicable to cover the blast, it Is incum- 
 bent on the person doing the work to see that 
 there is notice of danger ; Herrington v. Vil- 
 lage of Lansingburgh, 110 N. Y. 145, 17 N. 
 E. 728, 6 Am. St Rep. 34S; see City of Lo- 
 gansport v. Dick, 70 Ind. 65, 36 Am. Rep. 166. 
 On the ground that the work is intrinsically 
 dangerous, a city is held liable for damage 
 caused by blasting in a street done by a 
 contractor in constructing a sewer; City of 
 Joliet v. Harwood, 86 111. 110, 29 Am. Rep. 
 17; City of Logansport v. Dick, 70 Ind. 78, 
 36 Am. Rep. 166; but see Pack v. City of 
 New York, 8 N. Y. 222; Kelly v. City of New 
 York, 11 N. Y. 432; Simon v. Henry, 62 N. J. 
 L. 486, 41 Atl. 692. The negligence of a con- 
 tractor in blasting in a street to make trench- 
 es for a water company, was held to be 
 chargeable to the company; Ware v. St. Paul 
 Water Co., 2 Abb. U. S. 261, Fed. Cas. No. 
 17,172. 
 
 BLIND. The condition of one who is de- 
 prived of the faculty of seeing. 
 
 Persons who are blind may enter Into con- 
 tracts and make wills like others; Carth. 
 53; Barnes, 19; Boyd v. Cook, 3 Leigh (Va.) 
 32. When an attesting witness becomes 
 blind, his handwriting may be proved as if 
 he were dead; 1 Starkie, Ev. 341. But be- 
 fore proving his handwriting the witness 
 must be produced, if within the jurisdiction 
 of the court; 1 Ld. Raym. 734; 1 Mood. & 
 R. 258. 
 
 It is not negligence for a blind man to 
 travel along a highway; Sleeper v. Town 
 of Sandown, 52 N. H. 244. . 
 
 BLOCKADE. In International Law. The 
 actual investment of a port or place by a 
 hostile force fully competent, under ordinary 
 circumstances, to cut off all communication 
 therewith, so arranged or disposed as to be 
 able to apply its force to every point of 
 practicable access or approach to the port or 
 place so invested. 
 
 Nature and character. Blockades may be 
 either military or commercial, or may par- 
 take of the nature of both. As military 
 blockades they may partake of the nature 
 of a land or land and sea investment of a 
 besieged city or seaport, or tiny may con- 
 sist of a masking of the enemy's fleet by 
 another belligerent fleet in a port or anchor- 
 age where commerce does not e^ist. As 
 commercial blockades, they may consist of 
 
 operations against an enemy's trade or reve- 
 nue, either localized at a single important 
 seaport, or as a more comprehensive strat- 
 egic operation, by which the entire sea fron- 
 tier of an enemy is placed andei blockade. 
 A blockade, being an operation of war. any 
 government, Independent or de facto, \ 
 rights as a belligerent are recognized, can 
 Institute a blockade as an exercise of those 
 rights. 
 
 The Justification of blockade lies in the 
 international recognition of the necessity 
 which Hi" belligerent is under of imposing 
 that restriction upon neutral commerce for 
 the successful prosecution of hostilities. 
 
 It is not settled whether the mouth of an 
 international river can be blockaded in case 
 one or more of tbe upper riparian states re- 
 main neutral. But if a river constitutes the 
 boundary line between a belligerent and a 
 neutral, it may not be blockaded so as to 
 prevent access to the neutral side of the 
 river. The Peterhoff, 5 Wall. (U. S.) 49, 18 
 L. Ed. 564. In case of civil war, a govern- 
 ment may blockade certain of its own ports, 
 as was done by the United States during the 
 American Civil War and by France during 
 the Franco-Prussian War. 
 
 Effectiveness. In international jurispru- 
 dence it is a well-settled principle that the 
 blockading force must be present and of suf- 
 ficient force to be effective, and a mere no- 
 tification of one belligerent that the port of 
 the other is blockaded, sometimes termed a 
 paper blockade, is not sufficient to establish 
 a legal blockade. A blockade may be made 
 effective by batteries on shore as well as by 
 ships afloat, and, in case of inland ports, 
 may be maintained by batteries command- 
 ing the river or inlet by which it may be 
 approached, supported by a naval force suf- 
 ficient to warn off innocent and capture of- 
 fending vessels attempting to enter; The Cir- 
 cassian, 2 Wall. (U. S.) 135. 17 L. Ed. 796. 
 In 1S56 the Declaration of Taris prescribed 
 that blockades to be obligatory must be ef- 
 fective, that is to say, maintained by a suf- 
 ficient force really to prevent access of the 
 enemy's ships and other vessels. The United 
 States, although not a party to this declara- 
 tion, has upheld the same doctrine since 
 1781, when, by ordinance of Congress, it was 
 declared that there should be a number of 
 vessels stationed near enough to the pert to 
 make the entry apparently dangerous; Jour- 
 nals of Congress, vol. vii. p. 186. By the 
 convention of the Baltic Powers in 17b0, and 
 again in 1S01, the same doctrine was pro- 
 mulgated; and in lbll, by treaty between 
 Italy and the United States, a clearer and 
 more satisfactory definition of an effective 
 blockade was agreed upon, as follows: "It 
 is expressly declared that such places only 
 shall be considered blockaded as shall be 
 actually invested by naval forces capable 
 of preventing the entrance of neutrals, and
 
 BLOCKADE 
 
 372 
 
 BLOCKADE 
 
 so stationed as to create an evident danger 
 on their part to attempt it." 
 
 The French doctrine of an effective block- 
 ade is that access must be barred by a line 
 of ships forming a chain around the block- 
 aded port, while the United States, Great 
 Britain and Japan hold that it is sufficient 
 to have men-of-war cruising in the vicinity 
 of the port, provided the disposition of the 
 cruisers constitutes an actual danger to a 
 vessel seeking to run the blockade. A block- 
 ade does not cease to be effective because 
 the blockading force is temporarily with- 
 drawn owing to stress of weather. 1 C. Rob. 
 86, 154. If a single modern cruiser, blockad- 
 ing a port, renders it in fact dangerous for 
 other craft to enter the port, the blockade is 
 practically effective; the Olinde Rodrigues, 
 174 U. S. 510, 19 Sup. Ct. 851, 43 L. Ed. 1065. 
 Neutrals. To involve a neutral in the con- 
 sequences of violating the blockade, it is in- 
 dispensable that he should have due notice 
 of it This information may be communicat- 
 ed to him in two ways: either actually, by a 
 formal notice from the blockading power, or 
 constructively, by notice to his government, 
 or bv the notoriety of the fact; Prize Cases, 
 2 Black (U. S.) 635, 17 L. Ed. 459; 6 C. Rob. 
 Adm. 367; 2 id. 110, 12S; 1 Act. Prize Cas. 
 61. Formal notice is not required; any au- 
 thentic information is sufficient; 1 C. Rob. 
 Adm. 334; 5 id. 77, 286; Edw. Adm. 203; 3 
 Phill. Int. Law 397; The Revere, 24 Bost. 
 L. Rep. 276, Fed. Cas. No. 11,716; "Hall, Int. 
 L. 648; it is a settled rule that a vessel in 
 a blockaded port is presumed to have notice 
 of a blockade as soon as it begins; 2 Black 
 630. 
 
 Breach. A violation may be either by go- 
 ing into the place blockaded, or by coming 
 out of it with a cargo laden after the com- 
 mencement of the blockade. Also placing 
 himself so near a blockaded port as to be in 
 a condition to slip in without observation, 
 is a violation of the blockade, and raises the 
 presumption of a criminal intent; 6 C Rob. 
 Adm. 30, 101, 1S2; Radcliff v. Ins. Co., 7 
 Johns. (N. Y.) 47; 1 Edw. Adm. 202; Fitz- 
 simmons v. Ins. Co., 4 Cra. (U. S.) 185, 2 L. 
 Ed. 591; The Josephine, 3 Wall. (U. S.) 83, 
 18 L. Ed. 65. The sailing for a blockaded 
 port, knowing it to be blockaded, is held by 
 the English prize courts to be such an act as 
 may charge the party with a breach of the 
 blockade; British instructions to their fleet 
 in the West India station, Jan. 5, 1S04; and 
 the same doctrine is recognized in the Unit- 
 ed States; Yeaton v. Fry, 5 Cra. (U. S.) 335, 
 3 L. Ed. 117; The Nereide, 9 Cra. (U. S.) 
 440, 3 L. Ed. 769; 1 Kent *150; The Ber- 
 muda, 3 Wall. (U. S.) 514, 18 L. Ed. 200; 3 
 Phill. Int. Law, 397; Hall, Int. L. 662; The 
 Revere, 24 Bost. L. Rep. 276, Fed. Cas. No. 
 11,716. See Fitzsimmons v. Ins. Co., 4 Cra. 
 (U. S.) 185, 2 L. Ed. 591; Maryland Ins. Co. 
 v. Woods, 6 Cra. (U. S.) 29, 3 L. Ed. 143; 
 Vos v. Ins. Co., 2 Johns. Cas. (N. Y.) 180; id., 
 
 469; 10 Moore, P. C. 58; The Adula, 176 U. 
 S. 361, 20 Sup. Ct. 432, 44 L. Ed. 505. 
 
 But in the case of long voyages, sailing 
 for a blockaded port, contingently, might be 
 permitted, if inquiry were afterwards made 
 at convenient ports; Maryland Ins. Co. v. 
 Woods, 6 Cra. (U. S.) 29, 3 L. Ed. 143; Sper- 
 ry v. Delaware Ins. Co., 2 Wash. C. C. 243, 
 Fed. Cas. No. 13,236; but the ordinance of 
 1781 authorized the condemnation of vessels 
 "destined" to any blockaded port, without 
 any qualification based upon proximity or 
 notice. A neutral vessel in distress may en- 
 ter a blockaded port; The Diana, 7 Wall. 
 (U. S.) 354, 19 L. Ed. 165. 
 
 Penalty. When the ship has contracted 
 guilt by a breach of the blockade she may 
 be taken at any time before the end of her 
 voyage; but the penalty travels no further 
 than the end of her return voyage; 2 C. Rob. 
 Adm. 128; 3 id. 147; The Wren, 6 Wall. (U. 
 S.) 582, 18 L. Ed. 876. When taken, the ship 
 is confiscated ; and the cargo is always, pri- 
 ma facie, implicated in the guilt of the own- 
 er or master of the ship; and the burden of 
 rebutting the presumption that the vessel 
 was going in for the benefit of the cargo, 
 and with the direction of the owners rests 
 with them; 1 C. Rob. Adm. 67, 130; 3 id. 
 173; 4 id. 93; 1 Edw. Adm. 39. The Decla- 
 ration of London (g. v.) Arts. 1-21, apart 
 from re-stating existing practice, lays down 
 the following rules upon controverted points : 
 The question whether a blockade is effective 
 is a question of fact, that is, each case must 
 be decided upon its own merits ; a "declara- 
 tion" of the blockade must be made by the 
 blockading government or by the naval au- 
 thorities acting in its name. This declara- 
 tion must be followed by a "notification," 
 first, to the neutral powers themselves, and, 
 secondly, to the local authorities, who must, 
 in turn, notify the foreign consular officers 
 at the place. The liability of a' neutral ves- 
 sel is dependent upon the knowledge of the 
 blockade, and this knowledge is presumed if 
 the vessel left port subsequently to the noti- 
 fication of the blockade to the neutral power. 
 Neutral vessels may not be captured for 
 breach of blockade except within the area 
 of operations of the war-ships maintaining 
 the blockade, nor, if they have broken block- 
 ade "outwards," are they liable to capture 
 after pursuit has been abandoned by the 
 blocking force. This overrules the British 
 and American doctrine stated above. 
 
 BLOOD. Relationship; stock; family. 1 
 Roper, Leg. 103; 1 Belt, Suppl. Ves. 365. 
 Kindred. Bacon, Max. Reg. 18. 
 
 Brothers and sisters are said to be of the whole 
 blood if they have the same father and mother, and 
 of the half-blood if they have only one parent in 
 common. Baker v. Chalfant, 5 Whart. (Pa.) 477. 
 See Oglesby Coal Co. v. Pasco, 79 111. 166; 15 Ves. 
 107. 
 
 BLOOD FEUD. Avenging the slaughter 
 of kin on the person who slaughtered him,
 
 BLOOD FEUD 
 
 373 BOARD OF SPECIAL INQUIRY 
 
 or on his belongings. Whether the Teutonic 
 or the Anglo-Saxon law had a legal right of 
 blood feud has been disputed, but In Alfred's 
 day it was unlawful to begin a feud until 
 an attempt had been made to exact the price 
 of the life (wer-gild). 
 
 BLOOD STAINS. See Stains, Blood. 
 
 BLOOD HOUND. Evidence from the track- 
 ing of a prisoner by bloodhounds is not per- 
 missible until it is shown that they were re- 
 liable and accurate; State v. Adams, 85 
 Kan. 435, 116 Pac. 608, 35 L. R. A. (N. S.) 
 870; State v. Dickerson, 77 Ohio St. 34, 82 
 N. E. 9G9, 122 Am. St. Rep. 479. 11 Ann. Cas. 
 1181 ; other cases express in various ways 
 the foundation that must be laid; Richard- 
 son v. State, 145 Ala. 46, 41 South. 82, 8 
 Ann. Cas. 108; Parker v. State, 46 Tex. Cr. 
 R. 461, 80 S. W. 1008, 108 Am. St. Rep. 1021, 
 3 Ann. Cas. 893; in Brott v. State, 70 Neb. 
 395, 97 N. W. 593, 63 L. R. A. 7S9, such evi- 
 dence is held dangerous and incompetent. 
 
 Such dogs are remarkable for their sense 
 of smell and ability to follow a scent or 
 track a human being: to permit evidence 
 that a hound has tracked an alleged crim- 
 inal, it must be shown that it had been train- 
 ed in that work ; Pedigo v. Com., 103 Ky. 
 41, 44 S. W. 143, 42 L. R. A. 432, 82 Am. St. 
 Rep. 566. 
 
 BLOOD WIT. An amercement for blood- 
 shed. Cowell. The privilege of taking such 
 amercements. Skene. 
 
 A privilege or exemplion from paying a 
 fine or amercement assessed for bloodshed. 
 Cowell; Termes de la Ley. 
 
 BLUE LAWS. A name often applied to 
 severe laws for the regulation of religious 
 and personal conduct in the colonies of Con- 
 necticut and New Haven; hence any rigid 
 Sunday laws or religious regulations. The 
 best account of the Blue Laws is by Trum- 
 bull, "The True Blue Laws of Connecticut 
 and New Haven, and the False Blue Laws 
 invented by the Rev. Sam'l Peters, etc." 
 The latter reference is to a collection with- 
 out credit. See also Hinman ; Schmucker, 
 Blue Laws; Barker, Hist. & Antiq. of New 
 Haven; Peters, Hist. Conn.; Fiske, Begin- 
 nings of New England 238. 
 
 BLUE SKY LAW. A popular name for 
 acts providing for the regulation and super- 
 vision of investment companies, for the pro- 
 tection of the community from investing in 
 fraudulent companies. The first of these 
 acts was passed in Kansas (1911). Some 
 twenty states have passed them. Such act 
 was held valid in a lower court in Kansas, 
 and invalid in Alabama & N. O. Transp. Co. 
 v. Doyle, 210 Fed. 173 (Michigan act). 
 
 BOARD OF HEALTH. See Health ; Del- 
 egation. 
 
 BOARD OF SPECIAL INQUIRY. An in- 
 strument of executive power, not a court, 
 made up of the immigrant officials in the 
 
 service, subordinates of the commissioner of 
 immigration, whose duties are declared 
 administrative, lis .. are not bind- 
 
 ing upon the Secretary of Commerce. The 
 act of congress making them final n 
 final where they are most likely I" I" 
 tioned, in the courts; Pearson v. Williams, 
 202 U. S. I'M. 26 Sup. ci. tins. 50 L. Ed 
 
 BOARD OF SUPERVISORS. A county 
 
 board of representatives of towns or town- 
 ships, under a system existing in some 
 states, having charge of the fiscal affairs of 
 the county. 
 
 This system originated in the state of New York, 
 and has been adopted in Michigan, Illinois, Wiscon- 
 sin, and Iowa. The board, when convened, forms a 
 deliberative body, usually acting under parliamen- 
 tary rules. It performs the same duties and exer- 
 cises like authority as the County Commissioners 
 or Board of Civil Authority in other states. See, 
 generally, Haines's Township Laws of Mich., and 
 Haines's Town Laws of 111. & Wis. 
 
 BOARD OF TRADE. See Cuambeb of 
 Commerce; Gbain. 
 
 BOARDER. One who makes a special 
 contract with another person for food with 
 or without lodging. Berkshire Woollen Co 
 v. Proctor, 7 Cush. (Mass.) 424; Pollock v. 
 Landis, •".<; la. 651. To be distinguished from 
 a guest of an innkeeper; Story, Bailm. § 
 477; McDaniels v. Robinson, 20 Vt. 343, 62 
 Am. Dec. 574; Chamberlain v. Masterson, 
 20 Ala. 371; Berkshire Woollen Co. v. Proc- 
 tor, 7 Cush. (Mass.) 417. See Edwards, Bail- 
 ments § 456. 
 
 In a boarding-house, the guest Is under 
 an express contract, at a certain rate, for a 
 certain time; but in an inn there is usually 
 no express engagement: the guest, being on 
 his way, is. entertained from day to day ac- 
 cording to his business, upon an implied con- 
 tract; Willard v. Reinhardt, 2 E. D. Smith 
 (N. Y.) 148; Stewart v. McCready. L'l Bow. 
 Pr. (N. Y.) 62; Cady v. McDowell, 1 Lans. 
 (N. Y.) 484. 
 
 There is a duty on the part of a boardi'iu- 
 house keeper to take reasonable care for the 
 safety of property brought by a guest into 
 his house, and evidence of refusal to furnish 
 a key of the bed room and also for a chest 
 of drawers therein was sufficient to go to the 
 Jury as a breach of that duty; [1905] 2 K^ 
 B. 805, in the English Court of Appeal, 
 where the prior cases are examined and crit- 
 icized, and Danzy v. Richardson, 3 E. & B. 
 144, is approved. Holder v. Soulley, 8 C. B. 
 N. S. 254, not followed, and Calye's Case, 
 8 Co. 32 a, explained. See note in 31 Mag. 
 L. Rev. 226; Bailment; Innkeeper. 
 
 BOAT. A boat does not pass by the sale 
 of a ship and appurtenances ; Molloy. b. 2. 
 c. 1, § 8 ; Beawes, Lex. Mere. 56; Starr v. 
 Goodwin, 2 Root (Conn.) 71 ; Park Ins. 8th 
 ed. 126. But see Briggs v. Strange, 17 
 Mass. 405; 2 Marsh. 727. Insurance on a 
 ship covers her boats; 1 Mann. & R. .;'.'_': 
 1 Pars. Marit Law 72, n.
 
 BOC 
 
 374 BONA FIDE HOLDER FOR VALUE 
 
 BOC (Sax.). A writing; a book. "Used of 
 the land-bocs, or evidences of title amonu 
 the Saxons, corresponding to modern deeds. 
 These bocs were destroyed by William the 
 Conqueror. 1 Spence, Eq. Jur. 22 : 1 Washb. 
 R. P. *17, 21. See 1 Toll. & Maitl. 472, 571 ; 
 2 id. 12, S6. 
 
 BOC HORDE. A place, where books, evi- 
 dences, or writings are kept. Cowell. These 
 were generally in monasteries. 1 Spence, 
 Eq. Jur. 22. 
 
 BOC LAND. Alodial lands held by writ- 
 ten evidence of title. 
 
 Such lands might be granted upon such terms as 
 the owner should see fit, by greater or less estate, 
 to take effect presently, or at a future time, or on 
 the happening of any event. In this respect they 
 differed essentially from feuds. 1 Washb. 5th ed. R. 
 P. *17 ; 4 Kent 441. But see Alod. 
 
 BODY. A person. Used of a natural 
 body, or of an artificial one created by law, 
 as a corporation. 
 
 A collection of laws ; that is, the embodi- 
 ment of the laws in one connected state- 
 ment or collection, called a body of laws. 
 
 In practice when the sheriff returns cepi corpus 
 to a capias, the plaintiff may obtain a rule, before 
 special bail has been entered, to bring in the body ; 
 and this must be done either by committing the de- 
 fendant or entering special bail. See Dead Body. 
 
 BODY CORPORATE. A corporation. This 
 is an early and undoubtedly correct term to 
 apply to a corporation. Co. Litt. 250 a; Ay- 
 liffe, Par. 196; Ang. Corp. § 6. 
 
 BODY POLITIC. See Corporation. 
 
 BONA (Lat. bonus). Goods; personal 
 property; chattels, real or personal; real 
 
 property. 
 
 Bona et catalla (goods and chattels) includes all 
 kinds of property which a man may possess. In the 
 Roman law it signified every kind of property, real, 
 personal, and mixed; but chiefly it was applied to 
 real estate, chattels being distinguished by the 
 words effects, movables, etc. Bona were, however, 
 divided into bona mobilia and bona immobilia. It 
 is taken in the civil law in nearly the sense of Mens 
 in the French law. See Nulla Bona. 
 
 BONA CONFISCATA. Goods confiscated 
 or forfeited to the imperial fisc or treasury. 
 1 Bla. Com. 299. 
 
 BONA FIDE HOLDER FOR VALUE. 
 The Negotiable Instruments Act provides, § 
 52: A holder in due course is a holder who 
 has taken the instrument under the follow- 
 ing conditions: 1. That it is complete and 
 regular upon its face; 2. That he became 
 the holder of it before it was overdue, and 
 without notice that it had been previously 
 dishonored, if such was the fact; 3. That 
 he took it in good faith and for value ; 4. 
 That at the time it was negotiated to him he 
 had no notice of any infirmity in the instru- 
 ment or defect in the title of the person ne- 
 gotiating it. 
 
 Where an instrument payable on demand 
 is negotiated an unreasonable length of time 
 after its issue, the holder is not deemed a 
 holder in due course. 
 
 If he has had notice of any infirmity in 
 the instrument or defect in the title of the 
 person he took it from before he had paid 
 the full amount agreed to be paid, he is a 
 holder in due course only to the amount 
 theretofore paid by him. The title of a per- 
 son who negotiates an instrument is defec- 
 tive when he obtained it, or any signature to 
 it, by fraud, duress, or force and fear, or 
 other unlawful means, or for an illegal con- 
 sideration, or when he negotiates it in breach 
 of faith, or under such circumstances as 
 amount to a fraud. To constitute notice of 
 an infirmity, etc., the person to whom it is 
 negotiated must have had actual knowledge 
 of the infirmity or defect, or knowledge of 
 such facts that his action in taking the in- 
 strument amounted to bad faith. 
 
 In the hands of any holder other than a 
 holder in due course, a negotiable instru- 
 ment is subject to the same defenses as if 
 it were non-negotiable; but a holder who 
 derives his title through a holder in due 
 course and is not himself party to any fraud 
 or illegality affecting the instrument, has all 
 the rights of such former holder in respect 
 of all parties prior to the latter. 
 
 Every holder is deemed prima facie to be 
 a holder in due course ; but when it is shown 
 that the title of any person who has ne- 
 gotiated the instrument is defective, the 
 burden is on the holder to prove that he or 
 some person under whom he claims acquired 
 the title as holder in due course; but this 
 does not apply in favor of a party who be- 
 came bound on the instrument prior to the 
 acquisition of such defective title. See Ne- 
 gotiable Instruments for the States, etc., 
 in which it is enacted. 
 
 BONA FIDE PURCHASER FOR VALUE. 
 
 See Purchaser for Value without Notice. 
 
 BONA FIDES. Good faith, honesty, as 
 distinguished from mala fides (bad faith). 
 Bona fide. In good faith. 
 
 BONA FORISFACTA. Forfeited goods. 
 1 Bla. Com. 299. 
 
 BONA GESTURA. Good behavior. 
 
 BONA GRATIA. Voluntarily; by mutual 
 consent. Used of a divorce obtained by the 
 agreement of both parties. 
 
 BONA MOBILIA. In Civil Law. Mova- 
 bles. Those things which move themselves 
 or can be transported from one place to an- 
 other; which are not intended to make a 
 permanent part of a farm, heritage, or build- 
 ing. 
 
 BONA NOTABILIA. Chattels or goods of 
 sufficient value to be accounted for. 
 
 Where a decedent leaves goods of sufficient 
 amount (bona notabilia) in different dioceses, ad- 
 ministration is granted by the metropolitan, to pre- 
 vent the confusion arising from the appointment of 
 many different administrators; 2 Bla. Com. 509; 
 Rolle, Abr. 908; Williams, Ex. 7th ed. The value
 
 BONA NOTABILIA 
 
 375 
 
 BOND 
 
 necessary to constitute property bona notabilia has 
 varied at different periods, but was finally estab- 
 lished at £5, in 1603. 
 
 BONA PERITURA. Perishable goods. 
 An executor, administrator, or trustee Is 
 bound to use due diligence in disposing of 
 perishable goods, such as fattened cattle, 
 grain, fruit, or any other article which may 
 be worse for keeping; Bacon, Abr. Execu- 
 tors; 5 Co. 9; Cro. Eliz. 518; McCall v. 
 Peachy's Adm'r, 3 Munf. (Va.) 2S8 ; 1 Beatt. 
 Ch. 5, 14. A carrier is in general not liable 
 for injuries to perishable goods occurring 
 without his negligence; 7 L. R. Ch. 573; 1 
 C. P. D. 423. He may discriminate in favor 
 of such goods, if pressed by a rush of busi- 
 ness ; Great Western Ry. Co. v. Burns, 60 
 111. 2S4 ; Michigan Cent. 'R. Co. v. Burrows, 
 33 Mich. G ; Peet v. R. Co., 20 Wis. 594, 91 
 Am. Dec. 446. See Perishable Goods. 
 
 BONA VACANTIA. Goods to which no 
 one claims a property, as shipwrecks, treas- 
 ure-trove, etc. ; vacant goods. 
 
 Bona vacantia belonged, under the common law, 
 to the finder, except in certain instances, when they 
 were the property of the king. 1 Sharsw. Bla. Com. 
 298, n. 
 
 BONA WAVIATA. Goods thrown away 
 by a thief in his fright for fear of being ap- 
 prehended. By common law such goods be- 
 longed to the crown. 1 Bla. Com. 296. 
 
 BOND. An obligation in writing and un- 
 der seal. Taylor v. Glaser, 2 S. & R. (Pa.) 
 502; Pinkard v. Ingersol, 11 Ala. 19; Can- 
 tey v. Duren, Harp. (S. C.) 434; Deming 
 v. Bullitt, 1 Blackf. (Ind.) 241; Denton v. 
 Adams, 6 Vt. 40; Harman v. Harman, 1 
 Baldw. 129, Fed. Cas. No. 6,071; Biery v. 
 Steckel, 194 Pa. 445, 45 Atl. 376. 
 
 It may be single — simplex obligatio — as 
 where the obligor obliges himself, his heirs, 
 executors, and administrators, to pay a cer- 
 tain sum of money to another at a day nam- 
 ed, or it may be conditional (which is the 
 kind more generally used), that if the oblig- 
 or does some particular act, the obligation 
 shall be void, or else shall remain in full 
 force, as payment of rent, performance of 
 covenants in a deed, or repayment of a prin- 
 cipal sum of money, borrowed of the ob- 
 ligee, with interest, which principal sum is 
 usually one-half of the penal sum specified 
 in the bond. 
 
 There must be proper parties ; and no 
 person can take the benefit of a bond except 
 the parties named therein ; Fuller v. Fuller- 
 ton, 14 Barb. (N. Y.) 59; except, perhaps, in 
 some cases of bonds given for the perform- 
 ance of their duties by certain classes of 
 public officers; Fellows v. Gilman, 4 Wend. 
 (N. Y.) 414; Ing v. State, 8 Md. 287; Roll 
 v. Raguet, 4 Ohio 418, 22 Am. Dec. 7."1> : Bak- 
 er v. Bartol, 7 Cal. 551; Hartz v. Com., 1 
 Grant, Cas. (Pa.) 359; State v. Druly, 3 
 Ind. 431. A man cannot be bound to him- 
 self even in connection with others; Smith 
 
 v. Lusher, 5 Cow. (N. Y.) 6S8. See McDowell 
 v. Butler, 56 N. C. 311. But if a bond is 
 given by the treasurer of a corporation to 
 the directors as a class, of which he is one, 
 it is not for that reason invalid; Durburow 
 v. Niehoff, 37 111. App. 403. If the I 
 run to several persons jointly, all must join 
 in suit for a breach, though it be condition- 
 ed for the performance of different things 
 for the benefit of each ; Pearce v. Hitch- 
 cock, 2 N. Y. 3S8. 
 
 The instrument must be in writing and 
 sealed; Barman v. Harman, 1 Baldw. 129, 
 Fed. Cas. No. 6,071; Denton & Smith v. 
 Adams, 6 Vt. 40; but a sealing sufficient 
 where the bond is made is held sufficient 
 tbough it might be an insufficient sealing if 
 it had been made where it is sued on ; Mere- 
 dith v. Hinsdale, 2 Caines (N. Y.) 362. The 
 signature and seal may be in any part of the 
 instrument; Reed v. Drake, 7 Wend. (N. Y.) 
 345. See McLeod v. State, 69 Miss. 221, 13 
 South. 268. An instrument not under seal 
 is not a bond and will not satisfy a statute 
 requiring an appeal bord; Corbin v. Las- 
 well, 48 Mo. App. 626 ; although in the body 
 thereof it is recited that the parties there- 
 to have set their hands and seals; Williams 
 v. State, 25 Fla. 734, 6 South. 831, 6 L. R. A. 
 821. 
 
 It must be delivered by the party whose 
 bond it is to the other; Carey v. Dennis, 1.°. 
 Md. 1; Chase v. Breed, 5 Gray (Mass.) 440; 
 Towns v. Kellett, 11 Ga. 2S6 ; Harris v. Reg- 
 ester, 70 Md. 109, 16 Atl. 386. But the de- 
 livery and acceptance may be by attorney; 
 Madison & I. Plank-Road Co. v. Stevens, 10 
 Ind. 1. The date is not considered of the 
 substance of a deed ; and therefore a bond 
 which either has no date or an impossible 
 one is still good, provided the real day of its 
 being dated or given, that is, delivered, can 
 be proved; 2 Bla. Com. 304; Com. Dig. 
 Fait, B, 3 ; rRoss v. Overton, 3 Call (Va.) 309, 
 2 Am. Dec. 552. There is a presumption that 
 a deed was executed on the day of its date; 
 Steph. Dig. Ev. Art. 87; Costigan v. Gould, 
 5 Denio (X. Y.) 290. 
 
 The condition is a vital part of a condi- 
 tional bond, anil generally limits and deter- 
 mines the amount to be paid in ease of a 
 breach; Strang v. Holmes, 7 Cow. (N. Y.I 
 224; but interest and costs may be added; 
 Van Wyck v. Montrose, 12 Johns. i\. \.< 
 350; Campbell v. Pope, 1 Hempst. -71. Fed. 
 Cas. No. 2,r!t:;5a. The recovery against a 
 surety in ;i bond for the payment of money 
 is not limited to the penalty, but may ex- 
 ceed it so far as necessary to include inter- 
 est from the time of the breach. So far as 
 interest is payable by the terms of the con- 
 tract, and until default made, it is limited 
 by the penalty; but after breach it is re- 
 coverable, not on the ground of contract, but 
 as damages, which the law gives for its vi- 
 olation; Brainard" v. Jones, 18 N. Y. 35.
 
 BOND 
 
 376 
 
 BOND 
 
 See Philadelphia & R. R. Co. v. Knight, 124 
 Pa. 58, 16 Atl. 492. The omission from a 
 statutory bond of a clause which does not 
 affect the rights of the parties, and imposes 
 no harder terms upon the obligors, does not 
 invalidate it ; Power v. Graydon, 53 Pa. 
 198. 
 
 Where a bond is for the performance of 
 an illegal contract the parties are not bound 
 thereon; State v. Pollard, 89 Ala. 179, 7 
 South. 765. 
 
 On the forfeiture of the bond, or its be- 
 coming single, the whole penalty was for- 
 merly recoverable at law; but here the 
 courts of equity interfered, and would not 
 permit a man to take more than in con- 
 science he ought, viz.: his principal, interest, 
 and expenses in case the forfeiture accrued 
 by non-payment of money borrowed, the 
 damages sustained upon non-performance 
 of covenants, and the like. And the like 
 practice having gained some footing in the 
 courts of law, the statute 4 & 5 Anne, c. 16, 
 at length enacted, that, in case of a bond 
 conditioned for the payment of money, the 
 payment or tender of the principal sum due 
 with interest and costs, even though the 
 bond were forfeited and a suit commenced 
 thereon, should be a full satisfaction and 
 discharge; 2 Bla. Com. 340. 
 
 All of the obligors in a joint bond are 
 presumed to be principals, except such as 
 have opposite their names the word "se- 
 curity;" Harper's Adm'r v. McVeigh's Adm'r, 
 S2 Va. 751, 1 S. E. 193 ; or unless it is other- 
 wise expressed. 
 
 If in a bond the obligor binds himself, 
 without adding his heirs, executors, and ad- 
 ministrators, the executors and adminis- 
 trators are bound, but not the heir; Shep- 
 pard, Touchst. 369; for the law will not 
 imply the obligation upon the heir ; Co. Litt. 
 209 a. 
 
 If a bond lie dormant for twenty years, 
 it cannot afterwards be recovered ; for the 
 law raises a presumption of its having been 
 paid, and the defendant may plead solvit ad 
 diem to an action upon it; 1 Burr. 434 ; 4 
 id. 1963. And in some cases, under partic- 
 ular circumstances, even a less time may 
 create a presumption ; 1 Term 271 ; Cowp. 
 109. The presumption of payment after 
 twenty years is in the nature of a statute 
 .of limitations. It is available as a bar to 
 an action to recover on the instrument, but 
 not where the party asks affirmative relief 
 based upon the fact of payment; Lawrence 
 v. Ball, 14 N. Y. 477. 
 
 Where a company bought in its own de- 
 bentures and then reissued them, held that 
 the new holder could not claim pari passu 
 with the other holders; [1904] 2 Ch. 474; 
 so where debentures were used as collateral 
 and the loan was paid and a second loan 
 made; [1907] 2 Ch. 540; [1906] 2 Ch. 216; 
 [1905] 2 Ch. 587, A. C. But where receivers 
 used the corporate funds to buy in its mort- 
 
 gage funds, it was held that If reissued, 
 they could share in the mortgage security ; 
 In re Fifty-Four First Mortgage Bonds, 15 
 S. C. 304, Simpson, C. J., dissenting upon 
 the ground that they had been extinguished. 
 In Pruyne v. Mfg. Co., 92 Hun 214, 36 N. T. 
 Supp. 361, there seems to have been an agree- 
 ment that there was no merger. Corporation 
 mortgages usually provide that all bonds 
 shall share equally in the mortgage secur- 
 ity, no matter when issued, so that the Eng- 
 lish cases are not in point. 
 
 Forthcoming Bond. A bond conditioned 
 that a certain article shall be forthcoming 
 at a certain time or when called for. 
 
 General Mortgage Pond. A bond secured 
 upon an entire corporate property, parts of 
 which are subject to one or more prior mort- 
 gages. 
 
 Heritable Bond. In Scotch Law, a bond 
 for a sum of money to which is joined a 
 conveyance of land or of heritage, to be held 
 by the creditor in security of the debt. 
 
 Income Bonds. Bonds of a corporation 
 the interest of which is payable only when 
 earned and after payment of interest upon 
 prior mortgages. 
 
 Lloyd's Bond. A bond issued for work 
 done or goods delivered and bearing Inter- 
 est. This was a device of an English bar- 
 rister named Lloyd, by which railway and 
 other companies did, in fact, increase their 
 indebtedness without technically violating 
 their charter provisions prohibiting the in- 
 crease of debt. 
 
 Municipal Bond, q. v. 
 
 Railroad Aid Bonds are issued by mu- 
 nicipal corporations to aid in the construc- 
 tion of railways. The power to subscribe 
 to the stock of railways, and to issue bonds 
 in pursuance thereof, does not belong to 
 towns, cities, or counties, without special au- 
 thority of the legislature, and the power of 
 the latter to confer such authority, where 
 the state constitution is silent, has been a 
 much-contested question. The weight of the 
 very numerous decisions is in favor of the 
 power. In several of the states the consti- 
 tutions prohibit or restrict the right of mu- 
 nicipal corporations to invest in the stock of 
 railroads or similar corporations ; Citizens' 
 Savings & Loan Ass'n v. Topeka, 20 Wall. 
 (U. S.) 655, 22 L. Ed. 455; Pitzman v. Vil- 
 lage of Freeburg, 92 111. Ill ; Lowell v. City 
 of Boston, 111 Mass. 454, 15 Am. Rep. 39; 
 Ogden v. Daviess County, 102 U. S. 634, 26 
 L. Ed. 263; Harshman v. County Court. 
 122 U. S. 306, 7 Sup. Ct. 1171, 30 L. Ed. 
 1152; Knox County v. Bank, 147 U. S. 91. 
 13 Sup. Ct. 267, 37 L. Ed. 93; Barnum v. 
 Okolona, 148 U. S. 393, 13 Sup. Ct. 638, 37 
 L. Ed. 495; Cairo v. Zane, 149 U. S. 122, 
 13 Sup. Ct. 803, 37 L. Ed. 673 ; McKittrick 
 v. Ry. Co., 152 U. S. 473, 14 Sup. Ct. 661, 
 38 L. Ed. 518; Rogers v. Keokuk, 154 U. S. 
 546, 14 Sup. Ct. 1162, 18 L. Ed. 74; ^Etna 
 Life Ins. Co. v. Pleasant Tp., 62 Fed. 718,
 
 BOND 
 
 377 
 
 BONDAGE 
 
 10 C. C. A. 611 ; Denison v. City of Colum- 
 bus, 62 Fed. 775; Atlantic Trust Co. v. 
 Town of Darlington, 63 Fed. 76 ; Dill. Mun. 
 Corp. § 508. 
 
 The recital in bonds issued by a municipal 
 corporation in payment of a subscription to 
 railroad stock, that they were issued "in pur- 
 suance of an act of the legislature . 
 and ordinances of the city council . . . pass- 
 ed in pursuance thereof," does not put a bona 
 fide purchaser for value upon inquiry as to 
 the terms of the ordinances under which the 
 bonds were issued, nor does it put him on in- 
 quiry whether a proper petition of two- 
 thirds of the residents had been presented 
 to the common council before it subscribed 
 for the stock; Evansville v. Dennett, 161 U. 
 S. 434, 16 Sup. Ct 613, 40 L. Ed. 760; and 
 recitals in county bonds, that they are is- 
 sued in pursuance of an order of the court, 
 etc., as a subscription to the capital stock, 
 estop the county issuing them as against 
 an innocent purchaser from showing that the 
 bonds are void because in fact issued as a 
 donation to the railroad company, whereas 
 the statute only authorized a subscription 
 to its stock; Ashman v. Pulaski County, 73 
 Fed. 927, 20 C. C. A. 232; where a county, 
 under authority from the state, issued its 
 bonds in payment of a subscription to stock 
 in a railway company, made upon a condi- 
 tion which was never complied with, and 
 which was subsequently waived by the coun- 
 ty, and received and held the certificates and 
 paid interest on its bonds and refunded 
 them under legislative authority, the bonds 
 originally issued were held valid in the 
 hands of a bona fide holder for value before 
 maturity ; Graves v. Saline County, 161 U. 
 S. 359, 16 Sup. Ct. 526, 40 L. E&. 732 ; where 
 there is a total want of power to subscribe 
 for such stock and to issue bonds in pay- 
 ment, a municipality cannot estop itself by 
 admissions or by issuing securities in negoti- 
 able form, nor even by receiving and enjoy- 
 ing the proceeds of such bonds ; id. 
 
 Straw Bono. A bond upon which is used 
 either the name of fictitious persons or those 
 unable to pay the sum guaranteed; general- 
 ly applied to insufficient bail bonds, improp- 
 erly taken, and designated by the term 
 "straw bail." 
 
 As to the overissue of bonds, see Overis- 
 sue. 
 
 BONDAGE. A term which has not ob- 
 tained a juridical use distinct from the ver- 
 nacular, in which it is either taken as a 
 synonym with slavery, or as applicable to 
 any kind of personal servitude which is in- 
 voluntary in its continuation. 
 
 The propriety of making it a distinct juridical 
 term depends upon the sense given to the word 
 slavery. If slave be understood to mean, exclu- 
 sively, a natural person who", in law, Is known as 
 an object in respect to which legal persons may 
 have rights of possession or property, as in respect 
 to domestic animals and inanimate things, it is 
 
 evident that any one who Is regarded as a legal per- 
 son, capable of rights and obligations in other rela- 
 tions, while bound by law to render service to an- 
 other, Is not a slave in the same sense of the word. 
 Such a one stands In a legal relation, being under 
 an obligation correlative to the right of the person 
 who Is by law entitled to his service, and, though 
 not an object of property, nor possessed or owned as 
 a chattel or thing, he is a person bound to the 
 other, and may be called a bondman, in distinction 
 from a slave as above understood. A greater or 
 less number of rights may be attributed to persons 
 bound to render service. Bondage may subsist un- 
 der many forms. Where the rights attributed are 
 such as can be exhibited in very limited spheres of 
 action only, or are very imperfectly protected, it 
 may be difficult to see wherein the condition, though 
 nominally that of a legal person, differs from chat- 
 tel slavery. Still, the two conditions have been 
 plainly distinguishable under many legal systems, 
 and even as existing at the same, time under one 
 source of law. The Hebrews may have held persons 
 of other nations as 6laves of that chattel condition 
 which anciently was recognized by the laws of all 
 Asiatic and European nations ; but they held per- 
 sons of their own nation in bondage only as legal 
 persons capable of rights, while under an obligation 
 to serve. Cobb's Hist. Sketch, ch. 1. When the 
 serfdom of feudal times was first established, the 
 two conditions were coexistent in every part of Eu- 
 rope (.ibid. ch. 7), though afterwards the bondage of 
 serfdom was for a long period the only form known 
 there until the revival of chattel slavery, by the 
 introduction of negro slaves Into European com- 
 merce, in the sixteenth century. Every villein un- 
 der the English law was clearly a legal person capa- 
 ble of some legal rights, whatever might be the na- 
 ture of his services. Co. Litt_ 123 b; Coke, 2d Inst 
 4, 45. But at the first recognition of negro slavery 
 in the jurisprudence of England and her colonies, 
 the slave was clearly a natural person, known to 
 the law as an object of possession or property for 
 others, having no legal personality, who therefore, 
 in many legal respects, resembled a thing or chattel. 
 It is true that the moral responsibility of the slave 
 and the duty of others to treat him as an accounta- 
 ble human being and not as a domestic animal 
 were always more or less clearly recognized in the 
 criminal jurisprudence. There has always been in 
 his condition a mingling of the qualities of person 
 and of thing, which has led to many legal contradic- 
 tions. But while no rights or obligations, in rela- 
 tions between him and other natural persons such 
 as might'be judicially enforced by or against him, 
 were attributed to him, there was a propriety in 
 distinguishing the condition as chattel slavery, even 
 though the term itself implies that there is an 
 essential distinction between such a person and nat- 
 ural things, of which it seems absurd to say that 
 they are either free or not free. The phrases instar 
 rerum, tanquam .bona, are aptly used by older writ- 
 ers. The bondage of the villein could not be thus 
 characterized; and there Is no historical connection 
 between the principles which determined the exist- 
 ence of the one and those which sanctioned the other. 
 The law of English villenage furnished no rules ap- 
 plicable to negro slavery in America. Com. v. Tur- 
 ner, 5 Rand. (Va.) 680, 683; Fable v. Brown, 2 Hill, 
 Ch. (S. C.) 390 ; Neal v. Farmer, 9 Ga. 661 ; 1 Hurd, 
 Law of Freedom and Bondage, cc. 4, 5. Slavery in 
 the colonies was entirely distinct from the condition 
 of those white persons who were held to service for 
 years, which Was involuntary in its continuance, 
 though founded in most instances on contract. 
 These persons had legal rights, not only in respect 
 to the community at large, but also in respect to 
 the person to whom they owed service. 
 
 In the American slaveholding states before the 
 Civil War, the moral personality of those held in 
 the customary slavery was recognized by jurispru- 
 dence and statute to an extent which makes it diffi- 
 cult to say whether, there, slaves were by law re- 
 garded as things and not legal persons (though sub- 
 ject to the laws which regulate the title and trans- 
 fer of property), or whether they were still things 
 and property in the same sense and degree in which
 
 BONDAGE 
 
 378 
 
 BONDED WAREHOUSE 
 
 they were so formerly. Compare laws and authori- 
 ties in Cobb's Law of Negro Slavery, ch. lv., v. 
 
 The Emancipation Proclamation (January 1, 1863), 
 and the amendments to the constitution of the Unit- 
 ed States, have rendered the views entertained on 
 the subject purely speculative, as slavery has ceas- 
 ed to exist 
 
 The Emancipation Proclamation was issued by 
 President Lincoln as commander-in-chief of the 
 army and navy of the United States during the ex- 
 istence of armed rebellion, and by its terms pur- 
 ported to be nothing more than "a fit and necessary 
 war measure for suppressing said rebellion." By 
 virtue of this power, it was therein ordered and de- 
 clared that all persons held as slaves within certain 
 designated states, and parts of states, were and 
 henceforward should be free, and that the executive 
 government of the United States, including the 
 military and naval authorities thereof, should rec- 
 ognize and maintain the freedom of said persons. 
 The proclamation was not meant to apply to those 
 states or parts of states not in rebellion. 
 
 The constitutionality of this measure has been a 
 subject of some doubt, the prevailing opinion being 
 that it could be supported as a war measure alone, 
 and apply where the slaveholding territory was ac- 
 tually subdued by the military power of the United 
 States ; Slaughter-House Cases, 16 Wall. (U. S.) 68, 
 21 L. Ed. .394; In South Carolina, it has been held 
 that slavery was not abolished by the Emancipation 
 Proclamation, and the same view was sustained in 
 Texas; Pickett v. Wilkins, 13 Rich. Eq. (S. C.) 366; 
 Hall v. Keese, 31 Tex. 504. In Louisiana, Posey v. 
 Driggs, 20 La. Ann. 199, and Alabama, Morgan v. 
 Nelson, 43 Ala. 592, the opposite view is held. But 
 see McElvain v. Mudd, 44 Ala. 70, 4 Am. Rep. 106. 
 In Mississippi the question of the time when slav- 
 ery was abolished is left open ; Herrod v. Davis, 43 
 Miss. 102. 
 
 The 13th Amendment to the constitution, pro- 
 claimed Dec. 18, 1865, was the definite settlement of 
 the question of slavery in the United States. It 
 declares, "1. Neither slavery nor Involuntary servi- 
 tude, except as a punishment for crime, whereof the 
 party shall have been duly convicted, shall exist 
 within the United States, or any place subject to its 
 jurisdiction. 2. Congress shall have power to en- 
 force this article by appropriate legislation." See 
 Slave ; Manumission. 
 
 BONDED WAREHOUSE. A warehouse 
 for the storage of goods, wares and merchan- 
 dise, deposited pursuant to law, held under 
 bond for the payment of duties or revenue 
 taxes. 
 
 Under the act authorizing persons to keep 
 a warehouse for the storage of dutiable 
 goods, it was held that no person has any 
 right to do so unless appointed by the Secre- 
 tary of the Treasury, and such appointment 
 can be revoked at pleasure; Corkle v. Max- 
 well, Fed. Cas. No. 3,231. Goods in a bonded 
 warehouse under the revenue laws, are in 
 possession of the sovereign and no lien can 
 be obtained thereon by a creditor ; In re 
 Johnston, Fed. Cas. No. 7,424. The statutes 
 regulating bonded warehouses, usually pro- 
 vide that goods deposited therein may be 
 withdrawn for consumption within one year 
 of the date of original importation, on pay- 
 ment of duties and charges ; Allen v. Jones, 
 24 Fed. 13. The Tariff Act of 1909 makes 
 the period of withdrawal three years ; sec. 
 20. The goods cannot be transferred from 
 the original packages for safety or preserva- 
 tion while in the warehouse, unless entered 
 for exportation and legally removed from the 
 warehouse into the possession of the import- 
 
 er; W. H. Thomas & Son Co. v. Barnett, 
 144 Fed. 338, 75 C. C. A. 300. The expense 
 of storage of imported merchandise pending 
 inspection and analysis under the Pure Food 
 Law should be borne by the government and 
 not by the importer ; U. S. v. Acker, Merrall 
 & Condit, 133 Fed. 842. The Tariff Act of 
 1913 re-enacts the former law, with an 
 amendment permitting the manufacture of 
 cigars in a bonded warehouse. Ore and met- 
 al smelting and refining works may be des- 
 ignated as bonded warehouses. 
 
 BONIS N0N AMOVENDIS. A writ ad- 
 dressed to the sheriff, when a writ of error 
 has been brought, commanding that the per- 
 son against whom judgment has been obtain- 
 ed be not suffered to remove his goods till 
 the error be tried and determined. Reg. 
 Orig. 131. 
 
 B0NITARIAN OWNERSHIP. DOMINI- 
 UM BONITARIUM. The term in bonis ha- 
 bere was used to express an ownership which 
 was practically absolute, because it was pro- 
 tected by the authority of the praetor in cas- 
 es where, wishing to give all the advantages 
 of ownership, he was prevented by the civil 
 law from giving the legal (Quiritarian) do- 
 minium. 
 
 BONO ET MALO. A special writ of jail 
 delivery, which formerly issued of course for 
 each particular prisoner. 4 Bla. Com. 270. 
 
 BONUS. A premium paid to a grantor or 
 vendor. 
 
 A sum exacted by the state from a cor- 
 poration as a consideration for granting a 
 charter; in such case it is clearly distin- 
 guished from a tax; Baltimore & O. R. Co. 
 v. Maryland, 21 Wall. (U. S.) 456, 22 L. Ed. 
 678 ; Com. v. Transp. Co., 107 Pa. 112. 
 
 A consideration given for what is received. 
 Extraordinary profit accruing in the opera- 
 tion of a stock company or private corpora- 
 tion. 10 Ves. Ch. 185; 7 Sim. 634; 2 Spence, 
 Eq. Jur. 569. 
 
 An additional premium paid for the use 
 of money beyond the legal interest. Mechan- 
 ics' & Working Men's Mut. Sav. Bank & Bldg. 
 Ass'n of New Haven v. Wilcox, 24 Conn. 147. 
 It it not a gift or gratuity, but is paid for 
 some services or consideration and is in 
 addition to what would ordinarily be given ; 
 Kenicott v. Wayne County, 16 Wall. (U. S.) 
 452, 21 L. Ed. 319. 
 
 In its original sense of good the word was for- 
 merly much used. Thus, a jury was to be composed 
 of twelve good men (ooni homines) ; 3 Bla. Com. 
 349; bonus judex (a good judge). Co. Litt. 246. 
 
 BOOK. A general name given to every 
 literary composition which is printed, but 
 appropriately to a printed composition bound 
 in a volume. See Copyright. 
 
 A manuscript may, under some circum- 
 stances, be regarded as a "book;" In re 
 Beecher's Estate, 17 Pa. C C. R. 161 ; 8L.J. 
 Ch. 105.
 
 BOOK-LAND 
 
 379 
 
 BOOKS OF SCI 
 
 BOOK-LAND. In English Law. Land, 
 also called charter-land, which was held by 
 deed under certain rents and fee services, 
 ai?d differed in nothing from free socage 
 land. 2 Bla. Com. 90. See 2 Speluian, Eng- 
 lish Works 233, tit. Of Ancient Deeds and 
 Charters; Boc-Land. 
 
 Lai?d held by book, by a royal and eccle- 
 siastical priviiegium. Maitland, Domesday 
 and Beyond 257. The church introduced the 
 custom of conveying land by written docu- 
 ments. The "boc" or written charter was 
 ecclesiastical in its origin. It was used by 
 the king, the church or very great men. The 
 practice never became common. 2' Holdsw. 
 Hist. E. L. 14, 60. 
 
 BOOK OF ACCOUNT. See Original En- 
 try, Books of. 
 
 BOOK OF ACTS. The records of a sur- 
 rogate's court. 
 
 BOOK OF ADIOURNAL. In Scotch Law. 
 The records of the court of justiciary. 
 
 BOOK OF RATES. An account or enu- 
 meration of the duties or tariffs authorized 
 by parliament. 1 Bla. Com. 316. 
 
 BOOK OF RESPONSES. In Scotch Law. 
 An account which the director of the Chan- 
 cery keeps particularly to note a seizure 
 when he gives an order to the sheriff in that 
 part to give it to an heir whose service has 
 been returned to him. Wharton, Lex. 
 
 BOOKS OF ORIGINAL ENTRIES. See 
 Original Entry, Books of. 
 
 BOOKS OF SCIENCE. Scientific books, 
 even of received authority, are not admissi- 
 ble in evidence before a jury ; 5 C. & P. 73; 
 Com. v. Sturtivant, 117 Mass. 122, 19 Am. 
 Rep. 401; Harris v. R. Co., 3 Bosw. (N. Y.) 
 18; 2 Carl. G17 ; 1 Greenl. Ev. § 440, a; ex- 
 cept to contradict an expert who bases his 
 opinion upon them; City of Bloomington v. 
 Shrock, 110 111. 219, 51 Am. Rep. 678 ; stand- 
 ard medical works with explanation of tech- 
 nicalities are admissihle ; Carter v. State, 2 
 Ind. 617 ; Stoudenmeir v. Williamson, 29 Ala. 
 558. Counsel may read such books to the 
 jury in their argument; State v. Hoyt, 46 
 Conn. 330 (two judges dissenting); contra, 
 Com. v. Wilson, 1 Gray (Mass.) 337; Ord- 
 way v. Haynes, 50 N. H. 159 ; People v. An- 
 derson, 44 Cal. 65; Gale v. Rector, 5 111. 
 App. 481. In Wade v. De Witt, 20 Tex. 398 
 and Luning v. State, 1 Chand. (Wis.) 178, 
 it was held that the admission of such evi- 
 dence was in the discretion of the court. See 
 26 Am. Law Rev. 390; Wade v. De Witt, 20 
 Tex. 39S; Washburn v. Cuddihy, 8 Gray 
 (Mass.) 430; Gallagher v. Ry. Co., 67 Cal. 
 13, 6 Pac. 869, 51 Am. Rep. 6S0, n. 
 
 The law of foreign countries may be prov- 
 ed by printed books of statutes, reports, and 
 text writers, as well as by the sworn testi- 
 mony of experts ; so held, in a learned opin- 
 ion by Lowell, J., in the U. S. C. C. The 
 Pawashick, 2 Low. 142, Fed. Cas. No. 10,851. 
 
 See Farmers' Loan & Trust Co. v. Telegraph 
 Co., 44 Hun (N. Y.) 400; Bollinger v. 
 lagher, 163 Pa. 245, 29 Atl. 751, 43 Am. 
 Rep. 791; contra, but without authority, 
 Dickerson v. Matheson, 50 Fed. 73. A scien- 
 tific witness may testify to the written for- 
 eign law, with or without the text of the law 
 before him; 11 CI. & F. 85, 114; 8 Q. B. 208. 
 It has been said that foreign law must al- 
 ways be proved by an expert; 1 Greenl. Ev. 
 486, 488; but see Wist). IT. Int. Law (3d 
 ed.) § 356; but the court may in its discre- 
 tion require the printed book of law to be 
 produced in order to corroborate the witness; 
 Pierce v. Indseth, 106 U. S. 546, 1 Sup. Ct. 
 418, 27 L. Ed. 254. 
 
 See Foreign Law ; Experts. 
 
 BOOKS, PRODUCTION OF. See Produc- 
 tion of Books and Documents. 
 
 BOOM. An enclosure formed upon the 
 surface of a stream or other body of water, 
 by means of spars, for the purpose of collect- 
 ing or storing logs or timber. 10 Am. & Eng. 
 Corp. Cas. 399. See Logs. 
 
 BOOM COMPANY. A company formed for 
 the purpose of improving streams for the 
 floating of logs, by means of booms and other 
 contrivances, and for the purpose of running, 
 driving, booming, and rafting logs. 10 Am. 
 & Eng. Corp. Cas. 399; A. & E. Encyc. 
 
 BO ON- DAYS. Certain days in the year on 
 which copyhold tenants were bound to per- 
 form certain services for the lord. Called, 
 also, due-days. Whishaw. 
 
 BOOTY. The capture of personal proper- 
 ty by a public enemy on land, iu contra- 
 distinction to prize, which is a capture of 
 such property by such an enemy on the sea. 
 
 After booty has been in complete pos- 
 session of the enemy for twenty-four hours, 
 it becomes absolutely his, without any right 
 of postliminy in favor of the original owner, 
 particularly when it has passed bona fide 
 into the hands of a neutral ; 1 Kent 110. 
 The right to booty belongs to the sovereign; 
 but sometimes the right of the sovereign, or 
 of the public, is transferred to the soldiers, 
 to encourage them ; Pothier, Droit de Prop- 
 ri6te~, p. 1, c. 2, a. 1, § 2; 2 BurL Nat & PoL 
 Law, pt. 4, c. 7, n. 12. 
 
 BORDAGE. A species of base tenure by 
 which bordlands were held. The tenants 
 were called bordarii. These bordarll would 
 seem to have been those tenants of a less 
 servile condition, who had a cottage and land 
 assigned to them on condition of supplying 
 their lord with poultry, eggs, and such small 
 matters for his table. Whishaw; CowelL 
 
 BORDEREAU. In French law, a detailed 
 statement of account; a summary of an in- 
 strument. 
 
 BORDLANDS. The demesnes which the 
 lords keep In their hands for the mainte- 
 nance of their board or table. CowelL
 
 BORDLODE 
 
 3S0 
 
 BOROUGH ENGLISH 
 
 BORDLODE. The rent or quantity of 
 food which the bordarii paid for their lands. 
 Cowell. 
 
 B R G ( Sax. ) . Suretyship. 
 Borgbriche (violation of a pledge or suretyship) 
 was a fine imposed on the borg for property stolen 
 within Its limits. 
 
 A tithing in which each one became a 
 surety for the others for their good behav- 
 ior. Spelinan, Gloss. ; Cowell ; 1 Bla. Com. 
 115. 
 
 BORN. It is now settled according to the 
 dictates of common sense and humanity, that 
 a child en ventre sa mdre for all purposes 
 for his own benefit,- is considered as absolute- 
 ly born; Swift v. Duffield, 5 S. & R. (Pa.) 
 40. 
 
 If an infant is born dead or at such an 
 early stage of pregnancy as to be unable to 
 live, it is to be considered as never born; 
 Marsellis v. Thalhimer, 2 Paige, Ch. (N. 
 Y.) 35. 
 
 See Bibth ; En Ventre Sa Mebe. 
 
 BOROUGH. A town; a town of note or 
 importance. Cowell. An ancient town. Lit- 
 tleton § 164. A town which sends burgesses 
 to parliament, whether corporate or not. 1 
 Bla. Com. 115 ; Whishaw. 
 
 A corporate town that is not a city. 1 M. 
 & G. 1 ; Cowell. In its more modern English 
 acceptation, it denotes a town or city or- 
 ganized for purposes of government. 3 Steph. 
 Com. (11th ed.) 33. See Town. 
 
 It is impossible to reconcile the meanings of this 
 word given by the various authors cited, except up- 
 on the supposition of a change of requirements nec- 
 essary to constitute a borough at different periods. 
 The only essential circumstance which underlies all 
 the meanings given would seem to be that of a num- 
 ber of citizens bound together for purposes of joint 
 action, varying in the different boroughs, but being 
 either for representation or for municipal govern- 
 ment. 
 
 Many causes, In no two cases quite alike, went to 
 make up the peculiar community which the 13th 
 Century recognized as a borough. The borough 
 community, though a different variety, is not a 
 different genus from that of the other communities 
 with which England of the early Middle Ages was 
 peopled; 2 Holdsw. Hist. E. L. 257. See Burh; 
 Brit. Borough Charters 1042-1216, by Bolland ; Bat- 
 teson, Borough Customs. 
 
 In American Law. In Pennsylvania, the 
 term denotes a political division, organized 
 for municipal purposes ; and the same is true 
 of Connecticut and New Jersey. Sav. Bor. 
 L 4; Southport v. Ogden, 23 Conn. 128; see 
 also Brown v. State, 18 Ohio St. 496; 1 Dill. 
 Mun. Corp. § 41, n. 
 
 In Scotch Law. A corporation erected by 
 charter from the crown. Bell, Diet. 
 
 BOROUGH COURTS. In English Law. 
 
 Courts of limited jurisdiction held in par- 
 ticular districts by prescription, charter, or 
 act of parliament, for the prosecution of pet- 
 ty suits. 19 Geo. III. c. 70; 3 Will. IV. c. 
 74 ; 3 Bla. Com. 80. See Courts of England. 
 
 BOROUGH ENGLISH. A custom preva- 
 lent in some parts of England, by which the 
 
 youngest son inherits the estate in preference 
 to his older brothers. 1 Bla. Com. 75. 
 
 The custom is said by Blackstone to have been de- 
 rived from the Saxons, and to have been so called la 
 distinction from the Norman rule of descent ; 2 Bla. 
 Com. 83. A reason for the custom is found In the 
 fact that the elder children were usually provided 
 for during the life of the parent as they grew up, 
 and removed, while the younger son usually re- 
 mained. See, also, Bacon, Abr. ; Comyns, Dig. Bor- 
 ough English; Termes de la Ley ; Cowell. The cus- 
 tom applies to socage lands; 2 Bla. Com. 83. See 
 Burgage. 
 
 BORROW. The word is often used in the 
 sense of returning the thing borrowed in 
 specie, as to borrow a book, or any other 
 thing to be returned again. But it is evi- 
 dent where money is borrowed the identical 
 money loaned is not to be returned, because 
 if this is so, the borrower would derive no 
 benefit from the loan. In a broad sense it 
 means a contract for the use of money. 
 State v. School Dist. No. 24, 13 Neb. 88, 12 
 N. W. 812 ; Kent v. Min. Co., 78 N. T. 177. 
 
 BORROWER. He to whom a thing is lent 
 at his request. 
 
 In general he has the right to use the 
 thing borrowed, himself, during the time and 
 for the purpose intended between the par- 
 ties. He is bound to take extraordinary care 
 of the thing borrowed ; to use it according to 
 the intention of the lender; to restore it in 
 proper condition at the proper time; Story, 
 Bailm. § 268 ; Edw. Bailm. 135 ; 2 Kent 446. 
 See Bailment. 
 
 BOSCAGE. That food which wood and 
 trees yield to cattle. 
 
 To be quit of boscage Is to be discharged of pay- 
 ing any duty of wind-fall wood in forest ; Whi- 
 shaw; Manwood, For. Laws. 
 
 BOSCUS. Wood growing; wood; both 
 high wood or trees, and underwood or cop- 
 pice. The high wood is properly called 
 saltus. Spelman, Gloss. ; Co. Litt. 5 a. 
 
 BOTE, BOT. A recompense or compensa- 
 tion. The common word to boot comes from 
 this word. Cowell. The term is applied as 
 well to making repairs in houses, bridges, 
 etc., as to making a recompense for slaying 
 a man or stealing property. House bote, ma- 
 terials which may be taken to repair a house; 
 hedge bote, to repair hedges; brig bote, to 
 repair bridges; man bote, compensation to 
 be paid by a murderer. It was this system 
 of bot and wer, resting upon blood-feud and 
 upon outlawry, which was the ground work 
 of the Anglo-Saxon criminal law ; 2 Holdsw. 
 Hist. E. L. 36. 
 
 Bote is known to the English law also un- 
 der the name of Estover; 1 Washb. R. P. 
 *99 ; 2 Bla. Com. 35. The tenant for life was 
 entitled to take reasonable "botes" and "es- 
 tovers," without committing waste. 3 
 Holdsw. Hist. E. L 105. 
 
 BOTTOMRY. A contract in the nature of 
 a mortgage, by which the owner of a ship, 
 or the master, as his agent, borrows money 
 for the use of the ship, and for a specified
 
 BOTTOMRY 
 
 381 
 
 BOTTOMRY 
 
 voyage, or for a definite period, pledges the 
 ship (or the keel or bottom of the ship, para 
 prototo) as a security for its repayment, 
 with maritime or extraordinary interest on 
 account of the marine risks to be borne by 
 the lender; it being stipulated that if the 
 ship he lost in the course of the specified 
 voyage, or during the limited time by any of 
 the perils enumerated in the contract, the 
 lender shall also lose his money. 2 Hagg. 
 Adm. 48 ; 2 Sumn. 157. See Davies & Co. v. 
 Soelberg, 24 Wash. 308, 64 Pac. 540. 
 
 Bottomry differs materially from an ordinary 
 loan. Upon a simple loan the money is wholly at 
 the risk of the borrower, and must be repaid at all 
 events. But in bottomry, the money, to the extent 
 of the enumerated perils, is at the risk of the lender 
 during the voyage on which it is loaned, or for the 
 period specified. Upon an ordinary loan only the 
 usual legal rate of Interest can be reserved ; but 
 upon bottomry and respondentia loans any rate of 
 Interest, not grossly extortionate, which may be 
 agreed upon, may be legally contracted for. 
 
 When the loan Is not made upon the ship, but on 
 the goods laden on board and which are to be sold 
 or exchanged in the course of the voyage, the bor- 
 rower's personal responsibility is deemed the prin- 
 cipal security for the performance of the contract, 
 which is therefore called respondentia, which see. 
 And in a loan upon respondentia the lender must be 
 paid his principal and interest though the ship per- 
 ish, provided the goods are saved. In most other 
 respects the contracts of bottomry and of respon- 
 dentia stand substantially upon the same footing. 
 See further, 10 Jur. 845 ; 4 Thornt. 285, 512 ; 2 W. 
 Rob. Adm. 83-85; Thompson v. Perkins, 3 Mas. 225, 
 Fed. Cas. No. 13,972. 
 
 Bottomry bonds may be given by a master 
 appointed by the charterers of the ship, by 
 masters necessarily substituted or appointed 
 abroad, or by the mate who has become 
 master, as liceres necessarius, on the death 
 of the appointed master. 1 Dod. 278; 3 
 Hagg. Adm. 18 ; The Fortitude, 3 Sumn. 246, 
 Fed. Cas. No. 4,953. But while in a port in 
 which the owners, or one of them, or a recog- 
 nized agent of the owners, reside, the master, 
 as such, has no authority to make contracts 
 affecting the ship, and a bottomry bond exe- 
 cuted under such circumstances is void ; 
 Lavinia v. Barclay, 1 Wash. C. C. 49, Fed. 
 Cas. No. 8,125; 22 Eng. L, & Eq. 623. Unless, 
 it has been held in an English case, he has ho 
 means of communicating with the owners ; 
 1 Dod. 273. See 7 Moore's P. C. C. 398. 
 The master has authority to hypothecate the 
 vessel only in a foreign port ; but in the 
 jurisprudence of the United States all mari- 
 time ports, other than those of the state 
 where the vessel belongs, are foreign to the 
 vessel ; Burke v. Rich, 1 Cliff. 308, Fed. Cas. 
 No. 2,1G1; The William & Emmeline, 1 
 Blatch. & H. 66, Fed. Cas. No. 17.687; The 
 Hilarity, 1 Blatch. & H. 90, Fed. Cas. No. 6,- 
 480. 
 
 The owner of the vessel may borrow upon 
 bottomry in the vessel's home port, and 
 •whether she is in port or at sea; and it is 
 not necessary to the validity of a bond made 
 by the owner that the money borrowed 
 should be advanced for the necessities of 
 the vessel or her voyage; The Draco, 2 
 
 Sumn. 157, Fed. Cas. No. 4.057; The Mary. 
 
 1 Paine, 671, Fed. Cas. No 2 Dod 
 
 R. 461. But it may well be doubted, whether 
 when money is thus borrowed by the <■ 
 for purposes' other than 
 of the ship, and a bottomry bond in the 
 usual form is given, a court of admiralty 
 has jurisdiction to enforce the lien; Bee 348. 
 As a contract made and to be performed on 
 land, and having no necessary connection 
 with the business of navigation, it is 
 able that it would not now be deemed a mar- 
 itime contract, but would take effect ami be 
 enforced as a common-law mortgage. 
 Flurry v. John & Alice. 1 Wash. C. G 
 Fed. Cas. No. 6,923; Shrewsbury v. Two 
 Friends, Bee, 433, Fed. Cas. No. 12,81!> : I 
 Swab. 269. But see The Mary, 1 Paine 671. 
 Fed. Cas. No. 9,187; Rucher v. Conyngham, 
 
 2 Pet. Adm. 295, Fed. Cas. No. 12,106. 
 
 If the bond be executed by the master of 
 the vessel, it will be upheld and enforced 
 only upon proof that there was a necessity 
 for the loan, and also for pledging the credit 
 of the ship ; as the authority of the master 
 to borrow money on the credit of the vessel 
 rests upon the necessity of the case, and only 
 exists under such circumstances of necessity 
 as would induce a prudent owner to hypothe- 
 cate his ship to raise money for her use; 3 
 Hagg. Adm. 66, 74; The Fortitude. 3 Sumn. 
 228, Fed. Cas. No. 4,953; The Aurora, 1 
 Wheat. (U. S.) 96, 4 L. Ed. 45; The Mary, 1 
 Paine, 671, Fed. Cas. No. 9,187; Tunno v. 
 The Mary, Bee, 120, Fed. Cas. No. 14.237. 
 His authority is not confined, however, to 
 such repairs and supplies as are absolutely 
 and indispensably necessary, but includes 
 also all such as are reasonably fit and proper 
 for the ship and the voyage ; The Lulu, 10 
 Wall. (U. S.) 192, 19 L. Ed. 906; The Emily 
 Souder, 17 Wall. (U. S.) 666, 21 L. Ed. 683. 
 
 If the master could have obtained the 
 necessary supplies or funds on the personal 
 credit of himself or of his owner, ami this 
 fact was known to the lender, the bond will 
 be held invalid ; The Fortitude, 3 Sumn. 257, 
 Fed. Cas. No. 4,953. And if the master bor- 
 rows on bottomry without apparent neces- 
 sity, or when the owner is known to be acces- 
 sible enough to be consulted upon the emer- 
 gency, the bond is void, and the lender can 
 look only to the personal responsibility of 
 the master; 3 W. Rob. Adm. 243, •2>;r>. For 
 the fact that the advances were necessary, 
 and were made on the security of the 
 is not, in any instance, to be presumed: Wal- 
 den v. Chamberlain, 3 Wash. C. C. 290, Fed. 
 Cas. No. 17,055. And moneys advanced to 
 the master without Inquiry as to the neces- 
 sity of the advance, or seeing to the proper 
 application, have been disallowed; 33 Eng. 
 I.. & Eq. i''"-. It may be given after the 
 advances have been made, in pursuance of 
 a prior agreement ; The Virgin v. Vyfhius, 
 8 Pet. (U. S.) 538, 8 L. Ed. 1,030. If given 
 for a larger sum than the actual advances,
 
 BOTTOMRY 
 
 382 
 
 BOTTOMRY 
 
 in fraud of the owners or underwriters, it 
 vitiates the bond and avoids the bottomry 
 lien even for the sum actually advanced; 
 Oarrington v. The Ann C. Pratt, 18 How. 
 (U. S.) 63, 15 L. Ed. 267; The Ann C. Pratt, 
 1 Curt. C. C. 341, Fed. Cas. No. 409. 
 
 The contract of bottomry is usually in 
 form a bond (termed a bottomry bond) con- 
 ditioned for the repayment of the mouey 
 lent, with the interest agreed upon, if the 
 ship safely accomplishes the specified voy- 
 age or completes in safety the period limited 
 by the contract; The Draco, 2 Sumn. 157, 
 Fed. Cas. No. 4,057. See The Lykus, 36 Fed. 
 919. Sometimes it is in that of a bill of sale, 
 and sometimes in a different shape; but it 
 should always specify the principal lent and 
 the rate of maritime interest agreed upon; 
 the names of the lender and borrower; the 
 names of the vessel and of her master; the 
 subject on which the loan is effected, wheth- 
 er of the ship alone, or of the ship and 
 freight ; whether the loan is for an entire or 
 specific voyage or for a limited period, and 
 for what voyage or for what space of time; 
 the risks the lender is contented to bear ; and 
 the period of repayment. Where the master 
 of a ship in a foreign port gives a draft on 
 the owners for money- advanced for wages 
 and supplies, it was held to be a'n abbreviated 
 form of bottomry ; Hanschell v. Swan, 23 
 Misc. 304, 51 N. Y. Supp. 42. It is negotia- 
 ble; 5 C. Rob. Adm. 102. Where the bond 
 covers "the vessel, her tackle, apparel, fur- 
 niture, and freight as per* charter-party," 
 demurrage previously earned is not freight; 
 Brett v. Van Praag, 157 Mass. 132, 31 N. E. 
 761. It cannot be given in connection with 
 personal security by the owner of the vessel 
 to pay the debt regardless of the return of 
 the vessel to port; Theo. H. Davies & Co. v. 
 Soelberg, 24 Wash. 308, 64 Pac. 540. 
 
 In case a highly extortionate or wholly 
 unjustifiable rate of interest be stipulated 
 for in a bottomry bond, courts of admiralty 
 will enforce the bond for only the amount 
 fairly due, and will not allow the lender to 
 recover an unconscionable rate of interest. 
 But in mitigating an exorbitant rate of in- 
 terest they will proceed with great caution. 
 For the course pursued where the amount 
 of interest was accidentally omitted, see 1 
 Swab. 240. Fraud will induce a court of 
 equity to set aside a bottomry bond, in Eng- 
 land ; 8 Sim. 358 ; 3 M. & C. 451, 453, n. 
 
 Where the express contract of bottomry 
 is void for fraud, no recovery can be had, 
 on the ground of an implied contract and 
 lien of advances actually made; The Ann C. 
 Pratt, 1 Curt. C. C. 340, Fed. Cas. No. 409; 
 Carrington v. The Ann C. Pratt, 18 How. (U. 
 S.) 63, 15 L. Ed. 267. But a bottomry bond 
 may be good in part and bad in part; The 
 Packet, 3 Mas. 255, Fed. Cas. No. 10,654; 
 Furniss v. The Magoun, Olc. 55, Fed. Cas. 
 No. 5,163. And it has been held in England 
 that fraud of the owner or mortgagor of a 
 
 vessel, which might render the voyage illegal, 
 does not invalidate a bottomry bond to a 
 bona fide lender ; L. R. 1 Adm. & Ec. 13. 
 
 Not only the ship, her tackle, apparel, and 
 furniture (and the freight, if specifically 
 pledged), are liable for the debt in case the 
 voyage or period is completed in safety, but 
 the borrower is also, in that event, person- 
 ally responsible. See 2 Bla. Com. 457 ; Brett 
 v. Van Praag, 157 Mass. 132, 31 N. E. 761. 
 It binds not only the ship but her entire 
 earnings, as against prior bottomries, mort- 
 gages and other loans to the owner or mas- 
 ter; The Anastasia, Fed. Cas. No. 347. But 
 only, it would seem, in cases in which such 
 responsibility has been especially made a 
 condition of the bond; Kelly v. Cushing, 48 
 Barb. (N. Y.) 269. 
 
 The borrower on bottomry is affected by 
 the doctrines of seaworthiness and devia- 
 tion; 3 Kent 360; and if, before or after the 
 risk on the bottomry bond has commenced, 
 the voyage or adventure is voluntarily 
 broken up by the borrower, in any manner 
 whatsoever, whether by a voluntary aban- 
 donment of the voyage or adventure, or by a 
 deviation or otherwise, the maritime risks 
 terminate, and the bond becomes presently 
 payable; The Draco, 2 Sumn. 157, Fed. Cas. 
 No. 4,057 ; 3 Kent 360. But maritime inter- 
 est is not recoverable if the risk has not com- 
 menced. 
 
 But in England and America the estab- 
 lished doctrine is that the owners are not 
 personally liable, except to the extent of the 
 fund pledged which has come into their 
 hands; The Virgin v. Vyfhius, 8 Pet. (U. 
 S.) 538, 554, 8 L. Ed. 1036; 1 Hagg. Adm. 1, 
 13. If the ship or cargo be lost, not by the 
 enumerated perils of the sea, but by the 
 fraud or fault of the borrower or master, 
 the hypothecation bond is forfeited and must 
 be paid. 
 
 The risks assumed by the lender are usual- 
 ly such as are enumerated in the ordinary 
 policies of marine insurance. If the ship be 
 wholly lost in consequence of these risks, the 
 lender, as before stated, loses his money; but 
 the doctrine of constructive total loss does 
 not apply to bottomry contracts ; 1 Maule & 
 S. 30; Pope v. Nickerson, 3 Sto. 465, Fed. 
 Cas. No. 11,274. See 13 C. B. 442. 
 
 It is usual in bottomry bonds to provide 
 that, in case of damage to the ship (not 
 amounting to a total loss) by any of the 
 enumerated perils, the lender shall bear his 
 proportion of the loss, viz.: an amount 
 which will bear the same proportion to the 
 whole damage that the amount lent bears 
 to the whole value of the vessel prior to the 
 damage. Unless the bond contains an ex- 
 press stipulation to that effect, the lender is 
 not entitled to take possession of the ship 
 pledged, even when the debt becomes due ; 
 but he may enforce payment of the debt by 
 a proceeding in rem, in the admiralty, 
 against the ship; under which she may be
 
 BOTTOMRY 
 
 383 
 
 BOTTOMRY 
 
 arrested, and, In pursuance of a decree of 
 the court, ultimately sold for the payment 
 of the amount due. And this is the ordi- 
 nary and appropriate remedy of the lender 
 upon bottomry ; though lie has also, as a 
 general rule, his remedy by action of cove- 
 nant or debt at common law upon the bond; 
 Tyl. Mar. Loans 782. It was held in Mis- 
 sissippi that state legislatures have no au- 
 thority to create maritime liens, or confer ju- 
 risdiction on state courts to enforce such liens 
 by proceedings in rem. Such jurisdiction is 
 exclusively in the courts of admiralty of 
 the United States; Murphey v. Trade Co., 
 49 Ala. 43G; The Belfast, 7 Wall. (U. 
 S.) 624, 19 L. Ed. 2G6. 
 
 In entering a decree in admiralty upon a 
 bottomry bond, the true rule is to consider 
 the sum lent and the maritime interest as 
 the principal, and to allow common interest 
 on that sum from the time such principal 
 became due; The Packet, 3 Mas. 255, Fed. 
 Cas. No. 10,654. Where money is necessarily 
 taken up on bottomry to defray the expenses 
 of repairing a partial loss, against which the 
 vessel is insured, the underwriter (although 
 he has nothing to do with bottomry bond) is 
 liable to pay his share of the extra expense 
 of obtaining the money, in that mode, for the 
 payment of such expenses; Braalie v. In- 
 surance Co., 12 Pet. (U. S.) 378, 9 L. Ed. 
 1123. 
 
 The lien or privilege of a bottomry bond 
 holder, like all other maritime liens, has, 
 ordinarily, preference of all prior and subse- 
 quent common-law and statutory liens, and 
 binds all prior interests centering in the 
 ship; Blaine v. The Charles Carter, 4 Cra. 
 (U. S.) 328, 2 L. Ed. 636. It holds good (if 
 reasonable diligence be exercised in enforc- 
 ing it) as against subsequent purchasers and 
 common-law incumbrancers; but the lien of a 
 bottomry bond is not indelible, and, like other 
 admiralty liens, may be lost by unreasonable 
 delay in asserting it, if the rights of pur- 
 chasers or incumbrancers have intervened ; 
 The St. Jago De Cuba, 9 Wheat. (U. S.) 409, 
 6 L. Ed. 122; 2 W. & M. 48; 1 Swab. 269; 1 
 Cliff. 308 ; 5 Rob. Adm. 94. The lien extends 
 to the fund recoverable for the ship's tortious 
 destruction; Miller v. O'Brien, 59 Fed. 621. 
 The rules under which courts of admiralty 
 marshal assets claimed to be applicable to 
 the payment of bottomry and other maritime 
 liens and of common-law and statutory liens, 
 will be more properly and fully considered 
 in the article Maritime Liens, which see. 
 But it is proper here to state that, as be- 
 tween the holders of two bottomry bonds 
 upon the same vessel in respect to different 
 voyages, the later one, as a general rule, is 
 entitled to priority of payment out of the 
 proceeds of the vessel; 1 Dod. 201; Furniss 
 v. The Magoun, Olc. 55, Fed. Cas. No. 5,163. 
 Seamen have a lien, prior to that of the 
 holder of the bottomry bond, for their wages 
 for the voyage upon which the bottomry is 
 
 founded, or any subsequent voyage; but the 
 owners are also personally liable for such 
 wages, and if the bottomry-bond holder is 
 compelled to discharge the seamen's lien, he 
 has a resulting right to compensation over 
 against the owners, and has been held to 
 have a lien upon the proceeds of the ship for 
 his reimbursement; The Virgin v. Vyfhlus, 
 8 Pet. (U. S.) 538, 8 L. Ed. 1036; 1 I! 
 Adm. 62. And see 1 Swab. 261; 1 Dod. 40; 
 Blaine v. The Charles Carter, 4 Cra. (U. S.) 
 328, 2 L. Ed. 636. 
 
 Under the laws of the United States, bot- 
 tomry bonds are only quasi negotiable, and 
 except in cases subject to the principle of 
 equitable estoppel, the indorsee takes only 
 the payee's right; The Serapis, 37 Fed. 436. 
 
 The act of congress of July 29, 1850, de- 
 claring bills of sale, mortgages, hypotheca- 
 tions, and conveyances of vessels invalid 
 against persons other than the grantor or 
 mortgagor, his heirs and devisees, not hav- 
 ing actual notice thereof, unless recorded 
 in the office of the collector of the customs 
 where such vessel is registered or enrolled, 
 expressly provided that the lien by bottomry 
 on any vessel, created during her voyage by 
 a loan of money or materials necessary to 
 repair or enable such vessel to prosecute a 
 voyage, shall not lose its priority or be in 
 any way affected by the provisions of that 
 act. 
 
 Contracts of bottomry and respondentia 
 are so different in different countries that 
 when disputes arise they are to be decided 
 by the words used in the contract rather 
 than by principles of general commercial 
 law; O'Brien v. Miller, 168 U. S. 2S7, 18 
 Sup. Ct. 140, 42 L. Ed. 469. 
 
 Where a bottomry bond of an English ves- 
 sel was executed in New Orleans and the 
 charter provided she should be governed by 
 American law, the liability was according to 
 law of United States; The Wyandotte, 136 
 Fed. 470; affirmed in The Wyandotte, 145 
 Fed. 321, 75 C. C. A. 117. 
 
 BOUGHT NOTE. A written memorandum 
 of a sale, delivered, by the broker who effects 
 the sale, to the vendee. Story, Ag. § 28; 11 
 Ad. & E. 5S9 ; 8 M. & W. 834. 
 
 Bought and sold notes are made out. usu- 
 ally at the same time, the former being de- 
 livered to the vendee, the latter to the ven- 
 dor. When the broker has not exceeded his 
 authority, both parties are bound thereby; 
 1 C. & P. 3SS; 5 B. & C. 436 : 1 Bell, Com. 
 (4th ed.) 347, 477. Where the same broker 
 acts for both parties, the notes must cor- 
 respond ; 5 B. & C. 436 ; 17 Q. B. 103 ; Suy- 
 dam v. Clark, 2 Sandf. (N. Y.) 133. The 
 broker, as to this part of the transaction, is 
 agent for both parties; 2 II. & N. 210; Cod- 
 dington v. Goddard, 16 Gray (Mass.) 442. 
 Whether a memorandum in the broker's 
 books will cure a disagreement, see 17 Q. B. 
 115; 1 H. & N. 4S4; but it is said to be the 
 better opinion that the signed entry in the
 
 BOUGHT NOTE 
 
 384 
 
 BOUNDARY 
 
 broker's book constitutes the real contract 
 between the parties ; 1 C. P. D. 777 ; 9 M. & 
 W. 802 ; but it may be shown that the entry 
 was in excess of the broker's authority; 4 
 L. R. Ir. 94 ; that the bought and sold notes 
 do not constitute the contract, see 17 Q. B. 
 115. Where there is a variance between the 
 bought and sold notes, and no entry of the 
 transaction, there is no contract; 17 Q. B. 
 115. A bought note will take the case out of 
 the Statute of Frauds, if there is no vari- 
 ance ; 16 C. B. N. S. 11. See a full discus- 
 sion in Benj. Sales § 276; Tiednian, Sales 
 § 79. 
 
 BOUND BAILIFF. A sheriff's officer, who 
 serves writs and makes arrests. He is so 
 called because bound to the sheriff for the 
 due execution of his office. 1 Bla. Com. 345. 
 
 BOUNDARY. Any separation, natural or 
 artificial, which marks the confines or line 
 of two contiguous estates. 3 Toullier, n. 
 171. 
 
 The term is applied to include the objects placed 
 or existing at the angles of the bounding lines, as 
 well as those which extend along the lines of sepa- 
 ration. 
 
 A natural boundary is a natural object re- 
 maining where it was placed by nature. 
 
 A river or stream is a natural boundary, 
 and the centre line of the stream is the 
 line ; Jackson v. Louw, 12 Johns. (N. Y.) 252 ; 
 People v. Seymour, 6 Cow. (N. Y.) 579; 
 Haye's Ex'r v. Bowman, 1 Rand. (Va.) 417 ; 
 Arnold v. Mundy, 6 N. J. L. 1, 10 Am. Dec. 
 356; Dunlap v. Stetson, 4 Mas. 349, Fed. 
 Cas. No. 4,164 ; State v. Town of Gilmanton, 
 9 N. H. 461 ; 1 Tayl. 136 ; Morgan v. Reading, 
 3 Smedes & M. (Miss.) 366; Browne v. Ken- 
 nedy, 5 Harr. & J. (Md.) 195, 9 Am. x Dec. 
 503 ; Hammond v. Ridgely's Lessee, 5 Harr. 
 & J. (Md.) 245, 9 Am. Dec. 522; MacDonald 
 v. Morrill, 154 Mass. 270, 28 N. E. 259. 
 Where a natural pond is the boundary, the 
 line is tlie natural shore ; but where an ar- 
 tificial pond, the thread of the stream ; Wa- 
 terman v. Johnson, 13 Pick. (Mass.) 261 ; 
 State v. Town of Gilmanton, 9 N. H. 461; 
 Mansur v. Blake, 62 Me. 38; Kirkpatrick v. 
 Ice Co., 45 Mo. App. 335; Gouverneur v. 
 Ice Co., 134 N. Y. 355, 31 N. E. 865, 18 
 L. R. A. 695, 30 Am. St Rep. 669; Noyes 
 v. Collins, 92 la. 566, 61 N. W. 250, 26 L. 
 R. A. 609, 54 Am. St. Rep. 571; where a 
 meandered lake, the middle thereof; Olson 
 v. Huntamer, 6 S. D. 364, 61 i\. W. 479; 
 where the seashore, the line is at low water 
 mark ; Doane v. Willcutt, 5 Gray (Mass.) 335, 
 66 Am. Dec. 369; U. S. v. Pacheco, 2 Wall. 
 (U. S.) 587, 17 L. Ed. 865 ; Oakes v. De Lan- 
 cey, 133 N. Y. 227, 30 N. E. 974, 28 Am. St. 
 Rep. 62S. So where one of the great lakes 
 is the boundary; Sloan v. Biemiller, 34 Ohio 
 St. 492; or a navigable lake; see Village of 
 Wayzata v. Ry. Co., 50 Minn. 438, 52 N. W. 
 913. A grant of land bounded by navigable 
 * tide-water, carries no title to land below 
 
 high water mark ; De Lancey v. Piepgras, 63 
 Hun 169, 17 N. Y. Supp. 6S1. 
 
 Where land is bounded by the sea, and 
 the latter suddenly recedes, leaving consid- 
 erable space uncovered, this new land, under 
 the royal prerogative, becomes the proper- 
 ty of the king. But if the dereliction be 
 gradual, and by imperceptible degrees, then 
 the land gained belongs to the adjacent own- 
 er, for de minimis non curat lex; 3 Barn. 
 & C. 91, and cases cited. Similarly, where 
 a stream forming the uoundary between two 
 owners gradually changes its course, it con- 
 tinues to mark the line ; but if the change 
 be sudden and immediate, the boundary re- 
 mains in the old channel ; 2 Bla. Com. 262 ; 
 Collins v. State, 3 Tex. App. 323, 30 Am. 
 Rep. 142; Niebaus v. Shepherd, 26 Ohio St. 
 40; Holbrook v. Moore, 4 Neb. 437; Missouri 
 v. Kentucky, 11 Wall. (U. S.) 395, 20 L. Ed. 
 116. 
 
 An artificial boundary is one erected by 
 man. 
 
 The ownership, in case of such boundaries, 
 must, of course, turn mainly upon circum- 
 stances peculiar to each case; 5 Taunt. 20; 
 8 B. & C. 259; generally extending to the 
 centre; Child v. Starr, 4 Hill (N. Y.) 369; 
 Warner v. Southworth, 6 Conn. 471. A tree 
 standing directly on the line is the joint 
 property of both proprietors; Griffin v. Bix- 
 by, 12 N. H. 454, 37 Am. Dec. 225; other- 
 wise, where it only stands so near that the 
 roots penetrate ; 1 M. & M. 112 ; 2 Rolle 141. 
 Land bounded on a highway extends to the 
 centre-line, though a private street; New- 
 hall v. Ireson, 8 Cush. (Mass.) 595, 54 Am. 
 Dec. 790; Paul v. Carver, 26 Pa. 223, 67 
 Am. Dec. 413 ; Railroad v. Bingham, 87 Tenn. 
 522, 11 S. W. 705; Schneider v. Jacob, 86 
 Ky. 101, 5 S. W. 350; Halloway v. South- 
 mayd, 64 Hun 632, 18 N. Y. Supp. 707; un- 
 less the description excludes the highway; 
 Jackson v. Hathaway, 15 Johns. (N. Y.) 454, 
 8 Am. Dec. 263; Town of Chatham v. Brai- 
 nerd, 11 Conn. 60; Codman v. Evans, 1 Al- 
 len (Mass.) 443; 3 Washb. R. P. *635. 
 
 Boundaries are frequently denoted by mon- 
 uments fixed at the angles. In such case 
 the connecting lines are always presumed to 
 be straight, unless described to be otherwise ; 
 Allen v. Kingsbury, 16 Pick. (Mass.) 235; 
 Baker v. Talbott, 6 T. B. Monr. (Ky.) 179; 
 Burrows v. Vandevier, 3 Ohio, 382; Nelson 
 v. Hall, 1 McLean 519, Fed. Cas. No. 10,107 ; 
 2 Washb. R. P. *632. A practical surveyor 
 may testify whether, in his opinion, certain 
 marks on trees, piles of stones, or other 
 marks on the ground were intended as mon- 
 uments of boundaries ; Northumberland Coal 
 Co. v. Clement, 10 W. N. C. (Pa.) 321. 
 
 The following is the order of importance 
 in boundaries: first, the highest regard is 
 had to natural boundaries ; Redmond v 
 Stepp, 100 N. C. 212, 6 S. E. 727; Walrod 
 v. Flanigan, 75 la. 365, 39 N. W. 645 ; Morse
 
 BOUNDARY 
 
 385 
 
 BOUNDARY 
 
 r. Rollins, 121 Pa. 537, 15 Atl. 645; Hughes 
 v. Cawthorn, 35 Fed. 248; Wood v. Ramsey, 
 71 Md. 9, 17 Atl. 563 ; McAninch v. Freeman, 
 69 Tex. 445, 4 S. W. 369; second, to lines 
 actually run and corners marked at the time 
 of the grant; third, if the lines and courses 
 of an adjoining tract are called for, the 
 lines will be extended, if they are sufficiently 
 established, and no other departure from 
 the deed is required, preference being given 
 to marked lines; fourth, to courses and dis- 
 tances; Yanish v. Tarbox, 49 Minn. 268, 51 
 N. W. 1051. 
 
 Courses and distances give way to monu- 
 ments, but they must be of a permanent 
 character, and the place where they are at 
 the time of the conveyance must be satisfac- 
 torily located; Brown v. Morrill, 91 Mich. 
 29, 51 N. W. 700; Whitehead v. Ragan, 106 
 Mo. 231, 17 S. W. 307. But this is a mere 
 rule of construction; Green v. Horn, 207 N. 
 Y. 489, 101 N. E. 430. When a description 
 in a deed by metes and bounds conflicts with 
 a description by reference to plats, the for- 
 mer governs; Waldin v. Smith, 76 la. 652, 
 39 N. W. 82. 
 
 Parol evidence is often admissible to iden- 
 tify and ascertain the locality of monuments 
 called for by a description; Waterman v. 
 Johnson, 13 Pick. (Mass.) 267; Frost v. 
 Spaukling, 19 Pick. (Mass.) 445, 31 Am. Dec 
 150 ; and where the description is ambiguous, 
 the practical construction given by the par- 
 ties may be shown; Choate v. Burnham, 7 
 Pick. (Mass.) 274. Common reputation may 
 be admitted to identify monuments, especial- 
 ly if of a public or quasi-public nature; 
 Griffin v. Graham, S N. C. 116, 9 Am. Dec. 
 619; Harmer v. Morris, 1 McLean, 45, Fed. 
 Cas. No. 6,076; Nelson v. Hall, 1 McLean, 
 518, Fed. Cas. No. 10,107; Whitney v. Smith, 
 10 N. H. 43; Cravenson v. Meriwither, 2 A. 
 K. Marsh. (Ky.) 158; Beaty v. Hudson, 9 
 Dana (Ky.) 322; Smith v. Shackleford, 9 
 Dana (Ky.) 465; Boardman v. Reed, 6 Pet. 
 (U. S.) 341, 8 L. Ed. 415 ; Harriman v. Brown, 
 8 Leigh (Va.) 697; McCoy's Lessee v. Gal- 
 loway, 3 Ohio, 282, 17 Am. Dec. 591. On a 
 conflict of boundaries between deeds from 
 the same person, the one that was first ex- 
 ecuted controls; Flynn v. Sparks, 11 S. W. 
 206, 10 Ky. L. Rep. 960. Where there are 
 two conflicting monuments, and one corre- 
 sponds with the courses and distances, that 
 one should be taken and the other rejected 
 as surplusage; Zeibold v. Foster, 118 Mo. 
 349, 24 S. W. 155. 
 
 The determination of the boundaries of 
 the states is placed by the constitution in 
 the supreme court of the United States; 
 Rhode Island v. Massachusetts, 12 Pet. (U. 
 S.) 657, 9 L. Ed. 1233; id., 4 How. (U. S.) 
 591. 11 L. Ed. 1116; Virginia v. West Vir- 
 ginia, 11 Wall. (U. S.) 39, 20 L. Ed. 67. 
 This position was taken by that court 
 against the opinion of Chief Justice Taney, 
 who held that a controversy between states, 
 
 Bouv.— 25 
 
 or between individuals, in relation to the 
 boundaries of a state, falls within the pr.jv- 
 ince of the court where the suit is brought 
 to try a right of property in the soil, or any 
 other right which is properly the subject 
 of judicial cognizance and decision ; but not 
 a contest for rights of sovereignty and juris- 
 diction between states over any particular 
 territory. This he held to be a political 
 question; Rhode Island v. Massachusetts, 12 
 Pet. (U. S.) 752, 9 L. Ed. 1233. All the cases 
 of boundary disputes between states which 
 arose prior to the constitution and were 
 tried under the articles of confederation, by 
 courts specially constituted by Congress, are 
 collected in 131 U. S. App. II. 
 
 Long acquiescence in the assertion of a 
 particular boundary between states and the 
 exercise of sovereignty within it, should be 
 accepted as conclusive; Louisiana v. Missis- 
 sippi, 202 U. S. 1, 26 Sup. Ct. 571, 50 L. Ed. 
 934. 
 
 See Line. 
 
 As to state boundaries, when they are 
 rivers, see Avulsion ; Riveb. 
 
 BOUNDING OR ABUTTING. See Abut. 
 BOUNTY. An additional benefit conferred 
 upon, or a compensation paid to, a class 
 of persons. 
 
 It differs from a reward, which is usually applied 
 to a sum paid for the performance of some specific 
 act to some person or persons. It may or may not 
 be part of a contract. Thus, the bounty offered a 
 soldier would seem to be part of the consideration 
 for his services. The bounty paid to fishermen is 
 not a consideration for any contract, however. See 
 Fowler v. Danvers, 8 Allen (Mass.) 80; Eichelberg- 
 er v. Sifford, 27 Md. 320; Abbe v. Allen, 39 How. Pr. 
 (N. Y.) 481. 
 
 A premium offered or given to induce 
 men to enlist into the public service. Abbe 
 v. Allen, 39 How. Pr. (N. Y.) 4S1. 
 
 BOURSE. An exchange. Bourses owe 
 their origin to the Jews. The word originat- 
 ed at Bruges, where merchants gathered at 
 the house of Van der Bruse; or the word is 
 from the three purses (bourses) carved on 
 the gable of the house where the meetings 
 were held. Stock Exchange by Van Ant- 
 werp. 
 
 B0 U WE RYE. A farm. 
 
 B0 UW MASTER. A farmer. 
 
 B0 V ATA TERR/E. As much land as one 
 ox can cultivate. Said by some to be thir- 
 teen, by others eighteen, acres in extent. 
 Skene ; Spelman, Gloss. ; Co. Litt 5 a. 
 
 Bovate is used in expressing a quantity 
 of land and meaning one-eighth of a carucate, 
 i. e. the amount of land which can be plough- 
 ed by one ox; generally about fifteen acres. 
 2 Holdsw. Hist. E. L. 57. See Carucate. 
 Both terms seem to be French, and not part 
 of the official Latin. Maitl. Domesday and 
 Beyond 395. 
 
 BOYCOTT. An organized effort to ex- 
 clude a person from business relations with
 
 BOYCOTT 
 
 38G 
 
 BOYCOTT 
 
 others by persuasion, intimidation and oth- 
 er acts which tend to violence, and thereby 
 to coerce him, through fear of resulting in- 
 jury, to submit to dictation in the manage- 
 ment of his affairs. Casey v. Typographical 
 Union, 45 Fed. 135, 12 L. R. A. 193, citing 
 State v. Glidden, 55 Conn. 46, 8 Atl. 890, 
 3 Am. St. Rep. 23. 
 
 In State v. Glidden, 55 Conn. 46, 8 Atl. 
 890, 3 Am. St. Rep. 23, it was held that to 
 threaten or intimidate a person to compel 
 him against his will to do or abstain from 
 doing any act which he has a legal right to 
 do, is an unlawful conspiracy. See also 15 
 Q. B. D. 476; 23 id. 59S; [1892] A. C. 25; 
 [1893] 1 Q. B. 715; Toledo Ry. Co. v. Penn. 
 Co., 54 Fed. 730, 19 L R. A. 387; Carew v. 
 Rutherford, 106 Mass. 1, 8 Am. Rep. 287; 
 Sherry v. Perkins, 147 Mass. 212, 17 N. E. 
 307, 9 Am. St. Rep. 6S9; Lucke v. Clothing 
 Cutters, 77 Md. 396, 26 Atl. 505, 19 L. R. A. 
 40S, 39 Am. St. Rep. 421; Crump's Case, 84 
 Va. 940, 6 S. E. 620, 10 Am. St. Rep. 895; 
 Hopkins v. Stave Co., 83 Fed. 912, 28 C. C. 
 A. 99. The word itself is held in Casey v. 
 Typographical Union, 45 Fed. 135, 12 L. R. 
 A. 193, to be a threat. Intimidation and 
 coercion are its essential elements; Gray v. 
 Council, 91 Minn. 171, 97 N. W. 663, 63 L. 
 R. A. 753, 103 Am. St. Rep. 477, 1 Ann. Cas. 
 172. 
 
 On the other hand it is held that a boy- 
 cott is not unlawful, unless attended by 
 some act in itself illegal; Bonn Mfg. Co. v. 
 Hollis, 54 Minn. 223, 55 N. W. 1119, 21 L. 
 R. A. 337, 40 Am. St. Rep. 319; Longshore 
 Printing & Pub. Co. v. Howell, 26 Or. 527, 
 38 Pac. 547, 28 L. R. A. 464, 46 Am. St. Rep. 
 640; that an act lawful in itself is not 
 converted by a bad motive into an unlawful 
 or tortious act ; Allen v. Flood, [1898] A. C. 1. 
 
 A product may be the subject of a boy- 
 cott; Purvis v. Local No. 500, United Broth- 
 erhood of Carpenters & Joiners, 214 Pa. 348, 
 63 AtL 585, 12 L. R. A. (N. S.) 642, 112 Am. 
 St. Rep. 757, 6 Ann. Cas. 275; Purington v. 
 Hinchliff, 219 111. 159, 76 N. E. 47, 2 L. R. A. 
 (N. S.) 824, 109 Am. St. Rep. 322 ; Loewe v. 
 Lawlor, 208 U. S. 274, 28 Sup. Ct. 301, 52 L. 
 Ed. 488, 13 Ann. Cas. 815; and combinations 
 for this purpose both on the part of dealers 
 to compel one in the same business to join 
 their association and of labor unions to force 
 an employer to submit to their terms are usu- 
 ally in the United States held illegal; Pur- 
 ington v. Hinchliff, 219 111. 159, 76 N. E. 47, 
 2 L. R. A. (N. S.) 824. 109 Am. St. Rep. 322; 
 Purvis v. Local No. 500. United Brotherhood 
 of Carpenters & Joiners, 214 Pa. 348, 63 
 Atl. 585. 12 L. R. A. (N. S.) 642, 112 Am. St. 
 Rep. 757, 6 Ann. Cas. 275, where it was held 
 "a man's business is his property, and to put 
 one in actual fear of its loss or of injury to 
 his business is often no less potent in co- 
 ercing than fear of violence to his person," 
 citing Plant v. Woods, 176 Mass. 492, 57 N. 
 
 E. 1011, 51 L. R. A. 339. 79 Am. St. Rep. 
 330. 
 
 In Allen v. Flood, [1898] A. C. 1, it is said 
 that workmen have an equal right of proper- 
 ty in their labor, to dispose of it as they 
 please, limited only by the equal right of the 
 employer to do the same; that as each work- 
 man and all of them had a right to refuse to 
 work if his demands were not acceded to, 
 it could be in no sense coercion to put the 
 employer to an election; and because the 
 incidents of the situation made it to his 
 interests to accede to the demand made so 
 that (unless he was willing to assume the 
 resulting loss) he had no real option in the 
 matter, his yielding was no proof of intimi- 
 dation. It was further said : "In every such 
 case the controlling inquiry is one of means, 
 and these can never be unlawful, if what 
 was in fact done marks an exercise of a 
 right, or a declaration of a purpose to do 
 that which is not of itself unlawful." 
 
 In Quinn v. Leathern, [1901] A. C. 495, 
 Allen v. Flood is distinguished, and it is 
 held that a conspiracy to injure, if there be 
 damage, gives rise to civil liability; that an 
 oppressive combination differs widely from 
 an invasion of civil rights by a single person ; 
 that if wrongful interference with a man's 
 liberty of action is intended to injure, and 
 in fact damages a third person, such third 
 person has a remedy by an action; and that 
 annoyance and coercion by many may be 
 actionable, where like conduct on the part 
 of one person would not be so. This case 
 approves Temperton v. Russel, [1893] 1 Q. B. 
 715. In Loewe v. Lawlor, 208 U. S. 274, 28 
 Sup. Ct. 301, 52 L. Ed. 488, 13 Ann. Cas. 815, 
 a combination to boycott a manufactured 
 product was held to fall within the class 
 of restraints of trade prohibited by the fed- 
 eral anti-trust act. 
 
 In Gompers v. Stove & Range Co., 221 U. 
 S. 437, 31 Sup. Ct. 492, 55 L. Ed. 797, 34 L. 
 R. A. (N. S.) 874, it is said : "Courts differ 
 as to what constitutes a boycott that may be 
 enjoined. All hold that there must be a con- 
 spiracy causing irreparable damage to the 
 business or property of the complainant. 
 Some hold that a boycott against the com- 
 plainant by a combination of persons not im- 
 mediately connected with him in business 
 may be restrained. Others hold that the sec- 
 ondary boycott can be enjoined where the 
 conspiracy extends not only to injuring the 
 complainant, but secondarily coerces or at- 
 tempts to coerce his customers to refrain 
 from dealing with him, by threats that un- 
 less they do, they themselves will be boy- 
 cotted. Others hold that no boycott can be 
 enjoined, unless there are acts of physical 
 violence, or intimidation caused by threats 
 of physical violence." 
 
 The publication of letters, circulars and 
 printed matter may constitute a means 
 whereby a boycott is unlawfully continued, 
 and their use for such purpose may amount
 
 BOYCOTT 
 
 387 
 
 BOYCOTT 
 
 to a violation of the injunction ; Reynolds 
 v. Davis, 198 Mass. 300, 84 N. E. 457, 17 L. 
 R. A. (N. S.) 162; Sherry v. Perkins, 147 
 Mass. 212, 17 N. E. 307, 9 Am. St. Rep. 689 ; 
 Brown v. Pharmacy Co., 115 Ga. 452, 41 S. 
 E. 553, 57 L. R. A. 547, 90 Am. St. Rep. 126 ; 
 Lohse Patent Door Co. v. Fuelle, 215 Mo. 
 421, 114 S. W. 997, 22 L, R. A. (N. S.) 607, 
 128 Am. St. Rep. 492; Thomas v. R. Co., 62 
 Fed. 803; Continental Ins. Co. v. Board, 67 
 Fed. 310; Beck v. Protective Union, 118 
 Mich. 527, 77 N. W. 13, 42 L. R. A. 407, 74 
 Am. St. Rep. 421; Barr v. Trades Council, 
 53 N. J. Eq. 102, 30 Atl. 881. See, also, 
 Ludwig v. West Tel. Co., 216 U. S. 156, 30 
 Sup. Ct. 2S0, 54 L. Ed. 423; Bitterman v. 
 R. Co., 207 U. S. 206, 28 Sup. Ct. 91, 52 L. 
 Ed. 171; Scully v. Bird, 209 U. S. 489, 28 
 Sup. Ct. 597, 52 L. Ed. 899. (These cases 
 are cited in the opinion. Gompers v. Stove 
 & Range Co., 221 U. S. 438, 31 Sup. Ct. 492, 
 55 L. Ed. 797, 34 L. R, A. [N. S.] 874.) 
 
 One who is under no contract relation to 
 another may without question withdraw 
 from business relations with that other. 
 This includes the right to cease to deal not 
 only with the individual who may be pur- 
 suing a course deemed by him detrimental, 
 but with all who, by their patronage, aid in 
 the maintenance of the objectionable poli- 
 cies; J. F. Parkinson Co. v. Building Trades 
 Council, 154 Cal. 581, 98 Pac. 1027, 21 L. 
 R. A. (N. S.) 550, 16 Ann. Cas. 1165, where 
 it was held that if the workmen violated 
 no right of the company by refusing to 
 work for it, they violated none by refusing 
 to work for contractors who used material 
 bought of it To the same effect, [1S92] A. 
 C. 25; National Protective Ass'n of Steam 
 Fitters & Helpers v. Cumming, 170 N. Y. 
 315, 63 N. E. 369, 58 L. R. A. 135, 88 Am. 
 St. Rep. 648; Clemmitt v. Watson, 14 Ind. 
 App. 38, 42 N. E. 367; Cote v. Murphy, 159 
 Pa. 420, 28 Atl. 190, 23 L. R. A. 135, 39 Am. 
 St. Rep. 6S6 ; Macauley v. Tierney, 19 R. I. 
 255, 33 Atl. 1, 37 L. R. A. 455, 61 Am. St. 
 Rep. 770; Bobn Mfg. Co. v. Hollis, 54 Minn. 
 223, 55 N. W. 1119, 21 L. R. A. 337, 40 Am. 
 St. Rep. 319; Payne v. R. Co., 13 Lea (Tenn.) 
 507, 49 Am. Rep. 666; Hey wood v. Tillson, 
 75 Me. 225, 46 Am. Rep. 373; Raycroft v. 
 Tayntor, 68 Vt. 219, 35 Atl. 53, 33 L. R. A. 
 225, 54 Am. St. Rep. 882; State v. Van Pelt, 
 136 N. C. 633, 49 S. E. 177, 68 L. R. A. 760, 
 1 Ann. Cas. 495; Lindsay & Co. v. Federa- 
 tion of Labor, 37 Mont. 264, 96 Pac. 127, 18 
 L. R. A. CN. S.) 707, 127 Am. St. Rep. 722; 
 [1898] A. C. 128. 
 
 On the other hand, it is held that it is 
 unlawful, in an effort to compel A to yield 
 a legitimate benefit to B, for B to demand 
 that C withdraw his patronage from A un- 
 der penalty of losing B's services or patron- 
 age to which he has no contract right; 
 Thomas v. Ry. Co., 62 Fed. S03; id., 4 Inters. 
 Com. Rep. 788; Hopkins v. Stave Co., 83 
 Fed. 912, 28 C. C- A. 99, 49 U. S. App. 709 ; 
 
 Vegelahn v. Guntner, 167 Mass. 92, 44 
 1077, 35 L. R. A. 722, 57 Am. St. Rep 
 Beck v. Protective Union, 118 Mich. -4 
 N. W. 13, 42 L. R, A. 407, 74 Am. St 
 421; Gray v. Building Trades Coum 
 Minn. 171, 97 N. W. 663, 63 L. R. A. 75i 
 Am. St. Rep. 477, 1 Ann. Cas. 172; Barr v. 
 Trades Council, 53 N. J. Eq. 101, 30 Atl. 881 ; 
 Lucke v. Clothing Cutters & Trimmers' As- 
 sembly, 77 Md. 396, 26 Atl. 505, 19 L. R. A. 
 408, 39 Am. St. Rep. 421; Jackson v. Stan- 
 field, 137 Ind. 592, 36 N. E. 345, 37 N. B. 
 14, 23 L. R. A. 588; Crump's Case, 84 Va. 
 927, 6 S. E. 620, 10 Am. St Rep. 895; [1901] 
 A. C. 495. 
 
 The term seems to have been derived from an 
 Incident that occurred in Ireland. Captain Boycott, 
 an Englishman, who was agent of Lord Earne and 
 a farmer of Lough Mask, served notices upon the 
 lord's tenants, and they in turn, with the sur- 
 rounding population, resolved to have nothing to do 
 with him, and, as far as they could prevent it, not 
 to allow any one else to have. His life appeared 
 to be in danger, and he had to claim police protec- 
 tion. His servants fled from him, and the awful 
 sentence of excommunication could hardly have 
 rendered him more helplessly alone for a time. No 
 one would work for him, and no one would supply 
 him with food. He and his wife were compelled to 
 work in their own fields with the shadows of armed 
 constabulary ever at their heels; Justin MacCar- 
 thy's "England under Gladstone." See State v. 
 Glidden, 55 Conn. 46, 8 Atl. 890, 3 Am. St Rep. 23; 
 18 L. R. Ir. 430. 
 
 Combinations, in the nature of boycotts, 
 which have been held to be unlawful conspir- 
 acies are: To compel a member of a labor 
 union to pay a fine assessed against him for 
 working in a mill with steam machinery by 
 preventing his obtaining employment; 5 Cox, 
 C. C. 162; to obstruct an employer in the con- 
 duct of his business; People v. Petheram, 64 
 Mich. 252, 31 N. W. 1S8; 10 Cox, C. C. 592; 
 to coerce an employer to conduct his business 
 with reference to apprentices and delinquent 
 members according to the demand of the 
 union, by injuring his business through no- 
 tices to customers and material men that 
 dealings with him would be followed by sim- 
 ilar measures against them; Moores & Co. 
 v. Bricklayers' Union, 23 Wkly. L. B. (Ohio) 
 48; to prevent the employment of a granite 
 cutter declared by a labor union to be a 
 "scab"; State v. Stewart. 59 Vt. 273. 9 Atl. 
 559, 59 Am. Rep. 710; State v. Donaldson, 
 M2 N. J. L. 151, 90 Am. Dec. 649; to < 
 an employer to discharge non-union men; 
 State v. Glidden, 55 Conn. 46, 8 Atl. B90, :: 
 Am. St Rep. 23; People v. Wilzig, 4 X. Y. 
 Crim. Rep. 403; People v. Kostka. Id. 429; 
 People v. Smith, 5 N. Y. Crim. Rep. 509; to 
 induce employes to leave their employment 
 and prevent others from entering it; Walker 
 v. Cronin, 107 Mass. 555 ; to induce workmen 
 to quit in a body to enforce the demands of 
 a labor union ; Old Dominion S. S. Co. v. 
 McKenna, 30 Fed. 4S; to parade in front of 
 a factory with banners to induce workmen 
 to keep away; Sherry v. Perkins, 147 Mass. 
 212, 17 N. E. 307, 9 Am. St Rep. 6S9. Com-
 
 BOYCOTT 
 
 388 
 
 BOYCOTT 
 
 binations to prevent the sale of a manufac- 
 tured product except upon conditions with 
 which the manufacturer does not wish to 
 comply; Purington v. Hinchliff, 219 111. 159, 
 76 N. B. 47, 2 L R. A. (N. S.) 824, 109 Am. 
 St. Rep. 322; or to force a business man to 
 conform his prices to those of an associa- 
 tion of others in the same business; Dore- 
 mus v. Hennessy, 176 111. 60S, 52 N. E. 924, 
 54 N. E. 524, 43 L. R. A. 797, 802, 68 Am. 
 St. Rep. 203; or to join are association of 
 other men in the same business; Boutwell 
 v. Marr, 71 Vt 1, 42 Atl. 607, 43 L. R. A. 803, 
 76 Am. St. Rep. 746; Martell v. White, 185 
 Mass. 255, 69 N. E. 10S5, 64 L. R. A. 260, 102 
 Am. St. Rep. 341; W. W. Montague & Co. 
 v. Lowry, 193 U. S. 38, 24 Sup. Ct. 307, 
 48 L. Ed. 608; or to unionize his place of 
 business; Purvis v. United Brotherhood of 
 Carpenters & Joiners, 214 Pa. 348, 63 Atl. 
 585, 12 L. R. A. (N. S.) 642, 112 Am. St. Rep. 
 757, 6 Ann. Cas. 275; Loewe v. Lavvlor, 208 
 U. S. 274, 28 Sup. Ct. 301, 52 L. Ed. 488, 
 13 Ann. Cas. 815; are illegal means of en- 
 forcing a boycott; and so it is held are any 
 combinations to secure action which essential- 
 ly obstructs the free flow of commerce be- 
 tween the states or restricts, in that regard, 
 the liberty of a trader to engage in business; 
 Loewe v. Lawlor, 208 U. S. 274, 28 Sup. Ct. 
 301, 52 L. Ed. 488, 13 Ann. Cas. 815; an 
 agreement by shipowners, in order to secure 
 a carrying trade exclusively for themselves, 
 that agents of members should be prohibited 
 upon pain of dismissal from acting in the in- 
 terests of competing shipowners ; [1892] A. C. 
 25; a combination of retailers binding the 
 members to refuse to purchase of wholesal- 
 ers who should sell to non-members of the 
 combination; Bohn Mfg. Co. v. Hollis, 54 
 Minn. 223, 55 N. W. 1119, 21 L. R. A. 337, 40 
 Am. St. Rep. 319; an agreement of contrac- 
 tors to withdraw their patronage from whole- 
 salers selling to a contractor who has conced- 
 ed to the demands of his employes for an 
 eight hour day; Cote v. Murphy, 159 Pa. 
 420, 28 Atl. 190, 23 L. R. A. 135, 39 Am. St. 
 Rep. 686; a threat by a railroad company to 
 discharge any employe who should deal with 
 the plaintiff; Payne v. R. Co., 13 Lea (Tenn.) 
 507, 49 Am. Rep. 666; a threat by an employ- 
 er that he would discharge any laborer who 
 rented plaintiff's house; Hey wood v. Tillson, 
 75 Me. 225, 46 Am. Rep. 373. 
 
 To gather around a place of business and 
 follow employes to and from work, and to 
 collect about their boarding-places with 
 threats, intimidation, and ridicule ; Murdock 
 v. Walker, 152 Pa. 595, 25 Atl. 492, 34 Am. 
 St. Rep. 678; Barnes & Co. v. Typographical 
 Union, 232 111. 424, 83 N. E. 940, 14 L. R. A. 
 (N. S.) 1018, 13 Ann. Cas. 54; or to con- 
 gregate around the entrance to a place of 
 business for the purpose of preventing the 
 public from entering; Jersey City Printing 
 Co. v. Cassidy, 63 N. J. Eq. 759, 53 AtL 230 ; 
 
 Jensen v. Cooks' & Waiters' Union, 39 Wash- 
 SSI, 81 Pac. 1069, 4 L. R. A. (N. S.) 302; such 
 besetting of works is called piclceting (q. v.). 
 Boycotts may be restrained by injunction; 
 Friedman v. Israel, 26 Fed. 803; Casey v. 
 Typographical Union, 45 Fed. 135, 12 L. R. 
 A. 193 ; a violation of which is punishable 
 as a contempt; U. S. v. Debs, 64 Fed. 724; 
 In re Debs, 158 U. S. 564, 15 Sup. Ct. 900, 
 39 L. Ed. 1092; when they are found to be 
 unlawful conspiracies; Gray v. Building 
 Trades Council, 91 Minn. 171, 97 N. W. 663, 
 63 L. R. A. 753, 103 Am. St. Rep. 477, 1 Ann. 
 Cas. 172; Barr v. Trades Council, 53 N. J. 
 Eq. 101, 30 Atl. 881 ; and the fact that they 
 are such will not prevent such remedy where 
 they threaten irreparable injury to persons 
 or property; Cranford v. Tyrrell, 128 N. Y. 
 341, 28 N. E. 514. That the ultimate pur- 
 pose of the combination is to secure benefits 
 to its members rather than to inflict dam- 
 age on a boycotted Dusiness is held to be 
 no justification ; Erdman v. Mitchell, 207 Pa. 
 79, 56 Atl. 327, 63 L. R. A. 534, 99 Am. St. 
 Rep. 783. The court cannot look beyond 
 the Immediate injury to the remote result; 
 Purvis v. United Brotherhood, 214 Pa. 348, 
 63 Atl. 585, 12 L. R. A. (N. S.) 642, 112 Am. 
 St. Rep. 757, 6 Ann. Cas. 275. In their ef- 
 forts to better their condition they may in- 
 flict more or less damage upon others. But 
 these results should be incidental damage 
 and inconvenience consequent on the opera- 
 tion of general rules, lawful in themselves, 
 rather than those which follow a specific 
 intent and immediate purpose of injury to 
 others in order that good may ultimately 
 come to themselves. The doctrine that the 
 end justifies the means has no place in a 
 condition of society where law prevails ; Cur- 
 ran v. Galen, 152 N. Y. 33, 46 N. E. 297, 37 
 L. R. A. 802, 57 Am. St. Rep. 496; Plant 
 v. Woods, 176 Mass. 492, 57 N. E. 1011, 51 
 L. R. A. 339, 79 Am. St. Rep. 30, where it 
 was said that the right to be free from 
 molestation must be considered as well as 
 that of bettering a class condition, per O. W. 
 Holmes, Jr., C. J. 
 
 On the other hand, where the publication 
 of a libelous circular for the purpose of 
 creating a boycott was sought to be en- 
 joined, it was held that the court cannot, by 
 injunction interfere with the constitutional 
 right freely to speak or write ; Marx v. Haas 
 Jeans Clothing Co. v. Watson, 168 Mo. 133, 
 67 S. W. 391, 56 L. R. A. 951, 90 Am. St 
 Rep. 440; and for the same offense, an in- 
 junction was refused on the ground that 
 the plaintiffs had no property right in the 
 trade of any particular person. In several 
 states there are statutes on the subject, some 
 of them merely declaratory of the common 
 law, and others, more drastic, which extend 
 the doctrine to new acts and circumstances. 
 See, generally, Moses, Strikes; Stimson's 
 Handbook of Labor Law in the U. S. ;
 
 BOYCOTT 
 
 389 
 
 BREACH 
 
 Combination; Labob Union; Blacklisting; 
 Conspibacy; Malice; Motive; Restbaint of 
 Tbade ; Stbike. 
 
 BOZERO. In Spanish Law. An advocate; 
 one who pleads the causes of others, either 
 suing or defending. Las Partidas, part. 3, 
 
 tit. v. 1. 1-6. 
 
 Called also abogado. Amongst other classes of 
 persons excluded from this office are minors under 
 seventeen, the deaf, the dumb, friars, women, and 
 Infamous persons. White, New Rec. 274. 
 
 BRANCH. A portion of the descendants 
 of a person, who trace their descent to some 
 common ancestor, who is himself a descend- 
 ant of such person. 
 
 The whole of a genealogy is often called the gen- 
 ealogical tree; and sometimes it is made to take 
 the form of a tree, which is in the first place divid- 
 ed into as many branches as there are children, aft- 
 erwards into as many branches as there are grand- 
 children, then great-grandchildren, etc. If, for ex- 
 ample, it be desired to form the genealogical tree of 
 Peter's family, Peter will be made the trunk of the 
 tree ; if he has had two children, John and James, 
 their names will be written on the first two branch- 
 es, which will themselves shoot out into as many 
 smaller branches as John and James have children ; 
 from these others proceed, till the whole family is 
 represented on the tree. Thus the origin, the ap- 
 plication, and the use of the word branch in gene- 
 alogy will be at once perceived. 
 
 BRANDING. An ancient mode of punish- 
 ment by inflicting a mark on an offender 
 with a hot iron. It is generally disused in 
 civil law, but is a recognized punishment for 
 some military offences. 
 
 It is also used with reference to the mark- 
 ing of cattle for the purpose of identification. 
 See Animal. 
 
 BRANKS. An instrument of punishment 
 formerly made use of in some parts of Eng- 
 land for the correction of scolds, which it 
 was said to do so effectually and so very 
 safely that it was looked upon by Dr. Plotts, 
 in his History of Staffordshire, p. 3S9, "as 
 much to be preferred to the ducking-stool, 
 which not only endangers the health of the 
 party, but also gives the tongue liberty 'twixt 
 every dip, to neither of which is this liable ; 
 it brings such a bridle for the tongue as not 
 only quite deprives them of speech, but brings 
 shame for the transgression and humiliation 
 thereupon before it is taken off." 
 
 BRASS KNUCKLES. A weapon worn on 
 the hand for the purposes of offence or de- 
 fence, so made that in hitting with the fist 
 considerable damage is inflicted. 
 
 It is called "brass knuckles" because it 
 was originally made of brass. The term is 
 now used as the name of the weapon with- 
 out reference to the metal of which it is 
 made; Patterson v. State, 3 Lea (Tenn.) 575. 
 
 BREACH. In Contracts. The violation of 
 an obligation, engagement, or duty. 
 
 A continuing breach is one where the con- 
 dition of things constituting a breach con- 
 tinues during a period of time, or where the 
 acts constituting a breach are repeated at 
 
 brief intervals; F. Moore 242; Holt 
 2 Ld. Raym. 1125. 
 
 The right to rescind a contract for non- 
 performance is a remedy as old as the law 
 of contract itself. When the contract is eu- 
 tire — indivisible — the right is unquestioned. 
 The undertakings on the one side and on 
 the other are dependent, and performance 
 by the one party cannot be enforced by the 
 other without performance or a tendi 
 performance on his own part ; Norrington 
 v. Wright, 115 U. S. 188, G Sup. Ct. 1-', 29 
 L. Ed. 3GG. In that case plaintiff agreed 
 to ship 5,000 tons of rails at the rate of about 
 1,000 tons a month beginning in February, 
 and the whole contract to be shipped before 
 the first of August of the same year. Only 
 400 tons were shipped in February and 885 
 in March, and it was held that the failure 
 to fulfill the contract in respect to these first 
 two installments justified the rescission of the 
 whole contract, provided that the defendants 
 distinctly and seasonably asserted their right 
 to rescind ; and the fact that tbe defendants 
 had accepted the shipment of 400 tons in 
 February was no waiver of this right, be- 
 cause it took place without notice or means 
 of knowledge that the stipulated quantity 
 had not been shipped in February. An Eng- 
 lish case in 1S51) allowed rescission on the 
 ground of insufficient delivery of the first 
 installment of an iron contract; 5 H. & N. 
 19. Where on a year's contract for furnish- 
 ing coke, payment to be made on the twen- 
 tieth of each month for the deliveries of the 
 preceding month, it was held that there 
 might be a breach of the contract on the 
 twenty-third of the month, if the sum were 
 still unpaid; Hull Coal & Coke Co. v. Coal 
 & Coke Co., 113 Fed. 256, 51 C. C. A. 213. 
 The supreme court of Michigan has decided, 
 in a contract to deliver wood in installments, 
 that a refusal to pay for the third install- 
 ment was not such a breach as to excuse the 
 defendant from making further deliveries, on 
 the ground that the defendant's refusal to 
 pay did not evince an intention no longer to 
 be bound by the contract; West v. Bechtel, 
 125 Mich. 144, S4 N. W. 09, 51 L. R. A. 791. 
 This case is distinguished from Norrington 
 v. Wright, supra, in that the latter was a 
 breach for non-delivery and the Michigan 
 case was a breach for non-payment. 
 
 In Iowa it was held that a failure to pay 
 for a shipment of coal within thirty days, 
 as agreed in a contract for the shipment of 
 a certain amount in quantities as ordered, 
 does not go to the whole consideration of the 
 contract, and does not therefore give the 
 right to rescind; Osgood v. Bauder, 75 la. 
 550, 39 N. W. S87, 1 L. R. A. 655 ; contra, 
 Ross-Meehan Foundry Co. v. Wheel Co., 113 
 Tenn. 370, S3 S. W. 1G7. 6S L. R. A. 829, "> 
 Ann. Cas. 80S; and in New Jersey a failure 
 to deliver the first installment of goods on 
 a contract for delivery in installments does
 
 BREACH 
 
 390 
 
 BREACH 
 
 not justify a rescission by- the buyer; Gerli 
 v. Silk Mfg. Co., 57 N. J. L. 432, 31 Atl. 401, 
 30 L. R. A. 61, 51 Am. St. Rep. 611. Acts 
 indicating an intention to abandon a con- 
 tract justify the aggrieved party in rescind- 
 ing, but mere breach in performance, with- 
 out repudiation, cannot warrant rescission; 
 9 C. P. 208; [1900] 2 Ch. 29S. Where one 
 party to a contract is guilty of a breach, the 
 other party is at liberty to treat the contract 
 as broken and desist from any further ef- 
 fort On his part to perform. Such an aban- 
 donment is not technically a rescission of the 
 contract, but merely an acceptance of the 
 situation which the wrongdoing of the other 
 party has brought about; Anvil Min. Co. v. 
 Humble, 153 U. S. 540, 14 Sup. Ct 876, 38 L. 
 Ed. 814; Pierce v. R. Co., 173 U. S. 1, 19 
 Sup. Ct 335, 43 L. Ed. 591 ; Roehm v. Horst, 
 178 U. S. 14, 20 Sup. Ct. 7S0, 44 L. Ed. 953. 
 It has been held that when a contract is 
 repudiated by one party, and the other party 
 has not elected to treat such a repudiation 
 as a breach, the latter is not excused from 
 continuing to perform on his part; Smith 
 v. Banking Co., 113 Ga. 975, 39 S. E. 410. 
 Where the agreement is mutual and de- 
 pendent, and one party fails to perform his 
 part, the other party may treat it as rescind- 
 ed ; South Texas Telephone Co. v. Hunting- 
 ton (Tex.) 121 S. W. 242 ; and he is not bound 
 to tender performance; Hollerbach & May 
 Contract Co. v. Wilkins, 130 Ky. 51, 112 S. 
 W. 1126. The abandonment of a ship is a 
 renunciation of the contract of affreight- 
 ment; The Eliza Lines, 199 U. S. 119, 26 
 Sup. Ct. 8, 50 L. Ed. 115, four judges dis- 
 senting. Where one party to a contract re- 
 fuses, by anticipation, to perform the con- 
 tract, the other party may consider it a 
 breach and sue immediately ; Hochster v. 
 De la Tour, 2 El. & Bl. 678. In Frost v. 
 Knight, 7 Ex. Ill, defendant had promised 
 to marry plaintiff as soon as his father 
 should die. While his father was yet alive, 
 he absolutely refused to marry plaintiff; it 
 was held that an action would lie during the 
 father's lifetime. In 17 Q. B. 127, it was 
 held that upon the defendant railroad com- 
 pany giving notice to plaintiff that it would 
 not receive any more of its chairs, it might 
 sue for the breach without tendering the 
 goods. In 16 Q. B. Div. 467, it was held that 
 where one party by anticipation refuses to 
 perform the contract, it entitled the other 
 party, if he pleased, to agree to the contract 
 being put an end to. In Dingley v. Oler, 117 
 U. S. 502, 6 Sup. Ct. 850, 29 L. Ed. 984, the 
 court considered the cases, but declined to 
 decide whether or not the rule should be 
 maintained as applicable to the class of cases 
 to which the one then before it belonged; 
 and said it has been called in England a 
 "novel doctrine" and has never been applied 
 in that court. 
 The cases of Foss-Schneider Brewing Co. 
 
 v. Bullock, 59 Fed. 87, 8 C. C. A. 14, and 
 Edward Hines Lumber Co. v. Alley, 73 Fed. 
 603, 19 C. C. A. 599, followed Hochster v. De 
 la Tour. In Horst v. Roehm, 84 Fed. 569, 
 Dallas, J., was of opinion that the question 
 was an open one, so far as the supreme court 
 was concerned, and followed the ruling of 
 Judge Lowell in Dingley v. Oler, 11 Fed. 372, 
 supported by the two federal cases last above 
 mentioned. He considered that Judge Lowell 
 had answered the argument of the court in 
 Daniels v. Newton, 114 Mass. 530, 19 Am. 
 Rep. 3S4 ; and concurred with him in think- 
 ing that the cases which follow the English 
 rule are "founded in good sense, and rest 
 on strong grounds of convenience however 
 difficult it may be to reconcile them with the 
 strictest logic." 
 
 Wallace, C. J., in Marks v. Van Eeghen, 
 85 Fed. S53, 30 C. C. A. 208, considered that 
 Dingley v. Oler, 117 U. S. 490, 6 Sup. Ct 
 S50, 29 L. Ed. 984, was a dictum, and that 
 there was an overwhelming preponderance of 
 adjudication in favor of the doctrine of Hoch- 
 ster v. De la Tour. He cited also Nichols 
 v. Steel Co., 137 N. Y. 471, 33 N. E. 561; 
 Kalkhoff v. Nelson, 60 Minn. 284, 62 N. W. 
 332 ; Davis v. School-Furniture Co., 41 W. 
 Va. 717, 24 S. E. 630. 
 
 In Roehm v. Horst 178 U. S. 1, 20 Sup. 
 Ct. 7S0, 44 L. Ed. 953, 4 Ann. Cas. 406, the 
 court reviewing the English and American 
 cases, held that, upon such breach, the oth- 
 er party may consider himself absolved from 
 any future performance, and either sue im- 
 mediately, or wait till the time when the act 
 was to be done, still holding the contract as 
 prospectively binding for the exercise of his 
 option. 
 
 In The Eliza Lines, 199 U. S. 119, 26 Sup. 
 Ct. 8, 50 L. Ed. 115, 4 Ann. Cas. 406, Holmes, 
 J., said: 'A repudiation of a contract 
 amounting to a breach, warrants the other 
 party in going no further in performance 
 on his side. Roehm v. Horst, 178 U. S. 1, 20 
 Sup. Ct. 780, 44 L. Ed. 953, 4 Ann. Cas. 406." 
 
 The rule adopted in Roehm v. Horst, 178 
 U. S. 1, 20 Sup. Ct. 780, 44 L. Ed. 953, 4 Ann. 
 Cas. 406, was applied in John A. Roebling's 
 Sons' Co. v. Fence Co., 130 111. 660, 22 N. E. 
 518; Windmuller v. Pope, 107 N. Y. 674, 14 
 N. E. 436 ; id., 12 N. Y. St. Rep. 292 ; Hock- 
 ing v. Hamilton, 158 Pa. 107, 27 Atl. 836; 
 McCormick v. Basal, 46 la. 235; Davis v. 
 Furniture Co., 41 W. Va. 717, 24 S. E. 630; 
 Remy v. Olds, 88 Cal. 537, 26 Pac. 355; 
 Kurtz v. Frank, 76 Ind. 594, 40 Am. Rep. 275. 
 
 The renunciation must be unequivocal and 
 absolute ; and must be acted upon by the oth- 
 er parties and must terminate the entire con- 
 tract; [1900] 2 Ch. 298; John A. Roebling's 
 Sons' Co. v. Fence Co., 130 111. 660, 22 N. 
 E. 518. It does not operate as a rescission 
 of the contract, because one party alone can- 
 not rescind; but the other party may adopt 
 such renunciation with the effect that the
 
 BREACH 
 
 391 
 
 BREACH 
 
 contract is at an end, except for the purpose 
 of bringing an action for the damages conse- 
 quent upon the renunciation; [1910] 2 Ch. 
 248. The rule in Hochster v. De la Tour was 
 disapproved in Daniels v. Newton, 114 Mass. 
 530, 19 Am. Rep. 3S4, and Stanford v. Mc- 
 Gill, 6 N. D. 536, 72 N. W. 938, 38 L. R. A. 
 7G0, on elaborate consideration. The rejec- 
 tion of the rule in the former case was based 
 upon its inapplicability to commercial paper, 
 but in Roehm v. Horst, 17S U. S. 17, 20 
 Sup. Ct. 7S0, 44 L. Ed. 953, it was pointed 
 out that in that case the consideration had 
 passed, there were no mutual obligations, and 
 that such case did not fall within the rea- 
 son of the rule, citing Nichols v. Steel Co., 
 137 N. Y. 487, 33 N. E. 561. 
 
 See Wald's Anson, Contracts (Williston's 
 ed.) 355. 
 
 Where a trust company agrees to mate a 
 loan upon a building to be built and later 
 repudiates the agreement, a right of action 
 arises at once and the prospective borrower 
 need not wait until the building is completed ; 
 Holt v. Ins. Co., 74 N. J. L. 795, 67 Atl. 118, 
 11 L. R. A. (N. S.) 100, 12 Ann. Cas. 1105. 
 In New York it is held that an action will 
 not lie at once where the maker of a draft 
 declares he will not pay it on maturity; 
 Benecke v. Haebler, 3S App. Div. 344, 58 N. 
 Y. Supp. 16 ; and so where an insurance com- 
 pany decides to limit the amount payable on 
 existing policies; Langan v. Supreme Coun- 
 cil, 174 N. Y. 266, 66 N. E. 932; Porter v. 
 Supreme Council, 1S3 Mass. 326, 67 N. E. 
 238; contra, O'Neill v. Supreme Council, 70 
 N. J. L. 410, 57 Atl. 463, 1 Ann. Cas. 4212. 
 
 In a contract for the purchase of a horse 
 in return for personal services for a specified 
 period, where the buyer refuses to work, the 
 seller may retake the horse; Cleary v. Mor- 
 son, 94 Miss. 27S, 4S South. 817 ; where one 
 cancels an order for clothing before it is 
 manufactured, the seller cannot complete the 
 manufacture and sue for the full contract; 
 he is bound to reduce his damages as far 
 as possible; Woolf v. Hamburger, 129 App. 
 Div. 883, 114 N. Y. Supp. 186. 
 
 Though a party has waived a breach for 
 which he could have declared a forfeiture, he 
 may still counterclaim damages for such 
 breach ; Clark v. West, 193 N. Y. 349, 86 N. 
 E. 1 ; neither payments on account, nor per- 
 mitting the contractor to complete the work 
 after the specified time, is a, waiver of such 
 damages; Reading Hardware Co. v. City of 
 New York, 129 App. Div. 292, 113 N. Y. Supp. 
 331 ; nor taking possession of a building be- 
 fore completion; Mikolajewski v. Pugell, 62 
 Misc. 449, 114 N. Y. Supp. 1084. But where 
 the defendant has himself repudiated the 
 contract after the delivery of one installment 
 he is barred from setting up the defective- 
 ness of such installment subsequently dis- 
 covered; 21 T. L. R. 413. Where govern- 
 ment officials test and accept a defective dock 
 
 in ignorance of such defects which if known 
 would have led to a refusal to accept, the 
 government is not precluded from refusing It 
 on subsequent discovery ; U. S. v. Walsh, 115 
 Fed. 697, 52 C. C. A. 419. 
 
 An anticipatory breach will operate as a 
 present breach only if accepted and acted up- 
 on by the other party, who may disregard 
 it and await the appointed day. If not ac- 
 cepted by the other party, the renunciation 
 may be withdrawn before performance is 
 due, but if not withdrawn it is evidence of a 
 continued intention to that effect. It oper- 
 ates as a continued waiver of all condi- 
 tions precedent to the liability for perform- 
 ance; Leake, Contract 0.j9. 
 
 As to one endea\oring to persuade a third 
 party to break his contract, see Injunction. 
 
 In Pleading. That part of the declaration 
 in which the violation of the defendant's con- 
 tract is stated. 
 
 It is usual in assumpsit to introduce the 
 statement of the particular breach, with the 
 allegation that the defendant, contriving and 
 fraudulently intending craftily and subtilely 
 to deceive and defraud the plaintiff, neglect- 
 ed and refused to perform, or performed, the 
 particular act, contrary to the previous stip- 
 ulation. 
 
 In debt, the breach or cause of action 
 complained of must proceed only for the non- 
 payment of money previously alleged to be 
 payable; and such breach is very similar 
 whether the action be in debt on simple con- 
 tract, specialty, record, or statute, and is 
 usually of the following form: "Yet the said 
 defendant, although often requested so to 
 do, hath not as yet paid the said sum of 
 dollars, above demanded, nor any part 
 
 thereof, to the said plaintiff, but hath hither- 
 to wholly neglected and refused so to do, 
 
 to the damage of the said plaintiff 
 
 dollars, and therefore he brings suit," etc. 
 
 The breach must obviously be governed 
 by the nature of the stipulation; it ought 
 to be assigned in the words of the contract, 
 either negatively or affirmatively, or in words 
 which are coextensive with its import and 
 effect; Comyns, Dig. Pleader, C, 45; 2 Wins. 
 Saund. 1S1 b, c; Fletcher v. Peck, 6 Cra. (U. 
 S.) 127, 3 L. Ed. 162. And see Hughes v. 
 Smith, 5 Johns. (N. Y.) 16S; Bender v. Froni- 
 berger, 4 Dall. (U. S.) 436, 1 L. Ed. 89S; 
 Craghill v. Page, 2 Hen. & M. (Ya.) 44U; 
 Steph. PI. (And. ed.) 115. 
 
 When the contract is in the disjunctive, 
 as on a promise to deliver a horse by a par- 
 ticular day. or to pay a sum of money, the 
 breach ought to be assigned that the de- 
 fendant did not do the one act nor the oth- 
 er; 1 Sid. 440; Hardr. 320; Comyns, Dig. 
 Pleader, C. 
 
 BREACH OF CLOSE. Every unwarrant- 
 able entry upon the soil of another is a 
 breach of his close; 3 Bla. Com. 209.
 
 BREACH OP COVENANT 
 
 392 
 
 BREACH OF TRUST 
 
 BREACH OF COVENANT. A violation 
 of, or a failure to perform the conditions of, 
 a bond or covenant. The remedy is in some 
 cases by a writ of covenant; in others, by 
 an action of debt; 3 Bla. Com. 156. 
 
 BREACH OF THE PEACE. A violation 
 of public order; the offence of disturbing 
 the public peace. One guilty of this offence 
 may be held to bail for his good behavior. 
 An act of public indecorum is also a breach 
 of the peace. The remedy for this offence is 
 by indictment. 
 
 Persons who go out on a "strike*' and then 
 linger about the place of their former em- 
 ployment, hooting at others taking their plac- 
 es, may be bound over to keep the peace; 
 Com. v. Silvers, 11 Pa. Co. C. R. 481. One 
 may disturb the peace while on his own 
 premises by the use of violent language to a 
 person lawfully there; State v. Brumley, 53 
 Mo. App. 126. 
 
 BREACH OF PRISON. An unlawful es- 
 cape out of prison. This is of itself a mis- 
 demeanor; 1 Russell, Cr. 37S; 4 Bla. Com. 
 129; 2 Hawk. PI. Cr. c. 18, s. 1; State v. 
 Leach, 7 Conn. 452, 18 Am. Dec. 113. The 
 remedy for this offence is by indictment. 
 See Escape. 
 
 BREACH OF PROMISE OF MARRIAGE. 
 See Promise of Marriage. 
 
 BREACH OF TRUST. The wilful misap- 
 propriation, by a trustee, of a thing which 
 had been lawfully delivered to him in confi- 
 dence. 
 
 The distinction between larceny and a breach of 
 trust is to be found chiefly in the terms or way in 
 which the thing was taken originally into the party's 
 possession ; and the rule seems to be, that when- 
 ever the article is obtained upon a fair contract not 
 for a mere temporary purpose, or by one who is in 
 the employment of the deliverer, then the subse- 
 quent misappropriation is to be considered as an act 
 of breach of trust. This rule is, however, subject 
 to many nice distinctions. Lewer v. Com., 6 S. & 
 R. (Pa.) 93, 97. It has been adjudged that when the 
 owner of goods parts with the possession for a par- 
 ticular purpose, and the person who receives them 
 avowedly for that purpose has at the time a fraud- 
 ulent intention to make use of the possession as a 
 means of converting the goods to his own use, and 
 does so convert them, it is larceny ; but if the own- 
 er part with the property, although fraudulent 
 means have been used to obtain it, the act of con- 
 version is not larceny ; Alison, Princ. c. 12, p. 334. 
 
 In the Year Book 21 Hen. VII. 14, the distinction 
 is thus stated: — "Pigot. If I deliver a jewel or 
 money to my servant to keep, and he flees or goes 
 from me with the jewel. Is it felony? Cutler said, 
 Yes: for so long as he is with me or in my house, 
 that which I have delivered to him is adjudged to 
 be in my possession ; as my butler, who has my 
 plate in keeping, if he flees with it, it is felony. 
 Same law, if he who keeps my horse goes away with 
 him. The reason is, they are always in my posses- 
 sion. But if I deliver a horse to my servant to ride 
 to market or the fair, and he flee with him, it is no 
 felony; for he comes lawfully to the possession of 
 the horse by delivery. And so it is if I give him a 
 jewel to carry to London, or to pay one, or to buy a 
 thing, and he flee with it, it is not felony ; for it is 
 out of my possession, and he comes lawfully to it. 
 Pigot. It can well be ; for the master in these cases 
 has an action against him, viz.: Detinue, or Ac- 
 count," See this point fully discussed in Stanford, 
 
 PI. Cr. lib. 1. See also Year B. Edw. IV. fol. 9 ; 52 
 Hen. III. 7; 21 Hen. VII. 15. See Breaking Bulk. 
 
 BREAKING. Parting or dividing by force 
 and violence a solid substance, or piercing, 
 penetrating, or bursting through the same. 
 
 In cases of burglary and housebreaking, 
 the removal of any part of the house, or 
 of the fastenings provided to secure it, with 
 violence and a felonious intent. 
 
 The breaking is actual, as in the above 
 case; or constructive, as when the burglar 
 or housebreaker gains an entry by fraud, 
 conspiracy or threat; "Whart Cr. L. 759; 1 
 Hale, PI. Cr. 553; State v. Wiseman, 68 
 N. C. 207; Johnston v. Com., 85 Pa. 54, 27 
 Am. Rep. 622; Com. v. Lowrey, 158 Mass. 18, 
 32 N. E. 940; lifting a latch in order to en- 
 ter a building is a breaking; State v. O'Brien, 
 
 81 la. 93, 46 N. W. 861. In England it has 
 been decided that if the sash of a window 
 be partly open, but not sufficiently so to ad- 
 mit a person, the raising of it so as to ad- 
 mit a person is not a breaking of the house; 
 1 Mood. 178; followed in Com. v. Strupney, 
 105 Mass. 5S8, 7 Am. Rep. 556. See People 
 v. Dupree, 98 Mich. 26, 56 N. W. 1046. No 
 reasons are assigned. It is difficult to con- 
 ceive, if this case be law, what further open- 
 ing will amount to a breaking. But see 1 
 Moody 327, 377; 1 B. & H. Lead. Cr. Cas. 
 524. See Burglary. 
 
 It was doubted, under the ancient common law, 
 whether the breaking out of a dwelling-house in the 
 night-time was a breaking sufficient to constitute 
 burglary. Sir M. Hale thinks that this was not 
 burglary, because fregit et exivit, non fregit et 
 intravit; 1 Hale, PI. Cr. 554; Rolland v. Com., 
 
 82 Pa. 324, 22 Am. Rep. 758 ; see Brown v. State, 55 
 Ala. 123, 28 Am. Rep. 693. It may, perhaps, be 
 thought that a breaking out is not so alarming as 
 a breaking in, and, indeed, may be a relief to the 
 minds of the inmates; they may exclaim, as Cicero 
 did of Catiline, Magno me tnetu liberabis, dummodo 
 inter me atque te murus intersit. But this breaking 
 was made burglary by the statute 12 Anne, c. 1, § 7 
 (1713). The getting the head out through a sky- 
 light has been held to be a sufficient breaking out of 
 a house to complete the crime of burglary; 1 Jebb 
 99. The statute of 12 Anne is too recent to be bind- 
 ing as a part of the common law in all of the United 
 States; 2 Bish. Crim. L. § 99; 1 B. & H. Lead. Cr. 
 Cas. 540. 
 
 BREAKING BULK. The doctrine of 
 breaking bulk proceeds upon the ground of 
 a determination of the privity of the bail- 
 ment by the wrongful act of the bailee. 
 Thus, where a carrier had agreed to carry 
 certain bales of goods, which were delivered 
 to him, to Southampton, but carried them 
 to another place, broke open the bales, and 
 took the goods contained in them feloniously 
 and converted them to his own use, the ma- 
 jority of the judges held that if the party 
 had sold the entire bales it would not have 
 been felony; "but as he broke them, and 
 took what was in them, he did it without 
 warrant," and so was guilty of felony; Y. 
 B. 13 Edw. IV. fol. 9. If a miller steals part 
 of the meal, "although the corn was deliv- 
 ered to him to grind, nevertheless if he steal
 
 BREAKING BULK 
 
 393 
 
 BAET11I:1-_s* 
 
 It It is felony, being taken from the rest;" 1 
 Rolle, Abr. 73, pi. 16 ; Com. v. James, 1 Pick. 
 (Mass.) 375. This construction involves the 
 absurd -consequence of its being felony to 
 steal part of a package, but a breach of trust 
 to steal the whole. 
 
 In an early case in Massachusetts, it was 
 decided that if a wagon-load of goods, con- 
 sisting of several packages, is delivered to 
 a common carrier to be transported in a 
 body to a certain place, and he, with a fe- 
 lonious intent, separates one entire package, 
 whether before or after the delivery of the 
 other packages, this is a suificient breaking 
 of bulk to constitute larceny, without any 
 breaking of the package so separated ; Com. 
 v. Brown, 4 Mass. 580. But this decision is 
 in direct conflict with the English cases* 
 Thus, where the master and owner of a ship 
 steals a package out of several packages de- 
 livered him to carry, without removing any- 
 thing from the particular package; 1 Russ. 
 & R. 92; or where a letter-carrier is in- 
 trusted with two directed envelopes, each 
 containing a 51. note, and delivers the en- 
 velopes, having previously taken out the two 
 notes; 1 Den. Cr. Cas. 215; or where a 
 drover separates one sheep from a flock in- 
 trusted to him to drive a certain distance; 
 1 Jebb. 51; this is not a breaking of bulk 
 sufficient to terminate the bailment and to 
 constitute larceny; 2 Bish. Cr. L. 860, 868. 
 The Larceny Act of 1861 has met the diffi- 
 culty of deciding this class of cases in Eng- 
 land, by providing that a bailee of any chat- 
 tel, money, or valuable security, who fraud- 
 ulently takes the same, although not break- 
 ing bulk, shall be guilty of larceny. 
 
 BREAKING DOORS. Forcibly removing 
 the fastenings of a house so that a person 
 may enter. See Arrest. 
 
 BREATH. In Medical Jurisprudence. The 
 air expelled from the chest at each expira- 
 tion. 
 
 Breathing, though a usual sign of life, is 
 not conclusive that a child was icholly born 
 alive; as breathing may take place before 
 the whole delivery of the mother is com- 
 plete; 5 C. & P. 329. See Birth; Life; In- 
 fanticide. 
 
 BREHON LAW. The ancient system of 
 Irish law; so named from the judges, called 
 Brehons, or Breitheamhuin. Its existence 
 has been traced from the earliest period of 
 Irish history down to the time of the Anglo- 
 Norman invasion. It is still a subject of 
 antiquarian research. An outline of the sys- 
 tem will be found in Knight's English Cy- 
 clopaedia, and also in the Penny Cyclopaedia. 
 See Encyc. Brit. 
 
 BRETHREN. It is used in the sense of 
 brother. 
 
 It may be legitimately used in addressing 
 mixed numbers, although such use is un- 
 
 usual ; it may include a daughter ; Terry v. 
 Brunson, 1 Rich. Eq. (S. C.j 78. It is so used 
 in the Protestant Episcopal Prayer Book. 
 
 BRETHREN OF TRINITY HOUSE. See 
 
 Elder Brethren. 
 
 BRETTS AND SCOTTS, LAWS OF THE. 
 A code or system of laws in use among the 
 Celtic tribes of Scotland down to the begin- 
 ning of the fourteenth century, and then 
 abolished by Edward I. A fragment only 
 is now extant. See Acts of Pari, of Scot- 
 land, vol. 1, pp. 299-301, Edin. 1844. It is 
 interesting, like the Brehon laws of Ireland, 
 in a historical point of view. 
 
 BREVE (Lat. breve, brevis, short). A 
 writ. An original writ. Any writ or pre- 
 cept issuing from the king or his courts. 
 
 It Is the Latin term which in law is translated 
 by "writ." In the Roman law these brevia were in 
 the form of letters ; and this form was also given to 
 the early English brevia, and is retained to some 
 degree in the modern writs. Spelman, Gloss. The 
 name breve was given because they stated briefly 
 the matter in question (rem qua est breviter nar- 
 rat). It was said to be "shaped in conformity to a 
 rule of law" (formatum ad similitudinem regulae 
 juris) ; because it was requisite that It should state 
 facts against the respondent bringing him within 
 the operation of some rule of law. The whole pas- 
 sage from Bracton is as follows: "Breve quidem, 
 cum sit formatum ad similitudinem regular juris 
 quia breviter et paucis verbis intentionem profer- 
 entes exponit, et explanat sicut regula juris rem 
 qua est breviter narrat. Non tamen ita breve esse 
 debet, quin rationem et vim intentionis continent." 
 Bracton 413 b, § 2. It is spelled briefe by Brooke. 
 Each writ soon came to be distinguished by some 
 Important word or phrase contained in the brief 
 statement, or from the general subject-matter ; and 
 this name was in turn transferred to the form of 
 action, in the prosecution of which the writ (or 
 breve) was procured. Stephen, PI. 9. See Writ. 
 It is used perhaps more frequently in the plural 
 (brevia) than in the singular, especially in speak- 
 ing of the different classes of writs. 
 
 BREVE INNOMINATUM. A writ contain- 
 ing a general statement only of the cause of 
 action. 
 
 BREVE NOMINATUM. A writ containing 
 a statement of the circumstances of the ac- 
 tion. 
 
 BREVE ORIGINALE. An original writ. 
 
 BREVE DE RECTO. A writ of right 
 The writ of right patent is of tlie highest 
 nature of any in the law. Cowell ; Fitzherb. 
 Nat. Brev. 
 
 BREVE TESTATUM. A written memo- 
 randum introduced to perpetuate the tenor 
 of the conveyance and investiture of lands. 
 2 Bla. Com. 307. 
 
 It was prepared after the transaction, and 
 depended for its validity upon the testimony 
 of witnesses, as it was not sealed. Spelman, 
 Gloss. 
 
 In Scotch Law. A similar memorandum 
 made out at the time of the transfer, attest- 
 ed by the pares curiw and by the seal of 
 the superior. Bell, Diet. 
 
 BREVET. In French Law. A warrant
 
 BREVET 
 
 394 
 
 BBEVIAK1UM ALARICIANUM 
 
 granted by government to authorize an in- 
 dividual to do something for his own benefit. 
 
 Brevet d' invention. A patent. 
 
 In American Law. A commission confer- 
 ring on a military officer a degree of rank 
 specified in the commission, without, how- 
 ever, conveying a right to receive corre- 
 sponding pay. See U. S. v. Hunt, 14 Wall. 
 (U. S.) 552, 20 L. Ed. 739. 
 
 BR E VI A (Lat). Writs. The plural of 
 breve, which see. 
 
 BREVIA ANTICIPANTIA (Lat). Writs 
 of prevention. See Quia Timet. 
 
 BREVIA DE CURSU (Lat). Writs of 
 course. See Beevia Fobmata. 
 
 BREVIA FORMATA (Lat). Certain 
 writs of approved and established form which 
 were granted of course in actions to which 
 they were applicable, and which could not 
 be changed but by consent of the great coun- 
 cil of the realm. Bracton 413 b. 
 
 All original writs, without which an action could 
 not anciently be commenced, issued from the chan- 
 cery. Many of these were of ancient and established 
 form, and could not be altered; others admitted of 
 variation by the clerks according to the circum- 
 stances of the case. In obtaining a writ, a praecipe 
 was issued by the party demandant, directed to the 
 proper officer in chancery, stating the substance of 
 his claim. If a writ already in existence and en- 
 rolled upon the Register was found exactly adapted 
 to the case, it issued as of course (de cursu), being 
 copied out by the junior clerks, called cursitors. If 
 none was found, a new writ was prepared by the 
 chancellor and subjected to the decision of the 
 grand council, their assent being presumed in some 
 cases if no objection was made. In 1250 it was pro- 
 vided that no new writs should issue except by 
 direct command of the king or the council. The 
 clerks, however, it is supposed, still exercised the 
 liberty of adapting the old forms to cases new only 
 in the instance, the council, and its successor (in 
 this respect, at least), parliament, possessing the 
 power to make writs new in principle. The strict- 
 ness with which the common-law courts, to which 
 the writs were returnable, adhered to the ancient 
 form, gave occasion for the passage of the Stat. 
 Westm. 2, c. 24, providing for the formation of new 
 writs. Those writs which were contained in the 
 Register are generally considered as pre-eminently 
 brevia formata. 
 
 BREVIA JUDICIALIA (Lat). Judicial 
 writs. Subsidiary writs issued from the 
 court during the progress of an action, or in 
 execution of the judgment 
 
 They were said to vary according to the variety 
 of the pleadings and responses of the parties to the 
 action; Bract. 413 6; Fleta, lib. 2, c. 13, § 3; Co. 
 Litt. 54 o, 73 6. The various forms, however, be- 
 came long since fixed beyond the power of the 
 courts to alter them; Barnet v. Ihrie, 1 Rawle (Pa.) 
 52. Some of these judicial writs, especially that of 
 capias, by a fiction of the issue of an original writ, 
 came to supersede original writs entirely, or nearly 
 so. See Original Writ. 
 
 BREVIA MAGISTRALIA. Writs framed 
 by the masters in chancery. They were sub- 
 ject to variation according to the diversity 
 of cases and complaints. Bracton, 413 b ; 
 Fleta, lib. 2, c. 13, § 4. 
 
 BREVIA TESTATA. See Breve Testa- 
 tum. 
 
 BREVIARIUM ALARICIANUM. A compi- 
 lation made by order of Alaric II. and pub- 
 lished for the use of his Roman subjects in 
 the year 506. It contained large excerpts 
 from the Theodosian Codex, a few from the 
 Gregorianus and Hermogenianus, some post- 
 Theodosian constitutions, some of the Sen- 
 tential of Paulus, one little scrap of Papinian 
 and an abridged version of the Institutes of 
 Gaius. Maitland, 1 Sel. Essays in Anglo- 
 Amer. L. H. 15 (14 L. Q. R. 13). It is also 
 known as Lex Romana Visigothontm. It be- 
 came the principal, if not the only, repre- 
 sentative of Roman law among the Franks. 
 id. 
 
 BREVIATE. An abstract or epitome of a 
 writing. Holthouse. The name is usually 
 applied to the famous brief of Mr. Murray 
 (afterwards Lord Mansfield) for the com- 
 plainant in the case of Penn v. Lord Balti- 
 more, 1 Ves. 444. A copy of the original 
 printed folio is in the Pennsylvania Histori- 
 cal Society and it is reprinted in the Penn- 
 sylvania Archives, making volume 16 of the 
 Third Series. 
 
 BREVIBUS ET ROTULIS LIBERANDIS. 
 
 A writ or mandate directed to a sheriff, com- 
 manding him to deliver to his successor the 
 county and the appurtenances, with all the 
 briefs, rolls, remembrances, and other things 
 belonging to his office. 
 
 BRIBE. The gift or promise, which is ac- 
 cepted, of some advantage as the inducement 
 for some illegal act or omission ; or of some 
 illegal emolument, as a consideration for 
 preferring one person to another, in the per- 
 formance of a legal act. 
 
 BRIBERY. The receiving or offering any 
 undue reward by or to any person whom- 
 soever, whose ordinary profession or busi- 
 ness relates to the administration of public 
 justice, in order to influence his behavior 
 in office, and to incline him to act contrary 
 to his duty and the known rules of honesty 
 and integrity. Co. 3d Inst 149; 1 Hawk. 
 PI. Cr. c. 67, s. 2; 4 Bla. Com. 139; State 
 v. Ellis, 33 N. J. L. 102, 97 Am. Dec. 707; 
 Dishon v. Smith, 10 la. 212. 
 
 The term bribery now extends further, and in- 
 cludes the offence of giving a bribe to many other 
 classes of officers; it applies both to the actor and 
 receiver, and extends to voters, cabinet ministers, 
 legislators, sheriffs, and other classes; 2 Whart. Cr. 
 L. § 1S58. The offence of the giver and the receiver 
 of the bribe has the same name. For the sake of 
 distinction, that of the former — viz.: the briber — 
 might be properly denominated active bribery ; 
 while that of the latter — viz.: the person bribed — 
 might be called passive bribery. 
 
 Bribery consists in offering a present or 
 receiving one ; extortion is demanding a fee 
 or present by color of office ; State v. Pritch- 
 ard, 107 N. C. 921, 12 S. E. 50. 
 
 Bribery at elections for members of par- 
 liament has always been a crime at common 
 law, and punishable by indictment or infor- 
 mation. It still remains so in England, not-
 
 BRIBERY 
 
 305 
 
 BRIDGE 
 
 withstanding the stat. 24 Geo. II. c. 14; 3 
 Burr. 1340, 1589. So is payment or promise 
 of payment for votes at an election of an as- 
 sistant overseer of a parish ; 16 Cox, C. C. 
 737. To constitute the offence, it is not nec- 
 essary that the person bribed should in fact 
 vote as solicited to do ; 3 Burr. 123G; or 
 even that he should have a right to vote at 
 all ; both are entirely immaterial ; 3 Burr. 
 1590 ; State v. Ellis, 33 N. J. L. 102, 97 Am. 
 Dec. 707; or that he acted without juris- 
 diction; People v. Jackson, 191 N. Y. 293, 
 84 N. E. 65, 15 L. R. A. (N. S.) 1173, 14 Ann. 
 Cas. 243. 
 
 Bribery of a voter consists in the offering 
 of a reward or consideration for his vote or 
 his failure to vote; Nichols v. Mudgett, 32 
 Vt 546 ; State v. Jackson, 73 Me. 91, 40 Am. 
 Rep. 342; Walsh v. People, 65 111. 58, 16 
 Am. Rep. 569 ; 15 Q. B. 870. 
 
 An attempt to bribe, though unsuccessful, 
 has been held criminal ; U. S. v. Worrall, 2 
 Dall. (Pa.) 3S4, Fed. Cas. No. 16,766, 1 L. Ed. 
 426; 4 Burr. 2500; Co. 3d Inst. 147; State 
 v. Ellis, 33 N. J. L. 102, 97 Am. Dec. 707; 
 Com. v. Chapman, 1 Va. Cas. 138. In Illinois 
 a proposal by an officer to receive a bribe, 
 though not bribery, was held to be an indict- 
 able misdemeanor at common law ; 21 Am. 
 L. Reg. 617 (with note by Judge Redfield) ; 
 s. c. Walsh v. People, 65 111. 58, 16 Am. Rep. 
 569; but it has been held that upon such a 
 proposal by an officer, one offering him a 
 bribe was not punishable; O'Brien v. State, 
 6 Tex. App. 665. Keeping open house for the 
 entertainment of the members of the legisla- 
 ture is not bribery ; Randall v. News Ass'n, 
 97 Mich. 136, 56 N. W. 361. 
 
 On the trial of an officer for bribery for 
 taking unlawful fees, a corrupt intent must 
 be proved ; State v. Pritchard, 107 N. C. 921, 
 12 S. E. 50. 
 
 A writing containing a statement that a 
 person has been bribed to testify as a wit- 
 ness imputes to such person the crime of 
 perjury and is libelous; Atlanta News Pub- 
 lishing Co. v. Medlock, 123 Ga. 714, 51 S. E. 
 756, 3 L. R. A. (N. S.) 1139; Hillhouse v. 
 Dunning, 6 Conn. 391. 
 
 See Lobbyist; Corrupt Practices. 
 BRIB0UR. One who pilfers other men's 
 goods ; a thief. See 28 Edw. II. c. 1. 
 
 BRIDGE. A structure erected over a riv- 
 er, creek, stream, ditch, ravine, or other place 
 to facilitate the passage thereof; including 
 by the term both arches and abutments; 
 Board of Chosen Freeholders of Sussex 
 County v. Strader, 18 N. J. L. 108, 35 Am. 
 Dec. 530; Bardwell v. Town of Jamaica, 15 
 Vt. 438 ; Daniels v. Intendent & Wardens of 
 Athens, 55 Ga. 609; and approaches of the 
 length of ISO feet on either side of it ; 71 L. 
 T. 430 ; and the roadway over it ; 57 L. J. 
 Q. B. 2S0. The embankment contiguous to a 
 bridge is a part of it; Morgan County v. 
 Glass, 139 Ga. 415, 77 S. E. 583. A railway 
 
 viaduct, designed only for the passage of en- 
 gines and cars, is not a "bridge," within the 
 statutory meaning of that word ; Bridge- 
 Proprietors v. Land & Improvement Co., 1 
 Wall. (U. S.) 116, 17 L. Ed. 571. See Lake 
 v. R. Co., 7 New 294; Whitall v. Board of 
 Chosen Freeholders of Gloucester County, 40 
 N. J. L. 305. 
 
 A bridge may be a street; 26 L. J. Q. B. 
 11. It is a public highway ; Murphy v. Vil- 
 lage of Ft. Edward, 79 Misc. 296, 140 N. Y. 
 Supp. 885. 
 
 Bridges are either public or private. Public 
 bridges are such as form a part of the highway, 
 common, according to their character as foot, horse, 
 or carriage bridges, to the public generally, with or 
 without toll ; 2 East 342 ; though their use may be 
 limited to particular occasions, as to seasons of 
 flood or frost; 2 Maule & S. 262; 4 Campb. 189. 
 They are established either by legislative authority 
 or by dedication. 
 
 By legislative authority. By the Great 
 Charter (9 Hen. III. c. 15), in England, no 
 town or freeman can be compelled to make 
 new bridges where never any were before, 
 but by act of parliament. Lnder such act, 
 they may be erected and maintained by cor- 
 porations chartered for the purpose, or by 
 counties, or in whatever other mode may be 
 prescribed; Woolrych, Ways 196. In this 
 country it is the practice to charter compa- 
 nies for the same purpose, with the right to 
 take tolls for their reimbursement; Wil- 
 liams v. Turnpike Corporation, 4 Pick. (Mass.) 
 341; or to erect bridges at the state's ex- 
 pense; or by general statutes to impose the 
 duty of erection and maintenance upon 
 towns, counties, or districts ; Com. v. Com'rs 
 of Monroe County, 2 W. & S. (Pa.) 495; 
 Sampson v. Goochland Justices, 5 Gratt. 
 (Va.) 241; Town of Granby v. Thurston, 23 
 Conn. 416 ; Nelson County Court v. Washing- 
 ton County Court, 14 B. Monr. (Ky.) 92; 
 Lobdell v. Inhabitants of New Bedford, 1 
 Mass. 153; Hill v. Board of Sup'rs of Liv- 
 ingston County, 12 N. Y. 52 ; State v. Town 
 of Campton, 2 N. H. 513; Town of Water- 
 ville v. Kennebec County Com'rs, 59 Me. 80. 
 In re Saw-Mill Run Bridge, S3 Pa. 163 ; State 
 v. Titus, 47 N. J. L. 89. For their erection 
 the state may take private property, upon 
 making compensation, as in case of other 
 highways; Ang. Highw. § SI; the rule of 
 damages for land so taken being not its mere 
 value for agricultural purposes, but its value 
 for a bridge site, minus the benefits derived 
 to the owner from the erection ; Young v. 
 Harrison, 17 Ga. 30. The right to e»ed a 
 bridge upon the land of another may also be 
 acquired by mere parol license, which, when 
 acted upon, becomes irrevocable ; Ameriscog- 
 gin Bridge v. Bragg, 11 N. H. 102 ; Hall v. 
 Boyd, 14 Ga. 1. But see Foster v. Browning, 
 4 R. I. 47, 67 Am. Dec. 505. The franchise 
 of a toll bridge or ferry may be taken, like 
 other property, for a free bridge; West Riv- 
 er Bridge Co. v. l»ix, 6 How. (U. S.) 507, 12 
 L. Ed. 535; Central Bridge Corporation v.
 
 BRIDGE 
 
 396 
 
 BRIDGE 
 
 Lowell, 4 Gray (Mass.) 474; State v. Can- 
 terbury, 28 N. H. 195; and, when vested in 
 a town or other public corporation, may be 
 so taken without compensation ; Town of 
 East Hartford v. Bridge Co., 10 How. (U. S.) 
 511, 13 L. Ed. 518. 
 
 A new bridge may be erected, under legis- 
 lative authority, so near an older bridge or 
 ferry as to impair or destroy its value, 
 without compensation, unless the older fran- 
 chise be protected by the terms of its grant; 
 Proprietors of Charles River Bridge v. War- 
 ren Bridge, 11 Pet. (U. S.) 420, 9 L. Ed. 773; 
 id., 7 Pick. (Mass.) 344; Thompson v. R. Co., 
 3 Sandf. Ch. (N. Y.) 625; Piatt v. Bridge 
 Co., 8 Bush (Ky.) 31; Parrot v. Lawrence, 2 
 Dill. 332, Fed. Cas. No. 10,772 ; 21 Can. S. C. 
 R. 456; The Binghamton Bridge, 3 Wall. 
 (U. S.) 51, 18 L. Ed. 137; but, unless au- 
 thorized by statute, a new bridge so erected 
 is unlawful, and may be enjoined as a 
 nuisance; 3 Bla. Com. 21S ; 2 Cr. M. & R. 
 432; Norris v. Farmers' & Teamsters' Co., 
 6 Cal. 590, 65 Am. Dec. 535; Proprietors of 
 Charles River Bridge v. Proprietors of War- 
 ren Bridge, 11 Pet. (U. S.) 621, 9 L. Ed. 773. 
 And if the older franchise, vested in an in- 
 dividual or private corporation, be protected, 
 or be exclusive within given limits, by the 
 terms of its grant, the erection of a new 
 bridge or ferry, even under legislative au- 
 thority, is unconstitutional, as an act im- 
 pairing the obligations of contract; Propri- 
 etors of Piscataqua Bridge v. New Hamp- 
 shire Bridge, 7 N. H. 35; Enfield Toll Bridge 
 Co. v. R. Co., 17 Conn. 40, 42 Am. Dec. 716; 
 Mayor, etc., of City of Columbus v. Rodgers, 
 10 Ala. 37. See 21 Can. S. C. R. 456. The 
 entire expense of a bridge erected within a 
 particular district may be assessed upon the 
 inhabitants; Shaw v. Dennis, 5 Gilman (111.) 
 405; Town of Granby v. Thurston, 23 Conn. 
 416. The absolute control of navigable 
 streams in the United States is vested in 
 congress; Miller, Const. 457; but in the ab- 
 sence of legislation by congress a state has 
 the right to erect a bridge over a navigable 
 ' river within its own limits; Gilman v. Phila- 
 delphia, 3 Wall. (U. S.) 713, 18 L. Ed. 96; 
 Com. v. Breed, 4 Pick. (Mass.) 460; Works 
 v. R. Co., 5 McLean 425, Fed. Cas. No. 
 18,046; Dugan v. Bridge Co., 27 Pa. 303, 67 
 Am. Dec. 464; People v. R. Co., 15 Wend. 
 (N. Y.) 113, 30 Am. Dec. 33; and so may a 
 county; In re Waverly Borough's Bridge, 12 
 Pa. Co. Ct. 669; although in exercising this 
 right, care must be taken to interrupt navi- 
 gation as little as possible ; State v. Inhabit- 
 ants of Freeport, 43 Me. 198; Renwick v. 
 Morris, 3 Hill (N. Y.) 621; Terre-Haute 
 Drawbridge Co. v. Halliday, 4 Ind. 36 ; Com. 
 v. Proprietors of New Bedford Bridge, 2 
 Gray (Mass.) 339; Columbus Ins. Co. v. Ass'n, 
 6 McLean 70, Fed. Cas. No. 3,046 ; Columbus 
 Ins. Co. v. Curtenius, 6 McLean 209, Fed. 
 Cas. No. 3,045. 
 The erection of a bridge entirely within a 
 
 state across a navigable river running part- 
 ly witnin and partly without the state is not 
 a matter so directly connected with inter- 
 state commerce as to be under the exclusive 
 control of congress, and in the absence of 
 congressional action the state has authority 
 to regulate the same; Rhea v. R. Co., 50 
 Fed. 16. 
 
 A state has no power to fix tolls on a 
 bridge connecting it with another state, 
 thereby regulating charges on interstate com- 
 merce without the consent of congress or 
 the concurrence of such other state. The 
 chief justice and three associate justices 
 concurred on the ground that concurrent 
 acts of the state incorporating the bridge 
 company and authorizing it to fix tolls con- 
 stituted a contract between the corporation 
 and both states which could not be altered 
 by one state without the consent of the oth- 
 er; Covington & Cincinnati Bridge Co. v. 
 Com., 154 U. S. 204, 224, 14 Sup. Ct. 1087, 38 
 L Ed. 962. The power of erecting a bridge, 
 and taking tolls thereon, over a navigable 
 river forming the boundary between two 
 states, can only be conferred by the concur- 
 rent legislation of both; President, etc., for 
 Erecting a Bridge near Trenton v. Bridge 
 Co., 13 N. J. Eq. 46; Dover v. Portsmouth 
 Bridge, 17 N. H. 200. 
 
 A bridge is no less a means of commercial 
 intercourse than a navigable stream, and the 
 state power may properly determine whether 
 the interruption to commerce occasioned by 
 the bridge be not more than compensated 
 by the facilities which it affords. And if 
 the bridge be authorized in good faith by a 
 state, the federal courts are not bound to 
 enjoin it. However, congress, since its 
 power to regulate commerce is supreme, 
 may interpose whenever it may see fit, by 
 general or special laws, and may prevent the 
 building of a bridge, or cause the removal 
 of one already erected; Gilman v. Philadel- 
 phia, 3 Wall. (U. S.) 713, 18 L. Ed. 96; The 
 Passaic Bridges, 3 Wall. (U. S.) 782, 16 L. 
 Ed. 799; Silliman v. Bridge Co., 4 Blatchf. 
 74, Fed. Cas. No. 12,851 ; Id., 4 Blatchf. 395, 
 Fed. Cas. No. 12,852 ; The Clinton Bridge, 10 
 Wall. (U. S.) 454, 19 L. Ed. 969; or it may 
 authorize the erection of a bridge over a 
 navigable river, although it may partially 
 obstruct the free navigation; People v. Kelly, 
 76 N. Y. 475. So railroads, having become 
 the principal instruments of commerce, are 
 as much under the control of congress as 
 navigable streams, and a railroad bridge 
 might be authorized by congress ; In re Clin- 
 ton Bridge, 1 Woolw. 150, Fed. Cas. No. 
 2,900; which has power directly or through 
 a corporation created for the purpose to 
 construct bridges over navigable waters be- 
 tween states, for the purpose of interstate 
 commerce by land ; Luxton v. Bridge Co., 153 
 U. S. 525, 14 Sup. Ct. 891, 38 L. Ed. 808 ; or 
 it may grant such rights to an existing cor- 
 poration; Haeussler v. City of St. Louis, 205
 
 BRIDGE 
 
 397 
 
 BRIDGE 
 
 Mo. 656, 103 S. W. 1034; the bridge across 
 East River between New York and Brooklyn 
 is authorized by acts of New York and of 
 congress and cannot be declared to be a 
 public nuisance, even though it may injuri- 
 ously affect the business of a warehouseman 
 on the banks of the river above the bridge; 
 Miller v. New York, 109 U. S. 385, 3 Sup. 
 Ct. 228, 27 L. Ed. 971. See also on the sub- 
 ject at large Miller, Const. U. S. Lect. ix. 
 For any unecessary interruption the pro- 
 prietors of the bridge will be liable in dam- 
 ages to the persons specially injured there- 
 by, or to have the bridge abated as a nui- 
 sance, by injunction, though not by indict- 
 ment; such bridge, although authorized by 
 state laws, being in contravention of rights 
 secured by acts of congress regulating com- 
 merce; Pennsylvania v. Bridge Co., 13 How. 
 (U. S.) 51S. 14 L. Ed. 249; 1 W. ft M. 401; 
 Works v. Junction Railroad, 5 McLean 425, 
 Fed. Cas. No. 18,046; Columbus Ins. Co. v. 
 Bridge Ass'n, 6 McLean 70, Fed. '"as. No. 
 3,046; Jolly v. Drawbridge Co., 6 McLean 
 237, Fed. Cas. No. 7,441. 
 
 Dedication. The dedication of bridges de- 
 pends upon the same principles as the dedi- 
 cation of highways, except that their ac- 
 ceptance will not be presumed from mere 
 use, until they are proved to be of public 
 utility; 5 Burr. 2594; State v. Town of Camp- 
 ton, 2 N. H. 513; Williams v. Cummington, 
 18 Pick. (Mass.) 312; 3 M. & S. 526. See 
 Town of Dayton v. Town of Rutland, 84 
 111. 279, 25 Am. Rep. 457; State v. Bridge 
 Co., 22 Kan. 43S ; Highways. 
 
 Repairs to. At common law, all public 
 bridges are primd facie to be repaired by the 
 inhabitants of the county, without distinc- 
 tion of foot, horse, or carriage bridges, un- 
 less they can show that others are bound 
 to repair particular bridges ; 13 East 95 ; 
 Bacon, Abr. Bridges, p. 533; 5 Burr. 2594. 
 In this country, the common law not pre- 
 vailing, the duty of repair is. imposed by 
 stattite, generally, upon towns or counties; 
 State v. Town of Franklin, 9 Conn. 32; State 
 v. Campton, 2 N. H. 513: Hill v. Livingston 
 County, 12 N. Y. 52; House v. Board of 
 Com'rs, 60 Ind. 580, .28 Am. Rep. 657; Town- 
 ship bf Newlin v. Davis. 77 Pa. 317; Hedges 
 v. Madison County, 1 Gilman (111.) 567; Bard- 
 well v. Town of Jamaica, 15 Vt. 438; Saun- 
 ders v. Hathaway, 25 N. C. 402; Waterville 
 v. Kennebec County, 59 Me. SO; McCalla v. 
 Multnomah County, 3 Or. -121; Agawam v. 
 Hampden, 130 Mass. 528', or chartered cities; 
 Shartle v. Minneapolis. 17 Minn. 308 (Gil. 
 284); Holmes v. Hamburg, 47 la. 34S ; except 
 that bridges owned by corporations or in- 
 dividuals are reparable by tbeir proprietors; 
 Williams v. Bridge & Turnpike Corp., 4 
 Pick. (Mass.) 341 ; Ward v. Turnpike Co., 20 
 N. J. L. 323; Townsend v. Turnpike Road. 
 6 Johns. (N. Y.) 90; Beecher v. Ferry Co., 24 
 Conn. 491; and that where the necessity 
 for a bridge is created by the act of an in- 
 
 dividual or corporation in cutting a canal, 
 ditch, or railway through a highway, it is 
 the duty of the author of such necessity t.. 
 make and repair the bridge; Perley 
 ler, 6 Mass. 458, 4 Am. 'Dec. 159; Dygert v. 
 Schenck, 23 Wend. (N. Y.) 446, 35 Am. Dec. 
 575; Nobles v. Langly, 66 N. C. 2S7; Penn- 
 sylvania R. Co. v: Borough of Irwin, 85 Pa. 
 336; Roberts v. Ry. Co., 3.", Wis. 679. Where 
 a bridge is rebuilt at count y ., but 
 
 over which it has no control or care and on 
 which it expends no money thereafter, it 
 does not become liable to maintain or repair 
 it; Delta Lumber Co. v. Board of Auditors 
 of Wayne County, 71 Mich. 571', 40 N. W. 1 
 The parties chargeable must constantly keep 
 the bridge in such repair as will make it 
 safe and convenient for the service for which 
 it is required; Hawk. PI. Cr. c. 77, s. 1; 
 Frankfort Bridge Co. v. Williams, 9 Dana 
 (Ky.) 403, 35 Am. Dec. 151; Holley v. Turn- 
 pike Co., 1 Aik. (Vt.) 74 ; People v. Turnpike 
 Road, 23 Wend. (N. Y.) 254. See Town of 
 Grayville v. Whitaker, 85 111. 439; Holmes 
 v. City of Hamburg, 47 la. 348 ; Rapho Tp. v. 
 Moore, 68 Pa. 408, 8 Am. Rep. 202; Hicks v. 
 Chaffee, 13 Hun (N. Y.) 293: Abbot v. Wol- 
 cott, 38 Vt. 666. 
 
 Remedies for failure to repair. " f the 
 parties chargeable with the duty of repair- 
 ing neglect so to do. they are liable to in- 
 dictment: Hawk. PI. Cr. c. 77. s. 1; People 
 v. Dutchess County, 1 Hill CS. Y.) 50; State 
 v. Canterbury, 2S N. II. 196; Com. v. New- 
 buryport Bridge. 9 Pick. (Mass.) 142; State 
 v. King, 25 N. C. 411. It has also been held 
 that they may be compelled by mandamus 
 to repair; Brander v. Chesterfield Justices, 
 
 5 Call (Va.) 548, 2 Am. Dec. GOG; Dinwiddle 
 Justices v. Chesterfield Justices, 5 Call (Va.) 
 556 ; People v. Dutchess County, 1 Hill (N. 
 Y.) 50; Nelson County Court v. Washington 
 County Court, 14 B. Monr. (Ky.) 91': State 
 v. Freeholders of Essex. 23 N. J. L. 214. 
 But see 12 A. & E. 427: 3 Campb. 222: State 
 v. Cloud County Com'rs, 39 Kan. 700, 18 
 Pac. 952. If a corporation be charged with 
 the duty by charter, they may be proceeded 
 against by quo 'warranto for the forfeiture 
 of their franchise; People v. R. Co.. 23 Wend. 
 (N. Y.) 2~>4; or by action on the case for dam- 
 ages in favor of any person specially injured 
 by reason of their neglect: Sherwood v. 
 
 on, IS Conn. .^2: Townsend v. Turnpike Road, 
 
 6 Johns. (N. Y.) 90: Richardson v. Turnpike 
 Co., 6 Vt. 496; Randall v. Turnpike. 6 N. H. 
 147, 2.") Am. Dec. 458; Williams v. Turnpike, 
 4 Pick. (Mass.) fill; Board of Com'rs of 
 Sullivan County v. Sisson, 2 Ind. App. 311, 
 2S N. E. 374. And a similar action is given 
 by statute, in many states, against public 
 bodies chargeable with repair: Whipple v. 
 Walpole, H» N. H. 130: Board of Com'rs of 
 Allen County v. Creviston. 133 Ind. 39, 32 
 N. E. 735. A city is liable to an action for 
 damages caused by a failure to maintain a 
 bridge as required by law; City of Boston
 
 BRIDGE 
 
 398 
 
 BRIEF 
 
 v. Crowley, 38 Fed. 202. In Georgia coun- 
 ties are not liable for injuries from defects 
 in free bridges or ferries ; Arline v. Laurens 
 County, 77 Ga. 249, 2 S. E. 833. 
 
 Tolls. Tbe law of travel upon bridges is 
 the same as upon highways, except when 
 burdened by tolls. The payment of tolls can 
 be lawfully enforced only at the gate or toll- 
 house ; State v. Dearborn, 15 Me. 402. Where 
 by the charter of a bridge company, certain 
 persons are exempted from payment, such 
 exemption is to be liberally construed; Cay- 
 uga Bridge Co. v. Stout, 7 Cow. (N. Y.) 33; 
 Salmon v. Mallett, 6 N. C. 372 ; South Caro- 
 lina R. Co. v. Jones, 4 Rich. Eq. (S. C.) 439. 
 
 Bridges, when owned by individuals, are 
 real estate; In re Meason's Estate, 4 Watts 
 (Pa.) 341; Arnold v. Ruggles, 1 R. I. 165, 
 Hudson River Bridge Co. v. Patterson, 74 N. 
 Y. 365; and also when owned by the pub- 
 lic; yet the freehold of the soil is in its 
 original owner; Co. 2d Inst. 705. The ma- 
 terials of which they are formed belong to 
 the parties who furnished them, subject to 
 the public right of passage ; and* when the 
 bridge is taken down or abandoned become 
 the property of those who furnished them; 
 6 East 154 ; President, etc., of Turnpike Road 
 Co. v. Com'rs of Franklin County, 6 S. & R. 
 (Pa.) 229. 
 
 A private bridge is one erected for the use 
 of one or more private persons. Such a bridge 
 will not be considered a public bridge although 
 it may be occasionally used by the public ; 12 
 East 203 : Thompson v. R. Co., 3 Sandf. Ch. 
 (N. Y.) 625 ; 1 Rolle, Abr. 36S, Bridges, pi. 2 ; 
 2 Inst. 701; 1 Salk. 359. The builder of a 
 private bridge over a private way is not in- 
 dictable for neglect to repair, though it be 
 generally used by the public. See Proprietors 
 of Charles River Bridge v. Proprietors of 
 Warren Bridge, 7 Pick. (Mass.) 344; id., 11 
 Pet. (U. S.) 539, 9 L. Ed. 773 ; People v. Coop- 
 er, 6 Hill (N. Y.) 516. 
 
 As to bridges over navigable waters, see 
 that title. 
 
 See Commerce; Ferry. 
 
 BRIEF (Lat. orevis, L. Fr. briefe, short). 
 
 In Ecclesiastical Law. A papal rescript 
 sealed with wax. See Bull. 
 
 In Practice. A writ. It is found in this 
 sense in the ancient law authors. 
 
 An abridged statement of the party's case. 
 
 A trial brief properly and thoroughly pre- 
 pared should contain a statement of the 
 names of the parties, and of their residence 
 and occupation, the character in which they 
 sue and are sued, and wherefore they prose- 
 cute or resist the action ; an abridgment of 
 all the pleadings ; a chronological and method- 
 ical statement of the facts, in plain language ; 
 a summary of the points or questions in is- 
 sue, and of the proof which is to support 
 such issues, mentioning specially the names 
 of the witnesses by which the facts are to be 
 proved, or, if there be written evidence, an 
 
 abstract of such evidence ; the personal char- 
 acter of the witnesses, whether the moral 
 character is good or bad, whether they are 
 naturally timid or over-zealous, whether firm 
 or wavering ; of the evidence of the opposite 
 party, if known, and such facts as are adapt- 
 ed to oppose, confute, or repel it. 
 
 This statement should be perspicuous and concise. 
 The object of a brief is to inform the person who 
 tries the case of the facts important for him to 
 know, to present his case properly where it has 
 been prepared by another person— as is the general 
 practice in England, and to some extent in this 
 country — or as an aid to the memory of the person 
 trying a case when he has prepared it himself. 
 
 A brief on error or appeal is a legal argu- 
 ment upon the questions which the record 
 brings before the appellate court. These 
 are written or printed and vary somewhat 
 according to the purposes they are to sub- 
 serve. 
 
 The rules of most of the appellate courts 
 require the filing of printed briefs for the 
 use of the court and opposing counsel at a 
 time designated for each side before hearing. 
 In the rules of the supreme court and cir- 
 cuit court of appeals of the United States 
 the brief is required to contain a concise 
 statement of the case, a specification of er- 
 rors relied on, including the substance of 
 evidence, the admission or rejection of which 
 is to be reviewed, or any extract from a 
 charge excepted to, and a brief of argument 
 exhibiting clearly the points of law or fact 
 to be discussed, with proper reference to 
 the record or the authorities relied upon. 
 When a statute is cited, so much as is relied 
 on should be printed at length. Such a brief 
 will generally be sufficient to answer the re- 
 quirements of any of the courts in the sev- 
 eral states whose rules require printed briefs. 
 
 See Briefmaking by Lyle (Cooley's ed.). 
 
 BRIEF OF TITLE. An abridged and or- 
 derly statement of all matters affecting the 
 title to a certain portion of real estate. 
 
 It should give the effective parts of all patents, 
 deeds, indentures, agreements, records, and papers 
 relating to such estate, with sufficient fulness to dis- 
 close their full effect, and should mention incum- 
 brances existing whether acquired by deed or use. 
 All the documents of title should be arranged in 
 chronological order, noticing particularly in regard 
 to deeds, the date, names of parties, consideration, 
 description of the property, and covenants. See 1 
 Chit. Pr. 304, 463; 14 Am. L. Reg. N. S. 529. See 
 Abstract of Title. 
 
 BRIG BOTE (Sax.). A contribution to re- 
 pair a bridge. See Bote. 
 
 BRINGING MONEY INTO COURT. The 
 
 act of depositing money in the hands of the 
 proper officer of the court for the purpose of 
 satisfying a debt or duty, or of an inter- 
 pleader. See Payment into Court. 
 
 BROCAGE. The wages or commissions 
 of a broker. His occupation is also some- 
 times called brocage. 
 
 BR0CARIUS, BR0CAT0R. A broker; a 
 middle-man between buyer and seller ; the
 
 BROCARIUS, BROCATOR 
 
 399 
 
 BROKERS 
 
 agent of both transacting parties. Used in i 
 the old Scotch and English law. Bell, Diet.; 
 Cowell. 
 
 BROKERAGE. The trade or occupation of 
 a broker; the commissions paid to a broker 
 for his services. 
 
 BROKERS. Those who are engaged for 
 others in the negotiation of contracts rela- j 
 tive to property, with the custody of which 
 they have no concern, i'aley, Agency 13. j 
 See Com. Dig. Merchant, C. 
 
 A broker is, for some purposes, treated as 
 the agent of both parties; but, in the first 
 place, he is deemed the agent only of the per- 
 son by whom he is originally employed, and 
 does not become the agent of the other until 
 the bargain or contract has been definitely 
 settled, as to the terms, between the prin- 
 cipals, when he becomes the agent of both 
 parties for the purpose of executing the 
 bought and sold notes; Evans v. Wain, 71 Pa. i 
 69; 5 B. & Aid. 333; Hinckley v. Arey, 27 \ 
 Me. 3G2 ; Woods v. Rocchi, 32 La. Ann. 210. 
 
 A commission merchant differs from a bro- 
 ker in that he may buy and sell in his own 
 name without disclosing his principal, while 
 the broker can only buy or sell in the name j 
 of his principal. A commission merchant 
 has a lien upon the goods for his charges, 
 advances, and commissions, while the broker 
 has no control of the property and is only 
 responsible for bad faith ; Edwards v. Hoef- 
 finghoff, 38 Fed. 635. 
 
 One who negotiates a sale of another's 
 property without having either actual or 
 constructive possession of it is a broker as 
 distinguished from a factor ; J. M. Robin- 
 son, Norton & Co. v. Cotton Factory, 121 Ky. 
 435, 99 S. W. 305, 102 S. W. 869, 8 L. B. 1 
 <N. S.) 474, 14 Ann. Cas. 802. 
 
 The authority of a broker to bind his prin- 
 cipal may by special agreement be carried 
 to any extent that the principal may choose, 
 but the customary authority of brokers is 
 for the most part so well settled as to be a 
 constituent part of the law merchant; Benj. 
 Sales | 273. 
 
 Bill and Note Brokers negotiate the pur- 
 chase and sale of bills of exchange and prom- 
 issory notes. 
 
 They are paid a commission . by the seller of the 
 securities ; and it is not their custom to disclose the 
 names of their principals. There is an implied war- 
 ranty that what they sell is what they represent It 
 to be ; and should a bill or note sold by them turn 
 out to be a forgery, they are held to be responsible ; 
 but It would appear that by showing a payment 
 over to their principals, or other special circum- 
 stances attending the transaction proving that it 
 would be inequitable to hold them responsible, they 
 will be discharged; Edw. Fact. & Bro. § 10; Aldrich 
 v. Butts, 5 R. I. 218; contra, Baxter v. Duren, 29 
 Me. 434, 50 Am. Dec. 602; Morrison v. Currie, 4 
 Duer (N. Y.) 79. 
 
 Exchange Brokers negotiate bills of ex- 
 change drawn on foreign countries, or on 
 other places in this country. 
 
 It is sometimes part of the business of exchange 
 brokers to buy and sell uncurrent bank notes and 
 
 gold and silver coins, as well as drafts and checks 
 drawn or payable in other cities ; although, as they 
 do this at their own risk and for their own profit, it 
 is difficult to see the reason for calling them bro- 
 kers. The term Is often thus erroneously applied to 
 all persons doing a money business. 
 
 Insurance Brokers procure Insurance, and 
 negotiate between insurers and Insured. 
 
 Merchandise Brokers negotiate the sale of 
 merchandise without having | n or 
 
 control of it, as factors have. 
 
 Pawnbrokers lend money in small sums, 
 on the security of personal property, g 
 ally at usurious rates of interest. They are 
 licensed by the authorities, and excepted 
 from the operation of the usury laws. 
 
 Real Estate Brokers. Those who negoti- 
 ate the sale or purchase of real property. In 
 addition to the above duty they sometimes 
 procure loans on mortgage security, collect 
 rents, and attend to the leasing of houses 
 and lands. 
 
 Ship Brokers negotiate the purchase and 
 sale of ships, and the business of freighting 
 vessels. Like other brokers, they receive a 
 commission from the seller only. 
 
 Stock Brokers. Those employed to buy 
 and sell stocks and bonds of incorporated 
 companies, and government bonds: 
 
 In the larger cities, the stock brokers are asso- 
 ciated together under the name of the Board of 
 Brokers. This Board Is an association admission 
 to membership in which is guarded with jealous 
 care. Membership Is forfeited for default in carry- 
 ing out contracts, and rules are prescribed for the 
 conduct of the business, which are enforced on all 
 members. The purchases and sales are made at 
 sessions of the Board, and are all officially record- 
 ed and published by the association. Stock brokers 
 charge commission to both the buyers and sellers 
 of stocks. 
 
 See Commissions; Margin; Stock Ex- 
 change; Pledge; Bought Note; Principal 
 and Agent; Real Estate Broker. 
 
 See Story, Ag. § 28; Malynes, Lex Merc. 
 143; Liverm. Ag. ; Whart. Ag. ; Benj. Sales; 
 Lewis, Stock Exchange ; Biddle, Stock Bro- 
 kers ; Mechein, Ag. ; Gross ; Walker, Real 
 Est. 
 
 BROTHEL. A bawdy-house ; a common 
 habitation of prostitutes. 
 
 Such places have always been deemed 
 common nuisances in the United States, and 
 the keepers of them may be fined and im- 
 prisoned. Till the time of Henry VIII. they 
 were licensed in England, but that prince 
 suppressed them. See Coke, 2d Inst. 205; 
 Bawdy-House. For the history of these 
 places, see Merlin, R6p. Mot Bordel; Par- 
 ent Duchatellet, Dc la Prostitution dans la 
 Yille dc Paris; Histoire de la Legislation 
 sur Irs Femmes publiques, etc., par Sabatier. 
 
 BROTHER. He who is born from the 
 same father and mother with another, or 
 from one of them only. 
 
 Brothers are of the whole blood when they are 
 born of the same father and mother, and of the 
 half-blood when they are the issue of one of them 
 only. In the civil law, when they are the children 
 of the same father and mother, they are called
 
 BROTHER 
 
 400 
 
 BUILDING 
 
 brothers germain; when they descend from the 
 same father but not the same mother, they are 
 consanguine brothers; when they are the issue of 
 the same mother, but not the same father, they 
 are uterine brothers. A half-brother is one who is 
 born of the same father or mother, but not of both ; 
 one born of the same parents before they were 
 married, a left-sided brother; and a bastard born 
 of the same father or mother is called a natural 
 brother. See Blood ; Half-Blood ; Line ; Merlin, 
 Revert. Frere; Diet, de Jurisp. Frere; Code 3. 
 28. 27 ; Nov. 84, praef. ; Dane, Abr. Index ; 44 U. C. 
 Q. B. 536 ; Gardner v. Collins, 3 Mas. 398, Fed. Cas. 
 No. 5,223 ; id., 2 Pet. (U. S.) 58, 7 L. Ed. 347 ; Wheel- 
 er v. Clutterbrick, 52 N. Y. 67. 
 
 To obtain a conviction of the crime of in- 
 cest, under a statute forbidding the mar- 
 riage of brother, and sister, it is not neces- 
 sary to show legitimacy of birth; State v. 
 Schaunhurst, 34 la. 547. 
 
 BROTHERHOOD AND 6UESTLING, 
 COURT OF. The Brotherhood was a con- 
 ference of seven towns (i. e., the Cinque 
 Ports and two other ancient towns) as to 
 the provision of the necessary ships and as to 
 arranging for the herring sale at Yarmouth, 
 and for other such purposes. The Guestling 
 was rather a wider meeting, at which not 
 merely the Brotherhood, but deputies from 
 other associated towns were present for the 
 discussion of subjects of common interest to 
 all. 
 
 BROTHER-IN-LAW. The brother of a 
 wife, or the husband of a sister. 
 
 There is no relationship, in the former case, be- 
 tween the husband and the brother-in-law, nor in 
 the latter, between the brother and the husband of 
 the sister: there is only affinity between them. 
 See Vaugh. 302, 329. 
 
 BRUISE. In Medical Jurisprudence. An 
 
 injury done with violence to the person, with- 
 out breaking the skin : it is nearly synony- 
 mous with contusion (q. v.). 1 Ch. Pr. 38. 
 See 4 C. & P. 381, 487, 558. 
 
 BUBBLE ACT. The name given to the 
 statute 6 Geo. I. c. 18 (1719), intended "for 
 restraining several extravagant and unwar- 
 rantable practices therein mentioned." See 
 2 P. Wms. 219. 
 
 BUCKET SHOP. An establishment nom- 
 inally for the transaction <of a stock exchange 
 business, or business of a similar character, 
 but really for the registration of bets or 
 wagers, usually for small amounts, on the 
 rise and fall of the prices of stocks, grain, 
 oil, etc., there being no transfer or delivery 
 of the stock or commodities nominally dealt 
 in. State v. McGinnis, 138 N. C. 724, 51 S. 
 E. 50, adopting definition of Cent. Diet.; 
 Gatewood v. North Carolina, 203 U. S. 531, 
 27 Sup. Ct. 167, 51 L. Ed. 305. Ostensible 
 brokerage offices in which transactions in 
 stocks and commodities are closed by the 
 payment of gains or losses, as determined by 
 price quotations. No property is bought or 
 sold. Report to Gov. Hughes of N. Y., 1909. 
 
 See Gambling. 
 
 BUGGERY. See Sodomy. 
 
 BUILDING. An edifice, erected by art, 
 and fixed upon or over the soil, composed of 
 brick, marble, wood, or other proper sub- 
 stance, connected together, and designed for 
 use in the position in which it is so fixed. 
 Every building is an accessory to the soil, 
 and is therefore real estate; it belongs to 
 the owner of the soil ; Cruise, Dig. tit. 1, s. 
 46; but a building placed on another's land 
 by his permission is the personal estate of 
 the builder ; 2 Bla. Com. 17. 
 
 BUILDING ASSOCIATIONS. Co-opera- 
 tive associations, usually incorporated, estab- 
 lished for the purpose of accumulating and 
 loaning money to their members upon real 
 estate security. It is usual for the members 
 to make monthly payments upon each share 
 of stock, and for those who borrow money 
 from the association to make such payments 
 in addition to interest on the sum borrowed. 
 When the stock, by successive payments and 
 the accumulation of interest, has reached 
 par, the mortgages given by borrowing mem- 
 bers are cancelled, and the non-borrowing 
 members receive in cash the par of their 
 stock. See Endlich, Build. Assoc; Wrigl. 
 Build. Assoc. The general design of such an 
 association is the accumulation from fixed 
 periodical contributions of its shareholders 
 and from the profits derived from the invest- 
 ment of the same, of a fund to be applied 
 from time to time in accommodating such 
 shareholders with loans, to enable them to 
 acquire and improve real estate by building 
 thereon; the conditions of the loan being 
 such that the liability incurred therefor may 
 be gradually extinguished by the borrower's 
 periodical contributions upon his stock, so 
 that when the latter shall be fully paid up 
 the amount paid shall be sufficient to cancel 
 the indebtedness; State v. Loan Ass'n, 45 
 Minn. 154, 47 N. W. 540, 10 L. R. A. 752. It 
 differs from an ordinary corporation among 
 other ways in the fact that in an ordinary 
 business corporation stock is subscribed and 
 either paid for at the time, or if partly paid 
 for it becomes the property of the subscriber 
 subject to future calls, while in a building 
 association the stock subscriber is not the 
 out and out owner of the stock from the be- 
 ginning. He pays thereon a monthly pay- 
 ment, and, when these monthly payments, 
 with his increment of gains accrued, equal 
 the par value of the share of stock he is en- 
 titled to receive that amount. If, in the 
 meantime, he has borrowed on his stock, it 
 by pledge or operation of the loan remains 
 the property or quasi property of the corpo- 
 ration, and the loan is returned by the pay- 
 ment of interest and stock dues, penalties, 
 etc., the repayment of the loan culminating 
 at the same time the stock itself matures, at 
 which time, in theory, the corporation, or a 
 given series or issue of its stock, is liqui- 
 dated — the non-borrowing stockholders have 
 their stock redeemed and the borrowers have
 
 BUILDING ASSOCIATIONS 
 
 401 
 
 BUILDING ASSOCIATIONS 
 
 their loans cancelled; Cobe v. Lovan, 193 
 Mo. 235, 92 S. W. 93, 4 L. R. A. (N. S.) 439, 
 112 Am. St. Rep. 480. 
 
 That it has power to borrow money to pay 
 Its stockholders when their stock reaches its 
 par value is held in North Hudson Mut. Bldg. 
 & Loan Ass'n v. Bank, 79 Wis. 31, 47 X. W. 
 300, 11 L. R. A. 815; that such power is im- 
 plied when no statute denies it is held in 
 Bohn v. Bldg. & Loan Ass'n, 135 la. 140. 112 
 N. W. 199, 124 Am. St. Rep. 263; Marion 
 Trust Co. v. Inv. Co., 27 Ind. App. 451, 61 
 N. E. 688, 87 Am. St. Rep. 257. Other cases 
 hold that a loan for the purpose of paying 
 withdrawing members is ultra vires and void 
 in the absence of an express borrowing pow- 
 er in the association ; 22 Ch. D. 61 ; Stand- 
 ard Savings & Loan Ass'n v. Aldrich, 163 
 Fed. 216, 89 C. C. A. 646, 20 L. R. A. (X. S.) 
 393. 
 
 It has no power to transfer to another as- 
 sociation the contract of a borrowing stock- 
 holder ; Thomp. Bldg. & Loan Ass'n (2d ed.) 
 286; Barton v. Loan & Bldg. Ass'n, 114 Ind. 
 226, 16 N. E. 486, 5 Am. St. Rep. 60S ; Love- 
 lace v. Pratt, 163 Mo. 70, 63 S. W. 383. That 
 it has such power in the absence of statutory 
 prohibitions, is held in Bowlby v. Kline, 28 
 Ind. App. 659, 63 N. E. 723 ; Quein v. Smith, 
 108 Pa. 325. 
 
 In case of an advance by one loan associa- 
 tion to take up a loan in another upon stock 
 which has partly matured, the net amount of 
 the loan is the sum still due, and not the 
 face value of the loan, although tbe latter 
 amount is charged on the books of the asso- 
 ciation and a credit as of an advance pay- 
 ment thereon given for the withdrawal value 
 of the stock in the other association ; But- 
 son v. Sav. & Trust Co., 129 la. 370, 105 N. 
 W. 645, 4 L. R. A. (N. S.) 98, 113 Am. St. 
 Rep. 463. 
 
 One loaning money to a building associa- 
 tion to satisfy the claims of withdrawing 
 members, taking an assignment of mortgages 
 of borrowing members as security, cannot 
 hold the mortgages against the claims of a 
 receiver of the association, since he is charg- 
 ed with knowledge of the want of power of 
 the association to make the assignment ; 
 Staudard Savings & Loan Ass'n v. Aldrich, 
 163 Fed. 216, 89 C. C. A. 646, 20 L. R. A. (N. 
 S.) 393. A statute authorizing such associa- 
 tions to retire stock out of a portion of its 
 current receipts, was held not to confer any 
 power to give its notes to retiring stockhold- 
 ers; Appeal of Powell, 93 Mo. App. 296. 
 Such an association may stipulate in a con- 
 tract of loan for the payment of a monthly 
 premium limited to a certain number of pay- 
 ments ; Burkheimer v. Bldg. & Loan Ass'n, 
 59 W. Va. 209, 53 S. E. 372, 4 L. R. A. (X. S.) 
 1047. 
 
 When its articles have been amended to 
 conform to a statute providing for lower 
 rates of interest, the association may not 
 Bouv.— 26 
 
 deny its benefits to members who have bor- 
 rowed before the act was passed on the 
 ground that the provisions of the amended 
 articles' do not refer to pre-existing con- 
 tracts ; St. John v. Bldg. & Loan Ass'n, 136 
 la. 448, 113 N. W. 863, 15 L. R. A. (X. S.) 
 503. 
 
 An absolute promise to mature its shares 
 in a specified time is not changed to a con- 
 ditional one dependent upon the succ> 
 the enterprise, by the sharehold< i 
 ment, as expressed in the certificate of stock, 
 to pay a specified monthly installment on 
 each share until it matures or is withdrawn, 
 and the provision of the by-laws accepted by 
 him, that such installments shall be paid un- 
 til each share is fully paid; Eastern Build- 
 ing & Loan Ass'n v. Williamson, 189 U. S. 
 122, L':: Sup. Ct. 527, 47 L. Ed. 735, following 
 Vought v. Building & Loan Ass'n, 172 X. Y. 
 508, 65 N. E. 496, 92 Am. St. Rep. 761, and 
 affirming Williamson v. Building & Loan 
 Ass'n, 62 S. C. 390, 38 S. E. 616, 100S. 
 
 The ground that such a promise on the 
 part of the association was ultra vires was 
 held not available where the shareholder 
 had fully performed his part of the contract ; 
 Assets Realization Co. v. Heiden, 215 111. 9, 
 74 X. E. 56; Eastern Building & Loan Ass'n 
 v. Williamson, 189 U. S. 122, 23 Sup. Ct 527, 
 47 L. Ed. 735 ; Floyd-Jones v. Anderson, 30 
 Mont. 351, 76 Pac. 751 ; Leahy v. Building & 
 Loan Ass'n, 100 Wis. 555, 76 N. W. 625, 69 
 Am. St Rep. 945; Hammerquist v. Savings 
 & Loan Co., 15 S. D. 70, S7 X. W. 524. 
 
 But it has been held, where authority to 
 issue stock having a fixed period of maturity 
 was not expressly given by statute or by the 
 articles or by-laws of the association, the 
 ground of ultra vires may be set up by the 
 association ; O'Malley v. Building, Loan cV: 
 Savings Ass'n, 92 Hun 572, 36 X. Y. Supp. 
 1016; McKean v. Building & Loan Ass'n, 10 
 Pa. Dist R. 197; and to the same effect 
 King v. Building, Loan & Inv. Union, 170 
 111. 135, 48 N. E. 677 ; Schell v. Loan & Inv. 
 Ass'n, 150 Mo. 103, 51 S. W. 406. 
 
 A stockholder who actively or passively 
 concurs in the management of the affairs of 
 a building association must bear his sbare of 
 the losses during his membership resulting 
 from such management; Browne v. Sanders, 
 20 D. C. 455. 
 
 In considering the question of usury in a 
 loan from a building association, payments 
 made by the borrower as dues are not to be 
 considered as interest, as such payments are 
 made in order to acquire an interest in the 
 property of the association and not for the 
 use of money ; Tilley v. Building & Loan 
 Ass'n, 52 Fed. 618; a premium bid for a 
 loan cannot be allowed as a cloak for usury ; 
 International Building & Loan Ass'n v. Bier- 
 ing, 86 Tex. 476, 25 S. W. 622, 26 S. W. 39. 
 
 Fines imposed for default in payment of 
 dues and interest cannot be collected by fore-
 
 BUILDING ASSOCIATIONS 
 
 402 
 
 BUILDING RESTRICTION 
 
 closure of a mortgage given to secure pay- 
 ment of an amount borrowed, unless it has 
 been agreed that this may be done ; Bowen 
 v. Building & Loan Ass'n, 51 N. J. Eq. 272, 
 28 Atl. 67. 
 
 BUILDING CONTRACT. A contract to 
 erect a building subject to the acceptance or 
 rejection of the architect and in strict ac- 
 cordance with the plans, does not make the 
 architect's acceptance conclusive (there being 
 no clause to that effect) ; Mercantile Trust 
 Co. v. Hensey, 205 U. S. 298, 27 Sup. Ct 535, 
 51 L. Ed. 811, 10 Ann. Cas. 572. 
 
 BUILDING PERMIT. A city, when au- 
 thorized by its charter to control the con- 
 struction and repair of all houses, may re- 
 quire a permit from it as a prerequisite to 
 the erection of a building; Fellows v. City 
 of Charleston, 62 W. Va. 665, 59 S. E. 623, 
 13 L. R. A. (N. S.) 737, 125 Am. St. Rep. 990, 
 13 Ann. Cas. 1185; Commissioners of Easton 
 v. Covey, 74 Md. 262, 22 Atl. 266. But it 
 cannot require buildings to conform in size, 
 appearance, etc., to other buildings in the 
 same neighborhood ; Bostock v. Sams, 95 Md. 
 400, 52 Atl. 665, 59 L. R. A. 282, 93 Am. St. 
 Rep. 394. 
 
 BUILDING RESTRICTION. When one 
 makes deeds of different portions of a tract 
 of land, each containing the same restriction 
 upon the lot conveyed wbich is imposed as a 
 part of a general plan for the benefit of the 
 several lots, such a restriction not only im- 
 poses a liability upon the grantee of each lot 
 as between him and the grantor, but it gives 
 him a right in the nature of an easement 
 which will be enforced in equity against tbe 
 grantee of one of the other lots, although 
 there is no direct contractual relation be- 
 tween the two. Through the common char- 
 acter of the deeds, the grantees are given an 
 interest in a contractual stipulation which is 
 used for their common benefit; Evans v. 
 Foss, 194 Mass. 513, 80 N. E. 5S7, 9 L. R. A. 
 (N. S.) 1039, 11 Ann. Cas. 171, where the 
 erection of a garage was held to be within a 
 restriction forbidding the erection on the 
 property of any building for shops or any 
 other business objectionable to the neighbor- 
 hood for dwelling houses. The maintenance 
 of a hospital was enjoined where a covenant 
 provided that the premises should not be 
 leased for any noisome, obnoxious or offen- 
 sive trade or business ; 58 L. J. Ch. N. S. 83 ; 
 48 id. 339. An undertaker's establishment 
 where bodies were received, kept and em- 
 balmed, funeral services and autopsies were 
 held, and bodies dissected, was enjoined 
 where the restriction provided that no trade 
 or business offensive to the neighborhood 
 should be carried on ; Rowland v. Miller, 139 
 N. Y. 93, 34 N. E. 765, 22 L. R. A. 1S2. The 
 location of a coal yard which received and 
 broke up coal and separated it from the dust 
 was enjoined under such a restrictive cove- 
 
 nant ; Barron v. Richard, 3 Edw. Ch. (N. Y.) 
 96 ; as was the location of a large school for 
 boys; 68 L. J. Ch. 8. 
 
 But such a covenant is held not, as a mat- 
 ter of law, to be violated by the erection of 
 a three-story building with stores on the first 
 floor and flats or apartments above ; Hurley 
 v. Brown, 44 App. Div. 480, 60 N. Y. Supp. 
 846; or by one for the sale of groceries and 
 provisions; Tobey v. Moore, 130 Mass. 448; 
 Evans v. Foss, 194 Mass. 513, 80 N. E. 587, 9 
 L. R. A. (N. S.) 1039, 11 Ann. Cas. 171. Gen- 
 erally, such restrictions will be construed in 
 favor of the free use of property ; James v. 
 Irvine, 141 Mich. 376, 104 N. W. 631. 
 
 That a house shall be set back a certain 
 distance and shall correspond with the gran- 
 tor's adjoining house is the benefit of the 
 land, and not a personal covenant: its life is 
 limited to the life of the first house erected 
 on the granted premises ; Welch v. Austin, 
 187 Mass. 256, 72 N. E. 972, 68 L. R. A. 189. 
 
 See Easement ; Municipal Corporation ; 
 Police Power. 
 
 The state may limit the height of buildings 
 to be erected in cities ; Welch v. Swasey, 193 
 Mass. 364, 79 N. E. 745, 23 L. R. A. (N. S.) 
 1160, 118 Am. St. Rep. 523; Cochran v. Pres- 
 ton, 108 Md. 220, 70 Atl. 113, 23 L. R. A. (N. 
 S.) 1163, 129 Am. St. Rep. 432, 15 Ann. Cas. 
 1048. It may permit them to be higher in 
 the sections where there is a demand for of- 
 fice space than in the residential portions, 
 though the streets in the former may be nar- 
 rower than in the latter ; Welch v. Swasey, 
 193 Mass. 364, 79 N. E. 745, 23 L. R. A. (N. 
 S.) 1160, 118 Am. St. Rep. 523. It may re- 
 strict the height of buildings adjacent to a 
 certain square in a city, compensation being 
 given to persons injured in their property 
 rights ; Attorney General v. Williams, -174 
 Mass. 476, 55 N. E. 77, affirmed in Williams 
 v. Parker, 188 U. S. 491, 23 Sup. Ct. 440, 47 
 L. Ed. 559, where the statute was held not 
 to be in conflict with the federal constitution. 
 
 A city may forbid the erection of any 
 frame structure within the "fire limits" ; 
 O'Bryan v. Apartment Co., 128 Ky. 282, 108 
 S. W. 257, 15 L. R. A. (N. S.) 419 ; may re- 
 quire the removal of a wooden building with- 
 in such ' limits ; Davison v. City of Walla 
 Walla, 52 Wash. 453, 100 Pac. 981, 21 L. R. 
 A. (N. S.) 454, 132 Am. St. Rep. 983; may 
 require buildings used for certain purposes 
 to be equipped with fire escapes ; Arnold v. 
 Starch Co.. 194 N. Y. 42, 86 N. E. 815, 21 L. 
 R. A. (N. S.) 178; may refuse its consent to 
 the repair of a wooden building within the 
 fire limits which has been damaged by fire ; 
 Brady v. Ins. Co., 11 Mich. 425. The owner 
 thereof in such case, it is said, must first be 
 given opportunity to remove the building; 
 Village of Louisville v. Webster, 108 111. 418. 
 It may destroy a building infected with 
 smallpox, as a nuisance ; Sings v. City of 
 Joliet, 237 111. 300, 86 N. E. 663, 22 L. R. A.
 
 BUILDING RESTRICTION 
 
 403 
 
 BUNDLE 
 
 (N. S.) 1128, 127 Am. St. Rep. 323. It may 
 prevent the moving of a wooden building into 
 the city limits from a point outside; Red 
 Lake Falls Milling Co. v. City of Thief River 
 Falls, 109 Minn. 52, 122 N. W. s72, 24 L. R. 
 A. (N. S.) 450, 18 Ann. Cas. 182; Griffin v. 
 City of Gloversvillo, 67 App. Div. 403, 73 N. 
 Y. Supp. 684; Kaufman v. Stein, 138 Ind. 49, 
 37 N. E. 333, 46 Am. St. Rep. 368. 
 
 BULK. Merchandise which is neither 
 counted, weighed, nor measured. 
 
 A sale by bulk is a sale of a quantity of 
 goods such as they are, without measuring, 
 counting, or weighing. La. Civ. Code, art 
 3522, n. 6. 
 
 As to contracts forbidding "sales in bulk" 
 of a tradesman's entire stock, see Sales. 
 
 BULL (Lat. bulla, a stud or boss). A let- 
 ter from the pope of Rome, written on parch- 
 ment, to which is attached a metal seal im- 
 pressed with the images of Saint Peter and 
 Saint Paul, on either side of a cross. On the 
 other side of the seal is the name of the 
 pope, with the year of his pontificate. See 
 Seal ; Bullae. 
 
 There are three kinds of apostolical rescripts — 
 the brief, the signature, and the bull; which last is 
 most commonly used in legal matters. Bulls may 
 be compared to the edicts and letters-patents of 
 secular princes: when the bull grants a favor, the 
 seal is attached by means of silken strings ; and 
 when to direct execution to be performed, with 
 flax cords. Bulls are written in Latin, in a round 
 and Gothic hand. Ayliffe, Par. 132; Ayliffe, Pand. 
 21 ; Merlin, Repert. 
 
 BULL/E. Metal seals used, chiefly in the 
 southern countries of Europe, in place of 
 wax, which would be affected by heat ; also 
 used in other parts of Europe and even in 
 England. Usually of lead, but sometimes of 
 gold. Encycl. Br. 
 
 BULLETIN. An official account of public 
 transactions in matters of importance. In 
 France, it is the registry of the laws. 
 
 BULLION. The term bullion is common- 
 ly applied to uncoined gold and silver, in the 
 mass or lump. 
 
 BULLION FUND. A deposit of public 
 money at the mint and its branches. The 
 object of this fund is to enable the mint to 
 make returns of coins to private depositors 
 of bullion without waiting until such bullion 
 is actually coined. If the bullion fund is suf- 
 ficiently large, depositors are paid as soon as 
 their bullion is melted and assayed and the 
 value ascertained. It thus enables the mint 
 to have a stock of coin on hand to pay de- 
 positors In advance. Such bullion becomes 
 the property of the government, and, being 
 subsequently coined, is available as a means 
 of prompt payment to other depositors ; Act 
 of June 22, 1S74, Rev. Stat. U. S. § 3545. 
 
 BUNDLE. To sleep on the same bed with- 
 out undressing; applied to the custom of a 
 man and woman, especially lovers, thus 
 sleeping. A. & E. Ency. See Seagar v. Slig- 
 
 erland, 2 CaL (N, y.> 219; H.»llis v. W 
 Clark (Pa.) 169. 
 
 BUOY. A piece of wood, or an em pi;, 
 rel, or other thing, moored at a particular 
 place and flouting on the water, to show the 
 place where it is shallow, to mark the chan- 
 nel, or to indicate the danger there is to 
 navigation. 
 
 The act of congress approved the 28th September, 
 1850, enacts that all buoys shall be. so colored and 
 lettered that in passing up the coast or up a harbor, 
 red buoys with even numbers shall be on the right, 
 black buoys with uneven numbers on the lefl 
 with red and black stripes on either hand. In 
 channels with alternate black and white stripes. 
 
 BURDEN OF PROOF. The duty of prov- 
 ing the facts in dispute on an issue raised 
 between the parties in a cause. See People 
 v. McCann, 10 N. Y. CO, 69 Am. Dec. 642; 1. . 
 parte Walls, 64 Ind. 461; Wilder v. C 
 100 Mass. 4S7. 
 
 Burden of proof is to be distinguished from prima 
 facie evidence or a prima facie case. Generally, 
 when the latter is shown, the duty imposed upon the 
 party having the burden will be satisfied ; but it is 
 not necessarily so ; Delano v. Bartlett, 6 Cush. 
 (Mass.) 364 ; Tourtellot v. Rosebrook, 11 Mete. 
 (Mass.) 460; Swallow v. State, 22 Ala. 20; Doty v. 
 State, 7 Blackf. (Ind.) 427; Com. v. McKie, 1 Gray 
 (Mass.) 61, 61 Am. Dec. 410. 
 
 The burden of proof lies upon him who 
 substantially asserts the affirmative of the 
 issue; 1 Greenl. Ev. § 74; 3 M. ft W. 510; 
 but where the plaintiff grounds his case on 
 negative allegations, he has the burden ; 1 
 C. & P. 220; 5 B. ft C. 75S; 1 Greenl. Ev. g 
 81; Daugherty v. Deardorf, 107 Ind. 527, 
 S N. E. 296. As a general rule the burden 
 of proof is upon the plaintiff to establish 
 the facts alleged as the cause of action : 
 Read v. Buffum, 79 Cal. 77, 21 Pac. 555, 12 
 Am. St. Rep. 131; Stoddard v. Rowe, 74 la. 
 670, 39 N. W. 84; Woolsey v. Jones, S4 Ala. 
 88, 4 South. 190; Brimberry v. R. Co., 7S 
 Ga. 641, 3 S. E. 274; but in certain forms of 
 action the burden may by the pleadings be 
 shifted to the defendant. 
 
 In criminal eases, on the twofold ground 
 that a prosecutor must prove every fact 
 necessary to substantiate his charge againsl 
 a prisoner, and that the law will presume 
 innocence in the absence of convincing evi- 
 dence to the contrary, the burden of proof, 
 unless shifted by legislative interference, 
 will fall on the prosecuting party, though in 
 order to convict he must necessarily have 
 recourse to negative evidence; 1 Tayl. Ev. 
 8th ed. §§ 113, 371: U. S. v. Gooding, 12 
 Wheat. (U. S.i ICO, 6 L. Ed. 693. The burden 
 of proof is throughout on the government, 
 to make out the whole east-: and when a 
 prima facie ease Is established, the burden 
 of proof is not thereby shifted upon the de- 
 fendant, and he is not bound to restore him- 
 self to that presumption of innocence in 
 which he was at the commencement of the 
 trial: State v. Middleham, 62 la. 150, 17 
 N. W. 446: Wharton v. State. 73 Ala. 366; 
 People v. Falrchild, 4S Mich. 31, 11 N. W.
 
 BURDEN OF PROOF 
 
 404 
 
 BURGLARIOUSLY 
 
 773. As to the burden of proof where the 
 defence of insanity is set up, see Insanity. 
 BUREAU (Fr.). A place where business 
 is transacted. 
 
 In the classification of the ministerial officers of 
 government, and the distribution of duties among 
 them, a bureau is understood to be a division of 
 one of the great departments of which the secre- 
 taries or chief officers constitute the cabinet. 
 
 BURGAGE. A species of tenure, describ- 
 ed by old law-writers as but tenure in soc- 
 age, where the king or other person was lord 
 of an ancient borough, in which the tene- 
 ments were held by a rent certain. 
 
 Such boroughs had, and still have, certain 
 peculiar customs connected with the tenure, 
 which distinguished it from the ordinary 
 socage tenure. These customs are known by 
 the name of Borough-English; and they alter 
 the law in respect of descent, as well as of 
 dower, and the power of devising. By it the 
 youngest son inherits the lands of which his 
 father died seised. A widow, in some bor- 
 oughs, has dower in respect to all the tene- 
 ments which were her husband's; in others, 
 she has a moiety of her husband's lands so 
 long as she remains unmarried ; and with 
 respect, to devises, in some places, such 
 lands only can be devised as were acquired 
 by purchase; in others, estates can only be 
 devised for life ; 2 Bla. Com. 82 ; Glanv. b. 7, 
 c. 3; Litt. § 162; Cro. Car. 411; 1 P. Wms. 
 63; Fitzh. N. B. 150; Cro. Eliz. 415. 
 
 The tenure at a money rent would become 
 the typical tenure of a burgage tenement; 
 Maitl. Domesday & Beyond 198. 
 
 BURGATOR. One who breaks into houses 
 or enclosed places, as distinguished from one 
 who committed robbery in the open country. 
 Spelman, Gloss. Burglaria. 
 
 BURGESS. A magistrate of a borough. 
 Blount. An officer who discharges the same 
 duties for a borough that a mayor does for 
 a city. The word is used in this sense in 
 Pennsylvania. 
 
 An inhabitant of a town; a freeman; one 
 legally admitted as a member of a corpora- 
 tion. Spelman, Gloss. A qualified voter. 3 
 Steph. Com. 192. A representative in parlia- 
 ment of a town or borough. 1 Bla. Com. 174. 
 
 BURGESS ROLL. A list of those entitled 
 to new rights under the act of 5 & 6 Will. 
 IV. c. 74; 3 Steph. Com. 34, 38. 
 
 BURGHMOTE. In Saxon Law. Acourtof 
 justice held twice a year, or oftener, in a 
 burg. All the thanes and free owners above 
 the rank of ceorls were bound to attend 
 without summons. The bishop or lord held 
 the court. Spence, Eq. Jur. 
 
 BURGLAR. One who commits burglary. 
 
 He that by night breaketh and entereth 
 into the dwelling-house of another. Wil- 
 mot, Burgl. 3. 
 
 BURGLARIOUSLY. A technical word 
 which must be introduced into an indictment 
 
 for burglary at common law. The essential 
 words are "feloniously and burglariously 
 broke and entered the dwelling-house in the 
 night-time" ; Whart. Cr. PI. § 265. No other 
 word at common law will answer the pur- 
 pose, nor will any circumlocution be suffi- 
 cient; 4 Co. 39; 5 id. 121; Cro. Eliz. 920; 
 Bacon, Abr. Indictment (G, C); State v. 
 McClung, 35 W. Va. 280, 13 S. E. 654. But 
 there is this distinction: when a statute 
 punishes an offence by its legal designation 
 without enumerating the acts which con- 
 stitute it, then it is necessary to use the 
 terms which technically charge the offence 
 named at common law. But this is not 
 necessary when the statute describes the 
 whole offence, and the indictment charges 
 the crime in the words of the statute. Thus, 
 an indictment which charges the statute 
 crime of burglary is sufficient, without aver- 
 ring that the crime was committed "bur- 
 glariously ;" Tully v. Com., 4 Mete. (Mass.) 
 357. See Portwood v. State, 29 Tex. 47, 94 
 Am. Dec. 258; People v. Bosworth, 64 Hun 
 72, 19 N. Y. Supp. 114. 
 
 BURGLARY. The breaking and entering 
 the house of another in the night-time, with 
 intent to commit a felony therein, whether 
 the felony be actually committed or not. Co. 
 3d Inst. 63; 1 Hale, PI. Cr. 549; 1 Hawk. PI. 
 Cr. c. 38, s. 1; 4 Bla. Com. 224; 2 Russ. Cr. 
 2; State v. Wilson, 1 N. J. L. 441, 1 Am. 
 'Dec. 216; Com. v. Newell, 7 Mass. 247; 1 
 Whart Cr. L. (9th ed.) § 758 ; Allen v. State, 
 40 Ala. 334, 91 Am. Dec. 477. 
 
 In what place a burglary can be commit- 
 ted. It must, in general, be committed in a 
 mansion-house, actually occupied as a dwell- 
 ing ; but if it be left by the owner animo re- 
 vertendi, though no person resides in it in 
 his absence, it is still his mansion; Fost. 77; 
 Com. v. Brown, 3 Rawle (Pa.) 207; Com. v. 
 Barney, 10 Cush. (Mass.) 478. See Dweix- 
 ing-house. But burglary may be committed 
 in a church, at common law. And under the 
 statutes of some of the states, it has been 
 held that it could be committed in a store 
 over which were rooms in which the owner 
 lived; Quinn v. People, 71 N. Y. 561, 27 Am. 
 Rep. 87. A shoeshop in a room connected 
 with the dwelling is a part of it; People v. 
 Dupree, 98 Mich. 26, 56 N. W. 1046; a wheat 
 house; Bass v. State, 1 Lea (Tenn.) 444; a 
 railroad depot; State v. Bishop, 51 Vt. 287, 
 31 Am. Rep. 690; a stable; Orrell v. People, 
 94 111. 456, 34 Am. Rep. 241 ; but not a mill- 
 house, seventy-five yards from the owner's 
 dwelling, and not shown to be appurtenant; 
 3 Cos 581; Co. 3d Inst. 64. It must be the 
 dwelling-house of another person ; 2 Bish. 
 Cr. Law § 90; 2 East, PI. Cr. 502. A store- 
 house in which a clerk sleeps to protect the 
 property is a dwelling; State v. Pressley, 90 
 N. C. 730; U. S. v. Johnson, 2 Cra. C. C. 21, 
 Fed. Cas. No. 15,485. 
 
 At what time it must be committed. The
 
 BURGLARY 
 
 405 
 
 BURGLARY 
 
 offence must be committed in the night ; 
 for in the daytime there can be no bur- 
 glary; 4 Bla. Com. 224; 1 C. & K. 77 ; Lewis 
 v. State, 16 Conn. 32 ; State v. Bancroft, 10 
 N. H. 10.">. For this purpose it is deemed 
 night when by tbe light of the sun a person 
 cannot clearly discern the face or counte- 
 nance of another; 1 Hale, PI. Cr. 550; Co. 
 Sd Inst. G2; 1 C. & P. 297; 7 Dane, Ahr. 
 134. This rule, it is evident, does not apply 
 to moonlight ; 4 Bla. Com. 224 ; 2 Russ. Cr. 
 32 ; State v. Bancroft, 10 N. H. 105; Thomas 
 v. State, 5 How (Miss.) 20; State v. Mr- 
 Knight, 111 N. C. 090, 10 S. E. 310. The 
 breaking and entering need not be done the 
 same night ; 1 R. & R. 417 ; but it is neces- 
 sary that the breaking and entering should 
 be in the night-time; for if the breaking be 
 in daylight and tbe entry in the night, or 
 vice versa, it is said, it will not be burglary; 
 1 Hale, PL Cr. 551; 2 Russ. Cr. 32. But 
 qucrre, Wilmot, Burgl. 9. See Cora., Dig. 
 Justices, P. 2; 2 Chit. Cr. Law 1092. In 
 some states by statute the breaking and en- 
 tering in the daytime with intent to commit 
 a misdemeanor or felony is burglary; State 
 v. Miller, 3 Wash. 131, 28 Pac. 375; State v. 
 Hutchinson, 111 Mo. 257, 20 S. W. 34. 
 
 The means used. There must be both a 
 breaking and an entry or an exit. An actual 
 breaking takes place when the burglar 
 breaks or removes any part of the house, or 
 the fastenings provided for it, with violence ; 
 1 Bish. Cr. Law 91. Breaking a window, 
 taking a pane of glass out, by breaking or 
 bending the nails or other fastenings; 1 C. 
 & P. 300; 9 id. 44; 1 R. & ',R. 341, 499; 
 Walker v. State, 52 Ala. 376; cutting and 
 tearing down a netting of twine nailed over 
 an open window; Com. v. Stephenson, S 
 Pick. (Mass.) 354; Sims v. State, 136 Ind. 
 358, 86 N. E. 278; raising a latch, where 
 the door is not otherwise fastened ; 8 C. & 
 P. 747; Coxe 439; Curtis v. Hubbard, 1 
 Hill (N. Y.) 336; State v. Newbegin, 25 Me. 
 500; Bass v. State, 1 Lea (Tenn.) 444; Tini- 
 mons v. State, 34 Ohio St. 426, 32 Am. Rep. 
 370; State v. O'Brien, 81 la. 93, 46 N. W. 
 SGI ; picking open a lock with a false key ; 
 putting back the lock of a door, or the fast- 
 ening of a window, with an instrument; 
 lowering a w r indow fastened only by a wedge 
 or weight; 1 R. & R. 355, 451; State v. 
 Moore, 117 Mo. 395, 22 S. W. 10S6 ; Walker 
 v. State, 52 Ala. 376; or opening a door 
 when not locked or bolted ; Grimes v. State, 
 77 Ga. 762, 4 Am. St. Rep. 112; contra, 
 Williams v. State (Tex.) 13 S. W. 000; State 
 v. Reid, 20 la. 413; Timmons v. State, 34 
 Ohio St. 420. 32 Am. Rep. 376; People v. 
 Nolan, 22 Mich. 229; Carter v. State. 08 
 Ala. 96; Lyons v. People, 68 111. 271; turn- 
 ing the key when the door is locked in the 
 inside, or unloosing any other fastening 
 which the owner has provided; lifting a 
 trap-door; 1 Mood. 377; but see 4 C. & P. 
 . 231 ; are several instances of actual break- 
 
 ing. But removing a loose plank in a 
 tition wall was held not a breaking; Com. 
 v. Trimmer, 1 Mass. 476. According to tbe 
 Scotch law, entering a house by means of 
 the true key, while in tbe door, or when it 
 had been stolen, is a breaking; Alison, Pr. 
 284. See 1 Swint. Just. 
 
 Constructive breakings occur when the 
 burglar gains an entry by fraud: 1 l 
 D. 202; Ducher v. state, 18 Ohio, 308; i 
 v. Henry. 31 N. C. 403; 'Rolland v. I 
 monwealth, 82 Pa. 306; by conspira 
 threats; l Russ. Cr. Graves ed. 7'.»l': 'i id, 
 2; Slate v. Rowe, 98 N. C. 629, 4 S. B. 
 by bribing a servant ; by knocking at the 
 door, and, when opened, rushing in ; by 
 gaining admittance on pretense of wishing 
 to speak to some one within; by gaining ad- 
 mittance by threats; Odgers, Com. L. 383. 
 When one of three breaks and enters, an- 
 other watches at the door, and a third 
 stands farther off to give notice if help 
 comes, it is burglary in all ; 1 Hale, PL Cr. 
 555. 
 
 Where one is let into a store in the night- 
 time on pretence of making a purchase and 
 while in he unbolts a door and admits his 
 accomplice, who secretes himself on the in- 
 side and afterwards steals, both may be 
 convicted of breaking and entering; Com. 
 v. Lourey, 158 Mass. 18, 32 X. EL 940. 
 Where a window is slightly raised in the 
 daytime so as to prevent the bolt from being 
 effectual, it would not prevent the subse- 
 quent breaking and entering in the night- 
 time through the window from beins bur- 
 glary; Teople v. Dupree, 98 Mich. 26, 66 N. 
 W. 1040. The breaking of an inner door 
 of the house will be sufficient to constitute 
 a burglary; 1 Hale, PI. Cr. 553: 8 C. & P. 
 747; People v. Fralick. Lalor's Sup. (N. Y.) 
 63; 2 Bish. Cr. Law § 97 : or the opening of an 
 inner closed door; 2 East, P. C. 48; and it 
 is not necessary that such breaking be ac- 
 companied with an intention to commit a 
 felony in the very room entered ; Hart- 
 mann v. Com., 5 Pa. 00. Entry through an 
 open door in the night-time with intent to 
 steal is not burglary; Costello v. State 
 (Tex.) 21 S. W. 300. 
 
 Any. the least entry, with the whole or 
 any part of the body. hand, or foot or with 
 any instrument or weapon, introduced for 
 the purpose of committing a felony, will 
 he sufficient to constitute the offence; Co. 
 3d Inst. 04: 4 Bla. Com. 227; Bacon, Abr. 
 Burglary (B); Com. Dig. Justices, P. 4: Al- 
 len v. State. 40 Ala. 334. 91 Am. Doe. 177: 
 Franco v. State. 12 Tex. 276; Com. v. (Mov- 
 er. Ill Mass. 395; Harris v. People, 44 Mich. 
 305, 6 N. W. 077. Where a person enters a 
 chimney of a storehouse intending to go 
 down such into the store to steal, he is guilty 
 of burglary; Olds V. State. 97 Ala. 81, 12 
 Smith. 409. But the introduction of an in- 
 strument, in the act of breaking the house, 
 will not be sufficient entry unless it be in-
 
 BURGLARY 
 
 406 
 
 BURLAW COURTS 
 
 troduced for the purpose of committing a 
 felony; 1 Leach 406; 1 Mood. 183. The 
 whole physical frame need not pass within ; 
 2 Bish. Cr. Law § 92 ; 1 Gabb. Cr. Law 176. 
 
 There was, at common law, doubt wheth- 
 er breaking out of a dwelling-house would 
 constitute burglary; 4 Bla. Com. 227; 1 B. 
 & H. Lead. Cr. Cas. 540; but it was de- 
 clared to be so by stat. 12 Anne, c. 7, § 3, 
 and 7 & 8 Geo. IV. c. 29, § 11. The bet- 
 ter opinion seems to be that it was not so 
 at common law; Rolland v. Com., 82 Pa. 
 324, 22 Am. Rep. 75S ; Whart. Cr. L. 9th 
 ed. § 771; contra. State v. Ward. 43 Conn. 
 4S9. 21 Am. Rep. 665. As to what acts con- 
 stitute a breaking out, see 1 Jebb 99: 8 C. 
 & P. 747; 1 Russ. Cr. (Graves ed.) 792; 1 
 B. & H. Lead. Cr. Cas. 540. 
 
 The intention. The intent of the break- 
 ing and entry must be felonious ; if a felony, 
 however, be committed, the act will be pri- 
 ma facie evidence of an intent to commit 
 it ; 1 Gabb. Cr. Law 192. See Alexander v. 
 State, 31 Tex. Cr. R. 359, 20 S. W. 756; 
 State v. Scripture, 42 N. H. 485; People 
 v. Young, 65 Cal. 225, 3 Pac. 813. See State 
 v. Colter. 6 R. I. 195 ; Com. v. Tuck, 20 Pick. 
 (Mass.) 356; Lowder v. State, 63 Ala. 143, 
 35 Am. Rep. 9. If the breaking and entry 
 be with an intention to commit a trespass, or 
 a mere misdemeanor, and nothing further 
 is done, the offence will not be burglary ; 
 Com. v. Newell, 7 Mass. 245 ; State v. Coop- 
 er. 16 Vt. 551; People v. Urquidas, 96 Cal. 
 239, 31 Pac. 52 ; 1 Hale, PI. Cr. 560. 
 
 See Hamosocne; Breaking; Crepuscu- 
 lum. 
 
 It need not appear that the ulterior felony 
 was actually committed. And if a tramp 
 enters for shelter and is tempted to steal, 
 it is not burglary; Odgers, Com. L. 384. 
 
 BURGOMASTER. In Germany, this is the 
 title of an officer who performs the duties 
 of a mayor. 
 
 BURH. For a long time after the Ger- 
 manic invasion of England, it meant a fast- 
 ness. The hill-top that has been fortified is 
 a burh. Very often it has given its name to 
 a neighboring village; it is the future bor- 
 ough. The entrenchment around a great 
 man's house was a burh. Early in the 10th 
 century a burh came to have many men in 
 it and usually a moot was held there — a 
 burh-gemot. See Maitland, Domesday and 
 Beyond, 183. 
 
 BURIAL. The act of interring the dead. 
 
 No burial is lawful unless made in con- 
 formity with the local regulations; and 
 when a dead body has been found, it can- 
 not be lawfully buried until the coroner 
 has holden an inquest over it. In England 
 it is the practice for coroners to issue war- 
 rants to bury, after a view. See Dead 
 Body ; Cemetery. 
 
 BURLAW COURTS. In Scotch Law. As- 
 
 semblages of neighbors to elect burlaw men, 
 or those who were to act as rustic judges 
 in determining disputes in their neighbor- 
 hood. Skene; Bell, Diet. 
 
 BURNING. See Accident ; Fire. 
 
 BURNING IN THE HAND. When a lay- 
 man was admitted to benefit of the clergy 
 he was burned in the hand, "in the brawn 
 of the left thumb," in order that he might 
 not claim the benefit twice. This practice 
 was finally abolished by stat. 19 Geo. III. 
 c. 74; though before that time the burning 
 was often done with a cold iron; 12 Mod. 
 448; 4 Bla. Com. 267. See Benefit of 
 Clergy. 
 
 BURYING-GROUND. A place appropri- 
 ated for depositing the dead; a cemetery. 
 In Massachusetts, burying-grounds cannot 
 be appropriated to roads without the con- 
 sent of the owners. Mass. Gen. Stat. 244. 
 So in Pennsylvania by acts passed in 1849 
 and 1861. See Cemetery. 
 
 BUSHEL. The Winchester bushel, estab- 
 lished by the 13 Will. III. c. 5 (1701) was 
 made the standard of grain. A cylindrical 
 vessel, eighteen and a half inches in diam- 
 eter, and eight inches deep inside, contains 
 a bushel ; the capacity is 2145.42 cubic inch- 
 es. The bushel established by the 5 & 6 
 Geo. IV. c. 74, is to contain 2218.192 cubic 
 inches. This measure has been adopted in 
 many of the United States. In other states 
 the capacity varies. 
 
 See the subject discussed in report of the 
 Secretary of State of the United States to 
 the Senate, Feb. 22, 1S21. 
 
 BUSINESS. That which occupies the 
 time, attention, and labor of men for the 
 purpose of livelihood or profit, but it is not 
 necessary that it should be the sole occu- 
 pation or employment. It embraces every- 
 thing about which a person can be employ- 
 ed; Flint v. Stone Tracy Co., 220 U. S. 107, 
 31 Sup. Ct. 342, 55 L. Ed. 389, Ann. Cas. 
 1912B, 1312. The doing of a single act per- 
 taining to a particular business will not 
 be considered engaging in or carrying on 
 the business, yet a series of such acts would 
 be so considered. Lemons v. State, 50 Ala. 
 130; People v. Com'rs of Taxes of City of 
 New York, 23 N. Y. 244. 
 
 It is a word of large and indefinite im- 
 port; the legislature could not well have 
 used a larger word. Jessel, M. R., in 15 Ch. 
 D. 258. See Place of Business; Domicil. 
 
 BUSINESS HOURS. The time of the day 
 during which business is transacted. In re- 
 spect to the time of presentment and demand 
 of bills and notes, business hours generally 
 range through the whole day down to the 
 hours of rest in the evening, except when 
 the paper is payable at a bank or by a bank- 
 er; Cayuga County Bank v. Hunt, 2 Hill 
 (N. Y.) 635. See Flint v. Rogers, 15 Me.
 
 BUSINESS HOURS 
 
 407 
 
 BUYING TITLES 
 
 67; Lunt v. Adams, 17 id. 230; Byles, Bills 
 283. 
 
 The term "usual business hours" does not 
 mean the time an employer may require his 
 employe's services, but those of the com- 
 munity generally; Derosla v. R. Co., 18 Minn. 
 154 (GIL 119). 
 
 See Time. 
 
 BUTLERAGE. A certain portion of every 
 cask of wine imported by an alien, which 
 the king's butler was allowed to take. 
 
 Called also prisage; 2 Bulstr. 254. An- 
 ciently, it might be taken also of wine im- 
 ported by a subject. 1 Bla. Com. 315; Termes 
 de la Ley; Co well. 
 
 BUTT. A measure of capacity, equal to 
 one hundred and eight gallons; also denotes 
 a measure of land. Jac. Diet.; Cowell. See 
 Measure. 
 
 BUTTALS. The bounding lines of land at 
 the end; abuttals, which see. 
 
 BUTTS. The ends or short pieces of 
 arable lands left in ploughing. Cowell. 
 
 BUTTS AND BOUND. The lines bound- 
 ing an estate. The angles or points where 
 these lines change their direction. Cowell; 
 Spelman, Gloss. See Abuttals. 
 
 BUYING TITLES. The purchase of the 
 rights of a desscisee to lands of which a third 
 person has the possession. 
 
 When a deed is made by one who, though 
 having a legal right to land, is at the time 
 of the conveyance disseised, the sale is void 
 as a geueral rule of the common law: the 
 law will not permit any person to buy a 
 quarrel, or, as it is commonly termed, a 
 pretended title. Such a conveyance is an 
 offence at common law and by a statute of 
 32 lien. VIII. c. 9. This rule has been gen- 
 erally adopted in the United States, and is 
 affirmed by statute in some states; 3 Washb. 
 R. P. *596. In the following states the 
 act is unlawful, and the parties are subject 
 to various penalties in the different states: 
 in Connecticut, Hinman v. Hinman, 4 Conn. 
 575; Georgia, Helms v. May, 29 Ga. 121: In- 
 diana, Webb v. Thompson, 23 Ind. 432; Gal- 
 breath v. Doe, 8 Blackf. (Ind.) 3G6; Ken- 
 tucky, Wash v. McBrayer, 1 Dana iKy.) 566; 
 Williams v. Rogers, id. 374; see Young v. 
 Kiniberland, 2 Litt. (Ky.) 225; Aldridge v. 
 Kincaid, id. 393; Ewing's Heirs v. Savary. 
 4 Bibb (Ky.) 424; Massachusetts, Rrinley v. 
 Whiting, 5 Pick. (Mass.) 35G; Wade v. Lind- 
 sey, G Mete. (Mass.) 407; Mississippi, Bush 
 v. Cooper, 2G Miss. 599, 59 Am. Dec. 270; 
 Veto Hampshire, Dame v. Wingate, 12 N. II. 
 291; New York, Thurman v. Cameron, 24 
 Wend. (X. Y.) 87; North Carolina. Den v. 
 Shearer, 5 N, 0. 114; Iloyle v. Logan, 15 N. 
 C. 495; Ohio, Walker, Am. Law 297, 851 ; 
 Vermont, Selleck v. Starr. 6 Vt. L98; see 
 White v. Fuller, 3S Vt. 204; Park v. Pratt, 
 id. 553. 
 
 By the transaction, the grantor does not 
 lose his estate; Brinlej v. Whiting, 5 Pick. 
 (Mass.) 348; Sohier v. Collin, 101 Mass. 179. 
 
 In Illinois, Fetrow v. Merriwether, 53 ILL 
 i'7!>; Missouri, Rev. Stat. 119; Pennsylvania, 
 D v. Miller, 2 Watts (Pa.) 27'J; Ohio, 
 Hall's Lessee v. Ashby, 9 Ohio 9G, 34 Am. 
 Dec. 424; Wisconsin, Stewart v. .\b -Sweeney, 
 14 Wis. ill; South OaroUna, Poyas v. \\'il- 
 kins, 12 Rich. (S. C.) 420; Maine, I 
 c. 73, § 1; Michigan, Crane v. Bleeder, lii 
 Mich. 82, 4 Am. Rep. 430; such sales are 
 valid. See Champerty. 
 
 BY. Near, beside, passing in presence, and 
 it also may be used as exclusive. Rankin v. 
 Woodworth, 3 P. & W. (Pa.) 48. 
 
 When used descriptively in a grant it does 
 not mean in immediate contact with, but 
 near to the object to which it relates. It is 
 a relative term, meaning, when used in land 
 patents, very unequal and different distanc- 
 es; Wilson v. Inloes, 6 Gill (Md.) 121. 
 
 BY-BIDDING. Bidding with the conniv- 
 ance or at the request of the vendor. of goods 
 by auction, without an intent to purchase, 
 for the purpose of obtaining a higher price 
 than would otherwise be obtained. 
 
 By-bidders are also called puffers, which 
 see. It has been said that the practice is 
 probably allowable if it be done fairly, with 
 an intention only to prevent a sale at an 
 unduly low price; Latham's Ex'rs v. Morrow, 
 6 B. Monr. (Ky.) 630; Veazie v. Williams, 3 
 Sto. 622, Fed. Cas. No. 16,907; 15 M. & W. 
 371; Steele v. Ellmaker, 11 S. & R, (ra.) 86. 
 A bidder is required to act in good faith and 
 any combination to prevent a fair competi- 
 tion would avoid the sale; 3 B. & B. 116; 
 Martin v. Ranlett, 5 Rich. (S. C.) 541. 57 Am. 
 Dec. 770; Barnes v. Nays, S8 Ga. G9G, 16 S. 
 E. 67; Towle v. Leavitt, 23 N. H. 3G0, 55 
 Am. Dec. 195; Veazie v. Williams, 8 How. 
 (U. S.) 153, 12 L. Ed. 1018. See Bid; Auc- 
 tion. 
 
 Lord Mansfield held that the employment 
 of a single puffer was a fraud ; Cowp. 395 ; 
 this rule was afterwards relaxed, in equity 
 only, so as to allow a single bidder; 12 Ves. 
 477. The rule was stated in L. R. 1 Ch. 10, 
 to be, that a single puffer will vitiate a sale 
 in law, but may be allowed in equity; though 
 either at law or in equity, sueh bidding is 
 permissible upon notice at the sale. By 30 
 and •".! Vict c. 48, the rule in equity was de- 
 clared to be the same as at law. See L. R. 
 9 Eq. 60. Lord Mansfield's opinion was fol- 
 lowed in Appeal of Pennock, 14 Pa. 446, 53 
 Am. Dec. 561, per Gibson, C. J., overruling 
 Steele v. Ellmaker, 11 S. & R. (Pa.) 86; 
 Towle v. Leavitt, 23 N. II. 360, 55 Am. Dec. 
 L95; Baham v. Bach, 13 La. 287, 33 Am. Dec. 
 561. In New Jersey it seems that if there 
 is a Ixnia fide bid next before that of the 
 buyer, the bidding of puffers will not avoid 
 the sale (so held also in Veazie v. Williams, 
 3 Story 611, Fed. Cas. No. 16,907); but it is
 
 BY-BIDDING 
 
 408 
 
 BY-LAW MEN 
 
 intimated that it would be a better rule to for- j 
 bid puffing ; National Bank of the Metropolis 
 v. Sprague, 20 N. J. Eq. 159. Kent favors 
 Lord Mansfield's rule; 2 Kent *540. The 
 employment of a puffer to enhance the price 
 of property sold is a fraud; Fisher v. Her- 
 sey, 17 Hun (N. Y.) 373. So held in Caldwell 
 v. U. S. 8 How. (U. S.) 378, 12 L. Ed. 1115. 
 Exceptions to the rule may occur when it 
 does not appear that the buyer paid more 
 than the value of the property or than he 
 had determined to bid; Tomlinson v. Savage, 
 41 N. C. 430. A purchaser thus misled 
 must restore the property as soon as he dis- 
 covers the fraud; Backenstoss v. Stahler's 
 Adm'rs, 33 Pa. 251, 75 Am. Dec. 592 ; Veazie 
 v. Williams, 3 Story 611, 631, Fed. Cas. No. 
 16,907. In Phippen v. Stickney, 3 Mete. 
 (Mass.) 384, the validity of the sale is held 
 to depend upon tbe animus with which the 
 puffing is carried on. Where a sale is ad- 
 vertised to be "without reserve" or "posi- 
 tive," the secret employment of by-bidders 
 renders tbe sale voidable by the buyer ; Cur- 
 tis v. Aspinwall, 114 Mass. 187, 19 Am. Rep. 
 332. 
 
 BY BILL. Actions commenced by capias 
 instead of by original writ were said to be 
 by bill. 3 Bla. Com. 285, 2S6. See Harkness 
 v. Harkness, 5 Hill (N. Y.) 213. 
 
 The usual course of commencing an action in the 
 King's Bench was by a bill of Middlesex. In an ac- 
 tion commenced by bill It is not necessary to notice 
 the form or nature of the action; 1 Chit. PI. 283. 
 
 BY ESTIMATION. A term used in con- 
 veyances. In sales of land it not unfre- 
 quently occurs that the property is said to 
 contain a certain number of acres by esti- 
 mation, or so many acres, more or less. 
 When these expressions are used, if the land 
 fall short by a small quantity, the purchaser 
 will receive no relief. In one case of this 
 kind, the land fell short two-fifths, and the 
 purchaser received no relief; Ketchum v. 
 Stout, 20 Ohio 453; Stull v. Hurtt, 9 Gill 
 (Md.) 446; Jollife v. Hite, 1 Call (Va.) 301, 
 
 1 Am. Dec. 519: Stebbins v. Eddy, 4 Mas. 
 419, Fed. Cas. No. 13,342; Jones's Devisees 
 v. Carter, 4 H. & M. (Va.) 184; Boar v. 
 M'Cormick, 1 S. & R. (Pa.) 166; Mann v. 
 Pearson, 2 Johns. (N. Y.) 37; Howe v. Bass, 
 
 2 Mass. 382, 3 Am. Dec. 59; Snow v. Chap- 
 man, 1 Root (Conn.) 528. The meaning of 
 these words has never been precisely ascer- 
 tained by judicial decision. See Sugden, 
 Vend. 231, where the author applies the rule 
 to contracts in fieri. But this distinction 
 was not accepted in Noble v. Googins, 99 
 Mass. 234. 
 
 See More or Less; Subdivision. 
 
 BY-LAW MEN. In an ancient deed, cer- 
 tain parties are described as "yeomen and 
 by-laio men for this present year in Easin- 
 guold." 6 Q. B. 60. 
 
 They appear to have been men appointed for 
 some purpose of limited authority by the other In- 
 
 habitants, as the name would suggest, under by- 
 laws of the corporation appointing. 
 
 BY-LAWS. Rules and ordinances made 
 by a corporation for its own government. 
 See Drake v. R. Co., 7 Barb. (N. Y.) 539. 
 The office of a by-law is to regulate the con- 
 duct and define the duties of the members 
 towards the corporation and among them- 
 selves; Flint v. Pierce, 99 Mass. 70, 96 Am. 
 Dec. 691. A by-law was originally a town 
 law, from "by" the Scandinavian word for 
 town. So the Anglo-Saxon bylage, a private 
 law. Thomp. Corp. § 938. As to the analogy 
 between by-law and ordinance, see 34 Am. 
 Dec. 627, n.; Dillon, Munc. Corp. § 307. The 
 power to make by-laws is usually confer- 
 red by express terms of the charter creating 
 the corporation. When not expressly grant- 
 ed, it is given by implication, and it is inci- 
 dent to the very existence of a corporation; 
 Br ice, Ultra Vires (3d Ed.) 6; Moraw. Priv. 
 Corp. 491. When there is an express grant, 
 limited to certain cases and for certain pur- 
 poses, the corporate power of legislation is 
 confined to the objects specified, all others 
 being excluded by implication; 2 P. Wms. 
 207; Ang. Corp. 177. The power of making 
 by-laws, if the charter is silent, resides in 
 the members of the corporation; Union Bank 
 of Maryland v. Ridgely, 1 Harr. & G. (Md.) 
 324; 4 Burr. 2515; 6 Bro. P. C. 519; Morton 
 Gravel Road Co. v. Wysong, 51 Ind. 4; Peo- 
 ple v. Throop, 12 Wend. (N. Y.) 183; State 
 v. Ferguson, 33 N. H. 424; and the power to 
 repeal them ' also exists; Bank of Holly 
 Springs v. Pinson, 58 Miss. 4215, 38 Am. 
 Rep. 330; 7 Dowl. & R. 267; Smith v. Nelson, 
 18 Vt. 511. 
 
 By-laws, when contrary to the Constitution 
 or laws of the state or the U. S. are void 
 whether the charter authorizes the making 
 of such by-law or not; because no legisla- 
 ture can grant power larger than that which 
 it possesses; Coates v. City of New York, 7 
 Cow. (N. Y.) 5S5; Stuyvesant v. City of New 
 York, id. 604; First Nat. Bank v. Lanier, 11 
 Wall. (U. S.) 369, 20 L. Ed. 172; Jay Bridge 
 Corporation v. Woodman, 31 Me. 573; In re 
 Butcher's Beneficial Ass'n, 35 Pa. 151; Peo- 
 ple v. Fire Department, 31 Mich. 458; State 
 v. Curtis, 9 Nev. 325; 1 Q. B. D. 12. They 
 must not be inconsistent with the charter; 
 Green's Brice, Ultra Vires, 15. 
 
 By-laws must be reasonable; Cartan v. 
 Benevolent Society, 3 Daly (N. Y.) 20; Com. 
 v. Gill, 3 Whart. (Pa.) 228; State v. Mer- 
 chants' Exchange, 2 Mo. App. 96; and not 
 retrospective; People v. Crockett, 9 Cal. 112; 
 People v. Fire Department, 31 Mich. 458; 
 they bind the members; Cummings v. Web- 
 ster, 43 Me. 192; Weatherly v. Medical & 
 Surgical Society, 76 Ala. 567; Kent v. Min- 
 ing Co., 78 N. Y. 179; Harrington v. Ben- 
 evolent Ass'n. 70 Ga. 341; Flint v. Pierce, 
 99 Mass. 68, 96 Am. Dec. 691 ; who are pre- 
 sumed to have notice of them; Cummings
 
 BY-LAWS 
 
 409 
 
 BY-LAWS 
 
 v. Webster, 43 Me. 192; Village of Buffalo 
 v. Webster, 10 Wend. (N. Y.) 100; Clark v. 
 Life Ass'n, 14 App. D. C. 154, 43 L. R. A. 
 390; Purdy v. Life Ass'n, 101 Mo. App. 91, 
 74 S. W. 486; but a by-law void as against 
 strangers or non-assenting members, may be 
 good as a contract against assenting mem- 
 bers; Slee v. Bloom, 19 Johns. (N. Y.) 456, 
 10 Am. Dec. 273; Cooper v. Frederick, 9 Ala. 
 738; Davis v. Proprietors of Meeting-House, 
 8 Mete. (Mass.) 321. See State v. Overton, 
 24 N. J. L. 440, 61 Am. Dec. 671. It has been 
 held that third parties dealing with corpor- 
 ations ;ire not bound to take notice of by- 
 laws; Fay v. Noble, 12 Cush. (Mass.) 1; Wild 
 v. Bank, 3 Mas. 505, Fed. Cas. No. 17,646; 
 see Samuel v. Holladay, Woolw. 400, Fed. 
 Cas. No. 12,288, where a distinction was 
 raised between by-laws made by the corpo- 
 ration and those made by the directors, so 
 far as relates to notice to third parties; but, 
 contra, Adriance v. Roome, 52 Barb. (N. Y.) 
 399. 
 
 See Wllliston, 3 Sel. Essays on Anglo- 
 Amer. Leg. Hist. 213. 
 
 But it is said that where third persons who 
 deal with a corporation know its course of 
 business and follow a prescribed regulation, 
 It will be presumed that they dealt with ref- 
 erence thereto; Thomp. Corp. Sec. 492. A 
 court will not take judicial notice of the by- 
 laws of a corporation; Haven v. Asylum for 
 Insane. 13 N. H. 532, 38 Am. Dec. 512. Un- 
 less required by statute it is not necessary 
 
 that the by-laws of a private corporation 
 should be in writing; Knights and Ladies 
 of America v. Weber, 101 111. App. 488. 
 
 A by-law may be created and made bind- 
 ing upon the members by custom: Stafford 
 v. Banking Co., 16 Ohio Cir. Ct. 50. 
 
 A by-law which is acquiesced in for eleven 
 years must be presumed to be regularly 
 adopted; Marsh v. Mathias, 19 It a; 
 56 Pac. 1074; and by-laws adopted by 
 holders but not by an expressed vote of the 
 directors will be considered as adopted by 
 the directors, their conduct Indicating 
 they regarded ' the by-laws of the 
 
 corporation; Graebner v. Post, 119 Wi 
 96 N. W. 783, 100 Am. St Rep. 890. 
 
 In England the term by-law includes any 
 order, rule or regulation made by any local 
 authority or statutory corporation subordi- 
 nate to Parliament; 1 Odgers, C. L 91. 
 
 Under some circumstances an action may 
 be brought upon by-laws against members; 
 Thomp. Corp. § 949. 
 
 BY THE BYE. Without process. A dec- 
 laration is said to be filed by the bye when 
 it is filed against a party already in the cus- 
 tody of the court under process in another 
 suit. This might have been done, formerly, 
 where the party was under arrest and tech- 
 nically in the custody of the court ; and even 
 giving common bail was a sufficient custody 
 in the King's Bench ; 1 Sellou, Pr. 228 ; 1 
 Tidd. Pr. 419. It is no longer allowed ; 
 Archbold, New Pr. 293. 
 
 C. The third letter of the alphabet It 
 was used among the Romans to denote con- 
 demnation, being the initial letter of condem- 
 no. See A. 
 
 In Rhode Island as late as 1785 it was 
 branded on the forehead as part of the pun- 
 ishment for counterfeiting; Anderson, Diet 
 Law. 
 
 C. A. V. See Cubia Advisabi Vctlt. 
 
 C. C. An abbreviation of cepi corpus, I 
 have taken his body. 
 
 C. C; B. B. I have taken his body; bail 
 bond entered. See Capias ad Respondendum. 
 
 C. C. &. C. I have taken his body and he 
 is held. 
 
 C. F. &. I. Letters used in British con- 
 tracts for cost, freight and insurance, indi- 
 cating that the price fixed covers not only 
 cost but freight and insurance to be paid by 
 the seller; Benj. Saies, § 8S7; L. R. 8 Ex. 
 179. The invoice gives the buyer credit for 
 the freight he will have to pay on delivery 
 of the goods ; L. R. 5 H. L. 395, 406. A con- 
 tract for a shipment of iron to a port C F. 
 
 & I. does not of itself import a delivery at 
 that port; 7 II. & N. 574. 
 
 C. 0. D. Collect on delivery. Where goods 
 shipped are thus marked, the carrier in ad- 
 dition to his ordinary liabilities, and re- 
 sponsibilities is to collect the amount speci- 
 fied by the consignor, and for failure to re- 
 turn to him, either the price or the goods, 
 he has a right of action on the contract 
 against the carrier. See United States Exp. 
 Co. v. Keefer, 59 Ind. 264; Stale v. Intoxi- 
 cating Liquors, 73 Me. 27s : American Mer- 
 chants' Union Exp. Co. v. Schier, 55 111. 140; 
 Collender v. Dinsmore, 55 N. Y. 206, 14 Am. 
 Rep. 224. 
 
 These initials have acquired a fixed and 
 determinate meaning, which courts and ju- 
 ries may recognize from their general infor- 
 mation; State v. Intoxicating Liquors, 73 
 Me. 278. 
 
 The weight of authority Is said by Wil- 
 liston (Sales § 279) to support the view that 
 possession only is to be retained by the seller 
 until the price is paid, and that property 
 passes immediately on delivery to the car-
 
 C. O. D. 
 
 410 
 
 CABINET 
 
 rier, which view he prefers, citing U. S. v. 
 Exp. Co., 119 Fed. 240; Pilgreen v. State, 71 
 Ala. 36S; City of Carthage v. Munsell, 203 
 111. 474, 67 N. E. 831; State v. Intoxicating 
 Liquors, 98 Me. 464, 57 Atl. 79S; Higgins v. 
 Murray, 73 N. Y. 252; Coleman v. Lytle, 
 49 Tex. Civ. App. 44, 107 S. W. 562. That 
 property does not pass, see The Robert W. 
 Parsons, 191 U. S. 41, 24 Sup. Ct. 8, 48 L. 
 Ed. 43; State v. Exp. Co., 118 la. 447, 92 
 N. W. 66; State v. Wingfield, 115 Mo. 428, 
 22 S. W. 363, 37 Am. St. Rep. 406; State v. 
 O'Neil, 58 Vt. 140, 2 Atl. 586, 56 Am. Rep. 
 557. To the same effect E. M. Brash Cigar 
 Co. v. Wilson, 32 Okl. 153, 121 Pac. 223; 
 Guarantee Title & Trust Co. v. Bank, 185 
 Fed. 373 ; 107 C. C. A. 429. See also Harlan, 
 J., dissenting, in O'Neil v. Vermont, 144 U. 
 S. 323, 12 Sup. Ct. 393, 36 L. Ed. 450. See 
 cases collected in 4 Col. L. Rev. 541, by Prof. 
 Gregory. 
 
 See Sales ; Delivery. 
 
 CA. SA. An abbreviation of capias ad 
 satisfaciendum, q. v. 
 
 CABALLERIA. In Spanish Law. A quan- 
 tity of land, varying in extent in different 
 provinces. In those parts of the United 
 States which formerly belonged to Spain, 
 it is a lot of one hundred feet front, two 
 hundred feet depth, and equivalent to five 
 peonias. 2 White, New Recop. 49; 12 Pet. 
 (U. S.) 444, n. ; Escriche, Dice. Raz. 
 
 CABINET. Certain officers who, taken 
 collectively, form a council or advisory 
 board ; as the cabinet of the president of the 
 United States, which is composed of the 
 secretary of state, the secretary of the treas- 
 ury, the secretary of the interior, the secre- 
 tary of war, the secretary of the navy, the 
 secretary of agriculture, the attorney-gener- 
 al, the postmaster-general, the secretary of 
 commerce and the secretary of labor. See 
 Departments. 
 
 "The president — not the cabinet — is re- 
 sponsible for all the measures of the admin- 
 istration, and whatever is done by one of 
 the heads of department is considered as 
 done by the president, through the proper 
 executive agent;" 1 Cooley's Bla. Com. 232. 
 The cabinet, as such, has no legal existence. 
 In passing the act (1913) creating the depart- 
 ment of labor, a provision that the incum- 
 bent should "be a member of the cabinet" 
 was stricken out. 
 
 In case of the removal, death, resignation 
 or inability of both the president and vice- 
 president of the United States, then the 
 members of the cabinet shall act as presi- 
 dent until such disability is removed or a 
 president elected, in the following order: 
 the secretary of state, secretary of the treas- 
 ury, secretary of war, attorney-general, post- 
 master-general, secretary of the navy, and 
 secretary of the interior; 24 Stat. L. p. 1. 
 No provision is made for the succession of 
 
 the remaining (and more recently created) 
 secretaries. 
 
 These officers are the heads of their re- 
 spective departments ; and by the constitu- 
 tion (art. 2, sec. 2) the president may re- 
 quire the opinion in writing of these officers 
 upon any subject relating to the duties of 
 their respective departments. These officers 
 respectively have, under different acts of 
 congress, the power of appointing many in- 
 ferior officers charged with duties relating to 
 their departments. See Const, art. 2, sec. 2. 
 The cabinet meets frequently at the ex- 
 ecutive mansion, by direction of the presi- 
 dent. No record of its doings is kept; and 
 it has, as a body, no legal authority. Its 
 action is advisory merely; and the presi- 
 dent and heads of departments in the exe- 
 cution of their official duties may disregard 
 the advice of the cabinet and take the re- 
 sponsibility of independent action. 
 See Lerned, The President's Cabinet. 
 In Great Britain, the members of the 
 Ministry are the heads of various executive 
 departments of the government. The Prime 
 Minister and his associates, having been se- 
 lected from the party in power in the House 
 of Commons, may be said to be in control 
 of the House. If they lose their majority in 
 the House, they resign office in a body and a 
 new Ministry is then chosen from the new 
 party in power. 
 
 The head of the Cabinet and of the Min- 
 istry is the Prime Minister, who is selected 
 by the Crown. He chooses his colleagues, 
 but his choice really extends rather to the 
 division of offices and to the choice of min- 
 isters; he is in effect limited to the promi- 
 nent parliamentary leaders of his own party. 
 He almost invariably holds the office of First 
 Lord of the Treasury, unless he is a Peer, 
 and then that x>ffice is held by the govern- 
 ment leader of the House of Commons. His 
 resignation dissolves the Cabinet. Other 
 members of the Cabinet are: Lord Chancel- 
 lor; the Chancellor of the Exchequer; the 
 five Secretaries of State ; the First Lord of the 
 Admiralty ; the Lord President of the Council ; 
 the Lord Privy Seal ; the Attorney General ; 
 the Presidents of the Board of Trade, the 
 Local Government Board and the Board of 
 Education (of late years) ; the Chief Secre- 
 tary for Ireland (except when the Lord Lieu- 
 tenant is a member) ; the Secretary for Scot- 
 land; and the Chancellor of the Duchy of 
 Lancaster (usually). The President of the 
 Board of Agriculture, and the Postmaster 
 General are often members; the First Com- 
 missioner of Works and the Lord Chan- 
 cellor of Ireland (occasionally). The tenden- 
 cy now is said to be towards including the 
 head of any considerable branch of the ad- 
 ministration. Lowell, Gov. of Engl. 
 
 The king, under the British constitution, 
 is irresponsible; or, as the phrase is, the 
 king can do no wrong. (See that title.) The
 
 CABINET 
 
 411 
 
 CADI 
 
 real responsibility of government In that 
 country, therefore, rests with his ministers, 
 some of whom constitute the cabinet. The 
 king may dismiss bis ministers if they do 
 not possess his confidence; but they are sel- 
 dom dismissed by the king. They ordinarily 
 resign when they cannot command a majori- 
 ty in favor of their measures in the house 
 of commons. 
 
 CABOTAGE. A nautical term from the 
 Spanish, denoting strictly navigation from 
 cape to cape along the coast without going 
 out into the open sea. In International Law, 
 cabotage is identified with coasting-trade so 
 that it means navigating and trading along 
 the coast between the ports thereof. In con- 
 struing this term in commercial treaties and 
 International Law no consideration need be 
 given to the fact that municipal laws some- 
 times attach a meaning absolutely different 
 from that it has or can have in Internation- 
 al Law. 
 
 It is the universally recognized law of na- 
 tions that every littoral state can exclude 
 foreign merchantmen from the cabotage with- 
 in the maritime belt, just as it can exclude 
 foreigners from the fisheries therein. 
 
 In commercial treaties the meaning of 
 cabotage has been stretched so as to exclude 
 "sea-trade between any two ports of the same 
 country, whether on the same coast or differ- 
 ent coasts (cabotage petit or grand cabotage), 
 provided always that the different coasts 
 are all of them the coasts of the same 
 country as a political and geographical unit." 
 Thus Russia excludes foreigners from trade 
 between Russian ports and Vladivostok. The 
 United States makes a further extension of 
 the word so as to exclude trade between 
 ports of the United States proper and ports 
 in the Philippines, Porto Rico and the Ha- 
 waiian Islands. 
 
 CACICAZGOS. In Spanish Law. Lands 
 held in entail by the caciques in Indian vil- 
 lages in Spanish America. 
 
 CADASTRE. The official statement of the 
 quantity and value of real property in any 
 district, made for the purpose of justly ap- 
 portioning the taxes payable on such prop- 
 erty. 12 Pet (U. S.) 428, n. ; 3 Am. St Pap. 
 679. 
 
 CADERE (Lat). To fall ; to fail ; to end ; 
 to terminate. 
 
 The word was generally used to denote the ter- 
 mination or failure of a writ, action, complaint, or 
 attempt: as, cadit actio (the action fails), cadit as- 
 sises, (the assise abates), cadere causa or a causa (to 
 lose a cause). Abate will translate cadere as often 
 as any other word, the general signification being, 
 as stated, to fail or cease. Cadere ab actione (liter- 
 ally, to fall from an action), to fail in an action; 
 cadere in partem, to become subject to a division. 
 
 To become; to be changed to; cadit assisa 
 in juratam (the assize has become a jury). 
 Calvinus, Lex. 
 
 CADET. A younger brother. One trained 
 for the army or navy. 
 
 CADI. A Turkish civil magistrate. 
 
 CADUCA (Lat cadere, to fall). In Civil 
 Law. An inheritance; an escheat; every 
 thing which falls to the legal heir by descent 
 
 Bona caduca are said to be those to which no 
 heir succeeds, equivalent to escheats. Du Cange. 
 
 Glans caduca, "the acorn which has fallen to the 
 ground," is used in a famous judgment of Keke- 
 wich, J., in [1902] 1 Ch. 847, where a fund in court 
 belonging to an Austrian intestate, who was a 
 bastard, was held not to go to the Austrian govern- 
 ment by the law of Austria, but to the British crown 
 by the law of England. 
 
 CADUCARY. Relating to or of the nature 
 of escheat, forfeiture or confiscation. 2 Bla. 
 Com. 245. 
 
 C/£SARIAN OPERATION. A surgical op- 
 eration whereby the foetus, which can neither 
 make its way into the world by the ordinary 
 and natural passage, nor be extracted by 
 the attempts of art, whether the mother and 
 foetus be yet alive, or whether either of 
 them be dead, is by a cautious and well-tim- 
 ed operation taken from the mother with a 
 view to save the lives of both, or either of 
 them. 
 
 If this operation be performed after the 
 mother's death, the husband cannot be ten- 
 ant by the curtesy ; since his right begins 
 from the birth of the issue, and is consum- 
 mated by the death of the wife ; but if moth- 
 er and child are saved, then the husband 
 would be entitled after her death. Wharton. 
 
 C/ETERIS PARIBUS (Lat). Other things 
 being equal. 
 
 C/ETERORUM. See Administration. 
 
 CALEFAGIUM. A right to take fuel year- 
 ly. Blount 
 
 CALENDAR. An almanac. 
 Julius Cssar ordained that the Roman year 
 should consist of three hundred and sixty-five days, 
 except every fourth year, which should contain 
 three hundred and sixty-six— the additional day to 
 be reckoned by counting the 24th day of February 
 (which was the 6th of the calends of March) twice. 
 See Bissextile. This period of time exceeds the 
 solar year by eleven minutes or thereabouts, which 
 amounts to the error of a day in about one hun- 
 dred and thirty-one years. In 15S2 the error amount- 
 ed to eleven days or more, which was corrected by 
 Pope Gregory. Out of this correction grew the dis- 
 tinction between Old and New Style. The Gregorian 
 or New Style was introduced into England in 1752, 
 the 2d day of September (O. S.) of that year being 
 reckoned as the 14th day of September (N. S.). 
 
 A list of causes pending in a court; as 
 court calendar. 
 
 In Criminal Law. A list of prisoners, con- 
 taining their names, the time when they 
 were committed and by whom, and the cause 
 of their commitments. 
 
 CALENDS. See Ides. 
 
 CALIFORNIA. The eighteenth state ad- 
 mitted to the Union. 
 
 In 1534 a Portuguese navigator In the Spanish 
 service discovered the Gulf of California and pen- 
 etrated into the mainland, but no settlement was 
 made until about a century afterwards, when the 
 Franciscan Fathers planted a mission on the site 
 of San Diego ; other settlements soon followed, and
 
 CALIFORNIA 
 
 412 
 
 CALIFORNIA 
 
 in a short time the country was entirely under the 
 control of the priests, who accumulated great wealth. 
 The Spanish power in the territory now constituting 
 California was overthrown by the Mexican revolu- 
 tion in 1822, and the secular government by the 
 priests was abolished. By the treaty of Guadalupe 
 Hidalgo, May 30, 1848, terminating the war between 
 the United States and Mexico, the latter country 
 ceded to the United States for $15,000,000 a large 
 tract of land including the present states of Cali- 
 fornia, Nevada, and Utah, and part of Colorado and 
 Wyoming, and of the present territories of Arizona 
 and New Mexico, and the whole tract was called the 
 territory of New Mexico. 
 
 The commanding officer of the U. S. forces exer- 
 cised the duties of civil governor at first, but June 
 3, 1849, Brigadier-General Riley, then in command, 
 issued a proclamation for holding an election Au- 
 gust 1, 1849, for delegates to a general convention to 
 frame a state constitution. 
 
 The convention met at Monterey, Sept. 1, 1849 ; 
 adopted a constitution on October 10, 1849, which 
 was ratified by a vote of the people, November 13, 
 1849. At the same time an election was held for 
 governor and other state officers, and two members 
 of congress. 
 
 The first legislature met at San Jose, December 
 15, 1849. General Riley, on December 20, 1849, re- 
 signed the administration of civil affairs to the 
 newly elected officers under the constitution, and 
 shortly thereafter two United States senators were 
 elected. 
 
 In March, 1850, the senators and representatives 
 submitted to congress the constitution, with a me- 
 morial asking the admission of the state into the 
 American Union. 
 
 On September 9, 1850, congress passed an act ad- 
 mitting the state into the Union on an equal footing 
 with the original states, and allowing her two repre- 
 sentatives in congress until an apportionment ac- 
 cording to an actual enumeration of the inhabitants 
 of the United States. The third section of the act 
 provides for the admission, upon the express con- 
 dition that the people of the state, through their 
 legislation or otherwise, shall never interfere with 
 the primary disposal of the public lands within its 
 limits, and shall not pass any law or do any act 
 whereby the title of the United States to any right 
 to dispose of the same shall be impaired or ques- 
 tioned; and that they shall never lay any tax or 
 assessment of any description whatsoever upon the 
 public domain of the United States, and that in no 
 case shall non-resident proprietors who are citizens 
 of the United States be taxed higher than residents; 
 and that all the navigable waters within the state 
 shall be common highways, and forever free, as well 
 to the inhabitants of the state as to the citizens of 
 the United States, and without any tax, impost, or 
 duty therefor. 
 
 Congress passed an act, March 3, 1851, to ascertain 
 and settle the private land claims in the state of 
 California. By this act a board of commissioners 
 was created, before whom every person claiming 
 lands in California, by virtue of any right or title 
 derived from the Spanish or Mexican governments, 
 was required to present his claim, together with 
 such documentary evidence and testimony of wit- 
 nesses as he relied upon. From the decision of this 
 board an appeal might be taken to the district court 
 of the United States for the district in which the 
 land was situated. Both the board and the court, 
 on passing on the validity of any claim, were re- 
 quired to be governed by the treaty of Guadalupe 
 Hidalgo, the law of nations, the laws, usages, and 
 customs of the government from which the claim 
 was derived, the principles of equity, and the de- 
 cisions of the supreme court of the United States. 
 A large part of the best agricultural lands of the 
 state was claimed under Spanish and Mexican 
 grants. The evidence in support of these grants 
 was in many instances meagre and unsatisfactory, 
 and the amount of litigation arising therefrom was 
 enormous and has not yet wholly ceased. The board 
 of commissioners, having completed its work, went 
 out of existence. 
 By an act passed September 28, 1850, congress de- 
 
 clared all laws of the United States, not locally In- 
 applicable, in force within the State. 
 
 The constitution adopted in 1849 was amended 
 November 4, 1856, and September 3, 1862, and on 
 January 1, 1880, was superseded by the present con- 
 stitution, which had been framed by a convention 
 March 3, 1879, and adopted by popular vote May 7, 
 1879. It was further amended in 1898, 1902 and 1906. 
 Section 1, article IV amended in 1911 by providing 
 for initiative, referendum and recall ; section 1, ar- 
 ticle II, amended by giving right of equal suffrage 
 to women in 1912. 
 
 CALL. An agreement to sell. Treat v. 
 White, 181 U. S. 264, 21 Sup. Ct. 611, 45 L. 
 Ed. 853. 
 
 It is within the War Revenue Act of June 
 13, 1898, requiring a revenue stamp on all 
 sales or agreements to sell or memoranda of 
 sale or deliveries or transfers of stock; id. 
 
 CALL DAY. There are four call days at 
 the Inns of Court in London: In January, 
 May, June and November. 
 
 CALLING THE PLAINTIFF. A formal 
 method of causing a nonsuit to be. entered. 
 
 When a plaintiff perceives that he has not given 
 evidence to maintain his issue, and intends to be- 
 come nonsuited, he withdraws himself; whereupon 
 the crier is ordered to call the plaintiff, and on his 
 failure to appear he becomes nonsuited. The phrase 
 "let the plaintiff be called," which occurs In some 
 of the earlier state reports, is to be explained by 
 reference to this practice. See 3 Bla. Com. 376; 2 C. 
 & P. 403; Porter v. Perkins, 5 Mass. 236, 4 Am. 
 Dec. 52 ; Trask v. Duval, 4 Wash. C. C. 97, Fed. 
 Cas. No. 14,143 ; Non Dicit. 
 
 CALLING TO THE BAR. Conferring the 
 degree or dignity of barrister upon a mem- 
 ber of the inns of court. Holthouse, Diet. 
 
 "Calls to the bench and bar are to be made 
 by the most ancient, being a reader, who is 
 present at supper on call night." 1 Black 
 Books of Lincoln's Inn. 339. But see Bae- 
 kisteb as to admission to the bar. 
 
 CALUMNI/E JUSJURANDUM (Lat). The 
 oath against calumny. 
 
 Both parties at the beginning of a suit, In certain 
 cases, were obliged to take an oath that the suit 
 was commenced in good faith and in a firm belief 
 that they had a good cause. Bell, Diet. It was a 
 fore-oath — before suit brought. The object was to 
 prevent vexatious and unnecessary suits. It was 
 especially used in divorce cases, though of little 
 practical utility; Bish. Marr. & Div. § 353; 2 Bish. 
 Marr. Div. & Sep. § 264. A somewhat similar pro- 
 vision is to be found In the requirement made in 
 some states that the defendant shall file an affidavit 
 of merits. 
 
 CALUMNIATORS. In Civil Law. Persons 
 who accuse others, whom they know to be 
 innocent, of having committed crimes. 
 
 CALVO DOCTRINE. The doctrine stated 
 by the Argentine jurist, Carlos Calvo, that 
 a government is not bound to indemnify 
 aliens for losses or injuries sustained by 
 them in consequence of domestic disturb- 
 ances or civil war, where the state is not at 
 fault, and that therefore foreign states are 
 not justified in intervening, by force or oth- 
 erwise, to secure the settlement of claims of 
 their citizens on account of such losses or in- 
 juries. Such intervention, Calvo says, is not
 
 CALVO DOCTRINE 
 
 413 
 
 CANADA 
 
 in accordance with the practice of European 
 States towards one-another, and is contrary 
 to the principle of state sovereignty. 3 Cal- 
 vo §§ 1280, 1297. The Calvo Doctrine is to 
 be distinguished from the Drago Doctrine 
 (q. v.). 
 
 See 18 Green Bag. 377. 
 
 CAMBIALE JUS. The law of exchange. 
 
 CAMBIATORS. See Bank. 
 
 CAM BIO. Exchange. 
 
 CAMBIPARTIA. Champerty. 
 
 CAMBIPARTICEPS. A chainpertor. 
 
 CAMBIST. A person skilled in exchange; 
 one who deals or trades in promissory notes 
 or bills of exchange ; a broker. 
 
 CAMBIUM. Change, exchange. Applied 
 in the civil law to exchange of lands, as well 
 as of money or debts. Du Cange. 
 
 Cambium reale or manuale was the term generally 
 used to denote the technical common-law exchange 
 of lands; cambium locale, mercantile, or trajec- 
 titium, was used to designate the modern mercan- 
 tile contract of exchange, whereby a man agrees, in 
 consideration of a sum of money paid him in one 
 place, to pay a like sum in another place. Pothier, 
 de Change, n. 12; Story, Bills § 2. 
 
 CAMERA. See In Camera. 
 
 CAMERA REGIS. In old English law a 
 chamber of the king; a place of peculiar 
 privileges especially in a commercial point 
 of view. The city of London was so called. 
 Year Book, p. 7, Hen. VI. 27; Burrill, Law 
 Die. 
 
 CAMERA SCACCARII. The Exchequer 
 Chamber. Spelman, Gloss. 
 
 CAMERA STELLATA. The Star Chamber. 
 
 CAMERARIUS. A chamberlain ; a keeper 
 of the public money ; a treasurer. Spelman, 
 Gloss. Cambellarius; 1 Perr. & D. 243. 
 
 CAMPARTUM. A part or portion of a 
 larger field or ground, which would other- 
 wise be in gross or in common. See Cham- 
 perty. 
 
 CAMPERTUM. A cornfield; a field of 
 grain. Cowell ; Whishaw. 
 
 CAMPUM PARTERE. To divide the land. 
 See Champerty. 
 
 CAMPUS (Lat. a field). In old European 
 law an assembly of the people so called from 
 being held in the open air, in some plain 
 capable of containing a large number of per- 
 sons. 1 Robertson's Charles V. App. n. 38. 
 
 In feudal or old English law a field or 
 plain. Burrill, Law Diet. 
 
 CANADA. The name given to a confed- 
 eration of all the British possessions in 
 North America except Newfoundland. 
 
 The first explorations of this country, of which 
 any authentic information exists, were by Jacques 
 Cartier, between the years 1534 and 1554, thus giv- 
 ing to France the first claim upon its territory. 
 Great activity was shown during these and the suc- 
 ceeding years on the part of Great Britain and 
 
 France to acquire territorial jurisdiction on the 
 newly discovered continent, and the division lines 
 between their acquisitions were not very clearly 
 marked. Those of France included Florida in the 
 south and the'lands watered by the St. Lawrence in 
 the north, and to it all the name of "New France" 
 was given. In 1603 an expedition for trading pur- 
 poses was fitted out under the command of Samuel 
 Champlain, whose explorations up the river St. 
 Lawrence and its tributary, the Richelieu River, 
 brought him to the lake which still bears his name. 
 
 The viceroyalty of New France was conferred in 
 1612 upon the Prince de Conde, who made a formal 
 assignment of it in 1619 to Admiral Montmorency, 
 who personally visited the country. 
 
 In 1628, under the rule of Cardinal Richelieu in 
 France, the colony was ceded to "La Compagnie de 
 Cents AssocieV (The Company of the One Hundred 
 Associates), a trading company, but armed, like the 
 Hudson Bay Company in later years, with full pow- 
 er for the administration of justice in the primitive 
 forms practicable in new countries and with mixed 
 populations. 
 
 This company had an unsuccessful career finan- 
 cially, and upon its disorganization, in 1663, Louis 
 XIV. resumed territorial jurisdiction over the col- 
 ony, and in April of that year published an edict 
 establishing a "Sovereign Council" for the govern- 
 ment of Canada, and this council was specially in- 
 structed to prepare laws and ordinances for the ad- 
 ministration of justice, framed as much as possible 
 upon those then in force in France under the pro- 
 visions of the "Custom of Paris." 
 
 For more than one hundred years all the legal 
 business of the province was determined by this 
 council — in fact, until the conquest by the English 
 in 1759. By the terms of the capitulation, it was 
 stipulated and conceded that the ancient laws of 
 land tenure should continue to subsist, but it was 
 understood that the English criminal and com- 
 mercial law should be introduced and adopted. 
 
 Under this stipulation the law of France, as it 
 existed in 1759, was recognized as the civil law of 
 Canada, and has always since formed the basis of 
 that law — modified, of course, after the subsequent 
 establishment of a representative government in the 
 colony, by the statutory provisions of the colonial 
 parliaments. This result was applicable, however, 
 only to that section of the country which subse- 
 quently was called Lower Canada, now the province 
 of Quebec. The portion of the colony since known 
 as the province of Upper Canada (now the province 
 of Ontario) was then unsettled, and being subse- 
 quently colonized from Great Britain and her other 
 dependencies, the whole body of law, civil as well 
 as criminal, was based upon that in force in Eng- 
 land. 
 
 Under the provisions of a statute passed by the 
 imperial parliament of Great Britain in 1774, called 
 "The Quebec Act," a legislative council of twenty- 
 three members was established for the province, 
 with power to enact laws. In 1791, Pitt Introduced 
 the bill into the English House of Commons which 
 gave a constitution to Canada and divided it into 
 the two provinces of Upper and Lower Canada. 
 Since then (with the short interregnum from 1837 to 
 1841), regular parliaments have been held, at which 
 the jurisprudence of the country and the establish- 
 ment of its courts have been determined by formal 
 acts. 
 
 In 1867, the confederation of the different North 
 American dependencies of Great Britain, under the 
 name of the "Dominion of Canada," was consum- 
 mated by an act of the imperial parliament, at the 
 instance and request of the different provinces, 
 including Upper and Lower Canada (under the 
 names of Ontario and Quebec), New Brunswick, and 
 Nova Scotia, to which have since been added Prince 
 Edward Island, Manitoba, and British Columbia 
 (all the provinces except Newfoundland). The act 
 under which this confederation was established — 
 called The British North American Act (in effect 
 July 1, 1868)— contains the provisions of a written 
 constitution, under which the executive government 
 and authority is declared to be vested in the sover-
 
 CANADA 
 
 414 
 
 CANAL 
 
 eign of Great Britain, whose powers are deputed to 
 a governor-general, nominated by the imperial gov- 
 ernment, but whose salary is paid by the Dominion. 
 The form of government is modelled after that of 
 Great Britain. The governor-general acts under 
 the guidance of a council, nominally selected by 
 himself, but which must be able to command the 
 support of a majority in that branch of parliament 
 which represents the suffrages of the electors. 
 
 The Judicial Power.— There is a supreme court 
 with ultimate jurisdiction in matters affecting the 
 Dominion and as a final court of appeal from the 
 provincial courts. It consists of a chief justice and 
 five puisne judges, and holds three sessions a year 
 at Ottawa. The exchequer court can hold sessions 
 at any town, and is a colonial court of admiralty 
 and exercises admiralty jurisdiction throughout 
 Canada and the waters thereof. Certain local judg- 
 es of admiralty are created with limited jurisdic- 
 tion, the appeal from whose decisions lies to the 
 Court of Exchequer, or it may lie direct to the Su- 
 preme Court of Canada under certain conditions. 
 
 CANAL. An artificial cut or trench in 
 the earth, for conducting and confining wa- 
 ter to be used for transportation. See Bish- 
 op v. Seeley, 18 Conn. 394. 
 
 Public canals originate under statutes and 
 charters enacted to authorize their construc- 
 tion and to protect and regulate their use. 
 They are in this country constructed and 
 managed either by the state itself or by com- 
 panies incorporated for the purpose. These 
 commissioners and companies are armed with 
 authority to appropriate private property for 
 the construction of their canals, in exercis- 
 ing which they are bound to a strict com- 
 pliance with the statutes by which it is con- 
 ferred. Where private property is thus tak- 
 en, it must be paid for in gold and silver; 
 State v. Beackmo, 8 Blackf. (Ind.) 246. Such 
 payment need not precede or be cotempo- 
 raneous with the taking; Rogers v. Brad- 
 shaw, 20 Johns. (N. Y.) 735; Hankins v. 
 Lawrence, 8 Blackf. (Ind.) 266; though, if 
 postponed, the proprietor of the land taken 
 is entitled to interest; People v. Canal 
 Com'rs, 5 Denio (N. Y.) 401 ; Harness v. Canal 
 Co., 1 Md. Ch. Dec. 248. A city through 
 which a canal passes cannot construct levees 
 along its banks and recover the cost thereof 
 from the canal company; City of New Or- 
 leans v. Canal & Nav. Co., 42 La. Ann. 6, 7 
 South. 63. 
 
 After the appropriation of land for a 
 canal, duly made under statute authority, 
 though the title remains in the original own- 
 er until he is paid therefor, he' cannot sus- 
 tain an action against the party taking the 
 same for any injury thereto ; Turrell v. Nor- 
 man, 19 Barb. (N. Y.) 263 ; Ligat v. Com., 19 
 Pa. 456. But if there be a deviation from 
 the statute authority, the statute is no pro- 
 tection against suits by persons injured by 
 such deviation; Lynch v. Stone, 4 Denio (N. 
 Y.) 356 ; Farnum v. Canal Corp., 1 Sumn. 46, 
 Fed. Cas. No. 4,675 ; 2 Dow. 519. Though a 
 special remedy for damages be given by a 
 statute authorizing the construction of a 
 canal, the party injured thereby is not bar- 
 red of his common-law action ; Denslow v. 
 
 New Haven & N. Co., 16 Conn. 98. But see, 
 to the contrary, Stevens v. Canal, 12 Mass. 
 466 ; Town of Lebanon v. Olcott, 1 N. H. 339. 
 The legislature has the exclusive power to 
 determine when land may be taken for a 
 canal or other public use, and the courts can- 
 not review its determination in that respect ; 
 Harris v. Thompson, 9 Barb. (N. Y.) 350; 
 Hankins v. Lawrence, 8 Blackf. (Ind.) 266. 
 In navigating canals, it is the duty of the 
 canal-boats to exercise due care in avoiding 
 collisions, and in affording each other mu- 
 tual accommodation; and for any injury re- 
 sulting from the neglect of such care the 
 proprietors of the boats are liable in dam- 
 ages ; 1 Sher. & Redf. Neg. 404 ; Rathbun v. 
 Payne, 19 Wend. (N. Y.) 399 ; Sheerer v. Kis- 
 singer, 1 Pa. 44. The proprietors of the 
 canal will be liable for any injury to canal- 
 boats occasioned by a neglect on their part 
 to keep the canal in proper repair and free 
 from obstructions; Riddle v. Proprietors, 7 
 Mass. 169, 5 Am. Dec. 35; James River & 
 Kanawha Co. v. Early, 13 Gratt. (Va.) 541; 
 Muir v. Canal Co., 8 Dana (Ky.) 161 ; Moore 
 v. Canal, 7 Ind. 462; Griffith v. Follett, 20 
 Barb. (N. Y.) 620 ; 11 A. & E. 223. Where a 
 state exercises control over a canal, it is lia- 
 ble for injuries caused by an officer's negli- 
 gence in failing to repair bridges over it; 
 Woodman v. People, 127 N. Y. 397, 28 N. E. 
 20. 
 
 In regard to the right of the proprietors of 
 canals to tolls, the rule is that they are only 
 entitled to take them as authorized by stat- 
 ute, and that any ambiguity in the terms of 
 the statute must operate in favor of the 
 public; 2 B. & Ad. 792; Perrine v. Canal 
 Co., 9 How. (U. S.) 172, 13 L. Ed. 92 ; Myers 
 v. Foster, 6 Cow. (N. Y.) 567; Delaware & 
 H. Canal Co. v. Coal Co., 21 Pa. 131. A stat- 
 utory authority to charge tolls upon boats, 
 etc., used for transportation along it gives 
 no authority to charge tolls on tugs while 
 towing vessels through the canal or on the 
 return trip; Sturgeon Bay Harbor Co. v. 
 Leatham, 164 111. 239, 45 N. E. 422. 
 
 A canal constructed and maintained at 
 private expense is like a private highway 
 over which the public is permitted to travel, 
 but in which it obtains no vested right ; Pot- 
 ter v. JRy. Co., 95 Mich. 3S9, 54 N. W. 956. 
 
 An easement in the waters of state canals 
 cannot be acquired by prescription; Bur- 
 bank v. Fay, 65 N. Y. 57. 
 
 CANAL ZONE. See Panama Canal. 
 
 CANCELLARIA. Chancery; the court of 
 chancery. Curia cancellaria is also used in 
 the same sense. See 4 Bla. Com. 46 ; Cowell. 
 
 CANCELLAR1US (Lat). A chancellor. 
 
 In ancient law, a janitor or one who stood 
 at the door of the court and was accustomed 
 to carry out the commands of the judges ; 
 afterwards a secretary ; a scribe ; a notary. 
 Du Cange.
 
 CANCEL.LAR1US 
 
 415 
 
 CANCELLARIUS 
 
 In early English law, the keeper of the 
 king's seal. 
 
 The office of chancellor Is of Roman origin. He 
 appears at first to have been a chief scribe or sec- 
 retary, but was afterwards invested with judicial 
 power, and had superintendence over the other 
 officers of the empire. From the Romans the title 
 and office passed to the church ; and therefore ev- 
 ery bishop of the Catholic church has, to this day, 
 his chancellor, the principal Judge of his consistory. 
 In ecclesiastical matters it was the duty of i! 
 cellarius to take charge of all matters relating to 
 the books of the church,— acting as librarian ; to 
 correct the laws, comparing the various readings, 
 and also to take charge of the seal of the church, 
 affixing it when necessary in the business of the 
 church. 
 
 When the modern kingdoms of Europe were es- 
 tablished upon the ruins of the empire, almost 
 every state preserved its chancellor, with different 
 Jurisdictions and dignities, according to their dif- 
 ferent constitutions. In all he seems to have had a 
 supervision of all charters, letters, and such other 
 public instruments of the crown as were authenti- 
 cated in the most solemn manner ; and when seals 
 came into use, he had the custody of the public seal. 
 
 According to Du Cange it was under the reign of 
 the Merovingian kings in France that the cancel- 
 larii first obtained the dignity corresponding with 
 that of the English chancellor, and became keepers 
 of the king's seal. 
 
 In this latter sense only of keeper of the seal, the 
 word chancellor, derived hence, seems to have been 
 used in the English law ; 3 Bla. Com. 46. 
 
 The origin of the word has been much disputed; 
 but it seems probable that the meaning assigned by 
 Du Cange is correct, who says that the cancellarii 
 were originally the keepers of the gate of the king's 
 tribunal, and who carried out the commands of the 
 judges. Under the civil law their duties were va- 
 ried, and gave rise to a great variety of names, as 
 notarius, a notis, abactis, secretarius, a secretis, 
 a cancellis, a responses, a libellis, generally derived 
 from their duties as keepers and correctors of the 
 statutes and decisions of the tribunals. 
 
 The transition from keeper of the seal of the 
 church to keeper of the king's seal would be natu- 
 ral and easy in an age when the clergy were the 
 only persons of education sufficient to read the 
 documents to which the seal was to be appended. 
 And this latter sense is the one which has remained 
 and been perpetuated in the English word Chancel- 
 lor. See Du Cange; Spelman, Gloss.; Spence, Eq. 
 Jur. 78 ; 3 Bla. Com. 46. 
 
 It was an evolution which passed through several 
 stages, the first of which had its origin in the pe- 
 riod when the king was actually as well as theoret- 
 ically the fountain of justice and equity. At first he 
 personally heard their complaints and administered 
 Justice to his subjects. 
 
 It was, however, after the growth of the popula- 
 tion had Increased the applications to the king for 
 the redress of grievances to such an extent as to re- 
 quire him to seek assistance, that the officer after- 
 wards called chancellor appeared. He was then a 
 scribe to whom were referred the complaints made, 
 and it was his duty to determine if they should be 
 entertained and the form of writ adapted to the 
 case. Thus what was afterwards the primary duty 
 of the chancellor was devolved upon, this officer, 
 called the referendarius, and known by this title, 
 according to Selden, during the reign of Ethelbert 
 and subsequent kings to Edred. To separate and 
 protect them from the suitors this officer and his 
 assistants sat by a lattice, the laths of which were 
 called cancelli, and to this commentators ascribe the 
 origin of the word cancellarius, which was used in 
 the reign of the Confessor and is not clearly traced 
 to an earlier date. At that time little more appears 
 than that he was an officer who issued writs, but 
 during Anglo-Saxon times he seems to have been 
 little more, and the charter of Westminster shows 
 his precedence at that time to have been after two 
 archbishops, nine bishops, and seven abbots, though 
 now the lord chancellor is second only after the 
 
 royal family. True, it is said by Ingulphus that 
 Edward the Elder appointed Torquatel his chancel- 
 lor, so that whatever business of the king, spiritual 
 or temporal, required a decision, should be decided 
 by his advice and decree, and. b..ing so decided, the 
 decree should be held irrevocable ; Spence, Eq. Jur. 
 78, n. Nevertheless there does not seem to have been 
 at that period a conception of the office as one main- 
 tained for the exercise of judicial functions. Ac- 
 cording to Pollock and Maitland, "•even in Edward 
 I. 's reign it is not in our view a court of justice; 
 it does not hear and determine causes. It was a 
 great secretarial bureau, a home office, a foreign of- 
 fice, and a ministry of justice;" 1 Hist. Eng. Law 
 17-'. 
 
 The chancellor's Jurisdiction was an off-shoot from 
 that of the king's council. It does not appear that 
 he had any individual judicial functions otherwise 
 than as one of the council; he certainly acquired 
 power to sit alone, or had it confirmed, in 1349, but 
 this did not forthwith exclude the older practice. 
 Pollock, Expans. of C. L. 68. 
 
 But whatever the origin of the title, It is not diffi- 
 cult to apprehend the development of the janitor 
 or keeper of the gate, acting as intermediary be- 
 tween the suitor and the king or judge, into the 
 officer whose judgment was relied on in dealing 
 with the petition, and how the original scribe or 
 referendarius, exercising at first clerical functions, 
 but selected for them because it required legal 
 learning to discharge them, gradually developed 
 into the chancellor of modern conception, holding 
 the seal and representing the conscience of the 
 king. The fact that it is an evolution is clear, how- 
 ever obscure and difficult to trace are some of its 
 successive stages. 
 
 Lord Ellesmere, who is practically the first chan- 
 cellor whose decrees have come down to us, was the 
 most conspicuous representative of the period of the 
 Tudors and the first Stuarts. He did much towards 
 settling the practice and procedure of the court. He 
 successfully fought the great fight with Coke over 
 the supremacy of the chancellor's writ of injunction, 
 and during the period from Ellesmere to the Resto- 
 ration the real foundation was laid of an equitable 
 system modifying ancient common law principles 
 and practices which no longer agreed with current 
 views of justice; 15 Harv. L. Rev. 110. Instances 
 of specific relief, under what became in after times 
 the great heads of equity, may nevertheless be 
 found at a surprisingly early day. The editor of 
 the Selden Society's volume of Select Cases in Chan- 
 cery gives the following list of the earliest cases: 
 Accident, after 1398; account, 1385 ; cancellation 
 and delivery of instruments, 1337 ; charities, after 
 1393 ; discovery, 1415-17 ; dower, 1393 ; duress, 1337 ; 
 fraud, 13S6; injunctions, 1396-1403; mistake, 1417--4; 
 mortgage, 1456; partition, 1423-43; perpetuation of 
 testimony, 1486-1500; rescission of contract, 1396- 
 1403; specific performance, after 1398; trusts, after 
 1393 ; waste, 1461-67 ; wills, after 1393. 
 
 In his efforts to establish some sort of fixed prac- 
 tice, Lord Ellesmere frequently referred to prece- 
 dents, but numerous instances of his vicarious 
 charity reveal the latitude of his discretion. In the 
 Earl of Oxford's Case, 2 W. & T. 644, he expressly 
 claimed the power to legislate on individual rights. 
 The Restoration, or rather the chancellorship of 
 Lord Nottingham, marks an epoch in the history of 
 equity, of which he has been justly called the "fa- 
 ther." The interference of the chancellors had been 
 instrumental in bringing about, through legislation 
 and otherwise, a steady improvement in common 
 law practice and procedure, and the necessity for 
 further intervention, except where there was an 
 avowed divergence between the two systems, had 
 become rare. Then the abolition of the incidents of 
 feudal tenure by the Restoration Parliament intro- 
 duced a system of real property which continued 
 almost to the reign of Victoria. Controversies aris- 
 ing out of these new methods of conveyancing and 
 settlement naturally found their way into chancery, 
 where alone trusts and equities of redemption were 
 recognized and contracts specifically enforced; and 
 the contemporaneous abolition of the Court of Wards
 
 CANCELLARIUS 
 
 416 
 
 CANCELLATION 
 
 ultimately turned the guardianship of the estates 
 of infants into chancery. Moreover, the searching 
 investigations which had been made during the Com- 
 monwealth exercised a powerful influence in the 
 direction of reform in procedure. All these influ- 
 ences combined to form a new era in equity. Prior 
 to the Restoration, it could be said with entire ac- 
 curacy that the "grand reason for the interference 
 of a court of equity is the imperfection of the legal 
 remedy in consequence of the universality of legis- 
 lative provisions." But during the period from 
 Nottingham to Eldon the chancellor was chiefly oc- 
 cupied with the adjudication and administration of 
 proprietary rights. At the close of Lord Eldon's 
 service, equity was no longer a system corrective 
 of the common law ; its principles were no less uni- 
 versal than those of the common law. It could be 
 described only as that part of remedial justice 
 which was administered in chancery; its work was 
 administrative and protective, as contrasted with 
 the remedial and retributive justice of the common 
 law. See lo Harv. L. Rev. 109. 
 
 See 4 Co. Inst. 78 ; Dugdale Orig. Jur. fol. 34 ; and 
 generally Selden, Discourses; Inderwick, King's 
 Peace; 3 Steph. Com. 346; 1 Poll. & Maitl. 172; 1 
 Stubbs, Const. Hist. 381; Campbell, Lives of the 
 Lord Chancellors, vol. 1 ; Holdsw. Hist. E. L. ; Pol- 
 lock, Expans. of C. L. See Chancellor; Equity. 
 
 CANCELLATION. The act of crossing 
 out a writing. The manual operation of 
 tearing or destroying a written instrument; 
 1 Eq. Cas. Abr. 409. 
 
 The statute of frauds provides that the 
 revocation of a will by cancellation must be 
 by the "testator himself, or in his presence 
 and by his direction and consent." This pro- 
 vision is in force in many of the states; 1 
 Jarm. Wills (3d Am. ed.) *113 n. In order 
 that a revocation may be effected, it must be 
 proved to have been done according to the 
 statute; Delafield v. Parish, 25 N. Y. 79; 
 Heise v. Heise, 31 Pa. 246; Spoonemore v. 
 Cables, 66 Mo. 579; Barker v. Bell, 46 Ala. 
 216; declarations of a testator are not suffi- 
 cient; Lewis v. Lewis, 2 W. & S. (Pa.) 455; 
 Wittman v. Goodhand, 26 Md. 95; Jackson 
 v. Kniffen, 2 Johns. (N. Y.) 31, 3 Am. Dec. 
 390. 
 
 Cancelling a will, animo revocandi, is a 
 revocation ; and the destruction or oblitera- 
 tion need not be complete; 3 B. & Aid. 489; 
 Avery v. Pixley, 4 Mass. 462; Card v. Grin- 
 man, 5 Conn. 168; Burns v. Burns, 4 S. & R. 
 (Pa.) 567. It must be done animo revocandi; 
 Schoul. Wills 384; Wolf v. Bollinger, 62 111. 
 368; 'Dickey v. Malechi, 6 Mo. 177, 34 Am. 
 Dec. 130 ; and evidence is admissible to show 
 with what intention the act was done; Jack- 
 son v. Holloway, 7 Johns. (N. Y.) 394; Hatch 
 v. Hatch, 9 Mass. 307, 6 Am. Dec. 67; Bots- 
 ford v. Morehouse, 4 Conn. 550; Corliss v. 
 Corliss, 8 Vt. 373 ; Tomson v. Ward, 1 N. H. 
 9; Burns v. Burns, 4 S. & R. (Pa.) 297; Bates 
 v. Holman, 3 Hen. & M. (Va.) 502; Carroll's 
 Lessee v. Llewellin, 1 Harr. & McH. (Md.) 
 162; 4 Kent 531; Collagan v. Burns, 57 Me. 
 449; Harring v. Allen, 25 Mich. 505; Durant 
 v. Ashmore, 2 Rich. (S. C.) 184; Patterson 
 v. Hickey, 32 Ga. 156. Accidental cancella- 
 tion is not a revocation; Smock v. Smock, 
 11 N. J. Eq. 156. Where the first few lines 
 of a will were cut off, the remainder, which 
 
 was complete, was admitted to probate; L, 
 R, 2 P. & D. 206. Partial cancellation, with 
 proof of an animus revocandi, will revoke a 
 will; Bohanon v. Walcot, 1 How. (Miss.) 
 336, 29 Am. Dec. 631; and when more than 
 one-third of the items were cancelled, leav- 
 ing the remainder unintelligible and repug- 
 nant, the will was held to be revoked; (Dani- 
 mann v. Dammann (Md.) 28 Atl. 408. Where 
 the testator wrote on his will "This will is 
 invalid," held a revocation; Witter v. Mott, 2 
 Conn. 67. 
 
 Cancellation by an insane man will not 
 revoke a valid will; In re Forman's Will, 54 
 Barb. (N. Y.) 274; Ford v. Ford, 7 Humphr. 
 (Tenn.) 92. See Laughton v. Atkins, 1 Pick. 
 (Mass.) 535; Farr v. O'Neall, 1 Rich. (S. C.) 
 80. 
 
 In Louisiana it requires a written instru- 
 ment executed with formalities to revoke 
 a will, hence placing it among waste paper 
 and refusal to receive it after attention was 
 called to it, and an unsuccessful attempt to 
 make a new will, were held to be no can- 
 cellation; Succession of Hill, 47 La. Ann. 329, 
 16 South. 819. 
 
 There may be a partial obliteration, which 
 works a revocation pro tanto; Clark v. Smith, 
 34 Barb. (N. Y.) 140 ; Bigelow v. Gillott, 123 
 Mass. 102, 25 Am. Rep. 32 ; Wolf v. Bolling- 
 er, 62 111. 368; Giffin v. Brooks, 48 Ohio St 
 211, 31 N. E. 743; and a careful interlinea- 
 tion is not a cancellation ; Dixon's Appeal, 
 55 Pa. 424. A cancellation by pencil is 
 enough ; 2 D. & B. 311; 6 Hare 39; D. R. 2 P. 
 & D. 256; Estate of Tomlinson, 133 Pa. 245, 
 19 Atl. 4S2, 19 Am. St Rep. 637. Where a 
 will is found among a testator's papers, torn, 
 there is a presumption of revocation; Beau- 
 mont v. Keim, 50 Mo. 28; In re Johnson's 
 Will, 40 Conn. 587; Idley v. Bo wen, 11 Wend. 
 (N. Y.) 227. Where after a person's death a 
 will is found in an unsealed envelope which 
 had been in his possession up to the time of 
 his death and with lines drawn through his 
 signature, the presumption is that he him- 
 self drew the lines for the purpose of re- 
 voking the will ; In re Philp, 64 Hun, 635, 19 
 N. Y. Supp. 13. 
 
 Perpendicular marks across a will are not 
 "handwriting ;" In re Hopkins, 172 N. Y. 360, 
 65 N. E. 173, 65 L. R. A. 95, 92 Am. St. Rep. 
 746. 
 
 Mere cancellation of a deed does not di- 
 vest the grantee's title; Devlin, Deeds 300, 
 305; Holbrook v. Tirrell, 9 Pick. (Mass.) 108; 
 Fawcetts v. Kimmey, 33 Ala. 264; Botsford 
 v. Morehouse, 4 Conn. 550; National Union 
 Bld'g Ass'n v. Brewer, 41 111. App. 223; 
 even though done before recording; Hall v. 
 McDuff, 24 Me. 312; but it might practically 
 have that effect between the parties by es- 
 toppel; Sawyer v. Peters, 50 N. H. 143; or 
 by reason of the destruction of the only evi- 
 dence of the transaction ; Blaney v. Hanks, 
 14 la. 400; Parker v. Kane, 4 Wis. 12, 65 
 Am. Dec. 283.
 
 CANCELLATION 
 
 417 
 
 CANON LAW 
 
 On a bill in equity for the re-execution of 
 lost securities, which were held by a dece- 
 dent in his lifetime and after his death were 
 not fouud among his papers, a party alleg- 
 ing their destruction or cancellation by the 
 decedent is bound to prove the fact to the 
 satisfaction of the court. The absence of 
 the papers raises no presumption of such 
 destruction or cancellation ; nor is mere 
 proof of an intention to destroy or cancel, or 
 of the declaration of such intention, alone 
 sufficient; Gilpin v. Chandler, 2 Del. Ch. 219. 
 
 In the case of an insurance policy after 
 death, the remedy of the company for fraud, 
 etc., is at law by way of a defence to a 
 suit on the policy ; a bill in equity will not 
 lie for revocation in the absence of special 
 facts; Riggs v. Ins. Co., 129 Fed. 207, 63 C. 
 C. A. 365. 
 
 See Deed; Insurance; Will; Lost In- 
 strument; Revocation. 
 
 CANDIDATE (Lat. candidates, from can- 
 did us, white. Said to be from the custom of 
 Roman candidates to clothe themselves in a 
 white tunic). 
 
 One who offers himself, or is offered by 
 others, for an office. 
 
 One who seeks office is a candidate; it is 
 not necessary that he should have been 
 nominated for it Leonard v. Com., 112 Pa. 
 624, 4 Atl. 220. 
 
 CANON. In Ecclesiastical Law. A pre- 
 bendary, or member of a chapter. All mem- 
 bers of chapters except deans are now en- 
 titled canons, in England. 2 Steph. Com. 
 11th ed. 687, n.; 1 Bla. Com. 3S2. 
 
 CANON LAW. A body of ecclesiastical 
 law, which originated in the church of Rome, 
 relating to matters of which that church has 
 or claims jurisdiction. 
 
 A canon is a rule of doctrine or of discipline, and 
 Is the term generally applied to designate the or- 
 dinances of councils and decrees of popes. The 
 position which the canon law obtains beyond the 
 papal dominions depends on the extent to which it 
 is sanctioned or permitted by the government of 
 each country ; and hence the system of canon law 
 as it is administered in different countries va- 
 ries somewhat. 
 
 In the wording of a canon it is not enough 
 to admonish or to express disapprobation; its 
 wording must be explicitly permissive or 
 prohibitory, backed by the provision, ex- 
 pressed or admittedly understood, that its 
 infringement will be visited with punish- 
 ment. Cent Diet. 
 
 Though this system of law is of primary impor- 
 tance in Roman Catholic countries alone, it still 
 maintains great influence and transmits many of its 
 peculiar regulations down through the jurisprudence 
 of Protestant countries which were formerly Roman 
 Catholic. Thus, the canon law has been a distinct 
 branch of the profession in the ecclesiastical courts 
 of England for several centuries ; but the recent 
 modifications of the jurisdiction of those courts have 
 done much to reduce its independent importance. 
 
 The Corpus Juris Canonici is drawn from various 
 sources — the opinions of the ancient fathers of the 
 church, the decrees of councils, and the decretal 
 epistles and bulls of the holy see, together with the 
 
 Bouv.— 27 
 
 maxims of the civil law and the teachings of the 
 Scriptures. These sources were first drawn upon 
 for a regular ecclesiastical system about th'- 
 of Pope Alexander III. (1139), when one Gratian, an 
 Italian monk, animated by the discovery of Jus- 
 tinian's Pandects, collected the ecclesiastical consti- 
 tutions also into some method in three books, which 
 he entitled Concordia Discordant ium Canonum. 
 These are generally known as Za 
 They were never promulgated as a code, like the 
 preceding. 
 
 The subsequent papal decrees to the time of the 
 pontificate of Gregory IX. were collected in much 
 the same method, under the auspices of that pope, 
 about the year 1234, in five books, entitled I 
 talia Gregorii Nonii. A sixth book was added by 
 Boniface VIII., about the year 1^98, which is called 
 Scxtus Decretalium, or Liber Sextus. The Clemen- 
 tine Constitution, or decrees of Clement V., were 
 in like manner authenticated in 1313 by his succes- 
 sor, John XXII., who also publi.-hed twenty consti- 
 tutions of his own, called the extravugantes Joannis, 
 so called because they were in addition to, or beyond 
 the boundary of, the former collections, as the ad- 
 ditions to the civil law were called Novels. To 
 these have since been added some decrees of later 
 popes, down to the time of Sixtus IV., in five books, 
 called Extravagantes communes. And all these to- 
 gether — Gratian's Decrees, Gregory's Decretals, the 
 Sixth Decretals, the Clementine Constitutions, and 
 the Extravagants of John and his successors — form 
 the Corpus Juris Canonici, or body of the Roman 
 canon law; 1 Bla. Com. 82; Encyclopedic, Droit 
 Canonique, Droit Public Ecclesiastique ; Diet, de 
 Jur. Droit Canonique ; Erskine, Inst. b. 1, t. 1, s. 10. 
 
 This body of canon law was the jus commune of 
 the church in England. The English provincial 
 constitutions merely formed a supplement to it and 
 were valid only as interpreting or enforcing the pa- 
 pal decrees ; 1 Holdsw. H. E. L. 355. It forms no 
 part of the law of England, unless it has been 
 brought into use and acted on there ; 11 Q. B. 649. 
 
 See generally Encycl. Br., sub voce, Canon Law; 
 Maitland, Canon Law ; Jenks' Teutonic Law ; 1 Sel. 
 Essays on Anglo-Amer. Leg. Hist. 46. 
 
 See, in general, Ayliffe, Par. Jur. Can. Aug.; 
 Shelford, Marr. & D. 19 ; Preface to Burn, Eccl. 
 Law, Tyrwhitt ed. 22 ; Hale, Civ. L. 26 ; Bells 
 Case of a Putative Marriage, 203; Diet, du Droit 
 Canonique; Stair, Inst. b. 1, t. 1, 7 ; 1 Poll. & Maitl. 
 90 ; 2 Sel. Essays on Anglo-Amer. Leg. Hist 258. 
 See Extravagantes. 
 
 CANONRY. An ecclesiastical benefice at- 
 taching to the office of canon. Holthouse, 
 Diet. 
 
 CANT. A method of dividing property 
 held in common by two or more persons pe- 
 culiar to the civil law, and may be avoided 
 by the consent of all of those who are in- 
 terested, in the same manner that any other 
 contract or agreement may be avoided. 
 Hayes v. Cuny, 9 Mart. O. S. (La.) 89. See 
 Licitacion. 
 
 CANTERBURY, ARCHBISHOP OF. The 
 
 primate of all England; the chief ecclesias- 
 tical dignitary in the church. His custom- 
 ary privilege is to crown the kings and 
 queens of England. By 25 Hen. VI II. c. 21, 
 he had the power of granting dispensations 
 in any case not contrary to the Holy Scrip- 
 tures and the law of God where the pope 
 used formerly to grant them, which is the 
 foundation of his granting special licenses 
 to marry at any place or time, etc. Whar- 
 ton. See Church of England. 
 
 CANTRED. A hundred, a district con- 
 taining a hundred villages. Used in Wales
 
 CANTRED 
 
 418 
 
 CAPIAS 
 
 in the same sense as hundred in England, i 
 Cowell ; Termes de la Ley. 
 
 CANVASS. The act of examining the re- 
 turns of votes for a public officer. This 
 duty is usually intrusted to certain officers 
 of a state, district, or county, who constitute 
 a board of canvassers. The determination 
 of the board of canvassers of the persons 
 elected to an office is prima facie evidence 
 only of their election. A party may go be- 
 hind the canvass to the ballots, to show 
 the number of votes cast for him. The du- 
 ties of the canvassers are wholly ministe- 
 rial; People v. Ferguson, 8 Uow. (N. Y.) 102; 
 People v. Vail, 20 Wend. (N. Y.) 14; People 
 v. Van Cleve, 1 Mich. 362, 53 Am. Dec. 69; 
 People v. Kilduff, 15 111. 492, 60 Am. Dec. 
 769. A canvassing board has no power to 
 go behind the returns and inquire into the 
 legality of the votes; McQuade v. Furgason, 
 91 Mich. 438, 51 N. W. 1073; State v. Van 
 Camp, 36 Neb. 9, 91, 54 N. W. 113. In mak- 
 ing a recount they have no authority to 
 throw out the vote of a precinct or ward on 
 the ground of fraud, as their power is mere- 
 ly ministerial; May v. Board of Canvassers, 
 94 Mich. 505, 54 N. W. 377. See In re 
 Woods, 5 Misc. 575, 26 N. Y. Supp. 169; 
 Election. 
 
 CANVASSING BOARD. See Canvass. 
 
 CAPACITY. Ability, power, qualification, 
 or competency of persons, natural or artifi- 
 cial, for the performance of civil acts de- 
 pending on their state or condition as de- 
 fined or fixed by law; as, the capacity to de- 
 vise, to bequeath, to convey lands; or to 
 take and hold lands; to make a contract, 
 and the like. 2 Com. Dig. 294. 
 
 CAPAX DO LI (Lat. capable of commit- 
 ting crime). The condition of one who has 
 sufficient mind and understanding to be made 
 responsible for his actions. See 'Discretion. 
 
 CAPE. A judicial writ, now abolished, 
 touching a plea of lands and tenements. 
 The writs which bear this name are of two 
 kinds — namely, cape magnum, or grand cape, 
 and cape parvum, or petit cape. The cape 
 magnum was the writ for possession where 
 the tenant failed to appear. The petit cape 
 is so called not so much on account of the 
 smallness of the writ as of the latter ; it was 
 the shorter writ issued when the plaintiff 
 prevailed after the tenant had appeared. 
 Fleta, 1. 6, c. 55, § 40. For the difference 
 between the form and the use of these writs, 
 see 2 Wms. Saund. 45 c, d; Fleta, 1. 6, c. 55, 
 § 40. 
 
 CAPERS. Vessels of war owned by pri- 
 vate- persons, and different from ordinary pri- 
 vateers only in size, being smaller. Beawes, 
 Lex Merc. 230. 
 
 CAPIAS (Lat. that you take). A writ di- 
 recting the sheriff to take the person of the 
 defendant into custody. 
 
 It is a Judicial writ, and issued originally only to 
 enforce compliance with the summons of an original 
 
 writ or with some judgment or decree of the court. 
 It was originally issuable as a part of the original 
 process in a suit only in case of injuries committed 
 by force or with fraud, but was much extended by 
 statutes. See Arrest ; Bail. Being the first word 
 of distinctive significance in the writ, when writs 
 were framed in Latin, it came to denote the whole 
 class of writs by which a defendant's person was to 
 be arrested. It was issuable either by the court of 
 Common Pleas or King's Bench, and bore the seal of 
 the court. 
 
 See Spence, Eq. Jur. ; Bail; Breve; Ar- 
 rest; and the titles here following. 
 
 CAPIAS AD AUDIENDUM JUDICIUM. 
 A writ issued, in a case of misdemeanor, aft- 
 er the defendant has appeared and is found 
 guilty, to bring him to judgment if he is not 
 present when called. 4 Bla. Com. 368. 
 
 CAPIAS AD COMPUTANDUM. A writ 
 which issued in the action of account ren- 
 dered upon the judgment quod computet, 
 when the defendant refused to appear in 
 his proper person before the auditors and 
 enter into his account- 
 According to the ancient practice, the defendant 
 might, after arrest upon this process, be delivered 
 on mainprize, or, in default of finding mainpernors, 
 was committed to the Fleet prison, where the audi- 
 tors attended upon him to hear and receive his ac- 
 count. "Hie writ is now disused. 
 
 Consult Thesaurus Brevium 38 ; Coke, En- 
 tries 46, 47; Rastell, Entries 14 b. 15. 
 
 CAPIAS PRO FINE. A writ which is- 
 sued against a defendant who had been 
 fined and did not discharge the fine accord- 
 ing to the judgment. 
 
 The object of the writ was to arrest a defendant 
 against whom a plaintiff had obtained judgment, 
 and detain him until he paid to the king the fine for 
 the public misdemeanor, coupled with the, remedy 
 for the private injury sustained, in all cases of 
 forcible torts; 11 Coke 43; 5 Mod. 285; falsehood in 
 denying one's own deed ; Co. Litt. 131 ; 8 Coke 60 ; 
 unjustly claiming property in replevin, or con- 
 tempt by disobeying the command of the king's 
 writ, or the express prohibition of any statute ; t 
 Coke 60. It is now abolished ; 3 Bla. Com. 398. 
 
 CAPIAS AD RESPONDENDUM. A writ 
 
 commanding the officer to whom it is di- 
 rected "to take the body of the defendant 
 and keep the same to answer the plaintiff," 
 etc. 
 
 This is the writ of capias which is generally in- 
 tended by the use of the word capias, and was for- 
 merly a writ of great importance. For some ac- 
 count of its use and value, see Arrest; Bail. 
 
 According to the course of the practice 
 at common law, the writ bears teste, in the 
 name of the chief justice, or presiding judge 
 of the court, on some day in term-time, when 
 the judge is supposed to be present, not be- 
 ing Sunday, and is made returnable on a 
 regular return day. 
 
 If the writ has been served and the de- 
 fendant does not give bail, but remains in 
 custody, it is returned C. C. (cepi corpus); 
 if he have given bail, it is returned C. C. B. 
 B. {cepi corpus, bail bond); if the defend- 
 ant's appearance have been accepted, the re- 
 turn is, "C. C, and defendant's appearance 
 accepted." See 1 Archb. Pr. 67.
 
 CAPIAS AD SATISFACIENDUM 
 
 419 
 
 CAPIAT UK 1 
 
 CAPIAS AD SATISFACIENDUM. A writ 
 directed to the sheriff or coroner, command- 
 ing him to take the person therein named 
 and him safely keep so that he may have his 
 body in court on the return day of the writ, 
 to satisfy (ad satisfavi< ndum) the party who 
 has recovered Judgment against him. 
 
 It Is a writ of execution Issued after judgment, 
 and might have been issued against a plaintiff 
 against whom judgment was obtained for c< 
 well as against the defendant in a personal action. 
 As a rule at common law it lay in all cases where a 
 capias ad respondendum lay as a part of the mesne 
 process. Some classes of persons were, however, 
 exempt from arrest on mesne process who were 
 liable to it on final. It was a very common form of 
 execution, until within a few years, In many of the 
 states ; but its efficiency has been destroyed by 
 statutes facilitating the discharge of the debtor, in 
 some states, and by statutes prohibiting its issue. 
 In others, except In specified cases. See Arrest; 
 Privilege. It is commonly known by the abbrevia- 
 tion co. sa. 
 
 It is tested on a general teste day, and 
 returnable on a general return day. 
 
 It is executed by arresting the defendant 
 and keeping him in custody. He cannot be 
 discharged upon bail or by consent of the 
 sheriff. See Escape. And payment to the 
 sheriff is held in England not to be suffi- 
 cient to authorize a discharge. He might 
 be discharged by showing irregularities in 
 the writ; 3 D. P. C. 291; 4 id. 6. 
 
 The return made by the oflicer is either 
 C. C. & C. (ccpi corpus et com mitt it ur), or 
 N. E. I. (non est inventus). The effect of 
 execution by a ca. sa. is to prevent suing out 
 any other process against the lands or goods 
 of the person arrested, at common law; but 
 this is modified by statutes in the modern 
 law. See Execution. 
 
 CAPIAS UTLAGATUM. A writ directing 
 the arrest of an outlaw. 
 
 If general, it directs the sheriff to arrest 
 the outlaw and bring him before the court 
 on a general return day. 
 
 If special, it directs the sheriff, in addi- 
 tion, to take possession of the goods and 
 chattels of the outlaw, summoning a jury 
 to determine their value. 
 
 It was a part of the process subsequent to the 
 capias, and was issued to compel an appearance 
 where the defendant had absconded and a capias 
 could not be served upon him. The outlawry was 
 readily reversed upon any plausible pretext, upon 
 appearance of a party In person or by attorney, as 
 the object of the writ was then satisfied. The writ 
 Issued after an outlawry In a criminal as well as In 
 a civil case. See 3 Bla. Com. 284; 4 id. 320. 
 
 CAPIAS IN WITHERNAM. A writ direct- 
 ing the sheriff to take other goods of a dis- 
 trainor equal in value to a distress which he 
 has formerly taken and still withholds from 
 the owner beyond the reach of process. 
 
 When chattels taken by distress were decided to 
 have been wrongfully taken and were by the dis- 
 trainor eloigned, that is, carried out of the county 
 or concealed, the sheriff made such a return. There- 
 upon this writ issued, thus putting distress against 
 distress. 
 
 Goods taken in withernam are irreplevia- 
 ble till the original distress be forthcoming; 
 3 Bla. Com. 148. 
 
 CAPIATUR PRO FINE. See Capias rr.o 
 Fine. 
 
 CAPITA (Lat). Heads, and figuratively 
 entire bodies, whether of persons or animals. 
 Spelman. 
 
 An expression of frequent occurrence In laws 
 regulating the distribution of the i rsons 
 
 dying intestate. When all the p i 
 shares In the distribution are of the sa- 
 kindred to the deceased person (e. g. when all are 
 grandchildren), and claim directly from him in 
 their own right, and not through an intermediate re- 
 lation, they take per capita, that is, equal sha 
 share and share alike. But when they are of dif- 
 ferent degrees of kindred (e. g. some the c!. 
 others the grandchildren or the great-grandchil- 
 dren of the deceased), those more remote take per 
 stirpem or per stirpes, that is, they take respec- 
 tively the shares their parents (or other relation 
 standing in the same degree with them of the sur- 
 viving kindred entitled, who are In the nearest de- 
 gree of kindred to the intestate) would have taken 
 had they respectively survived the intestate. Reeve, 
 Descent, Introd. xxvil.; also, 1 Roper, Leg. 126, 130. 
 See Per Capita; Per Stirpes; Stirpes. 
 
 CAPITAL. The sum of money which a 
 merchant, banker, or trader adventures in 
 any undertaking, or which he contributes 
 to the common stock of a partnership, and 
 also the fund of a trading company. Mc- 
 Culloch. 
 
 Capital signifies the actual estate, wheth- 
 er in money or property, owned by an in- 
 dividual or corporation; People v. Com'rs 
 of Taxes, 23 X. Y. 192; it is the fund upon 
 which it transacts its business, which would 
 be liable to its creditors, and in case of in- 
 solvency pass to a receiver; International 
 Life Assur. Soc. of London v. Com'rs of 
 Taxes, 28 Barb. (N. Y.) 318; it does not in- 
 clude money borrowed temporarily; Bailey 
 v. Clark, 21 Wall. (U. S.) 284, SJ L. Ed 
 See, also, Mechanics' & Farmers' Bank v. 
 Townsend, 5 Blatchf. 315, Fed. Cas. X". 
 9,381; People v. Sup'rs, IS Wend. i\. Y.i 605, 
 
 Profits of a corporation are not appro- 
 priated to its capital because it has incurred 
 a debt nearly equal to such profits in per- 
 manent improvements: Davis v. Jackson. l">2 
 Mass. 5S, 25 N. E. 21. 23 Am. St. Re] 
 See Dividends; Income: Moneyed Capital. 
 
 As to what is moneyed capital in a fi 
 act respecting state taxation of national hank 
 stock, see Mercantile Bank v. New York, 121 
 U. S. 157, 7 Sup. Ct 826, 30 L. Ed. 895; First 
 Nat. Bank v. Chapman. 173 U. S. 214. 19 
 Sup. Ct 407, 43 L. Ed. 6<Jf>. 
 
 CAPITAL CRIME. One for which the 
 punishment of death is inflicted. 
 
 CAPITAL PORTMEN. See Ipswich, 
 Domesday of. 
 
 CAPITAL PUNISHMENT. The punish- 
 ment of death. 
 
 The subject of capital punishment has occupied 
 the attention of enlightened men for a long time, 
 particularly since the middle of the last century; 
 and none deserves to be more carefully investigated. 
 The right of punishing Its members by society is 
 admitted ; but how far this right extends, by the 
 laws of nature or of God, has been much disputed 
 by theoretical writers, although it cannot be denied
 
 CAPITAL PUNISHMENT 
 
 420 
 
 CAPITATION 
 
 that most nations, ancient and modern, have deemed 
 capital punishment to be within the scope of the 
 legitimate powers of government. Beccaria con- 
 tends with zeal that the punishment of death ought 
 not to be inflicted in time of peace, nor at other 
 times, except in cases where the laws can be main- 
 tained in no other way. Beccaria, chap. 28. 
 
 The ancient method of administering the law was 
 by retribution or the vindication of the law upon 
 the offender, and in England, as late as Geo. III., 
 there were about two hundred offences punishable 
 by death, among which were cutting down a tree, 
 robbing a rabbit warren, harboring an offender 
 against the revenue acts, stealing in a dwelling- 
 house to the amount of forty shillings, or In a shop 
 goods to the amount of five shillings, counterfeit- 
 ing the stamps that were used for the sale of per- 
 fumery, etc. Owing to the efforts of Sir Samuel 
 Romilly, and later of Sir James Mackintosh, the old 
 criminal code was succeeded by more humane leg- 
 islation, and since the statute of 1861 there are 
 but four crimes now punishable in England by 
 death, high treason, murder, piracy with violence, 
 and setting fire to the king's ships, dockyards, ar- 
 senals or stores. See, also, 2 Poll. & Maitl. 450; 
 Crimes ; Execution. It was abolished in Italy 
 in 1S90, and has recently been restored in France. 
 It has been abolished in some states. It is usually 
 by hanging; some states have adopted electrocu- 
 tion; and two states permit a choice between hang- 
 ing and shooting. 
 
 See Electrocution. 
 
 CAPITAL STOCK. The sum, divided into 
 shares, which is raised by mutual subscrip- 
 tion of the members of a corporation. It is 
 said to be the sum upon which calls may be 
 made upon the stockholders, and dividends 
 are to be paid; Barry v. Exchange Go., 1 
 Sandf. Ch. (N. Y.) 280; State, v. Fire Ass'n, 
 23 N. J. L. 195; Ang. & A. Corp. §§ 151, 556; 
 Union Bank of Tennessee v. State, 9 Yerg. 
 (Tenn.) 490; State Bank of Wisconsin v. 
 City of Milwaukee, 18 Wis. 281. The term 
 is used to indicate the amount of capital 
 which the charter provides for, and not the 
 value of the property of the corporation; 
 State v. Fire Ass'n, 23 N. J. L. 195; or the 
 original amount upon which a corporation 
 commences; State Bank v. City Council, 3 
 Rich. (S. C.) 346. See St. Louis, I. M. & S. 
 Ry. Co. v. Loftin, 30 Ark. 693 (contra, under 
 an Illinois revenue statute; Pacific Hotel Co. 
 v. Lieb, 83 111. 602) ; the entire sum agreed 
 to be contributed to the enterprise, whether 
 paid in or not ; Reid v. Mfg. Co., 40 Ga. 98, 
 2 Am. Rep. 563. 
 
 It has been held to mean the amount paid 
 In, not the amount subscribed; City of Phil- 
 adelphia v. Ry. Co., 52 Pa. 177 ; Mayeski v. 
 His Creditors, 40 La. Ann. 98, 4 South. 9; 
 contra, Hightower v. Thornton, 8 Ga. 486, 52 
 Am. Dec. 412; nor that named in the articles 
 of association; Pratt v. Munson, 17 Hun (N. 
 Y.) 475. See 1 Thomp. Corp. § 1060; Stock. 
 
 CAPITALIS JUSTIC1ARIUS. See Justi- 
 ciar. 
 
 CAPITANEUS. He who held his land or 
 title directly from the king himself. 
 
 A commander or ruler over others, either 
 in civil, military, or ecclesiastical matters. 
 
 A naval commander. This latter use be- 
 gan A. D. 1264. Spelman, Gloss. Capita- 
 neus, Admiralius. 
 
 CAPITATION (Lat. caput, head). A poll- 
 tax. An imposition yearly laid upon each 
 person. 
 
 The constitution of the United States pro- 
 vides that "no capitation or other direct tax 
 shall be laid, unless in proportion to the 
 census, or enumeration, thereinbefore direct- 
 ed to be taken." Art. 1, s. 9, n. 4. See Hyl- 
 ton v. U. S., 3 Dall. (U. S.) 171, 1 L. Ed. 556; 
 Loughborough v. Blake, 5 Wheat. (U. S.) 
 317, 5 L. Ed. 98. 
 
 CAPITE. See In Capite. 
 CAPITULA. Collections of laws and ordi- 
 nances drawn up under heads or divisions. 
 Spelman, Gloss. 
 
 The term is used in the civil and old English law, 
 and applies to the ecclesiastical law also, meaning 
 chapters or assemblies of ecclesiastical persons. 
 Du Cange. 
 
 The Royal and Imperial Capitula were the 
 edicts of the Frankish Kings and Emperors. 
 They are distinguishable from the leges and 
 probably had a less permanent effect. They 
 might, by general consent, become a part of 
 the leges — legibus addita. 
 
 CAPITULA C0R0N/E. Specific and mi- 
 nute schedules, or capitula itineris. 
 
 CAPITULA ITINERIS. Schedules of in- 
 quiry delivered to the justices in eyre before 
 setting out on their circuits, and which were 
 intended to embrace all possible crimes. 
 
 CAPITULA DE JUD/EIS. A register of 
 mortgages made to the Jews. 2 Bla. Com. 
 343 ; Crabb, Eng. Law 130. 
 
 CAPITULARY. In French Law. A collec- 
 tion of laws and ordinances orderly arranged 
 by divisions. 
 
 The term is especially applied to the collections of 
 laws made and published by the early French em- 
 perors. The execution of these capitularies was in- 
 trusted to the bishops, courts, and missi regis; and 
 many copies were made. The best edition of the 
 Capitularies is said to be that of Baluze, 1677; Co. 
 Litt. 191 a, Butler's note 77. 
 
 In Ecclesiastical Law. A collection of laws 
 and ordinances orderly arranged by divi- 
 sions. A book containing the beginning and 
 end of each Gospel which is to be read every 
 day in saying mass. Du Cange. 
 
 CAPITULATION. The treaty which deter- 
 mines the conditions under which a fortified 
 place or army in the field is abandoned to the 
 commanding officer of the opposing army. 
 
 On surrender by capitulation, all the property of 
 the inhabitants protected by the articles is con- 
 sidered by the law of nations as neutral, and not 
 subject to capture on the high seas by the bellig- 
 erent or its ally ; Miller v. The Resolution, 2 Dall. 
 (U. S.) 8, 1 L. Ed. 263. 
 
 Capitulations. The name used for treaty 
 engagements between the Turkish government 
 and the principal states of Europe by which 
 subjects of the latter, residents in the ter- 
 ritory of the former, were exempt from the 
 laws of the places where they dwelt. 1 King- 
 lake, Invasion of Crimea 116. 
 
 In Civil Law. An agreement by which the 
 prince and the people, or those who have
 
 CAPITULATION 
 
 421 
 
 CAPTION 
 
 the right of the people, regulate the manner 
 in which the government is to be administer- 
 ed. Wolffius, § 989. 
 
 CAPITULUM (Lat.). A leading division 
 of a book or writing; a chapter; a Bection. 
 Tert. Adv: Jud. 9, 19. Abbreviated, Cap. 
 
 CAPTAIN (Lat. capitaneus; from caput, 
 head). The commander of a company of 
 soldiers. 
 
 The term Is also used of officers in the municipal 
 police in a somewhat similar sense: as, captain of 
 police, captain of the watch. 
 
 The master or commander of a merchant- 
 vessel, or a vessel of war. 
 
 A subordinate officer having charge of a 
 certain part of a vessel of war. 
 
 In the United States, the commander of a mer- 
 chant-vessel is, in statutes and legal proceedings 
 and language, more generally termed master, which 
 title see. In foreign laws and languages he is fre- 
 quently styled patron. 
 
 The rank of captain in the United States navy is 
 next above that of commander ; and captains are 
 generally appointed from this rank in the order of 
 seniority. The president has the appointing power, 
 subject to the approval and consent of the senate. 
 
 CAPTATION. In French Law. The act 
 
 of one who succeeds in controlling the will 
 of another, so as to become master of it It 
 is generally taken in a bad sense. 
 
 It was formerly applied to the first stage 
 of the hypnotic or mesmeric trance. 
 
 Captation takes place by those demonstrations of 
 attachment and friendship, by those assiduous at- 
 tentions, by those services and officious little pres- 
 ents, which are usual among friends, and by all 
 those means which ordinarily render us agreeable 
 to others. When these attentions are unattended 
 by deceit or fraud, they are perfectly fair, and the 
 captation is lawful; but if, under the .mask of 
 friendship, fraud is the object, and means are used 
 to deceive the person with whom you are connected, 
 then the captation is fraudulent, and the acts pro- 
 cured by the captator are void. 
 
 CAPTION (Lat. capere, to take). A tak- 
 ing, or seizing ; an arrest. The word is no 
 longer used in this sense. 
 
 The heading of a legal instrument, in 
 which is shown when, where, and by what 
 authority it was taken, found, or executed. 
 
 In the English practice, when an inferior court, 
 in obedience to the writ of certiorari, returned an 
 indictment into the king's bench, it was annexed to 
 the caption, then called a schedule, and the caption 
 concluded with stating that "it is presented in man- 
 ner and form as appears in a certain indictment 
 thereto annexed," and the caption and indictment 
 were returned on separate parchments. 1 Wms. 
 Saund. 309, n. 2. 
 
 In some of the states, every indictment has a cap- 
 tion attached to it, and returned by the grand jury 
 as part of their presentment in each particular case: 
 and in this respect a caption differs essentially from 
 that of other tribunals, where the separate indict- 
 ments are returned without any caption, and the 
 caption is added by the clerk of the court, as a 
 general caption embracing all the indictments 
 found at the term; Com. v. Stone, 3 Gray (Mass.) 
 454; Com. v. Edwards, 4 Gray (Mass.) 5; Com. v. 
 Gee, 6 Cush. (Mass.) 174. 
 
 In Criminal Practice. The object of the 
 caption is to give a formal statement of the 
 proceedings, describe the court before which 
 the indictment is found, and the time when 
 
 and place where it was found; Hall, Int. L. 
 413; Com. v. Stone, 3 Gray (Mass. > 454; and 
 the jurors by whom it was found; Whart 
 Cr. PI. § 91. Thus particulars must be set 
 forth with reasonable certainty ; U. 
 Prentice, 6 McLean, 66, I si; 
 
 State v. Conley, 39 Me. 78; B ate, 
 
 20 Ala. 33. It must show that the venire 
 facias was returned and from whin ■<■ the 
 jury came; Whart. Cr. PL § 91. The cap- 
 tion may be amended in the court in which 
 the indictment was found; U. S. v. I 
 6 McLean (>G, Fed. Cas. No. 16,083; Com. v. 
 llines. 101 Mass. 33; Brown v. Com., 78 Pa. 
 122; even in the supreme court; State v. 
 Jones, 9 N. J. L. 357, 17 Am. Dec. 483; State 
 v. Williams, 2 McCord (S. C.) 301. It is no 
 part of the indictment ; Com. v. Stone, 3 
 Gray (Mass.) 454; State v. Wentworth, 37 
 N. H. 196; People v. Bennett, 37 N. Y. 117, 
 93 Am. Dec. 551; Noles v. State, 24 Ala. 672. 
 
 A clerical error in naming the di 
 court of Alaska in the caption of an indict- 
 ment as "the District Court of the United 
 States." etc., does not vitiate such indict- 
 ment; Jackson v. U. S., 102 Fed. 473, 42 < :. 
 C. A 452. 
 
 In Depositions. The caption should state 
 the title of the cause, the names of the par- 
 ties, and at whose instance the depositions 
 are taken; Knight v. Nichols, 34 Me 
 See Waskern v. Diamond, 1 Hemp. 701, Fed. 
 Cas. No. 17,24S; Weeks, Depositions. 
 
 For some decisions as to the forms and 
 requisites of captions, see State v. Sutton, 5 
 N. C. 281; State v. Creight, 1 Brev. (S. C.) 
 169, 2 Am. ^ec. 656; Mitchell v. State, S 
 Yerg. (Tenn.) 514; State v. Brickell, 8 N. 
 C. 354; Kirk v. State, 6 Mo. 4G9; Duncan v. 
 People, 1 Scam. (111.) 456; Beauchamp v. 
 State, 6 Blackf. (Ind.) 299; Thomas v. 
 State, 5 How. (Miss.) 20. 
 
 CAPTIVE. A prisoner of war. Such a 
 person does not by his capture lose his civil 
 rights. 
 
 CAPTOR. In International Law. A bellig- 
 erent who has taken property from an enemy 
 or from an offending belligerent. The term 
 also designates a belligerent who has cap- 
 tured the person of an enemy. 
 
 Formerly, goods taken in war were ad- 
 judged to belong to the raptor; they are 
 now considered to vest primarily in the state 
 or sovereign, and belong to the individual 
 captors only to the extent that the municipal 
 laws provide. Captors are responsible to the 
 owners of the property for all losses and 
 damages, when the capture is tortious and 
 without reasonable cause in the exercise of 
 belligerent rights. P.ut if the capture is 
 originally justifiable, the captors will not be 
 responsible, unless by subsequent misconduct 
 they become trespassers ab initio; 1 C. Rob. 
 Adm. 93, 9G. See The Flying Fish, 2 Gall. 
 374, Fed. Cas. No. 4,892; The Anne Green, 1 
 GalL 274, Fed. Cas. No. 414; Hart v. The
 
 CAPTOR 
 
 422 
 
 CAPUT 
 
 Littlejohn, 1 Pet Adm. 116, Fed. Cas. No. 
 6,153; The London Packet, 1 Mas. 14, Fed. 
 Cas. No. 8,474. 
 
 CAPTURE. In International Law. The 
 
 taking of property by one belligerent from 
 another or from an offending neutral. 
 
 Private property of the enemy is not sub- 
 ject to capture on land, but the contrary rule 
 holds at sea. When private enemy vessels 
 are seized at sea. title does not immediately 
 vest in the captor, but the vessel must be 
 brought before a prize court and legally con- 
 demned. When public enemy vessels are 
 seized, title vests immediately in the captor 
 state. Capture is deemed lawful when made 
 in accordance with the laws of war. 
 
 Private neutral property is subject to cap- 
 ture by a belligerent for the carriage of con- 
 traband ((?. v.), breach of blockade (q. v.) 
 and unneutral service (q. v.) The Declara- 
 tion of Paris (q. v.) laid down the rule that 
 enemy goods, except contraband of war, 
 should not be subject to capture under a neu- 
 tral flag, nor neutral goods under an enemy 
 flag. 
 
 It has been a subject of controversy wheth- 
 er captured neutral vessels may be destroyed 
 by a belligerent under exceptional circum- 
 stances. British practice held that neutral 
 prizes should be abandoned if they could not 
 be brought into court. Prussia followed the 
 opposite rule in the war with Japan in 1905. 
 The Declaration of London (q. v.) compro- 
 mised the question and allows destruction of 
 a neutral vessel when it is liable to condem- 
 nation upon the facts of the case and when 
 the release of the vessel would involve dan- 
 ger to the safety of the war-ship and the suc- 
 cess of the operations in which she is en- 
 gaged at the time. II Opp. 546-558. See 
 Neutrality. 
 
 CAPUT (Lat. head). 
 
 In Civil Law. Status; a person's civil con- 
 dition. 
 
 According to the Roman law, three elements con- 
 curred to form the status or caput of the citizen, 
 namely, liberty, libertas, citizenship, civitas, and 
 family, familia. 
 
 Libertas est naturalis facultas ejus quod cuique 
 facere libet, nisi si quid vi aut jure prohibetur. 
 This definition of liberty has been translated by Dr. 
 Cooper, and all the other English translators of the 
 Institutes, as follows: "Freedom, from which we 
 are denominated free, Is the natural power of act- 
 ing as we please, unless prevented by force or by 
 the law." This, although it may be a literal, is 
 certainly not a correct, translation of the text. It 
 is absurd to say that liberty consists in the power 
 of acting as we think proper, so far as not restrain- 
 ed by force; for it is evident that even the slave 
 can do what he chooses, except so far as his voli- 
 tion is controlled by the power exercised over him 
 by his master. The true meaning of the text is: 
 "Liberty (from which we are called free) is the 
 power which we derive from nature of acting as we 
 please, except so far as restrained by physical and 
 moral impossibilities." It is obvious that a person 
 is perfectly free though he cannot reach the moon 
 nor stem the current of the Mississippi ; and it is 
 equally clear that true freedom is not impaired 
 by the rule of law not to appropriate the property 
 
 of another to ourselves, or the precept of morality 
 to behave with decency and^decorum. 
 
 Civitas— the city— reminds' us of the celebrated 
 expression, "civis sum Romanus," which struck 
 awe and terror into the most barbarous nations. 
 The citizen alone enjoyed the jus Quiritium, which 
 extended to the family ties, to property, to Inherit- 
 ance, to wills, to alienations, and to engagements 
 generally. In striking contrast with the civis stood 
 the peregrinus hostis, barbarus. Familia— the fam- 
 ily — conveyed very different ideas in the early pe- 
 riod of Roman jurisprudence from what it does in 
 modern times. Besides the singular organization of 
 the Roman family, explained under the head of 
 pater familias,. the members of the family were 
 bound together by religious rites and sacrifices,— 
 sacra familia. 
 
 The loss of one of these elements produced a 
 change of the status, or civil condition ; this change 
 might be threefold; the loss of liberty carried with 
 it that of citizenship and family, and was called the 
 maxima capitis deminutio; the loss of citizenship 
 did not destroy liberty, but deprived the party of 
 his family, and was denominated media capitis de- 
 minutio; when there was a change of condition by 
 adoption or abrogation, both liberty and citizenship 
 were preserved, and this produced the minima cap- 
 itis deminutio. But the loss or change of the 
 status, whether the great, the less, or the least, was 
 followed by serious consequences: all obligations 
 merely civil were extinguished ; those purely nat- 
 ural continued to exist. Gaius says, Eas obliga- 
 tiones quce naturalem prcestationem habere intel- 
 liguntur, palam est capitis deminutione non perire, 
 quia civilis ratio naturalia jura corrumpere non 
 potest. Usufruct was extinguished by the diminu- 
 tion of the head: amittitur usufructus capitis de- 
 minutione. D. 3. 6. § 28. It also annulled the tes- 
 tament: "Testamenta jure facta infirmantur, cum 
 is qui fecerit testamentum capite deminutus sit." 
 Gaius, 2, § 143. 
 
 At Common Law. A head. 
 
 Caput comitatis (the head of the county). 
 The sheriff; the king. Spelman, Gloss. 
 
 A person; a life. The upper part of a 
 town. CowelL A castle. Spelman, Gloss. 
 
 Caput anm. The beginning of the year. 
 Cowell. 
 
 CAPUT LUPINUM (Lat). Having a 
 wolf's head. 
 
 Outlaws were anciently said to have caput lu- 
 pinum, and might be killed by any one who met 
 them, if attempting to escape; 4 Bla. Com. 320. In 
 the reign of Edward III. this power was restricted 
 to the sheriff when armed with lawful process ; and 
 this power, even, disappeared, and the process of 
 outlawry was resorted to merely as a means of 
 compelling an appearance; Co. Lift 128 b ; 4 Bla. 
 Com. 284; 1 Reeve's Hist Eng. Law 471. See Out- 
 lawry. 
 
 CAPUTAGIUM. Head-money; the pay- 
 ment of head-money. Spelman, Gloss.; 
 Cowell. 
 
 CAR TRUST ASSOCIATION. See Roll- 
 ing Stock. 
 
 CAR TRUST SECURITIES. A name used 
 commercially to indicate a class of invest- 
 ment securities based upon the conditional 
 sale or hire of railroad cars or locomotives to 
 railroad companies with a reservation of title 
 or lien in the vendor or bailor until the prop- 
 erty is paid for. See Rolling Stock. 
 
 CARAT. The weight of four grains, used 
 by jewellers in weighing precious stones. 
 Webster.
 
 CARCAN 
 
 423 
 
 CARLISLE TABLES 
 
 CARCAN. In French Law. An Instrument 
 of punishment, somewhat resembling a pil- 
 lory. It sometimes signifies the punishment 
 itself. Biret, Vocab. 
 
 CARDINAL. The title given to one of the 
 highest dignitaries of the church of Rome. 
 
 Cardinals are next to the pope in dignity: he is 
 elected by them and out of their body. There are 
 cardinal bishops, cardinal priests, and cardinal dea- 
 cons. See Fleury, Hist. Eccles. llv. xxxv. n. 17, 11. n. 
 U; Thomassin, part 11. liv. 1. c. 53, part iv. liv. 1. 
 cc. 79, 80 ; Loiseau, Traiti des Ordres, c 8, n. 31 ; 
 AndrG Droit Canon. 
 
 CARDS. Small rectangular pasteboards, 
 on which are figures of various colors, used 
 for playing certain games. The playing of 
 cards for amusement is not forbidden; nor 
 is gaming for money, at common law ; Bish. 
 Stat. Cr. § 504. 
 
 One who obtains from another a sum of 
 money by a fraudulent use of cards is guilty 
 of larceny ; State v. Donaldson, 35 Utah 90, 
 99 Pac. 447, 20 L. R. A (N. S.) 1104, 130 Am. 
 St Rep. 1041. 
 
 Cards are a gambling device; State v. 
 Herryford, 19 Mo. 377 ; State v. Lewis, 12 
 Wis. 434. 
 
 CARE. Charge or oversight; implying 
 responsibility for safety and prosperity. 
 Webst. Diet 
 
 It is used with reference to the degree 
 of care required of bailees and carriers. For 
 the utmost care, see Baltimore & O. R. Co. v. 
 Worthington, 21 Md. 275, 83 Am. Dec. 57S; 
 Brand v. R. Co., 8 Barb. (N. Y.) 308 ; extraor- 
 dinary care, Toledo, W. & W. Ry. Co. v. 
 Baddeley, 54 111. 19, 5 Am. Rep. 71; great 
 care, Brand v. R. Co., 8 Barb. (N. Y.) 3GS; 
 especial care, Chicago & N. W. Ry. Co. v. 
 Clark, 2 111. App. 110 ; proper and reasonable 
 care, Neal v. Gillett, 23 Conn. 443; South & 
 N. A. R. Co. v. Henlein, 52 Ala. GOG, 23 Am. 
 Rep. 578; due care, Heathcock v. Pennington, 
 33 N. C. 040 ; Butterfield v. R. Co., 10 Allen 
 (Mass.) 532, 87 Am. Dec. 078; ordinary care, 
 State v. Railroad, 52 N. H. 528 ; Ernst v. R. 
 Co., 35 N. Y. 9, 90 Am. Dec. 701; Smith v. 
 R. Co., 10 R. I. 22; slight care, Johnson v. 
 R. Co., 20 N. Y. 05, 75 Am. Dec. 375. See 
 Negligence. 
 
 CAR ETA (spelled, also, Carrcta and Car- 
 ecta). A cart; a cart-load. 
 
 In Magna Charta (9 Hen. III. c. 21) It Is ordained 
 that no sheriff shall take horses or carts (careta) 
 without paying the ancient livery therefor. 
 
 CARGO. The entire load of a ship or oth- 
 er vessel. Abbott, Shipp.; Pbile v. The 
 Anna, 1 Dall. (U. S.) 197, 1 L, Ed. OS; Mer- 
 lin, Rupert.; Allegre's Adm'rs v. Ins. Co., 2 
 Gill & J. (Md.) 130, 20 Am. Dec. 424. See 
 Benj. Sales §§ 5S9, 590. 
 
 This term Is usually applied to goods only, and 
 does not include human beings ; 1 Phill. Ins. 185 ; 4 
 Pick. 429. But In a more extensive and less tech- 
 nical sense It includes persons: thus, we say, A 
 cargo of emigrants. See 7 M. & G. 729, 744; Davi- 
 son v. Von Lingen, 113 U. S. 49, 5 Sup. Ct. 346, 28 
 L. Ed. 885. 
 
 CARLISLE TABLES. Life and annuity 
 tables compiled at Carlisle, England, about 
 1870. Used by actuaries and others. See 
 Life Tables. 
 
 CAR MACK ACT. An act of Congress, 
 June 29, 1900, amending the Hepburn Act 
 It supersedes all state regulations; Chicago, 
 B. & Q. R. Co. v. Miller, 226 L. S. 513, 33 Sup. 
 Ct 155, 57 L. Ed. 323. 
 
 CARNAL KNOWLEDGE. Sexual connec- 
 tion. Com. y. Squires, 97 Mass. 50; Noble v. 
 State, 22 Ohio St 541. The term is general- 
 ly, if not exclusively, applied to the act of a 
 male. 
 
 In the statutes relating to abuse or carnal 
 knowledge of a female child of tender age, 
 the word abuse includes the words carnally 
 know, and the latter term also includes the 
 former, as there could be no carnal knowl- 
 edge of such a child by a man capable of 
 committing rape, without injury; Dawkins v. 
 State, 58 Ala. 370, 29 Am. Rep. 754. 
 
 CARNALLY KNEW. A technical phrase 
 usual in an indictment to charge the defend- 
 ant with the crime of rape. 
 
 These words were considered essential; 
 Com. Dig. Indictment; 1 Ch. Cr. L. 243; 1 
 Hale, P. C. G32; but Chitty afterwards says 
 that it does not seem so clear ; 3 Ch. Cr. L. 
 S12; and the settled opinion seems to be that 
 the words "carnally knew" are included in 
 the term "rapuit" and are therefore unneces- 
 sary ; 2 Hawk. P. C. c. 25, § 50 ; 2 Stark. 
 Cr. PI. 431, n. (e) ; but it is safer not to omit 
 them; id.; 1 Ch. Cr. L. 243; 1 East, P. C. 
 44S. These authorities would apply in states 
 hi which the offence is described simply as 
 the crime of rape, but in those states where 
 the crime is designated by the words "did 
 ravish and carnally know" it would on gen- 
 eral principles of criminal pleading be safer 
 to use the words of the statute. The use of 
 the words "carnally knew" will not supply 
 the omission of the word "ravished" ; 1 Hale, 
 P. C. G28, 032; 3 Russell, Cr. (Oth ed.) 230. 
 See Noble v. State, 22 Ohio St. 545 ; Hawk- 
 ins v. State, 58 Ala. 378, 29 Am. Rep. 754 
 
 CARRIAGE. See Vehicle; Automobile. 
 
 CARRIER. One who undertakes to trans- 
 port goods from one place to another. 2 
 Pars. Contr. (Sth ed.) »163. 
 
 They are either common or private. Pri- 
 vate carriers incur the responsibility of the 
 exercise of ordinary diligence only, like other 
 bailees for hire; Story, Bailm. § 495 ; Sat tor- 
 lee v. Groat, 1 Wend. (N. Y.) 272; 
 
 v. Jackson, 2 N. C. 14; Robertson & Co. v. 
 Kennedy, 2 Dana (Ky.) 430,26 Am. Dec 466; 
 2 C. B. 877. Special carriers of goods are 
 not insurers and are only liable for injuries 
 caused by negligence; Allis v. Voigt, 90 Mich. 
 125, 51 N. W. 190. A carrier's liability at- 
 taches the moment goods are delivered to 
 him; Gregory Y. Ry. Co., 46 Mo. App. 574;
 
 CARRIER 
 
 424 
 
 CARTA MERCATORIA 
 
 Railway Co. v. Neel, 56 Ark. 279, 19 S. W. 
 963. 
 
 See Common Carriers. 
 
 CARRYING AWAY. Such a removal or 
 taking into possession of personal property 
 as is required in order to constitute the 
 crime of larceny. 
 
 The words "did take and carry away" are a 
 translation of the words cepit et asportavit,' which 
 were used in indictments when legal processes and 
 records were in the Latin language. But no single 
 word in our language expresses the meaning of as- 
 portavit. Hence the word "away," or some other 
 word, must be subjoined to the word "carry," to 
 modify its general signification and give It a special 
 and distinctive meaning. Com. v. Adams, 7 Gray 
 (Mass.) 45. 
 
 Any removal, however right, of the entire 
 article, which is not attached either to the 
 soil or to any other thing not removed, is 
 sufficient; 2 Bish. Cr. Law § 699; 1 Dearsl. 
 421; State v. Wilson, 1 N. J. L. 439, 1 Am. 
 Dec. 216. Thus, to snatch a diamond from a 
 lady's ear, which is instantly dropped among 
 the curls of her heir; 1 Leach 320; to re- 
 move sheets from a bed and carry them into 
 an adjoining room ; 1 Leach 222, n. ; to take 
 plate from a trunk, and lay it on the floor 
 with intent to carry it away; id; to remove 
 a package from one part of a wagon to an- 
 other, with a view to steal it; 1 Leach 236; 
 have respectively been holden to be felonies. 
 But nothing less than such a severance will 
 be sufficient; 2 East, PL Cr. 556; 1 Ry. & 
 M. 14; 4 Bla. Com. 231; 2 Russ. Cr. 96; 
 Clarke, Cr. L. 242, 260. 
 
 CARRYING CONCEALED WEAPONS. 
 
 See Arms. 
 
 CARS. See RAiLROAn; Interstate Com- 
 merce Commission ; Rolling Stock. 
 
 CART. A carriage for luggage or burden, 
 with two wheels, as distinguished from a 
 wagon, which has four wheels. Worcester, 
 Diet. ; Brande. The vehicle in which crim- 
 inals are taken to execution. Johnson. 
 
 The term has been held to include four- 
 wheeled vehicles, to carry out the intent of 
 a statute; Fa vers v. Glass, 22 Ala. 621, 58 
 Am. Dec. 272. 
 
 CART BOTE. An allowance to the tenant 
 of wood sufficient for carts and other instru- 
 ments of husbandry. 2 Bla. Com. 35. See 
 Bote. 
 
 CARTA. A charter, which title see. Any 
 written instrument. 
 
 In Spanish Law. A letter; a deed; a pow- 
 er of attorney. Las Partidas, pt. 3, t 18, 1. 
 30. 
 
 CARTA DE FORESTA. See Charta be 
 
 FORE.STA. 
 
 CARTA MERCATORIA. A grant (1303) to 
 certain foreign merchants, in return for cus- 
 tom duties, of freedom to deal wholesale in 
 all cities and towns of England, power to ex- 
 port their merchandise, and liberty to dwell 
 
 where they pleased, together with other 
 rights pertaining to speedy justice; 1 Holdsw. 
 Hist. E. L. 311. 
 
 CARTE BLANCHE. The signature of one 
 or more individuals on a white paper, with 
 a sufficient space left above it to write a note 
 or other writing. 
 
 In the course of business, it not unfre- 
 quently occurs that, for the sake of conven- 
 ience, signatures in blank are given with 
 authority to fill them up. These are bind- 
 ing upon the parties. But the blank must 
 be filled up by the very person authorized; 
 Musson v. Bank, 6 Mart. O. S. (La.) 707. 
 See Chit Bills 70; Frazer v. D'Invilliers, 2 
 Pa. 200, 44 Am. Dec. 190. Blank. 
 
 CARTEL. Agreements between belliger- 
 ents authorizing certain non-hostile inter- 
 course between one another which would oth- 
 erwise be prevented by the state of war; for 
 example, agreements for the exchange of 
 prisoners, for intercommunication by post, 
 telegraph, telephone, railway. II Op. 282. 
 
 Cartel ship. X ship commissioned in time 
 of war to exchange prisoners, or to carry 
 any proposals between hostile powers ; she 
 must carry no cargo, ammunition, or imple- 
 ments of war, except a single gun for signals. 
 The conduct of ships of this description can- 
 not be too narrowly watched. The service on 
 which they are sent is so highly important 
 to the interests of humanity that it is pecu- 
 liarly incumbent on all parties to take care 
 that it should be conducted in such a manner 
 as not to become a subject of jealousy and 
 distrust between the two nations ; 4 C. Rob. 
 Adm. 357. See Merlin, Repert.; Dane, Abr. 
 c. 40, a. 6, § 7; 1 Kent 68 ; 3 Phill. Int. Law 
 161; Crawford v. Penn, 1 Pet. C. C. 106, Fed. 
 Cas. No. 3,372; 3 C. Rob. Adm. 141; 6 id. 
 336 ; 1 Dods. Adm. 60. 
 
 A written challenge to a duel. 
 
 CART MEN. Persons who carry goods and 
 merchandise in carts, either for great or 
 short distances, for hire. 
 
 Cartmen who undertake . to carry goods 
 for hire as a common employment are com- 
 mon carriers; 3 C. & K. 61; Edw. Bailm. 
 500; Story, Bailm. § 496. And see Allen v. 
 Sewall, 2 Wend. (N. Y.) 327; Cohen v. 
 Hume, 1 McCord (S. C.) 444; Smyrl v. 
 Niolon, 2 Bail. (S. C.) 421, 23 Am. Dec. 146; 
 Spencer v. Daggett, 2 Vt. 92; Williams v. 
 Branson, 5 N. C. 417, 4 Am. Dec. 562; Bac. 
 Abr. Carriers, A. 
 
 CARTULARIES. Ancient English records 
 containing documents and legal proceedings 
 — the muniments of title of the great land- 
 owners, and other miscellaneous documents. 
 2 Holdsw. Hist. E. L. 273. See 1 Poll. & 
 Maitl. p. xxii. 
 
 CARUCA. A plow. A four-wheeled car- 
 riage. A team for a plow, of four oxen 
 abreast See Carucata.
 
 CAHUCAGE 
 
 425 
 
 CASE 
 
 CARUCAGE. A taxation of land by the 
 caruca. The act of plowing. 
 
 The caruca was as much land as a man could 
 cultivate In a year and a day with a single plow 
 (caruca). Carucage, carugage, or caruage was the 
 tribuate paid for each caruca by the carucarius, 
 or tenant. Spelman, Gloss. ; Cowell. 
 
 CARUCATA, CARUCATE. A certain 
 quantity of land used as the basis for taxa- 
 tion. A cartload. As much land as njay be 
 tilled by a single plow in a year and a day. 
 Skene, de verb. sig. A plow land of one hun- 
 dred acres. Ken. Gloss. The quantity varies 
 in different counties from sixty to one hun- 
 dred and twenty acres. Whart. See Little- 
 ton, Ten. cclxii. 
 
 It may include houses, meadow, woods, etc. It is 
 said by Littleton to be the same as soca, but has 
 a much more extended signification. Spelman, 
 Gloss. ; Blount ; Cowell. 
 
 Carucate was a primitive measure of land 
 in England. Caruca was a plow team. Car- 
 ucate was based upon the amount of land 
 eight oxen could cultivate in a year. As a 
 fiscal unit it was equivalent to a hide of 120 
 acres. An eighth was a bovate. 2 Holdsw. 
 Hist. E. L. 56; Maitl. Domesday Book and 
 Beyond 395. See 1 L. J. R. 96. 
 
 CASE. A question contested before a 
 court of justice. An action or suit at law 
 or in equity. Martin v. Hunter, 1 Wheat. 
 (U. S.) 352, 4 L. Ed. 97. 
 
 A case arising under a treaty, within U. 
 S. Const, art 3, § 2, is a suit in which the 
 validity or construction of a treaty of the 
 United States is drawn in question ; 2 Sto. 
 Const. § 1647; and under the judiciary act 
 of 1789, § 25, the United States supreme 
 court exercises an appellate jurisdiction in 
 such cases decided by a state court only 
 when the decision of the latter is against 
 the title, right, privilege, or exemption set 
 up or claimed by the party seeking to have 
 the decision reviewed ; Martin v. Hunter, 1 
 Wheat (U. S.) 356, 4 L. Ed. 97. The deci- 
 sion of the state court against the claimant 
 must be upon the construction of the treaty ; 
 if it rests upon other grounds it is not a case 
 arising under a treaty, and the supreme 
 court is without any jurisdiction; Gill v. 
 Oliver, 11 How. (U. S.) 529, 13 L. Ed. 799; 
 Williams v. Oliver, 12 How. (U. S.) Ill, 13 
 L. Ed. 915. 
 
 In Practice. A form of action which lies 
 to recover damages for injuries for which 
 the more ancient forms of action will not lie. 
 Steph. PI., And. ed. § 52. 
 
 Case, or, more fully, action upon the case, or tres- 
 pass on the case, includes in its widest sense as- 
 sumpsit and trover, and distinguishes a class of 
 actions in which the writ is framed according to 
 the special circumstances of the case, from the an- 
 cient actions, the writs in which, called brevia for- 
 mata, are collected in the Registrum Brcvium. 
 
 By the common law, and by the statute Westm. 
 2d, 13 Edw. I. c. 24, if any cause of action arose for 
 which no remedy had been provided, a new writ was 
 to be formed, analogous to those already in exist- 
 ence which were adapted to similar causes of ac- 
 tion. The writ of trespass was the original writ 
 
 most commonly resorted to as a precedent; and in 
 process of time the term trespass seems to have 
 been so extended as to include every species of 
 wrong causing an Injury, whether it was malfeas- 
 ance, misfeasance, or nonfeasance, apparently for 
 the purpose of enabling an action on the case to be 
 brought in the king's bench. It thus includes ac- 
 tions on the case for breach of a parol undertaking, 
 now called assumpsit (see Assumpsits and actions 
 based upon a finding and subsequent unlawful con- 
 version of property, now called trover (see Trover), 
 as well as many other actions upon the case which 
 seem to have been derived from other originals than 
 the writ of trespass, as nuisance, deceit, etc. 
 
 And, as the action had thus lost the peculiar 
 character of a technical trespass, the name was to 
 a great extent dropped, and actions of this character 
 came to be known as actions on the case. 
 
 As used at the present day, case is distinguished 
 from assumpsit and covenant, in that it is not 
 founded upon any contract, express or implied; 
 from trover, which lies only for unlawful conver- 
 sion ; from detinue and replevin, in that it lies only 
 to recover damages ; and from trespass, in that it 
 lies for injuries committed without force, or for 
 forcible injuries which damage the plaintiff conse- 
 quentially only, and in other respects. See 3 Reeves, 
 Eng. Law 84; 1 Spence, Eq. Jur. 237; 1 Chit. PI. 
 123; 3 Bla. Com. 41; Poll. Tort 645; 5 Term 648. 
 
 A similar division existed in the civil law, in 
 which upon nominate contracts an action distin- 
 guished by the name of the contract was given. 
 Upon innominate contracts, however, an action prce- 
 scriptis verbis (which lay where the obligation was 
 one already recognized as existing at law, but to 
 which no name had been given), or in factum 
 (which was founded on the equity of the particular 
 case), might be brought. 
 
 The action lies for: 
 
 Torts not committed tcith force, actual or 
 implied; Metcalf v. Alley. 24 N. C. 3S ; Law 
 v. Law, 2 Gratt (Va.) 366; Griffin v. Far- 
 well, 20 Vt 151; as, for malicious prosecu- 
 tion; Muse v.'Vidal, 6 Munf. (Va.) 27; Sha- 
 ver v. White, 6 Munf. (Va.) 113, S Am. Dec. 
 730; Warfield v. Walter, 11 Gill & J. (M.l.i 
 80; Hays v. Younglove, 7 B. Monr. (Ky.) 
 545; Seay v. Greenwood, 21 Ala. 401; Lally 
 v. Cantwell, 30 Mo. App. 524; Swift v. Cham- 
 berlain, 3 Conn. 537; 5 M. & W. 270; see 
 Malicious Prosecution ; fraud in contracts 
 of sale; Hughes v. Robertson, 1 T. B. Monr. 
 (Ky.) 215, 15 Am. Dec. 104; Ward v. Wiman, 
 17 Wend. (N. Y.) 193 ; Casco Mfg. Co. v. Dix- 
 on, 3 Cush. (Mass.) 407; Mowry v. Schroder, 
 4 Strobh. (S. C.) 69; Johnson v. McDaniel, 
 15 Ark. 109; Oliver v. Perkins, 92 Mich. 304, 
 52 N. W. 609 ; conspiracy to defame ; Wildee 
 v. McKee, 111 Pa. 335, 2 Atl. 108, 56 Am. 
 Rep. 271. 
 
 Torts committed forcibly where the matter 
 affected was not tangible; Wetmore v. Rob- 
 inson, 2 Conn. 529: Wilson v. Wilson. 2 \'t. 
 6S; as for obstructing a private way; Lam- 
 bert v. Hoke, 14 Johns. (X. Y.i 383; Wright 
 v. Freeman, 5 Harr. & J. (Mil.) 467; Cashing 
 v. Adams, 18 Pick. (Mass.) 110; Osborne v. 
 Butcher, 26 N. J. L. 308; disturbing the 
 plaintiff in the use of a pew ; 1 Chit. Pi. 43 ; 
 injury to a franchise. 
 
 Torts committed forcibly when the injury 
 is consequential merely, and not immediate; 
 Cotteral v. Cummins, 6 S. & R. (Pa.) 348; 
 Knott r. Digges, 6 Harr. & J. (Md.) 230;
 
 CASE 
 
 426 
 
 CASE 
 
 4 D. & B. 146; Hamilton v. Water Power 
 Co., 81 Mich. 21, 45 N. W. 648; as, special 
 damage from a public nuisance ; Martin v. 
 Bliss, 5 Blackf. (Ind.) 35, 32 Am. Dec. 56; 
 Garrett v. McKie, 1 Rich. (S. C.) 444, 44 
 Am. Dec. 263; Hay v. Cohoes Co., 3 Barb. 
 (N. T.) 42; Beardsley v. Swan, 4 McLean, 
 333, Fed. Cas. No. 1,187; Plumer v. Alexan- 
 der, 12 Pa. SI ; Scott v. Bay, 3 Md. 431 ; acts 
 done on the defendant's land which by im- 
 mediate consequence injure the plaintiff ; 
 Shrieve v. Stokes, 8 B. Monr. (Ky.) 453, 48 
 Am. Dec. 401; Woodward v. Aborn, 35 Me. 
 271, 58 Am. Dec. 699 ; Hay v. Cohoes Co., 2 
 N. Y. 159, 51 Am. Dec. 279; Tremain v. 
 Cohoes Co., 2 N. Y. 163, 51 Am. Dec. 284; 
 Thayer v. Brooks, 17 Ohio 4S9, 49 Am. Dec. 
 474; Nelson v. Godfrey, 12 111. 20; Whitney 
 v. Bartholomew, 21 Conn. 213. See Pruitt 
 v. Ellington, 59 Ala. 454; Fleming v. Lock- 
 wood, 36 Mont. 384, 92 Pac. 962, 14 L. R. A. 
 (N. S.) 628, 122 Am. St Rep. 375, 13 Ann. 
 Cas. 263. 
 
 Injuries to the relative rights; Vanhorn v. 
 Freeman, 6 N. J. L. 322; Haney v. Town- 
 send, 1 McCord (S. C.) 207; Ream v. Rank, 
 3 S. & R. (Pa.) 215; McGowen v. Chapen, 6 
 N. C. 61; Durden v. Barnett, 7 Ala. 169; 
 Hopson v. Boyd, 6 B. Monr. (Ky.) 296; Van 
 Vacter v. McKillip, 7 Blackf. (Ind.) 578 ; Wil- 
 bur v. Brown, 3 Den. (N. Y.) 361; enticing 
 away servants and children; 4 Litt. 25; Le- 
 gaux v. Feasor, 1 Yeates (Pa.) 5S6; Thacker 
 Coal Co. v. Burke, 59 W. Va. 253, 53 S. E. 
 161, 5 L. R. A. (N. S.) 1091, 8 Ann. Cas. 885 ; 
 seduction of a daughter or servant; Clough 
 v. Tenney, 5 Greenl. (Me.) 446; or wife; 
 Matheis v. Mazet, 164 Pa. 580, 30 Atl. 434. 
 Also for criminal conversation with spouse, 
 by husband; Bedan v. Turney, 99 Cal. 649, 
 34 Pac. 442; Browning v. Jones, 52 111. App. 
 597; Dalton v. Dregge, 99 Mich. 250, 58 N. 
 W. 57; but not by wife against another 
 woman; Kroessin v. Keller, 60 Minn. 372, 
 62 N. W. 438, 27 L. R. A. 685, 51 Am. St. 
 Rep. 533; for alienation of affection of 
 spouse, by husband; French v. Deane, 19 
 Colo. 504, 36 Pac. 609, 24 L. R. A. 387; Fra- 
 tini v. Caslani, 66 Vt. 273, 29 Atl. 252, 44 
 Am. St Rep. 843; or the wife; Railsback 
 v. Railsback, 12 Ind. App. 659, 40 N. E. 276, 
 1119; Young v. Young, 8 Wash. 81, 35 Pac. 
 592; Price v.. Price, 91 la. 693, 60 N. W. 
 202, 29 L. R. A. 150, 51 Am. St. Rep. 360; 
 Rice v. Rice, 104 Mich. 371, 62 N. W. 833. 
 See Husband; Wife. 
 
 Injuries which result from negligence; 
 Carey v. R. Co., 1 Cush. (Mass.) 475, 48 Am. 
 Dec. 616 ; Cook v. Transp. Co., 1 Den. (N. Y.) 
 91; Ellis v. R. Co., 24 N. C. 138; Clifford 
 v. Richardson, 18 Vt. 620; McCready v. R. 
 Co., 2 Strobh. (S. C.) 356 ; Freer v. Cameron, 
 4 Rich. (S. C.) 228, 55 Am. Dec. 663 ; Ferrier 
 v. Wood, 9 Ark. 85; Thomasson v. Agnew, 
 24 Miss. 93 ; Lord v. Ocean Bank, 20 Pa. 387, 
 59 Am. Dec. 728; Fleet y. Hollenkemp, 13 
 
 B. Monr. (Ky.) 219, 56 Am. Dec. 563 ; Conger 
 v. R. Co., 15 111.' 366; Kerwhaker.v. R. Co., 
 3 Obio St. 172, 62 Am. Dec. 246 ; though the 
 direct result of actual force ; 4 B. & C. 223 ; 
 Blin v. Campbell, 14 Johns. (N. Y.) 432 ; Dal- 
 ton v. Favour, 3 N. H. 465; Cole v. Fisher, 
 11 Mass. 137; Maull v. Wilson, 2 Harr. 
 (Del.) 443 ; Baldridge v. Allen, 24 N. C. 206 : 
 Claflin v. Wilcox, 18 Vt. 605; Schuer v. Vee- 
 der, 7 Blackf. (Ind.) 342 ; Brennan v. Carpen- 
 ter, 1E.I. 474. 
 
 Wrongful acts done under a legal process 
 regularly issuing from a court of competent 
 jurisdiction ; Watson v. Watson, 9 Conn. 141, 
 23 Am. Dec. 324; Hayden v. Shed, 11 Mass. 
 500; Plummer v. Dennett, 6 Greenl. (Me.) 
 421, 20 Am. Dec. 316; Lovier v. Gilpin, 6 
 Dana (Ky.) 321; Turner v. Walker, 3 Gill 
 & J. (Md.) 377, 22 Am. Dec. 329; Riley v.^ 
 Johnston, 13 Ga. 260; Robinson v. Kellum, 
 6 Cal. 399 ; Joseph v. Henderson, 95 Ala. 213, 
 10 South. 843. 
 
 Wrongful acts committed by the defend- 
 ant's servant without his order, but for 
 which he is responsible ; Powell v. Deveney, 
 3 Cush. (Mass.) 300, 50 Am. Dec. 738; 
 Broughton v. Whallon, 8 Wend. (N. Y.) 474; 
 Mayor, etc., of City of Memphis v. Lasser, 
 9 Humphr. (Tenn.) 757 ; Fleet v. Hollenkemp, 
 13 B. Monr. (Ky.) 219, 56 Am. Dec. 563; 
 Samyn v. McClosky, 2 Ohio St. 536; Illinois 
 Cent. R. Co. v. Reedy, 17 111. 580. 
 
 The infringement of rights given by stat- 
 ute; Sharp v. Curtiss, 15 Conn. 526; Riddle 
 v. Proprietors of Locks and Canals, 7 Mass. 
 169, 5 Am. Dec. 35; Savings Inst. v. Makin, 
 23 Me. 371; Hunt v. Town of Pownal, 9 Vt. 
 411; Hull v. Richmond, 2 Woodb. & M. 337, 
 Fed. Cas. No. 6,861. 
 
 Injuries committed to property of which 
 the plaintiff has the reversion only ; Ashley 
 v. Ashley, 4 Gray (Mass.) 197; Noyes V. Still- 
 man, 24 Conn. 15; Hall v. Snowhill, 14 N. J. 
 L. 8; Campbell v. Arnold, 1 Johns. (N. Y.)' 
 511; Hilliard v. Dortch, 10 N. C. 246; Wil- 
 liams v. Lanier, 44 N. C. 30 ; McGowen v. 
 Chapen, 6 N. C. 61 ; Elliot v. Smith, 2 N. H. 
 430; Ives v. Cress, 5 Pa. 118, 47 Am. Dec. 
 401; Short v. Piper, 4 Harr. (Del.) 181; 
 Kidder v. Jennison, 21 Vt. 108; Beavers v. 
 Trimmer, 25 N. J. L. 97 ; Tinsman v. R. Co., 
 25 N. J. L. 255, 64 Am. Dec. 415; Files v. 
 Magoon, 41 Me. 104; as where property is 
 in the hands of a bailee for hire; 3 East 
 593 ; Hilliard v. Dortch, 10 N. C. 246 ; Haw- 
 kins v. Phythian, 8 B. Monr. (Ky.) 515; also 
 where grantor destroys an unrecorded deed 
 placed in his hands for safekeeping by the 
 grantee; Edwards v. Dickinson, 102 N. C. 
 519, 9 S. E. 456. 
 
 As to the effect of intention, as distinguish- 
 ing case from trespass, see Bell v. Lakin, 1 
 McMull. (S. C.) 364; Schuer v. Veeder, 7 
 Blackf. (Ind.) 342; Vandenburgh v. Truax, 
 4 Den. (N. Y.) 464, 47 Am. Dec. 268 ; Schune- 
 man v. Palmer, 4 Barb. (N. Y.) 225; Kelly
 
 CASE 
 
 427 
 
 CASE CERTli 
 
 v. Lett, 35 N. C. 50; Moore v. Appleton, 2G 
 Ala. 033. In some states the distinction is 
 expressly abolished by statute; Welch v. 
 Whittemore, 25 Me. 86; Mines v. Kinnison, 
 S Blackf. (Ind.) 119; Luttrell v. Hazen, 3 
 Sneed (Tenn.) 20; Schultz v. Frank, 1 Wis. 
 352. 
 
 The declaration must not state the injury 
 to have been committed vi et armds; Gates 
 v. Miles, 3 Conn. 0-1 [yet after verdict the 
 words vi ct amis (with force and anus) may 
 be rejected as surplusage; White v. .Marshall. 
 Harp. (S. C.) 122]; and should not conclude 
 contra paeon; Com. Dig. Action on the Case 
 (C, 3). 
 
 Damages not resulting necessarily from 
 the acts complained of must be specially 
 stated; Kowand v. Bellinger, 3 Strobh. (S. 
 C.) 373; Swan v. Tappan, 5 Cush. (Mass.) 
 104; Morris v. McCamey, 9 Ga. 160; Hall 
 v. Kitson, 4 Chandl. (Wis.) 20. Evidence 
 which shows the injury to be trespass will 
 not support case ; Dillingham v. Snow, 5 
 Mass. 560; Burdick v. Worrall. 4 Barb. (N. 
 Y.) 596; Scott v. Bay, 3 Md. 431. 
 
 The pica of not guilty raises the general 
 issue; Henion v. Morton, 2 Ashin. (Pa.) 150. 
 Under this plea almost any matter may be 
 given in evidence, except the statute of lim- 
 itations ; the rule is modified in actions 
 for slander and a few other instances; 1 
 Wins. Saund. 130. 
 
 The judgment is that the plaintiff recover 
 a sum of money ascertained by a jury for 
 his damages sustained by the commission 
 of the grievances complained of in the dec- 
 laration ; Cox v. Skeen, 24 N. C. 221, 38 Am. 
 Dec. 691; Burdick v. Glasko, IS Conn. 494; 
 with costs. See Act. & Def. ch. xxxiv., as to 
 eases in which this action will lie. 
 
 "Case or controversy," as used in the ju- 
 diciary act, imply the existence of present 
 or possible adverse parties whose conten- 
 tions are submitted to the court for adjudi- 
 cation ; Muskrat v. U. S., 219 U. S. 346, 31 
 Sup. Ct 250, 55 L. Ed. 246. 
 
 Cases, in the title of an old law book, may 
 mean moot cases or questions put by the 
 author for the consideration of the reader; 
 e. ff., Stillingfleet's "Ecclesiastical Cases 
 . . . Stated and Resolved," 1G9S-1704. 
 
 CASE CERTIFIED. Where there is a dif- 
 ference Of opinion between the judges of the 
 circuit court, they may certify the question 
 to the supreme court of the United States, 
 but it must be a distinct point or proposi- 
 tion of law so clearly stated that it can be 
 answered without regard to the other is- 
 sues of law or fact in the case; Fire Ins. 
 Ass'n v. Wickham, 128 U. S. 426, 9 Sup. Ct. 
 113, 32 L. Ed. 503; U. S. v. Perrin. 131 U. 
 S. 55. 9 Sup. Ct. 681, 38 L. Ed. SS; U. S. 
 v. Reilly, 131 U. S. 5S, 9 Sup. Ct. 664, 33 
 L. Ed. 75. It must not involve the whole 
 case and must be a question of law only ; 
 Fire Ins. Ass'n v. Wickham, 12S U. S. 426, 
 
 9 Sup. Ct. 113, 32 L. El. 
 
 be certified in advance of a l --alar trial; 
 U. S. v. Perrin, 131 U. S. 
 Ed. 88. 
 
 CASE LAW. The body of law created by 
 
 judicial decisions, as distingui Q law 
 
 derived from statutory and irees. 
 See Precedents ; Stare Decisis. 
 
 CASE MADE. A statement of facts in re- 
 lation to a disputed point of law, agtf 
 by both parties and submitted to the court 
 without a preceding action. This is only 
 found in the Code states. See De Armond 
 v. Whitaker, 0!) Ala. 252, 13 South. 
 Farthing v. Carrington, 110 X. C. 315, 22 
 S. E. 9; Bradford v. Buchanan, 39 S. < 
 17 S. E. 501. 
 
 CASE STATED. A statement of all the 
 facts of a ease, with the names of the wit- 
 nesses, and a detail of the documents which 
 are to support them. A brief. 
 
 An agreement in writing, between a plain- 
 tiff and defendant, that the facts in dispute 
 between them are as therein agreed upon 
 and set forth. Diehl v. Ihrie, 3 Whart. (Pa.) 
 143. 
 
 Some process of this kind exists, it Is presumed, 
 in all the states, for the purpose of enabling par- 
 ties who agree upon the facts to dispense with a 
 formal trial to ascertain what is already known, 
 and secure a decision upon the law involved merely. 
 These agreements are called also agreed cases, 
 cases agreed on, agreed statements, etc. In chan- 
 cery, also, when a question of mere law comes up, 
 it is referred to the king's bench, or common pleas, 
 upon a case stated for the purpose ; 3 Sharsw. Bla. 
 Com. 453, n. ; 6 Term 313. 
 
 A case stated usually embodies a written 
 statement of the facts in the case consented 
 to by both parties as correct, and submitted 
 to the court by their agreement, that a deci- 
 sion may be rendered upon the court's con- 
 clusions of law on the facts stated, without 
 a trial by jury. 
 
 The facts being thus ascertained, it is 
 left for the court to decide for which party 
 is the law. As no writ of error lies on a 
 judgment rendered on a case stated ; Dane. 
 Abr. c. 137, art. 4, § 7 ; it is usual In the 
 agreement to insert a clause that the cast- 
 stated shall be considered in the nature of 
 special verdict. In that case, a writ of error 
 lies on the judgment which may be rendered 
 upon it. But a writ of error will also lie 
 on a judgment on a ease slated, when the 
 parties have agreed to it; Fuller v. Trevoir, 
 8 S. & R. (Pa.) 529; and it is usual to in- 
 clude such a provision. 
 
 There must lie a pending action, in which 
 the case is stated; Smith v. Eline, 4 D. R. 
 (Pa.) 490; it must state all the facts; and 
 cannot refer to outside documents; Hemphill 
 v. Yerkes, 132 l'a. 545, 19 Atl. 342, 19 Am. 
 St. Rep. G07; the court must decide on the 
 case stated, not on the report of a master 
 subsequently appointed ; Frailey v. Legion of 
 Honor, 132 Pa. 578, 20 Atl. 684; and cannot
 
 CASE STATED 
 
 428 
 
 CASE SYSTEM 
 
 go outside of the case stated in deciding it; 
 Northampton Co. v. Ry. Co., 148 Pa. 282, 
 23 Atl. S95 ; Mutchler v. City of Easton, 14S 
 Pa. 441, 23 Atl. 1109; Com. v. Howard, 149 
 Pa. 302, 24 Atl. 30S; if no right of appeal 
 is reserved, the decision of the court is final ; 
 Com. v. Callahan, 153 Pa. 625, 25 Atl. 1000. 
 Where a controversy is submitted to a 
 court upon a case stated, but which fails 
 to recite that it is submitted for its opinion 
 on the law and judgment, the court is with- 
 out jurisdiction to render judgment; Tyson 
 v. Bank, 77 Md. 412, 26 Atl. 520, 23 L. R. 
 A. 161. Where an agreed statement was 
 made by the parties under a mistake of 
 facts, it was a proper subject of amendment ; 
 Levy v. Sheehan, 3 Wash. St. 420, 28 Pac. 
 748. 
 
 CASE SYSTEM. A method of teaching or 
 studying the science of the law by a study 
 of the cases historically, or by the inductive 
 method. It was introduced in the Law 
 School of Harvard University in 1869-70 by 
 Christopher C. Langdell, Dane Professor of 
 Law. It is usually based upon printed col- 
 lections of selected cases arranged chrono- 
 logically under appropriate titles. The sys- 
 tem is not necessarily based upon the exclu- 
 sive use of cases, but the cases are made the 
 basis of instruction. Text-books may be 
 used for the purpose of reference and col- 
 lateral reading, and are so used by many 
 teachers under this system. It has been 
 very generally adopted in law schools. 
 
 The reasons for the adoption of this sys- 
 tem of instruction are given in a paper read 
 before the Section of Legal Education of the 
 American Bar Association in 1S94 by Pro- 
 fessor W. A. Keener, formerly of the Law 
 School of Harvard University. 
 
 "1. That law, like other applied sciences, 
 should be studied in its application, if one 
 is to acquire a working knowledge thereof. 
 2. That this is entirely feasible for the rea- 
 son that while the adjudged cases are num- 
 erous the principles controlling them are 
 comparatively few. 3. That it is by the 
 study of cases that one is to acquire the 
 power of legal reasoning, discrimination and 
 judgment, qualities indispensable to the prac- 
 tising lawyer. 4. That the study of cases 
 best develops the power to analyze and to 
 state clearly and concisely a complicated 
 state of facts, a power which, in no small 
 degree, distinguished the good from the poor 
 and indifferent lawyer. 5. That the system, 
 because of the study of fundamental prin- 
 ciples, avoids the danger of producing a 
 mere case lawyer, while it furnishes, because 
 the principles are studied in their applica- 
 tion to facts, an effectual preventive of any 
 tendency to mere academic learning. 6. That 
 the student, by the study of cases, not only 
 follows the law in its growth and develop- 
 ment, but thereby acquires the habit of legal 
 thought, which can be acquired only by the 
 
 study of cases, and which must be acquired 
 by him either as a student, or after he has 
 become a practitioner, if he is to attain any 
 success as a lawyer. 7. That it is the best 
 adapted to exciting and holding the interest 
 of the student, and is, therefore, best adapt- 
 ed to making a lasting impression upon his 
 mind. 8. That it is a method distinctly pro- 
 ductive of individuality in teaching and of 
 a scientific spirit of investigation, independ- 
 ence, and self-reliance on the part of the 
 student." Reprinted in 28 Am. L. Rev. 709. 
 See also 24 id. 211; 27 id. 801; 12 Harv. 
 L. Rev. 203, 418; 9 id. 169; 14 id. 258; 27 
 Am. L. Reg. 416; Report of Amer. Bar 
 Assoc. 1895, 1896. 
 
 CASH. That which circulates as money, 
 including bank bills, but not mere bills re> 
 ceivable. The provision of the limited part- 
 nership acts requiring "actual cash pay- 
 ment" by the special partner is not complied 
 with by the delivery to the firm of promis- 
 sory notes, which are received and treated as 
 cash; Pierce v. Bryant, 5 Allen (Mass.) 91; 
 nor of credits, Van Ingen v. Whitman, 62 
 N. Y. 513; nor of post-dated checks, Durant 
 v. Abendroth, 69 N. Y. 148, 25 Am. Rep. 158 ; 
 though regular checks of third parties, con- 
 ceded to represent cash, have been allowed; 
 Hogg v. Orgill, 34 Pa. 344. 
 
 Cash price is the price of articles paid for 
 in cash at the time of purchase, in distinc- 
 tion from the barter and credit prices. A 
 sale for cash is a sale fqr money in hand; 
 Steward v. Scudder, 24 N. J. L. 101. 
 
 CASH-BOOK. A book in which a mer- 
 chant enters an account of all the cash he 
 receives or pays. An entry of the same 
 thing ought to be made, under the proper 
 dates, in the journal. The object of the 
 cash-book is to afford a constant facility to 
 ascertain the true state of a man's cash. 
 Pardessus, n. 87. 
 
 CASH REGISTER. In a prosecution for 
 selling liquor on certain days, cash register 
 records were held inadmissible to sustain the 
 testimony of a party to the transaction that 
 liquor had not been sold ; Cullinan v. Mon- 
 crief, 90 App. Div. 538, 85 N. Y. Supp. 745. 
 They are not books of account, but memo- 
 randa made by a party in his own interest. 
 See note in 13 Yale L. J. 397. 
 
 CASHIER. An officer of a moneyed insti- 
 tution, or of a private person or firm, who is 
 entitled by his office to take care of the 
 cash or money of such institution, person, or 
 firm. 
 
 The cashier of a bank is usually intrusted 
 with all the funds of the bank, its notes, 
 bills, and other choses in action, to be used 
 from time to time for the ordinary and ex- 
 traordinary exigencies of the bank. He 
 usually receives, directly, or through subor- 
 dinate officers, all moneys and notes of the 
 bank; delivers up all discounted notes and
 
 CASHIER 
 
 429 
 
 CASIIIKll 
 
 other securities; signs drafts on correspond- 
 ing banks, and, with the president, the notes 
 payable on demand issued by tbe bank; and, 
 as an executive officer of the bank, transacts 
 much of its general business. He is the 
 chief executive officer of the bank; Morse, 
 Bank. § 152; Minor v. Bank, 1 Pet. (U. S.) 
 46, 7 L. Ed. 47; Bissell v. Bank, 69 Pa. 415. 
 He is the custodian of its money, securities, 
 books, and valuable papers ; Mason v. Moore, 
 73 Ohio St. 275, 7G N. E. 932, 4 L. R. A. (N. 
 S.) 597, 4 Ann. Cas. 240. He may borrow 
 money for the use of the bank and pledge 
 notes owned by it as security for the loan; 
 Citizens' Bank v. Bank. 126 Ky. 169, 103 
 S. W. 249, 11 L. R. A. (N. S.) 598, 128 Am. 
 St. Rep. 2S2. He may certify checks; Mer- 
 chants' Nat Bank v. Bank, 10 Wall. (U. S.) 
 604, 19 L. Ed. 1008. He will bind the bank 
 by his contract to pay commissions for the 
 disposal of its land through a broker, but 
 which, through a mistake in identity, the 
 bank does not own; Arnold v. Bank, 126 
 Wis. 362, 105 N. \V. 828, 3 L. R. A. (N. S.) 
 580. 
 
 He need not be a stockholder; indeed, 
 some bank charters prohibit him from own- 
 ing stock in the bank. He usually gives se- 
 curity for the faithful discharge of his 
 trusts. It is his duty to make reports to the 
 proper state officer (in banks incorporated 
 under the national bank act to the comp- 
 troller of the currency; U. S. R. S. § 5210) 
 of the condition of the bank, as provided 
 by law. 
 
 In general, the bank is bound by the acts 
 of the cashier within the scope of his au- 
 thority, express or implied ; Minor v. Bank, 
 1 Pet. (U. S.) 46, 70, 7 L. Ed. 47; Fleckner 
 v. Bank, 8 Wheat. (U. S.) 361, 5 L. Ed. G31 ; 
 Merchants' Nat. Bank v. Bank, 10 Wall. (U. 
 S.) 604, 19 L. Ed. 1008; Wild v. Bank, 3 
 Mas. 505, Fed. Cas. No. 17,646; Matthews v. 
 Nat. Bank, 1 Holmes 396, Fed. Cas. No. 
 9,2S6; Pendleton v. Bank, 1 T. B. Monr. 
 (Ky.) 179 ; Davenport v. Stone, 104 Mich. 521, 
 62 N. W. 722, 53 Am. St. Rep. 467. It is 
 bound by his act in drawing checks in its 
 name, though with the intent to apply the 
 proceeds to his own use; Phillips v. Bank, 
 67 Hun (N. Y.) 378, 22 N. Y. Supp. 254; 
 Lowndes v. Bank, 82 Conn. 8, 72 Atl. 150, 
 22 L. R. A. (N. S.) 408. He may endorse to 
 himself and sue on a note payable to the 
 bank; Young v. Hudson, 99 Mo. 102, 12 S. 
 W. 632. But the bank is not bound by a dec- 
 laration of the cashier not within the scope 
 of his authority ; as if, when a note is about 
 to be discounted by the bank, he tells a per- 
 son that he will incur no responsibility by 
 becoming an indorser on such note ; Bank 
 of U. S. v. Dunn, 6 Pet. (U. S.) 51, 8 L. Ed. 
 316; see West St. Louis Sav. Bank v. Bank, 
 95 U. S. 557, 24 L. Ed. 490; President, etc., 
 of Salem Bank v. Bank, 17 Mass. 1, 9 Am. 
 Dec. Ill; State Bank at Elizabeth v. Chet- 
 
 wood, 8 N. J. L. 1; Bank of Kentucky v. 
 Bank, 1 Pars. Eq. Cas. (Pa.) 240. He has no 
 authority to accept certificates of the capital 
 stock of an insurance company in payment 
 of a debt due the bank ; Bank of Commerce 
 v. Bart, :;7 Neb. 197, 55 N. *V. 631, 20 L. R 
 A. 780, 40 Am. St. Rep. 479. He may not 
 accept a new note, so as to discharge a sure- 
 ty on the first note; Gray v. Bank, 81 Md. 
 631, 32 Atl. 518. He may not give away, 
 surrender, or release the bank's secur 
 1 Dan. Neg. Inst § 305; Morse, Bunks & 
 Bankg. § 169. 
 
 Where a cashier does acts on behalf of a 
 bank which are not against public policy 
 or criminal, when once executed in whole 
 or part, they are binding on the bank, as it 
 cannot enjoy the benefits and escape the lia- 
 bilities; Owens v. Stapp, 32 111. App. 653; 
 a cashier of a bank has authority to have 
 the paper of the bank rediscounted, in tbe 
 usual course of business; Davenport v. 
 Stone, 104 Mich. 521, G2 X. W. 722, 53 Am. 
 St. Rep. 467. Merely by virtue of his office, 
 he has no implied power to receive money 
 for interest in advance on a note owned by 
 the bank, and to agree to extend the time 
 of payment, thus discharging an lndi 
 from liability ; Bank of Ravenswood v. Wet- 
 zel, 58 W. Va. 1, 50 S. E. 886, 70 L. R. A. 
 305, 6 Ann. Cas. 48; Vanderford v. Bank, 
 105 Md. 164, 66 Atl. 47, 10 L. R. A. (N. S.) 
 129 (a case under the negotiable instrument 
 law). When the cashier of a bank instituted 
 an action in the name of the bank commenc- 
 ed by capias issued on his affidavit, alleging 
 his connection with the bank, it will be pre- 
 sumed that he has authority to do so ; Wach- 
 muth v. Bank, 96 Mich. 42G. 56 X. W. 9, 
 21 L. R. A. 27S. A banking corporation, 
 whose charter does not otherwise provide, 
 may be represented by its cashier in trans- 
 actions outside of his ordinary duties, with- 
 out his authority to do so being in writing, 
 or appearing in the records of the proceed- 
 ings of the directors, and where the cashier 
 has so acted for a series of years without 
 objection, the bank is estopped to deny his 
 authority ; Martin v. Webb, 110 U. b. 7, 3 
 Sup. Ct 42S, 2S L. Ed. 49. 
 
 The mere notification by the cashier to 
 his individual creditor that he has placed 
 the amount of the debt to the latter's credit 
 on the books of the bank, followed by the 
 honoring of his check for a portion of the 
 amount, does not charge the bank with re- 
 sponsibility for the credit: Langlois v. <;r.iu r - 
 non, 123 La. 453, 49 South. IS, 22 L. R. A. 
 (N. S.) 414. 
 
 He has no authority to bind the bank by a 
 pledge of its credit to secure a discount of 
 his own notes for the benefit of a corpora- 
 tion in which he was a stockholder; State 
 Nat. Bank v. Bank, 66 Fed. 691, 14 C. C. 
 A. 61; nor has he authority to sell property 
 belonging to the bank; Greenawalt v. Wil-
 
 CASHIER 
 
 430 
 
 CASTING-VOTE 
 
 ■son, 52 Kan. 109, 34 Pac. 403; nor has he 
 power to bind the bank to pay the draft of 
 a third person on one of its customers, to be 
 drawn at a future day, when it expects 
 to have a deposit from him sufficient to cov- 
 er it; Flannagan v. Bank, 56 Fed. 959, 23 
 L. R. A. 836; nor to assign collaterals be- 
 longing to himself, which were given to se- 
 cure a loan to another person for the cash- 
 ier's benent; Merchants' Nat. Bank v. 
 Demere, 92 Ga. 735, 19 S. E. 38. 
 
 The power of a bank cashier to transfer 
 notes and securities held by the bank can 
 be questioned only by the bank or its repre- 
 sentative; Haugan v. Sunwall, 60 Minn. 367, 
 62 N. W. 398. 
 
 See National Bank; Directors; Agent. 
 
 In Military Law. To deprive a military 
 officer of his office. See Art. of War, art 14. 
 
 CASSARE. To quash; to render void; to 
 break. Du Cange. 
 
 CASSATION. In French Law. A decision 
 emanating from the sovereign authority, by 
 which a decree or judgment in the court of 
 last resort is set aside or annulled. See 
 Coub de Cassation. 
 
 CASSETUR BREVE (Lat. that the writ 
 be quashed). A judgment sometimes enter- 
 ed against a plaintiff at his request when, in 
 consequence of allegations of the defendant, 
 he can no longer prosecute his suit with ef- 
 fect. 
 
 The effect of such entry is to stop pro- 
 ceedings, and exonerate the plaintiff from 
 liability for future costs, leaving him free 
 to sue out new process; 3 Bla. Com. 303. See 
 Gould, PI. c. 5, § 139; 5 Term 634. 
 
 CAST. A term used in connection with 
 the imposition upon a party litigant of costs 
 in the suit: A is cast for the costs of the 
 case. 
 
 CASTELL0RUM 0PERATI0. In Old 
 English Law. Service or labor done by in- 
 ferior tenants for the building and uphold- 
 ing of castles and public places of defence. 
 
 Towards this some gave their personal service, 
 and others, a contribution of money or goods. This 
 was one branch of the trinoda necessitas; 1 Bla. 
 Com. 263 ; from which no lands could be exempted 
 under the Saxons; though immunity was sometimes 
 allowed after the conquest ; Kennett, Paroch. Ant. 
 114 ; Cowell. 
 
 CASTIGAT0RY. An engine used to pun- 
 ish women who have been convicted of be- 
 ing common scolds. It is sometimes called 
 the trebucket, tumbrel, ducking-stool, or 
 cucking-stool. This barbarous punishment 
 has perhaps never been inflicted in the Unit- 
 ed States; James v. Com., 12 S. & R. (Pa.) 
 225. 
 
 CASTING-VOTE. The privilege which 
 the presiding officer possesses of deciding a 
 question where the body is equally divided. 
 It sometimes signifies the single vote of a 
 pwson who never votes except in the case 
 of a tie; sometimes the double vote of a 
 
 person who first votes with the rest, and 
 then upr-n a tie creates a majority by giving 
 a second vote; Christian's note to 1 Bla. 
 Com. 18. The vice-president of the United 
 States, as president of the senate, has the 
 casting-vote when that body is equally di- 
 vided, but cannot vote at any other time; 
 Const I. 3. This is a provision frequently 
 made, though in some cases the presiding 
 officer, after giving his vote with the other 
 members, is allowed to decide the question 
 in case of a tie; People v. Church, 48 Barb. 
 (N. Y.) 603. 
 
 A casting vote neither exists in corpora- 
 tions or elsewhere, unless it is expressly giv- 
 en by statute or charter, or, what is equiva- 
 lent, exists by immemorial usage; and in 
 such cases it cannot be created by a by-law ; 
 6 T. R. 732 ; see 2 B. & Ad. 704. 
 
 See Meeting. 
 
 CASTRATION. The act of gelding. When 
 this act is maliciously performed upon a 
 man, it is a mayhem, and punishable as 
 such, although the sufferer consented to it; 
 2 Bish. Cr. Law §§ 1001, 1008. By the an- 
 cient law of England the crime was punish- 
 ed by retaliation, membrum pro membro; Co. 
 3d Inst. 118. It is punished in the United 
 States, generally, by fine and imprisonment. 
 The civil law punished it with death ; Dig. 
 74. 8. 4. 2. For the French law, vide Code 
 Penal art. 316. The consequences of castra- 
 tion, when complete, are impotence and ste- 
 rility; 1 Beck, Med. Jur. 72. 
 
 Voluntary castration after marriage is no 
 ground of divorce ; Berger v. Berger, 23 Pa. 
 Co. Ct R. 232. 
 
 CASU C0NSIMILI. See Consimiei Casu. 
 
 CASU PROVISO (Lat in the case provid- 
 ed for). A writ of entry framed under the 
 provisions of the statute of Gloucester (6 
 Edw. I.) c. 7, which lay for the benefit of the 
 reversioner when a tenant in dower aliened 
 in fee or for life. 
 
 It seems to have received this name to distinquish 
 it from a similar writ framed under the provisions 
 of the statute Westm. 2d (13 Edw. I.) c. 24, where a 
 tenant by curtesy had alienated as above, and 
 which was known emphatically as the writ in con- 
 simili casu. 
 
 The writ is now practically obsolete. 
 Fitzh. Nat. Brev. 205; Dane, Abr. Index. 
 
 CASUAL EJECTOR. The person supposed 
 to perform the fictitious ouster of the tenant 
 of the demandant in an action of ejectment 
 See Ejectment. 
 
 CASUALTY. Inevitable accident. Un- 
 foreseen circumstances not to be guarded 
 against by human agency, and in which 
 man takes no part Story, Bailm. § 240; 1 
 Pars. Contr. 543; 2 Whart Negl. 8th ed. 
 *159, 160. See 17 C. B. N. S. 51; Waldeck 
 v. Ins. Co. 56 Wis. 98, 14 N. W. 1. 
 
 CASUALTY INSURANCE. See Insub- 
 
 ANCE.
 
 CASUS FOEDERIS 
 
 431 
 
 CATCHING BARGAIN 
 
 CASUS FOEDERIS (Lat). In Internation- 
 al Law. A case within the stipulations of 
 
 a treaty of alliance. 
 
 The question whether, in case of a treaty of alli- 
 ance, a nation is bound to assist its ally in war 
 against a third nation, is determined in a great 
 measure by the justice or injustice of the war. If 
 manifestly unjust on the part of the ally, it cannot 
 be considered as casus foederis. Grotlus, b. 2, c. 25 ; 
 Vattel, b. 2, c. 12, § 1G8. 
 
 See 1 Kent 49. 
 
 In Commercial Law. The case or event 
 contemplated by the parties to a contract, 
 or stipulated for by it, or coming within its 
 terms. Black, Law Diet 
 
 CASUS FORTUITUS (Lat). An inevi- 
 table accident. A loss happening in spite of 
 all human effort and sagacity. 3 Kent 217, 
 300; Whart. NegL §§ 113, 553. 
 
 It includes such perils of the sea as strokes 
 of lightning, etc. A loss happening through 
 the agency of rats was held an unforeseen, 
 but not an inevitable, accident. Bullard v 
 
 Cas. 136; 1 P. Wins. 312; 1 Cro. Car. 7; 
 2 Atk. 133; 2 Bwanst 147; L. B. 8 Ch. Ap. 
 4S4; L. R. 10 Eq. 841. It has been said that 
 all persons dealing for a reversionary in- 
 terest are subject to this rule; but it may 
 be doubted whether the coarse at d< d 
 authorizes so extensive a < . and 
 
 whether, In order to constitute a title to re- 
 lief, the reversioner must not combine the 
 character of heir; 2 Swanst 148, n. 
 Ch. Pr. 112, 118, n.. 468, 826, B38; B 
 mere hard bargain is not sufficient - 
 for relief* 
 
 The English law on this subject was alter- 
 ed by stat. 31 and 32 Vic. c. 4. Befon 
 act slight inadequacy of consideration was 
 sufficient to Bet the contract aside; under 
 the act only positive unfairness was relieved 
 against; Bisph. Eq. § 221. Under the Mon- 
 eylenders' Act, 1900, the courts have power 
 to re-open catching bargains where the in- 
 terest is excessive and the transaction Is un- 
 
 Ins. Co., 1 Curt C. C. 14S, Fed. Cas. No. 2,- conscionable, and where the interest is ex- 
 
 122. The happening of a casus fortuitus ex- 
 cuses shipowners from liability for goods 
 conveyed; 3 Kent 216; L. R. 1 C. P. D. 143. 
 CASUS MAJOR (Lat). An unusual acci- 
 dent Story, Bailm. § 240. 
 
 CASUS OMISSUS (Lat.) 
 
 cessive and the transaction is such that a 
 court of equity would give relief; [19u»;] A. 
 O. 469; [1903] 1 K. B. 705; [1908] 1 K. B. 79, 
 where 75 per cent, was held reasonable under 
 the circumstances. This act does not include 
 pawnbrokers, registered building or loan so- 
 A case which cteties, hanking or insurance companies, etc. 
 
 Is not provided for. When such cases arise Money lenders are subjected to having their 
 
 In statutes which are intended to provide 
 for all cases of a given character which may 
 arise, the common law governs; 5 Co. 38; 
 11 East 1; Cresoe v. Laidley, 2 Binn. (Pa.) 
 279; 2 Sharsw. Bla. Com. 260; Broom, Max. 
 46. A casus omissus may occur in a contract 
 as well as in a statute ; 2 Bla. Com. 260. 
 
 CAT. A whip sometimes used for whip- 
 ping criminals. It consists of nine lashes 
 tied to a handle, and is frequently called 
 cat-o-nine-tails. It is used where the whip- 
 ping-post is retained as a mode of punish- 
 ment and was formerly resorted to in the 
 navy. 
 
 CATALLA 0TI0SA (Lat). Dead goods, 
 and animals other than beasts of the plow, 
 averia caruccc, and sheep. 3 Bla. Com. 9; 
 Bract. 217 b. 
 
 CATALLUM. A chattel. 
 
 The word is used more frequently in the plural, 
 catalla, but has then the same signification, de- 
 noting all goods, movable or immovable, except 
 such as are in the nature of fees and freeholds. 
 Cowell; Du Cange. 
 
 CATANEUS. A tenant in capita. A ten- 
 ant holding immediately of the crown. Spel- 
 man, Gloss. 
 
 CATCHING BARGAIN. An agreement 
 made with an heir expectant for the pur- 
 chase of his expectancy at an inadequate 
 price. 
 
 In such cases the heir is, in general, en- 
 titled to relief in equity, and may have the 
 contract rescinded upon terms of redemp- 
 tion; 1 Vern. 167, 320, n.; 2 Cox SO; 2 Ch. 
 
 contracts judicially varied in the interest of 
 borrowers, but the rights of bona fide as- 
 signees or holders for value without notice 
 may not be affected. Money lenders are ob- 
 liged to register. Bellot, Bargains with Mon- 
 ey-Lenders. See Chesterfield v. Janssen, 1 
 Lead. Cas. in Eq. 773, and notes. The con- 
 tract may be for a loan, sale, annuity 
 mortgage ; 16 Ves. 512 ; L. R. 10 Ch. Ap. 3S9 ; 
 26 Beav. 644; Butler v. Duncan, 47 Mich. 94, 
 10 N. W. 123, 41 Am. Rep. 711. 
 
 CATCHP0LE. A name formerly given to 
 a sheriff's deputy, or to a constable, or other 
 officer whose duty it is to arrest persons. 
 He was a sort of sergeant The word : 
 now in use as an official designation; Min- 
 shew. 
 
 CATER COUSIN. A very distant rela- 
 tion. Bla. Law Tracts 6. 
 
 CATHEDRAL. A tract set apart for the 
 service of the church. 
 
 After the establishment of Christianity, the em- 
 perors and other great men gav racta of 
 land whereon the first places of public worship were 
 erected,— which were called cathedra, catli 
 sees, or seats, from the clergy's residence thereon. 
 And when churches were afterwards built in the 
 country, and the clergy were sent out from the 
 cathedrals to officiate therein, the cathedral or head. 
 Beat remained to the bishop, with some of the chief 
 of the clergy as his assistants. 
 
 CATHOLIC EMANCIPATION ACT. The 
 act 10 Geo. IV. c. 7. This act relieves from 
 disabilities and restores all civil rights to 
 Roman Catholics, except that of holding ec- 
 clesiastical offices and certain high state of-
 
 CATHOLIC EMANCIPATION ACT 432 
 
 CAUSA 
 
 fices. The previous legislation which by 
 gradual stages led up to the final removal of 
 these disabilities is to be found in the acts 
 of 18 Geo. III. c. 60; 31 Geo. III. c. 32; 
 and 43 Geo. III. c. 7. 2 Steph. Com. 721. 
 
 CATTLE. A collective name for domestic 
 quadrupeds generally, including not only the 
 bovine tribe, but horses, asses, mules, sheep, 
 goats, and swine. Web. Diet.; Decatur Bank 
 v. Bank, 21 Wall. (U. S.) 299, 22 L. Ed. 560. 
 
 A railroad engineer cannot take chances 
 of an animal's getting off the track, where 
 he has an opportunity of avoiding all possi- 
 bility of an injury; Elmsley v. R. Co. (Miss.) 
 10 South. 41. It is immaterial whether the 
 stock was legally at large or not, where the 
 road is not fenced; Terre Haute & I. R. Co. 
 v. Schaefer, 5 Ind. App. 86, 31 N. E. 557; 
 but where not legally at large and the com- 
 pany is under no legal obligation to fence 
 its road, it will only be responsible for gross, 
 'wanton, or wilful negligence in causing in- 
 jury to stock; Windsor v. R. Co., 45 Mo. 
 App. 123. See Ohio & M. Ry. Co. v. Gross, 
 41 111. App. 561. The law does not presume 
 negligence from the mere fact that stock 
 was killed or injured by a railroad company ; 
 Eddy v. Lafayette, 49 Fed. 79S, 1 C. C. A. 
 432 ; See Animals ; Running at Large. 
 
 CATTLE GATE. A customary proportion- 
 ate right of pasture enjoyed in common with 
 others. The right is measured not by the 
 number of cattle to be pastured, but by ref- 
 erence to the rights of others and the whole 
 amount of pasture. 34 E. L. & Eq. 511; 1 
 Term 137. 
 
 CATTLE GUARDS. See Fence. 
 
 CAUCUS. See Election. 
 
 CAUSA (Lat.). A cause; a reason. 
 
 A condition; a consideration. Used of 
 contracts, and found in this sense in the 
 Scotch law also. Bell, Diet. 
 
 It cannot be considered that considera- 
 tion was borrowed from equity as a modifi- 
 cation of the Roman "causa." Prof. J. B. 
 Ames in 3 Sel. Essays in Anglo-Amer. Leg. 
 Hist. 279. Practically it covers somewhat 
 wider ground than the modern "Considera- 
 tion Executed," but it has no generic notion 
 corresponding to it, at least none coexten- 
 sive with the notion of contract; Poll. Contr. 
 74. 
 
 A suit; an action pending. Used in this 
 sense in the old English law. 
 
 Property. Used thus in the civil law in 
 the sense of res (a thing). Non porcellum, 
 non agnellum nee alia causa (not a hog, not 
 a lamb, nor other thing). Du Cange. 
 
 By reason of. 
 
 Causa proxima. The immediate cause. 
 
 Causa remota. A cause operating indirect- 
 ly by the intervention of other causes. 
 
 Causa causans. The inducing or imme- 
 diate cause. 
 
 In its general sense, causa denotes anything op- 
 erating to produce an effect. Thus, it is said, causa 
 
 causantis causa est causati (the cause of the thing 
 causing is the cause of the thing caused). Marble 
 v. City of Worcester, 4 Gray (Mass.) 398 ; 4 Campb. 
 U84. In law, however, only the direct cause is con- 
 sidered. See 9 Co. 50 ; 12 Mod. 639 ; Causa Prox- 
 ima Non Remota Spectatur; Contracts. 
 
 CAUSA JACTITATIONIS MARITAGII 
 
 (Lat). A form of action which anciently 
 lay against a party who boasted or gave 
 out that he or she was married to the plain- 
 tiff, whereby a common reputation of their 
 marriage might ensue. 3 Bla. Com. 93. See 
 Jactitation of Marriage. 
 
 CAUSA MATRIMONII PR/ELOCUTI 
 
 (Lat). A writ lying where a woman has 
 given lands to a man in fee-simple with the 
 intention that he shall marry her, and he 
 refuses so to do within a reasonable time, 
 upon suitable request. Cowell. Now obso- 
 lete. 3 Bla. Com. 183, n. 
 
 CAUSA MORTIS DONATIO. See Dona- 
 tio Mortis Causa. 
 
 CAUSA PROXIMA NON REMOTA SPEC- 
 TATUR (Lat). The direct and not the re- 
 mote cause is considered. 
 
 In many cases important questions arise 
 as to which, in the chain of acts tending to 
 the production of a given state of things, 
 is to be considered the responsible cause. 
 It is not merely distance of place or of caus- 
 ation that renders a cause remote. The 
 cause nearest in the order of causation, 
 without any efficient concurring cause to 
 produce the result, may be considered the 
 direct cause. In the course of decisions of 
 cases in which it is necessary to determine 
 which of several causes is so far respon- 
 sible for the happening of the act or injury 
 complained of, what is known as the doc- 
 trine of proximate cause is constantly re- 
 sorted to in order to ascertain whether the 
 act, omission, or negligence of the person 
 whom it is sought to hold liable was in law 
 and in fact responsible for the result which 
 is the foundation of the action. 
 
 The rule was formulated by Bacon, and 
 his comment on it is often cited : "It were 
 infinite for the law to judge the cause of 
 causes, and their impulsions one of another : 
 therefore it contenteth itself with the im- 
 mediate casse ; and judgeth of acts by that, 
 without looking to any further degree;" 
 Max. Reg. 1. Its subsequent development 
 has resulted rather in its application to new 
 conditions than in deviation from the prin- 
 ciple as originally stated. Proximate cause, 
 it may be generally stated, is such adequate 
 and efficient cause as, in the natural order 
 of events, and under the particular circum- 
 stances surrounding the case, would neces- 
 sarily produce the event; and this having 
 been discovered, is to be deemed the true 
 cause, unless some new cause not incidental 
 to, but independent of, the first, shall be 
 found to intervene between it and the first 
 Sh. & Redf. Neg. § 10; Marble v. City of
 
 CAUSA PKOXLMA 
 
 433 
 
 IMA 
 
 Worcester, 4 Gray (Mass.) 412; Story, J., In 
 Peters v. Ins. Co., 14 Pet. (U. S.) 99, 10 L. Ed. 
 371; Alexander v. Town of New Castle, 115 
 Ind. 51, 17 N. E. 200; State v. R. R, 52 X. 
 H. 528; Webb's Poll. Torts 29. It Is a cause 
 wbicb in natural sequence, undisturbed by 
 any independent c:uise, produces the result 
 complained of; Behling v. Pipe Lines, 160 
 Pa. 359, 2S Atl. 777. 40 Am. St. Rep. 71' i: 
 Milwaukee & St. P. R. Co. v. Kellogg, 94 U. 
 S. 469, 24 L. Ed. 256; Putnam v. R. Co., 55 
 N. Y. 108, 14 Am. Rep. 190 ; Taylor v. Bald- 
 win, 78 Cal. 517, 21 Pac. 124 ; and the result 
 must be the natural and probable conse- 
 quence such as ought to have been fore- 
 seen as likely to flow from the act com- 
 plained of; Ewing v. R Co., 147 Pa. 44, 23 
 Atl. 340, 14 L. R A. 666, 30 Am. St. Rep. 
 709; McDonald v. Suelliug, 14 Allen (Mass.) 
 290, 92 Am. Dec. 76S ; Pilmer v. Traction Co., 
 14 Ida. 327, 94 Pac. 432, 15 L. R. A. (N. S.) 
 254, 125 Am. St. Rep. 161; Kreigh v. West- 
 inghouse, Church. Kerr & C<£, 152 Fed. 120, 
 81 C. C. A. 338, 11 L. R. A. (N. S.) 6S4. 
 
 Two elements go to make up proximate 
 cause : 1. The act must be the efficient cause 
 of the injury ; 2. The result must be one 
 which might reasonably have been antici- 
 pated when the negligent act was commit- 
 ted; Goodlander Mill Co. v. Oil Co., 63 Fed. 
 400, 11 C. C. A. 253, 27 L. R. A. 583; Cole v. 
 Sav. & Loan Soc, 124 Fed. 113, 59 C C. A. 
 593, 03 L. R. A. 416; Kreigh v. Church, 152 
 Fe'd. 120; 81 C. C. A. 338, 11 L. R. A. (N. S.) 
 6S4; Teis v. Min. Co., 158 Fed. 260, 85 C. C. 
 A. 478, 15 L. R. A. (N. S.) S93; Hoag v. R. 
 Co., 85 Pa. 293, 27 Am. Rep. 653 ; Ilartman 
 v. Clarke, 104 App. Div. 62, 93 X. Y. Supp. 
 314; Seith v. Electric Co., 241 111. 252, 89 
 N. E. 425, 24 L. R. A. (X. S.) 978, 132 Am. 
 St. Rep. 204. 
 
 From a legal point of view it is said to be 
 of two kinds: 1. As in insurance cases; 2. 
 Responsibility for a wrongful act, whether 
 in tort or contract; 15 Ilarv. L. Rev. 566, 
 where it is said: "The fundamental differ- 
 ence between these classes is that in the 
 former investigation ceases when the near- 
 est cause adequate to produce the result in 
 question has been discovered, while in the 
 latter the object is to connect the circum- 
 stances which are the subject of the action 
 with a responsible human will." id.; see 
 Gilson v. Canal Co., 36 Am. St. Rep. 807, 
 note. 
 
 Where a train was forty-five minutes late 
 when a gust of wind threw it from the track 
 and injured a passenger, it was held that 
 though the train would have escaped the 
 gust of wind had it been on time, yet the 
 accident was neither the natural nor prob- 
 able consequence of the delay; McClary v. R. 
 Co., 3 Neb. 44, 19 Am. Rep. 631. AY hen a 
 horse hitched to a defective hitcbing-post 
 was frightened by the running away of an- 
 other horse, and broke the post and ran over 
 a person in the street, the latter could not 
 Bouv.— 28 
 
 recover against the owner of the post for 
 the defect in the post as the cause of the 
 injury; City of Rockford v. Tripp, 83 111. 
 247, 25 Am. Rep. :;• 
 
 fire to grass on tbe property < ; another may 
 be found to be the proximate cause of the 
 death of one burned whilst attempting to 
 extinguish it; Illinois Cent R Co. v. 
 229 111. 390, 82 N. E. 362, 15 L. R. A. | 
 819, 11 Ann. Cas. 36S. Exposure to cold 
 was held the proximate cause of injury to 
 the health of one who, although ill at the 
 time, would not have suffered seriously but 
 for such exposure; Louisville & X. R. Co. v. 
 tierty, 108 S. W. 336, 32 Ky. L. Rep. 
 1392, 15 L. R. A. ("X. S.) 740. The esc.-, 
 oil from a tank near a river bank was 
 the proximate cause of injury caused by the 
 oil to boats lower down: iirennan Construc- 
 tion Co. v. Cumberland, 29 App. D. G. 554, 
 15 L. R. A. (X. S.) 535, 10 Ann. Cas. 865. 
 Where a railroad company obstructed a rail- 
 road crossing and delayed a physician, held 
 that his patieni had a right of action against 
 it if she suffered by the delay; Terry v. R. 
 Co. (Miss.) 60 South. 729. Permitting a road 
 to remain out of repair so that fire appara- 
 tus is hindered in responding to an alarm 
 is not the proximate cause of the destruc- 
 tion of the property by fire; Hazel v. Owens- 
 boro, 99 S. W. 315, 30 Ky. L. Rep. 027, 9 I.. 
 R. A. (X. S.) 2! 
 
 The question of proximate cause is said 
 to be determined, not by the existence or 
 non-existence of intervening events, but by 
 their character and the natural com. 
 between the original act or omission and 
 the injurious consequences. When the in- 
 tervening cause is set in operation by the 
 original negligence, such negligence is still 
 the proximate cause ; Seith v. Electric Co.. 
 241 111. 252, 89 X. E. 425. 24 L. R. A. (X. 
 S.) 97S, 132 Am. St. Rep. 204. If the party 
 guilty of the first act of negligence might 
 have anticipated the intervening cause, the 
 connection is not broken: Seith v. Electric 
 Co., 241 111. 252, 89 X. E. 42.1. 24 L. R. A. 
 (X. S.) 978, 132 Aia. St. Rep. 204; Missouri 
 Pac. R. Co. v. Columbia, 65 Kan. .".90, 69 
 Pac. 338, 58 1.. R. A. 399; Smith v. Ti 
 113 Mo. App. 429. 87 S. W. 71 : C 
 Telephone Co. of Texas v. Thomas. 45 Tex. 
 Civ. App. 20. 99 s. W. 879. Any number Of 
 causes and effects may intervene, and if 
 they are such as might with reasonable dil- 
 igence have been foreseen, the last result is 
 to be considered as the proximate result 
 But whenever a new cause intervenes, which 
 is not a consequence of the first wrongful 
 cause, which is not under control of the 
 wrongdoer, which could not have been fore 
 seen by the exercise of reasonable diligence, 
 and except for which the final injurious con- 
 Bequence could not have happened, then such 
 injurious consequence must be deemed too 
 remote: Atchison, T. & S. F. R. Co. v. Stan- 
 ford, 12 Kan. 354, 15 Am. Rep. 302; Kreigb
 
 CAUSA PROXIMA 
 
 434 
 
 CAUSA PROXIMA 
 
 v. Westinghouse, Church, Kerr & Co., 152 
 Fed. 120, 81 C. C. A. 338, 11 L. R. A. (N. S.) 
 684. Gas was negligently permitted to re- 
 main in a mine. A workman was overcome 
 by the gas, and, in removing him to the sur- 
 face, his leg was broken in the elevator. 
 The gas-filled mine was not the proximate 
 cause of the broken leg; Teis v. Smuggler 
 Min. Co., 158 Fed. 2G0, 85 C. C. A. 478, 15 
 L. R. A. (N. S.) 80S. 
 
 The cases in which the original wrong- 
 doer is still liable, though independent acts 
 of other persons may have intervened, are 
 classified generally by Prescott F. Hall in 
 15 Harv. L. Rev. 541, as: 
 
 1. Acts directly malicious ; Laidlaw v. 
 Sage, 158 N. Y. 73, 52 N. E. 679, 44 L. R. A. 
 216 (where an explosion was held the proxi- 
 mate cause, though the person injured by it 
 was forced by another into the position of 
 danger). Taylor v. Hayes, 63 Vt. 475, 21 
 Atl. 610 ; Isham v. Dow's Estate, 70 Vt. 588, 
 41 Atl. 5S5, 45 L. R. A. 87, 67 Am. St. Rep. 
 691. One who violates a duty owed to oth- 
 ers or commits a tortious or wrongfully neg- 
 ligent act is liable, not only for those in- 
 juries which are the direct and immediate 
 consequences of his act, but for such con- 
 sequential injuries as, according to common 
 experience, are likely to, and in fact do, 
 result from his act; Smethurst v. Barton 
 Square Church, 148 Mass. 261, 19 N. E. 3S7, 
 2 L. tft. A. 695, 12 Am. St. Rep. 550 (snow 
 from a roof fell on a horse causing it to 
 start and thereby injure a passer-by). 
 
 2. Acts such as wilful misrepresentation 
 and false warranties: Of this class of cases 
 is Thomas v. Winchester, 6 N. Y. 397, 57 
 Am. Dec. 455 (where a druggist earelessly 
 labelled a deadly poison as a harmless med- 
 icine) ; where a druggist labelled extract of 
 belladonna as extract of dandelion ; Thomas 
 v. Winchester, 6 N. Y. 397, 57 Am. Dec. 455 ; 
 where naphtha was sold for oil ; Wellington 
 
 . v. Oil Co., 104 Mass. 64 ; or poisonous food ; 
 Bishop v. Weber, 139 Mass. 411, 1 N. E. 
 154, 52 Am. Rep. 715 ; or a proprietary med- 
 icine containing ingredients harmful to one 
 using it according to its directions; Blood 
 Balm Co. v. Cooper, 83 Ga. 457, 10 S. E. 
 118, 5 L. R. A. 612, 20 Am. St. Rep. 324 ; or 
 a beverage represented to be harmless, but 
 containing bits of broken glass; Watson v. 
 Brewing Co., 124 Ga. 121, 52 S. E. 152, 1 
 L. R. A. (N. S.) 1178, 110 Am. St, Rep. 157 ; 
 or where a manufacturer sold a defective 
 article knowing it to be defective, though 
 there was no privity of contract between the 
 person injured and the manufacturer ; Schu- 
 bert v. Clark Co., 49 Minn. 331, 51 N. W. 
 1103, 15 L. R. A. SIS, 32 Am. St. Rep. 559 ; 
 Woodward v. Miller, 119 Ga. 618, 46 S. E. 
 847, 64 L. R. A. 932, 100 Am. St. Rep. 188; 
 Holmvik v. Self-feeder Co., 98 Minn. 424, 108 
 N. W. 810. 
 3. Acts conclusively presumed to be mali- 
 
 cious, such as violations of statutes. Where 
 liability for personal injury is imposed by 
 statute on counties, etc., or persons for de- 
 fective highways, bridges, etc., the innocent 
 intervening act of a third person will not 
 discharge the first wrong-doer from his re- 
 sponsibility ; Hayes v. Hyde Park, 153 Mass. 
 514, 27 N. E. 522, 12 L. R. A. 249. 
 
 Generally it is held that a company main- 
 taining overhead wires is liable for injuries 
 resulting from their fall notwithstanding an 
 intervening act of a third person who at- 
 tempts to remove them. This is usually on 
 the ground that the company should have 
 foreseen that some person would interfere 
 with such wires; Citizens' Telephone Co. of 
 Texas v. Thomas, 45 Tex. Civ. App. 20, 99 
 S. W. 879 ; Neal v. R. Co., 3 Pennewill (Del.) 
 467, 53 Atl. 338; Smith v. Telephone Co., 
 113 Mo. App. 429, 87 S. W. 71; Dannen- 
 hower v. Telegraph Co., 218 Pa. 216, 67 Atl. 
 207; Kansas City v. Gilbert, 65 Kan. 469, 
 70 Pac. 350 ; but where a wire fell to the 
 ground and was knocked by a policeman 
 with his club towards the sidewalk, the in- 
 tervening act of the policeman was held the 
 proximate cause of injury to one who 
 caught the wire; Seith v. Electric Co., 241 
 111. 252, 89 N. E. 425, 24 L. R. A. (N. S.) 978, 
 132 Am. St. Rep. 204. And the negligence of 
 a telephone company in maintaining a pole 
 in a dangerous position until it fell across 
 a highway was held not the proximate cattse 
 of an accident, when it was set back in the 
 hole by passers-by and insecurely propped, 
 afterwards falling and killing the daughter 
 of the plaintiff; Harton v. Telephone Co., 
 146 N. C. 429, 59 S. E, 1022, 14 L. R. A. 
 (N. S.) 956, 14 Ann. Cas. 390. 
 
 Where a manufacturer undertook to sup- 
 ply a boiler which would stand a working 
 pressure of one hundred pounds and at a 
 less pressure the boiler exploded in conse- 
 quence of the defective construction of a 
 hinge, thereby injuring the buyer's employ- 
 ees, and rendering such buyer liable in dam- 
 ages to them, it was held that though the 
 buyer might have discovered the defect by 
 inspection, yet he was entitled to recover 
 from the manufacturer, as, even if his con- 
 duct be called want of ordinary care, it was 
 induced by the warranty or representations 
 of the manufacturer; Boston Woven Hose 
 & Rubber Co. v. Kendall, 178 Mass. 232, 59 
 S. E. 657, 51 L. R. A. 781, 86 Am. St. !Rep. 
 478. In [1895] 1 Q. B. 857, and [1895] 2 Q. 
 B. 650, it is intimated that the injured 
 workman could haVe recovered against the 
 manufacturer in the first place. In the Mas- 
 sachusetts case it is said that there are 
 difficulties in holding one liable in damages 
 when the tort of another has intervened be- 
 tween his act and the consequences com- 
 plained of, but that in some cases there may 
 be a recovery, citing Nashua Iron & Steel 
 Co. v. R. Co., 62 N. H. 159.
 
 CAUSA PROXIMA 
 
 435 
 
 CAUSA PROXIMA 
 
 The manufacturer or vendor of a tool ma- 
 chine or appliance which is not in its nature 
 intrinsically dangerous is not ordinarily 
 liable for defects therein to one not in priv- 
 ity with him; Heizer v. Mfg. Co., 110 Mo. 
 605, 19 S. W. 630, 15 L. R. A. 821, 33 Am. 
 St Rep. 482; ETeindirk v. Elevator Co., 122 
 Ky. 075, 92 S. W. 60S, 5 L. R. A. (N. S.) 
 1103 ; but a well recognized exception to 
 this rule is where the thing is eminently 
 dangerous to human life; Thomas v. Win- 
 chester, 6 N. Y. 397, 57 Am. Dec. 455; as 
 where circulars Bent out by a bottler of 
 aerated water indicated his knowledge that 
 the bottles were liable to explode, and the 
 evidence tended to show that the tests ap- 
 plied by him to the bottles sent out were not 
 adequate to justify the conclusion that they 
 would not burst under customary usage, 
 with the knowledge of which defendants 
 might reasonably be chargeable; Torgesen 
 v. Schultz. 192 N. Y. 156, S4 N. B. 956, 18 
 L. R. A. (N. S.) 726, 127 Am. St. Rep. 894. 
 
 A contractor, after the completion and de- 
 livery of possession of a building and its 
 acceptance by the owner, is not liable to a 
 stranger to the contract for injuries result- 
 ing from defects in the construction of the 
 building; Curtin v. Somerset, 140 Pa. 70, 
 21 Atl. 244, 12 L. R. A 322, 23 Am. St. .'Rep. 
 220, where the court said, quoting from 
 Whart. Neg. 439, "There must be causal 
 connection between the negligence and the 
 hurt, and such causal connection is inter- 
 rupted by the interposition between the neg- 
 ligence and the hurt of any independent 
 human agency; Miner v. McNamara, 81 
 Conn. 690, 72 Atl. 138, 21 L. R. A. (N. S.) 
 477; Fitzmaurice v. Fabian, 147 Pa. 199, 
 23 Atl. 444; Fowles v. Briggs, 116 Mich. 
 425, 74 N. W. 1046, 40 L. R. A. 528, 72 Am. 
 St. Rep. 537, where a shipper of lumber 
 negligently loaded was held not liable for 
 injury to a brakeman, after it had become 
 the duty of the railroad company to provide 
 for the inspection of the car. 
 
 The manufacturer and seller of a side 
 saddle to a husband was held to be under 
 no duty to the wife, for whose use he knows 
 it to have been purchased, for its defective 
 construction; Bragdon v. Perkins-Campbell 
 Co., 87 Fed. 109, 30 C, C. A. 567, 66 L. R. 
 A. 924. The leading case is Winterbottom 
 v. Wright, 10 M. & W. 109, where the de- 
 fendant had contracted with the postmaster- 
 general to provide a mail coach and keep 
 it in repair. He was held not liable to an 
 employee of one who contracted with the 
 postmaster-general to provide horses and 
 coachmen for the purpose of carrying the 
 mail. 
 
 Where the defendant sold gunpowder to a 
 child, and the parents took charge of it and 
 let the child have some, the sale was held 
 too remote as a cause of injury to the child 
 by an explosion ; Carter v. Towne, 103 Mass. 
 
 507 ; on the other hand an injury fri 
 railway accident, b en the direct 
 
 cause of a ulted 
 
 in paralysis, was held to be the proximate 
 cause of the latter; Bishop v.i 
 Minn. 26, 50 X. YV. 927 : bul 
 son of injury in a collision a 
 came disordered in mind and body and 
 eight months after comi . in a 
 
 suit for da ; tiie railroad com- 
 
 pany it was held that his own act wa 
 proximate cause of his death ; Scheffer v. 
 R. Co., 105 U. S. 249, ^<> L. Ed. 1070. A 
 woman's Illness by fright from 
 
 shooting a dog in her presence, is not a re- 
 sult reasonably to be anticipated; Renner v. 
 Canfield, ::': .Minn. 90, 30 N. W. 435. 1 Am. 
 St. Rep. G54. 
 
 If two causes operate at the same time 
 to produce a result which might be produced 
 by either, they are concurrent causes, and 
 in such case each is a proximate cause, but 
 if the two are successive and unrelated in 
 their operation, one of them must be proxi- 
 mate and the other remote ; Herr v. City 
 of Lebanon. 1 19 Pa. 222, 24 Atl. 207, 10 L. 
 R. A. 100, 34 Am. St. Rep. C03. When there 
 is no order of succession in time, when 
 there are two concurrent causes of a loss, 
 the predominating efficient one must be re- 
 garded as the proximate when the damage 
 done by each cannot be distinguished; How- 
 ard Fire Ins. Co. v. Transp. Co., 12 Wall. 
 (U. S.) 194, 20 L. Ed. 378 (a marine insur- 
 ance case). See the reporter's note of Mr. 
 J. C. Carter's argument for appellant. As 
 an illustration of concurrent causes, whore 
 lumber was negligently piled, and rein 
 a long time in that condition, and was caus- 
 ed to fall by the negligence of a stranger, 
 the negligence in piling concurring with the 
 negligence of the stranger, was the direct 
 and proximate cause; Pastene v. Adams. 49 
 Cal. 87. 
 
 The question as to what is the proxi- 
 mate cause of an injury is ordinarily not 
 one of science or of legal knowledge, but 
 of fact for the jury to determine in view 
 of the accompanying circumstances, all of 
 which must be submitted to the jury, who 
 must determine whether the original cause 
 is by continuous operation linked to each 
 successive fact; Lehigh Valley R. Co. v. Me- 
 Keen, 90 Pa. 122, 35 Am. Rep. 044; Milwau- 
 kee, etc., R. Co. v. Kellogg, 91 V. S. 469, 24 
 L. Ed. 250; a finding that the burn' 
 the plaintiff's mill and lumber was the un- 
 avoidable consequence of the burning of the 
 defendant's elevator, is in effect a finding 
 that there was no intervening and inde- 
 pendent cause between the negligent con- 
 duct of defendaut and injury to plaintiff ; 
 id. The doctrine under consideration finds 
 its most frequent application in fire and 
 marine insurance; L. R. 4 Q. B. 414; L. 
 R. 4 C. P. 2U(J ; L. R. 5 Ex. 204 ; .Nelson v.
 
 CAUSA PROXIMA 
 
 436 
 
 CAUSE OF ACTION 
 
 Ins. Co., 8 Cush. (Mass.) 477, 54 Am. Dec. 
 770; Paine v. Smith, 2 Duer (N. Y.) 301; 
 Mathews v. Ins. Co.. 11 N. Y. 9; Montgom- 
 ery v. Ins. Co., 16 B. Monr. (Ky.) 427 ; West- 
 ern Ins. Co. v. Cropper, 32 Pa. 351, 75 Am. 
 Dec. 561; General Mut. Ins. Co. v. Sher- 
 wood, 14 How. (U. S.) 351, 14 L. Ed. 452; in 
 cases of tort founded on negligence; 5 C. 
 & P. 190 ; L. !R. 4 C. P. 279 ; L. R. 8 Q. B. 
 274; 3 M. & R. 105; Cuff v. R. R- Co v 35 
 N. J. L. 17, 10 Am. Rep. 205 ; Fairbanks v. 
 Kerr, 70 Pa. 86, 10 Am. Rep. 664; Metallic 
 Compression Casting Co. v. R. Co., 109 Mass. 
 277, 12 Am. Rep. 689; in measure of dam- 
 ages and in highway cases; 15 Harv. L. 
 Rev. 541, which see for a thorough review of 
 the history of this doctrine; Webb's Poll. 
 Torts 29, 566 ; Howe, Civ. L. 201. 
 
 See Negligence. 
 
 CAUSA REI (Lat). In Civil Law. Things 
 accessory or appurtenant. All those things 
 which a man would have had if the thing 
 had not been withheld. Du Cange; 1 Mac- 
 keldey, Civ. Law 55. 
 
 CAUSA RE (Lat. to cause). To be engag- 
 ed in a suit ; to litigate ; to conduct a cause. 
 Used in the old English and in the civil law. 
 
 CAUSATION. See Causa Proxima. 
 
 CAUSAT0R (Lat.). A litigant; one who 
 takes the part of the plaintiff or defendant 
 in a suit. 
 
 CAUSE (Lat. causa). In Civil Law. The 
 
 consideration or motive for making a con- 
 tract. Dig. 2. 14. 7; Toullier, liv. 3, tit 3, 
 c. 2, § 4 ; 1 Abb. 28. 
 
 In Pleading. Reason; motive. 
 In a replication de injuria, for example, the plain- 
 tiff alleges that the defendant of his own wrong and 
 without the cause by him, etc., where the word 
 cause comprehends all the facts alleged as an excuse 
 or reason for doing the act. 8 Co. 67 ; 11 East 451 ; 
 1 Chit. PI. 585. 
 
 In Practice. A suit or action. Any ques- 
 tion, civil or criminal, contested before a 
 court of justice. Wood, Civ. Law 301. It 
 was held to relate to civil actions only, and 
 not to embrace quo warranto; 5 E. & B. 1. 
 See Logan v. Small, 43 Mo. 254 ; 3Q.B. 901. 
 CAUSE OF ACTION. In Practice. Mat- 
 ter for which an action may be brought. 
 
 A cause of action is said to accrue to any person 
 when that person first comes to a right to bring an 
 action. There is, however, an obvious distinction 
 between a cause of action and a right, though a 
 cause of action generally confers a right. Thus, 
 statutes of limitation do not affect the cause of 
 action, but take away the right. A cause of action 
 implies that there is some person in existence who 
 can bring suit and also a person who can lawfully 
 be sued; Douglas v. Beasley, 40 Ala. 148; Parker 
 v. Enslow, 102 111. 272, 40 Am. Rep. 588. See Parish 
 v. Ward, 28 Barb. (N. Y.) 330 ; 4 Bing. 704 ; Graham 
 v. Scripture, 26 How. Pr. (N. Y.) 501. 
 
 When a wrong has been committed, or a 
 breach of duty has occurred, the cause of 
 action has accrued, although the claimant 
 may be ignorant of it; 3 B. & Aid. 288, 626; 
 5 B. & C. 259; 4 C. & P. 127. A cause of 
 
 action does not accrue until the existence of 
 such a state of things as will enable a per- 
 son having the proper relations to the prop- 
 erty or persons concerned to bring an ac- 
 tion ; 5 B. & C. 360 ; 8 D. & tft. 346 ; 4 Bingh. 
 6S6. 
 
 "A cause of action consists of those facts' 
 as to two or more persons entitling at leasf" 
 some one of them to a judicial remedy of - 
 some sort against the other, or others, for 
 the redress or prevention of a wrong. It 
 is essential to . the existence of such facts 
 that there should be a right to be violated 
 and a violation thereof. Since those two 
 elements constitute a cause of action, and 
 to satisfy the statute [Code pleading statute 
 as to joinder of action] they must arise 
 out of one or more circumstances called a 
 transaction, the latter is to be viewed as 
 something distinct from the cause of action 
 itself, else the latter could not arise out 
 of the former." Emerson v. Nash, 124 Wis. 
 369, 102 N. W. 921, 70 L. R. A. 326, 109 Am. 
 St. Rep. 944. 
 
 Every judicial action has in it certain 
 necessary elements — a primary right belong- 
 ing to the plaintiff and a corresponding 
 primary right devolving upon the defendant ; 
 the wrong done by the defendant, which 
 consists of a breach of such primary right 
 and duty; a remedial right in plaintiff 
 and a remedial duty upon the defendant, 
 and, finally, the remedy or relief itself. Of 
 these the primary right and duty and the 
 delict or wrong constitute the cause of ac- 
 tion; Wildman v. Wildman, 70 Conn. 700, 
 41 Atl. 1. Stated in brief, a cause of action 
 may be said to consist of a right belonging 
 to the plaintiff and some wrongful act or 
 omission done by defendant by which that 
 right has been violated. Pom. Rem. § 453. 
 It comprises every fact necessary to the 
 right to the relief prayed for; McAndrews v. 
 R. Co., 162 Fed. 856, 89 C. C. A. 546. In 
 United States v. Land Co., 192 U. S. 355, 24 
 Sup. Ct. 266, 48 L. Ed. 476, it was said by 
 Holmes, J. : "The whole tendency of our 
 decisions is to require a plaintiff to try his 
 whole cause of action and his whole case 
 at one time; he cannot even split up his 
 claim (1 Salk. 11; Trask v. R. Co., 2 Allen 
 (Mass.) 331; Freem. Judge [4th Ed.] § 238, 
 241) and, a fortiori, he cannot divide the 
 grounds of recovery," 'and this language is 
 quoted in Northern Pac. R. Co. v. Slaght, 
 205 U. S. 132, 27 Sup. Ct. 446, 51 L. Ed. 742. 
 Where a party brings an action for a 
 part only of the entire indivisible demand 
 and recovers judgment, he cannot subse- 
 quently sue for another part of the same 
 demand; Baird v. U. S., 96 U. S. 432, 24 L. 
 Ed. 703. 
 
 This rule applies to the foreclosure of a 
 
 mortgage on several tracts of land; if the 
 
 mortgagee forecloses as to a portion of the 
 
 land, he waives his lien as to the rest; 
 
 I Mascarel v. Raffour, 51 Cal. 242. So of a
 
 CAUSE OF ACTION 
 
 437 
 
 CAUTIONARY JUDGMENT 
 
 vendor having a lion for the purchase mon- 
 ey on lands; if be enforces the lien as to 
 a portion of the land, he may not bring a 
 second suit; Day v. Preskctt; 40 Ala. S24. 
 And it was held in Codwise v. Taylor, 4 
 Sneed (Tenn.) .°>4G, that if he proceeded to 
 enforce his lien for a portion of the money 
 which is due, he exhausts his remedy as to 
 the rest of the land for that portion of the 
 debt afterwards maturing. 
 
 But a defendant may not split his counter- 
 claim, using part of it as a defense and then 
 sue on the other part; Palm's Adm'rs v. How- 
 ard, 102 S. W. 267, 31 Ky. Law Rep. 316; 
 id.; 102 S. W. 1199, 31 Ky. Law Rep. 814. 
 A suit on a bond and a suit on its coupons 
 are on different causes of action; Presidio 
 County v. Loud & Stock Co., 212 U. S. 58, 29 
 Sup. Ct. 237, 53 L. Ed. 402. The words 
 "arising out of the same cause of action" 
 In United States admiralty rule 53 are used 
 in a more general sense as meaning the 
 same transaction, dispute or subject matter; 
 United Transp. & Lighterage Co. v. Transp. 
 Line, 185 Fed. 3S8, 107 C. C. A. 442, follow- 
 ing Vianello v. The Credit Lyonnais, 15 Fed. 
 637. 
 
 CAUSIDICUS. A speaker or pleader. 
 See Advocate. 
 
 CAUTI0, CAUTION. In Civil Law. Se- 
 curity given for the performance of any 
 thing. A bond whereby the debtor acknowl- 
 edges the receipt of money and promises to 
 pay it at a future day. 
 
 In French Law. The person entering into 
 an obligation as a surety. 
 
 In Scotch Law. A pledge, bond, or other 
 security for the performance of an obliga- 
 tion, or completion of the satisfaction to be 
 obtained by a judicial process. Bell, Diet. 
 
 CAUTI0 FIDEJUSSORS. Security by 
 means of bonds or pledges entered into by 
 third parties. Du Cange. 
 
 CAUTI0 PIGN0RATITIA. A pledge by a 
 deposit of goods. 
 
 CAUTI0 PRO EXPEMSIS. Security for 
 costs or expenses. 
 
 This term is used among the civilians, Nov. 112, c. 
 2, and generally on the continent of Europe. In 
 nearly all the countries of Europe, a foreign plain- 
 tiff, whether resident or not, is required to give 
 caution pro expensis : that is, security for costs. 
 In some countries this rule is modified, and, when 
 such plaintiff has real estate or a commercial or 
 manufacturing establishment within the stato, he 
 is not required to give such caution. Foelix, Droit 
 Intern. Privi, n. 106. 
 
 CAUTI0 USUFRUCTUARIA. Security, 
 which tenants for life give, to preserve the 
 property rented free from waste and injury. 
 Ersk. Inst. 2. 9. 59. 
 
 CAUTION JURATORY. Security given by 
 oath. That which a suspender swears is 
 the best he can afford in order to obtain a 
 suspension. Ersk. Pr. 4. 3. 6. 
 
 CAUTIONARY BOND. See Bond. 
 
 CAUTIONARY JUDGMENT. Where an 
 action in tort was pending and the plaintiff 
 feared the defendant would dispose of his 
 real property before judgment, a cautionary 
 judgment was entered with a lien on the 
 property: Seisner v. Blake. 13 Pa. Oo. Ct R. 
 333; so in an action on a note 
 religious association, where it u 
 that the defendant was endeavoring 
 Its real estate before judgment on 
 Witmer & Dundorev. Port Treverton Church, 
 17 Pa. Co. Ct l: 
 
 CAUTIONER. A surety; a bondsman. 
 One who binds himself in a bond with the 
 principal for greater security, lie is still a 
 cautioner whether the bond be to pay a 
 debt or whether he undertake to produce 
 the person of the party for whom he is 
 bound. Bell, Diet. 
 
 CAVEAT (Lat let him beware). A notice 
 not to do an act, given to some officer, min- 
 isterial or judicial, by a party having an in- 
 terest in the matter. 
 
 It is a formal caution or warning not to do the 
 act mentioned, and is addressed frequently to pre- 
 vent the admission of wills to probate, the granting 
 letters of administration, etc. See Wms. Ex. 581. 
 
 1 Burn, Eccl. Law 19, 20.3; Nelson. Abr. ; 
 Dane, Abr.; Ayliffe, Parerg.; 3 Bla. 
 246; 2 Chit Pr. 502, note 6; 3 Redf. Wills 
 119; 4 Brew. Pr. 3974; Poph. 133; 1 Sid. 371; 
 In re Road, 8 N. J. L. 139. See Will. 
 
 Filing a caveat to the probate of a will 
 does not of itself constitute a "contest" of a 
 will; In re McCahan's Estate, 221 Pa. 188, 
 70 Atl. 711. 
 
 In Patent Law. A legal notice to the pat- 
 ent office that the caveator claims to be the 
 inventor of a particular device, in order to 
 prevent the issue of a patent on it to any 
 other person without notice to the caveator. 
 It gives no advantage to the caveator over 
 any rival claimant, but only secures to him 
 an opportunity to establish his priority of in- 
 vention. 
 
 It is filed in the patent office under statu- 
 tory regulations; U. S. R. S. § 41)02. The 
 principal object of filing it is to obtain for 
 an inventor time to perfect his Invention 
 without the risk of having a patent granted 
 to another person for the same thing. The 
 practice was abolished by act of June 10, 
 1910. 
 
 It Is also used to prevent the issue of land 
 patents: Harper v. Baugh, (Jratt. iVa.i 
 508; and where surveys are returned to 
 the land office, and marked "in dispute," this 
 entry has the effect of a caveat against their 
 acceptance: Hughes v. Stevens. 4." Pa. 107. 
 
 CAVEAT EMPTOR (Lat. let the purchas- 
 er take care). In every sale of real proper- 
 ty, a purchaser's right to relief at law or in 
 equity on account of defe its or Incumbrances 
 
 in or upon the property sold depends solely 
 upon the covenants for title which he has 
 received; 2 Sugd. Vend. 423; Co. Litt 3S4 a.
 
 CAVEAT EMPTOR 
 
 438 
 
 CAVEAT EMPTOR 
 
 Butl. note; 3 Swanst. 651; Hodges v. Saun- 
 ders, 17 Pick. (Mass.) 475; Redwiue v. Brown, 
 10 Ga. 311; Dorsey v. Jacknian, 1 S. & R. 
 (Pa.) 52, 7 Am. Dec. 611; unless there be 
 fraud on the part of the vendor ; 3 B. & P. 
 162; Abbott v. Allen, 2 Johns. Cli. (N. Y.) 
 519, 7 Am. Dec. 554 ; Miles v. Williamson, 24 
 Pa. 142 ; Etheridge v. Vernoy, 70 N. C. 713 ; 
 Tuck v. Downing, 76 111. 71; Beale v. Seive- 
 ley, 8 Leigh (Va.) 658; Sutton v. Sutton, 7 
 Gratt. (Va.) 238, 56 Am. Dec. 109; Butler v. 
 Miller, 15 B. Monr. (Ky.) 627 ; Allen v. Hop- 
 son, Freem. Ch. (Miss.) 276; Nance v. El- 
 liott, 3S N. C. 408; Maney v. Porter, 3 
 Humphr. (Tenn.) 347; Brandt v. Foster, 5 
 la. 293; Rice v. Burnet, 39 Tex. 177; and 
 consult Rawle, Cov. for Title, 5th ed. § 319. 
 This doctrine applies to a sale made under a 
 decree foreclosing a mortgage, and the pur- 
 chaser cannot rely upon statements made by 
 the officer conducting the sales ; Norton v. 
 Loan & Trust Co., 35 Neb. 466, 53 N. W. 481, 
 18 L. R. A. 88, 37 Am. St. Rep. 441. 
 
 In sales of personal property substantially 
 the same rule applies, and is thus stated in 
 Story, Sales, 3d ed. § 348: The purchaser 
 buys at his own risk, unless the seller gives 
 an express warranty, or unless the law im- 
 plies a warranty from the circumstances of 
 the case or the nature of the thing sold, or 
 unless the seller be guilty of fraudulent mis- 
 representation or concealment in respect to 
 a material inducement to the sale; Benj. 
 Sales, § 611 ; Barnard v. Kellogg, 10 Wall. (U. 
 S.) 383, 19 L. Ed. 987; Gaylord Mfg. Co. v. 
 Allen, 53 N. Y. 515; Porter v. Bright, 82 Pa. 
 441; Mixer v. Coburn, 11 Mete. (Mass.) 559, 
 45 Am. Dec. 230; Dean v. Morey, 33 la. 120; 
 Roseman v. Canovan, 43 Cal. 110 ; Arm- 
 strong v. Bufford, 51 Ala. 410; Biggs & Co. 
 v. Perkins, 75 N. C. 397. It is the settled 
 doctrine of English and American law that 
 the purchaser is required to notice such 
 qualities of the goods purchased as are rea- 
 sonably supposed to be within the reach of 
 his observation and judgment. Under the 
 civil law there was on a sale for a fair price 
 an implied warranty of title and that the 
 goods sold were sound, but under the com- 
 mon law there is a clear distinction between 
 the responsibility of the seller as to title and 
 as to quality; the former he warranted, the 
 latter, if the purchaser had opportunity to 
 examine, he did not; 2 Kent 47S; Pothier, 
 Cont. de Vente, No. 184; See Misrepresen- 
 tation; Concealment; Sales; Warranty. 
 
 This doctrine does not apply in an action 
 for damages for inducing one by false repre- 
 sentations to take an assignment of a lease 
 executed by one who had no title to the 
 land ; Cheney v. Powell, 88 Ga. 629, 15 S. E. 
 750. It was applied where the buyer of cows 
 was a competent judge and had ample time, 
 before buying, for inspection ; Dorsey v. 
 Watkins, 151 Fed. 340. 
 
 Consult Rawle. Covenants for Title ; Ben- 
 jamin, Sales; Story, Sales; 2 Kent 478; 
 
 Leake, Cont. 198; 1 Story, Equity; Sugden, 
 Vendors & P. 
 
 CAVEATOR. One who files a caveat 
 
 CAYAGIUM. A toll or duty paid the king 
 for landing goods at some quay or wharf. 
 The barons of the Cinque Ports were free 
 from this duty. Cowell. 
 
 CEAPGILD. Payment of an animal. An 
 ancient species of forfeiture. Cowell. 
 
 CEDE. To assign; to transfer. Applied 
 to tbe act by wbich one state or nation trans- 
 fers territory to another. 
 
 CEDENT. An assignor. The assignor of 
 a chose in action. Kames, Eq. 43. 
 
 CEDULA. In Spanish Law. A written ob- 
 ligation, under private signature, by which a 
 party acknowledges himself indebted to an- 
 other in a certain sum, which he promises to 
 pay on demand or on some fixed day. 
 
 In order to obtain judgment on such an instru- 
 ment, it is necessary that the party executing it 
 should acknowledge it in open court, or that it be 
 proved by two witnesses who saw its execution. 
 
 The citation affixed to the door of an ab- 
 sconding offender, requiring him to appear 
 before the tribunal where the accusation is 
 pending. 
 
 CELEBRATION OF MARRIAGE. The 
 
 solemn act by which a man and woman take 
 each other for husband and wife, conforma- 
 bly to the rules prescribed by law. 
 
 CELIBACY. The state or condition of life 
 of a person not married. 
 
 CEMETERY. A place set apart for the 
 burial of the dead. Cemeteries are regulated 
 In England and many of the United States 
 by statute. 
 
 After ground has once been devoted to this 
 object it can be applied to secular purposes 
 only with the sanction of the legislature ; L. 
 R. 4 Q. B. 407 ; Sohier v. Church, 109 Mass. 1. 
 
 An abandoned cemetery, from which all 
 the bodies had not been removed, cannot be 
 sold ; Ritter v. Couch (W. Va.) 76 S. E. 428, 
 42 L. R. A. (N. S.) 1216. A cemetery associa- 
 tion holds the fee of lands purchased for the 
 purposes of the association. The persons to 
 whom lots are conveyed for burial purposes 
 take only an easement — the rigbt to use their 
 lots for such purposes; Buffalo City Ceme- 
 tery v. Buffalo, 46 N. Y. 503 ; People v. Trus- 
 tees of St. Patrick's Cathedral, 21 Hun (N. 
 Y.) 184; Washb. Easem. 604; Sohier v. 
 Church, 109 Mass. 21; Price v. Church, 4 
 Ohio 515; it resembles the grant of a pew 
 in a church ; Jones v. Towne, 58 N. H. 462, 
 42 Am. Rep. 602; Sohier v. Church, 109 
 Mass. 1. It is a mere (exclusive) usufructu- 
 ary right, subject to the conditions of the 
 charter and by-laws of the cemetery com- 
 pany ; Roanoke Cemetery Co. v. Goodwin, 
 101 Va. 605, 44 S. E. 769. It is in the na- 
 ture of an easement ; id. ; so is the right to 
 burial in a particular burial vault; 22 Beav.
 
 CEMETERY 
 
 439 
 
 CEMETERY 
 
 596 ; capable of being created by deed only ; 
 8 B. & C. 288; but It can be created by pre- 
 scription; Hook v. Joyce, 94 Ky. 450, 22 S. 
 W. 651, 21 L. R. A. 96. It has been held to 
 be a license; Buffalo City Cemetery v. Buf- 
 falo, 46 N. Y. 503; Page v. Syinonds, 63 N. 
 H. 17, 56 Am. Rep. 481. A statute directing 
 a removal of bodies, without providing com- 
 pensation to the lot owners, is constitutional ; 
 \V. ill. v. Church of Williamsburgh, 80 llun 
 266, 30 N. Y. Supp. 157. In the absence of 
 a deed, or certificate equivalent thereto, they 
 are mere licensees ; 8 B. ft < '. 288. Non-resi- 
 dence does not divest an heir at law of an 
 easement in a burial lot while the grave- 
 stones of his parents remain; Hook v. Joyce, 
 94 Ky. 450, 22 S. YV. 651, 21 L. R. A. 96. 
 
 Their rights cease when the cemetery is 
 vacated, as such, by authority of law ; Part- 
 ridge v. Church, 39 Md. 631 ; Craig v. Church, 
 88 Pa. 42, 32 Am. Rep. 417; and the owner 
 of a lot in which no interments have been 
 made, loses all use of it by the passage of a 
 law making interments therein unlawful ; 
 Kincaid's Appeal, 66 Pa. 411, 5 Am. Rep. 377. 
 An act declaring it unlawful to open a pub- 
 lic street through a cemetery does not pre- 
 vent one who has laid out a cemetery from 
 dedicating a strip along the edge of it which 
 he still owns for a public alley, it not abridg- 
 ing the rights of parties to whom lots had 
 been sold ; Du Bois Cemetery Co. v. Griffin, 
 165 Pa. 81, 30 Atl. 840. 
 
 A cemetery association has the right to 
 limit all interments to the family of the lot 
 owner and their relatives; Farelly v. Ceme- 
 tery Ass'n, 44 La. Ann. 28, 10 South. 386. 
 
 The property of cemetery associations is 
 usually exempt from taxation; Woodlawn 
 Cemetery v. Inhabitants of Everett, 118 
 Mass. 354; People v. Cemetery Co., 86 111. 
 336, 29 Am. Rep. 32 ; People v. Pratt, 129 N. 
 Y. 6S, 29 N. E. 7; and this exemption has 
 been held to include immunity from claims 
 for municipal improvements; Olive Ceme- 
 tery Co. v. City of Philadelphia, 37 Leg. Int. 
 (Pa.) 264. See 1 Washb. R. P. 9; Washb. 
 Easem. 515 ; Cooley, Tax. 203 ; but it is held 
 that it would not be relieved from paying an 
 assessment for street improvements ; Lima v. 
 Cemetery Ass'n, 42 Ohio St. 128, 51 Am. Rep. 
 S00 ; Alexander v. City Council, 5 Gill (Md.) 
 396, 46 Am. Dec. 630; Boston Seamen's 
 Friend Society v. Boston, 116 Mass. 181, 17 
 Am. Rep. 153; President, etc., of City of 
 Paterson v. Society, 24 N. J. L. 3S5; People 
 v. Cemetery Co., SO 111. 336, 29 Am. Rep. 
 32 ; Sheehan v. Hospital, 50 Mo. 155, 11 Am. 
 Rep. 412. 
 
 A lot owner may maintain an action of 
 trespass against one who wrongfully tres- 
 passes upon it; Smith v. Thompson, 55 Md. 
 5, 39 Am. Rep. 409; Gowen v. Bessey, 94 Me. 
 114, 46 Atl. 792 ; it has been held that he 
 may even sue the owner of the fee for such 
 wrongful act; Hon: v. Olson, 101 Wis. 1181, 
 
 76 N. W. 1121, 70 Am. St. Rep. 903; fi 
 mer Land & Improvement Co. v. Jenkins, 111 
 Ala. 135, 18 South. 565, 56 Am. St. Re] 
 He may enjoin the cemetery association from 
 preventing a member of bis family from be- 
 ing buried in the family lot; Wright v. Cem- 
 etery Corp., 112 Ga. 884, 38 S. B. 94, 
 R. A. 51il ; or from removing the ashes of 
 the dead; Beatty v. Kurtz. 2 Pet 
 7 L. Ed. 521; or may obtain an ord 
 compel the association to keep the grounds 
 in good order and maintain the whole as a 
 cemetery ; Clark v. Cemetery Co., 69 N. J. 
 Eq. 636, 61 Atl. 26L 
 
 An injunction may issue against the lot 
 owner and the cemetery association to pre- 
 vent the burial of a dog; Hertle v. RlddeU, 
 127 Ky. 623, 106 S. W. 282, 15 L. R. A. (N. 
 S.) 796, 128 Am. St. Rep. 364. 
 
 A purchaser of a lot must look to the char- 
 ter and by-laws of the corporation, they be- 
 ing part of his contract of purchase. When 
 the by-laws provide that "this cemetery is 
 set apart for the burial of the white race," 
 a negro may not be buried therein ; Hertle 
 v. Riddell, 127 Ky. 623, 106 S. W. 282, 15 L. 
 R. A. (N. S.) 796, 128 Am. St Rep. 364 ; Peo- 
 ple v. Cemetery Co., 258 111. 36, 101 N. E. 
 219. One who purchased a lot in a di- 
 tively Roman Catholic cemetery takes it with 
 the tacit understanding that he will not be 
 allowed to use it for the burial of one not a 
 member of that church ; People v. Trustees 
 of St Patrick's Cathedral, 21 Hun (X. Y.i 
 184 ; Dwenger v. Geary, 113 Ind. 106, 1 1 N. 
 E. 903. But, where a lot was sold to a col- 
 ored man for burial purposes, the corpora- 
 tion was not allowed afterwards to el 
 its by-laws so as to exclude him and his fam- 
 ily from the right of burial therein; Mt. 
 Moriah Cemetery Ass'n v. Com., 81 Pa. 235, 
 22 Am. Rep. 743. 
 
 Where a testator devised to trustees a lot 
 of ground for burial of the dead of his fam- 
 ily, without any fund for its care, and the 
 lot fell into disuse, the Orphans' Court may 
 decree its sale and apply the proceeds in part 
 to buying a lot in another cemetery, remov- 
 ing the dead, marking the graves or caring 
 for the lot in the future and may divide the 
 remainder among the heirs of the testator, 
 but With no part for an elaborate monument 
 to the testator; Young's Estate. 224 Pa. 570, 
 73 Atl. 041. The residue is distributal 
 real estate; Young's Estate, 20 Pa.D.R.686. 
 
 See Dead Body; Charitable Uses (as to 
 a legacy to keep a lot in order). 
 
 CENE6ILD. In Saxon Law. A pecuniary 
 mulct or fine paid to the relations of a mur- 
 dered person by the murderer or his rela- 
 tions. Spelman, Gloss. 
 
 CENNINGA. A notice given by a buyer to 
 a seller that the things which had been sold 
 were claimed by another, in order that he
 
 CENNINGA 
 
 440 
 
 CENSUS REGALIS 
 
 might appear and justify the sale. Blount; 
 Whishaw. 
 
 The exact significance of this term is somewhat 
 doubtful. It probably denoted notice, as defined 
 above. The finder of stray cattle was not always 
 entitled to It; for Spelman says, "As to strange (or 
 stray) cattle, no one shall have them but with the 
 consent of the hundred of tithingmen ; unless he 
 have one of these, we cannot allow him any cen- 
 ninga (I think notice)." Spelman, Gloss. 
 
 CENS. In Canadian Law. An annual pay- 
 ment or due reserved to a seigneur or lord, 
 and imposed merely in recognition of his su- 
 periority. Guyot, Inst. c. 9. 
 
 The land or estate so held is called a censive; the 
 tenant is a censitarie. It was originally a tribute 
 of considerable amount, but became reduced in 
 time to a nominal sum. It is distinct from the 
 rentes. The cens varies in amount and in mode 
 of payment. Payment is usually in kind, but may 
 be in silver ; 2 Low. C. 40. 
 
 CENSARIA. A farm, or house and land, 
 let at a standing rent. Cowell. 
 
 CENSO. In Spanish and Mexican Law. 
 
 An annuity ; a ground rent. The right which 
 a person acquires to receive a certain annual 
 pension, in consideration of the delivery to 
 another of a determined sum of money or of 
 an immovable thing. Civil Code Mex. art. 
 3206; Black, Diet,; Trevino v. Fernandez, 
 13 Tex. 655. 
 
 CENSO RESERVATIO. In Spanish and 
 Mexican Law. The right to receive from an- 
 other an annual pension by virtue of having 
 transferred land to him by full and perfect 
 title. Trevino v. Fernandez, 13 Tex. 655. 
 
 CENSUS. An official reckoning or enu- 
 meration of the inhabitants and wealth of a 
 country. 
 
 The census of the United States is taken 
 every tenth year, in accordance with the con- 
 stitution ; and many of the states have made 
 provisions for a similar decennial reckoning 
 at intervening periods. 
 
 The act of July 2, 1909, provides for the 
 13th and subsequent censuses. The period of 
 three years beginning July 1st next preced- 
 ing the census, is designated as the decennial 
 census period and the reports must be com- 
 pleted and published within that period. 
 
 Certified copies of census returns are ad- 
 missible in evidence upon the question of the 
 age of a citizen deceased since the return 
 was made; Priddy v. Boice, 201 Mo. 309, 99 
 S. W. 1055, 9 L. R. A. (N. S.) 718, 119 Am. 
 St. Rep. 762, 9 Ann. Cas. 874; but the rec- 
 ord does not import absolute verity ; "West- 
 ern Cherokee Indians v. U. S., 27 Ct. CI. 1. 
 
 The courts take judicial notice of the re- 
 sults of a census ; State v. Braskamp, 87 la. 
 5SS, 54 N. W. 532; People v. Williams, 64 
 Cal. 87, 27 Pac. 939; Guldin v. Schuylkill 
 County, 149 Pa. 210, 24 Atl. 171; Hawkins 
 v. Thomas, 3 Ind. App. 399, 29 N. E. 157; 
 State v. County Court, 128 Mo. 427, 30 S. W. 
 103; centra, People v. Rice, 135 N. Y. 473, 
 31 N. E. 921, 16 L. R. A. 836. 
 
 CENSUS REGALIS. The royal property 
 (or revenue). 
 
 CENT (Lat. centum, one hundred). A 
 coin of the United States, weighing forty- 
 eight grains, and composed of ninety-five per 
 centum of copper and of tin and zinc in such 
 proportions as shall be determined by the Di- 
 rector of the Mint Act of Feb. 12, 1873, s. 
 13. See Rev. Stat, section 3515. 
 
 Previous to the act of congress just cited, the 
 cent was composed wholly of copper. By the act 
 of April 2, 1792, Stat at Large, vol. 1, p. 248, the 
 weight of the cent was fixed at eleven penny- 
 weights, or 264 grains; the half cent in proportion. 
 Afterwards, namely, on the 14th of January, 1793, it 
 was reduced to 208 grains; the half-cent in pro- 
 portion. 1 U. S. Stat, at Large, 299. In 1796 (Jan. 
 ii6), by the proclamation of President Washington, 
 who was empowered by law to do so, act of March 
 3, 1795, sect 8, 1 U. S. Stat, at Large, 440, the cent 
 was reduced in weight to 168 grains; the half-cent 
 in proportion. It remained at this weight until thn 
 passage of the act of Feb. 21, 1857, which provided 
 for a weight of seventy-eight grains and an alloy of 
 eighty-eight per centum of copper and twelve of 
 nickel. The same act directs that the coinage of 
 half-cents should cease. By the coinage act of Feb. 
 12, 1873, the weight and alloy were fixed as above 
 stated. The first issue of cents from the national 
 mint was in 1793, and has been continued every year 
 since, except 1815. But in 1791 and 1792 some experi- 
 mental pieces were struck, among which was the so- 
 called Washington cent of those years. 
 
 C EN TEN A. See Hundred. 
 
 CENTESIMA (Lat. centum). In Roman 
 Law. The hundredth part. 
 
 Usurice centesimce. Twelve per cent, per annum; 
 that- is, a hundredth part of the principal was due 
 each month, — the month being the unit of time for 
 which the Romans reckoned interest. 2 Bla. Com. 
 462, n. 
 
 CENTRAL CRIMINAL COURT. A court 
 in England (erected in 1834) which is the 
 court of assize and of quarter sessions for 
 the city of London and its liberties and the 
 court of assize for the counties of London 
 and Middlesex, and parts of Essex, Kent 
 and Surrey. It has jurisdiction over all of- 
 fences committed on the high seas or within 
 the jurisdiction of the admiralty and offenc- 
 es committed outside its jurisdiction, sent 
 to it by the King's Bench Division under 
 a writ of certiorari. It consists of the lord 
 chancellor, the judges of the High Court, the 
 lord mayor, the aldermen, recorder, and com- 
 mon serjeant of the city of London, and two 
 commissioners. 
 
 Twelve sessions at least are held every 
 year, at the Old Bailey. The important cas- 
 es are heard in a session of the court pre- 
 sided over by two of the judges of the High 
 Court. The less important cases are tried 
 by either the recorder or common serjeant. 
 Odger, C. L. 986. 
 
 CENTUMVIRI (Lat. one hundred men). 
 The name of a body of Roman judges. 
 
 Their exact number was one hundred and five, 
 there being selected three from each of the thirty- 
 five tribes comprising all the citizens of Rome. 
 They constituted, for ordinary purposes, four tribu- 
 nals ; but some cases (called centumvirales causce} 
 required the judgment of all the judges. 3 Bla 
 Com. 515.
 
 CENTURY 
 
 441 
 
 CERT MONEY 
 
 CENTURY. One hundred. One hundred 
 years. 
 
 The Romans were divided into centuries, as the 
 English were formerly divided Into hundreds. 
 
 CEORL. A tenant at will of free condi- 
 tion, who held land of the thane on condition 
 of paying rent or services. 
 
 A freeman of inferior rank occupied in 
 husbandry. Spelman, Gloss. 
 
 Those who tilled the outlands paid rent ; ' those 
 who occupied or tilled the inlands, or demesne, 
 rendered services. Under the Norman rule, this 
 term, as did others which denoted workmen, es- 
 pecially those which applied to the conquered race, 
 became a term of reproach, as is Indicated by the 
 popular signification of churl. Cowell; Spelman, 
 Gloss. See 1 Poll. & Maltl. 8: 2 id. 458. 
 
 CEPI (Lat). I have taken. It was of 
 frequent use in the returns of sheriffs when 
 they were made in Latin ; as, for example, 
 cepi corpus et B. B. (I have taken the body 
 and discharged him on bail bond) ; cepi cor- 
 pus et est in eustodia (I have taken the body 
 and it is in custody) ; cepi corpus et est 
 languidus (I have taken the body and he is 
 sick ) . 
 
 CEPIT (Lat. capere, to take; ccpit, he 
 took or has taken). A form of replevin 
 which is brought for carrying away goods 
 merely. Wells, Repl. § 53 ; Cummings v. 
 Vorce, 3 Hiil (N. Y.) 282. Non detinet is 
 not the proper answer to such a charge; 
 Davis v. Calvert, 17 Ark. 85. And see Ford 
 v. Ford, 3 Wis. 399. Success upon a non 
 cepit does not entitle the defendant to a re- 
 turn of the property; Douglass v. Garrett, 5 
 Wis. S5. A plea of non cepit is not inconsist- 
 ent with a plea showing property in a third 
 person; Smith v. Morgan, 8 Gill (Md.) 133. 
 
 A technical word necessary in an indict- 
 ment for larceny. The charge must be that 
 the defendant took the thing stolen with a 
 felonious design. Bacon, Abr. Indictment, 
 G., 1. 
 
 CEPIT ET ABDUXIT (Lat). He took 
 and led away. Applicable in a declaration 
 in trespass or indictment for larceny where 
 the defendant has taken away a living chat- 
 tel. 
 
 CEPIT ET ASPORTAVIT (Lat.). He 
 took and carried away. Applicable in a dec- 
 laration in trespass or an indictment for 
 larceny where the defendant has carried 
 away goods without right. 4 Bla. Com. 231. 
 See Carrying Away ; Larceny. 
 
 CEPIT IN ALIO LOCO (Lat he took in 
 another place). A plea in replevin, by which, 
 the defendant alleges that he took the thing 
 replevied in another place than that men- 
 tioned in the declaration; 1 Chit. PI. 490; 
 *> 2 id. 558 ; Rast Entr. 554, 555 ; Morris, Repl. 
 141 ; Wells, Repl. § 707. It is the usual plea 
 where the defendant intends to avow or jus- 
 tify the taking to entitle himself to a re- 
 turn. 
 
 CERT MONEY. The head-money given by 
 the tenants of several manors yearly to the 
 lords, for the purpose of keeping up certain 
 inferior courts. Called in the ancient rec- 
 ords certum letce (leet money). Cowell. 
 
 CERTAINTY. In Contracts. Distinctness 
 and accuracy of statement 
 
 A thing is certain when its essence, quality, and 
 quantity are described, distinctly set forth, etc. 
 Dig. 12, 1. 6. It is uncertain when the description is 
 not that of an individual object, but designates only 
 the kind. La. Civ. Code, art. 3522, no. 8; 5 Co. 121. 
 
 If a contract be so vague in its terms that 
 its meaning cannot be certiinly collected, 
 and the statute of frauds preclude the ad- 
 missibility of parol evidence to clear up the 
 difficulty; 5 B. & C. 583; or parol evidence 
 cannot supply the defect then neither at 
 law nor in equity can effect be given to it; 
 1 R. & M. 116. If it is impossible to 
 tain any definite meaning, such agreement 
 is necessarily void; [1892] Q. B. 478. As to 
 uncertainty of contract see Davie v. Min. 
 Co., 93 Mich. 491, 53 X. W. 625, 24 L. R. A. 
 357 ; Van Schaick v. Van Buren, 70 Hun 575, 
 24 N. Y. Supp. 30G. 
 
 It is a maxim of law that that is certain 
 which may be made certain: id certum est 
 quod certum reddi potest; Co. Litt 43. For 
 example, when a man sells the oil he has in 
 his store at so much a gallon, although there 
 is uncertainty as to the quantity of oil, yet, 
 inasmuch as it can be ascertained, the max- 
 im applies, and the sale is good. See, gen- 
 erally, Story, Eq. § 240; Mitf. Eq. PI., Jere- 
 my ed. 41. 
 
 in Pleading. Such clearness and distinct- 
 ness of statement of the facts which consti- 
 tute the cause of action or ground of de- 
 fence that they may be understood by the 
 party who is to answer them, by the jury 
 who are to ascertain the truth of the allega- 
 tions, and by the court who are to give the 
 judgment. 2 B. & P. 207; Co. Litt 303; 
 Com. Dig. Pleader. See Giroux Amalgama- 
 tor Co. v. White, 21 Or. 435, 28 Pac. 390. 
 
 Certainty to a common intent is attained 
 by a form of statement in which words are 
 used in their ordinary meaning, though by 
 argument or inference they may be made 
 to bear a different one. See 2 H. Bla. 530; 
 Andr. Steph. PI. 384. 
 
 Certainty to a certain intent in general is 
 attained when the meaning of the statute 
 may be understood upon a fair and reason- 
 able construction without recurrence to pos- 
 sible facts which do not appear: 1 Wins. 
 Saund. 49; Spencer v. Southwiek. 9 Johns. 
 (N. Y.) 317; Fuller v. Hampton, 5 Conn. 423. 
 
 Certainty to a a rtain intent in particular 
 is attained by that technical accuracy of 
 statement which precludes all argument, in- 
 ference, and presumption against the party 
 pleading. When this certainty is required, 
 the party must not only state the facts of 
 his case in the most precise way, but add to 
 them such as show that they are not to be
 
 CERTAINTY 
 
 442 
 
 CERTIFICATE 
 
 controverted, and, as it were, anticipate the 
 case of his adversary ; Lawes, PI. 54. 
 
 The last description of certainty is re- 
 quired in estoppels ; Co. Litt. 303 ; 2 H. Bla. 
 530; Dougl. 159; and in pleas which are not 
 favored in law, as alien enemy ; 8 Term 167; 
 Russel v. Skipwith, G Binn (Pa.) 247. See 
 Clarke v. Morey, 10 Johns. (N. Y.) 70. With 
 respect to an indictment, it is laid down that 
 "an indictment ought to be certain to every 
 intent, and without any intendment to the 
 contrary;" Cro. Eliz. 490; and the charge 
 contained in it must be sufficiently explicit 
 to support itself; for no latitude of inten- 
 tion can be allowed to include anything more 
 than is expressed; 2 Burr. 1127; U. S. v. 
 Cruikshank, 92 U. S. 542, 23 L. Ed. 58S; U. 
 S. v. Simmons, 96 U. S. 360, 24 L. Ed. 819; 
 State v. Stiles, 40 la. 148 ; State v. Philbrick, 
 31 Me. 401; Com. v. Terry, 114 Mass. 263; 
 State v. Pancher, 71 Mo. 460; State v. Mes- 
 senger, 58 N. H. 348. 
 
 These definitions, which have been adopt- 
 ed from Coke, have been subjected to severe 
 criticism, but are -of some utility in draw- 
 ing attention to the different degrees of ex- 
 actness and fulness of statement required in 
 different instances. Less certainty is requir- 
 ed where the law presumes that tbe knowl- 
 edge of the facts is peculiarly in the opposite 
 party ; 8 East 85 ; 13 id, 112 ; 3 Maule & S. 
 14; People v. Dunlap, 13 Johns. (N. Y.) 437. 
 
 Less certainty than would otherwise be 
 requisite is demanded in some cases, to 
 avoid prolixity of statement; 2 Wms. Saund. 
 117, n. 1. See, generally, 1 Chit. PI. 
 
 CERTIFICANDO DE REC0GNITI0NE 
 STAPUL/E. In English Law. A writ com- 
 manding the mayor of the staple to certify 
 to the lord chancellor a statute staple taken 
 before him where the party himself detains 
 it, and refuses to bring in the same. There 
 Is a like writ to certify a statute merchant 
 and in divers other cases. Reg. Orig. 148; 
 Black, Diet. 
 
 CERTIFICATE. A writing made in any 
 court, and properly authenticated, to give 
 notice to another court of anything done 
 therein. 
 
 A writing by which testimony is given 
 that a fact has or has not taken place. 
 
 Certificates are either required by law, as 
 an insolvent's certificate of discharge, an 
 alien's certificate of naturalization, which 
 are evidence of the facts therein mentioned ; 
 or voluntary, which are given of the mere 
 motion of the party giving them, and are 
 in no case evidence. Com. Dig. Chancery 
 (T. 5) ; 1 Greenl. Ev. § 498; 2 Willes 549. 
 
 There were anciently various modes of 
 trial commenced by a certificate of various 
 parties, which took the place of a writ in a 
 common-law action. See Com. Dig. Certifi- 
 cate. 
 
 By statute, the certificates of various of- 
 ficers may be made evidence, in which case 
 
 the effect cannot be extended by including 
 facts other than those authorized ; 1 Maule 
 & S. 599; U. S. v. Buford, 3 Pet. (U. S.) 12, 
 29, 7 L. Ed. 585; Arnold v. Tourtellot, 13 
 Pick. (Mass.) 172 ; Stewart v. Allison, 6 S. & 
 R. (Pa.) 324, 9 Am. Dec. 433; Governor v. 
 Bell, 7 N. C. 331; Exchange & Banking Co. 
 of New Orleans v. Boyce, 3 Rob. (La.) 307. 
 An officer who has made a defective certifi- 
 cate of a married woman's acknowledgment 
 cannot correct the defect after the expira- 
 tion of his term; Griffith v. Ventress, 91 
 Ala. 366, 8 South. 312, 11 L. R. A. 193, 24 
 Am. St. Rep. 918; nor can he contradict his 
 own certificate by testifying to fraud and 
 coercion on the part of the husband to- 
 ward the wife; Hockman v. McClanahan, 
 87 Va. 33, 12 S. E. 230. A certificate of ac- 
 knowledgment is a judicial act, and in the 
 absence of fraud conclusive of material facts 
 stated in it; Cover v. Manaway, 115 Pa. 33S, 
 8 Atl. 393, 2 Am. St Rep. 552; Citizen's Sav- 
 ing & Loan Ass'n v. Heiser, 150 Pa. 514, 
 24 Atl. 733; but only of facts required by 
 statute to be included in it, and therefore 
 not that the wife of the grantor was of 
 full age ; Williams v. Baker, 71 Pa. 476. See 
 Return; Notary; Acknowledgment; Stock. 
 
 CERTIFICATE OF ASSIZE. A writ 
 granted for the re-examination or retrial of 
 a matter passed by assize before justices. 
 Fitzh. Nat. Brev. 181. It is now entirely ob- 
 solete. 3 Bla. Com. 389. Consult, also, Com- 
 yns, Dig. Assize (B, 27, 28). 
 
 CERTIFICATE OF COSTS. See Judge's 
 Certificate. 
 
 CERTIFICATE OF DEPOSIT. A written 
 statement from a bank that the party named 
 therein has deposited the amount of money 
 specified in the certificate and that the same 
 is held subject to his order in accordance 
 with the terms thereof. 
 
 When payable at a future date, with in- 
 terest till due, for the use of a person named 
 or to his order, upon return of the certifi- 
 cate, it is a negotiable promissory note; 
 Miller v. Austen, 13 How. (U. S.) 218, 14 L. 
 Ed. 119; Bull v. Bank, 123 U. S. 105, 8 Sup. 
 Ct. 62, 31 L. Ed. 97; In re Baldwin's Estate, 
 170 N. Y. 160, 63 N. E. 62, 58 L. R. A. 124; 
 Poorman v. Mills, 35 Cal. 118, 95 Am. Dec. 
 90; Lynch v. Goldsmith, 64 Ga. 42; Beards- 
 ley v. Webber, 104 Mich. 88, 62 N. W. 173; 
 Bank of Saginaw v. Title & Trust Co., 105 
 Fed. 491 ; Forrest t. Trust Co., 174 Fed. 345. 
 This has been substantially followed in all 
 the states except Pennsylvania, where it has 
 .always been held otherwise, if the certificate 
 contains no express promise to pay; Patter- 
 son v. Poindexter, 6 W. & S. (Pa.) 227, 40 
 Am. Dec. 554; and this was recognized to be 
 the law in Pennsylvania as late as 1909 ; For- 
 rest v. Trust Co., 174 Fed. 345, where the 
 court followed the rule of Miller v. Austen, 
 13 How. (U. S.) 218, 14 L. Ed. 119; and ex- 
 pressed the opinion that such certificates
 
 CERTIFICATE OF DEPOSIT 
 
 443 
 
 CERTIORARI 
 
 were negotiable under the Negotiable Instru- 
 ments Act enacted in Pennsylvania, as well 
 as under the general commercial law. 
 
 CERTIFICATE OF REGISTRY. A cer- 
 tificate that a ship has been registered as 
 the law requires. 3 Kent 149. Under the 
 United States statutes, "every alteration in 
 the property of a ship must be indorsed on 
 the certificate of registry, and must Itself 
 be registered." Unless this is done, the ship 
 or vessel loses its national privileges as an 
 American vessel; 1 Pars. Sh. & Adm. 50. 
 The English statutes make such a transfer 
 void. Stat. 3 & 4 Will. IV, c. 54; 17 & 18 
 Vict. c. 104; Abb. Sh. (13th ed.) 92& 
 
 The registry is not a document required 
 by the law of nations as expressive of a 
 ship's national character; 4 Taunt. 367; and 
 is at most only prima facie evidence of own- 
 ership; U. S. v. Brune, 2 Wall. Jr. 264, Fed. 
 Cas. No. 14.677; Newb. Adm. 176, 312; Lin- 
 coln v. Wright, 23 Pa. 76. 62 Am. Dec. 316; 
 Brooks v. Minturn, 1 Cal. 481; 33 E. L. & 
 Eq. 204. The registry acts are to be con- 
 sidered as forms of local or municipal in- 
 stitution for purposes of public policy; 3 
 Kent 149. 
 
 CERTIFIED CHECK. A check which has 
 been recognized by the proper officer as a 
 valid appropriation of the amount of money 
 therein specified to the person therein named, 
 and which bears upon itself the evidence of 
 such recognition. See Check. 
 
 CERTIFIED PUBLIC ACCOUNTANT. A 
 
 term applied to trained accountants who 
 examine the books of accounts of corpora- 
 tions and others and report upon them. See 
 Auditor. 
 
 CERTIORARI. A writ issued by a superi- 
 or to an inferior court of record, or other 
 tribunal or officer, exercising a judicial func- 
 tion, requiring the certification and return 
 to the former of some proceeding then pend- 
 ing, or the record and proceedings in some 
 cause already terminated, in cases where 
 the procedure is not according to the course 
 of the common law. 
 
 The extensive use of this writ and the lack of 
 precise judicial definition of the public bodies and 
 proceedings to which it is applicable lend interest 
 to the early common law definitions, which are of 
 value since the use of the writ is still usually reg- 
 ulated by common law principles and precedents. 
 
 The most frequently quoted common law defini- 
 tions are those of Fitzherbert and Bacon, by the 
 first of which the writ lies in the case of records 
 of the courts, the treasury, sheriffs, coroners, com- 
 missioners, escheators ; F. N. B. 554 A. He includes 
 among forms given one to the mayor and sheriff 
 of London in case of indictment and attachment 
 and one to the mayor and sheriffs of York in assize 
 of fresh force sued out before them without writ; 
 id. 554 E, 557 L. Bacon uses only the general terms, 
 "judges or officers of inferior courts" ; Bac. Abr. 
 M.62 ; but in an enumeration of instances entitled 
 "to what court it lies" he puts an "inquisition taken 
 by a sheriff . . . and the verdict and judgment 
 thereon," which were quashed on the ground that, 
 no notice appearing, the record did not show juris- 
 diction, and on objection that the writ did not, he 
 was answered that "there can be no doubt of that 
 
 if it is not prohibited by the act of Parliament" ; 
 id. 168, citing 4 Burr. 2244. It was said that "the 
 ice of this (Bacon's) definition has never 
 been departed from, except where the statute has 
 broadened the scope of the writ" ; In re Dance, 
 2 N. D. 184, 49 N. W. 733, 33 Am. St. Rep. 768. The 
 English Court of Appeal says that "certiorari Is a 
 writ in aid of justice, and is the apt means of pre- 
 venting the infliction or continuance of wrong from 
 any assumption or excess of jurisdiction"; 2 L. R. 
 (K. B.) 318; it is matter of discretion, not of 
 right; id. 
 
 Blackstone refers only to it as a means of remov- 
 ing criminal causes from an inferior court to the 
 King's Bench, as the supreme court of criminal 
 jurisdiction; 4 Bla. Com. 265; or cases of Peers 
 to the House of Lords ; id. 321 ; or after summary 
 order in a lower court which might be quashed or 
 confirmed; id. 272. It might be granted at the in- 
 stance of either prosecution or defendant, in the 
 former case as matter of right, in the latter as 
 matter of discretion; id. 3-1. 
 
 The function of the writ is to secure the correction 
 of errors of a judicial nature in the proceedings of 
 inferior courts or in the decisions of special tribu- 
 nals, commissioners, magistrates and officers exer- 
 cising judicial powers affecting the property or 
 rights of a citizen, who act in a summary way, and 
 not according to the course of the common law, 
 and it also applies in many cases to the proceedings 
 of municipal corporations. It has also been allowed 
 when the power is ministerial but necessarily con- 
 nected with judicial action; People v. Hill, 65 Barb. 
 (N. Y.) 170; In re Nichols, 6 Abb. N. C. (N. Y.) 
 474. The writ is issued in two classes of cases: (1) 
 Where the inferior court has exceeded its jurisdic- 
 tion; (2) where it has proceeded illegally and there 
 is no appeal or writ of error ; White v. Wagar, 185 
 111. 195, 57 N. E. 26, 50 L. R. A. 60, quoting Hyslop v. 
 Finch, 99 111. 171. 
 
 "Official acts, executive, legislative, administra- 
 tive or ministerial in their nature or character, 
 were never subject to review by certiorari. The 
 writ could be issued only for the purpose of re- 
 viewing some judicial act ;" People v. Brady, 16S 
 N. Y. 44, 47, 59 N. E. 701; St. Louis, S. F. & T. Ry. 
 Co. v. Seale, 229 U. S. 156, 33 Sup. Ct. 651, 57 L Ed. 
 — . In some states the writ has been abolished 
 by statute so far as the common law name is con- 
 cerned, but the remedy Is preserved under the new 
 statutory name of "writ of review"; but this term 
 and the old one mean precisely the same remedy, 
 except bo far as it may be modified by statute; 
 People v. County Judge, 40 Cal. 479 ; Sutherlin v. 
 Roberts, 4 Or. 388; Southwestern Telegraph & Tele- 
 phone Co. v. Robinson, 48 Fed. 771, 1 C. C. A. 91. 
 So where, by statute, appellate proceedings are to 
 be taken by appeal in all cases theretofore covered 
 by error, appeal or certiorari, but the right of 
 review is not changed in extent, it was held that 
 the appeal was in effect a common law certiorari, 
 and the right to issue a certiorari remained the 
 same as before ; Rand v. King, 134 Pa. 641, 19 Atl. 
 806 ; so an appeal in a habeas corpus case is equiv- 
 alent to a certiorari and brings up only the record; 
 Com. v. Superintendent of Philadelphia County 
 Prison, 220 Pa. 401, 69 Atl. 916, 21 L. R. A. (N. 
 S.) 939. 
 
 The writ lies in most of the states to re- 
 move from the lower courts pi 
 which are created and regulated by statute 
 merely, for the purpose of revision; Com. v. 
 West Boston Bridge, 13 Pick. (.Muss.) 195; 
 Bath Bridge & Turnpike Co. v. Magoun, 8 
 Greenl. (Me.) 293; Bob v. State, 2 Xerg. 
 (Tenn.) IT." ; Williamson v. Carnan, 1 G. & 
 J. (Md.) 196; Adams v. Newfane, 8 Vt. 271; 
 People v. Lawrence, 54 Barb. (N. Y.t 589; 
 John v. State, 1 Ala. 95; People v. Supervis- 
 ors, 8 Cal. 58; in re Robinson's Estate, 6 
 Mich. lo7; Board of Com'rs of liillsboro v.
 
 CERTIORARI 
 
 444 
 
 CERTIORARI 
 
 Smith, 110 N. C. 417, 14 S. E. 972 ; Miller v. 
 Trustees, 88 111. 27; and to complete the pro- 
 ceedings when the lower court refuses to do 
 so, upon erroneous grounds; Anonymous, 2 
 N. C. 302 ; Auditor v. Woodruff, 2 Ark. 73, 33 
 Am. Dec. 368; and to correct errors in law; 
 McAllilley v. Horton, 75 Ala. 491; Rawson v. 
 McElvaine, 49 Mich. 194, 13 N. W. 513; Lap- 
 an v. Cumberland County Com'rs, 65 Me. 
 160; Conover v. Davis, 48 N. J. L. 112, 2 
 Atl. 667. In England; 13 E. L. & Eq. 129; 
 9 L. R. Q. B. 350; and in some states; State 
 v. Stone, 3 H. & McH. (Md.) 115; State v. 
 Hunt, 1 N. J. L 2S7; People v. Vermilyea, 7 
 Cow. (N. Y.) 141; Com. v. McGinnis, 2 
 Whart. (Pa.) 117 ; State v. Washington, 6 N. 
 C. 100; John v. State, 1 Ala. 95; Kenney v. 
 State, 5 R. I. 385; the writ may also be 
 issued to remove criminal causes to a su- 
 perior court; Har. Certiorari 8. But see 
 Winn v. State, 10 Ohio 345. It also lies 
 where a probate court proceeds without 
 jurisdiction in admitting a claim against an 
 estate; Durham v. Field, 30 111. App. 121; 
 or where the court has jurisdiction but 
 makes an order exceeding its power ; State 
 v. County Court, 45 Mo. App. 387. It is 
 also given by statute to review the acts and 
 powers of official boards and officers ; Haven 
 v. County Com'rs, 155 Mass. 467, 29 N. E. 
 1083 ; State v. City of Ashland, 71 Wis. 502, 
 37 N. W. 809. 
 
 The writ has been used to review the 
 proceedings of courts-martial; Rathbun v. 
 Sawyer, 15 Wend. (N. Y.) 451; of canal ap- 
 praisers charged with acting without no- 
 tice; Fonda v. Canal Appraisers, 1 Wend. 
 (N. Y.) 288; of commissioners of appeal in 
 cases of taxation; State v. Falkinburge, 15 
 N. J. L. 320; of commissioners of highways; 
 Lawton v. Com'rs of Highways, 2 Cal. (N. 
 Y.) 179; or where a void order was made by 
 them; Fitch v. Com'rs of Highways, 22 
 Wend. (N. Y.) 132 ; a municipal assessment 
 for a local improvement departing essential- 
 ly from the statutory method ; People v. 
 Rochester, 21 Barb. (N. Y.) 656; common 
 council of a city in laying out a new street ; 
 State v. City of Fond du Lac, 42 Wis. 287. 
 It has also been issued upon the refusal 
 to grant a writ of habeas corpus on the 
 ground of want of jurisdiction; People v. 
 Mayer, 16 Barb. (N. Y.) 362; and upon the 
 discharge of a complaint under the act 
 abolishing imprisonment for debt on the 
 ground of want of proof; Learned v. Duval, 
 3 Johns. Cas. (N. Y.) 141. It may issue at 
 the suit of a taxpayer and voter to test the 
 legality of an act uniting highway districts 
 by the trustees of the township; Dunham v. 
 Fox, 100 la. 131, 69 N. W. 436. 
 
 The supreme court may issue writs of cer- 
 tiorari in all proper cases, and will do so 
 when the circumstances imperatively de- 
 mand that form of interposition, to correct 
 excesses of jurisdiction, and in furtherance 
 
 of justice. In re Chetwood, 165 U. S. 443, 
 17 Sup. Ct. 385, 41 L. Ed. 782. 
 
 To warrant a certiorari the act must be 
 plainly judicial and not executive or leg- 
 islative; People v. N. Y., 2 Hill (N. Y.) 14; 
 accordingly it was refused in case of a cor- 
 porate resolution appropriating land for a 
 public square; id; and of an order of a 
 board of health adjudging a question of nui- 
 sance ; 15 Wend. 255 ; 21 Barb. 656. 
 
 It is used also as an auxiliary process to 
 obtain a full return to other process, as 
 when, for example, the record of an inferior 
 court is brought before a superior court by 
 appeal, writ of error, or otber lawful mode, 
 and there is a manifest defect or sugges- 
 tion of diminution, to obtain a perfect tran- 
 script and all papers ; Stewart v. Ingle, 9 
 Wheat. (XL S.) 526, 6 L. Ed. 151; Cohlen v. 
 Knickerbacker, 2 Cow. (N. Y.) 38; Stewart 
 v. Court of County Com'rs, 82 Ala. 209, 2. 
 South. 270; Smick v. Opdycke, 12 N. J. L. 
 85; Colerick v. Hooper, 3 Ind. 316, 56 Am. 
 Dec. 505; State v. Reid, 18 N. C. 3S2, 28 
 Am. Dec. 572 ; Thatcher v. Miller, 11 Mass. 
 414; Scott v. Hall, 2 Munf. (Va.) 229; Frank- 
 lin Academy v. Hall, 16 B. Monr. (Ky.) 472 ; 
 Carter v. Douglass, 2 Ala. 499; Clements 
 v. Hahn, 1 Col. 490. It does not issue as a 
 matter of right on mere suggestion of de- 
 fects in the record, but the application must 
 be supported by proof ; State v. Orrick, 106 
 Mo. Ill, 17 S. W. 176, 329. 
 
 The office of the writs of certiorari and manda- 
 mus is often much the same. It is the practice of 
 the U. S. supreme court, upon a suggestion of any 
 defect in the transcript of the record sent up to 
 that court upon a writ of error, to allow a special 
 certiorari, requiring the court below to certify more 
 fully; Fowler v. Lindsey, 3 Dall. (U. S.) 411, 1 L. 
 Ed. 658; Barton v. Petit, 7 Cra. (U. S.) 288, 3 L. 
 Ed. 347; Stimpson v. R. Co., 3 How. (U. S.) 553, 
 11 L. Ed. 722; U. S. v. Adams, 9 Wall. (U. S.) 661, 
 19 Li. Ed. 808. Relief may also be had in the U. S. 
 Circuit Court of Appeals on allegation of diminu- 
 tion in the record sent up from the circuit court, 
 as provided by rule 18 ; Blanks v. Klein, 49 Fed. 1, 
 1 C. C. A. 254. The same result might also be ef- 
 fected by a writ of mandamus. The two remedies 
 are, when addressed to an inferior court of record, 
 from a superior court, requiring the return of a 
 record, much the same. But where diminution of 
 the record is suggested in the inferior court, and 
 the purpose is to obtain a more perfect record, and 
 not merely a more perfect copy or transcript, it is 
 believed that the writ of mandamus is the appro- 
 priate remedy. 
 
 In many of the states, the writ produces the 
 same result in proceedings given by statute, such 
 as the proceedings for obtaining damages under 
 the mill acts, highway acts, pauper laws, etc., as 
 the writ of error does when the proceedings are 
 according to the course of the common law. Where 
 the lower court is to be required to proceed in a 
 cause, a writ of procedendo or mandamus is the 
 proper remedy. 
 
 The writ is generally said to issue only 
 after final judgment of the inferior court or 
 tribunal whose proceedings are to be re- 
 viewed ; Patterson v. United States, 2 
 Wheat. (U. S.) 221, 4 L. Ed. 224 ; People v. 
 Railroad Com'rs, 160 N. Y. 202," 54 N. E. 
 697; Lynde v. Noble, 20 Johns. (N. Y.) 80;
 
 CERTIORARI 
 
 445 
 
 CERTIORARI 
 
 Wallace v. Jameson, 179 Pa. 94, 36 Atl. 145 ; 
 Case of Road from Bough Street, 2 S. & 
 R. 419; Vaughn v. Marshall, 1 Iloust. (Del.) 
 348 ; Stewart v. State, 98 Ga. 202, 25 S. E. 
 424; Meads v. Copper Mines, 125 Mich. 45G, 
 81 X. W. 615; People v. Lindsay, 1 Idaho, 
 401 ; State v. Valliant, 123 Mo. 524, 27 S. W. 
 379, 2S S. W. 5SG; State v. Gill. L37 Mo. 
 627, 39 S\ W. 81; Glennon v. Burton, 111 
 Til. 551, 33 X. E. 23; Gauld v. Board of 
 Sup'rs, 122 Cal. 18, 54 Pac. 272 ; Culver v. 
 Travis, 108 Mich. 640, 66 N. W. o7r> ; where 
 the reason for the rule is thus stated: "The 
 writ of certiorari is a writ of review. Its 
 office is to bring up for review final deter- 
 minations and adjudications of inferior tri- 
 bunals, boards or officers exercising judicial 
 functions, where there is no appeal, nor any 
 plain, speedy and adequate remedy. The 
 writ is necessarily founded on a final deter- 
 mination. Were the rule otherwise a writ 
 might issue at any step in the proceedings of 
 the inferior tribunal, although such tribunal 
 might, were the point presented, decide that 
 it had no jurisdiction in the matter submit- 
 ted to it. This would be the exercise of 
 original jurisdiction by the court issuing the 
 writ and not a review of the determination 
 of the inferior tribunal. The matter com- 
 plained of would be, not that the tribunal 
 had exceeded, but that it was about to ex- 
 ceed, its jurisdiction." As the writ relates 
 back to the first day of the term, it will not 
 issue to review a case not pending at that 
 time; .Womer v. R. Co., 37 W. Va. 2S7, 1G 
 S. E. 488. 
 
 The English rule is different in civil cases, 
 and the writ is usually issued before the 
 final determination ; 7 D. & 'R. 7G9; 13 L. 
 J. Q. B. 149 ; 8 Ont L. J. 277; 2 Ont. L. J. 
 N. S. 277 ; 3 U. C. Q. B. O. S. 149. In one 
 state at least it is held that the writ may 
 issue, in the case of municipal corporations, 
 before final decision ; State v. City Council 
 of Camden, 47 N. J. L. 64, 54 Am. Rep. 117. 
 
 Under the act of March 2, 1S33, provid- 
 ing for the removal by certiorari of suits 
 in state courts against revenue officers, the 
 writ from the United States circuit court 
 to a state court will stay all proceedings; 
 State v. Circuit Judge, 33 Wis. 127. And 
 under the removal act of 1875, if the state 
 court decides to retain jurisdiction in a 
 removable case, a certiorari may be resorted 
 to to obtain a transfer of the record ; U. S. R. 
 S. 1 Supp. 84. 
 
 It does not lie to enable the superior court 
 to revise a decision upon matters of fact : 
 People v. Board of Fire Com'rs, 100 N. Y. 
 82, 2 N. E. 613; Appeal of Yeager, 34 Pa. 
 176 ; Beach v. Mullin, 34 N. J. L. 343 ; Farni- 
 ington River Water Power Co. v. County 
 Com'rs, 112 Mass. 206; Lapan v. Cumber- 
 land County Com'rs, 65 Me. 1G0 ; Low v. R. 
 Co., 18 111. 324 ; Frederick v. Clark, 5 Wis. 
 191; Central Pac. R. Co. y. Placer County, 
 
 46 Cal. 6G7; Farmers' & Merchants' Bank v. 
 Board of Equalization, 97 Cal. 318, 32 Pac. 
 312; North & South St. K. I dlock. 
 
 SS Ga. 283, 14 S. E. 478 ; Herbert v. Curtis, 
 55 X. J. L. 87, 25 Atl. Whit ford. 
 
 54 Wis. 150, 11 X. W. TJ1: Shearous v 
 Morgan, n i G 
 
 Judge, 41 La. Ann. 179, 6 South. 18; noi 
 matters resting in the discretion of the judge 
 of the inferior court ; Inhabitants of New 
 Marlborough v. County Com'rs. 9 Mete 
 (Mass.) 423; Boston v. Morris. 'J. - , X. J. I.. 
 173; Brown v. Board of Sup'rs, 124 Cal 271. 
 57 Pac. 82; State v. Judge, 43 La. Ann. 
 825, 9 South. (539; People v. Board of Fire 
 Com'rs, 82 X. Y. 358; Hall v. Oyster, 168 
 Pa. 399, 31 Atl. 1007; Sunber- v. District 
 Court of Linn County, Gl la. 597. 16 X. W. 
 724; Huffaker v. Boring, 8 Ala. 87; M 
 of Saline County Subscription, 45 Mo. 52, 
 100 Am. Dee. 337; 3 El. & Bl. 529; 8 Ont 
 651, 12 Can. Sup. Ct. Ill; 2!» Nova Scotia 
 521; unless by special statute; Starr v. 
 Trustees of Village of Rochester, 6 Wend. 
 (X. Y.) 564; In re Hay ward, 10 Pick. (Mass.: 
 35S ; Independence v. Pompton, 9 N. J. L. 
 209 ; or where palpable injustice has been 
 done; Duggen v. McGruder. Walk. (Miss.) 
 112, 12 Am. Dec. 527 ; Fonda v. Canal Ap- 
 praisers, 1 Wend. (N. Y.) 288; Com. v. 
 Coombs, 2 Mass. 489; State v. Smith, 101 
 Mo. 174, 14 S. W. 108; Bostick v. Palmer, 
 79 Ga. 680, 4 S. E. 319; Lapan v. County 
 Com'rs, 65 Me. 160; Ex parte Schmidt. 24 
 S. C. 363. 
 
 It does not lie where the errors are formal 
 merely, and not substantial; 8 Ad. & E. 413 ; 
 Patrick v. McKernon. 5 How. (Miss.) 578; 
 Furbush v. Cunningham, 5G Me. 184; Her- 
 mann v. Butler, 59 111. 225 ; nor where sub- 
 stantial justice has been done though the 
 proceedings were informal ; Criswell v. 
 Richter, 13 Tex. 18; Knapp v. Hell< 
 Wis. 4G7; City of Charlestown v. Mid- 
 dlesex County Com'rs, 109 Mass. 270; Ily- 
 slop v. Finch, 99 111. 171 ; State v. Kemeu, 
 61 Wis. 494, 21 N. W. 530; nor where the 
 proceedings are not void on their face and 
 show no arbitrary action on the part of the 
 trial judge: Williams v. District Court. 45 
 La. Ann. 1295. 14 South. 57. 
 
 Under the statute authorizing all writs 
 not specifically provided for the federal 
 courts have power to issue writs of certio- 
 rari in proper cases; American Construction 
 Co. v. R. Co., 1 18 D. s. 372, 13 Sup. Ct L58, 
 37 L. Ed. 4SG; In re Tampa Suburban R. 
 Co., 168 U. S. 5S3, 18 Sup. Ct. 177, -V2 I 
 589. 
 
 Certiorari will not lie as a substitute for 
 an appeal from an interlocutory order of a 
 superior court; Guilford County v. Georgia 
 Co., 109 X. C. 310, 13 S. E. 861 ; nor to re- 
 view an appealable order ; In re McConnell, 
 74 Cal. 217, 15 Atl. 740. The evidence can- 
 not be reviewed upon certiorari; Com. v.
 
 CERTIORARI 
 
 446 
 
 CERTIORARI 
 
 Gillespie, 146 Pa. 546, 23 Atl. 393; nor rul- 
 ings on the admission of evidence ; Lord v. 
 Wirt, 96 Mich. 415, 56 N. W. 7. 
 
 The court may deal only with questions of 
 law and cannot say what the court should 
 have done if the facts had been different; 
 Beach v. Mullin, 34 N. J. L. 343 ; Inhabitants 
 of Plymouth v. Plymouth County Com'rs, 16 
 Gray (Mass.) 341; nor can it determine ques- 
 tions of fact depending on evidence arising 
 outside of the record; Hayford v. City of 
 Bangor, 102 Me. 340, 66 Atl. 731, 11 L. R. A. 
 (N. S.) 940 ; nor are such facts to be consid- 
 ered in determining the propriety of the 
 writ; U. S. Standard Voting Machine Co. v. 
 Hobson, 132 la. 38, 109 N. W. 458, 7 L. R. A. 
 (N. S.) 512, 119 Am. St. Rep. 539, 10 Ann. 
 Cas. 972. The evidence forms no part of the 
 record, and in the absence of anything in the 
 record to establish the contrary, it will be 
 presumed that the evidence was sufficient to 
 sustain the rinding ; De Rochebrune v. South- 
 erner, 12 Minn. 78 (Gil. 42) ; People v. Daw- 
 ell, 25 Mich. 251, 12 Am. Rep. 260 ; whatever 
 the evidence tended to show is treated as 
 proved; id. 
 
 Certiorari may issue in criminal cases in 
 aid of habeas corpus to review proceedings 
 before a commissioner on commitments; In 
 re Martin, 5 Blatchf. 303, Fed. Cas. No. 9,151 
 (but not to review his decision on the facts; 
 In re Stupp, 12 Blatchf. 501, Fed. Cas. No. 
 13,563) ; or to the circuit court to ascertain 
 from its proceedings whether that court has 
 exceeded its authority ; Ex parte Lange, 18 
 Wall. (U. S.) 163, 21 L. Ed. 872 (citing the 
 prior cases) ; Ex parte Virginia, 100 U. S. 
 343; 25 L. Ed. 676; State v. Johnson, 103 
 Wis. 625, 79 N. W. 1081, 51 L. R. A. 33. 
 
 A court of exclusively appellate jurisdic- 
 tion cannot issue a certiorari to pass over an 
 intermediate appellate court ; Carr v. Twee- 
 dy, Hempst 287, Fed. Cas. No. 2,440a. The 
 common law writ does not lie with respect 
 to proceedings subsequent to appeal or writ 
 of error ; U. S. v. Young, 94 U. S. 258, 24 L. 
 Ed. 153. 
 
 It is granted or refused in the discretion 
 of the superior court; Lees v. Childs, 17 
 Mass. 352; Huse v. Grimes, 2 N. H. 210; 
 People v. McCarthy, 102 N. Y. 642, 8 N. E. 
 85 ; State v. Blauvett, 34 N. J. L. 261 ; Free- 
 man v. Oldham's Lessee, 4 T. B. Monr. (Ky.) 
 420; Flourney v. Payne, 28 Ark. 87; West 
 River Bridge Co. v. Dix, 16 Vt 446; Liv- 
 ingston v. Livingston, 24 Ga. 379 ; L. R. 5 Q. 
 B. 466; Welch v. County Court, 29 W. Va. 
 63, 1 S. E. 337; Ex parte Hitz, 111 U. S. 
 766, 4 Sup. Ct. 698, 28 L. Ed. 592 ; Board of 
 Supervisors v. Magoon, 109 111. 142 ; and the 
 application must disclose a proper case upon 
 its face ; 8 Ad. & E. 43 ; Lees v. Childs, 17 
 Mass. 351; Cullen v. Lowery, 2 Harr. (Del.) 
 459; Willis v. Dun, Wright (Ohio) 130; 
 Hartsfield v. Jones, 49 N. C. 309; Redmond 
 v. Anderson, 18 Ark. 449 ; Russell v. Picker- 
 
 ing, 17 111. 31; Mays v. Lewis', 4 Tex. 1; 
 McMurray v. Milan, 2 Swan (Tenn.) 176. 
 
 As stated supra, the doctrine that certio- 
 rari will not lie where there is an appeal is 
 characterized as "the rule" to that effect 
 That this is too broad a generalization will 
 readily appear from an examination of the 
 numerous cases, which are collected in a very 
 full note on "Exceptions to the Rule" in 50 
 L. R. A. 787. The note is appended to two 
 cases in the same court, each decided by a 
 divided court, which will illustrate the diffi- 
 culty of the question. In one it was stated 
 as the general rule that certiorari will not 
 lie to correct mere errors of a tribunal hav- 
 ing jurisdiction, in the rightful exercise of 
 -that jurisdiction, where there is an appeal 
 by means of which those errors may be cor- 
 rected; State v. Shelton, 154 Mo. 670, 55 S. 
 W. 1008, 50 L. R. A. 798. In the other case 
 it was said that that statement of the law 
 was too broad, and that, to bar the writ, the 
 remedy by appeal must be adequate to meet 
 the necessities of the case and must be equal- 
 ly beneficial, speedy and sufficient; State v. 
 Guinotte, 156 Mo. 513, 57 S. W. 281, 50 L. R. 
 A. 787. It is doubtful if a general rule can 
 be formulated to apply to all cases, and, with 
 reference to any given state of the facts, the 
 authorities must be critically examined. It 
 may however be said that it should not issue 
 where there is another adequate remedy ; 
 People v. Board of Health, 140 N. Y. 1, 35 
 N. E. 320, 23 L. R. A. 481, 37 Am. St. Rep. 
 522; In re Randall, 11 Allen (Mass.) 472; 
 State v. Probate Court, 72 Minn. 434, 75 N. 
 W. 700 ; Oyster v. Bank, 107 la. 39. 77 N. W. 
 523; Ex parte Howard-Harrison Iron Co., 
 130 Ala. 185, 30 South. 400; In re Tampa 
 Suburban R. Co., 168 U. S. 583, 18 Sup. Ct 
 177, 42 L. Ed. 589 ; Watson v. City of Plain- 
 field, 60 N. J. L. 260, 37 Atl. 615; Kern's 
 Adm'r v. Foster, 16 Ohio, 274; 9 Ad. & El. 
 540 ; 33 N. Brunsw. 80 ; 20 Nova Scotia 283 ; 
 17 Quebec Super. Ct 383. And though as 
 stated by Bacon (supra) it may issue out of 
 chancery, it cannot be used for the review 
 of decrees in equity alleged to be void for 
 want of power; In re Tampa Suburban R. 
 Co., 168 XL S. 583, 18 Sup. Ct. 177, 42 L. Ed. 
 5S9 ; In re Haney, 14 Wis. 417 ; Gilliland v. 
 Sellers' Adm'rs, 2 Ohio St. 223; "nor can 
 certiorari be made to operate as an injunc- 
 tion, and restrain a tribunal from acting be- 
 yond its jurisdiction, however well grounded 
 may be the apprehension in that respect;" 
 Glennon v. Burton, 144 111. 551, 33 N. E. 23. 
 
 The common law remedy has been success- 
 fully invoked where statutes provided that 
 the decision of the inferior tribunal should be 
 final and conclusive, upon the theory that it 
 is an inherent part of the judicial power of 
 the superior court and cannot be taken away 
 without express negative words; Murfree v. 
 Leeper, 1 Overt (Tenn.) ; Ritter v. Kunkle, 
 39 N. J. L. 259 ; and even where the statute
 
 CERTIORARI 
 
 447 
 
 CERTIORARI 
 
 directed that no certiorari should issue to re- 
 move proceedings had in pursuance of it, the 
 writ may be used to ascertain whether the 
 proceedings have been invoked in pretence 
 of the statutory authority and are therefore 
 not in pursuance, but in derogation, of it; 
 Ackerman v. Taylor, S N. J. L. 305; id., 9 
 N. J. L. 65. Possibly (he New York Court of 
 Appeals may have come near to the formula- 
 tion of a general rule in saying that a com- 
 mon law certiorari can only be availed of to 
 review when there is no other adequate rem- 
 edy; in other cases it will be confined to its 
 original and appropriate office, to enable a 
 court of review to determine whether the in- 
 ferior tribunal proceeded within its jurisdic- 
 tion ; People v. Betts, 55 N. Y. 000, which is 
 cited in Harris v. Barber, 129 U. S. 371, 9 
 Sup. Ct. 314, 32 L. Ed. G!>7, and the language 
 of which is quoted in People v. Feitner, 51 
 App. Div. 196, 61 N. Y. Supp. 675. The last 
 case was a certiorari to the secretary of 
 state for granting a charter for a name 
 claimed to be already in use. The court 
 quashed the writ, saying that the existing 
 company had a remedy in equity, but if the 
 charter had been refused there might be no 
 other remedy. 
 
 The judgment is either that the proceed- 
 ings below be quashed or that they be af- 
 firmed ; Har. Certiorari 38, 49; Marshall v. 
 Hill, 8 Yerg. (Tenn.) 102 ; Kincaid v. Smith, 
 id. 218; Com. v. Turnpike Corporation, 5 
 Mass. 423; Hall v. State, 12 G. & J. (Md.) 
 329 ; Weigand v. Malatesta, 6 Coldw. (Tenn.) 
 362; see McAllilley v. Horton, 75 Ala. 491; 
 Hamilton v. Harwood, 113 111. 154; Taylor 
 v. Gay, 20 Ga. 77; Bandlow v. Thieme, 53 
 Wis. 57, 9 N. W. 920; cither wholly or in 
 part; Com. v. Turnpike Corp. 5 Mass. 420; 
 NIchol v. Patterson, 4 Ohio 200; Bronson v. 
 Mann, 13 Johns. (N. Y.) 461. See, also, Beck 
 v. Knabb, 1 Overt. (Tenn.) 5S ; Henry v. Her- 
 itage, 3 N. C. 38. The costs are discretion- 
 ary with the court; Myers v. Town of Pow- 
 nal, 16 Vt 426 ; Chance v. Haley, 6 Ind. 367 ; 
 but at common law neither party recovers 
 costs; Low v. Rogers, 8 Johns. (N. Y.) 321; 
 Com. v. Ellis, 11 Mass. 465 ; State v. Leavitt, 
 
 3 N. H. 44 ; Nichol v. Patterson, 4 Ohio 200 ; 
 and the matter is regulated by statute in 
 some states ; Atkinson v. Crossland, 4 Watts 
 (Pa.) 451; Hinchman v. Cook, 20 N. J. L. 
 271. See Mandamus ; Procedendo. Consult 
 
 4 Bla. Com. 262, 265. 
 
 By the act of congress of March 3, 1891, 
 establishing circuit courts of appeal, § 6, it 
 is provided that in any case in which the 
 decision of that court is final a certiorari 
 may issue from the supreme court to bring 
 up the record to that court for "its review 
 and determination with the same power and 
 authority in the case as if it had been car- 
 ried by appeal or writ of error to the Su- 
 preme Court" 1 U. S. Comp. Stat. 550. At 
 the first term of the supreme court after the 
 
 passage of this act, upon an application for 
 >>rari, it was said that "it is evident 
 that it is solely questions of gravity and im- 
 portance" that should be certified up to the 
 supreme court either by the action of the cir- 
 cuit courts of appeals or by requirement of 
 the supreme court upon cert In re 
 
 Lau Ow Bew, ill V. s. 583, 12 Sup. I 
 .35 L. Ed. 868, where although it was said 
 the jurisdiction should be exercised sparing- 
 ly and with great caution, the writ w 
 sued to determine the effect of the • 
 exclusion acts. The rule thus early laid 
 down was reiterated in several BUb& 
 cases illustrating what the court considered 
 cases of sufficient "gravity and importance." 
 
 "While the power is coextensive with all 
 possible necessities and sufficient to secure to 
 this court a final control over the litigation 
 in all the courts of appeal, it is a power 
 which will be sparingly exercised, and only 
 where the circumstances of the case satisfy 
 us | that the importance of the question in- 
 volved, the necessity of avoiding conflict be- 
 tween two or more courts of appeal, or be- 
 tween courts of appeal and the courts of a 
 state, or some matter affecting the interests 
 of the nation in its internal or external re- 
 lations demands such exercise." Forsyth v. 
 Hammond, 166 U. S. 506, 17 Sup. Ct 665. 41 
 L. Ed. 1095. 
 
 It was held that a case which could other- 
 wise be finally determined by that court 
 may, under the statute, be removed from the 
 circuit court of appeals on certiorari at any 
 time during its pendency there; but where 
 there is merely private interest involved it 
 will not be done where there has been no 
 final judgment; id., citing to this express 
 point Chicago & N. W. Ry. Co. v. Osborne, 
 146 U. S. 354, 13 Sup. Ct. 281, 36 L. Ed. 
 1002, which is sometimes incorrectly referred 
 to as holding that the Supreme Court has no 
 power to remove by certiorari before final 
 judgment While the supreme court may re- 
 quire a case to be certified up at any stage, 
 particularly when the question of jurisdic- 
 tion is involved, it should not be done to re- 
 view an interlocutory decree "unless it is 
 necessary to prevent extraordinary inconven- 
 ience and embarrassment in the conduct of 
 the cause"; American Const. Co. v. Ry. Co., 
 148 U. S. 372, 13 Sup. Ct. 158, 37 L. Ed. 486. 
 The writ may issue after the mandate has 
 gone down from the circuit court of ap] 
 The Conqueror. 186 U. S. 110, 17 Sup. Ct 
 510, 41 L. Ed. 937. It may issue to an infe- 
 rior state court when the highest state court 
 has refused jurisdiction ; Western Unioi 
 egraph Co. v. Hughes, 203 U. S. 505, 27 Sup. 
 Ct. 162, 51 L. Ed. 294. 
 
 The decisions Upon applications for this 
 writ indicate the construction which it has 
 placed upon the phrase used by it in the first 
 case, "questions of gravity and importance." 
 These words are evidently applied only to
 
 CERTIORARI 
 
 448 
 
 CERTIORARI 
 
 cases of public and not private interest and 
 importance. For example, the writ was is- 
 sued to settle the construction of a treaty 
 and immigration laws ; The Three Friends, 
 166 U. S. 1, 17 Sup. Ct. 495, 41 L. Ed. 897; 
 to review a case of habeas corpus finally de- 
 termined by the circuit court of appeals ; 
 Lau Ow Bew v. U. S., 144 U. S. 47, 12 Sup. 
 Ct. 517, 36 L. Ed. 340 ; to settle questions of 
 jurisdiction of the bankruptcy court; Muel- 
 ler v. Nugent, 184 U. S. 1, 22 Sup. Ct. 269, 
 46 L. Ed. 405 ; Louisville Trust Co. v. Com- 
 ingor, 184 U. S. 18, 22 Sup. Ct. 293, 46 L. Ed. 
 413 ; to secure a uniform construction of the 
 bankruptcy act; Holden v. Stratton, 191 U. 
 S. 115, 24 Sup. Ct. 45, 48 L. Ed. 116; or of 
 a tariff act; The Conqueror, 166 U. S. 110, 
 17 Sup. Ct. 510, 41 L. Ed. 937 ; to determine 
 whether a judge who made an order was 
 disqualified to sit in the circuit court of ap- 
 peals on the review of it; American Const 
 Co. v. Ry. Co., 148 U. S. 372, 13 Sup. Ct. 158, 
 37 L. Ed. 486 ; to prevent conflict of decision 
 between federal and state courts within the 
 same territorial jurisdiction ; Forsyth v. Ham- 
 mond, 166 U. S. 506, 17 Sup. Ct. 665, 41 L. 
 Ed. 1095 ; to avoid a possible question of ju- 
 risdiction upon a writ of error ; Montana 
 Min. Co. v. Min. Co., 204 U. S. 204, 27 Sup. 
 Ct. 254, 51 L. Ed. 444 ; and when there have 
 been conflicting decisions of different circuit 
 courts of appeals; Expanded Metal Co. v. 
 Bradford, 214 U. S. 366, 29 Sup. Ct 652, 53 
 L. Ed. 1034. 
 
 i On the other hand the writ has been re- 
 fused where the court of appeals has revers- 
 ed proceedings putting a railroad company in 
 the hands of a receiver ; American Const. 
 Co. v. Ry. Co., 148 tJ. S. 372, 13 Sup. Ct. 158, 
 37 L. Ed. 486; where questions of the state 
 law of res judicata and of master and serv- 
 ant were considered not of sufficient "gravity 
 and general importance" ; In re Woods, 143 
 U. S. 202, 12 Sup. Ct 417, 36 L. Ed. 125 ; in 
 a case of where the circuit court of appeals 
 was found to have no jurisdiction, and had 
 rendered no decision except to certify that 
 question ; Good Shot v. U. S., 179 TJ. S. 87, 
 21 Sup. Ct. 33,, 45 L. Ed. 101; or where the 
 issue is a mere technicality and the essential 
 rights of the parties are not involved ; Smith 
 T. Vulcan Iron Works, 165 U. S. 518, 17 Sup. 
 Ct. 407, 41 L. Ed. S10. 
 
 While under section 6 of the Circuit Court 
 of Appeals Act certiorari can only be issued 
 when a writ of error cannot lie, it will not 
 be issued merely because the writ of error 
 will not lie, but only where the case is one 
 of gravity, or where there is conflict between 
 decisions of state and federal courts or be- 
 tween federal courts of different circuits, or 
 something affecting the relations of this na- 
 tion with foreign nations or of general in- 
 terest to the public; Fields v. U. S., 205 U. 
 S. 292, 27 Sup. Ct. 543, 51 L. Ed. 807. 
 
 A certiorari may be allowed when a case 
 
 has been improperly brought up on a writ of 
 error and the record filed in the latter may 
 be treated as a proper return ; Security 
 Trust Co. v. Dent, 187 U. S. 237, 23 Sup. Ct 
 61, 47 L. Ed. 158. When a case is removed 
 to it under the act of 1891, the entire record 
 is before the supreme court, which has power 
 to decide the case; Lutcher & Moore Lum- 
 ber Co. v. Knight, 217 TJ. S. 257, 30 Sup. Ct 
 505, 54 L. Ed. 757. 
 
 See United States Courts ; Bill of Cer- 
 tiorari. 
 
 CERTIORARI FACIAS. Cause to be cer- 
 tified. The command of a writ of certiorari. 
 
 CERVISARII (cervisia, ale). Among the 
 Saxons, tenants who were bound to supply 
 drink for their lord's table. Cowell. 
 
 CERVISIA. Ale. Cervisarius. An ale- 
 brewer ; an ale-house keeper. Cowell. 
 
 CESI0NARI0. In Spanish Law. An as- 
 signee. White, New Recop. 304. 
 
 CESSAVIT PER BIENNIUM (Lat he has 
 ceased for two years). An obsolete writ, 
 which could formerly have been sued out 
 when the defendant had for two years ceased 
 or neglected to perform such service or to 
 pay such rent as he was bound to do by his 
 tenure, and had not upon his lands sufficient 
 goods or chattels to be distrained. Fltzh. 
 N. B. 208. It also lay where a religious 
 house held lands on condition of performing 
 certain spiritual services which it failed to 
 do. 3 Bla. Com. 232. 
 
 CESSET EXECUTI0 (Lat let execution 
 stay). The formal order for a stay of exe- 
 cution, when proceedings in court were con- 
 ducted in Latin. See Execution. 
 
 CESSET PROCESSUS (Lat. let process 
 stay). The formal order for a stay of pro- 
 cess or proceedings, when the proceedings in 
 court were conducted in Latin. See 2 Dougl. 
 627; 11 Mod. 231. 
 
 CESSI0 BONO RUM (Lat. a transfer of 
 property). In Civil Law. An assignment of 
 his property by a debtor for the benefit of 
 his creditors. 
 
 Such an assignment discharged the debtor 
 to the extent of the property ceded only, but 
 exempted him from imprisonment. Dig. 
 2. 4. 25; 48. 19. 1; Nov. 4. 3. See La. Civ. 
 Code 2166; Golis v. His Creditors, 2 Mart 
 N. S. (La.) 108; Richards v. His Creditors, 
 5 Mart N. S. (La.) 299; Sturges v. Crownin- 
 shield, 4 Wheat. (U. S.) 122, 4 L. Ed. 529 ; 1 
 Kent 422. 
 
 CESSION (Lat cessio, a transfer). In 
 Civil Law. An assignment. The act by 
 which a party transfers property to anoth- 
 er. See Cessio Bonorum. 
 
 In Ecclesiastical Law. A surrender. When 
 an ecclesiastic is created bishop, or when 
 a parson takes another benefice, without dis-
 
 CESSION 
 
 449 
 
 CESTUI QUE TRUST 
 
 pensation, the first benefice becomes void by 
 a legal cession or surrender. Cowell. 
 
 In Government Law. The transfer of land 
 by one government to another. 
 
 France ceded Louisiana to the United 
 States, by the treaty of Paris, of April 30, 
 1803 ; Spain made a cession of East and 
 West Florida, by the treaty of Feb. 22, 1819. 
 Cessions have been severally made to the 
 general government of a part of their terri- 
 tory by New York, Virginia, Massachusetts, 
 Connecticut, South Carolina, North Carolina, 
 and Georgia. See Gordon, Dig. art. 2236- 
 2250. 
 
 It is the usage of civilized nations, when 
 territory is ceded, to stipulate for the prop- 
 erty rights of its inhabitants ; U. S. v. 
 Chaves, 159 U. S. 452, 16 Sup. Ct. 57, 40 L. 
 Ed. 215. 
 
 In case of a cession to the United States, 
 the laws of the ceded country inconsistent 
 with the constitution and laws of the Unit- 
 ed States, so far as applicable, would cease to 
 be of obligatory force; but otherwise the 
 municipal laws of the foreign country con- 
 tinue; Municipality of Ponce v. Church, 210 
 U. S. 310, 28 Sup. Ct 737, 52 L. Ed. 106S. 
 
 Annexation is an act of state, and any ob- 
 ligation assumed under a treaty to that ef- 
 fect, either to the ceding sovereign or to in- 
 dividuals, is not one which municipal courts 
 are authorized to enforce ; [1899] A. C. 572. 
 
 CESTUI QUE TRUST. He for whose ben- 
 efit another person is seised of lands or 
 tenements or is possessed of personal prop- 
 erty. 
 
 He who has a right to a beneficial interest 
 In and out of an estate the legal title to 
 which is vested in another. 2 Wash. R. P. 
 ♦163. 
 
 He may be said to be the equitable owner ; 
 Will. R. P. 188; 1 Spence, Eq. Jur. 497; 
 Inhabitants of Orleans v. Inhabitants of 
 Chatham, 2 Pick. (Mass.) 29; is entitled, 
 therefore, to the rents and profits; may 
 transfer his interest, subject to the provi- 
 sions of the instrument creating the trust; 
 1 Spence, Eq. Jur. 507 ; 2 Washb. R. P. 195; 
 and may ordinarily mortgage his interest; 
 Perrine v. Newell, 49 N. J. Eq. 57, 23 Atl. 
 492 ; may defend his title in the name of 
 his trustee; 1 Cruise, Dig. tit. 12, c. 4, § 4 ; 
 but has no legal title to the estate, as he is 
 merely a tenant at will if he occupies the 
 estate; 2 Yes. Sen. Ch. 472; 16 C. B. 652; 
 1 Washb. R. P. 88; and may be removed 
 from possession in an action of ejectment by 
 his own trustee; Lew. Trust. 8th ed. *677; 
 Hill, Trust. 274; Mordecai v. Parker, 14 N. 
 C. 425 ; Russell v. Lewis, 2 Pick. (Mass.) 508 ; 
 he cannot sue for damages to trust lands 
 unless the trustee refuses to protect the 
 rights of the beneficiary ; Lindheim v. R. Co., 
 6S Hun 122. 22 N. Y. Supp. 6S5. Where the 
 trustee neglects to defend the legal title to 
 trust property, the beneficiary may sue to 
 Bouv.— 29 
 
 remove a cloud on the title; President, etc., 
 of Bowdoin College v. Merritt, 54 Fed. 55. 
 See Trust; Beneficiary; Spendthrift 
 Trust. 
 
 CESTUI QUE USE. He for whose benefit 
 land is held by another person. 
 
 lie who has a right to take the profits of 
 lands of which another has the legal title 
 and possession, together with the duty of 
 defending the same and to direct the mak- 
 ing estates thereof; Tudor, Lead. 
 2 Bla. Com. 330. See 2 Washb. R. P. 95; 
 Use. 
 
 CESTUI QUE VIE. He whose life is the 
 measure of the duration of an estate. 1 
 Washb. R. P. 88. 
 
 CHAFEWAX. An officer in chancery who 
 fits the wax for sealing to the writs, com- 
 missions, and other instruments there made 
 to be issued out. He is probably so called 
 because he warms (chaufe) the wax. 
 
 CHAFFERS. Anciently signified wares 
 and merchandise ; hence the word chaffer- 
 ing, which is yet used for buying and selling, 
 or beating down the price of an article. The 
 word is used in stat 3 Edw. III. c. 4. 
 
 CHALDRON. A measure of capacity, 
 equal to fifty-eight and two-thirds cubic feet, 
 nearly. Cowell. 
 
 CHALLENGE. A request by one person to 
 another to fight a duel. No particular form 
 of words is necessary to constitute a chal- 
 lenge, and it may be oral or written; State 
 v. Perkins, 6 Blackf. (Ind.) 20; Ivey v. State, 
 12 Ala. 276; State v. Strickland, 2 Nott & 
 McC. (S. C.) 181; Com. v. Pope, 3 Dana (Ky.) 
 418. Sending a challenge is a high ol 
 at common law, and indictable as tending 
 to a breach of the peace ; Hawk. PI. Cr. b. 
 1, c. 3, § 3 ; Com. v. Tibbs, 1 Dana (Ky.) 52 t ; 
 State v. Gibbons, 4 N. J. L. 40; State v. Du- 
 pont, 2 McCord (S. C.) 334 ; State v. Taylor, 
 1 Const. (S. C.) 107; State v. Farrier, 8 N. 
 C. 487; State v. Perkins, 6 Blackf. (Ind.) 
 20; Com. v. Lambert, 9 Leigh (Va.) 603. He 
 who carries a challenge is also punishable 
 by indictment; Clark, Cr. L. 340; U. S. v. 
 Shackelford, 3 Cra. C. C. 17S, Fed. Cas. No. 
 1G,2G0. In most of the states, this barbarous 
 practice is punishable by special laws. 2 
 Bish. Cr. Law, § 312. And in a large num- 
 ber of them by their constitutions the giving, 
 accepting, or knowingly carrying a chal- 
 lenge, deprives the party of the right to hold 
 any office of honor or profit in the common- 
 wealth. 
 
 In most of the civilized nations, challeng- 
 ing another to fi^bt is a crime, as calculated 
 to destroy the public peace ; and those who 
 partake in the offence are generally liable to 
 punishment. In Spain, it is punished by loss 
 of offices, rents, and honors received from 
 the king, and the delinquent is incapable to 
 hold them in future; Aso & M. Inst. b. i'. t.
 
 CHALLENGE 
 
 450 
 
 CHALLENGE 
 
 19, c. 2, § 6. See, generally, Joy, Chall. ; 
 1 Russ. Cr. 275 ; 2 Bish. Cr. Law, chap. xv. ; 
 Com. v. Hart, 6 J. J. Marsh. (Ky.) 120 ; State 
 v. Taylor, 1 Const. (S. C.) 107 ; In re Leigh, 
 1 Munf. (Va.) 468. 
 
 In Practice. An exception to the jurors 
 who have been arrayed to pass upon a cause 
 on its trial. See 2 Poll. & Maitl. G19, 646. 
 
 An exception to those who have been re- 
 turned as jurors. Co. Litt. 155 o. 
 
 The most satisfactory derivation of the word is 
 that adopted by Webster and Crabb, from call, 
 challenge implying a calling off. The word is also 
 used to denote exceptions taken to a judge's capac- 
 ity on account of interest ; Bank of North America 
 v. Fitzsimons, 2 Binn. (Pa.) 454 ; Pearce v. Affleck, 
 4 id. 349; and to the sheriff for favor as well as 
 affinity ; Co. Litt. 158 a; Munshower v. Patton, 10 
 S. & R. (Pa.) 336, 13 Am. Dec. 678. The right is not 
 allowed to enable the prisoner to select such jurors 
 as he may wish, but to select just and impartial 
 ones ; State v. Jones, 97 N. C. 469, 1 S. B. 680. 
 
 Challenges are of the following classes: — 
 
 To the array. Those which apply to all 
 the jurors as arrayed or set in order by the 
 officer upon the panel. Such a challenge is, 
 in general, founded upon some error or mani- 
 fest partiality committed in obtaining the 
 panel, and which, from its nature, applies 
 to all the jurors so obtained. These are not 
 allowed in the United States generally ; U. 
 S. v. Reed, 2 Blatchf. 435, Fed. Cas. No. 16,- 
 134; Thomas v. State, 5 How. (Miss.) 20; 
 the same end being attained by a motion 
 addressed to the court, but are in some 
 states ; Bowman v. State, 41 Tex. 417 ; Boles 
 v. State, 24 Miss. 445 ; Quinebaug Bank v. 
 Tarbox, 20 Conn. 510; Peck v. Freeholders 
 of Essex County, 21 N. J. L. 656 ; Pringle v. 
 Huse, 1 Cow. (N. Y.) 432; Cowgill v. Wood- 
 en, 2 Blackf. (Ind.) 332 ; Rolland v. Com., 82 
 Pa. 306, 22 Am. Rep. 758. The challenge 
 must be based upon objection to all the jurors 
 composing the panel ; Clears v. Stanley, 34 
 111. App. 338. Mere irregularity in drawing 
 a jury is not sufficient cause to sustain a 
 challenge to the array ; Nealon v. People, 39 
 111. App. 481 ; nor is the fact that a chal- 
 lenge to the array has been sustained for bias 
 and prejudice of the officer summoning them 
 and few of the same jurors are on the second 
 venire; People v. Vincent, 95 Cal. 425, 30 
 Pac. 581 ; nor is the fact that one of the men 
 named on the special venire is dead and an- 
 other removed from the county ; State v. 
 Whitt, 113 N. C. 716, 18 S. E. 715; Smith v. 
 Smith, 52 N. J. L. 207, 19 Atl. 255. It was 
 a good ground of challenge to the array that 
 no persons of African descent were selected 
 as jurors but all such were excluded because 
 of their race and color, on affidavit of the 
 prisoner to that effect, no evidence having 
 been adduced pro or con; Weal v. Delaware, 
 103 U. S. 370, 26 L. Ed. 567. 
 
 For cause. Those for which some reason 
 is assigned. 
 
 These may be of various kinds, unlimited 
 in number, may be to the array or to the 
 
 poll, and depend for their allowance upon 
 the existence and character of the reason 
 assigned. 
 
 To the favor. Those challenges to the poll 
 for cause which are founded upon reasonable 
 grounds to suspect that the juror will act 
 under some undue influence or prejudice, 
 though the cause be not so evident as to au- 
 thorize a principal challenge ; Co. Litt. 147 
 a, 157 a; Bacon, Abr. Juries, E, 5 ; Shoef- 
 fler v. State, 3 Wis. 823. Such challenges are 
 at common law decided by triors, and not by 
 the court. See Tbioes; Cancemi v. People, 
 16 N. Y. 501 ; Mann v. Glover, 14 N. J. L. 195. 
 But see Milan v. State, 24 Ark. 346 ; Costigan 
 v. Cuyler, 21 N. Y. 134; Weston v. People, 
 6 Hun (N. Y.) 140. 
 
 Peremptory. Those made without assign- 
 ing any reason, and which the court must 
 allow. The number of these in trials for 
 felonies was, at common law, thirty-five ; 4 
 Bla.- Com. 354 ; but, by statute, has been 
 reduced to twenty in most states, and is al- 
 lowed in criminal cases only when the of- 
 fence is capital ; Thorn. Juries 119 ; U. S. 
 v. Cottingham, 2 Blatchf. 470, Fed. Cas. No. 
 14,S72; Hayden v. Com., 10 B. Monr. (Ky.) 
 125; Fouts v. State, 8 Ohio St. 98; see 
 Schumaker v. State, 5 Wis. 324; State v. 
 Cadwell, 46 N. C. 289 ; Todd v. State, 85 Ala. 
 339, 5 South. 278. The prosecuting officer 
 may exercise his right of peremptory chal- 
 lenge of a juror at any time previous to the 
 acceptance of the jury by the defendant ; 
 State v. Haines, 36 S. C. 504, 15 S. E. 555; 
 in civil cases the right is not allowed at all ; 
 9 Exch. 472 ; 2 F. & F. 137 ; U. S. v. Cotting- 
 ham, 2 Blatchf. 470, Fed. Cas. No. 14,872; 
 or, if allowed, only to a very limited extent; 
 How v. Canal Co., 5 Harr. (Del.) 245 ; Cleve- 
 land, P. & A. R. Co. v. Stanley, 7 Ohio St 
 155; Waterford & W. Turnpike v. People, 9 
 Barb. (N. Y.) 161; Quinebaug Bank v. Tar- 
 box, 20 Conn. 510 ; Wyatt v. Noble, 8 Blackf. 
 (Ind.) 507 ; Lewis v. Detrich, 3 la. 216. Un- 
 less given by statute no right exists ; Brown 
 v. R. Co., 86 Ala. 206, 5 South. 195. The rule 
 that a juror shall be accepted or challenged 
 and sworn as soon as his examination is com- 
 pleted is not objectionable as embarrassing 
 the exercise of the right of peremptory chal- 
 lenge ; St. Clair v. U. S., 154 U. S. 134, 14 Sup. 
 Ct. 1002, 38 L. Ed. 936. In the federal courts 
 in trials for treason or capital cases, the ac- 
 cused has twenty and the United States five 
 peremptory challenges ; U. S. R. S. § 819. 
 The act granting peremptory.challenges to the 
 government in criminal cases has not taken 
 away the right to conditional or qualified 
 challenges when permitted in a state, or 
 where it has been adopted by a federal court 
 as a rule or by special order. The exercise 
 of the right is under the supervision of the 
 court, which should not permit it to be used 
 unreasonably or so as to prejudice the de- 
 fendant It is not an unreasonable exercise
 
 CHALLENGE 
 
 4.11 
 
 CHALLENGE 
 
 of the privilege where, notwithstanding its 
 exercise, neither the government nor the de- 
 fendant had exhausted all their peremptory 
 challenges; Sawyer v. U. S., 202 U. S. 150, 
 26 Sup. Ct. 575, 50 L. Ed. 972. 
 
 The allowance of peremptory challenges 
 in excess of the statutory provision is not 
 ground for reversal, where no prejudice to 
 the opposite party appears; Stevens v. It. 
 Co., 2G R. I. 90, 58 AM. 492, 66 L. E. A. 465. 
 The number of peremptory challenges allow- 
 ed varies much in the different states. See 
 12 A. & B. Encyc. 346, 347, n. 3, for state 
 statutes on the subject. 
 
 To the poll. Those made separately to 
 each juror to whom they apply. Distinguish- 
 ed from those to the array. 
 
 Principal. Th< ■• made for a cause which 
 when substantiated is of itself sufficient ev- 
 idence of bias in favor of or against the 
 party challenging. Co. Litt. 15G b. See 3 
 Bla. Com. 30.3 ; 4 id. 353. They may be ei- 
 ther to the array or to the poll ; Co. Litt. 
 156 a, o. 
 
 The importance of the distinction between prin- 
 cipal challenges and those to the favor is found in 
 the case of challenges to the array or of challenges 
 to the poll for favor or partiality. All other chal- 
 lenges to the poll must, it seems, be principal. The 
 distinctions between the various classes of chal- 
 lenges are of little value in modern practice, as the 
 court generally determine the qualifications of a 
 Juror upon suggestion of the cause for challenge, 
 and examination of the juror upon oath when nec- 
 essary. See Triors. 
 
 The causes for challenge are said to be 
 either propter honoris respectum (from re- 
 gard to rank), which do not exist in the Unit- 
 ed States ; propter defectum (on account of 
 some defect), from personal objections, as 
 alienage, infancy, lack of statutory require- 
 ments; propter affectum (on account of par- 
 tiality), from some bias or partiality either 
 actually shown to exist or presumed from 
 circumstances; propter delictum (on account 
 of crime), including cases of legal incom- 
 petency on the ground of infamy; Co. Litt 
 155 b et scq. 
 
 These causes include, amongst others, 
 alienage; Hollingsworth v. Duane, Wall. C. 
 C. 147, Fed. Cas. No. 6,618 ; but see Queen v. 
 Hepburn, 2 Cra. 3, Fed. Cas. No. 11,503 : in- 
 capacity resulting from age, lack of statuto- 
 ry qualifications; Montague v. Com., 10 
 Gratt. (Va.) 767 ; see State v. Garig, 43 La. 
 Ann. 365; partiality arising from near rela^ 
 tionship; March v. K. Co.. 19 X. IT. .".72; Hals- 
 baugh v. Frazer, 19 Pa. 95 ; Jaques v. Com., 
 10 Gratt. (Va.) 090; State v. Terry, 44 N. C. 
 330; Hardy v. Sprowle, 32 Me. 310; Ouinc- 
 haug Bank v. Leavens, 20 Conn. 87, 50 Am. 
 Dec. 272; Paddock v. Wells, 2 Barb. Ch. (N. 
 Y.) 331; Trullinger v. Webb, 3 Iud. 19S; 
 Moody v. Griffin,. 65 Ga. 304; see State v. 
 Walton, 74 Mo. 270; Wlrlbach's Ex'r v. 
 Bank. 97 Pa. 543, .'19 Am. Rep. 821 ; an inter- 
 est in the result of the trial ; Fleming v. 
 State, 11 Iud. 234; Page v. R. Co., 21 N. II. 
 438; Beck v. Freeholders, 21 X. J. L. 650; 
 
 Houston & T. C. Ry. Co. v. Terrell, 09 Tex. 
 
 650, 7 S. W. 070; but it should be a ■:. 
 
 pecuniary interest; Phillips . 
 
 L05; conscientious ■• as to finding a 
 
 verdict of conviction in a capital case; ' . B. 
 
 v. Wilson, 1 Baldw. 7s. Fed I 
 
 White v. State, 10 Tex. 206; B; 
 
 . ! 15, 67 Am. D 
 ner, 2 CaL 257; Williams v. s 153; 
 
 Lewis v. State, 9 Smedes & M. (W 
 Martin v. State, 16 Ohio :;<:i. .. Ma- 
 
 jors, <J5 Cal. 148, 3 Pac. 597, 52 Ana. 
 295; Kennedy v. State, 19 Tex. App. 
 see Gates v. People, 14 111. 4:::;; Coin. v. Web- 
 ster, 5 rush. (Mass.) 295, -".2 Am. Dec. 711; 
 membership of societies, under some circum- 
 stances; 13 Q. B. 815; People v. Be: 
 Cal. 347; Com. v. Livermore, 4 Gray (Mass.) 
 IS; citizenship in a municipality inter 
 in the case; Cramer v. Burlington, 12 la. 315 ; 
 Fulweiler v. St. Louis, 61 Mo. 479; Gibson 
 v. Wyandotte, 20 Kan. 150; Goshen v. Eng 
 land, 119 Ind. 30S, 21 X. E. 977, 5 L. B. A. 
 253; but see Kendall v. Albia, 7:; la. 211. 
 34 N. W. 833 ; acting as an employ^ of one of 
 the parties: Louisville R. Co. v. Mask, 04 
 Miss. 738, 2 South. 300; Gunter v. Mfg. Co., 
 18 S. C. 203, Li Am. Rep. 57:: ; Central 
 v. Mitchell, 03 Ga. 173; bias indicated by 
 ations of wishes or opinions as to the 
 result of the trial; State v. Spencer, 21 X. J. 
 L. 196; Busick v. State, 19 Ohio 198; Blake 
 v. Millspaugh, 1 Johns. (X. V.i 316; I 
 v. Walker, 00 111. 452; Winuesheik Ins. Co. 
 v. Schueller, id. 405; O'Mara v. Com., 75 Pa, 
 424; Scranton v. Stewart, 52 ind. OS; or 
 opinions formed or expressed as to the guilt 
 or innocence of one accused of crime ; Meyer 
 v. State, 19 Ark. 150; Mai 
 Miss. 627; Sutton v. Albatross, 2 Wall. Jr. 
 333, Fed. Cas. No. 13,045; Moses v. State. 
 10 Humphr. (Tenn.) 450; Xeely v. Peoi 
 111. 085; Trimble v. State, 2 G. Greene i la.) 
 404; Busick v. State, 19 Ohio 19b; Monroe 
 v. State, 5 Ga. S5 ; see State v. Box, 25 X. J. 
 L. 566; Baker v. State, 15 Ga. 498; Rice v. 
 State. 7 Ind. 332; Van Blaricum v. People, 10 
 III. 364, 03 Am. Dec. 316; People v. McCauley, 
 1 Cal. 379 ; Com. v. Webster, 5 Cush. I 
 295, 52 Am. Dec. 711; Smith v. Com.. 7 Gratt 
 (Va.) 593; Baldwin v. State. 12 Mo. 223; 
 State v. Potter. IS Conn. 10C; but if opin- 
 ion is based on newspaper report or rumor, 
 and the juror says he can give an impartial 
 
 on on the evidence, he is conn 
 People v. Cochran, 61 Cal. 548; Walker v. 
 State, 102 Ind. 502. 1 X. E. 856; Thayer v. 
 Min. Co., 105 111. 547; State v. . , l.a. 
 
 Ann. 327: State v. Green, 95 X. C. 611 ; II- 
 rich v. People, 39 Mich. 215: Weston v. 
 J 1 1 Pa. 251, 2 Atl. 191. A juror may be ask- 
 ed whether his "political affiliations or party 
 predilections tend to bias his judgment ei- 
 ther for or against the defendant"; Connors 
 v. U. S., 15S U. S. 40S, 15 Sup. Ct 951, 39 
 L. Ed. i<>::::. 
 
 B7io may challenge. Both parties, in civil
 
 CHALLENGE 
 
 452 
 
 CHALLENGE 
 
 as well as in criminal cases, may challenge, 
 for cause ; and equal privileges are generally 
 allowed both parties in respect to perempto- 
 ry challenges ; but see Tharp v. Feltz's Adm'r, 
 
 6 B. Monr. (Ky.) 15 ; Shoeffler v. State, 3 Wis. 
 823 ; Pfomer v. People, 4 Park. Cr. Cas. (N. 
 Y.) 5S6; and after a juror has been chal- 
 lenged by one party and found indifferent, 
 he may yet be challenged by tbe other ; Wil- 
 liams v. State, 32 Miss. 389, 66 Am. Dec. 615. 
 A juror has no right to challenge himself, 
 and though a good cause of challenge sub- 
 sists, yet, if neither party will take advantage 
 of it, the court cannot reject him; Denn v. 
 Pissant, 1 N. J. L. 220; but see Gilliam v. 
 Brown, 43 Miss. 641. 
 
 The time to make a challenge is between 
 the appearance and swearing of the jurors; 
 Thompson v. Com., 8 Gratt. (Va.) 637; State 
 v. Patrick, 48 N. C. 443 ; Lewis v. Detrich, 3 
 la. 216; McFadden v. Com., 23 Pa. 12, 62 
 Am. Dec. 308 ; Jackson v. Pittsford, 8 Blackf . 
 (Ind.) 194; Williams v. State, 3 Ga. 453; 
 State v. Bunger, 14 La. Ann. 461 ; State v. 
 Anderson, 4 Nev. 265 ; Woodward v. Dean, 
 113 Mass. 297 ; but see Haynes v. Crutchfield, 
 
 7 Ala. 189; U. S. v. Morris, 1 Curt. C. C. 
 23, Fed. Cas. No. 15,815; Burns v. State, 80 
 Ga. 544, 7 S. E. 88; Thorp v. Deming, 78 
 Mich. 124, 43 N. W. 1097; the fact that a 
 panel has been passed by a party as satis- 
 factory will not prevent him from challeng- 
 ing one of the jurors so passed at any time 
 before he is sworn ; Silcox v. Lang, 78 Cal. 
 118, 20 Pac. 297; Daniels v. State, 88 Ala. 
 220, 7 South. 337. See Mayers v. Smith, 121 
 111. 442, 13 N. E. 216; Boteler v. Roy, 40 
 Mo. App. 234. A challenge for cause should 
 be made before the juror is sworn ; People v. 
 Duncan, 8 Cal. App. 186, 96 Pac. 414; but 
 the court may permit it before the jury is 
 completed ; People v. Schmitz, 7 Cal. App. 
 330, 94 Pac. 407, 419, 15 L. R. A. (N. S.) 717 ; 
 so also peremptory challenges may be made 
 before the juror is sworn ; State v. Deliso, 
 75 N. J. L. 808, 69 Atl. 218. 
 
 It is a general rule at common law that 
 no challenge can be made till the appear- 
 ance of a full jury ; 4 B. & Aid. 476 ; Tay- 
 lor v. R. Co., 45 Cal. 323 ; on which account 
 a party who wishes to challenge the array 
 may pray a tales to complete the number, 
 and then make his objection. Challenges to 
 the array, where allowed, must precede those 
 to tbe poll ; and the right to the former is 
 waived by making the latter ; Co. Litt. 158 
 a; Bacon, Abr. Juries, E, 11 ; People v. Rob- 
 erts, 6 Cal. 214; Weeping Water Electric 
 Light Co. v. Haldeman, 35 Neb. 139, 52 N. W. 
 892 ; but see Clinton v. Englebrecht, 13 Wall. 
 (U. S.) 434, 20 L. Ed. 659. In cases where 
 peremptory challenges are allowed, a juror 
 unsuccessfully challenged for cause may sub- 
 sequently be challenged peremptorily ; 4 Bla. 
 Com. 356; 6 Term 531; 4 B. & Aid. 476. 
 See Com. v. Webster, 5 Cush. (Mass.) 295, 
 52 Am. Dec. 711. 
 
 Manner of making. Challenges to the ar- 
 ray must be made in writing ; People v. Doe, 
 1 Mich. 451; Suttle v. Batie, 1 la. 141; but 
 challenges to the poll are made orally and 
 generally by the attorney's or party's say- 
 ing, "Challenge," or "I challenge," or "We 
 challenge;" 1 Chit. Cr. Law 533-541; 4 
 Hargr. St. Tr. 740; Trials per Pais 172; 
 Cro. Car. 105. See State v. Knight, 43 Me. 
 11; Zimmerly v. Road Com'rs, 25 Pa. 134; 
 Rolland v. Com., 82 Pa. 306, 22 Am. Rep. 
 75S. 
 
 The guaranty in the constitution of a trial 
 by jury does not prevent legislation as to 
 the manner of selecting jurors or allowing 
 peremptory challenges to the state; State 
 v. Ward, 61 Vt. 153, 17 Atl. 483. See Jury, 
 sub-tit. Qualifications. 
 
 CHAMBER. A room in a house. There 
 may be an estate of freehold in a chamber as 
 distinct and separate from the ownership of 
 the rest of the house ; 1 Term 701 ; Co. 
 Litt. 4S b; Loring v. Bacon, 4 Mass. 576 ; Pro- 
 prietors of South Congregational Meeting- 
 house v. City of Lowell, 1 Mete. (Mass.) 538 ; 
 Cheeseborough v. Green, 10 Conn. 318, 26 
 Am. Dec. 396; and ejectment will lie for a 
 deprivation of possession; 1 Term 701; Otis 
 v. Smith, 9 Pick. (Mass.) 293; though the 
 owner thereof does not thereby acquire any 
 interest in the land ; Stockwell v. Hunter, 11 
 Mete. (Mass.) 448, 45 Am. Dec. 220. See 
 Brooke, Abr. Demand 20 ; Aldrich v. Parsons, 
 6 N. H. 555 ; Wusthoff v. Dracourt, 3 Watts 
 (Pa.) 243 ; 3 Leon. 210. 
 
 Consult Washburn ; Preston, Real Prop- 
 erty. 
 
 CHAMBER OF ACCOUNTS. In French 
 Law. A sovereign court, of great antiquity, 
 in France which took cognizance of and 
 registered the accounts of the king's rev- 
 enue : nearly the same as the English court 
 of exchequer. Encyc. Brit. 
 
 CHAMBER OF COMMERCE. A society of 
 the principal merchants and traders of a 
 city, who meet to promote the general trade 
 and commerce of the place. Some of these 
 are incorporated, as in Philadelphia. Sim- 
 ilar societies exist in all the large commer- 
 cial cities, and are known by various names, 
 as, Board of Trade, etc. 
 
 CHAMBERS. The private room of the 
 judge. Any hearing before a judge which 
 does not take place during a term of court or 
 while the judge is sitting in court, or an or- 
 der issued under such circumstances, is said 
 to be in chambers. The act may be an of- 
 ficial one, and the hearing may be in the 
 court-room ; but if the court is not in ses- 
 sion, it is still said to be done in chambers. 
 See In Camera; Open Court. 
 
 CHAMPART. In French Law. The grant 
 of a piece of land by the owner to another, 
 on condition that the latter would deliver to
 
 CHAMPART 
 
 453 
 
 CHAMPERTY 
 
 him a portion of the crops. 18 Toullier, n. 
 182. 
 
 CHAMPERTOR. One who makes pleas or 
 suits, or causes them to be moved, either di- 
 rectly or indirectly, and sues them at his 
 proper costs, upon condition of having a part 
 of the gain. Stat 33 Edw. L stat. 2. 
 
 One who is guilty of champerty. 
 
 CHAMPERTY (Lat. campum partire, to di- 
 vide the land). A bargain with a plaintiff or 
 defendant in a suit, for a portion of the land 
 or other matter sued for, in case of a suc- 
 cessful termination of the suit which the 
 champertor undertakes to carry on at his 
 own expense. See 19 Alb. L. J. 468; Nickels 
 v. Kancs Adm'r, 82 Va. 309; 7 Biug. 369. 
 
 Champerty differs from maintenance chiefly in 
 this, that in champerty the compensation to be 
 given for the service rendered is a part of the 
 matter in suit, or some profit growing out of it ; 4 
 Bla. Com., Chase's ed. 905, n. 8; Wheeler v. Pounds, 
 24 Ala. 472; Lathrop v. Bank, 9 Mete. (Mass.) 489; 
 Barnes v. Strong. 54 N. C. 100 ; Arden v. Patterson, 
 6 Johns. Ch. (X. Y.) 44 ; Meeks v. Dewberry, 57 
 Ga. 203; Hayney v. Coyne, 10 Heisk. (Tenn.) 339; 
 Coleman v. Billings, 89 111. 1S3 ; while in simple 
 maintenance the question of compensation does not 
 enter into the account; 2 Bish. Cr. Law § 131; Quig- 
 ley v. Thompson, 53 Ind. 317. 
 
 The offence was indictable at common law ; 
 4 Bla. Com. 135; Thurston v. Percival, 1 
 Pick. (Mass.) 415; Brown v. Beauchamp, 5 T. 
 B. Monr. (Ky.) 413, 17 Am. Dec. 81; Douglas 
 v. Wood's Lessee, 1 Swan. (Tenn.) 393; 8 
 M. & W. 691 ; see LE.8Q. B. 112 ; 2 App. 
 Cas. 1S6 ; 4 L. R. Ir. 43 ; Key v. Vattier, 1 
 Ohio 132 ; Wright v. Meek, 3 G. Greene (la.) 
 472 ; Newkirk v. Cone, IS 111. 449 ; Danforth 
 v. Streeter, 28 Vt. 490; MeMullen v. Guest, 
 6 Tex. 275; and is in some of the states by 
 statute; Low v. Hutchinson, 37 Me. 196; 
 Sedgwick v. Stanton, 14 N. Y. 289; Thomp- 
 son v. Reynolds, 73 111. 11; Davis v. Shar- 
 ron, 15 B. Monr. (Ky.) 64; Stoddard v. Mix, 
 14 Conn. 12; Richardson v. Rowland, 40 
 Conn. 565; Bentinck v. Franklin, 38 Tex. 
 458; Duke v. Harper, 2 Mo. App. 1. Cham- 
 perty avoids contracts into which it enters ; 
 Martin v. Clarke, 8 R. I. 3S9, 5 Am. Rep. 586. 
 A common instance of champerty, as defined 
 and understood at common law, is where an 
 attorney agrees with a client to collect by 
 suit at his own expense a particular claim or 
 claims in general, receiving a certain propor- 
 tion of the money collected ; Dumas v. Smith, 
 17 Ala. 305 ; Key v. Vattier, 1 Ohio 132 ; 4 
 Dowl. 304; or a percentage thereon; Lath- 
 rop v. Bank. 9 Mete. (Mass.) 489; 2 Bish. 
 Cr. Law § 132 ; Kelly v. Kelly, 86 Wis. 170 ; 
 56 N. W. 637 ; and see Ogden v. Des Arts, 4 
 Duer (N. Y.) 275; Major's Ex'r v. Gibson, 1 
 Pat. & H. (Va.) 48; Newkirk v. Cone, 18 111. 
 ,449; Davis v. Sharron, 15 B. Monr. (Ky.) 64; 
 Poe v. Davis. 29 Ala. 676; Evans v. Bell, 6 
 Dana (Ky.) 479; Lytle v. State, 17 Ark. 60S; 
 Backus v. Byron, 4 Mich. 535 ; Martin v. 
 Clarke, 8 R. I. 389, 5 Am. Rep. 586; Fetrow 
 v. Merriwether, 53 111. 275; Harmon v. 
 Brewster, 7 Bush (Ky.) 355. 
 
 The tendency of modern decisions is, while 
 departing from the unnecessary severity of 
 the old law, at the same time to pie 
 the principle which defeats the mischief bo 
 which the old law was directed. It ha> 
 the disposition of courts to look not so much 
 to technical distinctions, and by treating 
 statutes on the subject as declaratory of the 
 common law, to deal with the subject with 
 more flexibility, keeping in view the real ob- 
 ject of the policy to restrain what wa 
 fined by Knight Bruce, L. J., to be "the traf- 
 fic of merchandizing in quarrels, of huckster- 
 ing in litigious discord ;" 1 D. M. & (J. 680, 
 686. In this spirit, the common-law rule 
 relative to champerty and maintenance is no 
 longer recognized in many states ; Nickels v. 
 Kane's Adm'r, 82 Va. 309; Brown v. I 
 21 Or. 260, 28 Pac. 11, 14 L. R. A. 74 
 Am. St. Rep. 752; Byrne v. R. Co., 55 Fed. 
 44 ; but in New York by statute it is unlaw- 
 ful for an attorney to give or promise a con- 
 sideration for placing in his hands a claim 
 for injuries against a railroad company ; 
 Code C. P. 678; Oishei v. Lazzarone, 01 Hun 
 623, 15 N. Y. Supp. 933. Where an attor- 
 ney agrees to prosecute an action for dam- 
 ages and advance all costs ; of the 
 poverty of the plaintiff, taking a contingent 
 fee of a portion of the amount recovered, it 
 is not void for champerty ; Dunne v. Der- 
 rick, 37 111. App. 180; nor is a contract to 
 pay for services of an attorney contingent 
 entirely upon success; Lewis v. Brown, 30 
 W. Va. 1, 14 S. E. 444; Mummas Appeal, 127 
 Pa. 474, 18 Atl. 6; Omaha & R. V. R. Co. v. 
 Brady, 39 Neb. 27, 57 N. W. 707; Lewis v. 
 Brown, 36 W. Va. 1, 14 S. E. Ill (and see 
 Elliott v. Rubel, 132 111. 9, 23 N. E. 400); 
 Fowler v. Callan, 102 N. Y. 395, 7 N. E. 169; 
 Winslow v. R. Co., 71 la. 197, 32 N. W. 330 : 
 Belding v. Smythe, 13S Mass. 530; Phelps 
 v. Park Com'rs, 119 111. 620, 10 N. E. 
 Aultman v. Waddle, 40 Kan. 195, 19 Pac. 730 ; 
 Stevens v. Sheriff, 76 Kan. 124. 90 Pac. 799. 
 11 L. R. A. (N. S.) 1153; Taylor v. Bemiss, 
 110 U. S. 42, 3 Sup. Ct. 441, 28 L. Ed. 04; 
 if unconscionable, it will not be upheld : Mul- 
 ler v. Kelly. L25 Fed. 212, 60 C. C. A. 170. A 
 committee of the Pennsylvania Bar Associa- 
 tion (1908, 1909) and one of the New York 
 State Bar Association (1909) have reported 
 strongly against contingent fees. The pur- 
 chase by attorneys of rights of action, for 
 the purpose of bringing suit thereon, is com- 
 monly prohibited in law. on grounds of pub- 
 lic policy: Chase's Bla. Com. 905, n. S: and 
 an agreement that the client shall receive a 
 certain amount out of the sum recovered, 
 and that all above (hat shall belong to the 
 attorney, is champertous ; Dahms v. S 
 13 Or. 47, 11 Pac. S01 ; Silverman v. R. Co.. 
 141 Fed. 382; but such an agreement for 
 collection without suit is not champertous; 
 Burnham v. Heselton, 84 Me. 57S. 24 Atl. 0.". 
 A contract by an attorney to pay witness
 
 CHAMPERTY 
 
 454 
 
 CHAMPERTY 
 
 fees out of a contingent fee to be allowed 
 him for successful services in a suit is ehain- 
 pertous ; Barngrover v. Pettigrew, 128 la. 
 533, 104 N. W. 904, 2 L. R. A. (N. S.) 2G0, 111 
 Am. St. Rep. 206, and so is a contract stip- 
 ulating that the client shall not compromise 
 or settle his claim without the consent of the 
 attorney; Davy v. Ins. Co., 7S Ohio St. 256, 
 85 N. E. 504, 17 L. R. A. (N. S.) 443, 125 Am. 
 St. Rep. 694. Some cases have held that an 
 attorney is under absolute disability to pur- 
 chase .from his client the subject of his re- 
 tainer ; 12 Ir. Eq. 1; West v. Raymond, 21 
 Ind. 305 ; such purchases have been held in 
 other cases to be presumptively void ; Stu- 
 binger v. Frey, 116 Ga. 396, 42 S. E. 713; 
 Roby v. Colehour, 135 111. 300, 25 N. E. 777; 
 or to be voidable at the option of the client ; 
 Lane v. Black, 21 W. Va. 617; they will be 
 closely scrutinized by the court; Mitchell v. 
 Colby, 95 la. 202, 63 N. W. 769 ; Barrett v. 
 Ball, 101 Mo. App. 288, 73 S. W. 865; but 
 they will not be set aside if they were "open, 
 honest and in every way fair to the client" ; 
 Vanasse v. Reid, 111 Wis. 303, 87 N. W. 192. 
 Many cases have refused to hold the attor- 
 ney to be under an absolute disability in this 
 respect; Handlin v. Davis, SI Ky. 34; Cox 
 v. Delmas, 99 Cal. 104, 33 Pac. 836 ; Klein v. 
 Borchert, 89 Minn. 377, 95 N. W. 215. The 
 attorney, to sustain such a purchase, must 
 establish the utmost good faith and fairness 
 and adequacy of consideration and that he 
 gave full information and disinterested ad- 
 vice to the client ; Byrne v. Jones, 159 Fed. 
 32,1, 90 C. C. A. 101 ; Dunn v. Record, 63 Me. 
 17; Day v. Wright, 233 111. 218, 84 N. E. 
 226; he must prove uberrima fides; Young 
 v. Murphy, 120 Wis. 49, 97 N. W. 496 ; this 
 rule has been applied to purchases made 
 after the relation has terminated ; 33 Beav. 
 133; Barrett v. Ball, 101 Mo. App. 288, 73 
 S. W. 865. 
 
 A contract by one not acting as attorney, 
 for a specific consideration, to defeat the 
 probate of a will, is void as a species of 
 champerty or maintenance ; Cochran v. Zach- 
 ery, 137 la. 585, 115 N. W. 486, 16 L. R. A. 
 (N. S.) 235, 126 Am. St. Rep. 307, 15 Ann. 
 Cas. 297 ; but an agreement by one having a 
 claim against a decedent's estate to do ev- 
 erything proper and legitimate to aid the 
 heirs in recovering the estate in considera- 
 tion that they would pay his claim is not 
 void as champerty or maintenance ; Smith v. 
 Hartsell, 150 N. C. 71, 63 S. E. 172, 22 L. R. 
 A. (N. S.) 203. 
 
 In England contingent fees to solicitors are 
 void by a statute of 1870. They are unknown 
 in the case of barristers. 
 
 In England, in New York, and probably 
 most of the states, the purchase of land, 
 pending a suit concerning it, is champerty; 
 and if made with knowledge of the suit and 
 not pursuant to a previous agreement, it is 
 void ; 4 Kent 449 ; Bowling's Heirs v. Roark 
 (Ky.) 24 S. W. 4; Sneed v. Hope (Ky.) 30 S. 
 
 W.-20; Snyder v. Church, 70 Hun 428, 24 
 N. Y. Supp. 337; this doctrine, established 
 by the English statutes, Westm. 1, c. 25, 
 Westm. 2, c. 49, and 28 Edw. I. c. 11, became 
 part of the common law, and either as such 
 or by statutory adoption became engrafted 
 upon the law of almost all the states. The 
 principle extends to the purchase of any 
 cause of action, as a patent which has been' 
 infringed; Keiper v. Miller, 68 Fed. 627; 
 unpaid promissory notes; Hamilton v. Gray, 
 67 Yt. 233, 31 Atl. 315, 4S Am. St. Rep. 811. 
 In Pennsylvania a person may convey an 
 interest in lands held adversely to him ; Mur- 
 ray's Estate, 13 Pa. Co. Ct. 70. 
 
 See Buying Titles. 
 
 The champerty of the plaintiff is no de- 
 fence in the action concerning which the con- 
 tract was made. A railroad company sued 
 for an overcharge cannot defend by show- 
 ing that the plaintiff made a champertous 
 contract with his attorney to induce the com- 
 pany to accept the overcharge and then sue 
 for the penalty; Railway Co. v. Smith, 60 
 Ark. 221, 29 S. W. 752; nor is such defence 
 good in actions for personal injuries ; Omaha 
 & R. Y. Ry. Co. v. Brady, 39 Neb. 27, 57 N. 
 W. 767 ; nor can a purchaser of a disputed 
 title defend against a prior unrecorded deed 
 to plaintiffs attorney for one-half of the 
 la*nd, on the ground that the latter was given 
 under a champertous contract; Chamberlain 
 v. Grimes, 42 Neb. 701, 60 N. W. 948; and 
 generally the objection that a contract is 
 champertous cannot be set up by a stranger 
 to it or in defence of a suit brought under it ; 
 Ashurst v. Peck, 101 Ala. 499, 14 South. 
 541 ; Pennsylvania Co. v. Lombardo, 49 Ohio 
 St. 1, .29 N. E. 573, 14 L. R. A. 785 ; Gilkeson 
 Sloss Commission Co. v. Bond, 44 La. Ann. 
 841, 11 South. 220;* Euneau v. Rieger, 105 
 Mo. 659, 16 S. W. 854. 
 
 An attorney suing as "administrator" to 
 recover for a death by wrongful act may be 
 guilty of a champertous agreement with the 
 beneficiaries, which may be pleaded as a de- 
 fence to the suit under a statute investing 
 the courts with equity powers for the pur- 
 pose of discovering and preventing the of- 
 fence ; Byrne v. R. Co., 55 Fed. 44. For an 
 analysis of the cases, see Wald's Poll. Cont 
 293. 
 
 As to agreements between attorney and 
 client regarding fees in divorce cases, see 
 Divorce ; Attorney ; Ethics, Legal. 
 
 As to conditional fees in Roman Law, see 
 Advocati. 
 
 CHAMPION. He who fights for another, 
 or who takes his place in a quarrel. One 
 who fights his own battles. Bracton, 1. 4, t 
 2, c. 12. 
 
 CHANCE. See Accident. 
 
 CHANCE-MEDLEY. A sudden affray. 
 This word is sometimes applied to any kind 
 of homicide by misadventure, but in strict- 
 ness it is applicable to such killing only as
 
 CHANCE-M EDLEY 
 
 455 
 
 CHANCELLOR 
 
 happens in defending one's self. 4 Bla. Com. 
 184. 
 
 CHANCELLOR. An officer appointed to 
 preside over a court of chancery, invested 
 with various powers in the several states. 
 
 There is a chancellor for the state in Dela- 
 ware, and also, with vice-chancellors, in New 
 Jersey, and in Alabama, Mississippi, and 
 Tennessee there are district chancellors elect- 
 ed by the people. Under the federal 
 and in the other states the powers and ju- 
 risdiction of courts of equity are administer- 
 ed by the same judges who hold the common- 
 law courts. 
 
 The title is also used in some of the dio- 
 ceses of the Protestaut Episcopal Church in 
 the United States to designate a member of 
 the legal profession who gives advice and 
 counsel to the bishop and other ecclesiastical 
 authorities. 
 
 In Scotland, this title is given to the fore- 
 man of the jury. Bisph. Eq. 7. 
 
 An officer bearing this title is to be found in 
 some countries of Europe, and is generally 
 invested with extensive political authority. 
 It was finally abolished in France in 1848. 
 The title and office of chancellor came to us 
 from England. 
 
 See 1 Spence, Eq. Jur.; 4 Viner, Abr. 374; 
 Woodd. Lect. 95. 
 
 For the history of the office, see Cancel- 
 larius. 
 
 In England the title is borne by several 
 functionaries, thus: 
 
 Lord High Chancellor of Great Britain. 
 This has been the title of his office since the 
 Union with Scotland (in effect May 1, 1707). 
 He is appointed by the Crown, by the deliv- 
 ery to him of the Great Seal of the United 
 Kingdom, and verbally addressing him by 
 the title. It is usual to appoint the person 
 recommended by the Prime Minister, from 
 such members of the bar as hold or have held 
 the office of Attorney or Solicitor General. 
 There is no qualification for the office, except 
 that none but a Protestant can be appointed. 
 7 Halsb. Laws of Eng. 56. He holds office 
 during pleasure, and as a member of the 
 Cabinet and under the usage accepts or re- 
 tires from office with the political party to 
 which he belongs. He is expressly excepted 
 from the term of office during good behavior 
 provided for the judges in the Judicature 
 Acts. He is a member of the Privy Council, 
 probably by prescription; also prolocutor or 
 speaker of the House of Lords by proscrip- 
 tion. He is not necessarily a peer, and if 
 not, he cannot address the House of Lords. 
 He is custodian of the Great Seal, except 
 when it is entrusted to a Lord Keeper, or is 
 in commission. He is head of the judicial 
 administration of England and is responsi- 
 ble for the appointment of judges of the 
 High Court, except the Chief Justice, who is 
 appointed by the Trime Minister. He ap- 
 points County Court judges (except where 
 
 the whole of the County Court district lies 
 within the Duchy of Lancaster). He advises 
 the Crown as to nominating Justices of the 
 Peace. He is President of the High Court of 
 Justice, and of the Chancery Division of the 
 High Court and an ex officio member of the 
 Court of Appeals, and presiding officer thereof. 
 
 Lord Chancellors Since 1660. 
 
 1660 Lord Clarendon. 
 
 1667 Lord Keeper (Sir Orlando Brldgman). 
 
 1072 Lord Shaitesbury. 
 
 1673 Lord Nottingham. 
 
 1682 Lord Keeper Guilford. 
 
 1685 Lord Keeper Guilford. 
 
 1685 Lord Jeffreys. 
 
 1687 Lord Commissioner Meynard and others. 
 
 1690 Lord Commissioner Trevor and others. 
 
 1693 Lord Somers (John Somersi. 
 
 1700 Lord Keeper Wright (Nathan Wright). 
 
 1702 • Lord Keeper Wright 
 
 1705 Lord Cowper (Earl Cowper). 
 
 1710 Lord Harcourt. 
 
 1714 Lord Harcourt 
 
 1714 Lord Cowper. 
 
 1718 Lord Macclesfield (Thomas Parker). 
 
 Lord King (Peter King). 
 
 1727 Lord King. 
 
 17.;3 Lord Talbot (Charles Talbot). 
 
 1737 . Lord Hardwicke (Philip Yorke). 
 
 1757 Lord Keeper Henley (Robert Henley). 
 
 1760 Lord Northington. 
 
 1766 Lord Camden (Charles Pratt). 
 
 1770 Charles Yorke. 
 
 1771 Lord Apsley, Earl Bathurst (Henry Bath- 
 
 urst). 
 
 1778 Lord Thurlow (Edward Thurlow). 
 
 1783 Lord Thurlow. 
 
 Hord Loughborough (Alexander Wedderburn) 
 
 1801 Lord Eldon (John Scott). 
 
 1806 Lord Erskine (Thomas Erskine). 
 
 L807 Lord Eldon. 
 
 1820 Lord Eldon. 
 
 1827 Lord Lyndhurst (John Singleton Copley). 
 
 1830 Lord Brougham (Henry Brougham). 
 
 1834 Lord Lyndhurst. 
 
 1S36 Lord Cottciiham (Charles Christopher Pepys). 
 
 1837 Lord Cottenham. 
 
 1841 Lord Lyndhurst. 
 
 1S46 Lord Cottenham. 
 
 1S50 Lord Truro (Thomas Wilde). 
 
 1852 Lord St. Leonards (Edward Burtenshaw Sug- 
 
 den). 
 
 1852 Lord Cranworth (Robert Monsey Rolfe). 
 
 1S58 Lord Chelmsford (Frederick Thesiger). 
 
 1859 Lord Campbell (John Campbell). 
 
 1861 Lord Westbury (Richard Bethell). 
 
 1865 Lord Cranworth. 
 
 1866 Lord Chelmsford. 
 
 1868 Lord Cairns (Hugh McCalmont Cairns). 
 
 1868 Lord Hatherly (Wm. Page-Wood). 
 
 1872 Lord Selborne (Roundell Palmer). 
 
 1874 Lord Cairns. 
 
 1880 Lord Selborne. 
 
 1885 Lord Halsbury (Hardlnge Stanley Giffard). 
 
 1886 Lord Herscbell (Farrer Herschell). 
 1886 Lord Halsbury. 
 
 1892 Lord Herschell. 
 
 1S95 Lord ii ilsbury. 
 
 1905 Lord Lorcburn (Robert Threphic Reld). 
 
 1912 Lord Haldane (Richard Burdon Haldane). 
 
 There is a Lord Chancellor of Ireland, but 
 none in Scotland since the Union. 
 
 The Chancellor of the Duchy of Lancaster, 
 who provides over the court of the duchy, 
 to Judge and determine controversies relat- 
 ing to lands holden of the king in right of 
 the Duchy of Lancasti 
 
 The Chancellor of the Exchequer is an of- 
 ficer who formerly sat in the court of ex-
 
 CHANCELLOR 
 
 456 
 
 CHANCELLORS' COURTS 
 
 chequer, and, with the rest of the court, 
 ordered things for the king's benefit. Cowell. 
 This part of his functions is now practically 
 obsolete; the chancellor of the exchequer 
 is now known as the minister of state who 
 has control over the national revenue and 
 expenditure. 2 Steph. Com. 467. 
 
 The Chancellor of a Diocese is the officer 
 appointed to assist a bishop in matters of 
 law, and to hold his consistory courts for 
 him. 1 Bla. Com. 382; 2 Steph. Com., 11th 
 ed. GS4. 
 
 The Chancellor of a University, who is the 
 principal officer of the university. His office 
 is for the most part honorary. 
 
 CHANCELLORS' COURTS IN THE TWO 
 UNIVERSITIES. Courts of local jurisdic- 
 tion, resembling borough courts, in and for 
 the two Universities of Oxford and Cam- 
 bridge in England. 3 Bla. Com. 83. These 
 are courts subsisting under ancient charters 
 granted to these universities and confirmed 
 by act of parliament. If the defendant be 
 a member of the University of Oxford resi- 
 dent within its limits, the suit must be in 
 this court, although the plaintiff is not con- 
 nected with the university or resident there, 
 and although the cause of action did not 
 arise within its limits; Odgers, C. L. 1030, 
 citing 16 Q. B. D. 761. The rule at Cam- 
 bridge is the same, except that the privilege 
 cannot be claimed if any person not a mem- 
 ber of the university be a party. The Uni- 
 versity of Oxford claims a similar privilege in 
 criminal matters when any member of the 
 university, resident within its limits, is de- 
 fendant or prosecutor; Odgers, C. L. 1030; 
 4 Inst. 227 ; Rep. *. Hardw. 341 ; 2 Wils. 406 ; 
 12 East 12; 13 id. 635; 15 id. 634; 10 Q. 
 B. 292. This privilege of exclusive jurisdic- 
 tion was granted in order that the students 
 might not be distracted from their studies 
 and other scholastic duties by legal process 
 from distant courts. 
 
 The most ancient charter containing this 
 grant to the University of Oxford was 28 
 Hen. III. a. d. 1244, and the privileges there- 
 by granted were confirmed and enlarged by 
 every succeeding prince down to Hen. VIII., 
 in the 14th year of whose reign the largest 
 and most extensive charter of all was grant- 
 ed, and this last-mentioned charter is the 
 one now governing the privileges of that uni- 
 versity. A charter somewhat similar to that 
 of Oxford was granted to Cambridge in the 
 third year of Elizabeth. And subsequently 
 was passed the statute of 13 Eliz. c. 29, 
 whereby the legislature recognized and con- 
 firmed all the charters of the two universi- 
 ties, and those of the 14 Henry VIII. and 
 3 Eliz. by name (13 Eliz. c. 29) ; 16 Q. B. D. 
 761 (Oxford), 12 East 12 (Cambridge), which 
 act established the privileges of these uni- 
 versities without any doubt or opposition. 
 
 It is to be observed, however, that the 
 privilege can be claimed only on behalf of 
 
 members who are defendants, and when an 
 action in the High Court is brought against 
 such member the university enters a claim 
 of conusance, that is, claims the cognizance 
 of the matter, whereupon the action is with- 
 drawn from the High Court and transferred 
 to the University Court; 16 Q. B. D. 761. 
 
 Procedure in these courts was usually reg- 
 ulated according to the laws of the civilians, 
 subject to specific rules made by the vice- 
 chancellor, with the approval of three of 
 his Majesty's judges. See (as to Oxford) 
 25 & 26 Vict, c 26, § 12. Under the charter 
 of Henry VIII. the chancellor and vice- 
 chancellor and the deputy of such vice- 
 chancellor are justices of the peace for the 
 counties of Oxford and Berks, which juris- 
 iiction was confirmed in them by 49 & 50 
 Vict. c. 31 ; 3 Steph. Com. 325. 
 
 The judge of the chancellor's court at Ox- 
 ford was a vice-chancellor, with a deputy 
 or assessor. An appeal lay from his sentence 
 to delegates appointed by the congregation, 
 thence to delegates appointed by the house 
 of convocation, and thence, in case of any 
 disagreement only, to judges delegates ap- 
 pointed by the crown under the great seal 
 in chancery; 3 Steph. Com., 11th ed. 325. 
 
 CHANCER. To adjust according to prin- 
 ciples of equity, as would be done by a 
 court of chancery. Cent Diet. 
 
 The practice indicated by the word arose 
 in parts of New England at a time when 
 the courts had no equity jurisdiction, and 
 were sometimes compelled to act upon equi- 
 table principles; as by restraining the en- 
 forcement of the penalty of a bond beyond 
 what was equitable. 
 
 In Inhabitants of Machiasport v. Small, 
 77 Me. 109, and Lewiston v. Gagne, 89 Me. 
 395, 36 Atl. 629, 56 Am. St. Rep. 432, bonds 
 were "chancered" after judgment had been 
 entered for the penalty. The court will 
 "chancer" a bond upon a writ of scire faci- 
 as; Colt v. Eaton, 1 Root (Conn.) 524; a 
 court of bankruptcy may "chancer" a bond 
 given for the release of a bankrupt; In re 
 Appel, 163 Fed. 1002, 90 C. C. A. 172, 20 
 L. R A. (N. S.) 76 (C. C. A., 1st Cir.). Un- 
 der a statute, the penalty of a recognizance 
 to prosecute a writ of error was "chancered" 
 after execution had been returned satisfied; 
 James v. Smith, 1 Tyler (Vt.) 12S. See Vt. 
 Stat. 1894, §§ 2035-2038. In the absence 
 of a statute ""chancering" was refused in 
 Philbrick v. Buxton, 40 N. H. 384. 
 
 The practice of "chancering" is a very old 
 one. A forfeiture could be "chancered" un- 
 der a law of 1699; Phoenix Mut. Life Ins. 
 Co. v. Clark, 59 N. H. 561. Adjudged cases 
 in 1630-1692 may be found in the Records 
 of the Court of Assistants of Massachusetts 
 Bay Colony. The early laws of Massachu- 
 setts provided for "chancering" the for- 
 feiture of any penal bond; Acts of 1692, 
 1693, 1697, 169S, 1699; and bonds and niort-
 
 CHANCER 
 
 457 
 
 CHARACTER 
 
 gages were frequently "chancered" by spe- 
 cial act; 10 Acts and Resolves of Massachu- 
 setts Bay, 403, 676; 11 id. 585; 13 id. 244; 
 16 id. 95. In Rhode Island an act of 174G 
 provided for "chancerizing" the forfeiture 
 "where any penalty is forfeited, or condi- 
 tional estate recovered, or equity of redemp- 
 tion sued for, whether judgment is con- 
 fessed or otherwise obtained." 
 
 chancer is defined in the New Dictionary 
 as to "tax" (an account or bill of costs) but 
 there seems to be no authority for this. 
 
 CHANCERY. See Cotjbt of Chancery. 
 
 CHANNEL. The bed in which the main 
 stream of a river flows, and not the deep 
 water of the stream, as followed in navi- 
 gation. Dunlieth & Dubuque Bridge Co. v. 
 Dubuque County, 55 la. 558, 8 N. W. 443. 
 The main channel is that bed of the river 
 over which the principal volume of water 
 flows. St. Louis & St. P. Packet Co. v. 
 Bridge Co., 31 Fed. 757. 
 
 By act of congress of Sept. 19, 1S90, U. S. 
 R. S. 1 Supp. S00. any alteration or modifica- 
 tion of the channel of any navigable water 
 of the United States, by any construction, 
 excavation, or filling, or in any other man- 
 ner without the approval of the secretary of 
 war, is prohibited. For the construction of 
 this act, see U. S. v. Burns, 54 Fed. 351. 
 
 CHANTRY. A church or chapel endowed 
 with lands for the maintenance of priests to 
 say mass daily for the souls of the donors. 
 Terines de la Ley; Cowell. 
 
 CHAPELRY. The precinct of a chapel; 
 the same thing for a chapel that a parish is 
 for a church. Termes de la Ley; Cowell. 
 
 CHAPELS. Places of worship. They may 
 be either private chapels, such as are built 
 and maintained by a private person for his 
 own use and at his own expense, or free 
 chapels, so called from their freedom or ex- 
 emption from all ordinary jurisdiction, or 
 chapels of ease, which are built by the 
 mother-church for the ease and convenience 
 of its parishioners, and remain under its 
 jurisdiction and control. 
 
 CHAPTER. In Ecclesiastical Law. A 
 
 congregation of clergymen. 
 
 Such an assembly is termed capituhnn, which 
 signifies a little head ; it being a kind of head, not 
 only to govern the diocese in the vacation of the 
 bishopric, but also for other purposes. Coke, Litt. 
 103. 
 
 CHARACTER. The possession by a per- 
 son of certain qualities of mind or morals, 
 distinguishing him from others. 
 
 In Evidence. The opinion generally enter- 
 tained of a person derived from the common 
 report of the people who are acquainted 
 with him ; his reputation. Kimmel v. Kim- 
 mel, 3 S. & R. (Pa.) 336, 8 Am. Dec. 655; 
 Boynton v. Kellogg, 3 Mass. 192, 3 Am. Dec. 
 122 ; 3 Esp. 236 ; Tayl. Ev. 328, 329. 
 
 A clear distinction exists between the strict mean- 
 ing of the words character and reputation. Char- 
 
 acter Is defined to be the assemblage of qualities 
 which distinguish one person from another, while 
 reputation is the opinion of character generally en- 
 tertained; Worcester, Diet. This distinction, how- 
 ever, is not regarded either in the statutes or in the 
 decisions of the courts ; thus, a libel is said to be 
 an injury to character; the character of a witness 
 for veracity is said to be impeached: 
 offered of a prisoner's good character : Abbott, Law 
 Diet. See Leverich v. Frank, G Or. 
 Leach, 26 Vt. 278. The word character 
 used in the law rather to express what is properly 
 signified by reputation. 
 
 The moral character and conduct of a 
 person in society may be used in proof be- 
 fore a jury in three classes of cases; first, 
 to afford a presumption that a particular 
 person has not been guilty of a criminal act; 
 second, to affect the damages in particular 
 cases, where their amount depends on the 
 reputation and conduct of any Individual ; 
 and, third, to impeach or confirm the veraci- 
 ty of a witness. 
 
 Where the guilt of an accused person is 
 doubtful, and the character of the SU] 
 agent is involved in the question, a presump- 
 tion of innocence arises from his former 
 conduct in society, as evidenced by hi 
 eral reputation ; since it is not probable that 
 a person of known probity and humanity 
 would commit a disnouest or outrageous 
 act in the particular instance. But where 
 it is a question of great and atrocious crim- 
 inality, the commission of the act is so un- 
 usual, so out of the ordinary course of 
 things and beyond common experience — it is 
 so manifest that the offence, if perpetrated, 
 must have been influenced by motives not 
 frequently operating upon the human mind 
 — that evidence of reputation and of a man's 
 habitual conduct under common circumstanc- 
 es, must be considered far inferior to what 
 it is in the instance of accusations of a low- 
 er grade. Against facts strongly proved, 
 good character cannot avail. It is therefore 
 in smaller offences, in such as relate to the- 
 actions of daily and common life, as when 
 one is charged with pilfering and stealing, 
 that evidence of a high character for hon- 
 esty will satisfy a jury that the accused 
 is not likely to yield to so slight a tempta- 
 tion. People v. Ryder, 151 Mich. 187, 111 
 N. W. 1021. In such case, where the evi- 
 dence is doubtful, proof of character may be 
 given with good effect. But still, even with 
 regard to the higher crimes, evidence of 
 good character, though of less avail, is com- 
 petent evidence to the jury, and a s] 
 of evidence which me accused has a right 
 to offer. But it behooves one charged with 
 an atrocious crime, like murder, to prove 
 a high character, and by Btrong evidence, 
 to make it counterbalance a strong amount 
 of proof on the part of the prosecution. It 
 is the privilege of the accused to put his 
 character in issue, or not. Lewis v. State, 
 93 Miss. 697, 47 South. 467. If he does, and 
 offers evidence of good character, then the 
 prosecution may give evidence to rebut and
 
 CHARACTER 
 
 458 
 
 CHARACTER 
 
 counteract it. But it is not competent for 
 the prosecution to give in proof the bad 
 character of the defendant, unless he first 
 opens that line of inquiry by evidence of 
 good character; Per Shaw, C. J., Com. v. 
 Webster, 5 Cush. (.Mass.) 325, 52 Am. Dec. 
 711: See 1 Campb. 460; 2 St. Tr. 1038; 
 State v. Wells, 1 N. J. L. 424, 1 Am. Dec. 
 211; Nash v. Gilkeson, 5.S. & R. (Pa.) 352; 
 Gregory v. Thomas, 2 Bibb (Ky.) 2S6, 5 Am. 
 Dec. 608; Grannis v. Branden, 5 Day (Coun.) 
 260, 5 Am. Dec. 143; Humphrey v. Hum- 
 phrey, 7 Conn. 116 ; Fowler v. Ins. Co., 6 
 Cow. (N. Y.) 673, 16 Am. Dec. 460; Jeffries 
 v. Harris, 10 N. C. 105; Felsenthal v. State, 
 30 Tex. App. 675, 18 S. W. 644; State v. 
 Ellwood, 17 R. I. 763, 24 Atl. 7S2 ; Carter 
 v. State, 36 Neb. 481, 54 N. W. 853; Smoth- 
 ers v. City of Jackson, 92 Miss. 327, 45 
 South. 982. 
 
 Where, in a criminal trial, no evidence 
 has been offered, there is a presumption of 
 good character, as to which the jury should, 
 on his request, be instructed ; it is error for 
 the court to comment unfavorably upon the 
 character of the accused ; Mullen v. U. S., 
 106 Fed. S95, 46 C. C. A. 22 ; and a prosecut- 
 ing officer may not appeal to the jury to 
 assume that his character was bad, because 
 he had produced no evidence to the con- 
 trary; Lowdon v. U. S., 149 Fed. 673, 79 C. 
 C. A. 361; Gater v. State, 141 Ala. 10, 37 
 South. 692; McQuiggan v. Ladd, 79 Vt. 90, 
 64 Atl. 503, 14 L. R. A. (N. S.) 6S9 ; People 
 v. Van Gaasbeck, 189 N. Y. 408, 82 N. E. 
 718, 22 L. R. A. (N. S.) 650, 12 Ann. Cas. 
 745. 
 
 In a trial for rape there is no presumption, 
 in the absence of proof to the contrary, that 
 the defendant was of good character. Ad- 
 dison v. People, 193 111. 405, 62 N. E. 235. 
 
 On the trial of an indictment for homi- 
 cide, evidence offered generally to prove 
 that the deceased was well known, and un- 
 derstood to be a quarrelsome, riotous, and 
 savage man, is inadmissible ; 1 Whart. Cr. 
 L. § 641; see Perry v. State, 94 Ala. 25, 10 
 South. 650; Com. v. Straesser, 153 Pa. 451, 
 26 Atl. 17 ; but for the purpose of showing 
 that the homicide was justifiable on the 
 ground of self-defence, proof of the charac- 
 ter of the deceased may be admitted, if it 
 is also shown that the prisoner was influ- 
 enced by his knowledge thereof in commit- 
 ting the deed; Marts v. State, 26 Ohio St. 
 162; Garner v. State, 2S Fla. 113, 9 South. 
 835, 29 Am. St. Rep. 232; but in a civil ac- 
 tion for damages for homicide which defend- 
 ant alleges was committed in self-defence 
 evidence of good character was held not ad- 
 missible; Morgan v. iiarnhill, 118 Fed. 24, 
 55 C. C. A. 1. The general reputation of 
 the deceased as a violent and dangerous per- 
 son is presumptive proof of knowledge of 
 decedent's character; Trabune v. Com. (Ky.) 
 17 S. W. 186. Unless the character of the 
 deceased is attacked, it is clearly not ad- 
 
 missible for the prosecution to prove its 
 peaceableness ; Davis v. People, 114 111. 86, 
 29 N. E. 192. Good character will not avail 
 one if the crime has been proven beyond a 
 reasonable doubt; People v. Sweeney, 133 
 N. Y. 609, 30 N. E. 1005; Hathcock v. State, 
 88 Ga. 91, 13 S. E. 959; Kistler v. State, 
 54 Ind. 400; People v. Jassino, 100 Mich. 
 536, 59 N. W. 230; contra, Com. v. Cate, 
 220 Pa. 13S, 69 Atl. 322, 123 Am. St. Rep. ( 
 6S3. It is erroneous to instruct a jury that 
 evidence of good character can only be con- 
 sidered when the question of guilt or inno- 
 cence is in doubt ; Rowe v. U. S., 97 Fed. 
 779, 3S C. C. A. 496; State v. Dickerson, 77 
 Ohio St. 34, 82 N. E. 969, 122 Am. St. Rep. 
 479, 11 Ann. Cas. 1181. In a criminal case 
 the defendant has the right to prove his 
 reputation for honesty and truth ; Browder 
 v. State, 30 Tex. App. 614, IS S. W. 197; 
 though he be indicted for murder by poison- 
 ing, he can show his reputation for peace 
 and quietude; Hall v. State, 132 Ind. 317, 
 31 N. E. 536. 
 
 In a prosecution for theft, the accused 
 may prove his reputation for honesty and 
 integrity, but not particular acts; Leonard 
 v. State, 53 Tex. Cr. R. 187, 109 S. W. 149; 
 nor special traits or particular instances not 
 bearing on the peculiar nature of the crime 
 charged ; Arnold v. State, 131 Ga. 494, 62 S. 
 E. 806. . Proof of previous occupations and 
 of family history is inadmissible ; State v. 
 Clem, 49 Wash. 273, 94 Pac. 1079. It is 
 competent for a witness to testify that he 
 has never heard the reputation of the de- 
 fendant questioned; State v. McClellan, 79 
 Kan. 11, 98 Pac. 209, 17 Ann. Cas. 106; 
 Foerster v. U. S., 116 Fed. 860, 54 C. C. 
 A. 210, but proof that he has never before 
 been arrested or accused of crime is incom- 
 petent; State v. Marfaudille, 48 Wash. 117, 
 92 Pac. 939, 14 L. R. A. (N. S.) 346, 15 Ann. 
 Cas. 5S4. 
 
 It is proper to cross-examine a witness 
 who has testified to the defendant's reputa- 
 tion for peace and quiet, as to how many 
 men she had heard he had shot ; People 
 v. Laudiero, 192 N. Y. 304, 85 N. E. 132. 
 
 In an action by a locomotive engineer for 
 injury resulting from a collision, evidence 
 that he frequently had slept at his post, and 
 run by stations where he should have stop- 
 ped, was properly excluded ; Missouri, K. & 
 T. R. Co. v. Johnson, 92 Tex. 380, 48 S. W. 
 568. 
 
 In some instances, evidence in disparage- 
 ment of character is admissible, not in order 
 to prove or disprove the commission of a 
 particular fact, but with a view to damages. 
 In actions for criminal conversation with 
 the plaintiff's wife, evidence may be given 
 of the wife's general bad reputation for 
 want of chastity, and even of particular acts 
 of adultery committed by her previous to 
 her intercourse with the defendant ; Whart. 
 Ev. 51; Bull. N. P. 27, 296; 12 Mod. 232:
 
 CHARACTER 
 
 459 
 
 CHARACTER 
 
 3 Esp. 23G ; and a wife who has confessed 
 her adultery cannot prove previous good 
 conduct; State v. ! oster, 136 [a. 527, 114 
 X. W. 36. See Ligon v. Ford, 5 Munf. (Va.) 
 10. As to the statutory use of the word 
 "character," see Carpenter v. People, 8 Barb. 
 (N. Y.) 603; People v. Kenyon, 5 Park. Cr. 
 . Andre v. State, 5 la. 389, 68 
 Am. Dec. 70S; Boak v. Stair. 5 la. 430; 
 State v. Prlzer, 49 la. 531, Ml Am. Rep. 155. 
 
 In actions for slander or libel, the law is 
 well settled that evidence of the previous 
 general character of the plaintiff, hefore 
 and at the time of the publication of the 
 slander or libel, is admissible, under the 
 general issue, in mitigation of damages. 
 The ground of admitting such evidence is 
 that a person of disparaged fame is not en- 
 titled to the same measure of damages as 
 one whose character is unblemished. Ann 
 the reasous which authorize the admission 
 of this species of evidence under the gi 
 issue alike exist, and require its admission, 
 where a justification has been pleaded but 
 the defendant has failed in sustaining it; 
 Stone v. Varney, 7 Mete. (Mass.) 86, 39 Am. 
 Die TCL' ; where the decisions are collected 
 and reviewed; Hamer v. McFarlin, 4 Denio 
 (N. Y.) 509; Bowen v. Hall, 20 Vt. 2:;2 ; 
 Steinman v. McWilliams, 6 Pa. 170; Eifert 
 v. Sawyer, 2 Nott & McC. (S. C.) 511, 10 
 Am. Dec. 633. When evidence is admitted 
 touching the general reputation of a per- 
 son, it is manifest that it is to be confined 
 to matters in reference to the nature of 
 the charge against him; Douglass v. Tousey, 
 2 Wend. (N. Y.) 352, 20 Am. Dec. 616. See 
 People v. Cowgill, 93 Cal. 596, 29 Pac. 22S. 
 
 In an action for damages for assault aud 
 battery it is error to admit evidence of de- 
 fendant's good character; Pokriefka v. 
 Maekurat, 91 Mich. 399, 51 N. W. 1059; 
 Sturgeon v. Sturgeon, 4 Ind. App. 232, 30 N. 
 E. SO.'.. 
 
 The party against whom a witness is called 
 may disprove the facts stated by him, or 
 may examine other witnesses as to his gen- 
 eral character; but they will not be allowed 
 to speak of particular facts or parts of his 
 conduct; Bull. N. P. 296; State v. Rose, 47 
 Minn. 47, 49 N. W. 404. For example, evi- 
 dence of the general character of a prose- 
 cutrix for a rape may be given, as that she 
 was a street- walker ; but evidence of specific 
 acts of criminality cannot be admitted; 2 C. 
 & P. 589. And see Cadwell v. State. 17 Conn. 
 467; Eow v. Mitchell, IS Me. 372; Common- 
 wealth v. Murphy, 14 Mass. :;v7; 5 Cox, Cr. 
 Cas. 146. The regular mode is to inquire 
 whether the witness under examination has 
 the means of knowing the former witness's 
 general character, and whether, from such 
 knowledge, be would believe him on his oath; 
 4 St. Tr. 693; 4 Esp. 102; Knode v. William- 
 son, 17 Wall. (U. S.) 5S6, 21 L. Ed. 670. In 
 answer to such evidence against character, 
 the other party may cross-examine the wit- 
 
 ness as to his means of knowledge and the 
 
 grounds of his opinion, or be may attack 
 
 such witness's general od by 
 
 fresh evidence support '. of his 
 
 own; 2 Stark. 151, 2 11: Stark. E\ pt 1. 17.".:: 
 
 to 1758; 1 I'hill. Kv. 229. A party < 
 
 give evidence to confirm the 
 
 of a witness, unless bis general 
 
 has been impugned by his an' 
 
 dee v. Brownfield, 9 Watts (Pa.) 124; 
 
 v. Cooper, 71 Mo. 436; Fitzgerald v. 
 
 I. 28; Tinner v. Commonwi alth, 86 Pa. 
 74, 27 Am. Rep. 683; Atwood v. 1 >. arborn, 1 
 Allen (Mass.) 483, 79 Am. 'Dec. 7 
 See note in 14 L. R. A. (N. S.) 689. 
 
 CHARGE. A duty or obligation imposed 
 
 upon some person. A lien, incumbrance, or 
 
 claim which is to be satisfied out of the 
 
 ic thing or proceeds thereof to which 
 
 it applies. 
 
 To impose such an obligation ; to create 
 such a claim. 
 
 To accuse. 
 
 The distinctive significance of the term rests In 
 the idea of obligation directly bearing upon the In- 
 dividual thing or person to be affected, and binding 
 him or It to the discharge of the duty or satisfac- 
 tion of the claim imposed. Thus, charging an estate 
 with the payment of a debt is appropriating a defi- 
 nite portion to the particulor purpose ; charging a 
 person with the commission of a crime is pointing 
 out the individual who is bound to answer for the 
 wrong committed; charging a jury is stating the 
 precise principles of law applicable to the case im- 
 mediately in question. In this view, a charge will, 
 in general terms, denote a responsibility peculiar to 
 the pr-rson or thing affected and authoritatively Im- 
 posed, or the act fixing such responsibility. 
 
 In Contracts. An obligation, binding upon 
 him who enters into it, which may be re- 
 moved or taken away by a discharge. Ter- 
 mes de la Ley. 
 
 An undertaking to keep the custody of 
 another person's goods. 
 
 An obligation entered into by the owner 
 of an estate, which binds the estate for its 
 performance. Comyns, Dig. Rent, c. 6; 2 
 Ball & B. 223. 
 
 In Devises. A duty imposed upon a devi- 
 see, either personally, or with respect to the 
 estate devised. It may be the payment of 
 a legacy or sum of money or an annuity, 
 the care and maintenance of a relative or 
 other person, the discharge of an existing 
 lien upon land devised or the payment of 
 debts, or, in short, the performance of any 
 duty or obligation which may be lawfully 
 Imposed as a condition of the enjoyment 
 of the bounty of a testator. A charge is 
 not an interest in. but a lien upon, lands; 
 Potter v. Gardner, 12 Wheat. (V . so ins. 
 L. Ed. 706; Thayer v. Finnegan, 134 Mass. 
 62, i". Am. Rep. 285; Appeal of Walter. 95 
 Pa. 305; 1 Ves. & B. 260; it will not be di- 
 vested by a sheriff's sale; Rohn v. Odenwel- 
 der, 162 Pa. 346, 20 Atl. sub. 
 
 Where a charge is personal, and there are 
 no words of limitation, the devisee will gen- 
 erally take the fee of the estate devised; 4* 
 Kent 540; 2 Bla. Com. 108; Jackson v. Mer-
 
 CHARGE 
 
 460 
 
 CHARGE 
 
 rill, 6 Johns. (N. Y.) 185, 5 Am. Dec. 213; 
 Wait v. Belding, 24 Pick. (Mass.) 139; but 
 he will take only a life estate if it be upon 
 the estate generally; 14 Mees. & W. 69S; 
 Gardner v. Gardner, 3 Mas. 209, Fed. Cas. 
 No. 5,227; Wright v. Denn, 10 Wheat. (U. 
 S.) 231, 6 L. Ed. 303; Jackson v. Martin, 18 
 Johns. (N. Y.) 35; McLellan v. Turner, 15 
 Me. 436; Lithgow v. Kavenagh, 9 Mass. 161 ; 
 Spraker v. Van Alstyne, 18 Wend. (N. Y.) 
 200; unless the charge be greater than a 
 life estate will satisfy; 6 Co. 16; 4 Term 
 93; Olmsted v. Harvey, 1 Barb. (N. Y.) 102; 
 Wait v. Belding, 24 Pick. (Mass.) 138; 1 
 Washb. R. P. 59. See 9 L. R. A. 584, n., 
 Legacy. 
 
 In Equity Pleading. An allegation in the 
 bill of matters which disprove or avoid a 
 defence which it is alleged the defendant is 
 supposed to pretend or intend to set up. 
 Story, Eq. PI. § 31. 
 
 It is frequently omitted, and this the 
 more properly, as all matters material to 
 the plaintiff's case should be fully stated in 
 the stating part of the bill; Cooper, Eq. PI. 
 11; 1 Dan. Ch. Pr. 372, 18S3, n.; 11 Ves. Ch. 
 574. See 2 Hare, Ch. 264. 
 
 In Practice. The instructions given by the 
 court to the grand jury or inquest of the 
 county, at the commencement of their ses- 
 sion, in regard to their duty. 
 
 The exposition by the court to a petit jury 
 of those principles of the law which the 
 latter are to apply in order to render such 
 a verdict as will, in the state of facts proved 
 at the trial to exist, establish the legal rights 
 of the parties to the suit. 
 
 It formerly preceded the addresses of 
 counsel to the jury; Thayer, Evid.; and that 
 is still the practice in the federal district 
 court in Maryland. It usually includes a 
 summing up of the facts. 
 
 The essential idea of a charge Is that it is au- 
 thoritative as an exposition of the law, which the 
 jury are bound by their oath and by moral obliga- 
 tions to obey; Com. v. Porter, 10 Mete. (Mass.) 285- 
 287; Pierce v. State, 13 N. H. 536; Townsend v. 
 State, 2 Blackf. (Ind.) 162 ; Davenport v. Com., 1 
 Leigh (Va.) 588; Montee v. Com., 3 J. J. Marsh. 
 (Ky.) 150; 21 How. St. Tr. 1039; Kane v. Com., 89 
 Pa. 522, 33 Am. Rep. 787. See 5 South. L. Rev. 352 ; 
 1 Crim. L. Mag. 51 ; 3 id. 484. This is the rule in the 
 federal courts ; Sparf v. U. S., 156 U. S. 51, 15 Sup. 
 Ct. 273, 39 L. Ed. 343; Alabama; Pierson v. State, 
 12 Ala. 153 ; Arkansas ; Pleasant v. State, 13 Ark. 
 360; Sweeney v. State, 35 Ark. 585; California; 
 People v. Anderson,- 44 Cal. 65; Kentucky; Com. 
 v. Van Tuyl, 1 Mete. 1, 71 Am. Dec. 455 ; Maine ; 
 State v. Wright, 53 Me. 336; Massachusetts; Com. 
 v. Porter, 10 Mete. 286 ; Com. v. Anthes, 5 Gray 
 185; Michigan; People v. Mortimer, 48 Mich. 37, 11 
 N. W. 776; Mississippi; Bangs v. State, 61 Miss. 
 363; Missouri; Hardy v. State, 7 Mo. 607; Ne- 
 braska ; Parrish v. State, 14 Neb. 60, 15 N. W. 357 ; 
 New Hampshire ; Pierce v. State, 13 N. H. 536 ; 
 New York; People v. Bennett, 49 N. Y. 141; North 
 Carolina ; State v. Peace, 46 N. C. 251 ; Ohio ; 
 Adams v. State, 29 Ohio St. 412 ; Pennsylvania ; 
 Com. v. McManus, 143 Pa. 64, 21 Atl. 1018, 22 Atl. 
 761, 14 L. R. A. 89; South Carolina; State v. Draw- 
 dy, 14 Rich. 87; Texas; Pharr v. State, 7 Tex. App. 
 472. By statute, in some states, the jury are con- 
 stituted judges of the law as well as of the facts in 
 criminal cases, — an arrangement which assimilates 
 
 the duties of a judge to those of the moderator of a 
 town-meeting or of the preceptor of a class of law- 
 students, besides subjecting successive criminals 
 to a code of laws varying as widely as the impulses 
 of successive juries can differ. It is so In Georgia ; 
 Oneil v. State, 48 Ga. 66 ; Illinois ; Board of Super's 
 of Clay County v. Plant, 42 111. 331; Indiana; An- 
 derson v. State, 104 Ind. 467, 4 N. E. 63, 5 N. E. 
 711; Louisiana; State v. Ford, 37 La. Ann. 444; 
 Maryland ; Forwood v. State, 49 Md. 531 ; Tennes- 
 see; Nelson v. State, 2 Swan 237; and Vermont; 
 State v. Croteau, 23 Vt. 14, 54 Am. Dec. 90. Even 
 in these states, however, the courts have tried to 
 escape from this doctrine, and have of late years 
 practically nullified it in many instances. See Hab- 
 ersham v. State, 56 Ga. 61 ; Bell v. State, 57 Md. 108 ; 
 Mullinix v. People, 76 111. 211 ; State v. Ford, 37 La. 
 Ann. 449 ; State v. Hopkins, 56 Vt. 263. The charge 
 frequently and usually includes a summing up of 
 the evidence, given to show the application of the 
 principles Involved ; and in English practice the 
 term summing up is used instead of charge. 
 Though this is customary in many courts, the judge 
 is not bound to sum up the facts ; Thomps. Charg- 
 ing Juries § 79; State v. Morris, 10 N. C. 390. But 
 if he do sum up he must present all the material 
 facts; Parker v. Donaldson, 6 W. & S. (Pa.) 132; 
 Merchants' Bank of Macon v. Bank, 1 Ga. 428, 44 
 Am. Dec. 665. This is the practice in the courts of 
 the United States ; United States Exp. Co. t. 
 Kountze Bros., 8 Wall. 342, 19 L. Ed. 457. 
 
 It should be a clear and explicit state- 
 ment of the law applicable to the condition 
 of the facts ; Finch's Ex'rs v. Elliot, 11 N. 
 C. 61; Cannon v. Alsbury, 1 A. K. Marsh. 
 (Ky.) 76, 10 Am. Dec. 709; Williams v. 
 Cheesebrough, 4 Conn. 356; Van Hoesen v. 
 Van Alstyne, 3 Wend. (N. Y.) 75; Com. v. 
 White, 10 Mete. (Mass.) 14; Com. v. Porter, 
 10 Mete. (Mass.) 263; Coleman v. Roberts, 
 1 Mo. 97; Jenness v. Parker, 24 Me. 289; Lett 
 v. Horner, 5 Blackf. (Ind.) 296; Whiteford 
 v. Burekmyer & Adams, 1 Gill (Md.) 127, 
 39 Am. Dec. 640 ; People v. Murray, 72 Mich. 
 10, 40 N. W. 29. The defendant in a criminal 
 case is entitled to a full statement of the 
 law from the court; Bird v. U. S., 180 U. S. 
 356, 21 Sup. Ct 403, 45 L. Ed. 570. The 
 charge should add such comments on the 
 evidence as are necessary to explain its ap- 
 plication ; Ware v. Ware, 8 Greenl. (Me.) 
 42 ; Kinloch v. Palmer, 1 Mill, Const. (S. C.) 
 216; Nieman v. Ward, 1 W. & S. (Pa.) 6S ; 
 Wyley v. Stanford, 22 Ga. 385 (though in 
 some states the court is prohibited by law 
 from charging as to matters of fact, "but 
 may state the testimony and the law," e. g., 
 California, Tennessee, South Carolina, Geor- 
 gia, Massachusetts, etc.); and may include 
 an opinion on the weight of evidence ; Mitch- 
 ell v. Harmony, 13 How. (U. S.) 115, 14 L. 
 Ed. 75; 2 M. & G. 721; Cook v. Brown, 34 
 N. H. 460; Swift v. Stevens, 8 Conn. 431; 
 Dunlap v. Patterson, 5 Cow. (N. Y.) 243; 
 Hinson v. King, 50 N. C. 393; though the 
 rule is otherwise in some states ; Frame v. 
 Badger, 79 111. 441; Wannack v. Mayor, 
 etc., of City of Macon, 53 Ga. 162; Jenkins 
 v. Tobin, 31 Ark. 307; Barnett v. State, 83 
 Ala. 40, 3 South. 612; State v. Huffman, 
 16 Or. 15, 16 Pac. 640; People v. Gastro, 75 
 Mich. 127, 42 N. W. 937 ; but should not un- 
 dertake to decide the facts; Fightmaster v.
 
 CHARGE 
 
 461 
 
 CHARGE 
 
 Ben sly, 7 J. J. Marsh. (Ky.) 410; Sullivan v. 
 Enders, 3 Dana (Ky.) 66 ; Beekman v. Beams, 
 7 Cow. (N. Y.) 29; Planters' Bank of Prince 
 George's County v. Bank, 10 Gill & J. (Md.) 
 346; State v. Lynott, 5 R. I. 295; unless in 
 the entire absence of opposing proof; Chase 
 v. Breed, 5 Gray (Mass.) 440; Nichols v. 
 Goldsmith, 7 Wend. (N. Y.) 160; Rippey v. 
 Friede, 26 Mo. 523; Jones' Ex'rs v. Mengel, 
 1 Pa. 68. A United States court may ex- 
 press an opinion upon the facts; Lovejoy v. 
 U. S., 128 U. S. 171, 9 Sup. Ct. 57, 32 L. Ed. 
 389; Sorenson v. R. Co., 36 Fed. 166. In 
 federal courts the trial judge may express 
 his opinion on the facts, while leaving them 
 to the jury; this power is not controlled by 
 state statutes forbidding judges to express 
 any opinion on the facts; Vicksburg & M. R. 
 Co. v. Putnam, 118 U. S. 545, 7 Sup. Ct. 1, 
 30 L. Ed. 257. It is improper to instruct 
 which of two conflicting theories of the evi- 
 dence the jury shall accept : Mitchell v. 
 State, 94 Ala. 68, 10 South. 331. The pre- 
 siding judge may express to the jury his 
 opinion as to the weight of evidence. He 
 is under no obligation to recapitulate all 
 the items of the evidence, nor even all bear- 
 ing on a single question; Allis v. U. S., 155 
 U. S. 117, 15 Sup. Ct. 36, 39 L. Ed. 91. 
 
 Failure to give instructions not asked 
 for is not error; Winn v. State, 82 Wis. 571, 
 52 N. W. 775; People v. Ahem, 93 Cal. 51S, 
 29 Pac. 49; Mead v. State, 53 N. J. L. 601, 
 23 Atl. 264; Small v. Williams, 87 Ga. 681, 
 13 S. E. 589. A request to charge is prop- 
 erly refused though embodying correct prin- 
 ciples, where there is no evidence to support 
 it; Bostic v. State, 94 Ala. 45, 10 South. 
 602; Com. v. Cosseboom, 155 Mass. 298, 29 
 N. E. 463; Page v. Alexander, 84 Me. 84, 24 
 Atl. 584 ; Frost v. Lumber Co., 3 Wash. 241, 
 28 Pac. 354, 915; Everitt v. Walker, 109 N. 
 C. 132, 13 S. E. 860; Guernsey v. Greenwood, 
 88 Ga. 446, 14 S. E. 709 ; Floyd v. Efron, 66 
 Tex. 221, 18 S. W. 497; Kitchen v. McClos- 
 key, 150 Pa. 376, 24 Atl. 68S, 30 Am. St. Rep. 
 811; New York & C. Mining Co. v. Fraser, 
 130 U. S. 611, 9 Sup. Ct. 665, 32 L. Ed. 1031 ; 
 City of Rock Island v. Cuinely, 126 111. 40S, 
 18 N. E. 753; Spoonemore v. State, 25 Tex. 
 App. 358, 8 S. W. 280. A request to charge 
 may be disregarded when the court has al- 
 ready fully instructed the jury on the point. 
 The court should refuse to charge upon a 
 purely hypothetical statement of facts cal- 
 culated to mislead the jury; White v. Van 
 Horn, 159 U. S. 3, 15 Sup. Ct. 1027, 40 L. 
 Ed. 55. A judge is not bound to charge a 
 jury in the exact words proposed to him by 
 counsel, and there is no error if he instructs 
 the jury correctly and substantially covers 
 the relevant rules of law suggested ; Cun- 
 ningham v. Springer, 204 U. S. 647. 27 Sup. 
 Ct. 301, 51 L. Ed. 662, 9 Ann. ('as. 897. 
 
 Erroneous instructions in matters of law 
 which might have influenced the jury in 
 
 forming a verdict are a cause for a new- 
 trial ; Lane v. Crombie, 12 Pick. (Mass.) 177; 
 West v. Anderson, 9 Conn. 107, '21 Am. Dec. 
 737; Doe v. Paine, 11 N. C. 04, 15 Am. 
 507; even though on hypothetical quest! 
 Etting v. Bank, 11 Wheat. f0 6 L. 
 
 Ed. 419; Ya thorough v. Tate, 14 Tex. 
 People v. Roberts, 6 Cal. 214; on which no 
 opinion can be required to be given; Jor- 
 dan v. James, 5 Ohio, SS; Mitchell v. Mitch- 
 ell, 11 Gill & J. (Md.) 388; Pollard v. 
 25 N. C. 470; Smith v. Sasser, 50 N. C. 
 Dunlap v. Robinson, 28 Ala. 100; Whil 
 v. Pullen, 3 Humphr. (Tenn.) 466; Nicholas 
 v. State, 6 Mo. 6; Whitney v. Coin. 20 N. 
 H. 354; Hammat v. Russ, 16 Me. 171: Miller 
 v. Gorman, 5 Blackf. (Ind.) 112; McDaniel 
 v. State, 8 Smedes & M. (Miss.) 401, 47 Am. 
 Dec. 93; Hicks' Adm'x v. Bailey, 16 Tex. 
 229; Raver v. Webster, 3 la. 509, 66 Am. 
 Dec. 96; McDougald v. Bellamy, 18 Ga. 411; 
 but the rule does not apply where the in- 
 structions could not prejudice the o 
 Johnson v. Blackman, 11 Conn. 342 ; U. S. v. 
 Wright, 1 McLean, 509, Fed. Cas. No. 16,775; 
 Rhett v. Poe, 2 How. (U. S.) 457, 11 L. Ed. 
 338. See Miller v. State, 3 Wyo. 657, 29 
 Pac. 136. Any decision or declaration by 
 the court upon the law of the case, made 
 in the progress of the cause, and by which 
 the jury are influenced and the counsel con- 
 trolled, is considered within the scope and 
 meaning of the term "instructions;" Ilil- 
 liard. New Trials 255. 
 
 Where on a trial for murder defendant's 
 counsel asks the court to give its char-.- In 
 writing, and after complying it gives orally 
 other and additional charges, it is cause for 
 new trial ; Willis v. State, S9 Ga. 188, 15 S. 
 E. 32. 
 
 When an instruction to the jury embodies 
 several propositions of law, to some of which 
 there are no objections, the party objecting 
 must point out specifically to the trial court 
 the part to which he objects, in order to 
 avail himself of the objection; Baltimore & 
 P. R. Co. v. Mackey, 157 U. S. 72, 15 Sup. 
 Ct. 491, 39 L. Ed. 624. 
 
 "But no charge delivered by a trial court 
 is to be judged by the same standards as a 
 statement of law carefully elaborated and 
 deliberately pronounced by a court of ap- 
 peals, sitting in banc. It serves a very dif- 
 ferent office. It is to call the attention of 
 twelve men unfamiliar with legal distinc- 
 tions to whatever is necessary and proper 
 to guide them to a right decision in a par- 
 ticular case, and to nothing more. To make 
 almost any rule of law intelligible to the 
 ordinary juror, it must be expressed in a 
 few words. Qualifications and exceptions 
 which the case does not call for are worse 
 than useless, and those which are requisite it 
 may be better to supply later, by a separate 
 statement. A charge must be taken as a 
 whole in determining its natural effect" Per
 
 CHARGE 
 
 462 CHARITABLE USP^S, CHARITIES 
 
 Baldwin, J., in Sturdevant's Appeal, 71 
 Conn. 392, 42 Atl. 70. 
 
 See Thompson, Charging Juries. 
 
 CHARGEABLE. This word in its ordi- 
 nary acceptation, as applicable to the im- 
 position of a duty or burden, signifies capa- 
 ble of being charged, subject, or liable to be 
 charged, or proper to be charged, or legally 
 liable to be charged. Walbridge v. Wal- 
 bridge, 46 Vt. 625. 
 
 CHARGE D'AFFAIRES. CHARGE DES 
 AFFAIRES. In International Law. The ti- 
 tle of a diplomatic representative or minister 
 of an inferior grade, to whose care are con- 
 fided the affairs of his nation. The term is 
 usually applied to a secretary of legation or 
 other person in charge of an embassy or 
 legation during a vacancy in the office or 
 temporary absence of the ambassador or 
 minister. 
 
 He has not the title of minister, and is gen- 
 erally introduced and admitted through a 
 verbal presentation of the minister at his 
 departure, or through letters of credence 
 addressed to the minister of state of the 
 court to which he is sent. He has the es- 
 sential rights of a minister; 1 Kent 39, n.; 
 Du Pont v. Pichon, 4 Dall. (U. S.) 321, 1 L. 
 Ed. 851. The term charge - des affaires is 
 sometimes restricted to a charge d'affaires 
 ad interim, who is not accredited from one 
 Foreign Office to another, but who is mere- 
 ly in temporary charge of the affairs of the 
 mission. 
 
 CHARGES. The expenses which have 
 been incurred in relation either to a trans- 
 action or to a suit. Thus, the charges in- 
 curred for his benefit must be paid by a 
 hirer; the defendant must pay the charges 
 of a suit. In relation to actions, the term 
 includes something more than the costs, tech- 
 nically so called. 
 
 CHARITABLE USES, CHARITIES. Gifts 
 to general public uses, which may extend to 
 the rich as well as the poor. Camden, Ld. 
 Ch. in Ambl. 651; adopted by Kent, Ch., 
 Coggeshall v. Pelton, 7 Johns. Ch. (N. Y.) 
 294, 11 Am. Dec. 471; Lyndhurst, Ld. Ch., 
 in 1 Ph. Ch. 191; and U. S. Supreme Court 
 in Perin v. Carey, 24 How. (U. S.) 506, 16 
 L. Ed. 701; Bisp. Eq. § 124; Franklin v. 
 Armfield, 2 Sneed (Tenn.) 305. 
 
 Gifts to such purposes as are enumerated 
 in the act 43 Eliz. c. 4, or which, by anal- 
 ogy, are deemed within its spirit or intend- 
 ment. Boyle, Char. 17. 
 
 Such a gift was defined by Mr. Binney to 
 be "whatever is given for the love of God 
 or for the love of your neighbor, in the 
 catholic and universal sense — given from 
 these motives, and to these ends — free from 
 the stain or taint of every consideration 
 that is personal, private, or selfish." Vidal 
 v. Girard, 2 How. (U. S.) 128, 11 L. Ed. 205; 
 approved in Price v. Maxwell, 28 Pa. 35, and 
 
 Ould v. Hospital, 95 U. S. 311, 24 L. Ed. 
 450. 
 
 Lord MacXaghten said in [1S91] A. C. 531 : 
 Charity in its legal sense comprises four 
 principal divisions: trusts for the relief of 
 poverty, trusts for the advancement of edu- 
 cation, trusts for the advancement of relig- 
 ion, and trusts for other purposes beneficial 
 to the community not falling under any of 
 the preceding heads. 
 
 They had their origin under the Christian dispen- 
 sation, and were regulated by the Justinian Code. 
 Code Just. i. 3, De Episc. et Cler.; Domat, b. 2, t. 2, 
 § 6, 1, b. 4, t. 2, § 6, 2; 1 Eq. Cas. Abr. 96; Mr. Bin- 
 ney's argument on the Girard will, p. 40; Chaste! 
 on the Charity of the Primitive Churches, b. 1, c. 2, 
 b. 2, c. 10; Codex, donationem piarum, passim. 
 Under that system, donations for pious uses which 
 had not a regular and determined destination were 
 liable to be adjudged invalid, until the edicts of 
 Valentinian III. and Marcian declared that legacies 
 in favor of the poor should be maintained even if 
 legatees were not designated. Justinian completed 
 the work by sweeping all such general gifts into the 
 coffers of the church, to be administered by the 
 bishops. The doctrine of pious uses seems to have 
 passed directly from the civil law into the law of 
 England ; Inglis v. Sailor's Snug Harbor, 3 Pet. 
 (U. S.) 100, 139, 7 L. Ed. 617 ; Howe, Studies in the 
 Civil Law 68. It would seem that, by the English 
 rule before the statute, general and indefinite trusts 
 for charity, especially if no trustees were provided, 
 were invalid. If sustainable, it was under the king's 
 prerogative, exercising in that respect a power 
 analogous to that of the ordinary in the disposition 
 of bona vacantia prior to the Statute of Distribu- 
 tions; F. Moore 882, 890; Duke, Char. Uses 72, 362; 
 1 Vern. 224, note; 1 Eq. Cas. Abr. 96, pi. 8 ; 1 Ves. 
 Sen. 225 ; Hob. 136 ; Chittenden v. Chittenden, 1 Am. 
 L. Reg. 545. The main purpose of the stat. 43 Eliz. 
 c. 4 was to define the uses which were charitable, 
 as contradistinguished from those which, after the 
 Reformation in England, were deemed superstitious, 
 and to secure their application; Shelf. Mortm. 89, 
 103. The objects enumerated in the statute were, 
 "Relief of aged, impotent and poor people; mainte- 
 nance of sick and maimed soldiers and mariners, 
 schools of learning, free schools and scholars in 
 universities ; repairs of bridges, ports, havens, 
 causeways, churches, seabanks and highways; edu- 
 cation and preferment of orphans, relief, stock or 
 maintenance for houses of correction; marriage of 
 poor maids ; supportation, aid and help of young 
 tradesmen, handicraftsmen and persons decayed; 
 relief or redemption of prisoners or captives; aid or 
 ease of any poor inhabitants concerning payments 
 of fifteens, setting out of soldiers, and other taxes." 
 Subsequently it appears that this statute, as a 
 mode of proceeding, fell into disuse, although un- 
 der its influence and by its mere operation many 
 charities were upheld which would otherwise have 
 been void ; Shelf. Mortm. 378, 379, and notes ; Galle- 
 go's Ex'rs v. Attorney General 3 Leigh (Va.) 470, 24 
 Am. Dec. 650; Nelson, Lex Test. 137; Boyle, Char. 
 18 et seq.; 1 Burn, Eccl. Law, 317 a. Under this 
 statute, courts of chancery are empowered to ap- 
 point commissioners to superintend the application 
 and enforcement of charities ; and if, from any 
 cause, the charity cannot be applied precisely as the 
 testator has declared, such courts exercise the pow- 
 er in some cases of appropriating it, according to 
 the principles indicated in the devise, as near as 
 they can to the purpose expressed. And this is 
 called an application cy pres; 3 Washb. R. P. 514. 
 See Cy Pkes. 
 
 There is no need of any particular per- 
 sons or objects being specified; the general- 
 ity and indefiniteness of the object con- 
 stituting the charitable character of the do- 
 nation; Boyle, Char. 23. A charitable use, 
 when neither law nor public policy forbids,
 
 CHARITABLE USES, CHARITIES 463 CHARITABLE USES, CHARITIES 
 
 may be applied to almost anything that 
 tends to promote the well-doing and well-be- 
 ing of man; Terry, Trusts, § 687. 
 
 They embrace gifts to the poor of every 
 class, including poor relations, where the 
 intention is manifest; Soohan v. City of Phil- 
 adelphia, 33 Pa. 9; Franklin v. Armfleld, 2 
 Sneed (Term.) 305; Trustees of Dartmouth 
 College v. Woodward, 4 Wheat. (V. S.) 518, 
 4 L. Ed. 629; Allen v. McKean, 1 Sumn. 276, 
 Fed. Cas. No. 229; Chapin v. School District 
 No. 2, 35 N. II. 445; 7 Ch. D. 714; for the 
 poor of a county, "who by timely assistance 
 may be kept from being carried to the poor 
 house;" State v. Griffith, 2 Del. Ch. .•: , .il'; 
 Griffith v. State, id. 421; for the poor, though 
 the distribution of the fund is private and 
 to private persons; Ballard v. Chandler, 149 
 Mass. 532, 21 N. E. 951, 5 L. R. A. 104: for 
 every description of college and school; 
 Stevens v. Shippen, 28 X. J. Eq. 487; City 
 of Cincinnati v. McMicken, 6 Ohio C. C. 18S; 
 Dodge v. Williams, 46 Wis. 70, 1 X. W. 92, 
 50 N. W. 1103 ; Bedford v. Bedford's Adm'r, 
 99 Ky. 273, 35 S. W. 926; Handley v. Palm- 
 er, 103 Fed. 39, 43 C. C. A. 100; Howe v. 
 Wilson, 91 Mo. 45, 3 S. W. 390, 60 Am. Rep. 
 226 (that the state provides free education 
 for children will not render a private be- 
 quest for the same purpose void; Tincher v. 
 Arnold, 147 Fed. 665, 77 C. C. A. 649. 7 L. 
 R. A. (N. S.) 471, 8 Ann. Cas. 917); to all 
 institutions for the advancement of the 
 Christian religion ; Alexander v. Slavens, 7 
 B. Monr. (Ky.) 351 ; Gibson v. Armstrong, 
 7 B. Monr. (Ky.) 4S1 ; White v. Attorney 
 General, 39 N. C. 19, 44 Am. Dec. 92: Ap- 
 peal of Domestic & Foreign Missionary So- 
 ciety, 30 Pa. 425; to all churches; Inhabitants 
 of Princeton v. Adams, 10 Cush. (Mass.) 129; 
 In Case of St. Mary's Church, 7 S. & R. 
 (Pa.) 559; Johnson v. Mayne, 4 la. ISO; 
 Conklin v. Davis, 63 Conn. 377, 2S Atl. 537; 
 foreign missions ; Kinney v. Kinney's Ex'r, 
 S6 Ky. 610, 6 S. W. 593; for the education of 
 two young men for all coming time for the 
 Christian ministry ; Field v. Seminary, 41 
 Fed. 371; the advancement of Christianity 
 among the infidels; 1 Yes. Jr. 213; the bene- 
 fit of ministers of the gospel; Trustees of 
 Cory Universalist Society at Sparta v. Beat- 
 ty, 28 N. J. Eq. 570; for distributing Bibles 
 and religious tracts; Winslow v. Cummlngs, 
 3 Cush. (Mass.) 358; Pickering v. Shotwell, 
 10 Pa. 23; chapels, hospitals and orphan 
 asylums; Soohan v. City of Philadelphia, 3.': 
 Pa. 9; Fink v. Fink's Ex'r, 12 La. Ann. 301; 
 Attorney General v. Society, 8 Rich. Eq. (S. 
 C.) 190; Second Religious Society of Box- 
 ford v. Harriman, 125 Mass. 321; even when 
 discrimination is made in favor of members 
 of one religious denomination; Burd Orphan 
 Asylum v. School District, 90 Pa. 21; Trus- 
 tees v. Gutherie, 86 Va. 12,".. io S. E. 31S, 6 
 L. R. A. 321; dispensaries: I'.eeknian v. Peo- 
 ple, 27 Barb. (X. Y.) 260; public libraries; 
 Crerar v. Williams, 145 111. 625, 34 N. E. 
 
 467, 21 L. R. A. 454; Minns v. Ellin:: 
 Mass. 126, 66 X. E. 593, 5 L. R. 
 686, :i7 Am. St. Rep. 420; and the like: 
 well v. Mott. 2 Sandf. Ch. I 
 son v. Phillips. 14 Alio. 
 A: S. 594; 7 II. E. (' is. 124; friend!;. 
 32 On. I). 158; the Salvation \ r 
 D. 528; educational trusts; [1895] i ci 
 a volunteer corps; [1894] :: < 
 furtherance of the principles of food r 
 as advocated by certain named v 
 societies; [1898] 1 Ir. R. 4::i ; L'l T. L. E. 
 295; any relish, us society; [1893] 2 Ch. 41 
 (but not a Dominican convent, for the pro- 
 motion of private prayer by its own 
 bers; id. 51); a society for the prevention of 
 cruelty to animals; Minns v. Billings, 183 
 126, 66 X. E. 593, 5 L. I:. A. (N. S.) 
 686, 97 Am. St. Rep. 420 (but not for the 
 maintenance of animals: so also 35 C. C. 
 R. 545); 41 Ch. D. 552; [1895] 2 Ch. 501; a 
 drinking fountain for horses; In re E 
 of Graves, 242 111. 23, 89 X. E. 072. 24 E. R. 
 A. (X. S.) 2S3, 134 Am. St. Rep. 301', 17 Ann. 
 Cas. 137; to repair a sea dyke; 38 < 
 507; to provide a scholarship; [1895] 1 Ch. 
 480; to repair a churchyard; 33 Ch. D. 1S7; 
 to form a fund for pensioning old and worn- 
 out clerks of a certain firm; 48 W. It. 300; 
 to recompense such persons as shall an- 
 nually ring a peal of bells in a designated 
 parish to commemorate the restoration of 
 the monarchy to England; [1906] 2 Ch. 184; 
 to establish a cemetery; Hunt v. Toll 
 Vt. 48, 52 Atl. 1042; or maintain one; Rol- 
 lins v. Merrill, 70 N. H. 436, 48 Atl. 
 (contra, In re Corle, 61 X. J. Eq. 409, i^ 
 Atl. 1027) ; (but not to repair a tomb; D. R. 
 4 Eq. 521 ; Kelly v. Xichols, IS R. I. 62, 
 25 Atl. S40, 19 L. R. A. 413; nor to erect 
 a monument to a parent; 35 C. C. R. 505; 
 nor to keep a testator's clock in repair; 
 Kelly v. Xichols, 17 R. I. 306, 21 Atl. 906; 
 nor for the purpose of cleaning a painting 
 every four years; 70 L. J. Ch. 42; nor to en- 
 courage sport; [ispr,] 2 Ch. 649; nor a be- 
 quest to general public purposes; Crcsson's 
 Appeal, 30 Pa. 43.7: as supplying water or 
 light to towns, building roads and hi . 
 keeping them in repair, etc.; Town of Ham- 
 den v. Rice, 24 Conn. 350;) and P. the ad- 
 vancement of religion and other charitable 
 purposes general in their character; Derby v. 
 Derby, 1 R. 1. 411: Fink v. Fink's Ex'r, 12 
 Ea. Ann,. 301; Ilullinan v. Honcomp, 5 Ohio 
 st. 237; Brendle v. German Reformed Con- 
 gregation, ;;;; Pa. 415; Bethlehem Boi 
 v. Eire Co., 81 Pa. 445; Ecu is" Estate, 
 Pa. 477. 2:» Atl. 878; Sweeney v. Samps 
 End. 465; E. R. 10 Eq. 210; E. R. 1 Eq. 585; 
 E. R. 4 Ch. App. 309; E. R. 20 Eq. 
 Holmes v. 226, :;i ' 
 
 190; Hadden v. Dandy, 51 X". J. Eq. 1" 
 Atl. 464, 32 E. R. A. 625; [1- 2 ( ,.. 41; 
 Union Pac. R. Co. v. Arti<i. 60 Fed. 365, 
 C. C. A. 14. 23 L. R. A. 581; Tudor, Char. 
 Tr.; or a devise may be made to a municipal
 
 CHARITABLE USES, CHARITIES 464 CHARITABLE USES, CHARITIES 
 
 corporation for charitable uses; Vidal v. Gir- 
 ard, 2 How. (U. S.) 128, 11 L. Ed. 205; Bark- 
 ley v. Donnelly, 112 Mo. 561, 19 S. W. 305; 
 Skinner v. Harrison Tp., 116 Ind. 139, 18 N. 
 E. 529, 2 L. R. A. 137; and a city may re- 
 fuse to accept such a bequest ; Dailey v. City 
 of New Haven, 60 Conn. 314, 22 Atl. 945, 14 
 L. R. A. 69. 
 
 In determining whether or not a gift Is 
 charitable, courts will consider the nature of 
 the gift, rather than the motives of the do- 
 nor; In re Smith's Estate, 181 Pa. 109, 37 Atl. 
 114. 
 
 When a testator creates a trust which Is 
 invalid because it is one which the law will 
 not permit to be carried out, the trust fails; 
 Fairchild v. Edson, 154 N. Y. 199, 48 N. E. 
 541, 61 Am. St. Rep. 609; Jackson v. Phil- 
 lips, 14 Allen (Mass.) 539; Campbell's Heirs 
 v. McArthur, 4 N. C. 557 ; State v. Griffith, 2 
 Del. Ch. 392; Zeisweiss v. James, 63 Pa. 465, 
 3 Am. Rep. 55S; De Camp v. Dobbins, 31 
 N. J. Eq. G71. 
 
 A bequest for a religious purpose is prima 
 facie a bequest for a charitable purpose; 
 [1893] 2 Ch. 41. In England bequests for 
 masses for the repose of the testator's soul 
 are void as being for superstitious uses; 2 
 Drew. 417 ; 2 Myl. & K. 684. In the United 
 States they have been held good charitable 
 trusts ; Petition of Schouler, 134 Mass. 426; 
 Appeal of Seibert, 18 W. N. C. (Pa.) 276; 
 Hoeffer v. Clogan, 171 111. 462, 49 N. E. 527, 
 40 L. R. A. 730, 63 Am. St. Rep. 241. In New 
 York, though they were held charitable, they 
 were held void for want of a specific legatee; 
 Holland v. Alcock, 108 N. Y. 312, 16 N. E. 
 305, 2 Am. St. Rep. 420; Gilman v. McArdle, 
 99 N. Y. 451, 2 N. E. 464. In Alabama the 
 gift was held not charitable ; Festorazzi v. 
 Church, 104 Ala. 327, IS South. 394, 25 L. R. 
 A. 360, 53 Am. St. Rep. 48; so in California ; 
 In re Lennon's Estate, 152 Cal. 327, 92 Pac. 
 870, 125 Am. St. Rep. 58, 14 Ann. Cas. 1024. 
 Such a bequest was upheld, not as a charity, 
 but as an expenditure directed by the tes- 
 tator for services rendered to him ; Moran v. 
 Moran, 104 la. 216, 73 N. W. 617, 39 L. R. A. 
 204, 65 Am. St. Rep. 443. It is upheld, not 
 as a charitable, but as a religious use; Ap- 
 peal of Rhymer's, 93 Pa. 142, 39 Am. Rep. 
 736. Money given by his followers to the 
 founder of a church constitutes a trust fund ; 
 Holmes v. Dowie, 148 Fed. 634. If given "for 
 poor souls," it is a public charity, not being 
 restricted to designated persons ; Ackerman 
 v. Fichter (Ind.) 101 N. E. 493. 
 
 In Ireland gifts for masses are generally 
 held good charitable bequests; Ir. R. 2 
 Eq. 321. They were held not to be bequests 
 for any purpose merely charitable, within 
 the exception of a statute imposing a legacy 
 duty; 11 Ir. R. 10 C. L. 104; 21 L. R. Ir. 
 480. Such a bequest was held not to be an 
 attempt to create a perpetuity; 21 L. R. Ir. 
 138 ; but that it is such was held in 25 L. R. 
 \i. 38S; [1896] 1 Ir. 418; and that the gift 
 
 was void for the want of a definite cestui que 
 trust was held in Ir. R. 11 Eq. 433. 
 
 A charitable devise may become void for 
 uncertainty as to the beneficiary; Society of 
 the Most Precious Blood v. Moll, 51 Minn. 
 277, 53 N. W. 648; Brennan v. Winkler, 37 
 S. C. 457, 16 S. E. 190; Yingling v. Miller, 77 
 Md. 104, 26 Atl. 491; Johnson v. Johnson, 
 92 Tenn. 559, 23 S. W. 114, 22 L. R. A. 179, 36 
 Am. St. Rep. 104; Simmons v. Burrell, 8 
 Misc. 388, 28 N. Y. Supp. 625. The decision 
 that the appropriation for the World's Co- 
 lumbian Exposition was a charitable use ; U. 
 S. v. Exposition, 56 Fed. 630; was reversed 
 by the circuit court of appeals, which held 
 that, being made for the benefit of a local 
 corporation, it did not constitute a charitable 
 trust, although aiding a great public enter- 
 prise; World's Columbian Exposition v. U. 
 S., 56 Fed. 654, 6 C. C. A. 58. 
 
 When the purposes of a charity may be 
 best sustained by alienating the specific prop- 
 erty bequeathed and investing the proceeds 
 in a different manner, a court of equity has 
 jurisdiction to direct such sale and invest- 
 ment, taking care that no deviation of the 
 gift be permitted ; City of Newark v. Stock- 
 ton, 44 N. J. Eq. 179, 14 Atl. 630; Peter v. 
 Carter, 70 Md. 139, 16 Atl. 450. 
 
 Charities in England were formerly in- 
 terpreted, sustained, controlled, and applied 
 by the court of chancery, in virtue of its 
 general jurisdiction in equity, aided by the 
 stat. 43 Eliz. c. 4 and the prerogative of the 
 crown ; the latter being 'exercised by the lord 
 chancellor, as the delegate of the sovereign 
 acting as parens patriae; Spence, Eq. Jur. 
 439, 441; Bartlet v. King, 12 Mass. 537, 7 
 Am. Dec. 99. The subject has since been 
 regulated by various statutes ; the Charitable 
 Trusts Act of 1853, 10 & 17 Vict. c. 137, 
 amended by various subsequent acts down to 
 1S94; Tud. Char. Tr. part iii. ; 3d ed. By 
 the Toleration Act, 1 Wm. & M. c. 18, chari- 
 table trusts for promoting the^ religious opin- 
 ions of Protestant Dissenters have been held 
 valid; 2 Ves. Sen. 273. Roman Catholics 
 share in their benefits; 2 & 3 Will. IV. c. 
 115 ; and Jews, by 9 & 10 Vict. c. 59, § 2. 
 
 The weight of judicial authority in Eng- 
 land was in favor of the doctrine which, as 
 will be seen, prevails in this country, that 
 equity exercised an inherent jurisdiction over 
 charitable uses independently of the statute 
 of Elizabeth ; that the statute did not create, 
 but was in aid of, the jurisdiction. In sup- 
 port of this conclusion are found such judges 
 as Ld. Ch. Northington, in 1 Eden 10; Amb. 
 351; Sir Jos. Jekyll, in 2 P. Wms. 119; Ld. 
 Ch. Redesdale, in 1 Bligh 347 ; Ld. Ch. Hard- 
 wicke, in 2 Ves. Sr. 327; Ld. Keeper Finch, 
 in 2 Lev. 167 ; Ld. Ch. Sugden, in 1 Dr. & W. 
 258; Ld. Ch. Somers, in 2 Vern. 342; Ld. 
 Ch. Eldon, in 1 Bligh 35S, and 7 Ves. 36; 
 Wilmot, C. J., in Wilmot's Notes 24; Ld. 
 Ch. Lyndhurst, in Bligh 335; and Sir John 
 Leach, in 1 Myl. & K. 376.
 
 CHARITABLE USES, CHARITIES Hi 
 
 CHARITALI.l iARITIES 
 
 The stat. 43 Eliz. c. 4 has not been re- 
 enacted or strictly followed in the United 
 States. In some states it has been adopted 
 by usage ; but, with several striking excep- 
 tions, the decisions of the English Chancery 
 upon trusts for charity have furnished the 
 rule of adjudication in our courts, without 
 particular reference to the fact that the most 
 remarkable of them were only sustainable 
 under the peculiar construction given to cer- 
 tain phrases in the statute; Boyle, Char. 18. 
 The opinion prevailed extensively in this 
 country that the validity of charitable en- 
 dowments and the jurisdiction of courts of 
 equity in such cases depended upon that 
 statute. In the case of the Baptist Associa- 
 tion v. Hart, 4 Wheat (U. S.) 1, 4 L. Ed. 
 499, the court adopted that view and accept- 
 ed the conclusion that there was at common 
 law no jurisdiction of charitable uses exer- 
 cised in chancery, although in afterwards re- 
 viewing that decision an effort was made to 
 distinguish the case by the two features that 
 such cases are not recognized by the law of 
 Virginia, where it arose, and that it was a 
 donation to trustees incapable of taking, with 
 beneficiaries uncertain and indefinite ; Vidal 
 v. Girard, 2 How. (U. S.) 12S, 11 L. Ed. 205. 
 These views were assailed in 1833 by Bald- 
 win, J. (Magill v. Brown, Bright. 346, Fed. 
 Cas. No. 8,952), in 1S35 in Burr's Ex'rs v. 
 Smith, 7 Vt. 241, 29 Am. Dec. 154, and in 
 1844 by Mr. Binney in the Girard will case 
 In Vidal v. Girard, 2 How. (U. S.) 12S, 11 
 L. Ed. 205. In that case there was furnished 
 a memorandum of fifty cases extracted from 
 the then recently published chancery calen- 
 dars, in which the jurisdiction had been ex- 
 ercised prior to the stat. of 43 Eliz. (2 How. 
 [U. S.] 155, note) ; and although the accu- 
 racy of this list was challenged by Mr. 
 Webster in argument; (id. 179 note), the 
 court, per Story, J., accepted it to "establish, 
 in the most satisfactory and conclusive man- 
 ner," the conclusion stated. Baldwin, J., 
 also enumerated forty-six cases of the en- 
 forcement of such trusts independently of 
 the statute; Magill v. Brown, Bright. 346, 
 Fed. Cas. No. 8,952. The doctrine was fully 
 adopted by the United States supreme court 
 in the Girard will case, and has been since 
 adhered to; Ould v. Hospital, 95 U. S. 304, 
 24 L. Ed. 450. It is now conceded as settled 
 that courts of equity have an inherent and 
 original jurisdiction over charities, independ- 
 ent of the statute; Perry. Trusts § 694; 
 Tappan v. Deblois, 45 Me. 122; Chambers v. 
 St. Louis, 29 Mo. 543; Paschal v. Acklin, 27 
 Tex. 173; State v. Griffith, 2 DeL Ch. 392; 
 Griffith v. State, id. 421, 463; Kronshage v. 
 Varrell, 120 Wis. 161, 97 N. W. 92S. 
 
 In Virginia and New York, that statute, 
 with all its consequences, seems to have 
 been repudiated; Gallego's Ex'rs v. Attorney 
 General, 3 Leigh (Va.) 450, 24 Am. Dec. 650; 
 Cottman v. Grace, 112 N. Y. 299, 19 N. E. 
 839, 3 L. R. A. 145. So in North Carolina, 
 Bouv.— 30 
 
 Connecticut, Maryland, and the District of 
 
 Columbia; McAuley v. Wilson, 16 N. C 
 
 18 Am. Dec. 587; Griffin v. Graham, 8 N. C. 
 
 96, 9 Am. Dec. 619; Bridges v. Pleasants, 39 
 
 N. C. 26, 44 Am. Dec. 94; Greene v. Dennis, 
 
 6 Conn. 293, 16 Am. Dec. 58; White v. 
 
 22 Conn. 31 ; Dashiell v. Attorney General, 
 
 5 Ha it. & J. (Md.) 392, 9 Am. Di 
 
 6 liarr. & .7. (Md.) l; Wilderman v. Balti- 
 more, 8 Md. 551; Halsey v. Church, 75 Mil. 
 275, 23 Atl. 781; Ould v. Hospital, 95 
 
 304, 24 L. Ed. 450. In Georgia, Illinois. Indi- 
 ana, Iowa, Kentucky, Massachusetts, Rhode 
 Island, Vermont, and perhaps some 
 states, the English rule is acted on; McCord 
 v. Ochiltree, 8 Blackf, (Ind.) 15; Bs 
 Church v. Church, IS B. Monr. (Ky.t 
 Reall v. Fox. 4 6a. Inl ; Going v. Emery, 16 
 Pick. (Mass.) 107, 26 Am. Dec. 645; Derby 
 v. Derby, 4 R. I. 414; Fink v. Fink's Ex'r, 12 
 La. Ann. 301; Burr's Ex'rs v. Smith, 7 Vt. 
 241, 29 Am. Dec. 154; Trustees of Phila- 
 delphia Baptist Ass'n v. Hart's Ex'rs, 4 
 Wheat. (U. S.) 1, 4 L. Ed. 499; Vidal v. 
 Girard's Ex'rs, 2 How. (U. S.) 127, 11 L. Ed. 
 205; Perin v. Carey, 24 How. (U. S.) 405, 
 16 L. Ed. 701; Crerar v. Williams, 145 111. 
 625, 34 N. E. 467, 21 L. R. A. 454. See Gil- 
 man v. Hamilton, 16 111. 225; Dickson v. 
 Montgomery, 1 Swan (Tenn.) 348. While 
 not in force as a statute in Pennsylvania, it 
 is embodied as to its principles in the com- 
 mon law of that state ; Fire Ins. Patrol v. 
 Boyd, 120 Pa. 624, 15 Atl. 553, 1 L. R. A. 417, 
 6 Am. St. Rep. 745; Dulles's Estate, 2!^ 
 102, 67 Atl. 49, 12 L. R. A. (X. S.) 1177. 
 Connecticut has a substitute statute for that 
 of 43 Eliz., passed in 16S4, which is more 
 strict than the English law in that it re- 
 quires certainty in the person to b< 
 or at least a certain and definite class of 
 persons, with an ascertained mode of select- 
 ing them ; Adge v. Smith, 44 Conn. 60, 20 
 Am. Rep. 424. 
 
 It is said that charitable uses are favorites 
 with courts of equity; the construction of 
 all instruments, when they are concerned, is 
 liberal in their behalf; Ould v. Hospital. '.'."> 
 U. S. 313, 24 L. Ed. 450; and even the rule 
 against perpetuities is relaxed for their bene- 
 fit ; id.; [1S91] 3 Ch. 1T.2: Woodruff v. 
 Marsh, 63 Conn. 125, 26 Atl. S46, 3S Am. St. 
 Rep. 346; Bisph. Eq. "§ 133 J Perin v. Carey. 
 24 How. (U. S.) 495, 16 L. Ed. 701 ; Brown 
 v. Baptist Society, 9 R. I. 177: contra, Bas- 
 com v. Albertson, 34 N. Y. 5j>!. See also 
 Gray, Terp. § 5S9. But if a gift to charity is 
 made to depend on a condition precedent, the 
 event must occur within the rule against 
 perpetuities; [1894] 3 Ch. 265; except where 
 the event is the divesting of another charity; 
 [1S91] 3 Ch. 252. 
 
 An immediate gift to charity is valid, al- 
 though the particular application of the fund 
 directed by the will may not of necessity take 
 effect within any assignable limit of time, or 
 may never take effect at all, except on the
 
 CHARITABLE USES, CHARITIES 466 CHARITABLE USES, CHARITIES 
 
 occurrence of events in their essence con- 
 tingent and uncertain ; while on the other 
 hand, a gift in trust for charity which is 
 conditional upon a future and uncertain 
 event is subject to the same rules as any 
 other estate depending on its coming into 
 existence upon a condition precedent ; 74 L. 
 J. Ch. 354; [1905] 1 Ch. 669, 92 L. T. 715. 
 
 A gift may be made to a charity not in esse 
 at the time; id.; Perry, Trusts § 73G ; Dodge 
 v. Williams, 46 Wis. 70, 1 N. W. 92, 50 N. W. 
 1103. See Booth v. Baptist Church, 126 N. 
 Y. 215, 28 N. E. 238 ; Hayes v. Pratt, 147 U. 
 S. 557, 13 Sup. Ct. 503, 37 L. Ed. 279. And a 
 gift for specific charitable purposes will not 
 fail for want of trustees ; Sears v. Chapman, 
 158 Mass. 400, 33 N. E. 604, 35 Am. St. Rep. 
 502; Municipality of Ponce v. Roman Cath- 
 olic Apostolic Church, 210 U. S. 296, 28 Sup. 
 Ct. 737, 52 L. Ed. 1068. See Dammert v. 
 Osborn, 140 N. Y. 30, 35 N. E. 407. 
 
 Generally, the rules against accumulations 
 do not apply; Perry, Trusts § 738; Odell v. 
 Odell, 10 Allen (Mass.) 1 ; City of Philadel- 
 phia v. Girard's Heirs, 45 Pa. 9, 84 Am. Dec. 
 470; as accumulations for charity, for a 
 longer period than is allowed by the rule 
 against perpetuities will be upheld ; Brig- 
 ham v. Hospital, 126 Fed. 796; St. Paul's 
 Church v. Attorney General, 164 Mass. 188, 
 41 N. E. 231. A bequest of money to be 
 accumulated until the fund, with any addi- 
 tions from other sources, should suffice to 
 pay the state debt, was held void as exceed- 
 ing the limitation of the rule against remote- 
 ness and accumulations ; Russell v. Trust 
 Co., 171 Fed. 161. 
 
 Where there is no trustee appointed or 
 none capable of acting, the trust will be sus- 
 tained, and a trustee appointed ; 3 Hare 191 ; 
 Inglis v. Sailor's Snug Harbor, 3 Pet. (U. S.) 
 99, 7 L Ed. 617. In New York a certain 
 designated beneficiary was essential to the 
 creation of a valid trust and the cy pres doc- 
 trine formerly was not accepted; see Power 
 v. Cassidy, 79 N. Y. 602, 35 Am. Rep. 550, 
 said to reach the limit of uncertainty in that 
 state, and In re O'Hara's Will, 95 N. Y. 418, 
 47 Am. Rep. 53, and Holland v. Alcock, 108 
 N. Y. 312, 16 N. E. 305, 2 Am. St. Rep. 420, 
 commenting on that case and reasserting the 
 general rule in New York as stated ; Tilden 
 v. Green, 130 N. Y. 29, 28 N. E. 880, 14 L. R. 
 A. 33, 27 Am. St. Rep. 487; a bequest in 
 which the beneficiary is not designated and 
 the selection thereof is delegated to trustees 
 with complete discretionary power was held 
 invalid, and the uncertainty as to beneficia- 
 ries could not be cured by anything done by 
 the trustees to execute it ; id. 
 
 But by New York Laws of 1S93, c. 701, it 
 is provided that if in an instrument creating 
 a gift, grant, devise, or bequest there is a 
 trustee named to execute the same, the legal 
 title to the property shall vest in such trus- 
 tee, and if no trustee be named, the title 
 shall vest in the supreme court; Bowman v. 
 
 Domestic & Foreign Missionary Society, 182 
 N. Y. 498, 75 N. E. 535 ; Allen v. Stevens, 161 
 N. Y. 122, 55 N. E. 568. The effect of this 
 act is to restore the ancient doctrine of char- 
 itable uses and trusts as a part of the laws 
 of New York; id.; to confer all power over 
 charitable trusts and trustees on the supreme 
 court and to require the attorney general to 
 represent the beneficiaries in cases within 
 the statute as was the practice in England ; 
 Rothschild v. Goldenberg, 58 App. Div. 499, 
 69 N. Y. Supp. 523. 
 
 A testamentary gift for a charity to an un- 
 incorporated association afterwards incor- 
 porated is sometimes sustained ; as when 
 the devise does not vest until after the incor- 
 poration ; Plymouth Soc. of Milford v. Hep- 
 burn, 57 Hun 161, 10 N. Y. Supp. 817; but 
 otherwise the incapacity to take cannot be 
 cured by subsequent incorporation or amend- 
 ment ; Lougheed v. Dykeman's Baptist 
 Church and Soc, 129 N. Y. 211, 29 N. E. 249, 
 14 L. R. A. 410 and note. A devise to a 
 charity, however, is held valid where future 
 incorporation is provided for or contem- 
 plated ; id.; Field v. Theological Seminary, 
 41 Fed. 371 ; Trustees of Storrs Agricultural 
 Schpol v. Whitney, 54 Conn. 342, 8 Atl. 141 ; 
 Miller v. Chittenden, 4 la. 252 ; Swasey v. 
 Bible Soc, 57 Me. 523 ; Burrill v. Boardman, 
 43 N. Y. 254, 3 Am. Rep. 694; Kinnaird v. 
 Miller's Ex'r, 25 Gratt. (Va.) 107. Under 
 the civil law, a similar rule seems to have 
 prevailed, and gifts for pious uses might be 
 made to a legal entity to be established by 
 the state after the testator's death ; Mack- 
 eldy, Civ. Law § 157 ; Inglis v. Sailor's Snug 
 Harbor, 3 Pet. (U. S.) 100, 7 L. Ed. 617; 
 Milne's Heirs v. Milne's Ex'rs, 17 La. 46; 
 Howe, Studies in the Civil Law 68. 
 
 A legacy to a corporation for general cor- 
 porate purposes is in some cases held to 
 create a trust ; De Camp v. Dobbins, 29 N. 
 J. Eq. 36 ; 1 Dr. & War. 258 ; President, etc., 
 of Harvard College v. Society, 3 Gray 
 (Mass.) 280; in others not a trust but a 
 gift with conditions annexed as to its ex- 
 penditure; Woman's Foreign Missionary So- 
 ciety of Methodist Episcopal Church v. Mitch- 
 ell, 93 Md. 199, 48 Atl. 737, 53 L. R. A. 711 ; 
 In re Griffin's Will, 167 N. Y. 71, 60 N. E. 
 2S4; Bird v. Merklee, 144 N. Y. 544, 39 N. 
 E. 645, 27 L. R. A. 423. 
 
 A gift to a perpetual institution not char- 
 itable is not necessarily bad. The gift is 
 good if it is not subject to any trust that 
 will prevent the existing members of the 
 association from dealing with it as they 
 please, or if it can be construed as a gift to 
 or for the benefit of the individual members 
 of the association. If the gift is one which 
 by the terms of it, or which by reason of 
 the constitution of the association in whose 
 favor it is made, tends to a perpetuity, the 
 gift is bad ; 70 L. J. Ch. 631 ; [1901] 2 Ch. 
 110. 
 
 A gift to a society the object of which was
 
 CHARITABLE USES, CHARITIES 4G7 CHARITABLE USES, CHARI . 
 
 the employment of its funds for mutual be- 
 nevolences anions its members and their fami- 
 lies was held not a charitable use under the 
 common law of Pennsylvania or the statute 
 of Elizabeth; Babb v. Reed, 5 Rawle (Pa.) 
 151, 28 Am. Dec. C.50; Swift's Ex'rs v. Socie- 
 ty, 73 Pa. 362. 
 
 In England a devise or bequest for be- 
 nevolent purposes is held to be too indefinite 
 and therefore void; 3 Mer. 17; 9 V< 
 but though wider than charity in legal signif- 
 ication ; Norris v. Thomson's Ex'rs, 19 N. .7. 
 Eq. .".07; its meaning may be narrowed by 
 the context; De Camp v. Dobbins, .".l X. J. 
 Eq. 0!)."). Any act of kj 
 good will, or friendship may properly i>.> de- 
 scribed as benevolent; Suter v. Ililliard, 132 
 Mass. 413, 42 Am. Rep. -HI; and it has been 
 held that whatever may be the meaning of 
 the word when used alone in a bequest in 
 connection with charity, it is synonymous 
 with it; Saltonstall v. Sanders, 11 Allen 
 (Mass.) 446. A fund for providing oysters 
 for benchers at one of the Inns of. Court, 
 however benevolent, would hardly be called 
 charitable; [1891] A. C. 580. A gift to an 
 archbishop of property to be used as he; 
 "may judge most conducive to the good of 
 religion in this diocese," is not a gift for 
 "religious purposes" and is Invalid; 10(3 L. 
 T. 394 (P. C). A bequest to executors to 
 distribute the property among benevolent ob- 
 jects is not too indefinite to be permitted to 
 stand; Dtilles's Estate, 218 Pa. 1G2, 67 Atl. 
 49, 12 L. R. A. (N. S.) 1177. 
 
 Legacies to pious or charitable uses are 
 not, by the law of England, entitled to a 
 preference in distribution ; although such 
 was the doctrine of the civil law. Nor are 
 they in the United States, except by special 
 statutes. 
 
 In jurisdictions which have adopted the 
 statute of uses, or which accept the doctrine 
 of original jurisdiction in equity, trusts oth- 
 erwise valid, especially when in aid of reli- 
 gious, educational, or charitable objects, are 
 not void because of lack of corporate capaci- 
 ty in the beneficiary ; Appeal of Evangelical 
 Ass'n, 35 Pa. 316 ; Conklin v. Davis, 63 Conn. 
 377, 28 Atl. 537 ; Tappan v. Deblois, 45 Me. 
 122 ; Lewis v. Curnutt, 130 la. 423, 106 N. W. 
 914; Burbank v. Whitney, 24 Pick. (Mass.) 
 146, 35 Am. Dec. 312; Parker v. Cowell, 16 
 N. II. 119; Mason's Ex'rs v. M. E. Church, 
 27 N. J. Eq. 47. 
 
 In Evangelical Ass'n's Appeal, supra, it 
 was held that a bequest to an unincorporated 
 religious society, not upon any defined chari- 
 ty, or for any specified charitable use, was 
 valid ; in such case it is necessary only to 
 name the legatee; such a society can take 
 without any direction that the legacy (or 
 gift) should be expended for charity purpos- 
 es; its own character determines the char- 
 acter of the gift. Strong, J. (a great au- 
 thority on this law), in delivering the opinion 
 of the court, cited 3 Russ. 142, where it was 
 
 held that in a bequest to a purely elm; 
 
 corporation the court will • 
 
 without requiring that be settled 
 
 for its distribution; also, i Si & stu. 4.''., 
 
 where a legacy to an ui 
 
 table institution, to become part of i! 
 
 oral funds, was upheld. See 
 
 Ex'rs v. Smith, 7 Vt. 241, 29 An 
 
 He also cited with disapproval thi 
 
 to the contrary in 1 Jarm. Wills \\<:\. The 
 
 also held that it makes no 
 that the members of such society are la 
 non-residents. 
 
 A devise for the benefit of an unincon 
 ed association of individuals unnamed, which 
 may increase and add to its number, or lose 
 
 fh or withdrawal, and the membei 
 of which is not known, and is indeterminate, 
 is held void for uncertainty; Miller v. 
 Ahrens, 150 Fed. 644. In jurisdictions in 
 which the statute of Elizabeth i> not a part 
 of the existing laws, only incorporated bodies 
 can take charitable bequests; Mount v. Tut- 
 tle, 183 N. Y. 358, 76 N. E. 873, 2 L. R. A. 
 (N. S.) 428; Kain v. Gibboney, 101 U. S. 
 362, 25 L. Ed, 813 (where the opinion was 
 also by Strong, J., then a member of that 
 court) ; Fifield v. Van Wyck, 9! Va. ."."7, 27 
 S. E. Hi',, 64 Am. St. Rep. 745; Lane v. Eaton. 
 69 Minn. 141, 71 N. W. 1031, 38 L. It. A. 
 669, 65 Am. St. Rep. 559; Rhodes v. Rhodes, 
 88 Tenn. 637, 13 S. W. 590. 
 
 Where the association is not charitable, 
 the gift is void within the doctrine of Mor- 
 ice v. Bishop of Durham, 9 Ves. 399: ••There 
 can be no trust over the exercise of which 
 this court will not assume a control ; for an 
 uncontrollable power of disposition would be 
 ownership, not trust. If there be a clear 
 trust, but for uncertain objects, the property 
 that is the subject of the trust is undis] 
 of; and the benefit of such trust must result 
 to those to whom the law gives the 0wn< r- 
 ship in default of disposition by the owner. 
 But this doctrine does not hold good with re- 
 gard to trusts for charity. Every other trust 
 must have a definite object. There must be 
 somebody in whose favor the court can de- 
 cree a performance." This doctrine was 
 applied where the gift was for the use and 
 benefit of a convent, not charitable hut reli- 
 gious; 11 L. R. Ir. 236; to an individual 
 with the condition that he spend his time in 
 retirement and constant devotion; L R. 12 
 Eq. 574. 
 
 Where a statute declares void a gift by 
 will to a charity if made within less than "<> 
 days of the death, a gift to a trust company 
 to take effect it" a legacy to charities should 
 be void under the act. was held void because 
 it was clearly made to carry out the bequest 
 to the charities designated in the will ; In re 
 Stirk's Eslate. 232 Pa. 98, SI Atl. 1^7. 
 
 See, generally, 3 Washburn, Real Prop. 
 687, 690; Boyle, char.; Duke. Char. Uses; 
 2 Kent 361 ; 4 id. 616 ; 2 Ves. Ch. 52. 272 ; 
 6 id. 404; 7 id. 86; Ambl. 715; 2 Atk. 88;
 
 CHARITABLE USES, CHARITIES 468 CHARITABLE USES, CHARITIES 
 
 Barr v. Weld, 24 Pa. 84; Mayor, etc., of 
 Philadelphia v. Elliott, 3 Rawle (Pa.) 170; 
 Witman v. Lex, 17 S. & R. (Pa.) 88, 17 Am. 
 Dec. 644 ; Gass & Bonta v. Wilhite, 2 Dana 
 (Ky.) 170, 26 Am. Dec. 446; McCartee v. 
 Orphan Asylum Soc, 9 Cow. (N. Y.) 437, 18 
 Am. Dec. 516; Kniskern v. Lutheran 
 Churches, 1 Sandf. Ch. (N. T.) 439; Yates 
 v. Yates, 9 Barb. (N. Y.) 324; Voorhees v. 
 Church, 17 Barb. (N. Y.) 104; Brett, Lead. 
 Cas. Mod. Eq. ; Trustees of Mclntire- Poor 
 School v. Canal & Mfg. Co., 9 Ohio 203, 34 
 Am. Dec. 436 ; Hullman v. Honcomp, 5 Ohio 
 St. 237 ; Town of Hamden v. Rice, 24 Conn. 
 350; Cincinnati v. White, 6 Pet. (U. S.) 435, 
 8 L. Ed. 452 ; Pawlet v. Clark, 9 Cra. (U. S.) 
 331, 3 L. Ed. 735; Dwight's argument, Rose 
 will case ; Dwight's Charity Cases ; a full 
 article on Jurisdiction of the Court of Chan- 
 cery to Enforce Charitable Uses, 1 Am. L. 
 Reg. (N. S.) 129, 321, 385; Dashiell v. At- 
 torney-General, 5 Harr. & J. (Md.) 392, 9 
 Am. Dec. 577. See 31 Am. L. Reg. 123, 235, 
 and 5 Harv. L. Rev. 389, for discussion of 
 the Tilden will case, cited supra; 15 id. 509; 
 and also Potter will case, Houston v. Town- 
 send, 1 Del. Ch. 421, 12 Am. Dec. 109, in 
 which the arguments are very fully reported 
 and the authorities collected on both sides of 
 the questions involved in this title. 
 
 Usually a charitable corporation is not 
 liable in damages for personal injuries re- 
 sulting from the torts of its officers and 
 agents: Abston v. Academy, 118 Tenn. 24, 
 102 S. W. 351, 11 L. R. A. (N. S.) 1179 ; Fire 
 Ins. Patrol v. Boyd, 120 Pa. 624, 15 Atl. 553, 
 1 L. R. A. 417, 6 Am. St. Rep. 745 ; Gable v. 
 Sisters of St. Francis, 227 Pa. 254, 75 Atl. 
 10S7, 136 Am. St. Rep. 879; Farrigan v. Pe- 
 vear, 193 Mass. 147, 78 N. E. 855, 7 L. R. A. 
 (N. S.) 481, 118 Am. St. Rep. 484, 8 Ann. 
 Cas. 1109; Powers v. Hospital, 109 Fed. 294, 
 47 C. C. A. 122, 65 L. R. A. 372; Lea veil v. 
 Asylum, 122 Ky. 213, 91 S. W. 671, 4 L. R. A. 
 (N. S.) 269, 12 Ann. Cas. 827; Thornton v. 
 Franklin Square House, 200 Mass. 465, 86 
 N. E. 909, 22 L. R. A. (N. S.) 486. But a 
 public charitable reformatory is held liable 
 to one whom it imprisons against her con- 
 sent and without lawful authority; Gallon 
 v. House of Good Shepherd, 158 Mich. 361, 
 122 N. W. 631, 24 L. R. A. (N. S.) 286, 133 
 Am. St. Rep. 3S7 ; a hospital is not exempt 
 from liability for negligent injury to an em- 
 ployee merely because it was founded by 
 property given for charitable purposes ; He- 
 wett v. Hospital, 73 N. H. 556, 64 Atl. 190, 
 7 L. R. A. (N. S.) 496. So a hospital which 
 is an adjunct to a medical school and con- 
 ducted for profit is liable for negligent in- 
 jury to an employee ; University of Louis- 
 ville v. Hammock, 127 Ky. 564, 106 S. W. 
 219, 14 L. R. A. (N. S.) 784, 128 Am. St. Rep. 
 355 ; as is one maintained by a railroad 
 company for its employees to which they are 
 obliged to contribute; Phillips v. R. Co., 211 
 Mo. 419, 111 S. W. 109, 17 L. |R. A. (N. S.) 
 
 1167, 124 Am. St. Rep. 786, 14 Ann. Cas. 742 ; 
 and a religious corporation is liable to one 
 injured in repairing its property, through 
 the negligence of its servants in furnishing 
 unsafe scaffolding ; Bruce v. Central M. E. 
 Church, 147 Mich. 230, 110 N. W. 951, 10 L. 
 R. A. (N. S.) 74, 11 Ann. Cas. 150. Its prop- 
 erty cannot be sold under execution on a 
 judgment rendered for the nonfeasance, mis- 
 feasance or malfeasance of its agents or 
 trustees ; Fordyce v. Ass'n, 79 Ark. 550, 96 
 S. W. 155, 7 L. R. A. (N. S.) 485. 
 
 A religious or charitable corporation is not 
 exempt from liability for negligent injury 
 to one coming upon its premises to perform 
 service for it; Hordern v. Salvation Army, 
 199 N. Y. 233, 92 N. E. 626, 32 L. R. A. (N. 
 S.) 62, 139 Am. St. Rep. 889; Kellogg v. 
 Church Charity Foundation, 203 N. Y. 191, 
 96 N. E. 406, 38 L. R. A. (N. S.) 481, Ann. 
 Cas. 1913A, 883; Mulchey v. Religious So- 
 ciety, 125 Mass. 487; Hewett v. Hospital 
 Aid Ass'n, 73 N. H. 556, 64 Atl. 190, 7 L. R. 
 A. (N. S.) 496; Bruce v.' Central Methodist 
 Episcopal Church, 147 Mich. 230, 110 N. W. 
 951, 10 L. R. A. (N. S.) 74, 11 Ann. Cas. 150 ; 
 Powers v. Hospital, 109 Fed. 294, 47 C. C. 
 A. 122, 65 L. R. A. 372; but such corpora- 
 tion is not liable for the negligent injury to 
 a beneficiary by one of its servants; Gable 
 v. Sisters of St. Frances, 227 Pa. 254, 75 Atl. 
 10S7, 136 Am. St. Rep. 879 ; Parks v. North- 
 western University, 218 111. 381, 75 N. E. 
 991, 2 L. R. A. (N. S.) 556, 4 Ann. Cas. 103 ; 
 McDonald v. Massachusetts General Hos- 
 pital, 120 Mass. 432, 21 Am. Rep. 529; Cun- 
 ningham v. Sheltering Arms, 135 App. Div. 
 178, 119 N. Y. Supp. 1033; Powers v. Hos- 
 pital, 109 Fed. 294, 47 C. C. A. 122, 65 L. R. 
 A. 372; though the beneficiary be a patient 
 in a hospital paying for the treatment re- 
 ceived ; nor will an inmate of a reform 
 school be permitted to recover from the in- 
 stitution ; Corbett v. Industrial School, 177 
 N. Y. 16, 68 N. E. 997 ; nor is such corpora- 
 tion liable where an inmate who partly pays 
 for his care by work is killed in the course 
 of it while directed by a competent serv- 
 ant; Cunningham v. Sheltering Arms, 61 
 Misc. 501, 115 N. Y. Supp. 576. 
 
 See Foreign Charities; Cy Pres ; Per- 
 petuities. 
 
 CHARTA. A charter or deed in writing. 
 Any signal or token by which an estate was 
 held. 
 
 Charta Chyrographata. An indenture. 
 The two parts were written on the same 
 sheet, and the word chyrograph written be- 
 tween them in such a manner as to divide 
 the word in the separation of the two parts 
 of the indenture. 
 
 Charta Communis. An indenture. 
 
 Charta Partita. A charter-party. 
 
 Charta de Una Parte. A deed poll. A 
 deed of one part. 
 
 Formerly this phrase was used to distin-
 
 CHART A 
 
 4G0 
 
 CHARTER 
 
 guish a deed poll — which is an agreement 
 made by one party only; that is, only one 
 of the parties does any act which is binding 
 upon him — from a deed inter partes. Co. 
 Liu. 229. See Deed Poll. 
 
 CHARTA DE FORESTA (written Cvrta 
 de ForeSta). A collection of the laws of the 
 forest, made in the reign of Hen- III. 
 
 The charta de forcsta was called the Great Char- 
 ter of the woodland population, nobles, barons, tree- 
 men, and slaves, loyally granted by Henry III. 
 early In his reign (A. D. 1217). Inderwlck, King's 
 Peace 159; Stubb's Charters 847. There is a dif- 
 ference of opinion as to the original charter of the 
 forest similar to that which exists respecting the 
 true and original Magna Carta (q. v.), and for the 
 same reason, viz., that both required repeated con- 
 firmation by the kings, despite their suppo 
 vlolability. This justifies the remark of recent his- 
 torians as to the great charter that "this theoret- 
 ical sanctity and this practical insecurity are shared 
 with 'the Great Charter of Liberties' by the Char- 
 ter of the Forest which was issued in 1217." 1 Poll. 
 & Maitl. 158. It is asserted with great positive- 
 ness by Inderwick that no forest charter was ever 
 granted by King John, but that Henry III. issued 
 the charter of 1217 (which he puts in the third year 
 of the reign, which, however, only commenced Oct. 
 28, 1-16), in pursuance of the promises of his father; 
 and Lord Coke, referring to it as a charter on which 
 the lives and liberties of the woodland population 
 depended, says that it was confirmed at least thirty 
 times between the death of John and that of Henry 
 V. ; 4 Co. Inst. 303. 
 
 Webster, under the title Magna Charta, says that 
 the name is applied to the charter granted in the 
 9th Hen. III. and confirmed by Edw. I. Prof. Mait- 
 land, in speaking of Magna Carta, refers to "the 
 sister-charter which defined the forest law" as one 
 of the four documents which, at the death of Henry 
 III., comprised the written law of England. 1 Soc. 
 England 410. Edward I. in 1297 confirmed "the 
 charter made by the common consent of all the 
 realm in the time of Henry III. to be kept in every 
 point without breach." Inderwick, King's Peace 
 160; Stubb's Charters 486. The Century Dictionary 
 refers to this latter charter of Edw. I. as the 
 Charter of the Forest; but it was, as already shown, 
 only a confirmation of it, and a comparison of the 
 authorities leaves little if any doubt that the date 
 was as above stated and the history as here given. 
 Its provisions may be found in Stubb's Charters 
 and they are summarized by Inderwick, In his re- 
 cent work above cited. See Forest Laws. 
 
 CHARTEL. A challenge to single combat. 
 Used at the period when trial by single com- 
 bat existed. Cowell. 
 
 CHARTER. A grant made by the sover- 
 eign either to the whole people or to a por- 
 tion of them, securing to them the enjoyment 
 of certain rights. 1 Story, Const. § 161 ; 1 
 
 T.la. Com. 108. 
 
 A charter differs from a constitution In this, that 
 the former is granted by the sovereign, while the 
 latter is established by the people themselves: both 
 are the fundamental law of the land. 
 
 A deed. The written evidence of things 
 done between man and man. Cowell. Any 
 conveyance of lands. Any sealed instru- 
 ment. Spelman. See Co. Litt. 6 ; 1 Co. 1 ; 
 F. Moore GS7. 
 
 An act of a legislature creating a corpora- 
 tion. 
 
 The charter of a corporation consists of 
 its articles of incorporation taken in con- 
 
 nection with the law under which it was or- 
 ganized; Chicago Open Board of Trade v. 
 Bldg. Co., 136 111. App. I 
 
 The name Is ordinarily applied to government 
 grants of powers or privileges of a permanent or 
 continuous nature, such as Incorporation, terri- 
 torial dominion or Jurisdiction. ; rivate 
 persons it is also loosely applied to deeds and In- 
 struments under seal for the conveyance of lands. 
 Cent. Diet. 
 
 It is to be strictly construed; Rockland 
 Water Co. v. Water Co., 80* Me. 544, 15 Ail. 
 785, 1 L. R. A. 388; Oregon, !R. & Nav. Co. 
 v. K.v. Co., 130 U. S. 1, 9 Sup. Ct. 409, 32 I. 
 Ed. 837; Bast Line & R. R. Ry. Co. v. B 
 ing, 09 Tex. 300, 6 S. W. 834. The reserva- 
 tion by the legislature of power to repeal a 
 charter cannot give authority to take away 
 or destroy property lawfully acquired or 
 created under the charter; People v. O'Rrien, 
 111 N. Y. 1, 18 X. B. 692, 2 L. R. A. 255, 7 
 Am. St. Rep. 084. A charter may be taken 
 under the power of eminent domain ; Ap- 
 peal of Philadelphia & Cray's Ferry Pass. R. 
 Co., 102 Pa. 123. See Forfeiture. 
 
 As to the power of the state to alter, 
 amend or repeal a charter, see Impairing 
 Obligations of a Contract. 
 
 The early history of the genesis of the 
 corporation, particularly of municipal cor- 
 porations, is elaborated in a paper by a. M. 
 Eaton in Am. Bar. Ass'n Rep. (19021 292, 
 322, in which it is said: "The facts of his- 
 tory now known, and many of which were 
 unknown to Coke, show that charters were 
 granted by lords of manors, lay and spirit- 
 ual, as well as by kings holding manors as 
 of their own demesne and not acting in the 
 exercise of any royal prerogative, to towns 
 and boroughs confirming the continued en- 
 joyment of 'liberties' in the future as they 
 had already been long enjoyed in the past. 
 Sometimes additional new liberties 1 wen- 
 added, and afterwards similar brand-new 
 charters were granted, relating only to fu- 
 ture enjoyment of such 'liberties' similar to 
 those already long enjoyed by the old towns 
 and boroughs. In return for these grants 
 the townspeople agreed at first, each one 
 severally, to render his feudal dues (or rent 
 in place thereof) ; then a group of the prin- 
 cipal townsmen or burghers became responsi- 
 ble for the whole sum, and finally the town 
 Itself became thus liable for the fee-term 
 rent. There was no intention on either part 
 to form a corporation, indeed neither knew 
 what a corporation was; for the name did 
 not exist, but the thing itself was being 
 gradually evolved." 
 
 Blank Charter. A document given to 
 the agents of the crown in the reign of Rich- 
 ard II., with power to fill up as they pleased. 
 Charter or PABDON. In English Law. An 
 instrument under the great seal by which a 
 pardon is granted to a man for a felony or 
 other offence. Black, L. Diet, 
 See Franchise.
 
 CHARTER-LAND 
 
 470 
 
 CHARTER-PARTY 
 
 CHARTER-LAND. In English Law. 
 
 Land formerly held by deed under certain 
 rents and free services. It differed in noth- 
 ing from free socage land ; and it was also 
 called bookland. 2 Bla. Com. 90. 
 
 CHARTER-PARTY. A contract of af- 
 freightment, by which the owner of a ship or 
 other vessel lets the whole or a part of her 
 to a merchant or other person for the con- 
 veyance of goods, on a particular voyage, in 
 consideration of the payment of freight 
 
 The term is derived from the fact that the con- 
 tract which bears this name was formerly written 
 on a card (charta-partita), and afterwards the 
 card was cut into two parts from top to bottom and 
 one part was delivered to each of the parties, which 
 was produced when required, and by this means 
 counterfeits were prevented. Abb. Ship. 175; Po- 
 thier,- Traite de Charte-partie, gives this explana- 
 tion taken from Boerius: "It was formerly usual in 
 England and Aquitaine to reduce contracts into 
 writing on a chart, divided afterwards into two 
 parts from top to bottom, of which each of the con- 
 tracting parties took one, which they placed together 
 and compared when they had occasion to know the 
 terms of their contract." 
 
 It is in writing not generally under seal, 
 in modern usage ; 1 Pars. Adm. & Sh. 270 ; 
 In re Cloherty, 2 Wash. 145, 27 Pac. 1064; 
 Brown v. Ralston, 4 Rand. (Va.) 504 ; but 
 may be by parol ; Ben. Adm. 287 ; Taggard 
 v. Loring, 16 Mass. 336, 8 Am. Dec. 140; 
 Muggridge v. Eveleth, 9 Mete. (Mass.) 233; 
 The Phebe, Ware 263, Fed. Cas. No. 11,064 ; 
 The Tribune, 3 Sumn. 144, Fed. Cas. No. 14,- 
 171. It should contain, first, the name and 
 tonnage of the vessel ; see Johnson v. Miln, 
 14 Wend. (N. Y.) 195 ; Ashburner v. Balchen, 
 7 NY. 262 ; second, the name of the cap- 
 tain ; 2 B. & Aid. 421 ; third, the names of 
 the vessel-owner and the freighter ; fourth, 
 the place and time agreed upon for the load- 
 ing and discharge ; fifth, the price of the 
 freight; Kleine v. Catara, 2 Gall. 61, Fed. 
 Cas. No. 7,869 ; sixth, the demurrage or in- 
 demnity in case of delay ; 9 C. & P. 709 ; 
 Clendaniel v. Tuckerman, 17 Barb. (N. Y.) 
 1S4; Lacombe v. Wain, 4 Binn. (Pa.) 299; 
 Brown v. Ralston, 9 Leigh (Va.) 532; Towle 
 v. Kettell, 5 Cush. (Mass.) 18 ; seventh, such 
 other conditions as the parties may agree 
 upon; 13 East 343; Bee 124. The owner 
 who signs a charter-party impliedly warrants 
 that the vessel is commanded by competent 
 officers; Tebo v; Jordan, 67 Huh 392, 22 N. 
 Y. Supp. 156. One of the conditions implied 
 in a charter-party is that the vessel will 
 commence the voyage with reasonable dili- 
 gence ; waiting four months violates the con- 
 tract; Olsen v. Hunter-Benn & Co., 54 Fed. 
 530. 
 
 It may either provide that the charterer 
 hires the whole capacity and burden of the 
 vessel, — in which case it is in its nature a 
 contract whereby the owner agrees to carry 
 a cargo which the charterer agrees to pro- 
 vide, — or it may provide for an entire sur- 
 render of the vessel to the charterer, who 
 then hires her as one hires a house, and 
 
 takes possession in such a manner as to have 
 the rights and incur the liabilities which 
 grow out of possession. See 8 Ad. & E. 835 ; 
 Palmer v. Gracie, 4 Wash. C. C. 110, Fed. 
 Cas. No. 10,692; Hooe v. Groverman, 1 Cra. 
 (U. SJ 214, 2 L. Ed. S6 ; Lyman v. Redman, 
 23 Me. 289; Clarkson v. Edes, 4 Cow. (N. Y.) 
 470; The Volunteer, 1 Sumn. 551, Fed. Cas. 
 No. 16,991 ; Ruggles v. Bucknor, 1 Paine 358, 
 Fed. Cas. No. 12,115. If the object sought 
 can be conveniently accomplished without a 
 transfer of the vessel, the courts will not be 
 inclined to consider the contract as a demise 
 of the vessel ; U. S. v. Cassedy, 2 Sumn. 
 583, Fed. Cas. No. 14,745 ; Sweatt v. It. Co., 
 
 3 Cliff. 339, Fed. Cas. No. 13,684; Hooe v. 
 Groverman, 1 Cra. (U. Si) 214, 2 L. Ed. 86; 
 Reed v. U. S., 11 Wall. (U. S.) 591, 20 L. Ed. 
 220; Work v. Leathers, 97 U. S. 379, 24 L. 
 Ed. 1012. 
 
 When a ship is chartered, this instrument 
 serves to authenticate many of the facts on 
 which the proof of her neutrality must rest, 
 and should therefore be always found on 
 board chartered ships ; 1 Marsh. Ins. 407. 
 
 Unqualified charter-parties are to be con- 
 strued liberally as mercantile contracts, and 
 one who has thereby charged himself with 
 an obligation must make it good unless pre- 
 vented by the act of God, the law, or the 
 other party; The B. F. Bruce, 50 Fed. 118. 
 A charter-party controls a bill of lading in 
 case of conflict between them ; Ardan S. S. 
 Co. v. Theband, 35 Fed. 620. In construing 
 a charter-party, matter expunged from a 
 printed form may be considered in determin- 
 ing the intention of the parties ; One Thou- 
 sand Bags of Sugar v. Harrison, 53 Fed. 828, 
 
 4 C. C. A. 34. See Interpretation. Quar- 
 antine regulations which interfere with the 
 charter engagements of a vessel are fairly 
 within the clause excepting liability for re- 
 sults caused by restraints of successor ; The 
 Progreso, 50 Fed. 835, 2 C. C. A. 45. 
 
 CHARTERED ACCOUNTANT. See Audi- 
 tor. 
 
 CHART IS REDDENDIS (Lat. for return- 
 ing charters). A writ which lay against one 
 who had charters of feoffment intrusted to 
 his keeping, which he refused to deliver. 
 Reg. Orig. 159. It is now obsolete. 
 
 C H ASE. The liberty or franchise of hunt- 
 ing, oneself, and keeping protected against 
 all other persons, beasts of the chase within 
 a specified district, without regard to the 
 ownership of the land. 2 Bla. Com. 414. 
 
 The district within which such privilege is 
 to be exercised. 
 
 A chase is a franchise granted to a subject, and 
 hence is not subject to the forest laws ; 2 Bla. Com. 
 38. It differs from a park, because it may be an- 
 other's ground, and is not enclosed. It is said by 
 some to be smaller than a forest and larger than a 
 park. Termes de la Ley. But this seems to be a 
 customary incident, and not an essential quality. 
 
 The act of acquiring possession of animals 
 ferce natures by force, cunning, or address.
 
 CHASE 
 
 471 
 
 CHATTEL 
 
 The hunter acquires a right to such ani- 
 mals by occupancy, and they become his 
 property; 4 Toullier, n. 7. No man has a 
 right to enter on the lands of another for 
 the purpose of hunting, without His consent; 
 11 Bast 249; Pothler, ProprWW/pt 1, c. 2, 
 a. 2. 
 
 CHASTE. In the seduction statutes It 
 
 means actual virtue in conduct and principle. 
 One who falls from virtue and afterwards 
 reforms is chaste within the meaning of the 
 statutes; Wood v. State, 18 Ga. 288, 15 Am. 
 Rep. Get; Andre v. State, 5 la. 389, <;s Am. 
 Dec. 708; Carpenter v. People, 8 Barb. (N. 
 Y.) 603; Boyce v. People, 55 N. Y. 644; Wil- 
 son v. State, 73 Ala. 527. 
 
 CHASTITY. That virtue which prevents 
 the unlawful commerce of the sexes. 
 
 A woman may defend her chastity by kill- 
 ing her assailant. See Self-Defence, 
 
 Sending a letter to a married woman so- 
 liciting her to commit adultery is an indict- 
 able offence; State v. Avery, 7 Conn. 266, 18 
 Am. Dec. 105. See Shannon v. Com., 14 Pa. 
 226. In England, and perhaps elsewhere, the 
 mere solicitation of chastity Is not indicta- 
 ble; 2 Chit. 1'r. 478. Words charging a wo- 
 man with a violation of chastity are action- 
 able in themselves, because they charge her 
 with a crime punishable by law, and of a 
 character to degrade and disgrace her, and 
 exclude her from society ; Frisbie v. Fowler, 
 2 Conn. 707 ; Brown v. Nickerson, 5 Gray 
 (Mass.) 2; Heard, Lib. & SI. § 36; Brooker 
 v. Coffin, 5 Johns. (N. Y.) 190, 4 Am. Dec. 
 337 ; Gosling v. Morgan, 32 Pa. 275 ; but not 
 so in the District of Columbia ; Pollard v. 
 Lyon, 91 U. S. 225, 23 L. Ed. 30S. See Li- 
 rel; Promise of Marriage. 
 
 CHATTEL (Norm. Fr. goods, of any kind). 
 Every species of property, movable or im- 
 movable, which is less than a freehold. 
 
 In the Grand Coutumier of Normandy it Is de- 
 scribed as a mere movable, but is set in opposition 
 to a fief or feud; so that not only goods, but what- 
 ever was not a feud or fee, were accounted chattels ; 
 and it is in this latter sense that our law adopts it. 
 •1 Bla. Com. 2S5. 
 
 Real chattels are interests which are an- 
 nexed to or concern real estate: as. a lease 
 for years of land. And the duration of the 
 lease is immaterial, whether it be for one or 
 a thousand years, provided there be a cer- 
 tainty about it and a reversion or remainder 
 in some other person. A lease to continue 
 until a certain sum of money can be raised 
 out of the rents is of the same description; 
 and so in fact will be found to be any other 
 Interesl In real estate whose duration is lim- 
 ited to a time certain beyond which it can- 
 not subsist, and which is. therefore, some- 
 thing less than a freehold. A lease giving 
 the exclusive privilege for a term of years 
 of boring and digging for oil and other min- 
 erals is also a chattel; Brown v. Beecher, 
 120 Pa. 5P0, 15 All. COS. 
 
 Personal chattels are properly thh gs 
 able, which maj it by the 
 
 owner; such as animal :"ld stuff, 
 
 money, jewels, corn, garments, and every- 
 thing else that can be put in motion and 
 transferred from one place I 
 Kent 340; Co. Litt 48 a; -i In re 
 
 cay, 5 Mass. 419; Brewster v. Hill, 1 N. II. 
 350. 
 
 chattels, whether real or '. are 
 
 treated as personal property in 
 apect, and, In ease of the death of the owner, 
 usually belong to the executor or adminis- 
 trator, and not to the heir at law. i 
 some chattels, however, which, as Chancellor 
 Kent observes, though they be movable, yet 
 are necessarily attached to the freehold: con- 
 tributing to its value and enjoyment, they go 
 along with it in the same path of descent or 
 alienation. This is the case with deeds, and 
 other papers which constitute the muni 
 of title to the inheritance; the shelves and 
 family pictures in a house; and the posts 
 and rails of an enclosure. It is also under- 
 stood that pigeons in a pigeon-house, di 
 a park, and fish in an artificial pond go with 
 the inheritance, as heirlooms to the heir at 
 law. I'.ut fixtures, or such things of a per- 
 sonal nature as are attached to the realty, 
 whether for a temporary purpose or other- 
 wise, become chattels, or not, according to 
 circumstances; Mitch. R. P. 21. See Fix- 
 tubes; 2 Kent 342; Co. Litt 20 a, 118; 12 
 Price 163; 11 Co. 50 b ; Bacon, Ahr. Baron, 
 etc. C, 2; Dane, Abr. Index; Com. Dig. 
 Biens, A. 
 
 CHATTEL INTEREST. An interest in 
 
 corporeal hereditaments less than a fre< 
 2 Kent 342. 
 
 There may be a chattel interest in real 
 property, as in case of a lease; Stearns. Real 
 Act. 115. A term for years, no matter of 
 how long duration, is but a chattel interest, 
 unless declared otherwise by statute. The 
 subject is treated in 1 Washburn. R. P. 310. 
 
 CHATTEL MORTGAGE. A transfer of" 
 personal property ;is security for a debt or 
 obligation in such form that upon failure of 
 the mortgagor to comply with the terms of 
 the contract, the title to the property will he 
 in the mortgagee. Thomas, Mort. 427. 
 
 An absolute pledge, to become an absolute 
 Interesl If nol redeemed at a fixed time. 
 [you v. Lansing, 2 Cain x. Y.) 
 
 200, per Kent. Ch. 
 
 Strictly speaking, a conditional sale of a 
 chattel as security for the payment of a debt 
 or the performance of some other obligation. 
 Jones. Chat. Mort. § 1. The condition is that 
 the sale shall be void upon the performance 
 of the condition named. If the condition be 
 not performed, the chattel is irredeemable at 
 law: but it may be otherwise in equity or 
 by Statute; id. The title is fully vested in 
 the mortgagee and can be defeated only by
 
 CHATTEL MORTGAGE 
 
 472 
 
 CHATTEL MORTGAGE 
 
 the due performance of the condition ; upon 
 a breach, the mortgagee may take possession 
 and treat the chattel as his own; id.; Por- 
 ter v. Parmly, 34 N. Y. Sup. Ct. 398. See 
 Flanders v. Thomas, 12 Wis. 413. 
 
 At common law a chattel mortgage may be 
 made without writing ; it is valid as between 
 the parties; Bank of Rochester v. Jones, 4 
 N. T. 497, 55 Am. Dec. 290. A verbal chat- 
 tel mortgage is valid between the parties; 
 Gilbert v. Vail, 60 Yt. 261, 14 Atl. 542; 
 Stearns v. Gafford, 56 Ala. 544 ; Bardwell v. 
 Roberts. 66 Barb. (N. Y.) 433 ; Bates v. Wig- 
 gin, 37 Kan. 44, 14 Pac. 442, 1 Am. St. Rep. 
 234; Carroll Exch. Bank v. Bank, 50 Mo. 
 App. 92 ; and as to third parties with notice ; 
 Sparks v. Wilson, 22 Neb. 112, 34 N. W. Ill ; 
 contra, Lazarus v. Bank, 72 Tex. 359, 10 S. 
 W. 252; Knox v. Wilson, 77 Ala. 309; and 
 even as against third parties if accompanied 
 by possession in the mortgagee ; Bardwell v. 
 Roberts, 66 Barb. (N. Y.) 433; but delivery 
 is not essential in all cases to the validity 
 of a chattel mortgage; Morrow v. Turney's 
 Adm'r, 35 Ala. 131 ; but see Bardwell v. Rob- 
 erts, 66 Barb. (N. Y.) 433. It differs from a 
 pledge in that in case of a mortgage the title 
 is vested in the mortgagee, subject to de- 
 feasance upon the performance of the condi- 
 tion ; while in the case of a pledge, the title 
 remains in the pledgor, and the pledgee holds 
 the possession for the purposes of the bail- 
 ment; White v. Cole, 24 Wend. (N. Y.) 116; 
 Conner v. Carpenter, 28 Vt. 237; Day v. 
 Swift, 48 Me. 36S; Heyland v. Badger, 35 
 Cal. 404 ; Badlam v. Tucker, 1 Pick. (Mass.) 
 389, 11 Am. Dec. 202; Sims v. Canfield, 2 
 Ala. 555. By a mortgage the title is trans- 
 ferred; by a pledge, the possession; Jones, 
 Mort. § 4. 
 
 Upon default, in cases of pledge, the pledg- 
 or may recover the chattel upon tendering 
 the amount of the debt secured ; but in case 
 of a mortgage, upon default the chattel, at 
 law, belongs to the mortgagee; Porter v. 
 Parmly, 43 How. Pr. (N. Y.) 445. In equity 
 *e may be held liable to an account; Stod- 
 dard v. Denison, 38 id. 296. Apart from 
 statutes, no special form is required for the 
 creation of a chattel mortgage. A bill of sale 
 absolute in form, with a separate agreement 
 of defeasance, constitute together a mort- 
 gage, as between the parties; Carpenter v. 
 Snelling, 97 Mass. 452 ; Taber v. Hamlin, 97 
 Mass. 489, 93 Am. Dec. 113 ; Davis v. Hub- 
 bard, 38 Ala. 185; Polhemus v. Trainer, 30 
 Cal. 6S5 ; Soell v. Hadden, 85 Tex. 1S2, 19 
 S. W. 10S7 ; State v. Bell, 2 Mo. App. 102 ; 
 or a note with an endorsement on the back 
 that at any time the maker agreed to make 
 a chattel mortgage ; Riddle v. Norris, 46 Mo. 
 App. 512. And in equity, the defeasance may 
 be subsequently executed; Locke's Ex'r v. 
 Palmer, 26 Ala. 312. A parol defeasance is 
 not good in law; Harper v. Ross, 10 Allen 
 (Mass.) 332; Bryant v. Crosby, 36 Me. 562, 
 
 58 Am. Dec. 767; Montany v. Rock, 10 Mo. 
 506; contra, Fuller v. Parrish, 3 Mich. 211; 
 but it is in equity ; Coe v. Cassidy. 72 N. Y. 
 133 ; Laeber v. Langhor, 45 Md. 477 ; Stokes 
 v. Hollis, 43 Ga. 262; National Ins. Co. v. 
 Webster, 83 111. 470; Bartel v. Lope, 6 Or. 
 321 ; Hurford v. Harned, 6 Or. 363 ; even as 
 to third parties with notice; Omaha Book 
 Co. v. Sutherland, 10 Neb. 334, 6 N. W. 367. 
 See Conway v. Iron Co., 33 Neb. 454, 50 N. 
 W. 326. The question whether a bill of sale 
 was intended as a chattel mortgage is for 
 the jury ; King v. Greaves, 51 Mo. App. 534. 
 In a conditional sale, the purchaser has 
 merely a right to purchase, and no debt or 
 obligation exists on the part of the vendor ; 
 this distinguishes such a sale from a mort- 
 gage ; Weathersly v. Weathersly, 40 Miss. 
 462, 90 Am. Dec. 344 ; Gomez v. Kamping, 4 
 Daly (N. Y.) 77. 
 
 Where there is an absolute sale and a si- 
 multaneous agreement of resale, the tenden- 
 cy is to consider the transaction a mortgage ; 
 Barnes v. Holcomb, 12 Sm. & M. (Miss.) 306 ; 
 Fowler v. Stoneum, 11 Tex. 478, 62 Am. Dec. 
 490 ; Folsom v. Fowler, 15 Ark. 280 ; but not 
 when the intention of the parties is clearly 
 otherwise; Forkner v. Stuart, 6 Gratt. (Va.) 
 197; Bracken v. Chaffin, 5 Humph. (Tenn.) 
 575. 
 
 It is not necessary that a written chattel 
 mortgage should be under seal; Gerrey v. 
 White, 47 Me. 504; Sherman v. Fitch, 98 
 Mass. 59; Ping. Chat. Mort. 45; Gibson v. 
 Warden, 14 Wall. (U. S.) 244, 20 L. Ed. 797 ; 
 Sweetzer v. Mead, 5 Mich. 107. 
 
 A chattel mortgage of a crop must desig- 
 nate the land ; W. L. Hurley & Sons v. Ray, 
 160 N. C. 376, 76 S. E. 234. 
 
 At common law a mortgage can be given 
 only of chattels actually in existence, and 
 belonging to the mortgagor actually or po- 
 tentially; Pierce v. Emery, 32 N. H. 484; 
 Roy v. Goings, 6 111. App. 162; Looker v. 
 Peckwell, 38 N. J. L. 253; Williams v. 
 Briggs, 11 R. I. 476, 23 Am. Rep. 518 ; Cook 
 v. Corthell, 11 R. I. 482, 23 Am. Rep. 518; 
 Bouton v. Haggart, 6 Dak. 32, 50 N. W. 197 ; 
 and even though the mortgagor may after- 
 wards acquire title, the mortgage is bad 
 against subsequent purchasers and creditors; 
 but it is otherwise between the parties ; Lud- 
 wig v. Kipp, 20 Hun (N. Y.) 265 ; claims for 
 money not yet earned may be the subject of 
 a chattel mortgage; Sandwich Mfg. Co. v. 
 Robinson, 83 la. 567, 49 N. W. 1031, 14 L. R. 
 A. 126, and an elaborate note thereto. 
 
 In equity the rule is different; the mort- 
 gage, though not good as a conveyance, is 
 valid as an executory agreement; the mort- 
 gagor is considered as a trustee for the 
 mortgagee ; Williams v. Briggs, 11 R. I. 476, 
 23 Am. Rep. 518 ; 10 H. L. Cas. 191 ; Mitch- 
 ell v. Winslow, 2 Sto. 630, Fed. Cas. No. 
 9,673 ; Beall v. White, 94 U. S. 382, 24 L. Ed. 
 173; Schuelenburg & Boeckler v. Martin, 2
 
 CHATTEL MORTGAGE 
 
 473 
 
 CHATTEL MORTGAGE 
 
 Fed. 747; Ellett v. Butt, 1 Woods, 214, Fed. 
 Cas. No. 4.884; Perry v. White, 111 N. C. 
 107, 1G S. E. 172. But see Moody v. Wright, 
 13 MetC. (Mass.) 17, 46 Am. Dec. 706; Hun- 
 ter v. Bosworth, 43 Wis. 5S3. I'nder this 
 principle all sorts of future interests in chat- 
 tels may be mortgaged; Jones, Chat Mort 
 S 174. 
 
 The crops of specified land or the future 
 young of animals could at one time be sold 
 or mortgaged on the ground that seller had 
 potential possession and passed legal title; 
 Hob. 132, but the English Sale of Goods 
 Act, § 5, provides that where by a contract 
 of sale the seller purports to effect a present 
 sale of future goods, the contract operates 
 as an agreement to sell goods. No excep- 
 tion is made in favor of property which at 
 common law was the subject of potential 
 possession. This seems to change the rule 
 in England. The mere agreement to mort- 
 gage personalty subsequently to be acquired 
 gave the mortgagee a lien upon the proper- 
 ty; 10 H. L. Cas. 191; 119031 2 K. B. 367. It 
 is essential that the mortgagee shall have 
 actually advanced his money ; 13 App. Cas. 
 523. 
 
 Mortgages of future acquired chattels 
 where the mortgagor is in possession are 
 held invalid against an attachment or levy 
 by creditors; American Surety Co. v. Mfg. 
 Co., 100 Fed. 40; Tatman v. Humphrey, 184 
 Mass. 361, 68 N. E. 844, 63 L. R. A. 73S, 
 100 Am. St. Rep. 562; Francisco v. Ryan, 
 54 Ohio St. 307, 43 N. E. 1045, 56 Am. St 
 Rep. 711; Girard Trust Co. v. Mellor, 156 
 Pa. 579, 27 Atl. 662; contra, Riddle v. Dow, 
 98 la. 7, 66 N. W. 1066, 32 L. R. A. 811; 
 Cunningham v. Woolen Mills, 69 N. J. Eq. 
 710, 61 Atl. 372. The general rule is that 
 a chattel mortgagee has title, and so a mort- 
 gage on animals covers the increase, though 
 not mentioned in the mortgage on the prop- 
 erty, partus sequitur ventrcm; Northwestern 
 Nat. Bank v. Freeman, 171 U. S. 620, 19 
 Sup. Ct 36, 43 L. Ed. 307; but in those 
 states where such a mortgage gives only a 
 lien, then it is limited to the property actu- 
 ally described; Demers v. Graham, 36 Mont 
 402, 93 Pac. 268, 14 L. R. A. (N. S.) 431, 122 
 Am. St Rep. 3S4, 13 Ann. Cas. 97; contra, 
 First Nat. Bank v. Investment Co., S6 Tex. 
 636, 26 S. W. 4SS. See 19 Harv. L. Rev. 
 557, by Samuel Williston. 
 
 A chattel mortgage on growing crops, giv- 
 en as security for a note and for future 
 advances and merchandise sold, is valid ; 
 Souza v. Lucas (Cal.) 100 Pac. 115. 
 
 The registration statutes simply provide 
 a substitute for change of possession. Be- 
 tween the parties, a change of possession is 
 unnecessary; if there is a change of pos- 
 session, registration is not required; Mor- 
 row v. Reed, 30 Wis. 81; Janvrin v. Fogg, 
 49 N. H. 340; For dice v. Gibson, 129 Ind. 
 7, 28 N. E. 303. At common law an unre- 
 corded chattel mortgage is prima facie 
 
 fraudulent and void as to creditors, where 
 there is no change of possession, but such 
 presumption may be rebutted ; Pyeatt v. 
 Powell, 51 Fed. 551, 2 C. C. A. 367; Krank- 
 houser v. Worrall, 51 Kan. Kit. 32 Pac 
 See Frost v. Mott, 34 X. Y. 253; Kleine v. 
 K.itzonberger, 20 Ohio St 110, 5 Am. 
 630. 
 
 Possession by the mortgagee cures defects 
 in the form of the mortgage, or its < 
 tion; Springer v. Lipsis, 209 111. 21 
 E. 641; Farmers' & Merchants' Bank v. 
 Orme, 5 Ariz. 304, 52 Pac. 473; so of d 
 in acknowledgment when possession is I 
 before a third party's lien attaches; Garner 
 v. Wright. 52 Ark. 3S5, 12 S. W. 785, 6 I.. 
 R. A. 715; and so as to tbe affidavit ac- 
 companying the mortgage; Chicago Title & 
 Trust Co. v. O'Marr, 18 Mont. 568, 46 Pac. 
 809, ;7 Pac. 4; and as to any insufficiency 
 in the description of the chattels; Frost v. 
 Bank, 68 Wis. 234, 32 X. W. 110; Kelley v. 
 Andrews, 102 la. 119, 71 N. W. 251. But 
 if the mortgage is not recorded and is there- 
 by invalid, it is not validated by the mort- 
 gagee's possession as to the mortgagor's 
 creditors whose debts were created or whose 
 rights attached after execution and before 
 possession taken; In re Bothe, 173 Fed. 597, 
 97 C. C. A. 547; Stephens v. Perriue, 113 N. 
 Y. 476, 39 N. E. ll. Where the morl 
 takes contemporaneous possession and re- 
 tains it recording is not essential ; Fordice 
 v. Gibson, 129 Ind. 7, 28 X. E. 303; B 
 way v. Abbott 37 Wash. 263, 79 Pac. 924 ; 
 and, though not recorded, a chattel mortgage 
 is good against all the world if, after condi- 
 tion broken, the mortgagee takes possession; 
 Garrison v. Carpet Co., 21 Okl. 643, 97 Pac. 
 97S, 129 Am. St. Rep. 799. 
 
 A mortgage not filed under the statute is 
 good against a subsequent bill of sale made 
 by the mortgagor after the mortgagee was 
 in possession ; Smith v. Conuor (Tex.) 46 
 S. W. 267. So of a subsequent chattel mort- 
 gage made by the mortgagor ; National Bank 
 of Metropolis v. Sprague, 21 X. J. Eq. 530; 
 and an attachment subsequently levied 
 against the mortgagor; Baldwin v. Flash, 
 59 Miss. 61 ; Isenberg v. Fansler, 36 Kan. 
 402, 13 Tac. 573. 
 
 The English Bill of Sales Acts only re- 
 quired written chattel mortgages to be re- 
 corded, but they need not be written. The 
 mortgage statutes on recording are collect- 
 ed in Jones, Chattel Mortgages. § 190 et seq. 
 Some make the mortgagor's place of resi- 
 dence the place of record; others the place 
 where the property is situated at the time; 
 others require them to be renled every year, 
 and so on. In general, innocent third par- 
 ties will prevail over the holder of a chattel 
 mortgage or conditional bill of sale, unless 
 the instrument has been recorded or the 
 goods have been delivered ; Funk v. Paul, 
 64 Wis. 35, 24 X. W. 419, 54 Am. Rep. 576. 
 As a general rule, where a judgment is not
 
 CHATTEL MORTGAGE 
 
 474 
 
 CHATTEL MORTGAGE 
 
 a lien upon personal property, a mortgage 
 recorded after judgment, but before execu- 
 tion, has priority ; Jones, Cbatt. Mortg. § 
 245d. It is beld that where a mortgage is 
 not recorded nor possession taken by the 
 mortgagee, it is good as against general, 
 but not judgment, creditors; Stephens v. 
 Meriden Britannia Co., 160 N. Y. 180, 54 
 N. E. 781, 73 Am. St. Rep. 678. A mortgagee 
 who has not taken possession or recorded 
 his mortgage immediately cannot protect 
 himself against the mortgagor's creditors ; 
 Roe v. Meding, 53 N. J. Eq. 350, 30 Atl. 587, 
 33 Atl. 394. 
 
 - An unrecorded chattel mortgage is valid 
 against a general assignment by the mort- 
 gagor for his creditors; Jones, Chatt. Mortg. 
 § 244; but is invalid as to a receiver of the 
 mortgagor because he represents creditors ; 
 In re Wilcox & Howe Co., 70 Conn. 220, 39 
 Atl. 163; Fidelity Trust Co. v. Clay Co., 70 
 N. J. Eq. 550, 67 Atl. 1078 (there being cred- 
 itors whose debts are a lien upon the chat- 
 tels) ; contra; Berline Machine Works v. 
 Trust Co., 60 Minn. 161, 61 N. W. 1131; 
 Ryder v. Ryder, 19 R. I. 1S8, 32 Atl. 919. 
 
 Where statutes provide that a mortgage 
 of chattels shall be void unless the mort- 
 gage is filed or there shall be an actual and 
 continued change of possession, it is essen- 
 tial that such provisions be strictly complied 
 with; Buckstaff Bros. Mfg. Co. v. Snyder, 
 54 Neb. 53S, 74 N. W. S63; McTaggart v. 
 Rose, 14 Ind. 230. See Mower v. McCarthy, 
 79 Vt. 142, 64 Atl. 578, 7 L. R. A. (N. S.) 
 418, 118 Am. St. Rep. 942. 
 
 The removal of the mortgaged chattels 
 from the county where the mortgage on 
 them was recorded does not require it to 
 be recorded in the new place ; Jones, Chatt. 
 Mortg. § 260; National Bank of Commerce 
 v. Jones, 18 Okl. 555, 91 Pac. 191, 12 L. R. 
 A. (N. S.) 311, 11 Ann. Cas. 1041. 
 
 Statutes regulating chattel mortgages ex- 
 ist in all of the states except Louisiana. 
 
 Under the old Bankrupt Act it was held 
 that a bankrupt assignee took only the 
 debtor's title to goods in the case of an 
 unrecorded mortgage ; Stewart v. Piatt, 101 
 U. S. 731, 25 L. Ed. 816; and so in England; 
 12 M. & W. 855. The rule was generally 
 otherwise in insolvency ; Jones, Chatt. Mortg. 
 § 242. The present Bankrupt Act (§ 67 a) 
 provides that liens which are invalid against 
 creditors shall be invalid against the trustee. 
 See Knapp v. Trust Co., 216 TJ. S. 545, 30 
 Sup. Ct. 412, 54 L, Ed. 610. It leaves open to 
 the individual states to allow the acquisition 
 of a lien by the mortgagee by taking posses- 
 sion at any time before actual bankruptcy, 
 and it is immaterial that possession is taken 
 with the mortgagor's consent ; Humphrey v. 
 Tatman, 198 U. S. 91, 25 Sup. Ct. 507, 49 L. 
 Ed. 956; Thompson v. Fairbanks, 196 U. S. 
 516, 25 Sup. Ct. 306, 49 L. Ed. 577. 
 
 A chattel mortgage void by a state stat- 
 ute as to creditors of the mortgagor, for 
 
 want of change of possession, is invalid as 
 to his trustees in bankruptcy. 
 
 A chattel mortgage with power of sale 
 and a deed of trust are practically one and 
 the same instrument, as understood in the 
 District of Columbia ; Hunt v. Ins. Co., 196 
 U. S. 47, 25 Sup. Ct. 179, 49 L. Ed. 3S1. 
 
 No mortgage of a vessel is valid against 
 third parties without notice, unless recorded 
 in the office of the collector of customs of 
 the port where the vessel is enrolled ; Rev. 
 Stat. § 4192, etc. As between parties and 
 those who have notice, registration is not 
 required ; Moore v. Simonds, 100 U. S. 145, 
 25 L. Ed. 590; Best v. Staple, 61 N. Y. 71; 
 The John T. Moore, 3 Wood 61, Fed. Cas. 
 No. 7,430. As to Extraterritoriality of Chat- 
 tel Mortgages, see Conflict of Laws. 
 
 See Mortgage. 
 
 CHAUD-MEDLEY (Fr. chaud, hot). The 
 killing of a person in the heat of an affray. 
 It Is distinguished by Blackstone from chance- 
 medley, an accidental homicide. 4 Bla. Com. 184. 
 The distinction is said to be, however, of no great 
 importance. 1 Russ. Cr. 660. Chance-medley is said 
 to be the killing in self-defence, such as happens on 
 a sudden rencounter, as distinguished from an ac- 
 cidental homicide. Id. 
 
 CHEAT. "Deceitful practices in defraud- 
 ing or endeavoring to defraud another of his 
 known right, by some toilful device, con- 
 trary to the plain rules of common honesty." 
 Hawk. PI. Cr. b. 2, c. 23, § 1. 
 
 The fraudulent obtaining the property of 
 another by any deceitful and illegal prac- 
 tice or token (short of felony) which affects 
 or may affect the public. 
 
 In order to constitute a cheat or indict- 
 able fraud, there must be a prejudice re- 
 ceived ; and such injury must affect the 
 public welfare, or have a tendency so to do ; 
 2 East, PI. Cr. 817; 1 Deacon, Cr. Law 225. 
 
 It seems to be a fair result of the cases, 
 that a cheat, in order to be indictable at 
 common law, must have been public in its 
 nature, by being calculated to defraud num- 
 bers, or to deceive or injure the public 
 in general, or by affecting the public trade 
 or revenue, the public health, or being in 
 fraud of public justice, etc. And the other 
 cases to be found in the books, of cheats ap- 
 parently private which have been yet held 
 to be indictable at common law, will, upon 
 examination, appear to involve considera- 
 tions of a public nature also, or else to be 
 founded in conspiracy or forgery. Thus, it is 
 not indictable for a man to obtain goods by 
 false verbal representations of his credit in 
 society, and of his ability to pay for them ; 
 Com. v. Warren, 6 Mass. 72; or to violate 
 his contract, however fraudulently it be 
 broken; Com. v. Hearsey, 1 Mass. 137; or 
 fraudulently to deliver a less quantity of 
 amber than was contracted for and repre- 
 sented ; 2 Burr. 1125; 1 W. Bla. 273; or to 
 receive good barley to grind, and to return 
 instead a musty mixture of barley and oat-
 
 CHEAT 
 
 475 
 
 CHECK 
 
 meal; 4 Maule & S. 214. See 2 East, PI. Cr. 
 816; People v. Babcock, 7 Johns. (N. Y.) 201, 
 5 Am. Dec. 256; Com. v. Morse, 2 Mass. 138; 
 Cross v. Peters, 1 Greenl. (Me.) 387, 10 Am. 
 Dec. 78; Hill v. State, l JTerg. (Tenn.) 7<;. 
 24 Am. 'Dec. 441; Republica v. Powell, 1 
 Dall. (Pa.) 47, 1 E. Ed. 31; 1 B. '& H. L. 
 Cr. Cas. l. Refusing to return a pron 
 note obtained for the purpose of examina- 
 tion is merely a private fraud; Reople v. 
 Miller, 14 Johns. (N. Y.) ::71. 
 
 To cheat a man of his money or goods; 
 by using false weights or false measures, has 
 been indictable at common law from time im- 
 memorial; :; Greenl. Bv. S v <; ; Com. v. War- 
 ren, 6 Mass. 7i'. See Republica v. Powell, i 
 Dall. (Pa.) 47, 1 L. Ed. 31. In addition to 
 this, the statute 33 lien. VIII. 1, which has 
 been adopted and considered as a part of the 
 common law in some of the United States, 
 and the provisions of which have been either 
 recognized as common law or expressly en- 
 acted in nearly all of them, was directed, as 
 appears from its title and preamble, against 
 such persons as received money or goods by 
 means of counterfeit letters or privy tokens 
 in other men's names: Com. v. Warren, 6 
 Mass. 72; People v. Johnson, 12 Johns. (>.'. 
 Y.) 292; 3 Greenl. Ev. § S6; 2 Bish. Cr. L. 
 11". A "privy token," within the meaning 
 of this statute, was held to denote some 
 real visible mark or thing, as a key, a ring, 
 etc., and not a mere affirmation or promise. 
 And though writings, generally speaking, 
 may be considered as tokens, yet to be with- 
 in this statute they must be such as were 
 made in the names of third persons, whereby 
 some additional credit and confidence might 
 be gained to the party using them; 2 East, 
 PI. Cr. 826, 827. 
 
 The word "cheat" is not actionable, un- 
 less spoken of the plaintiff in relation to his 
 profession or business; Odiorne v. Bacon, 6 
 Cush. (Mass.) 185; 2 Chit. Rep. 657; Rush 
 v. Cavenaugh, 2 Pa. 187; 20 Up. Can. Q. B. 
 382; Ostrom v. Calkins, 5 Wend. (X. Y.) 
 263; Stevenson v. Hayden. 2 Mass. 406; Lucas 
 v. Flinn, 35 la. 9. See Deceit; Fraud; False 
 Pretenses; Token; Illiterate. 
 
 CHECK. A written order or request, ad- 
 dressed to a bank or persons carrying mi the 
 business of banking, by a party having mon- 
 ey in their hands, desiring them to pay, on 
 presentment, to a person therein named or 
 bearer, or to such person or order, a named 
 sum of money. 2 Dan. Neg. Inst. 528; Blair 
 v. Wilson, is Gratt (Va.) 170; Deener v. 
 Brown, 1 MacArth. (D. C.) 350; In re 
 Brown. 2 Sto. 502, Fed. Cas. No. 1,985. See 
 Chapman v.. White, 6 X. Y. 412. 57 Am. Dec. 
 404. ^ 
 
 A check Is a bill of exchange drawn on a bank, 
 payable on demand. Neg. Instr. Act § 185. 
 
 The chief differences between checks and bills of 
 exchange are: First, a check Is not due until pre- 
 sented, and, consequently, it can be negotiated any 
 time before presentment, and yet not subject the 
 holder to any equities existing between the previous 
 
 parties; Cruger v. Armstrong, 3 Johns. Cas. ' 
 5. 9, 2 Am. Dec. 12C; 9 B. & C. 388; Chit. Bi.. 
 
 16. Secondly, the drawer of a check is not 
 discharged for want of li 
 
 due di! .bile the drawer of a bill of ex- 
 
 change is. The drawer of a check is only discharged 
 by such neglect when he BU ual damage 
 
 by it, and then only pro tanto 
 Cow. i.\\ Y.) -is!; Mohawk Bank v. Brodi 
 Wend. (N. T.) 306; Little v. Bank. 2 Hill 
 See Case v. Morris, 31 Pa. 1 
 of the drawer of a check r< 
 the banker to pay it; while the death of the 
 of a bill of exchange does not alter the i | 
 
 the parties; 3 M. & G. 571-573. Fourti 
 unlike bills of exchange, are always payable 
 out grace; Woodruff v. Bank, 25 Wend. (N. V 
 Merchants' Bank of New York v. Woodruff. 
 (N. Y.) 174. See a discussion of this subject, 
 (Lacey's ed.) note on p. 571 of the index, comment- 
 ing upon opinion of Cowen, J., in Harker v. An- 
 derson, 21 Wend. (N. Y.) o7U. 
 
 Checks are.in use only between haul: 
 bankers and their customers, and are design- 
 ed to facilitate banking operations. It 
 their very ess-mce to be payable on demand, 
 because the contract between the banker and 
 oer is that the money is payable on 
 demand; Darker v. Anderson, 21 Wend. (N. 
 Y.) 372: In re Brown. L' Sto. 502, Fed 
 Xo. 1,985; Merchants' Nat Bank v. Bank, 
 
 10 Wall. (U. S.) GIT. 19 E. Ed. 1008; W 1 
 
 River Bank v. Bank, 36 Neb. 711, .V, X. W. 
 239. 
 
 As between the holder of a check and the 
 indorser it is required that due diligence be 
 used in presenting them; Lewis. Hubbard & 
 Co. v. Supply Co., 59 W. Va. 75, 52 s. E. 
 1017,4 E B. A. (X. Si 132; Start v. Tupper, 
 SI Yt. 19, G9 Atl. 151, l."> E B. A. (X. S.) 213, 
 130 Am. St. Bep. 1015: and it should he 
 protested in order to fix the liability of 
 indorsers; 3 Kent (Laceys ed.) 88; hut it is 
 not necessary to use diligence in presenting 
 an ordinary check, in order to charge the 
 drawer, unless he has received damage by 
 the delay; Buckner v. Finley, 2 Pet (U. s.» 
 586, 7 L. Ed. 528; Little v. Bank, 2 Hill <X. 
 Y.) 425; 'Daniels v. Kyle, 1 Ga. 304; 1' M. & 
 R. 401 ; Syracuse, B. & X. Y. B. Co. v. Col- 
 lins, 57 X. Y. 611; Burcell v. All 
 Gratt (Va.) TIM: Taylor v. Sip. 30 X. J. I.. 
 284; Stewart v. Smith, 17 Ohio St. 82; Mor- 
 rison v. McCai Mo. 183; Cork v. 
 Bacon, 45 Wis. 192, 30 Am. Rep. 71:.': Monte- 
 lius v. Charles, 76 ill. 303. If not pres 
 for payment within a reasonable time after 
 issue, the drawer will be dls from 
 liability thereon to the extent of the loss 
 caused by the delay; Neg. Instr. Act § l v <">. 
 Where one deposits a check in his banl-: and 
 it is collected and credited, it is equivalent 
 to payment to him in the ordinary cours 
 though presented to another bank and paid 
 over the counter; American Xat. Bank of 
 Nashville, Tenn.. v. Miller. 229 U. S. ."17, :;.'? 
 Sin.. Ct. 883, 57 L. Ed. . 
 
 In common with other kinds of negotia- 
 ble paper, they must contain an order to 
 pay money, and words of negotiability. This 
 enables a 60/10 fide bolder for value to col-
 
 CHECK 
 
 476 
 
 CHECK 
 
 lect the money without regard to the pre- 
 vious history of the paper; Swift v. Tyson, 
 16 Pet. (U. S.) 1, 10 L. Ed. 865 ; Coddington v. 
 Bay, 20 Johns. (N. Y.) 637, 11 Am. Dec. 342 ; 
 Bank of Mobile v. Brown, 42 Ala. 10S. 
 
 They must be properly signed by the per- 
 son or firm keeping the account at the 
 banker's, as it is part of the implied con- 
 tract of the banker that only checks so sign- 
 ed shall be paid. The words "Agt. Glass 
 Buildings" added to the signature of a check 
 used for paying an individual debt of the 
 agent, are enough to put the person receiving 
 it on inquiry as to his authority to use the 
 fund for such purpose; Gerard v. McCor- 
 mick, 130 N. Y. 261, 29 N. E. 115, 14 L. R. A. 
 234, and note reviewing cases. 
 
 Post-dated checks are payable on the day 
 of their date, although negotiated before- 
 hand. See Taylor v. Sip, 30 N. J. L. 284; 
 Mohawk Bank v. Broderick, 10 Wend. (N. 
 Y.) 304; In re Brown, 2 Sto. 502, Fed. Cas. 
 No. 1,9S5. Where all the parties to a check 
 reside in the same place, the holder has 
 until the day following its date or receipt 
 by him in which to present it. 
 
 A check, of itself, does not operate as an 
 assignment of any part of the funds to the 
 credit of the drawer with the bank, and the 
 bank is not liable to the holder unless and 
 until it accepts or certifies the check ; Neg. 
 Instr. Act § 189; Doherty v. Watson, 29 W. 
 N. C. (Pa.) 32. 
 
 Certified Checks. Checks are not to be 
 accepted, but presented at once for pay- 
 ment. There is a practice, however, of 
 marking checks "good," by the banker, which 
 fixes his responsibility to pay that particular 
 check when presented, and amounts, in fact, 
 to an acceptance; Merchants' Nat. Bank v. 
 Bank, 10 Wall. (U. S.) 648, 19 L. Ed. 1008. 
 Such a marking is called certifying; and 
 checks so marked are called certified checks. 
 See Meads v. Bank, 25 N. Y. 143, 82 Am. 
 Dec. 331; Seventh Nat Bank v. Cook, 73 
 Pa. 483, 13 Am. Rep. 751. The bank there- 
 by becomes the principal debtor; First Nat. 
 Bank of Jersey City v. Leach, 52 N. Y. 350, 
 11 Am. Rep. 708; Merchants' Nat. Bank v. 
 Bank, 10 Wall. (U. S.) 648, 19 L. Ed. 1008; 
 Morse, Banks & Banking 414; to the holder, 
 not the drawer; Girard Bank v. Bank, 39 
 Pa. 92, 80 Am. Dec. 507; Metropolitan Nat. 
 Bank of Chicago v. Jones, 137 111. 634, 27 N. 
 E. 533, 12 L. R. A. 492, 31 Am. St. Rep. 403 ; 
 Minot v. Russ, 156 Mass. 458, 31 N. E. 489, 
 16 L. R. A. 510, 32 Am. St. Rep. 472 ; First 
 Nat. Bank v. Whitman, 94 U. S. 343, 24 L. 
 Ed. 229; and the statute of limitation does 
 not run until demand made; Girard Bank v. 
 Bank, 39 Pa. 92, 80 Am. Dec. 507; and the 
 certifying after delivery at payee's instance 
 takes the amount thereof out of the hands 
 of the maker, and any loss by the insolvency 
 of the bank falls on the payee; Continental 
 Nat. Bank of Chicago v. Cornhouser & Co., 
 37 111. App. 475; Minot v. Russ, 156 Mass. 
 
 45S, 31 N. E. 4S9, 16 L. R. A. 510, 32 Am. St. 
 Rep. 472; where the holder of a check pro- 
 cures it to be accepted or certified, the draw- 
 er and all endorsers are discharged from 
 liability thereon; Neg. Instr. Act § 188; but 
 where certified to at maker's request he is 
 not discharged from liability ; Born v. Bank, 
 123 Ind. 78, 24 N. E. 173, 7 L. R. A. 442, 18 
 Am. St Rep. 312; Bickford v. Bank, 42 111. 
 238, 89 Am. Dec. 436; Mutual Nat Bank v. 
 Rotge, 28 La. Ann. 933, 26 Am. Rep. 126; 
 Randolph Nat. Bank v. Hornblower, 160 
 Mass. 401, 35 N. E. 850. 
 
 The bank cannot refuse to pay because 
 notified not to pay by the drawer; Freund v. 
 Bank, 12 Hun (N. Y.) 537; even where it 
 had been stolen and the holder acquired it 
 three years after certification; id.; nor gen- 
 erally can it set up that the check was forg- 
 ed, or that the drawer has no funds ; Espy v. 
 Bank, 18 Wall. (U. S.) 621, 21 L. Ed. 947. In 
 New York, it is held that certifying a check 
 warrants only the signature, and not the 
 terms of the check ; Security Bank of New 
 York v. Bank, 67 N. Y. 458, 23 Am. Rep. 129. 
 See First Nat. Bank of Chicago v. Bank, 40 
 111. App. 640 ; contra, Louisiana Nat. Bank v. 
 Bank, 28 La. Ann. 1S9, 26 Am. Rep. 92. 
 The certification is in effect merely an ac- 
 ceptance, and creates no trust in favor of 
 the holder of the check, and gives no lien on 
 any particular portion of the assets of the 
 bank; People v. Bank, 77 Hun 159, 28 N. Y. 
 Supp. 407. It has, however, been held that 
 a certified check operates as an assignment 
 of the funds to meet it, and makes the bank 
 liable to the holder; Blake v. Savings Bank 
 Co., 79 Ohio 189, 87 N. E. 73, 20 L. R. A. 
 (N. S.) 290, 128 Am. St. Rep. 6S4, 16 Ann. 
 Cas. 210. See supra. 
 
 Certification is equivalent to an accept- 
 ance ; Neg. Instr. Act § 187. 
 
 A statement by a bank officer that the 
 drawer's check was "good," or "all right," 
 will not constitute an acceptance of the 
 check; Espy v. Bank, 18 Wall. (U. S.) 604, 
 21 L. Ed. 947 ; but a parol acceptance has 
 been held sufficient; Pope v. Bank, 59 Barb. 
 (N. Y.) 226. A bank is not bound to accept 
 by telegram the checks or drafts of its de- 
 positors, although it be in possession of 
 funds to pay ; First Nat. Bank of Atchison 
 v. Bank, 74 Kan. 606, 87 Pac. 746, 8 L. R. 
 A. (N. S.) 1148, 118 Am. St. Rep. 340, 11 Ann. 
 Cas. 281. One relying on a telegram as an 
 acceptance should see to it that the language 
 used will, at least fairly, mean that; Myers 
 v. Bank, 27 111. App. 254. See Bank of 
 Springfield v. Bank, 30 Mo. App. 271, hold- 
 ing that a parol statement by a bank that 
 a check is good is not equivalent to a cer- 
 tification; nor does it release the holder 
 from the duty of proper diligence in pre- 
 sentment for payment. It binds the bank 
 to nothing more than that the statement 
 was true at the time when it was made. 
 But where the inquiry was, "Will you pay
 
 CHECK 
 
 477 
 
 CHECK 
 
 J. T.'s check on you for $22,000? Answer," 
 and the answer was, "J. T. is good. Send 
 on your paper," it was held an acceptance; 
 North Atchison Bank v. Garretson, 51 Fed. 
 168, 2 C. C. A. 145. And, generally, where 
 the party Inquiring takes the check in re- 
 liance upon such statement and for a valu- 
 able consideration, the bank will be liable; 
 Leach v. Hill, 10G la. 171, 76 X. W. 667; 
 l':i nncrs' & Merchants' Bank v. 'Dunbier. .".u 
 Neb. 487, 49 X. W. .'IT*;; Henrietta Xat. Bank 
 v. Bank, 80 Tex. 648, 16 S. W. 321, 26 Am. 
 St. Rep. 773. 
 
 A bank receiving a check for collection is 
 negligent in sending it to the drawee bank, 
 although it is the only bank in the place; 
 Winchester Mill Co. v. Bank. 120 Tenn. 225, 
 111 S. W. 248, 18 L. R. A. (N. S.) 441 ; Min- 
 neapolis S. & D. Co. v. Bank. 7G Minn. 136, 
 78 N. W. 980, 44 L. R. A. 504, 77 Am. St. 
 Rep- 609; Bank of Rocky Mount v. Floyd, 
 142 N. C. 187, 55 S. E. 95; American Ex- 
 change Nat. Bank v. Bank, 71 Mo. App. 451; 
 Wagner v. Crook, 167 Pa. 259, 31 Atl. 576. 
 40 Am. St. Rep. 672. But that such negli- 
 gence on the part of the forwarding bank 
 will not make it liable where there are no 
 funds to the credit of the drawer, or where 
 the drawee bank is insolvent, is held in 
 some cases : Carson, Pirie, Scott & Co. v. 
 Fincher, 129 Mich. 6S7, 89 N. W. 5,70, 95 
 Am. St. Rep. 449; First Nat. Bank v. Bank, 
 12 Tex. Civ. App. 318, 34 S. W. 458. Tn 
 Farmer's Bank & Trust Co. v. Newland, 97 
 Ky. 465, 31 S. W. 38, it was said that when 
 a customer deposits checks with a bank, for 
 collection at a distant point, he must know 
 the bank cannot send one of its agents to 
 make the collection. He is presumed to 
 know the method employed by banks in mak- 
 ing such collections. He has made the bank 
 his agent for that purpose, and he does it 
 with the implied understanding that the 
 bank will follow the customary method. 
 And where it was shown to be a universal 
 custom to send checks directly to the drawee 
 bank for collection, the custom was held 
 to amount to a good presentment for pay- 
 ment ; Kershaw v. Ladd. 34 Or. 375, 56 Pac. 
 402, 44 L. -R. A. 236; Wilson v. Bank, 1S7 
 111. 222, 58 N. E. 250, 52 L. R. A. 632. But 
 such a custom was held unreasonable and 
 bad ; Farley Nat. Bank v. Pollock & Bern- 
 heimer, 145 Ala. 321, 39 South. 612, 2 L. R. 
 A. (X. S.) 194, 117 Am. St. Rep. 44, 8 Ann. 
 Cas. 370. 
 
 The rule is well settled that a drawee ac- 
 cepts or pays at his peril a forged bill in 
 the hands of a holder in due course; 3 Burr. 
 135 1 ; for the reason that as between two per- 
 sons of equal equities, one of whom must 
 suffer, the one having legal title should pre- 
 vail; 4 H. L. R. 229; 16 id, 514; contra, 
 First Xat. Bank of Lisbon v. Bank, 15 X. D. 
 209. 108 X. W. 540. 10 L. R. A. (N. S.) 49, 
 125 Am. St. Rep. 588. 
 
 A bank which receives for deposit a check 
 
 on which the payee's indorsement has 
 forged, and collects its amount and pa; 
 over to the depositor, is liable to the pi 
 Fanner v. Bank, 100 Tenn. 187, 47 S. W 
 Buckley v. Bank, 35 N. J. L. 400, 10 Am. 
 Rep. 2!'. i. 
 
 An unrestricted indorsement of a draft is 
 a representation that the signature of the 
 drawer is genuine, upon which the dr 
 may rely, so that in case it proves to 
 forgery he may recover hack the monej 
 upon the draft to the indorse r : Ford - 
 v. Bank, 74 S. C. 180, 54 S. E. 204. 10 I.. R 
 A. (N. S.) 08, 114 Am. St. Rep. 9^0. 7 
 Cas. 711. 
 
 The depositor owes a duty to the bank to 
 use due diligence in examining the returned 
 pass books and vouchers. If he or his 
 clerk intrusted with the examination uses 
 such diligence, whether it results in the dis- 
 covery of the forgery or not, the dep 
 can recover from the bank the sums paid 
 out; Frank v. Bank. 84 X. Y. 21.°.. "S Am. 
 Rep. 501. If, however, the examining clerk 
 Is the forger and conceals the result of the 
 examination from the depositor, the bank 
 will not be liable; First Xat. Rank of Bir- 
 mingham v. Allen, ion Ala. 470. 14 South. 335, 
 27 L. R. A. 420. 46 Am. St. Rep. 80: Leather 
 Mfrs. Rank v. Morgan, 117 U. S. 96, 6 Sup. 
 Ct. 657, 29 L. Ed. 811; Dana v. Rank. 132 
 Mass. 156; Myers v. Rank. 193 Pa. 1. !l 
 Atl. 280. 74 Am. St. Rep. 672. When the de- 
 positor has knowledge that his forced check 
 has been paid by the bank, he must prompt- 
 ly srive notice to the bank in order to hold it 
 liable for the loss ; McXeely Co. v. Bank. 
 221 Pa. 5S8, 70 Atl. 588. 20 L. R. A. (N. S.) 
 79: Myers v. Bank. 198 Pa. 1, 44 Atl. 280, 
 74 Am. St. Rep. 072; Critten v. Rank. 171 
 N. T. 228, 63 N. E. 909. 57 L. R. A. 529; V. 
 S. v. Rank. 45 Fed. 163. But the depositor's 
 delay is not a defence unless the bank shows 
 some injury caused thereby ; Murphy v. 
 Bank, 191 Mass. 159, 77 N. E. 693, 114 Am. 
 St. Rep. 595; Janin v. Rank. 92 Cal. 14. 27 
 Pac. 1100, 14 L. 'R. A. 320. 27 Am. St. Rep. 
 82: Third Xat. Rank of City of Xew York 
 v. Rank. 76 Hun 475, 27 X. Y. Snpp. 1070: 
 contra. McXeely Co. v. Rank, 221 Pa. 588, 
 70 Atl. 891. 20 L. R. A. (N. S.t 79. 
 
 To entitle one who, by mistake, has paid 
 out monejf on a forged endorsement of a 
 check or other commercial paper, to recover 
 back the same, notice must, within a rea- 
 sonable time after discovery, be given to the 
 party receiving such payment: National Ex- 
 change Bank v. U. S.. 151 Fed. 402. 80 C. C. 
 A. 632; 3 Kent 85, Holmes' note; but this 
 does not apply to the payment to a bank of 
 a pension check by the sub-treasury upon 
 a forged endorsement; U. S. v. Rank. 211 
 F. 8. 302, 29 Sup. Ct. 665. 53 L. Ed. 1000. 
 10 Ann. Cas. 1184 
 
 Crossed Checks. The practice of crossing 
 checks originated at the clearing house, the 
 clerks of the different bankers who did busi-
 
 CHECK 
 
 478 
 
 CHECK 
 
 ness there having been accustomed to write 
 across the checks the names of their em- 
 ployers, so as to enable the clearing house 
 clerks to make up their accounts. It after- 
 wards became a common practice to cross 
 checks which were not intended to go 
 through the clearing house, with the name 
 of a banker or with "& Co.," and a custom 
 or usage grew up in regard to this also ; 7 
 Exch. 389, which held the practice of cross- 
 ing checks to be a safeguard to the owner 
 and not to restrict their negotiability. 
 
 A check is said to be specially crossed 
 when the name of a bank or banking firm is 
 written across the face of the check (it is 
 then payable only to the bank indicated), 
 and it is said to be generally crossed when 
 the words "and company" or any abbrevia- 
 tion thereof, usually "& Co.," between two 
 parallel transverse lines are written across 
 the check (it must then be paid only to some 
 bank). Another form of the general cross- 
 ing is recognized by the later English stat- 
 utes which consists merely of two parallel 
 transverse lines across the face of the checks 
 without any words ; Farmers' Bank v. John- 
 son, King & Co., 134 Ga. 486, 68 S. E. 85, 30 
 L. R. A. (N. S.) 697, 137 Am. St. Rep. 242. 
 
 Crossed checks in England are now gov- 
 erned by the Bill of Exchange Act of 1SS2, 
 providing that where a banker in good faith 
 and without negligence receives payment 
 from a customer of a crossed check, and the 
 customer has no title, or a defective title 
 thereto, the banker shall not incur any lia- 
 bility to the true owner of the check by rea- 
 son only of having received such payment; 
 [1903] A. C. 240, affirming [1902] 1 K. B. 242 ; 
 [1904] 2 K. B. 465. 
 
 The effect of crossing a check with the 
 name of a banker means a direction to the 
 drawee, by the owner, to pay it only through 
 the banker ; disregard of this direction 
 would be evidence of negligence if payment 
 were made to one who was not the lawful 
 owner; 7 Exch. 389. By 19 & 20 Vict. c. 
 25, this custom was made statutory ; 1 Q. 
 B. Div. 31. 
 
 In the United States the system of "cross- 
 ed checks," strictly so called, is unknown. 
 But of late the germ of a similar custom has 
 begun to manifest itself. (^casionally 
 checks have stamped or written upon them 
 some form of words which is intended to 
 secure their payment exclusively through 
 the Clearing House. 
 
 Where a check was stamped at the time 
 it was drawn with the words "payable 
 trough (a named bank) at current rate," it 
 was held a material part of the direction, 
 and the drawee bank was not required to 
 pay the check when not presented through 
 the bank thus named ; Farmers' Bank v. 
 Johnson, King & Co., 134 Ga. 486, 68 S. E. 
 85, 30 L. R. A. (N. S.) 697, 137 Am. St Rep. 
 242. 
 
 There is a practice of writing across 
 
 checks "memorandum," or "mem." They are 
 given thus, not as an ordinary check, but 
 as a memorandum of indebtedness; and be- 
 tween the original parties this seems to be 
 their only effect In the hands of a third 
 party, for value, they have, however, all the 
 force of checks without such word of restric- 
 tion ; Franklin Bank v. Freeman, 16 Pick. 
 (Mass.) 53p; Dykers v. Bank, 11 Paige (N. 
 Y.) 612; Story, Pr. Notes § 499. See IN- 
 DORSEMENT. 
 
 Giving a check is not payment unless 
 the check is paid ; Cromwell v. Lovett, 1 
 Hall (N. Y.) 64; Franklin v. Vanderpool, 1 
 Hall (N. Y.) 88; L. R. 10 Ex. 153; Small v. 
 Mining Co., 99 Mass. 277; Sweet v. Titus, 4 
 Hun (N. Y.) 639; Heartt v. Rhodes, 66 111. 
 351; Patton's Adm'rs v. Ash, 7 S. & R. (Pa.) 
 116. But a tender was held good wben 
 made by a check contained in a letter, re- 
 questing a receipt in return, which the plain- 
 tiff sent back, demanding a larger sum, with- 
 out objecting to the nature of the tender; 
 and receiving a check marked "good" is pay- 
 ment; 2 Dan. Neg. Inst. 559. See Payment. 
 
 CHECKBOOK. A book containing blanks 
 for. checks. 
 
 These books are so arranged as to leave a margin, 
 called by merchants a stump, or stubb, when the 
 check is filled out and torn off. Upon these stumps 
 a memorandum is made of the date of the check, 
 the payee, and the amount ; and this memorandum, 
 in connection with the evidence of the party under 
 oath, is evidence of the facts there recorded. 
 
 CHECK ROOM. The owner of property 
 lost while in a railroad check room can re- 
 cover without proof of negligence on the 
 part of the railroad company ; Terry v. Ry., 
 SI S. C. 279, 62 S. E. 249, 18 L. R. A. (N. S.) 
 295. 
 
 CHECQUE. See Check. 
 
 CHEMICAL ANALYSIS. The court takes 
 judicial notice that to analyze a beverage 
 requires not only learning and skill in chem- 
 istry, but instruments and appliances not in 
 common use; State v. Powell, 141 N. C 780, 
 53 S. E. 515, 6 D. R. A. (N. S.) 477. 
 
 C HEM IN (Fr.). The road wherein every 
 man goes; the king's highway. Called in 
 law Latin via regia. Termes de la Ley; 
 Cowell; Spelman, Gloss. 
 
 C H E M I ST. See Apothecary ; Druggist. 
 
 CHEROKEE NATION. One of the Civil- 
 ized Indian tribes. See Indian; Indian 
 
 Tribe. 
 
 CHEVAGE. A sum of money paid by vil- 
 leins to their lords in acknowledgment of 
 their villenage. 
 
 It was paid to the lord in token of his being chief 
 or head. It was exacted for permission to marry, 
 and also permission to remain without the dominion 
 of the lord. When paid to the king, it was called 
 subjection. Termes de la Ley; Co. Litt. 140 a; 
 Spelman, Gloss. 
 
 CHEVANTIA. A loan, or advance of 
 money on credit
 
 CHEVISANCE 
 
 479 
 
 CHILD 
 
 CHEVISANCE (Fr. agreement). A bar- 
 gain or contract. An unlawful bargain or 
 contract. 
 
 CHICKASAW NATION. One of the Civil- 
 ized Indian tribes. See Indian; Indian 
 Tribe. 
 
 CHIEF. One who is put above the rest. 
 
 Principal The best of a number of things. 
 
 D iteration in chief is a declaration for 
 
 the principal cause of action. 1 Tidd, Pr. 
 419. 
 
 Examination in chief is the first examina- 
 tion of a witness by the party who produces 
 him. 1 Greenl. Ev. § 445. 
 
 Tenant in chief was one who held directly 
 of the king. 1 Washb. R. P. *19. 
 
 CHIEF BARON. The title of the chief 
 justice of the English court of exchequer. 3 
 Bla. Com. 44. 
 
 CHIEF JUDGE. In some states the pre- 
 siding judge is thus styled, as in the New 
 York Court of Appeals and the Maryland 
 Court of Appeals. The term is also used in 
 1 Tyler (Vt.) with "assistant" judge for the 
 puisne. 
 
 CHIEF JUSTICE. The presiding or prin- 
 cipal judge of a court. 
 
 CHIEF JUSTICIAR. See Justiciar. 
 
 CHIEF LORD. The immediate lord of the 
 fee. Burton, R. P. 317. 
 
 CHIEF PLEDGE. The borsholder, or 
 chief of the borough. Spelman, Gloss. 
 
 CHILD. The son or daughter, in relation 
 to the father or mother. 
 
 Illegitimate children are bastards. Legiti- 
 mate children are those born in lawful wed- 
 lock. Natural children are illegitimate chil- 
 dren. Posthumous children are those born 
 after the death of the father. 
 
 Children born in lawful wedlock, or with- 
 in a competent time afterwards, are presum- 
 ed to be the issue of the father, and follow 
 his condition ; but this presumption may be 
 repelled by the proof of such facts tending 
 to establish non-intercourse as may satisfy 
 a jury to the contrary ; Field, Inf. 40 ; 3 C. 
 & P. 215, 427 ; 13 Ves. Ch. 58 ; Cross v. Cross, 
 3 Paige, Ch. (N. Y.) 139, 23 Am. Dec. 778; 
 Com. v. Shepherd, 6 Binn. (Pa.) 2SG, 6 Am. 
 Dec. 449; Barden v. Barden, 14 N. C. 548. 
 See Blackburn v. Crawford, 3 Wall. (U. S.) 
 175, 18 L. Ed. 186. See Access. Those bom 
 out of lawful wedlock follow the condition 
 of the mother. 
 
 The term children does not, ordinarily and 
 properly speaking, comprehend grandchil- 
 dren, or issue generally ; yet sometimes that 
 meaniug is given to it in cases of necessity; 
 6 Co. 16; 14 Ves. 576; Adams v. Law, 17 
 How. (U. S.) 417, 15 L. Ed. 149; MeGuire 
 v. Westmoreland. 36 Ala. 594 ; Thomson v. 
 Ludington, 104 Mass. 193. And it has been 
 
 held to signify the same as issue, in i 
 where the testator, by using the terms chil- 
 dren and issue indiscriminately, showed his 
 intention to use the former term in the sense 
 of issue, so as to entitle grandchildren, etc., 
 to take under it; 1 Ves. Sen. Ch. 196; 
 Mowatt v. Carow, 7 Paige, Ch. (N. Y. 
 .".•-' Am. Dec. 641; Ruff v. Rutherfurd, 1 Bail. 
 Eq. (S. C.) 7; Dickinson v. Watts 
 
 (Pa.) 82, 28 Am. Dec. 6S4 ; 3 « 
 Dig. 213. See Walker v. Williami 
 7>\'.i; Appeal of Castner, 88 Pa. 478. 
 
 It is a rule of decision in England that 
 the word "children" means legitimate chil- 
 dren; 7 Ves. 458; 31 Ch. D. 542; L, It. 7 IT. 
 L. 568; and such is the general nilo in this 
 country; Gardner v. Ileyer, 2 Paige (N. Y.) 
 11 ; Heater v. Van Auken, 14 X. J. Eq. 159; 
 Thompson v. McDonald, 22 X. C. 4<;::; Gates 
 v. Seibert; 157 Mo. 254, 57 S. W. 10 
 Am. St. Rep. 625; In re Scholl's Will, 100 
 Wis. 650, 76 X. W. 616; Bealafeld v. Slaugh- 
 enhaupt, 213 Pa. 565, <!2 Atl. 1113; although 
 illegitimate children may be considered as 
 included by express designation or nec> 
 implication; Stewart v. Stewart, .".1 X. J. 
 Eq. 398; Collins v. Hoxie, 9 Paige (N. Y. ) 
 81; Bennett v. Toler, 15 Grat. (Va.) 5i 
 Am. Dec. 638; Morton's Estate v. Morton. 62 
 Xeb. 420, 87 X. W. 182; and when the term 
 is used in a will, there must be evidence to 
 be collected from the will itself, or extrinsi- 
 cally, to show affirmatively that the tes 
 intended that his illegitimate children should 
 take, or they will not be included: 1 V. & 
 B. 422; 4 Kent 346, 414, 410; 6 II. I. 
 Palmer v. Horn, 84 N. Y. 516. See Bastard. 
 
 The question whether the term "child" 
 can include "twins" is said not to have been 
 raised in any English c;ise, in 70 Alb. I.. J. 
 2, where an interesting foreign cm - 
 but no decision is stated. No American case 
 on the point has been found. 
 
 Posthumous children inherit, in all cases, 
 in like manner as if they had been born in 
 the lifetime of the intestate and had sur- 
 vived him; 2 Greenl. Cruise, Dig. 1 
 Kent 412. See 2 Washb. R. P. 439, I 
 
 In Pennsylvania ; act of 1836, p. 250; and 
 in some other states; Rhode Island, Rev. 
 Stat tit. xxiv. e. 154, ? id; Bancroft v. Ives, 
 3 Gray (Mass.) 367; the will of their fathers 
 or mothers In which no provision is made 
 for them is revoked, as far as regards them, 
 by operation of Law; Coates v. Hughes, 3 
 Binn. (Pa.) 498; Panics v. Barker, 5 Wash. 
 390, 31 I'iic 976. In Iowa a will is revoked 
 by the birth of a child after its execution: 
 Ware v. Wisner, 50 Fed. 310. See, as to 
 the law of Virginia on this subject, Arnii- 
 stead v. Dangerfleld, 3 Munf. (Va.) 20, 5 
 Am. Dec. 501. 
 
 An elaborate statute known as the Chil- 
 dren's Act. 1908, was passed December 21, 
 1908, in England to consolidate and amend 
 the law on that subject. It consists of 134 
 sections covering the divisions of infant life
 
 CHILD 
 
 480 
 
 CHILD 
 
 protection, prevention of cruelty to children, 
 juvenile smoking, reformatory and industrial 
 schools, juvenile offenders and miscellaneous 
 and general provisions; L. R. 46 Stat. 453. 
 
 See Age; In Ventre sa Mere. As to their 
 competency as witnesses, see Witness. And 
 see Parent and Child. 
 
 The courts construe these laws liberally 
 as within the police powers of a state and 
 they are generally upheld, the rule having 
 been laid down that the courts will not in- 
 terfere with the legislative action in regard 
 to such regulations; In re Weber, 149 Cal. 
 302, SO Pac. 809. Statutes have been held 
 constitutional forbidding the employment of 
 children under twelve years of age in fac- 
 tories ; Starnes v. Mfg. Co., 147 N. C. 556, 61 
 S. E. 525, 17 L. R. A. (N. S.) 602, 15 Ann. 
 Cas. 470 ; of children under fourteen years 
 of age in factories ; In re Spencer, 149 Cal. 
 396, S6 Pac. 896, 117 Am. St. Rep. 137, 9 
 Ann. Cas. 1105 ; Bryant v. Hardware Co., 76 
 N. J. L. 45, 69 Atl. 23 ; City of New York v. 
 Chelsa Jute Mills, 43 Misc. 266, 88 N. Y. 
 Supp. 1085 ; under sixteen years of age in 
 factories ; People v. Taylor, 124 App. Div. 
 434, 108 N. Y. Supp. 796; or in coal mines; 
 Collett v. Scott, 30 Pa. Super. Ct. 430 ; or the 
 employment of minors under sixteen years 
 of age over ten hours a day or over six days 
 a week ; State v. Shorey, 48 Or. 396, 86 Pac. 
 S81, 24 L. R. A. (N. S.) 1121; or girls under 
 fourteen years of age as dancers or in the- 
 aters; People v. Ewer, 141 N. Y. 129, 36 N. 
 E. 4, 25 L. R. A. 794, 38 Am. St. Rep. 788. 
 Other cases in which statutes limit the hours 
 which women and children may be employed 
 are Stehle v. Mach. Co., 220 Pa. 617, 69 Atl. 
 1116, 14 Ann. Cas. 122; Com. v. Mfg. Co., 
 120 Mass. 383; and see generally as to the 
 constitutionality of such laws ; 65 L. R. A. 
 33, note, and 12 L. R. A. (N. S.) 1130, note. 
 
 The question has been much discussed 
 whether one employing a child under the 
 statutory age may set up contributory neg- 
 ligence or assumption of risk to defeat lia- 
 bility for personal injury. In New York, re- 
 versing the lower court, it was held error to 
 exclude testimony on the question of con- 
 tributory negligence, and to hold as a matter 
 of law that the question could not be consid- 
 ered ; Lee v. Mfg. Co., 115 App. Div. 589, 101 
 N. Y. Supp. 78. It is held that contributory 
 negligence could not be set up; American 
 Car & Foundry Co. v. Armentraut, 214 111. 
 509, 73 N: E. 766; Lenahan v. Min. Co., 218 
 Pa. 311, 67 Atl. 642, 12 L. R. A. (N. S.) 461, 
 120 Am. St Rep. 885; Inland Steel Co. v. 
 Yedinak, 172 Ind. 423, 87 N. E. 229, 139 
 Am. St. Rep. 389; Nairn v. Biscuit Co., 120 
 Mo. App. 144, 96 S. W. 679. In other cases, 
 it is held that contributory negligence is a 
 question for the jury, with due considera- 
 tion of the tender age of the child; Queen 
 v. Iron Co., 95 Tenn. 458, 32 S. W. 460, 30 
 L. R. A. 82, 49 Am. St Rep. 935; Morris v. 
 
 Stanfield, 81 111. App. 264; Sterling v. Car- 
 bide Co., 142 Mich. 284, 105 N. W. 755. In 
 Marino v. Lehmaier, 173 N. Y. 530, 66 N. E. 
 572, 61 L R. A. 811, it was held that a child 
 of a forbidden age was not, as a matter of 
 law, chargeable with contributory negligence 
 or with assumption of risk. In that case it 
 was also decided that the fact that a pen- 
 alty was prescribed by the act did not pre- 
 vent the injured child from having an action 
 for damages. The defense of contributory 
 negligence was also allowed in the case of a 
 child employed in violation of the statute 
 where he was shown to be familiar with the 
 construction of the machine by which he 
 was injured ; Borck v. Bolt & Nut Works, 
 111 Mich. 129, 69 N. W. 254 ; and in another 
 case it was held error not to have with- 
 drawn the case from the jury, although the 
 plaintiff was employed in violation of the 
 statute ; Beghold v. Auto Body Co., 149 Mich. 
 14, 112 N. W. 691, 14 L. R. A. (N. S.) 609. 
 In North Carolina, before the enactment 
 of the statute, it was held that in an action 
 by a child of nine years for injury the evi- 
 dence as to the youth, inexperience and ig- 
 norance of the child, the failure of the com- 
 pany to instruct him was properly left to the 
 jury on the question of the negligence of the 
 company and the contributory negligence of 
 the infant employs ; Fitzgerald v. Furniture 
 Co., 131 N. C. 637, 42 S. E. 946, where the 
 legislation on the subject up to that time is 
 summarized. After the passage of a state 
 statute on the subject the employment of 
 the child in violation of the statute was held 
 to be evidence of negligence to be submit- 
 ted to the jury, as also the question of con- 
 tributory negligence; Rolin v. Tobacco Co., 
 
 141 N. C. 300, 53 S. E. 891, 7 L. R. A. (N. S.) 
 335, 8 Ann. Cas. 638. 
 
 The violation of a statute forbidding the 
 employment of children under a certain age, 
 or at certain specified work, or specifying 
 conditions to be complied with, is negligence 
 per se, in an action by the child for injury ; 
 American Car & Foundry Co. v. Armentraut 
 214 111. 509 ; Nickey v. Steuder, 164 Ind. 189, 
 73 N. E. 117 ; Brower v. Locke, 31 Ind. App. 
 353, 67 N. E. 1015; Queen v. Iron Co., 95 
 Tenn. 458, 32 S. W. 460, 30 L. R. A. 82, 49 
 Am. St. Rep. 935 ; Cooke v. Mfg. Co., 33 Hun 
 (N. Y.) 351; Woolf v. Nauman Co., 128 la. 
 261, 103 N. W. 785 ; Sterling v. Carbide Co., 
 
 142 Mich. 284, 105 N. W. 755. 
 
 But in Perry v. Tozer, 90 Minn. 431, 97 N. 
 W. 137, 101 Am. St. Rep. 416, it was held 
 that while employment in violation of the 
 statute was prima facie evidence of negli- 
 gence, it might be rebutted by proof of due 
 care or of contributory negligence, the viola- 
 tion of a statute merely shifting the burden 
 of proof. In Breckenridge v. Reagan, 22 
 Ohio C. C. 71, the employment in violation of 
 a statute was held "some evidence" of neg- 
 ligence.
 
 CHILDWIT 
 
 481 
 
 CHINA 
 
 CHILDWIT (Sax.). A power to take a fine 
 from a bondwoman gotten with child without 
 the lord's consent 
 
 By custom in Essex county, England, every re- 
 puted father of a bastard child was obliged to pay 
 a small flue to the lord. This custom is known as 
 childwit. Cowell. 
 
 CHILTERN HUNDREDS. The offices of 
 steward or bailiff of His Maj. -sty's three 
 Chiltern Hundreds of Stoke, Desborough, 
 and Bonenham; or the steward of the 
 Manor of Northsted. These offices have 
 sometimes been refused, but they are or- 
 dinarily given to any member of the House 
 of Commons who applies for them as a 
 means of ceasing to be a member of the 
 House, an office which cannot be resigned; 
 but which becomes vacant upon the accept- 
 ance of any other office by a member. The 
 office is retained until the appointment is 
 revoked to make way for the appointment 
 of another holder. The practice began about 
 1750. The offices of steward of the Manor of 
 East Hendred and Hempholme were last used 
 for this purpose in 1840 and 1S05 respective- 
 ly. Chiltern Hundreds is an appointment 
 under the hand and seal of the Chancellor of 
 the Exchequer. In 1SG1, and since, the words 
 "reposing especial trust and confidence," etc., 
 were omitted. May, Pari. Pr. G42. 
 
 CHIMIN. See Chemin. 
 
 CHIMINAGE. A toll for passing on a way 
 through a forest; called in the civil law 
 pedagium. Cowell. See Co. Litt 56 a; Spel- 
 man, Gloss. ; Termes de la Ley; Baldwin's 
 Ed. of Britton, 63. 
 
 CHIMIN US. The way by which the king 
 and all his subjects and all under his protec- 
 tion have a right to pass, though the prop- 
 erty of the soil of each side wnere the way 
 lieth may belong to a private man. Cowell. 
 
 CHIMNEY MONEY. See Hearth Monet; 
 
 FUMAGE. 
 
 CHINA. By Act of June 30, 1906, a "Unit- 
 ed States Court for China" is created to 
 which is given the jurisdiction formerly ex- 
 ercised by consuls and ministers, except as 
 mentioned in the title Consular Courts. It 
 is held by one judge appointed by the Presi- 
 dent, with the consent of the Senate (salary 
 $8000, term of office ten years). It sits at 
 Shanghai, and, at stated periods, at Canton, 
 Tientsin and Hankan. An appeal to it lies 
 from all consular courts of China (and of 
 Korea so long as the right of extraterritoriali- 
 ty shall obtain in favor of the United Suites). 
 It has supervisory control over consuls and 
 vice-consuls in respect of the estates of de- 
 cedents in China. 
 
 Its procedure is in accordance, so far as 
 practicable, with that prescribed by the Re- 
 vised Statutes for consular courts in China, 
 but it may modify and supplement such 
 rules. Its jurisdiction is exercised in ac- 
 cordance with treaties and law of the United 
 Bouv.— 31 
 
 States, and where these are deficient or uu 
 suitable, then in accordance with the common 
 law and the law established by United 
 States courts. 
 
 An appeal lies to the Circuit Court of Ap- 
 peals of the Ninth Circuit and appeals and 
 writs of error may be taken thence to the 
 Supreme Court in the same class of <ases as 
 those in which they are permitted in cases 
 coming to the former court from the Dis- 
 trict Court. 
 
 See Chinese. 
 
 CHINESE. Stringent laws for the eutire 
 exclusion of Chinese from the United SI 
 have been passed in the Pacific states, many 
 of which have been decided to be uncon- 
 stitutional ; as is an ordinance that every 
 male person imprisoned in the county jail 
 should have his hair cut short; Ho Ah 
 Kow v. Nunan, 5 Sawy. 552, Fed. Cas. No. 
 A statute forbidding the employment 
 of Chinamen on public works, etc., is void, as 
 contravening the Burlingame treaty and the 
 14th amendment; Baker v. Portland, 5 Sawy. 
 566, Fed. Cas. No. 777; In re Tiburcio Par- 
 rott, 1 Fed. 481. So is an act forbidding 
 Chinamen to fish for the purpose of sale ; In 
 re Ah Chong, 2 Fed. 7:;:;. But a state law 
 forbidding the exhumation of dead bodies 
 and their removal, without a permit, is not 
 invalid when applied to the removal of bodies 
 of Chinamen who have been buried in Cali- 
 fornia ; it is a merely sanitary regulation ; 
 In re Wong Yung Quy, 2 Fed. 624. 
 
 The convention between the United States 
 and China of 1S94 provided that Chinese la- 
 borers or Chinese of any other class, either 
 permanently or temporarily residing in the 
 United States shall have for the protection 
 of their persons and property all rights that 
 are given by the laws of the United States 
 to citizens of the most favored nation, ex- 
 cepting the right to become naturalized citi 
 zens; 28 Stat. L. 1211. 
 
 Teachers, officials, students, etc., have the 
 privilege of coming to and residing in the 
 United States on presentation of a certifi- 
 cate from their government, or the govern- 
 ment where they last resided vis£d by the 
 diplomatic or consular representative of the 
 United States in the country or port whence 
 they departed. Upon application for admis- 
 sion this certificate is prima facie evidence of 
 the facts set forth therein. One cannot be 
 deported unless there is evidence to over- 
 come the legal effect of the certificate; Liu 
 Hop Fong v. U. S., 209 U. S. 453, 28 Sup. Ct. 
 576, 52 L. Ed. 888. 
 
 The regulations of the treasury department 
 of Dec. 8, 1900, governing the privilege of 
 transit by Chinese laborers across the ter- 
 ritory of the United States which require 
 that evidence be produced which shall satis- 
 fy the collector of customs that a bona fide 
 transit only was intended were authorized 
 by the provision of the treaty with China of
 
 CHINESE 
 
 482 
 
 CHINESE 
 
 March 17, 1894 (28 Stat. L. 1211) that Chinese 
 laborers shall continue to enjoy such privi- 
 lege of transit, subject to such regulations by 
 the government of the United States as may 
 *)e necessary to prevent abuse of the priv- 
 ilege ; Fok Yung Yo v. U. S., 1S5 U. S. 296, 
 22 Sup. Ct. 6S6, 46 L. Ed. 917 ; Lee Lung v. 
 Patterson, 186 U. S. 168, 22 Sup. Ct. 795, 46 
 L. Ed. 1108. 
 
 Chinese persons born out of the United 
 States, remaining subjects of China, are en- 
 titled to the protection of and owe allegiance 
 to the United States so long as they are per- 
 tnitted by the United States to reside here, 
 and are subject to the jurisdiction thereof 
 in the same sense as all other aliens residing 
 In the United States; Yick Wo v. Hopkins, 
 LIS U. S. 356, 6 Sup. Ct 1064, 30 L. Ed. 220 ; 
 Lau Ou Bew v. U. S., 144 U. S. 47, 12 Sup. 
 Ct. 517, 36 L. Ed. 340 ; Fong Yue Ting v. U. 
 S., 149 U. S. 698, 13 Sup. Ct. 1016, 37 L. Ed. 
 W5 ; Lem Moon Sing v. U. S., 158 U. S. 538, 
 L5 Sup. Ct. 967, 39 L. Ed. 10S2 ; Wong Wing 
 v. U. S., 163 U. S. 228, 16 Sup. Ct. 977, 41 
 L. Ed. 140; U. S. v. Wong Kim Ark, 169 U. 
 S. 649, IS Sup. Ct. 456, 42 L. Ed. 890. 
 
 The failure of a Chinese laborer to reg- 
 ister, as required by act of Congress, May 
 5, 1892, is held not to be excused by the fact 
 that after the commencement of the time 
 allowed for registration, but before its ex- 
 piration, he was convicted and imprisoned 
 for crime ; U. S. v. Ah Poing, 69 Fed. 972. 
 
 Act of Nov. 3, 1893 (exclusion act), applies 
 to Chinese persons who, having left the coun- 
 try before its passage, afterwards sought to 
 return; Lew Jim v. U. S., 66 Fed. 953, 14 
 C. C. A. 281. A Chinaman, who during half 
 his time is engaged in cutting and sewing 
 garments for sale by a firm of which he is a 
 member, is not a merchant within the exclu- 
 sion act ; Lai Moy v. U. S., 66 Fed. 955, 14 C. 
 C. A. 283. 
 
 The Chinese exclusion acts cannot control 
 the meaning or impair the effect of the con- 
 stitutional amendment but must be construed 
 and executed in subordination to its provi- 
 sions; U. S. v. Wong Kim Ark, 169 U. S. 649, 
 18 Sup. Ct. 456, 42 L. Ed. 890 ; and the right 
 of the United States as exercised by and un- 
 der these acts, to exclude or expel from the 
 country persons of the Chinese race, born in 
 China and continuing to be subjects thereof, 
 though having acquired a commercial domicil 
 in the United States, has been upheld, for 
 reasons applicable to all aliens alike, and in- 
 applicable to citizens of whatever race or 
 color; Chae Chan Ping v. U. S., 130 U. S. 
 5S1, 9 Sup. Ct. 623, 32 L. Ed. 1068; Nishi- 
 mura Etiu v. U. S., 142 U. S. 651, 12 Sup. Ct. 
 336, 35 L. Ed. 1146 ; Fong Yue Ting v. U. S., 
 149 U. S. 698, 13 Sup. Ct. 1016, 37 L. Ed. 905 ; 
 Lem Moon Sing v. U. S., 158 U. S. 53S, 15 
 Sup. Ct. 967, 39 L. Ed. 10S2 ; Wong Wing v. 
 U. S., 163 U. S. 22S, 16 Sup. Ct. 977, 41 L. 
 Ed. 140. A Chinaman, within the United 
 
 States who resists deportation on the ground 
 that he is an American born citizen may not 
 be deported until the right to do so has been 
 ascertained ; Moy Suey v. U. S., 147 Fed. 697, 
 78 C. C. A. 85. It was considered that the 
 case was radically different from that of a 
 Chinese citizen who left the United States 
 and was excluded on his return, in which 
 case it was held that the decision of the im- 
 migration officers was final unless reversed 
 by the Secretary of Commerce and Labor, 
 and was not ' reviewable by the federal 
 courts; U. S. v. Ju Toy, 198 U. S. 253, 25 
 Sup. Ct. 644, 49 L. Ed. 1040. 
 
 The constitutionality of the power of the 
 Secretary, in cases where the alienage is ad- 
 mitted, is settled; Nishimura Ekiu v. U. S., 
 142 U. S. 651, 12 Sup. Ct. 336, 35 L. Ed. 1146 ; 
 and also that one who claims citizenship 
 cannot resort to the courts before prosecuting 
 an appeal to the Secretary; U. S. v. Sing 
 Tuck, 194 U. S. 161, 24 Sup. Ct. 621, 48 L. 
 Ed. 917 ; as a citizen could not be excluded 
 from the country except as a punishment for 
 crime ; In re Sing Tuck, 126 Fed. 386 ; Lee 
 Sing Far v. U. S., 94 Fed. 834, 35 C. C. A. 
 327; it may reasonably be contended that 
 the determination of this constitutional right 
 is a judicial and not an executive function, 
 and therefore it is a question whether the de- 
 cision of an executive official upon it is due 
 process of law; Japanese Immigrant Case, 
 189 U. S. 86, 23 Sup. Ct. 611, 47 L. Ed. 721. 
 By section 3 of the Geary Act the burden 
 of proving affirmatively his right to remain 
 in the country rests upon a Chinaman who 
 has been arrested for being here illegally and 
 the act raising this presumption of guilt is 
 valid; U. S. v. Chun Hoy, 111 Fed. 899, 50 
 C. C. A. 57 ; the presumption, it is said, 
 should be viewed under the rule of evidence 
 as to facts peculiarly within the knowledge 
 of the accused; 11 Y. L. J. 262; and its 
 harshness arose mainly from the penalty im- 
 posed by section 4; In re Sing Lee, 54 Fed. 
 334; Fong Yue Ting v. U. S., 149 U. S. 698, 
 13 Sup. Ct. 1016, 37 L. Ed. 905, which section 
 was held unconstitutional; U. S. v. Wong 
 Dep Ken, 57 Fed. 206. 
 See China. 
 
 CHIPPINGAVEL. A toll for buying and 
 selling. A tax imposed on goods brought for 
 sale. Whishaw; Blount. 
 
 CHIRGEM0TE (spelled, also, Chirchge- 
 mote, Circgemote, Kirkmote; Sax. circge- 
 mote, from circ, civic, or cyric, a church, and 
 gemot, a meeting or assembly). 
 
 In Saxon Law. An ecclesiastical court or 
 assembly (Jorum ecclesiasticum) ; a synod ; a 
 meeting in a church or vestry. Blount; Spelm. 
 Gloss.; Hen. I. cc. 4, 8; Co. 4th Inst. 321; 
 Cunningh. Law Diet. 
 
 CHIROGRAPH (Lat. chirographa) . A 
 deed or public instrument in writing. 
 
 Chirographs were anciently attested by the sub- 
 scription and crosses of witnesses. Afterwards, to
 
 CHIROGRAPH 
 
 483 
 
 CHOSE IN ACTION 
 
 prevent frauds and concealments, deeds of mutual 
 covenant were made in a script and rescript, or in a 
 part aud counter-part : and in the middle, between 
 the two copies, they drew the capital letters of the 
 alphabet, and then tallied, or cut asunder in an in- 
 dented manner, the sheet or skin of parchment, one 
 of which parts being delivered to each of the parties 
 were proved authentic by matching with and an- 
 swering to one another. Deeds thus made were de- 
 nominated syngrapha by the canonists, because 
 that word, Instead of the letters of the alphabet or 
 the word chirographum, was used. 2 Bla. Com. 296. 
 This method of preventing counterfeiting, or of de- 
 tecting counterfeits, is now used, by having some 
 ornament or some word engraved or printed at one 
 end of certificates of stocks, checks, and a variety 
 of other instruments, which are bound up in a book, 
 and, after they are executed, are cut asunder 
 through such ornament or word. See Syngraph; 
 Indent. 
 
 The last part of a fine of land. 
 
 It is called, more commonly, the foot of the fine. 
 It Is an instrument of writing, beginning with these 
 words: "This is the final agreement," etc. It con- 
 cludes the whole matter, reciting the parties, day, 
 year, and place, and before whom the fine was ac- 
 knowledged and levied. Cruise, Dig. t. 35, c. 2, s. 52. 
 
 In Civil and Canon Law. An Instrument 
 
 written out and subscribed by the hands of 
 the king or prince. An instrument written 
 out by the parties and signed by them. 
 
 The Normans, destroying these chirographa, call- 
 ed the instruments substituted in their place charta 
 (charters), and declared that these charta should be 
 verified by the seal of the signer with the attesta- 
 tion of three or four witnesses. Du Cange ; Cowell. 
 
 CHIVALRY, COURT OF. See Court of 
 Chivalry. 
 
 CHIVALRY, TENURE BY. Tenure by 
 knight-service. Co. Litt. 
 
 CHOCTAW NATION. See Inoian Tribe. 
 
 CHOPS. The mouth of a harbor. Stats, 
 of Mass. 18S2, p. 12SS. 
 
 CHOSE (Fr. thing). Personal property. 
 Choses in possession. Personal things of 
 which one has possession. 
 
 Choses in action. See that title. 
 
 CHOSE IN ACTION. A right to receive 
 or recover a debt, or money, or damages for 
 breach of contract, or tor a tort connected 
 with contract, but which cannot be enforced 
 without action. Comyns, Dig. Bicns. 
 
 It is difficult to find out the exact mean- 
 ing of the expression; the meaning attribut- 
 ed to it has been explained from time to 
 time; 30 Ch. D. 2S2. 276, L'77 ; 11 App. Cas. 
 439, where Lord Blackburn said that the 
 phrase has been used "accurately or inac- 
 curately, as including all personal chattels 
 that are not in possession." It now includes 
 all personal chattels which are not in pus- 
 session; 11 App. Cas. 440. It includes an 
 annuity; 3 Mer. S6, unless charged on land: 
 14 Sim. 76; consols; 1 Ves. Jun. 198; 
 shares; 11 A. & E. 203; a ticket in a Derby 
 sweepstakes; 8 Q. B. 134; all debts and all 
 claims for damages for breach of contract: 
 Bushnell v. Kennedy, 9 Wall. (TJ. S.) 3S7, 
 19 L. Ed. 736; open accounts or unliquidated 
 accounts; Sere v. Pitot, 6 Cra. (U. S.) 332, 
 
 3 L. Ed. 240; v ., v. Wilkinson, 2 
 
 Curt. 682, Fed. Cas. No. 17,677; cona 
 for the delivery of chattels or money; Bush- 
 nell v. Kennedy, 9 Wall. (U. S.) 
 ill. 736; certificates of 6 B et v. 
 
 Hassell, 107 U. S. 602, 2 Sup. Ct 4. 
 L. Ed. 500; a check on a bank; L. K. 6 Eq. 
 198; a personal right not reduced Into 
 
 i but recoverable by a suit at law; 2 
 Kent 351 ; a mere right of action as to a 
 chattel, not in actual possession; Yerby v. 
 Lynch, 3 Gratt. (Va.) 494. 
 
 It is one of the qualities of a elmse in ac- 
 tion that at common law It is not assign- 
 able; 10 Co. 47; Gardner v. Adams. 1L! Wend. 
 (N. Y.) 297; 1 Cra. (U. S.) 307. In Brac- 
 ton's day it went to the heir, and he, not 
 the executor, sued for the debts due to a 
 dead man. This naturally led to difficulties, 
 and the courts gradually yielded to the pres- 
 sure of necessity and without a statute, so 
 momentous a change was made as that, 
 early in the time of Edward I., the chancery 
 had framed and the king's court had upheld 
 writs of debt for and against executors ; 2 
 Poll. & MaitL 344. It was Coke's idea that 
 the origin of the rule against assignment of 
 choses in action was the "wisdom and policy 
 of the founders of our law," in discouraging 
 maintenance and litigation, but Pollock 
 thinks that there is no doubt that it was 
 the logical consequence of the primitive view 
 of a contract as creating a strictly per 
 obligation between creditor and debtor. See 
 Wald, Poll. Torts 207, and note G. in App. 
 supporting this view. In equity, from an 
 early period, the courts have viewed the as- 
 signment of a chose in action for a valuable 
 consideration as a contract by the assignor 
 to permit the assignee to use his name for 
 the purpose of recovery, and, consequently, 
 enforce its specific performance, unless con- 
 trary to public policy; 1 P. Wms. Ch. 381; 
 Hoppiss v. Eskridge, 37 N. C. 54; Dobyns 
 v. McGovern, 15 Mo. 662. And now, at com- 
 mon law, the assignee is entitled to sue 
 and recover in the name of the assignor, 
 and the debtor will not be allowed, by way 
 of defence to such suit, to avail himself of 
 any payment to or release from the as- 
 signor, if made or obtained after notice of 
 the assignment; 4 Term 340; Bart- 
 Pearson, 29 Me. 9; Webb v. Steele. 13 N. ll. 
 230; Pitts v. Holmes, 10 Cush. (.Mas-. 
 Blin v. Pierce, 20 Yt. 25; Caldwell v. 
 Meshew, 44 Ark. 564. If, after notice of the 
 assignment, the debtor expressly promise 
 the assignee to pay him the debt, the as- 
 signee will then be entitled to sue in his 
 own name; Crocker v. Whitney, 10 .Mass. 
 316; Tiernan v. Jackson, 5 Pet (U. S.) 597, 
 8 L. Ed. 234; Clarke v. Thompson, 2 R. I. 
 146; Barger v. Collins, 7 Ilarr. & J. (Md.) 
 213; Ford v. Adams, 2 Barb. (N. Y.) 349; 
 Geer v. Archer, 2 Barb. (N. Y.) 420; Thomp- 
 son T. Emery, 27 N. H. 269; but without
 
 CHOSE IN ACTION 
 
 484 
 
 CHOSE IN ACTION 
 
 such express promise the assignee, except 
 under peculiar circumstances, must proceed, 
 even in equity in the name of the assignor ; 
 Ontario Bank v. Mumford, 2 Barb. Ch. (N. 
 Y.) 596; Carter v. Ins. Co., 1 Johns. Ch. (N. 
 Y.) 463; Adair v. Winchester, 7 Gill & J. 
 (Md.) 114; Lenox v. Roberts, 2 Wheat. (U. 
 S.) 373, 4 L. Ed. 264; or by agreement he 
 can sue in his own name and pay over the 
 proceeds of the sale to the assignor, in 
 which case he becomes a trustee; Dean v. 
 Chandler, 44 Mo. App. 338. 
 
 The English Judicature Act of 1873 pro- 
 vides to a certain extent for assignments of 
 choses in action; but not every equitable as- 
 signment is within the statute [1902] 2 K. B. 
 196. A partial assignment of choses in ac- 
 tion is good in equity, although the legal 
 title remains with the assignor ; Texas W. 
 R. Co. v. Gentry, 69 Tex. 625, 8 S. W. 98. 
 
 But courts of equity will not, any more 
 than courts of law, give effect to such as- 
 signments when they contravene any rule 
 of law or of public policy. . Thus, they will 
 not give effect to the assignment of the 
 half pay or full pay of an officer in the 
 army; 1 Ball & B. 389; or of a right of 
 entry or action for land held adversely ; 
 Hoppiss v. Eskridge, 37 N. C. 54; or of a 
 part of a right in controversy, in considera- 
 tion of money or services to enforce it; 
 Wilhite v. Roberts, 4 Dana (Ky.) 173. Nei- 
 ther do the courts, either of law or of eq- 
 uity, give effect to the assignment of mere 
 personal actions which die with the per- 
 son; Jabriskie v. Smith, 13 N. Y. 322, 64 
 Am. Dec. 551; Oliver v. Walsh, 6 Cal. 456; 
 Smith v. Sherman, 4 Cush. (Mass.) 408. A 
 cause of action for deceit is assignable; 
 Dean v. Chandler, 44 Mo. App. 338; but not 
 for slander; Miller v. Newell, 20 S. C. 123, 
 47 Am. Rep. 833. But a claim of damages 
 to property, though arising ex delicto, which 
 on the death of the party would survive 
 to his executors or administrators as assets, 
 may be assigned; Bisp. Eq. 166; McKee v. 
 Judd, 12 N. Y. 622, 64 Am. Dec. 51^; Web- 
 ber v. Quaw, 46 Wis. US, 49 N. W. 830. 
 The transfer of a bill of lading will pass 
 the claim for the conversion of the goods 
 represented by it; Dickson v. Elevator Co., 
 44 Mo. App. 498; Haas v. R. Co., 81 Ga. 
 792, 7 S. E. 629. See Smith v. Thompson, 
 94 Mich. 381, 54 N. W. 168. The right of 
 vendor to bring a second suit in trespass to 
 try title is assignable and passes to the 
 vendee ; Williams v. Bennett, 1 Tex. Civ. 
 App. 498, 20 S. W. 856. 
 
 The assignee of a chose in action, unless 
 it be a negotiable promissory note or bill 
 of exchange, without notice, in general takes 
 it subject to all the equities which subsist 
 against the assignor ; 1 P. Wms. 496 ; 4 
 Price 161; Brashear v. West, 7 Pet. (U. S.) 
 608, 8 L. Ed. 801 ; Cornish v. Bryan, 10 N. J. 
 Eq. 146; Bishop v. Holcomb, 10 Conn. 444; 
 Bush v. Lathrop, 22 N. Y. 535; Martin v. 
 
 Richardson, 68 N. C. 255; Boardman v. 
 Hayne, 29 la. 339; Lane v. Smith, 103 Pa. 
 415; Williams v. Neely, 134 Fed. 1, 67 C. 
 C. A. 171, 69 L. R. A. 232 ; Kleeman v. Fris- 
 bie, 63 111. 4S2. But it is not subject to the 
 equities of third persons of which he had 
 no notice ; Himrod v. Bolton, 44 111. App. 
 516. And a payment made by the debtor, 
 even after the assignment of the debt, if 
 before notice thereof, will be effectual ; 
 Woodbridge v. Perkins, 3 Day (Conn.) 364; 
 Bishop v. Holcomb, 10 Conn. 444 ; U. S. v. 
 Vaughan, 3 Binn. (Pa.) 394, 5 Am. Dec. 375; 
 Warren v. Copelin, 4 Mete. (Mass.) 594. 
 
 In Pennsylvania by statute a bond is as- 
 signable and suit can be brought on it by 
 the assignee if there are two witnesses to 
 the assignment and in Delaware under a 
 similar statute but one witness is now re- 
 quired. 
 
 To constitute an assignment, no writing or 
 particular form of words is necessary, if the 
 consideration be proved and the meaning of 
 the parties apparent; Dunn v. Snell, 15 
 Mass. 485; Dawson v. Coles, 16 Johns. (N. 
 Y.) 51; Kessel v. Albetis, 56 Barb. (N. Y.) 
 362; Shannon v. Mayor, etc., of City of 
 Hoboken, 37 N. J. Eq. 123; Garnsey v. Gard- 
 ner, 49 Me. 167; Patten v. Wilson, 34 Pa. 
 299; 13 Sim. Ch. 469; and therefore the 
 mere delivery of the written evidence of 
 debt; Cannaday v. Shepard, 55 N. C. 224; 
 Boeka v. Nuella, 28 Mo. 180; Jones v. Wit- 
 ter, 13 Mass. 304; Titcomb v. Thomas, 5 
 Greenl. (Me.) 2S2 ; Prescott v. Hull, 17 Johns. 
 (N. Y.) 284; the delivery being essential to 
 the assignment; Lewis v. Mason's Adm'r, 84 
 Va. 731, 10 S. E. 529; Shannon v. Mayor, 
 etc., of City of Hoboken, 37 N. J. Eq. 123; 
 Noyes v. Brown, 33 Vt. 431 ; or the giving of 
 a power of attorney to collect a debt, may 
 operate as an equitable transfer thereof, if 
 such be the intention of the parties ; 7 Ves. 
 Ch. 28; Bergen v. Bennett, 1 Caines Cas. (N. 
 Y.) 18, 2 Am. Dec. 281 ; People v. Tioga Com- 
 mon Pleas, 19 Wend. (N. Y.) 73. See As- 
 signment. 
 
 Bills of exchange and promissory notes, in 
 exception to the general rule, are by the 
 law merchant transferable, and the legal as 
 well as equitable right passes to the trans- 
 feree. See Bill of Exchange; Negotiable 
 Instruments. In some states, by statutory 
 provisions, bonds, mortgages, and other doc- 
 uments may be assigned, and the assignee 
 receives the whole title, both legal and eq- 
 uitable; 2 Bouvier, Inst, 192. In New York, 
 the code enables an assignee to maintain an 
 action in his own name in those cases in 
 which the right was assignable in law or 
 in equity before the code was adopted; Pur- 
 ple v. R. Co., 4 Duer (N. Y.) 74. 
 
 A distinction must be made between the 
 security or the evidence of the debt, and the 
 thing due. A deed, a bill of exchange or 
 a promissory note may be in the possession 
 of the owner, but the money or damages
 
 CHOSE IN ACTION 
 
 485 
 
 CHRISTIAN SCIENCE 
 
 due on them are no less choses in action. 
 This distinction is to be kept in view. The 
 chose in action is the money, damages or 
 thing owing. The bond or note is but the 
 evidence of it. There can in the nature of 
 things be no present possession of a thing 
 which lies merely in action; 1 Bouv. Inst. p. 
 191; First Nat. Bank v. Holland, 99 Va. 
 495, 39 S. B. 126, 55 L. It. A. 155, 86 Am. 
 St. Rep. 898. 
 
 In the absence of fraudulent transfer or 
 such other fraud as would positively impede 
 an action at law and proceeding in garnish- 
 ment, equity will not subject the choses in 
 action of the debtor to the payment of his 
 debts; Hall v. Imp. Co., 143 Ala. 464, 39 
 South. 2S5, 2 L. R, A. (N. S.) 130, 5 Ann. 
 Cas. 363. 
 
 See Assignment ; Situs ; Gift ; 20 L. J. 
 R. 113. 
 
 CHOSEN FREEHOLDERS. See Board of 
 Freeholders. 
 
 CHRISTIAN. One who believes in or as- 
 sents to the truth of the doctrines of Chris- 
 tianity, as taught by Jesus Christ in the 
 New Testament. It does not include Mo- 
 hammedans, Jews, Pagans, or infidels; Hale 
 v. Everett, 53 N. H. 9, 16 Am. Rep. 82. 
 
 CHRISTIAN NAME. The baptismal name 
 as distinct from the surname. A Christian 
 name may consist of a single letter. Whar- 
 ton. See Name. 
 
 CHRISTIAN SCIENCE. In Pennsylvania 
 a charter was refused to an organization 
 of .Christian Scientists on the ground that 
 to recognize their doctrines was against the 
 public policy of the state ; In re First Church 
 of Christ, Scientist, 205 Pa. 543, 55 Atl. 530, 
 63 L. R. A. 411, 97 Am. St Rep. 753 ; but in 
 Illinois they have been incorporated; Peo- 
 ple v. Gordon,. 194 111. 560, 02 N. E. 858, 88 
 Am. St. Rep. 165. 
 
 The consent of a patient to be treated by 
 a Christian Scientist healer will preclude 
 holding him liable in damages for failure to 
 effect a cure, although that method of treat- 
 ment is illegal by state law; Spead v. Tora- 
 linson, 73 N. H. 46, 59 Atl. 376, 68 L. R. A. 
 432. In Maine, a Christian Scientist was 
 held entitled to recover for his services. The 
 defense set up that it was delusion ami 
 charlatanry being considered immaterial, as 
 defendant had chosen the treatment and 
 promised to pay for it; Wheeler v. Sawyer 
 (Me.) 15 Atl. 67. 
 
 While the practice of Christian Science is 
 not a practice of medicine as usually and 
 generally understood, yet being a treatment 
 for mental and bodily ailments, such prac- 
 tice is a violation of the state laws for the 
 protection of the public health ; State v. 
 Buswell, 40 Neb. 158, 58 N. W. 728, 24 L. 
 R. A. 6S; contra, State v. Mylod, 20 R. I. 
 632, 40 Atl. 753, 41 L. R. A. 42S. It has been 
 held that to give treatments for a fee is 
 
 practicing medicine; State v. Marble, 72 
 Ohio St. 21, 73 N. E. 1063 70 I. R. A. 835. 
 100 Am. St. Rep. 570, 2 Ann. Cas. SOS, where 
 an act regulating such practice is consid- 
 ered a valid exercise of the police power 
 and not void as discriminating against 
 Christian Science in not. maki I pro- 
 
 vision for those who wish to practice it. 
 
 Under a municipal ordinance Imposing a 
 penalty on physicians for not report in - 
 tagious diseases, the evidence must show 
 that a Christian Scientist who att. 
 person knew that he was afflicted with such 
 disease ; Kansas City v. Baird, 92 Mo. App. 
 204. 
 
 A belief in Christian Science, ascribing to 
 it certain miraculous powers of curing dis- 
 ease, is not sufficient evidence of insane de- 
 lusions to avoid a will ; In re Brush, 35 
 Misc. 6S9, 72 N. Y. Supp. 421. 
 
 A conviction of a father for wilfully omit- 
 ting, without lawful excuse, to furnish med- 
 ical attendance for his minor son, was up- 
 held; Owens v. State, 6 Okl. Cr. 110. 116 
 Pac. 345. 3G L. R. A. (N. S.) C33, Ann 
 1913B, 1218. 
 
 See an article in 10 Va. L. Reg. 285. 
 
 CHRISTIANITY. The religion established 
 by Jesus Christ. 
 
 Christianity has been judicially declared 
 to be a part of the common law of Penn- 
 sylvania; Updegraph v. Com., 11 S. & R. 
 (Pa.) 394; Guardians of the Poor v. <; 
 5 Binn. (Pa.) 555; (cited in U. S. v. Laws. 
 163 U. S. 263, 16 Sup. Ct. 99S, 41 L. Ed. 
 151); see Zeisweiss v. James, 63 Pa. 4ti">. :: 
 Am. Rep. 558; of New York, People v. Bug- 
 gies, 8 Johns. 291, 5 Am. Dec. 335; of Con- 
 necticut, 2 Swift, System 321; of Delaware, 
 State v. Chandler, 2 Harr. 553; of Massa- 
 chusetts, 7 Dane, Abr. c. 219, a. 2. 19. See 
 Com. v. Kneeland, 20 Pick. (Mass.^ 206. To 
 write or speak contemptuously and mali- 
 ciously against it is an indictable offence; 
 Odg. Lib. & SI. 450; Cooper, Libel 59. 114. 
 See 5 Jur. 529; People v. Ruggles. 8 Johns. 
 (N. Y.) 290, 5 Am. Dec. 335; Com. v. Knee- 
 land, 20 Pick. (Mass.) 206. "This Is a re- 
 ligious people, not Christianity with an es- 
 tablished church and tithes and spiritual 
 courts; but Christianity with liberty of con- 
 science to all men." U. S. v. Laws, 163 U. 
 S. 203, 16 Sup. Ct. 998, 41 L. Ed. 151. 
 
 Archbishop Whately, in his preface to the Ele- 
 ments of Rhetoric, says, "It has been declared, by 
 the highest legal authorities, that 'Christianity is 
 part of the law of the land,' and, consequently, any 
 one who impugns it is liable to prosecution. What 
 is the precise meaning of the above legal maxim I 
 do not profess to determine, having never met with 
 any one who could explain it to me; but evidently 
 the mere circumstance that we have religion by 
 law established does not of itself imply the Illegality 
 of argui I that religion." It seems difficult, 
 
 says an accomplished writer (Townsend, St. Tr. vol. 
 ii. p. 3S9), to render more intelligible a maxim 
 which has perplexed so learned a critic. Ch: 
 ity was pronounced to be part of the common law, 
 in contradistinction to the ecclesiastical law, for 
 the purpose of proving that the temporal courts, as
 
 CHRISTIANITY 
 
 486 
 
 CHURCH 
 
 well as the courts spiritual, had jurisdiction over of- 
 fences against it. Blasphemies against God and reli- 
 gion are properly cognizable by the law of the land, 
 as they disturb the foundations on which the peace 
 and good order of society rest, root up the principle 
 of positive laws and penal restraints, and remove 
 the chief sanction for truth, without which no ques- 
 tion of property could be decided and no criminal 
 brought to justice. Christianity is part of the com- 
 mon law, as its root and branch, its majesty and 
 pillar — as much a component part of that law as the 
 government and maintenance of social order. The 
 inference of the learned archbishop seems scarcely 
 accurate, that all who impugn this part of the law 
 must be prosecuted. It does not follow, because 
 Christianity is part of the law of England, that 
 every one who impugns it is liable to prosecution. 
 The manner of and motives for the assault are the 
 true tests and criteria. Scoffing, flippant, railing 
 comments/ not serious arguments, are considered 
 offences at common law, and justly punished, be- 
 cause they shock the pious no less than deprave the 
 ignorant and young. The meaning of Chief Justice 
 Hale cannot be expressed more plainly than in his 
 own words. An information was exhibited against 
 one Taylor, for uttering blasphemous expressions 
 too horrible to repeat. Hale, C. J., observed that 
 "such kind of wicked, blasphemous words were not 
 only an offence to God and religion, but a crime 
 against the laws, state, and government, and there- 
 fore punishable in the court of King's Bench. For, 
 to say religion is a cheat, is to subvert all those 
 obligations whereby civil society is preserved ; that 
 Christianity is part of the laws of England, and to 
 reproach the Christian religion is to speak in sub- 
 version of the law." Ventr. 293. To remove all 
 possibility of further doubt, the English commis- 
 sioners on criminal law, in their sixth report, p. 83 
 (1S41-), have thus clearly explained their sense of the 
 celebrated passage: "The meaning of the expres- 
 sion used by Lord Hale, that 'Christianity was par- 
 cel of the laws of England,' though often cited in 
 subsequent cases, has, we think, been much misun- 
 derstood. It appears to us that the expression can 
 only mean either that, as a great part of the secu- 
 rities of our legal system consist of judicial and 
 official oaths sworn upon the Gospels, Christianity 
 is closely interwoven with our municipal law, or 
 that the laws of England, like all municipal laws of 
 a Christian country, must, upon principles of gen- 
 eral jurisprudence, be subservient to the positive 
 rules of Christianity. In this sense, Christianity 
 may justly be said to be incorporated with the law 
 of England, so as to form parcel of it ; and it was 
 probably in this sense that Lord Hale intended the 
 expression should be understood. At all events, in 
 whatever sense the expression is to be understood, 
 it does not appear to us to supply any reason in 
 favor of the rule that arguments may not be used 
 against it ; for it is not criminal to speak or write 
 either against the common law of England, gen- 
 erally, or against particular portions of it, provided 
 it be not done in such a manner as to endanger the 
 public peace by exciting forcible resistance ; so 
 that the statement that Christianity is parcel of 
 the law of England, which has been so often urged 
 in justification of laws against blasphemy, however 
 true it may be as- a general proposition, certainly 
 furnishes no additional argument for the propriety 
 of such laws." If blasphemy mean a railing accu- 
 sation, then it is, and ought to be, forbidden ; 
 Heard, Lib. & SI. § 338. See Vidal v. Girard, 2 
 How. (U. S.) 127, 197, 11 L. Ed. 205; Updegraph v. 
 Com., 11 S. & R. (Pa.) 394; People v. Ruggles, 8 
 Johns. (N. Y.) 190, 5 Am. Dec. 335 ; Shover v. State, 
 10 Ark. 259 ; State v. Chandler, 2 Harr. (Del.) 553, 
 569; 21 Am. L. Reg. 201, 333, 537. See Cooley, Const. 
 Lim. 
 
 Christianity is a part of the common law ; the 
 existence of God has always been assumed in Eng- 
 lish Law. See J. B. Thayer, Leg. Essays 325. 
 
 CHURCH. A society of persons who pro- 
 fess the Christian religion. Den v. Bolton, 
 12 N. J. L. 206. 214; Stebbins v. Jennings, 
 
 10 Pick. (Mass.) 193 ; German Reformed 
 Church v. Com., 3 Pa. 282; St. Johns 
 Church v. Hanns, 31 Pa. 9. 
 
 The place where such persons regularly 
 assemble for worship. Blair v. Odin, 3 Tex. 
 288. 
 
 The term church includes the chancel, aisles, and 
 body of the church. Hamm. N. P. 204 ; Blair v. 
 Odin, 3 Tex. 2S8. By the English law, the terms 
 church or chapel, and church-yard, are expressly 
 recognized as in themselves correct and technical 
 descriptions of the building and place, even in 
 criminal proceedings; 8 B. & C. 25; 1 Salk. 256; 11 
 Co. 25 b; 2 Esp. 5, 28. 
 
 Burglary may be committed in a church, 
 at common law; 3 Cox, Cr. Cas. 581. 
 
 The church of England is not a corpora- 
 tion aggregate; but the church in any par- 
 ticular place is so considered, for the pur- 
 poses at least of receiving a gift of lands ; 
 Town of Pawlet v. Clark, 9 Cra. (U. S.) 292, 
 3 L. Ed. 735; Lockwood v. Weed, 2 Conn. 
 287 ; Stone v. Griffin, 3 Vt. 400 ; Wilson v. 
 Presbyterian Church, 2 'Rich. Eq. (S. C.) 192. 
 See Rice v. Osgood, 9 Mass. 44 ;, Sawyer v. 
 Baldwin, 11 Pick. (Mass.) 495; Proprietors 
 of Town of Shapleigh v. Pilsbury, 1 Greenl. 
 (Me.) 2S8 ; Blair v. Odin, 3 Tex. 288 ; Afri- 
 can Methodist Bethel Church v. Carmack, 
 2 Md. Ch. Dec. 143. 
 
 As to the right of succession to glebe 
 lands, see Terrett v. Taylor, 9 Cra. (U. S.) 
 43, 3 L. Ed. 650; Town of Pawlett v. Clark, 
 9 Cra. (U. S.) 292, 3 L. Ed. 735; Mason v. 
 Muncaster, 9 Wheat. (U. S.) 468, 6 L. Ed. 
 131 ; or other church property, see Wheaton 
 v. Gates, 18 N. Y. 395. As to the power of 
 a church to make by-laws, etc., under local 
 statutes, see Com. v. Cain, 5 S. & R. (Pa.) 
 510 ; German Reformed Church v. Com., 3 
 Pa. 2S2; Vestry of St. Luke's Church v. 
 Mathews, 4 Des. (S. C.) 578, 6 Am. Dec. 619 ; 
 Perrin v. Granger, 30 Vt. 595; Farnsworth 
 v. Storrs, 5 Cush. (Mass.) 412. Acquiescence 
 in and use of a constitution for over 50 years 
 makes it valid and binding on the society; 
 Schlichter v. Keiter, 156 Pa. 119, 27 Atl. 45, 
 22 L. R. A. 161 ; Bear v. Heasley, 98 Mich. 
 279, 57 N. W. 270, 24 L. R. A. 615. 
 
 See Religious Society. 
 
 A municipal corporation may stipulate, un- 
 der its charter authority to contract for a 
 water supply, that churches be furnished 
 with water free of charge ; Independent 
 School Dist. of Le Mars v. Water & Light Co., 
 131 la. 14, 107 N. W. 944, 10 L. R. A. (N. S.) 
 859. In a statute limiting the height of 
 buildings the exception of churches does not 
 deprive owners of private property of the 
 equal protection of the laws; Cochran v. 
 Preston, 108 Md. 220, 70 Atl. 113, 23 L. R. 
 A. (N. S.) 1163, 129 Am. St. Rep. 432, 15 Ann. 
 Cas. 1048. 
 
 CHURCH OF ENGLAND. The act of 26 
 Henry VIII. recognized the king as being 
 the only supreme head on earth of the 
 Church of England, having the power to
 
 CHURCH OF ENGLAND 
 
 487 
 
 CHURCH OF ENGLAND 
 
 correct all errors, heresies, abuses, offences, 
 contempts and enormities. 
 
 In 1531, Henry was acknowledged by Con- 
 vocation as "Protector and Supreme Head 
 of the English Church and Clergy," "so far 
 as the law of Christ allowed." 
 
 The Church of England is governed in- 
 ternally by means of its Convocation of bish- 
 ops and clergy; there is one for each prov- 
 ince, Canterbury and York. Each consists 
 of two houses; the upper, composed of 
 archbishops and bishops; the lower, com- 
 posed of deans of every cathedral, the arch- 
 deacons with proctors elected from every 
 chapter and two or more elected by the 
 clergy of the diocese of the province of Cant- 
 erbury, and by every archdeacon in the 
 province of York. 
 
 The name Convocation is specifically giv- 
 en to the assembly of the spirituality of the 
 realm of England. It is summoned by the 
 metropolitan archbishops of Canterbury and 
 of York, respectively, within their ecclesias- 
 tical provinces, pursuant to a royal writ, 
 whenever the Parliament of the realm is 
 summoned, and is continued or discharged, 
 as the case may be, whenever the Parlia- 
 ment is prorogued or dissolved. 
 
 The present constitution of the Convoca- 
 tion of the Prelates and Clergy of the prov- 
 ince of Canterbury was recognized as early 
 as 1283 as its normal constitution, and in 
 extorting recognition from the crown, which 
 the clergy accomplished by refusing to 
 attend unless summoned in lawful man- 
 ner (deb-ito modo) through their metropol- 
 itan, the clergy of the province of Canter- 
 bury taught the laity the possibility of main- 
 taining the freedom of the nation against 
 the encroachments of the royal power. 
 
 The form of the royal writ, which it is 
 customary to issue in the present day to 
 the metropolitan of each province, is identi- 
 cal in its purport with the writ issued by 
 the crown in 1283 to the metropolitan of the 
 province of Canterbury. The existing con- 
 stitution of the Convocation of the province 
 of Canterbury — and the same is true of the 
 province of York — in respect of its compris- 
 ing representatives of the chapters and of 
 the beneficed clergy, in addition to the bish- 
 ops and other dignitaries of the church, 
 would thus appear to be of even more an- 
 cient date than the existing constitution of 
 the Parliament of the realm. 
 
 It was decreed during the time of Henry 
 VI. that the prelates and other clergy, with 
 their servants and attendants, when called 
 to the Convocation pursuant to the king's 
 writ, should enjoy the same liberties and de- 
 fence as when summoned to the king's Par- 
 liament. 
 
 In 1717, in pursuance of a royal writ Con- 
 vocation was prorogued and no license from 
 the crown was granted to Convocation to 
 proceed to business until 1861. 
 
 In 1872 Convocation was empowered by 
 
 the crown to frame resolutions on the sub- 
 ject of public worship, which resolutions 
 were afterwards incorporated in the Act of 
 Uniformity Amendment Act 
 
 To Convocation in later years has been 
 added the House of Laymen, for both prov- 
 inces, which, to a certain extent, secured 
 the co-operation of the lay element, it is 
 elected for every new Parliament, by Dio- 
 cesan Conferences, who are in turn elected 
 by the laity. In 1S9G, joint sessions of both 
 Convocations, in conjunction with the li 
 of Laymen, for consultative purposes, were 
 held. This body is now termed the Repre- 
 sentative Church Council and lias adopted a 
 constitution ; all formal business is how- 
 ever, transacted in the separate Convoca- 
 tions. 
 
 The crown has the right to nominate to 
 vacant sees. In cases of sees of old founda- 
 tion, this is done by means of a conge d'elire ; 
 in that of all others, by letters patent. The 
 usual selection of bishops is in the hands 
 of the Prime Minister, but it is usual now 
 to select those approved by public opinion. 
 
 Bishops hold their temporalities as bar- 
 ons, and are spiritual members of Parlia- 
 ment. Only twenty-six have the right to 
 seats in the House of Lords, of which five, 
 the two archbishops and the bishops of 
 London, Durham and Winchester, always sit, 
 the others taking their seats in order of 
 seniority of confirmation. See Encycl. Brit 
 
 The Judicial Committee of the Privy 
 Council is the highest court of appeal in 
 ecclesiastical cases. 
 
 The Church of Ireland was by the Act of 
 Union, 1800. united with the Church of 
 land. By the disestablishment act of 1869, 
 this union was severed, and on January 1, 
 1871, the Church of Ireland became inde- 
 pendent. The supreme governing board of 
 the Church of Ireland is the church Synod, 
 which meets annually. There are also twen- 
 ty-three dioceses and Synods which are con- 
 stituted by similar elective bodies called di- 
 ocesan councils. The bishop of the diocese is 
 chosen by the clerical and lay members of the 
 diocesan Synod. The Primate is chosen by 
 the House of Bishops from among their own 
 number. 
 
 CHURCH RATE. A tribute by which the 
 expenses of the church are to be defrayed. 
 They are to be laid by the parishioners, in 
 England, and may be recovered before two 
 Justices, or in the ecclesiastical court. Whar- 
 ton, Diet 
 
 CHURCH-WARDEN. An officer whose 
 duty it is to take care of or guard the 
 church. 
 
 They are taken to be a kind of corporation in 
 favor of the church for some purposes: they may 
 have, in that name, property in goods and chattels, 
 and bring actions for them for the use and benefit 
 of the church, but may not waste the church prop- 
 erty, and are liable to be called to account; 3 Steph. 
 Com. 90; 1 Bla. Com. 394; CowelL
 
 CHURCH-WARDEN 
 
 488 
 
 CIRCUIT COURTS 
 
 These officers are created in some ecclesi- 
 astical corporations by the charter, and their 
 rights and duties are definitely explained. 
 In England, it is said, their principal duties 
 are to take care of the church or building, 
 the utensils and furniture, the church-yard, 
 certain matters of good order concerning the 
 church and church-yard, the endowments of 
 the church; Bacon, Abr. By the common 
 law, the capacity of church-wardens to hold 
 property for the church is limited to personal 
 property; Terrett v. Taylor, 9 Cra. (U. S.) 43, 
 3 L. Ed. 650. 
 
 CHURL. See Ceorl. 
 CIGARETTES. See Commerce. 
 CINQUE PORTS. The five ports of Eng- 
 land which lie towards France. 
 
 These ports, on amount of their importance as 
 defences to the kingdom, early had certain privi- 
 leges granted them, and in recompense were bound 
 to furnish a certain number of ships and men to 
 serve on the king's summons once in each year. 
 "The service that the barons of the Cinque Ports 
 acknowledge to owe ; upon the king's summons, if 
 it shall happen, to attend with their ships fifteen 
 days at their own cost and charges, and so long 
 as the king pleases, at his own charge ;" Cowell, 
 Quinque Portus. The Cinque Ports, under the ordi- 
 nance of Henry III. in 1229, were Hastings, Dover 
 Sandwich, Hythe and Romney, to which were added 
 Winchelsea and Rye; 1 Social England 412. The 
 two latter are sometimes reckoned ports of Sand- 
 wich ; and the other of the Cinque Ports have ports 
 appended to them in like manner. The Cinque Ports 
 had a Lord Warden, who had a peculiar jurisdic- 
 tion, sending out writs in his own name. This office 
 is still maintained. 
 
 The first admiralty jurisdiction in somewhat mod- 
 ern form appears to have been committed to the 
 Lord Warden and Bailiffs of the Cinque Ports. The 
 constitution of these ports into a confederacy for the 
 supply and maintenance of the navy was due to 
 Edward the Confessor. Edward I. confirmed their 
 charter. The last charter was in 1C68. Their courts 
 had civil, criminal, equity, and admiralty jurisdic- 
 tion and were not subject to the courts at West- 
 minster. See the charters in Jeakes' Charters of 
 the Cinque Ports. See Inderwick's King's Peace; 
 Les Cinque Ports, by Benoist-Lucy ; Court of the 
 Cinque Ports. 
 
 The representatives in parliament and the inhab- 
 itants of the Cinque Ports were termed barons ; 
 Brande ; Cowell ; Termes de la Ley. And see 
 Round, Feudal England 563. 
 
 CIRCUIT COURTS. Courts whose juris- 
 diction extends over several counties or dis- 
 tricts, and of which terms are held in the 
 various counties or districts to which their 
 jurisdiction extends. 
 
 The term was applied distinctively to a class of 
 the federal courts of the United States, of which 
 terms are held in two or more places successively 
 in the various circuits into which the whole country 
 is divided for this purpose. The name was changed 
 to district court by the Judiciary Act of March 3, 
 1911, in effect January 1, 1912. See United States 
 Courts. In some states it applies to courts of 
 general jurisdiction of which terms are held in the 
 various counties or districts of the state. Such 
 courts sit in some instances as courts of nisi prius, 
 in others, either at nisi prius or in banc. They 
 may have an equity as well as a common-law 
 jurisdiction, and may be both civil and criminal 
 courts. The systems of the various states are widely 
 different in these respects ; and reference must be 
 had to the articles on the different states for an ex- 
 planation of the system adopted in each. The term 
 is unknown in the classification of English courts, 
 and conveys a different idea in the various states in 
 which it is adopted as the designation of a court or 
 class of courts, although the constitution of such 
 courts, in many instances, is quite analogous to that 
 of the English courts of assize and nisi prius. 
 
 CIPHER. See Telegraph. 
 
 CIRCUIT. A division of the country in 
 England appointed for a particular judge to 
 visit for the trial of causes. See 3 Bla. 
 Com. 58. 
 
 Courts are held in each of these circuits, at stated 
 periods, by judges assigned for that purpose; 3 
 Steph. Com. 321. The United States is divided into 
 nine circuits ; 1 Kent 301. 
 
 The term is often applied, perhaps, to the periodi- 
 cal journeys of the judges through their various 
 circuits. The judges, or, in England, commissioners 
 of assize nisi prius, are said to make their circuit; 
 3 Bla. Com. 57. The custom is of ancient origin. 
 In A. D. 1170, justices in eyre were appointed, with 
 delegated powers from the Curia Regis, being held 
 members of that court, and directed to make the 
 circuit of the kingdom once in seven years. See 
 Inderwick's King's Peace GO. 
 
 Under Courts of Assize and Nisi Prius 
 will be found a list of English circuits. 
 
 CIRCUIT COURT OF APPEALS. See 
 
 United States Courts. 
 
 CIRCUIT JUSTICE. A justice of the Su- 
 preme Court of the United States allotted to 
 any circuit. Act of March 3, 1911. 
 
 CIRCUITY OF ACTION. Indirectly ob- 
 taining, by means of a subsequent action, a 
 result which may be reached in an action 
 already pending. 
 
 This is particularly obnoxious to the law, 
 as tending to multiply suits ; Fellows v. Fel- 
 lows, 4 Cow. (N. Y.) 682, 15 Am. Dec. 412. 
 
 CIRCUMSPECTE AGATIS. A royal writ 
 (12S5) dealing with lay and ecclesiastical ju- 
 risdiction which perhaps technically acquir- 
 ed the force of a statute. Its authenticity 
 was doubtful. 2 Holdsw. Hist. E. L. 246. 
 See Articuli Cleri. 
 
 C I R C U M ST A N C ES. The particulars which 
 accompany an act. The surroundings at the 
 commission of an act. 
 
 The facts proved are either possible or impossible, 
 ordinary and probable or extraordinary and im- 
 probable, recent or ancient; they may have hap- 
 pened near us, or afar off; they are public or pri- 
 vate, permanent or transitory, clear and simple or 
 complicated ; they are always accompanied by cir- 
 cumstances which more or less influence the mind 
 in forming a judgment. And in some instances 
 these circumstances assume the character of irre- 
 sistible evidence: where, for example, a woman 
 was found dead in a room, with every mark of 
 having met with a violent death, the presence of 
 another person at the scene of action was made 
 manifest by the bloody mark of a left hand visible 
 on her left arm ; 14 How. St. Tr. 1324 ; Greenl. Ev. 
 13 a. These points ought to be carefully examined, 
 in order to form a correct opinion. The first ques- 
 tion ought to be, is the fact possible? If so, are 
 there any circumstances which render it impossible? 
 If the facts are impossible, the witness ought not to 
 be credited. If, for example, a man should swear 
 that he saw the deceased shoot himself with his own 
 pistol, and, upon an examination of the ball which 
 killed him, it should be found too -large to enter 
 into the pistol, the witness ought not to be credited;
 
 CIRCUMSTANCES 
 
 489 
 
 CITATION OF AUTHORITIES 
 
 1 Stark. Ev. 505 ; or if one should swear that an- 
 other had been guilty of an impossible crime. 
 
 CIRCUMSTANTIAL EVIDENCE. See Ev- 
 idence. 
 
 CIRCUMSTANTIBUS. See Tales. 
 
 CITACION. In Spanish Law. The order 
 of a legal tribunal directing an individual 
 against whom a suit has been instituted to 
 appear and defend it within a given time. 
 It is synonymous with the term emplaza- 
 miento in the old Spanish law, and the in jus 
 vocatio of the Roman law. 
 
 CITATIO AD REASSUMENDAM CAUSAM. 
 In Civil Law. The name of a citation, which 
 issued when a party died pending a suit, 
 against the heir of the defendant, or, when 
 the plaintiff died, for the heir of the plain- 
 tiff. Our bill of revivor is probably borrow- 
 ed from this proceeding. 
 
 CITATION. A writ issued out of a court 
 of competent Jurisdiction, commanding a per- 
 son therein named to appear on a day named 
 and do something therein mentioned, or 
 show cause why he should not. Proctor, 
 Pract 
 
 The act by which a person is so summoned 
 or cited. 
 
 In the ecclesiastical law, the citation is the be- 
 ginning and foundation of the whole cause, and is 
 said to have six requisites, namely: the insertion of 
 the name of the judge, of the promovert, of the im- 
 pugnant, of the cause of suit, of the place, and of 
 the time of appearance ; to which may be added 
 the affixing the seal of the court, and the name of 
 the register or his deputy. 1 Brown, Civ. Law 453, 
 454; Ayliffe, Parerg. xliii. 175; Hall, Adm. Pr. 5; 
 Merlin, Rep. 
 
 The process issued in courts of probate 
 and admiralty courts. It is usually the orig- 
 inal process in any proceeding where used, 
 and is in that respect analogous to the writ 
 of capias or summons at law, and the sub- 
 poena in chancery. 
 
 CITATION OF AUTHORITIES. The pro- 
 duction of or reference to the text of acts 
 of legislatures, treatises, or cases of similar 
 nature decided by tne courts, in order to 
 support propositions advanced. 
 
 As the knowledge of the law is to a great 
 degree a knowledge of precedents, it follows 
 that there must be necessarily a frequent ref- 
 erence to these preceding decisions to obtain 
 support for propositions advanced as being 
 statements of what the law is. Constant ref- 
 erence to the law as it Is enacted is, of 
 course, necessary. References to the works 
 of legal writers are also desirable for elucida- 
 tion and explanation of doubtful points of 
 law. 
 
 The civilians on the continent of Europe, 
 in referring to the Institutes, Code, and 
 Pandects or Digest, usually give the number, 
 not of the book, but of the law, and the first 
 word of the title to which it belongs ; and, 
 as there are more than a thousand of these, 
 it is no easy task for one not thoroughly ac- 
 
 quainted with those collections to find the 
 place to which reference is made. The Amer- 
 ican writers generally follow the natural 
 mode of reference, by patting down the name 
 of the collection, and then the number of the 
 book, title, law, and section. For example, 
 Inst. 4. 15. 2. signifies Institutes, boob 4. ti- 
 tle 15, and section 2; Dig. 41. 9. 1. 3. means 
 Digest, book 41, title 9, law 1, section 3; 
 pro dote, or ff pro dote, signifies section 3, 
 law 1, of the book and title of the Digest or 
 Pandects entitled pro dote. It is proper to 
 remark that Dig. and ff are equivalent: the 
 former signifies Digest, and the latter — 
 which is a careless mode of writing the 
 Greek letter ir, the first letter of the word 
 iravdiia-ai — signifies Pandects; and the Digest 
 and Pandects are different names for one 
 and the same thing. The Code is cited in 
 the same way. The Novels are cited by their 
 number, with that of the chapter and para- 
 graph: for example, Nov. 185. 2. 4. for No- 
 vella Justiniani 185, capite 2, poragrapho 4. 
 Novels are also quoted by the collation, the 
 title, chapter, and paragraph, as follows: 
 In Authcntico, Collatione 1, titulo 1, eap. 2S1. 
 The Authentics are quoted by their first 
 words, after which is set down the title of 
 the Code under which they are placed: for 
 example, Authentica, cum testator. < 
 ad legem fascidiam. See Mackeldey, Civ. 
 Law § 65 ; Domat, Civ. Law, Cush. ed. Ap- 
 pendix ; Decretales Gregorii Noni. 
 
 Statutes of the states are here cited by giv- 
 ing the number of the volume (where there are 
 more volumes than one), the name of the state 
 (using the common geographical abbreviation), the 
 designation of the code, and the page where the 
 statute or provision in consideration is found: thus, 
 1 N. Y. Rev. Stat. 4th ed. 63. To this it is desirable 
 to add, when regard for space allows, the chapter 
 and section of the statute referred to. 
 
 United States statutes, and statutes of the states 
 not included in the codified collection of the state, 
 are cited as statutes of the year in which they were 
 enacted, or by the proper section of the Revised 
 Statutes. 
 
 English statutes are referred to by indicating the 
 year of the reign In which they were enacted, the 
 chapter and section: thus, 17 &. 18 Vict, c 96, § 2, 
 or the date or year of the act. Recent English 
 authors are coming to give the date or the year in 
 the text and perhaps the regnal year in a foot note. 
 
 Text-books are referred to by giving the number 
 of the volume (if more than one), and the name of 
 the author, with an abbreviation of the title of the 
 work sufficiently extended to distinguish it from 
 other works by the same author, and to indicate the 
 class of subjects of which it treats: thus, 2 Story, 
 Const. 
 
 Where an edition is referred to which has been 
 prepared by other persons than the authors, or 
 where an edition subsequent to the first is referred 
 to, this fact is sometimes indicated, and the page, 
 section, or paragraph of the edition cited is given: 
 thus, Angell & A. Corp., Lothrop ed. 96; Smith, 
 Lead. Cas., 5th Hare & W. ed. 173. The various edi- 
 tions of Blackstone's Commentaries, however, have 
 the editor's name preceding the title of the book: 
 thus Sharswood, Bla. Com.; Coleridge, Bla. Com.; 
 wherever the reference Is to a note by the editor cit- 
 ed ; otherwise the reference is merely to Blackstone. 
 
 The earlier reports of the Federal courts of the 
 United States, and of the English, Irish, and Scotch 
 courts, are cited by the names of the reporters: 
 thus, 3 Cra. 96; 5 East 241. In a few instances.
 
 CITATION OF AUTHORITIES 
 
 41)0 
 
 CITIZEN 
 
 common usage has given a distinctive name to a 
 series ; and wherever this is the case such name 
 has been adopted; as. Term; C. B. ; Exch. 
 
 The reports of the state courts are cited by the 
 name of the state, wherever a series of such reports 
 has been recognized as existing: thus, 5 111. 63; 21 
 Pa. 96 ; and the same rule applies to citations of 
 the reports of provincial courts: thus, 6 Low. C. 167. 
 The later volumes of reports of the supreme court 
 of the United States are cited by their serial num- 
 ber: thus, 161 U. S. 
 
 Otherwise, the reporter's name Is used; thus, 5 
 Rawle 23, or an abbreviation of it ; as 11 Pick. 23. 
 This rule extends also to the provincial reports; 
 and the principle is applied to the decisions of 
 Scotch and Irish cases, except in later cases, when 
 the official method is adopted. 
 
 Where the same reporter reports decisions in 
 courts both of law and equity, an additional abbre- 
 viation, usually to equity reports and sometimes to 
 law reports, indicates which series is meant: thus; 
 3 I red. Eq. 87; 14 N. J. L. 42. 
 
 As to the usual mode of citing English, Scotch 
 and Irish Reports, see Tables etc. of All Reports 
 of Cases etc. by the Council of Law Reporting (1895); 
 Reports. 
 
 For a list of abbreviations as used in this book, 
 and as commonly used in legal books, see Abbre- 
 viations. 
 
 CITE. To summon; to command the pres- 
 ence of a person ; to notify a person of legal 
 proceedings against him and require his ap- 
 pearance thereto. See Citation. 
 
 CITIZEN. In English Law. An inhabit- 
 ant of a city. 1 Rolle, Abr. 138; 18 L. Q. 
 Rev. 49. The representative of a city, in 
 parliament. 1 Bla. Com. 174. 
 
 At common law a natural-born subject in- 
 cluded every child born in England of alien 
 parents except the child of an ambassador or 
 diplomatic agent or of an alien enemy in 
 hostile occupation of the place where the 
 child was born ; U. S. v. Wong Kim Ark, 169 
 U. S. 649, 18 Sup. Ct. 456, 42 L. Ed. 890. It 
 made no difference whether the parents were 
 permanently or only temporarily residing in 
 England ; Cockb. Nat. 7. 
 
 In Roman Law. Under Roman law there 
 were four methods of acquiring citizenship: 
 1. Every man was a citizen whose father was 
 such before him. 2. A slave when he became 
 a free man followed the condition of his 
 former master. 3. Certain privileged classes 
 by statutes could by their own acts become 
 citizens, as by service for three years in the v 
 Roman armies, or the erection of a house in 
 Rome worth at least 100,000 sesterces, or 
 building a ship and for six years carrying 
 corn to Rome. 4. By legislation such aliens 
 as were thought fit were received into citi- 
 zenship. This would now be termed nat- 
 uralization. 
 
 Citizenship might be lost by reduction into 
 slavery, capture in war, banishment and vol- 
 untary expatriation. 
 
 The net result of citizenship was that by it 
 alone one became entitled to the protection 
 of the laws — the jus civile. It was exclusive 
 and personal, not territorial. For a discus- 
 sion of the subject, see 17 L. Q. Rev. 270. 
 
 See Jus Civitatis. 
 
 The term citizen was used in Rome to in- 
 
 dicate the possession of private civil rights, 
 including those accruing under the Roman 
 family and inheritance law and the Roman 
 contract and property law. All other sub- 
 jects were peregrines. But in the beginning 
 of the 3d century the distinction was abolish- 
 ed and all subjects were citizens ; 1 Sel. Es- 
 says in Anglo-Amer. L. H. 578. 
 
 By the Roman law the citizenship of the 
 child followed that of the parent. The Code 
 Napoleon changed the law of France, which 
 until then (1S07) had followed the feudal 
 rule that citizenship was determined by 
 birth, to the rule of the descent of blood, the 
 jus sanguinis of the civil law. It has been 
 contended that this is the true principle of 
 international law; Vattel, b. 1, c. 19, § 212; 
 Bar, Int. L. § 31 ; dissenting opinion in U. S. 
 v. Wong Kim Ark, 169 U. S. 649, 18 Sup. Ct. 
 456, 42 L. Ed. 890. But the last case settled 
 the law of the United States that mere birth 
 within the country confers citizenship, fol- 
 lowing the rule of the English common law 
 and denying the existence of a settled and 
 definite rule of international law inconsist- 
 ent therewith. 
 
 In American Law. One who, under the 
 constitution and laws of the United States, 
 has a right to vote for representatives in 
 congress, and other public officers, and who 
 is qualified to fill offices in the gift of the peo- 
 ple. 
 
 All persons born or naturalized in the 
 United States, and subject to the jurisdic- 
 tion thereof, are citizens of the United 
 States and of the state wherein they reside ; 
 14th Amendment, U. S. Const. 
 
 One of the sovereign people. A constituent 
 member of the sovereignty, synonymous with 
 the people. Scott v. Sandford, 19 How. (U. 
 S.) 404, 15 L. Ed. 691. 
 
 A member of the civil state entitled to all 
 its privileges. Cooley, Const. Lim. 77. See 
 U. S. v. Cruikshank, 92 U. S. 542, 23 L. Ed. 
 5S8; Minor v. Happersett, 21 Wall. (U. S.) 
 162, 22 L. Ed. 627 ; Web. Cit. 48. 
 
 The provisions of the U. S. R. S. in rela- 
 tion to citizens are as follows: 
 f . Sec. 1992. All persons born in the United 
 States and not subject to any foreign power, 
 excluding Indians not_taxed, are declared to 
 be citizens of the United States. 
 
 Sec. 1993. All children heretofore born or 
 hereafter born out of the limits and jurisdic- 
 tion of the United States, whose fathers 
 were or may be at the time of their birth citi- 
 zens thereof, are declared to be citizens of 
 the United States ; but the rights of citizen- 
 ship shall not descend to children whose fa- 
 thers never resided in the United States. 
 
 Sec. 199k- Any woman who is now or may 
 hereafter be married to a citizen of the Unit- 
 ed States, and who might herself be lawfully 
 naturalized, shall be deemed a citizen. 
 
 The term natural-bom citizen used in the 
 federal constitution is not therein defined.
 
 CITIZEN 
 
 491 
 
 CITIZKN 
 
 Its meaning must be gathered from the com- 
 mon law; U. S. v. Wong Kim Ark, 1G9 U. 
 S. 649, IS Sup. Ct. 456, 42 L. Ed. 890. 
 
 Citizens are either native-born or natu- 
 ralized. Native citizens may fill any office; 
 naturalized citizens may be elected or ap- 
 pointed to any office uuder the constitution 
 of the United States, except the offices of 
 president and vice-president. 
 
 The right of citizenship never descends in 
 the legal sense, either by the common law, 
 or under the common naturalization acts. It 
 is incident to birth in the country, or it is 
 given personally by statute; Pamphlet by 
 Mr. P.inney on the AJienigense of the United 
 States (1853), partly published in 2 Am. L. 
 Reg. 193 (1854). See sub-tit. In Roman Law, 
 supra. 
 
 Generally it is presumed, at least until the 
 contrary is shown, that every person is a 
 citizen of the country in which he resides; 
 Shelton v. Tiffin, 6 How. (U. S.) 103, 12 L. 
 Ed. 387; Molyneaux v. Seymour, 30 Ga. 440, 
 76 Am. Dec. 6(32 ; State v. ilaynes, 54 la. 
 109, 6 N. W. 156; Moore v. Wilson's Adm'rs, 
 10 Yerg. (Tenn.) 406; Quinby v. Duncan, 4 
 Harr. (Del.) 383. Where it is shown that 
 a person was once a citizen of a foreign coun- 
 try even though residing in another, the pre- 
 sumption is, until the contrary appears, that 
 he still remains such ; Hauenstein v. Lyn- 
 ham, 100 U. S. 483, 25 L. Ed. G2S; Ehrlich v. 
 Weber, 114 Tenn. 711, 88 S. W. 1S8 ; Bode v. 
 Trimmer, 82 Cal. 513, 23 Pac. 187; Charles 
 Green's Son v. Salas, 31 Fed. 106. Evidence 
 of foreign birth overcomes the presumption 
 of citizenship raised by residence and raises 
 the presumption of citizenship of the coun- 
 try of birth ; State v. Jackson, 79 Vt 504, 65 
 Atl. 657, 8 L. R. A. (N. S.) 1245. 
 
 The first clause of section 1 of the 14th 
 Amendment of the United States Constitu- 
 tion for the first time recognizes and defines 
 citizenship of the United States and makes 
 those who are entitled to it citizens of the 
 state in which they reside. This amendment 
 changed the origin and character of Ameri- 
 can citizenship, or at least removed all doubt. 
 Instead of a man's being a citizen of one of 
 the states, he was now made a citizen of any 
 state in which he might choose to reside be- 
 cause he was antecedently a citizen of the 
 United States. Blaine, Twenty Years of 
 Congress, vol. 2, p. 189. There is therefore a 
 twofold citizenship under our system — fed- 
 eral citizenship and state citizenship; 
 Slaughter-House Cases, ltj Wall. (U. S.) 36, 
 21 L. Ed. 394; U. S. v. Cruikshank, 92 U. S. 
 542, 23 L. Ed. 5SS ; Twining v. New Jersey, 
 211 U. S. 78, 29 Sup. Ct. 14, 53 L. Ed. 97. 
 One may be a citizen of the United Stales 
 without being a citizen of a state, and an 
 important element is necessary to convert the 
 former into the latter. He must reside with- 
 in the state to make him a citizen thereof, 
 but it is only necessary that he should be 
 born or naturalized in the United States to 
 
 make him a citizen of the Union: Slaughter 
 House Cases, 16 Wall. (1 73, 21 K 
 
 Ed. 394; U. S. v. Wong Kim Ark, 169 U. S. 
 649, 18 Sup. Ct. 456, 42 L. Ed. 
 
 The object of the amendment in respect to 
 citizenship was to preserve equality of rights 
 and prevent discrimination between ci' 
 but not radically to change the w] 
 of state and federal governments and the 
 relation of both to the people or to 
 other; McPherson v. Blacker, IK; I . 
 13 Sup. Ct. 3, 36 L. Ed. 869. It d< Clares that 
 persons may be citizens of the United States 
 without regard to their citizenship of a par- 
 ticular state and makes "a// persona born 
 within the United States and subject to its 
 jurisdiction citizens of the United States." 
 This language is intended to except children 
 of "ministers, consuls, and citizens or sub- 
 jects of foreign states born within the United 
 States." In order to make a citizen of the 
 United States also a citizen of a state, he 
 must reside within it. This distinction be- 
 comes important in connection with the ques- 
 tion, hereafter noted, as to what are the 
 privileges and immunities guaranteed by the 
 amendment; Slaughter-House Cases, 16 Wall. 
 (U. S.) 36, 72, 21 L. Ed. 394. 
 
 The object of the clause is to protect from 
 the hostile legislation of the states the privi- 
 leges and immunities of citizens of the Unit- 
 ed States; U. S. v. Harris, 106 U. S. 629, 1 
 Sup. Ct. 601, 27 L. Ed. 290. It applies, so 
 far as state citizenship is concerned, only to 
 citizens removing from one state to another ; 
 In re Hobbs, 1 Woods, 542, Fed. Cas 
 6,550; Live Stock Dealers' & Butchers' Ass'n 
 v. Slaughter-House Co., 1 Abb. U. S. 397, 
 Fed. Cas. No. S,40S. The constitution had 
 already provided in art. IV, § 2, that "the 
 citizens of each state shall be entitled to all 
 the privileges and immunities of citizens in 
 the several states." As to the scope and 
 meaning of these words, see Privileges and 
 Immunities. 
 
 The 14th Amendment was not intended to 
 impose any new restrictions upon citizenship 
 or to prevent any persons from becoming 
 citizens by the fact of birth within the Unit- 
 ed States, who would thereby have become 
 citizens according to the law existing before 
 its adoption. It is declaratory In form and 
 enabling and extending in effect Its main 
 purpose was to establish the citizenship of 
 free negroes and to put it beyond doubt that 
 all blacks as well as whites born or natural- 
 ized within the jurisdiction of the United' 
 States are citizens thereof; U. S. v. Wong 
 Kim Ark. 169 l". S. 649, 18 Sup. Ct. 456, 42 
 L. Ed. 890; Slaughter-House Cases, 16 Wall. 
 (U. S.) 36, 21 L. Ed. 394; Strauder v. West 
 Virginia, 100 U. S. 303, 25 L. Ed. 664; In re 
 Virginia, 100 U. S. 339, 25 L. Ed. 676; Neal 
 v. Delaware, 103 U. S. 370, 26 L. Ed. 507; 
 Elk v. Wilkins, 112 U. S. 94, 5 Sup. Ct. 41, 28 
 L. Ed. 643 ; Benny v. O'Brien, 58 N. J. L. 36.
 
 CITIZEN 
 
 492 
 
 CITIZEN 
 
 32 AtL 696; Van Valkenburg v. Brown, 43 
 Cal. 43, 13 Am. Rep. 136. 
 
 The Civil Rights Act of 1866 used lan- 
 guage very similar to that 6f the 14th 
 Amendment, and Harlan, J., in a dissenting 
 opinion quoted from the veto message of 
 President Johnson his interpretation of its 
 meaning : It "comprehends the Chinese of 
 the Pacific states, Indians subject to taxa- 
 tion, the people called gypsies, as well as the 
 entire race designated as blacks, persons of 
 color, negroes, mulattoes, and persons of 
 African blood. Every individual of those 
 races born in the United States is made a 
 citizen thereof;" Elk v. Wilkins, 112 U. S. 
 94, 114, 5 Sup. Ct. 41, 28 L. Ed. 643 ; see also 
 In re Gee Hop, 71 Fed. 274. 
 
 "No white person born within the limits 
 of the United States and subject to their ju- 
 risdiction, or born without those limits and 
 subsequently naturalized under their laws, 
 owes his status of citizenship to the recent 
 amendments to the federal constitution;" 
 Van Valkenburg v. Brown, 43 Cal. 43, 13 Am. 
 Rep. 136. 
 
 The amendment does not give to congress 
 power to protect by legislation the rights of 
 state and national citizenship; Smoot v. Ry. 
 Co., 13 Fed. 337; but it distinguishes be- 
 tween the two ; Frasher v. State, 3 Tex. 
 App. 263, 30 Am. Rep. 131. A person may be 
 a citizen of the United States without being 
 a citizen of any state; Slaughter-House 
 Cases, 16 Wall. (U. S.) 74, 21 L. Ed. 394; 
 U. S. v. Cruikshank, 1 Woods, 308, Fed. Cas. 
 No. 14,S97; Cully v. R. Co., 1 Hughes, 536, 
 Fed. Cas. No. 3,466. The term citizen is 
 analogous to subject at common law ; U. S. 
 v. Rhodes, 1 Abb. U. S. 39, Fed. Cas. No. 16,- 
 151; Sampson v. Burgwin, 20 N. C. 21; Mc- 
 Kay v. Campbell, 2 Sawy. 129, Fed. Cas. No. 
 8,840. The amendment does not confer citi- 
 zenship on persons of foreign birth ; Van 
 Valkenburg v. Brown, 43 Cal. 43, 13 Am. Rep. 
 136. Neither Chinese nor Japanese can be- 
 come citizens ; In re Ah Yup, 5 Sawy. 155, 
 Fed. Cas. No. 104; In re Look Tin Sing, 21 
 Fed. 905; In re Saito, 62 Fed. 126; In re 
 Gee Hop, 71 Fed. 274 ; State v. Ah Chew, 16 
 Nev. 51, 40 Am. Rep. 488; unless born in this 
 country of resident parents not engaged in 
 the diplomatic service ; In re Look Tin Sing, 
 10 Sawy. 353, 21 Fed. 905; U. S. v. Wong 
 Kim Ark, 169 U. S. 649, 18 Sup. Ct 456, 42 L. 
 Ed. 890. 
 
 Indians are not citizens; McKay v. Camp- 
 bell, 2 Sawy. 129, Fed. Cas. No. 8,840 ; Elk v. 
 Wilkins, 112 U. S. 94, 5 Sup. Ct. 41, 28 L. 
 Ed. 643 ; but an Indian if taxed, after tribal 
 relations are dissolved, is a citizen; U. S. v. 
 Elm, 23 Int. Rev. Rec. 419, Fed. Cas. No. 15,- 
 048 ; and the child of a member of one of the 
 Indian tribes within the United States is not 
 a citizen, though born in the United States; 
 McKay v. Campbell, 2 Sawy. 118, Fed. Cas. 
 No. 8,840; and although the parents have 
 given up their tribal relations they cannot 
 
 become citizens until they are first natu- 
 ralized; Elk v. Wilkins, 112 U. S. 94, 103, 5 
 Sup. Ct 41, 28 L. Ed. 643. 
 
 Free persons of color, born in the United 
 States, were always entitled to be regarded 
 as citizens ; U. S. v. Rhodes, 1 Abb. U. S. 28, 
 Fed. Cas. No. 16,151 ; but see Dred Scott v. 
 Sandford, 19 How. (U. S.) 393, 15 L. Ed. 
 691. Negroes born within the United States 
 are citizens; U. S. v. Canter, 2 Bond 389, 
 Fed. Cas. No. 14,719; In re Turner, Chase's 
 Dec. 157, Fed. Cas. No. 14,247 (but not before 
 the 14th Amendment; Dted Scott v. Sand- 
 ford, 9 How. (U. S.) 393, 15 L. Ed. 691 ; Mar- 
 shall v. Donovan, 10 Bush (Ky.) 681) ; but 
 not an escaped slave residing in Canada or 
 his children; People v. Board, 26 Mich. 51, 
 12 Am. Rep. 297. 
 
 A woman is a citizen; Bradwell v. Illinois, 
 16 Wall. (U. S.) 130, 21 L. Ed. 442; Minor 
 v. Happersett, 21 Wall. (U. S.) 162, 22 L. Ed. 
 627; but the amendment does not confer up- 
 on her the right to vote ; U. S. v. Cruikshank, 
 92 U. S. 542, 23 L. Ed. 588; U. S. v. Cruik- 
 shank, 1 Woods, 308, Fed. Cas. No. 14,897 ; U. 
 S. v. Anthony, 11 Blatchf. 200, Fed. Cas. No. 
 14,459; Spencer v. Board, 1 McArthur (D. 
 C.) 169, 29 Am. Rep. 582; Van Valkenburg v. 
 Brown, 43 Cal. 43, 13 Am. Rep. 136; Minor 
 v. Happersett, 21 Wall. (U. S.) 162, 22 L. 
 Ed. 627 ; or to practice law ; Bradwell v. 
 Illinois, supra. 
 
 Children born in a foreign country of 
 American parents, who, though residing 
 there, still claim citizenship, are citizens of 
 the United States; Ware v. Wisner, 50 Fed. 
 310; so if the father only is a citizen ; R. S. 
 § 1993. The children of ambassadors and 
 ministers at foreign courts, however, are 
 citizens; U. S. v. Wong Kim Ark, 169 U. S. 
 649, 18 Sup. Ct. 456,' 42 L. Ed. 890 ; Inglis v. 
 Sailor's Snug Harbor, 3 Pet. (U. S.) 155, 7 
 L. Ed. 617. A person born in this country of 
 alien parents who were domiciled, but not 
 naturalized here, is a citizen ; Benny v. 
 O'Brien, 58 N. J. L. 36, 32 Atl. 696 ; U. S. v. 
 Wong Kim Ark, 169 U. S. 649, 18 Sup. Ct 
 456, 42 L. Ed. 890. The child of American 
 parents born in a foreign country, on board 
 an American ship of which his father was 
 captain is a citizen of the United States; U. 
 S. v. Gordon, 5 Blatchf. 18, Fed. Cas. No. 
 15,231. All children born out of the United 
 States, who are citizens thereof and who con- 
 tinue to reside out of the United States, 
 shall, in order to receive the protection of 
 the government, be required, upon reaching 
 the age of eighteen, to record at an American 
 consulate their intention to become residents 
 and remain citizens of the United States, and 
 shall be further required to take the oath of 
 allegiance to the United States upon attain- 
 ing their majority; Act March" 2, 1907. It is 
 said that formerly a man might from the cir- 
 cumstances of his birth be a subject of two 
 states at once. A child of French parents 
 born in England owed allegiance to the King
 
 CITIZEN 
 
 493 
 
 CITIZEN 
 
 of England. If he went to France he carried 
 with him that allegiance. It was the dis- 
 tinction between the jus soli and the jus san- 
 guinis. Cut by the act of 1870 the reception 
 of a British subject into the allegiance of a 
 foreign state extinguishes his British nation- 
 ality ipso jure; no alien naturalized in Eng- 
 land is to be deemed a British subject while 
 in the country of his original allegiance so 
 long as by the law of that country he re- 
 mains a subject of it, and a man who is a 
 British subject by the jus soli and a for- 
 eigner by the jus sanguinis may make his 
 election between these two conditions ; IS 
 L. Q. Rev. 47. 
 
 The act of March 2, 1907, provides that 
 any American woman who marries a foreign- 
 er shall take the nationality of her husband. 
 At his death, she may resume her American 
 citizenship if abroad, by registering as an 
 American citizen within one year with a con- 
 sul of the United States or by returning to 
 reside in the United States, or, if then re- 
 siding in the United States, by continuing to 
 reside there. 
 
 Any alien woman who acquires American 
 citizenship by marriage to an American shall 
 be assumed to retain the same after his 
 death, if she continue to reside in the United 
 States, unless she makes formal renunciation 
 thereof before a court having jurisdiction to 
 naturalize aliens, or if she resides abroad, 
 she may retain her citizenship by register- 
 ing as such before a United States consul 
 within one year. 
 
 In Comitis v. Parkerson, 56 Fed. 556, it is 
 said : "Four attorney-generals of the United 
 States have given opinions as to the effect of 
 a female citizen marrying an alien husband. 
 Two have held that she became an alien ; 
 two that she remained a citizen." That case 
 held that she did not become an alien merely 
 by her marriage, for both husband and wife 
 intended to reside in this country. 
 
 A French woman, who has become natural- 
 ized under the statute by a marriage with ah 
 American citizen, will again become an alien, 
 by a second marriage to a French citizen 
 residing in this country ; Pequignot v. De- 
 troit, 16 Fed. 211. The common law did not 
 recognize marriage as affecting in any way 
 the nationality of the parties. An alien 
 woman who married a British subject re- 
 mained an alien, and a woman who was a 
 British subject could not put off her allegiance 
 by becoming the wife of an alien. This is 
 changed by the naturalization act of 1870; 
 18 L. Q. R. 49. 
 
 The child born of alien parents in the 
 United States is held to be a citizen thereof, 
 and to be subject to duties with regard to 
 this country which do not attach to the 
 father ; and when children of American fa- 
 thers are born without the jurisdiction of the 
 United States the country within whose ju- 
 risdiction they are born may claim them as 
 citizens; U. S. T. Wong Kim Ark, 109 U. S. 
 
 649, 691, 18 Sup. Ct. 456, 42 L. Ed. 890. Such 
 children are said to be born to a double 
 character; the citizenship of the father is 
 that of the child, so far as the laws of the 
 country of which the father is a citizen are 
 concerned, and within the jurisdiction of that 
 country, but the child may ow< 
 fealty besides that which attaches to the 
 father. Opinions of the Executive Depart- 
 ments on Naturalization, Expatriation, and 
 Allegiance (1S73) 17, 18; U. S. For. Rel. 
 L873 71, 1191, 1192. The conclusions in the 
 opinion above cited by Attorney-General 
 Hoar were quoted and adopted by Secretary 
 Bayard in 1SS6, when a son born of Ameri- 
 can parents in France made an application 
 for a passport ; U. S. For. ReL 1SS6, 303. 
 
 It is said that the children of our citizens 
 born abroad, and the children of foreigners 
 born in the United States, have the right, on 
 arriving at full age, to elect one allegiance 
 and repudiate the other; Whart. Confl. L. §| 
 10, 12. The objection has been taken that as 
 our law provides no right of election by or 
 for a child, as do the continental codes, the 
 resulting dual citizenship is contrary to the 
 theory of citizenship. But the difficulty is 
 said to be rather apparent than real. When 
 a child is born in America of Chinese par- 
 ents, China claims him by the jus sanguinis; 
 America by the jus soli. It is not a question 
 whether he is an American or a Chinaman. 
 He is both. The municipal laws being thus 
 in conflict, his citizenship at any time will 
 depend upon whether he is subject to the 
 jurisdiction of the one or of the other coun- 
 try. The duality of citizenship is a fact, 
 only in a third country. In China he is a 
 Chinaman; in America, an American; 12 
 Harv. L. Rev. 55. See Domicil; Residence; 
 Naturalization ; Alien. 
 
 Where a foreigner takes the oath declar- 
 ing his intention of becoming a citizen of 
 the United States, his minor sons thereby 
 acquire au inchoate status as citizens, and if 
 they attain majority before their father com- 
 pletes his naturalization, they are capable of 
 becoming citizens by other means than the 
 direct application provided for by the natu- 
 ralization laws; Boyd v. Thayer, 143 U. S. 
 135, 12 Sup. Ct. 375, 36 L. Ed. 103; where a 
 resident alien woman marries a naturalized 
 citizen, under R. S. § 2172, her children re- 
 siding with her are citizens; U. S. v. Cellar, 
 11 BisS. 314, 13 Fed. 82; Kreitz v. Behrens- 
 meyer, 125 111. 141, 17 N. EL 232, S Am. St. 
 Rep. 3-19 ; For. Rel. 1900, 527. 
 
 Nationality is not inherited through women 
 and an illegitimate child, born abroad of an 
 American woman, is not a citizen of the 
 United States; ;; Moore, Dig. Int. L. 285; 
 but when the reputed father of an illegiti- 
 mate child marries the mother and was aft- 
 erwards naturalized, the child was a citizen 
 of the United States; Dale v. Irwin. 7S 111. 
 170. The fact that an unnaturalized person 
 of foreign birth is enabled by a state statute
 
 CITIZEN 
 
 494 
 
 CITIZEN 
 
 
 to vote and hold office does not make him a 
 citizen; Lanz v. Randall, 4 Dill. 425, Fed. 
 Cas. No. 8,080. 
 
 The age of the person does not affect his 
 citizenship, though it may his political 
 rights ; 1 Abb. L. Diet. 224 ; nor the sex; id.; 
 Minor v. Happersett, 21 Wall. (U. S.) 162, 
 
 22 L. Ed. 627; U. S. v. Reese, 92 U. S. 214, 
 
 23 L. Ed. 563; the right to vote and the 
 right to hold office are not necessary con- 
 stituents of citizenship; Minor v. Happer- 
 sett, 21 Wall. (U. S.) 162, 22 L. Ed. 627; 
 Van Valkenburg v. Brown, 43 Cal. 43, 13 Am. 
 Rep. 136r 
 
 All natives are not citizens of the United 
 States: the descendants pf the aborigines 
 are not entitled to the rights of citizens; 
 see supra; also Elk v. Wilkins, 112 TL S. 103, 
 5 Sup. Ct. 41, 28 L. Ed. 643. Anterior to the 
 adoption of the constitution of- the United 
 States, each state had the right to make citi- 
 zens of such persons as it pleased. 
 
 A citizen of the United States residing in 
 any of the states is a citizen of that state ; 
 Gassies v. Ballon, 6 Pet. (U. S.) 761, 8 L. 
 Ed. 573 ; Catlett v. Ins. Co., Paine 594, Fed. 
 Cas. No. 2,517 ; Health v. Austin, 12 Blatch. 
 320, Fed. Cas. No. 6,305; Prentiss v. Barton, 
 1 Brock. 391, Fed. Cas. No. 11,384; Rogers 
 v. Rogers, 1 Paige Ch. (N. Y.) 183; Smith 
 v. Moody, 26 Ind. 299. 
 
 A person may be a citizen for commercial 
 purposes and not for political purposes; 
 Field v. Adreon, 7 Md. 209. 
 
 Among the rights which belong to the citi- 
 zen derived from the constitution and laws 
 of the United States are the right to vote at 
 a federal election; In re Yarbrough, 110 U. 
 S. 651, 4 Sup. Ct. 152, 28 L. Ed. 274; the 
 right to remain on a homestead entry for the 
 purpose of perfecting the title ; U. S. v. Wad- 
 dell, 112 U. S. 76, 5 Sup. Ct. 35, 28 L. Ed. 
 673 ; the right to protection while in custody 
 on a charge of crime of the officers of the 
 United States ; Logan v. U. S., 144 U. S. 263, 
 12 Sup. Ct. 617, 36 L. Ed. 429 ; the right to 
 furnish information to the authorities of 
 violations of the laws of the United States ; 
 In re Quarles, 158 U. S. 532, 15 Sup. Ct. 959, 
 39 L. Ed. 1080 ; Motes v. U. S., 178 U. S. 458, 
 20 Sup. Ct. 993, 44 L. Ed. 1150; the right to 
 contract outside the state for insurance on 
 his property ; Allgeyer v. Louisiana, 165 U. 
 S. 578, 17 Sup. Ct. 427, 41 L. Ed. 832. But 
 the constitution of the United States does not 
 secure to any the right to work at a given 
 occupation or a particular calling free from 
 injury, oppression or interference by individ- 
 ual citizens; Hodges v. U. S., 203 U. S. 1, 
 27 Sup. Ct. 6, 51 L. Ed. 65. 
 
 All persons who deserted the naval or 
 military service of the United States, and 
 did not return thereto within sixty days 
 after the issuance of the proclamation of 
 the president, dated March 11, 1865, are 
 deemed to have voluntarily relinquished and 
 forfeited their rights of citizenship, and to 
 
 be incapable of holding any office of trust or 
 profit under the United States, or of exercis- 
 ing any rights of citizenship thereof; R. S. 
 § 1996. 
 
 As to citizenship as acquired by natural- 
 ization, see Allegiance ; Naturalization ; 
 Alien. 
 
 Citizenship, not residence, confers the right 
 to sue in the federal courts; Haskell v. 
 Bailey, 63 Fed. 873, 11 C. C. A. 476. See 
 Reno. Non-Residents, c. vii. Corporations 
 are citizens of the state by which they are 
 created, irrespective of the citizenship of 
 their members ; Paul v. Virginia, 8 Wall. (U. 
 S.) 168, 19 L. Ed. 357; National S. S. Co. v. 
 Tugman, 106 U. S. 118, 1 Sup. Ct. 58, 27 L. 
 Ed. 87; St. Louis & S. F. R. Co. v. James, 
 161 U. S. 545, 16 Sup. Ct. 621, 40 L. Ed. 802 ; 
 Orient Ins. Co. v. Daggs, 172 U. S. 557, 19 
 Sup. Ct. 281, 43 L. Ed. 552. If two corpora- 
 tions created by different states, are consoli- 
 dated each still retains its own citizenship 
 for purposes of suit; Nashua & L. R. Corp. 
 v. R. Co., 136 U. S. 356, 10 Sup. Ct. 1004, 34 
 L. Ed. 363; Williamson v. Krohn, 66 Fed. 
 655, 13 C. C. A. 668. See Reno. Non-Resi- 
 dents, § 104. See Merger. 
 
 There is an indisputable legal presump- 
 tion that a state corporation, when sued or 
 suing in a circuit court of the United States, 
 is composed of citizens of the state which 
 created it; and this presumption accom- 
 panies it when it does business in another 
 state, and it may sue or Be sued in the fed- 
 eral courts in such other state as a citizen of 
 the state of its original creation ; St. Louis 
 & S. F. R. Co. v. James, 161 U. S. 545, 16 
 Sup. Ct. 621, 40 L. Ed. 802; Barrow S. S. 
 Co. v. Kane, 170 U. S. 100, 18 Sup. Ct. 526, 
 42 L. Ed. 964. 
 
 A corporation is not a "citizen" within the 
 meaning of the first clause of section 1 of the 
 14th Amendment; Insurance Co. v. New 
 Orleans, 1 Woods 85, Fed. Cas. No. 7,052; 
 Western Turf Ass'n v. Greenberg, 204 U. S. 
 359, 27 Sup. Ct. 384, 51 L. Ed. 520; North- 
 western Nat. Life Ins. Co. v. Riggs, 203 U. 
 S. 243, 27 Sup. Ct. 126, 51 L. Ed. 168, 7 Ann. 
 Cas. 1104; Pembina Consol. Silver Min. & 
 Mill. Co. v. Pennsylvania, 125 U. S. 181, 8 
 Sup. Ct. 737, 31 L. Ed. 650 ; but it is a person 
 (q. v.). In many cases a corporation is treat- 
 ed as a citizen for purposes of jurisdiction ; 
 U. S. v. Transp. Co., 164 U. S. 686, 17 Sup. 
 Ct. 206, 41 L. Ed. 599. In order to ac- 
 complish this result a curious legal fiction 
 was created which is discussed infra. 
 
 It may now be considered as fairly well 
 settled that except as to the 14th Amend- 
 ment as stated supra, corporations are recog- 
 nized as citizens by all departments of the 
 federal government. This was done by the 
 Supreme Court in construing an act for pay- 
 ment of "claims for property of citizens of 
 the United States" taken or destroyed by 
 Indians. It was held that the word "citi- 
 zen" included corporations; U. S. v. Transp.
 
 CITIZEN 
 
 495 
 
 CITIZKX 
 
 Co., 104 U. S. 686, 17 Sup. Ct. 206, 41 L. Ed. 
 599. The word has also been frequently 
 used by Congress to include corporations; 
 id., where au instance is referred to in R. 
 S. § 2319; the right to purchase mineral de- 
 posits in public lands is given to "citizens 
 of the United States and those who have de- 
 clared their intention to become such," and 
 section 2321 in prescribing how citizenship 
 shall be established, makes specific provi- 
 sion for the evidence required "in the case 
 of a corporation organized under the laws 
 of the United States or of any state or 
 territory thereof." Again corporations are 
 expressly recognized as citizens by the ex- 
 ecutive branch of the government in various 
 treaties with Great Britain, Venezuela, Peru 
 and Mexico, all referred to in the case last 
 cited, 164 U. S. at page 689, 17 Sup. Ct 206, 
 41 L. Ed. 599. 
 
 The doctrine that a corporation Is a "citi- 
 zen" was not accepted in the first instance, 
 but it was treated as an association of in- 
 dividuals whose citizenship should control 
 the question of federal jurisdiction; Bank of 
 U. S. v. Deveaux, 5 Cra. (U. S.) 61, 3 L. Ed. 
 38, where Marshall, C. J., delivered the opin- 
 ion. But this doctrine was speedily ques- 
 tioned and the Chief Justice regretted the 
 decision and expressed his conviction that 
 it was unsound in principle ; Louisville, C. & 
 C. R. Co. v. Letson, 2 How. (U. S.) 555, 11 
 L. Ed. 353. The case however was followed; 
 Breithaupt v. Bank, 1 Pet. (U. S.) 238, 7 L. 
 Ed. 127; and not until after his death depart- 
 ed from. It was then first held that, "when 
 a corporation exercises its powers in the 
 state which chartered it, that is its resi- 
 dence, and such an averment is sufficient 
 to give the circuit courts jurisdiction." 
 Louisville, C. & C. R. Co. v. Letson, 2 How. 
 (U. S.) 559, 11 L. Ed. 353. In that case the 
 , doctrine was decisively sustained that "a 
 corporation created by and doing business in 
 a particular state is to be deemed to all in- 
 tents and purposes as a person, although an 
 artificial person, an inhabitant of the same 
 state, for the purposes of its incorporation, 
 capable of being treated as a citizen of that 
 state as much as a natural person. Like a 
 citizen it makes contracts, and though in 
 regard to what it may do in some particu- 
 lars, it differs from a natural person, and 
 in this especially, the manner in which it 
 can sue and be sued, it is substantially, with- 
 in the meaning of the law, a citizen of the 
 state which created it and where its busi- 
 ness is done, for all the purposes of suing 
 and being sued." 
 
 A few years after, Daniels, J., in a disi 
 senting opinion insisted that a corporation 
 could be in no sense a citizen, and Catron, 
 J., in one of the majority opinions in the 
 same case, considered that the jurisdiction 
 in cases of corporations depended upon the 
 citizenship of the managing officers; Bundle 
 v. Canal Co., 14 How. 101, 14 L. Ed. 335. 
 
 Very soon after this, against strong d s- 
 sent, the doctrine of the conclusive presun p- 
 tion from the habitat of a corporation 
 the residence or citizenship of those «no 
 used its name and exercised its faculties, 
 was pronounced; Marshall v. R. Co., 16 How. 
 314, 14 L. Ed. 953. This presumption 
 reaffirmed and both parties held 
 with respect to it; Covington Drawbriduc- 
 Co. v. Shepherd, 20 How. 227, 15 L. Ed. 
 and the presumption was held to be a "legal" 
 one, which no averment or evidence might 
 rebut ; Ohio & M. R. Co. v. Wheeler, 1 I 
 286, 17 L. Ed. 130; and in Mullet v. 1 
 94 U. S. 444, 24 L. Ed. 207, the court, by 
 Strong, J., said, "A corporation itself can 
 be a citizen of no state in the sense in which 
 the word 'citizen' is used in the constitution 
 of the United States," and then reiterates 
 the doctrine of conclusive presumption as 
 settled law. Thus the theory on which cor- 
 porations were finally recognized as citizens 
 was based upon what Baldwin, C. J., proper- 
 ly characterized as a legal fiction ; 41 Am. 
 L. Rev. 38. This fiction, as he says, was 
 given definite, and as it was supposed final, 
 shape by Taney, C. J., in Ohio & M. R. Co. 
 v. Wheeler, 1 Black, 280. 17 L. Ed. 130, where 
 not only was the doctrine of conclusive pre- 
 sumption sustained, but it was also said 
 that "in such a suit it can make no differ- 
 ence whether plaintiffs sue in their own 
 proper names or by the corporate name and 
 style by which they are described." 
 
 The difficulties arising from the extension 
 of corporate operations to different states 
 necessarily caused some modification of the 
 doctrine, and when the courts were asked to 
 extend it so that a corporation of one state 
 (conclusively presumed to be composed of 
 citizens of that state) was authorized by the 
 law of another state to do business therein, 
 that it should be deemed to be composed 
 of citizens of the second state with the 
 same jurisdictional results, they said, "We 
 are unwilling to sanction such an extension 
 of the doctrine, which, as hereto! 
 lished, went to the very verge of judicial 
 power," and having stated the doctrine as 
 beginning with an assumption of fact that 
 state corporations were composed of citi- 
 zens of the state creating them and then 
 the change of the presumption to one of law, 
 said, "There we are content to leave it:" St. 
 Louis & S. V. Ry. Co. v. James, 161 U. S. 545, 
 10 Sup. Ct. 621, 40 L. Ed. 802. Finally when 
 e arose in which the suit was brought 
 against a corporation by a stockholder as- 
 serting the control of the corporation by 
 antagonistic Interests, it was held that there 
 might be proof that the stockholder was not 
 a citizen of the state which created the 
 corporation, and that he had a constitution- 
 al right to bring his suit in the federal 
 court. The court said: "It is one thing to 
 give to a corporation a status, aud another 
 thing to take from a citizen the right given
 
 CITIZEN 
 
 496 
 
 CIVIL 
 
 him by the constitution." Accordingly, it 
 was considered that the presumption of citi- 
 zenship of stockholders must give way to 
 the actual fact proved that the complainant 
 was a citizen of a different state, and that 
 thereupon the jurisdiction attached. After 
 quoting the phrase above cited from 161 U. 
 S. 545, that the doctrine as then settled 
 "went to the very verge of judicial power," 
 it was added: "Against the further step 
 urged by appellees we encounter the Con- 
 stitution of the United States." Doctor v. 
 Harrington. 196 U. S. 579, 25 Sup. Ct. 355, 
 49 L. Ed. 606. Thus in this case the court, 
 as is said by Baldwin, C. J., in the article 
 above cited, "marked the limits of the 
 verge, but in such a way as practically to 
 overrule many of their earlier decisions." 
 The precise question decided in the last 
 case had undoubtedly been determined dif- 
 ferently long before, where citizens of Loui- 
 siana sued a Mississippi Bank and a plea 
 to the jurisdiction, that two other citizens 
 of Louisiana were among the shareholders, 
 was sustained; Commercial & R. Bank v. 
 Slocomb, 14 Pet. (U. S.) 60, 10 L. Ed. 354; 
 the changed result is attributed, by Bald- 
 win, C. J., to the fact, not that the written 
 law had changed, but that "a new genera- 
 tion of judges gave it a new interpretation 
 and twisted a new theory into an old shape," 
 and the ease with which this was done he 
 considers as striking evidence both of the 
 strength of a written constitution and the 
 futility of a written fiction. 
 
 CITY. In England. An incorporated town 
 or borough which is or has been the see of 
 a bishop. Co. Litt. 10S; 1 Bla. Com. 114; 
 Cowell. There is said, however, to be no 
 necessary connection between a city and a 
 see. Oxford Diet., citing Freeman. 
 
 A large town incorporated with certain 
 privileges. The inhabitants of a city. The 
 citizens. Worcester, Diet. 
 
 Although the first definition here given is sanc- 
 tioned by such high authority, it is questionable if 
 it is essential to its character as a city, even in 
 England, that it has been at any time a see ; and it 
 certainly retains its character of a city after it has 
 lost its ecclesiastical character; 1 Steph. Com. 115; 
 1 Bla. Com. 114 ; and in the United States it is 
 clearly unnecessary that it should ever have possess- 
 ed this character. Originally, this word did not sig- 
 nify a town, but a portion of mankind who lived 
 under the same government — what the Romans call- 
 ed civitas, and the Greeks tto/uc; whence the word 
 politeia — civitas seu reipublicce status et adminis- 
 tratio. Toullier, Dr. Civ. Fr. 1. 1, t. 1, n. 202; Hen- 
 rion de Pansey, Pouvoir Municipal, pp. 36, 37. 
 
 By cities in the Middle Ages in Germany 
 was meant fortified places in the enjoyment 
 of market-jurisdiction. The German as well 
 as the French cities are a creation of the 
 Middle Ages; there was an organic connec- 
 tion with the Roman town-system. Schrod- 
 er, Lehrbuch des Deutchen Rechtsgeschichte 
 588. 
 
 CIVIL. In contradistinction to barbarous 
 or savage, indicates a state of society re- 
 
 duced to order and regular government: 
 thus, we speak of civil life, civil society, civil 
 government, and civil liberty. In contra- 
 distinction to criminal, to indicate the pri- 
 vate rights and remedies of men, as members 
 of the community, in contrast to those which 
 are public and relate to the government: 
 thus, we speak of civil process and criminal 
 process, civil jurisdiction and criminal juris- 
 diction. 
 
 It is also used in contradistinction to null- 
 tartj or ecclesiastical, to natural or foreign; 
 thus, we speak of a civil station, as opposed 
 to a military or an ecclesiastical station; a 
 civil death, as opposed to a natural death ; a 
 civil war, as opposed to a foreign war ; 
 Story, Const. § 789 ; 1 Bla. Com. 6, 125, 251 ; 
 Montesquieu, Sp. of Laws, b. 1, c. 3; Ruth- 
 erforth, Inst. b. 2, c. 2; id. c. 3; id. c. 8, p. 
 359; Heineccius, Elem. Jurisp. Nat. b. 2, ch. 6. 
 
 CIVIL ACTION. In the Civil Law. — A 
 personal action which is instituted to com- 
 pel payment, or the doing some other thing 
 which is purely civil. Pothier, Introd. Gen. 
 aux Cont. 110. 
 
 At Common Law. — An action which has 
 for its object the recovery of private or civil 
 rights or compensation for their infraction. 
 See Action. 
 
 CIVIL COMMOTION. An insurrection of 
 the people for general purposes, though it 
 may not amount to rebellion where there 
 is an usurped power. 2 Marsh. 793. 
 
 In the printed proposals which are considered as 
 making a part of the contract of insurance against 
 fire, it is declared that the insurance company will 
 not make good any loss happening by any civil 
 commotion. 
 
 CIVIL CONTEMPT. See Contempt. 
 
 CIVIL DAMAGE ACTS. Acts passed in 
 many of the United States which provide 
 an action for damages against a vender of 
 intoxicating liquors, on behalf of the wife 
 or family of a person who has sustained 
 injuries by reason of his intoxication. Dice 
 v. Sherbemeau, 152 Mich. 601, 116 N. W. 
 416, 16 L. R. A. (N. S.) 765: Bistline v. Ney 
 Bros., 134 la. 172, 111 N. W. 422, 13 L. R. 
 A. (N. S.) 1158, 13 Ann. Cas. 196. 
 
 Such an act, even if it allows an action 
 against the owner of the property where 
 the liquor was sold, without evidence that 
 he authorized the sale, is constitutional; 
 Bertholf v. O'Reilly, 74 N. Y. 509, 30 Am. 
 Rep. 323. See, also, Bedore v. Newton, 54 
 N. H. 117; Moran v. Goodwin, 130 Mass. 158, 
 39 Am. Rep. 443; Wightman v. Devere, 33 
 Wis. 570; Stanton v. Simpson, 48 Vt. 628. 
 Where the owner of a building had no knowl- 
 edge as to how his premises were used, he is 
 nevertheless liable where his agent rents 
 it for the sale of intoxicating liquors; Hall 
 v. Germain, 131 N. Y. 536, 30 N. E. 591. 
 See Keedy v. Howe, 72 111. 133. The act 
 in New York creates a new right of action, 
 viz., for injury to the "means of support;"
 
 CIVIL DAMAGE ACTS 
 
 497 
 
 CIVIL LAW 
 
 It is not necessary that the injury should be 
 one remediable at common law; Volans v. 
 Owen, 74 N. Y. 526, 30 Am. Rep. 337. In- 
 jury to means of support is not necessarily 
 deprivation of the bare necessities of life, 
 but any substantial subtraction from the 
 maintenance suitable to the man's business 
 and condition of life; Herring v. Ervin, -IS 
 111. App. 369. The Indiana act is constitu- 
 tional, even though the liquor-seller was li- 
 censed ; Horning v. Wendell, 57 Iud. 171. So 
 in Kehrig v. Peters, 41 Mich. 475, 2 N. W. 
 801. If the death of the husband can be 
 traced to an intervening cause, the liquor- 
 seller is not liable; Schmidt v. Mitchell, 84 
 111. ID."), 25 Am. Rep. 446; Collier v. Early, 54 
 1ml. 569. Intoxication must be shown to 
 have been the proximate civ.se of the injury; 
 Beem v. Chestnut, 120 [nd. 390, 22 N. E. 303. 
 Damages for injuries resulting in death 
 cannot be recovered; Kirchner v. Myers, 35 
 Ohio St. 85, 35 Am. Rep. 508, G01; contra, 
 Boose v. Perkins, 9 Neb. 304, 2 N. \V. 71."., ::i 
 Am. Rep. 409; Hayes v. Phelan, 4 Hun (N. 
 Y.) 7::::; Mead v. Stratton, 87 N. Y. 403. 41 
 Am. Rep. 380; Flynn v. Fogarty, 10G 111. 203; 
 Bedore v. Newton, 54 N. II. 117; Bafferty v. 
 Buckman, 46 la. 195; but see Jackson v. 
 Brookins, 5 Hun (N. Y.) 530; Davies v. Mc- 
 Knight, 146 Pa. 610, 23 Atl. 320. In some 
 states exemplary damages can be recovered ; 
 Weitz v. Ewen, 50 la. 34 ; Gilmore v. Math- 
 ews, 67 Me. 517 ; Bean v. Green, 33 Ohio St. 
 444; con Ira, Ward v. Thompson, 48 la. 5S8. 
 The fact that the wife had bought liquor 
 from the defendant under compulsion, or 
 in order to keep her husband at home, does 
 not defeat her right; id. 
 
 CIVIL DEATH. That change of state of a 
 person which is considered in the law as 
 equivalent to death. See Death. 
 
 CIVIL LAW. This term is generally used 
 to designate the Roman jurisprudence, jus 
 civile Romanorum. 
 
 In its most extensive sense, the term Roman Law 
 comprises all those legal rules and principles which 
 were in force among the Romans, without refer- 
 ence to the time when they were adopted. But In 
 a more restricted sense we understand by it the law 
 compiled under the auspices of the Emperor Jus- 
 tinian, and which are still in force in many of the 
 states of modern Europe, and to which all refer as 
 authority or written reason. 
 
 The ancient leges curiatw are said to have been 
 collected in the time of Tarquin, the last of the 
 kings, by a pontifex maximus of the name of Sextus 
 or Publius Papinius. This collection is known un- 
 der the title of Jus Civile Papinianum; its exist- 
 ing fragments are few, and those of an apocryphal 
 character. Maekeldey § 21. 
 
 After a fierce and uninterrupted struggle between 
 the patricians and plebeians, the latter extorted 
 from the former the celebrated law of the Tuclre 
 Tables, in the year 300 of Rome. This law, framed 
 by the decemvirs and adopted in the cumitia cen- 
 turiata, acquired great authority, and constituted 
 the foundation of all the public and private laws of 
 the Romans, subsequently, until the time of Jus- 
 tinian. It Is called Lex Decemviralis. From this 
 period the sources of the jus script um consisted 
 in the leges, the plebiscita, the senatus consulta, and 
 the constitutions of the emperors, constitutiones 
 
 Bouv.— 32 
 
 principium; and the jus non scriptum was found 
 partly in the mores majorum, the consuetude, and 
 the res judicata, or auctoritas rerum perpetua 
 iter judicatorum. The edicts of the magistrates, 
 or jus honorarium, also formed a part of the un- 
 written law ; but by far the most prolific source of 
 the jus non scriptum consisted in the opinions and 
 writings of the lawyers — responsa prudentium. 
 
 The few fragments of the twelve tables that have 
 come down to us are stamped with the harsh fea- 
 tures of their aristocratic origin. But the jus hono- 
 rarium established by the praetors and other magis- 
 trates, as well as that part of the customary law 
 which was built up by the opinions and writings of 
 the prudentes, are founded essentially on principles 
 of natural justice. 
 
 Many collections of the imperial constitutions had 
 been made before the advent of Justinian to the 
 throne. He was the first after Theodosius who 
 ordered a new compilation to be made. For this 
 purpose he appointed a committee of ten lawyers, 
 with very extensive powers; at their head was the 
 ex-quaestor sacri palatii, Johannes, and among them 
 the afterwards well-known Tribonian. His instruc- 
 tions were to select, In the most laconic form, all 
 that was still of value in the existing collections, 
 as well as in the later constitutions ; to omit all 
 obsolete matter ; to introduce such alterations as 
 were required by the times ; and to divide the 
 whole into appropriate titles. Within fourteen 
 months the committee had finished their labors. 
 Justinian confirmed this new code, which consisted 
 of twelve books, by a special ordinance, and pro- 
 hibited the use of the older collections of rescripts 
 and edicts. This code of Justinian, which is now 
 called Codex vetus, has been entirely lost. 
 
 After the completion of this code, Justinian, in 
 530, ordered Tribonian, who was now invested with 
 the dignity of quaestor sacri palatii, and sixteen 
 other jurists, to select all the most valuable pas- 
 sages from the writings of the old jurists which 
 were regarded as authoritative, and to arrange 
 them, according to their subjects, under suitable 
 heads. These commissioners also enjoyed very ex- 
 tensive powers; they had the privilege, at their dis- 
 cretion, to abbreviate, to add, and to make such 
 other alterations as they might consider adapted to 
 the times ; and they were especially ordered to re- 
 move all the contradictions of the old Jurists, to 
 avoid all repetitions, and to omit all that had be- 
 come entirely obsolete. The natural consequence of 
 this was, that the extracts did not always truly rep- 
 resent the originals, but were often interpolated and 
 amended in conformity with the existing law. Al- 
 terations, modifications, and additions of this kind 
 are now usually called cmblemata Triboniani. This 
 great work is called the Pandects, or Digest, and 
 was completed by the commissioners in three years. 
 Within that short space of time, they had extracted 
 from the writings of no less than thirty-nine Jurists 
 all that they considered valuable for the purpose of 
 this compilation. It was divided into fifty books, 
 and was entitled Digesta sive Pandcctae juris enu- 
 cleati ex omni veterc jure collecti. The Pandects 
 were published on the 16th of December, 533, but 
 they did not go into operation until the 30th of that 
 month. In confirming the Pandects, Justinian pro- 
 hibited further reference to the old jurists ; and, in 
 order to prevent legal science from becomhif: 
 so diffuse, indefinite, and uncertain as it had pre- 
 viously been, he forbade the writing of commenta- 
 ries upon the new compilation, and permitted only 
 the making of literal translations into Greek. 
 
 In preparing the Pandects, the compilers met 
 very frequently with controversies In the writings 
 of the jurists. Such questions, to the number of 
 thirty-four, had been already determined by Jus- 
 tinian before the commencement of the collection 
 of the Pandects, cud before its completion the de- 
 cisions of this kind were increased to fifty, and were 
 known as the fifty decisions of Justinian. These de- 
 cisions were at first collected separately, and after- 
 ward embodied in the new code. 
 
 For the purpose of facilitating the study of the 
 law, Justinian ordered Tribonian, with the assist- 
 ance of Theophilus and Dorotheus, to prepare a 
 brief system of law under the title of Institutes.
 
 CIVIL LAW 
 
 498 
 
 CIVIL LAW 
 
 which should contain the elements of legal science. 
 This work was founded on, and to a great extent 
 copied from, the commentaries of Gaius, which, aft- 
 er having been lost for many centuries, were discov- 
 ered by the great historian Niebuhr, in 1S16, in a 
 palimpsest, or re-written manuscript, of some of the 
 homilies of St. Jerome, in the Chapter Library of 
 Verona. What had become obsolete in the com- 
 mentaries was omitted in the Institutes, and ref- 
 erences were made to the new constitutions of Jus- 
 tinian so far as they had been issued at the time. 
 Justinian published his Institutes on the 21st No- 
 vember, 533, and they obtained the force of law at 
 the same time with the Pandects, December 30, 533. 
 Theophilus, one of the editors, delivered lectures 
 on the Institutes in the Greek language, and from 
 these lectures originated the valuable commentaries 
 known under the Latin title, Theophili Antecessors 
 Paraphrase Grceca Institutionum Ccesarearum. The 
 Institutes consist of four books, each of which con- 
 tains several titles. 
 
 After the publication of the Pandects and the 
 Institutes, Justinian ordered a revision of the Code, 
 which had been promulgated in the year 529. This 
 became necessary on account of the great number 
 of new constitutions which he had issued, and of the 
 fifty decisions not included in the Old Code, and by 
 which the law had been altered, amended, or modi- 
 fied. He therefore directed Tribonian, with the as- 
 sistance of Dorotheus, Menna, Constantinus, and 
 Johannes, to revise the Old Code and to incorporate 
 the new constitutions into it This revision was 
 completed in the same year ; and the new edition of 
 the Code, Codex repetitce prcelectionis, was con- 
 firmed on the 16th November, 534, and the Old Code 
 abolished. The Code contains twelve books sub- 
 divided into appropriate titles. 
 
 During the interval between the publication of 
 the Codex repetitce prcelectionis, in 535, to the end 
 of his reign, in 565, Justinian issued, at different 
 times, a great number of new constitutions, by 
 which the law on many subjects was entirely chang- 
 ed. The greater part of these constitutions were 
 written in Greek, in obscure and pompous language, 
 and published under the name of Novellce Constitu- 
 tiones, which are known to us as the Novels of Jus- 
 tinian. Soon after his death, a collection of one 
 hundred and sixty-eight Novels was made, one hun- 
 dred and fifty-four of which had been issued by Jus- 
 tinian, and the others by his successors. 
 
 Justinian's collections were, in ancient times, al- 
 ways copied separately, and afterwards they were 
 printed in the same way. When taken together, 
 they were indeed called, at an early period, the Cor- 
 pus Juris Civilis; but this was not introduced as 
 the regular title comprehending the whole body; 
 each volume had its own title until Dionysius Goth- 
 ofredus gave this general title in the second edition 
 of his glossed Corpus Juris Civilis, in 1604. Since 
 that time this title has been used in all the editions 
 of Justinian's collections. 
 
 It is generally believed that the laws of Justinian 
 were entirely lost and forgotten in the Western 
 Empire from the middle of the eighth century until 
 the alleged discovery of a copy of the Pandects at 
 the storming and pillage of Amalfi, in 1135. This is 
 one of those popular errors which had been handed 
 down from generation to generation without ques- 
 tion or inquiry, but which has now been completely 
 exploded by the learned discussion, supported by 
 conclusive evidence, of Savigny, in his History of 
 the Roman Law during the Middle Ages. Indeed, 
 several years before the sack of Amalfi the cele- 
 brated Irnerius delivered lectures on the Pandects 
 in the University of Bologna. The pretended dis- 
 covery of a copy of the Digest at Amalfi, and its be- 
 ing given by Lothaire II. to his allies the Pisans as 
 a reward for their services, is an absurd fable. No 
 doubt, during the five or six centuries when the 
 human intellect was, in a complete state of torpor, 
 the study of the Roman Law, like that of every 
 other branch of knowledge, was neglected; but on 
 the first dawn of the revival of learning the science 
 of Roman jurisprudence was one of the first to at- 
 tract the attention of mankind; and it was taught 
 with such brilliant success as to immortalize the 
 name of Irnerius, its great professor. 
 
 Even at the present time the Roman Law, as a 
 complete system, exercises dominion in every state 
 in Europe except England (though not all of Conti- 
 nental law comes from it. Poll. & Maitl. xxxvi). The 
 countrymen of Lycurgus and Solon are governed by 
 it, and in the vast empire of Russia it furnishes the 
 rule of civil conduct. In America, it is the founda- 
 tion of the law of Louisiana, Canada, Mexico, and 
 all the republics of South America. As to its influ- 
 ence on the common law of England there is great 
 diversity of opinion. The subject is too large to be 
 considered here. It has recently been treated in 
 detail by Holdsworth (Hist, of Engl. Law). 
 
 See Code ; Digests ; Institutes ; Novels ; 
 Basilica. 
 
 CIVIL LIST. An annual sum granted by 
 the English parliament at the commencement 
 of each reign, for the expenses of the royal 
 household and establishment as distinguished 
 from the general exigencies of the state. 
 It is the provision for the crown made out 
 of the taxes in lieu of its proper patrimony 
 and in consideration of the assignment of 
 that patrimony to the public use. Wharton, 
 Diet. 
 
 CIVIL OBLIGATION. One which binds 
 in 'law, and which may be enforced in a 
 court of justice. Pothier, Obi. 173, 191. 
 
 CIVIL OFFICER. Any officer of the Unit- 
 ed States who holds his appointment under 
 the national government, whether his du- 
 ties are executive or judicial, in the highest 
 or the lowest departments of the govern- 
 ment, with the exception of officers of the 
 army and navy. Rawle, Const. 213; 1 Story, 
 Const. § 790. 
 
 The term occurs in the constitution of the United 
 States, art. 2, sec. 4, which provides that the presi- 
 dent, vice-president, and civil officers of the United 
 States shall be removed from office on impeach- 
 ment for, and conviction of, treason, bribery, or 
 other high crimes and misdemeanors. It has been 
 decided that a senator of the United States is not a 
 civil officer within the meaning of this clause of the 
 constitution. Senate Journals, 10th January, 1799; 
 4 Tucker, Bla. Com. App. 57, 58 ; Rawle, Const. 213 ; 
 Sergeant, Const. Law 376; Story, Const. § 791. 
 
 CIVIL REMEDY. The remedy which the 
 party injured by the commission of a tor- 
 tious act has by action against the party 
 committing it, as distinguished from the pro- 
 ceeding by indictment, by which the wrong- 
 doer is made to expiate the injury done to 
 society. 
 
 In cases of treason, felony, and some oth- 
 er of the graver offences, this private reme- 
 dy is suspended, on grounds of public policy, 
 until after the prosecution of the wrong- 
 doer for the public wrong; 4 Bla. Com. 363; 
 12 East 409; Bell's Adm'r v. Troy, 35 Ala. 
 1S4. The law is otherwise in Massachusetts, 
 except, perhaps, in case of felonies punish- 
 able with death: Boardman v. Gore, 15 Mass. 
 333; North Carolina, Smith v. Weaver, 1 N. 
 C. 141; Ohio, Story v. Hammond, 4 Ohio 
 377; South Carolina, Robinson v. Culp, 3 
 Brev. 302; Mississippi, Newell v. Cowan, 30 
 Miss. 492; Tennessee, Ballew v. Alexander, 
 6 Humph. 433; Maine, Belknap v. Milliken, 
 23 Me. 3S1; and Virginia. At common law, 
 in cases of homicide the civil remedy is
 
 CIVIL REMKDY 
 
 499 
 
 CIVIL RIGHTS 
 
 merged in the public punishment; 1 Chit. Pr. 
 10. See Injuries; Merger; Bish. Cr. L. § 2G7. 
 
 CIVIL RIGHTS. A term applied to 
 tain rights secured to citizens of the United 
 States by the 13th and 14th Amendments to 
 the constitution, and by various acts of 
 congress made in pursuance thereof. 
 
 The act of April 9, 1866 ("ordinarily called 
 the 'Civil Rights Bill' ;" Bradley, J., in U. S. 
 v. Stanley. 109 U. S. 3, L6, •': Sup. Ct. 18, 27 
 L. Ed. 835), provided that all persona bom 
 in the United States, and not subject to any 
 foreign power, excluding Indians not taxed, 
 are citizens of the United Slates; that such 
 citizens of every race and color shall have 
 the same right in every state and territory 
 to make and enforce contracts, to sue, be 
 parlies, give evidence, etc., and to the full 
 and equal benefit of all laws and proceed- 
 ings for the security of person and property, 
 as is enjoyed by white citizens, and be sub- 
 ject to like punishment, etc., and none other. 
 This act was said by Swayne, J., to be not 
 a penal statute but a remedial one to be 
 construed liberally; U. S. v. Rhodes, 1 Abb. 
 U. S. 28, Fed. Cas. No. 16,151. 
 
 This legislation was substantially replaced 
 by the 14th Amendment which was broader 
 in its scope, manifestly intended to vindi- 
 cate those rights against individual aggres- 
 sion; Kentucky v. Powers, 201 U. S. 1, 26 
 Sup. Ct. 3S7, 50 L. Ed. 633, 5 Ann. Cas. 692. 
 This amendment was finally promulgated as 
 adopted in July, 1S6S (see Fotjbteenth 
 Amendment) and thereafter Congress enact- 
 ed several laws intended to enforce its pro- 
 visions. The first was the act of May 31, 
 1S70. known as the Enforcement Act (sup- 
 plemented by an amending act of February 
 28, 1871). The purpose was to protect negro 
 voters by requiring in sections 1 and 2 that 
 all citizens should be accorded equal facili- 
 ties without distinction of race or color; 
 in sections 3, 4 and 5 for the punishment 
 through federal courts of persons who vio- 
 lated the act ; and in section 6 for punish- 
 ment in like manner of conspiracies to de- 
 feat the elective franchise. There was also 
 provided an elaborate scheme of supervision 
 of all elections, which included members 
 of Congress, through the federal courts, 
 which became R. S. §§ 2011, 2012, 2016, 2017, 
 2021, 2022, 5515 and 5522. The power of 
 Congress to impose this system of super- 
 vision was upheld in Ex parte Siebold, 100 
 U. S. 371, 25 L. Ed. 717; U. S. v. Gale, 109 
 U. S. 65, 3 Sup. Ct. 1, 27 L. Ed. S.77 ; and 
 sections 3 and 4 of the Enforcement Act 
 were held unconstitutional ; U. S. v. Reese, 
 92 U. S. 214, 23 L. Ed. 563; while section 6 
 was, in effect, held unenforceable, as not 
 providing for the punishment of any act 
 punishable under the constitution and laws 
 of the United States; U. S. v. Crnikshank, 92 
 U. S. 542, 23 L. Ed. 5S8. 
 
 The next act in the series was that of 
 April °jQ, 1871, known as the "Ku Klux Act." 
 It was an effort to create both civil and 
 
 criminal liability for the action of individ- 
 uals against individuals; and .e au- 
 thority to the President I the army 
 and navy in cases of d 
 within a state and to suspend th< 
 habeas corpus, and disqualified for jury 
 ice all persons Involved, it :•;-" coi • 
 remarkable section (<Jj making any | 
 liable who could, by reasonable i 
 have prevented any otli- from de- 
 priving individuals of the i lual prol 
 of the laws, and failed to do BO. ThJ 
 was practically rendered ineffective by the 
 construction given by the Supreme l 
 to the power of i to enforce the 14th 
 Amendment by Legislation. Cases in which 
 various provisions of it were held to be un- 
 enforceable in the cases in which it was 
 resorted to are: U. S. v. Harris. 106 
 629, 1 Sup. Ct. 601. 27 L. Ed. 290; Carter v. 
 Greenhow, 114 U. S. 317, 5 Sup. C 
 
 29 L. Ed. 202; Bowman v. Ry. Co., 113 O. B. 
 611, 6 Sup. Ct 101', 29 L. Ed. Idwin 
 v. Franks, 120 U. S. 678, 7 Sup. Ct. 65fl 
 
 30 L. Ed. 766; Holt v. Mfg. Co., 176 V. 8. 
 68, 20 Sup. Ct. 272, 44 L. Ed. 374; GJ 
 Harris. 189 U. S. 475, 23 Sup. Ct. 030, 47 L. 
 Ed. 909. 
 
 The last act of the series was that of 
 March 1, 1875, which was pre-eminently 
 known as the "Civil Rights Act" and con- 
 sisted of five sections. Section 1 provided 
 that all persons within the Jurisdiction of 
 the United States should be entitled to the 
 full and equal enjoyment of the accommo- 
 dations, etc., of inns, public conveyam 
 land or water, theatres, and other places of 
 public amusement; subject only to the condi- 
 tions and limitations established by law and 
 applicable alike to all citizens of whatever 
 race or color, regardless of any previous con- 
 dition of servitude. Section 2 provided for 
 the punishment of any person who should 
 violate the foregoing section, both criminal- 
 ly and by a suit for a penalty. Section :; 
 gave jurisdiction to the federal courts ex- 
 clusively of all offenses against the act, and 
 of suits for a penalty. Section 4 provide.! 
 that no person should be excluded from 
 service as grand or petit juror in any court 
 of the United States or any state, on ac- 
 count of race, color or previous condition 
 of servitude. Section 5 gave to the Su- 
 preme Court a right of review of all cases 
 arising under the act. 
 
 Section 4 was declared constitutional in 
 Ex parte Virginia, 100 I*. S. 339, 25 I 
 676. Sections 1 and 2 were held unconstitu- 
 tional and void in the Civil Rights I 
 109 U. S. 3, 3 Sup. Ct. 18, 27 L. Ed. 835, as 
 not being authorized by either the 13th or 
 14th Amendments. And having been so de- 
 clared unconstitutional, they were not sepa- 
 rable as to their operation in such places as 
 are under the exclusive jurisdiction of the 
 national government and the statute was 
 therefore unconstitutional in its entirety; 
 Butts v. Merchants & Miners Transp. Co.,
 
 CIVIL RIGHTS 
 
 500 
 
 CIVIL RIGHTS 
 
 230 U. S. 126, 33 Sup. Ct 964, 57 L. Ed. 1422; 
 The Trade Mark Cases, 100 U. S. 82, 25 L. 
 Ed. 550. 
 
 The 13th Amendment denounces a status 
 or condition irrespective of the manner or 
 authority by which it is created. The pro- 
 hibitions of the 14th and 15th Amendments 
 are largely upon the acts of the states ; but 
 the 13th Amendment names no party or au- 
 thority, but simply forbids slavery and in- 
 voluntary servitude and grants to Congress 
 power to enforce this prohibition by ap- 
 propriate legislation ; Clyatt v. U. S., 197 U. 
 S. 207, 25 Sup. Ct. 429, 49 L. Ed. 726. Such 
 legislation may be primary and direct in 
 its character ; id. 
 
 In the Civil Rights Cases the court held 
 that although the constitution and statutes 
 of a state may not be repugnant to the 13th 
 Amendment, Congress, by legislation of a di- 
 rect and primary character, may, in order to 
 enforce the amendment, reach and punish 
 individuals whose acts are in hostility to 
 rights and privileges derived from and se- 
 cured by or dependent upon that amend- 
 ment ; Clyatt v. U. S., 197 U. S. 207, 25 Sup. 
 Ct. 429, 49 L. Ed. 726. The power, duty and 
 responsibility to enforce the rights of citi- 
 zens under any of the constitutional amend- 
 ments rests with the state and not with the 
 United States government; Neal v. Delaware, 
 103 U. S. 370, 26 L. Ed. 567. But in Hodges 
 v. U. S., 203 U. S. 1, 27 Sup. Ct 6, 51 L. Ed. 
 65, the 13th Amendment was held not to 
 empower Congress to protect against individ- 
 ual interference (where a conspiracy was 
 alleged to exclude negroes from making 
 contracts to labor). 
 
 Prohibiting intermarriage between white 
 persons and negroes is not interference with 
 civil rights; State v. Gibson, 36 Ind. 389, 10 
 Am. Rep. 42; Plessy v. Ferguson, 163 U. S. 
 537, 16 Sup. Ct. 113S, 41 L. Ed. 256; nor re- 
 quiring separate schools; State v. McCann, 
 21 Ohio St. 210; Ward v. Flood, 48 Cal. 36. 
 17 Am. Rep. 405; People v. Gallagher, 93 
 N. Y. 438, 45 Am. Rep. 232; nor requiring 
 separate accommodations on railroad trains 
 within the state ; Louisville, N. O. & T. Ry. 
 Co. v. State, 66 Miss. 662, 6 South. 203, 5 
 L. R. A. 132, 14 Am. St. Rep. 599 ; id., 133 U. 
 S. 5S7, 10 Sup. Ct. 34S, 33 L. Ed. 784 ; Plessy 
 v. Ferguson, 163 U. S. 537, 16 Sup. Ct. 1138, 
 41 L. Ed. 256 ; nor is the refusal of an inn- 
 keeper or keeper of a place of public amuse- 
 ment or proprietor of a public conveyance 
 to accept certain classes of patrons such an 
 interference with the civil rights of such 
 excluded persons as to call for their con- 
 stitutional protection ; U. S. v. Stanley, 109 
 U. S. 3, 3 Sup. Ct. 18, 27 L. Ed. S35; Miller v. 
 Texas. 153 U. S. 537. 14 Sup. Ct. 874, 38 L. 
 Ed. 812; nor are civil rights denied to a 
 negro because the grand jury which indicted 
 him for murder was purposely composed 
 of white men; Gibson v. Mississippi, 162 U. 
 S. 565, 16 Sup. Ct. 904, 40 L. Ed. 1075; 
 Smith v. Mississippi, 162 U. S. 592, 16 Sup. 
 
 Ct. 900, 40 L. Ed. 10S2. But see Rogers v. 
 Alabama, 192 U. S. 226, 24 Sup. Ct. 257, 48 
 L. Ed. 417, where such discrimination on 
 account of race was held a denial of rights 
 under the 14th Amendment, the objection 
 having been taken in the state court by mo- 
 tion to quash the indictment. 
 
 Congressional inaction is equivalent to a 
 declaration that a carrier may by its regu- 
 lations separate white and negro interstate 
 passengers; Chiles v. Ry. Co., 218 U. S. 71, 
 30 Sup. Ct 667, 54 L. Ed. 936, 20 Ann. Cas. 
 9S0. 
 
 Within the meaning of Civil Rights Acts, 
 federal or state, a barber shop is not a place 
 of public accommodation; Faulkner v. Solaz- 
 zi, 79 Conn. 541, 65 Atl. 947, 9 L. R. A. (N. 
 S.) 601, 9 Ann. Cas. 67; nor a bootblack 
 stand; Burks v. Bosso, 180 N. Y. 341, 73 N. 
 E. 58, 105 Am. St. Rep. 762 ; nor a drug store 
 containing a soda fountain ; Cecil v. Green, 
 161 111. 265, 43 N. E. 1105, 32 L. R. A. 566 ; 
 nor a saloon ; Kellar v. Koerber, 61 Ohio St. 
 388, 55 N. E. 1002; Rhone v. Loomis, 74 
 Minn. 200, 77 N. W. 31, changed by statute 
 Gen. St. Minn. 1913, § 6082; nor a billiard 
 room; Com. v. Sylvester, 13 Allen (Mass.) 
 247; but a barber shop cannot discriminate 
 against a negro; Messenger v. State, 25 Neb. 
 674, 41 N. W. 638. A skating rink has been 
 held a place of amusement within such a 
 state law; People v. King, 110 N. Y. 418, 18 
 N. E. 245, 1 L. R. A. 293, 6 Am. St. Rep. 
 389; otherwise as to one carried on by the 
 owner of the building without state or mu- 
 nicipal license; Bowlin v. Lyon, 67 la. 536, 25 
 N. W. 766, 56 Am. Rep. 355. A race meeting 
 is not; Grannan v. Racing Ass'n, 153 N. Y. 
 449, 47 N. E. 896; but a bowling alley is; 
 Johnson v. Pop Corn Co., 24 Ohio Cir. Ct R. 
 135. 
 
 The Civil Rights Act is in derogation of 
 the common law and must be strictly con- 
 strued ; Grace v. Moseley, 112 111. App. 100 ; 
 and the provision that any "person" who 
 violates its provisions shall be amenable 
 thereto is not restricted to natural persons, 
 but includes corporations ; Johnson v. Pop 
 Corn Co., 24 Ohio Cir. Ct. 135. 
 
 A person operating a place of public re- 
 sort, who claims the right to exclude per- 
 sons indicated by conduct dress, or de- 
 meanor to be members of a disreputable 
 class, is liable for a mistake made in the ex- 
 ercise of that right; Davis v. Power Co., 35 
 Wash. 203, 77 Pac. 209, 66 L. R. A. 802. 
 
 U. S. R. S. § 641, U. S. Comp. Stat. 1901, 
 pp. 520, 521, authorizes the removal of a 
 criminal prosecution from a state to a 
 federal court, wherever the accused is de- 
 nied or cannot enforce in the state courts 
 any right secured to him by any law provid- 
 ing for equal civil rights of citizens of the 
 United States or of all persons within the 
 jurisdiction. But the denial in summoning 
 or impaneling jurors of any equal civil right 
 secured by the federal constitution or laws 
 does not unless authorized by the state con-
 
 CIVIL KIGIITS 
 
 501 
 
 CIYIL1TLR MOHTUUS 
 
 stitution or laws as interpreted by its high- 
 est courts, give a right to such removal; 
 Kentucky v. Powers, 201 U. S. 1, 26 Sup. 
 Ct. 3S7, 50 L. Ed. 633, 5 Ann. Cas. 692, where 
 there was a deliberate exclusion of Republi- 
 cans from a jury selected to try the accused 
 Cor the murder of a Democrat. In that 
 case it was held that, while the decisions of 
 the railed states Supreme Court constru- 
 ing this section had reference to discrimina- 
 tion against negroes because of their race, 
 the decisions were not intended to confine 
 the operation of that Bectiou or of the 14th 
 Amendment to negroes alone, but the rules 
 announced apply equally where discrimina- 
 tion exists as to the white race: id. 
 
 Section 641, U. S. R. S., was repealed by 
 section 297 of the Judicial Code of .March 
 3, 1011, and is re-enacted in the same words 
 (except the substitution of district court 
 for circuit court) in section 31 of that code. 
 
 See Equal Protection of the Law; Privi- 
 leges and Immunities: Fourteenth Amend- 
 ment; Due Process of Law; Removal of 
 Causes. 
 
 CIVIL SERVICE. The Civil Service Act 
 of Congress, Jan, 16, 1SS3, does not delegate 
 legislative power to the President and Civil 
 Service Commissioners; Butler v. White, 83 
 Fed. 578. Under it neither the Civil Serv- 
 ice Commission nor the President, nor both 
 combined, can make any regulations having 
 the effect of law: nor will courts of equity- 
 enforce them. The President can enforce 
 such regulations by the exercise of the power 
 of removal, and if he does not do so, courts 
 of equity will not interfere; Flemming v. 
 Staid, 83 Fed. 940; nor will it enjoin the re- 
 moval of government officers ; White v. Ber- 
 ry, 171 U. S. 366, 18 Sup. Ct 917, 43 L. Ed. 
 199; Morgan v. Nunn, 84 Fed.. 551; Jaedicke 
 v. U. S., 85 Fed. 373, 29 C. C. A. 199; though 
 it may he unjustly or improperly made; nor 
 decide the right of a party to remain in of- 
 fice 1 ; Marshall v. Board of Managers, 201 
 111. 9, 66 N. E. 314. The power of removal 
 is incident to the power of appointment; 
 Flemming v. Stahl, S3 Fed. 940. A provi- 
 sion in a civil service law for the removal of 
 one who is a veteran volunteer fireman only 
 after a hearing, which is not required in 
 the case of one not a veteran, does not 
 contravene the 14th Amendment; Peo 
 Folks. 89 App. Div. 171, S5 N. Y. Supp. 1100. 
 See Officer. 
 
 CIVILIAN. A doctor, professor, or stu- 
 dent of the civil law. 
 
 CIVILITER. Civilly: opposed to crimi- 
 naliter, or criminally. 
 
 When a person does an unlawful act Injurious to 
 another, whether with or without an intention to 
 commit a tort, he is responsible civililr. In order 
 to make him liable criminaliter, he must have in- 
 tended to do the wrong; for it is a maxim, actus 
 non faeit reum nisi mens sit rea. 2 East 104. 
 
 CIVILITER M0RTUUS. Civilly dead. In 
 a state of civil death. 
 
 In New York one sentenced to life impris- 
 onment in the state prison is civiliter mor- 
 tuns; Troup v. Wood, 4 Johns. <'h. (N. Y.) 
 22S; Platner v. Sherwood, G Johns. Ch. (N. 
 Y.i 118. 
 
 CI VITAS. A term In the A: 
 
 land 1 1 B, commonly applied to Wore 
 
 Canterbury and other such places, which 
 are both bishop's sees and the head i 
 Of large districts. Ma it land. Domesday and 
 Beyond 183. See 17 L. Q. R, 274. It was 
 applied by the Romans to the independent 
 tribes or states of Gaul, and then to the 
 chief towns of those tribes. Oxford Diet 
 s. v. City. 
 
 See Crrr. 
 
 CLAIM. A challenge of the ownership of 
 a thing which is wrongfully withheld from 
 the possession of the claimant. Plowd. 359. 
 See Cummings v. Lynn, 1 Dall. (U. S.) 444, 
 1 L. Ed. 215; Willing v. Peters, 12 S. & R, 
 (Pa.) 177. 
 
 In a popular sense, claim is a right to 
 claim; a just title to something in the pos- 
 session or at the disposal of another. Steele 
 v. State. 159 Ala. 9, 48 South. 673. 
 
 The owner of property proceeded against in ad- 
 miralty by a suit in rem must present a claim to 
 such property, verified by oath or affirmation, stat- 
 ing that the claimant by whom or on whose behalf 
 the claim is made, and no other person, is the true 
 and bona fide owner thereof, as a necessary pre- 
 liminary to his making defence; 2 Conkl. Adm. 201- 
 210. 
 
 A demand entered of record of a mechanic 
 or material man for work done or material 
 furnished in the erection of a building, in 
 Pennsylvania and some other states. 
 
 The assertion of a liability to the party 
 making it to do some service or pay a sum 
 of money. See Prigg v. Pennsylvania, 10 
 Pet. (U. S.) 539, 10 L. Ed. 10G0. 
 
 The possession of a settler upon the wild 
 lands of the government of the United 
 States: the lands which such a settler holds 
 possession of. The land must be so marked 
 out as to distinguish it from adjacent lands: 
 Sargeant v. Kellogg. 5 Gilman (111.1 27a 
 Such claims are considered as personalty in 
 the administration of decedents' es 
 Stewart v. Chadwick, 8 la. 463; are proper 
 ts of sale and transfer; Hill v. Smith, 
 Morris (la.) 70; Freeman v. Holliday, Mor- 
 ris (la.) SO; Wilson v. Webster. Morris 
 ( la.) 312, 41 Am. Dec. 230; Stewart v. Chad- 
 wick, 8 la. !•'.:;; Turney v. Saunders, 4 Scam. 
 (111.) 531; the possessor being required to 
 deduce a regular title from the first occu- 
 pant to maintain ejectment: Turney v. 
 Saunders, 4 Scam, (ill.) 531 ; and a sale fur- 
 nishing sufficient consideration for a promis- 
 sory note; Freeman v. Holliday. Morris I la.) 
 SO; Starr v. Wilson, Morris (la.) 4. ,> .S; Pier- 
 son v. David. 1 la. 23. An express pr 
 to pay for improvements made by "claim- 
 ants" is good, and the proper amount to he 
 paid may be determined by the jury ; John- 
 son v. Moulton, 1 Scam. (111.) 532.
 
 CLAIM OF CONUSANCE 
 
 502 CLARENDON, CONSTITUTIONS OF 
 
 CLAIM OF CONUSANCE. An interven- 
 tion by a third person demanding jurisdic- 
 tion of a cause which the plaintiff has com- 
 menced out of the claimant's court. Now 
 obsolete. 3 Bla. Com. 298. See Cognizance. 
 CLAIM PROPERTY BOND. A bond filed 
 by a defendant in cases of replevin and of 
 execution. Upon filing such bond in replev- 
 in the defendant is entitled to a return of 
 the goods by the sheriff. Its use is said to 
 have been long sanctioned by usage in Penn- 
 sylvania; Snyder v. Frankenfield, 4 Pa. Dist. 
 R. 767. It has taken the place in replevin of 
 the writ de proprietate probanda; Weaver 
 v. Lawrence, 1 Dall. (U. S.) 156, 1 L. Ed. 79. 
 Upon giving such bond defendant's title to 
 the goods becomes indefeasible and the 
 plaintiff can only look to the security for 
 the damages which he may recover; 1 Dall. 
 U. S. (4th Ed. by Brightly) 156, 157, note. 
 
 In the case of an execution, if a third par- 
 ty files such bond, the sheriff may at his 
 peril withdraw his levy. 
 
 CLAIMANT. In Admiralty Practice. A 
 person authorized and admitted to defend 
 a libel brought in rem against property; 
 thus, Thirty Hogsheads of Sugar, Bentzon, 
 Claimant v. Boyle, 9 Cra. (U. S.) 191, 3 L. 
 Ed. 701. 
 
 CLAMOR (Lat.). A suit or demand; a 
 complaint. Du Cange; Spelman, Gloss. 
 
 In Civil Law. A claimant. A debt; any 
 thing claimed from another. A proclama- 
 tion; an accusation. Du Cange. 
 
 CLARENDON, ASSIZE OF. A statute 
 (1166) the principal feature of which was 
 an improvement of judicial procedure in the 
 case of criminals. It was a part of the 
 same scheme of reform as the Constitution 
 of Clarendon. See James C. Carter, The 
 Law, etc., 65. 
 
 debts in cases where they had been accustomed to 
 do so, but should leave all lawsuits to the determi- 
 nation of the civil courts. The rigid enforcement of 
 these statutes by the king was unhappily stopped, 
 for a season, by the fatal event of his disputes with 
 Archbishop Becket. Fitz Stephen 27; 2 Lingard 
 59; 1 Hume 382; Wllkins 321; 4 Bla. Com. 422; 1 
 Poll. & M. 430-440, 461 ; 2 id. 196. 
 
 CLASS. A number of persons or things 
 ranked together for some common purpose 
 or as possessing some attribute in common. 
 
 The term is used of legatees; Swinton v. Legare, 
 2 McCord Eq. (S. C.) 440 ; of obligees in a bond ; Jus- 
 tices of Cumberland v. Armstrong, 14 N. C. 284 ; 
 and of other collections of persons ; White v. Dela- 
 van, 17 Wend. (N. Y.) 52; Ellis v. Kimball, 16 Pick. 
 (Mass.) 132; Wheeler v. Philadelphia, 77 Pa. 338; 1 
 Ld. Raym. 708. 
 
 CLASSIFICATION IN STATUTES. As to 
 
 what is proper classification of the subjects 
 of statutes, see Equal Protection of the 
 Law ; Police Powers. 
 
 CLAUSE. A part of a treaty; of a legis- 
 lative act; of a deed; of a will, or other 
 written instrument. A part of a sentence. 
 
 CLAUSULA DEROGATIVA. A clause in 
 a will which provides that no will subse- 
 quently made is to be valid. The latter 
 would still be valid, but there would be 
 ground for suspecting undue influence. Gro- 
 tius. 
 
 CLAUSUM. In Old English Law. Close. 
 Closed. 
 
 A writ was either clausum (close) or apertum 
 (open). Grants were said to be by literce patents 
 (open grant) or literce clauses (close grant) ; 2 Bla. 
 Com. 346. 
 
 A close. An enclosure. 
 
 Occurring In the phrase quare clausum fregit 
 (Rucker v. McNeely, 4 Blackf. [Ind.] 181), it denotes 
 in this sense only realty in which the plaintiff has 
 some exclusive interest, whether for a limited or 
 unlimited time or for special or for general pur- 
 poses; 1 Chit. PI. 174; Austin v. Sawyer, 9 Cow. 
 (N. Y.) 39 ; 6 East 606. 
 
 CLARENDON, CONSTITUTIONS OF. 
 
 Certain statutes made in the reign of Henry 
 II. at a parliament held at Clarendon (A. 
 D. 1164) by which the king checked the pow- 
 er of the pope and his clergy and greatly 
 narrowed the exemption they claimed from 
 secular jurisdiction. 
 
 Previous to this time, there had been an entire 
 separation between the clergy and laity, as mem- 
 bers of the same commonwealth. The clergy, hav- 
 ing emancipated themselves from the laws as ad- 
 ministered by the courts of law, had assumed pow- 
 ers and exemptions quite inconsistent with the good 
 government of the country. 
 
 This state of things led to the enactment referred 
 to. By this enactment all controversies arising out 
 of ecclesiastical matters were required to be deter- 
 mined in the civil courts, and all appeals in spiritu- 
 al causes were to be carried from the bishops to the 
 primate, and from him to the king, but no further 
 without the king's consent. The archbishops and 
 bishops were to be regarded as barons of the realm, 
 possessing the privileges and subject to the bur- 
 dens belonging to that rank, and bound to attend 
 the king in his councils. The revenues of vacant 
 sees were to belong to the king, and goods forfeited 
 to him by law were no longer to be protected in 
 churches or church-yards. Nor were the clergy to 
 pretend to the right of enforcing the payment of 
 
 CLAUSUM FREGIT. See Quare Clau- 
 sum Fregit ; Trespass. 
 
 CLEAN HANDS. It is said that a party 
 seeking the aid of a court of equity must 
 come into court with clean hands. It refers 
 only to wrongful conduct in the particular 
 acts or transactions which raise the equity 
 he seeks to enforce; Trice v. Comstock, 121 
 Fed. 620, 57 C. C. A. 646, 61 L. R. A. 176; 
 West v. Washburn, 153 App. Div. 460, 138 
 N. Y. Supp. 230. 
 
 CLEAR. Free from indistinctness or un- 
 certainty ; easily understood ; perspicuous, 
 plain; free from impediment, embarrassment 
 or accusation. Webster. 
 
 For a clear deed, see Rohr v. Kindt, 3 W. 
 & S. (Pa.) 563, 39 Am. Dec. 53; clear title; 
 Roberts v. Bassett, 105 Mass. 409; clear of 
 expense; 2 Ves. & B. 341; clear of assess- 
 ments; Peart v. Phipps, 4 Yeates (Pa.) 386; 
 clear days ; 14 M. & W. 120 ; 3 B. & Aid. 581. 
 
 CLEARANCE. A certificate given by the 
 collector of a port, in which it is stated that
 
 CLEARANCE 
 
 503 
 
 CLEARING-HOUSE 
 
 the master or commander (naming him) of 
 a ship or vessel named and described, bound 
 for a port named (and having on board 
 goods described, in case the master requires 
 the particulars of his cargo to be stated in 
 such clearance), has entered and cleared his 
 ship or vessel according to law. 
 
 This certificate, or clearance, evidences the right 
 of the vessel to depart on her voyage ; and clearance 
 has therefore been properly defined as a per, 
 to sail. The same term is also used to signify the 
 act of clearing. Worcester, Diet. 
 
 By U. S. R. S. § 4197, the master of any 
 vessel bound to a foreign port shall deliver 
 to the collector of the district from which be 
 sails a sworn manifest of his cargo and its 
 value. To sail without a clearance is pun- 
 ishable by a fine of $500. 
 
 By R. S. § 4200, before a clearance can be 
 granted to any foreign-bound vessel the own- 
 ers, shippers or consignors of the cargo shall 
 deliver to the collector sworn manifests of 
 their parts of the cargo, specify the kind of 
 goods shipped and their value, and the mas- 
 ter of the vessel and the owners, etc., of the 
 cargo sball subscribe an oath as to the for- 
 eign place in which such cargo is intended 
 truly to be landed. 
 
 The collector of the port cannot refuse 
 clearance because a ship contains contra- 
 band ; Northern Pac. R. Co. v. Trading Co., 
 195 U. S. 439, 25 Sup. Ct, 84, 49 L. Ed. 2G9. 
 
 According to Boulay-Paty, Dr. Com. t. 2, 
 p. 19, the clearance is imperatively demand- 
 ed for the safety of the vessel ; for if a ves- 
 sel should be found without it at sea it may 
 be legally taken and brought into some court 
 for adjudication on a charge of piracy. See 
 Ship's Papers. 
 
 CLEARANCE CARD. A letter given to 
 an employe by a railroad company, at the 
 time of bis discharge or end of service, show- 
 ing the cause of such discharge or voluntary 
 quittance, the length of time of service, his 
 capacity, and such other facts as would give 
 to those concerned information of his former 
 employment. Such a card is in no sense a 
 letter of recommendation and in many cases 
 might be of a form and character which the 
 holder would hesitate and decline to present 
 to any person to whom he was making ap- 
 plication for employment; Cleveland, C, C. 
 & St. L. R. Co. v. Jenkins, 174 111. 398, 51 
 N. E. 811, G2 L. R. A. 922, 06 Am. St. Rep. 
 -MiC; with a full note on the question of the 
 duty of employers to give recommendations 
 to employes either discharged or voluntarily 
 quitting. See Blacklist. 
 
 CLEARING-HOUSE. An office where 
 bankers settle daily with each other the bal- 
 ance of their accounts. 
 
 The origin of the system is said to have been in 
 Edinburgh; at least the bankers of that city so 
 ciaim; but the earliest record of one (and that is 
 not clear as to date) is that of London, founded in 
 1775, or possibly earlier. It was started in the ale- 
 house of those times, the general resort of pro- 
 prietors of new enterprises. The system, however, 
 
 increased in usefulness so much as to require rooms, 
 which were procured in Lombard Street, and a 
 system was rapidly developed of exchanging checks 
 and other securities to reduce the amount of actual 
 money required for settlements. In this country 
 such associations were established in New York in 
 1853, LSoston in 1856, Philadelphia, Baltimore, and 
 Cleveland in 1858, Worcester in 1861, Chicago in 1865, 
 and since that date the system has. extended to most 
 of the cities in which there are several bank 
 also exist in the continental countries of Europe. 
 Most of these associations are unincorporated, but 
 in Minnesota there is an act (March 4, 1893) for their 
 incorporation. The Clearing-House Association of 
 New York consists of all the incorporated banks- 
 private bankers not being admitted, as in London. 
 Two clerks from each bank attend at the clearing- 
 house every morning, where one takes a position 
 inside of a counter at a desk bearing the number 
 of his bank, the other standing outside the counter 
 and holding in his hand parcels containing the 
 checks on each of the other banks received the pre- 
 vious day. At the sound of a bell, the outside men 
 begin to move, and at each desk they deposit the 
 proper parcel, with an account of its contents— un- 
 til, having walked around, they find themselves at 
 their own desk again. At the end of this process 
 the representative of each bank has handed to the 
 representatives of every other bank the demands 
 against them, and received from each of the other 
 banks their demands on his bank. A comparison of 
 the amounts tells him at once whether he is to pay 
 into or receive from the clearing-house a balance in 
 money. Balances are settled daily. In London the 
 practice of presenting checks at the clearing-house 
 has been held a good presentment to the banker at 
 law. It is not usual to examine the checks until 
 they are taken to the bank, and if any are then 
 found not good they are returned to the bank which 
 presented them, which settles for such returned 
 checks. In this country when a check is returned 
 not good through the clearing-house, It Is usually 
 again presented at the bank. 
 
 To accomplish this purpose of settling daily bal- 
 ances was the original and still is the principal 
 object of a clearing-house, whatever differences of 
 method or detail may be found in different cities. 
 The mode of proceeding in Philadelphia is described 
 in Crane v. Clearing-House, 32 W. N. C. (P; 
 and Philler v. Yardley, 62 Fed. 615, 10 C. C. A. SOU. 
 25 L. R. A. 824 ; and that of London in 5 Mann. & 
 G. 348, 6 Scott, N. R. 1, 12 L. J. C. P. 113. 
 
 The original purpose of a clearing-house — 
 the exchange of paper payable by the sev- 
 eral banks and the settlement of the daily 
 balances between them — has undergone a 
 gradual but very extensive expansion. In 
 the larger cities they have become to some 
 extent financial regulators and the medium 
 through which in times of financial dis- 
 turbance there is attained co action 
 by the banks of a city. In the panic of 1893, 
 the New York clearing-house issued "clear- 
 ing-house certificates" representing the de- 
 posit of securities; these could be used by 
 the banks to settle clearing-house bala 
 
 Such certificates are held valid, and suit 
 may be brought by tlie clearing-house com- 
 mittee upon notes included in the collateral 
 deposited by a bank for the purpose of tak- 
 ing out certificates; Philler v. Woodfall, 32 
 W. N. C. (Pa.) 1^'.: Philler v. Field, ii:> W. 
 N. C. (Pa.) 1"!»; Philler v. Esler, 29 W. N. 
 C. (Pa.) 258. A clearing-house due bill is 
 an ordinary due bill from a bank "to Banks," 
 and usually stipulates that it is good when 
 both signed and countersigned by duly au- 
 thorized officers, and to be payable only
 
 CLEARING-HOUSE 
 
 504 
 
 CLEARING-HOUSE 
 
 through the clearing-house on the day after 
 its issue. During the financial difficulties 
 above referred to such due bills were used 
 by the banks in payment of checks whenever 
 practicable, being as available as cash for 
 deposit in another bank of the same city. 
 They are held not to be certificates of de- 
 posit but negotiable, and requiring indemni- 
 ty to recover the amount due on them if lost 
 or stolen; Dutton v. Bank, 16 Phila. (Pa.) 
 94. 
 
 A clearing-house association is properly 
 sued in the names of the committee who 
 have the entire control of its securities and 
 business funds; Yardley v. Philler, 58 Fed. 
 74(1. 
 
 The tendency of the decisions upon the 
 rights and liabilities of clearing-houses is to 
 treat them with respect to the customs of 
 the banks as merely instruments of making 
 the exchanges, and not as liable to individu- 
 al depositors or holders of paper for funds 
 which have passed through the clearing- 
 house in the process of exchange between 
 banks. They are not responsible for any- 
 thing except the proper distribution of mon- 
 ey paid to settle balances, their purpose be- 
 ing to provide a convenient place where 
 checks may be presented and balances ad- 
 justed ; German Nat. Bank v. Bank, 118 Pa. 
 204, 12 Atl. 303. When a bank suspended 
 after the morning exchanges but before the 
 payment of the general balance due from it, 
 which was made good by the other banks 
 and applied by the clearing-house to the in- 
 debtedness of' the suspended bank, it was 
 held that the clearing-house was not liable 
 to the holder of a draft on one of the other 
 banks deposited in the suspended bank, be- 
 cause the draft was never in the hands of 
 the clearing-house for collection, nor did its 
 manager hold the proceeds thereof with 
 knowledge of the plaintiff's rights or of the 
 existence of the draft until demand was 
 made upon it; Crane v. Clearing-House, 32 
 W. N. C. (Pa.) 358. 
 
 The rules of a clearing-house have the 
 binding effect of law as between the banks; 
 People v. Bank, 77 Hun 159, 28 N. Y. Supp. 
 407; German Nat. Bank v. Bank, 118 Pa. 
 294, 12 Atl. 303 ; Overman v. Bank, 31 N. J. 
 L. 563; Blatter v. Bank, 35 La. Ann. 251; 
 but do not affect the relations between the 
 payee of a check presented through the clear- 
 ing-house for payment, and the bank on 
 which the check is drawn ; People v. Bank, 
 77 Hun 159, 28 N. Y. Supp. 407. 
 
 The course of business of a clearing-house 
 is based upon the idea that the members are 
 principals (and trusted by each other as 
 such), and not agents of parties not mem- 
 1 ers, and this renders possible the volume of 
 business transacted ; Overman v. Bank, 31 
 N. J. L. 563. 
 
 With respect to the effect of presentment 
 at the clearing-house or failure to demand 
 payment there, it has been held that pres- 
 
 entation to the banker's clerk at the clear- 
 ing-house was a presentation at the place of 
 payment designated in a bill of exchange ; 2 
 Campb. 596; that the failure to present a 
 check at the clearing-house in violation of 
 an imperative custom to do so does not dis- 
 charge the drawer of the check as between 
 the bankers and their customer; 1 Nev. & 
 M. 541 ; and such failure to present is not 
 material if presented in the ordinary way, 
 even if the check was to have been paid if 
 presented at the clearing-house, the latter be- 
 ing merely a substitute for ordinary pres- 
 entation, authorized by custom but not re- 
 quired except as a substitute for the regular 
 mode if that is omitted; Kleekamp v. Meyer, 
 5 Mo. App. 444. Sending notes to a bank 
 through the clearing-house is but leaving 
 them there for payment during banking 
 hours and not a demand at the bank for im- 
 mediate payment ; National Exchange Bank 
 v. Bank, 132 Mass. 147. 
 
 The right of return of paper found not 
 good secured by the rules of the clearing- 
 house is a special provision in compensation 
 for payment without inspection, with an op- 
 portunity for future inspection and recall of 
 the payment. When the opportunity is had 
 and not availed of, the general principles of 
 law intervene to regulate the rights and lia- 
 bilities of the paying bank ; National Bank 
 of North America of Boston v. Bangs, 106 
 Mass. 441, 8 Am. Rep. 349. The return of 
 such paper after its receipt through the 
 clearing-house is not prevented by its having 
 been marked cancelled by mistake; 1 Campb. 
 426; 5 Mann. & G. 348; nor by putting it 
 on a file and entering it in the journal ; Ger- 
 man Nat. Bank v. Bank, 118 Pa. 294, 12 Atl. 
 303 ; nor by failure to return by the time 
 fixed by rule whether caused by mistake of 
 fact ; Manufacturers' Nat. Bank v. Thompson, 
 129 Mass. 438, 37 Am. Rep. 376; Merchants' 
 Nat. Bank v. Bank, 101 Mass. 281, 100 Am. 
 Dec. 120; or not; Boylston Nat. Bank v. Rich- 
 ardson, 101 Mass. 2S7 ; nor in such case 
 if the bank had through mistake given credit 
 to the depositor ; Merchants' Nat. Bank v. 
 Bank, 139 Mass. 513, 2 N. E. 89 ; but a rule 
 of the Chicago clearing-house limiting the 
 time of return was held to constitute a bind- 
 ing contract, and the right to recover back 
 a payment made by mistake and discovered 
 within fifteen minutes was denied and the 
 Massachusetts rule criticised ; Preston v. 
 Bank, 23 Fed. 179. 
 
 When there is no rule and no uniform cus- 
 tom, payment at the clearing-house is provi- 
 sional, to become complete when payment is 
 made in the ordinary course of business, and 
 if not so made to be treated as payment un- 
 der a mistake of fact, and with the same 
 rights of reclamation as if made without a 
 clearing-house; National Exchange Bank v. 
 Bank, 132 Mass. 147. The rules may be 
 waived ; Stuyvesant Bank v. Banking Ass'n, 
 7 Lans. (N. Y.) 197.
 
 CLEARING-HOUSE 
 
 505 
 
 CLERICAL ERROR 
 
 A bank not a member, in sending checks 
 through the clearing-house, is bound by its 
 action under its rules in returning payment 
 made by mistake; id.; but a bank not a 
 member is not bound by the clearing-house 
 rules as to the time of returning checks not 
 good, in case of a check sent by it through a 
 bank which was a member; such a case is 
 governed by the ordinary principles applica- 
 ble to it and not by the clearing-house rules ; 
 Overman v. Bank, 31 N. J. L. 563. 
 
 When the drawee bank received a forged 
 check through the clearing-house as genu- 
 ine and failed to return it or to discover the 
 forgery for several days, the bank which took 
 the check and sent it to the clearing-house 
 could not be held liable for negligence in re- 
 ceiving it from a stranger and sending it 
 through the clearing-house without notice ; 
 Commercial & Farmers' Nat. Bank of Balti- 
 more v. Bank, 30 Md. 11, 9G Am. Dec. 554. 
 
 In London there is also a railway clearing- 
 house. 
 
 See National City Bank v. Bank, 101 N. 
 Y. 595, 5 N. E. 463; 25 L. R. A. 824, note. 
 
 See Insolvent. 
 
 CLEMENTINES. The collection of decret- 
 als or constitutions of Pope Clement V., 
 which was published, by order of John XXIL, 
 his successor, in 1317. 
 
 The death of Clement V., in 1314, prevented him 
 from publishing this collection, which is properly a 
 compilation as well of the epistles and constitutions 
 of this pope as of the decrees of the council of 
 Vienna, over which he presided. The Clementines 
 are divided into five books, in which the matter is 
 distributed nearly upon the same plan as the decre- 
 tals of Gregory IX. See Dupin, Bibliotlieque. 
 
 CLERGY. The name applicable to ec- 
 clesiastical ministers as a class. 
 
 Clergymen were exempted by the emperor Con- 
 fstantine from all civil burdens. Baronius, ad ann. 
 319, § 30. Lord Coke says, 2 Inst. 3, ecclesiastical 
 persons have more and greater liberties than other 
 of the king's subjects, wherein to set down all would 
 take up a whole volume of itself. In the United 
 States the clergy is not established by law. 
 
 CLERGY, BENEFIT OF. 
 Glebgy. 
 
 See Benefit of 
 
 CLERGYABLE. Allowing of, or entitled 
 to, the benefit of clergy {privilegium clcri- 
 cale). Used of persons or crimes. 4 Bla. 
 Com. 371. See Benefit of Clergy. 
 
 CLERICAL ERROR. An error made by a 
 clerk in transcribing or otherwise. This is 
 always readily corrected by the court. An 
 error, for example, in the teste of a fi. fa.; 
 Baker v. Smith, 4 Yeates (ra.) 185; Berthon 
 v. Keeley, id. 205; or in the teste and return 
 of a vend, exp.; or in a certificate of a no- 
 tary ; Schwarz v. Baird, 100 Ala. 154, 13 
 South. 917 ; or where an action is begun by 
 one plaintiff and is afterwards amended by 
 adding additional parties, the entering of 
 judgment in favor of "the plaintiff" instead 
 of "the plaintiffs'' is a clerical error and 
 amendable on appeal; Shoemaker v. Knorr, 
 
 1 Dall. (U. S.) 197, 1 L. Ed. 97; or in writ- 
 ing Dowell for McDowell; Peddle v. IIol- 
 linshead, 9 S. & R. (Pa.) 284. See 8 Co. 162 
 a; Citizens' Bank v. Ear we L 570, 
 
 6 C. C. A. 24; Storke v. Storke, 99 Cal. 821, 
 34 Pac. 339. An error is amendable where 
 there is something to amend by, and this 
 even in a criminal case; Benner v. Frey, 1 
 Binn. (Pa.) 367; 12 Ad. & E. 217; for the 
 party ought not to be harmed by the omi 
 of theclerk; Jack v. Binn. (Pa.) 102; 
 
 even of his signature, if he affixes the 
 McCormick v. Meason, l S. & R. (Pa.) '■>:. 
 Where a clerical error has crept into a de- 
 cree, the court will rectify it, though the de- 
 cree has been passed and entered; II 
 McDonald, 109 U. ' S. 157, 3 Sup. Ct. 13 
 L Ed. 888; but not after the term without 
 notice, especially where the condition of the 
 parties has changed; Wetmore v. Karrick, 
 205 D. S. 141, 27 Sup. Ct. 434, 51 L. Ed. 745. 
 
 CLERICI DE CURSU. See Cursitoe. 
 
 CLERICUS (Lat). In Civil Law. Any 
 one who has taken orders in church, of what- 
 ever rank ; monks. A general term includ- 
 ing bishops, subdeacons, readers, ami 
 tors. Du Cange. Used, also, of those who 
 were given up to the pursuit of letters, and 
 who were learned therein. Also of the 
 amanuenses of the judges or courts of the 
 king. Du Cange. 
 
 In English Law. A secular priest, in op- 
 position to a regular one. Keunett, Paroch. 
 Ant. 171. A clergyman or priest : one in 
 orders. Nullus clericus nisi causidicua (no 
 clerk but what is a pleader). 1 Bla. Com. 17. 
 A freeman, generally. One who was ci 
 with various duties in the king's household. 
 Du Cange. 
 
 CLERICUS MERCATI HOSPITII REGIS. 
 
 The clerk of the market at the king's gate. 
 An honorable office pertinent to the ancient 
 custom of holding markets in the suburbs of 
 the king's court. In early times he witnessed 
 the parties' verbal contracts. At a later 
 date he adjudicated in its prices of com- 
 modities ; he inquired as to all weights and 
 measures; he measured laud; and had the 
 power to send bakers and others to the pil- 
 lory. Inderwick, The King's Peace. 
 
 CLERK. In Commercial Law. A person 
 
 in the employ of a merchant, who attends 
 only to a part of his business, while the mer- 
 chant himself superintends the whole. lie 
 differs from a factor in this, that the latter 
 wholly supplies the place of his principal in 
 respect to the property consigned to him. 
 Pardessus, Droit Comm. n. 3S; 1 Chit. Pr. SO. 
 
 In Ecclesiastical Law. Any individual who 
 is attached to the ecclesiastical state and has 
 submitted to the tonsure. One who has been 
 ordained. 1 Bla. Com. 3SS. A clergyman. 4 
 Bla. Com. 367. 
 
 In Offices. A person employed in an office,
 
 CLERK 
 
 506 
 
 CLOSE 
 
 public or private, for keeping records or ac- 
 counts. 
 
 His business is to write or register, in proper 
 form, the transactions of the tribunal or body to 
 which he belongs. Some clerks, however, have 
 little or no writing to do in their offices: as the 
 clerk of the market, whose duties are confined 
 chiefly to superintending the markets. This is a 
 common use of the word at the present day, and is 
 also a very ancient signification, being derived, 
 probably, from the office of the clericus, who at- 
 tended, amongst other duties, to the provisioning 
 the king's household. See Du Cange. 
 
 A person serving a practising solicitor un- 
 der binding articles in England, for the pur- 
 pose of being admitted to practice as a so- 
 licitor. See Clerkship. 
 
 In New England, used to designate a cor- 
 poration official who performs some of tbe 
 duties of a secretary. 
 
 CLERK OF THE CROWN. An officer 
 wbose duty it is to issue writs for election 
 for members of Parliament, upon the war- 
 rant of the Lord Chancellor and to deliver 
 to the House of Commons the list of mem- 
 bers returned (elected) ; to certify the elec- 
 tion of Scotch and Irish peers ; and to per- 
 form duties formerly performed by the Clerk 
 of the Hanaper. He is Permanent Secretary 
 of the Lord Chancellor's Office, House of 
 Lords. 
 
 CLERK OF THE PEACE. An officer of 
 Courts of Quarter Sessions in England. 
 
 CLERK OF THE TABLE. An official of 
 the British House of Commons who advises 
 the speaker on all questions of order. 
 
 CLERKSHIP. The period which must be 
 spent by a law-student in the office of a prac- 
 tising attorney before admission to the bar. 
 1 Tidd, Pr. 61. Under the present rules he 
 must serve as a clerk to a practising so- 
 licitor under binding articles for from three 
 to five years; Odgers, C. L. 1431. For the 
 earlier history of clerkships at law, see Re- 
 port of Amer. Bar Assoc, 1911 (Section of 
 Leg. Educ). 
 
 CLIENT. In Practice. One who employs 
 and retains an attorney or counsellor to man- 
 age or defend a suit or action to which he 
 is a party, or to advise him about some legal 
 matters. See Attorney-at-Law. 
 
 CLOGGING THE EQUITY OF REDEMP- 
 TION. See Equity of Redemption. 
 
 CLOSE. An interest in the soil. Doctor 
 & Stud. 30; 6 East 154; 1 Burr. 133; or in 
 trees or growing crops. Clap v. Draper, 4 
 Mass. 2G6, 3 Am. Dec. 215 ; Stewart v. Dough, 
 ty, 9 Johns. (N. Y.) 113. 
 
 In every case where one man has a right 
 to exclude another from his land, the law 
 encircles it, if not already inclosed, with an 
 imaginary fence, and entitles him to a com- 
 pensation in damages for the injury he sus- 
 tains by the act of another passing through 
 his boundary — denominating the injurious 
 act a breach of the inclosure; Hamm. N. P. 
 
 151; Doctor & Stud. dial. 1, c. 8, p. 30; 
 Worrall v. Rhoads, 2 Whart. (Pa.) 430, 30 
 Am. Dec. 274. 
 
 In considering the cases in which trespass 
 might be supported for an injury to land (for 
 breaking the close) it is laid down that the 
 term close, being technical, signifies the in- 
 terest in the soil, and not merely an inclo- 
 sure in the common acceptance of that term. 
 It lies, however temporary the tenant's in- 
 terest, and though it be merely in the profits 
 of the soil as vestures terrce or herbagii pas- 
 ture; Co. Litt. 4 6; 5 East 4S0; 6 id. 606; 
 5 T. R. 535; prima tonsura; 7 East 200: 
 chase for warren, etc. ; 2 Salk. 637 ; if it be 
 in exclusion of others ; 2 Bla. Rep. 1150 ; 8 
 M. & S. 499. So it lies by one having a right 
 to take off grass; 6 East 602; or after a 
 tenancy expires, a right to emblements ; 
 Stewart v. Doughty, 9 Johns. (N. Y.) 108 ; or 
 by one having the right to cut timber trees ; 
 Clap v. Draper, 4 Mass. 266, 3 Am. Dec. 
 215. 
 
 Ejectment will not lie for a close; 11 Co. 
 55 ; Cro. Eliz. 235 ; Ad. Ej. 24. See Clatjsum. 
 
 CLOSE COPIES. Copies which might be 
 written with any number of words on a 
 sheet. Office copies were to contain only a 
 prescribed number of words on each sheet. 
 
 CLOSE HAULED. The arrangement of a 
 vessel's sails when she endeavors to make 
 progress in the nearest direction possible to- 
 wards that point of the compass from which 
 the wind blows. 6 El. & Bl. 771; Black, L. 
 Diet. 
 
 CLOSE ROLLS. Rolls containing the rec- 
 ord of the close writs (Uteres clauses) and 
 grants of the king, kept with the public rec- 
 ords. 2 Bla. Com. 346. See Letters Close; 
 Rolls. 
 
 CLOSE SEASON. A time of the year 
 when the taking of game is prohibited by 
 statute. See Fence Month. 
 
 CLOSE WRITS. Writs directed to the 
 sheriff instead of to the lord. 3 Reeve, Hist 
 Eng. Law 45. Writs containing grants from 
 the crown to particular persons and for par- 
 ticular purposes, which, not being intended 
 for public inspection, are closed up and seal- 
 ed on the outside, instead of being open and 
 having the seal appended by a strip of parch- 
 ment 2 Bla. Com. 346 ; Sewall, Sher. 372. 
 
 CLOSED COURT. A term sometimes used 
 to designate the Common Pleas Court of 
 England when only Serjeants could argue 
 cases, which practice persisted until 1S33. 
 
 CLOSING A CONTRACT. An expression 
 used in New York to indicate the settlement 
 or carrying out of a contract. 
 
 CLOTURE (Fr.). The procedure in delib- 
 erative assemblies whereby debate is closed. 
 Introduced in the English parliament in the 
 session of 1882. Wharton. It is generally
 
 CLOTURE 
 
 507 
 
 COCKET 
 
 effected by moving the previous question. 
 See Roberts, Rules of Order §§ 20, 5S a. 
 This motion is not recognized in the senate 
 of the United States. 
 
 CLOUD ON TITLE. See Bill to Quiet 
 Possession and Title. 
 
 CLUB. An incorporated or unincorporat- 
 ed association of persons for purposes of a 
 social, literary, or political nature or the 
 like. The latter is not a partnership; 2 M. 
 & W. 172; 87 L. T. 571. No member be- 
 comes liable as such to pay to the society 
 or any one else any money except the amount 
 required by the rules; id.; [1903] A. C. 139. 
 
 The by-laws of a club constitute a con- 
 tract between the members and the club. 
 A member's resignation, to be effectual, must 
 comply with the by-laws ; Boston Club v. Pot- 
 ter, 212 Mass. 23, 98 N. E. 614, Ann. Cas. 
 1913C, 397. 
 
 A club organized for various sports voted, 
 by a majority, to abolish pigeon shooting; 
 held, that it was within its power; [1900] 
 1 Ch. 4S0. 
 
 See Resignation; Amotion; Liquor Laws. 
 
 CO-ADMINISTRATOR. One who is ad- 
 ministrator with one or more others. See 
 Administrator. 
 
 CO-ASSIGNEE. One who is assignee with 
 one or more others. See Assignment. 
 
 CO-EXECUTOR. One who is executor 
 with one or more others. See Executor. 
 
 CO-RESPONDENT. Any person called 
 upon to answer a petition or other proceeding, 
 but now chiefly applied to a person charged 
 with adultery with the husband or wife, in 
 a suit for divorce, and made jointly a re- 
 spondent to the suit. See Divorce. 
 
 COADJUTOR. The assistant of a bishop. 
 An assistant. 
 
 C0ADUNATI0. A conspiracy. 9 Coke 56. 
 
 COAL NOTE. A species of promissory 
 note authorized by 3 Geo. II. c. 26, §§ 7, 8, 
 which, having these words expressed there- 
 in, namely, "value received iu coals," is to 
 be protected and noted as an inland bill of 
 exchange. 
 
 COAST. The margin of a country bounded 
 by the sea. This term includes the natural 
 appendages of the territory which rise out 
 of the water, although they are not of suffl- 
 cient firmness to be inhabited or fortified. 
 Shoals perpetually covered with water are 
 not, however, comprehended under the name 
 of coast. The small islands situate at the 
 mouth of the Mississippi, composed of earth 
 and trees drifted down by the river, which 
 are not of consistency enough for supporting 
 life, and are uninhabited, though resorted to 
 for shooting birds, form a part of the coast 
 
 COCKET. A seal appertaining to the 
 king's custom-house. Reg. Orig. 192. A 
 scroll or parchment sealed and delivered by 
 
 the officers of the custom-house to merchants 
 as an evidence that their wares are custom- 
 ed. Cowell ; Spelman, ';:« -. Bee 7 
 0. 116. The entry office in the custom-house 
 itself. A kind of bread said I : to be 
 
 hard-baked; sea-biscuit; a measure. See 
 Wastel. 
 
 CODE (Lat Codex, the stock or stem of a 
 tree — originally the board covered with wax, 
 on which the ancients originally 
 body of law established by the legislative 
 authority of the state, and designed to 
 ulate completely, so far as a statute may, 
 the subject to which it relates. 
 
 From the rude beginning, expressed in the 
 derivation of the word, there developed the 
 somewhat diversified signification which it 
 has acquired in jurisprudence. It has 
 used to describe a collection of pre-existing 
 laws arranged and classified into a l< 
 system, or one intended to be such, without 
 the interpolation of new matter, and also a 
 declaration of the law composed partly of 
 such materials as might be at hand from all 
 sources, — statutes, adjudications, customs, — 
 supplemented by such amendments, altera- 
 tions, and additions as seemed to the law- 
 givers to be required to constitute a com- 
 plete system and adapt it to the purpose of 
 its adoption, or promulgation. 
 
 This mixed character, it may probably be 
 asserted with confidence, is essential to the 
 existence of a code as the term is now un- 
 derstood, and has entered more or less into 
 the composition of every body of laws known 
 as such in history- 
 
 The idea of a code involves that of the 
 exercise of the legislative power in its pro- 
 mulgation; but the name has been loosely 
 applied also to private compilations of stat- 
 utes. 
 
 The subject of codes and the kindred topics of 
 legal reform have received great attention from 
 the jurists and statesmen of the present century. 
 Probably no subject in the domain of law has been 
 the occasion of more extended and earnest discus- 
 sion than the relative merits of the Code system as 
 it is understood by jurists, and that which is con- 
 sidered and treated on both sides of the controversy 
 as its antithesis, a body of law partly written and 
 partly unwritten, finding its beginnings in customs 
 gradually ripening into customary law ; seeking 
 later expression in statutes and passing through a 
 period of judicial interpretation and modification 
 by being fitted, as it were, into successive cases, 
 with sufficiently varying facts to produce that flex- 
 ibility which is needed for final crystallization into 
 a body of rules and principles sufficiently well set- 
 tled as to have attained the dignity of a well order- 
 ed system. Of the one the Roman Law is the illus- 
 tration unrivalled in history, as is the English Com- 
 mon Law of the other. While, however, tbi 
 represent two distinct and well defined systems of 
 the development of law, the thoughtful and . 
 tial reader of what is written by the ardent advo- 
 cates of umiug as many of them do that 
 the adoption of the one is the exclusion of the oth- 
 er, may find himself Inclining to the conclusion that 
 in dealing with this as with most juridical ques- 
 tions, an entirely one-sided view will leave much to 
 be desired. It may be permissible to question 
 whether these two systems are essentially distinct 
 and antagonistic types, or different methods employ-
 
 CODE 
 
 508 
 
 CODE 
 
 ed In and essential to the evolution of municipal 
 law as a whole, and of the science of jurisprudence 
 in its widest sense. It Is true that there are record- 
 ed in history proposals to form a code of laws de 
 novo having relation only to the future and disre- 
 garding the past, but this has been properly regard- 
 ed as the visionary dream of the enthusiast rather 
 than the matured conclusion of a judicious law- 
 giver. It is hardly to be questioned that no code 
 has ever taken its place as an instrument of legal 
 administration into which there did not enter as a 
 substantial constituent a body of existing common 
 law, and that every body of Unwritten law on a giv- 
 en subject is tending towards ultimately finding its 
 expression in what is tantamount to a code, wheth- 
 ed called by that name or not. Indeed, if dry tech- 
 nicalities of definition be avoided, it is hardly an 
 exaggeration to say that there are single decisions 
 of English or American judges, such, for example, 
 as Coggs v. Bernard, which may not be inaptly 
 termed a code or codification of the law on the sub- 
 ject to which they relate, and which come to be rec- 
 ognized as such with authority which could hardly 
 be increased by legislative affirmation. The diffi- 
 culty of making a hard and fast line between the 
 two systems is quite well shown by all the attempts 
 to define precisely the word code. A judicious writ- 
 er, after a review of the historical codes, concludes 
 that substantially they are of three kinds; and his 
 classification is not only satisfactory in itself but 
 admirably illustrates what has been said. 
 
 "First. — The classification of statutes of force sys- 
 tematically arranged, according to subject-matter, 
 without amendment, alteration, or interpolation of 
 new law, the only change being in the correction of 
 errors of expression, repetitions, superfluities, and 
 contradictions, compressed into as small a space as 
 possible, which, when done, will leave the laws in 
 letter and in spirit just as they were. 
 
 "Second.— The same as the first in form, but going 
 further and making such amendments as are deem- 
 ed necessary to harmonize and perfect the existing 
 system. 
 
 "Third. — To take a yet greater latitude, and, with- 
 out changing the existing system of laws, to add 
 new laws, and to repeal old laws, both in harmony 
 with it, so that the code will meet present exigen- 
 cies, and so far as possible provide for the future ; 
 and this is real codification." To these statements 
 the writer adds a fourth, "wholly impracticable 
 and even visionary," which is "to disregard at will 
 existing laws, and make a system substantially 
 new," such as the author deems best and wisest. 
 Paper of Judge Clark, Rep't Ga. St. Bar Ass'n, 1890. 
 
 There is unquestionably a strong tendency to- 
 wards codification in a general sense, which mani- 
 fests itself in the tendency to general revisions of 
 federal and state statutes, the adoption of codes of 
 procedure by name in several of them, and in fact 
 though not in name in many others, the codes of 
 India, and not the least in the growing interest in 
 an active discussion of the subject. If this interest 
 leads to action wisely tempered with a due regard 
 for the proper functions of written and unwritten 
 law, and freedom from extreme views and the effort 
 to accomplish the impossible task of reducing all 
 law to the unyielding forms of statutory enactment, 
 it will undoubtedly be fruitful of good results. 
 
 When it is considered how rapidly statutes accu- 
 mulate as time passes, it is obvious that great 
 convenience will be found in having the statute law 
 in a systematic body, arranged according to sub- 
 ject-matter, instead of leaving it unorganized, scat- 
 tered through the volumes in which it was from 
 year to year promulgated. Revision to this extent 
 is very frequent, and is what is usually accomplish- 
 ed in the Revised Statutes of many states which are 
 inartificially termed codes. Of this general charac- 
 ter were the Revised Statutes of the United States; 
 infra. When the transposition of the statutes from 
 a chronological to a scientific order is undertaken, 
 more radical changes immediately propose them- 
 selves. These are of two classes: first, amendments 
 for the purpose of harmonizing the inconsistencies 
 which such an arrangement brings to notice, and 
 supplying defects; second, the Introduction into 
 
 the system of all other rules which are recognized 
 as the unwritten or common law of the state. The 
 object of the latter class of changes is to embody ia 
 one systematic enactment all that is thenceforth to 
 be regarded as the law of the land. It is this at- 
 tempt which is usually intended by the distinctive 
 term codification. 
 
 The first two of the questions thus indicated may 
 be deemed as settled, by general concurrence, in 
 favor of the expediency of such changes; and the 
 process of the collection of the statute law in one 
 general code, or in a number of partial codes or 
 systematic statutes, accompanied by the amend- 
 ments which such a revision invites, is a process 
 which for some years has been renovating the laws 
 of England and the United States. Although at 
 the same time something has been done, especially 
 in this country, towards embodying in these statutes 
 principles which before rested in the common or 
 report law, yet the feasibility of doing this com- 
 pletely, or even to any great extent, must be deemed 
 an open question. It has been discussed with great 
 ability by Bentham, Savigny, Thibaut, and others. 
 It is undeniable that, however successfully a code 
 might be supposed to embody all existing and de- 
 clared law, so as to supersede previous sources, it 
 cannot be expected to provide prospectively for all 
 the innumerable cases which the diversity of affairs 
 rapidly engenders, and there must soon come a time 
 when it must be studied in the light of numerous 
 explanatory decisions. 
 
 Real codification involves the most Intimate and 
 exhaustive knowledge not only of the statute law 
 to be included, but also of the judicial interpreta- 
 tion and construction of it, and from the moment 
 of the adoption of a code it begins to be the subject 
 of a new series of decisions which are required to 
 interpret, modify, and explain it and adapt it to 
 modern conditions and the facts of cases of new im- 
 pression, as is and always has been the case with 
 respect to the adaptation of the ancient rules of 
 the common law to modern conditions. In doing 
 this the necessity for and opportunity of judicial 
 legislation are infinite, and with the multiplicity of 
 courts and jurisdictions the difficulties of preserv- 
 ing a system founded on reason are far greater than 
 they were even a very few years ago. And this 
 consideration is strongly urged in favor of the code 
 system. On the other hand, that the law of master 
 and servant, which was founded on such relations 
 as the coachman and the blacksmith's striker, 
 should have been applied with so little friction to 
 the railroad and the factory, is hardly less wonder- 
 ful than the development of the common carrier of 
 the post road and van to the telephone company, 
 and these rapid transformations may serve as the 
 basis of an argument that no civil code can be 
 framed with sufficient wisdom to provide for the 
 constantly changing conditions of life and business. 
 
 In addition to the considerations herein mentioned 
 as bearing upon the subject, Lord Chief Justice 
 Russell, in his address before the American Bar 
 Association (Report 1896), in disapproving of the 
 proposal to codify international law, mentions and 
 illustrates a very fundamental objection to the 
 codification of branches of the law not yet definitely 
 reduced to fixed rules. His observations approach 
 very nearly the suggestion of a striking and effec- 
 tive limitation of the extent to which codification 
 should go beyond the scientific revision of statute 
 law, and in the direction of including law settled by 
 decision and not by statute. Some branches of the 
 law are admirably adapted to complete codification, 
 some others are not yet, and others again by their 
 nature never can or will be. 
 
 Judge Redfield points out clearly the well known 
 objections to codification: "'This is one of the great 
 excellencies of the unwritten 'aw above a written 
 code. The general principles of the former are al- 
 lowed to embrace new cases as they arise, without 
 regard to the enumerations already made under it ; 
 while the latter having been reduced to formal 
 definitions, necessarily excludes all cases not antic- 
 ipated at the time these definitions were made." 18 
 Amer. L. Reg. N. S. 185. On the other hand it is 
 said that the opposition thereto of many English
 
 CODE 
 
 509 
 
 CODE 
 
 lawyers "is supported, If not Justified, by the fear 
 that the courts would put a narrow construction on 
 the articles of a Code." 14 L. Q. R. 9. 
 
 "However much we may codify the law into a 
 series of seemingly self-sufficient propositions, those 
 propositions will be but a phase in a continuous 
 growth. To understand their growth fully, to know 
 how they will be dealt with by judges trained in 
 the past which the law embodies, we must ourselves 
 know something of that past. The history of what 
 the law has been is necessary to the knowledge of 
 what the law la." O. W. Holmes, The Common 
 Law, 27. 
 
 See 2 Sel. Essays in Anglo-Amer. Leg. Hist, by 
 Charles M. Hepburn, on the Historical Develop- 
 ment of Code Pleading (1897). 
 
 The discussions on this subject have called atten- 
 tion to a subject formerly little consider! d, but 
 which is of fundamental importance to the success- 
 ful preparation of a code— the matter of statutory 
 expression. There is no species of composition 
 which demands more care and precision than that 
 of drafting a statute. The writer needs not only to 
 make his language intelligible, he must make it in- 
 capable of misconstruction. When it has passed 
 to a law, it is no longer his Intent that is to be con- 
 sidered, but the intent of the words which he has 
 used ; and that intent is to be ascertained under 
 the strong pressure of an attempt of the advocate 
 to win whatever possible construction may be most 
 favorable to his cause. The true safeguard is found 
 not in the old method of accumulating synonyms 
 and by an enumeration of particulars, but rather — 
 as is shown by those American codes of which the 
 Revised Statutes of New York and the revision of 
 Massachusetts are admirable specimens— by concise 
 but complete statement of the full principle in the 
 fewest possible words, and the elimination of de- 
 scription and paraphrase by the separate statement 
 of necessary definitions. One of the rules to which 
 the New York revisers generally adhered, and 
 which they found of very great importance, was to 
 confine each section to a single proposition. In this 
 way the intricacy and obscurity of the old statutes 
 were largely avoided. The reader who wishes to 
 pursue this interesting subject will find much that 
 Is admirable in Coode's treatise on Legislative Ex- 
 pression (Lond. 1845) (reprinted in Brightly's Pur- 
 don's Digest, Penna.). The larger work of Gael 
 (Legal Composition, Lond. 1S40) is more especially 
 adapted to the wants of the English profession. 
 
 Great Britain. There has not been in 
 England any general codification in the mod- 
 ern sense. 
 
 There were some early English so-called 
 oodes which were of the former character. 
 The first code in England appears to have 
 been about the year 600 by Athelbert, king 
 of the Kentings. His laws have come down 
 to us only in a copy made after the Norman 
 Conquest. They consist of ninety brief sen- 
 tences. In the end of the 7th century the 
 west Saxons had written laws, — the laws 
 of Ine. The next legislator is Alfred the 
 Great, about two centuries later. Later 
 came the code of Cnute. 1 Social England 
 1G5. 
 
 These are merely of historical interest. 
 But in recent years there has been in Eng- 
 land as elsewhere an interest in the subject 
 of the arrangemeut, classification, and sim- 
 plification of the law which found expres- 
 sion not only in words but in legislative 
 action. The necessity for some reform, and 
 the conditions which have forced the sub- 
 ject upon the attention of the English Bar 
 and Parliament, are well expressed by Mr. 
 
 Crackanthorpe in his address before the 
 Amur. Bar Assoc. (1896): 
 
 "We have in our libraries a number of mono- 
 graphs, dealing with the subheads of Law in the 
 most minute detail— books on Torts and Contracts, 
 on Settlements and Wills, on Purchases and 
 on Specific Performance, on Negotiable ! 
 ments, and so forth. We have also many valuable 
 compendia, or institutional treatises, dealing with 
 the Law as a whole. Each and all of these, how- 
 ever, bear witness to the disjointed character of our 
 Jurisprudence. The numerous monographs overlap 
 and jostle each other, like so many rudderless boats 
 tossing at random on the surface of a wind- 
 lake, while the institutional treatises, in their en- 
 deavor to be exhaustive, fail in point of logical ar- 
 rangement, just as a vessel overladen with a 
 cargo fails to get it properly stowed away in the 
 hold. Some day, perhaps, we shall produce a Corpus 
 Juris which will reduce our legal wilderness to or- 
 der, and, by grubbing up the decayed trees, enable 
 us to discern the living forest. We have already di- 
 gested with success portions of our civil law, nota- 
 bly that relating to bills of exchange and a part of 
 that relating to partnership and trusts. These ex- 
 periments are likely to be renewed from time to 
 time, and I doubt not that ultimately we shall have 
 a civil code as complete as that which has just been 
 promulgated in Germany. At present we have not 
 even a criminal code such as you have In the State 
 of New York and as is to be found in most conti- 
 nental countries, all that has been done in that di- 
 rection being to pass five consolidating statutes 
 dealing with larceny and a few other common of- 
 fences." 
 
 In addition to those mentioned the partial 
 codes thus far adopted in England Include 
 the Bills of Sale Act, the Employers' Lia- 
 bility Act, and others, and the India code 
 is the result of a very successful effort to 
 codify specific titles of the common law. 
 and it is now constantly referred to in 
 common-law jurisdictions as the best con- 
 sidered expression of the rules of the com- 
 mon law on subjects covered by it at the 
 time of its adoption. In addition to the 
 partial or special English codes referred to. 
 the course which the discussion upon codi- 
 fication has taken in that country has led 
 to the systematic collection and revision of 
 statutes upon particular subjects. Under 
 the direction of Lord Cairns, the statutes of 
 England from 1 Henry III. have boon sys- 
 tematically revised by a committee, and 
 published as the "Revised Statutes. - ' 
 
 In other British dependencies there have been 
 movements in the direction of codification more 
 pronounced in some instances than those in Eng- 
 land. In Hong Kong and at the Straits Settlements 
 codes of civil procedure were adopted on the lines 
 of the New York code, which was also utilized in 
 the Indian code. 
 
 The English Judicature Acts of 1873 and 1S73 ac- 
 complished many of the reforms in the line of sim- 
 plification. Its chief merit was the fusion of law 
 and equity. 
 
 United States. In this country the sub- 
 ject has received no less attention and has 
 presented obstacles of less magnitude. I 
 
 and revisions have been enacted as follows: 
 The Revision of Federal Statutes in 1873, 
 which went into effect June 22, 1874, was 
 by act of congress declared to constitute 
 the law of the land; the pre-existing laws 
 were thereby repealed, and ceased to be of
 
 CODE 
 
 510 
 
 CODE 
 
 effect. By subsequent acts of congress, cer- 
 tain errors in this revision were corrected. 
 A new edition of the Revision of 1S73 was 
 authorized by acts of March 2, 1877, and 
 March 9, 1878; this is not a new enact- 
 ment, but merely a new publication; it 
 contains a copy of the Revision of 1873, with 
 certain specific alterations and amendments 
 made by subsequent enactments of the 
 43d and 44th congresses, incorporated ac- 
 cording to the judgment and discretion of 
 the editor, under the authority of the acts 
 providing for his appointment. These alter- 
 ations, or amendments, were merely indi- 
 cated by italics and brackets. The act of 
 March 9. 1878, provides that the edition of 
 1878 shall be legal evidence of the laws 
 therein contained in all the courts of the 
 United States, and of the several states and 
 territories, "but shall not preclude refer- 
 ence to, nor control, in case of any discrep- 
 ancy, the effect of any original act as passed 
 by congress since the first day of December, 
 1873." 
 
 The supplement of 1SS1 is official to a lim- 
 ited extent. The provisions in regard to it 
 are as follows: "The publication herein ap- 
 thorized shall be taken to be prima facie 
 evidence of the laws therein contained in 
 all the courts of the United States, and of 
 the several states and territories therein; 
 but shall not preclude reference to, nor 
 control, in case of any discrepancy, the ef- 
 fect of any original act as passed by con- 
 gress : Provided, that nothing herein contain- 
 ed shall be construed to change or alter any 
 existing law ;" 21 Stat. L. 388. See Wright 
 v. U. S., 15 Ct. CI. 80, where the subject is 
 explained by Richardson, J., one of the com- 
 pilers. Volume I, Supplement to the Re- 
 vised Statutes, contains all the permanent 
 general laws enacted from the passage of 
 the Revised Statutes in 1874, to and includ- 
 ing the fifty-first congress, which expired 
 in 1891, and supersedes Vol. I., prepared 
 under resolution of June 7. 1S80. The pub- 
 lication is prima facie evidence of the laws 
 therein contained in all of the courts of the 
 United States. Vol. II. of the Supplement 
 contains the general laws of the fifty-second 
 and subsequent congresses. 
 
 The laws of the United States relating to 
 the judiciary were enacted into the Judicial 
 Code, March 3, 1911, and went into effect 
 January 1, 1912; those relating to crimes 
 were enacted into the Criminal Code, March 
 4, 1909, and went into effect January 1, 1910. 
 
 Colonial Codes. Of these there were sev- 
 eral adopted in the colonies prior to the 
 Revolution. 
 
 In 1665 a code prepared by Lord Chan- 
 cellor Clarendon, called the "Duke's Laws," 
 was promulgated and went into operation 
 at Long Island and West Chester, New 
 York. Afterwards its provisions slowly 
 made their way in New York and the other 
 provinces. 
 
 It was an attempt to state the law relat- 
 ing to the rights of persons and property, 
 and of procedure both civil and criminal. 
 
 The Massachusetts colony, in March, 1634, 
 appointed a committee to revise the law. 
 Other committees were appointed in 1635 
 and 1637. Maryland adopted a code in 1639. 
 In Massachusetts in 1641, a code of laws 
 was adopted which was called "The Liber- 
 ties of the Massachusetts Colony in New 
 England." Connecticut adopted a code in 
 1650, chiefly copied from the Massachusetts 
 code. Virginia appears to have adopted a 
 body of laws in 1611, and in 1656 their laws 
 were reduced into one volume. 
 
 State Codes. New York is the pioneer in 
 the work of codification. In that state the 
 first act relating to procedure after the or- 
 ganization of state government was passed 
 March 16, 1778. Various other acts were 
 passed between 1801 and 1S13. In 1813 there 
 was a general revision of the law, and the 
 subject of practice of the law. In 1828 the 
 revisers collected into one act the various 
 provisions relating to practice in all the 
 courts which was made a part of the Re- 
 vised Statutes. It is said that this part of 
 the Revised Statutes constituted the first 
 code of civil procedure in New York. It 
 embraced nearly all the practice in all the 
 courts and has been the basis of subsequent 
 code revision. In 1848 the "Code of Pro- 
 cedure" was adopted. David Dudley Field, 
 the eminent writer on this subject, had be- 
 gun his work on law reform in 1839. In 
 1848 a commission of which he was chair- 
 man produced the "Code of Procedure," 
 containing 391 sections, which was adopted 
 in that year. This code was largely amend- 
 ed in 1849, and has received frequent amend- 
 ments at various times since that year. 
 
 The laws of Pennsylvania were extensive- 
 ly revised in 1S33-1836, upon the Report of 
 Commissioners appointed by the legislature, 
 William Rawle, Joel Jones and Thomas I. 
 Wharton. 
 
 Codification has proceeded in many states, 
 especially in procedure. The list of states 
 cannot be given here. 
 
 The enactment of uniform laws on special 
 branches of the law, in many states and 
 in England, is a movement towards codifica- 
 tion upon proper lines. The act on Ne- 
 gotiable Instruments has been passed in 
 nearly all the states ; the Warehouse Re- 
 ceipt Act, the Sales Act, Bills of Lading 
 Act and the Stock Transfer Act have been 
 passed in many states. 
 
 In Louisiana, the civil law prevails and 
 there are complete codes framed there- 
 under. One feature of the Louisiana code 
 should be carefully noted. Art. 21 declares 
 that "in all civil matters where there is no 
 express law, the judge is bound to proceed 
 and decide according to equity. To decide 
 equitably an appeal is to be made to natural 
 law and reason, or received usages, where
 
 CODE 
 
 511 
 
 code 
 
 positive law is silent." This code was adopt- 
 ed in 1824 and took effect in 1825, the re- 
 vision of 1870 being the same code, with the 
 slavery provisions omitted, and with such 
 amendments as had previously been made. 
 It is said that the power above quoted has 
 never been exercised except to furnish a 
 remedy or mode of procedure. 
 
 Foreign Countries. On the continent of 
 Europe the Bystems of law are generally 
 founded upon the civil Law, and each coun- 
 try has its own code, which is usually an 
 adaptation in whole or in part of Roman 
 Law. These codes are different in char- 
 acter, falling within sometimes one and 
 sometimes another of the classes above enu- 
 merated, as they were intended to be scien- 
 tific collections and classifications of ex- 
 isting law or to exclude new legislation. 
 
 The modern codes of Europe were pre- 
 ceded by periods of codification, such as 
 that which Maine designates the "era of 
 codes," in which, throughout the world, so 
 far as the sphere of Roman and Hellenic 
 influence extended, there appeared codes of 
 the class of which The Twelve Tables is the 
 conspicuous example; Maine, Anc. L. 2, 13; 
 and the many codes of the Middle Ages 
 based upon Roman law modified by local 
 customs. There were also a great number 
 of codes of maritime law, which in its na- 
 ture was, and still is, well adapted to this 
 exact form of expression, many of which are 
 collected in the Black Book of the Admiral- 
 ty, which has been said to contain all mari- 
 time codes known at the time. Below are 
 briefly referred to the best known codes, 
 ancient and modern. 
 
 Amat.piiitan Tahee. Amalphi, on the 
 Adriatic Sea, is said to have had a Mari- 
 time Court in the 10th century presided 
 over by the consuls of the sea. A manu- 
 script containing the ordinances of the Mari- 
 time Court of Amalphi was discovered in 
 the Imperial Library at Vienna in 1843. 
 And has been called by that name. Its date 
 is the 11th century. Printed in Black Book 
 of the Admiralty. Vol. TV. See The Scotia, 
 14 Wall. (U. S.) 170, 20 L. Ed. S22. 
 
 Austrian. The Civil Code was promulgat- 
 ed July 7, 1810. The first part of it was 
 published and submitted to the Universities 
 and the courts of justice, and some parts 
 having been found wholly unsuited to the 
 purpose, were by his successor abrogated. 
 It is founded in a great degree upon the 
 Prussian. The Penal Code (1S52) is said to 
 adopt to some extent the characteristics of 
 the French Penal Code. 
 
 The civil code originated In an ordinance Issued 
 by Maria Theresa in 1753, the avowed objects being 
 to provide for uniformity of the law in the prov- 
 inces and digest the existing law. The result was 
 unsatisfactory and another commission authorized 
 Counsellor Harten to construct a code, of which the 
 conditions prescribed are quite worthy of repeti- 
 tion. They were: 1. To abstain from doctrinal 
 development. 2. To have in view contestations of 
 the most frequent occurrence. 3. To be clear in ex- 
 
 pression. 4. To be governed by natural equity 
 rather than the principles of the Roman Law. 
 5. To simplify the laws and to refrain from too 
 much subtlety in details. 
 
 Bukgim.ian. The Lex Romana Burgun- 
 dionum seems to be the law-book that Gun- 
 dobad promised to his Roman subjects. He 
 died in 516. They were Bast Gern 
 tered among the Roman proyincii 
 in it were taken from the three Roman 
 codices, from the current abridgments of im- 
 perial constitutions and from the works of 
 Cains and Paulus. Little that is good has 
 been said of it. Maitland, in 1 Sel. Essays 
 in Anglo-Amer. Leg. Hist, l i. 
 
 -olato nEL Mare. A code of mari- 
 time law of high antiquity and great celeb- 
 rity. 
 
 A collection of the customs of the sea observed 
 in the Consular Court of Barcelona. It received 
 many additions and acquired the name of the "Con- 
 sulate" early In the loth century. The Book of the 
 Consulate was printed at Barcelona in the Catalan 
 tongue In 149-1 and was drawn up by the notary of 
 the Consular Court for the use of the Consuls of 
 the sea at Barcelona. It dates back to the 11th 
 century. T. C. Mears in Roscoe, Adm. Jur. (3d 
 ed.) ; Sir Travers Twiss, In 2 Black Book of Adm. 
 Lord Mansfield quotes from it as containing a valu- 
 able body of maritime law; 2 Burr. SS9. Lord 
 Stowell refers to it in 1 C. Rob. 43, and 1 Dods. 116. 
 The edition of Pardessus, in his Collection de Lois 
 Maritimes (vol. 2), Is deemed the best. There Is 
 also a French translation by Boucher, Paris, 180S. 
 See also, Reddie, Hist, of Mar. Com. 171 ; Marvin's 
 Leg. Bibl.; J. Ducr, Ins.; 7 N. A. Rev. 330. 
 
 China. Ta Ching Lu Li (literally, Stat- 
 ute Laws and Usages of the Great Ching 
 Dynasty), generally known as the Penal 
 Code. Compiled in 1647. A remarkable col- 
 lection of imperial proclamations, phi!' 
 cal dissertations, positive laws and proce- 
 dure both civil and penal from remotest 
 times. There is an English translation by 
 G. T. Staunton, 1810, London. 
 
 Egypt. Code of International Tribunals 
 of "Mixed Courts." See Mixed Tkibunals. 
 These are codes of substantive law and pro- 
 cedure in civil and criminal matters closely 
 following the Code Napoleon. See "The Law 
 Affecting Foreigners in Egypt" by J. H. 
 Scott, 1907, London ; Hertslet, Commercial 
 Treaties, vol. XIV, p. 303. 
 
 French Codes. The chief French codes 
 of the present day are five in number, some- 
 times known as Lcs Cinq Codes. They were 
 in great part the work of Napoleon, and the 
 first in order bears his name. They are all 
 frequently printed in one duodecimo vol- 
 ume. These codes do not embody the whole 
 French law, but minor codes and a number 
 of scattered statutes must also be resorted 
 to upon special subjects. 
 
 Code Civil, or Code Napoleon, is composed 
 of thirty-six laws, the first of which was 
 passed iu 1S03 and the last in 1S04, which 
 united them all in one body, under the 
 name of Code Civil des Francois. 
 
 The first steps towards Its preparation were taken 
 In 1793, but it was not prepared till some years sub- 
 sequently, and was finally thoroughly discussed in
 
 CODE 
 
 512 
 
 CODE 
 
 all its details by the Court of Cassation, of which 
 Napoleon was president and in the discussions of 
 which he took an active part throughout. In 1807 a 
 new edition was promulgated, the title Code Napo- 
 leon being substituted. In the third edition (1S16) 
 the old title was restored ; but in 1852 (the Second 
 Empire) it was again displaced by that of Napoleon 
 and after the Republic came in, in 1870, it again 
 became the Code Civil. 
 
 Under Napoleon's reign it became the law of Hol- 
 land, of the Confederation of the Rhine, Westphalia, 
 Bavaria, Italy, Naples, Spain, etc. It has under- 
 gone great amendment by laws enacted since it was 
 established. It is divided into three books. Book 1, 
 Of Persons and the enjoyment and privation of 
 civil rights. Book 2, Property and its different 
 modifications. Book 3, Different ways of acquiring 
 property. Prefixed to it is a preliminary title, Of 
 the Publication, Effects, and Application of Laws in 
 General. 
 
 One of the most perspicuous and able commenta- 
 tors on this code is Toullier, frequently cited in this 
 work. 
 
 There is an English translation by Cachard and a 
 later one by Wright. 
 
 Writing from the standpoint of a common-law 
 lawyer, James C. Carter (the Law, etc., 303) refers 
 to the Code Napoleon, so far as establishing a sys- 
 tem of law certain, easy to be learned and easy to 
 be administered, as a failure, citing Amos, An 
 English Code, as holding the same view. For a his- 
 tory of it, see 40 Amer. L. Rev. 833, by U. M. Rose ; 
 49 Amer. L. Reg. (o. s.) 127, by W. W. Smithers. 
 
 Code de Procedure Civil. That part of the 
 code which regulates civil proceedings. 
 
 It is divided into two parts. Part First consists of 
 five books: the first of which treats of justices of 
 the peace; the second, of inferior tribunals; the 
 third, of royal (or appellate) courts; the fourth, of 
 extraordinary means of proceeding; the fifth, of 
 the execution of judgments. Part Second is divided 
 into three books, treating of various matters and 
 proceedings special in their nature. 
 
 Code de Commerce. The code for the reg- 
 ulation of commerce. 
 
 This code was enacted in 1807. Book 1 is entitled, 
 Of Commerce in General. Book 2, Maritime Com- 
 merce. The whole law of this subject is not em- 
 bodied in this book. Book 3, Failures and Bank- 
 ruptcy. This book was very largely amended by 
 the law of 28th May, 1838. Book 4, Of Commercial 
 Jurisdiction, — the organization, jurisdiction and pro- 
 ceedings of commercial tribunals. This code is, 
 in one sense, a supplement to the Code Napoleon, 
 applying the principle of the latter to the various 
 subjects of commercial law. Sundry laws amend- 
 ing it have been enacted since 1807. Pardessus is 
 one of the most able of its expositors. See Goi- 
 rand, Code of Commerce. 
 
 Code d' Instruction Criminelle. The code 
 regulating procedure in criminal cases, tak- 
 ing that phrase in a broad sense. 
 
 Book 1 treats of the police; Book 2, of the admin- 
 istration of criminal justice. It was enacted in 
 1808 to take effect with the Penal Code in 1811. 
 
 Code Pe'nal. The penal or criminal code. 
 
 Enacted in 1810. Book 1 treats of penalties In 
 criminal and correctional cases, and their effects ; 
 Book 2, of crimes and misdemeanors, and their 
 punishment ; Book 3, offences against the police 
 regulations, and their punishment. Important 
 amendments of this code have been made by subse- 
 quent legislation. 
 
 Code iliLrrAmE. The military code, sub- 
 stantive and procedural, for the army. Pro- 
 mulgated in 1857. 
 
 There is also a Code Forestier; and the 
 name code has been inaptly given to some 
 private compilations on other subjects. 
 
 Gentoo Code. A translation of the laws of 
 the Hindus made during the administration 
 of Warren Hastings as Governor-General of 
 India, and prior to the translation of the In- 
 stitutes of Alanu. 
 
 The formulation ot Hindu law in those institutes 
 (q. v. supra) had the same effect in India as had 
 always resulted from the written expression of the 
 law. There was gradually formed a new body of 
 law consisting of decisions and opinions of learned 
 men upon the construction of written law closely 
 resembling the body of law which was engrafted 
 upon the Institutes of Justinian. The translation 
 of those laws in the Gentoo code was followed by a 
 further digest under the authority of the English 
 government, so that a very complete body of Hindu 
 law grew up, which discloses a system of procedure 
 resembling in a marked degree that of the present 
 day, comprising, — a complaint, a summons or cita- 
 tion, an appearance, a hearing of both parties, the 
 presence of attorneys, and a law of evidence and 
 method of examining witnesses. 
 
 There seems also to have been In India in very 
 early times a system of natural arbitration by 
 neighbors, probably the earliest effort at an admin- 
 istration of justice and resembling the ancient coun- 
 ty court of the Saxons. See Manu, infra. 
 
 German Code. In the current which swept 
 over Europe during the sixteenth century, 
 substituting, as Professor Sohm phrases it, 
 "the revived spirit of antiquity for mediaeval 
 conceptions and ideas," Germany participat- 
 ed in the changes which took place in all de- 
 partments of science. Then the Roman law 
 was "received" in that country, and from 
 that time it has been a controlling factor in 
 the jurisprudence of the countries which 
 form the German Empire. In certain territo- 
 rial limits over which the Prussian Land- 
 recht (see Prussian Code) held sway "the 
 formal validity of the Corpus Juris Civilis 
 has been expressly set aside," but even there 
 "the force of Roman principles of law has 
 nevertheless remained substantially unim- 
 paired within large departments of German 
 jurisprudence." Particularly is the science 
 of the Roman private law imbedded in the 
 German jurisprudence, and indeed the exist- 
 ence of law as a science in Germany dates 
 from the introduction of the Roman law. 
 There were no preconceived ideas with which 
 to conflict, and it was accepted by a national 
 intellect unprejudiced by any preconceived 
 ideas. See Prussian Code, infra. 
 
 The completion of twenty-five years of the 
 life of the Empire has been made the occa- 
 sion of the construction and promulgation of 
 a new German code which has been in the 
 course of preparation for several years. It 
 is an example for the most part of anteced- 
 ent laws, though of an arrangement novel 
 in various respects. The civil code, having 
 passed the Reichstag and received the ap- 
 proval of the emperor, was duly promulgated 
 August 19, 1896, to go into effect January 1, 
 1900, at the same time with other special 
 codes, including those of Civil Procedure 
 (1877), Insolvency, Assignments, Arbitrations, 
 and the like. See Guide to Law of Germany, 
 published by the Library of Congress (1912). 
 
 There is an English translation of "The
 
 CODE 
 
 513 
 
 CODE 
 
 Civil Code of the German Empire" by Wal- 
 ter Loewy, published by a joint Committee 
 of Pennsylvania Bar Association and Uni- 
 versity of Pennsylvania, 1009. 
 
 F. W. Maitland said of the Civil Code: 
 "Never yet, I think, has so much first-rate 
 brain power been put into any actual legisla- 
 tion ;" 3 Collected Papers 474. 
 
 Gregorian. An unofficial compilation of 
 the rescripts of the Roman emperors. It is 
 said to have been made in the Orient per- 
 haps about A. D. 295. Maitland in 14 L. Q. 
 R. 15. It is not now extant. 
 
 The Theodosian Code, which was promulgated 
 nearly a century afterwards, was a continuation of 
 this and of the collection of Hermogenes. The chief 
 interest of all these collections is in their relation 
 to their great successor the Justinian Code. 
 
 Guidon de la Mer. A collection of sea 
 laws drawn up towards the close of the 16th 
 century, probably at the instance of the mer- 
 chants of Rouen. 
 
 ITammurabi, Code of. A collection of de- 
 cisions in the civil courts and adapted to 
 general use in Babylonia, about 2250 i'«. C. 
 It was discovered in the Acropolis of Susa. 
 A translation by C. II. W. Jones was pub- 
 lished in 1903. 
 
 Hanse Towns, Laws of the. A code of 
 maritime law established by the Hanseatic 
 towns. See Hanseatic League. 
 
 It was first published in German, at Lubec, in 
 1597. In an assembly of deputies from the several 
 towns, held at Lubec, May 23, 1614, it was revised 
 and enlarged. The text, with a Latin translation, 
 was published with a commentary by Kuricke; and 
 a French translation has been given by Cleirac in 
 Us et Coutumes de la Mer. An English version may 
 be found in 1 Peters, Adm. xciii, and in 30 Fed. Cas. 
 1197. 
 
 Henri (French). The best-known of sever- 
 al collections of ordinances made during the 
 sixteenth, seventeenth, and eighteenth centu- 
 ries, the number of which in part both form- 
 ed the necessity and furnished the material 
 for the Code NapoUon. 
 
 Henri (Haytien). A very judicious adap- 
 tation from the Code Napole'on for the Ilay- 
 tiens. It was promulgated in 1812 by Chris- 
 tophe (Henri I.). 
 
 Hermogenian. An unofficial compilation 
 made in the fourth century, supplementary 
 to the code of Gregorius. It is not now ex- 
 tant It is said to have been made in the 
 Orient, perhaps between A. D. 314 and 324, 
 but these dates are uncertain. Maitland in 
 14 L. Q. R. 15. 
 
 Japan. In 18S0 a Penal Code and a Code 
 of Penal Procedure were adopted, in 1890 a 
 Commercial Code (revised in 1809), and in 
 1893 a Civil Code, became effective. There 
 is an English translation of the Civil Code 
 by L. H. Loenholm, Tokio, 1906, 3d ed., and 
 another with annotations by J. E. de Becker, 
 London, 1910. There is an English transla- 
 tion of the Commercial Code by Yang Yin 
 Hang published in 1911 by the University of 
 Pennsylvania. The principles are derived 
 Bouv.— 33 
 
 from German and French sources, with the 
 former predominating in the Conini' 
 and the latter in the Civil, | 
 
 Justinian Code. A collection of imperial 
 ordinances compiled by order of the emperor 
 Justinian. 
 
 All the judicial wisdom of the Roman civilization 
 which is of importance to the American lawyer is 
 embodied in the compilations to which Ju 
 gave his name, and from which that name b 
 ceived its lustre. Of these, first in c 
 importance, if not first in magnitude and present 
 Interest, was the Code. In the first year of his 
 reign he commanded Tribonian, a statesman of his 
 court, to revise the imperial ordinances. The first 
 result, now known as the Codex Yetus, is not extant 
 It was superseded a few years after its promulga- 
 tion by a new and more complete edition. Although 
 it is this alone which is now known as the Code of 
 Justinian, yet the Pandects and the Institutes which 
 followed it are a part of the same system, declared 
 by the same authority; and the three together form 
 one codification of the law of the Empire. The first 
 of these works occupied Tribonian and nine asso- 
 ciates fourteen months. It is comprised in twelve 
 divisions or books, and embodies all that was deem- 
 ed worthy of preservation of the imperial statutes 
 from the time of Hadrian down. The Institutes is 
 an elementary treatise prepared by Tribonian and 
 two associates upon the basis of a similar work by 
 Gaius, a lawyer of the second century. 
 
 The Pandects, which were made public about a 
 month after the Institutes, were an abridgment of 
 the treatises and the commentaries of the la 
 They were presented in fifty books. Tribonian and 
 the sixteen associates who aided him in this part of 
 his labors accomplished this abridgment in three 
 years. It has been thought to bear obvious marks 
 of the haste with which it was compiled; but it is 
 the chief embodiment of the Roman law, though 
 not the most convenient resort for the modern 
 student of that law. 
 
 Tribonian found the law, which for fourteen cen- 
 turies had been accumulating, comprised in two 
 thousand books, or— stated according to the Roman 
 method of computation— in three million sentences. 
 It is probable that this matter, if printed in law 
 volumes such as are now used, would fill from three 
 to five hundred volumes. The comparison, to be 
 more exact, should take into account treatises and 
 digests, which would add to the bulk of the collec- 
 tion more than to the substance of the material. 
 The commissioners were instructed to extract a 
 series of plain and concise laws, in which there 
 should be no two laws contradictory or alike. In 
 revising the imperial ordinances, they were em- 
 powered to amend in substance as well as in form. 
 
 The codification being completed, the emperor 
 decreed that no resort should be had to the earlier 
 writings, nor any comparison be made with them. 
 Commentators were forbidden to disfigure the new 
 with explanations, and lawyers were forbidden to 
 cite the old. The imperial authority was sufficient 
 to sink into oblivion nearly all the previously exist- 
 ing sources of law ; but the new statutes which the 
 emperor himself found it necessary to establish, in 
 order to explain, complete, and amend the law, 
 rapidly accumulated throughout his long reign. 
 These are known as the "Novels." The Code, the 
 Institutes, the Pandects, and the Novels, with some 
 subsequent additions, constitute the Corpus Juris 
 Civilis. See Crra, Law. 
 
 Among English translations of the Institutes are 
 that by Cooper (Phila. 1812; N. Y. 1811)— which is 
 regarded as a very good one — and that by Sandars 
 (Lond. 1853), which contains the original text also, 
 and copious references to the Digests and Code. 
 Among the modern French commentators are Or- 
 tolan and Pasquiere. 
 
 Livingston's Code. Edward Livingston, 
 one of the commissioners who prepared the 
 Louisiana Code, prepared and presented to
 
 CODE 
 
 514 
 
 CODE 
 
 congress a draft of a penal code for the Unit- 
 ed States ; which, though it was never adopt- 
 ed, is not unfrequently referred to in the 
 books as stating principles of criminal law. 
 
 Marine Ordinances of Louis XIV. See 
 Oruonnance de la Marine, infra. 
 
 Manu, Institutes of. A code of Hindu 
 law, of great antiquity, which still forms the 
 basis of Hindu jurisprudence (Elphinstone's 
 Hist, of India, p. 83), and is said also to be 
 the basis of the laws of the Burmese and of 
 the Laos. Buckle, Hist, of Civilization, vol. 
 1, p. 54, note, 70. "It undoubtedly enshrines 
 many genuine observances of the Hindu race, 
 but the opinion of the best contemporary ori- 
 entalists is that it does not, as a whole, rep- 
 resent a set of rules ever actually adminis- 
 tered in Hindustan. It is, in great part, an 
 ideal picture of that which, in the view of 
 the Brahmins, ought to be the law." Maine, 
 Anc. Law 16. 
 
 This code contains simple rules for regulating the 
 trial of ordinary actions ; the number and com- 
 petency of witnesses and sufficiency of evidence ; 
 methods of procedure in court and the judgment 
 and its enforcement. There is no indication of such 
 an office as the attorney, as the judge is required to 
 examine witnesses and parties; there is also a sum- 
 mary of the customary law. 
 
 The institutes of Manu are, in point of the rela- 
 tive progress of Hindu jurisprudence, a recent pro- 
 duction; Maine, Anc. Law 17; though ascribed to 
 the ninth century b. c. A translation will be found 
 in the third volume of Sir William Jones's Works. 
 See, also, Gentoo Code, supra; Hindu Law. 
 
 Mosaic Code. The code proclaimed by 
 Moses for the government of the Jews, b. c. 
 1491. 
 
 One of the peculiar characteristics of this code is 
 the fact that, whilst all that has ever been success- 
 fully attempted in other cases has been to change 
 details without reversing or ignoring the general 
 principles which form the basis of the previous law, 
 that which was chiefly done here was the assertion 
 of great and fundamental principles in part con- 
 trary and in part perhaps entirely new to the cus- 
 toms and usages of the people. These principles 
 have given the Mosaic Code vast influence in the 
 subsequent legislation of other nations than the 
 Hebrews. The topics on which it is most frequently 
 referred to as an authority in our law are those of 
 marriage and divorce, and questions of affinity and 
 of the punishment of murder and seduction. 
 
 ORDON NANCE DE LA MARINE. A Code Of 
 
 maritime law promulgated by Louis XIV. 
 
 It was promulgated in 1681, and with great com- 
 pleteness embodied all existing rules of maritime 
 law, including insurance. Kent pronounces it a 
 monument of the wisdom of the reign of Louis "far 
 more durable and more glorious than all the mili- 
 tary trophies won by the valor of his armies." Its 
 compilers are unknown. An English translation is 
 found in 2 Peter's Adm. Dec, appendix ; also in 30 
 Fed. Cas. 1203. The ordinance has been at once 
 illustrated and eclipsed by Valin's commentaries 
 upon it. 
 
 Oleron, Laws or Rolls of. The chief 
 code of maritime law of the Middle Ages, 
 • which takes its name from the island of 
 Oleron. 
 
 Both the French and the English claim the honor 
 of having originated this code, — the former attri- 
 buting its compilation to the command of Queen 
 Eleanor, Duchess of Guienne, near which province 
 the island of Oleron lies ; the latter ascribing its 
 
 promulgation to her son, Richard I. An English 
 writer considers that the greater part of it is prob- 
 ably of older date, and was merely confirmed by 
 Richard; 1 Soc. Eng. 313. He, without doubt, 
 caused it to be improved, if he did not originate it, 
 and he introduced it into England. He did at 
 Chinon, in 1190, issue ordinances for the government 
 of the navy which have been fairly described as 
 the basis of our modern articles of war, and what 
 they did for the navy, the code of Oleron, to which 
 they were allied, did for the merchant service. Aft- 
 er much learned discussion all are agreed now that 
 the home of these judgments was Southern France; 
 Studer, Oak Book of Southampton, Vol. II. Twiss 
 considers that they were judgments of the Mayor's 
 Court of Oleron. Other writers hold the view that 
 they were a compilation of customs. Some addi- 
 tions were made to this Code by King John. It was 
 promulgated anew in the reign of Henry III., and 
 again confirmed in the reign of Edward III., at 
 which time they had acquired the status of laws. 
 There is a translation in 1 Pet. Adm. Dec. The text 
 will be found in the Black Book of the Admiralty. 
 The French version, with Cleirac's commentary, is 
 contained In Us et Coutumes de la Mer. Studer'i 
 work, supra, discusses the subject at length, giving 
 the various extant MSS. together with a critical 
 translation of the text with variorum notes. The 
 subjects upon which it is now valuable are much 
 the same as those of the Consolato del Mare. 
 
 Ostrogothic The code promulgated by 
 Theodoric, king of the Ostrogoths, at Rome, 
 a. d. 500. It was founded on the Roman 
 law. 
 
 Prussian Code. Allgemeines Landrecht. 
 The former code of 1751 was not successful, 
 and the Grand Chancellor de Cocceji was 
 charged by Frederick II. with the duty of 
 codifying the law of Prussia ; he died in 
 1735, and afterwards the work was arrested 
 by the seven years' war, but was resumed in 
 1780, under Frederic II., and a project was 
 prepared by Dr. Carmer and Dr. Volmar, 
 which was submitted to the savans of Eu- 
 rope and to the royal courts. After long and 
 thorough discussion, the present code was 
 finally promulgated and put in force June 1, 
 1794, by Frederick William, and then for the 
 first time all Europe was united under one 
 system of law. It is known also as the Code 
 Frederic. See German code, supra. 
 
 Rhodian Laws. A maritime code adopted 
 by the people of Rhodes, and in force among 
 the nations upon the Mediterranean nine or 
 ten centuries before Christ. There is reason 
 to suppose that the collection under this title 
 in Vinnius is spurious, and, if so, the code is 
 not extant See Marsh, on Ins. b. 1, c. 4, 
 p. 15. 
 
 Spain. This country, even more than 
 France, has developed the Roman Law to 
 its modern state in which it now divides the 
 world with the English Common Law. The 
 earliest codification, Fuero Juzgo or Forum 
 Judicum, known to us as the Visigothie 
 Code, appeared about 650 and embraced the 
 Visigothie traditions that were first reduced 
 to writing by Euric, in the latter half of the 
 fifth century, the original of which is lost, 
 and also much of the Breviarium Alarici- 
 anum, composed largely of the Justinian and 
 Theodosian Codes and promulgated early in 
 the sixth century by Alaric II. The Com-
 
 Code 
 
 515 
 
 CODE 
 
 parative Law Bureau of the American Bar 
 Association in 1010 published a translation 
 by S. P. Scott who says in the preface that 
 it is "the must remarkable monument of leg- 
 islation which ever emanated from a semi- 
 barbarian people and the only essential 
 memorial of greatness or erudition bequeath- 
 ed by the Goths to posterity." 
 
 Fuero Real or Fuero de las Leyes, a col- 
 lection of laws and usages of the Castilian 
 monarchy as well as Roman doctrines was 
 promulgated by Alfonso X. the Wise, in 
 1255, and Is considered an important monu- 
 ment of Spanish jurisprudence. It is in 
 course of translation by S. P. Scott for the 
 Comparative Law Bureau. 
 
 Las Sicte Partidas (The Seven Parts) was 
 also the product of Alfonso X, having been 
 begun in V17A\ and published in 1263, as Libro 
 de las Leyes. The final popular title was 
 not officially given to it until 1347, by Al- 
 fonso XI. Embracing the laws and customs 
 contained in former codes, this was also a 
 work of wisdom and philosophy and the most 
 complete treatise of jurisprudence that had 
 been published up to that time. It is still 
 the authority of last resort wherever Span- 
 ish law once dominated. A translation has 
 been made by S. P. Scott for the Compara- 
 tive Law Bureau and is about to be pub- 
 lished. 
 
 In 1507, under Phillip II, La Nueva Reco- 
 pilacion was sanctioned and La Norisima 
 Recopiladon was decreed in force on July 
 15, 1805, and while collections of laws, they 
 were clearly utilitarian measures to create 
 order in a vast mass of systemless legisla- 
 tion conflicting with the older but controlling 
 codes. 
 
 The modern Civil Code had its origin in 
 the Constitutional Cortes of Cadiz which in 
 1810, by special commission, undertook to 
 codify the most important branches of the 
 law ; after many idle intervals it was com- 
 pleted and promulgated in Spain July 24, 
 18S9. By decree of July 31, 1S89, it was ex- 
 tended to Cuba, Porto Rico and the Philip- 
 pine Island's. It has been translated by the 
 War Department of the United States and 
 also by Clifford S. Walton in his work "Civil 
 Law in Spain and Spanish America," 1900. 
 In its conciseness, scientific classification 
 and underlying doctrines it shows the influ- 
 ence of the Romans, the Visigoths and the 
 Moors. 
 
 Other modern codes and the years of their 
 adoption are as follows : Civil Procedure, 
 1881; Criminal Code, 1870; Criminal Pro- 
 cedure, 1882; Commercial Code, 1885, and 
 Military Code, 1S90. 
 
 Spanish America. While all these coun- 
 tries rest their jurisprudence on Las Siete 
 Partidas; see Las Partidas; each one has 
 its Civil and Commercial Codes; the coun- 
 tries, codes and dates of adoption are as 
 follows: Argentine Republio. Commercial 
 Code, 1890; Civil Code, effective 1S71 (there 
 
 is an English translation by Frank L. 
 nini, published by the Comparativ< 
 reau of the American Bar Association, 
 L914) ; Bolivia, Commercial C- 
 Brazil, Commercial Cod [] Code 
 
 1891 ; Colombia, Civil Code i I tlve 
 Commercial Code 1886 87; Chili, Civil 
 1857, Commercial Code 
 Commercial Code 1853, Civil Code eff< 
 1888; Ecuador, Civil Code 1887, 
 Code, 1878; Guatemala, Civil Code 1877, 
 Commercial Code 1877; Honduras, 
 Code, effective 1899; .1/ea-ico, Civil I 
 Commercial Code 1889; J'cru. Civil ('..de, ef- 
 fective 1852 (English translation by I 
 L. Joannini, published by the Comparative 
 Law Bureau of the American Bar As 
 tion, 1914) ; Salvador, Civil Code 
 mereial Code 1880, effective 1882; Uruguay, 
 Civil Code 1895; Venezuela, Civil Code, ef- 
 fective 18 
 
 Switzerland. On January 1, 1912, a Civil 
 Code became effective and is the latest and 
 most scientific work of its kind. It was 
 drawn by Dr. Eugene Huber and was pro- 
 mulgated officially in French, German and 
 Italian. An English translation by I: 
 P. Shick and Charles Wetherill is pul '. 
 by the Comparative Law Bureau of the 
 American Bar Association (1914). 
 
 Theodosian. A code compiled by a com- 
 mission of eight under the direction of 
 dosius the Younger. 
 
 It comprises the edicts and rescripts of sixteen 
 emperors, embracing a period of one hundred and 
 twenty-six years. It was promulgated in the East- 
 ern Empire in 438, and quickly adopted, also, in the 
 Western Empire. The great modern expounder of 
 this code is Gothofredus (Godefroi). The results of 
 modern researches regarding this code are well 
 stated In the Foreign Quar. Rev. vol. 9, 37!. 
 
 Trani, Ordinances and Customs of the 
 Sea of. Published in 1063, and said to be 
 the most ancient body of maritime laws in 
 existence. Its 32 articles consist of a series 
 of decisions made by the maritime consuls of 
 the guild of navigators at Trani, a city on 
 the Adriatic Sea, in the 11th century. Print- 
 ed in Black Book of the Admiralty. Vol. IV. 
 "It was no 'code' in our modern sense of tbat 
 term. It was only a more or less methodic 
 collection of modern statutes." Maitland, 1 
 Sel. Essays in Anglo-Amer. Leg. Hist 12 (14 
 L. Q. R. 16). 
 
 Twelve Tables. Laws of ancient Rome. 
 They arose out of the discontent of the plebs; 
 after a long struggle decemoirs were appointed to 
 draft a body of general laws (B. C. 449-451). Their 
 draft was enacted into a statute. It was q< ither a 
 code, nor, in the main, new law, but rather a con- 
 cise and precise statement of the most important 
 among the ancient customs of the people. It was 
 the germ of the Roman law, and as late as Cicero 
 boys learned it by heart. See Bryce, Rome & Eng- 
 land (1 Sel. Essays in Anglo-Amer. Leg. Hist 
 See fragment of the law of the Twelve Tables, in 
 Cooper's Justinian 656; Gibbon's Rome c. 44; Maine, 
 Anc. Law 2. 
 
 Visigothic. Lex Rom ana Yisigothorum. 
 See supra, sub-title Spain.
 
 CODE 
 
 516 
 
 CODICIL 
 
 Wisby, Laws of. A concise but compre- 
 hensive code of maritime law, established by 
 the "merchants and masters of the magnifi- 
 cent city of Wisby." 
 
 The port of Wisby, now in ruins, was situated on 
 the northwestern coast of Gottland, on the Baltic 
 sea. It was the capital of the island, and the seat 
 of an extensive commerce, of which the chief relic 
 and the most significant record is this code. It is a 
 mooted point whether this code was derived from 
 the laws of Oleron, or that from this ; but the 
 similarity of the two leaves no doubt that one was 
 the offspring of the other. It was of great author- 
 ity in the northern parts of Europe. "Lex Rhodia 
 navalis" says Grotius, "pro jure gentium in Mo 
 mare Mediterraneo vigcoat ; sicut apud Gallium 
 leges Oleronis, et apud omnes transrhenanos leges 
 Wisbuenses." De Jure B. lib. 2, c. 3. It is still re- 
 ferred to on subjects of maritime law. An English 
 translation will be found in 1 Pet. Adm. Dec; also 
 in the Black Book of the Admiralty and 30 Fed. 
 Cas. 1189. 
 
 The main additions to the above title, re- 
 ferring to recent codes or publication of new 
 editions of the older codes, have been pre- 
 pared for this work by William W. Smithers, 
 of the Philadelphia Bar, Secretary of the 
 Comparative Law Bureau of the American 
 Bar Association (organized August 28, 1907), 
 of which Simeon E. Baldwin, Founder of the 
 American Bar Association, was also a 
 Founder and has been the Director. The 
 work of the Bureau has been of great public 
 value and promises even greater results. 
 
 Publishers announce the publication of 
 "The Commercial Laws of the World" in 
 thirty-five volumes. 
 
 In a learned address before the American 
 Bar Association (Annual Report, 18S6), upon 
 "Codification, the Natural Result of the Ev- 
 olution of the Law," Mr. Semmes, one of the 
 most earnest advocates of the merits of the 
 civil law and the code system, sketches the 
 history of the codes of Europe and the rela- 
 tion of the civil to the common law and in 
 conclusion says: 
 
 "The history of codification teaches that the task 
 of preparing a code of laws is difficult, that its 
 proper execution is a work of years, to be entrusted, 
 not to a deciduous committee of fugitive legislators, 
 but to a permanent commission of the most en- 
 lightened and cultivated jurists, whose project, 
 prior to adoption, should be subjected to rigid and 
 universal criticism." 
 
 CODEX (Lat). A volume or roll. The 
 code of Justinian. See Code. 
 
 CODICIL. Some addition to, or qualifica- 
 tion of, a last will and testament. 
 
 This term is derived from the Latin codicillus, 
 which is a diminutive of codex, and in strictness 
 imports a little code or writing, — a little will. In 
 the Roman Civil Law, codicil was defined as an act 
 which contains dispositions of property in prospect 
 of death, without the institution of an heir or ex- 
 ecutor. Domat, Civil Law, p. ii. b. iv. tit. i. s. 1; 
 Just. De Codic. art. i. s. 2. So, also, the early Eng- 
 lish writers upon wills define a codicil in much the 
 same way. "A codicil is a just sentence of our will 
 touching that which any would have done after 
 their death, without the appointing of an executor." 
 Swinb. Wills, pt. i. s. 5, pi. 2. But the present defi- 
 nition of the term is that first given. 1 Wills, Exrs. 
 8 ; Swinb. Wills, pt. i. s. v. pi. 5. 
 
 Under the Roman Civil Law, and also by the early 
 English law, as well as the canon law, all of which 
 
 very nearly coincided in regard to this subject, It 
 was considered that no one could make a valid will 
 or testament unless he did name an executor, as 
 that was of the essence of the act. This was at- 
 tended with great formality and solemnity, in the 
 presence of seven Roman citizens as witnesses, omni 
 exceptione majores. Hence a codicil is there termed 
 an unofficious, or unsolemn, testament. Swinb. 
 Wills, pt. i. s. v. pi. 4 ; Godolph, pt. i. c. 1, s. 2 ; id. 
 pt. i. c. 6, s. 2; Plowd. 185; where it is said by the 
 judges, that "without an executor a will is null 
 and void," which has not been regarded as law, in 
 England, for the last two hundred years, probably. 
 
 The office of a codicil under the civil law seems to 
 have been to enable the party to dispose of his 
 property, in the near prospect of death, without 
 the requisite formalities of executing a will (or tes- 
 tament, as it was then called). Codicils were strict- 
 ly confined to the disposition of property; whereas 
 a testament had reference to the institution of an 
 heir or executor, and contained trusts and con- 
 fidences to be carried into effect after the decease 
 of the testator. Domat, b. iv. tit. i. 
 
 In the Roman Law there were two kinds of codi- 
 cils: the one, where no testament existed, and 
 which was designed to supply its place as to the 
 disposition of property, and which more nearly re- 
 sembled our donatio causa mortis than anything 
 else now in use; the other, where a testament did 
 exist, had relation to the testament, and formed a 
 part of it and was to be construed in connection 
 with it. Domat, p. ii. b. iv. tit. i. s. i. art. v. It is 
 in this last sense that the term is now universally 
 used in the English law, and in the American states 
 where the common law prevails. 
 
 Codicils owe their origin to the following circum- 
 stance. Lucius Lentulus, dying in Africa, left 
 codicils, confirmed by anticipation in a will of for- 
 mer date, and in those codicils requested the Em- 
 peror Augustus, by way of fidei commissum, or 
 trust, to do something therein expressed. The em- 
 peror carried this will into effect, and the daughter 
 of Lentulus paid legacies which she would not oth- 
 erwise have been legally bound to pay. Other per- 
 sons made similar fidei commissa, and then the em- 
 peror, by the advice of learned men whom he con- 
 sulted, sanctioned the making of codicils, and thus 
 they became clothed with legal authority. Inst 2. 
 25 ; Bowy. Com. 155. 
 
 All codicils are part of the will, and are 
 to be so construed; 17 Sim. 108; 16 Beav. 
 510, 2 Ves. Sen. Ch. 242 ; 4 Y. & C. Ch. 160 ; 
 Wilkes v. Harper, 3 Sandf. Ch. (N. Y.) 11; 
 4 Kent 531. See Gelbke v. Gelbke, 88 Ala. 
 427, 6 South. 834; Burhans v. Haswell, 43 
 Barb. (N. Y.) 424 ; and executed with the 
 ^ame formalities ; Schoul. Wills 359 ; 4 Kent 
 531; Tilden v. Tilden, 13 Gray (Mass.) 103. 
 
 A codicil properly executed to pass real 
 and personal estate, and in conformity with 
 the statute of frauds, and upon the same 
 piece of paper with the will, operates as a 
 republication of the will, so as to have it 
 speak from that date; Coale v. Smith, 4 
 Pa. 376; Armstrong v. Armstrong, 14 B. 
 Monr. (Ky.) 333; Brimmer v. Sohier, 1 Cush. 
 (Mass.) 118; 3 M. & C. 359. So also it has 
 been held that it is not requisite that the 
 codicil should be on the same piece of paper 
 in order that it should operate as a republi- 
 cation of the will; Kip v. Van Cortland, 7 
 Hill (N. Y.) 346; Den v. Snowhill, 23 N. 
 J. L. 447; 1 Ves. Sen. 442; Harvy v. Chou- 
 teau, 14 Mo. 587, 55 Am. Dec. 120; but 
 where it is on the same piece of paper, not 
 signed, only the will proper which was sign- 
 ed should be admitted to probate; Smith's
 
 CODICIL 
 
 517 
 
 COERCION 
 
 Estate, 9 Pa. Co. Ct. It. 333; but see Brown's 
 Ex'r v. Tilden, 5 liar. & J. (Md.) 371. 
 
 A codicil duly executed, and attached or 
 referring to a paper defectively executed as 
 a will, has the effect to give operation to 
 the whole, as one instrument ; Schoul. Wills 
 448; Beall v. Cunningham, 3 B. Monr. (Ky.) 
 390, 39 Am. Dec. 469; Haven v. Foster, 14 
 Pick. (Mass.) 543; 16 Ves. Ch. 167; 1 Ad. 
 & B. -11':;; Matter of Hardenburg's Will, 85 
 Hyn 580, 33 N. Y. Supp. 150. See numerous 
 cases cited in 7 Ves. Ch. (Sumner ed.) 98; 
 
 1 Cr. & M. 42. 
 
 There may be numerous codicils to the 
 same will. In such cases, the later ones 
 operate to revive and republish the earlier 
 on,-: :; Bingh. 614; 12 J. B. Moore 2. See 
 Johns Hopkins University v. Pinckney, 55 
 
 Md. nor,. 
 
 Iii order to set up an informally execut- 
 ed paper by means of one subsequently ex- 
 ecuted in due form, referring to such infor- 
 mal paper, the reference must 'be such as 
 clearly to identify the paper ; Tonuele v. 
 Hall, 4 N. Y. 140. 
 
 A codicil which depends on the will for 
 interpretation or execution falls, if the will 
 be revoked ; 1 Tucker 436 ; Jouse v. Forman, 
 5 Bush (Ky.) 337. 
 
 It is not competent to provide by will for 
 the disposition of property to such persons 
 as shall be named in a subsequent codicil, 
 not executed according to the prescribed 
 formalities in regard to wills; since all pa- 
 pers of that character, in whatever form, if 
 intended to operate only in the disposition of 
 one's property after death, are of a testa- 
 mentary character, and must be so treated; 
 
 2 Ves. Ch. 204 ; 2 M. & K. 765. 
 
 So much of the will as is inconsistent 
 with the codicil is revoked ; Bosley v. Wyatt, 
 14 How. (U. S.) 390, 14 L. Ed. 468. 
 
 A codicil whose only provision is the ap- 
 pointment of an executor who had died, can- 
 not be admitted to probate apart from the 
 will ; Pepper's Estate, 14S Pa. 5, 23 Atl. 1039. 
 A testator executed a codicil which was de- 
 scribed as "a codicil to my will executed 
 some years ago," and after his death the 
 will could not be found, but probate of the 
 codicil was granted; [1892] Prob. 254. See 
 Wiixs. 
 
 C0EMPTI0. In Civil Law. The ceremo- 
 ny of celebrating marriage by solemnities. 
 The parties met and gave each other a small sum 
 of money. They then questioned each other in 
 turn. The man asked the woman if she wished to 
 be his mater-familias. She replied that she so wish- 
 ed. The woman then asked the man if he wished 
 to be her patcr-familias. He replied that he so 
 wished. They then joined hands ; and these were 
 called nuptials by coemptio. Boethius, Coemptio; 
 Calvinus, Lex.; Taylor, Law Gloss. 
 
 COERCION. Constraint; compulsion; 
 force. 
 
 Direct or positive coercion takes place 
 when a man is by physical force compelled 
 to do an act contrary to his will : for ex- 
 
 ample, when a man falls into the hands of 
 the enemies of his country, and they com- 
 pel him, by a just fear of death, to fight 
 against it See Grossmeyer v. U. S., 4 Ct. 
 Cls. (U. S.) 1; Miller v. L'. S., 4 Ct Cls. (U. 
 S.) 2S8; Padelford v. U. S., 4 Ct C] 
 S.) 317. 
 
 Implied coercion exists whore a person is 
 legally under subjection to another, and is 
 induced, in consequence of such sul>j. 
 to do an act contrary to his will. 
 
 As will is necessary to the commission of 
 a crime or the making of a contract, a per- 
 son actually coerced into either has no will 
 on the subject, and is not responsible; 1 
 East PL Cr. 225; 5 Q. B. 279; Griffith v. 
 Sitgreaves, 90 Pa. 161. The command of a 
 superior to an inferior; United States v. 
 Jones, 3 Wash. C. C. 209, 220, Fed. Las. No. 
 15,494; Com. v. Blodgett, 12 Mete. (Mass.) 
 50; Harmony v. Mitchell, 1 Ulatchf. 549, 
 Fed. Cas. No. 6,0s2 ; Mitchell v. Harmony, 
 13 How. (U. S.) 115, 14 L. Fd. 75; of a par- 
 ent to a child; Broom. Max. 11; of a master 
 to his servant, or a principal to his agent; 
 Hays v. State, 13 Mo. 246 ; Com. v. Drew, 
 3 Cush. (Mass.) 279; Klilfield v. St 
 How. (Miss.) 304; State v. Bugbee, 22 Vt. 
 32 ; do not amount to coercion. 
 
 As to persons acting under the constraint 
 of superior power, and, therefore, not crim- 
 inally amenable, the principal case is that 
 of married women, with respect to whom 
 the law recognizes certain presumptions. 
 Thus, if a wife commits a felony, other than 
 treason or homicide, or, perhaps, highway 
 robbery, in company with her husband, the 
 law presumes that she acted under his coer- 
 cion, and, consequently, without any guilty 
 intent, unless the fact of non-coercion is 
 distinctly proved ; Clarke, Cr. L. 77. See 
 Com. v. Eagan, 103 Mass. 71; State v. Wil- 
 liams, 65 N. C. SOS. This presumption ap- 
 pears on some occasions to have been con- 
 sidered conclusive, and is still practically re- 
 garded in no very different light, especially 
 when the crime is of a flagrant character; 
 but the better opinion seems to be that in 
 every case the presumption may now be re- 
 butted by positive proof that the woman act- 
 ed as a free agent; and in one case that 
 was much discussed, the Irish judges a 
 to have considered that such positive proof 
 was not required, but that the question was 
 always one to be determined by the jury on 
 the evidence submitted to them; Jel>b,93; 
 1 Mood. 143. It seems that a married wo- 
 man cannot be convicted under any circum- 
 stances as a receiver of stolen goods, when 
 the property has been taken by her hus- 
 band and given to her by him ; 1 Dearsl. 
 184. 
 
 Husband and wife were jointly charged 
 with felonious wounding with intent to dis- 
 figure and to do grievous bodily harm. The 
 jury found that the wife acted under the co- 
 ercion of the husband, and that she did not
 
 COERCION 
 
 518 
 
 COGNATI, COGNATES 
 
 persoDally inflict any violence on the prose- 
 cutor. On this finding, the wife was held 
 entitled to an acquittal; 1 Dearsl. & B. 553. 
 
 Whether the doctrine of coercion extends 
 to any misdemeanor may admit of some 
 doubt ; but the better opinion seems to be 
 that, provided the misdemeanor is of a se- 
 rious nature, as, for instance, the uttering 
 of base coin, the wife will be protected in 
 like manner as in cases of felony ; although 
 it has been distinctly held that the protec- 
 tion does not extend to assaults and bat- 
 teries or the offence of keeping a brothel ; 
 Russ. Cr. 38 ; 2 Lew. 229 ; 8 C. & P. 19, 541 ; 
 Com. v. Lewis, 1 Mete. (Mass.) 151; Com. v. 
 Neal, 10 Mass. 152, 6 Am. Dec. 105. Indeed, 
 it is probable that in all inferior misdemean- 
 ors this presumption, if admitted at all, 
 would be held liable to be defeated by far 
 less stringent evidence of the wife's active 
 co-operation than would suffice in cases of 
 felony ; S C. & P. 541 ; 2 Mood. 53. 
 
 There is coercion only when the husband 
 is present; it does not extend to treason, 
 murder and grave felonies ; 2 C. & K. 903 ; it 
 extends to the lesser felonies and most mis- 
 demeanors, and even in these the circum- 
 stances may repel the presumption of coer- 
 cion ; 8 C. & P. 554. If it x appear that she 
 took the leading part, his presence will not 
 protect her; 12 Cox 45. If she acted in his 
 absence, no presumption of coercion arises; 
 she is a principal; Russ & Ry. 270. 
 
 A wife is not chargeable with guilt until 
 the presumption of coercion has been remov- 
 ed; State v. Harvey, 130 la. 394, 106 N. W. 
 93S; there is a presumption of coercion if 
 the husband was present, but it may be 
 rebutted; Com. v. Adams, 186 Mass. 101, 71 
 X. E. 78; her conduct alone at the time may 
 suffice to overcome a presumption ; id. 
 Where the wife of a convicted murderer at 
 his instigation shot the revolver, the offence 
 was committed in the husband's presence 
 and there was nothing to rebut the presump- 
 tion of coercion ; State v. Miller, 162 Mo. 
 253, 62 S. W. 692, 85 Am. St. Rep. 498. 
 If it appears that the wife was not urged 
 by the husband, but was the inciter, she is 
 liable ; People v. Ryland, 2 N. Y. Cr. R. 441. 
 In the case of a disorderly house, they are 
 both equally guilty ; State v. Jones, 53 W. 
 Va. 613, 45 S. E. 916. 
 
 The marriage need not be strictly proved ; 
 reputation is sufficient proof of marriage; 
 but mere cohabitation is not; Odgers, C. L. 
 1347. 
 
 See 1 B. & H. Lead. Cr. Cas. 76; Duress. 
 
 CO-EXECUTOR. One who is a joint ex- 
 ecutor with one or more others. See Execu- 
 tor. 
 
 COGNATI, COGNATES. In Civil Law. 
 
 All those persons who can trace their blood 
 to a single ancestor or ancestress. 
 
 The term is not used in the civil law as it now 
 prevails in France. In the common law it has no 
 
 technical sense; but as a word of discourse In Eng- 
 lish it signifies, generally, allied by blood, related 
 in origin, of the same family. 
 
 Originally, the maternal relationship had no in- 
 fluence in the formation of the Roman family, nor 
 in the right of inheritance. But the edict of the 
 praetor established what was called the Prastorian 
 succession, or the bonorum possessio, in favor of 
 cognates in certain cases. Dig. 38. 8. See Pater- 
 familias ; Agnati. 
 
 COGNATION. In Civil Law. Signifies 
 generally the kindred which exists between 
 two persons who are united by ties of blood 
 or family, or both. 
 
 Civil cognation is that which proceeds 
 alone from the ties of families, as the kin- 
 dred between the adopted father and the 
 adopted child. 
 
 Mixed cognation is that which unites at 
 the same time the ties of blood and family, 
 as that which exists between brothers the 
 issue of the same lawful marriage. Inst. 
 3. 6; Dig. 38. 10. 
 
 Natural cognation Is that which is alone 
 formed by ties of blood ; such is the kin- 
 dred of those who owe their origin to an 
 illicit connection, either in relation to their 
 ascendants or collaterals. 
 
 COGNISANCE. See Cognizance. 
 
 C0GNITI0NIBUS AD M ITTEND IS. A 
 
 writ requiring a justice or other qualified 
 person, who has taken a fine and neglects 
 to certify it in the court of common pleas, 
 to do so. 
 
 COGNIZANCE (Lat. cognitio, recognition, 
 knowledge ; spelled, also, Conusance and Cog- 
 nisance). Acknowledgment; recognition; ju- 
 risdiction ; judicial power ; hearing a matter 
 judicially. See 12 Ad. & EL 259. 
 
 Of Pleas. Jurisdiction of causes. A privi- 
 lege granted by the king to a city or town 
 to hold pleas within the same. Termes de 
 la Ley. It is in frequent use among the 
 older writers on English law In this latter 
 sense, but is seldom used, if at all, in 
 America, except in its more general mean- 
 ing. The universities of Cambridge and Ox- 
 ford possess this franchise ; 11 East 543 ; 1 
 W. Bla. 454; 3 Bla. Com. 298. 
 
 Claim of Cognizance (or of Conusance). An 
 intervention by a third person, demanding 
 judicature in the cause against the plaintiff, 
 who has chosen to commence his action out 
 of claimant's court. 2 Wils. 409; 2 Bla. 
 Com. 350, n. 
 
 It is a question of jurisdiction between 
 the two courts ; Fortesc. 157 ; 5 Viner, Abr. 
 588 ; and not between the plaintiff and de- 
 fendant, as in the case of plea to the juris- 
 diction, and must be demanded by the party 
 entitled to conusance, or his representative, 
 and not by the defendant or his attorney ; 
 1 Chit. PL 403. 
 
 There are three sorts of conusance. Te- 
 nere placita, which does not oust another 
 court of its jurisdiction, but only creates a 
 concurrent one. Cognitio placitorum, when
 
 COGNIZANCE 
 
 519 
 
 COIF 
 
 the plea is commenced in one court, of which 
 conusance belongs to aother. A conusance 
 of exclusive jurisdiction: as, that no other 
 court shall hold plea, etc. Hardr. 509; Bac. 
 Abr. Courts, D. 
 
 In Pleading. The answer of the defend- 
 ant in an action of replevin who is not en- 
 titled to the distress or goods which arc the 
 subject of the action — acknowledging the 
 taking, and justifying it as having been done 
 by the command of one who is so entitled. 
 Lawes, PL 35. An acknowledgment made 
 by tlie deforciant, in levying a fine, that the 
 lands in question are the right of the com- 
 plainant. 2 Bla. Com. 350. See Inhabitants 
 of Sturbridge v. Winslow, 21 Pick. (Mass.) 
 87; Noble v. Holmes, 5 Hill (N. Y.) 194. 
 
 COGNOMEN (Lat). A family name. 
 
 The pTcenomen among the Romans distinguished 
 the person, the nomcn the gens, or all the kindred 
 descended from a remote common stock through 
 males, while the cognomen denoted the particular 
 family. The agnomen was added on account of 
 some particular event, as a further distinction. 
 Thus, in the designation Publius Cornelius Scipio 
 Africanus, Publius is the pramomen, Cornelius Is 
 the nomen, Scipio the cognomen, and Africanus the 
 agnomen. Vicat. See Cas. temp. Hardw. 286; 6 Co. 
 65. 
 
 COGNOVIT ACTIONEM (Lat. he has con- 
 fessed the cause of action. Cognovit alone 
 is in common use with the same signifi- 
 cance). 
 
 A written confession of a cause of action 
 by a defendant, subscribed, but not sealed, 
 and authorizing the plaintiff to sign judg- 
 ment and issue execution, usually for a sum 
 named. 
 
 COHABIT (Lat. con and habere). To live 
 together in the same house, claiming to be 
 married. 
 
 The word does not include In its signification, nec- 
 essarily, occupying the same bed ; 1 Hagg. Cons. 
 144 ; Dunn v. Dunn, 4 Paige, Ch. (N. Y.) 425 ; though 
 the word is popularly, and sometimes in statutes, 
 used in this latter sense ; State v. Byron, 20 Mo. 
 210; Bish. Marr. & Div. § 506, n. ; Jackson v. State, 
 116 Ind. 464, 19 N. E. 330; Pruner v. Com., S2 Va. 
 115 ; Com. v. Dill, 159 Mass. 61, 34 N. E. 84 ; Cannon 
 v. U. S., 116 U. S. 55, 6 Sup. Ct. 278, 29 L. Ed. 561. 
 
 COHABITATION. It does not necessarily 
 mean living together under the same roof; 
 a man may be absent on business, or two 
 married domestic servants may live with 
 different employers, and yet be cohabiting 
 in the broader sense; [1904] P. 389. 
 
 To live together in the same house. 
 Used without reference to the relation of the par- 
 ties to each other as husband and wife, or other- 
 wise. Used of sisters or other members of the same 
 family, or of persons not members of the same 
 family, occupying the same house ; 2 Vern. 323 ; 
 Bish. Marr. & Div. & Sep. 506, n. See In re Yard- 
 ley's Estate, 75 Pa. 207 ; Sullivan v. State, 32 Ark. 
 187. 
 
 See Lascivious Cohabitation. 
 
 COIF. A head-dress. 
 
 In England there are certain Serjeants at law who 
 are called Serjeants of the coif, from the white lawn 
 coif they wear on their heads under their small 
 black skull-cap of silk or velvet when they are ad- 
 
 mitted to that order. It was anciently worn as a 
 distinguishing badge. When powdered wigs were 
 introduced, a round patch of black silk edged with 
 white was worn on the crown of the wig as a dimin- 
 utive representation of the coif and cap. See 
 Pulling, Order of the Coif. 
 
 COIN. A piece of metal stamped with cer- 
 tain marks and made current a! 
 value. Strictly speaking, c< in di Eers from 
 money as the species differs from the - 
 Money is any matter, whether metal. ; 
 beads, or shells, which has curt 
 medium in commerce. Coin is a particular 
 species, always made of metal, and st 
 according to a certain process called coin- 
 ing. Wharton. 
 
 To fashion pieces of metal into a pre- 
 scribed shape, weight, and Oneness, and 
 stamp them with prescribed devices, by au- 
 thority of government, that they may cir- 
 culate as money. Thayer v. Hedges, -- [nd. 
 306; Griswold v. Hepburn, 2 Duval] (Ky.) 29. 
 
 Congress alone has the power to coin 
 money ; Const. U. S. Art 1, § 7 ; but the 
 states may pass laws to punish the ci 
 tion of false coin ; Fox v. Ohio, 5 How. (U. 
 S.i -110, 12 L. Ed. 213. 
 
 So long as a genuine silver coin is worn 
 only by natural abrasion, is not appreciably 
 diminished in weight, and retains the ap- 
 pearance of a coin duly issued from the 
 mint, it is a legal tender for its original 
 value; U. S. v. Lissner, 12 Fed. 840. See 
 Jersey City & B. R. Co. v. Morgan, 1G0 D. 
 S. 2S8, 16 Sup. Ct. 276, 40 L. Ed. 430. 
 
 COLD BLOOD. See Cool Blood. 
 
 COLIBERTUS. One who, holding in free 
 socage, was obliged to do certain services 
 for the lord. A middle class of tenants be- 
 tween servile and free, who held their 
 freedom of tenure on condition of perform- 
 ing certain services. Said to be the same 
 as the conditionales. CowelL 
 
 COLLATERAL (Lat. con, with, lotus, the 
 side). That which is by the side, and not 
 the direct line. That which is additional 
 to or beyond a thing. 
 
 COLLATERAL ANCESTORS. Sometimes 
 used to designate uncles and aunts and oth- 
 er collateral ancestors of the person spoken 
 of, who are in fact not his ancestors. Banks 
 v. Walker, 3 Barb. Ch. (N. Y.i 446. 
 
 COLLATERAL ASSURANCE. That which 
 
 is made over and above the deed itself. 
 
 COLLATERAL CONSANGUINITY. That 
 relationship which subsists between pe 
 who have the same ancestors but not the 
 same descendants, — who do not descend one 
 from the other. 2 Bla. Com. 203. 
 
 The essential fact of consanguinity (common an- 
 cestral blood) is the same in lineal and collateral 
 consanguinity; but the relationship is aside from 
 the direct line. Thus, father, son, and grandson are 
 lineally related; uncle and nephew, collaterally. 
 
 COLLATERAL ESTOPPEL. The collater- 
 al determination of a question by a court
 
 COLLATERAL, ESTOPPEL 
 
 520 
 
 COLLATERAL UNDERTAKING 
 
 having general jurisdiction of the subject. 
 See Small v. Haskins, 26 Vt. 209. 
 
 COLLATERAL FACTS. Facts not direct- 
 ly connected with the issue or matter in 
 dispute. 
 
 Such as are offered in evidence to estab- 
 lish the matters or facts in issue. Garwood 
 v. Garwood, 29 Cal. 521 ; King v. Chase, 15 
 N. H. 16, 41 Am. Dec. 675. Facts offered in 
 evidence at a trial to establish the issue, 
 though not necessarily conclusive thereof. 
 Freein. Judgm. § 258. 
 
 Such facts are inadmissible in evidence ; but, as 
 it is frequently difficult to ascertain a priori wheth- 
 er a particular fact offered in evidence will or will 
 not clearly appear to be material in the progress of 
 the cause, in such cases it is usual in practice for 
 the court to give credit to the assertion of the coun- 
 sel who tenders such evidence, that the facts will 
 turn out to be material. But this is always within 
 the sound discretion of the court. It is the duty of 
 the counsel, however, to offer evidence, if possible, in 
 such order that each part of it will appear to be 
 pertinent and proper at the time it is offered ; and 
 it is expedient to do so, as this method tends to the 
 success of a good cause. 
 
 V/hen a witness is cross-examined as to collateral 
 facts, the party cross-examining will be bound by 
 the answer; and he cannot, in general, contradict 
 him by another witness ; Rose. Cr. Bv. 139. 
 
 COLLATERAL INHERITANCE TAX. A 
 
 tax levied upon the collateral devolution of 
 property by will or under the intestate law*. 
 See Tax. 
 
 COLLATERAL ISSUE. An issue taken up- 
 on some matter aside from the general issue 
 in the case. 
 
 Thus, for example, a plea by the criminal that he 
 is not the person attainted when an interval exists 
 between attainder and execution, a plea in abate- 
 ment, and other such pleas, each raises a collateral 
 issue. 4 Bla. Com. 338, 396. 
 
 COLLATERAL KINSMEN. Those who de- 
 scend from one and the same common an- 
 cestor, but not from one another. 
 
 Thus brothers and sisters are collateral to each 
 other; the uncle and the nephew are collateral 
 kinsmen, and cousins are the same. All kinsmen 
 are either lineal or collateral. 
 
 COLLATERAL LIMITATION. A limita- 
 tion in the conveyance of an estate, giving 
 an interest for a specified period, but making 
 the right of enjoyment depend upon some 
 collateral event; as an estate to A till B 
 shall go to Rome. Park, Dow. 163 ; 4 Kent 
 128; 1 Washb. R. P. 215. 
 
 COLLATERAL SECURITY. A separate 
 obligation attached to another contract to 
 guaranty its performance. The transfer of 
 property or of other contracts. to insure the 
 performance of a principal engagement. See 
 Lochrane v. Solomon, 38 Ga. 292; Mervin v. 
 Sherman, 9 la. 331. 
 
 The property or securities thus conveyed 
 are also called collateral securities ; 1 Pow. 
 Mortg. 393 ; 2 id. 666, n. 871 ; 3 id. 944, 1001 ; 
 Munn v. McDonald, 10 Watts (Pa.) 270. See 
 Pledge; Chattel Mortgage. 
 
 COLLATERAL UNDERTAKING. A con- 
 tract based upon a pre-existing debt, or oth- 
 
 er liability, and including a promise to pay, 
 made by a third person, having immediate 
 respect to and founded upon such debt or 
 liability, without any new consideration mov- 
 ing to him. Elder v. Warfield, 7 Har. & J. 
 (Md.) 391. 
 
 COLLATERAL WARRANTY. Warranty 
 as to an estate made by one who was an- 
 cestor to the heir thereof, either actually or 
 by implication of law, in respect to other 
 property, but who could not have been so in 
 respect to the estate in question. 
 
 Warranty made where the heir's title to 
 the land neither was nor could have been 
 derived from the warranting ancestor. 
 Termes de la Ley. 
 
 Collateral warranty Is spoken of as "a mode of 
 common assurance." The statute of Gloucester 
 being silent as to a collateral warranty, a warranty 
 of a collateral ancestor, whose heir the issue in tail 
 might be descending upon the latter, would bind 
 him without assets by force of the common law. 
 Therefore, by getting a collateral relation, whose 
 heir the Issue in tail was to be, to concur in the 
 alienation and bind himself and his heirs to war- 
 ranty, the statute De Donis was successfully evaded. 
 
 Thus, if a tenant in tail should discontinue the 
 tail, have issue and die, and the uncle of the issue 
 should release to the discontinuee and die without 
 issue, this is a collateral warranty to the Issue in 
 tail. Littleton § 709. The tenant in tail having 
 discontinued as to his issue before his birth, the 
 heir in tail was driven to his action to regain pos- 
 session upon the death of his ancestor tenant in 
 tail; and in this action the collateral warranty 
 came in as an estoppel. 2 Washb. R. P. 670. 
 
 The heir was barred from ever claiming 
 the land, and, in case he had assets from 
 the warranting ancestor, was obliged to give 
 the warrantee other lands in case of an evic- 
 tion. 4 Cruise, Dig. 436. 
 
 By the statute of Gloucester, 6 Edw. I. c. 
 3, tenant by the curtesy was restrained from 
 making such warranty as should bind the 
 heir. By a favorable construction of the 
 statute De Donis, and by the statute 3 & 4 
 Will. IV. c. 74, tenants in tail were deprived 
 of the power of making collateral warranty. 
 By 11 Hen. VII. c. 20, warranty by a tenant 
 in dower, with or without the assent of her 
 subsequent husband, was prevented; and 
 finally 4 & 5 Anne, c. 16, declares all war- 
 ranties by a tenant for life void against the 
 heir, unless such ancestor has an estate of 
 inheritance in possession. See Co. Litt. 373, 
 Butler's note [32S] ; Stearns, R. Act. 135, 372. 
 
 It is doubtful if the doctrine has ever pre- 
 vailed to a great extent in the United States, 
 and the statute of Anne has not been gener- 
 ally adopted in American statute law, al- 
 though re-enacted in New York ; 4 Kent 
 *469 ; and in New Jersey ; Den v. Crawford, 
 8 N. J. L. 106. It has been adopted and is 
 in force in Rhode Island ; Sisson v. Seabury, 
 1 Sumn. 235, Fed. Cas. No. 12.913; and in 
 Delaware ; Ford's Lessee v. Hays, 1 Harr. 
 50, 23 Am. Dec. 369. In Kentucky and Vir- 
 ginia, it seems that collateral warranty binds 
 the heir to the extent of assets descended ; 
 Doe v. Moore, 1 Dana (Ky.) 59. In Pennsyl-
 
 COLLATERAL WARRANTY 
 
 521 COLLECTOR OF THE CUSTOMS 
 
 vania, the statute of Gloucester is in force, 
 but the statute of Anue is not, and a col- 
 lateral warranty of the ancestor, with sulli- 
 cient real assets descending to the heirs, 
 bars them from recovering the lands war- 
 ranted ; Carson v. Cemetery Co., 104 Pa. 575. 
 See 2 Bla. Com. 301; 2 Washb. R. P. 6G8. 
 If the learning' of collateral warranty has 
 been called dillicult, it is simply because the 
 law of warranty came to be turned from the 
 purpose of its introduction, — that of protec- 
 tion and defence, — and fashioned into a rem- 
 edy to meet an entirely different purpose. 
 Later, collateral warranty ceased to be used 
 for the purpose of barring estates tail, and 
 its use could never have been universal. 
 Rawle, Cov. for Title, sees. 8, 9. See Litt. § 
 709; 12 Mod. 513; Year Book 12 Edw. IV. 
 19; Tudor, Lead. Cas, R. P. 695; Pig. Re- 
 cov. 9. 
 
 COLLATERALES ET SOCII. The former 
 title of masters in chancery. 
 
 C0LLATI0 B0N0RUM. A collation of 
 goods. 
 
 COLLATION. In Civil Law. The suppos- 
 ed or real return to the mass of the succes- 
 sion which an heir makes of the property he 
 received in advance of his share or other- 
 wise, in order that such property may be di- 
 vided together with the other effects of the 
 succession. See Succession of Thompson, 9 
 La. Ann. 96. 
 
 As the object of collation is to equalize 
 the heirs, it follows that those things are 
 excluded from collation which the heir ac- 
 quired by an onerous title from the ancestor ; 
 that is, where he gave a valuable considera- 
 tion for them. And, upon the same principle, 
 if a co-heir claims no share of the estate, he 
 is not bound to collate. Qui non vult hered- 
 itatem non cogitur ad collationem. It cor- 
 responds to the common law hotchpot ; 2 Bla. 
 Com. 517. 
 
 In Ecclesiastical Law. The act by which 
 the bishop who has the bestowing of a bene- 
 fice gives it to an incumbent. 
 
 Where the ordinary and patron were the same 
 person, presentation and institution to a benefice 
 became one and the same act; and this was called 
 collation. Collation rendered the living full except 
 as against the king; 1 Bla. Com. 391. An advowson 
 under such circumstances is termed collative ; 2 
 Bla. Com. 22. 
 
 In Practice. The comparison of a copy 
 with its original, in order to ascertain its 
 correctness and conformity. The report of 
 the officer who made the comparison is also 
 called a collation. 
 
 COLLECTOR. One appointed to receive 
 taxes or other impositions: as, collector of 
 taxes, collector of militia fines, etc. A person 
 appointed by a private person to collect the 
 credits due him. 
 
 COLLECTOR OF THE CUSTOMS. An of- 
 ficer of the United States, appointed for the 
 
 term of four years. Rev. Stat. U. S. § 2C13. 
 His general duties are defined in § 2 
 
 COLLEGA. In Civil Law. One invested 
 with joint authority. A ie; an as- 
 
 sociate. Black, L Diet. 
 
 COLLEGE. An organized collection or as- 
 semblage of persons. A civil corporation, so- 
 ciety, or company, having, in general, some 
 literary object 
 
 The assemblage of the cardinals at Rome is called 
 a college. The body of presidential electors is called 
 the electoral college, although the whole body never 
 come together. 
 
 A qualified person is prima facie entitled 
 to register as a student in a university ; Glea- 
 son v. University, 104 Minn. 359, 116 N. W. 
 650; but in Dartmouth College v. Wood- 
 ward, 4 Wheat. 518, 4 L. Ed. 629, Marshall, 
 C. J., said: "No individual youth has a vested 
 interest in the institution which can be 
 asserted in a court of justice." Refusal of 
 an incorporated medical college to admit ne- 
 gro students does not deny them any con- 
 stitutional privilege, for private institutions 
 of learning, though incorporated, may ' se- 
 lect those whom they will receive, and may 
 discriminate on account of sex, age, pro- 
 ficiency in learning or otherwise r Booker v. 
 Medical College, 156 Mich. 95, 120 N. W. 
 5S9, 24 L. R. A. (N. S.) 447. 
 
 Mandamus was held the proper remedy to 
 remove a professor after the professorship 
 had been abolished; People v. Medical Col- 
 lege, 10 Abb. N. C. (N. Y.) 122; or to prevent 
 an application on behalf of a colored boy to 
 be admitted; State v. Maryland Enstito 
 Md. 643, 41 Atl. 126; or to compel the admis- 
 sion of a woman as a student in a law col- 
 lege; Foltz v. Hoge, 54 Cal. 28; or to compel 
 the admission of a doctor to the College of 
 Physicians; 4 Burr. 21S6. But it will not 
 lie, on the relation of a medical college, to 
 eorapel the State Board of Medical Examin- 
 ers to recognize it as a medical institution in 
 good standing; State v. Coleman, 64 Ohio St. 
 377, 60 N. E. 568, 55 L. R. A. 105. 
 
 A college cannot dismiss a student without 
 cause; Booker v. College, 156 Mich. 95, 120 N. 
 W. 589, 24 L. R. A. (N. S.) 417 : mandamus to 
 reinstate a student who has been expelled has 
 generally been refused; Dunn's Case. '.) Pa. 
 C. C. 417; a college may forbid its students 
 to join a secret society, and a student who 
 does so may be expelled ; People v. College. 
 40 111. 1S6. Where a college degree was 
 withheld from a student who had satisfac- 
 torily passed his examinations, mandamus 
 was refused in State v. Medical College, 128 
 Wis. 7, 106 N. W. 116, 3 L. R. A. (N. S.) 1115, 
 116 Am. St. Rep. 21, 8 Ann. Cas. 407 ; People 
 v. School, 6S Hun 118, 22 N. Y. Supp. 
 contra, People v. Medical College, 60 Hun 
 107, 14 N. Y. Supp. 490, affirmed iu 12S N. Y. 
 621, 28 N. E. 253, it appearing that the re- 
 fusal was merely arbitrary ; and so in State 
 v. Medical College, 81 Neb. 533, 116 N. W.
 
 COLLEGE 
 
 522 
 
 COLLEGE 
 
 294, 17 L. R. A. (N. S.) 930. The reason for 
 granting the writ is usually a so-called con- 
 tractual relation arising between college and 
 student on matriculation ; but such relation 
 was denied in 31 Law Jour. 119, where an 
 action for breach of contract was brought. 
 The better view is said in England to be that 
 the sole jurisdiction to settle such questions 
 rests in the visitor to the college or uni- 
 versity, and not in the courts ; 33 L. J. Rep. 
 (Ch.) 625. Mandamus will not lie to compel 
 a college to issue a diploma ; State v. Medi- 
 cal College, 128 Wis. 7, 106 N. W. 116, 3 L. 
 R. A. (N. S.) 1115, 116 Am. St. Rep. 21, 80 
 Ann. Cas. 407. A diploma is not necessary 
 to granting of a degree, for a vote that a 
 degree be conferred on a person invests him 
 with such degree ipso facto; Wright v. 
 Lanckton, 19 Pick. (Mass.) 2S8. 
 
 An instructor's relation with a school is 
 ordinarily a purely contractual one; Butler 
 v. Regents of University, 32 Wis. 124 ; Trus- 
 tees of University v. Walden, 15 Ala. 655; 
 Board of Regents v. Mudge, 21 Kan. 223. 
 
 In the absence of a statute providing the 
 manner for the dissolution of a college cor- 
 poration, it may dissolve itself by a voluntary 
 surrender of its franchise; People v. Col- 
 lege, 38 Cal. 166; and while a palpable mis- 
 use of the powers is ground for its dissolu- 
 tion; State v. College Co., 63 Ohio St. 341, 
 58 N. E. 799, 52 L. R. A. 365; a partial de- 
 cay of one department, caused by students 
 refusing to take that special course, would 
 not be ground for forfeiture ; State v. Col- 
 lege, 32 Ohio St. 487. A statute providing 
 that credit for certain purposes is not to be 
 given to students who are minors attending 
 a college, unless the assent of some officer 
 of the college be obtained, is a proper exer- 
 cise of legislative functions ; Soper v. Col- 
 lege, 1 Pick. (Mass.) 177, 11 Am. Dec. 159; 
 Morse v. State, 6 Conn. 9 ; 18 Q. B. 647. 
 
 The board of regents of a state college 
 cannot exact a fee of students to be used for 
 maintenance of the Y. M. C. A. or Y. W. C. 
 A.; Connell v. Gray, 33 Okl. 591, 127 Pac. 
 417, 42 L. R. A. (N. S.) 336. 
 
 Notwithstanding the agreement of a uni- 
 versity to educate five boys without cost, to 
 be appointed annually by the mayor of a 
 city, in consideration of exemption from tax- 
 es, it may charge a free student a laboratory 
 fee to cover material actually used and de- 
 stroyed by him in the laboratory courses; 
 City of New Orleans v. Board of Adm'rs, 123 
 La. 550, 49 South. 171. 
 
 In a suit for injuries suffered at a uni- 
 versity foot ball game by the collapse of the 
 seats, the game being under the auspices of 
 a university athletic association, it was held 
 that it was a branch of the university; 
 George v. Athletic Ass'n, 107 Minn. 424, 120 
 N. W. 750. 
 
 One who conducts a business college in 
 Philadelphia without the authority to con- 
 
 fer degrees will be restrained from describ- 
 ing his school as a university ; it appearing 
 that by the use of the name "University of 
 Philadelphia" persons intending to corre- 
 spond with the "University of Pennsylvania* 
 were misled, the latter institution was enti- 
 tled to protection against the use of the word 
 "university" ; Com. v. Banks, 198 Pa. 397, 48 
 Atl. 277. A business college is not entitled to 
 exemption from taxation as a general edu- 
 cational institution ; Parsons Business Col- 
 lege v. City of Kalamazoo, 166 Mich. 305, 131 
 N. W. 553, 33 L. R. A. (N. S.) 921. 
 See Degree. 
 
 COLLEGE FRATERNITIES. Individual 
 members of a college fraternity may enjoin 
 the unauthorized withdrawal of the charter 
 of the chapter to which they belong ; the 
 membership would remain to them in spite 
 of the withdrawal. The fact that a college 
 has not the proper material for the mainte- 
 nance of a Greek letter fraternity is no 
 ground for the withdrawal of its fraternity 
 charter by the head council, where there is 
 no provision in the constitution or by-laws 
 authorizing such withdrawal, except for a 
 violation of the rules and usages of the 
 fraternity. A disclosure by charter mem- 
 bers of the constitution of a Greek letter 
 fraternity and of certain secrets relative to 
 an attempt by the grand council to withdraw 
 a charter was not such a violation of the 
 constitution and by-laws as would authorize 
 the fraternity to forfeit their charter, where 
 such violation was rendered necessary by the 
 fraternity itself. Heaton v. Hull, 51 App. 
 Div. 126, 64 N. Y. Supp. 279. See 42 Am. 
 L. Rev. 170. 
 
 COLLEGIUM (Lat. colUgere, to collect). 
 In Civil Law. A society or assemblage of 
 those of the same rank or honor. An army. 
 A company, in popular phrase. The whole 
 order of bishops. Du Cange. 
 
 Collegium illicitum. One which abused its 
 right, or assembled for any other purpose 
 than that expressed in its charter. 
 
 Collegium Ucitum. An assemblage or so- 
 ciety of men united for some useful purpose 
 or business, with power to act like a single 
 individual. 
 
 All collegia were illicita which were not 
 ordained by a decree of the senate or of the 
 emperor ; 2 Kent 269. 
 
 A corporation. 
 
 COLLIERY, C0ALERY. A coal mine, 
 coal pit, or place where coals are dug, with 
 the engines and machinery used in 'discharg- 
 ing the water and raising the coal. Web- 
 ster. 
 
 Colliery is a collective compound including 
 many things, and is not limited to the lease 
 and fixtures of a tunnel, drift, shaft, slope, 
 or vein from which the coal is mined ; Carey 
 v. Bright, 58 Pa. 85.
 
 COLLISION 
 
 523 
 
 COLLISION 
 
 COLLISION. The act of ships or vessels 
 striking together, or of one vessel running 
 against or foul of another. 
 
 It may happen without fault, no blame 
 being imputable to those in charge of either 
 vessel. In such case, in the English, Ameri- 
 can, and French courts, each party must bear 
 bis own loss; Pardessus, Droit Oomm. p. 4, 
 t. 2, c. 2, § 4; General Mutual Ins. Co. v. 
 Sherwood, 14 How. (l\ S.) 352, 14 L. Ed. 
 452; 1 Pars. Sh. & Adm. 525. 
 
 A collision by inevitable accident is when 
 a collision is caused exclusively by natural 
 causes, without any fault on the part of the 
 owners or those in charge; The Sea Gull, 23 
 Wall. (C. S.) 169, 23 L. Ed. 90; Killam v. 
 Eri, 3 Cliff. 456, Fed. Cas. No. 7.7G5; Samp- 
 son v. U. S., 12 Ct. CI. 4S0. It must appear 
 that neither vessel was in fault; Sterling v. 
 The Jennie Cusbman, 3 Cliff. 63G, Fed. Cas. 
 No. 13,375. Where the captain and crew, ex- 
 cept the second mate, were taken sick, and a 
 collision occurred, through the absence of a 
 lookout, it was held to be inevitable accident; 
 The Southern Home, 8 Reporter 3S9, Fed. 
 Cas. No. 13,187. See also The F. W. Gifford, 
 7 Biss. 249, Fed. Cas. No. 5,166. 
 
 It may happen by mutual fault, that is, 
 by the misconduct, fault, or negligence of 
 those in charge of both vessels ; The C. R. 
 Stone, 49 Fed. 475; The Brinton, 50 Fed. 
 581; The T. B. Van Houten, 50 Fed. 590; 
 The Riversdale, 53 Fed. 2S6 ; The Allen Green, 
 60 Fed. 459, 9 C. C. A. 73. In such case, 
 neither party has relief at common law ; 3 
 Kent 231; 3 C. & P. 528; Barnes v. Cole, 
 21 Wend. (N. Y.) 188 ; Hartfield v. Roper, 21 
 Wend. (N. Y.) 615, 34 Am. Dec. 273 ; Brown 
 v. Maxwell, 6 Hill (N. Y.) 592, 41 Am. Dec. 
 771; Parker v. Adams, 12 Mete. (Mass.) 415, 
 46 Am. Dec. 694 (though now otherwise in 
 England by the Judicature Act 1S73) ; but 
 the maritime courts aggregate the damages 
 to both vessels and their cargoes, and then 
 divide the same equally between the two ves- 
 sels; 3 Kent 232 ; The Teutonia, 23 Wall. (U. 
 S.) 84, 23 L. Ed. 44 ; The Clara, 49 Fed. 765 ; 
 The State of California, 49 Fed. 172, 1 C. C. 
 A. 224 ; The Bolivia, 49 Fed. 169, 1 C. C. A. 
 221; Fristad v. The Premier, 51 Fed. 766; 
 The Marion, 56 Fed. 271 ; The Manitoba, 122 
 U. S. 97, 7 Sup. Ct. 115S, 30 L. Ed. 1095. See 
 1 Swab. 60. Where two tugs and two scows 
 in tow by one of them are all in fault, each 
 is liable for an equal share of the damages, 
 even though more than one be owned by the 
 same person ; The Eugene F. Moran, 212 U. 
 S. 466, 29 Sup. Ct. 339, 53 L. Ed. 600. Where 
 the collision is by intentional wrong of both 
 parties, the libel will be dismissed; The R. 
 L. Maybey, 4 Blatch. 88, Fed. Cas. No. 11,- 
 870. 
 
 It may happen by inscrutable fault, that 
 is, by the fault of those in charge of one or 
 bo^h vessels and yet under such circum- 
 stances that it is impossible to determine I 
 
 who is in fault. In such case the Ameri- 
 can courts of adniirahy and I san 
 maritime courts formerly the rule 
 of an equal division of ii 
 age; The Comet, 1 Abb. D. 
 No. 3,050; The Scioto, 2 \\ 
 360, Fed. ('as. No. 12,508; Bit 
 Law, 290. The English courts have I 
 a remedy in admiralty; 2 Hagg. Adm. 145; 
 6 Thornt. 240; and see The Kallisto, 2 Hugh. 
 128, Fed. Cas. No. 7.G00; but it has now been 
 decided by a vast preponderance of authority 
 that there can be no recovery or partial re- 
 covery unless fault be affirmatively shown ; 
 The Jumna, 149 Fed. 173, 79 C. 0. A. 119, 
 following The Clara, 102 U. S. 200, 2'; L. Ed. 
 145; The Sunnyside, 91 U. S. 208, S.\ L. I 
 302. 
 
 It may happen by the fault of those be- 
 longing to one of the colliding vessels, with- 
 out any fault being Imputable to the other 
 vessel. In such case the owners of the vessel 
 in fault must bear the damage which their 
 own vessel has sustained, and are liable as 
 well as their master to a claim for compen- 
 sation from the owners of the other vessel 
 for the damage done to her; 1 Swab. S.:. 17.".. 
 200,211; 3 W. Rob. 2S3; The Narragansett, 
 
 I Blatchf. 211, Fed. Cas. No. 10,017; Vantine 
 v. The Lake, 2 Wall. Jr. 52, Fed. Cas. No. 
 16.S78; Smith v. Condry, 1 How. (U. S.) 2S, 
 
 II L. Ed. 35; Williamson v. Barrett, 13 How. 
 (U. S.) 101, 14 L. Ed. 68; although wilfully 
 committed by the master; Ralston v. State 
 Rights, Crabbe 22, Fed. Cas. No. 11,540; 
 Dusar v. Murgatroyd, 1 Wash. C. C. 13, Fed. 
 Cas. No. 4,199; Dias v. The Revenge, 1 Wash. 
 C. C. 262, Fed. Cas. No. 3.ST7. But see 1 
 W. Rob. 399; 2 id. 502; Wright v. Wilcox, 19 
 Wend. (N. Y.) 343, 32 Am. Dec. 507. 
 
 Where one vessel, clearly shown to be 
 guilty of a fault adequate in itself to have 
 caused a collision, seeks to impugn the oth- 
 er vessel, there is a presumption in favor of 
 the latter, which can only be rebutted by 
 clear proof of a contributing fault, and this . 
 principle is peculiarly applicable to a vessel 
 at anchor, complying with regulations con- 
 cerning lights and receiving Injuries, through 
 the fault of a steamer in motion ; The 
 Oregon, 15S U. S. 1S6, 15 Sup. Ct. S04. 
 L. Ed. 913. If a cargo be damaged by col- 
 lision between two vessels, the owner may 
 pursue both vessels or either, or the own- 
 ers or both, or either; and in case he pro- 
 ceeds against one only, and both are held 
 in fault, be may recover bis entire damagi 
 of the one sued ; In re Eastern Dredging 
 <"o.. L82 Fed. 179; The Beaconsfield, 15S U. 
 S. 303, 15 Sup. Ct. S00, 39 L. Ed. 993. 
 
 These four classes of cases are noted in 2 
 Dods. S5, by Lord Stowell. 
 
 Full compensation is, in general, to be 
 made in such cases for the loss and damage 
 which the prosecuting party has sustained" 
 by the fault of the party proceeded against :
 
 COLLISION 
 
 524 
 
 COLLISION 
 
 2 W. Rob. 279; including all damages which 
 are fairly attributable exclusively to the 
 act of the original wrong-doer, or which 
 may be said to be the direct consequence 
 of his wrongful act; 3 W. Rob. 7, 282; 11 
 M. & W. 228 ; 1 Swab. 200 ; The Narragan- 
 sett, 1 Blatchf. 211, Fed. Cas. No/ 10,017; 
 Vantine v. The Lake, 2 Wall. Jr. 52, Fed. 
 Cas. No. 16,S78; Smith v. Condry, 1 How. 
 (U. S.) 28, 11 L. Ed. 35; The Catharine, 17 
 How. (TL S.) 170, 15 L. Ed. 233 ; The Anna 
 W.. 201 Fed. 58, 119 C. C. A. 396. 
 
 As to limited liability of owners, see Ship. 
 
 For the prevention of collisions, certain 
 rules have been adopted (see Navigation 
 Rules) which are binding upon vessels ap- 
 proaching each other from the time the 
 necessity for precaution begins, and con- 
 tinue to be applicable, as the vessels ad- 
 vance, so long as the means and opportu- 
 nity to avoid the danger remain ; New York 
 & L. IT. S. Mail S. S. Co. v. Rumball, 21 
 How. 372, 16 L. Ed. 144. But, whatever may 
 be the rules of navigation in force at the 
 place of collision, it is apparent that they 
 must sometimes yield to extraordinary cir- 
 cumstances, and cannot be regarded as bind- 
 ing in all cases. Thus, if a vessel neces- 
 sarily goes so near a rock, or the land, that 
 by following the ordinary rules she would 
 inevitably go upon the rock, or get on shore 
 or aground, no rule should prevail over the 
 preservation of property and life ; 1 W. Rob. 
 478, 485; 4 J. B. Moore 314; The Maggie J. 
 Smith, 123 U. S. 349, 8 Sup. Ct. 159, 31 L. 
 Ed. 175; Belden v. Chase, 150 TJ. S. 674, 
 14 Sup. Ct. 264, 37 L. Ed. 1218; but obe- 
 dience to the rules is not a fault, even if a 
 different course would have prevented a col- 
 lision, and the necessity must be clear and 
 the emergency sudden and alarming before 
 an act of disobedience can be excused ; 
 Belden v. Chase, 150 U. S. 674, 14 Sup. Ct. 
 264, 37 L. Ed. 1218. No vessel should un- 
 necessarily incur the probability of a col- 
 lision by a pertinacious adherence to the 
 rule of navigation; 1 W. Rob. 471. 478; 
 Hawkins v. Steamboat Co., 2 Wend. (N. Y.) 
 452; and if it was clearly in the power of 
 one of the vessels which came into collision 
 to have avoided all danger by giving way, 
 she will be held bound to do so, notwith- 
 standing the rule of navigation; 6 Thornt. 
 Adm. 600, 607; Lane v. The A. Denike, 3 
 Cliff. 117, Fed. Cas. No. 8,045. 
 
 All navigation rules pertinent to a given 
 situation are to be construed together, and 
 while each of two approaching vessels has 
 the right to expect the other to navigate in 
 accordance with the rules or a passing 
 agreement, when it becomes evident that 
 either is not doing so, it is the duty of the 
 other to navigate accordingly and take such 
 measures as may seem necessary to avoid a 
 collision; U. S. v. Erie R. Co., 172 Fed. 50, 
 96 C. C. A. 538. But a vessel is not requir- 
 ed to depart from the rule when she can- 
 
 not do so without danger; Biggs v. Barry, 
 2 Curt. C. C. 363, Fed. Cas. No. 1,402 ; Crock- 
 ett v. The Isaac Newton, 18 How. 581, 15 
 L. Ed. 492. 
 
 There must be a lookout properly sta- 
 tioned and kept; and under circumstances 
 of special danger, two ; The Oregon, 158 U. 
 S. 186, 15 Sup. Ct. S04, 39 L. Ed. 943; and 
 the absence of such a lookout is prima 
 facie evidence of negligence ; St. John v. 
 Paine, 10 How. (U. S.) 557, 13 L. Ed. 537; 
 Whitridge v. Dill, 23 How. (U. S.) 448, 16 
 L. Ed. 581; The Scioto, Daveis, 359, Fed. 
 Cas. No. 12,50S ; The Coe F. Young, 49 Fed. 
 167, 1 C. C. A. 219; The Nellie Clark, 50 
 Fed. 585. The rule requiring a lookout ad- 
 mits of no exception on account of size in 
 favor of any craft capable of committing 
 injury; The Marion, 56 Fed. 271. The ab- 
 sence of a lookout is not material where 
 the presence of one would not have availed 
 to prevent a collision ; The Blue Jacket, 144 
 U. S. 371, 12 Sup. Ct. 711, 36 L. Ed. 469. 
 A sailing vessel is entitled to assume that a 
 steam vessel approaching her is being nav- 
 igated with a proper lookout; The Coe F. 
 Young, 49 Fed. 167, 1 C. C. A. 219. By the 
 International Code, rule 8, lights also must 
 be kept; the rule was formerly otherwise 
 in regard to vessels on the high seas ; 2 
 W. Rob. 4; The Delaware v. The Osprey, 
 2 Wall. Jr. 268, Fed. Cas. No. 3,763. See 
 Navigation Rules; The Genesee Chief v. 
 Fitzhugh, 12 How. (U. S.) 443, 13 L. Ed. 
 1058; Haney v. Packet Co., 23 How. (U. S.> 
 287, 16 L. Ed. 562; The Emily, 1 Blatchf. 
 236, Fed. Cas. No. 4,452 ; The Santa Claus, 
 1 Blatchf. 370, Fed. Cas. No. 12,326 ; Carsley 
 v. White, 21 Pick. (Mass.) 254, 32 Am. Dec. 
 259; Simpson v. Hand, 6 Whart (Pa.) 324, 
 36 Am. Dec. 231 ; The Havilah, 50 Fed. 331, 
 1 C. C. A. 519; The Oregon, 158 U. S. 186, 
 15 Sup. Ct. 804, 39 L. Ed. 943. Stu. Adm. 
 Low. C. 222, 242; 1 Thornt. Adm. 592; 6 
 id. 176 ; 7 id. 507 ; 2 W. Rob. 377 ; 3 id. 7, 
 49, 190; 1 Swab. 20. 233. 
 
 The injury to an insured vessel occasioned 
 by a collision is a loss within the ordinary 
 policy of insurance ; 4 Ad. & E. 420 ; 6 N. 
 & M. 713 ; Peters v. Ins. Co., 14 Pet. (U. S.) 
 99, 10 L. Ed. 371 ; General Mut. Ins. Co. v. 
 Sherwood, 14 How. (U. S.) 352, 14 L. Ed. 
 452 ; Nelson v. Ins. Co., 8 Cush. (Mass.) 
 477, 54 Am. Dec. 776; but when the collision 
 is occasioned by the fault of the insured 
 vessel, or the fault of both vessels, the in- 
 surer is not ordinarily liable for the amount 
 of the injury done to the other vessel which 
 may be decreed against the vessel insured ; 
 4 Ad. & E. 420 ; 7 E. & B. 172 ; 40 E. L. & 
 Eq. 54; Mathews v. Ins. Co., 11 N. Y. 9; 
 General Mut. Ins. Co. v. Sherwood, 14 How. 
 (U. S.) 352, 14 L. Ed. 452, and cases cited; 
 but some policies now provide that the in- 
 surer shall be liable for such a loss; 40 
 E. L. & Eq. 54 ; 7 E. & B. 172. 
 
 Damage caused to one vessel by striking
 
 COLLISION 
 
 525 
 
 COLLISION 
 
 upon another vessel's anchor, is within a 
 policy of marine Insurance providing against 
 collisions between vessels ; [1901] 2 K. B. 
 792. 
 
 See Matsunami, Collisions between War- 
 ships and Merchant 
 
 "When the collision was without fault on 
 either side, and occurred in a foreign coun- 
 try, where, In accordance with the local 
 law, the dama equally divided be- 
 
 tween the colliding vessels, the amount of 
 the decree against the insured vessel for 
 its share of the damages suffered by the 
 other vessel was held recoverable uml 
 ordinary policy; Peters v. Ins. Co., 14 Pet. 
 (U. S.) 99. 10 L. Ed. 371. 
 
 The fact that the libellants in a collision 
 had received satisfaction from the in- 
 surers for the vessel destroyed, furnishes 
 no ground of defence for the respondent ; 
 The Monticello v. Mollison, 17 How. (U. S.) 
 152, 15 L. Ed. 68. 
 
 Improper speed on the part of a steamer 
 in a dark night, during thick weather, or 
 In the crowded thoroughfares of commerce, 
 will render such vessel liable for the 
 ages occasioned by a collision; and it is no 
 excuse for such dangerous speed that the 
 steamer carries the mail and is under con- 
 tract to convey it at a greater average speed 
 than that complained of; 3 Hagg. Adm. 
 414; McCready v. Goldsmith, 18 How. (U. 
 S.) 89. 15 L. Ed. 288; The Now York v. 
 Rea, 18 How. (U. S.) 223, 15 L. Ed. 359; 
 Sampson v. Tnited States, 12 Ct. Cls. (U. S.) 
 4S0; The Manistee, 7 Biss. 35, Fed. Cas. No. 
 9,028 ; The Majestic, 48 Fed. 730, 1 C. C. A. 
 78; Fabre v. Steamship Co., 53 Fed. 288, 3 
 C. C. A. 534; The Bolivia, 49 Fed. 169, 1 
 C. C. A. 221 ; The Laurence, 54 Fed. 542, 
 4 C. C. A. 501; The Fulda, 52 Fed. 400; 
 The Trave, 55 Fed. 117 ; The Britannia, 153 
 U. S. 130. 14 Sup. Ct. 795. 3S L. Ed. GC0: 
 The Nacoochee, 137 U. S. 330, 11 Sup. Ct 
 122. 34 L. Ed. 687. 
 
 As between a steamer and a sailing ves- 
 sel, the former must keep out of the way 
 of the latter: The Java, 14 Blateh. 524, Fed. 
 Cas. No. 7,233; The Free State, 91 U. S. 
 200, 23 L. Ed. 299 ; The Blue Jacket. 144 IT. 
 S. 371, 12 Sup. Ct. 711, 36 L. Ed. 469; The 
 Nacoochee, 137 U. S. 330, 11 Sup. Ct. 122. 
 34 L. Ed. 6S7; The Havana, 54 Fed. 411: 
 The Robert Holland, 59 Fed. 200; as be- 
 tween a vessel in motion and one at anchor, 
 with proper lights, the former is ordinarily 
 liable for a collision; The Lady Franklin. 
 2 Low. 220, Fed. Cas. No. 7.9S4; The .1. W. 
 Everman, 2 Hugh. 17, Fed. Cas. No. 7,591. 
 Where a vessel is moored for the night ac- 
 cording to custom along a well-known dock 
 and not projecting beyond the wharf, if run 
 into by a steamer in the fog, she is not at 
 fault because she had no light set and 
 sounded no gongs ; The Express, 48 Fed. 
 323. A vessel at anchor in a fairway must 
 take precautions commensurate with the 
 
 danger she presents to shipping; The Eur- 
 ope, 175 Fed. ." 
 
 A sailing vessel beating in the vidnil 
 :n vessel is not obliged to run oi.' 
 tack, provided her going ahout is not cal- 
 culated t<> mislead or embari 
 
 : The Coe F. Young, -19 Fed. I'm, 1 
 C. C. A. 219. 
 
 An inexperienced oarsman Is guilty of neg- 
 in attempting to cross the path 
 Steamboat hut a short distance in I 
 it ; Sekerak v. Jutte, 153 Pa. 117, 2.3 At 
 As to collisions due to the fault of a pilot, 
 
 sec I'll ii I .'. 
 
 A cause of collision, or collision and dam- 
 age, as it Is technically called, is a suit in 
 rem in the admiralty. 
 
 Iii the Uuited States courts it Is commenced by 
 the filing of a libel and the arrest of the vessel to 
 the mismanagement or fault of which the Injury Is 
 imputed. In the English admiralty the suit is com- 
 menced by the arrest of the vessel and the filing of 
 a petition. In England, the judge is usually ;. 
 at the hearing of the cause by two of the Masters 
 or Elder Brethren of Trinity House, or other ex- 
 perienced shipmasters, whose opinions upon all 
 questions of professional skill involved in the issue 
 are usually adopted by the court; 1 W. Rob. 471; 2 
 Id. 225 ; 2 Chit. Genl. Pr. 514. 
 
 In the American courts of admiralty, the judge 
 usually decides without the aid or advice of experi- 
 enced shipmasters acting as assessors or ad 
 of the court; but the evidence of such shipn 
 as ex}>erts, Is sometimes received In reference to 
 questions of professional skill or nautical u^age. 
 Such evidence Is not, however, admissible to estab- 
 lish a usage in direct violation of those general 
 rules of navigation which have been sanctioned and 
 established by repeated decisions; Wheeler v. The 
 Eastern State, 2 Curt. C. C. 141, Fed. Cas. No. 17.494; 
 The Clement, 2 Curt. C. C. 263, Fed. Cas. No. 2,879. 
 
 When a party sets up circumstances as 
 the basis of exceptions to the general rules 
 of navigation, he is held to strict proof; 1 
 W. Rob. 157, 182, 478 ; 6 Thornt. 007 ; 5 id. 
 170; 3 Hagg. Adm. 321 ; and courts of ad- 
 miralty lean against such exceptions; 11 N. 
 Y. ! . & 353. The admissions of a mas- 
 ter of one of the colliding subse- 
 quently to the collision are admissihle in 
 evidence; 5 E. L. & Eq. 556; and the mas- 
 ters and crew are admissible as witnesses; 
 2 Dods. 83; - Hagg. Adm. 145; 3 id. 321, 
 325 ; 1 Could. 384. 
 
 The general rules in regard to costs in col- 
 lision cases, in the admiralty courts, are that 
 if only one party is to blame, he pays the 
 costs of both; if neither is to blame, and 
 the party prosecuting had apparent 
 for proceeding, each party pays his own 
 costs, hut in the absence of apparent or prob- 
 able cause the libel will be dismissed with 
 costs; if both parties are to blame, th< 
 of both are equally divided, or, more g 
 ally, each party is left to pay his own costs. 
 But costs iu admiralty are always in the 
 discretion of the court, and will be given or 
 withheld in particular cases without regard 
 to these general rules, if the equity of the 
 case requires a departure from them; 2 W. 
 Koh. 213, 244; 5 Jur. 1007; 2 Coukl. 43S
 
 COLLISION 
 
 526 
 
 COLLOQUIUM 
 
 "In case of collision on the high seas be- 
 tween ships of different nationalities, the 
 general maritime law, as understood and ad- 
 ministered in the courts of the country in 
 which the litigation is prosecuted, governs. 
 The Belgenland, 114 U. S. 355, 5 Sup. Ct. 
 S60, 29 L. Ed. 152; In re State Steamship 
 Co., 60 Fed. 1018. This rule is subject to 
 two qualifications: (1) Persons in charge of 
 either ship would not be open to blame for 
 following sailing directions and rules of 
 navigation prescribed by their own govern- 
 ment; The Scotia, 14 Wall. [U. S.] 170, 20 
 L. Ed. 822. (2) If the maritime law, as ad- 
 ministered by the nations to which the ships 
 respectively belong, is the same in respect 
 of a particular matter, it will, if duly prov- 
 ed, be followed in respect of such matter, 
 though it differ from the maritime law as 
 understood in the country of the litigation; 
 The Scotland, 105 U. S. 24, 26 L. Ed. 1001." 
 Moore's notes to Dicey, Conflict of Laws, 670. 
 See Meili, Internat. Civil and Comm. L. 524. 
 
 See Fog ; Lien ; Navigation Rules. 
 
 COLLISTRIGIUM. The pillory. 
 
 COLLOCATION. In French Law. The 
 
 act by which the creditors of an estate are 
 arranged in the order in which they are to 
 be paid according to law. 
 
 The order in which the creditors are plac- 
 ed is also called collocation. 2 Low. C. 9, 
 139. 
 
 COLLOQUIUM. A general averment in 
 an action for slander connecting the whole 
 publication with the previous statement. 1 
 Stark. SI. 431; Heard, Lib. & SI. 228; or 
 stating that the whole publication applies 
 to the plaintiff, and to the extrinsic matters 
 alleged in his declaration. 1 Greenl. Ev. § 
 417. 
 
 An averment that the words were spoken 
 "of or concerning" the plaintiff, where the 
 words are actionable in themselves. 6 Term 
 162; Ellis v. Kimball, 16 Pick. (Mass.) 132; 
 Cro. Jac. 674 ; or where the injurious mean- 
 ing which the plaintiff assigns to the words 
 results from some extrinsic matter, or of 
 and concerning, or with reference to, such 
 matter ; Bloss v. Tobey, 2 Pick. (Mass.) 328 ; 
 Carter v. Andrews, 16 Pick. (Mass.) 1; 11 
 M. & W. 287. 
 
 An averment that the words in question 
 are spoken of or concerning some usage, 
 report, or fact which gives to words other- 
 wise indifferent the peculiar defamatory 
 meaning assigned to them. Shaw, C. J., 
 Carter v. Andrews, 16 Pick. (Mass.) 6. 
 
 Whenever words have the slanderous meaning 
 alleged, not by their own intrinsic force, but by rea- 
 son of the existence of some extraneous fact, this 
 fact must be averred in a traversable form, which 
 averment Is called the inducement. There must 
 then be a colloquium averring that the slanderous 
 words were spoken of or concerning this fact. Then 
 the word "meaning," or innuendo, is used to connect 
 the matters thus introduced by averments and collo- 
 quia with the particular words laid, showing their 
 identity and drawing what is then the legal infer- 
 
 ence from the whole declaration, that such was, un- 
 der the circumstances thus set out, the meaning 
 of the words used. Per Shaw, C. J., Carter v. An- 
 drews, 16 Pick. (Mass.) 6. By the Com. L. Proc. Act 
 (1S52) in England the colloquium has been rendered 
 unnecessary. See Innuendo ; Odger, Lib. & SI. 
 
 COLLUSION. An agreement between two 
 or more persons to defraud a person of his 
 rights by the forms of law, or to obtain an 
 object forbidden by law. 
 
 Collusion and fraud of every kind vitiate 
 all acts which are infected with them, and 
 render them void. See 3 Hagg. Eccl. 130, 
 133; McKay v. Williams, 67 Mich. 547, 35 
 N. W. 159, 11 Am. St. Rep. 597; Winter v. 
 Truax, 87 Mich. 324, 49 N. W. 604, 24 Am. 
 St. Rep. 160 ; 2 Greenl. Ev. § 51 ; Bousquet, 
 Diet. Ahordage. 
 
 In Divorce Law. An agreement between a 
 husband and wife that one of them will 
 commit or appear to commit a breach of 
 matrimonial duties in order that the other 
 may obtain a remedy at law as for a real in- 
 jury. 2 Wait, Act. & Def. 591 ; 2 Lev. & Tr. 
 302; L. R. 1 P. & M. 121. See Reed v. Reed, 
 86 Mich. 600, 49 N. W. 587 ; Belz v. Belz, 33 
 111. App. 105. Such an agreement is a fraud 
 upon the court where the remedy is sought ; 
 Hopkins v. Hopkins, 39 Wis. 167; and will 
 bar a divorce ; L. R. 1 P. & M. 121 ; 2 Bish. 
 Mar. Div. & Sep. 251. 
 
 "The authorities are uniform in holding 
 that any contract between the parties, .hav- 
 ing for its object the dissolution of the mar- 
 riage contract, or facilitating that result, 
 such as an agreement by the defendant in 
 the pending action for divorce to withdraw 
 his or her opposition and to make no de- 
 fense, is void as contra oonos mores, and 
 any note given in consideration thereof is 
 void." Adams v. Adams, 25 Minn. 72 ; Weeks 
 v. Hill, 38 N. H. 199. This was quoted by 
 Sulzberger, J., in Pietz v. Pietz, 20 Dist R. 
 (Pa.) 311. The fact that defendant voluntarily 
 appears, without service, and makes no de- 
 fense, is not of itself collusion, but the court 
 will, in such case, narrowly examine the evi- 
 dence; Lyon v. Lyon, 13 Dist. Rep. (Pa.) 
 623. A mere mutual desire to be divorced 
 will not defeat the granting of the decree 
 when there is no collusion between the par- 
 ties for the purpose of making evidence; 
 Taylor v. Taylor, 35 Pa. Co. Ct. 385. In 
 Dunbar v. Dunbar, 190 U. S. 340, 23 Sup. 
 Ct. 757, 47 L. Ed. 1084, while the husband 
 and wife were living apart, the husband 
 told the wife that if she would not contest 
 divorce proceedings he would make pro- 
 vision for her support. The court, in hold- 
 ing that a bond for such provision was not 
 discharged in bankruptcy, said that it might 
 be considered as in the nature of an ordinary 
 alimony decree. 
 
 COLONIAL LAWS. The laws of a colony. 
 
 In the United States the term is used to 
 designate the body of law in force in the 
 colonies of America at the time of the com-
 
 COLONIAL LAWS 
 
 527 
 
 COLOR 
 
 mencement of our independence, which was, 
 in general, the common law of England, 
 with such modifications as the colonial ex- 
 perience had introduced. The colonial law- 
 is thus a transition state through which our 
 present law is derived from the English 
 common law. 
 
 In England the term colonial law is used 
 with reference to the present colonies of 
 that realm. See Colony. 
 
 COLON US (Let). In Civil Law. A serf 
 attached to the soil and whose descendants 
 so continued. Whilst the coloni were not 
 really servi, and in many respects were held 
 to be ingenui, they were not permitted to 
 remove from the place on which they were 
 born into this status. They paid rent to 
 the owner of the land and generally in kind. 
 Those who were coloni liberi had well-as- 
 certained rights of property as against the 
 owner of the land, and were subject to few 
 other obligations; while another class, call- 
 ed censiti, had no property, and what they 
 might acquire was acquired for the master. 
 Howe, Civ. L. (2d ed.) 152. 
 
 It is thought by Spence not improbable that many 
 of the ceorls were descended from the coloni brought 
 over by the Romans. The names of the coloni and 
 their families were all recorded in the archives of 
 the colony or district. Hence they were called 
 adscriptitii. 1 Spence, Eq. Jur. 51. 
 
 COLONY. A union of citizens or subjects 
 who have left their country to people an- 
 other, and remain subject to the mother- 
 country. U. S. v. The Nancy, 3 Wash. C. C. 
 287, Fed. Cas. No. 15,854. 
 
 A tract of territory subordinate to the 
 inhabitants of a different tract of country, 
 and ruled by authorities wholly or in part 
 responsible to the main administration, in- 
 stead of to the people of their own region, 
 quoted by J. B. Thayer (Legal Essays 166) 
 from Prof. Hart. 
 
 In conquered or ceded countries, their 
 laws remain in force until changed, but 
 where a colony is planted in an uninhabited 
 country, the colonists carry with them all 
 the English laws that are applicable to their 
 condition ; 1 Steph. Com. 62. 
 
 The country occupied by the colonists. 
 
 A colony differs from a possession or a 
 dependency. See Dependency. 
 
 A province of Canada is not a British 
 colony or dependency ; [1011] 2 Ch. 68. 
 
 See Burge, Colonial Laws, by Renton & 
 Phillimore. 
 
 COLOR. In Pleading. An apparent but 
 legally insufficient ground of action ad- 
 mitted to subsist in the opposite party by 
 the pleading of one of the parties to an ac- 
 tion. 3 Bla. Com. 309; 4 B. & C. 547. To 
 give color is to give the plaintiff credit for 
 having an apparent or prima facie right of 
 action, independent of the matter intro- 
 duced to destroy it, In order to introduce 
 new matter in avoidance of the declaration. 
 It was necessary that all pleadings in con- 
 
 fession and avoidance should give color. 
 See 3 Bla. Com. 309, n.; 1 Chit. PL 531. 
 i $s color is a I latter pl< 
 
 by the defendant, from which the plaintiff 
 seems to have a good cai. 
 in truth only an appearance or culur of 
 cause. Bacon, Abr. / 1, 4 ; 1 I 
 
 PL 530. It was not allowed in the plaintiff 
 to traverse the colorable iven; 
 
 and it thus became Dec — ary I r the 
 
 plea on which the defendant intended to 
 rely. 
 
 Implied color is that which arises from I 
 nature of the defence; as where the 6 
 consists of matter of law, the facts being ad- 
 mitted but their legal sufficiency denied by 
 matters alleged in the plea. 1 Chit PL 
 528; Steph. PL 206. 
 
 By giving color the defendant could re- 
 move the decision of the case from before 
 a jury and introduce matter in a special 
 plea, which would otherwise oblige him to 
 plead the general issue; 3 Bla. Com. 309. 
 
 The colorable right must be plausible or 
 afford a supposititious right such as might 
 induce an unlearned person to imagine it 
 sufficient, and yet it must be in legal strict- 
 ness inadequate to defeat the defendant's 
 title as shown in the plea; Comyns, Dig. 
 Pleading; Keilw. 1036; 1 Chit. PL 531 ; 4 * 
 Dane, Abr. 552; Archb. PL 211. 
 
 COLOR OF OFFICE. A pretence of off. 
 cial right to do an act made by one who 
 has no such right 9 East 364. Such person 
 must be at least a de facto officer ; Burrall 
 v. Acker, 23 Wend. (N. Y.) 606, 35 Am. Dec. 
 582. 
 
 An act wrongfully done by an officer, un- 
 der the pretended authority of his office, 
 and grounded upon corruption, to which the 
 office is a mere shadow of color. Griffiths 
 v. Hardenbergh, 41 N. Y. 4G4. 
 
 COLOR OF TITLE. In Ejectment. An 
 apparent title to land founded upon a writ- 
 ten instrument, such as a deed, levy of exe- 
 cution, decree of court, or the like. 3 Wait. 
 Act. & Def. 17; Brooks v. Bruyn, 35 111. 39 
 Torrey v. Forbes, 94 Ala. 135, 10 South. 320. 
 Color of title, for the purpose of advei 
 possession under the statute of limitations! 
 is that which has the semblance or appear- 
 ance of title, legal or equitable, but which, 
 in fact, is no title: Sharp v. Furnace Co., 
 100 Va. 27, 40 S. E. 103; that which i- 
 title in appearance, but not in reality ; 
 
 ■ 1 v. Conrad, 2 S. D. 334, 50 N. W. 8 
 Dickens v. Barnes, 79 N. O. 190; Cameron 
 v. U. S., 14S U. S. 301. 13 Sup. Ct 595, 
 L. Ed. 4:»9; Lindt v. 1 ihloin, 116 la. 48, 89 
 X. W. 214; an apparent right; Newlin v. 
 Rogers, 6 Kan. App. 910, ."1 Pa-c. 315; a 
 title prima facie good; Farley v. Smith, 39 
 Ala. 38; Converse v. R. Co., 195 111. 204, 62 
 N. E. 8S7. 
 
 A writing upon Its face professing to pas.s 
 title, but which does not do so, either from
 
 COLOR OF TITLE 
 
 528 
 
 COLOR OF TITLE 
 
 a want of title in the person making it, ov 
 from the defective conveyance used; a title 
 that is imperfect, but not so obviously so 
 that it would be apparent to one not skilled 
 in the law ; Williamson v. Tison, 99 Ga. 
 792, 26 S. E. 766 ; Head v. Phillips, 70 Ark. 
 432, 68 S. W. S7S ; Bloom v. Straus, 70 Ark. 
 4S3, 69 S. W. 549, 72 S. W. 563. 
 
 It has been held to be wholly immaterial 
 bow imperfect or defective the writing may 
 be, considered as a deed; if it is in writing, 
 and defines the extent of the claim, it is a 
 sign, semblance or claim of title ; Street v. 
 Collier, US Ga. 470, 45 S. E. 294; Mullan's 
 Adm'r v. Carper, 37 W. Va. 215, 16 S. E. 
 527; that strictly speaking it cannot rest 
 in parol, see Armijo v. Armijo, 4 N. M. 
 (Gild.) 57, 13 Pac. 92. 
 
 A state grant of land, included in an older 
 grant, is color of title ; Weaver v. Love, 146 
 N. C. 414, 59 S. E. 1041; so of a writing 
 signed by the heirs of an owner of lands 
 allotting them to two of their number and 
 relinquishing their own right thereto ; Hen- 
 ry v. Brown, 143 Ala. 446, 39 South. 325; 
 and a patent, whether good against the sov- 
 ereign or void; Bogardus v. Trinity Church, 
 4 Sandf. Ch. (N. Y.) 633; and a record of 
 proceedings in partition ; Lindsay v. Bea- 
 
 . man, 128 N. C. 1S9, 38 S. E. 811. 
 
 Color of title and claim of right are not 
 synonymous terms ; Herbert v. Hanrick, 16 
 Ala. 581. "Claim of title" does not neces- 
 sarily include "color of title" ; Allen v. 
 Mansfield, 108 Mo. 343, 18 S. W. 901. To 
 constitute color of title, there must be a 
 paper title; but claim of title may rest 
 wholly in parol; Hamilton v. Wright, 30 
 la. 480. It has been held that, to give color 
 of title, a conveyance must describe the 
 property; Packard v. Moss, 68 Cal. 123, 8 
 
 ' Pac. 818; Wood v. Conrad, 2 S. D. 334, 50 
 N. W. 95 ; that it must designate a specified 
 interest in the land; Etowah, etc., Mining 
 Co. v. Parker, 73 Ga. 53 ; Wilson v. Johnson, 
 145 Ind. 40, 38 N. E. 38, 43 N. E. 930. 
 
 A tax deed, though void for failure to 
 comply with the statutes, affords color of 
 title; Lantry v. Parker, 37 Neb. 353, 55 N. 
 W. 962; City of Chicago v. Middlebrooke, 
 143 111. 265, 32 N. E. 457; Van Gunden v. 
 Iron Co., 52 Fed. 838, 3 C. C. A. 294. To 
 give color, the conveyance, etc., must be good 
 in form, and profess to convey the title and 
 he duly executed; La Frombois v. Jackson, 
 8 Cow. (N. Y.) 589, 18 Am. Dec. 463 ; Latta 
 v. Clifford, 47 Fed. 614 ; Irey v. Markey, 132 
 Ind. 546, 32 N. E. 309 ; but a deed to a tenant 
 in possession from one who has no title to 
 the land is insufficient as a basis for ad- 
 verse possession; McRoberts v. Bergman, 
 132 N. Y. 73, 30 N. E. 261. A conveyance 
 void on its face is not sufficient; Moore v. 
 Brown, 11 How. (U. S.) 424, 13 L. Ed. 751 ; 
 Marsh v. Weir, 21 Tex. 97. An entry is by 
 color of title when it is made under a bond 
 fide and not pretended claim of title exist- 
 
 ing in another; McCall v. Meely, 3 Watts 
 (ra.) 72. A quit-claim deed is sufficient 
 color of title to support a plea of title by 
 limitation ; Parker v. Newberry, 83 Tex. 428, 
 IS S. W. 815. The deed, 'or color of title, 
 under which a person takes possession of 
 land, serves to define specifically the bound- 
 aries of his claims; Ellicott v. Pearl, 10 Pet. 
 (U. S.) 412, 9 L. Ed. 475. When a disseisor 
 enters upon and cultivates part of a tract, 
 he does not thereby hold possession of the 
 whole tract constructively, unless this entry 
 was by color of title by specific boundaries 
 to the whole tract; color of title, is val- 
 uable only so far as it indicates the extent 
 of the disseisor's claim ; Ege v. Medlar, 82 
 Pa. 99. See Allen v. Mansfield, 108 Mo. 343, 
 18 S. W. 901 ; Sholl v. Coal Co., 139 111. 21, 
 28 N. E. 748. A person taking lands under 
 a judicial sale, though void, has color of 
 title; Irey v. Mater, 134 Ind. 238, 33 N. E. 
 1018; Mullan's Adm'r v. Carper, 37 W. Va. 
 215, 16 S. E. 527. 
 
 See 15 L. R. A. (N. S.) 1178, note; Ad- 
 verse Possession. 
 
 COLORADO. One of the United States of 
 America, being the twenty-fifth state ad- 
 mitted into the Union. 
 
 The territory of which it is composed was ceded 
 by the treaties with France in 1803, and Mexico 
 in 1848. The enabling act was approved March 3, 
 
 1875, and the state was finally admitted August 1, 
 
 1876. The Constitution was adopted in Convention 
 March 14, 1876, and ratified July 1, 1876. It was 
 amended in 1902. See California ; Louisiana. 
 
 Jan. 22, 1913, article XXI added to the Constitution 
 providing for recall from office of public officials, 
 and section 1, article VI, amended by providing for 
 the recall of decisions and section 6, article XX, 
 amended by giving home rule to cities and towns. 
 
 COLORE OFFICII. By color of office. 
 
 COLORED PERSON. This term general- 
 ly refers to one of the negro race. 
 
 There is no legal technical signification to 
 this phrase which the courts are bound judi- 
 cially to know ; Pauska v. Daus, 31 Tex. 74. 
 See Negro. 
 
 COLT. An animal of the horse species, 
 whether male or female, not more than four 
 years old. Russ. & R. 416. 
 
 COMBAT. The form of a forcible encoun- 
 ter between two or more persons or bodies 
 of men ; an engagement or battle. A duel. 
 
 COMBINATION. A union of men for the 
 
 purpose of violating the law. See Strike; 
 Boycott ; Restraint of Trade ; Conspiracy. 
 A union of different elements. A patent 
 may be taken out for a new combination of 
 existing machines; Moody v. Fiske, 2 Mas. 
 112, Fed. Cas. No. 9,745. See Patents. 
 
 C0MBUSTI0 D0M0RUM. Arson. 4 Bla. 
 Com. 272. 
 
 C0MBUSTI0 PECUNIAE. Burning of 
 money ; the ancient method of testing mixed 
 and corrupt money paid into the exchequer, 
 by melting it down. Black, L. Diet.
 
 COMES 
 
 529 
 
 COMITIA 
 
 COMES. In Pleading. A word used in a 
 plea or answer which indicates the presence 
 in court of the defendant. 
 
 In a plea, the defendant says, "And the said C D, 
 by E F, Lis attorney, comes, and defends," etc. The 
 ■word comes, venit, expresses the appearance of the 
 defendant In court. It Is taken from the style of 
 the entry of the proceedings on the record, and 
 formed no part of the viva voce pleading. It Is, 
 accordingly, not considered as, in strictness, con- 
 stituting a part of the plea; 1 Chit. PI. 411; Steph. 
 PL 431'. 
 
 COMES (Lat. comes, a companion). An 
 earl. A companion, attendant, or follower. 
 
 By Spelman the word is said to have been first 
 used to denote the companions or attendants of the 
 Roman proconsuls when they went to their prov- 
 inces. It came to have a very extended applica- 
 tion, denoting a title of honor generally, always 
 preserving this generic signification of companion 
 of, br attendant on, one of superior rank. 
 
 Among the Germans the comites accompanied 
 the kings on their journeys made for the purpose 
 of hearing complaints and giving decisions. They 
 acted in the character of assistant judges. Tacitus 
 de Mor. Germ. cap. 11, 12 ; 1 Spence, Eq. Jur. 66; 
 Spelman, Gloss. Among the Anglo-Saxons, the 
 comites were the great vassals of the king, who at- 
 tended, as well as those of inferior degree, at the 
 great councils or courts of their kings. The term 
 included also the vassals of those chiefs, 1 Spence, 
 Eq. Jur. 42. Comitatus, county, is derived from 
 comes, the earl or earlderman to whom the govern- 
 ment of the district was intrusted. This authority 
 he usually exercised through the vice-comes, or 
 shire reeve (whence our sheriff). The comites of 
 Chester, Durham, and Lancaster maintained an al- 
 most royal state and authority; and these counties 
 have obtained the title of palatine; 1 Bla. Com. 116; 
 County Palatine. The title of earl or comes has 
 now become a mere shadow, as all the authority is 
 exercised by the sheriff (vice-comes) ; 1 Bla. Com. 
 39S. 
 
 COMITAS (Lat.). Courtesy; comity. An 
 indulgence or favor granted another nation, 
 as a mere matter of indulgence, without any 
 claim of right made. 
 
 COMITATUS (Lat. from comes). A coun- 
 ty. A shire. The portion of the country un- 
 der the government of a comes or count. 1 
 Bla. Com. 11G. 
 
 An earldom. Earls and counts were origi- 
 nally the same as the comitates. 1 Ld. 
 Kay in. 13. 
 
 The county court, of great dignity among 
 the Saxons. 1 Spence, Eq. Jur. 42, GG. 
 
 The retinue which accompanied a Roman 
 proconsul to his province. Du Cange. A 
 body of followers; a prince's retinue. Spel- 
 man, Gloss. 
 
 The comitatus was the personal following 
 of professional warriors. Taylor, Jurispr. 
 216. 
 
 COMITES. Persons who are attached to 
 a public minister. As to their privileges, see 
 Respublica v. De Longchamps, 1 Pall. I Pa.) 
 117, 1 L. Ed. 59; U. S. v. Benner, Baldw. 240, 
 Fed. Cas. No. 14.5GS ; Ambassador, 
 
 COMITIA (Lat.). The public assemblies 
 of the Roman people at which all the most 
 important business of the state was trans- 
 acted, including in some cases even the trial 
 Bouv.— 34 
 
 of persons charged with the commissi 
 crime. Anthon, Rom. Antiq. 51. 
 
 Comitia Calata. A session of the COmitia 
 curiata for the purpose of adrogation, the 
 confirmation of wills, and the adoption by an 
 heir of the sacred rites which followed the 
 Inheritance. 
 
 Comitia CJentctmata (called, also, comitia 
 majora). An assemblage of the | 
 ing by centuries. The people actii g la this 
 form elected their own officers, and 
 
 tensive jurisdiction for the trial of 
 crimes. Anthon, Rom. Antiq. 52. 
 
 Comitia Curiata. An assemblage of all 
 adult male citizens. In these assemblii 
 one of the plebs could vote. They were held 
 for the purpose of confirming matters acted 
 on by the senate, for electing certain high 
 officers, and for carrying out certain rel 
 observances. A majority of the votes of the 
 curia" (see Curia) determined the result aft- 
 er the roll of each curia had been determined 
 by a majority of its Taylor, Ju- 
 
 rispr. 56. 
 
 Comitia Triduta. Assemblies to create 
 certain inferior magistrates, elect pi 
 make laws, and hold trials. Their power 
 was increased very materially subsequently 
 to their first creation, and the range of sub- 
 jects acted on became much more extensive 
 than at first. Anthon, Rom. Antiq. V>2 ; I 
 Kent r, i s. 
 
 COMITY. A term designating the practice 
 by which one court follows the decision of 
 another court on a like question, though not 
 bound by the law of precedents to t3 
 The question most frequently arises among 
 the federal courts of different circuits. 
 
 The importance of securing uniformity in 
 the law as administered in l 1 il cir- 
 
 cuits in patent cases is so great that a de- 
 cision of a court of co-ordinate jurisdiction 
 should be followed by this court in every 
 case where the question as pit 
 fairly be regarded as doubtful; Gormley & 
 Jeffery Fire Co. v. U. S. Agency, 177 Fed. 
 691, 101 C. C. A. 479; Pratt v. Wright, 65 
 Fed. 99; Enterprise Mfg. Co. v. 1 
 Fed. 855. 
 
 A decision of the circuit court and the 
 circuit court of appeals, derived from th( 
 cial reports upon the point in issue (profits 
 in a patent ca ■! be of controlling 
 
 weight in another circuit court of appeals 
 both on the ground of comity and also as 
 adjudications entitled to the greatest re- 
 spect; Tall. C. J., In National Foldio 
 & Paper Co. v. Novelty Co., 95 Fed. 996. 
 
 A circuit court should, in the orderly ad- 
 ministration of the law, follow the ruii 
 a circuit court of appeals in another circuit; 
 Coxe, J., in Hale v. HiUiker, 109 Ted. 273; 
 but the courts of one circuit are not control- 
 led by the views of a patent taken by the 
 courts of another circuit, nor absolved from 
 an independent examination of the questions
 
 COMITY 
 
 530 
 
 COMITY 
 
 involved; Archbald, J., in Ciiniotti Unhair- 
 ing Co. v. Fur Refining Co., 120 Fed. 672 ; the 
 district court may decline to follow the 
 weignt of authority in the lower federal 
 courts; McPherson, X, in U. S. v. Exp. Co., 
 119 Fed. 210. 
 
 The circuit court of appeals will follow 
 the decision of another circuit court of ap- 
 peals unless under especially exceptional cir- 
 cumstances ; Pittsburgh Rys. Co. v. Sullivan, 
 16G Fed. 750, 92 C. C. A. 429 ; U. S. v. F. A. 
 Marsily & Co., 165 Fed. 186, 91 C. C. A. 220 ; 
 In re Baird, 154 Fed. 215 ; Gill v. Austin, 157 
 Fed. 234, 84 C. C. A. 677. 
 
 "Comity is not a rule of law, but one of 
 practice, convenience and expediency. It is 
 something more than mere courtesy, which 
 implies only deference to the opinion of oth- 
 ers, since it has a substantial value in secur- 
 ing uniformity of decision, and discouraging 
 repeated litigation of the same question. 
 But its obligation is not imperative. . . • 
 Comity persuades; but it does not command. 
 It declares not how a case shall be decided, 
 but how it may with propriety be decided. 
 It recognizes the fact that the primary duty 
 of every court is to dispose of cases accord- 
 ing to the law and the facts; in a word, to 
 decfde them right. In doing so the judge is 
 bound to determine them according to his 
 own convictions. . . . It is only in cases 
 where, in his own mind, there may be a 
 doubt as to the soundness of his views that 
 comity comes in play and suggests a uni- 
 formity of ruling to avoid confusion, until a 
 higher court has settled the law." Mast, 
 Foos & Co. v. Mfg. Co., 177 U. S. 485, 488, 20 
 Sup. Ct. 708, 44 L. Ed. 856. 
 
 Where questions on an important patent 
 had been decided in two circuits, the Su- 
 preme Court felt itself "bound to defer some- 
 what to this unanimity of opinion on the 
 part of so many learned and distinguished 
 judges" ; Hobbs v. Beach, 180 U. S. 389, 21 
 Sup. Ct 409, 45 L. Ed. 586. 
 
 In the seventh circuit decisions in patent 
 cases in other circuits will not be followed, 
 but each case will stand on its own merits ; 
 Welsbach Light Co. v. Gaslight Co., 100 Fed. 
 648. 
 
 There is no statute or common law rule by 
 which one court is bound to abide by the de- 
 cisions of another court of equal rank. It 
 does so simply for what may be called com- 
 ity among judges. There is no common law 
 or statutory rule to oblige a court to bow to 
 its own decisions ; it does so on the ground 
 of judicial comity; (18S4) 9 P. D. 98, per 
 Brett, M. R. 
 
 The doctrine has no application to foreign 
 corporations. It "was not established for 
 the purpose of giving to any state an un- 
 limited power to dispose of the franchise of 
 acting in a corporate capacity in other states. 
 To obtain a charter for the purpose of evad- 
 ing the laws of a foreign state, under cover 
 of the rule of comity, would be a fraud upon 
 
 the state granting the charter; and to at- 
 tempt to act under such charter in a foreign 
 state would be a fraud upon the latter ;" Na- 
 tional Lead Co. v. Paint Store Co., 80 Mo. 
 App. 247, 271. 
 
 It would seem that the use of the term 
 "comity" in connection with cases where a 
 court of one state under the rule of the con- 
 flict of laws adjudicates a case upon the law 
 of another state is not correct. When a case 
 involves a transaction in another jurisdiction 
 and is properly decided upon the law of 
 that other jurisdiction, under well settled 
 rules of the conflict of laws, the law of that 
 other jurisdiction is applied as a matter of 
 right, and not upon the ground of comity. 
 
 Of this use of the term Mr. Dicey says: 
 "The term 'comity,' as already pointed out, 
 is open to the charge of implying that the 
 judge, when he applies foreign law to a 
 particular case, does so as a matter of ca- 
 price or favor." 
 
 Cases such as the following may perhaps 
 illustrate another class not included in either 
 of the above classes : "A court of equity in 
 one state may enjoin parties from proceeding 
 in a court of law in another state ; but on 
 principles of courtesy, and perhaps of policy, 
 this power should not be exercised where the 
 court of law has a concurrent jurisdiction, 
 which was> first assumed and exercised over 
 the subject matter, unless there should exist 
 some peculiar equitable ground for so doing." 
 Bank of Bellows Falls v. R. Co., 28 Vt. 470. 
 
 COMITY OF NATIONS. The most appro- 
 priate phrase to express the true foundation 
 and extent of the obligation of the laws of 
 one nation within the territories of another. 
 It is derived altogether from the voluntary 
 consent of the latter, and it is inadmissible 
 when it is contrary to its known policy, or 
 prejudicial to its interests. In the silence of 
 any positive rule affirming or denying or re- 
 straining the operation of foreign laws, 
 courts of justice presume the tacit adoption 
 of them by their own government, unless 
 repugnant to its policy, or prejudicial to its 
 interests. It is not the comity of the courts, 
 but the comity of the nation which is ad- 
 ministered and ascertained in the same way 
 and guided by the same reasoning by which 
 all other principles of the municipal law 
 are ascertained and guided. Story, Confl. 
 L. § 38. 
 
 COMMANDER-IN-CHIEF. The president 
 is made commander-in-chief of the army and 
 navy of the United States and of the militia 
 when in actual service, by art. ii. § 2 of the 
 
 constitution. 
 
 COMMANDITE. In French Law. A part- 
 nership in which some furnish money, and 
 others furnish their skill and labor in place 
 of capital. A special or limited partnership. 
 
 Those who embark capital in such a partnership 
 are bound only to the extent of the capital so in- 
 vested; Guyot, Rep. Univ. 
 
 The business being carried on in the name of
 
 COMMANDITE 
 
 531 
 
 COMMENDATUS 
 
 eome of the partners only, it is said to be Just that 
 those who are unknown should lose only the capital 
 which they have invested, from which alone they 
 can receive an advantage. Under the name of lim- 
 ited partnerships, such arrangements are now al- 
 lowed by many of the states ; although no such 
 partnerships are recognized at common law. Trou- 
 bat, Lim. Partn. cc. 3, 4. 
 
 The term includes a partnership containing dor- 
 mant rather than special partners. Story, Partn. 
 § 109. 
 
 COMMENCEMENT OF A DECLARA- 
 TION. That part of the declaration which 
 follows the venue and precedes the circum- 
 stantial statement of the cause of action. It 
 formerly contained a statement of the names 
 of the parties, and the character in which 
 they sue or are sued, if any other than their 
 natural capacity; of the mode in which the 
 defendant had heen brought into court, and 
 a brief statement of the form of action. In 
 modern practice, however, in most cases, 
 little else than the names and character of 
 the parties is contained in the commence- 
 ment. 
 
 COMMENDA. In French Law. The deliv- 
 ery of a benefice to one who cannot hold the 
 legal title, to keep and manage it for a time 
 limited and render an account of the pro- 
 ceeds. Guyot, R£p. Univ. 
 
 In Mercantile Law. An association in 
 which the management of the property was 
 intrusted to individuals. Troubat, Lim. 
 Partn. c. 3, § 27. 
 
 COMMENOAM. In Ecclesiastical Law. 
 The appointment of a suitable clerk to hold 
 a void or vacant benefice or church living 
 until a regular pastor be appointed. Hob. 
 144; Latch 236. 
 
 In Louisiana. A species of limited part- 
 nership. 
 
 It is formed by a contract, by which one person 
 or partnership agrees to furnish another person or 
 partnership a certain amount, either in property or 
 money, to be employed by the person or partnership 
 to whom it is funished, in his or their own name or 
 firm, on condition of receiving a share in the profits 
 in the proportion determined by the contract, and 
 of being liable to losses and expenses to the amount 
 furnished, and no more. A similar partnership ex- 
 ists in France. Code de Comm. 26, 33; Sirey, 12, pt. 
 2, p. 25. He who makes this contract is called, in 
 respect to those to whom he makes the advance of 
 capital, a partner in commendam. La. Civ. Code, 
 art. 2811. 
 
 See also Mitchell, in 3 Sel. Essays, Anglo- 
 Aiuer. L. II. 1S3. 
 
 COMMENDATORS. In Ecclesiastical Law. 
 
 Secular persons upon whom ecclesiastical 
 benefices are bestowed. So called because 
 they are commended and intrusted to their 
 oversight. They are merely trustees. 
 
 COMMENDATORY LETTERS. In Eccle- 
 siastical Law. Such as are written by one 
 bishop to another on behalf of any of the 
 clergy or others of his diocese travelling 
 thither, that they may be received among the 
 faitbful ; or that the clerk may be promoted; 
 or necessaries administered to others. 
 Wharton. 
 
 COMMENDATUS. In Feudal Law. 
 who by voluntary homage puts himself under 
 the protection of a superior lord. Cowell ; 
 Spelman, <;ioss. 
 
 COMMERCE. The various agreements 
 which have for their object facilitating the 
 exchange of the products of the earth <>r the 
 industry of man, with an intent to realize a 
 profit. P&rdessus, Dr. Com. n. i. Any recip- 
 rocal agreements between two persons, by 
 which one delivers to the other a thing, 
 which the latter accepts, and for which he 
 pays a consideration: if the consideration 
 be money, it is called a sale; if any other 
 thing than money, it is called exchange or 
 barter. Domat, Dr. Pub. liv. 1, tit. 7, a. 1, 
 n. 2. 
 
 "Commerce among the several states com- 
 prehends traffic, intercourse, trade, naviga- 
 tion, communication, the transit of persons 
 and the transmission of messages by tele- 
 graph — indeed, every species of commercial 
 intercourse among the several states, but not 
 to that commerce 'completely internal, which 
 is carried on between man and man, in a 
 state, or between different parts of the same 
 state, and which does not extend to or affect 
 other states.'" Harlan. J., in Adair v. TJ. S., 
 208 U. S. 161, 177, 2S Sup. Ct. 277, 52 L. Ed. 
 436, 13 Ann. Cas. 764. 
 
 It has been frequently said by the Supreme 
 Court that commerce includes intercourse, 
 though usually the term is qualified as "com- 
 mercial intercourse" ; Gibbons v. Ogden, 9 
 Wheat. (TJ. S.) 1, 6 L. Ed. 23; U. S. v. E. C. 
 Knight Co., 156 TJ. S. 1, 15 Sup. Ct. 249, 39 
 L. Ed. 325; Welton v. Missouri. 91 U. S. 275, 
 280, 23 L. Ed. 347 ; Pensacola Telegraph Co. 
 v. Western Telegraph Co., 96 U. S. 1, 9, 24 
 L. Ed. 70S; Mobile County v. Kim'. all, 102 
 U. S. 691, 702, 26 L. Ed. 23S (where the 
 phrase is "intercourse and traffic"); Addy- 
 ston I'ipe & Steel Co. v. U. S., 175 0. S. 211, 
 241, 20 Sup. Ct. 96, 44 L. Ed. 136; Lindsay 
 & P. Co. v. Mullen. 176 D. S. 126, 20 Sup. Ct. 
 325, 44 L. Ed. 400; Interstate Commerce 
 Commission v. Brimson, 154 D. S. 4 47. -17<>. 14 
 Sup. Ct. 1125. 3S L. Ed. 1047; Lottery Case. 
 18S TJ. S. 321, 346, 23 Sup. Ct. 321, -17 L, Ed 
 492. The first expression of this was by 
 Marshall, C. J., in Gibbous v. Ogden, 9 
 Wheat. (U. S.) 1, 6 L. Ed. 23; quoted by 
 Fuller, C. J., in U. S. v. Knight Co., 156 TJ. 
 S. 1, 15 Sup. Ct. 249, 39 L. Ed 325; and 
 characterized by White, J., as a "luminous 
 definition" in Northern Securities Co. v. T'. 
 S., 193 C. S. 197, 21 Sup. Ct 436, 4* L. Ed. 
 679, to the effect that commerce is something 
 more than traffic; "it is Intercourse; it de- 
 scribes the commercial Intercourse between 
 nations and parts of nations in all its 
 branches, and is regulated by prescribing 
 rules for carrying on that intercourse." This 
 has been practically, if not literally, quoted 
 in all the cases cited. There is nothing in 
 the decisions to define or limit so broad a 
 term as intercourse, except the word com-
 
 COMMERCE 
 
 532 
 
 COMMERCE 
 
 mercial, usually attached to It As it is 
 hardly likely that the courts iuteuded to say 
 that commerce is intercourse in the sense in 
 which it is denned "communication between 
 persons or places" ; Cent. Diet. ; it is probable 
 that the word was not intended to be used to 
 express more than such intercourse as is con- 
 nected with traffic and transportation with 
 foreign countries or between the states. 
 
 "The word 'commerce' is undoubtedly, in 
 its usual sense, a larger word than 'trade,' 
 in its usual sense. Sometimes 'commerce' is 
 used to embrace less than 'trade' and some- 
 times 'trade' is used to embrace as much as 
 'commerce.' They are ... in this stat- 
 ute (Sherman Act) synonymous;" U. S. v. 
 Patterson, 55 Fed. 605, 639. 
 
 "The term 'commerce' comprehends more 
 tban a mere exchange of goods; it embraces 
 commercial intercourse in all its branches, 
 including transportation of passengers and 
 property by common carriers, whether car- 
 ried on by water or by land;" In re Second 
 Employers' Liability Cases, 223 TJ. S. 1, 46, 
 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. 
 (N. S.) 44; the "movement of persons as 
 well as of property;" Hoke v. U. S., 227 U. 
 S. 308, 33 Sup. Ct. 281, 43 L. R. A. (N. S.) 
 906. 
 
 "Transportation of passengers and freight 
 from one state to another, or through more 
 than one state to another, or through more 
 than one state, whether by land or water, 
 is commerce within the meaning of" the 
 commerce clause, "and the words of the 1 
 grant comprehend every species of commer- 
 cial intercourse, and the power is complete 
 in itself, and may be exercised to its utmost 
 extent without limitations other than such 
 as are prescribed in the Constitution ;" 
 Sweatt v. R. Co., 3 Cliff. (U. S.) 339, 350, 
 Fed. Cas. No. 13,684. 
 
 It includes navigation and the control of 
 all navigable waters of the United States ; 
 Gilman v. Philadelphia, 3 Wall. (U. S.) 713, 
 724, 18 L. Ed. 96; quoted in Scranton v. 
 Wheeler, 179 U. S. 141, 21 Sup. Ct. 48, 45 L. 
 Ed. 126, as well as the improvement of har- 
 bors, bays and rivers ; id., quoting Mobile 
 County v. Kimball, 102 U. S. 691, 26 L. Ed. 
 238. 
 
 Commerce is not a technical legal concep- 
 tion, but a practical one drawn from the 
 course of business ; Savage v. Jones, 225 U. 
 S. 501, 32 Sup. Ct. 715, 56 L. Ed. 1182. 
 
 "Nothing is more complex than commerce"; 
 6 Webster's Wks. 8. 
 
 Retail trade as well as wholesale is in- 
 cluded in the idea of commerce; Gucken- 
 heimer v. Sellers, 81 Fed. 1000. 
 
 Commerce takes its character as inter- 
 state or foreign when it is actually shipped 
 or started in the course of transportation to 
 another state or to a foreign country ; Rail- 
 road Commission of Louisiana v. Ry. Co., 
 
 229 U. S. 336, 33'Sup. Ct. 837, 57 L. Ed. ; 
 
 Reid v. R. Co., 153 N. C. 490, 69 S. E. 618. 
 
 It does not end on the arrival of the train 
 at the terminal, but the breaking up of the 
 train and removal of goods to other trains 
 is part of it ; St Louis, S. F. & T. R, Co. v. 
 Seale, 229 U. S. 156, 33 Sup. Ct. 651, 57 L. 
 
 Ed. ; it continues until the delivery to 
 
 the consignee ; Barrett v. New York, 183 Fed. 
 793; id., 1S9 Fed. 268, where in two hearings 
 it was held that an express company taking 
 goods from a steamer or railroad and trans- 
 porting them through the street of the city 
 to the consignee is still engaged in inter- 
 state commerce. The transportation to be 
 effective under the commerce clause takes ef- 
 fect at the time when it "commences its final 
 movement for transportation" out of the 
 state ; Coe v. Errol, 116 U. S. 517, 6 Sup. Ct 
 475, 29 L. Ed. 715; Diamond Match Co. v. 
 Ontonagon, 1S8 U. S. 82, 23 Sup. Ct. 266, 47 
 L. Ed. 394 ; in both of which cases the prop- 
 erty was to remain within the state of depar- 
 ture until it was convenient to transport it ; 
 but in Ogilvie v. Crawford County, 7 Fed. 
 745, where it was stored awaiting transporta- 
 tion it was protected from taxation ; Ogilvie 
 v. Crawford tJounty, 7 Fed. 745; and to the 
 same effect is Standard Oil Co. v. Bachelor, 
 89 Ind. 1. 
 
 The decisions in cases arising under the 
 federal Employers' Liability Act involve in- 
 teresting questions as to when a workman is 
 engaged in interstate commerce, and the test 
 is said to be — "is the work in question a part 
 of the interstate commerce in which the car- 
 rier is engaged?" Pedersen v. R. Co., 229 
 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. , cit- 
 ing many cases. In that case it was held 
 that one carrying materials (bolts or rivets) 
 to be used in repairing an instrumentality of 
 interstate commerce (a bridge) was engaged 
 in such commerce, although injured by an 
 intrastate train; so also was an engineer 
 while taking his engine from the roundhouse 
 to the track on which were cars to be hauled 
 by him in interstate commerce ; Johnson v. 
 Southern P. Co., 196 U. S. 1, 21, 25 Sup. Ct. 
 158, 49 L. Ed. 363; Lamphere v. R. & Nav. 
 Co., 196 Fed. 336, 116 C. C. A. 156. See Em- 
 ployers' Liability Act. 
 
 Contracts generally seem not to be sub- 
 ject to the commerce clause. It is said by a 
 text-writer on the subject that to bring them 
 within its scope some other element must be 
 involved such as "transportation of property 
 or transmission of intelligence, as by tele- 
 graph" ; Cooke, Com. CI. § 6. 
 
 Insurance is not commerce; Paul v. Vir- 
 ginia, 8 Wall. (U. S.) 16S, 19 L. Ed. 357; 
 Fire Ass'n of Philadelphia v. New York, 119 
 U. S. 110, 7 Sup. Ct. 108, 30 L. Ed. 342; Noble 
 v. Mitchell, 164 U. S. 367, 17 Sup. Ct. 110, 41 
 L. Ed. 472; New York Life Ins. Co. v. Cra- 
 vens, 178 U. S. 389, 20 Sup. Ct. 962, 44 L. Ed. 
 1116; New York Life Ins. Co. v. Deer Lodge 
 
 County, 231 U. S. , 34 Sup. Ct. 167, 58 L. 
 
 Ed. , decided Dec. 15, 1913, but not yet 
 
 officially reported ; nor are contracts for per-
 
 COMMERCE 
 
 533 
 
 COMMERCE 
 
 sonal services between persons in different 
 states; Williams v. Fears, 179 U. S. 270, 21 
 Sup. Ct L28, 45 L. Ed. 186; Smith v. Jai 
 103 Tenn. 673, 54 s. W. 981, 47 L. R. A. 416; 
 b. Boothe v. King, 71 Ala. -190, seems 
 contra. 
 
 Congress has power by the constitution to 
 regulate commerce with foreign nations and 
 among the BeveraJ states, and with the In- 
 dian tribes; Const D. S. Art I, f 8; 1 Kent 
 431; Story, Const g L052. 
 
 The power conferred upon congress by 
 the above clause is exclusive, BO far as it 
 relates to matters within its purview which 
 are national In their character, and admit of 
 a requisite uniformity of regulation 
 Lag all the Btates. That clause was adopt- 
 ed in order to Becure such uniformity against 
 discriminating state legislation. 
 
 Such power is oof restricted by state au- 
 thority; Pembina Consol. Silver Min. & Mill. 
 Co. v. Pennsylvania, 125 U. S. 181, 8 Sup. 
 «'t. 737, ::i L. Ed. 650; but a state statute, 
 winch conflicts with the actual exercise 
 of the powers of congress, must give way to 
 the supremacy of the national authority; 
 Smith v. Alabama, 124 U. S. 463, 8 Sup. Ct. 
 564, 31 L. Ed. 508. 
 
 The power to regulate commerce with 
 the Indian tribes which is included in the 
 commerce clause may cover sales and trans- 
 portation entirely within a state; U. S. v. 
 Holliday, 3 Wall. (U. S.) 407, IS L. Ed. 1S2 
 iwhich was outside of any reservation); or 
 by an Indian to another; U. S. v. Shaw- 
 Mux, 2 Sawy. .".61, Fed. ('as. 16,268; but 
 not a sale to an Indian who had acquired 
 citizenship: In re Heff, 197 U. S. 4S8, 25 
 Sup. Ct. 506, 49 L. Ed. 848; and see Far- 
 rell v. U. S., 110 Fed. 942, 49 C. C. A. 183, 
 which must be considered as overruled by 
 the Supreme Court case. Under the protec- 
 tion of this clause a state tax on goods of 
 a trader with the Indians was void; Foster 
 v. Board of County Com'rs, 7 Minn. 140 
 (Gil. S4); but a contract between a state and 
 Indians was not; In re Narragansett In- 
 dians, 20 R, I. 715, 40 Atl. :;t7. 
 
 The Constitutional PotQ&r of Regulation. 
 The power of congress to regulate foreign 
 commerce is comph te in itself and no in- 
 dividual has a vested right to trade with 
 foreign nations otherwise than subject to 
 the power of congress to determine what 
 and on what terms articles may be import- 
 ed; Buttfield v. Stranahan, 192 U. S. 470, 
 24 Sup. Ct. 349, 48 L. Ed. 525; while every 
 instrumentality of domestic commerce is .sub- 
 ject to state control, every instrumentality 
 of interstate commerce may be reached and 
 controlled by national authority, so far as 
 to compel it to respect the rules for such 
 commerce lawfully established by congress: 
 Northern Securities Co. v. U. S., 193 U. S. 
 350, 24 Sup. Ct. 436, 48 L. Ed. 679. 
 
 The right to carry on interstate commerce 
 is not derived from the state but is a con- 
 
 stitutional right of every citizen of the 
 United States, and < .iloue can limit 
 
 the right of corporations to engage in it; 
 Western Union Telegraph Co. v. Ea 
 216 U. S. 1, 30 Sup. ct. 190, 54 L. Ed. 
 Ludwlg v. Telegraph Co., 2 146, 
 
 30 sup. Ct 280, 54 L. Ed. 123; Pullman Co. 
 v. Kansas. 216 U. S. 
 L. Ed. 378, where it was also held I 
 company doing interstate bu- 
 n-quire permission of the state to enter it. 
 
 i le power of congress over Interstate 
 commerce includes not only imposing 
 lations but insuring their efficiency : ! 
 Employers' Liability i l. 32 
 
 Sup. Ct 169, 56 L. Ed. 327, 38 L. R, A. (N. 
 S.) 44. 
 
 in the Second Employers' Liability i 
 223 D. s. 1,46, 32 Sup. Ct 169, 56 L. I 
 38 E. R. A. i\. S.) it (opinion by v.-, 
 vanter, J.), the court enunciated six distinct 
 it ions as having become "so firmly 
 settled as no longer to 1 i 
 With respect to the construction and enl 
 ment of the federal power to regulate inter- 
 state commerce and to enact such i 
 tion as might be necessary for that pm 
 
 "1. The term 'commerce' comprehends 
 more than the mere exchange of goods. It 
 embraces commercial Intercourse In all its 
 branches, Including transportation ol 
 sengers and property by common carriers, 
 whether carried on by water or by land. 
 
 "2. The phrase 'among the several states' 
 marks the distinction, for the purpose of 
 governmental regulation, bet merce 
 
 which concerns two or more Btates 
 merce which is confined to a single 
 does not affect other states, the power to 
 regulSte the former being conferred upon 
 congress and the regulation of the latl 
 maining with the states severally. 
 
 "3. 'To regulate,' in the sense intended, 
 is to foster, protect, control and restrain, 
 with appropriate regard for the welfare of 
 those who are immediately concerned and 
 of the public at lar§ 
 
 "4. This power over commerce among the 
 states, so conferred upon congress, is com- 
 plete in itself, extends Incidentally to every 
 instrument and agent by which such 
 merce is carried on, may be exerted to its 
 utmost tver every part of such com- 
 
 merce, and is subject to no limitations save 
 such as are prescribed in the constit 
 But. of course, it does not extend to any mat- 
 ter or thing which does not have a real or 
 itial relation to some part of such 
 commerce. 
 
 "."i. Among the instruments and agents to 
 which the power extends are the railroads 
 over which transportation from one 
 to another is conducted, the - and 
 
 ears by which such transportation is affect- 
 ed, and all who are in any wise engaged in 
 such transportation', whether as common 
 carriers or as their employes.
 
 COMMERCE 
 
 534 
 
 COMMERCE 
 
 "6. The duties of common carriers in re- 
 spect of the safety of their employes, while 
 both are engaged in commerce among the 
 states, and the liability of the former for in- 
 juries sustained by the latter, while both 
 are so engaged, have a real or substantial 
 relation to such commerce and therefore 
 are within the range of this power." 
 
 In the Covington Bridge Case, Covington 
 & C. Bridge Co. v. Kentucky, 154 U. S. 204, 
 14 Sup. Ct. 1087, 38 L. Ed. 962, the Supreme 
 Court cases with respect to the power of 
 the states over commerce have been divided 
 into three classes, which division is repeated 
 in Southern R. Co. v. Reid, 222 U. S. 424, 32 
 Sup. Ct. 140, 56 L. Ed. 257 : 
 
 First, those in which the power of the 
 state is exclusive. (Cases in which this pow- 
 er may be exercised by the states are enu- 
 merated infra under the subtitle "When the 
 State Power is Exclusive.") 
 
 Second, those in which the states may act 
 in the absence of legislation by congress. In 
 the case cited, it is said that these cases 
 embrace what may be termed "concurrent 
 jurisdiction," but it does not appear that 
 such jurisdiction ever exists, because the 
 power of the states is terminated instantly 
 by legislation of congress on the subject. 
 (See infra, under subtitle "State Action 
 Valid in Case of Non-Action by Congress.") 
 
 Third, cases in which the action of con- 
 gress is exclusive and the states cannot act 
 at all. (See infra, under subtitle "When the 
 Power of Congress is Exclusive") 
 
 Neither this, nor in fact any other, classi- 
 fication of cases is satisfactory, nor is there 
 any one of them which has been uniformly 
 adhered to by the Supreme Court. 
 
 It may probably be fairly stated as the 
 result of the decisions on the commerce 
 clause that while the states have exclusive 
 jurisdiction of certain local matters, which 
 are controlled by virtue of its reserved police 
 power, and they have also exclusive control 
 of intrastate commerce, the clause of the 
 constitution under consideration gives to 
 congress absolute control of interstate and 
 foreign commerce, to become at its will ex- 
 clusive of all other authority. Upon many 
 subjects affecting this commerce, the states 
 do legislate and their statutes are held valid, 
 but this is solely because congress has not 
 acted, and once it does so, the power of the 
 state ends. State legislation is not forbid- 
 den in matters either local in their opera- 
 tion, or intended to be mere aids to com- 
 merce, for which special regulations can 
 more effectually provide, such as harbors, 
 pilotage, beacons, buoys, and other improve- 
 ments of harbors, bays, and rivers within a 
 state, if their free navigation be not there- 
 by impaired ; congress by its inaction in 
 such matters virtually declares that till it 
 deems best to act, they may be controlled 
 by the states ; County of Mobile v. Kimball, 
 102 U. S. 691, 26 L. Ed. 238, per Field, J. 
 
 As to certain subjects the power of congress 
 is exclusive, and the states cannot inter- 
 fere in any case, and the line of distinction 
 is plainly marked. The cases in which the 
 state may act so long as congress does not, 
 are those which relate to matters of local 
 concern, and which do not require a general 
 uniform regulation applying to the whole 
 country; Rhea v. R. Co., 50 Fed. 16; Card- 
 well v. Bridge Co., 113 U. S. 205, 5 Sup. 
 Ct. 423, 28 L. Ed. 959. On the other hand, 
 as to all matters affecting interstate com- 
 merce, directly or indirectly, national in char- 
 acter and requiring a uniform system or 
 regulation throughout the country, the pow- 
 er of congress to regulate them is exclusive. 
 This in brief seems to be the result of the 
 decisions, which will be found cited in this 
 title under the various subdivisions of the 
 subject. The distinction between cases 
 where the state may or may not act in case 
 of non-action by congress, is well expressed 
 in Leisy v. Hardin, 135 U. S. 100, 10 Sup. 
 Ct. 681, 34 L. Ed. 128, to this effect: The 
 power to regulate it between the states is a 
 unit, but the states may legislate with regard 
 to it in view of local needs and circumstanc- 
 es where particular subjects within its op- 
 eration do not require the application of a 
 general or uniform system, but where the 
 subject does require a uniform system, as 
 between the states, the power is exclusively 
 in congress and cannot be encroached upon 
 by the states. In that very leading case 
 it was held that the right of importation of 
 intoxicating liquors from one state to an- 
 other includes the right of sale in the origi- 
 nal packages at the place where the im- 
 portation terminates ; so also ; Lyng v. Mich- 
 igan, 135 U. S. 161, 10 Sup. Ct. 725, 34 L. 
 Ed. 150. 
 
 It is to be noted, however, in connection 
 with this classification of the cases, that 
 there are many instances in which congress 
 does act upon that intrastate commerce 
 which is primarily within the control of 
 the states, particularly in the case of rail- 
 roads. The operation of a purely intrastate 
 train may be so bound up with the opera- 
 tion of interstate trains or instrumentalities 
 of interstate commerce, that in substance 
 their operation is one and the same thing, 
 and necessarily the subject of one and the 
 same source of regulation. Of such a char- 
 acter are, e. g. examination of eyesight of 
 employes, character of switches, of rails, of 
 interlocking devices, all of which, and the 
 like, are so connected with the operation 
 of the railroad as an entirety, that they con- 
 stitute but a single subject of governmental 
 regulation, which, as it cannot go to both 
 state and general government, goes, of 
 course, when it acts, to the latter; Wabash 
 R. Co. v. U. S., 168 Fed. 1, 93 C. C. A. 393, 
 where the Safety Appliance Act of March 2, 
 1903, is held constitutional and to apply to 
 all carriers of interstate commerce, whether
 
 COMMERCE 
 
 535 
 
 COMMERCE 
 
 the cars and trains are operated between 
 points in the same state, are empty, or the 
 traffic carried is wholly intrastate The 
 movement of a car on a private switch used 
 for transporting cars in Interstate commerce 
 is within the operation nf that act; Gray v. 
 R. Co., 11)7 Fed. 874; and so also is one used 
 between points in the same state by a car- 
 rier engaged in interstate commerce; U. S. 
 v. Ry. Co., 164 Fed. .".IT. 
 
 The commercial clause includes authority 
 to regulate navigation in aid of commerce 
 and to make improvements in navigable 
 waters, such as building a lighthouse in the 
 bed of a stream or requiring navigators of 
 a stream to follow a prescribed course, or 
 directing the water of a navigable stream 
 from one channel to another; South Carolina 
 v. Georgia, 93 U. S. 4, 23 L. Ed. 7S2. See 
 also U. S. v. Duluth, 1 Dill. 4G9, Fed. Cas. 
 No. 15,001. 
 
 Congress may construct or authorize the 
 construction of railroads across the states 
 and territories; California v. R. Co., TJ7 U. 
 S. 1, 8 Sup. Ct. 1073, 32 L. Ed. 150; and 
 highways, Including canals, and outside of 
 state lilies; Wilson v. Shaw, 204 U. B. 24, 27 
 Sup. Ct. 233, 51 L. Ed. 351, where the pow- 
 er of congress to construct the Panama Ca- 
 nal was aflirmed. 
 
 The powers conferred upon congress to 
 regulate commerce among the several states, 
 are not confined to the instrumentalities of 
 commerce known or in use when the consti- 
 tution was adopted, but keep pace with the 
 progress of the country, and adapt them- 
 selves to new developments of time and cir- 
 cumstances. Accordingly, the power of regu- 
 lation is applied to much subject-matter un- 
 known at the date of the adoption of the 
 constitution. In addition to those things 
 commonly understood to be included in the 
 definitions of commerce, supra, it has been 
 extended to sleeping and parlor cars; Allen 
 v. Pullman Co., 191 U. S. 171, 24 Sup. Ct. 39, 
 4S L. Ed. 134; refrigerator cars; Union Re- 
 frigerator Transit Co. v. Lynch, 177 U. S. 
 11'.). 20 Sup. Ct. 631, 44 L. Ed. 70S; express 
 companies; Osborne v. Florida. i<;t u. S. 
 650, 17 Sup. Ct. 214, 41 L. Ed. 5SG: tel< 
 and telephone; Leloup v. Port of Mobile, 
 127 U. S. 640, S Sup. Ct. 13S3, 32 L. Ed. 311; 
 Western Union Telegraph Co. V. Missouri, 
 100 U. S. 412, 23 Sup. Ct. 730, 47 L. Ed. 
 1116; business correspondence schools; in- 
 ternational Text Book Co. v. Pigg, 217 U. 
 S. 91, 30 Sup. Ct. 481, 54 L. Ed. 67S, 24 L. 
 R. A. (N. S.) 493, 18 Ann. Cas. 1103; a herd 
 of sheep driven from one state across an- 
 other to a point in a third for shipment; 
 Keller v. Rhoads, 1S8 U. S. 1, 23 Sup. Ct. 
 250, 47 L. Ed. :;".!>; natural gas, after sever- 
 ance from the ground; Haskell v. Gas Co., 
 224 U. S. 217, 32 Sup. Ct. 442, 56 L. Ed. 738; 
 State v. Gas & Mining Co., 120 Ind. 575, 
 22 N. E. 77S, 6 L. R. A. 579; the transmis- 
 sion of lottery tickets between states ; Lot- 
 
 !ase, 188 U. S. 321, 23 Sup. Ct 321, 47 
 L. Ed. 4!>2. As to goods, intr 
 in transitu to another state, is Interstate 
 commerce; The Daniel Ball, 10 Wall. (U. B.) 
 557, 19 L. Ed. 099; the ultimate destination 
 prevails; Houston Direct Nav. Co. v. 
 Co., 89 Tex. 1, 32 S. W. 889, 30 L. R. A. 713, 
 59 Am. St. Rep. 17; if the shipment par- 
 tially Intrastate is bona fide it Is not Inter- 
 state, but otherwise if a mere sub! 
 benefit pro tanto by reduced Btate i 
 Gulf, C. & S. F. Ry. Co. v. Texas, 204 U. S. 
 103, 27 Sup. Ct 360, 51 L. Ed. 540. 
 
 Interstate commerce by sea is of a nation- 
 al character and within the exclusive | 
 of congress; Philadelphia & S. Mail B. B. 
 Co. v. Pennsylvania, 122 U. S. 326, 7 Sup. 
 Ct. 1118, 30 L. Ed. 1200; and so is trans- 
 portation from a point in one state to or 
 through another or other states, and it is 
 commerce among the states even as to the 
 part of the journey within the state; Wa- 
 bash, St. L. & P. R. Co. v. Illinois, 118 U. S. 
 557, 7 Sup. Ct. 4, 30 L. Ed. 244. Where the 
 railroad runs for a few miles out of a state 
 and back the carriage is interstate com- 
 merce; Banley v. Ry. Co., 187 U. S. 617. 23 
 Sup. Ct. 214, 47 L. Ed. 333; so of a \ 
 between two ports of the same state pass 
 Ing more than a marine league from shore; 
 Pacific Coast S. S. Co. v. R. Com'rs, 18 
 Fed. 10. Prior to the decision of the Su- 
 preme Court, the state courts were divided; 
 Sternberger v. R. Co., 29 S. C. 510, 7 B. E. 
 836, 2 L. R. A. 105, agreeing with it. and 
 State v. Telegraph Co., 113 N. C. 213, 18 S. 
 E. 389, 22 L. R. A. 570, contra; it was. bow- 
 ever, held that when a passenger (whose 
 ultimate destination is to a place in an< 
 state) purchases a ticket to a point within 
 the state and then another to his destina- 
 tion, his first purchase was intrastate com- 
 merce to which state rates apply; Kansas 
 City S. R. Co. v. Brooks, S4 Ark. 233, 105 S. 
 W. 93. 
 
 A grain elevator engaged in the bus 
 of storing grain in the course of Interstate 
 transportation is not engaged in interstate 
 commerce; W. W. Cargill Co. v. Minnesota, 
 ISO U. S. 452. 21 Sup. Ct. 423, 45 I- Bd. 619; 
 People v. Miller, S4 App. Div. 171. 82 N. Y. 
 Supp. 5S2, where Budd v. New York, 143 
 U. S. 517, 12 Sup. ct. 168, 36 1.. Ed. 247, 
 and Munn v. Illinois, 01 I'. S. 113, 21 1.. Ed. 
 77, were Cited with the Comment that i' 
 oT them the point was a minor one and did 
 not receive full consideration, and upon that 
 point they bad been much criticized. So ir 
 was held that coal mined in one state ami 
 sent into another to await shipment to pur- 
 Chasers was not exempt from state taxa- 
 tion as subject-matter of Interstate commerce; 
 Lehigh & Wilkes Parre Coal Co. v. Bo 
 of Junction. 75 N. J. L. 922, 68 Atl. 806, 15 
 L. R. A. (N. S.) 514. 
 
 '1'he commodities clause of the Hepburn 
 Act, '/. V., is a regulation of commerce with
 
 COMMERCE 
 
 536 
 
 COMMERCE 
 
 in the power of congress to enact, and its 
 power to regulate interstate commerce does 
 not require that the regulation should apply 
 to all commodities alike, nor does an excep- 
 tion of one invalidate it ; U. S. v. Delaware 
 & H. Co., 213 U. S. 36G, 20 Sup. Ct. 527, 53 
 L. Ed. S36. 
 
 The Employers' Liability Act of June 11, 
 1906, providing that every common carrier 
 engaged in trade and commerce in the Dis- 
 trict of Columbia or in the territories or 
 between the several states shall be liable 
 for the death or injury of any of its em- 
 ployes which may result from the negligence 
 of any of its officers, agents or employes was 
 held to be a regulation of intrastate as well 
 as of interstate commerce, and therefore 
 one beyond the power of congress to enact; 
 Employers' Liability Cases, 207 U. S. 463, 2S 
 Sup. Ct. 141, 52 L. Ed. 297, four Justices 
 dissenting. As to the case of the Second 
 Employers' Liability Act of 1908, see supra. 
 Transportation in and out of the state is 
 interstate commerce. A railroad entirely in 
 a state, but a connecting link of interstate 
 roads, is engaged in interstate commerce; 
 Houston Direct Nav. Co. v. Ins. Co., 89 Tex. 
 1, 32 S. W. 8S9, 30 L. R. A. 713, 59 Am. St. 
 Rep. 17; but an interstate shipment (in this 
 case, of car load lots) on reaching the point 
 designated in the original contract of trans- 
 portation ceases to be an interstate shipment, 
 and its further transportation to another 
 point within the same state, on the order 
 of the consignee, is controlled by the law 
 of the state and not by the interstate com- 
 merce act; Gulf, C. & S. F. R. Co. v. Texas, 
 204 U. S. 403, 27 Sup. Ct. 360, 51 L. Ed. 540. 
 Shipments of lumber on local bills of lading 
 from one point in a state to another point 
 in the same state destined from the begin- 
 ning for export, are foreign and not intra- 
 state commerce : De Bary & Co. v. Louisiana, 
 
 227 U. S. 108, 33 Sup. Ct. 239, 57 L. Ed. ; 
 
 following Southern Pac. Terminal Co. v. 
 Commerce Commission, 219 U. S. 498. 31 
 Sup. Ct. 279, 55 L. Ed. 310; Railroad Com- 
 mission of Ohio v. R. Co., 225 U. S. 101, 32 
 Sup. Ct. 653, 56 L. Ed. 1004; distinguishing 
 Gulf, C. & S. F. R. Co. v. Texas, 204 U. S. 
 403, 27 Sup. Ct. 360, 51 L. Ed. 540. 
 
 When the Power of Congress is Exclusive. 
 The power of congress over interstate com- 
 merce "is necessarily exclusive whenever 
 the subject-matter is national in its charac- 
 ter and properly admits of only one uniform 
 system," and in such cases non-action by 
 congress is equivalent to a declaration that 
 it shall be free and untrammelled; Phila- 
 delphia & S. Mail S. S. Co. v. Pennsylvania, 
 122 U. S. 326, 336, 7 Sup. Ct. 1118, 30 L. 
 Ed. 1200; Wei ton v. Missouri, 91 U. S. 275, 
 23 L. Ed. 347; Robbins v. Taxing Dist, 120 
 U. S. 489, 498, 7 Sup. Ct. 592, 30 L. Ed. 694 ; 
 where it was said that if selling goods by 
 sample needs regulation, it must obviously 
 be baaed on a uniform system applicable to 
 
 the whole country, and congress alone can 
 do it; Brown v. Houston, 114 U. S. 622, 5 
 Sup. Ct 1091, 29 L. Ed. 257 ; Bowman v. R, 
 Co., 125 U. S. 465, 8 Sup. Ct. 6S9, 1062, 31 
 L. Ed. 700; Crandall v. Nevada, 6 Wall. (U. 
 S.) 35, 18 L. Ed. 745, where it was held that 
 the states have no right to tax interstate 
 commerce although they may tax the in- 
 struments of such commerce in like manner 
 as other property of the same description. 
 Such a regulation, national in its nature, 
 is the requirement of a bond of indemnity 
 from passengers arriving from foreign ports; 
 Henderson v. New York, 92 U. S. 259, 23 L. 
 Ed. 543 ; or the payment of a tax on each 
 such passenger; Smith v. Turner, 7 How. 
 (U. S.) 283, 12 L. Ed. 702 (but the require- 
 ment of a list of passengers, with ages, oc- 
 cupations, etc., is a police regulation within 
 the power of the state; New York v. Miln, 11 
 Pet. [U. S.] 103, 9 L. Ed. 648); so also the 
 transportation of persons or merchandise 
 "is in its nature national, admitting of but 
 one regulating power"; Leisy v. Hardin, 135 
 U. S. 100, 10 Sup. Ct. 681, 34 L. Ed. 128; 
 Bowman v. R. Co., 125 U. S. 465, 8 Sup. Ct. 
 6S9, 1062, 31 L. Ed. 700; Sloman v. Moebs 
 Co., 139 Mich. 334, 102 N. W. 854; Richter 
 v. Poppenhausen, 42 N. Y. 374; Greek- Ameri- 
 can Sponge Co. v. Drug Co., 124 Wis. 469, 
 102 N. W. 888, 109 Am. St. Rep. 961; though 
 the delivery is made by an agent, residing 
 in the state, of the non-resident seller; Keh- 
 rer v. Stewart, 197 U. S. 60, 25 Sup. Ct. 403, 
 49 L. Ed. 663; whether the sale is made di- 
 rectly to the customer or to a retailer; id.; 
 imported goods in unbroken original pack- 
 ages are not subject to state taxation; In re 
 Doane, 197 111. 376, 64 N. E. 377; State v. 
 Board of Assessors, 46 La. Ann. 145, 15 
 South. 10, 49 Am. St. Rep. 318; but mer- 
 chandise consigned by non-resident sellers to 
 and stored by a warehouseman, awaiting 
 future sale and delivery, is not protected 
 from local assessment as interstate com- 
 merce; Merchants' Transfer Co. v. Board of 
 Review, 128 la. 732, 105 N. W. 211, 2 L. R. 
 A. (N. S.) 662, 5 Ann. Cas. 1016. 
 
 As to matters under the exclusive power of 
 congress, national in their character and re- 
 quiring general and not local rules of regu- 
 lation, the fact that congress has not legis- 
 lated does not make it lawful for the states 
 to do so. Such inaction shows only that 
 no restrictions are to be put upon commerce 
 in that direction. The right to legislate is 
 exclusively vested in congress; and when 
 congress legislates on a subject within its ex- 
 clusive power a state loses control of any 
 right it may have had to apply the police 
 power to it, even though the federal act is 
 not to take effect until a future period; 
 Northern Pac. Ry. Co. v. Washington, 222 
 U. S. 370, 32 Sup. Ct. 160, 56 L. Ed. 237. 
 
 The course of decisions, mainly in 'the 
 United States Supreme Court, covers a great 
 variety of subjects with which the state
 
 COMMERCE 
 
 537 
 
 COMMEB 
 
 legislatures have attempted to deal in the 
 enactment of statutes which have been held 
 unconstitutional because they interfered with 
 the exclusive power of congress conferred 
 by the commerce clause of the constitution. 
 Among the statutes which have thus fallen 
 under the bau of the final authority on 
 the subject is one Imposing a burdensome 
 condition upon a shipmaster as a prerequis- 
 ite for landing his passengers, with the al- 
 ternative of the payment of a small sum 
 for each of them; Henderson v. New York, 
 92 U. S. 259, 23 L. Ed, 543; one regulat- 
 ing the arrival of passengers from a for- 
 eign port and authorizing an executive of- 
 ficer to include passengers of certain class- 
 es at his discretion; Chy Lung v. Freeman, 
 92 U. S. 275, 23 I.. Ed. 550; which the court 
 considered as having been enacted mainly 
 to exclude Chinese Immigration, and 
 far beyond the legitimate state action of ex- 
 cluding pauper or convict Immigrants. See 
 also In re Ah Fong, 3 Sawy. 144, Fed. (as. 
 No. 102. But a statute is not invalid where 
 the detention is for the purpose of disin- 
 fection by the order of a state board of 
 health; Brown v. Maryland, 12 Wheat. (U. 
 S.) 419, «6 L. Ed. UTS; Minneapolis, St. P. & 
 S. S. M. K. Co. v. Milner, 57 Fed. 276. So 
 statutes are unconstitutional which require 
 the payment of a license tax by commercial 
 travellers selling goods manufactured in oth- 
 er states, but not by those selling goods 
 manufactured in the state itself; Brennan 
 v. Titusville, 153 U. S. 2S9, 14 Sup. Ct. 829, 
 38 L. Ed. 71D; Webber v. Virginia, 103 U. 
 S. 344, 20 L. Ed. 565; Welton v. Missouri, 91 
 U. S. 275, 23 L. Ed. 347; Asher v. Texas, 12S 
 U. S. 129, 9 Sup. Ct. 1, 32 L. Ed. 36S; Robbins 
 v. Taxing Dist, 120 U. S. 489, 7 Sap. Ct. 
 592, 30 L. Ed. 694; McCall v. California, 136 
 U. S. 104, 10 Sup. Ct. 8S1, 34 L. Ed. 391 ; Mc- 
 Clellan v. Pettigrew, 44 La. Ann. "56, 10 
 South. 853; Overton v. City of Vicksburg, 70 
 Miss. 558, 13 South. 226; Hurford v. State, 
 91 Tenn. 669, 20 S. W. 201 (but not when 
 the same tax is levied upon peddlers selling 
 goods made in or out of the state; Howe 
 Mach. Co. v. Gage, 100 U. S. 676. 25 L. Ed. 
 754; or which were part of the mass of 
 property in the -fate; Emcrt v. Missouri, 150 
 F. S. 296, 15 Sup. Ft. 367, 39 L. Fd. 430; and 
 see Tiernan v. Rlnker, 102 F. s. 12:;, 26 L. 
 Ed. 103); so of an act requiring importers 
 of foreign goods to take out a license in the 
 exercise of a power of taxation: Brown v. 
 Maryland, 12 Wheat. (U. S.) 419, 6 L. Fd. 
 67S; and a state law which requires a party 
 to take out a license for carrying on inter- 
 state commerce; Crutcher v. Kentucky. Ill 
 U. S. 47, 11 Sup. Ct. 851, 35 L. Ed. 01!); a 
 city ordinance laying wharf fees upon ves- 
 sels laden with products of other states. 
 which are not exacted from vessels laden 
 with products of the home state; Guy v. 
 Baltimore, 100 U. S. 434, 25 L. Ed. 743; a 
 state tonnage tax on foreign vessels; Cannon 
 
 v. New Orleans, 20 Wall. (F. 8.) 577, -_ L. 
 Ed. 417; levied to defray quarantine ex] 
 es; Feete v. Morgan, 19 Wall. (1 
 22 L Ed. 201; otherwise of a tax for city 
 purposes levied upon a vessel owned by a 
 i. Ident of the city which is not in i] 
 for the privilege of trading; • . P. ..v 
 
 C. Transp. Co. v. Wheeling, 99 U. S. u;:;. 25 I.. 
 Ed. 412; The .North Cape, O B 
 Fas. No. 10.: 316; granting a telegraph 
 pany exclusive right to maintain telegraph 
 lines in such state as contrary to the . 
 July 24, 1866, which practically forbids the 
 slate to exclude from it.- graph 
 
 company building its lines in pursuance of 
 this act of congress; Pensacola Te 
 v. Telegraph Co., 'M F. S. l, 24 L. Ed 
 an attempt to regulate transmission of 
 telegraphic messages into other states and 
 their delivery; Western Union Telegraph 
 Co. v. Pendleton, 122 F. S. :::7. 7 Sup. Ft. 
 30 I.. Ed. 11S7; as telegraphic com- 
 munications carried on between different 
 states are interstate commerce; Leloup v. 
 Port 01 Mobile, 127 U. S. 610, 8 
 13S3, .'12 F. Fd. 311; a statute providing for 
 inspection of sea-going vessels arriving at a 
 port and of damaged goods found thereon by 
 a state oflieer, with a view to furnishing of- 
 ficial evidence to the parties lmmed 
 concerned, and when goods are damaged to 
 provide for their sale ; Foster v. Master & 
 Wardens of New Orleans, 94 U. S. 246, 21 
 F. Ed. 122; and one prohibiting the driving 
 of cattle from another state into the state 
 during certain months; Hannibal & St .' 
 R. Co. v. Ilusen, 95 F. S. 465, 24 L. Ed 
 one regulating the rates on Interstate traf- 
 fic; Wabash, St. L & P. By. Co. v. 1 
 118 U. S. 557, 7 Sup. Ct J. 30 L. Fd. I'M. 
 
 A state law, requiring the master of 
 vessel in the foreign trade to pay a certain 
 sum to a state ofiicer for every passenger 
 brought from a foreign country into the 
 state, is void; Smith v. Turner, 7 How. (F. 
 S.) 283, 12 L. Ed. 702. No state can -rant 
 an exclusive monopoly for the navigation of 
 any portion of the waters within its limits 
 upon which commerce is carried on under 
 coasting licenses granted he author- 
 
 ity of congress: Gibbons v. Ogden, Wheat. 
 U". S.) 1. 6 F. Fd. 23; the rights here in con- 
 sy were the exclusive right to navigate 
 the Hudson river with steam 
 also, on this point, Gilman v. Philadelphia, 
 :: Wall. (TJ. s.i 713, 18 L. Ed. 96; 
 iel Ball, 10 Wall. IF. S.) 557, 19 L. F- 
 Craig v. Kline, 65 Pa. 399, •'-■ Am. Re] 
 But a state law granting to an lndh 
 an exclusive right to navigate the upper 
 waters of a stream which is wholly within 
 the limits of a state, separated from tide 
 waters by falls Impassable for purposes of 
 navigation, and not forming a part of a 
 continuous track of navigation between two 
 or more states, or with a foreign country, 
 is not invalid ; Veazie v. Moor, 14 How. (U. S.)
 
 COMMERCE 
 
 538 
 
 COMMERCE 
 
 568, 14 L. Ed. 545; and see McReynolds v. 
 Smallhouse, 8 Bush (Ky.) 447. A statute for- 
 bidding common carriers to bring intoxicat- 
 ing liquors into the state without being fur- 
 nished vrith a certificate that the consignee 
 was authorized to sell intoxicating liquors in 
 the county is invalid ; Bowman v. Ry. Co., 
 125 U. S. 465, 8 Sup. Ct. 689, 1062, 31 L. 
 Ed. 700. And so is an act taxing a corpo- 
 ration of another state, owning a railroad 
 which is a link in an interstate line, for the 
 privilege of keeping an office in the state; 
 Norfolk & W. R. Co. v. Com., 136 U. S. 114, 
 
 10 Sup. Ct. 958, 34 L. Ed. 394. And a tax 
 on persons and property received and land- 
 ed within one state after being transported 
 from another was held a tax upon interstate 
 commerce and a regulation thereof upon a 
 matter which is within the exclusive power 
 of congress ; Gloucester Ferry Co. v. Penn- 
 sylvania, 114 U. S. 196, 5 Sup. Ct. 826, 29 
 L. Ed. 158. 
 
 When the State Power is Exclusive. The 
 states may authorize the construction of 
 highways, turnpikes, railways and canals 
 between points in the same states and regu- 
 late the tolls thereof; Baltimore & O. R. 
 Co. v. Maryland, 21 Wall. (U. S.) 456, 22 L. 
 Ed. 678; the building of bridges over non- 
 navigable streams and regulate the naviga- 
 tion of the strictly internal waters of the 
 state, such as do not by themselves, or by 
 connection with other waters, form a con- 
 tinuous highway over which commerce is or 
 may be carried on with other states or for- 
 eign countries ; Veazie v. Moor, 11 How. 
 (U. S.) 56S, 14 L. Ed. 545; The Montello, 
 
 11 Wall. (U. S.) 411, 20 L. Ed. 191; id., 20 
 Wall. (U. S.) 430, 22 L. Ed. 391; and this 
 rule obtains even if goods or passengers, over 
 such highways between points in the same 
 state, may have an ultimate destination in 
 other states, and, to a slight extent the state 
 regulations may be said to interfere with 
 interstate commerce; Wabash, St. L. & P. 
 Ry. Co. v. Illinois, 118 U. S. 557, 7 Sup. Ct. 
 4, 30 L. Ed. 244 ; the states may also exact a 
 bonus or even a portion of the earnings of 
 such corporation as a condition to the grant 
 of its charter; Society for Savings v. Coite, 
 6 Wall. (U. S.) 594, 18 L. Ed. 897; Provi- 
 dent Inst, for Savings v. Massachusetts, 6 
 Wall. (U. S.) 611, 18 L. Ed. 907; Hamilton 
 Mfg. Co. v. Massachusetts, 6 Wall. (U. S.) 
 632, 18 L. Ed. 904; Baltimore & O. R. Co. 
 v. Maryland, 21 Wall. (U. S.) 456, 22 L. Ed. 
 678; Ashley v. Ryan, 153 U.'S. 436, 14 Sup. 
 Ct. 865, 3S L. Ed. 773. The power to enact 
 police regulations relating exclusively to in- 
 trastate trade cannot be interfered with by 
 congress; U. S. v. De Witt, 9 Wall. (U. S.) 
 41, 19 L. Ed. 593; Patterson v. Kentucky, 97 
 U. S: 501, 24 L. Ed. 1115; State v. R. Co., 152 
 Wis. 341, 140 N. W. 70; U. S. v. Vassar, 5 
 Wall. (U. S.) 462, 470, 471, 18 L. Ed. 497. 
 The remarks of Chase, C. J., in this case 
 contain the substance of the whole doctrine: 
 
 "Over this (the internal) commerce and trade,* 
 congress has no power of regulation or any 
 direct control. This power belongs exclusive- 
 ly to the states. No interference by congress 
 with the business of citizens transacted with- 
 in a state is warranted by the constitution, 
 except such as is strictly incidental to the 
 exercise of powers clearly granted to the leg- 
 islature. The power to authorize a business 
 within a state is plainly repugnant to the 
 exclusive power of the state over the same 
 subject.". 
 
 Regulation of intrastate commerce belongs 
 to the state subject to the condition tbat 
 prescribed rates must not be so unreason- 
 ably low as to deprive the carrier of his 
 property without due process of law; Smyth 
 v. Ames, 169 U. S. 466, 526, 18 Sup. Ct. 418, 
 42 L. Ed. 819. See Rates. 
 
 It was at one time thought that the ad- 
 miralty jurisdiction of the United States 
 did not extend to contracts of affreightment 
 between ports of the United States, though 
 the voyage were performed upon navigable 
 waters of the United States; Allen v. New- 
 berry, 21 How. (U. S.) 244, 16 L. Ed. 110. 
 But later adjudications have ignored this 
 distinction as applied to those waters; The 
 Belfast, 7 Wall. (U. S.) 624, 641, 19 L. Ed. 
 266; The Lottawanna, 21 Wall. (U. S.) 558, 
 587, 22 L. Ed. 654; Lord v. Steamship Co., 
 102 U. S. 541, 26 L. Ed. 224. 
 
 Under this power the states may also pre- 
 scribe the form of all commercial contracts, 
 as well as the terms and conditions upon 
 which the internal trade of the state may be 
 carried on; United States v. Steffens, 100 U. 
 S. 82, 25 L. Ed. 550. 
 
 State statutes affecting interstate com- 
 merce have been sustained as follows : One 
 directed against color blindness; Nashville, 
 C. & St. L. R. v. Alabama, 128 U. S. 96, 9 
 Sup. Ct. 28, 32 E. Ed. 352; requiring inter- 
 state locomotive engineers to obtain a li- 
 cense after a qualifying examination, and 
 imposing a penalty for operating without 
 such license ; Smith v. Alabama, 124 U. S. 
 465, 8 Sup. Ct. 564, 31 L. Ed. 508; forbidding 
 a contract limiting liability for injury ; Chi- 
 cago, M. & St. P. Ry. Co. v. Solan. 169 U. S. 
 133, 18 Sup. Ct. 289, 42 L. Ed. 6SS; Peirce 
 v. Van Dusen, 78 Fed. 693, 24 C. C. A. 280, 
 69 L. R. A. 705; Pennsylvania R. Co. v. 
 Hughes, 191 U. S. 477, 24 Sup. Ct. 132, 48 
 L. Ed. 268; requiring telegraph companies 
 to receive dispatches and to transmit and 
 deliver them with due diligence, as applied 
 to messages from outside the state; West- 
 ern Union Telegraph Co. v. James, 162 U. 
 S. 650, 16 Sup. Ct. 934, 40 L. Ed. 1105; for- 
 bidding the running of freight trains on 
 Sunday; Hennington v. Georgia, 163 U. S. 
 299, 16 Sup. Ct. 10S6, 41 L. Ed. 166; requir- 
 ing railroad companies to fix their rates 
 annually for the transportation of passen- 
 gers and freight and to post a printed copy 
 of such rates at all their stations; Chicago
 
 COMMERCE 
 
 r,:;:i 
 
 COMMERCE 
 
 & N. W. Ry. Co. v. Fuller, 17 Wall. (U. S.) 
 560, 21 L. Ed. 710; forbidding the consolida- 
 tion of parallel or competing lines of rail- 
 ways; Louisville & N. R. Co. v. Kentucky, 
 161 U. S. 677. 16 Sup. Ct. 714, 40 L. Ed. 849; 
 regulating the beating of passenger 
 and directing guards and guard posts to be 
 placed on railroad bridges and trestles and 
 the Approaches thereto; New York, N. EL & 
 II. R. Co. v. New York, 105 U. S. 628, 17 
 Sup. Ct. 418, 41 L. Ed. 853; requiring track 
 connections and facilities for the interchange 
 of cars and traffic at railroad intersections; 
 Wisconsin, M. & P. R. Co. v. Jacobson, 17!) 
 U. S. 287, 21 Sup. Ct 115, 45 L. Ed. 194. 
 A statute regulating receipts for deposits 
 of money is not a burden on, or regula- 
 tion of, interstate commerce, simply because 
 such receipts are likely to be transmitted t" 
 other states or foreign countries; Engel v. 
 O'Malley, 219 r. s. 128, 31 Sup. Ct. 190, ", 
 L. Ed. 128. The Arkansas "Full Crew" act 
 is not unconstitutional under the commerce 
 clause, congress not having acted in regard 
 thereto; Chicago, R. I. & P. R. Co. v. Ar- 
 kansas, 219 U. S. 453, 31 Sup. Ct 275, 55 L. 
 Bd. 290. 
 
 The line of distinction between an inter- 
 ference with commerce and a mere police 
 regulation is sometimes exceedingly dim and 
 shadowy. Undoubtedly, congress may go be- 
 yond the general regulations of commerce 
 which comprise its exclusive jurisdiction and 
 descend to minute directions which will ex- 
 clude the exercise of state power as to mat- 
 ters covered by them. It may establish po- 
 lice regulations, as well as the states, as to 
 matters of which it is given control by the 
 constitution, but generally the police power 
 being better exercised by the local authori- 
 ties, and the power to arrest collision resid- 
 ing in the national courts, the regulations of 
 congress seldom exclude the establishment of 
 others by the state covering many particu- 
 lars; Cooley, Const. Lim. 731. See Robbins 
 v. Taxing Dist, 120 U. S. 4S9, 7 Sup. Ct. 592, 
 :;0 L. Ed. 694; Philadelphia & S. Mail S. S. 
 Co. v. Pennsylvania. 122 U. S. 320, 7 Sup. 
 Ct 1118, 30 L. Ed. 1200. 
 
 It was said by Strong, J., in Hannibal & 
 St. J. R. Co. v. Ilusen, 95 U. S. 40.",, 47::, 2 1 
 L. Ed. 527, that "the police power of a state 
 cannot obstruct foreign commerce or inter- 
 state commerce beyond the necessity for its 
 exercise ; and, under color of it, objects not 
 within its scope cannot be secured at the ex- 
 pense of the protection afforded by the fed- 
 eral constitution, it is the duty of the courts 
 to guard vigilantly against any needh 3S in- 
 trusion.'' This language was quoted with ap- 
 proval by Matthews, J., in Bowman v. R. 
 Co., 125 TJ. S. 465, 492, 8 Sup. Ct. 689, 1062, 
 31 L. Ed. 700. 
 
 The doing of interstate business by one en- 
 gaged also in local commerce is not a bar to 
 state regulation or taxation ; Osborne v. 
 
 State, 33 Fla. 162, 14 South. 588, 25 L. R. A- 
 120, 39 Am. St. Rep 
 
 The commerce clause is not violated by a 
 state statute prohibiting the manufacture 
 and sale of adulterated good- an v. 
 
 Lurman, 192 U. S. 189, ut E p. C1 234, 
 Ed. 401; nor by a state tax on ca 
 New York v. Knight, 192 D. S. 21, 24 Sup. 
 <'t. 202, 48 E. Ed. 325; nor by a 
 resident managers of meat packing h 
 construed by the highest State Court to apply 
 only to selling to local customers i; 
 of original packages not as a mere ini 
 «it interstate commerce; Kehrer v. Stewart, 
 197 I . s. 60, 25 Sup. Ct. 403, -19 E. Ed. 683; 
 nor a tax on foreign corporations i 
 carrying passengers or merchandise upon 
 their gross receipts outside of the state ; 
 State Tax on Railway Gross Receipts, L5 
 Wall. (U. S.) 284, 21 L. Ed. 164; Indiana v. 
 Exp. Co., 7 Biss. 227, Fed. Caa No. 7,021 ; nor 
 by a shipment of buggies (by a foreign man- 
 ufacturer) either complete or in packages of 
 parts put together and peddled about the 
 state by an agent who was held liable to an 
 occupation tax; Saulsbury v. State. 43 Tex. 
 Cr. R. 90, 63 S. W. 56S, 96 Am. St. Rep. 837. 
 A state may, in the absence of federal legis- 
 lation on the subject, reasonably regulate the 
 hours of labor of employes on interstate rail- 
 roads ; State v. R. Co.. 36 M at 582, 93 Pae 
 945, 15 L. R. A. (N. S.i 134, 13 Ami. Cas. 144. 
 It may adopt regulations to prevent the 
 spread of diseases among plants; Ex parte 
 Hawley, 22 S. D. 23, 115 N. W. 93. 15 L. R. 
 A. IN. S.i 138. 
 
 The constitutional provision does not apply 
 to regulations as to life-preservers, boiler in- 
 spections, etc., on steamboats which confine 
 their business to ports wholly within a state; 
 The Thomas Swan, 6 Ben. 42, Fed. ('as. No. 
 13,931; nor to any commerce entirely within 
 a state; The Daniel Ball v. V. S., 10 Wall. 
 (U. S.) 557, 19 1.. Ed. 999; Lehigh Val. R. 
 Co. v. Pennsylvania. 11.". U. S. 192, 12 Sup. 
 Ct. 800, 36 E. Ed. 672; Louisville, 
 R. Co. v. Mississippi, VX\ V. S. 587, 10 Sup. 
 Ct. 348, .".:: I- Ed. 784; nor to a condition in 
 a railroad charter granted by a state that 
 the company shall pay a part of its earnings 
 to the state, from time to time, as a 1 ■ 
 Baltimore & O. R. Co. v. Maryland. _!1 Wall. 
 (U. S.) 456, 22 E. Ed. 678; nor to a state law 
 prescribing regulations for ward; 
 rying on business within the state exclusive- 
 ly, notwithstanding they are used as instru- 
 ments of interstate trattie; Munn v. Illinois, 
 !!i P. S. 113, -t E. Ed. 77; nor to a law of 
 Virginia by which only such persons as are 
 not citizens of that state are prohibited from 
 planting oysters in a soil covered by her tide- 
 waters. Subject to the paramount right of 
 navigation, each state owns the beds of all 
 tide-waters within its jurisdiction, and may 
 appropriate them to be used by its own citi- 
 McCready v. Virginia, 94 U. S. 391, 24
 
 COMMERCE 
 
 540 
 
 COMMERCE 
 
 L. Ed. 248. It does not forbid a state from 
 enacting, as a police regulation, a law pro- 
 hibiting the manufacture and sale of intoxi- 
 cating liquors ; Boston Beer Co. v. Massachu- 
 setts, 97 U. S. 25, 24 L. Ed. 989 ; nor the sale 
 of oleomargarine brought from another state ; 
 Com. v. Paul, 148 Pa. 559, 24 Atl. 78; Com. 
 v. Schollenberger, 156 Pa. 201, 27 Atl. 30, 22 
 L. R. A. 155, 36 Am. St Rep. 32; Com. v. 
 Huntley, 156 Mass. 236, 30 N. E. 1127, 15 L. 
 R. A. 839 ; though in original packages ; In 
 re Scheitlin, 99 Fed. 272 ; or imposing a li- 
 cense tax upon travelling salesmen selling 
 liquor in quantities of less than five gallons, 
 the statute having been held by the highest 
 court of the state to be a police regulation 
 and not a taxing act ; Delamater v. South 
 Dakota, 205 U. S. 93, 27 Sup. Ct. 447, 51 L. 
 Ed. 724 (where it was said that such an act 
 is withiD the purview of, and not in conflict 
 with, the Wilson Act) ; or a state act pre- 
 scribing maximum rates of transportation 
 within the state; Chicago, B. & Q. R. Co. v. 
 Iowa, 94 U. S. 155, 24 L. Ed. 94; and see 
 Peik v. Chicago & N. W. R. Co., 94 U. S. 164, 
 24 L. Ed. 97 ; Cooley, Const. L. 75. Nor is a 
 city ordinance, exacting a license fee, for the 
 maintenance of its office in the city, from an 
 express company doing business beyond the 
 limits of a state, invalid ; Osborne v. Mobile, 
 16 Wall. (U. S.) 479, 21 L. Ed. 470; nor a 
 tax on telegraph poles erected within a city; 
 St. Louis v. Telegraph Co., 148 U. S. 92, 13 
 Sup. Ct. 485, 37 L. Ed. 3S0; Philadelphia v. 
 Cable Co., 67 Hun 21, 21 N. Y. Supp. 556; 
 nor a statute requiring locomotive engineers 
 to be licensed after examination, it being a 
 valid exercise of the police power; Smith v. 
 Alabama, 124 U. S. 465, 8 Sup. Ct. 564, 31 
 L. Ed. 508 ; see Nashville, C. & St L. R. Co. 
 v. Alabama, 128 U. S. 96, 9 Sup. Ct. 28, 32 
 Li. Ed. 352 ; nor one forbidding dealing in fu- 
 tures on margins ; State v. Beatty (Miss.) 60 
 South. 1016 ; nor prohibiting shipment or 
 sale of unripe fruits ; Sligh v. Kirkwood 
 (Fla.) 61 South. 185; nor prescribing the ef- 
 fect of domestic indorsements on foreign 
 bills of lading; Roland M. Baker Co. v. 
 Brown, 214 Mass. 196. 100 N. E. 1025. 
 
 A city ordinance providing that only rock 
 dressed within the state should be used in 
 any city public works was held valid; Allen 
 v. Labsap, 1S8 Mo. 692, 87 S. W. 926, 3 Ann. 
 Cas. 306, considered as sound in 19 Harv. L. 
 Rev. 70; and criticized in 61 Cent. L. J. 65. 
 Railroad cars engaged in interstate com- 
 merce may be attached under an execution 
 issued out of a state court ; Davis v. Ry. Co., 
 217 U. S. 157, 30 Sup. Ct. 463, 54 L. Ed. 708, 
 27 L. R. A. (N. S.) 823, 18 Ann. Cas. 907. In 
 Stone v. Trust Co., 116 U. S. 307, 6 Sup. Ct. 
 334, 388, 1191, 29 L. Ed. 636, it was held that 
 the right of the state to limit charges of a 
 railroad company could not be granted away 
 by giving to the company the right from time 
 to time to fix and regulate their charges, and 
 
 that a state was not foreclosed of its right to 
 act upon the reasonableness of the charges 
 and to regulate them for business within the 
 state. A state statute requiring a carrier to 
 settle within a specified time claims for loss 
 or damages is not, in the absence of legisla- 
 tion by congress, an unwarrantable interfer- 
 ence with interstate commerce, and is consti- 
 tutional ; Atlantic Coast Line R. Co. v. Ma- 
 zursky, 216 U. S. 122, 30 Sup. Ct. 378, 54 L. 
 Ed. 411. See Morris v. Express Co., 146 N. 
 C. 167, 59 S. E. 607, 15 L. R. A. (N. S.) 983. 
 And so is one providing that a railroad is lia- 
 ble for damages from fire ; McCandless v. R. 
 Co., 38 S. C. 103, 16 S. E. 429, 18 L. R. A. 
 440. See Fiee. So also are municipal ordi- 
 nances, in the exercise of police power, pro- 
 hibiting the sale of a commodity, otherwise 
 than in original packages, as intoxicating 
 liquor ; Duluth Brewing & Malting Co. v. 
 Superior, 123 Fed. 353, 59 C. C. A. 481; or 
 perishable market produce sold in railroad 
 depots ; State v. Davidson, 50 La. Ann. 1297, 
 24 South. 324, 69 Am. St Rep. 478. 
 
 The principles regulating the police power 
 of the states in its relation to the commerce 
 clause are well defined in Reid v. Colorado, 
 187 U. S. 137, 23 Sup. Ct. 92, 47 L. Ed. 108, 
 where it was said in substance that the 
 United States constitution gives no one a 
 right to introduce into a state, against its 
 will, live stock affected by a contagions dis- 
 ease. Congress not having assumed charge 
 of the matter as involved in interstate com- 
 merce, a state may protect its people, but it 
 must not go beyond the necessities of the 
 case nor unreasonably burden the exercise ot 
 privileges secured by the constitution. 
 
 State Action Valid in Case of Non-Action 
 by Congress. There is a class of cases in 
 which the state may act so long as congress 
 does not as detailed in County of Mobile v. 
 Kimball, supra. The question whether non- 
 action by congress "is conclusive of its inten- 
 tion that the subject shall be free from all 
 positive regulation, or that, until it positively 
 interferes, such commerce may be left to be 
 freely dealt with by the respective states," is 
 to be determined in each case as it arises ; 
 Bowman v. Ry. Co.* 125 U. S. 465, 483, 8 
 Sup. Ct. 689, 1062, 31 L. Ed. 700. 
 
 In this class of cases have been included: 
 Laws for the regulation of pilots ; Cooley v. 
 Board of Wardens, etc., 12 How. (U. S.) 299, 
 13 L. Ed. 996; Pacific Mail S. S. Co. v. Jo- 
 liffe, 2 Wall. (U. S.) 450, 17 L. Ed. 805; In 
 re McNiel, 13 Wall. (U. S.) 236, 20 L. Ed. 
 624; Wilson v. McNamee, 102 U. S. 572, 26 
 L. Ed. 234 ; quarantine and inspection laws 
 and the policing of harbors ; Gibbons v. Og- 
 den, 9 Wheat. (U. S.) 1, 203, 6 L. Ed. 23; 
 New York v. Miln, 11 Pet. (U. S.) 102, 9 L. Ed. 
 648 ; Morgan's Louisiana & T. R. & S. S. Co. 
 v. Board of Health, 118 U. S. 455, 6 Sup. Ct 
 1114, 30 L. Ed. 237 ; the improvement of nav- 
 igable channels; Mobile County v. KimbalL
 
 COMMERCE 
 
 541 
 
 
 102 U. S. 691, 26 L. Ed. 238 ; Escanaba & L. 
 M. Transp. Co. v. Chicago, 107 U. S. 678, 
 2 Sup. Ct. 185, 27 L. Ed. 442 ; Huse v. Glo- 
 ver, 119 U. S. 543, 7 Sup. Ct 313, 30 L. Ed. 
 487; the regulation of wharfs, piers, and 
 docks: Cannon V. New Orleans, 20 Wall. (U. 
 S.) 577, 22 L. Ed. 117; Keokuk Northern 
 Line Packet Co. v. Keokuk. 95 L". S. 80, 24 L. 
 Ed. 377; Northwestern Union racket Co. v. 
 St. Louis, 100 U. S. 423, 25 L Ed- 688; Par- 
 kersburg & O. R. Transp. Co. v. Parkers- 
 burg, 107 U. S. 691, 2 Sup. Ct. 732, 27 L. Ed. 
 584 : Ouachita & M. R. Packet Co. v. Aiken, 
 121 U. S. 444, 7 Sup. Ct. 907, 30 L. Ed. 
 970; the establishment of ferries; Conway 
 v. Taylor's Ex'r, 1 Black (U. S.) 003, 17 L. 
 Ed. 191; Covington & C. Bridge Co. v. Ken- 
 tucky. 154 O. S. 211, 11 Sup. Ct. 10S7, 38 
 L. Ed. 962; Marshall v. Grimes, 41 Mi 27 . 
 Chilvers v. People, 11 Mich. 43; and dams; 
 Willson v. Marsh Co., 2 Pet (U. B.) 2 15, 7 L. 
 Ed. 412; Neaderhouser v. State, lis Ind. 
 257; Woodman v. Mfg. Co., 1 Biss. 540, F< d. 
 Cas. No. 17,978; Carroll v. Campbell, 108 
 Mo. 550, 17 S. W. 884; acts giving a right 
 of action against the owners of a vessel 
 engaged in interstate traffic for the death 
 of a passenger caused by the negligence of 
 those in charge of the vessel; Sherlock v. 
 Ailing, 93 U. S. 99, 23 L. Ed. 819; forbid- 
 ding the sale of plumage, skin or body of 
 any non-game bird, whether captured or 
 killed within or without the state; In re 
 Schwartz, 119 La. 290, 44 South. 20, 121 
 Am. St. Rep. 516; acts for preventing the 
 spread of disease among plants and trees 
 whether grown or sold within or without 
 the state and transported and sold for plant- 
 ing within the state; EX parte Ilawley, 22 S. 
 D. 23, 115 N. W. 93, 15 L. R. A. (N. S.) 138. 
 The stale may authorize the building of 
 dams and bridges over navigable waters, 
 notwithstanding the fact that they may, to 
 some extent, interfere with the navigation 
 of the stream ; Willson v. Pdack-Bird Creek 
 Marsh Co., 2 Pet (U. S.) 245, 7 L. Ed. 412; 
 Card well v. Bridge Co., 113 U. S. 20.",. 5 Sup. 
 Ct. 123, 28 L. Ed. 95!); Pound v. Turck, 95 
 U. S. 459, 24 L. Ed. 525. If the stream is 
 one over which the regulation of congress 
 ex lends, the question arises whether the 
 bridge will interfere with navigation or not; 
 it is not necessarily unlawful if properly 
 built, and if the general traffic of the coun- 
 try will be benetited rather than injured 
 by its construction. There are many cases 
 in which a bridge may be vastly more im- 
 portant than the navigation of the stream 
 which it crosses. It may be said that a state 
 may authorize such constructions, provided 
 they do not constitute a material obstruction 
 to navigation; and each case depends upon 
 its own particular facts. The decision of 
 the state legislature is not conclusive; the 
 final decision rests with the federal courts, 
 who may cause the structure to be abated 
 if it be found to obstruct unnecessarily the 
 
 traffic on the stream; Cooley, Const. Lim. 
 738, 739, 740; Pennsylvania v. 
 Bow. (U. S.) 51S, 14 L. Ed. 249; see also 
 Columbus Ins. Co. v. Bridge Ass'n, o Mc- 
 Lean 70, led. Cas. No. 3,< .rabus 
 !o. v. Curtenius, 6 Mel Fed. 
 Cas. No. 3,015; Jolly v. Draw-Bi 
 o McLean 237, - ». 7,441; B 
 of Com'rs of St. J' nty v. I 
 5 Ind. 13; Rhea v. P. Co., 50 
 v. Leighton, 83 Me. 419, uii ah. :;- I; Luxton 
 
 i .... 153 c. s. 525, 14 Sup. CI 
 38 L. Ed. 808; Covington & C. B 
 v. Kentucky, 154 U. S. 204, 14 Su] 
 38 L. Ed. 962. See Bbidgb. The state has 
 also the power to regulate the '-peed and gen- 
 eral conduct of vessels navigating its waters. 
 provided such regulations do not conflict 
 with regulations prescribed by congress for 
 foreign commerce, or commerce anion - 
 states; Cooley, Const Lim. 740; People v. 
 Jenkins, 1 Hill (N. Y.) 469, 470. 
 
 Of this class of cases, it was said by Mr. 
 Justice Curtis in Cooley v. Board of Ward 
 ens, 12 How. (TJ. S.t 299, 318, [13 L Ed. 990]: 
 "If it were admitted, that the existence of 
 this power in congress, like the power of 
 taxation, is compatible with the existence 
 of a similar power in the states, then it 
 would be in conformity with the contempo- 
 rary exposition of the constitution (Federal- 
 ist No. 32), and with the judicial con 
 tion given from time to time by this court 
 after the most deliberate consideration, to 
 hold that the mere grant of such power to 
 congress did not imply a prohibition on the 
 states to exercise the same power: that it 
 is not the mere existence of such a power, 
 but its exercise by congress, which may be 
 incompatible with the exercise of the same 
 power by the states, and that the states may 
 legislate in the absence of congressional reg- 
 ulations." See, also, Sturu'es v. Crownin- 
 shield, 4 Wheat. (U. S.) 122, 193, 4 L. Ed. 
 529. But even in the matter of building a 
 bridge, if congress chooses to act. its ac- 
 tion necessarily supersedes the action of the 
 state; Pennsylvania v. Bridge Co., IS How. 
 (U. S.) 421, 15 L. Ed. 435. As a matter of 
 fact, the building of bridges over waters 
 dividing two states is now usually done by 
 congressional sanction. See Navigable Wa- 
 ters. 
 
 Under this power the state may also tax 
 the instruments of interstate commerce as 
 it taxes other similar property, provided 
 such tax is not laid upon the commeri 
 self. Brown, J., in Covington & C. Bridge 
 Co. v. Kentucky. 154 U. S. 204, 1-1 Si. 
 10S7, 3S L. Ed. 962, 
 
 But wherever such laws, instead of being 
 of local nature and only affecting interstate 
 commerce Incidentally, are national in their 
 character, the nou-action of congress indi- 
 cates its will that such commerce shall be 
 free and untrammelled, and the case falls 
 within the class wherein the jurisdiction of
 
 COMMERCE 
 
 542 
 
 COMMERCE 
 
 congress is exclusive; Brown v. Houston, 114 
 U. S. 622, 5 Sup. Ct 1091, 29 L. Ed. 257; 
 Bowman v. Ry. Co., 125 U. S. 465, 8 Sup. 
 Ct. 6S9, 1062, 31 L. Ed. 700; Covington & C. 
 Bridge Co. v. Kentucky, 154 U. S. 204, 14 
 Sup. Ct. 1087. 38 L. Ed. 902, and supra. 
 
 This contingent right of action by the 
 states may sometimes be exercised by the 
 courts as well as by legislatures, as where 
 there has been no action by congress or the 
 interstate commerce commission, a state 
 court may by mandamus compel a railroad 
 company doing interstate business to afford 
 equal switching service to its shippers not- 
 withstanding the cars in regard to which 
 the service is claimed would eventually be 
 engaged in interstate commerce; Missouri 
 Pac. Ry. Co. v. Flour Mills Co., 211 U. S. 612, 
 29 Sup. Ct. 214, 53 L. Ed. 352. 
 
 The Wilson Act (see Liquor) provides that 
 intoxicating liquors transported into any 
 state or territory shall be subject to the laws 
 thereof enacted under the police power "up- 
 on arrival in such state." In construing 
 this act it has been held that the interstate 
 commerce is not ended until the goods are 
 moved from the station platform to the 
 freight warehouse, if sent by express; Rhodes 
 v. Iowa, 170 U. S. 412, 18 Sup. Ct. 664, 42 
 L. Ed. 1088; State v. Intoxicating Liquors, 
 102 Me. 206, 66 Atl. 393, 11 L. R. A. (N. S.) 
 550; that they are not subject to seizure 
 while in the hands of the express company; 
 Adams Exp. Co. v. Iowa, 196 U. S. 147, 25 
 Sup. Ct. 185, 49 L. Ed. 424; that delivery to 
 the consignee is necessary to constitute ar- 
 rival in the state; Heymann v. Ry. Co., 203 
 U. S. 270, 27 Sup. Ct. 104, 51 L. Ed. 178, 7 
 Ann. Cas. 1130 ; and that this phrase means 
 actual, not implied, delivery; U. S. v. Build- 
 ing Co., 206 U. S. 120, 27 Sup. Ct. 676, 51 
 L. Ed. 983; Adams Exp. Co. v. Kentucky, 206 
 U. S. 138, 27 Sup. Ct. 60S, 51 L. Ed. 992; 
 that an agreement of the local express agent 
 to hold for a few days a C. O. D. shipment 
 to suit the convenience of the consignee in 
 paying did not affect the transaction as in- 
 terstate commerce; American Exp. Co. v. 
 Kentucky, 206 U. S. 139, 27 Sup. Ct. 609, 51 
 L. Ed. 993; State v. Intoxicating Liquors, 
 101 Me. 430, 64 Atl. 812. In State v. Holley- 
 man, 55 S. C, 207, 31 S. E. 362, 33 S. E. 366, 
 45 L. R, A. 567, before the United States 
 Supreme Court decisions, it was held that 
 liquor received in another state and taken 
 to its destination in a buggy did not "arrive" 
 until both buggy and liquor arrived with 
 the purchaser at his home in the state. 
 Cases which held otherwise, decided prior 
 to the United States Supreme Court deci- 
 sions and of course overruled by them, are 
 In re Langford, 57 Fed. 570; Southern Exp. 
 Co. v. State, 114 Ga. 226, 39 S. E. 899 ; State 
 v. Intoxicating Liquors, 95 Me. 140, 49 Atl. 
 670 ; State v. Intoxicating Liquors, 96 Me. 
 415, 52 Atl. 911. An article in 22 Green 
 Bag 10, on "Liquor in Interstate Relations" 
 
 suggests that, to give effect to state laws, 
 congress may either repeal all legislation 
 recognizing liquors as the subject of inter- 
 state commerce, or explicitly recognize that, 
 for the purpose of giving effect to state pro- 
 hibitory legislation, they are not to be re- 
 garded as such. 
 
 State Action Held Invalid. Any "state leg- 
 islation which seeks to impose a direct bur- 
 den upon interstate commerce, or to inter- 
 fere directly with its freedom does encroach 
 upon the exclusive power of congress"; Rae 
 v. Loan & Guaranty Co., 176 U. S. 126, 20 
 Sup. Ct. 341, 44 L. Ed. 398; Lindsay & P. 
 Co. v. Mullen, 176 U. S. 147, 20 Sup. Ct 
 325, 44 L. Ed. 400; quoting Wabash, St. L. 
 & P. R. Co. v. Illinois, 118 U. S. 557, 7 Sup. 
 Ct. 4, 30 L. Ed. 244, where it was held that 
 a long and short haul clause in a state stat- 
 ute was invalid as applied to interstate com- 
 merce. The following are invalid : A state 
 statute requiring carriers by water to give 
 all persons, without distinction of race or 
 color, equal rights and privileges in all 
 parts of the vessel, it being in effect a reg- 
 ulation of conduct through the entire voy- 
 age while assuming to regulate it while 
 passing through the state; Hall v. De Cuir, 
 95 U. S. 485, 24 L. Ed. 547 (but not one which 
 only applies to passengers carried within the 
 state; Louisville R. Co. v. Mississippi, 133 
 U. S. 587, 10 Sup. Ct. 348, 33 L. Ed. 784) ; or 
 any penal statute which interferes with 
 commerce; Minnesota v. Barber, 136 U. S. 
 313, 10 Sup. Ct. 862, 34 L. Ed. 455; as an 
 act requiring the license of a pedlar of tea, 
 the growth of a foreign country. A statute 
 is invalid which under pretense of protecting 
 the public health imposes a direct burden 
 on interstate commerce; Com. v. Moore, 214 
 Mass. 19, 100 N. E. 1071; and so is a stat- 
 ute, ostensibly a license tax, but in fact a 
 regulation of commerce; Voight v. Wright, 
 141 U. S. 62, 11 Sup. Ct. 855, 35 L. Ed. 638 
 (where the provision that flour brought into 
 a state and offered for sale should be re- 
 viewed and have the Virginia inspection 
 mark on it, was held discriminating and un- 
 constitutional, such inspection not being re- 
 quired for flour manufactured in the state) ; 
 Brimmer v. Rebman, 138 U. S. 78, 11 Sup. 
 Ct. 213, 34 L. Ed. 862 (where there was a 
 license tax on the sale of western meat, 
 accompanied by burdensome regulations not 
 imposed on the sale of meat produced in 
 the state) ; and a license tax on photogra- 
 phers, etc., does not affect the shipment from 
 a corporation in another state of pictures 
 and frames to be put together and delivered 
 by its agent, who is free from license tax; 
 Caldwell v. North Carolina, 187 U. S. 622, 23 
 Sup. Ct 229, 47 L. Ed. 336. 
 
 A state statute penalizing shipments of 
 liquor C. O. D. and making the place of 
 delivery the place of sale is invalid; Adams 
 Express Co. v. Kentucky, 206 U. S. 129, 27 
 Sup. Ct 606, 51 L. Ed. 987. Liquor is a
 
 COMMERCE 
 
 543 
 
 COMMERCE 
 
 recognized article of commerce and a state 
 law denying the right to send it from one 
 state to another is unconstitutional ; Vance 
 v. Vandercook Co., 170 U. S. 438, 18 Sup. 
 Ct. 674, 42 L. Ed. 1100, followed in Adams 
 Express Co. v. Kentucky, 214 D. S. 218, 29 
 Sup. Ct. ii-YA, 53 L. Ed. 972; Louisville ft N. 
 R. Co. v. Brewing Co., 22:; U. 8, 70, 32 Sup. 
 Ct. 189, 56 L. i:<l. 355; in both which cases It 
 is also held that transportation is not com- 
 pleted until delivery to the consignee, and 
 under the Wilson Act (q. v.) it is not BUDject 
 to regulation under state laws until such de- 
 livery. See supra. 
 
 A burden imposed upon interstate com- 
 merce cannot be sustained simply because 
 the statute imposing it applies to the people 
 of all the states, including the enacting one; 
 Minnesota v. Barber, 136 U. S. 313, 10 Sup. 
 Ct 862, 34 L. Ed. 455, where a statute re- 
 quiring Inspection within twenty-four hours 
 before slaughtering of all animals killed for 
 food, was held unconstitutional. 
 
 While a state may confer power on an 
 administrative agency to make reasonable 
 regulations as to the place, time and man- 
 ner of the delivery of merchandise, any regu- 
 lation which directly burdens interstate com- 
 merce is a regulation thereof and unconstitu- 
 tional; McNeill v. R. Co., 202 U. S. 543, 26 
 Sup. Ct. 722, 50 L. Ed. 1142. where the regu- 
 lation was an order requiring a railroad com- 
 pany to deliver cars from another state to 
 the consignee on a private siding beyond 
 its own right of way; but where congress 
 and the interstate commerce commission 
 have not acted, the state may compel a rail- 
 road company to give equal switching facili- 
 ties to all customers, even if affecting cars 
 to be used in interstate commerce; Missouri 
 Pac. R. Co. v. Mills Co., 211 U. S. 612, 29 
 Sup. Ct. 214, 53 L. Ed. 352. 
 
 Other cases of invalid state action were : 
 Assessment by a state for taxation of prop- 
 erty in original packages before incorpora- 
 tion into the mass of property; May v. New 
 Orleans, 178 U. S. 496, 20 Sup. Ct. 970, 44 
 L. Ed. 1165; and taxation of tea imported 
 from a foreign country, and stored in a 
 government warehouse in the original un- 
 broken package; Siegfried v. Raymond, 190 
 111. 424, 60 N. E. SOS. 
 
 A state has no power to interfere with an 
 interstate commerce train if thereby a di- 
 rect burden is imposed upon interstate com- 
 merce, as by a police regulation requiring 
 the stoppage of a train at certain stations; 
 Mississippi R. Com. v. R. Co., 203 U. S. 335, 
 27 Sup. Ct 90, 51 L. Ed. 209; Cleveland, C. 
 C. & St. L. Ry. Co. v. Illinois, 177 U. S. 514. 
 20 Sup. Ct 722, 44 L. Ed. SOS: or regula- 
 tions of master and servant, applicable to 
 those actually engaged in the operation of 
 interstate commerce after congress had act- 
 ed upon the subject; Atlantic Coast Line R. 
 Co. v. Wharton, 207 U. S. 32S, 28 Sup. Ct. 
 121, 52 L. Ed. 230 ; Johnson v. Southern Co., 
 
 196 U. S. 1, 25 Sup. Ct. 158, 49 L. Ed 
 Schlemmer v. R. Co., 205 U. S. 1, 27 Sup. Ct 
 407, 51 L. Ed. 681. 
 
 The Minnesota Kate Cases, 230 U. S 
 33 Sup. Ct 729, 57 L. Ed. 1511. have been 
 reported since this title was 1. it 
 
 might be cited as an authority continuing 
 almost every legal proposition above 
 as established by the authorities, and the 
 opinion of the court by Mr. Justice 11 
 may be referred to as a thorough and 
 haustive discussion of the whole subj< 
 Interstate commerce. 
 
 The special point decided arose out of the 
 contention that, even admitting that the 
 rates prescribed by the state were rea 
 ble, as a regulation of intrastate commerce, 
 as applied to cities on the state's boundary 
 or to places within competitive districts 
 crossed by the state line, nevertheless the 
 rates disturbed the relation previously exist- 
 ing between interstate and Intrastate rates, 
 thus imposing a direct burden upon inter- 
 state commerce and creating discriminations 
 as against localities in other states. In re- 
 ply to this contention, it was held that the 
 authority of the state to prescribe reasonable 
 charges for intrastate transportation is state- 
 wide, unless limited by the exercise of the 
 constitutional power of congress, which is 
 not confined to a part of the state, but ex- 
 tends throughout its limits — to cities adja- 
 cent to its boundaries as well as to those in 
 the interior ; and a restriction of the authori- 
 ty of the state must be by virtue of the ac- 
 tual exercise of the federal control and not 
 by reason of a dormant federal power that 
 has not been exerted. 
 
 See Interstate Commerce Commission; 
 Constitution of United States. 
 
 COMMERCE CLAUSE. See Commebce; 
 Original Package; Constitution of the 
 United States. 
 
 COMMERCE COURT. See United States 
 Courts. 
 
 COMMERCE, DEPARTMENT OF. See 
 
 Departments. 
 
 C0MMERC1A BELLI. Agreements enter- 
 ed into by belligerents, either in time of 
 to take effect in the event of war, or 
 during the war itself, by which arrangement 
 is made for non-hostile Intercourse. They 
 may take the form of armistices, truces, 
 capitulations, cartels, i 
 ducts, safeguards. 1 Kent 159; 2 Opp. 274. 
 See separate titles. 
 
 Contracts between citizens of one belliger- 
 ent and those of another, or between citi- 
 zens of one belligerent and the other belliger- 
 ent They may take the form of ransom 
 bills (g. v.), bills of exchange drawn by pris- 
 oners of war, or receipts for requisitions. 1 
 Kent lul. 
 
 COMMERCIAL AGENCY. A person, firm, 
 or corporation engaged in the business of
 
 COMMERCIAL AGENCY 
 
 544 
 
 COMMERCIAL AGENCY 
 
 collecting information as to the financial 
 standing, ability, and credit of persons en- 
 gaged in business and reporting the same 
 to subscribers or to customers applying and 
 paying therefor. "They have become vast 
 and extensive factors in modern commercial 
 transactions for furnishing information to 
 retail jobbers as well as to wholesale mer- 
 chants. The courts are bound to know judi- 
 cially that no vendor of goods at wholesale 
 can be regarded as a prudent business man 
 if he sells to a retail dealer, upon a credit, 
 without first informing himself through 
 these mediums of information of the finan- 
 cial standing of the customer, and the credit 
 to which he is fairly entitled;" Furry v. 
 O'Connor, 1 Ind. App. 573, 28 N. E. 103. See 
 also Eaton, Cole & Burnham Co. v. Avery. 
 83 N. Y. 31, 38 Am. Rep. 389; Holmes v. 
 Harrington, 20 Mo. App. 661. 
 
 Hoxo far the agency may contract against 
 its own negligence. An exception is made 
 to some extent in favor of such agencies to 
 the rule against stipulations by a person 
 against liability for his own negligence. 
 The agency usually contracts that their 
 agents shall be considered as the agents of 
 their patrons, and that they shall not be 
 liable for the negligence of their agents. 
 Where in an action upon such a contract 
 the plaintiff contended that under it the 
 agency was protected only against gross 
 and not against ordinary negligence, it was 
 held otherwise; Duncan v. Dun, 7 W. N. C. 
 (Pa.) 246, Fed. Cas. No. 4,134. 
 
 Under a contract that the actual correct- 
 ness of the information was in no manner 
 guaranteed, the agency was not liable for 
 loss occasioned to a subscriber by the wilful 
 and fraudulent act of a sub-agent in furnish- 
 ing false information; Dun v. Bank, 58 Fed. 
 174, 7 C. C. A. 152, 23 L. R. A. 687, reversing 
 City Nat. Bank v. Dun, 51 Fed. 160. Where 
 the inquiry was made concerning a grocer 
 and the agency reported concerning the 
 wrong person, who had the same name and 
 was a grocer and saloon keeper, the plaintiff 
 could not recover from the agency the value 
 of goods sold on the strength of the report, 
 the evidence being held to show that there 
 was not such gross negligence as would 
 render the agency liable; Xiques v. Brad- 
 street Co., 70 Hun 334, 24 N. Y. Supp. 48; 
 but such a contract does not protect the 
 agency from an error made in the publica- 
 tion of its books of reference giving the 
 financial responsibility of merchants and 
 others, and upon which a subscriber of the 
 agency relied in selling goods and suffered 
 a loss, and in such case it is unnecessary to 
 thus establish the insolvency of the purchas- 
 er by suit before suing the agency ; Crew v. 
 Bradstreet Co., 134 Pa. 161, 19 Atl. 500, 7 
 L. R. A. 661, 19 Am. St. Rep. 681. 
 
 When reports are privileged and when 
 libellous. Such an agency is a lawful busi- 
 ness when lawfully conducted, but is not 
 
 exempt from liability for false and defama- 
 tory publications when other citizens would 
 not be exempt. Its communications to a per- 
 son interested in the information are privi- 
 leged even if false, if made in good faith 
 and without malice, but if communicated to 
 its subscribers generally they are not privi- 
 leged; Bradstreet Co. v. Gill, 72 Tex. 115, 9 
 S. W. 753, 2 L. R. A. 405, 13 Am. St. Rep. 
 768; Kingsbury v. Bradstreet Co., 116 N. Y. 
 211, 22 N. E. 365; Woodruff v. Bradstreet 
 Co., 116 N. Y. 217, 22 N. E. 354, 5 L. R. A. 
 555 ; Pollasky v. Minchener, 81 Mich. 280, 
 46 N. W. 5, 9 L. R. A. 102, 21 Am. St. Rep. 
 516; Mitchell v. Bradstreet Co., 116 Mo. 226, 
 22 S. W. 358, 724, 20 L. R. A. 138, 38 Am. 
 St. Rep. 592 ; State v. Lonsdale, 48 Wis. 348, 
 4 N. W. 390; Trussell v. Scarlett, 18 Fed. 
 214; King v. Patterson, 49 N. J. L. 417, 9 
 Atl. 705, 60 Am. Rep. 622; Erber v. R. G. 
 Dun & Co., 4 McCrary 160, 12 Fed. 526; 
 Johnson v. Bradstreet Co., 77 Ga. 172, 4 Am. 
 St. Rep. 77. See also 3 Montreal, Q. B. 83; 
 18 Can. S. C. 222. The contract of the agen- 
 cy to furnish information to all its subscrib- 
 ers, including those who have no special in- 
 terest in it, is no defence to an action for 
 libel; King v. Patterson, 49 N. J. L. 417, 9 
 Atl. 705, 60 Am. Rep. 622 ; nor was the fact 
 that the information was given by printed 
 signs of which each subscriber had the key ; 
 Sunderlin v. Bradstreet, 46 N. Y. 188, 7 Am. 
 Rep. 322; the matter is privileged if com- 
 municated to the proper person by a clerk 
 or agent as well as by the proprietor of the 
 agency; King v. Patterson, 49 N. J. L. 417, 
 9 Atl. 705, 60 Am. Rep. 622; Erber v. R. G. 
 Dun & Co., 12 Fed. 526; (but see Beardsley 
 v. Tappan, 5 Blatchf. 497, Fed. Cas. No. 
 1,189, and Tappan v. Beardsley, 10 Wall. 
 427, 19 L. Ed. 974, criticised in the two cases 
 just cited ;) or if specially reported upon prop- 
 er occasion to subscribers having special in- 
 terest in them, though not applied for by such 
 subscribers ; Locke v. Bradstreet Co., 22 Fed. 
 771 ; but if a subscriber apply for special 
 information from the agency, a false de- 
 nunciation of the person inquired about, 
 coupled with the report, is actionable ; Brown 
 v. Durham, 3 Tex. Civ. App. 244, 22 S. W. 
 868. So also are statements at first privileg- 
 ed but repeated and persisted in when known 
 to be false, or, if otherwise privileged, made 
 maliciously ; Erber v. R. G. Dun & Co., 12 
 Fed. 526; or if made recklessly and without 
 due care and caution in making inquiry; 
 Locke v. Bradstreet Co., 22 Fed. 771 ; Brad- 
 street Co. v. Gill, 72 Tex. 115, 9 S. W. 753, 2 
 L. R. A. 405, 13 Am. St. Rep. 768; Lowry 
 v. Vedder, 40 Minn. 475, 42 N. W. 542. 
 
 The publication and circulation to sub- 
 scribers in daily reports of the execution of 
 a chattel mortgage was not libellous ; New- 
 bold v. J. M. Bradstreet & Son, 57 Md. 38, 
 40 Am. Rep. 426; contra, King v. Patterson, 
 49 N. J. L. 417, 9 Atl. 705, 60 Am. Rep. 622 ; 
 nor was that of a copy of a judgment, with
 
 COMMERCIAL AGENCY 
 
 545 
 
 COMMI.IH [AX AG] 
 
 a note that the judgment was paid the same 
 day; 8 Ir. Rep. 349; but in a similar case 
 when the judgment was so paid, but it was 
 not so stated, the publication was held libel- 
 lous; 1G Ir. Rep. C. L. 208; and so also is a 
 false publication of a trader that a Judgment 
 had boon rendered; 22 Q. B. 134. And where 
 the action was for publishing that a judg- 
 ment had been rendered when only a verdict 
 had been returned, it was held proper to ask 
 a witness to the effect of such statement, 
 whether if he had known the actual fact 
 his conduct: would have been the same; Hes- 
 sel v. Bradstreet Co., 141 Pa. 501, 21 Atl. 
 659. 
 
 The burden of proof is upon the agency 
 to show privilege prima facte, and after its 
 character is established the burden is on 
 the plaintiff to show malice ; Erber v. R. G. 
 Dun & Co., 12 Fed. 526; Ormsby v. Douglass, 
 37 N. Y. 477; and it is matter of law for 
 the court to determine whether the matter 
 published is libellous per se; Woodruff v. 
 Bradstreet Co., 35 Hun (N. Y.) 16. 
 
 An action for libel may be brought by a 
 person whose name is published in a book 
 containing a list of delinquent debtors, dis- 
 tributed to subscribers, manifestly for coerc- 
 ing the payment of claims, who is denied 
 credit because of such publication, or by one 
 to whom a letter is sent in an envelope on 
 which is printed the name of an association 
 and a statement that it is an organization 
 for the purpose of collecting bad debts; 
 Muetze v. Tuteur, 77 Wis. 236, 46 N. W. 123, 
 9 L. R. A. 86, 20 Am. St. Rep. 115. 
 
 A report of a mercantile agency, alleging 
 that plaintiff had made a general assign- 
 ment for the benefit of creditors, is not privi- 
 leged, where it appears that plaintiff had 
 assigned only to secure the endorsement of 
 a note; Douglass v. Daisley, 114 Fed. 628, 
 52 C. C. A. 324, 57 L. R. A.- 475 ; but if the 
 mistake could not have been avoided by rea- 
 sonable care, the report is privileged, but if 
 it was the result of carelessness, the privi- 
 lege is lost ; id. Communications though 
 made in good faith by a commercial agency 
 to a subscriber containing defamatory state- 
 ments of plaintiff's character, are not privi- 
 leged; [190S1 A. C. 390. A complaint that a 
 mercantile agency report alleging that plain- 
 tiff's account with the bank was "not class- 
 ed as an entirely desirable one," and averred 
 to be false and malicious, was held good on 
 demurrer: Mower-Hobart Co. v. R. G. Dun 
 & Co., 131 Fed. 812. 
 
 Effect of fraudulent representations by 
 vendee to agency upon vendor lehn relies up- 
 on them. An action for deceit will lie 
 against persons or corporations making false 
 representations of pecuniary responsibility 
 to an agency in order to obtain credit and 
 defraud those who may rely upon the re- 
 ports; Carroll Exchange Bank v. Bank, 50 
 Mo. App. 94; Eaton, Cole & Burnham Co. v. 
 Avery, 83 N. Y. 31, 38 Am. Rep. 3S9 ; Tindle 
 Bouv.— 35 
 
 v. Birkett, 171 N. Y. 520, 64 X. E. 210, 89 
 Am. St. Rep. 822, reversing 57 App. Div 
 67 N. Y. Supp. 1017; Eaton, Cole ft Burnhain 
 Co. v. Avery, 18 riun (N, Y.) It; in such 
 action the statements falsely made to the 
 agency are admissible, if relied on by the 
 vendee; Furry v. O'Connor, 1 hid 
 28 N. E. 103; or if approved by aim after 
 being written out by the agency, but not if 
 not known to the vendor until after thi 
 Robinson v. Levi, 81 Ala. 134, 1 South. 554; 
 Mooney v. Davis. 7.", Mich. 188, 42 X. V. 
 13 Am. St. Rep. 425. A contract for thi 
 of goods to the person making such repre- 
 sentations, who proves to be insolvent at the 
 
 tii f making them *and of the sale, may 
 
 be rescinded and possession of the goods re- 
 covered; Mooney v. Davis, 7." Mich. I 
 X. W. S02, 13 Am. St. Rep. 425; Cook v. Har- 
 rington, 31 Mo. App. 199; Binchman v. 
 s, 85 Mich. ~>^. 48 N. W. dauer 
 
 v. Hay, <;i [a. 667, 17 N. W. 98; Gainesville 
 Nat. Bank v. Bamberger, 77 Tex. 48. 13 S. W. 
 959, 19 Am. St. Rep. r:,S; In re Epstein. 109 
 Fed. 874; it is enough if he had not reason- 
 able grounds for believing them to be true ; 
 In re Roalswick, 110 Fed. 639; but where 
 there were no representations other than 
 those obtained by the agency from the seller, 
 a fraudulent intent on the part of the ven- 
 dee to use the agency as an instrum* 
 fraud must be clearly shown; Victor v. Ilen- 
 lien, 33 Hun (N. Y.) 549; Dieckerhofl v. 
 Brown (Md.) 2 Atl. 723; Macullar v. Mc- 
 Kinley. 09 N. Y. 353, 2 X. E. 9. The vendor 
 may show that he refused to make the sale 
 until he received the report of the agency, 
 and the agent may show his business meth- 
 ods; Hinchman v. Weeks, S5 Mich. 535, 48 
 X. W. 790. The right to rescind the sale is 
 not affected by a refusal of the vendee to 
 give further statements of his condition, as 
 the original one is presumed to continue if 
 not recalled by the agency; Glaflin v. Flack. 
 13 N. Y. Supp. 269; but if the vendee has 
 made subsequent reports showing an impair- 
 ed responsibility, the vendor must take all 
 the reports into consideration, and not only 
 on the original one; but the vendee is not 
 required to make subsequent reports unless 
 he actually becomes insolvent or knows that 
 he will soon be; Cortland Mfg. Co. v. Piatt, 
 83 Mich. 419, 47 X. W. 330; reports made 
 six weeks before the sale may be relied on; 
 20 Mo. App. 173; but not those made from 
 five to seven months before; Zucker v. Kar- 
 peles, 88 Mich. 413, 50 N. W. 373; Macullar 
 v. McKinley. 99 X. Y. 353, 2 X. E. 9. A 
 financial statement to a commercial agency 
 is a continuing representation for a re 
 able time that the facts therein stated are 
 true; In re Kyte, 174 Fed. 867. 
 
 lime affected by the statute of frauds. 
 With respect to the liability of the agency 
 for representations not made in writing when 
 the liability was contested, on the ground 
 that the contract was within the statute of
 
 COMMERCIAL AGENCY 
 
 546 
 
 COMMERCIAL PAPER 
 
 frauds, there is not a satisfactory result to 
 be fouud in decisions; but it has been held 
 that the action was upon the original con- 
 tract with the customer, which was by no 
 statute required to be written ; U. C. 39 Q. 
 B. 551; (reversed on other points and doubt- 
 ed on this; 1 Ont. App. 153;) and also that 
 the action was sustainable on the original 
 contract to furnish accurate statements, in 
 response to inquiry respecting any persons ; 
 Sprague v. Dun, 12 Phila. (Pa.) 310. 
 
 No remedy in cquiti) against publication. 
 An injunction will not be granted to restrain 
 the agency from the publication of matter 
 injurious to the standing of the plaintiff, 
 there being no jurisdiction in equity unless 
 there is a breach of trustor or contract in- 
 volved; Raymond v. Russell, 143 Mass. 295, 
 9 N. E. 544, 58 Am. Rep. 137; Burwell v. 
 Jackson, 9 N. Y. 544. 
 
 See Libel; Privileged Communication. 
 
 COMMERCIAL COURT. A name com- 
 monly applied in English practice to the 
 trial of commercial causes in London and 
 Liverpool before judges of the High Court. 
 It is said to be "a mere piece of convenience 
 in the arrangement of business" ; [1895] 2 
 Ch. 491. 
 
 COMMERCIAL LAW. A phrase employed 
 to denote those branches of the law which 
 relate to the rights of property and rela- 
 tions of persons engaged in commerce. 
 
 This term denotes more than the phrase "mari- 
 time law," which is sometimes used as synonymous, 
 but which more strictly relates to shipping and its 
 incidents. 
 
 As the subjects with which commercial law, even 
 as administered in any one country, has 'to deal are 
 dispersed throughout the globe, it results that com- 
 mercial law is less local and more cosmopolitan in 
 its character than any other great branch of mu- 
 nicipal law ; and the peculiar genius of the common 
 law, in adapting recognized principles of right to 
 new and ever-varying combinations of facts, has 
 here found a field where its excellence has been 
 most clearly shown. The various systems of com- 
 mercial law have been well contrasted by Leone 
 Levi in his collection entitled "Commercial Law, 
 its Principles and Administration, or the Mercan- 
 tile Law of Great Britain compared with the Codes 
 and Laws of Commerce of all the Important Mer- 
 cantile Countries of the Modern World, and with 
 the Institutes of Justinian ;" London, 1850-52 ; a 
 work of great interest both as a contribution to the 
 project of a mercantile code and as a manual of 
 present use. 
 
 As to the rule in the federal courts, see 
 Swift v. Tyson, 16 Pet. (U. S.) 1, 10 L. Ed. 
 865; Carpenter v. Ins. Co., 16 Pet. (U. S.) 
 511, 10 L Ed. 1044; Burgess v. Seligman, 
 107 U. S. 33, 2 Sup. Ct. 10, 27 L. Ed. 359, 
 where Bradley, J., says, "Where the law has 
 not been settled, it is the right and duty of 
 the federal courts to exercise their own 
 judgment, as they also always do in refer- 
 ence to the doctrines of commercial law." 
 See United States Courts. 
 
 COMMERCIAL PAPER. Negotiable pa- 
 per given in due course of business, whether 
 the element of negotiability be given it by 
 the law merchant or by statute. In re Sykes, 
 
 5 Biss. 113, Fed. Cas. No. 13,708. See Nego- 
 tiable Instruments. 
 
 COMMERCIAL TRAVELLER. A travel- 
 ling salesman who simply exhibits samples 
 of goods kept for sale by his principal, and 
 takes orders from purchasers for such goods, 
 which goods are afterwards to be delivered 
 by the principal to the purchasers, and pay- 
 ment for the goods is to be made by the pur- 
 chaser to the principal on such delivery. 
 City of Kansas v. Collins, 34 Kan. 436, 8 
 Pac. 865; State v. Miller, 93 N. C. 511, 53 
 Am. Rep. 469. An order solicited by and 
 given to such salesman does not constitute 
 a sale, either absolute or conditional, of the 
 goods ordered, but is a mere proposal, to be 
 accepted or not, as the principal may see fit ; 
 McKindly v. Dunham, 55 Wis. 515, 13 N. W. 
 485, 42 Am. Rep. 740; Clark v. Smith, 88 
 111. 29S. 
 
 An agent who sells by sample and on cred- 
 it, and is not intrusted with the possession 
 of the goods to be sold, has no implied au- 
 thority to receive payment, and payment to 
 him will not discharge the purchaser; But- 
 ler v. Dorman, 68 Mo. 302, 30 Am. Rep. 795 ; 
 Law v. Stokes, 32 N. J. L. 250, 90 Am. Dec. 
 655 ; Seiple v. Irwin, 30 Pa. 513 ; Kornemann 
 v. Monaghan, 24 Mich. 36. 
 
 Even if he has power to collect accounts, 
 receiving cheeks payable to his principal, no 
 authority to endorse such checks will be im- 
 plied; Jackson v. Bank, 92 Tenn. 154, 20 S. 
 W. 802, 18 L. R. A. 663, 36 Am. St. Rep. 81 ; 
 nor authority to bind his principals on a 
 contract for advertising his business in a 
 newspaper; Tarpey v. Bemheimer, 16 N. Y. 
 Supp. 870. 
 
 . It has been held that possession of the 
 goods by a commercial traveller who sells 
 them is evidence of authority to collect there- 
 for; Bailey v. Pardridge, 134 111. 188, 27 N. 
 E. 89; John Hutchinson Mfg. Co. v. Henry, 
 44 Mo. App. 263; Cross v. Haskins, 13 VL 
 536. 
 
 Where a drummer sold his samples and 
 converted the proceeds, it was held, in the 
 absence of evidence of the custom or usage 
 of the drummer's disposition of samples, 
 that the principals were not bound by the 
 sale; Kohn v. Washer, 64 Tex. 131, 53 Am. 
 Rep. 745 ; but where such sale is ratified, 
 the payment to the agent is ratified also ; 
 Bailey v. Pardridge, 134 111. 18S, 27 N. E. 
 89. 
 
 The drummer may hire a carriage upon 
 the credit of his principals if necessary ; 
 Bentley v. Doggett, 51 Wis. 224, 8 N. W. 155, 
 37 Am. Rep. 827; Huntley v. Mathias, 90 N. 
 C. 101, 47 Am. Rep. 516, where the princi- 
 pals were held liable for the drummer's tort 
 in overdriving a horse. 
 
 C0MMISSARIA LEX. A principle of the 
 Roman law relative to the forfeiture of con- 
 tracts. It is not unusual to restrict a sale
 
 COMMIS3ARIA LEX 
 
 547 
 
 COMMISSION GOVERNM 1 
 
 upon credit, by a clause In the agreement 
 that if the buyer should fail to make due 
 payment the seller might rescind the sale. 
 In the meantime, however, the property was 
 the buyer's and at his risk. A debtor and 
 his pledgee might also agree that if the debt- 
 or did not pay at the day fixed, the pledge 
 should become the absolute property of the 
 creditor. 2 Kent 583. This was abolished 
 by a law of Constantine. Cod. 8. 35. 3. 
 
 C M M I SSA R Y. An officer whose principal 
 duties are to supply an army, or some por- 
 tion thereof, with provisions. 
 
 The subsistence department of the army shall con- 
 sist of one commissary-general of subsistence, with 
 the rank of brigadier-general; two assistant com- 
 missaries-general of subsistence, with the rank of 
 lieutenant-colonel of cavalry ; eight commissaries 
 of subsistence, with the rank of major of cavalry; 
 and sixteen commissaries of subsistence, with the 
 rank of captain of cavalry. U. S. Rev. Stat. § 1110. 
 Their duties are defined in the following sections. 
 
 An official to whom the bishop of a diocese 
 sometimes delegated jurisdiction in his Con- 
 sistory Court over certain parts of the dio- 
 cese. 1 Holdsw. Hist. L. 3G9. 
 
 COMMISSION (Lat. commissio; from com- 
 mittere, to intrust to). 
 
 An undertaking without reward to do 
 something for another, with respect to a 
 thing bailed. Rutherforth, lust. 105. 
 
 A body of persons authorized to act in a 
 certain matter. 5 B. & C. S50. 
 
 The act of perpetrating an offence. 
 
 An instrument issued by a court of justice, 
 or other competent tribunal, to authorize a 
 person to take depositions, or do any other 
 act by authority of such court or tribunal, 
 is called a commission. 
 
 Letters-patent granted by the government, 
 under the public seal, to a person appointed 
 to an office, giving him authority to perform 
 the duties of his office. The commission is 
 not the appointment, but only evidence of 
 it, and, as soon as it is signed and sealed, 
 vests the office in the appointee. Marbury v. 
 Madison, 1 Cra. (U. S.) 137, 2 L. Ed. 60 ; State 
 v. Billy, 2 N. & McC. (S. C.) 357. See Talbot 
 v. Simpson, 1 Pet. C. C. 194, Fed. Cas. No. 
 13,730; U. S. v. Vinton, 2 Sumn. 299, Fed. 
 Cas. No. 16,624; Scofield v. Lounsbury, 8 
 Conn. 109. In this sense it is much used in 
 Great Britain ; the great seal is sometimes 
 placed in commission by the crown in the 
 hands of one or more persons ; judges a 
 ed to certain duties are appointed thereto 
 by commission; the royal assent to bills in 
 parliament is usually given by commissioners 
 appointed for the purpose. 
 
 In Common Law. A sum allowed, usually 
 a certain per cent, upon the value of the 
 property involved, as compensation to a serv- 
 ant or agent for services performed. See 
 Commissions. 
 
 COMMISSION GOVERNMENT. A method 
 of municipal government in which the legis- 
 
 lative power is in the hands of a few per- 
 sons. 
 
 Constitutional provisions dividing govern- 
 ment into legislative, executive and judicial 
 departments are held to apply to Btate 
 not to local governments, and not to a; 
 law providing a commission plan of < ;-, 
 eminent; State v. Ure, 91 Neb. 31, I 
 \V. 224. The legislature has the power to 
 allow the electors of all cities in the 
 class to adopt or reject the commission plan 
 of government; id.; such method is c 
 tutional; State v. City of Mankato, 117 Minn. 
 458, 136 N. W. 204, 41 L. R. A. (X. S.) 111. 
 
 An act authorizing certain cities to adopt 
 this form of government only becomes ef- 
 fective in cities which may adopt it by vote, 
 and does not violate state constitutions pro- 
 hibiting special or local legislation in mat- 
 ters affecting the incorporation of cities, etc. ; 
 People v. Edmands, 2512 111. 108, 96 X. E. 914. 
 
 An act authorizing the government of cer- 
 tain cities by commission at their option is 
 not violative of the constitution as an unwar- 
 ranted d legation of legislative power; State 
 v. Tausi.k. <;i Wash. 69, 116 Pac. 651, 35 L. 
 R. A. (N. S.) 802; Eckerson v. Des Moines, 
 137 la. 452, 115 N. W. 177; City of Jack- 
 son v. State (Miss.) 59 South. S73. To the 
 same effect, Bryan v. Voss, 143 Ky. 422, 136 
 S. W. 
 
 COMMISSION MERCHANT. As this term 
 is used, it is synonymous with the legal term 
 "factor,'' and means one who receives goods, 
 chattels, or merchandise, for sale, ex< ' 
 or other disposition, and who is to re ■ 
 compensation for his services, to be paid by 
 the owner or derived from the sale of t'.ie 
 goods. Perkins v. State, 50 Ala. 154. See 
 Agency; Factors. 
 
 COMMISSION OF ASSIZE. In English 
 Practice. A commission which formerly is- 
 sued from the king, appointing certain per- 
 sons as commissioners or judges of assize 
 to hold the assizes in association with dis- 
 creet knights during those years in which 
 the justices in eyre did not come. 
 
 Other commissions were added to this, 
 which has finally fallen into complete dis- 
 use. See Courts of Assize and Nisi l 
 
 COMMISSION OF LUNACY. A writ is- 
 sued out of chancery, or such court as may 
 have jurisdiction of the casv^ directed to a 
 proper officer, to inquire whether a i 
 named therein is a lunatic or not 1 Bou- 
 vier, Inst. n. 382. 
 
 COMMISSION OF REBELLION. In Eng- 
 lish Law. A writ formerly issued out of 
 chancery to compel an attendance. It was 
 abolished by the order of August 8, 1 
 
 COMMISSIONED OFFICER. A person in 
 the United States military service of or above 
 the rank of second lieutenant Davis, MU. 
 L. 26.
 
 COMMISSIONER 
 
 548 
 
 COMMISSIONERS OF HIGHWAYS 
 
 COMMISSIONER. See Commission. 
 
 COMMISSIONER OF PATENTS. The ti- 
 tle given by law to the head of the patent 
 office. Prior to 1836 the business of that of- 
 fice was under the immediate charge of a 
 clerk in the state department, who was gen- 
 erally known as the superintendent of the 
 patent office. He performed substantially 
 the same duties which afterwards devolved 
 upon the commissioner, except that he was 
 not required to decide upon the patentability 
 of any contrivance for which a patent was 
 sought, inasmuch as the system of examina- 
 tions had not then been introduced and the 
 applicant was permitted to take out his pat- 
 ent at his own risk. 
 
 Under the existing acts he hears appeals 
 from the examiners in chief, and an appeal 
 lies from his decision in interference cases 
 to the Court of Appeals. Act of Feb. 9, 1893. 
 See Patents ; Patent Office, Examiners in. 
 
 COMMISSIONER, UNITED STATES. An 
 
 officer appointed by the United States Dis- 
 trict Court in each district, in place of Com- 
 missioners of the Circuit Court. The court 
 may appoint such number and in such dis- 
 tricts as it deems best. They hold for four 
 years, subject to removal by the court No 
 person can be both a District Court clerk (or 
 deputy) and commissioner without the ap- 
 proval of the Attorney-General. Act of May 
 28, 1896. A commissioner in proceedings un- 
 der R. S. § 1014, does not hold a "court" ; 
 Todd v. U. S., 158 U. S. 278, 15 Sup. Ct. SS9, 
 39 L. Ed. 982 ; and he is in no constitutional 
 sense a judge; Rice v. Ames, ISO U. S. 371, 
 378, 21 Sup. Ct. 406, 45 L. Ed. 577. He is a 
 mere ministerial officer, who while acting as 
 a committing magistrate in such proceedings 
 exercises duties which are judicial in char- 
 acter ; U. S. v. Jones, 134 U. S. 483, 10 Sup. 
 Ct. 615, 33 L. Ed. 1007 ; U. S. v. Ewing, 140 
 U. S. 142, 11 Sup. Ct. 743, 35 D. Ed. 388; 
 but he cannot punish for contempt commit- 
 ted in his presence; Ex parte Perkins, 29 
 Fed. 900 ; In re Mason, 43 Fed. 510. 
 
 COMMISSIONER OF WOODS AND FOR- 
 ESTS. An officer created by act of parlia- 
 ment of 1817, tQ whom was transferred the 
 jurisdiction of the chief justices of the for- 
 est. Inderwick, The King's Peace. 
 
 COMMISSIONERS OF BAIL. Officers ap- 
 pointed by some courts to take recognizances 
 of bail in civil cases. 
 
 COMMISSIONERS OF DEEDS. Officers 
 appointed by the governors of many of the 
 states, resident in another state or territory, 
 empowered to take acknowledgments, admin- 
 ister oaths, etc., to be used in the state from 
 which they derive their appointment. They 
 have, for the most part, all the powers of a 
 notary public, except that of protesting nego- 
 tiable paper. Rap. & Lawr. Law Diet. 
 
 COMMISSIONERS OF HIGHWAYS. Of- 
 
 ficers having certain powers and duties con- 
 cerning the highway, within the limits of 
 their jurisdiction. They are usually three 
 in number. In some of the states they are 
 county officers, and their jurisdiction is co- 
 extensive with the county. In others, as in 
 New York, Michigan, Illinois, and Wisconsin, 
 they are town or township officers. They 
 have power to establish, alter, and vacate 
 highways ; and it is their duty to cause them 
 to be kept in repair. 
 
 COMMISSIONERS OF SEWERS. A court 
 of record of special jurisdiction in England. 
 
 It was a temporary tribunal, erected by 
 virtue of a commission under the great seal, 
 which formerly was granted pro re nata at 
 the pleasure of the crown, but afterwards at 
 the discretion and nomination of the lord 
 chancellor, lord treasurer, and chief justices, 
 pursuant to the statute of sewers. 23 Hen. 
 VIII. c. 5. 
 
 Its jurisdiction was to overlook the re- 
 pairs of the banks and walls of the sea-coast 
 and navigable rivers and the streams com- 
 municating therewith, and was confined to 
 such county or particular district as the com- 
 mission should expressly name. The com- 
 missioners might take order for the removal 
 of any annoyances or the safeguard and 
 conservation of the sewers within their com- 
 mission, either according to the laws and 
 customs of Romney Marsh, or otherwise, at 
 their own discretion. They were also to as- 
 sess and collect taxes for such repairs and 
 for the expenses of the commission. They 
 might proceed with the aid of a jury or up- 
 on their own view ; 3 Bla. Com. 73 ; Crabb, 
 Hist. E. L. 469. 
 
 COMMISSIONS. Compensation allowed to 
 agents, factors, executors, trustees, receiv- 
 ers, and other persons who manage the af- 
 fairs of others, in recompense for their 
 services. 
 
 The right to such allowance may either 
 be the subject of a special contract, may rest 
 upon an implied contract to pay quantum 
 meruit, or may depend upon statutory pro- 
 visions; 7 C. & P. 584; 9 id. 559. 
 
 The right does not generally accrue till 
 the completion of the services; 4 C. & P. 
 289; 7 Bingh. 99; Sibbald v. Bethlehem Iron 
 Co., 83 N. Y. 378, 38 Am. Rep. 441; and 
 see 10 B. & C. 438; and does not then exist 
 unless proper care, skill, and perfect fidelity 
 have been employed; 3 Campb. 451; 9 Bingh. 
 287; Dodge v. Tileston, 12 Pick. (Mass.) 
 32S; McDonald v. Maltz, 94 Mich. 172, 53 
 N. W. 1058, 34 Am. St. Rep. 331; Smith v. 
 Tripis, 2 Tex. Civ. App. 267, 21 S. W. 722; 
 and the services must not have been illegal 
 nor against public policy; 3 B. & C. 639; 
 Armstrong v. Toler, 11 Wheat (U. S.) 258, 
 6 L. Ed. 468. 
 
 Brokers. The broker is entitled to a fair 
 and reasonable opportunity to perform his
 
 COMMISSIONS 
 
 540 
 
 COMMISSIONS 
 
 obligations, subject to the right of the seller 
 to sell independently, but, that having been 
 granted to him, the right of the principal to 
 terminate his authority is unrestricted, ex- 
 cept only that he may not do it in bad faith, 
 and as a mere device to escape commis- 
 sions; Sibbald v. Iron Co., 83 N. Y. 378, 38 
 Am. Rep. 441; Crowe v. Trickey, 204 U. S. 
 228, 27 Sup. Ct. 275, 51 L. Ed. 454 (where 
 the death of the principal was held to ter- 
 minate the broker's authority though he had 
 found the purchaser, and the sale was after- 
 wards completed by the administrator) ; Fulty 
 v. Wimer, :;i Kan. 576, 9 Pac. 316; Wilson 
 v. Sturgis, 71 CaL 226, L6 Pac. 772; Ropes v. 
 Rosenfeld's Sons, 145 Cal. G79, 79 Pac. 354; 
 that the owner sold the property after the 
 expiration of the contract period and that 
 sueh sale was, to some extent, aided by the 
 broker's efforts, does not give the broker a 
 right to commissions; Donovan v. Weed, 182 
 N. Y. 43, 74 N. E. 563; Kelly v. Marshall, 
 172 Pa. 396, 33 Atl. GOO. 
 
 Where the purchaser's refusal to complete 
 3ie transaction is due to the fact that the 
 seller's title is defective, the broker may nev- 
 ertheless recover his commissions ; Ham- 
 mond v. Crawford, 66 Fed. 425, 14 C. C. A. 
 100; Phelps v. Prusch, 83 Cal. 626, 2. r : Pac. 
 1111; Davis v. Laurence, 52 Kan. 383, '-'-l 
 Pac. 1051; Stange v. Gosse, 110 Mich. 153, 
 
 67 N. W. 1108 ; Yoder v. Randol, 16 Old. 30S, 
 83 Pac. 537, 3 L. R. A. (N. S.) 576; Gilder 
 v. Davis, 137 N. Y. 504, 33 N. E. 599, 20 L. 
 R. A. 398; Parker v. Walker, 86 Tenn. 566, 
 8 S. W. 391 ; Birmingham Land & Loan Co. 
 v. Thompson, 86 Ala. 146, 5 South. 473 ; so 
 he may recover where he has found a pur- 
 chaser ready and willing to complete the 
 contract, though the sale fails because the 
 vendor has been mistaken in the identity of 
 the lands he offered for sale; Arnold v. Bank, 
 126 Wis. 362, 105 N. W. S2S, 3 L. R. A. (N. 
 S.) 5S0. 
 
 Financial inability of the purchaser to per- 
 form his contract to purchase real estate 
 does not deprive the broker of his commis- 
 sions ; Moore v. Irwin, 89 Ark. 2S9, 116 S. W. 
 662, 20 L. R. A. (N. S.) 1168, 131 Am. St. 
 Rep. 97 ; the broker's contract is to effect a 
 bargain, and if he produces a responsible 
 customer, ready to contract, his principal 
 cannot defeat his right to commissions by 
 capriciously refusing to make the contract 
 The proof of the responsibility of the in- 
 tending purchaser is required, not because 
 the broker contracts to guarantee responsi- 
 bility, but to show that the failure to make 
 the contract was not the fault of the broker; 
 Alt v. Doscher, 1S6 N. Y. 566, 79 N. E. 1100; 
 Leuschner v. Patrick (Tex.) 103 S. W. 664; 
 Wray v, Carpenter, 16 Colo. 271, 27 Pac. 248, 
 25 Am. St. Rep. 265; Parker v. Estabrook, 
 
 68 N. H. 349, 44 Atl. 4S4 ; Stewart v. Fow- 
 ler, 53 Kan. 537, 36 Pac. 1002; Jenkins v. 
 Hollingsworth, 83 111. App. 139. 
 
 On the contrary, it is held in some cases 
 
 that, to entitle a broker to his commissions, 
 he must produce a party capable of becom- 
 ing, and who ultimately . the pur- 
 chaser; that it is not sufficient that a con- 
 tract of sale is executed between the pa 
 and a portion of the price paid, where there 
 is a forfeiture of the contract of the 
 financial inability of the pun 
 v. Turnhull, 105 Md. 135, 6G Atl. 13, B U 
 (N. S.) 824, 11 Ann. Cas. 783. SS a bro- 
 ker procures a purchaser of street railway 
 bonds, who refuses to complete his contract 
 
 e of their invalidity, he may no 
 cover his commissions, if he knew such cus- 
 tomer never intended to take and pay for 
 them, but meant to negotiate their sale to 
 other parties for a higher price; Berg v. R. 
 Co. (Tex.) 49 S. W. 921. 
 
 Where he knows, or has reason to believe, 
 that his purchaser is unable to complete his 
 contract, the broker cannot recover commis- 
 sions ; Burnham v. Upton, 174 Mass. -10S, 54 
 N. E. 873; Butler v. Baker, 17 R. I. 582, 23 
 Atl. 1019, 33 Am. St. Rep. 897; Boysen v. 
 Frink, 80 Ark. 25S, 9G S. \Y. 1056; Kittle v. 
 Herzinger, 34 Utah. 337, 97 Pac. 639. Even 
 though the broker did not have the exclusive 
 agency, if he were in fact the procuring cause 
 of the purchase, he is entitled to commis- 
 sions, though a sale was made by the owner 
 in ignorance of the broker's instrumentality 
 in procuring the purchaser; Kiernan v. 
 Bloom, 91 App. Div. -IL'0. 86 N. Y. Supp. 899; 
 Southwick v. Swavienski, 114 App. Div. 681, 
 09 N. Y. Supp. 1079; Craig v. Wead. 58 Neb. 
 782, 79 N. W. 718; Tyler v. Parr, 52 Mo. 
 249; Adams v. Decker, 34 111. App. 17: Craves 
 v. Bains, 78 Tex. 92. 14 S. W. 256; but that 
 under such circumstances no right to com- 
 missions is acquired is held in Quist v. Good 
 fellow, 99 Minn. 509, 110 N. W. 65, 8 L. B. A 
 (N. S.) 153, 9 Ann. Cas. 431; Anderson v. 
 Smythe, 1 Colo. App. 253, 28 Pac. 478. 
 
 A broker is entitled to commission if up 
 to a certain time he was the middleman, 
 though the contract was afterwards com- 
 pleted without his instrumentality; y <'. ft 
 P. 1; [1907] 2 Ir. R, K. B. 212. 
 
 The amount of such commissions is gener- 
 ally a percentage on the sums paid oul "r 
 received. When there is a usage "f trade at 
 the particular place or in the particular 
 business, the amount of commissions allowed 
 to auctioneers, brokers, and factors is regu- 
 lated by such usage, in th 
 agreement; 10 B. & C. 438; Story. Ag. 
 where there is no agreement and no custom, 
 the jury may fix the commission on a Quan- 
 tum meruit; 9 C. & P. 620; Mangnra v. Ball, 
 43 Miss. 288, 5 Am. Rep. 1SS. 
 
 The amount which executors, etc.. are to 
 receive is frequently fixed by statute, sub- 
 ject to modification in special cases by the 
 proper tribunal; Van Buren v. Ins. Co., 12 
 Barb. (N. V.) 671. In the absence of statu- 
 tory provision, commissions cannot be al- 
 lowed to executors for services in partition-
 
 COMMISSIONS 
 
 550 
 
 COMMITMENT 
 
 ing real estate, and allotting and transfer- 
 ring the same; Bruce v. Lorillard, 62 Hun 
 416, 16 N. T. Supp. 900. Where the executor 
 has failed to keep accounts and to make in- 
 vestments according to the directions in the 
 will, and by his negligence has involved the 
 estate in litigation, he will not be allowed 
 commissions ; Brewster v. Demarest, 48 N. 
 J. Eq. 559, 23 Atl. 271. The entire commis- 
 sions are not properly exigible before the 
 administration is terminated; Succession of 
 Sparrow, 40 La. Ann. 4S4, 4 South. 513. An 
 executor is not entitled to commissions on 
 his own indebtedness to the estate ; In re 
 Hoffer"s Estate, 156 Pa. 473, 27 Atl. 11. In 
 England, no commissions are allowed to ex- 
 ecutors or trustees ; 1 Vern. Ch. 316 ; 4 Ves. 
 Ch. 72, n. ; 9 CI. & F. Ill ; even where he 
 carries on the testator's business by his di- 
 rection ; 6 Beav. 371. See the cases in all 
 the states in 2 Perry, Trusts § 91S, note. 
 
 In case the factor guaranties the payment 
 of the debt, he is entitled to a larger com- 
 pensation (called a del credere commission) 
 than is ordinarily given for the transaction 
 of similar business where no such guaranty 
 is made; Paley, Ag. 88. 
 
 See Executors and Administrators ; Prin- 
 cipal and Agent; Real Estate Brokers. 
 
 COMMISSIONS FOR REGULATION 
 OF CORPORATIONS. See Public Service 
 Corporations. 
 
 COMMITMENT. The warrant or order by 
 which a court or magistrate directs a minis- 
 terial officer to take a person to prison. 
 
 The act of sending a person to prison by 
 means of such a warrant or order. Skinner 
 v. White, 9 N. H. 204. 
 
 A commitment should be in writing under 
 the hand and seal of the magistrate, and 
 should show his authority and the time and 
 place of making it; Lough v. Millard, 2 R. 
 I. 436; Somervell v. Hunt, 3 Harr. & McH. 
 (Md.) 113; State v. Caswell, T. U. P. Charlt. 
 (Ga.) 2S0; In re Burford, 3 Cra. (TJ. S.) 
 448, 2 L. Ed. 495. It must be made in the 
 name of the United States or of the com- 
 monwealth or people, as required by the con- 
 stitution of the United States or of the sev- 
 eral states. 
 
 It should be directed to the keeper of the 
 prison, and not generally to carry the party 
 to prison ; 2 Stra. 934 ; 1 Ld. Raym. 424. It 
 should describe the prisoner by his name 
 and surname, or the name he gives as his. 
 
 It ought to state that the party has been 
 charged on oath ; People v. Miller, 14 Johns. 
 (N. Y.) 371; In re Burford, 3 Cra. (U. S.) 
 448, 2 L. Ed. 495 ; but see Com. v. Jackson, 2 
 Va. Cas. 504; State v. Killet, 2 Bail. (S. C.) 
 290; and should mention with convenient 
 certainty the particular crime charged against 
 the prisoner; In re Burford, 3 Cra. (U. S.) 
 448, 2 L. Ed. 495 ; 11 St. Tr. 304, 318 ; Day v. 
 Day, 4 Md. 262; Young v. Com., 1 Rob. (Va.) 
 744 ; Ex parte Rohe, 5 Ark. 104 ; In re How- 
 
 ard, 26 Vt. 205; but a defect in describing 
 the offence is immaterial if it is sufficiently 
 described in the order endorsed on the depo- 
 sition ; Ex parte Estrado, 88 Cal. 316, 26 Pac. 
 209. It 'should point out the place of impris- 
 onment, and not merely direct that the party 
 be taken to prison ; 2 Stra. 934 ; 1 Ld. Raym. 
 424. 
 
 It may be for further examination, or 
 final. If final, the command to the keeper 
 of the prison should be to keep the prisoner 
 "until he shall be discharged by due course 
 of law," when the offence is not Mailable; 
 see Washburn v. Belknap, 3 Conn* 502; 29 
 E. L. & E. 134 ; when it is bailable, the gaol- 
 er should be directed to keep the prisoner in 
 his "said custody for want of sureties, or 
 until he shall be discharged by due course 
 of law." When the commitment is not final, 
 it is usual to commit the prisoner "for fur- 
 ther hearing." 
 
 The word commit in a statute has a tech- 
 nical meaning, and a warrant which does 
 not direct an officer to commit a party to 
 prison but only to receive him into custody 
 and safely keep him for further examina- 
 tion, is not a commitment ; Gilbert v. U. S., 
 23 Ct. CI. 218. 
 
 COMMITTEE. One or more members of 
 a legislative body, to whom is specially re- 
 ferred some matter before that body, in or- 
 der that they may examine into it and re- 
 port to the body which delegated this au- 
 thority to them. 
 
 The minority of a committee to which a 
 corporate power has been delegated, cannot 
 bind the majority, or do any valid act, in 
 the absence of any special provision other- 
 wise; Brown v. District of Columbia, 127 U. 
 S. 579, 8 Sup. Ct. 1314, 32 L. Ed. 262. 
 
 A guardian appointed to take charge of 
 the person or estate of one who has been 
 found to be non compos mentis. 
 
 For committee of the person, the next of 
 kin is usually selected ; and, in case of the 
 lunacy of a husband or wife, the one who 
 is of sound mind is entitled, unless under 
 very special circumstances, to be the com- 
 mittee of the other ; Shelf. Lun. 137, 140. It 
 is the duty of such a person to take care 
 of the lunatic. 
 
 For committee of the estate, the heir at 
 law is favored. Relations are preferred to 
 strangers ; but the latter may be appointed ; 
 Shelf. Lun. 144. It is the duty of such com- 
 mittee to administer the estate faithfully 
 and to account for his administration. H© 
 cannot, in general, make contracts in rela- 
 tion to the estate of the lunatic, or bind it, 
 without a special order of the court or au- 
 thority that appointed him. 
 
 COMMITTING MAGISTRATE. See Mag- 
 istrate; Justice of the Peace. 
 
 C0MMITTITUR PIECE. In English Law. 
 An instrument in writing, on paper or parch-
 
 COMMITTITUR PIECE 
 
 551 
 
 C MM DITY 
 
 ment, which charges a person already In 
 prison, in execution at the suit of the person 
 who arrested him. 
 
 COMMIXTION. In Civil Law. A term 
 used to signify the act by which goods are 
 mixed together. 
 
 The matters which are mixed are dry or liquid. 
 In the commixtion of the former, the matter retains 
 Its substance and individuality; in the latttr, the 
 substance no longer remains distinct. The commix- 
 tion of liquid is called confusion (q. v.), and that of 
 solids a mixture. Lee. Li- m. du Dr. Rom. §§ 370, 
 371; Story, Bailm. § 40; 1 Bouvier, Inst. n. 506. 
 
 COMMODATE. In Scotch Law. A gratu- 
 itous loan for use. Erskine, Inst. b. 3, t. 1, 
 § 20; 1 Bell, Com. 225. The implied con- 
 tract of the borrower is to return the thing 
 borrowed in the same condition as received. 
 
 Judge Story regrets that this term has not been 
 adopted, as mandate has been from mandatum. 
 Story, Bailm. § 2L'l. Ayliffe, in his Pandects, has 
 gone further and terms the bailor the commodant, 
 and the bailee the commodatory , thus avoiding those 
 circumlocutions which, in the common phraseology 
 of our law, have become almost indispensable. Ay- 
 liffe, Pand. b. 4, t. 16, p. 517. Brown, in his Civil 
 Law, vol. 1, 352, calls the property loaned "commo- 
 datcd property." 
 
 C0MM0DAT0. In Spanish Law. A con- 
 tract by which one person lends gratuitously 
 to another some object not consumable, to 
 be restored to him in kind at a given period. 
 
 COMMODATUM. A contract by which 
 one of the parties binds himself to return 
 to the other certain personal chattels which 
 the latter delivers to him to be used by him 
 without reward; loan for use. See Bail- 
 ment. 
 
 COMMODITIES CLAUSE. The act of 
 Congress, June 29, 1906, provides that it 
 shall be unlawful for any railroad company 
 to transport commodities (excepting timber 
 and its manufactured products) manufac- 
 tured, mined or produced by it, or under its 
 authority, or which it may own in whole or 
 in part, or in which it may have any inter- 
 est, direct or indirect, except such articles 
 or commodities as may be necessary or in- 
 tended for its use in its business; U. S. v. 
 R. Co., 220 U. S. 257, 31 Sup. Ct. 387, 55 L. 
 Ed. 458. 
 
 Stock ownership in a bona fide corpora- 
 tion, irrespective of the extent of such own- 
 ership, does not preclude the railroad com- 
 pany from transporting such commodities; 
 TJ. S. v. Delaware & H. Co., 213 U. S. 3GG, 29 
 Sup. Ct. 527, 53 L. Ed. 83G ; unless it uses its 
 power as a stockholder to obliterate all dis- 
 tinctions between the two corporations ; U. 
 S. v. R. Co., 220 U. S. 257, 31 Sup. Ct 3S7, 
 55 L. Ed. 458. 
 
 See Commerce; Common Carriers; Rail- 
 roads. 
 
 COMMODITY. Commodity is a broader 
 term than merchandise, and may mean al- 
 most any description of article called mova- 
 ble or personal estate. Shuttleworth v. State, 
 35 Ala. 415; State v. Henke, 19 Mo. 225. 
 
 Labor is not a commodity; Rohlf ▼. Kase- 
 meier, 140 la. 182, 118 N. \V. 276, 23 L. R. v. 
 (N. S.) 1285. 
 
 COMMODORE. A grade in the United 
 states navy, superior to a captain. Omitted 
 from the active list. Act of March 3. 
 
 COMMON. An incorporeal her 
 which consists in a prolit which one 
 has in connection with one or moi 
 in the land of another. Trustees of \\ • 
 University of Pennsylvania v. Robinson, 12 
 S. & EL (Pa.) 32; Van Rensselaer v. Rad- 
 cliff, 10 Wend. (N. Y.) 647, 25 Am Dec. 582; 
 Livingston v. Ten Broeck, 16 Johns. (N. Y.) 
 14, 8 Am. Dec. 287; Leyman v. AbeeL 16 
 Johns. (X. Y.) 30; Thomas v. Inhabitants 
 Of Marshfleld, 10 Pick. (Mass.) 864; 3 Kent 
 403. 
 
 Common of digging, or common in the soil, 
 is the right to take for one's own use part 
 of the soil or minerals in another's lands: 
 the most usual subjects of the right are 
 sand, gravel, stones and clay. It is of a 
 very similar nature to common of es: 
 and of turbary. Elton, Com. 109; Black, 
 L. Diet. 
 
 Common of estovers is the liberty of tak- 
 ing necessary wood, for the use of furniture 
 of a house or farm, from another man's es- 
 tate. This right is Inseparably attached to 
 the house or farm, and is not apportionable. 
 If, therefore, a farm entitled to estovers be 
 divided by the act of the party among sever- 
 al tenants, neither of them can take estovers, 
 and the right is extinguished; 2 l'.la. Com 
 34; Plowd. 381; Van Rensselaer v. Radcliff, 
 10 Wend. (N. Y.) 639, 25 Am. Dec. 582. It 
 is to be distinguished from the riL'lit to 
 estovers which a tenant for life has in the 
 estate which he occupies. See i: 
 
 Common of pasture is the right of feeding 
 one's beast on another's land. It is either 
 appendant, appurtenant, because of vicinage, 
 or in gross. 
 
 Comwon of piscary is the liberty of fish- 
 ing in another man's water. 2 Bla. Coi 
 See Fishery. 
 
 Common of shack. The right of persons 
 occupying lands, lying together in the same 
 common field, to turn out their cattle after 
 harvest, or where lands were fallow, to feed 
 promiscuously in that field; Steph. Com., 
 623 ; 1 P.. & Aid. 710. 
 
 Common of turbary is the liberty of dig- 
 ging turf in another man's ground. Com- 
 mon of turbary can only be appendant or 
 appurtenant to a house, not to land-, be- 
 cause turves are to be spent in the house; 
 4 Co. 37; 3 Atk. 189; Nov 145; 7 Bast 127. 
 
 The taking seaweed from a beaeh Is a com- 
 monable right in Rhode Island : Knowles v. 
 Nichols, 2 Curt. C. C. 571, Fed. Cas. No. 
 7.S97; Kenyon v. Nichols, 1 R. I. 106; Hall 
 v. Lawrence. 2 R. I. 218. 57 Am. Dec. 715; 
 In Virginia there are statutory provisions 
 concerning the use of all unappropriated
 
 COMMON 
 
 552 
 
 COMMON 
 
 lands on the Chesapeake Bay, on the shore 
 of the sea, or of any river or creek, and the 
 bed of any river or creek in the eastern part 
 of the commonwealth, ungranted and used 
 as common; Va. Code, c. 62, § 1. 
 
 In most of the cities and towns in the 
 United States, there are considerable tracts 
 of land appropriated to public use. These 
 commons were generally laid out with the 
 cities or towns where they are found, either 
 by the original proprietors or by the early 
 inhabitants. See Parks. 
 
 Where land thus appropriated has been 
 accepted by the public, or where individuals 
 have purchased lots adjoining land so appro- 
 priated, under the expectation excited by 
 its proprietors that it should so remain, the 
 proprietors cannot resume their exclusive 
 ownership; Abbott v. Mills, 3 Vt. 521, 23 
 Am. Dec. 222; Emerson v. Wiley, 10 Pick. 
 (Mass.) 310 ; Stiles v. Curtis, 4 Day (Conn.) 
 328; Proctor v. Ferebee, 36 N. C. 144, 36 
 Am. Dec. 34; Carr v. Wallace, 7 Watts (Pa.) 
 394. And see Mansfield v. Hawkes, 14 Mass. 
 440 ; Rogers v. Goodwin, 2 Mass. 475 ; White 
 v. Smith, 37 Mich. 291; Emerson v. Thomp- 
 son, 2 Pick. (Mass.) 475; Trustees of West- 
 ern University v. iRobinson, 12 S. & R. (Pa.) 
 32; State v. Trask, 6 Vt. 355, 27 Am. Dec. 
 554. 
 
 Common Appendant. Common of pasture 
 appendant is a right annexed to the pos- 
 session of land, by which the owner there- 
 of is entitled to feed his beasts on the wastes 
 of the manor. It can only be claimed by 
 prescription: so that it cannot be pleaded 
 by way of custom ; 1 Rolle, Abr. 396 ; 6 
 Coke 59. It is regularly annexed to arable 
 land only, and can only be claimed for such 
 cattle as are necessary to tillage, as horses 
 and oxen to plough the land, and cows and 
 sheep to manure it; 2 Greenl. Cruise, Dig. 
 4, 5; Van Rensselaer v. Radcliff, 10 Wend. 
 (N. Y.) 647, 25 Am. Dec. 5S2. Common ap- 
 pendant may by usage be limited to any 
 certain number of cattle; but where there 
 is no such usage, it is restrained to cattle 
 levant and couchant upon the land to which 
 it is appendant; Digb. R. P. 156; 2 M. & 
 R. 205 ; 2 Dane, Abr. 611, § 12. It may be 
 assigned; and by assigning the land to 
 which it is appended, the right passes as a 
 necessary incident to it. It may be appor- 
 tioned by granting over a parcel of the land 
 to another, either for the whole or a part 
 of the owner's estate; 4 Co. 36; 8 id. 78. 
 It may be extinguished by a release of it to 
 the owner of the land, by a severance of the 
 right of common, by unity of possession of 
 the land, or by the owner of the land, to 
 which the right of common is annexed, be- 
 coming the owner of any part of the land 
 subject to the right; Bell v. R. Co., 25 Pa. 
 161, 64 Am. Dec. 687; Livingston v. Ten 
 Broeck, 16 Johns. (N. Y.) 14, 8 Am. Dec. 2S7 ; 
 Cro. Eliz. 592. 
 
 Common of estovers or of piscary, which 
 may also be appendant, cannot be appor- 
 tioned ; 8 Co. 78. But see Hall v. Lawrence, 
 2 R. I. 218, 57 Am. Dec. 715. 
 
 Common Appurtenant. Common appurte- 
 nant differs from common appendant in the 
 following particulars, viz.: it may be claim- 
 ed by grant or prescription, whereas com- 
 mon appendant can only arise from pre- 
 scription; it does not arise from any connec- 
 tion of tenure, nor is it confined to arable 
 land, but may be claimed as annexed to any 
 kind of land ; it may be not only for beasts 
 usually commonable, such as horses, oxen, 
 and sheep, but likewise for goats, swine, 
 etc. ; it may be severed from the land to 
 which it is appurtenant, it may be com- 
 menced by grant; and an interrupted usage 
 for twenty years is evidence of a grant. In 
 most other respects commons appendant 
 and appurtenant agree; 2 Greenl. Cruise, 
 Dig. 5 ; 30 E. L. & Eq. 176 ; 15 East 108. 
 
 Common because of Vicinage. The right 
 which the inhabitants of two or more con- 
 tiguous townships or vills have of inter- 
 commoning with each other. It ought to 
 be' claimed by prescription, and can only be 
 used by cattle levant and couchant upon the 
 lands to which the right is annexed r and 
 cannot exist except between adjoining 
 townships, where there is no intermediate 
 land; Co. Litt. 122 a; 4 Co. 38 a; 7 id. 5; 
 10 Q. B. 581, 589, 604; Smith v. Floyd, 18 
 Barb. (N. Y.) 523. 
 
 Common in Gross. A right of common 
 which must be claimed by deed or prescrip- 
 tion. It is a personal and not a prsedial 
 right It has no relation to land, but is an- 
 nexed to a man's person, and may be for a 
 certain or indefinite number of cattle. It 
 cannot be aliened so as to give the entire 
 right to several persons to be enjoyed by 
 each in severalty. And where it comes to 
 several persons by operation of law, as by 
 descent, it is incapable of division among 
 them, and must be enjoyed jointly. Com- 
 mon appurtenant for a limited number of 
 cattle may be granted over, and by such 
 grant becomes common in gross ; Co. Litt. 
 122 a, 164 a; 5 Taunt. 244; Ley man v. Abeel, 
 16 Johns. (N. Y.) 30; 2 Bla. Com. 34. 
 
 See Viner, Abr. Common; Bacon, Abr. 
 Common; Com. Dig. Common; 2 Bla. Com. 
 34; 2 Washb. R. P.; Williams, Rights of 
 Common (1880) ; 3 Holdsw. Hist. E. L. 120. 
 
 COMMON APPEARANCE. Where the de- 
 fendant in an action after due service of 
 process on him has removed from the juris- 
 diction without having entered an appear- 
 ance, or cannot be found, the plaintiff may 
 file a common appearance and enter a rule 
 on defendant to plead. This is by stat. 12 
 Geo. II., c. 29, and is the practice in Pennsyl- 
 vania ; 1 Troub. & Haly, Pr. 159; Bender 
 v. Ryan, 9 W. N. C. (Pa.) 144 ; and in replev- 
 in under the act of 190L
 
 COMMON ASSURANCES 
 
 553 
 
 COMMON CARRIERS 
 
 COMMON ASSURANCES. Deeds which 
 make safe or assure to a man the title to 
 his estate, whether they are deeds of con- 
 veyance or to charge or discharge. 
 
 COMMON BAIL. Fictitious sureties. 
 
 In the fictitious proceedings by which the 
 King's Bench extended its jurisdiction of 
 ordinary civil suits, if the defendant did 
 not appear to the Bill of Middlesex or the 
 Latitat, he was in contempt; this, too, was 
 fictitious; the plaintiff was allowed to en- 
 ter an appearance for the defendant, with 
 John Doe and Richard Roe as sureties. This 
 •was "common bail." See Bill of Middlesex. 
 
 COMMON BAR. A plea to compel the 
 plaintiff to assign the particular place where 
 the trespass has been committed. Steph. 
 PI., And. ed. 351. It is sometimes called a 
 blank oar. 
 
 COMMON BARRATRY. See Barratry. 
 
 COMMON BENCH. The ancient name for 
 the court of common pleas. See Bench; 
 Bancus Communis. 
 
 COMMON CARRIERS. One whose busi- 
 ness, occupation, or regular calling it is to 
 carry chattels for all persons who may 
 choose to employ and remunerate him. 
 Dwight v. Brewster, 1 Pick. (Mass.) 50, 11 
 Am. Dec. 133; Fish v. Chapman, 2 6a. 353, 
 46 Am. Dec. 393; Schoul. Bailm. § 345; 
 Naugatuck 'R. Co. v. Button Co., 24 Conn. 
 479. 
 
 The definition includes carriers by land 
 and water. They are, on the one hand, 
 stagecoach and omnibus proprietors, rail- 
 road and street railway companies ; Spell- 
 man v. Transit Co., 36 Neb. S90, 55 N. W. 
 270, 20 L. R. A. 316, 38 Am. St. Rep. 753 ; 
 truckmen, wagoners, and teamsters, carmen 
 and porters ; and express companies, wheth- 
 er such persons undertake to carry goods 
 from one portion of the same town to an- 
 other, or through the whole extent of the 
 country, or even from one state or kingdom 
 to another. And, on the other hand, this 
 term includes the owners and masters of 
 every kind of vessel or water-craft who set 
 themselves before the public as the car- 
 riers of freight of any kind for all who 
 choose to employ them, whether the extent 
 of their navigation be from one continent 
 to another or only in the coasting trade or 
 in river or lake transportation, or whether 
 employed in lading or unlading goods or in 
 ferrying, with whatever mode of motive 
 power they may adopt; Story. Bailm. § 494: 
 2 Kent 598, 599; Redf. Railw. § 124; 1 
 Salk. 249: Fish v. Chapman. 2 Ga. 349, 46 
 Am. Dec. 393; Knox v. Rives, 14 Ala. 2G1. 
 48 Am. Dec. 97; Liverpool & G. W. Steam 
 Co. v. Ins. Co., 129 T T . S. 397, 9 Sup. Ct 469. 
 32 L. Ed 788; Robertson v. Kennedy, 2 
 Dana (Ky.) 431. 26 Am. Dec. 466 ; Dibble v. 
 Brown. 12 Ga. 217. 56 Am. Dec. 460. An oil 
 pipe line company is a common carrier ; 
 
 Giffin v. Tipe Lines, 172 Pa. 5S0, 33 Atl. 
 578. 
 
 General truckman are con criers; 
 
 !i Architectural Iron \ Ilurl- 
 
 but, 158 N. Y. : u . St. 
 
 Rep. 4.32. Telegraph or te 
 nies formerly were held not to be common 
 carriers; Tyler v. Telegraph I 
 14 Am. Rep. 38; Leonard v. : h Co., 
 
 11 N. Y. 544, 1 Am. Rep. 446; Passmore v. 
 Telegraph Co., 78 Pa. Z 
 graph Co., 45 Barb. (X. Y.) 274; W< 
 Union Tel. Co. v. Fontaine, 433; 
 
 but were subject to the runs governing 
 common carriers and others engaged in like 
 public employment; Delaware vV: A. Tele- 
 graph & Telephone Co. v. Delaware, 50 Fed. 
 677, 2 C. C. A. 1; Primrose v. Telegraph Co., 
 154 U. S. 1, 14 Sup. Ct. 1098, 3S L. Ed. 883. 
 
 The term "common carrier," as used in the 
 Interstate Commerce Act and its amendments, 
 includes express and sleeping car companies, 
 telegraph, telephone and cable companies 
 (both wire and wireless), and pipe lines. 
 See Telegraph Companies; T Com- 
 
 panies. 
 
 The liability of the owner of a tug-boat 
 to his tow is not that of a common carrier: 
 Hays v. Millar. 77 Ta. 238, 18 Am. Rep. 445; 
 Caton v. Rumney, 13 Wend. (N. Y.i 387; The 
 New Philadelphia, 1 Black fl 17 I.. 
 
 Ed. 84; White v. The Mary Ann. 6 CaL 462, 
 65 Am. Dec. 523. 
 
 And although the carrier receives the 
 goods as a forwarder only, yet if his con- 
 tract is to transport and to deliver them at 
 a specified address, he is liable as a common 
 carrier: Nashua Lock Co. v. R. Co., 48 
 N. H. 339, 2 Am. Rep. 242. 
 
 Common carriers are responsible for all 
 loss or damage during transportation, from 
 whatever cause, except the act of God or 
 the public enemy; 2 Ld. Raym. 909. 918; 
 1 Salk. 18 and cases cited: 25 B. L. & Eq. 
 50.") : 2 Kent 507. 598; Turney v. Wilson, 
 7 Yerg. (Tenn.) 340, 27 Am. Dec. 515; Mur- 
 phy v. Staton, 3 Munf. (Ya.i 239; M< Arthur 
 v. Sears, 21 Wend. (N. Y.) 190; McCall v. 
 Brock, 5 Strob. (S. C.) li:»: Faulkner v. 
 Wright, Rice (S. C.) 108 : New Brunswick 
 Steamboat Co. v. Tiers, 24 N. J. 1 
 Am. Dec. 391; Harris v. Rami. 4 N. il. 259 
 17 Am. Dec. 421; Christenson v. Express 
 Co., 15 Minn. 279 (Gil. 208), 2 Am. Rep. 122; 
 South & X. A. R. Co. v. Wood, 66 Ala. 167, 
 41 Am. Rep. 749; Inman ,v Co. v. R. Co., 
 159 Fed. 960. The act of God is held to ex- 
 tend only to such Inevitable accidents as 
 occur without the intervention of man's 
 agency; McArthnr v. Sears, L'l Wend. (N. 
 Y.) 190; which could not be avoided by the 
 exercise of due skill and care: Hart v. Al- 
 len, 2 Watts (Pa.) 114; Memphis & C. R. Co. 
 v. Reeves, 10 Wall. (U. S.) 176, 19 L. Ed. 
 909 ; but where freight cars are stopped by 
 a flood and the contents stolen, the loss is 
 not due to inevitable accident, act of God,
 
 COMMON CARRIERS 
 
 554 
 
 COMMON CARRIERS 
 
 or insurrection ; Lang v. R. Co., 154 Pa. 
 342. See Act of God. 
 
 The carrier is not responsible for losses 
 occurring from natural causes, such as frost, 
 fermentation, evaporation, or natural decay 
 of perishable articles, or the natural and 
 necessary wear in the course of transpor- 
 tation, or the shipper's carelessness, provid- 
 ed the carrier exercises all reasonable care 
 to have the loss or deterioration as little as 
 practicable; Bull. N. P. 69; 2 Kent 299; 
 Story, Bailm. § 492 a; Warden v. Greer, 6 
 Watts (Pa.) 424; Redf. Railw. § 141; Jordan 
 v. Exp. Co., 86 Me. 225, 29 Atl. 980; The 
 Guiding Star, 53 Fed. 936; International & 
 G. N. R. Co. v. Hynes, 3 Tex. Civ. App. 20, 
 21 S. W. 622; Goodman v. Nav. Co., 22 Or. 
 14, 28 Pac. 894. See Wabash St. L. & P. Ry. 
 Co. v. Jaggerman, 115 111. 407, 4 N. E. 641 ; 
 Fox v. R. Co., 148 Mass. 220, 19 N. E. 222, 
 1 L. R. A. 702. But a carrier which re- 
 ceives perishable goods for through trans- 
 portation is bound to furnish cars adapted 
 to preserve them during the journey, and 
 cannot escape its duty by delegating to an 
 independent contractor the task of furnish- 
 ing and icing a refrigerator car; St. Louis, 
 I. M. & S. R. Co. v. Renfroe, 82 Ark. 143, 
 100 S. W. 8S9, 10 L. R. A. (N. S.) 317, 118 
 Am. St. Rep. 58; damp weather and delays 
 incident to railway traffic are no excuse 
 for failure properly to ice cars; C. C. Taft 
 Co. v. Exp. Co., 133 la. 522, 110 N. W. 897. 
 
 In every contract for the carriage of goods 
 by sea, unless otherwise expressly stipulated, 
 there is a warranty on the part of the ship- 
 owner that the ship is seaworthy when she 
 begins her voyage, and his undertaking is 
 not discharged because the want of fitness 
 is the result of latent defects; The Cale- 
 donia, 157 U. S. 124, 15 Sup. Ct. 537, 39 L. 
 Ed. 644. 
 
 Carriers, both by land and water, when 
 they undertake the general business of car- 
 rying every kind of goods, are bound to 
 carry for all who offer; and if they refuse, 
 without just excuse, they are liable to an 
 action; Dwight v. Brewster, 1 Pick. (Mass.) 
 50, 11 Am. Dec. 133 ; Pomeroy v. Donaldson, 
 5 Mo. 36; Hale v. Navigation Co., 15 Conn. 
 539, 39 Am. Dec. 398; Jencks v. Coleman, 2 
 Sumn. ,221, Fed. Cas. No. 7,258; Sewall v. 
 Allen, 6 Wend. (N. Y.) 335; Citizens' Bank 
 v. Steamboat Co., 2 Sto. 16, Fed. Cas. No. 
 2,730; L. R. 1 C. P. 423; Piedmont Mfg. Co. 
 v. R. Co., 19 S. C. 353; New Jersey Steam 
 Nav. Co. v. Bank, 6 How. (U. S.) 344, 12 L. 
 Ed. 465; 30 L. J. Q. B. 273. 
 
 A common carrier is bound to treat all 
 shippers alike and may be compelled to do 
 so by mandamus; Missouri Pac. R. Co. v. 
 Flour Mills Co., 211 U. S. 612, 29 Sup. Ct. 
 214, 53 L. Ed. 352; State v. Ry. Co., 52 La. 
 Ann. 1850, 28 South. 284; it cannot law- 
 fully reject some goods and afterwards re- 
 ceive and transport others when at the 
 time of refusal there is room for the re- 
 
 jected goods ; Ocean S. S. Co. of Savannah v. 
 Supply Co., 131 Ga. 831, 63 S. E. 577, 20 L. 
 R. A. (N. S.) 867, 127 Am. St. Rep. 265, 15 
 Ann. Cas. 1044. It must furnish cars when 
 requested by a shipper, and if unable to do 
 so must advise the shipper of that fact; 
 Di Giorgio Importing & Steamship Co. v. R. 
 Co., 104 Md. 693, 65 Atl. 425, 8 L. R. A. (N. 
 S.) 108; but at common law there is no 
 duty to furnish sufficient cars for transpor- 
 tation beyond its own line of road; Gulf, C. 
 & S. F. R. Co. v. State, 56 Tex. Civ. App. 353, 
 120 S. W. 1028. The Hepburn Act (June 29, 
 1906) made it the duty of interstate carriers 
 to furnish cars; this invalidated all state 
 laws on the same subject; Chicago, R. I. & 
 P. R. Co. v. Elevator Co., 226 U. S. 426, 33 
 Sup. Ct. 174, 57 L. Ed. 284, reversing Hard- 
 wick Farmers' Elevator Co. v. R. Co., 110 
 Minn. 25, 124 N. W. 819, 19 Ann. Cas. 1088; 
 Yazoo & M. V. R. Co. v. Grocery Co., 227 
 
 U. S. 1, 33 Sup. Ct. 213, 55 L. Ed. . But 
 
 the business of a common carrier may be 
 restricted within such limits as he may deem 
 expedient, if an individual, or which may 
 be prescribed in its grant of powers, if a 
 corporation, and he is not bound to accept 
 goods out of the line of his usual business. 
 But should the carrier accept goods not 
 within the line of his business, he assumes 
 the liability of a common carrier as to the 
 specific goods accepted; Farmers' & Mechan- 
 ics' Bank v. Transp. Co., 23 Vt. 1S6, 56 Am. 
 Dec. 68; Hays v. Mouille, 14 Pa. 48; Bennett 
 v. Dutton, 10 N. H. 481 ; Powell v. Mills, 30 
 Miss. 231, 64 Am. Dec. 158; New York C. R. 
 Co. v. Lockwood, 17 Wall. (U. S.) 357, 21 L. 
 Ed. 627; Sewall v. Allen, 6 Wend. (N. Y.) 
 335; Kimball v. R. Co., 26 Vt 248, 62 Am. 
 Dec. 567. The carrier may require freight 
 to be paid in advance; but in an action for 
 not carrying, it is only necessary to allege 
 a readiness to pay freight ; 8 M. & W. 372; 
 Galena & C, U. R. Co. v. Rae, 18 111. 488, 68 
 Am. Dec. 574; Knox v. Rives, 14 Ala. 249, 
 48 Am. Dec. 97. It is not required to prove 
 or allege a tender, if the carrier refuse to 
 accept the goods for transportation. The 
 carrier is entitled to a lien upon the goods 
 for freight; 2 Ld. Raym. 752; and for ad- 
 vances made to other carriers; White v. 
 Vann, 6 Humphr. (Tenn.) 70, 44 Am. Dec. 
 294; Bissel v. Price, 16 111. 408; Palmer v. 
 Lorillard, 16 Johns. (N. Y.) 356; Boggs v. 
 Martin, 13 B. Monr. (Ky.) 243. The consign- 
 or is prima facie liable for freight; but the 
 consignee may be liable when the consignor 
 is his agent, or when the title is in him and 
 he accepts the goods ; 3 Bingh. 383; Merian 
 v. Funck, 4 Den. (N. Y.) 110; New York & 
 Harve Steam Nav. Co. v. Young, 3 E. D. 
 Sm. (N. Y.) 187. A shipper must pay the 
 combined rates over connecting railroads 
 existing at the time of the shipment, and he 
 cannot take advantage of a reduction, while 
 the goods are in transit over the first road, 
 if there are no joint through rates; Payne
 
 COMMON CARRIERS 
 
 555 
 
 COMMON CARRIERS 
 
 v. Atchison, T. & S. F. R. Co., 12 Int St 
 Com. Rep. 190. 
 
 Common carriers may qualify their com- 
 mon-law responsibility by special contract; 
 4 Coke s:j; l Ventr. 238; Story, Bailm. § 
 549; New York C. R. Co. v. Lock wood, 17 
 Wall. (U. S.) 357, 21 L. Ed. 627; Michigan 
 
 C. It. Co. v. Mfg. Co., 1G Wall. (U. S.) 318, 
 21 L. Ed. 207: Trans],. Co. v. Oil 
 Co., G3 Pa. 14, 3 Am. Rep. 516; Indianapolis, 
 
 D. & W. R. Co. v. Forsythe, 4 Ind. App. 326, 
 29 N. E. 1138. A carrier cannot exact as a 
 condition precedent that a shipper must sign 
 a contract in writing limiting the common 
 law liability; Atchison, T. & S. F. R. Co. v. 
 Dill, 48 Kan. 210, 29 Pac. IIS; Missouri, K. 
 & T. R. Co. of Texas v. Carter, 9 Tex. Civ. 
 App. G77, 2!) S. W. 565. A contract to quali- 
 fy the common-law liability may be shown 
 by proving a notice, brought home to ami 
 assented to by the owner of the goods or his 
 authorized agent, wherein the carrier stipu- 
 lates for a qualified liability; 8 M. & W. 
 New Jersey Steam Nav. Co. v. Bank, How. 
 (U. S.) 344, 12 L. Ed. 4G5; Dorr v. Nav. Co., 
 11 N. Y. 491, 62 Am. Dec. 125; Laing v. 
 Colder, 8 Pa. 479, 49 Am. Dec. 533; Swindler 
 v. Hilliard, 2 Rich. (S. C.) 286, 45 Am. Dec. 
 732; Reno v. Ilogan, 12 B. Monr. (Ky.) 63, 
 54 Am. Dec. 513; Farmers' & Mechanics' 
 Bank v. Transp. Co., 23 Vt. 186, .50 Am. Dec. 
 68; Barney v. Prentiss, 4 liar. & J. (Md.) 
 317, 7 Am. Dec. 670. A carrier may for a 
 consideration limit its common law liability; 
 Simmons Hardware Co. v. Ry. Co., 140 Mo. 
 App. 130, 120 S. W. 6G3; a mere agreement 
 to carry is not a sufficient consideration ; 
 Burgher v. R. Co., 139 Mo. App. 62, 120 S. 
 W. G73 ; the limitation must be made by spe- 
 cial contract; Central of Georgia Ry. Co. v. 
 Hall, 124 Ga. 322, 52 S. E. 679, 4 L. R. A. 
 (N. S.) 898, 110 Am. St. Rep. 170, 4 Ann. Cas. 
 128; and no contract will be implied from 
 any condition in a bill of lading unless clear- 
 ly brought to the shipper's attention at the 
 time of shipment; Baltimore & O. R. Co. v. 
 Doyle, 142 Fed. 669, 74 C. C. A. 245. In 
 the case of passage tickets for an ocean 
 voyage a limitation with regard to bag- 
 gage liability covers a loss occasioned by 
 negligence although not expressly provided 
 for; Tewes v. S. S. Co., 1S6 N. Y. 151, 78 N. 
 
 E. 864, 8 L. R. A. (N. S.) 199, 9 Ann. Cas. 909. 
 A contract by a carrier limiting his liability 
 for negligence is governed by the lex loci 
 contractus; Fairchild v. R. Co., 148 Pa. 527, 
 24 Atl. 7!). 
 
 But the carrier cannot contract against 
 his own negligence or the negligence of his 
 employes ami agents; Muser v. Exp. Co., 1 
 Fed. 382; Welch v. R. Co., 41 Conn. ::::::: 
 New York C. R. Co. v. Lockwood, 17 Wall. 
 (U. S.) 357, 21 L. Ed. 627; Adams Exp. Co. 
 v. Sharpless, 77 Pa. 516; Inman v. R. Co.. 129 
 U. S. 12S, 9 Sup. Ct. 249, 32 L. Ed. 012; 
 Liverpool & G. W. Steam Co. v. Ins. Co., 129 
 U. S. 397, 9 Sup. Ct. 469, 32 L. Ed. 788; The 
 
 Edwin I. Morrison, 153 O. S. 199, 14 Sup. 
 23, 38 L. Ed- 688; I-. EL 2 Ap] , 
 South & N. A. EL Co. ■•. 
 368; Merchants' Despatch 1 
 Theilbar, 86 111. 71; Wright v. Gaff, G Ind. 
 in;: Ohio & M. R. Co. v. : Ind. 471, 
 
 17 Am. Rep. 719; Hoadley v. 1 .. 115 
 
 Mass. 304, 15 Am. Rep. 106; L 
 Co., -1- Mo. 8S, 97 Am. Dj e ab- 
 
 sence of legislation by co 
 impose upon common carriers even in 
 state business a liability for their 
 gence, a contract to the contrary notwith- 
 standing; Pennsylvania R. Co. v. Hughes, 191 
 U. s. 177, 24 Sup. ct. 132, 48 I.. Ed, 
 usually a common carrier cannot limit its 
 liability lor loss due to its i : Cen- 
 
 tral of Georgia R. Co. v. 
 
 52 S. E. 679, 1 L. R. A. (X. S.) 89S, 110 Am. 
 St. Rep. 170, 4 Ann. ('as. 128; Ohio & M. R. 
 Co. v. Selby, 47 Ind. 471, 17 Am. 
 Russell v. R. Co.. 157 Ind. :;".», Gl N. B. 678, 
 55 L. R. A. 253, 87 Am. St. Rep. 211; Balti- 
 more & O. S. W. Ry. Co. v. Voigt, 176 U. S. 
 498, 20 Sup. Ct. 385, 44 L. Ed. 560; Pitts- 
 burgh, C, C. & St. L. Ry. Co. v. Mahoney, 
 148 Ind. 196, 46 N. E. 917, 47 N. E. 404, 40 
 L. R. A. 101, 62 Am. St. Rep. 503; even 
 though a reduced rate based on a limited 
 valuation of the property has been approved 
 by the state commission ; Everett v. R. Co., 
 138 X. C. 68, 50 S. E. 557, 1 L. R. A. (X. B.) 
 985; this rule does not apply outside of the 
 performance of its duties as a common car- 
 rier; Santa Fe\ P. & P. Ry. Co. v. Const 
 Co., 228 U. S. 177, 33 Sup. Ct. 471. 57 L. Ed. 
 
 ; where a gratuitous pass containing a 
 
 condition absolviug the company from neg- 
 ligence is issued by a carrier by sea, there 
 can be no recovery for the carrier's negli- 
 gence; [1900] P. D. 1G1. The reasons for 
 the rule forbidding a contract against its 
 own negligence fail as to persons riding on 
 pass; Griswold v. R. Co., 53 Conn. 371, 4 
 Atl. 201, ."".."> Am. Rep. 115; Rogers v. Steam- 
 boat Co., 86 Me. 261, 29 Atl. 10G9. 25 L. R. 
 A. 491; Quimby v. R. Co., 150 Mass. 365, 23 
 N. E. 205, 5 L. R. A. 84G: Kinney v. R. Co., 
 34 N. J. L. 513, 3 Am. Rep. 2G5; Wells v. R. 
 Co., 24 N. Y. 181; Muldoon v. R. Co.. 7 Was!,. 
 528, 35 Pac. 422, 22 L. R. A. 701. MS Am. St. 
 Rep. 901. The carrier is liable for injuries 
 to the shipper's servants resulting from de- 
 fects in a car furnished by it; Chicago, I. & 
 L. R. Co. v. Pritchard, 168 Ind. 398, 7;» N. 
 E. 508 81 N. E. 78, 9 L. R. A. iX. S.) 857; 
 and likewise if the defects injure the prop- 
 erty received by it. although the car is in 
 fact the property of another corporation; 
 I. add v. U. Co.. 193 Mass. 359, 7'.' X E. 712. 
 9 L. R. A. (N. S.i 874, Ann. Cas. 9S8. 
 
 Railroad companies, steamboats, and all 
 other carriers who allow express companies 
 to carry parcels and packages on their cars, 
 or boats, or other vehicles, are liable as 
 common carriers to the owners of goods for 
 all loss or damage which occurs, without re-
 
 COMMON CARRIERS 
 
 556 
 
 COMMON CARRIERS 
 
 gard to the contract between them and such 
 express carriers; New Jersey Steam Nav. 
 Co. v. Bank, 6 How. (U. S.) 344, 12 L. Ed. 
 465 ; Farmers' & Mechanics' Bank v. Transp. 
 Co., 23 Vt. 186, 56 Am. Rep. 68; American 
 Exp. Co. v. Ogles, 36 Tex. Civ. App. 407, 81 
 S. W. 1023. 
 
 A carrier is not liable for the loss of a 
 mail package through the negligence of its 
 employe, being in that employment not a 
 carrier, but a public agent of the United 
 States: Bankers' Mutual Casualty Co. v. Ry. 
 Co., 117 Fed. 434, 54 C. C. A. 608, 65 L. R. 
 A. 397. But where the carrier transports 
 cars of an express company under a spe- 
 cial contract, a clause exempting the carrier 
 from liability is valid; Baltimore & O. S. 
 Ry. Co. v. Voigt, 176 U. S. 498, 20 Sup. Ct. 
 385, 44 L. Ed. 560. 
 
 Railways, steamboats, packets, and other 
 common carriers of ' passengers, although 
 not liable for injuries to their passengers 
 without their fault, are nevertheless respon- 
 sible for the baggage of such passengers in- 
 trusted to their care as common carriers of 
 goods; and such responsibility continues for 
 a reasonable time after the goods have been 
 placed in the warehouse or depot of the 
 carrier, at the place of destination, for de- 
 livery to the passenger or his order; 2 B. & 
 P. 416; Powell v. Myers, 26 Wend. (N. Y.) 
 591 ; Bennett v. Dutton, 10 N. H. 4S1 ; Dill v. 
 R. Co., 7 Rich. (S. C.) 158, 62 Am. Dec. 407. 
 See Galveston, H. & S. A. Ry. Co. v. Smith, 
 81 Tex. 479, 17 S. W. 133. 
 
 Where baggage was stored with a carrier 
 as warehouseman after its arrival by rail- 
 road, the burden is on the owner to show 
 negligence; Yazoo & M. V. R. Co. v. Hughes, 
 94 Miss. 242, 47 South. 662, 22 L. R. A. (N. 
 S.) 975. If a carrier maintains a check room 
 and limits its liability for articles checked, 
 such limitation is good, but the carrier is 
 liable as an insurer for the limited amount; 
 Terry v. Southern Ry., SI S. C. 279, 62 S. E. 
 249, 18 L, R. A. (N. S.) 295. 
 
 See Baggage. 
 
 The responsibility of common carriers be- 
 gins upon the delivery of the goods for im- 
 mediate transportation. A delivery at the 
 usual place of receiving freight, or to the 
 employes of the company in the usual course 
 of business, is sufficient; Merriam v. R. Co., 
 20 Conn. 354, 52 Am. Dec. 344; 2 M. & S. 
 172; Gregory v. Ry. Co., 46 Mo. App. 574; 
 Railway Co. v. Neel, 56 Ark. 279, 19 S. W. 
 963; Rogers v. Wheeler, 52 N. Y. 262; Illinois 
 Cent. R. Co. v. Smyser & Co., 38 111. 354, 87 
 Am. Dec. 301 ; but where carriers have a 
 warehouse at which they receive goods for 
 transportation, and goods are delivered there 
 not to be forwarded until some event occur, 
 the carriers are, in the meantime, only re- 
 sponsible as depositaries; Moses v. R. R., 24 
 N. H. 71, 55 Am. Dec. 222 ; and where goods 
 are received as wharfingers, or warehousers, 
 or forwarders, and not as carriers, liability 
 
 will be Incurred only for ordinary negli- 
 gence ; Piatt v. Hibbard, 7 Cow. (N. Y.) 497. 
 A carrier may make reasonable regulations 
 governing the manner and place in which it 
 will receive articles which it professes to 
 carry, and these regulations may be changed 
 on reasonable notice to the public; Robinson 
 v. R. Co., 129 Fed. 753, 64 C. C. A. 281 ; proof 
 of delivery of property to the carrier in 
 sound condition and of its re-delivery at 
 the end of the route in damaged condition 
 is sufficient to sustain a recovery; Duncan 
 v. R. Co., 17 N, D. 610, 118 N. W. 826, 19 
 L. R. A. (N. S.) 952. Where goods are in- 
 jured because of insecure packing or boxing, 
 the carrier is not liable; Goodman v. O. R. 
 & N. Co., 22 Or. 14, 28 Pac. 894; but where 
 it does not appear that they were received 
 as in bad order, or that they were so in fact, 
 the presumption is that they were in good 
 order ; Henry v. Banking Co., 89 Ga. 815, 15 
 S. E. 757. Where there was less than a 
 carload of goods, and there was no agree- 
 ment on the part of the carrier to transport 
 them in a ventilated car, although it was 
 requested by the carrier that they should be 
 so shipped, it was held that the carrier was 
 not liable for the loss of perishable goods; 
 Davenport Co. v. R. Co., 173 Pa. 398, 34 
 Atl. 59. 
 
 The responsibility of the carrier termi- 
 nates after the arrival of the goods at their 
 destination and a reasonable time has elaps- 
 ed for the owner to receive them in business 
 hours. After that, the carrier may put them 
 in a warehouse, and is only responsible for 
 ordinary care ; Thomas v. R. Corp., 10 Mete. 
 (Mass.) 472, 43 Am. Dec. 444; Smith v. Rail- 
 road, 27 N. H. 86, 59 Am. Dec. 364; 2 M. & 
 S. 172. Where goods are delivered to the 
 consignee in violation of instructions not to 
 deliver without a bill of lading, the com- 
 pany is liable to the shipper for loss there- 
 by sustained; Foggan v. R. Co., 61 Hun 623, 
 16 N. Y. Supp. 25. The delivery of goods 
 from a ship must be according to the cus- 
 tom of the port, and such delivery will dis- 
 charge the carrier of his responsibility ; Con- 
 stable v. S. S. Co., 154 U. S. 51, 14 Sup. Ct. 
 1062, 38 L. Ed. 903. 
 
 Notice to the consignee of the arrival of 
 goods and a reasonable time to remove them 
 are necessary to reduce the liability of the 
 carrier to that of a warehouseman; Royth- 
 ress v. R. Co., 148 N. C. 391, 62 S. E. 515, 
 18 L. R. A. (N. S.) 427; and where goods are 
 stolen after notice to the consignee, but be- 
 fore a reasonable time for removal has 
 elapsed, the carrier is liable; Burr v. Ex- 
 press Co., 71 N. J. L. 263, 58 Atl. 609. The 
 test of reasonable time for the removal of 
 goods which changes a carrier to a ware- 
 houseman is whether the consignee exercised 
 reasonable diligence to ascertain when the 
 goods had arrived or would arrive, and to 
 remove them after he had received, or, with 
 reasonable care, would have received notice;
 
 COMMON CARRIERS 
 
 557 
 
 COMMON CARRIERS 
 
 Lewis v. R. Co., 135 Ky. 361, 122 S. W. 184, 
 25 L. R. A. (N. S.) 938, 21 Ann. Cas. 527. 
 Three and a half months was held more 
 than reasonable time; Norfolk & W. E. Co. v. 
 Mill. Co., 1013 Va. 184, 63 S. E. 415; eij 
 days after notice was mailed; Southern R. 
 Co. v. Machine Co., 165 Ala. 436, - - >i South. 
 779. Where ba{ ! left over night, the 
 
 carrier's liability, if any, for its loss, was 
 that of a warehouseman; Campbell v. R. Co., 
 78 Neb. 479, 111 N. W. 126. One and a half 
 business days is sufficient to terminate the 
 liability of the carrier as such; United 
 Fruit Co. v. Transportation Co., 101 Mil. 
 567, 65 \tl. 415, 8 L. R. A. (N. S.) 240, 10 
 Ann. Cas. 137; a carrier whose liability has 
 become that of a warehouseman is liable 
 as a bailee for hire unless it notifies the 
 owner that it will no longer hold the prop- 
 erty as warehouseman; Branson & Boat- 
 wright v. R. Co., 76 S. C. 9, 56 S. E. 538, 9 
 L. R. A. iN. S.) 577. 
 
 On unconditional consignments the carrier 
 must treat the con as the absolute 
 
 owner until he receives notice to the con- 
 trary; Pratt v. Express Co., 13 Idaho, 373, 
 90 Pac. 341, 10 L. R. A. (N. S.) 499, 121 Am. 
 St. Rep. 26S: where the consignee takes the 
 goods from the carrier's possession without 
 its knowledge or consent, the carrier is not 
 justified for its failure to comply with an 
 order of the shipper diverting the consign- 
 ment; Atchison, T. & S. F. R. Co. v. Schriv- 
 er, 72 Kan. 550, S4 Pac. 119, 4 L. R. A. (N. 
 S.) 1056; but there is no liability where the 
 carrier permits inspection of the goods at 
 the point of destination in consequence of 
 which the consignor, who was also the con- 
 signee, was prevented from making a sale 
 thereof; Dudley v. Ry. Co., 58 W. Va. 604, 
 52 S. E. 718, 3 L. R. A. (N. S.) 1135, 112 Am. 
 St. Rep. KI27. 
 
 Where goods are so marked as to pass over 
 successive lines of railways, or other trans- 
 portation having no partnership connection 
 in the business of carrying, the successive 
 carriers are only liable for damage or loss 
 occurring during the time the goods are in 
 their possession for transportation; Nashua 
 Lock Co. v. R. Co., 48 N. H. 339, 2 Am. Rep. 
 242; Ogdensburg & L. C. R. Co. v. Pratt, 22 
 Wall. (U. S.) 129, 22 L. Ed. 827; Van Sant- 
 voord v. St. John, 6 Hill (N. Y.) 158; Bood 
 v. R. Co., 22 Conn. 502; Nutting v. R. Co., 1 
 Gray (Mass.) 502; Dunbar v. Ry. Co., 36 S. 
 C. 110, 15 S. E. 357, 31 Am. St. Rep. S60: 
 Church v. R. Co., 1 Old. 41. 29 Pac. 530; 
 Alabama G. S. R. Co. v. Mt. Vernon Co., S4 
 Ala. 175, 4 South. 356; Central R. Co. v. 
 Hasselkus. 91 Ga. 384, 17 S. E. 838, 44 Am. 
 St. Pep. .".7 ; Erie R. Co. v. Wilcox, S4 111. 
 240. 25 Am. Rep. 451; Louisville & N. R. Co. 
 v. Campbell, 7 Heisk. (Tenn.) 257 ; Reard v. 
 R. Co., 79 la. 531, 44 N. W. S03 ; Kyle v. R. 
 Co., 10 Rich. (S. C.) 382, 70 Am. Dee. 231. 
 A carrier may stipulate that it shall be re- 
 leased from liability after goods have left 
 
 its road; Texas & P. R. Co. v. Adan 
 
 72, 14 S. W. 666, L'2 Am. St. <: 
 McCarn v. Ry. Co., S4 Tex. B. W. 
 
 517, 16 L. R. A. 39, 31 Am. St. Rep. 51; 
 Coles v. R. Co., 41 111. Aj .If, C. & S. 
 
 F. R. Co. v 
 
 21 S. W. 355. '!!»" Eng . 
 first carrier, who accepts go 4 for 
 
 a place beyond bis roul :.sihie for 
 
 the entire route, unless be 
 
 ly for the extent of his own route only; 
 8 M. & W. 421; 3 E. L. & Eq. 4] 
 553, 557; 7 H. L. 191. 
 
 Wbere one of the carriers has contr. 
 clearly and unequivocally to deliver goods 
 at their destination, i. e., to carry then: 
 the whole route, his liability will continue 
 until final delivery ; Converse v. Transp. Co., 
 33 Conn. 17S ; Pennsylvania R. Co. v. B 
 68 Pa. 272; Stewart v. R. Co., 3 Fed. 768; 
 Gray v. Jackson. 51 N. H. 9, 12 Am. Rep 1; 
 Ohio & M. P. Co. v. McCarthy. 96 O. S. 258, 
 24 I* I Erie Ry. Co. v. Wi ■ 
 
 239, 25 Am. Rep. 45L See 9 L. P. A 
 imt,.; Newell v. Smith, -19 vt. 255; Jennings 
 v. R. Co., 127 X. V. 438, 28 N. E. 394; but the 
 carrier upon whose line the damage or loss 
 has occurred will also be liable; Laughlin 
 v. Ry. Co., 28 Wis. 209, 9 Am. Pep. -!!'•"•: 
 P.rintnall v. R. Co., .".'J Vt. 665. Where the 
 connecting carrier refuses or unreasonably 
 delays to accept goods, the original carrier 
 while so holding them is a carrier, and the 
 liability as sucb continues until they are 
 warehoused; Bennitt v. Ry. Co., 46 Mo. App. 
 656. 
 
 A contract to transport goods from or to 
 points not on the carrying line, and without 
 the state by which it is Incorporated, is held 
 to be good; Perkins v. R. Co., 47 Me. 
 Am. Dec. 507; Noyes v. p. Co.. 27 vt. 110; 
 Weed v. R. Co.. 19 Wend. (X. Y.) 534; Redf. 
 Railw. Cases 110; Nashua Lock Co. v. R. Co., 
 48 N. H. 339, 2 Am. Rep. 242; contra, Nau- 
 gatuck R. Co. v. Button Co., 24 Conn. 
 
 At common law a carrier, unless there is 
 a special contract is only bound to carry 
 over its own line and deliver to a connect- 
 ing carrier; Gulf, C. & 8. F. 'Ry. Co. v. 
 Slate, 56 Tex. Civ. App. 353, 120 S. W. 102S. 
 If it accepts goods marked for a point be- 
 yond its own line, it is bound to carry 
 and deliver them at that place; Wabash 
 R. Co. v. Thomas, 222 111. 337, 7^ X. B. 777. 
 7 L. R. A. 'X. 8.) 104; and when it has 
 so contracted, all connecting lines are its 
 
 .. for whose default it is respoi 
 Schwartz v. P. Co.. 155 Cal. 712. 103 Pac. 
 196; and if loss occurs througb the negli- 
 gence of the connecting carrier or while in 
 ssession the original carrier is liable; 
 Whitnach v. P. Co.. 82 Neb. 164, lis X. w. 
 67, 19 L. P. A. (N. S.) 1011. 130 Am. St. Rep. 
 692; St T.onis. I. M. & S. Ry. Co. v. Han- 
 dle, 85 Ark. 127, 107 s. w. o\o-, the Inter- 
 change of traffic between two connecting 
 carriers is, in the absence of statutory pro-
 
 COMMON CARRIERS 
 
 558 
 
 COMMON CARRIERS 
 
 vision, a matter of contract, and the courts 
 have no power to compel such interchange 
 of traffic; Central Stock Yards Co. v. R. 
 Co., US Fed. 113, 55 C. C. A. 63, 63 L. R. A. 
 213, affirmed in Central Stock Yards Co. v. 
 R. Co., 192 U. S. 568, 24 Sup. Ct. 339, 48 L. 
 Ed. 565 ; when goods arrive at the end of 
 the original carrier's line, it is the duty of 
 such carrier to deliver them to the succeed- 
 ing carrier or notify it of their arrival ; Texas 
 & P. R. Co. v. Reiss, 183 U. S. 621, 22 Sup. 
 Ct. 252, 46 L. Ed. 358; in the absence of 
 such notice, the original carrier is not re- 
 lieved of his liability as insurer; id. If the 
 original carrier still continues to have con- 
 trol over the goods and has a choice as be- 
 tween connecting carriers, his liability is 
 not terminated until actual delivery of the 
 goods to one of the connecting carriers; 
 Texas & P. R. Co. v. Callender, 1S3 U. S. 
 632, 22 Sup. Ct. 257, 46 L. Ed. 362. The 
 original carrier's duty is not discharged by 
 tendering the goods in an unfit condition 
 whether such condition arises from an in- 
 jury received in its possession or from some 
 unusual cause ; Buston v. R. Co., 116 Fed. 
 235, affirmed in 119 Fed. 808, 56 C. C. A. 
 320; the receipt of perishable goods in- 
 volves the duty of the carrier to provide a 
 refrigerator car and to ice it properly, not 
 only on its own line, but on the connecting 
 carrier's route ; Pennsylvania R. Co. v. Prod- 
 uce Co., Ill Md. 356, 73 Atl. 571. If the 
 connecting carrier negligently detains goods 
 at the connecting point until they are over- 
 taken by a flood, the original carrier is still 
 liable for the loss; Wabash R. Co. v. 
 Sharpe, 76 Neb. 424, 107 N. W. 758, 124 Am. 
 St. Rep. 823 ; a shipper may demand delivery 
 of the goods at the connecting point of two 
 routes by paying the charges of the first 
 carrier; Wente v. R. Co., 79 Neb. 179, 115 N. 
 W. 859, 15 L. R. A. (N. S.) 756. 
 
 The Carmack Amendment to the Inter- 
 state Commerce Act makes a carrier liable 
 for loss beyond its own lines when goods are 
 received for interstate transportation. It is 
 a valid exercise of the commerce power; At- 
 lantic Coast Line R. Co. v. Mills, 219 TJ. S. 
 186, 31 Sup. Ct. 164, 55 L. Ed. 167, 31 L. ,R. 
 A. (N. S.) 7; but it was not decided there 
 whether a carrier can be compelled to ac- 
 cept goods for transportation beyond its 
 own lines. 
 
 The agents of railway and steamboat com- 
 panies, will bind their principals to the full 
 extent of the business intrusted to their 
 control, whether they follow their instruc- 
 tions or not; Philadelphia & R. R. Co. v. 
 Derby, 14 How. (U. S.) 468, 483, 14 L. Ed. 
 502. See Jennings v. R. Co., 127 N. Y. 438, 
 28 N. E. 394. Nor will it excuse the com- 
 pany because the servant or agent acted 
 wilfully in disregard of his instructions ; 
 Weed v. R. Co., 5 Duer (N. Y.) 193; Redf. 
 Railw. § 137, and cases cited in notes. 
 
 A common carrier has power to make 
 
 reasonable regulations governing the man- 
 ner and place in which it will receive goods 
 for transportation and also may change such 
 regulations upon reasonable notice to the 
 public; Robinson v. R. Co., 129 Fed. 753, 64 
 C. C. A. 2S1 ; Piatt v. Lecocq, 158 Fed. 723, 
 S5 C. C. A. 621, 15 L. R. A. (N. S.) 558. It 
 may require reasonable assurance of the 
 character of the goods, and also provide for 
 a reasonable inspection ; Adams Express 
 Co v. Com., 129 Ky. 420, 112 S. W. 577, 18 
 L. R. A. (N. S.) 1182. 
 
 A stipulation in a bill of lading limiting 
 the time within which claims for damage 
 may be presented is valid, provided the time 
 fixed is reasonable; Nashville, C. & St. L. R. 
 R. v. H. M. Long & Son, 163 Ala. 165, 50 
 South. 130; but a stipulation of ten days is 
 not reasonable with regard to injuries to live 
 stock; Wabash R. Co. v. Thomas, 222 111. 
 337, 78 N. E. 777, 7 L. R. A. (N. S.) 104. 
 
 Transportation of animals is common car- 
 riage; Swiney v. Exp. Co., 144 la. 342, 115 
 N. W. 212; and the carrier is bound to care 
 for and feed them in transit; Toledo, W. & 
 W. R. Co. v. Hamilton, 76 111. 393 ; Peck v. 
 R. Co., 138 la. 187, 115 N. W. 1113, 16 L. 
 R. A, (N. S.) 883, 128 Am. St. Rep. 185. A 
 common carrier is absolutely liable for the 
 destruction by fire of animals while in its 
 possession ; Stiles, Gaddie & Stiles v. R. Co.s 
 129 Ky. 175; a carrier of live stock is lia- 
 ble only for the negligence of its servants, 
 but not as insurer ; Cash v. Wabash R. Co., 
 81 Mo. App. 109; Rick v. Wells Fargo Co., 
 39 Utah, 130, 115 Pac. 991 ; he is not liable 
 for loss due to the natural propensities and 
 habits of the stock; Texas Cent. R. Co. v. 
 Hunter & Co., 47 Tex. Civ. App. 190, 104 
 S. W. 1075; Summerlin v. Ry., 56 Fla. 687, 
 47 South. 557, 19 L. R. A. (N. S.) 191, 131 
 Am. St. Rep. 164; where trained bears 
 while in transit injure a person, the carrier 
 is not liable; Molloy v. Starin, 191 N. Y. 
 21, 83 N. E. 588, 16 L. ,R. A. (N. S.) 445, 14 
 Ann. Cas. 57. It is the duty of the carrier 
 to provide a safe pen for unloading stock at 
 a junction point; El Paso & N. E. R. Co. v. 
 Lumbley, 56 Tex. Civ. App. 418, 120 S. W. 
 1050; and they must be kept in a reason- 
 ably safe condition; St. Louis & S. F. R. 
 Co. v. Beets, 75 Kan. 295, 89 Pac. 683, 10 
 L. R. A. (N. S.) 571. If the carrier accept 
 live stock for transportation, he is bound to 
 exercise at least ordinary care ; German v. 
 R. Co., 38 la. 127; Gulf, C. & S. F. Ry. Co. 
 v. Ellison, 70 Tex. 491, 7 S. W. 785; St. 
 Louis, I. M. & S. Ry. Co. v. Jones (Tex.) 29 
 S. W. 695; Duvenick v. R. Co., 57 Mo. App. 
 550; Norfolk & W. R. Co. v. Harman, 91 
 Va. 601, 22 S. E. 490, 44 L. iR. A. 2S9, 50 
 Am. St. Rep. 855; Schaeffer v. R. Co., 168 
 Pa. 209, 31 Atl. 1088, 47 Am. St. Rep. 884 ; 
 Gulf, C. & S. F. Ry. Co. v. Wilm, 9 Tex. Civ. 
 App. 161, 28 S. W. 925 ; Crow v. R. Co., 57 
 Mo App. 135. The burden of proof is on 
 the carrier to show that loss or injury to live
 
 COMMON CARRIERS 
 
 559 
 
 COMMON CARRIERS 
 
 stock resulted from an excepted cause, when 
 shipped under special contract, containing 
 exemptions from liability; Johnson v. R. 
 Co., 69 Miss. 191, 11 South. 104, 30 Am. St. 
 Rep. 534. 
 
 Undei the act of congress of June 29, 1900, 
 common carriers by land and water carry- 
 ing live stock in interstate commerce are 
 forbidden to confine them more than 28 
 consecutive hours "without unloading the 
 same in a humane manner into properly 
 equipped pens for rest, water and Ce 
 for a period of at least 5 consecutive hours, 
 unless prevented by storm or by other ac- 
 cidental or unavoidable causes which can- 
 not be anticipated or avoided by the exer- 
 cise of due diligence and foresight," except 
 that sheep need not be unloaded in the night 
 time, and it is provided that upon the writ- 
 ten request of the owner, etc., of a partic- 
 ular shipment, separate from any bill of 
 lading or other railroad form, the time of 
 continement may be extended to 30 hours. 
 Animals so unloaded shall be properly fed 
 and watered either by the owner or cus- 
 todian, or, in case of his default, by the car- 
 rier at the reasonable expense of the owner 
 or custodian, for which the carrier shall 
 have a lien upon the animals, but the owner 
 or shipper shall have the right to furnish 
 food if he so desires. Section 3 provides 
 that where animals are carried in such way 
 that they have proper food, water, space 
 and opportunity to rest, they need not be 
 unloaded. 
 
 A railroad company which delivers the 
 cars to a connecting carrier within the 28 
 hours is relieved from responsibility; U. S. 
 v. Southern Pac. Co., 157 Fed. 459; Mis- 
 souri, K. & T. Ry. Co. v. U. S., 178 Fed. 15, 
 101 C. C. A. 143. 
 
 That the company had made proper rules 
 requiring employees to comply with the act 
 is no defense; U. S. v. Atlantic Coast Line 
 R. Co., 173 Fed. 704, 98 C. C. A. 110; nor 
 is pressure of business; U. S. v. Union Pac. 
 R. Co., 109 Fed. 05, 94 C. C. A. 433. It is 
 no defense that the violation was by reason 
 of the oversight of a train dispatcher, con- 
 trary to the rules and orders ; Montana 
 Cent. Ry. Co. v. U. S., 104 Fed. 400, 90 C. C. 
 A. 388. 
 
 An accidental or unavoidable cause, as 
 mentioned in the act, which cannot be an- 
 ticipated or avoided, etc., is one which can- 
 not be avoided by that degree of care which 
 the law requires of every one under the cir- 
 cumstances of the particular case; Mis- 
 souri, K. & T. R. Co. v. U. S., 178 Bed. 15, 
 101 C. C. A. 143. 
 
 Failure to provide unloading stations, con- 
 gested traffic, conditions reasonably to be 
 anticipated from past experience, and break- 
 downs resulting from negligent operation 
 and omission to furnish properly equipped 
 and inspected cars, etc., are not accidental 
 or unavoidable causes which will relieve the 
 
 carrier; U. S. v. R. Co., ICG Fed. 100. A 
 company must know how long a connecting 
 line has kept animals without food or water 
 and must learn such fad at its ] til; I', S. 
 v. Stockyards Co., 181 F< 
 tion of compliance with the act of 
 of the written request for the exl 
 the period of confinement is for i 
 Missouri, K. & T. By. Co. v. U. S., 176 
 15, 101 C. C. A. 143. 
 
 The act is not criminal; it does not re- 
 quire proof of malevolent purpose, bin 
 that animals were knowingly and I 
 ally confined beyond the prescribed period; 
 U. S. v. Stockyards Co., 162 Fed. 556. 
 
 There is a separate offense as to each 
 lot of cattle shipped simultaneously as soon 
 as the prescribed time expires as to each 
 lot, regardless of the number of shippers, 
 trains or cars. The aggregate sum of the 
 possible penalties is the amount in dispute 
 for jurisdictional purposes; Baltimore & 
 O. S. W. R. Co. v. U. S., 1^20 U. S. 94, 31 
 Sup. Ct. 3GS, 55 L. Ed. 384. 
 
 The carrier has an insurable interest in 
 the goods, both in regard to tire and marine 
 disasters, measured by the extent of his 
 liability for loss or damage; Chase v. Ins. 
 Co., 12 Barb. (N. Y.) 595. 
 
 The carrier is not bound, unless he so 
 stipulate, to deliver goods by a particular 
 time, or to do more than to deliver in a 
 reasonable time under all the circumstances 
 attending the transportation; 5 M. & G. 553 : 
 Broadwell v. Butler, McLean 296, Fed. 
 Cas. No. 1,910; Wibert v. R. Co., 12 N. Y. 
 245. See 15 W. R. 792; L. R. 9 C. P. 325; 
 McLaren v. R. Co., 23 Wis. 138; Illinois 
 Central R. Co. v. Waters. 41 111. 73; Daw- 
 son v. R. Co., 79 Mo. 290. The Implied 
 agreement of a common carrier is to deliver 
 at the destination within a reasonable time; 
 Chicago & Alton R. Co. v. Kirov, 225 U. S. 
 155, 32 Sup. Ct. 04S, 56 L. Ed. 1033: Mis- 
 souri Pac. Ry. Co. v. Implement Co., 73 
 Kan. 295. S5 Pac. 40S, S7 Pac. 80, 6 L. R. A. 
 (N. S.) 1058, 117 Am. St. Rep. 168, 9 Ann. 
 Cas. 790; interference by strikers ex 
 delay; Sterling v. R. Co., 38 Tex. Civ. App. 
 451, SO S. W. 0"»5; but where the car 
 facilities were overtaxed by an unusual 
 press of business, which it knew of at the 
 time of the shipment, the consequent delay 
 in delivery is not excused; Yazoo ..v- M. V". 
 R. Co. v. Blum Co., 88 Miss ISO, 40 - 
 748, L0 L. B. A. (X. S.) 432; for failure to 
 deliver promptly theatrical scenery and 
 properties, the carrier is liable for the value 
 of the ordinary earnings, less the expenses 
 which the owner has saved by inability to 
 exhibit: Weston v. R. Co.. 100 Mass. 298, 76 
 N. B. 1050, 4 L. R. A. (N. S.) 500. 112 Am. 
 St. Rep. 330, 5 Ann. C 825. a carrier is 
 liable for delay if it knows and does not 
 disclose the probability of it; Thomas v. 11. 
 Co., 63 Fed. L'OO; at least as held by some 
 courts, when the shipper does not know
 
 COMMON CARRIERS 
 
 560 
 
 COMMON CARRIERS 
 
 the circumstances ; Nelson v. R. Co., 2S Mont. 
 297, 72 Pac. 642.' What is a reasonable time 
 is to be decided by the jury; Nettles v. R. 
 Co., 7 Rich. (S. C.) 190, 62 Am. Dec. 409 ; 32 
 L. J. Q. B. 292. 
 
 But if the carrier contract specially to 
 deliver in a prescribed time, he must per- 
 form his contract, or suffer the damages 
 sustained by his failure; Harmony v. Bing- 
 ham, 12 N. Y. 99, 02 Am. Dec. 142; 2 B. & 
 P. 416; Knowles v. Dabney, 105 Mass. 437; 
 Bali v. R. Co., 83 Mo. 574. 
 
 He is liable, upon general principles, 
 where the goods are not delivered through 
 his default, to the extent of their market 
 value at the place of their destination ; 
 Hand v. Baynes, 4 Whart. (Pa.) 204, 33 Am. 
 Dec. 54; Grieff v. Switzer, 11 La. Ann. 324; 
 2 B. & Ad. 932 ; Newell v. Smith, 49 Vt. 255 ; 
 Rankin v. R. R., 55 Mo. 167. See, also, 
 Gilliugham v. Dempsey, 12 S. & R. (Pa.) 
 183; Ringgold v. Haven, 1 Cal. 108. 
 
 Receipt of goods and failure to deliver 
 raises a presumption against the carrier ; 
 Everett v. R. Co., 13S N. C. 68, 50 S. E. 557, 
 1 L. R. A. (N. S.) 985; but the carrier is not 
 liable for failure to deliver a carload of 
 fiuit where municipal authorities forbid the 
 delivery on account of quarantine; Alabama 
 & V. R. Co. v. Tirelli, 93 Miss. 797, 48 South. 
 962, 21 L. R. A. (N. S.) 731, 136 Am. St. Rep. 
 559, 17 Ann. Cas. 879. 
 
 If the goods are only damaged, or not 
 delivered in time, the owner is bound to 
 receive them. He will be entitled to dam- 
 ages, but cannot repudiate the goods and 
 recover from the carrier as for a total loss; 
 Shaw v. R. Co., 5 Rich. (S. C.) 462, 57 Am. 
 Dec. 768; Scovill v. Griffith, 12 N. Y. 509; 
 Hackett v. R. R., 35 N. H. 390; Robertson 
 v. Steamship Co., 60 N. Y. Super. Ct. 132; 
 Chesapeake & O. R. Co. v. Saulsbury, 126 
 Ky. 179, 103 S. W. 254, 12 L. R. A. (N. S.) 
 431. 
 
 Where a carrier is actually deceived as 
 to the contents of a package containing in- 
 toxicating liquors, which it transports into 
 local option territory, it cannot be punished 
 under a statute forbidding such transpor- 
 tation; Adams Exp. Co. v. Com., 129 Ky. 
 420, 112 S. W. 577, 18 L. R. A. (N. S.) 1182 ; 
 and to protect itself, it may require rea- 
 sonable assurance that the goods are not 
 contraband, and provide for a reasonable 
 inspection when practicable; id. 
 
 If a shipper is guilty of fraud in misrep- 
 resenting the nature or value of the article, 
 he forfeits his right to indemnity, because 
 he has attempted to deprive the carrier 
 of the right to be compensated in propor- 
 tion to the value of the article and the risk 
 assumed, and has tended to lessen the vigi- 
 lance of the carrier ; Hart v. R. Co., 112 U. 
 S. 331, 5 Sup. Ct. 151, 28 L. Ed. 717; in such 
 case he cannot hold the carrier for more 
 than the apparent value, or the value stated 
 by him; id.; Georgia S. & F. Ry. Co. v. 
 
 Johnson, King & Co., 121 Ga. 231, 48 S. E. 
 sol; Graves v. R. Co., 137 Mass. 33, 50 Am. 
 Rep. 2S2 ; Rowan v. Wells, Fargo\ &, Co., 80 
 App. Div. 31, 80 N. Y. Supp. 226. This rule 
 has been applied to one shipping a valuable 
 horse as a horse of ordinary value at a rate 
 applicable to the latter; Duntley v. R. Co., 
 66 N. H. 263, 20 Atl. 327, 9 L. R. A. 449, 49 
 Am. St. Rep. 610 ; one concealing valuable 
 memorandum books in clothing shipped as 
 "worn clothing;" Savannah, F. & W. Ry. 
 Co. v. Collins, 77 Ga. 376, 3 S. E. 416, 4 
 Am. St. Rep. 87; one delivering a package 
 of the value of $234,000, and representing its 
 value as $1,000, paying for the latter valua- 
 tion; U. S. Exp. Co. v. Koerner, 65 Minn. 
 540, 6S N. W. 181, 33 L. R. A. 600; to one 
 shipping jewelry in a package as household 
 goods; Charleston & S. Ry. Co. v. Moore, 
 80 Ga. 522, 5 S. E. 769. It has been held 
 that in such case the carrier is relieved 
 from all liability; Shackt v. R. Co., 911 
 Tenn. 658, 30 S. W. 742, 28 L. R. A. 176; 
 Southern Exp. Co. v. Wood, 98 Ga. 268, 25 
 S. E. 436. On the other hand, it has been 
 held that, where fraud was practiced in 
 order to get a lower rate, the carrier would 
 not be bound by the rate given, but that 
 in such case the carrier's liability was not 
 lessened; Lucas v. Ry. Co.. 112 la. 594, 84 
 N. W. 673 ; Rice v. R, Co., 3 Mo. App. 27. A 
 mere failure of the shipper, unasked, to 
 state the value, is not, as a matter of law, a 
 fraud upon the carrier which defeats all 
 right of recovery; New York, C. & H. R. R. 
 Co. v. Fraloff, 100 U. S. 24, 25 L. Ed. 531; 
 but other cases have imposed upon the 
 shipper the duty of disclosing to the car- 
 rier that the article is valuable ; White v. 
 Cable Co., 25 App. D. C. 364; Gilman v. 
 Telegraph Co., 48 Misc. 372, 95 N. Y. Supp. 
 564. Where the value, when not stated, 
 was, by the company's regulation, placed 
 at $50, this limit was enforced; Magnin v. 
 Dinsmore, 70 N. Y. 410, 26 Am. Rep. 608. 
 See a full note in 23 L. R. A. (N. S.) 745. 
 But in Pennsylvania contracts limiting lia- 
 bility for the full value are held void; 
 Wright v. Exp. Co., 230 Pa. 635, 79 Atl. 760, 
 where the value was greatly in excess of the 
 $50 limit and the bill of lading was stamped 
 "value asked and not given." 
 
 Where an express company fixes its charg- 
 es in proportion to the value of the property 
 shipped and the shipper has knowledge of 
 same, in case of loss, the shipper is limited 
 to the value stated, and this is not a viola- 
 tion of the act of June 29, 1906, which states 
 that a carrier in an interstate shipment 
 cannot limit his liability; Adams Express 
 Co. v. Croninger, 226 XL S. 491, 33 Sup. Ct. 
 148, 57 L. Ed. 314. 
 
 For the authorities in the civil law on the 
 subject of common carriers, the reader is re- 
 ferred to Dig. 4. 9. 1 to 7; Pothier, Pond. 
 lib. 4, t. 9; Domat, liv. 1, t. 16, ss. 1 and 2; 
 Pardessus, art. 537 to 555; Code Civil, art.
 
 COMMON CARRIERS 
 
 561 
 
 COMMON CARRIERS 
 
 1782, 1786, 1052; Moreau & Carlton, Las Par- 
 tidus, c. 5, t. 8, L 26; Erskine, Inst b. 2, t. 
 1, § 28; 1 Bell, Comm. 465; Abbott, Shipp. 
 part 3, c. 3, § 3, note (1); 1 Voet, Ad Pand. 
 lib. 4, t. 9; Merlin, Rep. Voiture, YoiturUr; 
 Goirand, Code of Commerce (18S0) 163. 
 
 See Common Carriers of Passengers; 
 Baggage; Bailments; Lien; Express Com- 
 panies; Passenger; Ticket; Sleeping Car; 
 Interstate Commerce Commission. 
 
 COMMON CARRIERS OF PASSENGERS. 
 
 Common carriers of passengers are such as 
 undertake for bire to carry all persons in- 
 differently who may apply for passage, so 
 long as tbere is room, and there is no legal 
 excuse for refusing. Thomps. Carriers of 
 Passengers 26, n. § 1 ; Vinton v. R. Co., 11 
 Allen (Mass.) 304, 87 Am. Dec. 714; Hollis- 
 ter v. Nowlen, 19 Wend. (N. Y.) 239, 32 Am. 
 Dec. 455; Bennett v. Dutton, 10 N. H. 486; 
 Galena & C. U. R. Co. v. Yarwood, 15 111. 
 472 ; Jencks v. Coleman, 2 Sumn. 221, Fed. 
 Cas. No. 7,258 ; 3 B. & B. 54. 
 
 A company owning parlor and sleeping 
 cars, who enter into no contract of carriage 
 with the passenger, but only give him su- 
 perior accommodations, was formerly held 
 not a common carrier; Pullman Palace 
 Car Co. v. Smith, 73 111. 360, 24 Am. Rep. 
 258; Duval v. Palace Car Co., 62 Fed. 265, 
 10 C. C. A. 331, 33 L. R. A. 715. See Parlor 
 Cars; Sleeping Cars. A street railway 
 company is a common carrier of passengers 
 and liable as such on common-law prin- 
 ciples; Spellman v. Transit Co., 36 Neb. 890, 
 55 N. W. 270, 20 L. R. A. 316, 38 Am. St 
 Rep. 753. See Street Railways. 
 
 Common earners may excuse themselves 
 when there is an unexpected press of travel 
 and all their means are exhausted. But 
 where it appears that there is usually a 
 large crowd at a particular station for a 
 particular train, it is evidence of negligence 
 on the part of the carrier in failing to an- 
 ticipate the large crowd and take precau- 
 tious to protect intending passengers from 
 injury therefrom; Kuhlen v. Ry. Co., 193 
 Mass. 341, 79 N. E. 815, 7 L. R. A. (N. S.) 
 729. 118 Am. St. Rep. 516. And see Bennett 
 v. Dutton, 10 N. H. 486; and they may for 
 good cause exclude a passenger: thus, they 
 are not required to carry drunken and dis- 
 orderly persons, or one affected with a con- 
 tagious disease, or those who come on board 
 to assault passengers, commit a crime, flee 
 from justice, gamble, or interfere with the 
 proper regulations of the carrier, and dis- 
 turb the comfort of the passengers; Thurs- 
 ton v. R. Co., 4 Dill. 321, Fed. ('as. No. 
 14,019; Pearson v. Duane, 4 Wall. (U. S.) 
 605, 18 L. Ed. 447; O'Brien v. R. Co.. 15 
 Gray (Mass.) 20, 77 Am. Dec. 347; Pitts- 
 burgh, C. & St L. Ry. Co. v. Vandyne, 57 
 Ind. 576, 26 Am. Rep. 6S ; Pittsburgh & C. 
 R. Co. v. Pillow, 76 Pa. 510, IS Am. Rep. 
 424; Railway Co. v. Valleley, 32 Ohio St. 
 Bouv.— 36 
 
 345, 30 Am. Rep. 601 ; or one whose pur- 
 pose is to injure the carrier's busi' 
 Jencks v. Coleman, 2 Sumn. 221, Fed. 
 No. 7,258; Barney v. Martin, 11 Blatchf. 
 L'.::;, Fed. Cas. No. 1,030; but if a carrier re- 
 ceives a passenger, knowing that a good 
 cause exists for his exclusion, he cannot 
 afterwards eject him for such can 
 son v. Duane, 4 Wall. (U. S.) 605, IS I. 
 •117; Tarbell v. R. Co., 34 Cal. 616. Whore 
 one rightfully on a train as a passenger is 
 put off, it is of itself a good cause of action 
 against the company irrespective of any 
 
 ;;1 injury that may have resulted; 
 New York, L. E. & W. B. Co. v. Winter, 143 
 U. S. 60, 12 Sup. Ct. 350, 36 L. Ed. 71. It 
 is not liable for injuries resulting from 
 one trying to steal a ride on a freight train ; 
 Plan/, v. R. Co., 157 Mass. 377; 32 N. E. 
 356, IT L. R. A. 
 
 Passenger-carriers are not held respon- 
 sible as insurers of the safety of their pas- 
 sengers, as common carriers of goods are. 
 But they are bound to the very highest de- 
 gree of care and watchfulness in regard to 
 all their appliances for the conduct of their 
 business : so that, as far as human fore- 
 sight can secure the safety of passengers. 
 there is an unquestionable right to demand 
 it of all who enter upon the busine 
 
 iger-carriers ; Spellman v. Rapid 
 Transit Co., 36 Neb. 890, 55 N. W. 270, 20 
 L. R. A. 316, 3S Am. St. Rep. 753: Texas 
 Central R. Co. v. Stuart 1 Tex. Civ. Api>. 
 642, 20 S. W. 962; Chicago. P. & St. L. R. 
 Co. v. Lewis, 145 111. 67, 33 N. E. 960 : L. R. 
 9 Q. B. 122: 2 Q. B. D. 377; White v. R 
 Co., 136 Mass. 321; Pennsylvania Co. v. 
 Roy, 102 U. S. 451. 26 L. Ed. 141; Phila- 
 delphia & R. R. Co. v. Anderson, 94 Pa. 351, 
 39 Am. Rep. 7S7. They are liable only for 
 injuries resulting from their negligence; 
 [1901] A. C. 496; and such negligence must 
 be the proximate cause of the injury; Be- 
 vard v. L. Traction Co., 74 Neb. 802, in.', v. 
 W. 635, 3 L. R. A. (N. S.) 318. A carrier is 
 not permitted to contract against liability 
 for negligence, but a private carrier may, 
 by special contract; Cleveland, C, C. & .St. 
 L. R. Co. v. Henry, 170 lnd. 94, 83 N. E. 
 710. Where a conductor negligently assists 
 a passenger from the car to the station plat- 
 form, the company is responsible for inju- 
 ries resulting therefrom: llanlon v. I: 
 187 N. Y. 73, 7:» X. E. 846, 10 L. R. A. I 
 411, 110 Am. St. Rep. 591, 10 Ann. 
 and even carrying a passenger at reduced 
 fare does not entitle the carrier to stipulate 
 for an exemption from liability for negli- 
 
 . Pittsburgh. C. O. & St. L. iR. Co. v. 
 Higgs, 165 lnd. 694, T<', X. B. 299, 4 L. R A. 
 <X. S.) 1081. 
 
 A state may by statute limit the right of 
 recovery for injuries to certain classes of 
 persons; Martin v. R. Co.. 203 U. S. 2S4. 
 27 Sup. Ct. 100, 51 L. Ed. 1S4. 
 
 It is not responsible to persons board-
 
 COMMON CARRIERS 
 
 562 
 
 COMMON CARRIERS 
 
 ing trains to assist passengers; Hill v. R. 
 Co., 124 Ga. 243, 52 S. E. 651, 3 L. R. A. (N. 
 S.) 432; to purchase fruit from one not in 
 the employ of the railroad company ; Peter- 
 son v. R. Co., 143 N. C. 260, 55 S. E. 61S, S 
 L. R. A. (N. S.) 1240, US Am. St. Rep. 799 ; 
 or to speak to a passenger thereon ; Bullock 
 v. R. Co. (Tex.) 55 S. W. 184 ; and it owes 
 no duty to them. 
 
 Where an injury occurs on cars chartered 
 by an association or individual, the carrier 
 is liable to a passenger thereon as in other 
 cases ; Clerc v. R. & S. S. Co., 107 La. 370, 
 31 South. 886, 90 Am. St. Rep. 319; Estes 
 v. R. Co., 110 Mo. App. 725, 85 S. W. 627; 
 Collins v. R. Co., 15 Tex. Civ. App. 169, 39 
 S. W. 643; and so where such a passenger 
 has been ejected from such a train; Kirk- 
 land v. R. Co., 79 S. C. 273, 60 S. E. 668, 
 128 Am. St. Rep. 848. Where a train is 
 signalled at a section house, which is not a 
 regular stopping-place, and a person boards 
 it without any one's knowledge, and in do- 
 ing so is injured, the carrier is not liable; 
 Georgia Pac. R. Co. v. Robinson, 68 Miss. 
 643, 10 South. 60. 
 
 The passenger must be ready and willing 
 to pay such fare as is required by the es- 
 tablished regulations of the carriers in con- 
 formity with law. But an actual tender of 
 fare or passage-money does not seem requi- 
 site in order to maintain an action for an 
 absolute refusal to carry, and much less is 
 it necessary in an action for any injury sus- 
 tained; 6 C. B. 775 ; 2 Kent 598. The rule 
 of law is the same in regard to paying fare 
 in advance that it is as to freight, except 
 that, the usage in the former case being to 
 take pay in advance, a passenger is expect- 
 ed to have procured his ticket before he had 
 taken passage. 
 
 It is the carrier's duty to maintain safe 
 stations and approaches, whether on their 
 own premises or on another's and main- 
 tained by them; Delaware, L. & W. R. Co. 
 v. Trautwein, 52 N. J. L. 169, 19 Atl. 178, 
 7 L. R. A. 435, 19 Am. St. Rep. 442 ; .Tobin 
 v. R. Co., 59 Me. 183, 8 Am. Rep. 415; or 
 even where maintained by another; Cotant 
 v. R. Co., 125 la. 46, 99 N. W. 115, 69 L. 
 R. A. 982 ; Gulf, C. & S. F. R. Co. v. Glenk, 
 9 Tex. Civ. App. 599, 606, 30 S. W. 278; 
 Schlessinger v. R. Co., 49 Misc. 504, 98 N. 
 Y. Supp. 840 ; Beard v. R. Co., 48 Vt. 101 ; 
 but in such case it is suggested that the li- 
 ability is rather for not guarding the car- 
 rier's premises so that the defective ap- 
 proach would not be used; 20 Harv. L. Rev. 
 67. If there are two approaches and one is 
 faulty, the carrier is liable to one using it; 
 19 C. B. N. S. 183. In making platforms 
 safe the care required is not the highest de- 
 gree of care, but ordinary care ; Pittsburgh, 
 C, C. & St. Louis R. Co. v. Harris, 38 Ind. 
 App. 77, 77 N. E. 1051; Chicago & N. W. 
 Ry. Co. v. Scates, 90 111. 586; but they have 
 been held to all that human sagacity and 
 
 foresight can do and liable for slightest neg- 
 ligence; Zimmer v. R. Co., 36 App. Div. 265, 
 55 N. Y. Supp. 308; Baltimore & O. R. Co. 
 v. Wightman's Adm'r, 29 Gratt. (Va.) 431, 26 
 Am. Rep. 384. 
 
 A carrier is liable for severe illness of a 
 passenger caused by negligent failure to 
 heat its cars properly ; Atlantic Coast Line 
 R. Co. v. Powell, 127 Ga. 805, 56 S. E. 1006, 
 9 L. R. A. (N. S.) 769, 9 Ann. Cas. 553. 
 
 It is the duty of a steamship company 
 running a night boat to supply berths to un- 
 objectionable passengers in the order of ap- 
 plication; Patterson v. S. S. Co., 140 N. C. 
 412, 53 S. E. 224. And they must absolutely 
 protect passengers against the misconduct 
 of their own servants engaged in executing 
 the contract; New Jersey S. B. Co. v. 
 Brockett, 121 U. S. 637, 7 Sup. Ct. 1039, 30 
 L. Ed. 1049; Haver v. R. Co., 62 N. J. L. 
 282, 41 Atl. 916, 43 L. R. A. 84, 72 Am. St 
 Rep. 647; but if an employe is free from 
 liability for injury done a passenger, the 
 carrier is also ; New Orleans & N. E. R. 
 Co. v. Jopes, 142 U. S. 18, 12 Sup. Ct. 109, 
 35 L. Ed. 919. Where one enters a ticket- 
 office to buy a ticket he is entitled to the 
 protection of a passenger, although the 
 agent refuse to sell him a ticket ; Norfolk 
 & W. R. Co. v. Galliher, 89 Va. 639, 16 S. E. 
 935. 
 
 The degree of speed allowable upon a rail- 
 way depends upon the condition of the road; 
 5 Q. B. 747. 
 
 Passenger-carriers are not responsible 
 where the injury resulted directly from the 
 negligence of the passenger; Baltimore & 
 P. R. Co. v. Jones, 95 U. S. 439, 24 L. Ed. 506 ; 
 Pennsylvania R. Co. v. Aspell, 23 Pa. 147, 
 62 Am. Dec. 323 ; 3 B. & Aid. 304. 
 
 It is the duty of a street railway com- 
 pany to stop when a passenger is about to 
 alight and not to start again until he has 
 done so ; Washington & G. R. Co. v. Harmon, 
 147 U. S. 571, 13 Sup. Ct. 557, 37 L. Ed. 284; 
 but the act of alighting from a moving car 
 is not negligence per se, regardless of at- 
 tending circumstances ; Duncan v. .Ry. Co., 
 48 Mo. App. 659; McCaslin v. Ry. Co., 93 
 Mich. 553, 53 N. W. 724 ; Ober v. R. Co., 44 
 La. Ann. 1059, 11 South. 818, 32 Am. St. 
 Rep. 366; Louisville, N. A. & C. R. Co. v. 
 Johnson, 44 111. App. 56; but see Brown v. 
 Barnes, 151 Pa. 562, 25 Atl. 144. A carrier 
 is not liable, because it fails to stop a train 
 for an intending passenger, for injury to his 
 health, where he later procured a carriage 
 to drive him across country on a stormy 
 night to avoid delay in waiting for the next 
 train; International & G. N. R. Co. v. Ad- 
 dison, 100 Tex. 241, 97 S. W. 1037, 8 L. R. 
 A. (N. S.) 880. 
 
 Carriers of passengers are bound to carry 
 for the whole route for which they stipulate, 
 and according to their public advertisements 
 and the general usage and custom of their 
 business; Weed v. R. Co., 19 Wend. (N. Y.)
 
 COMMON CARRIERS 
 
 563 
 
 COMMON CARRIERS 
 
 534; 8 E. L. & Eq. 362. The carrier's lia- 
 bility extends over the entire route for 
 which he lias contracted to carry, though 
 the destination is reached over conne 
 lines; McElroy v. R. Co., 4 Cush. (Mass.) 400, 
 50 Am. Dec. 794; McLean v. Burbank, 11 
 Minn. 277 (Gil. 180); Candee v. R. Co., 21 
 Wis. 582, 94 Am. Dec. 5bU But the carrier 
 is also liable on whose line the loss or injury 
 is suffered; Hood v. R. Co., 22 Conn 
 Sprague v. Smith, 29 Vt 421; BriggS v. 
 Vanderbilt, 19 Barb. (N. Y.) 2S2. 
 
 Where a passenger holds a coupon ticket 
 (not jointly issued) over connecting lines 
 and is delayed by the negligence of a pre- 
 ceding carrier, a sure ((ding road is not 
 bound to carry him on such ticket if it has 
 expired; Brian v. OR. Co., 40 Mont. 109, 105 
 Pac. 4S9, 20 Ann. Cas. 311; New York-. L. 
 E. & W. R. Co. v. Bennett, 50 Fed. 49G, 1 
 C. C. A. 544; otherwise where it was a 
 round trip ticket and the Initial and last 
 carrier were the same and the delay was by 
 an intermediate carrier, the ticket beiug 
 refused on the return by the last carrier ; 
 Stevens v. R. Co., 45 Tex. Civ. App. 190, 100 
 S. W. 807. Where the ticket is jointly is- 
 sued, the passenger is entitled to complete 
 his journey after the time has expired ; 
 Gulf, C. & S. F. R. Co. v. Looney, 85 Tex. 
 158, 19 S. W. 1039, 16 L. R. A. 471, 34 Am. 
 St. Rep. 7S7. If all the lines are operated 
 by the company selling the ticket, and the 
 passenger commences his journey within the 
 period, he may complete it after the ticket, 
 by its terms has expired ; Brian v. R. Co., 
 
 40 Mont. 109, 105 Pac. 4S9, 20 Ann. Cas. 311. 
 Where a passenger is carried some dis- 
 tance beyond his destination, and ejected 
 against his protest, being compelled to walk 
 back to the station, the company is liable 
 for breach of contract; Evansville & R. R. 
 Co. v. Kyte, 6 Ind. App. 52, 32 N. E. 1134 ; 
 and so where he was injured in walking 
 back on a dark night; Kentucky & I. Bridge 
 & R. R. Co. v. Buckler, 125 Ky. 24, 100 S. 
 W. 328, 8 L. R. A. (N. S.) 555, 12S Am. St. 
 Rep. 234. 
 
 Passenger-carriers may establish reason- 
 able regulations in regard to the conduct 
 of passengers, and discriminate between 
 those who conform to their rules in regard 
 to obtaining tickets, and those who do not, 
 — requiring more fare of the latter ; Chi- 
 cago, B. & Q. R. Co. v. Parks, 18 111. 460, 68 
 Am. Dec. 562; Hilliard v. Goold, 34 N. H. 
 230, 66 Am. Dec. 765 ; Stephen v. Smith, 29 
 Vt 160; Com. v. Power, 7 Mete. (Mass.) 596, 
 
 41 Am. Dec. 465; State v. Overton, 24 N. .1. 
 L. 435, 61 Am. Dec. 671 ; 29 E. L. & Eq. 143 ; 
 Crocker v. R. Co., 24 Conn. 249; Lake Erie 
 & W. R. Co. v. Mays, 4 Ind. App. 413, 30 N. E. 
 1106 ; but a passenger is not bound to com- 
 ply with the rules of a company unless they 
 are reasonable ; Central Railroad & Bank- 
 ing Co. v. Strickland, 90 Ga. 562, 16 S. E. 
 352. Passengers may he required to go 
 
 ;h in the same train or forfeit the re- 
 mainder of their tickets; Cheney v. B. 1:. 
 Co., 11 Mete. (Mass.; 121, 45 Am. 
 Oil Creek & A. R. By. Co. v. 
 231; State v. Overton, 24 N. J. . 
 Am. Dec. ''-71; Cleveland, C. vv C. B. Co. v. 
 Bartram, 11 Ohio St. 462; Gulf, i 
 By. Co. v. Henry, 84 Tex. 
 16 L. R. A. 31S. The words -good th] 
 only" upon a ticket will not limit the un- 
 dertaking of the company to any particular 
 day or any specific train. — they relate to u 
 journey and not to a time; and the I 
 is good if used at any time within six years 
 from its date; Pier v. Finch, 24 Barb. (N. 
 Y.) 514; Drew v. R. Co., 51 Cal. 425. See 
 Lundy v. R. Co., 66 Cal. L91, 4 Pac. 119 
 Am. Rep. 100: Auerbach v. R. Co., 89 X. Y. 
 281, 42 Am. Rep. 290; Gulf, C. & - 
 Co. v. Looney, 85 Tex. 158, 19 S. YV. 1039, 
 16 L. R. A. 471, 34 Am. St Rep. 787; but 
 a ticket "good for this day only," or for 
 "only two days after date," is of no valid- 
 ity after that date though not use 
 & L. R. Co. v. Proctor, 1 Allen (W 
 79 Am. Dec. 729; Gale v. R. Co., 7 Hun 
 (N. Y.) 070. Where a passenger buys a 
 ticket which is silent as to stop-over priv- 
 
 . he may rely on the statements of the 
 ticket agent on that subject; New York, I.. 
 E. & W. R. Co. v. Winter, 143 U. S. 60. 12 
 Sup. Ct. 356, 36 L. Ed. 71. In determining 
 what is a reasonable regulation the con- 
 venience of both the public and the com- 
 pany must be considered: Faber v. Ry. Co., 
 62 Minn. 433, 64 N. W. 91 S, 36 L. R. A 
 where the schedule was disarranged and 
 no notice given that the car would not pro- 
 ceed to its destination. It was held that 
 the passenger could not be required to trans- 
 fer to a car ahead; Burrow v. Ry. & Light 
 Co., 12 Va. L. Reg. 763; contra, 37 
 Sup. Ct. 523 ; but where a transfer is compel- 
 led there is a remedy for failure to provide 
 seats in the new car ; Louisville, N. O. & 
 T. Ry. Co. v. Patterson, 69 Miss. 421, 13 
 South. 697, 22 L. R. A. 2."9: see Camden & 
 A. R. R. Co. v. Hoosey, 99 Pa. 492. 497, 44 
 Am. Rep. 120. An ordinance imposing a 
 penalty for unnecessary changes is reason- 
 able; City of New York v. Ry. Co., 43 Misc. 
 29, S6 N. Y. Supp. 673. It is the duty of the 
 carrier to give information necessary for 
 the journey; Dwindle v. R. Co., 120 N. Y. 
 117, 24 N. E. 319, 8 L. R. A. 224, 17 Am. St. 
 Rep. 611; as of circumstances likely to 
 cause delay; Hasseltine v. Railway. 7." S. 
 C. 141. 55 S. E. 111', 6 L. R. A. (N. S.) 1009 ; 
 and passengers have the right to rely on in- 
 formation given; Pennsylvania Co. v. Hoag- 
 land, 7S Ind. 203. The obligation is treated 
 as an incident of the business ; see 20 llarv. 
 L. Rev. 232 ; but in England false informa- 
 tion is dealt with as if deceit; 5 El. & Bl. 
 860. 
 
 Railway passengers, when required by the 
 regulations of the company to surrender
 
 COMMON CARRIERS 
 
 564 
 
 COMMON HIGHWAY 
 
 cheir tickets in exchange for the conduc- 
 tor's checks, are liable to be expelled from 
 the cars for a refusal to comply with such 
 regulation, or to pay fare again; Northern 
 R. Co. v. Page, 22 Barb. (N. Y.) 130 ; or for 
 refusal to exhibit a ticket at the request of 
 the conductor in compliance with the stand- 
 ing regulations of the company; Hibbard 
 v. R. Co., 15 N. Y. 455. See Ticket. 
 
 Railway companies may exclude mer- 
 chandise from their passenger trains. It is 
 not the duty of a company to search every 
 parcel carried by a passenger, and it is not 
 guilty for the death of a fellow passenger 
 resulting from an explosion of fire works 
 carried by another; [1901] A. C. 39G. The 
 company is not bound to carry a passenger 
 daily whose trunk or trunks contain mer- 
 chandise, money, or other things known as 
 "express matter" ; 5 Am. Law Reg. 364. 
 
 COMMON CONDIDIT. See Condidit, 
 Common. 
 
 COMMON COUNCIL. See Council. 
 
 COMMON COUNTS. Certain general 
 counts, not founded on any special contract, 
 which are introduced in a declaration, for 
 the purpose of preventing a defeat of a just 
 right by an accidental variance in the evi- 
 dence. 
 
 These are, in an action of assumpsit, counts 
 founded on implied promises to pay money in con- 
 sideration of a precedent debt, and have been va- 
 riously classified. Those usually comprehended un- 
 der the term are: — 
 
 1. Indebitatus assumpsit, which alleges a debt 
 founded upon one of the several causes of action 
 from which the law implies a, promise to pay, and 
 this is made the consideration for the promise to 
 pay a sum of money equivalent to such indebted- 
 ness. This covers two distinct classes: — 
 
 a. Those termed money counts, because they re- 
 lated exclusively to money transactions as the basis 
 of the debt alleged: 
 
 (1) Money paid for defendant's use. 
 
 (2) Money had and deceived by defendant for 
 
 the plaintiff's use. 
 
 (3) Money lent and advanced to defendant. 
 
 (4) Interest. 
 
 (5) Account stated. 
 
 b. Any of the usual states of fact upon which the 
 debt may be founded, the most common being: 
 
 (1) Use and occupation. 
 
 (2) Board and lodging. 
 
 (3) Goods sold and delivered. 
 
 (4) Goods bargained and sold. 
 
 (5) Work, labor, and services. 
 
 (6) Work, labor, and materials. 
 
 2. Quantum meruit. 
 
 3. Quantum valebant. 
 
 See Assumpsit. 
 
 COMMON FINE. A small sum of money 
 paid to the lords by the residents in certain 
 leets. Fleta; Wharton. 
 
 COMMON FISHERY. A fishery to which 
 all persons have a right. A common fishery 
 is different from a common of fishery, which 
 is the right to fish in another's pond, pool, 
 or river. See Fishery. 
 
 COMMON HIGHWAY. By this term is 
 meant a road to be used by the community 
 
 at large for any purpose of transit or traffic 
 Hammond, N. P. 239. See Highway. 
 
 COMMON INFORMER. One who, without 
 being specially required by law or by virtue 
 of his office, gives information of crimes, of- 
 fences, or misdemeanors wbich have been 
 committed, in order to prosecute the offend- 
 er ; a prosecutor. 
 
 COMMON INTENT. The natural sense 
 given to words. 
 
 It is the rule that when words are used 
 which will bear a natural sense and an arti- 
 ficial one, or one to be made out by argument 
 and inference, the natural sense shall pre- 
 vail. It is simply a rule of construction, and 
 not of addition. Common intent cannot add 
 to a sentence words which have been omit- 
 ted; 2 H. Blackst. 530. In pleading, certain- 
 ty is required ; but certainty to a common 
 intent is sufficient — that is, what upon a 
 reasonable construction may be called cer- 
 tain, without recurring to possible facts ; Co. 
 Litt 203 a; Dougl. 163. See Certainty. 
 
 COMMON LAW. That system of law or 
 form of the science of jurisprudence which 
 has prevailed in England and in the United 
 States of America, in contradistinction to 
 other great systems, such as the Roman or 
 civil law. 
 
 Those principles, usages, and rules of ac- 
 tion applicable to the government and secur- 
 ity of persons and of property, which do not 
 rest for their authority upon any express 
 and positive declaration of the will of the 
 legislature. 1 Kent 492. 
 
 The body of rules and remedies adminis- 
 tered by courts of law, technically so called, 
 in contradistinction to those of equity and 
 to the canon law. 
 
 The law of any country, to denote that 
 which is common to the whole country, in 
 contradistinction to laws and customs of lo- 
 cal application. 
 
 The most prominent characteristic which marks 
 this contrast, and perhaps the source of the distinc- 
 tion, lies in the fact that under the common law 
 neither the stiff rule of a long antiquity, on the one 
 hand, nor, on the other, the sudden changes of a 
 present arbitrary power, are allowed ascendency, 
 but, under the sanction of a constitutional govern- 
 ment, each of these is set off against the other; so 
 that the will of the people, as it is gathered both 
 from long established custom and from the expres- 
 sion of the legislative power, gradually forms a sys- 
 tem — just, because it is the deliberate will of a free 
 people — stable, because it is the growth of centuries 
 — progressive, because it is amenable to the con- 
 stant revision of the people. A full idea of the 
 genius of the common law cannot be gathered with- 
 out a survey of the philosophy of English and 
 American history. Some of the elements will, how- 
 ever, appear in considering the various narrower 
 senses in which the phrase "common law" is used. 
 
 Perhaps the most important of these narrower 
 senses is that which it has when used in contradis- 
 tinction to statute law, to designate unwritten as 
 distinguished from written law. It is that law 
 which derives its force and authority from the uni- 
 versal consent and immemorial practice of the 
 people. It has never received the sanction of the 
 legislature by an express act, which is the criterion 
 by which it is distinguished from the statute law.
 
 COMMON LAW 
 
 505 
 
 COMMON LAW 
 
 When it is spoken of as the lex non scripta, It is 
 meant that it is law not written by authority of 
 law. The statutes are the expression of law in a 
 written form, which form is essential to the statute. 
 The decision of a court which establishes or de- 
 clares a rule of law may be reduced to writing and 
 published in the reports ; but this report is not the 
 law; it is but evidence of the law; it is but a writ- 
 ten account of one application of a legal principle, 
 which principle, in the theory of the common law, is 
 still unwritten. However artificial this distinction 
 may appear, it is nevertheless of the utmost im- 
 portance, and bears continually the most wholesome 
 results. It is only by the legislative power that law 
 can be bound by phraseology and by forms of ex- 
 pression. The common law eludes such bondage; 
 its principles are not limited nor hampered by the 
 mere forms in which they may have been exp 
 and the reported adjudications declaring such prin- 
 ciples are but the instances in which they have been 
 applied. The principles themselves are still unwrit- 
 ten, and ready, with all the adaptability of truth, to 
 meet every new and unexpected case. Hence it is 
 said that the rules of the common law are flexible ; 
 Bell v. State, 1 Swan (Tenn.) 4^; Rensselaer Glass 
 Factory v. Reid, 5 Cow. (N. Y.) 587, 628, 632. 
 
 It naturally results from the inflexible form of 
 the statute or written law, which has no self-con- 
 tained power of adaptation to cases not foreseen by 
 legislators, that every statute of importance be- 
 comes, in course of time, supplemented, explained, 
 enlarged, or limited by a series of adjudications 
 upon it, so that at last it may appear to be merely 
 the foundation of a larger superstructure of unwrit- 
 ten law. It naturally follows, too, from the less def- 
 inite and precise forms in which the doctrine of the 
 unwritten law stands, and from the proper hesita- 
 tion of courts to modify recognized doctrines in 
 new exigencies, that the legislative power frequent- 
 ly intervenes to declare, to qualify, or to abrogate 
 the doctrines of the common law. Thus, the writ- 
 ten and the unwritten law, the statutes of the pres- 
 ent and the traditions of the past, interlace and 
 react upon each other. Historical evidence sup- 
 ports the view which these facts suggest, that many 
 of the doctrines of the common law are but the 
 common-law form of antique statutes, long since 
 overgrown and imbedded in judicial decisions. 
 While this process is doubtless continually going on 
 in some degree, the contrary process is also con- 
 tinually going on; and to a very considerable ex- 
 tent, particularly in the United States, the doc- 
 trines of the common law are being reduced to the 
 statutory form, with such modifications, of course, 
 as the legislature will choose to make. This sub- 
 ject is more fully considered under the title Code, 
 which see. 
 
 In a still narrower sense, the expression "com- 
 mon law" is used to distinguish the body of rules 
 and of remedies administered by courts of law 
 technically so called in contradistinction to those of 
 equity administered by courts of chancery, and to 
 the canon law, administered by the ecclesiastical 
 courts. 
 
 In England the phrase is more commonly used at 
 the present day in the second of the three senses 
 above mentioned. 
 
 In this country the common law of Eng- 
 land has been adopted as the basis of our 
 jurisprudence in all the states except Louisi- 
 ana. Many of the most valued principles 
 of the common law have been embodied in 
 the constitution of the United States and the 
 constitutions of the several states; and in 
 many of the states the common law and the 
 statutes of England in force in the colony at 
 the time of our independence are by the state 
 constitution declared to be the law of the 
 state until repealed. There is an express 
 constitutional adoption of it in Delaware, 
 New York, Michigan, Wisconsin, and West 
 
 Virginia, and an implied adoption of it in the 
 constitutions of Kentucky and West Virginia. 
 It has been adopted by statute in Arizona, 
 Arkansas, California, Colorado, Florida, 
 Idaho, Illinois, Indiana, Kansas, Missouri, 
 Montana, Nebraska, Nevada, New Mexico, 
 North Carolina, Pennsylvania, South Caro- 
 lina, Texas, Vermont, Virginia, Wash; 
 and Wyoming. It was extended to Alabama 
 by the ordinance of 17ST and the recognition 
 of the latter in the state constitution; Pol- 
 lard v. Ha -an, 3 How. (U. S.) 212, 11 1. 
 565; Barlow v. Lambert, 28 Ala. 7<>7, 65 Am. 
 Dec, 374. It is recognized by judicial deci- 
 sion without any statute in Iowa; Sti 
 Twogood, 7 la. 252 ; Mississippi; Heming- 
 way v. Scales. 4'J .Miss. 1, 97 Am. In- 
 2 Am. Rep. 586. See 1 Bish. Criui. Law § 
 15, note 4, § 45, where the rules adopted by 
 the several states in this respect are stated. 
 Hence, where a question in the courts of one 
 state turns upon the laws of a sifter state, 
 if no proof of such laws is offered, it is, in 
 general, presumed that the common law as it 
 existed at the time of the separation of this 
 country from England prevails in such state; 
 Abell v. Douglass, 4 Denio (N. V.. 
 Schurman v. Marley, 29 Ind. 458; Kennot 
 v. A.v.r, 11 Mich. 181; Mohr v. Miesen. 47 
 Minn. 122S, 49 N. W. 802; contra, in Penn- 
 sylvania, in cases where that state has 
 changed from the common law ; the pre- 
 sumption being that the law of the sister 
 state has made the same change, it' there is 
 no proof to the contrary. The term common 
 law as thus used may be deemed to include 
 the doctrine of equity ; Williams v. Williams, 
 S N. Y. 535; but the term is also used Ln the 
 amendments to the constitution of the United 
 States (art. 7) in contradistinction to equity, 
 in the provision that "In suits at common 
 law where the value in controversy shall ex- 
 ceed twenty dollars, the right of trial by jury 
 shall be preserved." The "common law'* here 
 mentioned is the common law of England, 
 and not of any particular state; U. S. v. 
 Wonson, 1 Gall. 20, Eed. Cas. No. 16,750; 
 Bains v. The Catherine, 1 Baldw. 554, Fed. 
 Cas. No. 756; Robinson v. Campbell, '' Wheat 
 (U. S.) 223, 4 L. Ed. 372; Parsons v. Bed- 
 ford, 3 Pet. (TL S.) 446, 7 L. Ed. 732. See 
 Patterson v. Wiun, 5 Pet (U. S.) 241, 8 L. 
 Ed. 108; Com. v. Leach, l Mass. 61 ; Coburn 
 v. Harvey. IS Wis. 147. The term is used in 
 distinction to equity, admiralty, and 
 maritime law; Parsons v. Bedford, ."» Pet 
 (U. S.) 446, 7 L. Ed. 732 : Bains v. The 
 Catherine, 1 Baldw. 554, Eed. Cas. No. 756. 
 
 The common law of England is not in all 
 respects to be taken as that of the United 
 States or of the several states: its general 
 principles are adopted only so far as they 
 are applicable to our situation, ami the prin- 
 ciples upon which courts discriminate be- 
 what is to be taken and what is to 
 be left have been much the same whether 
 the common law was adopted by constitu-
 
 COMMON LAW 
 
 566 
 
 COMMON LAW 
 
 tiou, statute, or decision. While no hard 
 and fast rule can be laid down which will 
 at once differentiate every case, a very dis- 
 criminating effort was made by Chancellor 
 Bates, in Clawson v. Primrose, 4 Del. Ch. 
 643, to formulate the result of the decisions 
 and ascertain the criterion which they had 
 in most instances applied to the subject. 
 In this discussion, which was character- 
 ized by Professor Washburn as having great 
 value, the conclusion reached is thus stated: 
 
 "It cannot be overlooked that, notwithstanding 
 the broad language of the constitution ('the com- 
 mon law of England as well as so much of the stat- 
 ute law as has been heretofore adopted in practice, 
 . . . such parts only excepted as are repugnant 
 to the rights and privileges contained in this con- 
 stitution and the declaration of rights') there were 
 many parts of the common law of England, as it 
 stood prior to 1776, which never have in fact been 
 regarded by our courts as in force in this country ; 
 yet it is to be observed that the courts have not 
 herein acted arbitrarily in adopting some parts of 
 the common law and rejecting other parts, accord- 
 ing to their views of the policy of particular rules 
 or doctrine. On the contrary, those parts of the 
 common law of England which have not been here 
 practically administered by the courts will be found 
 on examination to reduce themselves to two classes, 
 resting upon grounds which render them proper to 
 be treated as implied exceptions to the constitu- 
 tional provision in addition to the expressed excep- 
 tion of such parts of the common law as were re- 
 pugnant to the rights and privileges contained in 
 the constitution. One of these classes of excep- 
 tions may be briefly disposed of. It embraces those 
 parts of the rules and practice of the common law 
 which had become superseded by long settled us- 
 ages of trade, or business, or habits of dealing 
 among our people, such as could not be unsettled or 
 disturbed without serious inconvenience or injury. 
 In such cases, upon the necessary maxim that com- 
 munis error facit jus, the courts accepted these 
 departures as practical modifications of the com- 
 mon law. . . . 
 
 "The other class of rules which, though parts of 
 the common law of England, have never been ad- 
 ministered by the courts under the constitution of 
 1776, embraces those parts of the common law 
 which in the terms usually employed were, at the 
 period of our independence, inapplicable to the ex- 
 isting circumstances and institutions of our people. 
 
 "There is less difficulty in applying the limitation 
 practically than in attempting to define it. I un- 
 derstand it as excluding those parts of the common 
 law of England which were applicable to subjects 
 connected with political institutions and usages pe- 
 culiar to the mother country, and having no exist- 
 ence in the colonies, such for example as officers, 
 dignities, advowsons, titles, etc. ; also, as exclud- 
 ing some of the more artificial rules of the common 
 law, springing out of the complicated system of 
 police, revenue, and trade, among a great commer- 
 cial people and not therefore applicable to the more 
 simple transactions of the colonies or of the states 
 in their early history; also it may be understood as 
 excluding or modifying many rules of what is 
 known as the common law of practice, and possibly 
 of evidence, which the greater simplicity in our 
 system for the administration of justice, would 
 render unnecessary or inconvenient. 
 
 "But, on the other hand, our legislative and judi- 
 cial history shows conclusively that what may be 
 termed the common law of property was received 
 as an entire system, subject to alterations by the 
 legislature only. Rights of property and of person 
 are fundamental rights necessary to be defined and 
 protected in every civil society. The common law, 
 as a system framed to this very end, could not be 
 deemed Inapplicable in the colonies for want of a 
 subject matter, or as being needless or superfluous, 
 or unacceptable, which is the true sense of the 
 
 limitation in question. Certain it is, as a matter of 
 history, that our ancestors did not so treat it." 
 
 Among the other cases in which the subject 
 is treated are Van Ness v. Pacard, 2 Pet. (U. 
 S.) 144, 7 L. Ed. 374; Town of Pawlet v. 
 Clark, 9 Cra. (U. S.) 333, 3 L. Ed. 735; Lyle 
 v. Richards, 9 S. & R. (Pa.) 330; Rensselaer 
 Glass Factory v. Reid, 5 Cow. (N. Y.) 628; 
 Doe v. Winn, 5 Pet. (U. S.) 241, 8 L. Ed. 
 108; Wheaton v. Peters, 8 Pet. (U. S.) 658, 
 S L. Ed. 1055; U. S. v. Hudson, 7 Cra. (U. 
 S.) 32, 3 L. Ed. 259; U. S. v. Coolidge, 1 
 Wheat. (U. S.) 415, 4 L. Ed. 124; Robinson 
 v. Campbell, 3 Wheat. (U. S.) 223, 4 L. Ed. 
 372; U. S. v. Ravara, 2 Dall. (U. S.) 297, 1 
 L. Ed. 388; U. S. v. Worrall, 2 Dall. (U. S.) 
 384, 1 L. Ed. 426; Com. v. Leach, 1 Mass. 61 ; 
 Boynton v. Rees, 9 Pick. (Mass.) 532; Win- 
 throp v. Dockendorff, 3 Greenl. (Me.) 162; 
 Colley v. Merrill, 6 Greenl. (Me.) 55; Sib- 
 ley v. Williams, 3 Gill. & J. (Md.) 62; U. S. 
 v. Coolidge, 1 Gall. (U. S.) 489, Fed. Cas. No. 
 14,857; State v. Danforth, 3 Conn. 114; John- 
 son v. Terry, 34 Conn. 260 ; Dawson v. Coff- 
 man, 28 Ind. 220 ; Powell v. Sims, 5 W. Va. 
 1, 13 Am. Rep. 629; Lansing v. Stone, 37 
 Barb. (N. Y.) 16; Barlow v. Lambert, 28 
 Ala. 704, 65 Am. Dec. 374. See Sampson's 
 Discourse before the N. Y. Hist. Soc. 
 
 The adoption of the common law has been 
 held to include the construction of common- 
 law terms; Carpenter v. State, 4 How. 
 (Miss.) 163, 34 Am. Dec. 116; Buckner v. 
 Bank, 5 Ark. 536, 41 Am. Dec. 105 ; statutes ; 
 Com. v. Churchill, 2 Mete. (Mass.) US; and 
 constitutional provisions; McGinnis v. State, 
 9 Humph. (Tenn.) 43, 49 Am. Dec. 697; 
 curtesy ; McCorry v. King's Heirs, 3 Humph. 
 (Tenn.) 267, 39 Am. Dec. 165; dower; Davis 
 v. O'Ferrall, 4 G. Greene (la.) 168; husband 
 and wife ; Van Maren v. Johnson, 15 Cal. 
 308; champerty; Key v. Vattier, 1 Ohio 
 132; real property, title, estate, and tenures; 
 Hemingway v. Scales, 42 Miss. 1, 97 Am. Dec. 
 425, 2 Am. Rep. 586; Harkness v. Sears, 26 
 Ala. 493, 62 Am. Dec. 742; Powell v. Bran- 
 don, 24 Miss. 343; sureties; Vidal v. Girard, 
 2 How. (U. S.) 127, 11 L. Ed. 205; chari- 
 table uses ; Burr v. Smith, 7 Vt. 241, 29 Am. 
 Dec. 154; Williams v. Williams, 8 N. Y. 541; 
 Witman v. Lex, 17 S. & R. (Pa.) 88, 17 Am. 
 Dec. 644 ; decedent's estates ; Cutting v. 
 Cutting, 86 N. Y. 529; remedies and prac- 
 tice; Straffin's Adm'r v. Newell, T. U. P. 
 Charlt. (Ga.) 172, 4 Am. Dec. 705; U. S. v. 
 Wonson, 1 Gall. 20, Fed. Cas. No. 16,750; 
 Hightower v. Fitzpatrick's Heirs, 42 Ala. 
 597 ; Grande v. Foy, 1 Hemp. 105, Fed. Cas. 
 No. 5,682a; Fisher v. Cockerell, 5 Pet. (U. 
 S.) 253, 8 L. Ed. 114; Wiley v. Ewing, 47 
 Ala. 424. 
 
 In actions in the federal courts in a terri- 
 tory, the common law is the rule of decision, 
 in the absence of statutes or proof of laws or 
 customs prevailing in the territory ; Pyeatt 
 v. Powell, 51 Fed. 551, 2 C. C. A. 367. The 
 common-law rule of decision in a federal
 
 COMMON LAW 
 
 5G7 
 
 COMMON LAW 
 
 court is that of the state in which it is sit- 
 ting ; Lorraan v. Clarke, 2 McLean 5G8, Fed. 
 Cas. No. 8,516. 
 
 Illustrations of what it has been held not 
 to include are the rule respecting convey- 
 ance by parol; Liudsley's Lessee v. Coats, 1 
 Ohio 245 ; but see Lavelle v. Strobel, 89 I1L 
 370; shifting inheritances; Drake v. Rogers, 
 13 Ohio St. 21; Cox v. Matthews, 17 Ind. 
 3G7; Bates v. Brown, 5 Wall. (U. S.) 710, 
 18 L. Ed. 535; mere possession of land as 
 against miners ; McClintock v. r.ryden, 5 Cal. 
 100, 03 Am. Dec. 87; newspaper communica- 
 tions respecting a judge considered as a con- 
 tempt in England; Stuart v. People, 3 Scam. 
 (111.) 404; cutting timber; Dawson v. Coff- 
 man, 28 Ind. 220; easement by use in party- 
 wall; Hieatt v. Morris, 10 Ohio St. 523, 78 
 Am. Dec. 280; estates in joint tenancy ; Ser- 
 geant v. Steinber^er, 2 Ohio 305, 15 Am. 
 Dec. 553; rule as to partial reversal of a 
 judgment against an infant and another; 
 Wilford v. Grant, Kirby (Conn.) 117; cy 
 pr6s doctrine ; Grimes' Ex'rs v. Harmon, 35 
 Ind. 198, 9 Am. Rep. 090; riparian rights to 
 soil under water; Reno Smelting, Milling & 
 Reduction Works v. Stevenson, 20 Nev. 269, 
 21 Pac. 317, 4 L. R. A. GO, 19 Am. St. Rep. 
 364; overruling Vansickle v. Haines, 7 Nev. 
 249; to running water; Martin v. Bigelow, 2 
 Aik. (Vt.) 187, 16 Am. Dec. 696; the defini- 
 tion of a navigable river; Fulmer v. Wil- 
 liams, 122 Pa. 191, 15 Atl. 720. 1 L. R. A. 603, 
 9 Am. St. Rep. 88 ; the law of waters as ap- 
 plied to large lakes, or to a river which is a 
 national boundary; Cbamplain & St. L. R. 
 Co. v. Valentine, 19 Barb. (N. Y.) 484. 
 
 In criminal law the common law is gen- 
 erally in force in the states to some extent, 
 and while it is in some states held that no 
 crime is punishable unless by statute, there 
 are in many states general statutes resorting 
 to the common law for all crimes not other- 
 wise enumerated, and for criminal matters 
 generally. When there is no statutory defini- 
 tion of a crime named, the common-law defi- 
 nition is generally resorted to ; Com. v. Web- 
 ster, 5 Cush. (Mass.) 295, 52 Am. Dec. 711; 
 as also are its rules of evidence in criminal 
 cases, and of practice as well as principle in 
 the absence of statutes to the contrary; 
 Hyde v. State, 16 Tex. 415, 07 Am. Dec. 630; 
 and in Louisiana, although not recognized in 
 civil matters, the common law in criminal 
 cases is expressly adopted; State v. McCoy, 8 
 Rob. 545, 41 Am. Dec. 301. It has been held 
 to prevail in the District of Columbia as to 
 theft; State v. Cuminings, 33 Conn. 260, S9 
 Am. Dec. 208; ns to conspiracy in .Maryland ; 
 State v. Buchanan, 5 Ilarr. & J. 358, :> Am. 
 Dec. 534; kidnapping in New Hampshire; 
 State v. Rollins, 8 N. H. 550; homicide with- 
 out intent to kill in Maine; State v. Smith, 
 32 Me. 369, 54 Am. Dec. 578; and in Tennes- 
 see; Jacob v. State, 3 Humph. 483; capacity 
 to commit rape in New York ; People v. 
 Randolph, 2 Park. Cr. Rep. 174; but not in 
 
 Ohio; Williams v. State, 14 Ohio 222, 45 Am. 
 Dec. 536. 
 
 There is no common law of the T' 
 States, as a distinct sovereignty ; Swift v. 
 l;. Co., 64 Fed. 59; Gatton v. Ry. Co. (la 
 X. W. 589; Wheaton v. Pet (U. 
 
 s.i 658, 8 L. Ed. 1055; People v. Folsom, 5 
 Cal. 374; Forepaugh v. R. Co., 128 Pa. '_* 1 7, 
 is Atl. 503, 5 L \i. A. 508, :■• . 
 672; and therefore there are no < 
 law offences against the U. S. ; Q. 
 
 n. 7 Cra. ( 0. B.) 32, 3 L. Ed. 259; In 
 re Greene, 52 Fed. 104; U. S. v. Lev 
 Fed. 449; U. S. v. Britton, 108 U. S. 199, 2 
 Sup. Ct. 525, 27 L. Ed 703; U. S. v. Eaton, 
 144 U. S. 677, 12 Sup. Ct 764, 30 L Ed. 591 
 There is a rare and valuable pamphlet on 
 this subject by St. G pbell, 
 
 of the Philadelphia Bar, which contains a 
 full discussion of this question. For earlier 
 cases before the question was fully settled, 
 9ee U. S. v. Worrall, 2 Dall. (U. S.) 384, Fed. 
 Cas. No. 16,766; U. S. v. Coolidge, 1 Gall. 4S8, 
 Fed. Cas. No. 14,857; id., 1 Wheat (U. S.) 
 415, 4 L Ed. 124. But the common law is 
 resorted to by federal courts for definition of 
 common-law crimes not defined by statute ; 
 CT. S. v. Armstrong, 2 Curt. C. C. 446, 1 ed. 
 Cas. No. 14,407 ; U. S. v. Coppersmith, 4 Fed. 
 198. See Comiieucial Law. 
 
 The admiralty law is distinct from the 
 common law and the line of demarcation is 
 to be sought in the English decisions before 
 the Revolution and those of the state courts 
 prior to the constitution. See La Amistad de 
 Rues, 5 Wheat (U. S.) 391, 5 L. Ed. 115; 
 Bains v. The James and Catherine, Baldw. 
 558, Fed. Cas. No. 756; Sawyer v. Steamboat 
 Co., 46 Me. 400, 74 Am. Dec. 4U3. And as to 
 the adoption of the English ecclesiastical 
 law, see Le Barron v. Le Barron, 35 Vt 365; 
 Crump v. Morgan, 38 N. C. 91, 40 Am. Dec. 
 447; Perry v. Perry, 2 Paige Ch. (N. Y. ) 
 501; Brinkley v. Brinkley, 50 N. Y. 184, 10 
 Am. Rep. 400. New York has adopted only 
 so much of the common law as is applicable 
 to the circumstances of the colonies and con- 
 formable to her Institutions; Catting v. Cut- 
 ting, SO N. Y. 52i'; Shayne v. Publishing Co., 
 L68 N. Y. 70, 61 N. E. 115. 55 L. R, A. 777. 85 
 Am. St. Rep. 654 In adopting the common 
 law in New' York, principles Inconsonant 
 with the circumstances or repugnant to the 
 spirit, of American institutions were not 
 adopted; Barnes v. Terminal Co., 193 N. Y. 
 55 X. B. L093, 127 Am. St. Rep. 962. 
 
 It does not become a part of the law of a 
 state of its own vigor, but is adopted by con- 
 stitutional provision, statute or & 
 
 rn Union Tel. (\>. v. Milling Co., 218 
 U. S. 406, 31 sup. Ct 59, 54 L Ed L088, 36 
 L. K. A. (X. S.) 220, 21 Ann. Cas. 815. As 
 to Indiana, see Sopher v. State. 169 Ind. 177. 
 81 N. E. 913, 14 L. R. A. (N. S.) 172, 14 
 Ann. Cas 27. 
 
 "There is no body of federal common law 
 separate and distinct from the common law
 
 COMMON LAW 
 
 568 
 
 COMMON LAW 
 
 existing in the several states in the sense 
 that there is a body of statute law enacted by 
 congress separate and distinct from the body 
 of statute law enacted by the several states. 
 But it is an entirely different thing to hold 
 that there is no common law in force general- 
 ly throughout the United States, and that 
 tbe countless multitude of interstate com- 
 mercial transactions are subject to no rules 
 and burdened by no restrictions other than 
 those expressed in the statutes of congress ;" 
 Western Union Tel. Co. v. Pub. Co., 181 U. S. 
 92, 21 Sup. Ct. 501, 45 L. Ed. 765, following 
 Smith v. Alabama, 124 U. S. 465, 8 Sup. Ct. 
 564, 31 L Ed. 308 ; Wheaton v. Peters, 8 Pet. 
 (U. S.) 591, 8 L. Ed. 1055 ; New York C. R. 
 Co. v. Lockwood, 17 Wall. (U. S.) 357, 21 L. 
 Ed. 627. There is an elaborate opinion in 
 Murray v. Ry. Co., 62 Fed. 24, on this sub- 
 ject. See also 36 Amer. L. Rev. 498; 18 
 Harv. L. Rev. 134. 
 
 Sir F. Pollock expresses the opinion that 
 there is a common law of the United States 
 as distinguished from that of a state. 3 
 Encycl. of Laws of England 142. 
 
 In general, too, the statutes of England 
 are not understood to be included, except 
 so far as they have been recognized by 
 colonial legislation, but the course pursued 
 has been rather to re-enact such English 
 statutes as were deemed applicable to our 
 case. Those passed since the settlement of 
 the particular colony are not in force, un- 
 less specially accepted by it, or expressly 
 made to apply to it; if these were suitable 
 to the condition of the colony they were 
 usually accepted ; Baker v. Mattocks, Quincy 
 (Mass.) 72; Cathcart y. Robinson, 5 Pet. 
 (U. S.) 280, 8 L. Ed. 120; Morris v. Vander- 
 en, 1 Dall. (U. S.) 64, 1 L. Ed. 38. 
 
 There cannot be said to be a settled rule 
 as to what date is to be fixed as determining 
 what British statutes were received as part 
 of the common law. Many states fix July 
 4, 1776. This is provided by constitution 
 in Florida, Maryland and Rhode Island, and 
 by statute in Kentucky; in other states 4th 
 Jac. I. is the period named after which Eng- 
 lish statutes are not included, as Arkansas, 
 Colorado, Illinois, Indiana, Missouri, Vir- 
 ginia, Wyoming (but the last four except 
 stats. 43 Eliz. c. 6, § 2; 13 Eliz. a 8 and 37 
 Hen. VIII. c. 9) ; McCool v. Smith, 1 Black 
 (U. S.) 459, 17 L Ed. 218; Scott v. Lunt, 7 
 Pet. (U. S.) 596, 8 L. Ed. 797 ; Baker's Adm'r 
 v. Crandall, 78 Mo. 587, 47 Am. Rep. 126; 
 Herr v. Johnson, 11 Colo. 393, 18 Pac. 342. 
 As to English statutes in force in Pennsyl- 
 vania, see Report of the Judges in Roberts, 
 Eng. Stat.; Boehm v. Engle, 1 Dall. (U. S.) 
 15, 1 L. Ed. 17; Biddle v. Shippen, 1 Dall. 
 (U. S.) 19, 1 L. Ed. 19; Respublica v. Mesca, 
 1 Dall. (U. S.) 73, 1 L. Ed. 42; Shewel v. 
 Fell, 3 Yeates (Pa.) 17; id,, 4 Yeates (Pa.) 
 47; Johnson v. Hessel, 134 Pa. 315, 19 Atl. 
 700. Generally, it may be stated that the 
 statutes adopted prior to the Revolution, and 
 
 held applicable under rules stated, are ac- 
 cepted as part of the common law ; Hamil- 
 ton v. Kneeland, 1 Nev. 40; Sackett v. Sac- 
 kett, 8 Pick. (Mass.) 309; Coburn v. Harvey, 
 IS Wis. 148. But see Matthews v. Ansley, 31 
 Ala. 20; Bogardus v. Trinity Church, 4 
 Paige (N. Y.) 178; Crawford v. Cbapman, 
 17 Ohio 452 ; In re Lamphere, 61' Mich. 105, 
 27 N. W. 8S2. Upon the subject of English 
 statutes as part of the common law see an 
 able note on the whole subject of this title 
 in 22 L. R. A. 501. By reason of the modi- 
 fications arising out of our different condi- 
 tion, and those established by American stat- 
 utes and by the course of American adjudica- 
 tion, the common law of America differs 
 widely in many details from the common law 
 of England ; but the fact that this difference 
 has not been introduced by violent changes, 
 but has grown up from the native vigor of 
 the system, identifies the whole as one juris- 
 prudence. 
 
 See works of Franklin, by Sparks, vol. 4, 
 p. 271, as to the adoption of the common 
 law in America ; see also Cooley, Const. 
 Lim. (2d ed.) 34, n. 35; Pierce v. Swan 
 Point Cemetery, 10 R. I. 227, 14 Am. Rep. 
 667; 2 Wait, Actions and Defences, 276; 
 Reinsch, English Common Law in the Early 
 American Colonies, 1 Sel. Essays in Anglo- 
 Amer. L. H. 367; Sioussat, Extension of 
 English Statutes to the Plantations, id. 416; 
 Jenks, Teutonic Law, id. 49; Ed. Combina- 
 tions 216 ; James C. Carter, The Law, etc. ; 
 O. W. Holmes, The Common Law; Gray, 
 Sources of the Law; 23 Q. B. D. 611, where 
 Bowen, L. J., speaks of it as "an arsenal of 
 sound common sense." 
 
 A person has no property, no vested inter- 
 est, in any rule of common law. That is 
 only one of the forms of municipal law, and 
 is no more sacred than any other. Rights 
 of property which have been created by the 
 common law cannot be taken away without 
 due process, but the law itself, as a rule of 
 conduct, may be changed at will ... of 
 the legislature, unless prevented by consti- 
 tutional limitations. Indeed, the great office 
 of statutes is to remedy defects in the com- 
 mon law as they are developed, and to adapt 
 it to the changes of time and circumstances ; 
 Munn v. Illinois, 94 U. S. 113, 134, 24 L. Ed. 
 77 ; quoted and approved. Second Employers' 
 Liability Cases, 223 U. S. 1, 50, 32 Sup. Ct 
 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44. 
 See Law Merchant. 
 
 COMMON LAW MARRIAGE. See Mar- 
 riage. 
 
 COMMON LAW PROCEDURE ACTS. See 
 
 Procedure Acts. 
 
 COMMON NUISANCE. One which affects 
 the public in general, and not merely some 
 particular person. 1 Hawkins, PL Cr. 197 
 
 See Nuisance.
 
 COMMON PLEAS 
 
 569 
 
 COMMON. rS IN 
 
 COMMON PLEAS. The name of a court 
 having jurisdiction generally of civil actions. 
 
 Such pleas or actions are brought by pri- 
 vate persons against private persons, or by 
 the government, when the cause of action is 
 of a civil nature. In England, whence we 
 derived this phrase, common pleas are so 
 called to distinguish them from pleas of the 
 crown. 
 
 The Court of Common Picas in England consisted 
 of one chief and four puisne (associate) Justice*. It 
 is thought by some to have bees established by 
 king John for the purpose of diminishing the power 
 of the aula regis, but is referred by some writers 
 to a much earlier period. 8 Co. 289 ; 1 Poll. & Maltl. 
 177 ; Termcs de la Ley ; 3 Bla. Comm. 39. It exer- 
 cised an exclusive original jurisdiction In many 
 classes of civil cases. See 3 Sharsw. Bla. Comm. 38, 
 n. The right of practising in this court was for a 
 long time confined to two classes of practitioners, 
 limited In number; see Serjeant; but Is now 
 thrown open to the bar generally. Its jurisdiction Is 
 merged In the High Court of Justice. See Courts 
 of England. 
 
 Courts of the same name exist In many states. 
 
 COMMON RECOVERY. A judgment re- 
 covered in a fictitious suit, brought against 
 the tenant of the freehold, in consequence of 
 a default made by the person who is last 
 vouched to warranty in the suit, which re- 
 covery, being a supposed adjudication of the 
 right, binds all persons, and vests a free and 
 absolute fee-simple in the recoverer. 
 
 A common recovery Is a kind of conveyance, and 
 is resorted to when the object Is to create an ab- 
 solute bar of estates tail, and of the remainders 
 and reversions expectant on the determination of 
 such estates. 2 Bla. Com. 357. Though It has been 
 used in some of the states, this form of couveyance 
 Is nearly obsolete, easier and less expensive modes 
 of making conveyances, which have the same effect, 
 having been substituted ; 2 Bouvler, Inst. nn. 2092, 
 2096; Frost v. Cloutman, 7 N. H. 9, 26 Am. Dec. 
 723; Lyle v. Richards, 9" S. & R. (Pa.) 322; Stump v. 
 Findlay, 2 Rawle (Pa.) 168, 19 Am. Dec, 632 ; Sharp 
 v. Thompson, 1 Whart (Pa.) 151 ; Dow v. Warren, 
 6 Mass. 328. 
 
 COMMON SCHOOLS. Schools for general 
 elementary instruction, free to all the pub- 
 lic. 2 Kent 195. See Schools. 
 
 COMMON SCOLD. One who, by the prac- 
 tice of frequent scolding, disturbs the neigh- 
 borhood. Bish. Crim. Law § 147. 
 
 The offence of being a common scold is cog- 
 nizable at common law. It is a particular 
 form of nuisance, and was punishable by 
 the ducking-stool at common law, in place 
 of which punishment fine and imprisonment 
 are substituted in the United States; Whart. 
 Cr. L. 1442; James v. Com., 12 S. & R. (Pa.) 
 220. See 1 Term 748; 6 Mod. 11; 4 Rog. 
 90 ; 1 Russ. Cr. 302 ; Roscoe, Cr. Ev., Sth ed. 
 824; Baker v. State, 53 N. J. L. 45, 20 Atl. 
 858. 
 
 COMMON SEAL. The seal of a corpora- 
 tion. See Seal. 
 
 COMMON SERJEANT. A judicial officer 
 of the corporation of the city of Loudon. Tie 
 attends the Lord Mayor and Court of Alder- 
 men on court days and acts as one of the 
 judges of the Central Criminal Court Whart. 
 
 COMMON, TENANTS IN. See Estate in 
 
 Common. 
 
 COMMON TRAVERSE. See Traverse. 
 
 COMMON VOUCHEE. In common recov- 
 eries, the person who is vou< •!. arran- 
 ty. In this fictitious proceeding the crier of 
 the court usually performs the ofiice of a 
 common vouchee. 2 Bla. Com. 3* 
 
 COMMONALTY. The common 
 England, as distinguished from the kiu 
 nobles. 
 
 The body of a society or corporatlc 
 distinguished from the officers. 1 I'err.. & D. 
 243. Charters of Incorporation of the va- 
 rious tradesmen's societies, etc., in Ei 
 are usually granted to the master, wardens, 
 and commonalty of such corporation. 
 
 COMMONER. One possessing a right of 
 common. 
 
 COMMONS. Those subjects of the Eng- 
 lish nation who are not noblemen. They are 
 represented in parliament by the hou 
 commons. 
 
 COMMONWEALTH. A word which prop- 
 erly signifies the common weal or public pol- 
 icy ; sometimes it is used to designate a re- 
 publican form of government. But it was 
 used in royal times in reference to England. 
 17 L. Q. R. 131. 
 
 The English nation during the time of 
 Cromwell was called The Commonwealth. It 
 is the legal title of the states of Massachu- 
 setts, Pennsylvania, Kentucky, and Virginia. 
 
 C0MM0RANT. One residing in a particu- 
 lar town, city, or district Barnes 162. 
 
 C0MM0RIENTES. Those who perish at 
 the same time in consequence of the same 
 calamity. See Survivor; Death. 
 
 COMMUNE CONCILIUM. The King's 
 
 Council. See Privy Council. 
 
 C0MMUNI DIVIOUND0. In Civil Law. 
 An action which lies for those who have prop- 
 erty in common, to procure a division. It 
 lies where parties hold land in common but 
 not in partnership. Calvinus, Lex. 
 
 COMMUNINGS. In Scotch Law. The ne- 
 gotiations preliminary to a contract 
 
 C0MMUNI0 B0N0RUM (Lat). In Civil 
 Law. A community of goods. 
 
 When a person has the management of common 
 property, owned by himself and others, not as part- 
 ners, he Is bound to account for the profits, and is 
 entitled to be reimbursed for the expenses which he 
 has sustained by virtue of the quasi-contract which 
 is created by his act, called communio bonorum. 
 Vicat ; 1 Bouvier, Inst. n. 907, note. 
 
 COMMUNITY (Lat OOmmuniS, common). 
 In Civil Law. A corporation or body politic. 
 Dig. 3. 4. 
 
 "We can find In our law books no such 
 terms as corporation, body corporate, body 
 politic, though we may read much of con- 
 vents, chapters and communities. The larg-
 
 COMMUNITY 
 
 570 
 
 COMMUNITY 
 
 est term in general use is community, com- 
 monalty or commune, in Latin, communitas 
 or communa. It is a large, vague word. 
 . . . But we dare not translate it by cor- 
 poration, for if, on the one hand, it is de- 
 scribing cities and boroughs which already 
 are, or at least are on their way to become, 
 corporations, it will stand equally well for 
 counties, hundreds and townships which in 
 the end have failed to acquire a corporate 
 character. ..." 1 Poll. & Maitl. Hist 
 E. L. 494. 
 
 In French Law. A species of partnership 
 wbich a man and woman contract when they 
 are lawfully married to each other. 
 
 Conventional community is that which is 
 formed by express agreement in the contract 
 of marriage. 
 
 By this contract the legal community which would 
 otherwise subsist may be modified as to the propor- 
 tions which each shall take, and as to the things 
 which shall compose it. 
 
 Legal community is that which takes place 
 by virtue of the contract of marriage itself. 
 
 The French system of community prop- 
 erty was known as the dotal system. The 
 Spanish system was the Ganancial System, 
 q. v. The conquest of Mexico by the Span- 
 iards and their acquisition of the Florida 
 territory resulted in the introduction on 
 American soil of the Spanish system. Lou- 
 isiana, originally a French colony, was aft- 
 erwards ceded to Spain when the Spanish 
 law was introduced. It again reverted to 
 the French and from them was acquired by 
 the United States. The Louisiana Code has, 
 with slight modifications, adopted the dotal 
 system of the Code NapoUon as regards the 
 separate rights of husband and wife, but as 
 to tbeir common property it retained the es- 
 sential features of the Spanish ganancial sys- 
 tem. Texas and California have adopted the 
 community system of Spain and Mexico or 
 modified it by their constitutions. New Mex- 
 ico appears to have followed the Spanish 
 law of property rights of married persons 
 in its entirety. The community system as 
 adopted in older community states has been 
 adopted by Nevada, Washington, and Idaho, 
 with certain modifications. Hence it may be 
 said that the American community system 
 prevails at this day in Louisiana, Texas, Cal- 
 ifornia, Nevada, Arizona, Washington, Ida- 
 ho, Montana, and New Mexico, and in Porto 
 Rico, and is indebted to Spain for its origin. 
 See Ballinger, Community Property, § 6 ; 
 Chavez v. McKnight, 1 N. M. 147. It is said 
 to be the only remains in those states (except 
 Louisiana) of the civil law. 
 
 Property (in Washington Territory) acquir- 
 ed during marriage with community funds 
 became an aequet of the community and not 
 the sole property of the one in whose name 
 the property was bought, although by the 
 law existing at the time the husband was 
 given the management, control and power 
 
 of sale of such property; this right being 
 vested in him, not because he was the ex- 
 clusive owner, but because by law he was 
 created the agent of the community. War- 
 burton v. White, 176 U. S. 484, 20 Sup. Ct 
 404, 44 L. Ed. 555. 
 
 The community embraces the profits of all 
 the effects of which the husband has the ad- 
 ministration and enjoyment, either of right 
 or in fact; and of the estates which they 
 may acquire during the marriage, either by 
 donations made jointly to them, or through 
 their outlay or industry as well as the 
 fruits of the bienos proprios which each one 
 brought to the matrimony, and of all that 
 which this acquisition produced by whatever 
 title acquired; Ballinger, Community Prop. 
 § 5, or by purchase, or in any otber similar 
 way, even although the purchase be made in 
 the name of one of the two, and not of both ; 
 because in that case the period of time when 
 the purchase is made is alone attended to, 
 and not the person who made the purchase ; 
 Davidson v. Stuart, 10 La. 146 ; Brown v. 
 Cobb, 10 La. 172 ; Clark v. Norwood, 12 La. 
 Ann. 598. The debts contracted during the 
 marriage enter into the community, and must 
 be acquitted out of the common fund; but 
 not the debts contracted before the marriage. 
 
 The busband has the right to manage and 
 control the community property during its 
 existence; Warburton v. White, 176 U. S. 
 4S4, 20 Sup. Ct. 404, 44 L. Ed. 555 ; Stockstill 
 v. Bart, 47 Fed. 231 ; and hence he can alien- 
 ate or encumber during coverture, even 
 without the consent or joinder of the wife, 
 any of the property belonging to the com- 
 munity ; Spreckels v. Spreckels, 116 Cal. 
 339, 48 Pac. 228, 36 L. R. A. 497, 58 Am. St 
 Rep. 170 ; Cook v. Vault Co., 104 Ky. 473, 47 
 S. W. 325 ; Moore v. Moore, 73 Tex. 383, 11 
 S. W. 396; Hearfield v. Bridges, 75 Fed. 47, 
 21 C. C. A. 212. He must act in good faith 
 toward the wife, and if he disposes of prop- 
 erty with intent to defraud her, his convey- 
 ance or disposal will be voidable on that 
 ground, but a bona fide purchaser is pro- 
 tected ; Lord v. Hough, 43 Cal. 581 ; Cotton 
 v. Cotton, 34 La. Ann. 858 ; Hagerty v. Har- 
 well, 16 Tex. 663. But in Washington the 
 husband has no right to sell or encumber the 
 property unless the wife joins with him ; 
 Kimble v. Kimble, 17 Wash. 75, 49 S. W. 216, 
 In general a sale or conveyance of the prop- 
 erty by the wife alone is absolutely void; 
 Tryon v. Sutton, 13 Cal. 490; Humphries v. 
 Sorenson, 33 Wash. 563, 74 Pac. 690. 
 
 The property is liable for the community 
 debts; Succession of Kerley, 18 La. Ann. 
 583; Barnett v. O'Loughlin, 14 Wash. 259, 
 44 Pac. 267 ; and it is in general also liable 
 for the husband's separate debts ; Schuyler 
 v. Broughton, 70 Cal. 2S2, 11 Pac. 719 ; Lee 
 v. Henderson, 75 Tex. 190, 12 S. W. 981; 
 Gund v. Parke, 15 Wash. 393, 46 Pac. 408; 
 contra as to realty; Ross v. Howard, 31
 
 COMMUNITY 
 
 571 
 
 COMMUTATION 
 
 Wash. 393, 72 Pac. 74. The husband usually 
 sues alone in bis own name; Spreckels v. 
 Spreckels, 110 CaL 339, 48 Pac. 228, 36 L. R 
 A. 107, 58 Am. St. Rep. 170; Jordan v. Moore, 
 
 65 Tex. 363; Crow v. Van Sickle, Nev. 
 146; Ford v. Brooks, 35 La. Ann. 157. But 
 in Washington, since the husband and wife 
 have equal interests in the community, all 
 actions must be brought by the husband and 
 wife jointly ; Parke v. City of Seattle, 8 
 Wash. 78, 35 Pac. 594. 
 
 The community is dissolved by the death 
 of either spouse ; Thompson v. Vance, 110 
 La. 20, 34 South. 112; by divorce; Bi 
 Biggi, 9S Cal. 35, 32 Pac. 803, 35 Am. St. 
 Rep. 141; (contra, in Porto Rico, Garrozi v. 
 Dastas, 204 U. S. 64, 27 Sup. Ct. 224, 51 L. 
 Ed. 309) ; and by a judicial decree following 
 a suit for separation of property; Succes- 
 sion of Botbick, 52 La. Ann. 1SG3, 28 South. 
 458. A culpable abandonment of one spouse 
 by the other may entitle the party abandon- 
 ed to the rights in the community that fol- 
 low upon its dissolution ; Cullers v. James, 
 
 66 Tex. 494, 1 S. W. 314; mere voluntary 
 separation is not sufficient; Muse v. Yar- 
 borough, 11 La. 521 ; nor is insanity ; Suc- 
 cession of Botbick, 52 La. Ann. 180:1, 28 
 South. 45S. 
 
 Either surviving spouse may sell his or 
 her interest in the absence of fraud upon the 
 rights of others; Harvey v. Cummings, 68 
 Tex. 599, 5 S. W. 513 ; but the survivor can- 
 not, except for the payment of community 
 debts, alienate the interest of the heirs of 
 the deceased spouse ; Meyer v. Opperman, 
 76 Tex. 105, 13 S. W. 174 ; Biossat v. Sulli- 
 van, 21 La. Ann. 505. The general rule is 
 that one half of the property vests in the 
 surviving spouse and one half in the heirs 
 of the deceased ; Payne v. Payne, IS Cal. 
 291; George v. Delaney, 111 La. 700, 35 
 South. 894 ; Chadwick v. Tatem, 9 Mont. 354, 
 23 Pac. 729; Wortman v. Vorhies, 14 Wash. 
 152, 44 Pac. 129. 
 
 The effects which compose the community 
 of gains are divided into two equal portions 
 between the heirs at the dissolution of the 
 marriage ; La. Civ. Code 2375. See Pothier, 
 Contr. ; Toullier. But the wife's interest in 
 the community property is residuary and she 
 is not the owner of any specific property be- 
 fore the debts are paid, whether to third 
 persons or to the succession of her husband; 
 Bert helot v. Fitch, 45 La. Ann. 3S9, 12 South. 
 625. 
 
 A right to recover damages for personal 
 injuries, if acquired during marriage, is 
 considered community property; Neale v. Ry. 
 Co., 94 Cal. 425, 29 Pac. 954. 
 
 See Acoj 
 
 COMMUTATION. The change of a punish- 
 ment to which a person has been condemned 
 into a less severe one. This can be granted 
 only by the authority in which the pardoning 
 power resides. See Ex parte Janes, 1 Nev. 
 
 321; In re Victor, 31 Ohio St. 206; Lee v. 
 -Murphy, 22 Gratt (Va.) 789, 12 Am. Rep 
 See Pbisoneu. 
 
 COMMUTATIVE CONTRACT. In Civil 
 Law. One in which each of the contracting 
 parties gives and receives an equivalent. 
 
 The contract of sale is of Tbe 
 
 seller gives the thing sold, and r< 
 which is the equivalent. 1 
 gives the price, and receives tbe I 
 which is the equivalent Such contract 
 usually distributed into foul- 
 ly: Do ut des (I give that you may give); 
 Facio ut facias (I do that you may do) ; 1 ac- 
 ta ut des (I do that you may give); Do ut 
 facias (I give that you may do). Pothier, 
 Obi. n. 13. See La. Civ. Code, art. 1761. 
 
 COMPACT. An agreement A contract 
 between parties, which creates obligations 
 and rights capable of being enforced, and 
 contemplated as such between the parties, in 
 their distinct and independent characters. 
 Story, Const, b. 3, c. 3 ; Iiutherf. Inst b. 2, 
 c G, § 1. 
 
 The parties may be nations, states, or in- 
 dividuals; but the constitution of the Unit- 
 ed States declares that "no state shall, with- 
 out the consent of congress, enter into agree- 
 ment or compact with another state, or with 
 a foreign power." See Marlatt v. Silk, 11 
 Pet (U. S.) 1, 9 L. Ed. 009 ; Poole v. I :■ 
 
 11 Pet (U. S.) 185, 9 L. Ed. 680; Green v. 
 Biddle, 8 Wheat. (U. S.) 1, 5 L. Ed 
 
 COMPANIONS. In French Law. A 
 
 al term, comprehending all persons who < om- 
 pose the crew of a ship or vessel. Pothier, 
 Mar. Contr. n. 103. 
 
 COMPANY. An association of a number 
 of individuals for the purpose of carrying on 
 some legitimate business. 
 
 This term' is not synonymous with partnership, 
 though every such unincorporated company is a 
 'partnership. Usage has reserved the term to as- 
 sociations whose members are in greater number, 
 their capital more considerable, and their enter- 
 prises greater, either on account of their risk or 
 importance. 
 
 When these companies are authorized by the gov- 
 ernment, they are known by the name of corpora- 
 tions. 
 
 The proper signification of the word "com- 
 pany" when applied to a person euga^ 
 trade, denotes those united for the same pur- 
 pose or in a joint concern. It is commonly 
 used in this sense or as Indicating a partner- 
 ship, rainier v. Pinkham, 33 Me 32, 
 
 Sometimes the word is used to represent 
 those members of a partnership whose names 
 do not appear in the name of the firm. See 
 
 12 Toullier 97. 
 
 COMPARATIVE JURISPRUDENCE. See 
 
 Jt'lUsrUlMlENCE. 
 
 COMPARATIVE NEGLIGENCE. That 
 doctrine in the law of negligence by which 
 the negligence of the parties is compared in 
 the degree of "slight," "ordinary," and
 
 COMPARATIVE NEGLIGENCE 
 
 572 
 
 COMPENSATION 
 
 "gross" negligence, and a recovery permit- 
 ted notwithstanding the contributory negli- 
 gence of the plaintiff, when the negligence 
 of the plaintiff is slight and the negligence 
 of the defendant gross, but refused when the 
 plaintiff has been guilty of a want of ordi- 
 nary care contributing to his injury; or 
 when the negligence of the defendant is not 
 gross, but only ordinary or slight when com- 
 pared under the circumstances of the case 
 with the contributory negligence of the plain- 
 tiff. Chicago, B. & Q. R. Co. v. R. Co., 103 
 111. 512; Calumet Iron & Steel Co. v. Mar- 
 tin, 115 111. 358, 3N.E. 456 ; Rockford, R. I. 
 & St. L. R. Co. v. Delaney, 82 111. 198, 25 Am. 
 Rep. 308. This doctrine existed in the civil 
 law, and in some instances in admiralty, but 
 it did not exist in the states other than Illi- 
 nois and Louisiana. 
 
 The doctrine of comparative negligence no 
 longer obtains in Illinois ; it must now be 
 established in actions for personal injuries, 
 or for death by wrongful act that the plain- 
 tiff, or the deceased, was exercising ordinary 
 care; Imes v. R. Co., 105 111. App. 37; see 
 Sluder v. Transit Co., 189 Mo. 107, 88 S. W. 
 648, 5 L. R. A. (N. S.) 239. It has been re- 
 vived in the Federal Employer's Liability Act 
 of 1908. 
 
 COMPATIBILITY. Such harmony be- 
 tween the duties of two offices that they 
 may be discharged by one person. 
 
 C0MPENSACI0N. In Spanish Law. The 
 
 extinction of a debt by another debt of equal 
 dignity between persons who have mutual 
 claims on each other. 
 
 C0MPENSATI0 CRIMINIS. The compen- 
 sation or set-off of one crime against anoth- 
 er: for example, in questions of divorce, where 
 one party claims the divorce on the ground 
 of adultery of his or her companion, the 
 latter may show that the complainant has 
 been guilty of the same offence, and, having 
 himself violated the contract, cannot com- 
 plain of its violation on the other side. This 
 principle is incorporated in the codes of most 
 civilized nations. See 1 Hagg. Cons. 144 ; 1 
 Hagg. Eccl. 714; Wood v. Wood, 2 Paige, 
 Ch. (N. Y.) 108, 2 D. & B. 64 ; Bishop, Marr. 
 & D. §§ 393, 394. 
 
 COMPENSATION. In Chancery Practice. 
 Something to be done for or paid to a per- 
 son of equal value with something of which 
 he has been deprived by the acts or negli- 
 gence of the party so doing or paying. 
 
 When a simple mistake, not a fraud, ef- 
 fects a contract, but does not change its 
 essence, a court of equity will enforce it, 
 upon making compensation for the error. 
 "The principle upon which courts of equity 
 act," says Lord Chancellor Eldon, "is by all 
 the authorities brought to the true standard, 
 that though the party had not a title at law, 
 because he had not strictly complied with 
 the terms so as to entitle him to an action 
 
 (as to time, for instance), yet If the time, 
 though introduced (as some time must be 
 fixed, where something is to be done on one 
 side, as a consideration for something to be 
 done on the other), is not of the essence of 
 the contract, a material object, to which 
 they looked in the first conception of it, even 
 though the lapse of time has not arisen from 
 accident, a court of equity will compel the 
 execution of the contract upon this ground, 
 that one party is ready to perform, and that 
 the other may have a performance in sub- 
 stance if he will permit it ;" 13 Ves. Ch. 287. 
 See 10 id. 505 ; 13 id. 73, 81, 426 ; 6 id. 575 ; 
 
 1 Cox, Ch. 59. 
 
 In Civil Law. A reciprocal liberation be- 
 tween two persons who are both creditors 
 and debtors of each other. Est debiti et 
 crediti inter se contributio. Dig. 16. 2. 1. 
 
 It resembles In many respects the common-law 
 set-off. The principal difference is that a set-off 
 must be pleaded to be effectual; whereas com- 
 pensation Is effectual without any such plea. See 
 
 2 Bouvier, Inst. n. 1407. 
 
 It may be legal, by way of exception, or 
 by reconvention; Blanchard v. Cole, 8 La. 
 158 ; 8 Dig. 16. 2 ; Code, 4. 31 ; Inst. 4. 6. 30 ; 
 Burge, Suret, b. 2, a 6, p. 181. 
 
 It takes place by mere operation of law, 
 and extinguishes reciprocally the two debts 
 as soon as they exist simultaneously, to the 
 amount of their respective sums. It takes 
 place only between two debts having equally 
 for their object a sum of money, or a certain 
 quantity of consumable things of one and the 
 same kind, and which are equally liquidated 
 and demandable. It takes place whatever 
 be the cause of the debts, except in case, 
 first, of a demand of restitution of a thing 
 of which the owner has been unjustly de- 
 prived ; second, of a demand of restitution 
 of a deposit and a loan for use; third, of a 
 debt which has for its cause aliments declar- 
 ed not liable to seizure. La. Civ. Code 2203- 
 2208. See Dorvin v. Wiltz, 11 La. Ann. 520 ; 
 Stewart v. Harper, 16 La. Ann. 181. 
 
 As to taking property, see Eminent Do- 
 main. 
 
 In Criminal Law. Recrimination, which 
 see. 
 
 C0MPERT0RIUM. In the Civil Law. A 
 
 judicial inquest by delegates or commission- 
 ers to find out and relate the truth of a 
 cause. Wharton. 
 
 COMPERUIT AD DIEM (Lat. he appear- 
 ed at the day). A plea in bar to an action 
 of debt on a bail bond. The usual replica- 
 tion of this plea is, nul tiel record: that 
 there is not any such record of appearance 
 
 of the said . For forms of this plea, see 
 
 5 Wentworth 470; Lilly, Entr. 114; 2 Chit. 
 PI. 527. 
 
 When the issue is joined on this plea, the 
 trial is by the record. See 1 Taunt. 23; 
 Tidd, Pr. 239. And see, generally, Comyns, 
 Dig. Pleader (2 W. 31) ; 7 B, & C. 478.
 
 compi:tp:ncy 
 
 573 
 
 C<>M! 'LA INT 
 
 COMPETENCY. The legal fitness or abil- 
 ity of a witness to be heard on the trial of a 
 cause. That quality of written or other evi- 
 dence which renders it proper to be given 
 on the trial of a cause. 
 
 There Is a difference between competency and 
 credibility. A witness may be competent, find, on 
 examination, his story may be so contradictory and 
 improbable that he may not be believed; on the 
 contrary, he may be incompetent, and yet be per- 
 fectly credible if he were examined. 
 
 The court are the sole judges of the com- 
 petency of a witness, and may, for the pur- 
 pose of deciding whether the witness is or 
 is not competent, ascertain all the facts nec- 
 essary to form a judgmenl ; 1 Greenl. Ev. § 
 4l><;. 
 
 Prima facie every person offered is a com- 
 petent witness, and must be received, unless 
 his incompetency appears; 9 State Tr. 052. 
 In French Law. The right in a court to 
 exercise jurisdiction in a particular case: 
 as. where the law gives jurisdiction to the 
 court when a thousand francs shall be in 
 dispute, the court is competent if the sum 
 demanded is a thousand francs or upwards, 
 although tbe plaintiff may ultimately re- 
 cover less. 
 
 COMPETENT. Able, fit, qualified; au- 
 thorized or capable to act Abb. L. Diet. ; 
 as competent court; 1 C. P. D. 17G; compe- 
 tent evidence; Chapman v. McAdams, 1 Lea 
 (Tenn.) 504; competent persons, 5 Ad. & El. 
 75; competent cleric, Porter v. Duglass, 27 
 Miss. 393. 
 
 COMPETENT EVIDENCE. That evidence 
 which the very nature of the thing to be 
 proven requires, as the production of a writ- 
 ing where its contents are the subject of in- 
 quiry. Chapman v. McAdams, 1 Lea (Tenn.) 
 504 ;' 1 Greenl. Ev. § 2. See Evidence. 
 
 COMPETENT WITNESS. One who is le- 
 gally qualiiied to be heard to testify in a 
 cause. In many states a will must be attest- 
 ed, for the purpose of passing lands, by com- 
 petent witnesses. 
 
 COMPILATION. A literary production 
 composed of the works of others and arrang- 
 ed in a methodical manner. 
 
 A compilation requiring, in its execution, 
 taste, learning, discrimination, and intellec- 
 tual labor, is an object of copyright (q. v.); 
 as, for example, Bacon's Abridgment. Cur- 
 tis, Copyr. ISO. A compilation consists of 
 selected extracts from different authors; an 
 abridgment is a condensation of tbe views 
 of an author; Story v. Ilolcombe, 4 McLean 
 314. Fed. Cas. No. 13,497. 
 
 COMPLAINANT. One who makes a com- 
 plaint. A plaintiff in a suit in chancery is 
 so called. 
 
 COMPLAINT. In Criminal Law. The al- 
 legation made to a proper officer that some 
 person, whether known or unknown, has 
 been guilty of a designated offence, with an 
 offer to prove the fact, and a request that 
 
 the offender may be punished. It is a tech- 
 nical term, descriptive of proceedings before 
 istrate. Com. v. Davis, 11 Pick. 
 i Masa I 436. 
 
 To have a legal effect, the complaint must 
 be Bupported by suob ■ that 
 
 an offence has been committed and renders 
 it certain or probable that it was committed 
 by the person named or described in the 
 complaint. 
 
 The fact that a complaint is drawn in 
 flagrant disregard of the rules of i 
 not suilicieut to support a demurrer th 
 if the allegations are era of a con- 
 
 struction that will support the action; U. S. 
 Nat Bank v. Bank, 18 N. Y. Supp. 1 
 
 In Practice. The name given in New York 
 and other states to the statement of the 
 plaintiff's case which takes the place of the 
 declaration in common-law pleading. 
 
 COMPOS MENTIS. See Now Compos 
 Mentis. 
 
 COMPOSITION. An agreement, made up- 
 on a sufficient consideration, between a debt- 
 or and creditor, by which the creditor ac- 
 cepts part of the debt due to him in satis- 
 faction of the whole. See Compounding a 
 Felony. 
 
 A composition deed executed by a debtor 
 and his creditors in due form, operates 
 settlement of the original claims of such 
 creditors and supersedes the cause of action 
 thereon, the rights and remedies <>f the par- 
 ties being determined thereafter by the now 
 agreement; Brown v. Farnham, 4S Minn. 317, 
 51 N. W. 377. An oral agreement between 
 several creditors and their debtor to com- 
 pound and discharge their claims is valid ; 
 Halstead v. Ives, 73 Hun 56, 25 N. Y. Supp. 
 1058; Chemical Nat. Bank v. Kohner, 85 N. 
 Y. 189. In an action upon a composition 
 agreement, any creditor being a party there- 
 to may bring a several action for damages 
 for breach thereof; Brown v. Farnham, 55 
 Minn. 27, 56 N. W. 352. 
 
 COMPOSITION OF MATTER. A mixture 
 or chemical combination of materials. The 
 term is used in the act of congress, July 4, 
 1836, 8 6, in describing the subjects of pat- 
 ents. It may include both the substance and 
 the process, when the compound is new. 
 
 COMPOUND INTEREST. Interest upon 
 interest; for example, when a sum of mon- 
 ey due for interest is added to the principal, 
 and then bears interest. 'Ibis is not hi gen- 
 eral, allowed. See Intei: 
 
 COMPOUNDER. In Louisiana. He who 
 makes a composition. 
 
 An amicable compounder is one who has 
 undertaken by the agreement of the parties 
 to compound or settle differences between 
 them. La. Code of Pract. art. 444. 
 
 COMPOUNDING A FELONY. The act of 
 a party immediately aggrieved, who agrees 
 with a thief or other felon that he will not
 
 COMPOUNDING A FELONY 
 
 574 
 
 COMPOUNDING A FELONY 
 
 prosecute him, on condition that he return 
 to him the goods stolen, or who takes a re- 
 ward not to prosecute. See State v. Buck- 
 master, 2 Harr. (Del.) 532; Both well v. 
 Brown, 51 111. 234; Chandler v. Johnson, 39 
 Ga. 85 ; Powell v. State, 51 Tex. Cr. R. 342, 
 101 S. W. 100G. 
 
 This is an offence punishable by fine and 
 imprisonment, and at common law rendered 
 the person committing it an accessory ; 
 Hawk. PI. Cr. 125. And a conviction may be 
 had though the person guilty of the original 
 offence has not been tried ; Watt v. State, 
 97 Ala. 72, 11 South. 901 ; or if no offence lia- 
 ble to a penalty has been committed by the 
 person from whom the consideration is re- 
 ceived; State v. Carver, 69 N. H. 216, 39 
 Atl. 973. A failure to prosecute for an as- 
 sault with an intent to kill is not compound- 
 ing a felony ; Phillips v. Kelly, 29 Ala. 628. 
 The accepting of a promissory note signed 
 by a party guilty of larceny, as a considera- 
 tion for not prosecuting, is sufficient to con- 
 stitute the offence; Com. v. Pease, 16 Mass. 
 91 ; and the offence is committed although 
 the consideration is for another than the one 
 making the agreement ; State v. Ruthven, 58 
 la. 121, 12 N. W. 235. The mere retaking 
 by the owner of stolen goods is no offence, 
 unless the offender is not to be prosecuted ; 
 Hale, PI. Cr. 546 ; 1 Chit. Cr. Law 4 ; Clarke, 
 Cr. L. 329; Bothwell v. Brown, 51 111. 234. 
 
 In an indictment for compounding a felony, 
 it must be alleged that the felony was com- 
 mitted by the person with whom the corrupt 
 agreement is made ; State v. Hodge, 142 N. 
 C. 665, 55 S. E. 626, 7 L. R. A. (N. S.) 709, 
 9 Ann. Cas. 563. The agreement not to pros- 
 ecute being the gist of the offense, it must 
 be clearly charged ; Williams v. State, 51 
 Tex. Cr. 1, 100 S. W. 149. An information 
 is insufficient if it fails to allege that the de- 
 fendant intended to hinder the course of jus- 
 tice and allow the felon to escape unpunish- 
 ed ; State v. Wilson, 80 Vt. 249, 67 Atl. 533. 
 See note 20 L. R. A. (N. S.) 484. 
 
 The compounding of misdemeanors, as it 
 is also a perversion or defeating of public 
 justice, is in like manner an indictable of- 
 fence at common law ; Jones v. Rice, 18 
 Pick. (Mass.) 440, 29 Am. Dec. 612; Pearce 
 v. Wilson, 111 Pa. 14, 2 Atl. 99, 56 Am. Rep. 
 243; McMahon v. Smith, 47 Conn. 221, 36 
 Am. Rep. 67. But the law will permit a 
 compromise of any offence, though made the 
 subject of a criminal prosecution, for which 
 the injured party might recover damages in 
 an action. 
 
 There is said to be no reported case in 
 England for compounding a misdemeanor, 
 but that in grave cases (perjury or rioting) 
 it would be held an offence ; such agreements 
 in lesser cases are often sanctioned by courts. 
 and in cases when the injured party can 
 both sue and prosecute (especially for an 
 assault) compromises are not illegal and 
 will be enforced; Odgers, C. L. 202, citing L. 
 
 R. 10 Ch. 297. But, if the offence is of a 
 public nature, no agreement can be valid 
 that is founded on the consideration of sti- 
 fling a prosecution for it ; 6 Q. B. 308 ; Fay 
 v. Oatley, 6 Wis. 42 ; Buck v. Bank, 27 Mich. 
 293, 15 Am. Rep. 189 ; Shaw v. Reed, 30 Me. 
 105; Jones v. Rice, 18 Pick. (Mass.) 440, 29 
 Am. Dec. 012 ; State v. Carver, 69 N. H. 216, 
 39 Atl. 973. 
 
 Compounding a felony is an indictable of- 
 fence. No action can be supported on any 
 contract of which such offence is the con- 
 sideration in whole or in part; Com. v. 
 Pease, 16 Mass. 91 ; Mattacks v. Owen, 5 Vt. 
 42; Plumer v. Smith, 5 N. H. 553, 22 Am. 
 Dec. 478; People v. Buckland, 13 Wend. (N. 
 Y.) 592; Sneed v. Com., 6 Dana (Ky.) 338; 
 Levy v. Ross, T. U. P. Charlt. (Ga.) 292. 
 A receipt in full of all demands given in 
 consideration of stifling a criminal prosecu- 
 tion is void; Bailey v. Buck, 11 Vt. 252. 
 A contract which is void as compounding a 
 felony is incapable of ratification ; Stanard 
 v. Sampson, 23 Okl. 13, 99 Pac. 796 ; the law 
 leaves the parties where it finds them ; it will 
 neither aid in enforcing the contract, nor 
 permit a recovery of the consideration ; 
 Town of Cottonwood v. Austin, 158 Ala. 117, 
 48 South. 345; Jourdan v. Burstow, 76 N. 
 J. Eq. 55, 74 Atl. 124, 139 Am. St. Rep. 741. 
 
 Proceedings on a judgment by confession 
 will be enjoined where the consideration was 
 stifling a prosecution for fopgery; Given's 
 Appeal, 121 Pa. 260, 15 Atl. 468, 6 Am. St. 
 Rep. 795. An injunction will be granted 
 against action on a note given in considera- 
 tion of compounding a felony ; Porter v. 
 Jones, 6 Coldw. (Tenn.) 313; 13 Sim. 513; 
 contra, Adams v. Barrett, 5 Ga. 404; Allison 
 v. Hess, 28 la. 388; Williams v. Englebrecht, 
 37 Ohio St. 383 ; Rock v. Mathews, 35 W. Va. 
 537, 14 S. E. 137, 14 L. R. A. 508. 
 
 C0MPRA Y VENTA (Span.). Buying 
 and selling. The laws of contracts arising 
 from purchase and sale are given very fully 
 in Las Partidas, part 3, tit. xviii. 11. 56. 
 
 COMPRINT. The surreptitious printing 
 of the copy of another to the intent to make 
 a gain thereby. Strictly, it signifies to print 
 together. There are several statutes in pre- 
 vention of this act Jacob; Cowell. 
 
 C0MPRIVIGNI (Lat). Step-brothers or 
 step-sisters. Children who have one parent, 
 and only one, in common. Calvinus, Lex. 
 
 C0MPR0MIS ( French ) . An agreement of 
 arbitration. 2 Amer. J. of Int. L. 898. 
 
 C0MPR0MISARIUS. In Civil Law. An 
 
 arbitrator. 
 
 COMPROMISE. An agreement made be- 
 tween two or more parties as a settlement 
 of matters in dispute. 
 
 Such settlements are sustained at law; 
 Poll. Contr. 180; Durham v. Wadlington, 2 
 Strobh. Eq. (S. C.) 258; Van Dyke v. Davis, 
 2 Mich. 145 ; and are highly favored ; Zane's
 
 COMPROMISE 
 
 575 
 
 COMl'Ri )MISE 
 
 Devisees v. Zane, 6 Munf. (Va.) 406; Tay- 
 lor v. Patrick, 1 Bibb (Ky.) 168; Truett v. 
 Chaplin, 11 N. C. 178; Stoddard v. Mix, 14 
 Conn. 12; Barlow v. Ins. Co., 4 Mete. (Mass.) 
 270; Hart v. Gould, 62 Mich. 262, 28 N. W. 
 831. The amount in question must, it seems, 
 be uncertain; 2 B. & Ad. 889. And see Muir- 
 head v. Kirkpatrick, 21 Pa. 237; Livingston 
 v. Dugan, 20 Mo. 102; Wilbur v. Crane, 13 
 Pick. (Mass.) 284; 3 M. & W. 648. The 
 compromise of a doubtful or disputed claim 
 is a sufficient consideration to uphold an as- 
 sumpsit; Cox v. Stokes, 156 N. Y. 491, 51 N. 
 E. 316. See Battle v. McArthur, 49 Fed. 715. 
 The compromise of a doubtful claim made 
 in good faith is a good consideration for a 
 promise, though it afterwards appears that 
 the claim was wholly groundless; L. R. 5 
 Q. B. 449 ; Union Collection Co. v. Buckman, 
 150 Cal. 159, SS Pac. 708, 9 L. R. A. (N. S.) 
 568, 119 Am. St. Rep. 164, 11 Ann. Cas. 609. 
 It is not necessary that the claim settled 
 should be one that could be successfully 
 maintained; Neibles v. Ry. Co., 37 Minn. 151, 
 33 N. W. 332. Nor is necessary that there 
 should be any doubt about the claim ; it is 
 enough if the parties consider it doubtful; 
 City Electric Ry. Co. v. Floyd County, 115 
 Ga. 655, 42 S. E. 45; Bement v. May, 135 
 Ind. 664, 34 N. E. 327, 35 N. E. 387; or if 
 the parties thought at the time that there 
 was a real question between them; Alexan- 
 der v. Trust Co., 100 Md. 170, 66 Atl. 836. 
 In Pitkin v. Noyes, 48 N. H. 294, 97 Am. 
 Dec. 615, 2 Am. Rep. 218, it was held that 
 the claim must be one which was understood 
 by both parties to be doubtful. It is said 
 that the question is as to the belief, in good 
 faith, of the claimant in the validity of his 
 claim. There must be a colorable ground 
 for the claim; Smith v. Boruff, 75 Ind. 412; 
 an agreement not to contest a will is not 
 enough, if the party had no right to make 
 a contest; Bement v. May, 135 Ind. 664, 84 
 N. E. 327, 35 N. E. 387. "A claim is honest 
 if the claimant does not know that his claim 
 is unsubstantial, or if he does not know the 
 facts which show that his claim is a bad 
 one;" L. R. 32 Ch. Div. 206; Grandin v. 
 Grandin, 49 N. J. L. 514, 9 Atl. 756, 60 Am. 
 Rep. 642. But it has been held that one 
 may buy his peace by compromising a claim 
 which he knows is without right; Dailey v. 
 King. 79 Mich. 568, 44 N. W. 959. But the 
 compromise of an illegal claim will not sus- 
 tain a promise: Read v. Hitchings. 71 Mo. 
 590; so of a note given for a gambling debt; 
 Tyson v. Woodruff, 108 Ga. 368, 33 S. E. 981 ; 
 and a note given for liquor sold without a 
 license; Melchoir v. MeCarty, 31 Wis. 252, 
 11 Am. Rep. 605; where, however, the illegal 
 contract has been fully performed, a compro- 
 mise may be valid ; Antoine v. Smith, 40 La. 
 Ann. 560, 4 South. 321 ; and where the par- 
 ties have disputed claims against eacli other 
 and agree to settle them, it is binding al- 
 though some or all of the claims were ille- 
 
 gal ; Wilder v. R. Co., 61 Vt. 43, 25 Atl. S9<> ; 
 after a claim is in suit, it is said to make 
 no difference whether it could have been 
 maintained or not; Clark v. TurnbuU, 47 N. 
 J. L. 205, 54 Am. Rep. 157. The sub' 
 fully treated in Armijo v. Henry, 14 N. M. 
 181, 89 Pac. 305, 25 L. R. A. (N. 
 
 Where a debtor tenders part of a disputed 
 claim to the creditor in full >n, if 
 
 the latter accepts the tender, be is boi 
 the terms thereof; Deutmann v. Kilpatrick, 
 46 .Mo. App. 024. An offer of settlement by 
 plaintiff, but not accepted by defendant 
 not bind either party; Clark v. Pope, 29 l'la. 
 238, 10 South. 586. As to a compromise of a 
 criminal charge, see Compounding a Fel- 
 ony. 
 
 An offer to pay money by way of compro- 
 mise is not evidence of debt, since, as was 
 said by Lord Mansfield, "it must be permit- 
 ted to men 'to buy their peace' without prej- 
 udice to them, if the offer did not succeed ; 
 ami such offers are made to stop litigation 
 without regard to the question whether any- 
 thing, or what, is due." 
 
 If the terms "buy their peace" are attended to, 
 they 'will resolve all doubts on this head of evi- 
 dence; Bull. N. P. 236; and the author adds an 
 example: If A sue B for one hundred pounds, and 
 B o£L'er to pay him twenty pounds, it shall not be 
 received in evidence, for this neither admits nor 
 ascertains any debt, and is no more than saying he 
 would give twenty pounds to get rid of the action. 
 But if an account consist of ten articles, and B ad- 
 mits that a particular one is due, it Is good evidence 
 for so much. 
 
 In one of the oldest cases on the subject. Lord 
 Kenyon declared at nisi prius : "Evidence of con- 
 cessions made for the purpose of settling matters la 
 dispute I shall never admit ;" 3 Esp. 113 ; but evi- 
 dence was admitted that after the action was 
 brought the defendant called upon the plaintiff 
 and said he was sorry that the thing had happened, 
 and offered two hundred pounds in settlement, 
 which was not accepted; 3 Stark. N. P. 12S; and in 
 other cases evidence of offers of compromise made, 
 but not expressed to be without prejudice, were 
 held to be admissible; 1 M. <£ W. 416; apparently in 
 opposition to the rule laid down by Lord Mans- 
 field and Lord Kenyon above referred to. 
 
 It may, however, be considered settled 
 that letters or admissions containing the ex- 
 pression in substance that they are to be 
 without prejudice will not be admitted in 
 evidence; 4 C. & P. 462; L. R. 6 Ch. 827; S 
 Sc. N. R. 741. 
 
 In the last case the rule Is put definitely on the 
 ground of public policy by Tindal, C. J., who said: 
 "It is of great consequence that parties should be 
 unfettered by correspondence entered into upon 
 the express understanding that it is to be without 
 prejudice," and he also declared "that whore used 
 In the letter containing the offer, the words 'with- 
 out prejudice' must cover the whole correspond- 
 ence." And this rule has been followed and it was 
 held that not only the letter bearing the words 
 "without prejudice," but also the answer thereto, 
 which was not so guarded, was inadmissible in evi- 
 dence ; and to the same effect is L. R. 10 Ch. 264. 
 It is the recognized rule in the United States that 
 admissions made in treating for an adjustment can- 
 not be given in evidence; Ferry v. Taylor. 33 Mo. 
 323; Durgin v. Somers, 117 Mass. 55; Molyneaux r. 
 Collier, 13 Ga. 406; and in Canada; 3 Ont. G 
 id. 442. In Finn v. Tel. Co., 101 Me. 279, 64 Atl. 
 490, It was held that the admissibility of such evi-
 
 COMPROMISE 
 
 57G 
 
 COMPROMISE 
 
 dence depended upon the intention of the party seek- 
 ing the compromise. If he intended it as an admis- 
 sion of liability, it was admissible; if he only in- 
 tended it as a compromise settlement, it was not. 
 
 Verbal offers of ■ compromise of a claim 
 made by a defendant's solicitor are also pro- 
 tected and cannot be given in evidence 
 against bis client ; 2 C. & K. 24 ; 6 C. P. 437. 
 
 An account rendered by the defendant to the 
 plaintiff, showing a balance in the plaintiff's favor, 
 accompanied by a letter proposing an arrangement 
 and stating that the letter and account were without 
 prejudice was held to be inadmissible as evidence ; 
 6 C. P. 437. The principle of the exclusion of such 
 admissions, whether verbal or documentary, there- 
 fore, seems to rest on the fact that there is some 
 matter in controversy or some claim by one person 
 against the other for the settlement or adjustment 
 of which the communication is made, and that in 
 furtherance of the maxim, "Interest respublicce ut sit 
 finis litium," it is for the public good that communi- 
 cations having that end in view should not be al- 
 lowed to prejudice either party in the event of their 
 proving abortive. It is not necessary that such 
 communications should be expressly guarded if they 
 manifestly appear to have been made by way of 
 compromise; 2 C. & K. 24 ; such admissions or ne- 
 gotiations are inadmissible whether made "without 
 prejudice" or not; Reynolds v. Manning, 15 Md. 
 510; Prick & Co. v. "Wilson, 36 S. C. 65, 15 S. E. 331 ; 
 Emery v. Real Estate Exch., 88 Ga. 321, 14 S. E. 
 556 ; Smith v. Satterlee, 130 N. Y. 677, 29 N. E. 225 ; 
 2 Whart. Ev. § 1090; but see Chaff e v. Mackenzie, 43 
 La. Ann. 1062, 10 South. 369; Hood v. Tyner, 3 Ind. 
 App. 51, 28 N. E. 1033 ; Thorn v. Hess, 51 111. App. 
 274. Where a letter opening negotiations for a com- 
 promise, but not stated to be without prejudice, was 
 followed a day or two afterwards by another guard- 
 ing against prejudice, it was held that the whole 
 correspondence was thereby protected; 26 W. R. 
 109, and Gurney, B., refused to receive in evidence 
 a letter written "without prejudice," even in favor 
 of the party who had written it, saying, "If you 
 write without prejudice so as not to bind yourself, 
 you cannot use the letter against the other party ;" 
 8 C. & P. 388. 
 
 And evidence of plaintiff tbat offers of 
 compromise were made by bim is inadmis- 
 sible; York v. Conde, 66 Hun 316, 20 N. Y. 
 Supp. 961. And negotiations between par- 
 ties for the purpose of clearing title to land 
 and compromising differences will not prej- 
 udice the rights of either party; Hand v. 
 Swann, 1 Tex. Civ. App. 241, 21 S. W. 282. 
 
 Correspondence of this kind is not only 
 inadmissible as evidence at the trial of the 
 action, but it has also been held to be priv- 
 ileged from production for the purpose of 
 discovery ; 11 Beav. Ill ; 15 id. 321, 388. 
 
 Romilly, M. R., in the last of these cases, stated 
 the rule very much in the same way as did Tindal, 
 C. J., supra; he said: "Such communications made 
 with a view of an amicable arrangement ought to 
 be held very sacred, for if parties were to be after- 
 wards prejudiced by their efforts to compromise, it 
 would be impossible to attempt an amicable ar- 
 rangement of differences." 
 
 When a correspondence for a settlement 
 had commenced "without prejudice" but 
 those words were afterwards dropped, it 
 was immaterial; 6 Ont. 719. 
 
 The same principle is applied where the 
 cause of action is other than a debt, as in a 
 bastardy proceeding, where offers of com- 
 promise were held not admissible against the 
 defendant as admissions of his guilt; Olson 
 
 v. Peterson, 33 Neb. 35S, 50 N. W. 155 ; East 
 Tennessee, V. & G. Ry. Co. v. Davis, 91 Ala. 
 615, 8 South. 349 ; Carey v. Carey, 108 N. C. 
 267, 12 S. E. 1038 ; nor does the payment of 
 a certain sum on a claim for a much larger 
 sum constitute a recognition of a legal lia- 
 bility to make further payments on such 
 claim ; Camp v. U. S., 113 U. S. 648, 5 Sup. 
 Ct. 687, 28 L,. Ed. 10S1 ; but where offers of 
 compromise are made to a third person, who 
 has no authority to settle the claim, and 
 there is no intimation that they were made 
 "without prejudice" or in confidence, they 
 are admissible in evidence ; Moore v. Mfg. 
 Co., 113 Mo. 98, 20 S. W. 975 ; a statement 
 made by one of several defendants to his co- 
 defendants, advocating the settlement of 
 plaintiff's claims is not within the rule ex- 
 cluding offers made for the purpose of com- 
 promise, but is competent as an admission of 
 liability; Smith v. Whittier, 95 Cal. 279, 30 
 Pac. 529 ; and evidence of the admission of 
 an independent fact, although made during a 
 negotiation tending towards a compromise, is 
 admissible; Hess v. Van Auken, 11 Misc. 
 422, 32 N. Y. Supp. 126; Durgin v. Somers, 
 117 Mass. 55. 
 
 In a prosecution for rape, evidence that 
 defendant had offered money to the foster 
 father of prosecutrix to stop criminal pro- 
 ceedings was incompetent, Sanders v. State, 
 148 Ala. 603, 41 South. 466. 
 
 The extent of the protection which may be in- 
 voked by the use of the word "without prejudice" 
 is limited to the purposes contemplated by the rule 
 as stated and will not be extended to exclude evi- 
 dence of communications, which from their charac- 
 ter may prejudice the person to whom it is ad- 
 dressed if he should reject the offer; 62 L. J. Rep. 
 Q. B. 511; nor a letter which is intended to be used 
 by the party writing it ; the words protect both 
 parties from its use, but if the writer declare that 
 he will use it, from that moment it loses its privi- 
 leged character; 29 U. C. Q. B. 136. Such communi- 
 cations, when the negotiation is successful and a 
 compromise is agreed to, are admissible both for the 
 purpose of showing the terms of the compromise and 
 enforcing it ; 6 Ont. 719 ; and also in order to ac- 
 count for lapse of time; 15 Beav. 388; L. R. 23 Q. 
 B. Div. 38. But whether verbal or written, such 
 communications cannot be regarded for the purpose 
 of determining the question of costs ; 58 L. J. Rep. 
 Q. B. 501. In this well considered case, the English 
 court of appeal established the rule contrary to 
 what had been in some previous cases thought prop- 
 er. See 2 Dr. & Sm. 29; 1 Jur. N. S. 899. 
 
 As to a compromise on a mistaken inter- 
 pretation of a will, see [1905] 1 Ch. 704. 
 
 See Accobd and Satisfaction. 
 
 In Civil Law. An agreement between two 
 or more persons, who, wishing to settle their 
 disputes, refer the matter in controversy to 
 arbitrators, who are so called because those 
 who choose them give them full powers to ar- 
 bitrate and decide what shall appear just 
 and reasonable, to put an end to the differ- 
 ences of which they are made the judges. 
 1 Domat, Lois, Civ. liv. 1, t. 14. 
 
 COMPTE ARRET E (Fr.). An account stat- 
 ed in writing and acknowledged to be cor- 
 rect on its face by the party against whom it
 
 COMPTE ARRETS 
 
 577 
 
 COMPURGATOR 
 
 is stated. Chevalier v. Hyanis, 9 La. Ann. 
 485. 
 
 COMPTROLLER. An officer of a state, or 
 of the United States, who has certain duties 
 to perform in the regulation and manage- 
 ment of the fiscal matters of the government 
 under which he holds office. 
 
 In the treasury department of the United States 
 there is an officer known as the comptroller of the 
 treasury. R. S. § 268 ct seq. He Is charged with 
 the duty of revising accounts, upon appeal from the 
 settlements made by the auditors. Upon th« request 
 of a disbursing officer, or the head of a 
 he is required to give his decision upon the valid- 
 ity of a payment to be made; to approve, disap- 
 prove, or modify all decisions made by the auditors 
 making an original construction, or modifying an 
 existing construction of statutes, and to certify his 
 action to the auditor. The forms of keeping and 
 rendering all public accounts (except those relating 
 to the postal service), the recovery of debts certified 
 by the auditors to be due to the United States, and 
 the preservation, with their vouchers and certifi- 
 cates, of accounts finally adjusted, are under his 
 direction. 
 
 COMPTROLLER OF THE CURRENCY. 
 
 An officer of the United States Treasury De- 
 partment. R. S. § 324 ct seq. He lias super- 
 vision over the creation of national banks 
 and their operations, with a visitatorial pow- 
 er ; he may appoint receivers for them if he 
 deems them insolvent. 
 
 COMPULSION. Forcible inducement to 
 the commission of an act 
 
 Acts done under compulsion are not, 'in 
 general, binding upon a party ; but when a 
 man is compelled by lawful authority to do 
 that which he ought to do, that compulsion 
 does not affect the validity of the act ; as, 
 for example, when a court of competent ju- 
 risdiction compels a party to execute a deed, 
 under the pain of attachment for contempt, 
 the grantor cannot object to it on the ground 
 of compulsion. But if the court compelled a 
 party to do an act forbidden by law, or had 
 not jurisdiction over the parties or the sub- 
 ject-matter, the act done by such compulsion" 
 would be void. See Coercion; Duress. 
 
 COMPULSORY NON-SUIT. 
 
 Suit. 
 
 See Non- 
 
 COMPULSORY PILOTAGE. See Phot. 
 
 COMPULSORY SCHOOL ATTENDANCE 
 ACTS. Such acts are not unconstitutional as 
 an invasion of the natural right of the par- 
 ents to control their children; State v. Bail- 
 ey, 157 Ind. 324, 01 N. E. 730, 59 L. K. A. 
 • 435; State v. Jackson, 71 N. H. 552, 53 Atl. 
 1021, 60 L. R. A. 739. They do not include 
 occasions of temporary absence; State v. 
 Jackson, 71 N. II. 552, 53 Atl. 1021, 60 L. R. 
 A. 739. 
 
 In Washington the act provides that any 
 parent may be summoned before a superior 
 judge to show cause why his child should 
 not be kept in school, and for want of cause 
 may be found guilty of a misdemeanor and 
 fined. See State v. Macdonald, 25 Wash. 
 122, 64 Pac. 912. 
 
 Bouv.— 37 
 
 COMPURGATOR. One of several neigh- 
 bors of a person accused of a crime or charg- 
 ed as a defendant in a civil action, who ap- 
 peared and swore that they believed him on 
 his oath. 3 Bla. Com. 341. 
 
 Formerly, when a person was accused of a crime, 
 or sued in some kinds of civil actions, he might 
 purge himself upon oath of the accusation 
 against him, whenever the proof was not the most 
 clear and positive; and if upon his oath he di 
 himself innocent, he was absolved. 
 
 This usage, so eminently calculated to encourage 
 perjury by impunity, was soon found to be d 
 ous to the public safety. To remove this evil, the 
 laws were changed, by requiring that the oath 
 should be administered with the j--: amity; 
 
 but the form was soon disrey 
 
 came easily familiarized to those ceremonies which 
 at first imposed on the imagination, and 
 cared not to violate the truth did not 1: 
 to treat the form with contempt. In ord 
 give a greater weight to the oath of the ai 
 the law was again altered so a9 to require that the 
 accused should appear before the judge with 
 tain number of his neighbors, who were freeholders 
 of the hundred, who should swear that they 1 ■ 
 the accused had sworn truly. This new species of 
 witnesses were called compurgators. If it \ 
 his first offence or If his compurgators did not agree 
 to make the oath,, he was put to the ordeal (q. v.). 
 The origin of the system lies back in the hist 
 the Teuton race. It is said still to survive In the 
 practice of the criminal courts by which an accused 
 person is allowed to call witnesses as to his char- 
 acter, as a defence, while the prosecution Is not al- 
 lowed to traverse their testimony. Inderwick, The 
 King's Peace. See Wager of Law. 
 
 The number of compurgators varied according to 
 the nature of the charge and and other circum- 
 stances, and the rank of the party— formerly, from 
 two to five; later the practice was twelve. See 2 
 Holdsw. Hist. E. L. See Du Cange, Juramcntum ; 
 Spelman, Gloss. Assart A .'e la Ley; 3 Bla. 
 
 Com. 341-31S. The last reported case Is 2 B. & C. 
 53S; see 2 Poll. & Maitl. 600. 
 
 COMPUTUS (Lat. computare, to account). 
 A writ to compel a guardian, bailiff, r< 
 
 er, or accountant, to yield up his accounts. 
 It is founded on the stat. Westm. 2, cap. 12; 
 Reg. Orig. 135. 
 
 CONCEAL. To withhold or keep secret 
 mental facts from another's knowledge, as 
 well as to hide or secrete physical objects 
 from sight or observation. Gerry v. Dun- 
 ham, 57 Me. 339. 
 
 CONCEALED WEAPONS. 
 
 ous Weapons. 
 
 See DanQEB- 
 
 CONCEALERS. Such as find out t> 
 ed lands: that is. lands privily kept from 
 the king by common persons having nothing 
 to show for them. They are railed "a trou- 
 blesome, dixturhant sort of nun; turbulent 
 persona." CowelL 
 
 CONCEALMENT. The improper suppres- 
 sion of any fact or circumstance by one of 
 the parties to a contract from the other, 
 which in justice ought to be known. 
 
 The omission by an applicant for insur- 
 ance preliminarily to stale facts known to 
 him, or which be is bound to know, material 
 to the risk proposed to be insured against, 
 or omission to state truly the facts expressly 
 inquired about by the underwriters to whom
 
 CONCEALMENT 
 
 578 
 
 CONCESSI 
 
 application for insurance is made, whether 
 the same are or are not material to the risk. 
 
 Concealment, when fraudulent, avoids a 
 contract, or renders the party using it liable 
 for the damage arising in consequence there- 
 of ; Kidney v. Stoddard, 7 Mete. (Mass.) 252 ; 
 Prentiss v. Russ, 16 Me. 30; Jackson v. Wil- 
 cox, 1 Scam. (111.) 344; 3 B. & C. 605; Dan- 
 iels v. Ins. Co., 12 Cush. (Mass.) 416, 59 Am. 
 Dec. 192. But it must have been of such 
 facts as the party is bound to communicate ; 
 Webb, Poll. Torts 36S; 3 E. L. & Eq. 17; 
 Otis v. Raymond, 3 Conn. 413 ; Van Arsdale 
 & Co. v. Howard, 5 Ala. 596; Kintzing v. 
 McElrath, 5 Fa. 467 ; Stevens v. Fuller, 8 N. 
 H. 463; Hamrick v. Hogg, 12 N. C. 351; 
 Fleming v. Slocum, IS Johns. (N. Y.) 403, 9 
 Am. Dec. 224 ; George v. Johnson, 6 Humphr. 
 (Tenn.) 36, 44 Am. Dec. 288. A concealment 
 of extrinsic facts is not, in general, fraudu- 
 lent, although peculiarly within the knowl- 
 edge of the party possessing them ; Laidlaw 
 v. Organ, 2 Wheat. (U. S.) 195, 4 L. Ed. 214 ; 
 Blydenburgh v. Welsh, Baldw. 331, Fed. Cas. 
 No. 1,583 ; Bench v. Sheldon, 14 Barb. (N. T.) 
 72 ; Burnett v. Stanton, 2 Ala. 181. But see 
 Frazer v. Gervais, Walk. (Miss.) 72; Baker v. 
 Seaborn, 1 Swan (Tenn.) 54, 55 Am. Dec. 724 ; 
 Hough v. Evans, 4 McCord (S. C.) 169. And 
 the rule against the concealment of latent 
 defects is stricter in the case of personal 
 than of real property ; Mason v. Crosby, 1 
 Woodb. & M. 342, Fed. Cas. No. 9,234; 3 
 Campb. 508; 3 Term 759. 
 
 A failure to state facts known to an in- 
 surer or his agent, or which he ought to 
 know, or which lessen the risk, for that only 
 is material which tends to increase the risk, 
 in the absence of express stipulation, and 
 where no inquiry is made, is no concealment ; 
 May, Ins. § 207 ; Lexington Fire, Life & Ma- 
 rine Ins. Co. v. Paver, 16 Ohio 334. . 
 
 Where there is confidence reposed, conceal- 
 ment becomes more fraudulent ; 9 B. & C. 
 577. 
 
 See, generally, 2 Kent 4S2; Deceit; Mis- 
 representation; Representation. 
 
 CONCERT OF EUROPE. The union be- 
 tween the chief powers of Europe for pur- 
 poses of concerted action in matters affecting 
 their mutual interests. It is sometimes call- 
 ed the Primacy of the Great Powers. It has 
 existed under various forms from the time 
 of the Congress of 'Vienna, in 1815. The 
 most important action of the Concert of 
 Europe within recent years was that taken 
 at Berlin in 1S78, when the status of the 
 European provinces of Turkey was determin- 
 ed, and again in 1SS5, when the general act 
 of the Congo Conference laid down rules de- 
 termining the status of the newly acquired 
 colonies in Africa. 
 
 CONCESSI (Lat. I have granted). A term 
 formerly used in deeds. 
 
 It is a word of general extent, and is said 
 to amount to a grant, feoffment, lease, re- 
 
 lease, and the like; 2 Saund. 96; Co. Litt. 
 301 ; Dane, Abr. Index ; Hemphill v. Eck- 
 feldt, 5 Whart. (Pa.) 278. 
 
 It has been held in a feoffment or fine to 
 imply no warranty ; Co. Litt. 384 ; 4 Co. 80 ; 
 Vaughan's Argument in Vaughan 126; But- 
 ler's note, Co. Litt 384. But see 1 Freem. 
 339, 414. 
 
 CONCESSIMUS (Lat. we have granted). 
 A term used in conveyances. It created a 
 joint covenant on the part of the grantors. 
 5 Co. 16; Bacon, Abr. Covenant. 
 
 CONCESSION. A grant. The word is 
 frequently used in this sense when applied 
 to grants made by the French and Spanish 
 governments in Louisiana. 
 
 C0NCESS0R. A grantor. 
 
 CONCILIUM. A council. 
 
 In Roman Law. A meeting of a section of 
 the people to consider and decide mattera 
 especially affecting itself. Launspach, State 
 and Family in Early Rome 70. 
 
 CONCILIUM REGIS. See Cueia Regis; 
 Privy Council; Commune Concilium. 
 
 CONCLUSION. The close; the end. 
 
 In Pleading. In Declarations. That part 
 which follows the statement of the cause of 
 action. In personal or mixed actions, where 
 the object is to recover damages, the conclu- 
 sion is, properly, to the damage of the plain- 
 tiff, etc. Com. Dig. Pleader, c. 84; 10 Co. 
 1156. A*nd see 1 M. & S. 236 ; Damages. 
 
 The form was anciently, in the King's 
 Bench, "To the damage of the said A B, and 
 thereupon he brings suit ;" in the Exchequer, 
 "To the damage," etc., "whereby he is the 
 less able to satisfy our said lord the king 
 the debts which he owes his said majesty at 
 his exchequer, and therefore he brings his 
 suit ;" 1 Chit. PI. 356. It is said to be mere 
 matter of form, and not demurrable; Pier- 
 son v. Wallace, 7 Ark. 282. 
 
 In Pleas. The conclusion is either to the 
 country — which must be the case when ah 
 issue is tendered, that is, whenever the plain- 
 tiff's material statements are contradicted — 
 or by verification, which must be the case 
 when new matter is introduced. See Veri- 
 fication. Every plea in bar, it is said, must 
 bave its proper conclusion. All the formal 
 parts of pleadings have been much modified 
 by statute in the various states and in Eng- 
 land. 
 
 In Practice. Making the last argument or 
 address to the court or jury. The party on 
 whom the burden of proof rests, in general, 
 has the conclusion. See Opening and Clos- 
 ing. 
 
 In Remedies. An estoppel; a bar; the act 
 of a man by which he has confessed a mat- 
 ter or thing which he can no longer deny. 
 
 For example, the sheriff is concluded by his re- 
 turn to a writ; and, therefore, if upon a capias 
 he return cepi corpus, he cannot afterwards show 
 that he did not arrest the defendant, but is con-
 
 CONCLUSION 
 
 579 
 
 CONCUBINAGE 
 
 eluded by his return. See Plowd. 276 6; 8 Thomas, 
 Co. LJtt. 600. 
 
 CONCLUSION TO THE COUNTRY. In 
 Pleading. The tender of an issue for trial 
 by a jury. 
 
 When an issue is tendered by the defendant, it 
 is as follows: "And of this the said C D puts him- 
 self upon the country." When tendered by the 
 plaintili, the formula is, "And this the said A B 
 prays may be inquired of by the country." It is 
 held, however, that there Is no material difference 
 between these two modes of expression, and that if 
 the one be substituted for the other the mistake is 
 unimportant ; 10 Mod. 166. 
 
 When there is an affirmative on one side 
 and a negative on the other, or vice versa, 
 the conclusion should be to the country; 2 
 Saund. 189; Gazley v. Trice, 16 Johns. (N. Y.) 
 267. So it is though the affirmative and 
 negative be not in express words, but only 
 tantamount thereto ; Co. Litt. 126 o; 1 Saund. 
 103 ; 1 Chit. PI. 092 ; Com. Dig. Pleader, E, 
 32. 
 
 CONCLUSIVE EVIDENCE. That which 
 cannot be controlled or contradicted by any 
 other evid< 
 
 Evidence which of itself, whether contra- 
 dicted or uncontradicted, explained or unex- 
 plained, is sufficient to determine the matter 
 at issue. 6 Lond. L. Mag. 373. 
 
 Evidence upon the production of which the 
 judgment is bound by law to regard some 
 fact as proved, and to exclude evidence to 
 exclude it. Steph. Dig. Ev. 
 
 CONCLUSIVE PRESUMPTION. A rule of 
 law determining the quantity of evidence 
 requisite for the support of a particular aver- 
 ment which is not permitted to be overcome 
 by any proof that the fact is otherwise. 1 
 Greenl. Ev. § 15. Thus, for example, the pos- 
 session of land under claim of title for a cer- 
 tain period of time raises a conclusive pre- 
 sumption of a grant. See Presumption. 
 
 In the civil law, such presumptions are 
 said to be juris et de jure. 
 
 CONCORD. An agreement or supposed 
 agreement between the parties in levying a 
 fine of lauds in which the deforciant (or he 
 who keeps the other out of possession) ac- 
 knowledges that the lands in question are 
 the right of complainant; and from the ad- 
 mission of right thus made, the party who 
 levies the fine is called the cognizor, and the 
 person to whom it is levied, the cognizee. 2 
 Bla. Com. 350; Cruise, Dig. tit 35, c. 2, § 
 33; Com. Dig. Fine (E, 9). 
 
 CONCORDAT. A convention ; a pact; an 
 agreement. The term is generally confined 
 to the agreements made between independent 
 governments, and most usually applied to 
 those between the pope and some prince. 
 
 In French Law. A composition. The 
 French Concordat was repealed in 1906. 
 
 C0NCUBEANT. Lying together. Whar- 
 ton. 
 
 CONCUBINAGE. A species of marriage 
 which took place among the 
 
 The act or practice of ci in sexual 
 
 commerce, without the authority of law or 
 a legal marriage. See 1 Brown, Civ. Law 
 80; Merlin, Rip.; Dig. 32. 49. 4; 7. 1. 1 ; 
 Code, 5. 27. 12. 
 
 "Concubinage is the act upon the part of 
 the woman of cohabiting with a man without 
 ceremonial marriage, or consent and i 
 good at common law." U. S. v. Bitty, !•"■" 
 Fed '.»::8. See a definition in Bald- 
 
 win, 214 Mo. 290, 113 S. \V. 1123. 
 
 Living together and having sexual rela- 
 tions as husband and wife; State v. Tucker. 
 7-J Kan, 481, 84 Pac. IL'C The words con- 
 cubinage and prostitution have no co 
 law meaning, but in their popular sense 
 all cases of lewd intercourse; People v. Cum- 
 mons, 56 Mich. 544, 23 N. W. 215. See Ab- 
 duction ; Prostitution ; Procuration. 
 
 CONCUBINATUS. A sort of unequal mar 
 riage which existed under Roman law be- 
 tween a man of superior rank and a woman 
 of inferior rank. It did not raise the wife 
 to the husband's Level; the children were not 
 Legitimate, but they could require their father 
 to support them, and, in Justinian's time, 
 had a qualified right of intestate sun 
 to him. They followed their mother's con- 
 dition and could inherit from her. A man 
 could not have more than one concubine at a 
 time. It was abolished by the Emperor Leo 
 the Philosopher in A. D. 8S7. Bryce, Studies 
 in Hist., etc. See Marriage. 
 
 CONCUBINE. A woman who cohabits 
 with a man as his wife, without being mar- 
 ried. 
 
 CONCUR. In Louisiana. To claim a part 
 of the estate of an insolvent along with other 
 claimants. Thompson v. Chauveau, 6 Mart. 
 N. S. (La.) 460; 'as, "the wife concurs with 
 her husband's creditors, and claims a privi- 
 lege over them." 
 
 CONCURRENCE. In French Law. The 
 equality of rights or privileges which several 
 persons have over the same thing; as. for 
 example, the right which two judgment -cred- 
 itors, whose judgments were rendered at the 
 same time, have to be paid out of the pro- 
 ceeds of real estate bound by them. Diet, tic 
 Jur. 
 
 CONCURRENT. Punning together; hav- 
 ing the same authority ; thus, we say. 
 current consideration occurs in the ca I 
 mutual promises; such and such courts have 
 concurrent jurisdiction, — that is, each has 
 the same jurisdiction. 
 
 Concurrent n-rits. Duplicate originals, or 
 several writs running at the same time for 
 the same purpose, for service on or arrest of 
 a person, when it is not known where he is 
 to be found; or for service on several per- 
 sons, as when there are several defendants 
 to an action. Mozley & W. DicL
 
 CONCURSUS 
 
 580 
 
 CONDEMNATION 
 
 CONCURSUS. A proceeding in Louisiana 
 similar to interpleader. See Louisiana Mo- 
 lasses Co. v. Le Sassier, 52 La. Ann. 2070, 28 
 South. 217. 
 
 CONCUSSION. In Civil Law. The unlaw- 
 ful forcing of another by threats of violence 
 to give something of value. It differs from 
 robbery in this, that in robbery the thing is 
 taken by force, while in concussion it is ob- 
 tained by threatened violence. Heineccius, 
 Lee. El. § 1071. 
 
 CONDEMN. To sentence ; to adjudge. 3 
 Bla. Com. 291. 
 
 To declare a vessel a prize. To declare a 
 vessel unfit for service. 1 Kent 102 ; 5 Esp. 
 65. 
 
 CONDEMNATION. The sentence of a 
 competent tribunal which declares a ship 
 unfit for service. This sentence may be re- 
 examined and litigated by the parties inter- 
 ested* in disputing it ; 5 Esp. 65; Abb. Sh. 15 ; 
 30 L J. Ad. 145. 
 
 The judgment, sentence, or decree by which 
 property seized and subject to forfeiture for 
 an infraction of revenue, navigation, or other 
 laws is condemned or forfeited to the gov- 
 ernment. See Captob. 
 
 In International Law. The sentence or 
 judgment of a court of competent jurisdic- 
 tion that a ship or vessel taken as a prize 
 on the high seas was liable to capture, and 
 was properly and legally captured and held 
 as prize. 
 
 Some of the grounds of capture and con- 
 demnation are: violation of neutrality in 
 time of war; The Commercen, 2 Gall. 261, 
 Fed. Cas. No. 3,055 ; carrying contraband 
 goods; The Springbok, 5 Wall. (U. S.) 1, 18 
 L. Ed. 480; The Peterhoff, 5 Wall. (U. S.) 
 28, 18 L. Ed. 564; The Bermuda, 3 Wall. (U. 
 S.) 514, 18 L. Ed. 200; breach of blockade; 
 The Plymouth, 3 Wall. (U. S.) 28, 18 L Ed. 
 125; The Louisiana, 3 Wall. (U. S.) 170, 18 
 L. Ed. 85; The Admiral, 3 Walk (U. S.) 603, 
 18 L. Ed. 58. 
 
 By the general practice of the law of 
 nations, a sentence of condemnation is at 
 present generally deemed necessary in order 
 to divest the title of a vessel taken as a 
 prize. Until this has been done, the orig- 
 inal owner may regain his property, al- 
 though the ship may have been in posses- 
 sion of the enemy twenty-four hours, or car- 
 ried infra prwsidia; Hall, Int. L. ; The Es- 
 trella, 4 Wheat. (U. S.) 298, 4 L. Ed. 574. A 
 sentence of condemnation is generally bind- 
 ing everywhere ; Gelston v. Iloyt, 3 Wheat. 
 (U. S.) 246, 4 L. Ed. 381; Croudson v. Leon- 
 ard, 4 Cra. (U. S.) 434, 2 L. Ed. 670. Title 
 vests completely in the captors, and relates 
 back to the time of capture ; 2 Buss. & M. 
 35 ; 15 Ves. 139. 
 
 Confiscation (</. v.), in technical if not in 
 general usage, is the act of the sovereign 
 against a rebellious subject; condemnation 
 
 as prize is the act of a belligerent against 
 another belligerent. The former may be 
 effected by such means as the sovereign 
 through legal channels may please to adopt; 
 the latter can be made only in accordance 
 with principles recognized in the common 
 jurisprudence of the world. Both are in 
 rein; but confiscation recognizes the title of 
 the original owner, while in prize the tenure 
 of the property is qualified, provisional and 
 destitute of absolute ownership ; Winchester 
 v. U. S., 14 Ct. Cls. 14. 
 
 The condemnation of prize property while 
 lying in a neutral port or the port of an ally 
 is valid; Jecker v. Montgomery* 13 How. (U. 
 S.) 498, 14 L. Ed. 240; 4 C. Rob. 43. 
 
 By Art. 3 of the Convention Relative to the 
 Establishment of an International Prize 
 Court (q. v.) the judgments of national prize 
 courts condemning neutral ships or cargoes, 
 or enemy cargoes on board neutral ships, may 
 be reviewed by the International Prize Court. 
 
 The word is in general use in connection 
 with the taking of land under the right of 
 eminent domain, q. v. The condemnation 
 of lands is but a purchase of them in in- 
 vitum, and the title acquired is but a quit 
 claim ; Lake Merced Water Co. v. Cowles, 31 
 Cal. 215. 
 
 In Civil Law. A sentence or judgment 
 which condemns some one to do, to give, 
 or to pay something, or which declares that 
 his claim or pretensions are unfounded. 
 
 The word Is used in this sense by common-law 
 lawyers also ; though it is more usual to say con- 
 viction, both in civil and criminal eases; 3 Bla. 
 Com. 291. It is a maxim that no man ought to be 
 condemned unheard and without the opportunity of 
 being heard. 
 
 CONDICTIO (Lat. from condicere). 
 
 In Civil Law. A summons. 
 
 A personal action. An action arising from 
 an obligation to do or give some certain, pre- 
 cise, and defined thing. Inst. 3. 15. pr. 
 
 Condictio is a general name given to personal 
 actions, or actions arising from obligations, and is 
 distinguished from vindicatio (real action), an ac- 
 tion to regain possession of a thing belonging to the 
 actor, and from actiones mixtce (mixed actions). 
 Condictio is also distinguished from an action ex 
 stipulatu, which is a personal action which lies 
 where the thing to be done or given is uncertain in 
 amount or identity. See Calvinus, Lex.; Halifax, 
 Anal. 117. 
 
 CONDICTIO EX LEGE. An action aris- 
 ing where the law gave a remedy but provid- 
 ed no appropriate form of action. Calvinus, 
 Lex. 
 
 CONDICTIO INDEBITATI. An action 
 which lies to recover that which the plain- 
 tiff has paid to the defendant, by mistake, 
 and which he was not bound to pay, either 
 in fact or in law. 
 
 This action does not lie if the money was due ex 
 asquitate, or by a natural obligation, or if he who 
 made the payment knew that nothing was due; foi 
 qui consulto dat quod non debetat prcesumitur do 
 nare; Bell, Diet.; Calvinus, Lex.; 1 Karnes, Eq 
 301.
 
 CONDICTIO REI FURTIVE 
 
 581 
 
 CONDITION 
 
 CONDICTIO REI FURTIV/E. An action 
 against the thief or his heir to recover the 
 thing stolen. 
 
 CONDICTIO SINE CAUSA. An action by 
 which anything which has been parted with 
 without consideration may be recovered. It 
 also lay in case of failure of consideration, 
 under certain circumstances. Calvinus, Lex. 
 
 CONDIDIT, COMMON. The name of a 
 plea entered by a party to a libel in the Ec- 
 clesiastical Court. The administrators "for- 
 mally propounded the will, in a plea known 
 as common condidit from its merely pleading 
 the deceased to have made the will, being of 
 sound mind, etc., in set term — in common use 
 . . . in this description of cases"; 3 Ad- 
 dams Keel. 79 (2 Engl. Eccl. Ilepts., Phila. 
 Reprint 438) ; also used In 1 Curteis Eccl. 
 707 (0 EngL EccL Rep. 431). 
 
 CONDITION. In Civil Law. The situation 
 of every person in some one of the di 
 orders of persons which compose the g< 
 order of society and allot to each person 
 therein a distinct, separate rank. Domat, 
 torn. ii. 1. 1, tit. 9, sec. i. art. viii. 
 
 A paction or agreement which regulates 
 that which the contractors have a mind 
 should be done if a case which they foresee 
 should come to pass. Domat, torn. i. 1. 1, tit. 
 1, sec. 4. 
 
 Casual conditions are such as depend upon 
 accident, and are in no wise in the power 
 of the person in whose favor the obligation is 
 entered into. 
 
 Mixed conditions are such as depend upon 
 the joint wills of the person in whose favor 
 the ol ligation is contracted and of a third 
 person : as "If you marry my cousin, I will 
 give," etc. Pothier. 
 
 Potestative conditions are those which are 
 in the power of the person in whose favor 
 the obligation was contracted: as, If I con- 
 tract to give my neighbor a sum of money 
 in case he cuts down a tree. 
 
 Resolutory conditions are those which are 
 added not to suspend the obligation till their 
 accomplishment, but to make it cease when 
 they are accomplished. 
 
 Suspensive obligations are those which sus- 
 pend the obligation until the performance 
 of the condition. They are casual, mixed, 
 or potestative. 
 
 Domat says conditions are of three sorts. 
 The first tend to accomplish the covenants 
 to which they are annexed. The second dis- 
 solve covenants. The third neither accom- 
 plish nor avoid, but create some change. 
 When a condition of the first sort comes to 
 pass, the covenant is thereby made effectual. 
 In case of conditions of the second sort, all 
 things remain in the condition they were in 
 by the covenant, and the effect of the condi- 
 tion is in suspense until the condition comes 
 to pass and the covenant is void. Domat, lib. 
 1. tit. 1, § 4, an. 6. See Pothier, ObL. pt, i. 
 c. 2, art. 1, § 1; pt. 1L c. 3, art. 2. 
 
 In Common Law. The status or relative 
 situation of a person in the state arising 
 from the regulations of BOdety. Thus, a per- 
 son under twenty-one is an infant, with cer- 
 tain privileges and disabiliti' 
 son is bound to know the .■ edition of the 
 person with whom he deals, 
 
 A qualification, restriction, or limitation 
 modifying or destroying the original act with 
 which it is connected. 
 
 A clause in a contract or agreement which 
 has for its object to suspend, rescind, or 
 modify the principal obligation, or, in a 
 of a will, to suspend, revoke, or modify the 
 devise or bequest. 
 
 A modus or quality annexed by him that 
 hath an estate, or interest or right to the 
 same, whereby an estate, etc., may either be 
 defeated, enlarged, or created upon an un- 
 certain event Co. Litt. 201 a. 
 
 A qualification or restriction annexed to 
 a conveyance of lands, whereby it is pro- 
 sided that in case a particular event does 
 or does not happen, or in case the grantor 
 intee does or omits to do a particular 
 act, an estate shall commence, be enlarged, 
 or be defeated. Greenl. Cruise, Dig. tit. xiii. 
 c. i. § 1. 
 
 A future uncertain event on the happen- 
 ing or the non-happening of which the ac- 
 complishment, modification, or rescission of 
 a testamentary disposition is made to de- 
 pend. 
 
 A condition annexed to a bond is usually termed 
 a defeasance, which see. A condition defeating a 
 conveyance of land in a certain event is generally a 
 mortgage. See Mortgage. Conditions ann< 
 the realty are to be distinguished from limitation*; 
 a stranger may take advantage of a Itm 
 only the grantor or his heirs of a condition ; I 
 R. Co., 26 N. J. L. 1; Vermont v. Society, 2 Paine 
 545, Fed. Caa. No. 16,920 ; a limitation always de- 
 termines an estate 'without entry or claim, and so 
 doth not a condition; Shcppard, Touchst 121; 2 
 Bla. Com. 155; 4 Kent 122, 127 ; Proprietors of the 
 Church in Brattle Square v. Grant, 3 Gray (Mass.) 
 142, 63 Am. Dec. 725 ; Van Rensselaer v. Ball, 19 
 N. Y. 100; from conditional limitations; In case of 
 a condition, the entire iuterest in the estate does 
 not pass from the grantor, but a possibility of re- 
 verter remains to him and to his heirs and devisees; 
 in case of a conditional limitation, the possibility of 
 reverter Is given over to a third person ; Chal. R. 
 P. 233; Proprietors of the Church in Brattle Square 
 v. Grant, 3 Gray (Mass.) 142, 63 Am. Dec. 725; from 
 remainders ; a conditon operates to defeat an estate 
 before its natural termination, a remainder takes 
 effect on the completion of a preceding estate; Co. 
 Litt. Butler's note 94; from covenants; a cove- 
 nant may b said to be a contract, a condition, 
 something affixed nomine pcenoe for the non-fulfil- 
 ment of a contract ; the question often d 
 upou the apparent intention of the parties, rather 
 than upon fixed rules of construction; if the clause 
 in question goes to the whole of the consideration. 
 It is rather to be held a condition ; 2 Parsons Contr. 
 31: Piatt, Cov. 71; 10 East 295; see Woo.'. 
 Power Co., 10 N. J. Eq. 489 ; McCuIlough v. Cox, 
 6 Barb. (N. Y.) 386 ; Houston v. Spruance, 4 Harr. 
 (Del.) 117; a covenant may be made by a grantee, 
 a condition by the grantor only; 2 Co. 70; from 
 charges; If a testator create a charge upon the 
 • personally in respect of the estate devised, 
 the devisee takes the estate on condition, but where 
 a devise is made of an estate and also a bequest 
 of so much to another person, payable "thereout"
 
 CONDITION 
 
 582 
 
 CONDITION 
 
 or "therefrom" or "from the estate," it Is rather 
 to be held a charge ; 4 Kent C04 ; Potter v. Gardner, 
 12 Wheat. (U. S.) 498, 6 L. Ed. 706 ; Taft v. Morse, 
 4 Mete. (Mass.) 523; Harvey v. Olmsted, 1 N. Y. 
 483 ; 14 M. & W. C98. Where a forfeiture Is not 
 distinctly expressed or implied, it is held a charge ; 
 Luckett v. White, 10 Gill & J. (Md.) 4S0 ; Pownal 
 v. Taylor, 10 Leigh (Va.) 172, 34 Am. Dec. 725. See, 
 also, Wilson v. Wilson, 38 Me. 1, 61 Am. Dec. 227; 
 1 Pow. Dev. 664 ; Charge ; Legacy. 
 
 Affirmative conditions are positive condi- 
 tions. 
 
 Affirmative conditions implying a negative 
 are spoken of by the older writers : but no 
 such class is now recognized. Shep. Touchst. 
 117. 
 
 Collateral conditions are those which re- 
 quire the doing of a collateral act. Shep. 
 Touchst. 117. 
 
 Compulsory conditions are such as express- 
 ly require a thing to be done. 
 
 Consistent conditions are those which 
 agree with the other parts of the transaction. 
 
 Copulative conditions are those which are 
 composed of distinct parts or separate con- 
 ditions, all of which must be performed. 
 They are generally conditions precedent, but 
 may be subsequent. Pow. Dev. c. 15. 
 
 Covert conditions are implied conditions. 
 
 Conditions in deed are express conditions. 
 
 Disjunctive conditions are those which re- 
 quire the doing of one of several things. If 
 a condition become impossible in the copula- 
 tive, it may be taken in the disjunctive. 
 Yiner, Abr. Condition (S b) (Y b 2). 
 
 Express conditions are those which are 
 created by express words. Co. Litt. 328. 
 
 Implied conditions are those which the law 
 supposes the parties to have had in mind at 
 the time the transaction was entered into, 
 though no condition was expressed. Shep. 
 Touchst. 117. 
 
 Impossible conditions are those which can- 
 not be performed in the course of nature. 
 
 Inherent conditions are such as are annex- 
 ed to the rent reserved out of the land 
 whereof the estate is made. Shep. Touchst. 
 118. 
 
 Insensible conditions are repugnant con- 
 ditions. 
 
 Conditions in law are implied conditions. 
 The term is also used by the old writers 
 without careful discrimination to denote lim- 
 itations, and is little used by modern writers. 
 Littleton § 380; 2 Bla. Com. 155. 
 
 Lawful conditions are those which the law 
 allows to be made. 
 
 Positive conditions are those which re- 
 quire that the event contemplated should 
 happen. 
 
 Possible conditions are those which may 
 be performed. 
 
 Precedent conditions are those which are 
 to be performed before the estate or the ob- 
 ligation commences, or the bequest takes ef- 
 fect. Powell, Dev. c. 15. A bond to convey 
 land on the payment of the purchase-money 
 furnishes a common example of a condition 
 precedent. Stone v. Ellis, 9 Cush. (Mass.) 
 
 95. They are distinguished from conditions 
 subsequent. 
 
 Repugnant conditions are those which are 
 inconsistent with, and contrary to, the orig- 
 inal act. 
 
 Restrictive conditions are such as contain 
 a restraint : as, that a lessee shall not alien. 
 Shep. Touchst. 118. 
 
 Single conditions are those which require 
 the doing of a single thing only. 
 
 Subsequent conditions are those whose ef- 
 fect is not produced until after the vesting 
 of the estate or bequest or the commence- 
 ment of the obligation. 
 
 A mortgage with a condition defeating the con- 
 veyance in a certain event is a. common example of 
 a condition subsequent. AH conditions must be 
 either precedent or subsequent. The character of 
 a condition in this respect does not depend upon 
 the precise form of words used ; Creswell's Lessee 
 v. Lawson, 7 Gill & J. (Md.) 227, 240 ; Vanhorne's 
 Lessee v. Dorrance, 2 Dall. (Pa.) 317, Fed. Cas. No. 
 16,857, 1 L. Ed. 391; In re New York Cent. R. Co., 
 20 Barb. (N. Y.) 425; Brockenbrough v. Ward's 
 Adm'r, 4 Rand. (Va.) 352; Sprigg's Heirs v. Albin's 
 Heirs, 6 J. J. Marsh. (Ky.) 161; Barry v. Alsbury, 
 Litt. Sel. Cas. (Ky.) 151 ; Shinn v. Roberts, 20 N. 
 J. L. 435, 43 Am. Dec. 636 ; Yeatman v. Broadwell, 
 1 La. Ann. 424 ; Rogan v. Walker, 1 Wis. 527 ; nor 
 upon the position of the words in the instrument; 
 
 1 Term 645; Cas. temp. Talb. 166; the question is 
 whether the conditional event is to happen before 
 or after the principal; Brockenbrough v. Ward's 
 Adm'r, 4 Rand. (Va.) 352. The word "if" implies a 
 condition precedent, however, unless controlled by 
 other words ; Crabb, R. P. § 2152. 
 
 Unlawful conditions are those which are 
 forbidden by law. 
 
 They are those which first, require the perform- 
 ance of some act which Is forbidden by law, or 
 which is malum in se ; or, second, require the omis- 
 sion of some act commanded by law ; or, third, 
 those which encourage such acts or omissions. 1 P. 
 Wms. 189. 
 
 Void conditions are those which are of no 
 validity or effect. 
 
 Creation of. Conditipns must be made 
 at the same time as the original conveyance 
 or contract, but may be by a separate instru- 
 ment, which is then considered as constitut- 
 ing one transaction with the original ; Ham- 
 ilton v. Elliott, 5 S. &' R. (Pa.) 375; Cooper 
 v. Whitney, 3 Hill (N. Y.) 95; Brown v. 
 Dean, 3 Wend. (N. Y.) 208; Perkins' Lessee 
 v. Dibble, 10 Ohio 433, 36 Am. Dec. 97; Bas- 
 sett v. Bassett, 10 N. H. 64; Blaney v. Bearce, 
 
 2 Greenl. (Me.) 132; Watkins v. Gregory, 6 
 Blackf. (Ind.) 113. Conditions are some- 
 times annexed to and depending upon es- 
 tates, and sometimes annexed to and depend- 
 ing upon recognizances, statutes, obligations, 
 and other things, and are also sometimes 
 contained in acts of parliament and records ; 
 Shep. Touchst. 117. 
 
 Unlawful conditions are void. Conditions 
 in restraint of marriage generally are held 
 void ; Poll. Contr. 334 ; Williams v. Cowden, 
 13 Mo. 211, 53 Am. Dec. 143; see Com. v. 
 Stauffer, 10 Pa. 350, 51 Am. Dec. 489; Den- 
 field, Petitioner, 156 Mass. 265, 30 N. E. 
 1018 ; Knight v. Mahoney, 152 Mass. 523, 25 
 N. E. 971, 9 L. K. A, 573; Mann v. Jackson,
 
 CONDITION 
 
 583 
 
 CONDITIO*! 
 
 84 Me. 400, 24 Atl. 8SC, 10 L. R. A. 707, 30 
 Am. St. Rep. 358; otherwise of conditions 
 restraining from marriage to a particular 
 person, or restraining a widow from a second 
 marriage; 10 E. L. & Eq. 139; 2 Sim. 255; 
 Fans v. Fans, Watts (Pa.) 213. A condi- 
 tion in general restraint of alienation is 
 void; Schermerhorn v. Xegus, 1 Don. (X. 
 Y.) 449; G East 17:*.; Totter v. Couch, 141 
 U. S. 290, 11 Sup. Ct. 1005, 35 L. Ed. 721; 
 and see Blackstone Bank v. Davis, 21 Pick. 
 (Mass.) 42, 32 Am. Dec. 211; but a condition 
 restraining alienation lor a limited time may 
 be good; Co. Litt. 212::. An unreasonabl 
 dition is also void; In re Vandevort, 62 Hun 
 012, 17 N. Y. Supp. 316; as is a condition 
 repugnant to the grant ; Hardy v. Galloway, 
 111 N. C. 519, 15 S. E. 890, 32 Am. St. Rep. 
 828. 
 
 Where land is devised, there need be no 
 limitation over to make the condition good; 
 1 Mod. 300; 1 Atk. 301. See Tilley v. King, 
 KM) X. C. 461, 13 S. E. 9HG; but wbere the 
 subject of the gift is personalty without a 
 limitation over, the condition, if subsequent, 
 is held to be in terrorem merely, and void ; 
 1 Jarm. Wills 8S7; Mcllvaine v. Gethen, 3 
 Whart. (Pa.) 575. See In re Vandevort, G2 
 Hun 612, 17 N. Y. Supp. 310. Rut if there be 
 a limitation over, a non-compliance with the 
 condition divests the bequest ; 1 Eq. Cas. 
 Abr. 112. A limitation over must be to per- 
 sons who could not take advantage of a 
 breach; Jackson v. Topping, 1 Wend. (N. 
 Y.) 3S8, 19 Am. Dec. 515; Wheeler v. Walk- 
 er, 2 Conn. 196, 7 Am. Dec. 204. A gift of 
 personalty may not be on condition subse- 
 quent at common law, except as here stated ; 
 1 Rolle, Abr. 412. See Halbert v. Halbert, 21 
 Mo. 277. 
 
 Any words suitable to indicate the inten- 
 tion of the parties may be used in the crea- 
 tion of a condition ; "On condition" is a 
 common form of commencement. 
 
 Formerly, much importance was attached to the 
 use of particular and formal words in the creation 
 of a condition. Three phrases are given by the old 
 writers by the use of which a condition was created 
 without words giving a right of re-entry. These 
 were Sub conditione (On condition), Provisa ita 
 quod (Provided always), Ita quod (So that). Little- 
 ton 331; Shep. Touchst. 125. 
 
 Amongst the words used to create a condition 
 where a clause of re-entry was added were, 
 si contingat (If it shall happen), Pro (For), Si (If), 
 Causa (On account of) ; sometimes, and in case of 
 the king's grants, but not of any other person, ad 
 faciendum or faciendo, ea intentione, ad r 
 or ad propositum. For avoiding a lease for year . 
 such precise words of condition are not r< 
 Co. Litt. 204 b. In a gift, it la said, may be i 
 a modus, a condition and a consideration: the words 
 of creation are ut for the modus, si for the condi- 
 tion, and quid for the consideration. 
 
 Technical words in a will will not create 
 a condition where it is unreasonable to sup- 
 pose that the testator intended to create a 
 technical condition; Emery v. Judge of Pro- 
 bate, 7 N. II. 142. The words of condition 
 need be in no particular place in the instru- 
 ment; 1 Term 045; 6 id. GG8. 
 
 Construction of. Conditions which go to 
 defeat an estate or destroy an act are strict- 
 ly construed; while those which go to 
 an estate are liberally construed ; Crabb, It. 
 P. § 2130; Mayor etc., of . v. Stuy- 
 vesant, 17 N. Y. 34; Inhabitants of Hadley 
 v. Mfg. Co., 4 Gray (Mass.) L40; I • ipin v. 
 School District, 35 X. II. -l 15; Wilson v. Gait, 
 18 111. 431; Perkins v. Tourniquet, 15 How. 
 (U. S.) 32.!, 14 L. Ed. 435. The condition of 
 an obligation is said to be the la. 
 the obligee, and for that rea e con- 
 strued liberally in favor of the obligor 
 Litt. 42 a, 183 a; Shep. Touchst. 375; Dy. 
 11 h. IT a; Jackson v. Brownell, 1 Join. 
 V.) 267, 3 Am. Dec. 320. But wherever an 
 obligation is imposed by a condition, the. 
 construction is to be favorable to the obli- 
 gee; Catlin v. Eire Ins. Co., 1 Sumn. 440, 
 Fed. Cas. Xo. 2,522. Conditions subsequent 
 are not favored in law but arc always strict- 
 ly construed because they tend to «1 
 estates; Poden v. R. Co., 73 la. 328, 35 X. 
 W. 424, 5 Am. St Rep. 680; and where it is 
 doubtful whether a clause in a (bed be a 
 covenant or a condition, the courts will in- 
 cline against the latter construction; W I- 
 
 ruff v. Woodruff, 44 X. J. Eq. 349, 10 Atl. 4, 
 
 1 L. R. A. 380. 
 
 Performance should be complete and ef- 
 fectual; l Rolle, Abr. 42.1. An inconsider- 
 able casual failure to perform is not non- 
 performance; Mayor, etc., of New York v. 
 Stuyvesant's Heirs, 17 X. Y. 31. Any one 
 who has an interest in the estate may per- 
 form the condition; but a stranger u'ei^ no 
 benefit from performing it; Frederick v. 
 Gray, 10 S. & R. (Pa.) 186. Conditions 
 precedent, if annexed to land, are to be 
 strictly performed, even when affecting mar- 
 riage. Conditions precedent can generally be 
 exactly performed; and, at any rate, equity 
 will not generally interfere to avoid the con- 
 sequences of non-performance; 3 Yes. Ch. S9 ; 
 
 2 Brown, Ch. 431. But in cases of condi- 
 tions subsequent, equity will interfere where 
 there was even a partial performance, or 
 where there is only a delay of performance ; 
 Crabb, R, P. § 216 • : Leach v. Leach, 4 Ind. 
 028, 58 Am. Dec. G42 ; Luques v. Thompson, 
 20 Me. 525. This is the ground of equitable 
 jurisdiction over mortgages. 
 
 Generally, where there is a gift over in 
 case of non-performance, the parties will 
 be held more strictly to a perfi iimance than 
 where the estate or gift is to revert to the 
 grantor or his heirs. 
 
 Where conditions are liberally construed, 
 a strict performance is also required; and 
 it may be said, in the same way. that a 
 non-exact performance is allowed where 
 there is a strict construction of the condi- 
 tion. 
 
 Generally, where no time of performance 
 is limited, he who has the benefit of the 
 contract may perform the condition when 
 he pleases, at any time during his life;
 
 CONDITION 
 
 584 
 
 CONDITION 
 
 Plowd. 16; Co. Litt 208 ft; and need not do 
 *t when requested; Co. Litt. 209 a. A condi- 
 tion precedent must be performed within a 
 reasonable time, when no time is fixed for 
 the performance thereof; Soderberg v. 
 Crockett, 17 Nev. 409, 30 Pac. S2G. But if a 
 prompt performance be necessary to carry 
 out the will of a testator, the beneficiary 
 shall not have a lifetime in which to perform 
 the condition; Hamilton v. Elliott, 5 S. & R. 
 (Pa.) 384. In this case, no previous demand 
 is necessary; Hamilton v. Elliott, 5 S. & R. 
 (Pa.) 3S5 ; nor is it when the continuance 
 of an estate depends upon an act to be done 
 at a fixed time; Royal v. Aultman & Taylor 
 Co., 116 Ind. 424, 19 N. E. 202, 2 L. R, A. 
 526. But even then a reasonable time is al- 
 lowed; 1 Rolle, Abr. 449. 
 
 If the place be agreed upon, neither party 
 alone can change it, but either may with 
 consent of the other ; 1 Rolle 444; Peck's 
 Adm'r v. Hubbard, 11 Vt. 612; 3 Leon. 260. 
 See Contract ; Perfoemance. 
 
 Non-performance of a condition which was 
 possible at the time of its making, but which 
 has since become impossible, is excused if 
 the impossibility is caused by act of God ; 
 Poll. Contr. 387; Merrill v. Emery, 10 Pick. 
 (Mass.) 507; or by act of law, if it was law- 
 ful at its creation ; Taylor v. Taintor, 16 
 Wall. (U. S.) 366, 21 L. Ed. 287; Kelly v. 
 Henderson, 1 Pa. 495 ; or by the act of the 
 party ; as, when the one imposing the obliga- 
 tion accepts another thing in satisfaction or 
 renders the performance impossible by his 
 own default; Bradstreet v. Clark, 21 Pick. 
 (Mass.) 389; Vermont v. Society, 1 Paine 
 652, Fed. Cas. No. 16,919; U. S. v. De la 
 Maza Arredondo, 6 Pet. 691, 8 L. Ed. 547; 
 Frets y. Frets, 1 Cow. (N. Y.) 339. If per- 
 formance of one part becomes impossible by 
 act of God, the whole will, in general, be 
 excused; 1 B. & P. 242; Cro. Eliz. 280; 5 
 Co. 21; 1 Ld. Raym. 279. 
 
 The effect of conditions may be to suspend 
 the obligation ; as, if I bind myself to con- 
 vey an estate to you on condition that you 
 first pay one thousand dollars, in which case 
 no obligation exists until the condition is 
 performed : or may be to rescind the obliga- 
 tion; as, if you agree to buy my house on 
 condition that it is standing unimpaired on 
 the tenth of May, or I convey to you my 
 farm on condition that the conveyance shall 
 be void if I pay you one thousand dollars, 
 in such cases the obligation is rescinded by 
 the non-performance of the condition: or it 
 may modify the previous obligation; as if I 
 bind myself to conrey my farm to you on 
 the payment of four thousand dollars if you 
 pay in bank stock, or of five thousand if you 
 pay in money : or, in case of gift or bequest, 
 may qualify the gift or bequest as to amount 
 or persons. 
 
 The effect of a condition precedent is, 
 when performed, to vest an estate, give rise 
 to an obligation, or enlarge an estate already 
 
 vested; Ludlow v. R. Co., 12 Barb. (N. Y.) 
 440. Unless a condition precedent be per- 
 formed, no estate will vest; and this even 
 where the performance is prevented by the 
 act of God or of the law ; Co. Litt. 42 ; 2 Bla. 
 Com. 157; 4 Kent 125; Mizell v. Burnett, 
 49 N. C. 249, 69 Am. Dec. 744; Tilley v. 
 King, 109 N. C. 461, 13 S. E. 936. Not so if 
 prevented by the party imposing it; Jones 
 v. Walker, 13 B. Monr. (Ky.) 163, 56 Am. 
 Dec. 557. 
 
 If a condition subsequent was void at its 
 creation, or becomes impossible, unlawful, or 
 in any way void, the estate or obligation re- 
 mains intact and absolute ; 2 Bla. Com. 157 ; 
 Taylor v. Sutton, 15 Ga. 103, 60 Am. Dec. 
 682. Where the condition upon which an es- 
 tate is to be divested and go to a third party 
 is founded on a contingency that can never 
 happen, the grantee will take a fee simple; 
 Munroe v. Hall, 97 N. C. 206, 1 S. E. 651. 
 
 In case of a condition broken, if the gran- 
 tor is in possession, the estate revests at 
 once ; Lincoln & Kennebeck Bank v. Drum- 
 mond, 5 Mass. 321 ; Hamilton v. Elliott, 5 
 S. & R. (Pa.) 375; Andrews v. Senter, 32 
 Me. 394; Thrall v. Spear, 63 Vt 266, 22 Atl. 
 414; Higbee v. Rodeman, 129 Ind. 244, 28 
 N. E. 442 ; Alford v. Alford, 1 Tex. Civ. App. 
 245, 21 S. W. 283. But see Willard v. Henry, 
 2 N. H. 120. But if the grantor is out of 
 possession, he must enter ; Cross v. Carson, 8 
 Blackf. (Ind.) 138, 44 Am. Dec. 742; Phelps 
 v. Chesson, 34 N. C. 194 ; Bowen v. Bowen, 
 18 Conn. 535 ; Sperry v. Sperry, 8 N. H. 477 ; 
 Inhabitants of Bangor v. Warren, 34 Me. 
 324, 56 Am. Dec. 657; 8 Exch. 67; and is 
 then in, as of his previous estate; Co. Litt. 
 Butler's note, 94. Only the grantor, his 
 heirs or devisees, can take advantage of the 
 failure to perform a condition subsequent, 
 contained in a deed; Boone v. Clark, 129 
 111. 466, 21 N. E. 850, 5 L. R. A. 276; Skip- 
 with v. Martin, 50 Ark. 141, 6 S. W. 514. 
 
 It is usually said in the older books that 
 a condition is not assignable, and that no 
 one but the grantor and his heirs can take 
 advantage of a breach ; Gilbert, Ten. 26. 
 Statutory have equal rights in this respect 
 with common-law heirs; Bowen v. Bowen, 
 18 Conn. 535 ; Marwick v. Andrews, 25 Me. 
 525 ; and in some of the states the common- 
 law rule has been broken in upon, and the 
 devisee may enter ; McKissick v. Pickle, 16 
 Pa. 150; Hayden v. Stoushton, 5 Pick. 
 (Mass.) 528; contra, Underbill v. Ry. Co., 
 20 Barb. (N. Y.) 455; while in others even 
 an assignment of the grantor's interest is 
 held valid, if made before breach ; McKis- 
 sick v. Pickle, 16 Pa. 140; and of a particu- 
 lar estate; Van Rensselaer v. Ball, 19 N. Y. 
 100. In equity, a condition with a limitation 
 over to a third person will be regarded as a 
 trust, and, though the legal rights of the 
 grantor and his heirs may not be destroyed, 
 equity will follow him and compel a per- 
 formance of the trust ; Co. Litt. 236 a ;
 
 CONDITION 
 
 :>>:> 
 
 CONDITIONS OF SALE 
 
 Downer v. Downer, 9 Watts (Pa.) 60; Wheel- 
 er v. Walker, 2 Conn. 201, 7 Am. Dec. 204. 
 Consult Blackstone; Kent, Commentaries; 
 Crabb; Washburn, Real Prop.; Leake, Pol- 
 lock, Contracts. As to effect of conditions in 
 deeds, see Conger v. Low, 124 Ind. 308, 24 
 N. E. 889, 9 L. R. A. 165. 
 
 CONDITIONAL FEE. A fee which, at 
 the common law, was restrained to some par- 
 ticular heirs, exclusive of others. 
 
 It was called a conditional fee by reason of the 
 condition, expressed or implied in the donation of 
 It, that if the donee died without such particular 
 heirs, the laud should revert to the donor. For this 
 was a condition annexed by law to all grants what- 
 soever, that, on failure of the heirs specified in the 
 grant, the grant should be at an end and the land 
 return to its ancient proprietor. 
 
 Such a gift, then, was held to be a gift upon con- 
 dition that it should revert to the donor if the 
 donee had no heirs of his body, but, if ho ; 
 should then remain to the donee. It was, therefore, 
 called a fee simple, on condition that the donee had 
 issue. As soon as the donee had issue born, bis 
 estate was supposed to become absolute, by the 
 performance of the condition, — at least so far ab- 
 solute as to enable him to charge or to alienate the 
 land, or to forfeit It for treason. But on the pass- 
 ing of the statute of Westminster II., commonly 
 called the statute De Donis Conditionalibus, the 
 judges determined that the donee had no longer a 
 conditional fee simple which became absolute and at 
 his own disposal as soon as any issue was born; 
 but they divided the estate into two parts, leaving 
 the donee a new kind of particular estate, whii h 
 they denominated a fee tail; and vesting in the 
 donor the ultimate fee simple of the land, expectant 
 on the failure of issue, which expectant estate was 
 called a reversion. And hence it is said that tenant 
 in fee tail is by virtue of the statute De Donis. 2 
 Bla. Com. 112. 
 
 A conditional fee may be granted by will 
 as well as by deed ; Corey v. Springer, 13S 
 Ind. 506, 37 N. E. 322. 
 
 CONDITIONAL LIMITATION. A condi- 
 tion followed by a limitation over to a third 
 person in case the condition be not fulfilled 
 or there be a breach of it. 
 
 A condition determines an estate after breach 
 upon entry or claim by the proper person: a limita- 
 tion marks the period which determines an estate 
 without any act on the part of him who has the 
 next expectant interest. A conditional limitation 
 is, therefore, of a mixed nature, partaking of that 
 of a condition and a limitation. Proprietors of 
 Church In Brattle Square v. Grant, 3 Gray (Mass.) 
 143, 63 Am. Dec. 725. The limitation over need not 
 be to a stranger; 2 Bla. Com. 155; Fifty Associates 
 v. Howland, 11 Mete. (Mass.) 102; Watk. Conv. 204. 
 
 See Condition; Limitation; 1 Washburn, 
 Real Prop. 459; 4 Kent 122, 127; 1 Preston, 
 Est. §§ 40, 41, 93. 
 
 CONDITIONAL SALE. See Sale; Roll- 
 ing Stock. 
 
 CONDITIONAL STIPULATION. In Civil 
 Law. A stipulation on condition. Inst. 3, 
 16, 4. 
 
 CONDITIONS OF SALE. The terms upon 
 which the vendor of property by auction pro- 
 poses to sell it. 
 
 The instrument containing these terms, 
 when reduced to writing or printing. 
 
 It is always prudent and advisable that 
 the conditions of sale should be printed and 
 
 exposed in the auction-room: when so done, 
 they are binding on both parties, and noth-- 
 ing that is said at the i !c, to add 
 
 to or vary such printed conditions, will be 
 of any avail; 12 East 6; 6 1 !0; 15 
 
 Id. 521; 1 Des. Ch. 573; Judson v. Wa 
 Johns. (N. Y.) 525, 6 Am. I 
 forms of conditions of sale in I 
 Auct. 2:;:;-24:: ; Sugden, Vend. A] . 
 
 C0ND0NACI0N. In Spanish Law. The 
 remission of a debt, either expressly or 
 
 tacitly. 
 
 CONDONATION. The conditional for- 
 ess or remission, by a husband or wife, 
 of a matrimonial offence which the other has 
 committed. 
 
 "A blotting out of an imputed offence 
 against the marital relation so as to restore 
 the offending party to the same position he 
 or she occupied before the offence was com- 
 mitted." 1 Sw. & Tr. 334. See, as to this 
 definition, 2 Bish. Mar. & Div. § 35; Odom 
 v. Odom, 36 Ga. 286; [1893] P. D. 313. 
 
 While the condition remains unbroken, 
 condonation, on whatever motive it proceed- 
 ed, is an absolute bar to the remedy for the 
 particular injury condoned; Bish. Mar. & 
 Div. § 354. 
 
 The doctrine of condonation is chiefly, 
 though not exclusively, applicable to the of- 
 fence of adultery. It may be eithei 
 i. e. signified by words or writ! mplied 
 
 from the conduct of the parlies. The latter, 
 however, is much the more common; and it 
 is in regard to that that the chief legal diffi- 
 culty has arisen. The only general rule is, 
 that any cohabitation with the guilty party. 
 after the commission of the offem e, and 
 with the knowledge or belief on 
 the injured party of its commission, will 
 amount to conclusive evidence of condona- 
 tion; but this presumption may be rebutted 
 by evidence; GO D. J. Prob. 73. The con- 
 struction, however, is mor< strict when the 
 wife than when the husband is the delin- 
 quent party; Bish. Mar. & Div. § 355 ; Miles 
 v. Miles, 101 111. App. 40<>. A. mere promise 
 to condone is not in itself a condonation; 1 
 Sw. & Tr. 183; Quarles v. Quarles, 19 Ala. 
 363; but see. contra, Christianberry v. Chris- 
 tianborry, 3 Blackf. (Ind.) 202, 25 Am. Dec. 
 96, where there was only an unaccepted in- 
 ducement held out to the wife to return. 
 Knowledge of the offence is essential; Burns 
 v. Burns. 00 Ind. 259; Turnbull v. Turnbull, 
 23 Ark. 615; Connelly v. Connelly. 98 Mo. 
 App. 05. 71 S. W. 1111. A divorce will not 
 be granted for adultery where the parties 
 continue to live together after it was known : 
 Land v. Martin. 46 La. Ann. 1246, 15 South. 
 G57; Day v. Day, 71 Kan. 385, 80 I'ac. 974, 
 G Ann. Cas. 109 ; or there is sexual inter- 
 course after knowledge of the adultery; 
 Rogers v. Rogers. 67 X. J. Eq. 534, 58 Atl. 
 S22 ; or sleeping together for a single night; 
 Toulson v. Toulson, 93 Md. 754, 50 Atl. 401 ;
 
 CONDONATION 
 
 586 
 
 CONDONATION 
 
 Todd v. Todd (N. J.) 37 Atl. 766 (the wife 
 alleging that he had intercourse with her) ; 
 contra, where for three or four nights they 
 occupied the same bed, but there was no 
 reconciliation and no sexual intercourse ; 
 Hann v. Hann, 58 N. J. Eq. 211, 42 Atl. 564 ; 
 or where they continued to cohabit but a 
 disease was communicated to the wife ; Muir 
 v. Muir, 92 S. W. 314, 28 Ky. L. Rep. 1355, 
 4 L. R. A. (N. S.) 909; or where the hus- 
 band had a venereal disease which he told 
 the wife was the result of an injury ; Wil- 
 kius v. Wilkins (N. J.) 58 Atl. 821 ; or where 
 the wife denied actual guilt, and the hus- 
 band, after belief in her innocence was no 
 longer possible, left her; Gosser v. Gosser, 
 183 Pa. 499, 38 Atl. 1014 ; or where the hus- 
 band lied to the wife as to his offence, and 
 she left him after she learned the truth; 
 Merrill v. Merrill, 41 App. Div. 347, 58 N. Y. 
 Supp. 503. 
 
 Every implied condonation is upon the im- 
 plied condition that the party forgiven will 
 abstain from the commission of the like of- 
 fence thereafter; and also treat the forgiv- 
 ing party, in all respects, with conjugal 
 kindness. Such, at least, is the better opin- 
 ion; though the latter branch of the propo- 
 sition has given rise to much discussion. 
 It is not necessary, therefore, that the sub- 
 sequent injury be of the same kind, or prov- 
 ed with the same clearness, or sufficient of 
 itself, when proved, to warrant a divorce or 
 separation. Accordingly, it seems that a 
 course of unkind and cruel treatment will 
 revive condoned adultery, though the latter 
 be a ground of divorce a vinculo matrimoni/i, 
 while the former will, at most, only author- 
 ize a separation from bed and board ; John- 
 son v. Johnson, 14 Wend. (N. Y.) 637; War- 
 ner v. Warner, 31 N. J. Eq. 225; Wagner v. 
 Wagner, 6 Mo. App. 573; Atteberry v. Atte- 
 berry, 8 Or. 224. Acts of cruelty against a 
 wife revive acts of cruelty which have been 
 condoned ; Straus v. Straus, 67 Hun 491, 22 
 N. Y. Supp. 567; Denison v. Denison, 4 
 Wash. 705, 30 Pac. 1100. 
 
 Condonation is not so strict a bar against 
 the wife as the husband ; Armstrong v. Arm- 
 strong, 32 Miss. 279; Phillips v. Phillips, 1 
 111. App. 245; 1 Hag. Ec. 773. 
 
 The presumption of condonation from co- 
 habitation in cases of cruelty is not so 
 strong as in cases of adultery ; 2 Bish. Mar. 
 & Div. § 50 et seg. A divorce on the ground 
 of cruelty will not be granted where the par- 
 ties lived together a long time after the al- 
 leged cruelty and before the action was 
 brought, as the offence will be presumed to 
 have been condoned ; O'Connor v. O'Connor, 
 109 N. C. 139, 13 S. E. S87 ; Hitchins v. Hitch- 
 ins, 140 111. 326, 29 N. E. 888; Nullmeyer v. 
 Nullmeyer, 49 111. App. 573. But not in cas- 
 es where it is overlooked for a time, but its 
 continuance makes it intolerable ; Owens v. 
 Owens, 96 Va. 191, 31 S. E. 72; Gauntt v. 
 
 Gauntt, 34 Pa. C. C. R. 100; Breedlove v. 
 Breedlove, 27 Ind. App. 560, 61 N. E. 797. 
 
 Enduring cruelty for several years in the 
 hope of better treatment will not prevent 
 a reliance upon the original cruelty ; Creyts 
 v. Creyts, 133 Mich. 4, 94 N. W. 383; Coch- 
 ran v. Cochran, 93 Minn. 284, 101 N. W. 179 ; 
 Twyman v. Twyman, 27 Mo. 383. 
 
 Where a husband's infidelity was condon- 
 ed, a remedy because of such infidelity was 
 revived by his subsequent cruelty to her; 
 Moorhouse v. Moorhouse, 90 111. App. 401 ; 
 Fisher v. Fisher, 93 Md. 298, 48 Atl. 833; 
 or by subsequent adultery ; 19 L. Q. R. 365 ; 
 or by subsequent desertion ; 29 id. 108. 
 
 Condonation of husband's cruelty is upon 
 the explicit condition that he will thereafter 
 treat her kindly. A breach of this condition 
 revives the right of suit for the original 
 misconduct; Smith v. Smith, 167 Mass. 87, 
 45 N. E. 52 ; and it is not necessary that the 
 subsequent misconduct shall be sufficient to 
 warrant divorce without regard to previous 
 cruelty if there is such frequent unkindness 
 as to warrant the belief that it will break 
 out into acts of gross cruelty ; Jefferson v. 
 Jefferson, 168 Mass. 456, 47 N. E. 123. 
 
 If condonation was based upon conditions 
 which the husband failed to perform, it was 
 ineffective; Ferguson v. Ferguson, 145* Mich. 
 290, 108 N. W. 682. It is always based upon 
 the condition of proper conduct afterwards ; 
 a breach of a condition revives the original 
 offence; Owens v. Owens, 96 Va. 191, 31 S. 
 E. 72; Mosher v. Mosher, 16 N. D. 269, 113 
 N. W. 99, 12 L. R. A. (N. S.) 820, 125 Am. 
 St. Rep. 654; [1905] P. 94. 
 
 There is no condonation in case of a con- 
 tinuing venereal disease ; Hooe v. Hooe, 122 
 Ky. 590, 92 S. W. 317, 5 L. R. A. (N. S.) 729, 
 13 Ann. Cas. 214. 
 
 CONDUCT MONEY. Money paid to. a 
 witness for his travelling expenses. Whar- 
 ton. 
 
 C0NDUCTI0 (Lat.). A hiring; a bail- 
 ment for hire. 
 
 It is the correlative of locatio, a letting for hire. 
 Conducti actio, in the civil law, is an action which 
 the hirer of a thing or his heir had against the 
 latter or his heir to be allowed to use the thing 
 hired. Conducere, to hire a thing. Conductor, a 
 hirer, a carrier; one who undertakes to perform 
 labor on another's property for a specified sum. 
 Conductus, the thing hired. Calvinus, Lex.; Du 
 Cange; 2 Kent 586. See Bailment. 
 
 CONE AND KEY. A woman at fourteen 
 or fifteen years of age may take charge of 
 her house and receive cone and key (that is, 
 keep the accounts and keys). Cowell. Said 
 by Lord Coke to be cover and keye, meaning 
 that at that age a woman knew what in her 
 house should be kept under lock and key. 
 Co. 2d Inst. 203. 
 
 C0NFECTI0 (Lat. from conficere). The 
 making and completion of a written instru- 
 ment 5 Co. 1.
 
 CONFEDERACY 
 
 5S7 
 
 EDERATE M 
 
 CONFEDERACY. In Criminal Law. An 
 agreement between two or more persons to 
 do an unlawful act or an act which though 
 not unlawful in itself, becomes so by the 
 deracy. The technical term usually 
 employed to signify this offence is conspir- 
 acy. I Crowley, 41 Wis. 284, 22 
 Am. Iiep. 7L!i; Watson v. Navigation Co., 52 
 How. l'r. (N. Y.) 353. 
 
 In Equity Pleading. An improper combina- 
 tion alleged to have been entered into be- 
 tween the defendants to a bill in equity. 
 
 A general charge of confederacy is made 
 a part of a bill in chancery, and is the fourth 
 part, in order, of the bill; but it has become 
 merely formal, except in cases where the 
 complainant intends to show that such a com- 
 bination actually exists or existed, in which 
 case a special charge of such confederacy 
 must be made. Story, Eq. PI. § 29; Mitt. Bq. 
 PI. 41. 
 
 In International Law. An agreement be- 
 tween two or more states or nations, by 
 which they unite for their mutual prote< Hon 
 and good. This term is applied to such an 
 agreement made between two independent 
 cations; but it is also used to signify the 
 union of different states of the same nation: 
 as, the confederacy of the states. 
 
 The original thirteen states, in 1781, adopted for 
 their federal government the "Articles of confeder- 
 ation and perpetual union between the states." 
 These were completed on the 15th of November, 
 1777, and, with the exception of Maryland, which 
 afterwards also agreed to them, were adopted by 
 the several states, which were thereby formed into 
 a federal government, going into effect on the first 
 day of March, 1781, 1 Story, Const. § 225, and so re- 
 mained until the adoption of the present constitu- 
 tion, which acquired the force of the supreme law 
 of the land on the first Wednesday of March, 17S9. 
 Owings v. Speed, 5 Wheat. (U. S.) 420, 5 L. Ed. 124. 
 See Articles of Confederation. 
 
 CONFEDERATE BONDS. As the bonds 
 of the Confederate States have been declared 
 illegal by the Fourteenth Amendment, a con- 
 tract entered into since the war for the sale 
 and delivery of such bonds is void, and no 
 action will lie for a breach of the contract; 
 Branch v. Haas, 16 Fed. 53. 
 
 CONFEDERATE MONEY. Contracts 
 made during the rebellion in Confederate 
 money may be enforced in the United States 
 courts, and parties compelled to pay in law- 
 ful money of the United States the actual 
 value of the notes at the time and place of 
 contract; Effinger v. Kcnney, 115 U. S. 5GG, 
 Sup. Ct. 179. 29 L. Ed. 495; and when pay- 
 ment was accepted and receipted for by the 
 creditor, it was held to be a valid payment ; 
 Glasgow v. Lipso. 117 U. S. 327, 6 Sup. Ct. 
 757, 29 L. Ed. 901. These notes were cur- 
 rency imposed upon the community by ir- 
 resistible force, and it must be considered in 
 the courts of law the same as if it had been 
 issued by a foreign government temporarily 
 occupying a part of the territory of the 
 Cnited States; Thorington v. Smith, 8 Wall. 
 
 (U. S.) 1, 19 L. I tract pay- 
 
 aide in such notes was not invalid ; Hanauer 
 v. Woodruff, 15 Wall. (U. S.) 448, 21 I 
 
 Jonfederate Nob i 
 556, 22 L. Ed. 196; Sb a, 111 
 
 r. s. 50, 4 Sup. Ct 283, 28 L Ed. 
 v. Lillo, 103 U. S. 792, 26 1.. Ed 
 art v. Salamon, 94 CT. S. 434, 24 L. Ed 
 Bires v. Duke, 105 U. S. 132, _ 
 but where a contract was entered in; 
 fore the war, and the deferred 
 came due and were discharged with depre- 
 currency, it was held, as against the 
 non-ratification of the payment, to be void; 
 Opie v. Castieman, 32 Fed. 511. 
 
 After one has accepted payment in Confed- 
 erate money and acquiesces in the transac- 
 tion for lifteen years, !. Luded by 
 laches from disputing its validity; Wash- 
 . v. opie, 145 CT. S. 21 I. 12 Sup. Ct 822, 
 36 L. Ed. CsO. Where payment was made in 
 lsr, j in such money, it was sufficient consid- 
 eration though it afterwards became worth- 
 less; Dohoney v. YVomack. 1 Tex. Civ. App. 
 354, 19 S. W. 883, 20 S. W. 950. The act of a 
 fiduciary in accepting Confederate money 
 in payment of debts due the estate and In- 
 vesting the proceeds in bonds of the Confed- 
 erate States issued for the avowed purpose 
 of waging war against the Cnited 
 wholly illegal; Opie v. Castleman, 32 Fed. 
 511. 
 
 CONFEDERATE STATES OF AMERICA. 
 The Confederate States were a de facto gov- 
 ernment in the sense that its citizens were 
 bound to render the government obedience in 
 civil matters, and did not become responsi- 
 ble, as wrong-doers, for such* acts of obedi- 
 ence; Thorington v. Smith, S Wall. (U. S.) 
 9, 19 L. Ed. 361 ; but it was not strictly a de 
 facto government; ibid.; see Williams v. 
 Bruffy, 96 U. S. 176, 24 L. Ed. 710. During 
 the war the inhabitants of the Confederate 
 States were treated as belligerents; Thor- 
 ington v. Smith. S Wall. (U. S.) 10, 19 L. Ed. 
 3G1; U. S. v. Alexander. 2 Wall. (U. S.) 404. 
 17 L. Ed. 915. Land sold to the Confederate 
 government, and captured by the Federal 
 government, became the property of the 
 United States; U. S. v. Iluckahee, 1G Wall. 
 (U. S.) 414, 21 L. Ed. 457. 
 
 The Confederate States was an illegal or- 
 ganization, within the provision of the con- 
 stitution of the United Slates prohibiting any 
 treaty, alliance, or confederation of one sta.te 
 with another; whatever efficacy, therefore, 
 its enactments possessed in any state enter- 
 ing into that organization, must be attribut- 
 ed to the sanction given* to them by that 
 state; Williams v. Bruffy, 96' U. S. 176, 24 
 I.. Ed. 716. The laws of the several 'states 
 were valid except so far as they tended to 
 impair the national authority or the rights 
 of citizens under the constitution; ibid. 
 
 Unless suspended or superseded by the 
 commanders of the United States forces
 
 CONFEDERATE STATES OF AMERICA 588 
 
 CONFERENCE 
 
 which occupied the insurrectionary states, 
 the laws of those states, so far as they af- 
 fected the inhabitants, remained in force 
 during the war, and over them their tribu- 
 nals continued to exercise their ordinary 
 jurisdiction; Coleman v. Tennessee, 97 U. 
 S. 509, 24 L. Ed. 1118. 
 
 "Beyond all doubt, the late rebellion 
 against the government of the United States 
 was a sectional civil war; and all persons' 
 interested in or affected by its operations are 
 entitled to have their rights determined by 
 the laws applicable to such a condition of 
 affairs." Waite, C. J., in Young v. U. S., 97 
 U. S. 39, 24 L. Ed. 992. 
 
 Transactions between persons actually 
 dwelling within the territory dominated by 
 the government of the Confederate States 
 were not invalid for the reason only that 
 they occurred under the sanction of the laws 
 of that government or of any local govern- 
 ment recognizing its authority; that within 
 such territory, the preservation of order, the 
 maintenance of police regulations, the prose- 
 cution of crimes, the protection of property, 
 the enforcement of contracts, the celebration 
 of marriages, the settlement of estates, etc., 
 were, during the war, under the control of 
 the local governments constituting the so- 
 called Confederate States. What was done 4 
 in respect of such matters under the author- 
 ity of the laws of these local de facto gov- 
 ernments should not be disregarded or held 
 invalid merely because those governments 
 were organized in hostility to the Union. 
 Judicial and legislative acts in the respective 
 states should be respected by the courts if 
 they were not hostile in their purpose or 
 mode of enforcement to the authority of the 
 national government, and did not impair the 
 rights of citizens under the federal consti- 
 tution. Harlan, J., in Baldy v. Hunter, 171 
 U. S. 388, IS Sup. Ct. 890, 43 L. Ed. 208. 
 
 "The government of the Confederate 
 States, although in no sense a government de 
 jure, and never recognized by the United 
 , States as in all respects a government de 
 facto, yet was an organized and actual gov- 
 ernment, maintained by military power, 
 throughout the limits of the states that ad- 
 hered to it, except in those portions of them 
 protected from its control by the presence 
 of the armed forces of the United States; 
 and the United States had conceded to that 
 government some of the rights and obliga- 
 tions of a belligerent." Oakes v. U. S., 174 
 U. S. 794, 19 Sup. Ct. 864, 43 L. Ed. 1169. 
 See 2 So. L. Rev. 313 ; 3 id. 47 ; Secession. 
 
 CONFEDERATION. The name given to 
 the form of government which the American 
 colonies during the revolution devised for 
 their mutual safety and government. 
 
 CONFEDERATION CLAUSE. See Con- 
 federacy. 
 
 CONFERENCE. In French Law. A simi- 
 
 larity between two laws or two systems of 
 laws. 
 
 In International Law. Verbal explanations 
 between the representatives of at least two 
 nations, for the purpose of accelerating mat- 
 ters by avoiding the delays and difficulties 
 of written communications. 
 
 A meeting of plenipotentiaries of different 
 nations to adjust differences or formulate a 
 plan of joint action; as, the conference at 
 Berlin of representatives of the United 
 States, Great Britain, and Germany respect- 
 ing the affairs of Samoa, in 18S9, the mone- 
 tary conference at Brussels of representa- 
 tives of the United States and several Euro- 
 pean powers in 1894, and the Hague Confer- 
 ences of 1899 and 1907. See Congress. 
 
 In Legislation. Mutual consultations by 
 two committees appointed, one by each house 
 of a legislature, in cases where the houses 
 cannot agree in their action. 
 
 CONFESSION. In Criminal Law. The 
 voluntary admission or declaration made by 
 a person who has committed a'crime or mis- 
 demeanor, to another, of the agency or par- 
 ticipation which he had in the same. Peo- 
 ple v. Par ton, 49 Cal. 632; State v. Novak, 
 109 la. 717, 79 N. W. 465. 
 
 Judicial confessions are those made before 
 a magistrate or in court in the due course of 
 legal proceedings. 
 
 Extra-judicial confessions arc those made 
 by the party elsewhere than before a magis- 
 trate or in open court. 
 
 Voluntary confessions are admissible in 
 evidence; Rafe v. State, 20 Ga. 60; Hamil- 
 ton v. State, 3 Ind. 552; Dick v. State, 30 
 Miss. 593 ; Craig v. State, 30 Tex. App. 619, 
 IS S. W. 297 ; McQueen v. State, 94 Ala. 50, 
 10 South. 433; State v. Coella, 3 Wash. 99, 
 28 Pac. 28; Wigginton v. Com., 92 Ky. 282, 
 17 S. W. 634 ; People v. Taylor, 93 Mich. 638, 
 53 N. W. 777 ; People v. Goldenson, 76 Cal. 
 328, 19 Pac. 161 ; Anderson v. State, 25 Neb. 
 555, 41 N. W. 357 ; State v. Demareste, 41 La. 
 Ann. 617, 6 South. 136; Com. v. Culver, 126 
 Mass. 464; but a confession is not admis- 
 sible in evidence where it is obtained by tem- 
 poral inducement, by threats, promise or 
 hope of favor held out to the part" in respect 
 of his escape from the charge against him, 
 by a person in authority; 4 C. & P. 570; 
 State v. York, 37 N. H. 175; Simon v. State, 
 5 Fla. 2S5; Smith v. State, 10 Ind. 106; 
 Smith v. Com., 10 Gratt. (Va.) 734; Flagg 
 v. People, 40 Mich. 706; Joe v. State, 38 Ala. 
 422 ; Earp v. State, 55 Ga. 136 ; Garrard v. 
 State, 50 Miss. 147; Territory v. McClin, 1 
 Mont. 394; Beery v. U. S., 2 Col. 180; State 
 v. Carr, 37 Vt. 191; Laros v. Com., 84 Pa. 
 200; see People v. Rogers, 18 N. Y. 9, 72 
 Am. Dec. -±84 ; Com. v. Cuffee, 108 Mass. 28 r > ; 
 State v. Day, 55 Vt. 510 ; State v. De Graff, 
 113 N. C. 688, 18 S. E. 507 ; or where there is 
 reason to presume that such person appear- 
 ed to the party to sanction such threat or in-
 
 CONFESSION 
 
 589 
 
 CONi 
 
 duceinent ; 5 C. & P. 539 ; 2 Crawf. & D. 347 ; 
 State v. Roberts, 12 N. C. 259. 
 
 To make an admission or a declaration a 
 confession, it must, in some way, have been 
 an acknowledgment of guilt, and have 
 so intended, for it must have been volun- 
 tary; State v. Novak, 109 la. 717, 79 N. W. 
 466; People v. Parton, 49 Cal. 632. Volun- 
 tary does not in such eases mean spontane- 
 ous ; Levison v. state. 54 Ala. 520; Roesel v. 
 State, G2 N. J. L. 21G, 41 Atl. 408. There 
 are three kinds: (1) A confession in open 
 court of the prisoner's guilt, which is con- 
 elusive and renders any proof unnecessary. 
 (2) The next highest kind of confession la 
 that made before a magistrate. (3) The 
 lowest is that which is made to any other 
 !i, and requires to be sustained by proof 
 of corroborating circumstances; Garrard v. 
 Stale, 50 Miss. 147. 
 
 The distinction between a confession and 
 a statement or declaration is recognized both 
 by courts and text -writers. A confession In 
 a legal sense is restricted to an acknowledg- 
 ment of guilt made by a person after an of- 
 fense has been committed and does not apply 
 to a mere statement or declaration of an in- 
 dependent fact from which such guilt may 
 be inferred; State v. Campbell, 73 Kan. 688, 
 85 Pac. 784, 9 L. R. A. (N. S.) 533, 9 Ann. 
 Cas. 1203 ; State v. Reinhart, 26 Or. 466, 38 
 Pac. 822 ; People v. Molineux, 168 N. Y. 264, 
 61 N. E. 2S6, 62 L. R. A. 193. 
 
 Where a defendant attended an inquest 
 in obedience to a subpoena and testified un- 
 der a threat of punishment for contempt if 
 he refused, his testimony was held admissi- 
 ble, though he was not advised of his rights 
 when it was given ; it being shown that he 
 was not under arre,st or formally accused of 
 crime ; People v. -Molineux, 16S N. Y. 264, 
 (il X. E. 286, 62 L. R. A. 193. To the same 
 effect, Taylor v. State, 37 Neb. 78S, 56 N. W. 
 623; People v. Mondon. 103 N. Y. 211, S N. 
 E. 496, 57 Am. Rep. 709; People v. Chap- 
 leau, 121 N. Y. 266, 24 N. E. 469 ; Wilson v. 
 State, 110 Ala. 1, 20 South. 415, 55 Am. St 
 Rep. 17; State v. Coffee, 56 Conn. 399, 16 
 Atl. 151; People v. Hickman, 113 Cal. 80, 
 45 Pac. 175; People v. Parton, 49 Cal. 632. 
 The inducement must be held out by a person 
 in authority; Com. v. Tuckerman, 10 Gray 
 (Mass.) IT:;; bul see 4 C. & P. 570; other- 
 wise the confession is admissible; 1 C. & P. 
 97. 129; State v. Gossett, 9 Rich. (S. C.) 428; 
 Bhifflet v. Com., 14 Gratt. (Va.) 652; Com. v. 
 Sego, 125 Mass. 210; Cady v. State, 44 Miss. 
 332 ; Ulrich v. People, 39 Mich. 245 : but see 
 Spears v. State, 2 Ohio St. 5S3; or if the in- 
 ducement be spiritual merely: 1 Mood. 197; 
 Jebb, Ir. 15; Com. v. Drake, 15 Mass. 161; 
 Fouts v. State, S Ohio St. 9S ; or an appeal 
 to the party to speak the truth : L. R. 1 C. C. 
 362; Cady v. State. 44 Miss. 333; Huffman 
 v. State, 130 Ala. S9, 30 South. 394; State v. 
 General Armstrong, 167 Mo. 267, 66 S. W. 
 
 961; Com. v. Sego, . 210; even if 
 
 the appeal comes from an otlicer of the law; 
 15 Ir. L. B. N. s, 60; Hardii 
 Ind. 359; State v. McLaugl Lin, 44 Is 
 I 'avis v. State, 2 Tex. A] by v. 
 
 State, 94 Ala. 55, 10 South 522; Com. v. My- 
 ers, 160 Mass. 530, 36 N. B. i-i ; but see 2 
 Crawf. & I). 152. Mere advice to d 
 tell the truth does not exclude: State v. 
 Hagan, 54 Mo. 192; Stafford 
 592; but see State v. Carson, 524, 
 
 L5 S. B. 588; and the temporal indue 
 must have been held out by the 
 whom the confession was made; 4 C. & P. 
 223; unless collusion be suspected; 4 < '. & 
 P. 550. The fact that defendant was intoxi- 
 cated when he made his confession, though 
 tending to affect its weight, is not ground 
 for its exclusion ; White v. State, 3L' Tex. Cr. 
 R. 625, 25 S. W. 784; State v. B 
 
 , 42 s<m;!i. 352; Lester v. state, 32 
 Ark. Ti'T: Eskridge v. State, 25 Ala. 30. 
 
 Confessions made by an accused in her 
 sleep were held admissible; State v. Mor- 
 gan, 35 W. Va. 200, 13 S. E. 385; contra, 
 People v. Robinson, 19 Cal. 41. 
 
 Nervousness on the part of the accused will 
 not render his statements inadmissible; state- 
 v. Jones, 47 La. Ann. 1524, 18 Smith. 515; 
 or that he was greatly excited ; People v. 
 Cokahnour, 120 Cal. 253, 52 Pac. 505; Young 
 v. State, 90 Md. 579, 45 Atl. 531; or that 
 he had but recently recovered from delirium 
 tremens: Com. v. Chance, 174 Mass. 245, ."1 
 N. E. 551, 75 Am. St. Rep. 306. 
 
 A confession is admissible though edited 
 by questions put to a prisoner by a consta- 
 ble, magistrate, or other person; 5 C. & P. 
 312; Austin v. State. 14 Ark. 556; O 
 Smith. 119 Mass. 305; Murphy v. People. 63 
 N. Y. 590; State v. Carlisle, 57 Mo. 102; 
 State v. Ingram, 16 Kan. 14 ; McQueen v. 
 State, 94 Ala. 50, 10 South. 4.°.:;: P.ell v. 
 State, 31 Tex. Cr. R. 270. 20 S. W. 5 19 : State 
 v. McLaughlin, 44 la. 82 : even though the 
 question assumes the prisoner's guilt or the 
 confession is obtained by trick or artifice; 
 i Mood. 28; Sam v. state. 33 Miss. 347; 
 v. Fredericks, 85 Mo. 145; State v. Staley, 
 14 Minn. 105 (Gil. 75); Balbo v. Teople, SO 
 N. Y. 484; King v. State, 40 Ala. 314; and 
 although it appears that the prisoner was 
 not warned that what he said would be used 
 against him; 8 Mod. 89; 9 C. & P. 124. 
 Statements made to a trial judge freely and 
 voluntarily are admissible in evidence: State 
 v. Chambers, b"> La. Ann. 36, 13 South. 944. 
 
 Confession under oath is admissible when 
 freely made; Com. v. Wesley. 166 Mass. 248, 
 4 1 N. E. 228; Shoeffler v. state. 3 Wis. 823; 
 Com. v. Clark, 130 Pa. 641, 18 Atl. 988; State 
 v. Legg, 59 W. Va. 315, 53 S. B. 545, 3 L. R. A. 
 (N. S.) 1152; U. S. v. Brown, 40 Fed. 457: 
 People v. McGloin, 91 N. Y. 241. That it 
 was made under oath does not change it from 
 a confession into a deposition ; People v.
 
 CONFESSION 
 
 590 
 
 CONFESSION 
 
 Owen, 154 Mich. 571, 118 N. W. 590, 21 L. R. 
 A. (N. S.) 520. 
 
 The question of the admissibility of con- 
 fessions at examinations under oath is al- 
 most wholly controlled by statute, the pris- 
 oner being permitted to become a witness for 
 himself, and being entitled to be cautioned 
 that his statements may be used against him. 
 It is then simply a question whether the stat- 
 utory requirements have been fulfilled. 
 Where a statute contained no provision au- 
 thorizing or permitting an oath in the pre- 
 liminary examination, a confession under 
 oath was held inadmissible; People v. Gib- 
 bons, 43 Cal. 557. 
 
 The spirit of the law is that one accused 
 of crime shall not be required to be put un- 
 der oath, and thus placed in the dilemma of 
 either being required to testify against him- 
 self or being subject to the penalties of false 
 swearing; Adams v. State, 129 Ga. 248, 58 
 S. E. 822, 17 L. R. A. (N. S.) 468, 12 Ann. 
 Cas. 15S, where the accused were summon- 
 ed before a coroner's jury, and without be- 
 ing informed of their right not to testify, 
 were sworn. 
 
 A statement, not compulsory, made by a 
 party not at the time a prisoner under a 
 criminal charge, is admissible in evidence 
 against him, although it is made upon oath ; 
 5 C. & P. 530 ; State v. Broughton, 29 N. C. 
 96, 45 Am. Dec. 507; State v. Vaigneur, 5 
 Rich. (S. C.) 391; Com. v. Reynolds, 122 
 Mass. 454 ; Alston v. State, 41 Tex. 39 ; Sny- 
 der v. State, 59 Ind. 105; contra, Josephine 
 v. State, 39 Miss. 615; see 8 C. & P. 250; 
 otherwise, if the answers are compulsory; 
 1 Den. Cr. Cas. 236 ; People v. McMahon, 15 
 N. Y. 384; Shoeffler v. State, 3 Wis. 823; 
 People v. McMahon, 2 Park. Cr. Cas. (N. Y.) 
 663 ; U. S. v. Prescott, 2 Dill. 405, Fed. Cas. 
 No. 16,085 ; People v. Soto, 49 Cal. 69. 
 
 A confession may be inferred from the 
 conduct and demeanor of a prisoner when a 
 statement is made in his presence affecting 
 himself ; 5 C. & P. 332 ; State v. Crowson, 98 
 N. C. 595, 4 S. E. 143 ; . Slattery v. People, 76 
 111. 217; Murphy v. State, 36 Ohio St. 628; 
 Broyles v. State, 47 Ind. 251; unless such 
 statement is made in the deposition of a wit- 
 ness or examination of another prisoner be- 
 fore a magistrate; 1 Mood. 347; 6 C. & P. 
 164. 
 
 Where a confession has been obtained, or 
 an inducement held out, under circumstances 
 which would render a confession inadmissi- 
 ble, a confession subsequently made is not 
 admissible, unless from the length of time 
 intervening, from proper warning of the con- 
 sequences, or from other circumstances, there 
 is reason to presume that the hope or fear 
 which influenced the first confession is dis- 
 pelled ; 1 Greenl. Ev. 221; 4 C. & P. 225; 
 State v. Guild, 10 N. J. L. 163, 18 Am. Dec. 
 404; State v. Patrick, 48 N. C. 443; State 
 v. Vaigneur, 5 Rich. (S. C.) 391 ; Van Buren 
 
 v. State, 24 Miss. 512; Bubster v. State, 33 
 Neb. 663, 50 N. W. 953 ; State v. Drake, 113 
 N. C. 624, 18 S. E. 166; State v. Carr, 
 37 Vt. 191; Com. v. Sheets, 197 Pa. 69, 46 
 Atl. 753; People v. Castro, 125 Cal. 521, 58 
 Pac. 133; Smith v. State, 74 Ark. 397, 85 
 S. W. 1123 ; State v. Wood, 122 La. 1014, 48 
 South. 43S, 20 L. R. A. (N. S.) 392 ; U. S. v. 
 Charles, 2 Cra. C..C. 76, Fed. Cas. No. 14,- 
 786 ; and the motives proved to have been 
 offered will be presumed to continue, and to 
 have produced the confession, unless the con- 
 trary is shown by clear evidence, and the con- 
 fession will be rejected ; State v. Roberts, 12 
 N. C. 259; Peter v. State, 12 Smedes & M. 
 (Miss.) 31; Com. v. Taylor, 5 Cush. (Mass.) 
 605; State v. Potter, 18 Conn. 166; Moore 
 v. Com., 2 Leigh (Va.) 701; Bob v. State, 32 
 Ala. 560; Deathridge v. State, 1 Sneed 
 (Tenn.) 75. 
 
 Under such circumstances, contemporane- 
 ous declarations of the party are receivable 
 in evidence, or not, according to the attend- 
 ing circumstances ; but any act of the party, 
 though done in consequence of such confes- 
 sion, is admissible if it appears from a fact 
 thereby discovered that so much of the con- 
 fession as immediately relates to it is true; 
 1 Leach 263, 386; Russ & R. 151; Com. v. 
 Knapp, 9 Pick. (Mass.) 496, 20 Am. Dec. 491 ; 
 Jordan v. State, 32 Miss. 382; State v. Mot- 
 ley, 7 Rich. (S. C.) 327. 
 
 A confession made before a magistrate is 
 admissible; State v. Patterson, 68 N. C. 292 ; 
 State v. Hand, 71 N. J. L. 137, 58 Atl. 641 ; 
 though made before the evidence of the wit- 
 nesses against the party was concluded ; 4 
 C. & P. 567. 
 
 Parol evidence, precise and distinct, of a 
 statement made by a prisoner before a mag- 
 istrate during his examination, is admissi- 
 ble though such statement neither appears in 
 the written examination nor is vouched for 
 by the magistrate; State v. Bowe, 61 Me. 
 171; 7 C. & P. 188; but not if it is of a 
 character which it was the duty of the magis- 
 trate to have noted; 1 Greenl. Ev. § 227, n. 
 Parol evidence of a confession before a mag- 
 istrate may be given where the written ex- 
 amination is inadmissible through informal- 
 ity ; 4 C. & P. 550, n. ; State v. Parish, 44 
 N. C. 239. 
 
 Accusatory statements made to a prisoner 
 and not replied to by him are admissible; 
 Simmons v. State (Ala.) 61 South. 466. 
 
 The whole of what the prisoner said must 
 be taken together; 1 Greenl. Ev. 218; 2 C. 
 & K. 221; Brown v. Com., 9 Leigh (Va.) 633, 
 33 Am. Dec. 263; Republica v. McCarty, 2 
 Dall. (Pa.) 86, 1 L. Ed. 300. Where a pris- 
 oner signs the confession which is written by 
 another for him, he waives any objection to 
 it as evidence; Com. v. Coy, 157 Mass. 200, 
 32 N. E. 4. 
 
 The prevailing rule is that confessions are 
 prima facie voluntary; Egner v. State, 25
 
 CONFESSION 
 
 591 
 
 CONFI-.SSION 
 
 Ohio St. 464; Com. v. Culver, 126 Mass. 
 464; State v. Sanders, 84 N. C. 728; State 
 v. Meyers, 99 Mo. 107, 12 S. W. 516; State 
 v. Hottman, 196 Mo. 110, 94 S. W. 237; State 
 v. Grover, 96 Me. 363, 52 Atl. 757 ; Tnurman 
 v. State, 169 Ind. 240, 82 X. B. 64; but it 
 is sometimes held that confessions are prima 
 facie involuntary and therefore inadmissi- 
 ble, and they can be rendered admissible 
 only by showing that they are voluntary and 
 not constrained; Amos v. State, 83 Ala. 1, 
 3 South. 749, 3 Am. sr. Bep. 682; Jackson v. 
 State, 83 Ala. 76, 3 South. 847; Corley v. 
 State, 50 Ark. 305, 7 S. W. 255; bnt a con- 
 fession is not rendered Inadmissible by the 
 fact that the party is in custody, provided 
 it is not extorted by inducements or threats; 
 Pierce v. U. S., 160 U. S. 355, 16 Sup. Ct 
 321, 40 L. Ed. 454; Nicholson v. State, 38 
 Md. 140 ; State v. Johnson, 30 La. Ann. S81 ; 
 State v. Hernia, 68 N. J. L. 299, 53 Atl. 85; 
 State v. Conly, 130 N. C. 683, 41 S. E. 634; 
 Hintz v. State, 125 Wis. 405, 104 N. W. 110; 
 Calloway v. State, 103 Ala. 27, 15 South. 821 ; 
 State v. Armstrong, 203 Mo. 554, 102 S. W. 
 503. 
 
 The practice of eliciting confessions by a 
 magistrate during the preliminary examina- 
 tion has been strongly condemned. Such 
 a power, once admitted, is liable to unlimited 
 abuse. It is a power not judicial, but es- 
 sentially inquisitorial, and, on the whole, 
 prejudicial to the administration of justice; 
 Kelly v. State, 72 Ala. 244 ; Brown v. Walker, 
 161 U. S. 596, 16 Sup. Ct. 644, 40 L. Ed. 819. 
 In Bram v. U. S., 168 U. S. 532, 18 Sup. 
 Ct. 183, 42 L. Ed. 56S, it was said: To com- 
 municate to a person suspected of the com- 
 mission of crime the fact that his co-suspect 
 has stated that he had seen him commit the 
 offense ; to make this statement to him un- 
 der circumstances which call imperatively 
 for an admission or a denial ; and to accom- 
 pany the communication with conduct which 
 necessarily perturbs the mind and engen- 
 ders confusion of thought; and then to use 
 the denial made by the person so situated as a 
 confession because of the form in which the 
 denial is made, is not oidy to compel the 
 reply, but to produce the confusion of words 
 supposed to be found in it, and then use 
 statements thus brought into being for the 
 conviction of the accused. A plainer viola- 
 tion as well of the letter as of the spirit and 
 purpose of the constitutional immunity could 
 scarcely be conceived of. 
 
 A confession by a prisoner who had been 
 confined for several days in a sweat box is 
 not admissible against him. though no threats 
 nor coercion were used, nor any inducements 
 held out to him; Amnions v. State, 80 Miss. 
 592, 32 South. 9, 18 L. R. A. (N. S.) 70s. 82 
 Am. St. Rep. 607. Such sweat box pro- 
 cedure is unlawful ; Flagg v. People, 40 Mich. 
 706. 
 
 Where the accused was taken to the office 
 
 of the chief of police, and in the presence 
 of several deputies, detectives and newspa- 
 per men, for an hour to an hour and a half, 
 was closely questioned by those present un- 
 til he was very much broken down, being 
 very weak but "not quite collapsed," and in 
 this condition he coni , such confession 
 
 was held involuntary and madim I ■ al- 
 
 laher v. State, 4U Tex. (Jr. R. 21 W. 
 
 388. 
 
 In 31 Ont. Rep. 14, it is said that 
 statements made by persons accused, while 
 In custody, in response to questions put by an 
 officer in charge, the judges have regarded 
 the matter from three points of view. First, 
 there are those who consider the practice so 
 reprehensible that any statement so obtained 
 Should not be given in evidence. Others, 
 that while the practice of interrogation is 
 undesirable and not to be encouraged, yet the 
 answer so obtained could not be rejected as 
 evidence. The third class held that such an 
 investigation might be so conducted as to be 
 useful and even desirable in the furtherance 
 of justice. 
 
 That the confession was drawn out by the 
 questions of a police officer will not render it 
 inadmissible; Bram v. U. S., 168 U. S. 532, 
 18 Sup. Ct. 183, 42 L. Ed. 56S; Com. v. 
 Storti. 177 Mass. 339, 58 N. E. 1021; Com. 
 v. Williams, 171 Mass. 461, 50 N. E. 1035; 
 Slate v. Phelps. 74 Mo. 12s. i n state v. 
 Brinte, 4 Pennewill (Del.) 551, 58 Atl. 258, an 
 objection was made that such a confession 
 was involuntary under the 5th Amendment 
 to the U. S. Constitution, but it was held 
 that this applies to judicial examinations, 
 not to extra-judicial confessions ; so in 
 (1S93) 2 Q. B. 12. 
 
 The prisoner's confession, when the corpus 
 delicti is not otherwise proved, is insufficient 
 to warrant his conviction ; State v. Guild. 
 10 N. J. L. 163, 185, 18 Am. Dec. 404 ; Keith- 
 ler v. State, 10 Smedes & M. (Miss.) 229; 
 Flower v. U. S., 116 Fed. 241, 53 I* Ed. -71 ; 
 Bergen v. People, 17 111. 426, 65 Am. Dec. 872. 
 See, contra, Russ. & R. 481, 509 ; 1 Leach 311 ; 
 People v. Rulloff, 3 Park. Cr. ("as. (N. I.) 
 401; Stephen v. State, 11 Ca. 225. 
 
 Whether a confession is voluntary is held 
 to be primarily for the court to determine; 
 State v. Hernia. 68 N. J. L. 299, 53 A1 
 State v. Burgwyn, 87 X. C. 572; B 
 v. state, 74 Miss. 515, 21 South. 305; 
 Smith v. Com., 10 Gratt (Va.) .-"•!; Brown 
 v. State, 124 Ala. 76, 27 South. 250; Murray 
 v. State, 25 Fla. 528, 6 South. 198; State v. 
 Gorham, 67 Vt. 365, 31 Atl. 845; State v. 
 Sherman, 35 Mont. 512, 90 Pac. 981, Lltf Am. 
 St. Rep. SCO; Com. v. Howe, 132 .Mass. 250; 
 state v. Stebbins, 188 Mo. 387, 87 S. W. 460; 
 People v. White, 176 N. Y. 331, 68 N. E. 630; 
 Com v. Johnson, 217 Pa. 77, 66 Atl. 233; 
 Hintz v. state. 125 Wis. 405, 104 X. W. 110; 
 other cases hold that, on conflicting evidence, 
 it is for the jury; Burdge v. State, 53 Onio
 
 CONFESSION 
 
 592 
 
 CONFIDENCE 
 
 St. 512, 42 N. E. 594 ; People v. Cassidy, 133 
 N. Y. 612, 30 N. E. 1003; Com. v. Sheu, 190 
 Pa. 23. 42 Atl. 377; Com. v. Burrough, 102 
 Mass. 513, 39 N. E. 184; People v. Robinson, 
 SO Mich. 415, 49 N. W. 260; State v. Steb- 
 bins, 1SS Mo. 387, 87 S. W. 400; State v. 
 Moore, 160 Mo. 443, 61 S. W. 199; Com. v. 
 Epps, 193 Pa. 512, 44 Atl. 570; People v. 
 Oliveria, 127 Cal. 377, 59 Pac. 772. 
 
 When there is a conflict of evidence as to 
 whether a confession is or is not voluntary, 
 if the court decides that it is admissible, the 
 question may be left to the jury, with the 
 direction that they shall reject the confes- 
 sion if, upon the whole evidence, they are 
 satisfied it was not the voluntary act of the 
 defendant; Wilson v. U. S., 162 TJ. S. 613, 
 16 Sup. Ct. S95, 40 L. Ed. 1090, followed in 
 Roesel v. State, 62 N. J. L. 216, 41 Atl. 408 ; 
 Burdge v. State, 53 Ohio St. 512, 42 N. E. 
 594 ; Hardy v. U. S., 3 App. D. C. 35 ; Com. 
 v. Preece, 140 Mass. 276, 5 N. E. 494. 
 
 Consult Greenleaf; Wigmore; Phillipps, 
 Evidence; Wharton, Criminal Evidence; 
 Roscoe, Crim. Ev. ; Joy, Confessions ; 1 Ben- 
 nett & H. Lead. Cr. Cas. 112. See Admis- 
 sions. 
 
 CONFESSION AND AVOIDANCE. The 
 
 admission in a pleading of the truth of the 
 facts as stated in the pleading to which it 
 is an answer, and the allegation of new and 
 related matter of fact which destroys the 
 legal effect of the facts so admitted. The 
 plea and any of the subsequent pleadings 
 may be by way of confession and avoidance, 
 or, which is the same thing, in confession 
 and avoidance. Pleadings in confession and 
 avoidance must give color. See Coloe; 1 
 East 212. They must admit the material 
 facts of the opponent's pleading, either ex- 
 pressly in terms ; Dy. 171 6 ; or in effect. 
 They must conclude with a verification; 1 
 Saund. 103, n. For the form of statement, 
 see Steph. PL 72, 79. 
 
 Pleas in confession and avoidance are ei- 
 ther in justification and excuse, which go 
 to show that the plaintiff never had any 
 right of action, as, for example, son assault 
 demesne, or in discharge, which go to show 
 that his right has been released by some 
 matter subsequent 
 
 CONFESSOR. A priest of some Christian 
 church who hears confessions of their sins 
 by members of his church and undertakes 
 to give them absolution of their sins. The 
 common law does not recognize any such re- 
 lation, at least so as to exempt or prevent 
 the confessor from disclosing such communi- 
 cations as are made to him in this capacity, 
 when he is called upon as a witness. See 
 Confidential Communications. 
 
 CONFIDENCE. This word is considered 
 peculiarly appropriate to create a trust. It 
 is, when applied to the subject of a trust, as 
 nearly a synonym as the English language 
 
 is capable of. Trust is a confidence which 
 one man reposes in another, and confidence 
 is a trust. Coates' Appeal, 2 Pa. 133. 
 
 CONFIDENTIAL COMMUNICATIONS. 
 
 Those statements with regard to any trans- 
 action made by one person to another during 
 the continuance of some relation between 
 them which calls for or warrants such com- 
 munications. 
 
 At law, certain classes of such communi- 
 cations are held not to be proper subjects 
 of inquiry in courts of justice, and the per- 
 sons receiving them are excluded from dis- 
 closing them when called upon as witnesses, 
 upon grounds of public policy. 
 
 Secrets of state and communications be- 
 tween the government and its officers are 
 usually privileged ; Gray v. Pentland. 2 S. 
 & R. (Pa.) 23; Thompson v. R. Co., 22 N. J. 
 Eq. Ill ; 5 H. & N. 538 ; Totten v. TJ. S.. 92 
 U. S. 107, 23 L. Ed. 605. So also the con- 
 sultations of the judges, the testimony of 
 arbitrators in certain cases, and the sources 
 of information in criminal prosecutions ; 1 
 Wharton, Ev. sec. 600; Welcome v. Batchel- 
 der, 23 Me. 85 ; 4 C. & P. 327 ; Woodbury v. 
 Northy, 3 Greenl. (Me.) 85, 14 Am. Dec. 214; 
 Worthington v. Scribner, 109 Mass. 4S7, 12 
 Am. Rep. 736; Stephen's Dig. Ev. art 113. 
 
 Of this character are all communications 
 made between husband and wife in all cases 
 in which the interests of the other party are 
 involved; Stein v. Bowman, 13 Pet. (U. S.) 
 223, 10 L. Ed. 129; Drew v. Tarbell, 117 
 Mass. 90; Castello v. Castello, 41 Ga. 613; 
 Corse v. Patterson, 6 Har. & J. (Md.) 153; 
 Warner v. Pub. Co., 132 N. Y. 181, 30 N. E. 
 393; French v. Wade, 35 Kan. 391, 11 Pac. 
 138 ; Higham v. Vanosdol, 101 Ind. 160. Nor 
 does it make any difference which party is 
 called upon as a witness; Ry. & M. 352; or 
 when the relation commenced ; 3 C. & P. 558 ; 
 or whether it has terminated; Stein v. Bow- 
 man, 13 Pet. (U. S.) 209, 10 L. Ed. 129; 
 Barnes v. Camack, 1 Barb. (N. Y.) 392; 
 1 C. & P. 364; Robb's Appeal, 98 Pa. 501; 
 Stanley v. Montgomery, 102 Ind. 102, 26 N. 
 E. 213 ; Crose v. Rutledge, 81 111. 266 ; Lingo 
 v. State, 29 Ga. 470. A third party who 
 overheard such a conversation may testify 
 as to it ; Com. v. Griffin, 110 Mass. 181 ; Gan- 
 non v. People, 127 111. 518, 21 N. E. 525, 11 
 Am. St. Rep. 147. The wife may be exam- 
 ined as to a conversation with her husband 
 in the presence of a third party; State v. 
 Center, 35 Vt 379; Lyon v. Prouty, 154 
 Mass. 4SS, 28 N. E. 90S; Fay v. Guynon, 131 
 Mass. 31 ; Floyd v. Miller, 61 Ind. 224 ; Wes- 
 terman v. Westerman, 25 Ohio St. 500; but 
 not if the third person failed to hear or paid 
 no attention to the conversation; Jacobs v. 
 Hesler, 113 Mass. 160. 
 
 The confidential counsellor, solicitor, or at- 
 torney of any party cannot be compelled to 
 disclose papers delivered or communications 
 made to him, or letters written or entries
 
 CONFIDENTIAL COMMUNICATIONS 593 CONFIDENTIAL C< 'MMUNICATI' >NS 
 
 made by him, in that capacity ; 4 B. & Ad. 
 876; Britton v. Lorenz, 45 N. Y. 57; Orton 
 v. McCord, 33 Wis. 205; Johnson v. Sullivan, 
 23 Mo. 474; Chirac v. Reinicker, 11 Wheat 
 (U. S.) 295, 6 L. Ed. 174; Sweet v. Owens, 
 109 Mo. 1, 18 S. W. 928; Swaim v. Humph- 
 reys, 42 111. App. 370; Andrews v. Simms, 
 33 Ark. 771 ; Hollenback v. Todd, 119 111. 513, 
 8 N. E. 829; Blgbee v. Dresser, 103 Mass. 
 523; Vogel v. Gruaz, 110 U. S. 311, 4 Sup. 
 Ct 12, 28 L. Ed. 15S; Snow v. Could, 71 Me. 
 540, 43 Am. Rep. 604; 9 Exch. 298; nor will 
 he be permitted to make such communica- 
 tions against the will of his client; 4 Term 
 750, 759; 12 J. B. Moo. 520; Bank of 
 v. Mersereau, 3 Barb. Ch. (N. Y.) 528, 49 
 Am. Dec. 189; Anon., 8 Mass. 370; nor even 
 if the communication is made in the pres- 
 ence of a third person ; Blount v. Kimpton, 
 155 Mass. 378, ii'.) N. E. 590, 31 Am. St. Rep. 
 55 I ; nor will the client be compelled to dis- 
 close such communications ; Bigler v. Reyher, 
 43 Ind. 112; Duttenhofer v. state. 34 Ohio 
 St. 91, 32 Am. Rep. 302; Ilemenway v. Smith. 
 28 Vt. 701; not even when the client takes 
 the witness stand on his own behalf; Bigler 
 v. Reyher, 43 Ind. 112; Barker v. Kuhn, 38 
 la. 395; Duttenhofer v. State, 34 Ohio St 
 91. .".-J Am. Rep. 362; contra. Inhabitants of 
 Woburn v. Henshaw, 101 Mass. 193, 3 Am. 
 Rep. 333. 
 
 The privilege extends to all matters made 
 the subject of professional intercourse, with 
 out regard to the pendency of legal proceed- 
 ings; 5 C. & P. 592; Miller v. Weeks, 22 Pa. 
 89; Foster v. Hall, 12 Pick. (Mass.) 89, 22 
 Am. Dec. 400; Sargent v. Inhabitants of 
 Hampden, 38 Me. 581 : Wetherbee v. E/.ekiel, 
 25 Vt. 47; Bacon v. Frisbie, 80 N. Y. 394, 36 
 Am. Rep. <">27; Jones v. State, 05 Miss. 179, 3 
 South. 379; Young v. State, 65 Ga. 525; but 
 see Ilemenway v. Smith, 2S Vt. 701; Thomp- 
 son v. Kilborne, 28 Vt. 750, 67 Am. Deo. 742 : 
 and to matters discovered by the counsellor, 
 etc., in consequence of this relation ; 5 Esp. 
 52. 
 
 Conversations between solicitor or counsel 
 and a party, relating to the subject matter 
 of a suit, are privileged; Montgomery v. 
 Perkins. 94 Fed -■'■ ; bul evidence of a con- 
 tract between an attorney and client for 
 compensation, or the assignment of an in- 
 terest in the judgment, is not privileged ; 
 Strickland v. Mills. 74 S. C. 16, 5 1 s. E. 220, 
 7 L. R. A. (N. S.) 426; and the attorney Is 
 released from his obligation of secrecy so 
 far as is necessary to protect his Interests; 
 Keck v. Bode, 23 Oh. C. C. 41:',; Mitchell v. 
 Bromberger, 2 Nev. 345, 90 Am. Dec. 550; 
 Minard v. Stillman, 31 Or. 164, 49 Pac. 976, 
 65 Am. St. Rep. 815; Nave v. Baird, 12 Ind. 
 318; L. R. 35 Ch. Div. 722. An attorney will 
 be compelled to disclose the name and resi- 
 dence of a person who retains him as coun- 
 sel for an accused person, but be need not 
 disclose, the interest of such person in the 
 matter; U. S. v. Lee, 107 Fed. 702. A com- 
 Bouv.— 38 
 
 munieation to a counselor in the cour 
 his employment by persons other than his 
 client is not privileged; General Electric Co. 
 v. Jonathon Clark & Sons Co.. I. 170; 
 
 likewise a letter written by an attorney to 
 his client advising him of the terms of an 
 injunction granted against him: Aaron v. 
 U. S., 155 Fed. 833, 84 C. C. A. 
 
 The doctrine of prl unications 
 
 does not applj t" a solicitor of ] when 
 
 he is not an attorney-at-law ; Bi 
 Smith, -19 Fed. 124. 
 
 ( lommunications bet r his 
 
 legal adviser and v, 
 
 F. EL 8 Eq. 522; 16 Id. 112; but see In re 
 Mellen, 18 N. Y. Supp. 515; so are communi- 
 cations between parlies to a cause touching 
 the preparation of evidence; liar.'. F 
 L52; 43 f. .F. C. P. 206; but see 6 B. & S. 
 888; 3 IF & N. 871. Communications be- 
 an attorney and client are not privi- 
 leged where the latter disclaims the exist- 
 ence of such relations. 
 
 Interpreters ; 4 Term 756; Jackson v. 
 French, 3 Wend. (N. Y.) 337, 20 Am. Dec. 
 699; in re Mellen, 18 N. Y. Supp. 515; Par- 
 ker v. Carter, 4 Munf. (Va.) 27."., 6 Am. Dec. 
 513; Maas v. Bloch, 7 End. 202; Andrews v. 
 Solomon, 1 Pet. I .378; 
 
 and agents to , >; 2 Beav. 17:. : 
 
 l Phill. Ch. 471. 687; are considered as 
 standing in the same relation as the attor- 
 ney; so, also, is a barrister's clerk; 2 C. & 
 P. 195; 5 id. 177; 5 M. & G. . 
 Hall, 12 Pick, I Mass.) 93, 22 Am. Dec 
 Jackson v. French. 3 Wend, i N. V 
 Am. Dec. 699; Sibley v. Waffle, 16 N. V. 
 Landsberger v. Gorham, 5 Cal. 450; but not 
 a student at law in an attorney's office; 
 Barnes v. Harris. 7 Cush. (Mass.) 576, 5! 
 Am. Dec. 734. Contra, Pritchard v. Hender- 
 son, 3 Pennewill (Del.) 128, 50 Atl. 217. 
 
 The cases in which communications to 
 counsel have been held not to be privi 
 may be classed under the following beads : 
 When the communication was made before 
 the attorney was employed as such; 1 Vent'-. 
 197; see Sargent v. Hampden, 38 Me. 
 Sharon v. Sharon. 7!» CaL 636, 22 F 
 131 ; Althouse 7. Wells. 40 Hun I X. Y. 
 Wilson v. Godlove, •"! Mo. 337; after tl 
 torney's employment has ceased; 4 Term 
 431 : Williams v. Benton, 1'-' Fa. Ami. 91 : 
 when the attorney was consulted becai 
 was an attorney, yet was not act;!.- as such; 
 
 1 Term 753; Alderman v. People. I Mich. 
 
 •ill. 69 Am. I -".21: Goltra v. Wolcott, 14 
 
 ill. 89; Branden & Nethers v. Gowing, 7 
 Rich, i s. C. | 159 : where his relation 
 torney was the cause of his being present 
 at the taking place of a fact, but there was 
 nothing in the circumstances to make it 
 amount to a communication: 2 V' 
 
 2 Cuit. F. el. 866; Fatten v. Moor, 29 N. IF 
 163; when the matter communicated was not 
 in its nature private, and could in do 
 
 be termed the subject of a confidential com-
 
 CONFIDENTIAL COMMUNICATIONS 594 CONFIDENTIAL, COMMUNICATIONS 
 
 munication ; 7 East 357 ; Riggs v. Denniston, 
 3 Johns. Cas. (N. Y.) 198, 2 Am. Dec. 145; 
 Lloyd v. Davis, 2 Ind. App. 170, 28 N. E. 
 232 ; when it was intended that the com- 
 munications should be imparted by him to 
 others; Ferguson v. McBean, 91 Cal. 63, 27 
 Pac. 518, 14 L. R. A. 05; when the things 
 disclosed had no reference to professional 
 employment, though disclosed while the re- 
 lation of attorney and client subsisted; 
 Peake 77 ; when the attorney made himself a 
 subscribing witness; 2 Curt. Eccl. 800; 3 
 Burr. 1G87 ; when he is a party to the trans- 
 action ; Dudley v. Beck, 3 Wis. 274; Story, 
 Eq. PI. § 001 ; when he was directed to plead 
 the facts to which he is called to testify ; 
 Cormier v. Richard, 7 Mart. La. (N. S.) 179; 
 where an attorney is employed only to draw 
 up a deed and bill of sale to be executed by 
 another to such person, he may testify as to 
 what passed between them and himself; 
 O'Neill v. Murry, Dak. 107, 50 N. W. 619. 
 
 The attorney may be called upon to prove 
 his client's handwriting; Brown v. Jewett, 
 120 Mass. 215 ; L. R. 8 Eq. 575 ; L. R. 5 Ch. 
 Ap. 703; Glenn v. Liggett, 47 Fed. 472; to 
 identify his client; 2 D. & R. 347; though 
 not to disclose his client's address ; L. R. 15 
 Eq. 257 ; unless the client be a ward of court ; 
 L. R. S Eq. 575; or a bankrupt; L. R. 5 Ch. 
 703. He may be required to testify as to 
 whether he was retained by his client, and 
 in what capacity; Whart. Ev. 589; Heaton 
 v. Findlay, 12 Pa. 304; but see Chirac v. 
 Reinicker, 11 Wheat. (U. S.) 2S0, 6 L. Ed. 
 474. 
 
 After testator's death on the question 
 whether an instrument present for probate 
 was his will, the attorney may testify as to 
 directions given him in its preparation by 
 testator; Doherty v. O'Callaghan, 157 Mass. 
 90, 31 N. E. 720, 17 L. R. A. 188, 34 Am. St. 
 Rep. 258. He may testify as to what was 
 said in their presence by a third person 
 brought by his client ; Tyler v. Hall, 100 Mo. 
 313, 17 S. W. 319, 27 Am. St. Rep. 337. 
 
 The rule of privilege does not extend to 
 confessions made to clergymen; 1 Greenl. 
 Ev. 247 ; 4 Term 753 ; 2 Skimm. 404 ; Com. v. 
 Drake, 15 Mass. 161; 1 McNally 253; State 
 v. Bostick, 4 Harr. (Del.) 563; 22 L. R. Ir. 
 158 ; see 33 Am. L. Rev. 544 ; though judges 
 have been unwilling to enforce a disclosure; 
 3 C. & P. 519 ; 6 Cox, C. C. 219 ; and see Tot- 
 ten v. U. S., 92 U. S. 105, 23 L. Ed. 005 ; Sut- 
 ton v. Johnson, 02 111. 209; Com. v. Call, 21 
 Pick. (Mass.) 515, 32 Am. Dec. 284; and the 
 rale is otherwise by statute in some states ; 
 nor to physicians; 11 Hargr. St. Tr. 243 ; 20 
 How. St. Tr. 043 ; 1 C. & P. 97 ; L. R. C. 
 P. 252; Campau v. North, 39 Mich. 000, 33 
 Am. Rep. 433 ; L. R. 9 Ex. 398 ; but in some 
 states this has been changed by statute; 
 Whart. Ev. § 000; Masonic Mut. Ben. Ass'n 
 v. Beck, 77 Ind. 203, 40 Am. Rep. 295; Con- 
 necticut Mut. Life Ins. Co. v. Trust Co., 112 
 U. S. 250, 5 Sup. Ct. 119, 28 L. Ed. 708 ; Cor- 
 
 bett v. R. Co., 20 Mo. App. 021 ; Kansas City, 
 Ft. S. & M. R. Co. v. Murray, 55 Kan. 336, 
 40 Pac. 040; In re Flint, 100 Cal. 391, 34 Pac. 
 803; Johnson v. Johnson, 14 Wend. (N. Y.) 
 637 ; and information acquired by the physi- 
 cians of a railroad company in treating an 
 injured person against her protest is privi- 
 leged ; Union Pac. R. Co. v. Thomas, 152 
 Fed. 365, 81 C. C. A. 491 ; but he may testify 
 from knowledge and information acquired 
 while not treating a patient professionally; 
 Fisher v. Fisher, 129 N. Y. 654, 29 N. E. 951. 
 
 Privilege does not extend to confidential 
 friends; 4 Term 758; Hoffman v. Smith, 1 
 Cai. (N. Y.) 157; Brayton v. Chase, 3 Wis. 
 456; Goltra v. Wolcott, 14 111. 89; L. R. 18 
 Eq. 649; clerks; 3 Campb. 337; 1 C. & P. 
 337 ; bankers; 2 C. & P. 325 ; a banker is not 
 privileged to withhold the identity of a per- 
 son depositing securities in his bank ; Inter- 
 state Commerce Commission v. Harrimah, 
 157 Fed. 432; stewards; 2 Atk. 524; 11 Price 
 455; nor servants; Isham v. State, 6 How. 
 (Miss.) 35. 
 
 Where, at the trial, the privilege of a 
 physician is waived, such waiver extends to 
 subsequent trials ; Elliott v. Kansas City, 
 198 Mo. 593, 96 S. W. 1023, 6 L. R. A. (N. S.) 
 1082, 8 Ann. Cas. 053; McKinney v. R. Co., 
 104 N. Y. 352, 10 N. E. 544 ; Green v. Crapo, 
 181 Mass. 55, 62 N. E. 956; contra, Burgess 
 v. Drug Co., 114 la. 275, 86 N. W. 307, 54 
 L. R. A. 304, 89 Am. St. Rep. 359; Briesen- 
 meister v. Supreme Lodge, 81 Mich. 525, 45 
 N. W. 977 ; Grattan v. Ins. Co., 92 N. Y. 274, 
 44 Am. Rep. 372 (referred to in brief of coun- 
 sel, but not cited in the opinion of the court, 
 in McKinney v. R. Co., 104 N. Y. 352, 10 N. 
 E. 544) ; but a waiver by the plaintiff as to 
 the testimony of his own physicians does 
 not operate as a waiver of the testimony of 
 a physician called by the defendant who had 
 attended the plaintiff for tne same injuries 
 but at a different time; Metropolitan St. Ry. 
 Co. v. Jacobi, 112 Fed. 924, 50 C. C. A. 619. 
 
 A trial judge may properly refuse to 
 charge the jury that they might draw infer- 
 ences from a party's refusal to waive the 
 privilege with respect to his physician's tes- 
 timony ; Pennsylvania R. Co. v. Durkee, 147 
 Fed. 99, 78 C. C. A. 107, 8 Ann. Cas. 790; 
 Brackney v. Fogle, 150 Ind. 535, 00 N. E. 
 303 ; Wigm. Ev. § 2386 ; contra, Deutschmann 
 v. R. Co., 87 App. Div. 503, 84 N. Y. Supp. 
 887. 
 
 See Commercial Agency; Privileged Com- 
 munications ; Libel. 
 
 C0NFIRMATI0 (Lat. confirmare) . The 
 conveyance of an estate, or the communica- 
 tion of a right that one hath in or unto lands 
 or tenements, to another that hath the pos- 
 session thereof, or some other estate therein, 
 whereby a voidable estate is made sure and 
 unavoidable, or whereby a particular estate 
 is increased or enlarged. Shep. Touchst. 311; 
 2 Bla. Com. 325.
 
 CONFIRMATIO 
 
 595 
 
 CONFISCATE 
 
 Conftrmatio orescent tends and serves to 
 increase or enlarge a rightful estate, and so 
 to pass an interest 
 
 Conftrmatio diminuens tends or serves to 
 diminish and ahridge the services wherehy 
 the tenant holds. 
 
 Conftrmatio perficiens tends and serves to 
 confirm and make good a wrongful and de- 
 feasible estate, by adding the right to the 
 possession or defeasible seisin, or to make a 
 conditional estate absolute, by discharging 
 the condition. 
 
 CONFIRMATIO CHARTARUM (Lat con- 
 firmation of the charters). A statute 
 ed in the 25 Edw. I., whereby the I 
 Charter is declared to be allowed as the com- 
 mon law; all judgments contrary to it are 
 declared void ; copies of it are ordered to be 
 sent to all cathedral-churches and read twice 
 a year to the people; and sentence of ex- 
 communication is directed to be as constantly 
 denounced against all those that, by word or 
 deed or counsel, act contrary thereto or in 
 any degree infringe it. 1 Bla. Com. 128. 
 
 CONFIRMATIO PERFICIENS. A con- 
 firmation which makes valid a wrongful and 
 3ible title, or makes a conditional es- 
 tate, absolute. Shep, Touchst. 311 ; Black. 
 
 CONFIRMATION. A contract by which 
 that which was voidable is made firm and un- 
 avoidable. 
 
 A species of conveyance. 
 
 Where a party, acting for himself or by 
 a previously authorized agent, has attempted 
 to enter into a contract, but has done so in 
 an informal or invalid manner, he confirms 
 the act and thus renders it valid, in which 
 case it will take effect as between the par- 
 ties from the original making. See 2 Bou- 
 vier, Inst. nn. 206T-2069. 
 
 To make a valid confirmation, the party 
 must be apprized of his rights; and where 
 there has been a fraud in the transaction 
 he must be aware of it and intend to con- 
 firm his contract. See 1 Ball & B. 353 ; 2 
 Sch. & L. 486; 12 Ves. Ch. 373; 1 id. 215; 1 
 Atk. 301. 
 
 A confirmation does not strengthen a void 
 estate. For confirmation may make a void- 
 able or defeasible estate good, but cannot 
 operate on an estate void in law; Co. Litt. 
 295. The canon law agrees with this rule ; 
 and hence the maxim, qui conflrmat nihil 
 dat. Toullier, Dr. Civ. Fr. 1. 3, t. 3, c. 6, n. 
 47G. See Viner, Abr. ; Comyns, Dig.; Ayliffe, 
 Pand. *38G; 1 Chit. Pr. 315; Blessing v. 
 House's Lessee, 3 Gill & J. (Md.) 290; Love's 
 Lessee v. Shields, 3 lerg. (Teun.) 405; 9 Co. 
 142 c; Ratification. 
 
 CONFIRMEE. He to whom a confirma- 
 tion is made. 
 
 C N F I R M R. He who makes a confirma- 
 tion to another. 
 
 CO NF ISC ARE. To confiscate. 
 
 CONFISCATE. To appropriate to the use 
 of the state. 
 
 Especially used of the goods and property of alien 
 enemies found in a state in time of v. 
 et seq. Bona confiscata and forisfacta are said to 
 be the same (1 Bla. Com. 299), ami the reBult to the 
 individual is the same whether the propi rty be for- 
 i or confiscated ; but, as d !, an in- 
 
 dividual forfeits, a state coi goods or other 
 
 property. Used also as an adjective— forfeited. 1 
 Bla. Com. 299. 
 
 In International Law. It is I rule 
 
 that the property of the subjects of an i < my 
 found In the country may be appro] riated by 
 the government without notice, unless there 
 be a treaty to the contrary; Hall, Int. L. 
 397 : The Emulous, 1 Gall. 563, Fed. i 
 1,479; Ware v. Ilylton, 3 Dall. (U. S.) ' 
 1 L. Ed. 568. It has been frequently provid- 
 ed by treaty that foreign subjects should be 
 permitted to remain and continue their busi- 
 ness, notwithstanding a rupture between the 
 governments, so long as they conducted them- 
 selves innocently: and when there was no 
 such treaty, such a liberal permission has 
 been announced in the very declaration of 
 war. Vattel, 1. 3, c. 4, § 63. Sir M 
 Foster (Discourses on High Treason, pp. 
 185 6) mentions several instances of such 
 docl.; rations by the king of Great Britain; 
 and he says that alien enemies were thi 
 enabled to acquire personal chattels and to 
 maintain actions for the recovery of their 
 personal rights in as full a manner as alien 
 friends; 1 Kent 57. 
 
 In the United States, the broad principle 
 has been laid down "that war gives to the 
 sovereign full right to take the persons and 
 confiscate the property of the enemy, wher- 
 ever found. The mitigations of this rigid 
 rule which the policy of modern times has 
 introduced into practice will more or Less 
 affect the exercise of this right, but cannot 
 impair the right itself:'' Brown v. D. S., s 
 Cra. (U. S.) 122, ?» L. Ed. 504. Commercial 
 nations have always considerable property in 
 the possession of their neighbors; and when 
 war breaks out, the question what Shall be 
 done with enemies' property found in the 
 country is one rather of policy than of law, 
 and is properly addressed to the considera- 
 tion of the legislature, and not to courts of 
 law. The strict right of confiscation exists 
 in congress; and without a legislative act au- 
 thorizing the confiscation of enemies' prop- 
 erty, it cannot be condemned; 8 Cra. (U. 
 S.i 128, 3 L. Ed. 504. 
 
 Notwithstanding this positive statement of 
 the law, private property of enemy subjects 
 w.i< qoI confiscated during the wars of the 
 19th century, and it may safely be said that 
 an international custom prohibiting such 
 confiscation has grown up having nearly the 
 force of law. An exception is to be found in 
 the right of a belligerent to seize and make 
 use of such private property of enemy sub- 
 jects as may be of use in the conduct of the 
 war, upon payment of proper indemnity. On
 
 CONFISCATE 
 
 596 
 
 CONFISCATE 
 
 the other hand, public property, such as pro- 
 visions, ammunition, rolling stock of state 
 railroads, realizable securities, funds, etc., 
 of one belligerent in the territory of the oth- 
 er, is subject to seizure. See IV EL C. Art 
 53. 
 
 The claim of a right to confiscate debts 
 contracted by individuals in time of peace, 
 and which remain due to subjects of the 
 enemy in time of war, rests upon much the 
 same principle as that concerning the ene- 
 my's tangible property found in the country 
 at the commencement of the war. But it 
 is the universal practice to forbear to seize 
 and confiscate debts and credits. 1 Kent 64. 
 
 The right of confiscation exists as fully in 
 case of a civil war as it does when the war 
 is foreign, and rebels in arms against the 
 lawful government, or persons inhabiting the 
 territory exclusively within the control of the 
 rebel belligerents, may be treated as public 
 enemies. So may adherents, or aiders and 
 abettors of such a belligerent, though not 
 resident in such enemy's territory; Miller v. 
 U. S., 11 Wall. (U. S.) 269, 20 L. Ed. 135. 
 Proceedings under the Confiscation Act of 
 July 17, 1862, were justified as an exercise 
 of belligerent rights against a public enemy, 
 but were not, in their nature, a punishment 
 for treason. Therefore, confiscation being a 
 proceeding distinct from, and independent of, 
 the treasonable guilt of the owner of the 
 property confiscated, pardon for treason will 
 not restore rights to property previously con- 
 demned and sold in the exercise of belliger- 
 ent rights as against a purchaser in good 
 faith and for value ; Semmes v. U. S., 91 U. 
 S. 21, 23 L. Ed. 193. 
 
 A suit in confiscation is an action of en- 
 tirely different nature from a proceeding in 
 prize. Confiscation is the act of the sover- 
 eign against a rebellious subject Condemna- 
 tion as prize is the act of a belligerent 
 against another belligerent or against an of- 
 fending neutral. Confiscation may be effect- 
 ed by such means, either summary or arbi- 
 trary, as the sovereign expressing his will 
 through lawful channels, may please to adopt. 
 Condemnation as' prize can only be made in 
 accordance with principles of law recognized 
 in the common jurisprudence of the world. 
 Both are proceedings in rem, but confiscation 
 recognizes the title of the original owner to 
 the property which is to be forfeited, while 
 in prize the tenure of the property seized is 
 qualified, provisional and destitute of ab- 
 solute ownership ; The Peterhoff, Blatchf. 
 Pr. Cas. 620, Fed. Cas. No. 11,025. To con- 
 fiscate property seized upon land, resort 
 must be had to the common-law side of the 
 court; The Confiscation Cases, 20 Wall. (U. 
 S.) 110, 22 L. Ed. 320; prize proceedings are 
 always in admiralty; Winchester v. U. S., 14 
 Ct Cls. 48. 
 
 See, generally, Chitty, Law of Nations, c. 
 3; Marten, Law of Nat. lib. 8, c. 3, s. 9 ; 
 Burlainaqui, Pol. Law, part 4, c. 7; Vattel, 
 
 liv. 3, c. 4, § 63; Twiss, Law of Nations; 
 Wbeaton; Hall, International Law. 
 
 CONFITENS REUS. An accused person 
 who admits his guilt. Wharton. 
 
 CONFLICT OF LAWS. A contrariety or 
 opposition in the laws of states or countries 
 in cases where the rights of the parties, from 
 their relations to each other or to the sub- 
 ject-matter in dispute, are liable to be affect- 
 ed by the laws of both jurisdictions. 
 
 As a term of art, it also includes the deciding 
 •which law is in such cases to have superiority. It 
 also includes many cases where there is no opposi- 
 tion between two systems of law, but where the 
 question is how much force may be allowed to a 
 foreign law with reference to which an act has been 
 done, either directly or by legal implication, in the 
 absence of any domestic law exclusively applicable 
 to the case. 
 
 As to the most suitable term to apply to 
 this branch of the law, see Pkivate Interna- 
 tional Law. 
 
 Among the leading canons on the sub- 
 ject are these: the laws of every state af- 
 fect and bind directly all property, real or 
 personal, situated within its territory, all 
 contracts made and acts done and all per- 
 sons resident within its jurisdiction, and are 
 supreme within its own limits by virtue of 
 its sovereignty ; Milne v. Moreton, 6 Binn. 
 (Pa.) 361, 6 Am. Dec. 466; Green v. Van 
 Buskirk, 7 Wall. (U. S.) 151, 19 L. Ed. 109; 
 Minor v. Cardwell, 37 Mo. 354, 90 Am Dec. 
 390; Cowp. 208; 4T. R. 192. Ambassadors 
 and other public ministers while in the state 
 to which they are sent, and members of an 
 army marching through or stationed in a 
 friendly state, are not subject to this rule; 
 Crawford v. Wilson, 4 Barb. (N. Y.) 522; 
 U. S. v. Lafontaine, 4 Cra. C. C. 173, Fed. 
 Cas. No. 15,550. 
 
 Possessing exclusive authority, with the 
 above qualification, a state may regulate the 
 manner and circumstances under which prop- 
 erty, whether real or personal, in possession 
 or in action, within it, shall be held, trans- 
 mitted, or transferred, by sale, barter, or 
 bequest, or recovered or enforced ; the con- 
 dition, capacity, and ■ state of all persons 
 within it ; the validity of contracts and other 
 acts done there; the resulting rights and 
 duties growing out of these contracts and 
 acts; and the remedies and modes of admin- 
 istering justice in all cases ; Story, Confl. 
 Laws § 18 ; Vattel, b. 2, c. 7, §§ 84, 85. 
 
 Whatever force and obligation the laws 
 of one country have in another depends 
 upon the laws and municipal regulations of 
 the latter ; that is to say, upon its own prop- 
 er jurisprudence and polity, and upon its 
 own express or tacit consent; Huberus, lib. 
 1, t 3, § 2. 
 
 The power of determining whether, or how 
 far, or with what modification, or upon what 
 conditions, the laws of one state or any 
 rights dependent upon them shall be recog- 
 nized in another, is a legislative one. The 
 comity involved is a comity of the states, and
 
 CONFLICT OF LAWS 
 
 OUT 
 
 CONFLICT OF LAWS 
 
 not of the courts, and tbe judiciary must be 
 guided iu deciding the question by tbe prin- 
 ciple and policy adopted by the legislature; 
 Thompson v. Waters. 25 Mich. 214, 12 Am. 
 Rep. 243; Stack v. Cedar Co.. 151 Mich. 21, 
 114 N. W. 876, 10 L. K. A. (N. S.) 616, 14 
 Ann. Cas. 112. The contract in the latter 
 was made in Michigan, in which state 
 an Illinois corporation had been admitted to 
 do business. An Illinois statute provided 
 that no corporation should interpose the de- 
 fense of usury in any aetion. It was con- 
 tended that this disability imposed in the 
 state creating the corporation followed it 
 and attached to Its charter In Michigan. But 
 the court held that the restriction in Illinois 
 would not follow it Into Michigan so as to 
 prevent it from taking advantage of the 
 local statute against usury. 
 
 When a statute or the unwritten or com- 
 mon law of the country forbids the recogni- 
 tion of the foreign law, the latter is of no 
 force whatever. When both are silent, then 
 the question arises, which of the conflicting 
 laws is to have effect Each sovereignty 
 must determine for itself whether it will en- 
 force a foreign law; Finney v. Guy, 106 Wis. 
 250, 81' X. W. 595, 49 L. U. A. 486; Hunt v. 
 Whewell, 1-2 Wis. 33, 99 N. W. 599; Fox v. 
 'Telegraph-Cable Co., 138 Wis. 048, 120 X. W. 
 399, 28 L. R. A. ( X. S. | 490. It is a principle 
 universally recognized that the revenue laws 
 of one country have no force in another. 
 The exemption laws and laws relating to 
 married women, as well as the local statute 
 of frauds, and statutes authorizing distress 
 and sale for non-payment of rent, are not 
 recognized in another jurisdiction under the 
 principles of comity. Morgan v. Neville, 74 
 Pa. 52 : Waldron v. Ritchings, 3 Daly (N. 
 Y.) 2S8; Siegel v. Robinson, 50 Pa. 19, 93 
 Am. Dec. 775; Ross v. Wigg, 34 Hun (N. Y.) 
 192; Ludlow v. Van Rensselaer, 1 Johns. (N. 
 Y.) 95. 
 
 The statutes of one state giving a right of 
 action to enforce a penalty have no force in 
 another; Huntington v. Attrill. 140 U. S. 
 657, 13 Sup. Ct. 224, 30 L. Ed. 1123 ; Russell 
 v. R. Co., 113 Cal. 258. 45 Pac. 323, 34 L. R. 
 A. 747; Ferguson v. Sherman, 110 Cal. 169, 
 47 Pac. 1023, 37 L. R. A. (.22 ; Commercial 
 Nat. Bank v. Kirk. 222 Pa. 5157, 71 Atl. 1085, 
 12S Am. St. Rep. 823. 
 
 So rights of action arising under foreign 
 bankrupt, insolvent, or assignment laws are 
 not recognized by a si ate when prejudicial to 
 the interests of its own citizens; Warner v. 
 Jaffray, 96 X. Y. 24 I, 18 Am. Rep. 616; In re 
 Waite. 00 N. Y. 443, 2 X. E. 440; Barth v. 
 Backus, 140 N. Y. 230, 35 X. E. 125, 23 L. R. 
 A. 47, 37 Am. St. Rep. 545; Giman v. Lock- 
 wood, 4 Wall. (U. S.) 409, 18 L. Ed. 432. 
 
 A remedy special to a particular foreign 
 state is not, by any principle of comity en- 
 forceable elsewhere and must be applied 
 within the jurisdiction of the domicile of the 
 corporation ; Fowler v. Lamson, 146 111. 472, 
 
 ::i X. E. 932, 37 Am. St. Rep. 163; Young v. 
 Farwell, 139 111. 326, 28 N. I Cuttle v. 
 
 Bank, 161 111. 407, 44 X. E. 984, 34 L. K. A. 
 7.">u; National Bank of Auburn v. Dillingham, 
 117 X. V. 603, 42 X. F. 338, 49 Am. 
 G92; Marshall v. Sherman, 148 N. v. o. 42 
 X. E. 419, 34 L. R. A. 757, 51 Am. St B 
 1 15 1 . 
 
 Generally, force and effect will be gi 
 by any state to foreign laws In i 
 from the transactions of the pan; 
 I licable, unless they aff< i inj 
 own citizens, violate her express ena< 
 ments, or are contra >ires. 
 
 Tbe broad rule as to contracts is thus 
 staled by Wharton (Confl. Laws § 401): 
 "Obligations, In respect to the mode of their 
 inization, are subject to the rule locus 
 regit actum; in respect to their interpreta- 
 tion, to tbe lex loci contractus; in respect to 
 tbe mode of their performance, to tbe law 
 of tbe place of their performance. But the 
 lex fori determines when and how such laws, 
 when foreign, are to be adopted, and in all 
 - not specified above, - the ap- 
 
 tory law." This rule is quoted by Hunt, 
 J., in Scudder v. Bank, 01 U. S. 411, 2.J L. 
 Ed. 245. In a later part of his opinion, in 
 the same case, he says: ".Matters bearing 
 upon the execution, the interpretation, and 
 the validity of a contract are determined by 
 the law of the place where the contract is 
 made. Matters connected with its perform- 
 ance are regulated by the law prevailing at 
 the place of performance. Matters respect- 
 ing the remedy, such as the I 
 admissibility of evidence, statutes of limita- 
 tions, depend upon the law of the pla e 
 where the suit is brought. A careful con- 
 sideration of tbe decisions of this country 
 and of England will sustain ft 
 cited in Milliken v. Pratt. 125 Mass. 374, 28 
 Am. Rep. 241, which is in turn cited in I'rit- 
 chard v. Norton, 106 r. s. 124, 1 Sup. Ct 
 102. 27 L. Ed. 104, where, in a suit on a bond 
 ,!ed In New York to Indemnify the 
 plaintiff's intestate as surety in an appeal 
 bond in a suit in Louisiana, the court defti 
 the "scat of the obligation" and held the law 
 applicable to be the lea loci >• I itionti which 
 was the law of Louisiana; ft lex loci con- 
 tractus was said to be a confusing phrase, ' 
 because it is in reality the law not of the 
 place of execution but of the seat of the ob- 
 ligation, and that might be either the place 
 Of i secution or the place of performance. 
 Mr. Wharton expressed the rule in the 
 lowing terms, in the second edition (1881 I 
 his Confl. Laws § 401 ; "A contract, so far as 
 concerns its formal making, is to he deter- 
 mined by tbe place where it is solemnized, 
 unless the lea situs of property disposed of 
 otherwise requires; so far as concerns its 
 Interpretation, by the law of the place where 
 its terms are settled, unless the parties had 
 tbe usages of another place iu view; so far 
 as concerns the remedy, by the law of the
 
 CONFLICT OF LAWS 
 
 598 
 
 CONFLICT OF LAWS 
 
 place of suit ; and so far as concerns its per- 
 formance, by the law of the place of perform- 
 ance." 
 
 The criterion by which to ascertain wheth- 
 er a particular inquiry relates to the sub- 
 stance of tbe contract or the remedy merely 
 is said to be : Suppose the legislature of the 
 locus contractus to enact the law of the 
 forum, making it applicable to the existing 
 contract. If the result is that the obligation 
 of the contract is eitheij increased or im- 
 paired thereby, then the point to which the 
 law of the forum relates is part of the obliga- 
 tion or substance of the contract and is not 
 merely a matter of remedy, and the lex loci, 
 not the lex fori, should control. If, on the 
 other hand, the result is that the obligation 
 of tbe contract is not at all affected, being 
 neither increased nor diminished, then the 
 inquiry relates to a matter of remedy only, 
 and the lex fori should govern. 16 Harv. L. 
 Rev. 262. 
 
 A contract (to pay money) was made in 
 Dakota by a married woman and was pay- 
 able there. The Dakota law permitted her 
 to contract and to sue, and be sued as though 
 she were unmarried. She owned land in 
 Missouri which the Dakota creditor sought 
 to attach. By the law of Missouri (lexi fori) 
 a married woman (for purposes of this case) 
 was competent to be sued personally, but her 
 property could not be attached. The ques- 
 tion was whether the particular remedy of 
 attachment related to the obligation of the 
 contract (to be governed by Dakota law) or 
 to the remedy merely, in which case the law 
 of Missouri should control. By a divided 
 court it was held that the Missouri law 
 should control; Ruhe v. Buck, 124 Mo. 178, 
 27 S. W. 412, 25 L. R. A. 178, 46 Am. St. Rep. 
 439. 
 
 Where an action was brought in Massachu- 
 setts upon a contract made in New York to 
 convey land situated in Massachusetts, it 
 was held that the measure of damages for 
 the breach of contract was part of the ob- 
 ligation of the contract to be determined by 
 New York law, not a mere matter of remedy 
 to be controlled by the lex fori; Atwood v. 
 Walker, 179 Mass. 514, 61 N. E. 58. 
 
 Prof. Beale (23 Harv. L. Rev.) considers 
 very fully the laws governing the validity 
 of contracts and reaches substantially the 
 following results (here summarized by per- 
 mission) : 
 
 Story states as a general principle that 
 the law of the place of making governs, but 
 there is an exception where the contract is 
 to be elsewhere performed, and hence the law 
 of the place of performance governs. The 
 rule that the intention of the parties shall 
 govern may be directly traced to the dictum 
 of Lord Mansfield in Robinson v. Bland, 2 
 Burr. 1077, and was derived by him from 
 the doctrines of the Civil Law. The rule 
 that the law of the place of performance gov- 
 erns may be traced to the statement of Judge 
 
 Story in his Conflict of Laws § 280, often 
 repeated verbatim in the cases ; and it was 
 on his part a restatement of his opinion in 
 Van Reimsdyk v. Kane, 1 Gall. 371, 375, Fed. 
 Cas. No. 16,S71. The present tendency 
 greatly stimulated by the late English and 
 federal cases, is toward the adoption of the 
 law intended by the 'parties. Though the 
 greater number of states still profess ad- 
 herence to Judge Story's rule, it is being 
 superseded by the other rule. In enumerat- 
 ing the states which accept one or the other 
 of the principal rules, it must be pointed out 
 that in several the question appears not to 
 have arisen ; in others, the decisions or dicta 
 are not sufficiently clear to justify including 
 the state in either list. 
 
 Cases adopting the law of the place of 
 making: Wolf v. Burke, 18 Colo. 264, 32 
 Pac. 427, 19 L. R. A. 792; Garrigue v. Kellar, 
 164 Ind. 676, 74 N. E. 523, 69 L. R. A. 870, 
 108 Am. St. Rep. 324 ; New York Security & 
 Trust Co. v. Davis, 96 Md. 81, 53 Atl. 669; 
 Poison v. Stewart, 167 Mass. 211, 45 N. E. 
 737, 36 L. R. A. 771, 57 Am. St. Rep. 452; 
 Gray v. Telegraph Co., 108 Tenn. 39, 64 S. 
 W. 1063, 56LE.A. 301, 91 Am. St. Rep. 706 ; 
 Galloway v. Ins. Co., 45 W. Va. 237, 31 S. 
 E. 969. 
 
 Cases adopting the law of the place of per- 
 formance : Southern Exp. Co. v. Gibbs, 155 
 Ala. 303, 46 South. 465, 18 L. R, A. (N. S.) 
 S74, 130 Am. St. Rep. 24 ; Midland Valley R. 
 Co. v. Mfg. Co., 80 Ark. 399, 97 S. W. 679, 10 
 Ann. Cas. 372 ; Progresso S. S. Co. v. Ins. 
 Co., 146 Cal. 279, 79 Pac. 967; Odom v. Se- 
 curity Co., 91 Ga. 505, 18 S. E. 131 ; Spinney 
 v. Chapman, 121 la. 38, 95 N. W. 230, 100 
 Am. St. Rep. 305; Alexander v. Barker, 64 
 Kan. 396, 67 Pac. 829; Western Union Tel. 
 Co. v. Eubanks, 100' Ky. 591, 38 S. W. 1068, 
 36 L. R. A. 711, 66 Am. St. Rep. 361; Lynch 
 v. Postlethwaite, 7 Mart. (O. S.) 69, 12 Am. 
 Dec. 495 ; Stanton v. Harvey, 44 La. Ann. 
 511, 10 South. 778; Emerson Co. v. Proctor, 
 97 Me. 360, 54 Atl. 849 ; Arbuckle v. Reaume, 
 96 Mich. 243, 55 N. W. 808; Limerick Nat. 
 Bank v. Howard, 71 N. H. 13, 51 Atl. 641, 93 
 Am. St. Rep. 489; Brownell v. Freese, 35 N. 
 J. L. 285, 10 Am. Rep. 239 ; Montana Coal & 
 Coke Co. v. Coal & Coke Co., 69 Ohio St. 351, 
 69 N. E. 613 ; Bennett v. Loan Ass'n, 177 Pa. 
 233, 35 Atl. 684, 34 L. R. A. 595, 55 Am. St. 
 Rep. 723; First Nat. Bank v. Doeden, 21 S. 
 D. 400, 113 N. W. 81. 
 
 Cases adopting the law intended by the 
 parties: Beggs v. Bartels, 73 Conn. 132, 46 
 Atl. 874, 84 Am. St. Rep. 152; Bursou v. 
 Vogel, 29 App. D. C. 396 ; Illinois Cent. R. Co. 
 v. Beebe, 174 111. 13, 50 N. E. 1019, 43 L. R. 
 A. 210, 66 Am. St. Rep. 253; Security Co. of 
 Hartford, Connecticut v. Eyer, 36 Neb. 507, 
 54 N. W. 838, 38 Am. St. Rep. 735 ; Wilson v. 
 Mill Co., 150 N. Y. 314, 44 N. E. 959, 55 Am. 
 St. Rep. 680; Williams v. Mutual Reserve 
 Fund Life Ass'n, 145 N. C. 128, 58 S. E. 802, 
 13 Ann. Cas. 51; U. S. Savings & Loan Co.
 
 CONFLICT OF LAWS 
 
 599 
 
 CONFLICT OP LAWS 
 
 v. Shain, 8 N. D. 136, 77 N. W. 10O0 ; Gallet- 
 ley v. Strickland, 74 S. C. 394, 54 S. E. 570; 
 Metropolitan Life Ins. Co. v. Bradley, 98 Tex. 
 230, 82 S. W. 1031, 08 L. R. A. 509; Union 
 Central Life Ins. Co. v. Pollard, 94 Va. 140, 
 20 S. E. 421, 30 L. R. A. 271. 64 Am. St Rep. 
 715; Benjamin Lank v. Doherty, 42 Wash. 
 317, 84 Pac. 872, 4 L. R. A. (N. S.) 1191, 11 1 
 Am. 81. Rep. 11'::; Brown v. Gates, 120 Wis. 
 349, !)7 N. W. 221, 98 X. W. 205, 1 Ann. ('as. 
 85; and, in usury cases, also (lie federal 
 courts and Alabama, Georgia, Kansas, .Mis- 
 souri, Mississippi, Ohio, a ml Tennessee. 
 
 The Federal Cases. /. riace of making 
 governs; Fidelity MuL Life Ass'n v. Jeffords, 
 107 Fed. 402, 46 C. a A. 377, 53 L. R. A. 193; 
 Robinson v. Brick Co., 127 Fed. 804, 02 C. C. 
 A. 4S4 ; thus the place of making is adopted 
 as opposed to the law of the domicil of the 
 parties: Northwestern 8. S. Co. v. Ins. Co., 
 101 Fed. 10G; or to the place from which the 
 offer is sent ; Equitable Life Assur. Soc. of 
 United States v. Trimble, S3 Fed. 85, 27 C. 
 C. A. 104 ; or to the place where a document 
 is signed, prior to its taking effect elsewhere 
 as an obligation; Phipps v. Harding, 70 Fed. 
 408, 17 C. C. A. 203, 30 L R. A. 513. 
 
 2. In a small number of cases, it has been 
 held that the law of the place of perform- 
 ance governs the validity of the contract; 
 Smith v. Ins. Co., 5 Fed. 582; Pacific States 
 Savings, Loan & Bldg. Co. v. Green, 123 Fed. 
 43, 59 C. C. A. 107; Berry v. Chase, 140 Fed. 
 025, 77 C. C. A. 101; but where there is 
 more than one place of performance, it has 
 been held that the parties ex necessitate 
 must be referred to the law of the place of 
 making; Morgan v. R. Co., 2 Woods 244, 
 Fed. Cas. No. 9,804. 
 
 8. The place by the law of which the con- 
 tract is valid: In usury cases it has often 
 been held that, if the place of performance 
 would hold an agreement void for usury, the 
 law of the place of making may be resorted 
 to for making the contract valid ; Sturdi- 
 vant v. Bank, 00 Fed. 730, 9 C. C. A. 256; 
 Andruss v. Saving Ass'n, 94 Fed. 575, 36 C. 
 C. A. 336 ; Dygert v. Trust Co., 94 Fed. 913, 
 37 C. C. A. 389. 
 
 k. Flace intended by the parties: In some 
 cases the court seeks to find the intention of 
 the parties, and governs the contract by that; 
 Wayman v. Southard, 10 Wheat. (U. S.) 1, 6 
 L. Ed. 253; Gibson v. Ins. Co., 77 Fed. 501. 
 This is the rule most commonly laid down 
 in the usury cases, where the parties are pre- 
 sumed to intend the law of the place of 
 making or of the place of performance, ac- 
 cording to which would make the contract 
 valid: Cromwell v. Sac County, 90 U. S. 51, 
 124 L. Ed. 0N1 : Matthews v. Murehison, 17 
 Fed. 700; so in other than usury cases: Hub- 
 hard v. Lank. 72 Led. 234, 18 C. (\ A. 525 : 
 hut where both laws would make the agree- 
 ment usurious, the intention of the parties is 
 allowed no weight, and the law of the place 
 of making governs; Andrews v. Pond, 13 
 
 Pet. (U. S.) 05, 10 L. Ed. <J1 ; Heath v. Gris- 
 wold, 5 Fed. 573, 18 I The law of 
 
 the place of m. umed, in 
 
 to he that In rties; 
 
 Liverpool & (',. \V. S. I o. v. Ins. I 
 S. 397, 9 Sup. Ct. 409, 32 L. Id. 7-s : Mu- 
 tual Life Ins. Co. v. Cohen, 17!) 1 
 Sup. ct. 106, 45 L. lid. 181 ; The M 
 P( d. 624, 9 C. C. A. 101, 23 L. L. A. 7 
 a few other cases, the law of the place of 
 performance is presumed to he that Lnti 
 by the parties; Hall v. Cordell, J 1 _: 
 11G, 12 Sup. Ct. 154, 35 I.. Ed. 956; Johnson 
 v. Norton Co., 159 Fed. 301, 80 C. O. A 
 When the parties expressly agree that the 
 contract shall he subject to a certain law, it 
 has been intimated, though never ex] 
 decided by the Supreme Court, that the court 
 will give effect to this intention ; Mutual 
 Life Ins. Co. v. Hill, 193 U. S. 551, 24 Sup. 
 Ct. 538, 48 L. Ed. 788; hut no such stipula- 
 tion will he given effect where it is regarded 
 as against public policy; Lewisohn v. Steam- 
 ship Co., 50 Fed. 002; Botany Worsted Mills 
 v. Knott, 70 Fed. 582 ; or where the parties 
 would thereby avoid the provisions of a stat- 
 ute of the place of making; Fowler v. Trust 
 Co., 141 U. S. 3S4, 12 Sup. Ct. 1, 35 L. Ed. 
 786; Mutual Life Ins. Co. v. Hathaway, 100 
 Fed. 815, 45 C. C. A. 655; Albro v. Ins. Co., 
 119 Fed. 029; but a legislative enactment 
 which declares a public policy and prohib- 
 its its violation has, to some extent, an ex- 
 tra-territorial effect; thus, a prohibition in 
 a decree of divorce against the re-marriage 
 of the guilty party during the lifetime of the 
 other has, in general, no extra-territorial 
 effect; Dimpfel v. Wilson, 107 Md. 329, 68 
 Atl. 501, 13 L. R. A. (N. S.) 1180. 15 Ann. 
 Cas. 753; Van Voorhis v. Brintnall, 86 X. Y. 
 18, 40 Am. Rep. 505 ; Thorp v. Thorp, 90 N. 
 Y. 002, 43 Am. Rep. 1S9; Moore v. liegeman. 
 92 N. Y. 521, 44 Am. Rep. 408; yet where 
 a statute forbids such remarriage within a 
 specified time, and the persons go to another 
 state for the express purpose of evading the 
 law of their domicil, contract a marriage in 
 such state, valid under its laws, and return 
 to the state of their domicil. such marriage 
 will there be held invalid as against public 
 policy and good morals; Lanham v. Lanham, 
 L36 Wis. 360, 117 X. W. 7S7. 17 L. L. A. i\. 
 S.) 804, 128 Am. St. Rep. 1085; and where 
 the state statutes prohibit the guilty party 
 in a divorce granted for adultery from mar- 
 rying the co-respondent, during the lifetime 
 of the innocent spouse, a marriage in anoth- 
 er State, valid according to its Lavs, will not 
 be recognized in the state declaring such a 
 marriage to be against its public policy and 
 good morals; I'ennegar v. State, 87 Tenn. 
 244, 10 S. W. 305, 2 L. L. A. 703, !<» Am. St. 
 148; Stall's Estate, 1S3 Pa. 625, :::» Atl. 
 16, 39 L. R. A. 539, 63 Am. St Rep. 77r, ; so 
 where a statute prohibited the marriage of 
 negroes and white persons, such a marriage.
 
 CONFLICT OF LAWS 
 
 GOO 
 
 CONFLICT OF LAWS 
 
 when made outside of the state and valid 
 where performed, was held void in the state 
 enacting it ; Dupre v. Boulard's Ex'r, 10 La. 
 Ann. 411 ; Kinney v. Com., 30 Gratt. (Va.) 
 858, 32 Am. Rep. 690; so where an English 
 statute provided that a marriage with a de- 
 ceased wife's sister should be invalid, a mar- 
 riage made outside of England, and lawful 
 where it was celebrated, was held void in 
 England; 9 H. L. Cas. 193 ; so where there 
 was statutory prohibition of the marriage of 
 first cousins, such a marriage was held void 
 where the parties contracted a valid mar- 
 riage elsewhere and returned to the state 
 prohibiting it; Johnson v. Johnson, 57 Wash. 
 89, 10G Pac. 500, 26 L. R. A. (N. S.) 179. 
 
 A like provision in the Civil Code of South 
 Dakota was held not to warrant the annul- 
 ment of a marriage contracted in California 
 between first cousins who at the time of the 
 marriage were citizens of California; Garcia 
 v. Garcia, 25 S. D. 645, 127 N. W. 586, Ann. 
 Cas. 1912C, 621. 
 
 A statute»declared that re-marriage by one 
 of the parties to a, divorce within a given 
 time, either within or without the state, 
 should be void; after a divorce within the 
 state, one of the parties within the prohibit- 
 ed time went to a foreign country and there 
 acquired a domicil and contracted a mar- 
 riage valid by its laws ; six years after she 
 returned to -the state, where she was di- 
 vorced and married again. On a prosecution 
 for bigamy, her foreign marriage was held 
 valid ; State v. Fenn, 47 Wash. 561, 92 Pac. 
 417, 17 L. R. A. (N- S.) S00, on the ground 
 that her domicil was at the time in such for- 
 eign country. 
 
 Real Estate. In general, the mode of 
 conveying, incumbering, transmitting, devis- 
 ing, and controlling real estate is governed 
 by the law of the place of situation of the 
 property; Bronson v. Lumber Co., 44 Minn. 
 348, 46 N. W. 570; Cochran v. Benton, 126 
 Ind. 58, 25 N. E. 870 ; U. S. v. Crosby, 7 Cr. 
 (U. S.) 115, 3 L. Ed. 287; Oakey v. Bennett, 
 11 How. (U. S.) 33, 13 L. Ed. 593 ; Augusta 
 Ins. & Banking Co. v. Morton, 3 La. Ann. 
 418; 14 Ves. 541; 4 T. R. 182; Fall v. Eas- 
 tin, 215 U. S. 1, 30 Sup. Ct. 3, 54 L. Ed. 65, 
 23 L. R. A. (N. S.) 924, 17 Ann. Cas. 853; 
 Brine v. Ins. Co., 96 U. S. 627, 24 L. Ed. 85S. 
 See Lex Rei Sit^e. 
 
 Perhaps an exception may exist in the case 
 of mortgages ; Bank of England v. Tarleton, 
 23 Miss. 175 ; Dundas v. Bowler, 3 McLean 
 397, Fed. Cas. No. 4,141. But the point can- 
 not be considered as settled; 1 Washb. R. P. 
 524 ; Story, Confl. Laws § 363 ; Westl. Priv. 
 Int. Law 75. It is said by Wharton (Confl. 
 Laws § 36S) that the law governing the mort- 
 gage, as such, is the law of situs of the land 
 which the mortgage covers ; but the debt is 
 governed by the law of the domicil of the 
 party to whom it is due, no matter where* 
 the property be situated ; see Townsend v. 
 Riley, 46 N. H. 300 ; Oregon & W. Trust Inv. 
 
 Co. v. Rathburn, 5 Sawy. 32, Fed. Cas. No. 
 10,555; Cope v. Wheeler, 41 N. T. 313 ; Post 
 v. Bank, 138 111. 559, 28 N. E. 97S ; Pen field 
 v. Tower, 1 N. D. 216, 46 N. W. 413; and 
 that when the money is invested on the land 
 for which the mortgage is given, the lex sites 
 prevails. For the purposes of taxation a 
 debt has its situs at the domicil of the cred- 
 itor; Hauenstein v. Lynham, 100 U. S. 490, 
 25 L. Ed. 628. 
 
 Personal Property. For the general rules 
 as to the disposition of personal property, see 
 Domicil. Bills of exchange and promissory 
 notes are to be governed, as to validity and 
 interpretation, by the law of the place of 
 making, as are other contracts. The resi- 
 dence of the drawee of a bill of exchange, 
 and the place of making a promissory note 
 where no other place of payment is speci- 
 fied, is the locus contractus; 10 B. & C. 21; 
 4 C. & P. 35 ; Bissell v. Lewis, 4 Mich. 450 ; 
 Davis v. Clemson, 6 McLean, 622, Fed. Cas. 
 No. 3,630; Barney v. Newcomb, 9 Cush. 
 (Mass.) 46; Peck v. Hibbard, 26 Vt. 698, 6 V 2 
 Am. Dec. 605; Wilson v. Lazier, 11 Gratt. 
 (Va.) 477; Lizardi v. Cohen, 3 Gill (Md.) 430; 
 Fessenden v. Taft, 65 N. H. 39, 17 Atl. 713 ; 
 Stevens v. Gregg, 89 Ky. 461, 12 S. W. 775; 
 see Raymond v. Holmes, 11 Tex. 54 ; Fra- 
 zier v. Warfield, 9 Smedes & M. (Miss.) 220, 
 where the place of address is said to be the 
 place of making. As between the drawee and 
 drawer and other parties (but not as between 
 an indorser and indorsee, Everett v. Ven- 
 dyres, 19 N. Y. 436; but see Peck v. Mayo, 
 14 Vt. 33, 39 Am. Dec. 205) ; each indorse- 
 ment is considered a new contract; Young 
 v. Harris, 14 B. Monr. (Ky.) 556, 61 Am. Dec. 
 170 ; Cook v. Litchfield, 5 Sandf. (N. Y.) 330 ; 
 Cox v. Adams, 2 Ga. 158; Dundas v. Bow- 
 ler, 3 McLean 397, Fed. Cas. No. 4,141. On 
 a bill of exchange drawn in one state and 
 payable in another, the time within which 
 notice of protest must be mailed is deter- 
 mined by the law of the latter state; Brown 
 v. .Jones, 125 Ind. 375, 25 N. E. 452, 21 Am. 
 St. Rep. 227. In case of commercial paper 
 the notice required to bind drawer and in- 
 dorser is determined by law of place of draw- 
 ing and indorsing. See Lex Loci. A stat- 
 ute of limitations of a foreign state provid- 
 ing that an action on a note shall be brought 
 within a certain time after the cause of ac- 
 tion accrues bars the debt itsel'f if not 
 brought within the time limited, and may be 
 pleaded in bar of an action brought on the 
 note in another state; Rathbone v. Coe, 6 
 Dak. 91, 50 N. W. 620. See MacNichol v. 
 Spence, 83 Me. 87, 21 Atl. 748. Place of pay- 
 ment governs as to all matters ' connected 
 with payment; Pritchard v. Norton, 106 U. 
 S. 124, 1 Sup. Ct. 102, 27 L. Ed. 104; Tar- 
 box v. Childs, 165 Mass. 408, 43 N. E. 124. 
 
 The better rule as to the rate of interest 
 to be allowed on bills of exchange and prom- 
 issory notes, where no place of payment is 
 specified and no rate of interest mentioned.
 
 CONFLICT OF LAWS 
 
 GUI 
 
 CONFLICT OF LAW'S 
 
 seems to be the rate of the lex loci; 5 C. & 
 F. 1, 12; Slacuni v. Poinery, 6 Cra. (U. S.) 
 221, 3 L. Ed. 205 ; The Star, 3 Wheat. (U. S.) 
 101, 4 L. Ed 338 ; James v. Allen, 1 Dall. 
 (Pa.) 191, l L. Ed. 93; Bawley v. Sloo, 12 
 La. Ann. 815. And see Friend v. Wilkinson, 
 9 Gratt. (Va.) 31; Buck v. Little, 24 Miss. 
 463 ; Trice v. rage & Bacon, 24 Mo. 65 ; 1 
 Pars. Contr. 23S: Cope v. Alden, 53 Barb. 
 (N. Y.) 350; Campbell v. Nichols, 33 N. J. L. 
 81; The- Star, 3 Wheat (U. S.) 101, 4 L Ed. 
 338. The damages recoverable on a bill of 
 exchange not paid are those of the place 
 where the plaintiff is entitled to reimburse- 
 ment, in the United States, these are gen- 
 erally fixed by statute; Hendricks v. Frank- 
 lin, 4 Johns. (N. Y.) 110; Grimshaw v. Ben- 
 der, 6 Mass. 157; Smith v. Shaw, 2 Wash. 
 C. C. 167, Fed. Cas. No. 13,107; Grant v. 
 Healey, 3 Sumn. 523, Fed. Cas. No. 5,696. 
 
 ere a place of payment is specified, the 
 interest of that place must be allowed; 
 French v. French, 12G Mass. 3G0 ; Pe< 
 Mayo, 14 Vt. 33, 39 Am. Dec. 205; Pomeroy 
 v. Ainsworth, 22 Barb. (N. Y.) US; Dickin- 
 son v. Edwards, 77 N. Y. 573, 33 Am. Rep. 
 G71. See Fanning v. Consequa, 17 Johns. 
 (N. Y.) 511, S Am. Dec. 442; except that 
 when a contract is made in one state, to be 
 performed in another, parties may contract 
 for the legal rate of interest allowable in 
 either state, provided such contract is enter- 
 ed into in good faith, and not merely to 
 avoid the usury laws; Depau v. Humphreys, 
 8 Mart. N. S. (La.) 1; Townsend v. Riley, 
 46 N. H. 300; Miller v. Tiffany, 1 Wall. (U. 
 S.) 310, 17 L. Ed. 510; Berrien v. Wright, 
 26 Barb. (N. Y.) 213 ; Kilgore v. Dempsey, 25 
 Ohio St. 413, 18 Am. Rep. 306; Arnold v. 
 Potter, 22 ia. 194; Brownell v. Freese, 35 
 N. J. L. 285, 10 Am. Rep. 239. See Odom v. 
 Security Co., 91 Ga. 505, IS S. E. 131 ; con- 
 tra, Story, Confl. Laws § L'9S. A note made 
 in one state and payable in another, is not 
 subject to the usury laws of the latter state, 
 if it is valid in that respect in the state 
 where it was made; Matthews v. Paine, 47 
 Ark. 54, 14 S. W. 463; Brewster v. Lyndes, 
 2 Miles (Pa.) 185. 
 
 Chattel tuorigages valid and duly regis- 
 tered under the laws of the state in which 
 the property is situated at the time of the 
 mortgage, will be held valid in another state 
 to which the property is removed, although 
 the regulations there are different; Bank of 
 United states v. Lee, 13 Pet (U. S.) 107, 10 
 L. Ed. 81; Feurt v. Rowell, 62 Mo. 524; 
 Barker v. Stacy, 25 Miss. 471; Kanaga v. 
 Taylor, 7 Ohio St. 134, 70 Am. Dec. 62: Mar- 
 tin v. Hill, 12 Barb. (N. Y.) 631; but see 
 Handley v. Harris, 48 Kan. 606, 29 Pac. 1145, 
 17 L. R. A. 703, 30 Am. St Rep. 322 ; Clough 
 v. Kyne, 40 111. App. 234; Green v. Van 
 Buskirk, 7 Wall. (U. S.) 140, 19 L. Ed. 109; 
 and it will be enforced in the state to which 
 the property has been removed, although it 
 
 would have been invalid if made in that 
 
 state; Smith v. Hut 383; but 
 
 it is said by Wharton 
 
 that the law in regard to chattel 
 
 is governed by the lex rci tsitw; that a lien 
 
 is extinguished when goods are taken from 
 
 the place where the lien 
 
 whore such a lien is not recognized; 
 Whart Confl. Laws § 318; M • abe v. Bly- 
 myre, 9 Phila. (Pa.) 615 (where a i 
 
 age made in Maryland was held in- 
 valid in Pennsylvania a fide 
 purchaser without notice); and a Lou; 
 court refused to enforce a chattel mor 
 made in another state, such mortgages being 
 
 .n in Louisiana; Delop v. Win.: 
 Randolph, 26 La. Ann. 185. 
 
 The law of the alius governs a mortgage 
 of * battels in one state, executed in anoth- 
 er: Rorer, int. St. L. 9 f; at. Mortg. 
 \ 305; Clark v. Tarbell, 58 X. H. 88; Green 
 v. Van Buskirk, 7 Wall. (U. S.) 139. 19 L. 
 Ed. 109; Denny v. Faulkner, 22 Kai 
 
 [ron Works v. Warren, 76 End. 512, 
 40 Am. Rep. 258; Tyler v. Strang. 21 Barb. 
 (X. Y.) 198; contra, Runyon v. Groshon, 12 X. 
 J. Eq. SO; Blystone v. Burgett, 10 Ind. 28, 
 68 Am. Dec 658. The same is true in the 
 case of conditional sales; Langworthy v. 
 Little. 12 Cush. (Mass.) 109; Hervey i 
 com. .tive Works. 93 U. S. 664, 23 L. Ed, 1003; 
 Cleveland Machine Works v. Lang. »J7 X. II. 
 348. 
 
 The lex fori determines the remedies on 
 the mortgage ; Ferguson v. Clifford, ."'.7 X. II. 
 86; contra. Story, Confl. Laws § 402; Mum- 
 ford v. Canty, 50 111. 370, 99 An 
 (where there appears to have been n 
 See Wattson v. Campbell, 38 X. Y. 153; where 
 a mortgage on a ship, made and shown to 
 be invalid in Pennsylvania, was hold invalid 
 in Xew York; Beaumont v. Yeannan, S 
 Humphr. (Tenn.) 5-1'J. 
 
 The registration of chattel mortgages and 
 transfer of government and local stocks are 
 frequently made subjects of positive law, 
 which then suspends the law of the domicil. 
 
 Where the mortgagor of chattels removes 
 with them to another state, the morl 
 to preserve his rights, need not again record 
 the mortgage in such other si an v. 
 
 Stimson, 32 Minn. 377, 20 X. W. 364; I 
 son v. Clifford, 37 X. II. S7 : Feurt v. Row- 
 ell. 62 Mo. 524; Parr v. Brady, .".7 X. J. L. 
 201. But in Alabama it must be re 
 to preserve its validity; Johnson v. Hughes, 
 89 Ala. 588, 8 South. 147. 
 
 As to whether such mortgages will be iv- 
 1 in preference to claims of citizens 
 of the state into which the property is re- 
 ft, it is held that they will; Jones v. 
 Taylor, 30 Vt -1-. overruling Skiff v. Solace, 
 23 Vt 279; Kanaga v. Taylor, 7 Ohio St 
 134, 70 Am. Dec 62; Martin v. mil, 12 
 Barb. (N. Y.) 631; Beaumont v. Yeatnian, S 
 Humphr. (Tenn.) 542. A chattel mortgage
 
 CONFLICT OF LAWS 
 
 GU2 
 
 CONFLICT OF LAWS 
 
 valid in the state where executed without 
 change of possession protects the property 
 mortgaged against an attachment in Ver- 
 mont, though in the possession of the mort- 
 gagor; Taylor v. Eoardman, 25 Vt 5S1 ; Nor- 
 ris v. Sowles, 57 Vt. 360. 
 
 Questions of priority of liens and other 
 claims are, in general, to be determined by 
 the lex rei sitcc even in regard to personal 
 property ; Harrison v. Sterry, 5 Cra. (U. S.) 
 2S9, 3 L. Ed. 104 ; Olivier v. Townes, 2 Mart 
 N. S. (La.) 93 ; In re Miller's Estate, 3 Rawle 
 (Pa.) 312, 24 Am. Dec. 345 ; Hammond v. Sto- 
 vall, 17 Ga. 491 ; Walker v. Roberts, 4 Rich. 
 (S. C.) 561 ; Trapnall v. Richardson, 13 Ark. 
 543, 58 Am. Dec. 338. A chattel mortgage 
 made in Canada, with possession delivered to 
 the mortgagee, was held entitled to priority 
 in Michigan, whither the property was taken 
 without consent of the mortgagee, over a 
 prior chattel mortgage in Michigan executed 
 before the property was taken to Canada and 
 recorded after its return; Vining v. Millar, 
 109 Mich. 205, G7 N. W. 126, 32 L. R. A. 442. 
 
 The existence of the lien will generally 
 depend on the lex loci; Story, Confl. Laws 
 §§ 322 b, 402 ; Harrison v. Sterry, 5 Cra. (U. 
 S.) 2S9, 3 L. Ed. 104. See note on extra-ter- 
 ritoriality of chattel mortgages, 17 L. R. A. 
 127. 
 
 Marriage comes under the general rule in 
 regard to contracts, with some exceptions. 
 See Lex Loci; 25 Amer. Law Rev. 82. 
 
 The scope of a marriage settlement made 
 abroad is to be determined by the lex loci 
 contractus; 1 Bro. P. C. 129; 2 M. & K. 513; 
 where not repugnant to the lex rei sitcej 31 
 E. L. & Eii. 443 ; De Pierres v. Thorn, 4 Bosw. 
 (N. Y.) 266. 
 
 When the contract for marriage is to be 
 executed elsewhere, the place of execution 
 becomes the locus contractus; 23 EL L. & Eq. 
 2S8. On the continent of Europe, capacity 
 is usually governed by nationality, though in 
 administering the rule the courts favor their 
 own citizens ; in England it was governed by 
 domicil, but now the courts have gone back 
 to the decision in 3 P. D. 1, holding capacity 
 is governed by law of place of ceremony; and 
 in America by the lex loci; Com. v. Lane, 113 
 Mass. 45S, 18 Am. Rep. 509. Hence it is 
 quite unsafe for an American to marry a for- 
 eigner without a complete investigation of 
 his capacity to marry according to his per- 
 sonal law. See an article by J. H. Beale, Jr., 
 in 15 H. L. R. 3S2 ; Marriage. 
 
 Torts. In an action brought in one state 
 for injuries done in another, the statutes and 
 ions of the courts of the latter state 
 must fix the liability: Njus v. Ry. Co., 47 
 Minn. 92. 49 N. W. 527; Erickson v. S. S. 
 Co., 96 Fed. 80 ; Burnett v. R. Co., 176 Pa. 
 45, 34 Atl. 972 (where a ticket was purchased 
 at a point in New Jersey to a place in New 
 York ; the person was injured in Pennsyl 1 
 vauia ; the law of Pennsylvania was held to 
 apply) > Alexander v. Pennsylvania Co., 48 
 
 Ohio St. 623, 30 N. E. 69; Railway Co. v. 
 Lewis, S9 Tenn. 235, 14 S. W. 603. See Le- 
 high Valley R. Co. v. Pennsylvania, 145 U. S. 
 193, 12 Sup. Ct. S06, 36 L Ed. 072. 
 
 In a proceeding to limit liability for claims 
 against a French vessel found to be in fault 
 for a collision in a fog on the high seas, the 
 law of France, which authorizes a recovery 
 for loss of life against the vessel in fault, 
 will be enforced by the courts of the United 
 States, although the French courts, in ap- 
 plying the facts, found the international rule 
 as to the speed of vessels in a fog might not 
 have held such vessel to be at fault; La 
 Bourgogne, 210 U. S. 95, 28 Sup. Ct. 664, 52 
 L. Ed. 973. 
 
 Movables in general. An assignment of a 
 movable which gives a good title according 
 to the law of the country where it is situat- 
 ed is recognized as valid in England, what- 
 ever the domicil of the parties may be ; 
 [1S92] 1 Ch. 23S ; so it lies with the law of 
 the place where a written instrument is sit- 
 uated to determine whether it is negotiable 
 or not; [1905] 1 K. B. 677. Where, by the 
 law of the place where goods are shipped and 
 where the ship is, a shipper is entitled to ex- 
 ercise a right of stoppage in transitu, and 
 has exercised that right in a manner recog- 
 nized as valid by such law, his title to the 
 goods will be recognized ; 1 East 515. The 
 rights of the assignor and the assignee on 
 an assignment, in one country, of a document 
 of title to a debt or to an interest in per- 
 sonal property, are in general governed by 
 the law of the country where the assignment 
 takes place, although the debt may be due 
 from persons living in, or the personal prop- 
 erty may be situated in, a foreign country; 
 [1S9S] A. C. 616. The validity of an assign- 
 ment of documents, such as policies of insur- 
 ance ; 17 Q. B. D. 309 ; or negotiable instru- 
 ments ; [1904] 2 K. B. 870 ; is determined by 
 the law of the place where the assignment is 
 made; 15 App. Cas. 267. 
 
 Special Personal Relations. Executors 
 and administratoj-s, in the absence of a spe- 
 cific statute authorizing it, have no power to 
 sue or be sued by virtue of a foreign appoint- 
 ment as such ; Westl. Priv. Int. Law 279 ; 
 Brookshire v. Dubose, 55 N. C. 276; Kirk- 
 patrick v. Taylor, 10 Rich. (S. C.) 393; L. 
 R. 5 Ch. App. 315; Swatzel v. Arnold, 1 
 Woolw. 3S3, Fed. Cas. No. 13,6S2 ; Clark v. 
 Blackington, 110 Mass. 369; Parker's Ap- 
 peal, 61 Pa. 478; Watson's Adm'r v. Pack's 
 Adm'r. 3 W. Va. 154; Turner v. Linam, 55 
 Ga. 253 ; Morton v. Hatch, 54 Mo. 408 : Bell's 
 Adm'r v. Nichols, 38 Ala. 678; Gilman v. 
 Oilman, 54 Me. 453; Armstrong v. Lear, 12 
 Wheat (U. S.) 169, 6 L. Ed. 5S9 ; 3 Q. B. 
 498; 2 Ves. 35. Where a foreign executor 
 has brought assets into a state, then as the 
 title is in him he can sue as an individual, 
 but not as executor; Talmage v. Chapel, 16 
 Mass. 71. 
 
 In the United States, however, payment to
 
 CONFLICT OF LAWS 
 
 G03 
 
 CONFLICT OF LAWS 
 
 such executor will be an equitable discharge, 
 if the money has been distributed to those 
 entitled ; Doolittle v. Lewis, 7 Johns. Ch. (N. 
 Y.) 49, 11 Am. Dec. 389. 
 
 Ships and cargoes and the proceeds there- 
 of, on the death of the owner, complete 
 their voyages and return to the home port 
 to be administered; story, Confl. Laws s 520; 
 Wells v. Miller, 45 111. 382; Orcutt v. Orms, 
 3 Paige Ch. (N. Y.) 459. 
 
 See Executors and Administrators. 
 
 Guardians have no power over the prop- 
 erty, whether real or personal, of their 
 wards, by virtue of a foreign appointment; 
 Morrell v. Dickey, 1 Johns. Ch. (N. Y.) 153; 
 Kraft v. Wickey, 4 (Jill & J. (Md.) 332, 23 
 Am. Dec. 569; 4 T. R. 185; they must have 
 the sanction of the appropriate local tri- 
 bunal: Curtis v. Smith, 6 Blatch. 537, Fed. 
 Cas. No. 3,505; Noonan v. Bradley, 9 Wall. 
 (U. S.) 394, 19 L. Ed. 757; Woodworth v. 
 Spring, I Allen (Mass.) 321; Wnart Confl. 
 Laws § 260; L. R. 2 Eq. 74. 
 
 As to the power of a guardian over the 
 domicil of his ward, see Domicil. 
 
 As to their extra-territorial powers, see 
 
 Ki:i ETVERS. 
 
 Sureties en me under the general rules, 
 and their contracts are governed by the lex 
 loci; but in the case of a bond with sure- 
 ties, given to the government by a navy 
 agent for the faithful performance of his 
 duties, the liability of the sureties is govern- 
 ed by the common law, as the accountability 
 of the principal was at Washington, the seat 
 of government ; Cox v. U. S., 6 ret. (U. S.) 
 172, S L. Ed. 359 (the case coming up from 
 Louisiana). See Duncan v. U. S., 7 Fet. (U. 
 S.) 435, S L. Ed. 739. See Suretyship. 
 
 Judgments and Decrees of Foreign 
 Courts relating to immovable property with- 
 in their jurisdiction are held binding every- 
 where. And the rule is the same with re- 
 gard to movables actually within their juris- 
 diction; Noble v. Oil Co., 79 Pa. 354, 21 Am. 
 Rep. 66; The Rio Grande, 23 Wall. (U. S.) 
 458, 23 L. Ed. 15,8 ; 2 C. & P. 155. See Pen- 
 noyer v. Neff, 95 U. S. 714, 24 L. Ed. 565; 
 L. R. 4 H. L. 414; Barrow v. West, 23 Pick. 
 (Mass.) 270; Croudson v. Leonard, 4 Cra. 
 (U. S.) 434, 2 L. Ed. G70. Thus admiralty 
 proceedings in rem are held conclusive every- 
 where if the court had a rightful Jurisdic- 
 tion founded on actual possession of the 
 subject-matter; Rose v. iiimely, 4 Cra. (II. 
 S.) 241, 2 L. Ed. 60S; Hudson v. Guestier, 
 4 Cra. (U. S.) 293, 2 L. Ed. 027, : Croudson 
 v. Leonard, 4 Cra. (U. S.) 434, 2 L. Ed. 670; 
 The Mary, 9 Cra. (U. S.) 120, 3 L. 1,1. 678; 
 Grant v. M'Lachlin, 4 Johns. (N. Y.) 34; 
 Bradstreet v. Ins. Co., 3 Sumn. 600, Fed. 
 Cas. No. 1,793; Magoun v. Ins. Co., 1 Sto. 
 157, Fed. Cas. No. 8,961; Cray v. Swan, 1 
 H. & J. (Md.) 142; Calhoun v. Ins. Co., 1 
 Binn. (Pa.) 299; Baxter v. Ins. Co., 6 Mass. 
 277, 4 Am. Dec 125; L. R, 5 Q. B. 599; 
 
 Dunham v. Ins. Co., 1 Low. 2 Cas. 
 
 No. 4,152; State v. R. Co., 10 Nev. 47. 
 
 But such decree may 1 ! for mat- 
 
 ter apparently <•: of the 
 
 record; 7 Term 523; or if t: a am- 
 
 biguity as to grounds o 
 
 . 495; 1 Green 1. Kv. | 
 drews v. Ilerriot, 4 Cow. (N. n. .;; 
 
 2 Kent 120. 
 
 Jurisdiction to garnish a debt not pay- 
 able at a particular | not, accoi 
 to s<>me cases, be bad without personal 
 ice on the creditor; see cases collect" 
 Minor, Confl. of Laws § 125. Ti 
 are overruled in Chicago, R. I. & P. Ry. Co. 
 v. Sturm, 174 C. S. 710, 1!' Sup. Ct 797, 43 
 L. Ed. 1144, which holds that service on the 
 garnishee alone, obtained in the state of 
 his domicil, gives jurisdiction. This decision 
 was based on reasoning and dicta which 
 would allow jurisdiction irrespective of 
 
 U wherever such service is obi. 
 and this view had been previously adopted 
 by a few cases cited in Chicago, R. I. & P. 
 Ry. Co. v. Sturm, 174 U. S. 710, 19 Sup. Ct. 
 797, 13 L. Ed. 1144. See, contra, Pennsyl- 
 vania R. Co. v. Rogers, 52 W. Va. 450, 44 
 S. E. 300, 62 L. R. A. 178. 
 
 Proceedings under the garnishee process 
 are held proceedings in ran; and a decree 
 may be pleaded in bar of an action against 
 the trustee or garnishee; 1 Grecnl. Kv. § 
 542; 4 Cow. (N. Y.) 520, n. But the court 
 must have rightful jurisdiction over the res 
 to make the judgment binding: and then it 
 will be effectual only as to the res, unless 
 the court had actual jurisdiction over the 
 person also; McVicker v. 1 Me. 31 1. 
 
 50 Am. Dec. 666; Mattingly's Heirs v. Corbit, 
 7 B. Monr. (Ky.) 376; State v. R. Co., 10 
 Nev. 47; Pennoyer v. Neil, 95 U. S. 714, 24 
 L. Ed. 565. 
 
 Assignments anp Transfers. Voluntary 
 assignments of personal property, valid 
 where made, will transfer property every- 
 where; Speed v. May, 17 Pa. 91, 55 Am. 
 Dec. 510: Schroder v. Tompkins, 
 072; Van Wyck v. Read, 43 F< 1. 716; Rich- 
 ardson v. Leavitt, 1 La. Ann. 430, 45 Am. 
 Dec. 90; Greene v. Mfg. Co., 52 Conn. 
 Train v. Kendall. 137 Mass. 366; not as 
 against citi"ens of the state of the situs at- 
 taching prior to the assigi s' obtaining 
 
 possession: Engraham v. Geyer, 13 Mass. 
 146, 7 Am. Dec. 132; King v. Johns 
 Har. (Del.) 31. Otherwise Wilson v. I 
 12 Md. 54. 
 
 An involuntary assignment by operation 
 of law as under bankrupt or Insolvent laws 
 will not avail as against attaching creditors 
 in the place of situation of the property; 
 Iloyt v. Thompson. 5 N. Y. 320; Crazier v. 
 Fredericks, 24 N. J. L. 162; Blake v. Wil- 
 liams. 6 Tick. (Mass.) 286, 302, 17 Am. Dec. 
 372; McNeil v. Colquhoon, 3 N. C. 24; Rob- 
 inson v. Crowder, 4 McCord (S. U.) 519, 17
 
 CONFLICT OF LAWS 
 
 604 
 
 CONFLICT OF LAWS 
 
 Am. Dec. 762; Saunders v. Williams, 5 N. 
 H. 213; Olivier v. Townes, 2 Mart. N. S. 
 (La.) 93; Milne v. Moreton, 6 Binn. (Pa.) 
 353, 6 Am. Dec. 466; Harrison v. Sterry, 5 
 Cra. (U. S.) 289, 3 L. Ed. 104; Very v. Mc- 
 Henry, 29 Me. 20S; Burk v. McClain, 1 
 Harr. & McH. (Md.) 236 ; Beer v. Hooper, 32 
 Miss. 246; Upton v. Hubbard, 28 Conn. 274, 
 73 Am. Dec. 670; Woodward v. Roane, 23 
 Ark. 526; Osborn v. Adams, 18 Pick. (Mass.) 
 247; Lichtenstein v. Gillett, 37 La. Ann. 522. 
 
 It may be a question whether tbe same 
 rule would hold if the assignees had obtain- 
 ed possession ; Cook v. Van Horn, 81 Wis. 
 291, 50 N. W. 893. An assignment by opera- 
 tion of law is good so as to vest property 
 in the assignees by comity; 6 M. & S. 126; 
 Holmes v. Remsen, 20 Johns. (N. Y.) 262, 
 
 11 Am. Dec. 269; Milne v. Moreton, 6 Binn. 
 (Pa.) 3G3, 6 Am. Dec. 466 ; Goodwin v. Joues, 
 3 Mass. 517, 3 Am. Dec. 173. 
 
 In England it is settled that an assign- 
 ment under the bankrupt law of a foreign 
 country passes all the personal property 
 of the bankrupt locally situate, and debts 
 owing in England, and that an attachment 
 of such property by an English creditor, 
 after such bankruptcy, with or without no- 
 tice to him, is invalid to overreach the as- 
 signment. See 25 Q. B. Div. 399. 
 
 Discharges by the lex loci contractus are 
 valid everywhere; May v. Breed, 7 Cush. 
 (Mass.) 15, 54 Am. Dec. 700; Long v. Ham- 
 mond, 40 Me. 204; Peck v. Hibbard, 26 Vt. 
 703, 62 Am. Dec. 605; Blanchard v. Russell, 
 13 Mass. 1, 7 Am. Dec. 106; Mason v. Haile, 
 
 12 Wheat. (U. S.) 370, 6 L. Ed. 660; 5 East 
 12-1. This rule is restricted in the United 
 States by the clause in the constitution 
 forbidding the passage of any law impairing 
 the obligation of contracts. Under this pro- 
 vision, it is held that a state insolvent or 
 bankrupt law may not have any extra-terri- 
 torial effect to discharge the debtor; Cook 
 v. Moffat, 5 How. (U. S.) 307, 12 L. Ed. 
 150; Donnelly v. Corbett, 7 N. Y. 500; Story, 
 Const. § 1115. See Lex Fori. It may, how- 
 ever, take away the remedy for non-per- 
 formance of the contract in the locus con- 
 tractus, on contracts made subsequently. 
 
 As to Foreign Judgments and Foreign 
 Laws, see those titles. 
 
 The important question of federal courts 
 following state decisions, or not, is properly 
 treated here. There is no common law of 
 the United States in the sense of a national 
 customary law distinct from the common 
 law of England as adopted by the several 
 states, each for itself, applied as its local 
 law, and subject to such alteration as may 
 be provided by its own statutes; Wheaton 
 v. Peters, 8 Pet. (U. S.) 591, 8 L. Ed. 1055; 
 Smith v. Alabama, 124 U. S. 465, 8 Sup. Ct, 
 564, 31 L. Ed. 508. A determination in a 
 given case, of what that law is, may be 
 different in a federal court from one pre- 
 vailing in a state court. This arises from 
 
 the circumstance that the federal courts, 
 where they are called upon to administer 
 the law of the state in which they sit, or 
 by which the transaction is governed, ex- 
 ercise an independent, though concurrent, 
 jurisdiction, and are required to ascertain 
 and declare the law according to their own 
 judgment ; Western Union Telegraph Co. v. 
 Pub. Co., 181 U. S. 92, 21 Sup. Ct. 561, 45 
 L. Ed. 765. The conclusion of a state court, 
 as to the time when a cause of action ac- 
 crues in case of fraud or concealment, based, 
 not on a construction of a state statute, 
 but on the view taken of the rule of the com- 
 mon law, is not binding on a federal court, 
 when called on to construe the common law 
 and to apply its principles to cases arising 
 between citizens of different states ; Murray 
 v. R. Co.. 62 Fed. 24. 
 
 U. S. R. S. § 721, provides that the laws 
 of the several states shall be regarded as 
 rules of decision in trials at common law 
 in courts of the United States in cases where 
 they apply. Judge Story in Swift v. Tyson, 
 16 Pet. (U. S.) 1, 10 L. Ed. 865, says : "It 
 will hardly be contended that decisions of 
 courts constitute laws. They are at most 
 only evidence of what the laws are, and 
 are not themselves laws. They are often 
 re-examined, reversed, and qualified by the 
 courts themselves, whenever they are found 
 to be either defective, ill-founded or other- 
 wise incorrect." All the decisions of the 
 state courts are "highly persuasive" upon 
 the United States courts, even on proposi- 
 tions of general law; this is because of the 
 desire for harmony between the jurisdic- 
 tions; Burgess v. Seligman, 107 U. S. 20, 2 
 Sup. Ct. 10, 27 L. Ed. 359. Some of the 
 questions on which the federal courts have 
 refused to follow the state courts are as 
 follows: A case concerning building and 
 loan associations ; Alexander v. Loan Ass'n, 
 110 Fed. 267 ; as to taking possession of 
 chattels under a chattel mortgage ; Thomp- 
 son v. Fairbanks, 196 U. S. 516, 25 Sup. Ct. 
 306, 49 L. Ed. 577; as to the liability of 
 common carriers, in the absence of a stat- 
 ute; Lake Shore & M. S. R. Co. v. Prentice, 
 147 U. S. 101, 13 Sup. Ct. 261, 37 L. Ed. 97; 
 the law of fellow servant; Baltimore & O. 
 R. Co. v. Baugh, 149 U. S. 372, 13 Sup. Ct. 
 914, 37 L. Ed. 772 ; the law as to the duties 
 of the master to furnish safe appliances to 
 the servant; Texas & P. R. Co. v. Barrett, 
 166 U. S. 617, 17 Sup. Ct. 707, 41 L. Ed. 
 1136; the law as to injuries at railroad 
 crossings; Schofield v. Ry. Co., 114 U. S. 
 615, 5 Sup. Ct. 1125, 29 L. Ed. 224; and as 
 to the validity of contracts exempting tele- 
 graph companies from liability for mistakes, 
 etc., in the transmission of messages; West- 
 ern Union Telegraph Co. v. Cook, 61 Fed. 
 624, 9 C. C. A. 680. 
 
 As to all matters governed by the law 
 merchant, the federal courts are not bound 
 by state decisions; Burgess v. Seligman,
 
 CONFLICT OF LAWS 
 
 G05 
 
 CONFLICT I >F LAWS 
 
 107 U. S. 20, 2 Sup. Ct. 10, 27 L. Ed. 359. It 
 is said that the same Is true in the law of 
 insurance; see Foster Fed. Pr. 557, 575, 
 .where the cases are collected. 
 
 Federal courts follow decisions of state 
 courts: 1. Upon the construction of state 
 constitutions and statutes; Walker v. State 
 Barbor Com'rs, 17 Wall. 648, 21 L. Ed. 744; 
 Gag* v. Pumpelly, 115 U. S. 454, 6 Sup. Ct 
 136, 29 L. Ed. 449; Its Interpretation is ac- 
 cepted as the true Interpretation, whatever 
 may be the federal court's opinion of its 
 soundness; dates v. Lank, 100 U. S. 245, 25 
 L. Ed. 580. 2. Upon questions Involving the 
 title to land; Myrick v. Hoard. .".1 Fed. 241; 
 Deguire v. Lead Co., 37 Fed. 663; Shields 
 v. McAuley, 37 Fed. 302; Arrow-smith v. 
 Gleason, 129 U. S. 8G, 9 Sup. Ct. 237, 32 L. 
 Ed. 630. ?.. Upon the question whether a 
 third person may sue on a contract made 
 for his benefit; Bethlehem Iron <"u. v. Hoad- 
 ley, 152 Led. 735; as to the effect upon con- 
 tracts of a statute prohibiting labor on Sun- 
 day; Hill v. Hire, 79 Fed. 820; as to what 
 constitutes a breach of a contract for serv- 
 ly v. Revolving Door Co., 184 Fed. 459; 
 as to the right of the lowest bidder to the 
 award of a contract for a public improve- 
 ment; U. S. Wood Preserving Co. v. Sund- 
 inaker, 186 Fed. 67S, 110 C. C. A. 224; as 
 to the payment of wages of employees; 
 Crowther v. Ins. Trust & C. Co., 85 Fed. 41, 
 29 C. C. A. 1. 4. Upon the construction and 
 effect of statutes in relation to marriage; 
 Meister v. Moore, 90 U. S. 76, 24 L. Ed. 826 ; 
 and generally as to the capacity of married 
 women to contract and their liability on their 
 contracts; Cross v. Allen, 141 U. S. 528, 12 
 Sup. Ct. 67, 35 L. Ed. 843; and specifically 
 her right, under married women's acts, to 
 mortgage her separate property to secure 
 her husband's debts; Mitchell v. Lippincott, 
 2 Woods 467, Fed. Cas. No. 9.G65 ; the requi- 
 sites of conveyances; Gillespie v. Coal, etc., 
 Co., 163 Fed. 992, 91 C. C. A. 494; and ac- 
 knowb dgmenl ; Berry v. Bank, 93 Fed. 4 I. 35 
 C. C. A. 185, by a married woman; the effect 
 of conveyances to husband and wife ; Meyers 
 v. I Iced, 17 Fed. 401 ; a wife's right to sue in 
 her own name; and as to the running of the 
 statute of limitations against her; Kibbe v. 
 Ditto, 9:'. U. S. 674, 23 L, Ed 1005; the com- 
 mon-law right of husband and wife re- 
 spectively to the custody of a child; In re 
 Barry, 42 Fed. 113, 136 U. S. 597, 34 L. Ed. 
 503, note. 5. Upon questions distinctive of 
 a statute giving a right of action for a neg- 
 ligent homicide; Matz v. C. & A. R. R. Co., 
 85 Fed. 180; Spinello v. R. Co., 183 Fed. 762, 
 100 C. C. A. ISO. 6. Upon the validity of a 
 license ordinance adopted by a board of 
 county supervisors; Flanigan v. Sierra Coun- 
 ty, 196 U. S. 553, 25 Sup. Ct. 314, 4'.) L. Ed. 
 597; or ordinances respecting the traffic in 
 Intoxicating liquors; Crowley v. Christen- 
 sen, 137 U. S. SO, 11 Sup. Ct. 13, 34 L. Ed. 
 620. 7. Upon general questions of local 
 
 law in regard to the character and extent 
 
 of the powers and liabilities of the po' 
 
 bodies or municipal i Ions of a Bt 
 
 Johnson v. St I 
 
 A. 617, 18 Ann. I 
 
 in relation to the state . Mohr \ 
 
 nierre, 101 U. s. 417, 25 L. Ed 1 
 
 S( e 40 L. R. A. (N. S ith an ex- 
 
 haustive note. 
 
 The rules of evidence of 
 generally .applied In the federal courts; 
 Limber v. B. Co., 125 D. S. 555, 583, 8 Sup. 
 Ct bit, 31 L. Ed. 795. 
 
 As to the situs of movable property 
 taxation, see Taxation. 
 
 See United States Courts; Husband and 
 Wife; Legitimacy; Divokce; O 
 GrjABDiAH and Wabd; Adoption; Po 
 Usuav; Trusts; Corporations; Cong 
 tion of United Si .-.. 
 
 CONFORMITY STATUTE. A term used 
 to designate section 72 1 of Revised St 
 of the U. S. which provides as to federal 
 courts conforming to state practice. 
 
 CONFRONTATION. The act by which a 
 witness is brought into the presence of the 
 
 • !. so that the latter may object to 
 him, if he can. and the font know 
 
 and Identify the accused and maintain the 
 truth in his presence. In criminal cases no 
 man can be a witness unless confronted 
 with the accused, except by cons. 
 
 C0NFUSI0 (Lat. conf under e) . In Civil 
 Law. A pouring together of liquids; a melt- 
 ing of metals; a blending together of an 
 inseparable compound. 
 
 It Is distinguished from commixtion by the fact 
 that in the latter case a separation may be made, 
 while in a case of coiifusio there cannot be. 2 Bla. 
 Com. 405. 
 
 CONFUSION OF DEBTS. The concur- 
 rence of two adverse rights to the same 
 thing in one and the same person. Woods v. 
 Ridley, 11 Humph. (Tenn.) 198. 
 
 CONFUSION OF GOODS. Such a mix- 
 ture of the goods of two or more persons 
 that they cannot be distinguished. 
 
 When this takes place by the mutual con- 
 sent of the owners, they have an Inl 
 in the mixture in proportion to their re- 
 spective shares; Silsbury v. McCoon, <'. Hill 
 (X. Y.) 425, 11 Am. Dee. 753; but see Wells 
 v. Batts?112 X. C. 283, 17 S. E. 117, 34 Am. 
 St. Bep. 506. Where it is caused by the 
 wilful act of one party without the o 
 consent, the one causing the mixture must 
 separate them at his own peril; Bis] 
 g 86; Ilesseltine v. Stockwell, 30 Me 
 50 Am. Dec. 027; Bryant v. Ware, 30 Me. 
 295; Dunning v. Stearns, ft Barb. (X. Y.) 
 G30; 2 Kent 365; and must bear the whole 
 loss; •Brackenridge v. Holland. 2 Elackf. 
 (Ind.) 377. 20 Am. Dec. 123; Huff v. Karl. 
 ;; I n,l. 306; Hart v. Ten Eyek. 2 Johns. Ch. 
 (N. Y.) 62; Willard v. Rice, 11 Mete, (:■'
 
 CONFUSION OF GOODS 
 
 606 
 
 CONFUSION OF GOODS 
 
 493, 45 Am. Dec. 226: Hesseltine v. Stock- 
 well, 30 Me. 237; unless he can identify his 
 goods; Ayre v. Hixson, 53 Or. 19, 98 Pac. 
 51S, 133 Am. St. Rep. 819; Levyeau v. Cle- 
 ments, 175 Mass. 376, 56 N. E. 735, 50 D. R. 
 A. 397; otherwise, it is said, if the confusion 
 is the result of negligence merely, or acci- 
 dent; Pratt v. Bryant, 20 Vt. 333; or of the 
 wrongful act of a stranger ; Bryant v. Ware, 
 30 Me. 295; if commingled by mistake or 
 accident, or by consent of the parties, the 
 owners will be treated as tenants in com- 
 mon ; Ayre v. Hixson, 53 Or. 19, 98 Pac. 518, 
 133 Am. St. Rep. S19. The rule extends no 
 further than necessity requires; 2 Campb. 
 575; Holbrook v. Hyde, 1 Vt. 2S6; Wood 
 v. Fales. 24 Pa. 246, 64 Am. Dec. 655 ; Queen 
 v. Wernwag, 97 N. C. 383, 2 S. E. 657; for 
 if the goods can be distinguished, it will not 
 justify one in taking another's goods upoD 
 the ground that they have been intermin- 
 gled; Clafliu v. Beaver, 55 Fed. 576. 
 
 Lord Eldon was of opinion that the wrong- 
 doer should not lose his whole property in 
 the mass; 15 Ves. 442; and with this view 
 agrees a learned article in 6 Am. L. Rev. 455, 
 understood (Williston, Sales, 179) to have 
 been written by Mr. Justice O. W. Holmes, 
 and containing a full discussion of the prin- 
 ciples relating to grain in elevators. 
 
 Where a vessel was wrecked and the bales 
 of cotton that were saved were indistinguish- 
 able as to ownership, it was held that the 
 several owners of the cotton that was ship- 
 ped had a proportional interest in what 
 was saved, as by a kind of tenancy in com- 
 mon; L. R. 3 C. P. 427. 
 
 The fact that defendants in replevin to 
 recover ore had wrongfully mixed plaintiff's 
 ore with their ore of a lower grade did not 
 preclude recovery of their ore, though some 
 of the defendants' might have been taken 
 with it; Blurton v. Hansen, 135 Mo. App. 
 548, 116 S. W. 474. Where a bank com- 
 mingles its own collateral to secure its own 
 debts with collaterals which it held to se- 
 cure a note payable through the bank, owed 
 to a depositor, in such a way that it was 
 impossible to distinguish one set from the 
 other, all the collaterals became the prop- 
 erty of the depositor to secure the note ; 
 First Nat. Bank of Decatur v. Henry, 159 
 Ala. 367, 49 South. 97. 
 
 A writer in 14 Harv. L. Rev. ^57, is of 
 opinion that the better view is that where 
 there has been no change of value and the 
 mass is homogeneous each party is entitled 
 to his proportionate share irrespective of 
 brand; citing Hesseltine v. Stockwell, 30 
 Me. 237, 50 Am. Dec. 627; Claflin v. Jersey 
 Works, 85 Ga. 27, 46, 11 S. E. 721. 
 
 As to grain in an elevator, the cases give 
 effect to the intention of the parties (which 
 undoubtedly exists) that the depositor shall 
 retain title; Williston, Sales, § 154, citing 
 Woodward v. Semans, 125 Ind. 330, 25 N. E. 
 444, 21 Am. St. Rep. 225; Moses v. Teetors, 
 
 64 Kan. 149. 67 Pac. 526, 57 L. R. A. 267; 
 Ledyard v. Hibbard, 48 Mich. 421, 12 N. W. 
 637, 42 Am. Rep. 474; Millhiser Mfg. Co. v. 
 Mills Co., 101 Va. 579, 44 S. E. 760; Rahilly 
 v. Wilson, 3 Dill. 420, Fed. Cas. No. 11,532. 
 The same writer says (section 154) : "The 
 warehouseman is thus a bailee to keep tbe 
 grain, with power to change the bailor's 
 ownership in severalty into a tenancy in 
 common of a larger mass and back again, 
 and with a continuous power of sale, sub- 
 stitution and resale. At any given moment, 
 however, all the holders of receipts for the 
 grain are tenants in common of the amount 
 in store, the share of each being proportion- 
 ate to the amount of his receipts as com- 
 pared with the total number of receipts out- 
 standing." It is the duty of the bailee to 
 keep sufficient grain to meet all his out- 
 standing receipts; Young v. Miles, 23 Wis. 
 643. 
 
 Where gas from plaintiff's well was 
 wrongfully mixed with gas from defendant's 
 59 wells, plaintiff could recover Veo of the 
 proceeds from the sale of the product of all 
 of the 60 wells; Great Southern Gas & Oil 
 Co. v. Fuel Co., 155 Fed. 114, 83 C. C. A. 
 574. 
 
 The doctrine does not apply to cattle and 
 horses or other like property that can be 
 readily identified; McKnight v. U. S., 130 
 Fed. 659, 65 C C. A. 37. 
 
 CONFUSION OF RIGHTS. A union of 
 the qualities of debtor and creditor in the 
 same person. The effect of such a union 
 is, generally, to extinguish the debt; 1 Salk. 
 306; Cro. Car. 551; 1 Ld. Raym. 515. See 
 5 Term 381; Comyns, Dig. Baron et Feme 
 (D). 
 
 CONGE. In French Law. A clearance. A 
 species of passport or permission to navi- 
 gate. 
 
 CONGE D'ACCORDER (Fr. leave to ac- 
 cord). A phrase used in the process of levy- 
 ing a fine. Upon the delivery of the original 
 writ, one of the parties immediately asked 
 for a conge' d'accorder, or leave to agree 
 with the plaintiff. Termes de la Ley; Cow- 
 ell. See Ltcentia Concordandi; 2 Bla. Com. 
 350. 
 
 CONGE D'ELIRE (Fr. leave to elect). 
 The king's permission royal to a dean and 
 chapter in time of vacation to choose a 
 bishop, or to an abbey or priory of his own 
 foundation to choose the abbot or prior. 
 
 Originally, the king had free appointment of all 
 ecclesiastical dignities whensoever they chanced to 
 be void. Afterwards he made the election over to 
 others, under certain forms and conditions: as, 
 that at every vacation they should ask of the king 
 cong6 delire ; Cowell ; Termes de la Ley; 1 Bla. 
 Com. 379, 382. The permission to elect Is a mere 
 form ; the choice is practically made by the crown. 
 A letter missive accompanies the authority to elect, 
 designating the person to be chosen and If there 
 is no election within twenty days there Is a liability 
 to a penalty.
 
 CONGE D'EMPARLER 
 
 607 
 
 CONG I 
 
 CONGE D'EMPARLER (Fr. Leave to im- 
 parl). The privilege of an imparlance (J£- 
 centia loqueridi). 3 Bla. Com. 299. 
 
 CONGEABLE (Fr. congt, permission, 
 leave). Lawful, or lawfully done, or done 
 with permission; as, entry congeable and 
 the like. Littleton, § 279. 
 
 CONGREGATION. A society of a number 
 of persons who compose an ecclesiastical 
 body. 
 
 Certain bureaus at Rome, where ecclesias- 
 tical matters are attended to. 
 
 In the United States, the members of a 
 particular church who meet in one place to 
 worship. See Robertson v. Bullions, 9 Barb. 
 (N. Y.) G4. 
 
 C N G R ESS. An assembly of deputies con- 
 vened from different governments to treat 
 of peace or of other international affairs ; 
 as the Congress of Berlin to settle the terms 
 of peace between Russia and Turkey in 
 1878; composed of representations of the 
 great Powers of Europe. 
 
 In theory a congress may conclude a 
 treaty, while a conference is for consulta- 
 tion, and its result, ordinarily a protocol, 
 prepares the way for a treaty. See Cent. 
 Diet.; Encyc. Diet. But this is not always 
 true, as the Berlin conference of 1889 was 
 composed of plenipotentiaries and its delib- 
 erations resulted in a treaty. 
 
 The legislative body of the United States, 
 composed of the senate and house of repre- 
 sentatives {q. v.). U. S. Const, art. 1, § 1. 
 
 Each house Is the judge of the election and qual- 
 ifications of Its members. A majority of each house 
 Is a quorum ; but a smaller number may adjourn 
 from day to day, and compel the attendance of ab- 
 sent members. Each house may make rules, punish 
 its members, and by a two-thirds vote expel a mem- 
 ber. Each house must keep a journal and publish 
 the same, excepting such parts as may, in their 
 judgment, require secrecy, and record the yeas and 
 nays at the desire of one-fifth of the members pres- 
 ent. Art. 1, s. 5. A court is bound to assume that 
 the journal speaks the truth and cannot receive oral 
 testimony to impeach Its correctness ; U. S. v. Bal- 
 lin, 144 U. S. 1, 12 Sup. Ct. 507, 36 L. Ed. 321. 
 
 The members of both houses are in all cases, ex- 
 cept treason, felony, and breach of the peace, priv- 
 ileged from arrest while attending to and returning 
 from the session of their respective houses ; and no 
 member can be questioned in any other place for 
 any speech or debate in oither house. U. S. Const, 
 art. 1, s. 6. 
 
 Whether a senator of the United States has waiv- 
 ed his privilege from arrest and whether such priv- 
 ilege Is personal or given for the purpose of al- 
 ways securing the representation of his state in the 
 senate are Questions which can be raised by writ 
 of error directly to the district court ; Burton v. 
 U. S., 196 U. S. 2S3, 25 Sup. Ct. 243, 49 L. Ed. 4S2. 
 
 Each house of congress has claimed and exercised 
 the power to punish contempts and breaches of 
 Its privileges, on the ground that all public func- 
 tionaries are essentially Invested with the powers of 
 Belf-preservatlon, and that whenever authorities are 
 given, the means of carrying them into execution 
 are given by necessary implication. Jefferson, 
 Manual, § 3, art. Privilege; Duane's Case, Senate 
 Proceedings, Gales and Seaton's Annals of Cong., 
 6th Congress, pp. 122, 184; Wolcott's Case, Journal 
 Hou. Reps. 1st Sess. 35th Congress, pp. 371, 3S6, 535. 
 Irwin's Case, 2d Sess. 43d Congress, Index. In Kil- 
 
 bourn's Case, 103 U. S. 168, 26 L. Ed. 377, 11 
 held that although the house can punish Its own 
 members for disorderly conduct or for failure to 
 attend Its sessions, and can ■; con- 
 
 tested elections and determine the qualifications of 
 Its members, and exercise the sole power of Im- 
 peachment of officers of the government, and may, 
 when the examination of witnesses Is ii> cessary to 
 
 :ormance of these duties, fine or lmpri 
 contumacious witness,— there is not found in the 
 constitution any general power vested in 
 house to punish for contempt. The order of the 
 house ordering the Imprisonment of a witij' 
 refusing to answer certain questions put to him by 
 the house, concerning the business of a real estate 
 hip of which he was a member, and to pro- 
 duce certain books in relation thereto, was held 
 void and no defence on the part of the t'ergeaut-at- 
 arms in an action by the witness for false impris- 
 onment. The members of the committee, who took 
 no actual part in the imprisonment, were held not 
 liable to such action. The cases in which the pow- 
 er had been exercised are numerous. This power, 
 however, extends no further than Imprisonment ; 
 and that will continue no further than the duration 
 of the power that imprisons. The imprisonment 
 will therefore terminate with the adjournment or 
 dissolution of congress. 
 
 The rules of proceeding In each house are sub- 
 stantially the same: the house of representatives 
 choose their own speaker; the vice-president of the 
 United States is, ex officio, president of the senate. 
 For rules of proceeding, see Hind's Precedents of 
 of R. 
 
 When a bill is engrossed, and has received the 
 sanction of both houses, it is sent to the president 
 for his approbation. If he approves of the bill, he 
 signs it. If he does not, it is returned, with his ob- . 
 jections, to the house in which it originated, and 
 that house enters the objections at large on its 
 journal and proceeds to reconsider it. If, after 
 such reconsideration, two-thirds of the house agree 
 to pass the bill, it is sent, together with the objec- 
 tions, to the other house, by which it is likev 
 considered, and, If approved by two-thirds of that 
 house, it becomes a law. But in all such cases the 
 votes of both houses are determined by yeas and 
 nays, and. the names of the persons voting for and 
 against the bill are to be entered on the Journal of 
 each house respectively. 
 
 If any bill shall not be returned by the president 
 within ten days (Sundays excepted) after It shall 
 have been presented to him, the same ^hall be a 
 law, in like manner as if he had sign. 
 the congress by their adjournment prevent its re- 
 turn; in which case it shall not be a law. See 
 Kent, Lect. XI. 
 
 The right of the president to sign a bill after an 
 adjournment of congress although within ten days 
 of its passage, has been Inferentially approved by 
 the supreme, court on four different occasions, in 
 connection with the captured and abandoned prop- 
 erty act, which was signed by the presid 
 March 12, 1863, and after the adjournment of con- 
 gress; Tobey v. Leonard, 2 Wall. (U. S.) 423, 17 L. 
 Ed. 842 ; U. S. v. Anderson, 9 Wall. (U. S.) 56, 19 L. 
 Ed. 615 ; U. S. v. Klein, 13 Wall. (U. S.) 128, 20 L. 
 Ed. 519. Upon this point the court of claims held 
 that a bill signed by the president after the usual 
 adjournment of congress for the winter holidays, 
 but within ton days from the time wh^n it was pre- 
 sented to him, was duly approved within the Intent 
 and meaning of the constitution; U. S. v. Alice 
 Well, 29 Ct. CI. 523. 
 
 The house of representatives has the exclusive 
 right of originating bills for raising revenue; and 
 this Is the only privilege that house enjoys in its 
 legislative character which is not shared equally 
 with the other; and even those bills are amendable 
 by the senate in Its discretion; Art. 1, s. 7. 
 
 One of the houses cannot adjourn, during the 
 session of congress, for more than three days with- 
 out the consent of the other ; nor to any other 
 place than that in which the two houses shall be sit- 
 ting ; Art 1, s. 6.
 
 CONGRESS 
 
 608 
 
 CONNIVANCE 
 
 All the legislative powers granted by the consti- 
 tution of the United States or necessarily implied 
 from those granted, are vested in the congress. 
 
 CONJECTIO CAUS/E. In Civil Law. A 
 statement of the case. A brief synopsis of 
 the case given by the advocate to the judge 
 in opening the trial. Calvinus, Lex. 
 
 CONJECTURE. A slight degree of cre- 
 dence, arising from evidence too weak or too 
 remote to cause belief. 1 Mascardus, De 
 Prob. qimest. 14, n. 14. 
 
 An idea or notion founded on a probability 
 without any demonstration of its truth. 
 
 CONJOINTS. Persons married to each 
 other. Story, Confl. Laws, § 71; Wolffius, 
 Droit de la Xat. § 858. 
 
 CONJUGAL RIGHTS. See Restitution 
 op Conjugal Rights. 
 
 CONJUNCTIVE. Connecting in a man- 
 ner denoting union. 
 
 There are many cases in law where the conjunc- 
 tive and is used for the disjunctive or, and vice 
 versa. 
 
 CONJUNCTIVE OBLIGATION. One in 
 which the several objects in it are connect- 
 ed by a copulative, or in any other manner 
 which shows that all of them are severally 
 comprised in the contract. This contract 
 creates as many different obligations as 
 there are different objects; and the debtor, 
 when he wishes to discharge himself, may 
 force the creditor to receive them separate- 
 ly. Civil Code, La. § 2063. 
 
 CONJURATION (Lat. a swearing togeth- 
 er). A plot, bargain, or compact, made by a 
 number of persons under oath, to do some 
 public harm. 
 
 Personal conference with the devil or 
 some evil spirit, to know any secret or effect 
 any purpose. The laws against conjuration 
 and witchcraft were repealed in 1736. Moz- 
 ley & W. Law Diet. 
 
 CONNECTICUT. The name of one of the 
 original states of the United States of 
 America. 
 
 It was not until the year 1665 that the whole terri- 
 tory now known as the state of Connecticut was 
 under one colonial government. The charter was 
 granted by Charles II. in April, 1662. Previous to 
 that time there had been two colonies, with separate 
 governments. 
 
 As this charter to the colony of Connecticut em- 
 braced the colony of New Haven, the latter resisted 
 it until about January, 1603, when the two colonies, 
 by mutual agreement, became indissolubly united. 
 In 1687, Sir Edmund Andros attempted to seize and 
 take away the charter ; but it was secreted and pre- 
 served in the famous Charter Oak at Hartford, and 
 is now kept in the office of the secretary of state. 
 1 Hollister, Hist. Conn. 315. It remained in force, 
 with a temporary suspension, as a fundamental law 
 of the state, until the present constitution was 
 adopted. Story, Const. 386; Comp. Stat. Conn. Rev. 
 of 1875, iil. xlv. 
 
 The present constitution was adopted on the 15th 
 of September, 1818. Seventeen amendments have 
 £>een adopted, 1823-1875; also in 1901 and 1905. 
 
 CONNECTING LINES. See Common Cab- 
 
 RIEBS. 
 
 CONNIVANCE. An agreement or consent, 
 indirectly given, that something unlawful 
 shall be done by another. 
 
 Connivance differs from condonation, though the 
 same legal consequences may attend it. Conniv- 
 ance necessarily involves criminality on the part of 
 the individual who connives; condonation may take 
 place without imputing the slightest blame to the 
 party who forgives the injury. Connivance must 
 be the act of the mind before the offence has been 
 committed; condonation is the result of a deter- 
 mination to forgive an injury which was not known 
 until after it was inflicted. 3 Hagg. Eccl. 350. 
 
 Connivance differs, also, from collusion: the for- 
 mer is generally collusion for a particular pur- 
 pose, while the latter may exist without conniv- 
 ance. 3 Hagg. Eccl. 130. 
 
 The connivance of the husband to his 
 wife's prostitution deprives him of the right 
 of obtaining a divorce, or of recovering dam- 
 ages from the seducer ; Geary, Mar. & Fam. 
 R. 268 ; 4 Term 657. The husband may ac- 
 tively connive at the adultery ; Myers v. My- 
 ers, 41 Barb. (N. T.) 114; Hedden v. Hed- 
 den, 21 N. J. Eq. 61 ; or he may passively ; 
 5 Eng. Ecc. 27; 3 Hagg. Eccl. 87. It may be 
 satisfactorily proved by implication. See 
 Shelf. Mar. & Div. 449; 2 Bish. Mar. & Div. 
 § 6 ; 2 Hagg. Eccl. 278, 376 ; 3 id. 58, 82, 107, 
 119, 312; Pierce v. Pierce, 3 Pick. (Mass.) 
 299, 15 Am. Dec. 210; Seagar v. Sligerland, 
 2 Gaines (N. Y.) 219; Masten v. Masten, 15 
 N. H. 161 ; Herrick v. Herrick, 31 Mich. 300 ; 
 In re Childs, 109 Mass. 407 ; Cochran v. Coch- 
 ran, 35 la. 477. 
 
 A husband who connives at or consents to 
 adultery by his wife is deemed as consenting 
 to it with others and cannot have a divorce 
 for a subsequent act with a different person, 
 though the act connived at was not commit- 
 ted ; Hedden v. Hedden, 21 N. J. Eq. 61 ; nor 
 can he where the wife was led into it by 
 connivance of a detective employed by the 
 husband, not for such purpose but to obtain 
 evidence; Rademacher v. Rademacher, 74 N. 
 J. Eq. 570, 70 Atl. 687 ; L. R. 2 P. & D. 428. 
 So also abandonment by the wife, knowing 
 (as she said she did) that the husband 
 would naturally seek other women, was held 
 to be connivance; Richardson v. Richardson, 
 114 N. Y. Supp. 912. Where a husband wil- 
 fully abstains from any attempt to prevent 
 misconduct which he must know is likely to 
 occur, he is held to have connived at such 
 misconduct; 33 L. J. Mat. Cas. 161. . 
 
 C0NN0ISSEMENT. In French Law. An 
 
 instrument, signed by the master of a ship 
 or his agent, containing a description of the 
 goods loaded on a ship, the persons who have 
 sent them, the persons to whom they were 
 sent, and the undertaking to transport them. 
 A bill of lading. Guyot, Rtpert. Univ.; Ord. 
 de la Marine, 1. 3, t. 3, art. 1. 
 
 CONNUBIUM (Lat). A lawful marriage. 
 See Marriage; Concubinatus. 
 
 C0N0CIMIENT0. In Spanish Law. A 
 bill of lading. In the Mediterranean porta 
 it is called poliza de cargamiento.
 
 CONQUEST 
 
 609 
 
 CONQUETS 
 
 CONQUEST (Lat. conquiro, to seek for). 
 
 In Feudal Law. Purchase; any means of 
 obtaining an estate out of the usual course 
 of inheritance. 
 
 The estate itself so acquired. 
 
 According to Blackstone and Sir Henry Spelman, 
 the word in its original meaning was entirely dis- 
 sociated from any connection with the modern idea 
 of military subjugation, but was used solely in the 
 sense of purchase. It Is difficult and quite profit- 
 less to attempt a decision of the question which has 
 arisen, whether it was applied to William's ac- 
 quisition of England in its original or its popular 
 meaning. It must be allowed to offer a very reason- 
 able explanation of the derivation of the modern 
 signification of the word, that it was still used at 
 that time to denote a technical purchase — the prev- 
 alent method of purchase then, and for quite a 
 long period subsequently, being by driving off the 
 occupant by superior strength. The operation of 
 making a conquest, as illustrated by William the 
 Conqueror, was no doubt often afterwards repeated 
 by his followers on a smaller scale ; and thus the 
 modern signification became established. On the 
 other hand, It would be much more difficult to de- 
 rive a general signification of purchase from the 
 limited modern one of military subjugation. But 
 the whole matter must remain mainly conjectural ; 
 and it Is undoubtedly going too far to say, with 
 Burrill, that the meaning assigned by Blackstone 
 Is "demonstrated," or, with Wharton, that the 
 same meaning is a "mere idle ingenuity." Fortu- 
 mately, the question Is not of the slightest impor- 
 tance in any respect. 
 
 See 17 L. Q. R. 392. 
 
 In International Law. The acquisition of 
 the sovereignty of a country by force of 
 arms, exercised by an independent power 
 which reduces the vanquished to submission 
 to its empire. 
 
 The intention of the conqueror to retain 
 the conquered territory is generally manifest- 
 ed by formal proclamation of annexation, 
 and when this is combined with a recognized 
 ability to retain the conquered territory, the 
 transfer of sovereignty is complete. A treaty 
 of peace based upon the principle of uti pos- 
 siddis (q. v.) is formal recognition of con- 
 quest. 
 
 The effects of conquest are to confer upon 
 the conquering state the public property of 
 the conquered state, and to invest the for- 
 mer with the rights and obligations of the 
 latter ; treaties entered into by the conquer- 
 ed state with otber states remain binding 
 upon the annexing state, and the debts of 
 the extinct state must be taken over by it. 
 Conquest likewise invests the conquering 
 state with sovereignty over the subjects of 
 the conquered state. .Among subjects of the 
 conquered state are to be included persons 
 domiciled in the conquered territory who 
 remain there after the annexation. The 
 people of the conquered state change their 
 allegiance but not their relations to one an- 
 other. Leitensdorfer v. Webb, 20 How. (U. 
 S.) 176, 15 L. Ed. S91. 
 
 After the transfer of political Jurisdiction 
 to the conqueror the municipal laws of the 
 territory continue in force until abrogated 
 by the new sovereign. American Ins. Co. y. 
 Canter, 1 Pet. (U. S.) 511, 7 L. Ed. 242. 
 Bouv.— 39 
 
 CONQUERS. In French Law. The name 
 given to every acquisition which the hus- 
 band and wife, Jointly or severally, make 
 during the conjugal community. Thus, what- 
 ever is acquired by the husband and wife, 
 either by his or her Industry or good fortune, 
 enures to the extent of one half for the ben- 
 Hit ( .f the other. Merlin, 1 qu(t; 
 Merlin, Quest., Conquest. In Louisiana, these 
 gains are called acquets. La. Civ. Code, art 
 2369. The oonquStg by a former marriage 
 may not be settled on a second wife to prej- 
 ndice the heirs; 2 Low. C. 175. 
 
 CONSANGUINEOUS F RATER. A broth- 
 er who has the same father. 2 Bla. Com. 
 231. 
 
 CONSANGUINITY (Lat conmnguis, blood 
 together). 
 
 The relation subsisting among all the dif- 
 ferent persons descending from the same 
 sf"<k or common ancestor. See Sweezey v. 
 Willis, 1 Brad. Surr. R, (N. Y.) 495. 
 
 Having the blood of some common ances- 
 tor. Blodget v. Brinsmaid, 9 Vt 30. 
 
 Collateral consanguinity is the relation 
 subsisting among persons who descend from 
 the same common ancestor, but not from 
 each other. It is essential, to constitute this 
 relation, that they spring from the same com- 
 mon root or stock, but in different branches. 
 
 Lineal consanguinity is that relation which 
 exists among persons where one is deed 
 from the Other, as hot ween the son and the 
 father, or the grandfather, and so upward 
 in a direct ascending line; and between the 
 father and the son, or the grandson, and so 
 downwards in a direct descending line. 
 
 In computing the degree of lineal con- 
 sanguinity existing between two persons, ev- 
 ery generation in the direct course of rela- 
 tionship between the two parties makes a 
 degree; and the rule is the same by the can- 
 on, civil, and common law. 
 
 The mode of computing degrees of collat- 
 eral consanguinity at the common and by 
 the canon law is to discover the common 
 ancestor, to begin with him to reckon down- 
 wards, and the degree the two persons, or 
 the more remote of them, is distant from 
 the ancestor, is the degree of kindred bud- 
 elsting between them. For instance, two 
 brothers are related to each other in the 
 first degree, because from the father to each 
 of them is one degree. An uncle and a 
 nephew are related to each other in the sec- 
 ond degree, because the nephew is two de- 
 grees distant from the common ancestor; 
 and the rule of computation is extended to 
 the remotest degrees of collateral relation- 
 ship. 
 
 The method of computing by the civil law 
 is to begin at either of the persons in ques- 
 tion, and count up to the common ancestor, 
 and then downwards to the other person, 
 calling it a degree for each person, both as-
 
 CONSANGUINITY 
 
 G10 
 
 CONSCRIPTION 
 
 cending and descending, and the degrees they 
 stand from each other is the degree in 
 which they stand related. Thus, from a 
 nephew to his father is one degree; to the 
 grandfather, two degrees ; and then to the 
 uncle three; which points out the relation- 
 ship. 
 
 The following table, in which the Roman 
 numeral letters express the degrees by the 
 civil law, and those in Arabic figures those 
 by the common law, will fully illustrate the 
 subject. 
 
 The mode of the civil law is preferable, 
 for it points out the actual degree of kindred 
 in all cases ; by the mode adopted by the 
 common law, different relations may stand 
 in the same degree. The uncle and nephew 
 stand related in the second degree by the 
 common law, and so are two first cousins, 
 or two sons of two brothers ; but by the civil 
 law the uncle and nephew are in the third 
 degree, and the cousins are in the fourth. 
 The mode of computation, however, is im- 
 material ; for both will establish the same 
 person to be the heir; 2 Bla. Com. 202. 
 
 CONSCRIPTION. A compulsory enrol- 
 ment of men for military service; draft. 
 The body of conscripts. Stand. Diet. 
 
 A military force was raised by conscrip- 
 tion under the acts of July 17, 1862, March 
 3, 1SG3, and February 10, 1864. They pro- 
 vided for a national enrolment under the au- 
 thority of the United States, for an appor- 
 tionment of quotas among the states, and 
 authorized the quotas to be obtained in the 
 several districts into which the states were 
 divided. Certain classes of persons were ex- 
 empt, and drafted men were released upon 
 furnishing acceptable substitutes or by the 
 payment of a statutory sum of money. Dav- 
 is, Mil. Law. 51. 
 
 CONSEIL D'ETAT. This is one of the 
 oldest of French institutions, its origin dat- 
 ing back to 1302. Under a law of 1879 it 
 was reorganized as follows: President, the 
 keeper of the seals, who at the same time 
 is invariably the Minister of Justice. There 
 are thirty-two councillors (ordinary) and 
 eighteen councillors (extraordinary) and 
 
 rv. 
 
 Great-grandfather's 
 
 father. 
 
 4 
 
 
 
 
 \ 
 
 
 
 m. 
 
 Great-grandfather. 
 3 
 
 
 V. 
 Great-grandun cle. 
 
 4 
 
 
 
 
 \ 
 
 
 
 II. 
 
 Grandfather. 
 2 
 
 
 TV. 
 
 Great-uncle. 
 
 3 
 
 
 
 
 \ 
 
 
 \ 
 
 
 
 I. 
 
 Father. 
 1 
 
 
 in. 
 
 Uncle, 
 o 
 
 
 V. 
 
 Great-uncle's son. 
 
 
 
 
 \ 
 
 
 
 
 \ 
 
 
 Intestate or person 
 proposed. 
 
 
 H. 
 
 Brother. 
 1 
 
 
 IV. 
 
 Cousin prerman. 
 2 
 
 
 VI. 
 
 Second cousin. 
 
 3 
 
 
 
 
 
 k 
 
 
 \ 
 
 
 I. 
 
 Son. 
 
 1 
 
 
 III. 
 
 Nephew. 
 
 2 
 
 \> 
 
 V. 
 
 Son of the cousin- 
 
 german. 
 
 3 
 
 
 
 
 
 \ 
 
 
 11. 
 
 Grandson. 
 
 2 
 
 
 
 IV. 
 
 Son of the nephew, 
 
 or brother's 
 
 grandson. 
 
 3 
 
 
 
 
 
 in. 
 
 Great-grandson. 
 3 

 
 CONSEIL D'ETAT 
 
 611 
 
 CONSENT 
 
 thirty assistant councillors. It decides upon 
 state questions and measures proposed for 
 legislation, submitted to it by tbe President 
 of the Republic and by tbe members of the 
 Cabinet. It advises in connection with tails 
 submitted by Parliament for its considera- 
 tion and bills prepared by the government, 
 and proposed decrees. Matters relating to 
 public administration come within the scope 
 of its duties. Coxe, Manual of French Law. 
 
 CONSEILLE DE FAMILLE (Fr.). A 
 family council, which see. 
 
 CONSENSUAL CONTRACT. In Civil Law. 
 A contract completed by the consent of the 
 parties merely, without any further act. 
 
 The contract of sale, among the civilians, Is an 
 example of a consensual contract, because the 
 moment there Is an agreement between the seller 
 and the buyer as to the thing and the price, the 
 vendor and the purchaser have reciprocal actions. 
 On the contrary, on a loan, there is no action by 
 the lender or borrower, although there may have 
 been consent, until the thing is delivered or the 
 money counted ; Pothier, Obi. pt. 1, c. 1, 8. 1, art. 
 2; 1 Bell, Comm. 435. 
 
 CONSENSUS AD IDEM. An agreement 
 of parties to the same thing; a meeting of 
 minds. See Agreement. 
 
 CONSENT (Lat. con, with, together, sen- 
 tire, to feel). A concurrence of wills. 
 
 Express consent is that directly given, ei- 
 ther viva voce or in writing. 
 
 Implied consent is that manifested by 
 signs, actions, or facts, or by inaction or 
 silence, from which arises an inference that 
 the consent has been given. 
 
 Consent supposes a physical power to act, 
 a moral power of acting, and a serious, de- 
 termined, and free use of these powers. 
 Fonblanque, Eq. b. 1, c. 2, s. 1. Consent is 
 implied in every agreement. See Agree- 
 ment ; Contract. 
 
 Where a power of sale requires that the 
 sale should be with the consent of certain 
 specified individuals, the fact of such con- 
 sent having been given ought to be evinced 
 in the manner pointed out by the creator of 
 the power, or such power will not be con- 
 sidered as properly executed ; 10 Yes. Ch. 
 308, 378. See as to consent in vesting or di- 
 vesting legacies; 2 V. & B. 234; 3 Yes. Ch. 
 239 ; 12 id. 19 ; 3 Bro. C. C. 145 ; 1 Sim. & S. 
 172. As to implied consent arising from 
 acts, see Estoppel in Pais. 
 
 See Hakm Chand, Law of Consent. 
 
 In Criminal Law. No act shall be deemed 
 a crime if done with the consent of the par- 
 ty injured, unless it be committed in public, 
 and is likely to provoke a breach of the 
 peace, or tends to the injury of a third par- 
 ty ; provided no consent can be given which 
 will deprive the consentei of any inalienable 
 right; A. & E. Encyc; Desty, Cr. L. § 33. 
 The one who gives consent must be capable 
 of doing so; 1 Wnar. Cr. L. § 146; Hadden 
 v. People, 25 N. Y. 373, But by statutes in 
 
 various states a female child under a cer- 
 tain specified age cannot consent to sexual 
 intercourse. See Rape. 
 
 CONSENT JUDGMENT. One entered by 
 agreement of the parties. 
 
 Proceedings at the instance of one party 
 to a cause are not taken by c limply 
 
 because the other party had notice and 'lid 
 aot object ; Jennings v. R. Co., 218 U. 8. 
 31 Sup. Ct 1, 54 L. Ed. 103L 
 
 CONSENT RULE. An entry of record by 
 the defendant, confessing the lease, entry, 
 and ouster by the plaintiff, in an action of 
 ejectment. This was. until recently, ui 
 England, and still is in those stale- in which 
 ejectment is still retained as a means of ac- 
 quiring possession of land. 
 
 The consent rule contains the following 
 particulars, viz.: first, the person appear- 
 ing consents to be made defendant instead 
 of the casual ejector ; second, he agrees to 
 appear at the suit of the plaintiff, and, if 
 the proceedings are by bill, to file common 
 bail; third, to receive a declaration in eject- 
 ment, and to plead not guilty ; fourth, at the 
 trial of the case, to confess lease, entry, and 
 ouster, and to insist upon his title only ; 
 fifth, that if, at the trial, the party appear- 
 ing shall not confess lease, entry, and ouster, 
 whereby the plaintiff shall not be able to 
 prosecute his suit, such party shall pay to 
 the plaintiff the cost of the non pros., and 
 suffer judgment to be entered against the 
 casual ejector; sixth, that if a ver«li t shall 
 be given for the defendant, or the plaintiff 
 shall not prosecute his suit for any other 
 cause than the non-confession of lease, en- 
 try, and ouster, the lessor of the plaintiff 
 shall pay costs to the defendant; seventh. 
 that, when the landlord appears alone, the 
 plaintiff shall be at liberty to si.sn judgment 
 immediately against the casual ejector, but 
 that execution shall be stayed until the 
 court shall further order; Ad. Eject. 233. 
 See, also, Jackson v. Stiles, 2 Cow. (N. Y.) 
 442; Jackson v. Denniston, 4 Johns. (N. Y.) 
 311. 
 
 CONSENTIBLE LINES. See Line. 
 
 CONSEQUENTIAL DAMAGES. Those 
 
 damages which arise not from the immedi- 
 ate act of the party, but as an incidental 
 consequence of such act. See Dam \ 
 
 CONSERVATOR (Lat. consrrvarc, to pre- 
 serve!. A preserver; one whose bus:: 
 is to attend to the enforcement of certain 
 
 statutes. 
 
 A delegated umpire or standing arbitra- 
 tor, chosen to compose and adjust difficulties 
 arising between two parties. CowelL 
 
 A guardian. So used In Connecticut. 
 Woodford v. Webster. 3 Day (Conn.) 47:!: 
 Treat v. Peck, ."> Conn. 280; Hutching v. John- 
 son, 12 Conn. 37G, 30 Am. Dec. 022. 
 
 See Conservator Trucis.
 
 CONSERVATOR OF THE PEACE 
 
 612 
 
 CONSIDERATION 
 
 CONSERVATOR OF THE PEACE. He 
 
 who hath an especial charge, by virtue of 
 his office, to see that the king's peace be 
 kept. 
 
 Before the reign of Edward III., who created 
 Justices of the peace, there were sundry persons 
 interested to keep the peace, of whom there were 
 two classes: one of which had the power annexed 
 to the office which they hold; the other had it mere- 
 ly by itself, and were hence called wardens or con- 
 servators of the peace. Lambard, Eirenarchia, 1. 1, 
 c. 3. This latter sort are superseded by the modern 
 Justices of the peace; 1 Bla. Com. 349. 
 
 The king was the principal conservator of the 
 peace within all his dominions. The lord chancel- 
 lor or keeper, the lord treasurer, the lord high 
 steward, the lord marshal and lord high constable, 
 all the justices of the court of king's bench (by vir- 
 tue of their offices), and the master of the rolls (by 
 prescription) were general conservators of the peace 
 throughout the whole kingdom, and might commit 
 all breakers of it, or bind them in recognizances to 
 keep it: the other judges were only so in their own 
 courts. The coroner was also a conservator of the 
 peace within his own county, as also the sheriff, and 
 both of them might take recognizances or security 
 for the peace. Constables, tythingmen, and Justices 
 of the peace were also conservators of the peace 
 within their own jurisdiction; and might apprehend 
 all breakers of the peace, and commit them until 
 they found sureties for their keeping it. See Steph- 
 en, Hist. Cr. L. 110 ; Burns Justice ; 19 State Tr. 
 (Judgment of Lord Camden). 
 
 The judges and other similar officers of 
 the various states, and also of the United 
 States, are conservators of the public peace, 
 being entitled "to hold to the security of the 
 peace and during good behavior." 
 
 The Constitution of Delaware (1831) pro- 
 vides that : "The members of the senate and 
 house of representatives, the chancellor, the 
 judges, and the attorney-general shall, by 
 virtue of their offices, be conservators of the 
 peace throughout the state ; and the treasur- 
 er, secretary, and prothonotaries, registers, 
 recorders, sheriffs, and coroners, shall, by 
 virtue of their offices, be Conservators there- 
 of within the counties respectively in which 
 they reside." 
 
 CONSERVATOR TRUCIS (Lat). An of- 
 ficial appointed under an English act of 1414 
 passed to prevent breaches of truces made, 
 or of safe conducts granted, by the king. 2 
 Holdsw. Hist. E. L. 392. 
 
 Such offences are declared to be treason, 
 and such officers are appointed in every port, 
 to hear and determine such cases, "accord- 
 ing to the ancient maritime law then prac- 
 tised in the admiral's court as may arise 
 upon the high seas, and with two associates 
 to determine those arising upon land." 4 
 Bla. Com. 69. 
 
 CONSIDER, CONSIDERED. See Consid- 
 
 EEATUM EST PER CURIAM. 
 
 CONSIDERATION. An act or forbear- 
 ance, or the promise thereof, which is offer- 
 ed by one party to an agreement, and accept- 
 ed by the other as an inducement to that 
 other's act or promise. Poll. Contr. 91. 
 
 Blackstone defines it to be the reason 
 which moves a contracting party to enter 
 into a contract (2 Com. 443) ; Burgher v. R. 
 
 Co., 139 Mo. App. 62, 120 S. W. 673 ; but this 
 definition is manifestly defective because it 
 is within the distinction taken by Patteson, 
 J., who says : "It is not to be confounded 
 with motive, which is not the same thing as 
 consideration. The latter means something 
 which is of value in the eye of the law, mov- 
 ing from the plaintiff, either of benefit to 
 the plaintiff or of detriment to the defend- 
 ant;" Langd. Sel. Cas. Contr. 168; s. c. 2 
 Q. B. 851. In distinguishing between con- 
 sideration and motive a helpful criterion is 
 to be found In the expression "nothing is 
 consideration that is not regarded as such 
 by both parties ;" Philpot v. Gruninger, 14 
 Wall. (U. S.) 570, 577, 20 L. Ed. 743; Ellis 
 v. Clark, 110 Mass. 389, 14 Am. Rep. 609; 
 Sterne v. Bank, 79 Ind. 549, 551. 
 
 The price, motive, or matter of inducement 
 to a contract, — whether it be the compensa- 
 tion which is paid, or the inconvenience 
 which is suffered by the party from whom 
 it proceeds. A compensation or equivalent 
 A cause or occasion meritorious, requiring 
 mutual recompense in deed or in law. Viner, 
 Abr. Consideration (A). 
 
 Consideration, in a contract, is the quid 
 pro quo that the party to whom the promise 
 is made does or agrees to do in exchange for 
 the contract. Phoenix Mut. Life Ins. Co. v. 
 Raddin, 120 U. S. 197, 7 Sup. Ct, 500, 30 
 L. Ed. 644. See also Pollock, Contracts 
 (1902 Ed.). 
 
 It is also defined as "any act of the plaintiff from 
 which the defendant or a stranger derives a benefit 
 or advantage, or any labor, detriment, or inconven- 
 ience sustained by the plaintiff, however small, if 
 such act is performed or inconvenience suffered by 
 the plaintiff by the consent, express or implied, of 
 the defendant." Tindal, C. J., in 3 Scott 250. Ac- 
 cording to Kent it must be given in exchange, mu- 
 tual, an inducement to the contract, lawful, and 
 of sufficient value, with respect to the assumption. 
 2 Com. 464. 
 
 "The name consideration appeared only about the 
 10th century, and we do not know by what steps it 
 became a settled term of art." Pollock Contr. 170. 
 That it was not borrowed from equity as a modifi- 
 cation of the Roman Law causa, see Causa. 
 
 Concurrent considerations are those which 
 arise at the same time or where the prom- 
 ises are simultaneous and reciprocal. 
 
 Continuing considerations are those which 
 consist of acts wbich must necessarily con- 
 tinue over a considerable period of time. 
 
 Executed considerations are acts done or 
 values given at the time of making the 
 contract. Leake, Contr. 18, 612. 
 
 Executory considerations are promises to 
 do or give something at a future day. Ibid. 
 
 Good considerations are those of blood, 
 natural love or affection, and the like. 
 
 Motives of natural duty, generosity, and prudence 
 come under this class; 2 Bla. Com. 297; Batty v. 
 Carswell, 2 Johns. (N. Y.) 52; Ewing v. Ewing, 2 
 Leigh (Va.) 337; Carpenter v. Dodge, 20 Vt. 595; 
 1 C. & P. 401; Doran v. McConlogue, 150 Pa. 98, 
 24 Atl. 357 ; Mascolo v. Montesanto, 61 Conn. 50, 
 23 Atl. 714, 29 Am. St. Rep. 170. The only purpose 
 for which a good consideration may be effectual is 
 to support a covenant to stand seized to uses, in 
 favor of wife, child or blood relation. It Is good
 
 CONSIDERATION 
 
 613 
 
 CONSIDERATION 
 
 against a grantor when It has been executed ; Chit- 
 ty, Contr. 28; so of a gift; Candee v. Savings 
 Bank, 81 Conn. 372, 71 Atl. 551, 22 L. R. A. (N. S.) 
 568; but may be void against creditors and subse- 
 quent bona fide purchasers for value; Stat. 27 Eliz. 
 c 4 ; 10 B. & C. 606; Patterson v. Mills, 69 la. 755, 
 28 N. W. 53; Shep. Touchst. 512; Leake Contr. 442. 
 The term Is sometimes used In the sense of a 
 consideration valid in point of law; and it then in- 
 cludes a valuable as well as a meritorious consid- 
 eration; Hodgson v. Butts, 3 Cra. (U. S.) 140, 2 L. 
 Ed. 391; Lang v. Johnson, 24 N. H. 302; 2 Madd. 
 430; 3 Co. 81; Ambl. 598. Generally, however, good 
 Is used In antithesis to valuable. 
 
 Illegal considerations are acts, which if 
 done or promises which if enforced, would 
 be prejudicial to the public interest. Har- 
 riman, Cont 101. 
 
 Impossible considerations are those which 
 cannot be performed. 
 
 Moral considerations are such as are bas- 
 ed upon a moral duty. 
 
 Past consideration is an act done before 
 the contract is made, and is ordinarily by 
 itself no consideration for a promise; An- 
 son, Contr. S2. Pollock considers that 
 whether a past benefit is, in any case, a 
 good consideration is a question not free 
 from uncertainty. On principle it should 
 not be. Possible exceptions might be ser- 
 vices rendered on request, without definite 
 promise of reward (see Hob. 105) and vol- 
 untarily doing something which one was 
 legally bound to do. Also a promise to pay 
 a debt barred by the statute of limitations ; 
 but he considers that none of these excep- 
 tions are logical. See Poll. Contr. 170. 
 
 Valuable considerations are either some 
 benefit conferred upon the party by whom 
 the promise is made, or upon a third party 
 at his instance or request; or some detri- 
 ment sustained, at the instance of the party 
 promising, by the party in whose favor the 
 promise is made. Doct. & Stud. 179; Towns- 
 ley v. Sumrall, 2 Pet. (U. S.) 182, 7 L. Ed. 
 386 ; Violett v. Patton, 5 Cra. (U. S.) 142, 3 
 L. Ed. 61; Wright v. Wright, 1 Litt. (Ky.) 
 183; Powell v. Brown, 3 Johns. (N. Y.) 100; 
 Brewster v. Silence, 8 N. Y. 207 ; Forster v. 
 Fuller, Mass. 58, 4 Am. Dec. 87; Lemas- 
 ter v. Burckhart, 2 Bibb (Ky.) 30; Woold- 
 ridge v. Cates, 2 J. J. Marsh. (Ky.) 222; 
 Parmer v. Stewart, 2 N. II. 97; Shenk v. 
 Mingle, 13 S. & R. (Pa.) 29; Tompkins v. 
 Philips, 12 Ga. 52; Odineal v. Barry, 24 
 Miss. 9; Dunbar v. Bonesteel, 3 Scam. (111.) 
 33; Taylor v. Mock, 4 Blackf. (Ind.) 3S8; 
 3 C. B. 321; Hodge v. Powell, 96 N. C. 67, 
 2 S. E. 1S2, 60 Am. Rep. 401. The detri- 
 ment to the promisee must be a detriment 
 on entering into the contract and not from 
 the breach of it; Ridgway v. Grace, 2 
 Misc. 293, 21 N. Y. Supp. 934. 
 
 "A valuable consideration may consist 
 either in some right, interest, profit, or bene- 
 fit accruing to one party, or some forbear- 
 ance, detriment, loss, or responsibility giv- 
 en, suffered, or undertaken by the other." 
 L. R. 10 Ex. 162. See Train v. Gold, 5 Pick. 
 (Mass.) 380. 
 
 A valuable consideration is usually In some way 
 pecuniary, or convertible into money; and a very 
 slight consideration, provided it be valuable and free 
 from fraud, will support a contract ; Lawrence v. 
 McCalmont, 2 How. (U. S.) 426, 11 L. Ed. 326; Phelps 
 v. Stewart, 12 Vt. 259 ; Upson v. Raiford, 29 Ala. 
 188; Harlan v. Harlan, 20 Pa. 303; Sanborn v. 
 French, 22 N. H. 246; 11 Ad. & E. 983; Mathews v. 
 Meek. 23 Ohio St. 292. Valuable considerations are 
 divided by the civilians into four classes, which are 
 given, with literal translations: Do ut des (I give 
 that you may give), Facto ut facias (I do that you 
 may do), Faciu ut des (I do that you may give). 
 Do ut facias (I give that you may do). 
 
 Consideration has been treated as the 
 very life and essence of a contract ; and a 
 parol contract or promise for which then- 
 was no consideration could not be enforced 
 at law; Reading R. R. Co. v. Johnson, 7 
 W. & S. (Pa.) 317; Plowd. 308; Cumber v. 
 Wane, 1 Smith, Lead. Cas. 006; Mos- 
 by v. Leeds, 3 Call (Va.) 439; Cook v. 
 Bradley, 7 Conn. 57, 18 Am. Dec. 79 ; Brown 
 v. Adams, 1 Stew. (Ala.) 51, 18 Am. Dei 
 Thacher v. Dinsmore, 5 Mass. 301, 4 Am. 
 Dec. 61; Burnet v. Bisco, 4 Johns. (N. Y.) 
 235; Perrine v. Cheeseman, 11 N. J. L. 174, 
 19 Am. Dec. 3S8; Beverley s v. Holmes, 4 
 Munf. (Va.) 95; Westmoreland v. Walk- 
 er, 25 Miss. 70 : v. Vaughan, 30 Me. 
 412; Goldsborough v. Gable, 140 111. 269, 
 29 N. E. 722, 15 L. R. A. 294; McXntt v. 
 Loney, 153 Pa. 2S1, 25 Atl. 10SS ; Bush v. 
 Rawlins, S9 Ga. 117, 14 S. E. SS0; North 
 Atchison Bank v. Gay, 114 Mo. 203, 21 s. 
 W. 479; Brooke, Abr. Action sur le Case. 
 40; such a promise was often termed a 
 nudum pactum (ex nudo pacta non oritur 
 actio), or nude pact* This phrase was un- 
 doubtedly borrowed from the Roman law, 
 but its use in English law had no relation 
 whatever to its meaning in the Roman ; nor 
 is the word pact of the latter in any sense 
 related to the common-law contract. The 
 nudum pactum, as appears by the note cited 
 infra from Pollock, had not anciently in 
 England its modern signification of an i 
 ment without consideration in the sense of 
 the maxim quoted. In an elaborate note 
 to Pollock, Contracts 673, the learned author 
 calls attention to a difference between con- 
 sideration in the English law and its near- 
 est continental analogies, which difference, 
 he says, has not always been realized. The 
 actual history of the English doctrine is ob- 
 scure. The most we can affirm is that the 
 general idea was formed somewhere in the 
 latter part of the fifteenth century. At the 
 same time or a little later, nudum pactum 
 lost its ancient meaning (viz.: an agree- 
 ment not made by specialty so as to sup; orl 
 an action of covenant or falling within one 
 of certain classes so as to support an ac- 
 tion of debt), and came to mean what it 
 does now. The word consideration in the 
 sense now before us came into use, at least 
 as a settled term of art, still later. In the 
 early writers, consideration always means 
 the judgment of a court.
 
 CONSIDERATION 
 
 614 
 
 CONSIDERATION 
 
 The early cases of actions of assumpsit 
 show by negative evidence which is almost 
 conclusive that in the first half of the 15th 
 century, the doctrine of consideration was 
 quite unformed, though the phrase quid 
 pro quo is earlier. But in 1459 there was a 
 case which showed that an action of debt 
 would then lie on any consideration exe- 
 cuted. In the Doctor and Student (A. D. 
 1530) we find substantially the modern doc- 
 trine. So far as the writer of that work 
 knows, he finds the first full discussion of 
 consideration by that name in Plowden's 
 report of Sharington v. Strotton, Plowd. 298. 
 The question of consideration was of im- 
 portance in the learning of Uses before the 
 statute, and the reflection is obvious that 
 both the general conception and the name of 
 Consideration have had their origin in the 
 court of chancery in the law of uses and 
 have been thence imported into the law of 
 contracts rather than developed by the com- 
 mon-law courts. On this hypothesis, a con- 
 nection with the Roman causa may be sug- 
 gested with some plausibility. But see 
 Causa. 
 
 The same writer proceeds to say that in 
 the process thus sketched out some steps 
 are conjectural, and considers that the ma- 
 terials are not ripe for a positive conclu- 
 sion and will not be until the unpublished 
 records of mediaeval English law shall be 
 competently edited. See Holmes, Common 
 Law 253, where a different theory of the 
 origin of consideration is given as being a 
 generalization from the technical require- 
 ments of the action of debt in its earlier 
 form. 
 
 The theory on which the phrase nudum 
 pactum was wrongly applied was that the 
 maxim signified that a gratuitous promise 
 to do or pay anything on the one side, with- 
 out any compensation on the other, could 
 only be enforced, in the Roman law, when 
 made (or clothed) with proper words or 
 formalities — pactum verbis prescriptis ves- 
 titum; Vinnius, Com. de Inst. lib. 3, de 
 verborum obligationibus, tit. 16, p. 677; 
 Cod. lib. 7, tit. 52. This solemnity it was 
 argued had much the force of our seal, 
 which imported consideration, as it was 
 said, meaning that the formality implied 
 consideration in its ordinary sense i. e., de- 
 liberation, caution, and fulness of assent; 
 Hare, Contr. 146; 3 Bingh. Ill; 3 Burr. 
 1639; Wing v. Chase, 35 Me. 260; Augusta 
 Bank v. Hamblet, 35 Me. 491; Erickson v. 
 Brandt, 53 Minn. 10, 55 N. W. 62; but see 
 Winter v. Goebner, 2 Colo. App. 259, 30 
 Pac. 51. There was, however, the distinc- 
 tion often lost sight of but which ought to 
 be made that even on the theory that the 
 vitality of a seal was solely as a token of 
 the existence of a consideration, under the 
 common law it was not the fact that the in- 
 strument was under seal which gave it vi- 
 tality, but the consideration whose exist- 
 
 ence is implied therefrom, while, under 
 the civil law, the subject of consideration 
 bore no such relation to the contract as it 
 does under the English law even accepting 
 the theory of Stephen and other writers 
 stated under title Contract, q. v., that the 
 consideration is not an essential element of 
 a contract, — necessary to its existence. Un- 
 der the civil law it was of the essence of 
 certain contracts that they should be gra- 
 tuitous, and those based upon a considera- 
 tion constituted only a single division called 
 commutative contracts, which again was 
 subdivided into the four classes ■ represent- 
 ed by the formula quoted, supra, do et des, 
 etc. 
 
 While, therefore, the :Roman law doubt- 
 less exercised a large influence upon the 
 English law of contracts, the subject of con- 
 sideration particularly has been overlaid 
 with erroneous theories, and the ascertain- 
 ment of its true bearing long postponed, by 
 the pursuit of false analogies, due probably 
 to the early adoption of such phrases as the 
 above and their incorporation into the com- 
 mon law, to express superficial impressions 
 created by them rather than the meaning 
 attributed to them by the Roman jurists. 
 
 These analogies have, however, been in 
 recent years the subject of more careful in- 
 vestigation, and the study of the early Eng- 
 lish authorities and a greatly increased in- 
 terest in, and knowledge of, the Roman law, 
 have resulted in disturbing many of the 
 theories of consideration in its true relation 
 to the contract and the true meaning of the 
 seal as making a contract actionable which 
 would not be so if by parol. 
 
 The consideration is generally conclusive- 
 ly presumed from the nature of the con- 
 tract, when sealed; Grubb v. Willis, 11 S. 
 & R. (Pa.) 107; but in some of the states 
 the want or failure of a consideration may 
 be a good defence against an action on a 
 sealed instrument or contract; Solomon v. 
 Kimmel, 5 Binn. (Pa.) 232 ; Case v. Bough- 
 ton, 11 Wend. (N. Y.) 106 ; Leonard v. Bates, 
 1 Blackf. (Ind.) 173; Coyle's Ex'x v. Fowl- 
 er, 3 J. J. Marsh. (Ky.) 473 ; Peebles v. Ste- 
 phens, 1 Bibb (Ky.) 500; Matlock v. Gib- 
 son, 8 Rich. (S. C.) 437. 
 
 While one cannot deny the existence of 
 some consideration, so as to defeat a deed; 
 McGee v. Allison, 94 la. 527, 63 N. W. 322; 
 Weissenfels v. Cable, 208 Mo. 515, 106 S. W. 
 1028 ; it may be proved to have been greater 
 or less or different in character, as prop- 
 erty or services, instead of money, and the 
 like ; Jost v. Wolf, 130 Wis. 37, 110 N. W. 
 232; to the same effect; Jackson v. R. Co., 
 54 Mo. App. 636; Cheesman v. Nicholl, 18 
 Colo. App. 174, 70 Pac. 797; Martin v. 
 White, 115 Ga. 866, 42 S. E. 279. The re- 
 ceipt for the consideration money is only 
 prima facie evidence of its payment, which 
 may be rebutted by parol testimony; Smith 
 v. Arthur, 110 N. C. 400, 15 S. E. 197 ; R.
 
 CONSIDERATION 
 
 615 
 
 CONSIDERATION 
 
 A. Sherman's Sons Co. v. Mfg. Co., 82 Conn. 
 479, 74 Atl. 773. Parol evidence is admis- 
 sible to prove a promise to pay a considera- 
 tion in addition to that expressed in the 
 deed ; Allen v. Roes, 136 la. 423, 110 N. W. 
 583; 8 L. R. A. (N. S.) 1137; Henry v. Zur- 
 flieh, 203 Pa. 440, 53 Atl. 243; but if the 
 consideration is contractual, such evidence 
 is not admissible; Baum v. Lynn, 72 Miss. 
 932, 18 South. 428, 30 L. R. A. 441. 
 
 See note in 25 L. R. A. (N. S.) 1194. 
 
 "The truth is that neither consideration 
 or anything of the kind ever was necessary 
 in the case of a deed and ... a mere 
 acknowledgment of consideration received, 
 forming no part of a contract, is only evi- 
 dence, and bonce may be qualified or disput- 
 ed altogether." Bigelow, Estoppel, 478. 
 
 Where a deed states a consideration gross- 
 ly misrepresenting the value of the prop- 
 erty for the purpose of cheating and defraud- 
 ing another who relies on such representa- 
 tions, such statement of value may be made 
 the basis of an action for fraud ; Leonard 
 v. Springer, 197 111. 532, 64 N. E. 299. 
 
 Negotiable instruments also, as bills of 
 exchange and promissory notes, by statute 
 3 & 4 Anne (adopted as common law or by 
 re-enactment in the United States), carry 
 with them prima facie evidence of consid- 
 eration ; 4 Bla. Com. 445. See Bills of 
 Exchange; Negotiable Instruments. 
 
 The consideration, if not expressed (when 
 it is prima facie evidence of consideration), 
 in all parol contracts (oral or written), must 
 be proved ; this may be done by evidence 
 aliunde; Thompson v. Blanchard, 3 N. Y. 
 335; Tingley v. Cutler, 7 Conn. 291; Whit- 
 ney v. Stearns, 16 Me. 394; Bean v. Bur- 
 bank, 16 Me. 458, 33 Am. Dec. 681; Arms 
 v. Ashley, 4 Pick. (Mass.) 71 ; Cummings v. 
 Dennett, 26 Me. 397; Patchin v. Swift, 21 
 Vt. 292; Sloan v. Gibson, 4 Mo. 33. 
 
 Moral or equitable considerations are not 
 sufficient to support an express or implied 
 promise. They are only sufficient as be- 
 tween the parties in conveyances by deed, 
 and in transfers, not by deed, accompanied 
 by possession ; Scott v. Carruth, 9 Yerg. 
 (Tenn.) 41S ; 3 B. & P. 249. See 11 A. & E. 
 438; Mills v. Wyman, 3 Pick. (Mass.) 207. 
 These purely moral obligations are left by 
 the law to the conscience and good faith of 
 the individual. Baron Parke says, "A mere 
 moral consideration is nothing;" 9 M. & W. 
 501; Kennerly v. Martin, 8 Mo. 60S. See 
 In re James, 78 Hun 121, 28 N. Y. Supp. 
 992. It was at one time held in England 
 that an express promise made in conse- 
 quence of a previously existing moral obli- 
 gation created a valid contract; per Mans- 
 field, C. J., Cowp. 290; 5 Taunt, 36. This 
 doctrine was at one time received in the 
 United States, but appears now to be repu- 
 diated there; Poll. Contr. 168; except in 
 Pennsylvania; Cornell v. Vanartsdalen, 4 
 Pa. 364 ; Hemphill v. McClimans, 24 Pa. 370. 
 
 Where one is induced to become a surety for 
 another's husband and the promise by the 
 other party is void on account of coverture, 
 a subsequent promise made after the dis- 
 ability was removed is void fur lack of con- 
 tion; llollaway's - v. Rudv, 
 
 60 S. W. 650, 22 Ky. L. L I.. K. 
 
 A. 353. 
 
 It is often said that a moral obligation is 
 sufficient consideration; but it is a rule, 
 that such moral obligation must be one 
 which has once been valuable and en. 
 able at law, but has ceased to be so by the 
 operation of the statute of limitations, or 
 by the intervention of bankruptcy f>>r in- 
 stance. The obligation, in such case, re- 
 mains equally strong on the conscience of 
 the debtor. The rule amounts only to a 
 permission to waive certain positive rules 
 of law as to remedy; PolL Contr. 623; 2 
 Bla. Com. 445; Cowp. 290; 3 B. ft P. 249, 
 n.; 2 East 506; 2 Ex. 90; 8 Q. B. 1ST; Way 
 v. Sperry, 6 Cush. (Mass.) 238, 52 Am Dec. 
 779; Turner v. Chrisman, 20 Ohio 332; 
 Bhle v. Judson, 24 Wend. (N. Y.) 97; War- 
 ren v. Whitney, 24 Me. 501, 41 Am. Dec. 406 ; 
 Paul v. Stackhouse, 38 Pa. 306; Smith v. 
 Ware, 13 Johns. (N. Y.) 259; Cook V. Brad- 
 ley, 7 Conn. 57, 18 Am. Dec. 79: llawley v. 
 Farrar, 1 Vt. 420; P.iddle v. Monro, 3 Pa. 
 172; Willing v. Peters, 12 s. ft K. (Pa.) 177; 
 Levy v. Cadot. 17 S. ft R. (Pa.) 120, 17 Am. 
 Dec. 650; Viser v. Bertrand, 14 Ark. 267; 
 Pritchard v. Howell, 1 Wis. 131, CO Am. 
 Dec. 363; Trumball v. Tilton, 21 N. II. 129; 
 Ellicott v. Turner. A Md. ITU. See Easley v. 
 Gordon, 51 Mo. App. 037; In re James, 78 
 Hun 121, 2S N. Y. Supp. 992; I 
 Bank, 125 Pa. 394. 17 Atl. 41S. But now, 
 by statute, in England a promise to pay a 
 debt barred by bankruptcy or one con- 
 tracted during infancy is void ; Leake, Contr. 
 318. If the moral duty were once a legal 
 one which could have been made available 
 in defence, it is equally within the rule; 
 Nash v. Russell, 5 Barb. (N. Y.t 556; Wat- 
 kins v. Halstead, 2 Sand!'. (N. Y.t 311 ; Phel- 
 an v. Kelloy. 25 Wend. (X. Y.) 389; Mardis 
 v. Tyler, 10 B. Monr. (Ky.) 382; Womack v. 
 Womack, 8 Tex. 397, 58 Am. Dec. 119. See 
 as to moral obligation as a consideration, 
 32 Cent. L. J. 53. 
 
 An express promise to perform a previous 
 legal obligation, without any new consider- 
 ation, does not create a now obligation; 7 
 Dowl. 7S1; Reynolds v. Nugent, 25 fad. 328; 
 15 C. B. 295; 10 Q. B. 689; Vanderbllt v. 
 Schreyer. 91 X. Y. 101 : Withers v. Ewing, 40 
 Ohio st. 460; Conover v. stiilweii. 34 x. J. L. 
 54; Cobb v. Cow, lory, 40 Vt 28, 94 Am. Dec. 
 370; Runnamaker v. Cordray, 54 111. 303; 
 Warren v. Hodge, 121 Mass. 108. The prom- 
 ise of one party under an existing contract to 
 perform his obligation is not a valid consid- 
 eration for a new promise by the other party ; 
 Wescott v. Mitchell, 95 Me. 377, 50 Atl. 21 ; 
 so where one party promises to do less than
 
 CONSIDERATION 
 
 616 
 
 CONSIDERATION 
 
 he has already agreed to do and the other 
 party promises to do more than he is oblig- 
 ed to do; Weed v. Spears, 193 N. Y. 289, 
 86 N. E. 10; and where the consideration 
 of the new contract is services which one is 
 legally bound to perform under a pre-exist- 
 ing contract; Alaska Packers' Ass'n v. Do- 
 menico, 117 Fed. 99, 54 C. C. A. 4S5; contra, 
 where additional compensation is promised 
 to induce another to complete his contract 
 after abandonment on account of unfore- 
 seen and unanticipated difficulties; Linz v. 
 Schuck, 106 Md. 220, 67 Atl. 2S6, 11 L. R. 
 A. (N. S.) 789,. 124 Am. St. Rep. 481, 14 Ann. 
 Cas. 495. Whether (a) the performance of 
 an existing contractual obligation or (b) a 
 new promise of such performance made to 
 a new promisee is a good consideration for 
 a new contract has been much discussed by 
 legal writers. That neither is good is main- 
 tained by Anson and Williston; that both 
 are good is the view of Ames (who even 
 holds that a new promise of the same thing 
 to the same promisee may be good) and Har- 
 riman; that (a) is not good, but (b) is, is 
 the opinion of Langdell, Leake and Pollock 
 and (for not quite the same reason) Beale. 
 See 20 L. Q. R. 9. See Articles on considera- 
 tion in 9 Harv. L. R. 233 ; 12 id. 517 ; 17 id. 
 71; 17 Yale L. Journal, 338; 17 L. Q. R. 415. 
 A valuable consideration alone is good as 
 against subsequent purchasers and attach- 
 ing creditors; and one which is rendered 
 at the request, express or implied, of the 
 promisor ; Dy. 172, n. ; 1 Rolle, Abr. 11, pi. 
 2, 3 ; 1 Ld. Raym. 312; 1 Wms. Saund. 264, 
 n. (1) ; 6 Ad. & E. 718; 3 C. & P. 36; 6 Am. 
 & W. 4S5; 3 Q. B. 234; Cro. Eliz. 442; 
 Hort v. Norton, 1 McCord (S. C.) 22. 
 
 Among valuable considerations may be 
 mentioned these: 
 
 In general, the waiver of any legal or 
 equitable right at the request of another is 
 sufficient consideration for a promise ; Knapp 
 v. Lee, 3 Pick. (Mass.) 452 ; Farmer v. Stew- 
 art, 2 N. H. 97 ; Nicholson v. May, 1 Wright 
 (Ohio) 660; Smith v. Weed, 20 Wend. (N. 
 Y.) 184, 32 Am. Dec. 525; Williams v. Alex- 
 ander, 39 N. C. 207; 4 B. & C. 8; Union 
 Bank v. Geary, 5 Pet. (U. S.) 114, 8 L. Ed. 
 60; 4 Ad. & E. 108; Heitsch v. Cole, 47 
 Minn. 320, 50 N. W. 235 ; Fraser v. Backus, 
 62 Mich. 540, 29 N. W. 92 ; Vogel v. Meyer, 
 23 Mo. App. 427. 
 
 Forbearance for a certain or reasonable 
 time to institute a suit upon a valid or 
 doubtful claim, but not upon one utterly 
 unfounded. This is a benefit to one party, 
 the promisor, and an injury to the other, 
 the promisee; 1 Rolle, Abr. 24, pi. 33 ; Com. 
 Dig. Action on the Case upon Assumpsit 
 (B, 1) ; L. :R. 7 Ex. 235 ; L. R. 10 Q. B. 92 ; 
 L. R. 2 C. P. 196; Busby v. Conoway, 8 Md. 
 55, 63 Am. Dec. 6S8 ; King v. Upton, 4 
 Greenl. (Me.) 387, 16 Am. Dec. 266; Elting 
 v. Yanderlyn, 4 Johns. (N. Y.) 237; Jenni- 
 son v. Stafford, 1 Cush. (Mass.) 168, 48 Am. 
 
 Dec. 594; Giles v. Ackles, 9 Pa. 147, 49 Am. 
 Dec. 551 ; McKinley v. Watkins, 13 111. 140 ; 
 Gilman v. Kibler, 5 Humphr. (Tenn.) 19; 
 Colgin v. Henley, 6 Leigh. (Va.) 85; 21 E. 
 L. & Eq. 199; Mills' Heirs v. Lee, 6 T. B. 
 Monr. (Ky.) 91, 17 Am. Dec. 118 ; Hargroves 
 v. Cooke, 15 Ga. 321; Boyd v. Freize, 5 
 Gray (Mass.) 553; Tappan v. Campbell, 9 
 Yerg. (Tenn.) 436; Sage v. Wilcox, 6 Conn. 
 81 ; 1 Bulstr. 41 ; Lonsdale v. Brown, 4 
 Wash. C. C. 14S, Fed. Cas. No. 8494; Down- 
 ing v. Funk, 5 Rawle (Pa.) 69; Hakes v. 
 Hotckkiss, 23 Vt. 235; Morgan v. Bank, 44 
 111. App. 582 ; 18 C. B. 273 ; Calkins v. Chand- 
 ler, 36 Mich. 320, 24 Am. Rep. 593 ; Wills v. 
 Ross, 77 Ind. 1, 40 Am. Rep. 279 ; Edgerton 
 v. Weaver, 105 111. 43; Johnston Harvester 
 Co. v. McLean, 57 Wis. 258, 15 N. W. 177, 
 46 Am. Rep. 39. "If an intending litigant 
 bona, fide forbears the right to litigate a 
 question of law or fact which it is not vex- 
 atious or frivolous to litigate, he does give 
 up something of value." Lord Bowen in 32 
 Ch. Div. 266, 291. An agreement to forbear 
 suit, though for an indefinite period, is suf- 
 ficient consideration ; Traders' Nat. Bank of 
 San Antonio v. Parker, 130 N. Y. 415, 29 
 N. E. 1094 ; Mathews v. Seaver, 34 Neb. 592, 
 52 N. W. 283; Lancaster v. Elliot, 42 Mo. 
 App. 503. 
 
 An invalid or not enforceable agreement 
 to forbear is not a good consideration; 
 suit may be brought immediately after the 
 promise is made. The forbearance must be 
 an enforceable agreement for a reasonable 
 time; Hardr. 5; 4 M. & W. 795; King v. 
 Upton, 4 Greenl. (Me.) 3S7, 16 Am. Dec. 266 
 Rix v. Adams, 9 Vt. 233, 31 Am. Dec. 619 
 L. R. 8 Eq. 36; Tucker v. Ronk, 43 la. SO 
 Prater v. Miller, 25 Ala. 320, 60 Am. Dec. 
 521; Kidder v. Blake, 45 N. H. 530; Mul- 
 holland v. Bartlett, 74 111. 58 ; Cline v. Tem- 
 pleton, 78 Ky. 550. But if a meritorious 
 claim is made in good faith, a forbearance 
 to prosecute it may be a good considera- 
 tion for a promise, although on the facts or 
 on the law the suit would have failed of 
 success; L. R. 5 Q. B. 449; Rue v. Meirs, 
 43 N. J. Eq. 377, 12 Atl. 369; 25 L. T. R. 
 504; 32 Ch. Div. 269; Hewett v. Currier, 63 
 Wis. 387, 23 N. W. S84 ; Fish v. Thomas, 5 
 Gray (Mass.) 45, 66 Am. Dec. 348 ; 10 Harv. 
 L. Rev. 113. 
 
 Forbearance to prosecute a claim honestly 
 made but not legally valid is no considera- 
 tion for a promise; Price v. Bank, 62 Kans. 
 743, 64 Pac. 639. 
 
 The prevention of litigation is a valid and 
 sufficient consideration; for the law favors 
 the settlement of disputes. Thus, a com- 
 promise or mutual submission of demands 
 to arbitration is a highly favored consider- 
 ation at law; Van Dyke v. Davis, 2 Mich. 
 145; Zane's Devisees v. Zane, 6 Munf. (Va.) 
 406; Taylor v. Patrick, 1 Bibb (Ky.) 168; 
 Truett v. Chaplin, 11 N. C. 178; Stoddard 
 v. Mix, 14 Conn. 12; Barlow v. Ins. Co., 4
 
 CONSIDERATION 
 
 617 
 
 CONSIDERATION 
 
 Mete. (Mass.) 270; Burnham v. Dunn, 35 N. 
 H. 556; Blake v. Peck, 11 Vt 483; Field v. 
 Weir, 28 Miss. 50; Mayo v. Gardner, 49 N. 
 C. 359; Pounds v. Richards, 21 Ala. 424; 
 Stoddart v. Mix, 14 Conn. 12; Banks v. Sear- 
 les, 2 McMull. (S. C.) 356; Coleman v. 
 Frum, 3 Scam. (111.) 378; Clarke v. Mcl'ar- 
 land's Ex'rs, 5 Dana (Ky.) 45; 21 E. L. & 
 Eq. 199; 5 B. & Aid. 117; Battle v. Mc- 
 Arthur, 49 Fed. 715; Robson v. Logging Co., 
 43 Fed. 364; White v. Hoyt, 73 N. Y. 514; 
 Barnes v. Ryan, 66 Hun 170, 21 N. Y. Supp. 
 127; Swem v. Green, 9 Colo. 358, 12 Pac. 
 202; Moon v. Martin, 122 Ind. 211, 23 N. E. 
 66S; 32 Ch. D. 266. 
 
 The giving up a suit instituted to try a 
 question respecting which the law is doubt- 
 ful, or is supposed by the parties to be 
 doubtful, is a good consideration for a 
 promise; Poll. Contr. 180; Leake, Contr. 626; 
 L. R. 5 Q. B. 241; Hunter v. Lauius, 82 Tex. 
 677, 18 S. W. 201; Haiuaker v. Eberley, 2 
 Uinn. (Pa.) 509, 4 Am. Dec. 477; 2 C. B. 548; 
 4 East 455; Feeter v. Weber, 78 N. Y. 334; 
 Parker v. Enslow, 102 111. 272. 40 Am. Rep. 
 588; Livingston v. Smith, 5 Pet (U. S.) 98, 
 
 8 L. Ed. 57; Eastou v. Easton, 112 Mass. 
 438; Graudin v. Grandin, 49 N. J. Law, 50S, 
 
 9 Atl. 756, 60 Am. Rep. 642 ; Feeter v. Weber, 
 78 N. Y. 334; Prout v. Fire Dist, 154 Mass. 
 453, 28 N. E. 679, and cases cited. 
 
 Incurring a legal liability to a third party 
 is a valid consideration for a promise by 
 the party at whose request the liability 
 was incurred; L. R. 8 Eq. 134. 
 
 Refraining from the use of liquor and 
 tobacco for a certain time at the request of 
 another, is a sufficient consideration for a 
 promise by the latter to pay a sum of 
 money; Hamer v. Sidway, 124 N. Y. 538, 27 
 N. E. 256, 12 L. R. A. 463, 21 Am. St. Rep. 
 693. 
 
 The assignment of a debt or chose in ac- 
 tion (unless void by reason of maintenance) 
 with the consent of the debtor, is a good 
 consideration for the debtor's promise to 
 pay the assignee. It is merely a promise 
 to pay a debt due, and the consideration 
 Is the discharge of the debtor's liability 
 to the assignor; 4 B. & C. 525; 13 Q. B. 54S; 
 Whittle v. Skinner, 23 Vt 532; Harrison v. 
 Knight, 7 Tex. 47; Edson v. Fuller, 22 X. 
 H. 185; 10 J. B. Moo. 34; 2 Bingh. 437; 1 
 Cr. M. & R. 430; Morse v. Bellows, 7 N. 
 II. 549, 28 Am. Dec. 372. Work and serv- 
 ice are perhaps the most common considera- 
 tions. 
 
 In the case of deposit or mandate it was 
 once held that there was no consideration; 
 Yelv. 4, 12S; Cro. Eliz. 883; the reverse is 
 now usually maintained; 10 J. B. Moo. 192; 
 2 M. & W. 143; M'Cl. & Y. 205; Robinson v. 
 Threadgill, 35 N. C. 39: Clark v. Gaylord, 
 24 Conn. 484; Coggs v. Bernard, 1 Sm. Lead. 
 Cas. 354. 
 
 In these 4 cases there does not appear to 
 be any benefit arising from the bailment to 
 
 the promisor. The definitions of mandate 
 and deposit exclude this. Nor dues any in- 
 jury at the time accrue to the promisee; the 
 bailment is fur his benefit e n t i : 
 
 Trust and confidence in another are said 
 to be the considerations which support this 
 contract. But we think parting with the 
 possession of a thing may be considered an 
 injury to the promisee, for which the pros- 
 pect of return was the consideration held 
 out by the promisor. 
 
 Mutual promises made at the same time 
 are concurrent considerations, and will sup- 
 port each other if both be legal and bind- 
 ing; Cro. Eliz. 543; 6 B. & O. 255; 3 B. - 
 Ad. 703; 3 E. L. & Eq. 420; Dorsey v. Pack- 
 wood, 12 How. (U. S.) 120, 13 L. Ed. 921; 
 Babcock v. Wilson, 17 Me. 372, 35 Am. Dec. 
 I'd.:; Forney v. Shipp, 49 X. 0. 527; Xott v. 
 Johnson, 7 Ohio St. 270; Cherry v. Smith, 3 
 Humphr. (Tenn.) 19, 39 Am. Dec. 150; Mil- 
 ler v. Drake, 1 Cai. (X. Y.) 45; Howe v. 
 O'Mally, 5 X. C. 287, 3 Am. Dec. 693; Mc- 
 Kinley v. Watkins, 13 111. 140; Byrd v. Fox, 
 8 Mo. 574; Flanders v. Wood, 83 Tex. 277. 18 
 s. w. r>72; Earle v. AngelL 157 Mass. 
 32 N. E. 164; Bracco v. Tighe, 75 Hun 140, 
 27 X. Y. Supp. 34. Yet the promise of an 
 infant is a consideration for the promise of 
 an adult. The infant may avoid his con- 
 tract, but the adult cannot; Boyden v. Boy- 
 den, 9 Mete. (Mass.) 519; McGinn v. Shaef- 
 fer, 7 Watts (Pa.) 412; Hunt v. Peake, 5 
 Cow. (N. Y.) 475, 15 Am. Dec. 475; Pool v. 
 Pratt, 1 D. Chipm. (Yt.) 252 : Cannon v. Als- 
 bury, 1 A. K. Marsh. (Ky.) 76, 10 Am. Dec. 
 709; Eubanks v. Peak, 2 Bail. (S. C.) 497; 3 
 Maule & S. 205. While a contract is execu- 
 tory, an agreement by one party to modify 
 it is a consideration fur a like agreement 
 by the other; Dickson v. Owens, 134 111. App. 
 561; and a contract of employment is not 
 lacking in mutuality because the party em- 
 ployed does not bind himself to continue 
 in the employment for a definite period; 
 Newhall v. Printing Co.. 105 Minn. 44, 117 
 X. W. 22S, 20 L. R. A. (X. S.) 899. 
 
 Marriage is a valuable consideration: 
 Whelan v. Whelan, 3 Cow. (X. Y.i 537; 
 Huston's Adm'r v. Cantril, 11 Leigh (Ya.i 
 136; Magniac v. Thompson, 7 ret. (U. s.) 348, 
 S L. Ed. 709; Donallen v. Lennox, 6 Dana 
 (Ky.) S9; 2 D. F. & J. 566; Edwards v. Mar- 
 tin. 39 ill. App. 145; Prlgnon v. Doussat. 
 1 Wash. VJ'.K 29 Pac. 1046. 31 Am. St Rep. 
 914; WhitehilTs Lessee v. Lousey. 2 Testes 
 (Pa.) 109; Xally v. Xally, 74 Ga. 669, 58 Am. 
 Rep. 458. A promise by one to support an- 
 other in consideration of the other party's 
 release of the first party from his promise 
 to marry her, is valid and enforceable; 
 Henderson v. Spra'tlen, 44 Colo. 278, 98 Pac. 
 14, 19 L. R. A. (X. S.) 655. 
 
 Subscriptions to shares in a chartered 
 company are said to rest upon sufficient con- 
 sideration ; for the company is obliged to 
 give the subscriber his shares, and he must
 
 CONSIDERATION 
 
 618 
 
 CONSIDERATION 
 
 pay for them; Pars. Contr. 377; Chester 
 Glass Co. v. Dewey, 16 Mass. 94, 8 Am. Dec. 
 128; New Bedford & B. Turnpike Corp. v. 
 Adams, 8 Mass. 138, 5 Am. Dec. 81; Curry 
 v. Rogers, 21 N. H. 247; Kennebec & P. R. 
 Co. v. Jarvis, 34 Me. 360; Barnes v. Perine, 
 
 15 Barb. (N. Y.) 249; Selma & T. R. Co. v. 
 Tipton, 5 Ala. 787, 39 Am. Dec. 344; State 
 Treasurer v. Cross, 9 Vt. 289, 31 Am. Dec. 
 626. 
 
 On the subject of voluntary subscriptions 
 for charitable purposes there is much con- 
 fusion among the authorities; Ives v. Sterl- 
 ing, 6 Mete. (Mass.) 310. A promise of a 
 subscription for the purchase of a church 
 site, followed by the subsequent contract 
 of the church for the land, is supported by 
 a valid consideration ; First Universalist 
 Church v. Pungs, 126 Mich. 670, 86 N. W. 
 235. See Subscription. 
 
 Illegal considerations can be no founda- 
 tion for a contract. Violations of morality, 
 decency, and policy are in contravention of 
 common law : as, contracts to commit, con- 
 ceal, or compound a crime. So, a contract 
 for future illicit intercourse, or in fraud of 
 a third party, will not be enforced. Ex tur- 
 pi contractu non oritur actio. But the act 
 in question is not always a criterion; e. g. 
 as to immoral considerations that which the 
 law considers is whether the promise has 
 a tendency to produce immoral results ; 
 hence while a promise of future illicit co- 
 habitation is an illegal consideration; L. R. 
 
 16 Eq. 275; Boigneres v. Boulon, 54 Cal. 
 146; Baldy v. Stratton, 11 Pa. 316; Harri- 
 man, Cont. 114 ; but a promise founded upon 
 past illicit cohabitation is not illegal ; Bunn 
 v. Winthrop, 1 Johns. Ch. (N. Y.) 329; but 
 simply voluntary and governed by the same 
 rules as other pas.t executed considerations; 
 Poll. Cont. 262. The illegality created by 
 statute exists when the statute either ex- 
 pressly prohibits a particular thing, or af- 
 fixes a penalty which implies prohibition, or 
 implies such prohibition from its object and 
 nature; 10 Ad. & E. 815; Donallen v. Len- 
 nox, 6 Dana (Ky.) 91; Brown's Adm'rs v. 
 Langford's Adm'rs, 3 Bibb (Ky.) 500; Town 
 of Hinesburgh v. Sumner, 9 Vt. 23, 31 Am. 
 
 • Dec. 599; Armstrong v. Toler, 11 Wheat. (U. 
 S.) 258, 6 L. Ed. 468; Deering v. Chapman, 
 22 Me. 488, 39 Am. Dec. 592 ; Gamble v. 
 Grimes, 2 Ind. 392; President, etc., of Spring- 
 field Bank v. Merrick, 14 Mass. 322 ; Sharp v. 
 Teese, 9 N. J. L. 352, 17 Am. Dec. 479; Aspin- 
 wall v. Meyer, 2 Sandf. (N. Y.) 186; Hale v. 
 Henderson, 4 Humphr. (Tenn.) 199; Lewis v. 
 Welch, 14 N. H. 294 ; Caldwell v. Wentworth, 
 id. 435; Cornwell v. Holly, 5 Rich. (S. C.) 
 47; Solomons v. Jones, 3, Brev. (S. C.) 54, 
 5 Am. Dec. 538 ; Miller v. Ammon, 145 U. S. 
 421, 12 Sup. Ct. 884, 36 L. Ed. 759. If any 
 part of the consideration is void as against 
 the law, it is void in toto; Woodruff v. Hin- 
 man, 11 Vt. 592, 34 Am. Dec. 712; Allen v. 
 Pearce, 84 Ga. 606, 10 S. E. 1015 ; see Wilcox 
 
 v. Daniels, 15 R. I. 261, 3 Atl. 204; Buck 
 v. Abbee, 26 Vt. 1S4, 62 Am. Dec. 564; Widoe 
 v. Webb, 20 Ohio St. 431, 5 Am. Rep. 664; 
 Hazelton v. Sheckels, 202 U. S. 71, 26 Sup. 
 Ct. 567, 50 L. Ed. 939, 6 Ann. Cas. 217; but 
 contra, if the promise be divisible and ap- 
 portionable to any part of the considera- 
 tion, the promise so far as not attributable 
 to the illegal consideration might be valid ; 
 Leake, Contr. 631 ; 2 M. & G. 167. 
 
 A contract founded upon an impossible 
 consideration is void. Lex neminem cogit 
 ad vana ant impossibilia ; 5 Viner, Abr. 110, 
 111, Condition (C) a, (D) a; 1 Rolle, Abr. 419; 
 Co. Litt. 206 a; 2 B. & C. 474; Leake, Contr. 
 719. But such impossibility must be a 
 natural or physical impossibility; 7 Ad. & E. 
 79S; Youqua v. Nixon, 1 Pet. C. C. 221, Fed. 
 Cas. No. 18,189; 2 Moore & S. 89; 9 Biugh. 
 68; but it may be otherwise when the con- 
 sideration is valid at the time the contract 
 was formed, but afterwards became im- 
 possible; Leake, Contr. 719. 
 
 An executory consideration which has 
 totally failed will not support a contract 
 when the performance of the consideration 
 forms a condition precedent to the perform- 
 ance of the promise; 2 C. B. 548; New York 
 Life Ins. Co. v. Beebe, 7 N. Y. 369; Fowler 
 v. Shearer, 7 Mass. 14; Woodward v. Cow- 
 ing, 13 Mass. 216; Pettibone v. Roberts, 2 
 Root (Conn.) 258; Dean v. Mason, 4 Conn. 
 428, 10 Am. Dec. 162; Boyd v. Anderson, 1 
 Ov. (Tenn.) 438, 3 Am. Dec. 762; Treat v. 
 Inhabitants of Orono, 26 Me. 217; Charlton 
 v. Lay, 5 Humphr. (Tenn.) 496; Cabot v. 
 Haskins, 3 Pick. (Mass.) 83; Jarvis v. Sut- 
 ton, 3 Ind. 289. Sometimes when the con- 
 sideration partially fails, the appropriate 
 part of the agreement may be apportioned 
 to what remains, if the contract is capable 
 of being severed ; 4 Ad. & E. 605; 8 M. & W. 
 870; Parish v. Stone, 14 Pick. (Mass.) 198, 
 25 Am. Dec. 378; Carleton v. Woods, 28 N. 
 H. 290; Frazier v. Thompson, 2 W. & S. 
 (Pa.) 235; L. R. 10 Q. B. 491; 1 Q. B. Div. 
 679; Wilson v. Hentges, 26 Minn. 288, 3 N. 
 W. 338. See Breach. 
 
 A past consideration will not generally 
 be sufficient to support a contract. It is 
 something done before the obligor makes 
 his promise, and, therefore, cannot be a 
 foundation for that promise, unless it has 
 been executed at the request (express or im- 
 plied) of the promisor. Such a request 
 plainly implies a promise of fair and rea- 
 sonable compensation; L. R. 8 Ch. 888; Car- 
 son v. Clark, 1 Scam. (111.) 113, 25 Am. Dec. 
 79; Doty v. Wilson, 14 Johns. (N. Y.) 378; 
 Gleason v. Dyke, 22 Pick. (Mass.) 393; Hay- 
 den v. Inhabitants of Madison, 7 Greenl. 
 (Me.) 76; Abbot v. Third School Dist., 7 
 Greenl. (Me.) 118; Comstock v. Smith, 7 
 Johns. (N. Y.) 87; Bulkley v. Landon, 2 Conn. 
 404; 1 Sm. Lead. Cas. 144, note to Lamp- 
 leigh v. Brathwait. But a pre-existing ob- 
 ligation will support a promise to perform
 
 CONSIDERATION 
 
 619 
 
 CONSIDERATION 
 
 that obligation which the law, In the case 
 of a debt, will Imply; Harriman, Contr. 83; 
 5 M. & W. 541; but a past consideration 
 which did not raise an obligation at the 
 time it was furnished, will support no prom- 
 ise whatever; 3 Q. B. 234; Harriman, Contr. 
 83 ; where there has been a request for serv- 
 •ices, a subsequent promise to pay a definite 
 sum for tliom is evidence of the actual value 
 of the services; id. Where a creditor gives 
 an extension of time for payment of a pre- 
 existing debt and takes a mortgage as se- 
 curity he is a purchaser for value; O'Brien 
 v. Fleckenstein, 180 N. Y. 350, 73 N. E. 30, 
 105 Am. St. Rep. 7G8; the promise to pay 
 for another's past services to and support of 
 defendant's mother during an illness is val- 
 id; Montgomery v. Downey, 110 la. 632, 88 
 N. W. 810; but an agreement to take up a 
 past due note without additional considera- 
 tion or a request or promise of forbear- 
 ance against the maker is without consid- 
 eration; J. II. Queal & Co. v. Peterson, 13S 
 la. 514, 116 N. W. 593, 19 L. R. A. (N. S.) 
 842. 
 
 As to time, considerations may be of the 
 past, present, or future. Those which are 
 present or future will support a contract 
 not void for other reasons; Story, Contr. 
 71. When the consideration is to do a thing 
 hereafter, and the promise has been accept- 
 ed, and a promise in return founded upon 
 it, the latter promise rests upon sufficient 
 foundation, and is obligatory ; Stewart v. 
 Redditt, 3 Md. 67; Hilton v. Southwick, 17 
 Me. 303, 35 Am. Dec. 253; Andrews v. Pon- 
 tue, 24 Wend. (N. Y.) 2S5; Gardner v. Web- 
 ber, 17 Pick. (Mass.) 407. 
 
 The adequacy of the consideration is gen- 
 erally immaterial; L. R. 5 Q. B. 87; 8 A. & 
 E. 745; L. R. 7 Ex. 235; 5 C. B. N. S. 265; 
 24 L. J. C. P. 271; 16 East 372; Hesser v. 
 Steiner, 5 W. & S. (Pa.) 476; Downing v. 
 Funk, 5 Rawle (Pa.) 69; excepting formerly 
 in England before 31 & 32 Vict. c. 4, in the 
 case of the sale Of a reversionary interest 
 or where the inadequacy of the consideration 
 is so gross as of itself to prove fraud or im- 
 position ; Judy v. Louderman, 48 Ohio St. 
 562, 29 N. E. 181. There is no case where 
 mere inadequacy of price, independent of 
 other circumstances has been held sufficient 
 to set aside a contract between parties stand- 
 ing on equal ground and dealing with each 
 other without imposition or oppression ; 
 Hind v. Holdship, 2 Watts (Pa.) 104, 26 Am. 
 Dec. 107; Williams v. Jensen, 75 Mo. 6S1; 
 Smock v. Fierson, 68 Ind. 405, 34 Am. Rep. 
 269; Wolford v. Powers, 85 Ind. 294, II 
 Am. Rep. 16; Wells v. Tucker, 57 Vt 227; 
 Worth v. Case, 42 N. Y. 309. The adequacy 
 of the consideration does not affect the con- 
 tract; Lawrence v. McCalmont, 2 How. (U. 
 S.) 426, 11 L. Ed. 326; but the consideration 
 must be real and not merely colorable; one 
 cent has been held not to be a sufficient con- 
 sideration for a promise to pay $700; Schnell 
 
 v. Nell, 17 Ind. 29, 79 Am. Dec. 453 ; and $1 
 has been held insufficient to support a prom- 
 ise to pay $1000; Shepard v. Rhodes. 7 R. I. 
 470, 84 Am. Dec. 573 ; a dollar would be a 
 sufficient consideration for any promise ex- 
 oepl nie to pay a larger sum of money ab- 
 solutely; Lawrence v. McCalmont, 2 How. 
 (U. S.) 426, 11 L. Ed. 326. A fully executed 
 contract will not be disturbed for want of 
 consideration; Lamb's Estate v. Morrow, 
 140 la. 89, 117 N. W. 1118, 18 L. R. A. (N. 
 
 s.) 226. 
 
 See note to Chesterfield v. Jannsen in 1 
 W. & T. Lead. Cas. ; Contract. 
 
 C0NSIDERATUM EST PER CURIAM 
 (Lat it is considered by the court). A for- 
 mula used in giving judgments. 
 
 A Judgment Is the decision or sentence of the law, 
 given by a court of justice, as the result of proceed- 
 ings Instituted therein for the redress of an injury. 
 The language of the Judgment is not, therefore, 
 that "It Is decreed," or "resolved," by the court, 
 but that "It Is considered by the court," considera- 
 tum est per curiam, that the plaintiff recover his 
 debt, etc. 
 
 In the early writers, considcrarc, consid- 
 cratio always means the judgment of a court. 
 This usage was preserved down to our time 
 in the judgment of the common-law courts in 
 the form "It is considered," which, as Sir 
 Frederick Pollock says, was for no obvious 
 reason altered to "It is adjudged, " in the 
 Judicature Acts. Poll. Contr. 177. "Adjudg- 
 ed" was current with text-writers from the 
 16th century onward 
 
 CONSIGN. To send goods to a factor or 
 agent. See Gillespie v. Wiuberg, 4 Daly (N. 
 Y.) 320. 
 
 In Civil Law. To deposit in the custody 
 of a third person a thing belonging to the 
 debtor, for the benefit of the creditor, under 
 the authority of a court of justice. Pothier, 
 Obi. pt. 3, c. 1, art. 8. 
 
 The term to consign, or consignation, Is derived 
 from the Latin consignare, which signifies to seal ; 
 for it was formerly the practice to seal up the 
 money thus received in a bag or box. Aso & M. 
 Inst. b. 2, t. 11, c. 1, § 5. 
 
 Generally, the consignation is made with a public 
 officer: it is very similar to our practice of paying 
 money into court. See Burge, Surety. 
 
 C0NSIGNATI0. See Consign. 
 
 CONSIGNEE. One to whom a consign- 
 ment is made. 
 
 It is usual in lulls of lading to state that 
 the goods are to be delivered to the con- 
 signee or his assigns, he or they paying 
 freight: in such case the consignee or his 
 assigns, by accepting the goods, by implica- 
 tion become bound to pay the freight; Du 
 Peirat v. Wolfe. U!» N. Y. 436; Dart v. En- 
 sign, 47 N. Y. G19; 3 Bingh. 383. 
 
 CONSIGNMENT. The goods or property 
 sent by means of a common carrier by one 
 or more persons, called the consignors, in 
 one place, to one or more persons, called the 
 consignees, who are in another. The goods 
 sent by one person to another, to be sold or
 
 CONSIGNMENT 
 
 620 
 
 CONSOLIDATE 
 
 disposed of by the latter for and on account 
 of the former. The transmission of the 
 goods. 
 
 CONSIGNOR. One who makes a consign- 
 ment. 
 
 CONSILIARIUS (Lat consiliare, to ad- 
 vise). In Civil Law. A counsellor, as dis- 
 tinguished from a pleader or advocate. An 
 assistant judge. One who participates in 
 the decisions. Du Cange. 
 
 CONSILIUM (called, also, Dies Consilii). 
 A day appointed to hear the counsel of both 
 parties. A case set down for argument. 
 
 It is commonly used for the day appointed 
 for the argument of a demurrer, or errors 
 assigned; 1 Tidd, Pr. 43S; 2 id. 684, 1122; 
 1 Sell. Pr. 336 ; 1 Archb. Pr. 191, 246. 
 
 CONSIMILI CASU (Lat. in like case). A 
 writ of entry, framed under the provisions 
 of the statute Westminster 2d (13 Edw. I.), 
 c. 24, which lay for the benefit of the rever*- 
 sioner, where a tenant by the curtesy alien- 
 ed in fee or for life ; 3 Bla. Com., 4th Dublin 
 ed. 183 n. ; Bac. Abr. Court of Chancery (A). 
 
 Many other new writs were framed under the 
 provisions of this statute; but this particular writ 
 was known emphatically by the title here defined. 
 The writ is now practically obsolete. See 3 Bla. 
 Com. 51 ; Case ; Assumpsit. 
 
 CONSISTOR. A magistrate. Jacob L. D. 
 
 CONSISTORY. An assembly of cardinals 
 convoked by the pope. 
 
 The consistory is either public or secret. It Is 
 public when the pope receives princes or gives 
 audience to ambassadors; secret when he fills va- . 
 cant sees, proceeds to the canonization of saints, 
 or judges and settles certain contestations sub- 
 mitted to him. 
 
 A tribunal (prwtorium). 
 
 CONSISTORY COURT. The courts of dio- 
 cesan bishops held in their several cathedrals 
 {before the bishop's chancellor, or commis- 
 sary, who is the judge) for the trial of all 
 ecclesiastical causes arising within their re- 
 spective dioceses, and also for granting pro- 
 bates and administrations. Originally the 
 "Chancellor" or "Official" of the bishop usual- 
 ly presided. In time he came to be a per- 
 manent judge, but the bishop could withdraw 
 cases from his cognizance and hear them 
 himself, or delegate jurisdiction over certain 
 parts of the diocese to his "commissary" ; 1 
 Holdsw. Hist. E. L. 369, citing L. R. 1902, 1 K. 
 B. 816. A Consistory Court of London still 
 exists. From the sentence of these courts 
 an appeal lies to the Provincial Court of the 
 archbishop of each province respectively. 2 
 Steph. Com. 230; 3 id. 430; 3 Bla. Com. 64; 
 1 Woodd. Lect. 145 ; Halifax, An. b. 3, c. 10, 
 n. 12. 
 
 C0NS0LAT0 DEL MARE. See Code. 
 
 CONSOLIDATE. To unite into one dis- 
 tinct things or parts of a thing. In a gen- 
 eral sense, to unite into one mass or body, 
 as to consolidate the forces of an army or 
 
 various funds. In parliamentary usage, to 
 consolidate two bills is to unite them into 
 one. In law, to consolidate benefices, actions, 
 or corporations is to combine them into one. 
 See Independent Dist, of Fairview v. Dur- 
 land, 45 la. 56. 
 
 CONSOLIDATED FUND. In England. 
 (Usually abbreviated to Consols.) A fund 
 for the payment of the public debt 
 
 Formerly, when a loan was made by government, 
 a particular part of the revenue was appropriated 
 for the payment of the interest and principal. This 
 was called the fund; and every loan had its fund. 
 In this manner the Aggregate fund originated in 
 1715; the South-Sea fund in 1717; the General fund 
 in 1717 ; and the Sinking fund, into which the sur- 
 plus of these flowed, which, although intended for 
 the diminution of the debt, was applied to the neces- 
 sities of the government. These four funds were 
 consolidated into one in the year 1787 ; and this 
 fund is the Consolidated fund. 
 
 It is wholly appropriated to the payment of cer- 
 tain specific charges and the interest on the sums 
 originally lent the government by individuals, which 
 yield an annual interest of three per cent, to the 
 holders. The principal of the debt is to be returned 
 only at the option of the government. 
 
 CONSOLIDATION. In Civil Law. The 
 
 union of the usufruct with the estate out of 
 which it issues, in the same person ; which 
 happens when the usufructuary acquires the 
 estate, or vice versa. In either case the usu- 
 fruct is extinct. Lee. Elm. Dr. Rom. 424. 
 
 CONSOLIDATION OF CORPORATIONS. 
 See Merger. 
 
 CONSOLIDATION RULE. An order of 
 the court requiring the plaintiff to join in one 
 suit several causes of action against the same 
 defendant which may be so joined consist- 
 ently with the rules of pleading, but upon 
 which he has brought distinct suits. Brown 
 v. Scott, 1 Dall. (Pa.) 147, 1 L. Ed. 74 ; Groff 
 v. Musser, 3 S. & R. (Pa.) 264 ; 2 Archb. Pr. 
 1S0. The matter is regulated by statute in 
 many of the states. 
 
 It may take place in two ways: first, by the usu- 
 fructuary surrendering his right to the proprietor, 
 which in the common law is called a surrender; 
 secondly, by the release of the proprietor of his 
 rights to the usufructuary, which in our law is 
 called a release. 
 
 In Ecclesiastical Law. The union of two 
 or more benefices in one. Cowell. 
 
 In Practice. The union of two or more ac- 
 tions in the same declaration. 
 
 An order of court, issued in some cases, 
 restraining the plaintiff from proceeding to 
 trial in more than one of several actions 
 brought against different defendants but in- 
 volving the same rights, and requiring the 
 defendants also, in such actions, to abide the 
 event of the suit which is tried. It is in 
 reality in this latter case a mere stay of pro- 
 ceedings in all the cases but one. 
 
 It is often issued where separate suits are 
 brought against several defendants founded 
 upon a policy of insurance; 2 Marsh. Ins. 
 701 ; see Jackson v. Schauber, 4 Cow. (N. Y.) 
 78; Sherman v. McNitt, id. 85; or against 
 several obligors in a bond; 3 Chit. Pr. 645;
 
 CONSOLIDATION RULE 
 
 621 
 
 CONSPIRACY 
 
 3 C. & P. 58. See Scott v. Brown, 1 N. & 
 McC. (S. C.) 417, note; Powell v. Gray, 1 Ala. 
 77; Dews v. Eastham, 5 Yerg. (Tenn.) 297; 
 Sykes v. Ins. Co., 7 Mo. 477; Den v. Feu, 9 
 N. J. L. 335 ; Groff v. Musser, 3 S. & R. (Pa.) 
 262; Farmers' & Manufacturers' Bank v. 
 Tracy, 19 Wend. (N. Y.) 23. 
 
 A court may consolidate actions for trial 
 when they involve the same property and the 
 same questions of law and fact and the par- 
 ties are the same; Welch v. Lynch, 30 App. 
 D. C. V2-2. 
 
 Where two actions arose upon the same 
 transaction, one for trespass against de- 
 fendant's property, another against his per- 
 son, and might have been joined, the court 
 ordered them tried at the same time ; Holmes 
 v. Sheridan, 1 Dill. 351, Fed. Cas. No. 6,644. 
 
 When two actions are consolidated, the 
 original actions are discontinued and only 
 the consolidated action remains ; Iliscox v. 
 New Yorker Staats Zeitung, 30 Abb. N. C. 
 (N. Y.) 131 ; id., 3 Misc. Rep. 110, 23 N. Y. 
 Supp. 682. 
 
 The Federal courts are authorized to con- 
 solidate actions of a like nature, or relative 
 to the same question, as they may deem rea- 
 sonable ; Rev. Stat. § 921. 
 
 CONSOLS. See Consolidated Fund. 
 
 CONSORTIUM (Lat. a union of lots or 
 chances). A lawful marriage. Union of par- 
 ties in an action. 
 
 The right of the husband and wife respect- 
 ively to the conjugal fellowship, company, co- 
 operation and aid of the other. 
 
 Company ; companionship. 
 
 It occurs in this last sense in the phrase per quod 
 consortium amisit (by which he has lost the com- 
 panionship), used when the plaintiff declares for 
 any bodily injury done to his wife by a third per- 
 son, 3 Bla. Com. 140. 
 
 It is not property, but "a marital right 
 growing out of the marriage relation"; Hodge 
 v. Wetzler, 69 N. J. L. 490, 55 Atl. 49; but 
 is treated as property in a broader sense in 
 some cases ; Jaynes v. Jaynes, 39 Hun (N. 
 Y.) 40; Deitzman v. Mullin, 10S Ky. 610, 57 
 S. W. 247, 50 L. R. A. SOS, 94 Am. St. Rep. 
 390; Warren v. Warren, S9 Mich. 123, 50 
 N. W. 842, 14 L R. A. 545. "It usually in- 
 cludes the person's affection, society and 
 aid," and, as to it, the husband and wife 
 are equal ; Bennett v. Bennett, 116 N. Y. 
 5S4, 23 N. E. 17, 6 L. R. A. 553, where the 
 term is discussed at length. See Husband 
 and Wife. 
 
 CONSPIRACY (Lat. con, together, spiro, to 
 breathe). A combination of two or more per- 
 sons by some concerted action fo accomplish 
 some criminal or unlawful purpose, or to ac- 
 complish some purpose, not in itself crim- 
 inal or unlawful, by criminal or unlawful 
 means. Pettibone v. U. S., 148 U. S. 203, 13 
 Sup. Ct. 542, 37 L. Ed. 419; Com. v. Hunt, 4 
 Mete. (Mass.) Ill, 38 Am. Dec. 346; People 
 
 v. Mather, 4 Wend. (N. Y.) 229, 21 Am. Dec. 
 122 ; State v. Burnham, 15 N. H. 396 ; State 
 v. Buchanan, 5 H. & J. (Md.) 317, 9 Am. Dec. 
 .">.:i; Collins v. Com., 3 S. & B. 
 Stale v. Rowley, 12 Conn. 101; 11 CI. & F. 
 155; Alderman v. People, 4 Mich. 411. 69 
 Am. Dec. 321; Breitenberger v. Schmidt, 38 
 111. App. 168. 
 
 Lord Denman defines conspiracy as a com- 
 bination for accomplishing an unlawful end 
 or a lawful end by unlawful means ; 4 B. 
 & Ad. 345. 
 
 Criminal Conspiracy. Conspiracies formed 
 to commit crimes, or to do anything unlaw- 
 ful, were first treated as substantive offenses 
 by the Star Chamber; 2 Steph. II. C. L 227; 
 before that, a conspiracy only extended to 
 taking civil and criminal proceedings mali- 
 ciously ; 3 Holdsw. II. E. L. 313. In a prose- 
 cution for a conspiracy at common law it 
 was neither necessary to aver nor to prove 
 an overt act; Bannon v. U. S., 156 U. S. 468, 
 15 Sup. Ct 467, 39 L. Ed. 494. So long as the 
 design to do an unlawful act, or to do a law- 
 ful act by unlawful means, rests in intention 
 only, it is not indictable; but when two or" 
 more agree to carry it into effect, the wry 
 plot is an act in itself and the act of each 
 of the parties, promise against promise, act 
 against act; L. R. 3 H. L. 317, approved in 
 [1901] A. C. 529; [1905] 2 K. B. 746. 
 
 An indictment for a conspiracy to compass 
 or promote a criminal or unlawful purpose 
 must set forth that purpose, fully and clear- 
 ly ; and an indictment for a conspiracy to 
 compass or promote a purpose not in itself 
 criminal or unlawful, by the use of criminal 
 or unlawful means, must set forth the means 
 intended to be used; Com. v. Hunt, 4 Mete. 
 (Mass.) Ill, 38 Am. Dec. 346. 
 
 The participation in a common plan by two 
 or more persons is not in itself a criminal 
 conspiracy; in order to make it such, the 
 motives of those who enter into the combina- 
 tion must be corrupt; People v. Flack. \S< 
 N. Y. 324, 26 X. E. 267, 11 L. R. A. 807; Wood 
 v. State, 47 N. J. L. 461. 1 Atl. 509 ; but if 
 one member of the combination has no cor- 
 rupt motive when entering into it. but aft- 
 erward becomes aware of its Illegality and 
 remains a member, he is criminally liable; 
 U. S. v. Mitchell, l Hughes 439, Fed. Caa 
 
 No. 15,790. So persons who agree in g 1 
 
 faith to do an act innocent in itself do nor 
 become guilty of conspiracy if it is after- 
 wards ascertained that the net is forbidden 
 by statute: People v. Powell. <"? X. Y. S8. 
 
 In the definitions the terms criminal or 
 unlawful are used, because it is manifest 
 that many acts are unlawful which are QOt 
 punishable by indictment or other public 
 prosecution, and yet there is no doubt that 
 a combination by numbers to do them is an 
 unlawful conspiracy and punishable by in- 
 dictment: Stale v. Rowley. 12 Conn. 101; 
 State v. Burnham. 15 X. II. 396; People v. 
 Richards, 1 Mich. 216, 51 Am. Dec 75; II
 
 CONSPIRACY 
 
 622 
 
 CONSPIRACY 
 
 Q. B. 245; Twitchell v. Com., 9 Pa. 211; 
 State v. Shooter, 8 Rich. (S. C.) 72. 
 
 Of this character was a conspiracy to 
 cheat by false pretences without false tok- 
 ens, when a cheat by false pretences only by 
 a single person was not a punishable offence ; 
 11 Q. B. 245. So a combination to destroy 
 the reputation of an individual by verbal 
 calumny of itself is not indictable ; per Shaw, 
 C. J., Com. v. Hunt, 4 Mete. (Mass.) 123, 38 
 Am. Dec. 346. So a conspiracy to induce and 
 persuade a young woman, by false repre- 
 sentations, to leave the protection of her 
 parent's house, with a view to facilitate her 
 prostitution; Mifflin v. Com., 5 W. & S. (Pa.) 
 461, 40 Am. Dec. 527 ; 2 Den. C. Cas. 79 ; and 
 to procure an unmarried girl of seventeen to 
 become a prostitute; 4 F. & F. 160; to pro- 
 cure a woman to be married by a mock cere- 
 mony, whereby she was seduced ; State v. 
 Savoye, 48 la. 562. And see Anderson v. 
 Com., 5 Rand. (Va.) 627, 16 Am. Dec. 776; 
 State v. Murphy, 6 Ala. 765, 41 Am. Dec. 79. 
 So a conspiracy, by false and fraudulent rep- 
 resentations that a horse bought by one of 
 the defendants from the prosecutor was un- 
 sound, to induce him to accept a less sum for 
 the horse than the agreed price; 1 Dearsl. 
 337. A conspiracy by traders to dispose of 
 their goods in contemplation of bankruptcy, 
 with intent to defraud their creditors ; 1 F. 
 & F. 33. 
 
 The obtaining of goods on credit by an in- 
 solvent person without disclosing his insol- 
 vency, and without having any reasonable ex- 
 pectation of being able to pay for such goods 
 in and by means of the fair and ordinary 
 course of his business, is not of itself such 
 an unlawful act as may be the subject of an 
 action for conspiracy ; though it would be 
 otherwise, it seems, in the case of a pur- 
 chase made without any expectation of pay- 
 ment. But the obtaining possession of goods 
 under the pretence of paying cash for them 
 on delivery, the buyer knowing that he has 
 no funds to pay with, and appropriating the 
 goods to his own use in fraud of the seller, 
 is such a fraud or cheat as may be the sub- 
 ject of a charge of conspiracy ; Com. v. East- 
 man, 1 Cush. (Mass.) 189, 48 Am. Dec. 596. 
 
 A combination to go to a theatre to hiss 
 an actor; 2 Campb. 369; 6 Term 628; to 
 indict for the purpose of extorting money ;' 
 4 B. & C. 329 ; to charge a person with being 
 the father of a bastard child ; 1 Salk. 174 ; 
 to coerce journeymen to demand a higher 
 rate of wages; 6 Term 619; People v. Fish- 
 er, 14 Wend. (N. Y.) 9, 28 Am. Dec. 501 ; to 
 charge a person with poisoning another ; F. 
 Moore 816 ; to affect the price of public 
 stocks by false rumors; 3 M. & S. 67; to 
 prevent competition at an auction ; 6 C. & 
 P. 239; to cheat by a fraudulent prospectus 
 oi a projected company and by false ac- 
 counts ; 11 Cox, Cr. Ca. 414 ; by false ac- 
 counts between partners; L. R. 1 C. C. 274; 
 by a. uiock auction ; 11 Cox, Cr. Ca. 404 ; have 
 
 each been held indictable for conspiracy ; as 
 was an association of retail coaldealers in a 
 city to fix prices and prevent a person not a 
 member from obtaining coal from whole- 
 salers; People v. Sheldon, 66 Hun 590, 21 
 N. Y. Supp. 859 ; id., 139 N. Y. 251, 34 N. E. 
 785, 23 L. R. A. 221, 36 Am. St. Rep. 690. 
 So it is a crime for two or more persons t# 
 conspire to cheat and defraud another out 
 of his property, but in such case the indict- 
 ment must set forth the means proposed to 
 be used to accomplish the purpose ; U. S. v. 
 Cruikshank, 92 U. S. 542, 558, 23 L. Ed. 588. 
 In order to render the offence complete, 
 it is not necessary that any act should be 
 done in pursuance of the unlawful agreement 
 entered into between the parties, or that any 
 one should have been defrauded or injured 
 by it. The conspiracy is the gist of the 
 crime ; 9 Co. 55 ; 28 L. T. N. S. 75 ; Com. v. 
 Judd, 2 Mass. 337, 3 Am. Dec. 54; Com. v. 
 Tibbetts, 2 Mass. 538 ; Collins v. Com., 3 S. & 
 R. (Pa.) 220 ; People v. Mather, 4 Wend. (N. 
 Y.) 259, 21 Am. Dec. 122 ; State v. Norton, 23 
 N. J. L. 33; Steele v. Kinkle, 3 Ala. 360; 
 State v. Buchanan, 5 Harr. & J. (Md.) 317, 
 
 9 Am. Dec. 534; State v. Brady, 107 N. C. 
 822, 12 S. E. 325 ; U. S. v. Lancaster, 44 Fed. 
 896, 10 L. R. A. 333. But see Torrey v. Field, 
 
 10 Vt. 353. Where persons enter on an un- 
 lawful purpose, with the intent to aid or en- 
 courage each other in carrying out their de- 
 sign, they are each criminally responsible for 
 everything resulting from such purpose 
 whether specifically contemplated or not; 
 Turner v. State, 97 Ala. 57, 12 South. 54; 
 Boyd v. U. S., 142 U. S. 450, 12 Sup. Ct. 292, 
 35 L. Ed. 1077. 
 
 It is a crime for several persons, out of 
 malice, to agree to induce many others not 
 to enter into contracts with a certain per- 
 son; see [1901] A. C. 531; or for strangers 
 to a contract, and without just excuse, to 
 combine in inducing a breach of it; [1905] 
 A. C. 239; otherwise, in most cases, if they 
 act merely out of self-interest ; see 23 Q. B. 
 D. 618. That may be unlawful if done by 
 several, which is not if done by one ; [1892] 
 A. C. 45, per Lord Bramwell. One may be 
 indicted alone for a conspiracy "with other 
 persons to the jury unknown" ; 94 L. T. 887. 
 
 A criminal conspiracy as boycotting, may 
 arise out of acts which in themselves might 
 be done by one person without preconcert 
 with others. The parties must be numerous ; 
 they must be actuated by ill-will, and their 
 conduct must be calculated to do harm to 
 the person intended; 14 Cox 505. 
 
 Conspiracy may be proved by showing the 
 declarations, acts and conduct of the con- 
 spirators ; State v. Ryan, 47 Or. 338, 82 Pac. 
 703, 1 L. R. A. (N. S.) 862. 
 
 Where it is necessary that two persons 
 concur in the commission of an act to make 
 it a crime, as in case of bigamy, adultery or 
 the like, the agreement is said to form part 
 of the crime and not a conspiracy; Shannon
 
 CONSPIRACY 
 
 623 
 
 CONSPIRACY 
 
 v. Com., 14 Pa. 226; Miles v. State, 58 Ala. 
 390; the combination, which is the essential 
 of conspiracy, is not an aggravation of, but 
 necessary to constitute, the offense, and prob- 
 ably such an agreement not coupled with an 
 overt act would be a mere attempt; 2 BIsh. 
 Crim. L. (8th ed.) § 184, n. 4, cited In 20 
 llarv. L. Rev. 63, where the matter is illus- 
 trated by U. S. v. Guilford, 146 Fed. 298, 
 where the indictment was for conspiracy to 
 violate (he Elkins act in giving and taking 
 rebates and the fact was proved, there being 
 three takers and two givers tics ides two oth- 
 er persons who were go-betweens or agents. 
 It was held not a conspiracy, upon the prin- 
 ciple stated. 
 
 Where three defendants were jointly ar- 
 raigned on a charge of conspiracy, and one 
 of them pleaded guilty and the other two 
 were acquitted on pleas of not guilty, it was 
 held that the judgment against the one who 
 pleaded guilty must be vacated ; [1902] 2 K. 
 
 B. 339 ; this rule it has been said was "tacit- 
 ly assumed by the early English decisions, 
 and has been expressly recognized by the 
 later ones." 1 Stra. 193 ; 5 B. & C. 538 ; 12 
 Q. B. D. 241; 16 Q. B. 832. The same rule 
 is adopted in some states in certain cases in 
 which the offense was necessarily a joint one 
 committed by two persons ; Turpin v. State, 
 4 Blackf. (Ind.) 72; State v. Mainor, 28 N. 
 
 C. 340 ; State v. Rinehart, 106 N. C. 787, 11 
 S. E. 512 ; and repudiated in others ; Alonzo 
 v. State, 15 Tex. App. 378, 49 Am. Rep. 207; 
 State v. Caldwell, 8 Baxt. (Tenn.) 576. It 
 is argued in a note on the subject that the 
 last two cases are more in accord with rea- 
 son ; as one defendant might be a party to 
 a joint act without criminal intent, and in 
 the first English case cited the plea of guilty 
 outweighs the verdict, which means nothing 
 more than not proven; 16 Harv. L. Rev. 142. 
 
 Civil Liability. It is an early saying in 
 the law that a conspiracy of itself gives no 
 cause of action. There must be some overt 
 act by one of the parties to the injury of an- 
 other, Bowen v. Matheson, 14 Allen (Mass.) 
 499 (though there is a dictum, contra, in 
 Patten v. Gurney, 17 Mass. 1S2, 9 Am. Dec. 
 141) ; Hutchins v. Hutchins, 7 Hill (N. Y.) 
 104; Bush v. Sprague, 51 Mich. 41, 16 N. 
 W. 222; Hauser v. Tate, 85 N. C. 81, 39 Am. 
 Rep. 689; 1 Ld. Raym. 374; and an act which 
 is lawful when committed by one will not 
 be rendered unlawful when two or more con- 
 spire to do it; Boston v. Simmons, 150 Mass. 
 461, 23 N. E. 210, 6 L. R. A. 629, 15 Am. St. 
 Rep. 230; Martens v. Reilly, 109 Wis. 464, 84 
 N. W. 840; De Wulf v. Dix, 110 la. 553, 81 
 N. W. 779; Adler v. Fenton, 24 How. (U. S.) 
 407, 16 L. Ed. 696 ; [1898] 1 Q. B. 181 ; but 
 it is held otherwise in Cote v. Murphy, 159 
 Pa. 420, 28 Atl. 190, 23 L. R. A. 135, 39 Am. 
 St Rep. 686 ; and this is supported by a 
 dictum in State v. Huegin, 110 Wis. 189, 85 
 N. W. 1046, 62 L. R. A. 700. 
 
 Civil actions have been sustained for con- 
 
 spiracies to injure In person or reputation, 
 as by maliciously prosecuting; Dxeux v. 
 Doinec, 18 Cal. 83; or by making false 
 charges; Irvine v. Elliott, 206 Pa. IJ 
 Atl. 859; or to injure one in proi>erty or 
 business; Van Horn v. Van Horn, 52 N. J. 
 L. I'M, 20 Atl. 485, 10 I.. I:. A 184; Garst v. 
 Charles, 1*7 Mass. Ill, 72 N. K. B39; Map- 
 Btrick v. Ramge, '•> Neti :::«», 2 X. W. 7 
 Am. Rep. 415; Casey v. Typographical Onion 
 No. 3, -ir> Fed- 135, 12 L. EL A. 193 
 Q. B. 71f,; Martell v. White, IV, Ma 
 69 N. E. 1085, 64 L. R. A. 260, 102 Am. St. 
 Rep. 341 ; as by fraudulent use of legal pro- 
 ceedings ; Verplanck v. Van Buren, 76 N. Y. 
 217. 
 
 An association of ship owners to secure a 
 profitable and exclusive carrying trade, hav- 
 ing agreed to limit the number of ships to be 
 sent by members, and to allow a rebate on 
 freights to all shippers who dealt only with 
 members, is not an actionable conspiracy, as 
 it was done with the lawful object of pro- 
 tecting and increasing trade and profit and 
 no unlawful means had been used; [1892] 
 A. C. 25, where the House of Lords affirmed 
 the judgment in 23 Q. B. D. 598, where the 
 C. A. affirmed the judgment of Lord Cole 
 ridge in 21 Q. B. D. 544. 
 
 Corporations as Conspirators. The law of 
 conspiracy is applicable to corporations, and 
 a combination of corporations for an unlaw- 
 ful purpose, either as an end or means, is a 
 conspiracy in any case where a combination 
 of natural persons would be such, and the 
 converse of the proposition is equally true; 
 Noyes, Intercorp. Rel. § 326. "We enter- 
 tain," said the New York Court of Appeals, 
 "no doubt that an action against a corpora- 
 tion may be maintained to cover da: 
 caused by a conspiracy," and "it is well set- 
 tled . . . that the malice and wicked in- 
 tent needful to sustain such action, may be 
 imputed to such corporations"; Buffalo Lu- 
 bricating Oil Co. v. Standard Oil Co., 106 N. 
 Y. 670. 12 N. E. 826; Transportation Co. v. 
 Standard Oil Co., 50 W. Va. 611, 40 S. 1 
 56 L. R. A. 804, S8 Am. St. Rep. SOS. Both of 
 these were civil actions against the Standard 
 Oil Company, but apparently the same rea- 
 son should apply in making a corporation 
 liable for criminal conspiracy as well as civil, 
 and such was the opinion of .Tu<lu r e Noyes as 
 expressed in the section of bis text book 
 above cited. But this view was authorita- 
 tively declared when an Indictment and con- 
 viction of the same company (its Individual 
 co-defendant being acquitted) were sustained 
 on appeal. The court said: "Corporations 
 can unquestionably commit and lie guilty of 
 a criminal I y denounced by the stat- 
 
 ute, as it so expressly enacts, and they, there- 
 fore, must be counted," and further .that "in- 
 dependent of statute, upon principle and in 
 furtherance of sound public policy, both cor- 
 porations and their officers and agents who 
 engage in the conspiracy must be held to be
 
 CONSPIRACY 
 
 624 
 
 CONSPIRACY 
 
 parties to it"; Standard Oil Co. v. State, 
 117 Tenn. 618, 100 S. W. 705, 10 L. R. A. (N. 
 S.) 1015. Where it is provided, as in the 
 laws of several states, that corporations as 
 well as individuals shall be subject to the 
 provisions of anti-trust laws the construction 
 given to these laws has been that they "did 
 not contemplate the commission of an offense 
 by an impalpable abstraction, which could 
 neither think nor act; but it was intended 
 to bind this corporate entity by the imputed 
 actions of its human agencies"; National 
 Lead Co. v. Paint Store Co., 80 Mo. App. 247; 
 State v. Ins. Co., 152 Mo. 37, 52 S. W. 595, 45 
 L. R. A. 363. 
 
 Conspiracy under Federal Laws. Conspir- 
 acies to prevent witnesses from testifying, to 
 impede the course of justice, to hinder citi- 
 zens from voting, to prevent persons from 
 holding office, to defraud the United States 
 by obtaining approval of false claims, to levy 
 war against the United States, to impede the 
 enforcement of the laws, etc., etc., are made 
 punishable by acts of congress ; U. S. R. S. 
 Index, Conspiracy. 
 
 In the absence of damage, the simple act 
 of conspiracy does not furnish ground for 
 a civil action; Robertson v. Parks, 76 Md. 
 118, 24 Atl. 411. 
 
 After a conspiracy has come to an end, 
 the admissions of one conspirator by way 
 of narrative of past facts are not admis- 
 sible in evidence against the others; Brown 
 v. U. S., 150 U. S. 93, 14 Sup. Ct. 37, 37 L. 
 Ed. 1010; Logan v. U. S., 144 U. S. 263, 12 
 Sup. Ct. 617, 36 L. Ed. 429. 
 
 In a prosecution under U. S. R. S. § 5480, 
 as amended, for a conspiracy to defraud by 
 means of the postoffice, three matters of fact 
 must be charged in the indictment and estab- 
 lished by the evidence: 1. That the persons 
 charged devised a scheme to defraud ; 2. that 
 they intended to effect this scheme by open- 
 ing or intending to open correspondence with 
 some other person through the postoffice es- 
 tablishment or by inciting such other person 
 to open communication with them ; 3. and 
 that in carrying out such scheme such per- 
 son must have either deposited a letter or 
 packet in the postoffice, or taken or received 
 one therefrom; Stokes v. U. S., 157 U. S. 
 187, 15 Sup. Ct. 617, 39 L. Ed. 667. 
 
 Where parties are on trial for conspiracy 
 to stop the mails, contemporary telegrams 
 from different parts of the country, an- 
 nouncing the stoppage of mail trains, are ad- 
 missible in evidence against the defendants 
 if brought home to them, and so, too, are 
 acts and declarations of persons not parties 
 to the record if it appears that they were 
 made in carrying the conspiracy into effect ; 
 Clune v. U. S., 159 U. S. 590, 16 Sup. Ct. 125, 
 40 L. Ed. 269. 
 
 Under R. S. § 5440, the conspiracy to com- 
 mit a crime against the United States is it- 
 self the offence, without reference to whether 
 the crime is consummated, or agreed upon 
 
 by the conspirators in all its details; an in- 
 dictment charging the accused with a con- 
 spiracy to commit the crime of subornation 
 of perjury was held in this case to be suffi- 
 cient although the precise persons to be 
 suborned, and the time and place of such 
 suborning were not particularized; William- 
 son v. U. S., 207 U. S. 425, 28 Sup. Ct. 163, 
 52 L. Ed. 27S. A conspiracy under that stat- 
 ute does not necessarily involve a direct 
 pecuniary loss, but may exist to impair, ob- 
 struct or defeat the lawful function of any 
 department of tne government ; Haas v. Hen- 
 kel, 216 U. S. 4G2, 30 Sup. Ct 249, 54 L. Ed. 
 569, 17 Ann. Cas. 1112. The words "unlaw- 
 fully did conspire to defraud the United 
 States," followed by a statement of the na- 
 ture and purpose of the conspiracy and the 
 acts done to effect its object, is sufficient ; 
 Wright v. U. S., 108 Fed. 805, 48 C. C. A. 37, 
 where the subject is very fully discussed. It 
 is a conspiracy under that act to do an act 
 which Congress has made a crime, if two or 
 more conspire to do it, and Congress may 
 make the punishment for conspiring greater 
 than for committing the crime itself ; U. S. 
 v. Stevenson, 215 U. S. 200, 30 Sup. Ct. 37, 
 54 L. Ed. 157. 
 
 The crime is complete when the conspiracy 
 is shown ; it is not necessary to aver that it 
 succeeded ; U. S. v. Greene, 115 Fed. 343. 
 
 Upon a charge of conspiracy to defraud, a 
 somewhat wide latitude is always allowed in 
 the introduction of circumstantial evidence 
 to prove the intent; U. S. v. Greene, 108 Fed. 
 816. 
 
 The jurisdiction is in the district in which 
 the conspiracy was entered into, although the 
 overt act carrying it out is within another 
 jurisdiction ; Hyde v. Shine, 199 U. S. 62, 25 
 Sup. Ct. 760, 50 L. Ed. 90. 
 
 Where a conspiracy had been formed more 
 than the period of the statute of limitations 
 before the indictment and an overt act is 
 committed within the statutory period, if the 
 existence of the conspiracy as well as the 
 overt act are proved, the prosecution may be 
 sustained; Ware v. U. S., 154 Fed. 577, 84 
 C C. A. 503, 12 L. R. A. (N. S.) 1053, 12 
 Ann. Cas. 233, where the subject is thorough- 
 ly discussed and the cases collected by San- 
 born, C. J., and in a note to the last citation. 
 
 A federal court has no jurisdiction, under 
 the 13th Amendment, of a charge of con- 
 spiracy made and carried out in a state to 
 prevent its citizens of African descent be- 
 cause of their color and race from making or 
 carrying out contracts and agreements of 
 labor ; Hodges v. U. S., 203 U. S. 1, 27 Sup. 
 Ct. 6, 51 L. Ed. 65. 
 
 On a bill alleging a malicious conspiracy 
 to interfere with carrying th*e mails and with 
 interstate commerce, an injunction may be 
 granted to restrain the ordering or causing a 
 strike of the carrier's employes; Wabash R. 
 Co. v. Hannahan, 121 Fed. 563. No civil ac- 
 tion lies for conspiracy, unless there be an
 
 CONSPIRACY 
 
 625 
 
 CONSTABLE 
 
 •vert act that results in damage to the plain- 
 tiff; Nalle v. Oyster, 230 U. S. 165, 33 Sup. 
 Ct. 1043, 57 L. Ed. . 
 
 Some writers consider that there is in this 
 country a tendency to extend the doctrine of 
 criminal conspiracy and utilize it for the in- 
 dictment of persons suspected of crime of 
 which there is difficulty in obtaining suffi- 
 cient proof. This tendency is the subject of 
 extended discussion in an article ou "The 
 Judge-Made Law of Conspiracy," by F. P. 
 Blair, in 37 Am. L. Rev. 33, in which the 
 author contends that there has been a de- 
 parture from the common law upon this sub- 
 ject It contains a valuable enumeration and 
 discussion of the early English cases on the 
 subject of conspiracy. 
 
 As to conspiracies in connection with labor 
 and labor unions, see Boycott; Labor Un- 
 ion; Strike; Combination; Restraint of 
 Trade. 
 
 CONSPIRATORS. Persons guilty of a con- 
 spiracy. 
 
 CONSTABLE. An officer whose duty it is 
 to keep the peace 11. the district which is as- 
 signed to him. See Sheriff. 
 
 The most satisfactory derivation of the term and 
 history of the origin of this office is that which 
 deduces it from the French contestable (Lat. comes- 
 gtabuli), who was an officer second only to the king. 
 He might take charge of the army, wherever It 
 was, if the king were not present, and had the 
 general control of everything relating to military 
 matters, as the marching troops, their encampment, 
 provisioning, etc. Guyot, Rep. Univ. 
 
 The same extensive duties pertained to the con- 
 stable of Scotland. Bell, Diet. 
 
 The duties of this officer in England seem to have 
 been first fully defined by the stat Westm. (13 Edw. 
 I.); and question has been frequently made whether 
 the office existed in England before that time. 1 
 Bla. Com. 356. It seems, however, to be pretty cer- 
 tain that the office in England is of Norman origin, 
 being introduced by William, and that subsequently 
 the duties of the Saxon tithing-men, borsholders, 
 etc., were added to its other functions. See Cowell; 
 Wlllc. Const. ; 1 Bla. Com. 356 ; 1 Poll. & M. 542. 
 
 High constables were first ordained, ac- 
 cording to Blackstone, by the statute of 
 Westminster, though they were known as 
 efficient public officers long before that time. 
 1 Sharsw. Bla. Com. 356. They were ap- 
 pointed for each franchise or hundred by 
 the leet, or, in default of such appointment, 
 by the justices at quarter-sessions. Their 
 first duty is that of keeping the king's peace. 
 In addition, they are to serve warrants, re- 
 turn lists of jurors, and perform various oth- 
 er services enumerated in Coke, 4th Inst. 267; 
 3 Steph. Com. 47. 
 
 The parish constables, under various 
 names, were probably the successors of the 
 old reeves in the townships. In each hun- 
 dred, and in many franchises, there were also 
 high constables, or similar officers with other 
 names, who corresponded with the parish 
 constables in the townships. They continued 
 to be appointed till of late years, but their 
 duties became almost nominal, and were 
 abolished practically in I860. Tarish con- 
 stables continued to be appointed till 1S72. 
 Bouv.— 40 
 
 Up to 1829 they were the only body of men, 
 except the watchmen in cities and boroughs, 
 charged with the duty of apprehending crim- 
 inals and preventing crime. 1 Steph. Cr. L. 
 
 In some cities and towns in the United 
 States there are officers called high con- 
 stables, who are the principal police officers 
 in their jurisdiction. 
 
 Petty constables are inferior officers In 
 every town or parish, subordinate to the high 
 constable. They perform the duties of head- 
 borough, tithing-man, or borsholder, and, in 
 addition, their more modern duties apper- 
 taining to the keeping the peace within their 
 town, village, or tithing. 
 
 In the United States, generally, petty con- 
 st ables only are retained, their duties being 
 generally the same as those of constables In 
 England prior to the 5 & 6 Vict. c. 109, In- 
 cluding a limited judicial power as conserva- 
 tors of the peace, a ministerial power for the 
 service of writs, etc., and some other duties 
 not strictly referable to either of these heads. 
 Their immunities and indemnities are pro- 
 portioned to their powers, and are quite ex- 
 tensive. See 1 Sharsw. Bla. Com. 356, n. ; 
 Arrest. 
 
 CONSTABLE OF A CASTLE. The ward- 
 en or keeper of a castle; the castellain. 
 Stat. Westm. 1, c. 7 (3 Edw. I.); Spehnan, 
 Gloss. 
 
 The constable of Dover Castle was also warden of 
 the Cinque Ports. There was besides a constable of 
 the Tower, as well as other constables of castles of 
 less note. Cowell , Lambard, Const. 
 
 CONSTABLE OF ENGLAND. His office 
 consisted in the care of the common peace 
 of the realm in deeds of arms and matters 
 of war. Lambard, Const. 4. 
 
 He was to regulate all matters of chivalry, 
 tournaments and feats of arms which were 
 performed on horseback. 3 Steph. Com. 47. 
 He held the court of chivalry, besides sit- 
 ting in the curia regis. 4 Bla. Com. 92. 
 
 The office is disused in England, except on 
 coronation-days and other such occasions of 
 state, and was last held by the Duke of 
 Buckingham, under Henry VIII. The title Is 
 Lord High Constable of England. 3 Steph. 
 Com. 47; 1 Bla. Com. 355; 2 Grose. Mil. 
 Antiq. 216. 
 
 See Court of Chivalry; Court of Earl 
 Marshal. 
 
 CONSTABLE OF SCOTLAND. An officer 
 
 who was formerly entitled to command all 
 the king's armies in the absence of the king, 
 and to take cognizance of all crimes commit- 
 ted within four miles of the king's person or 
 of parliament, the privy council, or any gen- 
 eral convention of the estates of the king- 
 dom. The office was hereditary In the fami- 
 ly of Errol, and was abolished by the 20 Geo. 
 III. c. 43. Bell, Diet.: Erskine. Inst. 1. 3. 37. 
 
 CONSTABLE OF THE EXCHEQUER. An 
 officer spoken of in the 51 Hen. III. stat. 5, 
 cited by Cowell.
 
 CONSTABLEWICK 
 
 626 
 
 CONSTITUTIO 
 
 CONSTABLEWICK. The territorial ju- 
 risdiction of a constable. 5 Nev. & M. 261. 
 
 CONSTABULARIUS (Lat.). An officer of 
 horse; an officer having charge of foot or 
 horse ; a naval commander ; an officer having 
 charge of military affairs generally. Spel- 
 man, Gloss. 
 
 The titles were very numerous, all derived, how- 
 ever, from comes-stabuli, and the duties were quite 
 similar in all the countries where the civil law pre- 
 vailed. His powers were second only to those of 
 the king in all matters relating to the armies of the 
 kingdom. 
 
 In England his power was early diminished and 
 restricted to those duties which related to the pres- 
 ervation of the king's peace. The office is now 
 abolished in England, except as a matter of cere- 
 mony, and in France. Guyot, Rep. Univ.; Cowell. 
 
 CONSTAT (Lat. it appears). A certificate 
 by an officer that certain matters therein 
 stated appear of record. See Wilcox v. Ray, 
 2 N. C. 410. 
 
 An exemplification under the great seal 
 of the enrolment of letters patent. Co. Litt. 
 225. 
 
 A certificate which the clerk of the pipe 
 and auditors of the exchequer make at the 
 request of any person who intends to plead 
 or move in the court for the discharge of 
 anything ; and the effect of it is, the certify- 
 ing what constat (appears) upon record 
 touching the matter in question. 
 
 CONSTAT D'HUISSIER. In French Law. 
 
 An affidavit made by a huissier setting forth 
 the appearance, form, quality, color, etc., of 
 any article upon which a suit depends. Arg. 
 Fr. Merc. L. 554; Black, L. Diet. 
 
 CONSTATING INSTRUMENTS. The term 
 is used to signify the documents or collec- 
 tion of documents which fix the constitution 
 or charter of a corporation. Brice, Ultra 
 Vires 34; Ackerman v. Halsey, 37 N. J. Eq. 
 363. 
 
 CONSTITUENT. He who gives authority 
 to another to act for him. The constituent 
 is bound by the acts of his attorney, and 
 the attorney is responsible to his constituent. 
 
 CONSTITUERE. In Old English Law. To 
 
 establish ; to appoint ; to ordain. 
 
 Used in letters of attorney, and translated 
 by constitute. Applied generally, also, to de- 
 note appointment. Reg. Orig. 172 ; Du Cange. 
 
 CONSTITUTED AUTHORITIES. The of- 
 ficers properly appointed under the constitu- 
 tion for the government of the people. Those 
 powers which the constitution of each people 
 has established to govern them, to cause 
 their rights to be respected, and to main- 
 tain those of each of its members. 
 
 They are called constituted, to distinguish 
 them from the constituting authority which 
 has created or organized them, or has dele- 
 gated to an authority, which it has itself 
 created, the right of establishing or regulat- 
 ing their movements. 
 
 CONSTITUTIO. In Civil Law. An estab- 
 
 lishment or settlement Used of controver- 
 sies settled by the parties without a trial. 
 Calvinus, Lex. 
 
 A sum paid according to agreement. Du 
 Cange. 
 
 An ordinance or decree having its force 
 from the will of the emperor. Dig. 1. 4. 1, 
 Coopers notes. 
 
 In Old English Law. An ordinance or stat- 
 ute. A provision of a statute. 
 
 CONSTITUTION. The fundamental law 
 of a state, directing the principles upon 
 which the government is founded, and regu- 
 lating the exercise of the sovereign powers, 
 directing to what bodies or persons those 
 powers shall be confided and the manner of 
 their exercise. 
 
 An established form of government; a 
 system of laws and customs. 
 
 Constitution, in the former law of the European 
 continent, signified as much as decree, — a decree of 
 importance, especially ecclesiastical decrees. The 
 decrees of the Roman emperors referring to the 
 jus circa sacra, contained in the code of Justinian, 
 have been repeatedly collected and called the Con- 
 stitutions. The famous bull Unigenitus was usually 
 called in France the Constitution. Comprehensive 
 laws or decrees have been called constitutions ; 
 thus the Constitutio Ci'iminalis Carolina, which is 
 the penal code decreed by Charles V. for Germany, 
 the Constitutions of Clarendon (g. v.). In political 
 law the word constitution came to be used more and 
 more for the fundamentals of a government, — the 
 laws and usages which give it its characteristic fea- 
 ture. We find, thus, former English writers speak 
 of the constitution of the Turkish empire. These 
 fundamental laws and customs appeared to our 
 race especially important where they limited the 
 power and action of the different branches of gov- 
 ernment ; and it came thus to pass that by consti- 
 tution was meant especially the fundamental law of 
 a state in which the citizen enjoys a high degree of 
 civil liberty ; and, as it is equally necessary to 
 guard against the power of the executive in mon- 
 archies, a period arrived — namely, the first half of 
 the present century— when in Europe, and especially 
 on the continent, the term constitutional government 
 came to be used in contradistinction to absolutism. 
 
 We now mean by the term constitution, in com- 
 mon parlance, the fundamental law of a free coun- 
 try, which characterizes the organism of the coun- 
 try and secures the rights of the citizen and deter- 
 mines his main duties as a freeman. Sometimes, 
 indeed, the word constitution has been used in 
 recent times for what otherwise is generally called 
 an organic law. Napoleon I. styled himself Emperor 
 of the French by the Grace of God and the Consti- 
 tutions of the Empire. 
 
 Constitutions were generally divided into written 
 and non-written constitutions, analogous to leges 
 scriptce and non scriptce. These terms do not in- 
 dicate the distinguishing principle ; Lieber, there- 
 fore, divides political constitutions into accumulated 
 or cumulative constitutions and enacted constitu- 
 tions. The constitution of ancient Rome and that 
 of England belong to the first class. The latter 
 consists of the customs, statutes, common laws, 
 and decisions of fundamental importance. The Re- 
 form act is considered by the English a portion of 
 the constitution as much as the trial by jury or 
 the representative system, which have never been 
 enacted, but correspond to what Cicero calls leges 
 natCB. 
 
 Constitutional law in England appears to 
 include all rules which directly or indirectly 
 affect the distribution or the exercise of the 
 sovereign power in the state ; all rules which 
 define the members of the sovereign power
 
 CONSTITUTION 
 
 627 
 
 CONSTITUTION 
 
 and their relation to each other and the 
 mode in which it, or the members thereof, 
 exercise their authority, the order of succes- 
 sion to the throne, the prerogations of the 
 chief magistrate and the form of the legis- 
 lature and its mode of election, ministers 
 with their responsibilities and sphere of ac- 
 tion, the territory over which the sovereign- 
 ty of the state extends, and who are to be 
 deemed citizens and subjects. Dicey, Const. 
 22. 
 
 Our constitutions are enacted ; that Is to say, 
 they were, on a certain day and by a certain au- 
 thority, enacted as a fundamental law of the body 
 politic. In many cases enacted constitutions can- 
 not be dispensed with, and they have certain ad- 
 vantages which cumulative constitutions must fore- 
 go ; while the latter have some advantages which 
 the former cannot obtain. It has been thought, in 
 many periods, by modern nations, that enacted con- 
 stitutions and statutory law alone are firm guar- 
 antees of rights and liberties. This error has been 
 exposed in Lieber's Civil Liberty. Nor can enacted 
 constitutions dispense with the "grown law" (lex 
 nata). For the meaning of much that an enacted 
 constitution establishes can only be found by the 
 grown law on which it Is founded, just as the Brit- 
 ish Bill of Rights (an enacted portion of the Eng- 
 lish constitution) rests on the common law. 
 
 Enacted constitutions may be either octroyed, 
 that is, granted by the presumed full authority of 
 the grantor, the monarch ; or they may be enacted 
 by a sovereign people prescribing high rules of ac- 
 tion and fundamental laws for its political society, 
 such as ours is ; or they may rest on contracts be- 
 tween contracting parties, — for Instance, between 
 the people and a dynasty, or between several states. 
 We cannot enter here into the interesting Inquiry 
 concerning the points on which all modern constitu- 
 tions agree, and regarding which they differ, — one 
 of the most Instructive inquiries for the publicist 
 and jurist. See Hallam's Constitutional History of 
 England; Hare; Miller; Rawle; Story; Tucker; 
 Watson; Willoughby ; Stimson; Sutherland; Flan- 
 ders; Guthrie; Foster; Boutwell ; Ti^deman (the 
 Unwritten Constitution) ; Taylor ; Thayer, on the 
 Constitution; Farrand, Records of the Federal Con- 
 vention ; Sheppard's Constitutional Text-Book: El- 
 liot's Debates on the Constitution, etc. ; Lieber's ar- 
 ticle (Constitution), In the Encyclopaedia Americana; 
 Cooley, Const. Llm. ; Bryce, Am. Com.; Von Hoist, 
 Hist. U. S. 
 
 For the constitutions of the several states, 
 including those in force and the previous 
 ones, see Charters and Constitutions, pub- 
 lished under authority of Congress in 1S78. 
 
 Thorpe's American Charters, Constitutions, 
 etc., gives the constitutions down to 190S in- 
 clusive. 
 
 Constitution, Self-Executing Provisions. A 
 constitutional provision may be said to be 
 self-executing if it supplies a sufficient rule 
 by means of which the right given may be 
 enjoyed and protected, or the duty imposed 
 may be enforced, and it is not self-executing 
 when it merely indicates principles, without 
 laying down rules by moans of which those 
 principles may be given the force of law. 
 Cooley, Const. Lim. 99 [S4], 4th ed. 101. 
 
 "The question in every case Is whether the 
 language of a constitutional provision is ad- 
 dressed to the courts or the legislature. 
 . . . If the nature and extent of the right 
 conferred and of the liability imposed is 
 fixed by the provision itself, so that they can 
 
 be determined by the examination and con- 
 struction of its own terms, and there 
 is no language used Indicating that the sub- 
 ject is referred to the legislature for action, 
 then the provision should be construed as 
 self-executing, and its language as al<r ; 
 
 to the courts." Willis v. M Minn. 
 
 L50, 50 X. W. 1110, 16 L. It. A. 281, 31 Am. 
 Bt Rep. 028. 
 
 "But it must remain entirely clear that 
 where a state constitution declares In 
 language that the members of corporations 
 shall be individually liable for their debts to 
 a defined extent, it cannot be held that sup- 
 plementary legislation is required to execute 
 this provision, and hence that the l< 
 ture may leave it forever dormant and In- 
 operative merely because the trainers of the 
 constitution did not go on and prescribe the 
 remedy which should be pursued for enforc- 
 ing it." Thomp. Corp. § 3004. 
 
 Morley v. Thayer, 3 Fed. 739; Barnes 
 v. Wheaton, 80 Hun 14, 29 X. Y. Supp. 830; 
 May v. Black, 77 Wis. 104, 45 X. W. 949; 
 Groves v. Slaughter, 15 Pet. (U. S.) 449, 1<> 
 L. Ed. SOO; Pierce v. Com., 104 Pa. 150; 
 Fredericks v. Canal Co., 148 Pa. 317, 23 At). 
 1067. 
 
 But it has been held that a constitutional 
 provision that "dues from corporations shall 
 be secured by individual liability of the 
 stockholders to an additional amount equal 
 to the stock owned by such stockholder, and 
 such other means as shall be provided by 
 law," is not self-executing and is inoperative 
 until supplemented by statute; Marshall v. 
 Sherman, 148 N. Y. 9, 42 X. E. 419, 34 L. EL 
 A. 757, 51 Am. St. Rep. 654. 
 
 A provision of a state constitution i; 
 ing upon stockholders personal liability, to 
 an additional amount equal to their stock, 
 for "dues from corporations." is self-execut- 
 ing; Whitman v. Bank. 176 U. S. 559, 20 
 Sup. Ct. 477, 44 L. Ed. 5S7. 
 
 CONSTITUTION OF THE UNITED 
 STATES OF AMERICA. The supreme law 
 of the United States. 
 
 It was framed by a convention of delegates 
 from all of the original thirteen state- 'ex- 
 cept Rhode Island), which assembled at Phil- 
 adelphia on the 14th of May. 1787. On Sep- 
 tember 17, 1787, by the unanimous consent 
 of the states present, a form of constitution 
 was agreed upon, and on September 28th 
 was submitted to the congress of the confed- 
 eration, with recommendations as to the 
 method of its adoption by the states. In ac- 
 cordance with these recommendations, it was 
 transmitted by the congress to the several 
 state legislatures, in order to be submitted to 
 conventions of delegates chosen in each state 
 by the people thereof. The several states 
 accordingly called conventions, which ratified 
 the constitution upon the following dates: Del- 
 aware, December 7, l~ s 7; Pennsylvania, De- 
 cember 12, 17i>7; New Jersey, December IS,
 
 CONSTITUTION 
 
 628 
 
 CONSTITUTION 
 
 1787 ; Georgia, January 2, 1788 ; Connecticut, 
 January 9, 178S ; Massachusetts, February 6, 
 1788 ; Maryland, April 28, 1788 ; South Caro- 
 lina, May 23, 1788 ; New Hampshire, June 21, 
 1788; Virginia, June 26, 17S8; New York, 
 July 26, 17S8 ; North Carolina, November 21, 
 1789; Rhode Island, May 29, 1790. 
 
 It was said by Mr. Gladstone, who may be 
 considered an impartial critic, that "as the 
 British constitution is the most subtle or- 
 ganism which has proceeded from progressive 
 history, so the American constitution is the 
 most wonderful work ever struck off at a 
 given time by the brain and purpose of man." 
 Fisher, Evolution of the Constitution, 11. 
 In connection with this comment of the 
 great English statesman, it is interesting to 
 quote from an address before the American 
 Bar Association in 1912 by George Suther- 
 land, Senator from Utah (Rep. p. 371), 
 which probably expresses the view of a ma- 
 jority of the thoughtful lawyers and states- 
 men of all parties. Alluding to "a growing 
 sentiment that the constitution has become 
 obsolete and that its provisions stand in the 
 way of reforms which are demanded by the 
 people," he continues: "Many of us do not 
 believe that the constitution has been out- 
 worn, or that it has become a dead wall in 
 the path of progress, to be assaulted and 
 overthrown before we can move on. Its 
 principles are living forces, as vital now as 
 when they were adopted. It is not and nev- 
 er has been a wall, but a wide, free flowing 
 stream within whose ample banks every 
 needed and wholesome reform may be launch- 
 ed and carried." And the address concludes : 
 "To the thoughtful student of law and gov- 
 ernment the great principles of the constitu- 
 tion, as old as the struggle for human liber- 
 ty, are as nearly eternal as anything in this 
 mutable world can be. We do not outgrow 
 them any more than we outgrow the Ten 
 Commandments or the enduring morality of 
 the Sermon on the Mount. . . . The con- 
 stitution did not create the Union, but, by 
 making it 'more perfect,' preserved it from 
 destruction. If the present day teachers of 
 vague and visionary reform would know the 
 fate which will overtake the republic if the 
 constitution, through the shattered faith of 
 the people, shall lose its binding force, they 
 have but to read the history of our country 
 under the Articles of Confederation. If by 
 some unhappy turn of fortune the constitu- 
 tion should be wrecked, those conditions will 
 be repeated, but intensified in the proportion 
 that our population has increased, our terri- 
 tory extended, and our problems have be- 
 come more numerous and intricate. The 
 forty-eight states into which our imperial 
 domain has finally been rounded, filled with 
 patriotic, intelligent, justice-loving people, 
 after all constitute but the body of the Un- 
 ion. Its soul is the constitution." 
 
 Under the terms of the constitution (art. 
 vii.), its ratification by nine states was suffi- 
 
 cient to establish it between the states so 
 ratifying it. Accordingly, when, on July 2, 
 1788, the ratification by the ninth state was 
 read to congress, a committee was appointed 
 to prepare an act for putting the constitu- 
 tion into effect ; and on September 13, 1788 — 
 in accordance with the recommendations 
 made by the convention in reporting the con- 
 stitution — congress appointed days for choos- 
 ing electors, etc., and resolved that the first 
 Wednesday in March then next (March 4, 
 1789) should be the time, and the then seat 
 of congress (New York) the place, for com- 
 mencing government under the new consti- 
 tution. Proceedings were had in accordance 
 with these directions, and on March 4, 1789, 
 congress met, but, owing to the want of a 
 quorum, the house did not organize until 
 April 1st, nor the senate until April 6th. 
 Washington took the oath of office on April 
 30th. The constitution became the law of 
 the land on March 4, 1789. Owings v. Speed, 
 5 Wheat. (U. S.) 420, 5 L. Ed. 124. 
 
 Its adoption abrogated the ordinance of 
 1787, except as continued in force by con- 
 gress ; Pollard v. Hagan, 3 How. (U. S.) 212, 
 11 L. Ed. 565 ; Permoli v. Municipality No. 1 
 of New Orleans, 3 How. (U. S.) 5S9, 11 L. Ed. 
 739 ; Strader v. Graham, 10 How. (U. S.) 82, 
 13 L. Ed. 337 ; South Carolina v. Georgia, 93 
 U. S. 4, 23 L. Ed. 782 ; Wharton v. Wise, 153 
 U. S. 155, 14 Sup. Ct. 783, 38 L. Ed. 669. The 
 constitution is to be construed with respect 
 to the law existing at the time of its adop- 
 tion and as securing to the individual citi- 
 zen the rights inherited by him under Eng- 
 lish law, and not with reference to new guar- 
 antees ; Mattox v. U. S., 156 U. S. 237, 15 
 Sup. Ct. 337, 39 L. Ed. 409 ; it is to be inter- 
 preted according to common law rules; 
 Schick v. U. S., 195 U. S. 65, 24 Sup. Ct. 826, 
 49 L. Ed. 99 ; Kepner v. U. S., 195 U. S. 100, 
 24 Sup. Ct. 797, 49 L. Ed. 114 ; Thompson v. 
 Utah, 170 U. S. 343, 18 Sup. Ct. 620, 42 L. Ed. 
 1061; U. S. v. Wong Kim Ark, 169 U. S. 649, 
 18 Sup. Ct. 456, 42 L. Ed. 890 ; Callan v. Wil- 
 son, 127 U. S. 540, 8 Sup. Ct. 1301, 32 L. Ed. 
 223 ; Smith v. Alabama, 124 U. S. 465, 8 Sup. 
 Ct. 564, 31 L. Ed. 508 ; Boyd v. U. S., 116 U. 
 S. 616, 6 Sup. Ct. 524, 29 L. Ed. 746; In re 
 Wilson, 114 U. S. 417, 5 Sup. Ct. 935, 29 L. 
 Ed. 89; Minor v. Happersett, 21 Wall. (U. 
 S.) 162, 22 L. Ed. 627. Under it are derived 
 all powers exercised by the various depart- 
 ments of the federal government; Dorr v. 
 U. S., 195 U. S. 138, 24 Sup. Ct. 808, 49 L. 
 Ed. 128, 1 Ann. Cas. 697 ; Downes v. Bidwell, 
 182 U. S. 244, 21 Sup. Ct. 770, 45 L. Ed. 10S8 ; 
 and the courts were thereafter bound to take 
 notice of it ; Marbury v. Madison, 1 Cra. (U. 
 S.) 178, 2 L. Ed. 60; and in construing it, 
 they gave special weight to the contempo- 
 raneous construction of it, acquiesced in ; 
 Stuart v. Laird, 1 Cra. (U. S.) 299, 2 L. Ed. 
 115. The "United States of America" was 
 thereby constituted a government with ful)
 
 CONSTITUTION 
 
 629 
 
 CONSTITUTION 
 
 powers necessary for accomplishing the ob- 
 jects of its creation; Respublica v. Sweers, 1 
 Dall. (U. S.) 44, 1 L. Ed. 29; U. S. v. Mau- 
 rice, 2 Brock. 109, Fed. Cas. No. 15,747 ; U. S. 
 v. Bradley, 10 Pet. (U. S.) 363, 9 L. Ed. 448 ; 
 U. S. v. Linn, 15 Pet. (U. S.) 290, 10 L. Ed. 
 742; U. S. v. Tingey, 5 Pet. (U. S.) 115, 8 
 L. Ed. 0G. The government created was one 
 of delegated powers only ; Martin v. Hunter, 
 1 Wheat. (U. S.) 304, 4 L. Ed. 97; McCulloch 
 v. Maryland, 4 Wheat (U. S.) 316, 4 L. Ed. 
 570 ; Gibbons v. Ogden, 9 Wheat. (U. S.) 1, 
 6 L. Ed. 23; Briscoe v. Bank, 11 Pet. (U. S.) 
 257, 9 L. Ed. 709; Gilman v. Philadelphia, 3 
 Wall. (\\ s.i 713, is i.. Ed. 96; U. s. v. Cruik- 
 Bhank, 92 U. S. 542. 2:: L. Ed. 588; U. S. v. 
 Harris. IOC U. S. <ii'!t. 1 Sup. Ct. 601, 27 L. 
 Ed. 290; and though a government of limited 
 powers, it possesses, to every extent, the 
 sovereignty required for the exercise of those 
 powers which do not require to be put in 
 practice by legislative action, but may be 
 exenised at once by virtue of the constitu- 
 tion through the executive departments; In 
 re Debs, I5S U. S. 564, 15 Sup. Ct 900, 39 L. 
 Ed. 1092. 
 
 The constitution creates a government for 
 the United States of America, and not for 
 countries outside of their limits, and it can, 
 therefore, have no operation in another coun- 
 try; In re Ross, 140 U. S. 453, 11 Sup. Ct 
 897, 35 L. Ed. 581. 
 
 The preamble of the constitution declares 
 that the people of the United States, in order 
 to form a more perfect union, establish jus- 
 tice, insure domestic tranquility, provide for 
 the common defence, promote the general wel- 
 fare, and secure the blessings of liberty to 
 themselves and their posterity, do ordain and 
 establish this constitution for the United 
 States of America. 
 
 The "people of the United States" who are 
 declared to have ordained and established 
 the constitution "were the people of the sev- 
 eral states that had before dissolved the po- 
 litical bands which connected them with 
 Great Britain, and assumed a separate and 
 equal station among the powers of the earth 
 (Declaration of Independence) and had by 
 Articles of Confederation and Perpetual Un- 
 ion, in which they took the name of 'The 
 United States of America,' entered into a 
 firm league of friendship with each other 
 for their common defence, the security of 
 their liberties and their mutual and general 
 welfare, binding themselves to assist each 
 other against all force offered to or attack 
 made upon them, or any of them, on account 
 of religion, sovereignty, trade or any pretense 
 whatever" (Articles of Confederation, q. v.); 
 Minor v. Ilappersett, 21 Wall. (U. S.) 162, 105, 
 22 L. Ed. 627. 
 
 The "perfect union" contemplated by the 
 constitution was said by the Supreme Court 
 to be "an indestructible union composed of 
 indestructible states"; Texas v. White, 7 
 Wall. (U. S.) 700, 19 L. Ed. 227, where it was 
 
 also said that the union is indissoluble by 
 the act of any one or more of them ; I 
 v. Cathcart, 1 Bond L Cas. No. 14, 
 
 7."id. The ordinances of secession were de- 
 clared to be absolute nullities ; White v. 
 Cannon, 6 WalL (U. S.) 443, 18 L. Ed 
 but the effort to separate from the ' 
 will not destroy the identity of a stal 
 discharge it from its obligations under the 
 constitution; Keith v. Clark, HT I . S. 454, -1 
 L. Ed. 1071; nor does a condition of civil 
 war take away from congress any of the 
 powers necessary to the maintenance of the 
 Union; Tyler v. Defrees, 11 Wall. (U. S.) 331, 
 20 L. Ed. 161. The federal and stale govern- 
 ments are distinct and independent of 
 other, and while they exercise their po 
 within the same territorial limits, neither 
 can intrude upon the sphere of the other, 
 but in case of conflict between the authori- 
 ties of the two governments, those of the 
 federal government will control until the 
 questions between them are determined by 
 the federal tribunals; Ableman v. Booth, L'l 
 How. (U. S.) 506, 16 L. Ed. 169; Tarble'e 
 Case, 13 Wall. (U. S.) 397, 20 L. Ed. 597. 
 
 In addition to the powers conferred upon 
 the federal government, the power to pro- 
 vide for the common defence authorizes the 
 condemnation by a state of laud for the pur- 
 pose of ceding it to the United States for 
 forts and navy-yards; In re League Island, 
 1 Brewst. (Pa.) 524. 
 
 The first article is divided Into ten sections. 
 By the first the Legislative power is vested in 
 congress. The second regulates the formation 
 of the house of representatives, and declares 
 who shall be electors. The third provides 
 for the organization of the senate, and be- 
 stows on it the power to try impeachmenta 
 The fourth directs the time of meeting of 
 congress, and who may regulate the times, 
 places, and manner of holding elections for 
 senators and representatives. The fifth de- 
 termines the power of the respective houses. 
 The sixth provides for a compensation to 
 members of congress, and for their safety 
 from arrests, and disqualifies them from 
 holding certain offices. The seventh directs 
 the manner of passing hills. The eighth de- 
 fines the powers voted in congress. The 
 ninth contains the following provisions: 1st: 
 That the migration or Importation of certain 
 classes of persons shall not be prohibited pri- 
 or to the year 1S08. 2d. That the writ of 
 habeas corpus shall not be suspended, except 
 in particular cases. 3d. That no bill of at- 
 tainder or er post facto law shall be passed, 
 4th. The manner of levying taxes. 5th. The 
 manner Of drawing money out of the treasury, 
 6th. That no title of nobility shall be grant- 
 ed. 7th. That no officer shall receive a pres- 
 ent from a foreign government The tenth 
 forbids the respective states to exercise cer- 
 tain i lowers there enumerated. 
 
 Sec. l. The power vested in congress un- 
 der the constitution comprised all that por-
 
 CONSTITUTION 
 
 630 
 
 CONSTITUTION 
 
 tion of governmental power and sovereignty 
 which was, at the time of the adoption of 
 the constitution, known and recognized as 
 the "legislative power." As to what this in- 
 cludes and what it excludes, see Legisla- 
 tive Powek. 
 
 Sec. 2. The right to vote for members of 
 congress is derived from the constitution, 
 and this is equally true even if the qualifica- 
 tions for electors of state ofiicers have been 
 adopted by the federal law as those to be 
 required of electors for members of con- 
 gress. Wiley v. Sinkler, 179 U. S. 58, 21 Sup. 
 Ct. 17, 45 L. Ed. 84 ; and a denial to vote 
 at an election of members of congress in- 
 volves a federal question ; Swafford v. Tem- 
 pleton, 185 U. S. 487, 22 Sup. Ct. 783, 46 L. 
 Ed. 1005. 
 
 While congress has no power to establish 
 qualifications for voters in state elections, it 
 may impose a deprivation of citizenship as 
 a penalty, and if the state constitution pre- 
 scribes citizenship of the United States as 
 one of the qualifications for voting, the voter, 
 upon conviction, might thus be deprived of 
 his right. Huber v. Reily, 53 Pa. 112. 
 
 The word "state," in this section, is used 
 in the geographical or territorial sense. Tex- 
 as v. White, 7 Wall. (U. S.) 700, 19 L-. Ed. 227. 
 The qualifications of members of congress 
 being fixed by par. 4, the state cannot enlarge 
 or vary them ; Barney v. McCreery, 1 Cont. 
 Elect. Cas. 167. 
 
 As to what are direct taxes within the 
 meaning of the constitution, see Taxation. 
 The requirement that congress shall ap- 
 portion direct taxes according to population 
 does not apply to the District of Columbia or 
 the territories, and a direct tax may be im- 
 posed in the direct district in proportion to 
 the census ; Loughborough v. Blake, 5 Wheat. 
 (U. S.) 317, 5 L. Ed. 98. 
 
 Sec. 3. Under the 17th amendment, adopt- 
 ed in 1913, the method of choosing senators 
 is changed from an election by the legisla- 
 ture to an election by the people of each 
 state voting at large. 
 
 The senate is a permanent body. Cush. L. 
 & Pr. of Legisl. Ass. 272. The seat of a sen- 
 ator is vacated by his addressing a resigna- 
 tion to the governor of the state without no- 
 tice of its acceptance ; 1 Cont. Elect. Cas. 
 869. A vacancy in the senate, which has oc- 
 curred before a meeting of the Legislature 
 which adjourns without filling the vacancy, 
 cannot be filled by the governor ; 1 Cont. 
 Elect. Cas. 874; nor is it competent for the 
 governor to make a recess appointment to 
 fill a vacancy which shall happen but has 
 not happened ; 1 Cont. Elect. Cas. 871. 
 
 Where a state constitution directed the 
 governor to call a special session of the leg- 
 islature upon the happening of a vacancy in 
 the senate, and he was required by the fed- 
 eral constitution to make a temporary ap- 
 pointment, he considered that the two were 
 in conflict and he exercised his discretion 
 
 to disregard the positive mandate of the 
 state constitution and appoint a senator to 
 fill the vacancy. Knox's Case, 29 Pa. Co. Ct 
 471 (opinion of Governor (formerly Judge) 
 Pennypacker). 
 
 In the trials of impeachment in which the 
 Chief Justice presides, he is a member of 
 the court with a right to vote. 1 Trial of 
 Pres. Johnson 185; Utica Bank v. Wagar, 8 
 Cow. (N. Y.) 398; Rights of Lieutenant-Gov- 
 ernor, 2 Wend. (N. Y.) 213. 
 
 Sec. 4. When the legislature has failed to 
 "prescribe the times, places and manner" of 
 holding an election under this section, the 
 governor may issue a writ of election, al- 
 lowing a reasonable time for notice. 1 Cont. 
 Elect. Cas. 335. Congress may control the 
 election of senators and representatives and 
 change any existing state regulations; In re 
 Siebold, 100 U. S. 371, 25 L. Ed. 717; In 
 re Clarke, 100 U. S. 399, 25 L. Ed. 715 ; and 
 it may pass such laws as are required to 
 secure the free exercise of a right of suf- 
 frage and punish illegal interference with it ; 
 In re Coy, 127 U. S. 731, 8 Sup. Ct. 1263, 32 
 L. Ed. 274; it may also punish violation of 
 duty by election officers; U. S. v. Gale, 109 
 U. S. 65, 3 Sup. Ct. 1, 27 L. Ed. 857 ; it may 
 authorize the appointment of supervisors and 
 deputy marshals ; In re Siebold, 100 U. S. 
 371, 399, 25 L. Ed. 717; and generally may 
 regulate the return and counting of the vote ; 
 In re Coy, 127 U. S. 731, 8 Sup. Ct. 1263, 
 32 L. Ed. 274. 
 
 Sec. 5. The returns from the state au- 
 thorities are only prima facie evidence of 
 election and are not conclusive upon either 
 house of congress ; Spaulding v. Mead, 1 
 Cont. Elect. Cas. 157; Reed v. Cosden, 1 
 Cont. Elect. Cas. 353; and a failure of the 
 state executive to grant a certificate of elec- 
 tion does not affect the right of one who is 
 elected a member of congress ; id. 95. 
 
 A majority of the house is a quorum and 
 a majority of the quorum is sufficient to pass 
 a bill ; U. S. v. Ballin, 144 U. S. 1, 12 Sup. Ct. 
 507, 36 L. Ed. 321 ; and the house may deter- 
 mine any means, not in violation of the con- 
 stitutional restraints or fundamental rights, 
 for ascertaining the presence of a quorum, as 
 by rule authorizing the counting of members 
 who do not vote sufficient to make a quo- 
 rum; U. S. v. Ballin, 144 U. S. 1, 12 Sup. Ct 
 507, 36 L. Ed. 321. 
 
 Each of the two houses possesses an in- 
 herent power to punish for contempt ; Ander- 
 son v. Dunn, 6 Wheat. (U. S.) 204, 5 L. Ed. 
 242; the power cannot be delegated, though 
 a law providing for the indictment of a con- 
 tumacious witness is valid; In re Chapman, 
 166 U. S. 661, 17 Sup. Ct. 677, 41 L. Ed. 1154. 
 The power to punish for contempt requires 
 that the matter in question shall be strictly 
 within the jurisdiction of the body; Kil- 
 bourne v. Thompson, 103 U. S. 168, 26 L. Ed. 
 377, which overrules Anderson v. Dunn, f! 
 Wheat (U. S.) 204, 5 L. Ed. 242, on the point
 
 CONSTITUTION 
 
 G31 
 
 CONSTITUTION 
 
 that the warrant of the speaker for the com- 
 mitment of the witness is not conclusive by 
 way of justification to the serjeant-at-arms 
 in an action for false Imprisonment, The 
 court relied upon some English cases as au- 
 thorities; 4 Moore P. C. 03 ; 11 Moore P. C. 
 347; 4 Moore P. C. (N. S.) 203. 
 
 The power to expel a member has been 
 held to cover an offence not punishable by 
 statute but inconsistent with the duty of a 
 member. Blount's Case, cited 1 Story, Const. 
 § 838; Smith's Case, 1 Hall, L. J. 450. 
 
 The constitutional power granted to each 
 house to keep a journal of its proceedings 
 does not make it evidence that an enrolled 
 bill has passed containing a section not ap- 
 pearing in the enrolled act Gled in the state 
 department; Marshall Field & Co. v. (lark, 
 143 U. S. 049, 12 Sup. Ct. 403, 30 L. Ed. 294. 
 
 Sec. 0. The privilege from arrest extends 
 to all indictable offences; 1 Story, Coust. § 
 805; but it has been held that the privilege 
 from arrest of a member of the legislature 
 applies only to civil process and not to cases 
 of crime or misdemeanor. Com. v. Keeper of 
 Jail, 4 W. N. C. (Pa.) 540. The privilege ex- 
 tends to the service of civil process while in 
 attendance on their public duties ; Geyer v. 
 Irwin. 4 Dall. (U. S.) 107, 1 L. Ed. 702; Nones 
 v. Edsall, 1 Wallace, Jr. 191, Fed. Cas. 10,- 
 290; Respublica v. Duane, 4 Yeates (Pa.) 
 347 ; and the privilege extends to the period 
 of going or returning as well as the time of 
 attendance ; Lewis v. Elmendorf, 2 Johns. 
 Cas. (N. Y.) 222; and it protects a member 
 who loses his seat on a contest until his re- 
 turn home in the -shortest reasonable time; 
 Com. v. Crans, 2 Clark (Pa.) 450. 
 
 The acceptance of a federal office after 
 election to congress operates as a forfeiture 
 of the seat; 1 Cont. Elect. Cas. 122; and 
 this includes a military commission in a vol- 
 unteer regiment; 2 Cont. Elect. Cas. 92; 
 Hammond v. Herrick, 1 Cont. Elect Cas. 295 ; 
 but one who continued to execute the duties of 
 a federal office after election to congress but 
 before taking his seat is not disqualified ; 
 Hammond v. Herrick, 1 Cont. Elect Cas. 2S7, 
 314, 310. 
 
 Sec. 7. An act imposing taxes on the notes 
 of a national bank is not a revenue bill with- 
 in this section; Twin City Nat. Bank v. Ne- 
 beker, 107 U. S. 19G, 17 Sup. Ct. 7GG, 42 L. 
 Ed. 134. 
 
 A bill takes effect from the time of its 
 approval, and the doctrine that there is no 
 fraction of a day does not apply; In re Rich- 
 ardson, 2 Sto. 571, Fed. Cas. No. 11,777; Peo- 
 ple v. Clark, 1 Cal. 400; contra, In re Wel- 
 man, 20 Vt. 653, Fed. Cas. No. 17,407. As 
 to the presentation of bills and their approv- 
 al, see Executive Power. 
 
 Under the last paragraph of this section 
 the senate has decided, July 7, 1856, that 
 two-thirds of a quorum were sufficient to 
 pass a bili »ver a veto. 
 
 A proposed amendment to the constitution 
 need not be presented to the president fur 
 approval; Bollingsworth v. Virginia, 3 Dall. 
 (U. S.) 378, 1 L. Ed. 644; nor joint resolu- 
 tions; Opin. A. <;. 680. 
 
 Sec. 8. This section enu ihe powers 
 
 specifically granted to congress, and with re- 
 spect to them it is held that where they are 
 not exclusive, either expressly or h; 
 Imputation, the states may exercise them 
 concurrently; Sturges v. Crowninshiold, 4 
 Wheat. (U. S.) 193, 4 L. Ed. 529; Houston 
 v. Moore, 5 Wheat. (U. S.) 49, 5 L. Ed. 19. 
 The power of congress to lay taxes is limit- 
 ed, so that it may not reach the means and 
 instrumentalities of the government of a 
 state; Pollock v. Trust Co., 157 U. B. 429, 
 15 Sup. Ct. 073, 39 L. Ed, 759; or the salaries 
 of state officers; Collector v. Day, 11 Wall. 
 (U. S.) 113, 20 L. Ed. 122; nor the revenues, 
 or interest on bonds, of municipal corpora- 
 tions of the states; U. S. v. R. Co., 17 Wall. 
 (U. S.) 322, 21 L. Ed. 597; Pollock v. Trust 
 Co., 157 U. S. 429. 15 Sup. Ct. 073, 39 L. Ed. 
 759; but it may lay a tax upon an inherit- 
 ance or property by states or from munici- 
 palities; Snyder v. Bettman, 190 U. S. 249, 
 23 Sup. Ct 803, 47 L. Ed. 1035. 
 
 The debts of the United States, of which 
 congress is authorized to provide for the 
 payment, include those of an equitable char- 
 acter which would not be recoverable in a 
 court of law; as, for example, the payment 
 of sugar bounties to producers who were 
 prevented by the repeal of the act from ob- 
 taining them in due time; U. S. v. Realty 
 Co., 103 U. S. 427, 10 Sup. Ct. 1120, 41 L. 
 Ed. 215. The requirement that taxes shall 
 be uniform throughout the United States is 
 a geographical expression and means simply 
 to operate generally throughout the country; 
 Knowlton v. Moore, 178 U. S. 41, 20 Sup. 
 Ct 747, 44 L. Ed. 909; High v. Coyne, 17S 
 U. S. Ill, 20 Sup. Ct. 747, 44 L. Ed. 997; 
 but this does not include foreign territory 
 acquired by conquest or treaty and not in- 
 corporate! into the United States; Downes 
 v. Bi :wt?L 182 U. S. 244, 21 Sup. Ct. 770, 
 45 L. Ed. 1088. 
 
 As to the scope of the taxing power of 
 congress In this section, see Taxation: Im- 
 post; Excise; as to the power to regulate 
 commerce, see Commerce; Restraint of 
 Trade; Interstate Commkbcb Commie 
 as to naturalization and bankruptcy, 
 those titles : as to coining money, see Cor 
 as to counterfeiting, post-offices and post- 
 roads, see Forgery; Post-Ofkice; Postal 
 Service ; as to the power to promote science 
 and useful arts, see Copybight; P.\ 
 Tiivi>i:-M.\r.K ; as to the power to establish 
 inferior courts, see United States Cocrts ; 
 as to the power to define and punish piracy 
 and felonies on the high seas, see Admiral- 
 ty; Piracy; High Seas; as to the power to 
 declare war and support armies and a navy
 
 CONSTITUTION 
 
 632 
 
 CONSTITUTION 
 
 and to provide for the government regula- 
 tion of military forces, see Wab; Letter of 
 Makque and Reprisal ; Military Law ; 
 Court-Martial ; Militia ; as to the power of 
 legislation for the seat of government, see 
 District of Columbia ; as to the line of dis- 
 tinction between the authority of the states 
 over their internal affairs and that of con- 
 gress in regulation of commerce, see Police 
 Power ; Health ; Quarantine ; Inspection ; 
 see also Navigable Waters ; Bridge ; Pilot ; 
 Harbors ; Ferries. 
 
 Sec. 9. The first paragraph of this section 
 is no longer in force, being superseded by the 
 13th and 14th Amendments. While in force 
 it was held to apply to the African race and 
 the word "migration" related to free per- 
 sons and "importation" to slaves; New York 
 v. Compagnie Generale Transatlantique, 107 
 U. S. 59, 2 Sup. Ct. 87, 27 L. Ed. 383. 
 
 As to the prohibition of the suspension of 
 the writ of habeas corpus, see that title ; 
 as to the three following paragraphs, see 
 Bill of Attainder ; Ex Post Facto ; Taxa- 
 tion. Under the last paragraph of this sec- 
 tion it was determined that a United States 
 marshal could not hold the office of commer- 
 cial agent of France ; 6 Opin. A. G. 409. 
 
 Sec. 10. The prohibition of the first para- 
 graph of this section operated to make the 
 Confederate government an illegal organiza- 
 tion; Williams v. Bruffy, 96 U. S. 176, 24 
 L. Ed. 716; and during the time of the ex- 
 istence of the so-called Confederacy, the 
 states composing it could not pass any law 
 impairing the obligation of a contract; U. 
 S. v. Kimbal, 13 Wall. (U. S.) 636, 20 L. Ed. 
 503 ; Ford v. Surget, 97 U. S. 594, 24 L. Ed. 
 1018. 
 
 The prohibitions against the states are ab- 
 solute. They cannot, directly or indirectly, 
 coin money; Briscoe v. Bank, 11 Pet. (U. S.) 
 257, 9 L. Ed. 709 ; emit bills of credit ; Craig 
 v. Missouri, 4 Pet. (U. S.) 410, 7 L. Ed. 903 ; 
 which implies a pledge of the public faith 
 and the issue of paper intended to circulate 
 as money; Briscoe v. Bank, 11 Pet. (U. S.) 
 257, 9 L. Ed. 709; pass a bill of attainder, 
 which includes bills of pains and penalties ',< 
 Cummings v. Missouri, 4 Wall. (U. S.) 277, 
 18 L. Ed. 356; Ex parte Garland, 4 Wall. 
 (U. S.) 333, 18 L. Ed. 366; Drehman v. Stifle, 
 8 Wall. (U. S.) 595, 19 L. Ed. 508. As to 
 the other prohibitions, see Ex Post Facto; 
 Impairing the Obligation of Contracts ; 
 Nobility. The prohibition against the entry 
 by a state into an agreement or compact 
 with another state or foreign power implies 
 the broadest use of words and forbids any 
 negotiations or intercourse between a state 
 and a foreign nation ; Bank of Augusta v. 
 Earle, 14 Pet. (U. S.) 540, 10 L. Ed. 274. 
 The states may, with the consent of congress, 
 enter into a compact fixing tbeir boundaries ; 
 Poole v. Fleeger, 11 Pet. (U. S.) 185, 9 L. Ed. 
 680 ; Virginia v. West Virginia, 11 Wall. (U. S.) 
 39, 20 L. Ed. 67 ; and the consent of congress 
 
 may be implied from its legislation and pro- 
 ceedings as well as by express action ; Green 
 v. Biddle, 8 Wheat. (U. S.) 1| 5 L Ed. 547; 
 Virginia v. West Virginia, 11 Wall. (U. S.) 
 39, 20 L Ed. 67; Virginia v. Tennessee, 148 
 U. S. 503, 13 Sup. Ct 728, 37 L. Ed. 537. 
 
 There is nothing in the constitution of the 
 United States prohibiting a state from 
 changing the common law by permitting the 
 recovery of damages for injury sustained 
 for which at common law there could be no 
 recovery; Ivey V. Telegraph Co., 165 Fed. 
 371. 
 
 The second article is divided into four sec- 
 tions. The first vests the executive power in 
 the president of the United States, and (as 
 amended) provides for his election and that 
 of the vice-president. The second section 
 confers various powers on the president. 
 The third defines his duties. The fourth pro- 
 vides for the impeachment of the president, 
 vice-president, and all civil officers of the 
 United States. 
 
 This article deals with the executive pow- 
 er vested in the president, which compre- 
 hends by tbat term all the powers belonging 
 to the executive department, and of govern- 
 ments, where the three-fold division of gov- 
 ernmental powers is recognized. As to what 
 is comprehended in this term, see Executive 
 Power. 
 
 Sec. 1. The section under consideration 
 provides in the first place for the election of 
 the president by electors appointed in such 
 manner as. the state legislature may direct, 
 and for this purpose their power is exclu- 
 sive, and a law providing for their election 
 by districts is valid; McPherson v. Blacker, 
 146 U. S. 1, 13 Sup. Ct. 3, 36 L. Ed. 869, af- 
 firming McPherson v. Secretary of State, 92 
 Mich. 377, 52 N. W. 469, 16 L. R, A. 475, 31 
 Am. St. Rep. 587. The jurisdiction of an in- 
 dictment for illegal voting for electors, even 
 where the sentence included punishment for 
 illegal voting for a member of congress, is in 
 the state courts ; In re Green, 134 U. S. 377, 
 10 Sup. Ct. 5S6, 33 L. Ed. 951. 
 
 The third clause of this section, providing 
 for the manner of ascertaining the result 
 of the voting by the electors, and of choosing 
 a president and vice-president in case of fail- 
 ure to elect, is of no further force having 
 been supplied by the 12th Amendment. 
 
 The time of cboosing electors has been fix- 
 ed by congress as the Tuesday next after the 
 first Monday in November ; 1 U. S. R. S. § 
 131; and the time for electors to meet and 
 vote in their respective states is the second 
 Monday in January; Act Feb. 3, 1887, 1 
 Comp. St. 67, which invalidates a state law 
 making provision for the meeting of electors, 
 so far as the date is concerned, but not oth- 
 erwise. The same act provides (section? 
 4-7) the metbod of ascertaining the result of 
 the election by congress. 
 
 As to who are natural-born citizens and 
 citizens of the United States with respect to
 
 CONSTITUTION 
 
 633 
 
 CONSTITUTION 
 
 the qualifications of the president, see Citi- 
 zen. As to the succession to the presidency 
 in case of a vacancy in the office of both 
 president and vice-president, see Cabinet. 
 
 Sec. 2. Under the power vested in the pres- 
 ident as commander-in-chief of the army and 
 navy, he has authority without legislation to 
 put in force all legitimate acts of belliger- 
 ency, among which are included the power to 
 remove an officer of the army if the case is 
 not provided for by law; Keyes v. U. S., 109 
 U. S. 336, 3 Sup. Ct. 202, 27 L. Ed. 954 ; and 
 to institute a blockade ; U. S. v. The Tropic 
 Wind, Fed. Cas. No. 16,541a; U. S. v. The 
 F. W. Johnson, Fed. Cas. No. 15,179; to con- 
 vene a general court-martial; Swaim v. U. 
 S., 165 U. S. 553, 17 Sup. Ct. 4 -18. 41 L. Ed. 
 823; levy contributions on the enemy ; Cross 
 v. Harrison, 1G How. (U. S.) 164, 190, 14 L. 
 Ed. 889; Fleming v. Page, 9 How. (U. S.) 
 603, 13 L. Ed. 270; authorize the military 
 or naval commanders of conquered territory 
 to provide for civil and military government, 
 and to impose duties on imports and tonnage 
 for its support; Dooley v. U. S., 182 U. S. 
 222, 21 Sup. Ct. 762, 45 L. Ed. 1074; Cross v. 
 Harrison, 16 How. (U. S.) 164, 14 L. Ed. 
 8S9; or courts for the administration of 
 civil and criminal law in such territory may 
 be established by the president, or a com- 
 manding officer therein; Mechanics' & Trad- 
 ers' Bank v. Bank, 22 Wall. (U. S.) 277, 22 
 L. Ed. 871; The Grapeshot, 9 Wall. (U. S.) 
 129, 19 L. Ed. 651 ; Leitensdorfer v. Webb, 20 
 How. (U. S.) 176, 15 L. Ed. 891. The pres- 
 ident becomes commander-in-chief of the 
 militia only when it is called into the service 
 of the United States; Johnson v. Sayre, 158 
 U. S. 109, 15 Sup. Ct. 773, 39 L. Ed. 914; but 
 his authority as to when it is necessary so to 
 call it is decisive ; Martin v. Mott, 12 Wheat. 
 (U. S.) 19, 6 L. Ed. 537; and it may be made 
 a criminal offence by state statute for the 
 militia to refuse to obey his call ; Houston v. 
 Moore, 5 Wheat. (U. S.) 1, 5 L. Ed. 19. The 
 president may place the militia under com- 
 mand of officers of the United States army 
 to whom he may delegate his powers ; 2 
 Opin. A. G. 711 ; but he cannot delegate his 
 judicial duty to review the findings of a 
 court-martial; Runkle v. U. S., 122 U. S. 543, 
 7 Sup. Ct 1141, 30 L. Ed. 1107. 
 
 The pardoning power conferred upon the 
 president does not destroy the power of con- 
 gress to pass an act of general amnesty ; 
 Brown v. Walker, 161 U. S. 591, 16 Sup. Ct. 
 644, 40 L. Ed. 819. Pardon includes amnesty, 
 and there is no distinction between them un- 
 der the constitution; Knote v. U. S., 95 U. S. 
 149, 24 L. Ed. 442; U. S. v. Klein, 13 Wall. 
 (U. S.) 128, 20 L. Ed. 519. A pardon is a 
 private official act, and must be conveyed to 
 and accepted by the criminal, and must be 
 brought judicially to the attention of the 
 court to be vioticed ; U. S. v. Wilson, 7 Pet. 
 (U. S.) 150, 8 L. Ed. 640; unless made by 
 
 public proclamation, when it has the force of 
 law; Jenkins v. Collard, 145 U. S. 546, 12 
 Sup. Ct. SG8, 36 L. Ed. S12. A pardon may 
 be granted before trial ; 6 Opin. A. G. 20; or 
 after the expiration of imprisonment when 
 that is part of the sentei Case, 
 
 Fed. Cas. No. 33,380, 1 Phila. 302; 9 I 
 A. G. 478. He may remit | for- 
 
 feitures and fines; Osborn v. U. S., 91 F. S. 
 474, 23 L. Ed. 388; even after the death of 
 the offender; Caldwell's Case, 11 Opin. A. G. 
 35 ; or fines imposed for contempt of court ; 
 In re Mullee, 7 Blatchf. 23, Fed. Cas. No. 
 9,911. 
 
 As to the force and effect of pardons gen- 
 erally, see Pardon; Amnesty. As to the 
 treaty power, see Tueaty. 
 
 Nomination and appointment to office are 
 voluntary acts distinct from the issuing of 
 the commission ; Marbury v. Madison, 1 Cra. 
 (U. S.) 137, 155, 2 L. Ed. 60; and the presi- 
 dent may, after confirmation, withhold a 
 commission, and until it has been delivered 
 the appointment is not consummated; Case 
 of Lieutenant Cox, 4 Opin. A. G. 21S ; but it 
 was held in Marbury v. Madison, 1 Cra. (I'. 
 S.) 137, 2 L. Ed. <;<', that formal delivery of 
 a commission was not necessary to complete 
 the appointment, which was done by affix- 
 ing the seal to the commission ; this having 
 been done, the death of the president before 
 the delivery will not affect its validity; U. 
 S. v. Le Baron, 19 How. 73, 15 L. Ed. 525. 
 See Officer; Executive Power; which lat- 
 ter title see also as to the power of the 
 president to make recess appointments. 
 
 Inferior officers, such as are mentioned in 
 the second paragraph of the section, include 
 clerks of courts; In re Hennen, 13 Pet. (U. 
 S.) 230, 10 L. Ed. 138; U. S. v. Avery, 1 
 Deady, 204, Fed. Cas. No. 14.4S1 ; extradition 
 commissioners; Rice v. Ames, 180 U. S. 371, 
 21 Sup. Ct. 406, 45 L. Ed. 577; viee-consuls ; 
 U. S. v. Eaton, 169 U. S. 331, 18 Sup. Ct. 374, 
 42 L. Ed. 767 ; inspectors of immigration ; 
 Nishimura Ekiu v. U. S., 142 U. S. 651, 12 
 Sup. Ct. 336, 35 L. Ed. 1146. 
 
 Sec. 3. The authority given to the presi- 
 dent to communicate his views and recom- 
 mendations to congress, and his power to ad- 
 journ them in case of disagreement between 
 the two houses, does not seem to have been 
 the occasion of any judicial or official con- 
 struction. It is interesting to note that Pres- 
 ident Wilson has revived the earlier custom 
 of communicating his views to both houses in 
 person. The power to convene the two 
 houses in extraordinary sessions has been 
 frequently exercised, and there is not in the 
 federal constitution, as there is in those of 
 many states, any power given to the presi- 
 dent to limit the subjects of consideration to 
 that for which he calls the extraordinary 
 sessions. As to the power to receive ambas- 
 sadors and other public ministers, and the 
 inferences which have been drawn from it,
 
 CONSTITUTION 
 
 634 
 
 CONSTITUTION 
 
 and also the direction to take care that the 
 laws be faithfully executed, see Executive 
 Power. 
 
 It was determined in Blount's Case, p. 22, 
 102, that a member of either house of con- 
 gress is not a civil officer subject to impeach- 
 ment, nor is a territorial judge, his office be- 
 ing created by legislation only; 3 Opin. A. 
 G. 409. As to the method of proceeding and 
 impeachment, generally, see that title. The 
 constitutional power of impeachment does 
 not interfere with the president's power of 
 removal for cause which he deems adequate ; 
 Shurtleff v. U. S., 189 U. S. 311, 23 Sup. Ct. 
 535, 47 L. Ed. S28. See Executive Power. 
 
 The third article contains three sections. 
 The first vests the judicial power in sundry 
 courts, provides for the tenure of office by 
 the judges, and for their compensation. The 
 second provides for the extent of the judicial 
 power, vests in the supreme court original 
 jurisdiction in certain cases, and directs the 
 manner of trying crimes. The third defines 
 treason, and vests in congress the power to 
 declare its punishment. 
 
 Sec. 1. This article deals with the judicial 
 power, as to which, generally, see that title. 
 As to the power of the courts to declare an 
 act of congress or of a state legislature un- 
 constitutional, see Constitutional. The au- 
 thority of the federal courts over state leg- 
 islation is confined to cases in which it is 
 repugnant to the federal constitution, and 
 they have no power to declare it void under 
 the state constitution; Jackson v. Lamphire, 
 3 Pet. (U. S.) 280, 7 L. Ed. 679. 
 
 The federal courts are not to be treated 
 by the state courts as belonging to another 
 sovereign ; Com. v. R. Co., 58 Pa. 43. 
 
 It was established by an early case that 
 the power of congress to create inferior tri- 
 bunals is unlimited except by the sense of that 
 body as to what is necessary and proper ; 
 Stuart v. Laird, 1 Cra. (U. S.) 299, 2 L. Ed. 
 115; and in tEe same case it was answered 
 to an objection that the judges of the su- 
 preme court had no right to sit as circuit 
 judges, that the practice and acquiescence 
 in the custom "affords an irresistible answer 
 and has indeed fixed the construction. It is 
 a contemporary interpretation of the most 
 forcible nature . . . too strong and ob- 
 stinate to be shaken or controlled ; . . . 
 the question is at rest and ought not now to 
 be disturbed." 
 
 It has also been determined in many cases 
 that the territorial courts are not courts of 
 the United States; Good v. Martin, 95 U. S. 
 90, 24 L. Ed. 341; Reynolds v. U. S., 98 U. S. 
 145, 25 L. Ed. 244. As to the territorial 
 courts, generally, see McAllister v. U. S., 141 
 U. S. 174, 11 Sup. Ct. 949, 35 L. Ed. 693. 
 
 The courts which congress is authorized by 
 this section to establish do not include a 
 court-martial, or a court for the administra- 
 tion of civil and criminal jurisdiction in 
 conquered territory, which may be created 
 
 by the president ; supra. See Couet-Mab- 
 
 TIAL. 
 
 The authority of congress to create new 
 courts carries with it ex necessitate the pow- 
 er to define their jurisdiction ; Sheldon v. 
 Sill, 8 How. (U. S.) 449, 12 L. Ed. 1147. 
 
 The provision that the compensation of a 
 judge shall not be diminished prevents a tax 
 upon his salary; Com. v. Mann, 5 W. & S. 
 (Pa.) 415. 
 
 Sec. 2. The constitutional jurisdiction of 
 the federal courts cannot be affected by state 
 legislation; Watson v. Tarpley, 18 How. (U. 
 S.) 517, 15 L. Ed. 509; Lincoln County v. 
 Luning, 133 U. S. 529, 10 Sup. Ct. 363, 33 L. 
 Ed. 766; as by attempting to regulate execu- 
 tions ; Bank of U. S. v. Halstead, 10 Wheat. 
 (U. S.) 51, 6 L. Ed. 264; or by the interfer- 
 ence of state courts or officers with persons 
 or property within the jurisdiction of the 
 federal court; Beers v. Haughton, 9 Pet. (U. 
 S.) 329, 9 L. Ed. 145; Ableman v. Booth, 21 
 How. (U. S.) 506, 16 L. Ed. 169; or by a 
 limitation of remedies within the state; Suy- 
 dam v. Broadnax, 14 Pet. (U. S.) 67, 10 L. 
 Ed. 357; Lincoln County v. Luning, 133 U. 
 S. 029, 10 Sup. Ct. 363, 33 L. Ed. 766; or by 
 removing a case from one state court to an- 
 other; Hyde v. Stone, 20 How. (U. S.) 170, 
 15 L. Ed. 874. As to the attempts to limit to 
 state courts the litigation by or against for- 
 eign corporations, see Foreign Corporation. 
 The grant of judicial power includes both 
 criminal and civil cases ; Tennessee v. Davis, 
 100 U. S. 257, 25 L. Ed. 648 ; but there is no 
 common law jurisdiction in the federal 
 courts in criminal cases; United States v. 
 Hudson, 7 Cra. (U. S.) 32, 3 L. Ed. 259; 
 though their implied powers include all that 
 is necessary to enforce their jurisdiction ; 
 United States v. Hudson, 7 Cra. (U. S.) 32, 
 3 L. Ed. 259. 
 
 Cases at law under this section include all 
 those usually embraced under that term, in- 
 cluding for example, proceedings for the con- 
 demnation of land under the power of emi- 
 nent domain; Cbappell v. U. S., 160 U. S. 
 499, 16 Sup. Ct. 397, 40 L. Ed. 510 ; Kohl v. 
 U. S., 91 U. S. 367, 23 L. Ed. 449 ; and those 
 in equity are those which are included with- 
 in the English system of equity jurispru- 
 dence, and include all cases of which the 
 English court of chancery would have juris- 
 diction; Boyle v. Zacharie, 6 Pet. (U. S.) 
 648, 8 L. Ed? 532 ; Mississippi Mills v. Cohn, 
 150 U. S. 202, 14 Sup. Ct. 75, 37 L. Ed. 1052 ; 
 and the system of equity administered by the 
 federal courts is determined by the practice 
 in England, subject to changes by legislation 
 or by rule of court; Boyle v. Zacharie, 6 Pet. 
 (U. S.) 648, 8 L. Ed. 532; but it cannot be 
 affected by state legislation ; Dravo v. Fabel, 
 132 U. S. 487, 10 Sup. Ct. 170, 33 L. Ed. 421; 
 Hollins v. Iron Co., 150 U. S. 371, 14 Sup. Ct 
 127, 37 L. Ed. 1113. 
 
 A case "arising" under the constitution, 
 laws or treaties of the United States means
 
 CONSTITUTION 
 
 635 
 
 CONSTITUTION 
 
 one which required for its decision a con- 
 struction of either; Cohens v. Virginia, 6 
 Wheat. (U. S.) 264, 5 L. Ed. 257; Martin v. 
 Hunter, 1 Wheat. (U. S.) 304, 4 L. Ed. 97; 
 or which involves a right created or pro- 
 tected by them; Patton v. Brady, 184 U. S. 
 608, 22 Sup. Ct. 493, -10 L. Ed- 713; New Or- 
 leans v. De Annas, 9 Pet (U. S.) 224, 9 L. 
 Ed. 109. See as to this point, J ur.is diction; 
 Federal Question; Dotted States Coubts. 
 See those titles, generally, as to the subjects 
 of the judicial power of the United States aa 
 enumerated in this section. 
 
 The clause relating to jury trials remains 
 unaffected by the 6th Amendment; Callan v. 
 Wilson, 127 U. S. 540, 8 Sup. Ct. 1301, 32 L. 
 Ed. 223; see Jury. As to the admiralty ju- 
 risdiction conferred by this section, see Ad- 
 miralty ; Maritime Law ; and other cognate 
 titles. 
 
 The power of congress to designate the 
 place of trial for offences not committed 
 within any state includes the power to desig- 
 nate a place of trial for an offence previously 
 committed; Cook v. U. S., 138 U. S. 157, 11 
 Sup. Ct. 208, 34 L. Ed. 906. 
 
 Sec. 3. As to treason, see that title. The 
 provision as to proof applies to the trial and 
 not the preliminary hearing; Charge to 
 Grand Jury, Treason, 2 Wall. Jr. 134, Fed. 
 Cas. No. 18,276; 1 Burr's Trial 196. 
 
 The prohibition contained in the last para- 
 graph of this section was set up to defeat a 
 forfeiture of real property employed in vio- 
 lation of the revenue laws, as making the 
 act under which the remedy was applied in 
 practical effect a bill of attainder within this 
 provision, and it was said by Hall, J., that 
 the clauses in this section "have respect to 
 high crimes, and punishing them, restraining 
 rigor and guarding against arbitrarily enact- 
 ing guilt. The case before the court is a 
 civil suit in rem, against the thing, to ratify 
 the seizure of it, and the provision of the act 
 of congress under which it is alleged to be 
 forfeited, and therefore was seized, is a regu- 
 lation of civil policy, framed to secure to the 
 Dnited States fair payment of taxes imposed 
 for the support of the government, a regula- 
 tion of civil policy to accomplish a purpose 
 vital to government ; for without revenue the 
 government cannot exist; and what meas- 
 ures may be requisite to enforce the collec- 
 tion of a tax, it is for congress in the exer- 
 cise of its legislative power to determine." 
 Accordingly, the objection was overruled, 
 and the information sustained, and a decree 
 of condemnation was made; U. S. v. Distil- 
 lery, 2 Abb. U. S. 192, Fed. Cas. No. 14,965. 
 
 The fourth article is composed of four 
 sections. The first provides that state rec- 
 ords, etc., shall have full faith and credit in 
 other states. The second secures to citizens 
 of each state all privileges and immunities 
 of citizens in the several states, and the de- 
 livery of fugitives from justice or from labor. 
 The third provides for the admission of new 
 
 states, and the government of the territories. 
 The fourth guarantees to every state in the 
 Union a republican furm of government, and 
 protection from Invasion or domestic vio- 
 lence. 
 
 Sec. 1. As to the full faith and credit to 
 be given in one state to the records and judi- 
 cial proceedings of another under this sec- 
 tion, see FOREIGN JuDGMl NT. 
 
 Sec. 2. As to the privileges and immunities 
 to which citizens of each state are entitled 
 in other states, see Privileges and Immuni- 
 ties. As to the delivery of fugitives from 
 justice by one state to another, see Fugitive 
 pbom Justice, sub-tit. Interstate Rendition. 
 The third paragraph of this section relates 
 mainly to slavery and is necessarily obs 
 but the expression "no person held to service 
 or lalior" includes apprentices; Boalei v. 
 Cummines, 5 Clark (Pa.) 246; id., Fed. Cas. 
 No. 1,584. 
 
 Sec. 3. It was held in Luther v. Borden, 7 
 How. 1, 12 L. Ed. 581, that the power of 
 recognizing state governments is vested in 
 congress. The territories cannot without 
 the consent of congress take legislative ac- 
 tion for the formation of constitutions and 
 state governments, but the people of a terri- 
 tory may meet in primary assemblies or con- 
 ventions for the purpose of making applica- 
 tion to congress for admission into the 
 Union as a state; 2 Opin. A. G. 726. The 
 admission of a new state gives it the same 
 status as the other states; Bolln v. Nebras- 
 ka, 176 U. S. 83, 20 Sup. Ct. 287, 44 !.. Ed. 
 382; Huse v. Glover, 119 U. S. 543. 7 Sup. 
 Ct. 313, 30 L. Ed. 4S7; and its sovereignty 
 and equality cannot be restrained by con- 
 gressional action; Withers v . Buckley, 20 
 How. (U. S.) 84, 15 L. Ed. 816; and imme- 
 diately upon its admission, the federal laws 
 extend over and into it: Calkin v. Cocke, 14 
 How. (U. S.) 229, 14 L. Ed. 398 
 
 The consent of the legislature to the di- 
 vision of a state requires that it be one rep- 
 resenting and governing the whole stab 
 not merely a part of it; 10 Opin. A. G. 426. 
 The power of congress over public lands is 
 unlimited: U. S. v. Gratiot, 14 Pet. 526, 10 
 L. Ed. 5 73 ; and that power is not a; 
 by the admission of a territory as a state; 
 Cornfield v. U. S., 167 U. S. 518, 17 Sup. Ct. 
 864, 12 L. Ed. 260. See Lands, Pi 
 
 Sec. 4. The guarantee of a republican form 
 of government to every "state" means to its 
 people and not to its government: Texas v. 
 White, 7 Wall. (U. S.) too. 19 L. Ed 
 Where it was also held that tins clan 
 sufficient authority for the reconstruction, 
 after the Civil War. of the governments of 
 the states included within the Confederacy. 
 No precise definition of what constitutes 
 a republican government under this clause 
 has been judicially declared; it does not 
 involve the recognition of woman suffrage: 
 Minor v. Happersett, 21 Wall. fD. S.) 162, 
 22 L. Ed. 627; nor is it violated by a pro-
 
 CONSTITUTION 
 
 636 
 
 CONSTITUTION 
 
 vision for minority representation in a con- 
 stitutional convention ; Woods' Appeal, 75 
 Pa. 59; nor by an act of a state legislature 
 giving the courts control over municipal 
 boundaries; Forsyth v. Hammond, 166 U. 
 S. 506, 17 Sup. Ct. 665, 41 L. Ed. 1095. The 
 decision as to what is a republican govern- 
 ment must necessarily remain absolutely 
 with congress ; Luther v. Borden, 7 How. 
 (U. S.) 42, 12 L. Ed. 581 ; and the execution 
 of this constitutional power belongs to the 
 political department of the government and 
 not the judicial; Taylor v. Beckham, 178 
 U. S. 548, 20 Sup. Ct S90, 1009, 44 L. Ed. 
 1187. See Republican Form of Govern- 
 ment. 
 
 The authority to grant federal aid in the 
 suppression of domestic violence may be ex- 
 ercised upon the call of •the executive when- 
 ever the legislature cannot be convened ; U. 
 S. v. Cruikshank, 92 U. S. 542, 23 L. Ed. 588. 
 
 The fifth article merely provides for the 
 method of amendment which is to be made 
 on the proposal of two-thirds of both houses 
 and becomes part of the constitution when 
 ratified by the legislature of three-fourths 
 of the states, or by conventions in three- 
 fourths of the states, as may be provided by 
 congress in the proposal. Congress may also 
 by a vote of two-thirds of each house or on 
 the application of the legislatures of two- 
 thirds of the states call a convention for 
 proposing amendments. 
 
 The limitations on the power of amend- 
 ment were that, prior to 180S the first and 
 fourth clauses in the ninth section of the 
 first article should not be affected. The 
 clauses in question were those relating to 
 the importation of slaves, and requiring 
 capitation or other direct tax to be laid in 
 proportion to the population. 
 
 It was also provided "that no stuie, with- 
 out its consent, shall be deprived of its 
 equal suffrage in the senate." 
 
 Proposed amendments to the constitution 
 need not be approved by the president; 
 Hollingsworth v. Virginia, 3 Dall. (U. S.) 378, 
 1 L. Ed. 644. 
 
 The sixth article declares that the debts 
 due under the Confederation shall be valid 
 against the United States; that the constitu- 
 tion and treaties made under its powers 
 shall be the supreme law of the land ; that 
 public officers shall be required by oath or 
 affirmation to support the constitution of 
 the United States ; and that no religious 
 test shall be required as a qualification for 
 office. 
 
 The first clause has reference to a then con- 
 dition and not to general powers of govern- 
 ment; Dred Scott v. Sandford, 19 How. 393, 
 15 L. Ed. 691. The second clause is a very 
 vital one, which has been and still is in the 
 course of constant application to test the va- 
 lidity of legislation by the states and by con- 
 gress. In either case if repugnant to the feder- 
 al constitution, laws or treaties, it is void and 
 
 the courts will so declare it; Calder v. Bull, 
 3 Dall. (U. S.) 3S6, 1 L. Ed. 648; Pollock v. 
 Trust Co., 157 U. S. 429, 15 Sup. Ct. 673, 39 
 L. Ed. 759; and in many other cases, which 
 have declared federal or state laws uncon- 
 stitutional, the principle has been declared. 
 The obligations imposed by the federal con- 
 stitution cannot be released or impaired 
 by a state constitution; Dodge v. Woolsey, 
 18 How. (U. S.) 331, 15 L. Ed. 401; or any 
 constitution or law of a foreign state re- 
 ceived into the Union; League v. De Young, 
 11 How. (U. S.) 185, 13 L. Ed. 657; Herman 
 v. Phalen, 14 How. (U. S.) 79, 14 L. Ed. 
 334. As to the principles which will be ap- 
 plied in testing the constitutionality of 
 statutes, see Constitutional. And as to the 
 force of treaties after being duly executed 
 and ratified, see Treaty. Under this pro- 
 vision of the constitution, the constitution, 
 laws and treaties of the United States are 
 made a part of the law of every state; 
 Hauenstein v. Lynham, 100 U. S. 483, 25 
 L. Ed. 628. 
 
 The seventh article directs what shall be 
 a sufficient ratification of this constitution 
 by the states. 
 
 In pursuance of the fifth article of the 
 constitution, articles in addition to, and 
 amendments of, the constitution, were pro- 
 posed by congress, and ratified by the legis- 
 latures of the several states. These addi- 
 tional articles are to the following import. 
 The first ten were proposed at the first 
 session of the first congress, in accordance 
 with the recommendations of various states 
 in ratifying the constitution, and were adopt- 
 ed in 1791. The dates of the adoption of 
 the subsequent amendments are given be- 
 low. 
 
 As to the combined effect of the first ten 
 amendments, see infra. 
 
 First Amendment. Congress shall make no 
 law respecting an establishment of religion, 
 or prohibiting the free exercise thereof; or 
 abridging the freedom of speech; or of the 
 press; or the right of the people to peace- 
 ably assemble, and to petition the govern- 
 ment for a redress of grievances. 
 
 Since this applies entirely to the federal 
 government, there is no provision protecting 
 the religious liberties of citizens of the 
 states, and the claim that an ordinance of 
 a state municipal corporation impairs it, 
 raises no federal question ; Permoli v. Munic- 
 ipality No. 1 of New Orleans, 3 How. (U. 
 S.) 589, 11 L. Ed. 739; the term "religion" 
 in this amendment refers exclusively to a 
 person's views of his relations to his Crea- 
 tor, though often confused with some par- 
 ticular form of worship, from which it must 
 be distinguished; Davis v. Beason, 133 U. S. 
 333, 10 Sup. Ct. 299, 33 L. Ed. 637. The 
 religious freedom secured is not available 
 as a protection against legislation for the 
 punishment of criminals, and their offences 
 are not mitigated by the sanction of a re?
 
 CONSTITUTION 
 
 637 
 
 CONSTITUTION 
 
 llgious sect ; Church of Jesus Christ of L. D. 
 S. v. U. S., 136 U. S. 1, 10 Sup. Ct. 792, 34 L. 
 Ed. 478; (the Mormon Church case); Reyn- 
 olds v. U. S., 98 U. S. 145, 25 L. Ed. 244; 
 or by territorial legislation; Davis v. Reason, 
 133 U. S. 333, 10 Sup. Ct. 299, 33 L. Ed. 637. 
 This provision securing religious freedom 
 is not violated by an appropriation of money 
 by congress to a hospital as compensation 
 for the treatment of poor patients ; Brad- 
 field v. Roberts, 175 U. S. 291, 20 Sup. Ct 
 121, 44 L. Ed. 168. 
 
 The provision securing freedom of speech 
 is not violated by legislation excluding alien 
 anarchists from the country; or their de- 
 portation after entry in violation of law; 
 U. S. v. Williams, 194 U. S. 279, 24 Sup. Ct. 
 719, 48 L. Ed. 979. 
 
 The provision securing freedom of the 
 press is not invaded by the exclusion of lot- 
 tery literature from the mails; Ex parte 
 Rapier, 143 U. S. 110, 12 Sup. Ct. 374, 36 
 L. Ed. 93 ; Horner v. U. S., 143 U. S. 207, 12 
 Sup. Ct. 407. 36 L. Ed. 126; and its transpor- 
 tation otherwise may be prohibited; Lottery 
 Case, 188 U. S. 321, 23 Sup. Ct. 321, 47 L. 
 Ed. 492, disregarding a suggestion in In re 
 Jackson, 96 U. S. 727, 24 L. Ed. 877. 
 
 The right of peaceable assemblage and of 
 petition was not created, but simply recog- 
 nized by the constitution and protected 
 against federal interference; for its con- 
 tinued protection, the reliance must be had 
 upon the states; U. S. v. Cruikshank, 92 U. 
 S. 542, 23 L. Ed. 588. 
 
 Second Amendment. A well regulated mi- 
 litia being necessary to the security of a 
 free state, the right of the people to keep and 
 bear arms, shall not be infringed. 
 
 The right secured by this article is not 
 created, but only secured against interfer- 
 ence by congress; U. S. v. Cruikshank, 92 
 U. S. 542, 23 L. Ed. 588; and it may be regu- 
 lated by state statutes not conflicting with 
 valid congressional action; Presser v. Illi- 
 nois, 116 U. S. 252, 6 Sup. Ct 580, 29 L. 
 Ed. 615; Wright v. Com., 77 Pa. 470; Nunn 
 v. State, 1 Ga. 243; Cockrum v. State, 24 
 Tex. 394; State v. Reid, 1 Ala. 612, 35 Am. 
 Dec. 44; State v. Mitchell, 3 Blackf. (Ind.) 
 229; Bliss v. Com., 2 Litt (Ky.) 90, 13 Am. 
 Dec. 251. 
 
 Third Amendment. No soldier shall, in 
 time of peace, be quartered in any house, 
 without the consent of the owner, nor in 
 time of war, but in a manner to be pre- 
 scribed by law. 
 
 No legal question seems to have arisen 
 under this article. 
 
 Fourth Amendment. The right of the peo- 
 ple to be secure in their persons, houses, 
 papers, -and effects, against unreasonable 
 searches and seizures, shall not be violated, 
 and no warrants shall issue, but upon prob- 
 able cause, supported by oath or affirmation, 
 and particularly describing the place to be 
 
 searched, and the persons or things to be 
 seized. 
 
 The guaranty of this article applies to 
 letters and sealed packages in the mails as 
 fully as to property retained in a man's 
 home; In re Jackson. 96 D. S. 727, 24 L. Bd 
 877. It is violated by an act requiring the 
 defendant in revenue cases to produce bis 
 private books etc., in court, and providing 
 that, on refusal, the case shall be taken as 
 confessed against him ; Boyd v. U. S., 116 
 U. S. 616, 6 Sup. Ct. 524, 29 L. Ed. 746; but 
 not by an inquiry of a broker as to pur- 
 chases or sales on behalf of any senator 
 of corporate stock liable to be affected by 
 the action of the senate; In re Chapman, 
 166 U. S. 661, 17 Sup. Ct 677, 41 L. Ed. 
 1154; nor by compulsory production of docu- 
 mentary evidence under a statute which 
 gives immunity from prosecution or for- 
 feiture because of the testimony given; In- 
 terstate Commerce Commission v. Baird, 194 
 ('. s. 25, 24 Sup. Ct 563, 48 L. Ed. 860. Tes- 
 timony procured in violation of this prohi- 
 bition is not thereby rendered inadmissible; 
 Adams v. New York. 192 U. S. 5S5, 24 Sup. 
 Ct. 372, 4S L. Ed. 575. 
 
 The provision as to warrants does not 
 apply to any issued under a state process: 
 Smith v. Maryland, IS How. (U. S.) 71. 15 
 L. Ed. 269 ; nor to an action by the federal 
 government for a debt due to it without 
 search warrant: Den v. Improv. Co., 18 
 How. (U. S.) 272, 15 L. Ed. 372. 
 
 Fifth Amendment. No persons shall he 
 held to answer for a capital, or other in- 
 famous crime, unless on a presentment or 
 indictment of a grand jury, except in cases 
 arising in the land or naval forces, or in 
 the militia, when in actual service in time 
 of war or public danger ; nor shall any per- 
 son be subject for the same offence to be 
 twice put in jeopardy of life or limb; nor 
 shall be compelled in any criminal case to 
 be witness against himself, nor he deprived 
 of life, liberty, or property, without due 
 process of law; nor shall private property 
 be taken for public use, without just com- 
 pensation. 
 
 This amendment operates solely on the 
 federal government and not on the state; 
 Harrington v. Missouri. 205 U. S. 4S3, 27 
 Sup. Ct. 582, 51 L. Ed. 890; Hunter v. Pitts- 
 burgh, 207 U. S. 161, 28 Sup. Ct 40, 52 L. 
 Ed. 15L It is satisfied by one inquiry and 
 adjudication, and an indictment found by 
 the proper grand jury should be accepted 
 anywhere within the United States as at 
 least prima facie evidence of probable cause 
 and sufficient basis for the removal of the 
 person charged from the district where he 
 is arrested; Heavers v. Henkel, 194 U. S. 7::. 
 24 Sup. Ct 605, 48 L. Ed. 882. The require- 
 ment in the amendment of presentment or 
 indictment for the grand jury does not take 
 upon itself the locai law as to how the
 
 CONSTITUTION 
 
 638 
 
 CONSTITUTION 
 
 grand jury shall be made up and raise the 
 latter to a constitutional requirement; Tal- 
 ton v. Mayes, 163 U. S. 376, 16 Sup. Ct. 9S6, 
 41 L. Ed. 196. 
 
 Whether a person on trial is compelled to 
 be witness against himself contrary to the 
 5th Amendment because compelled to stand 
 up and walk before the jury, or because the 
 jury were stationed during a recess so as 
 to observe his size and walk, was not de- 
 cided, but it was held that it did not af- 
 fect the jurisdiction of the trial court and 
 render the judgment void; In re Moran, 203 
 U. S. 96, 27 Sup. Ct 25, 51 L. Ed. 105. 
 
 As to the several guarantees contained in 
 this article, see the separate titles and par- 
 ticularly Fourteenth Amendment; Due 
 Process of Law; Equal Protection of the 
 Laws. 
 
 Sixth Amendment. In all criminal prose- 
 cutions, the accused shall enjoy the right 
 to a speedy and public trial, by an impar- 
 tial jury of the state and district wherein 
 the crime shall have been committed, which 
 district shall have been previously ascer- 
 tained by law, and to be informed of the 
 nature and cause of the accusation; to be 
 confronted with the witnesses against him ; 
 to have compulsory process for obtaining 
 witnesses in his favor, and to have the as- 
 sistance of counsel for his defence. 
 
 The purpose of this amendment was to 
 provide for trial by jury in criminal cases 
 in all the federal courts; Ex parte Milligan, 
 4 Wall. (U. S.) 2, 18 L. Ed. 281; it applies 
 to the territories; Thompson v> Utah, 170 
 U. S. 343, 18 Sup. Ct. 620, 42 L. Ed. 1061; 
 and after the admission of a state, it can- 
 not provide for the trial of felonies com- 
 mitted before its admission otherwise than 
 by a common law jury; Thompson v. Utah, 
 170 U. S. 343, 18 Sup. Ct. 620, 42 L. Ed. 
 1061. The provision applies to all criminal 
 cases, not felonies merely; Callan v. Wilson, 
 127 U. S. 540, 8 Sup. Ct. 1301, 32 L. Ed. 
 223; but only such crimes as were previous- 
 ly tried by jury; U. S. v. Duane, Wall. Sr. 
 102, Fed. Cas. No. 14,997. It does not in- 
 clude an action for goods claimed to have 
 been forfeited by an importer; U. S." v. Zuck- 
 ef, 161 U. S. 475, 16 Sup. Ct. 641, 40 L. Ed. 
 777 ; or petty criminal offences ; Schick v. 
 U. S., 195 U. S. 65, 24 Sup. Ct. S26, 49 L. 
 Ed. 99, 1 Ann. Cas. 5S5. The protection of 
 this amendment extends to aliens within 
 the country ; Wong Wing v. U. S., 163 U. S. 
 228, 16 Sup. Ct. 977, 41 L. Ed. 140. 
 
 See Jury; Venue; Witness. 
 
 Seventh Amendment. In suits at common 
 law, where the value in controversy shall 
 exceed twenty dollars, the right of trial by 
 jury shall be preserved ; and no fact tried 
 by a jury shall be otherwise re-examined 
 in any court of the United States, than ac- 
 cording to the rules of the common law. 
 
 This article secures the right of trial by 
 jury in civil cases. Suits at common law 
 
 mean only those distinguished from ad- 
 miralty and equity ; Parsons v. Bedford, 3 
 Pet. (U. S.) 433, 7 L. Ed. 732; Shields v. 
 Thomas, IS How. (U. S.) 253, 15 L. Ed. 368; 
 U. S. v. La Vengeance, 3 Dall. (U. S.) 297, 
 1 L. Ed. 610; but the right cannot be im- 
 paired by blending a claim at law with an 
 equitable demand; Scott v. Neely, 140 U. S. 
 106, 11 Sup. Ct. 712, 35 L. Ed. 358. The 
 right to a jury trial is secured in bank- 
 ruptcy cases; In re Wood, 210 U. S. 246, 258, 
 28 Sup. Ct. 621, 52 L. Ed. 1046 ; and in pro- 
 ceedings for the condemnation of property 
 seized as a prize; Armstrong's Foundry, 6 
 Wall. (U. S.) 766, 18 L. Ed. 882; The Sarah, 
 8 Wheat. (U. S.) 394, 5 L. Ed. 644; it does 
 not apply to proceedings to disbar an at- 
 torney; In re Wall, 107 U. S. 265, 2 Sup. 
 Ct 569, 27 L. Ed. 552; nor to findings by 
 the court of claims; McElrath v. U. S., 102 
 U. S. 426, 26 L. Ed. 189; or by a special 
 tribunal for hearing claims against a munic- 
 ipality not strictly legal, but properly pro- 
 vided for by legislation; Guthrie Nat. Bank 
 v. Guthrie, 173 U. S. 528, 19 Sup. Ct. 513, 
 43 L. Ed. 796; nor to condemnations under 
 the right of eminent domain; Long Island 
 Water Supply Co. v. Brooklyn, 166 U. S. 
 685, 17 Sup. Ct. 718, 41 L. Ed. 1165; Bau- 
 man v. Ross, 167 U. S. 548, 17 Sup. Ct 966, 
 42 L. Ed. 270. The common law which in 
 this article is made the criterion of suits 
 in which the right of trial by jury is se- 
 cured is the common law of England; U. S. 
 v. Wonson, 1 Gall. 5, Fed. Cas.^ No. 16,750. 
 See Jury. 
 
 Eighth Amendment. Excessive bail shall 
 not be required, nor excessive fines imposed, 
 nor cruel and unusual punishment inflicted. 
 
 As to the prohibitions of this article, see 
 Bail; Fine; Punishment. 
 
 Ninth Amendment. The enumeration in 
 the constitution of certain rights, shall not 
 be construed to deny or disparage others re- 
 tained by the people. 
 
 A distinction is taken between a case of 
 express prohibition of state actions and one 
 in which the power of the states is taken 
 away by implication. In the former case 
 the power of the state ceased upon the adop- 
 tion of the constitution, in the latter it 
 continues until congress acts upon the sub- 
 ject matter; Moore v. Houston, 3 S. & R. 
 (Pa.) 169, 179, to which a writ of error to 
 the United States Supreme Court was dis- 
 missed. So a grant to congress of power 
 over a certain subject matter does not in- 
 vest any particular court with jurisdiction 
 over it until congress has enacted a law 
 upon the subject; U. S. v. New Bedford 
 Bridge, 1 Woodb. & M. 401, Fed. Cas. No. 
 15,867. 
 
 Tenth Amendment. The powers not dele- 
 gated to the United States by the constitu- 
 tion, nor prohihited by it to the states, are 
 reserved to the states respectfully, or to the 
 people.
 
 CONSTITUTION 
 
 639 
 
 CONSTITUTION 
 
 The federal government possesses only the 
 delegated powers defined by the constitution 
 and all others are reserved to the Si 
 U. S. v. Cruikshank, 92 U. S. 542, 23 L. Ed. 
 588; from tins results a different rule of in- 
 terpretation of the federal constitution from 
 those of the states; the former is strict, the 
 latter liberal; Com. v. Hartman, 17 Pa. 118; 
 Weister v. Hade, 52 Pa. 474. See Interpre- 
 tation. 
 
 All powers not conferred upon the federal 
 government by the constitution are reserved 
 to the states, and among the powers not 
 surrendered by them are the police power 
 (subject to the limitations imposed by the 
 constitution) ; New Orleans Gaslight Co. 
 v. Light Co., 115 U. S. 650, •'- Sup. Ot 2.~.l\ 29 
 L. Ed. 51G; Louisville Gas Co. v. Gas Co., 
 115 U. S. GS3, 6 Sup. Ct. 205, 29 L. Ed. 510; 
 Patterson v. Kentucky, 97 U. S. 501, -I L. 
 Ed. 1115; Prigg v. Com., 1G Pet. (U. S.) 539, 
 10 L. Ed. 10G0; the right to control tide wa- 
 ters within the limits of the states; Weber 
 v. Harbor Com'rs, IS Wall. (U. S.) 57, 21 L. 
 Ed. 798; Illinois Cent. R. Co. v. Illinois, 146 
 U. S. 387, 13 Sup. Ct. 110, 36 L. Ed. 1018; 
 Tollard v. Hagan, 3 How. (U. S.) 212, 11 L. 
 Ed. 565; the regulation of real property 
 with respect to its acquisition, tenure and 
 disposition ; U. S. v. Fox, 94 U. S. 315, 24 L. 
 Ed. 192; and the imposition of succession 
 duties; Blackstone v. Miller, 188 U. S. 189, 
 23 Sup. Ct. 277, 47 L. Ed. 439 ; and generally 
 the power of taxation of subject matter with- 
 in their jurisdiction ; Kirtland v. Hotchkiss, 
 100 U. S. 491, 25 L. Ed. 558; Providence 
 Bank v. Billings, 4 Pet. (U. S.) 563, 7 L. 
 Ed. 939. 
 
 The United States has no inherent pow- 
 ers of sovereignty and only those enumerat- 
 ed in the constitution of the United States; 
 the manifest purpose of the 10th Amendment 
 was to put beyond dispute the proposition 
 that all powers not so granted were reserved 
 to the people, and any further powers can 
 only be attained by a new grant; Kansas v. 
 Colorado. 206 U. S. 46, 27 Sup. Ct. 055, 51 
 L. Ed. 956. 
 
 The first ten amendments do not apply to 
 the states; Fox v. Ohio, 5 How. (U. S.) 410, 
 12 L. Ed. 213; Twitchell v. Pennsylvania, 7 
 Wall. (U. S.) 321, 19 L. Ed. 223; Spies v. 
 Illinois, 123 U. S. 131, 8 Sup. Ct. 22, 31 L. 
 Ed. 80; McElvaine v. Brush, 142 U. S. 155, 
 1G0, 12 Sup. Ct. 150, 35 L. Ed. 971 ; Jack v. 
 Kansas, 1'.".) T T . S. 372, 26 Sup. Ct. 73, 50 L. 
 Ed. 234, 4 Ann. Cas. 089; the same was held 
 as to the first eight amendments; Twining 
 v. New Jersey, 211 U. S. 7S. 29 Sup. Ct. 14, 
 53 L. Ed. 97; and as to the 2d and 4th : Mil- 
 ler v. Texas, 153 U. S. 535, 14 Sup. Ct. S74, 
 38 L. Ed. 812; and as to the 5th; Kelly v. 
 Pittsburgh, 104 U. S. 78, 20 L. Ed. 058; Da- 
 vis v. Texas, 139 U. S. 051, 11 Sup. Ct. 075, 
 35 L. Ed. 300; Fallbrook Irrig. District v. 
 Bradley, 164 U. S. 112, 17 Sup. Ct. 50, 41 L. 
 Ed. 309; and as to the 5th and 0th; In re 
 
 Sawyer, 124 U. S. 200, 8 Sup. Ct 482, 31 L. 
 Ed. 402; Davis v. Texas. L39 D. S. 651, 11 
 
 Sup. Ct. 'iT.", 35 L. Ed. 800; and as to the 
 8th Amendment; O'Neil v. Vermont, 111 I . 
 s. ;;l':;, 12 Sup. Ct 693, 36 L 450; Eilen- 
 
 becker v. District Court, 134 I. 10 
 
 Sup. Ct. 424, 33 L. Ed. 801; Pervi 
 5 Wall. (U. S.) 475, 18 L. Ed. 608. 1 b 
 vision of the 14th Amendment forbidding a 
 stale to make or enforce any law abti 
 the privileges and immunities of citizei 
 the United States does not operate to extend 
 to the states the limitations on the powers 
 of the federal government contained in the 
 LOtb Amendment; In re Kemmler, 136 D. B. 
 436, 10 Sup. Ct. 930, .",1 L. Ed. 519; Maxwell 
 v. Dow, 176 U. S. 581, 20 Sup. Ct. 41s, 494, 
 44 L. Ed. 597; or those contained in the first 
 eighl ; Twining v. New. Jersey, 211 U. S. 78, 
 29 Sup. Ct. 14, 53 L. Ed. 97; but the 7th 
 applies in an appellate federal court to a 
 case which was tried in a state court; Jus- 
 tlces of Supreme Court v. U. S., 9 Wall. (U. 
 S.) 274, 19 L. Ed. 658. 
 
 Eleventh Amendment. H79S). The judi- 
 cial power of the United States shall not be 
 construed to extend to any suit in law or 
 equity, commenced or prosecuted against one 
 of the United States, by citizens of another 
 state, or by citizens or subjects of any for- 
 eign state. 
 
 This amendment was a result of the deci- 
 sion in Chisholm v. Georgia, 2 Dall. (U. S.) 
 419, 1 L. Ed. 440. It has been the subject 
 of much judicial construction and the cases 
 upon the point as to what is a suit against 
 a state are very numerous, the question be- 
 ing usually raised as to whether a suit 
 against a state officer respecting property or 
 official action is in fact a suit against a state. 
 
 Many suits against state officers have been 
 held to be in effect against the state, but it 
 is established, as a settled principle, that 
 an attempt of a state officer to enforce an 
 unconstitutional statute is a proceeding with- 
 out authority of, and does not affect, the 
 state in its sovereign capacity and is an il- 
 legal act, and the otlieer is stripped of his 
 official character and is subjected as an in- 
 dividual for the consequences of it. The 
 state has no power to impart to its officer 
 immunity from responsibility to the supreme 
 authority of the U. S.; Ex parte Yonm;. 209 
 U. S. 123, 28 Sup. Ct. -til. 52 L. Ed. 711, 13 
 L. R. A. (N. S.) 932, U Ann. Cas. 704. 
 
 As to what has been held to be a suit 
 against a state within this amendment, see 
 State; and also an interesting discussion 
 of the history and scope of this amendment 
 by W. L. Guthrie in S Colum. L. Rev. 183. 
 In the South Carolina Distillery Cases. Mur- 
 ray v. Distilling Co.. 213 D. B. 151, -2'.) Sup. 
 Ct. 458, 53 I- Ed. 742, and Murray v. South 
 Caml ina. 213 U. S. 171. 29 Sup. Ct. 4<',5. 5:1 
 L. Ed. 752, the first being a certiorari to the 
 circuit court of appeals, and the second be- 
 ing a writ of error to the supreme court of
 
 CONSTITUTION 
 
 640 
 
 CONSTITUTION 
 
 the state, the former was reversed and the 
 latter affirmed. It was held that a bill in 
 equity to compel specific performance of a 
 contract between an individual and the state 
 cannot, against the objection of the state, 
 be maintained in the federal courts; and 
 that the consent of a state to be sued in its 
 own courts by a creditor does not give that 
 creditor a right to sue in a federal court. 
 It was also held that although by engaging 
 in business, a state may not avoid a pre- 
 existing right of the federal government to 
 tax that business, it does not thereby lose 
 the exemption from suit under this amend- 
 ment, which was also held to prevent a suit 
 in the federal courts against state officers 
 by vendors of supplies for business carried 
 on by the courts. 
 
 Twelfth Amendment (1S04). The electors 
 shall meet in their respective states, and 
 .vote by ballot for president and vice-presi- 
 dent, one of whom, at least, shall not be an 
 inhabitant of the same state with them- 
 selves; they shall name in their ballots the 
 person voted for as president, and in dis- 
 tinct ballots the person voted for as vice- 
 president, and they shall make distinct lists 
 of all persons voted for as president, and 
 of all persons voted for as vice-president, 
 and of the number of votes for each, which 
 list they shall sign and certify, and trans- 
 mit sealed to the seat of the government of 
 the United States, directed to the president 
 of the senate; the president of the senate 
 shall, in the presence of the senate and house 
 of representatives, open all the certificates 
 and the votes shall then be counted ; the per- 
 son having the greatest number of votes for 
 president, shall be the president, if such 
 number be a majority of the whole number 
 of electors appointed ; and if no person have 
 such majority, then from the persons having 
 the highest numbers, not exceeding three on 
 the list of those voted for as president, the 
 house of representatives shall choose im- 
 mediately, by ballot, the president. But in 
 choosing the president, the votes shall be 
 taken by states, the representation from each 
 state having one vote ; a quorum for this pur- 
 pose shall consist of a member or members 
 from two-thirds of the states, and a majority 
 of all the states shall be necessary to a choice. 
 And if the house of representatives shall not 
 choose a president whenever the right of 
 choice shall devolve upon them, before the 
 fourth day of March next following, then 
 the vice-president shall act as president, as 
 in the case of death or other constitutional 
 disability of the president. 
 
 The person having the greatest number of 
 votes as vice-president shall be the vice- 
 president, if such number be a majority 
 of the whole number of electors appoint- 
 ed, and if no person have a majority, then 
 from the two highest numbers on the list, 
 the senate shall choose the vice-president; 
 a quorum for the purpose shall consist 
 
 of two-thirds of the whole number of sena- 
 tors, and a majority of the whole shall be 
 necessary to a choice. 
 
 But no person constitutionally ineligible 
 to the office of president shall be eligible to 
 that of vice-president of the United States. 
 
 This is a substitute for the third para- 
 graph of section 1 of Article II of the consti- 
 tution and provides for the method of the 
 election of president and vice-president by 
 the electors, or in default of an election by 
 them. 
 
 Thirteenth Amendment (1865). Neither 
 slavery nor involuntary servitude, except as 
 a punishment for crime whereof the party 
 shall have been duly convicted, shall exist 
 within the United States, or any place sub- 
 ject to their jurisdiction. 
 
 Congress shall have power to enforce this 
 article by appropriate legislation. 
 
 This amendment has been recognized by 
 the Supreme Court as having been passed 
 with special reference to the completion of 
 the enfranchisement of the African race; 
 Ex parte Virginia, 100 U. S. 339, 25 L. Ed. 
 676; but the word "servitude" which is in- 
 cluded in it is of larger meaning than slav- 
 ery, and by the use of it the amendment 
 operates to prohibit any kind of slavery, in- 
 cluding peonage and coolie labor; Butchers' 
 Benevolent Ass'n v. Slaughter House Co., 16 
 Wall. (U. S.) 36, 21 L. Ed. 394; and every 
 species of involuntary servitude; U. S. v. 
 Harris, 106 U. S. 629, 1 Sup. Ct. 601, 27 L. 
 Ed. 290; but imprisonment at hard labor, 
 compulsory and unpaid, is in the strongest 
 sense of the words within this exception; 
 Ex parte Wilson, 114 U. S. 417, 5 Sup. Ct. 
 935, 29 L. Ed. 89. In a much later case than 
 those which first defined the scope of this 
 amendment, it is said: "The words 'invol- 
 untary servitude' have a 'larger meaning 
 than slavery.' . . . The plain intention 
 was to abolish slavery of whatever name 
 and form and all its badges and incidents; 
 to render impossible any')ltate of bondage; 
 to make labor free, by prohibiting that con- 
 trol by which the personal service of one 
 man is disposed of or coerced for another's 
 benefit which is the essence of involuntary 
 servitude." Bailey v. Alabama, 219 U. S. 
 241, 31 Sup. Ct. 145, 55 L. Ed. 191. 
 
 Fourteenth Amendment (1868). All per- 
 sons born or naturalized in the United 
 States, and subject to the jurisdiction there- 
 of, are citizens of the United States and of 
 the state wherein they reside. No state 
 shall make or enforce any law which shall 
 abridge the privileges or immunities of citi- 
 zens of the United States; nor shall any 
 state deprive any person of life, liberty, or 
 property, without due process of law; nor 
 deny to any person within its jurisdiction 
 the equal protection of the laws. 
 
 Representatives shall be apportioned among 
 the several states according to their respec- 
 tive numbers, counting the whole number of
 
 CONSTITUTION 
 
 641 
 
 CONSTITUTION 
 
 persons In each state, excluding Indians not 
 taxed. But when the right to vote at any 
 election for the choice of electors for presi- 
 dent and vice-president of the United States, 
 representatives in congress, the executive 
 and judicial officers of a state, or the mem- 
 bers of the legislature thereof, is denied to 
 the male Inhabitants of such state, being of 
 twenty-one years of age, and citizens of the 
 United States, or in any way abridged, ex- 
 cept for participation in rebellion, or other 
 crime, the basis of representation therein 
 shall be reduced in the proportion which the 
 number of such male citizens shall bear to 
 the whole number of male citizens twenty- 
 one years of age in such state. 
 
 No person shall be a senator or represent- 
 ative in congress, or elector of president or 
 vice-president, or hold any office, civil or 
 military, under the United States, or under 
 any state, who. having previously taken an 
 oath, as a member of congress, or as an offi- 
 cer of the United States, or as a member of 
 any state legislature, or as an executive or 
 judicial officer of any state, to support the 
 constitution of the United States, shall have 
 engaged in insurrection or rebellion against 
 the same, or given aid or comfort to the 
 enemies thereof. But congress may by a 
 vote of two-thirds of each house, remove such 
 disability. 
 
 The validity of the public debt of the Unit- 
 ed States, authorized by law, including debts 
 incurred for payment of pensions and boun- 
 ties for services in suppressing insurrection 
 or rebellion, shall not be questioned. But 
 neither the United States nor any state shall 
 assume or pay any debt or obligation incur- 
 red in aid of insurrection or rebellion against 
 the United States, or any claim for the loss 
 or emancipation of any slave ; hut all such 
 debts, obligations and claims shall be held 
 illegal and void. 
 
 The congress shall have power to enforce, 
 by appropriate legislation, the provisions of 
 this article. 
 
 This amendment has given rise to so much 
 discussion by the courts that it requires full- 
 er treatment than can he given here, and 
 for this see the title, Fourteenth A m i:\n- 
 ment, and the cross-references therein; Po- 
 lice Power ; Eminent Domain. 
 
 Fifteenth Amendment (1870). The right 
 of citizens of the United States to vote shall 
 not be denied or abridged by the United 
 States or by any state on account of race, 
 color, or previous condition of servitude. 
 
 The congress shall have power to enforce 
 this article by appropriate legislation. 
 
 This amendment under the decisions is 
 not to he extended beyond the precise mean- 
 ing of the words employed. It does not 
 operate to increase the right of suffrage In 
 the states, except so far as that had been 
 previously abridged by "race, color or previ- 
 ous condition of servitude," or had been con- 
 fined to white persons; Ex parte Yarbrough, 
 Bouv. — 41 
 
 110 U. S. 651, 4 Sup. Ct. 152, 2S L. Ed. 274. 
 It does not confer the right of suffrage upon 
 women; Minor v. Ha "Jl Wall. (U. 
 
 8.) 182, 22 L. Ed. G27 ; nor upon Indians still 
 under tribal relations and not naturalized ; 
 Elk v. Wilkins, 112 U. B. 94, 5 Sup. Ct. 41, 
 28 L. Ed. 643. The amendment is not violat- 
 ed by the qualifications requiring a B] 
 amount of literacy; Williams v. Miss! 
 170 U. S. 213, 18 Sup. Ct. 583, 42 L. Ed 
 
 Sixteenth Amendment (1913). i 
 shall have power to lay and collect tax< 
 Incomes, from whatever source derived, with- 
 out apportionment among the several Btates, 
 and without regard to any census or enu- 
 meration." 
 
 Seventeenth Amendment (1913). The sen- 
 ate of the United States shall be composed 
 of two senators from each state, elected by 
 the people thereof, for six years; and each 
 senator shall have one vote. The electors 
 in each state shall have the qualifications 
 requisite for electors of the most numerous 
 branch of the state legislatures. 
 
 When* vacancies happen in the representa- 
 tion of any state in the senate, the executive 
 authority of such state shall issue writs of 
 election to fill such vacancies: Provided, 
 that the legislature of any state may 
 power the executive thereof to make tem- 
 porary appointment until the people fill the 
 vacancies by election as the legislature may 
 direct. 
 
 The reader is referred to the notes to the 
 United States Constitution in Vol. I of Ar- 
 demas Stewart's Edition of Purdon'g Dig. 
 (Pa. Stats.) which may be properly termed a 
 treatise on the subject of great value. 
 
 CONSTITUTIONAL. That which is con- 
 sonant and agrees with the constitution. 
 
 Laws made in violation of the constitu- 
 tion are null and void. It is well establish- 
 ed that it is the function of the courts so to 
 declare them in any case coming before the 
 court, which involves the question of their 
 constitutionality. See infra. "An unconE 
 tional law is not a law." Chicago, I. & L. 
 Ry. Co. v. Hackett, 228 U. S. 559, 33 Sup. 
 Ct. 5S1, 57 L. Ed. — . The presumption 
 is always in favor of the constitutionality Of 
 a law, and the party alleging the opposite 
 must clearly establish it; Fletcher v. Peck, 
 6 da. 1 1 ■. S.) 87, 3 L. Ed. 162; Sweet v. 
 RecheL. 159 U. S. 3S0. 16 Sup. Ct. 43, 40 
 L. Ed. 1SS; U. S. v. Ry. Co.. 160 D. S 
 16 Sup. Ct. 427, W I-. Ed. 576; Ex parte 
 Davis, 21 Fed. 396; Bwing v. Hoblitzelle, 
 S5 Mo. 64; Pleuler v. state, ll Neb. 547, 
 10 N. W. 481; Oom'rs of Leavenworth Coun- 
 ty v. Miller. 7 Kan. 47!>, 12 Am. Rep. 42.".; 
 Sawyer v. Dooley, 21 Nev. 390, 32 Pac. 437; 
 In re League island, l Brewst (Pa.) 524; 
 People v. Reardon, L84 N. Y. 431, 77 N. E. 
 970, 8 L. R. A. (X. S.) 314, 112 Am. St. Rep. 
 628, 6 Ann. Oaa 5ir> : New York v. Reardon, 
 204 U. S. 152, 27 Sup. Ct 188, 51 L. Ed.
 
 CONSTITUTIONAL. 
 
 642 
 
 CONSTITUTIONAL. 
 
 415, 9 Ann. Cas. 736; where an act is ca- 
 pable of two interpretations, the court will 
 adopt that which will sustain it rather than 
 that which will render it void as unconsti- 
 tutional ; St. Louis Nat. Bank v. Papin, 4 
 Dill. 29, Fed. Cas. No. 12,239; the incom- 
 patibility of the statute with the constitu- 
 tion should be so clear as to leave little rea- 
 son for doubt before it is pronounced to be 
 invalid; Ex parte Garland, 4 Wall. (U. S.) 
 333, 18 L. Ed. 366. 
 
 An act may be declared partly valid and 
 partly void as unconstitutional ; Com. v. 
 Kimball, 24 Pick. (Mass.) 361, 35 Am. Dec. 
 326; Berry v. R. Co., 41 Md. 446, 20 Am. 
 Rep. 69; McPherson v. Secretary of State, 
 92 Mich. 377, 52 N. W. 4G9, 16 L. R. A. 475, 
 31 Am. St. Rep. 587; In re Sternbach, 45 
 Fed. 175; Marshall Field & Co. v. Clark, 
 143 U. S. 649, 12 Sup. Ct. 495, 36 L. Ed. 294; 
 Unity v. Burrage, 103 U. S. 459, 26 L. Ed. 
 405; Presser v. Illinois, 116 U. S. 252, 6 
 Sup. Ct. 580, 29 L. Ed. 615; Gamble v. Mc- 
 Crady, 75 N. C. 509. 
 
 A part of a law may be unconstitutional, 
 while there is no such objection to the re- 
 maining parts, and in this case all of the 
 law stands, except that part which is un- 
 constitutional; People v. Van De Carr, 178 
 N. Y. 425, 70 N. E. 965, 66 L. !R. A. 189, 102 
 Am. St. Rep. 516; Cella Commission Co. v. 
 Bohlinger, 147 Fed. 419, 78 C. C. A. 467, 8 
 L. R. A. (N. S.) 537 ; but the parts must be 
 wholly independent of each other ; Allen v. 
 Louisiana, 103 U. S. 80, 26 L. Ed. 318; and 
 capable of separation ; Bank of Hamilton v. 
 Dudley, 2 Pet. (U. S.) 492, 526, 7 L. Ed. 496 ; 
 Presser v. Illinois, 116 U. S. 252, 6 Sup. Ct. 
 580, 29 L. Ed. 615 ; El Paso & N. E. R. Co. 
 v. Gutierrez, 215 U. S. 87, 30 Sup. Ct. 21, 54 
 L. Ed. 106. The parts must be separable 
 so that each may be read by itself; Bald- 
 win v. Franks, 120 U. S. 678, 7 Sup. Ct. 656, 
 763, 30 L. Ed. 766; U. S. v. Steffens, 100 II. 
 S. 82, 25 L. Ed. 550; but if the two pro- 
 visions are so united that a presumption 
 arises that the legislature would not have 
 adopted the one without the other both will 
 fail ; Ex parte Frazer, 54 Cal. 94 ; Western 
 Union Tel. Co. v. State, 62 Tex. 630; Slau- 
 son v. City of Racine, 13 Wis. 398; Con- 
 nolly v. Sewer Pipe Co., 184 U. S. 540, 565, 
 22 Sup. Ct. 431, 46 L. Ed. 679 ; and it is a 
 question for the court to determine whether 
 it was the intent of congress to have the 
 part which is constitutional stand by itself; 
 Butts v. Transp. Co., 230 U. S. 126, 33 Sup. 
 
 Ct. 964, 57 L. Ed. ; or where the section 
 
 ' which is unconstitutional is an inseparable 
 part of several sections which form one sys- 
 tem mutually dependent; Campau v. City 
 of Detroit, 14 Mich. 276; or where all the 
 provisions of the act are secondary to the 
 unconstitutional provisions; Brooks v. Hy- 
 dorn, 76 Mich. 273, 42 N. W. 1122 ; where a 
 portion is unconstitutional, the statute must 
 fall as a whole, unless the apparent legis- 
 
 lative intent is that in such case the re- 
 maining portion shall stand alone; Grey v. 
 City of Dover, 62 N. J. L. 40, 40 Atl. 640. 
 
 This power of the courts to declare a law 
 unconstitutional can only exist where there 
 is a written constitution. No such power is 
 possessed by the English courts, and an act 
 of parliament is absolutely conclusive and 
 binds everybody when once its meaning is 
 ascertained. But, where a written constitu- 
 tion exists, it is the expression of the will 
 of the sovereign power, and no body which 
 owes its existence to that constitution (as 
 does the legislature) can violate this funda- 
 mental expression of the will of the people. 
 It was originally doubted whether the courts 
 possessed this power, even where a written 
 constitution exists, but it is now established 
 beyond doubt. The question may arise with 
 regard to both state and United States laws 
 considered with reference to the United 
 States constitution, and with regard to state 
 laws also as considered in reference to the 
 state. No important question of law has 
 ever been approached with more caution, 
 examined and discussed with more delibera- 
 tion and finally determined more conclusive- 
 ly, than that of the existence of this judicial 
 power. It arose as early as 1792, on an act 
 conferring powers upon the judges which 
 were alleged to be not judicial, but a de- 
 cision was avoided by repeal of the stat- 
 ute; see Hayburn's Case, 2 Dall. (U. S.) 409, 
 1 L. Ed. 436; but the question arising in 
 another case, the act was declared uncon- 
 stitutional ; see U. S. v. Ferreira, 13 How. 
 (U. S.) 40, 52 note, 14 L. Ed. 42 ; the ques- 
 tion was again raised in 1798 and not de- 
 cided; Calder v. Bull, 3 Dall. (U. S.) 386, 
 1 L. Ed. 648; and later it was stated from 
 the bench as the general sentiment of the 
 bench and bar that the power existed ; Com. 
 v. Coxe, 4 Dall. (U. S.) 194, 1 L. Ed. 786. 
 But in 1S03 the question was directly raised 
 in a famous case recently much discussed 
 in legal periodical literature, and the power 
 and duty of the court to declare an act un- 
 constitutional were declared in an opinion 
 by Marshall, C. J., in what Kent terms "an 
 argument approaching to the precision and 
 certainty of a mathematical demonstra- 
 tion ;" 1 Kent 453 ; in that case the actual 
 decision was against the jurisdiction, and 
 therefore no law was declared unconstitu- 
 tional, but the reasoning of the opinion is 
 the basis of the rule afterwards applied and 
 firmly settled; the question was next seri- 
 ously raised and finally settled by the rea- 
 soning of Marshall, C. J., in Cohen v. Vir- 
 ginia, 6 Wheat. (U. S.) 264, 5 L. Ed. 257; 
 Marbury v. Madison, 1 Cra. (U. . S.) 137, 2 
 L. Ed. 60; prior to this decision the ques- 
 tion had been raised and decided in favor 
 of the power of the courts in New Jersey; 
 State v. Parkhurst, 9 N. J. L. 427, 440, 444 ; 
 in Virginia, In re First Case of the Judges, 4 
 Call, 1, 135 ; Com. v. Cherry, 2 Va. Cas. 20 ;
 
 CONSTITUTIONAL 
 
 G43 
 
 CONSTITUTIONAL 
 
 Page v. Pendleton, Wythe, 211; in South 
 Carolina, Bowman v. Mlddleton, 1 Bay 252 ; 
 in North Carolina, Don v. Singleton, 1 N. C. 
 48; in Rhode Island, I'amph. J. B. Varnuin, 
 Providence, 17S7 ; and it was raised In New 
 York in a ease argued by Hamilton; Ham- 
 ilton's Works, vol. 5, 115; vol. 7, 197. See 
 Dillon, Laws & Jur. of Eng. 203. 
 
 In Eakin v. Raub, 12 S. & R. (Pa.) 330, 
 Gibson, C. J., in a dissenting opinion, was 
 of opinion that the right of the judiciary to 
 declare a legislative act unconstitutional 
 does not exist, unless expressly stated; but 
 that it is expressly given by the clause In 
 the federal constitution which provides that 
 the constitution shall be the supreme law 
 of the land, etc. The same judge in Norris 
 v. Clymcr, 2 Ta. 2S1, said to counsel that 
 he had changed his opinion for two reasons: 
 — the late convention of Pennsylvania by 
 their silence sanctioned the pretensions of 
 the court to deal freely with the acts of the 
 legislature; and he was satisfied from ex- 
 perience of the necessity of the case. 
 
 The power has been exercised by the su- 
 preme court of the United States in the fol- 
 lowing cases: Hayburn's Case, 2 Dall. (U. 
 S.) 409, 1 L. Ed. 436; U. S. v. Ferreira, 13 
 How. (U. S.) 40, 52, 14 L. Ed. 42; Marbury 
 v. Madison, 1 Cra. (U. S.) 137, 2 L. Ed. GO ; 
 Gordon v. U. S., 2 Wall. (U. S.) 561, 17 L. 
 Ed. 921 ; In re Garland, 4 Wall. (U. S.) 333, 
 18 L. Ed. 366; Hepburn v. Griswold, 8 
 Wall. (U. S.) 603, 19 L. Ed. 513; U. S. v. 
 Dewitt, 9 Wall. (U. S.) 41, 19 L. Ed. 593; 
 Supreme Justices v. Murray, 9 Wall. (U. S.) 
 274, 19 L. Ed. 658; Collector v. Day, 11 
 Wall. (U. S.) 113, 20 L. Ed. 122; U. S. v. 
 Klein, 13 Wall. (U. S.) 128, 20 L. Ed. 519; 
 U. S. v. 'R. Co., 17 Wall. (U. S.) 322. 21 L. 
 Ed. 597; U. S. v. Reese, 92 U. S. 214, 23 
 L. Ed. 563; U. S. v. Fox, 95 U. S. 670, 24 
 L. Ed. 538 ; U. S. v. Steffens, 100 U. S. 82, 
 25 L. Ed. 550; Kilbourn v. Thompson, 103 
 U. S. 1GS. 26 L. Ed. 377; U. S. v. Harris, 
 106 U. S. 629. 1 Snp. Ct. 601, 27 L. Ed. 290; 
 U. S. v. Stanley, 109 U. S. 3, 3 Sup. Ct. IS, 
 27 L. Ed. 835 ; Boyd v. U. S., 116 U. S. 616, 
 6 Sup. Ct. 524, 29 L. Ed. 746; Pollock v. 
 Trust Co., 158 U. S. 601, 15 Sup. Ct. 912, 
 39 L. Ed. 1108; Employers' Liability Cases, 
 207 U. S. 463, 2S Sup. Ct. 141, 52 L. Ed. L".'7; 
 Adair v. U. S., 208 U. S. 161, 28 Sup. Ct. 
 277. 52 L. Ed. 436, 13 Ann. Cas. 764. And 
 the power has been exercised by that court 
 with respect to state or territorial statutes 
 in cases running into the hundreds. 
 
 The discussion of the subject was recent- 
 ly revived by an article on the Income Tax 
 Cases in 29 Am. L. Rev. 550. characterizing 
 the exercise of the power in question as 
 "without constitutional warrant" and •"bas- 
 ed only on the plausible sophistries of John 
 Marshall, and another by the same writer 
 on the case of Marbury v. Madison, char- 
 acterizing the doctrine as an "unconstitu- 
 tional usurpation of the lawmaking power 
 
 by the federal courts ;" 30 Am. L. Rev. 188. 
 The first of these was followed by an article 
 in the same periodical taking issue with it; 
 id. 55; and one in 34 Am. L. Reg. & Rev. 
 796. In the last the subject is thoroughly 
 reviewed from the earli. 
 the Income Tax cases, and it contains much 
 historical matter bearing upon thi 
 not before collected. See also 7 Harv. L. 
 Rev. 129; 19 Am. L. Rev. 177; Coxe on Ju- 
 dicial Power and Unconstitutional Lei 
 tion ; an elaborate discussion of the sub- 
 ject by Jno. R. Wilson, Pres't, Rep. Ind. St. 
 Bar Ass'n for 1899, p. 12. 
 
 In Judging what a constitution m< 
 it must be interpreted in the light and by 
 istance of the common law; Durham 
 v. Slate. 117 Ind. 177, L9 N. B. 327; Brewer. 
 J., in South Carolina ▼. U. S., 199 O. S. 437, 
 1 19, 26 Snp. Ct. 110, 50 L. Ed. 201, 4 Ann. Cas. 
 737; Matthews, J., in Smith v. Alabama, 
 124 U. S. 465, 478, 8 Sup. Ct. 564, 31 L. Ed. 
 508; Cray. J., in U. S. v. Wong Kim Ark, 
 L69 i . S. 649, 654, 18 Sup. Ct. 456, I- L. 
 Id. 890; Bradley, J., in Moore v. U. S., 91 
 U. S. 270, 27 1, 23 L. Ed. 346. 
 
 Certain fundamental principles govern the 
 courts in passing upon the validity of legis- 
 lative acts under the constitution; among 
 them are the following: 
 
 It is not usual as a mat tor of practice for 
 courts to pass upon constitutional quest inns 
 excepting before a full bench; Briscoe v. 
 Bank, 8 Pet (U. S.) 118, 8 L. I Id. 887. 
 
 It has been said that inferior courts will 
 not pass upon these questions ; Ortman v. 
 Greenman, 4 Mich. 291; but see, contra, 
 Cooley, Const. I.im. 198, n. ; Mayborry v. 
 Kelly, 1 Kan. 116. The contrary rule would 
 seem now to be well settled. 
 
 Courts will not draw into consideration 
 constitutional questions collaterally, or un- 
 less the consideration Is necessary to the 
 determination of the very point in contro- 
 versy; Hoover V. Wood, 9 Ind. 287 : Smith 
 v. Speed, 50 Ala. 277; Clarke v. City of 
 Rochester, 24 Barb. (N. Y.) 446; Parker v. 
 State. 5 Tex. App. 57'.> ; Slate v. Rich. 20 
 Mo. 393; Ireland v. Turnpike Co., 19 Ohio 
 St. 373. If a statute is valid on Its 
 the court will not look into evidence aliunde 
 to determine whether it violates the con- 
 stitution; Rankin v. Colgan, 92 CaL 605, 28 
 Pac. 673; but where it is plainly invalid for 
 other reasons, courts will not pass on its 
 constitutionality; State v. Price, 8 
 Cir. Ct R. 25, 4 O. C. D. 296; Smith v. 
 Speed. 50 Ala. 276; Welmer v. Bunbury, 30 
 Mich. 201; White v. Sett, 4 Barb. (N. Y.i 
 56. The question whether a legislative act 
 is constitutional never conies before a court 
 for decision as an abstract question, but can 
 only be considered when it arises in a suit 
 inter parte8. "The Berious duty of con- 
 demning state Legislation as constitutional 
 and void cannot be thrown upon this court, 
 except at the suit of parties directly and
 
 CONSTITUTIONAL 
 
 644 
 
 CONSTITUTIONAL 
 
 certainly effected thereby" ; Chad wick v. 
 Kelly, 187 U. S. 540, 23 Sup. Ct. 175, 47 L. 
 Ed. 293; Manley v. Park, 1S7 U. S. 547, 23 
 Sup. Ct. 208, 47 L. Ed. 296. As to the effect 
 of a decision in such a case upon the act it- 
 self, see infra. 
 
 To justify a court in declaring an act un- 
 constitutional, the case must be so clear that 
 no reasonable doubt can be said to exist ; 
 Blair v. Ridgely, 41 Mo. 63, 97 Am. Dec. 
 248; Smithee v. Garth, 33 Ark. 17; Peti- 
 tion of Wellington, 16 Pick. (Mass.) 95, 26 
 Am. Dec. 631; New York & O. M. R. Co. v. 
 Van Horn, 57 N. Y. 473 ; Kerrigan v. Force, 
 68 N. Y. 3S1; Gormley v. Taylor, 44 Ga. 
 76; State v. R. Co., 48 Mo. 468; see Lake 
 County v. 'Rollins, 130 U. S. 662, 9 Sup. Ct. 
 651, 32 L. Ed. 1060; Rich v. Flanders, 39 
 N. H. 304; Chicago, D. & V. R. R. Co. v. 
 Smith, 62 111. 268, 14 Am. Rep. 99; and every 
 intendment will be made in favor of the 
 constitutionality of the law; People v. 
 Rucker, 5 Colo. 455. "The principle is uni- 
 versal, that legislation, whether by congress 
 or by a state, must be taken to be valid, 
 unless the contrary is made clearly to ap- 
 pear ;" Reid v. Colorado, 187 U. S. 137, 23 
 Sup. Ct. 92, 47 L. Ed. 108; and in Min- 
 singer v. Rau, 236 Pa. 327, 84 Atl. 902, it 
 was said that when an act has been the re- 
 sult of deliberate thought of a commission 
 of prominent citizens, and has been passed 
 upon by two legislatures before final ap- 
 proval by the governor, it will not be set 
 aside as unconstitutional "unless the alleged 
 breaches of the fundamental law are so 
 glaring that there is no escape." 
 
 The courts cannot pronounce void an act 
 within the general scope of legislative pow- 
 ers, merely because contrary to natural 
 justice; Commissioners of Northumberland 
 County v. Chapman, 2 Rawle (Pa.) 74 ; Web- 
 er v. Reinhard, 73 Pa. 370, 13 Am. Rep. 747 ; 
 State v. Kruttschnitt, 4 Nev. 178; Hills v. 
 Chicago, 60 111. 86; Munn v. Illinois, 94 U. 
 S. 113, 24 L. Ed. 77 ; Martin v. Dix, 52 Miss. 
 53, 24 Am. Rep. 661; Maxwell v. Board, 
 119 Ind. 20, 23, 19 N. E. 617, 21 N. E. 453 ; 
 nor because it violates fundamental prin- 
 ciples of republican government, unless these 
 principles are protected by the constitution; 
 License Tax Cases, 5 Wall. (U. S.) 469, 18 
 L. Ed. 497 ; Perry v. Keene, 56 N. H. 514 ; 
 nor because it is supposed to conflict with 
 the spirit of the constitution; People v. 
 Fisher, 24 Wend. (N. Y.) 220; Walker v. 
 City of Cincinnati, 21 Ohio St. 14, 8 Am. 
 Rep. 24; Cooley, Const. Lim. (6th ed.) 204. 
 Any legislative act which does not encroach 
 upon the powers vested in the other depart- 
 ments of the government must be enforced 
 by the courts; Chicago, D. & V. R. R. Co. 
 v. Smith, 62 111. 268, 14 Am. Rep. 99; Fletch- 
 er v. Peck, 6 Cra. (U. S.) 128, 3 L. Ed. 162. 
 The courts of one state should not declare 
 unconstitutional and void a statute of an- 
 other state, whose courts had held it con- 
 
 stitutional; American Print Works v. Law- 
 rence, 23 N. J. L. 596, 57 Am. Dec. 420. 
 
 In the discussion of this subject expres- 
 sions have been used from time to time by 
 courts and legal authors which tend to 
 leave in the mind of the reader an impres- 
 sion that legislative acts have been set aside 
 upon some other or higher ground than that 
 of unconstitutionality. These expressions 
 will be found on examination either to con- 
 sist of dicta not only entirely obiter, but 
 usually not justified even as dicta by the 
 facts of the cases in which they occur, or 
 to be qualified by a context usually omitted 
 in citing them. A few of them will suffice 
 as examples. Judge Cooley, in the preface 
 to the second edition of his very learned 
 work on Constitutional Limitations, says: 
 "There are on all sides definite limitations 
 which circumscribe the legislative author- 
 ity, independent of the specific restraints 
 which the people impose by their state con- 
 stitutions." Again, in the work itself it is 
 said that it is not necessary that the courts, 
 before they can set aside a law as invalid 
 must be able to find some specific inhibi- 
 tion which has been disregarded, or some 
 specific command which has been disobeyed ; 
 Cooley, Const. Lim. 206. This language 
 has been quoted and interpreted to sus- 
 tain the idea sometimes hinted at rather 
 than seriously and argumentatively advanc- 
 ed, that there is some vague sense of jus- 
 tice and right — some higher law, it might 
 be termed — which may justify a court in 
 holding that a legislative act is invalid, in 
 the absence of an express or implied con- 
 stitutional objection. And it has been con- 
 sidered that the same view is maintained 
 by Judge Redfield in an article in 10 Am. 
 L. Reg. N. S. 161. So in an early case it 
 has been said that statutes against plain 
 and obvious principles of common right and 
 common reason are void; Ham v. McClaws, 
 1 Bay (S. C.) 98. So also Judge Story made 
 some forcible observations respecting "fun- 
 damental maxims of free government," to 
 disregard which no power "lurked under 
 any general grant of legislative authority," 
 Wilkinson v. Leland, 2 Pet. (U. S.) 627, 7 
 L. Ed. 542, 657, which have been referred to 
 as supporting the view under consideration. 
 Of the like character were the assertions of 
 Hosmer, C. J., that he could not agree "with 
 those judges who assert the omnipotence of 
 the legislature in all cases when the consti- 
 tution has not interposed an explicit re- 
 straint;" Inhabitants of Goshen v. Inhabit- 
 ants of Stonington, 4 Conn. 209, 225, 10 Am. 
 Dec. 121; and the language of a New York 
 court which declared that the vested rights 
 of the inhabitants of the city of New York 
 in certain public property rested "not mere- 
 ly upon the constitution, but upon the great 
 principles of eternal justice which lie at the 
 foundation of all free government;" Ben- 
 son v. City of New York, 10 Barb. (N. Y.)
 
 CONSTITUTIONAL 
 
 045 
 
 5TITUTIONAL 
 
 223, 244. Commenting on these and sim- 
 ilar statements, Mr. C. A. Kent, in an ar- 
 ticle in 11 Am. L. Keg. N. S. 734, says on 
 this subject: "The judiciary of a state can- 
 not declare a legislative act unconstitu- 
 tional, unless it conflict, expressly or by im- 
 plication, with some provision of the state 
 or of the federal constitution." See City of 
 Bvansville v. State, 118 Ind. 42G, 21 N. E. 
 267, 4 L. It. A. 93, note. A careful exami- 
 nation of these and other authorities relied 
 upon for the purpose stated will make it 
 apparent that there is no substantial basis 
 for a doctrine which will permit a court to 
 apply to a legislative act any test of valid- 
 ity other than that of its constitutionality. 
 When there is doubt as to the construction 
 of a law, courts may give to it one conso- 
 nant with rather than opposed to principles 
 of right and justice, and this was precisely 
 the scope of the South Carolina case. In 
 the New York case the great fundamental 
 principles need not have been referred to by 
 the court, for the reason that they were all 
 protected by the constitution, and in the 
 Connecticut case not only was no law held 
 invalid, but the sole question decided was 
 that an act declaring valid all marriages 
 previously celebrated by a clergyman of any 
 religious denomination according to its forms 
 was constitutional. The note by Judge Red- 
 field, referred to, Is directed only to show 
 that there are limitations to the legislative 
 power, and that it does not embrace "ju- 
 dicial decrees or despotic orders or assess- 
 ments such as a military conqueror might 
 make," under the guise of taxation. But it 
 will be found that the cases put by him, as 
 well as those used by Judge Cooley, to illus- 
 trate the expression quoted from his work, 
 and indeed all of those which have given 
 rise to the theory under consideration, are 
 provided for in the American constitutions 
 either by express prohibitions and declara- 
 tions of rights, or by the distribution of the 
 powers of government and the right of the 
 judicial branch to determine finally wheth- 
 er a given act is an exercise of legislative 
 power. The whole subject is thoroughly dis- 
 cussed by Judge Cooley in his Constitu- 
 tional Limitations, Gth ed., and upon full 
 consideration of the authorities he concludes 
 that a court cannot "declare a statute un- 
 constitutional and void, solely on the - 
 of unjust and oppressive provisions, or be- 
 cause it is supposed to violate the natural. 
 social, or political rights of the citizen, un- 
 less it be shown that such injustice is pro- 
 hibited or such rights guaranteed or pro- 
 tected by the constitution (p. lit!) ; . 
 that except when the constitution has im- 
 posed limits upon the legislative power, it 
 must be considered as practically absolute, 
 whether it operate according to natural jus- 
 tice or not in any particular case" (p. 201), 
 nor because of "apparent injustice or im- 
 policy," or because "they appear to the 
 
 minds of the judges to violate fundamental 
 principles of republican government, a 
 it shall be found that those principles are 
 placed beyond legislative encroachment by 
 the constitution" (p. 202). See al 
 Dwar. stais. 62. 
 
 "There is no room in our constitutional 
 theory for any transcendent rigbl or in- 
 stinct of nature, except as guar 
 the constitution"; Henry v. Cherry & Webb, 
 30 R. I. 13, :;i, 73 At:. :>7. 24 L. R. a. (N. 8.) 
 091, 13G Am. St. Rep. 92S, 18 Ann. 
 1006; State v. McCrillis. 28 R. I. It;:.. <;•; 
 Atl. 301. 9 L. R. A. (X. S.) 635, 13 Am. 
 701; State v. Ins. Co., 73 Conn. 255, 47 AH. 
 299, 57 L. R. A. 481, denying the existence 
 of "the vague notion of a higher law." The 
 courts are not guardians of the rights of 
 the people except as these rights are se- 
 cured by some constitutional provision ; 
 Cooley, Const. Lim. 201. And see a thorough 
 discussion of the subject of "Implied Limi- 
 tations upon the Exercise of the Legislative 
 Power" by R. C. Dale, Am. Bar. Ass'n 
 Rep. (1901) 294. 
 
 A court cannot interfere merely because 
 it does not consider that the circumstl 
 at the time justified the action of the 
 lature; there must be a clear unmistakable 
 infringement of rights secured by the funda- 
 mental law; Otis v. Parker, 187 U. S. 
 23 Sup. Ct 1GS, 47 L. Ed. 323, where an act 
 forbidding sales of stock on margins was 
 held not unconstitutional. By way of il- 
 lustratiou, Holmes, J., said that no court 
 would declare usury laws or Sunday laws 
 unconstitutional, though every member of 
 it believed such law to be unwise or us. 
 wmile on the other hand wagers may be de- 
 clared illegal without a statute, or lotteries 
 under one, though formerly thought par- 
 donable. 
 
 In the consideration of these ques 
 the distinction between the federal and state 
 constitutions must be borne in mind: 
 gress can pass no laws but such as the 
 constitution authorizes expressly or by clear 
 implication; while the state legislature has 
 jurisdiction of all subjects on which its leg- 
 islation is not prohibited." Cooley, Const 
 Lim. 210; see Weister v. Hade, 52 Pa. 477: 
 Giozza v. Tiernan, 14S U. S. 657, 13 Sup. 
 Ct. 721, 37 L. Ed. 599. But it has been held 
 that the decision of congress that certain 
 claims upon the public treasury are found- 
 ed upon moral and honorable obligations 
 and upon principles of right and Justice,. 
 and that public money be appropriated in 
 payment of such claims is constitutional, 
 and can rarely, it" ever, be the subject of re- 
 view by the judicial branch of the govern- 
 ment; U. S. v. Realty Co., 163 I". S. 427, K'> 
 Sup. Ct. 1120. 41 L. Ed. 215. 
 
 No one can attack as unconstitutional an 
 independent provision of a law. who has 
 no interest in and is not affected by such 
 provision; State v. Becker, 3 S. D. 29, 51
 
 CONSTITUTIONAL 
 
 646 
 
 CONSTITUTIONAL 
 
 N. W. 1018; Farnenian v. Cemetery Ass'n, 
 135 Ind. 344, 35 N. E. 271; Burnside v. 
 County Court, 86 Ky. 423, 6 S. W. 276 ; Jones 
 v. Black, 48 Ala. 540; Moore v. City of 
 New Orleans, 32 La. Ann. 726; People v. 
 R. Co., 89 N. Y. 75. 
 
 The judiciary of the United States should 
 not strike down a legislative enactment 
 of a state, especially if it has direct con- 
 nection with the social order, health and 
 morals of its people, unless such legisla- 
 tion plainly and palpably violates some 
 right granted or secured by the national 
 constitution, or encroaches upon the au- 
 thority delegated to the United States for 
 the attainment of objects of national con- 
 cern; Plumley v. Massachusetts, 155 U. S. 
 461, 15 Sup. Ct. 154, 39 L. Ed. 223. 
 
 An act adjudged to be unconstitutional is 
 as if it had never been enacted ; Sumner 
 v. Beeler, 50 Ind. 341, 19 Am. Rep. 718; 
 City of Detroit v. Martin, 34 Mich. 170, 22 
 Am. Rep. 512; Woolsey v. Dodge, 6 McLean, 
 142, Fed. Cas. No.- 18,032 ; Clark v. Miller, 
 54 N. Y. 52S; Norton v. Shelby County, 118 
 U. S. 425, 6 Sup. Ct. 1121, 30 L. Ed. 178; 
 Poindexter v. Greenhow, 114 U. S. 270, 5 
 Sup. Ct. 903, 962, 29 L. Ed. 185; though it 
 was held in Com. v. McCombs, 56 Pa. 436, 
 that an officer acting under an unconstitu- 
 tional law was a de facto officer. An un- 
 constitutional law must be deemed to have 
 the force of law so far as to protect an of- 
 ficer acting under it, until it is declared 
 void; Sessums v. Botts, 34 Tex. 335; but 
 see Astrom v. Hammond, 3 McLean, 107, 
 Fed. Cas. No. 596; Poindexter v. Greenhow, 
 114 U. S. 2S8, 5 Sup. Ct. 903, 962, 29 L. Ed. 
 185. If a decision adjudging a statute un- 
 constitutional is afterwards overruled, the 
 statute is considered to have been in force 
 during the whole period since its enactment ; 
 Pierce v. Pierce, 46 Ind. 86 ; but see Menges 
 v. Dentler, 33 Pa. 495, 75 Am. Dec. 616; 
 Geddes v. Brown, 5 Phila. (Pa.) 180; Gelp- 
 cke v. Dubuque, 9 Am. L. Rev. 402. An 
 unconstitutional act can under no circum- 
 stances be validated by the legislature ; 
 State v. Whitesides, 30 S. C. 579, 9 S. E. 
 661, 3 L. R. A. 777. 
 
 See 11 Am. L. Reg. N. S. 730 ; 9 id. 585. 
 
 The power of the courts to declare legis- 
 lative acts unconstitutional is the subject of 
 an extended article by Wm, M. Meigs, in 
 40 Am. L. Rev. 641, which in a sense con- 
 tinues a previous article in 19 Am. L. Rev. 
 175. Mr. Meigs elaborates the argument on 
 the subject, particularly with reference to 
 the early decisions and the congressional 
 debates on the repeal of the Judiciary Act, 
 in 1802, of which he declares his ignorance 
 at the time he wrote his first article. He 
 cites five cases in which the right was exer- 
 cised and two others in which it was ap- 
 proved prior to 1800, and gives an interest- 
 ing history of the earlier development of 
 
 the subject, which has been less discussed in 
 connection with it. 
 
 In passing upon an act the court can 
 only take the facts before it ; in this way it 
 may sometimes enforce laws which would 
 be declared invalid if attacked in a differ- 
 ent manner ; Quong Wing v. Kirkendall, 223 
 U. S. 59, 32 Sup. Ct. 192, 56 L. Ed. 350. 
 
 As to the constitutionality of various 
 classes of statutes, see the several titles of 
 constitutional law, including: Arms; Bonds; 
 Bridges; Civil Rights; Commerce; Due 
 Process of Law; Eminent Domain; Ex 
 Post Facto Laws; Executive Power; Ex- 
 tradition; Federal Question; Foreign 
 Judgments; Full Faith and Credit; Ha- 
 beas Corpus; Impairing Obligation of 
 Contracts; Interstate Commerce; Judicial 
 Power; Judiciary; Liquor Laws; Orig- 
 inal Packages; Police Power; Privileg- 
 es and Immunities; Retroactive Laws; 
 Special Legislation; Statutes; Taxation; 
 Title; United States Courts. 
 
 See Thorpe, Amer. Charters, Constitutions 
 and Organic Laws, for the text of state 
 constitutions. 
 
 CONSTITUTIONAL CONVENTION. A 
 
 convention summoned by the legislature to 
 draw up a new, or amend an old constitu- 
 tion. It is ancillary and subservient to the 
 fundamental law, not hostile and paramount 
 thereto. Jameson, Const. Conv. § 11. It is 
 bound by the act creating it; Wood's Ap- 
 peal, 75 Pa. 59. See Jameson, Const. Conv. 
 §§ 376-418. The result of its labors, when 
 adopted, must be submitted to a vote of the 
 people, before it can become effective ; Jame- 
 son, § 479 et seq. Contra, if the legislature 
 does not so provide in the act calling the 
 convention; State v. Neal, 42 Mo. 119; 
 Sproule v. Fredericks, 69 Miss. 898, 11 South. 
 472 ; in such case it need not be submitted 
 to vote ; Sproule v. Fredericks, 69 Miss. S98, 
 11 South. 472. 
 
 For a complete list of Constitutional con- 
 ventions held in the United States, to 1S76, 
 see Jameson, Const. Conv. Appendix B, and 
 see the work generally for a full discussion 
 of the interesting questions which have aris- 
 en respecting the powers and duties of such 
 bodies. See State. 
 
 CONSTITUTIONS OF CLARENDON. See 
 
 Clarendon. 
 
 CONSTITUTIONS OF THE FOREST. 
 
 See Forest Laws ; Charta de Foresta. 
 
 CONSTITUTOR. In Civil Law. He who 
 
 promised by a simple pact to pay the debt 
 of another; and this is always a principal 
 obligation. Inst 4. 6. 9. 
 
 CONSTITUTUM (Lat). An agreement 
 to pay a subsisting debt which exists with- 
 out any stipulation, whether of the promisor 
 or another party. It differs from a stipu- 
 lation in that it must be for an existing 
 debt. Du Cange.
 
 CONSTITUTUM 
 
 647 
 
 CONSTRUCTIVE 
 
 A. day appointed for any purpose. A form 
 of appeal. Calvlnus, Lex. 
 
 CONSTRAINT. The word constraint is 
 equivalent to the word restraint. Edmond- 
 son v. Harris, 2 Tenn. Ch. 433. 
 
 CONSTRUCTION (Lat construere, to put 
 together). In Practice. Determining the 
 meaning and application as to the case in 
 question of the provisions of a constitution, 
 statute, will, or other instrument, or of an 
 oral agreement. 
 
 Drawing conclusions respecting subjects 
 that lie beyond the direct expression of the 
 term. Lieber, Leg. & PoL Herm. 20. 
 
 Construction and Interpretation are generally 
 used by writers on legal subjects, and by the courts, 
 as synonymous, sonu times one term being employed 
 and sometimes the other. Lieber, in his Legal and 
 Political Hermeneutics, distinguishes between the 
 two, considering the province of interpretation as 
 limited to the written text, while construction goes 
 beyond, and Includes cases where texts interpreted 
 and to be construed are to be reconciled with rules 
 of law or with compacts or constitutions of supe- 
 rior authority, or where we reason from the aim or 
 object of an instrument or determine its application 
 to cases unprovided for; C. 1, § 8 ; c. 3, § 2 ; c. 4; 
 c. 5. Dr. Wharton (2 Contracts, c. 19) adopts this 
 view. Leake (Digest of Contracts 217) and Prof. 
 James B. Thayer (Evidence 411) consider them as 
 synonymous. Black (Interpretation of Laws 1) 
 makes some distinction between the terms. 
 
 Legal rules of construction so called, sug- 
 gest natural methods of finding and weigh- 
 ing evidence and ascertaining the fact of 
 intention, but do not determine the weight 
 which the evidence has in mind, and do not 
 establish a conclusion at variance with that 
 reached by a due consideration of all the 
 competent proof ; Edes v. Boardman, 58 N. 
 H. 5S0, 592. 
 
 A strict construction is one which limits 
 the application of the provisions of the in- 
 strument or agreement to cases clearly de- 
 scribed by the words used. It is called, also, 
 literal. 
 
 A liberal construction is one by which the 
 letter is enlarged or restrained so as more 
 effectually to accomplish the end in view. 
 It is called, also, equitable. 
 
 The terms strict and liberal are applied mainly 
 In the construction of statutes; and the question 
 of strictness or liberality is considered always with 
 reference to the statute itself, according to whether 
 Its application is confined to those cases clearly 
 within the legitimate import of the words used, or 
 Is extended beyond though not in violation of (ultra 
 sed non contra) the strict letter. In contracts, a 
 strict construction as to one party would be liberal 
 as to the other. 
 
 One leading principle of construction is 
 to carry out the intention of the authors of 
 or parties to the instrument or agreement, 
 so far as it can be done without infringing 
 upon any law of superior binding force. 
 
 The subject will be treated under Intek- 
 
 PRETATION. 
 
 CONSTRUCTIVE. That which amounts 
 in the view of the law to an act, although 
 the act itself is not necessarily really per- 
 formed. For words under this head, such 
 
 as constructive fraud, etc., see the various 
 titles Fraud; Notice; Trust; etc. 
 
 CONSUETUDINARIUS (Lat.). In Old 
 English Law. A ritual or book containing 
 the rites and forms of divine uliices or the 
 ma of abbeys and 
 
 A record of the consuetudines (customs). 
 Blount; Whishaw. 
 
 CONSUETUDINARY LAW. Customary or 
 traditional law. 
 
 CONSUETUDINES FEUDORUM (Lat 
 feudal customs). A compilation of the law 
 of feuds or fiefs in Lombardy, made A. D. 
 1170. 
 
 It is called, also, the Book of Fiefs, and is of 
 great and generally received authority. The com- 
 pilation is said to have been ordered by Frederic 
 Barbarossa, Erskine, Inst. 2. 3. 5, and to have been 
 made by two Milanese lawyers, Spelman, Gloss., but 
 this Is uncertain. It is commonly annexed to the 
 Corpus Juris Civilis, and is easily accessible. See 
 3 Kent, Coram., 10th ed. 6C5, n. ; , Spelman, Gloss. 
 
 C0NSUETUD0 (Lat.) A custom; an es- 
 tablished usage or practice. Co. Litt. 58. 
 Tolls; duties; taxes. Co. Litt. 58 b. 
 
 This use of consuetudo is not correct: custuma is 
 the proper word to denote duties, etc. 1 Shars. Bla. 
 Com. 313, n. An action formerly lay for the re- 
 covery of customs due, which was commenced by a 
 writ de consuctudinibus et scrvitiis (of customs and 
 services). This is said by Blount to be "a writ of 
 right close which lies against the tenant that deforc- 
 eth the lord of the rent and services due him." 
 Blount; Old Nat. Brev. 77; Fltzh. Nat. Brev. 151. 
 
 There were various customs: as, consuetudo An- 
 glicana (custom of England), consuetudo curice 
 (practice of a court), consuetudo mercatorum (cus- 
 tom of merchants). See Custom; Lex; Lex et 
 Consuetudo Regni Nostri ; Leges kt Consuetu- 
 dines Regni. 
 
 CONSUL. A commercial agent appointed 
 by a government to reside in a seaport or 
 other town of a foreign country, and com- 
 missioned to watch over the commercial 
 rights and privileges of the nation deputing 
 him. The term includes consuls-general and 
 vice-consuls. Rev. Stat. § 4130. 
 
 A vice-consul is one acting in the place of 
 a consul. 
 
 Among the Romans, consuls were chief magis- 
 trates who were annually elected by the people, and 
 were invested with powers and functions similar to 
 those of kings. During the middle ages the term 
 consul was sometimes applied to ordinary judges; 
 and, in the Levant, maritime judges are yet called 
 consuls. 1 Boulay Paty, Dr. Mar. tit. I'rtl. s. 2, p. 
 57. Officers with powers and duties corresponding 
 to those of modern consuls were employed by the 
 ancient Athenians, who had them stationed in com- 
 mercial ports with which they traded. 3 St. John, 
 Mann, and Cus. of Auc. Greece 283. They were 
 appointed about the middle of the twelfth century 
 by the maritime states of the Mediterranean ; and 
 their numbers have Increased greatly with the 
 extension of modern commerce. 
 
 As a general rule, consuls represent the 
 subjects or citizens of their own cation not 
 otherwise represented; Bee 209; The Lon- 
 don Packet, l Mas. 14, Fed. Cas. No. 8,474; 
 The Anne, 3 Wheat. (U. S.) 435, 4 L. Ed. 
 428; The Antelope, 10 Wheat (U. S.) 66, 
 6 L. Ed. 268. Their duties and privileges 
 are now generally limited, defined, and se-
 
 CONSUL 
 
 648 
 
 CONSUL 
 
 cured by commercial treaties, or by the 
 laws of the countries they represent. They 
 are not strictly judicial officers; 3 Taunt. 
 102; and have no judicial powers except 
 those which may be conferred by treaty 
 and statutes. See The William Harris, Ware 
 367, Fed. Cas. No. 17,695; Dainese v. Hale, 
 91 U. S. 13, 23 L. Ed. 190. 
 
 American consuls are nominated by the 
 president and confirmed by the senate. U. S. 
 Const, art. 2, § 2. Upon the exercise of this 
 power of appointment by the president, con- 
 gress can place no limitation ; Foote v. U. S., 
 23 Ct. Cls. 443. 
 
 The consular system was reorganized by 
 Act of April 5, 1906. Seven classes of con- 
 suls-general were created with salaries run- 
 ning from $12,000 to $3,000 ; nine classes of 
 consuls, with salaries running from $8,000 
 to $2,000. The offices of vice-consul-general, 
 deputy-consul-general, vice-consul and depu- 
 ty-consul were continued, and also consular 
 agents. The office of commercial agent was 
 abolished. No cdnsul-general, consul, or 
 consular agent, receiving a salary of $1,000 
 or over shall transact business as a mer- 
 chant, manufacturer, broker, or other trad- 
 er, or as a clerk for such, within the limits 
 of his jurisdiction, nor practice as a lawyer. 
 They are required to perform many du- 
 ties in relation to the commerce of the Unit- 
 ed States and towards masters of ships, 
 mariners, and other citizens of the United 
 States. Among these are the authority to 
 receive protests or declarations which cap- 
 tains, masters, crews, passengers, merchants, 
 and others make relating to American com- 
 merce ; they are required to administer on 
 the estates of American citizens dying with- 
 in their consular jurisdiction and leaving 
 no legal representatives, when the laws of 
 the country permit it; see 2 Curt. Eccl. 241; 
 to take charge of and secure the effects of 
 stranded American vessels in the absence 
 of the master, owner, or consignee; to settle 
 disputes between masters of vessels and 
 the mariners; to provide for destitute sea- 
 men within their consulate, and send them 
 to the United States at the public expense. 
 See R. S. § 1674 et seq. Also to hear com- 
 plaints of ill-treatment of seamen; The Wel- 
 haven, 95 Fed. 80. The consuls are also 
 authorized to make certificates of certain 
 facts in certain cases, which receive faith 
 and credit in the courts of the United 
 States; Potter v. Ins. Co., 3 Sumn. 27, Fed. 
 Cas. No. 11,335. But these consular certif- 
 icates are not to be received in evidence, 
 unless they are given in the performance of 
 a consular function; Church v. Hubbart, 2 
 Cra. (U. S.) 187, 2 L. Ed. 249; Catlett v. Ins. 
 Co., 1 Paine 594, Fed. Cas. No. 2,517 ; U. S. v. 
 Mitchell, 2 Wash. C. C. 478, Fed. Cas. No. 
 15,791; Foster v. Davis, 1 Litt. (Ky.) 71; 
 nor are they evidence, between persons not 
 parties or privies to the transaction, of any 
 fact, unless, either expressly or impliedly, 
 
 made so by statute; Levy v. Burley, 2 Sumn. 
 355, Fed. Cas. No. 8,300; Catlett v. Ins. Co., 
 1 Paine 594, Fed. Cas. No. 2,517; Brown v. 
 The Independence, 2 Crabbe 54, Fed. Cas. 
 No. 2,014. 
 
 Their rights are to be protected agreeably 
 to the laws of nations, and of the treaties 
 made between the United States and the 
 nation to which they are sent. 
 
 A consul is liable for negligence or omis- 
 sion to perform seasonably the duties im- 
 posed upon him, or for any malversation or 
 abuse of power, to any injured person, for 
 all damages occasioned thereby; and for 
 all malversation and corrupt conduct in 
 office a consul is liable to indictment. 
 
 Of foreign consuls. Before a consul can 
 perform any duties in the United States, 
 he must be recognized by the president of 
 the United States, and have received his 
 exequatur. 
 
 A consul is clothed only with authority for 
 commercial purposes ; he has a right to in- 
 terpose claims for the restitution of property 
 belonging to the citizens of the country he 
 represents; The Adolph, 1 Curt. 87, Fed. 
 Cas. No. S6; The Loudon Packet, 1 Max. 14, 
 Fed. Cas. No. 8,474; Gernon v. Cochran, 
 Bee 209, Fed. Cas. No. 5,368; The Bello 
 Corrunes, 6 Wheat. (U. S.) 152, 5 L. Ed. 229; 
 but he is not to be considered as a minister 
 or diplomatic agent, intrusted by virtue of 
 his office to represent his country in negotia- 
 tions with foreign states; The Anne, 3 
 Wheat. (U. S.) 435, 4 L. Ed. 428. They do 
 not represent the country, but are subject 
 to the laws of the country where they re- 
 side; U. S. v. Wong Kim Ark, 169 U. S. 
 678, 18 Sup. Ct. 456, 42 L. Ed. 890. 
 
 Consuls are generally invested with spe- 
 cial privileges by local laws and usages, or 
 by international compacts; but by the laws 
 of nations they are not entitled to the pe- 
 culiar immunities of ambassadors. In civil 
 and criminal cases they are subject to the 
 local laws, in the same manner with other 
 foreign residents owing a temporary allegi- 
 ance to the state; 1 Op. Atty. Gen. 45, 302; 
 Com. v. Kosloff, 5 S. & R. (Pa.) 546; 3 M. 
 & S. 2S4; U. S. v. Ravara, 2 Dall. (U. S.) 
 297, 1 L. Ed. 3S8; Hall, Int. L. 2S9 ; Wic- 
 quefort, Be VAmbassadeur, liv. 1, § 5; Byn- 
 kershoek, cap. 10; Marten, Droit des Gens, 
 liv. 4, c. 3, § 148. 
 
 R. S. § 687, gives to the supreme court 
 original but not exclusive jurisdiction of all 
 suits in which a consul or vice-consul shall 
 be a party. See Mannhardt v. Soderstrom, 
 1 Binn. (Pa.) 143; State v. De La Foret, 2 N. 
 
 6 M'C. (S. C.) 217; Hall v. Young, 3 Pick. 
 (Mass.) 80, 15 Am. Dec. ISO ; Sartori v. Ham- 
 ilton, 13 N. J. L. 107; Valarino v. Thompson, 
 
 7 N. Y. 576. 
 
 His functions may be suspended at any 
 time by the government to which he is sent, 
 and his exequatur revoked. In general, a 
 consul is not liable personally on a contract.
 
 CONSUL 
 
 640 
 
 CONSULAR COURTS 
 
 made in his official capacity on account of 
 his government; Jones v. Le Tombe, 3 Dall. 
 (U. S.) 384, 1 L. Ed. 647. A vice-consul of a 
 foreign nation who possesses an unrevoked 
 exequatur issued by the President of the 
 United States, must still be recognized by 
 the courts as the accredited representative 
 of his country and entitled to all its privi- 
 leges, although the government which sent 
 him has been overthrown and a revolution- 
 ary government established in its place; U. 
 S. v. Trumbull, 48 Fed. 94. 
 
 A consul-general is a consul within an act 
 concerning acknowledgments of real estate 
 instruments; Linton v. Ins. Co., 104 Fed. 5S4, 
 44 C. C. A. 54. 
 
 See Consular Courts. 
 
 CONSULAR COURTS. By Act of June 
 22, I860, ministers and consuls are invested 
 with judicial authority in China, Japan. Si- 
 am, Egypt and Madagascar, to try and to 
 sentence "all citizens of the United States 
 charged with offences against law committed 
 in such countries" and to issue process in 
 execution of the sentence, and with juris- 
 diction in civil cases "in matter of contract" 
 embracing "all controversies between citi- 
 zens of the United States, or others," as 
 provided by treaties. This jurisdiction is 
 exercised in conformity with the laws of 
 tin' United States as to its citizens, and as to 
 others to the extent that the treaties re- 
 quire. If such laws are not adapted to the 
 object or are deficient in suitable remedies, 
 "common law and equity and admiralty 
 rules" are to be applied. If none of the 
 above provide sufficient remedies, then the 
 ministers shall, by decrees and regulations 
 having the force of law, supply the deficien- 
 cies. 
 
 A consul alone may decide all cases when 
 the fine does not exceed $500, or the im- 
 prisonment 90 days; but if the former ex- 
 ceeds $100 or the latter 60 days, an appeal 
 on the law and facts lies to the minister. 
 
 If there be no minister in any such coun- 
 try, his duties devolve upon the Secretary 
 of State. 
 
 The act is extended to Persia as to dis- 
 putes between United States citizens ; and 
 by amendment (June 14, 1S78) to Tripoli, 
 Tunis, Morocco, Muscat and the Samoan 
 Islands and to countries with which an ap- 
 plicable treaty shall be negotiated. 
 
 In China and Japan (Act of July 1, 1S70), 
 an appeal on the law and fact lies when 
 the matter in dispute exceeds $500 and does 
 not exceed $2,500, exclusive of costs ; on final 
 judgment exceeding $2,500, an appeal lies 
 to the district court for the district of Cali- 
 fornia; there is a like appeal by a person 
 charged with crime. 
 
 By treaty between the United States and 
 Japan, Nov. 22, 1894, it was provided that 
 on July 17, 1899, consular jurisdiction in 
 Japan should "absolutely and without notice 
 
 cease and determine." 2 Moore, Int. Dig. 
 659. 
 
 . By Act of March 23, 1S74, the president 
 may suspend the Act of June 22, I860, as 
 to the territory of the Sublime Porte and 
 Egypt, or either of them, upon the organiza- 
 tion of judicial tribunals by the Ott 
 Government and accept such tribunals. See 
 Mixkij Tan 
 
 In China (Act of June 30, 1906), consular 
 courts have the above jurisdiction in civil 
 cases where the sum or value of the prop- 
 erty does not exceed (500, and in criminal 
 cases where the punishment cannot e 
 sii in tine «.!■ 60 days imprisonment; all oth- 
 er jurisdiction is given by that act to the 
 d states Court for China." See 
 China. The vice-consul at Sham-dial (Ad 
 of March 2, 1909) exercises such judicial 
 functions in the place of the consul-general. 
 
 The judicial system of the United States 
 in China was held to be constitutional in 
 Forbes v. Scanned, 13 Cal. 242. 
 
 By Act of Juno '-2, lsuo, insurrection 
 against any of the countries named, and 
 murder, are punishable with death. Such 
 cases, and also felonies, are tried before the 
 minister. 
 
 In criminal cases of legal difficulty, or 
 when the consul deems that severer punish- 
 ments than those specified will be required, 
 he shall summon not exceeding four citi- 
 zens of the United States, and in capital 
 cases not less than four, to sit with him in 
 the trial. The consul may alone decide civil 
 cases when the damages demanded do not 
 exceed $500, but if he is of opinion that any 
 such cases involve legal perplexities, or 
 such damages exceed $500, he shall call in 
 two or three citizens of the United SI 
 to sit with him. If all agree, the judgment 
 is final. If any associate differs from the 
 consul, either party may appeal to the min- 
 ister, but if there be no appeal, the decision 
 of the consul is final. 
 
 The constitutional guaranty of trial by 
 jury and indictment by grand jury does not 
 apply to consular courts in trying offenses 
 committed in a foreign country. In re 
 Ross. 140 U. S. 453, 11 Sup. Ct. 897, 35 L. 
 Ed. 581. The jurisdiction of home courts 
 over offenses on the high seas docs i. 
 elude the jurisdiction of a consular court 
 if the offender is not taken to the United 
 States; id. 
 
 CONSULAR OFFICER. See Consul. 
 
 CONSULTATION. The name of a writ 
 whereby a cause, being formerly removed 
 by prohibition out of an inferior court into 
 some of the king's courts in Westminster, is 
 returned thither again; fur, it' the jmL 
 the superior court, comparing the proceed- 
 ings with the suggestion of the party, find 
 the suggestion false or not proved, and that, 
 therefore, the cause was wrongfully called 
 from the inferior court, then, upon consul-
 
 CONSULTATION 
 
 650 
 
 CONTAGIOUS DISEASES 
 
 tatlon and deliberation, they decree it to be 
 returned, whereupon this writ issues. Ter- 
 mes de la Ley; 3 Bla. Com. 114. 
 
 In French Law. The opinion of counsel 
 upon a point of law submitted to tbem. 
 
 CONSUMMATE. Complete; finished; en- 
 tire. 
 
 A marriage is said to be consummate. A right of 
 dower is inchoate when coverture and seisin concur, 
 consummate upon the husband's death. 1 Washb. 
 R. P. 250, 251. A tenancy by the curtesy is initiate 
 upon the birth of issue, and consummate upon the 
 death of the wile. 1 Washb. R. P. 140; Watson v. 
 Watson, 13 Conn. 83; Witham v. Perkins, 2 Greenl. 
 (Me.) 400; 2 Bla. Com. 128. 
 
 A contract is said to be consummated when every- 
 thing to be done in relation to making it has been 
 accomplished. It is frequently of great importance 
 to know when a contract has been consummated, in 
 order to ascertain the rights of the parties, particu- 
 larly in the contract of sale. See Delivery, where 
 the subject is more fully examined. It is also some- 
 times of consequence to ascertain where the con- 
 summation of the contract took place, in order to 
 decide by what law it is to be governed. See Con- 
 flict of Laws; Contract; Lex Loci. 
 
 CONTAGIOUS DISEASES. Diseases 
 
 which are capable of being transmitted by 
 mediate or immediate contact. 
 
 Persons sick of such disorders may re- 
 main in their own houses; Boom v. City of 
 Utica, 2 Barb. (N. Y.) 104; but are indict- 
 able for exposing themselves in a public 
 place endangering the public. See 4 M. & 
 S. 73, 272. Nuisances wbich produce such 
 diseases may be abated; Meeker v. Van 
 Rensselaer, 15 Wend. (N. Y.) 397. See Peo- 
 ple v. Townsend, 3 Hill (N. Y.) 479; Barclay 
 v. Com., 25 Pa. 503, 64 Am. Dec. 715 ; Cald- 
 well v. Bridal, 48 la. 15 ; and a right of ac- 
 tion may also be had for injury done to 
 health; Jarvis v. Ry. Co., 26 Mo. App. 253; 
 Fow v. Roberts, 108 Pa. 489. 
 
 A landlord is liable in damages for rent- 
 ing a property knowing it to be contaminat- 
 ed witb an infectious disease ; Snyder v. Gor- 
 den, 12 N. Y. St. Rep. 556; under the police 
 power, cities and towns may adopt ordinanc- 
 es for tbe preservation and promotion of the 
 health of the inhabitants; Com. v. Cutter, 
 156 Mass. 52, 29 N. E. 1146; Com. v. Hub- 
 ley, 172 Mass. 58, 51 N. E. 448, 42 L. R. 
 A. 403, 70 Am. St. Rep. 242; Borden's Con- 
 densed Milk Co. v. Board of Health, 81 
 N. J. L. 218, 80 Atl. 30. It is not uncon- 
 stitutional, as a deprivation of property 
 without due process of law, to pass an or- 
 dinance directing a milk inspector to de- 
 stroy all milk below a certain standard of 
 purity without notice to the owner; Blazier 
 v. Miller, 10 Hun (N. Y.) 435; nor is an act 
 unconstitutional as denying equal protection 
 of the laws which gives a state board of 
 health authority to prevent the landing of 
 passengers and goods from a ship to a lo- 
 cality infected by contagious disease; Com- 
 pagnie Francaise de Navigation a Vapeur 
 v. Board of Health, 186 U. S. 380, 22 Sup. 
 Ct 811, 46 L. Ed. 1209, affirming 51 La. 
 Ann. 645, 25 South. 591, 56 L. R. A. 795, 72 
 
 Am. St. Rep. 458; vaccination laws making 
 vaccination of children a coudition of their 
 attendance in public schools are not urif- 
 constitutional ; Viemeister v. White, 88 App. 
 Div. 44, 84 N. Y. Supp. 712, affirmed 179 
 N. Y. 235, 72 N. E. 97, 70 L. R. A. 796, 103 
 Am. St. Rep. 859, 1 Ann. Cas. 334. 
 
 A state law may also prohibit the trans- 
 portation of cattle from another state, ex- 
 cept under certain conditions requiring a 
 certificate of health of such cattle, and it 
 is not an interference with interstate com- 
 merce; Reid v. Colorado, 187 U. S. 137, 23 
 Sup. Ct 92, 47 L. Ed. 108; St. Louis S. Ry. 
 Co. v. Smith, 20 Tex. Civ. App. 451, 49 S. W. 
 627, affirmed Smith v. Ry. Co., 181 U. S. 
 248, 21 Sup. Ct. 603, 45 L. Ed. 847; and so 
 with regard to sheep; State v. Rasmussen, 
 7 Idaho 1, 59 Pac. 933, 52 L. R. A. 78, 97 
 Am. St. Rep. 234, affirmed in Rasmussen 
 v. Idaho, 181 U. S. 198, 21 Sup. Ct. 594, 45 
 L. Ed. 820. Sleeping car companies may 
 exclude from their cars insane persons and 
 persons afflicted with contagious or infec- 
 tious diseases ; Pullman Car Co. v. Krauss, 
 145 Ala. 395, 40 South. 398, 4 L. R. A. (N. 
 S.) 103, 8 Ann. Cas. 218. 
 
 See Health. 
 
 CONTANGO. A double bargain, consist- 
 of a sale for cash of stock previously bought 
 which the broker does not wish to carry, 
 and a repurchase for the re-settlement two 
 weeks ahead of the same stock at the same 
 price as at the sale plus interest accrued up 
 to the date of that settlement. The rate of 
 interest is called a "contango" and contango 
 days are the two days during the settlement 
 when these arrangements are in effect. 
 
 C0NTEK (L. Fr.). A contest, dispute, 
 disturbance, opposition. Britt. c. 42. 
 
 CONTEMPLATION OF BANKRUPTCY. 
 
 An intention or expectation of breaking up 
 business or applying to be decreed a bank- 
 rupt. Atkinson v. Bank, Crabbe 529, Fed. 
 Cas. No. 609; 5 B. & Ad. 289; 4 Bing. 20; 
 McLean v. Bank, 3 McLean 587, Fed. Cas. 
 No. 8,888. 
 
 Contemplation of a state of bankruptcy 
 or a known insolvency and inability to carry 
 on business, and a stoppage of business. 
 Story, J., Hutchins v. Taylor, 5 Law Rep. 
 295, 299, Fed. Cas. No. 6.953. See Everett 
 v. Stone, 3 Sto. 446, Fed. Cas. No. 4,577. 
 
 Something more is meant by the phrase 
 than the expectation of insolvency; it in- 
 cludes the making provision against the re- 
 sults of it; Buckingham v. McLean, 13 How. 
 (U. S.) 151, 14 L. Ed. 91; Heroy v. Kerr, 8 
 Bosw. (N. Y.) 194. See Rison v. Knapp, 1 
 Dill. 186, Fed. Cas. No. 11,861; Martin v. 
 Toof, 1 Dill. 203, Fed. Cas. No. 9,167. 
 
 A conveyance or sale of property made in 
 contemplation of bankruptcy is fraudulent 
 and void ; 2 Bla. Com. 285. 
 
 CONTEMPLATION OF INSOLVENCY. 
 This term means something more than ex- 

 
 CONTEMPLATION OF INSOLVENCY 651 
 
 CONTEMPT 
 
 pectation of its occurrence; it must include 
 provision against its results so far as the 
 transferee is concerned, and that can only 
 be where he is already a creditor and the 
 object is to take his debt out of the equal 
 ratable distribution of the assets of the com- 
 pany wheu insolvent. Ileroy v. Kerr, 21 
 How. Pr. Rep. (N. Y.) 409. 
 
 CONTEMPT. A wilful disregard or diso- 
 bedience of a public authority. 
 
 By the constitution of the United States, 
 each house of congress may determine the 
 rujes of its proceedings, punish its members 
 for disorderly behavior, and, with the con- 
 currence of two-thirds, expel a member. 
 The same provision is substantially contain- 
 ed in the constitutions of the several states. 
 
 The power to make rules carries that of 
 enforcing them, and to attach persons who 
 violate them and punish them for contempts; 
 
 I Kent 2.°.6; State v. Matthews, 37 N. II. 
 450 ; 14 East 1. But see 4 Moore, P. C 63 ; 
 
 II id. 347. This power of punishing for 
 contempts is confined to punishment during 
 the session of the legislature, and cannot 
 extend beyond it; Anderson v. Dunn, 6 
 Wheat. (U. S.) 204, 230, 231, 5 L. Ed. 242; 
 Rap. Contempt 2; and it seems this power 
 cannot be exerted beyond imprisonment. It 
 is often regulated by statute; II. S. R. S. 
 §§ 101-103. The arrest of the offending 
 party is made by the sergeant-at-arms, act- 
 ing by virtue of the speaker's warrant, both 
 in England and the United States ; Anderson 
 v. Dunn, 6 Wheat. (U. S.) 204, 5 L. Ed. 
 242; 10 Q. B. 359. The power of congress 
 to punish for contempt must be found in 
 some express grant in the constitution or 
 be found necessary to carry into effect such 
 powers as are there granted; Kilbourn v. 
 Thompson, 103 U. S. 169, 26 L. Ed. 377: U. 
 S. v. Lee, 106 U. S. 220, 1 Sup. Ct. 240, 27 
 L. Ed. 171. See Congress. 
 
 Courts of justice have an inherent power 
 to punish all persons for contempt of their 
 rules and orders, for disobedience of their 
 process, and for disturbing them in their 
 proceedings; 8 Co. 38 6; State v. Matthews, 
 37 N. II. 450: State v. Morrill. 16 Ark. 384; 
 Ex parte Walker, 23 Ala. 81; Ex parte 
 Adams, 25 Miss. 883, 59 Am. Dec. 234; Clark 
 v. People, Breese (111.) 340, 12 Am. Dec. 17S; 
 Ex parte Terry, 128 U. S. 2S9, 9 Sup. Ct. 
 77, 32 L. Ed. 405; Bessette v. W. B. Con key 
 Co., 194 U. S. 324, 24 Sup. Ct. 665, 48 L. 
 Ed. 997: Kresel v. Battling. 23 Neb. SIS, 
 37 N. W. 668; Matter of Moore, 63 N. C. 
 397; People v. Wilson. 64 111. 195, 16 Am. 
 Rep. 52S; Ex parte Wright, 65 1ml. 508. 
 See In re Savin. i::i TT. S. 267, 9 Sup. Ct. 699, 
 33 L. Ed. 150; Respublica v. Oswald, 1 Dall. 
 (U. S.) 319, 1 L. Ed. 1."..".: it is said that the 
 legislature cannot restrict the power: Ex 
 parte McCown, 130 N. C. 95, 51 S. E. 957, 2 
 L. R. A. (N. S.) 603. A court may commit 
 for a period reaching beyond the term at 
 which the contempt is committed ; Ex parte 
 
 Maulsby, 13 Md. 642. The punishment 
 should not be by piecemeal, but must be 
 entire and final; O'Rourke v. Cleveland, 49 
 N. J. Eq. 577, 25 Atl. 367, :;l Am. St. Rep. 
 719. 
 
 Contempts of court are of two kinds: such 
 as are committed in the presence of the 
 court, and which interrupt its proceedings, 
 which may be summarily punished by order 
 of the presiding judge; and constructive 
 contempts, arising from a refusal to comply 
 with an order of court; Androscoggin & K. 
 R. Co. v. R. Co., 49 Me. 392. In the court 
 of chancery the failure or refusal to perform 
 an order or decree is a contempt, and the 
 enforcement of such orders and decrees i^ 
 by attachment. For an exhaustive discus- 
 sion of the practice in such cases, see note 
 to State v. Livingston, 4 Del. Ch. '2<\r,. 
 
 A prosecution for contempt of court in 
 order to compel obedience to an order made 
 in a chancery proceeding is a civil action; 
 Leopold v. People, 140 111. 552, 30 N. E. 348. 
 
 The punishment is summary and general" 
 ly immediate in contempts committed in 
 facie curicc, and no process or evidence Is 
 necessary ; In re Noonan, 47 Kan. 771, 28 
 Pac. 1104; 2 L. R. II. L. 361: Middlebronk 
 v. State, 43 Conn. 257, 21 Am. Rep. 650; 
 and a party in contempt cannot be heard 
 except to purge himself; Gross v. Clark, 
 87 N. Y. 272. 
 
 In some states, as in Pennsylvania, the 
 power to punish for contempts is restricted 
 to offences committed by the officers of the 
 court, or in its presence, or in disobedience 
 of its mandates, orders, or rules; but no one 
 is guilty of a contempt for any publication 
 made or act done out of court which is not 
 in violation of such lawful rules or orders 
 or in disobedience of its process. By Act 
 of Congress, March 2, 1831, the power in 
 the federal courts to punish for contempt 
 has been limited. Whether it can be held 
 to limit the authority of the Supreme Court, 
 which derives its existence and powers from 
 the constitution, may perhaps be a matter 
 of doubt. The power of the circuit and 
 district courts can only be exercised to en- 
 sure order and decorum in their presence, 
 to secure faithfulness on the part of their 
 officers in their official transactions, and to 
 enforce obedience to their lawful orders, 
 judgments, and processes : Atwell v. U. S., 
 162 Fed. 97, S9 C. C. A. 97, 17 L. R. A. (N. 
 S.) 1049, 15 Ann. Cas. 253, where it was held 
 a grand juror was not guilty of contempt for 
 violating his oath to keep the counsel of 
 the United States. See Oswald's Case, 4 
 Lloyd's Debates 141. If a newspaper article 
 is per se libellous, making a direct charge 
 against court or jury, or admitting of but 
 one reasonable construction and requiring no 
 innuendo to apply its meaning to the court, 
 then the publisher cannot escape by denying 
 under oath that he intended the plain mean- 
 ing which the language used conveys; Allen
 
 CONTEMPT 
 
 652 
 
 CONTEMPT 
 
 v. State, 131 Ind. 599, 30 N. E. 1093. The 
 question of contempt depends upon the act 
 and not the intention of the party; 22 W. 
 R. 398; Wartman v. Wartman, Taney 362, 
 Fed. Cas. No. 17,210; 3 Burr. 1329; 3 C. B. 
 745. A publication in a newspaper, read by 
 the jurors and attendants of the court, 
 which has a tendency to interfere with the 
 unbiased administration of the laws in pend- 
 ing cases, may be a contempt; State v. 
 Judge of Civil District Court, 45 La. Ann. 
 1250, 14 South. 310, 40 Am. St. Rep. 282. 
 
 The jurisdiction prescribed by congress 
 for federal courts gives no power to punish 
 a newspaper publisiher for contempt for 
 criticising the conduct and integrity of the 
 court; Cuyler v. R. Co., 131 Fed. 95; ordi- 
 narily, however, newspapers can be so pun- 
 ished; where a statement of facts are pub- 
 lished which tend to influence a jury in a 
 pending trial and such facts could not have 
 been shown in evidence, such publication is 
 a contempt; Telegram Newspaper Co. v. 
 Com., 172 Mass. 294, 52 N. E. 445, 44 L. R. 
 A. 159, 70 Am. St. Rep. 280; where a news- 
 paper article tends to prejudice the fair 
 trial of a person who has been accused but 
 has not yet been committed, it is a con- 
 tempt; 67 J. P. 421; even an unintentional 
 mis-statement of the conclusion reached by 
 the court is a contempt; In re Providence 
 Journal Co., 28 R. I. 489, 68 Atl. 428, 17 
 L. R. A. (N. S.) 582, 125 Am. St. Rep. 755. 
 Contempt is not the proper remedy against 
 one who publishes a newspaper article re- 
 flecting on the conduct of a judge in the 
 performance of his ministerial duties, the 
 keeping of accounts, fees, etc.; Hamma v. 
 People, 42 Colo. 401, 94 Pac. 326, 15 L. R. 
 A. (N. S.) 621, 15 Ann. Cas. 655. It is a 
 contempt to publish any account, however 
 meagre, and whether accurate or inaccu- 
 rate, of proceedings heard in camera; [1894] 
 3 Ch. 193. 
 
 Criticism of the manner in which trials 
 are conducted cannot be punished unless it 
 refers to some particular case pending be- 
 fore the court; Ex parte Green, 46 Tex. Cr. 
 App. 576, 81 S. W. 723, 66 L. R. A. 727, 108 
 Am. St. Rep. 1035. 
 
 There may be contempt of court by scan- 
 dalizing the court itself; by abusing parties 
 concerned in causes; by prejudicing man- 
 kind against persons before the cause is 
 heard; 2 Atk. 471; but fair criticism on the 
 proceedings of a court when the case is 
 over, can seldom be contempt of court; 
 [1889] A. C. 549. There is no sedition in 
 just criticism on the administration of the 
 law, but it must be without malignity and 
 not attribute corrupt and malicious motives ; 
 11 Cox 49. 
 
 A statement in a petition for re-hearing 
 that the court's ruling is all wrong and 
 written for political reasons is a contempt; 
 In re Chartz, 29 Nev. 110, 85 Pac. 352, 5 L. 
 R. A. (N. S.) 916, 124 Am. St Rep. 915 ; but 
 
 not to file a motion suggesting the disquali- 
 fication of the judge on the ground that he 
 is related to parties having an interest in 
 the suit; Johnson v. State, 87 Ark. 45, 112 
 S. W. 143, 18 L. R. A. (N. S.) 619, 15 Ann. 
 Cas. 531. For a case holding in contempt 
 a trial judge who had grossly attacked in 
 print an appellate court who had twice re- 
 versed his judgment in a trial for rape, see 
 In re Fite, 11 Ga. App. 665, 76 S. E. 397. 
 
 A federal court may punish for contempt 
 one who interferes with a receiver in bank- 
 ruptcy appointed by it ; In re Wilk, 155 Fed. 
 943; and contempts committed before its 
 referee; United States v. Tom Wah, 160 
 Fed. 207; one accused of contempt is not 
 entitled to a jury trial ; In re Fellerman, 149 
 Fed. 244; O'Flynn v. State, 89 Miss. 850, 43 
 South. 82, 9 L. R. A. (N. S.) 1119, 119 Am. 
 St. Rep. 727, 11 Ann. Cas. 530; a denial on 
 oath of having committed a contempt raises 
 an issue of fact for trial; Emery v. State, 
 78 Neb. 547, 111 N. W. 374, 9 L. R. A. (N. S.) 
 1124; either a municipal or business corpo- 
 ration may be fined for contempt where its 
 officers and servants have violated an in- 
 junction; Marson v. City of Rochester, 112 
 App. Div. 51, 97 N. Y. Supp. 881; Franklin 
 Union No. 4 v. People, 220 111. 355, 77 N. E. 
 176, 4 L. R. A. (N. S.) 1001, 110 Am. St. 
 Rep. 248. A defendant in a divorce pro- 
 ceeding who refused to pay alimony may be 
 punished by having his answer stricken from 
 the record; Bennett v. Bennett, 15 Okl. 286, 
 81 Pac. 632, 70 L. R. A. 864. 
 
 One cannot be guilty of contempt in refus- 
 ing to obey an order which the court has no 
 power to make; McHenry v. State, 91 Miss. 
 562, 44 South. 831. 16 L. R. A. (N. S.) 1062; 
 Ex parte Young, 209 U. S. 123, 28 Sup. Ct 
 441, 52 L. Ed. 714, 13 L. R. A. (N. S.) 932. 
 14 Ann. Cas. 764. A decree for the payment 
 of money may be enforced by contempt pro- 
 ceedings ; it is not imprisonment for debt ; 
 Jastram v. McAuslan, 29 R. I. 390, 71 Atl. 
 454, 17 Ann. Cas. 320. A decree that a trus- 
 tee pay over a specified* sum in trust funds 
 is enforceable by execution but not by con- 
 tempt; Mast v. Washtenaw Circuit Judge, 
 154 Mich. 485, 117 N. W. 1052. An unsuc- 
 cessful attempt to induce a third person to 
 influence a jury does not constitute a con- 
 tempt; U. S. v. Carroll, 147 Fed. 947; an 
 assault committed on an attorney in a case 
 by persons interested in the party opposed 
 to him is a contempt, although committed 
 outside the court room; U. S. v. Barrett, 187 
 Fed. 378; and so where proceedings in a 
 criminal case are ordered to be stayed, and 
 a mob, with knowledge of such order, takes 
 the prisoner from jail and hangs him; U. 
 S. v. Shipp, 203 U. S. 563, 27 Sup. Ct. 165, 
 51 L. Ed. 319, 8 Ann. Cas. 265 ; id., 214 U. S. 
 387, 29 Sup. Ct. 637, 53 L. Ed. 1041; a court 
 may punish an attorney for contempt for 
 wilfully absenting himself in a criminal 
 case; In re Clark, 126 Mo. App. 391, 103 S.
 
 CONTEMPT 
 
 653 
 
 CONTEMPT 
 
 W. 1105 ; In re McHugh, 152 Mich. 505, 116 
 N. W. 45© ; In re Clark, 208 Mo. 121, 106 S. 
 W. 990, 15 L. R. A. (N. S.) 389. 
 
 The power of inferior courts to punish for 
 contempt is usually restricted to contempts 
 committed in the presence of the court; 3 
 Steph. Com. 342, n. 9; L. R. 8 Q. B. 134. A 
 justice of the peace cannot punish con- 
 tempts, even committed before him, by sum- 
 mary proceedings; Albright v. Lapp, -'6 Pa. 
 99, 67 Am. Dec. 402; nor a committing magis- 
 trate for refusal to obey a Bubpcena; Farn- 
 ham v. Column, 19 S. D. 342, 103 N. \V. 161, 
 1 L. R. A. (N. S.) 1135, 117 Am. St. Rep. 
 944, 9 Ann. Cas. 314. 
 
 It is said that it belongs exclusively to 
 the court offended to Judge of contempts; 
 State v. Matthews, 37 N. H. 450; State v. 
 MeKinnon, 8 Or. 487; In re Pryor, 18 Kan. 
 72, 26 Am. Rep. 752; In re Williamson, 26 
 Pa. 9, 67 Am. Dec. 374; State v. Anderson, 
 40 la. 207; and no other court or judge can 
 or ought to undertake, in a collateral way, to 
 question or review an adjudication of a 
 contempt made by another competent juris- 
 diction ; 14 East 1; Gist v. Bowman, 2 Bay 
 (S. C.) 1S2; State v. Tipton, 1 Blackf. (Iud.) 
 166; State v. White, T. U. P. Charlt (Ga.) 
 136; Cossart v. State, 14 Ark. 538; Bunch 
 v. State, id. 544; Lockwood v. State, 1 Ind. 
 161; Yates v. People, 6 Johns. (N. Y.) 337; 
 Anderson v. Dunn, 6 Wheat. (U. S.) 204, 5 
 L. Ed. 242; People v. Owens, 8 Utah 20, 28 
 Pac. 871; Seventy-Six Land & Water Co. v. 
 Superior Court, 93 Cal. 139, 28 Pac. 813. 
 But it has been repeatedly held that a court 
 of superior jurisdiction may review the de- 
 cision of one of inferior jurisdiction on a 
 matter of contempt; Com. v. Newton, 1 
 Grant, Cas. (Pa.) 453; Ex parte Rowe, 7 
 Cal. 181; Baltimore & O. R. Co. v. City of 
 Wheeling, 13 Gratt (Va.) 40; Patton v. 
 Harris, 15 B. Mon. (Ky.) 607; though not on 
 habeas corpus; Jordan v. State, 14 Tex. 436; 
 see Ex parte Smith, 53 Cal. 204 ; Shattuck v. 
 State, 51 Miss. 50, 24 Am. Rep. 624; see 
 Tolman v. Jones, 114 111. 147, 28 N. E. 464. 
 It should be by direct order of the court; 
 Geisse v. Beall, 5 Wis. 227. A proceeding 
 for contempt is regarded as a distinct and 
 independent suit; 22 E. L. & Eq. 150; Ex 
 parte Langdon, 25 Vt. 6S0; Lyon v. Lyon, 
 21 Conn. 185; and irregularities in the pro- 
 ceedings are immaterial where the result is 
 a sufficient purging of the contempt and a 
 consequent discharge of the rule; Martin 
 v. Burgwyn, 88 Ga. 78, 13 S. E. 958. 
 
 Though the same act constitute both a 
 contempt and a crime, the contempt may be 
 tried and punished by the court; U. S. v. 
 Debs, 64 Fed. 724; affirmed by the supreme 
 court, which held that it was competent to 
 invoke the jurisdiction of the courts to re- 
 move or restrain obstructions to interstate 
 commerce or the mails, though the acts were 
 criminal in themselves, an injunction having 
 been served, the circuit court had authority 
 
 to Inquire whether its orders had been dis- 
 obeyed, and finding that they had be> i 
 enter the order of punishment, and its liud- 
 ings as to the act of dif 
 open to review on habeas i ... ■ i>us in the su- 
 preme court or any other; In re Debs, 158 
 U. S. 564, 15 Sup. Ct 900, 39 L. Ed. :■ 
 
 Proceedings for contempt are of two 
 3, criminal or punitive, and civil or 
 remedial. The former vindi 
 niiy of the courts, the latter 
 serves, and enforces the rights of private 
 parties and compels obedience to or 
 judgments and decrees made to en 
 such rights: Wasserman v. United States, 
 1G1 Fed. 722, 88 C. C. A. 5S2; Garrigan v. 
 U. S., 163 Fed. 16, 89 C. C. A. 194, 23 L. R. 
 A. (X. S.) 1 -'X,\ when contempt proceeding 
 are brought to enforce a civil right, the 
 constitutional provision that no person shall 
 be compelled to be a witness against him- 
 self does not apply, since it is not a criminal 
 proceeding; Patterson v. District Council, 31 
 l'a. Super. Ct. 112. 
 
 Every member of the public "is bound to 
 observe the restrictions of an injun 
 when known, to the extent that he must not 
 aid and abet its violation by others," nor ob- 
 struct the administration of justice; the 
 power of the court to proceed against one so 
 offending is inherent and Indisputable; Gar- 
 ri_.ui v. U. S., 163 Fed. 16, 89 C. C. A. 494, 
 23 L. R. A. (N. S.) 1295. dting [1897] L. It. 
 1 Ch. 545 ; In re Reese, 107 Fed. 942, 47 C 
 C. A. S7. There is an elementary distinction 
 between disobedience of an injunction by 
 parties and privies, and the conduct of oth- 
 ers in contempt of the commands of the 
 courts; Garrigan v. U. S., 163 Fed. in. 89 
 C. C. A. 494, 23 L. R. A. (N. S.) 1295. Ac- 
 tual notice will render one not a party guilty 
 of contempt in violating an injunction; it is 
 not necessary that he should have been 
 served with a copy of the injunction decree 
 or the writ ; In re Lennon, 166 U. S. 54S, 17 
 Sup. Ct. 65S, 41 L. Ed. 1110; Aldinger v. 
 Tugh, 132 N. Y. 403, 30 N. E. 745. But pub- 
 lication in newspapers and the posting upon 
 wagons of a teaming company of an Injunc- 
 tion order forbidding interference with its 
 teams, are not enough to charge with knowl- 
 edge thereof one not a party to the proceed- 
 ings who assists in a riot in which the 
 teams are interfered with, such person de- 
 nying knowledge and having a presumption 
 of innocence in his favor; Garrigan v. 1". 
 S., 163 Fed. 16, S9 C. C. A. P.M. 23 L. R. A. 
 (N. S.) 1295. But mere reading and giving 
 to one not a party a copy of the decree con- 
 stitutes sufficient notice as a basis Cor eon- 
 tempt proceedings; Fowler v. Beckmau, 60 
 N. H. 424. :'.0 Atl. 1117. 
 
 Proceedings for contempt against one not 
 a party to the cause, for disobedience of an 
 injunction, are criminal in their nature, and 
 the accused is entitled to the presumption of 
 innocence; they are reviewable by writ of
 
 CONTEMPT 
 
 654 
 
 CONTENTMENT 
 
 error ; Garrigan v. U. S., 163 Fed. 16, 89 C. 
 C. A. 494, 23 L. R. A. (N. S.) 1295, citing Bes- 
 sette v. W. B. Conkey Co., 194 U. S. 324, 24 
 Sup. Ct. 665, 48 L. Ed. 997 ; In re Christensen 
 Engineering Co., 194 U. S. 458, 24 Sup. Ct 
 729, 48 L. Ed. 1072. 
 
 A proceeding instituted by an aggrieved 
 party to punish the other party for contempt 
 for affirmatively violating an injunction in 
 the same action in which the injunction was 
 issued, and praying for damages and costs, is 
 a civil proceeding in contempt df which the 
 only punishment is by fine, measured by the 
 pecuniary injury sustained. If the main suit 
 is discontinued, the contempt proceedings fall 
 with it, but in such case the court may in- 
 stitute proceedings to vindicate its author- 
 ity ; Gompers v. Range Co., 221 U. S. 418, 31 
 Sup. Ct. 492, 55 L. Ed. 797, 34 L. R. A. (N. 
 S.) 874. 
 
 For a contempt out of the view and hear- 
 ing of the court, the offending party will be 
 allowed to answer and offer evidence in de- 
 fence of the charge; Hohenadel v. Steele, 
 237 111. 229, 86 N. E. 717. At common law 
 the sworn answer of one charged with con- 
 tempt was conclusive and discharged the con- 
 tempt ; Coleman v. State, 121 Tenn. 1, 113 
 S. W. 1045; Baird v. People, 134 111. App. 
 433. 
 
 Where a defendant violates an injunction 
 pending an appeal, the appellate court is the 
 proper tribunal to punish the contempt; Me- 
 nuez v. Candy Co., 77 Ohio 3S6, 83 N. E. 82, 
 11 Ann. Cas. 1037; an order punishing con- 
 tempt, made in the progress of a case not 
 criminal, is interlocutory and can only be 
 reviewed on appeal from final decree ; Doyle 
 v. Guarantee & Ace. Co., 204 U. S. 599, 27 
 Sup. Ct. 313, 51 L. Ed. 641; In re Christen- 
 sen Engineering Co., 194 U. S. 458, 24 Sup. 
 Ct. 729, 48 L. Ed. 1072. 
 
 See 20 Am. Law Reg. N. S. 81, where the 
 subject is treated at length; Rapalje, Con- 
 tempt ; Judge. 
 
 As to proceedings to compel payment of 
 alimony, see Staples v. Staples, 87 Wis. 592, 
 58 N. W. 1036, 24 L. R. A. 433. 
 
 CONTEMPTIBILITER (L. Lat contemp- 
 tuously). In Old English Law. Contempt, 
 contempts. Fleta, lib. 2, c. 60, § 35. 
 
 CONTENEMENTUM. See Wainagium ; 
 Contentment. 
 
 CONTENTIOUS JURISDICTION. In Ec- 
 clesiastical Law. That which exists in cases 
 where there is an action or judicial process 
 and matter in dispute is to be heard and 
 determined between party and party. It is 
 to be distinguished from voluntary jurisdic- 
 tion, which exists in cases of taking probate 
 of wills, granting letters of administration, 
 and the like. 3 Bla. Com. 66. 
 
 CONTENTMENT (or, more properly, con- 
 tenement; L. Lat. contenementum). A man's 
 countenance or credit, which he has together 
 
 with, and by reason of, his freehold ; or that 
 which is necessary for the support and main- 
 tenance of men, agreeably to their several 
 qualities or states of life. Cowell; 4 Bla. 
 Com. 379. 
 
 CONTENTS. The contents of a note are 
 the sum it shows to be due; Sere v. Pitot, 
 6 Cra. (U. S.) 332, 3 L. Ed. 240; Corbin v. 
 Black Hawk County, 105 U. S. 659, 26 L. Ed. 
 1136; of a chose in action are the rights 
 created by it; id. 
 
 CONTENTS AND N 0T-C0NTENTS. The 
 "contents" are. those who, in the house of 
 lords, express assent to a bill; the "not-" or 
 "non-contents," dissent. May, P. L. c. 12, 357. 
 
 CONTENTS UNKNOWN. A phrase con- 
 tained in a bill of lading, denoting that the 
 goods are shipped in apparently good condi- 
 tion. Clark v. Barnwell, 12 How. (U. S.) 273, 
 13 L. Ed. 985. 
 
 C0NTESTATI0 LITIS. In Civil Law. 
 The statement and answer of the plaintiff 
 and defendant, thus bringing the case before 
 the judge, conducted usually in the presence 
 of witnesses. Calvinus, Lex. 
 
 This sense is retained in the canon law. 1 Kaufm. 
 Mackeldey, C. L. 205. A cause is said to be contestata 
 when the judge begins to hear the cause after an 
 account of the claims, given not through pleadings, 
 but by statement of the plaintiff and answer of the 
 defendant. Calvinus, Lex. 
 
 In Old English Law. Coming to an issue; 
 the issue so produced. Steph. PI. App. n. 39 ; 
 Crabb, Hist 216. 
 
 CONTESTED ELECTION. This phrase 
 has no technical or legally defined meaning. 
 An election may be said to be contested 
 whenever an objection is formally urged 
 against it, which, if found to be true in fact 
 would invalidate it This must be true both 
 as to objection founded upon some consti- 
 tutional provision, as well as upon any mere 
 statutory enactment; Robertson v. State, 
 109 Ind. 116, 10 N. E. 582, 643. 
 
 CONTEXT. Those parts of a writing 
 which precede and follow a phrase or pas- 
 sage in question ; the connection. 
 
 It is a general principle of legal interpretation 
 that a passage or phrase is not to be understood ab- 
 solutely as if it stood by itself, but is to be read in 
 the light of the context, i. e. in its connection with 
 the general composition of the instrument. The 
 rule is frequently stated to be that where there is 
 any obscurity in a passage the context is to be con- 
 sidered ; but the true rule is much broader. It is 
 always proper to look at the context in the applica- 
 tion of the most ambiguous expression. Thus, if on 
 a sale of goods the vendor should give a written re- 
 ceipt acknowledging payment of the price, and con- 
 taining, also, a promise not to deliver the goods, the 
 word "not" would be rejected by the court, because 
 it is repugnant to the context. It not unfrequently 
 happens that two provisions of an instrument are 
 conflicting: each is then the context of the other, 
 and they are to be taken together and so understood 
 as to harmonize with each other so far as may be, 
 and to carry out the general intent of the instru- 
 ment. In the context of a will, that which follows 
 controls that which precedes ; and the same rule 
 has been asserted with reference to statutes. See 
 Construction; Interpretation; Statutes.
 
 CONTIGUOUS 
 
 G55 
 
 CONTINGENT LEGACY 
 
 CONTIGUOUS. In close proximity, in ac- 
 tual close contact. Arkell v. Ins. Co., 09 N. 
 Y. 191, 25 Am. Rep. 168 ; as, contiguous pro- 
 prietors are those whose lands actually touch. 
 Vicinal are not necessarily contiguous pro- 
 prietors; Raxedale v. Seip, 32 La. Ann. 435. 
 In an ordinance relating to excavations 
 and the preservation of contiguous struc- 
 tures, it contemplates nearness of a struc- 
 ture, but with intervening space; Baxter v. 
 Realty Co., 12S App. Div. 79, 112 N. Y. Supp. 
 455. 
 
 CONTINGENCY. The quality of being 
 contingent or casual; the possibility of com- 
 ing to pass; an event which may occur. 
 Webster. 
 
 It is a fortuitous event which comes with- 
 out desigu, foresight, or expectation. Peo- 
 ple v. Village of Yonkers, 39 Barb. (N. Y.) 
 272. 
 
 CONTINGENCY WITH DOUBLE AS- 
 PECT. If there are remainders so limited 
 that the second is a substitute for the first 
 in case it should fail, and not in derogation 
 of It, the remainder is said to be in a con- 
 tingency with double aspect Fearne, Rem. 
 373 ; 1 Steph. Com. 328. 
 
 CONTINGENT. When applied to a use, 
 remainder, devise, bequest, or other legal 
 right or interest, it means that no present 
 interest exists, and that whether such inter- 
 est or right ever will exist, depends upon a 
 future uncertain event The legal definition 
 of the word concurs with its ordinary ac- 
 ceptation in showing that the term contin- 
 gent implies a possibility ; Jemison v. Blow- 
 ers, 5 Barb. (N. Y.) 692. 
 
 CONTINGENT DAMAGES. Those given 
 where the issues upon counts to which no 
 demurrer has been filed are tried, before de- 
 murrer to one or more counts in the same 
 declaration has been decided. 1 Stra. 431. 
 
 Inaccurately used to describe consequen- 
 tial damages, q. v. 
 
 CONTINGENT ESTATE. A contingent 
 estate depends for its effect upon an event 
 which may or may not happen: as, an estate 
 limited to a person not in esse, or not yet 
 born. Crabb, R. P. § 916. 
 
 CONTINGENT FEES. See Champerty. 
 
 CONTINGENT INTEREST IN PERSON- 
 AL PROPERTY. It may be defined as a fu- 
 ture interest not transmissible to the repre- 
 sentatives of the party entitled thereto, in 
 case he dies before it vests in possession. 
 Thus, if a testator leaves the income of a 
 fund to his wife for life, and the capital of 
 the fund to be distributed among such of 
 his children as shall be living at her death, 
 the interest of each child during the widow's 
 lifetime is contingent, and in case of his 
 death is not transmissible to his representa- 
 tives. Moz. & W. Law Diet 
 
 CONTINGENT LEGACY. A legacy made 
 
 dependent upon some uncertain event 1 
 Rop. Leg. 506. Beach, Wills 406. 
 
 A legacy which has not vested. Wins. Ex. 
 1229. 
 
 CONTINGENT REMAINDER. An estate 
 in remainder which is limited to tain- effect 
 either to a dubious and uncertain person, or 
 upon a dubious and uncertain event, by 
 which no present or particular i pass- 
 
 es to the remainderman, so that the partic- 
 ular estate may chance to be determined and 
 the remainder never take effect. 2 Bla. Com. 
 L69. 
 
 A remainder limited so as to depend upon 
 an event or condition which may never hap- 
 pen or be performed, or which may not hap- 
 pen or be performed till after the determina- 
 tion of the preceding estate. lea rue. Cont 
 Rem. 3; 2 Washb. U. 1'. 224. See L'EtOUT- 
 neau v. Henquenet, fe9 Mich. 428, 50 N. w. 
 L077, 28 Am. St. Rep. 310; Maguire v. Moore, 
 1US Mo. 267, 18 S. W. 897; Peirce v. Hub- 
 bard, 152 Pa. 18, 25 Atl. 231 ; [lS'JJ] 1 Q. B. 
 LSI; Remainueb; 30 Harv. L. Rev. 192; 
 I'awson v. Lancaster, 28 Pa. Co. Ct. EL 657; 
 Fisher v. Wagner, 109 Md. 243, 71 Atl. 999, 
 21 L. R. A. (N. S.) 121. 
 
 CONTINGENT USE. A use limited in a 
 deed or conveyance of land which may or may 
 not happen to vest, according to the contin- 
 gency expressed in the limitation of such use. 
 Such a use as by possibility may happen 
 in possession, reversion, or remainder. 1 Co. 
 121; Com. Dig. Uses (K, 6). A use limited 
 to take effect upon the happening of some 
 future contingent event ; as, where lands are 
 conveyed to the use of A and B after a mar- 
 riage had between them. 2 Bla. Com. 334. 
 
 A contingent remainder limited by way of 
 uses. Sugd. Uses 175. See 4 Kent 237. 
 
 CONTINUAL CLAIM. A formal claim 
 made once a year to lands or tenement- of 
 which we cannot, without danger, attempt to 
 take possession. It had the same effect as 
 a legal entry, and thus saved the right of 
 entry to the heir. Cowell ; 2 Bla. Com. 316 ; 
 3 id. 175. This effect of a continual claim is 
 abolished by stat. 3 & 4 Will. IV. c. 27, § 11. 
 1 Steph. Com. 509. 
 
 CONTINUANCE. The adjournment of a 
 cause from one day to another of the same 
 or a subsequent term. 
 
 The postponement of the trial of a cause. 
 In the ancient practice, continuances were entered 
 upon the record, and a variety of forms adapted to 
 the different stages of the suit were in use. See 1 
 Chit. PI. 455; 3 Bla. Com. 316. The object of the 
 continuance was to secure the further attendance 
 of the defendant, who having once attended could 
 not be required to attend again, unless a day was 
 fixed. The entry of continuance became at the 
 time mere matter of form, and is now discontinued 
 In England and most of the states of the United 
 States. 
 
 Before the declaration, continuance is by dies 
 datus prcce partium; after the declaration, and be- 
 fore issue joined, by imparlance; after issue joined, 
 and before verdict, by vice-comes non misit breve; 
 and after verdict or demurrer, by curia advisare
 
 CONTINUANCE 
 
 656 
 
 CONTINUANCE 
 
 vult. 1 Chit. PI. 455, 749; Bac. Abr. Pleas (P), Trial 
 (H); Com. Dig. Pleader (V); Steph. PI. 64. In its 
 modern use the word has the second of the two 
 meanings given above. 
 
 Among the causes for granting a continu- 
 ance are absence of a material witness; 
 Steinmetz v. Currie, 1 Dall. (U. S.) 270, 1 L. 
 Ed. 132; Higginbotham v. Chainberlayne, 4 
 Munf. (Va.) 547 ; Eads v. State, 26 Tex. App. 
 69, 9 S. W. 68; Carter v. Wharton, 82 Va. 
 264 ; but he must have been subpoenaed ; Bone 
 v. Hillen, 1 Mill, Const. (S. C.) 198 ; Parker 
 v. Leman, 10 Tex. 116; Wright v. State, 18 
 Ga. 383; in many states the opposite party 
 may prevent it by admitting that certain tacts 
 would be proved by such witness; Smith v. 
 Creason's Ex'rs, 5 Dana (Ky.) 298, 30 Am. 
 Dec. 688 ; Willis v. People, 1 Scam. (111.) 399 ; 
 Dominges v. State, 7 Smedes & M. (Miss.) 
 475, 45 Am. Dec. 315; Nave v. Horton, 9 Ind. 
 563 ; Keith v. Knoche, 43 111. App. 161 ; State 
 v. Hatfield, 72 Mo. 518 ; and the party ask- 
 ing delay is usually required to make affi- 
 davit as to the facts on which he grounds his 
 request; Rhea v. State, 10 Yerg. (Tenn.) 258; 
 Vickers v. Hill, 1 Scam. (111.) 307; Phillips 
 v. Reardon, 7 Ark. 256; People v. Baker, 1 
 Cal. 403; Smith v. Barker, 3 Day (Conn.) 
 2S0, Fed. Cas. No. 13,012; Ralston v. Loth- 
 ain, 18 Ind. 303; and, in some states, as to 
 what he expects to prove by the witness; 
 Nash v. Upper Appomattox Co., 5 Gratt. (Va.) 
 332; Bailey v. Hardy, 12 111. 459; Sledman 
 v. Hamilton, 4 McLean 538, Fed. Cas. No. 
 13,343; Merchant v. Bowyer, 3 Tex. Civ. 
 App. 367, 22 S. W. 763 ; if the opposing coun- 
 sel stipulates that the witness, if called, 
 would so testify, a continuance is refused. 
 In other states, an examination is made by 
 the court; Harris v. Harris, 2 Leigh (Va.) 
 584; Irroy v. Nathan, 4 E. D. Sm. (N. Y.) 
 68 ; as to what diligence was used to procure 
 his presence; St. Louis & K. C. R. Co. v. 
 Olive, 40 111. App. 82; Weeks v. State, 31 
 Miss. 490 ; Fiott v. Com., 12 Gratt. (Va.) 564 ; 
 and it is error to grant a continuance on 
 oral statement of counsel; Whaley v. King, 
 92 Cal. 431, 28 Pac. 579; the court is not 
 bound to grant it where it is altogether con- 
 jectural whether the. witnesses are alive, and" 
 if so where they reside or if their evidence 
 can be procured; Lowenstein v. Greve, 50 
 Minn. 383, 52 N. W. 964; or to examine a 
 witness not summoned ; Soper v. Manning, 
 158 Mass. 381, 33 N. E. 516; inability to ob- 
 tain the evidence of a witness out of the 
 state in season for trial, in some cases; U. 
 S. v. Duane, 1 Wall. Sr. 5, Fed. Cas. No. 14,- 
 996; Marsh v. Hulbert, 4 McLean 364, Fed. 
 Cas. No. 9,116; filing amendments to the 
 pleadings which introduce new matter of 
 substance; Tourtelot v. Tourtelot, 4 Mass. 
 506; Jones v. Talbot, 4 Mo. 279; Taylor v. 
 Heffner, 4 Blackf. (Ind.) 387; filing a bill 
 of discovery in chancery in some cases; 
 Ridgely v. Campbell, 1 Har. & J. (Md.) 452 ; 
 Hurst T. Hurst, 3 Dall. (Pa.) 512, Fed. Cas. 
 
 No. 6,929, 1 L. Ed. 700; detention of a par- 
 ty in the public service; Republica v. Mat- 
 lack, 2 Dall. (Pa.) 108, 1 L. Ed. 310; see 
 Nones v. Edsall, 1 Wall. Jr. 189, Fed. Cas. 
 No. 10,290 ; illness of counsel, sometimes ; 
 Shultz v. Moore, 1 McLean 334, Fed. Cas. 
 No. 12,825; Rhode Island v. Massachusetts, 
 11 Pet. (U. S.) 226, 9 L. Ed. 697; State v. 
 Adams, 5 Harring. (Del.) 107; Thompson 
 v. Thornton, 41 Cal. 626; Brady v. Malone, 
 4 la. 146; Printup v. Mitchell, 19 Ga. 586; 
 or surprise from unexpected testimony ; 
 Branch v. Du Bose, 55 Ga. 21; Childs v. 
 State, 10 Tex. App. 183. But it is not suffi- 
 cient where it is not shown that the client's 
 case is prejudiced thereby ; Board of Com'rs 
 of Tipton County v. Brown, 4 Ind. App. 288, 
 30 N. E. 925. 
 
 The request must be made in due season ; 
 Woods v. Young, 4 Cra. (U. S.) 237, 2 L. Ed. 
 607; McCourry v. Doremus, 10 N. J. L. 245; 
 Clinton v. Hopkins, 2 Root (Conn.) 25 ; Smith 
 v. Holebrook, id. 45; Hanna v. McKenzie, 5 
 B. Monr. (Ky.) 314, 43 Am. Dec. 122. It is 
 addressed to the discretion of the court; 
 Fiott v. Com., 12 Gratt. (Va.) 564 ; Scogin v. 
 Hudspeth, 3 Mo. 123; Farrand v. Bouchell, 
 Harp. (S. C.) 85; Justrobe v. Price, Harp. 
 (S. C.) 112; Sheppard v. Lark, 2 Bailey (S. 
 C.) 576; Cornelius v. Boucher, Breese (111.) 
 32; Cox v. Hart, 145 U. S. 376, 12 Sup. Ct. 
 962, 36 L. Ed. 741 ; Smith v. Collins, 94 Ala. 
 394, 10 South. 334; Baumberger v. Arff, 96 
 Cal. 261, 31 Pac. 53; Wilkowski v. Halle, 37 
 Ga. 678, 95 Am. Dec. 374 ; Armour & Co. v-. 
 Kollmeyer, 161 Fed. 78, 88 C. C. A. 242; 16 
 L. R. A. (N. S.) 1110; without appeal; Hill 
 v. Bishop, 2 Ala. 320; Babcock v. Scott, 1 
 How. (Miss.) 100; State v. Duncan, 28 N. C 
 98; Magruder v. Snapp, 9 Ark. 108; Porter 
 v. Lee, 16 Pa. 412; Simms v. Hundley, 6 
 How. (U. S.) 1, 12 L. Ed. 319; and is not 
 reviewable on error ; Cox v. Hart, 145 U. S. 
 376, 12 Sup. Ct. 962, 36 L. Ed. 741; Woods v. 
 Young, 4 Cra. (U. S.) 237, 2 L. Ed. 607 ; Van- 
 guilder v. Stull, 10 N. J. L. 235 ; but an im- 
 proper and unjust abuse of such discretion 
 may be remedied by superior courts, in va- 
 rious ways. See Vanblaricum v. Ward, 1 
 Blackf. (Ind.) 50; Fuller v. State, 1 Blackf. 
 (Ind.) 64; Fox v. Govan, 4 Hen. & M. (Va.) 
 157; Reynard v. Brecknell, 4 Pick. (Mass.) 
 302 ; Sealy v. State, 1 Ga. 213, 44 Am. Dec. 
 641; McDaniel v. State, 8 Smedes & M. 
 (Miss.) 401, 47 Am. Dec. 93 ; Darne v. Broad- 
 water, 9 Mo. 19 ; Hipp v. Bissell, 3 Tex. 18 ; 
 Cole v. Choteau, 18 111. 439; People v. Ver- 
 milyea, 7 Cow. (N. Y.) 3C9; Davis & Ran- 
 kinBldg. & Mfg. Co. v. Butter & Cheese Co., 
 84 Wis. 262, 54 N. W. 506; Isaacs v. U. S., 
 159 U. S. 487, 16 Sup. Ct. 51, 40 L. Ed. 229; 
 Valdes v. Central Altagracia, 225 U. S. 58, 
 32 Sup. Ct. 664, 56 L. Ed. 980. 
 
 C0NTINUAND0 (Lat. continuare, to con- 
 tinue). An averment that a trespass has 
 been continued during a number of days. 3
 
 CONTINUANDO 
 
 657 
 
 CONTRA 
 
 Bla. Com. 212. It was allowed, to prevent a 
 multiplicity of actions; 2 Rolle, Abr. 546; 
 only where the injury was such as could, 
 from its nature, be continued; 1 Wms. 
 Saund. 24, n. 1. 
 
 The form is now disused, and the same 
 end secured by alleging divers trespasses to 
 have been committed between certain days. 
 1 Saund. 24, n. 1. See Gould, PI. c. 3, § 86 ; 
 Hamm. N. P. 90, 91; Bac. Abr. Trespass, I, 
 2, n. 2. 
 
 CONTINUING CONSIDERATION. 
 
 Consideration. 
 
 See 
 
 CONTINUING DAMAGES. See Measube 
 of Damages. 
 
 CONTINUING OFFENCE. When an of- 
 fence consumes a great length of time in its 
 perpetration, the question often arises wheth- 
 er it is but a single offence or whether it can 
 be split into a number of indictments. The 
 test is that, if the transaction is set in mot ion 
 by a single impulse and operated upon by a 
 single unintermittent force, it forms a con- 
 tinuous act, and hence must be treated as 
 one; Whart Cr. Law (10th ed.) §§ 27, 931. 
 Thus gas fraudulently drawn from a main 
 pipe for a great space of time constitutes but 
 one offence ; L. R. 1 C. C. 172 ; articles remov- 
 ed at intervals a few minutes apart hut by 
 one impulse ; 4 C. & P. 217, 386 ; or when a 
 shaft of coal is opened and quarried, if there 
 be but one tapping of the vein, though it con- 
 tinue several years; 2 C. & P. 7G5. Nuisanc- 
 es, though usually continuous offences, may 
 be the object of successive prosecutions, if 
 distinct impulses are given at intermittent 
 times. The test is whether the individual 
 acts are prohibited or the course of action 
 which they constitute ; Whart Cr. Law § 
 27. Cohabitation with more than one wo- 
 man for a period of time constitutes but one 
 offence under the act of congress of March 
 22, 1882; In re Snow, 120 U. S. 274, 7 Sup. 
 Ct. 556, 30 L. Ed. 658. 
 
 The offence of receiving a rebate under 
 the Elkins act is the transaction that the 
 given rebate consummates, and not the units 
 of measurement of the physical thing trans- 
 ported ; Standard Oil Co. of Indiana v. U. 
 S., 164 Fed. 376, 90 C. C. A. 364; as to 
 interstate merchandise, it is a single con- 
 tinuing offence, continuously committed in 
 each district through which it is conducted ; 
 Armour Packing Co. v. U. S., 209 U. S. 56, 
 28 Sup. Ct 42S, 52 L. Ed. 681. 
 
 CONTINUOUS EASEMENTS. Easements 
 of which the enjoyment is or may be con- 
 tinual, without the necessity of any actual 
 interference by man, as a waterspout or a 
 right of light or air. Washb. Easem. 21. See 
 Easements. 
 
 C0NTI0NES. General meetings of the 
 Roman people. Launspach, State and Fam- 
 ily in Early Rome 69. 
 Bouv.— 42 
 
 CONTRA (Lat). Over; against; opposite. 
 Against; otherwise decided. After stating a 
 rule of law, if it be followed by contra, and 
 the citation of other that 
 
 the latter hold a contrary view. It is equiv- 
 alent to alitcr. Per contra. In opposition. 
 
 CONTRA BONOS MORES. Against sound 
 morals. 
 
 Contracts which are incentive to crime, 
 or of which the consideration is an ohli . 
 tion or engagement improperly prejudicial to 
 the feelings of a third party, offensive to de- 
 cency or morality, or which has a tender 
 to mischievous or pernicious consequent 
 are void, as being contra bonos mores; - 
 W'ils. 447; Cowp. 729; 4 Campb. 152; 1 B. & 
 AM. 883; 16 East 150. 
 
 CONTRA F0RMAM STATU Tl (Lat ag 
 
 the form of the statute). The formal man- 
 ner of alleging that the offence described in 
 an indictment is one forbidden by statute. 
 
 When one statute prohibits a thing and 
 another gives the penalty, in an action for 
 the penalty the declaration should conclude. 
 contra formam statutorum; Plowd. 206; 2 
 Easl 333. The same rule applies to informa- 
 tions and indictments; 2 Hale, PL Cr. 17-. 
 But where a statute refers to a former one, 
 and adopts and continues the provisions of 
 it, the declaration or indictment should con- 
 clude contra formam statuti; Hale. I'l. Cr. 
 172. Where a thing is prohibited by several 
 statutes, if one only gives the action and 
 the others are explanatory and restrictive. 
 the conclusion should be contra formam, sta- 
 tuti; 2 Saund. 377. 
 
 When the act prohibited was not an of- 
 fence or ground of action at common law, it 
 is necessary both in criminal and civil 
 to conclude against the form of the statute 
 or statutes; 1 Saund. 135c; 1 Chit. PI. 556; 
 Com. v. Inhabitants of Stoekhridge, 11 Mass. 
 280; Cross v. U. S., 1 Gall. 30, Fed. Cas. No. 
 3,434. 
 
 But if the act prohibited by the statute is 
 an offence or ground of action at common 
 law, the indictment or action may be in the 
 common-law form, and the statute need not 
 be noticed even though it prescribe a form 
 of prosecution or of action, — the statute rem- 
 edy being merely cumulative: Co. 2d Inst. 
 200; 2 Burr. 803; 3 id. 141S ; 4 trf. 2351; 
 2 Wils. 146; Com. v. Hoxey, 16 Mass. 385. 
 
 When a statute only Inflicts a punish- 
 ment on that which was an offence at com- 
 mon law, the punishment prescribed may 
 be inflicted though the statute is not noticed 
 in the indictment; Oom. v. Searle, 2 Binn. 
 (Pa.) 332, t Am. Dec 440. 
 
 If an indic,ment for an offence at com- 
 mon law only conclude "against the form 
 of the statute in such case made and pro- 
 vided;" or "the form of the statute" gen- 
 erally, the conclusion will be rejected as sur- 
 plusage, and the indictment maintained as at
 
 CONTRA FORMAM STATUTI 
 
 658 
 
 CONTRABAND OF WAR 
 
 common law; 1 Saund. 135 n. 3; Com. v. 
 Hoxey, 16 Mass. 385; Com. v. Shattuck, 4 
 Cush. (Mass.) 143. But it will be otherwise 
 if it conclude against the form of "the stat- 
 ute aforesaid," when a statute has been pre- 
 viously recited ; 1 Chit. Cr. L. 2S9. See, fur- 
 ther, Com. Dig. Pleader (C,) 76; 5 Viner, 
 Abr. 552, 556 ; Cross v. U. S., 1 Gall. 26, Fed. 
 Cas. No. 3,434; Sears v. U. S., 1 Gall. 257, 
 Fed. Cas. No. 12,592 ; Scroter v. Harrington, 
 8 N. C. 192; Town of Barkhamsted v. Par- 
 sons, 3 Conn. 1; Com. v. Inhabitants of 
 Stockbridge, 11 Mass. 2S0 ; Barter v. Martin, 
 5 Greenl. (Me.) 79. 
 
 CONTRA PACEM (Lat. against the peace). 
 In Pleading. An allegation in an action of 
 trespass or ejectment that the actions there- 
 in complained of were against the peace of 
 the king. Such an allegation was formerly 
 necessary, but has become a mere matter of 
 form and not traversable. See 4 Term 503 ; 
 1 Chit. PL 163, 402; Arch. Civ. PI. 155; 
 Trespass. 
 
 CONTRABAND OF WAR. In Internation- 
 al Law. Goods which neutrals may not car- 
 ry in time of war to either of the belligerent 
 nations without subjecting themselves to the 
 loss of the goods, and formerly the owners, 
 also, to the loss of the ship and other cargo, 
 if intercepted. 1 Kent 138, 143. See Elrod 
 v. Alexander, 4 Heisk. (Tenn.) 345. Food (8 
 Am. Lawy. 108). 
 
 Provisions may be contraband of war, and 
 generally all articles calculated to be of di- 
 rect use in aiding the belligerent powers to 
 carry on the war ; and if the use is doubt- 
 ful, the mere fact of a hostile destination 
 renders the goods contraband; 1 Kent 140; 
 Hall, Int. L. 618. 
 
 The classification of goods made by Eng- 
 lish and American courts divides all mer- 
 chandise into three classes: (1) Articles man- 
 ufactured and primarily or ordinarily used 
 for military purposes in time of war; (2) 
 articles which may be and are used for war 
 or peace according to circumstances; (3) ar- 
 ticles exclusively used for peaceful purposes. 
 Articles of the first class destined to a bel- 
 ligerent country are always contraband; ar- 
 ticles of the second class are so only when 
 actually destined to the military or naval use 
 of the belligerent ; articles of the third class 
 are not contraband, though liable to seizure 
 for violation of blockade or siege. 
 
 The Declaration of London (q. v.) introduc- 
 es a new division of contraband. Certain 
 specified articles, such as arms, ammunition, 
 and other articles of direct use in military 
 and naval operations, are arranged under the 
 head of "Absolute Contraband" and are lia- 
 ble to capture if destined to territory be- 
 longing to, or occupied by, the enemy, or to 
 the armed forces of the enemy. Other speci- 
 fied articles, such as foodstuffs, clothing, 
 bullion, railroad material, fuel, etc., are clas- 
 sified under the name of "Conditional Con- 
 
 traband," and are liable to capture if des- 
 tined for the use of the armed forces or of 
 a government department of the enemy state. 
 Certain other articles, such as cotton, wool, 
 rubber, metallic ores, and industrial machin- 
 ery, are expressly declared not to be con- 
 traband of war. 
 
 In the case of absolute contraband it is 
 immaterial, according to the Declaration of 
 London, whether the carriage of the goods is 
 direct, or entails trans-shipment or a subse- 
 quent transport by land. This is but a re- 
 statement of the existing English and Ameri- 
 can rule. On the other hand, conditional 
 contraband is not liable to capture under the 
 above circumstances, so that the doctrine of 
 "Continuous Voyage" does not apply in this 
 case. By analogy with the right exercised 
 by a belligerent of preventing contraband 
 trade, a belligerent is allowed to prevent 
 neutral ships from carrying dispatches or 
 officers for the other belligerent. The Dec- 
 laration of London lays down definite rules 
 upon this subject under the title of "Unneu- 
 tral service" {q. v.). 
 
 A belligerent may, by force, prevent a 
 neutral ship from carrying dispatches or of- 
 ficers for the other belligerent, by analogy 
 to the law of contraband. Probably a mere 
 common carrier receiving persons in the serv- 
 ice of a belligerent would not be subject to 
 any penalty, therefore, if they took passage 
 in the ordinary course of business; Hall 
 Int. Law 673, approved in L. R. 1 K. B. 
 (1908). 
 
 C0NTRACAUSAT0R. A criminal; one 
 prosecuted for a crime. Wharton. 
 
 CONTRACT (Lat. contractus, from con, 
 with, and traho, to draw. Contractus ultro 
 utroque obligatio est quam Grceci cwd'A/My/ia 
 vocant. Fr. contrat). 
 
 An agreement between two or more par- 
 ties to do or not to do a particular thing. 
 Taney, C. J., Charles River Bridge v. War- 
 ren Bridge, 11 Pet. (U. S.) 420, 572, 9 L. Ed. 
 773. An agreement in which a party under- 
 takes to do or not to do a particular thing. 
 Marshall, C. J., Sturges v. Crowninshield, 4 
 Wheat. (U. S.) 197, 4 L. Ed. 529. An agree- 
 ment between two or more parties for the 
 doing or not doing of some specified thing. 1 
 Pars. Com. 5. 
 
 It has been also defined as follows: A compact 
 between two or more parties. Fletcher v. Peck, 6 
 Cra. (U. S.) 87, 136, 3 L. Ed. 162. An agreement or 
 covenant between two or more persons, in which 
 each party binds himself to do or forbear some act, 
 and each acquires a right to what the other prom- 
 ises. Encyc. Amer. ; Webster. A contract or agree- 
 ment is where a promise is made on one side and 
 assented to on the other ; or where two or more 
 persons enter into an engagement with each other 
 by a promise on either side. 2 Steph. Com. 108, 109. 
 An agreement upon sufficient consideration to do 
 or not to do a particular thing. 2 Bla. Com. 446 ; 
 2 Kent 449. 
 
 A covenant or agreement between two parties 
 with a lawful consideration or cause. West, Sym- 
 bol, lib. 1, § 10; Cowell; Blount. 
 A deliberate engagement between competent par-
 
 CONTRACT 
 
 659 
 
 CONTRACT 
 
 ties upon a legal consideration to do or to abstain 
 from doing some act. Story, Contr. § 1. 
 
 An agreement by whicb two parties reciprocally 
 promise and engage, or one of them singly promises 
 and engages to tlie other, to give some particular 
 thing or to do or abstain from doing some partic- 
 ular act. Pothier, Conts. Pt I, c. 1, i 1; 36 Ch. D. 
 695. 
 
 A mutual promise upon lawful consideration or 
 cause which binds the parties to a performance. 
 The writing which contains the agreement of par- 
 ties with the terms and conditions, and which serves 
 as a proof of the obligation. The last is a distinct 
 signilication. Pierson v. Townsend, 2 Hill (N. Y.) 
 551. 
 
 A voluntary and lawful agreement by competent 
 parties, for a good consideration, to do or not to do 
 a specified thing. Robinson v. Magee, 9 Cal. 83, 
 70 Am. Dec. G^S. 
 
 An agreement enforceable at law, made between 
 two or more persons, by which rights are acquired 
 by one or both to acts or forbearances on the part 
 of the other. Anson, Contr. 9. 
 
 A learned writer has said, in discussing the prop- 
 er definition of contract, that "if we seek to build 
 up a definition of the term 'contract' which shall in- 
 clude all things that have been called contracts and 
 shall exclude all things that have been held not to 
 be contracts, the task is evidently impossible. . . . 
 Any definition of contract therefore must be either 
 arbitrary or Inexact." Harriuian, Contr. 4. 
 
 The consideration is not properly included In the 
 definition of contract, because it does not seem to 
 be essential to a contract, although it may be neces- 
 sary to its enforcement See Consideration ; 1 
 Pars. Contr. 7. 
 
 Mr. Stephen, whose definition of contract Is given 
 above, thus criticizes the definition of Blackstone, 
 which has been adopted by Chancellor Kent and 
 other high authorities. First that the word agree- 
 ment itself requires definition as much as contract. 
 Second, that the existence of a consideration, though 
 essential to the validity of a parol contract, forms 
 properly no part of the idea. Third, that the defini- 
 tion takes no sufficient notice of the mutuality 
 which properly distinguishes a contract from a 
 promise. 2 Steph. Com. 109. 
 
 The use of the word agreement (aggregatio men- 
 Hum) seems to have the authority of the best writ- 
 • ers in ancient and modern times (see above) as 
 a part of the definition, of contract. It is probably 
 a translation of the civil-law conventio (con and 
 venio), a coming together, to which (being derived 
 from ad and grex) it seems nearly equivalent. We 
 do not think the objection that it is a synonym (or 
 nearly so) a valid one. Some word of the kind is 
 necessary as a basis of the definition. No two 
 synonyms convey precisely the same idea. "Most 
 of them have minute distinctions," says Reld, If 
 two are entirely equivalent, it will soon be deter- 
 mined by accident wh(ch shall remain in use and 
 which become obsolete. To one who has no knowl- 
 edge of a language, it is impossible to define any 
 abstract idea. But to one who understands a lan- 
 guage, an abstraction is defined by a synonym prop- 
 erly qualified. By pointing out distinctions and the 
 mutual relations between synonyms, the object of 
 definition is answered. Hence we do not think 
 Blackstone's definition open to the first objection. 
 
 As to the idea of consideration, Mr. Stephen seems 
 correct and to have the authority of some of the first 
 legal minds of modern times. Consideration, how- 
 ever, may be necessary to enforce a contract, though 
 not essential to the idea. Even in that class of con- 
 tracts (by specialty) in which no consideration is in 
 fact required, one is said to be always presumed 
 In law,— the form of the instrument being held to 
 import a consideration. 2 Kent 450, n. But see 
 Consideration, where the subject is more fully 
 treated. 
 
 The third objection of Mr. Stephen to the defini- 
 tion of Blackstone does not seem one to which it is 
 fairly open. There is an idea of mutuality in con 
 and traho, to draw together, and it would seem that 
 mutuality is implied in agreement as well. An 
 aggregatio mentium seems Impossible without mutu- 
 
 ality. Blackstone In his analysis appears to have 
 regarded agreement as implying mutuality ; for he 
 defines it (2 Bla. Com. ii.) 'a mutual bargain or 
 convention." In the above definition, however, all 
 ambiguity is avoided by the use of the words "be- 
 tween two or more parties" following agreement. 
 
 In its widest sense, "contract" includes records 
 and specialties (but see infra); but this use as a 
 general term for all sorts of obligations, though of 
 too great authority to be now doubted, seems to be 
 an undue extension of the proper mc-aLiing of the 
 term, which is much more nearly t-quha. 
 "agreement" which is never applied to 
 Mutuality is of the very essence of both,— not only 
 mutuality of assent, but of act. As expre.- 
 Lord (Joke, Actus contra actum; 2 Co. 15; 7 M. & 
 . argument and note. 
 
 This is illustrated in contracts of sale, bailment, 
 hire, as well as partnership and marriage; and no 
 other engagements but those with this kind of mu- 
 tuality would seem properly to come under the 
 head of contracts. In a bond there is none of this 
 mutuality, — no act to be done by the obligee to 
 make the instrument binding. In a judgment there 
 Is no mutuality either of act or of assent. It is 
 judicium redditum in invitum. It may properly be 
 denied to be a contract, though Blackstone insists 
 that one is implied. Per Mansfield, 3 Burr. 1545; 
 Wyman v. Mitchell, 1 Cow. (N. Y.) 316; per Story. 
 J., Iiullard v. I!. 11, 1 Mas. 288, Fed. Cas. No. 2.V.\. 
 Chitty uses "obligation" as an alternative word of 
 description when speaking of bonds and judgments. 
 Chit. Con. 2, 4. An act of legislature may be a con- 
 tract; so may a legislative grant with exemption 
 from taxes; Matheuy v. Golden, 6 Ohio St. 361. 
 So a charter is a contract between a state and a cor- 
 poration within the meaning of the constitution of 
 the United States, art. 1, § 10, clause 1 ; Dart- 
 mouth College v. Woodward, 4 Wheat. (U. S.) 518, 
 4 L. Ed. 629. Contract is used in the United States 
 constitution in its ordinary sense as signifying the 
 agreement of two or more minds, from considera- 
 tions proceeding from one to the other, to do, or 
 not to do, certain acts. Mutual assent to its terms 
 is of its very essence; it does not extend to a judg- 
 ment against a city for damages suffered from a 
 mob (given by statute) ; Louisiana v. New Orleans, 
 109 U. S. 288, 3 Sup. Ct. 211, 27 L. Ed. 936. 
 
 At common law, contracts have been di- 
 vided ordinarily into contracts of record, 
 contracts by specialty, and simple or parol 
 contracts. The latter may be either written 
 (not sealed) or verbal; and they may also 
 be express or implied. Implied contracts 
 may be either implied in law or Implied In 
 fact. "The only difference between an ex- 
 press contract and one implied in fact is in 
 the mode of substantiating it. An express 
 agreement is proved by express words, writ- 
 ten or spoken . . . ; an implied agree- 
 ment is proved by circumstantial evidence 
 showing that the parties intended to con- 
 tract ;" Leake. Contr. 11 ; 1 B. & Ad. 415 ; 1 
 Aust. Jur. 35G, 377. 
 
 Accessory contracts are those made for as- 
 suring the performance of a prior contract, 
 either by the same parties or by others, such 
 as suretyship, mortgage, and pledges. Louisi- 
 ana Code, art. 17G4 ; roth. Obi. pt 1, c, 1, s. 1, 
 art. 2, n. 14. 
 
 Bilateral contracts are those in which a 
 promise is given in consideration of a prom- 
 ise. Parsons, Contr. 404. 
 
 Contracts of benefice ncc are those by 
 which only one of the contracting parties 
 is benefited: as, loans, deposit, and man- 
 date. Louisiana Code, art. 1707.
 
 CONTRACT 
 
 660 
 
 CONTRACT 
 
 Certain contracts are those in which the 
 thing to be done is supposed to depend on 
 the will of the party, or when, in the usual 
 course of events, it must happen in the man- 
 ner stipulated. 
 
 Commutative contracts are those in which 
 what is done, given, or promised by one par- 
 ty is considered as an equivalent to or in 
 consideration of what is done, given, or 
 promised by the other. Louisiana Code, art. 
 1761. 
 
 Consensual contracts were contracts of 
 agency, partnership, sale, and hiring in the 
 Roman law, in which a contract arose from 
 the mere consensus of the parties without 
 other formalities. Maine, Anc." Law 243. 
 
 Entire contracts are those the considera- 
 tion of which is entire on both sides. 
 
 Executed contracts are those in which 
 nothing remains to be done by either party, 
 and where the transaction has been com- 
 pleted, or was completed at the time the 
 contract or agreement was made : as, where 
 an article is sold and delivered and payment 
 therefor is made on the spot 
 
 Executory contracts are those in which 
 some act remains to be done : as, when an 
 agreement is made to build a house in six 
 months ; to do an act before some future 
 day ; to lend money upon a certain interest 
 payable at a future time. Fletcher v. Peck, 
 6 Cra. (U. S.) 87, 136, 3 L. Ed. 162. 
 
 A contract executed (which differs in nothing 
 from a grant) transfers a chose in possession ; a 
 contract executory transfers a chose in action. 2 
 Bla. Com. 443. As to the importance of grants con- 
 sidered as contracts, see Impairing the Obligation 
 of Contracts. 
 
 Express contracts are those in which the 
 terms of the contract or agreement are open- 
 ly and fully uttered and avowed at the time 
 of making: as, to pay a stated price for 
 certain specified goods; to deliver an ox, etc. 
 2 Bla. Com. 443. 
 
 Gratuitous contracts are those of which 
 the object is the benefit of the person with 
 whom it is made, without any profit or ad- 
 vantage received or promised as a considera- 
 tion for it. It . is not, however, the less 
 gratuitous if it proceed either from gratitude 
 for a benefit before received or from the 
 hope of receiving one hereafter, although 
 such benefit be of a pecuniary nature. Loui- 
 siana Code, art 1766. Gratuitous promises 
 are not binding at common law unless ex- 
 ecuted with certain formalities, viz., by ex- 
 ecution under seal. 
 
 Illegal contracts are agreements to do acts 
 prohibited by law, as to commit a crime; to 
 injure another, as to publish a libel. H. & 
 N. 73. 
 
 Hazardous contracts are those in which 
 the performance of that which is one of its 
 objects depends on an uncertain event. 
 Louisiana Code, art. 1769. 
 
 Implied contracts may be either implied 
 in law or in fact. A contract implied in laio 
 
 arises where some pecuniary inequality ex- 
 ists in one party relatively to the other 
 which justice requires should be compensat- 
 ed, and upon which the law operates by cre- 
 ating a debt to the amount of the required 
 compensation ; Leake, Contr. 38. See 2 Burr. 
 1005; 11 L. J. C. P. 99; 8 C. B. 541. The 
 case of the defendant obtaining the plaintiff's 
 money or goods by fraud, or duress, shows 
 an implied contract to pay the money or the 
 value of the goods. 
 
 A contract implied in fact arises where 
 there was not an express contract, but there 
 is circumstantial evidence showing that the 
 parties did intend to make a contract; for 
 instance, if one orders goods of a tradesman 
 or employs a man to work for him, without 
 stipulating the price or wages, the law raises 
 an implied contract (in fact) to pay the 
 value of the goods or services. In the for- 
 mer class, the implied contract is a pure fic- 
 tion, having no real existence; in the latter, 
 it is inferred as an actual fact See Leake, 
 Contr. 12. 
 
 Independent contracts are those in which 
 the mutual acts or promises have no relation 
 to each other either as equivalents or as 
 considerations. Louisiana Code, art 1762. 
 
 Mixed contracts are those by which one 
 of the parties confers a benefit on the other, 
 receiving something of inferior value in re- 
 turn, such as a donation subject to a charge. 
 
 Contracts of mutual interest are such as 
 are entered into for the reciprocal interest 
 and utility of each of the parties : as sales, 
 exchange, partnership, and the like. 
 
 Onerous contracts are those in which 
 something is given or promised as a consid- 
 eration for the engagement or gift, or some ' 
 service, interest, or condition is imposed on 
 what is given or promised, although unequal 
 to it in value. 
 
 Oral contracts are simple contracts. 
 
 Principal contracts are those entered into 
 by both parties on their own accounts, or in 
 the several qualities or characters they as- 
 sume. 
 
 Real contracts are those in which it is 
 necessary that there should be something 
 more than mere consent, such as a loan of 
 money, deposit, or pledge, which, from their 
 nature, require a delivery of the thing (res). 
 
 Reciprocal contracts are those by which 
 the parties expressly enter into mutual en- 
 gagements, such as sale, hire, and the like. 
 
 Contracts of record are those which are 
 evidenced by matter of record, such as judg- 
 ments, recognizances, and statutes staple. 
 
 These have been said to be the highest class of 
 contracts. Statutes, merchant and staple, and other 
 securities of the like nature, are confined to Eng- 
 land. They are contracts entered into by the inter- 
 vention of some public authority, and are witnessed 
 by the highest kind of evidence, viz., matter of 
 record; Poll. Contr. 141; 4 Bla. Com. 465. 
 
 Severable (or separable) contracts ar« 
 those the considerations of which are by
 
 CONTRACT 
 
 6G1 
 
 
 their terms susceptible of apportionment or 
 division on either side, so as to correspond 
 to the several parts or portions of the con- 
 sideration on the other side. 
 
 A contract to pay a person the worth of his serv- 
 ices as long as he will do certain work, or so much 
 per week as long as he shall work, or to give a cer- 
 tain price per bushel for every bushel of so much 
 corn as corresponds to a sample, would be a sever- 
 able contract. If the part to be performed by one 
 party consists of several distinct and separate items, 
 and the price to be paid by the other is apportioned 
 to each item to be performed, or is left to be im- 
 plied by law, such a contract will generally be held 
 to be severable. So when the price to be paid is 
 clearly and distinctly apportioned to different parts 
 of what is to be performed, although the latter is 
 in its nature single and entire. But the mere fact 
 of sale by weight or measure — i. e. so much per 
 pound or bushel — does not make a contract sever- 
 able. 
 
 Simple conducts are those not of specialty 
 or record. 
 
 They are the lowest class of express contracts, 
 and answer most nearly to our general definition 
 of contract. 
 
 To constitute a sufficient parol agreement to be 
 binding in law, there must be that reciprocal and 
 mutual assent which is necessary to all contracts. 
 They are by parol (which includes both oral and 
 written). The only distinction between oral and 
 written contracts is In their mode of proof. And it 
 is inaccurate to distinguish verbal from written; 
 for contracts are equally verbal whether the words 
 are written or spoken, — the meaning of verbal being 
 
 sued in ivords. See 3 Burr. 1G70; 7 Tei 
 note ; Stackpole v. Arnold, 11 Mass. 27, 6 Am. Dec. 
 150; Cook v. Bradley, 7 Conn. 57, 18 Am. Dec. 79; 
 Union Turnpike Co. v. Jenkins, 1 Caines (N. Y.) 385. 
 
 Specialties are those which are under seal; 
 as, deeds and bonds. 
 
 Specialties are sometimes said to include also con- 
 tracts of record; 1 Pars. Contr. 7; in which case 
 there would be but two classes at common law, viz., 
 specialties and simple contracts. The term special- 
 ty is always used substantively. 
 
 They are the second kind of express contracts 
 under the ordinary common-law division. They are 
 not merely written, but signed, sealed, and delivered 
 by the party bound. The solemnities connected 
 with these acts, and the formalities of witnessing, 
 gave in early times an importance and character to 
 this class of contracts which implied so much cau- 
 tion and deliberation (consideration) that it was un- 
 necessary to prove the consideration even in a court 
 of equity; Plowd. 305; 7 Term 477; 4 B. & Ad. 652; 
 3 Bingh. Ill; 1 Fonb. Eq. 34l\ note. Though little 
 of the real solemnity now remains, and a scroll is 
 substituted in most of the states for the seal, the 
 distinction with regard to specialties has still been 
 preserved intact except when abolished by statute. 
 In Ortman v. Dixon, 13 Cal, 33, it is said that the 
 distinction is now unmeaning and not sustained by 
 reason. See Consideration; Seal. 
 
 When a contract by specialty is changed by a 
 parol agreement, the whole contract becomes parol ; 
 Vicary v. Moore, 2 Watts (Pa.) 451, 27 Am. Dec. 323; 
 Munroe v. Perkins, 9 Pick. (Mass.) 298, 20 Am. Dec. 
 475 ; Delacroix v. Bulkley, 13 Wend. (N. Y.) 71. 
 
 Unilateral contracts are those in which 
 the party to whom the engagement is made 
 makes no express agreement on his part. 
 
 They are so called even in cases where the law 
 attaches certain obligations to his acceptance. Lou- 
 isiana Code, art. 1758. A loan for use and a loan 
 of money are of this kind. Poth. Obi. pt. 1, c 1, s 
 1, art. 2. 
 
 Verbal contracts are simple contracts. 
 
 Written contracts art- those evidenced by 
 writing. 
 
 Pothier's treatise on Obligations, taken in con- 
 nection with the Civil Code of Louisiana, gives an 
 idea of the divisions of the civil law. Poth. Obi. 
 pt. 1, c. 1, s. 1, art. 2, mak( a the Ave following class- 
 es: reciprocal and urn; :a j ani i rea i; 
 those of mutual interest, of 
 
 pal and accessory; those which are su 
 by the civil law to certain rules and 
 those which are regulated by mere natural JusUce. 
 
 It is true that almost all the rights of pi 
 property do in great m< asure depend upon contracts 
 of one kind or other, or at least might be r 
 under some of them; which is the method tali 
 the civil law; it has referred the greatest part of 
 the duties and rights of which It treats to ti. 
 of obligations ex contractu or quasi ex contractu. 
 Inst. 3. 14. 2 ; 2 Bla. Com. 443. 
 
 Quasi-contracts. The usual classify 
 of contracts is objected to by Prof. B 
 in his law of Quasi-Contracts. A true 
 tract exists, he says, because the contract- 
 in;-' party lias willed, in circumstances to 
 which the law attaches the sanction of an 
 obligation, that he shall be bound. li;- 
 tract may be implied in fact, or ex] 
 Which of the two it is. is purely a qu< 
 of the kind of evidence used to establish the 
 contract In either case the source of the 
 obligation is the Intention of the party. 
 "Contajad implied in law" is, however, a 
 term used to cover a class of obligations, 
 where the law, though the defendant did not 
 intend to assume an obligation, imposes an 
 obligation upon him. notwithstanding the ab- 
 sence of intention on his part. and. in many 
 cases, in spite of his actual dissent. Such 
 contracts, according to the work cited, may 
 be termed quasi-contracts, and are not true 
 contracts. They are founded generally : — 
 
 1. T T pon a record. 
 
 2. Upon statutory, official, or customary 
 duties. 
 
 3. Upon the doctrine that no one shall be 
 allowed to enrich himself unjustly at the 
 expense of another. The latter is the most 
 Important and most numerous class. See 
 also Aiis. Contr. 6th ed. 7; 2 Harv. I 
 
 64; Louisiana v. New Orleans, 109 U. S. 
 3 Sup. Ct. 211, 27 L. Ed. 936. 
 
 A claim for half-pilotage fees under a stat- 
 ute allowing such fees, where a idiot's serv- 
 ices are offered and declined, is an instance 
 of a quasi-contract of the second class; Pa- 
 cific -Mail S. S. Co. v. Joliffe, - Wall, i I'. S.) 
 450, 17 L. Ed. 805. See also Milford v. Com., 
 141 Mass. 64, 10 N. E. 616. Prof. Keener, in 
 his work above cited, considers the duly of B 
 carrier to receive and carry safely as being 
 of a quasi-contractual nam re. Among, the 
 third class are also cases of the liability of 
 a husband to pay for necessaries furnished 
 to his wife; of a father for those furnished 
 to his child. Also cases of actions to re 
 money paid under a mistake- ; actions in as- 
 sumpsit against a tort-feasor, where the tort 
 is waived; actions to recover compensation 
 for benefits received under a contract which 
 the plaintiff cannot enforce because he has
 
 CONTRACT 
 
 662 
 
 CONTRACT 
 
 failed to comply with the conditions thereof ; 
 actions for benefits conferred by the plain- 
 tiff under a contract which the defendant, 
 by reason of the statute of frauds, illegality, 
 impossibility, etc., is not bound to perform; 
 actions for benefits conferred on the defend- 
 ant at his request, but in the absence of a 
 contract; actions for benefits intentionally 
 conferred, but without the defendant's re- 
 quest; actions for money paid to the use of 
 the defendant; and actions for money paid 
 under compulsion of law and money paid to 
 the defendant under duress, legal or equita- 
 ble. These are the general classes given in 
 Keener, Quasi-Contracts, to which reference 
 is made, passim. The question to be deter- 
 mined is not the defendant's intention, but 
 what in equity and good conscience the de- 
 fendant ought to do. The action of indebi- 
 tatus assumpsit was extended to most cases 
 of quasi-contracts ; Harriman, Contr. 24 ;. 2 
 Harv. L. Rev. 63. The settled tendency of 
 English and American law is toward a new 
 classification of contracts and the treatment 
 of implied contracts upon the lines here in- 
 dicated. They are lines clearly defined in 
 the Roman law as shown by Maine (Anc. 
 Law, 3d. Am. ed. 332), who is extensively 
 quoted by Keener. See Contractual Obli- 
 gation; Woodward, Quasi-Contracts. 
 
 Negotiations preceding a contract. Where 
 there is an agreement between parties to en- 
 ter into a contract in the future, and any 
 essential part of the contract is left open, 
 the agreement does not constitute a contract 
 in itself ; Sibley v. Felton, 156 Mass. 273, 31 
 N. E. 10. Such is the case also if the agree- 
 ment itself shows that it was not intended to 
 bind the parties, but that a formal contract 
 was to be executed ; Eads v. City of Caronde- 
 let, 42 Mo. 113; 70 L. T. 781. But a mere 
 reference to a contract to be drawn up in 
 the future is not conclusive that the parties 
 are not bound by their original agreement, 
 though it tends to show that such is the 
 case; Allen v. Chouteau, 102 Mo. 309, 14 S. 
 W. 869; L. R. 18 Eq. 180. The question is 
 one of intention to be gathered from the 
 original agreement, in view of all the cir- 
 cumstances; Sanders v. Fruit Co., 144 N. Y. 
 209, 39 N. E. 75, 29 L. R. A. 431, 43 Am. St. 
 Rep. 757; Harriman, Contr. 52. 
 
 Where negotiations are made "subject to 
 the preparation and approval" or "comple- 
 tion of a formal contract," they do not con- 
 stitute a binding contract, whether the con- 
 dition is expressed in the offer ; [1895] 2 Ch. 
 1844; or in the acceptance; 7 Ch. D. 29; 
 but "the mere reference to a future con- 
 tract is not enough to negative the exist- 
 ence of a present one ;" 8 Ch. D. 70. Where 
 a baker sold, and a company bought a shop, 
 and the contract seemed complete in two 
 letters, but afterward the company wrote 
 a third letter introducing a new and vital 
 term, viz., a restriction upon the baker's 
 trading in the district, it was held that the 
 
 three letters read together negatived the 
 idea that the two letters constituted the con- 
 tract ; 42 Ch. D. 616. Where the acceptance 
 was "subject to the title being approved by 
 our solicitor" it was held, that this meant 
 no more than the liberty which every pur- 
 chaser impliedly reserves to himself of 
 breaking off the contract if the vendor 
 breaks it, by not making a good title. The 
 Court of Appeals construed these words as 
 a condition, but Lord Cairns, L. C, pointed 
 out that they would, if so construed, imply 
 that the vendor was free, but the purchaser 
 bound; 4 App. Cas. 311. In 3 App. Cases 
 1121, in the House of Lords, it was said, in 
 holding that a correspondence between par- 
 ties constituted a complete contract, "If you 
 can find the true and important ingredients 
 of an agreement in that which has taken 
 place between two parties in the course of 
 a correspondence, then, although the corre- 
 spondence may not set forth, in a form which 
 a solicitor would adopt if he were instructed 
 to draw an agreement in writing, that which 
 is the agreement between the parties, yet, if 
 the parties to the agreement, the thing to be 
 sold, the price to be paid, and all those mat- 
 ters, be clearly and distinctly stated, al- 
 though only by letter, an acceptance clearly 
 by letter will not the less constitute an 
 agreement in the full sense between the par- 
 ties, merely because that letter may say, 
 'We will have this agreement put in due 
 form by a solicitor.' " In the same case 
 Lord Blackburn said that there must be a 
 complete agreement, "if not there is no con- 
 tract so long as the parties are only in nego- 
 tiation. But the mere fact that the parties 
 have expressly stipulated that there shall 
 afterwards be a formal agreement prepared 
 embodying the terms which shall be signed 
 by the parties, does not by itself show that 
 they continue merely in negotiation. It is 
 a matter to be taken into account in constru- 
 ing the evidence and determining whether 
 the parties have really come to a final agree- 
 ment or not." 
 
 The tendency in recent authorities is said 
 in Pollock, Contr. 47, to discourage all at- 
 tempts to lay down any fixed rule as govern- 
 ing these cases. The question may be made 
 clear by putting it this way, whether there 
 is in the particular case a final consent of 
 the parties such that no new term or varia- 
 tion can be introduced in the formal docu- 
 ment to be proposed. "It is a settled law 
 that a contract may be made by letter and 
 that the mere reference in them to a future 
 formal contract will not prevent their con- 
 stituting a binding contract;" 8 Ch. D. 70. 
 It is not binding if the terms are uncertain, 
 e. g., an agreement to sell an estate reserv- 
 ing "the necessary land for making a rail- 
 road" ; [1875] 20 Eq. 492; to make such a 
 contract in the future "as the parties may 
 agree upon" ; Shepard v. Carpenter, 54 Minn. 
 153, 55 N. W. 906; to give a lease in the
 
 CONTRACT 
 
 663 
 
 CONTRACT 
 
 form usual in the city where the property 
 is situate; Scholtz v. Ins. Co., 100 Fed. 573, 
 40 C. C. A. 55G; otherwise of an agreement 
 to execute a deed of separation containing 
 the "usual covenants"; [1881] 18 Ch. Div. 
 Q70. 
 
 Whore all the terms of a contract were 
 agreed upon and it was dictated to a ste- 
 nographer to be written out and signed by the 
 parties, the contract was held to be complete, 
 though it was not reduced to writing before 
 breach ; Hollerbach & .May Contract Co. v. 
 Wilkins, 130 Ky. 51, 112 S. W. 1126. Though 
 the parties to a contract agreed to reduce it 
 to writing, failure to do so does not invali- 
 date it, but merely affects tbe mode of proof; 
 Jenkins & Reynolds t'o. v. Alpena Portland 
 Cement Co., 147 Fed. G41, 77 C. C. A. 625. 
 
 Where a contract was reduced to writing 
 and assented to by the parties, but not yet 
 signed, it was held not binding; Fourchy v. 
 Ellis, 140 Fed. 149. 
 
 Since the judicature acts in England, a 
 tenant holding uuder an agreement for a 
 lease of which specific performance would 
 be decreed, stands in precisely the same posi- 
 tion as if the lease had been executed; 21 
 Ch. D. 0. 
 
 Qualities of contracts. Every agreement 
 should be so complete as to give either party 
 his* action upon it; both parties must assent 
 to all its terms; 3 Term G53 ; 1 B. & Aid. 
 681; McCulloch v. Ins. Co., 1 Pick. (Mass.) 
 278. To the rule that the contract must be 
 obligatory on both parties, there are some 
 exceptions : as the case of an infant, who 
 may sue, though he cannot be sued, on his 
 contract; Add. Contr. 3S0; Stra. 937. See 
 other instances, 6 East 307; 3 Taunt. 169; 
 5 id. 788; 3 B. & C. 232. There must be a 
 good and valid consideration (q. v.), which 
 must be proved though the contract be in 
 writing; 7 Term 350, note (a) ; 2 Bla. Com. 
 444; Fonb. Eq. 335, n. (a). There is an ex- 
 ception to this rule in the case of bills and 
 notes, which are of themselves prima facie 
 evidence of consideration. And in other con- 
 tracts (written), when consideration is ac- 
 knowledged, it is prima facie evidence there- 
 of, but open to contradiction by parol testi- 
 mony. There must be a thing to be done 
 which is not forbidden by law, or one to be 
 admitted which is not enjoined by law. 
 Fraudulent, immoral, or forbidden contracts 
 are void. A contract is also void if against 
 public policy or the statutes, even though 
 the statute be not prohibitory but merely af- 
 fixes a penalty ; Poll. Contr. 259 ct scq.; 
 Mitchell v. Smith, 4 Dall. (U. S.) 269, 1 L. 
 Ed. 828; Mabin v. Coulon, 4 Dall. (U. S.) 
 298, 1 L-. Ed. S41 ; Stanley v. Nelson, 28 Ala. 
 514; Siter v. Sheets, 7 Ind. 132; Solomon v. 
 Dreschler, 4 Minn. 278 (Gil. 197) ; Coburn 
 v. Odell, 30 N. H. 540; Bell v. Quin, 2 Sandf. 
 (N. Y.) 146. But see Branch Bank at Mont- 
 gomery v. Crocheron, 5 Ala. 250. As to con- 
 tracts which cannot be enforced from non- 
 
 compliance with the statute of frauds, see 
 Frauds, Statute of. 
 
 Huits by third parties. It was for a long 
 time not fully settled \ otract be- 
 
 tween a and B thai ■ of them should do 
 something for the benefit of C did or did not 
 give a right of action >m the ontra< t 
 l B. & P. 98; :; Id. 1 19; but it I 
 tinctly established in England that C cannot 
 sue; 1 B. & S. 893; i\.n. i >; in 
 
 America tbe authorities are confii< 
 
 On specialties most courts do not permit a 
 suit in a third person's uame, yel ne do; 
 Poll. Contr. l-oi, citing Millard v. Baldwin, •': 
 Gray (Mass.) 484. Professor Harrimao 
 (Contracts, ch. VII), after citing the authori- 
 ties for the common-law rule that the one 
 not a party to it can enforce a contract, 
 enumerates and discusses the exceptions. 
 The only exception recognized in Massachu- 
 setts (the right to recover money in the 
 hands of the defendant which is of right the 
 property of the plaintiff), is considered no 
 real exception, as the liability is not con- 
 tractual; the right of a son to sue on a 
 promise made to a father is not now recog- 
 nized in England or in Massachusetts as it 
 formerly was, and it has no foundation in 
 principle. The broad exception existing in 
 most of the states permitting a person for 
 whose benefit a promise is made to sue upon 
 it, he considers not founded on any principle, 
 but a clear case of judicial legislation which, 
 like most arbitrary rules, has led to confu- 
 sion. He reaches the conclusion that the 
 right of a stranger to sue in certain cases is 
 recognized in New York, Missouri, Indiana, 
 Illinois, Nebraska, New Hampshire, Maine, 
 and Ithode Island, and that in Massach 
 and Michigan, as in England, the common 
 law prevails. In the federal courts he con- 
 siders the rule not clearly settled, but that 
 the general rules laid down by the supreme 
 court coincide with the common-law rule. 
 
 In Ilendrick v. Lindsay, 93 U. S. 143, 23 L. 
 Ed. 855, the court (Davis, J.) said that "the 
 right of a party to maintain assumpsit on a 
 promise not under seal made to another for 
 his benefit, although much controverted, is 
 now the prevailing rule in this country." In 
 Second Nat. Bank v. Grand Lodge, 98 V. s. 
 123, 25 L. Ed. 75, it was held that while the 
 common-law rule is that a stranger cannot 
 sue upon it, "there are confessedly many ex- 
 ceptions to it." In Pennsylvania the general 
 rule is recognized; but it Is held that where 
 mouey or property is placed by cue in the 
 possession of another, to be paid or dell 
 to a third person, the latter has a right of 
 action, being regarded as a party to the con- 
 sideration on which the undertaking rests; 
 Adams v. Kuelm, 119 Pa. '<■. 13 All. 1S4; SO, 
 also, Blymire v. Boistle, G Watts (Pa.) 1S2, 
 31 Am. Dec. 458 And a promise to one to 
 pay a debt due by him to another is valid ; 
 Hind v. Iloldship. 2 Watts (Pa.) 104, 26 Am. 
 Dec. 107. In some jurisdictions, even includ-
 
 CONTRACT 
 
 6G4 
 
 CONTRACT 
 
 ing courts adhering to the general common- 
 law rule, a third person has a right to en- 
 force a trust created for his benefit by an- 
 other person ; Union P. R. Co. v. Durant, 95 
 U. S. 576, 24 L. Ed. 391 ; Street v. McConnell, 
 16 111. 125 ; Bay v. Williams, 112 HI. 91, 1 N. 
 E. 340, 54 Am. Rep. 209; Chace v. Chapin, 
 130 Mass. 128 ; Pruitt v. Pruitt, 91 Ind. 595. 
 But see Crandall v. Payne, 154 111. 627, 39 
 N. E. 601, where it was held that when a 
 contract of sale of land from A to B recited 
 that part of the purchase money was "going 
 to C," the latter could not sue B. 
 
 See for a general discussion of the subject, 
 Southern Express Co. v. R. Co., 29 Am. L. 
 Reg. O. S. 596; 4 N. J. L. J. 197, 229; 8 
 Harv. L. Rev. 93 ; Harriman, Contr. 
 
 Construction and interpretation in refer- 
 ence to contracts. The intention of the par- 
 ties is the pole-star of construction ; but their 
 intention must be found expressed in the con- 
 tract and be consistent with rules of law. 
 The court will not make a new contract for 
 the parties, nor will words be forced from 
 their real signification. 
 
 The subject matter of the contract and the 
 situation of the parties are to be fully con- 
 sidered with regard to the sense in which 
 language is used. 
 
 The legality of the contract is presumed 
 and is favored by construction. 
 
 "Words are to be taken, if possible, in their 
 ordinary and common sense. 
 
 The whole contract is to be considered 
 with relation to the meaning of any of its 
 parts. 
 
 The contract will be supported rather 
 than defeated: ut res magis valeat quam 
 pereat. 
 
 All parts will be construed, if possible, so 
 as to have effect. 
 
 Construction is generally against the gran- 
 tor — contra proferentem — except in the case 
 of the sovereign. This rule of construction 
 is not of great importance, except in the 
 analogous case of penal statutes ; for the law 
 favors and supposes innocence. 
 
 Construction is against claims or contracts 
 which are in themselves against common 
 right or common law. 
 
 Neither bad English nor bad Latin in- 
 validates a contract ("which perhaps a class- 
 ical critic may think no unnecessary cau- 
 tion") ; 2 Bla. Com. 379; 6 Co. 59. See 
 Construction ; Interpretation. 
 
 Parties. There is no contract unless the 
 parties assent thereto ; and where such as- 
 sent is impossible from the want, immatu- 
 • rity, or incapacity of mind of one of the par- 
 ties, there can be no perfect contract. See 
 Parties. 
 
 Remedy. The foundation of the common 
 law of contracts may be said to be the giv- 
 ing of damages for the breach of contracts. 
 When the thing to be done is the payment 
 of money, damages paid in money are en- 
 tirely adequate. When, however, the con- 
 
 tract is for anything else than the payment 
 of money, the common law knows no other 
 than a money remedy : it has no power to 
 enforce a specific performance of the con- 
 tract. 
 
 The injustice of measuring all rights and 
 wrongs by a money standard, which as a 
 remedy is often inadequate, led to the estab- 
 lishment of the equity power of decreeing 
 specific performance when the remedy has 
 failed at law. For example : contracts for 
 the sale of real estate will be specifically en- 
 forced in equity ; performance will be de- 
 creed, and conveyances compelled. 
 
 Where a contract is for the benefit of the 
 contracting party, no action can be main- 
 tained by a third person who is a stranger 
 to the contract and the consideration ; Free- 
 man v. R. Co., 173 Pa. 274, 33 Atl. 1034. 
 
 As to signing a contract without reading it, 
 see Signature. 
 
 See Acceptance; Agreement; Breach; 
 Consideration; Contractual Obligation ; 
 Letter; Novation; Offer; Payment; Per- 
 formance; Satisfaction; Status. 
 
 For the early history of parol contracts, 
 see Ames, 3 Sel. Essays in Anglo-Amer. L. H. 
 304 ; Salmond, id. 321. 
 
 See Impairing Obligation of a Contract; 
 Third Parties, Contracts for. 
 
 In Roman and Mediaeval Law. "Formal contracts 
 (legitime conventiones) gave a right of action ir- 
 respective of their subject matter. In Justinian's 
 time the only form of contract in use was the Stip- 
 ulation or verbal contract by question and answer. 
 Its origin is believed to have been religious, though 
 the precise manner of its adoption remains uncer- 
 tain. It appears as a formal contract capable of 
 being applied to any kind of subject matter. Its 
 application was in time extended by the following 
 steps: 1. The question and answer were not re- 
 quired to be in Latin. 2. An exact verbal corre- 
 spondence between them was not necessary. 3. An 
 instrument in writing purporting to be the record 
 of a Stipulation was treated as strong evidence 
 of the Stipulation having taken place. Hence the 
 mediaeval development of operative writings. 
 
 "Informal agreements (pacta) did not give any 
 right of action without the presence of something 
 more than the mere fact of the agreement. This 
 something was called causa. Practically the term 
 covers a somewhat wider ground than our modern 
 'consideration executed' ; but it has no general 
 notion corresponding to it, at least none co-exten- 
 sive with the notion of contract ; it is simply the 
 mark which distinguishes any particular class 
 from the common herd of pacta and makes them ac- 
 tionable. Informal agreements not coming within 
 any of the privileged classes were called nuda pacta 
 and could not be sued on. The term nudum pactum 
 is sometimes used however with a special and rather 
 different meaning to express the rule that a con- 
 tract without delivery will not pass property. 
 
 "The further application of this metaphor by 
 speaking of the causa when it exists as the clothing 
 or vesture of the agreement is without classical 
 authority, but very common ; it is adopted to the 
 full extent by our early writers. 
 
 "The privileged informal contracts were the fol- 
 lowing: 1. Real contracts, where the causa con- 
 sisted in the delivery of money or goods ; namely, 
 mutui datio, commodatum, depositum, pignus, cor- 
 responding to our bailments. This class was ex- 
 panded within historical times to cover the so-called 
 innominate contracts denoted by the formula do ut 
 des, etc. 2. Consensual contracts, being contracts of 
 constant occurrence in daily life in which no causa
 
 CONTRACT 
 
 665 
 
 CONTRACTUAL 
 
 was required beyond the nature of the contract 
 itself. Four such contracts were recognized, the 
 first three of them at all events, from the earliest 
 times from which we knew anything, namely, Sale, 
 Hire, Partnership, and Mandate (Emptio Venditio, 
 Locatio Conductio, Societas, Mandatum). To this 
 class great additions were made in later times. 
 Subsidiary contracts (pacta adiecta) entered into at 
 the same time and in connection with contracts of 
 an already enforceable class became likewise en- 
 forceable ; and divers kinds of informal contracts 
 were specially made actionable by the Edict and 
 by imperial constitutions, the most material of these 
 being the constitutum covering the English heads of 
 account stated and guaranty. Justinian added the 
 pin lum donationis, it seems with a special view 
 to gifts to pious uses. Even after all these exten- 
 sions, however, matters stood thus: 'The Stipula- 
 tion, as the only formal agreement existing in Jus- 
 tinian's time gave a right of action. Certain par- 
 ticular classes of agreements also gave a right of 
 action even if Informally made. All other informal 
 agreements (nuda pacta) gave none. This last 
 proposition, that nuda pacta gave no right of action, 
 may be regarded as the most characteristic princi- 
 ple of the Roman law of Contract.' (Sav. Obi. 2, 
 231.) It is desirable to bear in mind that In Roman 
 and also In early English law-text nudum pactum 
 does not mean an agreement without consideration. 
 Many nuda pacta according to the classical Roman 
 law would be quite good in English law, as being 
 made on sufficient consideration ; while in many 
 cases obligations recognized by Roman law as fully 
 binding (e. g. from mandate or negotiorum gestio) 
 would be unenforceable as being without considera- 
 tion, in the common law. 
 
 " . . . In Western Christendom the natural ob- 
 ligation admitted to arise from an informal agree- 
 ment was gradually raised to full validity, and the 
 difference between pactum and legitima conventio 
 ceased to exist The process however was not com- 
 pleted until English law had already struck out 
 its own line. 
 
 "The identification of Stipulation with formal 
 writing, complete on the Continent not later than 
 the 9th Century, was adopted by our mediajval au- 
 thors." Pollock, Contracts 743. 
 
 CONTRACT LABOR ACT. See Labor. 
 
 CONTRACTION (Lat. con, together, traho, 
 to draw). A form of a word abbreviated by 
 the omission of one or more letters. This 
 was formerly much practised, but in modern 
 times has fallen into general disuse. Much 
 information in regard to tbe rules for con- 
 traction is to be found in the Instructor 
 Clerical is. 
 
 CONTRACTOR. One who outers into a 
 contract. Generally used of those who un- 
 dertake to do public work or tbe work for a 
 company or corporation on a large scale, or 
 to furnish goods to another at a fixed or as- 
 certained price. 2 Pard. n. 300. See Sulli- 
 van v. Johns, 5 Wbart. (Pa.) 366; Mason v. 
 U. S., 1-4 Ct. CI. 59; Neal v. U. S., id. 280; 
 Merriam v. U. S., id. 289; Carr v. U. s., 13 
 Ct. CI. 13G; Denver Tacific Ry. Co. v. U. S., 
 id. 392. As to liability of a party for tbe 
 negligence of a contractor employed by him, 
 see Independent Contk.u roa. 
 
 CONTRACTUAL. Of the nature of or per- 
 taining to a contract, as, contractual liability 
 or contractual obligation, which see. A term 
 used by writers on the Roman law to desig- 
 nate the class of obligations described in the 
 classification of the civilians as ex contractu. 
 
 and recently much used in English and Amer- 
 ican law in connection with the more modem 
 method of classifying contracts referred to in 
 connection with Quasi-Contract, See Con- 
 tract. 
 
 CONTRACTUAL OBLIGATION. The ob- 
 ligation which arises from a contract or 
 
 agreement. 
 
 In the Roman law the expression was a familiar 
 one, and, taking the result of the discussions of the 
 subject by writers on the civil law, and keeping In 
 view both the etymology and the use of the word 
 obligation, we may define it, as there used, to be a 
 tie binding one to the performance of a duty arising 
 from the agreement of parties. 
 
 The term is resorted to as a relief from what he 
 considers the misuse of the word contract and the 
 difficulty of defining It, by Prof. Harriman, who uses 
 it in this sense: "Nevertheless in the case of many 
 'contracts,' using the word in its broadest sense, we 
 find existing an obligation with certain definite 
 characteristics which can easily be recognized. 
 This obligation we shall venture to call contractu- 
 al." He divides "the endless variety of obligations 
 which the courts enforce" into irrecusable and re- 
 cusable obligations. The former are those which 
 are imposed upon the person without his consent 
 and without regard to any act of his own; the 
 latter are the result of a voluntary act on the part 
 of the person on whom they are Imposed. These 
 terms are adopted by him from an article by Profes- 
 sor John II. Wigmore in 8 Harv. L. Rev. 200, and 
 he again divides recusable obligations into definite 
 and indefinite, meaning thereby to express whether 
 the extent of the undertaking is determined by the 
 act of the party upon whom the obligation rests 
 or not; and to differentiate still further the precise 
 character of definite recusable obligations, which 
 he terms contractual obligations, Professor Harri- 
 man originates the terms unifactoral and bifactoral, 
 as the obligation is created by the act of the party 
 bound, or requires two acts, one by the party bound 
 and the other by the party to be benefited. The 
 term contractual was of constant use by writers on 
 the civil law, and Maine, in his Early Law and 
 Custom, refers to the German Salic Law as elab- 
 orately discussing contractual obligation. Professor 
 Harriman's definition of this term is "that obliga- 
 tion which is imposed by the law In consequence of 
 a voluntary act, and which is determined as to its 
 nature and extent by that act." Harr. Cont. 27. 
 The idea of contractual obligation he thinks was 
 unknown to our Anglo-Saxon ancestors ; id. 15. It 
 is undoubtedly true, as Professor Harriman i 
 that the best considered theory of contract at the 
 present time has been a slow and tedious develop- 
 ment; but it is equally true that among the writers 
 who have given most attention to the study of the 
 historical development of the law there remain 
 wide differences of opinion as to the time and >man- 
 ner of its development. It is likewise to be ob- 
 served that the theories of Professor Harriman and 
 those who have preceded him, in the views which 
 he has so logically and comprehensively treated, 
 do in fact include much that Is familiar to the 
 student of the Roman law, while there is exhibited 
 a reluctance to give to that system due credit for 
 the principles which were fully developed in It. 
 In his preface the author here cited quotes with 
 approval the remark of Sir F. Pollock, that English 
 must seek a genuine philosophy 
 of the common law, and not be put off with a sur- 
 face dressing of Romanized generalities." It may 
 be suggested that when, after centuries of an unsci- 
 entific development of the English law of contract 
 (due to causes which Professor Harriman well 
 sketches in Part II. of his introduction), what seems 
 to be not only a better, but the true theory has 
 come to be recognized and dev< loped ; the coin- 
 cidence of that theory with the root idea of the sub- 
 Ject, as expressi d in so scientific a system as the 
 Roman law, should be acknowledged and utilized, 
 rather than ignored, or characterized as "recasting
 
 CONTRACTUAL OBLIGATION 
 
 666 
 
 CONTRIBUTION 
 
 English ideas and institutions in a Roman mould." 
 It may be safely asserted that neither contract nor 
 contractual obligation is an English idea or insti- 
 tution, but an idea of human civilization. Maine 
 says we have no society disclosed to us destitute 
 of the conception ; Anc. Law 303. It is equally 
 creditable to us to have discovered and developed 
 the correct idea of it after it has been overlaid 
 with the misconceptions of the common law, as to 
 its true nature, as it was to the Civilians to have 
 formulated it correctly as part of their scientifically 
 constructed system. That a concurrence is reached 
 by these distinct processes is strong confirmation of 
 the accuracy of the result. The reader is also re- 
 ferred to Keener, Quasi-Contracts ; Holmes, Com- 
 mon Law ; Sandars, Inst, of Justinian ; Howe, 
 Studies in the Civil Law, which contains a state- 
 ment of the subject of obligations in the Roman law. 
 
 CONTRADICT. To prove a fact contrary 
 to what has been asserted by a witness. 
 
 A party cannot impeach the character of 
 his witness, but may contradict him as to 
 any particular fact ; 1 Greenl. Ev, § 443 ; 3 
 B. & C. 746 ; Lawrence v. Barker, 5 Wend. 
 (N. T.) 305; Stockton v. Demuth, 7 Watts 
 (Pa.) 39, 32 Am. Dec. 735; Brown v. Bel- 
 lows, 4 Pick. (Mass.) 179, 194; Dennett v. 
 Dow, 17 Me. 19. 
 
 CONTRAESCRITURA. In Spanish Law. 
 
 Counter-letter. An instrument, usually exe- 
 cuted in secret, for the purpose of showing 
 that an act of sale, or some other public in- 
 strument, has a different purpose from that 
 imported on its face. Acts of this kind, 
 though binding on the parties, have no effect 
 as to third persons. 
 
 CONTRAFACTIO (Lat). Counterfeiting: 
 as, contrafaciio sigilli regis (counterfeiting 
 the king's seal). Cowell ; Beg. Orig. 42. See 
 Counterfeit. 
 
 C0NTRAR0TULAT0R (Fr. contrerou- 
 lewr). A controller. One whose business it 
 was to observe the money which the col- 
 lectors had gathered for the use of the king 
 or the people. Cowell. 
 
 C0NTRAR0TULAT0R PIP/E. An officer 
 of the exchequer that writeth out summons 
 twice every year to the sheriffs to levy the 
 farms (rents) and debts of the pipe. Blount. 
 
 CONTRAVENTION. In French Law. An 
 
 act which violates the law, a treaty, or an 
 agreement which the party has made. That 
 infraction of the law punished by a fine 
 which does not exceed fifteen francs and by 
 an imprisonment not exceeding three days. 
 
 CONTRE-MAITRE. In French Law. The 
 
 second officer in command of a ship. 
 
 C0NTRECTATI0. In Civil Law. The re- 
 moval of a thing from its place amounting 
 to a theft The offence is purged by a res- 
 toration of the thing taken. Bowy. Com. 
 268. 
 
 C0NTREFAQ0N. In French Law. The 
 
 offence of those who print or cause to be 
 printed, without lawful authority, a book of 
 which the author or his assigns have a copy- 
 right. Merlin, R6pert. 
 
 CONTRIBUTION. Payment by one or 
 more persons who are liable, in company 
 with others, of a proportionate part of the 
 whole liability or loss, to one or more of the 
 parties so liable upon whom the whole loss 
 has fallen or who has been compelled to dis- 
 charge the whole liability ; Dupuy v. John- 
 son, 1 Bibb (Ky.) 562; Lawrence v. Cornell, 
 4 Johns. Ch. (N. Y.) 545; Pars. Part. 198. 
 
 "The principle is that parties having a 
 common interest in a subject-matter shall 
 bear equally any burden affecting it Qui 
 sentit commodum sentire debet et onus. 
 Equality is equity. One shall not bear a 
 common burden in ease of the rest. Hence, 
 if, (as often may be done), a lien, charge, or 
 burden of any kind, affecting several, is en- 
 forced at law against one only, he should 
 receive from the rest what he has paid or 
 discharged on their behalf. This is the doc- 
 trine of equitable contribution, resting on 
 as simple a principle of natural justice as 
 can be put." Per Bates, Ch., in Eliason v. 
 Eliason, 3 Del. Ch. 260; 3 Co. 11 ft; 1 Cox, 
 C. C. 318 ; 1 B. & P. 270 ; 1 Sto. Eq. 477 ; 1 
 Wh. & Tud. L. Cas. in Eq. 66. Though its 
 most common application is to sureties and 
 owners of several parcels of land subject to 
 a lien, the application of the principle is 
 said to be universal by Lord Redesdale in 3 
 Bligh 59; and it applies equally to dower 
 as to other incumbrances ; Eliason v. Eliason, 
 3 Del. Ch. 260 ; Bank of United States v. Del- 
 orac's Ex'rs, Wright (Ohio) 285. 
 
 A right to contribution exists in the case 
 of debtors who owe a debt jointly which 
 has been collected from one of them ; Davis 
 v. Burnett, 49 N. C. 71, 67 Am. Dec. 263; 
 Haupt v. Mills, 4 Ga. 545 ; Mills v. Hyde, 19 
 Vt. 59, 46 Am. Dec. 177; Norton v. Coons, 3 
 Denio (N. Y.) 130; Fletcher v. Brown, 7 
 Humphr. (Tenn.) 385. See Russell v. Failor, 
 1 Ohio St. 327, 59 Am. Dec. 631. It also ex- 
 ists where land charged with a legacy, or the 
 portion of a posthumous child, descends or 
 is devised to several persons, when the share 
 of each is held liable for a proportionate 
 part; Armistead v. Dangerfield, 3 Munf. 
 (Va.) 20, 5 Am. Dec 501 ; Stevens v. Cooper, 
 1 Johns. Ch. (N. Y.) 425, 7 Am. Dec. 499; 
 Blaney v. Blaney, 1 Cush. (Mass.) 107; Tay- 
 lor v. Taylor, 8 B. Monr. (Ky.) 419, 48 Am. 
 Dec. 400. As to contribution under the mari- 
 time law, see General Average. 
 
 Originally this right was not enforced at 
 law, but courts of common law in modern 
 times have assumed a jurisdiction to com- 
 pel contribution among sureties in the ab- 
 sence of any positive contract, on the ground 
 of an implied assumpsit, and each of the 
 sureties may be sued for his respective quota 
 or proportion; Wh. & Tud. Lead. Cas. 66 ; 
 Carroll v. Bowie, 7 Gill (Md.) 34; Ellicott 
 v. Nichols, 7 Gill (Md.) 85, 48 Am. Dec. 546; 
 Lindell v. Brant, 17 Mo. 150. The remedy in 
 equity is, however, much more effective ; 
 Couch v. Terry's Adm'rs, 12 Ala. 225; Mo-
 
 CONTRIBUTION 
 
 6G7 
 
 CONTRIBUTION 
 
 Kenna v. George, 2 Rich. Eq. (S. C.) 15; 
 Bisp. Eq. § 329. For example, a surety who 
 pays an entire debt can, in equity, compel 
 the solvent sureties to contribute towards 
 the payment of tbe entire debt; 1 Ch. Cas. 
 346; Finch 15, 203 ; while at law he can re- 
 cover no more tnan an aliquot part of the 
 whole, regard being bad to the number of 
 co-sureties ; 2 B. & P. 208 ; 6 B. & C. 097 ; 
 Powers v. Gowen, 32 Me. 381. See Subroga- 
 tion. See, as to co-sureties, 1 Lead. Cas. Eq. 
 100. 
 
 There is no contribution, as a general rule, 
 between joint tort-feasors; 8T.R. 180; Nich- 
 ols v. Nowling, 82 Ind. 488; Percy v. Clary, 
 32 Md. 24",; Miller v. Fenton, 11 Paige (N. 
 Y.) 18; Jacobs v. Pollard, 10 Cush. (Mass. i 
 287, 57 Am. Dec. 105; Acheson v. Miller, 2 
 Ohio St. 203, 59 Am. Dec. 003; but tbis rule 
 does not apply wben the person seeking re- 
 dress did not in fact know that the act was 
 unlawful, and is not chargeable with knowl- 
 edge of that fact; 4 Biug. 72; Moore v. Ap- 
 pleton, 20 Ala. 033; Bailey v. Bussing, 28 
 Conn. 455; Armstrong County v. Clarion 
 County, 60 Pa. 218, 5 Am. Rep. 30S. 
 
 It is not the admiralty rule; Erie R. Co. 
 v. Transp. Co., 204 U. S. 225, 27 Sup. Ct. 240, 
 51 L. Ed. 450. 
 
 The rule against contribution between 
 wrongdoers is not universal. If tbe parties 
 are not equally at fault, the principal delin- 
 quent may be responsible to the others for 
 damages incurred by their joint offence. 
 With respect to offences in which is involved 
 any moral delinquency, all parties are equal- 
 ly guilty, and the courts will not inquire in- 
 to their relative guilt. But where the offence 
 is merely malum prohibitum and in no sense 
 immoral, the court will inquire into their 
 relative delinquency and administer justice 
 between them; Lowell v. R. Co., 23 Pick. 
 (Mass.) 32, 34 Am. Dec. 33, cited in Washing- 
 ton Gas Co. v. Dist. of Columbia, 101 U. S. 
 316, 327, 16 Sup. Ct. 564, 40 L. Ed. 712, where 
 it is said that the cases are too numerous for 
 citation; they are collected in Whart Negt 
 24G ; 2 Thomp. Nog. 789, 1061 ; 2 Dill. Mun. 
 Corp. § 1035. 
 
 The rule stated also fails when the injury 
 grows out of a duty resting primarily upon 
 one of the parties, and but for his negligence 
 there would have been no cause of action 
 against the other. A servant is consequent- 
 ly liable to his master for the damages re- 
 covered against the latter in consequence 
 of the negligence of the servant; Merry- 
 weather v. Nixan, 2 Sm. Lead. Cas. 483. 
 Where a recovery is had against a municipal 
 corporation for an injury resulting from an 
 obstruction to the highway, or other nui- 
 sance, occasioned by the act or default of its 
 servant, or even of a citizen, the municipality 
 has a right of action against the wrongdoer 
 for indemnity; Chicago v. Robbins, 2 Black 
 (U. S.) 418, 17 L. Ed. 29S. 
 In Civil Law. A partition by which the 
 
 creditors of an insolvent debtor divide among 
 themselves the proceeds of his property pro- 
 portionably to the amount of their respective 
 credits. La. Code, art. 2522, n. 10. It is a 
 division pro rata. Merlin, 7?'. 
 
 CONTRIBUTORY. A person liable to con- 
 tribute to the assets of a company which is 
 being wound up, as being a member or (in 
 some cases) a past-member thereof. 3 E 
 Com. 24; Moz. & W. Law 1 1 
 
 NEGLIGENCE. 
 
 See 
 
 CONTRIBUTORY 
 
 Negligenc k. 
 
 CONTROLLER. A comptroller, which see. 
 
 CONTROVER. One who invents false 
 news. Co. 2d Inst. 227. 
 
 CONTROVERSY. A dispute arising be- 
 tween two or more persons. 
 
 In the federal jurisdiction clause relating 
 to controversies "between two or more 
 states," etc., it means those that are Justici- 
 able between the parties thereto. Louisiana 
 v. Texas, 176 U. S. 1, 24, 20 Sup. Ct. 251, 44 
 L. Ed. 347. 
 
 It differs from case, which includes all suits, 
 criminal as well as civil; whereas controversy Is a 
 civil and not a criminal proceeding; Chisholm v. 
 Georgia, 2 Dall. (U. S.) 419, 431, 43^, 1 L. Ed. 440; 
 1 Tuck. Bla. Com. App. 420, «2L 
 
 By the constitution of the United States, the Ju- 
 dicial power extends to controversies to which the 
 United States shall be a party. Art. III. sec. 2. 
 The meaning to be attached to tbe word contro- 
 versy in the constitution is that above given. 
 
 C0NTUBERNIUM. In Civil Law. A mar- 
 riage between two slaves; it was not a legal 
 relation, and the children were not I 
 mate. Bryce, Studies in Hist, etc., E 
 XVI. 
 
 C0NTUMACE CAPIENDO. A writ pro- 
 vided by 53 Geo. III. c. 127, in place of the 
 writ de excommunicato capiendo to enable 
 Ecclesiastical Courts to enforce an appear- 
 ance and punish for contempt. 1 Holdsw. 
 Hist. Engl. Law App. XV II I. See Excom- 
 munication. 
 
 CONTUMACY (Lat, contumacia, disobedi- 
 ence). The refusal or neglect of a party ac- 
 cused to appear or answer to a charge pre- 
 ferred against him in a court of jus:. 
 
 Actual contumacy is the refusal of a party 
 actually before the court to obey some order 
 of the court 
 
 Presumed contumacy is the act of refus- 
 ing or declining to appear upon being 
 3 Curt. Ecc. 1. 
 
 One who has been convicted hi contuma- 
 ciam in a foreign country is to be regarded, 
 not as convicted of, but only charged with, 
 the offence: Ward. C. .1.. in Bx parte Piidera, 
 i<;2 Fed. 591, adopting Mo.. re, Extrad. art 
 
 ioa 
 
 C0NTUMAX. One accused of a crime who 
 refuses to appear and answer to the charge. 
 An outlaw. 
 
 CONTUSION. In Medical Jurisprudence. 
 
 An injury or lesion, arising from the shock
 
 CONTUSION 
 
 668 
 
 CONVENTION PARLIAMENTS 
 
 of a body with a large surface, which pre- 
 sents no loss of substance and no apparent 
 wound. If the skin be divided, the injury 
 takes the name of a contused wound. See 4 
 C. & P. 381, 558, 5G5; 6 id. 084; Thomas, 
 Med. Diet, sub v.; 2 Beck, Med. Jur.. 18, 23. 
 
 CONUSANCE, CLAIM OF. See Cogni- 
 zance. 
 
 CONUSANT. One who knows; as, if a 
 party knowing of an agreement in which he 
 has an interest makes no objection to it, he 
 is said to be conusant. Co. Litt. 157. 
 
 CONUSOR. A cognizor. 
 
 CONVENE. In Civil Law. To bring an 
 action. 
 
 CONVENTICLE. A private assembly of a 
 few folks under pretence of exercise of re- 
 ligion. The name was first given to the meet- 
 ings of Wickliffe, but afterwards applied to 
 the meetings of the non-conformists. Cowell. 
 
 The meetings were made illegal by 16 Car. II. c. 4, 
 and the term in its later signification came to de- 
 note an unlawful religious assembly. 
 
 CONVENTIO (Lat. a coming together). 
 In Canon Law. The act of summoning or 
 calling together the parties by summoning 
 the defendant. 
 
 When the defendant was brought to answer, he 
 was said to be convened, — which the canonists called 
 conventio, because the plaintiff and defendant met 
 to contest. Story, Eq. PI. 402. 
 
 In Contracts. An agreement; a covenant. 
 Cowell. 
 
 Often used In the maxim conventio vincit legem 
 (the express agreement of the parties supersedes 
 the law). Story, Ag. § 368. But this maxim does 
 not apply, it is said, to prevent the application of 
 the general rule of law. Broom, Max. 690. See 
 Maxims. 
 
 CONVENTION. In Civil Law. A general 
 term which comprehends all kinds of con- 
 tracts, treaties, pacts, or agreements. The 
 consent of two or more persons to form with 
 each other an engagement, or to dissolve or 
 change one which they had previously formed. 
 Domat, 1. 1, t. 1, s. 1 ; Dig. lib. 2, t 14, 1. 1 ; 
 lib. 1, t. 1, 1. 1, 4 and 5. 
 
 In Legislation. This term is applied to a 
 meeting of the delegates elected by the people 
 for other purposes than usual legislation. It 
 is used to denote an assembly to make or 
 amend the constitution of a state ; also an 
 assembly of the delegates of the people to 
 nominate candidates to be supported at an 
 election. As to the former use, see Jameson, 
 Constit. Conv. ; Cooley, Const. Lim. ; Con- 
 stitutional Convention. 
 
 CONVENTION PARLIAMENTS. Parlia- 
 ments which met in 16GO (and restored 
 Charles II) and in 1688-9 (and brought Wil- 
 . liam and Mary to the throne). So called 
 because they were not summoned by the 
 king's writ. The acts of the former were 
 confirmed by the succeeding Parliament sum- 
 moned in due form, but this was not deemed 
 
 necessary as to those of the latter. Tasw.- 
 Langmead, Engl. Const. Hist 575. 
 
 CONVENTIONAL. Arising from, and de- 
 pendent upon, the act of the parties, as dis- 
 tinguished from legal, which is something 
 arising from act of law. 2 Bla. Com. 120. 
 
 CONVENTIONES LEGITIM/E. See Con- 
 tract. 
 
 CONVENTUS (Lat. convenire). An as- 
 sembly. Conventus magnatum vel proevrum. 
 An assemblage of the chief men or nobility ; 
 a name of the English parliament 1 Bla. 
 Com. 248. 
 
 In Civil Law. A contract made between 
 two or more parties. 
 
 A multitude of men, of all classes, gather- 
 ed together. 
 
 A standing in a place to attract a crowd. 
 
 A collection of the people by fhe magis- 
 trate to give judgment. Calvinus, Lex. 
 
 CONVENTUS JURIDICUS. A Roman 
 provincial court for the determination of 
 civil causes. 
 
 CONVERSANT. One who is in the habit 
 of being in a particular place is said to be 
 conversant there. Barnes 162. 
 
 Acquainted ; familiar. 
 
 CONVERSION. In Equity. The exchange 
 of property from real to personal or from 
 personal to real, which takes place under 
 some circumstances in the consideration of 
 the law, such as, to give effect to directions 
 in a will or settlement, or to stipulations in 
 a contract, although no such change has 
 actually taken place. 1 Bro. C. C. 497; 1 
 Lead. Cas. Eq. 619 ; id. S72 ; Lawrence v. 
 Elliott, 3 Redf. (N. Y.) 235; Dodge v. 
 Williams, 46 Wis. 70, 1 N. W. 92, 50 N. W. 
 1103 ; Maddock v. Astbury, 32 N. J. Eq. 181. 
 
 A qualified conversion is one directed for 
 some particular purpose ; Harker v. Reilly, 
 4 Del. Ch. 72. Where the purpose of conver- 
 sion totally fails no conversion takes place, 
 but the property remains in its original state, 
 but where there is a partial failure of the 
 purpose of conversion of land the surplus re- 
 sults to the heir ; 1 Bro. C. C. 503 ; as mon- 
 ey and not as land, and therefore if he be 
 dead it will pass to his personal representa- 
 tives even If the land were sold in his life- 
 time; 4 Madd. 492. The English authorities 
 strongly favor the heir, and the authorities 
 are collected by Bispham (Eq. pt. ii. ch. 
 v.) and by Bates, Ch. (Harker v. Reilly, 4 
 Del. Ch. 72), who held that where there was 
 a qualified conversion by will, if one of the 
 legacies fail, whether it be void ab origine or 
 lapse, that portion of the fund which fails of 
 its object will result to the party who would 
 have been entitled to the real estate unsold. 
 Bispham considers the American authorities 
 less favorable to the heir than the English, 
 citing Craig v. Leslie, 3 Wheat. (U. S.) 563, 
 4 L. Ed. 460, where it was held that if the 
 intent of the testator appears to have been
 
 CONVERSION 
 
 6G9 
 
 CON 
 
 to stamp upon the proceeds of the land de- 
 scribed to be sold the character of person- 
 alty, to all intents and purposes the claim 
 of the heir is defeated and the estate is con- 
 sidered personal (see also Morrow v. B ren- 
 der, 2 Rawle [Pa.] 185). But in the Dela- 
 ware case cited it was considered that the 
 English doctrine of qualified conversion was 
 fully sustained by the American cases at 
 large as collected in the American note to 
 Ackroyd v. Smithson, 1 Wh. & Tud. L. Cas. 
 In Eq. 500; and fhe case cited by Bispham 
 from 3 Wheat., as appears from the foregoing 
 Btatement of it, does not conflict with the 
 English doctrine, as it is expressly limited 
 to cases in which the intention is clear that 
 the heir shall not take. 
 
 Land is held to be converted into money, 
 In equity, when the owner has contracted 
 to sell; and if he die before making a con- 
 veyance, his executors will be entitled to 
 the money, and not his heirs; 1 W. Bla. 129; 
 Masterson v. Pullen, 02 Ala. 145. 
 
 When land is ordered by a will to be sold, 
 It is regarded as converted into personalty; 
 Hough's Estate, 3D.R. (Pa.) 187; so of a 
 direction to sell after 20 years; Ilandley v. 
 Palmer, 103 Fed. 39, 43 C. C. A. 100; but a 
 mere power of sale will not have that effect 
 until it is exercised; Chew v. Nicklin, 45 Pa. 
 84. Lands taken under the right of eminent 
 domain are converted. 
 
 Money may be held to be converted into 
 land under various circumstances : as where, 
 for example, a man dies before a conveyance 
 is made to him of land which he has bought. 
 1 P. Wms. 176 ; Peter v. Beverly, 10 Pet. (U. 
 S.) 563, 9 L. Ed. 522. See Giraud v. Giraud, 
 58 How. Pr. (N. Y.) 175; Orrick v. Boehm, 
 49 Md. 72. 
 
 Where land forming part of a decedent's 
 estate is sold in foreclosure to pay off a debt, 
 the sale converts the real estate into money. 
 But the conversion is effectual only to the 
 extent and for the purposes for which the 
 sale was authorized, whether by will or by 
 the order of the court. So far as these pur- 
 poses do not extend, and in so far as any of 
 them do not take effect, in fact or in law, the 
 property retains its former character in re- 
 spect of the rights of its owner and passes 
 accordingly; 2 Woerner, Am. L. of Adm. § 
 4S1; Kitchens v. Jones, 87 Ark. 502, 113 S. 
 W. 20, 19 L. R. A. (N. S.) 723, 128 Am. St. 
 Rep. 36. 
 
 In case of foreclosure of a mortgage, as to 
 whether the heir or personal representative 
 takes the surplus depends upon whether the 
 mortgagor died before or after the foreclo- 
 sure; 2 Sim. St. 323; although in one case, 
 where foreclosure was before mortgagor's 
 death, still it was held that the surplus went 
 to his heirs; 124 L. T. 503. A conditional <li- 
 rection to sell land can cause no equitable 
 conversion until the condition is satisfied; 
 L. R. 26 Ch. Div. 601. 
 
 When a binding option for the purchase of 
 
 land is not exercised until after the death 
 of the vendor, the conversion relates back as 
 between the heir and the personal repre- 
 sentative to the date of the contract by 
 which the option w. 
 
 D'Arras v. Keyser, 2<; Pa _ port Wa- 
 
 ter-Works v. Sisson, 18 R. I. 411, 28 At! 
 contra, Smith v. Loewensteln, 50 Ohio 
 ::i X. E. 15a 
 
 Courts of equity have power to order the 
 conversion of property held in a I 
 real estate into personal estate, or 
 when sueh conversion is not in conflict with 
 the will of the testator, expressly or by im- 
 plication, and is for the interest of the i 
 (/tic trust; Ex parte Jordan, 4 Del. Ch 
 Johnson v. Payne, 1 Hill (S. C.) 112. The 
 English court of chancery largely exercised 
 this jurisdiction; 2 Sto. Eq. Jur. § 1357; 6 
 Ves. Jr. 6; 6 Madd. 100. 
 
 At Law. An unauthorized assumption and 
 exercise of the right of ownership over goods 
 or personal chattels belonging to another, to 
 the alteration of their condition or the ex fu- 
 sion of the owner's rights. Stickney v. Mon- 
 roe, 44 Me. 197; Gilman v. Hill, 30 X. B. 
 311 ; Aschermann v. Brewing Co., 45 Wis. 
 262. 
 
 A constructive conversion takes place 
 when a person does such acts in reference to 
 the goods or personal chattels of another as 
 amount, in view of the law, to appropriation 
 of the property to himself. 
 
 A direct conversion takes place when a 
 person actually appropriates the property of 
 another to his own beneficial use and enjoy- 
 ment, or to that of a third person, or destroys 
 it, or alters its nature. 
 
 Every such unauthorized taking of per- 
 sonal property ; Pollock, Torts 435 ; Kennet 
 v. Robinson, 2 J. J. Mar. iKy.) 84; Hutchin- 
 son v. Bobo, 1 Bailey (S. C.) 546; Murray v. 
 Burling, 10 Johns. (N. Y.) 172; Howitt v. 
 Estelle, 92 111. 218; and all intermeddling 
 with it beyond the extent of authority con- 
 ferred, in case a limited authority over it 
 has been given; Cummings v. Perharn, 1 
 Mete. (Mass.) 555; Grant v. King, 14 Vt. 367 ; 
 Seymour v. Ives, 46 Conn. 109; People v. 
 Bank, 7."> X. Y. .".17: Liptrot v. Holmes. 1 Ga. 
 381; with intent so to apply or dispose of 
 it as to alter its condition or interfere with 
 the owner's dominion; Stevens v. Curtis. IS 
 Pick. (Mass.) 227; 8 M. & W. 540; consti- 
 tutes a conversion, including a taking by 
 those claiming without right to be assignees 
 in bankruptcy. 3 Brod. & B. '_' : using a 
 thing without license of the owner: Holland 
 v. Osgood, S vt. I'M: Bilsbury v. tfcCoon, «'. 
 Hill (X. Y.) -i-~>. 41 Am. Dec. 7.":;; Johnson 
 v. Weedman, 4 Scam. (111.) 495; Scruggs v. 
 Davis. 5 Sneed (Tenn.) 261; Johnson's Adm'rs 
 v. The Arabia, 24 Mo. SO; or in excess of the 
 license: Hart v. Skinner. 16 Vt. 138, 42 Am. 
 Dec. 500: Wheelocb v. Wheelwright. 5 M;i<s. 
 104 ; Disbrow v. Ten Broeck, 4 E. D. Sm. (N.
 
 CONVERSION 
 
 670 
 
 CONVERSION 
 
 Y.) 397; Creach v. McRae, 50 N. C. 122; 
 misuse or detention by a finder or other 
 bailee; Wheelock v. Wheelwright, 5 Mass. 
 104 ; Marriam v. Yeager, 2 B. Mbnr. (Ky.) 
 339; Cargill v. Webb, 10 N. H. 199; Ripley 
 v. Dolbier, 18 Me. 3S2; Spencer v. Pilcher, 
 8 Leigh (Va.) 565; Gentry v. Madden, 3 Ark. 
 127; Horsely v. Branch, 1 Humph. (Tenn.) 
 199; Disbrow v. Ten Broeck, 4 E. D. Sm. 
 (N. Y.) 397; Fail v. McArthur, 31 Ala. 26; 
 see Harvey v. Epes, 12 Gratt. (Va.) 153 ; de- 
 livery by a bailee in violation of orders; St. 
 John v. O'Connel, 7 Port. (Ala.) 466; non- 
 delivery by a wharfinger, carrier, or other 
 bailee; Langford v. Cuinmings, 4 Ala. 46; 
 Judah v. Kemp, 2 Johns. Cas. (N. Y.) 411; 
 Ewart v. Kerr, Rice (S. 0.) 204 ; Greenfield 
 Bank v. Leavitt, 17 Pick. (Mass.) 1, 28 Am. 
 Dec. 268; a wrongful sale by a bailee, under 
 some circumstances ; 10 M. & W. 576 ; 11 id. 
 363 ; Everett v. Coffin, 6 Wend. (N. Y.) 603, 
 22 Am. Dec. 551; Carraway v. Burbank, 12 
 N. C. 306 ; Howitt v. Estelle, 92 111. 21S ; Bay- 
 lis v. Cronkite, 39 Mich. 413 ; a sale of stolen 
 goods by an auctioneer, though made without 
 notice of the lack of title ; [1S92] 1 Q. B. 495 ; 
 where one, who has authority to sell, sells 
 below the authorized price, it does not con- 
 stitute conversion; Sarjeant v. Blunt, 16 
 Johns. (N. Y.) 74 ; contra, Chase v. Basker- 
 ville, 93 Minn. 402, 101 N. W. 950. It is not 
 conversion to sell for credit, when authorized 
 to sell only for cash ; Loveless v. Fowler, 79 
 Ga. 134, 4 S. E. 103, 11 Am. St. Rep. 407; 
 but exchanging the goods has been held a 
 conversion ; Ainsworth v. Partillo, 13 Ala. 
 460 ; a failure to sell when ordered ; Barton 
 v. White's Adm'r, 1 Harr. & J. (Md.) 579; 
 Ainsworth v. Partillo, 13 Ala. 460 ; improper 
 or informal seizure of goods by an officer ; 
 Sanborn v. Hamilton, 18 Vt. 590; Reynolds 
 v. Shuler, 5 Cow. (N. Y.) 323 ; Burk v. Bax- 
 ter, 3 Mo. 207; Martin v. England, 5 Yerg. 
 (Tenn.) 313; Burgin v. Burgin, 23 N. C. 453; 
 Calkins v. Lockwood, 17 Conn. 154, 42 Am. 
 Dec. 729; Fiedler v. Maxwell, 2 Blatchf. 
 552, Fed. Cas. No. 4,760; Ferguson v. Clif- 
 ford, 37 N. H. 86 ; informal sale by such of- 
 ficer ; Pierce v. Benjamin, 14 Pick. (Mass.) 
 356, 25 Am. Dec. 396 ; or appropriation to 
 himself ; Perkins v. Thompson, 3 N. H. 144 ; 
 as against such officer in the last three cases ; 
 the adulteration of liquors as to the whole 
 quantity affected; 3 A. & E. 306; Young v. 
 Mason, 8 Pick. (Mass.) 551; an excessive levy 
 on a defendant's goods, followed by a sale ; 
 6 Q. B. 381 ; but not including a mere tres- 
 pass with no further intent; 8 M. & W. 540: 
 Stevens v. Curtis, 18 Pick. (Mass.) 227 ; nor an 
 accidental loss by mere omission of a car- 
 rier; 2 Greenl. Ev. §643; 5 Burr. 2825; 
 Dwight v. Brewster, 1 Pick. (Mass.) 50, 11 
 Am. Dec. 133; Hawkins v. Hoffman, 6 Hill 
 (N. Y.) 586, 41 Am. Dec. 767 ; nor mere non- 
 feasance; 2 B. & P. 438; Cairnes v. Bleecker, 
 
 12 Johns. (N. Y.) 300. A manual taking is 
 not necessary. 
 
 Trover will lie for the value of property il- 
 legally withheld under an unlawful claim 
 for freight charges ; Marsh v. R. Co., 9 Fed. 
 873; Richardson v. Rich, 104 Mass. 156, 6 
 Am. Rep. 210; Beasley v. R. Co., 27 App. D. 
 
 C. 595, 6 L. R. A. (N. S.) 1048; though the 
 refusal to surrender was conditional, for the 
 purpose of ascertaining whether the bill of 
 lading or the waybill was the true statement 
 of the sum due; Beasley v. R. Co., 27 App. 
 
 D. C. 595, 6 L. R. A. (N. S.) 1048. It is not 
 conversion for a common carrier, who has 
 received property from one not rightfully 
 entitled to its possession, to deliver it in ac- 
 cordance with the contract of carriage, un- 
 less the true owner intervenes before the 
 goods are delivered and demands them ; 
 Shellnut v. R. Co., 131 Ga. 404, 62 S. E. 294, 
 IS L. R. A. (N. S.) 494 ; Gurley v. Armstead, 
 148 Mass. 267, 19 N. E. 389, 2 L. R. A. 80, 12 
 Am. St. Rep. 555; Burditt v. Hunt, 25 Me. 
 419, 43 Am. Dec. 289; contra, Southern Ex- 
 press Co. v. Palmer, 48 Ga. 85. 
 
 Where the carrier has been notified by the 
 true owner while the goods are still in its 
 possession, however, it is a conversion to 
 deliver them according to the directions of 
 the shipper; Atchison, T. & S. F. R. Co. v. 
 Jordon, 67 Kan. 86, 72 Pac. 533 ; Charleston 
 & W. C. R. Co. v. Pope, 122 Ga. 577, 50 S. E: 
 374. 
 
 The intention required is simply an intent 
 to use or dispose of the goods, and the knowl- 
 edge or ignorance of the defendant as to their 
 ownership has no influence in deciding the 
 question of conversion ; Lee v. McKay, 25 N. 
 C. 29 ; Thayer v. Wright, 4 Denio (N. Y.) 180 ; 
 Thrall v. Lathrop, 30 Vt. 307, 73 Am. Dec. 
 300; Riley v. Water Power Co., 11 Cush. 
 (Mass.) 11; Newkirk v. Dalton, 17 111. 413; 
 Bartlett v. Hoyt, 33 N. H. 151. 
 
 A license may be presumed where the tak- 
 ing was under a necessity, in some cases ; 
 6 Esp. 81; or, it is said, to do a work of 
 charity ; 2 Greenl. Ev. § 643 ; or a kindness 
 to the owner; 4 Esp. 195; Sparks v. Purdy, 
 11 Mo. 219 ; Plumer v. Brown, 8 Mete. (Mass.) 
 578 ; without intent, in the last two cases, 
 to injure or convert it ; Plumer v. Brown, 8 
 Mete. (Mass.) 578. As to what constitutes a 
 conversion as between joint owners, see Low- 
 thorp v. Smith, 2 N. C. 255; White v. Os- 
 born, 21 Wend. (N.< Y.) 72; Campbell v. 
 Campbell, 6 N. C. 65 ; Bradley v. Arnold, 16 
 Vt. 382 ; and as to a joint conversion by two 
 or more, see White v. Demary, 2 N. H. 546; 
 Forbes v. Marsh, 15 Conn. 384; Guerry v. 
 Kerton, 2 Rich. (S. C.) 507; White v. Wall, 
 40 Me. 574. A tenant in common can main- 
 tain trover for the sale or attempted sale 
 of the common chattel ; Williams v. Chad- 
 bourne, 6 Cal. 559; Dyckman v. Valiente, 
 42 N. Y. 549 ; contra, Barton v. Burton, 27 
 Vt. 93; 9 Ex. 145; some cases hold that
 
 CONVERSION 
 
 671 
 
 CONVERSION 
 
 nothing short of the destruction of the 
 plaintiff's property is a conversion, because 
 a sale passes only the vendor's title and 
 the co-tenant continues a co-tenant with 
 the purchaser; Big. Torts 204. It is held al- 
 so that trover lies, between co-tenants, for a 
 mere withholding of the chattel, or the mis- 
 use of it, or for a refusal to terminate the 
 common Interest ; Agnew v. Johnson, 17 Pa, 
 373, 55 Am. Dec. 505 ; Piquet v. Allison, 12 
 Mich. 328, 8G Am. Dec. 54. 
 
 An original unlawful taking is in general 
 conclusive evidence of a conversion; Davis 
 v. Duncan, 1 McCord (S. C.) 213; Farrington 
 v. Payne, 15 Johns. (N. Y.) 431; Hyde v. 
 Noble, 13 N. H. 494, 38 Am. Dec. 508 ; Gar- 
 rard v. R. Co., 29 Pa. 154; Skinner v. Brig- 
 ham, 12G Mass. 132; as is the existence of 
 a state of things which constitutes an actual 
 conversion; Everett v. Coffin, 6 Wend. (N. 
 Y.) 603, 22 Am. Dec. 551; Combs v. Johnson, 
 12 N. J. L. 244; Newsum v. Newsum, l Leigh 
 (Va.) 86, 19 Am. Dec. 739; Jewett v. Pat- 
 rid-.', 12 Me. 243, 27 Am. Dec. 173; Himes v. 
 McKinney, 3 Mo. 3S2; Grant v. King, 14 Vt. 
 307 ; without showing a demand and re- 
 fusal; but where the original taking was 
 lawful and the detention. only is illegal, a de- 
 mand and refusal to deliver must be sbowu ; 
 Witherspoon v. Blewett, 47 Miss. 570; 5 B. 
 & C. 146 ; Kennet v. Robinson, 2 J. J. Marsh. 
 (Ky.) 84 ; Thompson v. Rose, 16 Conn. 71, 41 
 Am. Dec. 121 ; Polk's Adm'r v. Allen, 19 Mo. 
 467 ; Rogers v. Huie, 2 Cal. 571, 56 Am. Dec. 
 363; but this evidence is open to explana- 
 tion and rebuttal; Cooley, Torts 532; 2 
 Wins. Saund. 47 e; 5 B. & Aid. 847; Thomp- 
 son v. Rose, 16 Conn. 71, 41 Am. Dec. 121; 
 Jacoby v. Laussatt, 6 S. & R. (Pa.) 300 ; Lock- 
 wood v. Bull, 1 Cow. (N. Y.) 322, 13 Am. Dec. 
 539 ; Munger v. Hess, 28 Barb. (N. Y.) 75 ; 
 Dietus v. Fuss, 8 Md. 148; even though ab- 
 solute ; 2 C. M. & R. 495. Demands and un- 
 lawful refusal constitute a conversion ; Big. 
 Torts 200; mere refusal is only evidence of 
 conversion ; id. 202. 
 
 There has been a conspicuous lack of har- 
 mony in the decisions as to whether a pledgee 
 or purchaser from one guilty of conversion is 
 himself guilty, before demand and refusal. 
 In England the law is briefly summarized in 
 46 Solicitor's Journ. 24. In 11 Q. B. Div. 99, 
 it is held that there is no con version until 
 detention after demand ; so also Rawley v. 
 Brown, 18 Hun (N. Y.) 456; but by the weight 
 of American authority demand is not neces- 
 sary; Riley v. Water Power Co., 11 Cush. 
 (Mass.) 11, and see an article in 15 Am. L. 
 Rev. 363. 
 
 The refusal, to constitute such evidence, 
 must be unconditional, and not a reasonable 
 excuse; 3 Ad. & E. 10(5; Robinson v. Bur- 
 leigh, 5 N. H. 225; Wood v. Dudley, 8 Vt. 
 433 ; Thompson v. Rose, 16 Conn. 76. 41 Am. 
 Dec. 121; Bowman v. Eaton, 21 Barb. (X. 
 Y.) 528; or accompanied by a condition 
 
 which the party has no right to impose; 6 
 Q. B. 443; Dowd v. W a, 13 N. C. 130, 
 
 18 Am. Dec. 567; if made by an agent, it 
 must be within thi of his authority, to 
 
 bind the principal ; 6 Jur. R. R. 
 
 Co., 1 E. D. Sm. (N. , I evi- 
 
 dence of conversion where a 1 by 
 
 a condition which the party has a right to 
 impose; 6 Q. B. 443; 5 15. ft Aid. 247; 
 well v. Few, 7 Johns. (X. Y.i 302; Dowd v. 
 Wadsworth, 13 N. C. 130, IS Am. 
 Watt v. Rotter, 2 Mas. 77. Fed. Cas. No. 17,- 
 291. It may be made at any time prior to 
 bringing suit; 2 GreenL Ev. § 614; n M. ft 
 w. :;<;i;; Storm v. Livingston, 6 Johns. (N. 
 Y.i 11; if before he has parted with his pos- 
 session; Knapp v. Winchester, 11 Vt. 351. 
 It may be inferred from non-compliance with 
 a proper demand; 7 C. & P. 339; Judah v. 
 
 Kemp, 2 Johns, ('as. IN. Y. I -Ml. The de- 
 mand must be a proper one; White v. Deinary, 
 2 N. H. 546; La Place v. Aupoix, 1 Johns. Cas. 
 (N. Y.i 406; Bpence v. Mitchell, 9 Ala. 744; 
 made by the proper person ; see 2 Brod. & B. 
 417: Watt v. Rotter, 2 Mas. 77, Fed. Ca& No. 
 17,291; Carr v. Farley, 12 Mo. 328; and 
 upon the proper person or persons ; 3 Q. B. 
 699; White v. Demary, 2 N. II. 546. The 
 plaintiff must have at least the ri^ht to im- 
 mediate possession; Hardy v. Munroe, 1-7 
 Mass. 64. 
 
 CONVEYANCE. The transfer of the title 
 of land from one person or class of persons 
 to another. Dickerman v. Abrahams, 21 
 Barb. (N. Y.) 551; Abendroth v. Town of 
 Greenwich, 29 Conn. 356. 
 
 There is no magical meaning in this word; 
 it denotes an instrument which carries from 
 one person to another an interest in land : 
 Cairns, L. C, in L. R. 10 Ch. App. 12. 
 
 The instrument for effecting such trans- 
 fer. It includes leases; Jones v. Marks, 47 
 Cal. 242; and mortgages; odd Fellows Sav- 
 ings Bank v. Banton, 40 Cal. 603. 
 
 When there is no express agreement to 
 the contrary, the expense of the conveyance 
 falls upon the purchaser; 2 Yes. 155, note; 
 who must prepare and tender the convey- 
 ance. But see. contra, Fairfax v. Lewis. 2 
 Rand. (Va.) 20; Warveile, Vend. 347. The 
 expense of the execution of the conveyance 
 is, on the contrary, usually borne by the ven- 
 dor; Sugd. Vend. & P. 296; contra, Fairfax 
 v. Lewis, 2 Rand. (Va.) 20; Cooperv. Brown, 
 2 McLean 495, Fed. Cas. No. 3,191. See Liv- 
 ermore v. Bagley, •"• Mass. 4^7; Dudley v. 
 Mimner, 5 Id. 472; Fnnom. 2, § 12. 
 
 The forms of conveyance have varied 
 ly from each other at different periods in 
 the history of the law, and in the various 
 stated of the United States. Tlie mo,].. ;1 t 
 present prevailing in this country is by bar- 
 gain and sale. 
 
 A lease is a conveyance; Shimer v. Town 
 of Phillipsburg, 58 N. J. L. 506, 33 Atl. 852; 
 Sauford v. Johnson, 24 Minn. 172; Jones V.
 
 CONVEYANCE 
 
 672 
 
 CONVICT 
 
 Marks, 47 Cal. 242; Crouse r. Michell, 130 
 Mich. 347, 90 N. W. 32, 97 Am. St. Rep. 479 ; 
 Koeber v. Somers, 108 Wis. 497, 84 N. W. 
 991, 52 L. R. A. 512 ; Milliken v. Faulk, 111 
 Ala. G58, 20 South. 594; contra, Stone v. 
 Stone, 1 R. I. 425 (under a general recording 
 statute; and is it where a married woman's 
 act requires a husband to join in all convey- 
 ances?) ; Heal v. Oil Co., 150 Ind. 483, 50 
 N. E. 4S2; Perkins v. Morse, 78 Me. 17, 2 
 Atl. 130, 57 Am. Rep. 7S0 ; Sullivan v. Barry, 
 4(5 N. J. L. 1 ; nor within meaning of an act 
 declaring that no covenants shall be implied 
 in any conveyance of real estate; Tone v. 
 Brace, 11 Paige Ch. (N. Y.) 566; Mayor, 
 etc., of City of New York v. Mabie, 13 N. Y. 
 151, 64 Am. Dec. 538; Shaft v. Carey, 107 
 Wis. 273, S3 N. W. 2S8. Where a statute al- 
 lowed appeals in cases involving conveyanc- 
 es of real estate, it was held that an order 
 directing a lease to be executed was not 
 within the statute ; Tuohy's Estate, 23 Mont. 
 305, 58 Pac. 722. 
 
 CONVEYANCER. One who makes It his 
 business to draw deeds of conveyance of 
 lands for others and to investigate titles 
 to real property. They frequently act as 
 brokers for the sale of real estate and ob- 
 taining loans on mortgage, and transact a 
 general real estate business. 
 
 CONVEYANCING. A term including both 
 the science and art of transferring titles to 
 real estate from one man to another. 
 
 It includes the examination of the title of the 
 alienor, and also the preparation of the instru- 
 ments of transfer. It is, in England and Scotland, 
 and, to a less extent, in the United States, a highly 
 artificial system of law, with a distinct class of 
 practitioners. A profound and elaborate treatise 
 on the English law of conveyancing is Mr. Preston's. 
 Geldart and Thornton's works are also important ; 
 and an interesting and useful summary of the 
 American law is given in Washburn on Real Prop- 
 erty. See Clerke ; Martindale; Morris; Yeakle, 
 Conveyancing. 
 
 CONVEYANCING COUNSEL TO THE 
 COURT OF CHANCERY. Certain counsel, 
 not less than six in number, appointed by 
 the Lord Chancellor, for the purpose of as- 
 sisting the court of chancery, or any judge 
 thereof, with their opinion in matters of 
 title and conveyancing. Stat. 15 & 16 Vict. 
 c. 80, §§ 40, 41. 
 
 C0NVICIUM. In Civil Law. The name 
 of a species of slander or injury uttered in 
 public, and which charged some one with 
 some act contra bonos mores. Vicat; Bac. 
 Abr. Slander, 29. 
 
 CONVICT. One who has been condemned 
 by a competent court. One who has been 
 convicted of a crime or misdemeanor. 
 
 He differs from a slave, not being mere 
 property without civil rights, but having all 
 the rights of an ordinary citizen not taken 
 from him by the law. While the law takes 
 his liberty and imposes a duty of servitude 
 and observance of discipline, it does not de- 
 
 ny his right of personal security against un- 
 lawful invasion; Westbrook v. State, 133 
 Ga. 578, 66 S. E. 788, 26 L. R. A. (N. S.) 
 591, 18 Ann. Cas. 295. See Peisoneb; Pbis- 
 on Labor. 
 
 To condemn. To find guilty of a crime or 
 misdemeanor. 4 Bla. Com. 362. 
 
 CONVICT-MADE 
 
 Labor. 
 
 GOODS. See Pbison 
 
 CONVICTED. Attaint. Thayer, Evidence. 
 
 CONVICTION (Lat. convictio; from con, 
 with, vinoire, to bind). In Practice. That 
 legal proceeding of record which ascertains 
 the guilt of the party and upon which the 
 sentence or judgment is founded. Nason v. 
 Staples, 48 Me. 123; Com. v. Lockwood, 109 
 Mass. 323, 12 Am. Rep. 699; Com. v. Gor- 
 ham, 99 Mass. 420. 
 
 Finding a person guilty by verdict of a 
 jury. 1 Bish. Cr. L. § 223 ; see 45 Alb. L. 
 J. 1. 
 
 A record of the summary proceedings up- 
 on any penal statute before one or more 
 justices of the peace or other persons duly 
 authorized, in a case where the offender has 
 been convicted and sentenced. Holthouse, 
 Diet. 
 
 In its popular sense a verdict of guilty is 
 said to be a conviction; Smith v. Com., 14 
 S. & R. (Pa.) 69. In its strict legal sense it 
 means judgment on a plea or verdict of 
 guilty; Com. v. McDermott, 224 Pa. 363, 73 
 Atl. 427, 24 L. R. A. (N. S.) 431. 
 
 The first of the definitions here given undoubtedly 
 represents the accurate meaning of the term, and 
 includes an ascertainment of the guilt of the party 
 by an authorized magistrate in a summary way, or 
 by confession of the party himself, as well as by 
 verdict of a jury. The word is also used in each of 
 the other senses given. It is said to be sometimes 
 used to denote final judgment. Dwar. 2d ed. 683. 
 
 Summary conviction is one which takes 
 place before an authorized magistrate with- 
 out the intervention of a jury. 
 
 Conviction must precede judgment or sen- 
 tence; In re McNeill, 1 Cai. (N. Y.) 72; 
 State v. Cross, 34 Me. 594; see Faunce v. 
 People, 51 111. 311; but it is not necessarily 
 or always followed by it; 1 Den. C. C. 568; 
 Ex parte Dick, 14 Pick (Mass.) 88; Kane v. 
 People, 8 Wend. (N. Y.) 204; Smith v. 
 Eames, 3 Scam. (111.) 76, 36 Am. Dec. 515. 
 Generally, when several are charged in the 
 same indictment, some may be convicted and 
 the others acquitted ; 2 Den. C. C. 86 ; State 
 v. Allen, 11 N. C. 356; Bloomhuff v. State, 
 8 Blackf. (Ind.) 205; but not where a joint 
 offence is charged; Stephens v. State, 14 
 Ohio, 386; State v. Mainor, 28 N. C. 340. 
 A person cannot be convicted of part of an 
 offence charged in an indictment, except by 
 statute; Com. v. Newell, 7 Mass. 250; State 
 v. Shoemaker, 7 Mo. 177; State v. Bridges, 
 5 N. C. 134; Cameron v. State, 13 Ark. 712. 
 A conviction prevents a second prosecution 
 for the same offence; Whart Cr. PI. § 456;
 
 CONVICTION 
 
 673 
 
 VOY 
 
 U. S. v. Keen, 1 McLean 429, Fed. Cas. No. 
 15,510 ; State v. Benham, 7 Conn. 414 ; Mount 
 y. State, 14 Ohio 295, 45 Am. Dec. 542 ; State 
 v. Norvell, 2 Yerg. (Tenn.) 24, 24 Am. Dec. 
 458; Solliday v. Com., 28 Pa. 13. But the 
 recovery in a civil suit, of a fine, part of a 
 penalty under a statute, does not prevent 
 the prosecution of the defendant for the pur- 
 pose of enforcing the full penalty by impris- 
 onment; In re Leszynsky, 16 Blatcht 9, Fed 
 Oas. No. 8,279. A conviction of ;i less offence 
 may be had where the indictment charges 
 a greater offence, which necessarily includes 
 the less; State v. Outerbridge, 82 N. C. 621; 
 Green v. State, 8 Tex. App. 71 ; De Lacy v. 
 State, 8 Baxt. (Tenn.) 401; State v. O'Kane, 
 23 Kan. 244; State v. Scheie. 52 la. 608, 3 
 N. W. '*>".2. As to the rule where the indict- 
 ment under which the conviction La procured 
 is defective and liable to he set aside, see 1 
 Bish. Cr. L. §§ 663, 664; 4 Co. 44 a. 
 
 At common law conviction of certain 
 crimes when accompanied by judgment dis- 
 qualifies the person convicted as a witness; 
 Keithler v. State, 10 Smedes & M. | Miss.) 192. 
 And see Otley v. Merrick, 11 Mete. (Mass. i 
 302. But where a statute making defendants 
 witnesses is without exception, a conviction 
 rendering such defendant infamous will not 
 disqualify him; Delamater v. People, 5 Lans. 
 (N. Y.i 332; Newman v. People, C3 Barb. 
 (X. Y.) 630, See Com. v. Wright, 107 Mass. 
 403. 
 
 Summary convictions, being obtained by 
 proceedings in derogation of the common 
 law, must be obtained strictly in pursuance 
 of the provisions of the statute ; 1 Burr. 613 ; 
 and the record must show fully that all 
 proper steps have been taken: Welman v. 
 Polhill, R. M. Charlt. (Ga.) 235; Singleton 
 v. Com'rs of Tobacco Inspection, 2 Bay (S. 
 C.) 105; Bigelow v. Stearns, 19 Johns. (N, 
 Y.) 39, 41, 10 Am. Dec. 1S9; Chase v. Hatha- 
 way. 14 Mass. 224; Cumming's Case, 3 Greenl. 
 (Me.) 51 ; Keeler v. Milledge, 24 N. J. L. l 12 : 
 and especially that the court had jurisdic- 
 tion; Brackett v. State. 2 Tyler (Vt.i 167; 
 Powers v. People, 4 Johns. (N. Y.) 292; May- 
 or, etc., of City of Philadelphia v. Nell, 3 
 Yeates (Pa.) 475. 
 
 As to payment of costs upon conviction, 
 see 1 Bish. Cr. Pr. § 1317, n. 
 
 C0NVIVIUM. A tenure by which a ten- 
 ant was bound to provide meat and drink for 
 his lord at least once in the year. Oowell 
 
 CONVOCATION (Lat con, together, voco, 
 to call). In Ecclesiastical Law. The general 
 assembly of the clergy to consult upon ec- 
 clesiastical matters. See Court of Convo- 
 cation ; Church of England. 
 
 CONVOY. A naval force, under the com- 
 mand of an officer appointed by government, 
 for the protection of merchant-ships and 
 others, during the whole voyage, or such part 
 of it as is known to require such protection. 
 Marsh. Ins. b. 1, c. 9, s. 5; Park. Ins. 388. 
 Bouv.^3 
 
 Warranties are sometimes Inserted in policies of 
 insurance that the ship shall sail with convoy. To 
 comply with this warranty, Ave things are essential: 
 first, the ship must sail with the regular convoy 
 appointed by the government; secondly, she must 
 sail from the place of rendezvous appointed by the 
 government; thirdly, the convoy must be for the 
 voyage ; fourthly, the ship insured must have sail- 
 ing instructions ; fifthly, she must depart and con- 
 tinue with the convoy till the end of the voyage, un- 
 less separated from it by necessity. Marsh. Ins. b. 
 1, c. 9, s. 5. 
 
 CO-OBLIGOR. One who Is bound together 
 with one or more others to fulfil an obliga- 
 tion. See Parties ; Joinder. 
 
 COOL BLOOD. Tranquillity, or calmnesa 
 The condition of one who has the calm and 
 
 undisturbed Hse of his reason. In cases oi 
 homicide, it frequently becomes necessary t< 
 ascertain whether the act of the person kill- 
 ing was done in cool blood or not, in 
 
 ertain the degree of his guilt. Bacon, 
 Abr. Murder (B) ; Kel. 56; Sid. 177; Lev. 
 180. 
 
 COOLING -TIME. Time for passion to 
 subside and reason to interpose. Cooling- 
 time destroys the effect of provocation, leav- 
 ing homicide murder the same as if no prov- 
 ocation had beeu given; 1 Russ. Cr. 667; 
 YVhart. Horn. 448; McWhirt's Case, 3 Gratt. 
 (Va.) 594, 46 Am. Dec. 196. See Homicide; 
 Skli--Di:fence. 
 
 COPARCENARY, ESTATES IN. Estates 
 of which two or more persons form one heir. 
 l Washb. B, P. ill. 
 
 The title to such an estate is always by 
 descent. The shares of the tenants need not 
 be equal. The estate is rare iu America, but 
 sometimes exists; Manchester v. Doddridge, 
 3 Ind. 300; Pureed v. Wilson, 4 Gratt. < Va.) 
 16; Rector v. Waugh, 17 Mo. 13, ."7 Am. Dec. 
 251; Gilpin v. Hollingsworth, 3 Md. 190, 56 
 Am. Dec. 737. See Watk. Conv. 145. 
 
 COPARCENERS. Persons to whom an es- 
 tate of inheritance descends jointly, and by 
 whom it is held as an entire estate. - l'la. 
 Com. 187. 
 
 In the old English and the American sense the 
 term includes males as well as females, but in the 
 modern English tise is limited to femal 
 366. But the husband of a deceased CO] 
 entitled as tenant by the curtesy, holds as a co- 
 parcener with the surviving sisters of his wife, as 
 does also the heir-at-law of his deceased wife upon 
 his own death; Brown, Diet. 
 
 COPARTNER. One who is a partner 
 with one or more other persons; a member 
 
 of a partnership. 
 
 COPARTNERSHIP. A partnership. 
 
 COPARTNERY. In Scotch Law. The con- 
 tract of copartnership. Bell, Diet 
 
 COPE. A duty charged on Lead from cer- 
 taiu mines in England. Blount 
 
 C0PIA LIBELLI DELIBERANDA. A writ 
 to enable a man accused to get a copy of tho 
 libel from the judge ecclesiastical. Cowell. 
 
 COPULATIVE TERM. One which Ls plac-
 
 COPULATIVE TERM 
 
 674 
 
 COPYRIGHT 
 
 ed between two or more others to join them 
 together. 
 
 COPY. A true transcript of an original 
 writing. 
 
 Exemplifications are copies verified by the 
 great seal or by the seal of a court. 1 Gilb. 
 Ev. 19. 
 
 Examined copies are those which have 
 been compared with the original or with an 
 official record thereof. 
 
 Office copies are those made by officers in- 
 trusted with the originals and authorized 
 for that purpose. 
 
 The papers need not be exchanged and 
 read alternately ; 2 Taunt. 470 ; 1 Stark. 183 ; 
 4 Campb. 372 ; 1 C. & P. 578. An examined 
 copy of the books of ah unincorporated bank 
 is not evidence per se; Ridgway v. Bank, 12 
 S. & R. (Pa.) 25G, 14 Am. Dec. 681; Vance 
 v. Reardon, 2 N. & M'C. 299 ; 1 Greenl. Ev. § 
 508. 
 
 Copies cannot be given in evidence, unless 
 proof is made that the original is lost or in 
 the power of the opposite party, and, in the 
 latter case, that notice has been given him 
 to produce the original; 1 Greenl. Ev. § 508. 
 
 A translation of a book is not a copy; 
 Stowe v. Thomas, 2 Wall. Jr. 547; 2 Am. L. 
 Reg. 229, Fed. Cas. No. 13,514; a copy of a 
 book means a transcript of the entire work ; 
 Rogers v. Jewett, 12 Mo. Law Rep. N. S. 339, 
 Fed. Cas. No. 12.012. 
 
 As to copies mechanically made being orig- 
 inals, see International Harvester Co. of 
 America v. Elfstrom, 101 Minn. 263, 112 N. 
 W. 252, 12 L. R. A. (N. S.) 343, 118 Am. St. 
 Rep. 626, 11 Ann. Cas. 107. 
 
 COPYHOLD. A tenure by copy of court- 
 roll. Any species of holding by particular 
 custom of the manor. The estate so held. 
 
 A copyhold estate was originally an estate at the 
 will of the lord, agreeably to certain customs evi- 
 denced by entries on the roll of the courts baron. 
 Co. Litt. 58 a; 2 Bla. Com. 95; 1 Poll. & M. 351, 357. 
 It is a villenage tenure deprived of its servile inci- 
 dents. The doctrine of copyhold is of no application 
 in the United States. Wms. R. P. 257, 258, Rawle's 
 note ; 1 Washb. R. P. 26. See Villein. 
 
 COPYHOLDER. A tenant by copyhold 
 tenure (by copy of court-roll J. 2 Bla. Com. 
 95. 
 
 COPYRIGHT. The exclusive privilege, se- 
 cured according to certain legal forms, of 
 printing, or otherwise multiplying, publish- 
 ing, and vending copies of certain literary 
 or artistic productions. 
 
 According to the practice of legislation in Eng- 
 land and America, the term copyright is confined to 
 the exclusive right secured to the author or propri- 
 etor of a writing or drawing, which may be multi- 
 plied by the arts of printing in any of its branches. 
 Property in the other classes of intellectual objects 
 is usually secured by letters-patent, and the inter- 
 est is called a patent-right. But the distinction is 
 arbitrary and conventional. 
 
 The foundation of all rights of this description is 
 the natural dominion which every one has over 
 his own ideas, the enjoyment of which, although 
 they are embodied in visible forms or characters, 
 he may, if he chooses, confine to himself or impart 
 
 to others. But, as it would be Impracticable in civil 
 society to prevent others from copying such char- 
 acters or forms without the intervention of positive 
 law, and as such intervention is highly expedient, 
 because it tends to the increase of human culture, 
 knowledge, and convenience, it has been the prac- 
 tice of civilized nations in modern times to secure 
 and regulate the otherwise insecure and imperfect 
 right which, according to the principles of natural 
 justice, belongs to the author of new ideas. 
 
 This has been done by securing an exclusive right 
 of multiplying copies for a limited period, as far as 
 the municipal law of the particular country extends. 
 But, inasmuch as the original right, founded in the 
 principles of natural justice, is of an imperfect 
 character, and requires, in order to be valuable, 
 the intervention of municipal law, the law of na- 
 tions has not taken notice of it as it has of some 
 other rights of property ; and therefore all copy- 
 right is the result of some municipal regulation, 
 and exists only in the limits of the country by whose 
 legislation it is established. The international copy- 
 right which is established in consequence of a con- 
 vention between any two countries is not an excep- 
 tion to this principle ; because the municipal au- 
 thority of each nation making such convention ei- 
 ther speaks directly to its own subjects through the 
 treaty itself, or is exerted in its own limits by some 
 enactment made in pursuance of the international 
 engagement. 
 
 It was formerly doubtful in England whether 
 copyright, as to books, existed at common la.w. The 
 subject was much discussed in 4 H. L. c. 815. It is 
 said that "the negative conclusion is now generally 
 accepted by lawyers." Sir F. Pollock, First Book 
 of Jurispr. 200. It was held that the common law 
 copyright for protection exists in favor of works 
 of literature, art or science to this limited extent 
 only, that while they remain unpublished no per- 
 son can copyright them ; 10 Ir. Ch. Rep. 121, followed 
 in [1908] 2 Ch. 441; and that the publisher of a 
 copyrighted unpublished picture is liable for dam- 
 ages for infringement of the owner's common law 
 right of property therein; [1908] 2 Ch. 441. 
 
 The following judgment states the law in the 
 United States: "Statutory copyright is not to be 
 confounded with the common law right. At com- 
 mon law the exclusive right to copy existed in the 
 author until he permitted a general publication. 
 Thus, when a book was published in print, the own- 
 er's common law right was lost. At common law 
 an author had a property in his manuscript, and 
 might have an action against any one who under- 
 took to publish it without authority. The statute 
 created a new property right, giving to the author, 
 after publication, the exclusive right to multiply 
 copies for a limited period. This statutory right 
 is obtained in a certain way and by the perform- 
 ance of certain acts which the statute points out. 
 That is, the author having complied with the stat- 
 ute and given up his common law right of exclu- 
 sive duplication prior to general publication, ob- 
 tained by the method pointed out in the statute an 
 exclusive right to multiply copies and publish the 
 same for the term of years named in the statute. 
 Congress did not sanction an existing right ; it 
 created a new one." Caliga v. Newspaper Co., 215 
 U. S. 188, 30 Sup. Ct. 38, 54 L. Ed. 150. The Act 
 March 4, 1909, expressly reserves the common law 
 rights of an author of an unpublished work in law 
 or in equity. 
 
 By art. 1, § 8, of the federal constitution, 
 power was given to congress "to promote 
 the progress of science and the useful arts, 
 by securing for limited times to authors and 
 inventors the exclusive right to their respec- 
 tire writings and discoveries." The follow- 
 ing is a concise and substantial abstract of 
 the Act of March 4, 1909, in effect July 1, 
 1909 : 
 
 The exclusive rights secured under the 
 act are to print, reprint, publish, copy and
 
 COPYRIGHT 
 
 675 
 
 COPYRIGHT 
 
 vend the copyrighted work ; to translate into 
 oilier languages or make other versions, if a 
 literary work ; to dramatize it if non- 
 dramatic; to convert it into a novel or other 
 non-dramatic work, if a drama ; td arrange or 
 adapt it if it be a musical work; to complete 
 it if it be a model or a design for a work of 
 art; to deliver or authorize its delivery in 
 public for profit if it be a lecture, etc. ; to 
 perform or represent it publicly if it be a 
 drama, or if it be a dramatic work and not 
 reproduced for sale, to vend any manuscript 
 or record of it; to make any transcription 
 or record of it which may he exhibited, etc.; 
 to exbihit it, etc., in any manner what* 
 if it be a musical composition, to perform 
 it publicly for profit, and for the purpose <>f 
 publishing and vending copies to make any 
 arrangement or setting of it or of the melo- 
 dy of it in any system of notation or form 
 of record from which it may be reproduced, 
 provided that the act so far as it secures 
 copyright controlling the parts of instru- 
 ments serving to reproduce mechanically 
 the musical work shall not include the works 
 of a foreign author or composer unless the 
 nation of such composer grants to citizens of 
 the United States similar rights, and provid- 
 ed that whenever the owner of the musical 
 copyright has used or permitted it, etc., to 
 be used mechanically, any other person may 
 make similar use of it upon the payment of 
 a royalty of two cents on each part manu- 
 factured. The reproduction of a mechanical 
 composition on coin-operating machines is 
 not to be deemed a public performance for 
 profit unless a fee is charged for admission 
 to the place where it occurs. 
 
 Nothing in the act shall be construed to 
 annul or limit the right of the author or pro- 
 prietor of an unpublished work, at common 
 law or in equity, to prevent the copying, pub- 
 lication or use of his work without his con- 
 sent, and to obtain damages therefor. 
 
 By section 4, copyright works include all 
 the writings of an author; and by section 5 
 the subject-matter of copyright is in the fol- 
 lowing classes : 
 
 Books, including composite and cyclopedic 
 works, directories, gazetteers, and other com- 
 pilations; periodicals, including newspapers; 
 lectures, sermons, addresses (prepared for 
 oral delivery) ; dramatic or dramatieo-musi- 
 cal compositions; musical compositions; 
 maps; works of art; models or designs for 
 works of art; reproductions of a work of 
 art; drawings or plastic works of a scientific 
 or technical character; photographs; prints 
 and pictorial illustrations; but this classifi- 
 cation shall not limit the subject-matter as 
 defined in section 4, and error in classifica- 
 tion shall not invalidate a copyright By 
 Act of Aug. 24, 1912, two classes were added : 
 Motion-picture photo-plays and motion-pic- 
 tures other than photo-plays. 
 
 Compilations, abridgments, dramatizations, 
 translations, etc., of works in the public do- 
 
 main or of copyrighted works when produc- 
 ed with the consent of the proprietor of the 
 copyright or works repuhlished with new 
 ma tier, are new works and are subjects of 
 copyright. 
 
 No copyright shall subsist in tie- text of 
 any work which is in the puhlic domain, or 
 in any work which was published in this 
 country or a foreign country prior to the go- 
 Ing into effect of the act and not all 
 copyrighted in the United States, or in any 
 publication of the United states government. 
 Alien authors or proprietors are within 
 the act if domiciled within the United States 
 at the time of the first publication, or if the 
 nation of such alien lias extended reciprocal 
 rights to citizens of the United Sti 
 
 A copyright is secured by publication with 
 notice of copyright attached to each copy of 
 the work. 
 
 Registration of a claim to a copyright is 
 Obtained by complying with the terms of the 
 act, including the deposit of copies, and up- 
 on such compliance the register of copyrights 
 shall issue the prescribed certificate. 
 
 Copyrights tuny he had en the works of an 
 author, of which copies are not reproduced 
 for sale, upon the deposit of one copy of such 
 work, if it he a lecture, etc., or a dramatic 
 or musical, etc., composition; of a title and 
 description, with one print taken from each 
 scene or act, if the work ho a motion picture 
 photo-play; of a photographic print if a pho- 
 tograph; of a title and description, with not 
 less than two prints taken from different 
 sections of a complete motion-picture, if the 
 work be a motion-picture other than a pho- 
 to-play; or of a photograph or other identi- 
 fying reproduction, if a work of art, plastic 
 work or drawing. 
 
 After securing copyright by publication, 
 with notice, two complete copies of the best 
 edition of the work shall be promptly depos- 
 ited in the copyright office at Washington. 
 
 There are provisions for the manufacture 
 of hooks, etc., within the limits of the United 
 States. 
 
 "Notice of copyright shall consist either 
 of the word 'Copyright' or the abbreviation 
 'Copr.,' accompanied by the name of the 
 right proprietor, and if the work he a print- 
 ed, literary, musical or dramatic work, the 
 year of the copyright," except that on maps. 
 works of art. photographs, etc.. ir may con- 
 sist of the letter "C" hi a circle, with the 
 initials, monogram or symbol of the pro- 
 prietor, hut on some accessible portions of 
 such copies the name must appear. In a 
 printed publication, the copyright notice must 
 he on the title page or the page Immediately 
 following, or, if a periodical, upon the first 
 page of text of each separate number, or un- 
 der the title heading, or in a musical work 
 either on the title page or the first page of 
 music. 
 
 Copyright is for twenty-eight years from 
 the date of first publication, whether the
 
 COPYRIGHT 
 
 676 
 
 COPYRIGHT 
 
 copyrighted work bears the author's true 
 name or is published anonymously or under 
 an assumed name. If the work is posthu- 
 mous, a periodical, an encyclopaedia, or other 
 composite work, or was copyrighted by a cor- 
 poration (not being the author's assignee or 
 licensee) or by an employer for whom a work 
 was made for hire, there may be a renewal 
 for twenty-eight years, if applied for within 
 one year before expiration. In case of any 
 other copyrighted work, the author, or if not 
 living, his widow or children, or failing all 
 such, his executors or next of kin, may re- 
 new for twenty-eight years, if application is 
 made more than one year before expiration. 
 
 Jurisdiction of all suits is vested in the 
 district court of the United States in the 
 district in which the defendant or his agent 
 is an inhabitant or in which he may be 
 found. 
 
 Section 25 (Act of March 4, 1909, as amend- 
 ed by Act of Aug. 24, 1912) provides for in- 
 junctions in cases of infringement, and speci- 
 fies the measure of damages in certain cases ; 
 also provides for the surrender and destruc- 
 tion of infringing copies, etc. Injunctions 
 may be served on the parties anywhere in 
 the United States, and shall be operative 
 throughout the United States and enforceable 
 by any other court or judge. Such proceed- 
 ings may be reviewed as in any other cases. 
 No criminal proceeding shall be maintained 
 unless commenced within three years. 
 
 Assignments of copyright shall be record- 
 ed in the copyright office within three months 
 after execution if within the United States or 
 within six months after execution without 
 the United States ; but otherwise shall be 
 void as against any mortgagee or subsequent 
 purchaser for a valuable consideration with- 
 out notice, whose assignment has been re- 
 corded. The assignee's name may be substi- 
 tuted in the statutory notice of copyright. 
 
 The fee for the registration of any work 
 deposited under the act is one dollar, which 
 includes the certificate of registration under 
 seal, except in cases of photographs, for 
 which the fee is fifty cents when a certifi- 
 cate is not demanded. 
 
 The date of publication is the earliest day 
 when copies of the first authorized edition 
 were placed on sale or publicly distributed. 
 "Author" includes an employer in the case 
 of works made for hire. 
 
 Oratorios, cantatas, etc., may be perform- 
 ed for charity by public schools, church 
 choirs or vocal societies, when obtained from 
 a public library, or from a public school, 
 church choir or vocal society library, with- 
 out constituting infringement. 
 
 The prohibition of the importation of 
 piratical copies does not apply: To works in 
 raised characters for the blind ; to foreign 
 newspapers or magazines, although contain- 
 ing copyright matter printed or reprinted by 
 authority of the copyright proprietor, unless 
 they contain also copyright matter printed 
 
 or reprinted without such authorization; to 
 an authorized edition of a book in a foreign 
 language, of which only an English transla- 
 tion has been copyrighted here ; to hooka 
 published abroad, with the author's author- 
 ity, when imported one copy at a time for in- 
 dividual use and not for sale (but excepting 
 a foreign reprint of a book by an American 
 author copyrighted here) ; or to books import- 
 ed for the United States or for libraries, etc. ; 
 or when such book is part of a library 
 bought en bloc; or when brought personally 
 into the United States. 
 
 Cases in the former revision under former 
 acts are retained as likely to be useful under 
 the act of 1909. 
 
 ~\Yhat may be copyrighted. Private letters 
 may be copyrighted by their author ; Folsom 
 v. Marsh, 2 Sto. 100, Fed. Cas. No. 4,901; 
 and so may abstracts of title; Banker v. 
 Caldwell, 3 Minn. 94 (Gil. 46). 
 
 The compilations of existing material se- 
 lected from common sources arranged and 
 combined in original and useful form are 
 the subject of a copyright, whether it con- 
 sists wholly of selected matter or partly of 
 original composition; Drone, Copyr. 152. 
 Thus: Dictionaries ; 2 Sim. & Stu. 1 ; gazet- 
 teers ; 5 Beav. 6 ; road and guide books ; 1 
 Drew. 353; directories; L. R. 1 Eq. 697; 
 calendars; 12 Ves. 270; catalogues; L. R. 18 
 Eq. 444 ; trade catalogues ; Da Prato Statu- 
 ary Co. v. Guiliani Statuary Co., 189 Fed. 
 90 ; mathematical tables ; 1 Russ. & Myl. 73 ; 
 a list of hounds ; L. R. 9 Eq. 324 ; a collec- 
 tion of statistics ; L. R. 3 Eq. 718. 
 
 An abridgment, one not a mere transcript 
 of the part of an original, may be copyright- 
 ed ; Gray v. Russell, 1 Story 11, Fed. Cas. 
 No. 5,72S ; so may a digest ; Drone, Copyr. 
 158. One who prepares reports of decided 
 cases may obtain a valid copyright for the 
 parts of which he is the author or compiler ; 
 Wheaton v. Peters, 8 Pet. (U. S.) 591, 8 L. 
 Ed. 1055; Little v. Gould, 2 Blatchf. 165, 
 Fed. Cas. No. 8,394 ; Paige v. Banks, 13 Wall. 
 (U. S.) 60S, 20 L. Ed. 709; but the reporter 
 is not entitled to a copyright in the opinion 
 of the court, even though he took it down 
 from the lips of the judge, nor in the head 
 notes when prepared by the judge ; Chase v. 
 Sanborn, 6 U. S. Pat. Off. Gaz. 932, Fed. Cas. 
 No. 2,62S. 
 
 The collection and arrangement of adver- 
 tisements in a trade directory are the 
 subject of copyright, though each single ad- 
 vertisement is not ; [1S93] 1 Ch. 21S. A com- 
 pilation made from voluminous public docu- 
 ments may be copyrighted ; Hanson v. Jac- 
 card Jewelry Co., 32 Fed. 202. A compilation 
 of prices and quotations on the stock ex- 
 change, printed on sheets and issued daily 
 as a newspaper; Exchange Telegraph Co. v. 
 Gregory & Co., 73 Law Times Rep. 120. 
 
 A photographer, who makes no charge for 
 photographing an actress in her public char- 
 acter, has the right to secure a copyright for
 
 COPYRIGHT 
 
 677 
 
 COPYRIGHT 
 
 his own exclusive benefit; Press Pub. Co. v. 
 Falk, 59 Fed. 324; and where he produces 
 by an arrangement of lights and shadows, an 
 original effect representing his conception of 
 her in a certain character, he is entitled to 
 the protection of the copyright laws; Falk 
 v. Donaldson, 57 Fed. 32. So of an artistic 
 photograph of a woman and child; Burrow- 
 Giles Lithographic Co. v. Sarony, 111 U. S. 
 53, 4 Sup. Ct. 279, 28 L. Ed. 349; Falk v. 
 Brett Lithographing Co., 48 Fed. 678. 
 
 A "book" may be printed on one sheet; 
 Clayton v. Stone, 2 Paine 383, Fed. Cas. No. 
 2,872; Drury v. Ewing, 1 Bond 510, Fed. 
 Cas. No. 4,095. As a general rule a printed 
 publication is a book within the copyright 
 laws when its contents are complete in them- 
 selves, deal with a single subject, need no 
 continuation, and have appreciable size; 
 Smith v. Hitchcock, 226 U. S. 53, 33 Sup. Ct. 
 6, 57 L. Ed. 119. 
 
 A diagram with directions for cutting 
 ladies' garments printed on a single sheet 
 of paper is a "book" ; Drury v. Ewing, 1 
 Bond 540, Fed. Cas. No. 4,095; a manufac- 
 turer of women's wearing apparel issued a 
 book containing illustrations of the latest 
 modes and information as to materials and 
 prices; it was held a proper subject of copy- 
 right, though used for advertisements ; Na- 
 tional Cloak & Suit Co. v. Kaufman, 1S9 Fed. 
 215 ; and so is a cut in an illustrated newspa- 
 per ; Harper v. Shoppell, 26 Fed. 519 ; infor- 
 mation in a guide-book may be copyrighted; 
 L. R. 1 Eq. 697. 
 
 A scene in a play representing a series of 
 dramatic incidents, but with very little dia- 
 logue, may be copyrighted ; Daly v. Webster, 
 56 Fed. 4S3, 4 C. C. A. 10 ; so of the intro- 
 duction, chorus, and skeleton of a "topical 
 song" ; Henderson v. Tompkins, 60 Fed. 75S, 
 A manufacturer of records for mechanical- 
 ly producing a musical composition may en- 
 join another from copying his records; 
 ^Eolian Co. v. Music Roll Co., 196 Fed. 926. 
 When a new edition differs substantially 
 from the former one, a new copy right may 
 be acquired, provided the alteration shall 
 materially affect the work; Gray v. Russell, 
 1 Sto. 11, Fed. Cas. No. 5,728 ; Bonks v. Mc- 
 Divitt, 13 Blatchf. 163, Fed. Cas. No. 961. 
 New editions of a copyright work are pro- 
 tected by the original copyright, but not new 
 matter ; Lawrence v. Dana, 4 Cliff. 1, Fed. 
 Cas. No. S.136; Farmer v. Lithographing Co., 
 1 Flipp. 228, Fed. Cas. No. 4,651. 
 
 What may not be copyrighted. No copy- 
 right can be obtained on racing tips publish- 
 ed in a copyrighted newspaper ; [1895] 2 
 Ch. 29; nor on a daily price current; Clay- 
 ton v. Stone, 2 Paine 382, Fed. Cas. No. 2,872 ; 
 nor on a blank ; Baker v. Seldeu, 101 U. S. 
 99, 25 L. Ed. 841; nor cuts contained in a 
 trade catalogue; J. L. Mott Iron Works v. 
 Clow, 72 Fed. 1GS. 
 
 Where a judge of a supreme court of a 
 
 state prepares the opinion of the court, the 
 statement of the case, and the syllabus, and 
 the reporter of the court takes out a copy- 
 right in his own name for the state, the 
 copyright is invalid; Banks v. Manchi 
 128 U. S. 244, 9 Sup. Ct. 36, 32 L. Ed. 425. 
 Where a reporter of di Ls employed on 
 
 condition that his reports shall belong to the 
 state, he is not entitled to a copyright; Lit- 
 tle v. Gould, 2 Blatchf. 165, Fed. Cas. No. 
 8,394; Banks & Bros. v. Pub. Co., 27 Fed. 
 50. 
 
 Publications of an improper kind will not 
 be protected by the courts; Martinetti v. 
 Maguire, 1 Deady (U. S.) 223, Fed. Cas. No. 
 9,173. 
 
 An author cannot acquire any right to the 
 protection of his literary products by using 
 an assumed name or pseudonym. Without 
 the protection of a copyright, his work is 
 dedicated to a public when published; The 
 ".Mark Twain" Case, 14 Fed. 72S. 
 
 The compilation of the statutes of a state 
 may be so original as to entitle the author to 
 a copyright, but he cannot obtain one for the 
 laws alone, and the legislature of the state 
 cannot confer any such exclusive privilege 
 upon him; Davidson v. Wheelock, 27 Fed. 
 61. Such a compilation of statutes may la- 
 copyrighted as to the manner in which the 
 work was done, but not as to the laws alone; 
 id. 
 
 A stage dance illustrating the poetry of 
 motion by a series of graceful movements, 
 etc., is not a dramatic composition within 
 the act; Fuller v. Bemis, 50 Fed. 92G. The 
 copyright of a book describing a new system 
 of stenography does not protect the system 
 apart from the language by which it is ex- 
 plained ; Griggs v. Terrin, 49 Fed. 15. 
 
 An opinion is not the subject-matter of 
 copyright; nor is a printed expression of it, 
 unless it amount to a literary composition ; 
 [1895] 2 Ch. 29. 
 
 As to notice. In the notice of copyright of 
 a photograph the abbreviation " '94." repre- 
 senting the year, is a substantial compliance 
 with the act; Snow v. Mast, 65 Fed. 995. 
 The following notice on a map: •'Copyright 
 entered according to Act of Con--; 
 by T. C. Hefel, Civil Engineer," was held 
 sufficient, since it differed from the prescrib- 
 ed formula only by including words which 
 were surplusage; Hefel v. Land Co., 54 Fed. 
 179. The words "1889. Copyrighted by B. 
 J. Falk, New York," were held sufficient; 
 Falk v. Schumacher. 48 Fed. 222 ; Falk 
 v. Seidenberg, 48 Fed. 224. The words 
 "Copyrighted 1891. All rights reserved," 
 were held not a sufficient notice of copyright ; 
 Osgood v. Instrument Co., G9 Fed. 291. 
 
 The initial of the Christian name is suffi- 
 cient if the full surname be given; Burrow- 
 Gih.-s Lithographic Co. v. Sarony, 111 0. S. 
 53, i sup. Ct 279, 28 D. Ed. 349. Where the 
 printed title was deposited by E. B. Meyers
 
 COPYRIGHT 
 
 678 
 
 COPYRIGHT 
 
 & Chandler and the printed notice of the en- 
 try of the copyright showed that the copy- 
 right was entered by E. B. Meyers alone, it 
 was held immaterial; Callaghan v. Myers, 
 128 U. S. 657, 9 Sup. Ct. 177, 32 L. Ed. 547. 
 
 A copyright may be taken in the name of 
 a trustee for the benefit of some third party 
 who is the author or proprietor ; Hanson v. 
 Jewelry Co., 32 Fed. 202 ; Black v. Henry G. 
 Allen Co., 42 Fed. 618, 9 L. R. A. 433; id., 
 56 Fed. 764. 
 
 One who does business under a fictitious 
 partnership name may receive a copyright 
 under that name ; Scribner v. Henry G. Al- 
 len Co., 49 Fed. 854. An author of an ar- 
 ticle intended for a foreign encyclopaedia ob- 
 tained a copyright therefor under an agree- 
 ment with the publisher. It was held that 
 the agreement was a license only to use the 
 article, and that the copyright was properly 
 in the author's name ; Black v. Henry G. 
 Allen Co., 56 Fed. 764. An author of a paint- 
 ing, who, not being a subject of a foreign state 
 with which the United States has copyright 
 relations, is excluded from benefit of copy- 
 right, cannot convey such right to a person 
 whose citizenship is within the statute ; Bong 
 v. Art Co., 214 U. S. 236, 29 Sup. Ct. 628, 53 
 L. Ed. 979, 16 Ann. Cas. 1126. 
 
 As to ichat will constitute a sufficient 
 publication to deprive an author of his copy- 
 right: The public performance of a play is 
 not such publication; Boucicault v. Wood, 2 
 Biss. 34, Fed. Cas. No. 1,693; Boucicault v. 
 Hart, 13 Blatchf. 47, Fed. Cas. No. 1,692; 
 the private circulation of even printed copies 
 of a book is not; Bartlett v. Crittenden, 5 
 McLean 32, Fed. Cas. No. 1,076 ; Keene v. 
 Wheatley & Clarke, 9 Am. L. Reg. 33, Fed. 
 Cas. No. 7,644; 1 Macn. & G. 25; the deposit 
 of a chart with the secretary of the navy 
 with an express agreement that it was not 
 to be published, is not; Blunt v. Patten, 2 
 Paine, 393, Fed. Gas. No. 1,579; see generally, 
 Palmer v. De Witt, 47 N. Y. 532, 7 Am. Rep. 
 488. Publication of a manuscript constitutes 
 a dedication to the public; Carte v. Duff, 25 
 Fed. 183; Tompkins v. Halleck, 133 Mass. 
 32, 43 Am. Rep. 480; the sale of a picture 
 unconditionally carries with it the right of 
 making copies of it and the publication 
 thereof; Parton v. Prang, 3 Cliff. 537, Fed. 
 Cas. No. 10,784. A picture which is public- 
 ly exhibited without having inscribed upon 
 some visible portion of it, or upon the sub- 
 stance on which it was mounted, the notice 
 required by the statute, is published; Pierce 
 & Bushnell Mfg. Co. v. Werckmeister, 72 
 Fed. 54, 18 C. C. A. 431. But entering an 
 original painting with the copyright reserved 
 at an exhibition of the Royal Academy 
 whose by-laws prohibit copying, was held 
 not such a publication ; American Tobacco 
 Co. v. Werckmeister, 207 U. S. 284, 28 Sup. 
 Ct. 72, 52 L. Ed. 208, 12 Ann. Cas. 595. 
 
 The remedy for an infringement of copy- 
 right is threefold. By an action of debt for 
 
 certain penalties and forfeitures given by 
 the statute. By an action on the case at 
 common law for damages, founded on the 
 legal right and the injury caused by the 
 infringement. The action must be case, and 
 not trespass; Atwill v. Ferrett, 2 Blatchf. 
 39, Fed. Cas. No. 640. By a bill in equity 
 for an injunction to restrain the further in- 
 fringement, as an incident to which an ac- 
 count of the profits made by the infringer 
 may be ordered by the court; 2 Morg. Lit. 
 706; 6 Ves. 705; 8 id. 323; 9 id. 341; 1 Russ. 
 & M. 73, 159; 1 Y. & C. 197; 2 Hare 560; 
 though it cannot embrace penalties ; Stevens 
 v. Cady, 2 Curt. C. C. 200, Fed. Cas. No. 
 13,395 ; Atwill v. Ferrett, 2 Blatchf. 39, Fed. 
 Cas. No. 640. 
 
 An injunction may go against an entire 
 work or a part; 2 Russ. 393; Emerson v. 
 Davies, 3 Sto. 768, Fed. Cas. No. 4,436; 2 
 Beav. 6; 2 Brown, Ch. 80; though the court 
 will not interfere where the extracts are 
 trifling; 2 Swanst. 428; 1 Russ. & M. 73; 
 2 id. 247. 
 
 The remedies of forfeiture and penalty 
 and of injunction given to the owner of a 
 copyrighted map under the former act in, 
 case of infringement are exclusive and pre- 
 clude any resort to an action at law to re- 
 cover damages sustained ; Globe Newspaper- 
 Co. v. Walker, 210 U. S. 356, 28 Sup. Ct.. 
 726, 52 L. Ed. 1096. 
 
 An injunction to restrain the infringement 
 of the rights of the owner of one directory 
 by another will be limited to the extent to. 
 which the two books are identical ; List 
 Pub: Co. v. Keller, 30 Fed. 772. 
 
 Where the extracts of a copyrighted work 
 are scattered through the defendant's book 
 in such manner that the two cannot be dis- 
 tinguished and separated, the court may en- 
 join the defendant's book as a whole, but if 
 the matters can be separated the injunction 
 should extend only to the copyrighted mat- 
 ter; Farmer v. Elstner, 33 Fed. 494. Where 
 the author's pirated paragraphs of a digest 
 can be separated from paragraphs not sub- 
 ject to criticism, the injunction should be 
 restricted to the infringing paragraphs, even 
 though it might consume a decade to ex- 
 amine the paragraphs of the digest and com- 
 pare them. This will not relieve the com- 
 plainant from the burden of proving his 
 case; West Pub. Co. v. Pub. Co., 64 Fed. 
 360, 25 L. R. A. 441. Although the court is 
 not convinced that a compilation which 
 wrongfully appropriates extracts from the 
 plaintiff's copyrighted work will injure its 
 sale, yet an injunction in a proper case may 
 be granted. Actual pecuniary damage is not 
 the sole right to enjoining violation of copy- 
 right; Farmer v. Elstner, 33 Fed. 494. 
 
 The practice of one newspaper copying 
 literary matter from another is no defence 
 to an action for the infringement of a copy- 
 right; [1S92] 3 Ch. 4S9, where the cases are 
 collected.
 
 COPYRIGHT 
 
 679 
 
 COPYRIGHT 
 
 There may be a piracy: 1st. By reprint- 
 ing the whole or part of a book verbatim. 
 The mere quantity of matter taken from a 
 book is not of itself a test of piracy; 3 M. 
 & C. 737; the court will look at the value 
 or quality more than the quantity taken ; 
 Gray v. Russell, 1 Sto. 11, Fed. Cas. No. 
 5,728. Extracts and quotations fairly made, 
 and not furnishing a substitute for the book 
 itself, or operating to the injury of the 
 author, are allowable; 17 Ves. 422; 1 Campb. 
 94; Alibi. 694; 2 Swanst. 428; Folsom v. 
 Marsh, 2 Sto. 100, Fed. Cas. Xo. 4,901; 2 
 Russ. 383; 2 Beav. 6; 11 Sim. 31. A "fair 
 use" of a book, by way of quotation or oth- 
 erwise, is allowable; Lawrence v. Dana. 4 
 Cliff. 1, Fed. Cas. No. 8,136; L. R. 8 Ex. 
 1; L. R. IS Ei]. 444; L. R. 5 Ch. 251; it may 
 be for purposes of criticism, but so as not 
 to supersede the work itself; Lawrence v. 
 Dana, 4 Cliff. 1, Fed. Cas. No. 8,136: L. R. 
 8 Ex. 1; Harper v. Shoppell, 20 Fed. 519; or 
 In a later work to the extent of fair quo- 
 tation ; 11 Sim. 31 ; Folsom v. Marsh. 2 Sto. 
 100, Fed. Cas. No. 4.901 ; in compiling a di- 
 rectory, but not so as to save the compiler 
 all independent labor; List rub. Co. v. Kel- 
 ler, 30 Fed. 772; L. R. 1 Eq. 697; 7 id. 34; 
 id. 5 Ch. 279; a descriptive catalogue of 
 fruit, etc.; L. R. 18 Eq. 444; a book on eth- 
 nology; L. R. 5 Ch. 251; a dictionary, pro- 
 vided the new book may fairly be. considered 
 a new work; 31 L. T. R. 16. l See West Pub. 
 Co. v. Pub. Co., 64 Fed. 360, 25 L. R. A. 
 441, for a full discussion. 
 
 2d. By imitating or copying, with color- 
 able alterations and disguises, assuming the 
 appearance of a new work. Where the re- 
 semblance does not amount to identity of 
 parallel passages, the criterion is whether 
 there is such similitude and conformity be- 
 tween the two books that the person who 
 wrote the one must have used the other as 
 a model, and must have copied or imitated 
 it; see 5 Ves. 24; 16 id. 269, 422; 2 Brown, 
 Ch. 80; 2 Russ. 3S5; 2 S. & S. 6 ; 1 Campb. 
 94; Gray v. Russell, 1 Sto. 11, Fed. Cas. 
 No. 5.72*; Emerson v. Davies, 3 Sto. 70S, 
 Fed. Cas. No. 4,436 ; Webb v. Powers, 2 W. 
 & M. 497, Fed. Cas. No. 17,323; Blunt v. 
 Patten, 2 Paine 393, Fed. Cas. No. 1,579, 
 which was the case of a chart. A fair and 
 bona fide abridgment has in some cases 
 been held to be no infringement of the copy- 
 right ; 1 Morg. Lit. 319, 343; 2 Atk. 141; 1 
 Brown, Ch. 451; 5 Ves. 709; Lawrence v. 
 Dana, 4 Cliff. 1, Fed. Cas. No. S,136; 1 Y. 
 & C. 29S ; Story v. Holcombe, 4 McLean 300, 
 Fed. Cas. No. 13,497; Folsom v. Marsh, 2 
 Sto. 105, Fed. Cas. No. 4,901; 2 Kent 382; 
 see 3 Am. L. Reg. 129. But Drone, Copyright 
 440, maintains the contrary doctrine. A 
 booklet entitled "Opera Stories," consisting 
 of mere fragmentary statements of the story 
 and characters of the operas, taken from 
 descriptions other than librettos, is not an 
 
 infringement of the copyrights on the li- 
 brettos; Ricordi & Co. v. Mason, 201 Fed 
 182. 
 
 "The true test of piracy, then, is not 
 whether a composition is copied in the same 
 language or the exact words of the original, 
 but whether in substance it i- reproduced; 
 not whether the whole or whether a mate- 
 rial part is taken. In this view of the sub- 
 ject it is no defence of piracy that the 
 entitled to protection has not been c 
 literally; that it has been translated into 
 another language; that it has been drama- 
 tized; that the whole has not been taken; 
 that it bas been abridged; that it is i 
 duced in a new and more useful form. The 
 controlling question always is whether the 
 substance of the work is taken without au- 
 thority;" Drone, Copyr. 385. 
 
 An author may resort with full liberty to 
 the common sources of information and 
 make use of the common materials open to 
 all. but his work must be the result of his 
 own independent labor; Simms v. Stanton, 
 75 Fed. 6. 
 
 A subsequent compiler of a directory is 
 only required to do for himself that which 
 the first compiler has done. He may not use 
 a previous compilation to save himself 
 trouble, though he do 'so but to a very lim- 
 ited extent; but he may use the former work 
 to verify the spelling of names or the cor- 
 rectness of the addresses; List Pub. Co. v. 
 Keller, 30 Fed. 772. 
 
 The compiler of a digest may compare 
 notes, abstracts, and paragraphs from opin- 
 ions of the courts and from syllabi prepared 
 by the courts, and may digest such opinions 
 and syllabi from printed copies and pub- 
 lished in a copyrighted system, but he may 
 not copy the original work of the reporter, 
 or use his work in any way in order to light- 
 en his labors, though he may use it to verify 
 his own accuracy, to detect errors, etc. ; 
 West Pub. Co. v. Pub. Co., 04 Fed. 3 
 L. R. A. 441. The author of a law book 
 may copy the citations of a prior author if 
 he examines and verifies the cases cited and 
 may use them in the same order and with 
 additions and subtractions; White v. len- 
 der, 185 Fed. 021. A copyrighted law book 
 is not infringed by the collection by another 
 author of the cases cited therein for use in 
 another publication; Thompson Co. v. Law 
 Book Co., 122 Fed. 922. 59 C. C. A. ] 
 L. R. A. 007. 
 
 The singing of a single verse and chorus 
 of a copyrighted song without musical ac- 
 companiment, in imitation of the voice, post- 
 ures and mannerisms of another, is not an 
 infringement; Green v. Minzensheimer, 177 
 Fed. 286; hut contra, where one sings an 
 entire copyrighted song with musical ac- 
 companiment she is guilty of infringement, 
 though she intends merely to mimic anoth- 
 er; Green y. Minzensheimer, 177 Fed. 2b7.
 
 COPYRIGHT 
 
 6S0 
 
 COPYRIGHT 
 
 Mere fragmentary scenes of various operas 
 do not infringe the copyrighted librettos; 
 Ricordi & Co. v. Mason, 201 Fed. 184. 
 
 Moving pictures depicting the story of an 
 author's work are a dramatization of it and 
 infringe the copyright ; Kalem Co. v. Harp- 
 er Bros., 222 U. S. 55, 32 Sup. Ct. 20, 56 L. 
 Ed. 92, Ann. Cas. 1913A, 12S5. 
 
 A translation has been held not to be a vi- 
 olation of the copyright of the original; 
 Stowe v. Thomas, 2 Wall. Jr. 547, Fed. Cas. 
 No. 13,514. The correctness of this decision 
 is questioned in Drone, Copyr. 455. 
 
 When the infringement of a copyright is 
 established the question of inteut is imma- 
 terial ; Fishel v. Lueckel, 53 Fed. 499. 
 
 A copyrighted compilation, comprising 
 lists of trotting and pacing horses with their 
 speed, is infringed by one who uses the table 
 to make up records of horses of 2.30 or 
 better, notwithstanding the fact that the 
 latter compilation might have been made 
 by the defendant from other publications 
 valuable to him ; American Trotting Regis- 
 ter Ass'n v. Gocher, 70 Fed. 237. 
 
 Damages. Where the infringing material 
 is so intermingled with the rest of the con- 
 tents as to be almost incapable of separa- 
 tion, the infringer is liable for the entire 
 profit realized from the book ; Callaghan v. 
 Myers, 128 U. S. 617, 9 Sup. Ct. 177, 32 L. 
 Ed. 547 ; National Hat Pouncing Mach. Co. 
 v. Hedden, 148 TJ. S. 488, 13 Sup. Ct. 680, 37 
 L. Ed. 529. Where the infringing publica- 
 tion uses only a part of the original matter 
 and is issued in a cheaper form, the meas- 
 ure of damages is the profit realized by the 
 infringer, and not what the copyright own- 
 er would have realized by a sale of an equal 
 number of the original copyright work ; 
 Scribner v. Clark, 50 Fed. 473. 
 
 The owner of a copyright who wishes to 
 sell the published work directly and only to 
 individual subscribers, through canvassers 
 employed by him, will be protected from 
 interference by other dealers who have sur- 
 reptitiously obtained copies without his con- 
 sent and offered them for sale ; Bill Pub. Co. 
 v. Smythe, 27 Fed. 914. But it has been 
 held that the owner of a copyright trans- 
 ferring the title of copyrighted books under 
 an agreement restricting their use, cannot, 
 under the copyright statutes, restrain sales 
 of books in violation of the agreement ; Har- 
 rison v. Maynard, Merrill & Co., 61 Fed. 6S9, 
 10 C. C. A. 17; the remedy is confined to 
 the breach of the contract ; id. 
 
 A notice on a copyright book that it must 
 not be sold for less than a specified price 
 does not reserve any right to the copyright 
 owner, nor limit the absolute title acquired 
 by purchaser; Bobbs-Merrill Co. v. Straus, 
 139 Fed. 155, affirmed in 147 Fed. 15, 77 C. C. 
 A. 607, and 210 U. S. 339, 28 Sup. Ct. 722, 
 52 L. Ed. 1086. 
 
 The words "Webster's Dictionary" are pub- 
 lie property by reason of the expiration of 
 
 the copyright in the dictionary ; Merriam v. 
 Clothing Co., 47 Fed. 411. 
 
 One who buys copies of a publication 
 which violates copyright and sells them 
 again is liable for the profit on his sales; 
 Myers v. Callaghan, 24 Fed. 636. 
 
 Copyright is based on statute, while un- 
 fair competition, except as affected by legis- 
 lative enactment in connection with patents, 
 trade-marks, etc., is dependent on abstract 
 principles of law. Copyright relates to the 
 printed material of a publication, while un- 
 fair competition may be concerned with any 
 article of trade whether having words or 
 letters in its composition and appearance or 
 not; West Pub. Co. v. Edward Thompson 
 Co., 176 Fed. 833, 100 C. C. A. 303. 
 
 The British copyright code went into ef- 
 fect July 1, 1912. Australia adopted a code 
 in 1905 and Canada in 1911. 
 
 See Literary Property; Bowker, Copy- 
 right 
 
 International Copyright. Under the reci- 
 procity clause of the Act of March 4, 1909, 
 the President made proclamations April 9, 
 1910, that the following countries were en- 
 titled to all the benefits of the acts, except- 
 ing those under section 1 (e): Austria, Bel- 
 gium, Chile, Costa Rica, Cuba, Denmark, 
 France, Germany, Great Britain and posses- 
 sions, Italy, • Mexico, Netherlands and pos- 
 sessions, Norway, Portugal, Spain and 
 Switzerland. A like proclamation was made 
 as to Luxemburg, June 29, 1910 ; as to 
 Sweden, May 26, 1911; as to Tunis, Octo- 
 ber 4, 1912. 
 
 The benefits of the act as to section 1 (e) 
 were extended by proclamation: to Ger- 
 many, December S, 1910 ; Belgium, June 14, 
 1911; Cuba, November 27, 1911; Luxem- 
 burg, June 14, 1911 ; and Norway, June 14, 
 1911. 
 
 A copyright convention with Hungary 
 went into effect October 15, 1912. 
 
 The United States, as a party only to the 
 Pan-American Union and not a member of 
 the International Copyright Union under the 
 Berne-Berlin Conventions, has not .secured 
 for its citizens general rights of copyright 
 in other countries, without repetition of for- 
 malities, and such rights are secured only 
 by reciprocity in the countries designated by 
 presidential proclamation and according to 
 the formalities of their domestic legislation. 
 The International Copyright Union held a 
 convention in Berlin, 190S, which replaced, 
 in the relations between the contracting 
 states, the Convention of Berne of 1SS6, with 
 the additional act and the interpretative 
 declaration of 1S96. Fifteen signatory pow- 
 ers of the Union attended, including France, 
 Germany and Great Britain; the United 
 States was not a signatory power. Twenty 
 non-Union powers also attended the Confer- 
 ence, including the United States whose 
 delegate, Thorvald Solberg, while stating 
 that it was not deemed possible by the Unit-
 
 COPYRIGHT 
 
 681 
 
 COKN 
 
 ed States to send a plenipotentiary delegate, 
 also expressed the sympathy of the United 
 States with the purposes of the Union. See 
 Bowker, Copyright. 
 
 CORAAGIUM or C0RAA6E. Measures of 
 corn. An unusual and extraordinary tribute, 
 arising only on special occasions. They are 
 thus distinguished from services. Mention- 
 ed in connection with hidage and carvaye. 
 Cowell. 
 
 CORAM IPSO REGE (Lat.). Before the 
 king himself. Proceedings in the court of 
 king's bench are said to be coram regc ipso. 
 3 Bla. Com. 41. 
 
 CORAM NOBIS. A writ of error on a 
 judgment in the king's bench is called a 
 coram nobis (before us). 1 Archb. Pr. 234. 
 See Coram Vobis. 
 
 CORAM NON JUDICE. Acts done by 
 court which has no jurisdiction either over 
 the person, the cause, or the process, are 
 said to be coram -non judice. Gruinon v. 
 Raymond, 1 Conn. 40, 6 Am. Dec. 200. Such 
 ads have no validity. If an act is required 
 to be done before a particular person, it 
 would not be considered as done before him 
 if he were asleep or non compos mewtti; 
 Wickes' Lessee v. Caulk, 5 Harr. <& J. (Md.) 
 42; Griffith v. Frazier, 8 Cra. (U. S.) 9, 3 
 L. Ed. 471; Fisher v. Harnden, 1 Paine 55, 
 Fed. Cas. No. 4,819; 1 Prest. Conv. 266. 
 
 CORAM PARIBUS. In the presence of 
 the peers or freeholders. 2 Bla. Com. 307. 
 
 CORAM VOBIS. A writ of error directed 
 to the same court which tried the cause, to 
 correct an error in fact. Bridendolph v. 
 Zellers' Ex'rs, 3 Md. 325; 3 Steph. Com. 
 642. 
 
 If a judgment in the King's Bench be erroneous 
 in matter of fact only, and not in point of law, it 
 may be reversed in the same court by writ of error 
 coram nobis (before us), or quae coram nobis resi- 
 dant; so called from its being founded on the rec- 
 ord and process, which are stated in the writ to re- 
 main in the court of the king before the king him- 
 self. But if the error be in the judgment itself, and 
 not in the process, a writ of error does not lie in 
 the same court upon such judgment. 1 Rolle, Abr. 
 746. In the Common Pleas, the record and proceed- 
 ings being stated to remain before the king's jus- 
 tices, the writ is called a writ of error coram vobis 
 (before you) or qucs coram vobis residant. 3 Chit. 
 Bla. Com. 406, n. 
 
 CORD. A measure of wood, containing 
 128 cubic feet. See Kennedy v. R. Co., 67 
 Barb. (N. Y.) 169. 
 
 CO-RESPONDENT. Any person called 
 upon to answer a petition or other proceed- 
 ing, but now chiefly applied to a person 
 charged with adultery with the husband or 
 wife, in a suit for divorce, and made joint- 
 ly a respondent to the suit. See Drvro 
 
 CORN. In its most comprehensive sense, 
 this term signifies every sort of grain, as 
 well as peas and beans ; this is its meaning 
 in the memorandum usually contained in 
 policies of insurance. But it does not in- 
 
 clude rice; Park, Ins. 112; 1 Marsh. Ins. 
 223, n.; "Wesk. Ins. 145. See Com. Dig. Mens 
 (G, 1). In the United usually m 
 
 maize, or Indian corn ; Sullins v. State, 53 
 Ala. 474. 
 
 CORN-LAWS. Laws regulating the trade 
 in bread-stuffs. 
 
 The object of corn laws is to secure a regular and 
 steady supply of the great staples of food : and for 
 this object the means adopted in different countries 
 and at different times widely vary, sometimes In- 
 volving restriction or prohibition upon the export, 
 and sometimes, in order to stimulate production, 
 offering a bounty upon the export. Of the former 
 character was the famous system of corn laws of 
 England, initiated in 1773 by Burke, and repealed 
 in 1816 under Sir Robert Peel. See Cobden's Life. 
 
 CORN RENTS. Rents reserved in wheat 
 or malt in certain university leases In Eng- 
 land. Stat. 18 Eliz. c. 6; 2 Bla. Com. 322 
 
 CORNAGE. A species of tenure in 
 land, by which the tenant was bound to blow 
 a horn for the sake of alarming the country 
 on the approach of an enemy. Bac. Abr. 
 Tenure (X.). 
 
 CORNET. A commissioned officer in a 
 regiment of cavalry, abolished in England in 
 1871, and not existing in the United States 
 army. 
 
 C0R0DY. An allowance of meat, drink, 
 money, clothing, lodging, and such like neces- 
 saries for sustenance. 1 Bla. Com. 283 ; l 
 Chit. Pr. 2:25. An allowance from an abbey 
 or house of religion, to one of the king's 
 servants who dwells tin rein, of meat and 
 other sustenance. Fltzh. X. B. 230. 
 
 An assize lay for a corody; Cowell. I 
 dies are now obsolete; Co. 2d Inst. 0"": - 
 Bla. Com. 40. 
 
 CORONATION. It "is but a royal orna- 
 ment and solemnization of the royal descent, 
 but no part of the title." By the laws of 
 England there can be no interregnum: 7 < '<■. 
 Rep. 10 b. 
 
 CORONATION OATH. The oath adminis- 
 tered to a sovereign in England before 
 nation. Wbart Law Die. lt< form was 
 somewhat changed at the coronation of Ed 
 ward VII. 
 
 C0R0NAT0R (Lat). A coroner. Spel. 
 
 C0R0NAT0RE EX0NERAND0. A writ 
 for the removal of a coroner, for a cause 
 therein assigned. 
 
 CORONER. An officer whose principal 
 duty it is to hold an inquisition, with the 
 assistance of a jury, over the body of any 
 person who may have come to a violent 
 death, or who has died in prison. 
 
 It is his duty, in case of the death of the 
 sheriff or his Incapacity, or when a vacancy 
 occurs in that office, to serve all the writs 
 and processes which the sheriff is usually 
 bound to serve; Gunby v. Welcher, 20 Ga. 
 336; Brown v. Barker, 10 Humph. (Tenn.)
 
 CORONER 
 
 682 
 
 CORPORAL 
 
 346 ; Manning v. Keenan, 73 N. Y. 45 ; 1 Bla. 
 Com. 349. See Sheriff. 
 
 Coroners were county officers placed be- 
 side the sheriff to look after the adminis- 
 tration of criminal justice and the revenue 
 to the king resulting therefrom; Brunner, 2 
 Sel. Essays in Anglo-Amer. L. H. 31. See 
 Gross, History of Coroners. It is supposed 
 that the first institution of coroners dates 
 from 1194. The office may have existed be- 
 fore then. 2 Holdsw. Hist. E. L. 45; Pol- 
 lock, King's Peace, 2 Sel. Essays in Anglo- 
 Amer. L. H. 410. 
 
 It was also the coroner's duty to inquire 
 concerning shipwreck, and to find who had 
 possession of the goods ; concerning treas- 
 ure-trove, who were the finders, and where 
 the property was ; 1 Bla. Com. 349. The 
 stat. 4 Edw. I. ch. 2 (1276), entitled "Z>e Of- 
 ficio Coronatoris," empowered the coroner 
 to inquire who was slain and who were 
 there, who and in what manner they were 
 culpable of the act or force. Whoever was 
 found culpable was turned over to the sher- 
 iff, and whoever was not culpable was at- 
 tached until the coming of the justices. The 
 Chief Justice of the King's Bench was the 
 chief coroner of all England ; though he did 
 not perform the active duties of that office 
 in any one county; 4 Co. 57 6; Bac. Abr. 
 Coroner; 3 Com. Dig. 242; 5 id. 212. 
 
 Coroners were abolished in Massachusetts 
 in 1877, and "men learned in the science of 
 medicine" are appointed to make autopsies 
 and in case of a violent death to report it 
 to a justice of the district. 
 
 In England a coroner (one in every county 
 and in certain boroughs) holds a court of 
 record; his jury of inquest consists of not 
 less than 12 nOr more than 23 persons. Up- 
 on a verdict of the jury, the coroner can 
 commit the accused for trial and he may be 
 arraigned without any presentment by a 
 grand jury. Odgers, C. L. 1031. 
 
 A coroner is a "judicial officer" within a 
 bribery act; People v. Jackson, 191 N. Y. 
 293, 84 N. E. 65, 15 L. R. A. (N. S.) 1173, 
 14 Ann. Cas. 243. 
 
 It is proper for a coroner in most cases 
 of homicide to cause an examination to be 
 made by a physician, and in many cases 
 it is his duty so to do ; 4 C. & P. 571. See 
 Jameson v. Board of Com'rs of Bartholo- 
 mew County, 64 Ind. 524; Sahford v. Lee 
 County, 49 la. 148 ; Cook v. Multnomah Coun- 
 ty, 8 Or. 170. 
 
 In Coroner's Duties, 20 D. R. (Pa.) 685, 
 Sulzberger, P. J., instructed the coroner as 
 to his duties in Pennsylvania, where the 
 practice has been much modified, to the ef- 
 fect that the district attorney should always 
 be present at the coroner's inquest and that 
 he has power to cross-examine witnesses; 
 also that if the district attorney is of opin- 
 ion that there is no evidence to hold the 
 person charged, he should be discharged, but 
 not otherwise. 
 
 CORPORAL (Lat. corpus, body). Bodily; 
 relating to the body: as, corporal punish- 
 ment. 
 
 A non-commissioned officer of the lowest 
 grade in an infantry, cavalry, or artillery 
 company. 
 
 CORPORAL OATH. An oath which the 
 party takes laying his hand on the gospels. 
 Cowell. It is now held to mean solemn oath. 
 Jackson v. State, 1 Ind. 184. 
 
 CORPORAL TOUCH. Actual, bodily con- 
 tact with the hand. 
 
 It was once held that before a seller of 
 personal property could be said to have 
 stopped it in transitu, so as to regain the 
 possession of it, it was necessary that it 
 should come to his corporal touch; but the 
 contrary is now settled. These words were 
 used merely as a figurative expression. 3 
 Term 464; 5 East 184. 
 
 CORPORATION. A body, consisting of 
 one or more natural persons, established by 
 law, usually for some specific purpose, and 
 continued by a succession of members. 
 
 "An artificial being created by law and 
 composed of individuals who subsist as a 
 body politic under a special denomination 
 with the capacity of perpetual succession 
 and of acting within the scope of its char- 
 ter as a natural person." Fietsam v. Hay, 
 122 111. 293. By fiction it is partly a per- 
 son and partly a citizen, yet it has not the 
 inalienable rights of a natural person; 
 Northern Securities Co. v. United States, 193 
 U. S. 200, 24 Sup. Ct. 436, 48 L. Ed. 679. 
 
 A corporation aggregate is a collection of 
 individuals united in one body by such a 
 grant of privileges as secures succession of 
 members without changing the identity of 
 the body and constitutes the members for 
 the time being one artificial person or legal 
 being capable of transacting the corporate 
 business like a natural person. Bronson, J., 
 People v. Assessors of Village of Watertown, 
 1 Hill (N. Y.) 620. 
 
 For a long time the prevailing theory on the Con- 
 tinent of Europe of the true nature of corporate 
 bodies was that the personality of a corporation was 
 a mere legal fiction, and its rights derived in every 
 case from a special creation by the state. But of 
 late years writers of considerable authority have 
 taken the view that the legal existence or person- 
 ality of a corporation, though limited in various 
 ways, is quite as real as that of an individual; 
 Pollock, First Book of Jurispr. 113, where various 
 authorities are referred to, and the author expresses 
 his belief that the latter view is sounder. The cor- 
 poration in England was the joint result of certain 
 groups in ecclesiastical life and certain other groups 
 'active in temporal affairs. For centuries the de- 
 velopment of each was wholly independent of the 
 other. The boroughs first began to secure from the 
 king franchises to hold their own courts, to their 
 own customs and freedom from toll. A borough had 
 two organizations — gild and governmental. They 
 were connected, but not identical. The franchises 
 were in the form of a grant from the king and 
 were made to the burgesses. No legal person was 
 created, but the burgesses died and their privileges 
 were continued to their successors. When individ- 
 ual inhabitants of the borough offended the king 

 
 CORPORATION 
 
 683 
 
 CORPORATION 
 
 try their acts, he took away the franchise of the 
 borough as a punishment, which punishment fell on 
 the community. Once in such a case the London- 
 ers prayed that only the guilty might be punished; 
 Riley, Chronicles 84. The king treated the bur- 
 gesses as a group and the burgesses in respect to 
 their property acted as a group. 
 ' The same idea developed in ecclesiastical life. 
 For wholly different reasons, religious groups were 
 formed. The basic doctrines of the Christian church 
 require co-operation and also continuity of thought 
 and effort. Monasteries, convents and chapters were 
 the result. It became evident that this indefinite 
 something produced by the association of several 
 should be given a name and its status established. 
 There was much blind groping after the nature of 
 this indefinite something. For a time the idea 
 naturally suggested by the analogy of the human 
 body was applied to these groups. The chief officer, 
 as the mayor or the bishop, was the head and the 
 members were the arms, legs, etc. This was called 
 the anthropomorphic theory and for a long time 
 obscured the true corporate idea; 1 Poll. & Maitl. 
 (2d ed.) 491, and citations of the year books there 
 given ; 19 Harv. L. Rev. 350. 
 
 Finally, however, the oneness of these groups was 
 given a definite recognition, not as a real, but as an 
 ideal or legal person. The conception of an ideal 
 person having legal rights and duties was bor- 
 rowed directly from the early English theory as to 
 church ownership. In very early times, several 
 centuries at least before the reign of Edward I., 
 there were in England what were vaguely known as 
 church lands. At first the land was given direct 
 to God. Sometimes it was given to a particular 
 saint, who was supposed to guard and protect it. 
 Little by little, the saint and the buildings became 
 merged In each other and the church itself was 
 thought to be the property owner. The functions of 
 ownership were necessarily performed by human 
 beings— by the clergy— and the theory was natu- 
 rally extended to cases where there was only one 
 cleric. Thus was introduced the corporation sole, 
 characterized as "that unhappy freak of English 
 law" ; 1 Poll. & Maitl. 488. In ecclesiastical affairs, 
 the corporation aggregate was almost resolved into 
 a mere collection of corporations sole ; id. 607. See 
 infra. 
 
 It was not until about the middle of the 15th cen- 
 tury that it was settled as a matter of positive law 
 that the corporation must be created by the sover- 
 eign power, which rule arose simply from consid- 
 erations of political expediency. Recognizing that 
 boroughs, organized communities and gilds might 
 become dangerous, the king made them a source of 
 revenue by selling the privilege to exist. In 1440 
 the first municipal charter was granted. The may- 
 or, burgesses and their successors, mayors and bur- 
 gesses of the town of Kingston-upon-Hull, were in- 
 corporated so as to form "one perpetual corporate 
 commonalty." 19 Harv. L. Rev. 350. 
 
 "What we call a corporation was first called 'un 
 corps' or a body, whence our 'body politic,' or 'body 
 corporate'; or 'un gros' or something that had an 
 existence in itself, apart from its constituents. 
 Thus there* was gradually evolved the idea of an 
 abstract artificial individuality, composed of mem- 
 bers for the time being, to be succeeded by others 
 after them, but continuing after their death. This 
 became the persona ficta of a later time." A. M. 
 Eaton in 1902 Amer. Dar Assoc. Repts. 320. Refer- 
 ring to the earlier historical days, the same author 
 says, (p. 322): "There was no intention on either 
 part to form a corporation, indeed neither knew 
 what a corporation was; for the name did not 
 exist, but the thing itself was being gradually 
 evolved." 
 
 For the history of corporations before 1800, see 
 Williston, 2 Harv. L. Rev. 149 (3 Sel. Essays in An- 
 glo-Amer. L. H. 195); Baldwin, History of Private 
 Corp., 3 Sel. Essays in Anglo-Amcr. L. H. 236. 
 
 For centuries the leading case on corporations in 
 England was the case of Sutton's Hospital, 10 Co. 
 1 (1612), where the king, on the petition of Sutton, 
 had granted a charter to a hospital. Sutton con- 
 veyed land to such corporation. Against the con- 
 
 tention of the heir that there was no corporation 
 and that the conveyance was void, it was held that 
 both the incorporation and the deed were valid and 
 that the incorporation of the persons might pre- 
 cede the foundation of the hospital; 21 Harv. L. 
 Rev. 305. 
 
 It was considered at that time that corporations 
 aggregate could not commit treason, nor be out- 
 lawed nor excommunicated, for tht-y have no souls. 
 Neither can they appear in person, but by attor- 
 ney ; they cannot do fealty, for an invisible body 
 can neither be in person nor swear ; 10 Cok> 
 Blackstone said it can neither maintain nor be de- 
 fendant to an action of battery or such like personal 
 injuries, for a corporation can neither beat, nor 
 be beaten, in its body politic ; 1 Bla. Com. 
 could not be executor or administrator or perform 
 any personal duties, for It could not take an oath 
 for the due execution of the office; id. 
 
 The fiction that a corporation can do nothing but 
 by an attorney, that it was an artificial being, 
 guarded by the body of associates forming it, led 
 to the theory that its administrative officers could 
 exercise only a delegated authority; 21 Harv. L. 
 Rev. 535. It is said that under the pressure of mod- 
 ern analysis this fiction tends to yield to more ra- 
 tional ideas, and corporate action is perceived more 
 truly as simple group action; id. A corporation 
 represents the most advanced attainment of the 
 group idea; 19 id. 350. 
 
 The first business corporate charter In the United 
 States was in 1768: "The Philadelphia Contribu- 
 tionship for Insuring Houses from Loss by Fire." 
 
 Aggregate corporations are those which 
 are composed of two or more members at 
 the same time. 
 
 Civil corporations are those which are 
 created to facilitate the transaction of busi- 
 ness. 
 
 Ecclesiastical corporations are those which 
 are created to secure the public worship of 
 God. 
 
 Eleemosynary corporations are those which 
 are created for the purposes of charities, 
 such as schools, hospitals, and the like. 
 
 Lay corporations are those which exist 
 for secular purposes. 
 
 Municipal corporations are those ci 
 for the purpose of administering some por- 
 tion of the government in a political sub- 
 division of the stale, as a city, county, etc. 
 
 Private corporations are those which are 
 created wholly or in part, for purposes of 
 private emolument Trustees of Dartmouth 
 College v. Woodward, 4 Wheat (TJ. S. 
 4 L. Ed. 629; Bank of United States v. Bank, 
 9 Wheat. (U. S.) 907, G L. Ed. 244, 
 
 Public corporations are those which are 
 exclusively instruments of the public inter- 
 est. 
 
 Corporations sole are those which by law 
 consist of but one member at any one time, 
 as a bishop in England. But see infra; also 
 supra. 
 
 In the Dartmouth College Case, i Wheat. 
 (U. S.) 866, i I- Eld. 629, Mr. Justice Story 
 defined the various kinds of corporations as 
 follows : 
 
 "An aggregate corporation at common 
 law is a collection of individuals united into 
 one collective body, under a special name, 
 and possessing certain immunities, privi- 
 leges, and capacities in its collective char- 
 acter, which do not belong to the natural
 
 CORPORATION 
 
 684 
 
 CORPORATION 
 
 persons composing it. ... A great va- 
 riety of these corporations exist in every 
 country governed by the common law ; 
 . . . some of these corporations are, from 
 the particular purposes to which they are de- 
 voted, denominated spiritual, and some lay; 
 and the latter are again divided into civil 
 and eleemosynary corpox*ations. Eleemosy- 
 nary corporations are such as are constitut- 
 ed for the perpetual distribution of the free 
 alms and bounty of the founder. . . . 
 In this class are ranked hospitals, and col- 
 leges, etc. Another division of corporations 
 is into public and private. Public corpora- 
 tions are generally esteemed such as exist 
 for public and political purposes only, such 
 as towns, cities, etc. Strictly speaking, pub- 
 lic corporations are such only as are found- 
 ed by the government for public purposes, 
 where the whole interests belong also to the 
 government. If, therefore, the foundation 
 be private, though under the charter of the 
 Government, the corporation is private. 
 . . . For instance, a bank created by the 
 Government for its own uses, whose stock 
 is exclusively owned by the government, is, 
 in the strictest sense, a public corporation. 
 So a hospital created and endowed by the 
 government for general charity. But a 
 bank, whose stock is owned by private per- 
 sons, is a private corporation. . . . The 
 same doctrine may be affirmed of insurance, 
 canal, bridge, and turnpike companies. In 
 all these cases, the uses may, in a certain 
 sense, be called public, but the corporations 
 are private. . . . This reasoning applies 
 in its full force to eleemosynary corpora- 
 tions. . . . This is the unequivocal doc- 
 trine of the authorities ; and cannot be 
 shaken but by undermining the most solid 
 foundations of the common law." 
 
 Kent divides corporations into ecclesias- 
 tical and lay, and lay corporations into 
 eleemosynary and civil;. 2 Kent 274. 
 
 It has been held that a public corporation 
 is one that cannot carry out the purposes 
 of its organization without certain rights un- 
 der its charter from the commonwealth, and 
 that mere private corporations are those 
 that need no franchise from the state to 
 carry out such purposes; Allegheny Co. v. 
 Diamond Market, 123 Pa. 164, 16 Atl. 619. 
 But Judge Thompson doubts as to whether 
 these divisions promote clear conceptions 
 of the law ; 1 Thomp. Corp. § 22; he con- 
 siders that a more practical conception 
 would divide them into three classes : public- 
 municipal corporations, to promote the pub- 
 lic interest; corporations technically private 
 but of quasi public character, such as rail- 
 roads etc. ; and corporations strictly pri- 
 vate; id. § 37. 
 
 The essence of a corporation consists "in 
 a capacity (1) to have perpetual succession 
 in a special and in an artificial form; (2) to 
 take and grant property, contract obliga- 
 tions, sue and be sued by its corporate name 
 
 as an individual; (3) to receive and enjoy in 
 common grants of privileges and immuni- 
 ties; Thomas v. Dakin, 22 Wend. (N. Y.) 71. 
 
 By both the civil and the common law, 
 the sovereign authority only can create a 
 corporation, — a corporation by prescription, 
 or so old that the license or charter which 
 created it is lost, being presumed, from the 
 long-continued exercise of corporate pow- 
 ers, to have been entitled to them by sover- 
 eign grant. In England, corporations are 
 created by royal charter or parliamentary 
 act ; in the United States, by legislative act 
 of any state, or of the congress of the Unit- 
 ed States, — congress having power to create 
 a corporation, as, for instance, a national 
 bank when such a body is an appropriate 
 instrument for the exercise of its constitu- 
 tional powers; McCulloch v. Maryland, 4 
 Wheat. (U. S.) 424, 4 L. Ed. 579. In many 
 or most of the states general acts have been 
 passed for the creation of certain classes 
 of some corporations. And some state con- 
 stitutions have taken from the legislature 
 the power to create them by special act. 
 
 All corporations, of whatever kind, are 
 moulded and controlled, both as to what 
 they may do and the manner in which they 
 may do it, by their charters or acts of in- 
 corporation, which to them are the laws of 
 their being, which they can neither dispense 
 with nor alter. Subject, however, to such 
 limitations as these, or such as general stat- 
 ute or constitutional law, may impose, every 
 corporation aggregate has, by virtue of in- 
 corporation and as incidental thereto, first, 
 the power of perpetual succession, including 
 the admission, and, except in the case of 
 mere stock corporations, the removal for 
 cause, of members ; second, the power to 
 sue and be sued, to grant and to receive 
 grants, and to do all acts which it may do 
 at all, in its corporate name; third, to pur- 
 chase, receive, and to hold lands and other 
 property, and to transmit them in succes- 
 sion; fourth, to have a common seal, and to 
 break, alter, and renew it at pleasure; and, 
 fifth, to make by-laws for its government, so 
 that they be consistent with its charter and 
 with law. It may, within the limits of its 
 charter or act of incorporation express or 
 implied, lawfully do all acts and enter into 
 all contracts that a natural person may do 
 or enter into, so that the same be appro- 
 priate as means to the end for which the 
 corporation was created. 
 
 It is not obliged to use all its powers un- 
 less its charter especially so requires ; Illi- 
 nois Trust & Savings Bank v. Doud, 105 Fed. 
 123, 44 C. C. A. 389, 52 L. R. A. 481. 
 
 A corporation is a creature of the state. 
 It is presumed to be incorporated for the 
 benefit of the public. It receives certain 
 special privileges and franchises and holds 
 them subject to the laws of the state and the 
 limitations of its charter. Its powers are 
 limited by law. It can make no contract uot
 
 CORPORATION 
 
 G85 
 
 CORPORATION 
 
 authorized by its charter. Its rights to act 
 as a corporation are only preserved to it so 
 long as it / obeys the laws of its creation. 
 There is a reserved right in the legislature to 
 investigate its contracts and ascertain if it 
 has exceeded its powers; Wilson v. U. S., 
 221 U. S. 382, 31 Sup. Ct 538, 55 L. KM. 771, 
 Ann. Cas. 1912A, 558. A corporation of one 
 state may be made a corporation of anotber 
 state in regard to property and acts within 
 Its territorial jurisdiction; Ohio & M. R. Co. 
 v. Wheeler, 1 Black (U. S.) 280, 17 L. lid. 
 130; Baltimore & O. R. Co. v. Harris, 12 
 Wall. (U. s.) <;,-). 20 L. Ed. 354; Chicago & 
 N. W. R. Co. v. YVhitton, 13 Wall. (U. S.) 
 270, 20 L. Ed. 571 ; St. Louis R. Co. v. Vance, 
 9G U. S. 450, 21 L. Ed. 7.72; dark v. Barnard, 
 108 U. S. 436, 2 Sup. Ct. 878, 27 L. Ed. 780; 
 Martin v. R. Co., 151 U. S. G73, 14 Sup. Ct 
 533, 38 L. Ed. 311 ; Louisville, N. A. & C. R. 
 Co. v. Trust Co., 171 I. S. 552, 19 Sup. Ct. 
 817, 43 L. Ed. 1081; Maekay v. R. Co., 82 
 Com. 73, 72 Atl. 583, 24 L. R. A. (N. S.) 70S; 
 but the mere grant of privileges and powers 
 to it as an existing corporation, without 
 more, does not confer tbe power usually ex- 
 ercised over corporations by the state or by 
 the legislature. The language used must im- 
 ply creation or adoption ; Pennsylvania R. 
 Co. v. R. Co., 118 U. S. 290, 6 Sup. Ct. 1094, 
 30 L. Ed. 83; Goodlett v. R. R., 122 U. S. 
 391, 7 Sup. Ct. 1254, 30 L. Ed. 1230; St. Louis 
 & S. F. R. Co. v. James, 101 U. S. 545, 1G 
 Sup. Ct 021, 40 L. Ed. S02. Where a corpo- 
 ration is incorporated simultaneously in sev- 
 eral states, it exists in each state ; Pinney v. 
 Nelson, 183 U. S. 149, 22 Sup. Ct. 52, 46 L. 
 Ed. 125. Where it is sued in one of such 
 states it cannot escape the jurisdiction there- 
 of and remove the cause to the federal court ; 
 Patch v. R. Co., 207 U. S. 277, 28 Sup. Ct. 80, 
 52 L. Ed. 204, 12 Ann. Cas. 518, distinguish- 
 ing Southern R. Co. v. Allison, 190 U. S. 326, 
 23 Sup. Ct. 713, 47 L. Ed. 1078. Where sever- 
 al corporations, each of a different state, are 
 so consolidated by the co-operating legisla- 
 tion of those states as to assume a new cor- 
 porate form and name, the consolidated cor- 
 poration is, in each of those states, a cor- 
 poration of such state ; Patch v. R. Co., 207 
 U. S. 277, 28 Sup. Ct. 80, 52 L. Ed. 204, 12 
 Ann. Cas. 518. See Merger. 
 
 Where property is involved, a corporation 
 is regarded as a person separate and distinct 
 from its stockholders, or any or all of them; 
 Home Fire Ins. Co. v. Barber, 67 Neb. 644, 
 93 N. W. 1024, 60 L. R. A. 927, 108 Am. St. 
 Rep. 716, per Pound, Com'r. The entirely 
 separate identity of the rights and remedies 
 of a corporation itself and the individual 
 shareholders is settled ; Big Creek Gap Coal 
 & Iron Co. v. Trust Co., 127 Fed. G20, 62 C. 
 C. A. 351; Bronson v. R. Co., 2 Wall. (U. 
 S.) 283, If L. Ed. 725; Davenport v. Dows, 
 18 Wall. 620, 21 L. Ed. 93S; Church v. R. Co., 
 78 Fed. 520 ; Forbes v. R. Co., Fed. Cas. No. 
 4,926. 
 
 But it is held that while a corporation is 
 ordinarily considered a legal entity, yet it 
 may, in the interest of justice, be considered 
 as an association of persons ; and where one 
 corporation is organized and owned by the 
 stockholders and officers of another, they 
 may be treated as identical ; U. S. v. Transit 
 Co., 142 Fed. 247. 
 
 Its residence is fixed by artificial condi- 
 tions, such as the location of its principal of- 
 fice, or (if a foreign corporation) the per- 
 sonal residence of its duly appointed attor- 
 ney in fact on whom service is to be made 
 in a state where it is registered as a f< 
 corporation; Lemon v. Glass Co., 199 
 927. 
 
 A corporation having stockholders is or- 
 ganized when the first meeting has been call- 
 ed, the act of incorporation accepted, officers 
 elected, and by-laws providing for future 
 meetings adopted, within the meaning of a 
 statute providing that incorporators and sub- 
 scribers shall hold the franchise until the 
 corporation is organized; Roosevelt v. Hamb- 
 lin, 199 Mass. 127, 85 N. E. 98, 18 L, R. A. 
 (N. S.) 748; or when the officers provided 
 for in the law of its being have been appoint- 
 ed and taken upon themselves the burden of 
 their offices; Com. v. Mann Co., 150 Pa. 04, 
 24 Atl. 001; Walton v. Oliver, 49 Kan. 107, 
 30 Pac. 172, 33 Am. St Rep. 355. It has been 
 held not to be organized where it had not 
 recorded a certificate of complete organiza- 
 tion; Loverin v. McLaughlin, 161 111. 417, 44 
 N. E. 99; North Chicago Electric Ry. Co. v. 
 Peuser, 190 111. G7, 60 N. E. 78; or filed its 
 articles of incorporation; Capps v. Prospect- 
 ing Co., 40 Neb. 470, 58 N. W. 956, 24 L. R. 
 A. 259, 42 Am. St. Rep. 077; or its certificate 
 that the requisite capital stock had been de- 
 posited ; Gent v. Ins. Co., 107 111. 652. 
 
 In civil cases a corporation is liable for the 
 malice of its officers and servants ; [1900] 1 
 Q. B. 22; [1904] A. C. 423. 
 
 Ordinarily in England it cannot be prose- 
 cuted for a crime ; but it may be for a mis- 
 demeanor, which is merely a civil wrong; 
 (e. g.) for breaches of the Food and Drug 
 Act; Odger, C. L. 1405. In the United States 
 it may be indicted for crime, but not for 
 every species; 5 Tbomps. Cap. § 0418. It may 
 be for a criminal libel; Brennan v. Tracy. 2 
 Mo. App. 540 (dictum) ; for keeping a dis- 
 orderly house ; State v. Agricultural Soc, 54 
 N. J. L. 200, 23 Atl. 080; for obstructed pub- 
 lic navigation by not constructing a draw- 
 bridge; Com. v. Proprietors of New Bedford 
 Bridge, 2 Gray (Mass.) ::::•.>: for a public 
 nuisance; State v. City of Portland, 74 Mc 
 268, •!•"• Am. Rep. 586; Delaware Division 
 Canal Co. v. Com., 60 Pa. B67, 100 Am. Dec. 
 570; for failure to perform public duties (as 
 of a municipality falling to keep highways in 
 repair) : state v. Town of MmTrcesboro, 11 
 Humph. (Tenn.) 217: for usury; State v. 
 Bank, 2 S. D. 538, 51 N. W. 337; for con- 
 spiracy to aid a lynching mob; Rogers v.
 
 CORPORATION 
 
 G8G 
 
 CORPORATOR 
 
 R. Co., 194 Fed. 65, 114 C. C. A. 85; and of 
 course for offences under modern industrial 
 statutes. 
 
 It is held that it can be indicted only when 
 the legislation has so provided; State v. 
 Hotel Co., 42 Ind. App. 2S2, 85 N. E. 724. 
 
 The definition at the beginning of this ti- 
 tle of a corporation sole is the one usually 
 given in the books. It is said, in England, to 
 include the Crown, all bishops, rectors, vicars 
 and the like ; 3 Steph. Com. 15 ed. 2. So 
 of the supervisor of a town ; Jansen v. Os- 
 trander, 1 Cow. (N. Y.) 670; the governor 
 of a state; Governor v. Allen, 8 Humphr. 
 (Tenn.) 176. It has been defined as a "term 
 established by usage indicating a person some 
 of whose rights and liabilities are permitted 
 by" law to pass to his successors in a par- 
 ticular office, rather than to his heirs, execu- 
 tors or administrators. Such a corporation 
 was unknown in the civil law." 21 Harv. L. 
 Rev. 306. But the conception has been dis- 
 approved by modern authors. Thus, Sir F. 
 Pollock (note to Maine, Anc. Law 226) says: 
 "Our English category of corporations sole 
 is not only, as Maine calls it, a fiction, but 
 modern, anomalous, and of no practical use. 
 When a parson or other solely corporate of- 
 fice-holder dies, there is no one to act for 
 the corporation until a successor is appoint- 
 ed, and when appointed, that successor can 
 do nothing which he could not do without be- 
 ing called a corporation sole. ... As for 
 the King, or 'the Crown,' being a corporation 
 sole, the language of our books appears to 
 be nothing but a clumsy and, after all, in- 
 effective device to avoid openly personifying 
 the state. . . . The whole thing seems to 
 have arisen from the technical difficulty of 
 making grants to a parson and his successors 
 after the practice of making them to God 
 and the patron saint had been discontinued. 
 . . . All this we may now think makes for 
 historical curiosity rather than philosophical 
 edification." 
 
 "A bishop is not a corporation sole" ; per 
 Strong, J., in Kain v. Gibboney, 101 U. S. 
 362, 25 L. Ed. 813, referring to a Roman 
 Catholic bishop. 
 
 See Maitland, Corporation Sole (16 L. Q. 
 R. 335); The Crown as a Corporation (17 
 id. 131). Judge Thompson has said (Corp. 
 vol. 1, § 8) that the conception of a corpora- 
 tion sole is "passing out of American law." 
 See Charter ; Stock ; Stockholder; Di- 
 rector; Meetings; Officer; Trust Fund 
 Theory; Dissolution; Merger; Eminent 
 Domain; De Facto; Ecclesiastical Corpo- 
 rations. 
 
 CORPORATOR. A member of a corpora- 
 tion. 
 
 The corporators are not the corporation, 
 for either may sue the other ; Culbertson v. 
 Wabash Nav. Co., 4 McLean, 547, Fed. Cas. 
 No. 3,464; Rogers v. Universalist Society, 19 
 Vt 187; Peirce v. Partridge, 3 Mete. (Mass.) 
 
 44; Omaha Hotel Co. v. Wade, 97 U. S. 13, 
 24 L. Ed. 917. 
 
 CORPOREAL HEREDITAMENTS. Sub- 
 stantial permanent objects which may be in- 
 herited. The term land will include all such. 
 2 Bla. Com. 17. 
 
 CORPOREAL PROPERTY. In Civil Law. 
 
 That which consists of such subjects as are 
 pal i>able. 
 
 In the common law, the term to signify the same 
 thing is property in possession. It differs from 
 incorporeal property, which consists of choses in 
 action and easements, as a right of way, and the 
 like. 
 
 CORPSE. The dead body of a human be- 
 ing. 1 Russ. & R. 366, n.; 2 Term 733; 1 
 Leach 497; Com. v. Loring, 8 Pick. (Mass.) 
 370 ; . Dig. 47. 12. 3. 7 ; 11. 7. 38 ; Code, 3. 44. 
 1. Stealing a corpse is an indictable offence, 
 but not larceny at common law; Co. 3d Inst. 
 203; 1 Russ. Cr. 629. See Dead Body. 
 
 CORPUS (Lat). A body. The substance. 
 Used of a human body, a corporation, a col- 
 lection of laws, etc. The capital of a fund 
 or estate as distinguished from the income. 
 
 CORPUS COMITATUS. The body of the 
 county ; the inhabitants or citizens of a whole 
 county, as distinguished from a part of the 
 county or a part of its citizens. U. S. v. 
 Grush, 5 Mas. 290, Fed. Cas. No. 15,268. 
 
 CORPUS CUM CAUSA. See Habeas Cor- 
 pus cum Causa. 
 
 CORPUS DELICTI. The body of the of- 
 fence ; the essence of the crime. 
 
 It is a general rule not to convict unless 
 the corpus delicti can be established, that is, 
 until the fact that the crime has been act- 
 ually perpetrated has been first proved. 
 Hence, on a charge of homicide, the accused 
 should not be convicted unless the death 
 be first distinctly proved, either by direct 
 evidence of the fact or by inspection of the 
 body; Best, Pres. §201; 1 Stark. Ev. 575. 
 See 6 C & P. 176; 2 Hale, P. C. 290; Whart. 
 Cr. Ev. § 324. Instances have occurred of 
 a person being convicted of having killed 
 another, who, after the supposed criminal 
 has been put to death for the supposed of- 
 fence, has made his appearance alive. The 
 wisdom of the rule is apparent; but it has 
 been questioned whether, in extreme cases, 
 it may not be competent to prove the basis of 
 the corpus delicti by presumptive evidence; 
 3 Benth. Jud. Ev. 234; Wills, Cir. Ev. 105; 
 Best, Pres. § 204 ; 3 Greenl. Ev. 30. In cases 
 of felonious homicide, the corpus delicti con- 
 sists of two fundamental and necessary 
 facts: first, the death; and secondly, the 
 existence of criminal agency as its cause ; 
 Pitts v. State, 43 Miss. 472. A like analysis 
 would apply in the case of any other crime. 
 When the body of a murdered man was 
 mutilated and burned beyond recognition, 
 testimony that a piece of charred cloth found
 
 CORPUS DELICTI 
 
 687 
 
 CORPUS JURIS CI VI LIS 
 
 In the ashes with the body were like the 
 trousers that a certain man wore, and that 
 a slate pencil found there was identical with 
 one he carried about him, was competent evi- 
 dence to establish the identity of the body; 
 State v. Martin, 47 S. 0. 67, 25 8. B. 113. 
 
 The presumption arising from the pos- 
 session of the fruits of crime recently after 
 its commission, which in all cases is one of 
 fact rather than of law, is occasionally SO 
 strong as to render unnecessary any direct 
 proof of the corpus delicti. Thus, to borrow 
 an illustration from Mr. Justice Maule, if a 
 man were to go into the London docks quite 
 sober, and shortly afterwards were to be 
 found very drunk, staggering out of one of 
 the cellars, in which above a million gallons 
 of wine are stowed, "I think," says the learn- 
 ed judge, "that this .would be reasonable evi- 
 dence that the man had stolen some of the 
 wine in the cellar, thouirh no proof were given 
 that any particular vat had been broached 
 and that any wine had actually been missed." 
 Dears. 284; 1 Tayl. Ev. § 122. In this case 
 it was proved that a prisoner indicted for 
 larceny was seen coming out of the lower 
 room of a warehouse in the London docks, 
 in the floor above which a large quantity 
 of pepper was deposited, and where he had 
 no business to be. He was stopped by a 
 constable, who suspected him from the bulky 
 state of his pockets, and said, "I think there 
 is something wrong about you ;" upon which 
 the prisoner said, "I hope you will not be 
 hard upon me;" and then threw a quantity 
 of pepper out of his pocket on the ground. 
 The witness stated that he could not say 
 whether any pepper had been stolen, nor that 
 any pepper had been missed; but that which 
 was found upon the prisoner was of like de- 
 scription with the pepper in the warehouse. 
 It was held by all the judges that the prison- 
 er, upon these facts, was properly convicted 
 of larceny. 
 
 The corpus delicti in arson consists in 
 proof of the burning and of criminal agency 
 in causing it ; Spears v. State, 92 Miss. C13, 
 46 South. 166, 1G L. R. A. (N. S.) 285. 
 
 A confession alone ought not to be con- 
 sidered sufficient proof of the corpus delicti ; 
 Springfellow v. State, 26 Miss. 157, 59 Am. 
 Dec. 247; People v. Hennessey, l."> Wend. (N. 
 Y.) 147; Bines v. State, 118 Ga. 320, 45 S. 
 E. 37G, GS L. R. A. 33. It may be proved by 
 circumstantial evidence; Dimmick v. U. S., 
 135 Fed. 2r»7, 70 C. C. A. Ml ; State v. Cillis. 
 73 S. C. 318, 53 S. E. 4S7, 5 L. R. A. (N. S.) 
 571, 114 Am. St. Rep. 95, G Ann. Cas. 993. 
 
 CORPUS JURIS CANONICI (Lat. the 
 body of the canon law). The name given to 
 the collections of the decrees and canons of 
 the Roman church. See Canon Law. 
 
 CORPUS JURIS CIVILIS. The body of 
 the civil law. The collection comprising the 
 Institutes, the Pandects or Digest, the Code, 
 and the Novels of Justiuiau. See those sev- 
 
 eral titles, and also Civil Law for fuller in- 
 formation. The name is said to have been 
 first applied to this collection early in the 
 seventeenth century. See Basilica; < 
 Law. 
 
 CORRECTION. Chastisement, bj • ne hav- 
 Ing authority, of a person ■ emit- 
 
 ted some offence, for the purpose of In. 
 him into legal subjection. 
 
 It is chiefly exercised in a parental man- 
 ner by parents, or Chose who are placed in 
 loco parentis. A may therefore jus- 
 
 tify the correction of the child either cor- 
 porally or by confinement; and a scnool- 
 master may Justify similar correction; but 
 the correction in both cases must he moder- 
 1 in a proper manner; Com. Dig. Plead- 
 er, (3 -M.i 1'.); Hawk. c. 60, s. 2."., c. G2, s. 2, 
 c. L'!>, s. 5; Johnson v. State, 2 Humph. 
 (Tenn.) 2S3, 3G Am. Dec. 322; State v. Pen- 
 dergrass, 19 X. 0. 865, :;i Am. Dee. 416; 
 v. Neely, 143 Mo. App. 632, 128 s. \v. 233. 
 See Assault; WHIPPING. 
 
 The master of an apprentice, for disobedi- 
 ence, may correct him moderately; 1 B. & 
 O. 469; Cro. Car. 179; Mitchell v. Arm 
 10 Mart. O. S. (La.) 38; but he eanno; 
 gate the authority to another. A master has 
 no right to correct his servants who are not 
 apprentices; Matthews v. Terry, 10 Conn. 
 455; 2 Greenl. Ev. § 97; see Assault for 
 cases of undue correction. A master may he 
 found guilty of murder for whipping a serv- 
 ant so that he dies, although he has a right 
 to inflict the punishment, and the instrument 
 is proper, if the punishment is so prolonged 
 and barbarous as to indicate malice; Slate 
 v. Shaw, 64 S. C. 566, 43 S. E. 14, GO L. R. A. 
 801, 92 Am. St. Rep. 817. 
 
 Soldiers were formerly liable to moderate 
 correction from their superiors. For the 
 sake of maintaining discipline in the navy, 
 the captain of a vessel, belonging either to 
 the United States or to private individuals. 
 might formerly inflict moderate correction 
 on a sailor for disobedience or disorderly 
 conduct; Ab. Sh. 160; Brown v. Howard, 14 
 Johns. (X. Y.) 119; Sampson v. Smith. 15 
 Mass. 3(15; Flemmlng v. Ball 1 Lay (S. C.) 
 3; Aertsm v. Aurora, Bee 161, Fed. ('as. No. 
 95; Thorne v. White, 1 Pet. Adm. 168, Fed. 
 Cas. No. 13,989; Moll. 209; Turner's Case, 1 
 Ware S3. Fed. Cas. No. 14,218. Such has 
 been the general rule. But Bogging and oth- 
 er degrading punishments are now forbidden 
 in the army, navy, merchant service, and mil- 
 itary prisons; R. S. §§ 1342, loi 1 !. 4611, 1864 
 
 The husband, by the old law, might give 
 his wife moderate correction; 1 Hawk. P. 
 C. 2. But in later times this power of correc- 
 tion began to be doubted; and a wife may 
 now have security of the peace against her 
 husband, or a husband against his wife; 1 
 Bla. Com. 444; Stra. 478, 875, 1207; 2 Lev. 
 128. See Married Woic 
 
 Any excess of correction by the parent, 
 master, officer, or captain rendered the par-
 
 CORRECTION" 
 
 688 
 
 CORRUPTION OF BLOOD 
 
 ty guilty of an assault and battery and liable 
 to all its consequences; Com. v. Randall, 4 
 Gray (Mass.) 36. See Assault. In some 
 prisons, tbe keepers are permitted to correct 
 the prisoners. 
 
 The King's Council, in the minority of 
 Henry VI. authorized a subject to chastise 
 the king "when he trespasseth or doth amys." 
 3 Holdsw. Hist. E. L. 356. 
 
 CORREGIDOR. In Spanish Law. A mag- 
 istrate who took cognizance of various mis- 
 demeanors, and of civil matters. 2 White, 
 New Rec, 53. 
 
 CORREI. In Civil Law. Two or more 
 bound or secured by the same obligation. 
 
 Correi credendi. Creditors secured by the 
 same obligation. 
 
 Correi debendi. Two or more persons 
 bound as principal debtors to pay or per- 
 form. Ersk. Inst. 3. 3. 74; Calvinus, Lex.; 
 Bell, Diet 
 
 CORRUPT AND ILLEGAL PRACTICES. 
 A British act of 1883 and supplements forbid 
 certain acts in connection with Parliamenta- 
 ry elections, chiefly bribery, treating, undue 
 influence and personation. Such acts are 
 made criminal offences and may be ground 
 for the loss of the seat if brought home to 
 the candidate personally or through his 
 agent. If by bribery, etc., it appears that 
 the electorate did not really express its will, 
 the election may be declared void. Certain 
 practices are declared illegal, such as pay- 
 ment for the conveyance of electors to or 
 from the polls, paying an elector for the 
 use of his property, paying agents other than 
 those specified in the act, and making a false 
 statement as to the personal character or 
 conduct of a candidate. In certain cases the 
 penalty to the candidate may be disqualifica- 
 tion forever from serving for the constituen- 
 cy in question, and, for seven years, from 
 serving for any other constituency. 2 Steph. 
 Com. (15th ed.) 463, 476. 
 
 This subject has more recently attracted 
 much attention in the United States, and 
 acts are being passed on the subject, but it 
 cannot be said that the ground is fully c6v- 
 ered. Among such acts are those requiring 
 candidates to file, immediately after election, 
 a statement of expenses incurred. 
 
 In some states, the state treasury assumes 
 certain nomination expenses. See State As- 
 sumption of Expenses, 23 Yale L. Journ. 158, 
 by Simeon E. Baldwin. 
 
 CORRUPTION. An act done with an in- 
 tent to give some advantage inconsistent with 
 official duty and the rights of others. 
 
 It includes bribery, but is more comprehensive ; 
 because an act may be corruptly done though the 
 advantage to be derived from it be not offered by 
 another. Merlin, Rep. 
 
 Something against law: as, a contract by 
 which the borrower agreed to pay the lender 
 usurious interest. It is said, in such case, 
 that it was corruptly agreed, etc. 
 
 CORRUPTION OF BLOOD. The incapac- 
 ity to inherit, or pass an inheritance, in 
 consequence of an attainder to which the 
 party has been subject. Abolished by stats. 
 3 & 4 Will. IV. c. 106, and 33 & 34 Vict c. 
 23 ; 1 Steph. Com. 446. 
 
 When this consequence flows from an at- 
 tainder, the party is stripped of all honors 
 and dignities he possessed, and becomes ig- 
 noble. 
 
 The constitution of the United States, art. 
 3, s. 3, n. 2, declarer, that "no attainder of 
 treason shall work corruption of blood or 
 forfeiture except during the life of the per- 
 son attainted." 
 
 The act of Congress of July 17, 1862, for 
 the seizure and condemnation of enemies' es- 
 tates, with the resolution of the same date, 
 does not conflict with this section, the for- 
 feiture being only during the life of the of- 
 fender; Bigelow v. Forrest, 9 Wall. (U. S.) 
 339, 19 L. Ed. 696 ; Miller v. U. S., 11 Wall. 
 (U. S.) 268, 20 L. Ed. 135 ; Day v. Micou, 18 
 Wall. (U. S.) 156, 21 L. Ed. 860; Ex parte 
 Lange, 18 Wall. (U. S.) 163, 21 L. Ed. 872; 
 Wallach v. Van Kiswick, 92 U. S. 202, 23 L. 
 Ed. 473. 
 
 So far as it prevented descent being traced 
 through a felon, the doctrine of corruption of 
 blood was abolished in England in 1834 ; the 
 whole law of escheat for felony, together 
 with the king's year, day and waste, was 
 abolished in 1S70. 
 
 CORSE-PRESENT. In Old English Law. 
 A gift of the second best beast belonging to 
 a man at his death taken along with the 
 corpse and presented to the priest. Stat. 21 
 Hen. VIII. cap. 6 ; Cowell ; 2 Bla. Com. 425. 
 
 CORSNED. In Old English Law. A piece 
 of barley bread, which, after the pronuncia- 
 tion of certain imprecations, a person accus- 
 ed of crime was compelled to swallow. 
 
 A piece of cheese or bread of about an ounce 
 weight was consecrated with an exorcism desiring 
 of the Almighty that it might cause convulsions 
 and paleness, and find no passage, if the man was 
 really guilty, but might turn to health and nourish- 
 ment if he was innocent. Spelman, Gloss. 439. It 
 was then given to the suspected person, who at the 
 same time received the sacrament. If he swallowed 
 it easily, he was esteemed innocent ; if it choked 
 him, he was esteemed guilty. See 4 Bla. Com. 345. 
 
 CORTES. The name of the legislative as- 
 semblies of Spain and Portugal. 
 
 CORVEE. In French Law. Gratuitous la- 
 bor exacted from the villages or communities, 
 especially for repairing roads, constructing 
 bridges, fortifications, etc. 
 
 Corvee seigneuriale are services due the 
 lord of the manor. Guyot, R6p. Univ.; 3 
 Low. C. 1. 
 
 COSBERING. In Feudal Law. A prerog- 
 ative or seignorial right of a lord, as to lie 
 and feast himself and his followers at his 
 tenants' houses. Cowell. 
 
 COSENING. In Old English Law. An of- 
 fence whereby anything is done deceitfully,
 
 COSEXIXQ 
 
 689 
 
 COSTS 
 
 whether in or out of contracts, which cannot 
 be fitly termed by any especial name. Called 
 in the civil law Stcllionutus. West Synib. 
 pt. 2, Indictment, § 68; Blount; 4 Bla. Com. 
 158. 
 
 COSINAGE (spelled, also, Cousinage, Cos- 
 enage). A writ to recover possession of an 
 estate in lands when a stranger has entered 
 and abated after the death of the grand- 
 father's grandfather or of certain collateral 
 relations. 3 Bla. Com. »186. 
 
 Relationship; allinity. Stat 4 Hen. III. 
 cap. 8; 3 Bla. Com. 186; Co. Litt. 160 a. 
 
 They do not extend to the government ; 
 and therefore when the United States, or 
 one of the several a party they 
 
 neither pay nor receive costs, unless it be 
 so expro-sly provided by statute; Irwin v. 
 Commissioners of Northumberland County, 1 
 S. & B. (Pa.) 505; D. S. v. Barker, 2 v. 
 (U. S.) 395, 4 L. Ed. 271; U. S. v. Boyd, 5 
 How. (U. S.) 29, 12 L. Ed. 36; Cob 
 Powell, 23 Ala. 579; State v. Sonne, -11 N. 
 3; State v. Harrington, 2 Tyler (Vt) 
 41; and in actions of a public natuiv. 
 ducted solely for the public benefit, 
 
 are rarely given against public office 
 COST. The cost of an article purchased sa(]y v Trustees of Schools, 94 111. 589; Clare 
 for exportation is the price paid, with all In- County v. Auditor General, 41 Mich. 182, 1 N. 
 
 cidental charges paid at the place of expor 
 tation. Goodwin v. U. S., 2 Wash. C. C. 493, 
 Fed. Cas. No. 5,554. Cost price is that ac- 
 tually paid for goods. Buck v. Burk, 18 N. 
 Y. 337. See Actual Cost. 
 
 W. 926; Avery v. Slack, 19 Wend. (N. V.i 
 50. This exemption is founded on the sov- 
 ereign character of the state, which ; 
 ject to no process; 3 Bla. Com. 400; MeKee- 
 han v. Com., 3 Pa. 153. But in Missouri v. 
 
 COST-BOOK. In English Law. A book in Illinois, 202 U. S. 598, 26 Sup. Ct. 713, 50 
 
 which a number of adventurers who have ob- l. Ed. 1160, it was said: "So far as th< 
 
 tained permission to work a lode and have nity of the state is concerned, that is its own 
 
 agreed to share the enterprise in certain affair. The United States has not been above 
 
 proportions, enter the agreement and from taking costs." U. S. v. Sanborn, 135 0. B. 
 
 time to time the receipts and expenditures of 271, 10 Sup. Ct. 812, 34 L. Ed. 112. Rule 24 
 
 the mine, the names of the shareholders, I f the Supreme Court of the United States 
 
 their respective accounts with the mine, and 
 transfers of shares. These associations are 
 called "Cost-book mining companies," and 
 are governed by the general law of partner- 
 ship. Liudl. Bartn. *147. 
 
 COSTS. The expenses incurred by the 
 parties in the prosecution or defence of a 
 suit. 
 
 They are distinguished from fees in being an al- 
 lowance to a party, for expenses incurred in con- 
 ducting his suit; -whereas fees are a compensation 
 to an officer for services rendered in the progress of 
 the cause. Musser v. Good, 11 S. & R. (Pa.) 248. 
 
 No costs were recoverable by either plaintiff or de- 
 fendant at common law. They were first given to 
 plaintiff by the statute of Gloucester, 6 Edw. I. c. 1, 
 which has been substantially adopted in all the 
 United States. 
 
 The ultimate power to impose costs must 
 be found in a statute. This may be granted 
 by the legislature in general terms to the 
 courts who may then establish a fee bill. 
 This grant has been made by congress ; Jor- 
 dan v. Woollen Co., 3 Cliff. 239; Fed. Cas. 
 No. 7,516. This was before the Revised stat- 
 utes but the fee bill of 1853 which was then 
 under consideration by that court does not 
 differ in any important respect from the ap- 
 propriate sections of the Revised Statutes; 
 Tesla Electric Co. v. Scott, 101 Fed. 524. The 
 cases are collected in Kelly v. Ry. Co., S3 
 Fed. 183. and the various statutes are cited 
 in Hathaway v. Roach, Fed. Cas. No. 6,213; 
 Costs in Civil Cases, Fed. Cas. No. 18.2S4; 
 The Baltimore, 8 Wall. (U. S.) 388, 19 L. Ed. 
 463. 
 
 Statutes which give costs are not to be 
 extended beyond the letter, but are to be 
 construed strictly; 2 Stra. 1006, 1089; 3 
 Burr. 12S7; Com. v. Tilghman, 4 S. ( & R. (Pa.) 
 129 ; Farry v. Thomson, 1 Rich. (S. C.) 4. 
 Bouv.— 44 
 
 provides that no costs shall be allowed to or 
 against the United Slates in equity. The 
 king neither receives nor pays costs; (1785) 
 T. R. 86. 
 
 The right of the state to costs on convic- 
 tion in criminal cases is generally declared 
 by statute. 
 
 In many cases, the right to recover costs 
 is made to depend, by statute, upon the 
 amount of the verdict or judgment. Where 
 there is such a provision, and the verdict is 
 for less than the amount required by statute 
 to entitle the party to costs, the right to costs. 
 in general, will depend upon the mode in 
 which the verdict has been reduced below 
 the sum specified in the act. In such cases, 
 the general rule is that if the amount be 
 reduced by evidence of direct payment, the 
 party shall lose his costs; but if by set-off 
 or other collateral defence he will be enti- 
 tled to recover them ; 8 East 28, 347 ; - 
 Price 19; 4 Bingh. 169; Cooper v. Coats, 1 
 Dall. (U. S.) 30S, 1 L. Ed. 150; Bunner v. 
 Neil, 1 Dall. (U. S.) 457, 1 L. Ed. 222 : Stew- 
 art v. Mitchell's Adm'rs, 13 S. & R. (Pa.) 287. 
 
 When a case is dismissed for want of ju- 
 risdiction over the person, no costs are al- 
 lowed to the defendant unless expressly giv- 
 en by statute. The difficulty in giving costs, 
 in such case, is the want of power. If the 
 case be not legally before the court, it has no 
 more jurisdiction to award costs than it lias 
 to grant relief; Burnham v. Bangeley, 2 W. 
 & M. 417, Fed. Cas. No. 2.177: Bank of Cum- 
 berland v. Willis, 3 Sumn. 473, Fed. Cas. No. 
 885; Clark v. Rockwell, 15 Mass. 221; Banks 
 v. Fowler, 3 Litt. (Ky.) 332; Barnes v. Oar- 
 lisle, 3 N. H. 130; Paine v. Commissioners, 
 Wright (Ohio) 417.
 
 COSTS 
 
 690 
 
 COSTS DE INCREMENTO 
 
 In equity, the giving of costs is entirely 
 discretionary, as well with respect to the 
 period at which the court decides upou them 
 as with respect to the parties to whom they 
 are given. 
 
 In the exercise of their discretion, courts 
 of equity are generally governed by certain 
 fixed principles which they have adopted on 
 the subject of costs. It was the rule of the 
 civil law that vicius victori in expensis con- 
 dcmnatus est; and this is the general rule 
 adopted in courts of equity as well as in 
 courts of law, at least to the extent of throw- 
 ing it upon the failing party to show the 
 existence of circumstances to displace the 
 prima facie claim to costs given by success 
 to the party who prevails; 3 Dan. Ch. Pr. 
 1515. 
 
 In patent cases in equity costs will not 
 be allowed a plaintiff where some of the 
 claims are withdrawn at the argument and 
 some adjudged invalid, though others are 
 sustained ; Thomson-Houston Electric Co. v. 
 It. Co., 71 Fed. 886. 
 
 An executor or administrator suing at law 
 or in equity in his representative capacity is 
 not personally liable to the opposite party 
 for costs in case he is unsuccessful, if the 
 litigation were carried on in good faith for 
 the benefit of the estate; Gratz v. Bayard, 
 11 S. & R. (Pa.) 47 ; Calender's Adm'r v. Ins. 
 Co., 23 Pa. 471. But the rule is otherwise 
 where vexatious litigation is caused by the 
 executor or administrator, and where he has 
 been guilty of fraud or misconduct in rela- 
 tion to the .suit; 1 Wnis. Exec. 451 ; Show 
 v. Conway, 7 Pa. 136, 137. 
 
 Costs, when recovered, belong to the client ; 
 Celluloid Mfg. Co. v. Chandler, 27 Fed. 12. 
 
 In divorce, the wife's costs can be taxed 
 de die in diem; Graves v. Cole, 19 Pa. 171, 
 citing 2 Hagg. Cons. 204. 
 
 Ordinarily an appeal does not lie from a 
 decree for costs only in a chancery suit; but 
 there are exceptions to the rule, turning on 
 the question of the discretionary power of 
 the trial court respecting costs. A decree for 
 such costs as are discretionary is not appeal- 
 able, but one for costs not in the discretion 
 of the court is appealable if the amount is 
 sufficient to confer jurisdiction ; Nutter v. 
 Brown, 58 W. Va. 237, 52 S. E. 88, 1 L. R. A. 
 (N. S.) 1083, 6 Ann. Cas. 94. 
 
 See Double Costs; Treble Costs; Surety 
 Company; Actual. 
 
 COSTS OF THE DAY. Costs incurred in 
 preparing for trial on a particular day. Ad. 
 Eq. 343. 
 
 In English practice, costs are ordered to 
 be paid by a plaintiff, who neglects to go to 
 trial according to notice ; Mozley & W. Law 
 Diet. ; Lush, Pr. 496. 
 
 COSTS DE INCREMENTO (increased 
 costs, costs of increase). Costs adjudged by 
 the court in addition to those assessed by the 
 
 jury. Day v. Woodworth, 13 How. (U. S.) 
 372, 14 D. Ed. 181. 
 
 The* cost of the suit, etc., recovered originally 
 under the statute of Gloucester is said to be the 
 origin of costs de incremento; Bull. N. P. 328.a. 
 Where the statute requires costs to be doubled in 
 case of an unsuccessful appeal, costs de incremento 
 stand on the same footing as jury costs ; 2 Stra. 
 1048 ; Taxed Costs. Costs were enrolled in England 
 in the time of Blackstone as increase of damages; 
 3 Bla. Com. 399. 
 
 COTERELLUS. A cottager.' 
 
 Cotcrellus was distinguished from cotarius in this, 
 that the cotarius held by socage tenure, but the 
 coterellus held in mere villenage, and his person, 
 issue, and goods were held at the will of the lord. 
 Cowell. 
 
 COTLAND. Land held by a cottager, 
 whether in socage or villenage. Cowell; 
 Blount. 
 
 COTSETUS. A cottager or cottageholder 
 who held by servile tenure and was bound to 
 do the work of the lord. Cowell. 
 
 COTTAGE, COTTAGIUM. In Old English 
 Law. A small house without any land be- 
 longing to it, whereof mention is made in 
 stat. 4 Edw. I. 
 
 But, by stat. 31 Eliz. cap. 7, no man may build 
 such cottage for habitation unless he lay unto it 
 four acres of freehold land, except in market-towns, 
 cities, or within a mile of the sea, or for the habita- 
 tion of laborers in mines, shepherds, foresters, sail- 
 ors, etc. Twenty years' possession of cottage gives 
 good title as against the lord ; Bull. N. P. 103 a, 
 104. By a grant of a cottage the curtilage will 
 pass ; 4 Vin. Abr. 582. 
 
 COTTIER TENANCY. A species of tenan- 
 cy in Ireland, constituted by an agreement in 
 writing, and subject to the following terms: 
 That the tenement consist of a dwelling- 
 house with not more than half an acre of 
 land ; at a rental not exceeding 5i. a year ; 
 the tenancy to be for not more than a month 
 at a time ; the landlord to keep the house in 
 good repair. Landlord and Tenant Act (Ire- 
 land), 23 & 24 Vict. c. 154, s. 81. 
 
 C0UCHANT. Lying down. Animals are 
 said to have been levant and couchant when 
 they have been upon another person's land, 
 damage feasant, one night at least. 3 Bla. 
 Com. 9. 
 
 COULISSE. The stock brokers' curb mar- 
 ket in Paris. 
 
 COUNCIL (Lat. concilium, an assembly). 
 The legislative body in the government of 
 cities or boroughs. An advisory body select- 
 ed to aid the executive. See Opinion of the 
 Justices, 14 Mass. 470 ; Opinion of the Justic- 
 es, 3 Pick. (Mass.) 517 ; In re Adams, 4 Pick. 
 (Mass.) 25. 
 
 A governor's council is still retained in some of 
 the states ; 70 Me. 570. It is analogous in many 
 respects to the privy council (q. v.), of the king of 
 Great Britain and of the governors of the British 
 colonies, though of a much more limited range of 
 duties. 
 
 Common council is a term frequently ap- 
 plied to the more numerous branch of the 
 legislative bodies in cities.
 
 COUNCIL. 
 
 691 
 
 COUNSELLOR AT LAW 
 
 The British parliament is the common 
 council of the whole realm. 
 
 COUNCIL OF THE BAR. A body compos- 
 ed of members of tbe English bar which gov- 
 erns the bar. It hears complaints against 
 barristers and reports its findings with rec- 
 ommendations to the benchers of the Inn of 
 Court of which the barrister is n member, 
 who alone can act. Learning, Phila. Lawy. in 
 Loud. Courts 07. 
 
 COUNCIL OF LEGAL EDUCATION. See 
 
 Legal Education. 
 
 COUNSEL. The counsellors who are as- 
 sociated in the management of a particular 
 cause, or who act as legal advisers in ref- 
 erence to any matter requiring legal knowl- 
 edge and judgment. 
 
 The term is used both as a singular and plural 
 noun, to denote one or more. It Is usual to say of 
 one concerned in a case that he is "of com 
 
 Originally there was no distinction between 
 council and counsel; both were consilium. 
 Ilbert, Legisl. Meth. 5. 
 
 Knowledge. A grand jury is sworn to 
 keep secret "the commonwealth's counsel, 
 their fellows', and their own." 
 
 COUNSELLOR AT LAW. An officer in 
 
 the supreme court of the United States, and 
 in some other courts, who is retained by a 
 party in a cause to conduct the same on its 
 trial on his behalf. 
 
 He differs from an attorney at law. 
 
 In the supreme court of the United States, the 
 two degrees of attorney and counsel were at first 
 kept separate, and no person was permitted to 
 practise in both capacities, but the present practice 
 la otherwise; Weeks, Att. 54. It Is the duty of the 
 counsel to draft or review and correct the special 
 pleadings, to manage the cause on trial, and, dur- 
 ing the whole course of the suit, to apply estab- 
 lished principles of law to the exigencies of the 
 case; 1 Kent 307. In England the term "counsel" 
 is applied to a barrister. 
 
 Generally, in the courts of the various states the 
 same person performs the duties of counsellor and 
 attorney at law. 
 
 In giving their advice to their clients, 
 counsel have duties to perform to their cli- 
 ents, to the public and to themselves. In 
 such cases they have thrown upon them 
 something which they owe to their adminis- 
 tration of justice, as well as to the private 
 interests of their employers. The interests 
 propounded for them ought, in their own ap- 
 prehension, to be just, or at least fairly 
 disputable; and when such interests are 
 propounded, they ought not to be pursued 
 per fas et nefas; 1 Hagg. Adm. 222. An at- 
 torney and counsellor is not an ollicer of the 
 United States, he is an oflicer of the court. 
 His right to appear for suitors and to argue 
 causes is not a mere indulgence, revocable 
 at the pleasure of the court, or at the com- 
 mand of the legislature. It is a right of 
 which he can be deprived only by the judg- 
 ment of the court, for moral or professional 
 
 delinquency ; Ex parte Garland, 4 Wall. (U. 
 S.)333, 1SL. Ed. 366. 
 
 See Attobnev; It.ivii.lge; Confidential 
 Communications; Disbab; Barrister. 
 
 COUNT (Fr. comte; from the Latin comes). 
 An earl. 
 
 It gave way as a distinct title to the Saxon earl, 
 but was retained in countess, viscount, and as the 
 basis of county. Termes de la ley; 1 Bla. Com. 398. 
 See Comes. 
 
 In Pleading. (Fr. conte, a narrative). 
 The plaintiff's statement of his cause of ac- 
 tion. 
 
 This word Is In our old law-books used synony- 
 mously with declaration; but practice has intro- 
 duced the following distinction. When the plaintiff's 
 complaint embraces only a single cause of action, 
 and he makes only one statement of it, that state- 
 ment is called, indifferently, a declaration or count; 
 though the former is the more usual term, but 
 when tbe suit embraces two or more causes of action 
 (each of which, of course, requires a different 
 statement), or when the plaintiff makes two or more 
 at statements of one and tbe same cause of 
 action, each several statement is called a count, 
 and all of them, collectively, constitute the declara- 
 tion. In all cases, however, in which there are two 
 or more counts, whether there is actually but one 
 cause of action or several, each count purports, 
 upon the face of it, to disclose a distinct right of 
 action, unconnected with that stated in any of the 
 other counts. 
 
 One object proposed in inserting two or 
 more counts in one declaration when there 
 is in fact but one cause of action, is, in 
 some cases, to guard against the dang 
 an insufficient statement of the cause, where 
 a doubt exists as to the legal sufficiency of 
 one or another of two different inodes of 
 declaring; but the more usual end pn>; 
 in inserting more than one count in such 
 case is to accommodate the statement to the 
 cause, as far as may be, to the possible state 
 of the proof to be exhibited on trial, or to 
 guard, if possible, against the hazard of the 
 proofs varying materially from the state- 
 ment of the cause of action ; so that, if one 
 or more of several counts be not adapted to 
 the evidence, some other of them may be so; 
 Gould, PL c. 4, ss. 2, 3, 4; Steph. PL 
 Doctrina Plac. ITS; 3 Com. Dig. 291; Dane, 
 Abr. Index. In real actions, the declaration 
 is usually called a count ; Steph. PI. 29. See 
 Common Counts. 
 
 COUNT SUR CONCESSIT SOLVERE. A 
 
 claim based upon a promise to pay. An an- 
 cient count in the mayor's court of I- 
 and now commonly used there. Under it the 
 plaintiff can sue for any liquidated demand, 
 but not for money due under a covenant. 
 Particulars defining more precisely the na- 
 ture of the claim must be delivered with the 
 declaration. Odger, C. L. 1029. 
 
 COUNT AND COUNT-OUT. These words 
 refer to the count of the house of commons 
 by the speaker. Forty members, including 
 the speaker, are required to constitute a 
 quorum. Each day alter parliament is open- 
 ed, the speaker counts the house. If forty
 
 COUNT AND COUNT-OUT 
 
 692 
 
 CO UNTER-CL AIM 
 
 members are not present he waits till four 
 o'clock, and then counts the house again. If 
 forty members are not then present, he at 
 once adjourns it to the following meeting 
 day. May, Pari. Prac. 219. 
 
 COUNTER (spelled, also, Compter). The 
 name of two prisons formerly standing in 
 London, but now demolished. They were 
 the Poultry Counter and Wood Street Coun- 
 ter. Cowell; Whish. L. D. ; Coke, 4th Inst 
 248. 
 
 COUNTER AFFIDAVIT. An affidavit 
 made in opposition to one already made. 
 Tbis is allowed in the preliminary examina- 
 tion of some cases. 
 
 COUNTER-BOND. 
 
 2 Leon. 90. 
 
 A bond to indemnify. 
 
 COUNTER-CLAIM. A liberal practice in- 
 troduced by the reformed codes of procedure 
 in many of the United States, and compre- 
 hending Recoupment and Set-off, q. v., 
 though broader than either. 
 
 The New York code thus defines it: 
 The counter-claim must tend, in | some way, to 
 diminish or defeat the plaintiff's recovery, and must 
 be one of the following causes of action against the 
 plaintiff, or, in a proper case, against the person 
 whom he represents, and in favor of the defendant, 
 or of one or more defendants, between whom and 
 the plaintiff a separate judgment may be had in the 
 action: — 
 
 1. A cause of action arising out of the contract or 
 transaction, set forth in the complaint as the foun- 
 dation of the plaintiff's claim, or connected with the 
 subject of the action. 
 
 2. In an action on contract, any other cause of ac- 
 tion on contract existing at the commencement of 
 the action. N. Y. Code, 1889, § 501. See National 
 Fire Ins. Co. v. McKay, 21 N. Y. 191 ; Waddell v. 
 Darling, 51 id. 327 ; Smith v. Hall, 67 id. 48 ; Elwell 
 v. Skiddy, 77 id. 282 ; Ballou v. Ballou, 78 id. 325 ; 
 Cook v. Jenkins, 79 id. 575 ; Coffin v. McLean, 80 id. 
 560; Ward v. Craig, 87 id. 550; Clapp v. Wright, 
 21 Hun (N. Y.) 240 ; Dietrich v. Koch, 35 Wis. 618 ; 
 Devries v. Warren, 82 N. C. 356; Howe Mach. Co. 
 v. Reber, 66 Ind. 498 ; Brady v. Brennan, 25 Minn. 
 210. 
 
 By such statutes when a counter-claim is 
 established the defendant may recover in the 
 same action the amount by which his claim 
 exceeds that of the plaintiff. A question as 
 to which the cases vary in result is the ef- 
 fect upon the jurisdiction when the counter- 
 claim exceeds the limit of the court. Some 
 courts hold that the jurisdiction is not oust- 
 ed by reason of excess in the amount of the 
 counter-claim ; Howard Iron Works v. Ele- 
 vating Co., 176 N. Y. 1, 68 N. E. 66; aliter, 
 Haygood v. Boney, 43 S. C. 63, 20 S. E. 803 ; 
 but it is said that the majority of the cases 
 deny the right in such case to file the coun- 
 ter-claim; 17 Harv. L. Rev. 350 (citing Gris- 
 wold v. Pieratt, 110 Cal. 259, 42 Pac. 820, 
 and Almeida v. Sigerson, 20 Mo. 497), where 
 that view is approved. 
 
 A counter-claim is a matter which is capa- 
 ble of use as the basis of a judgment against 
 the plaintiff, and, of course, may be used as 
 r set-off ; Marconi Wireless Telegraph Co. 
 
 of America v. Electric Signaling Co., 206 
 Fed. 295. 
 
 COUNTER-LETTER. An agreement to 
 reconvey where property has been passed by 
 absolute deed with the intention that it shall 
 serve as security only. A defeasance by a 
 separate instrument. Livingston v. Story, 11 
 Pet. (U. S.) 351, 9 L. Ed. 746. 
 
 COUNTER-SECURITY. Security given to 
 one who has become security for another, 
 the condition of which is, that if the one 
 who first became surety shall be damnified, 
 the one who gives the counter-security will 
 indemnify him. 
 
 COUNTERFEIT. To make something 
 false in the semblance of that which is true. 
 It always implies a fraudulent intent. It 
 refers usually to imitations of coin or paper 
 money. See Vin. Abr. Counterfeit; State v. 
 Calvin, R. M. Charlt (Ga.) 151; Kirby y. 
 State, 1 Ohio St. 1S5; Foegeky. 
 
 COUNTERMAND. A change or recalling 
 of orders previously given. 
 
 Express countermand takes place when 
 contrary orders are given and a revocation 
 of the prior orders is made. 
 
 Implied countermand takes place when a 
 new order is given which is inconsistent 
 with the former order. 
 
 When a command or order has been given, 
 and property delivered, by which a right 
 vests in a third person, the party giving the 
 order cannot countermand it. For example, 
 if a debtor should deliver to A a sum of 
 money to be paid to B, his creditor, B has 
 a vested right in the money, and, unless he 
 abandon that right and refuse to take the 
 money, the debtor cannot recover it from A. 
 1 Rolle, Abr. 32, pi. 13; Yelv. 164; Styles 
 296. See 3 Co. 26 6 ; 2 Ventr. 298 ; 10 Mod. 
 432; Vin. Abr. Countermand (A, 1), Bail- 
 ment (D) ; 9 East 49; Bac. Abr. Bailment 
 (D) ; Com. Dig. Attorney (B, 9), (C, 8); 
 Dane, Abr. Countermand. 
 
 COUNTERPART. Formerly, each party 
 to an indenture executed a separate deed : 
 that part which was executed by the grantor 
 was called the original, and the rest the 
 counterparts. It is now usual for all the 
 parties to execute every part ; and this makes 
 them all originals. 2 Bla. Com. 296. 
 
 In granting lots subject to a ground-rent 
 reserved to the grantor, both parties execute 
 the deeds, of which there are two copies; 
 although ' both are original, one of them is 
 sometimes called the counterpart. See 12 
 Vin. Abr. 104; Dane, Abr. Index; 7 Com. 
 Dig. 443 ; Merlin, Rep. Double Ecrit. 
 
 COUNTERPLEA. A plea to some matter 
 incidental to the main object of the suit, and 
 out of the direct line of pleadings. Steph. 
 PL, Andr. ed. 165 ; 2 Wms. Saund. 45 h. 
 Thus, counterplea of oyer is the defendant's 
 allegations why oyer of an instrument should
 
 COUNTERPLEA 
 
 093 
 
 COUNTY 
 
 not be granted. Countcrplea to aid prayer 
 is the demandant's allegation why the vouch- 
 ee of the tenant in a real action, or a stran- 
 ger who asks to come in to defend his right, 
 should not be admitted. Countcrplea of 
 voucher is the allegation of the vouchee in 
 avoidance of the warranty after admission 
 to plead. Counterplea8 are of rare occur- 
 rence. Tennis de la I'll! Com. Dig. You<h- 
 er (B, 1, 2) ; Dane, Al.r. 
 
 COUNTEUR. In the time of Edward I, a 
 pleader; also called a Narrator, and Ser- 
 j< ant-Counteur. 
 
 COUNTRY. A word often used in plead- 
 ing and practice. Usually signifies a jury, 
 or the inhabitants of a district from which 
 a jury is to he summoned. 3 Bla. Com. 349; 
 
 4 id. 349; Bteph. PI. 73, 78, 230. 
 
 COUNTY. One of the civil divisions of a 
 country for judicial and political purposes. 
 l Bla. Com. 113. Etymologically, it denotes 
 that portion of the country under the im- 
 mediate government of a count. 1 Bla. Com. 
 116. 
 
 The states are generally divided into coun- 
 ties. Counties are, in many of the states, 
 divided into townships or towns. In the 
 New England states, however, towns are the 
 basis of all civil divisions, and the counties 
 are rather to be considered as aggregates of 
 towns, so far as their origin is concerned. 
 In Pennsylvania, the state was originally di- 
 vided into three counties by William Tenn. 
 See Proud's Hist. Pa. 234 : 2 id. 258. 
 
 In some states, a couuty is considered a 
 corporation ; Coles v. Madison County, 
 Breese (111.) 154, 12 Am. Dec. 101 ; in others, 
 it is held a quasi corporation; Inhabitants of 
 County of Hampshire v. Franklin County, 
 16 Mass. ST ; Emerson v. Washington Coun- 
 ty, 9 Greenl. (Me.) 88; Jackson v. Cory, S 
 Johns. (N. Y.) 385; Boykin's Devisees v. 
 Smith, 3 Munf. (Va.) 102. In regard to the 
 division of counties, see Drake's Adm'r v. 
 Vaughan, 6 J. J. Marsh. (Ky.) 147; State v. 
 Jones, 9 N. J. L. 357, 17 Am. Dec. 4S3 ; Gary 
 v. People, 9 Cow. (N. Y.) 640; Walsh v. 
 Com.. S9 Pa. 419, 33 Am. Rep. 771; Blount 
 County v. Loudon County, 8 Baxt. (Term.) 
 74; Stuart v. Bair, id. 141; Newton v. Com- 
 missioners. 100 U. S. 548, 25 L. Ed. 710; 
 Eagle v. Beard, 33 Ark. 497 ; Cocke v. Gooch, 
 
 5 Heisk. (Tenn. ) 294. A county may he re- 
 quired by act of legislature to build a public 
 work outside the county limits, where it is 
 of special interest to the people of the coun- 
 ty; Carter v. Bridge. 104 Mass. 236; Talbot 
 County Com'rs v. County Com'rs. 50 Md. 245. 
 
 A state has a greater latitude of control 
 over a county, than over a town or city, as 
 the latter had a two-fold character— public, 
 as an agency of the state, and private, as 
 affecting matter of local concern; state v. 
 Board of Com'rs, 170 Ind. 595, B5 X. E. 513. 
 
 The terms "county" and "people of the 
 
 county" are, or may be, used Interchange- 
 ably; St Louis County Court v. Griswold, 
 58 Mo. 175. 
 
 In the English law, this word signifies the 
 same as shire, — county from 
 
 the French, and slme from the S 
 these words signify a circuit or portion of 
 the realm into which the w 
 trided, for the better goVernme&f thereof and 
 the more easy administration of 
 There is no part of England that Is not with- 
 in Borne county; and the shirereeve 
 was the governor of the province, under the 
 comes, earl, or count. 
 
 county commissioners. Certain of- 
 ficers generally intrusted with the su] 
 tendence of the collection of the county tax- 
 es and the disbursements made for the coun- 
 ty. Thej are Invested by the local laws with 
 various powers. In some of the states they 
 are called supervisors. 
 
 COUNTY CORPORATE. A city or ; 
 with more or less territory annexed consti- 
 tuting a county ley' itself. 1 Bla. Com. 120. 
 See state v. Finn, 4 Mo. App. 347. They dif- 
 fer in no material points from other coun- 
 ties. 
 
 COUNTY COURTS. A number of differ 
 ent local courts existed in England in early 
 times, but their jurisdiction was gradually 
 absorbed by the royal courts of justice to 
 such an extent that in the I8th century prac- 
 tically all the judicial work of the country 
 was done by the common law courts, the 
 Lord Chancellor or the Master of the Rolls; 
 1 Holdsw. Hist. E. L. 418. See the various 
 titles under Court. In 1846 courts of limit- 
 ed jurisdiction were established for England 
 and Wales. They were inferior courts of 
 record. Various acts in reference to these 
 courts were consolidated in an act passed in 
 1S88 under which England and Wales wen' 
 divided in 56 districts, in which, as a rule, 
 a County Court is held by one of the 53 
 County Court judges once in every month, 
 except September. The judges, who must 
 be barristers of seven years standing, are 
 appointed by the Lord Chancellor (except 
 in the Duchy of Lancaster!. 
 
 Jurisdiction depends mainly on the place 
 where the defendant resides or the property 
 in dispute is situated, and the nature and 
 amount of the claim. Ordinarily, suit must 
 be brought In the district where defendant 
 resides or carries on business, but there are 
 special exceptions 
 
 The ordinary jurisdiction extends i if the 
 amount in controversy docs not exceed £100) 
 to personal actions, ejectment, the trial of 
 title to corporeal or incorporeal heredita- 
 ments. A County Court cannot, except by 
 consent, try any action in which the title to 
 any toll. fair, market or franchise (includ- 
 ing patents i is in question, or for libel, slan- 
 der, seduction or breach of promise of mar
 
 COUNTY COURTS 
 
 694 
 
 COUPONS 
 
 riage. It has all the powers in equity of the 
 High Court of Justice (up to the jurisdic- 
 tional amount of £500) in administration 
 actions by creditors, legatees, devisees, heirs- 
 at-law and next of kin, in actions for the ex- 
 ecutions of trusts, for the foreclosure of any 
 charge or lien, for the specific performance, 
 reforming or cancelling of agreements for the 
 sale or lease of property, for dissolution or 
 winding up partnerships. 
 
 In common law, but not in equity, the 
 parties may agree that a particular court 
 may try an action for a claim of any amount. 
 In the large provincial towns it is a court 
 of bankruptcy with all the powers therein 
 of the High Court. Several of the County 
 Courts have jurisdiction in admiralty. Nu- 
 merous acts have extended their jurisdiction 
 in special instances. 
 
 In American Law. Courts in many of the 
 states of the United States and in Canada, 
 of widely varying powers. 
 
 COUNTY PALATINE. An independent 
 principality in England and Wales of the 
 continental type in which the king's writ 
 did not run. 1 Holdsw. Hist. E. L. 49. In 
 feudal times political power was distributed 
 among the larger landowners, who procured 
 grants to themselves of the new processes 
 and powers of the Curia Regis. Commission- 
 ers were sent out (1274) to enquire by what 
 warrant different landowners were exercis- 
 ing their jura regalia. Many franchises 
 were cancelled ; the franchises of some re- 
 mained. The Counties Palatine were Dur- 
 ham, Lancaster and Chester (by prescrip- 
 tion). The palatine jurisdiction also existed 
 in Wales and the Stannaries (see Stannary 
 Courts) and in a lesser degree in the liber- 
 ties of Ely, Pembroke (taken away by 27 
 Henry VIII. c. 26, § 17) and Hescham and 
 the Universities of Oxford and Cambridge. 
 id. The name was derived from palatinus 
 used on the continent to imply something 
 peculiarly royal. Lapsley, County Palatin- 
 ate of Durham. Coke says the powers of 
 those that had counties palatinate was King- 
 like, for they might pardon treasons, mur- 
 ders, felonies and outlawries and make jus- 
 tices in Eyre, of assize, etc. All writs ran, 
 and criminal process was made, in the name 
 of the person having the County Palatine. 4 
 Inst. 205. 
 
 See Courts of the Counties Palatine. 
 
 COUNTY SESSIONS. In England, the 
 Court of General Quarter Sessions of the 
 Peace held in every county once in every 
 quarter of a year. Mozley & W. Law Diet. 
 
 COUPONS. Those parts of a commercial 
 instrument which are to be cat, and which 
 are evidence of something connected with 
 the contract mentioned in the instrument. 
 They are generally attached to bonds or cer- 
 tificates of loan, where the interest is paya- 
 ble at particular periods, and, when the in- 
 terest is paid, they are cut off and delivered 
 
 to the payor. In England, they are known 
 as warrants or dividend warrants, and the 
 securities to which they belong, debentures ; 
 13 C. B. 372. In the United States they 
 have been decided to be negotiable instru- 
 ments, if payable to bearer or order, upon 
 which suit may be brought though detached 
 from the bond ; Town of Cicero v. Clifford, 
 53 Ind. 191 ; Beaver County v. Armstrong, 
 44 Pa. 63; Haven v. Depot Co., 109 Mass. 88; 
 Antoni v. Wright, 22 Gratt. (Va.) 833; Lex- 
 ington v. Butler, 14 Wall. (U. S.) 282, 20 L. 
 Ed. 809 ; Thompson v. Perrine, 106 U. S. 589, 
 1 Sup. Ct. 564, 27 L. Ed. 298; Jones, R. R. 
 Sec. § 320; Myers v. R. Co., 43 Me. 232; 
 Home v. State, 82 N. C. 3S2; Walker v. 
 State, 12 S. C. 200. Otherwise, in Clarke v. 
 Janesville, 1 Biss. 105, Fed. Cas. No. 2,854, 
 if the bond to which the coupons were at- 
 tached was not negotiable; see Myers v. R. 
 Co., 43 Me. 232 ; and otherwise if not payable 
 to bearer or order; Evertson v. Bank, 66 N. 
 Y. 14, 23 Am. Rep. 9; see Crosby v. R. Co., 
 26 Conn. 121. They are distinct instruments 
 from the bonds, and can be added to the 
 bond thereof to make up a jurisdictional 
 amount; Edwards v. Bates County, 163 U. 
 S. 269, 16 Sup. Ct 967, 41 L. Ed. 155. Suits 
 on a bond and on coupons cut therefrom 
 are different causes of action ; Presidio Coun- 
 ty, Tex., v. Bond & Stock Co., 212 U. S. 58, 
 29 Sup. Ct. 237, 53 L. Ed. 402. 
 
 In England the question has not been di- 
 rectly decided, but it has been held that 
 they are not promissory notes, and therefore 
 do not require a stamp ; 13 C. B. 373. Divi- 
 dend warrants of the Bank of England made 
 payable to a particular person, but not con- 
 taining words of transfer, were held not to 
 be negotiable, notwithstanding they had 
 been so by custom for sixty years ; 9 Q. B. 
 396. A purchaser of overdue coupons takes 
 only the title of his vendor ; Arents v. Com., 
 18 Gratt. (Va.) 750; Gilbough v. R. Co., 1 
 Hughes 410, Fed. Cas. No. 5,419. Negotiable 
 coupons were held entitled to days of grace; 
 Evertson v. Bank, 66 N. Y. 14, 23 Am. Rep. 
 9; Jones, R. R. Sec. § 326; contra, Arents v. 
 Com., 18 Gratt. (Va.) 773; 2 Dan. Neg. Instr., 
 3d ed. § 1490 a. 
 
 Interest on coupons may be recovered in 
 a suit on the coupons ; Beaver County v. 
 Armstrong, 44 Pa. 75; Hollingsworth v. De- 
 troit, 3 McLean 472, Fed. Cas. No. 6,613; 
 Genoa v. Woodruff, 92 U. S. 502, 23 L. Ed. 
 586; Cromwell v. Sac County, 96 U. S. 51, 
 24 L. Ed. 6S1; Ashuelot R. Co. v. Elliot, 57 
 N. H. 397 ; Burroughs v. Richmond County 
 Com'rs, 65 N. C. 234 ; Connecticut Mut. Life 
 Ins. Co. v. R. Co., 41 Barb. (N. Y.) 9. The 
 rate of interest provided for in the bond con- 
 tinues on the coupon till it is merged in 
 judgment; Cromwell v. Sac County, 96 U. 
 S. 51, 24 L. Ed. 6S1; McLane v. Abrams, 2 
 Nev. 199 ; Marietta Iron Works v. Lotti- 
 mer, 25 Ohio St. 621; contra, Brewster v. 
 Wakefield, 22 How. (U. S.) US, 16 L. Ed.
 
 COUPONS 
 
 695 
 
 COU1VT 
 
 301; Com. of Virginia v. state, '62 Md. 501; 
 Pearce v. Hennessy, 10 E. I. 228. See Jones, 
 E. R. Sec. § 336. A suit on the coupon is 
 not barred by the statute of limitations un- 
 less a suit on the bond would be barred; 
 Lexington v. Butler, 14 Wall. (U. SJ 282, 
 20 L. Ed. 809; otherwise, when the coupons 
 have passed into the bands of the party 
 who does not hold the bonds; Clark v. Iowa 
 City, 20 Wall. (U. S.i 583, 22 J.. Ed. 427. 
 As to practice In actions on coupons, see 
 Kenosha v. Lanison, Wall. (U. S.) -ill, 10 
 L. Ed. 725. 
 
 C0UR DE CASSATION. In French Law. 
 See Courts of Ekance. 
 
 COURSE. The direction of a line with 
 reference to a meridian. 
 
 Where there are no monuments, the laud 
 Is usually described by courses and distances 
 and those mentioned in the patent or deed 
 will fix the boundaries. But when the lines 
 are actually marked, they must be adhered 
 to though they vary from the course men- 
 tioned in the deeds. See Boundary. 
 
 COURSE OF BUSINESS. What is usual- 
 ly done in the management of trade or busi- 
 ness. A statute exempting from distress 
 property deposited with a tavern-keeper "in 
 the usual course of business," only includes 
 property deposited by a guest for safekeep- 
 ing; Harris v. Boggs, 5 Blackf. (Ind.) 489. 
 Carriages used for carrying the band and 
 performers of a circus in a street parade, 
 are not carriages "used solely for the con- 
 veyance of any goods or burdens in the 
 course of trade;" L. R. 9 Exch. 25. 
 
 Men are presumed to act for their own 
 interest, and to pursue the way usually 
 adopted by men generally: hence it is pre- 
 sumed in law that men in their actions will 
 pursue the usual course of trade. 
 
 COURSE OF THE VOYAGE. By this 
 term is understood the regular and custom- 
 ary track, if such there be, which a ship 
 takes in going from one port to another, 
 and the shortest way. Marsh. 1ns. ISo; 
 Phill. Ins. 9S1. 
 
 COURT (Ft. cour, Dutch, kocrt, a yard). 
 A body in the government to which the ad- 
 ministration of justice is delegated. 
 
 The presence of a sufficient number of 
 the members of such a body regularly con- 
 vened in an authorized place at an appoint- 
 ed time, engaged in the full and regular per- 
 formance of its fund ions. WIghtman v. 
 Karsner, 20 Ala. 4-10; P.runiley v. State. 20 
 Ark. 77. 
 
 The place where justice is judicially ad- 
 ministered. Co. Litt. 58 a; '6 Bla. Com. 23, 
 25. See Hobart v. Hobaft, 45 la. 501. 
 
 The judge or Judges themselves, when duly 
 convened. See Jtdge. 
 
 The term is used in all the above senses, though 
 but Infrequently In the third sense given. The ap- 
 plication of the term— which orignally denoted the 
 place of assembling— to denote the assemblage, 
 
 strikingly resembles the similar application of the 
 Laten term curia tif, iudn.il, it be not a mere trans- 
 lation), and is readily explained by the fact 
 the curlier courts, v ;:i the 
 
 court-yard of the baron or of the king himself, 
 of those who were qualified and whose duty it 
 was so to appear at stated times or upon sum. 
 Traces of this usage ana .n of cour' 
 
 remain in the courts baron, the various courts for 
 the trial of Impeachm . gland and the 
 
 United States, and in the control I y the 
 
 parliament of England and the legislatures of the 
 various states of the United States over the 
 ization of courts of justice, as constituted in i 
 times. Indeed, the English parliament is still the 
 Ui'jh Court of Parliament, and In Ua 
 the united legislative bodies are entitled, as they 
 (and the body to which they succeeded) have been 
 from time Immemorial, the (Jenral Court. 
 
 In England, however, and in those states of the 
 United States which existed as colonies prior to the 
 revolution, most of these Judicial functions were 
 early transferred to bodies of a compacter otv 
 tion, whose sole function was the public ael 
 tratlon of Justice. The power of Impeachment of 
 various high officers, however, Is still retained by 
 the legislative bodies both In England and the 
 United States, and is, perhaps, the only Judicial 
 function which has ever been exercised by the leg- 
 islative bodies In the newer states of the I 
 States. These more compact bodies are the courts, 
 as the term is used in Its modern acceptance. 
 
 The one common and essential feature In all 
 courts is a Judge or Judges— so essential. Indeed, 
 that they are even called (he court, as distinguish. .1 
 from the accessory and subordinate officers; Mich- 
 igan Cent. R. Co. v. R. Co., 3 Ind. 239; McClure v. 
 McClurg, 53 Mo. 173; see Gold v. R Co., 19 Vt. 17v 
 Courts of record are also provided with a recording 
 officer, variously known as clerk, prothonotary, reg- 
 ister, etc.: while in all courts there are counsellors, 
 attorneys, or similar officers recognized as peculiar- 
 ly suitable persons to represent the parties actually 
 concerned In the causes, who are considered as offi- 
 cers of the court and assistants of the judges, to- 
 gether with a variety of ministerial officers, such as 
 sheriffs, constables, bailiffs, tipstaves, criers, etc. 
 For a consideration of the functions of the various 
 members of a court, see the various appropriate 
 titles, as Jury, Shehiif, etc. 
 
 Courts are said to belong to one or more 
 of the following classes, according to the 
 nature and extent of their jurisdiction, their 
 forms of proceeding, or the principles upon 
 which they administer justice, viz.: 
 
 Admiralty. See ADMIRALTY. 
 
 Appellate, which take cognisance of causes 
 removed from another court by appeal or 
 writ of error. See Aiti.au and Error; Bill 
 of Exceptions; Division ok Opinion. 
 
 Civil, which redress private wrongs. Bee 
 Jurisdiction. 
 
 Criminal, which redress public wrongs, 
 that is, crimes or misdemeanors. 
 
 Ecclesiastical. See Ecclesiastical O 
 
 Of equity, which administer justice ac- 
 cording to the principles of equity. 
 ]'.<>i ity; Court of Equity; Court of Chan- 
 ci ST. 
 
 Of general jurisdiction, which have cogni- 
 zance of and may determine causes various 
 in their nature. 
 
 Inferior, which are subordinate to other 
 courts. Nugent v. State, 18 Ala. 5S2L Also, 
 those of a very limited jurisdiction. 
 
 Of law, which administer justice accord- 
 ing to the principles of the common law.
 
 COURT 
 
 696 
 
 COURT OF APPEALS 
 
 Of limited or special jurisdiction, which 
 can take cognizance of a few specified mat- 
 ters only. 
 
 Local, which have jurisdiction of causes 
 occurring in certain places only, usually the 
 limits of a town or borough, or, in England, 
 of a barony. 
 
 Martial. See Court-Martial. 
 
 Not of recura. See Court of Record. 
 
 Of original jurisdiction, which have juris- 
 diction of causes in the first instance. See 
 Jurisdiction. 
 
 Of record. See Court of Record. 
 
 Superior. In England the High Court of 
 justice is spoken of a superior court of rec- 
 ord; in the United States the term superior 
 courts has come to be applied to courts of 
 intermediate jurisdiction between the infe- 
 rior and supreme courts ; also, those of con- 
 trolling, as distinguished from those of sub- 
 ordinate, jurisdiction. As to superior and 
 inferior courts, see 34 Amer. L. Rev. 71. 
 
 Supreme, which possess the highest and 
 controlling jurisdiction ; also, in some states, 
 a court of higher jurisdiction than the su- 
 perior courts, though not the court of final 
 resort. 
 
 A court cannot pass upon the validity of 
 its own organization ; State v. Hall, 142 N. C. 
 710, 55 S. E. 806; but it would at least be 
 a de facto court and its authority could not 
 be attacked collaterally; In re Manning, 139 
 U. S. 504, 11 Sup. Ct. 624, 35 L. Ed. 264. 
 See De Facto. 
 
 As to holding court with closed doors, see 
 Open Court. 
 
 See the various titles following. 
 
 Courts of the United States are treated 
 under United States Courts; Courts of 
 Great Britain, Ireland, Scotland, and France, 
 under Courts of England, Ireland, Scot- 
 land, and France, respectively. 
 
 COURT OF ADMIRALTY. See Admiral- 
 ty ; United States Courts. 
 
 COURT OF ANCIENT DEMESNE. A 
 
 court of peculiar constitution, held by a 
 bailiff appointed by the king, in which alone 
 the tenants of the king's demesne could be 
 impleaded. 2 Burr. 1046; 1 Spence, Eq. Jur. 
 100; 2 Bla. Com. 99; 1 Report Eng. Real 
 Prop. Comm. 28; 1 Steph. Com. 224; 1 Poll. 
 & Maitl. 367. 
 
 COURT OF APPEAL. In England, one 
 of the two sections of the Supreme Court of 
 Judicature. See Courts of England. 
 
 COURT OF APPEALS. An appellate tri- 
 bunal which, in Kentucky, Maryland, and 
 New York, is the court of last resort. In 
 New Jersey, it is known as the Court of Er- 
 rors and Appeals ; in Virginia and West Vir- 
 ginia, the Supreme Court of Appeals ; in 
 Connecticut, the Supreme Court of Errors ; 
 in Massachusetts and Maine, the Supreme 
 Judicial Court; in the other states, and in 
 
 the federal courts, the Supreme Court. In 
 Texas there is a court of Civil Appeals, and 
 in Illinois, Indiana, Missouri, Pennsylvania, 
 and other states, and the United States, 
 there are appellate courts inferior to the 
 highest court of appeals. 
 
 COURT OF ARCHDEACON. The most in- 
 ferior of the English ecclesiastical courts, 
 from which an appeal lay to the Consistory 
 Court. The archdeacon formerly held it as 
 a deputy of the bishop. Later it had a cus- 
 tomary jurisdiction, and the bishops adopted 
 the plan of exercising their jurisdiction 
 through officials; 1 Holdsw. Hist. E. L. 369. 
 
 COURT OF THE ARCHES. The usual 
 name for the Court of the "Official Principal" 
 of the Archbishop of Canterbury. It was a 
 court of appeal from all the diocesan courts 
 and also a court of first instance in all ec- 
 clesiastical causes. 
 
 The most ancient consistory court belonging to 
 the archbishop of Canterbury for the trial of spir- 
 itual causes, the judge of which is called the dean 
 of the arches, because he anciently held his court in 
 the church of St. Mary le Bow (Sancta Maria de 
 arcubus, — literally, "St. Mary of the arches"), so 
 named from the style of its steeple which is raised 
 upon pillars built archwise, like so many bent 
 bowes. Termes de la Ley. It is now held, as are 
 also the other spiritual courts, In the hall belonging 
 to the College of Civilians, commonly called Doctor's 
 Commons. It is still a part of the English system. 
 
 Its proper jurisdiction is only over the 
 thirteen peculiar parishes of London, which 
 were exempt from the jurisdiction of the 
 bishop of London ; but, the office of dean of 
 the arches having been for a long time unit- 
 ed with that of the archbishop's "Official 
 Principal," the judge of the arches, in right 
 of such added office, receives and determines 
 appeals from the sentences of all inferior 
 ecclesiastical courts within the province. 3 
 Bla. Com. 64; 3 Steph. Com. 306; Whart. 
 Law Diet. ArcTies Court. Many suits are al- 
 so brought before him as original judge, the 
 cognizance of which properly belongs to in- 
 ferior jurisdictions within the province, but 
 in respect of which the inferior judge has 
 waived his jurisdiction under a certain form 
 of proceeding known in the common law as 
 letters of request. 3 Steph. Com. 306; 2 
 Chitty, Gen. Pr. 496; 2 Add. Eccl. 406. 
 
 From the court of arches an appeal for- 
 merly lay to the pope, and afterwards, by 
 statute 25 Hen. VIII. c. 19, to the king in 
 chancery (i. e., to the Court of Delegates, 
 q. v.), as supreme head of the English church, 
 but now, by 2 & 3 Will. IV. c. 92, and 3 & 4 
 Will. IV. c. 41, to the Judicial Committee of 
 the Privy Council. 
 
 A suit is commenced in the ecclesiastical 
 court by citing the defendant to appear, and 
 exhibiting a libel containing the complaint 
 against him, to which he answers. Proofs 
 are then adduced, and the judge pronounces 
 a decree upon hearing the arguments of ad- 
 vocates, which is then carried into effect
 
 COURT OF THE ARCHES 
 
 697 COURTS OF AND NISI PRIUS 
 
 The corresponding court of the archbishop 
 of York was the Chancery Court 
 
 The Public Worship Regulation Act (37 & 
 38 Vict.) provides for the appointment by 
 the archbishops of Canterbury and York of 
 a single judge to hold the positiod of the Of- 
 ficial Principal of the Court of the Arches 
 and the Chancery Court, and Master of the 
 Faculties to the Archbishop of Canterbury. 
 He must be either a barrister of 10 years 
 standing or a judge of one of the superior 
 courts. 
 
 COURT OF ASSISTANTS. A court In 
 Massachusetts organized in 1G30, consisting 
 of the governor, deputy governor and assist- 
 ants. It exercised the whole power both 
 legislative and judicial of the colony and an 
 extensive chancery jurisdiction as well; S. 
 D. Wilson in IS Am. L. Rev. 226. 
 
 COURTS OF ASSIZE AND NISI PRIUS. 
 Courts composed of two or more commis- 
 sioners, called judges of assize (or of assize 
 and nisi prius), who are twice in every year 
 sent by special commission on circuits all 
 round the kingdom, to try, by a jury of the 
 respective counties, the truth of such matters 
 of fact as are then under dispute In the 
 courts of Westminster Hall; there being, 
 however, as to London and Middlesex, this 
 exception, that, instead of their being com- 
 prised within any circuit, courts of nisi prius 
 are held there for the same purpose, in and 
 after every term, at what are called the Lon- 
 don and Westminster sittings. 
 
 These judges of assize came into use in the room 
 of the ancient justices in eyre ( justiciarii in itin- 
 ere), who were regularly established, if not first 
 appointed, by the Parliament of Northampton, A. D. 
 1176 (the first of these of whom we have any record, 
 were appointed in 1170), with a delegated power from 
 the king's great court or aula regis, being looked 
 upou as members thereof; though the present jus- 
 tices of assize and nisi prius are more immediately 
 derived from the stat. Westm. 2, 13 Edw. I. c. 30, 
 and consist principally of the judges of the superior 
 courts of common law, being assigned by that stat- 
 ute out of the king's sworn justices, associating to 
 themselves one or two discreet knights of each coun- 
 ty. By stat. 27 Edw. I. c. 4 (explained by 12 Edw. 
 II. c. 3), assizes and inquests are allowed to be 
 taken before any one justice of the court in which 
 the plea Is brought, associating with him one 
 knight or other approved man of the couuty: by 
 stat. 14 Edw. III. c. 16, inquests of nisi prius may 
 be taken before any justice of either bench (though 
 the plea be not depending in his own court), or be- 
 fore the chief baron of the exchequer, if he be a 
 man of the law, or, otherwise, before the justices 
 of assize, so that one of such justices be a ju<lge 
 of the king's bench or common pleas, or the king's 
 sergeant sworn; and, finally, by 2 & 3 Vict. c. 22, 
 all justices of assize may, on their respective cir- 
 cuits, try causes pending in the court of exchequer, 
 without issuing (as it had till then been considered 
 necessary to do) a separate commission from the 
 exchequer for that purpose. 3 Steph. Com. S62 ; 3 
 Bla. Com. 57, 5S. 
 
 There are eight circuits (formerly seven), 
 viz.: Northern, Northeastern, Midland, South- 
 eastern, Oxford, Western, North Wales and 
 Chester and South Wales. At least one 
 judge of the High Court goes around each cir- 
 cuit three times a year — in the winter, sum- 
 
 mer and autumn. Two judges attend at the 
 larger towns twice a year. At Liverpool, 
 Manchester and Leeds four assizes are held 
 in each year, two of them by two judges and 
 two by one judge. The judges are under 
 three commissions — oyer and term 
 delivery and assize. The 1 
 them inter alia to try civil actione . 2 
 Com. Law. 985. 
 
 Where courts of this kind exist in the 
 United States, they are instituted by statu- 
 tory provision. Dawson v. Ryan, 4 W. ft 8. 
 (Pa.) 404. See Oyer and Terminer; Gaol 
 I mi inert; Courts of Oyeb and Terminer 
 and General Gaol Delivery; Nisi Prius; 
 Commission of the Peace. 
 
 COURT OF ATTACHMENTS. The lowest 
 of the three courts held in the forests. It 
 lias fallen into total disuse. It was held be- 
 fore the verderers of the forest once in every 
 forty days, to view the attachments by the 
 foresters for offences against the vert and 
 the venison. It had cognizance only of small 
 trespasses. Larger ones were enrolled and 
 heard by the Justices in Lyre; 1 Holdsw. 
 Hist E. L. 343. See Courts of the Forest; 
 Rawle, Exmoor For. 51. 
 
 COURT OF AUDIENCE. The Archbishop 
 of Canterbury p a jurisdiction con- 
 
 current with that of the Court of the Arches, 
 which he exercised in the Court of Audience, 
 later held by a judge, it does not appear 
 to have been revived after the Restoration. 
 1 Holdsw. Hist. E. L. 371. The Archbishop 
 of York held a like Court of Audience. 
 
 COURT OF AUGMENTATION. A COttTt 
 established by 27 Hen. VIII. c. 27, for man- 
 aging the revenues and possessions of all 
 monasteries whose income was under 
 year (which by an act of parliament of the 
 same session had been given to the king), 
 and for determining suits relating thereto. 
 
 It was called "The Court of the Am: 
 mentations of the Revenues of the King's 
 Crown" (from the augmentation of the rev- 
 enues of the crown derived from the suppres- 
 sion of the monasteries), and was a court of 
 record, with one great seal and one privy 
 seal, — the officers being a chancellor, who 
 had the great seal, a treasurer, a king's at- 
 torney and solicitor, ten auditors, seventeen 
 receivers, with clerk, usher, etc. 
 
 All dissolved monasteries under the above 
 value, with some exceptions, were in survey 
 of the court, the chancellor of which was di- 
 rected to make a yearly report of their rev- 
 enues to the king. The court was diss 
 in the reign ol queen Mary, but the Ollice of 
 Augmentation remained long after: and 
 the records of the court are now at the Pub- 
 lic Record Ollice. CowelL 
 
 COURT OF BANKRUPTCY. A court of 
 record, in England, with jurisdiction in bank- 
 ruptcy, primary and appellate, which is de- 
 clared a court of law and equity for that
 
 COURT OF BANKRUPTCY 
 
 698 
 
 COURT OF CHANCERY 
 
 purpose. The Bankrupt Law Consolidation 
 Act, 1849. 
 
 By the judicature acts, 1S73 and 1875 (q. 
 v.) the court of bankruptcy was consolidated 
 into the supreme court of judicature. 
 
 COURT BARON. A domestic court, inci- 
 dent to every manor, held by the steward 
 within the manor, for redressing misdemean- 
 ors and nuisances therein, and for settling 
 disputes among the tenants relating to prop- 
 erty. It is not a court of record. 1 Poll. & 
 Maitl. Hist E. L. 5S0. 
 
 Coke (1st Inst. 58 a) speaks of the Court 
 Baron as of two natures ; the first, by the 
 common law, called a court baron, a freehold- 
 ers' court where they are the judges ; the 
 second, a customary court, in which the lord 
 or his steward is the judge. Blackstone (3 
 Com. 33) says that, though in their nature 
 distinct, they are frequently confounded to- 
 gether. Later writers doubt if there were 
 two courts; 1 Poll. & Maitl. Hist. E. L. 580. 
 Their jurisdiction was practically abolished by 
 the County Courts Act, 30 and 31 Vict. c. 142, s. 28; 
 3 Steph. Com. 279. In the state of New York such 
 courts were held while the state was a province. 
 See charters in Bolton's Hist, of New Chester. A 
 deed of Wm. Penn to Letitia Penn for a manor in 
 Pennsylvania granted the privilege of holding court 
 baron; Myers, Immigration of Quakers 127. They 
 existed in Maryland ; Hall, The Lords Baltimore, 
 etc. The court derived its name from the fact that 
 it was the court of the baron or lord of the manor. 
 3 Bla. Com. 33, n.; see Fleta, lib. 2, c. 53; though 
 it is explained by some as being the court of the 
 freeholders, who were in some instances called 
 barons. Co. Litt. 58 a. 
 
 The lord's steward usually presided. From 
 the 13th century he was a lawyer. All kinds 
 of personal actions (where the cause of ac- 
 tion did not exceed 40 shillings in value) 
 were tried there ; contracts, trespass, libel, 
 slander, assault, etc. Both the common law 
 and chancery courts interfered to protect 
 suitors if injustice were done. The jurisdic- 
 tion of the customary court declined and all 
 that it was used for was copyhold convey- 
 ancing business; 1 Poll. & Maitl. 578. 
 
 COURT OF CHANCERY, or CHANCERY. 
 
 A court formerly existing in England and 
 still existing in several of the United States, 
 which possesses an extensive equity jurisdic- 
 tion. 
 
 The name is said by some to be derived from that 
 of the chief judge, who is called a chancellor; oth- 
 ers derive both names directly from the cancelli 
 (bars) which in this court anciently separated the 
 press of people from the officers. See 3 Bla. Com. 
 46, n.; Story, Eq. Jur. 40; Cancellaritts. 
 
 In American Law. A court of general eq- 
 uity jurisdiction. 
 
 The terms equity and chancery, court of equity 
 and court of chancery, are constantly used as syn- 
 onymous in the United States. It is presumed that 
 this custom arises from the circumstance that the 
 equity jurisdiction which is exercised by the courts 
 of the various states is assimilated to that possessed 
 by the English courts of chancery. Indeed, in some 
 of the states it is made identical therewith by stat- 
 ute, so far as conformable to our institutions. 
 
 Separate courts of chancery or equity ex- 
 ist in a few of the states; in others, the 
 courts of law sit also as courts of equity ; 
 in others, equitable relief is administered 
 under the forms of the common law ; and 
 in others, the distinction between law and 
 equity has been formally abolished or never 
 existed. The federal courts exercise an equi- 
 ty jurisdiction as understood in the English 
 courts at the time of the Revolution; Miller 
 Const. 318; independent of local state law; 
 id.; Gordon v. Hobart, 2 Sumn. 401, Fed. 
 Cas. No. 5,609 ; and the remedies are not 
 according to state practice but as distinguish- 
 ed and defined in that country from which we 
 derive our knowledge of those principles ; 
 Robinson v. Campbell, 3 Wheat. (U. S.) 212, 
 4 L. Ed. 372; whether the state courts in 
 the district are courts of equity or not ; Lor- 
 mau v. Clarke, 2 McLean, 568, Fed. Cas. No. 
 8,516; Gaines v. Relf, 15 Pet. (U. S.) 9, 10 
 L. Ed. 642 ; Bennett v. Butterworth, 11 How. 
 (U. S.) 669, 13 L. Ed. 859. 
 
 In English Law. Formerly the highest 
 court of judicature next to parliament. Pri- 
 or to the judicature acts it was the superior 
 court of chancery, called distinctively "The 
 High Court of Chancery," and consisted of 
 six separate tribunals, viz.: the court of the 
 lord high chancellor of Great Britain ; the 
 court of the master of the rolls, or keeper of 
 the records in chancery ; the court of appeal 
 in chancery, the three separate courts of the 
 vice-chancellors. 
 
 The jurisdiction of this court was four- 
 fold. 
 
 The common-law or ordinary jurisdiction. 
 By virtue of this the lord-chancellor was a 
 privy councillor and prolocutor of the house 
 of lords. The writs for a new parliament is- 
 sued from this department. The Petty Bag 
 Office was in this jurisdiction. It was a com- 
 mon-law court of record, in which pleas of 
 scire facias to repeal letters-patent were ex- 
 hibited, and many other matters were deter- 
 mined, and whence all original writs issued. 
 See 11 & 12 Vict. c. 94; 12 & 13 Vict. c. 109. 
 
 The statutory jurisdiction included the 
 power which the lord-chancellor exercised 
 under the habeas corpus act, and by which 
 he inquired into charitable uses, but did not 
 include the equitable jurisdiction. 
 
 The specially delegated jurisdiction includ- 
 ed the exclusive authority which the lord- 
 chancellor and lords justices of appeal had 
 over the persons and property of idiots and 
 lunatics. 
 
 The equity or extraordinary jurisdiction 
 was either assistant or auxiliary to the com- 
 mon law, including discovery for the promo- 
 tion of substantial justice at the common 
 law, preservation of testimony of persons 
 not litigants relating to suits or questions at 
 law, removal of improper impediments and 
 prevention of unconscientious defences at 
 common law, giving effect to and relieving
 
 COURT OF CHANCERY 
 
 699 
 
 COURT OF CHIVALRY 
 
 from the consequences of common-law judg- 
 ments ; concurrent with the common law, in- 
 cluding the remedial correction of fraud, the 
 prevention of fraud by injunction, accident, 
 mistake, account, dower, interpleader, the de- 
 livery up of documents and specific chattels, 
 the specific performance of agreement 
 exclusive, relating to trusts, infancy, the 
 equitable rights of wives, legal and equitable 
 mortgages, the assignment of choses in ac- 
 tion, partition, the appointment of receivers, 
 charities, or public trusts. Whart. Law Diet 
 
 By the Judicature Acts (1ST."] and 1875) this 
 court was merged in the High Court of Jus- 
 tice. See Courts of England). 
 
 The inferior courts of chancery are the 
 courts of the Palatine Counties (Lancaster 
 and Durham), the courts of the Two Univer- 
 sities, the lord-mayor's courts in the city uf 
 London, and the court of chancery in the 
 Isle of Man. See 18 & 19 Vict. c. 48, and the 
 titles of these various courts. See Story, 
 Eq. Jur. ; Dan. Ch. l'r. ; Spence, Eq. Jur. ; 1 
 Iloldsw. Hist. E. L. 194; Spence, 2 Sel. Es- 
 says in Anglo-Amer. L. H. 219; Courts of 
 Equity; Equity; Cancellabius. 
 
 COURT OF THE CHIEF JUSTICE IN 
 EYRE. The highest of the courts of the for- 
 est, held every three years, by the chief jus- 
 tice, to inquire of purprestures or encroach- 
 ments, assarts, or cultivation of forest land, 
 claims to franchises, parks, warrens, and 
 vineyards in the forest, as well as claims 
 of the hundred, claims to the goods of fel- 
 ons found in the forest, and any other civil 
 questions that might arise within the forest 
 limits. But it had no criminal jurisdiction, 
 except of offences against the forest laws. In 
 the exercise of this, he passed sentences up- 
 on offenders convicted by the verderers in 
 Swanimote (see Court of Swanimote) and 
 performed all the duties of a justice in eyre 
 (g. v.). It was called also the court of jus- 
 tice seat. Inderwick, King's Peace. See For- 
 est Laws; Courts of the Forest. Since 
 the Restoration the forest laws have fallen 
 into disuse. The office was abolished in 1S17. 
 
 COURT OF CHIVALRY. An ancient mili- 
 tary court, possessing both civil and crim- 
 inal jurisdiction touching matters of anus 
 and deeds of war. It was held by the con- 
 stable of England and after that office re- 
 verted to the crown in the time of Henry 
 VIII., by the earl-marshal. Davis, Mil. Law 
 13. It had cognizance, by statute 13 Ric. II. 
 c. 2, "of contracts and other matters touch- 
 ing deeds of arms and war, as well out of 
 the realm as within it." This jurisdiction 
 was of importance while the English kiugs 
 held territories in France. 
 
 As a court of criminal jurisdiction, it had 
 jurisdiction over "pleas of life and member 
 arising in matters of arms and deeds of war, 
 as well out of thft realm as within it" It 
 was curia militaris. 
 
 It was not a court of record and could 
 neither fine nor Imprison; 7 Mud. 137 
 (where it was held to have still survived with 
 doubtful and trifling jurisdiction). It is 
 said to have fallen entirely into disuse; 3 
 Bla. Com. 68. The last trial before a Court 
 of Chivalry was that of Lord Audeley, in 
 1497, but the trial of the Earl of Warwick In 
 1 199 took place before the Court of the 
 High Steward. Ilarcourt, The Steward and 
 Trial of Peers. 
 
 COURTS CHRISTIAN. Ecclesiastical 
 courts, which see. 
 
 COURTS OF THE CINQUE PORTS. 
 Courts of limited local Jurisdiction, formerly 
 held before the mayor and jurats (aldermen) 
 of the Cinque Ports. From the earliest times 
 they had the right to hold pleas and the right 
 to wreck, and were always exempt from the 
 jurisdiction of the admiralty. A writ of er- 
 ror lay to the lord-warden in his Court of 
 Shepway, and from this court to the King's 
 Bench. 
 
 In 1S50 when the general civil jur 
 tion of the lord-warden was abolished, his 
 admiralty jurisdiction was retained An ap- 
 peal lies to the lord-warden in admiralty 
 causes from the County Courts within his 
 jurisdiction. Their jurisdiction was not af- 
 fected by the Judicature Act of 1873. The 
 regular sitting place was in the aisle of St. 
 James' Church, Dover, but the judge now 
 often sits at the Royal Courts of Justice; 
 See 1 Holdsw. Hist E. L. 305; 3 Bla 
 79: 2 Steph. Com. 499. This jurisdiction is 
 said to present the type and original of all 
 the admiralty and maritime courts; 1 
 Iloldsw. Hist. E. L 305. 
 
 COURT OF CLAIMS. See United States 
 Courts. 
 
 COURT OF THE CLERK OF THE MAR- 
 KET. A tribunal incident to the market 
 held in the suburbs of the king's court. The 
 clericu8 mercati hospitii regis was the in- 
 cumbent of an honorable office pertinent to 
 the ancient custom of holding such markets. 
 The clerk in early times witnessed verbal 
 contracts; later he adjudicated on prn 
 corn, bread, and wine and other commodities 
 as fixed by the justices of the peace; inquir- 
 ed as to the correctness of weights and meas- 
 ures in every city, town, or borough, subject 
 to appeal to the lord high steward, who 
 could tine him for extortion and send him to 
 the tower for a third offence. The clerk also 
 measured land in case of dispute, and he 
 had power to send bakers, brewers, and oth- 
 ers to the pillory for unlawful dealings. See 
 Inderwick. King's Peace 104. 
 
 The jurisdiction over weights and meas- 
 ures formerly exercised was taken from him 
 by stat. 5 & 6 Will. IV. c. 03; 9 M. & W. 747; 
 ph. Com. 323. 
 
 COURT OF COMMERCE. See Cnited 
 States Courts.
 
 COURT OF COMMISSIONERS 
 
 700 
 
 COURT OF COMMON PLEAS 
 
 COURT OF COMMISSIONERS OF SEW- 
 ERS. See Commissioners of Sewers. 
 
 COURT OF COMMON PLEAS. In Ameri- 
 can Law. A court of original and general 
 jurisdiction for the trial of issues of fact 
 and law according to the principles of the 
 common law. 
 
 Courts of this name axist in some of the 
 states of the United States, and frequently 
 have a criminal as well as civil jurisdiction. 
 They are, in general, courts of record, being 
 expressly made so by statute in Pennsyl- 
 vania, April 14, 1834, § 18. In Pennsylvania 
 they exercise an equity jurisdiction also, as 
 well as that at common law. Courts of sub- 
 stantially similar powers to those indicated 
 in the definition exist in all the states, un- 
 der various names. 
 
 In English Law. Formerly one of the 
 three superior courts of common law at 
 Westminster. 
 
 This court, which is sometimes called, also, Ban- 
 cus Communis, Bancus, and Common Bench, was 
 a branch of the curia regis. At the end of John's 
 reign there was a separation between the court 
 which sat at a certain place to hear common pleas 
 and the court which followed the king with juris- 
 diction both over common pleas and pleas of the 
 crown. There were not as yet two distinct bodies 
 of judges. There is a reported case in 1237 which 
 shows that the distinction was well recognized. In 
 1272 there was a chief justice of the common pleas, 
 and from that date it may be said that the separa- 
 tion was complete. The common pleas was inferior 
 to the court which followed the king, since error 
 lay from It to his court. Magna Carta provided 
 that it should sit at some fixed place, which was 
 usually Westminster. 1 Holdsw. Hist. E. L. 74. 
 
 The establishment of this court at Westminster, 
 and the consequent construction of the Inns of 
 Court and gathering together of the common-law 
 lawyers, enabled the law itself to withstand the 
 attacks of the canonists and civilians. It derived its 
 name from the fact that the causes of common 
 people were heard there. It had exclusive jurisdic- 
 tion of real actions as long as those actions were in 
 use, and had also an extensive and, for a long time, 
 exclusive jurisdiction of all actions between subjects.. 
 This latter jurisdiction, however, was gradually en- 
 croached upon by the king's bench and exchequer, 
 with which it afterwards had a concurrent juris- 
 diction in many matters. Formerly none but Ser- 
 jeants at law were admitted to practise before this 
 court in oanc. See Seejeants-at-Law. Its judges 
 were always serjeants-at-law. 
 
 It consisted of a chief justice and four 
 puisne or associate justices. 
 
 It had a civil, common-law jurisdiction, 
 concurrent with the king's bench and ex- 
 chequer, of personal actions and actions of 
 ejectment, and a peculiar or exclusive juris- 
 diction of real actions, actions under the 
 Railway and Canal TraflBc Act, 17 & 18 Vict. 
 c. 31, the registration of judgments, annui- 
 ties, etc., 1 & 2 Vict. c. 110 ; 2 & 3 Vict. c. 11 ; 
 3 & 4 Vict. c. 82; 18 Vict. c. 15; respecting 
 fees for conveyances under 3 & 4 Will. IV. 
 c. 74 ; the examination of married women 
 concerning their conveyances ; 11 & 12 Vict, 
 c. 70 ; 17 & 18 Vict. c. 75 ; 19 & 20 Vict. c. 
 108, § 73 ; and of appeals from the revising 
 barristers' court ; 6 & 7 Vict C. 18. Whart. 
 Law Diet. 
 
 See Bill of Middlesex. 
 
 Appeals formerly lay from this court to 
 the King's Bench ; and by statutes 11 Geo. 
 IV. and 1 Will. IV. c. 70, writs of error 
 were afterwards taken to the King's Bench 
 and Exchequer Chamber, from whose judg- 
 ment an appeal lay to the House of Lords. 
 3 Bla. Com. 40. 
 
 Its jurisdiction has been transferred to 
 the High Court of Justice. See Courts of 
 England. 
 
 COURTS OF CONSCIENCE. See Courts 
 of Requests. 
 
 COURT FOR CONSIDERATION OF 
 CROWN CASES RESERVED. A court es- 
 tablished by' stat. 11 & 12 Vict. c. 78, com- 
 posed of such of the judges of the superior 
 courts of Westminster as were able to attend, 
 for the consideration of questions of law re- 
 served by any judge in a court of oyer and 
 terminer, gaol delivery, or quarter sessions, 
 before which a prisoner had been found 
 guilty by verdict. 4 Steph. Com. 442. The 
 trial judge was empowered to "state a case" 
 for the opinion of that court. He could not 
 be compelled to do so, and only a question 
 of law could be raised. If the court consid- 
 ered that the point had been wrongly de- 
 cided at the trial, the conviction would be 
 quashed. Prior to this act a judge who had 
 a doubt as to the correctness of his opinion 
 in a criminal trial would sentence the pris- 
 oner, but would suspend punishment until 
 he could consult his brother judges or Ser- 
 jeants. By Act of 1907, the Court of Crim- 
 inal Appeal was created and the Court for 
 Crown Cases Reserved was abolished. 
 
 COURT, CONSISTORY. See Consistory 
 Court. 
 
 COURT OF CONVOCATION. A convoca- 
 tion or ecclesiastical synod, which is in the 
 nature of an ecclesiastical parliament. 
 
 There is one for each province. They are com- 
 posed respectively of the archbishop, all the bishops, 
 deans, and archdeacons of their province, with one 
 proctor, or representative, from each chapter, and, 
 in the province of Canterbury, two proctors for the 
 beneficed parochial clergy in each diocese, while in 
 the province of York there are two proctors for 
 each archdeaconry. In York the convocation con- 
 sists of only one house ; but in Canterbury there 
 are two houses, of which the archbishop and bishops 
 form the upper house, and the lower consists of the 
 remaining members of the convocation. In this 
 house a prolocutor, performing the duty of pres- 
 ident, is elected. These assemblies meet at the 
 time appointed in the queen's writ. The convoca- 
 tion has long been summoned pro forma only, but 
 is still, in fact, summoned before the meeting of 
 every new parliament, and adjourns immediately 
 afterwards, without proceeding to the dispatch of 
 any business. 
 
 The purpose of the convocation is stated to be the 
 enactment of canon law, subject to the license and 
 authority of the sovereign, and consulting on eccle- 
 siastical matters. 
 
 In their judicial capacity, their jurisdic- 
 tion extends to matters of heresy, schisms, 
 and other mere spiritual or ecclesiastical 
 causes, — an appeal lying from their judicial 
 proceedings to the king in council, by stat. 
 2 & 3 Will. IV. C. 92.
 
 COURT OF CONVOCATION 
 
 701 
 
 COURT OF DELEGATES 
 
 But there is a question whether at any 
 time Convocation ever acted as a court 
 There is some evidence to show that in the 
 14th and 15th centuries persons accused of 
 heresy were brought before Convocation by 
 the bishop, but the members did not vote on 
 such trials, being probably rather in the na- 
 ture of a body of assessors to the arch- 
 bishop. Convocation exercises no jurisdic- 
 tion at the present day ; 1 Holdsw. Hist. E. 
 L. 373. 
 
 Cowell ; Bac. Abr. Ecclesiastical Courts, 
 A, 1; 1 Bla. Com. 279; 2 Steph. Com. 525, 
 6G8; 2 Burn, Eccl. Law, 18. 
 
 COURT OF THE CORONER. A court the 
 chief duty of which was to inquire, when 
 any one dies in prison, or comes to a violent 
 or sudden death, by what manner he came 
 
 to his end; 4 Steph. Com. 323; 4 Bla. Com. 
 
 274; now generally known as an inquest. 
 
 See Coronee. 
 
 COURTS OF THE COUNTIES PALATINE. 
 
 In the county palatine of Durham there 
 was a Central Court of Pleas, a body of jus- 
 tices who sat by virtue of commissions of as- 
 size, oyer and terminer and gaol delivery. 
 The judges were often the same persons as 
 those who sat in the royal courts. The bish- 
 op's council was a court of appeal and had 
 original jurisdiction. The bishop had his 
 Chancery. In 1536 an act was passed by 
 which the independent judicial system was 
 made to depend directly upon the king. 
 
 In the county palatine of Lancaster, the 
 courts were a Court of Common Pleas, jus- 
 tices of assize, gaol delivery, oyer and ter- 
 miner and of the peace; a Chancery Court 
 presided over by the Vice-Chancellor ; and a 
 Court of Duchy Chamber, presided over by 
 the Chancellor of the duchy, which sat at 
 Westminster and heard appeals from the 
 Chancery Court. It has ceased to exist 
 The Chancellor of the Duchy is no longer a 
 judicial officer. The Act of 1536 (supra) 
 extended to Lancaster and also to Chester. 
 
 In the county palatine of Chester, a jus- 
 tice held a Court of Pleas for the Crown 
 and Common Pleas. The Lord Chancellor 
 or Lord Keeper, by act in 1536, could ap- 
 point justices of the peace and gaol delivery 
 for Chester and Wales. The chamberlain 
 of Chester, assisted by the vice-chamberlain, 
 exercised the equitable and common-law ju- 
 risdiction of the Chancery and of a Court of 
 Exchequer. The palatinate jurisdiction of 
 Chester and Wales ended in 1S30. Six coun- 
 ties in Wales were created in 12S4 and or- 
 ganized on the English model ; other coun- 
 ties in Wales were under the Lords March- 
 ers. 
 
 For the existing courts, see Courts of 
 England; County Palatine; 1 Holdsw. 
 Hist. E. L. 47; 1 Steph. Hist. C. L. 138; 
 Coke, 4 Inst 239 ; 1 Harg. L. Tr. 378. 
 
 COURT OF DELEGATES. A court of ap- 
 peal for all ecclesiastical cases and called 
 
 the High Court of Delegates. 25 Henry VIII. 
 c. 19; repealed, 1 & 2 Phil. & Mary, c. 8; re- 
 vived, 1 Eliz. c. 1. The crown could issue a 
 Commission of Review and rehear the a 
 It was held by commissioners appointed un- 
 der the Great Seal. It was therefore a shift- 
 ing body, which could not establish ge 
 rules of procedure. It was usuall; 
 of junior civilians. By 2 & 3 Will. IV. 
 its jurisdiction was transferred to the Privy 
 Council. 1 Holdsw. Hist. E. L. 373. 
 
 COURT FOR DIVORCE AND MATRI- 
 MONIAL CAUSES. In English Law. A 
 court which had the jurisdiction formerly 
 exercised by the ecclesiastical courts in re- 
 spect of divorces a mensa et thoro, suits of 
 nullity of marriage, suits of jactitation of 
 marriage, suits for restitution of conjugal 
 rights, and all suits, causes, and ma 
 matrimonial. 
 
 It consisted of the lord chancellor and the 
 justices of the queen's bench, the common 
 pleas, the exchequer, and the judge of the 
 court of probate, who was entitled judge or- 
 dinary. 
 
 The judge ordinary exercised all the pow- 
 ers of the court, except petitions for dissolv- 
 ing or annulling marriages and applications 
 for new trials of matters of fact, hills of ex- 
 ception, special verdict and special cases, 
 for hearing which excepted cases he must 
 be joined by two of the other judges. Pro- 
 vision was made for his absence by authoriz- 
 ing the lord chancellor to appoint one of cer- 
 tain judicial persons to act in such absence. 
 Juries were summoned to try matters of 
 fact, and such trials were conducted in the 
 same manner as jury trials at common law. 
 It is now merged in the High Court of Jus- 
 tice. See Courts of England. 
 
 COURT OF THE DUCHY OF LANCAS- 
 TER. A court of special jurisdiction, which 
 has jurisdiction of all matters of equity re- 
 lating to lands holden of the king in right 
 of the duchy of Lancaster. See Courts of 
 the Counties Palatine. 
 
 COURT OF THE EARL MARSHAL. In 
 
 the reign of William the Conqueror the mar- 
 shal was next in rank to the constable, in 
 command of the army. When the constable's 
 office ceased, his duties devolved upon the 
 earl marshal. The military Court of the 
 Constable came to be known as the Mar- 
 shal's Court, or, in its modern form, Court- 
 Mavtial. Aside from its criminal jurisdic- 
 tion, it had much to do with questions re- 
 lating to fiefs and military tenures, though 
 not to property rights involved therein. The 
 earl marshal is now the head of the Heralds' 
 College. Davis, Mil. Laws of D. S. 14. See 
 Hale, Hist. C. L. 36; Grose. Mil. Aniiq. See 
 Court of Chivalry; Courts-Martial; Con- 
 stable of England. 
 
 COURTS OF ENGLAND. The Judicature 
 Acts (in force November 2. 1875) created 
 the Supreme Court of Judicature. It con-
 
 COURTS OF ENGLAND 
 
 702 
 
 COURTS OF ENGLAND 
 
 sists of the High Court of Justice and the 
 Court of Appeal, both of which are superior 
 courts of record. In itself it performs no 
 judicial function. 
 
 To the High Court of Justice was trans- 
 ferred every jurisdiction formerly vested in 
 the High Court of Chancery, the Queen's 
 Bench, and the Common Pleas at Westmins- 
 ter, the Exchequer as a court of revenue as 
 well as a common-law court; the High Court 
 of Admiralty, the Court of Probate, the 
 Court for Divorce and Matrimonial Causes, 
 the Court of Common Pleas at Lancaster, 
 the Court of Pleas at Durham, the Courts 
 created by Commissioners of Assize, of Oyer 
 and Terminer, and of Gaol Delivery, or any 
 of such Commissioners, and, by Act of 18S3, 
 the jurisdiction of the London Court of 
 Bankruptcy. 
 
 To the Court of Appeal were transferred 
 all jurisdiction and powers of the Court of 
 Appeal in Chancery, the Court of Appeal in 
 Chancery of the County Palatine of Lan- 
 caster, the Court of the Lord Warden of the 
 Stannaries, the Court of Exchequer Cham- 
 ber, the Judicial Committee of the Privy 
 Council upon appeal from any judgment or 
 order of the High Court of Admiralty, and 
 many other minor appellate jurisdictions. 
 
 The High Court of Justice now consists 
 of three divisions: The King's Bench Divi- 
 sion, the Chancery Division, and the Pro- 
 bate, Divorce and Admiralty Division. By 
 the original Judicature Act each of the su- 
 perior courts of common law was made a 
 separate division of the High Court of Jus- 
 tice, but by an Order in Council, December 
 16, 1880, the Common Pleas and Exchequer 
 Divisions were merged in the King's Bench 
 Division, and the offices of Lord Chief Jus- 
 tice of the Common Pleas Division and Lord 
 Chief Baron of the Exchequer Division were 
 abolished. 
 
 The courts of law give any relief which 
 the Court of Chancery could formerly have 
 given. Law and equity are now adminis- 
 tered concurrently. See (1887) 12 App. Cas. 
 308. 
 
 The King's Bench Division. The Lord 
 Chief Justice of England is the President, 
 nominated by the Prime Minister; there are 
 seventeen puisne judges appointed on the 
 recommendation of the Lord Chancellor. 
 They hear cases in London or at the assizes 
 throughout England and Wales. At the 
 commencement of each sitting, one judge is 
 appointed to hear causes in London and one 
 in Liverpool. They are assisted by nine 
 Masters who have power to transact all 
 intei-locutory and much other business, by 
 District Registrars in most of the large pro- 
 vincial towns and by Official Referees. It 
 has the bankruptcy jurisdiction formerly 
 vested in the London Court of Bankruptcy, 
 exercised by one of the judges called the 
 Judge in Bankruptcy. 
 
 The judges of this division frequently sit 
 as a Divisional Court, consisting of two or 
 
 more judges. Any number of such courts 
 may sit at the same time. In civil matters 
 its jurisdiction is almost entirely appellate. 
 It deals with appeals from Revising Barris- 
 ters, from County Courts ' in Bankruptcy, 
 and from certain inferior courts ; with spe- 
 cial cases stated by the courts of petty ses- 
 sions and quarter sessions in civil matters, 
 and by the Railway Commissioners ; appeals 
 from the Mayor's Court, London, the Salford 
 Hundred Court, the V. C. Court of Oxford, 
 and in a few cases of appeals from a judge 
 of the High Court in Chambers. On the 
 crown side it deals with indictments and 
 criminal informations, and in civil proceed- 
 ings with mandamus, habeas corpus, certi- 
 orari, prohibitions, informations in the na- 
 ture of quo warranto, attachments for con- 
 tempt of court and petitions of right 
 
 The Chancery Division consists of the 
 Lord Chancellor, who is President, and six 
 puisne judges; the latter are divided into 
 three groups of two each. The work con- 
 sists chiefly of equity business ; it, however, 
 administers law as well as equity, but it 
 tries no cases with a jury. It deals with 
 administering the estates of deceased per- 
 sons, partnership, mortgages, charitable and 
 private trusts, infants, and other heads of 
 equitable jurisdiction. 
 
 The Probate, Divorce and Admiralty Divi- 
 sion consist of the President and one puisne 
 judge. Probate matters consist of the pro- 
 bate of wills, but their interpretations and 
 the administrations of the estates are in the 
 Chancery Division. In admiralty matters it 
 hears appeals from the County Courts. 
 
 The Court of Appeal consists of the Mas- 
 ter of the Rolls and five Lords Justices of 
 Appeal, with the occasional assistance of the 
 Lord Chancellor, any ex-Lord Chancellor, 
 the Chief Justice of England and the Presi- 
 dent of the P., D. & A. Division. It sits in 
 two divisions ; the Master of the Rolls pre- 
 sides in the first and the senior Lord Justice 
 in the second. It has the jurisdiction for- 
 merly exercised by the Lord Chancellor and 
 by the Court of Appeal in Chancery, includ- 
 ing bankruptcy, and by the Exchequer Cham- 
 ber, and in admiralty and lunacy, etc. 
 
 The House of Lords is not a part of the 
 Supreme Court of Judicature. When sitting 
 as the supreme appellate court, it is usually 
 composed of the Lord Chancellor, the ex- 
 Lord Chancellor, if any, and the six Lords 
 of Appeal in Ordinary; peers who have held 
 high judicial office are entitled to sit. At 
 least three judges are required to form a 
 quorum. It may summon the judges to as- 
 sist in their deliberations and give their 
 opinion on any point of law. Lay peers 
 have, strictly speaking, a right to vote, but, 
 since 1883, have never exercised that right. 
 It has no original jurisdiction in ordinary 
 civil actions ; an appeal lies to it against any 
 judgment or order of the Court of Appeal. 
 
 Judicial Committee of the Privy Council, 
 as created in 1S33, is a court of final appeal
 
 COURTS OF ENGLAND 
 
 703 
 
 COURTS OF ENGLAND 
 
 from the ecclesiastical courts, the courts of 
 India, the colonies, the Channel Islands and 
 the Isle of Man. It is held by the Lord 
 Chancellor, the six Lords of appeal in Or- 
 dinary, if Privy Councillors, and such other 
 members of the Privy Council as have held 
 high judicial office in the United Kingdom 
 or the colonics. 
 
 There are other courts with local or spe- 
 cial jurisdiction which are superior courts 
 of record but are not part of the Supreme 
 Court of Judicature. 
 
 The Chancery Court of the County Pala- 
 tine of Lancaster is held by the V. C. of the 
 Duchy and County Palatine of Lancaster at 
 Liverpool and Manchester. Within the i 
 palatine it has the jurisdiction of the Chan- 
 cery Division ; it is essential that the par- 
 ties to actions should be within the county 
 palatine. 
 
 The Chancery Court of the Comity Pala- 
 tine of Durham is held by the Chancellor of 
 the County Palatine at Durham. Either the 
 parties to a suit must reside in the county 
 palatine or the property be situate there. Its 
 jurisdiction is unlimited in amount and is 
 similar to that of the Chancery Division. 
 
 The Court of Railway and Canal Commis- 
 sioners is held by a judge of the High Court 
 and two laymen appointed by the crown, on 
 the nomination of the Board of Trade, one 
 of whom must be an expert in railway mat- 
 ters. The judge alone decides points of law. 
 It deals with transportation facilities, pref- 
 erences, rates, etc. An appeal lies to the 
 Court of Appeal. 
 
 The Inferior Courts of Record. The most 
 important are the County Courts (see that 
 title). There are nineteen borough courts, 
 whose jurisdiction is generally limited to 
 causes of action arising in the borough; in 
 most of them the Recorder is the judge. The 
 most prominent of them are: The Mayor's 
 Court, London; the City of London Court; 
 the Liverpool Court of Passage; the Salford 
 Hundred Court; the Courts of Tolzey and 
 Pie Poudre, Bristol. From the Court of 
 Passage an appeal lies to the Court Qf Ap- 
 peal ; from the others to the King's Bench 
 Division. 
 
 The University Courts are analogous to the 
 borough courts, anil claim exclusive jurisdic- 
 tion over the members of the Universities. 
 See Chancellors' Courts of the Two Uni- 
 
 VERSITIKS. 
 
 The Sheriff's Court is held by the under- 
 sheriff with a jury of twelve. 
 
 A Coroner's Court is held in every county. 
 every county borough and in borough having 
 a court of quarter sessions. 
 
 Inferior Courts A T o* of Record. The Revis- 
 ing Barrister's Court annually revises the 
 lists of parliamentary voters, of burgesses 
 and county electors. It is held by one bar- 
 rister. An appeal lies, in certain cases, on a 
 point of law, to the King's Bench -Divisional 
 Court, and from there, but only on special 
 leave, to the Court of AppeaL 
 
 The Courts of Petty Sessions, which may 
 be held by a single justice, have jurisdiction 
 in disputes as to contracts between master 
 and servant, or between members of friendly 
 societies, affiliation orders and in certain 
 matrimonial matters. 
 
 The ordinary criminal courts are: Courts 
 of Petty Session; Courts of I in; 
 
 the Assizes; the Central Criminal Court; the 
 King's Bench Division: and the Court of 
 Criminal AppeaL Courts of Borough Quar- 
 ter Sessions arc now held in 131 of the larger 
 Cities and towns, having the same jurisdic- 
 tion as the Quarter Sessions in a county. 
 The judge of each is called a Recorder (q. v.). 
 Peers Charged with treason, felony, or mis- 
 prision me tried either in the House of Lords 
 or in the Court of the Lord High Steward. 
 
 Appeals in criminal cases from the Chan- 
 nel Islands, the Isle of Man, the Empire of 
 India and the colonies are heard by the Judi- 
 cial Committee of the Privy Council. 
 
 Courts of Petty Sessions are held by Jus- 
 tices of the Peace appointed by the crown 
 on the recommendation of the Lord Lieuten- 
 ant of the county. There is no limit to the 
 number In any county. They are unpaid. 
 They elect their own chairmen. They hold 
 office for life, but may be removed by the 
 Lord Chancellor for misconduct They are 
 appointed for a whole county, but ordinarily 
 act in the sessional division in or near winch 
 they reside. Any two or more may iu their 
 own division form a Capital Court of Petty 
 Session. An appeal lies to the Court of 
 Quarter Session or the King's Pencil Divi- 
 sion, the latter only on a point of law. 
 Courts of Quarter Sessions are in 
 Courts of Record. All the justices of the 
 county are justices of this court for their 
 county ; two constitute a quorum. They try 
 by jury prisoners committed for trial by the 
 Courts of the Petty Sessions for the county. 
 In boroughs there is a great variety of such 
 courts under their various charters. The 
 judge of a borough court is called a Record- 
 er. Appeals from the Petty Sessions are 
 heard without a jury; the cases are reheard. 
 The King's Bench Division may review on 
 certiorari any proceeding of a Court of 
 Quarter Sessions. 
 
 The Assizes are held by the judges of the 
 High Court at the capital of each county and 
 other assize towns. There are eight circuits. 
 See Assize. 
 
 The Central Criminal Court was created in 
 1834. It is the Court of Assize and Quarter 
 Session for the City of London and its Liber- 
 ties, and the Court of Assize for the Coun- 
 ties of London and Middlesex and certain 
 parts of Essex, Kent and Surrey. It sits at 
 least twelve times a year. Its Judges include 
 the Lord Chancellor, the Judges of the High 
 Court, the Lord Mayor. Aldermen, Recorder 
 and Common Serjeant of the City of London, 
 and tWO Commissioners. 
 
 The Kino's Bench Division is the successor 
 of the Assize Court for the ancient county of
 
 COURTS OF ENGLAND 
 
 704 
 
 COURTS OF ENGLAND 
 
 Middlesex, which could try on indictment 
 any treason, felony, or misdemeanor com- 
 mitted therein, and it still has the same pow- 
 er, though rarely exercised. It can try any 
 misdemeanor committed in any part of Eng- 
 land, for which a criminal information has 
 been filed by an officer of the crown, and any 
 crimes committed out of England by public 
 officials of colonies, or by officials of the 
 crown in India. Any indictment from inferi- 
 or courts may be removed by certiorari and 
 tried there either "at bar" (by three judges), 
 or at nisi prius (by one), before a jury of 
 the county where the crime was committed. 
 But this can be done only on the ground that 
 an impartial trial could not be had in the 
 court below, or that some difficult question 
 of law is involved, or a special jury, or a 
 view of certain premises, is necessary to a 
 satisfactory trial. It has general superin- 
 tendence over all inferior courts of criminal 
 jurisdiction and can review any proceedings 
 of a court of quarter sessions on summary 
 jurisdiction or certiorari. Any court of sum- 
 mary jurisdiction may state a case setting 
 forth the facts for the Sing's Bench Division 
 and the latter may order justices of the pet- 
 ty sessions to state such a case. A court of 
 quarter sessions may state a case for it on 
 a point of law arising in some matter that 
 has come before it on appeal from a court 
 of petty sessions. 
 
 The Court of Criminal Appeal has juris- 
 diction over all criminal cases tried at Quar- 
 ter Sessions, the Assizes, the Central Crim- 
 inal Court, or in the King's Bench Division. 
 It consists of the Lord Chief Justice of Eng- 
 land and the other judges of the King's 
 Bench Division. Not less than three judges 
 must be present and the number must be un- 
 even. An appeal lies to the House of Lords 
 when the Attorney General has certified that 
 a point of law of exceptional public impor- 
 tance is involved. A convicted prisoner has a 
 right of appeal on any question of law or 
 fact, or of mixed law and fact, if he can ob- 
 tain leave of the Court of Criminal Appeal 
 or a certificate from the judge who tried the 
 case that it is a fit case for appeal. By leave 
 of the Court of Criminal Appeal a prisoner 
 can appeal against a sentence passed upon 
 him, but in such case that the court may in- 
 flict a more serious sentence. It may quash a 
 conviction and may enter a verdict of acquit- 
 tal. In a proper case it will hear fresh evi- 
 dence. It cannot grant a new trial. 
 
 The House of Lords may try any one im- 
 peached by the House of Commons for any 
 high crime or misdemeanor; also temporal 
 peers and peeresses accused of high treason, 
 felony or misprision. At such trial it is 
 presided over by a peer as Lord High Stew- 
 ard appointed by the crown, or in the ab- 
 sence of such appointment, by the Lord Chan- 
 cellor. All the members of the House are en- 
 titled to be present and are equally judges 
 of law and fact The judges may be sum- 
 
 moned to give their opinion on any question 
 of law. The "bishops may be present, but 
 may not vote in capital cases. If the House 
 of Lords is not sitting, the accused will be 
 tried in the Court of the Lord High Steward. 
 See that title. 
 
 The above is abridged from Odgers, Com- 
 mon Law. See also Halsbury's Laws of Eng- 
 land, title Courts. 
 
 See County Courts. 
 
 COURT OF EQUITY. A court which ad- 
 ministers justice according to the principles 
 of equity. 
 
 As to the constitution and jurisdiction of 
 such courts, see Court of Chancery. 
 
 Such courts are not, strictly speaking, 
 courts of record except when made so by 
 statute; Yelv. 226; Evans v. Tatem, 9 S. & 
 R. (Pa.) 252, 11 Am. Dec. 717. Their decrees 
 touch the person only; Post v. Neafie, 3 Cai. 
 (N. Y.) 36; but are conclusive between the 
 parties; Coit v. Tracy, 8 Conn. 268, 20 Am. 
 Dec. 110; Van Riper v. Claxton, 9 N. J. Eq. 
 302; Hopkins v. Lee, 6 Wheat. (U. S.) 109, 
 5 L. Ed. 218. See Rice's Heirs v. Lowan, 2 
 Bibb (Ky.) 149. And as to the personalty, 
 their decrees are equal to a judgment; 2 
 Madd. 355 ; 2 Salk. 507; 1 Vern. 214; Post v. 
 Neafie, 3 Cai. (N. Y.) 35; and have prefer- 
 ence according to priority ; 3 P. Wins. 401, 
 n. ; Cas. temp. Talb. 217; 4 Bro. P. C. 287; 
 Thompson v. Brown, 4 Johns. Ch. (N. Y.) 
 638. See Chase, Bla. Com. 843, n. 3. They 
 are admissible in evidence between the par- 
 ties; Pleasants v. Clements, 2 Leigh (Va.) 
 474; Goddard v. Long, 5 Smedes & M. 
 (Miss.) 783; Randall v. Parramore, 1 Fla. 
 409; Whitmore v. Johnson's Heirs, 10 
 Humphr. (Tenn.) 610; and see Landers v. 
 Beauchamp, 8 B. Monr. (Ky.) 493; Ward- 
 law v. Hammond, 9 Rich. (S. C.) 454; when 
 properly authenticated ; Barbour v. Watts, 2 
 A. K. Marsh. (Ky.) 290; and come within 
 the provisions of the constitution for authen- 
 tication of judicial records of the various 
 states for use as evidence in other states; 
 Craig v. Brown, Pet. C. C. 352, Fed. Cas. No. 
 3,328. 
 
 An action may be brought at law on a de- 
 cree of a foreign court of chancery for an 
 ascertained sum; 1 Campb. 253; Burnett v. 
 Wylie, Hempst 197, Fed. Cas. No. 2172a; 
 but not for an unascertained sum ; Post v. 
 Neafie, 3 Cai. (N. Y.) 37, note; but nil deoet 
 or nul tiel record is not to be pleaded to such 
 an action; Evans v. Tatem, 9 S. & R. (Pa.) 
 252, 11 Am. Dec. 717. See Equity ; Court of 
 Chancery. 
 
 COURT OF ERROR. An expression ap- 
 plied especially to the court of exchequer 
 chamber and the house of lords, as taking 
 cognizance of error brought. Moz. & W. 
 Diet. 3 Steph. Com. 333. It is applied in 
 some of the United States to the court of 
 last resort in the state. See Court of Ap- 
 peals.
 
 COURT OF EXCHEQUER 
 
 705 
 
 COURT OF FACULTIES 
 
 COURT OF EXCHEQUER. In English 
 Law. A superior court of record, administer- 
 ing justice in questions of law and revenue. 
 
 It was the lowest in rank of the three superior 
 common-law courts of record, and had jurisdiction 
 originally only of cases of injury to the revenue by 
 withholding or non-payment. The privilege of suing 
 and being sued in this court in personal actions 
 was extended to the king's accountants, and then, 
 by a fiction that the plaintiff was a debtor of the 
 king to all personal actions. See Quo Minus, Writ 
 of. It had formerly an equity jurisdiction, and the 
 cases were heard before the Treasurer, the Chancel- 
 lor of the Exchequer and the Barons. By statute 
 In 1842 this jurisdiction was transferred to the 
 court of chancery. 
 
 It consisted of one chief and four puisne 
 judges or barons. 
 
 As a court of common law, it adminis- 
 tered redress between subject and subject 
 in all actions whatever, except real actions. 
 
 The appellate jurisdiction from this court 
 was to the judges of the king's bench and 
 common pleas sitting as the court of ex- 
 chequer chamber, and from this latter court 
 to the house of lords; 3 Steph. Com. 338; 3 
 Bla. Com. 44. Its jurisdiction has been 
 transferred to the high court of justice. See 
 Courts of England. 
 
 COURT OF EXCHEQUER CHAMBER. In 
 English Law. A court for the correction and 
 prevention of errors of law in the three su- 
 perior common-law courts of the kingdom. 
 
 A court of exchequer chamber was first erected 
 by statute 31 Edw. III. c. 12, to determine causes 
 upon writs of error from the common-law side of 
 the exchequer court. It consisted of the chancellor, 
 treasurer, and the "justices and other sage persons 
 as to them seemeth." The judges were merely as- 
 sistants. A second court of exchequer chamber 
 was instituted by statute 27 Eliz. c. 8, consisting 
 of the justices of the common pleas and the ex- 
 chequer, or any six of them, which had jurisdic- 
 tion in error of cases in the king's bench. In 
 1830 these courts were abolished and the court of 
 exchequer chamber substituted in their place as an 
 Intermediate court of appeal between the three 
 common-law courts and Parliament. It consisted 
 of the judges of the two courts which had not ren- 
 dered the judgment in the court below. It is now 
 merged in the High Court of Justice. See Courts 
 op England. 
 
 There was an early practice, continuing as 
 late as the 17th century, by which cases of 
 difficulty in either of the three common-law 
 courts might be adjourned to be argued be- 
 fore all the judges and the barons in the 
 exchequer chamber; but the judgment was 
 given in the court in which the proceedings 
 had begun. 1 Holdsw. Hist. E. L. 109. 
 
 COURT OF FACULTIES. A tribunal of 
 the archbishop in England. 
 
 It does not hold pleas in any suits, but 
 creates rights to pews, monuments, and other 
 mortuary matters. It has also various other 
 powers under 25 Hen. VIII. c. 21, in grant- 
 ing licenses, faculties, dispensations, etc., of 
 different descriptions; as, a license to marry, 
 a faculty to erect an organ in a parish 
 church, to level a churchyard, to remove 
 bodies previously buried; and it may also 
 grant dispensations to eat flesh on days pro- 
 Bouv. — 45 
 
 hibited, or to ordain a deacon under age, and 
 the like. The archbishop's office in this 
 tribunal is called magister ad facilitates; Co. 
 4th Inst. 337 ; 2 Chit. Gen. Pr. 5u7. 
 
 It still exists as a registry for marriage 
 licenses. It appoints notaries. 
 
 See Court of Ar< b 
 
 COURT OF FIRST INSTANCE. See 
 
 First Instance. 
 
 COURTS OF THE FOREST. Courts held 
 
 for the enforcement of the forest laws. The 
 lowest of these was the Woodmote, or < 
 of Attachments (<?. v.). The next was the 
 Swainmote (q. t".) . The highest was the 
 Court of the Chief Justice (q. v.). There 
 was also a Survey of Dogs (see Regard) held 
 by the Regarders of the Forest every three 
 years for the lawing of dogs. Inderwick, 
 King's Peace. See Forest Laws. 
 
 COURTS OF FRANCE. Cour de Cassa- 
 tion (from cassar, to reverse, because it only 
 affirms or reverses) is the highest court in 
 France (the Tribunal des Conflits possibly 
 excepted). It is composed of forty-five Con- 
 seillers, with one Premier President and 
 three Presidents de Chambre. Attached to it 
 are sixty lawyers who are both AvouGs and 
 Avocats. 
 
 There are twenty-seven Cours d'Appel, sit- 
 ting in twenty-seven different cities and each 
 having jurisdiction over several departments; 
 also three hundred and fifty-nine district 
 courts of first instance, two hundred and 
 fourteen Tribunals of Commerce, and a large 
 number of Justices of the Peace ; also a cer- 
 tain number of Tradesmen's Courts, Conseils 
 de Prud'hommes. 
 
 Tribunal des Conflits. — This is a juris- 
 dictional court and nothing else. A dispute 
 as to whether a given question shall be dis- 
 posed of by a government department or by 
 the law courts is decided by this court. The 
 Minister of Justice is President of this court, 
 ex officio ; the eight other members are taken 
 from the Conseil d'Etat and the Cour de 
 Cassation. 
 
 COURTS OF THE FRANCHISES. Juris- 
 dictions in the early Norman period which 
 rested upon royal grants — often assumed. 
 Edward I., in 1274, sent out commissioners 
 to enquire by what warrant different laud- 
 owners were exercising their jura regalia. 
 Those showing continued possession since 
 the beginning of Richard I. were allowed to 
 stand — chiefly the less important frani I 
 the exceptions are the palatinate jurisdictions. 
 See Courts of the Coin. mini:. 
 
 There were many varieties of lesser fran- 
 chises, such as those conferred by the old 
 Saxon terms, sac and soc, infangtheft and 
 outfangtheif, view of frankpledge. Some of 
 these franchises were recognized as existing 
 by the County Courts Acts, 1S40-1SSS. 1 
 Holdsw. Hist. E. L. 6L
 
 COURT GEN. QUARTER SESSIONS 706 
 
 COURT OF HUSTINGS 
 
 COURT OF GENERAL QUARTER SES- 
 SIONS OF THE PEACE. In American Law. 
 
 A court of criminal jurisdiction, so-called 
 in many states. 
 
 In English Law. A court of criminal ju- 
 risdiction, in England, held in each county 
 once in every quarter of a year, but in the 
 county of Middlesex twice a month. 4 Steph. 
 Com. 317. When held at other times than 
 quarterly, the sessions are called "general 
 sessions of the peace." 
 
 It is held before two or more justices of 
 the peace, one of whom was a justice of 
 the quorum. 
 
 Edward III. appointed justices of the 
 peace for each county in England and enact- 
 ed that they should meet at least four times 
 a year, and the ordinary meetings of the 
 county court appear soon to have merged in, 
 or been extinguished by, these quarterly 
 meetings of justices which are now known 
 as Quarter Sessions of the Peace. 2 Odgers, 
 C. L. 9G6. See Courts of England. 
 
 COURT OF GREAT SESSIONS IN 
 WALES. A court formerly held in Wales; 
 abolished by 11 Geo. IV. and 1 Will. IV. c. 
 70, and the Welsh judicature incorporated 
 with that of England. 3 Bla. Com. 77; 3 
 Steph. Com. 317, n. 
 
 COURT OF HIGH COMMISSION. An ec- 
 clesiastical court created under the Act of 
 Supremacy, 1 Eliz. c. 1, § 8 (1559). Its du- 
 ties were to enforce the Acts of Supremacy 
 and Uniformity and to deal generally with 
 ecclesiastical offences. It entertained all im- 
 portant causes of doctrine and ritual ; also 
 matters of immorality and misconduct of the 
 clergy and laity and of recusancy and non- 
 conformity. It had concurrent jurisdiction 
 with the ordinary ecclesiastical court. It 
 fell in 1640 and was ,not revived at the Res- 
 toration ; 1 Holdsw. Hist. E. L. 375. 
 
 COURT-HOUSE. The building occupied 
 for the purposes of a court of record. The 
 term may be used of a place temporarily oc- 
 cupied for the sessions of a court, though 
 not the regular court-house ; as, a church 
 used when the court-house was occupied by 
 troops ; Kane v. McCown, 55 Mo. 181 ; and 
 see Hambright v. Brockman, 59 Mo. 52 ; and 
 where the court-house was burned down, 
 sales required by law to be at its door must 
 be held at the ruins of the door ; Waller v. 
 Arnold, 71 111. 350. 
 
 COURT, HUNDRED. See Hundred 
 Court. 
 
 COURT OF HUSTINGS. The county court 
 in the city of London. 
 
 It is held nominally before the lord mayor, 
 recorder, and aldermen ; but the recorder is 
 practically the sole judge. It has an appel- 
 late jurisdiction of causes in the sheriff's 
 court of London. A writ of error lies from 
 the decisions of this court to certain com- 
 missioners (usually five of the judges of the 
 
 superior courts of law), from whose judg- 
 ment a writ of error lies to the house of 
 lords. No merely personal actions can be 
 brought in this court. See 3 Bla. Com. 80, 
 n. ; 3 Steph. Com. 293, n. ; Madox, Hist. 
 Exch. c. 20; Co. 2d Inst. 327. Since the abo- 
 lition of all real and mixed actions except 
 ejectment, the jurisdiction of this court has 
 fallen into comparative desuetude. Pulling 
 on Cust. Lond. 
 
 In American Law. A local court in some 
 parts of Virginia. Smith v. Commonwealth, 
 6 Gratt. 696. 
 
 COURT FOR THE TRIAL OF IMPEACH- 
 MENTS. A tribunal for determining the 
 guilt or innocence of any person impeached. 
 In England, the House of Lords, and in this 
 country, generally, the more select branch of 
 the legislative assembly, constitutes a court 
 for the trial of impeachments. A peer could 
 always be impeached for any crime, and al- 
 though Blackstone lays it down that a com- 
 moner cannot be impeached for a capital of- 
 fence, but only for a high misdemeanor, the 
 opinion seems to have prevailed that he 
 could be impeached for high treason ; 4 Bla. 
 Com. 260; 4 Steph. Com. 299; May, Pari. 
 Prac. c. 23. 
 
 The Commons might impeach any person 
 before the House of Lords. The practice fell 
 into abeyance between 1459 and 1621, and 
 its place was taken by Acts of Attainder. 
 There has been no instance of impeachment 
 since 1805. 1 Holdsw. Hist. E. L. 190. 
 
 COURT FOR THE RELIEF OF INSOL- 
 VENT DEBTORS IN ENGLAND. A court 
 in London only, which received the petitions 
 of insolvent debtors and decided upon the 
 question of granting a discharge. 
 
 It was held by the commissioners of bank- 
 ruptcy ; and its decisions, if in favor of a 
 discharge, were not reversible by any other 
 tribunal. See 3 Steph. Com. 426; 4 id. 287. 
 Abolished by the Bankruptcy Act of 1861. 
 
 COURT OF INQUIRY. In English Law. 
 A court sometimes appointed by the crown 
 to ascertain the propriety of resorting to 
 ulterior proceedings against a party charged 
 before a court-martial. See 2 Steph. Com. 
 590; 1 Coler. Bla. Com. 418, n. ; 2 Brod. & 
 B. 130. Also a court for hearing the com 
 plaints of private soldiers. Moz. & W. Diet. ; 
 Simmons, Cts. Mart. § 341. 
 
 In American Law. A court constituted by 
 authority of the articles of war, invested 
 with the power to examine into the nature of 
 any transaction, accusation, or imputation 
 against any officer or soldier. 
 
 They are not strictly courts, having no 
 power to try and determine guilt or inno- 
 cence. They are rather agencies created by 
 statute to investigate facts and report there- 
 on. They cannot compel the attendance of 
 witnesses nor require them to testify ; Davis, 
 Mil. Law 220. They may be convened by any
 
 COURT OF INQUIRY 
 
 707 
 
 COURT OF KING'S BENCH 
 
 military commander who has power to con- 
 vene a court-martial to try the charge which 
 is to Le inquired into. The Fresident may 
 convene a court of inquiry at any time ; oth- 
 erwise they can be convened only on the ap- 
 plication of the officer or soldier whose con- 
 duct is in question. They are composed of 
 from one to three commissioned officers, with 
 a recorder. They give no opinions unless re- 
 quired to do so. 119th Art. of War. Their 
 proceedings are admitted in evidence by a 
 court-martial, In cases not capital nor ex- 
 tending to the dismissal of an officer, if the 
 oral testimony cannot be obtained ; 121st 
 Art of War. 
 
 A naval court of inquiry may be ordered 
 by the President, Secretary of the Navy, or 
 commander of a fleet or squadron, consisting 
 of not more than three commissioned officers. 
 They "have power to summon witnesses, etc., 
 in the same manner as courts-martial, but 
 they shall only state facts and not give their 
 opinion unless expressly required so to do" 
 in the convening order. The person under 
 inquiry, or his attorney, have a right to 
 cross-examine witnesses (R. S. § 1G24). The 
 Act of February 1G, 1900, provides for sub- 
 poenas to witnesses. See Courts-Martial 
 (naval). 
 
 COURTS OF IRELAND. The Court of 
 Appeal consists of the Lord Chancellor, the 
 Lord Chief Justice, fhe Master of the Rolls, 
 the Lord Chief Baron of the Exchequer and 
 two Lords Justices of Appeal. 
 
 The High Court of Justice. The Chancery 
 Division consists of the Lord Chancellor, the 
 Master of the Rolls, a Judge and a Land 
 Judge. The King's Bench Division consists 
 of the Lord Chief Justice, the Lord Chief 
 Baron, and five judges, one of which is a 
 probate judge and another a judge in ad- 
 miralty and bankruptcy cases. 
 
 There are 33 County Court judges and 
 chairmen of Quarter Sessions in the differ- 
 ent counties. 
 
 COURT OF JUSTICE SEAT. See Court of 
 the Chief Justice in Eyke. 
 
 COURT OF JUSTICIARY. See Courts of 
 Scotland. 
 
 COURT OF KING'S BENCH. The su- 
 preme court of common law in the kingdom, 
 now merged in the High Court of Justice. 
 See Courts of England. 
 
 It was one of the successors of the curia regis 
 and received Its name, it is said, because the king 
 formerly sat In it in person, the style of the court 
 being coram rege ipso (before the king himself). 
 During the reign of a queen it was called the 
 Queen's Bench, and during Cromwell's Protectorate 
 it was called the Upper Bench. Its Jurisdiction 
 was originally confined to the correction of crimes 
 and misdemeanors which amounted to a breach of 
 the peace, including those trespasses which were 
 committed with force (vi et armis), and in the com- 
 mission of which there was, therefore, a breach of 
 the peace. By aid of a fiction of the law (see Court 
 of the Steward and the Marshal; Bill of Mid- 
 dlesex), the uumber of actions which might be al- 
 
 leged to be so committed was gradually Increased, 
 until the jurisdiction extended to all actions on the 
 case, of debt upon statutes or where fraud was al- 
 leged, and, finally, included ail personal actions 
 whatever, and the a 
 
 sit; Arrest; Attachment. It was from its con- 
 stitution, ambulatory and liable to follow the I 
 person, all process in this court being 
 "coram rege ubicunque turn fuel 
 (wherever in England we [the sovereign] shall 
 be i. It was for centuries held at • 
 early as Henry IV.'b reign the king could not pro- 
 nounce Judgment. 
 
 It consisted of a lord chief Justice and 
 four puisne or associate justices, who 
 by virtue of their office, conservators of the 
 peace and supreme coroners of the land. 
 
 It had original criminal jurisdiction ami 
 
 transferred jurisdiction from inferior courts, 
 
 tiorari, where a fair trial could aot be 
 
 had in the inferior court or some dilli<ult 
 
 on of law was likely to arise; a! 
 writ oil error and motion for a new trial. 
 Its civil jurisdiction was original and in er- 
 ror. The former did not exist originally in 
 ordinary civil suits between man and man, 
 but was attained by a fiction that the de- 
 fendant was in the custody of the marshal 
 (supra). The jurisdiction in error was by 
 audita querela, motion for a new trial, and in 
 t of certain errors in the process of the 
 court. Jurisdiction in error belonged a 
 exclusively to the King's Bench. It had su- 
 perintendence over the proper observance of 
 the law by officials and others by means of 
 certain "prerogative writs*': Certiorari, pro- 
 hibition, mandamus, quo warranto, h> 
 corpus, de homini replegiando, maiuprize. the 
 writ de odio et atia (which last three were 
 superseded by habeas corpus); 1 Holdsw. 
 Hist. E. L. 78. 
 
 COURT LANDS. See Demesne. 
 
 COURT LEET. In English Law. A court 
 of record for a particular hundred, lordship, 
 or manor, holden therein before the steward 
 of the leet, for the punishment of petty of- 
 fences and the preservation of the peace. 
 Kitchin, Courts Leet. 
 
 The Sheriffs Tourn (q. v.) was the Grand 
 Court Leet for the county. 
 
 The privilege of holding them was a franchise 
 subsisting in the lord of the manor by prescription 
 or charter, and might be lost by diruse. The court 
 leet had a limited criminal Jurisdiction. For some 
 offences of a lower order, punishment by fines, 
 amerc< ments, or other means might be inflicted. 
 For the higher crimes, they either found indict- 
 ments which were to be tried by the higher courts, 
 or made presentment of the case to such higher 
 tribunals. They also took view of f 
 Among other duties for the keeping of the peace, 
 the court assisted in the election of, or, in some 
 cases, elected certain municipal officers In the bor- 
 ough to which the leet was appended. A court leet 
 is still held in many manors and a few boroughs 
 In England ; Odgers, C. L. 965. 
 
 Powell, Courts Leet; 1 Reeve, Hist. Eng. 
 Law; Inderwick, King's Peace 11; 1 Poll. & 
 Maitl. 568; 4 Steph. Com. 306. 
 
 It was but a specially important moot of 
 the leta, the fraction of the hundred or wap-
 
 COURT LEET 
 
 708 
 
 COURT-MARTIAL 
 
 entabe, alienated into private hands. Vino- 
 gradov, Engl. Soc. in Eleventh Cent. 214. 
 
 COURT OF THE LORD HIGH ADMIR- 
 AL. In the earlier part of the 14th century, 
 the Admiral possessed a disciplinary juris- 
 diction over his fleet. After 1340 it is reason- 
 able to suppose that the Admiral could hold 
 an independent court and administer justice 
 in piracy and other maritime cases. In 1353 
 a case was had before the Admiral and the 
 Council. Four years later there is the ear- 
 liest distinct reference to a Court of Ad- 
 miralty. There were at first several ad- 
 mirals and several courts. From .the early 
 15th century there was one Lord High Ad- 
 miral and one Court of Admiralty. 1 Holdsw. 
 Hist. E. L. 313. The term admiral appears 
 to have been first used in 1300. id. 
 
 COURT OF THE LORD HIGH STEWARD. 
 
 If the House of Lords is not sitting, 'cases of 
 impeachment and temporal peers and peer- 
 esses accused of high treason, felony or mis- 
 prision are tried in the Court of the Lord 
 High Steward. He is appointed for the oc- 
 casion, and is usually the Lord Chancellor. 
 All peers who have a right to sit and vote 
 in Parliament must be summoned. They are 
 the sole judges of fact, and the majority, 
 which must consist of twelve at least, de- 
 cides. The Lord High Steward has a vote, 
 and is judge of all matters of law. 
 
 House op Lords; Courts of England. 
 Trials of peers before it began about 1500. 
 See Harcourt, The Steward and Trial of 
 Peers. 
 
 COURT OF THE LORD HIGH STEWARD 
 OF THE UNIVERSITIES. In English Law. 
 
 A court constituted for the trial of scholars 
 or privileged persons connected with the uni- 
 versity of Oxford or Cambridge who are in- 
 dicted for treason, felony, or mayhem. 
 
 The court consists of the lord high stew- 
 ard, or his deputy nominated by the chan- 
 cellor of the university and approved of by 
 the lord high chancellor of England. The 
 steward issues a precept to the sheriff, who 
 returns a panel of eighteen freeholders, and 
 another to the university beadle, who return 
 a panel of eighteen matriculated laymen. 
 From these panels a jury de medietate is se- 
 lected, before whom the cause is tried. An 
 Indictment must first have been found by a 
 grand jury, and cognizance claimed thereof 
 at the first day. 3 Bla. Com. 83 ; 4 id. 277 ; 
 1 Steph. Com. 67 ; 3 id. 341 ; 4 id. 261. See 
 Chancellors' Courts of the Universities. 
 
 COURT OF MAGISTRATES AND FREE- 
 HOLDERS. A court in South Carolina for 
 the trial of slaves and free persons of color 
 for criminal offences. Now abolished. 
 
 COURT OF THE MARSHALSEA. See 
 
 Court of the Steward and the Marshal. 
 
 COURT-MARTIAL. A military or naval 
 tribunal, which has jurisdiction of offences 
 
 against the laws of the service, military or 
 naval, in which the offender is engaged. 
 
 Courts-martial have some of the functions of the 
 Court of Chivalry, which title see. They exist and 
 have their jurisdiction by virtue of the military 
 law, the court being constituted and empowered to 
 act in each instance by authority from a command- 
 ing officer. The general principles applicable to 
 courts-martial in the army and navy are essentially 
 the same. Courts-martial for the regulation of the 
 militia are held in the various states under local 
 statutes, which resemble in their main features those 
 provided for in the army of the United States; and 
 when in actual service the militia, like the regular 
 troops, are subject to courts-martial, of which a 
 majority of members must be militia officers (Act 
 of May 27, 1908). Where all the members of a 
 court-martial convened to try a volunteer officer 
 are officers of the regular army, the court is ille- 
 gal; McClaughry v. Deming, 186 U. S. 49, 22 Sup. 
 Ct. 786, 46 L. Ed. 1049 (considering at length the his- 
 torical relations of volunteers to the regular army 
 and approving Deming v. McClaughry, 113 Fed. 639, 
 51 C. C. A. 349). 
 
 Army Courts-Martial. — By Act of March 
 2, 1913, it is provided that after July 1, 1913, 
 courts-martial shall be of three kinds: 1. 
 General Courts-Martial (consisting of any 
 number of officers from 5 to 13 inclusive) may 
 try any person, subject to military offence, 
 punishable by the Articles of War, and any 
 other person who by statute or the law of 
 war is subject to trial by military tribunal. 
 
 Special Courts-Martial (consisting of any 
 number of officers from 3 to 5 inclusive) shall 
 have power to try any person subject to mili- 
 tary law, except an officer, for any crime or 
 offence not capital, punishable by the Arti- 
 cles of War, but the President may make reg- 
 ulations excepting from their jurisdiction 
 any class or classes of persons. They have 
 power to adjudge punishment, not to exceed 
 confinement at hard labor for 6 months or 
 forfeiture of pay, or both, with reduction to 
 the ranks of non-commissioned officers and 
 reduction in classification of first-class pri- 
 vates. 
 
 nummary Courts-Martial (one officer) may 
 try any soldier, except one having a certifi- 
 cate of eligibility to promotion, for any crime 
 or offence not capital, punishable by the Ar- 
 ticles of War. But non-commissioned of- 
 ficers shall not, if they object, be tried with- 
 out the authority of officers competent to 
 bring them to trial before a General Court- 
 Martial. They may adjudge punishments 
 not to exceed confinement at hard labor for 
 3 months or forfeiture of 3 months pay, or 
 both, with reduction to the ranks as afore- 
 said; but when the Summary Court-Martial 
 is also the commanding officer, confinement 
 or forfeiture of pay for more than one month, 
 must be approved by superior authority. 
 
 Art. 74 provides that officers who may ap- 
 point a court-martial shall be competent te 
 appoint a judge-advocate for the same. He 
 withdraws when the court sits in closed ses- 
 sion. His advice must be given in open 
 court. U. S. R. S. § 1342. 
 
 The jurisdiction of such courts is limited
 
 COURT-MARTIAL 
 
 709 
 
 COURT-MARTIAL 
 
 to offences against the military law (which 
 title see) committed by individuals in the 
 service; Smith v. Shaw, 12 Johns. (N. Y.) 
 257; which latter term includes sutlers, re- 
 tainers to the camp, and persons serving with 
 the army In the field; GOth Art. of War; and 
 as employed in a jfwwi-military capacity 
 with its troops in time of war and on its 
 theatre; Davis, Mil. L. 478. 
 
 While a district is under martial law, by 
 proclamation of the executive, as for rebel- 
 lion, they may take jurisdiction of offences 
 which are cognizable by the civil courts only 
 in time of peace; 11 Op. Att-Gen. 137. This 
 rule is said by American writers to apply 
 where the army passes into a district where 
 there are no civil courts in existence ; Benet, 
 Mil. Law 15. 
 
 Military commissions organized during the 
 Civil War, in a state not invaded and not 
 engaged in rebellion, in which the federal 
 courts were not obstructed in the exen 
 their judicial functions, had no jurisdiction 
 to convict, for a criminal offence, a citizen, 
 who was neither a resident of a rebellious 
 state, nor a prisoner of war, nor a person In 
 the military or naval service ; and congress 
 could not invest them with any such power; 
 Ex parte Milligan, 4 Wall. (U. S.) 2, 18 L. 
 Ed. 2S1. Cases arising in the land and naval 
 forces, or in the militia in time of war or 
 public danger, are excepted from the right of 
 trial by jury ; ibid. % 
 
 The court must appear from its record to 
 have acted within its jurisdiction; Pox v. 
 Wood, 1 Rawle (Pa.) 143; Brooks v. Adams, 
 11 Pick. (Mass.) 442; Mills v. Martin, 19 
 Johns. (N. Y.) 7; Mathews v. Bowman, 25 
 Me. 1GS; Ex parte Biggers, 1 McMull. (S. C.) 
 69: Mitchell v. Harmony, 13 How. (U. S.) 
 134, 14 L. Ed. 75. A court-martial unlawful- 
 ly convened is not a de facto court; Mc- 
 Claughry v. Deming, 186 U. S. 49, 22 Sup. 
 Ot TsG, 46 L. Ed. 1049. A want of jurisdic- 
 tion either of the person. Meade v. Deputy 
 Marshall, 1 Brock. 324, Fed. Cas. No. 9,372, 
 or of the offence, will render the members 
 of the court and oliieers executing its sen- 
 tence trespassers; Wise v. Withers, 3 Cra. 
 (U. S.) 331, 2 L. Ed. 457. So, too, the mem- 
 bers are liable to a civil action if they ad- 
 mit or reject evidence contrary to the rules 
 of the common law ; 2 Kent 10 ; V. Kennedy, 
 Courts-Mart. 13 ; or award excessive or il- 
 legal punishment; V. Kennedy, Courts-Mart. 
 13. The President may return the proceed- 
 ings with a recommendation that a more 
 severe sentence be imposed; Swaini v. U. S., 
 165 U. S. 563, 17 Sup. Ct. 448,' 41 L. Ed. 823. 
 
 The decision and sentence of a court-mar- 
 tial, having jurisdiction of the person accus- 
 ed and of the offence charged, and acting 
 within the scope of its lawful powers, cannot 
 be reviewed or set aside by writ of habeas 
 corpus; Johnson v. Sayre, 158 U. S. 109, 15 
 Sup. Ct. 773, 39 L. Ed. 914. But by habeas 
 corpus, the legality of the action of a court- 
 
 martial — whether it was legally constituted 
 and had jurisdiction — may be enquired into; 
 In re Reed, 100 35 L. E5d 
 
 "Courts-martial are lawful tribunals, with 
 authority to determine finally any 
 which they have jurisdiction, and 
 ceedings, when continued a i. are 
 
 not open to review hy the civil tribune 
 eept for the purpose of ascertaini] 
 the military court had Jurisdiction Of the 
 person and subject matter, and wl 
 though having such Jurisdiction, it had ex- 
 ceeded its powers in the sentence pro: 
 ed." Carter v. Roberts, 177 D. S. 49 
 Sup. Ct. 713, 44 L. Ed. 861. Quoted with ap- 
 proval in Carter v. McClaughry, 183 F. S. 
 365, 22 Sup. Ct. 181, 40 L. Ed 236; Grafton 
 v. r. s.. 206 U. S. 33::. 347, 27 Sup. Ct 1 
 L. Ed 1084. 
 
 The presumptions in favor of official ac- 
 tion preclude attack on the sentences of 
 courts-martial, though they are coin I 
 cial or limited jurisdiction; in re Chapman, 
 166 I'. S. 670, 17 Sup. Ct. 677, 41 L. Ed 1154, 
 disapproving Rnnkle v. U. S., 122 D. S 
 7 Sup. Ct. 1141, 30 L. Ed. 1107. They are 
 entitled to the same finality as to the Issue 
 involved as the judgment of a civil court ; 
 Grafton v. U. S., 200 U. S. 3! 
 71'.). 51 L. Ed 1084. Questions of procedure, 
 the improper admission of evidence, and the 
 like, are not grounds of collateral attack on 
 the judgment of a court-martial; Swaim v. 
 U. S., 105 U. S. 553, 17 Sup. Ct. 4 IS. 41 ! 
 S23. Under Art. 62, general courts-martial 
 may take cognizance of all crimes not capita i 
 committed by an oliicer or soldier in the ter- 
 ritory within which he is serving; this is 
 concurrent with civil courts; if the former 
 first obtains jurisdiction, its judgment can be 
 disregarded by the civil courts only for rea- 
 sons affecting its jurisdiction; Grafton v. 
 United States. 200 U. S. ! - I p. Ct 749, 
 51 L. Ed. 10S4. 
 
 If the offence is a crime against society, 
 the punishment provided by law may be im- 
 posed and also a dishonorable discharge; In 
 re Mason. 105 U. S. 696, 26 L. Ed 1213. 
 
 Acquittal by a court-martial does not bar a 
 ution by the civil authorities; In re 
 Fair. LOO Fed. 149. Acquittal in a state 
 court on a charge of murder does not bar a 
 trial by court-martial for "conduct to the 
 prejudice of good order and military discip- 
 line." though based on the same act; In re 
 Stubbs. 133 Fed. 1012. 
 
 The President, by virtue of his office as 
 Commander-in-Chief, may appoint a general 
 court-martial: Swaim v. F. S.. L65 F. S 
 17 Sup. Ct 448, 41 L. Ed 
 
 The presiding officer has no command ove r 
 the other members; they are all on an equal- 
 ity; Dig. J. Adv. Gen. 009. 
 
 No otlicer shall, when it can be avoided, be 
 tried by officers inferior to him in rank. 79th 
 Art. Whether it "can be avoided" is for the 
 decision of the convening officer; Swaim v.
 
 COURT-MARTIAL 
 
 710 
 
 COURT-MARTIAL 
 
 U. S., 1G5 U. S. 553, 17 Sup. Ct. 44S, 41 L. Ed. 
 S23. 
 
 Consent does not give jurisdiction to a 
 court of regular officers to try officers or 
 soldiers of other forces ; McClaughry v. 
 Deming, 186 U. S. 49, 22 Sup. Ct. 7SG, 40 L. 
 Ed. 1049. 
 
 Retired army officers are subject to trial 
 by court-martial ; Murphy v. U. S., 38 Ct. 
 01. 511 ; Closson v. U. S., 7 App. D. C. 400 ; 
 so is a minor who has enlisted without con- 
 sent of his parents or guardians and has de- 
 serted; Solomon v. Davenport, 87 Fed. 318, 
 30 C. C. A. 604. When jurisdiction has at- 
 tached, an enlisted man may be tried and 
 sentenced after his enlistment has expired; 
 Barrett v. Hopkins, 7 Fed. 312 ; and his sen- 
 tence carried out ; Coleman v. Tennessee, 97 
 U. S, 509, 24 L. Ed. 1118; so of an officer 
 after he has ceased to be such; Carter v. 
 McClaughry, 183 U. S. 365, 22 Sup. Ct. 181, 
 40 L. Ed. 230. 
 
 Courts-martial should in general follow the 
 rules of evidence of the civil courts and es- 
 pecially of the United States criminal 
 courts; Davis, Mil. L. 251; Town of Le- 
 banon v. Heath, 47 N. H. 359; 2 Op. A.- 
 G. 343. Perhaps more latitude is allowed; 
 Davis, Mil. L. 25L In England (Act of 1S81) 
 the ordinary rules of evidence must be ap- 
 plied. The accused is not' entitled to counsel 
 but the privilege is usually granted ; Davis, 
 Mil. L. 38. 
 
 Where a prisoner on trial for a trivial of- 
 fence is absent for a day, it does not vitiate 
 the proceedings ; Weirman v. U. S., 30 Ct. CI. 
 230. Where the offence is one punishable by 
 the civil authorities, a court-martial may in- 
 flict the same punishment and add a dishon- 
 orable discharge ; Ex parte Mason, 105 U. S. 
 096, 26 L. Ed. 1213, cited in Carter v. Mc- 
 Claughry, 1S3 U. S. 3S2, 22 Sup. Ct. 181, 46 
 L. Ed. 236. 
 
 A death sentence requires the concurrence 
 of two-thirds of the members ; Art. 96. 
 
 Naval Courts -Martial. — Summary courts- 
 martial (R. S. § 1624, Act of March 2, 18S5) 
 may be ordered upon petty officers and per- 
 sons of inferior ratings, by the commander 
 of any vessel, or by the commandant of any 
 navy-yard, naval station or marine barracks, 
 for the trial of offences which such officer 
 may deem deserving of greater punishment 
 than such officer is authorized to inflict, but 
 not sufficient to require trial by general 
 court-martial. They consist of 3 officers not 
 below the rank of ensign, as members, and 
 a recorder. 
 
 The punishments which they can inflict are 
 specified in the act. No sentence shall be 
 carried into execution until the proceedings 
 have been approved by the convening officer 
 and by the commander-in-chief, or, in his 
 absence, by the senior officer present, and, if 
 It involves loss of pay, until approved by 
 the Secretary of the Navy. The convening 
 officer may remit in part or altogether, but 
 
 not commute, the sentence. Any punishment 
 which a summary court-martial may inflict 
 may also be inflicted by a general court-mar- 
 tial. 
 
 No officer shall be dismissed from the serv- 
 ice except by order of the President or by 
 sentence of a general court-martial, or, in 
 time of peace, except in pursuance of a sen- 
 tence of a general court-martial or in miti- 
 gation thereof. 
 
 A general court-martial shall consist of not 
 more than 13 nor less than 5 commissioned 
 officers, and as many officers, not exceeding 
 13, as can be convened without injury to the 
 service (which is for the convening officer to 
 decide); Bishop v. U. S., 197 U. S. 334, 25 
 Sup. Ct. 440, 49 L. Ed. 7S0; but in no case, 
 where it can be avoided without injury to 
 the service, shall more than one-half, exclu- 
 sive of the President, be junior to the of- 
 ficer to be tried. 
 
 When proceedings have been commenced, 
 they shall not be suspended or delayed on 
 account of the absence of any of the mem- 
 bers, provided five or more are assembled. 
 But where a member is absent for legal 
 cause, the witnesses examined during bis ab- 
 sence must be recalled and their testimony 
 read to him and acknowledged by them to be 
 correct, and they must be subject to such 
 further examination as he may require. 
 Without compliance with this rule and an 
 entry thereon on the record, such member 
 shall not sit again in that case. 
 
 Two-thirds must concur in a death sen- 
 tence. All other sentences may be determin- 
 ed by a majority. 
 
 A convening officer may order a court-mar- 
 tial to reconsider its proceedings and sen- 
 tence before it has dissolved ; In re Reed, 100 
 U. S. 13, 25 L. Ed. 53S; where it has been 
 adjourned by the Secretary of tbe Navy till 
 further orders, he may reconvene it to re- 
 consider the proceedings ; Smith v. Whitney, 
 110 U. S. 107, Sup. Ct. 570, 29 L. Ed. 001. 
 
 Where the sentence of an officer is dis- 
 missal from the navy (in time of peace) it 
 is subject to the President's confirmation, dis- 
 approval or order. His action thereon is ju- 
 dicial ; Bishop v. U. S., 197 U. S. 334, 25 Sup. 
 Ct. 440, 49 L. Ed. 7S0. 
 
 Deck Courts (Act of February 16, 1909) are 
 courts for the trial of enlisted men in the 
 Navy and Marine Corps for minor offences 
 formerly triable by summary court-martial 
 and may be ordered by the commanding of- 
 ficer of a naval vessel, by the commandant 
 of a navy-yard or station, by a commanding 
 officer of marines or by a higher naval au- 
 thority. They consist of one commissioned 
 officer only, who shall hear and determine 
 cases and impose punishment, but not dis- 
 charge from the service or impose confine- 
 ment or forfeiture of pay for longer than 20 
 days. The officer within wbose command 
 the court sits may "remit or mitigate, but 
 not commute, any sentence; no sentence
 
 COURT-MARTIAL 
 
 711 
 
 COURT OF NISI PRIUS 
 
 shall be carried into effect until it shall have 
 been so approved or mitigated, and such of- 
 Gcer shall have power to remit any punish- 
 ment." No person who objects thereto shall 
 be tried before a deck court ; in case of ob- 
 jection, trial shall be by summary, or by gen- 
 eral, court-martial, as may be appropriate. 
 
 The Secretary of the Navy may set aside 
 the proceedings or remit or mitigate th< 
 tence imposed by any court-martial. 
 
 General courts-martial may be convened 
 by the President, the Secretary of the Navy, 
 by the commander-in-chief of a fleet, or squad- 
 ron, and by the commanding officer of any 
 naval station beyond the continental limits 
 of the United States. 
 
 The use of irons as a form of punishment 
 in the Navy is abolished, except for the pur- 
 pose of safe custody, or when part of a sen- 
 tence as imposed by a general court-martial. 
 Act of .May 11, 1908. 
 
 A general court-martial or court of in- 
 quiry of the Navy may issue like process to 
 witnesses which United States courts of crim- 
 inal jurisdiction within the state, etc., where 
 the court is ordered to sit, may lawfully is- 
 sue. Any person duly subpoenaed as a wit- 
 ness, who wilfully neglects or refuses to ap- 
 pear or qualify or to testify or to produce 
 documentary evidence, is guilty of a misde- 
 meanor, excepting persons residing beyond 
 the state, etc., where the court is held. No 
 witness can be compelled to incriminate him- 
 self. Depositions may be taken in certain 
 cases. 
 
 The sentences of summary courts-martial 
 may be carried into effect upon the approval 
 of the senior officer present, and those of 
 deck courts upon the approval of the conven- 
 ing authority or his successor in office. Act 
 of February 16, 1909. 
 
 The ordinary rules of evidence are applied 
 as far as justice requires and are to be de- 
 parted from in cases of necessity created by 
 the nature of the service, the constitution of 
 the court, and its course of procedure. The 
 accused is entitled to counsel, but he may 
 only address the court by permission, and 
 only in case a stenographer is employed. 
 
 No federal tribunal has jurisdiction over a 
 naval court-martial nor can it interfere in 
 the performance of its duties; Wales v. Whit- 
 ney, 114 U. S. 5G4, 5 Sup. Ct. 1030, 29 L. Kd. 
 277 ; Swaim v. U. S., 165 U. S. 553, 17 Sup. 
 Ct. 448, 41 L. Ed. S23. 
 
 Consult Benet; De Hart, and also Adye; 
 Defalon; Hough; J.Kennedy, V.Kennedy; 
 M'Arthur; Macnaghten; Macomb; Simmons; 
 Tytler; Dudley; Davis. Courts-Martial; 
 Brickhimer; Ives; Merrill; Winthrop, Mil. 
 Law; Opinions J. Adv. Gen. passim: Regula- 
 tions for the Govt, of the Navy (1909) ; Court 
 of Inquiry. 
 
 COURT OF NISI PRIUS. A court of orig- 
 inal civil jurisdiction in the city and county 
 of Philadelphia, held by one of the judges 
 
 of the supreme court of the state. Abolished 
 by the constitution of 1st :si Priub; 
 
 Courts of Assize and Nisi Prius. 
 
 COURT OF THE OFFICIAL PRINCIPAL. 
 
 See Court of tiie Ana 
 
 COURT OF ORDINARY. A court which 
 has jurisdiction of the probate of wills and 
 the regulation of the management of dece- 
 dents' estates. 
 
 Such a court exists in Georgia (Code 1882, 
 § 31S), and formerly existed in New Jersey, 
 South Carolina, and Texas, but has been re- 
 placed by other courts. See 2 Kent 409 ; 
 Obdinabt. 
 
 COURT OF ORPHANS. The court of the 
 lord mayor and aldermen of London, which 
 had the care of those orphans whose parents 
 died In London and were free of the city. 
 
 By the custom of London this court was 
 entitled to the possession of the person, 
 lands, and chattels of every infant whose 
 parent was free of the city at the time of 
 ath and who died in the city. The ex- 
 ecutor or administrator of such dec< 
 parent was obliged to exhibit inventor.' 
 the estate of the deceased, and give security 
 to the chamberlain for the orphan's part or 
 share. It is now said to be fallen into dis- 
 use. 2 Steph. Com. 313; Pull. Cust. Lond. 
 196, Orphans' Court. 
 
 COURT OF OYER AND TERMINER. The 
 name of courts of criminal jurisdiction in 
 several of the states, as in Delaware and 
 Pennsylvania. They were abolished in New 
 York and New Jersey in 1895. In Pennsyl- 
 vania they are held at the same time with 
 the court of quarter sessions, as a general 
 rule, and by the same judges. In Delaware 
 they are specially called by a precept from 
 the judges when there are capital felonies 
 to be tried, and consist of the chief justice 
 and three associate judges. 
 
 COURTS OF OYER AND TERMINER 
 AND GENERAL GAOL DELIVERY. In 
 English Law. Tribunals for the examina- 
 tion and trial of criminals. 
 
 They are held before commissioners se- 
 lected by the High Court, among whom are 
 usually two justices of that court. 
 
 Under the commission of oyer and trrmi- 
 ncr the justices try indictments previously 
 found at the same assizes for (reason, fel- 
 ony, or misdemeanors. Under the commis- 
 sion of general gaol delivery they may try 
 and deliver every prisoner who is in gaol 
 when the judges arrive at the circuit town, 
 whenever or before whomsoever Indicted or 
 for whatsoever crime committed. These com- 
 missioners are joined with those of (XStize 
 and nisi prius aud the commission of the 
 pence. 3 steph. Com. 352. See Courts of 
 Assize and Nisi Prius. 
 
 In American Law. Courts of criminal ju- 
 risdiction in some states. See Court of Oy- 
 er and Terminer.
 
 COURT OF THE PALACE 
 
 712 
 
 COURT OF PIE POWDER 
 
 COURT OF THE PALACE. See Court of 
 the Steward and the Marshal. 
 
 COURT OF PASSAGE. A court, still ex- 
 isting, in Liverpool, having civil jurisdiction. 
 It is an inferior court of record. 
 
 COURT OF PECULIARS. Ecclesiastical 
 courts which grew up in England and grad- 
 ually displaced the jurisdiction of the ordi- 
 nary diocesan court. There are peculiars of 
 various descriptions in most dioceses, and 
 in some they are very numerous: Royal, 
 archiepiscopal, episcopal, deaconal, subdea- 
 conal, prebendal, rectorial and vicarial. 
 Some of them were wholly exempt from epis- 
 copal, and even archiepiscopal control. There 
 was an appeal formerly to the Pope ; in later 
 days to the High Court of Delegates. Most 
 of them have been abolished by legislation. 
 1 Holdsworth, Hist. Engl. Law 352. 
 
 COURTS OF PETTY SESSIONS. See 
 
 Courts of England. 
 
 COURT OF PIE POWDER, PY-POW- 
 DER, PIPOWDER, PIE POUDRE, or PIED- 
 POUDRE (Fr. vied, foot, and poudre, dust 
 or pied puldreaux [old French] pedler). A 
 court of special jurisdiction in every fair or 
 market, said to have been so called because 
 the several disputes which arose were ad- 
 judged with a dispatch that suited the con- 
 venience of transitory suitors, — the men with 
 "dusty feet" 
 
 The word pie powder, spelled also piedpoudre and 
 pypowder, has been considerd as signifying dusty 
 feet, pointing to the general condition of the feet 
 of the suitors therein; Cowell ; Blount; or as in- 
 dicating the rapidity with which justice is adminis- 
 tered, as rapidly as dust can fall from the foot ; Co. 
 4th Inst. 472; or pedler's feet, as being the court of 
 such chapmen or petty traders as resorted to fairs. 
 It was not confined to fairs or markets, but might 
 exist, by custom, in cities, boroughs, or vills for the 
 collection of debts and the like; Cro. Jac. 313; Cro. 
 Car. 46 ; 2 Salk. >604. Coke calls them "Courts Pe- 
 poudrous." 4 Inst. 272. It was an important court 
 in his time. It was held before the steward of him 
 who was entitled to the tolls from the market. 
 
 In an enumeration of common-law insti- 
 tutions which he claims were derived from 
 the Roman law, Mr. Semmes claims that 
 these courts owe both their origin and their 
 name to the Roman law, "as will be seen 
 by referring to the code 1. 3, tit. 3, De Pe- 
 daneis Judicious." Address, Am. Bar. Assn. 
 Rep. 1886, p. 197. 
 
 The civil jurisdiction extended to all mat- 
 ters of contract arising within the precinct 
 of the fair or market during the continuance 
 of the particular fair or market at which the 
 court was held, the plaintiff being obliged 
 to make oath as to the time and place. The 
 cases were mostly trade disputes, and accord- 
 ingly the decisions were law made by mer- 
 chants, and a good deal of interest attached 
 to them as decisions by juries of experts; 1 
 Social England 464. Disputes only could be 
 determined which arose in the fair and in 
 fair time; Inderwick, King's Peace 105. 
 
 The criminal jurisdiction embraced all of- 
 
 fences committed at the particular fair or 
 market at which the court was held. An ap- 
 peal lay to the courts at Westminster. See 
 Harrington, Stat. 337; 3 Bla. Com. 32; 3 
 Steph. Com. 317, n. ; Skene, de verb. sig. 
 Pede pulverosus; Bracton 334; 22 L. Q. R. 
 244; 1 Holdsw. Hist. E. L. 309. 
 
 The court of pie poudre is mentioned in 
 Odgers, C. L. 1021, as being an inferior court 
 not of record, now in existence. 
 
 COURT OF POLICIES OF INSURANCE. 
 
 A court of special jurisdiction which took 
 cognizance of cases involving claims made by 
 those insured upon policies in the city of 
 London. 
 
 It was organized by a commission issued 
 yearly by the lord chancellor, by virtue of 
 43 Eliz. c. 12, and 13 & 14 Car. II. c. 23, to 
 the judge of the admiralty, the recorder of 
 London, two doctors of the civil law, two 
 common-law lawyers, and eight merchants, 
 empowering any three of them (one being a 
 civilian or barrister) to determine in a sum- 
 mary way all causes concerning policies in 
 the city of London. The jurisdiction was 
 confined to actions brought by assured per- 
 sons upon policies of insurance on mer- 
 chandise; and an appeal lay by way of a 
 bill to the court of chancery. The court has 
 been long disused, and was formally abol- 
 ished by stat. 26 & 27 Vict c. 125. 3 BU. 
 Com. 74; 3 Steph. Com. 317, n.; Crabb, 
 Hist Eng. Law 503. 
 
 COURT PREROGATIVE. See Preroga- 
 tive Court. ! 
 
 COURT OF PROBATE. In American Law. 
 A court which has jurisdiction of the pro- 
 bate of wills and the regulation of the man- 
 agement and settlement of decedents' estates, 
 as well as a more or less extensive control 
 of the estates of minors and other persons who 
 are under the especial protection of the law. 
 In some states, this court has also a limited 
 jurisdiction in civil and criminal actions. 
 For the states in which such courts exist, 
 and the limits of their jurisdiction, see the' 
 articles on the various states. 
 
 In English Law. A court in England, es- 
 tablished under the Probate Act of 1857, hav- 
 ing exclusive jurisdiction of testamentary 
 causes or proceedings relating to the validity 
 of wills and the succession to the property 
 of intestates. 2 Steph. Com. 192 ; 3 id. 346. 
 This court is now merged in the High Court 
 of Justice under the Judicature Act of 1873. 
 See Courts of England. 
 
 COURT OF PYPOWDER. See Court or 
 Pie-Powder. 
 
 COURT OF QUARTER SESSIONS. 
 
 Courts of England. 
 
 See 
 
 COURT OF QUARTER SESSIONS OF 
 THE PEACE. A court of criminal jurisdic- 
 tion in the state of Pennsylvania. There is 
 one such court in each county of the state. 

 
 COURT OF QUARTER SESSIONS 713 
 
 COURT OF RECORD 
 
 Its sessions are, in general, held at the same 
 time and by the same judges as the court of 
 oyer and terminer and general gaol delivery. 
 
 COURT OF QUEEN'S BENCH. See 
 
 Coukt of King's Bench. 
 
 COURT OF RECORD. A judicial organiz- 
 ed tribunal having attributes and exercising 
 functions Independently of the person of the 
 
 magistrate designated generally to hold it, 
 and proceeding according to the course of the 
 common law. Ex parte Gladhill, 8 MetC. 
 (Mass.) 171, per Shaw, C. J. 
 
 A court where the acts and proceedings 
 are enrolled in parchment for a perpetual 
 memorial and testimony. 3 Bla. Com. 2-1. 
 
 A court which has jurisdiction to flue and 
 Imprison, or one having jurisdiction of civil 
 causes above forty shillings, and proceeding 
 according to the course of the common law. 
 Woodman v. Somerset County, 37 Me. 29, 
 
 All courts are either of record or not of record. 
 The possession of the right to fine and Imprison for 
 contempt was formerly considered as furnishing 
 decisive evidence that a court was a court of rec- 
 ord ; Co. Litt. 117 b, 260a; 1 Salk. 144; 12 Mod. 
 388; 2 Wms. Saund. 101a; Viner, Abr. Cowtsj and 
 it is said that the erection of a new tribunal with 
 this power renders it by that very fact a court of 
 record ; 1 Salk. 200 ; 12 Mod. 388 ; 1 Woodd. Lect. 
 98 ; 3 Bla. Com. 24, 25 ; but every court of record 
 does not possess this power; 1 Sid. 145; 3 Sharsw. 
 Bla. Com. 25, n. The mere fact that a permanent 
 record is kept does not, In modern law, stamp the 
 character of the court; since many courts, as pro- 
 bate courts and others of limited or special Jurisdic- 
 tion, are obliged to keep records and yet are held to 
 be courts not of record. See Smith v. Rice, 11 Mass. 
 510; Smith v. Morrison, 22 Pick. (Mass.) 430; 
 Scott v. Rushman, 1 Cow. (N. Y.) 212; Thomas v. 
 Robinson, 3 Wend. (N. Y.) 2GS; Snyder v. Wise, 10 
 Pa. 158; Silver Lake Bank v. Harding, 5 Ohio, 545; 
 Bancroft v. Stanton, 7 Ala. 351 ; Ellis v. White, 25 
 Ala. 540. The definition first given above is taken 
 from the opinion of Shaw, C. J., in Ex parte Glad- 
 hill, 8 Mete. (Mass.) 171, with an additional element 
 not required In that case for purposes of distinction, 
 and is believed to contain all the distinctive quali- 
 ties which can be said to belong to all courts tech- 
 nically of record at modern law. To be a court of 
 record, a court must have a clerk and a seal ; Lewis 
 Co. v. Adamskl, 131 Wis. 311, 111 N. W. 495. As to 
 what are courts of record and courts not of record 
 In England, see 2 Odgers, C. L. 1021. 
 
 Courts may be at the same time of record 
 for some purposes and not of record for 
 others; Wheaton v. Fellows, 23 Wend. (N. 
 Y.) 370; Lester v. Redmond, 6 Hill (N. Y.) 
 590; Ex parte Gladhill. 8 Mete. (Mass.) 108. 
 
 Courts of record have an Inherent power, 
 independently of statutes, to make rules for 
 the transaction of business; but such rules 
 must not contravene the law of the land ; 
 Fullerton v. Bank, 1 Pet (U. S.) 004, 7 L. 
 Ed. 2S0; Boas v. Xagle, 3 S. & R. (Pa.) 253; 
 Snyder v. Ranchman, 8 S. & R. (Fa.) 330; 
 Risher v. Thomas, 2 Mo. 98. They can be 
 deprived of their jurisdiction by express 
 terms of denial only ; Kline v. Wood, 9 S. 
 & R. (Pa.) 20S; 2 Burr. 1042; 1 W. Bla. 286. 
 Actions upon the judgments of such courts 
 may, under the statutes of limitations of 
 some of the states of the United States, be 
 
 brought after the lapse of the period of limi- 
 tation for actions on simple eontn 
 this provision has gi A de- 
 
 terminations of what are and what are 
 courts of record. Ith v. Morrison, -- 
 
 Pick. (Mass. i 430 ; Mowi . 
 Cray (Mass.) 515; Le I Bill 
 
 (N. Y.i 590; Scott . !; . 
 Y.) 212; Ellis v. White, 2 
 man v. Somerset County, 37 Me. 
 
 Under the naturalization act of t 
 States, "every court of record in a 
 having common-law jurisdiction and 
 and a clerk or prothonotary" ha 
 specified powers. As to what the require- 
 ments are to constitute a court of record or- 
 der this act, see Carter v. Gregor; 
 
 I 168; Wheaton v. Fellows, 23 V 
 (N. Y.i 375. 
 
 A writ of error lies to correct erron 
 proceedings in a court of record; 3 Bla; Com. 
 407; Gay v. Richardson, 18 Pick. (M 
 *17: but will not lie unless the court be one, 
 technically, of record: Smith v. Pice, 11 
 Mass. 510. See Writ of Ekrob. 
 
 COURT OF REFEREES. See 
 Court of; Locus Standi. 
 
 COURT OF REGARD. See Regard. 
 
 COURT OF REQUESTS (called otherwise 
 court < 'ice i. A court of equity Cor 
 
 poor suitors, or for the king's servants privi- 
 leged to sue there. The first record of a 
 case is in 8 Henry VIII. Originally a stand- 
 ing committee of the Council, its meml ers 
 being the same as those of the Star Cham- 
 ber. Later it became a separate court and 
 its regular judges were styled V 
 Request. It was virtually abolished by Act 
 of 1040; 1 Holdsw. II. B. L. 208. See 3 
 Steph. Com. 449; Bac. Abridg. ; Select I 
 in the Court of Requests (Seidell Society, 
 Publ. vol. 12). 
 
 In the 17th and 18th centuries Courts ol 
 Request were established in different | b 
 England for the coUection of small d 
 by 1S00, fifty-four such courts had b en cre- 
 ated by fifty-four acts of Parliament. 
 
 COURT ROLLS. The rolls of a manor 
 court. In the 13th century landowners were 
 beginning to catalogue their ; 
 
 the proceedings of their courts. The 
 court rolls show that there was a large body 
 of law systematically and regularly admin- 
 istered in these local Courts; - 1! 
 
 !■:. L. 272. See Copyhold ; Roll. 
 
 COURTS OF SCOTLAND. The Court of 
 - of the Inner House, and the 
 Outer House. The former has two divi 
 
 lent and three Jud 
 tute the first division; the Lord Justice 
 Clerk and three judges constitute the secoud 
 division. In the Outer House are live perma- 
 nent Lords Ordinary, attached equally to 
 both divisions of the court.
 
 COURTS OF SCOTLAND 
 
 714 
 
 COURT OF STAR CHAMBER 
 
 Court of Justiciary is a court of general 
 criminal and limited civil jurisdiction. 
 
 It consists of the Lord Justice General, the 
 Lord Justice Clerk, and all the members 
 of the court of session. The kingdom is 
 divided into three circuits, in each of which 
 two sessions, of not less than three days 
 each, are to be held annually. A term may 
 be held by any two of the justices, or by the 
 Lord Justice General alone, or in Glasgow, 
 by a simple justice; except in Edinburgh, 
 where three justices constitute a quorum, 
 and four generally sit in important cases. 
 
 Its criminal jurisdiction extends to all 
 crimes committed in any part of the king- 
 dom; and it has the power of reviewing the 
 sentences of all inferior criminal courts, un- 
 less excluded by statute. Alison, Pr. 25. 
 
 Its civil jurisdiction on circuits is appel- 
 late and final in cases involving not more 
 than twelve pounds sterling. 
 
 COURT OF SESSIONS. 
 
 inal jurisdiction existing 
 states. 
 
 A court of crim- 
 in some of the 
 
 COURT OF SHERIFF'S TOURN. See 
 
 Sheriff's Tourist. 
 
 COURT OF STANNARIES. See Stan- 
 nary Courts. 
 
 COURTS OF THE STAPLE. See Stat- 
 ute Staple. 
 
 COURT OF STAR CHAMBER. A court 
 which was formerly held by members of the 
 King's Council, together with two judges of 
 the courts of common law. 
 
 The name star chaviber is of uncertain origin. It 
 has been thought to be from the Saxon steoran, to 
 govern, alluding to the jurisdiction of the court over 
 the crime of cosenage ; and has been thought to 
 have been given because the hall in which the court 
 was held was full of windows, Lambard, Eiren. 148; 
 or, according to Blackstone, because the contracts 
 and obligations of the Jews (called Starra, which 
 were enrolled in three places, one of which was 
 the exchequer at Westminster) were originally kept 
 there ; 4 Bla. Com. 266, n. The room so used came 
 to be appropriated to the Council. The derivation 
 of Blackstone receives confirmation from the fact 
 that this location (the exchequer) is assigned to the 
 star chamber the first time it is mentioned. The 
 word star acquired at some time the recognized 
 signification of inventory or schedule. Stat. Acad. 
 Cont. 32 ; 4 Sharsw. Bla. Com. 266, n ; Coke (4 Inst. 
 66). Sir Thomas Smith (3 Comm. c. 4), and Cam- 
 den (Britannia 130), derive the name from the fact 
 that the roof of the room where the Council sat, was 
 ornamented with stars. "Sterred Chambre" is first 
 refered to in 1348 ; 1 Holdsw. Hist. E. L. 272. 
 
 In 1487 an act relating to the King's Coun- 
 cil provided that the Chancellor and Treas- 
 urer of England, the Keeper of the Privy 
 Seal, or two of them, a bishop and a tem- 
 poral lord of the Council, the two chief jus- 
 tices, or two other justices in their absence, 
 should have jurisdiction over certain "mis- 
 doers." According to Coke and Bacon this 
 act merely confirmed the jurisdiction of the 
 Council and vested it in a committee. This 
 committee became an ordinary court towards 
 the end of the 16th century, though closely 
 
 connected with the Council. It was officially 
 styled "The Lords of the Council sitting in 
 the Star Chamber." The jurisdiction relat- 
 ed to matters in some way concerning the 
 state such as piracy, prize, salvage, disputes 
 arising in the course of trade; punishing 
 libels, conspiracy and false accusations, riots, 
 fraud, forgery, and enforcing the laws 
 against recreapts. In private disputes, it 
 was open to all. It pi'otected the weak from 
 the oppression of great offenders. If the 
 poor were oppressed they sought relief in 
 the Star Chamber. Palgrave (Council 104) 
 says that it "became indispensable for the 
 preservation of the rights and liberties of 
 the people." 
 
 The court became unpopular and its pro- 
 ceedings in political cases became tyrannical 
 before 1640. In that year it was abolished 
 by Parliament, together with the Council of 
 Wales, the Council of the North, the juris- 
 diction of the Star Chamber exercised by 
 the Court of the Duchy of Lancaster, and 
 the Court of Exchequer of the County Pala- 
 tine of Chester. The act provided that nei- 
 ther the King nor his Privy Council have, or 
 should have, jurisdiction by English bill, 
 petition etc. over the lands and chattels of 
 subjects, but that the same ought to be de- 
 termined in the ordinary courts of justice 
 and by thje ordinary course of law. See 
 Grand Remonstrance. 
 
 As the act referred only to English bills 
 or petitions, it did not affect the appellate 
 jurisdiction of the Council over places out- 
 side the English law. To this is largely due 
 the present Judicial Committee of the Privy 
 Council, which title see. See 1- Holdsw. Hist. 
 E. L. 271 ; Encycl. Brit, art. Star Chamber; 
 Palgrave, Council ; Scofield ; Hudson, Star 
 Chamber; 12 Am. L. Rev. 21; Courts of 
 England; Privy Council. 
 
 COURT OF THE STEWARD AND THE 
 MARSHAL. A court which had cognizance of 
 cases which arose within the Verge i. e. 
 within 12 miles of the place where the king 
 was actually residing. Its judges had ju- 
 risdiction as deputies of the Lord Chief Jus- 
 tice ; when he was present, their general au- 
 thority ceased. When, in 28 Edw. I., the 
 King's Bench was ordered to follow the 
 king, their general jurisdiction practically 
 ceased, though they sometimes tried cases in 
 vacation under a special commission of oyer 
 and terminer. 
 
 As judges of the Court of the Marshalsea, 
 the Steward and the Marshal had jurisdic- 
 tion in debt and covenant (if both parties 
 were of the King's household), and in tres- 
 pass vi et armis (if one was) ; and it was 
 limited to the Verge (10 Co. Rep. 71). As 
 it was obliged to follow the king it was an 
 extremely inconvenient court to use. 
 
 It is probable that the fiction by which 
 the King's Bench ultimately acquired con- 
 current jurisdiction with the Common Pleas 

 
 COURT OF THE STEWARD 
 
 715 COURT OF WARDS AND LIVERIES 
 
 sprang from its early connection with this 
 court. 
 
 Charles J. created a Court of the Palace 
 to be held by the Steward and the Marshal, 
 baying jurisdiction over all personal actions 
 arising within the Verge of Whitehall, but 
 cases begun there, if of Importance, were 
 usually removed to the King's Bench r 
 Common Picas; 1 Iloldsw. Hist. H. I.. v ". 
 The Palace Court was abolished by 12 & 13 
 Vict. c. 101. 3 Steph. Com. 317. 
 
 COURT OF SWANIMOTE or SWEIN- 
 MOTE (spelled, also, Swainmote, Bwain-ge- 
 
 mote; Saxon, suinij, an attendant, a free- 
 holder, and mote or gemote, a meeting). 
 
 In English Law. One of the forest courts, 
 now obsolete, hela before the verderers, as 
 Judges, i-.v the steward, thrice In everj 
 — the sweins or freeholders within the forest 
 composing the jury. 
 
 This court had jurisdiction to inquire into 
 grievances and oppressions committed by the 
 officers of the forest, and also to receive and 
 try presentments certified from the court of 
 attachments, certifying the cause, in turn, 
 under the seals of the jury, in case of con- 
 viction, to the court of justice seat for the 
 rendition of judgment. Cowell ; .". I'.la. Com. 
 71, 72; :: Steph. Com. :U7, n. See Inderwick, 
 King's Peace loO; Forest Laws. 
 
 COURTS OF SURVEY. These are courts 
 held in England and Wales under the Mer- 
 chants' Shipping Act of 1894. The Wreck 
 Commissioner is judge of every such court 
 in the United Kingdom. There are a large 
 number of associate judges in various cir- 
 cuits in England and Wales. 
 
 COURTS OF THE TWO UNIVERSITIES. 
 In English Law. See Chancellor's Courts 
 of the Two Universities. 
 
 COURTS OF THE UNITED STATES. 
 
 See United States Courts. 
 
 COURT OF VICAR GENERAL. A court 
 of the Archbishop of Canterbury, In which 
 the bishops of the province are confirmed. 
 1 lioldsw. Hist. E. L. 372. 
 
 COURT OF WARDS AND LIVERIES. A 
 court of record in England, which had the 
 supervision and regulation of Inquiries con- 
 cerning the profits which arose to the crown 
 from the fruits of tenure, and to giant to 
 heirs the delivery of their la mis from the 
 possession of their guardians. 
 
 The Court ot the K> was instituted by 
 
 stat. 32 Hin. VIII. >-. ii'i, tu take the place of the 
 ancient ' mortem, and the jurisdiction 
 
 of the restoration ot lands to heirs on their becom- 
 ing of age (livery) was added by statute " 
 VIII. c. 22, when it became the Court of Wards 
 and Liveries. It was . i 16C0. 
 
 The jurisdiction extended to the superin- 
 tendence of lunatics and idiots in the king's 
 custody, granting licenses to the king's will- 
 ows to marry, and Imposing lines for marry- 
 ing without license; 4 Reeve, Hist. E. L. 259; 
 
 Crabb, Hist. E. L. Con 
 
 4 Id. 40; 2 Bla. • 
 
 COURTESY^ Bee ' 
 
 COUSIN. The son or daughter of the 
 brother or sister of one's father or mi 
 
 The issue, respectively, of two brothers 
 or two sisters, or of 
 Those who descend from the | 
 of the father of the person 
 lied paternal cousins; maternal 
 ins are those who are descend* >m the 
 
 rs or sisters of the mother. 
 Brown, Ch. 125; 1 Sim. & s. 301 ; 'J si: 
 157. The word is still applied in Devonshire 
 to a nephew. 1 Yes. Jr. 73. 
 
 COUSINAGE. S. MHfc 
 
 couthutlaugh. lie that willingly re- 
 ceives an outlaw and cherishes or conceals 
 
 him. In ancient times he was subject to the 
 same punishment as the outlaw. Blount 
 
 COUTUM dr.). Custom; duty; toll. 1 
 Bla. Com. 314. 
 
 COUTUMIER (Fr.). See Grand Coutu- 
 
 MIER. 
 
 COVENABLE (L. Fr.). Convenient; suit- 
 able. Anciently written COtwenable. 
 
 COVENANT (Lat. convenire, to co; 
 gether; conventio, a coming together. It is 
 equivalent CO the factum conventum of the 
 civil law) . 
 
 In Contracts. An agreement between two 
 or more persons, entered into by deed, where- 
 by one of the parties promises the perform- 
 ance or non-performance of certain acts, or 
 that a given state of things does or shall, 
 or does not or shall not, exist. 
 
 A contract under seal; a deed. 
 
 Affirmative covenants are those in which 
 the covenantor declares that something has 
 been already done, or shall be done in the 
 future. 
 
 Affirmative covenants do not operate to 
 deprive covenantees of rights enjoyed inde- 
 pendently of the covenants; Dyer 19b; 1 
 25 1 . 
 
 Curt mints against tncumbran 
 Com n an C AGAINST [Nl 01CBB \ ' 
 
 .1 it, rnativi covenants are disjum 
 nants. 
 
 Auxiliary covenants are those which do 
 not relate directly to the principal matter 
 of contract between the parties, but to 
 thing connected with it. Those the scope of 
 whose operations is in aid or support of the 
 principal covenant. If the principal cove- 
 nant is void, the auxiliary is disci. 
 Anstr. 256; Prec. Chanc 475. 
 
 Collateral covenants are those which are 
 entered into in connection with the grant of 
 something, hut which do not relate immedi- 
 ately to the thing granted: as. to pay a 
 sum of money in gross, that the lessor shall
 
 COVENANT 
 
 716 
 
 COVENANT 
 
 distrain for rent on some other land than 
 that which is demised, to build a house on 
 che land of some third person, or the like. 
 Piatt, Cor. 69; Shepp. Touchstt 161; 4 Burr. 
 2439 ; 3 Term 393 ; 2 J. B. Moore 164 ; 5 B. 
 & Aid. 7 ; 2 Wils. 27 ; 1 Ves. 56. 
 
 Concurrent covenants are those which are 
 to be performed at the same time. When 
 one party is ready and offers to perform his 
 part, and the other refuses or neglects to 
 perform his, he who is ready and offers has 
 fulOlled his engagement, and may maintain 
 an action for the default of the other, though 
 it is not certain that either is obliged to do 
 the first act; Piatt, Cov. 71; 2 Selw. N. P. 
 443; Dougl. 69S; 18 E. L. & Eq. 81; Good- 
 win v. Lynn, 4 Wash. C. C. 714, Fed. Cas. 
 No. 5,553 ; Denny v. Kile, 16 Mo. 450. 
 
 Declaratory covenants are those which 
 serve to limit or direct uses. 1 Sid. 27; 1 
 Hob. 224. 
 
 Dependent covenants are those in which 
 the obligation to perform one is made to de- 
 pend upon the performance of the other. 
 Covenants may be so connected that the 
 right to insist upon the performance of one 
 of them depends upon a prior performance 
 on the part of the party seeking enforce- 
 ment. Piatt, Cov. 71; 2 Selw. N. P. 443; 1 
 C. B. N. S. 646; Northrup v. Northrup, 6 
 Cow. (N. Y.) 296; Cassell v. Cooke, 8 S. & 
 R. (Pa.) 268, 11 Am. Dec. 610; Smith v. 
 Lewis, 24 Conn. 624, 63 Am. Dec. 180; Low 
 v. Marshall, 17 Me. 232; Humphries v. 
 Goulding, 3 Ark. 581; Caldwell v. Kirkpat- 
 rick, 6 Ala. 60, 41 Am. Dec. 36; Bailey v. 
 White, 3 Ala. 330. To ascertain whether 
 covenants are dependent or not, the inten- 
 tion of the parties is to be sought for and 
 regarded, rather than the order or time in 
 which the acts are to be done, or the struc- 
 ture of the instrument, or the arrangement 
 of the covenant-, 1 Wms. Saund. 320, n. ; 
 5 B. & P. 223; Goodwin v. Lynn, 4 Wash. 
 C. C. 714, Fed. Cas. No. 5,553; McCrelish v. 
 Churchman, 4 Rawle (Pa.) 26; Grant .v. 
 Johnson, 5 N. Y. 247 ; Leveret v. Sherman, 1 
 Root (Conn.) 170; Brockenbrough v. Ward's 
 Adm'r, 4 Rand. (Va.) 352. See note to Cut- 
 ter v. Powell, 2 Smith Lead. Cas. 22. 
 
 Disjunctive covenants. Those which are 
 for the performance of one or more of sev- 
 eral things at the election of the covenantor 
 or covenantee, as the case may be. Piatt, 
 Cov. 21; Harmony v. Bingham, 1 Duer (N. 
 Y.) 209. 
 
 Executory covenants are those whose per- 
 formance is to be future. Shepp. Touchst. 
 161. 
 
 Express covenants are those which are 
 created by the express words of the parties 
 to the deed declaratory of their intention ; 
 Piatt, Cov. 25. The formal word covenant 
 is not indispensably requisite for the crea- 
 tion of an express covenant ; 5 Q. B. 683 ; 
 8 J. B. Moore 546 ; Marshall v. Craig, 1 Bibb 
 (Ky.) 379, 4 Am. Dec. 647; Hallett v. Wylie, 
 
 3 Johns. (N. Y.) 44, 3 Am. Dec. 457; Mitchell 
 v. Hazen, 4 Conn. 508, 10 Am. Dec. 169; 
 Randel v. Canal, 1 Harr. (Del.) 233. The 
 words "I oblige," "agree," 1 Ves. 516; "I 
 bind myself," Hardr. 178; 3 Leon. 119; have 
 been held to be words of covenant, as are the 
 words of a bond ; 1 Ch. Cas. 194. Any words 
 showing the intent of the parties to do or 
 not to do a certain thing, raise an express 
 covenant ; Lovering v. Lovering, 13 N. H. 513. 
 But words importing merely an order or di- 
 rection that other persons should pay a sum 
 of money, are not a covenant ; 6 J. B. Moore 
 202. 
 
 Covenants for further assurance. See 
 Covenant foe Furtheb Assurance. 
 
 Covenants for quiet enjoyment. See Cov- 
 enant foe Qutet Enjoyment. 
 
 Covenants for title are those covenants in 
 a deed conveying land which are inserted 
 for the purpose of securing to the grantee 
 and covenantee the benefit of the title which 
 the grantor and covenantor professes to con- 
 vey. 
 
 Those in common use in England are four 
 in number — of right to convey, for quiet en- 
 joyment, against incumbrances, and for fur- 
 ther assurance — and are held to run with 
 the land; the covenant for seisin has not 
 been generally in use in modern conveyanc- 
 es in England; Rawle, Cov. § 24. In the 
 United States there is, in addition, a cove- 
 nant of warranty, which is more commonly 
 used than any of the others. What are 
 "often called 'full covenants' are the cove- 
 nants for seisin, for right to convey, against 
 incumbrances, for quiet enjoyment, some- 
 times for further assurance, and, almost al- 
 ways, of warranty — this last often taking 
 the place of the covenant for quiet enjoy- 
 ment;" Rawle, Cov. § 27. The covenants of 
 seisin, for right to convey, and against in- 
 cumbrances, are generally held to be in p?-w- 
 senti; if broken at all, they are broken as 
 soon as made; Rawle, Cov. 318; 4 Kent 471; 
 Whitney v. Dinsmore, 6 Cush. (Mass.) 128; 
 3 Washb. R. P. 478; see Mitch. R. P. 448; 
 Allen v. Little, 36 Me. 170; and the various 
 titles below for a fuller statement of the 
 law relative to the different covenants for 
 title. 
 
 Implied covenants or covenants in law are 
 those which arise by intendment and con- 
 struction of law from the use of certain 
 words having a known legal operation in 
 the creation of an estate, so that after they 
 have had their primary operation in the 
 creation of the estate, the law gives them 
 a secondary force, by implying an agreement 
 on the part of the grantor to protect and 
 preserve the estate so by these words already 
 created; 1 C. B. 429; Bacon, Abr. Covenant, 
 B ; Rawle, Cov. § 270, n. In Co. Litt. 139 o, 
 it is said that "of covenants there be two 
 kinds : a covenant personal and a covenant 
 real; a covenant in deed and a covenant in 
 law." In a conveyance of lands in fee, the
 
 COVENANT 
 
 717 
 
 COVENANT 
 
 words "grant, bargain, and sell," Imply cer- 
 tain covenants; see 4 Kent 473; and the 
 word "give" implies a covenant of warranty 
 during the life of the feoffor; Raymond v. 
 Raymond, 10 Cush. (Mass.) 134; Frost v. 
 Raymond, 2 Cai. (N. Y. > 193, 2 Am. Dec. 
 228; Crouch v. Fowle, 9 N. II. 222, 82 Am. 
 Dec. 350; Young v. ITargrave's Adm'r, 7 
 Ohio 69, pt. 2; (but this covenant and that 
 implied from the word "grant" arc abolish- 
 ed in England by 8 ft 9 Vict. C. 106, § 14) ; 
 and in a lease the use of the words "grant 
 and demise;" Co. Litt. 3S4 ; Barney v. Keith, 
 4 Wend. (N. Y.) 502; "grant;" Cro 
 214; 1 P. & D. 360; "demise;" 4 Co. 80; 10 
 Mod. 102; Crouch v. Fowle. 9 N. B. 222, 32 
 Am. Dec. 350; Vemam v. Smith, 16 N. Y. 
 327; "demisement;" 1 Show. 79; 1 Salk. 137; 
 raise an implied covenant on the part of the 
 lessor, as do "yielding and paying;" Board- 
 man v. Harrington, !) Vt 151; on the part 
 of the lessee. In regard to the covenants 
 arising to each grantee by implication on 
 sale of an estate with conditions, in parcels 
 to several grantees, see Brouwer v. Jones, 23 
 Barb. (N. Y.) 153. 
 
 Covenants in deed. Express covenants. 
 
 Covenants in gross. Such as do not run 
 with the land. 
 
 Covenants In lau: Implied covenants. 
 
 Illegal covenants are those which are ex- 
 pressly or impliedly forbidden by law. Cove- 
 nants are absolutely void when entered into 
 in violation of the express provisions of stat- 
 utes ; Hall v. Mullin, 5 liar, ft J. (Md.) 193; 
 Seidenbender v. Charles' Adm'rs, 4 S. & R. 
 (Pa.) 159, 8 Am. Dec. 682; Weaver v. Wal- 
 lace, 9 N. J. L, 252; (see V.oid) ; or if they 
 are of an immoral nature; 1 B. & P. 340; 
 Winebrinner v. Weisiger, 3 T. B. Monr. 
 (Ivy.) 35; against public policy; Ayer v. 
 Butchins, 4 Mass. 370, 3 Am. Dec. 232; Hods- 
 don v. Wilkins, 7 Greenl. (Me.) 113, 20 Am. 
 Dec. 347; Gulick v. Ward. 10 X. J. L. 87, 18 
 Am. Dec. 389; Nichols v. Rugsles, 3 Day 
 (Conn.) 145, 3 Am. Dec. 262; Clippinger v. 
 Hepbaugh, 5 W. ft S. (Pa.) 315, 40 Am. Dec. 
 519; Cowen v. Boyce, 5 How. (Miss.) 709; 
 Scudder v. Andrews. 2 McLean. 464, Fed. 
 ("as. No. 12,564; Toler v. Armstrong. -1 Wash. 
 C. C. 297, Fed. Cas. No. 14,078; Armstrong v. 
 Toler, 11 Wheat. (U. S.) 25S, L. Ed. 168; 
 in general restraint of trade: Ross v. Sad- 
 gheer, 21 Wend. (N. Y.) 166; Pierce v. Wood- 
 ward, Pick. (Mass.) 206; or fraudulent as 
 between the parties; Duncan v. McCullough, 
 4 S. & R. (Pa.) 4S3; Banorgee v. Hovey, 5 
 Mass. 16, 4 Am. Dec. 17; or as to third per- 
 sons; Bailey v. Lewis, 3 Day (Conn.) 450; 
 Martin v. Matbiot, 14 S. ft R. (Ta.) 214, 16 
 Am. Dec. 491; Case v. Gerrish, 15 Pick. 
 (Mass.) 49. 
 
 Independent covenants are those the ne- 
 cessity of whose performance is determined 
 entirely by the requirements of the cove- 
 nant itself, without regard to other cove- 
 
 nants between the parties relative to the 
 same subject-matter or transactions or series 
 Of transactions. 
 
 Covenants are generally construed to be 
 independent; Piatt, Cov. 71; Barruso v. 
 Ma. Ian, 2 Johns. (N. Y. i 145; Mill 
 Foundery v. Hovey, 21 r 
 Blngh. N. S. 355; unless the undertakr 
 one side is In terms a condition to the Bl 
 lation of the other, and then only 
 ly with the intention of the parties : •"■ Maule 
 & S. 308; or unless dependency results from 
 the nature of the acts to be done, and the or- 
 der in which they must necessarily pr 
 and follow each other in the progress of per- 
 formance; Willes -P.i<;; or unless the non- 
 performance on one side goes to the entire 
 substance of the contract, and to the whole 
 consideration; Grant v. Johnson, 5 N. Y. L'17. 
 If once independent, they remain so; 1. 
 v. Harris, 19 Barb. (N. Y.) 416. 
 
 Inherent covenants are those which relate 
 directly to the land itself, or matter grant- 
 ed. Shepp. Touchst. 161. Distinguished 
 from collateral covenants. 
 
 If real, they run with the land ; Piatt, 
 Cov. 66. 
 
 Intransitive covenants are those the duty 
 of performing which is limited to the cove- 
 nantee himself, and does not pass over to 
 his repn sentative. 
 
 Joint covenants are those by which several 
 parties agree to do or perform a thi: 
 gether, or in which several persons have a 
 joint interest as covenantees. Ci 
 v. Agate, 20 Barb. (N. Y.) 603; Cah 
 Bradley, 16 How. (U. S.) 580, 14 L. Ed 
 1066; Capen v. Harrows, 1 Gray (Id 
 370; Evans v. Sanders, 10 B. Monr. (Ky.i 
 291. They may be in the negative; Wing v. 
 Chase, 35 Me. 260. 
 
 Negative covenants are those in which the 
 party obliges himself not to do or perform 
 some act. Courts are unwilling to construe 
 a negative covenant a condition precedent, 
 Inasmuch as it cannot be said to be per- 
 formed till a breach becomes Impossible; 2 
 \Yms. saund. 156; l Mod. 64; 2 KebL 674. 
 
 Obligatory covenants are those which are 
 binding on the party himself. 1 sid. 27; 1 
 Kebl. 337. They are distinguished from 
 declaratory covenants. 
 
 Personal Covenants. See Personal Cove- 
 
 N a N r. 
 
 Principal covenants. Those which relate 
 directly to the principal matter of the con- 
 tract entered into between the parties. They 
 are distinguished from auxiliary. 
 
 Real covenants. See Real Covenant. 
 
 Covenants of rights to convey. See Cove- 
 nant of Right to Convey. 
 
 Covenants of seisin. See Covenant of 
 Seisin. 
 
 Covenants to stand seized, etc. See Cove- 
 nant to Stand Seized to Uses. 
 
 Transitive covenants are tho-se personal
 
 COVENANT 
 
 718 
 
 COVENANT 
 
 covenants the duty of performing which 
 passes over to the representatives of the 
 covenantor. 
 
 Covenants of warranty. See Covenant of 
 Warranty. 
 
 Covenants are subject to the same rules as 
 other contracts in regard to the qualifica- 
 tions of parties, the assent required, and the 
 nature of the purpose for which the contract 
 is entered into. See Parties ; Contracts. 
 
 No peculiar words are needed to raise an 
 express covenant; Midgett v. Brooks, 34 N. 
 C. 145, 55 Am. Dec. 405; 5 Q. B. GS3; 3 Ex. 
 237, per Parke, B.; and by statute in Ala- 
 bama, Arkansas, Delaware, Illinois, Indiana, 
 Mississippi, Missouri, Montana, Nevada, New 
 Mexico, Pennsylvania, and Texas, the words 
 grant, bargain, and sell, in conveyances in 
 fee, unless specially restricted, amount to 
 covenants that the grantor was seized in fee, 
 freed from incumbrances done or suffered 
 by him, and for quiet enjoyment against his 
 acts ; 4 Kent 473 ; Gratz's Lessee v. Ewalt, 
 2 Binn. (Pa.) 95; Dickson v. Desire's Adm'r, 
 23 Mo. 151, 66 Am. Dec. 661; Chambers' 
 Adm'r v. Smith's Adm'r, 23 Mo. 174; Griffin 
 v. Reynolds, 17 Ala. 198; Prettyman v. Wil- 
 key, 19 111. 235 ; Davis v. Tarwater, 15 Ark. 
 289; but do not imply any general warranty 
 of title in Alabama, Arkansas, Pennsylvania, 
 and North Carolina ; 4 Kent 474; Winston v. 
 Vaughan, 22 Ark. 72, 76 Am. Dec. 418 ; Rick- 
 ets v. Dickens, 5 N. C. 343, 4 Am. Dec. 555 ; 
 Roebuck v. Duprey, 2 Ala. 535. In Iowa, by 
 the statute of 1843, the same rule was au- 
 thorized, and upon this it was held that all 
 covenants were express; Brown v. Tomlin- 
 son, 2 G. Greene (la.) 525; but no such pro- 
 visions are to be found in the revised code 
 of 1884. In Ohio the statute of 1795 was 
 almost exactly copied from the Pennsylvania 
 statute, but was repealed in 1824 and re- 
 enacted in substance, and entirely repealed 
 in 1831, and the latest Revised Statutes 
 (1884), like those of Iowa, are silent on the 
 subject. The Wisconsin statute, providing 
 that no covenant shall be implied, makes an 
 exception in the case of the short form of 
 conveyance provided by statute, and declares 
 that such a deed shall have the effect of a. 
 conveyance in fee simple to the grantee, his 
 heirs and assigns, etc. ; Rev. Stat. 1878. In 
 Tennessee there is no statutory provision as 
 to implied covenants, but a statutory short 
 form of conveyance was held to authorize 
 the broadest construction of the granting 
 words unless their effect was specially lim- 
 ited by the instrument itself ; Daly v. Willis, 
 5 Lea (Tenn.) 100. In California and North 
 and South Dakota the same rule substantial- 
 ly is prescribed by statute in the first-named 
 state, the implied covenants do not run with 
 the land; Lawrence v. Montgomery, 37 Cal. 
 1S3. In Georgia a covenant of general war- 
 ranty is held to include covenants of a right 
 to convey, quiet enjoyment, and freedom 
 from incumbrances; Burk v. Burk, 64 Ga. 
 
 632. See generally on this subject, Rawle, 
 Cov. § 286. 
 
 Describing lands in a deed as bounded on 
 a street of a certain description raises a 
 covenant that the street shall be of that de- 
 scription; Loring v. Otis, 7 Gray (Mass.) 
 563; and that the purchaser shall have the 
 use thereof; Moale v. Mayor, etc., of Balti- 
 more, 5 Md. 314, 61 Am. Dec. 276; Green- 
 wood v. R, R., 23 N. H. 261; which binds sub- 
 sequent purchasers from the grantor ; Thom- 
 as v. Poole, 7 Gray (Mass.) 83. 
 
 In New York it is provided by statute that 
 no covenants can be implied in any convey- 
 ance of real estate; 4 Kent 469; but this 
 provision does not extend to leases for years ; 
 Tone v. Brace, 11 Paige (N. Y.) 566; Mack 
 v. Patchin, 42 N. Y. 174, 1 Am. Rep. 506. 
 
 The New York statute has been enacted 
 in Michigan, Minnesota, Oregon, Wisconsin, 
 and Wyoming, and no covenants for title 
 seem to be implied in states other than those 
 above named. In some cases where the cove- 
 nants relate to lands, the rights and liabili- 
 ties of the covenantor, or covenantee, or 
 both, pass to the assignee of the thing to 
 which the covenant relates. In such cases 
 the covenant is said to run with the land. If 
 rights pass the benefit is said to run; if lia- 
 bilities, the burden. Only real covenants run 
 with the land, and these only when the cove- 
 nant has entered into the consideration for 
 which the land, or some interest therein to 
 which the covenant is annexed, passed be- 
 tween the covenantor and the covenantee ; 2 
 Sugd. Vend. 468, 484; 2 M. & K. 535; Morse 
 v. Aldrich, 19 Pick. (Mass.) 449; Hurd v. 
 Curtis, 19 Pick. (Mass.) 464; Van Rens- 
 selaer v. Bonesteel, 24 Barb. (N. Y.) 366; 
 Lyon v. Parker, 45 Me. 474; see 1 Washb. R. 
 P. 526; and they die with the estate to which 
 they are annexed; Lewis v. Cook, 35 N. C. 
 193 ; but an estoppel to deny passage of title 
 is said to be sufficient; Trull v. Eastman, 3 
 Mete. (Mass.) 124, 37 Am. Dec. 126; and the 
 passage of mere possession, or defeasible 
 estate without possession, enables the cove- 
 nant to run ; Dickson v. Desire's Adm'r, 23 
 Mo. 151, 66 Am. Dec. 661; Chambers' Adm'r 
 v. Smith's Adm'r, 23 Mo. 174. 
 
 It is said by some authorities that the 
 benefit of a covenant to do acts upon land 
 of the covenantee, made with the "covenantee 
 and his assigns," will run with the land 
 though no estate passed between the cove- 
 nantor and covenantee; Rawle, Cov. 335; 
 Year B. 42 Edw. III. 13; Allen v. Culver, 3 
 Den. (N. Y.) 301; but the weight of author- 
 ity is otherwise; 2 Sugd. Vend. 468; Tlatt, 
 Cov. 461. Covenants concerning title gen- 
 erally run with the land; Carter v. Den- 
 man's Ex'rs, 23 N. J. L. 260; except those 
 that are broken before the land passed; 4 
 Kent 473; Swasey v. Brooks, 30 Vt. 692. See 
 Covenant of Seisin, etc. "Until breach, 
 covenants for title, without distinction be- 
 tween them, run with the land to heirs and
 
 COVENANT 
 
 719 
 
 COVENANT 
 
 assigns. But while this is well settled, a 
 strong current of American authority has 
 set in favor of the position that the cove- 
 nants for seisin, for right to convey, and, 
 perhaps, against Incumbrances, are what are 
 called covenants in prcesenti, — if broken at 
 all, their breach OCCUrS at the moment of 
 their creation. . . . These covenants, it 
 is held, are then turned into a mere right of 
 action, which is not assignable at law and 
 can neither pass to an heir, a devisee, or a 
 subsequent purchaser. 3 distinction is con- 
 sidered, by this class of cases, to exist, in 
 this respect, between the covenants first 
 named, and those for quiet enjoyment, of 
 warranty, and for further assurance, which 
 are held to be prospective in their charac- 
 ter;" Kawle. Cov. §§ 204, 205. See also 
 Greenby v. Wilcocks, 2 Johns. (N. Y.) 1, 3 
 Am. Dec. 379. 
 
 Covenants in leases, by virtue of the stat- 
 ute 32 Hen. VIII. c. 34, which has been re- 
 enacted in most of the states, are assignable 
 as respects assignees of the reversion and 
 of the lease. The lessee continues liable on 
 express covenants after an assignment by 
 him, but not on implied ones; 4 Term 9S; 
 but he is liable to the assignee of the lessor 
 on implied covenants, at common law; Piatt, 
 Gov. 532; 2 Sugd. Vend. 400; Burton, R. P. 
 § 855. See 1 Washb. R. P. 526. 
 
 In case of the assignment of lands in par- 
 cels, the assignees may recover pro rata, and 
 the original covenantee may recover accord- 
 ing to his share of the original estate re- 
 maining; 2 Sugd. Vend. 508; Kawle, Cov. § 
 215; Allen v. Little, 30 Me. 17t»; McClure'S 
 Ex'rs v. Gamble, 27 Pa. 28S; White v. Whit- 
 ney, 3 Mete. (Mass.) 87; Dickinson v. 
 Hoomes's Adin'r, 8 Gratt. (Va.) 407; Dough- 
 erty v. Duvall's Heirs, 9 B. Monr. (Ky.i 58. 
 But covenants are not, in general, apportion- 
 able; McClure's Ex'rs v. Gamble. 27 Pa. 288. 
 See Spencer's case, 1 Sin. Lead. Cas. 200. 
 In Practice. A form of action which lies 
 to recover damages for breach of a contract 
 under seal. It is one of the brevia formatQ 
 of the register, and is sometimes a concurrent 
 remedy with debt, though never with as- 
 sumpsit, and is the only proper remedy 
 where the damages are unliquidated in na- 
 ture and the contract is under seal: Fitzh. 
 X. B. 340; Chit. PL 112, 11-: 2 Steph. X. I'. 
 1068. As to the early history of the action, 
 see Salmond, 3 Sel. Essays, Auglo-Amer. L. 
 11. 324. 
 
 The action lies, generally, where the cove- 
 nantor does some act contrary to ins agree- 
 ment, or fails to do or perform that which 
 he has undertaken; 4 Dane. Abr. 115; or 
 does that which disables him from perform- 
 ance; Cro. Eli/-. U'.': L5 Q. B. SS; Heard v. 
 Bowers, 23 Pick. (Mass.) 455. 
 
 To take advantage of an oral agreement 
 modifying the original covenant in an es- 
 sential point, the covenant must be aban- 
 doned a?id assumpsit brought; Lehigh Coal 
 
 & Xav. Co. v. Harlan. -7 Pa. 429; Sherwin 
 v. R. K. CO., ■-■! \ I 
 
 The venue is local when the action is 
 founded on privity of -aund. 
 
 241 6, n.; and transitory whi a i\ la founded 
 upon privity of contract. A 
 rial parties to the covenant, t:. i^ 
 
 transitorj ; and, by :;2 Ben. VIII. c 34, an 
 action of covenant by an a 
 reversion against a lessor, or by a 
 again t the assignee of the reversion, Is 
 itory; 1 Chit PI. 274. 
 The '/' elaration must, at common law. aver 
 a contract under seal : 2 I.d. Kaym. 15: 
 and either make profert thereof or 
 the omission; :; Term 151; at least of such 
 part as is broken; Bi ad( r v. Fromberger, 4 
 Dull. I r. s.i •!.".<:. 1 b. Ed 898; Kllllan v. 
 Ibrndon, 4 Rich. (S. C.) 196; and a breach 
 or breaches; Fortenhury v. Tunstall, •"> Ark. 
 203; Steele v. Curie, 4 Dana i Ky. i 381; 
 which may be by negativing the words of the 
 covenant In actions upon covenants of seisin 
 and right to convey; Kawle, COV. g 170; or 
 according to the legal i Heel : but musl set 
 forth the incumbrance in case of a covenant 
 against incumbrances; id. § SO; and must 
 allege an eviction in case of warranty; id. 
 § l.".r». The disturbance must be averred to 
 have been under lawful title: id. No con- 
 sideration need be averred or shown, as it is 
 said to be implied from the seal: but per- 
 formance oT an act which constitutes a 
 tion precedent to the defendant's covenant, if 
 there be any such, must be averred ; 2 
 Greenl. Ev. § 235; Nesbltt v. McGehee, 20 
 Ala. 748. The damages laid must be large 
 enough to cover the real amount sought to 
 be recovered; Clarke v. McAnulty. :j S. & It 
 (Pa.) 304; Jordan v. Cooper, id. 567. 
 
 There is no plea of general issue in this 
 action. Under non est factum, the defend- 
 ant may show any facts contradicting the 
 making of the deed: Haggart v. Morgan, 5 
 N. Y. 422. 55 Am. Dec. 350; Agent of State 
 Prison v. Lathrop, 1 Mich. 438; as. personal 
 incapacity: 2 Campb. 272: that the deed 
 was fraudulent; Lofft 457; was not deliver- 
 ed ; 1 I'.sp. 255; or was not executed by all 
 the parties : 6 Maule & S. 341. 
 
 Hon infregit conventionem and nit debet 
 have both been held Insufficient; Com. Dig. 
 Pleader, - V. 4. As to the effect of cove- 
 nant performed, see Covehaitts Performed. 
 
 The judgment is that the plain! 
 a named sum for the damages which lie has 
 sustained by reason of the breach or breach- 
 es of covenant, together with cos 
 
 COVENANT TO CONVEY. V COV( ant by 
 which the covenantor undertakes to convey 
 u. iii,. covenantee tne estate described in the 
 covenant, under certain drcumstai 
 
 This form of conditional alienation of lands Is in 
 • use; Espy v. Anderson, 14 Pa. 308; Atkins 
 n tt, 19 Barb. (X. Y.) 639 : Marshall v. Haney. 
 I Mel. 198, 59 Am. Dec. 92; Morgan v. Smith, 11 111. 
 194 ; Campbell v. Gittings, 19 Ohio. 347. Substan- 
 tially the same effect is secured as by a conveyance
 
 COVENANT 
 
 720 
 
 COVENANT 
 
 and a mortgage back for the purchase-money, with 
 this important difference, however, that the title 
 remains in the covenantor until he actually exe- 
 cutes the conveyance. 
 
 The remedy for breach may be by action 
 on the covenant; Haverstick v. Gas Co., 29 
 Pa. 254; but the better remedy is said to be 
 in equity for specific performance; Poor Di- 
 rectors v. McFadden, 1 Grant Cas. (Pa.) 230. 
 It is satisfied only by a perfect convey- 
 ance of the kind bargained for; Atkins v. 
 Bahrett, 19 Barb. (N. Y.) 639; otherwise 
 where an imperfect conveyance has been ac- 
 cepted ; Marshall v. Haney, 4 Md. 498, 59 
 Am. Dec. 92. 
 
 COVENANT FOR FURTHER ASSUR- 
 ANCE. One by which the covenantor under- 
 takes, at the requirement of the covenantee, 
 to do such reasonable acts in addition to 
 those already performed as may be neces- 
 sary for the completion of the transfer made, 
 or intended to be made. It relates both to 
 the title of the vendor and to the instrument 
 of conveyance, and operates as well to secure 
 the performance of all acts for supplying 
 any defect in the former, as to remove all 
 objections to the sufficiency and security of 
 the latter. Piatt Cov. 341. 
 
 The covenant is of frequent occurrence 
 in English conveyances; but its use here 
 seems to be limited to some of the middle 
 states; 2 Washb. R. P. 648; Griffin v. Fair- 
 brother, 10 Me. 91; Prescott v. Trueman, 4 
 Mass. 627, 3 Am. Dec. 246 ; Raymond v. Ray- 
 mond, 10 Cush. (Mass.) 134. It is usual in 
 railroad and other corporation mortgages. 
 
 The covenantor, in execution of his cove- 
 nant, is not required to do unnecessary acts ; 
 Yelv. 44; 9 Price 43. He must in equity 
 grant a subsequently acquired title; 2 Ch. 
 Cas. 212; 2 P. Wins. 630; must levy a fine; 
 16 Ves. 366; 4 Maule & S. 188; must remove 
 a judgment or other incumbrance ; 5 Taunt. 
 427; but a mortgagor with such covenant 
 need not release his equity; 1 Ld. Raym. 36. 
 It may be enforced by a bill in equity for 
 specific performance, or an action at law to 
 recover damages for the breach ; 2 Co. 3 a ; 
 6 Jenk. Cas. 24; Rawle, Cov. § 362 ; 2 Washb. 
 R. P. 666. 
 
 COVENANT AGAINST INCUMBRANCES. 
 One which has for its object security against 
 those rights to, or interests in, the land 
 granted which may subsist in third persons 
 to the diminution of the value of the estate, 
 though consistently with the passing of the 
 fee by the deed of conveyance. See Incum- 
 brance. 
 
 The mere existence of an incumbrance 
 constitutes a breach of this covenant; 2 
 Washb. R. P. 658; McLemore v. Mabson, 20 
 Ala. 137; without regard to the knowledge of 
 the grantee ; 2 Greenl. Ev. § 242 ; Butler v. 
 Gale, 27 Vt. 739; Medler v. Hiatt, 8 Ind. 171. 
 Such covenants, being in prccsenti, do not 
 run with the land in Massachusetts and 
 most of the other states; but the rule is 
 
 otherwise, either by statute or decision in 
 Maine, R. S. 18S3, p. 697, tit 9, § 18; Colo- 
 rado, R. S. 1S83, 172; Georgia, Code 1882, 
 072 ; New York, Hall v. Dean, 13 Johns. 105 ; 
 Colby v. Osgood, 29 Barb. 339; Ohio, Foote 
 v. Burnet, 10 Ohio, 327, 36 Am. Dec. 90; 
 Minnesota, Kimball v. Bryant, 25 Minn. 496; 
 Missouri, Magwire v. Riggin, 44 Mo. 512; 
 Hall v. Scott Co., 7 Fed. 341, 2 McCrary 350, 
 Indiana, Martin v. Baker, 5 Blackf. 232; 
 Wisconsin, Mecklem v. Blake, 22 Wis. 495, 99 
 Am. Dec. 68 (reversing the rule adopted in 
 Pillsbury v. Mitchell, 5 Wis. 17); Iowa, 
 Knadler v. Sharp, 36 la. 232; South Carolina, 
 Brisbane v. M'Crady's Ex'rs, 1 N. & McC. 
 104, 9 Am. Dec. 676; Vermont, Cole v. Kim- 
 ball, 52 Vt 639; and possibly in Michigan. 
 See Rawle, Cov. § 212. If the covenant is so 
 linked with another covenant as to have a 
 prospective operation it runs with the land ; 
 id. This covenant is usually coupled with 
 that of seisin in considering this question, 
 but it was not treated as running with the 
 land in this country so readily as the latter; 
 Rawle, Cov. § 212. 
 
 Yet the incumbrance may be of such a 
 character that its enforcement may consti- 
 tute a breach of the covenant of warranty ; 
 as in case of a mortgage ; Hamilton v. Cutts, 
 4 Mass. 349, 3 Am. Dec. 222; Sprague v. 
 Baker, 17 Mass. 586 ; Tufts v. Adams, 8 Pick. 
 (Mass.) 547. 
 
 The measure of damages is the amount of 
 injury actually sustained; Delavergne v. 
 Norris, 7 Johns. (N. Y.) 358, 5 Am. Dec. 2S1 ; 
 Bean v. Mayo, 5 Greenl. (Me.) 94; Wyman 
 v. Ballard, 12 Mass. 304 ; Batchelder v. Stur- 
 gis, 3 Cush. (Mass.) 201; Morrison v. Un- 
 derwood, 20 N. H. 369; Willson v. Willson, 
 25 N. H. 229, 57 Am. Dec. 320; Rawle, Cov. 
 § 188. 
 
 The covenantee may extinguish the in- 
 cumbrance and recover therefor, at his elec- 
 tion, in the absence of agreement; Lawless 
 v. Collier's Ex'rs, 19 Mo. 4S0; Willson v. 
 Willson, 25 N. H. 229, 57 Am. Dec. 320. See 
 Covenant; Real Covenant. 
 
 COVENANT OF NON-CLAIM. A covenant 
 sometimes employed, particularly in the New 
 England States, and in deeds of extinguish- 
 ment of ground rents' in Pennsylvania, tbat 
 neither the vendor, nor his heirs, nor any 
 other person, etc., shall claim any title in 
 the premises conveyed. Rawle, Cov. § 22. It 
 is substantially the same as the covenant of 
 warranty, q. v.; id. § 231. 
 
 COVENANT NOT TO SUE. One entered 
 into by a party who has a cause of action 
 at the time of making it, by which he agrees 
 not to sue the party liable to such action. 
 
 A perpetual covenant not to sue is one by 
 which the covenantor agrees not to sue the 
 covenantee at any time. Such a covenant 
 operates as a release to the covenantee, and 
 may be pleaded as such. Cro. Eliz. 623; 
 Hastings v. Dickinson, 7 Mass. 153, 5 Ank
 
 COVENANT 
 
 721 
 
 COVENANT 
 
 Dec. 34; Shed v. Pierce, 17 Mass. 623; 
 Harvey v. Harvey, 3 Ind. 473 ; 34 L. J. Q. B. 
 25. And see Wolf v. Wyeth, 11 S. & R. (Pa.) 
 149. 
 
 A covenant of this kind with one of sev- 
 eral, jointly and severally bound, will not 
 protect the others so bound; 12 Mod. 55] ; 
 Ward v. Johnson, G Munf. (Va.) 6, 8 Am. 
 Dec. 729; Walker v. McCulloch, 4 Greenl. 
 (Me.) 421; Mason v. Jotiett's Adin'r, 2 Dana 
 (Ky.) H)7; shed v. Tierce, 17 Mass. 623. 
 It is equivalent to a release with a reserve 
 of remedies, and hence is properly used in 
 composition deeds in preference to a release, 
 which discharges all sureties and co-debtors; 
 
 3 B. & C. 361. 
 
 A covenant by one of several partners not 
 to sue cannot be set up as a release in an 
 action by all ; 3 P. & D. 149. 
 
 A limited covenant not to sue, by which 
 the covenantor agrees not to sue for a lim- 
 ited time, does not operate a release ; and 
 a breach must be taken advantage of by 
 action; Carth. 63; 1 Show. 4G; 2 Salk. 573; 
 11 Q. B. 852 ; Howland v. Marvin, 5 Cal. 501. 
 See Keep v. Kelly, 29 Ala. 322, as to requisite 
 consideration. See Leake, Contr. 92S. 
 
 COVENANT FOR QUIET ENJOYMENT. 
 
 An assurance against the consequences of a 
 defective title, and of any disturbances there- 
 upon. Piatt, Cov. 312 ; 11 East 641 ; Rawle, 
 Cov. § 91. By it, when general in its terms, 
 the covenantor stipulates at all events; 1 
 Mod. 101; to indemnify the covenantee 
 against all acts committed by virtue of a 
 paramount title; Piatt, Cov. 313; 4 Co. 80 
 o; Cro. Car. 5; 3 Term 5S4; Howard v. Doo- 
 little, 3 Duer (N. Y.) 464; Parker v. Dunn, 
 47 N. C. 203; Hagler v. Simpson, 44 N. C. 
 3S4; Carter v. Denman's Ex'rs, 23 N. J. L. 
 260; not including the acts of a mob ; Surget 
 v. Arighi, 11 Smedes & M. (Miss.) 87, 49 Am. 
 Dec. 46; Rantin v. Robertson, 2 Strobh. (S. 
 C. ) 367; nor a mere trespass by the lessor; 
 Mayor, etc., of New York v. Mabie, 13 N. Y. 
 151, 64 Am. Dec. 538. 
 
 But this rule may be varied by the terms 
 of the covenant; as where it is against acts 
 of a particular person ; Cro. Eliz. 212; 5 
 Maule & S. 374 ; or those "claiming or pre- 
 tending to claim;" 10 Mod. 383; or molesta- 
 tion by any person. See Surget v. Arighi, 11 
 Smedes & M. (Miss.) 87, 49 Am. Dec. 
 
 It has practically superseded the ancient 
 doctrine of warranty as a guaranty of title, 
 in English conveyances; 2 Washb. R, P. 
 661; but the latter is more common in con- 
 veyances in America ; Rawle, Cov. § 91. 
 
 It occurs most frequently in Leases; 1 
 Washb. R. P. .",25; Rawle, Cov. § 91; and 
 is usually the only covenant used in such 
 cases; it is there held to be raised by the 
 words grant, demise, lease, yielding and pay- 
 ing, give, etc.; 1 P. & D. 360; Crouch v. 
 Fowle, 9 N. II. 222, 32 Am. Dec. 350; Yer- 
 nam v. Smith, 15 N. Y. 327; 6 Bingh. 666; 
 
 4 Kent 474, n. ; and exists impliedly in a 
 
 Bouv.— 46 
 
 parol lease; 20 E. L. & Eq. 374; Carter v. 
 Denman's Ex'rs, 23 N. J. L. 200 ; see Blyden- 
 Imrgh v. Cotheal, 1 Duer (X. Y.) 176. It is 
 usual in ground-rent deeds in Pennsylvania; 
 Rawle, Cov. § 91. 
 
 COVENANT OF RIGHT TO CONVEY. 
 An assurance by the covenantor that the 
 grantor has sufficient capacity and title to 
 convey the estate which he by his deed un- 
 dertakes to convey. 
 
 In modern English conveyancing, this 
 nant has taken the place of the covenant of 
 seisin; 2 Washb. R, V. t;4S. It is Bald 
 the same as a covenant of seisin ; Griffin v. 
 Fairbrother, 10 Me. 91; Prescoti v. Truemau, 
 1 Mass. 627, 3 Am. Dec. 216; hut is not nec- 
 essarily so, as it includes the capacity of the 
 grantor; T. Jones 195; Cro. Jac. : 
 
 The breach takes place on execution of 
 the deed, if at all; Freem. 41; Chapman v. 
 Holmes' Ex'rs, 10 N. J. L. 20; and the cove- 
 nantee need not wait for a disturbance to 
 bring suit ; 5 Taunt. 426; but a second recov- 
 ery of damages cannot be had for the same 
 breach; Piatt, Cov. 310; 1 Maule & S. 365 : 
 4 id. 53. 
 
 COVENANT OF SEISIN. An assurance to 
 the grantee that the grantor has the ver 
 tate, both in quantity and quality, which he 
 professes to convey. Piatt, Cov. 306. It has 
 given place in England to the covenant "f 
 right to convey, but is in use in several 
 states; 2 Washb. R. P. C4S. 
 
 In England; 1 Maule & S. 355; 4 id. 53; 
 and in several states of the United States ; 
 e. g. Colorado, Georgia. New York, Ohio, 
 Minnesota and other states (see Rawle, Cov. 
 § 211) ; by decisions; Martin v. Bal 
 Blackf. (Ind.) 232; Devore v. Sunderland. 
 17 Ohio 52, 49 Am. Dec. 442 ; Mecklem v. 
 Blake. 22 Wis. 495. 99 Am. Dec. 6S; Schofield 
 v. Homestead Co.. 32 la. 317, 7 Am. Rep. 197 : 
 Magurro v. Riggin, 44 Mo. 512; or by stat- 
 ute; 2 Washb. R. I*. 650; this covenant runs 
 with the land, and may be sued on for breach 
 by an assignee; in other states it is held 
 that a mere covenant of lawful seisin does 
 not run with the land, but is broken, if at all. 
 at the moment of executing the deed; i 
 v. Jackson, 4 Mass. 408; Prescott v. True- 
 man, 4 Mass. 627, 3 Am. Pec. 246; Raymond 
 v. Raymond, 10 Cush. (Mass.) 134; Fowle| 
 v. Poling. 2 Barb. (X. v.i 303; Cushman v. 
 Blanchard, 2 Greenl. i Me. ) 269, 11 Am. Dec. 
 76; Wilson v. Forbes. 13 N. C. 30; Dickin- 
 son v. Hoomes's Adm'r, 8 Gratt < 7a 
 Kencaid v. Brittain, 5 Sneed (Tenn.) 119; 
 Bottorf v. Smith, 7 Ind. 673; Brady v. 
 Spurek, 27 111. 482; Lawrence v. M*o: 
 cry. 37 Cal 188; Tate v. Mitchell. 2;; Ark. 
 590, 79 Am. Dec. 114. See Covenant Against 
 
 A eovenant for indefeasible sa'din is every- 
 where held to run with the land •» Garfield v. 
 Williams. 2 Vt. 32S ; Wilson v. Forbes, 1.". N. 
 C. 30; Bender v. Fromberger, 4 DalL (I'a. I
 
 COVENANT 
 
 722 
 
 COVENANT 
 
 439, 1 L. Ed. S98; Kincaid v. Brittain, 5 
 Sneed (Tenn.) 123; Abbott v. Allen, 14 
 Johns. (N. Y.) 24S; Smith v. Strong, 14 
 Pick. (Mass.) 128; Collier v. Gamble, 10 Mo. 
 467; and to apply to all titles adverse to 
 the grantor's; 2 Washb. R. P. C56. 
 
 A covenant of seisin or lawful seisin, in 
 England and most of the states, is satisfied 
 only by an indefeasible seisin ; Rawle, Cov. 
 § 41; 7 C. B. 310; Mills v. Catlin, 22 Vt. 106; 
 Parker v. Brown, 15 N. H. 176 ; Lockwood v. 
 Sturdevant, 6 Conn. 374; while in other 
 states possession under a claim of right is 
 sufficient; Catlin v. Ilurlburt, 3 Vt. 403; 
 Raymond v. Raymond, 10 Cush. (Mass.) 134; 
 Bearce v. Jackson, 4 Mass. 408; Marston v. 
 Hobbs, 2 Mass. 439, 3 Am. Dec. 61 ; Wilson 
 v. Widenham, 51 Me. 567; Montgomery v. 
 Reed, 69 Me. 510; Watts v. Parker, 27 111. 
 229; Scott v. Twiss, 4 Xeb. 133; Vancourt v. 
 Moore, 26 Mo. 92 ; Backus' Adm'rs v. McCoy, 
 3 Ohio 211, 17 Am. Dec. 5S5; Robinson v. 
 Neil, 3 Ohio 525. 
 
 A covenant of seisin, of whatever form, is 
 broken at the time of the execution of the 
 deed if the grantor has no possession either 
 by himself or another ; and no rights can 
 pass to the assignee of the grantee; Greenby 
 v. Wilcocks, 2 Johns. (N. Y.) 1, 3 Am. Dec. 
 379; Garfield v. Williams, 2 Vt. 327; Mitch- 
 ell v. Warner, 5 Conn. 497; Bartholomew 
 v. Candee, 14 Pick. (Mass.) 170; Devore v. 
 Sunderland, 17 Ohio 60, 49 Am. Dec. 442; 
 Dickinson v. Hoomes's Adm'r, 8 Gratt. (Va.) 
 397; Pollard v. Dwight, 4 Cra. (U. S.) 430, 
 2 L. Ed. 666; Allen v. Little, 36 Me. 170; 
 Abernathy v. Boazman, 24 Ala. 189, 60 Am. 
 Dec. 459; 4 Kent 471. But it is said that 
 this is only a technical breach, and that a 
 cause of action for a substantial breach does 
 not accrue, and the statute of limitations 
 commence to run, till there has been some 
 ^substantial injury ; Forshay v. Shafer, 116 
 la. 302, 89 N. W. HOG: but other cases hold 
 that the full consideration paid may be re- 
 covered immediately upon breach. The cases 
 will be found in 8 Am. & Engl. Enc. Law 
 186. 
 
 The existence of an outstanding life-es- 
 tate; Mills v. Catlin, 22 Vt. 106; a material 
 deficiency in the amount of land ; Pringle v. 
 Witten's Ex'rs, 1 Bay (S. C.) 256, 1 Am. 
 Dec. 612 ; see Phfpps v. Tarpley, 24 Miss. 
 597; non-existence of the land described ; 
 Wheelock v. Thayer, 16 Pick. (Mass.) 68; 
 the existence of fences or other fixtures on 
 the premises belonging to other persons, who 
 have a right to remove them; Mott v. Palm- 
 er, 1 N. Y. 564 ; West v. Stewart, 7 Pa. 122 ; 
 Van Wagner v. Van Nostrand, 19 la. 427 ; 
 or of a paramount right in another to divert 
 a natural spring; Clark v. Conroe's Estate, 
 38 Vt. 471 ; or to prevent the grantee from 
 damming w-,ter to a certain height when that 
 right is reserved to him by his deed; Hall v. 
 Gale, 20 Wis. 293; Traster v. Snelson's 
 Adm'r, 29 Ind. 96 ; concurrent seisin of an- 
 
 other as tenant in common ; Wheeler v. 
 Hatch, 12 Ma 3S9; Morrison v. McArthur, 
 13 Me. 567; adverse possession of a part by 
 a stranger; Sedgwick v. Hollenback, 7 Johns* 
 (N. Y.) 376; a conveyance by one of two 
 tenants in common of the entire estate (so 
 far as his half is concerned) ; Downer's 
 Adm'rs v. Smith, 38 Vt. 464; constitute a 
 breach of this covenant. But the existence 
 of such easements or incumbrances as do not 
 affect the seisin of the purchaser does not 
 constitute a breach of the covenant; Rawle, 
 Cov. § 59. For instance, the existence of a 
 highway over a part of the land ; Jackson v. 
 Hathaway, 15 Johns. (N. Y.) 449, 8 Am. Dec. 
 263; Lewis v. Jones, 1 Pa. 336, 44 Am. Dec. 
 138 ; Peck v. Smith, 1 Conn. 103, 6 Am. Dec. 
 216 ; Vaughn v. Stuyaker, 16 Ind. 340 ; or of 
 a judgment, mortgage, or right of dower; 
 Rawle, Cov. § 59; Fitzhugh v. Croghan, 2 J. 
 J. Marsh. (Ky.) 430, 19 Am. Dec. 139; Tuite 
 v. Miller, 10 Ohio 383; Sedgwick v. Hollen- 
 back, 7 Johns. (N. Y.) 380; (otherwise if the 
 mortgagee has entered; Rawle, Cov. §59); 
 the removal of fixtures; Loughran v. Ross, 
 45 N. Y. 792, 6 Am. Rep. 173. But see Whit- 
 ney v. Dinsmore, 6 Cush. (Mass.) 124. 
 
 In the execution of a power, a covenant 
 that the power is subsisting and not revoked 
 is substituted; Piatt, Cov. 309. 
 
 COVENANT TO STAND SEISED TO 
 USES. A covenant by means of which under 
 the statute of uses a conveyance of an estate 
 may be effected. Burton, R. P. §§ 136, 145. 
 
 Such a covenant cannot furnish the ground 
 for an action of covenant broken, and in this 
 respect resembles the ancient real covenants. 
 
 The consideration for such a covenant 
 must be relationship either by blood or mar- 
 riage; 2 Washb. R. P. 129; See Corwin v. 
 Corwin, 6 N. Y. 342, 57 Am. Dec. 453. 
 
 As a mode of conveyance it has fallen 
 into disuse ; though the doctrine is often re- 
 sorted to by courts in order to give effect to 
 the intention of the parties who have under- 
 taken to convey lands by deeds which are 
 insufficient for the purpose under the rules 
 required in other forms of conveyance ; 2 
 Washb. R. P. 155; 2 Sand. Uses 79, S3; Wal- 
 lis v. Wallis, 4 Mass. 136, 3 Am. Dec. 210; 
 Gale v. Coburn, 18 Pick. (Mass.) 397; Allen 
 v. Say ward, 5 Greenl. (Me.) 232, 17 Am. Dec. 
 221; Jackson v. Staats, 11 Johns. (N. Y.) 
 351, 6 Am. Dec. 376; Cains' Lessee v. Jones, 
 5 Yerg. (Tenn.) 249. 
 
 COVENANT OF WARRANTY. An assur- 
 ance by the grantor of an estate that the 
 grantee shall enjoy the same without inter- 
 ruption by virtue of paramount title. Parker 
 v. Dunn, 47 N. C. 203; Howard v. Doolittle, 
 3 Duer (N. Y.) 464; Rindskopf v. Trust Co., 
 58 Barb. (N. Y.) 36; Moore v. Lanham, 3 
 Hill (S. C.) 304. 
 
 It is not in use in English conveyances, 
 but is in general use in the United States ; 
 2 Washb. R. P. 659; and in several states
 
 COVKXAXT 
 
 723 
 
 COVENANT 
 
 Is the only covenant in general use; Rawle, 
 Cov. § 21; Leary v. Durham, 4 Ga. 583; 
 Dickinson v. Hoome's Adm'r, 8 Gratt. (Va.) 
 353; Caldwell v. Kirkpatrick, Ala. 60, 41 
 Am. Dec. 36. 
 
 A special warranty is not a co\ • 
 against incumbrances; Washington City Bav. 
 Bank v. Thornton, 83 Va. 157, 2 S. E. 193. 
 See Bender v. Fromberger, 4 Dall. (Pa.) 436, 
 
 1 L. Ed. SOS. 
 
 The form in common use is as follows : 
 "And I the said [grantor], For myself, my 
 heirs, executors, and administrators, do cove- 
 nant with the said [grantee]* his heirs and 
 assigns, that I will, and my heirs, executors, 
 and administrators shall, warrant and de- 
 fend the same to the said [grantee], his heirs 
 and assigns forever, against the lawful 
 claims and demands of all persons [or, of 
 all persons claiming by, through, or under 
 me, but against none otherj," [or other spe- 
 cial covenant, as the case may be]. When 
 general, it applies to lawful adverse claims 
 of all persons whatever; when special, it 
 applies only to certain persons or claims to 
 which its operation is limited or restricted ; 
 
 2 Washb. It. P. GG5. See a form in Rawle, 
 Cov. § 21, n. 
 
 This limitation may arise from the nature 
 of the subject-matter of the grant ; Tufts v. 
 Adams, 8 Pick. (Mass.) 547; Wheelock v. 
 Ilenshaw, 19 Pick. (Mass.) 341; Patterson's 
 Lessee v. Pease, 5 Ohio 190. 
 
 Such covenants give the covenantee and 
 grantee the benefit of subsequently acquired 
 titles; Jackson v. Matsdorf, 11 Johns. (N. 
 Y.) 91, 6 Am. Dec. 335; Brown v. McCormick, 
 6 Watts (Ta.) 60, 31 Am. Dec. 450; Terrett 
 v. Taylor, 9 Cra. (U. S.) 43, 3 L. Ed. 050; 
 Wark v. Willard, 13 N. H. 389; Patterson's 
 Lessee v. Pease, 5 Ohio 100; Somes v. Skin- 
 ner, 3 Pick. (Mass.) 52; Lawry v. Williams, 
 13 Me. 281; to the extent of their terms; 
 Blake v. Tucker, 12 Vt. 39; Trull v. East- 
 man, 3 Mete. (Mass.) 121. 37 Am. Dec. 120; 
 Jackson v. Hoffman, 9 Cow. (N. Y.) 271; 
 Larrabee v. Larrabee, 34 Me. 4S3 ; but not if 
 an interest actually passes at the time of 
 making the conveyance upon which the cove- 
 nant may operate; Lewis v. Baird, 3 Mc- 
 Lean 5G, Fed. Cas. No. 8,310; Blanchard v. 
 Brooks. 12 Tick. (Mass.) 47; Wynn v. Har- 
 mon's Devisees, 5 Gratt. (Va.) 1.17; in case 
 of terms for years, as well as coir 
 greater estates; Wms. R. r. 22'.); 4 Keni 261, 
 n. ; Cro. Car. 109; Barney v. Keith. 4 Wend. 
 (N. Y.) H02 ; as against the grantor and 
 those claiming under him; 2 Washb. R. V. 
 479; including purchasers for value; Bates 
 v. Norcross, 11 Pick. (.Mass.) 224; Kimball 
 v. Blaisdell, 5 N. H. 533, 22 Am. Dec. 176; 
 Allen v. Sayward, 5 Me. 231, 17 Am. Dec. 
 221; Jackson v. Murray, 12 Johns. (N. Y.) 
 201; Terrett v. Taylor, 9 Cra. (U. S.) 53, 3 
 L. Ed. 050; but see Jackson v. Bradford, 4 
 Wend. (N. Y.) 019. And this principle does 
 not operate"to prevent the grantee's action 
 
 fur breach of the covenant, if evicted by such 
 title; Jarvis v. Aikens. 25 VI I 'urtis 
 
 \. Deering, 12 Me. 499. See Wheeler v. 
 Wheeler, 33 Me 347. a deed of I ad is not 
 v.'iid as between the parties of a 
 
 want of Consideration, and such want is no 
 answer to an action upon a breach of cove- 
 nant of warranty ; Comstock v. 
 389, 
 In case of a release of right and title, cove- 
 nants limited to those claiming under the 
 grantor do not prevent the assertion b; 
 grantor of a subsequently acquired tit! 
 v. Twilight, 26 N. n. 401 ; Jackson \. 
 
 1 Wend. (N. Y.) 300; Doane v. Willcutt, 5 
 Gray (Mass.; 328, 66 Am. Dec. 369; Kins- 
 man's Lessee v. Loomis, 11 Ohio 475; Ham 
 v. Ham, 14 Me. ;>5l ; Cole v. Persons Un- 
 known, 43 Me. 432; Gee v. Moore, 1 1 CaL 472. 
 
 It is a real covenant, and runs with tin- 
 estate in respect to which it is made, into 
 the hands of whoever becomes the owner; 
 
 2 Washb. B. P. 659; Chal. B. P. 279; Lau- 
 rence v. Senter, 4 Sneed (Tenn.) 5_' ; Mar- 
 bury v. Thornton, 82 Va. 702, 1 S. E. 909; 
 Succession of Cassidy, 40 La. Ann. 827, 5 
 South. 292; against the covenantor and his 
 personal representatives; McClures' Kx'rs v. 
 Gamble, 27 Pa. 288; Carter v. Denman's 
 Ex'rs, 23 N. J. L. 260; see Mygatt v. Coe, 1 1- 
 N. Y. 78, 30 N. E. S70, 24 L. R. A. 850; to the 
 extent of assets received, and cannot bi 
 ered therefrom; Lewis v. Cook. 35 N. < '. 193. 
 
 The covenant of warranty and that of 
 seisin or of right to convey are not equiva- 
 lent covenants. Defect of title will sustain 
 an action upon the latter, while disturbance 
 of possession is requisite to recover 
 the former; Douglass v. Lewis, 131 U. S. 75, 
 
 9 Sup. Ct. 634, 33 L. Ed. 53. Grantors hav- 
 ing made an express contract of warranty, 
 cannot set up knowledge of vice in their ti- 
 tle, to exonerate themselves from the obliga- 
 tion of their contract; New Orleans v. 
 Gaines, 13S U. S. 595, 11 Sup. Ct 428, 34 L. 
 Ed. 1102. 
 
 The action for breach should be brought 
 by the owner of the land and. as such, as- 
 signee of the covenant at the time it is bro- 
 ken; Bickford v. Page, 2 Mass. 155; Elder 
 v. Elder, 10 Me. 81, 25 Am. Dec. 205 ; Thomp- 
 son v. Sanders, 5 T. B. Monr. (Ky.i 357; 
 Chase v. Weston, 12 N. IT. 413; but may be 
 by the original covenantee, if he has satis- 
 lied the owner; Withy v. Mumford, 5 
 (N. V.) 137; Wheeler v. Sohier, 3 
 (Mass.) 222; Thompson v. Sanders, 5 T. B. 
 .Monr. (Ky.) 357; Booth v. Starr, 1 Conn. 
 244, 6 Am. Dec. 233; Markland v. Crump, 18 
 x. C. 94, 27 Am. Dec. 230; Redwine v. in-own, 
 
 10 Ga. 311; Smith v. Perry, 26 Vt 279. 
 To constitute a breach there must 1" an 
 
 eviction by paramount title; Rawle, Cov. S 
 131; Fowler v. Poling, 6 Barb. iN. Y.) 105; 
 Evans v. Lewis, 5 Harr. (Del.) 162; Faries v. 
 Smith's Adm'r, 11 Rich. (S. C.) SO; Norton
 
 COVENANT 
 
 724 
 
 COVENANTS PERFORMED 
 
 r. Jackson, 5 Cal. 262; Hannah v. Hender- 
 son, 4 Ind. 174; Picket's Adm'r v. Picket's 
 Adm'r, 6 Ohio St 525; Vancourt v. Moore, 
 26 Mo. 92 ; Moore v. Vail, 17 111. 1S5 ; Reed 
 v. Pierce, 36 Me. 455, 58 Am, Dec. 761; Hig- 
 gins v. Johnson, 14 Ark. 309, 60 Am. Dec. 
 544; Cheney v. Straube, 35 Neb. 521, 53 N. 
 W. 479; McGregor v. Tabor (Tex.) 26 S. W. 
 443; Gleason v. Smith, 41 Vt. 296; which 
 may be constructive; Curtis v. Deering, 12 
 Me. 499; Moore v. Vail, 17 111. 185; and 
 it is sufficient if the tenant yields to the true 
 owner, or if, the premises being vacant, such 
 owner takes possession ; St. John v. Palmer, 
 5 Hill. (N. Y.) 599; Hamilton v. Cutts, 4 
 Mass. 319, 3 Am. Dec. 222 ; Beebe v. Swart- 
 wout, 3 Gil. (111.) 162; Wilmington & R. R. 
 Co. v. Robeson, 27 N. C. 393; Ogden v. Ball, 
 40 Minn. 94, 41 N. W. 453 ; Hodges v. Lath- 
 am, 9S N. C. 239, 3 S. E. 495, 2 Am. St. Rep. 
 333 ; Succession of Cassidy, 40 La. Ann. 827, 
 5 South. 292; McGary v. Hastings, 39 Cal. 
 560, 2 Am. Rep. 456 ; Kellog v. Piatt, 33 N. J. 
 L 328. But in such case the grantee must 
 prove the existence and assertion of such 
 paramount, outstanding, hostile title ; Brown 
 v. Corson, 16 Or. 388, 19 Pac. 66, 21 Pac. 47 ; 
 Claycomb v. Munger, 51 111. 377; Crance v. 
 Collenbaugh, 47 Ind. 256; Ryerson v. Chap- 
 man, 66 Me. 557 ; Merritt v. Morse, 108 Mass. 
 276; Smith v. Sprague, 40 Vt. 43; and as- 
 sume the burden of proof with as much par- 
 ticularity as if suing in ejectment; Rawle, 
 Cov. § 136; Thomas v. Stickle, 32 la. 76; 
 Westrope v. Chambers' Estate, 51 Tex. 178; 
 unless the adverse right has been established 
 by a judgment or decree in a suit of which 
 the covenantor had been properly notified; 
 Rawle, Cov. § 136; in which case the judg- 
 ment or decree will be conclusive evidence 
 of the validity of the paramount title; id. 
 See id. § 123 et seq. 
 
 Exercise of the right of eminent domain 
 does not render the covenantor liable ; Tay- 
 lor v. Young, 71 Pa. 83; Kimball v. Semple, 
 25 Cal. 452; Raymond v. Raymond, 10 Cush. 
 (Mass.) 134; Brown v. Jackson, 3 Wheat. 
 (U. S.) 452, 4 L. Ed. 432. 
 
 When the covenantee is threatened with 
 eviction, it is usual and proper for him to 
 give notice to the covenantor to appear and 
 defend the suit. If it appears on the record 
 that the covenantor received the notice or 
 if he defends the suit, recovery therein will 
 be conclusive against him in an action by the 
 covenantee ; otherwise the question of no- 
 tice will go to the jury on the facts. If no 
 notice was given, the record of the adverse 
 suit is not even prima facie evidence that the 
 adverse title was paramount. Notice of the 
 adverse suit is not indispensable to a recov- 
 ery against the covenantor; Rawle, Cov. § 
 125. 
 
 COVENANTS PERFORMED. A plea to an 
 action of covenant, in use in Pennsylvania, 
 whereby the defendant, upon proper notice 
 
 to the plaintiff, may give anything in evi- 
 dence which he might have pleaded. Bender 
 v. Fromberger, 4 Dall. (U. S.) 439, 1 L. Ed. 
 898; Neave v. Jenkins, 2 Yeates (Pa.) 107; 
 Roth v. Miller, 15 S. & R. (Pa.) 105. And 
 this evidence, it seems, may be given in the 
 circuit court without notice, unless called 
 for ; Webster v. Warren, 2 Wash. C. C. 456, 
 Fed. Cas. No. 17,339. 
 
 COVENANTEE. One in whose favor a 
 covenant is made. Sbepp. Touch. 150. 
 
 COVENANTOR. One who becomes bound 
 to perform a covenant, 
 
 COVENTRY ACT. The common name for 
 the statute 22 & 23 Car. II. c. 1,— It having 
 been enacted in consequence of an assault on 
 Sir John Coventry in the street, and slitting 
 his nose, in revenge, as was supposed, for 
 some obnoxious words uttered by him in par- 
 liament 
 
 By this statute it is enacted that if any 
 person shall, of malice aforethought, and 
 by lying in wait, unlawfully cut or disable 
 the tongue, put out an eye, slit the nose, cut 
 off the nose or lip, or cut off or disable any 
 limb or member, of any other person, with 
 intent to maim or disfigure him, such per- 
 son, his counsellors, aiders, and abettors, 
 shall be guilty of felony without benefit of 
 clergy. The act was repealed by 9 Geo. IV. 
 c. 31. 
 
 COVERING DEED. A trust deed executed 
 by a trading company to secure an issue of 
 debentures. 
 
 Such deed usually contains a conveyance 
 to the trustees of the holders of debentures 
 or debenture stock with provisions authoriz- 
 ing the company to retain possession and 
 carry on the business until forfeiture. Sim- 
 onson, Debentures, 38. It corresponds to the 
 general corporation mortgage to secure an 
 issue of bonds, as used in this country. They 
 did not formerly include a charge on per- 
 sonal chattels because of decisions that trust 
 deeds containing charges on personalty must 
 be framed and registered under the Bills of 
 Sales acts; 34 Ch. Div. 43; but it having 
 been held that a covering deed is not subject 
 to the registration provisions ; (1891) 1 Ch. 
 (C. A.) 627; (1896) 2 Ch. 212; they now 
 usually contain such a charge; Simonson, 
 Debentures, 39. See Debentube. 
 
 COVERT BARON. A wife. So called 
 from being under the protection of her hus- 
 band, baron, or lord. 1 Bla. Com. 442. 
 
 COVERTURE. The condition or state of 
 a married woman. 
 
 During coverture the civil existence of the 
 wife is, for many purposes, merged in that 
 of her husband; 2 Steph. Com. 263. See 
 Abatement; Pabttes; Mabbied Women. 
 
 COVIN. A secret contrivance between two 
 or more persons to defraud and prejudice an- 
 other in his rights. Co. Litt 357 6; Comyns,
 
 COVIN 
 
 725 
 
 CREATE 
 
 Dig. Covin, A; 1 Viner, Abr. 473; Mix v. 
 Muzzy, 28 Conn. 186. See Collusion; De- 
 ceit; Fraud. 
 
 COW. In a penal statute which mentions 
 both cows and heifers, it was held that by 
 the term cow must be understood one that 
 had had a calf. 2 East, PL Cr. 610; 1 Leach 
 103. See Taylor v. State, 6 Humph. (Tenn.) 
 285. 
 
 COWARDICE. Pusillanimity; fear; mis- 
 behavior through fear in relation to some 
 duty to be performed before an enemy. 
 O'Brien, Court M. 142. 
 
 By both the army and navy regulations 
 of the United States this is an offence punish- 
 able in officers or privates with death, or 
 such other punishment as may be inflicted 
 by a court-martial ; Rev. Stat. §§ 1342, 1624. 
 
 CRAFT. Art or skill; dexterity in par- 
 ticular manual employment, hence the oc- 
 cupation or employment itself; manual art; 
 a trade. Webster. 
 
 This word is also now applied to all kinds 
 of sailing vessels. Owners of the Wenonah 
 v. Bragdon, 21 Gratt. (Va.) 693. See 23 L. 
 J. Rep. 156 ; 3 El. & Bl. 888. 
 
 CRANAGE. A toll paid for drawing mer- 
 chandise out of vessels to the wharf; so 
 called because the instrument used for the 
 purpose is called a crane. 8 Co. 46. 
 
 CRASTINUM, CRASTINO (Lat. to-morrow). 
 On the day after. The return day of writs 
 is made the second day of the term, the first 
 day being some saint's day, which' gives its 
 name to the term. In the law Latin, crastino 
 (the morning, the day after) would then de- 
 note the return day. 2 Reeve, Hist. Eng. 
 Law 56. In the United States the return 
 day is the first day of the term. 
 
 CRAVE. To ask; to demand. 
 
 The word is frequently used in pleading: 
 as, to crave oyer of a bond on which the suit 
 is brought; and in the settlement of accounts 
 the accountant-general craves a credit or an 
 allowance. 1 Chit. Pr. 520. See Oyee. 
 
 CRAVEN. A word denoting defeat, and 
 begging the mercy of the conqueror. 
 
 It was used (when used) by the vanquished party 
 in trial by battle. Victory was obtained by the 
 death of one of the combatants, or if either cham- 
 pion proved recreant,— that is, yielded, and pro- 
 nounced the horrible word "craven." Such a person 
 became infamous, and was thenceforth unfit to be 
 believed on oath. 3 Bla. Com. 310. See Wager of 
 Battel. 
 
 CREANCE. In French Law. A claim; 
 a debt ; also belief, credit, faith. 1 Bouvier, 
 Inst. n. 1040. 
 
 CREANS0R. A creditor. Co well. 
 
 CREATE. To create a charter is to make 
 an entirely new one, and differs from renew- 
 ing, extending, or continuing an old one. 
 Moers v. City of Reading, 21 Pa. 188; Peo- 
 ple v. Marshall, 1 Gilm. (111.) 672; Syracuse 
 
 City Bank v. Davis, 16 Barb. CS. T.) 188. See 
 McClellan v. McClellan, G5 Me. 500; Palmer 
 v. Preston, 45 Vt. 154, 12 Am. Rep. 191. 
 
 CREDENTIALS. In International Law. 
 The instruments which authorize and estab- 
 lish a public minister in his character with 
 the state or prince to whom they are ad- 
 1. If the state or prince receive the 
 minister, he can be received only in the qual- 
 ity attributed to him in his credentials. They 
 are as it were his letter of attorney, his 
 mandate patent, mandatum monifestum. 
 Vattel, liv. 4, c. 6, § 76. See Full Po 
 Letter of Credence. 
 
 CREDIBILITY. Worthiness of belief. 
 The credibility of witnesses is a question for 
 the jury to determine, as their competency 
 is for the court; Best, Ev. §76; 1 Greenl. 
 Ev. §§ 49, 425; Tayl. Ev. 1257. See Im- 
 peachment. 
 
 CREDIBLE WITNESS. One who, being 
 competent to give evidence, is worthy of be- 
 lief. Armory v. Fellowes, 5 Mass. 229 ; 2 
 Curt. EccL 336. 
 
 In deciding upon the credibility of a witness, it is 
 always pertinent to consider whether he is capable 
 of knowing thoroughly the thing about which he 
 testifies ; whether he was actually present at the 
 transaction; whether he paid sufficient attention to 
 qualify himself to be a reporter of it; and whether 
 he honestly relates the affair fully as he knows it, 
 without any purpose or desire to deceive, or to sup- 
 press or add to the truth. 
 
 In some of the states, wills must be attested by 
 credible witnesses. In several of the states, credi- 
 ble witness is used, in certain connection 
 ymous with competent witness, and in Connecticut, 
 in a statute providing for the certification of copies 
 of records, it refers to a witness giving testimony 
 under the sanction of the witness's oath ; Dibble v. 
 Morris, 26 Conn. 41G ; Hall v. Hall, 18 Ga. 40; Gar- 
 land v. Crow's Ex'rs, 2 Bail. (S. C.) 24; II awes v. 
 Humphrey, 9 Pick. (Mass.) 350, 20 Am. Dec. 481; 
 Sears v. Dillingham, 12 Mas?. 353; Fuller v. Full< r, 
 83 Ky. 350 ; Lord v. Lord, 5S N. H. 8, 42 Am. Rep. 
 565; Jarm. Wills, 124. 
 
 See Witness. 
 
 CREDIT. The ability to borrow, on the 
 opinion conceived by the lender that he will 
 be repaid. 
 
 A debt due in consequence of a contract 
 of hire or borrowing of money. 
 
 The time allowed by the creditor for the 
 payment of goods sold by him to the debtor. 
 
 That which is due to a merchant, as dis- 
 tinguished from debit, that which is due by 
 him. 
 
 That influence connected with certain so- 
 cial positions. 20 Toullier, n. 19. 
 
 In a statute making credits the subject of 
 taxation, the term is held to mean the ex- 
 cess of the sum of all legal claims and de- 
 mands, whether for money or other valuable 
 thing, or for labor or services, due or to be- 
 come due to the person liable to pay taxes 
 thereon, when added together (estimating ev- 
 ery such claim or demand at its true value 
 in money) over and above the sum of all le- 
 gal bona fide debts owing by such person; 
 Payne v. Watterson, 37 Ohio St 123.
 
 CREDIT 
 
 726 
 
 CREDITORS* BILL 
 
 See, generally, 5 Taunt. 338; Dry Dock 
 Bank v. Trust Co., 3 N. Y. 344; Rindge v. 
 Judson, 24 N. Y. 64, 71 ; People v. Loan Soc, 
 51 Cal. 243, 21 Am. Rep. 704. 
 
 As to the "full faith and credit" to be 
 given in one state to the records, etc., of 
 another state, see Foreign Judgments. 
 
 CREDIT, BILL OF. See Bill of Credit. 
 
 CREDIT INSURANCE. See Insurance. 
 
 CREDITOR. He who has a right to re- 
 quire the fulfillment of an obligation or con- 
 tract. 
 
 A person to whom any obligation is due. 
 New Jersey Ins. Co. v. Meeker, 37 N. J. L. 
 300. See Pettibone v. Roberts, 2 Root (Conn.) 
 261. 
 
 Preferred creditors are those who, in con- 
 sequence of some provision of law, are en- 
 titled to some special privilege in the order 
 in which their claims are to be paid. 
 
 CREDITOR, JUDGMENT. One who has 
 obtained a judgment against his debtor, un- 
 der which he can enforce execution. 
 
 CREDITORS' BILL. A bill in equity, filed 
 by one or more creditors, for the purpose of 
 collecting their debts out of assets, or under 
 circumstances as to which an execution at 
 law would not be available. 
 
 It is a proceeding in rem, to make effective 
 a judgment against the debtor's property 
 which is concealed ; Houghton & Co. v. Axels- 
 son, 64 Kan. 274, 67 Pac. 825. Such bills are 
 usually filed by and on behalf of the complain- 
 ant and all other creditors who shall come 
 in under the decree. They may be either 
 against the debtor in his lifetime or for an 
 account of the assets and a due settlement 
 of the estate of a decedent. 
 
 They are divided by Bispham (Equity) into 
 two classes, numbered in the order here stat- 
 ed. In bills of the second class, or those 
 which in effect seek for the administration of 
 a decedent's estate, the usual decree against 
 the executor or administrator is quod com- 
 putet; it directs the master to take the ac- 
 counts between the deceased and all his cred- 
 itors, and to cause the creditors, upon due 
 public notice, to come before him to prove 
 their debts, and to take an account of all 
 the personal estate of the deceased in the 
 hands of the executor or administrator, and 
 the same to be applied in payment of the 
 debts and other charges in a due course of 
 administration ; 1 Story, Eq. Jur. 546. 
 
 Generally speaking, this jurisdiction has 
 been transferred to probate courts in most 
 of the states, but in some states the original 
 jurisdiction of equity over the administration 
 of estates remains unabridged by the stat- 
 utes and is concurrent with that of probate 
 courts. See 3 Pom. Eq. Jur. § 1154. 
 
 Creditors' suits of the other class are 
 brought while the debtor is living and for 
 the collection of a debt against him. This 
 jurisdiction had its origin in the inadequacy 
 
 of common-law remedies by writs of exe- 
 cution. These writs at common law often 
 did not extend to estates and interests which 
 were equitable in their nature, and creditors' 
 suits were therefore permitted to be brought 
 where the relief at common law by execution 
 was ineffectual, as for the discovery of as- 
 sets, to reach equitable and other interests 
 not subject to levy and sale at law, and to 
 set aside fraudulent conveyances. 
 
 Statutes in England and America have ex- 
 tended the common-law remedies and pro- 
 vided adequate legal relief in many cases 
 where formerly a resort to equity was neces- 
 sary; Pom. Eq. Jur. § 1415. 
 
 The jurisdiction of chancery in suits 
 brought by judgment creditors to enforce the 
 collection of their judgments, after having 
 exhausted their remedy at law, although it 
 may have previously existed, is in some 
 states expressly declared and defined by stat- 
 utes. 
 
 Before a creditor can resort to the equi- 
 table estate of his debtor, he must first ob- 
 tain judgment and seek to collect the debt 
 by execution ; exhausting his remedy at law ; 
 Scott v. Neely, 140 U. S. 106, 11 Sup. Ct. 712, 
 35 L. Ed. 358; Taylor v. Bowker, 111 U. S. 
 110, 4 Sup. Ct. 397, 28 L. Ed. 368 ; Newman v. 
 Willetts, 52 111. 98; Lawson's Ex'r v. Grubbs's 
 Adm'r, 44 Ga. 466; and it must appear 
 that a judgment has been recoyered, execu- 
 tion issued thereon and returned "nulla bo- 
 na;" Preston v. Colby, 117 111. 477, 4 N. E. 
 375; Taylor v. Bowker, 111 U. S. 110, 4 
 Sup. Ct. 397, 28 L. Ed. 368 ; but this rule is 
 said to be too general ; 3 Pom. Eq. Jur. § 
 1415 ; it probably would not apply where the 
 judgment was a lien; id.; Fleming v. Graf- 
 ton, 54 Miss. 79 ; and in the federal court the 
 objection that the claim has not been re- 
 duced to judgment can be raised only by de- 
 fendant and may be waived ; Pennsylvania 
 Steel Co. v. Ry. Co., 157 Fed. 440. A judg- 
 ment cannot be questioned upon a creditor's 
 bill brought to secure its payment ; Matting- 
 ly v. Nye, 8 Wall. (U. S.) 370, 19 L. Ed. 380. 
 
 In a few jurisdictions the equitable rule 
 has been changed by statute, so that suits to 
 set aside fraudulent conveyances may be 
 maintained by simple contract creditors ; 
 Builders' & Painters' Supply Co. v. Bank, 
 123 Ala. 203, 26 South. 311; Riggin v. Hil- 
 lard, 56 Ark. 476, 20 S. W. 402, 35 Am. St. 
 Rep. 113; Huntington v. Jones, 72 Conn. 45, 
 43 Atl. 564;. Phelps v. Smith, 116 Ind. 399, 
 17 N. E. 602, 19 N. E. 156 ; Balls v. Balls, 69 
 Md. 388, 16 Atl. IS; Sandford v. Wright, 
 164 Mass. S5, 41 N. E. 120; Dawson Bank v. 
 Harris, 84 N. C. 206; Greene v. Starnes, 1 
 Heisk. (Tenn.) 582; Stovall v. Bank, 78 Va. 
 188 ; Frye v. Miley, 54 W. Va. 324, 46 S. E. 
 135. A judgment of a court of record is or- 
 dinarily sufficient; Chalmers v. Sheehy, 132 
 Cal. 459, 64 Pac. 709, 84 Am. St. Rep. 62; 
 Schaible v. Ardner, 98 Mich. 70, 56 N. V W.
 
 CREDITORS' BILL 
 
 727 
 
 CREDITORS' BILL 
 
 1105; Thorp v. Leibrecht, 50 N. J. Eq. 499, 
 39 Atl. 301; but a judgment may be dis- 
 pensed with when a creditor desires to reach 
 assets of a deceased debtor; Mallow v. Walk- 
 er, 115 la. 238,' SS N. W. 452, 91 Am. St. Rep. 
 158; or when a debtor lias absconded and 
 cannot be found within the state; First Nat. 
 Bank of Riverside v. Eastman, 144 Cal. 487, 
 77 l'ac. 1043, 103 Am. St. Rep. 95, 1 Ann. 
 Cas. 620; Quart v. Abbett, 102 Ind. 234, I 
 N. E. 47G, 52 Am. Rep. 662; or when- the 
 debtor is insolvent and the claim Is undis- 
 puted; Talley v. Curtain, 54 Fed. 43, 4 0. 
 C. A. 177. An attachment which creates a 
 lien upon real property may be the founda- 
 tion of a creditor's bill to set aside a fraud- 
 ulent conveyance; Chicago & A. Bridge Co. 
 v. Packing Co., 40 Fed. 5S1 ; Evans v. Lough- 
 ton, 09 Wis. 138, 33 N. W. 573. Where exe- 
 cution after judgment is necessary to form 
 part of basis for a bill, it should be directed 
 to and returned either from the county where 
 the judgment was obtained or where (he 
 debtor resides ; Nashville, C. & St. L. R. Co. 
 v. Mattingly, 101 Ky. 219, 40 S. W. 073; 
 Illinois Malleable Iron Co. v. Graham, 55 111. 
 App. 266. 
 
 Creditors cannot attack the interest of 
 third parties, alleged to have been obtained 
 by fraud, until they have gained a standing 
 in court by legal proceedings; Scott v. Cham- 
 bers, 62 Mich. 532, 29 N. W. 94; Goode v. 
 Garrity, 75 la. 713, 3S N. W. 150; Tift v. 
 Collier, 78 Ga. 194, 2 S. E. 943 ; McMurtry v. 
 Masonic Temple Co., SO Ky. 206, 5 S. W. 570. 
 
 Judgments of the federal court cannot be 
 made the basis of a creditor's bill in a state 
 court; Winslow v. Leland, 128 111. 301, 21 
 N. E. 5S8; contra, First Nat. Bank of Chi- 
 cago v. Sloman, 42 Neb. 350, 60 N. W. 5S9, 
 47 Am. St. Rep. 707; Chicago & A. Bridge 
 Co. v. Fowler, 55 Kan. 17, 39 Pac. 727. The 
 plaintiff in a creditor's bill is not concluded 
 by sworn answer of defendant; Edwards v. 
 Rodgers, 41 111. App. 405. 
 
 A creditor's bill is not maintainable 
 against a debtor and his fraudulent grantee, 
 after the return of an execution satisfied; 
 Davis v. Walton. SO Me. 401, 15 Atl. 48. A 
 judgment creditor's bill may be framed for 
 the double purpose of aiding an execution 
 and to reach property not open to execution ; 
 Vandorpool v. Notley, 71 Mich. 131, 12 N. W. 
 680. 
 
 The debtor should be made a party ; U. S. v. 
 llowland. 4 Wheat (U. S.) 10S, 4 L. Ed. 526; 
 the person who has possession of the property 
 sought to be reached must be joined; Dob- 
 bins v. Coles. 59 N. J. Eq. 80, 45 Atl. 444; 
 and in general all who have Interests which 
 will be affected by the decree in the property 
 sought to be reached must be made parties; 
 State v. Superior Court, 14 Wash. 686, 45 
 Pac. 670; Marshall's Ex'r v. Hall. 42 W. Va. 
 641, 26 S. E. 300. A single creditor may tile 
 a bill on his own behalf and he is entitled to 
 
 retain the priority thereby gained over other 
 
 ors; Senter v. Williams, 61 Ark. 
 32 S. W. 490, 54 Am. St. Rep. 200; Pullis 
 v. Robison, 73 Mo. 201, 39 Am. Rep. -107 : 
 Clark v. Figgins, 31 W. Va. 157, 5 S. I 
 13 Am. St. Rep. 860 (contra, where other 
 creditors intervene; Johnston v. rap. 
 L53 l'a. 189, 25 Atl. 560, B85) ; except in cer- 
 tain suits, where a trust or quasi-trust exists 
 tor all creditors; 1'auch v. De Socarr 
 N. J. Eq. 524, 39 Atl. 381; Coddinu-u-n v. 
 Bispham's Ex'rs, 36 N. J. Eq. 574; Baker v. 
 Kinnaird, 94 Ky. .". 2] S. W. 237; Day v. 
 Washburn, 21 How. (U. S.) 355, 16 L. Ed. 712. 
 
 It is the filing of the bill and service of 
 process after the return of execution which 
 gives the plaintiff a specific lien; Hi; 
 Duncan, 79 Ala. 112, 5S Am. Rep. 580; Keith 
 v. Porter, 119 Mich. 365, 78 N. W. ;;:;<;, 75 
 Am. St. Rep. 402. 
 
 A court of equity has jurisdiction to seq- 
 uestrate property in a creditor's suit, where 
 the bill charges fraud as well as in 
 cy; Robinson v. Ins. Co., 162 Fed. 794. 
 Intangible property can be reached by cred- 
 itor's bill, such as patents and copyrights; 
 Stephens v. Cady, 14 How. (U. S.) 52S, 14 L. 
 Ed. 528; Ager v. Murray, 105 U. S. 126, 26 
 L. Ed. 942 ; probably the majority rule is 
 that, in the absence of statutory authoriza- 
 tion, a creditor's bill cannot reach choses 
 in action unless the case presents some inde- 
 pendent ground of equity jurisdiction; Greene 
 v. Keene, 14 R. I. 3S8, 51 Am. Rep. 400. 
 
 Alimony awarded to a wife cannot be ap- 
 plied by creditor's bill to the payment of a 
 debt contracted before the decree of divorce ; 
 Romaine v. Chauncoy, 129 N. Y. 566, 29 N. E. 
 S26, 14 L. R. A. 712, 26 Am. St. Rep. 544 ; a 
 contingent interest, such as devise under a 
 will, may be subjected to the payment of 
 debts; Jacob v. Howard (Ky.) 22 S. W. 332; 
 so of any equitable interest; Galveston, II. .V 
 S. A. R. R. Co. v. McDonald. 53 Tex. 510. 
 Fraudulent transfers of personalty may be 
 set aside, but the bill is seldom used for this 
 purpose, the general practice being to levy 
 on personal property and determine the own- 
 ership by action of replevin; O'Brien v. 
 Stambach, 101 la. 40, 69 N. W. 113::. 63 Am. 
 St Rep. 368; Pierstoff v. Jorges, 86 Wis. 
 12S, 50 N. W. i::.'.. 39 Am. St. Ri Bigh- 
 
 ley v. Bank. 185 111. 565, 57 X. E. 436. 
 
 Motives of public policy prohibit a. bill to 
 reach the salary of a state official; Bank of 
 Tennessee v. Dibrell, •"> Sneed (Tenn.) .".T'.t: 
 or of an employe of a municipal corporation; 
 Addyston Pipe Co. v. city of Chicago, 17<> 
 ill. 580, 48 X. E. 967, 44 I.. R. A. 405; Mor- 
 gan v. Rust. 100 Ga. 346, 28 s. ]•:. U9; but 
 if the court can ascertain that no inconven- 
 ience can result to the public in a given 
 the suit may be maintained; Berton v. An- 
 derson. 50 Ark. -170. 20 S. w. 250; Knight v. 
 Nash, 22 Minn. -152; Pendleton v. Perkins, 49 
 Mo. 505. There are various statutory exemp-
 
 CREDITORS' BILL 
 
 728 
 
 CREEK NATION 
 
 tions, such as homesteads ; Jayne v. Hyiner, 
 66 Neb. 785, 92 N. W. 1019; Hines v. Dun- 
 can, 79 Ala. 112, 58 Am. Rep. 5S0. Money in 
 custodia legis, as in the hands of a clerk of 
 court in his official capacity, cannot be made 
 the subject of a creditor's bill ; Anheuser- 
 Busch Brewing Ass'n v. Hier, 52 Neb. 424, 
 7^ N. W. 588; U. S. v. Eisenbeis, 88 Fed. 4. 
 A creditor's bill will lie against municipal 
 corporation, though the same be not subject 
 to garnishment. See Addison Pipe & Steel 
 Co. v. Chicago, 28 Chicago Leg. News 256. 
 
 State statutes authorizing suits in the na- 
 ture of creditors' bills against corporations 
 do not give the federal courts jurisdiction to 
 entertain such suits when the creditor has not 
 first exhausted his legal remedy, since the 
 equity jurisdiction of thoSe courts cannot be 
 enlarged by a state statute; Morrow Shoe 
 Mfg. Co. v. Shoe Co., 60 Fed. 341, 8 C. C. A. 
 652, 24 L. R. A. 417 ; nor will such a bill lie 
 to obtain the seizure of the property of an 
 insolvent corporation which has failed to col- 
 lect stock subscriptions and executed an il- 
 legal trust deed, as these facts do not change 
 the rule of those courts that simple contract 
 creditors cannot obtain the aid of equity to 
 effect the seizure of the debtor's property and 
 its application to their claims; Hollins v. 
 Coal & Iron Co., 150 U. S. 371, 14 Sup. Ct 
 127, 37 L. Ed. 1113. But see Atlanta & F. R. 
 Co. v. Ry. Co., 35 Cent. L. J. 207. 
 
 See Bisph. Eq. 525-528; Richmond v. Irons, 
 121 U. S. 44, 7 Sup. Ct. 788, 30 L. Ed. S64; 
 4 Harv. L. Rev. 99 ; 5 id. 101 ; Ad. Eq. 250. 
 
 CREEK. Such small inlets of the sea, 
 whether within the precinct or extent of a 
 port or without, as are narrow passages, and 
 have shore on either side of them. Callis, 
 Sew. 56; 5 Taunt. 705. 
 
 Such inlets that though possibly for their 
 extent and situation they might be ports, 
 yet are either members of or dependent upon 
 other ports. 
 
 In England the name arose thus. The king could 
 not conveniently have a customer and comptroller 
 in every port or haven. But such custom-officers 
 were fixed at some eminent port ; and the smaller 
 adjacent ports became by that means creeks, or ap- 
 pendants of that port where these custom-officers 
 were placed. 1 Chit. Com. Law, 726; Hale, de Porti- 
 bus Maris, pt. 2, c. 1, vol. 1, p. 46; Comyns, Dig. 
 Navigation (C); Callis, Sew. 3-1. 
 
 A small stream, less than a river. Baker 
 v. Boston, 12 Pick. (Mass.) 184, 22 Am. Dec. 
 421 ; Schermerhorn v. R. Co., 38 N. Y. 103. 
 
 A creek passing through a deep level marsh 
 and navigable by small craft, may, under 
 legislative authority, be obstructed by a dam, 
 or wholly filled up and converted into house- 
 lots, — such obstructions not being in conflict 
 with any act of congress regulating com- 
 merce ; Willson v. Marsh Co., 2 Pet. (U. S.) 
 245, 7 L. Ed. 412; Com. v. Charlestown, 1 
 Pick. (Mass.) 180, 11 Am. Dec. 161; Rowe v. 
 Bridge Corp., 21 Pick. (Mass.) 344; Charles- 
 town v. County Com'rs, 3 Mete. (Mass.) 202; 
 Glover v. Powell, 10 N. J. Eq. 211. 
 
 CREEK NATION. See Indian Tribe. 
 
 CREMATION. The act or practice of re- 
 ducing a corpse to ashes by means of fire. 
 Act Pa. 1891, June 8 ; P. L. 212. 
 
 To burn a dead body instead of burying 
 it is not a misdemeanor unless it is so done 
 as to amount to a public nuisance. If an 
 inquest ought to be held upon a dead body 
 it is a misdemeanor so to dispose of the 
 body as to prevent the coroner from holding 
 an inquest; L. R. 12 Q. B. D. 247. In L. R. 
 20 Ch. D. 659, it was doubted as to whether 
 it is lawful to burn a body, but the question 
 was not decided. See 43 Alb. L. J. 140. See 
 Dead Body. 
 
 CREMENTUM C0MITATUS. The in- 
 crease of the county. The increase of the 
 king's rents above the old vicontiel rents for 
 which the sheriffs were to account. Whar- 
 ton, Diet. 
 
 CREPUSCULUM. Daylight ; twilight. The 
 light which immediately precedes or follows 
 the rising or setting of the sun. 4 Bla. Com. 
 224. Housebreaking during the period in 
 which there is sunlight enough to discern a 
 person's face (crepusculum) is not burglary ; 
 Co. 3d Inst. 63 ; 1 Russell, Cr. 820 ; 3 Greenl. 
 Bv. § 75. 
 
 CRETI0. Time for deliberation allowed 
 an heir (usually 100 days), to decide whether 
 he would or would not take an inheritance. 
 Calvinus, Lex. ; Taylor, Gloss. 
 
 CREW. The word crew used in a statute 
 in connection with master, includes officers as 
 well as seamen. U. S. v. Winn, 3 Sumn. 209, 
 Fed. Cas. No. 16,740; U. S. v. Winn, 1 Law 
 Rep. 63, Fed. Cas. No. 16,739a. Sometimes 
 also the master is included ; Millaudon v. 
 Martin, 6 Rob. (La.) 534; but a passenger 1 
 would not be ; TJ. S. v. Libby, 1 W. & M. 231, 
 Fed. Cas. No. 15,597. See Full Crew. 
 
 CRIER (Norman, to proclaim). An officer 
 whose duty it is to make the various proc- 
 lamations in court, under the direction of the 
 judges. The office of crier in chancery is 
 now abolished in England. Wharton. 
 
 CRIM. CON. An abbreviation for crim- 
 inal conversation, of very frequent use, de- 
 noting adultery, unlawful sexual intercourse 
 with a married woman. Bull. N. P. 27 ; Ba- 
 con, Abr. Marriage (E) 2; Nixon v. Brown, 
 4 Blackf. (Ind.) 157; 3 Bla. Com. 139. 
 
 The term is used to denote the act of adul- 
 tery in a suit brought by the husband of the 
 married woman with whom the act was com- 
 mitted, to recover damages of the adulterer. 
 That the plaintiff connived at or assented to 
 his wife's infidelity, or that he prostituted 
 her for gain, is a complete answer to the ac- 
 tion. But the fact that the wife's character 
 for chastity was bad before the plaintiff mar- 
 ried her, that he lived with her after he knew 
 of the criminal intimacy with the defendant 
 that he had connived at her intimacy with
 
 CRIM. CON. 
 
 729 
 
 CRIME 
 
 other men, or that the plaintiff had been false 
 to his wife, only go in mitigation of dam- 
 ages ; Sanborn v. Neilson, 4 N. H. 501 ; Sher- 
 wood v. Titman, 55 Fa. 77 ; as will the fact 
 that the wife willingly consented or threw 
 herself in the way of her paramour ; Fergu- 
 son v. Smothers, 70 Ind. 520, 36 Am. Rep. 
 186. 
 
 The wife cannot maintain an action for 
 criminal conversation with her husband; 
 and for this, among other reasons, because 
 her husband, who is particeps criminis, must 
 be joined with her as plaintiff. But the 
 husband may maintain the action after a di- 
 vorce granted; 2 Bish. Marr. Div. & Sep. 
 § 727; Ratcliff v. Wales, 1 Hill (N. Y.) 63. 
 This action is rare in the United States, and 
 has been abolished in England by 20 & 21 
 Vict. c. 85, § 59. The husband may, how- 
 ever, in suing for a divorce, claim damages 
 from the adulterer; 3 Steph. Com. 437. The 
 right to an action for damages is not barred 
 by the fact that the act was done by violence, 
 and that a criminal action will lie; Egbert 
 v. Green wait, 44 Mich. 245, 6 N. W. 654, 38 
 Am. Rep. 200. See 15 Am. L. Reg. (N. S.) 451. 
 That the defendant was ignorant that the 
 woman was married is immaterial ; Wales 
 v. Miner, S9 Ind. 119 ; 4 C. & P. 499. 
 
 CRIME. An act committed or omitted in 
 violation of a public law forbidding or com- 
 manding it. 
 
 A wrong which the government notices as 
 injurious to the public, and punishes in what 
 is called a criminal proceeding in its own 
 name. 1 Bish. Cr. Law § 43. See People v. 
 Supervisors of Ontario County, 4 Denio (N. 
 Y.) 260; Rector v. State, 6 Ark. 187; Durr 
 v. Howard, id. 461; Clark, Cr. Law 1. See 
 Intent; Mens Rea. 
 
 The word crime generally denotes an offence of a 
 deep and atrocious dye. When the act is of an in- 
 ferior degree of guilt, it is called a misdemeanor ; 4 
 Bla. Com. 4. Crime, however, is often used as com- 
 , prehending misdemeanor and even as synonymous 
 * therewith, and also with offence; In short, as em- 
 bracing every indictable offence; State v. Corpora- 
 tion of Savannah, T. U. P. Charlt. (Ga.) 235, 4 Am. 
 Dec. 708; Van Meter v. People, 60 111. 168; In re 
 Bergin, 31 Wis. 383 ; In re Clark, 9 Wend. (N. Y.) 
 212; Kentucky v. Dennison, 24 How. (U. S.) 102, 16 
 L. Ed. 717 ; In re Voorhees, 32 N. J. L. 144 ; People 
 v. Board of Police Com'rs, 39 Hun (N. Y.) 510; 
 People v. French, 102 N. Y. 583, 7 N. E. 913 ; but it 
 is not synonymous with felony ; County of Lehigh 
 v. Schock, 113 Pa. 379, 7 Atl. 52. 
 
 Crimes are denned and punished by statutes and 
 by the common law. Most common-law offences are 
 as well known and as precisely ascertained as those 
 which are defined by statutes: yet, from the diffi- 
 culty of exactly denning and describing every act 
 which ought to be punished, the vital and preserv- 
 ing principle has been adopted that all Immoral acts 
 which tend to the prejudice of the community are 
 punishable criminally by courts of justice; 2 East 
 6, 21 ; State v. Doud, 7 Conn. 3S6 ; People v. Smith, 
 6 Cow. (N. Y.) 258; Com. v. Harrington, 3 Pick. 
 (Mass.) 26. 
 
 As to "moral turpitude" as ground of de- 
 portation, see that title. 
 
 There are no common-law offences against 
 the United States ; U. S. v. Eaton, 144 U. S. 
 
 677, 12 Sup. Ct. 764, 36 L. Ed. 591; Petti- 
 bone v. U. S., 148 U. S. 203, 13 Sup. Ct. 541', 
 :;7 L. Ed. 419. See Common Law. There 
 ran be no constructive offences, and before a 
 man can be punished, his case must be plain- 
 ly and unmistakably within the statute; I . 
 S. v. Lacher, 134 U. S. 624, 10 Sup. Ct. • - 
 33 L. Ed. 10S0; Todd v. U. B., 158 CT. 
 15 Sup. Ct 8S9, 39 L. Ed. 9 
 
 Deliberation and premeditation to commit 
 crime need not exist in the criminal's mind 
 for any fixed period before the commission 
 of the act; Thiede v. Utah, 159 U. S. 510, L6 
 Sup. Ct. 62, 40 L. Ed. 237. 
 
 A crime malum in se is an act which 
 shocks the moral sense as being grossly im- 
 moral and injurious. With regard to some 
 offences, such as murder, rape, arson, burgla- 
 ry, and larceny, there is but one sentiment in 
 all civilized countries, which is that of un- 
 qualified condemnation. With regard to oth- 
 ers, such as adultery, polygamy, and drunk- 
 enness, in some communities they are re- 
 garded as mala in se; while in others they 
 are not even mala prohibits. 
 
 An offence is regarded as strictly a malum 
 prohibitum only when, without the prohibi- 
 tion of a statute, the commission or omission 
 of it would in a moral point of view be re- 
 garded as indifferent. The criminality of 
 the act or omission consists not in the sim- 
 ple perpetration of the act, or the neglect to 
 perform it, but in its being a violation of a 
 positive law. 
 
 The nature of the offense and the amount 
 of punishment prescribed, rather than its 
 place in the statutes, determine whether it 
 is to be placed among the serious or petty 
 offenses, whether among crimes or misde- 
 meanors; Schick v. U. S., 195 U. S. 65, 24 
 Sup. Ct. 826, 49 L. Ed. 99, 1 Ann. Cas 
 The purchase or receipt for sale of oleomar- 
 garine which has not been branded or stamp- 
 ed according to law was held a misdemeanor, 
 not a crime ; id. 
 
 A corrupt purpose, a wicked intent to do 
 evil, is indispensable to conviction of a crime 
 which is morally wrong. But no evil intent 
 is essential to an offence which is a mere 
 malum prohibitum. A simple purpose to do 
 the act forbidden in violation of the statute 
 is the only criminal intent requisite to a 
 conviction of a statutory offense which is 
 not malum in se; Armour Packing Co. v. U. 
 S., 153 Fed. 1, 82 C. C. A. 135, 14 L. R. A. 
 (N. S.) 400. 
 
 It may be by act of omission, c. g., where 
 a public officer, charged with the duty of 
 rescuing bathers, neglects his duty and one 
 is drowned. 
 
 The following is, perhaps, as complete a 
 classification as the subject admits: 
 
 Offences against the sovereignty of the 
 
 state. 1. Treason. 2. Misprision of treason. 
 
 Offenees against the Uvea and persons of 
 
 individuals. 1. Murder. 2. Manslaughter.
 
 CRIME 
 
 730 
 
 CRIMEN FALSI 
 
 3. Attempts to murder or kill. 4. Mayhem. 
 
 5. Rape. 6. Robbery. 7. Kidnapping. 8. 
 False imprisonment. 9. Abduction. 10. As- 
 sault and battery. 11. Abortion. 12. Cruel- 
 ty to children. 
 
 Offences against public property. 1. Burn- 
 ing or destroying public property. 2. Injury 
 to the same. 
 
 Offences aga-inst private property. 1. Ar- 
 son. 2. Burglary. 3. Larceny. 4. Obtaining 
 goods on false pretences. 5. Embezzlement. 
 
 6. Malicious mischief. 
 
 Offences against public justice. 1. Perju- 
 ry. 2. Bribery. 3. Destroying public rec- 
 ords. 4. Counterfeiting public seals. 5. Jail- 
 breach. 6. Escape. 7. Resistance to officers. 
 8. Obstructing legal process. 9. Barratry. 
 10. Maintenance. 11. Champerty. 12. Con- 
 tempt of court. 13. Oppression. 14. Extor- 
 tion. 15. Suppression of evidence. 16. Com- 
 pounding felony. 17. Misprision of felony. 
 
 Offences against the public peace. 1. Chal- 
 lenging or accepting a challenge to a duel. 
 2. Unlawful assembly. 3. Rout. 4. Riot 5. 
 Breach of the peace. 6. Libel. 
 
 Offences against chastity. 1. Sodomy. 2. 
 Bestiality. 3. Adultery. 4. Incest. 5. Big- 
 amy. 6. Seduction. 7. Fornication. 8. Las- 
 civious carriage. 9. Keeping or frequenting 
 house of ill-fame. 
 
 Offences against public policy. 1. False 
 currency. 2. Lotteries. 3. Gambling. 4. Im- 
 moral shows. 5. Violations of the right of 
 suffrage. 6. Destruction of game, fish, etc. 
 
 7. Nuisance. 
 
 Offences against the currency, and public 
 and private securities. 1. Forgery. 2. Coun- 
 terfeiting. 3. Passing counterfeit money. 
 
 Offences against religion, decency, and 
 morality. 1. Blasphemy. 2. Profanity. 3. 
 Sabbath-breaking. 4. Obscenity. 5. Cruelty 
 to animals. 6. Drunkenness. 7. Promoting 
 intemperance. See 2 Sharsw. Bla. Com. 42. 
 
 Offences against the public, individuals, or 
 their property. 1. Conspiracy. 
 
 Under recent legislation certain new of- 
 fences have been created, such as conspira- 
 cies in restraint of trade; infractions of 
 rules affecting commerce and carriers and 
 the like. These have been called commercial 
 crimes; such, for instance, as infractions of 
 the Sherman Anti-Trust Act. 
 
 As to state compensation to one unjustly 
 accused of crime, see Restitution. 
 
 See Continuing Offence; Letteb; In- 
 tent ; Prosecutor ; Criminal Law. 
 
 CRIME AGAINST NATURE. Sodomy or 
 buggery. Ausman v. Veal, 10 Ind. 355, 71 
 Am. Dec. 331. 
 
 CRIMEN FALSI. In Civil Law. A fraud- 
 ulent alteration, or forgery, to conceal or 
 alter the truth, to the prejudice of another. 
 This crime may be committed in three ways, 
 namely: by forgery; by false declarations 
 or false oath, — perjury; by acts, as by deal- 
 ing with false weights and measures, by al- 
 
 tering the current coin, by making false 
 keys, and the like; see Dig. 48. 10. 22; 34. 
 8. 2 ; Code 9. 22 ; 2. 5. 9. 11. 16. 17. 23. 24 ; 
 Merlin, Rupert.; 1 Bro. Civ. Law 426; 1 
 Phill. Ev. 2G; 2 Stark. Ev. 715. 
 
 At Common Law. Any crime which may 
 injuriously affect the administration of jus- 
 tice, by the introduction of falsehood and 
 fraud. Johnston v. Riley, 13 Ga. 97; Webb 
 v. State, 29 Ohio St. 351, 358; Harrison v. 
 State, 55 Ala. 239; U. S. v. Block, 4 Sawy. 
 211, Fed. Cas. No. 14,609. See Maxims (cri- 
 men falsi dicitur, etc.). 
 
 The meaning of this term at common law 
 is not well defined. It has been held to in- 
 clude forgery; 5 Mod. 74; perjury, suborna- 
 tion of perjury ; Co. Litt. 6 6 ; Comyns, Dig. 
 Testmoigne (A 5) ; suppression of testimony 
 by bribery or conspiracy to procure the ab- 
 sence of a witness ; Ry. & M. 434 ; conspiracy 
 to accuse of crime; 2 Hale, PI. Cr. 277; 2 
 Leach 496; 2 Dods. 191; barratry; 2 Salk. 
 690; the fraudulent making ,or alteration 
 of a writing, to the prejudice of another 
 man's right ; or of a stamp, to the prejudice 
 of the revenue; 4 Steph. Comm. (15th ed.) 
 119, citing 2 East P. C. Ch. xix, § 60. The 
 effect of a conviction for a crime of this 
 class is infamy, and incompetence to testify ; 
 Barbour v. Com., 80 Va. 288. Statutes some- 
 times provide what shall be such crimes. 
 
 CRIMEN L/ES/E MAJESTATIS. See Lje- 
 sa Majestas. 
 
 CRJMINA EXTRAORDINARY. In South 
 African Law. Certain crimes have been so 
 called by Voet and the classification is some- 
 times broadly used. They include interfer- 
 ing with another's marital rights, seducing a 
 girl, polluting streams, procuring abortion, 
 blackmail and many others. The classifica- 
 tion does not seem valuable. See 28 So. Afr. 
 L. J. 490. 
 
 CRIMINAL CONVERSATION. See Crim. 
 Con. 
 
 CRIMINAL INFORMATION. A criminal 
 suit brought, without interposition of a 
 grand jury, by the proper officer of the king 
 or state. Cole, Cr. Inf.; 4 Bla. Com. 398. 
 See Information. 
 
 CRIMINAL INTENT. The intent to com- 
 mit a crime ; malice, as evidenced by a crim- 
 inal act. Black, Diet. 
 
 CRIMINAL LAW. That branch of juris- 
 prudence which treats of crimes and offences. 
 From the very nature of the social com- 
 pact on which all municipal law is founded, 
 and in consequence of which every man, 
 when he enters into society, gives up part 
 of his natural liberty, result those laws 
 which, in certain cases, authorize the inflic- 
 tion of penalties the privation of liberty and 
 even the destruction of life with a view to 
 the future prevention of crime and to insur- 
 ing the safety and well-being of the public. 
 Salus populi suprema lea.
 
 CRIMINAL LAW 
 
 731 
 
 CRIMINAL LAW 
 
 The extreme importance of a knowledge 
 of the criminal law Is evident. For a mis- 
 take in point of law, which every person of 
 discretion not only may know but is hound 
 and presumed to know, is in criminal 
 no defence. Ignoraiifia eorum qua: quis 
 scire tenetur rum excusat. This law is ad- 
 ministered upon the principle that every one 
 must lie taken conclusively to know it with- 
 out proof that he does know it; per Tindal, 
 C. J., in 10 CI. & P. 210. See D. S. v. An- 
 thony, 13 Blatchf. 200, Fed. Cas. No. 14,459; 
 Hoover v. State, 5!» Ala. 57; State v. Good- 
 enow, Co Me. 30; State v. Halsted, :'.'•» N. .1. 
 L. 402. And this is true though the statute 
 making an act illegal is of so recent pro- 
 mulgation as to make it impossible to know 
 of its existence: Branch Bank at Mobile v. 
 Murphy, 8 Ala. 119; Heard v. Hoard, 8 Ga. 
 380; The Ann, 1 Gall. C. C. G2, Fed. Cas. No. 
 397. This doctrine has been carried so far 
 as to include the case of a foreigner charged 
 with a crime which was no offence in his 
 own country; 7 C. & P. 456; Russ. & R. 4. 
 See Sumner v. Beeler, 50 Ind. 341. 19 Am. 
 Rep. 718. And, further, the criminal law, 
 whether common or statute, is imperative 
 with reference to the conduct of individuals ; 
 so that, if a statute forbids or commands a 
 thing to be done, all acts or omissions con- 
 trary to the prohibition or command of the 
 statute are offences at common law, and or- 
 dinarily indictable as such; Hawk. PI. Cr. 
 bk. 2, c. 25, § 4; 8 Q. B. SS3. An offence 
 which may be the subject of criminal pro- 
 cedure is an act committed or omitted in 
 violation of a public law either forbidding 
 or commanding it ; U. S. v. Eaton, 144 U. S. 
 G77, 12 Sup. Ct. 7G4, 36 L. Ed. 591. 
 
 In seeking for the sources of our law up- 
 on this subject, when a statute punishes a 
 crime by its legal designation, without enu- 
 merating the acts which constitute it, then 
 it is necessary to resort to the common law 
 for a definition of the crime with its dis- 
 tinctions and qualifications. So if an act is 
 made criminal, hut no mode of prosecution 
 is directed or no punishment provided, the 
 common law furnishes its aid, prescribing 
 the mode of prosecution by indictment, and 
 as a mode of punishment, fine, and imprison- 
 ment. This is generally designated the com- 
 mon law of England; but it might now be 
 properly called the common law of this coun- 
 try. It was adopted by general consent when 
 our ancestors first settled here. So far, 
 therefore, as the rules and principles of the 
 common law are applicable to the adminis- 
 tration of criminal law and have not been 
 altered and modified by legislative enact- 
 ments or judicial decisions, they have the 
 same force and effect as laws formally enact- 
 ed; Tully v. Com., 4 Mete. (Mass.) 358; 
 Com. v. Chapman, 13 Mete. (Mass.) (V.). 
 "The common law of crimes Is at present 
 that jus vaium ct tncognitum against which 
 jurists and vindicators of freedom have 
 
 strenuously protested. It is to be observed 
 that the definitions of crimes, the nature of 
 punishments, and th of criminal pro- 
 
 cedure originated, for ti rt, in the 
 
 principles of the mo>t ai imon law. 
 
 but that most of the unwritten rules touch- 
 Lines have been modified b; 
 which assume the common-law terms and 
 definitions as if their import were familiar 
 to the community. The common .. 
 
 has, partly from humane and partly 
 from corrupt motives, been pre-eminently the 
 sport of judicial constructions. In t: 
 indeed, it was made for the state of things 
 that prevailed in this Island and the kind 
 
 ■ pie that inhabited it in the n - 
 Richard I.; in reality, it is the patchwork 
 
 ery judge in every reign, from I 
 do Lion to Victoria." Ruins of Time Ex- 
 emplified in Hale's Pleas of the Crown, by 
 Amos, Pref. x. 
 
 Some of the lending principles of the Eng- 
 lish and American system of criminal law 
 are — First. Every man is presumed to he in- 
 nocent until the contrary is shown; and if 
 there is any reasonable doubt of his guilt, 
 he is entitled to the benefit of the doubt. 
 See Mugler v. Kansas, 123 U. S. 623, 8 Sup. 
 Ct. 273, 31 L. Ed. 20:>. Second. In g< 
 no person can be brought to trial until a 
 grand jury on examination of the charge has 
 found reason to hold him for trial. Ex par- 
 te Bain, 121 U. S. 1, 7 Sup. Ct. 781, 30 L. Ed. 
 849. Third. The prisoner is entitled to trial 
 by a jury of his peers, who are chosen from 
 the body of the people with a view to Im- 
 partiality, and whose decision on questions 
 of fact is final. Fourth. The question of his 
 guilt is to be determined without reference 
 to his general character. By the systems of 
 continental Europe, on the contrary, the tri- 
 bunal not only examines the evidence 
 ing to the offence, but looks at the probabili- 
 ties arising from the prisoner's previous his- 
 tory and habits of life. Fifth. The prisoner 
 cannot be required to criminate himself. 
 (The general rule, however, now seems to 
 be in jurisdictions where there is no statu- 
 tory prohibition, that an accused person tes- 
 tifying in his own behalf may be cross-ex- 
 amined like any other witn Me v. 
 Tice, 131 N. Y. 651, 30 X. K. 194, 15 L. R. A. 
 GG9; People v. Howard. 7.". Mich. 10, 40 N. 
 W. 789; Boyle v. state. 105 Ind. 469, 5 X. E. 
 203, 55 Am. Hep. 218; Ke es v. State. 122 
 Ind. 527, 23 N. E. 1097; state v. Pfefferle, 
 36 Kan. 90, 12 Pac. 406; State v. Huff, 11 
 17; Chambers v. People, Hi.") 111. 413. 
 See for a full discussion of this question, 
 Rice. Ev. § 223 ami note: Counsel man v. 
 Hitchcock, 1 12 r. s. 547, 12 Sup. Ct. I 
 L. I'M. llio.i Sixth, lie cannot be twice put 
 in jeopardy for the same offence. See Sim- 
 mons v. U. S.. 142 U. S. 148, 12 Sup. Ct. 171. 
 35 L. Ed. 0i;S; In re Nielsen. 131 D. 8. 176, 
 Sup. Ct. 672, .".3 L. Ed. 118. Seventh, He 
 cannot be punished for an act which was
 
 CRIMINAL LAW 
 
 732 
 
 CRIMINATE 
 
 not an offence by the ' law existing at the 
 time of its commission ; nor can a severer 
 punishment be inflicted than was declared 
 by law at that time. 
 
 See Crime; Ignorance; Intent; Jeopar- 
 dy ; Infamous Crime ; Infamy ; Prisoner. 
 
 As to the identification of criminals, see 
 Anthropometry ; Rogue's Gallery. 
 
 As to circulating photographs of criminals, 
 to assist in detecting crime, see Privileged 
 Communications. 
 
 CRIMINAL LAW CONSOLIDATION 
 ACTS. Passed in England in 1861, for the 
 consolidation of the criminal law of England 
 and Ireland. 4 Steph. Com. 227. They are 
 a codification of the modern criminal law of 
 England. See Bruce's Archb. PI. & Ev. in 
 Cr. Ca. 1875. 
 
 CRIMINAL PROCEDURE. The method 
 pointed out by law for the apprehension, tri- 
 al, or prosecution, and fixing the punishment 
 of those persons who have broken or violat- 
 ed, or are supposed to have broken or violat- 
 ed, the laws prescribed for the regulation of 
 the conduct of the people of the community, 
 and who have thereby laid themselves liable 
 to fine or imprisonment, or both. A. & E. 
 Encyc. Law. See Procedure. 
 
 CRIMINAL PROCESS. Process which is- 
 sues to compel a person to answer for a 
 crime or misdemeanor. Ward v. Lewis, 1 
 Stew. (Ala.) 26. 
 
 CRIMINALITER. Criminally; on crimi- 
 nal process. 
 
 CRIMINATE. To exhibit evidence of the 
 commission of a criminal offence. 
 
 It is a rule that a witness cannot be com- 
 pelled to answer any question which has a 
 tendency to expose him to a penalty, or to 
 any kind of punishment, or to a criminal 
 charge ; 4 St. Tr. 6; Q id. 649 ; 10 How. St. 
 Tr. 1090; Johnson v. Goss, 2 Yerg. (Tenn.) 
 110; Grannis v. Branden, 5 Day (Conn.) 
 260, 5 Am. Dec. 143; Bellinger v. People, 8 
 Wend. (N. Y.) 598; Parry v. Almond, 12 
 S. & R. (Pa.) 284; State v. Quarles, 13 Ark. 
 307. Such a statement cannot be used to 
 show guilt and a confession must be free 
 and voluntary; In re Emery, 107 Mass. 180, 
 9 Am. Rep. 22. If a defendant offers him- 
 self as a witness to disprove a criminal 
 charge, he cannot excuse himself from an- 
 swering on the ground that by so doing he 
 may criminate himself; Spies v. People, 122 
 111. 235, 12 N. E. 865, 17 N. E. 898, 3 Am. St. 
 Rep. 320. See Incrimination. 
 
 An accomplice admitted to give evidence 
 against his associates in guilt is bound to 
 make a full and fair confession of the whole 
 truth respecting the subject-matter of the 
 prosecution; Com. v. Knapp, 10 Pick. (Mass.) 
 477, 20 Am. Dec. 534 ; 2 Stark. Ev. 12, note ; 
 but he is not bound to answer with respect 
 to his share in other offences, in which he 
 was not concerned with the prisoner ; People 
 
 v. Whipple, 9 Cow. (N. Y.) 721, note (a) ; 
 2 C. & P. 411. 
 
 CRIMINOLOGY. The science which treats 
 of crimes and their prevention and punish- 
 ment 
 
 CRIMP. One who decoys and plunders 
 sailors under cover of harboring them. 
 Wharton. 
 
 CRITICISM. The art of judging skilfully 
 of the merits or beauties, defects or faults, 
 of a literary or scientific composition, or of 
 a production of art. When the criticism is 
 reduced to writing, the writing itself is call- 
 ed a criticism. 
 
 Liberty of criticism must be allowed, or 
 there would be neither purity of taste nor 
 of morals. Fair discussion is essentially 
 necessary to the truth of history and the 
 advancement of literature and science. That 
 publication, therefore, is not a libel which 
 has for its object not to injure the reputa- 
 tion of an individual, but to correct misrep- 
 resentations of facts, to refute sophistical 
 reasoning, to expose a vicious taste for liter- 
 ature, or to censure that which is hostile to 
 morality ; 1 Campb. 351. As every man who 
 publishes a book commits himself to the 
 judgment of the public, any one may com- 
 ment on his performance ; if he does not step 
 aside from the work, or introduce fiction for 
 the purpose of condemnation, he exercises a 
 fair and legitimate right. The critic does a 
 good service to the public who writes down 
 any such vapid or useless publication as 
 should never have appeared; and, although 
 the author may suffer a loss from it, the 
 law does not consider such loss an injury ; 
 because it is a loss which the party ought to 
 sustain. It is the loss of fame and profit to 
 which he was never entitled; 1 Campb. 358, 
 n. See 1 Esp. 28; Stark. Lib. and SI. 228; 
 4 Bingh. N. S. 92 ; 3 Scott 340 ; 1 Mood. & M. 
 74, 187; Cooke, Def. 52; 20 Q. B. D. 275. 
 See Lieel; Slander. 
 
 CROFT. A little close adjoining a dwell- 
 ing-house, and enclosed for pasture and till- 
 age or any particular use. Jacob, Law Diet 
 A small place fenced off in which to keep 
 farm-cattle. Spelman, Gloss. 
 
 CROP. See Emblements ; Growing Crops ; 
 Away-Going Crop. 
 
 CROPPER. One who, having no interest 
 in the land, works it in consideration of re- 
 ceiving a portion of the crop for his labor. 
 Fry v. Jones, 2 Rawle (Pa.) 12; Harrison 
 v. Ricks, 71 N. C. 7. 
 
 CROSS. A mark made by a person who 
 is unable to write, instead of his name. 
 
 See Mark. 
 
 CROSS-ACTION. An action by a defend- 
 ant in an action, against the plaintiff in the 
 same action, upon the same contract, or for 
 the same tort. Thus, if Peter bring an ac- 
 tion of trespass against Paul, and Paul bring
 
 CROSS-ACTION 
 
 733 
 
 CROSS-BILL 
 
 another action of trespass against Peter, the 
 subject of the dispute being an assault and 
 battery, it is evident that Paul could not set 
 off the assault committed upon him by Peter, 
 In the action which Peter had brought 
 against him; therefore a cross-action be- 
 comes necessary. 10 Ad. & E. 043. 
 
 CROSS- APPEAL. Where both parties to 
 a judgment appeal therefrom, the appeal of 
 each is called a cross-appeal as regards that 
 of the other. 3 Steph. Com. 581. 
 
 CROSS-BILL. One which is brought by a 
 defendant in a suit against a plaintiff in or 
 against other defendants in the same suit, or 
 against both, touching the matters in ques- 
 tion in the original bill. Story, Bq. PI. § 
 389; Mitf. Eq. PL 80. It is brought either 
 to obtain a discovery of facts, in aid of the 
 defence to the original bill, or to obtain full 
 and complete relief as to the matters charg- 
 ed in the original bill ; Avers v. Carver, 
 17 How. (U. S.) 595, 15 L. Ed. 170. 
 
 It is- considered as a defence to the origi- 
 nal bill, and is treated as a dependency up- 
 on the original suit; 1 Eden, Inj. 190; 3 Atk. 
 312; 19 E. L. & Eq. 325; Cockrell v. Warner, 
 14 Ark. 346; McDougald v. Dougherty, 14 
 Ga. 074; Slason v. Wright, 14 Vt. 208; Nel- 
 son v. Dunn, 15 Ala. 501 ; Kidder v. Barr, 35 
 N. II. 251. It is usually brought either to 
 obtain a necessary discovery, as, for exam- 
 ple, where the plaintiffs answer under oath 
 is desired ; 3 Swanst. 474 ; 3 Y. & C. 594 ; 2 
 Cox, Ch. 109 ; or to obtain full relief for all 
 parties, since the defendant in a bill could 
 originally only pray for a dismissal from 
 court, which would not prevent subsequent 
 suits ; 1 Yes. 284 ; 2 Sch. & L. 9, 144 ; Speer 
 v. Whitfield, 10 N. J. Eq. 107; Jones v. 
 Smith, 14 111. 229; Bullock v. Brown, 20 Ga. 
 472; or where the defendants have conflict- 
 ing interests; Pattison v. Hull, 9 Cow. (N. 
 Y.) 747; Armstrong v. Pratt, 2 Wis. 2!)9 ; 
 but may not introduce new parties; Shields 
 v. Barrow, 17 How. (U. S.) 130, 15 L. Ed. 
 158; unless affirmative relief is demanded 
 and justice so requires; Brooks v. Applegate, 
 37 W. Va. 376, 16 S. E. 585. New parties 
 cannot be brought in by a cross-bill ; if the 
 defendant's interest requires their presence, 
 he should object for non-joinder and compel 
 plaintiff to amend; Patton v. Marshall, 173 
 Fed. 350, 97 C. C. A. 610, 26 L. E. A. (N. S.) 
 127. It is also used for the same purpose as 
 a plea puis darrein continuance at law ; 2 
 Ball & B. 140; 2 Atk. 177, 553; Baker v. 
 Whiting, 1 Sto. 218, Fed. Cas. No. 7SG. 
 
 It should state the original bill, and the 
 proceedings thereon, and the rights of the 
 party exhibiting the bill which are neces- 
 sary to be made the subject of a cross-liti- 
 gation, on the grounds on which he resists 
 the claims of the plaintiff in the original 
 bill, if that is the object of the new bill; 
 Mitf. Eq. PL 81 ; and it should not introduce 
 
 new and distinct matters; Gallatian y. Cun- 
 ningham, B Cow. (N. Y.) 301. 
 
 It should be brought before publication; 
 Sterry v. Arden, 1 Johns. Cii. I N. Y. 
 Josey v. Rogers, 13 Ga. 47b; and not after, 
 — to avoid perjury; Field v. iu, 7 
 
 Johns. Ch. (N. Y.) 250; Nelson 103. 
 
 In England it need not be brought before 
 the same court; Mitf. Eq. PL 81. For the 
 rule in the United States, see Carnochan v. 
 Christie, 11 Wheat. (U. SO 41"., 6 L. Ed. 
 516; Story, Eq. PL § 401; Dan. Ch. PL & IT. 
 L549. 
 
 The granting or refusing permission t" 
 file a cross-bill is largely in the di>< r< 
 of the court; Huff v. Bidwell, 151 Fed- ■"<;:;. 
 81 C. C. A. 43. 
 
 Under the Equity Rules of Supreme Court 
 of United States (Feb. 1, 1913), matter 
 er for a crossbill may be set up in the an- 
 swer, with the same effect Rule 30 (33 
 Sup. Ct. xxvi). 
 
 CROSS-COMPLAINT. This is allowed 
 when a defendant: has a cause of action 
 against a co-defendant, or a person not a 
 party to the action, and affecting the sul<- 
 ject-matter of the action. The only real dif- 
 ference between a complaint and a i 
 complaint, is, that the first is filed by the 
 plaintiff and the second by the defendant. 
 Both contain a statement of the facts, and 
 such demands affirmative relief upon the 
 facts stated. The difference between a 
 counter-claim and a cross-complaint is that 
 in the former the defendant's cause of ac- 
 tion is against the plaintiff; and the latter, 
 against a co-defendant, or one not a party 
 to the action; White v. Reagan, 32 Ark. 290. 
 CROSS-DEMAND. A demand is so called 
 which is preferred by B, in opposition to one 
 already preferred against him by A. 
 
 CROSS-ERRORS. Errors assigned by the 
 respondent in a writ of error. 
 
 CROSS-EXAMINATION. The examina- 
 tion of a witness by the party opposed to 
 the party who called him, and who examined, 
 or was entitled to examine him in chief. 
 
 The purpose of the cross-examination is to 
 test the truthfulness, intelligence, memory, 
 bias or interest of the witness, and any 
 question to that end within reason is usually 
 allowed; Briggs v. People, 219 111. 3! 
 X. E. 499; Real v. People, 42 N. Y. 270; 
 Wroe v. State, 20 Ohio St 400. 
 
 In England and some of the states, when 
 a competent witness is called and sworn, the 
 other party is ordinarily entitled to cr< 
 amine him as to matters not covered by the 
 direct examination; 1 Esp. 357; Moody v. 
 Rowell. 17 Pick. (Mass.) -h><>. 28 Am. Dec. 
 317; Varick v. Jackson. 2 Wend. (N. Y.i 166, 
 19 Am. Dec. 571 : Fulton Bank v. Stafford, 2 
 Wend. (X. Y.) 4S3 ; Aiken v. CatO, 23 Ga. 
 154; Mask v. State. 32 Miss. 405; see 3 C 
 & P. 10; 2 M. & R. 273; Aiken v. Cato, 23
 
 CROSS-EXAMINATION 
 
 734 
 
 CROSS-EXAMINATION 
 
 Ga. 154 ; but see Swift v. Ins. Co., 122 Mass. 
 578; but it is held iu other states and in 
 the federal courts that the cross-examina- 
 tion must be confined to facts connected with 
 the direct examination ; Harrison v. Rowan, 
 3 Wash. C. C. 5S0, Fed. Cas. No. 0,141 ; Phil- 
 adelphia & Trenton R. Co. v. Sthnpson, 14 
 Pet. (U. S.) 44S, 10 L. Ed. 535 ; Elhnaker v. 
 Buckley, 10 S. & R. (Pa.) 77 ; Floyd v. Bo- 
 vard, 6 W. & S. (Pa.) 75; Donnelly v. State, 
 20 N. J. Law, 403; Landsberger v. Gorham, 
 5 Cal. 450; Cokely v. State, 4 la. 477; Pear- 
 son v. Hardin, 95 Mich. 300, 54 N. W. 904; 
 Hansen v. Miller, 145 111. 53S, 32 N. E. 548; 
 In re Westerfield, 90 Cal. 113, 30 Pac. 1104 ; 
 Winkler v. Roeder, 23 Neb. 700, 37 N. W. 007, 
 8 Am. St. Rep. 155 ; Fulton v. Bank, 92 Pa. 
 112; Monongahela Water Co. v. Stewartson, 
 90 Pa. 430. It may extend to every fact 
 which is part of the plaintiff's case, but not 
 to matter of defense ; Smith v. Philadelphia 
 Traction Co., 202 Pa. 54, 51 Atl. 345; New 
 York Iron Mine v. Bank, 39 Mich. 044 ; af- 
 firmative defenses cannot be introduced on 
 cross-examination; McCrea v. Parsons, 112 
 Fed. 917, 50 C. C. A. 012. 
 
 Inquiry may be made in regard to collat- 
 eral facts in the discretion of the judge; 7 
 C. & P. 3S9; Lawrence v. Barker, 5 W T end. 
 (N. T.) 305; Huntsville Belt Line & Monte 
 Sano Ry. Co. v. Corpening & Co., 97 Ala. 681, 
 12 South. 295; but not merely for the pur- 
 pose of contradicting the witness by other 
 evidence ; 7 C. & P. 789 ; Com. v. Buzzell, 16 
 Pick. (Mass.) 157; Ware v. Ware, 8 Greenl. 
 (Me.) 42. And see Howard v. Ins. Co., 4 
 Denio (N. Y.) 502 ; State v. Patterson, 24 N. 
 C. 340, 38 Am. Dec. 099; Philadelphia & T. 
 R. Co. v. Stimpson, 14 Pet (U. S.) 401, 10 L. 
 Ed. 535. Considerable latitude should be al- 
 lowed in cross-examining witnesses as to val- 
 ue, in order that the ground of their opinion 
 may appear ; Phillips v. Inhabitants of Mar- 
 blehead, 148 Mass. 320, 19 N. E. 547. 
 
 A written paper identified by the witness 
 as having been written by him may be intro- 
 duced in the course of cross-examination as 
 a part of the evidence of the party produc- 
 ing it, if necessary for the purposes of the 
 cross-examination; 8 C. & P. 369. A wit- 
 ness may be asked whether he has not made 
 previous statements contradictory to his pres- 
 ent testimony; People v. Walker, 140 Cal. 
 153, 73 Pac. 831; Dillard v. U. S., 141 Fed. 
 303, 72 C. C- A. 451 ; but he must be given a 
 chance to explain; Rice v. Rice, 43 App. 
 Div. 458, 00 N. Y. Snpp. 97. Where the 
 statement about, which he is asked is in writ- 
 ing, it is necessary that his attention be call- 
 ed to the writing and if he denies that he 
 made such statement, the writing must be 
 proved in the ordinary way; Gaffney v. Peo- 
 ple, 50 N. Y. 410. In Queen Caroline's Case, 
 2 B. & B. 280, it was held that on cross-ex- 
 amination counsel is not allowed to repre- 
 sent in the statement of a question the con- 
 tents of a letter and to ask the witness 
 
 whether the witness wrote a letter to any 
 person with such contents, or contents to the 
 like effect, without first having shown the 
 letter to the witness and asked whether he 
 wrote such letter. This is commonly spoken 
 of as the rule in the Queen's Case. It is 
 severely and ably criticised in Wigmore, Ev- 
 idence 1259-1203. In England it was unan- 
 imously condemned by the bar, and in 1S54 a 
 statute was passed which abolished it. In 
 the United States it was adopted in People 
 v. Lambert, 120 Cal. 170, 52 Pac. 307; Sim- 
 mons v. State, 32 Fla. 3S7, 13 South. S9G; 
 Taylor v. State, 110 Ga. 150, 35 S. E. 101; 
 Momence Stone Co. v. Groves, 197 111. 8S, 04 
 N. E. 335; Glenn v. Gleason, 61 la. 28, 15 
 N. W. 659; Hendrickson v. Com. (Ky.) 64 S. 
 W. 954 ; State v. Cain, 100 La. 708, 31 South. 
 300; O'Riley v. Clampet, 53 Minn. 539, 55 
 N. W. 740; Story v. State, 08 Miss. 009, 10 
 South. 47; State v. Matthews, 88 Mo. 121; 
 Omaha Loan & Trust Co. v. Douglas County, 
 02 Neb. 1, 80 N. W. 930; Haines v. Ins. Co., 
 52 N. H. 407; Gaffney v. People, 50 N. Y. 423 ; 
 State v. Steeves, 29 Or. 85, 43 Pac. 947; 
 Kann v. Bennett, 223 Pa. 36, 72 Atl. 342; 
 Chicago, M. & St. P. Ry. Co. v. Artery, 137 
 U. S. 520, 11 Sup. Ct. 129, 34 L. Ed. 747; 
 Kalk v. Fielding, 50 Wis. 339, 7 N. W. 290; 
 Mr. Wigmore thinks that its repudiation in 
 England was not known at the time of its 
 early adoption here. 
 
 A cross-examination as to matters not oth- 
 erwise admissible in evidence entitles the 
 party producing the witness to re-examine 
 him as to those matters; 3 Ad. & E. 554; 
 Stuart v. Baker, 17 Tex. 417. If the defend- 
 ant be permitted on cross-examination to 
 bring out new matter, constituting his own 
 ease, which he had not opened to the jury, 
 to the injury of the plaintiff, it may be 
 ground for reversal ; Thomas & Sons v. 
 Loose, Seaman & Co., 114 Pa. 35, 6 Atl. 326 ; 
 Hughes v. Coal Co., 104 Pa. 207. 
 
 Leading questions may be put in cross-ex- 
 amination; 1 Stark. Ev. 90; Floyd v. Bo- 
 vard, W. & S. (Pa.) 75; Moody v. Rowell, 
 17 Pick. (Mass.) 490, 28 Am. Dec. 317. 
 
 The trial court has not such a discretion 
 as to the scope of cross-examination of the 
 defendant in a criminal cause as in the ex- 
 amination of other witnesses; People v. 
 O'Brien, 90 Cal. 171, 31 Pac. 45. See State v. 
 Wright, 40 La. Ann. 589, 4 South. 480. 
 
 A refusal to permit cross-examination as 
 to relevant matters brought out in direct ex- 
 amination is usually ground for reversal; 
 Prout v. Bernards Land & Sand Co., 77 N. J. 
 L. 719, 73 Atl. 4SG, 25 L. R. A. (N. S.) 083, 
 note; Eames v. Kaiser, 142 U. S. 4S8, 12 
 Sup. Ct. 302, 35 L. Ed. 1091 ; Graham v. Lari- 
 mer, 83 Cal. 173, 23 Pac. 280. A full and fair 
 cross-examination is a matter of right and 
 a denial of it is error ; after such has been 
 allowed, further cross-examination becomes 
 discretionary; Ressurrection Gold Min. Co. 
 v. Fortune Min. Co., 129 Fed. 668, 64 C. C.
 
 CROSS-EXAMINATION 
 
 735 
 
 CRUELTY 
 
 A. 180 ; City of Florence v. Calmet, 43 Colo. 
 510, 96 Pac. 183. 
 
 It is improper for a trial judge to cross- 
 examine defendant's witnesses in such a 
 manner as to impress the jury with the idea 
 that he thinks the defendant guilty. If he 
 participates in the cross-examination, he 
 should do it in such a way as to indicate his 
 entire impartiality ; Adler v. U. S., 182 Fed. 
 4G4, 104 C. C. A. G08. 
 
 CROSS-REMAINDER. Where a particu- 
 lar estate is conveyed to several persons in 
 common, or various parcels of the same land 
 are conveyed to several persons in severalty, 
 and upon the termination of the Interest of 
 either of them his share is to go in remainder 
 to the rest, the remainders so limited over 
 are said to be cross-remainders. In deeds, 
 such remainders cannot arise without ex- 
 press limitation. In wills, they frequently 
 arise by implication; 1 Prest. Est. 94; 2 
 miliard, R. P. 44 ; 4 Kent 201; Chal. R. P. 
 241. 
 
 CROSS-RULES. Rules entered whore 
 each of the opposite litigants obtained a rule 
 nisi, as the plaintiff to increase the damages, 
 and the defendant to enter a nonsuit, Whar- 
 ton. 
 
 CROSSED-CHECK. See Check. 
 
 CROSSING. See Grade Crossing. 
 
 CROWN. In England. A word often used 
 for the sovereign. As to the Crown as a cor- 
 poration, see Maitland, 16 L. Q. R. 335, 17 
 id. 131. 
 
 See Demise of tite Crown. 
 
 CROWN CASES RESERVED. See Court 
 for Consideration of Crown Case3 Re- 
 served. 
 
 CROWN DEBTS. Debts due to the crown, 
 which are put, by various statutes, upon a 
 different footing from those due to a sub- 
 ject. 
 
 CROWN LANDS. The demesne lands of 
 the crown. 2 Steph. Com. 534. 
 
 CROWN LAW. In England. Criminal 
 law, the crown being the prosecutor. 
 
 CROWN OFFICE. The criminal side of 
 the court of king's bench. The king's attor- 
 ney in this court is called master of the 
 crown office. 4 Bla. Com. 308. 
 
 CROWN SIDE. The criminal side of the 
 court of king's bench. Distinguished from 
 the pleas side, which transacts the civil busi- 
 ness. 4 Bla. Com. 265. 
 
 CROWN SOLICITOR. In England. The 
 solicitor to the treasury. 
 
 CRUEL AND UNUSUAL PUNISHMENT. 
 
 See Punishment. 
 
 CRUELTY. As between husband and wife. 
 See Legal Cruelty. 
 Cruelty towards weak and helpless persons 
 
 takes place where a party bound to provide 
 for and protect them either abuses them by 
 whipping them unnecessarily, or by neglect- 
 ing to provide for them those n< 
 which their helpless condition requires. Ex- 
 posing a person of tender years, under one's 
 care, to the inclemency of the weather; 2 
 Campb. 650; keeping such a child, unable to 
 provide for himself, without adequate food; 
 1 Leach 137; Russ. & R. 20; or an ovei 
 neglecting to provide food and medical care 
 to a pauper having urgent and immediate oc- 
 casion for them; Rosa & EL 46; are ex- 
 amples of this spcies of cruelty. 
 
 In many of the principal cities, beginning 
 with New York, in April, 1875, societies for 
 the prevention of cruelty to children have 
 been formed, authorized to prosecute persons 
 who maltreat children, or force them to pur- 
 sue improper and dangerous employments; 
 N. Y. Act of April 21, 1875; Delafield on 
 Children, 1876. Stat. 42 & 43 Yict c. 34 reg- 
 ulates certain employments for children. By 
 the act of Congress of February 13, 18S5, the 
 association for the prevention of cruelty to 
 animals for the District of Columbia, was 
 authorized to extend its operation, under 
 the name of the Washington Humane Socie- 
 ty, to the protection of children as well as 
 animals from cruelty and abuse, and the 
 agents of the society have power to prefer 
 complaints for the violation of any law re- 
 lating to or affecting the protection of chil- 
 dren. They may also bring before the court 
 any child who is subjected to cruel treat- 
 ment, abuse or neglect, or any child under 
 sixteen years of age found in a house of ill- 
 fame, and the court may commit such child 
 to an orphan asylum or other public char- 
 itable institution, and any person wilfully or 
 cruelly maltreating, or wrongfully employ- 
 ing such child, is liable to punishment 23 
 Stat. L. 302. 
 
 Cruelly to animals is an indictable offence. 
 A defendant was convicted of a misdemeanor 
 for tying the tongue of a calf so near the 
 root as to prevent its sucking, in order to 
 sell the cow at a greater price, by giving to 
 her udder the appearance of being full of 
 milk while affording the calf all it needed; 
 Morris & Clark's Cases, 6 City H. Rec. (N. 
 Y.) 62. A man may be indicted for cruelly 
 beating his horse; U. S. v. Jackson, 4 Cra. 
 C. C. 483, Fed. Cas. No. 15,453; 9 L. T. R. 
 (N. S.) 175; Com. v. Lufkin, 7 Allen (Mass.) 
 579; 3 B. & S. 382; State v. Avery. 44 N. H. 
 392; Collier v. State, 4 Tex. App. 12: Uecker 
 v. State. 4 Tex. App. 234; State v. Bogardus, 
 4 Mo. App. 215: State v. Haley, 52 Mo. App. 
 520; Swartzbangh v. People. S5 111. 457; Com. 
 v. Curry, 150 Mass. 509, 23 N. E. 212; See 
 Com. v. McClellan, 101 Mass. 34; State v. 
 Porter, 112 N. C. 8S7, 16 S. E. 915 ; Tinsley 
 v. State (Tex.) 22 S. W. 39; or for cruel 
 treatment of a hen ; State v. Neal. 120 N. 
 C. 613, 27 S. E. 81, 58 Am. St Rep. 810.
 
 CRUELTY 
 
 736 
 
 CUI IN VITA 
 
 Under 12 and 13 Vict. c. 92, § 2, dishorn- 
 ing cattle is not an offence where the opera- 
 tion is skilfully performed ; 16 Cox, Cr. Cas. 
 101. This practice is allowed in Pennsyl- 
 vania ; Act Pa. 1895, June 25, P. L. 2SG. In 
 Massachusetts it was held that a fox is an 
 animal in the sense of the statute, and a 
 person letting loose a captive fox to be sub- 
 jected to unnecessary suffering (for the pur- 
 pose of being hunted by dogs) was liable to 
 punishment ; Com. v. Turner, 145 Mass. 296, 
 14 N. E. 130. 
 
 Malice toward the owner is not an ingredi- 
 ent of the offense created by a statute pro- 
 viding for the punishment of every person 
 who shall wilfully and maliciously maim the 
 horse of another; People v. Tessmer, 171 
 Mich. 522, 41 L. R. A. (N. S.) 433, 137 N. W. 
 214. 
 
 CRUISE. A voyage or expedition in quest 
 of vessels or fleets of the enemy which may 
 be expected to sail in any particular track 
 at a certain season of the year. The region 
 in which these cruises are performed is usu- 
 ally termed the rendezvous, or cruising-lat- 
 itude. 
 
 When the ships employed for this purpose, 
 which are accordingly called cruisers, have 
 arrived at the destined station, they traverse 
 the sea backwards and forwards, under an 
 easy sail, and within a limited space, con- 
 jectured to be in the track of their expected 
 adversaries. Wesk. Ins. ; Lex Merc. Red. 
 271, 284; Dougl. 509; Marsh. Ins. 196, 199, 
 520 ; The Brutus, 2 Gall. 526, Fed. Cas. No. 
 2,060. 
 
 CRY DE PAYS, CRY.DE PAIS. A hue 
 and cry raised by the country. This was ab 
 lowable in the absence of the constable when 
 a felony had been committed. 
 
 CRYER. See Crier. 
 
 CUCKING-STOOL. An engine or machine 
 for the punishment of scolds and unquiet 
 women. 
 
 Called also a trebucket, tumbrel, and castigatory. 
 Bakers and brewers were formerly also liable to the 
 same punishment. Being fastened in the machine, 
 they were immersed over head and ears in some 
 pool; Blount; Co. 3d Inst. 219; 4 Bla. Com. 168. 
 
 CUI ANTE DIVORTIUM (L. Lat The full 
 phrase was, Cui ipsa ante divortium contra- 
 dicere non potuit, whom she before the di- 
 vorce could not gainsay). A writ which an- 
 ciently lay in favor of a woman who had 
 been divorced from her husband, to recover 
 lands and tenements which she had in fee- 
 simple, fee-tail, or for life, from him to 
 whom her husband had aliened them during 
 marriage, when she could not gainsay it; 
 Fitzh. N. B. 240; 3 Bla. Com. 183, n.; Stearns, 
 Real Act 143; Booth, Real Act. 188. Abol- 
 ished in 1833. 
 
 CUI IN VITA (L. Lat. The full phrase 
 was, Cui in vita sua ipsa contradicere non 
 potuit, whom in his lifetime she could not 
 
 gainsay). A writ of entry which lay for a 
 widow against a person to whom her husband 
 had in his lifetime aliened her lands. Fitzh. 
 N. B. 193. It was a method of establishing 
 the fact of death, being a trial with wit- 
 nesses, but without a jury. The object of 
 the writ was to avoid a judgment obtained 
 against the husband by confession or default. 
 It is obsolete in England by force of 32 Hen. 
 VIII. c. 28, §> 6. See 6 Co. 8, 9. As to its 
 use in Pennsylvania, see 3 Binn. Appx. ; Rep. 
 Comm. on Penn. Civ. Code, 1835, 90. Abol- 
 ished in England, 1833. Blackstone is said 
 to have shown little knowledge of its his- 
 tory; Thayer, Evidence. 
 
 CUL DE SAC (Fr. bottom of a bag). A 
 street which is open at one end only. 
 
 It may be a highway; L. R. 16 Ch. Div. 
 449 ; Bartlett v. Bangor, 67 Me. 460 ; Adams 
 v. Harrington, 114 Ind. 66, 14 N. E. 603; 
 Penick v. Morgan County, 131 Ga. 385, 62 
 S. E. 300 ; L. R. 16 Eq. 108. The earlier au- 
 thorities are generally to the contrary. See 
 11 East 376, note ; 5 Taunt. 137 ; 5 B. & Aid. 
 454; Holdane v. Village of Cold Spring, 23 
 Barb. (N. Y.) 103 ; Hawk. PI. Cr. b. 1, c. 76, 
 s. 1 ; Dig. 50. 16. 43 ; 43. 12. 1. § 13 ; 47, 10, 15, 
 § 7. It may be said that prima facie it is 
 not a highway; see 18 Q. B. 870; State v. 
 Gross, 119 N. C. 868, 26 S. E. 91. 
 
 CULPA. A fault; negligence. Jones, 
 Bailm. 8. 
 
 Culpa is to be distinguished from dolus, the latter 
 being a trick for the purpose of deception, the for- 
 mer merely a negligence. There are three degrees 
 of culpa: lata culpa, gross fault or neglect; levis 
 culpa, ordinary fault or neglect ; levissima culpa, 
 slight fault or neglect; and the definitions of these 
 degrees are precisely the same as those in our law. 
 Story, Bailm. § 18; Waltham Bank v. Wright, 8 
 Allen (Mass.) 122 ; Woodman v. Nottingham, 49 N. 
 H. 387, 6 Am. Rep. 526. See Negligence. 
 
 CULPABLE. This means not only crim- 
 inal but censurable; and when the term is 
 applied to the omission by a person to pre- 
 serve the means of enforcing his own rights, 
 censurable is more nearly equivalent As he 
 has merely lost a right of action which he 
 might voluntarily relinquish, and has wrong- 
 ed nobody but himself, culpable neglect would 
 seem to convey the idea of neglect for which 
 he was to blame and is ascribed to his own 
 carelessness, improvidence or folly. Wal- 
 tham Bank v. Wright, 8 Allen (Mass.) 122. 
 
 CULPRIT. A person who is guilty, or sup- 
 posed to be guilty, of a crime. 
 
 When a prisoner is arraigned, and he pleads not 
 guilty, in English practice, the clerk, who arraigns 
 him on behalf of the crown, replies that the prisoner 
 is guilty, and that he is ready to prove the accusa- 
 tion.. This is done by writing two monosyllabic ab- 
 breviations,— cul. prit. 4 Bla. Com. 339; 1 Chit. Cr. 
 Law 416. See Christian's note to Bla. Com. cited ; 
 3 Sharsw. Bla. Com. 340, n. 9. The technical mean- 
 ing has disappeared, and the compound is used in 
 the popular sense as above given. 
 
 CULVERTAGE. A base kind of slavery. 
 The confiscation or forfeiture which takes
 
 CULVERTAGE 
 
 737 
 
 CUMULATIVE SENTENCE 
 
 place when a lord seizes his tenant's estate. 
 Blount ; Du Cange. 
 
 CUM ONERE (Lit). With the burden; 
 subject to the Incumbrance; subject to the 
 charge. A purchaser with knowledge of an 
 incumbrance takes the property cum onere. 
 Co. Litt 231a; 7 East 164. 
 
 CUM TESTAMENTO ANNEXO (Lat). 
 With the will annexed. The term is applied 
 to administration when there is no executor 
 named in a will, or if he who is Darned Is in- 
 capable of acting, or where the executor 
 named refuses to act. If the executor has 
 died, an administrator de bonis non cum tes- 
 tamento annexe- (of the goods not [already] 
 administered upon with the will annexed) is 
 appoiuted. Often abbreviated d. b. n. c. t. a. 
 
 CUMULATIVE EVIDENCE. That which 
 goes to prove what has already been estab- 
 lished by other evidence. Waller v. Graves, 
 20 Conn. 305; Glidden v. Dnnlapj 28 Me. 
 379 ; Parker v. Hardy, 24 Pick. (Mass.) 246 ; 
 ParshaU v. Klinck, 43 Barb. (N. Y.) 203; 
 Able & Co. v. Frazier, 43 Iowa, 175. 
 
 Newly discovered evidence, if cumulative 
 merely, is not sufficient ground for a new 
 trial; Hill v. Helman, 33 Neb. 731, 51 N. W. 
 128; Johnson v. Palmour, 87 Ga. 244, 13 S. 
 E. 637; White v. Ward, 35 W. Va. 418, 14 
 S. E. 22 ; Link v. R. Co., 3 Wyo. 6S0, 29 Pac. 
 741 ; Louisville, N. O. & T. By. Co. v. Cray- 
 ton, 69 Miss. 152, 12 South. 271; Davis v. 
 Mann, 43 111. App. 301. 
 
 CUMULATIVE LEGACY. See Legacy. 
 
 CUMULATIVE REMEDY. A remedy cre- 
 ated by statute in addition to one which still 
 remains in force. 
 
 CUMULATIVE SENTENCE. A second or 
 additional judgment given against one who 
 has been convicted, the execution or effect of 
 which is to commence after the first has ex- 
 pired. Clifford v. Dryden, 31 Wash. 545, 72 
 Pac. 96. 
 
 Thus, where a man is sentenced to an imprison- 
 ment for six months on conviction of larceny, and 
 afterwards he is convicted of burglary, he may be 
 sentenced to imprisonment for the latter, to com- 
 mence after the expiration of the first imprison- 
 ment: this is called a cumulative judgment. And if 
 the former sentence is shortened by a pardon, or 
 by reversal on writ of error, it expires, and the 
 subsequent sentence takes effect, as if the former 
 had expired by lapse of time; Kite v. Com., 11 Mete. 
 (Mass.) 581. Where an indictment for misdemeanor 
 contained four counts, the third of which was held 
 on error to be bad in substance, and the defendant, 
 being convicted on the whole indictment, was sen- 
 tenced to four successive terms of imprisonment of 
 equal duration, held that the sentence on the fourth 
 count was not Invalidated by the insufficiency of the 
 third count, and that the imprisonment on it was 
 to be computed from the end of the imprisonment 
 on the second count; 15 Q. B. 591. 
 
 Upon an indictment for misdemeanor containing 
 two counts for distinct offences, the defendant may 
 be sentenced to imprisonment for consecutive terms 
 of punishment, although the aggregate of the pun- 
 ishments may exceed the punishment allowed by 
 law for one offence, and this rule is in many states 
 prescribed by statute; 1 Bish. New Crim. Proc. § 
 1327 (2) ; Whart. Cr. PI. & Pr. § 932; In re White, 
 
 Bouv.— 47 
 
 50 Kan. 299, 32 Pac. 36; In re Walsh, 37 Neb. 454, 
 55 N. W. 1075; In re Wilson, 11 Utah, 114, 39 Pac. 
 498. But it may in some cases be the means of per- 
 petrating great injustice. See O'Neil v. Vermont, 
 144 U. S. 323, 12 Sup. Ct. 693, 36 L. Ed. 450. where a 
 justice of the peace imposed a fine of §0038, and on 
 failure to pay it, a sentence of nearly 6u years' im- 
 prisonment, for selling lntoxcating liquors. The 
 Supreme Court of the United States refused to inter- 
 fere. See 31 Am. L. Reg. 619. 
 
 In the absence of a statute, it is generally held 
 that the court has power to impose cumulative sen- 
 tences upon conviction under separate indictments 
 for separate offences, the imprisonment under one 
 to commence at the termination of that under the 
 other; Howard v. U. S., 75 Fed. 986, 21 C. C. A. 686, 
 34 L. R. A. 509, 43 U. S. App. 678; Simmons v. Coal 
 Co., 117 Ga. 315, 43 S. E. 780, 61 L. R. A. 739 ; In re 
 Breton, 93 Me. 39, 44 Atl. 1:5, 74 Am. St. Rep. 335 ; 
 Rigor v. State, 101 Md. 4G5, 61 Atl. 631, 4 Ann. Cas. 
 719; State v. Hamby, 126 N. C. 1066, 35 S. E. 614; 
 Cuntra, Ex parte Meyers, 44 Mo. 279; Lockwood V. 
 Dills, 74 Ind. 57. A statute giving this authority It 
 ex post facto; Baker v. State, 11 Tex. App. 262; 
 where a court imposes sentences exceeding, in the 
 aggregate, its jurisdiction, only the excess is void ; 
 Harris v. Lang, 27 App. D. C. 84, 7 L. R. A. (X. S.i 
 124, 7 Ann. Cas. 141. If the second conviction of 
 three is erroneous, the third at once follows the 
 first; U. S. v. Carpenter. 151 Fed. 214, 81 C. C. A. 
 194, 9 L. R. A. (N. S.) 1043, 10 Ann. Cas. 509. 
 
 Upon an Indictment for perjury charging offences 
 committed in different suits, the defendant, upon 
 conviction, may be sentenced to distinct punish- 
 ments, although the suits were instituted with a 
 common object ; 6 Q. B. Div. 490. 
 
 Where, upon trial of an Indictment — containing 
 several counts — charging separate and distinct mis- 
 demeanors, identical in character, a general verdict 
 of guilty is rendered, or a verdict of guilty upon 
 two or more specified counts, the court has no power 
 to impose a sentence or cumulative sentences ex- 
 ceeding in the aggregate what is prescribed by stat- 
 ute as the maximum punishment for one offence of 
 the character charged ; People v. Liscomb, 60 N. 
 Y. 559, 19 Am. Rep. 211 ; but this case is said to 
 stand alone. See 1 Bish. New Cr. Proc. 5 lo. 
 6 App. Cas. 241. 
 
 CUMULATIVE VOTING. A method of 
 voting in which a voter, in voting for a 
 class of officers, can distribute his votes 
 among the candidates in such proportion as 
 he sees fit It does not exist except by a con- 
 stitutional or statutory provision ; State v. 
 Stockley, 45 Ohio St 304, 13 N. E. 279 ; this 
 appears to be the settled rule ; the cases 
 found in the books are. all on statutory pro- 
 visions. 
 
 The right of a stockholder to vote cumu- 
 latively cannot be exercised on a shr-ie prop- 
 osition, such as a question of adjourn 
 Bridgets v. Staton, 150 N. C. 216, < - ,:; S. E. 
 892; the motives in exercising this right can- 
 not be Inquired into; Chicago Macaroni Mfg. 
 Co. v. Boggiano, 2o2 111. .".12, 67 N. E. 17. 
 The law providing for cumulative voting of 
 stock Is not applicable fo an election of man- 
 agers of a partnership association; Attorney 
 General v. McVichie, 138 Mich. 387, 101 N. 
 W. 552. 
 
 CUNEATOR. A coiner. Du Cange. Cun- 
 care, to coin. Cuveus, the die with which 
 to coin. Cuneata, coined. Du Cange; Spel- 
 man. Gloss. 
 
 CUR. 
 
 VULT. 
 
 ADV. VULT. See Cubia Advisabe
 
 CURATE 
 
 738 
 
 CURATItlX 
 
 CURATE. One who represents the incum- 
 bent of a church, parson or vicar, and takes 
 care of the church and performs divine serv- 
 ices in his stead. An officiating temporary 
 minister in the English church who repre- 
 sents the proper incumbent. Burn, Eccl. 
 Law ; 1 Bla. Com. 393. See Cuke of Souls. 
 
 CURATIO (Lat.). In Civil Law. The 
 
 power or duty of managing the property of 
 him who, either on account of infancy or 
 some defect of mind or body, cannot manage 
 his own affairs. The- duty of a curator or 
 guardian. Calvinus, Lex. 
 
 CURATOR. In Civil Law. One legally 
 appointed to take care of the interests of one 
 who, on account of his youth, or defect of 
 his understanding, or for some other cause, 
 is unable to attend to them himself ; a guard- 
 ian. 
 
 There are curators ad bona (of property), who ad- 
 minister the estate of a minor, take care of his per- 
 son, and intervene in all of his contracts; curators 
 ad litem (of suits), who assist the minor in courts 
 of j'istice, and act as curators ad bona in cases 
 where the interests of the curator are opposed to the 
 interests of the minor. There are also curators of 
 insane persons, and of vacant successions and ab- 
 sent heirs. 
 
 In Missouri the term has been adopted from the 
 civil law and it is applied to the guardian of the 
 ward's estate, as distinct from the guardian of his 
 person; Duncan v. Crook, 49 Mo. 117. In Scotland, 
 it is pronounced Ctlrator. 
 
 Under the Roman law, the guardian of a minor, 
 ■both as to person or property, was called a tutor 
 (q. v.) ; and if, after being of an age to exercise his 
 -ights, he needed a person to look after his rights, 
 such person was called a curator. Sandars, Inst. 
 Just. Introd. xl. A person who had attained the age 
 of puberty was not required to have a curator, but 
 if he had much property he was almost certain to 
 have one, as it was part of his tutor's duty to urge 
 lim to do so; id. 74; Dig. xxvi. 7. 5. 5. 
 
 Interim Curator. In England. A person appoint- 
 ed by justices of the peace to take care of the prop- 
 erty of a felon convict until the appointment by the 
 jrown of an administrator for the same purpose; 
 "Hat. 33 & 34 Vict. c. 23 ; 4 Steph. Com. 462. 
 
 CURATOR BONIS (Lat.). In Civil Law. 
 A. guardian to take care of the property. 
 Calvinus, Lex. 
 
 In Scotch Law. A guardian for minors, 
 lunatics, etc. Halk'ers, Tech. Terms; Bell, 
 Diet. 
 
 CURATOR AD HOC. A guardian for this 
 special purpose. 
 
 A curator ad hoc can be appointed to pro- 
 seed against the tutor for an accounting or 
 bis removal only when there is no under- 
 tutor ; Welch v. Baxter, 45 La. Ann. 1062, 13 
 South. 629. 
 
 CURATOR AD LITEM (Lat). Guardian 
 for the suit. In English law, the correspond- 
 ing phrase is guardian ad litem. 
 
 CURATORSHIP. The office of a curator. 
 
 Curatorship differs from tutorship (q. v.) in this, 
 that the latter is instituted for the protection of 
 property in the first place, and secondly, of the per- 
 son ; while the former is intended to protect, first, 
 the person, and, secondly, the property. 1 Legons 
 Elem. du Droit Civ. Bom. 241. 
 
 CURATRIX. A woman who has been ap- 
 pointed to the office of a curator. 
 
 CURE BY VERDICT. See Aider by Ver- 
 dict. 
 
 CURE OF SOULS. The ordinary duties of 
 an officiating clergyman. 
 
 Curate more properly denotes the incumbent in 
 general who hath the cure of souls; but more fre- 
 quently it is understood to signify a clerk not insti- 
 tuted to the cure of souls, but exercising the spirit- 
 ual office in a parish under the rector or vicar. 2 
 Burn, Eccl. Law 54; 1 H. Bla. 424. 
 
 CURFEW (French, couvre, to cover, and 
 feu, fire). This is generally supposed to be 
 an institution of William the Conqueror, who 
 required, by ringing of the bell at eight 
 o'clock in the evening, that all lights and 
 fires in dwellings should then be extinguish- 
 ed. But the custom is evidently older than 
 the Norman; for we find an order of King 
 Alfred that the inhabitants of Oxford should 
 at the ringing of that bell cover up their 
 fires and go to bed. And there is evidence 
 that the same practice prevailed at this pe- 
 riod in France, Normandy, Spain, and prob- 
 ably in most of the other countries of Europe. 
 Henry, Hist, of Britain, vol. 3, 567. It was 
 doubtless intended as a precaution against 
 fires, which were very frequent and destruc- 
 tive when most houses were built of wood. 
 
 That it was not intended as a badge of in- 
 famy is evident from the fact that the law 
 was of equal obligation upon the nobles of 
 court and upon the native-born serfs. And 
 yet we find the name of curfew law employ- 
 ed as a by-word denoting the most odious 
 tyranny. 
 
 The curfew is spoken of in 1 Social Eng- 
 land 373, as having been ordained by Wil- 
 liam I. in order to prevent nightly gather- 
 ings of the people of England. 
 
 It appears to have met with so much op- 
 position that in 1103 we find Henry I. repeal- 
 ing the enactment of his father on the sub- 
 ject ; and Blackstone says that, though it 
 is mentioned a century afterwards, it is 
 rather spoken of as a time of night than as 
 a still subsisting custom. Shakespeare fre- 
 quently refers to it in the same sense. This 
 practice is still pursued, in many parts of 
 England (Lincoln's Inn, among them) and of 
 this country, as a very convenient mode of 
 apprising people of the time of night. It was 
 enacted in Utah (1903) and other states. 
 
 CURIA. In Roman Law. One of the divi- 
 sions of the Roman people. The Roman peo- 
 ple were divided by Romulus into three tribes 
 and thirty curies: the members of each curia 
 were united by the tie of common religious 
 rites, and also by certain common political 
 and civil powers. Dion. Hal. 1. 2, p. 82 ; 
 Liv. 1. 1, cap. 13 ; Plut. in Romulo, p. 30 ; 
 Festus Brisson, in verb. 
 
 In later times the word signified the sen- 
 ate or aristocratic body of the provincial 
 cities of the empire. Brisson, in verb.; Or-
 
 CURIA 
 
 739 
 
 CURIA REGIS 
 
 tolan, Histoire, no. 25, 408; Ort. Inst. no. 
 125. 
 
 The senate-house at Rome; the senate- 
 house of a provincial city. Cod. 10. 31. 2 ; 
 Spelinan, Gloss. 
 
 In English Law. The king's court; the 
 palace; the royal household. The residence 
 of a noble; a manor or chief manse; the 
 hall of a manor. Spelman, Gloss. 
 
 A court of justice, whether of general or 
 special jurisdiction. Fleta, lib. 2, 1. 72, § 1 ; 
 Feud. lib. 1, 2, 22 ; Spelman; Cowell ; 3 Bla. 
 Com. c. iv. See Court. 
 
 A court-yard or enclosed piece of ground ; 
 a close. Stat. Edw. Conf. 1, 6 ; Bracton, 7G, 
 222 6, 335 o, 356 0, 358 ; Spelman, Gloss. See 
 Cukia Claudenda. 
 
 The civil or secular power, as distinguish- 
 ed from the church. Spelman, Gloss. 
 
 CURIA ADVISARE VULT (Eat). The 
 court wishes to consider (the matter). 
 
 The entry formerly made upon the record 
 to indicate the continuance of a cause until 
 final judgment should be rendered. 
 
 It is commonly abbreviated thus: cur. adv. 
 vult, or c. a. v. Thus, in 2 B. & C. 172, after 
 the report of the argument we find "cur. 
 adv. vult," then, "on a subsequent day judg- 
 ment was delivered," etc. 
 
 CURIA CLAUDENDA. See De Cukia 
 Claudenda. 
 
 CURIA MILITARIS. See Court of Chiv- 
 alry; Court-Martial; Ilarcourt, His Grace 
 the Steward, etc. 
 
 CURIA REGIS (Lat). The king's court. 
 In English Law. A court established in 
 
 England by William the Conqueror in his 
 own hall. 
 
 It was the "great universal" court of the king- 
 dom; from the dismemberment of which are de- 
 rived the present four superior courts in England, 
 viz.: the High Court of Chancery, and the three 
 superior courts of common laio, to-wit, The Queen's 
 Bench, Common Pleas, and Exchequer. It was 
 composed of the king's great officers of state resi- 
 dent in his palace and usually attendant on his per- 
 son ; such as the lord high constable and lord 
 marescal (who chiefly presided in matters of honor 
 and of arms), the lord high steward and lord great 
 chamberlain, the steward of the household, the lord 
 chancellor (whose peculiar duty it was to keep the 
 king's seal, and examine all such writs, grants, and 
 letters as were to pass under that authority), and 
 the lord high treasurer, who was the principal ad- 
 viser in all matters relating to the revenue. These 
 high officers were assisted by certain persons learned 
 In the laws, who were called the king's justiciars or 
 justices, and by the greater barons of parliament, 
 all of whom had a seat in the aula regia, and form- 
 ed a kind of court of appeal, or rather of advice 
 In matters of great moment and difficulty. These, in 
 their several departments, transacted all secular 
 business, both civil and criminal, and all matters of 
 the revenue ; and over all presided one special mag- 
 istrate, called the chief justiciar, or capitalis justi- 
 ciarius totius Anglice, who was also the principal 
 minister of state, the second man in the kingdom, 
 and, by virtue of his office, guardian of the realm in 
 the king's absence. This court was bound to follow 
 the king's household in all his expeditions; on 
 which account the trial of common causes in it was 
 found very burdensome to the people, and accord- 
 ingly the 11th chapter of Magna Charta enacted 
 
 that "communia placita non sequantur curiam 
 regis, sed tcneantur in aliquo certo loco," which 
 certain place was established in Westminster Hall 
 (where the aula regis originally sat, when the king 
 resided in that city), and there It haa ever since 
 continued, under the name of Court of Common 
 Pleas, or Common Bench. It was under the reign 
 of Edward I. that the other several officers of the 
 chief justiciar were subdivided and broken Into dis- 
 tinct courts of judicature. A court of chivalry, to 
 regulate the king's domestic servants, and an august 
 tribunal for the trial of delinquent i 
 erected; while the barons reserved to themsi _■: 
 parliament the right of reviewing the sentences of 
 the other courts in the last resort ; but the distribu- 
 tion of common Justice between man and man was 
 arranged by giving to the court of chancery juris- 
 diction to issue all original writs under the great 
 seal to other courts; the exchequer to manage 
 the king's revenue, the common pleas to dot' 
 all causes between private subjects, and the court 
 of king's bench retaining all the jurisdiction not 
 cantoned out to the other courts, and particularly 
 the sole cognizance of pleas of the crown, or crim- 
 inal causes. 3 Steph. Com. 397 ; 3 Bla. Com. 38 ; 
 Bract. 1. 3. tr. 1, c. 7 ; Fleta, Abr. 2, cc. 2, 3 ; Gil- 
 bert, Hist. C. Pleas, Introd. 18 ; 1 Reeve, Hist. E. 
 L. 48. 
 
 The Council of the King. Its early nature 
 is not well understood. Probably its work- 
 ing body consisted of the king's great officers 
 of state and the judges ; perhaps others were 
 added to it on particular occasion. It trans- 
 acted business of state, sometimes taxation 
 and legislation. It was a court of appeal and 
 exercised original jurisdiction. It answered 
 petitions, which was its chief duty. It might 
 send the petition to one of the ordinary 
 courts or lay it before the king. It came to 
 provide new remedies for new wromrs and 
 distribute justice for each man's d< 
 Later it was tending to become an executive 
 body. 
 
 Formerly the Chancellor was the leading 
 legal member of the Council. By the end 
 of the Middle Ages the Chancery has b< 
 a court, but its connection with the Council 
 is so close that in most cases the C< 
 gives the judgment of the court. In the 
 Tudor period the Council was re-organ i/.ed 
 and the Chancery became separate from it. 
 
 At the end of the 13th and the beginning 
 of the 14th century, Parliament gradually 
 became separate from the Council: a hun- 
 dred years later a division began to take 
 place within the Council — into the Privy or 
 Ordinary Council, the great officers of slate 
 and certain other trusted advisers of the 
 king, and the Great Council, which con 
 of the Privy Council and the great bodj 
 of the nobility, spiritual and temporal. The 
 early records speak of the Council: about 
 the time of Henry VI the term Privy ( i 
 is met with. 
 
 The royal authority was exercised through 
 the Council. 
 
 Towards the end of the lGth century, a 
 committee of practically the whole Council 
 sitting in the Star Chamber gradually ab- 
 sorbed the judicial work of the Council, but 
 the process was gradual and there are few 
 data. The Star Chamber had the title of 
 the "Lords of the Council Sitting in the Star
 
 CURIA REGIS 
 
 740 
 
 CURRENT MONEY 
 
 Chamber." Every member of the Privy 
 Council had the right to sit there. 
 
 At the beginning of the Tudor period the 
 court of Star Chamber had begun to present 
 the appearance of a court more or less sepa- 
 rate from the Council acting as an executive 
 body. 
 
 The Long Parliament abolished the great- 
 er part of the judicial business of the Coun- 
 cil but only as to English bills or petitions. 
 Its appellate jurisdiction as to places outside 
 the ordinary English law was retained. 
 
 The act of 1833 provided "for the better 
 administration of justice in His Majesty's 
 Privy Council." * 
 
 The Judicial Committee of the Privy Coun- 
 cil is a committee of an Executive Council. 
 Though spoken of as a court, it has not a 
 self-contained and independent judicial func- 
 tion ; its legal operation receives its final 
 consummation and sole efficacy from the di- 
 rect official action of the sovereign in coun- 
 cil. 
 
 Historically it is the oldest of the royal 
 courts. The act of the crown in allowing or 
 dismissing an appeal, according to the advice 
 contained in the report of the Judicial Com- 
 mittee, is the, direct lineal descendant of the 
 judgment given by the king in person in the 
 Curia Regis. See 1 Holdsw. Hist E. L. 23. 
 
 See Judicial Committee of the Pkivy 
 Council; Court of Star Chamber; Dicey, 
 Privy Council. A collection of cases (1616- 
 1626) called Abbreviatio Placitorum contains 
 the earliest information of the working of 
 the Curia Regis. See Reports; 2 Sel. Es- 
 says, Anglo-Amer. L. H. 209. 
 
 See Procedure in the Curia Regis, by G. B. 
 Adams (13 Columb. L. Rev. 277). 
 
 CURRENCY. A term commonly used 
 for whatever passes among the people for 
 money, whether gold or silver coin or bank 
 notes. Osgood v. McConnell, 32 111. 74 ; Cock- 
 rill v. Kirkpatrick, 9 Mo. 697 ; Dugan v. 
 Campbell, 1 Ohio 115, 119; Pilmer v. Bank, 
 16 la. 323; Klauber v. Biggerstaff, 47 Wis. 
 560, 3 N. W. 357, 32 Am. Rep. 773. 
 
 CURRENT MONEY. That which is in gen- 
 eral use as a medium of exchange. 
 
 It means the same thing as currency of 
 the country. Miller v. McKinney, 5 Lea 
 (Tenn.) 96. 
 
 The adjective "current," when qualify- 
 ing money, is not the synonym of "convert- 
 ible." It is employed to describe money 
 which passes from hand to hand, and is gen- 
 erally received. Money is current which is 
 received in the common business transac- 
 tions, and is the common medium in barter 
 and trade ; Stalworth v. Blum, 41 Ala. 321. 
 
 Current money means that money which 
 is commonly used and recognized as such; 
 current bank notes, such as are convertible 
 into specie at the counter where they were 
 fssued. Wharton v. Morris, 1 Dall. (U. S.) 
 125, 1 L. Ed. 65 ; Pierson v. Wallace, 7 Ark. 
 
 282; see Fry v. Dudley, 20 La. Ann. 308; 
 Kupfer v. Marc, 28 111. 388; Conwell v. 
 Pumphrey, 9 Ind. 135, 08 Am. Dec. 611; Mc- 
 Chord v. Ford, 3 T. B. Monr. (Ky.) 166; 
 Warren v. Brown, 64 N. C. 381; Stalworth 
 v. Blum, 41 Ala. 321. 
 
 CURSITOR. A junior clerk in the court 
 of chancery, whose business it formerly was 
 to write out from the register those forms 
 of writs whicn issued of course. 1 Poll. & 
 M. Hist. Engl. Law 174. 
 
 Such writs were called writs de cursu (of course), 
 whence the name, which had been acquired as early 
 as the reign of Edward III. The body of cursitors 
 constituted a corporation, each clerk having a 
 certain number of counties assigned to him. Coke, 
 2d Inst. 670; 1 Spence, Eq. Jur. 238. The office was 
 abolished by 6 & 6 Will. IV. c. 82. 
 
 CURSITOR BARON. An officer of the 
 court of exchequer, appointed by patent un- 
 der the great seal to be one of the barons of 
 the exchequer. Abolished by 19 & 20 Vict, c 
 86. Wharton, Diet. 
 
 CURTESY. The estate to which by com- 
 mon law a man is entitled, on the death of 
 his wife, in the lands or tenements of which 
 she was seised in possession in fee simple or 
 in tail during their coverture, provided they 
 have had lawful issue born alive which might 
 have been capable of inheriting the estate. 
 Chal. R. P. 314. 
 
 An estate for life which a husband takes 
 at the death of his wife, having had issue 
 by her born alive during coverture, in all 
 lands of which she was seised in fact of an 
 inheritable estate during coverture. 
 
 The right of the husband to enjoy during 
 his life land of which his wife is at any time 
 during coverture seised in fee simple (ab- 
 solute or defeasible) or in fee tail, provided 
 there was issue, born alive, of the marriage. 
 Demb. Land Tit. § 109. 
 
 It is a freehold estate for the term of his 
 natural life. 1 Washb. R. P. 127. In the 
 common law the word is used in the phrases 
 tenant by curtesy, or estate by curtesy, but 
 seldom alone; while in Scotland of itself it 
 denotes the estate. The phrase "tenant by 
 the law of England" was also used, and is 
 said to have been of earlier origin ; 2 Poll. & 
 M. Hist. E. L. 412. 
 
 Some question has been made as to the 
 derivation Both of the custom and its name. 
 It is said that the term is derived from Cur- 
 tis, a court, and that the custom, in England 
 at least, is of English origin, though a similar 
 custom existed in Normandy, and still exists 
 in Scotland. 1 Washb. R. P. 128, n. ; Wright, 
 Ten. 192; Co. Litt. 30 a; 2 Bla. Com. 126; 
 Ersk. Inst. 380; Grand Cout. de Normandie, 
 c. 119. But this derivation "is considered 
 more ingenious than satisfactory," and it is 
 suggested that it is possible to explain the 
 phrase by "some royal concession," as "being 
 reasonable enough." 2 Poll. & M. Hist. E. L. 
 412. 
 
 A husband has an estate by curtesy after
 
 CURTESY 
 
 741 
 
 CURTILAGE 
 
 the death of his wife in lands which he had 
 voluntarily settled upon her, if he did not 
 expressly or by implication relinquish such 
 rights in the settlement; Depue v. Miller, G5 
 W. \a. 120, 64 S. B. 740, 23 L. R. A. (N. B.) 
 7751 in re Kaufmann, 142 Fed. 898; Mea- 
 cham v. Buffting, 156 111. 580, 41 N. E. 175, 
 28 L. R. A. G18, 47 Am. St Rep. 239; contra, 
 Batliff v. Ratliff, 102 Va. 887, 47 S. B. 1007. 
 He has curtesy in the equity of redemption 
 of the wife's lands; Jackson v. Printing Co., 
 8G Ark. 591, 112 S. W. 161, 'Jo L. R A. (N. 
 S.) 454. That an estate was purchase '1 by 
 funds from the wife's separate estate and 
 conveyed to the husband and wife Jointly 
 will not deprive him of his curtesy in the 
 property; Donovan v. Griffith, 215 Mo. 149, 
 114 S. W. 621, 20 L. R. A. (N. S.) 825, 128 
 Am. St. Rep. 458, 15 Ann. Cas. 724. A sur- 
 viving husband is entitled to curtesy out of 
 a determinable fee owned by his wil'e with 
 Issue born alive notwithstanding the contin- 
 gency upon which the fee is to terminate ex- 
 ists at the time of her death ; Carter v. 
 Couch, 157 Ala. 470, 47 South. 100G, 20 L. R. 
 A. (N. S.) 858; Hatfield v. Sneden, 54 N. Y. 
 280; Webb v. First Baptist Church, 00 Ky. 
 117. 13 S. W. 3G2; McMasters v. Negley, 152 
 103, 25 Atl. G41. 
 In Pennsylvania, by act of April 8, 1833, 
 issue of the marriage is no longer necessary, 
 so that the bus! and gains a freehold by the 
 marriage itself; Lancaster County Bank v. 
 Stauffer, 10 Pa. 399; but the law applies only 
 when the estate is devisable, not to an estate 
 tail or defeasible fee; McMasters v. Negley, 
 152 Pa. 303, 25 Atl. 641. That the wife's title 
 to real estate is not acquired until after the 
 death of the only child of the marriage will 
 not deprive the husband of curtesy in the 
 property; Donovan v. Griffith, 215 Mo. 149, 
 114 S. W. G21, 20 L. R. A. (N. S.) 825, 128 
 Am. St. Lop. 458, 15 Ann. Cas. 724. Ohio, 
 Illinois, Kentucky, and Maine reduce the 
 husband's life estate to one-third, calling it 
 "dower," and dispense with birth of issue 
 alive, while dower remains unchanged. In 
 South Carolina and Georgia, curtesy has 
 gone out of use. the husband having under 
 the law greater benefits. Demb. Land Tit. § 
 109. Louisiana, Texas, California, Nevada, 
 Washington, and Idaho, and Arizona and 
 New Mexico have the "community" system 
 and no curtesy; id. § 111. And in Indiana, 
 Iowa, Minnesota, the Dakotas, Kansas, Col- 
 orado, Wyoming, and Mississippi, dower is 
 applied by a forced lienshlp of the widow 
 and there is no curtesy ; id. § 108. See 
 Dowek. 
 
 CURTILAGE. The enclosed space imme- 
 diately surrounding a dwelling-house, con- 
 tained within the same enclosure. 
 
 It is defined by Blount as a yard, backside, or 
 piece of ground near a dwelling-house, in which 
 they sow beans, etc., yet distinct from the garden. 
 Blount ; Spelman. By others it is said to be a 
 waste piece of ground so situated. Cowell. 
 
 It has also been denned as "a fence or enclosure 
 
 of a small piece of land around a dwelling-house, 
 usually including the buildings occupied la connec- 
 tion with the dwelling-house, the enclosure consist- 
 ing either of a separate fence or partly of a 
 and partly of the exterior of buildings so within 
 this enclosure." Com. v. Barney, 10 Cush. i ." 
 480. 
 
 It usually includes the yard, garden, or field 
 which is near to and used U ih the 
 
 dwelling. Cook v. State, 83 Ala. 63, 3 South. 819, 3 
 Am. St. Rep. 688. See Ivey v. State, CI Ala. 
 
 The term is used In determining whether the 
 offence of breaking Into a barn or v.. 
 burglary. See 4 Bla. Com. 221; 1 Hale PI. Cr. 558; 
 2 Russell, Cr. 13; Russ. & R. 289; 1 C. & K. 81. 
 
 In Michigan the meaning of curtilage ha 
 extended to include more than an enclosure near 
 the house. People v. Taylor, 2 Mich. 230. See Cod- 
 dington v. Dry Dock & Wet Dock Co., 31 N. J. I* 
 4S5 ; State v. Shaw, 31 Me. 523. 
 
 CURTILLUM. The area or space within 
 the enclosure of a dwelling-house. Spelman. 
 Gloss. 
 
 CURTIS. The area about a building; a 
 garden; a hut or farmer's house; a farmer's 
 house with the land enrolled with it. 
 
 A village or a walled town contain: 
 small number of hoi; 
 
 The residence of a nobleman; a hall or 
 palace. 
 
 A court; a tribunal of justice. 1 Washb. 
 R. P. 120; Spelman, Gloss.; 3 Bla. Com. 320. 
 
 CUST0DES. Keepers; guardians; con- 
 servators. 
 
 Custodcs pads (guardians of the peace). 
 1 Bla. Com. 340. 
 
 Custodcs Ubertatis Anglice auctoritaU 
 liamenti (guardians of the liberty of England 
 by authority of parliament). The style in 
 which writs and all judicial process ran dur- 
 ing the grand rebellion, from the death of 
 Charles I. till Cromwell was declared Pro- 
 tector. Jacob, Law Diet. 
 
 CUST0DIA LEGIS. In the custody of the 
 law. 
 
 Winn property is lawfully taken, by vir- 
 tue of legal process, it is in the custody of 
 the law, and not otherwise: Gilman v. Wil- 
 liams. 7 Wis. 334, 76 Am. Dec. 2] 
 
 ■Where a sheriff has taken under attach- 
 ment more than enough property to satisfy 
 it, the property is not in custodia h 
 a sense that will prevent a levy by a D. S. 
 marshal in a .-nit in the federal court, so as 
 to give the latter creditor a lien on 
 cess after satisfying the first attachment; 
 Goodbar v. Brooks, 57 Ark. 450. Nor are 
 executions issued on void judgments and 
 their returns admissible against subsequent 
 attaching creditors, to show that the 
 wore in custodia Icijis; Burr v. Math 
 Mo. A*pP- 470. 
 
 For cases on property and funds in the 
 custody of the courts not subject to attach- 
 ment, see Curtis v. Ford, 10 L. R. A 
 note. 
 
 CUSTODY. The detainer of a person by 
 virtue of a lawful authority. 3 Chit. Pr. 355. 
 The care and possession of a thing.
 
 CUSTODY 
 
 742 
 
 CUSTOM 
 
 Custody has been held to mean nothing 
 less than actual imprisonment; Smith v. 
 Com., 59 Pa. 320; Holland v. Com., S*2 Pa. 
 30G, 22 Am. Rep. 758. See Custodia Legis. 
 
 As to custody of children, see Parent and 
 Child; Infant; Divorce. 
 
 CUSTOM. Such a usage as by common 
 consent and uniform practice has become the 
 law of the place, or of the subject-matter, to 
 which it relates. 
 
 Custom is a law established by long usage. 
 Wilcox v. Wood, 9 Weud. (N. Y.) 349. See 
 Pollock, 1st Bk. of Jurispr. 263. 
 
 It differs from prescription, which is personal and 
 is annexed to the person of the owner of a particu- 
 lar estate ; while the other is local, and relates to 
 a particular district. An instance of the latter oc- 
 curs where the question is upon the manner of con- 
 ducting a particular branch of trade at a certain 
 place; of the former, where a certain person and 
 his ancestors, or those whose estates he has, have 
 been entitled to a certain advantage or privilege, as 
 to have common of pasture in a certain close, or the 
 like. 2 Bla. Com. 263. The distinction has been thus 
 expressed: "While prescription is the making of a 
 right, custom is the making of a law;" Laws. Us. 
 & Cust. 15, n. 2. . 
 
 General customs are such as constitute a 
 part of the common law of the country and 
 extend to the whole country. 
 
 Particular customs are those which are 
 confined to a particular district; or to the 
 members of a particular class; the exist- 
 ence of the former are to be determined by 
 the court, of the latter, by tbe jury. Laws. 
 Us. & Cust. 15, n. 3 ; see Bodfish v. Fox, 23 
 Me. 90, 39 Am. Dec. 611. 
 
 In general, when a contract is made in 
 relation to matter about which there is an 
 established custom, such custom is to be un- 
 derstood as forming part of the contract, and 
 may always be referred to for the purpose of 
 showing the intention of the parties in all 
 those particulars which are not expressed in 
 the contract; 2 Pars. Contr. 652, 063; Fulton 
 Bank oT New York v. Benedict, 1 Hall (N. 
 Y.) 602; Van Ness v. Pacard, 2 Pet. (U. S.) 
 138, 7 L. Ed. 374; Stultz v. Dickey, 5 Binn. 
 (Pa.) 285, 6 Am. Dec. 411; 1 M. & W. 476; 
 L. R. 17 Eq. 358; Robinson v. Fiske, 25 Me. 
 401 ; Bragg v. Bletz, 7 D. C. 105. 
 
 Evidence of a usage is admissible to ex- 
 plain technical or ambiguous terms; 3 B. 
 & Ad. 728; Lane v. Bank, 3 Ind. App. 290, 
 29 N. E. 613 ; Nonantum Worsted Co. v. Mfg. 
 Co., 156 Mass. 331, 31 N. E. 293. But evi- 
 dence of a usage contradicting the terms of 
 a contract is inadmissible; 2 Cr. & J. 244; 
 Brown v. Foster, 113 Mass. 136. 18 Am. Rep. 
 463; Farmers' & Mechanics' Nat. Bank of 
 Buffalo v. Logan, 74 N. Y. 5S6; Exchange 
 Bank of Virginia v. Cookman, 1 W. Va. 69 ; 
 Gilbert v. McGinnis, 114 111. 28, 2S N. E. 
 .",S2 ; De Cernea v. Cornell, 1 Misc. 399, 20 N. 
 Y. Supp. S95; Globe Milling Co. v. Elevator 
 Co., 44 Minn. 153, 46 N. W. 306. Nor can a 
 local usage affect the meaning of the terms 
 of a contract unless it is known to both con- 
 tracting parties; Chateaugay Ore & Iron Co. 
 
 v. Blake, 144 U. S. 476, 12 Sup. Ct. 731, 36 L. 
 Ed. 510; nor can it affect a contract made 
 elsewhere; Insurance Co. of North America 
 v. Ins. Co., 140 U. S. 565, 11 Sup. Ct. 909, 35 
 L. Ed. 517. 
 
 "Merely that it varies the apparent con- 
 tract is not enough to exclude the evidence, 
 for it is impossible to add any material in- 
 cident to the written terms of a contract, 
 without altering its effect more or less. To 
 fall within the exception of repugnancy the 
 incident must be such as, if expressed in 
 the written contract, would make it insen- 
 sible or inconsistent ;" Per cur. in 3 E. & B. 
 715. See Leake, Contr. 197; 7 E. & B. 274. 
 In order to establish a custom, it will be 
 necessary to show its existence for so long 
 a time that "the memory of man runneth 
 not to the contrary," and that the usage 
 has continued without any interruption of 
 the right; for, if it has ceased for a time 
 for such a cause, the revival gives it a new 
 beginning, which will be what the law calls 
 within memory. It will be no objection, how- 
 ever, that the exercise of the right has been 
 merely suspended. 1 Bla. Com. 76 ; 2 id. 31 ; 
 Freary v. Cooke, 14 Mass. 48S; L. R. 7 Q. B. 
 214; Ulmer v. Farnsworth, 80 Me. 500, 15 
 Atl. 65. See Hyde v. News Co., 32 Mo. App. 
 29S. It must not have begun within legal 
 memory, i. e, A. D. 1189 ; L. R. [1905] 2 Ch. 
 538; but a jury may find an immemorial cus- 
 tom upon proof of a period of twenty years 
 or so ; 21 L. J. Q. B. 196. 
 
 lb must also have been peaceably ac- 
 quiesced in and not subject to dispute ; for, 
 as customs owe their origin to common con- 
 sent, their being disputed, either at law or 
 otherwise, shows that such consent was 
 wanting; Wood v. Hickok, 2 Wend. (N. Y.) 
 501; Rappv. Palmer, 3 Watts (Pa.) 178. In 
 addition to this, customs must be reason- 
 able and certain. A custom, for instance, 
 that land shall descend to the most worthy 
 of the owner's blood is void; for how shall 
 this be determined? But a custom that it 
 shall descend to the next male of the blood, 
 exclusive .of females, is certain, and there- 
 fore good ; 2 Bla. Com. 78 ; Browne, Us. & 
 Cust. 21. See Minis v. Nelson, 43 Fed. 777. 
 
 Evidence of usage is never admissible to 
 oppose or alter a general principle or rule 
 of law so as, upon a given state of facts, to 
 make the legal right and liabilities of the 
 parties other than they are by law ; Browue, 
 Us. & Cust. 135, n; Stoever v. Whitman's 
 Lessee, 6 Binn. (Pa.) 416; 16 C. B. N. S. 
 646; Barnard v. Kellogg, 10 Wall. (U. S.) 
 3S3, 19 L. Ed. 987; Warren v. Ins. Co., 104 
 Mass. 518; East Birmingham Land Co. v. 
 Dennis, 85 Ala. 565, 5 South. 317, 2 L. R. A. 
 836, 7 Am. St. Rep. 73; Hopper v. Sage, 112 
 N. Y. 530, 20 N. E. 350, 8 Am. St. Rep. 771; 
 but the rule is said by Lawson to extend no 
 further than to usages which "conflict with 
 an established rule of public policy, which it 
 is not to the general interest to disturb."
 
 CUSTOM 
 
 743 
 
 CUSTOM 
 
 Laws. Us. & Cust. 48G. With respect to a 
 usage of trade, however, it is sufficient if it 
 appears to be known, certain, uniform, rea- 
 sonable, and not contrary to law; Collings 
 v. Hope, 3 Wash. C. C. 150, Fed. Ca 
 3,003; U. S. v. Macdaniel, 7 Pet. (U. 8.) 1, 
 8 L Ed. 587; Lowry v. Russell, 8 Pick. 
 (Mass.) 3G0; 4 B. & Aid. 210; 1 C. & P. 59; 
 ■ in v. Bank, 87 Tenn. 350, 10 B. W. 774, 
 3 L. R. A. 27.% 10 Am. St. Rep. 000. See 
 Pickering v. Weld; 159 Mass. 522, ::i N. B. 
 1081. But if not directly known to the par- 
 ties to the transaction, It will still be binding 
 upon them if it appear to be so general and 
 well established that knowledge of it may be 
 presumed; Smith v. Wright, 1 Cai. (N. Y. ) 
 43, 2 Am. Dec. 162; 4 Stark. 452; 1 Dougl. 
 510. A nsage of trade is sufficiently long 
 continued if it has existed so long as to 
 that the parties to a contract meant fc> em- 
 ploy the expression in the sense defined by 
 it; Hyde v. News Co., 32 Mo. App. 298. And 
 one who seeks to avoid the effect of a noto- 
 rious and uniform usage of trade must show 
 that he was ignorant of it ; Robertson v. S. 
 S. Co., 139 N. Y. 416, .".4 N. R. 1053. Whether 
 a trade custom is established by the evidence 
 in a case, and whether, if so, it was known 
 to the party contracting or was so well es- 
 tablished that he must be presumed to have 
 known of it and contracted with reference 
 to it, are questions for the jury; New Roads 
 Oilmill & Mfg. Co. v. Kline, Wilson & Co., 
 154 Fed. 296, 83 C/ C. A. 1. 
 
 Parties to a contract may contract to ex- 
 clude a custom of trade therefrom; id. To 
 read a usage into a contract, it must be con- 
 sistent with the terms of the writing; id. 
 
 In an action for negligence, proof of a 
 custom on the part of engine drivers to un- 
 couple the locomotive and run ahead a short 
 distance was offered to show the measure of 
 duty. It was held that such a custom, to 
 have the force of law, or to furnish a stand- 
 ard for the rights and acts of men, must be 
 certain and uniform and so well known that 
 no man dealing with the subject would be 
 ignorant of it; per Sanborn, C. J., in Chi- 
 cago, M. & St. P. Ry. Co. v. Lindeman, 143 
 Fed. 946, 75 C. C. A. 18 (C. C. A., Eighth 
 Circuit). 
 
 A local custom is usage which has obtained 
 the force of law and is in truth the binding 
 law in a particular district or at a particular 
 place of the persons or things that it con- 
 cerns; 9 A. & E. 421. A local custom, so far 
 as it extends, supersedes the local law ; 5 
 Bingh. 253; but it cannot prevail against an 
 express act of parliament; [1899] App. <'as. 
 41. The particular custom must have been 
 asserted openly and acquiesced in by the per- 
 sons who were affected and the enjoyment 
 must have been peaceable. It must have 
 been reasonable. It ought to be certain. 
 
 A local custom cannot supersede or modify 
 a statute; Gore v. Lewis, 109 N. C. 539, 13 
 
 S. B. 909; Palmer v. Transportation Co., 76 
 Hun 181, 27 N. Y. Supp. 561. 
 
 See 20 L. J. Ex. 210; St,, ens v. Reeves, 9 
 Pick. (Mass. I 198; B gt hind, 2 
 
 Cai. (N. y.i 219; 2 F. A I'. 131; Metcalf v. 
 W.-ld. 14 Gray (Mass.) 210; Renner v. Rank, 
 'j Wheat (U. 8.) 582, 6 L. Ed. 166; Gordon 
 v. Little, 8 S. & B. (Pa.) 533, 11 Am. Dec. 
 632; Dougl. 201; 4 Taunt 848; Waring v. 
 Grady's Ex'r, 49 Ala. 465, 20 Am. R< 
 Goodenow v. Tyler, 7 M 
 22 : I.. B. 2 Ex 101 ; Cooper v. K.- 
 Wend, < X. Y. i 386, 32 Am! I >ee 512 ; R 
 v. Clark, 41 Md. 158, 20 Am. Rep. 66 
 Lawsoii; Browne; Us. & Cust.; note to Wi 
 glesworth v. Dalllson, l Sm. Let BOO; 
 
 [1892] Prob. 411; Metropolitan St R. Co. v. 
 Johnson, 91 Ga. 466, 18 S. E. 816. See 
 Usage:. 
 
 CUSTOM-HOUSE. A place appointed by 
 law, in ports of entry, where importers of 
 goods, wares, and merchandise are bound to 
 enter the same, in order to pay or secure the 
 duties or customs due to the government. 
 
 CUSTOM-HOUSE BROKER. A person 
 authorized to act Cor parties, at their option, 
 in the entry or clearance of ships and the 
 transaction of general business. Wharton. 
 t of July 13, 1866, § 9, 14. U. S. Stat. 
 L. 117. 
 
 CUSTOM OF LONDON. Particular regu- 
 lations In force within the city of London, 
 in regard to trade, apprentices, widows and 
 orphans, etc., which form part of the com- 
 mon law. 1 Bla. Com. 75; 3 Steph. i 
 588. See Dead Man's Part. The custom 
 of London, as regards intestate suecea 
 was abolished by 19 & 20 Vict c. 94; as re- 
 gards foreign attachment, it was extended 
 to all England and Wales by the Common 
 Law Procedure Act of 1854, and is the basis 
 of the law on that subject in this country. 
 See Attachment. 
 
 Their influence on the early institutions 
 of Pennsylvania was very great; Com. v. 
 Hill, 185 Pa. :>92, 39 Atl. 1055. 
 
 CUSTOM OF MERCHANTS. A system of 
 customs acknowledged and taken notice of 
 by all nations, and which are. there 
 part of the general law of the land. See 
 Law Merchant; i Chit Bla. Com. 76, n. 9. 
 CUSTOM OF THE REALM. A current 
 description of the commoD law of England, 
 which is said not to be unhistoricaL 
 lock, First Book of Jurispr. 252, See James 
 C. Carter, Law, Its Origin, etc. 
 
 CUSTOM OF YORK. A custom of intes- 
 tacy in the province of York similar to 
 that of London. Abolished by 19 & 2d 
 c. 94. 
 
 CUSTOMARY COURT BARON. Sec 
 Court Babon. 
 
 CUSTOMARY ESTATES. Estates which 
 owe their origin and existence to the custom
 
 CUSTOMARY ESTATES 
 
 744 
 
 CUSTOMS 
 
 of the manor in which they are held. 2 Bla. 
 Com. 149. 
 
 CUSTOMARY FREEHOLD. A class of 
 freeholds held according to the custom of the 
 manor, derived from the ancient tenure in 
 villein socage. Holders of such an estate 
 have a freehold interest, though it is not 
 held by a freehold tenure. 2 Bla. Com. 149. 
 In reference to customary freehold, outside 
 the ancient demesne all the tenures of the 
 non-freeholding peasantry are in law one 
 tenure, tenure in villeinage; 1 Poll. & M. 
 Hist. Engl. Law 3S4. 
 
 CUSTOMARY SERVICE. A service due 
 by ancient custom or prescription only. 
 Such is, for example, the service of doing 
 suit at another's mill, where the persons res- 
 ident in a particular place, by usage, time 
 out of mind have been accustomed to grind 
 corn at a particular mill. 3 Bla. Com. 234. 
 
 CUSTOMARY TENANTS. Tenants who 
 hold by the custom of the manor. 2 Bla. 
 Com. 149. 
 
 CUSTOMS. Taxes levied upon goads and 
 merchandise imported or exported. Story, 
 Const. § 949; Bacon, Abr. Smuggling. 
 
 The duties, toll, tribute, or tariff payable 
 upon merchandise exported or imported. 
 These are called customs from having been 
 paid from time immemorial. Expressed in 
 law Latin by custuma, as distinguished by 
 consuetudines, which are usages merely. 1 
 Bla. Com. 314. 
 
 Nine general appraisers are appointed by 
 the president (not more than five from the 
 same political party). They are employed 
 at such ports and within such limits as the 
 Secretary of the Treasury shall prescribe. 
 Three of them constitute a board of general 
 appraisers at the port of New York. It is 
 a part of their duties to make reappraise- 
 ments of the dutiable value of goods on de- 
 mand of the importer, etc., or the collector. 
 There is an appeal from the appraiser or 
 person acting as such, or from the general 
 appraiser in cases of reappraisement (either 
 by the importer, etc., er by the collector) to 
 the general board in New York or another 
 b*oard of three general appraisers designated 
 by the Secretary. 
 
 The collector fixes the rate and amount of 
 duties chargeable. If an importer, etc., gives 
 the required notice, the papers are then trans- 
 mitted to the general board in New York, 
 or to another such board designated by the 
 Secretary. From its decision, an appeal lies 
 to the district court in the district, which 
 may, upon request of the importer, etc., the 
 Secretary, or the collector, direct a general 
 appraiser to procure further evidence. The 
 court then determines the classification and 
 the rate of duty. It may, if it deems the 
 case of such importance, allow an appeal to 
 the Supreme Court, and shall allow one 
 whenever the Attorney-General requests it 
 
 within 30 days from a decision. Provision 
 is made for giving publicity to the rulings 
 of the general appraisers and the boards. 
 Act of June 10, 1890, as amended Aug. 5, 
 1909. 
 
 See Smuggling; Tariff; Protest, Pay- 
 ment under. 
 
 CUSTOS BREVIUM (Lat.). Keeper of 
 writs. An officer of the court of common 
 pleas whose duty it is to receive and keep 
 all the writs returnable to that court and 
 put them upon file, and also to receive of 
 the prothonotaries all records of nisi prius, 
 called postcas. Blount. An officer in the 
 king's bench having similar duties. Cowell ; 
 Termes de la Ley. The office is now abol- 
 ished. 
 
 CUSTOS MARIS (Lat.). Warden or 
 guardian of the seas. Among the Saxons, an 
 admiral. Spelman, Gloss. Admiralius. 
 
 CUSTOS MORUM. Applied to the court 
 of king's bench, as "the guardian of the 
 morals" of the nation. 4 Steph. Com. 311. 
 
 CUSTOS PLACITORUM CORON/E (Lat.). 
 Keeper of the Pleas of the Crown (the crim- 
 inal records). Said by Blount and Cowell 
 to be the same as the Gustos Rotulorum. 
 
 CUSTOS ROTULORUM (Lat). Keeperof 
 the rolls of the peace. The principal justice 
 of the peace of a county, who is the keeper 
 of the records of the county. 1 Bla. Com. 
 349. He is always a justice of the peace 
 and quorum, is the chief civil officer of the 
 king in the county, and is nominated under 
 the king's sign-manuaL He is rather to be 
 considered a minister or officer than a judge. 
 Cowell; Lambard, Eiren. 373; 4 Bla. Com. 
 272 ; 3 Steph. Com. 37. The office has come 
 to be united with that of the lord-lieutenant 
 of the county. Maitland, Justice, etc., 82. 
 
 CUSTUMA. Duties. See Consuetudo. 
 
 CUSTUMA ANTIQUA SIVE MAGNA (Lat. 
 ancient or great duties). The duties on 
 wool, sheepskin or wool-pelts and leather 
 exported were so called, and were payable 
 by every merchant, stranger as well as na- 
 tive, with the exception that merchant 
 strangers paid one-half more than natives. 
 1 Bla. Com. 314. 
 
 CUSTUMA PARVA ET NOVA (Lat). An 
 impost of threepence in the pound sterling 
 on all commodities exported or imported by 
 merchant strangers. Called at first the 
 alien's duty, and first granted by stat 31 
 Edw. I. Maddox, Hist Exch. 526, 532; 1 
 Bla. Com. 314. 
 
 CUT. A wound made with a sharp instru- 
 ment. State v. Patza, 3 La. Ann. 512; 1 
 Russ. & R. 104. See Binns v. Lawrence, 12 
 How. (U. S.) 9, 13 L. Ed. 871. 
 
 CYNEBOTE. A mulct anciently paid, by 
 one who killed another, to the kindred of the 
 deceased. Spelman, Gloss.
 
 CY PRES 
 
 745 
 
 
 CY PRES (L. Fr. as near as). The rule 
 of construction applied to a will (but not to 
 a deed) by which, where the testator evinces 
 a general intention to be carried into effect 
 in a particular mode which cannot be fol- 
 lowed, the words shall be bo construed as 
 to give effect to the general intention. 3 
 Hare 12; 2 Term 254 ; 2 Bllgh -10 ; Sugd. Pow. 
 60; 1 Spence, Eq. Jur. 532; Bisph. Eq. § 12G; 
 McGrath, Cy Pres. 
 
 The doctrine of approximation, whereby 
 the intent of the testator or grantor, which 
 Is Impracticable to carry out literally, is car- 
 ried out as near as possible. Mott v. Morris, 
 249 Mo. 137, 155 S. W. 434. 
 
 As commonly understood it has two fea- 
 tures—one the right to exercise prerogative 
 authority, enabling a court to deal with. a 
 bequest to a charitable use having no desig- 
 nated particular purpose as a bequest to 
 charity generally, treating the purpose as 
 the legatee, or a bequest for an illegal pur- 
 pose, or some purpose impossible of execu- 
 tion for some reason ; and the other, the 
 right by liberal rules of construction to deal 
 with a trust having a designated particular 
 purpose, though in general terms, and en- 
 force it within the limits of such purpose, 
 supplying the trustee if necessary; Tincher 
 v. Arnold, 147 Fed. 665, 77 C. C. A. G49, 7 
 L. R. A. (N. S.) 471, 8 Ann. Cas. 917; Har- 
 rington v. Pier, 105 Wis. 4S5, 82 N. W. 345, 
 50 L. R. A. 307, 76 Am. St. Rep. 924. 
 
 The principle is applied to sustain wills 
 In which perpetuities are attempted to be 
 created, so that, if it can possibly be done, 
 the devise is not regarded as utterly void, 
 but is expounded in such a manner as to 
 carry the testator's intention into effect as 
 far as the law respecting perpetuities will 
 allow. This is called a construction cy pres. 
 Its rules are vague, and depend chiefly upon 
 judicial discretion applied to the particular 
 case. Sedgwick, Stat. Law 265; Story, Eq. 
 Jur. § 11*17. A limitation void because it 
 offends the doctrine of perpetuity will be 
 void altogether, and cannot be held under 
 the cy prcs rule of construction to be good 
 as to that part which keeps within the period 
 of perpetuity, and void only as to the excess; 
 Post v. Rohrbach, 142 111. 606, 32 N. E. 6S7. 
 
 It is also applied to sustain devises and 
 bequests for charities (q. v.). In its origin 
 the doctrine was applied, in the exercise of 
 the royal prerogative, delegated to the Lord 
 Chancellor under the sign manual of the 
 crown. Where there was a definite charita- 
 ble purpose which was illegal and could not 
 take place, the chancellor would substitute 
 another. The judicial doctrine under this 
 name is that if charity be the general sub- 
 stantial intention, though the mode provided 
 for its execution fails, the English chancery 
 will find some means of effectuating it, even 
 by applying the fund to a different purpose 
 from that contemplated by the testator, but 
 as near to it as possible, provided only it be 
 
 charitable; Bisph. Eq. § 129; Boyle, Char. 
 117, 155; Shelf, Mortal. C. C. 
 
 379; 7 Ves. 69, 82. Where a legacy is given 
 to a charitable Institution which 
 
 tator's death, but . ;.st be- 
 
 fore the legacy is paid over, ii ; ■ 
 property of the charity on the .hath of the 
 testator, and upon the charity 
 exist it is applicable d> charitabli 
 according to the doctrine <>f cy /<>< a ; 
 2 Ch. 236. Most of the cases carry 
 trine beyond what is allowed where private 
 Interests are concerned, and have in no In- 
 considerable d( gree to draw f<>r their sup- 
 port on the prerogative of the crown and the 
 statute of charitable uses; 43 Eliz. c. 4. 
 This doctrine does not universally obtain in 
 ountry to the disinherison of heirs and 
 next of kin. See CiiAiuT.ua Jack- 
 
 son v. Phillips, M Allen (Mass.) 580; Vidai 
 v. Philadelphia, 2 How. (U. S.) 1^7, n L. 
 Ed. 205; Perin v. Carey, 24 Bow. (1 
 465, 16 L. Ed. 701; Loring v. Marsh. 6 Wall. 
 (U. S. L. Ed. 802; Williams v. Wil- 
 
 liams 8 N. V. 548. 
 
 The doctrine of cy prcs with reference to 
 charitable trusts is that where a definite 
 function or duty is to be performed, which 
 cannot be done in exact conformity with the 
 plan of the person who lias provided there- 
 for, such function or duty will be perform- 
 ed with as close approximation to the origi- 
 nal plan as is reasonably practicable: In- 
 graham v. Ingraham, 169 ill. 432, 48 N. B. 
 561, 49 N. E. 320; MacKenzie v. Trust* 
 N. J. Eq. 052. 61 Atl. 1027, 3 L. K. A. | N. S. I 
 227. 
 
 In cases where there has been an inten- 
 tion to make an unconditional gift to a non- 
 existent corporation or society, then the gift 
 will be regarded as immediate supported up- 
 on the doctrine of cy prcs; Russell v. Allen. 
 107 U. S. 163, 2 Sup. Ct. 327, 27 L. Ed. 397; 
 Swasey v. American P.ible Soc., 57 Me. 523; 
 dimming v. Reid Memorial Church, 64 Gfl 
 105; Andrews v. Andrews, 110 111. 223; 
 Dodge v. Williams, 46 Wis. 70, 1 N. W. 92, 
 50 N. W. 1103. In some states, however, the 
 power to administer a charitable tra 
 pres is declared not to exist, and therefore 
 gifts to corporations not in being are void 
 for remoteness; Shipman v. Rollins, :i^ N. 
 Y. 311; Little v. Willford, 31 Minn it: 1 ., it 
 N. w. 282; Methodist Church ef Newark v. 
 Clark. -11 Mich. 730, 3 N. W. 207; Barnum 
 v. Council of Baltimore, 62 Md. 275, 5 
 Rep. 219; Williams v. Pearson, 38 Ala 
 Though the disallowance of charitable gifts 
 to corporations nol in being seems to be the 
 logical consequence of repudiating the doc- 
 trine of cy pres, yet there are some states 
 whose courts repudiate the doctrine of cy 
 prcs and yet support such gifts; Literary 
 Fund v. Dawson, 10 Leigh (Va.) 147; Bridg- 
 es v. Pleasants, 39 X. O. 30, 44 Am. Dee. 94 ; 
 Zeisweiss v. James, 63 Pa. 465, 3 Am. Rep. 
 558.
 
 CY PRES 
 
 746 
 
 CY PRES 
 
 Upon the dissolution of a charitable cor- 
 poration, its property will be appropriated 
 by the court to the purpose most nearly akin 
 to the intent of the donors and will not be 
 distributed to the donors; In re Centennial 
 & Memorial Ass'n of Valley Forge, 235 Pa. 
 206, 83 Atl. 683. 
 
 Where the perpetuity is attempted to be 
 created by deed, all the limitations based 
 upon it are void; Cruise, Dig. t. 38, c. 9, § 
 34. See, 1 Vera. 250; 2 Ves. 336, 337, 364, 
 380 ; 3 id. 141, 220 ; 4 id. 13 ; Com. Dig. Con- 
 dition (L, 1) ; 1 Roper, Leg. 514; Dane, Abr. 
 Index; Domat, Lois Civ. liv. 6, t. 2, § 1 ; 
 Shelf, Mortm. ; Highmore, Mortm. ; 8 H. L. 
 R. 69. 
 
 The cy pres doctrine has been repudiated 
 by the states of Alabama, Iowa, Indiana, 
 Maryland, Michigan, Minnesota, North Caro- 
 lina,' Tennessee, South Carolina, Virginia, 
 West Virginia and Wisconsin (quwre). But 
 the doctrine has been approved in all the 
 New England states, also Pennsylvania and 
 New York; in Mississippi and Illinois, and 
 in some other states, the question has not 
 been decided. Bisph. Eq. § 130; Eliot's Ap- 
 
 peal, 74 Conn. 586, 51 Atl. 544; Duggan v. 
 Slocuin, 83 Fed. 244; Lennig's Estate, 154 
 Pa. 209, 25 Atl. 1049; Allen v. Stevens, 161 
 N. Y. 122, 55 N. E. 568; Howard v. Society, 
 49 Me. 302. 
 
 In England, a gift to a charity which fail- 
 ed in the testator's lifetime is not within the 
 doctrine; [1898] 1 Ch. 19; otherwise, if the 
 charity never existed; [1902] 1 Ch. 276; or 
 if tbe name be left blank ; [1890] 2 Ch. 451, 
 C. A. It applies where there is a gift to a 
 charity which has failed, though there be a 
 gift over to a second charity; 1 Myl. & K. 
 410. It does not apply if the gift is not 
 charitable; 1 De G. F. & J. 399; or in case 
 of a gift for masses; 2 Drew. 425. The 
 cy pres scbeme will be settled as near as 
 possible to the testator's intention; 10 CI. & 
 F. 908. 
 
 CYROGRAPHARIUS. In Old English Law. 
 
 A cyrographer. An officer of the common 
 pleas court. 
 
 CYR0GRAPHUM. A chirograph, whicb 
 see.
 
 D. B. N., OK D. B. N. C. T. A. 
 
 747 
 
 DAM. 
 
 D 
 
 D. B. N., or D. B. N. C. T. A. See Execu- 
 tors AND AOMIMSIKATORS. 
 
 D. S. B. See Debet Sine Bbevb. 
 
 D. V. N. See Devisavit Vel Non. 
 
 DACION. In Spanish Law. The real and* 
 effective delivery of an object in the execu- 
 tion of a contract. 
 
 DAILY. Every day; day by day. Web. 
 Where a statute requires an advoiti 
 to be published in a daily newspaper it is 
 such if it uses the term "daily newspaper" 
 in contradistinction to the term "weekly," 
 "semi-weekly," or "tri-weekly" newspaper. 
 The term was used aud is to be understood 
 in its popular sense, and in this sense it is 
 clear that a paper which, according to its 
 usual custom, is published every day of the 
 week except one, is a daily newspaper; oth- 
 erwise a paper which is published every day 
 except Sunday would not be a daily news- 
 paper. Richardson v. Tobin, 45 Cal. 30. It 
 may include a legal journal ; Kellogg v. Car- 
 rico, 47 Mo. 157. 
 
 DAM. A construction of wood, stone, or 
 other materials, made across a stream of wa- 
 ter for the purpose of confining it; a mole. 
 See People v. Gaige, 2" Mich. 93; Colwell 
 v. Water Power Co., 19 N. J. Eq. 245. 
 
 It is an instrument for turning the water 
 of a stream to the use of a mill ; Burnham 
 v. Kempton, 44 N. H. 78. 
 
 The word is sometimes used for the p.ond 
 formed by the obstruction; Colwell v. Wa- 
 ter Power Co., 19 N. J. Eq. 245 ; Natoma Wa- 
 ter & Mining Co. v. Hancock, 101 Cal. 42, 31 
 Pac. 112, 35 Pac. 334; Hutchinson v. Ry. 
 Co., 37 Wis. 5S2 ; and it is held to be synony- 
 mous with dyke; Com. v. Tolman, 149 Mass. 
 229, 21 N. E. 377, 3 L. R. A. 747, 14 Am. St. 
 Rep. 414. The water collected by a dam is 
 not properly termed a reservoir, as its object 
 is not storage of water; Natoma Water & 
 Mining Co. v. Hancock, 101 Cal. 42, 31 Pac. 
 112, 35 Pac. 334. 
 
 The construction of dams in floatable 
 streams to facilitate their use is in some 
 states authorized by statute; Brooks v. Riv- 
 er Imp. Co., S2 Me. 17, 19 Atl. 87, 7 L. R. A. 
 460, 17 Am. St. Rep. 459; Kretzschmar v. 
 Meehan, 74 Minn. 211, 77 N. W. 41; Field v. 
 Log Driving Co., 67 Wis. 509, 31 N. W. 17; 
 McLaughlin v. Mfg. Co., 103 N. C. 100, 9 S. 
 E. 307; and incidental injuries to land of 
 riparian proprietors thereby damaged are 
 held to be consequential injuries incident to 
 their proprietorship; Brooks v. River Imp. 
 Co., 82 Me. 17, 19 Atl. 87, 7 L. R. A. 460, 17 
 Am. St. Rep. 459. See Loos; Riparian 
 Rights. 
 
 The owner of a stream not navigable may 
 erect a dam across it, provided he do not 
 
 thereby materially impair the rights of the 
 proprietors above or below I I 
 
 water in its :i ed How ; Gould, Wa- 
 
 ters 110, n.; Tyler v. Wilkinson, -1 Mas. 401, 
 Fed. Cas. No. 14,:; 1L'; Vandenburgb v. 
 gen, 13 Johns. (N. V.» 212; B< - 
 mings, 20 Johns. (N. V.i 90, LI Am D 
 Boynton v. Rees, 9 Pick. (Mass.) 528; Wi 
 worth v. Tillotson, 15 Conn. 366, ■':'■' Am. i ■ 
 :.'.ii ; Betrich v. Deachler, 6 Pa. 32; shrunk 
 v. Nav. Co., 14 s. & R. (Pa.) 71 ; Scott v. 
 Willson, '.'> X. II. 321; Daniels v. Saw In 
 l_7 Mass. 534; Voter v. Bobbs, 69 Me. L9; 
 Banna v. Clarke, 33 Gratt. < Va.) 36; D 
 Woolen Mill Co. v. Greer, 49 la. 490; 
 Am. L. Reg. 147, n. He may even detain 
 the water for the purposes of a mill, for a 
 reasonable time, to the injury of an older 
 mill, — the reasonableness of the detention in 
 each particular case being a question for 
 the jury; Ilart/.all v. Sill, 12 I'a. L'l^; Thom- 
 as v. Rrackney, 17 Barb. i.\. Y.i 654; - 
 v. Parsons, 28 vt. 459, 67 Am. Dec. 7•_ , .••.■. Park- 
 er v. Hotchkiss, 25 Conn. 321; Phillips v. 
 Sherman, 64 Me. 171; Drake v. Woolen Co., 
 9!) Mass. 574; Hoxsie v. Iloxsie, 3S Mich. 
 77; Ilolden v. Lake Co., 53 N. II. 552. Rut 
 he must not unreasonably detain the water ; 
 Dilling v. Murray, 6 Ind. 324, 63 Am. Dec. 
 385 ; and the jury may find the constant use 
 of the water by night and a detention of it 
 by day to be an unreasonable use, though 
 there be no design to injure others; Barrett 
 v. Parsons, 10 Cush. (Mass.) 367; see Bullard 
 v. Mfg. Co., 77 N. Y. 525. Nor has such own- 
 er the right to raise his dam so high as to 
 cause the stream to flow back upon the land 
 of supra-riparian proprietors; 1 B. & AM. 
 25S; Cowles v. Kidder, 24 N. II. 364, 57 Am. 
 Dec. 2S7; L'nion Canal Co. v. Reiser, 1'.' Pa. 
 134; Pitman v. Poor, 38 Me. 237; Ellington 
 v. Bennett, 59 Ga. 286; Drew v. Inhabitants 
 of Westtield, 124 Mass. 461. And see Back- 
 Water. These rights may, of course, be 
 modified by contract or prescription. 
 
 An owner maintaining a dam acr< 
 floatable stream is entitled to an injunction 
 againsl the operation of a splash dam by an 
 upper riparian owner in such manner as to 
 Interfere materially with the continuity of 
 his power and to till his pond and race with 
 dirt ; Trullinger v. Bowe, 53 Or. 219, ;>7 Pac. 
 548, 99 Pac. 880, 22 I.. R. A. (N. 8.) 545. 
 
 A mill proprietor may erect and maintain 
 dams in a floatable stream, but lie must keep 
 Cor the use of those that wish, a con- 
 venient and considerable .passageway for 
 logs through or by his dam; Lancey v. Clif- 
 ford, 51 Me. is:, 92 Am Dec. 563 ; Connecti- 
 cut River Lumber Co. v. Olcott Falls Co., 65 
 X. II. 290, 2] Atl. 1090, 13 L. R. A. 826>; 
 Powell v. Lumber Co.. L2 Idaho, 723, 88 Pac. 
 97; he may erect dividing piers to separate
 
 DAM 
 
 748 
 
 DAM 
 
 his logs from the common mass, but he must 
 make reasonable provision for the passage of 
 other logs without unreasonable hindrance; 
 A. C. Conn. Co. v. Mfg. Co., 74 Wis. 652, 43 
 N. W. 6G0. 
 
 One erecting fences and culverts across a 
 stream is not liable for injuries to an upper 
 riparian proprietor because they are not suf- 
 ficient to pass an extraordinary flood, due to 
 the giving way of a dam or to an unprec- 
 edented rainfall; American Locomotive Co. 
 v. Hoffman, 105 Va. 343, 54 S. E. 25, 6 L. R. 
 A. (N. S.) 252, 8 Ann. Cas. 773. Riparian 
 owners upon navigable fresh water lakes may 
 construct in the shore waters in front of their 
 lands wharves, piers, landings, and booms; 
 Revell v. People, 177 111. 468, 52 N. E. 1052, 
 43. L. R. A. 790, 69 Am. St. Rep. 257; Mobile 
 Transp. Co. v. City of Mobile, 153 Ala. 409, 
 44 South. 976, 13 L. R. A. (N. S.) 352, 127 
 Am. St. Rep. 34. 
 
 A state has full power, in the absence of 
 legislation by congress, to authorize dams 
 across interior streams although previously 
 navigable to the sea ; Manigault v. Springs, 
 199 U. S. 473, 26 Sup. Ct. 127, 50 L. Ed. 274. 
 If there be no license or act from which a 
 license will necessarily follow, a person 
 erecting a dam so as to flood the land of an- 
 other, is a trespasser and acts at his peril; 
 De Vaughn v. Minor, 77 Ga. 809, 1 S. E. 433. 
 When one side of the stream is owned by 
 one person and the other by another, neither, 
 without the consent of the other, can build a 
 dam which extends beyond the filum aquce, 
 thread of the river, without committing a 
 trespass ; Cro. Eliz. 269 ; Tyler v. Wilkinson, 
 4 Mas. 397, Fed. Cas. No. 14,312; Lindeman 
 v. Lindsey, 69 Pa. 93, 8 Am. Rep. 219. See 
 Lois des Bat. p. 1, c. 3, s. 1, a. 3 ; Pothier, 
 Trait6 du Contrat de SocUt^, second app. 
 236; Stiles v. Hooker, 7 Cow. (N. Y.) 266; 
 McCalniont v. Whitaker, 3 Rawle (Pa.) 90, 23 
 Am. Dec. 102; Anthony v. Lapham, 5 Pick. 
 (Mass.) 175; Goodwin v. Gibbs, 70 Me. 243. 
 Many of the states have statutes enabling 
 persons to build dams on their own land, al- 
 though in so doing the land of a higher ri- 
 parian owner may be overflowed ; and in 
 some cases this permission is given although 
 the party may own the land on one side only. 
 In all these instances, however, a remedy is 
 provided for assessing the damages resulting 
 from such dam. See Angell, Waterc. •§§ 482, 
 484. 
 
 Where the natural flow of water has been 
 collected by a permanent artificial dam into 
 an artificial channel, and such condition has 
 continued for more than twenty years, the 
 riparian owners acquire a prescriptive right 
 to have the water remain at such high stage, 
 and the person who placed the permanent 
 obstruction in the stream, and all other per- 
 sons claiming under him are estopped from 
 restoring the water to its original, state; 4 
 Hurlst. & C. 714; Jones, Easem. SOS; Washb. 
 
 Easem. $ 47 ; Woodbury v. Short, 17 Vt 3S7, 
 44 Am. Dec. 344; Belknap v. Trimble, 3 
 Paige Ch. (N. Y.) 577; Shepardson v. Per- 
 kins, 58 N. H. 354 ; Delaney v. Boston, 2 Harr. 
 (Del.) 489 ; Mathewson v. Hoffman, 77 Mich. 
 120, 43 N. W. 879, 6 L. R. A. 349 ; Smith v. 
 Youmans, 96 Wis. 103, 70 N. W. 1115, 37 L. 
 R. A. 285, 65 Am. St. Rep. 30; Murchie v. 
 Gates, 78 Me. 300, 4 Atl. 698 ; Canton Iron 
 fCo. v. Biwabik Bessemer Co., 63 Minn. 367,- 
 65 N. W. 643; City of Reading v. Althouse, 
 93 Pa. 400 ; Kray v. Muggli, 84 Minn. 90, S6 
 N. W. 882, 54 L. R. A. 473, 87 Am. St. Rep. 
 332, where the owner of the dam acquired 
 his right to maintain it by prescription. The 
 owners of the land flooded by the dam had 
 improved their property with reference to 
 the changed conditions, the court held that 
 a reciprocal right accrued to the owners of 
 the flooded lands to have the dam remain, 
 and that the person who maintained it could 
 not by # any affirmative act restore the stream 
 to its original condition. The decision is 
 criticised, as are certain expressions to the 
 same effect in Belknap v. Trimble, 3 Paige 
 Ch. (N. Y.) 577, as not being in accord with 
 the weight of authority; Farnham, Waters 
 2399; Lake Drummond Canal & Water Co. 
 v. Burnham, 147 N. C. 41, 60 S. E. 650, 17 
 
 L. R. A. (N. S.) 945, 125 Am. St. Rep. 527. 
 It is of the essence of such an easement (to 
 divert a stream by an artificial way) that it 
 exists for the benefit of the dominant tene- 
 ment alone. Being in its very nature a right 
 created for the benefit of the dominant own- 
 er, its exercise by him cannot create a new 
 right for the benefit of the servient owner. 
 Lilce any other right its exercise may be dis- 
 continued if it becomes onerous or ceases to 
 be beneficial to the party entitled; L. R. 6 
 Q. B. 578. In Lake Drummond Canal & Wa- 
 ter Co. v. Burnham, 147 N. C. 41, 60 S. E. 
 650, 17 L. R. A. (N. S.) 945, 125 Am. St. Rep. 
 527, it is said that decisions upholding the 
 rights of the servient owner may be upheld 
 under the doctrines of dedication and estop- 
 pel. 
 
 The degree of care which a party who con- 
 structs a dam across a stream is bound to 
 use, is in proportion to the extent of injury 
 which will be likely to result to third per- 
 sons provided it should prove insufficient. 
 It is not enough that the dam is sufficient to 
 .resist ordinary floods; for if the stream is 
 occasionally subject to great freshets, these 
 must likewise be guarded against; and the 
 measure of care required in such cases is 
 that which a discreet person would use if 
 the whole risk were his own; Lapham v. 
 Curtis, 5 Vt. 371, 26 Am. Dec. 310 ; Gray v. 
 Harris, 107 Mass. 492, 9 Am. Rep. 61 ; Washb. 
 Easem. *288; Bristol Hydraulic Co. v. Boy- 
 er, 67 Ind. 236 ; State v. Water Co., 51 Conn. 
 137. 
 
 If a mill-dam be so built that it causes a 
 watercourse to overflow the surrounding
 
 DAM 
 
 749 
 
 DAMAGE 
 
 country, where it becomes stagnant and un- 
 wholesome, so that the health of the neigh- 
 borhood is sensibly impaired, such dam Lfl a 
 public nuisance, for which its owner is lia- 
 ble to indictment; Douglass v. State, 4 Wis. 
 387. 
 
 The owners of a mill dam cannot interfere 
 with the right of the public to float lo 
 a stream; Lancey v. Clifford, 51 Me. I 
 Am. Dec. 5G1; but one injuring the dam of 
 a riparian owner by running logs down a 
 stream must show that the stream was navi- 
 gable; 20 U. C. C. P. 539. As to the right 
 of a riparian proprietor on a navigable 
 stream to recover for injuries to his dam by 
 the floating of logs down stream, see Logs, 
 which see also as to the conflicting rights of 
 dam owners and log driving companies. See 
 Carlson v. Imp. Co., 7:; Minn. 128, 75 N. W. 
 1044, 41 L. R. A. 372, 72 Am. St. Rep. 610? 
 Coyne v. Boom Co., 72 Minn. 533, 75 N. W. 
 748, 41 L. R. A. 494, 71 Am. St. Rep. 50s. So 
 it is an iudictable nuisance to erect a dam 
 so as to overflow a highway ; State v. Phipps, 
 4 Ind. 515; Com. v. Fisher, Mete, (Mass.) 
 433 ; see Stone v. Peckham, 12 R. I. 27 ; or so 
 as to obstruct the navigation of a public riv- 
 er ; Newark Plank Road Co. v. Elmer, 9 N. J. 
 Eq. 754 ; Tyrrell v. Lockhart, 3 Blackf. (Ind.) 
 13G ; Williams v. Beardsley, 2 Ind. 591 ; Mor- 
 gan v. King, 18 Barb. (N. Y.) 277; Bacon v. 
 Arthur, 4 Watts (Pa.) 437; Iloxsie v. Iloxsie, 
 38 Mich. 77 ; Lagrone v. Trice, 57 Miss. 227 ; 
 Ellis v. Harris' Ex'r, 32 Gratt. (Va.) CS4. See 
 Irrigation ; River; Watercourse ; Riparian 
 Proprietor; Police Power. 
 
 DAMAGE. The loss caused by one person 
 to another, or to his property, either with 
 the design of injuring him, or with negli- 
 gence and carelessness, or by inevitable acci- 
 dent. 
 
 In England, in the common law courts, it 
 was held that neither in common parlance 
 nor in legal phraseology is the word "dam- 
 age"' used as applicable to injuries done to 
 property ; 40 L. J. Q. B. 218 ; 41 L. J. C. P. 
 128. 
 
 The admiralty courts on the other hand 
 contended that the word did include claims 
 for personal injury and even for loss of life; 
 37 L. J. Adm. 14; 3S id. 12, 50; 46 L. J. P. 
 D. & A. 71; 2 P. D. 8. 
 
 But the House of Lords construing section 
 7 of the Admiralty Court Act, 24 Vict, c 10, 
 providing that "the High Court of Admiralty 
 shall have jurisdiction over auy claim for 
 damages done by any ship" established the 
 former doctrine, and held that a claim for 
 loss of life under Lord Campbell's Act Is not 
 a claim for damage within the provisions of 
 the Admiralty Court Act; 54 L. J. P. D. & 
 A. 9; 10 App. Cas. 59. 
 
 But the word may be controlled by the con- 
 text and can mean personal injury; 52 L. J. 
 Q. B. 395 : and there seems in this country 
 to be no distinction between the meaning of 
 the words damage and injury. 
 
 Damage to the person as used in the Mas- 
 sachusetts statute relating to survival of ac- 
 tions, does not extend to torts not dir 
 affecting the person, but includes every ac- 
 tion the substantial C 'lily 
 injury, as the negligent sale of deadly I 
 for a harmless drug as the resull 
 a man dies; Norton v. Sewall, 106 ! 
 8 Am. Rep. 298. 
 
 He who has caused the damage is bound 
 to repair it; and if he has done it mali- 
 ciously he may be compelled to pay I ■ 
 the actual loss; Fay v. Parker, ."..". N. II. 
 342, 16 Am. Rep. 270. When damag 
 by accident without blame to any one. tb<' 
 loss Is borne by the owner of the thing in- 
 jured: as, if a horse run away with his rider, 
 without any fault of the latter, and injure 
 the property of another person, the injury Is 
 the loss of the owner of the thing. When 
 the damage happens by the act of God, or 
 inevitable accident, as by tempest, earth- 
 quake, or other natural cause, the loss must 
 be borne by the owner. See Comyns, Dig. ; 
 Sedgwick; Mayne ; Sutherland Hale; 
 
 Field, Damages; 1 Rutherf. In.-t. 399; Com- 
 pensation; Damages; Measure of Dam- 
 ages. 
 
 DAMAGE CLEER. The tenth part in the 
 common pleas, and the twentieth part in the 
 king's bench and exchequer courts, of all 
 damages beyond a certain sum. which was to 
 be paid the prothonotary or chief otii>- 
 the court in which they were recovered be- 
 fore execution could be taken out. At first 
 it was a gratuity, and of uncertain propor- 
 tions. Abolished by stat 17 Car. II. c. 6. 
 Cowell; Tames de la Ley. 
 
 DAMAGE FEASANT (French, fa 
 dommage, doing damage). A term usually 
 applied to the injury which animals b 
 ing to one person do upon the land of anoth- 
 er, by feeding there, treading down his grass, 
 corn, or other production of the earth. 3 
 Bla. Com. 6; Co. Litt. 142, 161; Com 
 I'haihr (3 M. 26). 
 
 It "is the strictest distress, for the thing 
 distrained must be taken in the very act:" 
 Lord Holt in 12 Mod. 658; 3 Bla. Com. 6, 7. 
 By the common law, a distress of animals «,r 
 things damage feasant is allowed. Gilb. 
 
 I dst r. 21 ; Roll. Torts 17::. !7s. It W8 
 allowed by tbe ancient customs of Frame. 
 
 II Toullier 4<>2: Merlin. Rupert. I 
 1 Fournel, Abandon. See Animal. 
 
 DAMAGED GOODS. Goods subject to du- 
 ties, which have received some injury either 
 in the voyage home, or while bonded in ware- 
 house. 
 
 DAMAGES. The indemnity recoverable by 
 
 a person who has sustained an injury, either 
 in his person, property, or relative rights. 
 through the act or default of another. 
 
 The sum claimed as such indemnity by a 
 plaintiff in his declaration.
 
 DAMAGES 
 
 750 
 
 DAMAGES 
 
 The injury or loss for which compensation 
 is sought. 
 
 Compensatory damages. Those allowed as 
 a recompense for the injury actually re- 
 ceived. They cannot include an allowance 
 for inconvenience as well as injuries ; Jen- 
 son v. R. Co., 86 Wis. 5S9, 57 N. W. 359, 22 
 L. R. A. 680. 
 
 Consequential damages. Those which, 
 though directly, are not immediately, con- 
 sequential upon the act or default complain- 
 ed of. 
 
 Double or treble damages. See Measure 
 of Damages. 
 
 Exemplary damages. Those allowed for 
 torts committed with fraud, actual malice, 
 or deliberate violence or oppression, as a 
 punishment to the defendant, and as a warn- 
 ing to other wrong doers. Mayer v. Frobe, 
 40 W. Va. 246, 22 S. E. 58 ; Hale, Dam. 200; 
 Measure of Damages. 
 
 General damages. Those which necessarily 
 and by implication of law result from the 
 act or default complained of. 
 
 They are such as the jury may give when 
 the judge cannot point out any measure by 
 which they are to be ascertained, except the 
 opinion and judgment of a reasonable man. 
 They are such as by competent evidence are 
 directly traceable to a failure to discharge a 
 contract, obligation or duty imposed by law. 
 Bank of Commerce v. Goos, 39 Neb. 437, 58 
 N. W. 84, 23 L. R. A. 190. 
 
 Liquidated damages. See that title. 
 
 Nominal damages. See that title. 
 
 Punitive damages. See Measure of Dam- 
 ages. 
 
 S-pecial damages. Such as arise directly, 
 but not necessarily or by implication of law, 
 from the act or default complained of. 
 
 These are either superadded to general damages, 
 arising from an act injurious in itself, as when some 
 particular loss arises from the uttering of slander- 
 ous words, actionable in themselves, or are such as 
 arise from an act indifferent and not actionable in 
 itself, but injurious only in its consequences, as 
 when the words become actionable only by reason 
 of special damage ensuing. 
 
 Unliquidated damages. See Liquidated 
 Damages. 
 
 Vindictive damages. See Measure of 
 Damages. 
 
 In modern law, the term damages is not used in a 
 legal sense to include the costs of the suit; though 
 it was formerly so used. Co. Litt. 267 a; Dougl. 751. 
 
 The various classes of damages here given are 
 those commonly found in the text-books and in the 
 decisions of courts of common law. Other terms 
 are of occasional use (as resulting, to denote con- 
 sequential damages), but are easily recognizable as 
 belonging to some one of the above divisions. The 
 question whether damages are to be limited to an 
 allowance compensatory merely in its nature and 
 extent, or whether they may be assessed as a pun- 
 ishment upon a wrong-doer in certain cases for the 
 injury inflicted by him upon the plaintiff, received 
 much attention from the courts and was very fully 
 and vigorously discussed by Greenleaf and Sedg- 
 wick, the latter of whom, though supporting the 
 doctrine admitted that it was exceptional and anom- 
 alous and could not be logically supported; Sedgw. 
 Dam. § 353. He attributes the origin of the princi- 
 ple to the rule making juries the judges of the dam- 
 
 ages ; id. § 354. In cases of aggravated wrong there 
 were large verdicts and the courts were powerless, 
 although the early cases consisted mainly of setting 
 them aside. Originating in the unrestrained expres- 
 sions of judges in justifying verdicts, there grew 
 up this doctrine of exemplary damages characterized 
 as "a sort of hybrid between a display of ethical 
 indignation, and the imposition of a criminal fine." 
 The current of authorities set strongly (in numbers, 
 at least) in favor of allowing punitive damages; 
 Day v. Woodworth, 13 How. (U. S.) 363, 14 L. Ed. 
 181; and that rule of decision has prevailed in most 
 of the states, though in some it is repudiated en- 
 tirely ; Stilson v. Gibbs, 53 Mich. 280, 18 N. W. 815 ; 
 Hawes v. Knowles, 114 Mass. 518, 19 Am. Rep. 383; 
 Greeley, S. L. & P. R. Co. v. Yeager, 11 Colo. 345, 18 
 Pac. 211; Bixby v. Dunlap, 56 N. H. 456, 22 Am. 
 Rep. 475; and in others the doctrine is also de- 
 nied but exemplary damages were permitted on the 
 ground that they were compensatory merely for 
 mental suffering; Quigley v. R. Co., 11 Nev. 350, 
 21 Am. Rep. 757 ; Union Pac. R. R. Co. v. Hause, 1 
 Wyo. 27. This rule prevailed in West Virginia ; 
 Pegram v. Stortz, 31 W. Va. 220, 6 S. E. 485; Beck 
 v. Thompson, 31 W. Va. 459, 7 S. E. 447, 13 Am. St. 
 Rep. 870; but has been over-ruled; Mayer v. Frobe, 
 40 W. Va. 246, 22 S. E. 58. The argument against 
 such damages was based on the objection that it 
 admits of the infliction of pecuniary punishment to 
 an almost unlimited extent by an irresponsible jury, 
 a view which is theoretically more obnoxious (sup- 
 posing that there is no practical difference) than 
 that which considers damages merely as a compen- 
 sation, of the just amount of which the jury may 
 well be held to be proper judges. It also seemed to 
 savor somewhat of judicial legislation in a criminal 
 department to extend such damages beyond those 
 cases where an injury is committed to the feelings 
 of an innocent plaintiff. See 2 Greenl. Ev. § 253 ; 
 2 Sedgw. Dam. 323 ; 1 Kent 630 ; Grand Trunk R. 
 R. Co. v. Richardson, 91 U. S. 465, 23 L. Ed. 356; 
 Fay v. Parker, 53 N. H. 342, 16 Am. Rep. 270, where 
 the terms exemplary, vindictive and punitive or 
 punitory are considered as synonymous, and the 
 cases and authorities are exhaustively reviewed. 
 
 Direct is here used in opposition to remote, and 
 immediate to consequential. 
 
 In Pleading. In personal and mixed ac- 
 tions (but not in penal actions, for obvious 
 reasons) , the declaration must allege, in con- 
 clusion, that the injury is to the damage of 
 the plaintiff, and must specify the amount 
 of damages; Com. Dig. Pleader (C. 84); 10 
 Co. 116 b. 
 
 In personal actions there is a distinction 
 between actions that sound in damages and 
 those that do not; but in either of these 
 cases it is equally the practice to lay dam- 
 ages. There is, however, this difference: 
 that, in the former case, damages are the 
 main object of the suit, and are, therefore, 
 always laid high enough to cover the whole 
 demand; but in the latter, the liquidated 
 debt, or the chattel demanded, being the 
 main object, damages are claimed in respect 
 of the detention only of such debt or chattel, 
 and are, therefore, usually laid at a small 
 sum. The plaintiff cannot recover greater 
 damages than he has laid in the conclusion 
 of his declaration; Com. Dig. Pleader (C. 
 84) ; 10 Co. 117 a, b; Viner, Abr. Damages 
 (R.); 1 Bulstr. 49; 2 W. Bla. 1300; Curtiss 
 v. Lawrence, 17 Johns. (N. Y.) Ill; Fish v. 
 Dodge, 4 Denio (N. Y.) 311, 47 Am. Dec. 254; 
 Fowlkes v. Webber, 8 Humphr. (Tenn.) 530; 
 New Jersey Flax Cotton Wool Co. v. Mills, 
 26 N. J. L. 60. See Ad Damnum. A verdict
 
 DAMAGES 
 
 751 
 
 DAMAGES 
 
 for larger damages than are alleged or 
 proved should be set aside; Texas & P. R. 
 Co. v. Morin, GG Tex. 133, 18 S. W. 345. 
 
 In real actions no damages are to he laid, 
 because in these the demand is specially for 
 the land withheld, and damages are in no 
 degree the object of the suit; Stepb. PL 426 ; 
 1 Chit. PI. 397-400. 
 
 General damages need not be averred in 
 the declaration; nor need any specific proof 
 of damages be given to enable the plaintiff 
 to recover. The legal presumption of Injury 
 in cases where it arises is sufficient to main- 
 tain the action. Whether special damage be 
 the gist of the action, or only collateral 
 thereto, it must be particularly stated in the 
 declaration, as the plaintiff will not other- 
 wise be permitted to go into evidence of it 
 at the trial, because the defendant cannot 
 also be prepared to answer it. See 2 Sedgw. 
 Dam. GOG ; 4 Q. B. 493; 7 C. & P. S04 ; Agnew 
 v. Johnson, 22 Pa. 471, G2 Am. Dec. 303; Pat- 
 ten v. Libhey, 32 Me. 379; Town of Troy v. 
 R. Co., 23 N. H. 83, 55 Am. Dec. 177 ; Brizsee 
 v. May bee, 21 Wend. (N. Y.) 144; Rice v. 
 Coolidge, 121 Mass. 393, 23 Am. Rep. 279; 
 Xunan v. San Francisco, 38 Cal. GS9; Tom- 
 linson v. Town of Derby, 43 Conn. 5G2 ; Par- 
 ker v. Burgess, 64 Vt. 442, 24 Atl. 743 ; Oliver 
 v. Perkins, 92 Mich. 304, 52 N. W. GOO; Rob- 
 erts v. Graham, 6 Wall. (U. S.) 578, 18 L. 
 Ed. 791. 
 
 In Practice. To constitute a right to re- 
 cover damages, the party claiming damages 
 must have sustained a loss; the party 
 against whom they are claimed must be 
 ehargoahle with a wrong; the loss must be 
 the natural and proximate consequence of 
 the wrong. 
 
 There is no right to damages, properly so 
 called, where there is no loss. A sum in 
 which a wrong-doer is mulcted simply as 
 punishment for his wrong, and irrespective 
 of any loss caused thereby, is a "fine," or 
 a "penalty," rather than damages. Dam- 
 ages are based on the idea of a loss to he 
 eornpensated, a damage to be made good; 
 Yates v. Joyce, 11 Johns. (N. Y.) 136; Smith 
 v. Sherwood, 2 Tex. 4G0; Allison v. McCune, 
 15 Ohio 72G, 45 Am. Dec. CO."); Webb v. Mfg. 
 Co., 3 Sumn. 192, Fed. Cas. No. 17,322; Lin- 
 ton v. Hurley, 104 Mass. 353; 1G Q. B. D. 
 013. See Dayton v. Parke. 142 N. V. 391, ::7 
 N. E. 012; Hale, Dam. 3. This loss, how- 
 ever, need not always he distinct and defi- 
 nite, capable of exact description or of 
 urement in dollars and cents. A suffi< lent 
 loss to sustain an action may appear from 
 the mere nature of the case itself. The law 
 in many cases presumes a loss where a wil- 
 ful wrong is proved; and thus also damages 
 are awarded for injured feelings, bodily pain, 
 grief of mind, injury to reputation, and for 
 other sufferings which it would he Impossible 
 to make subjects of exact proof and computa- 
 tion in respect to the amount of the loss sus- 
 tained; Tilden v. Metcalf, 2 Day (Conn.) 
 
 259; Johnson v. Courts, 3 II. & M- II. Old > 
 
 510; Ratllff v. Buntly, 27 \. I .545; Wilklns 
 
 v. Gilmore, 2 Bumphr. (Tenn.) 140; Hu 
 
 v. Bacon, 15 Conn. 267; Jei nl Idox, 
 
 s B. Monr. I Ky.) 432; Batt 
 
 94 Mich. no. 54 X. W. 766; White v. Bi 
 
 112 X. c. 323, 16 s. i:. 922; I 
 
 R. Co. v. Christian, 39 111. App. 495; 1! 
 
 Bonner, 82 Tex. ::::, 17 s. w. 605, 14 L. R a. 
 
 336, 27 Am. St. Rep. 850. 
 
 The rule is not that a loss must he 
 proved by evidence, but that one must ap- 
 pear, cither by evidence or by presumption, 
 founded on the nature of the case. 
 
 There is no right to damages where there 
 is no wrong. It is not necessary that there 
 should he a tort, strictly so called. — a wilful 
 wrong, an act involving moral guilt The 
 wrong may be either a wilful, malicious in- 
 jury, as in tlie case of assault and battery, 
 libel, and the like, or one committed through 
 mere motives of interest, as in many 
 of conversion of goods, trespasses on land, 
 etc.; or it may consist in a mere neglect t" 
 discharge a duty with suitable skill or fidel- 
 ity, as where a surgeon is held liable for 
 malpractice, a sheriff for the escape of his 
 prisoner, or a carrier for the neglect to de- 
 liver goods; or a simple breach of contract, 
 as in case of refusal to deliver goods sold, 
 or to perform services under an agreement ; 
 or it may be a wrong of another person for 
 whose act or default a legal liability exists, 
 as where a master is held liable for an in- 
 jury done by his servant or apprentice, or 
 a railroad company for an accident result- 
 ing from the negligence of its engineer. But 
 there must be something which the law rec- 
 ognizes as a wrong, some breach of a legal 
 duty, some violation of a legal right, some 
 default or neglect, some failure in responsi- 
 bility, sustained by the party claiming dam- 
 ages. For the sufferer by accident or by the 
 innocent or rightful acts of another cannot 
 claim indemnity for his misfortune. It is 
 called damnum absque injuria, — a loss with- 
 out a wrong, for which the law gives no 
 edy; Pollock, Torts 22, 175; Bartholomew 
 v. Bentley, 15 Ohio G59, 45 Am. Dec. 
 11 M. & W. 755; Bowland v. Vincent, i<> 
 Mete. (Mass.) 371, 43 Am. Dec. 442i Losee 
 v. Buchanan, 51 X. Y. 470, 10 Am. Rep. 623; 
 Marshall v. Welwood, 38 X. J. L. 339, 20 
 Am , Rep. 394; Brown v. Collins, 53 N. H. 
 442, 16 Am. Rep. 372; Chase v. silver 
 62 Me. nr>. io Am. Rep. 419; Trustees, 
 of Village of Delhi v. Younfans. 7.0 Barb. (X. 
 Y.l 316; Baltimore & P. R ' Jo. v. Reaney, 
 42 Md. 110: Shipley v. Fifty Associates, 0"; 
 Mass. 194, 8 Am. Rep. ."is: L. R. 3 11. I,. 
 ;;::<>: Egan v. Bart, 45 La. Ann. 1358, m 
 South. -J It: Booth v. R. Co., 140 X. Y. 267, 
 35 N. E. 592, 24 L. R. A. 105, .':7 Am. St. Rep. 
 552. 
 
 See Pamxi'm Ahsque'Injubia. 
 The obligation violated must also be one 
 owed to the plaintiff. The neglect of a duty,
 
 DAMAGES 
 
 752 
 
 DAMAGES 
 
 which the plaintiff had no legal right to 
 enforce, gives no claim to damages, though 
 perhaps it is better said, gives no right of 
 action. Thus where a postmaster was re- 
 quired by law to advertise in the newspaper 
 in his city having the largest circulation, and 
 chose another newspaper, it was merely a 
 breach of a duty he owed to the public and 
 not to the owner of the newspaper having 
 the largest circulation; Strong v. Campbell, 
 11 Barb. (N. Y.) 135. 
 
 Whether when the law gives judgment on 
 a contract to pay money — e. g. on a promis- 
 sory note — this is to be regarded as enforc- 
 ing performance of the promise, or as award- 
 ing damages for the breach of it, is a ques- 
 tion on which jurisconsults have differed. 
 Regarded in the latter point of view, the de- 
 fault of payment is the wrong on which the 
 award of damages is predicated. 
 
 The loss must be the natural and proxi- 
 mate consequence of the wrong ; 2 Greenl. 
 Ev. § 256; 2 Sedgw. Dam. 362; Field, Dam. 
 42; Hale, Dam. 4. Smith v. Bolles, 132 U. 
 S. 125, 10 Sup. Gt. 39, 33 L. Ed. 279. Or, as 
 others have expressed the idea, it must be 
 the "direct and necessary," or "legal and nat- 
 ural," consequence. It must not be "remote" 
 or "consequential." The loss must be the 
 natural consequence. Every man is expected 
 —and may justly be — to foresee the usual 
 and natural consequences of his acts, and for 
 these he may justly be held accountable ; but 
 not for consequences that could not have 
 been foreseen; Dickinson v. Boyle, 17 Pick. 
 (Mass.) 78, 28 Am. Dec. 281; Donnell v. 
 Jones, 13 Ala. 490, 48 Am. Dec. 59; Vedder v. 
 Hildreth, 2 Wis. 427 ; Walker & Langford v. 
 Ellis & Moore, 1 Sneed (Tenn.) 515 ; Young 
 v. Tustin, 4 Blackf. (Ind.) 277; 6 Q. B. 928; 
 Fritts v. R. Co., 62 Conn. 503, 26 Atl. 347; 
 Swain v. Schieffelin, 134 N. Y. 471, 31 N. E. 
 1025, 18 L. R. A. 385. See Malone v. R. R., 
 152 Pa. 390, 394, 25 Atl. 638; Taylor Mfg. 
 Co. v. Hatcher Mfg. Co., 39 Fed. 440, 3 L. R. 
 A. 587. It must also be the proximate con- 
 sequence. Vague and indefinite results, re- 
 mote and consequential, and thus uncertain, 
 are not embraced in the compensation given 
 by damages. It cannot be certainly known 
 that they are attributable to the wrong, or 
 whether they are not rather connected with 
 other causes ; Hatchell v. Kirubrough, 49 N. 
 C. 163; 1 Sm. L. Cas. 302. See Engelsdorf 
 v. Sire, 64 Hun 209, 18 N. Y. Supp. 907; 
 Brooke v. Bank, 69 Hun 202, 23 N. Y. Supp. 
 802. 
 
 In cases of tort the rule has been thus 
 stated : "The question is not what cause 
 was nearest in time or place to the catas- 
 trophe. This is not the meaning of the 
 maxim causa proxima non remota spectatur. 
 The proximate cause is the efficient cause, 
 the one that sets the other causes in opera- 
 tion. The causes that are merely incidental, 
 or instruments of a superior or controlling 
 agency, are not the proximate causes, and 
 
 the responsible ones, though they may be 
 nearer in time to the result. It is only when 
 the causes are independent of each other that 
 the nearest is, of course, to be charged with 
 the disaster;" ^tna Insurance Co. v. Boon, 
 95 U. S. 117, 24 L. Ed. 395. See Causa Pbox- 
 ima Non Remota Spectatur. 
 
 "The true inquiry is, whether the injury 
 sustained was such as, according to com- 
 mon experience and the usual course of 
 events, might reasonably be anticipated;" 
 Derry v. Flitner, 118 Mass. 131. See L. R. 
 10 Q. B. Ill; Pullman Palace Car Co. v. 
 Barker, 4 Colo. 344, 34 Am. Rep. 89; Lake 
 Erie & W. R. Co. v. Close, 5 Ind. App. 444, 
 32 N. E. 588. 
 
 The foregoing are the general principles 
 on which the right to recover damages is 
 based. Many qualifying rules have been es- 
 tablished, of which the following are among 
 the more important instances. In an action 
 for damages for an injury caused by negli- 
 gence, the plaintiff must himself appear to 
 have been free from fault; for if his own 
 negligence in any degree contributed directly 
 to produce the injury, he can recover noth- 
 ing. The law will not attempt to apportion 
 the loss according to the different degrees of 
 negligence of the two parties ; 1 C. & P. 181 ; 
 Miller v. Trustees of Mariner's Church, 7 Me. 
 51, 20 Am. Dec. 341; Loker v. Damon, 17 
 Pick. (Mass.) 284; Hay v. Cohoes Co., 3 
 Barb. (N. Y.) 49; Murphy v. Diamond, 3 La. 
 Ann. 441; Galbraith v. Fleming, 60 Mich. 
 403, 27 N. W. 581 ; though this rule has in 
 some cases been relaxed in favor of the plain- 
 tiff ; L. R. 1 Ap. Ca. 754 ; e. g., if the injury 
 would have occurred although the plaintiff 
 had been free from negligence ; 8 C. B. N. S. 
 115 ; Newhouse v. Miller, 35 Ind. 463 ; Walsh 
 v. Transp. Co., 52 Mo. 434; Lindsey v. Town 
 of Danville, 45 Vt. 72 ; or if the injury is 
 wilful; Cook v. R. & Bank. Co., 67 Ala. 533; 
 Terre Haute & I. R. Co. v. Graham, 95 Ind. 
 286, 48 Am. Rep. 719; Lake Shore & M. S. 
 R. Co. v. Bodemer, 139 111. 596, 29 N. E. 692, 
 32 Am. St. Rep. 218. See Negligence. There 
 is no right of action by an individual for 
 damages sustained from a public nuisance, 
 so far as he only shares the common injury 
 inflicted on the community; 5 Co. 72. For 
 any special loss suffered by himself alone, 
 he may recover; 4 Maule & S. 101 ; 2 Bingh. 
 263; 1 Bingh. N. C. 222 ; 2 id. 281 ; Baxter 
 v. Turnpike Co., 22 Vt. 114, 52 Am. Dec. 84; 
 Proprietors of Quincy Canal v. Newcomb, 7 
 Mete. (Mass.) 276, 39 Am. Dec. 778; Mayor, 
 etc., of Pittsburgh v. Scott, 1 Pa. 309; O'Brien 
 v. R. Co., 17 Conn. 372 ; but in so far as the 
 whole neighborhood suffer together, resort 
 must he had to the public remedy; 7 Q. B. 
 339; Proprietors of Quincy Canal v. New- 
 comb, 7 Mete. (Mass.) 276, 39 Am. Dec. 778; 
 Barr v. Stevens, 1 Bibb (Ky.) 293. Judicial 
 officers are not liable in damages for errone- 
 ous decisions. See Judge; Last Cleab 
 Chance.
 
 DAMAGES 
 
 753 
 
 DAMAGES 
 
 Where the wrong committed by the de- 
 fendant amounted to a felony, the .English 
 rule was that the private remedy by action 
 was stayed till conviction for the felony 
 was had. This was in order to stimulate 
 the exertions of private persons injured by 
 the commission of crimes to bring offenders 
 to justice. This rule has, however, been 
 changed in some of the United States. Thus, 
 in New York it is enacted that when the 
 violation of a right admits of both a civil 
 and criminal remedy, one is not merged in 
 the other. And see Boardman v. Gore, 15 
 Mass. 33G; Ocean Ins. Co. v. Fields, 2 Stor. 
 50, Fed. Cas. No. 10,400; Turner's Case, 
 Ware 78, Fed. Cas. No. 14,248. A criminal 
 prosecution and conviction for an assault 
 and battery is not a bar to the recovery of 
 punitive damages in a civil action for the 
 same offence ; but it may be shown in miti- 
 gation of damages; Rhodes v. Rodgers, 151 
 Pa. 634, 24 Atl. 1044; but see Roach v. Cald- 
 beck, 64 Vt. 593, 24 Atl. 989. When a serv- 
 ant is injured through the negligence of a 
 fellow-servant employed in the same enter- 
 prise or avocation, the common employer is 
 not liable for damages. The servant, in en- 
 gaging, takes the risk of injury from the neg- 
 ligence of his fellow-servants; McKinn. Fel- 
 low-Serv. 18 ; Farwell v. R. Corporation, 4 
 Mete. (Mass.) 49, 38 Am. Dec. 339; Hubgh 
 v. R. Co., 6 La. Ann. 495 ; Ryan v. R. Co., 23 
 Pa. 384 ; Coon v. R. Co., 5 N. Y. 493; Shields 
 v. Yonge, 15 Ga. 349, GO Am. Dec. CDS ; Hon- 
 ner v. R. Co., 15 111. 550 ; Cleveland, C. & C. 
 R. Co. v. Keary, 3 Ohio St. 201; 5 Exch. 343. 
 But this rule does not exonerate the master 
 from liability for negligence of a servant in 
 a different employment. See Master and 
 Servant. But this rule has been altered in 
 some states, and by act of congress in cer- 
 tain cases; see Employers' Liability Acts. 
 . By the common law, no action was main- 
 tainable to recover damages for the death of 
 a human being; 1 Campb. 493; Carey v. R. 
 Co., 1 Cush. (Mass.) 475, 48 Am. Dec. 616; 
 Hendrick v. Walton, 69 Tex. 192, 6 S. W. 749. 
 As to the right under statutes, see Death. 
 
 Excessive or inadequate damages. Even in 
 that large class of cases in which there is no 
 fixed measure of damages, but they are left 
 to the discretion of the jury, the court has 
 a certain power to review the verdict, and to 
 set it aside if the damages awarded are 
 grossly excessive or unreasonably inadequate. 
 The rule is, however, that a verdict will not 
 be set aside for excessive damages unless 
 the amount is so large as to satisfy the court 
 that the jury have been misled by passion, 
 prejudice, ignorance, or partiality; Field, 
 Dam. 683; Clapp v. R. Co., 19 Barb. (N. Y.) 
 461; Treanor v. Donahoe, 9 Cush. (Mass.) 
 228; Kountz v. Brown, 16 B. Monr. (Ky.) 
 577; Nicholson v. R. Co., 22 Conn. 71, 56 Am. 
 Dec. 390 ; Bell v. Morrison, 27 Miss. (38 : Lang 
 v. Hopkins, 10 Ga. 37 ; Marshall v. Gunter, 
 6 Rich. (S. C.) 419; Payne v. Steamship Co., 
 Bouv.— 48 
 
 1 Cal. 33; George v. Law, id. 363; Farish v. 
 Reigle, 11 Grat (Va.'i 697, 62 Am. Dec. 66G; 
 Dwyer v. It. Co., 52 I i L 87; City of Delphi 
 v. Lowery, 74 Ind. 520, 39 Am. Hep. 9S ; Gale 
 \. B. Co., 7G N. Y. 594; ee Coal & 
 
 Railroad Co. v. Roddy, 85 Ten S. W. 
 
 286. But this power is very sparingly 
 and cases are numerous in which the • 
 have e aselves dissatisfied with 
 
 the verdict, but have refused to Interfere, on 
 the ground that the case did not come within 
 this rule. See Potter v. Thompson, 22 
 (N. Y.) 87; Woodson v. Scott. 20 Mo. 272; 
 Sexton v. Brock, 15 Ark. 345; Barnette v. 
 I licks, 6 Tex. 352; Spencer v. McMasters, 16 
 111. 405; Whipple v. Mfg. Co., 2 Sto. 
 Fed. Cas. No. 17,516 ; Vreeland v. Berry, 21 
 N. J. L 183; McDermott v. Ry. Co., 85 Wis. 
 L02, 55 N. W. 179; Slette v. Ry. Co., 53 Minn. 
 341, 55 N. W. 137. 
 
 As a general rule, in actions of tort the 
 court will not grant a new trial on the 
 ground of the smalluess of damages; 12 
 Mod. 150; 2 Stra. 940; 24 E. L. & Eq. 406. 
 But they have the power to do so in a prop- 
 er case; and in a few instances in which the 
 jury have given no redress at all, when some 
 was clearly due, the verdict has been set 
 aside; Richards v. Sandford, 2 E. D. Sm. 
 (N. Y.) 349: 4 Q. B. 917. 
 
 An important case sustaining this view 
 is reported in 5 Q. B. D. 78 : there two ver- 
 dicts of £7,000 and £16,000, respectively, were 
 successively set aside as inadequate. 
 
 In the cases in which there is a fixed legal 
 rule regulating the measure of damages, it 
 must be stated to the jury by the presidincr 
 judge upon the trial. His failure to state it 
 correctly is ground of exception; and if the 
 jury disregard the instructions of the court 
 on the subject, their verdict may be set aside. 
 In so far, however, as the verdict is an hon- 
 est determination of questions of fact prop- 
 erly within their province, it will not. in 
 general, be disturbed. Sedgw. Dam. 604. 
 See Consequential Damages: Measube of 
 Damages ; Damage. 
 
 DAME. A woman of rank, high social 
 position, or culture; specifically, in Greal 
 Britain, the legal title of the wife or widow 
 of a knight or baronet. Cent. Diet. 
 
 DAMNA (Lat. damnum). Damages, both 
 inclusive and exclusive of costs. 
 
 DAMNATUS. In Old English Law. Con 
 demned; prohibited by law; unlawful 
 Damnatus coitus, an unlawful connection 
 Black, L. Diet. 
 
 DAMNI INJURI/E ACTIO (Lat). In Civ- 
 il Law. An action for the damage done by 
 one who intentionally injured the beast of 
 another. Calvinus, Lex 
 
 DAMNOSA H/€REDITAS. A name given 
 by Lord Kenyon to that species of property 
 of a bankrupt which, so far from being valu- 
 able, would be a charge to the creditors : for 

 
 DAMNOSA HiEREDITAS 
 
 754 
 
 DANEGELD 
 
 example, a term of years where the rent 
 would exceed the revenue. 
 
 The assignees are not bound to take such 
 property; but they must make their elec- 
 tion, and having once entered into posses- 
 sion they cannot afterwards abandon the 
 property ; 7 East 342 ; 3 Campb. 340. 
 
 DAMNUM (Lat). That which is taken 
 away; loss; damage; legal hurt or harm. 
 Anderson, L. Diet. 
 
 DAMNUM ABSQUE INJURIA (Lat. injury 
 without wrong). A wrong done to a man for 
 which the law provides no remedy. Broom. 
 Max. 1. See Damages. 
 
 Injuria is here to be taken in the sense of legal 
 injury; and where no malice exists, there are many 
 cases of wrong or suffering inflicted upon a man for 
 which the law gives no remedy ; 2 Ld. Raym. 595 ; 
 11 M. & W. 755 ; Lamb v. Stone, 11 Pick. (Mass.) 527. 
 Thus, if the owner of property, in the prudent exer- 
 cise of his own right of dominion, does acts which 
 cause loss to another, it is damnum absque injuria; 
 Gardner v. Heartt, 2 Barb. (N. Y.) 168; Howland 
 v. Vincent, 10 Mete. (Mass.) 371, 43 Am. Dec. 442; 
 Trout v. McDonald, 83 Pa. 144; see Pennsylvania 
 Coal Co. v. Sanderson, 113 Pa. 126, 6 Atl. 453, 57 
 Am. Rep. 445 ; 10 M. & W. 109. A railroad company 
 which exercises due care in blasting on its own 
 land, in order to lay its tracks, is not liable for 
 injury to adjoining property arising merely from 
 the incidental jarring ; Booth v. R. Co., 140 N. Y. 
 2G7, 35 N. E. 592, 24 L. R. A. 105, 37 Am. St. Rep. 
 552. See Blasting. The location and operation of 
 a railroad in a street, the bed of which does not be- 
 long to an abutting property owner, is, as to him, 
 damnum absque injuria; otherwise if he own the 
 bed of the street; Grand Rapids & I. R. Co. v. 
 Heisel, 38 Mich. 62, 31 Am. Rep. 306. The ringing 
 of bells, sounding of whistles and other noises, and 
 the emission of smoke by railroads, are damnum 
 absque injuria; Aldrich v. R. Co., 195 111. 456, 63 
 N. E. 155, 57 L. R. A. 237. 
 
 So, too, acts of public agents within the scope of 
 their authority, if they cause damage, cause simply 
 damnum absque injuria (q. v.) ; Sedgw. Dam. 29, 
 111 ; Callender v. Marsh, 1 Pick. (Mass.) 418 ; 
 Bridge over River Lehigh v. Nav. Co., 4 Rawle 
 (Pa.) 9, 26 Am. Dec. Ill; Graves v. Otis, 2 Hill 
 (N Y.) 466 ; Hollister v. Union Co., 9 Conn. 436, 25 
 Am. Dec. 36; Hatch v. R. Co., 25 Vt. 49; Miller 
 v New York, 109 U. S. 395, 3 Sup. Ct. 228, 27 L. Ed. 
 971 ; Hamilton v. R. Co., 119 U. S. 284, 7 Sup. Ct. 
 206 30 L. Ed. 393; Hart v. Aqueduct Corp., 133 
 Mass. 489 ; 2 B. & Aid, 646. See Ashby v. White, 1 
 Smith, Lead. Cas. 244 ; and Weeks, Doc. of Dam. 
 Abs. Inj. 
 
 The state, in locating its public levees, acts in the 
 exercise of its police powers, and private injury re- 
 sulting therefrom is damnum absque injuria; Egan 
 v. Hart, 45 La. Ann. 1358, 14 South. 244. 
 
 See Mental Suffering. 
 
 DAMNUM FATALE. In Civil Law. Dam- 
 ages caused by a fortuitous event or inevi- 
 table accident ; damages arising from the act 
 of God. 
 
 Among these were included losses by ship- 
 wreck, lightning, or other casualty; also 
 losses by pirates, or by vis major, by fire, 
 robbery, and burglary; but theft was not 
 numbered among these casualties. In gen- 
 eral, bailees are not liable for such damages; 
 Story, Bailm. 471. 
 
 DANEGELD. A tax or tribute imposed up- 
 on the English when the Danes got a footing 
 in their island. From about the year 991 
 
 the Danegeld was levied and paid to the 
 Danes as a tribute. In its later form, from 
 1012, it was a tax levied to pay the wages 
 of a Danish fleet in the service of the Eng- 
 lish crown. It was abolished about 1051. 
 It was levied again by William in 1083-4, 
 and it was with a view of amending its as- 
 sessment that the survey of the kingdom 
 called Domesday was undertaken ; 2 Holdsw. 
 Hist. E. L. 119. A detailed history of the 
 Danegeld cannot be written; Maitl. Domes- 
 day and Beyond 3. 
 
 DANE LAGE, or DANE LAW. The laws 
 of the Danes which obtained in the eastern 
 counties and part of the midland counties 
 of England in the eleventh century. 1 Bla. 
 Com. 65. 
 
 DANGEROUS WEAPON. One dangerous 
 to life. Cosby v. Com., 115 Ky. 221, 72 S. 
 W. 10S9. One likely to produce death. State 
 v. Johns, 6 Pennewill (Del.) 174, 65 Atl. 763; 
 or great bodily injury; People v. Fuqua, 58 
 Cal. 245. This must often depend upon the 
 manner of using it; Hunt v. State, 6 Tex. 
 App. 663 ; and the question should go to the 
 jury. A distinction is made between a dan- 
 gerous and a deadly weapon ; United States 
 v. Small, 2 Curt. 241, Fed. Cas. No. 16,314. 
 It is said to be anything with which death 
 can be easily and readily produced, with a 
 reference to the manner in which it was used 
 and the part of the body upon which the 
 blow was struck with it; Acers v. U. S., 164 
 U. S. 388, 17 Sup. Ct. 91, 41 L. Ed. 481. The 
 following have been held to be deadly weap- 
 ons: A chisel; Com. v. Branham, 8 Bush 
 (Ky.) 387; a heavy iron weight or other 
 ponderous instrument ; State v. West, 51 N. 
 C. 506; Killer v. Com., 124 Pa. 92, 16 Atl. 
 495; McReynolds v. State, 4 Tex. App. 327; 
 a sledgehammer; Philpot v. Com., 86 Ky. 
 595, 6 S. W. 455 ; a heavy pistol used as a ' 
 bludgeon ; Prior v. State, 41 Ga. 155 ; a club ; 
 State v. Phillips, 104 N. C. 786, 10 S. E. 463 ; 
 a piece of timber; State v. Alfred, 44 La. 
 Ann. 582, 10 South. S87; a pocket knife; 
 State v. Scott, 39 La. Ann. 943, 3 South. 83 ; 
 a razor; Scott v. State, 42 Tex. Cr. Pt. 607, 
 62 S. W. 419; an axe; Dollarhide v. U. S., 
 Morris (la.) 233, 39 Am. Dec. 460; State v. 
 Shields, 110 N. C. 497, 14 S. E. 779; but 
 where its size, weight, character and kind 
 are not shown, it is held that it cannot be 
 so regarded; Melton v. State, 30 Tex. App. 
 273, 17 S. W. 257; Gladney v. State (Tex.) 
 12 S. W. 868. A jacknife may be a danger- 
 ous weapon in fact, but whether it was such 
 as matter of law was not decided; Com. v. 
 O'Brien, 119 Mass. 342, 20 Am. Rep. 325. 
 A heavy oak stick, three feet long and an 
 inch thick, is a dangerous weapon but not a 
 "deadly" weapon in the sense that from the 
 use of it alone an attack would be as matter 
 of law an aggravated assault under a Texas 
 statute; Pinson v. State, 23 Tex. 579. See 
 Arms ; Weapons. And to the same effect,
 
 DANGEROUS WEAPON 
 
 75i 
 
 DANGEROUS WEAPON 
 
 People v. Perales, 141 Cal. 581, 75 Pac. 170; 
 Renou v. State, 5G Tex. Cr. R. 343, 120 S. 
 \V. 174; Taylor v. Stat.-, ins Qa. 384, 34 S. 
 E. 2; Kelly v. State, GS Miss. 343, 8 South. 
 745. 
 
 In one way it may be true that sticks or 
 clubs are not deadly weapons. Carrying 
 them does not import any hostile intent, nor, 
 even in view of an expected affray, a design 
 to take life. But when a fight is actually 
 going on, they may become weapons of a 
 very deadly character; Allen v. U. S., 157 
 U. S. 075, 15 Sup. Ct. 720, 39 L. Ed. 854. 
 When its size and the manner of its use is 
 shown, it may be left to the jury to say 
 whether a stick or club or piece of plank is 
 a deadly weapon of a character likely to 
 produce death or great bodily harm; 
 v. Nueslein, 25 Mo. Ill; Allen v. State, 148 
 Ala. 5S8, 42 South. 1000; State v. Brown, 
 07 la. 289, 25 N. W. 24S. A weapon cannot 
 be said as a matter of law to be deadly, 
 without reference to the manner of its use; 
 Crow v. State, 55 Tex. Cr. R. 200, 110 S. W. 
 52, 21 L. R. A. (N. S.) 497, where a baseball 
 hat is held not to be per se a deadly weapon, 
 though it has been said, if viciously used, it 
 would probably be so considered ; State v. 
 Brown, 07 la. 289, 25 N. W. 248. A piece 
 of gas pipe 4 feet long and weighing about 
 4 pounds was held a deadly weapon per se; 
 State v. Drumin, 150 Mo. 210, 50 S. W. 1080 ; 
 as was a hoe ; Hamilton v. People, 113 111. 
 34, 55 Am. Rep. 390; Krchnavy v. State, 43 
 Neb. 337, 01 N. W. 028; a pitchfork; Evans 
 v. Com., 12 S. W. 707, 11 Ky. L. Rep. 551. 
 a stone may be; State v. Wilson, 10 Mo. App. 
 550; North Carolina v. Gosnell, 74 Fed. 734. 
 Whether a rock used for a missile was a 
 deadly weapon was held to be for the jury ; 
 State v. Shipley, 174 Mo. 512, 74 S. W. 012 ; 
 Tribble v. State, 145 Ala. 23, 40 South. 938; 
 hut in State v. Speaks, 94 N. C. 805, the ques- 
 tion was said to be one of law. An indict- 
 ment for assault with a deadly weapon, to 
 wit, a brick, sufficiently charges the use of 
 a deadly weapon ; State v. Sims, 80 Miss. 381, 
 31 South. 907. But it was held that whether 
 a brickbat is a deadly weapon is for the ju- 
 ry; State v. Harper, G9 Mo. 425. Pushing a 
 pin down the throat of an infant is a killing 
 with a deadly weapon ; State v. Norwood, 
 115 N. C. 789, 20 S. E. 712, 44 Am. St. Rep. 
 498. A stocking loaded with salt and plaster 
 which had been hardened by wetting, used 
 by a prisoner in assaulting his jailer while 
 attempting to escape, may be found by the 
 jury to be a deadly weapon; People v. Val- 
 liere, 123 Cal. 570, 50 Pac. 433. And one 
 may be found guilty of an assault with a 
 deadly weapon who has placed a tiu box 
 filled with gunpowder in the stove of the 
 prosecuting witness, where it exploded ; Peo- 
 ple v. Pape, 66 Cal. 366, 5 Pac. 621. See 
 Crow v. State, 55 Tex. Cr. R. 200, 116 S. W. 
 52, 21 Im R. A. (N. S.) 497. 
 
 A mere trespass on land does not justify 
 an assault with a deadly weapon; Moi 
 ery v. Coin., 98 Va. - 
 
 v. Lightsey, 43 S. C. 11 '. 20 S. E. 975; State 
 v. Zellers, 7 N. J. E. 220; ae threw 
 
 down a fence and drove over a wheal 
 011 account of snow drifts; State v. I 
 9 Iloust. .(Del.) 417, 33 Atl. 1M ; or where 
 one tore down and carried away a i 
 state v. Matthews, L48 Mo. 185, 49 
 1085, 71 Am. St Rep. 504; or went on an- 
 other's land to remove crops; Rauck v. State. 
 110 Ind. 384, 11 X. E. 450. Other 
 that if force be necessary, a deadly wi 
 may be used; People v. Flanagan, 60 CaL 2, 
 44 Am. Rep. 52; or if the owner has reason- 
 able ground for believing that he is in dan- 
 ger; People v. Dann, 53 Mich. 490, 19 X. W. 
 L59, 51 Am. Rep. 151. If the trespasser as- 
 sault him, he may be Justified in killing; 
 Ayers v. State, 60 Miss. 700; he may oppose 
 force with force; Wenzel v. State, 48 Tex. 
 Cr. R. 625, 90 S. W. 28; in the defence of his 
 house; People v. Coughlin, 07 Mich, h 
 N. W. 72; so if the killing is believed, in 
 good faith and upon reasonable grounds, to 
 be necessary in order to repel the assailant 
 or prevent his forcible entry ; State v. Pea- 
 cock, 40 Ohio St. 333. In ejecting a tres- 
 passer or preventing a trespass, a deadly 
 weapon is not justified unless the owner rea- 
 sonably believes that he is in danger of per- 
 sonal violence; State v. Howell, 21 Mont. 
 165, 53 Pac. 314; Sage v. Harpending, 49 
 Barb. (N. Y.) 1GG. In Pryse v. State, 54 
 Tex. Cr. R. 523, 113 S. W. 938, it was held 
 that a person may use all the force necessary 
 to protect his property, and if in danger of 
 death or serious injury he may kill. In Hig- 
 gins v. Minaghan, 78 Wis. 602, 47 N. W. 941. 
 11 L. R. A. 138, 23 Am. St. Rep. 428, it was 
 held that effectual means, by shootim: or 
 otherwise, was justifiable to drive away a 
 charivari party who were causing fright to 
 the owner's family and endangering their 
 lives. 
 
 DANGERS OF THE RIVER. In a bill of 
 lading this term means only the natural ac- 
 cidents incident to river navigation, and does 
 not embrace such as may be avoided by the 
 exercise of that skill, judgment, and fore- 
 sight which are demanded from persons in a 
 particular occupation. Hill v. Sturgeon, 35 
 Mo. 212, 86 Am. Dec. 149. See Hibernia Ens. 
 Co. v. Transp. Co., 17 Fed. 47s. 
 
 DANGERS OF THE SEA. See Perils of 
 
 run Ska. 
 
 DAPIFER. The name of the first offi- 
 cer of state in France until 1191, after which 
 it was never conferred. The name came to 
 England with the Normans, but the office 
 was less important, and there was a staff 
 of daplfers. After the accession of Richard 
 1. the style Seneschal began to take its place. 
 Harcourt, The Steward and Trial of Peers.
 
 DARREIN 
 
 756 
 
 DATE 
 
 DARREIN (Fr. dernier). Last. Darrein 
 continuance, last continuance. See Puis 
 Darrein Continuance; Continuance. 
 
 DARREIN PRESENTMENT. See Assize 
 of Darrein Presentment. 
 
 DARREIN SEISIN (L. Fr. last seisin). A 
 plea which lay in some cases for the tenant 
 in a writ of right. Hunt v. Hunt, 3 Mete. 
 (Mass.) 184; Jackson, Real Act. 285. See 1 
 Roscoe, Real Act. 20G ; 2 Prest. Abstr. 345. 
 
 DATE. The designation or indication in 
 an instrument of writing of the time and 
 place when and where it was made. 
 
 In the Anglo-Saxon land charters dates were given 
 by the year of the Indiction (q. v.). Dating by the 
 year of our Lord was invented in 532. At a coun- 
 cil in 816 it was adopted for the acts of the synod 
 and became general in documents from that date ; 
 2 Holdsw. Hist. E. L. 19. Some early charters 
 were not dated ; some referred to the regnal year, 
 or a church festival, or a remarkable event ; 3 
 id. 196. 
 
 When the place is mentioned in the date of a deed, 
 the law intends, unless the contrary appear, that it 
 was executed at the place of the date ; Plowd. 7 b. 
 The word is derived from the Latin datum (given) ; 
 because when the instruments were in Latin the 
 form ran datum, etc. (given the day of, etc.). 
 
 A date is necessary to the validity of a 
 policy of insurance ; but where there are 
 separate underwriters, each sets down the 
 date of his own signing, as this constitutes 
 a separate contract ; Marsh. Ins. 336 ; 2 Pars. 
 Marit. Law 27. Written instruments gener- 
 ally take effect from the day of their date, 
 but the actual date of execution may be 
 shown, though different from that which 
 the instrument bears; and it is said that 
 the date is not of the essence of a contract, 
 but is essential to the identity of the writ- 
 ing by which it is to be proved; 2 Greenl. 
 Ev. §§ 12, 489, n. ; Cloyes v. Sweetser, 4 Cush. 
 (Mass.) 403; Jackson v. McKenny, 3 Wend. 
 (N. Y.) 233, 20 Am. Dec. 690; Gammon v. 
 Freeman, 31 Me. 243; Bement v. Mfg. Co., 
 32 N. J. L. 513 ; McSparran v. Neeley, 91 Pa. 
 17; 17 E. L. & Eq. 548. See Knisely v. 
 Sampson, 100 111. 573; 19 L. J. Q. B. 435. 
 And if the written date is an impossible 
 one, the time of delivery must be shown; 
 Shepp. Touchst. 72; Cruise, Dig. c. 2, s. 61. 
 
 An indictment charging the commission of 
 a crime on an impossible date (in the year 
 18903) was held fatally defective; Terrell 
 v. State, 165 Ind. 443, 75 N. E. 884, 2 L. R. 
 A. (N. S.) 251, 112 Am. St. Rep. 244, 6 Ann. 
 Cas. 851; see also State v. Sexton, 10 N. C. 
 184, 14 Am. Dec. 584; State v. Litch, 33 Vt. 
 67; even when the mistaken date appears 
 to have been merely a clerical error; Robles 
 v. State, 5 Tex. App. 347 ; and one charging 
 the commission of an offense upon a date not 
 yet arrived was held to allege no offense as 
 having been already committed; Com. v. 
 Doyle, 110 Mass. 103. Where the date al- 
 leged for the commission of a statutory of- 
 fense occurred before the statute was enact- 
 ed, and even before the state became a mem- 
 
 ber of the Union, it was held an impossible 
 date ; State v. O'Donnell, 81 Me. 271, 17 AtL 
 06. See Indictment ; Time. 
 
 A date in a note or bill is required only 
 for the purpose of fixing the time of pay- 
 ment. If the time of payment is otherwise 
 indicated, no date is necessary ; 1 Ames, 
 Bills and Notes 145, citing Brewster v. Mc- 
 Cardell, 8 Wend. (N. T.) 47S ; Walker y. 
 Geisse, 4 Whart. (Pa.) 252, 33 Am. Dec. 60. 
 When a note payable at a fixed period after 
 date has no date, a holder may fill the date 
 with the day of issue; ibid. 
 
 It is usually presumed that a deed was de- 
 livered on the day of its date; but proof of 
 the date of delivery must be given if the cir- 
 cumstances were such that collusion might 
 be practised; Steph. Dig. Ev. 138; Raines 
 v. Walker, 77 Va. 92; Harman v. Oberdorfer, 
 33 Gratt. (Va.) 497; Saunders v. Blythe, 112 
 Mo. 1, 20 S. W. 319. See 6 Bing. 296 ; Ells- 
 worth v. R. Co., 34 N. J. L. 93 ; Cutts v. Mfg. 
 Co., 18 Me. 190. But this presumption does 
 not hold in respect to deeds in fee, unattest- 
 ed and unacknowledged ; Genter v. Morrison, 
 31 Barb. (N. Y.) 155. Parol evidence is ad- 
 missible to show that the date stated in the 
 in testimonium clause of a mortgage deed of 
 personal property is not its true date ; 
 Shaughnessey v. Lewis, 130 Mass. 355; Or- 
 cutt v. Moore, 134 Mass. 52, 45 Am. Rep. 278. 
 There is a presumption as to a note that it 
 was delivered on the day of its date; Cran- 
 son v. Goss, 107 Mass. 439, 9 Am. Rep. 45. 
 
 Where a date is given, both as a day of 
 the week and a day of the month, and the 
 two are inconsistent, the day of the month 
 governs; Minor v. Michie, Walker (Miss.) 
 27. 
 
 DATI0N. In Civil Law. The act of giv- 
 ing something. It differs from donation, 
 which is a gift; dation, on the contrary, is 
 giving something without any liberality; as, 
 the giving of an office. 
 
 DATION EN PAIEMENT. In Civil Law. 
 A giving by the debtor and receipt by the 
 creditor of something in payment of a debt 
 instead of a sum of money. 
 
 It is somewhat like the accord and satisfaction of 
 the common law. 16 Toullier, n. 45 ; Pothier, Vente, 
 n. 601. Dation en paiement resembles in some re- 
 spects the contract of sale ; dare in solutum est 
 quasi vendere. There is, however, a very marked 
 difference between a sale and a dation en paiement. 
 First. The contract of sale is complete by the mere 
 agreement of the parties ; the dation en paiement 
 requires a delivery of the thing given ; Donoven 
 & Daley v. Travers, 122 La. 458, 47 South. 769. Sec- 
 ond. When the debtor pays a certain sum which he 
 supposed he was owing, and he discovers he did not 
 owe so much, he may recover back the excess ; not 
 so when property other than money has been given 
 in payment. Third. He who has in good faith sold a 
 thing of which he believed himself to be the owner, 
 is not precisely required to transfer the property of 
 it to the buyer ; and while he is not troubled in 
 the possession of the thing, he cannot pretend that 
 the seller has not fulfilled his obligations. On the 
 contrary, the dation en paiement is good only when 
 the debtor transfers to the creditor the property in 
 the thing which he has agreed to take in payment;
 
 DATION EN PAIEMENT 
 
 757 
 
 DAY 
 
 and if the thing thus delivered be the property of 
 another, it will not operate as a payment. Pothier, 
 Vettte, nn. 602, 603, 604. See 1 Low. C. 53; Keough 
 v. J. Meyers & Co., 43 La. Ann. 952, 9 South. 913. 
 
 DATIVE. A word derived from the Ro- 
 man Law, signifying "appointed by public 
 
 authority." Thus, in Scotland, an e.\< 
 dative is an executor appointed by a court 
 of justice, corresponding to an English ad- 
 ministrator. Mozley >v W. Diet. 
 
 DAUGHTER. A female child; an im- 
 mediate female descendant. 
 
 DAUGHTER-IN-LAW. The wife of one's 
 son. 
 
 DAY. The space of time which elapses 
 while the earth makes a complete revolution 
 on its axis. 
 
 A portion of such space of time which, 
 by usage or law, has come to be considered 
 as the whole for some particular purpose. 
 
 The space of time which elapses between 
 two successive midnights. 2 Bla. Com. 141. 
 
 That portion of such space of time during 
 which the sun is shining. 
 
 Generally, in legal signification, the term included 
 the time elapsing from one midnight to the succeed- 
 ing one; 2 Bla. Com. 141; Kane v. Commonwealth, 
 89 Pa. 522, 33 Am. Rep. 787 ; see Helphenstine v. 
 Bank, C5 Ind. 589, 32 Am. Rep. 86 ; but it is also 
 used to denote those hours during which business is 
 ordinarily transacted (frequently called a business 
 day); Hinton v. Locke, 5 Hill (N. Y.) 437; as 
 well as that portion of time during which the sun 
 Is above the horizon (called, sometimes, a solar 
 day), and, in addition, that part of the morning or 
 evening during which sufficient of its light is above 
 for the features of a man to be reasonably discern- 
 ed ; Co. 3d Inst. 63 ; Trull v. Wilson, 9 Mass. 154. 
 Where a party is required to take action within 
 a given number of days in order to secure or assert 
 a right, the day Is to consist of twenty-four hours, 
 that is the popular and legal sense of the term j 
 Zimmerman v. Cowan, 107 111. 631, 47 Am. Rep. 476; 
 also in a marine insurance policy "for 30 days after 
 arrival" means thirty successive periods of twenty- 
 four hours each, "commencing as soon as moored 
 at anchor" ; [1904] 1 K. B. 40. 
 
 By custom, the word day may be under- 
 stood to include working days only; 3 Esp. 
 1121 ; Sorensen v. Keyser, ."32 Fed. 163, 2 C. O. 
 A. 650, Iu n similar manner only, a certain 
 number of hours less than the number during 
 which the work actually continued each day. 
 Hinton v. Locke, 5 Hill (N. Y.) 437. 
 
 Sundays and other public holidays falling within 
 the number of days specified by a statute for the 
 performance of an act, are often omitted from the 
 computation, as not being judicial days ; Abrahams 
 v. Comm., 1 Rob. (Va.) C76 ; Michie v. Miehie's 
 Adm'r, 17 Gratt. (Va.) 109; Neal v. Crew, 12 Ga. 
 93 ; National Bank of the Metropolis v. Williams, 
 46 Mo. 17 ; Caupfield v. Cook, 92 Mich. 626, 52 N. 
 W. 1031 ; McChesney v. People, 145 111. 614, 34 N. 
 E. 431; Danielson v. Fuel Co., 55 Fed. 49; Sorensen 
 v. Keyser, 52 Fed. 163, 2 C. C. A. 650. But see Miles 
 v. McDermott, 31 Cal. 271. Where the last day of the 
 six months within which an appeal or writ of error 
 may be taken to review in the circuit court of ap- 
 peals, the judgment or decree of a lower court, falls 
 on Sunday, the appeal cannot be taken or the writ 
 sued out on any subsequent day ; Johnson v. Mey- 
 ers, 54 Fed. 417, 4 C. C. A. 399. When the day of per- 
 formance of contracts, other than instruments upon 
 which days of grace are allowed, falls on Sunday, or 
 other public holiday, it is not counted, and the con- 
 
 tract may be performed on Monday ; Salter v. Burt, 
 20 Wend. (N. Y.) 205, 32 Am. Dec. 530; Stryker v. 
 Vanderbilt, 27 N. J. L. 68 ; Johnson v. Merritt, 50 
 Minn. 303, 52 N. W. 863. See Broome v. Wellington, 
 1 Sandf. (N. Y.) 664. 
 
 The time for completing commercial contracts is 
 not limited to banking hours ; Price v. Tucker, 5 
 La. Ann. 614. 
 
 A day is generally, but not always, re- 
 garded In law as a point of time; and 
 tions will not be recognized; 2 B. & Aid. 
 580; In re Welman, 20 \ I ■ No. 
 
 17,407; Seward v. Hayden, 150 M 
 2-J. N. B. 629, 5 L. EL A. Ml, 15 Am. St. Rep. 
 L83; State v. Winter Park, 25 Fla. 371, 5 
 South. S18. And see Brainard v. Bushnell, 
 n Conn. 17; 3 Op. Att. Gen. 82; Phelan 
 v. Douglass, 11 How. Pr. (N. Y.) 193; Duffy 
 v. Ogden, 04 Pa. 240. See Fraction of a 
 Day. 
 
 It is said that there Is no general rule in 
 regard to including or excluding days in the 
 computation of time from the day of a fact or 
 act done, but that it depends upon the i ■■ 
 of the thing and the circumstances of the 
 case; 9 Q. B. 141; M. & \v. :,:>; Presbrey v. 
 Williams, 15 Mass. 193; Weeks v. Hull. 19 
 Conn. 376, 50 Am. Dec. 249; Taylor v. Brown, 
 5 Dak. 335, 40 N. W. 525. And see, also. 5 Co. 
 la; Dougl. 463; 4 Nev. & M. 378; Atkins v. 
 Ins. Co., 5 Mete. (Mass.) Ki9, 39 Am. Dec. 692 : 
 Wilcox v. Wood, 9 Wend. (N. Y.) 346; Blake 
 v. Crowninshield, 9 N. H. 304 ; Ewing v. 
 Bailey, i Scam. (111.) 420; Marys v. Anderson, 
 U4 Pa. 272; State v. Water Co., 5G N. J. L. 
 422, 28 Atl. 57S. Perhaps the most general 
 rule is to exclude the first day ami Include 
 the last; Weld v. Barker, 153 Pa. 465, 26 
 Atl. 239; Miner v. Tilley, 54 Mo. App. 627; 
 Seward v. Hayden, 150 Mass. 159, 22 N. E. 
 629, 5 L. R. A. S44, 15 Am. St. Rep. 183 ; 12 
 A. & E. 635; Blackman v. Nearing, 43 Conn. 
 56, 21 Am. Rep. 634; Warren v. Slade. 23 
 Mich. 1, 9 Am. Rep. 70. Such is the rule as 
 to negotiable paper; 1 Dan. Neg. Instr. 496; 
 Mark's Ex'rs v. Russell, 40 Pa. 372. See, 
 generally, '1 Sharsw. Bla. Com. 141, n. ; and 
 so in the Uniform Negotiable Instruments 
 Act, •§ SO. 
 
 The rule now generally followed seems to be that 
 not only in mercantile contracts, but also In wills 
 and other instruments, and in the construction of 
 statutes, the day of the date, or the day of the act 
 from which a future time is to be ascertained. Is to 
 be excluded ; Weeks v. Hull, 19 Conn. 376, 50 Am. 
 Dec. 249; People v. R. Co.. 2S Barb. (N. Y.) 284; 
 Hahn v. Dlerkes, 37 Mo. 574 ; Faure v. Exp. Co., 
 23 Ind. 48. 
 
 A statutory rule for computing time does 
 not apply to ascertain the day, or the last 
 day, on which a tiling may be done, where 
 such day is expressed by its date; North- 
 western Guaranty Loan Co. v. Channel I. 53 
 Minn. 209, 55 N. W. 121. 
 
 See Time. 
 
 DAY BOOK. An account-book in which 
 merchants and others make entries of their 
 daily transactions. This is generally a book 
 of original entries, and, as such, may be giv-
 
 DAY BOOK 
 
 758 
 
 DAYS OF GRACE 
 
 en in evidence to prove the sale and delivery 
 of merchandise or of work done. 
 
 DAY RULE. In English Practice. A rule 
 or order of the court by which a prisoner on 
 civil process, and not committed, is enabled, 
 in term-time, to go out of the prison and its 
 rule or bounds. Tidd. Pr. 9G1. Abolished by 
 5 & 6 Vict. c. 22. 
 
 DAYS IN BANK. In English Practice. 
 
 Days of appearance in the court of common 
 pleas, usually called bancuni. They are at 
 the distance of about a week from each oth- 
 er, and are regulated by some festival of the 
 church. 
 
 By the common law, the defendant Is allowed 
 three full days in which to make his appearance in 
 court, exclusive of the day of appearance or return- 
 day named in the writ ; 3 Bla. Com. 278. Upon his 
 appearance, time is usually granted him for plead- 
 ing ; and this is called giving him day, or, as it is 
 more familiarly expressed, a continuance. 3 Bla. 
 Com. 316. When the suit is ended by discontinu- 
 ance or by judgment for the defendant, he is dis- 
 charged from further .attendance, and is said to go 
 thereof sine die, without day. See Continuance. 
 
 DAYS OF GRACE. Certain days allowed 
 to the acceptor of a bill or the maker of a 
 note in which to make payment, in addition 
 to the time contracted for by the bill or note 
 itself. 
 
 They are so called because formerly they 
 were allowed as a matter of favor ; but the 
 custom of merchants to allow such days of 
 grace having grown into law, and been sanc- 
 tioned by the courts, all bills of exchange are 
 by the law merchant entitled to days of grace 
 as of right. The statute of Anne making 
 promissory notes negotiable confers the same 
 right on those instruments. This act has 
 been generally adopted throughout the Unit- 
 ed States; and the days of grace allowed 
 are three ; Thomas v. Shoemaker, 6 W. & S. 
 (Pa.) 179; Chitty, Bills; Byles, Bills. 
 
 The Uniform Negotiable Instruments Act 
 passed in most of the states abolishes days 
 of grace, but three days of grace are allowed 
 on sight drafts in the Rhode Island Act, and 
 on notes, acceptances, and sight drafts in the 
 North Carolina act; the Massachusetts act 
 was amended so as to allow days of grace on 
 sight drafts; also by the English Bills of 
 Exchange Act (1882); Selover, Negot. Instr. 
 253. The following cases are retained as 
 having at least historical interest: 
 
 Bank checks are due on presentation and 
 are not entitled to days of grace ; Wood 
 River Bank v. Bank, 36 Neb. 744, 55 N. W. 
 239. 
 
 The principle deducible from all the au- 
 thorities is, that, as to every bill not payable 
 on demand, the day on which payment is to 
 be made to prevent dishonor is to be deter- 
 mined by adding three days of grace, where 
 the bill itself does not otherwise provide, to 
 the time of payment as fixed by the bill. 
 This principle is formulated into a statutory 
 provision in England in the Bills of Ex- 
 
 change Act, 1SS2, 45 & 46 Vict. c. 61, § 14; 
 Bell v. Bank, 115 U. S. 383, 6 Sup. Ct. 105, 
 29 L. Ed. 409; President, etc., of Bank of 
 Washington v. Triplett, 1 Pet. (U. S.) 31, 7 
 L. Ed. 37. 
 
 Where there is an established usage of the 
 place where the bill is payable to demand 
 payment on the fourth or other day instead 
 of the third, the parties to it will be bound 
 by such usage ; Renner v. President, etc., of 
 Bank, 9 Wheat. (U. S.) 5S2, 6 L. Ed. 166; 
 Price v. Earl of Torrington, 1 Smith, Lead. 
 Cas. 417. When the last day of grace hap- 
 pens on Sunday or a general holiday, as the 
 Fourth of July, Christmas day, etc., the bill 
 is due on the day previous, and must be pre- 
 sented on that day in order to hold the draw- 
 er and indorsers; Big. Bills & N. 90; Me- 
 chanics' & Farmers' Bank v. Gibson, 7 Wend. 
 (N. Y.) 460; Bank of North America v. Pet- 
 tit, 4 Dall. (U. S.) 127, 1 L. Ed. 770; Fisher 
 v. Evans, 5 Binn. (Pa.) 541 ; Brown v. Lusk, 
 4 Yerg. (Tenn.) 210; McRae v. Kennon, 1 
 Ala. 295, 34 Am. Dec. 777 ; Leavitt v. Simes, 
 3 N. H. 14 ; contra, First Nat. Bank of Hast- 
 ings v. McAllister, 33 Neb. 646, 50 N. W. 
 1040; unless changed by statute as in some 
 states.. Days of graci. are, for all practical 
 purposes, a part of the time the bill has to 
 run, and interest is charged on them ; Presi- 
 dent, etc., of the Bank of Utica v. Wager, 
 2 Cow. (N. Y.) 712; 1 Dan. Neg. Instr. 489. 
 According to the usage and custom of mer- 
 chants to fix the liability of the indorser of 
 negotiable paper, it should be protested on 
 the last day of grace ; Carey Lombard Lum- 
 ber Co. v. Bank, 86 Tex. 299, 24 S. W. 260. 
 
 In computing the days of' grace allowed 
 in a bond for the payment of interest, the 
 day when the interest became payable will 
 not be counted ; Serrell v. Rothstein, 49 N. J. 
 Eq. 385, 24 Atl. 369. A bill payable in thirty 
 days having been drawn and accepted on 
 February 11th, of a leap year, the last day 
 of grace falls on March 15th, the 29th of 
 February being counted as a distinct day; 
 Helphenstine v. Bank, 65 Ind. 582, 32 Am. 
 Rep. 86. 
 
 Our courts always assume that the same 
 number of days are allowed in other coun- 
 tries; and a person claiming the benefit of 
 a foreign law or usage must prove it ; Bowen 
 v. Newell, 13 N. Y. 290, 64 Am. Dec. 550; 
 Ripley v. Greenleaf, 2 Vt. 129; President, 
 etc., of the Farmers' Bank of Maryland v. 
 Duvall, 7 Gill & J. (Md.) 78; President, etc., 
 of the Bank of Alexandria v. Swann, 9 Pet. 
 (U. S.) 33, 9 L. Ed. 40 ; Wood v. Corl, 4 Mete. 
 (Mass.) 203. When properly proved, the law 
 of the place where the bill or note is payable 
 prescribes the number of days of grace and 
 the manner of calculating them; Dollfus v. 
 Frosch, 1 Denio (N. Y.) 367 ; Story, Pr. Notes 
 §§ 216, 247. The tendency to adopt as laws 
 local usages or customs has been materially 
 checked ; Bowen v. Newell, 8 N. Y. 190.
 
 DAYS OF THE WEEK 
 
 759 
 
 DE A POST .VI \I>< l 
 
 DAYS OF THE WEEK. The courts will 
 always take judicial notice of the days of 
 the week ; for example, when a writ of in- 
 quiry was stated in the pleadings to have 
 been executed on the fifteenth of June, and 
 upon an examination it was found to be 
 Sunday, the proceeding was held to be de- 
 fective; Fortesc. 373; Stra. 3S7. 
 
 DAYSMAN. An arbitrator, umpire, or 
 elected judge. Cowell. 
 
 DAYWERE. As much arable land as 
 could be ploughed in one day's work. Cowell. 
 
 DE ADMENSURATIONE or AMENSURA- 
 CIONE, in Maitland (2 SeL Essays in Anglo- 
 Amer. L. H. 585). Of admeasurement. 
 
 Used of the writ of admeasurement of dower, 
 which lies where the widow has had more dower 
 assigned to her than she is entitled to. It is said by 
 some to lie where either an infant heir or his 
 guardian made such assignment at suit of the in- 
 fant heir whose rights are thus prejudiced. 2 Bla. 
 Com. 136 ; Fitzh. N. B. 348. It si i I < r, that 
 
 an assignment by a guardian binds the infant heir, 
 and that after such assignment the heir cannot have 
 his writ of admeasurement; Boyers v. Newbanks, 
 2 Ind. 388; Jones v. Brewer, 1 Pick. (Mass.) 314; 
 Young v. Tarbell, 37 Me. 509 ; 1 Washb. R. P. 226. 
 
 Used also of the writ of admeasurement of pas- 
 ture, which lies where the quantity of common due 
 each one of several having rights thereto, has not 
 been ascertained. 3 Bla. Com. 38. See Admeasure- 
 ment op Dower. 
 
 DE /ETATE PROBANDA (Lat. for proving 
 age). A writ which lay to summon a jury 
 for the purpose of determining the age of 
 the heir of a tenant In capite who claimed his 
 estate as being of full age. Fitzh. N. B. 257. 
 
 DE ALLOCATIONE FACIENDA (Lat. for 
 making an allowance). A writ to allow the 
 collectors of customs, and other such olticers 
 having charge of the king's money, for sums 
 disbursed by them. 
 
 It was directed to the treasurer and barons 
 of the exchequer. 
 
 DE ALTO ET BASSO (Of high and low). 
 A phrase anciently used to denote the abso- 
 lute submission of all differences to arbitra- 
 tion. Cowell. 
 
 DE ANNUA PENSIONE (Lat. of annual 
 pension). A writ by which the king, having 
 due unto him an annual pension from any 
 abbot or prior for any of his chaplains which 
 he will name who is not provided with a 
 competent living, demands it of the said ab- 
 bot or prior for the one that is named in the 
 writ. Fitzh. X. B. 231; Termes de la Ley, 
 Annua Pensione. 
 
 DE ANNUO REDITU (Lat. for a yearly 
 rent). A writ to recover an annuity, no mat- 
 ter how payable. 2 Reeve, Hist. Eng. Lav 
 258. 
 
 DE APOSTATA CAPIENDO (Lat for tak- 
 ing an apostate). A writ directed to the sher- 
 iff for the taking the body of one who, hav- 
 ing entered into and professed some order of 
 religion, leaves his order and departs from 
 his house and wanders in the country. Fitzh. 
 
 N. B. 233; Termes de la Ley, Apostata Ca- 
 piendo. 
 
 DE ARBITRATIONE FACTA (Lat. of arbi- 
 tration had;. A writ formerly used wl. 
 action was brought for a cause which had 
 been settled by arbitration. Watson, Axb. 
 256. 
 
 DE ASSISA PROROGANDA (Lat. for pro- 
 roguing assize). A writ to put off an a 
 Issuing to the justices where one of the par- 
 ties is engaged in the service of the king. 
 
 DE ATTORNATO RECIPIENDO Hat. for 
 receiving an attorney). A writ to compel the 
 judges to receive an attorney and admit him 
 Cor the party. Fitzh. N. B. 156 b. Some- 
 times de attornato faciendoj see Maitland, 
 '2 Sel. Essays in Anglo-Amer. L. H. 576. 
 
 DE AVERIIS CAPTIS IN WITHERNAM 
 
 (Lat. for cattle taken in withernam). A writ 
 which lies to take other cattle of the de- 
 fendant where he has taken and carried 
 away cattle of the plaintiff out of the coun- 
 try, so that they cannot be reached by re- 
 plevin. Termes de la Ley; 3 Bla. Com. 149. 
 
 DE AVERIIS REPLEGIANDIS (Lat). A 
 writ to replevy beasts. 3 Bla. Com. 149. 
 
 DE AVERIIS RETORNANDIS (Lat. for 
 returning cattle). Used of the pledges in the 
 old action of replevin. 2 Reeve, Hist. Eng. 
 Law 177. 
 
 DE BENE ESSE (Lat. formally; condition- 
 ally; provisionally). A technical phrase ap- 
 plied to certain acts deemed for the time to 
 be well done, or until an exception or other 
 avoidance. It is equivalent to provisionally, 
 with which meaning the phrase is commonly 
 employed. For example, a declaration is fil- 
 ed or delivered, special bail is put in, a wit- 
 ness is examined, etc., de bene esse, or pro- 
 visionally ; 3 Bla. Com. 3S3. 
 
 The examination of a witness dc bene esse 
 takes place where there is danger of losing 
 the testimony of an important witness from 
 death by reason of age or dangerous illness, 
 or where he is the only witness to an im- 
 portant fact; Lingan v. Henderson, l Bland, 
 Ch. (Md.) 238; Ails v. Sublit. ;: Bibb iKy.i 
 204; Clark v. Dibble. 16 Wend. (N. Y.i 601; 
 13 Ves. 261; May's lieirs v. May's Adin'r. 28 
 Ala. 141. In such case, if the witness be 
 alive at the time of trial, his examination is 
 not to be used ; 2 Dan Ch. l'r. 1111. 
 llaynes, Eq. 183; Mitt'. Eq. PL 52, 1 19. 
 
 To declare dc bene esse is to declare in a 
 bailable action subjeel to the contingency 
 of bail being put in: and in such case the 
 declaration does not become absolute till this 
 is done; Grah. I'r. 191. 
 
 When a judge has a doubt as to the pro- 
 priety of finding a verdict, he may 6 
 the jury to find one de betfc which 
 
 verdict, if the court shall afterwards be of 
 opinion that it ought to have been found.
 
 DE BENE ESSE 
 
 760 
 
 DE CARTIS REDDENDIS 
 
 shall stand. Bac. Abr. Verdict (A). See, al- 
 so, Blair v. Weaver, 11 S. & R. (Pa.) 84. 
 
 DE BIEN ET DE MAL. See De Bono et 
 Malo. 
 
 DE BIENS LE MORT (Fr.). Of the goods 
 of the deceased. Dyer 32. 
 
 DE BONIS ASPORTATIS (Eat. for goods 
 tarried away). The name of the action for 
 trespass to personal property is trespass dc 
 bonis asportatis. Bull. N. P. 836; 1 Tidd, 
 Pr. 5. 
 
 DE BONIS NON. See Executors and Ad- 
 min tSTRATORS. 
 
 DE BONIS PROPRIIS (Lat of his own 
 goods). A judgment against an executor or 
 administrator which is to be satisfied from 
 ■ his own property. 
 
 When an executor or administrator has 
 been guilty of a devastavit, he is responsible 
 for the loss which the estate has sustained 
 de bonis propriis. He may also subject him- 
 self to the payment of a debt of the deceased 
 de bonis propriis by his false plea when sued 
 in a representative capacity; as, if he plead 
 plene administravit and it be found against 
 him, or a release to himself when false. In 
 this latter case the judgment is de bonis tes- 
 ta toris si, et si non, de bonis propriis. 1 
 Wms. Saund. 336 6, n. 10 ; Bacon, Abr. Exec- 
 utor (B, 3). 
 
 DE BONIS TESTATORIS (Lat. of the 
 goods of the testator). A judgment rendered 
 against an executor which is to be satisfied 
 out of the goods or property of the testator ; 
 distinguished from a judgment de bonis pro- 
 priis. 
 
 DE BONIS TESTATORIS AC SI (Lat. 
 from the goods of the testator, if he has any, 
 and, if not, from those of the executor). A 
 judgment rendered where an executor falsely 
 pleads any matter as a release, or, generally, 
 in any case where he is to be charged in case 
 his testators estate is insufficient. 1 Wms. 
 Saund. 366 b; Bacon, Abr. Executor (B, 3) ; 
 2 Archb. Pr. 148. 
 
 DE BONO ET MALO (Lat. for good or ill). 
 A writ which apparently allowed a person 
 to be delivered from gaol if he were willing 
 to put himself upon a jury. The French 
 phrase de Men et de mal has the same mean- 
 ing. 
 
 A special writ of gaol delivery, one being 
 issued for each prisoner: now superseded by 
 the general commission of gaol delivery- 4 
 Bla. Com. 270. 
 
 DE CALCETO REPARANDO (Lat.). A 
 writ for repairing a highway, directed to the 
 sheriff, commanding him to distrain the in- 
 habitants of a place to repair the highway. 
 Reg. Orig. 154; Blount. 
 
 DE CARTIS REDDENDIS (Lat. for restor- 
 ing charters). A writ to secure the delivery 1 
 
 of charters; a writ of detinue. Reg. Orig. 
 159 b. 
 
 DE CATALLIS REDDENDIS (Lat. for re- 
 storing chattels). A writ to secure the re- 
 turn specifically of chattels detained from 
 the owner. Cowell. 
 
 DE CAUTIONE ADMITTENDA (Lat. for 
 admitting bail). A writ directed to a bishop 
 who refused to allow a prisoner to go at 
 large on giving sufficient bail, requiring him 
 to admit him to bail. Fitzh. N. B. Uo c. It 
 seems to have been applicable only to secure 
 the release of a person who had been taken 
 on a writ of de excommunicato capiendo (q. 
 v.) and who was willing to purge himself of 
 contumacy. 
 
 DE CERTIFICANDO. A writ requiring a 
 thing to be certified. A kind of certiorari. 
 Reg. Orig. 152. 
 
 DE COMMUNI DIVIDENDO. In Civil 
 Law. A writ of partition of common prop- 
 erty. See Communi Dividendo. 
 
 DE C0MPUT0. Writ of account. A writ 
 commanding a defendant to render a reason- 
 able account to the plaintiff, or show cause 
 to the contrary. The foundation of the mod- 
 ern action of account. Blount; Registr. Br. 
 135. 
 
 DE CONTUMACE CAPIENDO. A writ 
 issuing from the English court of chancery 
 for the arrest of a defendant who is in con- 
 tempt of the ecclesiastical court. 1 N. & P. 
 685; 5 Dowl. 213, 646; 5 Q. B. 335. 
 
 DE CURIA CLAUDENDA (Lat. of enclos- 
 ing a court). An obsolete writ, to require a 
 defendant to fence in his court or land about 
 his house, where it was left open to the in- 
 jury of his neighbor's freehold. 1 Crabb, 
 R. P. 314 ; Rust v. Low, 6 Mass. 90. 
 
 DE CURSU. See Cursitor. 
 
 DE D0M0 REPARANDA (Lat). The 
 name of an ancient common-law writ, by 
 which one tenant in common might compel 
 his co-tenant to concur in the expense of re- 
 pairing the property held in common. 8 B. 
 & C. 269; 1 Thomas, Co. Litt. 216, note 17, 
 and p. 787. 
 
 DE DONIS, THE STATUTE (more fully, 
 De Donis Conditionalibus; concerning condi- 
 tional gifts). The statute of Westminster 
 the Second. 13 Edw. 1 c. 1. 
 
 The object of the statute was to prevent 
 the alienation of estates by those who held 
 only a partial interest in the estate in such 
 a manner as to defeat the estate of those 
 who were to take subsequently. This was 
 effected by providing that, in grants to a 
 man and the heirs of his body or the heirs 
 male of his body, the will of the donor 
 should be observed according to the form 
 expressed in the deed of gift (per form am 
 doni); that the tenements so given should 
 go, after the grantee's death, to his issue (or 

 
 DE DONIS, THE STATUTE 
 
 761 
 
 DE FACTO 
 
 Issue male), if there were any, and if none, 
 should revert to the donor. This statute was 
 the origin of the estate in fee tail, or estate 
 tail, and by introducing perpetuities, it built 
 up great estates and strengthened the power 
 of the barons. See Bac. Abr. Estates Tail; 
 1 Cruise, Dig. 70; 1 Washb. R. P. 271. Bee 
 irnoNAL Feb Taix,. 
 
 DE DOTE ASSIGNANDA (Lat for assign- 
 ing dower). A writ commanding the king's 
 eseheator to assign dower to the widow of a 
 tenant in capite. Fltzh. X. I'.. 263, C. 
 
 DE DOTE UNDE NIHIL HABET (Lat. of 
 dower in that whereof she has none). A 
 writ of dower which lay for a widow where 
 no part of her dower had I icon assigned to a 
 widow. It is now much disused; but a form 
 closely resembling it is still' used in the 
 United States. 4 Kent G3; Stearns, Real 
 Act. 302 ; 1 Washb. R. P. 230. 
 
 DE EJECTIONE CUSTODI/E. A writ 
 which lay for a guardian who had been forci- 
 bly ejected from his wardship. Reg. Orig. 
 L62; lilack, L. Diet. 
 
 DE EJECTIONE FIRM/E. A writ which 
 lay at the suit of the tenant for years 
 against the lessor, reversioner, remainder- 
 man, or stranger who had himself deprived 
 the tenant of the occupation of the land 
 during his term. 3 Bla. Com. 199. Original- 
 ly lying to recover damages only, it came to 
 be used to recover the rest of the term, and 
 then generally the possession of lands. In- 
 volving, in the question of who should have 
 possession, the further question of who had 
 the title, it gave rise to the modern action 
 of ejectment. Brooke, Abr. ; Adams, Ejectm. ; 
 3 Bla. Com. 199 et seq. 
 
 DE ESTOVERIIS HABENDIS (Lat. to ob- 
 tain estovers). A writ which lay for a wo- 
 man divorced a mensa et thoro to recover 
 her alimony or estovers. 1 Bla. Com. 441. 
 
 DE EXCOMMUNICATO CAPIENDO (Lat. 
 
 for taking one who is excommunicated). A 
 writ commanding the sheriff to arrest one 
 who was excommunicated, and imprison him 
 till he should become reconciled to the 
 church. 3 Bla. Com. 102. 
 
 DE EXCOMMUNICATO DELIBERANDO 
 
 (Lat. for freeing one excommunicated). A 
 writ to deliver an excommunicated person, 
 who has made satisfaction to the church, 
 from prison. 3 Bla. Com. 102. 
 
 DE EX0NERATI0NE SECT/E. A writ 
 to free the king's ward from suit in any 
 court lower than the court of common pleas 
 during the time of such wardship. 
 
 DE FACTO. Actually; in fact; in deed. 
 A term used to denote a thing actually done. 
 
 An officer dc facto is one who performs 
 the duties of an office with apparent right. 
 and under claim and color of an appoint- 
 
 ment, but without being actually qualified 
 in law so to act. Brown v. Lunt, "7 Me !2 •"•. 
 
 One who has the reputation of being the 
 oflicer he assumes to be, and yet is not a 
 good oflicer in point of law. 6 
 where Lord Ellenborough and a full court 
 of K. B. adopted this definition of Lord 1 1 • • 1 1 
 in 1 Raym. 658, which it is said 
 been questioned since in England," per But- 
 ler, C. J., in the loading CI 
 roll, 38 Conn. 449, U Am. Rep. 409, where the 
 common-law learning on the subject is col- 
 lected. 
 
 Where there is an oiiice to be filled, and 
 ting under color of authority tills the 
 office and discharges its duties, his actions 
 are those of an officer dc facto, and are bind- 
 ing on the public; McDowell v. U. S., 159 U. 
 , 16 Sup. Ct. Ill, 40 L. Ed. 271, 
 
 An oflicer in the actual exercise of execu- 
 tive power would be an oflicer de facto, and 
 as such distinguished from one who, being 
 legally entitled to such power, is deprived 
 of it, — such a one being an officer de jure 
 only. An oflicer holding without strict 
 authority; 2 Kent 295. 
 
 An oflicer dc facto is frequently consider- 
 ed an ollicer dc jure, and legal validity al- 
 lowed his official acts; State v. Anderson, 1 
 N. J. L. 318, 1 Am. Dec. 207 ; Com. v. Fowler, 
 10 Mass. 290; Laver v. McGhvhlin, 28 Wis. 
 3G4; Conover v. Devlin, 24 Barb. (X. Y.) 
 5S7; Whiting v. City of Ellsworth. 85 Me. 
 301, 27 Atl. 177 ; Petition of Town of Ports- 
 mouth, 19 N. H. 115; Burton v. Patton, 47 
 N. C. 124, 62 Am. Dec. 194; Gregg Tp. v. 
 Jamison, 55 Pa. 4GS; Kimball v. Alcorn, 45 
 Miss. 151 ; Hussey v. Smith, 99 P. S. 20, 25 
 L. Ed. 311; Teople v. Weber, SO 111. 283; 
 State v. Carroll, 38 Conn. 449, 9 Am. Rep. 
 409; State v. Davis, 111 X. C. 729, 16 S. E. 
 540; State v. Lee, 35 S. C. 192, 14 S. E. 395; 
 Zabel v. Harshman, 68 Mich. 273, 42 X. W. 
 44; 7 L. R. II. L. 894. But this is so only 
 so far as the rights of the public and third 
 persons are concerned. In order to sue or 
 defend in his own right as a public officer, 
 he must be so dc jure; People v. We! 
 111. 347. An oflicer de facto incurs no liabil- 
 ity by his mere omission to act; Oimstead v. 
 Dennis, 77 N. Y. 37S; Snyder v. S 
 Bow. Pr. (X. Y.) 404; but see Thayer v. 
 Printing Co., 108 Mass. 523; Providence 
 Steam-Engine Co. v. Hubbard, 101 U. S. 192, 
 25 L. Ed. 786. 
 
 An officer dc facto must be submitted to as 
 such until displaced by a regular direct pro- 
 ceeding for that pi! ; parte V 
 02 Ala. 471 : 4 East .".27; Buncombe Turnpike 
 Co. v. Mot 'arson, IS X. O. 306; he is a legal 
 officer until ousted; Board of Auditors of 
 Wayne County v. Benoit, 20 Mich. 170, 4 
 Am. Rep. 
 
 An officer acting under an unconstitution- 
 al law, acts by color of title, and is an offi- 
 cer de facto; Com. v. McCombs, 56 Pa. 436;
 
 DE FACTO 
 
 762 
 
 DE FACTO 
 
 Watson v. McGrath, 111 La. 1097, 3G South. 
 204; State v. Gardner, 54 Ohio St. 31, 42 
 N. E. 999, 31 L. R. A. 600 ; Lang v. City of 
 Bayonne, 74 N. J. L. 455, 68 Atl. 90, 15 L. 
 R. A. (N. S.) 93, 122 Am. St. Rep. 391, 12 
 Ann. Cas. 961 ; State v. Toulin, 105 Me. 224, 
 74 Atl. 119, 24 L. R. A. (N. S.) 408, 134 Am. 
 St. Rep. 543; State v. Carroll, 38 Conn. 449, 
 9 Am. Rep. 409 ; Donough v. Dewey, 82 Mich. 
 309, 46 N. W. 782 ; Cocke v. Halsey, 16 Pet. 
 (U. S.) 71, 10 L. Ed. 891, where the office 
 was an existing one ; contra, Norton v. Shelby 
 County, 118 U. S. 425, 6 Sup. Ct. 1121, 30 L. 
 Ed. 178, where the office was created by the 
 same act. The discussion of this point lias in 
 almost every case included the consideration 
 of what may be assumed to be a rule, when 
 properly understood, that there cannot be a 
 de facto officer without a de jure office ; Dill. 
 Mun. Corp. § 276. In one case it was said 
 that a de facto office cannot exist under a 
 constitutional government; Hawver v. Sel- 
 denridge, 2 W. Va. 274, 94 Am. Dec. 532; 
 and speaking through Mr. Justice Field in 
 the much discussed case of Norton v. Shelby 
 County, above cited from 118 L T . S. 425, 6 
 Sup. Ct. 1121, 30 L. Ed. 178, the court held 
 that acts done by officers appointed under an 
 unconstitutional statute befote it was de- 
 clared unconstitutional were void. In an L. 
 R. A. note to the New Jersey case above 
 cited, which may be referred to for a col- 
 lection of cases, it is assumed that the doc- 
 trine of the Supreme Court case is supported 
 by a "decided preponderance of authority." 
 The cases cited in the note, however, while 
 making a strong showing for a rule that 
 there must be a de jure office, seem to estab- 
 lish an overwhelming weight of authority in 
 support of the doctrine above stated, that 
 until the act is declared unconstitutional 
 there is a de jure office and therefore a de 
 facto officer whose acts are to be considered 
 valid. The opinions in the Connecticut, New 
 Jersey and Maine cases, the last two of 
 which take direct issue with Mr. Justice 
 Field, and the first of which was decided be- 
 fore it, seem to leave no logical support for 
 his opinion. 
 
 When a special judge is duly elected, qual- 
 ifies, and takes possession of the office ac- 
 cording to law, he becomes judge de facto, 
 though his official oath is not filed as re- 
 quired by law; and the proceedings of the 
 court, if unchallenged during his incumben- 
 cy, cannot afterwards be questioned collat- 
 erally; State v. Miller, 111 Mo. 542, 20 S. 
 W. 243. See In re Powers' Estate, 65 Vt. 
 399, 26 Atl. 640 ; Keith v. State, 49 Ark. 439, 
 5 S. W. 880; Campbell v. Com., 96 Pa. 344; 
 People v. Weber, S6 111. 283. 
 
 A notary who continues to act after his 
 commission has expired, long enough to af- 
 ford a reasonable presumption of reappoint- 
 ment, is a de facto notary; Cary v. State, 
 76 Ala. 78; and so of one who has failed to 
 file his bond; Keeney v. Leas, 14 la. 464; 
 
 and of an alien appointed a notary; Wilson 
 v. Kimmel, 109 Mo. 260, 19 S. W. 24. But 
 where a notary's commission had expired 
 seven months before he took an acknowl- 
 edgment, and it did not appear that he had 
 continued to act and hold himself out as a 
 notary, he was not a de facto notary; Sand- 
 lin v. Dowdell, 143 Ala. 518, 39 South. 279, 
 5 Ann. Cas. 459. 
 
 There can be no de facto officer in the case 
 of an office abolished by statute; Stenson v. 
 Koch, 152 N. Y. 89, 46 N. E. 176; People v. 
 Welsh, 225 111. 364, 80 N. E. 313 ; Walker v. 
 Ins. Co., 62 Mo. App. 223; Gorman v. Peo- 
 ple, 17 Colo. 596, 31 Pac. 335, 31 Am. St. Rep. 
 350; Farrier v. Dugan, 48 N. J. L. 613, 7 
 Atl. 881, affirming Dugan v. Farrier, 47 N. 
 J. L. 383, 1 Atl. 751; but there are cases 
 contra, which, however, appear to' be all 
 cases of municipal officers; Adams v. Lin- 
 dell, 5 Mo. App. 197; Hilgert v. Pav. Co., 
 107 Mo. App. 385, 81 S. W. 496; Keeling 
 v. R. Co., 205 Pa. 31; 54 Atl. 485; Per- 
 kins v. Fielding, 119 Mo. 149, 24 S. W. 
 444, 27 S. W. 1100. 
 
 An injunction does not lie to restrain a de 
 facto officer from performing the duties of 
 his office, on account of irregularity of elec- 
 tion, his acts being valid as to third persons ; 
 Chambers v. Adair, 110 Ky. 942, 62 S. W. 
 1128; but a mandamus may be directed to 
 one, to compel him to perform the duties of 
 his office, and he cannot set up in defense 
 that he is not in possession of his office de 
 jure; Kelly v. Wimberly, 61 Miss. 548 ; Har- 
 vey v. Philbrick, 49 N. J. L. 374, 8 Atl. 122. 
 Where the defects in the title of the officer 
 are notorious, such as to make those relying 
 on his acts chargeable with such knowledge, 
 persons relying upon such acts will not be 
 protected; oiiver v. Jersey City, 63 N. J. L. 
 634, 44 Atl. 709, 48 L. R. A. 412, 76 Am. St. 
 Rep. 228. Officers of a corporation cease to 
 be officers de facto after a judgment of a 
 court of last resort adjudging that they have 
 no rightful title (notwithstanding an appeal 
 pending to the supreme court of the United 
 States and no judgment of ouster appearing 
 of record) ; Rochester & G. V. R. Co. v. 
 Bank, 60 Barb. (N. Y.) 234. 
 
 Contracts and other acts of de facto di- 
 rectors of corporations are valid; Green's 
 ~Brice, Ultra Vires, 522, n. c. ; Atlantic, T. & 
 O. R. Co. v. Johnston, 70 N. C. 348; Ohio & 
 M. R. Co. v. McPherson, 35 Mo. 13, 86 Am. 
 Dec. 128 ; Delaware & H. Canal Co. v. Coal 
 Co., 21 Pa. 131. 
 
 An officer de facto is prima facie one de 
 jure; Allen v. State, 21 Ga. 217, 68 Am. Dec. 
 457. 
 
 When the inspectors of an election fail 
 to issue a certificate of election, one who 
 has received the highest number of legal 
 votes cast, and holding over as the present 
 incumbent, has sufficient apparent authority 
 or color of title to be considered an officer
 
 DE FACTO 
 
 7G3 
 
 DE PACTO 
 
 de facto; Montgomery v. O'Doll, G7 Hun 1G9, 
 22 N. Y. Supp. 412. 
 
 A government dc facto signifies one coni- 
 pletely, though only temporarily, established 
 in tlie place of the lawful government; 
 Thomas v. Taylor, 42 Miss. 051, 703, 2 Am. 
 Eep. 025; Chisholm v. Coleman, 43 Ala. 204, 
 94 Am. Dec. 077. Sec In: .Ilia:; Austin, Jur. 
 Lect. vi. p. 330. 
 
 A wife de facto only is one whose mar- 
 riage is voidable by decree; 4 Kent 30. 
 
 Blockade dc facto is one actually main- 
 tained : 1 Kent I I. 
 
 De Facto Corporations. A colorable cor- 
 porate organization of persons Intending in 
 good faith to form a corporal inn, under a 
 law authorizing it, who have failed to com- 
 ply with one or more provisions of the stat- 
 ute, but have used some of the powers 
 which, if a de jure corporation, it would 
 have possessed. 
 
 An apparent corporate organization, as- 
 serted to be a corporation by its members, 
 and actually acting as such, but lacking the 
 creative fiat of the law. In re Gibbs' Estate. 
 157 Pa. 59, 27 Atl. 3S3, 22 L. R. A. 270. 
 
 There must have been: (1) A colorable 
 corporate organization; Bergeron v. Hobbs, 
 9G Wis. 041, 71 N. W. 1050, 05 Am. St. Rep. 
 85; Abbott v. Refining Co., 4 Neb. 416; Fin- 
 negan v. Noerenberg, 52 Minn. 24:;, :,:; x. \v. 
 1150, 18 L. R. A. 778, 38 Am. St. Rep. 552; 
 McLeary v. Dawson, 87 Tex. 524, 538, 29 S. 
 W. 1044; Tulare Irr. District v. Shepard, 
 185 U. S. 13, 22 Sup. Ct. 531, 46 L. Ed. 77:'.. 
 An agreement to do business as a corpora- 
 tion, fulfilling part of the requisites but pur- 
 posely stopping short of complete incorpora- 
 tion is not sufficient ; Card v. Moore, 173 N. 
 Y. 598, GG X. E. 1105. 
 
 (2) A statute authorizing the proposed 
 corporation; American Loan & Trust Co. v. 
 R. Co.. ir.T 111. 641, 42 N. E. 15?,; Imperial 
 B'l'g Co. v. Board of Trade, 2::s ill. 100, 87 
 X. E. 167; Eaton v. Walker, 70 Mich. 579, 
 43 X. W. 638, 6 L. R. A. 102; Bradley v. 
 Reppill, 133 Mo. 515. 32 S. W. 645, 34 S. W. 
 841, 54 Am. St. Rep. 685; Duke v. Taylor, 37 
 Fla. G4, 19 South. 172, 31 L. R. A. 484. 53 
 Am. St. Rep. 2:12; Davis v. Stevens, 104 Fed. 
 235j Snyder v. Studebaker, 19 End. 462, 81 
 Am. Dec. 415; Tulare lrr. District v. Shep- 
 ard, 185 U. S. 13. 22 Sup. Ct. 531, 46 L. Ed. 
 773; which, though in most cases a general 
 Incorporation act. may be a special charter, 
 of which there has been a failure to perform 
 some condition; Utica Ins. Co. v. Tilnian, 1 
 Wend. (N. Y.) 555; Bank of Manchester v. 
 Allen, 11 Vt 302; Society of Middlesex Hus- 
 bandmen & Manufacturers v. Davis, ."> MetC. 
 (Mass.) 133; Buncombe Turnpike Co. v. 
 M'Carson, IS X. C. 30G; Gaines v. Bank of 
 Mississippi, 12 Ark. 769; and it may be un- 
 der a law passed by a de facto legislature; 
 U. S. v. Ins. Companies. 22 Wall. (I*. S.) 99; 
 or under a law passed subsequently to the 
 organization providing for the recognition of 
 
 existing corporations on filing a certificate, 
 
 which it failed to do; Tennessee Automatic 
 
 Lighting Co. v. Massey [1 B. W. 35; 
 
 or if there is a law authorizing it, and the 
 
 attempt was under a different law. it i- 
 
 Bdenl ; Georgia S. & F, R. ( ' 
 
 ■n <;a. 306, 21 S. E. 701, ■:■! L. R. A 
 
 47 Am. St. Rep. 15.",. But \\ h 
 
 rations of different states attempted t<> 
 
 merge, without any enabling statute, it was 
 
 a nullity and they did n irpora- 
 
 tion de facto; Whaley v. Bankers' Uni< 
 
 the World, 39 Tex. Civ. App. 385, 88 S. W. 
 
 259; American Loan & Trust Co. v. 1; 
 
 157 111. 641, 42 X. E. 15:;. 
 
 (3) A user of corporate powers conferred ; 
 Elgin Xat. Watch Co. v. Loveland. 182 
 
 41; Emery v. De Peyster, 77 App. Div. 65, 7* 
 X. Y. Supp. 105G; Tulare Irr. Dist. v. - 
 ard, 185 U. S. 13, 22 Sup. Ct. 531, 4G L. Kd. 
 773. 
 
 (4) Good faith in the transaction; Tulare 
 Irr. Dist. v. Shepard, 1S5 U. S. 1, 22 Sup. 
 Ct. 531, 46 L. Ed. 773; Williamson v. Loan 
 Fund Ass'n, S9 Ind. 389; Hasselman v. 
 Mortgage Co., 97 Ind. 365; Vanneman v. 
 Young, 52 X. J. L. 403, 20 Atl. 53; Elizath th- 
 town Gaslight Co. v. Green, 49 X. .7. K i. 
 329, 338, 21 Atl. 5G0; Society IVrun v. Cleve- 
 land, 43 Ohio St. 4S1, 3 X. E. 357; American 
 Loan & Trust Co. v. R. Co., 157 111. G41, 652, 
 42 X. E. 15:;: Stanwood v. Metal Co., 107 
 111. App. 5G9; Gilkey v. Town of How, 105 
 Wis. 41, 45, 81 X. W. 120, 49 L. R. A. 4S3 ; 
 Slocum v. Head, 105 Wis. 431, 81 X. W. 673, 
 50 L. R. A. 324; Haas v. Bank, 41 Neb. 751, 
 t;o X. W. 85. 
 
 The second and third conditions were giv- 
 en as a sufficient definition in Methodist 
 Episcopal Union Church v. Pickett. 19 X. Y. 
 482, and this was adopted in Trustees of 
 East Xorway Lake Norwegian Evangelical 
 Lutheran Church v. Froislie, 37 Minn. 4 17, 
 35 X. W. 260; but criticised in Finnegan v. 
 Noerenberg, 52 Minn. 243, 53 X. W. 1150, I s 
 L. R. A. 778, 3S Am. St 1 where the 
 
 first was added and the definition, so amend- 
 ed, repeated in Johnson v. Okerstrom, 70 
 Minn. 303, 7:'. X. W. 147. was. in 
 to that of the Xew York court, ado].; 
 Gibbs' Estate, 157 Pa. 59, 27 Atl. 383, 22 L. 
 R. A. 276. It is believed, however, that the 
 fourth must he added to make a defil 
 completely expressing all the conditions 
 which are required by due consideration of 
 the authorities which create and support the 
 doctrine of dc facto corporations. Indeed in 
 Tulare Irr. Dist. v. Shepard. 185 U. S. 1. 14. 
 22 Si Ul . Ot 531, 46 L. lid. 773. Peckham, J., 
 while enumerating the first three coin' 
 as the requisites proceeds in the same para- 
 graph to state the "bona fide attempt to or- 
 ganize" under a general law. and "actual 
 user of tie corporate franchise" as the ele- 
 ments which constituted the defendant a dc 
 facto corporation. The four conditions are 
 given substantially as requisites in many
 
 DE FACTO 
 
 764 
 
 DE FACTO 
 
 cases ; Clark v. Coal Co., 35 Ind. App. 65, 73 
 N. E. 727 ; Mackay v. R. Co., 82 Conn. 73, 72 
 Atl. 583, 24 L. R. A. (N. S.) 768; Marsh v. 
 Mathias, 19 Utah 350, 56 Pac. 1074 ; Franke 
 v. Manu, 106 Wis. US, SI N. W. 1014, 48 L. 
 R. A. 856 ; Stevens v. History Co., 140 App. 
 Div. 570, 125 N. Y. Supp. 573; and are all 
 combined under three heads in Stanwood v. 
 Metal Co., 107 111. App. 569. 
 
 The mere carrying on, under a company 
 name, of a business of such character as may 
 well be conducted by an individual, or part- 
 nership, does not constitute a de facto corpo- 
 ration ; Elgin Nat. Watch Co. v. Loveland, 
 132 Fed. 41 ; nor is a bank, exclusively own- 
 ed by one person, such a corporation ; Long- 
 fellow v. Barnard, 59 Neb. 455, 81 N. W. 307. 
 Such corporations are recognized by the 
 same rule which recognizes de facto officers, 
 and this is necessary for public and private 
 security; Clement v. Everest, 29 Mich. 19. 
 There cannot be a corporation de facto where 
 it could not exist de jure; Davis v. Stevens, 
 104 Fed. 235; Brown v. Power Co., 113 Ga: 
 462, 39 S. E. 71; State v. Stevens, 16 S. D. 
 309, 92 N. W. 420; Evenson v. Ellingson, 67 
 Wis. 634, 31 N. W. 342; nor can one exist 
 under an unconstitutional statute; Clark v. 
 Coal Co., 165 Ind. 213, 73 N. E. 1083, 112 Am. 
 St. Rep. 217; Huber v. Martin, 127 Wis. 
 412, 105 N. W. 1031, 1135, 3 L. R. A. (N. S.) 
 653, .115 Am. St. Rep. 1023, 7 Ann. Cas. 400. 
 The state only can proceed against such 
 corporation, by quo warranto to test the va- 
 lidity of its corporate existence; Hon v. 
 State, 89 Ind. 249 ; Savings Bank Co. v. Mil- 
 ler, 24 Ohio C. C. 198 ; Los Angeles Holiness 
 Band v. Spires, 126 Cal. 541, 5S Pac. 1049; 
 Armour v. E. Bement's Sons, 123 Fed. 56, 62 
 C. C. A. 142; Mayor, etc., of City of Wilming- 
 ton v. Addicks, 8 Del. Ch. 310, 43 Atl. 297; 
 Wyandotte Electric-Light Co. v. City of Wy- 
 andotte, 124 Mich. 43, 82 N. W. 821 ; and this 
 is a rule of public policy ; Continental Trust 
 Co. v. R. Co., 82 Fed. 642, 649; and the de 
 facto corporation may be made sole defend- 
 ant in such proceeding without joining the 
 associates; New Orleans Debenture, etc., Co. 
 v. Louisiana, ISO U. S. 320, 21 Sup. Ct. 378, 
 45 L. Ed. 550; and a decree at the suit of 
 the state avoiding the charter does not deny 
 to the incorporators the equal protection of 
 the laws or take away their property with- 
 out due process of law; id.; but a private 
 individual cannot institute proceedings by 
 quo xcarranto for the forfeiture of a corpo- 
 rate charter ; Attorney General v. Adonai 
 Shomo Corp., 167 Mass. 424, 45 N. E. 762; 
 Appeal of Western Pennsylvania R. Co., 104 
 Pa. 399; Com. v. Bank, 2 Grant, Cas. (Pa.) 
 392; North v. State, 107 Ind. 356, 8 N. E. 
 159 ; State v. Turnpike Co., 21 N. J. L. 9. An 
 action instituted on behalf of the state to 
 vacate a charter for non-compliance with the 
 act under which it purports to have organiz- 
 ed may be instituted- by "the attorney-gen- 
 eral," without a relator, and it is strictly a 
 
 people's action; People v. Cement Co., 131 
 N. Y. 143, 29 N. E. 947, 15 L. R. A. 240. 
 
 The corporate existence may not be at- 
 tacked by the associates who have acted as 
 a corporation and are sued as such by one 
 with whom they have dealt as such ; Racine 
 & M. R. Co. v. Trust Co., 49 111. 331, 95 Am. 
 Dec. 595 ; Hamilton v. R. Co., 144 Pa. 34, 23 
 Atl. 53, 13 L. R. A. 779 ; Rush v. Steamboat 
 Co., 84 N. C. 702; Empire Mfg. Co. v. Stu- 
 art, 46 Mich. 4S2, 9 N. W. 527; Toledo, St. 
 L. & K. C. R, Co. v. Trust Co., 95 Fed. 497, 
 507, 36 C. C. A. 155 ; contra; Boyce v. Trus- 
 tees of M. E. Church, 46 Md. 359 ; or by one 
 of the associates as against the others ; Cur- 
 tis v. Tracy, 169 111. 233, 4S N. E. 399, 61 Am. 
 St. Rep. 168; Lincoln Park Chapter No. 177 
 Royal Arch Masons v. Swatek, 204 111. 228, 
 68 N. E. 429 ; Franke v. Mann, 106 Wis. 118, 
 81 N. W. 1014, 48 L. R. A. 856; Merchants' 
 & Planters' Line v. Waganer, 71 Ala. 581, 
 585 ; Heald v.' Owen, 79 la. 23, 44 N. W. 210 ; 
 Foster v. Moulton, 35 Minn. 45S, 29 N.. W. 
 155; or by all the others as against one; 
 Meurer v. Protective Ass'n, 95 Mich. 451, 54 
 N. W. 954; or by an associate or organizer 
 as against one who is induced by him to deal 
 with the corporation (as to sell property to 
 it) ; Smith v. Mayfield, 163 111. 447, 45 N. E. 
 157 ; or by one who deals or contracts with 
 it as a corporation; Commercial Bank of 
 Keokuk, la., v. Pfeiffer, 108 N. Y. 242, 15 N. 
 E. 311; Seven Star Grange No. 73, Patrons 
 of Husbandry, v. Ferguson, 98 Me. 176, 56 
 Atl. 648; Hudson v. Seminary Corp., 113 111. 
 618; Cravens v. Eagle Cotton Mills Co., 120 
 Ind. 6, 21 N. E. 9S1, 16 Am. St. Rep. 29S; 
 Bartlett v. Wilbur, 53 Md. 485, 49S ; Butch- 
 ers' & Drovers' Bank of St Louis v. McDon- 
 ald, 130 Mass. 264; Bibb v. Hall, 101 Ala. 
 79, 14 South. 9S; Canfield v. Gregory, 66 
 Conn. 9, 33 Atl. 536 ; Way v. Grease Co., 60 
 N. J. Eq. 263, 47 Atl. 44 ; Lincoln Park Chap- 
 ter No. 177 Royal Arch Masons v. Swatek, 
 204 111. 228, 68 N. E. 429; nor can one who 
 contracts with the associates as a corpora- 
 tion hold them individually liable for a 
 breach; Whitford v. Laidler, 94 N. Y. 145, 
 151, 46 Am. Rep. 131; Vanneman v. Young, 
 52 N. J. L. 403, 20 Atl. 53 ; Clausen v. Head, 
 110 Wis. 405, 85 N. W. 1028, 84 Am. St. Rep. 
 933; Love v. Ramsey, 139 Mich. 47, 102 N. 
 W.'279; Earned v. Beal, 65 N. H. 184, 23 
 Atl. 149; Tennessee Automatic Lighting Co. 
 v. Massey (Tenn.) 56 S. W. 35; Richards v. 
 Bank, 75 Minn. 196, 77 N. W. S22 ; Planters' 
 & Miners' Bank v. Padgett, 69 Ga. 159 ; Ow- 
 ensboro Wagon Co. v. Bliss, 132 Ala. 253, 31 
 South. 81, 90 Am. St. Rep. 907; unless un- 
 der a statute making persons who unlawful- 
 ly assume corporate powers personally lia- 
 ble ; Loverin v. McLaughlin, 161 111. 417, 434, 
 44 N. E.. 99 ; Sweney Bros. v. Talcott, 85 la. 
 103; Thornton v. Balcom, 85 la. 198, 52 N. 
 W. 190. 
 
 It Is a general rule that the validity of 
 the corporate organization cannot be collat- 

 
 DE FACTO 
 
 7G5 
 
 DE FACTO 
 
 erally attacked ; Doty v. Patterson, 155 Ind. 
 60, 5G N. E. 668 ; Gilkey v. Town of How, 105 
 Wis. 41, 46, 81 N. W. 120, 49 L. R. A. 483; 
 Cochran v. Arnold, 58 Pa. 399; Mononga- 
 hela Bridge Co. v. Traction Co., 196 Pa. 25, 
 46 Atl. 99, 79 Am. St. Rep. 685 ; State v. Ful- 
 ler, 96 Mo. 105, 9 S. W. 583 ; Keene v. Van 
 Reuth, 48 Md. 1S4 ; Saunders v. Farmer, 62 
 N. H. 572 ; People v. La Rue, 67 Cal. 526, 8 
 Pac. 84; Atchison, T. & S. F. R. Co. v. Com'rs 
 of Sumner County, 51 Kan. 617, 33 Pac. 312 ; 
 Crowder v. Town of Sullivan, 128 End. 486, 
 28 N. E. 94, 13 L. R. A. 647; Otoe County 
 Fair & Driving Park Ass'n v. Domau, 1 Neb. 
 (Unof.) 179, 95 N. W. 327 ; Terry v. Packing 
 & Provision Co., 105 111. App. 063; People v. 
 Irr. Dist, 12S Cal. 477, 01 Pac. SO; Harris 
 v. Land Co., 128 Ala. 652, 29 South. 611. Col- 
 lateral attack has been permitted in a suit 
 to enjoin the collection of .assessments for 
 turnpike construction on the ground of want 
 of legal organization; Busenback v. Road 
 Co., 43 Ind. 265 ; also as a defense to a suit 
 against an original associate for his stock 
 subscription ; Indianapolis Furnace & Min- 
 ing Co. v. Herkimer, 46 Ind. 142; Dorris v. 
 Sweeney, 60 N. Y. 463 (where it was said 
 that one contracting with a de facto corpo- 
 ration after its formation cannot set up its 
 invalidity) ; and where capital stock agreed 
 upon is not fully subscribed, a subscriber who 
 has not participated in, or had notice of, the 
 organization, is not estopped from setting up 
 the illegality of the assessment for his sub- 
 scriptions; Haskell v. Worthington, 94 Mo. 
 560, 7 S. W. 481. In Buffalo & A. R. Co. v. 
 Cary, 26 N. Y. 75, it was held that very 
 slight proof of user (election of officers by 
 the persons calling themselves directors) was 
 sufficient to prevent a subscriber from setting 
 up the defense of defective organization in 
 a suit against him for his stock subscrip- 
 tion. The validity of a conveyance to or by 
 a corporation de facto cannot be questioned 
 in a collateral proceeding; Finch v. Ullman, 
 105 Mo. 255, 16 S. W. 863, 24 Am. St. Rep. 
 383, where it was said that "this rule is not 
 based on estoppel . . . but on the re- 
 quirements of public policy that the security 
 of titles be not impaired." 
 
 Collateral attack is usually permitted in 
 defence against an attempt by a de facto cor- 
 poration to exercise the right of eminent 
 domain ; Tulare Irrigation District v. Shep- 
 ard, 185 U. S. 1, 22 Sup. Ct. 531, 46 L. Ed. 
 773; In re Union El. R. Co. of Brooklyn, 
 112 N. Y. 61, 19 N. E. 001. 2 I- U. A. 359; 
 "Williamson v. Bldg. & Loan Fund Ass'n, 89 
 Ind. 389 ; Kinston & C. R. Co. v. Stroud, 132 
 N. C. 413, 43 S. E. 913 (see Wellington & P. 
 R. Co. v. Lumber Co., 114 N. C. 690, 19 S. E. 
 646); Towers v. R. Co., 33 Ohio St 429; St 
 Joseph & I. R. Co. v. Shambaugh, 106 Mo. 
 557, 17 S. W. 581 ; Hampton v. Water Supply 
 Co., 65 N. J. L. 158, 46 Atl. 650; contra, Ed- 
 dleman v. Power Co., 217 111. 409, 75 N. E. 
 510; Terre Haute & P. R. Co. v. Robbins, 
 
 247 111. 376, 93 N. E. 39S ; Detroit & T. S. L, 
 R. Co. v. Campbell, 140 Mich. 3S4, lu3 N. W. 
 856; Central of Georgia R. Co. v. It. Co., 144 
 Ala. 639, 39 South 173, 2 J.. P. A. tfi 
 144; Postal Tel. Cable Co. v. R. C 
 Utah 471. 65 Pac. 735, 90 Am. St I 
 and see Portland & <;. Turnpike Co. 
 88 Ky. 226, 10 S. W. 791; and it I 
 collateral attack where there is no law un- 
 der which it could become a corporate 
 jure; Clark v. Coal Co., 165 Ind. 213, 1 
 E. 10S3, 112 Am. St Rep- 217. As to the 
 right of a de facto corporation to e.\> 
 the power of eminent domain, see 2 P. P. A. 
 (X. S.) 144, note. 
 
 In some cases where a tort was committed 
 for which the remedy would have been 
 against the corporation, if dc jure, because 
 of the defective organization the 
 were held personally liable; Vredenburg v. 
 Behan, 33 La. Ann. 627; Smith v. Warden, 
 S6 Mo. 3S2; and a similar remedy against 
 associates has been given for breach of con- 
 tract where the intention was for corporate 
 action, but the other party did not know it; 
 Guckert v. Ilacke, 159 Pa. 303, 2S Atl. 247; 
 New York Nat. Exch. Bank v. Crowell, 177 
 Pa. 313, 35 Atl. 613 (see Yanhorn v. Corcoran, 
 127 Pa. 255, 208, IS Atl. 10, 4 L. R. A. j 
 Christian & Craft Grocery Co. v. Lumber Co., 
 121 Ala. 340, 25 South, 566; Slocum v. . 
 105 Wis. 431, 81 N. W. 673, 50 L. R. A. 32 1 ; 
 Field v. Cooks, 16 La. Ann. 153; but if he 
 elects to proceed against them as a corpora- 
 tion and fails he is estopped afterwards to 
 sue them as individuals; Clausen v. I 
 110 Wis. 405, 85 N. W. 1028, 84 Am. St. Rep. 
 933. 
 
 The immunity from personal liability of 
 the associates who form a de facto corpora- 
 tion is limited to transactions with those who 
 deal with them as a corporation, entered in- 
 to in good faith, and it is based upon that 
 and the estoppel arising from the dealing 
 with the supposed organization as a corpora- 
 tion, generally believed to be and treated as 
 such; Slocum v. Head, 105 Wis. 431, 43 1. 81 
 X. W. 073. 50 L. P. A. 321; Gartside Coal 
 Co. v. Maxwell, 22 Fed. 197. 
 
 An injunction has been refused against a 
 de facto corporation exercising powers which 
 would belong to it if de jure; Elizabethtown 
 Gas Light Co. v. Green, 4!i X. .1. l: i. 329, 331, 
 .",32. 2 1 Atl. 560; but equity has assumed ju- 
 risdiction to ascertain whether the organiza- 
 tion of a corporation is legal ; Union Water 
 Co. v. Kean, 52 X. J. EJq. 111. 27 Atl. 1015. 
 
 Such a corporation may "maintain an ac- 
 tion against any one. other than the 
 who has contracted with the corporation, or 
 who has done it a wrong;" Baltimore & P. 
 R. Co. v. Fifth Baptist Church. 137 P. 8 
 572, 11 Sup. Ct 185, 34 P. Ed. 784; Tar Riv- 
 er Xav. Co. v. Xeal, 10 X. C. 520. 537: and 
 in some states there are statutes forbidding 
 one suing or sued by a corporation to set up 
 the lack of legal organization, as e. g. la'
 
 DE FACTO 
 
 766 
 
 DE FACTO 
 
 Code (1897) § 1G36; Ky. Comp. St. 1903, § 
 566; Comp. Laws S. D. § 2S92, which last 
 statute is held to be merely declaratory of 
 the law as it previously existed ; Davis v. 
 Stevens, 104 Fed. 235. 
 
 It may seek an injunction to restrain ir- 
 reparable injury to property; Williams v. 
 Ry. Co., 130 Ind. 71, 29 N. E. 408, 15 L. R. A. 
 64, 30 Am. St. Rep. 201 ; Cincinnati, L. & C. 
 R. Co. v. Ry. Co., 75 111. 113; or sue any 
 one, other than the state, either for breach of 
 contract or a wrong done to it; Baltimore 
 & P. R. Co. v. Fifth Baptist Church, 137 U. S. 
 568, 572, 11 Sup. Ct. 185, 34 L. Ed. 784; as 
 for infringement of a patent; American Ca- 
 ble Ry. Co. v. City of New York, 68 Fed. 227 ; 
 for the protection of its property from a tort- 
 feasor ; Searsburgh Turnpike Co. v. Cutler, 6 
 Vt. 315, 323 ; for trespass on personal prop- 
 erty; Persse & Brooks Paper Works v. Wil- 
 lett, 1 Rob. (N. Y.) 131 ; for conversion ; Rem- 
 ington Paper Co. v. O'Dougherty, 65 N. Y. 
 570 ; or as indorsee or assignee of a note or 
 chose in action ; Wilcox v. R. Co., 43 Mich. 
 584, 590, 5 N. W. 1003; Cozzens v. Brick 
 Co., 166 111. 213, 46 N. E. 788 ; Haas v. Bank, 
 41 Neb. 754, 60 N. W. 85; or for use and oc- 
 cupation of land ; Philippine Sugar Estates 
 Development Co. v. U. S., 39 Ct. CI. 225. 
 
 Where the existence of the corporation is 
 only collaterally in issue, slight proof only 
 is required to make a prima facie case of de 
 facto incorporation ; Lucas v. Bank, 2 Stew. 
 (Ala.) 147 ; Memphis & St. F. Plank Road Co. 
 v. Rives, 21 Ark. 302; Mix v. Bank, 91 111. 
 20, 33 Am. Rep. 44; Eakright v. R. Co., 13 
 Ind. 404 ; Merchants' Nat. Bank v. Glendon 
 Co., 120 Mass. 97 ; United States Vinegar Co. 
 v. Schlegel, 143 N. Y. 537, 543, 38 N. E. 729 ; 
 President, etc., of Bank of Manchester v. 
 Allen, 11 Vt. 302. 
 
 A de facto corporation may be a conduit of 
 title, to protect a mortgagee; Hackensack 
 Water Co. v. De Kay, 36 N. J. Eq. 559 ; Dug- 
 gan v. Inv. Co., 11 Colo. 113, 17 Pac. 105; 
 Georgia S. & F. R. Co. v. Trust & Deposit 
 Co., 94 Ga. 306, 21 S. E. 701, 32 L. R. A. 20S, 
 47 Am. St. Rep. 153; or a grantee; Society 
 Perun v. Cleveland, 43 Ohio St. 481, 3 N. E. 
 357 (where the state had maintained quo 
 warranto) ; or a lessee; City of Denver v. 
 Mullen, 7 Colo. 35S, 3 Pac. 693; and the 
 grantee of such corporation has maintained 
 a writ of entry ; Saunders v. Farmer, 62 N. 
 H. 572 ; Lusk v. Riggs, 70 Neb. 713, 97 N. W. 
 1033; id., 70 Neb. 718, 102 N. W. 88; Cren- 
 shaw v. Ullman, 113 Mo. 633, 20 S. W. 1077 ; 
 or ejectment; Finch v. TJUman, 105 Mo. 255, 
 16 S. W. 863, 24 Am. St. Rep. 383; though 
 against one who has not dealt with the as- 
 sociates as a corporation; Chiniquy v. Cath- 
 olic Bishop, 41 111. 14S; East Norway Lake 
 Church v. Froislie, 37 Minn. 447, 35 N. W. 
 260. 
 
 A de facto corporation may proceed against 
 its grantor for reformation of a deed; Otoe 
 County Fair & Driving Park Ass'n v. Doman, 
 
 1 Neb. (Unof .) 179, 95 N. W. 327 ; or to have 
 land discharged from the lien of a judg- 
 ment against its grantor; Keyes v. Smith, 
 67 N. J. D. 190, 51 Atl. 122; and may ac- 
 quire, hold and convey land ; New York, B. 
 & E. R. Co. v. Motil, 81 Conn. 466, 71 Atl. 
 563. 
 
 If the associates deal as partners and con- 
 tinue to do so after being incorporated, with- 
 out giving notice, they are still liable as 
 partners ; Perkins v. Rouss, 78 Miss. 343, 29 
 South. 92; Martin v. Fewell, 79 Mo. 401, 
 412 ; and where one has no knowledge of 
 the existence of a charter, and there is noth- 
 ing to put him on inquiry, he may hold the 
 supposed incorporators personally liable as 
 partners ; Guckert v. Hacke, 159 Pa. 303, 28 
 Atl. 249. 
 
 The theory that a de facto corporation has 
 no real existence has no foundation, either 
 in reason or authority. A de facto corpora- 
 tion is a reality. It has an actual and sub- 
 stantial legal existence. It is, as the term 
 implies, a corporation; Society Perun v. 
 Cleveland, 43 Ohio St. 481, 490, 3 N. E. 357. 
 See discussions of de facto corporations in 
 20 Harv. L. Rev. 456 ; 25 id. 623. 
 
 De Facto Court. A court established by 
 statute apparently valid, which has organiz- 
 ed with a judge appointed, and has exercised 
 authority as a court. Burt v. R. Co., 31 
 Minn. 472, 18 N. W. 285, 289. 
 
 "A de facto court cannot exist by virtue of 
 a statute under a written constitution which 
 ordains one supreme court, and defines the 
 qualifications and duties of its judges, and 
 prescribes the mode of appointing them. The 
 attempt of the legislature to abolish the con- 
 stitutional court of appeals and establish a 
 new one was ineffectual to create either a de 
 facto or de jure court for want of legislative 
 power"; Hildreth's Heirs v. Mclntire's Dev- 
 isee, 1 J. J. Marsh. (Ky.) 206, 19 Am. Dec. 61. 
 De Facto Judge. One duly elected, quali- 
 fied and acting as such, under conditions on 
 which one might be properly appointed, but 
 who failed to comply with some necessary act 
 to qualify him, as taking the oath of office. 
 State v. Miller, 111 Mo. 542, 20 S. W. 243. 
 There must be a duly constituted office and 
 a vacancy therein before the election or ap- 
 pointment; Caldwell v. Barrett, 71 Ark. 310, 
 74 S. W. 748. 
 
 One has been recognized as a de facto 
 judge, though the statute under which he 
 was appointed was unconstitutional and void, 
 when the office was originally created under 
 a valid law ; Walcott v. Wells, 21 Nev. 47, 24 
 Pac. 367, 9 L. R. A. 59, 37 Am. St. Rep. 478. 
 And when the incumbent was ill and an act- 
 ing judge was appointed, qualified, assumed 
 the duties and the public acquiesced, he was 
 held to be a de facto judge; Dredla v. 
 Baache, 60 Neb. 655, 83 N. W. 916. 
 
 DE FAIRE ECHELLE. In French Law. 
 A clause commonly contained in French in-
 
 DE FAIRE ECHELLE 
 
 767 
 
 DE INJURIA 
 
 surance policies, which is equivalent to a li- 
 cense for a vessel to touch and trade at in- 
 termediate ports. American Ins. Co. v. Gris- 
 wold, 14 Wend. (N. Y.) 491. 
 
 DE H/ERETICO COMBURENDO (Lat. 
 for burning a heretic). A writ which lay 
 where a heretic had been convicted of heresy, 
 had refused fo abjure or had abjured, and 
 had relapsed into heresy. 4 Bla. Com. 4G. 
 
 DE HOMfNE CAPTO IN WITHERNAM 
 (Lat. for taking a man in withernam). A 
 writ to take a man who had carried away a 
 bondman or bondwoman into another coun- 
 try beyond the reach of a writ of replevin. 
 3 Bla. Com. 129. 
 
 DE HOMINE REPLEGIANDO (Lat. for 
 replevying a man). A writ which lies to 
 replevy a man out of prison, or out of the 
 custody of a private person, upon giving se- 
 curity to the sheriff that the man shall he 
 forthcoming to answer any charge against 
 him. Fitzh. N. B. 66; 3 Bla. Com. 129. If 
 the latter eloigned his captive he could be 
 summarily imprisoned by a capias in wither- 
 nam. It was inefficient against wrongful im- 
 prisonment because it excepted the party if 
 he had been arrested on the king's order. 
 
 The statute — which had gone nearly out of 
 use, having been superseded by the writ of 
 habeas corpus — has been revived within a 
 few years in some of the United States in an 
 amended and more effectual form. It can be 
 used ohly for the benefit of the person im- 
 prisoned. 1 Kent 404, n. ; Hutchiugs v. Van 
 Bokkelen, 34 Me. 126. 
 
 See Maixprize. 
 
 A case is mentioned in Jackson & Gross, 
 Land. & Ten. § 788, where this writ was is- 
 sued by the supreme court of Pennsylvania 
 while the writ of habeas corpus was suspend- 
 ed during the war between the states. 
 
 DE IDIOTA INQUIRENDO. An old com- 
 mon-law writ, long obsolete, to inquire 
 whether a man be an idiot or not. 2 Steph. 
 Com. 509. 
 
 DE INCREMENTO (Lat. of increa'se). 
 Costs dc incremento, costs of increase — that 
 is, which the court assesses in addition to 
 the damages established by the jury. See 
 Costs de Incremento. 
 
 DE INJURIA (Lat. The full term is, de 
 injuria sua propria absque tali causa, of his 
 own wrong without such cause; or, where 
 part of the plea is admitted, absque residua 
 causa;, without the rest of the cause). 
 
 In Pleading. The replication by which in 
 an action of tort the plaintiff denies the ef- 
 fect of excuse or justification offered by 
 the defendant. 
 
 It can only be used where the defendant 
 pleads matter merely in excuse and not in 
 justification of his act. It is confined to 
 those instances in which the plea neither 
 denies the original existence of the right 
 which the defendant is charged with having 
 
 violated, nor alleges that it has been released 
 or extinguished, but sets up some new mat- 
 ter as a sufficient excuse or cause for that 
 which would otherwise and in its own na- 
 ture be wrongful. It cannot, therefore, be 
 properly used when the defendant 
 Leges any matter in the nature of title, in- 
 terest, authority, or matter of r< ■ 
 
 66; 1 B. & P. 76; Hyatt v. W 1. 4 
 
 (N. Y.) 159, note, 4 Am. Dec. 258; Gi 
 v. Sedgwick, l Wend. (N. Y. | 126; 0; 
 v. Shed. 12 Mass. 506; Bidgefield Park R. 
 Co. v. Ruckman, 38 N. J. L. 98; Steph. PL 
 276; Pepper, PL 35. 
 
 The English and American cases are at va- 
 rii e as to what constitutes such legal au- 
 thority as cannot be replied to by de injuria. 
 of the American cases hold that this 
 replication is bad whenever the defendant in- 
 sists upon a right, no matter from what 
 source it may be derived; and this seems to 
 be the more consistent doctrine. 
 
 If tne plea in any sense justifies the act, 
 instead of merely excusing it, de injuria 
 cannot be used; Coburn v. Hopkins, 4 Wend. 
 (N. Y.) 577; Stickle v. Richmond, 1 Hill (N. 
 Y.) 78; Allen v. Scott, 13 111. SO. The 
 lish cases, on the other hand, hold that an 
 authority derived from a court not of record 
 may be traversed by the replication de in- 
 juria; 3 B. & Ad. 2. 
 
 The plaintiff may confess that portion of 
 a plea which alleges an authority in law or 
 an interest, title, or matter of record, and 
 aver that the defendant did the act in ques- 
 tion de injuria sun propria absque residua 
 causir, of his own wrong without the residue 
 of the cause alleged; Stickle v. Richmond. 1 
 Hill (N. Y.) 78; Curry v. Hoffman, 2 Am. 
 Law Reg. 246; Steph. PL 276. 
 
 The replication de injuria puts in issue the 
 whole of the defence contained in the plea ; 
 and evidence is, therefore, admissible to dis- 
 prove any material averment in the whole 
 plea; McKelv. PL 50; 8 Co. 66; 11 East 
 451; 10 Bingh. 157; Tubbs v. Caswell, 8 
 Wend. (N. Y.) 129; Erskine v. Ilohubach, 
 14 Wall. (U. S.) 613, 20 L Ed. 745. See 2 
 Cr. M. & R. 338. In England, however, by a 
 uniform course of decisions in their courts, 
 evidence is not admissible under the replica- 
 tion de injuria to a plea, for instance, of 
 moderate castigavit or molliter nianus im- 
 post/ it, to prove that an excess of force was 
 used by the defendant; but it is necessary 
 that such excess should be specially pleaded. 
 There must be a new assignment; 2 Cr. M. 
 & R. 33S; 1 Bingh. 317; 1 Bingh. N. C. 3S0; 
 3 M. & W. 150. 
 
 In this country, on the other hand, though 
 some of the earlier cases followed the Eng- 
 lish doctrine, later cases decide that the 
 plaintiff need not plead specially in such a 
 case. It is held that there is no new cause 
 to assign when the act complained of is the 
 same that is attempted to be justified by 
 plea. Therefore the fact of the act being
 
 DE INJURIA 
 
 7G8 
 
 DE JURE 
 
 moderate is a part of the plea, and is one of 
 the points brought in issue by de injuria; 
 and evidence is admissible to prove an ex- 
 cess; Hannen v. Edes, 15 Mass. 351 ; Ben- 
 nett v. Appleton, 25 Wend. (N. Y.) 371; El- 
 liot v. Kilburn, 2 Vt. 474; Bartlett v. Church- 
 ill, 24 Vt. 218; Vreeland v. Berry, 21 N. J. 
 L. 1S3. 
 
 Though a direct traverse of several points 
 going to make up a single defence in a plea 
 will be bad for duplicity, yet the general rep- 
 lication de injuria cannot be objected to 
 on this ground, although putting the same 
 number of points in issue ; 3 B. & Ad. 1 ; 
 Marshall v. Aiken, 25 Vt. 330; 2 Bingh. N. 
 C. 579; 3 Tyrwh. 491. Hence this mode of 
 replying has a great advantage when a spe- 
 cial plea has been resorted to, since it en- 
 ables the plaintiff to traverse all the facts 
 contained in any single point, instead of be- 
 ing obliged to rest his cause on an issue join- 
 ed on one fact alone. 
 
 In England it is held that de injuria may 
 be replied in assumpsit; 2 Bingh. N. C. 579. 
 
 In this country it has been held that the 
 use of de injuria isTimited to actions of tort ; 
 Coffin v. Bassett, 2 Pick. (Mass.) 357. But 
 in New Jersey it may be used in actions ex 
 contractu wherever a special plea in excuse 
 of the alleged breach of contract can be 
 pleaded, as a general traverse to put in is- 
 sue every material allegation in the plea ; 
 Ridgefield Park R. Co. v. Ruckman, 38 N. J. 
 L. 98. Whether de injuria can be used in ac- 
 tions of replevin seems, even in England, to 
 be a disputed question. The following cases 
 decide that it may be so used ; 9 Bingh. 756; 
 3 B. & Ad. 2; contra, 1 Chit. PI. 622. 
 
 The improper use of de injuria is held 
 to be only a ground of general demurrer ; 6 
 Dowl. 502 ; but see 3 M. & W. 230; Coffin v. 
 Bassett, 2 Pick. (Mass.) 357. Where it is 
 improperly employed, the defect will be cured 
 by a verdict; Lytle v. Lee, 5 Johns. (N. Y.) 
 112; Hob. 76; 1 T. Raym. 50. See Crogate's 
 Case, 1 Sm. Lead. Cas. 247. 
 
 DE JUDAISMO, STATUTUM. The name 
 of a statute passed in the reign of Edward 
 L, which enacted severe penalties against the 
 Jews. Barringt. Stat. 197. 
 
 D E JURE. Rightfully ; of right; lawfully ; 
 by legal title. Contrasted with de facto 
 (which see). 4 Bla. Com. 77. 
 
 Of right: distinguished from de gratia 
 (by favor). By law: distinguished from de 
 ccquitate (by equity). 
 
 The term is variously applied; as, a king 
 or officer de jure, or a wife de jure. 
 
 A government de jure, but not de facto, 
 is one deemed lawful, which has been sup- 
 planted; a government de jure and also de 
 facto is one deemed lawful, which is present 
 or established ; a government de facto is one 
 deemed unlawful, but which is present or 
 established. Any established government, be 
 it deemed lawful or not, is a government 
 
 de facto. Austin, Jur. sec. vi. 336. See Db 
 Facto. 
 
 DE LA PLUS BELLE (Fr. of the fairest). 
 A kind of dower; so called because assigned 
 from the best part of the husband's estate. 
 It was connected with the military tenures, 
 and was abolished, with them, by stat. 12 
 Car. II. cap. 24. Littleton § 48 ; 2 Bla. Com. 
 132, 135 ; Scrib. Dower 18 ; 1 Washb. R. P. 
 149, n. See Doweb. In Law French, de la 
 pluis beale. 
 
 DE LIBERTATIBUS ALLOCANDIS (Lat. 
 for allowing liberties). A writ, of various 
 forms, to enable a citizen to recover the liber- 
 ties to which he was entitled. Fitzh. N. B. 
 229; Reg. Orig. 262. 
 
 DE LUNATICO INQUIRENDO (Lat. to in- 
 quire as to lunacy). The name of a writ di- 
 rected to the sheriff, directing him to inquire 
 by good and lawful men whether one therein 
 named is a lunatic or not. See Hutchinson 
 v. Sandt, 4 Rawle (Pa.) 234, 26 Am. Dec. 
 127; Den v. Clark, 10 N. J. L. 217, 18 Am. 
 Dec. 417; Hart v. Deamer, 6 Wend. (N. Y.) 
 497; In re McAdams, 19 Hun (N. Y.) 292; 
 In re Kings County Insane Asylum, 7 Abb. 
 N. C. (N. Y.) 425; In re Hill, 31 N. J. Eq. 
 203. 
 
 An inquisition in lunacy proceedings must 
 show that the imbecility of the mind is such 
 as to render the imbecile unfit for the gov- 
 ernment of himself and his property; In re 
 Lindsley, 44 N. J. E<j. 564, 15 Atl. 1, 6 Am. 
 St. Rep. 913. 
 
 The English practice is now regulated by the 
 Lunacy Acts (16 & 17 Vict. c. 70, and 25 & 26 Vict. c. 
 86), under which the lord chancellor, upon petition 
 or information, grants a commission in the nature 
 of this writ; 2 Steph. Com. 511. In the U. S. the 
 practice i3 similar, and a commission of lunacy 
 is appointed. See Ray's Med. Jur. Ins. ; Ordron. 
 Jud. Asp. Ins. 225 ; In re Staudermann, 3 Abb. N. 
 C. (N. Y.) 187. 
 
 DE MANUCAPTIONE (Lat. of mainprize). 
 A writ, now obsolete, directed to the sheriff, 
 commanding him to take sureties for the 
 prisoner's appearance, — usually called main- 
 pernors — and to set him at large. Fitzh. N. 
 B. 250; 1 Hale, PI. Cr. 141; Coke, Bail <£ 
 Mainp. c. 10 ; Reg. Orig. 268 b. According to 
 its form, it was only available for persons in- 
 dicted for larceny before the sheriff by in- 
 quest of office. 
 
 DE MEDIETATE LINGU/E. A jury half 
 aliens and half natives. See Jtjby. 
 
 DE MEDIO (Lat. of the mesne). A writ 
 in the nature of a writ of right, which lies 
 where upon a subinfeudation the mesne (or 
 middle) lord suffers his under-tenant or ten- 
 ant paravail to be distrained upon by the 
 lord paramount for the rent due him from 
 the mesne lord. . Booth, Real Act. 136 ; Fitzh. 
 N. B. 135; 3 Bla. Com. 234 ; Co. Litt. 100 o. 
 
 DE MELIORIBUS DAMNIS (Lat). Of 
 the better damages. When a plaintiff hag 
 sued several defendants, and the damages
 
 DE MELTORIBUS DAMNT8 
 
 700 
 
 DE ODIO ET ATIA 
 
 
 have been assessed severally against each, he 
 has the choice of selecting the best, as he 
 cannot recover the whole. This is done by 
 making an election dc meUoribvs datrmu. 
 
 DE MERCATORIBUS, THE STATUTE. 
 The statute of Acton Burnell. See Acton 
 IIikxell. 
 
 DE MINIS. Writ of throats. A writ 
 which lay where a person was threatened 
 with personal violence, or the destruction of 
 his property, to compel the offender to keep 
 the peace. Reg. Orig. 88 '*. 89; Fitzh. Nat. 
 Brev. 79, G. SO; Blade. L. Diet. 
 
 DE MODO DECIMANDI (Lat of a man- 
 ner of taking tithes). 
 
 A prescriptive manner of taking tithes, dif- 
 ferent from the general law of taking tithes 
 in kind. It is usually by a compensation 
 either in work or labor, and is generally call- 
 ed a modus; Cro. Eli/.. 446; 2 P. Wms. 402; 
 2 Russ. & M. 102; 4 Y. & C, 269, 283; 2 P.la. 
 Com. lilt; 3 Steph. Com. 130. 
 
 DE NATURA BREVIUM (Lat). Concern- 
 ing the Nature of Writs. The title of more 
 than one text-book of English Mediaeval law. 
 Maitland, 2 Sel. Essays in Anglo-Ainer. Leg. 
 Hist. H49. See Register of Writs. 
 
 DE NON DEC I MAN DO (Lat. of not tak- 
 ing tithes). An exemption by custom from 
 paying tithes is said to be a prescription de 
 non decimando. A claim to be entirely dis- 
 charged of the payment of tithes, and to pay 
 no compensation in lieu of them. Cro. Eli/.. 
 511 ; 3 Bla. Com. 31. 
 
 DE NOVI OPERIS NUNCIATIONE (Lat). 
 In Civil Law. A form of injunction or inter- 
 dict which lies in some cases for the party 
 aggrieved, where a thing is intended to be 
 done against his right. Thus, where one 
 buildeth a house contrary to the usual and 
 received form of building, to the injury of 
 his neighbor, there lieth such an injunction, 
 which being served, the offender is either to 
 desist from his work or to put in sureties 
 that he shall pull it down if he do not in a 
 short time avow, i. c. show, the lawfulness 
 thereof. Ridley, Civ. & Eccl. Law, pt. 1, c. 
 1, S. 
 
 DE NOVO (Lat). Anew; afresh. When 
 a judgment upon an issue in part is reversed 
 on error for some mistake made by the court 
 in the course of the trial, a venire de novo 
 is awarded, in order that the case may again 
 be submitted to a jury. 
 
 DE ODIO ET ATIA (Lat of hatred and ill 
 will). A writ directed to the sheriff, com- 
 manding him to inquire whether a person 
 charged with murder was committed upon 
 just cause of suspicion, or merely propter 
 odium et atiam; and if upon the inquisition 
 due cause of suspicion did not appear, then 
 there issued another writ for the sheriff to 
 admit him to bail. 3 Bla. Com. 128. "A writ 
 for one who says he is imprisoned on a false 
 Bouv.— 49 
 
 accusation of crime." Maitland. in 2 Sel. Es- 
 says in Anglo-Amer. Leg. 1 1 i-t . 
 
 This was one of the many safeguards by 
 which the English law early endeavi : 
 protect the innocent against the op] 
 the powerful through a misuse of 
 The writ was to issue of course to any one, 
 without denial, and gratis. Bracton, 1. ."., tr. 
 2, ch. 8: Magna Carta, c. 26; Stat W 
 2 (13 Edw. I.), c. 29. It has now passed out 
 of use. 3 Bla. Com. 129. It was - 
 by habeas corpus. See Assize; Habeas Cob- 
 pus. 
 
 DE PARCO FRACTO (Lat. of pound- 
 breach). A writ which lay where cattle 
 taken in distress were rescued by their owner 
 after being actually Impounded. Fitzh. X. P.. 
 100; 3 Bla. Com. 146; Reg. Orig. 110 6; Co. 
 Litt 47 b. 
 
 DE PARTITIONE FACIENDA (Lat. for 
 making partition). The ancient writ for the 
 partition of lands held by tenants in com- 
 mon. 
 
 DE PERAMBULATONE FACIENDA (Lat 
 for making a perambulation). A writ which 
 lay where there was a dispute as to the 
 boundaries of two adjacent lordships or 
 towns, directed to the sheriff, commanding 
 him to take with him twelve discreet and 
 lawful knights of his county and make the 
 perambulation and set the bounds and limits 
 in certainty. Fitzh. N. B. 309, D. A similar 
 provision existed in regard to town-lit 
 Connecticut, Maine, Massachusetts, and New 
 Hampshire, by statute. See Perambulation. 
 
 DE PLEGIIS ACQUIETANDIS i Lat. for 
 clearing pledges). A writ which lay where 
 one had become surety for another to pay a 
 sum of money at a specified day. and the 
 principal failed to pay it If the surety was 
 obliged to pay, he was entitled to this writ 
 against his principal. Fitzh. X. B. 37 C ; 3 
 Reeve, Hist Eng. Law G5. 
 
 DE PR/EROGATIVA REGIS (Lat. of the 
 king's prerogative). The statute 17 Edw. I. 
 st. 1, c 9, defining the prerogatives of the 
 crown on certain subjects, but especially di- 
 recting that the king shall have ward of the 
 lands of idiots, taking the profits without 
 waste and finding them necessaries. 2 Steph. 
 Com. 509. 
 
 DE PROCEDENDO AD JUDICIUM. A 
 
 writ proceeding out of chancery and order- 
 ing the judges of any court to proceed to 
 judgment 3 Bla. Coin. 109. 
 
 DE PROPRIETATE PROBANDA (Lat 
 for proving property). A writ which issues 
 in a case of replevin, when the defendant 
 claims property in the chattels replevied and 
 the sheriff makes a return accordingly. The 
 writ directs the sheriff to summon an inquest 
 to determine on the validity of the claim ; 
 and, if they Bnd for the defendant, the sher- 
 iff merely returns their findirrg. The plain-
 
 DE PROPRIETATE PROBANDA 
 
 770- 
 
 DE RETORNO HABENDO 
 
 tiff is not concluded by such finding; he may 
 come into the court and traverse it. Hamm. 
 N. P. 456. 
 
 This writ has been superseded in England 
 by the "summons to interplead ;" in Penn- 
 sylvania and Delaware tbe "claim property 
 bond" is a convenient substitute for the old 
 practice, and similar to this is the practice 
 under the New York Code. Morr. Repl. 304. 
 
 It was pointed out in Weaver v. Lawrence, 
 1 Dall. (U. S.) 156, 1 L. Ed. 79, that in Eng- 
 land there were two kinds of replevin — when 
 the writ issued out of chancery, and under 
 the statute of Marlbridge, which enabled the 
 sheriff to replevin without a writ; in the 
 latter case the writ de proprietate probanda 
 issued at once on claim of property being 
 presented and was tried by inquest; if the 
 finding was for defendant, the sheriff forbore. 
 
 In replevin at common law the writ de 
 proprietate probanda did not issue until aft- 
 er return on a plurics writ of replevin and 
 the finding on it for defendant, being only an 
 inquest of office, did not prevent a new re- 
 plevin. 
 
 DE QUOTA LITIS (Lat). In Civil Law. 
 A contract by which one who has a claim 
 difficult to recover agrees with another to 
 give a part, for the purpose of obtaining his 
 services to recover the rest. 1 Duval, n. 201. 
 See Champerty. 
 
 DE RATIONABILI PARTE BONORUM 
 (Lat. of a reasonable part of the goods). A 
 writ, long since obsolete, to enable the widow 
 and children of a decedent to recover their 
 proper shares of his personal estate. 2 Bla. 
 Com. 492. The writ is said to be founded on 
 the customs of the counties, and not on the 
 common-law allowance. Fitzh. N. B. 122, L. 
 See Custom of London. 
 
 DE RATIONABILIBUS DIVISIS (Lat for 
 reasonable boundaries). A writ which lies to 
 determine the boundaries between the lands 
 of two proprietors which lie in different 
 towns. The writ is to be brought by one 
 against the other. Fitzh. N. B. 128, M; 3 
 Reeve, Hist. Eng. Law 48. 
 
 DE RECTO DE ADVOCATIONE (Lat. of 
 riurht of advowson; called, also,' le droit de 
 advocatione). A writ which lay to restore 
 the right of presentation to a benefice, for 
 him who had an advowson, to himself and 
 heirs in fee simple, if he was disturbed in 
 the presentation. Year B. 39 Hen. VI. 20 a; 
 Fitzh. N. B. 30, D. 
 
 DE REPARATIONE FACIENDA (Lat). 
 The name of a writ which lies by one ten- 
 ant in common against the other, to cause 
 him to aid in repairing the common prop- 
 erty. 8 B. & C. 269. 
 
 DE RETORNO HABENDO (Lat). The 
 name of a writ issued after a judgment has 
 been given in replevin that the defendant 
 should have a, return of the goods replevied. 
 
 The judgment for defendant at common 
 
 law is pro retorno liabendo. Plaintiff's 
 pledges are also so called. See Morr. Repl. ; 
 Replevin. 
 
 DE SALVA GUARDIA (Lat. of safeguard). 
 A writ to protect the persons of strangers 
 seeking their rights in English courts. Reg. 
 Orig. 26. 
 
 DE SCUTAGIO HABENDO (Lat. of hav- 
 ing scutage). A writ which lay in case a 
 man held lauds of the king by knight's serv- 
 ice, to which homage, fealty, and escuage 
 were appendant, to recover the services or 
 fee due in case the knight failed to accom- 
 pany the king to the war. It lay also for 
 the tenant in capite, who had paid his fee, 
 against his tenants. Fitzh. N. B. 83, C. 
 
 DE SECTA AD MOLENDINUM (Lat. of 
 suit to a mill). A writ which lieth to com- 
 pel one to continue his custom of grinding 
 at a mill. 3 Bla. Com. 235; Fitzh. N. B. 122, 
 M; 2 Reeve, Hist. Eng. Law 55. 
 
 DE SON TORT (Fr.). Of his own wrong. 
 This term is usually applied to a person who, 
 having no right to meddle with the affairs 
 or estate of a deceased person, yet under- 
 takes to do so, by acting as executor of the 
 deceased. See Executors and Administra- 
 tors. 
 
 DE SON TORT DEMESNE (Fr.). Of his 
 own wrong. See De Injuria. 
 
 DE SUPERONERATIONE PASTUR/E 
 
 (Lat. of surcharge of pasture). A writ lying 
 where one who had been previously implead- 
 ed in the county court was again impleaded 
 in the same court for surcharging common 
 of pasture, and the cause was removed to 
 Westminster Hall. Reg. Jur. 36 &. 
 
 DE TALLAGIO NON CONCEDENDO 
 
 (Lat. of not allowing talliage). The name 
 given to the statutes 25 and 34 Edw. I., re- 
 stricting the power of the king to grant talli- 
 age, Co. 2d Inst. 532; 2 Reeve, Hist. Eng. 
 Law 104. See Talliage. 
 
 DE UNA PARTE (Lat). A deed de una 
 parte is one where only one party grants, 
 gives, or binds himself to do a thing to an- 
 other. It differs from a deed inter partes 
 (q. v.). See Deed Poll. 
 
 DE UXORE RAPTA ET ABDUCTA (Lat 
 of a wife ravished and carried away). A 
 kind of writ of trespass. Fitzh. N. B. 89, O ; 
 3 Bla. Com. 139. 
 
 DE VENTRE INSPICIENDO (Lat. of in- 
 specting the womb). A writ 'to inspect the 
 body where a woman feigns to be pregnant, 
 to see wliether she is with child. It lies for 
 the heir presumptive to examine a widow 
 suspected to be feigning pregnancy in order 
 to enable a supposititious heir to obtain the 
 estate. 1 Bla. Com. 456 ; 2 Steph. Com. 287 ; 
 Cro. Eliz. 556; Cro. Jae. 685; 2 P. Wms. 693; 
 21 Viner, Abr. 547. There was a like proce- 
 dure in Rome in cases of divorce ; Voet Com. 
 25, 42.
 
 DE VENTRE INSPICIENDO 
 
 771 
 
 DEAD BODY 
 
 A jury of* 12 matrons was Impanelled to 
 decide whether she was quick with child ; if 
 so found, sentence was suspended; Archb. 
 Cr. Pr. 23d ed. 229. 
 
 It lay also where a woman sentenced to 
 death pleaded pregnancy'; 4 Bla. Com. 395. 
 This writ has been recognized in America; 
 
 2 Chandl. Am. Cr. Tr. 381. 
 
 DE VICINETO (Lat. from the neighbor- 
 hood). The sheriff was anciently directed 
 in some cases to summon a jury dc vUHneto; 
 
 3 Bla. Com. 3GO. 
 
 DE WARRANTIA CHART/E (Lat of war- 
 ranty of charter). This writ lieth properly 
 where a man doth enfeoff another by deed 
 and bindeth himself and heirs to warranty. 
 Now, it' the defendant be impleaded in an 
 assize, or in a writ of entry in the nature 
 of an assize, in which actions he cannot 
 vouch, then he shall have the writ against 
 the feoffor or his heirs who made such war- 
 ranty ; Fitzh. N. B. 134, D; Cowell ; Termes 
 de la Ley; 3 Reeve, Hist. Eng. Law 55. 
 Abolished by 3 & 4 Will. IV. c. 27. 
 
 DE WARRANTIA D I El. A writ which 
 lay for a party in the service of the king 
 who was required to appear in person on a 
 certain day, commanding the justices not 
 to record his default, the king certifying to 
 the fact of such service. Fitzh. N. B. 36. 
 
 DEACON. The lowest degree of holy or- 
 ders in the Church of England. 2 Steph. 
 Com. 660. 
 
 DEAD BODY. A corpse. 
 
 There is no right of property, in the or- 
 dinary sense of the word, in a dead human 
 body; Co. Inst. 202; 4 Bla. Com. 235; Meagh- 
 er v. Driscoll, 99 Mass. 281, 96 Am. Dec. 
 759; Pierce v. Proprietors of Swan Point 
 Cemetery, 10 R, I. 227, 14 Am. Rep. 667; 3 
 Edw. Ch. 155 ; 5 W. R. 318 ; 2 Wms. on Ex., 
 7th Am. ed. 166 n. ; but there are rights at- 
 tached to it which the law will protect; 10 
 Cent. L. J. 304; and for the health and pro- 
 tection of society, it is a rule of the common 
 law, and this has been confirmed by statutes 
 in civilized states and countries, that public 
 duties are imposed upon public officers, and 
 private duties upon the husband or wife and 
 the next of kin of the deceased, to protect 
 the body from violation and see that it is 
 properly interred, and to protect it after it is 
 interred ; 1 Witthaus & Becker's Med. Jur. 
 297. 
 
 It has been suggested that the right of 
 the living in their dead might be classified 
 with those rights, which arise out of toe 
 family relation; 5 Harv. L. Rev. 285; 13 id. 
 63; Larson v. Chase, 47 Minn. 307, 50 N. W. 
 238, 14 L. R. A. 85, 28 Am. St. Rep. .".70. 
 In Pierce v. Proprietors of Swan Point 
 etery, 10 R. I. 227, 14 Am. Rep. 667, it is 
 said there is a quasi property right. The 
 clear legal right of exemption from wrong- 
 ful acts is in itself the property. An in- 
 
 jury to such right need not include an injury 
 to physical property, or to or to 
 
 character, but is of itself sufficient to sup- 
 port an action; Koerber v. Patek, 123 Wis. 
 453, li »J N. W. 40, 68 L. R. 
 tors have a right to pos- it and it 
 
 is their duty to bury it; 2 Wins, on Ex. 7th 
 Am. ed. 165; Hapgood v. Houghton, lo Pick, 
 (Mass.) 154; Wynkoop v. Wynkoop, 
 293, 82 Am. Dec. 506; but this i 
 ferred to in a subsequent one in the same 
 court as not deciding what is stated in the 
 syllabus, which is characterized as "much 
 too broad and as an improvident generaliza- 
 tion" ; Pettigrew v. Pettlgrew, 207 Pa. 313, 
 56 Atl. 878, 64 L. R. A. 170, 'JJ Am. St. Bep. 
 795. 
 
 The right of the widow to control the 
 place of burial is also sustained In other 
 cases; O'DonneU v. Slack, 123 CaL 2 
 Pac. 906, 43 L. R, A. 388; Buchanan v. Bu- 
 chanan, 28 Misc. Rep. 261, 59 N. V. Supp. 
 810, which, while recognizing the right of 
 the widow, held that she could not maintain 
 replevin for the body against one who had 
 caused it to be properly buried; and where 
 the decedent did not in his lifetime live with 
 his wife and there was no executor or ad- 
 ministrator, the sister was held entitled to 
 control the burial. It was also held in 
 Louisville & N. R. Co. v. Wilson, 123 Ga. 62, 
 51 S. E. 21. :; Ann. Cas. 128, that the widow 
 has an interest in the unburied body of ber 
 deceased husband which the courts will rec- 
 ognize. The right to make te iry di- 
 rection concerning the disposal uf the body 
 has been conferred by statute in several 
 states; e. g. New York, Maine, Oklahoma, 
 and Minnesota. The question of the rigid of 
 disposal of the body is ably discussed by 
 Mr. R. S. Guernsey in 10 Cent. L. J. 303, 
 325, and he concludes upon the authorities 
 that in the absence of testamentary d 
 tion the right and duty of burial devolves 
 upon relatives "as follows: 1. Husband or 
 wife. 2. Children. 3. If none — (It Father. 
 (2) Mother. 4. Brothers and sisters. 5. Next 
 of kin according to the course of the com- 
 mon law, according to the law of descent of 
 personal property;" /'</. .".27. Probably the 
 rule may be fairly stated that there being 
 no husband or wife of the I. the 
 nearest of kin in order of right to adminis- 
 tration is charged with the duty of burial. 
 And to the same effect it is said: First, the 
 paramount right is in the surviving husband 
 or widow, and if the parties were living in 
 the normal relations of marriage, it will re- 
 quire a very strong ease to justify a court 
 in interfering with the wishes of the surviv- 
 or. Secondly, if there is no surviving hus- 
 band or wife, the right is in the next of kin 
 in the order of their relation to the decedent, 
 as, children of a proper age, parents, broth- 
 ers and sisters, or more distant kin, modi- 
 fied, it may be. by circumstances of special 
 intimacy or association with the decedent
 
 DEAD BODY 
 
 772 
 
 DEAD BODY 
 
 Thirdly, how far the desires of the decedent 
 should prevail against those of a surviving 
 husband or wife is an open question, but as 
 against remoter connections, such wishes, es- 
 pecially if strongly and recently expressed, 
 should usually prevail. Fourthly, with re- 
 gard to a re-interment in a different place, 
 the same rules should apply, but wilh a pre- 
 sumption against removal growing stronger 
 with the remoteness of connection with the 
 decedent and reserving always the right of 
 the court to require reasonable cause to be 
 shown for it; Pettigrew v. Pettigrew, 207 
 Pa. 313, 56 Atl. 878, 64 L. R. A. 179, 99 Am. 
 St. Rep. 795. 
 
 Where a deceased person had not lived 
 with his wife and there was no executor or 
 administrator, his sister was permitted to. 
 control his burial ; Kitchen v. Wilkinson, 26 
 Pa. Super. Ct 75. 
 
 The leaving unburied the corpse of a per- 
 son for whom the defendant is bound to pro- 
 vide Christian burial, as a wife or child, is 
 an indictable misdemeanor, if he is shown 
 to have been of ability to provide such 
 burial ; 2 Den. C. C. 325 ; or preventing a 
 dead body from being buried ; 2 Term 734 ; 
 4 East 460 ; 1 Russ. Cr. 415, n. ; or interring 
 one found in a river without first sending 
 for the coroner ; 1 Ld. Ken. 250 ; or to cast 
 one into a river; Kana van's Case, 1 Greenl. 
 (Me.) 226. And every householder in whose 
 house a dead body lies is bound by the com- 
 mon law, if he has the means to do so, to 
 inter the body decently ; and this principle 
 applies where a person dies in the house of 
 a parish or a union ; 12 A. & E. 773. The 
 expense for such burial may be paid out 
 of the effects of deceased; 3 Camp. 298. 
 
 It is the duty of the coroner after death 
 by violence to cause an autopsy to be made ; 
 the surgeon who makes it can recover from 
 the county for his labor; Allegheny County 
 v. Shaw, 34 Pa. 301; Board of Com'rs of 
 Bartholomew County v. Jameson, 86 Ind. 
 154. If the work be done with ordinary 
 care, he is not liable to the family for a 
 mutilation of the body, even though acting 
 without their consent; Young v. College of 
 Physicians & Surgeons, 81 Md. 358, 32 Atl. 
 177, 31 L. R. A. 540 ; and though he removes 
 and keeps in his possession by direction of 
 the coroner, portions of the body ; Palmer 
 v. Broder, 78 Wis. 483, 47 1ST. W. 744. Where 
 a rule of a board of health requires a cer- 
 tificate as to the cause of death before is- 
 suing a burial permit, an attending physi- 
 cian is not liable for performing an autopsy 
 without the family's consent; Meyers v. 
 Clarke, 122 Ky. 866, 90 S. W. 1049, 93 S. 
 W. 43, 5 L. R. A. (N. S.) 727; so where a 
 mere incision was made to ascertain the 
 cause of death, as authorized by the board 
 of health and a city ordinance; Rushing v. 
 Medical College, 4 Ga. App. 823, 62 S. E. 5G3. 
 
 The purchaser of land upon which is lo- 
 cated a burial ground may be enjoined from 
 
 removing bodies therefrom against the wish- 
 es of the relatives or next of kin of the de- 
 ceased. Every interment is a concession 
 of the privilege which cannot afterward be 
 repudiated, and the purchaser's title to the 
 ground is fettered with the right of burial ; 
 First Presbyterian Church v. Church, 2 
 Brewster (Pa.) 372. But the right of mu- 
 nicipal or state authorities, with the consent 
 of the owner of the burial lot or in the ex- 
 ecution of eminent domain, to remove dead 
 bodies from cemeteries is well settled ; Craig 
 v. Church, SS Pa. 42, 32 Am. Rep. 417; Ham- 
 ilton v. City of New Albany, 30 Ind. 482; 
 Page v. Symonds, 63 N. H. 17, 56 Am. Rep. 
 481. 
 
 The law of Indiana (2 R. S. p. 473) pro- 
 hibits the removal of a dead body without 
 the consent of a near relative or of the de- 
 ceased in his lifetime. It is held there that 
 the bodies of the dead belong to the surviv- 
 ing relations in the order of inheritance, as 
 property ; Bogert v. Indianapolis, 13 Ind. 
 134. The laws of Louisiana, California, Con- 
 necticut, Vermont, and Ohio, recognize the 
 interest of the relatives of a deceased person 
 in his body. 
 
 In 4 Bradf. Sur. (N. Y.) 502, a learned re- 
 port by S. B. Ruggles lays down these con- 
 clusions, substantially: 
 
 1. Neither a corpse nor its burial is sub- 
 ject to ecclesiastical cognizance. 
 
 2. The right to bury a corpse and pre- 
 serve it is a legal right. 
 
 3. Such right, in the absence of testamen- 
 tary disposition, is in the next of kin (so in 
 Bogert v. Indianapolis, 13 Ind. 138). 
 
 4. The right to protect the corpse includes 
 the right to preserve it by burial, to select 
 the place of sepulture, and to change it at 
 pleasure. 
 
 5. If the burial-place be taken for public 
 use, the next of kin must be indemnified for 
 removal and reinterring, etc. Approved by 
 the Sup. Ct. N. Y. (1S56). 
 
 The exhumation of the body of the deceas- 
 ed should be ordered, if at all, only on a 
 strong showing that, without its examina- 
 tion, a fraud is likely to be accomplished, as 
 where an insurance company has exhausted 
 every other legal means of exposing a fraud ; 
 Grangers' Life Ins. Co. v. Brown, 57 Miss. 
 308, 34 Am. Rep. 446. But the right of in- 
 terment and the right to disinter are subor- 
 dinate to public health, and disinterment 
 may be compelled by public authorities 
 whenever conditions become such as that the 
 public health is threatened ; or where an 
 examination may disclose facts which prove 
 an accused person innocent of a crime ; Gray 
 v. State, 55 Tex. Cr. R. 90, 114 S. W. 635, 22 
 L. R. A. (N. S.) 513. 
 
 In a murder trial, the court may, at the 
 prisoner's instance, order an exhumation 
 and autopsy, if in the interest of justice; 
 Gray v. State, 55 Tex. Cr. R. 90, 114 S. W. 
 635, 22 L. R. A. (N. S.) 513; such order was
 
 DEAD BODY 
 
 773 
 
 DEAD BODY 
 
 refused in Moss v. State, 152 Ala. 30, 44 
 South. 5!i8, because it appeared that two 
 reputable physicians, available at tbe trial, 
 had examined the body before burial. There 
 is said to be no law requiring a court, at 
 the prisoner's request, but at the expense 
 of the state, to order exbuination; Salisbury 
 v. Com., 79 Ky. 425. In Com. v. Grether, 
 204 Pa. 203, 53 Ail. 7.",::, the court refused 
 to set aside a conviction of murder in tbe 
 first degree because the district attorney and 
 not the coroner had caused the body to be 
 exhumed. In an insurance case, exhuma- 
 tion was ordered to obtain evidence bearing 
 on tbe question of suicide; the marshal was 
 directed to exhume the body and the court 
 appointed a pathologist and a chemist to 
 make the examination; it was held also that 
 such order could only be made in a case 
 where the widow was a party; Mutual Life 
 Ins. Co. of New York v. Griesa, 15G Fed. 
 398. The right to make the order in an in- 
 surance case was recognized in People v. 
 Fitzgerald, 105 N. Y. 146. 11 N. E. 378, 59 
 Am. Rep. 483; Grangers' Ins. Co. v. Brown, 
 57 Miss. 308, 34 Am. Rep. 446; but in the 
 latter case the order was refused on the 
 ground of delay ; see Gray v. State, 55 Tex. 
 Cr. R. 90, 114 S. W. 635, 22 L. R. A. (N. S.) 
 513. 
 
 To disinter a dead body, without lawful 
 authority, even for the purpose of dissec- 
 tion, is a misdemeanor, for which the of- 
 fender may be indicted at common law ; 
 1 D. & R. 1.3; State v. McClure, 1 Blackf. 
 (Ind.) 328; Com. v. Slack, 19 Pick. (Mass.) 
 304; Kanavan's Case, 1 Greenl. (Me.) 226. 
 This offence is punished by statute in most 
 of the states: see 1 Russ. 414, n. A; as is 
 its unauthorized sale for gain and profit; 
 Thompson v. State, 105 Tenn. 177, 58 s. w. 
 213, 51 L. R. A. 8S3, 80 Am. St. Rep. 875. 
 To seize a dead body on pretence of arrest- 
 ing for debt is contra bonos mores; 4 East 
 460. There can be no larceny of a dead 
 body; 2 East, PL Cr. 652; 12 Co. 106; but 
 may be of the clothes or shroud upon it ; 
 Wonson v. Sayward, 13 Pick. (Mass.) 402, 
 23 Am. Dec. 691; 12 Co. 113; Co. 3d Inst. 
 110; Kanavan's Case, 1 Greenl. (Me.) 2l'<;; 
 State v. Doepke. 6S Mo. 208, 30 Am. Rep. 785. 
 
 After the right of burial has once been 
 exercised by the person charged with the 
 duty of burial, or where such person has 
 consented to the burial by another person, 
 no right to the corpse remains except to 
 protect it from unlawful interference; Peters 
 v. Peters, 43 N. J. Eq. 140, 10 Atl. 742 ; Low- 
 rie v. Plitt, 11 Phila. (l'a.i 303; 10 B. & S. 
 29S. But see Weld v. Walker, 130 Mass. 
 422. 39 Am. Rep. 465. It has been held 
 that it then becomes a part of the ground to 
 Which it has been committed; Meagher v. 
 Driscoll, 99 Mass. 281, 96 Am. Dec. 759; 
 Wilson v. Read, 74 N. H. 322, 6S Atl. 37. 16 
 L. R. A. (X. S.) 332, 124 Am. St Rep. !»7:: ; 
 contra, Cohen v. Congregation Shearith Is- 
 
 rael in City of New York, 85 App. Div. 65, 
 82 N. Y. Supp. 918. In England, where a 
 son had removed, without leave, the body 
 of his mother from the burial-ground of a 
 congregation of Protestant dissentei 
 bury it in church ground, it was held that 
 he was guilty of a misdemeanor at common 
 law, and that it was no defence that his 
 motives were pious and laudable; 1 J- 
 & B. 160, 7 Cox C. O. 214. 
 
 A widow who allows her husband to be 
 buried in a certain place may not disturb 
 his remains; her right to the body of her 
 deceased husband being terminated by the 
 burial, and any further disposition of such 
 body belonging thereafter exclusively to his 
 of kin; Wynkoop v. Wynkoop, 42 Pa. 
 293, 82 Am. Dec. 506; but see a criticism of 
 that case supra. Where one in accord- 
 ance with his own wishes was buried in his 
 own lot by his widow, and she removed his 
 remains, she was ordered, in equity to re- 
 store them; Pierce v. Proprietors of Swan 
 Point Cemetery, 10 R. I. 227, 14 Am. Rep. 
 672. and note. A son is not allowed to re- 
 move his father's remains against his moth- 
 er's wishes; Johnston v. Marinus, IS Abb. 
 N. C. (X. Y.) 78. After interment, the con- 
 trol over a dead body is in the next of kin 
 living. But if they differ about its disposal, 
 equity will not help its removal. Where a 
 corpse has been properly buried, it is doubt- 
 ful if even the next of kin can remove it: 
 Lowry v. Plitt, 16 Am. L. Reg. 1">. and note. 
 Where a wife allowed her husband's re- 
 mains to be placed temporarily in a vault in 
 New York, and his father removed them to 
 his own vault, held, that, in the absence of 
 a request by the deceased husband iu his 
 lifetime, the widow might control tbe place 
 of burial, but that she could not, under the 
 circumstances, disturb their repose and take 
 them to Kentucky ; Southworth v. South- 
 worth, in the New Y'ork Supreme Court, 
 1881, not reported, referred to in an article 
 in 17 Can. L. J. 1S4. The husband having in 
 a time of great distress of mind after bis 
 wife's death consented to her burial in a lot 
 of the husbands of two of her sisters, and 
 sought to remove her body to the lot owned 
 by himself and his co-heirs, the defendants, 
 being the lot owners, refused permission, and 
 on application for injunction to restrain 
 their interference, it was held that he had 
 never consented to her burial in the lot as 
 a final resting place, and that the defend- 
 ants might be required by a court of chan- 
 cery to permit the removal. Chief Ji 
 Cray said: Neither the husband nor the 
 next of kin. have, strictly speaking, any 
 right of property in a dead body ; but con- 
 ies between them as to the place of 
 its burial are, in this country where there 
 are no ecclesiastical courts, within the juris- 
 of a court of equity; Weld v. Walker, 
 13ii Mass 423. 33*Am. Rep. 405: Meagher 
 v. Driscoll, 99 Mass. 281, 90 Am. Dec. 759;
 
 DEAD BODY 
 
 774 
 
 DEAD MAN'S PART 
 
 2 Bla. Com. 429; Snyder v. Snyder, 60 How. 
 IT. (N. Y.) 36S. 
 
 Where a widow ordered a funeral of her 
 husband, it was held that she was liable 
 for the expense, although she was an infant 
 at the time, the court holding that the ex- 
 penses fell under the head of necessaries, 
 for which infants' estates are liable; 13 M. 
 & \V. 252. 
 
 See Bingh. Christ. Antiq. ; Tyler, Am. Ecel. 
 Law; Burton, The Burial Question; Cooley, 
 Torts 280; The Law of Burials, Anon.; 1 
 Witthaus & Becker, Med. Jur. 297; note in 
 Johnston v. Marinus, 18 Abb. N. C. (N. Y,) 
 75, containing a list of law literature on 
 this and kindred topics; notes to Moak's 
 Eng. Rep. 656 ; Cemetery ; Cremation ; 
 Measure of Damages; Funeral Expenses. 
 
 DEAD-BORN. A dead-born child is to be 
 considered as if it had never been conceived 
 or born ; in other words, it is presumed it 
 never had life, it being a maxim of the com- 
 mon law that mortuus ewitus non est exitus 
 (a dead birth is no birth). Co. Litt. 29 6. 
 See Marsellis v. Thalhimer, 2 Paige, ,Ch. 
 (N. Y.) 35, 21 Am. Dec. 66; 4 Ves. 334. 
 
 This is also the doctrine of the civil law, 
 Dig. 50. 16. 129. Non nasci, et natum mori, 
 paria sunt (not to be born, and to be born 
 dead, are equivalent). La. Civ. Code, art. 
 28; Domat, liv. prel. t. 2, s. 1, nn. 4, 6. 
 
 DEAD FREIGHT. The amount paid by a 
 charterer for that part of the vessel's ca- 
 pacity which he does not occupy although 
 he has contracted for it. 
 
 When the charterer of a vessel has ship- 
 ped part of the goods on board, and is not 
 ready to ship the remainder, the master, un- 
 less restrained by his special contract, may 
 take other goods on board, and the amount 
 which is not supplied, required to complete 
 the cargo, is considered dead freight. The 
 dead freight is to be calculated according to 
 the actual capacity of the vessel. 3 Chit. 
 Com. Law 399; 2 Stark. 450; McCull. Com. 
 Die. See L. R. 6 Q. B. 52S. See Freight. 
 
 DEAD LETTER. Acts that have become 
 obsolete by long disuse are often so called. 
 See Obsolete. 
 
 DEAD LETTERS. Letters transmitted 
 through the mails according to direction, and 
 remaining for a specified time uncalled for 
 by the persons addressed, are called dead 
 letters. 
 
 DEAD MAN'S PART. That portion of the 
 personal estate of a person deceased which 
 by the custom of London became the ad- 
 ministrator's. 
 
 If the decedent left wife and children, this 
 was one-third of the residue after deducting 
 the widow's chamber ; if only a widow, or 
 only children, it was one-half; 1 P. Wms. 
 341; Salk. 246; if neither widow nor chil- 
 dren, it was the whole; 2 Show. 175. This 
 provision was repealed by the statute 1 Jac. 
 
 II, c. 17, and the same made subject to the 
 statute of distributions. 2 Bla. Com. 518. 
 See Customs of London; Legitime. 
 
 DEAD'S PART. In Scotch Law. The part 
 remaining over beyond the shares secured to 
 the widow and children by law. Of this the 
 .testator had the unqualified disposal. Stair, 
 Inst. lib. iii. tit. 4, § 24; Bell Diet.; Pater- 
 son, Comp. §§ 674, 848, 902. It obtained in 
 the province of York till 1692. See Legitime. 
 
 DEAD-PLEDGE. A mortgage; mortuum 
 
 vadium. , 
 
 DEADLY WEAPON. See Dangerous 
 Weapon; Arms. 
 
 DEAF AND DUMB. A person deaf and 
 dumb is doli capax ; but with such persons 
 who have not been educated, and who can- 
 not communicate their ideas in writing, a 
 difficulty sometimes arises on the trial. 
 
 A case occurred of a woman deaf and 
 dumb who was charged with a crime. She 
 was brought to the bar, and the indictment 
 was then read to her ; and the question, in 
 the usual form, was put, Guilty or not guilty? 
 The counsel for the prisoner then rose, and 
 stated that he could not allow his client to 
 plead to the indictment until it was explain- 
 ed to her that she was at liberty to plead 
 guilty or not guilty. This was attempted 
 to be done, but was found impossible, and 
 she was discharged from the bar simpliciter. 
 Case of Jean Campbell, 1 Wh. & St. Med. 
 Jur. § 468. When the party indicted is deaf 
 and dumb, he may, if he understands the 
 use of signs, be arraigned and the meaning 
 of the clerk who addresses him conveyed to 
 him by signs, and his signs in reply explained 
 to the court, so as to justify his trial and 
 the infliction of punishment; Com. v. Hill, 14 
 Mass. 207; 1 Leach 102; 1 Chit. Cr. L. 417. 
 See State v. Harris, 53 N. C. 136, 78 Am. 
 Dec. 272. It was formerly said that persons 
 deaf and dumb were presumably idiots; 1 
 Hale, P. C. 34; but that doctrine was formu- 
 lated at a period when the subject of the 
 education of such unfortunate persons had 
 received little or no attention. One deaf 
 and dumb is not consequently insane, nor is 
 he presumed to be an idiot ; Alexier v. Matz- 
 ke, 151 Mich. 36, 115 N. W. 251, 123 Am. St. 
 Rep. 255, 14 Ann. Cas. 52 ; and his capacity 
 appearing, he may be tried; 1 Bish. Cr. L. § 
 395; the ordinary presumption of sound mind 
 and criminal responsibility, as was said by 
 Gilpin, C. J., in a case of homicide by a 
 person so afflicted, "does not apply to a deaf 
 and dumb person when charged with the 
 commission of a crime. On the contrary, the 
 legal presumption is then directly reversed ; 
 for in such case it is incumbent upon the 
 prosecution to prove to the satisfaction of 
 the jury that the accused had capacity and 
 reason sufficient to enable him to distinguish 
 between right and wrong as to the act at 
 the time when it was committed by him,
 
 DEAF AND DUMB 
 
 775 
 
 DEAN AND CHAPTER 
 
 and had a knowledge and consciousness that 
 the act he was doing was wrong and crim- 
 inal and would subject him to punishment; 
 1 Houst. Cr. Rep. 29l In that case the 
 prisoner was acquitted "under circumstances 
 wherein plainly they would not have done it 
 if he had been endowed with hearing and 
 speech;" 1 Bish. Cr. L. § 395. 
 
 A person deaf and dumb may be examined 
 as a witness, provided he can be sworn; 
 that is, if he is capable of understanding 
 the terms of the outb, and assents to it, and 
 if, after he is sworn, he can convey bis ideas, 
 with or without an interpreter, to the court 
 and jury ; PhilL Ev. 14. if he is able to com- 
 municate his ideas perfectly by writing, he 
 will be required to adopt that as the more 
 satisfactory method; but, if his knowledge 
 of that method is imperfect, he will be per- 
 mitted to testify by means of signs; 1 Greeul. 
 Ev. § 306; Tayl. Ev. 1170. 
 
 Such person may execute a deed; 1 II. L. 
 Cas. 724; Barnett v. Barnett, 54 X. C. 221; 
 but it is said in an old case that be is prima 
 facie unable to make a contract or deed; 
 Brown v. Brown, 3 Conn. 299, S Am. Dec. 
 187; in Culley v. Jones, 164 Ind. 168, 73 N. 
 E. 94, the question of capacity was left to 
 the jury. See a note in 14 Ann. Cas. 52. 
 
 Where a defendant is deaf and dumb and 
 cannot hear the testimony of the witnesses 
 of the state, the presiding judge should per- 
 mit some reasonable mode of having their 
 evidence communicated to him ; Kalph v. 
 State, 124 Ga. 81, 52 S. E. 298, 2 L. R. A. 
 (N. S.) 509; where it was said that in such 
 case opportunity should be given for the 
 communication to the defendant of the tes- 
 timony, but the exact method of doing it 
 must be left to the discretion of the court. 
 
 A deaf person was convicted of murder. 
 Held due process of law; Felts v. Murphy, 
 201 U. S. 123, 26 Sup. Ct. 366, 50 L. Ed. 6S9. 
 
 DEAF, DUMB, AND BLIND. See Idiot. 
 
 DEAFF0REST, DISAFFOREST. In Old 
 English Law. To discharge from being for- 
 est. To free from forest laws. 
 
 DEALER. A dealer in the popular, and 
 therefore in the statutory sense of the word, 
 is not one who buys to keep, or makes to 
 sell, but one who buys to sell again. Norrls 
 v. Com., 27 Pa. 494 ; Com. v. Campbell, 33 
 Pa. 385. 
 
 DEAN. An ecclesiastical officer, who de- 
 rives his name from the fact that he presides 
 over ten canons, or prebendaries, at least. 
 He is addressed as Very Reverend. 
 
 There are several kinds of deans, namely: 
 deans of chapters; deans of peculiars; rural 
 deans; deans in the colleges; honorary deans; 
 deans of provinces. 
 
 DEAN AND CHAPTER. In Ecclesiastical 
 Law. The council of a bishop, to assist him 
 with tneir advice in the religious and also 
 in the temporal affairs of the see. 3 Co. 75; 
 
 1 Bla. Com. 382; Co. Litt 103, 300; T( 
 de la Ley; - Bum, E© L Law 120. 
 
 DEAN OF THE ARCHES. The presiding 
 judge of the court of the arches. He was 
 a assistant Judge in the court of ad- 
 miralty. 1 Kent 371; 3 Steph. Com. 7L'7. 
 See Doctors Commons; Coubt of the 
 As* B 
 
 DEATH. The cessation of life, 
 ing to exist. 
 
 Civil death is the state of a person who, 
 though possessing natural life, has l< 
 bis civil rights, and as to them, is con.-, 
 as dead. 
 
 A person convicted and attainted of felony and 
 sentenced to the state prison for life is, In the state 
 of New York, in consequence of the act of 29th of 
 March, 17S9, and by virtue of the conviction and 
 sentence of imprisonment for life, to be considered 
 as civilly dead; Platner v. Sherwood, 6 Johns. Ch. 
 (N. V.) US; Troup v. Wood, 4 Johns. Ch. (X. Y.) 
 228, 2C0. And a similar doctrine anciently prevailed 
 in other cases at common law in England. See Co. 
 Litt. 133 ; 1 Sharsw. Bla. Com. 132, n. 
 
 Natural death is the cessation of life. 
 It is also used to denote a death which occurs by 
 the unassisted operation of natural causes, as dis- 
 tinguished from a violent death, or one caused or 
 accelerated by the interference of human agency. 
 
 In Medical Jurisprudence. The cause, phe- 
 nomena, and evidence of violent death are 
 of importance. 
 
 An ingenious theory as to the cause of death has 
 been brought forward by Philip, in his work on 
 Sleep and Death, in which he claims that to the 
 highest form of life three orders of functions are 
 necessary,— viz. : the muscular, nervous, and sen- 
 sorial ; that of these the two former are independ- 
 ent of the latter, and continue in action for a while 
 after its cessation ; that they might thus continue 
 always, but for the fact that they are dependent on 
 the process of respiration ; that this process is a 
 voluntary act, depending upon the will, and that 
 t"his latter is embraced in the sensorial function. In 
 this view, death is the suspension or removal of the 
 sensorial function, and that leads to the suspension 
 of the others through the cessation of respiration. 
 Philip, Sleep & D. ; Dean, Med. Jur. 413 et seq. 
 
 Its phenomena, rjr signs and indications. 
 Real is distinguishable from apparent death 
 by the absence of the heart-beats and res- 
 piration. These conditions are, however, 
 not always easy to determine positively 
 when the following tests may be applied: — 
 1. Temperature of body the same as the sur- 
 rounding air. -. Intermittent shocks of elec- 
 tricity at different tensions give no indica- 
 tions of muscular irritability. .":. Movi 
 of the joints of the extremities and of the 
 jaw showing more or less rigor-mortis. 4. 
 A bright needle plunged into the muscles and 
 left there showing no signs of oxidation on 
 withdrawal (Cloquet's test). 5. The 
 ing of a vein showing that the blood v. 
 are empty, or that in the veins of dependent 
 parts of the body the blood has coagulated. 
 6. The subcutaneous injection of ammonia 
 causing a dirty brown stain (Monte Verde's 
 7. A fillet applied to the arm caus- 
 ing no filling of the veins on the distal side 
 of the fillet (Richardson's test). 8. "Diaph-
 
 DEATH 
 
 776 
 
 DEATH 
 
 anous test" ; after death there is an absence 
 of the translucence seen in the living when 
 the hand is held before a strong light with 
 tbe fingers extended and in contact, i). "Eye 
 test"; after death there is loss of pupillary 
 reaction to light and to mydriatics, and there 
 is also loss of corneal transparency ; H. P. 
 Loomis in Witthaus & Becker, Med. Jur. 
 
 Its evidence when produced by violence. 
 This involves the inquiry as to the cause of 
 death in all cases of the finding of bodies 
 divested of life through unknown agencies. 
 It seeks to gather all the evidence that can 
 be furnished by the body and surrounding 
 circumstances bearing upon this difficult 
 and at best doubtful subject. It more im- 
 mediately concerns the duties of the coroner, 
 but is liable to come up subsequently for a 
 more thorough and searching investigation. 
 As this is a subject of great, general, and 
 growing interest, no apology is deemed nec- 
 essary for presenting briefly some of the 
 points to which inquiry should be directed, 
 together with a reference to authorities 
 where the doctrines are more thoroughly dis- 
 cussed. 
 
 The first point for determination is, wheth- 
 er the death was the act of God or the result 
 of violence. Sudden death is generally pro- 
 duced by a powerful invasion of the living 
 forces, that develop themselves in the heart, 
 brain, or lungs — the first being called syn- 
 cope, the second apoplexy, and the third as- 
 phyxia. Dean, Med. Jur. 426. 
 
 The last two are the most important to be 
 understood in connection with the subject 
 of persons found dead. 
 
 In death from apoplexy, the sudden inva- 
 sion of the brain by effused blood destroys 
 innervation, by which the circulation is ar- 
 rested. Death from apoplexy is disclosed by 
 the appearances revealed by dissection, par- 
 ticularly in the brain. 
 
 Death by asphyxia is still more important 
 to be understood. It is limited to cases 
 where the heart's action is made to cease 
 through the interruption of the respiration. 
 It is accomplished by all the possible modes 
 of excluding atmospheric air from the lungs. 
 The appearances in the body indicating 
 death from asphyxia are, violet discolora- 
 tions, eyes prominent, firm, and brilliant, ca- 
 daveric rigidity early and well marked, ve- 
 nous system of the brain full of blood, lungs 
 distended with thick dark-colored blood, 
 liver, spleen, and kidneys gorged, right cavi- 
 ties of the heart distended, left almost empty. 
 
 Many indications as to whether the death 
 is the act of God or the result of violence 
 may be gathered from the position and cir- 
 cumstances in which the body is found. As 
 thorough an examination as possible should 
 be first made of the body before changing 
 its position or that of any of the limbs, or 
 varying in any respect its relations with sur- 
 rounding bodies. This is more necessary 
 if the death has been apparently caused by 
 
 wounds. Then the wounds require a special 
 examination before any change is made in 
 position, in order from their nature, char- 
 acter, form, and appearance to determine 
 the instrument by which they were inflict- 
 ed, and also their agency in causing the 
 death. Their relations with external objects 
 may indicate the direction from which they 
 were dealt, and, if incised, their extent, 
 depth, vessels severed, and hemorrhage pro- 
 duced may be conclusive as to the cause of 
 death. 
 
 A thorough examination should be made 
 of the clothes worn by the deceased, and any 
 parts torn or presenting any unusual ap- 
 pearance should be carefully noted. A list 
 should be made of all articles found on the 
 body, and of their state and condition. The 
 body itself should undergo a very careful 
 examination. This should have reference 
 to the color of the skin, the temperature of 
 the body, the existence and extent of the 
 cadaveric rigidity of the muscular system, 
 the state of the eyes and of the sphincter 
 muscles, noting at the same time whatever 
 swellings, ecchymoses, or livid, black, or 
 yellow spots, wounds, ulcers, contusions, 
 fractures, or luxations, may be present. The 
 fluids that have exuded from the nose, 
 mouth, ears, sexual organs, etc., should be 
 carefully examined : and when the deceased 
 is a female, it will be proper to examine the 
 sexual organs with care, with a view of 
 ascertaining whether before death the crime 
 of rape had or had not been committed. 
 
 Another point to which the attention 
 should be directed is, the state of the body 
 in reference to the extent and amount of 
 decomposition that may have taken place 
 in it, with the view of determining when 
 the death took place. This is sometimes im- 
 portant to identify the murderer. The period 
 after death at which putrefaction supervenes 
 became a subject of judicial examination in 
 Desha's case, reported in Dean, Med. Jur. 
 423 et seq., and more fully in 2 Beck, Med. 
 Jur. 44 et seq. Another interesting inquiry, 
 where persons are found drowned, is pre- 
 sented in the inquiry as to the existence of 
 adipocere, a compound of a yellowish-white 
 color, consisting of calcareous or ammoni- 
 acai soap, which is formed in bodies immers- 
 ed in water in from eight weeks to three 
 years from the cessation of life. Tayl. Med. 
 Jur., Hartsh. ed. 542; 1 Ham. Leg. Med. 104. 
 
 Another point towards which it is proper 
 to direct examination regards the situation 
 and condition of the place where the body is 
 found, with the view of determining two 
 facts: First, whether it be a case of homi- 
 cide, suicide, or visitation of God ; and sec- 
 ond, whether, if one of homicide, the murder 
 occurred there or at some other place, the 
 body having been brought there and left 
 The points to be noted here are whether the 
 ground appears to have been disturbed from 
 its natural condition ; whether there are any,
 
 DEATH 
 
 777 
 
 DEATH 
 
 and what, indications of a struggle; wheth- 
 er there are any marks of footsteps, and, if 
 any, their size, number, the direction to 
 which they lead, and whence they came; 
 whether any traces of blond or hair can be 
 found: and whether any, or what, Instru- 
 ments <>r weapons, which could have • 
 death, are found In the vicinity; and all such 
 instruments should be carefully preserved, 
 BO thai they may be identified. Dean, Med. 
 Jin-. 257; 2 Beck, .Med. Jur. 107, nn. 136, 250. 
 
 As the decision of the question relating to 
 the cause of death is often Important and 
 difficult to determine, it may he proper to no- 
 tice some of its signs and indications in a 
 few Of the must prominent cases where it 
 is induced by violence. 
 
 Death by drowning is caused by asphyxia 
 from suffocation, by nervous or syncopal 
 asphyxia, or by asphyxia from cerebral con- 
 gestion. 
 
 In the first, besides other indications of 
 asphyxia, the face is pale or violet, a frothy 
 foam at the mouth, froth in the larynx, tra- 
 chea, and bronchi, water in the trachea and. 
 sometimes, in the ramifications of the bron- 
 chi, and also in the stomach. In the second, 
 the lace and skin are pale, the trachea emp- 
 ty, lungs and brain natural, no water in 
 the stomach. In the third, the usual indi- 
 cations of death by apoplexy are found on 
 examination of the brain. See 1 Ham. Leg. 
 Med. 120. 
 
 Death by hanging is produced by asphyxia, 
 suspending respiration by compressing the 
 larynx, by apoplexy, pressing upon the veins 
 and preventing the return of blood from 
 the head, by fracture of the cervical verte- 
 brae, laceration of trachea or larynx, or rup- 
 ture of the ligaments of the neck, or by com- 
 pressing the nerves of the neck. The signs 
 and indications depend upon the cause of 
 death. Among these are, face livid and 
 swollen, lips distorted, eyelids swollen, eyes 
 red and projecting, tongue enlarged, livid, 
 compressed, froth about the lips and nos- 
 trils, a deep ecchymosed mark of the cord 
 about the neck, sometimes ecchymosed patch- 
 es on different parts of the body. Angers con- 
 tracted or clenched. 
 
 Death by strangulation presents much the 
 same appearances, the mark of the cord be- 
 Ihg lower down on the neck, more horizon- 
 tal, and plainer and more distinctly ecchy- 
 mosed. 
 
 Death by cold leaves few traces in the sys- 
 tem. Pale surface, general congestion of 
 internal organs, sometimes effused serum 
 in the ventricles of the brain. 
 
 Death by burning may show the usual 
 signs consequent upon exposure to greal 
 heat, redness, blistering, charring. The un- 
 affected part of the body is usually pale. 
 The extent of the body surface burnt, not 
 the degree of burning, determines death. 
 
 Death by lightning usually exhibits a con- 
 
 tused or lacerat' 1 where the electric 
 
 fluid entered and ; 
 
 an extensive ecchymosis app 
 
 Death by starvation pr< 
 emaciation 1 
 projecting; face pa 
 and open; skin, mouth, and fa 
 ch and Intestines 1 
 and diet tided ; bo 
 odor; heart, lungs, and lar| 
 lapsed; early commencement of the putre- 
 factive process. 
 
 These and all other qu< 
 persons found dead will be found ful J 
 i in works on medical jurispn: 
 
 The Legal Consequences. Persons who 
 have been once shewn to have been in lif<- 
 are always presumed thus to continue until 
 the contrary Is shown; so that the burden 
 is on the party asserting the death to make 
 proof of it; 2 East 312; 2 Rolle 4ttL But 
 proof of a long continued absence unheard 
 from and unexplained will lay a foundation 
 for a i m of death; Butrick v. Tilton, 
 
 155 Mass. 461, 28 X. B. 1088; Hank of Louis- 
 ville v. P.oard of Trustees of Public Schools. 
 83 Ky. 219, 5 S. W. 735. Various periods 
 of time are found in the adjudged ca 
 warrant such presumption. It was held to 
 arise after twenty-seven years; 3 Bro. 
 510; twenty years, sixteen years: ." 
 Marden v. Boston, 155 Mass. 359, 29 X. 1." 
 5SS; fourteen years; Miller v. Beates, 3 S. 
 & R. (Pa.) 490, 8 Am. Dec 651; twelve ; 
 King v. Paddock, 18 Johns. -X. V.i 141; 
 eleven years; Baden v. McKenny, 7 Id 
 (D. C.) -G8. The general rule, as now un- 
 derstood, is that the presumption of the 
 duration of life ceases at the expirat: 
 seven years from the time when the 1 
 was last known to be living; and after the 
 lapse of that period there is a presumption 
 of death; Smith v. Knowlton, 11 X. 11. 197; 
 Clarke's Ex'rs v. Cantield. 15 X. J. Eq. 119; 
 Eagle v. Emmet, 4 Bradf. Sur. (N. V.i 117. 
 Chamb. .Best Ev. 304, note, collecting the 
 cases: Frauds V, Francis. 180 Pa. 844, .".7 
 Atl. 120, 57 Am. St. Q. B 
 
 510; 1 GreenL Ev. § 41; 5 B. & Ad. sti: 
 Ilen.iorsi.ii v. Bonar, 11 s. \v. 809, 11 Ky. 
 L. Rep. 219; French v. McGinnls, 68 Tex. 19, 
 !) S. W. 323. In most of the states the sub- 
 jecl Is regulated by statute, it is held also 
 that there must be diligent inquiry among 
 those who would probably hear from SUCh 
 absentee, to raise this presumption; M 
 Woodmen of America v. Gerdom, ~- Kan. 
 391, 82 Pac. 1100, 2 L. R, A. (X- S.) S09 ; 
 Wentworth v. Wentworth, 71 Me. 74; In 
 re Morrison's Estat , 155, 38 AtL 
 
 895; in re Board of Education of X. Y.. 
 17;; N. Y. 321, 66 X. E. IL See v 
 Woodmen of America v. Gerdom. 72 Kan. 
 391, 82 Pac. 1100, 2 L. R. A. | X. S.) sop, and 
 cases cited. In In re Freeman's Estate, 18 
 Pa. Dist. R. 104, it was said that a pre-
 
 DEATH 
 
 778 
 
 DEATH 
 
 sumption of death in consonance with the 
 English rule arises at the end of an un- 
 explained absence of seven years, but con- 
 trary to the English rule, a counter-presump- 
 tion also arises of a continuance of life dur- 
 ing and up to the very end of that period, 
 subject to be modified by proof of the pres- 
 ence of imminent peril which menaced the 
 life of the absent one and probably termi- 
 nated it within the period. 
 
 There are cases, however, where a pre- 
 sumption of death may be raised from even 
 a shorter absence; Waite v. Coaracy, 45 
 Minn. 159, 47 N. W. 537; Cambrelleng v. 
 Purton, 125 N. Y. 610, 26 N. E. 907 ; Fidelity 
 Mut. Life Assn. v. Mettler, 1S5 U. S. 308, 
 22 Sup. Ct. 662, 46 L. Ed. 922; and while 
 seven years is the period in which the pre- 
 sumption of continued life ceases, yet this 
 period may be shortened by proof of such 
 facts and circumstances as, submitted to 
 the test of experience, would produce a con- 
 viction of death within a shorter period; 
 Northwestern Mut. Life Ins. Co. v. Stevens, 
 71 Fed. 258, 18 C. C. A. 107 ; Davie v. Briggs, 
 97 U. S. 628, 24 L. Ed. 1086; Hyde Park v. 
 Canton, 130 Mass. 505; Cox v. Ellsworth, 18 
 Neb. 664, 26 N. W. 460, 53 Am. Rep. 827. 
 
 Though there is controversy on the point, 
 the better opinion is that there is no pre- 
 sumption as to the time of death; Davie v. 
 Briggs, 97 U. S. 628, 24 L. Ed. 1086; Chamb. 
 Best Ev. 305; 2 Brett, Com. 941; 2 M. & W. 
 894; and the vmis is on the person whose 
 case requires proof of death at a particular 
 period ; Howard v. State, 75 Ala. 27; White- 
 ley v. Assurance Society, 72 Wis. 170, 39 
 N. W. 369; Spencer v. Roper, 35 N. C. 333; 
 8 U. C. Q. B. 291. It seems that such contin- 
 ued absence for seven years from the particu- 
 lar state of his residence, without showing an 
 absence from the U. S., is sufficient ; Newman 
 v. Jenkins, 10 Pick. (Mass.) 515; Innis v. 
 Campbell, 1 Rawle (Pa.) 373; Spurr v. Trim- 
 ble, 1 A. K. Marsh. (Ky.) 278; Wambaugh v. 
 Schenk, 2 N. J. L. 229; Woods v. Woods' 
 Adm'rs, 2 Bay (S. C.) 476; and to establish 
 the presumption of death, the last known 
 place of residence is the place to look for 
 the person; Morrison's Estate, 183 Pa. 155, 
 38 Atl. 895; but the statutory presumption 
 of the death of a person will not be received 
 until all reasonable doubt of his death, at 
 a given time, is removed; Smith v. Combs, 
 49 N. J. Eq. 420, 24 Atl. 9. There are cases, 
 however, in which an absence of seven years 
 will not raise a presumption of death with- 
 out issue, as where it is probable that the 
 failure to communicate with friends is • in- 
 tentional; In re Taylor, 66 Hun 626, 20 N. 
 Y. Supp. 960; Doe v. Stockley, 6 Houst. 
 (Del.) 447, where the court refused to in- 
 struct the jury that there was a presump- 
 tion of the death of an entire family after 
 an absence of forty-five or fifty years. And 
 the statutory presumption of death after 
 seven years does not apply to children of 
 
 tender years incapable of voluntary absence 
 or concealment ; Mauley v. Pattison, 73 Miss. 
 417, 19 South. 236, 55 Am. St. Rep. 543. As 
 to this presumption generally, see 8 Eng. Rui. 
 Cas. 512. 
 
 The common-law presumption of death aft- 
 er a lapse of years is not sufficient in a crim- 
 inal prosecution to prove that the wife was 
 unmarried; People v. Weinstock, 140 N. Y. 
 Supp. 453. See Escheat; Absentee, as to 
 the power of the legislature to provide for 
 the administration of estates of persons ab- 
 sent and presumed to be dead. 
 
 The record of the probate of a will is not 
 competent evidence of death except where 
 
 all parties to a subsequent action were also 
 parties before the 'surrogate ; Carroll v. Car- 
 roll, 60 N. Y. 121, 19 Am. Rep. 144, and note. 
 But it is held that where a foreign court of 
 competent jurisdiction has made a grant of 
 administration on the presumption of death, 
 such grant may be accepted by the court of 
 probate as sufficient proof ; [1892] Prob. 255. 
 Letters of administration were held to be 
 evidence of death; Ruoff v. Bank, 40 Misc. 
 549, S2 N. Y. Supp. 881; Aultman, Miller & 
 Co. v. Timm, 93 Ind. 158. So is a certificate 
 of the register of births and deaths; Suc- 
 cession of Jones, 12 La. Ann. 397. 
 
 A letter contained in an envelope request- 
 ing a return to the writer, if not called for, 
 and showing the post office stamp that it had 
 been returned to the writer, is admissible as 
 affording ground for an inference, more or 
 less strong, of the death of the addressee; 
 Hurlburt v. Hurlburt's Estate, 63 Vt. 667, 22 
 Atl. 850. 
 
 Questions of difficulty have arisen where 
 several persons, respectively entitled to in- 
 herit from one another, happen to perish all 
 together by the same event, such as a ship- 
 wreck, a battle, or a conflagration, without 
 any possibility of ascertaining who died 
 first. In such cases the French civil code 
 and the civil code of Louisiana lay down 
 rules (the latter copying from the former) 
 which are deduced from the probabilities re- 
 sulting from the strength, age, and differ- 
 ence of sex of the parties. 
 ' If those thus perishing together were un- 
 der fifteen, the eldest shall be presumed the 
 survivor. If they were all above sixty, the 
 youngest shall be presumed the survivor. If 
 some were under fifteen and others above 
 sixty, the former shall be presumed the sur- 
 vivors. If those who have perished together 
 had completed the age of fifteen and were 
 under sixty, the male shall be presumed the 
 survivor where the ages are equal or the 
 difference does not exceed one year. If they 
 were of the same sex, that presumption shall 
 be admitted which opens the succession in 
 the order of nature; and thus the younger 
 must be presumed to have survived the elder. 
 French Civ. Code, arts. 720-722; La. Civ. 
 Code, arts. 930-933; Hollister v. Cordero, 76 
 Cal. 649, 18 Pac. 855.
 
 DEATH 
 
 779 
 
 DEATH 
 
 The English common law has never adopt- 
 ed these provisions, or gone Into the refine- 
 ment of reasoning upon which they are bas- 
 ed. It requires tin- survivorship to be; 
 by facts, and not by any settled legal rule 
 or prescribed presumption. In some of the 
 that have arisen involving this bare 
 question of survivorship, the court have ad- 
 vised a compromise, denying that there was 
 any legal principle upon which it could be 
 ■ I. In (jt hers, the derision has been 
 that they all died together, and that none 
 
 could transmit rights to others; 1 W. Bla, 
 G40; Fearne, Posth. Works 38, 39; 2 PhilL 
 261; Cro. Eliz. 603; 3 Bagg. Bed. 748; ■", 
 B. & Ad. in ; l V. & 0. Oh. 121 ; Russell 
 v. Hallet, 23 Kan. 276; Btinde v. Goodrich, S 
 Bedf. (N. Y.) 87; [1892] Prob. 142; Ash v. 
 Hare, 73 Me. 403; that is, the one who 
 bears the burden of proof of survivorship 
 fails In his case; Newel] V. Nichols, 75 N. Y. 
 78, 31 Am. Rep. 421'; Russell v. Hallet r. 23 
 Kan. 276. Where a mother and daughter die 
 in the same year, but there is no evidence 
 of the precise date of the death of the moth- 
 er, an assumption that she died before the 
 daughter is not warranted; Cook v. Cas- 
 well, 81 Tex. G78, 17 S. W. 3S5. Each case 
 must be determined upon its own peculiar 
 facts and circumstances, whenever the evi- 
 dence is sufficient to support a finding as to 
 survivorship; Estate of Ehle, 73 Wis. 445, 
 41 N. W. 627. 
 
 As to contracts. These are, in general, not 
 affected by the death of either party. The 
 executors or administrators of the decedent 
 are required to fulfil all his engagements, 
 and may enforce all those in his favor. But 
 to this rule there are the following excep- 
 tions, in which the contracts are terminated 
 by the death of one of the parties: — 
 
 The contract of marriage. See Marriage. 
 
 The contract of partnership. See Part- 
 
 NI US HIP. 
 
 Those contracts which are altogether per- 
 sonal: as, where the deceased has agreed to 
 accompany the other party to the contract 
 on a journey, or to serve another; Pothier, 
 Obi. c. 7, art 3. §§ 2, 3; Howe Sewing-Mach. 
 Co. v. Roseusteel, 24 Fed. 5S3 ; Lacy v. Get- 
 man, 11!) N. Y. 109, 23 N. E. 452, 6 L. R. A. 
 728, 16 Am. St. Rep. 806; or to instruct an 
 apprentice; Bacon, Abr. Executor, P; l 
 Burn, Eccl. Law 82; Ans. Oontr. 325; 
 Shields v. Owens, 1 Rawle (Pa.) 61; also an 
 instance of this species of contract in '_' B. 
 & Ad. 303. In all those cases where one is 
 acting for another and by his authority, 
 SUCh as agencies and powers of attorney, 
 where the agency or power is not coupled 
 with an interest, the death of the party or- 
 dinarily works a revocation; Hunt v. Rous- 
 manier, 8 Wheat. (U. S.) 174. 5 L. Ed. 589; 
 Lehigh Coal & Nav. Co. v. Mohr. 83 Pa. 228, 
 24 Am. Rep. 161. Where the power is to 
 transfer si nek, signed by the seller of the 
 stock, it is not revoked by his death; Fish- 
 
 er v. Coal Co., 31 W. N. C. (Pa.) 502. See 
 Principal and Agent. 
 
 continued i 
 
 pulated tern 
 tract; and on n 
 Hon will lie agau 
 Fusing to cont Inu 
 ton v. G 
 Dec. 578; Lacy v. G< L19 N. Y. 
 
 N. B. 452, 6 L. K A. T_ 
 806; L. R. 4 C. P. 744 ; Burd< 
 Allen (Mass.) 125; Harrii 
 134, 25 B. B. 525; Babcock v. Go ■■ ricl 
 How. 1'r. N. S. (X. Y.i 52. But in Han 
 v. Conlan. 10 Allen (Mas* or of 
 
 B Church employed an 01 
 
 months tor 550. The i 
 and the organisi did not plaj tl 
 though ready to do so. lr \- 
 action against I 
 
 of the pastor that the obligation to pay was 
 not discharged by his death, but that the or- 
 ganist could recover only pro mta compen- 
 sation for the portion of the three months 
 during which he had played. Where a land- 
 owner hired another for a specified term to 
 raise crops, the contract was held not to end 
 with the employer's death, but to be binding 
 on his personal representatives, If the 
 ployment was continued; though most of the 
 
 a were rendered after the emp 
 death, the employee was entitled • 
 his compensation: Pugb v. Baker, 127 N. ( ' 
 2, 37 S. E. 82. In Mendenhall v. I>a'- 
 Wash. 169, 100 Pac. 336, 21 L R, A. (N. B.) 
 914, 17 Ann. Cas. 17i». a buyer paid .'ash aud 
 notes for the implements and good will of 
 the seller's dentistry business and for the 
 seller's agreement to render for 
 time personal service in that bu si ness ; the 
 seller died before the expiration of the pe- 
 riod and the buyer was held to have a right 
 
 to counterclaim against his liability on the 
 noies the damages he had Buffered by fail- 
 ure to receive the services. 
 
 As to torts. In general, when the tort 
 feasor or the party injured dies, the • 
 of action dies with him; but when tl 
 ceased might ha V6 waived th< tort and main- 
 tained assumpsit against the defendant, his 
 personal representative may do the same 
 thing. See Ai no PERSONALIS MOSITUB CUM 
 l'l BSONA, where this subject is more fully ex- 
 amined. As to the right of action for death 
 by wrongful act. see infra. 
 
 As !■, ■ inns. When a pet 
 
 crime dies before trial, no proceeding 
 
 he had agalnsl his representatives or his 
 estate. 
 
 .iv to inheritance. By the death of a per- 
 
 Ised of real estate or i if per- 
 
 sonal property, his property real and per- 
 sonal, after satisl'v ii when 
 he has made a will, as he has directed by 
 that instrument; but if he dies intestate, his 
 real estate goes to his heirs at law under the 
 statute of descents, and his personal to his
 
 DEATH 
 
 780 
 
 DEATH 
 
 administrators, to be distributed to the next 
 of kin, under the statute of distributions. 
 
 In suits. At common law an original suit 
 abated by reason of the death of the plain- 
 tiff ; 6 Wait, Act. & Def. 400 ; Torry v. Rob- 
 ertson, 24 Miss. 192; but in most of the 
 states and England it is otherwise, and the 
 personal representatives may become parties 
 and prosecute the suit; Wms. Ex., 7th Am. 
 ed. pt. ii. b. iii. ch. 4, and American note 
 thereto, pp. 91, 99. The English practice and 
 rules under the procedure acts will be found 
 in the chapter of Williams on Executors 
 above cited and a reference to the American 
 statutes in the note thereto. In case of the 
 death of a plaintiff the usual practice is to 
 make a suggestion of it to the court which 
 is entered of record ; and in case of the 
 death of a defendant his executor or admin- 
 istrator may be made a party, either by 
 scire facias, or motion for an order of re- 
 vivor, or other proceeding for giving due no- 
 tice to the representative, according to the 
 varying practice of the several states. See 
 Abatement. 
 
 As to the death of one of the parties in a 
 divorce suit, see Divorce. 
 
 The death of a defendant will discharge 
 the special bail ; Tidd, Pr. 243 ; but when he 
 dies after the return of the ca. sa. and be- 
 fore it is filed, the bail are fixed; 6 Term 
 284; Boggs v. Teackle, 5 Binn. (Pa.) 332; 
 Champion v. Noyes, 2 Mass. 4S5 ; Davidson 
 v. Taylor, 12 Wheat. (U. S.) 604, 6 L. Ed. 
 743; Olcott v. Lilly, 4 Johns. (N. Y.) 407; 
 Goodwin v. Smith, 4 N. H. 29. 
 
 At common law there was no right of ac- 
 tion for death by wrongful act; Green v. R. 
 Co., 28 Barb. (N. Y.) 9; Major v. Ry. Co., 
 115 la. 309, 88 N. W. 815; Duncan v. St. 
 Luke's Hospital, 113 App. Div. 68, 98 N. Y. 
 Supp. 867. 
 
 Lord Ellenborough, in Baker v. Bolton, 
 1 Campb. 493, held that "in a civil court 
 the death of a human being cannot be 
 complained of as an injury." Homicide 
 is always a purely criminal matter. In 
 the early English law it was regarded more 
 as a civil than a criminal offence, and 
 damages were paid to the family of the de- 
 cedent known as wergilds. As, during the 
 continuance of this custom, a process for 
 the recovery of the wergilds was certainly 
 given, it seems that when these offences 
 grew no longer redeemable, the private pro- 
 cess was still continued, in order to secure 
 the infliction of punishment upon the of- 
 fender, though the party injured was al- 
 lowed no pecuniary compensation; Jac. L. 
 Diet. tit. Appeal. This process was known 
 as an appeal of murder, and was permitted 
 by statute to co-exist with the criminal ac- 
 tion. The defendant, if found guilty did not 
 pay any damages to the plaintiff, but was 
 punished as in a criminal case. The real ad- 
 vantage to the plaintiff lay in the fact that 
 he could release his rights, and that such re- 
 
 leases were frequently of great pecuniary val- 
 ue ; 7 Harv. L. Rev. 170. This appeal for mur- 
 der existed as late as 1818 in the case of 
 Ashford v. Thornton, 1 B. & Aid. 405, where 
 the court held that the appellor had a right 
 to bring the case by writ of appeal, but that 
 the appellee had an equal right to his 
 plea of wager of battel. The appellor de- 
 clined to accept the decision of the court 
 giving the appellee trial by battel and the 
 latter was discharged. This led to the en- 
 actment of a statute the next year abolish- 
 ing appeal of murder, treason, etc., as well 
 as wager of battel (59 Geo. III. ch. 46). Un- 
 til 1846 there was no civil remedy. In that 
 year Lord Campbell's Act was passed (9 & 
 10 Vict. ch. 93), known as the Fatal Ac- 
 cidents Act, allowing a recovery for death 
 caused by negligence or wrongful act. See 
 Appeal. 
 
 In the United States, like statutes have 
 been passed modelled on this act. They dif- 
 fer principally in respect of the person who 
 may bring the action. Their purpose is to 
 provide the means for recovering damages 
 caused by that which is essentially and in 
 its nature a tort. Such statutes are not 
 penal but remedial — for the benefit of the 
 persons injured by the death.. 
 
 An action to recover damages for a tort 
 is not local, but transitory, and can, as a 
 general rule, be maintained wherever the 
 wrongdoer can be found ; Stewart v. R. 
 Co., 168 U. S. 44S, 18 Sup. Ct. 105, 42 L. Ed. 
 537. It may well be that, where a purely 
 statutory right is created, the special rem- 
 edy provided by the statute for the enforce- 
 ment of that right must be pursued, but 
 where the statute simply takes away a com- 
 mon-law obstacle to a recovery for what is 
 admitted to be a tort, it would seem not un- 
 reasonable to hold that an action for that 
 tort can be maintained where the statute of 
 the state in which the cause of action arose 
 is not in substance inconsistent with the 
 statutes or public policy of the state in 
 which the right of action is sought to be en- 
 forced; Stewart v. R. Co., 168 U. S. 445, 
 18 Sup. Ct. 105, 42 L. Ed. 537, citing Texas 
 & Pac. Ry. Co. v. Cox, 145 U. S. 593, 12 Sup. 
 Ct. 905, 36 L. Ed. 829; Northern Pac. R. 
 Co. v. Babcock, 154 U. S. 190, 14 Sup. Ct. 
 97S, 38 L. Ed. 958. 
 
 Where the negligence which causes the 
 accident occurs in one state or country, and 
 the accident itself in another, it is the law 
 of the latter place that governs; Rundell 
 v. La Compagnie Gen. Trans., 100 Fed. 655, 
 40 C. C. A. 625, 49 L. R. A. 92 (in admiralty). 
 It is held that a new action is created for 
 the benefit of the persons named in the stat- 
 ute, and not a continuation of a right of 
 action belonging to decedent before his 
 death; In re Mayo's Estate, 60 S. C. 401, 
 38 S. E. 634, 54 L. R. A. 660. So a cause 
 of action for personal injuries which sur- 
 vives is held distinct from a cause of ac-
 
 DEATH 
 
 781 
 
 \TH 
 
 tlon In favor of surviving relatives; Brown 
 v. R. Co., 102 Wis. 137, 77 N. W. 74S, 7^ X. 
 W. 771, 44 L. R. A. 579; Lubrano v. Mills. 
 19 R. I. 129, 32 AH. 206, 34 L. R. A. 797; 
 the two actions, though prosecuted by the 
 same personal representative, are not in the 
 same right, and a recovery In one is aol a 
 bar to a recovery in the other; Mahoning 
 Valley R. Co. v. Van Alstine, 77 Ohio St. 
 395, S3 N. B. 601, 14 L. R. A. (N. S. 
 That there is but one ground of liability, the 
 wrongful act. and as all claims for dam- 
 ages grow out of the one wrong, it is un- 
 reasonable to say that, the Legislature In- 
 tended (here should be two causes of ac- 
 tion based upon it, was held in Ilolton v. 
 Daly, 106 HI. 131. In Brown v. It. ('.... 102 
 Wis. 137, 77 X. W. 748, 78 N. W. 771. 44 L. 
 R. A. 579. it is said of that ease: "True, in 
 the circumstances named, there is but one 
 wrongful act, but that is not the sole ground 
 of action in the right of the deceased or the 
 survivor. It takes the wrongful act and the 
 loss to make the complete cause of action, 
 and as the loss to the person upon whom 
 the injury is inflicted must be recovered by 
 or in bis right, and the loss to the surviving 
 relatives by or in their right, the causes of 
 action are clearly distinct." "If several per- 
 sons are made to suffer pecuniary loss by 
 one wrongful act, each may very properly 
 have his independent cause of action and 
 remedy for the loss resulting to him, and, 
 generally, in order to do complete jus- 
 tice, in the absence of some provision for a 
 recovery for the benefit of all and a dis- 
 tribution of the proceeds, separate causes 
 of action must necessarily exist." 
 
 The principles on which the decedent's 
 cause of action rested at common law are 
 the same irrespective of the cause of his 
 death. It died with him, but is revived by 
 thi' statute in favor of his administrator. 
 It includes nothing more than the intes- 
 tate's cause of action^ That act simply re- 
 vives but does not enlarge the common-law 
 right of the decedent. The provision Cor 
 surviving relatives introduced principles 
 wholly unknown to the common law. name- 
 ly, that the value of a man's life to his wife 
 and next of kin constitute part of his es- 
 tate; Xeedbam v. R. Co.. 38 Vt. 294, where 
 it is said that the damages to thi' widow 
 and next of kin begin where the damage to 
 the intestate ended — with his death. In 
 Clare v. 11. Co., 172 Mass. 211, .".1 \. 1'.. 1083, 
 it was held that a judgment in an action by 
 an administrator for personal injuries suf- 
 fered by plaintiff's intestate, ami net Cor 
 his death, is not a bar to the prosecution of 
 an action for damages for his death. But 
 it was further held that where one has both 
 a common-law and a statutory right of ac- 
 tion for injuries, and has elected to pursue 
 the statutory remedy, an action on the other 
 is barred; and while the right to maintain 
 the statutory action for death is recognized, 
 
 yet where damages have already been re- 
 covered under the common-] 
 
 statutory right is barred. 
 
 It has been held that th is 
 
 instantaneous an actloi 
 tained under the survival statu:, 
 land v. K. Co., 117 Mich. 329, 75 X. YY 
 L3 I.. K. A. 568; and where ii ; . 
 survived the injury about t. 
 was held by a divided ■ 
 
 meiit based on the death act ■ ■■ lid 
 sustained, as that act could !y to 
 
 cases where the death was Instant 
 and that in other cases tin- action m 
 based on what was termed the survival act ; 
 Dels. ,n v. It. Co., 128 Mich. ill. 87 X. W, 
 629; Belding v. R. Co.. 3 S. D. 369, 53 X. 
 W. 750; Sawyer v. Perry, 88 Me. 12, 3 
 CG0. 
 
 "Where the plaintiffs husband released the 
 defendant from liability for personal inju- 
 ries received by her such a release was held 
 a bar to a recovery, when five years later 
 such injuries resulted in her death, on the 
 ground that the wife was privy to th* 
 band, and therefore estopped by his rel< 
 and that payment, like pardon, relates back 
 to the original act: Southern Bell Telephone 
 & Telegraph Co. v. Cnsatn, 111 6a. 57J 
 S. E. 881, 50 I.. It. A. 694. 
 
 Collateral relations must show that they 
 suffered pecuniary loss in order to permit 
 a recovery of more than nominal damages; 
 Anderson v. R. Co., 35 Neb. 95, 52 X. W. 
 sin: Paulmler v. it. Co., •"■( X. J. L. 151; 
 in re California Nav. & Imp. To., no Fed. 
 670; P.urk v. R. Co.. 125 CaL 364, 57 Pac. 
 1065, 7:: Am. St. Rep. 52; Serensen v. It. 
 Co., 45 Fed. 407; or reasonable expectation 
 thereof; Thomas v. It. Co., o Civ. Pr 
 (N. Y.) 353; The O. L. Hallenbeck, 119 Fed. 
 
 468. The amount the deceased WOUld prob- 
 ably have added to his estate has been 
 adopted as the measure of recovery; Chi- 
 cago, I". & St. L. R. Co. v. Woolridge, 17 1 
 i, 51 X. B. 701 : and probabilities, not 
 
 possibilities, of benefits ; Cleveland, < '.. C 
 
 & st. i.. it. Co. v. Drumm, 32 bad. App. .M7. 
 70 X. E. 286. 
 
 The lOSS Of parental care will not he 
 considered in awarding damages; M< 
 v. Lighting Co.. 27 B, I. 272, 61 Atl. 667; 
 centra, Anthony Ittner BriCK •'•'. v. Ashhy. 
 198 111. 562, r.l X. E5. 1109. As to wheth- 
 er the pain and Buffering of the 
 ■>r the grief ami wounded feelings of his 
 surviving relatives will be considered in 
 (he estimate of dan ■ Mas i.vi 
 
 rSBHTO. 
 
 The mother of an Illegitimate child can- 
 not recover; McDonald v. it. Co., 71 S. C. 
 s. K. 138, 2 I.. It. A. iX. s.i 640, no 
 Am. St. Itep. 570; where the statute gives 
 the right to the mother and other spe 
 relatives; Alabama & V. Ry. Co. v. Williams, 
 78 Miss. 209, 28 South. 853, 51 L. K. A 
 S4 Am. St. Rep. 624; Marshall v. R. Co., 4G
 
 DEATH 
 
 782 
 
 DEATH 
 
 Fed. 269; although by statute, an illegiti- 
 mate child and his mother may inherit from 
 each other; Harkins v. R. Co., 15 Phila. 
 (Pa.) 2S6. These cases follow the English 
 rule, which denies the right of action on 
 the ground that "child" in an act of parlia- 
 ment always applies exclusively to a legiti- 
 mate child; 2 Hurlst. & C. 735. 
 
 On the other hand, where the statute al- 
 lowed an illegitimate child and its mother 
 to inherit from each other, the mother 
 should be permitted to recover; Marshall 
 v. R. Co., 120 Mo. 275, 25 S. W. 179; so 
 also where the statute gave the right of re- 
 covery to the widow and next of kin; Se- 
 curity Title & Trust Co. v. R. R. Co., 91 111. 
 App. 332. 
 
 When the legislature has created a right 
 of action for wrongful death for the bene- 
 fit of the next of kin, and has declared that 
 the father, if living, is the next of kin of 
 minor children who leave neither widow nor 
 children, an action for the death of such 
 child must be for the sole benefit of the 
 father, although he has deserted his fam- 
 ily, to whose support the deceased child was 
 at the time of his death contributing ; Swift 
 & Co. v. Johnson, 138 Fed. 867, 71 C. C. A. 
 619, 1 L. R. A. (N. S.) 1161; Pineo v. R. Co., 
 99 N. Y. 644, affirming 34 Hun (N. Y.) 80. 
 It is said, however that he may have only 
 nominal damages in such case; Cook v. 
 Gunpowder Co., 70 N. J. L. 65, 56 Atl. 114; 
 and his right to recover at all is denied in 
 Southern R. Co. v. Flemister, 120 Ga. 524, 
 48 S. E. 160. 
 
 At common law, neither husband nor wife 
 may recover damages for the negligent kill- 
 ing of the other where death is instantan- 
 eous, either for loss of services or consor- 
 tium; Armstrong v. Beadle, Fed. Cas. IS'o. 
 541; Howell v. Board of Com'rs, 121 N. C. 
 362, 28 S. E. 362; Johnson v. Electric Co., 
 39 Wash. 211, 81 Pac. 705; Wyatt v. Wil- 
 liams, 43 N. H. 102 ; Grosso v. R. Co., 50 N. 
 J. L. 317, 13 Atl. 233; Womack v. Banking 
 Co., 80 Ga. 132, 5 S. E. 63 ; The Harrisburg, 
 119 U. S. 199, 7 Sup. Ct. 140, 30 L. Ed. 358; 
 Mowry v. Chaney, 43 la. 609; Sherlag v. 
 Kelley, 200 Mass. 232, 86 N. E. 293, 19 L. 
 R. A. (N. S.) 633, 128 Am. St. Rep. 414; 
 Green v. R. Co., 28 Barb. (N. Y.) 9, where it 
 is said no action for loss of .service can 
 be sustained in case of instantaneous death, 
 because there is no time during her life 
 when it can be said that the husband has 
 lost the society and service of his wife in 
 consequence of the injury complained of. 
 Recovery can be had if death is not instan- 
 taneous; Eden v. R. Co., 14 B. Monr. (Ky.) 
 204; Hyatt v. Adams, 16 Mich. 180; Green 
 v. R. Co., 28 Barb. (N. Y.) 9. See McMillan 
 v. Lumber Co., 115 Wis. 332, 91 N. W. 979, 
 60 L. R. A. 589, 95 Am. St. Rep. 947. In 
 Ohio the action can be maintained in the 
 courts of that state only when the deceased 
 was an Ohio citizen; Baltimore & O. R. Co. 
 
 v. Chambers, 73 Ohio St. 16, 76 N. E. 91, 11 
 L. R. A. (N. S.) 1012; affirmed in Chambers 
 V. R. Co., 207 U. S. 142, 28 Sup. Ct. 34, 52 JL. 
 Ed. 143, where it was held tbat the plaintiff 
 was not denied access to the Ohio courts 
 because she was not a citizen of that state, 
 but because her cause of action was not 
 cognizable in those courts. 
 
 Generally, under the statutes, the remedy 
 is open to non-residents; In re Mayo's Es- 
 tate, 60 S. C. 401, 38 S. E. 634, 54 L. R. A. 
 600. Non-resident aliens are within the 
 operation of such statute permitting the 
 father, mother, widow or next of kin of one 
 killed by another's negligence (or the per- 
 sonal representatives of the deceased, for 
 their benefit) to maintain an actiofa, al- 
 though the statute does not expressly declare 
 that they shall be entitled to its benefit; 
 Rietveld v. R. Co., 129 la. 249, 105 N. W. 
 515; Trotta's Adm'r v. Johnson, 121 Ky. 
 827, 90 S. W. 540, 12 Ann. Cas. 222; Masci- 
 telli v. Union Carbide Co., 151 Micb. 693, 
 115 N. W. 721; Kelly ville Coal Co. v. Petray- 
 tis, 195 111. 215, 63 N. E. 94, 88 Am. St. Rep. 
 191 ; Atchison, T. & S. F. Ry. Co. v. Fajardo, 
 74 Kan. 314, 86 Pac. 301, 6 L. R. A. (N. S.) 
 681 ; Ferrara v. Mining Co., 43 Colo. 496, 95 
 Pac. 952, 17 L. R. A. (N. S.) 964; Gaska v. 
 Car & Foundry Co., 127 Mo. App. 169, 105 
 S. W. 3; Low Moor Iron Co. v. La Bianca's 
 Adm'r, 106 Ya. 83, 55 S. E. 532, 9 Ann. Cas. 
 1177 ; Mulhall v. Fallon, 176 Mass. 266, 57 N. 
 E. 3S6, 54 L. R. A. 934, 79 Am. St. Rep. 309; 
 Kellyville Coal Co. v. Petraytis, 195 111. 215, 
 63 N. E. 94, 88 Am. St. Rep. 191; Szymanski 
 v. Blumenthal, 3 Pennewill (Del.) 55S, 52 
 Atl. 347; Renlund v. Min. Co., 89 Minn. 41, 
 93 N. W. 1057, 99 Am. St. Rep. 534; Bon- 
 thron v. Fuel Co., 8 Ariz. 129, 71 Pac. 941, 61 
 L. R. A. 563; Alfson v. Bush Co., 182 N. Y. 
 393, 75 N. E. 230, 108 Am. St. Rep. 815; 
 Pittsburgh, C, C. & St. L. R. Co. v. Naylor, 
 73 Ohio St. 115, 76 N. E. 505, 3 L. R. A. 
 (N. S.) 473, 112 Am. St. Rep. 701; Cetofonte 
 V. Coke Co., 78 N. J. L. 662, 75 Atl. 913, 27 
 L. R. A. (N. S.) 1058; Patek v. Refining Co., 
 154 Fed. 190, 83 C. C. A. 284, 21 L. R. A. 
 (N. S.) 273 (Colorado); Mahoning Ore & 
 Steel Co. v. Blomfelt, 163 Fed. 827, 91 0. C. 
 A. 390 (Minnesota) ; Kaneko v. Ry. Co., 164 
 Fed. 263 (California) ; Anustasakas v. Con- 
 tract Co., 51 Wash. 119, 98 Pac. 93, 21 L. K. 
 A. (N. S.) 267, 130 Am. St. Rep. 1089. The 
 courts of Pennsylvania, Wisconsin and In- 
 diana denied this right; Deni v. R. Co., 181 
 Pa. 525, 37 Atl. 558, 59 Am. St. Rep. 676; 
 Maiorano v. R. Co., 216 Pa. 402, 65 Atl. 
 1077, 21 L. R. A. (N. S.) 271, 116 Am. St. 
 Rep. 778; affirmed in 213 U. S. 268, 29 Sup. 
 Ct. 424, 53 L. Ed. 792; McMillan v. Lumber 
 Co., 115 Wis. 332, 91 N. W. 979, 60 L. R. A. 
 5S9, 95 Am. St. Rep. 947; Cleveland, C, C. 
 & St. L. R. Co. v. Osgood (Ind.) 70 N. E. 
 839. The federal courts sitting in Pennsyl- 
 vania followed the Pennsylvania courts ; 
 Zeiger v. R. Co., 151 Fed. 348, affirmed in
 
 DEATH 
 
 7S3 
 
 DEATH 
 
 158 Fed. 809, 86 C. C. A. 69. In Brannigan 
 v. Mining Co., 93 Fed. 164, the United sink's 
 circuit court for Colorado followed the Penn- 
 sylvania decisions in construing the Colorado 
 
 statute. 
 
 Iu England, too, the rulings have been 
 conflicting. It was held that Lord ( 
 bell's Act does not give a right <>t action 
 for the benefit of u non-resident alien; 
 2 Q. B. 430; but a later case disapproved 
 this ruling and a right of recovery on be- 
 half of a non resilient alien widow was sus- 
 tained; [1901] 2 K. B. 606. 
 
 It was Bought in Malorano v. R. Co., 216 
 Pa. 402, 65 Atl. 1077, 21 L. R. A. (N. S.) 271, 
 11G Am. St. Rep. 778, to overrule the earlier 
 Pennsylvania decisions by contending that 
 the plaintiff was protected by the existing 
 treaty between the railed States and Italy 
 providing that citizens of Italy shall enjoy 
 in states of the Union in the protection and 
 security of their persons and property the 
 same rights which are by citizens 
 
 of the United States. But it was held that 
 such a treaty conferred such rights only 
 upon those citizens of Italy who firing their 
 persous or property within the jurisdiction 
 of the United States ; that the plaintiff in 
 this case, being a citizen and resident of 
 Italy, could not recover damages for her 
 husband's death. This was affirmed by the 
 United States Supreme Court: 213 U. S. 2G8, 
 29 Sup. Ct. 424, 53 L. Ed. 792. 
 
 In New York it was held that since in 
 Pennsylvania no right of action for wrong- 
 ful death existed in favor of non-resident 
 aliens, upon the principles of comity non- 
 residents could not maintain an action in 
 New York and recover for the death of a 
 person in Pennsylvania; Gurofsky v. K. Co., 
 121 App. Dlv. 120, 105 N. Y. Supp. 514. 
 
 By a treaty between United States and 
 Italy of 1913, non-resident aliens are given 
 a right of action for injury or death caused 
 by negligence or fault, and they enjoy the 
 same rights as are granted to United Slate- 
 citizens, under like conditions. 
 
 It was held in The Harrisburg, 11!) U. S. 
 lit!). 7 Sup. Ct. 140, 30 E. Ed. 358, that no 
 damages can he recovered in admiralty for 
 the death by negligence of a human being 
 on the high seas, or on waters navigable 
 from thi' seas, in the absence of an ad oi 
 congress or a state statute. The maritime 
 law, of this country, at least, gives no 
 right; Butler v. Steamship Co., 130 u. s. 
 
 555, Sup. Ct. 012, 32 E. Ed. 1017. ft was 
 held that where the law of a stale to which 
 a vessel helonged (the law of the domlcU or 
 flag) gives a righl of action for wrongful 
 death if such death occurred on the high 
 seas, such right of action will be enforced in 
 admiralty as a claim against tin- fund aris- 
 ing in a proceeding to limit liability; The 
 Hamilton, 207 U. S. 398, 28 Sup. Ct. 133, 52 
 E. Ed. 204. In La Bourgo-no. 210 U. S. 95, 
 28 Sup. Ct. 664, 52 E Ed. 973, it was held 
 that the law of France, which authorizes 
 
 recovery for loss of life against a 
 
 in fault, will I 
 
 the United States in a ] o limit 
 
 liability for claims 
 
 found to be in fault for i 
 
 on the high sea- 
 
 in applying to the fai - found tl 
 
 tional rule as to the speed Ol I 
 
 hail held such vessel not to be in tan:: 
 
 21 flarv. E. Rev. 1, as to t! 
 
 of a right of action acquired under 1 
 
 law for death upon the high 
 
 DEATH-BED DEED. A deed made- hy 
 
 one who was at the time sick of a di 
 from which he afterwards died. B 
 
 DEATH DUTIES. Used in England to 
 designate inheritance tax< Tax. 
 
 DEATH'S PART. 
 
 s l'Aur. 
 
 DEATH WARRANT. See Execution. 
 
 DEBAUCH. To corrupt one's manners, to 
 make lewd, to mar or spoil; to seduce and 
 vitiate a woman. Koenig v. Nott, 2 Hilt (N. 
 V.i 329. 
 
 In an action for damages for crim. con., 
 
 the allegation being that defendant seduced 
 and debauched the plaintiff's wife, 
 her affections were alienated, etc., if the 
 charge of adultery be not proved, the word 
 debauch In the petition will not support a 
 rcrdict for damages for alienation of . 
 tion; Wood v. -Mathews, 47 la. 409. 
 
 It is a word of French origin which has 
 come into use in our language in the sense 
 of enticing and corrupting. 
 
 DEBENTURE (from debentur mihi, Eat.. 
 with whidi various old forms of a 
 of debt commenced ' . A cer 
 en in pursuance of law, by the collector of a 
 port of entry, for a certain sum due by the 
 a time therein men- 
 tioned, to an importer for drawback of duties 
 on merchandise imported and exported by him. 
 provided the duties on the said merchandise 
 shall have icon discharged prior to the 
 :d. U. s. Rev. Stat ss 3037-40. 
 In some government depart term 
 
 o 'i. -uoie a bond o| bill by which the 
 government Is charged to pay a credil 
 Lgns the money due on an liting b 
 count. 
 An instrument in writ rally un- 
 
 g a definite charge on a def- 
 inite or Indefinite fund or subject of prep- 
 ayable to a given | etc., and usu- 
 ally constitutinj of similar 
 Instruments. Cavanagh, Moi ] See 
 56 L. J. R. Ch. D. 815; Brice, Ultra Vires 
 (2d ed.) 279. 
 
 A Charge in writing on certain property, 
 with the repayment at a time lixed. of money 
 lent by a person therein named at a given 
 Interest 
 
 It is frequently resorted to by public com-
 
 DEBENTURE 
 
 784 
 
 DEBENTURE 
 
 panies to raise money for the prosecution of 
 their undertakings. 
 
 Any instrument (other than a covering or 
 trust deed) which either creates or agrees to 
 create a debt in favor of one person or cor- 
 poration, or several persons or corporations, 
 or acknowledges such debt. Simonson, De- 
 bentures, 5, where this is given as the result 
 of a critical examination and discussion of 
 the cases bearing on the definition of the 
 term. 
 
 As a rule, both text writers and courts content 
 themselves with a statement of inability to define 
 them. An English writer says: "No one seems to 
 know exactly what debenture means;" Buckley, 
 Companies Act 169 ; and Chitty, J., said in one case 
 that "a debenture means a document which either 
 creates a debt or acknowledges it, and any document 
 which fulfils either of these conditions is a deben- 
 ture ;" 37 Ch. D. 260, 264 ; but in the same case 
 North, J., would not go so far. In another case the 
 same judge (Chitty) said: "The term itself imports 
 a debt and acknowledgment of a debt, and generally 
 if not always imports an obligation to pay ;" 36 
 Ch. D. 215 ; and again in another case he thus ex- 
 presses the doubt existing as to the exact legal idea 
 involved in the expression: "So far as I am aware, 
 the term debenture has never received any precise 
 legal definition. It is, comparatively speaking, a 
 new term. I do not mean a new term in the English 
 language, because there is a passage in Swift (quot- 
 ed in Latham's Diet.) where the term debenture is 
 used." The lines referred to are: 
 "You modern wits, should each man bring his claim, 
 Have desperate debentures on your fame: 
 And little would be left you, I'm afraid. 
 If all your debts to Greece and Rome were paid." 
 
 And the judge continued: "But although It is 
 not a term with any legal definition, it is a term 
 which has been used by lawyers frequently with 
 reference to instruments under acts of parliament, 
 which, when you turn to the acts themselves, are not 
 so described ;" 56 L. J. Ch. 817. 
 
 "Debentures, which are the commonest form of 
 security issued by English corporations, are defined 
 to be instruments under seal creating a charge ac- 
 cording to their wording upon the property of the 
 corporation, and to that extent conferring a priority 
 over subsequent creditors and over existing creditors 
 not possessed of such charge. This is the true and 
 proper use of the term ; although it is frequently 
 applied on the one hand to instruments which do 
 not confer a charge and which are nothing more nor 
 less than ordinary unsecured bonds, and on the 
 other to instruments which are more than a mere 
 charge, being in effect mortgages, and are properly 
 termed mortgage debentures." Jones, Corp. B. &.M. 
 § 32. 
 
 In the case of an instrument engaging for the pay- 
 ment of "the amount of this debenture," with cou- 
 pons for interest payable half-yearly, Grove, J., 
 said: "In the several dictionaries which we are in 
 the habit of consulting! no satisfactory definition can 
 be found, and neither of the learned counsel has 
 been able to afford -us any. I do not remember the 
 term being used otherwise than in an acknowledg- 
 ment of indebtedness by a corporate body having 
 power by act of parliament or otherwise to increase 
 its capital by borrowing money." It was something 
 different from a promissory note, having a different 
 stamp duty, different form, and a special mode of 
 paying interest. The paper was held a debenture 
 and subject to a higher stamp duty than a promis- 
 sory note. In the same case Lindley, J., said that 
 what were known as debentures were of various 
 kinds ; — mortgage debentures which were charges on 
 some kinds of property, debenture bonds which were 
 not, debentures which were nothing more than an 
 acknowledgment of indebtedness and "a thing like 
 this which is something more." 7 Q. B. D. 165. 
 
 Manson, treating of 'The Growth of the Deben- 
 ture" in 13 L. Q. R. 418, says that its origin was a 
 
 mere acknowledgment of indebtedness from the 
 crown, first for wages, etc., of servants, then to 
 soldiers for arrears due them, and in various cases 
 for amounts due from the exchequer and the cus- 
 tom house ; it was in its primitive meaning just 
 what its derivation from debentur implies — an ad- 
 mission of indebtedness, importing, as quoted supra 
 from Chitty, J., an obligation or covenant to pay. 
 From this root, slender as it is," continues the same 
 writer, "have branched all the variety of forms. 
 . . . Debentures to Bearer, Registered Debentures, 
 Perpetual Debentures. Mortgage Debentures, Deben- 
 ture Bonds, Debenture Stock, Trust or Covering 
 Deeds, Debenture Stock Certificate to Bearer." 
 Originally not one of a series, now inseparably con- 
 nected with serial form. "An issue of debentures 
 is in effect one great contributory charge made up 
 of a series of securities, identical in form and 
 amount." id. 
 
 Its character springs from its genesis, as the writ- 
 er above quoted remarks, and is moulded by the 
 combination of necessities: (1) Of giving security 
 to the holders ; (2) of leaving the company free to 
 manage its business. From this combination arises 
 the idea of the "floating charge" which binds the 
 property of the company and the continuance of 
 which as a mere charge is based upon the contin- 
 ued existence of the company as a going concern. 
 See Floating Charge. The property charged, 
 changing as it does in specie from time to time is 
 by English courts termed the Undertaking, which 
 title se,e. 
 
 If the company makes by default or is wound up 
 or "ceases to be a going concern," the right of the 
 holders arises to ask for a receiver and to realize 
 their interest ; 56 L. J. Ch. 536, 35 W. R. 574 ; L. R. 
 15 Ch. D. 465. A sale of its entire property assets, 
 good will, etc., is not in the ordinary course of 
 business and was enjoined ; id. 
 
 "A floating charge, though it nets all the avail- 
 able assets, is only an equitable security, and 
 . . . may vanish altogether. Hence, where the 
 sum borrowed is large, it has become usual to sup- 
 plement the floating charge by a mortgage of spe- 
 cific property embodied in what is commonly called 
 a covering or trust deed ;" 13 L. Q. R. 422 ; which 
 has two purposes: (1) To fasten the security upon 
 the property ; (2) to organize the debenture holders 
 into a compact body and name trustees to act for 
 them ; id. 
 
 The mere fact that an instrument is on its face 
 termed a debenture does not make it such, if on an 
 examination of its substance it is found not to con- 
 tain an acknowledgment of, or agreement to pay, a 
 debt; 36 Ch. D. 215; 37 id. 260. 
 
 Debentures may be issued by a single per- 
 son, a firm, or corporation, and it is an at- 
 tribute implied in the definition of deben- 
 ture that the holders are entitled without 
 priority among themselves. They are, it is 
 said, usually made a primary charge on the 
 corporate property or undertaking, and as 
 such will have priority over judgments ob- 
 tained by general creditors and over the 
 claims of shareholders ; Cav. Mon. Sec. 358. 
 
 "Such debentures are in effect statutory 
 mortgages. ... In England each cred- 
 itor is secured by a separate mortgage, wliile 
 in America one secures all; and by statute 
 in England, holders of mortgage debentures 
 have no priority inter se." Jones, Corp. B. & 
 M. Sec. 32. 
 
 Sometimes the nature of a debenture hold- 
 er's charge is that of a floating mortgage or 
 security attaching only to the subjects which 
 are for the time being the property of thp 
 company, and not preventing the latter from 
 disposing of the subject charged free from
 
 DEBENTURE 
 
 785 
 
 DEBENTURE 
 
 Incumbrance; id.; L. R. 15 Ch. D. 405; 10 
 id. 530. 
 
 A debenture is distinguished (1) from a 
 mortgage which is an actual transfer of prop- 
 erty, (2) from a bond which does not directly 
 affect property, and (3) from a mere charge 
 on property which Is Individualized and dues 
 not form part of a series of Bimilar chi 
 Cav. .Mun. Sea 2<;7, citing L B. 10 Ch. D. 
 530, 681 ; 15 id. 465; 21 id. 762; L. R. 7 App. 
 Cas. 073. Debentures Btrictly so called dif- 
 fer from mortgages in not conferring on the 
 grantee the legal title or any of the ordinary 
 rights of ownership of tlie property upon 
 which the charge Is created. A Leading Amer- 
 ican writer says of this class of securil 
 understood in England that the charge cre- 
 ated by them confers only equitable rights 
 either as against other creditors or as against 
 the corporation creating them. It is a test 
 whether an instrument is a debenture or 
 mortgage to ascertain whether the holder 
 has any legal right to interfere with the com- 
 pany's use or control of the property in what- 
 ever way it pleases. If the instrument con- 
 fers a charge which can be protected and en- 
 forced only in equity it is strictly a deben- 
 ture; Jones, Corp. B. & M. § 32. See 10 II. 
 L. C. 191. Of course, the effect and extent of 
 the charge depend entirely upon the language 
 used; L. R. 2 Ch. D. 337. 
 
 A debenture holder in England differs 
 from a mortgagee In that the latter has a 
 lien upon tolls and traffic receipts and may 
 have a receiver appointed while the former 
 has not; Jones, Corp. B. & M. § 232; 2 Ir. 
 Eq. 524 ; L. R. 7 Ch. 655. 
 
 Debentures issued by an English company 
 owning land in Italy and binding their "as- 
 sets, property, and effects" were held to cre- 
 ate no mortgage or lien; 20 W. R. 123; and 
 debenture bonds, principal and interest 
 payable to bearer, secured by mortga 
 the company to certain persons as trustees 
 for the holders, which was void for non-re- 
 cording, were held to create no charge; 19 
 Q. B. D. SOS. 
 
 Where a company had power "to issue 
 bonds, debentures, or mortgage debentures," 
 which would entitle holders to b'e paid pari 
 passu out of the company's property, evi- 
 dences of debt expressed as "obligations" by 
 which the company hound "themselvt a and 
 their successors and all their estate property, 
 etc.," were held to be debentures and to cre- 
 ate a charge; 10 Ch. l>iv. 530. 
 
 As issues of debentures are frequently, if 
 not in most cases, made payable to the hear- 
 er, the question has been much litigated in 
 England whether in that form they are trans- 
 ferable by delivery. There being no statute 
 
 under which they are negotiable, they must 
 be so if at all under the law merchant (g. v.). 
 Debentures were at lirst held not negotiable 
 under that law: I.. K. 8 Q. B. 374; but In 
 the Exchequer Chamber upon a critical ex- 
 Bouv.— 50 
 
 amination the decision was otherwise; L. R. 
 10 Ex. .'JIG; which was affirmed by the House 
 of Lords, which distinguished the cases and 
 did not review the eai ■■: 1 App. 
 
 470; and finally it was held that debentures 
 Issued in England by a I 
 able to bearer i 
 
 nit and their trun.-; od ti- 
 
 ,inst anybody to a bona .,'•. 
 er ; [1808] Q. B. 658. 1 
 applied to those of a fop 
 inoiily treated as negotiable in the 
 _] 3 Ch. 527. 
 
 Where a number of debentu; caled 
 
 Cter another iu numerical ■ 
 prima facie rank in priority accordingly, but 
 if it is so provided, they rank ; 
 i h. 1). 7<;u ; 38 id. L56, 171 : I 
 panics Acts 172. They are generally I 
 in a serh s, but need not be 
 debenture may be issued to one man; 3U Ch. 
 I). 22L 
 
 atures are not issued until they are 
 delivered; id.; 34 Ch. D. 58. A contract to 
 make or take debentures will not be jj 
 ically enforced, but the party is left to hia 
 action for damages; li s '-»7J 1 Q. B 
 tinned [189S] A. C. 309. 
 
 The exact nature of debentures has 
 much discussed in England as arising In cas- 
 es where the question was whether a 
 required registration under the Bills of Sales 
 Act which excepted from its provisions "de- 
 bentures" issued by any mortgage, loan, or 
 other incorporated company and secured ui>- 
 on the capital stock of goods, chattels, and 
 effects of such company. 
 
 A memorandum of agreement which con- 
 tained a covenant by a company to pay to 
 each of nine persons, who were mentioned in 
 it as lenders,' the sum set opposite their 
 names pari passu, and charged all the prop- 
 erty of the company, was a debenture 
 ch. I). 215; and the covering deed which usu- 
 ally accompanies debentures as a security 
 for the payment of the debentures when due 
 is not a debenture; 34 Ch. 1>. 43; though 
 why it should he so held, it lias been remark- 
 ed, it is dj-ffiCUlt to see in view of the judicial 
 definitions Of the word "debenture" quoted 
 supra; Simonson, Debentures, i (and & 
 marks • North; .".7 Ch. 1 ». 2 
 
 but it need not be v- under the Bills 
 
 of sales Act; [1801] l Ch. (A. C.) 627; 
 2 Ch. 212. 
 
 A mere memorandum in writing by a 
 and fireclay working and brick-making com- 
 pany, of a deposit with bankers of I 
 as a security for balances due or to i • 
 thn\ but which did no, admit any S] 
 debt, or contain an agreement to pay other- 
 wise than by an agreement to ex© ate a legal 
 mortgage, was not a debenture; :;7 Ch. D. 
 281. 
 
 The act referred to speaks of "debentures 
 Issued . . . and secured upou," and an
 
 DEBENTURE 
 
 786 
 
 DEBET SINE BREVE 
 
 English writer of authority considers that 
 this means a horrowing money for the bene- 
 fit of several lenders; Buckley, Companies 
 Acts 170 ; but it has been held that the stat- 
 utory term debenture applied when there 
 wore several lenders but only one security 
 given for the benefit of all ; 36 Ch. D. 215 ', 
 it may consist of one document, not necessa- 
 rily of a series of documents; id.; and a 
 single security to a single lender, not pur- 
 porting in terms to be a debenture, was one 
 in law ; 37 Ch. D. 260. A security to a lend- 
 er on some part of a company's property is 
 not one, while an issue secured upon its en- 
 tire stock in trade and undertaking is, and 
 between these two is to be sought the line of 
 demarcation; Buckley, Companies Acts 172. 
 
 The remedy upon a default was formerly 
 by an action to realize the security commenc- 
 ed by one holder on behalf of all and the ap- 
 pointment of a receiver and manager to car- 
 ry on the business ; this was followed by a 
 winding up petition, but more recently the 
 proceeding has been for a decree of foreclo- 
 sure ; [1897] 1 Ch. 11. A power of sale may 
 be, and usually is, included in the trust deed; 
 13 L. Q. Rev. 424. 
 
 Debenture holders with a floating charge 
 were held to be superior to execution cred- 
 itors ; [1S91] 1 Ch. 627, C. A. 3 id. 260. 
 
 As to spent debentures, see Bonds. See 
 Covering Deed. See Promissory Notes as 
 to sealed debentures. 
 
 See Simonson, Debentures. 
 
 DEBENTURE BONDS. See Debentures. 
 
 DEBENTURE STOCK. An issue of stock 
 usually irredeemable and transferable in 
 any amount, not including a fraction of a 
 pound. 
 
 The terminability and fixity in amount of 
 debentures being inconvenient to lenders has 
 led to their being in many cases superseded 
 by debenture stock. Whart. Lex. 
 
 The issue of debenture stock is not borrow- 
 ing at all ; it is the sale, in consideration of 
 a sum of money, of the right to receive a per- 
 petual annuity ; 9 Ch. D. 337 ; Buckley, Com- 
 panies Acts 172 ; and none the less so if re- 
 deemable at the option of the company; id. 
 
 DEBET ET DETINET (L-at. he owes and 
 withholds). An action of debt is said to be in 
 the debet et detinct when it is alleged that 
 the defendant owes and unjustly withholds 
 or detains the debt or thing in question. The 
 action is so brought between the contracting 
 parties. See Detinet. 
 
 DEBET ET SOLET (Lat. he owes and is 
 used to). Where a man sues in a writ of 
 right or to recover any right of which he is 
 for the first time disseised, as of a suit at 
 a mill or in case of a writ of quod permittat, 
 he brings his writ in the debet et solet. Reg. 
 Orig. 144 a; Fitzh. N. B. 122, M. 
 
 DEBET SINE BREVE (Lat He owes 
 
 without declaration filed). Used in relation 
 to a confession of judgment. 
 
 DEBIT. A term used in book-keeping, to 
 express the left hand page of the ledger, or 
 of an account to which are carried all the 
 articles supplied or amounts paid on the sub- 
 ject of an account, or that are charged to 
 that account. 
 
 The balance of an account where it is 
 shows that something remains due to the par- 
 ty keeping the account. 
 
 An amount which is set down as a debt 
 or owing. 
 
 DEBITA LAICORUM (Lat). Debts of the 
 laity. Those which may be recovered in 
 civil courts. 
 
 DEBITUM IN PR/ESENTI SOLVENDUM 
 IN FUTURO (Lat). An obligation of which 
 the binding force is complete and perfect, 
 but of which the performance cannot be re- 
 quired till some future period. 
 
 DEBT (Lat. debere, to owe; debitum, 
 something owed). In Contracts. A sum of 
 money due by certain and express agreement. 
 3 Bla. Com. 154. See Fisher v. Consequa, 2 
 Wash. C. C. 386, Fed. Cas. No. 4,816. 
 
 All that is due a man under any form of 
 obligation or promise. Gray v. Bennett, 3 
 Mete. (Mass.) 522. See Appeal of City of 
 Erie, 91 Pa. 402. 
 
 Active debt. One due to a person. Used 
 in the civil law. 
 
 Ancestral debt. One of an ancestor which 
 the law compels the heir to pay. Watkins v. 
 Holman, 16 Pet (U. S.) 25, 10 L. Ed. 873; 
 A. & E. Encyc. 
 
 Doubtful debt. One of which the payment 
 is uncertain. Clef des Lois Romaines. 
 
 Fraudulent debt. A debt created by fraud 
 implies confidence and deception. It implies 
 that it arose out of a contract, express or im- 
 plied, and that fraudulent practices were em- 
 ployed by the debtor, by which the creditor 
 was defrauded. Howland v. Carson, 28 Ohio 
 St. 628. 
 
 Hypothecary debt. One which is a lien 
 upon an estate. 
 
 Judgment debt. One which is evidenced 
 by matter of record. 
 
 Liquid debt. One which is immediately 
 and unconditionally due. 
 Passive debt. One which a person owes. 
 Privileged debt. One which is to be paid 
 before others in case a debtor is insolvent. 
 The privilege may result from the character 
 of the creditor, as where a debt is due to the 
 United States; or the nature of the debt, as 
 funeral expenses, etc. See Preference; 
 Privilege; Lien; Priority; Distribution. 
 
 Specialty. A debt by specialty or special 
 contract is one whereby a sum of money be- 
 comes, or is acknowledged to be, due by deed 
 or instrument under seal; 2 Bla. Com. 465; 
 Probate Court for Dist of Orleans v. Child, 
 51 Vt 86.
 
 DEBT 
 
 787 
 
 DEBT 
 
 A debt may be evidenced by matter of 
 record, by a contract under seal, or by a sim- 
 ple contract. The distinguishing and i 
 sary feature is that a fixed and specific 
 amount is owing and no future valuation Is 
 required to settle- it; 3 Bla. Com. 154; Mat- 
 ter of Denny, 2 Hill (N. V.) 220. 
 
 See Accobd and Satisfaction; Bankrupt- 
 cy; Compensation; Confusion; Defeas- 
 ance; Delegation; Discharge of a Con- 
 tract: Extinction; Extinguishment; For- 
 mes Recovery; Lapse of Time; Novation; 
 Payment; Release; Kkscission; Sict-Off. 
 
 In Practice. A form of action which lies 
 to recover a sum certain. 2 Greenl. Ev. 27'J ; 
 Andr. Steph. PL 77, n. 
 
 It lies wherever the sum due is certain or ascer- 
 tained in such a manner as to be readily reduced to 
 a certainty, without regard to the manner in which 
 the obligation was incurred or is evidenced; Crock- 
 ett v. Moore, 3 Sneed (Tenn.) 145; Lee v. Gardiner, 
 26 Miss. 521 ; Home v. Semple, 3 McLean, 150, Fed. 
 Cas. No. 6,G."8 ; Dullard v. Bell, 1 Mas. 243, Fed. 
 Cas. No. 2,121; U. S. v. Claflin, 97 U. S. 546, 24 L. 
 Ed. 1082 ; Baum v. Tonkin, 110 Pa. 569, 1 Atl. 535. 
 
 It is thus distinguished from assumpsit, which lies 
 as well where the sum due Is uncertain as where it 
 is certain, and from covenant, which lies only upon 
 contracts evidenced in a certain manner. 
 
 It Is said to lie in the debet and dctinet (when It 
 is stated that the defendant owes and detains) or In 
 the detinet (when it is stated merely that he de- 
 tains). Debt in the detinet for goods difters from 
 detinue, because it is not essential in this action, as 
 in detinue, that 'the specific property in the goods 
 should have been vested in the plaintiff at the time 
 the action is brought. Dy. 24 b. 
 
 It is used for the recovery of a debt eo nomine 
 and in nume.ro; though damages, which are In 
 most instances merely nominal, are usually award- 
 ed for the detention ; 1 H. Bla. 550 ; Cowp. 588. 
 
 The action lies in the debet and detinet 
 to recover money due, on a record or a judg- 
 ment of a court of record; Salk. 109; Eby 
 v. Burkbolder, 17 S. & R. (Pa.) 9; Allen v. 
 Lyman, 27 Vt. 20; Austin v. Townes, 10 
 Tex. 24; although a foreign court; Moore 
 v. Adie's Adm'r, 18 Ohio 430; Mclntire v. 
 Caruth, 3 Brev. (S. C.) 393; Jordan v. Robin- 
 son, 15 Me. 167; Cole v. Drlskell, 1 Black! 
 (Ind.) 16; Williams v. Preston, 3 J. J. .Mar. 
 (Ky.) 600, 20 Am. Dec. 179: MeKim v. Odom, 
 12 Me. 94 ; on statutes at the suit of the par- 
 ty aggrieved; Vaughan v. Thompson, 15 111. 
 39; Morrison v. Bedell, 22 N. H. 234; Gar- 
 man v. Gamble, 10 Watts (Pa.) 3S2 ; Israel 
 v. President, etc., of Town of Jacksonville, 
 1 Scam. (111.) 290; Falconer v. Campbell, 2 
 McLean, 19.",, Fed. Cas. No. 4,620; Reed v. 
 Davis. 8 Tick. (Mass.) 514; Chaffee v. U, S., 
 IS Wall. (U. S.) 516, 21 L. Ed. 90S; or a com- 
 mon informer ; Lewis v. Stein, 16 Ala. 21 4, 
 50 Am. Dec. 177; Sims v. Alderson, 8 Leigh 
 (Va.) 479; including awards by a statutory 
 commission; Knowles v. Inhabitants of East- 
 ham, 11 Cush. (Mass.) 429; on specialties; l 
 Term 40; Little v. Mercer, 9 Mo. 21S; Salter 
 v. Richardson, 37 B. Monr. (Ky.) 201; Allen 
 v. R. Co., 32 N. II. 440; Nash v. Nash, 16 
 ill. 79; including a recognizance; Dowlin v. 
 Standifer, 1 Hempst. 290, Fed. Cas. No. 
 
 -l.oila; Bentley v. Lyman, 21 Conn. 81; 
 
 State v. I 
 
 People, 15 111. 2-1 : 
 
 (Mass.) 138; Nesl Itt v. 
 
 on a promissory now 
 
 Ark. 165 ; Loose v. I on a 
 
 bill of exchange; Hoi tb v. Mill 
 
 Leigh i Va.) 50 ; on t < 
 
 express ; L e v. < iardiner, 26 .'■• 
 
 day v. BiOOre, 17 Ala. 8 
 
 Humphr. (Tenn.) 4 30 ; although tb i ■ 
 
 might have been d . on or I 
 
 the day of payment in a rtic 
 
 Eoung v. Hawkins, i Xerg. (Tenn.) 171; 
 or Implied; Bull X. P. ic.7: Van D 
 Blum. 18 Tick. i.M 
 582; Thompson v. French, 10 Ye: 
 452; Houghton v. Stowell, 28 Me. 215; 
 lingham v. Skein, 1 Hempst 181, Fed. I 
 No. 3,912a; Cray v. Johnson, 11 N. H. 414; 
 to recover a specific reward off< 
 borough v. Outcalt, 1 N. J. Eq. 310. An ac- 
 tion of debt is the proper remedy of a land- 
 lord against bis tenant in p. 
 cover a statutory penalty for will fully cut- 
 ting trees without the owner's consenl ; Sog- 
 ers v. Brooks. 99 Ala. 31, 11 South, 
 and also in favor of the beneficiaries in a 
 certificate of membership in a mutual benefit 
 association; Abe Lincoln Mut. Life & 
 dent Society v. Miller, 23 111. App. 341; but 
 it does not lie on a decree of foreclosure 
 which orders the money secured by the 
 mortgage to be paid, or in default t: 
 the mortgaged premises to be sold and the 
 Is paid into court; Burges v. Souther. 
 15 R. I. 202, 2 Atl. 441. 
 
 It lies in the detinet for goods; Dy. - 
 Dowlin v. Standifer, 1 Hempst 290, F< I 
 Cas. No. 4,041a; Snell v. Kirby. 8 Mo. 21. 22 
 Am. Dec. 45(1: and by an executor for money 
 due the testator; 1 Wms. Saund. 1 
 Brown's Adm'r v. Brown, 10 B. Monr. (Ky.) 
 247; or against him on the testator's 
 tracts; Childress v. Emory, 8 Wheat (U. B 
 642, 5 L. Ed. 70."-. 
 
 The declaration, when the action is found 
 ed on a record, need not sideration. 
 
 When it is founded on a ' '. it must 
 
 contain -the specialty ; Huher v. Burke, 11 S. 
 & B. (Pa.) 238; bul need nol i 
 tion; Nash v. Nash. 16 111. 7'.'; Barrett v. 
 Carden, 65 Vt. 431, 26 Atl. 530, 36 Am. Bt 
 Bep. N70; but when the action is for rent. 
 the deed need not be declared on; Cray v. 
 Johnson, 14 N. II. 414. When it is founded 
 on a Simple contract the consideration must 
 be averred: and a liability or agreement, 
 though not necessarily an express promise 
 to pay, must be stated; 2 Term 28, 30. 
 
 The plea of nil debet is ti • issue 
 
 when the action is on a simple contract on 
 statutes, or where a specialty is matter of 
 inducement merely; Stilson v. Tol 
 Mass. 521; Minton v. Woodwurth, 11 Johns. 
 (N. Y.) 474; King v. Ramsay, 13 111. 619;
 
 DEBT 
 
 788 
 
 DEBTOR'S SUMMONS 
 
 McConnell v. Bank, 6 Ark. 250; Dyer v. 
 Cleaveland, 18 Vt. 241; U. S. v. Cumpton, 
 3 McLean 163, Fed. Cas. No. 14,902; Hyatt 
 v. Robinson, 15 Ohio 372; Trustees of Dart- 
 mouth College v. Clough, 8 N. H. 22; Clark 
 v. Mann, 33 Me. 268; Stipp v. Cole, 1 Ind. 
 146; Matthews v. Redwine, 23 Miss. 233. 
 Non est factum is the common plea when 
 on specialty, denying the execution of the 
 instrument; 2 Ld. Raym. 1500; Chambers v. 
 Games, 2 G. Greene (la.) 320; Brooks v. 
 Bobo, 4 Strobh. (S. C.) 38; People v. Row- 
 land, 5 Barb. (N. Y.) 449 ; Brobst v. Welker, 
 8 Pa. 467; Utter v. Vance, 7 Blackf. (Ind.) 
 514; Boynton v. Reynolds, 3 Mo. 79; and 
 nul tiel record when on a record, denying 
 the existence of the record ; Mervin v. Kum- 
 bel, 23 Wend. (N. Y.) 293 ; Hall v. Williams, 
 
 6 Pick. (Mass.) 232, 17 Am. Dec. 356. As 
 to the rule when the judgment is one of 
 another state, see Clark v. Mann, 33 Me. 
 26S; Williams v. Preston, 3 J. J. Marsh. 
 (Ky.) 600, 20 Am. Dec. 179; Mills v. Duryee, 
 
 7 Cra. (U. S.) 481, 3 L. Ed. 411; Town of 
 St. Albans v. Bush, 4 Vt. 5S, 23 Am. Dec. 
 246; Lanning v. Shute, 5 N. J. L. 778; 
 Clarke's Adm'r v. Day, 2 Leigh (Va.) 172; 
 as well as the titles Foreign Judgment, Con- 
 flict of Laws. 
 
 As to the situs of a debt in attachment 
 and garnishment proceedings, see Lex Rei 
 
 SlT.E. 
 
 Other matters must, in general, be plead- 
 ed specially; Hays v. Muir, 1 Ind. 174. 
 
 The judgment is, generally, that the plain- 
 tiff receive his debt and costs when for the 
 plaintiff, and that the defendant receive his 
 costs when for the defendant; Chapman v. 
 Wright, 20 111. 120; Rutter v. State, 1 la. 
 99; Downs v. Ladd, 4 How. (Miss.) 40. It 
 is reversible error to render judgment not 
 only for the debt sued on, but for damages, 
 as in assumpsit and for interest on the judg- 
 ment; Reece v. Knott, 3 Utah 451, 24 Pac. 
 757. See Judgment. 
 
 DEBTEE. One to whom a debt is due; 
 a creditor : as, debtee executor. 3 Bla. Com. 
 
 IS. 
 
 DEBTOR. One who owes a debt; he who 
 may be constrained to pay what he owes. 
 
 DEBTOR'S ACT, 1869. The statute 32 & 
 33 Vict. c. 62, abolishing imprisonment for 
 debt in England, and for the punishment of 
 fraudulent debtors. 2 Steph. Com. 159-164. 
 (Not to be confounded with the Bankruptcy 
 Act of 1869.) Mozl. & W. Diet 
 
 DEBTOR'S SUMMONS. In English Law. 
 
 A summons issuing from a court having ju- 
 risdiction in bankruptcy, upon the creditor 
 proving a liquidated debt of not less than 
 £50, which he has failed to collect after 
 reasonable effort, stating that if the debtor 
 fail, within one week if a trader, and with- 
 in three weeks if a non-trader, to pay or 
 compound for the sum specified, a petition 
 
 may be presented against him, praying that 
 he may be adjudged a bankrupt Bkcy. Act 
 1869, s. 7; Robson, Bkcy.; Mozl. & W. Diet 
 
 DECALOGUE. The ten commandments. 
 
 DECANATUS, DECANIA, DECANA (Lat). 
 A town or tithing, consisting originally of 
 ten families of freeholders. Ten ti things 
 compose a hundred. 1 Bla. Com. 114 ; Med- 
 ley, Orig. Illus. Eng. Const Hist. 
 
 Decanatus, a deanery, a company of ten. 
 Spelman, Gloss. ; Calvinus, Lex. 
 
 Decania, Decana, the territory under the 
 charge of a dean. 
 
 DECANUS (Lat.). A dean; an officer 
 having charge of ten persons. In Constan- 
 tinople, an officer who has charge of the 
 burial of the dead. Nov. Jus. 43, 59 ; Du 
 Cange. The term is of extensive use, being 
 found with closely related meanings in the 
 old Roman, the civil, ecclesiastical, and old 
 European law. It is used of civil and eccle- 
 siastical as well as military affairs. There 
 were a variety of decani. 
 
 Decanus monasticus, the dean of a mon- 
 astery. 
 
 Decanus in majori ecclesia, dean of a 
 cathedral church. 
 
 Decanus mllitaris, a military captain of 
 ten soldiers. 
 
 Decanus episcopi, a dean presiding over 
 ten parishes. 
 
 Decanus friborgi, dean of a fribourg, tith- 
 ing, or association of ten inhabitants. A 
 Saxon officer, whose duties were those of an 
 inferior judicial officer. Du Cange; Spel- 
 man, Gloss. ; Calvinus, Lex. 
 
 DECAPITATION (Lat. de, from, caput, a 
 head). The act of beheading. In some coun- 
 tries a method of capital punishment See 
 Capital Punishment. 
 
 DECEDENT. A deceased person. 
 
 The signification of the word has become mora 
 extended than its strict etymological meaning. 
 Strictly taken, It denotes a dying person, but is al- 
 ways used in the more extended sense given, denot- 
 ing any deceased person, testate or intestate. 
 
 See Executobs and Administrators. 
 
 DECEIT. A fraudulent misrepresentation 
 or contrivance, by which one man deceives 
 another, who has no means of detecting the 
 fraud, to the injury and damage of the lat- 
 ter. It need not be made in words, if the 
 impression be made on the mind of the oth- 
 er party, upon which he acts, without the 
 exact expression in words of the understand- 
 ing sought to be created ; 17 C B. n. s. 482 ; 
 Mizner v. Kussell, 29 Mich. 229. Suspicion 
 by the maker that his statements are false 
 is the legal equivalent of knowledge of their 
 falsity and fraudulency; Shackett v. Bick- 
 ford, 74 N. H. 57, 65 Atl. 252, 7 L. R. A. 
 (N. S.) 646, 124 Am. St. Rep. 933. 
 
 Fraud, or the intention to deceive, Is the 
 very essence of this injury ; Stewart v. 
 Ranch Co., 128 U, S. 383, 9 Sup. Ct 101, 32
 
 DECEIT 
 
 789 
 
 DECEIT 
 
 L. Ed. 439; for if the party misrepresenting 
 was himself mistaken, no blame can attach 
 to him; Poll. Torts 352; Farmers' Stock- 
 Breeding Ass'n v. Bcott, 53 Kan. 534, 36 Pac. 
 07* ; Wachsmuth v. Wachsmuth, 45 ill. App- 
 244. The representation must be made mala 
 annuo; but whether or not the party is him- 
 self to gain by it is wholly Immaterial. 
 
 It may be by the deliberate assertion of 
 a falsehood to the injury of another, by fail- 
 ure to disclose a latent defect, or by con- 
 cealing an apparent defect; but, as a rule, 
 mere silence on the part of one party to a 
 transaction as to facts which are important 
 to the other is not deceit, if lie is under no 
 obligation to disclose them; Big. Torts 12; 
 L. R. II. L. 377. 
 
 Where the seller asked the buyer whether 
 there was any news (of the treaty of Peace 
 in 1815) that would 'enhance the price of 
 tobacco and the buyer remained silent, it 
 should have gone to the jury t<> say whether 
 any imposition was practised, the court say- 
 ing that while the buyer need not, as matter 
 of law, communicate special information 
 known only to him, he must take care not 
 to impose on the seller; Laidlaw v. Organ, 2 
 Wheat. 178, 4 L. Ed. 214. In U. S. v. Bell Tel- 
 ephone Co., 128 ! :. S. 323, 9 Sup. Ct. 90, 32 
 L. Ed. 450, it was held that if, with intent 
 to deceive, either party to a contract of 
 sale conceals or suppresses a material fact 
 which he is in good faith bound to disclose, 
 that is evidence of or equivalent to a false 
 representation. General assertions, by a ven- 
 dor or lessor, that the property offered for 
 sale or to be leased is valuable or very valu- 
 able, although, such assertions turn out to 
 be untrue, are not misrepresentations 
 amounting to deceit, nor are they to be re- 
 garded as statements of existing facts, upon 
 which an action of deceit may be based, 
 but rather as expressions of opinions or be- 
 liefs; Lehigh Zinc & Iron Co. v. Bamford, 
 150 U. S. 665, a 4 Sup. Ct. 219, 37 L. Bd. 
 1215; or as prophecies as to financial pros- 
 perity; Kimber v. Young, 137 Fed. 744, 70 
 C. C. A. 178; Deming v. Darling, 14S Mass. 
 504. 20 N. E. 107. 2 L. R. A. 743. 
 
 The party deceived must have been in a 
 situation such as to have no means of de- 
 tecting the deceit. But see Carpenter v. 
 Wright, 52 Kan. 221, 34 Pac. 798. 
 
 A person cannot sustain an action for de- 
 ceit where no harm comes to him ; Alden v. 
 Wright, 47 Minn. 225, 49 N. W. 707; Roonie 
 v. Jennings, 2 Misc. 257. 21 N. Y. Supp. 938, 
 nor can he where he does not rely on the 
 misrepresentations; Fowler v. McCann, SO 
 Wis. 427, 50 N. W. 1085. 
 
 In order to constitute deceit it is neces- 
 sary either that the false representations 
 should be known by the person making them 
 to be untrue, or that he should have no rea- 
 son to believe them true. Mere ignorance 
 .of their falsity is no excuse: Burge v. Stro- 
 berg, 42 Ga. SS; see Carondelet Iron Works 
 
 v. Moore, 78 111. 65; Hess v. Young, 59 Ind. 
 379; Cooper v. Loverlng, loo Mas& 77; B 
 v. Knapp, 2.S Mich. 52 ; Xewell v. Horn, 45 
 N. II. 422; Long v. Warren, 68 X. V 
 Deceit may be committed not only with the 
 careful intention of one who knows what he 
 -. to be true or false, but also with 
 the reckless intention of one who does not 
 know what he represents to be tru 
 but who, for one reason or another, i> will- 
 ing that his reckless representations should 
 he believed; Stimson v. Helps. 9 Colo. ■ 
 Pac. 290; Smith v. Richards, 13 P 
 26, Pi Lb Ed. -12; Busterud v. Farrington, 
 36 Minn. 32$, 31 .V W. 360. 
 
 The mere expression of opinion is Q< 
 ceit, though untrue and made in most posi- 
 tive Language; '•> T. B. 51 ; 2 Basl 92; Credle 
 v. Swindell, 02 N. C. 305; Hazard v. Irwin. 
 18 Pick. (Mass.) 95; but the expression of 
 opinion as knowledge may render oue liable 
 for fraud; Cabot v. Christie, 42 Yt. 121, 1 
 Am. Rep. 313 ; or where the means of form- 
 ing a correct opinion are within the reach of 
 one party only; liedin v. Medical & Surgical 
 Institute. 02 Minn. 140, 04 N. W. 158, 35 L. 
 R. A. 417, 54 Am. St. Rep. 628; and the rule 
 has been avoided by the court's finding in 
 a statement of opinion some implied repre- 
 sentation of fact; Spead v. Tomlinson, 72 
 N. II. 40, 59 At I. 376, 68 L K. A. 432. Thus 
 a cattle-dealer who expresses an apparent 
 opinion as to the weight of cattle he <. 
 to sell, knowing it to be untrue, is guilty of 
 deceit; Birdsey v. Butterfield, •"-! Wis. 02. 
 
 Though false representations as to the 
 value of land are not alone sufficient t 
 tain an action for damages, yet if made in 
 connection with others as to the net revenues 
 derived, they are sufficient to support such 
 an action; Henderson v. Henshall, 54 Fed. 
 320, 4 C. C. A. 357; and an action for false 
 representation as to title, in a sale of lands, 
 may be maintained though the deed contains 
 no covenants; Barnes v. lc Fed. 
 
 87, 4 C. C. A. l!i'.). 
 
 An action for deceit can only be I 
 upon the misrepresentation of matte 
 fact, not of mailers of law; unless the party 
 who made the misrepresentation did it with 
 knowledge both of the law and of the ether's 
 ignorance of it; Townsend v. Cowles. 21 Ala. 
 434; Dillman v. Nadlehoffer, 119 in. ''^. 
 7 X. E. 88; Burt v. Bowles. 69 ind. 1; L. 
 R. 4 Ch. D. 702; Moreland v. Atchison, 19 
 Tex. 303; Upton v. Tribilcock, 91 0. B. 45, 
 23 I.. 1-M. 203. 
 
 If the party complaining of misrepn • 
 had the same sources of infori: 
 as the one who made them, he must avail 
 himself of his means of knowledge, or he 
 cannot recover; slaughter v. Gerson, 13 
 Wall. (F. S.) 379, 20 L Ed. 0'J7 ; Brown v. 
 Leach, 107 Ma>s. 364; Pigutt v. Graham, 
 18 Wash. 348, :»•': Pic 135, U L. R. A. (N. S.i 
 1176; Famsworth v. Duffner, 142 IT. s. 42,, 
 12 Sup. Ct 101, 35 L Ed. 931; Warner v.
 
 DECEIT 
 
 790 
 
 DECEIT 
 
 Benjamin, 89 Wis. 290, 62 N. W. 179. A 
 clause in a contract providing that the plain- 
 tiff should verify defendant's plans does not 
 as a matter of law bar the plaintiff's recov- 
 ery; but whether or not the plaintiff acted 
 in reliance on the defendant's plans is a 
 question for the jury ; [1907] A. C. 351. 
 
 But a contracting party may rely upon 
 express statements of fact, the truth of 
 which is known or presumed to have been 
 known to the other party, even where the 
 means of information are open to him; Big. 
 Torts 26 ; especially when the representation 
 has a natural tendency to prevent investiga- 
 tion or is made the basis of the contract; 
 id.; where one contracting party has a men- 
 tal or physical infirmity, or where the par- 
 ties do not stand upon an equal footing, the 
 duty of investigating the truth of statements 
 may be less ; id. 28. 
 
 The plaintiff must also have acted upon 
 the representation, and sustained injury by 
 so doing; 4 H. & N. 225; Wells v. Water- 
 house, 22 Me. 131; Lindsey v. Lindsey, 34 
 Miss. 432; Phipps v. Buckman, 30 Pa. 401; 
 Enfield v. Colburn, 63 N. H. 218; and they 
 must have been made to him ; Iasigi v. 
 Brown, 17 How. (U. S.) 183, 15 L. Ed. 208; 
 Lindsey v. Lindsey, 34 Miss. 432 ; Hunnewell 
 v. Duxbury, 154 Mass. 2S6, 28 N. E. 267, 13 
 L. B. A. 733. One who purchases stock in 
 the market, upon the faith of a prospectus 
 received from persons not connected with the 
 corporation, cannot enforce a liability against 
 the directors for false representations there- 
 in; L. R. 6 H. L 377; but where a prospec- 
 tus is put out by a company to sell its stock, 
 any one of the public may act on it; Big. 
 Torts 33. 
 
 The false representations upon which de- 
 ceit is predicated must also, in order to sup- 
 port the action, be material and relevant, 
 and be the determining factor of the trans- 
 actions; L. R. 2 Ch. 611; 5 De G., M. & G. 
 126 ; Bond v. Ramsey, 89 111. 29 ; Noel v. Hor- 
 ton, 50 la. 687; Teague v. Irwin, 127 Mass. 
 217 ; Miller v. Barber, 66 N. Y. 558. It must 
 appear that the fraud was an inducing cause 
 of the contract; 9 App. Cas. 190. 
 
 Where the effect of the misrepresentations 
 was to bring the parties into relations with 
 each other, express evidence of an intent to 
 defraud is unnecessary ; but where by false 
 representations one suffers damage in a 
 transaction with a third person, there must 
 be express evidence that the party making 
 the representation intended it to be acted 
 on, or that the plaintiff was justified in as- 
 suming that he so intended; Big. Torts 31. 
 It is sufficient if the representation was 
 made with the direct intent that it should 
 be communicated to the plaintiff, or to a 
 class of which he was one ; L. R. 6 H. L. 377. 
 
 In order to sustain an action for deceit 
 there must be proof of fraud and nothing 
 short of that will suffice. Secondly. Fraud 
 is proved when it is shown that a false rep- 
 
 resentation has been made (1) knowingly, or 
 (2) without belief in its truth, or (3) reck- 
 lessly careless whether it be true or false ; 
 Lord Herschell, in Derry v. Peek, 14 App. 
 Cas. 337. Although treating the second and 
 third as distinct cases, he says: "I think the 
 third is but an instance of the second, for 
 one who makes a statement under such cir- 
 cumstances can have no real belief of the < 
 truth of what he states. To prevent a false 
 statement being fraudulent, there must, I 
 think, always be an honest belief in its 
 truth and this probably covers the whole 
 ground, for one who knowingly alleges that 
 which is false has obviously no such honest 
 belief. Thirdly. If fraud be proved, the mo- 
 tive of the guilty person is immaterial. It 
 matters not that there was no intention to 
 cheat or to injure the person to whom the 
 statement was made."* In that case (Derry 
 v. Peek) a special act incorporating a tram- 
 way company provided that carriages might 
 be moved by animal power and, with the 
 consent of the Board of Trade, by steam 
 power. The directors issued a prospectus 
 containing a statement that by their special 
 act the company had a right to use steam 
 power, which statement was made in the 
 honest belief that it was true, and the Board 
 of Trade having refused their consent to the 
 use of steam power, persons who had taken 
 shares on the faith of the statement brought 
 an action of deceit against the directors; the 
 House of Lords, reversing the Court of Ap- 
 peal, held that the defendants were not 
 liable. 
 
 In an action of deceit the plaintiff must 
 prove that the untrue statement of the de- 
 fendant was made with a fraudulent intent ; 
 [1912] A. C. 186. It is not sufficient that 
 there is blundering carelessness, however 
 gross, unless there is willful recklessness ; 
 [1S91] 2 Ch. 449. Recklessly making a state- 
 ment, intending it to be acted upon, not car- 
 ing whether it is true or false, may be said 
 to show that a man has a wicked mind and 
 is acting fraudulently; [1S93] 1 Q. B. 491, 
 Lord Esher, M. R. His mind is wicked not 
 because he is negligent, but because he Is 
 dishonest in not caring about the truth of 
 his statement ; id., per Bowen, L. J. ; Shack- 
 ett v. Bickford, 74 N. H. 57, 65 Atl. 252, 7 
 L. R. A. (N. S.) 646, 124 Am. St. Rep. 933; 
 the grounds of belief and the means of 
 knowledge in possession of the person mak- 
 ing the statement are to be considered in de- 
 termining the honesty of the belief; Hind- 
 man v. Bank, 112 Fed. 931, 50 C. C. A. 623, 
 57 C. C. A. 108. 
 
 Derry v. Peek was followed in Kountze v. 
 Kennedy, 147 N. Y. 124, 41 N. E. 414, 29 
 L. R. A. 360, 49 Am. St. Rep. 651, where it 
 was held that where an act is attributable 
 to an honest belief, a fraudulent intent is 
 lacking and a charge of deceit fails. In 
 Watson v. Jones, 41 Fla. 241, 25 South. 678,^ 
 the leading English case was not followed;
 
 DECEIT 
 
 791 
 
 DECJ.IT 
 
 it was there held that the defendant's situa- 
 tion or means of knowledge made it his duty 
 to know; to the same effect, Beale v. B 
 70 Tex. 283, 7 S. \\ . 742, S Am. St. Hep. B92; 
 Munroe v. Pritchett, 10 Ala. 785, 50 Am. Dec. 
 203; Jordan v. Pickett, 78 Ala. 331; Johnson 
 v. Gulick, 46 Neb. 817, 05 N. W. 883, 50 Am. 
 St. Rep. 629. 
 
 There may be a duty to use care in the 
 accuracy of representations where the plain- 
 tiffs are reasonable in relying apon them 
 and the defendants knew that they would do 
 so and would he damaged if such represen- 
 tations were false; Harriott v. Plimpton, 166 
 Mass. 585, 44 N. E. 992; Edwards v. Lamb, 
 69 N. II. 599, -15 Atl. 480, 50 L. It. A. 100; 
 L. R. 5 Exch. 1. 
 
 As society becomes more complex and the 
 consequences of negligence more far reach- 
 ing, the obligation of using care becomes 
 stricter in morals, and will, have to become 
 stricter in law, notwithstanding Deny v. 
 Peek ; 7 L. Q. R. 107. See 14 Ilarv. L. R. 184, 
 as to liability for the negligent use of lan- 
 guage. 
 
 In iXash v. Trust Co., 103 Mass. 574, 40 N. 
 E. 1030, 28 L. It. A. 753, 47 Am. St. Rep. 4S9, 
 it was held that a defendant who had writ- 
 ten a letter reasonably to be understood as 
 warranting a title, might show that the let- 
 ter was intended to convey another meaning. 
 Field, (J. J., and Holmes, J., dissented, ar- 
 guing, as does Sir Frederic Pollock in 5 L. 
 Q. R. 410, that a man should be bound by 
 a reasonable interpretation of his words 
 when he knows others will act upon them. 
 See 9 Harv. L. Rev. 214. 
 
 One who makes a representation positive- 
 ly, without knowing whether it is false or 
 true, is liable for deceit; L. R. 7 H. L. 102; 
 Stone v. Corell, 29 Mich. 359. 
 
 To tell half the truth and to conceal the 
 other half, amounts to a false statement, 
 and differs in no respect from the < 
 false representations; Mitchell v. McDougaR, 
 62 111. 501; Stewart v. Kanche Co., 128 I '. S. 
 383, .'188, 9 Sup. Ct. 101, 32 L. Ed. 439: Wil- 
 liams v. Spurr, 24 Mich. 335 ; L. K. II. L. 
 403; Mallory v. Leach, 35 Vt. 150, 82 Am. 
 Dec. 625. 
 
 An action of tort for deceit in the sale 
 of property does not lie for false and fraud- 
 ulent representations concerning profits that 
 may be made from it in the future ; Pedrick 
 v. Porter, 5 Allen (Mass.) 324. 
 
 While an honest belief in the truth of rep- 
 resentations Is a defence to an action for de- 
 ceit at common law, it is no defence to a 
 bill in equity to set aside the transaction; 
 7 Beav. 149; Seeley v. Reed, 25 Fed. 361; 
 Kyle v. Kavanagh, 103 Mass. 356, 4 Am. 
 Rep. 500. It is also a ground for objecting 
 to the enforcement of the contract, and 
 even for a rescission of the contract upon 
 the ground of mistake; Big. Torts -'■',. 
 
 Private corporations are held liable for 
 the wrongful acts and neglect of their agents 
 
 or servants, done in the course of their em- 
 ployment ; Lamm v. Homes! a, 49 
 AM. 241, 33 Am. Hep. 246. in 1 the 
 rule is that if the person has been induced 
 to purchase shares of a corpi 
 
 otatlons of its directors a. 
 damage thereby, he must bring an 
 deceit against such din 
 while in the U. S. it seems to be the rule 
 that a corporation may be sued in such 
 gg v. Griffin, 2 Allen (Mass.) 1; 
 Peebles v. Guano Co.,' 77 X. C. 233, 24 Am. 
 Rep. 447; Zabriskie v. R. Co., 23 I I 
 
 1, 16 L. Ed. 488; Planters' Rice-Mill 
 Co. v. Olmstead, 78 Ga, 586, 3 8. E, 017; 
 Moran V. Miami County, 2 Black (U. S.) 722, 
 17 L. Ed. 342; Kennedy v. McKay. 43 N. J. 
 L. 288, 39 Am. Rep. 581. "If the director of 
 a company puts shares forth into the world, 
 and deliberately adopts a scheme of false- 
 hood and fraud, the effect of which is that 
 parties buy the shares in consequence of the 
 falsehood," the action for deceit lies; Pol- 
 lock, C. B., in 4 II. & N. 538; 2 Q. B. D. 48. 
 See also 2 M. & W. 519; 3 B. & Ad. 114. 
 
 The general principles on which the right 
 of action for deceit is based are thus stated 
 in Webb's Poll. Torts 355: 
 
 "To create a right of action for deceit 
 there must be a statement made by the de- 
 fendant, or for which he is answerable as 
 principal, and with regard to that statement 
 all the following conditions must concur: 
 
 "It is untrue in fact. 
 
 "The person making the statement, or the 
 person responsible for it. either knows it to 
 be untrue, or is culpably ignorant (that is, 
 recklessly and consciously ignorant) whether 
 it be true or not. 
 
 "It is made to the intent that the plaintiff 
 shall act upon it, or in a manner apparently 
 fitted to induce him to act upon it. 
 
 "The plaintiff does act in reliance on the 
 statement in the manner contemplated or 
 manifestly probable, and thereby Buffers 
 damage. 
 
 "There is no cause of action without both 
 fraud and actual damage, or the damage is 
 the gist of the action. 
 
 "And according to the general principles 
 of civil liability, the damage must be the 
 natural and probable consequence of the 
 plaintiff's action on the faith of the defend- 
 ant's statement. 
 
 "The statement must be in writing and 
 signed in one class of cases, namely, w> 
 amounts to a guaranty: but this requirement 
 is statutory, and as it did not apply to the 
 court Of chancery, does not seem to apply to 
 the high court of justice in its equitable 
 jurisdiction." 
 
 The remedy for a deceit, unless the right 
 of action has been suspended or disc h arged, 
 is by an action of trespass on the case. The 
 old writ Of deceit was brought for acknowl- 
 edging a line, or the like, in another name, 
 and, this being a perversion of law to an
 
 DECEIT 
 
 792 
 
 DECEIT 
 
 evil purpose and a high contempt, the act 
 was laid contra pacem, and a tine imposed 
 upon the offender. See Brooke, Abr. Dis- 
 ceit ; Viner, Abr. Disceit. 
 
 When two or more persons unite in a de- 
 ceit upon another, they may be indicted for 
 a conspiracy. See, generally, 1 Itolle, Abr. 
 106; Com. Dig.; 1 Viner, Abr. 560; 8 id. 490; 
 Bigelow, Torts 9 ; Cooley, Torts 554. 
 
 It has been held that an action will not 
 lie for fraudulent misrepresentations of a 
 vendor of real estate as to the price he paid 
 therefor; Mooney v. Miller, 102 Mass. 217; 
 Schumaker v. Mather, 133 N. Y. 590, 30 N. E. 
 755; Wilkinson v. Clauson, 29 Minn. 91, 12 
 N. W. 147; Hartman v. Flaherty, 80 Ind. 
 472 ; nor ordinarily for false statements 
 as. to value of stock ; Ellis v. Andrews, 56 N. 
 Y. S3, 11 Am. Rep. 379; Boulden v. Stil- 
 well, 100 Md. 543, 60 Atl. 609, 1 L. R. A. (N. 
 S.) 258, nor for a false certificate of classi- 
 fication of a sailing yacht; 60 L. J. Q. B. 526; 
 nor a representation that a stallion would 
 not produce sorrel colts; Scroggin v. Wood, 
 87 la. 497, 54 N. W. 437; nor generally for 
 a broken promise ; Fenwick v. Grimes, 5 Cra. 
 C. C. 603, Fed. Cas. No. 4734; Dickinson v. 
 Atkins, 100 111. App. 401; Cerny v. Faxton 
 & Gallagher Co., 78 Neb. 134, 110 N. W. 882, 
 10 L. R. A. (N. S.) 640; Curdy v. Berton, 79 
 Cal. 425, 21 Pac. 858, 5 L. R. A. 189, 12 Am. 
 St. Rep. 157. In Harrington v. Rutherford, 
 3S Fla. 321, 21 South. 283, the rule was fol- 
 lowed, though the promise was broken with- 
 out excuse. A fraudulent representation, 
 to vitiate a contract induced by it, is a rep- 
 resentation of a past or existing fact, but 
 a promise is not a representation, and, when 
 not a part of the contract, will not affect it ; 
 Estes v. Shoe Co., 155 Mo. 577, 56 S. W. 316; 
 and there is a distinction between a repre- 
 sentation of an existing fact which is un- 
 true, and a promise to do or not to do 
 something in the future. In order to avoid 
 a contract, the former must be relied upon ; 
 Sleeper v. Wood, 60 Fed. 888, 9 C. C. A. 289 ; 
 McConnell v. Pierce, 116 111. App. 103; Love 
 v. Teter, 24 W. Va. 741. If deceit, in order 
 to be actionable, must relate to existing or 
 past facts, it is evident that a promise made 
 in the course of negotiations, if never per- 
 formed, is not of itself either fraud or the 
 evidence of fraud; Hubbard v. Long, 105 
 Mich. 442, 63 N. W. 644. Many cases hold 
 that a promise made without intent to per- 
 form, and with the secret intent not to per- 
 form, is fraudulent, and that an action of 
 deceit will lie; Traber v. Hicks, 131 Mo. 180, 
 32 S. W. 1145; Dowd v. Tucker, 41 Conn. 
 197; Cerny v. Paxton & Gallagher Co., 78 
 Neb. 134, 110 N. W. SS2, 10 L. R. A. (N. S.) 
 640. A promise to do an act in the future 
 certainly carries with it a representation of 
 present intention to perform ; see 9 Harv. 
 L. Rev. 424; and that "a representation of 
 present intention is a statement of fact has 
 rarely been disputed since Bowen, L. J., 
 
 declared in L. R. 29 Ch. Div. 459, that 'the 
 state of a man's mind is as much a fact as 
 the state of his digestion.' If, then, this 
 misrepresentation of a present fact is ac- 
 companied by the other elements of deceit, 
 it seems clear, on principle, that the action 
 should be allowed;" see 9 Harv. L. Rev. 424; 
 Bigelow, Fraud 484. 
 
 It is, too, generally held that a precon- 
 ceived design in a buyer not to pay for the 
 goods is such fraud as will vitiate the sale; 
 Stewart v. Emerson, 52 N. H. 301. The real 
 fraud is the express or implied false repre- 
 sentation of an intention to pay; Ayres v. 
 French, 41 Conn. 142; Chicago, T. & M. C. 
 Ry. Co. v. Titterington, 84 Tex. 218, 19 S. 
 W. 472, 31 Am. St. Rep. 39; Goodwin v. 
 Home, 60 N. H. 485; Wilson v. Eggleston, 
 27 Mich. 257 ; Gross v. McKee, 53 Miss. 536. 
 
 It has been held that an action for de- 
 ceit would lie for breach of promise of 
 marriage; Pollock v. Sullivan, 53 Vt. 507, 
 38 Am. Rep. 702, where the defendant was 
 married at the time. An action for deceit 
 will lie against one who fraudulently induces 
 a woman to enter into a void marriage re- 
 lation with him, by assurances that an 
 existing marriage with another is void : 
 Sears v. Wegner, 150 Mich. 388, 114 N. W. 
 224, 14 L. R. A. (N. S.) 819. 
 
 "Treating a promise to perform some act 
 in the future as a statement of intention, 
 and treating intention as an existing fact, it 
 follows that if at the time the promise was 
 made there was an intention to perform, 
 subsequent non-performance would constitute 
 fraud; while, on the other hand, if at the 
 time the promise was made no such inten- 
 tion existed there would be a false repre- 
 sentation of a material fact;" see 57 Am. L. 
 Reg. 325. 
 
 False representations concerning the fi- 
 nancial responsibility of another, made for 
 the purpose of procuring him credit, neg- 
 ligently and carelessly, without investiga- 
 tion, when investigation would disclose their 
 falsity, are held to imply a fraudulent intent 
 and are actionable; Nevada Bank of San 
 Francisco v. Bank, 59 Fed. 338; but not 
 when made by a friendly adviser acting 
 without compensation; Knight v. Rawlings, 
 205 Mo. 412, 104 S. W. 38, 13 L. R. A. (N. 
 S.) 212, 12 Ann. Cas. 325. 
 
 In an action of deceit in inducing plaintiff 
 by false representations to take an assign- 
 ment of a lease executed by one who has no 
 title to the land, no offer of "restitution need 
 he made; Cheney v. Powell, S8 Ga. 629, 15 
 S. E. 750. But one who seeks to rescind a 
 contract of sale because of fraud, but re- 
 tains the property so sold, cannot maintain 
 an action for deceit; Roome v. Jennings, 2 
 Misc. 257, 21 N. Y. Supp. 938; Shappirio v. 
 Goldberg, 192 U. S. 232, 24 Sup. Ct. 259, 48 
 L. Ed. 419; Schagun v. Mfg. Co., 162 Fed. 
 209, 89 C. C. A. 1S9; St. John v. Hendrick- 
 son, 81 Ind. 350.
 
 DECEIT 
 
 793 
 
 DECEM TALES 
 
 As to a principal's liability for an agent's 
 deceit, where there has been no authoriza- 
 tion, express or implied, there are numerous 
 conflicting decisions. In 19 Harv. L. Rev. 
 391, it is said the question commonly arises 
 in litigation for damages caused by the 
 issue of stock certificates, or by the fraudu- 
 lent issue of bills of lading. In these 
 there is no apparent authority given by the 
 principal to do the acts complained of. Yet 
 some 'vises" have allowed a recovery on the 
 ground that the agent bad apparent author- 
 ity by his own representations, bo that the 
 principal is estopped to deny absence of 
 authority. The English doctrine, followed 
 by the supreme court in the case of bills of 
 lading and approved of in the case of fraudu- 
 lent issue of stock, denies liability because 
 of the absence of any authority whatever 
 in the agent; Robertson v. Salomon, 130 U. 
 S. 415, 9 Sup. Ct. 559, 32 L. Ed. 995. As, 
 however, the act complained of is not con- 
 tractual in its nature, but tortious, the ques- 
 tion of liability should depend, not upon 
 authority conferred or apparently confer- 
 red, but solely on whether the agent is act- 
 ing in the course of his employment — the 
 ordinary rule in cases of tort. "The diffi- 
 culty, then, is to determine whether the 
 agent is in fact acting within the scope of 
 his employment. In the case of the over- 
 issue of stock, it would appear to be plainly 
 the duty of the agent to give just such in- 
 formation as that upon which the holder 
 of the spurious stock has relied, since one 
 of the chief purposes for which a corpora- 
 tion is organized is to enable the shares to 
 be transferred freely": 11) Harv. L. Rev. 391. 
 "In view of the wide-spread use of the bill 
 of lading as a symbol of property, it 
 better to regard it as analogous to a nego- 
 tiable instrument, relied upon by third par- 
 ties in much the same way as stock certif- 
 icates ;" id. 
 
 In Cornfoot v. Fowke, 6 M. & W. 358, it 
 was held that where an agent unknowingly 
 makes an untrue statement, not expressly 
 authorized by the principal, but the true 
 state of facts are, however 1 , known by the 
 principal, the principal is not liable. But 
 it is said that if this case is not overruled 
 by the remarks since made upon it in 2 Sm. 
 L. Cas. 81, 86, and by Willes, J., in (1867) 
 L. R. 2 Ex. 262, it has been cut down to a 
 decision on a point of pleading, which per- 
 haps cannot, and certainly will not. ever 
 arise; Wald's Pollock on Contracts, Willis- 
 ton's ed. 700; and in the last edition of Leake 
 on Contracts it is said in the preface that 
 "the time has now arrived when Cornfoot 
 v. Fowke may be consigned to oblivion." 
 
 See an article in 4 Mich. L. Rev. 199; Bill 
 or Lading. 
 
 DECEM TALES (Lat ten such). A writ 
 requiring the sheriff to appoint ten like men 
 (apponere decern talcs), to make up a full 
 
 jury when a sufficient number do not ap- 
 pear. See Tales de Cebcumstant] 
 
 DECEMVIRI LITIBUS JUDICANDIS. In 
 Roman Law. Ten judges (five I 
 tors and Ave knights), appol 
 
 tus to act as judges in certain c 
 vinus, Lex.: Anthon, Roiu. Ant. 
 
 DECENNARIUS (Lat). One who held 
 one-half a virgate of laud. Du Cange. One 
 of the ten freeholders in a decennat 
 < !ange ; Calvinus, Lex. 
 
 Decennier. One of the decennarii, • 
 freeholders making up a tithing. Spelman, 
 Gloss.; Du Cange, Decenna; l Bla. Com. 114. 
 See Dbcaitos. 
 
 DECENNARY (Lat. decern, ten). A dis- 
 trict originally containing ten men with their 
 families. 
 
 King Alfred, for the better preservation of the 
 ^lanil into counties, the counties 
 into hundreds, and the hundreds into tithings or de- 
 cennaries: the inhabitants whereof, living together, 
 were sureties or pledges for each other's good be- 
 havior. One of the principal men of the latter 
 number presided over the rest, and was called the 
 chief pledge, borsholder, borrow's elder, or titbing- 
 man. 
 
 DECEPTIONE. A writ that lieth proper- 
 ly against him that deceitfully doth any- 
 thing in the name of another, for one that 
 receiveth damage or hurt thereby. It is ei- 
 ther original or judicial. Fitzh. N. B. 
 
 DECIES TANTUM (Lat). An ol 
 
 writ, which formerly lay against a juror who 
 had taken money for giving his verdict 
 Called so, because it was sued out to recover 
 from him ten times as much as he took. 
 
 DECIM/E (Lat). The tenth part of the 
 annual profit of each living, payable former- 
 ly to the pope. There were several valua- 
 tions made of these livings at different 
 times. The decimce (tenths) were appropriat- 
 ed to the crown, and a new valuation i 
 lished, by 26 Hen. VIII, c. 3; 1 Bla. Com. 
 284. 
 
 DECIMATION. The punishment of every 
 tenth soldier by lot. 
 
 DECINERS. Those that had the oversight 
 and check of ten friburgs for the mainte- 
 nance of the king's peace. Cunningham. 
 
 DECISION. A judgment given by a com- 
 petent tribunal. The French lawyers 
 the opinions which they give on questions 
 propounded to them, decisions, s 
 2. 8; Dig. 1. I'. 2 ; Ilanna v. Com'rs of Put- 
 nam County, 29 Ind. 170; Estey v. Sheckler, 
 36 Wis. 434: also JUDGMENT. 
 
 This word is variously defined. It is said 
 that the decision of a court is Its Judgment ; 
 Adams v. R. Co., 77 Miss. 194, 24 South. 200, 
 317, 28 South. 956, 60 L. Ft A. 33; Its opin- 
 ion Is the reason given therefor or the views 
 of the judge In relation to a certain subject; 
 In re Estate of Wlnslow, 12 Misc. 254, 34 N. 
 Y. Supp. 637. The two words are sometimes 
 used interchangeably ; Pierce v. State, 109
 
 DECISION 
 
 794 
 
 DECISION 
 
 Ind. 535, 10 N. E. 302 ; Estey v. Sheckler, 36 
 Wis. 434; Board of Education of City of 
 Emporia v. State, 7 Kan. App. 620, 52 Pac. 
 466. The judgment is recorded upon its ren- 
 dition, and can be changed only through an 
 application to the court. The decision is the 
 property of the judges, subject to modifica- 
 tion until transcribed in the records ; Hous- 
 ton v. Williams, 13 Cal. 27, 73 Am. Dec. 565 ; 
 Coffey v. Gamble, 117 la. 545, 91 N. W. 813. 
 The term decision is held to be a popular 
 and not a technical word aud to mean little 
 more than a concluded opinion. It does not 
 by itself amount to judgment or order as 
 used in section 29 of the Local Government 
 Act of 1SS8. It is an exercise of a consulta- 
 tive jurisdiction and is not appealable; 
 [1891] 1 Q. B. 725. 
 
 The word decision includes: Dismissal of 
 an action for insufficiency of evidence; Vol- 
 mer v. Stagerman, 25 Minn. 234; dismissal 
 of appeal; Estey v. Sheckler, 36 Wis. 434; 
 the findings of the court upon which a de- 
 cree or judgment may be entered ; Matter of 
 Winslow, 12 Misc. 254, 34 N. Y. Supp. 637; 
 an order of a probate court classifying a de- 
 mand against the estate; Wolfiey v. McPher- 
 son, 61 Kan. 492, 59 Pac. 1054 ; a subsequent 
 order vacating it and relegating the demand 
 to a different class ; id. 
 
 It is, among other things, an order deter- 
 mining the judgment to be entered ; Garr, 
 Scott & Co. v. Spaulding, 2 N. D. 414, 51 N. 
 W. 867. It has a broader significance than 
 judgment; Wolfley v. McPherson, 61 Kan. 
 492, 59 Pac. 1504. A "decision upon the 
 merits" is one upon the justice of the case 
 and not upon technical grounds merely ; 
 Mulhern v. R. Co., 2 Wyo. 465. "Surely a 
 non-suit is not a decision ;" id. A ruling 
 upon the admission of evidence is not includ- 
 ed in the words "decision or intermediate 
 order" ; State v. O'Brien, 18 Mont. 1, 43 Pac. 
 1091, 44 Pac. 399; the word is sometimes 
 treated as synonymous with judgment; Es- 
 tey v. Sheckler, 36 Wis. 434 ; Board of Edu- 
 cation of City of Emporia v. State, 7 Kan. 
 App. 620, 52 Pac. 466; Pierce v. State, 109 
 Ind. 535, 10 N. E. 302 ; it has been said that 
 "in an abstract sense there is a shade of 
 difference between the import of the word 
 'decision' and the word 'judgment' " ; the 
 former "is the resolution of the principles 
 which determine the controversy ; the judg- 
 ment is the formal paper applying them to 
 the rights of the parties" ; Buckeye Pipe 
 Line Co. v. Fee, 62 Ohio St. 543, 555, 57 N. 
 E. 446, 78 Am. St. Rep. 743. As used in a 
 statute characterizing the findings of fact 
 and conclusions of law as a "written deci- 
 sion" it means something which must pre- 
 cede the judgment and upon which it is en- 
 tered as upon a verdict ; Corbett v. Job, 5 
 Nev. 201. 
 
 The decisions of courts are not the law, 
 but only evidences of the law, stronger or 
 weaker according to the number and uni- 
 
 formity of adjudications, the unanimity or 
 dissension of the judges, the solidity of the 
 reasons, and the perspicuity and precision 
 with which the reasons are expressed ; Yates 
 v. Lansing, 9 Johns. (N. Y.) 395, 6 Am. Dec. 
 290; United States Savings & Loan Co. v. 
 Harris, 113 Fed. 27 ; Swift v. Tyson, 16 Pet. 
 (U. S.) 1, 10 L. Ed. 865 ; Phipps v. Harding, 
 70 Fed. 468, 17 C. C. A. 203, 30 L. R. A. 513 ; 
 Falconer v. Simmons, 51 W. Va. 172, 41 S. 
 E. 193. 
 
 But on the other hand the term "law" is 
 said to include the decisions of the courts ; 
 Miller v. Dunn, 72 Cal. 462, 14 Pac. 27, 1 
 Am. St. Rep. 67. Possibly, if not probably, 
 the difference is one of expression rather 
 than of substance. 
 
 DECIS0RY OATH. See Oath. 
 
 DECLARANT. One who makes a declara- 
 tion. 
 
 DECLARATION. In Pleading. A specifi- 
 cation, in a methodical and logical form, of 
 the circumstances which constitute the plain- 
 tiff's cause of action. 1 Chit. PL 248; Co. 
 Litt. 17 a, 303 a ; Bacon, Abr. Pleas (B) ; 
 Comyns, Dig. Pleader, C, 7; Lawes, PL 35; 
 Steph. PL 36 ; Dixon v. Sturgeon, 6 S. & R. 
 (Pa.) 28. 
 
 In real actions, it is most properly called the 
 count; in a personal one, the declaration; Steph. 
 PI. 36 ; Doctr. Plac. 83 ; Lawes, PI. 33. See Fitzh. 
 N. B. 16 a, 60 d. The latter, however, is now the 
 general term, — being that commonly used when re- 
 ferring to real and personal actions without dis- 
 tinction ; 3 Bouvier, Inst. n. 2815. 
 
 In an action at law, the declaration answers to 
 the bill in chancery, the libel (narratio) of the 
 civilians, and the allegations of the ecclesiastical 
 courts. 
 
 It may be general or special: for example, 
 in debt on a bond, a declaration counting on 
 the penal part only is general; one which 
 sets out both the bond and the condition and 
 assigns the breach is special; Gould, PL c. 
 4, § 50. 
 
 The parts of a declaration are the title of 
 the court and term ; the venue, see Venue; 
 the commencement, which contains a state- 
 ment of the names of the parties and the 
 character in which they appear, whether iq 
 their own right, the right of another, in a 
 political capacity, etc., the mode in which 
 the defendant has been brought into court, 
 and a brief recital of the form of action to 
 be proceeded in ; 1 Saund. 318, n. 3, 111 ; 6 
 Term 130; the statement of the cause of ac- 
 tion, which varies with the facts of the case 
 and the nature of the action to be brought, 
 and which may be made by means of one 
 or of several counts; 3 Wils. 1S5; Neal v. 
 Lewis, 2 Bay (S. C.) 206, 1 Am. Dec. 640; 
 one count may incorporate, by reference, cer- 
 tain general averments which are in a pre- 
 vious count in the same pleading; Green v. 
 Clifford, 94 Cal. 49, 29 Pac. 331 ; see Count ; 
 the conclusion, which in personal and mixed 
 actions should be to the damage {ad dam- 
 num, which title see) of the plaintiff; Com-
 
 DECLARATION 
 
 795 
 
 DI.< LARATION 
 
 yns, Dig. Pleader (C, 84); 10 Co. 116 b, 117 
 a; 1 M. & s. 236; unless in scire (arias and 
 in penal actions at the suit of a common in- 
 former, but which need not repeat the ca- 
 pacity of the plaintiff; Martin v. Smith, 5 
 Binn. (Pa.) 16, 21, 6 Am. Dee 395; th 
 fert of letters testamentary in case of a suit 
 by an executor or administrator; B 
 Abr. Executor (C) ; Dougl. 5, n. ; Webb v. 
 Danforth, 1 Day (Conn.) 306; and the vb du- 
 es of prosecution., which are generally dis- 
 used, and, when found, are only the ficti- 
 tious persons, John Doe and Richard Roe. 
 
 The requisites or qualities of a declaration 
 are that it must correspond with the pro- 
 cess; and a variance in this reaped was 
 formerly the subject of a plea in abatement, 
 see Abatement; it must contain a state- 
 ment of all the facts necessary in point of 
 law to sustain the action, and no more; Co. 
 Litt. 303 a; Plowd. 84, 122; Pep. PI. s. 
 See Coffin v. Collin, 2 Mass. 363 ; Oowp. 682 j 6 
 East 122; Vincr, Abr. Declaration; Barrett 
 v. Lingle, 45 La. Ann. 935. The omission of 
 a complaint to allege a material fact is cur- 
 ed where such fact is shown by the answer. 
 
 The circumstances must be stated with 
 certainty and truth as to parties; Bentley 
 v. Smith, 3 Cai. (X. Y.) 170; 1 M. & S. 304; 
 Simonds v. Speed, 6 Rich. (S. C.) 300; Jack- 
 son v. Alexander, 8 Tex. 109; Totty's Ex'r 
 v. Donald, 4 Muuf. (Va.) 430; time of occur- 
 rence, and in personal actions it must, in 
 general, state a time when every material or 
 traversable fact happened; Atlantic Mut. 
 Fire Ins. Co. v. Sanders, 36 N. 1L 252; Gi- 
 van v. Swadley, 3 Ind. 484; Haven v. Shaw, 
 23 N. J. L. 309: Hyslop v. Jones, 3 McLean, 
 96, Fed. Cas. No. 13,953; and when a venue 
 is necessary, time must also be mentioned; 5 
 Term 020; Com. Dig. Pleader (C. 19); Barnes 
 v. Matteson, 5 Barb. fN. Y.) 375; though the 
 precise time is not material; U. S. v. Vigol, 
 2 Dall. (U. S.) 340, 1 L. Ed. 409; Che 
 v. Lewis, 3 Johns. (N. Y.) 43; Simpson v. 
 Talbot. 25 Ala. 409; unless it constitute a 
 material part of the contract declared upon, 
 or where the date, etc., of a written contract 
 is averred; 2 Campb. 307; Atlantic Mut. Fire 
 Ins. Co. v. Sanders, 36 X. II. 252; Haven v. 
 Shaw, 23 N. J. L. 309; or in ejectment, in 
 which the demise must lie stated to have 
 been made after the title of the lessor of the 
 plaintiff and his right of entry accrued; 2 
 East 257; Van Alen v. Rogers, 1 Johns. Cas, 
 (N. Y.) 2S3, 1 Am. Dec. 113; the place, sec 
 Venue.; and, generally, as to particulars of 
 the demand, sufficient to enable the defend- 
 ant to ascertain precisely the plaintiff's 
 claim; 2 P.. & P. 265; 2 Saund. 71 h : Posey 
 v. Hair, 12 Ala. 507; Van Rensselaer v. 
 Jones, 2 Barb. (N. Y.) 643; Corey v. Bath, 
 35 N. H. 530; Heirn v. McCaughan, 32 Miss. 
 17, 66 Am. Dec. 5S8; Fulwood v. Graham, 1 
 Rich (S. C.) 403. 
 
 In Evidence. A statement made by a par- 
 ty to a transaction, or by one having an in- 
 
 terest in the existence of some fact in re- 
 lation to I: 
 
 Such declarations i 
 evidence' and ad when 
 
 the fact that the declaration w:, 
 the point in question; Bartlet v. 
 
 Mass. 702 : 
 
 (X. Y.) no; Phelps v. Foot, I 
 P. & Ad. 845; :• Bingh. 359; 
 269; second, Including expressions of 
 l\" ling, where the existence or nal I 
 such feelings Is the object of Inquiry, i 
 pressions of affection in actions f'>r crim. 
 con.; 1 B. & Aid. 90; Gilchrist v. Bi 
 Wads (Pa. i 355, 34 Am. Dec. 469: 
 
 6 I'. 22; Roosa v. Loan Co., 132 Ma . 439; 
 representations by a sick person of the ma- 
 ture, symptoms, and effects of the malady 
 under which he is laboring; Bast i v ^: 
 Gilchrist v. Pale, S Watts (Pa.) 355, -H Am. 
 I» ■■•. 8 C. & P. 27.-.; Bacon v. In- 
 habitants of Charlton, 7 Gush. (Mass. 
 Wilkinson v. Moseley, 30 Ala. 502; Feagin v. 
 
 y, -') <ia. 17 ; Wadlow v. Perryman's 
 Adm'r. 27 Mo. 279; State v. David 
 Vt 377, 73 Am. Dec. 312 ; Collins v. V. 
 54 111. 4S5 ; in prosecution for rape, th< 
 larations of the woman forced; 1 
 565; _: Siark. 241; Laughlin v. State, is 
 Ohio 99, 51 Am. Dec. -144; third, in cat 
 
 ■e, including the declarations of de- 
 ! persons marly related to the parties 
 in question; 2 C. & K. 7<>1 ; 1 De G. & S. 
 40; Jewell v. Jewell, 1 How. (U. S., 231, 11 
 L. Ed. 108; Jackson v. Browner, IS Johns. 
 (X. Y.) 37; Chapman v. Chapman, 2 i 
 347, 7 Am. Dec. 277; Waldron v. Tuttle, 4 
 X. II. 371; Dupoyster v. Gagani, 84 K. 
 
 1 S. W. 052; 5 Out. 638; :;:: f. C. Q. P. 013; 
 Bisenlord v. Chun, 120 N. Y. 552, 27 N. E. 
 1021. 12 L. R. A. 836; Gehr v. Fisher, 143 
 Pa. 311, 22 Atl. S59; Harland v. Easl 
 
 107 111. 535; family records; 5 CI. .V- F. 21; 
 
 7 Scott, N. R. 141; Douglass v. Sanderson, 
 
 2 Dall. (U. S.) 110. 1 L. Ed. 312; Wa 
 Brewster, 1 Pa. 381; Jackson v. Cooley, 8 
 Johns. (X. Y.) 128; fourth, cases where the 
 declaration may be considered as a part of 
 
 tee; Tucker v. l'< . N. EL 
 
 167; Ban field v. Parker, id. ■' rge v. 
 
 Thomas, 16 Tex. 74; 67 Am. Dec. 012; liar- 
 dee v. Langford, o Fla. 13; 14 Cox, Cr. Cas. 
 341; Clayton v. Tucker, 20 Ga. 452; Deveney 
 v. Baxter, 157 Mass. 0, 31 X. B. 690; Mobile 
 & B. R. Co. v. Worthington, 95 Ala. : 
 South. 839; Pake Shore vt M. S. P. I \>. v. Iler- 
 rick.-O) Ohio St. 2. - ). 2'.) X. E. 1052; I 
 R. Co.. SO Wis. 590, 50 X. W. 584, 27 Am. St. 
 Rep. 69; Chick v. Sisson, 95 Mich. 412, 54 
 X. W. so:.; Bolmes v. Goldsmith, 117 l". s. 
 1.-0. 13 Sup. Ct 288, :;7 L. Ed. 11^ 
 Martin. 12 1 Me. 527, 28 S. W. 12 (in which 
 the cases are reviewed); including those 
 made by persons in the possession of land; 
 5 B. & Ad. 223; 16 M. & W. -197 : Inhabit- 
 ants of West Cambridge v. Inhabitants of 
 Lexington, 2 Pick. (Mass.) 530; Weidman v.
 
 DECLARATION 
 
 796 
 
 DECLARATION 
 
 Kohr, 4 S. & R. (Pa.) 174 ; Snelgrove v. Mar- 
 tin, 2 McCord (S. C.) 241; Crane v. Mar- 
 shall, 16 Me. 27. 33 Am. Dec. G31 ; Perkins 
 v. Webster, 2 N. H. 287; Doe v. Campbell, 
 23 N. C. 4S2 ; Abney v. Kingsland & Co., 10 
 Ala. 355, 44 Am. Dec. 491 ; Stark v. Boswell, 
 6 Hill (N. Y.) 405, 41 Am. Dec. 752; Hay- 
 ward Rubber Co. v. Duncklee, 30 Vt. 29; 
 Brush v. Blanchard, 19 111. 31; Sharp v. 
 Maxwell, 30 Miss. 5S9; Cunningham v. Ful- 
 ler, 35 Neb. 58, 52 N. W. 836; and entries 
 made in the ordinary course of business by 
 those wbose duty it was to make such en- 
 tries ; as field-book entries by a deceased 
 surveyor ; [1905] 2 Ch. 164 ; reversing [1904] 
 2 Ch. 525. The question on which the two 
 courts differed was whether the case was 
 within the principle of Price v. Torrington, 
 1 Salk. 285, 1 Smith, Leading Cases 139, 
 which was recognized as the leading case 
 for the admission of such entries made 
 by a deceased person. But it must be shown 
 that it was the duty of the deceased person 
 to do the particular thing and to record con- 
 temporaneously the fact of having done it; 
 [1904] 2 Ch. 534 ; 2 Ont. App. 247 ; 8 id. 564. 
 The limitation of duty thus adhered to in 
 England and Canada, though suggested in 
 earlier American cases; Nichols v. Gold- 
 smith, 7 Wend. (N. Y.) 161; "did not with 
 us survive" ; 2 Wigm. Ev. § 1524. 
 
 Such entries have been admitted in this 
 country in a great variety of cases; as a 
 private memorandum of marriages kept by 
 a clergyman and the baptismal registry of a 
 church; Blackburn v. Crawford, 3 Wall. (U. 
 S.) 175, 18 L. Ed. 1S6; American Life Ins. 
 Co. & Trust Co. v. Rosenagle, 77 Pa. 507; 
 Hunt v. Order of Chosen Friends, 64 Mich. 
 671, 31 N. W. 576,' 8 Am. St Rep. 855 ; Ken- 
 nedy v. Doyle, 10 Allen (Mass.) 161; Meconce 
 v. Mower, 37 Kan. 298, 15 Pac. 155 ; Weaver 
 v. Leiman, 52 Md. 708; the minutes of a 
 church conference ; Pettyjohn^ Ex'r v. Petty- 
 john, 1 Houst. (Del.) 332 ; Rayburn v. Elrod, 
 43 Ala. 700; Nason v. First Church, 66 Me. 
 100 ; the diary of an attorney ; Burke v. 
 Baker, 1S8 N. Y. 561, SO N. E. 1033; a log 
 book; U. S. v. Mitchell, 3 Wash. C. C. 95, 
 Fed. Cas. No. 15,792; contra, Cameron v. 
 Rich, 5 Rich. L. (S. C.) 352, 52 Am. Dec. 
 747 ; a physician's entries in the ward book 
 of an asylum ; State v. Hinkley, 9 N. J. L. 
 J. 118; a school register; Falls v. Gamble, 
 66 N. C. 455; a diploma to show that a 
 physician had his degree; Holmes v. Halde, 
 74 Me. 28, 43 Am. Rep. 567. 
 
 The following have been held inadmissible 
 as such entries: Commercial rating of a 
 commercial agency ; Richardson v. Stringfel- 
 low, 100 Ala. 416, 14 South. 283; Baker v. 
 Ashe, 80 Tex. 356, 16 S. W. 36; Henderson 
 v. Miller, 36 111. App. 232 ; the book of a car 
 inspector; Hicks v. Southern Ry., 63 S. C. 
 559, 41 S. E. 753 ; a nurse's record of what 
 transpired at the testator's sick bed ; In re 
 Flint's Estate, 100 CaL 391, 34 Pac 863; a 
 
 school catalogue; State v. Daniels, 44 N. H. 
 383; the certificate of a weigher's assistant, 
 not himself an official ; Prew v. Donahue, 
 118 Mass. 438. See 1 Greenl. Ev. § 115. 
 
 Originally such statements, to be admissi- 
 ble, must have been in writing, and the first 
 authority for the admission of oral state- 
 ments is a dictum of Lord Campbell in the 
 Sussex Peerage Case, 11 CI. & Fin. 113, for 
 which the only authority cited, 3 B. & Ad. 
 S90, was a case of written evidence, but it 
 was followed by the admission of a state- 
 ment in the nature of a report by a consta- 
 ble to his superior officer; 13 Cox C. C. 293. 
 Oral statements of deceased physicians were 
 admitted to show the disease of which the 
 insured had died in a suit on a life insur- 
 ance policy; McNair v. Ins. Co., 13 Hun 
 (N. Y.) 144; but such statements as to the 
 nature of her illness, when offered by re- 
 spondent in a petition for dissolution of 
 marriage in support of cross charges, were re- 
 jected as not made in the course of duty ; 22 
 T. L. R. 52 ; and verbal reports of a foreman 
 to a superintendent as to matters material 
 to the issue were admitted; Williams v. 
 Walton & Whann Co., 9 Houst (Del.) 322, 32 
 Atl. 726. See 19 Harv. L. Rev. 301. 
 
 Declarations by a party of his intention, 
 where that is of itself a distinct and ma- 
 terial fact in a chain of circumstances, are 
 admissible; Mutual Life Ins. Co. v. Hillmon, 
 145 U. S. 2S5, 12 Sup. Ct. 909, 36 L. Ed. 706 ; 
 such declarations being acts from which in- 
 tention may be inferred ; Com. v. Trefethen, 
 157 Mass. 1S9, 31 N. E. 961, 24 L. R. A. 235 ; 
 Buel v. State, 104 Wis. 149, 80 N. W. 78. 
 
 Declarations regarded as secondary evi- 
 dence or hearsay are yet admitted in some 
 cases : first, in matters of general and public 
 interest, common reputation being admis- 
 sible as to matters of public interest; 6 M. & 
 W. 234; Noyes v. Ward, 19 Conn. 250; but 
 reputation amongst those only connected 
 with the place or business in question, in 
 regard to matters of general interest mere- 
 ly ; 1 Cr. M. & R. 929 ; 2 B. & Ad. 245 ; El- 
 licott v. Pearl, 10 Pet. (U. S.) 412, 9 L. Ed. 
 475 ; Southwest School Dist v. Williams, 48 
 Conn. 504; McCall v. U. S., 1 Dak. 320, 46 
 N. W. 608; and the matter must be of a 
 quasi public nature; 10 B. & C. 657; Elli- 
 cott v. Pearl, 10 Pet. (U. S.) 412, 9 L. Ed. 
 475 ; Brander v. Ferriday, 16 La. 296 ; see 
 Reputation ; second, in cases of ancient pos- 
 session where ancient documents are admit- 
 ted, if found in a place in which and under 
 the care of persons with whom such papers 
 might reasonably (in the opinion of the trial 
 judge; 1 Chase Steph. Dig. Evid. 156) be ex- 
 pected to be found ; Inhabitants of Green- 
 field v. Inhabitants of Camden, 74 Me. 56; 
 Applegate v. Lexington & C. County Min. 
 Co., 117 U. S. 255, 6 Sup. Ct. 742, 29 L. Ed. 
 S92; Quinn v. Eagleston, 108 111. 248; if 
 they purport to be a part of the transaction 
 to which they relate; 1 Greenl. Ev. § 144;
 
 DECLARATION 
 
 797 
 
 DECLARATION 
 
 see Ancient Writings; third, in case of dec- 
 larations and entries made against the in- 
 terest of the party making them, whether 
 made concurrently with the act or subse- 
 quently; 3 B. & Ad. 893; Cramer v. Gregg, 
 40 111. App. 442; Irish-American Bank v. 
 Ludlum, 49 Minn. 255, 51 N. W. mil; K 
 v. Old, 8i! Tex. 22, 17 s. \V. 928; Potter v. 
 Ogden, 136 N. Y. 384, 33 N. E. 228; bul such 
 declarations and entries, to be so admitted, 
 must appear or he shown to be against tin 1 
 pecuniary Interest of the party making them; 
 11 CI. & F. 85; 2 Jac. & W. 789; 3 Bingh 
 N. C. .".OS; Drawdy v. Hesters, 130 Ga. 161, 
 60 s. !■:. 451, L5 L. R, A. (N. S.) 190: and 
 if so they may be admitted, whether or not 
 made in the ordinary course of business, as 
 where a solicitor charges himself with re- 
 ceipts on his client's behalf; 53 W. R. 169; 
 but letters written and signed by one de- 
 ceased, or a memorandum made by him, are 
 not admissible by a party claiming under 
 him if not shown to have been communicat- 
 ed to the party claiming adversely; Elsberg 
 v. Si wards. 66 Bun 28, 21 N. Y. Supp. 10; 
 it was established by the Sussex Peerage 
 Case, 1 CI. & Fin. 85, that the interest must 
 be either pecuniary or proprietary; this ex- 
 cluded the admission by a clergyman that he 
 had unlawfully solemnized a marriage, 
 which was so far against his interest that 
 it would have subjected him to punishment; 
 this ruling has been generally accepted, but 
 that it is so has been said to be "highly un- 
 fortunate" ; 1 Gr. on Ev. (16th Ed by Wig- 
 more) § 152 d; fourth, dying declarations. 
 
 Dying declarations, made in cases of homi- 
 cide where the death of the deceased is the 
 subject of the charge and the circumstances 
 of the death are the subject of the dying 
 declarations, are admissible; 2 B. & C. 605; 
 2 Mood. & R. 53; Jackson v. Kniffen, 2 
 Johns. (N. Y.) 81, 3 Am. Dec. 390; Wilson v. 
 Boerene, 15 Johns. (N. Y.) 286; Anthony v. 
 State. Meigs (Tenn.) 265, 33 Am. Dec L43; 
 if made under a sense of impending death; 
 
 2 Leach 563; Montgomery v. State, n Ohio 
 424; Dunn v. State. 2 Ark. 229, 35 Am. Dec. 
 54; Com. v. McPike, 3 Cush. (Mass.) 181, 50 
 Am. Dec. 727; Smith v. State, 9 Humphr. 
 (Tenn.) 9; Logan v. State, id. 2-1; state v. 
 Umble. 115 Mo. 452, 22 S. W. 378; state v. 
 Aldrich, 50 Kan. 606. 32 Pac. 408; Wallace 
 v. State, 90 Ga. 117. 15 S. K. 700; State v. 
 Cronin, 64 Conn. 29:;, 29 Atl. 536. And see 
 
 3 C. & P. 269; 6 id. 386; Vass v. Com., 3 
 Leigh (Va.) 786, 24 Am. Dec. 695; State v. 
 Poll, 8 N. C. 442, 9 Am. Dec. 655; State v. 
 Whitson, 111 N. C. 695, 16 S. K. 332; King 
 v. State, 91 Tenn. 617, 20 S. W. 169; Mattox 
 T. U. S., 146 U. S. 140, 13 Sup. Ct. 50. 36 
 L. Ed. 917. Ordinarily they are admissible 
 only in trials for homicide of the declarant, 
 but they have been admitted on trial for 
 attempted abortion on the woman who made 
 them; State v. Meyer. 65 N. J. L. 237, -17 
 atl. 486, 86 Am. St. Rep. 634; Montgomery 
 
 v. State, 80 Ind. 338, 41 Am. Rep. 815, 
 where the question is discussed at large 
 and the conclusion that be 
 
 death resulted and that fad I into 
 
 the statutory crime, t 
 hie. It was he-Id i 
 
 Davis, 56 N. Y. 95, and in State v. Harper, 
 35 Obic St. 7S. 35 Am. ! 
 larations were excluded 
 the woman died, her death v. . 
 ject of the charge. The declarations must 
 have been made by the per 
 have been murdered; State v. Rohan, 15 
 Kan. 418; Brown v. Com., 73 Pa. 321, 13 
 Am. Rep. 7lo, where husband and wife w.r.- 
 killed and it was held error to admit 
 larations of the latter on trial for murder 
 of the former; but it has also tx . 
 that, where two or more were ki 
 same time, declarations of one Wi 
 sible at the trial for the murder ol 
 er; State v. Terrell, 12 Rich (S. C.) 31 
 Moo. & Rob. 53. In the Pennsylvania case 
 the court distinguished it from th 
 •'supposing them to be good law." The 
 larations must he connected with the death 
 which is the subject of the trial: i 
 v. Wong Chuey, 117 CaL 624, 49 Pa» 
 and must concern the res gestCB, not previous 
 relations; People v. Smith. 172 X. V. 242, 
 01 X. E. SI 1. They must be made and 
 actual apprehension of impending death; 
 People v. Evans, 40 Hun (N. Y.) 192; P 
 v. Brecht, 120 App. Div. 769, 105 X. V. 
 Supp. 4::o (in both of which statements were 
 e declarants had not wholly 
 abandoned hope); state v. B 29 Xev. 
 
 320, 90 Pac. 221, 13 Ann. Cas. 1122 (where 
 they were admitted); after hope of recovery 
 is gone; Small v. Com., 91 Pa. even 
 
 a faint hope excludes them; Com. v. Roberts. 
 108 Mass. 296; People v. Gray, 61 Cal. 164, 
 44 Am. Rep. ">19; but subsequent lingering, 
 with some expression of hope, does not, if 
 at the time they were made there Wl 
 hope; Swisher v. Com.. 26 Gratt (Va.) 
 21 Am. Dec. 330. A statement made in writ- 
 ing before hope was abandoned and confirm- 
 ed afterwards was admissible; Wilson v. 
 Com., 60 s. W. 400, 22 Ky. L. Rep. 1251; 
 State v. McEvoy, 9 S. C. 208. The fear of 
 death need not be expressed to the j 
 who receives the declaration, if ir- 
 is otherwise established; Worthington v. 
 state. 92 Mil. 222, 48 Atl. 355, 56 L. R. A. 
 M Am. St. Rep. 500. A statement re- 
 duced to writing may he supplement 
 others made orally at the same time; Herd 
 v. State, 43 Tex. Cr. R. 575, 67 S. V 
 (criticised, 11 Y. L. 3. 430); contra; 1 Str. 
 499; Whart. Horn. § 700: Gr. Ev. [ 
 
 Although the time elapsing between the 
 declarations and death is proper to be con- 
 sidered, they will not be made inadmissible 
 by a few subsequent hours of life: People v. 
 Weaver. 108 Mich. 649, 66 X. W. 567; State 
 v. Reed, 53 Kan. 767, 37 Pac 174. 42 Am.
 
 DECLARATION 
 
 798 
 
 DECLARATION 
 
 St. Rep. 322; or even some days; 6 C. & P. 
 386 ; Com. v. Haney, 127 Mass. 455 ; Jones 
 v. State, 71 Ind. 66; State v. Jones, 38 La. 
 Ann. 792; Baxter v. State, 15 Lea (Tenn.) 
 657 ; State v. Yee Wee, 7 Idaho, 188, 61 Pac. 
 588. 
 
 It is not necessary that the declarant state 
 that he is expecting immediate death; it is 
 enough if, from all the circumstances, it sat- 
 isfactorily appears that such was the condi- 
 tion of his mind at the time of the declara- 
 tions; State v. Wilson, 24 Kan. 189, 36 Am. 
 Rep. 257; but there must be a belief that 
 tbere is no hope of recovery; Com. v. 
 Roberts, 10S Mass. 296; People v. Brecht, 
 120 App. Div. 769, 105 N. Y. Supp. 436; 
 State v. Welsor, 117 Mo. 570, 21 S. W. 443; 
 65 J. P. 426; 67 id. 151, where the expres- 
 sion "I'm dying" was used and the declara- 
 tions were excluded, while in 71 id. 152, the 
 same expression was used and they were ad- 
 mitted; as they were also when declarant 
 said he did not know what expectation of 
 recovery he had; State v. Thompson, 49 Or. 
 46, 88 Pac. 583, 124 Am. St. Rep. 1015. The 
 belief that death is inevitable supplies the 
 place of an oath; Tracy v. People, 97 111. 
 106; People v. Sanford, 43 Cal. 29; Dixon 
 v. State, 13 Fla. 636. Accordingly, although 
 the common law rule was said to require 
 that declarant should have a belief in God 
 and a future state; 1 Str. 499; 17 Y. L. J. 
 403; tbat rule was considered abrogated in 
 the cases just cited and the want of such 
 belief has been held to be no ground for ex- 
 cluding declarations; State v. Hood, 63 W. 
 Va. 182, 59 S. E. 971, 15 L. R. A. (N. S.) 
 448, 129 Am. St. Rep. 964 ; while other cases 
 hold otherwise, tbough belief is presumed 
 until the contrary is proved; Donnelly v. 
 State, 26 N. J. L. 463; but if admitted in 
 such case, they should not be relied on ; 
 State v. Elliott, 45 la. 4S6. Reckless and 
 profane language will not render declara- 
 tions inadmissible; Kirby v. State, 151 Ala. 
 66, 44 South. 38 ; but will affect their credi- 
 bility ; Nesbit v. State, 43 Ga. 238 ; and cross- 
 examination will be allowed as to that, as 
 being material in showing both a reckless 
 and irreverent state of mind and hostility 
 towards the accused ; Tracy v. People, 97 
 111. 105. 
 
 The declaration may have been made by 
 signs ; 1 Greenl. Ev. § 161 & ; and in answer 
 to questions; 7 C. & P. 238; 2 Leach 563; 
 Vass v. Com., 3 Leigh (Va.) 7S6, 24 Am. Dec. 
 695. They may be in writing ; State v. Kin- 
 dle, 47 Ohio St. 358, 24 N. E. 485; King v. 
 State, 91 Tenn. 617, 20 S. W. 169. The sub- 
 stance only need be given by the witness ; 
 Montgomery v. State, 11 Ohio, 424; Ward v. 
 State, 8 Blackf. (Ind.) 101; but the declara- 
 tion must have been complete; Vass v. Com., 
 3 Leigh (Va.) 786, 24 Am. Dec. 695; Mattox 
 v. U. S., 146 U. S. 140, 13 Sup. Ct 50, 36 
 L. Ed. 917; and the circumstances under 
 which it was made must be shown to the 
 
 court; 3 C. & P. 629; 7 id. 187; State v. 
 Poll, 8 N. C. 444, 9 Am. Dec. 655; Hill v. 
 Com., 2 Gratt. (Va.) 594; McDaniel v. State, 
 8 Smedes & M. (Miss.) 401, 47 Am. Dec. 93. 
 
 It is for the court to determine whether 
 the preliminary conditions make the evi- 
 dence admissible ; State v. Cronin, 64 Conn. 
 293, 29 Atl. 536; State v. Doris, 51 Or. 136, 
 94 Pac. 44, 16 L. R. A. (N. S.) 660 ; and this 
 includes the question of impending death; 
 Roten v. State, 31 Fla. 514, 12 South. 910; 
 1 Stark. 521, and note (where the case of 
 Rex v. Woodcock, Leach 593, contra, is dis- 
 credited) ; People v. Smitb, 104 N. Y. 491, 
 504, 10 N. E. 873, 58 Am. Rep. 537 ; and this 
 decision of the court comprises both fact 
 and law, as to the first of which it is final 
 and as to the second subject to review; 
 State v. Williams, 67 N. C. 12; Com. v. 
 Bishop, 165 Mass. 148, 42 N. E. 560 (Holmes, 
 C. J.) ; but having been admitted, the weigbt 
 of the evidence is for the jury ; State v. 
 Sexton, 147 Mo. 89, 48 S. W. 452; and this 
 includes consideration of the circumstances 
 under which they were made ; Bush v. State, 
 109 Ga. 120, 34 S. E. 298; State v. Phillips, 
 118 la. 660, 92 N. W. 876; and it is error 
 to charge that they should be treated as of 
 the same weight and value as evidence pro- 
 duced under the usual tests and safeguards; 
 People v. Kraft, 148 N. Y. 631, 43 N. E. SO. 
 The conclusions of the trial court, as to the 
 admissibility of the declarations, should not 
 be disturbed unless it is manifest that the 
 facts did not warrant them; Gipe v. State, 
 165 Ind. 433, 75 N. E. 881, 1 L. R. A. (N. S.) 
 419, 112 Am. St. Rep. 238; Swisher v. Com., 
 26 Gratt. (Va.) 963, 21 Am. Rep. 330. 
 
 Such declarations are inadmissible 'when 
 the witness does not pretend to give either 
 the words or substance of what the deceased 
 said, or all that he said; State v. Johnson, 
 US Mo. 491, 24 S. W. 229, 40 Am. St Rep. 
 405. The admissibility of the declaration is 
 not affected by the fact that subsequently to 
 their being made and before death the de- 
 clarant entertained a belief in recovery; 14 
 Cox, Cr. Cas. 565, 28 Engl. Rep. 587, and 
 note; State v. Shaffer, 23 Or. 555, 32 Pac. 
 545. 
 
 Dying declarations must be confined to 
 the statement of facts, not conclusions; 
 State v. Horn, 204 Mo. 528, 103 S. W. 69; 
 or opinions; State v. Horn, 204 Mo. 528, 103 
 S. W. 69 (where a statement that declarant 
 shot the accused in self-defense was ex- 
 cluded as a mere conclusion) ; although it 
 is to be noted that the application of the 
 "opinion rule" to such declarations has been 
 vigorously disputed; 2 Wigm. Ev. § 1447. 
 It is also to be noted that the controversy 
 usually turns on whether the expression 
 used is fact or opinion. 
 
 The admission of dying declarations has 
 been uniformly held not to contravene the 
 constitutional right of the accused to be 
 confronted with the witnesses against him;
 
 DECLARATION 
 
 799 
 
 DECLARATION 
 
 Mattox v. U. S., 156 U. S. 237, 243, 15 Sup. 
 Ct. 337, 39 L. Ed. 409; Brown v. Com., 73 
 Pa. 321, 13 Am. Rep. 740; State v. Dickin- 
 son, 41 Wis. 299; Robbins v. State, 8 Ohio 
 St. 131 ; Com. v. Carey, 12 Cusb. (Mass.) 24G ; 
 2 Wigm. Ev. § 1398, and note, citing tbe 
 cases. 
 
 Tbey are admitted either for or against 
 the accused ; Mattox v. U. S., 146 U. S. 140, 
 13 Sup. Ct 50, 36 L. Ed. 917 ; State v. Saun- 
 ders, 14 Or. 300, 12 l'ac. 441. 
 
 It has been held that tbey may be dis- 
 credited by evidence of previous contradic- 
 tory statements; State v. Lodge, 9 Houst 
 (Del.) 542, 33 Atl. 312; but with expref 
 of doubt and one judge dissenting, and the 
 case has been criticised; 9 llarv. L. Rev. 
 432. 
 
 For full discussion of dying declarations 
 and collections of cases, see 2 Wigm. Ev. g§ 
 1430-1451; 56 L. R. A. 353, note; also an 
 article by Wilbur Larremore urging that 
 their admission should be abolished by stat- 
 ute; 41 Am. L. Rev. 660. 
 
 Other Declarations. Declarations as to 
 the physical or mental condition of the 
 declarant are sometimes admitted as an ex- 
 ception to the rule against hearsay, as tbe 
 natural and necessary evidence of bodily or 
 mental feelings, where those are material 
 as facts to be proved. The underlying prin- 
 ciple is thus expressed by Mellish, L. J., in 
 the St. Leonard's Will case: "Whenever it 
 is material to prove the state of a person's 
 mind, or what was passing in it, and what 
 were his intentions, then you may prove 
 what be said, because that is the only means 
 by which you can find out what his inten- 
 tions were." L. R. 1 P. Div. 154, 251. Thus 
 such declarations as to one's own physical 
 condition, as of the existence of pain, have 
 been admitted in a suit by declarant be- 
 cause, as it was said, they "in their very 
 nature must be evidence, though emanating 
 from the party himself who seeks to prove 
 them in his own favor" ; Phillips v. Kelly, 
 29 Ala. 628. Exclamations of pain and suf- 
 fering were held properly admitted because 
 "this is the natural and ordinary mode in 
 which physical pain and suffering are made 
 known to others, and the only mode by 
 which their nature and extent can be as- 
 certained" ; Hyatt v. Adams, 16 Mich. 180. 
 which was an action against a surgeon for 
 malpractice causing death. Such declara- 
 tions or exclamations are admitted when 
 made to a physician in tbe course of treat- 
 ment; State v. Gedicke, 43 N. J. L. sY;; 
 but not when he was "called In, not to give 
 medical aid, but to make up medical testi- 
 mony." and tbe time was post litem motam; 
 Grand Rapids & I. R. Co. v. Huntley, 38 
 Mich. 537, 31 Am. Rep. 321; Consolidated 
 Traction Co. v. Lambertson, 60 N. J. L. 452, 
 38 Atl. 6S3, where declarations were held 
 clearly incompetent, though even under such 
 
 circumstances natural expressions of pres- 
 ent pain might not be. 
 
 It is suggested in a note on the la^' 
 cases that such testimony is admi 
 without the qualifications of I de to 
 
 a physician and before the control 
 arose; 11 llarv. L. Rev. 467. As to the 
 former point the Alabama case sustains the 
 contention, but the tendency is to extend 
 the eases to which the post litem r 
 rule is to be applied and infra, 
 
 its (imitations are too narrowly stated in 
 the note cited. In the Michigan ci 
 Christlancy leaves the question open wheth- 
 er it applies to this cla e& 
 
 Declarations, to be admissible as original 
 evidence, must have been made at the time 
 of doing the act to which they relate; Enos 
 v. Tuttle, 3 Conn, l v. State, 8 
 
 Smedes & M. (1 J; In re Taylor, 9 
 
 Paige Ch. (N. Y.) 611; Cherry v. McCall, 23 
 Ga. L93; O'Kelly v. O'Kelly, 8 Mete, (W 
 436; Banfleld v. Parker, 36 N. II. 353; Tump- 
 kins v. Saltmarch, 14 S. & R. (Pa.) 275; 1 
 C. & Ad. 135. For cases of entries in books, 
 see Sterrett v. Bull, 1 Binn. (Pa.) 234; In- 
 graham v. Bockius, 9 S. & R. (Pa.) 285, n 
 Am. Dec. 730; Faxon v. Hollis, 13 Mass. 
 127; Hamilton v. State, 36 End. 280, 10 Am. 
 Rep. 22. 
 
 To authorize their admission as secon- 
 dary evidence, the declarant must be dead : 
 
 11 Price 162; 1 O. & K. 58; Davis v. Fuller. 
 
 12 Vt. ITS. 36 Am. Dec. :;34 : and the dec- 
 laration must have been made before any 
 controversy arose ; 3 Campb. 444 ; 10 B. & 
 C. 657; 4 M. & S. 4S6; Hamilton v. Smith. 
 74 Conn. 374, 50 Atl. 884; Elliott v. Pi 
 
 1 Pet. (F. S.) 328, 7 L. Ed. 164. The rule 
 that such declarations must have been made 
 ante litem motam was applied to cases of 
 pedigree in the Berkeley Pi sse, 4 
 
 Camp. 401; and to matters of public inter- 
 est in 3 id. 444; and, pari ratione, the Con- 
 necticut cases above cited apply the same 
 principle to boundary cases, the latest one 
 in date excluding declarations made after 
 the controversy arose which would have 
 contradicted those of the same person made 
 before it. which were admitted. In the opin- 
 ion of tbe supreme court approving this 
 ruling, Judge Baldwin said that, while it 
 may seem hard that the earlier declarations 
 could not be met by proof of the later in- 
 consistent ones, "the latter, having been ut- 
 tered after the dispute which resulted In 
 this suit had arisen, do not carry that ab- 
 solute assurance of sincerity and impartial- 
 ity on which is re ted this exception I 
 rule excluding hearsay evidence." And yet 
 the opinion had stated that at tbe time of 
 the later declarations, winch were thus ex- 
 cluded, suit had not been brought, and there 
 was no claim that declarant knew of any dis- 
 pute. 
 It must also appear that the declarant
 
 DECLARATION 
 
 800 
 
 DECLARATION 
 
 was in a condition or situation to know the 
 facts, or that it was his duty to know them: 
 9 B. & C. 935 ; 2 Sm. Lead. Cas. 193, note. 
 The test to be applied to dying declarations 
 to determine their admissibility is whether 
 a living witness would have been permitted 
 to testify to the matters contained in the 
 declaration; State v. Foot You, 24 Or. 61, 
 32 Pac. 1031, 33 Pac. 537. 
 
 The declarations of an agent respecting a 
 subject-matter, with regard to which he rep- 
 resents the principal, bind the principal; 
 Story, Ag. §§ 134-137; 2 Q. B. 212;" Batch- 
 elder v. Emery, 20 N. H. 165; Winter v. 
 Burt, 31 Ala. 33; Wellington v. R. R., 158 
 Mass. 1S5, 33 N. E. 393 ; if made in the line 
 of his duty and within the scope of his au- 
 thority; Weeks v. Inhabitants of Needham, 
 156 Mass. 2S9, 31 N. E. 8; Pittsburgh & 
 L. S. Iron Co. v. Kirkpatrick, 92 Mich. 252, 
 52 N. W. 628; Van Doren v. Bailey, 48 
 Minn. 305, 51 N. W. 375; if made during 
 the continuance of the agency with regard 
 to a transaction then pending; 8 Bingh. 451; 
 Mechanics' Bank v. Bank of Columbia, 5 
 Wheat (U. S.) 336, 5 L. Ed. 100 ; Hannay v. 
 Stewart, 6 Watts (Pa.) 487 ; Woods v. Banks, 
 14 N. H. 101; Hayward Rubber Co. v. 
 Duncklee, 30 Vt. 29; Raiford v. French, 11 
 Rich. (S. C.) 367; Winter v. Burt, 31 Ala. 
 33; Burgess v. Inhabitants of Wareham, 7 
 Gray (Mass.) 345; Vail v. Judson, 4 E. D. 
 Smith (N. Y.) 165; Idaho Forwarding Co. v. 
 Forwarding Ins. Co., 8 Utah, 41, 29 Pac. 
 826, 17 L. R. A. 586; and similar rules ex- 
 tend to partners' declarations; 1 Greenl. 
 Ev. § 112; Fail v. McArthur, 31 Ala. 26; 
 Tucker v. Peaslee, 36 N. H. 167; Slipp v. 
 Hartley, 50 Minn. 118, 52 N. W. 386, 30 
 Am. St. Rep. 629. See Partner. 
 
 Where several defendants are interested 
 in the relief prayed against them, admis- 
 sions of one of them, made against his own 
 interest, are admissible in evidence to af- 
 fect him, although they would not be evi- 
 dence to affect his co-defendants. See Grace 
 v. Nesbitt, 109 Mo. 9, 18 S. W. 1118; Red- 
 ding v. Wright, 49 Minn. 322, 51 N. W. 1056; 
 Roberts v. Kendall, 3 Ind. App. 339, 29 N. 
 E. 487. 
 
 As to declarations made over a telephone, 
 see Telephone. 
 
 When more than one person is concerned 
 in the commission of a crime, as in cases of 
 riots, conspiracies, and the like, the declara- 
 tions of either of the parties, made while 
 acting in the common design, are evidence 
 against the whole; 3 B. & Aid. 566; Com. 
 v. Crowninshield, 10 Pick. (Mass.) 497 ; State 
 v. Thibeau, 30 Vt. 100; Mack v. State, 32 
 Miss. 405; Poole v. Gerrard, 9 Cal. 593; 
 McKenzie v. State, 32 Tex. Cr. R. 568, 25 
 S. W. 426, 40 Am. St. Rep. 795; People v. 
 Collins, 64 Cal. 293, 30 Pac. 847; but the 
 declarations of one of the rioters or conspir- 
 ators made after the accomplishment of 
 
 their object and when they no longer acted 
 together, are evidence only against the par- 
 ty making them; 2 Russ. Cr. 572; 1 Mood. 
 & M. 501 ; Brown v. U. S., 150 U. S. 93, 14 
 Sup. Ct. 37, 37 L. Ed. 1010 ; Sparf v. U. S., 
 156 U. S. 58, 15 Sup. Ct. 273, 39 L. Ed. 343. 
 And see 2 C. & P. 232; Chelmsford Co. v. 
 Demarest, 7 Gray (Mass.) 1; Com. v. Ingra- 
 ham, id. 46. If one of two persons accused 
 of having together committed a crime of 
 murder makes a voluntary confession in 
 the presence of the other, under such cir- 
 cumstances that he would naturally have 
 contradicted it if he did not assent, the con- 
 fession is admissible in evidence against 
 both ; Sparf v. U. S., 156 U. S. 51, 15 Sup. 
 Ct. 273, 39 L. Ed. 343. 
 
 See Hearsay Evidence; Boundary; Mar- 
 riage; Domicil; Reputation; Pedigree; 
 Confession. And for an extensive collection 
 of cases on the points herein stated see 
 Chamb. Best. Ev. §§ 496-505 and the Amer- 
 ican notes thereto. 
 
 In Scotch Law. The prisoner's statement 
 before a magistrate. 
 
 When used on trial, it must be proved 
 that the prisoner was in his senses at the 
 time of making it, and made it of his own 
 free will; 2 Hume 32S; Alison, Pr. 557. It 
 must be signed by the witnesses present 
 when it was made; Alison, Pr. 557, and by 
 the prisoner himself; Arid. Just. 70. See 
 Paterson, Comp. §§ 952, 970. 
 
 DECLARATION OF INDEPENDENCE. 
 
 A public act by which, through the Conti- 
 nental Congress, the thirteen British col- 
 onies in America declared their independ- 
 ence, in the name and by the authority of 
 the people, on the fourth day of July, 1776, 
 wherein are set forth: — 
 
 Certain natural and inalienable rights of 
 man ; the uses and purposes of governments ; 
 the right of the people to institute or to 
 abolish them; the sufferings of the colonies, 
 and their right to withdraw from the tyr- 
 anny of the king of Great Britain ; 
 
 The various acts of tyranny of the British 
 king; 
 
 The petitions for redress of those injuries, 
 and the refusal to redress them ; the recital 
 of an appeal to the people of Great Britain, 
 and of their being deaf to the voice of jus- 
 tice and consanguinity; 
 
 An appeal to the Supreme Judge of the 
 world for the rectitude of the intentions of 
 the representatives; 
 
 A declaration that the United Colonies 
 are, and of right ought to be, free and inde- 
 pendent states ; that they are absolved from 
 all allegiance to the British crown, and that 
 all political connection between them and 
 the state of Great Britain is and ought to 
 be dissolved; 
 
 A pledge by the representatives to each 
 other of their lives, their fortunes, and their 
 sacred honor.
 
 DECLARATION OF INDEPENDENCE 801 DECLARATION OF ST. PETERSBURG 
 
 The effect of this declaration was the es- 
 tablishment of the government of the Unit- 
 ed States as free and independent. 
 
 DECLARATION OF INTENTION. The 
 
 act of an alien who goes before a court of 
 record and in a formal manner declares 
 that it is bona fide his intent ion to become 
 a citizen of the United States, and to re- 
 nounce forever all allegiance and fidelity 
 to any foreign prince, potentate, state, or 
 sovereignty whereof at the time he may be 
 a citizen or subject. See Act of June 29, 
 1906; It. S. § 2174. 
 
 This declaration must, in ordinary cases, 
 be made at least two years before his admis- 
 sion. Id. But there are exceptions to this 
 rule. See Naturalization. 
 
 DECLARATION OF LONDON. A declara- 
 tion concerning the laws of naval war. 
 agreed upon February 26, 1000. by the pow- 
 ers assembled at the London Naval Confer- 
 ence. The preamble states that the Dec- 
 laration was made in view of the desirabil- 
 ity of an agreement upon the rules to be 
 applied by the International Prize Court es- 
 tablished by the Second Hague Conference. 
 A preliminary provision states that it is 
 agreed that the rules adopted "correspond 
 in substance with the generally recognized 
 principles of international law." The sub- 
 jects dealt with by the Declaration include 
 Blockade, Contraband, Un-neutral Service, 
 Destruction of Neutral Prizes, Transfer to 
 Neutral Flag, Enemy Character, Convoy, 
 Search, and Compensation. The Declara- 
 tion was signed by all the powers represent- 
 ed at the Conference, but ratifications have 
 not yet been exchanged. Higgins, 538-613. 
 
 DECLARATION OF PARIS. A declara- 
 tion respecting international maritime law 
 set forth by the leading powers of Europe 
 at the Congress of Paris April 16, 1S56. 
 The several articles are: 
 
 1. Privateering is and remains abolished. 
 
 2. The neutral flag covers enemy's goods, 
 except contraband of war. 
 
 3. Neutral goods, except contraband of 
 war. are not liable to confiscation under a 
 hostile flag. 
 
 4. Blockades, to be binding, must be effec- 
 tive. 
 
 The states not represented at the Con- 
 gress were invited to adhere to the Declara- 
 tion, and the majority did so. The United 
 States refused to accept the Declaration. 
 owing to the rejection by the Congress of 
 the "Marcy Amendment" exempting private 
 property from capture at sea. But the Unit- 
 ed States adhered to the rules of the Dec- 
 laration during the war with Spain in 18Q8. 
 The Convention Relative to the Conversion 
 of Merchant-Ships into War-Ships, adopted 
 at The Hague in 1907, was directed against 
 a threatened evasion of the Declaration of 
 Paris in the form of Volunteer Navies. Hig- 
 gins, 1-4. 
 
 Bouv.— 51 
 
 DECLARATION OF ST. PETERSBURG. 
 A declaration made at St. Petersburg in 
 1868 on behalf of certain of the powers In 
 relation to the prohibition of the use of 
 explosive bullets in time of war. 
 
 DECLARATION OF TRUST. The act by 
 which an individual acknowledges that a 
 
 property, the title of which he holds, does 
 in fact belong to another, for whose use he 
 holds the same. 
 
 The instrument in which such an acta 
 edgment is made. 
 
 Such a declaration is not always in writ 
 ing; though it is highly proper it should be 
 so; Hill, Trust 49, note y; Sugden, Pow. 
 200; 1 Washb. R. P. See Tiedm. Eq. Jur. 
 296; Frauds, Statute of; T . 
 
 It differs from a declaration of a use. (1) 
 The word "use" is restricted and refers only 
 to real estate. (2) Use was of common oc- 
 currence in times when there existed no 
 method by which the moral rights and 
 claims of the cestui <mc use could be en- 
 forced, whereas trust, when employed in 
 pari materia with use, has always contain- 
 ed within it a necessary implication that 
 the rights and claims of the cestui <iur trust 
 would be enforced in equity, and. since the 
 coming into operation of the Judicature 
 Act of 1873, in England, in courts of law 
 also; Stroud Jud. Diet See Uses. 
 
 DECLARATION OF WAR. The public 
 proclamation of the government of a state, 
 by which it declares itself to be al war with 
 the foreign power mentioned, and which for- 
 bids all and every one to aid or assist the 
 common enemy. 
 
 The power of declaring war Is vested in 
 congress by the constitution, art. 1, s. 8. | L2 
 There is no form or ceremony necessary ex- 
 cept the passage of the act. A manifesto 
 stating the causes of the war is usually pub- 
 lished ; but war exists as soon as the act 
 takes effect. 
 
 The necessity of a declaration of war has 
 long been a subject of controversy between 
 publicists. In ancient times it was customary 
 to precede hostilities by a public declaration 
 communicated to the enemy, and to s- 
 herald to demand satisfaction. II I'billipson 
 197. In modern times wars have more often 
 begun wit limit any declaration, but several 
 instances of declarations during the 19th 
 century show a return to the former prac- 
 tice. At the Hague Conference of 1907 a 
 convention was adopted providing that the 
 contracting powers should not commence 
 hostilities "without a previous and unequiv- 
 ocal warning, which shall take the form ei- 
 ther of a declaration of war, giving reasons, 
 or of an ultimatum with conditional declara- 
 tion of war." Higgins, 19S-205. 
 
 DECLARATORY. Something which ex- 
 plains or ascertains what before was uncer- 
 tain or doubtful: as, a declaratory stat- 
 ute, which simply declares or explains the
 
 DECLARATORY 
 
 802 
 
 DECOY LETTER 
 
 law or the right, as it stood previous to the 
 statute; Sedgw. Stat. & Const. L. 28; they 
 are usually passed to put an end to a doubt 
 as to what the law is, and declare what it 
 is and what it has been. 1 Bla. Com. SO. 
 Very many of the state statutes in this coun- 
 try are declaratory of the common law, and 
 were not passed to quiet a doubt but to in- 
 corporate into the law of the state well- 
 settled common-law principles. As to declar- 
 atory statutes, see Statutes. 
 
 DECLARE. Often used of making a posi- 
 tive statement, as "declare and affirm." 
 Bassett v. Demi, 17 N. J. L. 432. To assert ; 
 to publish; to utter; to announce clearly 
 some opinion or resolution. Knecht v. Ins. 
 Co., 90 Pa. 121, 35 Am. Rep. 041. For its 
 use in pleading, see Declaration. 
 
 DECLINATORY PLEA. A plea of sanctu- 
 ary or of benefit of clergy. 4 Bla. Com. 333. 
 Abolished, & 7 Geo. IV. c. 28, s. 0; Mozl. & 
 W. Diet. See Benefit of Clergy. 
 
 DECOCTION. The operation of boiling 
 certain ingredients in a fluid for the pur- 
 pose of extracting the parts soluble at that 
 temperature; the product of this operation. 
 
 In a case in which the indictment charged the 
 prisoner with having administered to a woman a 
 decoction of a certain shrub called savin, it appear- 
 ed that the prisoner had administered an infusion, 
 and not a decoction. The prisoner's counsel insisted 
 that he was entitled to an acquittal on the ground 
 that the medicine was misdescribed ; but it was 
 held that infusion and decoction are ejusdem gen- 
 eris, and that the variance was immaterial. 3 
 Camp. 74, 75. 
 
 DEC0CT0R. In Roman Law. A bank- 
 rupt; a person who squandered the money 
 of the state. Calvinus, Lex. 
 
 DEC0LLATI0. Decollation; beheading. 
 
 d£C0NFES. In French Law. A name 
 formerly given to those persons who died 
 without confession, whether they refused 
 to confess or whether they were criminals to 
 whom the sacrament was refused. Droit de 
 Canon, par M. l'Abbg Andre ; Dupin, Gloss, to 
 Loisel's Institutes. 
 
 DECOY. A pond used for the breeding 
 and maintenance of water-fowl. 11 Mod. 
 74, 130; 3 Salk. 9; Holt 14; 11 East 571. 
 
 DECOY LETTER. A letter prepared and 
 mailed on purpose to detect offenders against 
 the postal and revenue laws. U. S. v. Whit- 
 tier, 5 Dill. 39, Fed. Cas. No. 10,688. 
 
 The use of decoy letters by inspectors of 
 mails for the purpose of ascertaining the 
 depredations upon the mails is proper and 
 justifiable as a means to that end; U. S. v. 
 Dorsey, 40 Fed. 752. 
 
 A postal employe who takes from the 
 mail under his charge a package containing 
 things of value, though placed in the mail 
 as a decoy and addressed to a person having 
 no existence, is punishable, under R. S. sees. 
 3891, 5467, for taking a . letter or package 
 entrusted to him; U. S. v. Wight, 38 Fed. 
 
 100; U. S. v. Dorsey, 40 Fed. 752; contra, U. 
 S. v. Denicke, 35 Fed. 407; U. S. v. Matthews, 
 35 Fed. S90, 1 L. R. A. 104. The fact that 
 they were decoy letters is immaterial on a 
 prosecution for embezzlement; Walster v. 
 U. S., 42 Fed. 891. 
 
 The offence of sending letters by mail giv- 
 ing information where obscene pictures can 
 be obtained does not lose its criminal char- 
 acter, though the letters were sent in re- 
 sponse to a decoy letter, since it does not 
 appear that the accused was solicited to 
 use the mails and thus to commit an offence ; 
 U. S. v. Grimm, 50 Fed. 528. 
 
 A decoy letter placed in a sealed envelope 
 and addressed to a fictitious person in a 
 place where there was no post-office was 
 wrapped up in a newspaper, enclosed in an 
 ordinary paper wrapper, sealed and properly 
 stamped and directed as the envelope inside 
 the packet, and in this condition was handed 
 by a post-office inspector and placed by him 
 as a decoy in a basket kept for improperly 
 illegibly addressed mail matter. It was held 
 that this was not a mailing of the packet, 
 and that it did not become mail matter ; 
 U. S. v. Rapp, 30 Fed. 818. A letter with a 
 fictitious address which cannot be delivered 
 is "not intended to be conveyed by mail" 
 within the meaning of R. S. sec. 3891, pro- 
 viding a penalty for embezzling; U. S. v. 
 Denicke, 35 Fed. 407. 
 
 Decoys are permissible to entrap criminals, 
 or to present opportunity to those having 
 criminal intent to, or who are willing to, 
 commit crime, but not to create criminals ; 
 U. S. v. Healy, 202 Fed. 349 (selling liquor 
 to an Indian). 
 
 DECREE. The judicial decision of a liti- 
 gated cause by a court of equity. It is also 
 applied to the determination of a cause in 
 courts of admiralty and probate. It is ac- 
 curate to use the word judgment as applied 
 to courts of law and decree to courts of 
 equity, although the former term is now 
 used in a larger sense to include both. 
 There is, however, a distinction between the 
 two which is well understood, and may wise- 
 ly be preserved as tending to keep before 
 the»mind the distinction betwen the two ju- 
 risdictions — quite as fundamental with re- 
 spect to the final determination of a cause 
 as to the forms of procedure and the prin- 
 ciples of jurisprudence applied by the two 
 tribunals. Even the modern tendency of 
 courts of law to avail themselves of equita- 
 ble forms of procedure and principles of de- 
 cision has left undisturbed the well-defined 
 line of demarcation between the judgment at 
 law and the decree in equity. It is stated 
 by an able writer, thus : "A judgment at 
 law was either simply for the plaintiff or 
 for the defendant. There could be no quali- 
 fications or modifications of the judgment. 
 But such a judgment does not always touch 
 the true justice of the cause or put the
 
 DECREE 
 
 803 
 
 DECREE 
 
 parties in the position they ought to occupy. 
 While the plaintiff may be entitled, in a giv- 
 en case, to general relief, there may be some 
 duty connected with the subject of litiga- 
 tion which he owes to the defendant, the 
 performance of which, equally with the ful- 
 filment of his duty by the defendant, ought, 
 in a perfect system of remedial law, to be 
 exacted. This result was attained by the 
 decree of a court of equity which could be 
 so moulded, or the execution of which could 
 be so controlled and suspended, that t lie- 
 relative duties and rights of the parties 
 could be secured and enforced;" Bisph. Eq. 
 § 7. 
 
 It necessarily springs from the nature of 
 the chancery jurisdiction that its determi- 
 nations should be cast in a mould differing, 
 toto coelo, from a judgment at law, and it 
 would hardly be an exaggeration to say that 
 the essential character of the decree, as de- 
 scribed by the author quoted, is to be found 
 in the literal application of the fundamental 
 maxim, "He who seeks equity must do eq- 
 uity." Accordingly, it is said that a court 
 of equity will always reach, by a direct de- 
 cree, what would otherwise be accomplished 
 by a circuity of proceedings; Dodd v. Wil- 
 son, 4 Del. Ch. 410. And even when a com- 
 plainant is entitled to relief which it is in- 
 equitable to grant except upon a coudition 
 to be performed by him springing from an 
 obligation of equity aud good conscience, 
 though not from legal right, a chancellor may 
 make a decree only upon such condition; 
 Willard v. Tayloe, 8 Wall. (U. S.) 557, 19 L. 
 Ed. 501; Bisph. Eq. § 43. In such case, 
 when something remains to be done by the 
 party in order to entitle him to relief, while 
 no present decree can be made, as the decree 
 must be absolute and final and not contin- 
 gent, the court will enter an interlocutory 
 decree and suspend the entry of a final de- 
 cree until the performance of such condi- 
 tion ; Pleasanton v. Eaughley, 3 Del. Ch. 1124; 
 and in default thereof in a reasonable time 
 dismiss the bill; Pleasanton v. Raughley, 4 
 Del. Ch. 43. The doctrine of the wile's eq- 
 uity is a familiar instance of this principle. 
 
 Decrees are either interlocutory or final. 
 This distinction is well recognized and im- 
 portant; Comely v. Marckwald, 131 U. S. 
 159, 9 Sup. Ct. 744, 33 L. Ed. 117; Richmond 
 v. Atwood, 52 Fed. 10, 2 C. C. A. 607, 17 L. 
 R. A. 015 (citing many cases and discussing 
 the distinction at large), in the strictesl 
 sense all decrees are Interlocutory until sign- 
 ed and enrolled; L' Dan. Ch. Pr. 6th Am. ed. 
 987, n. 1; but it is nut In this sense that the 
 terms are in practice used. But while there 
 is a distinction well understood, it is not al- 
 ways easy of exact definition. The exist- 
 ence of the two classes is, however, neces- 
 sary in American chancery courts, as the 
 right of appeal is frequently confined to final 
 decrees, as in the federal courts. The form- 
 
 er is entered on some plea or issue ai 
 in the cause which does not decide the main 
 question; the latter settles the matter in dis- 
 pute ; and a final decree has the same effect 
 as a judgment at law: 2 Madd. 462; 1 Ch. Ca. 
 27; 2 Vera 89; 1 Brown, P. C. 287. See 7 
 Viner, Abr. 394; 7 Comyns, Dig. 445; 1 Belt, 
 Suppl. Ves. 223; McGarrahan v. Maxwell, 2S 
 CaL 7."., N. - .. For forms of decrees, see K 
 Decrees; 2 Dan Ch. Pr. 986. 
 
 The federal equity rule No. 71 fin effect 
 Feb. 1, 1913, 33 Sup. Ct. xxxviiii pr 
 that decrees shall not recite the pleadings 
 nor any other prior proceedings. 
 
 Final Decree. One which finally disposes 
 of a cause, so that nothing further is left 
 for the court to adjudicate. See 2 Dan. Ch. 
 Pr. 994, n. 
 
 A decree which determines the particular 
 cause. It is not confined to those which ter- 
 minate all litigation on the same right 1 
 Kent 316. 
 
 A decree which leaves the case in such con- 
 dition that, if on appeal there be an affirm- 
 ance, nothing remains for the court below, 
 but to execute it. Lodge v. Twell, 135 U. S. 
 232, 10 sup. Ct 745, 34 L. Ed. 153; Mower v. 
 Fletcher, 114 U. S. 127, 5 Sup. Ot 799, 29 
 L. Ed. 117; see Ilaseltine v. Central Bank, 
 
 183 U. S. 131, 22 Sup. Ct 49, 46 L. Ed. 117. 
 A decree which disposes ultimately of the 
 
 suit Ad. Eq. "7.",. Alter such decree has 
 been pronounced, the cause is at an end, and 
 no further hearing can be had ; id. ': vs : 
 Lakin v. Lawrence, 195 -Mass. 27, SO N. B. 
 578. 
 
 No court can reverse or annul its decree 
 after the term in which it w 1, nor 
 
 can a decree be changed or modified so as 
 substantially to vary or affect it; Illinois v. 
 R. Co., 1S4 U. S. 77, 22 Sup. Ct 300, 16 L 
 Ed. 1 10, citing prior [1904] 1 K. B. 
 
 fi; Bissell Carpet-Sweeper Co. v. Sweeper Co., 
 72 Fed. 545, 19 C. C. A. 25; Marshall En- 
 gine Co. v. Engine Co., 203 Mass. 410, 89 N. 
 E. 548; nor even on petition for rehearing 
 where error in the findings is shown; Pettit 
 v. One steel Lighter, 104 Fed. 11102; 1 
 to correct Clerical mistakes; Cameron v. Mc- 
 Roberts, 3 Wheat 591; Illinois 7. R. Co., 
 
 184 T. S. 77. 22 Sup. Ct 300, W L. Ed. 440; 
 [19dl] 1 K. B. 694; or to reinstate a cause 
 dismissed by mistake; Id. The Palmyra, 12 
 Wheat. 10, 6 L. Ed. 531 j and a mistake in 
 an order may he rectified while an appeal 
 is pending; [1903] P. 88. in equity jurisdic- 
 tion of the cause is sometimes retained to 
 make further orders for executiiiLr the decree 
 which may result In modifying details of the 
 original decree; Mootry v. Grayson, 104 Fed. 
 613, M C 0. A. 83; and in admiralty a bill 
 of review may be allowed after the term, 
 on petition of the libellant, who. being him- 
 self free from fraud or negligence, Is the 
 victim of what is equivalent to fraud; Hall 
 v. Chisholm, 117 Fed. 807, 55 C. C. A. 31,
 
 DECREE 
 
 804 
 
 DECREE 
 
 where the cases are reviewed; in this case 
 certiorari was refused; Chisholm v. Hall, 
 191 U. S. 571, 24 Sup. Ct. 843, 48 L. Ed. 307. 
 
 A decree may be impeached for fraud in 
 obtaining it, but for this purpose a bill of 
 review is not available, being a continuance 
 of the original litigation ; an original bill 
 must be resorted to as a new and independ- 
 ent litigation and it will lie pending an ap- 
 peal from the original decree; Dowagiac Mfg. 
 Co. v. Mfg. Co., 155 Fed. 524, 84 C. C. A. 
 38. In such case relief can be granted only 
 on the ground of fraud in procuring the 
 decree and not of error in granting it; Mc- 
 Sherry Mfg. Co. v. Mfg. Co., 100 Fed. 948, 
 89 C. C. A. 26. 
 
 Prior to the establishment of the circuit 
 courts of appeals there was an appeal to the 
 United States supreme court only from final 
 decrees of the circuit courts ; U. S. Rev. 
 Stat. § 692; and the same is still true of 
 appeals from those courts; U. S. Rev. Stat. 
 1 Supp. 903; except that special provision is 
 made for an appeal within a limited time 
 directly to the circuit court of appeals 
 from an order granting or refusing an inter- 
 locutory injunction or appointing a receiver, 
 notwithstanding that an appeal from a final 
 decree might be taken directly to the su- 
 preme court; Jud. Code § 129, U. S. Comp. 
 St. Supp. (1911) 194. An order modifying 
 an interlocutory decree for a broad per- 
 petual injunction, so as to permit a limit- 
 ed sale of the ' articles of which the sale 
 was restrained, is appealable under this 
 act; Bissell Carpet-Sweeper Co. v. Sweeper 
 Co., 72 Fed. 545, 19 C. C. A. 25, where the 
 right of appeal and the different kinds of de- 
 crees in England and the United States are 
 elaborately discussed. The omission of the 
 word "final" in section 5 of the Act of 
 March 3, 1S91, does not extend the right of 
 appeal to any question of jurisdiction in ad- 
 vance of final judgment or decree ; McLish v. 
 Roff, 141 U. S. 661, 12 Sup. Ct. 118, 35 L. 
 Ed. 893. Accordingly, the question what is 
 a final decree is one of constant occurrence 
 and importance as determining the jurisdic- 
 tion of the appellate courts. The same 
 question arises under the constitutional and 
 statutory regulations of appeals in- many 
 of the states, although in some of them the 
 right of appeal is not limited to final de- 
 crees ; e. g. Delaware, where it is extended 
 to interlocutory decrees or orders, if prayed 
 before the first day of the following term, 
 while it may be taken from a final decree 
 within two years after it is signed. 
 
 Another reason why the distinction is im- 
 portant is that a final decree, entered of rec- 
 ord and not directed to be without prejudice 
 is a bar to another bill filed between the 
 same parties for the same subject-matter; 
 Cochran v. Couper, 2 Del. Ch. 27. 
 
 In England the question whether a decree 
 or order is final or interlocutory is in many 
 cases material, as affecting the right or the 
 
 time of appeal, and it has been much dis- 
 cussed with some contrariety of opinion. 
 In [1903] 1 K. B. 547 (C. A.), Lord Alver- 
 stone, C. J., stated "the real test" to be 
 whether the order did in fact finally dispose 
 of the right of the parties, without respect 
 to what would have been the effect of the 
 order if the case had been decided the other 
 way, and the court of appeal unanimously so 
 decided, following the decision in 9 Q. B. D. 
 62, and disapproving a later ruling in [1891] 
 1 Q. B. (C. A.) 734, where it was held that 
 an order would be considered interlocutory 
 unless "whichever way it went it would 
 finally determine the right of the parties," 
 and which was cited as authority in [1902] 
 1 Ch. 29. Subsequently it was said by 
 Cozens-Hardy, M. R., in [1907] 2 Ch. 145, 
 that only a short time before the full court 
 was summoned "with a view to laying down 
 some definite pronouncement or rule" on the 
 question "what order is interlocutory and 
 what is final," characterized by him as "un- 
 doubtedly one of very great difficulty," but 
 the court had declined to do so, confining it- 
 self to the decision of the particular case, 
 and this course he proposed to follow. In 
 the case to which he referred, [1906] 2 K. B. 
 569, Collins, M. R., emphatically disapproved 
 of "the enunciation of any general rule on 
 the question what orders are final and what 
 interlocutory," and considered that it should 
 only be done by general rule of court. 
 
 In this country the same difficulty of ex- 
 act definition was expressed by Mr. Justice 
 Brown, who said that "probably no question 
 of equity practice has been the subject of 
 more frequent discussion in this court," and 
 he reviewed the cases, remarking that they 
 "are not altogether harmonious"; McCourkey 
 v. Ry. Co., 146 U. S. 536, 13 Sup. Ct. 170, 36 
 L. Ed. 1079; the principal ones being also 
 collected by Mr. Justice Blatchford in Key- 
 stone Manganese & Iron Co. v. Martin, 132 
 U. S. 91, 10 Sup. Ct. 32, 33 L. Ed. 275. 
 
 Where the whole law of a case is settled 
 by a decree, and nothing remains to be 
 done, unless a new application be made at 
 the foot of the decree, the decree is a final 
 one so far as respects a right of appeal ; 
 French v. Shoemaker, 12 Wall. (U. S.) 86, 20 
 L. Ed. 270; and so is a decree dismissing a 
 bill with costs, although they be afterwards 
 taxed and decree entered for them; Fowler 
 v. Hamill, 139 U. S. 549, 11 Sup. Ct. 663, 35 
 L. Ed. 266; but a decree of foreclosure and 
 sale is not final, in the sense which allows 
 an appeal from it, so long as the amount 
 due upon the debt must be determined, and 
 the property to be sold ascertained and de- 
 fined ; North Carolina R. Co. v. Swasey, 23 
 Wall. (U. S.) 405, 23 L. Ed. 136; see Jones 
 v. Davenport, 45 N. J. Eq. 77, 17 Atl. 570; 
 nor is an order remanding a case to the state 
 court; Joy v. Adelbert College, 146 U. S. 355, 
 13 Sup. Ct. 186, 36 L. Ed. 1003; but a de- 
 cree for foreclosure and sale of mortgaged
 
 DECREE 
 
 805 
 
 DECREE 
 
 premises is final and may be appealed from 
 without waiting for the return and confirma- 
 tion of the sale by a decretal order ; Michoud 
 v. Girod, 4 How. (U. S.) 503, 11 L. Ed. 107(5. 
 And so is a decree ordering the dismissal of 
 a libel if not amended within ten days, 
 where an appeal is taken without amending 
 it; The Three Friends, 166 U. S. 1, IT Sup. 
 Ct. 495, 41 L. Ed. 897. When the finality is 
 in doubt, and was negatived by the court 
 below, but is claimed in the Supreme Court, 
 the doubt will be resolved against finality; 
 McGourkey v. Ry. Co., 146 U. S. 536, 13 Sup. 
 Ct. 170, 36 L. Ed. 1079. 
 
 A decree fixing the priority of claims 
 against an insolvent corporation, and di- 
 recting the sale of its property for their 
 payment, is a final decree within equity rule 
 88, relating to rehearings; Hoffman v. Knox, 
 50 Fed. 484, 1 C. C. A. 535. A decree is final 
 which disposes of every matter of conten- 
 tion between the parties, except as to the 
 amount of one severable item, not relating 
 to appellant, and refers the case to a master 
 to ascertain that ; Hill v. R. Co., 140 U. S. 52, 
 11 Sup. Ct. 690, 35 L. Ed. 331. 
 
 If the decree decides the rights to prop- 
 erty and orders it to be delivered up or sold, 
 or adjudges a sum of money to be paid, and 
 the party is entitled to have such decree 
 carried into immediate execution, it is a 
 final decree ; Forgay v. Conrad, 6 How. (U. S.) 
 203, 12 L. Ed. 404. In such cases it is held 
 that the decree is final upon the merits, and 
 the ulterior proceedings, as in the foreclosure 
 case, constitute but a mode of executing 
 the original decree ; Michoud v. Girod, 4 
 How. (U. S.) 503, 11 L. Ed. 1076. 
 
 The multiplicity of cases on this subject 
 is too great for citation here, but the prin- 
 ciple applied is illustrated by those cited, 
 and as to a particular case the course of 
 decisions must be critically examined. Cas- 
 es will be found collected in notes to U. S. 
 Rev. Stat. § 692 and to 2 Dan. Ch. Pr., 6th 
 Am. ed. ch. xxvi. sec. 1. See Judgment. 
 
 A consent decree binds only the consent- 
 ing parties; Myllius v. Smith, 53 W. Va. 173, 
 44 S. E. 542; and is not binding upon t lie 
 court; Ex parte Loung June, 160 Fed. 259. 
 It cannot be modified without consent, even 
 at the same term ; Seiler v. Mfg. Co., 50 W. 
 Va. 208, 40 S. E. 547; and the consent may 
 be withdrawn before entry; Herold v. Craig. 
 59 W. Va. 353, 53 S. E. 466. 
 
 Interlocutory Decree. An adjudication or 
 order made upon some point arising during 
 the progress of a cause which does not de- 
 termine finally the merits of the question or 
 questions involved. Neither the courts nor 
 the text-writers have satisfactorily defined 
 this term. As was well said by Baldwin. J., 
 "The difficulty is in the subject itself; for, 
 by various gradations, the interlocutory de- 
 cree may be made to approach the final de- 
 cree, until the line of discrimination becomes 
 too faint to be readily perceived." Cocke's 
 
 Adm'r v. Gilpin, 1 Rob. (Va.) 27. The real 
 matter of Importance is to define what is a 
 final decree, and that being done, it may be 
 generally stated that every other order or 
 decree made during the progress of a cause 
 in chancery is interlocutory. The test which 
 is to be derived from the cases can hardly 
 be better stated than in a late case, thus: 
 
 Where something more than the ministerial 
 execution of the decree as rendered is left 
 to be done, the decree is interlocutory, and 
 not final, even though it settles the equities 
 of the bill; Lodge v. Twell, 135 U. S. 282, 
 10 Sup. Ct. 745, 34 L. Ed. 1".:. 
 
 As every decree inter partes is either final 
 or interlocutory, all that has been said upon 
 the former head, with the citations, mnst 
 also be read in connection with this. 
 
 Decree Pro Confesso. An order or decree 
 of a court of chancery that the allegations 
 of the bill be taken as confessed, as against 
 a defendant in default, and permitting the 
 plaintiff to go on to a hearing ex parte. 
 
 "A decree pro confesso is one entered when 
 the defendant has made default by not ap- 
 pearing in the time prescribed by the rules 
 of court. A decree nisi is drawn by the 
 plaintiff's counsel, and is entered by the 
 court as it is drawn. A decree, when the 
 bill is taken pro confesso, is pronounced by 
 the court alter hearing the pleadings and 
 considering the plaintiff's equity;'' Freem. 
 Judg. § 11. 
 
 Such a decree is also entered when the 
 defendant, having appeared, has not answer- 
 ed. The effect of such a decree is that the 
 facts set forth in the bill are taken as true, 
 and a decree made thereon according to the 
 equity of the case. It was formerly the prac- 
 tice to put the plaintiff to his proof of the 
 substance of the bill ; Rose v. Woodruff. 4 
 Johns. Ch. (N. Y.) 547; 1 Dan. Ch. Pr., 5th 
 Am. ed. 517, n.; but the practice of taking 
 the bill pro confesso is now generally estab- 
 lished; id. 518; and the subject is, in most 
 courts of chancery, regulated by rule of 
 court. 
 
 In such decree, in admiralty as well as in 
 equity, the amount of damages must be as- 
 certained from the evidence and not from 
 the allegations of the libel or bill : Cape 1-Var 
 Towing & Transp. Co. v. Pearsall, !»<) 1 i .i. 
 435, :;:: O. C. A. lc.l. 
 
 The usual modern practice is substantially 
 that provided in Equity Rules IB, 17. of the 
 United States courts (33 >"u}k Ct. xxiiii. I'p- 
 
 on motion, it appearing from the record that 
 
 the farts warrant it, an order is entered that 
 the bill be taken pro confesso, and the cause 
 
 proceeds c.r parte, and the court may pro- 
 ceed to a final decree after thirty days from 
 the entry of the order. 
 
 Such ad not be entered when the 
 
 bill contains a great lack of precision; Mar- 
 shall v. Tenant, L' J. J. Marsh. (Ky.) 155, V.) 
 Am. Dec. 126; but only when the allegations 
 of the bill are specific, and the defendant
 
 DECREE 
 
 806 DECRETALES BONIFACII OCTAVI 
 
 has been properly served; Harmon v. Camp- 
 bell, 30 111. 25; Boston v. Nichols, 47 111. 
 353; Colerick v. Hooper, 3 Ind. 31(5, 56 Am. 
 Dec. 505; Russell v. Lathrop, 122 Mass. 302. 
 When only one defendant answers, but 
 he disproves the whole case made by the 
 bill, a decree pro confesso cannot be entered 
 against those who fail to answer; Ashby v. 
 Bell's Adm'r, 80 Va. 811. 
 
 A decree pro confesso cannot be safely en- 
 tered against an infant; 30 Beav. 148; Bank 
 of U. S. v. Ritchie, 8 Pet. (U. S.) 128, 8 L. 
 Ed. 890; Daily's Adm'r v. Reid, 74 Ala. 415; 
 Quigley v. Roberts, 44 111. 503;. Tucker v. 
 Bean, 65 Me. 352; Wells v. Smith, 44 Miss. 
 296; Mills v. Dennis, 3 Johns. Ch. (N. Y.) 
 367; though this is sometimes done on con- 
 sent of his solicitor; Walsh v. Walsh, 116 
 Mass. 377, 17 Am. Rep. 162. 
 
 Equity Rule 8 (S. C. of U. S.; 33 Sup. Ct. 
 xxi) provides: "If a mandatory order, in- 
 junction, or decree for specific performance 
 of any act or contract be not complied with, 
 the court or a judge, besides, or instead of, 
 proceedings against the disobedient party 
 for a contempt or by sequestration, may by 
 order direct that the act required to be done, 
 be done, so far as practicable, by some other 
 person appointed by the court or judge, at 
 the cost of the disobedient party, and the 
 act, when so done, shall have like effect as 
 if done by him." See Writ of Assistance. 
 I IV Legislation. In some countries, as in 
 France, some acts of the legislature or of the 
 sovereign, which have the force of law are 
 called decrees: as, the Berlin and Milan de- 
 crees. 
 
 DECREE NISI. In English Law. A de- 
 cree for a divorce, not to take effect till aft- 
 er such time, not less than six months from 
 the pronouncing thereof, as the court shall 
 from time to time direct. During this period 
 any person may show cause why the decree 
 should not be made absolute ; 29 Vict. c. 32, 
 s. 3 ; 23 & 24 Vict. c. 144, s. 7 ; 2 -Steph. 
 Com. 281; Mozl. & W. Diet. 
 
 The term is also sometimes applied to a 
 decree entered provisionally to become final 
 at a time therein named, unless cause is 
 shown to the contrary. 
 
 DECREPIT (Ft. decrepit ; Lat. decrepitus). 
 Infirm ; disabled, incapable, or incompetent, 
 from either physical or mental weakness or 
 defects, whether produced by age or other 
 cause, to such an extent as to render the in- 
 dividual comparatively helpless in a personal 
 conflict with one possessed of ordinary health 
 and strength. Hall v. State, 16 Tex. App. 
 11, 49 Am. Rep. 824. 
 
 DECRETAL ORDER. An order made by 
 the court of chancery, upon a motion or peti- 
 tion, in the nature of a decree. 2 Dan. Ch. 
 Pr. 638. 
 
 DECRETALES BONIFACII OCTAVI. A 
 supplemental collection of the canon law, 
 
 published by Boniface VIII. in 1298, called, 
 also, Liber Sextus Decretalium (Sixth Book 
 of the Decretals). 1 Kaufm. Mackeldey, Civ. 
 Law 82, n. See Decretals. 
 
 DECRETALES GREG0RII N0NI. The 
 
 decretals of Gregory the Ninth. A collection 
 of the laws of the church, published by order 
 of Gregory IX. in 1227. It is composed of 
 five books, subdivided into titles, and each 
 title is divided into chapters. They are cited 
 by using an X (or extra); thus, Cap. & X de 
 Regulis Juris, etc. 1 Kaufm. Mackeld. Civ. 
 Law 83, n. ; Butler, Hor. Jur. 115. 
 
 DECRETALS. Canonical epistles, written 
 by the pope alone, or by the pope and cardi- 
 nals, at the instance or suit of one or more 
 persons, for the ordering and determining of 
 some matter in controversy, and which have 
 the authority of a law in themselves. 
 
 The decretals were published in three volumes. 
 The first volume was collected by Raymundus Bar- 
 cinius, chaplain to Gregory IX., about the year 1227, 
 and published by him to be read in schools and 
 used in the ecclesiastical courts. The second vol- 
 ume is the work of Boniface VIII., compiled about 
 the year 1298, with additions to and alterations of the 
 ordinances of his predecessors. The third volume 
 is called the Clementines, because made by Clem- 
 ent V., and was published by him in the council of 
 Vienna, about the year 1308. To these may be added 
 the Extravagantes of John XXII. and other bishops 
 of Rome, which, relatively to the others, are called 
 Novellce Constitutiones. Ridley's View, etc. 99, 100 ; 
 1 Fournel, Hist, des Avocats 194, 195. 
 
 The false decretals were forged in the names of 
 the early bishops of Rome, and first appeared about 
 A. D. 845-850. The author of them is not known. 
 They are mentioned in a letter written in the name 
 of the council of Quierzy, by Charles the Bald, to 
 the bishops and lords of France. See Van Espen 
 Pleury, Droit de Canon, by Andre. 
 
 The decretals constitute the second division of the 
 Corpus. Juris Canonici. 
 
 DECRETUM GRATIANI. A collection of 
 ecclesiastical law made by Gratian, a Bo- 
 lognese monk, in 1139-1152. It is the oldest 
 of the collections constituting the Corpus Ju- 
 ris Canonici. 1 Kaufm. Mackeld. Civ. Law 
 81 ; 1 Bla. Com. 82 ; Butler, Hor. Jur. 113. 
 
 D ECU RIO. In Roman Law. One of the 
 chief men or senators in the provincial towns. 
 The decuriones. taken together, had the en- 
 tire management of the internal affairs of 
 their towns or cities, with powers resembling 
 in some degree those of our modern city 
 councils. 1 Spence, Eq. Jur. 54; Calvinus, 
 Lex. 
 
 D ED BAN A. An actual homicide or man- 
 slaughter. Toml. 
 
 DEDI (Lat. I have given). A word used 
 in deeds and other instruments of convey- 
 ance when such instruments were made in 
 Latin. 
 
 The use of this word formerly carried with 
 it a warranty in law, when in a deed; for 
 example, if in a deed it was said, "dedi (I 
 have given), etc., to A B," there was a war- 
 ranty to him and his heirs. But this is no 
 longer so. 8 & 9 Vict. c. 106, s. 4. Brooke,
 
 DEDI 
 
 807 
 
 DEDICATION 
 
 Abr. Guaranty, pi. 85. The warranty thus 
 wrought was a special warranty, extending 
 to the heirs of the feoffee during the life of 
 the donor only. Co. Litt. 3S4 6; 4 Co. 81; 
 5 id. 17; 3 Washb. R. P. 071. Dedi is said to 
 be the aptest word to denote a feoffment; 2 
 Bla. Com. 310. The future, dabo, is found in 
 some of the Saxon grants. 1 Spence, Eq. 
 Jur. 44. See Grant. 
 
 DEDI ET CONCESSI (Lat. I have given 
 and granted). The aptest words to work a 
 feoffment They are the words ordinarily 
 used, when instruments of conveyance were 
 in Latin, in charters of feoffment, gift, or 
 grant. These words were held the aptest; 
 though others would answer; Co. Litt 384 b; 
 1 Steyh. Com. 114 ; 2 Bla. Com. 53, 310. See 
 Covenant. 
 
 DEDICATION. An appropriation of land 
 to some public use, made by the owner, and 
 accepted for such use by or on behalf of the 
 public. Barteau v. West, 23 Wis. 410; Trus- 
 tees of M. E. Church of Iloboken v. City of 
 Hoboken, 33 N. J. L. 13, 97 Am. Dee. 696; 
 Smith v. City of San Luis Obispo, 95 Cal. 
 403, 30 Pac. 591 ; Brown v. Gunn, 75 Ga. 441. 
 The intentional appropriation of land by 
 the owner to some proper public use, reserv- 
 ing to himself no rights therein inconsistent 
 with the full exercise and enjoyment of such 
 use. Northport Wesleyan Grove Camp Meet- 
 ing Ass'n v. Andrews, 104 Me. 342, 71 Atl. 
 1027, 20 L. R. A. (N. S.) 976. 
 
 It was unknown to the civil law; New Or- 
 leans v. U. S., 10 Pet. (U. S.) 662, 9 L. Ed. 
 573; and is said to have been the only meth- 
 od of conferring certain rights on the public 
 at common law; Post v. Pearsall, 212 Wend. 
 (N. Y.) 425; Stevens v. Nashua, 40 N. II. 192. 
 It need not be by deed or in writing, but 
 may be by act in pais, and the fee need not 
 pass, since it has reference to possession and 
 not to ownership; Benn v. Hatcher, 81 Va. 
 25, 59 Am. Rep. 645. See cases collected in 
 9 L. R. A. 551, note. 
 
 Express dedication is that made by deed, 
 vote, or declaration. 
 
 Implb d dedication is that presumed from 
 an acquiescence in the public use, or from 
 some act of the owner which operates against 
 him by way of estoppel in pais; Wood v. See- 
 ly, 32 N. Y. 110 ; Brown v. Manning, 6 Ohio, 
 29S, 27 Am. Dec. 255. 
 
 To be valid it must be made by the owner 
 of the fee; 5 B. & Aid. 454; Ward v. Davis, 
 3 Sandf. (N. Y.) 502; 4 Campb. 16; Forney 
 v. Calhoun County. 84 Ala. 215, 4 South. L53; 
 or, if the fee be subject to a naked trust, by 
 the equitable owner; Cincinnati v. White, 6 
 Pet. (U. S.) 431, S L. Ed. 452; Williams v. 
 Society, 1 Ohio St. 478; and to the public at 
 large; Post v. Pearsall, 22 Wend. (N. ST.) 
 425; State v. Wilkinson, 2 Yt. 480, 21 Am. 
 Dec. 500; New Orleans v. U. S., 10 Pet (U. 
 S.) 002, 9 L. Ed. 573; Doe v. Jones, 11 Ala. 
 63. The existence of a corporation as gran- 
 
 tee is not required, as the public is an ever- 
 existing grantee capable of taking for public 
 use; Cincinnati v. w bite, 6 l 431, 
 
 8 L. Ed. 452; Trustees ■ f M i:. Church of 
 ■ n v. City of i .i. l. 13, 
 
 97 Am. Dee. 606; Ruth. ■ r, 38 
 
 Mo. 317; Town of Warren v. Town of 
 sonville, 15 111. 236, 58 A 
 
 In making the appropriation alar 
 
 formality is required, but any act ' 
 Hon, whether written or oral, which i . 
 es an intent to dedicate, -will a: 
 to a dedication, if ■■ by the public, 
 
 and will conclude the donor from ever after 
 asserting* any right Incompatible with the 
 public use; Washb. Easem. L33; n M. & W. 
 827; Cincinnati v. White, 6 Pet (J. 8.) 431, 
 8 I.. Ed. 452; Post v. Pearsall, 22 Wend. (N. 
 V.i 150; Bobbs v. Lowell, 19 Pick. I M 
 105, 31 Am. Dee. 145; State v. Wilkinson, 2 
 vt. 480, -l Am. Pee. 560; Trustees of I 
 v. Fox, 9 B. Monr. (Ky.) 201 : Mayer .v < 
 cil of Macon v. Franklin, 12 Ca. 239; Mis- 
 souri institute for Education of Blind v. 
 How, 27 Mo. 211 ; Oswald v. Grenet 22 Tex. 
 91; Smith v. City of San I.< 
 Cal. 463, 30 Pac. 591; Dobson v. Hohenadel, 
 1 18 Pa. 367, 23 Atl. 1128; Taylor v. Philippi, 
 35 W. Va. 554, 14 S. EL 130; Land v. Smith, 
 44 La. Ann. 931, 11 South. 577; Western By. 
 of Alabama v. B. Co., 96 Ala. 272, 11 South. 
 483, 17 L. K. A. 474; Wolfe v. Town of Sul- 
 livan, 133 Ind. 331, 32 X. E. 1017; the vital 
 principle of the dedication being the intention 
 (animus dedicandi), which must he unequivo- 
 cally manifested, and clearly and satisfacto- 
 rily appear; Harding v. Jasper, 14 Cal. 642; 
 Village of White Bear v. Stewart, 40 Minn. 
 284, 41 X. W. 1045; Baker v. Vanderburg, 
 99 Mo. 378, 12 S. W. 462 : Shellhouse v. State, 
 110 Ind. 509, 11 N. E. 484 ; Waugh v. Leech, 
 2S 111. 491: Lee v. LaEe, 14 Mich. 
 Am. Dec. 220; Forney v. Calhoun Coun- 
 ty, 84 A l.i. 215, 4 South. 153; Hope v. Bar- 
 net t. 78 Cal. 9, 20 Pac 245; State v. Adkins, 
 42 Kan. 203, 21 Pac. 1 "<'■'.'. But it must be 
 determined from the acts and explanatory 
 declarations of the party in connection with 
 the surrounding circumstances; he cannot 
 subsequently testify as to what were his 
 real intentions; Fosslon v. Landry, 12.". Ind. 
 136, 24 X. E. 96; Lamar County v. Clements, 
 19 Tex. -".IT. If there be doubt as to wl 
 there was a dedication to public use, or only 
 for a temporary purpose, the intention of the 
 owner may be proved; Lamar County v. 
 Clements. 49 Tex. 347. 
 
 A mere acquiescence by the owner of land 
 in its occasional and varying use for travel 
 by the public is Insufficient to establish a ded- 
 ication thereof, as a street by adverse user; 
 Com. v. B, Co., 135 Pa. 256, l'.» Atl. 1051. 
 And, without any express appropriation by 
 the owner, a dedication may be presumed 
 from twenty years' use of his land by the 
 public, with his knowledge; lloole v. Atty.
 
 DEDICATION 
 
 808 
 
 DEDICATION 
 
 Gen., 22 Ala. 190; Noyes v. Ward, 19 Conn. 
 250; Lamed v. Lamed, 11 Mete. (Mass.) 421; 
 Smith v. State, 23 N. J. L. 130; Green v. 
 Oakes, 17 111. 249 ; 'Com. v. Cole, 26 Pa. 187 ; 
 or from any shorter period, if the use be 
 accompanied by circumstances which favor 
 the presumption, the fact of dedication being 
 a conclusion to be drawn, in each particular 
 case, by the jury, who as against the owner 
 have simply to determine whether by per- 
 mitting the public use he has intended a dedi- 
 cation ; 5 Taunt. 125 ; Denning v. Roonie, 6 
 Wend. (N. Y.) 651 ; Irwin v. Dixion, 9 How. 
 (U. S.) 10, 13 L. Ed. 25; State v. Hill, 10 
 Ind. 219; Whittaker v. Ferguson, 16 Utah, 
 240, 51 Pac. 9S0; Dimon v. People, 17 111. 
 416 ; 4 El. & Bl. 737. Public use of a right 
 of way over public land for seven years is 
 sufficient under U. S. R. S. § 2477; O'Kano- 
 gan County v. Cheetham, 37 Wash. 682, 80 
 Pac. 262, 70 L. R. A. 1027. But this pre- 
 sumption, being merely an inference from the 
 public use, coupled with circumstances indic- 
 ative of the owner's intent to dedicate, is 
 open to rebuttal by the proof of circumstanc- 
 es indicative of the absence of such an in- 
 tent; Bowers v. Mfg. Co., 4 Cush. (Mass.) 
 332; State v. Inhabitants of Strong, 25 Me. 
 297; Irwin v. Dixion, 9 How. (U. S.) 10, 13 
 L. Ed. 25 ; 7 C. & P. 578 ; City of St. Louis 
 v. Wetzel, 110 Mo. 260, 19 S. W. 534; McKey 
 v. Hyde Park, 134 U. S. 84, 10 Sup. Ct. 512, 
 33 L. Ed*. 860. Mere non-user for less than 
 the statutory period is not^ enough unless 
 coupled with evidence of < intention ; Wood 
 v. Hurd, 34 N. J. L. 91 ; Hoole v. Atty. Gen., 
 22 Ala. 190; 3 Bing. 447. 
 
 The statute of frauds does not apply to the 
 dedication of lands to the public; Godfrey 
 v. City of Alton, 12 111. 29, 52 Am. Dec. 476 ; 
 Rees v. Chicago, 38 111. 338; Harding v. Jas- 
 per, 14 Cal. 642. 
 
 Before acceptance, a dedication may be 
 revoked ; Bridges v. Wyckoff, 67 N. Y. 130 ; 
 San Francisco v. Canavan, 42 Cal. 541; but 
 only when no rights of other, persons inter- 
 vene. The death of the owner is a revocation 
 of a proffered dedication of streets, and an 
 acceptance thereafter by the village gives it 
 no right in the streets; People v. Kellogg, 
 67 Hun 546, 22 N. Y. Supp. 490. Where 
 one who has offered to dedicate land for a 
 public street, conveys such land before his 
 offer is accepted, the conveyance operates as 
 a revocation of the offer; Chicago v. Drexel, 
 141 111. 89, 30 N. E. 774; Schmitt v. San 
 Francisco, 100 Cal. 302, 34 Pac. 961. 
 
 There must be acceptance of either a com- 
 mon-law or a statutory dedication, either of 
 which is incomplete without it; Schmitz v. 
 Village of Glrmantown, 31 111. App. 284; Vil- 
 lage of Grandville v. Jenison, 84 Mich. 54, 47 
 N. W. 600. The American courts differ to 
 some extent as to whether an acceptance 
 must be more or less formal, by some com- 
 petent authority, or may be shown by gen- 
 
 eral public use or indirect official recogni- 
 tion or both. The underlying principles are 
 discussed in the leading case of Cincinnati 
 v. White's Lessee, which held that no par- 
 ticular form or ceremony of acceptance is es- 
 sential, but that "all that is required is the 
 assent of the owner of the land, and the fact 
 of its being used for the public purposes in- 
 tended by the appropriation"; Cincinnati v. 
 White, 6 Pet. (U. S.) 431, 8 L. Ed. 452 ; Da- 
 vid's Heirs v. New Orleans, 16 La. Ann. 404, 
 79 Am. Dec. 5S6 ; Cole v. Sprowl, 35 Me. 161, 
 56 Am. Dec. 696; but the acts which amount 
 to it must be plain and unequivocal; Baker 
 v. Johnston, 21 Mich. 349. It need not be 
 by the town or other municipal corporation, 
 nor need it be very specific, but acts by the 
 public at large are sufficient; Attorney Gen- 
 eral v. Abbott, 154 Mass. 323, 28 N. E. 346, 13 
 L. R. A. 251; as the construction of sewers 
 through land dedicated for a street, and filing 
 liens against abutting owners; Philadelphia 
 v. Thomas' Heirs, 152 Pa. 494, 25 Atl. 873; 
 or general ordinance or resolution accepting 
 all streets and parks dedicated, where land 
 is marked as such on a recorded plat; Los 
 Angeles v. McCollum, 156 Cal. 148, 103 Pac. 
 914; or sold under the description of bound- 
 ing on a certain street; City of Eureka v. 
 Armstrong, 83 Cal. 623, 22 Pac. 928, 23 Pac. 
 10S5 ; but the use of a street by the public, 
 to constitute acceptance, must be under a 
 claim of right; City of Eureka v. Croghan, 
 81 Cal. 524, 22 Pac. 693. 
 
 Acceptance is presumed if beneficial, and 
 this is shown by user; Abbott v. Cottage 
 City, 143 Mass. 521, 10 N. E. 325, 58 Am. Rep. 
 143; Guthrie v. New Haven, 31 Conn. 308; 
 San Francisco v. Canavan, 42 Cal. 541 ; Boyce 
 v. Kalbaugh, 47 Md. 334, 28 Am. Rep. 464; 
 Summers v. State, 51 Ind. 201. The dedica- 
 tion of a private way to the public without 
 acceptance does not constitute a public way ; 
 Slater v. Gunn, 170 Mass. 509, 49 N. E. 1017, 
 41 L, R. A. 26S ; Rozell v. Andrews, 103 N. Y. 
 150, 8N.E. 513 ; Bell v. City of Burlington, 
 68 la. 296, 27 N. W. 245; St. Louis v. Uni- 
 versity, 88 Mo. 155; Hayward v. Manzer, 70 
 Cal. 476, 13 Pac. 141. 
 
 There is no established standard as to 
 what use by the public will be sufficient to 
 constitute an acceptance of a dedication; 
 it is such use as would naturally follow from 
 the character of the place ; Winslow v. Cin- 
 cinnati, 9 Ohio S. & C. P. Dec. 89; the use 
 need only be such as the public needs de- 
 mand ; Taraldson v. Town of Lime Springs, 
 92 la. 187, 60 N. W. 658. Use by a compara- 
 tively small number of persons on foot dur- 
 ing the summer season of a short way from 
 a street to the seashore, being the kind of 
 use intended by the dedicator, is sufficient; 
 Phillips v. City of Stamford, 81 Conn. 408, 71 
 Atl. 361, 22 L. R. A. (N. S.) 1114 ; otherwise 
 of an alley through private land, used in 
 bringing in household supplies and removing
 
 DEDICATION 
 
 809 
 
 DEDICATION' 
 
 refuse; Brinck v. Collier, 56 Mo. 1G0 ; of 
 a wood so grown up with brush as to be Im- 
 passable by wagons and but little used ; Ros- 
 enberger v. Miller, CI Mo. App. 422; of a 
 road to some extent for two or three weeks ; 
 Laughlin v. City of Washington, C3 la. 652, 
 19 N. W. 819; a use by a few persons only 
 and merely for local purposes ; Green v. 
 Town of Canaan, 29 Conn. 157 ; and a per- 
 mitted use by neighbors for hauling wagons; 
 Fairchild v. Stewart, 117 la. 734, 89 N. W. 
 1075. Long continued use by a few persons 
 does not necessarily show an Intention on 
 the part of the public authorities to 
 the dedication; City of Rock Island v. Star- 
 key, 189 111. 515, 59 X. B. 971. See Phillips 
 v. City of Stamford, 81 Conn. 40S, 71 Ati. 
 361, 22 L. R. A. (N. S.) 1114. 
 
 In the case of a highway, the question has 
 been raised whether the public itself, as the 
 body charged with the repair, is the proper 
 party to make the acceptance. In England, 
 it has been decided that an acceptance by 
 the public, evidenced by mere use, is suffi- 
 cient to bind the parish to repair, without 
 any adoption on its part; 5 B. & Ad. 469; 
 2 N. & M. 583. In this country there are 
 cases in which the English rule seems to be 
 recognized; Remington v. Millerd, 1 R. I. 93; 
 though the weight of decision is to effect 
 that the towns are not liable, either for re- 
 pair or for injuries occasioned by the want 
 of repair, until they have themselves adopted 
 the way thus created, either by a formal ac- 
 ceptance or by indirectly recognizing it, as 
 by repairing it or setting up guide-posts 
 therein ; Thomp. Highw. 52 ; Page v. Town 
 of Weathersfield, 13 Vt. 424 ; Com. v. Kelly; 
 8 Gratt. (Va.) 632; Common Council of In- 
 dianapolis .v. McClure, 2 Ind. 147 ; Wright 
 v. Tukey, 3 Cush. (Mass.) 290; Colbert v. 
 Shepherd, 89 Va. 401, 16 S. E. 246; Philadel- 
 phia v. Thomas' Heirs, 152 Pa. 494, 25 Atl. 
 873; Gage v. R. Co., 84 Ala. 224, 4 South. 
 415; City of Galveston v. Williams, 69 Tex. 
 449, 6 S. W. 860 ; Rozell v. Andrews, 103 N. 
 Y. 150, 8 N. E. 513 ; Bell v. City of Burling- 
 ton, 68 la. 296, 27 N. W. 245; City of St. 
 Louis v. University, 88 Mo. 155; Hayward 
 v. Manzer, 70 Cal. 476, 13 Pac. 141. It has 
 been held that the acceptance, improvement, 
 and user by a city of a street or a portion of 
 a street as platted is equivalent to an accept- 
 ance of the whole tract platted; Heitz v. 
 City of St. Louis, 110 Mo. 618, 19 S. \Y. 735. 
 
 The authorities on this subject relate large- 
 ly to the dedication of land for a highway. 
 Such was the subject matter in the English 
 cases on which the doctrine rests; Dovaston 
 v. Payne, 2 H. Bl. 527, 2 Sm. L. Cas. 13S8; 
 11 East 370, where eight years user was held 
 to show sufficient acceptance ; and 2 Str. 909. 
 where four years was held Insufficient; while 
 in a much litigated case six years sufficed; 
 18 Q. B. 870. The English cases have not 
 shown a disposition to extend the principle 
 
 of dedication except so far as to recognize 
 it in the case of charitable uses (q. v.) under 
 43 Eliz. c. 4, or the general equity Jul 
 tion. There are cases of bridges; 14 
 317; 1 Man. & Gr. 31 : and 
 
 one over a ditch ; 2 Str. 1004 ; and a wharf 
 or landing; 5 B. & AM. 268; hut all these 
 are closely allied to roads or w; 
 
 But in this country there has grown up 
 what is often referred to as the American 
 doctrine, greatly extending the scope and op- 
 eration of the doctrine of dedication under 
 which it is applied equally well to any other 
 purpose which is for the benelit of the pub- 
 lic at large, as for a square, a common, a 
 landing, a cemetery, a school, or a monument ; 
 and the principles which govern in all 
 cases are the same, though they may be 
 somewhat diversified in the application, ac- 
 cording as they are invoked for one or anoth- 
 er of these objects ; Hunter v. "Trustees of 
 Sandy Hill, G Hill (X. Y.) 407; Klinkener v. 
 School Directors of McKeesport, 11 Pa. IH; 
 Huher v. Gazley, IS Ohio 18; Langley v. 
 Town of Gallipolis, 2 Ohio St. 107: Mayor, 
 etc., of the City of Macon v. Franklin, 12 
 Ga. 239; Olcott v. BannlL 4 X. H. :.;:; Den 
 v. Drummer, 20 N. J. L. 86, 40 Am. Dec. 213 ; 
 Rowan's Ex'rs v. Town of Portland. 8 B. 
 Monr. (Ky.) 234; Ward v. Davis. :; Sandf 
 (N. Y.) 502; Doe v. Town of Attica. 7 Ind 
 641; Gardiner v. Tisdale, 2 Wis. 153, 00 Am 
 Dec. 407; Archer v. Salinas City, 93 CaL 
 43, 28 Pac. 839, 16 L. R. A. 14."i; Attorney 
 General v. Abbott, 154 Mass. 323, 28 X. E. 
 346, 13 L. R. A. 251; Board of Com'rs of 
 Miami County v. Wilgus, 42 Kan. 4."7. 22 
 Pac. 615 ; Carpenteria School District v. 
 Heath, 56 Cal. 478; Beatty v. Kurtz. 2 Pet. 
 (U. S.) 566, 7 L. Ed. 521; State v. Wilkinson, 
 2 Vt. 4S0, 21 Am. Dec. 560; Redwood Cem- 
 etery Ass'n v. Bandy, 93 Ind. 240; Village 
 of Mankato v. Willard, 13 Minn. 13 (Gil. 1), 
 97 Am. Dec. 20S. 
 
 As to cases upon which rests the extension 
 of the doctrine to large parks and cemeteries, 
 see note in 16 Harv. L. Rev. 128. 
 
 It is usually said that land dedicated for 
 one purpose cannot be used for another; so 
 laud dedicated for a public square cannot be 
 used for the erection of a city hall ; Church 
 v. City of Portland, IS Or. 73, 22 Pac. 528, 6 
 L. R. A. (N. S.i 259 and note. 
 
 Equity will enjoin the diversion of land 
 from the purpose to which it was dedicated ! 
 Le Clereq v. Trustees of Town of Gallipolis. 
 7 Ohio, 217, pt. 1. 28 Am. Dec. 641 ; and the 
 legislature cannot divert it to a different 
 use; id.; but land dedicated for a spa Iflc 
 public use may he used for other purposes 
 reasonably in accord therewith, as modified 
 by changed conditions and cirrunistances; 
 Codman v. Crocker, 203 Mass. 146, 89 X. E. 
 177, 25 L. R. A. (X. S.) 980, where an act 
 authorizing a subway under a part of Bos- 
 ton Common was held not a diversion of the
 
 DEDICATION 
 
 810 
 
 DEDICATION 
 
 property from the purpose of its dedication 
 "for the common use of the inhabitants of 
 Boston as a training field and cow pasture." 
 
 A promise to donate land for public pur- 
 poses has been enforced, as where the prom- 
 isee has made improvements; L. R. 4 Ch. D. 
 73; Freeman v. Freeman, 43 N. Y. 34, 3 
 Am. Rep. 657; Neale v. Neale, 9 Wall. (U. 
 S.) 1, 19 L. Ed. 590 ; or where a school house 
 was erected on the faith of the promise; 
 Greenwood v. School Dist. No. 4, 126 Mich. 
 81, 85 N. W. 241. As the inchoate right of 
 dower is defeated by condemnation of lands 
 to public use ; see Eminent Domain ; it seems 
 to be held that dower is barred by the dedi- 
 cation of land to such use; Venable v. R. 
 Co., 112 Mo. 103, 20 S. W. 493, 18 L. R. A. 
 68 ; French v. Lord, 69 Me. 537 ; Gwynne v. 
 Cincinnati, 3 Ohio 24, 17 Am. Dec. 576 ; see 
 18 L. R. A. 79, note. 
 
 The doctrine of dedication has been characterized 
 as an anomaly in our law, due to the public policy 
 of effectuating individual action for public benefit ; 
 21 Harv. L. Rev. 356. And again, it is said that, 
 so far from being hampered in its application by 
 mere technical distinctions, the doctrine was called 
 into existence for the very purpose of escaping 
 from technical rules and limitations. Its very vital 
 breath and its justification for existence lie in the 
 disregard of existing technical limitations and in 
 recognition of the necessity for a resort to broad 
 views. Consequently, as fast as any new subject 
 or phase of public rights has been presented to the 
 courts, they have never hesitated to apply the doc- 
 trine to the new situation ; 16 Harv. L. Rev. 338, 
 where it is urged that it should be extended to 
 rights not merely of using another's real estate, but 
 of stripping it (or having it stripped) by or for the 
 use of the general public of portions of the soil— as 
 of coal or oil ; and it is suggested that on compli- 
 ance with certain conditions, viz.: 1. Of leaving the 
 private owners in possession and management (as 
 in the case of a public easement acquired by dedica- 
 tion over a private wharf), and, 2. Of paying for 
 the coal or oil as taken, such a dedication might 
 be required by legislation. 
 
 A common method of dedicating land for 
 public purposes, particularly in connection 
 with laying out towns, is by recording plats 
 on which are marked streets, public squares 
 and the like, and this is held either by stat- 
 ute or, where there is none, at common law, 
 to be a sufficient dedication to the public; 
 City of Madison v. Mayers, 97 Wis. 399, 73 
 N. W. 43, 40 L. R. A. 635, 65 Am. St. Rep. 
 127; London & S. F. Bank v. City of Oak- 
 land, 90 Fed. 691, 33 C. C. A. 237; and 
 such dedication upon a plat acknowledged 
 and recorded of land for county buildings 
 has been held to vest the fee in the county, 
 although the town failed to become the coun- 
 ty seat; Brown v. Manning, 6 Ohio, 29S, 27 
 Am. Dec. 255. So the sale of land by plat 
 designating streets and public squares op- 
 erates as a dedication ; Price v. Stratton, 45 
 Fla. 535, 33 South. 644; Florida E. C. R. 
 Co. v. Worley, 49 Fla. 297, 38 South. 618; 
 Corning & Co. v. Woolner, 206 111. 190, 69 N. 
 E. 53; Marsh v. Village of Fairbury, 163 
 111. 401, 45 N. E. 236; Van Duyne v. Mfg. 
 Co., 71 X. J. Eq. 375, 64 Atl. 149 ; Weisbrod v. 
 R. Co., 18 Wis. 35, 86 Am. Dec. 743; Com. 
 
 v. Beaver Borough, 171 Pa. 542, 33 Atl. 112 ; 
 Baltimore v. Frick, 82 Md. 77, 33 Atl. 435; 
 Meier v. R. Co., 16 Or. 500, 19 Pac. 610, 1 L. 
 R. A. 856. And see 9 L. R. A. 551, note. But 
 that it may so operate at common law there 
 must be an acceptance by the public in a 
 reasonable time; Village of Grandville y. 
 Jenison, 84 Mich. 54, 47 N. W. 600. 
 
 To constitute a common-law dedication by 
 plat requires the same certainty of descrip- 
 tion (or accuracy of indication on the plat) 
 as in other forms of conveyance; Sanders v. 
 Village of Riverside, 118 Fed. 720, 55 C. C. 
 A. 240, where it is said that "a dedication is 
 a mode of conveyance." When a plat has 
 been altered before filing so as apparently to 
 cut off one half of the street shown on it as 
 originally drawn, it operates as a dedication 
 of what remains only; Elliot v. Atlantic 
 City, 149 Fed. 849. 
 
 An offer to dedicate, followed by public 
 user under a claim of right, is a sufficient 
 dedication and acceptance; Delaware, L. & 
 W. R. Co. v. City of Syracuse, 157 Fed. 700 ; 
 Cook v. Harris, 61 N. Y. 448; Kennedy v. 
 Le Van, 23 Minn. 513; Buchanan v. Curtis, 
 25 Wis. 99, 3 Am. Rep. 23; Price v. Town 
 of Breckenridge, 92 Mo. 378, 5 S. W. 20 ; and 
 where the intention is clear a dedication was 
 held complete without acceptance or user ; 
 Point Pleasant Land Co. v. Cranmer, 40 
 N. J. Eq. 81. 
 
 The mere making of a survey or a map 
 of a plat, which is not recorded or exhibited 
 to the public and upon which no lots are 
 sold, is not a dedication of the streets there- 
 on ; Kruger v. Constable, 128 Fed. 908, 63 
 C. C. A. 634; and filing maps on which a 
 street was laid out did not make such a 
 street a public highway so far as the public 
 was concerned; Loughman v. R. Co., S3 App. 
 Div. 629, 81 N. Y. Supp. 1097. But filing the 
 plat in a public repository or publishing it 
 and selling lots by reference to it is a dedi- 
 cation ; Kruger v. Constable, 116 Fed. 722; 
 and if the lots are sold with reference to a 
 plat showing streets, the purchasers are en- 
 titled to have them remain open, whether ac- 
 cepted by the public or not; Village of Au- 
 gusta v. Tyner, 197 111. 242, 64 N. E. 378; 
 Conrad v. Land Co., 126 N. C. 776, 36 S. E. 
 282; and so of a park; Florida E. C. R. Co. 
 v. Worley, 49 Fla. 297, 38 South. 618. Where 
 lots are sold bounded on an unopened street, 
 the public has a right to the street, though 
 there was no acceptance or user by the pub- 
 lic ; Harrington v. City of Manchester, 76 
 N. H. 347, 82 Atl. 716. 
 
 The sale by plat is a dedication; Cum- 
 mings v. St. Louis, 90 Mo. 259, 2 S. W. 130 ; 
 and acceptance is presumed from purchases 
 by various persons; Carter v. City of Port- 
 land, 4 Or. 339; and the plat need not be 
 acknowledged or recorded ; Meier v. Ry. Co., 
 16 Or. 500, 19 Pac. 610, 1 L. R. A. 856. After 
 a sale by plat there can be no revocation;
 
 DEDICATION 
 
 811 
 
 DEDICATION 
 
 Brown v. Stark, 83 Cal. 630, 24 Pac. 162. 
 The dedication by plat may apply either to 
 a town site or a small tract. In the former 
 the purchasers and the public are identical, 
 but in the latter there may be an estoppel In 
 favor of purchasers and no acceptance by 
 the public; 9 llarv. L. Rev. 488; but the 
 private rights of the purchasers cannot be 
 enforced by the municipality; Village of 
 Augusta v. Tyner, 197 111. 242, 64 N. I 
 
 With respect to the rule that the purchaser 
 of lots by plat is entitled to have Btreets 
 kept open as shown <m a plat, a question 
 may arise whether his right applies only to 
 adjoining streets or to all streets on the 
 plat. As to the former his right is unques- 
 tioned, and many cases hold it to be clear in 
 the latter class; Collins v. Land Co., 128 
 N. C. 503, 39 S. B. 21, 83 Am. St. Rep. 720; 
 Wolfe v. Town of Sullivan, 133 Ind. 331, 32 
 N. E. 1017; Taylor v. Com., 29 Gratt (Va.) 
 780; In re Opening of Pearl St., Ill Pa. 
 565, 5 Atl. 430;- contra; 11 Out. App. 416; 
 Mahler v. P.runder. 92 Wis. 477, 66 N. W. 502, 
 31 L. R. A. 695; Haw ley v. Baltimore. 33 
 Md. 270; Pearson v. Allen, 151 Mass. 79, 23 
 N. E. 731, 21 Am. St. Rep. 426. 
 
 The mere filing of a map purporting to 
 show the original plan of a town, but never 
 authenticated nor proved in any manner to 
 be such, is not sufficient evidence of dedica- 
 tion : Terrell v. Town of P.loomfield, 20 S. 
 W. 2S9, 14 Ky. L. Rep. 577; but the streets 
 of a defective plat may be dedicated to the 
 public by conveyances made of lots according 
 to the plat; Smith v. City of St. Paul, 72 
 Minn. 472. 75 N. W. 70S. 
 
 Whether a corporation may dedicate land 
 to a public use is a question not extensively 
 discussed. It seems to be permitted when 
 the dedication is for a use consistent with 
 the object for which the charter is granted; 
 Maywood Co. v. Village of Maywood, 118 111. 
 61, 6 N. E. 860 ; Mayor, etc., of Jersey City 
 v. Banking Co., 12 N. J. Eq. 547; but not 
 otherwise: Stacy v. Hotel '& Springs Co., 
 223 111. rnr>. 79 X. E. 133, 8 L. R. A. (X. S.) 
 966, and note: and a railroad may, by dedi- 
 cation, establish a street or road across its 
 tracks; Northern Tac. R. Co. v. City of 
 Spokane, 64 Fed. 500, 12 C. C. A. 246; Green 
 v. Town of Canaan, 2D Conn. 157; Southern 
 Pac, Co. v. City of Pomona, 144 Cal. 339, 77 
 Pac. 929; Central R. Co. of New Jersey v. 
 City of Bayonne. 52 X. J. L. 503, 20 Atl. CO. 
 A trustee of a town site located on public 
 land (under U. S. R. S. § 2.°,S7) has no right 
 to dedicate land for a street as against the 
 individual occupants for whom he takes ti- 
 tle; McCloskey v. Pacific Coast Co., 100 Fed. 
 794, 87 C. C. A. 568, 22 L. R. A. (X. s. | 673. 
 
 Reservations, conditions and restrictions 
 are in some cases sustained, the courts some- 
 times going to great lengths; Hughes v. Bing- 
 ham, 135 N. T. 347, 32 N. E. 78, 17 L. R, A. 
 454; 11 M. & W. 827; Bayard v. Hargrove. 
 45 Ga. 342 ; City of Morrison y. Hinkson, 87 
 
 111. rs~. 20 An:. ft ' 77; Warren v. City of 
 Grand Haven. 30 Mich. 24; Rutherford v. 
 Taylor, :;s Mo. 315; but the g ten- 
 
 dency is to hold the condition void; Tr 
 of M. E. church of 1! 
 
 3 X. J. L. 13, :<7 Am. 
 ."> Q. I'.. 26. The limitati 
 
 to defeat the dedication by showing an ab- 
 sence of the animus dedicandi; Wh 
 Bradley, GO Me. 254; so the reservati 
 a right to revoke and devote the land to oth- 
 
 3 was held not a u r ood dedica; 
 of San Francisco v. Canavan, 42 Cal. 
 See 21 llarv. L. Rev. ;;;,i;, where 
 restrictions and conditions are discussed. 
 
 See Street; Highway; Pabk; Bbtdge, and 
 a general note in 27 Am. Dec. 559. 
 
 DEDIMUS ET C0NCESSIMUS (Lat we 
 have given and granted). Words used by 
 the king, or where there were more grantors 
 than t»ne, instead of dedi ct cona 
 
 DEDIMUS POTESTATEM (Lat. we have 
 given power). The name of a writ to com- 
 mission private persons to do some act in 
 the place of a judge: as, to administer an 
 oath of office to a justice of the peace, to ex- 
 amine witnesses, and the like. Co well; Com. 
 Dig, Chancery (K, 3), (I', 2), Fine (E, 7) ; 
 Dane, Abr. Index; 2 Bla. Com. 351. 
 
 DEDIMUS POTESTATEM DE ATT0RN0 
 FACIEND0 (Lat). The name of a writ 
 which was formerly issued by authority of 
 the crown in England to authorize an attor- 
 ney to appear for a defendant, without which 
 a party could not, until the statute of West- 
 minster 2. appear in court by attorney. By 
 that statute, 13 Edw. I. c. 10, all persons Im- 
 pleaded may make an attorney to sue for 
 them, in all pleas moved by or against them, 
 in the superior courts there enumerated. 3 
 M. & G. 1S4, n. 
 
 DEDITITII (Lat.). In Roman Law. Crim- 
 inals who had been marked in the face or on 
 the body with fire or an iron so that the 
 mark could not be erased, and were subse- 
 quently manumitted. Calvinus. I.e\. 
 
 DEDUCTION FOR NEW. The allowance 
 (usually one-third) on the cost of repairing 
 a damage to the ship by the extraordinary 
 operation of the perils of navigation, the 
 renovated part being presumed to be better 
 than before the damage. In Some part-, by 
 custom or by express provision in the policy, 
 the allowance is not made on a new 
 during the fust year, or on a new sheathing. 
 or on an anchor or chain-cables; l rhiii. ins. 
 § 50; 2 id. H 1369, 1431 : Gray v. Wain. 2 s. 
 & R, (Pa.) 229, 7 Am. Dec. 642; Fisk v. Ins. 
 Co., 18 La. 77; Orrok v. Ins. Co., 21 Tick. 
 (Mass. i 456, •"•'- Am. He. 271; Depau v. Ins. 
 Co.. 5 COW. (N. Y.i •;.'.. 15 Am. Dec. 431. 
 
 DEED. A written instrument under seal, 
 containing a contract or agreement which 
 has been delivered by the party to be bound 
 and accepted by the obligee or covenantee.
 
 DEED 
 
 812 
 
 DEED 
 
 Co. Litt. 171; 2 Bla. Com. 295; Shepp. 
 Touchst. 50. 
 
 A writing containing a contract sealed and 
 delivered to the party thereto. 3 Washb. R. 
 P. 239. 
 
 A writing under seal by which lands, tene- 
 ments, or hereditaments are conveyed for an 
 estate not less than a freehold. 2 Bla. Com. 
 294. 
 
 A writing or instrument, written on paper 
 or parchment, sealed and delivered, to prove 
 and testify the agreement of the parties 
 whose deed it is to the things contained in 
 the deed. American Button-Hole Overseam- 
 ing S. M. Co. v. Burlack, 35 W. Va. 647, 14 S. 
 E. 319. See Baker v. Westcott, 73 Tex. 129, 
 11 S. W. 157. 
 
 Any instrument in writing under seal, 'whether it 
 relates to the conveyance of real estate or to any 
 other matter,— as, for instance, a bond, single bill, 
 agreement, or contract of any kind, — is as much a 
 deed as is a conveyance of real estate, and, after 
 delivery and acceptance, is obligatory ; Taylor v. 
 Glaser, 2 S. & R. (Pa.) 504 ; Taylor v. Morton, 6 
 Dana (Ky.) 365 ; Davis v. Brandon, 1 How. (Miss.) 
 154. The term is, however, often used in the latter 
 sense above given, and perhaps oftener' than in its 
 more general signification. 
 
 Deeds of feoffment. See Feoffment. 
 
 Deeds of grant. See Grant. 
 
 Deeds indented are those to which there 
 are two or more parties who enter into re- 
 ciprocal and corresponding obligations to 
 each other. See Indenture. 
 
 Deeds of release or of quitclaim. See Re- 
 lease ; Quitclaim. 
 
 Deeds poll are those which are the act of 
 a single party and which do not require a 
 counterpart. See Deed Poll. 
 
 Deeds under the statute of uses. See Bar- 
 gain and Sale; Covenant to Stand Seised; 
 Lease and Release. 
 
 According to Blackstone, 2 Com. 313, deeds may be 
 considered as conveyances at common law, — of which 
 the original are feoffment ; gift ; grant ; lease ; 
 exchange; partition: the derivative are release; 
 confirmation ; surrender ; assignment ; defeasance, 
 — or conveyances which derive their force by virtue 
 of the statute of uses: namely, covenant to stand 
 seized to uses; bargain and sale of lands; lease 
 and release ; deed to lead and declare uses; deed of 
 revocation of uses. 
 
 For a description of the various forms in use In 
 United States, see 2 Washb. R. P. 607. 
 
 Requisites of. Deeds must be upon paper 
 or parchment ; Warren v. Lynch, 5 Johns. 
 (N. Y.) 246; must be completely written be- 
 fore delivery : Perminter v. McDaniel, 1 Hill 
 (S. Q) 267, 26 Am. Dec. 179; 6 M. & W. 216, 
 Am. ed. note; 3 Washb. R. P. 239; but see 
 Cribben v. Deal, 21 Or. 211, 27 Pac. 1046, 28 
 Am. St Rep. 746; Blank; and filing in 
 grantee's name after delivery in escrow is 
 sufficient; Burk v. Johnson, 146 Fed. 209, 76 
 C. C. A. 567 ; they may be partly written 
 and partly printed, or entirely printed; must 
 be between competent parties, see Parties ; 
 and certain classes are excluded from hold- 
 ing lands, and, consequenfly, from being 
 grantees in a deed; see 1 Washb. R. P. 73; 
 2 id. 564; must have been made without re- 
 
 straint; Inhabitants of Worcester v. Eaton, 
 
 13 Mass. 371, 7 Am. Dec. 155; 2 Bla. Com. 
 291 ; must contain the names of the grantor 
 and grantee; Hoffman v. Porter, 2 Brock. 
 156, Fed. Cas. No. 6,577 ; Morse v. Carpenter, 
 19 Vt. 613; Shaw v. Loud, 12 Mass. 447; 
 Boone v. Moore, 14 Mo. 420 ; Games v. Dunn, 
 
 14 Pet. (U. S.) 322, 10 L. Ed. 476; Dunn v. 
 Games, 1 McLean 321, Fed. Cas. No. 4,176; 
 Elliot v. Sleeper, 2 N. H. 525; but a vari- 
 ance in the names set forth in the deed will 
 not invalidate it; Jenkins v. Jenkins, 148 
 Pa. 216, 23 Atl. 985; must relate to suitable 
 property ; Browne, Stat. Frauds § 6 ; 3 
 Washb. R. P. 331 ; must contain the requisite 
 parts, see infra; must at common law be 
 sealed; Sicard v. Davis, 6 Pet. (U. S.) 124, 
 8 L. Ed. 342 ; Thornt. Conv. 205 ; see Stanley 
 v. Green, 12 Cal. 166 ; Munds v. Cassidey, 98 
 N. C. 558, 4 S. E. 353, 355 (i. e. in order to 
 constitute it a deed, though an unsealed in- 
 strument may operate as a conveyance of 
 land; Mitchell, R. P. 453; Barnes v. Mult- 
 nomah County, 145 Fed. 695) ; and should, 
 for safety, be signed, even where statutes do 
 not require it ; 3 Washb. R. P. 239 ; but see 
 Newton v. Emerson, 66 Tex. 142, 18 S. W. 
 348. Previous to the Statute of Frauds, 
 signing was not essential to a deed, provided 
 it was sealed. The statute makes it so ; 2 
 Bla. Com. 306; contra, Shep. Touch, u. (24), 
 Preston's ed., which latter is of opinion that 
 the statute was intended to affect parol con- 
 tracts only, and not deeds. See Wms. R. P. 
 .152; 2 Q. B. 580. Sir F. Pollock (Contracts 
 171) is of opinion that a deed does not re- 
 quire a signature, citing 4 Ex. 631 ; 3 Bla. 
 Com. 306. Where the grantor is present and 
 authorizes another, either expressly or im- 
 pliedly, to sign his name to a deed, it then 
 becomes his deed, and is as binding upon 
 him; Gardner v. Gardner, 5 Cush. (Mass.) 
 483, 52 Am. Dec. 740 ; Kime v. Brooks, 31 N. 
 C. 218; Frost v. Deering, 21 Me. 158. 
 
 They must be delivered (see Delivery; Es- 
 crow ; delivery is said not to be necessary 
 in the case of a body corporate, for the affix- 
 ing of the common seal to the deed is tanta- 
 mount to delivery; L. R. 2 H. L 296) ; and 
 accepted; Canning v. Pinkham, 1 N. H. 353 ; 
 Buffum v. Green, 5 N. H. 71, 20 Am. Dec. 
 562; Jackson v. Bodle, 20 Johns. (N. Y.) 
 187; 13 Cent. L. J. 222; Richardson v. Grays, 
 85 la. 149, 52 N. W. 10 ; Schwab v. Rigby, 38 
 Minn. 395, 38 N. W. 101. A deed may be de- 
 livered by doing something and saying noth- 
 ing, or by saying something and doing noth- 
 ing, or it may be by both; Flint v. Phipps, 
 16 Or. 437, 19 Pac. 543. Deeds conveying real 
 estate must by statute in some states be ac- 
 knoivledged and recorded ; Lewis v. Herrera, 
 208 U. S. 309, 28 Sup. Ct. 412, 52 L. Ed. 506. 
 See Acknowledgment ; Record. In Pennsyl- 
 vania this is unnecessary to its validity as 
 between the parties ; Cable v. Cable, 146 Pa. 
 451, 23 Atl. 223. 
 
 "A deed is irrevocable and binding on the
 
 DEED 
 
 813 
 
 DEED 
 
 promisor from the moment of its delivery by 
 him, even before any acceptance by the prom- 
 isee. The promisor does not, strictly speak- 
 ing, thereby create an obligation, but rather 
 declares himself actually bound. The very 
 object of the Anglo-Norman writing under 
 seal was to dispense with any other kind of 
 proof; Pollock, Contr. 7. 
 
 The requisite number of toitncsses is also 
 prescribed by statute in most of the states. 
 Formal parti. The premises enilirace tbe 
 statement of tbe parties, the consideration, 
 recitals inserted for explanation, description 
 of the property granted, with the intended 
 exceptions. The habendum begins at tbe 
 words "to have and to hold," and limits and 
 defines the estate which the grantee is to 
 have. The reddendum, which is used to re- 
 serve something to the grantor, see Excep- 
 tion; the conditions, see Condition; the 
 covenants, see Covenant; Warranty ; and 
 the conclusion, which mentions the execu- 
 tion, date, etc., properly follow in the order 
 observed here ; 3 WasBb. R. P. 365. 
 
 The construction of deeds is favorable to 
 their validity; the principal includes the in- 
 cident; punctuation is not regarded ; a false 
 description does not harm ; the construction 
 is least favorable to the party making the 
 conveyance or reservation; the habendum is 
 rejected if repugnant to the rest of the deed. 
 Shepp. Touchst. 89; 3 Kent 422. There is a 
 tendency in the modern decisions to uphold 
 conveyances where not clearly repugnant to 
 some well defined rule of law ; Love v. 
 Blauw, 61 Kan. 496, 59 Pac. 1059, 48 L. R. A. 
 257, 78 Am. St. Rep. 334; Abbott v. Hoi way, 
 72 Me, 298; Dismukes v. Tarrott, 56 Ga. 
 513; Uhl v. R. Co., ol W. Va. 106, 41 S. E. 
 340; Sherwood v. Whiting, 54 Conn. 330, 8 
 Atl. 80, 1 Am. St. Rep. 116 ; Love v. Blauw, 
 61 Kan. 496, 59 Pac. 1059, 48 L. R. A. 257, 78 
 Am. St. Rep. 334, where an instrument con- 
 veying lands to the grantor's children, but 
 the estate not to vest in them until the death 
 of the grantor, was held not to be testamen- 
 tary, but to be a deed presently passing an 
 estate in remainder to the grantees, reserv- 
 ing a life estate to the grantor. To the same 
 effect; Hunt v. Hunt, 119 Ky. 39, 82 S. \v. 
 998, 68 L. R. A. 180, 7 Ann. Cas. 788. 
 
 The true test in such cases is the intention 
 of the maker; Love v. Blauw. i;i Kan. 496, 
 59 Pac. 1059, 48 L. R. A. 257, 78 Am. St. 
 Rep. 334; Nolan v. Otney. 7.". Kan. 311, S9 
 Pac. 690, 9 L. R. A. (N. S.) 317; Hunt v. 
 Hunt, 119 Ky. 39, 82 S. W. 998, OS L. R. A. 
 180, 7 Ann. Cas. 788, where it is said to be 
 the sounder policy in case of doubt to declare 
 the instrument a deed, and thus make it ef- 
 fectual, when holding it to be testamentary 
 would, for want of the requisite number ol 
 witnesses, render it nugatory: West v. 
 Wright, 115 Ga. 277, 41 S. E. i;<>2. Such an 
 instrument was held a deed, though the de- 
 livery was made dependent upon the per- 
 formance of a condition as well as upon the 
 
 happening of a contingency; Hutton v. Cra- 
 mer, 10 Ariz, no, 85 Pac. 483, 103 1'ac. 4'.t7. 
 where the condition (that the grantee should 
 give the grantor a respectable buriali was 
 incapable of performance in the lifetime of 
 the grantor; so in McCurry v. McCurry 
 (Tex.) 95 S. W. 35; but a conveyance re- 
 citing that the grantee should come into pos- 
 session of the property after the death of the 
 grantor on condition that the grantee should 
 care for the grantor as long as lie should live, 
 was held to be testamentary; Culy v. Dpham, 
 135 Mich. 131, 97 N. W. 4o.~>. 106 Am. S 
 388; in Arnegaard v. Arnegaard, 7 N. I 
 75 N. W. 797, 41 L. B. A. 258, held, that 
 if the grantor reserves the right to recall the 
 deed, the transaction j s testamentary; and 
 so in Taft v. Taft, 59 Mich. 185, 26 N. W. 
 126, 60 Am. Rep. 291, it is held no valid de- 
 livery can be accomplished by the deposit of 
 a deed with a custodian who is directed to 
 hold it, not only until the grantor dies, but 
 until the grantee does something on bis part, 
 and then deliver it, unless the required act 
 is one intended to be performed or capable 
 of performance while the grantor is yet 
 alive. 
 
 An undelivered deed may not be proved to 
 be a will by extrinsic evidence that it was 
 executed with testamentary intent; Noble \. 
 Fickes, 230 111. 594, 82 N. E. 950, 13 L. K. A. 
 (X. S.) 1203, 12 Ann. Cas. 2S2. An instru- 
 ment using words of conveyance In p+fBSenti 
 will be considered as an agreement to convey, 
 and not a conveyance, if it is manifest that 
 further conveyance was contemplated; Wil- 
 liams v. Paine, 169 U. S. 55, 18 Sup. Ct. 279, 
 42 L. Ed. 658, cited in Mineral Development 
 Co. v. James, 97 Va. 414, 34 S. E. 37. The 
 question is one of intention; Phillips v. 
 Swank. 120 Pa. 76, 13 Ail. 712, •'. Am. St 
 Rep. 691; Jackson v. Moncrief, 5 Wend. (N. 
 Y.) 26. 
 
 All the terms of a deed should be con- 
 strued together; Lowdermilfe Bros. v. Bos 
 tick, 98 N. C. 299, 3 S. E. Ml; Iliad ley v. 
 Zehmer, 82 Va. 6S5 ; St Louis v. Kutz, 138 
 U. S. 226, 11 Sup. ct. 337, ."4 L. Ed. 911; and 
 the words therein should be taken most 
 strongly against the party using them: Doug- 
 lass v. Lewis. L31 T\ s. 75, !' Sup. Ct. 634, .::: 
 L. Ed. 53; Homer v. Sehonfeld. 84 Ala. 313, 
 4 South. 105; where tw.. clauses in a deed 
 are repugnant, the first prevails; Blair v. 
 Muse. 83 Va. 238, 2 S. E. 31 ; and if possible 
 a deed should be so construed as to give it 
 effect; Cleveland v. Sims, 69 Tex. 153, 6 S. 
 W. 634. 
 
 "Sells" in a deed does not pass title; Tay- 
 lor v. !:urns. 203 P. S. 120, L'7 Sup. Ct -I" 
 51 L. Ed. 11C 
 
 A deed speaks from the time of its de- 
 livery, not from its date; U. S. v. Le Baron, 
 19 How. (U. S.) 73, 15 L. Ed. ."'_>:,: District 
 of Columbia v. Camden Iron Works. 183 I . 
 S. 464, 21 Sup. Ct. 6S0, 45 L. Ed. 948; and 
 parol evidence may be admitted to show de-
 
 DEED 
 
 814 
 
 DEEM 
 
 livery at a date subsequent to that shown on 
 the face of the instrument ; id. 
 
 The lex rei siUv governs in the convey- 
 ance of lands, both as to the requisites and 
 forms of conveyance. See Lex Rei Sit\e. 
 
 Recitals in deeds of payment of the con- 
 siderations expressed therein are not proof 
 of such payments us against persons not par- 
 ties thereto; Simmons Creek Coal Co. v. 
 Doran, 142 U. S. 417, 12 Sup. Ct. 239, 35 L. 
 Ed. 1063 ; nor is a consideration always nec- 
 essary to the validity of a deed of land ; 
 Baker v. Westcott, 73 Tex. 129, 11 S. W. 157. 
 An alteration in the description of property 
 in a deed cannot be made without re-execu- 
 tion, reacknowledgment, and redelivery, after 
 the deed has been delivered and recorded; 
 Moelle v. Sherwood, 148 U. S. 21, 13 Sup. Ct. 
 426, 37 L. Ed. 350. 
 
 In the Reading Railroad Company Receiver- 
 ship (1S95) the court ordered the trustees to 
 execute six original deeds, for convenience in 
 recording, any one of which migbt be record- 
 ed, each to be an original, and all to consti- 
 tute one deed. 
 
 The grantee in a deed is bound by its 
 covenant, though he does not sign ; Taft v. 
 Taft, 59 Mich. 185, 26 N. W. 426, 60 Am. 
 Rep. 291; 21 Harv. L. Rev. 587. 
 
 See Delivery ; Escrow ; Lost Instrument ; 
 Attestation; Alienation; Ancient Writ- 
 ing. 
 
 DEED TO DECLARE USES. A deed 
 made after a fine or common recovery, to 
 show the object thereof. 
 
 DEED TO LEAD USES. A deed made 
 before a fine or common recovery, to show 
 the object thereof. 
 
 DEED POLL. A deed which is made by 
 one party only. 
 
 A deed in which only the party making it 
 executes it or binds himself by it as a deed. 
 3 Washb. R. P. 311. 
 
 The term is now applied in practice main- 
 ly to deeds by sheriffs, executors, administra- 
 tors, trustees, and the like. 
 
 The distinction between deed poll and indenture 
 has come to be of but little importance. The ordi- 
 nary purpose of a deed poll is merely to transfer 
 the rights of the grantor to the grantee. It was 
 formerly called charta de una parte, and usually be- 
 gan with these words, Sciant prcesentes et futuri 
 quod ego, A, etc. ; and now begins, "Know all men 
 by these presents (taken from the early language of 
 writs ; 3 Holdsw. Hist. B. L. 193) that I, A B, have 
 given, granted, and enfeoffed, and by these presents 
 do give, grant, and enfeoff," etc. Cruise, Dig. tit. 32, 
 c. 1, s. 23. See Indenture. 
 
 DEED OF SETTLEMENT. A deed for- 
 merly used in England for the formation of 
 joint stock companies constituting certain 
 persons trustees of the partnership property 
 and containing regulations for the manage- 
 ment of its private affairs. They are now 
 regulated by articles of association. 
 
 DEEM. To decide; to judge ; to sentence. 
 When by statute certain acts are deemed to 
 be crimes of a particular nature, they are 
 
 such crimes, and not a semblance of it, nor 
 a mere fanciful approximation to or designa- 
 tion of the offence. Com. v. Pratt, 132 Mass. 
 247. 
 
 When a thing is to be "deemed" something 
 else, it is to be treated as that something 
 else with the attendant consequences, but.it 
 is not that something else ; CO L J. Q. B. 
 3S0. When a statute enacts that something 
 sball be deemed to have been done, which in 
 fact and truth was not done, the court is 
 bound to ascertain for what purpose and be- 
 tween what persons the statutory fiction is 
 to be resorted to ; 50 L. J. Ch. 662. 
 
 DEEMSTERS. Judges in the Isle of Man, 
 who decide all controversies without process, 
 writings, or any cbarges. Tbey were cbosen 
 by the people, and are said by Spelman to 
 be two in number. Spelman, Gloss. ; Cam- 
 den, Brit.; Cowell. 
 
 DEFACE. To mar or disfigure. It has 
 been held that to write on a license anything, 
 whether true or false, other than the par- 
 ticulars required, defaces it ; 15 L. J. C. P. 
 18; [1895] 1 Q. B. 639. 
 
 DEFALCATION. Tbe act of a defaulter. 
 
 The reduction of the claim of one of the 
 contracting parties against tbe other, by de- 
 ducting from it a smaller claim due from 
 the former to the latter. 
 
 The law operates this reduction In certain cases ; 
 for, if the parties die or are insolvent, the balance 
 between them is the only claim ; but if they are sol- 
 vent and alive, the defendant may or may not de- 
 falcate at his choice. See Set-Off. For the etymol- 
 ogy of this world, see Brackenbridge, Law Misc. 186. 
 Defalcation was unknown at common law ; Com. v. 
 Clarkson, 1 Rawle (Pa.) 291. 
 
 DEFAMATION. The speaking or writing 
 words of a person so as to hurt his good 
 fame, de bona fama aliquid detrahere. Writ- 
 ten defamation is termed libel, and oral 
 defamation slander, which titles see. It is a 
 term more used in England than in this coun- 
 try. 
 
 See Libel; Slander. 
 
 DEFAULT. The non-performance of a 
 duty, whether arising under a contract or 
 otherwise. In its largest and most general 
 sense, it seems to mean failing. 1 B. & P. 
 258. 
 
 The non-appearance of a plaintiff or de- 
 fendant at court within the time prescribed 
 by law to prosecute his claim or make his 
 defence. 
 
 When the plaintiff makes default, he may be non- 
 suited ; and when the defendant makes default, 
 judgment by default may be rendered against him. 
 Comyns, Dig. Pleader, E 42, B. 11. See Judgment 
 by Default ; 7 Viner, Abr. 429 ; Doctr. Plac. 208 ; 
 Grah. Pr. 631. 
 
 DEFEASANCE. An instrument which de- 
 feats the force or operation of some other 
 deed or of an estate. That which is in the 
 same deed is called a condition; and that 
 which is in another deed is a defeasance. 
 Comyns, Dig. Defeasance. 
 
 The defeasance may be subsequent to the
 
 DEFEASANCE 
 
 815 
 
 DEFECT 
 
 deed in ease of things executory; Co. Litt. 
 237 a; 2 Saund. 43; but must be a part of 
 the same transaction in ease of an executed 
 contract; Co. Litt 236 6; Lund v. Lund, 1 
 N. H. 30, 8 Am. Dee. 29; Swetland v. Shet- 
 land, 3 Mich. 482; Kelly v. Thompson, 7 
 Watts (Pa.) 401. Yet, where an Instrument 
 of defeasance is executed subsequently in 
 pursuance of an agreement made at the time 
 of making the original deed, it is sufficient; 
 2 Washb. I.'. P. -is'.); as well as where a deed 
 and the defeasance bear different dates hut 
 
 are delivered at the same time; Devi. I 1^ 
 
 1102; Bodwell v. Webster, l" rick. (Mass. i 
 411; Reitenbaugh v. Ludwick, Ml Pa. 131; 
 Hale v. Jewell, 7 Greenl. (Me.) 435, 22 Am. 
 Dec. 2r_' : Freeman v. Baldwin, 13 Ala. 246. 
 The instrument of defeasance must at low 
 be of as high a nature as the principal deed ; 
 Baton v. Green, 22 Pick. (Mass.) 526; Jaques 
 v. Weeks, 7 Watts (Pa.) 261; Kelly v. 
 Thompson, 7 Watts (Pa.) 401; Richardson 
 v. Woodbury, 4.". Me. 206. It must recite the 
 deed it relates to, or at least the most ma- 
 terial part thereof; and it is to be made be- 
 tween the same persons that were parties 
 to the first deed; Shaw v. Erskine, 43 Me. 
 371. Defeasances of deeds conveying real 
 estate are generally suhject to the same 
 rules as deeds, as to record and notice to 
 purchasers; Brown v. Dean, 3 Wend. (N. Y. ) 
 208; Friedley v. Hamilton, 17 S. & R. (Pa.) 
 70, 17 Am. Dec. 638 : Purrington v. Pierce, 
 38 Me. 447; but in some states actual notice 
 is not sufficient without recording; Mich. 
 Rev. Stat. 2G1 ; Minn. Stat, at L. 1873, 34, § 
 23. 
 
 In equity, a defeasance could be proved by 
 parol and a deed, absolute on its face, shown 
 to be in legal effect a mortgage; Pearson v. 
 Sharp, 115 Pa. 2.~4. Atl. 38; but such evi- 
 dence must be clear, explicit, and unequivo- 
 cal, and the parol defeasance must be shown 
 to have been contemporaneous with the deed; 
 id. In Pennsylvania, all defeasances are 
 now required to be in writing, executed as 
 deeds and recorded within sixty days after 
 the deed. Act of June 8, 1881. 
 
 DEFECT. A lack or absence of something 
 essential to completeness. 66 L. J. Q. B. 
 The wnnt of something required by law. 
 
 In pleading, matter sufficient in law must 
 be deduced and expressed according to the 
 forms of law. Defects in matters of sub- 
 stance cannot be cured, because it does ii"t 
 appear that the plaintiff is entitled to re- 
 cover; but when the defects are in matter 
 of form, they are cured by a verdict in fa- 
 vor of the party who committed them: Rob- 
 inson V. Clifford, 2 Wash. i'. C 1, Fed. ('as. 
 No. 11.94S; Hunnicutt v. Carsley, 1 Hen. & 
 M. (Va.) 153; Read v. Inhabitants of Chelms- 
 ford, 10 rick. (Mass.) 128; Worster v. Pro- 
 prietors of Canal Bridge, id. 541 ; Russell v. 
 Slade, 12 Conn. 455 : Minor v. Bank, 1 Pet 
 (U. S.) 70, 7 L. Ed. 47; Stanley v. Whipple. 
 
 2 McL. 35, Fed. Cas. No. 13,286; Bacon, Abr. 
 Verdict, X. S.-e Neil v. Board of Trustees, 
 .".1 Ohio st. 15; Richtmyi titmyer, 50 
 
 Barb. (N. Y.) 5! pound 
 
 Co. v. Ins. Co., 40 V 
 
 DEFECTUM, CHALLENGE PROPTER. 
 
 See Challenge. 
 
 DEFECTUM SANGUINIS. See 
 
 DEFENCE. Torts. A forcible resistance 
 of an attack by force. 
 
 A man is Justified in defending his person, 
 that of his wife, children, and servants, and 
 for this purpose he may use as much 
 as may be necessary, even to killing the as- 
 sailant, remembering that the means used 
 must always be proportioned to the occ 
 and that an excess becomes itself an injury; 
 .". M. A: W. 150; Jamison v. Moseley, 6S 
 •its, io South. 582; People v. Bruggy, 93 
 476, 29 Pac 26 ; Lovett v. state. 30 Fla. 142, 
 11 South. 550, 17 L. EL A. 705; Kelly v. State, 
 27 Tex. App. 562, 11 S. W. 627; Duncan v. 
 State, 4'.) Ark. 543, 6 S. W. 164; Kstep v. 
 Com., 80 Ky. 39. 4 S. W. 820, Am. St Rep. 
 260; but it must be in defence, and not in 
 revenge; 1 C. & M. 214; Poll. Torts 255; 
 State v. McGraw, 35 S. C. 283, 14 S. E. 630; 
 for one is not justified in shooting another, 
 if such other party is retreating or has 
 thrown away his weapon; Meurer v. state, 
 129 Ind. 5S7, 29 X. B. 392; nor is a mere 
 threat to take one's life, with nothing more, 
 a sufficient defence or excuse for committing 
 homicide; State v. Howard, 35 S. C. 197, 11 
 S. E. 481. 
 
 A man may also repel force by force in 
 defence of his personal property, against one 
 who manifestly intends or endeavors, by 
 violence or surprise, to commit a known fel- 
 ony, as robbery, by any force slmrt of tak- 
 ing the aggressor's life: l Fish. New Cr. L. 
 g 875 : or short of wounding or the employ- 
 ment of a dangerous weapon; Com. v. Dona- 
 hue. 148 Mass. 529, 20 N. F. 171. 2 L R. A. 
 623, 12 Am. St. Rep. 591. In the latter case 
 Holmes, J., said: "We need not consider 
 whether this explanation is quite adequate. 
 There are weighty decisions whi< b go fur- 
 ther than those above cited, and which can 
 hardly stand on the right of self-defence, 
 but involve other considerations of policy." 
 See Powers v. People, 12 ill. App. 127. 
 
 With respect to the defence or protection 
 of the possession of real property, although 
 it is justifiable even to kill a person in the 
 act of attempting to commit a forcible fel- 
 ony, as burglary or arson, yet this Justifica- 
 tion can only take place when the party In 
 jion is wholly without fault : 1 Hale, 
 PL Cr. 440, lit: 1 Bast, PL Cr. 259, 277. 
 And where an Illegal forcible attack is made 
 upon a dwelling-house with the intention 
 merely of committing a trespass, and not 
 with any felonious intent, it is generally law- 
 ful for the rightful occupant to oppose it by
 
 DEFENCE 
 
 816 
 
 DEFENDANT IN ERROR 
 
 force; 7 Bing. 305; 20 Eng. C. L. 139. See, 
 generally, 1 Chit. Pr. 589; Grotius, lib. 2, c. 
 1; Rutherford, Inst. b. 1, c. 16; 2 Whart. 
 Cr. L. § 1019; Bishop; Clark; Wharton, 
 Criminal Law; Thompson, Cases of Self- 
 Defence; Assault; Self-Defence; Justifi- 
 cation. 
 
 In Pleading and Practice. The denial of 
 the truth or validity of the complaint. A 
 general assertion that the plaintiff has no 
 ground of action, which is afterwards ex- 
 tended and maintained in the plea. 3 Bla. 
 Com. 296; Co. Litt. 127; Wilson v. Poole, 
 33 Ind. 448. 
 
 In this sense it is similar to the contestatio litis 
 of the civilians, and does not include justification. 
 In a more general sense it denotes the means by 
 which the defendant prevents the success of the 
 plaintiff's action, or, in criminal practice, the in- 
 dictment. The word is commonly used in this sense 
 in modern practice. 
 
 Half defence was that which was made by 
 the form "defends the force and injury', and 
 says" (defendit vim et injuriam, et dicit). 
 
 Full defence was that which was made by 
 the form "defends the force and injury when 
 and where it shall behoove him, and the 
 damages, and whatever else he ought to de- 
 fend" (defendit vim et injuriam quando et 
 ubi curia consideralit, et damna et quicquid 
 quod ipse defendere debet, et dicit), com- 
 monly shortened into "defends the force and 
 injury when," etc. 3 B. & P. 9, n. ; Co. Litt. 
 127 b ; Willes 41. It follows immediately up- 
 on the statement of appearance, "comes" 
 (venit), thus: "comes and defends." By a 
 general defence the propriety of the writ, the 
 competency of the plaintiff, and the jurisdic- 
 tion of the court were allowed ; by defending 
 the force and injury, misnomer was waived ; 
 by defending the damages, all exceptions to 
 the person of the plaintiff ; and by defending 
 either when, etc., the jurisdiction of the 
 court was admitted. 3 Bla. Com. 298. 
 
 The distinction between the forms of half 
 and full defence was first lost sight of; 8 
 Term 633 ; Willes 41 ; 3 B. & P. 9 ; 2 Saund. 
 209 c ; and no necessity for a technical de- 
 fence exists, under the modern forms of prac- 
 tice. 
 
 DEFENDANT. A party sued in a per- 
 sonal action. The term does not in strict- 
 ness apply to the person opposing or denying 
 the allegations of the demandant in a real 
 action, who is properly called the tenant 
 The distinction, however, is very commonly 
 disregarded; and the term is further fre- 
 quently applied to denote the person called 
 upon to answer, either at law or in equity, 
 and as well in criminal as civil suits. 
 
 See Clagget v. Blanchard, 8 Dana (Ky.) 
 41 ; Schuyler County v. Mercer County, 4 
 Gilman (111.) 20; Almy v. Piatt, 16 Wis. 169; 
 Leavitt v. Lyons, 118 Mass. 470; Com. v. 
 Certain Intoxicating Liquors, 122 Mass. 8; 
 56 L. J. Ch- D. 400; Waddell v. Lanier, 54 
 Ala. 440. 
 
 DEFENDANT IN ERROR. The distinc- 
 tive term appropriate to the party against 
 whom a writ of error is sued out. 
 
 DEFENDARE. To answer for; to be re- 
 sponsible for. Medley. 
 
 DEFENDEMUS ( Lat. we will defend) . A 
 word anciently used in feoffments or gifts, 
 whereby the donor and his heirs were bound 
 to defend the donee against any servitude 
 or incumbrance on the thing granted, other 
 than contained in the donation. Cowell. 
 
 DEFENDER. In Scotch and Canon Law. 
 
 A defendant. 
 
 DEFENDER (Fr.). To deny; to defend; 
 to conduct a suit for a defendant ; to forbid ; 
 to prevent; to protect. 
 
 DEFENDER OF THE FAITH. A title 
 
 originally given to the kings of England by 
 the Pope. It was first given by Leo X. to 
 Henry VIII. It is still part of the title. 
 
 DEFENERATION. The act of lending 
 money on usury. Wharton. 
 
 DEFENSA. A park or place fenced in 
 for deer, and defended as a property and pe- 
 culiar for that use and service. Cowell. 
 
 DEFENSE AU FOND EN DROIT (called, 
 also, defense en droit). A demurrer. 2 
 Low. C. 278. See, also, 1 Low. C. 216. 
 
 DEFENSE AU FOND EN FAIT. The gen- 
 eral issue. 3 Low. C. 421. 
 
 DEFENSIVE ALLEGATION. In Ecclesi- 
 astical Practice. The answer of the party 
 defending to the allegations of the party 
 moving the cause. 3 Bla. Com. 100. 
 
 DEFENSIVE WAR. A war in defence of 
 national right, — not necessarily defensive in 
 its operations. 1 Kent 50. 
 
 DEFENSOR. In Civil Law. A defender; 
 one who takes upon himself the defence of 
 another's cause, assuming his liabilities. 
 
 An advocate in court. In this sense the 
 word is very general in its signification, in- 
 cluding advocatus, patronus, procurator, etc. 
 A tutor or guardian. Calvinus, Lex. 
 
 In Old English Law. A guardian or pro- 
 tector. Spelman, Gloss. The defendant; a 
 warrantor. Bracton. 
 
 In Canon Law. The advocate of a church. 
 The patron. See Advocatus. An officer hav- 
 ing charge of the temporal affairs of the 
 church. Spelman, Gloss. 
 
 DEFENSOR CIVITATIS (Lat. defender of 
 the state). In Roman Law. An officer 
 whose business it was to transact certain 
 business of the state. 
 
 Those officers were so called who, like the tribunes 
 of the people at first, were chosen by the people in 
 the large cities and towns, and whose duty it was to 
 watch over the order of the city, protect the people 
 and the decuriones from all harm, protect sailors 
 and naval people, attend to the complaints of those 
 who had suffered injuries, and ■ discharge various
 
 DEFENSOR CIVITATIS 
 
 817 
 
 DEFINITION 
 
 other duties. As will be seen, they had considerable 
 Judicial power. Du Cange ; Schmidt, Civ. Law, In- 
 trod. 16. 
 
 DEFENSUM. A prohibition; an enclo- 
 sure. Medley, Eng. Const. Hist 
 
 DEFERRED STOCK. See Stock. 
 
 DEFICIT (Lat. is wanting). The defi- 
 ciency which is discovered in the accounts 
 of an accountant, or in the money which he 
 has received. 
 
 DEFICIT, DEFICIENCY. That part of a 
 debt which a mortgage was given to secure 
 and not realized from the sale of the mort- 
 gaged property. Goldsmith v. Brown, 35 
 Barb. (N. Y. i 492. See Johnson v. McKin- 
 non, 54 Fla. 221, 45 South. 2::, 13 L. R. A. 
 (N. S.) 874, 127 Am. St. Rep. 135, 14 Ann. 
 Cas. 180. 
 
 DEFINE. In legislation, to determine or 
 fix. People v. Bradley, 3G Mich. 452 (as ap- 
 plied to boundaries). To enumerate. U. S. 
 v. Smith, 5 Wheat (U. S.) 160, 5 L. Ed. 57. 
 To declare that a certain act shall constitute 
 an offence is defining that offence ; D. S. v. 
 Arjona, 120 U. S. 488, 7 Sup. Ct. 628, 30 L. 
 Ed. 728. 
 
 DEFINITE. Bounded; determinate; fixed. 
 
 A definite failure of issue occurs when a 
 precise time is fixed by a will for a failure 
 of issue. An indefinite failure of issue is 
 the period when the issue of the first taker 
 shall become extinct and when there shall 
 no longer be any issue of the grantee, but 
 without reference to a particular time or 
 event; Huxford v. Milligan, 50 Ind. 546. 
 
 DEFINITION. An enumeration of the 
 principal ideas of which a compound idea is 
 formed, to ascertain and explain its nature; 
 that which denotes and points out the sub- 
 stance of a thing. Ayliffe, Pand. 59. 
 
 Definitions are always dangerous, because 
 It is always difficult to prevent their being 
 inaccurate, or their becoming so: omnis defi- 
 nitio in jure civili periculosa est, jxirum est 
 cnim tit non subverti possit. 
 
 All ideas are not susceptible of definition. 
 and many legal terms cannot be defined. 
 This inability is frequently supplied, in a 
 considerable degree, by descriptions. 
 
 It has been said that a definition is the 
 most difficult of all things. There is far 
 greater probability of a correct use of terms 
 than of a correct definition of them ; a cor- 
 rect use renders definition unnecessary. 20 
 Sol. Journ. SCO, quoted in Thayer. Evid. 190, 
 with a comment that legal scholarship will 
 be best used to clarify and restate the law. 
 
 The meaning of ordinary words, when 
 used in acts of parliament, is to be found, 
 not so much in a strict etymological proprie- 
 ty of language, nor even in popular use, as 
 in the subject or occasion on which they are 
 used, and the object which is intended to be 
 attained; L. R. 1 Ex. D. 143; for words used 
 with reference to one set of circumstances 
 Bouv.— 52 
 
 may convey an intention quite different from 
 what the selfsame set of words used in ref- 
 erence to another set of circumstances would 
 or might have produced; L. K. :; App. Cas. 
 68. 
 
 "A general dictionary of the English lan- 
 guage is not authority t trial, 
 the meaning of a word which Is :■ 
 deriving a peculiar mi 
 
 usage;" 7 C. & P. 701; approved in L. R. 5 
 Kxeh. 179, 184. 
 
 The definitions of the standard 1« 
 raphers are authority as Indicating 
 popular use of words; Burnam v. Ban 
 Mo. 351. Regard must always be had to the 
 circumstances under which a word is 
 in a statute; Pennsylvania R. Co. v. I 
 96 Pa. -I'm. Where Inconsistent with code 
 statutes, a definition is modified; Ellis v. 
 Prevost, 13 La. 230. Legal definitions for 
 the most part are generalizations derived 
 from judicial experience. To be complete 
 and adequate they must sum up the n 
 of all that experience; Mlckle v. Miles, 31 
 Pa. 21. 
 
 DEFINITIVE. That which terminal 
 suit; final. A definitive sentence or Judg- 
 ment is put in opposition to an interlocutory 
 judgment 
 
 A distinction has been drawn in the Unit 
 ed States supreme court between a final and 
 a definitive judgment in regard to the con- 
 demnation of a prize in a court of admiral- 
 ty; r. S. v. The Peggy, i Cra. (U. S.) 103, 
 2 L. Ed. 49; but for all practical purposes a 
 definitive judgment or decree is final; Ap- 
 peal of Gesell, 84 Pa. 238. See Di 
 Judgment. 
 
 DEFLORATION. The act by which a wo- 
 man is deprived of her virginity. 
 
 When this is done unlawfully and against 
 her will, it bears the name of rape (which 
 seei : when she consents, it is fornication 
 (which see) ; or if the man he married it Is 
 adultery on his part; 2 Greenl. Ev. S l v : 
 Com. v. Call, 21 Pick. (Mass.) 509, 32 Am. 
 Dec. 284; state v. Hutchinson, •".'; Me. 261 ; 
 cook v. state, 11 Ga. 5^. 56 Am. Dee. 410; 
 Respublica v. Roberts, 2 DalL (U. B.) 124, 
 1 L. Ed. 316. 
 
 DEFORCEMENT. The holding any lands 
 or tenements to which another has a right. 
 In its most extensive sense the term includes any 
 withholding of any lands or tenements to which 
 another person has a right ; Co. LUt. 277 ; Phelps 
 v. Baldwin, 17 Conn. 212 ; so that this includes as 
 well an abatement, an intrusion, a disseisin, or a 
 discontinuance, as any other species of wrong what- 
 soever, by which the owner of the freehold is kept 
 out of possession. But, as contradistinguished from 
 the former, it is only such a detainer of the freehold 
 from him who has the right of property as falls 
 within none of the injuries above mentioned ; 3 Bla. 
 Com. 173; Archb. Civ. PI. 13; Dane, Abr. Index. 
 
 DEFORCIANT. One who wrongfully 
 keeps the owner of lands and tenements out 
 of the possession of them. 2 Bla. Com. 350.
 
 J>EFORCIARE 
 
 818 
 
 DECREE 
 
 DEFORCIARE. To withhold lands or ten- 
 ements from the rightful owner. This is a 
 word of art which cannot be supplied by 
 any other word. Co. Litt. 331 6 ; 3 Thomas, 
 Co. Litt 3; Bract, lib. 4, 238; Fleta, lib. 5, 
 c 11. 
 
 DEFOSSION. The punishment of being 
 buried alive. Black, L. Diet. 
 
 DEFRAUD. To defraud is to withhold 
 from another that which is justly due to 
 him, or to deprive him of a right by decep- 
 tion or artifice. Burdick v. Post, 12 Barb. 
 (N. Y.) 186. It is not synonymous with 
 "hinder and delay"; Crow v. Beardsley, 68 
 Mo. 435. See Fbaud. 
 
 DEFRAUDACION. In Spanish Law. The 
 crime committed by a person who fraudu- 
 lently avoids the payment of some public 
 tax. 
 
 DEGRADATION. The act of depriving a 
 priest of his orders or benefices or of both, 
 either by word of mouth or by public re- 
 proach, and a solemn ceremony of stripping 
 from the offender the vestments of his office. 
 
 The mode of proceeding in the trial of 
 clergymen is determined by canons in the 
 various dioceses. 
 
 The same term is applied to the loss, by a 
 peer, of his rank as such, as when he is 
 deprived thereof by act of parliament. 2 
 Steph. Com. 608. Degradation must be dis- 
 tinguished from disqualification for bank- 
 ruptcy, under stat. 34 & 35 Vict. c. 50. 
 
 DEGRADING. Sinking or lowering a per- 
 son in the estimation of the public. 
 
 As to compelling a witness to answer ques- 
 tions tending to degrade him, see Witness ; 
 13 Howell, St. Tr. 17, 334; 16 id. 161; 1 
 Phill. Ev. 269. To write or print of a man 
 what will degrade him in society is a libel ; 
 1 Dowl. 674; 2 M. & R. 77. See Incrimina- 
 tion. 
 
 DEGREE (Fr. degre", from Lat. gradus, a 
 step in a stairway ; a round of a ladder) . 
 
 A remove or step in the line of descent or 
 consanguinity. 
 
 As used in law, it designates the distance between 
 those who are allied by blood: it means the rela- 
 tions descending from a common ancestor, from gen- 
 eration to generation, as by so many steps. Hence, 
 according to some lexicographers, we obtain the 
 word pedigree (q. v.) par degrez (by degrees), the 
 descent being reckoned par degrez. Minshew. Bach 
 generation lengthens the line of descent one de- 
 gree ; for the degrees are only the. generations 
 marked in a line by small circles or squares, in 
 which the names of the persons forming it are writ- 
 ten. See Consanguinity ; Line ; Ayliffe, Parerg. 
 209 ; Toullier, Droit Civ. Franc, liv. 3, t. 1, c. 3, n. 
 158 ; Aso & M. Inst. b. 2, t. 4, c. 3, § 1. 
 
 In criminal law, the word is used to dis- 
 tinguish different grades of guilt and pun- 
 ishment attached to the same act, commit- 
 ted under different circumstances, as mur- 
 der in the first and second degrees. 
 
 The state or civil condition of a person. 
 State v. Bishop, 15 Me. 122. 
 
 The ancient English statute of additions, for ex- 
 ample, requires that in process, for the better de- 
 scription of a defendant, his state, degree, or mys- 
 tery shall be mentioned. 
 
 An honorable state or condition to which 
 a student is advanced in testimony of pro- 
 ficiency in arts and sciences. See College; 
 Diploma. 
 
 They are of pontifical origin. See 1 Schmidt, 
 Thesaurus, 144; Vicat, Doctores; Minshew, Diet. 
 Bacheler; Merlin, Repertoire Univ.; Van Espen. 
 pt. 1, tit. 10 ; Giannone, Istoria di Napoli, lib. xi. c. 
 2, for a full account of this matter. 
 
 For the degrees of negligence, see Negli- 
 gence; Bailee; Bailment. 
 
 DEHORS (Fr. out of; without). Some- 
 thing out of the record, agreement, will, or 
 other thing spoken of; something foreign 
 to the matter in question. See Aliunde. 
 
 DEI GRATIA. By the grace of God. An 
 expression used in the titles of sovereigns 
 denoting a claim of authority derived from 
 divine right. It was anciently a part of the 
 titles of inferior magistrates and other of- 
 ficers, civil and ecclesiastical, but was after- 
 wards considered a prerogative of royalty. 
 Abbott; A. M. Eaton, in Report of Am. Bar 
 Assoc. (1902) 313. 
 
 DEI JUDICIUM. See Judicium Dei. 
 
 DEJACI0N. In Spanish Law. A general 
 term applicable to the surrender of his prop- 
 erty to his creditors by an insolvent. The 
 renunciation of an inheritance. The release 
 of a mortgage upon payment, and the aban- 
 donment of the property insured to the in- 
 surer. 
 
 DEL CREDERE COMMISSION. One un- 
 der which the agent, in consideration of an 
 additional payment, engages to become sure- 
 ty to his principal for not only the solvency 
 of the debtor, but the punctual discharge of 
 the debt. 21 W. R. 465; L. R. 6 Ch. App. 
 397. He is liable, tn the first instance, with- 
 out any demand from the debtor. The prin- 
 cipal cannot sue the del credere factor until 
 the debtor has refused or neglected to pay ; 
 1 Term 112; Paley, Ag. 39. See Pars. 
 Contr. ; Story ; Wharton ; Mechem, Agency. 
 
 He is virtually a surety; 8 Ex. 40; and 
 the purchaser is the primary debtor ; Gindre 
 v. Kean, 7 Misc. 582, 28 N. Y. Supp. 4. He is 
 distinguished from other agents by the fact 
 that he guarantees that those persons to 
 whom he sells shall perform the contracts 
 which he makes with them ; L. R. 6 Ch. 403. 
 
 DELATE. In Scotch Law. To accuse. 
 Bell, Diet. 
 
 DELATI0. In Civil Law. An accusa- 
 tion or information. Du Cange. 
 
 DELATOR. An accuser or informer. Du 
 Gauge.
 
 DELATURA 
 
 819 
 
 DELECTUS PERSON JE 
 
 DELATURA. In Old English Law. An ac- 
 cusation. Cunningham. The reward of an 
 informer. Whishaw. 
 
 DELAWARE. The name of one of the 
 original states of the United States of Amer- 
 ica, being the first to adopt the constitution. 
 
 In 1623, Corn hus May, with some Dutch emi- 
 grants, established a trading-house, but the settlers 
 soon removed to North river. Ten years afterwards 
 De Vries arrived at Cape Henlopen, but the Datives 
 shortly destroyed the settlement. In the spring of 
 1638 the Swedes under Minuit established a settle- 
 ment at the mouth of the Minquas river, which was 
 called by them the Christiana, in honor of their 
 queen. They purchased all the lands from Cape 
 Henlopen to the falls near Trenton, and named the 
 country New Sweden. Stuyvesant, the Dutch gov- 
 ernor of New York, ended the Swedish authority In 
 1654. The Dutch held the country until 1664, 
 fell Into the hands of the English, and was granted 
 by Charles II. to his brother James, Duke of York. 
 In n;s_', William Penn obtained a patent from the 
 Duke of York, releasing all his title claimed through 
 his patent from the crown to a portion of the terri- 
 tory. By this grant Penn became possessed of New 
 Castle and the land lying within a circle of twelve- 
 miles around it, and subsequently of a tract of land 
 beginning twelve miles south of New Castle and 
 extending to Cape Henlopen. In consequence of a 
 dispute between Penn and Lord Baltimore, the south 
 and west lines, dividing his possessions from Mary- 
 land, were traced in 1761, under a decree of Lord- 
 Chancellor Hardwicke, by the surveyors Mason and 
 Dixon ; and this line, extended westward between 
 Maryland and Pennsylvania, has become historical 
 as Mason and Dixoti's Line (q. v.). 
 
 Delaware was divided into three counties, called 
 New Castle, Kent, and Sussex, and by enactment of 
 Penn was annexed to Pennsylvania under the name 
 of the Three Lower Counties upon Delaware. These 
 counties remained for twenty years a part of Penn- 
 sylvania, each county sending six delegates to the 
 general assembly. They separated in 1703, with the 
 consent of the proprietary, and were governed by a 
 separate legislature of their own, pursuant to the 
 liberty reserved to them by a clause of their orig- 
 inal charter. 
 
 Delaware was the first state to ratify the federal 
 constitution, on December 7, 1787. 
 
 In 1776 a state constitution was framed, a second 
 in 179., and a third in 1831, which remained in force 
 until 1897. The agitation for constitutional changes 
 was begun before 1850, and in 1853 a convention was 
 held and a constitution adopted which was, on sub- 
 mission to a popular vote, defeated. After the civil 
 war the efforts to obtain a convention were resumed, 
 but were unsuccessful until 1S96. 
 
 The present constitution was adopted June 4, 1897, 
 by a constitutional convention which was duly 
 called to meet in December, 1896, delegates having 
 been elected at the general election of that year, 
 The constitution contains the usual declaration of 
 rights, no change being made in that article. Minor 
 amendments were adopted in 1 f> 1 r*. . relating to the 
 legislative Journals and the Judiciary. 
 
 DELAY. To procrastinate; detain or 
 stop; to prolong. 
 
 See Hinder and Delay. 
 
 As to delay in presenting checks, 
 Check. 
 
 As to delay in the execution of contract 
 work, see Negligence; Breach of Contract; 
 Perform a nce ; Time. 
 
 DELECTUS PERSON/E (Eat. the choice 
 of the person i. The right of a partner to 
 decide what new partners, if any. shall be 
 admitted to the firm. Story, Partn. §§ 5, 195. 
 
 This doctrine excludes even executors and 
 
 of partners from 
 to the state and cond d a of ; kins- 
 
 man v. Spurr, 7 r 
 LindL Partn, • 
 
 DELECATE. One aut other 
 
 to act in his name ; an . 
 
 A ! .-.n or- 
 
 ganiz .1 territory of the 
 congress, who has 
 right of debating, hut d 
 July 13, 17^7; 2 Story, i . S. :<;. 
 
 a person chosen to any deliberatl 
 sembly. it is, bow< eer, in this 
 orally limited to occasional a 
 as conventions and the like, and 
 usually apply to permanent bodies, as I 
 of assembly, etc. In Maryland I 
 numerous branch of the Legislature i- 
 ed the House of Delegates. 
 
 As to its meaning when used as a verb, 
 see Delegation. 
 
 DELEGATION. In Civil Law. A kind of 
 novation by which the original debtor, in 
 order to he liberated from his creunor. Laws 
 him a third person, who becomes obliged in 
 his stead to the creditor or to the i 
 appointed by him. See Novation. 
 
 Perfect <b l<<j<iti>>n exists when the debtor 
 who makes the obligation is discharged by 
 the creditor. 
 
 Imperfect delegation exists when the 
 itor retains his rights against the original 
 debtor. 2 Duvergnoy, n. 189. 
 
 It results from the definition that a dele- 
 gation is made by the concurrence of at 
 least three parties, viz.: the part. 
 ing — that is, the former dehtor who procures 
 another debtor in his stead; the party 
 gated, who enters into the obligation in the 
 place of the former dehtor, either to the 
 creditor or to some other person appointed 
 by him; and the creditor, who, in ei 
 quence of the obligation contracted by the 
 party delegated, discbarges the party dele- 
 gating'. Sometimes there Intel 
 party; namely, the person Indicated by the 
 Creditor in whose favor the person 
 becomes obliged, npon the Indication of the 
 creditor and by the order of the person del- 
 egating. Pothler, Obi. pt •"•. e. 2, a; 
 Adams v. Tower, -is Mi^. l.",i. See I. a. t'iv. 
 fode 2188, 2189; Kellogg v. Richard 
 Wend. (N. Y.) 116; Buster v. Newldrk, 20 
 Johns. (X. Y.) 711; W'eiitworth v. Went worth. 
 
 5 N. II. no; Sterling v. Tra 11 S. 
 
 6 R. (Pa.) 17'.». 
 
 The party delegated is commonly a 
 or of the person delegating, ami. in order 
 to he liberated from the obligation to him. 
 contracts a new one with his creditor. In 
 this case there is a novation both of the ob- 
 ligation of the person delegating, by his 
 giving his creditor a new debtor, and of the 
 person delegated, by the new obligation 
 which he contracts. Pothier, ut supra.
 
 DELEGATION 
 
 820 
 
 DELEGATION 
 
 In general, where the person delegated 
 contracts a valid obligation to the creditor, 
 the delegant is entirely liberated, and the 
 creditor has no recourse against him in case 
 of the substitute's insolvency. There is an 
 exception to this rule when it is agreed that 
 the debtor shall at his own risk delegate an- 
 other person ; but even in that case the cred- 
 itor must not have omitted using proper 
 diligence to obtain payment whilst the sub- 
 stitute continued solvent. Pothier. 
 
 Delegation differs from transfer and sim- 
 ple indication. The transfer which a cred- 
 itor makes of his debt does not include any 
 novation. It is the original debt which 
 passes from one of the parties, who makes 
 the transfer to the other, who receives it, 
 and only takes place between these two per- 
 sons, without the consent of the debtor nec- 
 essarily intervening. Again, when the debtor 
 indicates to the creditor a person from whom 
 he may receive payment of the debt, and to 
 whom tbe debtor gives the creditor an order 
 for the purpose, it is merely a mandate, and 
 neither a transfer nor a novation. So, where 
 the creditor indicates a person to whom his 
 debtor may pay the money, the debtor does 
 not contract any obligation to the person in- 
 dicated, but continues the debtor of his cred- 
 itor who made the indication. Pothier. See 
 Novation. 
 
 At Common Law. The transfer of authori- 
 ty from one or more persons to one or more 
 others. 
 
 Any person, sui juris, may delegate to an- 
 other in authority to act for him in a matter 
 which is lawful and otherwise capable of 
 being delegated; Comyns, Dig. Attorney, c. 
 1 ; 9 Co. 75 6 ; Story, Ag. § 6. 
 
 When a bare power or authority has been 
 given to another, the latter cannot, in gen- 
 eral, delegate that authority, or any part 
 of it, to a third person, for the obvious rea- 
 son that the principal has relied upon the 
 intelligence, skill, and ability of his agent, 
 and cannot have the same confidence in a 
 stranger; Story, Ag. § 13; 2 Kent 633; 
 Broom, Leg. Max. 839; Shankland v. Wash- 
 ington, 5 Pet. (U. S.) 390, 8 L. Ed. 166; Ex 
 parte Winsor, 3 Sto. 411, 425, Fed. Cas. No. 
 17,884 ; Entz v. Mills, 1 McMull. (S. C.) 453 ; 
 Brewster v. Hobart, 15 Pick. (Mass.) 303; 
 Wilson v. R. Co., 11 Gill & J. (Md.) 58: 
 Mason v. Wait, 4 Scam. (111.) 127,133; Smith 
 v. Lowther, 35 W. Va. 300, 13 S. E. 999; 
 Whitlock v. Washburn, 62 Hun 369, 17 N. 
 Y. Supp. 60. A power to delegate his au- 
 thority may, however, be given to the agent 
 by express terms of substitution ; Commer- 
 cial Bank of Lake Erie v. Norton, 1 Hill (N. 
 Y.) 505. If the power of the agent is cre- 
 ated by writing, he cannot go beyond it; 
 Henry v. Lane, 128 Fed. 243, 62 C. C. A. 625. 
 Sometimes such power is implied, as in 
 the following cases : First, when, by the 
 law, such power is indispensable in order to 
 
 accomplish the end proposed: as, for exam- 
 ple, when goods are directed to be sold at 
 auction, and the law forbids such sales ex- 
 cept by licensed auctioneers ; Laussatt v. 
 Lippincott, 6 S. & R. (Pa.) 386, 9 Am. Dec. 
 440. Second, when the employment of such 
 substitute is in the ordinary course of trade: 
 as, where it is the custom of trade to em- 
 ploy a shipbroker or other agent for the 
 purpose of procuring freight and the like; 
 2 M. & S. 301; Gray v. Murry, 3 Johns. Ch. 
 (N. Y.) 107; Laussatt v. Lippincott, 6 S. & 
 R. (Pa.) 386, 9 Am. Dec. 440. Third, when it 
 is understood by the parties to be the mode 
 in which the particular thing would or might 
 be done ; 9 Ves. 234, 251, 252 ; 2 M. & S. 301, 
 303, note. See the Guiding Star, 53 Fed. 936. 
 Fourth, when the powers thus delegated are 
 merely mechanical in their nature; Commer- 
 cial Bank of Lake Erie v. Norton, 1 Hill 
 (N. Y.) 501; Sugd. Pow. 176. See Principal 
 and Agent. 
 
 As to the form of the delegation, for most 
 purposes it may be either in writing, not 
 under seal, or verbally without writing; or 
 the authority may be implied. When, how- 
 ever, the act is required to be done under 
 seal, the delegation must also be under seal 
 unless the principal is present and verbally 
 or impliedly authorizes the act; Story, Ag. 
 § 51; Mech. Ag. 81; Gardner v. Gardner, 5 
 Cush. (Mass.) 483, 52 Am. Dec. 740. 
 
 Judicial power cannot be delegated; Cohen 
 v. Hoff, 3 Brev. (S. C.) 500; Fertilizer Co. v. 
 Taylor, 112 N. C. 141, 17 S. E. 69; a statute 
 authorizing an attorney to sit in the place 
 of a judge who was disqualified, by reason 
 of prejudice or interest, is void ; Van Slyke 
 v. Ins. Co., 39 Wis. 390, 20 Am. Rep. 50. 
 
 Of Legislative Power. It is the general 
 rule that legislative power cannot be dele- 
 gated by the legislature to any other body 
 or authority; Brewer Brick Co. v. Brewer, 
 62 Me. 62, 16 Am. Rep. 395; Farnsworth 
 Co. v. Lisbon, 62 Me. 451 ; Willis v. Owen, 
 43 Tex. 41; Appeal of Locke, 72 Pa. 491, 
 13 Am. Rep. 716; State v. Wilcox, 45 Mo. 
 458; State v. Parker, 26 Vt. 362; Rice v. 
 Foster, 4 Harring. (Del.) 479; Barto v. 
 Himrod, 8 N. Y. 483, 59 Am. Dec. 506; 
 Cooley, Const. Lim. 141; U. S. v. Bridge Co., 
 45 Fed. 178; City of St. Joseph v. Wilshire, 
 47 Mo. App. 125; see Marshall Field & Co. 
 v. Clark, 143 U. S. 649, 12 Sup. Ct. 495, 
 36 L. Ed. 294; but the taking effect of a 
 statute may be made to depend upon some 
 subsequent event; The Aurora v. U. S., 7 
 Cra. (U. S.) 382, 3 L. Ed. 378; Mayor, etc., 
 of Baltimore v. Clunet, 23 Md. 449; Lothrop 
 v. Stedman, 42 Conn. 583, Fed. Cas. No. 
 S.519. 
 
 It has often been said that it is elemen- 
 tary law that legislative power cannot be del- 
 egated. The difficulty is in determining what 
 authority or discretion may be conferred on 
 a body other than the legislature without
 
 DELEGATION 
 
 821 
 
 DELEGATION 
 
 contravening constitutional principle. The 
 general question was the subject of extended 
 discussion in a case sustaining the validity 
 of an act conferring upon railroad commis- 
 sioners the power to determine what are 
 reasonable rates for transportation ; State v. 
 Ry. Co., 38 Minn. 281, 37 N. W. 7s2. 
 
 In that case the court quotes from a previous de- 
 cision (State v. Young, 29 Minn. 474, 9 N. W. 737) the 
 general rule against the delegation of legl 
 power, as requiring the legislature to pass upon two 
 things, the authority to make, and the exi- 
 of, the enactment. The court then proceeds to lay 
 down a limitation for the rule growing out of the 
 necessity of the exercise of discretion and judgment 
 in the exercise of certain powers. Attention is di- 
 rected to the difficulty in many cases of discriminat- 
 ing between what is properly legislative and what 
 may be executive or administrative duty, and it is 
 said that, while still recognizing the difference be- 
 tween the departments of government, "the maker 
 of the law may commit something to the discretion 
 of the other departments, and the precise boundary 
 of this power is a subject of delicate and difficult 
 Inquiry into which a court will not necessarily en- 
 ter. Wayman v. Southard, 10 Wheat. (U. S.) 1, 46, 
 6 L. Ed. 253. The principle is repeatedly recognized 
 by all courts that the legislature may authorize oth- 
 ers to do things which it might properly, but can- 
 not conveniently or advantageously, do itself. All 
 laws are carried into execution by officers appointed 
 for the purpose ; some with more, others with less, 
 but all clothed with power sufficient for the efficient 
 execution of the law. These powers often necessa- 
 rily involve in a large degree the exercise of discre- 
 tion and judgment even to the extent of investigat- 
 ing and determining the facts, and acting upon and 
 In accordance with the facts as thus found. In fact, 
 this must be so, if the legislature is to be permuted 
 effectually to exercise its constitutional powers. 
 If this was not permissible, the wheels of govern- 
 ment would often be blocked and the sovereign 
 state find itself hopelessly entangled In the meshes 
 of Its own constitution." A number of examples 
 are given of statutes granting discretionary powers 
 to officers charged with the execution of the laws ; 
 power given to boards in control of public institu- 
 tions to make contracts, adopt rules, etc.; the as- 
 sessment of property for the purpose of taxation; 
 the exercise of the police power in requiring and 
 granting licenses, and the conclusion is stated in 
 the exact words of Judge Ranney, quoted infra. 
 
 The decision of the Minnesota case was reversed 
 upon grounds not affecting this general statement of 
 the doctrine of the delegation of legislative power ; 
 Chicago, M. & St. P. Ry. Co. v. Minnesota, 134 U. 
 S. 418, 10 Sup. Ct. 462, 702, 33 L. Ed. 970. 
 
 This question was elaborately considered 
 by the supreme court in Marshall Field & 
 Co. v. Clark, 143 U. S. 649, 12 Sup. Ct. 495, 
 36 L. I'M. 294. In this case it was held that 
 the authority conferred by a tariff act upon 
 the president to suspend by proclamation 
 the free introduction of sugar, etc., when he 
 should be satisfied lhat any country produc- 
 ing such articles imposed duties or other 
 exactions upon agricultural or other products 
 of the United States, did not conflict with 
 the recognized principle that congress could 
 not delegate its legislative power to the pres- 
 ident. The law was complete when it was 
 declared that the suspension should take ef- 
 fect upon a named contingency, the presi- 
 dent was the mere agent to ascertain the 
 event upon which the legislative will was 
 to take effect. The court quotes with ap- 
 proval the language, often cited, of Ranney, 
 
 J., in Cincinnati, W. & Z. R. Co. v. County 
 Com'rs, 1 Ohio St SS : "The true distinc- 
 tion is between the delegation of power to 
 make the law, which necessarily involves a 
 discretion as to what it shall be, and con- 
 ferring authority or discretion as to i: 
 CUtion, to be exercised under and in ; 
 ance of the law. The first cannot be 
 to the latter no valid objection can be m 
 Two Pennsylvania cases are quoted with 
 approval as follows: "Half the statu' 
 our books are in the alternative, depending 
 on the discretion of some person or p< 
 to whom is confided the duty of determin- 
 ing whether the proper occasion i 
 executing them. But it cannot be said that 
 the exercise of such discretion is the malum,' 
 of the law." Moers v. < ity of Reading, 21 
 Pa. 188, 202. "To assert that a law i 
 than a law, because it is made to depend 
 on a future event or act, is to rob the 
 lature of the power to act wisely for the 
 public welfare whenever a law is pass d re- 
 lating to a state of affairs not yet developed, 
 or lo tilings future and impossible to fully 
 know." The proper distinction, the court 
 said, was this: "The legislature cannot del- 
 egate Its power to make a law; but it can 
 make a law to a power to deter- 
 
 mine some fact or state of things upon 
 which the law makes, or intends to make 
 its own action depend. To deny this would 
 be to stop the wheels of government. There 
 are many things upon which wise and useful 
 Legislation must depend which cannot be 
 known to the law-making power, and must, 
 therefore, be subject to inquiry and deter- 
 mination outside of the halls of legislation." 
 Appeal of Locke. 71' Pa, 491, 498, 13 Am. 
 Rep. 716. 
 
 While it is difficult to define the line which 
 separates legislative power to make laws and 
 and administrative authority to make regula- 
 tions, congress may delegate power to fill up 
 details where it has indicated Its will in the 
 statute, and it may make violations of 
 regulations punishable as indicated in the 
 statute. Regulations of the secretary i 
 riculture as to grazing sheep on 
 serves have the force of law; and violation 
 thereof is punishable under K. S. Sec 5388; 
 U. S. v. Grimaud. L'L'o V. S. 506, •' , .l Sup. ft. 
 4S0, 55 L. Ed. 563. The authority given by 
 congress to the secretary of war to prescribe 
 rules and regulations for the use, adminis- 
 tration, and control of canals, etc., owned or 
 operated by the United states, is held not to 
 be a delegation of legislative power, and rules 
 made pursuant thereto have the force of 
 law: r. s. v. Ormsbee, 71 Fed. 207. So au- 
 thority given to the same officer lo decide as 
 to whether bridges over navigable rivers in- 
 terfere with navigation is not a delegation 
 of legislative power: Union Bridge «'". v. U. 
 s., -jiu r. s. 364, 27 sup. ct. 367, 51 I.. Ed. 
 523; r. s. v. cit\ ..I' Moline, 82 Fed. 592; 
 and see Miller v. New York, 109 U. a. 3^:,,
 
 DELEGATION 
 
 822 
 
 DELEGATION 
 
 3 Sup. Ct. 22S, 27 L. Ed. 971 ; nor is the de- 
 termination of the treasury department of 
 standards of teas that may be imported ; 
 Buttfield v. Strauahan, 192 U. S. 470, 24 Sup. 
 Ct 349, 48 L. Ed. 525. Congress may con- 
 fer upon the department of commerce and la- 
 bor the power to determine the right of a 
 Chinese person to enter the United States 
 and may make the decision of that depart- 
 ment conclusive on the federal courts in ha- 
 beas corpus proceedings even where citizen- 
 ship is the ground on which the right of en- 
 try is claimed; U. S. v. Ju Toy, 19S U. S. 
 253, 25 Sup. Ct. 644, 49 L. Ed. 1040. 
 
 Where the decision of questions of fact is 
 committed by congress to the judgment of 
 the head of a department, his decision is 
 conclusive ; and even upon mixed questions 
 of law and fact, or of law alone, there is a 
 strong presumption of its correctness and 
 the courts will not ordinarily review it, al- 
 though they may occasionally do so ; Bates 
 
 6 Guild Co. v. Payne, 194 U. S. 106, 24 Sup. 
 Ct. 595, 48 L. Ed. 894, where the court re- 
 fused to interfere with the decision of the 
 postmaster general as to the postal rates to 
 be charged on a certain publication. The 
 findings of the land department are treated 
 by the courts as conclusive, though such pro- 
 ceedings involve, to a certain extent, the ex- 
 ercise of judicial power ; Burfenning v. R. 
 Co., 163 U. S. 321, 16 Sup. Ct. 1018, 41 L. Ed. 
 175 ; Johnson v. Drew, 171 U. S. 93, 18 Sup. 
 Ct. 800, 43 L. Ed. 88. And since the land 
 department is constituted a special tribunal 
 with judicial functions, neither injunction 
 nor mandamus will lie against an officer of 
 that department to control him in discharg- 
 ing an official duty requiring the exercise of 
 his judgment and discretion ; U. S. v. Hitch- 
 cock, 190 U. S. 316, 23 Sup. Ct. 698, 47 L. 
 Ed. 1074, citing Marquez v. Frisbie, 101 U. 
 S. 473, 25 L. Ed. 800; Gaines v. Thompson, 
 
 7 Wall. (U. S.) 347, 19 L. Ed. 62; U. S. v. 
 Black, 128 U. S. 40, 9 Sup. Ct. 12, 32 L. Ed. 
 354 ; U. S. v. Windom, 137 U. S. 636, 11 Sup. 
 Ct. 197, 34 L. Ed. 811. 
 
 There seems to be a presumption that of- 
 ficers of state making rules under statutory 
 powers have not exceeded their authority ; 
 Lord Esher in (1887) 18 Q. B. Div. 383, 400. 
 
 The legislature may confer upon commis- 
 sions the power to determine for what pur- 
 poses, and upon what terms, conditions, and 
 limitations, an increase of capital stock may 
 be made by railroad corporations ; State v. 
 Ry. Co., 100 Minn. 445, 111 N. W. 289, 10 
 L. R. A. (N. S.) 250. It may not authorize 
 such commission to allow an increase of cap- 
 ital stock for such purposes and on such 
 terms as it may deem advisable, or in its 
 discretion to refuse it; this being an attempt 
 to delegate legislative power ; id. 
 
 It may provide, in appeals from orders 
 of the state railroad commission, that the 
 burden of proof shall rest upon the party 
 seeking to set aside the decision of the com- 
 
 missioners of showing that the order is 
 unreasonable and unjust, and that the record 
 shall be prima facie evidence that the order 
 is just and reasonable; Chicago, R. I. & P. 
 R. Co. v. Ry. Commission, 85 Neb. 818, 124 
 N. W. 477, 26 L. R. A. (N. S.) 444. 
 
 It may enact a law, complete in itself, de- 
 signed to accomplish a general public pur- 
 pose, and may expressly authorize designated 
 officials, within definite valid limitations to 
 provide rules and regulations for the com- 
 plete operation and enforcement of the law 
 within its expressed general purpose ; State 
 v. R. Co., 56 Fla. 617, 47 South. 969, 32 L. 
 R. A. (N. S.) 639. 
 
 The legislature may confer upon the state 
 auditor the right to issue licenses for book- 
 making on horse races to persons of good 
 character ; State v. Williams, 160 Mo. 333, 60 
 S. W. 1077; may require consent of park 
 commissioners for orations in a park ; Com. 
 v. Abrahams, 156 Mass. 57, 30 N. E. 79; or 
 of a city committee for orations on a com- 
 mon; Com. v. Davis, 140 Mass. 485, 4 N. E. 
 577 ; or of the clerk of a market for the use 
 of a stand on the street; In re Nightingale, 
 11 Pick. (Mass.) 16S ; may require a permit 
 in writing from the board of health to keep 
 swine; Inhabitants of Quincy v. Kennard, 
 151 Mass. 563, 24 N. E. 860; or from the com- 
 missioners of the town to erect wooden 
 buildings ; Commissioners of Easton v. Cov- 
 ey, 74 Md. 262, 22 Atl. 266 ; or from the pres- 
 ident of the board of trustees of a munici- 
 pality to beat drums in the travelled streets 
 of a city; In re Flaherty, - 105 Cal. 558, 38 
 Pac. 981, 27 L. R. A. 529. A commission may 
 be authorized to select and adopt a uniform 
 series of text-books for the schools of a 
 state; Leeper v. State, 103 Tenn. 500, 53 S. 
 W. 962, 48 L. R. A. 167 ; or voting machines 
 for use in elections; Elwell v. Comstock, 99 
 Minn. 261, 109 N. W. 113, 698, 7 L. R. A. 
 (N. S.) 621, 9 Ann. Cas. 270; The McTam- 
 many Voting Machine, 23 R. I. 630, 50 Atl. 
 265; City of Detroit v. Board of Inspectors 
 of Election, 139 Mich. 548, 102 N. W. 1029, 
 69 L. R. A. 184, 111 Am. St. Rep. 430; Lynch 
 v. Malley, 215 111. 574, 74 N. E. 723, 2 Ann. 
 Cas. 837 ; Opinion of Justices to House of 
 Representatives, 178 Mass. 605, 60 N. E. 
 129, 54 L. R. A. 430 (by a divided court). 
 A statute authorizing measures preventive 
 of smallpox confers authority upon a board 
 to compel vaccination during an epidemic; 
 Blue v. Beach, 155 Ind. 121, 56 N. E. 89, 50 
 L. R. A. 64, 80 Am. St. Rep. 195; and one 
 giving general sanitary power authorizes a 
 board to keep adulterated milk out of a city; 
 Polinsky v. People, 73 N. Y. 65. 
 
 A provision that a boiler inspector's act 
 shall not apply to boilers inspected by in- 
 surance companies and certified by their au- 
 thorized inspectors to be safe; State v. Mc- 
 Mahon, 65 Minn. 453, 68 N. .W. 77 ; and an 
 act providing that hogs shall not run at
 
 DELEGATION 
 
 823 
 
 DELEGATION 
 
 large in a county, if the county courts on 
 petition of voters direct that the act be en- 
 forced therein; Ilaigh v. Bell, 41 W. V;i. 19, 
 23 S. B. 860, 31 L. EL A. 131; are valid. 
 
 Acts held not to be a delegation of legis- 
 lative power and therefore valid, arc author- 
 izing the fish commissioners to give permits 
 to take fish for propagation at times and by 
 methods otherwise prohibited; People v. 
 Brooks, 101 Mich. 98, 59 N. W. Ill; requir- 
 ing carriers of passengers to furnish their 
 agents with certificates of authority to sell 
 tickets, on which a license shall be Issued 
 by the state: State v. Corbett, 57 Minn. ::i7. 
 59 N. W. 317, 24 L. EL a. 498; authorizing 
 a court to issue certificates of incorporation 
 to municipalities; In re Town of Union 
 Mines, ::;) vv. Va. 179, 19 S. E. 398; permit- 
 ting the board of supervisors of counties 
 to determine whether a county shall come 
 within or remain without the provisions of 
 an act to estahlish law libraries; Board of 
 Law Library Trustees v. Board of Super- 
 visors, 99 Cal. 571, 34 Atl. 244; providing 
 that an act in relation to public roads shall 
 not go into effect until recommended by the 
 grand jury; Ilaney v. Bartow County Com'rs, 
 91 Ga. 770, 18 S. E. 28 ; authorizing railroad 
 and warehouse commissioners to make a 
 schedule of a maximum rate of charges for 
 each railroad company in the state; Chicago, 
 B. & Q. R. Co. v. Jones, 149 111. 361, ::7 X. 
 E. 247, 24 L. R. A. 141, 41 Am. St. Kep. 278 ; 
 authorizing the union of two railroad com- 
 panies and that the united company may dis- 
 continue such operations of the road as the 
 directors deem necessary; Farnum v. K. R., 
 66 N. H. 569, 29 Atl. 541; authorizing rail- 
 road commissioners to regulate freights; 
 Georgia R. R. v. Smith, 70 Ga. O'.H ; or to 
 make reasonable regulations for the preven- 
 tion of excessive charges and unjust discrim- 
 ination; Atlantic Exp. Co. v. R. Co., Ill N. C. 
 463, 16 S. E. 393, 18 L. R. A. 393, .;_' Am. St. 
 Rep. 805; or to fix rates; Michigan Cent. R. 
 Co. v. Railroad Commission, 1<:<> Mich. 355, 
 125 X. W. 549; Oregon R. & Nav. Co. v. 
 Campbell, 173 Fed. 957; Southern Indiana 
 Ry. Co. v. Railroad Commission, ITU ind. 
 113, 87 N. E. 900; Trustees of Village of 
 Saratoga Springs v. Power Co., 101 N. Y. 
 123, 83 N. E. 693, 18 L. EL A. (N. S.) 713; 
 or to order a company to remove grade 
 crossings and on its failure to do so to de- 
 termine the portion of the expense thereof 
 which is to lie paid by the company; Appeal 
 of New York & N. E. K. Co.. 02 Conn. .VJ7. 
 26 Atl. 122; to provide that the mayors Of 
 cities of a certain class may be elected by 
 the people or appointed by the council as 
 
 provided by ordinance; Brown v. Holland, 30 
 
 s. \v. 629, 17 Ky. L. Rep. 149; to authorize 
 
 park commissioners to determine where and 
 of what material sidewalks and road beds 
 shall be constructed: Turner v. City of De- 
 troit, 104 Mich. 320, 02 N. W. in;,: to au- 
 thorize a state medical board to exercise 
 
 powers of ion and examination ; 
 
 France v. State, i >t. l, 47 N. e. phi, 
 
 38 Ohio L. J. u:;:». 
 A legislative body m ;te to an 
 
 Official the po U ,r (.. ft] . 
 
 tion on which I 
 
 conditioned and to i 
 
 lations for enforcing the act; St I 
 
 chant -' i erminal EL < !o. v. i . - 
 
 . C. A. 03 ,. It 
 
 cannot d< l< lawmakin . -r its 
 
 indispt usable discretion to i stat- 
 
 ute; i<l. 
 
 statutes declaring that railroad 
 service shall ho reasonable, and creating a 
 commission with power to tiv 
 tag rates and service, and to fix and deter- 
 mine what rates and what Bervice ar>- rea- 
 sonable, the Btatute then providing that the 
 and service so fixed shall be in force. 
 have boon generally upheld, as a valid ex- 
 orcise of the legislative power; 8 one v. 
 Trust cm.. ii.; r. s. :;<i7. <; Sup. cr. :;:: 
 1191, 29 L. Ed. 636 : Reagan v. Trust i 
 154 U. S. .°»02. 14 Sup. Ct 1047, 88 L. Ed. 
 LOU; Georgia R. EL v. Smith. 7<> 6a 
 Chicago, C. & Q. R. Co. v. Jones. i 19 in. 361, 
 
 37 N. E. LM7. 21 L. It. A. 141. 41 Am. St. 
 Rep. 27S; Hopper v. By. Co.. 91 la. 6 
 
 N. W. 487; state v. R. Co., B0 Minn. L91, 
 83 X. W. '■,(». gg Am. St. Rep. 514; Railroad 
 Commission of Texas v. Ry, Co.. 90 Tex. 340, 
 
 38 S. W. 750; Michigan Cent R. Co. v. Kail- 
 road Commission, 100 Mich. .'!."."., 125 X. W. 
 549. 
 
 The legislature may declare the general 
 rule of law to be in force and take < 
 upon the subsequent establishment of the 
 facts necessary to make it operative, or to 
 call for its application, as the bankruptcy 
 law of the United States with reference to 
 Legislative action regarding exemption laws 
 existing or to be thereafter enacted; Han- 
 over Nat Bank v. Moyses, 186 U. s. 181, 22 
 Sup. Ct. 857, 46 L. Ed. Hi::: or a law may 
 he made to take effect conditionally, depend- 
 ing upon the action of the legislature of an- 
 other state fixing tin 1 amount to he enacted: 
 Phoenix ins. Co. of New York v. Welch, •_".• 
 Kan. '',72; or it may he conditioned upon the 
 legislative act of a city council: Adams v. 
 City of I'.oloit. 105 Wis. 363, 81 N. W. 869, 
 47 L. R. A. 441: or upon action of t: 
 ecutiLve; In re Griner, 16 Wis. 424; Mar- 
 shall Field & Co. v. Clark. 14:: r. s. 649, 1L' 
 Sup. Ct 49.-. ::t; L. Ed. 294; or upon judicial 
 action Involving the determination of ques- 
 tions of fact ; In re Incorporation of Village 
 of North Milwaukee. 93 ^'is. 616, 67 X. NY. 
 1033, 33 L. R. A. 638; or upon administra- 
 tive action; state v. Burdge, '.'•"> Wis. 390, 
 
 70 X. \V. ::i7. .".7 I.. K. A. 157, 60 Am. St. 
 Rep. 123; or upon a declaration of fact or 
 the creation of a condition by vote of the 
 electors of a municipality: State v. I linked, 
 131 Wis. 103, 111 X. W. L-17. 
 
 Authority to transfer cases pending in a
 
 DELEGATION 
 
 824 
 
 DELEGATION 
 
 territorial court to the federal courts may 
 be delegated to a constitutional convention, 
 upon the admission of the territory as a 
 state ; Hecht v. Metzler, 82 Fed. 340. 
 
 Acts held invalid as an improper delega- 
 tion by the legislature of the police power 
 are : An act directing the insurance com- 
 missioner to prescribe a standard policy and 
 forbidding the use of any other; O'Neil v. 
 Ins. Co., 166 Pa. 72, 30 Atl. 943, 26 L. R. A. 
 715, 45 Am. St. Rep. 650; acts authorizing 
 insurance commissioners to adopt a printed 
 form of fire policy with conditions indorsed 
 thereon, which, as nearly as possible, in 
 type and form shall conform to that adopted 
 by another state; Dowling v. Ins. Co., 92 
 "Wis. 63, 65 N. W. 738, 31 L. R. A. 112 ; An- 
 derson v. Fire Assur. Co., 59 Minn. 182, 60 N. 
 W. 1095, 63 N. W. 241, 28 L. R. A. 609, 50 
 Am. St. Rep. 400, in which it was admitted 
 that an act similar to that of Pennsylvania 
 would be invalid, but it was unsuccessfully 
 contended that the legislative direction to 
 conform as nearly as possible to a specified 
 policy would take the case out of the prin- 
 ciple laid down by the Pennsylvania court. 
 So also was an act permitting a justice to 
 put a person charged with drunkenness as 
 a disorderly person under recognizance to 
 take the treatment of a private corporation 
 administering ' a cure for drunkenness, and 
 providing that on reports showing compli- 
 ance, he should be acquitted and discharg- 
 ed; Senate of Happy Home Clubs v. Board 
 of Supervisors, 99 Mich. 117, 57 N. W. 1101, 
 23 L. R. A. 144. 
 
 A law providing for the adjustment of 
 state bonds, and authorizing judges to de- 
 cide which of two sections of the act should 
 take effect, gives them legislative power 
 and is void ; State v. Young, 29 Minn. 474, 
 9 N. W. 737 ; in this case the subject was 
 very elaborately argued, and the distinction 
 between legislative and judicial power is 
 very clearly stated by the court. See supra. 
 
 The legislature cannot leave to commis- 
 sioners the power to decide in what pro- 
 portion the expense of laying out and open- 
 ing a public avenue should be imposed on 
 townships of a county, or wards of a city; 
 State v. County Com'rs, 37 N. J. L. 12. 
 
 The legislature may not delegate the pow- 
 er to make a law prescribing a penalty, but 
 it is competent for the legislature to au- 
 thorize the railroad commission to prescribe 
 duties upon which the law may operate in 
 imposing a penalty and in effectuating the 
 purpose designed in enacting the law. 
 Where a penalty is imposed by law, it may 
 be incurred for the penal violation of a rule 
 prescribed by the. railroad commission with- 
 in their express authority; State v. R. Co., 
 56 Fla. 617, 47 South. 969, 32 L. R. A. (N. S.) 
 639, where the commissioners adopted a rule 
 that all railroads would be liable to the 
 shipper to a charge of $1 per day for detain- 
 ing cars. Such a charge was held not a 
 
 penalty, but a monetary obligation incurred 
 for breach of duty that may be enforced by 
 the shipper. 
 
 Congress may not delegate its general leg- 
 islative power to the District of Columbia ; 
 Stoutenburgh v. Hennick, 129 U. S. 141, 9 
 Sup. Ct 256, 32 L. Ed. 637; nor its purely 
 legislative power to a commission, but, hav- 
 ing laid down the general rules of action 
 under which a commission shall proceed, it 
 may require of that commission the applica- 
 tion of such rules to particular situations 
 and the investigation of facts with a view 
 to making orders in a particular matter 
 within the rules laid down by the congress; 
 Interstate Commerce Commission v. Tran- 
 sit Co., 224 TL S. 215, 32 Sup. Ct. 436, 56 
 L. Ed. 729, citing Buttfield v. Stranahan, 192 
 U. S. 470, 24 Sup. Ct. 349, 48 L. Ed. 525; 
 Union Bridge Co. v. U. S., 204 U. S. 364, 27 
 Sup. Ct. 367, 51 L. Ed. 523 ; U. S. v. Grim- 
 aud, 220 U. S. 506, 31 Sup. Ct 480, 55 L. Ed. 
 563. 
 
 Leaving to the interstate commerce com- 
 mission the carrying out of details in the 
 exercise of its discretion is not a delega- 
 tion of legislative authority ; Interstate 
 Commerce Commission v. Transit Co., 224 
 U. S. 194, 32 Sup. Ct. 436, 56 L. Ed. 729. 
 The commission may require common car- 
 riers to adopt a uniform system of account- 
 ing and bookkeeping and to make annual 
 reports embracing not only their joint rail 
 and water business, but the other business 
 of the carriers as well, such as their port 
 to port business, both intrastate and inter- 
 state, and the business of operating amuse- 
 ment parks ; Interstate Commerce Commis- 
 sion v. Transit Co., 224 U. S. 194, 32 Sup. 
 Ct. 436. 56 L. Ed. 729. 
 
 It is said that the power vested in boards 
 of health to forbid by general regulations 
 the exercise within their respective towns 
 of any trade which is a nuisance is in its 
 nature quasi-judicial. Its exercise requires 
 the officers charged with the duty to use 
 their discretion and judgment in adjudi- 
 cating on the subject-matter. This is the 
 decisive test that the authority vested in 
 them is judicial and not ministerial merely; 
 Belcher v. Farrar, 8 Allen (Mass.) 325. In 
 Nelson v. State Board of Health, 186 Mass. 
 330, 71 N. E. 693, it is said there are two 
 classes of regulations — the general and the 
 special. The general regulations are said 
 to be quasi-legislative, while those regard- 
 ing a particular case are termed quasi-ju- 
 dicial. Where commissioners determined 
 that sawdust from a particular mill might 
 not be discharged into a stream because of 
 injury to fish therein, the court held the 
 commissioners' order to be a legislative one 
 and so valid without notice or hearing; Com. 
 v. Sisson, 189 Mass. 247, 75 N. E. 619, 1 L. 
 R. A. (N. S.) 752, 109 Am. St. Rep. 630. 
 Since the decision in this case, a Massachu- 
 setts Act requires commissioners before mak-
 
 DELEGATION 
 
 825 
 
 DELIBERATION 
 
 Ing an order forbidding the discharge of 
 sawdust into a stream, to give notice there- 
 of and a hearing thereon and giving to per- 
 sons aggrieved thereby a right of appeal to 
 the superior court sitting in equity. See 20 
 Harv. L. R. 11G, wbere the query is made: 
 Have the commissioners become judicial 
 since the passage of the Act? 
 
 Tower may be conferred upon a state of- 
 ficer, as such, to execute a duty imposed un- 
 der an act of congress; Dallemagne v. Mol- 
 san, 197 U. S. 169, 25 Sup. Ct. 422, 49 L. Ed. 
 709. 
 
 The legislature may delegate to a com- 
 mission the power to determine the bound- 
 aries of the sections of a city in which build- 
 ings of different heights as determined by 
 the legislature shall be erected; Welch v. 
 Swasev, 193 Mass. 364, TON. B. 71". 118 Am. 
 St. Rep. 523, 23 L. R. A. (N. S.) 1160; it 
 may confer upon examining boards appoint- 
 ed by the mayors in certain cities in the 
 state, the power to examine plumbers as to 
 their fitness; People v. Warden of City Pris- 
 on, 144 N. Y. 529. 39 N. E. 68G, 27 L. R. A. 
 718; but it cannot delegate to a board au- 
 thority to require a knowledge of embalm- 
 ing as a condition to receiving an under- 
 taker's license; Wyeth v. Board of Health, 
 200 Mass. 474, 86 N. E. 925, 128 Am. St. Rep. 
 439, 23 L. R. A. (N. S.) 147. See Municipal 
 Corporation. 
 
 It may empower the courts on the appli- 
 cation of local authorities and, after notice 
 to railway companies, to order that gates be 
 erected at the intersection of a railroad and 
 a street ; People v. R. Co., 134 N. T. 506, 31 
 N. E. 873. 
 
 Sir F. Pollock (First Book of Jurisp. 244) 
 points out the difference in constitutional 
 law between delegated and devolved, apply- 
 ing the latter term, for instance, to the pow- 
 ers given by parliament to the legislatures 
 of British colonies which are plenary within 
 the appointed limits, such a legislature not 
 being "a mere delegate or agent of the im- 
 perial parliament." 
 
 As to the delegation of power by directors 
 of a corporation to an executive committee, 
 or of a bank to its executive officers, see 
 Directors ; National Bank ; Officer ; 
 Cashier. 
 
 As to the delegation of legislative power in 
 the government of the Phillipine Islands, see 
 
 PlIILLIPINES. 
 
 As to questions relating to the submission 
 of legislation to a popular vote, Bee L 
 lative Power, and see also Initiative, Ref- 
 erendum, and Recall. 
 
 D^LESTAGE. In French Marine Law. 
 A discharging of ballast from a vessel. 
 
 DELIBERATE. To examine, to consult, 
 in order to form an opinion. Thus, a jury 
 deliberate as to their verdict. 
 
 DELIBERATION. The act of the under- 
 standing by which a party examines wheth- 
 
 er & thing proposed ought to be done or 
 not to be done, or whether it ought to be 
 done in one manner or another. 
 
 The deliberation relates to the end pro- 
 posed, to the means of accomplishing that 
 end, or to both. It is a presumption of law 
 that all acts are done with due delibera- 
 tion, — that the party intended to do what I 
 has done. But he may show the contrary. 
 In contracts, for example, he may show that 
 he lias been taken by surprise; and when 
 
 a criminal act is charged, he may prove 
 
 that it was an accident and not with delib- 
 eration, — that, in fact, there was no inten- 
 tion or will. See 18 Am. Dec. 778, n. 
 
 By the use of this word in describing the 
 crime of murder in the first degree, the idea 
 is conveyed that the perpetrator weighs I 
 motives for the act, and its consequenc 
 the nature of the crime, or other things con- 
 nected with his intentions, with a view to 
 a decision thereon, that he carefully con- 
 siders all these, and the act is not suddenly 
 committed; State v. Boyle, 28 la. 524. S 
 State v. Wieners. e,c, Mo. 13; Nye v. Peo- 
 ple, 85 Mieh. 16; Intent; Mubdkb; Mm. ice; 
 Cooling Time; Will. 
 
 In Legislation. Counsel or consultation 
 touching some business in an assembly hav- 
 ing the power to act in relation to it. 
 
 DELICT. In Civil Law. The act by which 
 one person, by fraud or malignity, Cfl 
 some damage or tort to some otl 
 
 In its most enlarged sense, this term Includes all 
 kinds of crimes and misdemeanors, anil even the 
 Injury which has been caused by another, either 
 voluntarily or accidentally, without evil intention. 
 But more commonly by delicts are understood those 
 small offences which are punished by a small fine or 
 a short imprisonment. 
 
 Private delicts are those which are direct- 
 ly injurious to a private individual. 
 
 Public delict* are those which affect the 
 whole community in their hurtful conse- 
 quences. 
 
 Quasi delicto are the acts of a person, who. 
 without malignity, but by an inexcusable 
 imprudence, causes an injury to another. 
 Pothier. Obi. n. 110; Erskine, Pr. 4. -1. 1. 
 
 DELICTUM (Lat.l. A crime or offence; 
 a tort or wrong, as in actions ex (/> licto. 1 
 Chit PL A challenge of a juror propter 
 m is for some crime or misdemeanor 
 that affects his credit and renders him infa- 
 mous. 3 Bla. Com. 363; 2 Kent 241. Some 
 offence committed or wrong done. 1 Kent 
 552; Cowp. 199, 200. A state of culpability. 
 Occurring often, in the phrase "in pari de- 
 licto meUor eat oon&itio de/endentt*." So, 
 where both parties to a broken contract 
 have been guilty of unlawful aets, the law 
 will not interfere, but Will leave them in 
 
 port delicto. 2 Green! Ely. § ill. 
 
 DELIMIT. To mark or lay out the limits 
 or boundary line of a territory or country. 
 
 DELINQUENT. One who has been guilty 
 of some crime, offence, or failure of duty.
 
 DELIRIUM FEBRILE 
 
 820 
 
 DELIRIUM TREMENS 
 
 DELIRIUM FEBRILE. In Medical Juris- 
 prudence. A form of mental aberration inci- 
 dent to febrile disease, and sometimes to 
 the last stages of chronic diseases. 
 
 The aberration is mostly of a subjective character, 
 maintained by the inward activity of the mind rath- 
 er than by outward impressions. "Regardless of 
 persons or things around him, and scarcely capable 
 of recognizing them when aroused by his attend- 
 ants, the patient retires within himself, to dwell up- 
 on the scenes and events of the past, which pass be- 
 fore him. in wild and disorderly array, while the 
 tongue feebly records the varying impressions, in 
 the form of disjointed, incoherent discourse, or of 
 senseless rhapsody." Ray, Med. Jur. 346. It comes 
 on gradually, being first manifested by talking while 
 asleep, and by a momentary forgetfulness of persons 
 and things on waking. Fully aroused, however, the 
 mind becomes clear and tranquil, and so continues 
 until the return of sleep, when the same incidents 
 recur. Gradually the mental disorder becomes more 
 intense, and the intervals between its returns of 
 shorter duration, until they disappear altogether. 
 Occasionally the past is revived with wonderful viv- 
 idness, and acquirements are displayed which the 
 patient, before his illness, had entirely forgotten. 
 Instances are related of persons speaking in a lan- 
 guage which, though acquired in youth, had long 
 since passed from their memory. See the definition 
 of delirium by Bland, Ch., in Owing's case, 1 Bland, 
 (Md.) Ch. 3S6, 17 Am. Dec. 311. 
 
 The only acts which are liable to be affected by 
 delirium are wills, which are often made in the last 
 illness during the periods when the mind is appar- 
 ently clear. Under such circumstances it may be 
 questioned whether the apparent clearness was or 
 was not real ; and it is a question not always easily 
 answered. In the early stages of delirium the mind 
 may be quite clear no doubt, in the intervals, while 
 it is no less certain that there comes a period at 
 last when no really lucid interval occurs and the 
 mind is reliable at no time. The person may be 
 quiet, and even answer questions with some degree 
 of pertinence, while a close examination would show 
 the mind to be in a dreamy condition and unable 
 to appreciate any nice relations. In all these cases 
 the question to be met is, whether the delirium 
 which confessedly existed before the act left upon 
 the mind no trace of its influence ; whether the tes- 
 tator, calm, quiet, clear, and coherent as he seemed, 
 was not quite unconscious of the nature of the act 
 he was performing. The state of things implied in 
 these questions is not fanciful. In every case it 
 may possibly exist, and the questions must be met. 
 After obtaining all the light which can be thrown 
 on the mental condition of the testator by nurses, 
 servants, and physicians, then the character of the 
 act itself and the circumstances which accompany 
 it require a careful investigation. If it should ap- 
 pear that the mind was apparently clear, and that 
 the act was a rational act rationally done, consist- 
 ent one part with another, and in accordance with 
 wishes or instructions previously expressed, and 
 without any appearance of foreign influence, then it 
 would be established. A different state of things 
 would to that extent raise suspicion and throw dis- 
 credit on the act. Yet at the very best it will occa- 
 sionally happen, so dubious sometimes are the indi- 
 cations that the decision will be largely conjectural. 
 1 Hagg Eccl. 146, 256, 502, 577 ; 2 id. 142 ; 3 id. 790 ; 
 1 Lee Eccl. 130 ; 2 id. 229. See Insanity. 
 
 DELIRIUM TREMENS (called, also, man- 
 ia-a-potu). In Medical Jurisprudence. A 
 
 form of mental disorder, usually accompa- 
 nied by tremor, incident to habits of intem- 
 perate drinkiug, which generally appears as 
 a sequel to a period of unusual excess or 
 after a few days' abstinence from stimulat- 
 ing drink. It may also be caused in in- 
 temperate subjects by an accident, fright, 
 
 or acute inflammatory disease, such aspneu 
 monia. 
 
 The nature of the connection between this disease 
 and abstinence is not yet clearly understood. Where 
 the former succeeds a broken limb, or any other 
 severe accident that confines the patient to his bed 
 and obliges him to abstain, it would seem as if its 
 development were favored by the constitutional dis- 
 turbance then existing. In other cases, where the 
 abstinence is apparently voluntary, there is some 
 reason to suppose that it is really the incubation of 
 the disease, and not its cause. 
 
 Its approach is generally indicated by a slight 
 tremor and faltering of the hands and lower extrem- 
 ities, a tremulousness of the voice, a certain rest- 
 lessness and sense of anxiety which the patient 
 knows not how to describe or account for, disturbed 
 sleep, and impaired appetite. These symptoms hav- 
 ing continued two or three days, at the end of 
 which time they have usually increased in severity, 
 the patient ceases to sleep altogether, and soon be- 
 comes delirious at intervals. After a while the de- 
 lirium becomes constant, as well as the utter ab- 
 sence of sleep. There is usually an elevation of tem- 
 perature of two or three degrees. This state of 
 watchfulness and delirium continues three or four 
 days, when, if the patient recover, it is succeeded by 
 sleep, which at first appears in uneasy and irregu- 
 lar naps, and lastly in long, sound, and refreshing 
 slumbers. If sleep does not supervene about this 
 time, the disease may prove fatal. 
 
 The mental aberration of delirium tremens is 
 marked by some peculiar characters. Almost in- 
 variably the patient manifests feelings of fear and 
 suspicion, and labors under continual apprehensions 
 of being made the victim of sinister designs and 
 practices. He imagines that people have conspired 
 to rob and murder him, and insists that he can hear 
 them in an adjoining room arranging their plans 
 and preparing to rush upon him, or that he is forci- 
 bly detained and prevented from going to his own 
 home. One of the most common hallucinations in 
 this disease is that of constantly seeing devils, 
 snakes, or vermin around him and on him. Under 
 the influence of the terrors inspired by these no- 
 tions, the wretched patient often endeavors to cut 
 his throat, or jump out of the window, or murder his 
 wife, or some one else whom his disordered imag- 
 ination identifies with his enemies. 
 
 Delirium tremens must not be confounded with 
 other forms of mental derangement which occur 1b 
 connection with intemperate habits. Hard drinking 
 may produce a paroxysm of maniacal excitement, 
 or a host of hallucinations and delusions, which dis- 
 appear after a few days' abstinence from drink and 
 are succeeded by the ordinary mental condition. In 
 U. S. v. McGlue, 1 Curt. cc. 1, Fed. Cas. No. 15,679, 
 for instance, the prisoner was defendant on the plea 
 that the homicide for which he was indicted was 
 committed in a fit of delirium tremens. There was 
 no doubt that he was laboring under some form of 
 insanity ; but the fact, which appeared in evidence, 
 that his reason returned before the recurrence of 
 sound sleep, rendered it very doubtful whether the 
 trouble was delirium tremens, although in every 
 other respect it looked like that disease. 
 
 By repeated decisions the law has been settled in 
 this country that delirium tremens annuls responsi- 
 bility for any act that may be committed under its 
 influence: provided, of course, that the mental con- 
 dition can stand the tests applied in other forms of 
 insanity. The law does not look to the remote 
 causes of the mental affection ; and the rule on this 
 point is, that if the act is not committed under the 
 immediate influence of intoxicating drinks, the plea 
 of insanity is not invalidated by the fact that it is 
 the result of drinking at some previous time. Such 
 drinking may be morally wrong ; but the same may 
 be said of other vicious indulgences which give rise 
 to much of the insanity which exists in the world ; 
 Whart. Cr. L. § 48 ; Beasley v. State, 50 Ala. 149, 
 20 Am. Rep. 292 ; Cluck v. State, 40 Ind. 263 ; Rob- 
 erts v. People, 19 Mich. 401; Carter v. State, 12 
 Tex 500, 62 Am. Dec. 539; Fisher v. State, 64 Ind.
 
 DELIRIUM TREMENS 
 
 827 
 
 DELIVERY 
 
 435; U. S. T. McGlue, 1 Curt. cc. 1, Fed. Cas. No. 
 15,679 ; U. S. v. Drew, 5 Mas. 28, Fed. Cas. No. 14,993 ; 
 State v. Wilson, Ray, Med. Jur. 520; State v. liar- 
 rigan, 9 Houst. (Del.) 3C9, 31 Atl. 1052 ; Ayres v. 
 State (Tex.) ^6 S. W. 396. In England, the existence 
 of delirium tremens has been admitted as an ex- 
 cuse for crime for the same reasons ; Reg v. Wat- 
 son and Reg v. Simpson, 2 Tayl. Med. Jur. 599 ; 14 
 Cox, Cr. Cas. 505. In the case of Birdsall, 1 Beck, 
 Med. Jur. 808, it was hold that delirium tremens was 
 not a valid defence, because the prisoner knew, by 
 repeated experience, that indulgence in drinking 
 would probably bring on an attack of the disease ; 
 see also In Roberts t. People, 19 Mich. 401. See 
 Drunkenness. 
 
 DELIVERANCE. In Practice. A term 
 used by the clerk in court to every prisoner 
 who is arraigned and pleads not guilty, to 
 whom he wishes a good deliverance. In 
 modern practice this is seldom used. 
 
 DELIVERY. The transfer of a deed from 
 the grantor to the grantee, or some person 
 acting in his behalf, in such a manner as to 
 deprive the grantor of his right to recall 
 it at his option. 
 
 An absolute delivery is one which is com- 
 plete upon the actual transfer of the instru- 
 ment from the possession of the grantor. 
 
 A conditional delivery is one which pass- 
 es the deed from the possession of the gran- 
 tor, but is not to be completed by possession 
 in the grantee, or a third person as his 
 agent, until the happening of a specified 
 event A delivery in this manner is an es- 
 crow (q. v.). 
 
 No particular form is required to effect 
 a delivery. It may be by acts merely, by 
 words merely, or by both combined; but in 
 all cases an intention that it shall be a deliv- 
 ery must exist; Com. Dig. Fait (A); 6 Sim. 
 31; Lindsay v. Lindsay, 11 Vt. 621; Arrison 
 v. Ilarmstead, 2 Pa. 191; Verplank v. Sterry, 
 12 Johns. (N. Y.) 536, 7 Am. Dec. 34S; Mills 
 v. Gore, 20 Pick. (Mass.) 28; Hughes v. Has- 
 ten, 4 J. J. Marsh. (Ky.) 572, 20 Am. Dec. 
 230; Hayes v. Boylan, 141 111. 400, 30 X. E. 
 1041, 33 Am. St. Rep. 326; Nazro v. Ware, 
 38 Minn. 443, 38 N. \Y. 359; Steflian v. Lank, 
 69 Tex. 513, 6 S. W. 623; Flint v. Phipps, 
 16 Or. 437, 19 Pac. 543. The unconditional 
 delivery of a deed to a third person for the 
 use of a lunatic grantee, not under guardian- 
 ship, followed by circumstances Indicating 
 acceptance by the grantee, is valid; Camp- 
 bell v. Knhn, -If) Mich. 513, 8 N. W. 523, 40 
 Am. Rep. 479. "Anything which signifies the 
 intention of the grantor to part with bis con- 
 trol or dominion over the paper, so that it 
 may become a muniment of title in the gran- 
 tee, operates as a legal delivery. "With re- 
 spect to the measure of proof required, a 
 difference is recognized in the cases depend- 
 ing upon the character of the deed, whether 
 it. be voluntary or made to give effect to a 
 sale. In the former case the Intention to 
 part with the control of the deed is not pre- 
 sumed and a delivery roust be proved strict- 
 ly. . . But if tne conveyance be for 
 a valuable consideration and absolute on its 
 
 face, the Intention to consummate the con- 
 veyance by the delivery of the deed as a 
 muniment of title is inferred from the gran- 
 tor's parting with the , of it, 
 whether it be to the grantee directly or to 
 some third person — if he part with it with- 
 out any condition or reservation." Bates, 
 Ch., in Jamison v. Craven, 4 Del. Ch 
 In the absence of direct evidence, the deliv- 
 ery of a deed will be pr< from the 
 concurrent acts of the parties recognizing 
 a transfer of title; Gould v. Day, 94 
 l".-,. 24 L. Ed, 232; Turner v. Warren, 160 
 Pa. 336, 28 Atl. 7S1 ; Williams v. Wi, 
 148 111. 426, 36 N. B. 104. So long as a 
 is within the control and subject to the 
 dominion of the grantor, there is no deliv- 
 ery, without which there can be no i 
 Byars v. Spencer, 103 111. 429, 40 Am. uep. 
 212; Lang v. Smith. ::i w. V*a. 725, 17 s. 
 E. 213. The possession of a deed by the 
 grantee therein, is prima /"• nee of 
 iis delivery ; Campbell v. Carrutl;. :.J Ida. 
 264, 13 south. 432; McClellan v. Zwing 
 Hun 600, 24 X. Y. Supp. 371; Lewis v. Wat- 
 son, 98 Ala. 479, 13 South. 570, 22 L. It. A. 
 297, 39 Am. si. Rep. 82. The deed of a cor- 
 poration was said to be delivered by affixing 
 the corporate seal; Co. Lift. 22, n., 36, n. ; 
 Cro. Eliz. 167; 2 Rolle, Ahr. Fait (I); L. R, 
 2 H. L. 296. 
 
 It may be made by an agent as well 
 the grantor himself; Hatch v. Hatch, 9 
 307, 6 Am. Dec. GT ; Belden v. Carter, 4 Day 
 (Conn.) 66, 4 Am. Dec. 185; 5 B. & C. 'J71 ; 
 or to an agent previously appointed; West 
 em R. Corp. v. Babcock. 6 Mete. (M 
 or subsequently recognized; Turner v. Whid- 
 den, 22 Me. 121; Shirley's Lessee v. Ayres, 
 14 Ohio, 307, 45 Am. Dec. 54G ; but a sub- 
 sequent assent on the part of the grantee 
 will not be presumed; llulick v. ScoviL 4 
 Oilman (111.) 177; I v. Pinkham, 1 
 
 N. H. 353; Church v. Gilman, 15 We; 
 Y.) 65<;. 30 Am. Dec. 82. Where a fal 
 purchasing land has the deed executed in 
 the name of his minor son, the delivery of 
 the deed to the father is sufficient delivery 
 to the son; Hall v. Hall, 107 Mo. 101, 17 
 S. W. 811. 
 
 The delivery of a deed to a third person 
 for the grantee's benefit, followed Py an as- 
 sertion of title by the granl 
 delivery; Haennl v. Bleisch, l ic in. 2 
 X. E. 153; as is also >u<h a delivery where 
 the third person is to be custodian, but 
 where the deed is not to go into force until 
 after the grantor's death; Campbell v. Mor- 
 gan, GS Hun 490, 22 X. Y. Supp. 1001. 
 
 The cases holding that a deed delivered 
 to a third person to take effect on the death 
 of the grantor is valid are collected by Mr. 
 Jones in his work on Real Property, vol. 2, 
 § 1234; see also Wittenbrock v. Cass, 110 
 Cal. l. 12 Pac 300; Gish v. Brown, 171 Pa. 
 479, 33 Atl. 60; Laker v. Baker, 159 111.
 
 DELIVERY 
 
 828 
 
 DELIVERY 
 
 394, 42 N. E. 867; Benzler v. Rieckhoff, 97 
 la. 75, 66 N. W. 147; Haeg v. Haeg, 53 
 Minn. 33, 55 N. W. 1114; Hutton v. Cramer, 
 10 Ariz. 110, 85 Pac. 483, 103 Pac. 497; and 
 there are authorities which uphold such 
 transfers even though the grantor reserves 
 a right to recall the deed at any time be- 
 fore his death, provided he does not do so; 
 Belden v. Carter, 4 Day (Conn.) 66, 4 Am. 
 Dec. 185; but it is held that these cases 
 are indefensible on principle, and that such 
 a transaction is testamentary; Arnegaard v. 
 Arnegaard, 7 N. D. 475, 75 N. W. 797, 41 
 L. R. A. 258 ; Phelps v. Pratt, 225 111. 85, 80 
 N. E. 69, 9 L. R. A. (N. S.) 945. Actual 
 delivery passes title, and such title Is there- 
 after as much beyond the control of the 
 grantor as though he had never owned the 
 land; id.; Arnegaard v. Arnegaard* 7 N. D. 
 475, 75 N. W. 797, 41 L. R. A. 258, citing 
 Connard v. Colgan, 55 la. 538, 8 N. W. 351 ; 
 Seibel v. Rapp, 85 Va. 28, 6 S. E. 478; 
 Douglas v. West, 140 111. 455, 31 N. E. 405. 
 For this reason it has been held that the 
 declarations of the grantor subsequent to 
 an alleged delivery are not competent to Im- 
 peach it. If he has in fact transferred the 
 title, he cannot, by his unsworn declarations 
 made in his own interest, in effect lay the 
 foundation for securing a restoration of the 
 title without the act or even consent of the 
 grantee ; Bury v. Young, 98 Cal. 446, 33 Pac. 
 338, 35 Am. St. Rep. 186 ; Blight v. Schenck, 
 10 Pa. 285, 51 Am. Dec. 478. 
 
 When the maker of a deed parts with the 
 possession of it to anybody, there is a pre- 
 sumption that it was delivered ; and it is for 
 the maker to show that it was delivered in 
 escrow; Robbins v. Rascoe, 120 N. C. 79, 26 
 S. E. 807, 38 L. R. A. 238, 58 Am. St. Rep. 
 774. As to delivery to a third person to 
 take effect on the grantor's death, some of 
 the cases proceed on the theory that the fee 
 does not pass to the grantee until the deliv- 
 ery of the deed to him, and that then his 
 title relates back to the original delivery. 
 But the better rule is said to be that the 
 deed is immediately operative as against the 
 grantor, and that the condition that delivery 
 to the grantee shall not be made until after 
 the grantor's death is equivalent to the res- 
 ervation of a life estate in his favor in the 
 land itself; Arnegaard v. Arnegaard, 7 N. 
 D. 475, 75 N. W. 797, 41 L. R. A. 258. In 
 Taft v. Taft, 59 Mich. 185, 26 N. W. 426, 60 
 Am. Rep. 291, it is said a deed of convey- 
 ance in present terms is inconsistent with 
 the retention of a life estate, and from the 
 time when the deed is delivered as a con- 
 veyance the whole title goes with it and be- 
 comes irrevocable. 
 
 To complete a delivery, acceptance must 
 take place, which may be presumed from 
 the grantee's possession ; Clarke v. Ray, 1 
 Har. & J. (Md.) 319; Ward v. Lewis, 4 Pick. 
 (Mass.) 518; Canning v. Pinkham, 1 N. H. 
 353; Southern Life Ins. & Trust Co. r. Cole, 
 
 4 Fla. 359; Pitts v. Sheriff, 108 Mo. 110, 18 
 S. W. 1071; from the relationship of a per- 
 son holding the deed to the grantee; Bryan 
 v. Wash, 2 Gilman (111.) 557; Souverbye v. 
 Arden, 1 Johns. Ch. (N. Y.) 240; Methodist 
 Episcopal Church v. Jaques, 1 Johns. Ch. 
 (N. Y.) 456; and from other circumstances; 
 Merrills v. Swift, 18 Conn. 257, 46 Am. Dec. 
 315 ; McKinney v. Rhoads, 5 Watts (Pa.) 343. 
 The execution and recording of a deed, and 
 delivery of it to the register for that pur- 
 pose, do not vest the title in the grantee; 
 he must first ratify these acts; Younge v. 
 Guilbeau, 3 Wall. (U. S.) 636, 18 L. Ed. 262 ; 
 Maynard v. Maynard, 10 Mass. 456, 6 Am. 
 Dec. 146; Hutton v. Smith, 88 la. 238, 55 
 N. W. 326; but see Glaze v. Ins. Co., 87 
 Mich. 349, 49 N. W. 595; but they are prima 
 facie evidence of delivery; Kille v. Ege, 79 
 Pa. 15; Davis v. Garrett, 91 Tenn. 147, 18 
 S. W. 113: Fenton v. Miller, 94 Mich. 204, 
 53 N. W. 957 ; Knox t. Clark, 15 Colo. App. 
 356, 62 Pac. 334. 
 
 Ratification of the Recording of an Un- 
 delivered Deed. An undelivered deed wrong- 
 fully recorded passes no title ; Calhoun Coun- 
 ty v. Emigrant Co., 93 U. S. 124, 23 L. Ed. 
 826 ; Gulf Coal & Coke Co. v. Coal & Coke 
 Co., 145 Ala. 228, 40 South. 397; Everts v. 
 Agnes, 6 Wis. 453; Smith v. Bank, 32 Vt. 
 341, 76 Am. Dec. 179 ; but a deed secured by 
 the grantee and placed on record without 
 delivery may be ratified by the grantor by 
 treating the property as belonging to the 
 grantee, and inducing him to assert title 
 under the belief that he has the title; 
 Phelps v. Pratt, 225 111. 85, 80 N. E. 69, 9 
 L. R. A. (N. S.) 945; such a delivery was 
 held to have been ratified by the grantor 
 where he had notice of the recording and 
 remained quiet for several years; McNulty 
 v. McNulty, 47 Kan. 208, 27 Pac. 819; Pitt- 
 man v. Sofley, 64 111. 155; and where he re- 
 ceived and retained the purchase money or a 
 portion thereof; Harkness v. Cleaves, 113 
 la. 140, 84 N. W. 1033 ; and where the gran- 
 tor assents to the grantee's raising money 
 to be secured by a mortgage upon the prop- 
 erty; Lyman v. Smith, 4 Lack. Leg. News 
 (Pa.) 207 ; to the same effect, Mays v. Shields, 
 117 Ga. 814, 45 S. E. 68, where it is said 
 the grantor cannot recognize the grantee's 
 possession as valid for some purposes, and 
 disclaim it for others; and to the same ef- 
 fect, Dixon v. Bank, 102 Ga. 461, 31 S. E. 
 96, 66 Am. St. Rep. 193. 
 
 Negligence by the grantor of an undeliver- 
 ed deed in keeping it in a place to which 
 the grantee had access will not estop him 
 from denying its validity as against a pur- 
 chaser in good faith from the grantee, where 
 the latter surreptitiously abstracted the deed 
 and recorded it ; Garner v. Risinger, 35 Tex. 
 Civ. App. 378, 81 S. W. 343 ; Tisher v. Beck 
 with, 30 Wis. 55, 11 Am. Rep. 546. It has 
 been held that nothing short of an explicit 
 ratification by the grantor of the delivery, or
 
 DELIVERY 
 
 829 
 
 DELIVERY 
 
 such acquiescence after full knowledge of 
 the facts as would raise a presumption of 
 an express ratification, could give the deed 
 vitality; Iladlock v. Hadlock, 22 II! 
 And it has been held that failure of succes- 
 sors in title to one whose undelivered deed 
 to real estate has been recorded by the gran- 
 tee to bring suit to remove it from the rec- 
 ord will not estop them from denying the 
 title of a stranger who purchases the prop- 
 erty in reliance upon the record ; Gulf Coal 
 & Coke Co. v. Coal & Coke Co., 145 Ala. 228, 
 40 South. 397. 
 
 See 14 Harv. L. Rev. 456; Assent. 
 
 There can ordinarily be but one valid de- 
 livery; Verplank v. Sterry, 12 Johns. (N. Y.) 
 536, 7 Am. Dec. 348; which can take place 
 only after complete execution ; McKee v. 
 Hicks, 13 N. C. 379; Moelle v. Sherwood, 
 148 U. S. 21, 13 Sup. Ct. 426, 37 L. Ed. 350. 
 But there must be one; Stiles v. Brown, 16 
 Vt. 563; 2 Washb. R. P. 581; and from that 
 one the deed takes effect; Geiss v. Oden- 
 heimer, 4 Yeates (Pa.) 278, 2 Am. Dec. 407; 
 Cutts v. Mfg. Co., 18 Me. 190. Elsey v. 
 Metcalf, 1 Denio (N. Y.) 323. Where the 
 date of acknowledgment of a mortgage dif- 
 fered from its date, delivery will be of the 
 former date, in the absence of any evidence ; 
 Guaranty Trust Co. of New York v. R. Co., 
 107 Fed. 311, 46 C. C. A. 305. 
 
 See Escrow , Record ; Deed. 
 
 In Contracts. The transfer of the posses- 
 sion of a thing from one person to another. 
 
 Originally, delivery was a clear and un- 
 equivocal act of giving possession, accom- 
 plished by placing the subject to be trans- 
 ferred in the hands of the transferree or his 
 agent, or in their respective warehouses, ves- 
 sels, carts, and the like ; but in modern times 
 it is frequently symbolical, as by delivery 
 of the key to a room containing goods; 
 Wilkes v. Ferris, 5 Johns. (N. Y.) 335, 4 Am. 
 Dec. 364; Leedom v. Philips, 1 Yeates (Pa.) 
 529; 2 Ves. Sen. 445; see, also, 7 East 558; 
 8 B. & P. 233; Debinson v. Emmons, 158 
 Mass. 592, 33 N. E. 706; by marking timber 
 on a wharf, or goods in a warehouse, or by 
 separating and weighing or measuring them; 
 Barney v. Brown, 2 Vt. 374, 19 Am. Dec. 
 720 ; Hurff v. Hires, 40 N. J. L. 581, 29 Am. 
 Rep. 282 ; Farmers' Phosphate Co. v. Gill, 69 
 Md. 537, 16 Atl. 214, 1 L. R. A. 767, 9 Am. 
 St. Rep. 443 ; or otherwise constructive, as 
 by the delivery of a part for the whole ; 
 Chamberlain v. Farr, 23 Vt. 265; Leggett v. 
 Rogers, 9 Barb. (N. Y.) 416; Packard v. 
 Dunsmore, 11 Cush. (Mass.) 2S2 ; Vining v. 
 Gilbreth, 39 Me. 496 ; 3 B. & P. 69. And see, 
 as to what constitutes a delivery ; President, 
 etc., of Portland Bank v. Stacey, 4 Mass. 661, 
 3 Am. Dec. 253; Burrows v. Whitaker, 71 
 N. Y. 291, 27 Am. Rep. 42; Gravett v. Mugge, 
 89 111. 218; Thomas' Adm'r v. Lewis, 89 Ya. 
 1, 15 S. E. 3S9, 18 L. R. A. 170, 37 Am. St. 
 Rep. 848; Deming v. Cotton-Press Co., 90 
 Tenn. 306, 17 S. W. 89, 13 L. R. A. 51S; 
 
 Brewster v. Reel. 74 la. 506, 38 N. W. 381; 
 [1892] 1 Q. B. 582. 
 
 Where goods are ordered by a f< : 
 merchant, the title i ry to 
 
 a carrier for shipment, subject only t>> the 
 right of stoppage In tran i; Philadelphia 
 it B. R. Co. v. Wireman, 98 Pa. 261; Smith 
 v. Edwards, 156 Mass. 221, L017; 
 
 Seaman v. Adler, 37 Fed. 2fl in v. 
 
 McGary, 117 Ind. 132, 19 N. E. 731; 
 Nat Bank v. McAndrews, 7 Mont 160, 11 
 I'ac. 763; Meyer Bros. Drug Co. v. McMahon, 
 60 Mo. App. is; Foley v. Felrath, 98 Ala. 
 176, 13 South. 485, 39 Am. St. Bep. 39. 
 Prima facie proof of delivery is made out by 
 proof of delivery to a carrier; Brod v. Dfer- 
 ing, 139 111. App. 107; but such is not a de- 
 livery to the vendee where he dies before 
 they reach their destination; Smith v. I 
 nan, 62 Mich. 349, 28 N. W. 892, 4 Am. St. 
 Rep. 867. Where the vendor takes the bill 
 of lading deliverable to the order of him- 
 self, or of his agent, it prevents the proper- 
 ty from passing to the intended vendee until 
 delivery; Berger v. state, 50 Ark. 20, 6 S. 
 W. 15; Blackb. Sales 130. 
 
 Delivery is not necessary at common law 
 to complete a sale of personal property as 
 between the vendor and vendee; BenJ. 
 § 315; as a sale passes title as soon as the 
 bargain is struck without any delivery or 
 payment; Briggs v. U. S., 143 U. S. 346, 12 
 Sup. Ct. 391, 36 L. Ed. 180; but as against 
 third parties possession retained by the ven- 
 dor raises a presumption of fraud conclusive 
 according to some authorities; Hamilton v. 
 Russell, 1 Cra. (U. S.) 309, 2 L. Ed. 118; 
 Alexander v. Deneale, 2 Munf. (Ya.) 341; 
 Hudnal v. Wilder, 4 McCord (S. C.) 294, 17 
 Am. Dec. 744 ; Ragau v. Kennedy, 1 Ov. 
 (Tenn.) 91; Jarvis v. Davis, 14 B. Monr. 
 (Ky.) 533, 61 Am. Dec. 166 ; Bowman v. Her- 
 ring, 4 Harr. (Del.) 458; Thornton v. Daven- 
 port, 1 Scam. (111.) 296, 29 Am. Dee. 358; 
 Chumar v. Wood, 6 N. J. L. 155; Patten v. 
 Smith. 5 Conn. 196; Wilson v. II. toper, 12 
 Vt. 653, 36 Am. Dec. 366; Gibson v. Love. 
 4 Fla. 219; Sturtevant v. Ballard, 9 Johns. 
 (N. Y.) 337, 6 Am. Dec, 281; 1 Campb. 332; 
 Gould v. Hunlley, 73 Cal. 399, 15 Pae 24; 
 Freedman v. Mfg. Co., 122 Pa. 25, 15 Atl. 
 690; others holding it merely Btrong evi- 
 dence of fraud to be left to the jury ; 3 B. 
 & C. 368; Land v. Jeffries. 5 Band. (Va.) 
 211; Terry v. Belcher, 1 Hail. is. C 
 ('alien v. Thompson, 3 Yerg. (Tenn.) 475 24 
 Am. Dec. 587; Hundley v. Webb, .•: J. J. 
 Marsh. (Ky.) 643, 20 Am. Dee. 189; Thomp- 
 son v. Blanchard, 4 X. V. 303; Griswold v. 
 Sheldon, id. 5S1 ; Marden v. Babcock, -' 
 Mete. (Mass.) 99; Cutter v. Copeland, 18 
 Me. 127: Krwin v. Bank. 5 La. Ann. 1; Bry- 
 ant v. Kelton, 1 Tex. 415; but delivery is 
 necessary, in general, where the property iu 
 goods is to be transferred in pursuance of 
 a previous contract; 1 Taunt. 318; Bean v. 
 Simpson, 16 Me. 49; and also in case of
 
 DELIVERY 
 
 830 
 
 DELIVERY 
 
 a donatio causa mortis; Wells v. Tucker, 3 
 Binn. (Pa.) 370; 2 Ves. Ch. 120; 9 id. 1; 
 Daniel v. Smith, 64 Cal. 346, 30 Pac. 575 ; 
 Debinson v. Emmons, 158 Mass. 592, 33 N. 
 E. 706; Kirk v. McCusker, 3 Misc. 277, 22 
 N. Y. Supp. 780. To give validity to a gift, 
 there must be such a delivery of the subject 
 thereof as works an immediate change in 
 the dominion of the property; Gartside v. 
 Pahlman, 45 Mo. App. 160. The rules re- 
 quiring actual full delivery are subject to 
 modification in the case of bulky articles; 
 Girard v. Taggart, 5 S. & R. (Pa.) 19, 9 Am. 
 Dec. 327; Bean v. Simpson, 16 Me. 49. See, 
 also, Bailey v. Ogdens, 3 Johns. (N. Y.) 399, 
 3 Am. Dec. 509 ; De Ridder v. McKnight, 13 
 Johns. (N. Y.) 294 ; Dutilh v. Ritchie, 1 Dall. 
 (U. S.) 171, 1 L. Ed. S6; Currier v. Currier, 
 2 N. H. 75, 9 Am. Dec. 43 ; Smith v. Wheeler, 
 7 Or. 49, 33 Am. Rep. 69S; Billingsley v. 
 White, 59 Pa. 464; 2 Kent 508; Bailment; 
 Sale ; C. O. D. ; Place of Delivery. 
 
 The word delivery is used in different 
 senses, which should be borne in mind in 
 considering the cases. Sometimes it denotes 
 transfer of the property in the chattel and 
 sometimes transfer of the possession of the 
 chattel. When used in the latter sense it 
 may refer either to the formation of the 
 contract, or to the performance of it. When 
 it refers to the delivery of possession in 
 the performance of the contract, the buyer 
 is sometimes spoken of as being in posses- 
 sion although he has only the right of pos- 
 session, while the actual custody remains 
 with the vendor. 
 
 . A condition requiring delivery may be an- 
 nexed as a part of any contract of transfer ; 
 Savage Mfg. Co. v. Armstrong, 19 Me. 147. 
 
 In the absence of contract, the amount of 
 transportation to be performed by the seller 
 to constitute delivery is determined by gen- 
 eral usage. 
 
 The delivery of a contract in writing is 
 necessary to its validity ; Ligon v. Wharton 
 (Tex.) 120 S. W. 930. 
 
 See Escrow. 
 
 In Medical Jurisprudence. The act of a 
 woman giving birth to her offspring. 
 
 Pretended delivery may present itself In three 
 points of view. First, when the female who feigns 
 has never been pregnant. When thoroughly inves- 
 tigated, this may always be detected. There are 
 signs which must be present and cannot be feigned. 
 An enlargement of the orifice of the uterus, and a 
 tumefaction of the organs of generation, should 
 always be present, and if absent are conclusive 
 against the fact. 2 Annales d'Hygiene, 227. Second, 
 when the pretended pregnancy and delivery have 
 been preceded by one or more deliveries. In this 
 case attention should be given to the following cir- 
 cumstances: the mystery, if any, which has been 
 affected with regard to the situation of the female ; 
 her age ; that of her husband ; and, particularly, 
 whether aged or decrepit. Third, when the woman 
 has been actually delivered, and substitutes a living 
 for a dead child. But little evidence can be obtained 
 on this subject from a physical examination. 
 
 Concealed delivery generally takes place when the 
 woman either has destroyed her offspring or it was 
 born dead. In suspected cases the following cir- 
 
 cumstances should be attended to: First, the proof a 
 of pregnancy which arise in consequence of the ex- 
 amination of the mother. When she has been preg- 
 nant, and has been delivered, the usual signs of 
 delivery, mentioned below, will be present. A care- 
 ful investigation as to the woman's appearance 
 before and since the delivery will have some weight ; 
 though such evidence is not always to be relied up- 
 on, as such appearances are not unfrequently de- 
 ceptive. Second, the proofs of recent delivery. 
 Third, the connection between the supposed state of 
 parturition and the state of the child that is found ; 
 for if the age of the child do not correspond to that 
 time, it will be a strong circumstance in favor of 
 the mother's innocence. A redness of the skin and 
 an attachment of the umbilical cord to -the navel in- 
 dicate a recent birth. Whether the child was living 
 at its birth, belongs to the subject of infanticide. 
 
 The usual signs of delivery are very well collected 
 in Beck's excellent treatise on Medical Jurispru- 
 dence, and are here extracted: 
 
 If the female be examined within three or four 
 days after the occurrence of delivery, the following 
 circumstances will generally be observed: greater 
 or less weakness, a slight paleness of the face, th» 
 eye a little sunken and surrounded by a purplish or 
 dark-brown colored ring, and a whiteness of tha 
 skin like that of a person convalescing from disease. 
 The belly is soft, the skin of the abdomen is lax, 
 lies in folds, and is traversed in various directions 
 by shining reddish and whitish lines, which especial- 
 ly extend from the groin and pubes to the navel. 
 These lines have sometimes been termed linea albi-- 
 cantes, and are particularly observed near the 
 umbilical region, where the abdomen has experi- 
 enced the greatest distension. The breasts become 
 tumid and hard, and, on pressure, emit a fluid which 
 at first is serous and afterwards gradually becomes 
 whiter. The areolae round the nipples are dark 
 colored. The external genital organs and vagina 
 are dilated and tumefied throughout the whole of 
 their extent, from the pressure of the foetus. The 
 uterus may be felt through the abdominal parietes, 
 voluminous, firm, and globular, and rising nearly aa 
 high as the umbilicus. Its orifice is soft and tumid, 
 and dilated so as to admit two or more fingers. The 
 fourchette, or anterior margin of the perinaeum, is 
 sometimes torn, or it is lax, and appears to have 
 suffered considerable distension. A discharge (term- 
 ed the lochial) commences from the uterus, which 
 is distinguished from the menses by its pale color, 
 its peculiar and well-known smell, and its duration. 
 The lochia are at first of a red color, and gradu- 
 ally become lighter until they cease. 
 
 These signs may generally be relied upon as indi- 
 cating recent delivery: yet it requires much ex- 
 perience in order not to be deceived by appearances. 
 
 The lochial discharge might be mistaken for men- 
 struation, or leucorrhea, were it not for its peculiar 
 smell ; though this is not absolutely characteristic. 
 
 Relaxation of the soft parts arises as frequently 
 from menstruation as from delivery ; but in these 
 cases the os uteri and vagina are not so much 
 tumefied, nor is there that tenderness and swelling. 
 The parts are found pale and flabby when all signs 
 of contusion disappear, after delivery, and this cir- 
 cumstance does not follow menstruation. 
 
 The presence of milk, though a usual sign of 
 delivery, is not always to be relied upon ; for this 
 secretion may take place independent of pregnancy. 
 
 The wrinkles and relaxations of the abdomen 
 which follow delivery may be the consequence of 
 dropsy, or of lankness following great obesity. This 
 state of the parts is also seldom striking after the 
 birth of the first child, as they shortly resume their 
 natural state. Positive proof of the occurrence of 
 birth is furnished only by the discovery of parts of 
 the ovum. In most cases the demonstration by the 
 microscope of shreds of the decidual with large, 
 nucleated and fatty cells is of itself a sure proof; 
 Winckle, quoted by Witthaus & Becker. 
 
 See, generally, 1 Beck, Med. Jur. c. 7, p. 206 ; 1 
 Chit. Med. Jur. 411 ; Ryan, Med. Jur. c. 10, p. 133 ; 
 1 Briand, Med. Leg. Here partie, c 5 ; Whart. & S. ; 
 Witthaus & Becker, Med. Jur.
 
 DELIVERY BOND 
 
 831 
 
 DELUSION 
 
 DELIVERY BOND. An obligation for the 
 return of goods or the payment of their 
 value, taken into the possession of the law, 
 as in seizures under revenue laws. Douglass 
 v. Douglass, 21 Wall. (U. S.) 98, 22 L. Ed. 
 479; Krippendorf v. Hyde, 110 U. s 
 4 Sup. Ct. 27, 28 L. Kd. 145. See Forth- 
 coming Bond. 
 
 DELIVERY ORDER. An order by the 
 owner of goods to a person holding them on 
 his behalf, requesting him to deliver them 
 to a person named in the order. Such au or- 
 der is not a document of title and therefore 
 does not transfer the property or divest the 
 vendor's lien for the purchase money until 
 the holder obtains actual delivery, the issue 
 of a dock warrant in his name, or an entry 
 of his title in the wharfinger's books. 2 11. L. 
 Cas. 3(i!t; 5 Ch. D. 195. 
 
 DELUSION. In Medical Jurisprudence. A 
 perversion of the judgment, obviously er- 
 roneous and persistent. A symptom of men- 
 tal disease, in which persons believe things 
 to exist which exist only, or in the degree 
 they are conceived of only, iu their own 
 imaginations, with a persuasion so fixed ami 
 firm that neither evidence nor argument can 
 convince them to the contrary. A faulty be- 
 lief concerning a subject capable of physical 
 demonstration, out of which the person 
 cannot be reasoned by adequate means for 
 the time being. 1 Wood, American Text 
 Book of Med. See Hallucination. 
 
 The individual is, of course, insane. For 
 example, should a parent unjustly persist, 
 without the least ground, in attributing to 
 his daughter a coarse vice, and use her with 
 uniform unkindness, there not being the 
 slightest pretence or color of reason for the 
 supposition, a just inference of insanity or 
 delusion would arise in the minds of a jury ; 
 because a supposition long entertained and 
 persisted in, after argument to the con- 
 trary, and against the natural affections of 
 a parent, suggest that he must labor under 
 some morbid mental delusion; Whart. Or. L. 
 | 37; Whart. & S. Med. Jur.; 1 Redf. Wills; 
 Ray, Med. Jur. § 20 ; Shelf. Lun. 29G ; 3 Add. 
 Eccl. 70, 90, 180; 1 Hagg. Eccl. 27. See 
 Guiteau's Case, 10 Fed. 170; Maun, Med. 
 Jur. of Insan. 58. 
 
 Where one "labors under a partial delu- 
 sion only, and is not in other respects in- 
 sane, we think he must be considered in the 
 same situation as to responsibility as if the 
 facts with respect to which the delusion ex- 
 ists were real. For example, if under the 
 influence of his delusion he supposes another 
 man to be in the act of attempting to take 
 away his life, and he kills that man, as he 
 supposes, in self-defence, he would be ex- 
 empt from punishment." This is the rule 
 as stated by the English judges, cited in 1 
 Whart. Cr. L. § 37. Shaw, C. J., in Com. 
 y. Rogers, 7 Mete. (Mass.) 500, 41 Am. Dec. 
 458, says: "Monomania may operate as an 
 
 excuse for a criminal act," when "the delu- 
 sion is such that ti under its in- 
 fluence has a real and linn belief of som? 
 fact, not true in Itself, but which, if it were 
 true, would excuse his act : as where the 
 belief is that the party Billed had an im- 
 mediate design upon bis r that 
 belief tin' Insane man kills in 
 defence. A common Instance 
 fully believes that the acl he I done 
 by the Immediate comma i. and be 
 acts bnder the delusive but 
 that what h.- is doing is by the comnu 
 a superior power, which sup H hu- 
 man laws and the laws of nature." 
 
 Where a testator was laboring und 
 delusion that his brother was exer 
 muscle preparatory to billing him. ti 
 itself would not justify a r. .f his 
 
 will on the ground of unsound i ilnd; In re 
 Fricke, G4 Hun <;::'.>. 19 N. Y. Bupp. 31! 
 person persistently believing facts 
 
 which have no real st all 
 
 evidence and probability, and conducting 
 
 if on the assumption of their • 
 ence, is. so far as such facts are concerned, 
 under an Insane delusion; Haines v. Hayden, 
 95 Mich. 332, ~A N. W. 911, 35 Am. St. Bep. 
 5G6. 
 
 See Paranoia. 
 
 DEMAIN. See Demi sxn. 
 
 DEMAND. A claim; a legal obligation. 
 
 Demand is a term of art of an extent 
 er in its signification than any other 
 word except claim. Co. I-itt. 291; In re 
 Denny, 2 Hill (N. Y.) 220; Scott v. Mor- 
 ris, 9 S. & R. (Pa.) 124; Murphys Appeal, G 
 W. & S. (Pa.) L'L'G. 
 
 A release of all demands is, in general, a 
 release of all covenants, real or personal, 
 Conditions, whether broken or not, annui- 
 ties, recognizances, obligations, contracts, 
 and the like; In re Denny, •_' Hill (N. V.) 220; 
 but does not discharge rent before it is 
 due, if it be a rent incident to trie reversion; 
 for the rent was not only not due, but the 
 consideration — the future enjoyment of the 
 lands — for which the rent was to be given 
 was not executed: 1 Lev. W; I'.ac. Abr. R< - 
 lease, I. See 10 Co. 128; Bordman v. Os- 
 born, 23 Pick. (Mass.) 295; Martin v. Mar- 
 tin. 7 Md. 375, 'il Am. Dec ."'<'<!; Favors v. 
 Johnson, in Qa. 555, 4 S. F. :>•_•;,. 
 
 In Practice. A requisition or request to 
 do a particular thing specified onder a claim 
 of right on the part of the person requesting. 
 
 In causes of action arising ex contractu 
 it is frequently necessary, t" enable plaintiff 
 to bring an action, that he should make 
 a demand upon the party bound to perform 
 the contract or di 'he obligation. 
 
 Thus, where property is sold to be paid for 
 on delivery, a demand must be made before 
 bringing an action for non-delivery, and prov- 
 ed on trial : 5 Term 40'J: 3 M. & W. 254; Lit- 
 tle v. Banks, 67 Hun 505, 22 N. Y. Supp.
 
 DEMAND 
 
 832 
 
 DEMAND 
 
 512; but not if the seller has incapacitated 
 himself from delivering; 5 B. & Aid. 712; 
 Wilmouth v. Patton, 2 Bibb (Ky.) 280; Bob- 
 bins v. Luce, 4 Mass. 474 ; and this rule and 
 exception apply to contracts for marriage; 
 2 Dowl. & R. 55; 1 Chit Pr. 57, note (n), 
 438, note (e). Nor is a demand necessary 
 where it is to be presumed that it would 
 have been unavailing; Davenport v. Ladd, 
 38 Minn. 545, 38 N. W. 622; Bogle v. Gor- 
 don, 39 Kan. 31, 17 Pac. 857. Where a 
 selling price has been agreed on, the bring- 
 ing of a suit therefor is a sufficient demand 
 for the money claimed; Maguire v. Durant, 
 1 Misc. 509, 20 N. Y. Supp. 017. A demand 
 of rent is necessary before re-entry for non- 
 payment; Parks v. Hays, 92 Tenn. 161, 22 
 S. W. 3. But where rent is payable on the 
 first day of the month, no demand of the 
 rent on the day it falls due is necessary to 
 entitle the landlord to maintain an action 
 therefor; Clarke v. Charter, 128 Mass. 483. 
 See Re-entby. No demand is in general 
 necessary on a promissory note before bring- 
 ing an action; but after a tender demand 
 must be made of the sum tendered ; 1 Uampb. 
 181, 474; 1 Stark. 323. A note payable "on 
 call" may be sued on without demand; Mo- 
 bile Sav. Bank v. McDonnell, S3 Ala. 595, 4 
 South. 346 ; but a demand and notice of 
 non-payment are essential to fix the liabili- 
 ty of endorsers unless waived ; Presbrey 
 v. Thomas, 1 App. D. C. 171. Where a 
 mortgagor has resolved to default on an 
 interest coupon and provides no funds to 
 pay it, the holder is not required to pre- 
 sent it for payment before bringing suit ; 
 Conshohocken Tube Co. v. Equipment Co., 
 161 Pa. 391, 28 Atl. 1119. 
 
 Cases in which a demand was held neces- 
 sary before action were suits upon a part- 
 nership ; Codman v. Rogers, 10 Pick. 112 ; 
 moneys received but not accounted for by 
 an attorney to his client; Sheaf v. Dodge, 
 161 Ind. 270, 68 N. E. 292 ; Banner v. D'Au- 
 by, 34 Misc. 525, 69 N. Y. Supp. 891; Mad- 
 den v. Watts, 59 S. C. 81, 37 S. E. 209; Tay- 
 lor y. Bates, 5 Cow. (N. Y.) 376; Sneed v. 
 Hanley, Hemp. 659, Fed. Cas. No. 13,136; 
 moneys received by a corporation officer not 
 accounted for; Landis v. Saxton, 105 Mo. 
 486, 16 S. W. 912, 24 Am. St. Rep. 403 ; claim 
 of reinstatement in a body from which one 
 was illegally expelled; Meherin v. Produce 
 Exchange, 117 Cal. 215, 48 Pac. 1074 ; money 
 realized by a sheriff on execution but not 
 paid over; Keithler v. Foster, 22 Ohio St. 
 27; a certificate of deposit issued by a bank 
 which by its terms was payable on its re- 
 turn properly endorsed ; Elliott v. Bank, 128 
 la. 275, 103 N. W. 777, 1 L. R. A. (N. S.) 
 1130, 111 Am. St. Rep. 198; Hillsinger v. 
 Bank, 108 Ga. 357, 33 S. E. 985, 75 Am. St. 
 Rep. 42 ; but in another case it was held 
 that action would lie without demand on 
 a certificate of deposit; McGough v. Jamison, 
 107 Pa. 336. See Elliott v. Bank, 1 L, R. A. 
 
 (N. S.) 1130, n. A demand is also required 
 before action to recover a deposit in a bank ; 
 Johnson v. Bank, 1 Harring. (Del.) 117; 
 Sickles v. Herold, 149 N. Y. 332, 43 N. E. 
 852 ; Tobias v. Morris, 126 Ala. 535, 28 South. 
 517. 
 
 A demand is not necessary before suit for 
 rent, whether payable in money in advance; 
 Clarke v. Charter, 128 Mass. 483 ; or in labor 
 or property payable at a fixed time and 
 place; Packer v. Cockayne, 3 G. Greene (la.) 
 Ill ; and in a suit for rent the demand need 
 not be proved even where pleaded; Gruhn v. 
 Gudebrod Bros. Co., 21 Misc. 528, 47 N. Y. 
 Supp. 714; for articles charged on land de- 
 vised to and accepted by residuary devisee; 
 Wiggin v. Wiggin, 43 N. H. 561, 80 Am. 
 Dec. 192; for boarding a man under a con- 
 tract; Chappell v. Woods, 9 Wash. 134, 37 
 Pac. 2S6 ; for fees of an attorney; Foster v. 
 Newbrough, 66 Barb. (N. Y.) 645; Gibbs v. 
 Davis, 11 Or. 2S8, 3 Pac. 677; but in New 
 Jersey the rendering of an account is a con- 
 dition precedent to a suit ; Truitt v. Darnell, 
 65 N. J. Eq. 221, 55 Atl. 692. 
 
 In cases arising ex delicto, a demand is 
 frequently necessary. Thus, when the wife, 
 apprentice, or servant of one person has 
 been harbored by another, the proper course 
 is to make a demand of restoration before 
 an action brought, in order to constitute the 
 party a wilful wrong-doer unless the plain- 
 tiff can prove an original illegal enticing 
 away; 2 Lev. 63; 5 East 39; 4 J. B. Moo. 12. 
 
 So, too, in cases where the taking of goods 
 is lawful but their subsequent detention be- 
 comes illegal, it is absolutely necessary, in 
 order to secure sufficient evidence of a con- 
 version on the trial, to give a formal notice 
 of the owner's right to the property and pos- 
 session, and to make a formal demand in 
 writing of the delivery of such possession to 
 the owner. See Trover; Conversion. And 
 when a nuisance has been erected or con- 
 tinued by a man on his own land, it is ad- 
 visable, particularly in the case of a private 
 nuisance, to give tbe party notice, and re- 
 quest him to remove it, either before an en- 
 try is made for the purpose of abating it or 
 an action is commenced against the wrong- 
 doer; and a demand is always indispensable 
 in cases of a continuance of a nuisance orig- 
 inally created by another person; 2 B. & C 
 302; Cro. Jac. 555; Poll. Torts 314; 5 Co. 
 100; 5 Viner, Abr. 506; 1 Ayliffe, Pand. 497; 
 Bac. Abr. Rent, I. 
 
 In cases of contempts, as where an order 
 to pay money or to do any other thing, has 
 been made a rule of court, a demand for the 
 payment of the money or performance of 
 the thing must be made before an attach- 
 ment will be issued for a contempt; 1 Cr. 
 M. & R. 88, 459; 4 Tyrwh. 369; 2 Scott 193. 
 
 Demand should be made by the party hav- 
 ing the right, or his authorized agent; 2 B. 
 & P. 464 a; West v. Tupper, 1 Bail. (S. C). 
 193 ; Watt v. Potter, 2 Mas. 77, Fed. Cas. No.
 
 DEMAND 
 
 833 
 
 DEMKXTTA 
 
 17,291 ; Clough v. Unity, 18 N. H. 75; Sebrell 
 v. Couch, 55 Ind. 122; of the person in de- 
 fault, in cases of torts; 8 B. & C. 528; Shot- 
 well v. Few, 7 Johns. (N. Y.) 302; Bridgeport 
 Bank v. R. Co., 30 Conn. 237; in ca 
 rent; 2 Washb. R. P. 321 and at a proper 
 time and place in case of rents; Jackson v. 
 Kipp, 3 Wend. (X. Y.) 230; Jackson v. Harri- 
 son, 17 Johns. (N. Y.) GO; McMurphy v. 
 . 4 X. it. 251; Mackubin v. Whetcroft,' 
 4 Harr. & M.ll. (Md.) L35; Bradstreet v. 
 Clark, 21 Pick. (Mass.) 389; Pay V. Shanks, 
 56 Ind. 554; in cases of notes and hills of 
 exchange; Pars. Notes & B. 
 
 As to the allegation of a demand in a dec- 
 laration, see 1 Chit. PI. 322; 2 id. 84; 1 Wins. 
 Saund. 33, note 2; Bunn v. Lett, 65 Hun 43, 
 19 N. Y. Supp. 72S; Com. Dig. Pleader. 
 
 DEMAND IN RECONVENTION. A de- 
 mand which the defendant institutes in con- 
 sequence of that which the plaintiff has 
 brought against him. Used in Louisiana. 
 La. Pr. Code, art. 374. 
 
 DEMANDANT. The plaintiff or party 
 who brings a real action. Co. Litt. 127; 
 Com. Dig. See Real Action. 
 
 DEM ENS (Lat.). Dement. One who has 
 lost his mind through illness or some other 
 cause. One whose faculties are enfeebled. 
 Dean, Med. Jur. 4S1. See Dementia. 
 
 DEMENTIA. In Medical Jurisprudence. 
 
 Thai form of insanity which is characterized 
 by mental weakness and decrepitude, and by 
 total inability to reason correctly or incor- 
 rectly. 
 
 Memory is lost; language la Incoherent; actions 
 are inconsistent. The thoughts succeed one another 
 without any obvious bond of association. Delusions, 
 If they exist, are transitory, and leave no permanent 
 impression: and for everything recent the memory 
 Is exceedingly weak. In mania, the action of the 
 mind is marked by force, hurry, and intensity ; in 
 dementia, by slowness and weakness. It is the 
 natural termination of many forms of insanity. 
 Occasionally it occurs in an acute form in young 
 subjects ; and here only it is curable. In old men, 
 in whom it often occurs, it is called senile dementia, 
 and it indicates the breaking down of the mental 
 powers in advance of tbe bodily decay. Here we 
 may find memory of conditions long since past and 
 some mental power. It is this form of dementia 
 only which gives rise to litigation ; for in the others 
 the incompetency is too patent to admit of question. 
 It cannot be described by any positive characters, 
 because it differs in the different stages of its prog- 
 ress, varying from simple lapse of memory to com- 
 plete inability to recognize persons or things. And 
 it must be borne in mind that often the mental in- 
 firmity is not so serious as might be supposed at 
 first sight. Many an old man who seems to be 
 Bcarcely conscious of what is passing around him, 
 and is guilty of frequent breaches of decorum, needs 
 only to have his attention aroused to a matter in 
 which he is deeply interested, to show no lack of 
 vigor or acuteness. In other words, the mind may 
 be damaged superficially (to use a figure), while it 
 may be sound at the core. And therefore it is that 
 one may be quite oblivious of names and dates, 
 while comprehending perfectly well his relations to 
 others and the interests in which he was concerned. 
 It follows that the impressions made upon casual or 
 ignorant observers in regard to the mental condition 
 are of far less value than those made upon persons 
 
 Bouv.— 53 
 
 who have been well acquainted with his habits and 
 have had occasion to test the vigor of his fac . 
 
 Senile dementia or the imbecility caused 
 by the decay of "id age Is often the ground 
 on which the wills of "Id men are eont, 
 and the conllieting testimony of 
 the proofs of foreign Influence, and t! 
 dlcations of mental capacity all combine to 
 render it no easy task to arrive at a 
 factory conclusion. The only general rule 
 of much practical value is tl. 
 must he always measured, not by any fan- 
 cied standard of intellect, hut S"lcly by the 
 requirements of the act in question. A small 
 and familiar matter would require less men- 
 tal power than one complicated in its details 
 and somewhat new to the testator's expe- 
 rience. Less capacity would he m 
 distribute an estate between a wife and 
 child than between a multitude of relatives 
 with unequal claims upon his bounty. Such 
 is the principle; and the ends of j 
 cannot be better served than by its correct 
 and faithful application. Of course, there 
 will always be more or less difficulty; but 
 generally by discarding all legal and meta- 
 physical subtleties and following the leading 
 of common sense, it will be satisfactorily 
 surmounted. 
 
 The legal principles by which the courts 
 are governed are not essentially different 
 
 whether the mental incapacity pro< d from 
 
 dcin, id ia or mania. If the will coincides 
 with the previously expressed wishes of the 
 testator, if it recognizes the claims of those 
 who stood in near relation to him. if it 
 shows no indication of undue influence. — if. 
 in short, it is a rational act rationally done. 
 — it will he established though there may 
 have been considerable impairment of mind. 
 2 Phill. Eccl. 449; Harrison v. Rowan, '■'< 
 Wash. C. C. 580, Fed. Cas. No. 6,141; Den- 
 nett v. Dennett. 11 X. II. 531, 84 Am. Dec. 
 !•?; Taylor v. Pegram, 151 111. 106, ".7 N. E. 
 837; Blough v. Parry, 111 Ind. 463, 40 N, B. 
 70. 43 X. B. 560; Pluck v. Rea, 51 X. J. Eq. 
 233, 27 Atl. 636; Matter of Misc. 
 
 l!)!)'. 25 X. Y. Supp. 109; Matter "f Pike's 
 Will. 83 Hun 327, 31 X. V. Supp. 689; Tay- 
 lor v. Trich, 165 Pa. 586, 30 Atl. in.-,:;. 1 1 
 Am. St. Rep. 679. 
 
 This species of dementia is also frequently 
 1 and proved as a ground of inn 
 ing deeds. This particular form of mental 
 disease may result either in total UlC ipe- 
 
 tency, such as is produced by any term of 
 insanity, or a greatly defective capacity, 
 though shori Of total insanity, in which the 
 Court scrutinizes the act. and sustains it 
 only when there is found to have been capac- 
 ity sufficient Cor the act in question and en- 
 tire freedom of will. Consequently such 
 cases usually include the two elements of 
 ,1 Incompetency of some degree and 
 undue Influence; and probably a majority 
 of the eases In which the aid of equity is 
 sought to set aside deeds on the ground of
 
 DEMENTIA 
 
 834 
 
 DEMESNE 
 
 undue influence involve also the question of 
 the existence of senile dementia to a greater 
 or less extent. The principle upon which 
 courts of equity deal with this class of per- 
 sons is neither as a matter of course to af- 
 firm or avoid their acts, but to protect them 
 in the exercise of such capacity as they have. 
 It will scrutinize their transactions; consid- 
 ering the nature of the act done, the induce- 
 ments leading to it, and the attending cir- 
 cumstances and influences. If the conscience 
 of the court is satisfied that such a grantor 
 comprehended the nature and consequences 
 of the transaction, and exercised a deliberate 
 and free judgment, it will be sustained; but 
 if the nature of the act or the attending 
 circumstances justify the conclusion that 
 the grantor's weakness has been taken ad- 
 vantage of, the deed will be set aside in 
 equity however valid it might be at law; 1 
 Bro. Ch. 560; 1 Knapp 73; Cruise v. Chris- 
 topher's Adm'r, 5 Dana (Ky.) 181; Wilson 
 v. Oldham, 12 B. Monr. (Ky.) 55; Tracy v. 
 Sacket, 1 Ohio St. 54, 59 Am. Dec. 610; 
 Gass v. Mason, 4 Sneed (Tenn.) 497. "It 
 may be stated as settled law, that whenever 
 there is great weakness of mind in a person 
 executing a conveyance of law, arising from 
 age, sickness, or any other cause, though 
 not amounting to absolute disqualification, 
 and the consideration given for the property 
 is grossly inadequate — a court of equity will 
 . . . interfere and set the conveyance 
 aside;" Allore v. Jewell, 94 U. S. 511, 24 
 L. Ed. 260; 1 Sto. Eq. Jur. § 238; Bisph. Eq. 
 288. For a thorough examination and dis- 
 cussion of the subject in a case of senile de- 
 mentia in which a deed was set aside, see 
 Jones v. Thompson, 5 Del. Ch. 374. In that 
 case . Saulsbury, Ch., thus stated the prin- 
 ciple upon which courts of equity deal with 
 such cases : "In cases of alleged mental 
 incapacity, the test is whether the party 
 had the ability to comprehend in a reason- 
 able manner the nature of the affair in which 
 he participated. This is the rule in the ab- 
 sence of fraud. . . . This ability so to 
 comprehend necessarily implies the power to 
 understand the character, legal conditions, 
 and effect of the act performed. . . . 
 The cause of mental weakness is immaterial. 
 It may arise from injury to the mind, tem- 
 porary illness, or excessive old age. In such 
 cases any unfairness will be promptly re- 
 dressed." In a very similar case a deed was 
 set aside on the ground of mental incapacity 
 of the grantor by reason of senile dementia 
 or dotage, by Bland, Ch., whose opinion con- 
 tains an elaborate discussion of the different 
 species of dementia, which he classifies as, 
 Idiocy, Delirium, Lunacy, and Dotage, un- 
 der which latter term he describes senile de- 
 mentia. 
 
 See Insanity. 
 
 DEMESNE (Lat. dominicum). Lands of 
 which the lord had the absolute property or 
 ownership; as distinguished from feudal 
 
 lands, which he held of a superior. 2 Bla. 
 Com. 104 ; Cowell. Lands which the lord 
 retained under his immediate control, for 
 the purpose of supplying his table and the 
 immediate needs of his household; distin- 
 guished from that farmed out to tenants, 
 called among the Saxons oordlands. Blount; 
 Co. Litt. 17 a. ■ 
 
 Own ; original. Son assault demesne, his 
 (the plaintiff's) original assault, or assault in 
 the first place. 2 Greenl. Ev. § 633 ; 3 Bla. 
 Com. 120, 306. 
 
 DEMESNE AS OF FEE. A man is said to 
 be seised in his demesne as of fee of a cor- 
 poreal inheritance, because he has a prop- 
 erty dominicum or demesne in the thing it- 
 self. 2 Bla. Com. 106. But when he has no 
 dominion in the thing itself, as in the case 
 of an incorporeal hereditament, he is said 
 to be seised as of fee, and not in his demesne 
 as of fee ; Littleton § i0 ; Barnet v. Ihrie, 17 
 S. & R. (Pa.) 196 ; Jones, Land Tit. 166. 
 
 Formerly it was the practice in an action 
 on the case — e. g. for a nuisance to real es- 
 tate — to aver in the declaration the seisin of 
 the plaintiff in demesne as of fee ; and this 
 is still necessary, in order to estop the rec- 
 ord with the land, so that it may run with 
 or attend the title ; Archb. Civ. PI. 104 ; Co. 
 Entr. 9, pi. 8; 1 Saund. 346. But such an 
 action may be maintained on the possession 
 as well as on the seisin; although the effect 
 of the record in this case upon the title 
 would not be the same; Steph. PI. 322; 4 
 Term 718 ; 2 Wms. Saund. 113 o; Cro. Car. 
 500, 575. 
 
 DEMESNE LANDS. A phrase meaning 
 the same as demesne. 
 
 DEMESNE LANDS OF THE CROWN. 
 
 That share of lands reserved to the crown 
 at the original distribution of landed prop- 
 erty, or which came to it afterwards by for- 
 feiture or otherwise. 1 Bla. Com. 286; 2 
 Steph. Com. 550. 
 
 DEMIDIETAS. A word used in ancient 
 records for a moiety, or one-half. 
 
 DEMI- MARK. A sum of money (6s. 8d., 
 3 Bla. Com. App. v.) tendered and paid into 
 court in certain cases in the trial of a writ 
 of right by the grand assize. Co. Litt. 294 o; 
 Booth, Real Act. 98. 
 
 It was paid by the tenant to obtain an in- 
 quiry by the grand assize into the time of 
 the demandant's seisin; 1 Reeve, Hist. Eng. 
 Law 429; Stearns, Real Act. 378. It com- 
 pelled the demandant to begin; 3 Chit. PI. 
 1373. It is unknown in American practice ; 
 Bradstreet v. Supervisors of Oneida County, 
 13 Wend. (N. Y.) 546. 
 
 DEMI-VILL. Half a tithing. 
 
 DEMISE. A conveyance, either in fee, for 
 life, or for years. 
 
 A lease or a conveyance for a term of 
 years. According to Chief Justice Gibson,
 
 DEMISE 
 
 835 
 
 DKM"NNTKATIO 
 
 the English word demise, though improperly 
 used as a synonym for conccssi or d< 
 strictly denotes a posthumous grant, ami no 
 more. Hemphill v. Eckfeldt, 5 Whart (Pa.) 
 278. See 4 Bingh. N. 0. 678; Voorhees v. 
 Presbyterian Church, 5 How. 1'r. (N. V.i 71. 
 Other words may he used; 18 L. Q. 'i- ■"■■"• s - 
 
 in a conveyance, the word "demise" im- 
 ports in law a covenant for quiet enjoyment; 
 Crouch v. Fowle, X. II. 219, 32 Am. Dec. 
 330; 1 M. G. & S. 4i".>; it Implies a power to 
 . Grannis v. Clark, 8 Cow. (N, Y.) 36. 
 See O'Connor v. Daily, 109 Mass. 2::.~>; Cov- 
 enant. As to the covenants implied, see 
 [1895] 1 Q. B. 820. 
 
 See Demise of the Crown. 
 
 DEMISE OF THE CROWN. The natural 
 dissolution of the king. 
 
 The term is said to denote in law merely 
 a transfer of the property of the crown. 1 
 Bla. Coin. 249. By demise of the crown we 
 mean only that, in consequence of the dis- 
 union of the king's natural body from his 
 body politic, the kingdom is transferred or 
 demised to his successor, and so the royal 
 dignity remains perpetual. Plowd. 117, 234. 
 
 A similar result, viz.: the perpetual and 
 continuous existence of the office of presi- 
 dent of the United States, has been secured 
 by the constitution and subsequent statutes. 
 1. Sharsw. Bla. Com. 249. 
 
 DEMISE AND RE-DEMISE. An old form 
 of conveyance by mutual leases made from 
 one to another on each side of the same land, 
 or of something issuing from it. A lease for 
 a given sum — usually a mere nominal amount 
 — and a release for a larger rent Toullier ; 
 Whishaw; Jacob. 
 
 DEMOCRACY. That form of government 
 in which the people rule- 
 But the multitude cannot actually rule: an unor- 
 ganic democracy, therefore, one that is not founded 
 upon a number of institutions each endowed with a 
 degree of self-government, naturally becomes a one- 
 man government. The basis of the democracy Is 
 equality, as that of the aristocracy is privilege; but 
 equality of itself is no guarantee for liberty, nor 
 does equality constitutes liberty. Absolute democ- 
 racies existed in antiquity and the middle ages: 
 they have never endured for any length of time. 
 On their character, Aristotle's Politics may be read 
 to the greatest advantage. Lieber, In his Civil 
 Liberty, dwells at length on the fact that mere 
 equality, without institutions of various kinds, is ad- 
 verse to self-government ; and history shows that 
 absolute democracy is anything rather than a con- 
 vertible term for liberty. See Absolutism ; Gov- 
 ernment. 
 
 DEMOLISH. To destre>y totally or to com- 
 mence the work of total destruction with the 
 purpose of completing the same. 50 L. J. M. 
 C. 141. 
 
 DEMONETIZE. To divest of the cha racter 
 of standard money; to withdraw from use 
 as currency. Stand. Diet. 
 
 DEM0NSTRATI0 (I/at). Descrii 4 ion ; ad- 
 dition ; denomination. Occurring often in 
 the phrase falsa demonstratio nun nocet ta 
 
 false description does not harm). 2 Bla. 
 Com. 382, n. ; 2 P. Wins. 140; 1 Greeul. Ev. 
 § 291; Wigr. Wills ! 
 
 DEMONSTRATION (Lat. <!■ 
 I,, int out). Whatever i- said or written to 
 designate a thing or person. 
 
 Several descriptions may !"• employ* 
 denote the same person or 
 rule of law in such that if o 
 
 the descriptions he erroneous it maj 
 jected, if, after it is expun gh will 
 
 remain to identify the person or thing in- 
 tended, for falsa demonstratio n<>n nocet. 
 The meaning of this rule is, that if there be 
 an adequate description witli convenient cer- 
 tainty of what was contemplated, a sul 
 quent erroneous addition will not vitiate it. 
 The complement of this maxim is. non accipi 
 debent verba in demonstrationem falsom <, 
 competent in Umitationem veram; which 
 ins that if it stand douhtful upon the 
 words whether they Import a false ret', 
 or demonstration, or whether they he words 
 of restraint that limit the generality of the 
 former words, the law will never intend er- 
 ror or falsehood. If, therefore, there is 
 some object wherein all the demonstrations 
 are true, and some wherein part are true and 
 part false, they shall be intended words of 
 true limitation to ascertain that person or 
 thing whereof all the circumstances are true; 
 4 Bxch. 604; 8 Bingh. 244; Broom, L. Max. 
 490; Pettis v. Kellogg, 7 Cush. (Mass.) 460. 
 Parol and extrinsh e for the con- 
 
 struction of wills misdescribing the sn 
 of the devise is admitted. Its office is to en- 
 able a court to reject whatever part of the 
 description is false; Fairfield v. I^w- 
 Conn. 501, IT Am. Bop. 669; Doe v. Roe, 1 
 Wend. (X. Y.) 541; Benham v. Hendrickson, 
 32 N. J. Bq. 141 : Ro • v. Hale. 1S5 Ii : 
 56 N. B. 1073, To Am. St. Rep. 40; Fitzpat- 
 rick v. Fitzpatrick, 36 la. 674, 14 An, 
 53S; Wales v. Tern] B3 Mich. ITT. 1. 
 
 X. w. •-'.".s: Seebrock v. Fedawa, ••'.•". Neb. 41-".. 
 50 X. W. 270, L".» Am. St. Rep. 488; hut not 
 where there is a property which every part 
 of the description tits; 1G C. B. X. S. 
 nor where the will contains no langUl 
 connect the description in such devise with 
 any land of the testator; id: Lomax \ 
 max, 218 HI. 629, 75 X. B. 1076, L. R. A. 
 (X. S.) «.tlU. 
 
 The rule that falsa demonstratio docs not 
 vitiate an otherwise good description applies 
 ry kind of statement of fact. Some of 
 the particulars of an averment in a declara- 
 tion may he rejected if the declaration is 
 le without them and by their presence 
 de insensible or defective ; Yelv. 182. 
 In Evidence. That proof which o.v 
 all possibility of error. 
 
 nstruiiic evidence of negligence has 
 been applied to that kind of negligence which 
 is usually expressed by res ipsa loquitur 
 (which see). See Evioence.
 
 DEMONSTRATIVE LEGACY 
 
 836 
 
 DEMURRAGE 
 
 DEMONSTRATIVE LEGACY. A pecunia- 
 ry legacy coupled with a direction that it be 
 paid out of a specific fund. 
 
 A bequest of a sum of money payable out 
 of a particular fund or thing. A pecuniary 
 legacy given generally, but with a demonstra- 
 tion of a particular fund as the source of 
 its payment. Roquet v. Eldridge, 118 Ind. 
 147, 20 N. E. 733; Glass v. Dunn, 17 Ohio 
 St. 413. See Harper v. Bibb, 47 Ala. 547; 
 Kunkel v. Macgill, 56 Md. 120. 
 
 Such a bequest differs from a specific leg- 
 acy in this, that if the fund out of which 
 it is payable fails for any cause, it is never- 
 theless entitled "to come on the estate as a 
 general legacy; and it differs from a gen- 
 eral legacy in this, that it does not abate in 
 that class, but in the class of specific lega- 
 cies," Armstrong's Appeal, 63 Pa. 312, per 
 Sharswood, J. A bequest of "$2,000 of the 
 South Ward Loan of Chester," where the 
 testator owned $10,000 of the loan at the 
 date of the will, which was paid off before 
 death, was held demonstrative; Ives v. Can- 
 by, 48 Fed. 718. So, also, "25 shares of cap- 
 ital stock of the State Bank," etc., the tes- 
 tator owning 25 shares ; Davis v. Cain's 
 Ex'r, 36 N. C. 309; had the testator said 
 "my" 25 shares, it would have been a spe- 
 cific legacy ; id. So of a gift of 25% canal 
 shares of which the testator owned 15%, all 
 of which he sold before his death ; 2 Beav. 
 515. The criterion in all the cases is wheth- 
 er it was the testator's intention to give the 
 specific security then owned by him, or, on 
 the other hand, to give nothing distinctly 
 severed from his estate, but rather such a 
 sum as would suffice to buy the securities 
 named; id. See 2 White & T. Lead. Cas. 
 646 ; 2 Y. & C. 90 ; Newton v. Stanley, 28 N. 
 Y. 61; Dryden v. Owings, 49 Md. 356. 
 
 DEMPSTER. In Scotch Law. A dooms- 
 man. One who pronounced the sentence of 
 court. 1 Howell, St. Tr. 937. 
 
 DEMURRAGE. The delay of a vessel by 
 the freighter beyond the time allowed for 
 loading, unloading, or sailing. 
 
 Payment for such delay. 
 
 The amount due by the freighter or char- 
 terer to the owner of the vessel for such de- 
 lay. 5 E. & B. 755; Abb. Adm. Dec. 548; 
 Gronn v. Woodruff, 19 Fed. 144. 
 
 Demurrage may become due either by the 
 ship's detention for the purpose of loading 
 or unloading the cargo, either before or dur- 
 ing or after the voyage, or in waiting for 
 convoy ; 3 Kent 159 ; Van Etten v. Newton, 
 134 N. Y. 143, 31 N. E. 334, 30 Am. St. Rep. 
 630; Donaldson v. McDowell, 1 Holmes 290, 
 Fed. Cas. No. 3,985; Creighton v. Dilks, 49 
 Fed. 107 ; Porter, Bills of L. 356. 
 
 Where neither the charter nor the bill of 
 lading contained any provisions as to de- 
 murrage, and the master made no formal 
 protest against the delay, but signed the bill 
 of lading without objection and did not bring 
 
 suit until long after, demurrage could not 
 be recovered ; McKeen v. Morse, 49 Fed. 253, 
 1 C. C. A. 237; Gage v. Morse, 12 Allen 
 (Mass.) 410, 90 Am. Dec. 155; and it is said 
 the English authorities are uniformly against 
 such a liability ; id. 5 El. & B. 755, 589 ; 10 
 C. B. N. S. 802. Here the courts have not 
 generally followed the English rule. It is 
 held that maritime demurrage may be col- 
 lected, even though not provided for in the 
 contract, and that a lien on the cargo for 
 demurrage may be enforced ; Donaldson v. 
 McDowell, Fed. Cas. No. 3.9S5 ; The Hyperi- 
 on's Cargo, id. 6,9S7; 275 Tons of Mineral 
 Phosphates, 9 Fed. 209; Hawgood v. 1,310, 
 Tons of Coal, 21 Fed. 681 ; and in England it 
 is held that a lien for demurrage may be giv- 
 en by contract; L. R. 8 Exch. 101; L, R, 15 
 Q. B. Div. 247. 
 
 Under the terms of a charter where de- 
 murrage was to be paid for each working 
 day beyond the days allowed for loading, the 
 time lost by reason of storms before the be- 
 ginning of the lay days, or after their ex- 
 piration, could not be deducted in computing 
 the demurrage; Wold v. Keyser, 52 Fed. 
 169, 2 C. C. A. 656. 
 
 The term "working days" in maritime af- 
 fairs means calendar days, on which the law 
 permits work to be done, and excludes Sun- 
 days and legal holidays, but not stormy days ; 
 Sorensen v. Keyser, 52 Fed. 163, 2 C. C. A. 
 650. But see Baldwin v. Timber Co., 142 N. 
 Y. 279, 36 N. E. 1060, where it was held that 
 Sundays are properly included in computing 
 demurrage, when demurrage has begun to 
 run. Where there are no agreed demurrage 
 days for loading the case is one of implied 
 contract to load with reasonable diligence; 
 Randall v. Sprague, 74 Fed. 247, 21 C. C. A 
 334. 
 
 Where a charter party excepted delays by 
 strikes, it was held to apply to the charter- 
 er's own workmen ; Wood v. Keyser, 84 Fed. 
 688; but not to a strike of coal operators 
 which overtaxed the capacity of the harbor 
 and caused delay; W. K. Niver Coal Co. v. 
 S. S. Co., 142 Fed. 402, 73 C. C. A. 502, 5 L. 
 R. A. (N. S.) 126. 
 
 Demurrage, though a maritime term, has 
 been adopted in railroad practice. A rail- 
 road company may charge $2 a day for the 
 detention of cars after 24 hours, as a gen- 
 eral rule of the company known to con- 
 signees; Miller v. .Mansfield, 112 Mass. 260; 
 so in Norfolk & W. R. Co. v. Adams, 90 Va. 
 393, 18 S. E. 673, 22 L. R. A. 530, 44 Am. St 
 Rep. 916, where it was said to be not a trans- 
 portation, nor storage, nor terminal charge, 
 but a charge by the carrier as bailee of the 
 goods after its duties as a carrier had ceas- 
 ed. Where a statute gives a lien for freight 
 and storage, the lien extends to demurrage 
 charges; New Orleans & N. E. R. Co. v. 
 George, 82 Miss. 710, 35 South. 193. A lien 
 was upheld in Southern R. Co. v. Mfg. Co., 
 142 Ala. 322, 37 South. 667, 68 L. R. A. 227.
 
 DEMURRAGE 
 
 837 
 
 DEMURRHR 
 
 110 Am. St. Rep. 32, 4 Ann. Cas. 12; Dar- 
 lington v. R. Co., 90 Mo. App. 1. 72 S. W. 
 122; Schumacher v. R. Co., 207 111. LI 
 N. E. 825. It is held, however, that a < 
 has no Lien ; Xicolette Lumber Co. v. Coal 
 Co., 213 Pa, 379, 62 Atl. 1000, 3 L. K. A. (N. 
 S.) 327, no Am. St Rep. 550, 5 Ann 
 Wallace v. R. Co., 216 Pa. 311, 65 Atl. 665. 
 A state cannot enacl that a consignee shall 
 have 3 days to unload and as many w 
 he chi -i a day; Pennsylvania R, Co. 
 
 v. M. O. Coggins Co., 38 Pa. Super. Ct 129. 
 See 3 L. R. A. (N. S.) 327, n. See Lay 
 Days; Lir.v 
 
 DEMURRER (Lat. demorori, Old Fr. dc- 
 morrer, to stay; to abide). In Pleading. An 
 allegation, that, admitting the facts of the 
 preceding pleading to be true, as stated by 
 the party making it, he has yet shown no 
 cause why the party demurring should be 
 compelled by the court to proceed further. 
 A declaration that the party demurring will 
 go no further, because the other has shown 
 nothing against him. 5 Mod. 232; Co. Litt 
 71 b. It imports that the objecting party 
 will not proceed, but will wait the judgment 
 of the court whether he is bound so to do. 
 Co. Litt. 71 b; Steph. PI. 61; Pepper, PI. 11. 
 In Equity. An allegation of a defendant, 
 which, admitting the matters of fact alleged 
 by the bill to be true, shows that as therein 
 set forth they are insufficient for the plain- 
 tiff to proceed upon, or to oblige the defend- 
 ant to answer ; or that, for some reason ap- 
 parent on the face of the bill, or on account 
 of the omission of some matter which ought 
 to be contained therein, or for want of some 
 circumstances which ought to be attendant 
 thereon, the defendant ought not to be com- 
 pelled to answer to the whole bill, or to some 
 certain part thereof. Mitf. Eq. PI. 107. 
 
 A demurrer was said to be an answer in 
 law to a bill, though not technically an an- 
 swer in the common language of practice ; 
 New Jersey v. New York, G Pet. (TI. S.) 323, 
 8 L. Ed. 414. The purpose of a demurrer 
 being to raise the question whether the case 
 presented by the bill would, if proved, en- 
 title the plaintiff to the relief sought, it nec- 
 essarily proceeds upon the theory that the 
 truth of the bill is admitted. It is therefore 
 settled that all facts well pleaded in the bill, 
 but no others, are taken to be true, for the 
 purposes of the argument and decision upon 
 the demurrer; Commercial Bank v. Buck- 
 ner, 20 How. (U. S.) 108, L5 L. Ed. 862; Griff- 
 ing v. Gibb, 2 Black (U. S.) 519, 17 L. Ed. 
 353; Goble V. Andruss, 2 N. J. Eq. GG ; 1 
 Ves. Jr. 72; 1 Dan. Ch. Pr. 545. It does 
 not admit conclusions of law stated in the 
 bill; Bryan v. Spruill, 57 N. C. 27; Fogg v. 
 Blair, 139 U. S. US, 11 Sup. Ct. 470, :>5 L. 
 Ed. 104; nor can it supply defects in sub- 
 stance, nor cure a defective title, nor yet 
 establish one defectively set forth; Mills v. 
 Brown, 2 Scam. (111.) 549 ; nor does it admit 
 
 any allegations repugnant to facts of which 
 the court takes judicial notice; 1 Dan. Ch. 
 Pr. 5 P'> ; i-'ii- a fa< I .. i i : gaily Im- 
 
 possible; Louisville & X. 1;. Co. v. Palnv 
 100 U. S. 244, • 
 nor an averment i 
 
 forth in the bill ; v. 
 
 i dckerson, 9 N. J. I 59 Am. I 1 
 
 nor inferences of other , at- 
 
 ed; Dike v. Greene, 4 B. i. 285; aor the 
 construction of a statute; Pennie v. R< 
 L32 I . S. 4G4, 10 Sup. Ct 140, 33 L. Ed 
 nor of any instrument set forth in or an- 
 nexed to the bill ; Dillon v. Barnard, 21 WalL 
 (U. S.) 430, 22 L. Ed. 673; Into ind 
 
 Co. v. Land Grant Co., L39 D. 8. 569, 11 Sup. 
 Ct. 656, 35 L. Ed. 278; Lea v. Robeson, 12 
 Gray (Mass.) 280; Dillon v. Barnard, l 
 Holmes 389, Fed. Cas. No. 3,915; O. S. v. 
 Ames, 99 U. S. 35, 25 D. Ed, 295. It admits 
 only facts well pleaded, but not the conclu- 
 sions of law, nor the correctness of the plead- 
 er's opinion as to future re .uitable 
 Life Assur. Soc. v. Brown, 213 I*. S. 26, 29 
 Sup. Ct. 404, 53 L. Ed. 6S2 ; as a rule of 
 evidence it was never supposed that a de- 
 murrer admitted anything; Havens V. R. 
 Co., 28 Conn. 69. 
 
 As a rule these limitations upon the effect 
 of a demurrer in equity, as admissions, apply 
 equally at law. 
 
 Allegations on information and belief are 
 not admitted by a demurrer to be facts ; Trim- 
 ble v. Sugar Refining Co., Gl N. J. Eq. 340, 48 
 Atl. 912; 1 Ves. 56; 5 Beav. 020; Bto. Eq. 
 PI. §§ 241, 25G; Cameron v. Abbott, 30 Ala. 
 416; but in a subsequent case it was held 
 that, although the averment that complain- 
 ant is informed and believes that the fact 
 exists is insufficient, he may state the exist- 
 ence of the fact with the additional words 
 "as he is informed and believes": Luc 
 Oliver, 34 Ala. 62G ; and see also Christian 
 v. Mortgage Co., 92 Ala. 130, 9 South. 219 
 and Drennen v. Deposil Co., 115 Ala. 592, 23 
 South. 104, 39 L. R. A. 623, 07 Am. St 
 72. An allegation that the complainant "is 
 informed and believes, and therefore •'• 
 is sufficient; Wells v. Hydraulic Co., 30 
 Conn. 316, 70 Am. Dec 250; and so Is an al- 
 legation that he is Informed and bellevi 
 fact to be true, followed by a statement that 
 he therefore charges the fact to be true, 
 where it r< lated to matter necessarily with- 
 in the knowledge Of the defendant ; Campbell 
 v. R. Co.. 71 111. 011. 
 
 In Kansas v. Colorado, 1S5 U. 8, 12 
 Sup. Ct. 552, 46 L. Ed. 838, the court said 
 that "sitting, as It i ' ttonal, 
 
 as well as a domestic tribunal" they were 
 "unwilling in this case to p on the 
 
 mere technical admissions made by the de- 
 murrer," and they accordingly overruled it 
 without prejudice and forebore to proceed 
 until all the facts were before the court on 
 the evidence.
 
 DEMURRER 
 
 838 
 
 DEMURRER 
 
 By Federal Equity Rule 29, 33 Sup. Ct. 
 xxvi (in effect February 1, 1913), demurrers 
 (and pleas) are abolished ; every defence in 
 law shall be made by motion to dismiss or in 
 the answer ; every such point of law going 
 to the whole or a material part of the cause 
 of action may be disposed of before final 
 hearing at the discretion of the court. 
 
 A demurrer may be either to the relief 
 asked by the bill, or to both the relief and 
 the discovery; Iliginbotham v. Burnet, 5 
 Johns. Ch. (N. Y.) 1S4 ; Brownell v. Curtis, 
 10 Paige Ch. (N. Y.) 210 ; but not to the dis- 
 covery alone where it is merely incidental to 
 the relief ; 2 Bro. C. C. 123 ; 1 Y. & C. 197 ; 
 1 S. & S. 83. It is said by Langdell (Eq. PI. 
 60) that every proper demurrer is to relief 
 alone; and that while it always, if well 
 taken, protects the defendant from giving 
 any discovery, that is a legal consequence 
 merely. As to exceptions to avoid self-crim- 
 ination, see Sharp v. Sharp, 3 Johns. Ch. (N. 
 Y.) 407 ; Patterson v. Patterson, 2 N. C. 167 ; 
 Wolf v. Wolf's Ex'r, 2 H. & G. (Md.) 382, 18 
 Am. Dec 313. If it goes to the whole of 
 the relief, it generally defeats the discovery 
 if successful; '2 Bro. C. C. 319; Souza v. 
 Belcher, 3 Edw. Ch. (N. Y.) 117; Miller v. 
 Ford, 1 N. J. Eq. 358; Welles v. R. Co., Walk. 
 Ch. (Mich.) 35; Pool v. Lloyd, 5 Mete. (Mass.) 
 525 ; otherwise, if to part only ; Ad. Eq. 331 ; 
 Story, Eq. PI. § 545 ; Brownell v. Curtis, 10 
 Paige, Ch. (N. Y.) 210. 
 
 It may be brought either to original or 
 supplemental bills; and there are peculiar 
 causes of demurrer in the different classes 
 of supplemental bills ; 2 Madd. 3S7 ; 4 Sim. 
 76; 3 Hare, 476; 3 P. Wms. 2S4 ; Dias v. 
 Merle, 4 Paige Ch. (N. Y.) 259; Field v. 
 Schieffelin, 7 Johns. Ch. (N. Y.) 250; Whit- 
 ing v. Bank, 13 Pet. (U. S.) 6, 14, 10 L. Ed. 
 33 r Story, Eq. PI. § 611. 
 
 Demurrers are general, where no particular 
 cause is assigned except the usual formulary 
 that there is no equity in the bill, or special, 
 where the particular defects are pointed out ; 
 Story, Eq. PI. § 455 ; Dan. Ch. Pr. 586. Gen- 
 eral demurrers are used to point out defects 
 of substance ; special, to point out defects in 
 form. "The terms have a different meaning 
 [in equity] from what they have at common 
 law;" Langd. Eq. PI. 58. 
 
 The defendant may demur to part of the 
 bill ; Whitbeck v. Edgar, 2 Barb. Ch. (N. Y.) 
 106 ; and plead or answer to the residue, or 
 both plead and answer to separate parts 
 thereof; 3 P. Wms. 80; Clark v. Phelps, 6 
 Johns. Ch. (N. Y.) 214; Bull v. aiell, 4 Wis. 
 54; taking care so to apply them to different 
 and distinct parts of the bill that each may 
 be consistent with the others ; 3 M. & C. 653 ; 
 Gray v. Regan, 23 Miss. 304 ; Story, Eq. PI. § 
 442; but if it be to the whole bill, and a 
 part be good, the demurrer must be overrul- 
 ed ; Graves v. Hull, 27 Miss. 419 ; Barnawell 
 v. Threadgill, 40 N. C. 86 ; Burns v. Hobbs, 
 
 29 Me. 273; Robinson v. Guild, 12 Mete. 
 (Mass.) 323; Gay v< Skeen, 36 W. Va. 582, 
 15 S. E. 64. If it is to the whole bill it can- 
 not be sustained if, for any equity apparent 
 in the bill, complainants are entitled to re- 
 lief; George v. Banking Co., 101 Ala. 607, 14 
 South. 752 ; Merriam v. Pub. Co., 43 Fed. 
 450. A general demurrer to a bill must be 
 overruled unless it appears that on no pos- 
 sible state of the evidence could a decree be 
 made; Failey v. Talbee, 55 Fed. 892; Dar- 
 rah v. Boyce, 62 Mich. 480, 29 N. W. 102. 
 Demurrers lie only for matter apparent on 
 the face of the bill, and not upon any new 
 matter alleged by the defendant; Beames, 
 Ord. in Ch. 26 ; 6 Sim. 51 ; 2 Sch. & L. 637 ; 
 Southern Life Ins. & Trust Co. v. Lanier, 5 
 Fla. 110, 58 Am. Dec. 44S ; Black v. Shreeve, 
 7 N. J. Eq. 440; Hinchman v. Kelley, 54 
 Fed. 63, 4 C. C. A. 189. A demurrer which 
 alleges, as cause of demurrer, new matter, 
 in addition to what is contained in the bill, 
 is termed a speaking demurrer and must be 
 overruled; 4 Bro. C. C. 254; 4 Drew. 306; 
 Brooks v. Gibbons, 4 Paige Ch. (N. Y.) 374; 
 Ramage v. Towles, 85 Ala. 5S9, 5 South. 342 ; 
 Stewart v. Masterson, 131 U. S. 151, 9 Sup. 
 Ct. 6S2, 33 L. Ed. 114; and so also where 
 an attempt to sustain a demurrer is made by 
 the averment of some fact in an answer it is 
 of the same nature and is not aided thereby ; 
 Kuypers v. Reformed Dutch Church, 6 Paige 
 Ch. (N. Y.) 570. To constitute a speaking 
 demurrer, the averment must be necessary 
 to support the demurrer ; 2 Mol. 295 ; Sax- 
 on v. Barksdale, 4 Desaus. (S. C.) 522 ; and 
 cases supra; and not mere immaterial mat- 
 ter which, though improper as surplusage, is 
 not fatal to the demurrer, 1 Sim. 5 ; 2 Sim. 
 & Stu. 127. 
 
 The term "speaking demurrer" originated with 
 Lord Hardwicke in Brownswood v. Edwards, 2 Ves. 
 243, 245, and it was used by the reporters in the syl- 
 labi of that case and of Bdsill v. Buchanan, 4 Bro. 
 C. C. 254, nearly fifty years later. The editor of 
 Tyler's edition of Mitford, in a note to the word 
 in his index, assumes that Mitford ignored the term 
 because Lord Hardwicke had used it in ridicule and 
 not as a new technical distinction. However that 
 may be, it seems to have been too generally adopted 
 by courts and text-writers to be now disregarded as 
 an apt characterization of what it was meant to 
 express. 
 
 A defendant may at the hearing of a de- 
 murrer orally assign another cause, different 
 from or in addition to those on the record, 
 which is termed a demurrer ore tenus, and 
 may be sustained, although that on the rec- 
 ord is overruled; Brinkerhoff v. Brown, 6 
 Johns. Ch. (N. Y.) 149; Wright v. Dame, 1 
 Mete. (Mass.) 237; Chase v. Searles, 45 N. 
 H. 512; 8 Ves. 405 ; as, on demurrer to gen- 
 eral relief, the objection of non-joinder may 
 be made ore tenus; Garlick v. Strong, 3 
 Paige Ch. 440 ; 6 Ves. 779. Causes of demur- 
 rer ore tenus must be coextensive with those 
 on the record, and if the latter apply to the 
 whole bill, the former will not be allowed to 
 part of it; 1 De G., J. & S. 3S; and a cause
 
 DEMURRER 
 
 839 
 
 DEMURRER 
 
 overruled cannot be repeated ore tcnus; 1 
 Anst. 1; but see 12 \V. It. 394; nor, after 
 demurrer to tbe whole bill has been over- 
 ruled, can part of it be demurred to ore 
 tenus; 2 Yo. & J. 490; dark v. Davis, Har- 
 ring. Ch. (Mich, i 227. 
 
 Demurrers are not applicable to picas or 
 answers. If a pica or answer la bad in sub- 
 stance, it may be shown on hearing; and if 
 the answer Is Insuffii Lenl In form, exceptions 
 should be flled; Story, Eq. r 
 Langd. Eq. PI. 58; Winters v. • 
 .Miss. 341 ; Travers v. Ross, 14 X. -J. Eq. 254. 
 
 If tin- Mil contains an allegation of :. 
 it must he denied by answer r de- 
 
 fence may he adopted to other parts of the 
 bill; because fraud uives jurisdiction to the 
 court and lays a foundation for r< 
 a general demurrer to a bill containing 
 an allegation cannot lie allowed; Niles v. 
 Andersen, 5 Eow. (Mis. ) 366. 
 
 Demurrers to relief are usually brought 
 for causes relating to the jurisdiction, as 
 that the -subject is not cognizable by any 
 court, as in some cases under political trea- 
 ties; 1 Vos. 371; Foster v. Neilson, 2 Pet 
 (U. S.) 253, 7 L. Ed. 415; hut see Cherokee 
 Nation v. G 5 Pot. (U. S.) 1, 8 I.. Ed. 
 
 2.",; u. s. v. Clarke, S Pet. (U. S.) 436, 8 L, 
 Ed. 1001; Martin v. Hunter, 1 Wheat. (U. 
 S.) 304, 4 L. Ed. 97; Carneal v. Banks, 10 
 Wheat. (U. S.) 181, 6 L. Ed. 297; Gordon v. 
 Kerr, 1 Wash. C. C. 322, Fed. Cas. No. 5,611. 
 
 It is frequently said that by demurring to 
 a bill in chancery, for want of equity, the 
 defendants submit to the jurisdiction of the 
 court, as if that question were to be raised 
 it should have been presented by plea ; Bank 
 of Bellows Falls v. R. Co., 28 Vt. 470 ; 1 Atk. 
 543, where Lord Hardwicke is represented as 
 having said: "The defendant should uot 
 have demurred for want of jurisdiction, for 
 a demurrer is always in bar, and goes to the 
 merits of the case ; and therefore it is in- 
 formal and improper iu that respect, for he 
 should have pleaded to the jurisdiction." 
 Iu a note to section 450 of Sto. Eq. PI. after 
 quoting these words it is said: '"This lan- 
 guage is loose and iuaccurate. If the court 
 has no jurisdiction, the objection may be 
 taken by demurrer, if it is apparent on the 
 face of the hill; Mitf. Eq. PI. by Jeremy, 
 110, 216; 2 Sim. & Stu. 431. And a demur- 
 rer may be for causes not going to thi 
 its." This note in Sumner's edition, the Qrst 
 after Judge Story's death, appears from the 
 editor's prefatory note to be the author's 
 own comment. Such objection on demurrer 
 is allowed iu the federal courts; Ober v. 
 Gallagher, 93 U. S. 199, 23 I.. Ed. 829; Peale 
 v. Coal Co., 172 Fed. 639; but if one cause 
 assigned goes to the merits it operates as a 
 waiver of the objection to the jurisdiction ; id. 
 
 In some states, where the jurisdiction in 
 equity is more or less restricted, it Is held 
 that tbe question of jurisdiction may be 
 raised by general demurrer ; Joues v. New- 
 
 hall, 115 M ii. Rep. 97; Earle 
 
 v. Humphrey, 121 Mich, 
 
 and that it is the proper method of raising 
 it : Pennsylvania R. Co. v. B 
 
 >; Love v. !: . 213 Pa. 
 
 480, 62 Atl. 1065. 
 
 So demurrers to relief will lie in certain 
 cases of confiscation ; :; Ves. 42 1 ; 
 see Ware v. Hylton, :; Dall. (1 1L 
 
 1 !d. 568 : and questions of 
 Eq. PI. 347; 1 Ves. 446; as to law iu the 
 United States, see Massie v. \Y. 
 d'. s.i 158, " L. Ed. 181; X. 
 cut. 4 Dall. (U. S.i ::, 1 I.. EM. 715; 
 
 5 Pet (P. S.i 2f 1. 8 L. Ed. 127: 
 State v. Stat.-, II Pet. (TJ 1<> E. Ed. 
 
 423; or timt it is not cognizable by a 
 of equity; Taylor \\ Buchan, 16 Ga. 541; 
 Groves' Heirs v. Ful 57 Am. 
 
 .: 17 ; Box v. & M. 
 
 I Miss. | 93, 51 Am. Dec. 1 12; E. R. 8 Ch. App. 
 369; or that same other court of equity has 
 jurisdiction properly; Trustees of Philadel- 
 phia Baptist Ass'n v. Hart's Ex'rs, 4 v. 
 
 (U. S.) 1, 4 E. Ed. 499; Mays v. Taylor, 7 
 Ga. 21.". : 1 Ves. 2*'.". ; or tl 
 has jurisdiction properly; Bingham v. i 
 3 Dall. (U. S.t 382, 1 E. Ed. 646; Wallace 
 v. Fletcher, 30 X. IE 444; Louisville, C. & 
 C. R. Co. v. Letson, 2 Bow. (TJ. s.) 497, 11 
 L. Ed. 353; to the person, as that the plain- 
 tiff is not entitled to sue, by reason of per- 
 sonal disability, as infancy, idiocy, etc. ; 
 377; bankruptcy and assignment : l V. & C. 
 172; or has no title to sue In racter 
 
 in which he sues; 2 P. Wins. 369; Living- 
 ston v. Lynch. 4 Johns. Ch. 575; or that the 
 relief prayed is barred by limitation: 
 cantile Nat. Bank v. Carpenter, 101 D. S. 
 567, 25 L. Ed. 815; Pannelee v. Pric< 
 111. 5 14, 70 N. E. 725: Nash v. Ingalls, 101 
 Fed. 645; or a portion of it; City of Mem- 
 phis v. fable Co., 145 Fed. 602, 7<; <\ C. A. 
 292; tn the substance of the bill, as that the 
 matter is too trivial; Moore v. Lyttle, 4 
 Johns. Ch. (N. V.i 183; Carr v. [glehart, 3 
 Ohio St. 457 : 1 9; that the plaintiff 
 
 has no interest in the matter; Mitf. Eq. PL 
 154; 2 s. & s. 592; Long v. Majestre, l 
 Johns. Ch. i X. v.i 305; Baskell v. Hilton, 
 30 Me. 419; Barr v. Clayton, 2:» W. Va. 256, 
 
 I I s. E. 899 : Keysi c v. -' Va. 249, 
 12 s. k. 106; or that the defendant h 
 such interest; 2 Bro. C. «'. 332; 5 Madd. 19; 
 Wakeman v. Bailey, •". Barb. Ch. (N. v. 
 
 De Wolf v. Johnson. 10 Wheat I 1 
 t; E. Ed. 343 : or that the bill is /. i 
 
 penalty; 4 Bro. Ph. 134; to the franu and 
 form of the bill, as that there is a defect or 
 want of form; Mitf. Eq. PL 206; 5 Ru 
 Ulrid v. Papin, 11 Mo. 42; or that the hill is 
 multifarious: Story, Eq. PI. g 530, n. ; 2 
 S. & S. 79; I.ayton v. State. 4 Barring. (Pel.) 
 9; White v. Curtis. 2 Cray (Mass.) 471; 
 Oliver v. Piatt. 3 How. I P. S.) 412. 11 L. 
 Ed. 622; M -Dennett v. McGown, 4 Edw. (N. 
 Y.) 5'J2 ; that there is a waut or misjpiuder
 
 DEMURRER 
 
 840 
 
 DEMURRER 
 
 of plaintiffs; 1 P. Wins. 428; Mitchell v. 
 Lenox, 2 Paige, Ch. (N. Y.) 281; Wormley 
 v. Wormley, 8 Wheat. (U. S.) 451, 5 L. Ed. 
 (351; Southern Life Ins. & Trust Co. v. 
 Lanier, 5 Fla. 110, 58 Am. Dec. 448; White 
 v. Curtis, 2 Gray (Mass.) 467; Betton v. 
 Williams, 4 Fla. 11 ; but only when it ap- 
 pears from the facts disclosed by the bill ; 
 Farson v. Sioux City, 106 Fed. 278 ; Walling 
 v. Thomas, 133 Ala. 426, 31 South. 982; for 
 a misjoinder of parties defendant where 
 those only can demur who are improperly 
 joined; Bigelow v. Sanford, 98 Mich. 657, 57 
 N. W. 1037; or where laches affirmatively 
 appear on the face of a bill ; Hinchman v. 
 Kelley, 54 Fed. 63, 4 C. C. A. 189 ; Thurmond 
 v. Ry. Co., 140 Fed. 697, 72 C. C. A. 191; 
 Tetrault v. Fournier, 187 Mass. 58, 72 N. E. 
 351; Thompson v. Iron Co., 41 W. Va. 574, 
 23 S. E. 795 ; Hawley v. Pound, 76 Neb. 130, 
 106 N. W. 458 ; or staleness of claim ; Hub- 
 bard v. Manhattan Trust Co., 87 Fed. 51, 30 
 C. C. A. 520; but only when it appears on 
 the face of the bill ; Marsh v. Marsh, 7S Vt. 
 399, 63 Atl. 159 ; but laches as an equitable 
 defence cannot be raised on demurrer ; Drake 
 v. Wild, 65 Vt. 611, 27 Atl. 427 ; Gleason v. 
 Carpenter, 74 Vt 399, 52 Atl. 966. 
 
 A demurrer to an answer or plea in equity 
 is improper ; Pennsylvania Co. v. Bay, 138 
 Fed. 203; and is not permitted; Stokes v. 
 Farnsworth, 99 Fed. 836. The sufficiency of 
 an answer is properly questioned by setting 
 the cause down for hearing on bill and an- 
 swer ; Barrett v. Twin City Power Co., Ill 
 Fed. 45 ; or of a plea by setting it down for 
 argument ; Roundtree v. Gordon, 8 Mo. 19 ; 
 but a demurrer to an answer filed and not 
 objected to has been treated as an applica- 
 tion to set the cause down on bill and an- 
 swer; Grether v. Wright, 75 Fed. 742, 23 
 C. C. A. 498. 
 
 Demurrers to discovery may be brought for 
 most of the above causes ; 12 Beav. 423 ; 
 Ocean Ins. Co. v. Fields, 2 Sto. 59, Fed. Cas. 
 No. 10,406; and, generally, that the plaintiff 
 has no right to demand the discovery asked 
 for, either in whole or in part; 8 Ves. 398; 
 2 Russ. 564; or to ask it of the defendant; 
 Story, Eq. PI. § 570. "A demurrer to dis- 
 covery is not, in its nature, a pleading at 
 all, but a mere statement in writing that 
 the defendant refuses to answer certain al- 
 legations or charges in the bill, for reasons 
 which appear upon the face of the bill, and 
 which the demurrer points out." . Langd. Eq. 
 PI. 61. See Discovery. 
 
 The effect of a demurrer when allowed is 
 to put an end to the suit, unless it is con- 
 fined to a part of the bill, or the court gives 
 the plaintiff leave to amend ; Fleece v. Rus- 
 sell, 13 111. 31 ; it is within the discretion of 
 the court whether the defendant will be ruled 
 to answer after overruling a demurrer; and 
 it may enter a decree against him at once, or 
 hear evidence, or refer to a master to take 
 evidence before entering a decree; Iglehart 
 
 v. Miller, 41 111. App. 439; Bruschke v. Der 
 Nord Chicago Schuetzen Verein, 145 111. 433, 
 34 N. E. 417. If overruled, the defendant 
 must make a fresh defence by answer; Cole 
 County v. Angney, 12 Mo. 132 ; unless he 
 obtain permission to put in a plea; Ad. Eq. 
 336. Since, as shown supra, the demurrer 
 does not admit the truth of the bill, but only 
 assumes it for tne sake of argument, if the 
 demurrer is overruled the plaintiff must pro- 
 ceed to prove his bill; Langd. Eq. PI. 104. 
 The court will sometimes disallow the de- 
 murrer without deciding that the bill is good, 
 reserving that question till the hearing ; id. 
 106. 
 
 Equity rules usually provide for a certifi- 
 cate of the opinion of counsel that the demur- 
 rer is well founded in law, and an affidavit 
 by defendant that it is not interposed for de- 
 lay. 
 
 At Law. A general demurrer is one which 
 excepts to the sufficiency of a previous plead- 
 ing in general terms, without showing spe- 
 cifically the nature of the objection ; and such 
 demurrer is sufficient when the objection is 
 on matter of substance; Steph. PI. 159; Co. 
 Litt. 72 a; Flanagan v. Ins. Co., 25 N. J. L. 
 506; Gordon v. State, 11 Ark. 12; Coffin v. 
 Knott, 2 G. Greene (la.) 582, 52 Am. Dec. 
 537; Tyler v. Canaday, 2 Barb. (N. Y.) 160; 
 Cheek v. Herndon, 82 Tex. 146, 17 S. W. 763. 
 A court, after overruling a general demurrer 
 to a complaint on the ground that it does 
 not state a cause of action, may in its dis- 
 cretion enter final judgment on the demur- 
 rer; Alley v. Nott, 111 U. S. 472, 4 Sup. Ct. 
 495, 28 L. Ed. 491. 
 
 A special demurrer is one which excepts 
 to the sufficiency of the pleadings on the 
 opposite side, and shows specifically the na- 
 ture of the objection and the particular 
 ground of exception; Co. Litt. 72 a. An ob- 
 jection to a complaint, on the ground of 
 ambiguity or uncertainty, can be taken only 
 by special demurrer ; Kirsch v. Derby, 96 
 Cal. 602, 31 Pac. 567; as must be a demurrer 
 to a plea on the ground of duplicity ; Willey 
 v. Carpenter, 64 Vt. 212, 23 Atl. 630, 15 L. R. 
 A. 853 ; but see Corpening v. Worthington & 
 Co., 99 Ala. 541, 12 South. 426. 
 
 It is necessary where the objection is to 
 the form, by the statutes 27 Eliz. c 5 and 
 4 Anne, c. 16; Blakeney v. Ferguson, 18 Ark. 
 347 ; Mitchell v. Williamson, 6 Md. 210 ; Lyon 
 v. Fish, 20 Ohio, 100. Under a special demur- 
 rer the party may, on the argument, not only 
 take advantage of the particular faults 
 which his demurrer specifies, but also of all 
 objections in substance. 
 
 It is not enough that a special demurrer 
 object in general terms, that the pleading 
 is "uncertain, defective, and informal," or 
 the like, but it is necessary to show in what 
 respect it is uncertain, defective, and infor- 
 mal; 1 Wms. Saund. 161, n. 1, 337 b, n. 3; 
 Steph. PI. 159, 101 ; 1 Chit. PI. 642. 
 
 A demurrer may be for insufficiency either
 
 DEMURRER 
 
 841 
 
 'LURER 
 
 in substance or in form; that is, it may be 
 either on the ground that the case shown 
 by the opposite party is essentially insuffi- 
 cient, or on the ground that it is stated In 
 an inartificial manner; Hob. 1G4 ; Richmond 
 v. Brookings, 48 Fed. 241. But Buch a de- 
 murrer does not raise th lestion of the ju- 
 risdiction of the court; Saxton v. Beiberling, 
 48 Ohio St. 554, 29 N. E. 179. It lies to any 
 of the pleadings, except that there may not 
 be a demurrer to a demurrer; Salk. 219 : Ba- 
 con, Abr. I'Uas (N 2). But it will not lie to 
 a supplemental complaint; Lewis v. Rowland, 
 131 Ind. 37, 30 N. E. 796; while it will to a 
 supplemental answer ; Eckert v. Binkley, 134 
 Ind. 614, 33 N. E. 019, 34 N. E. 441. Demur- 
 rer may be to the whole or a part of the 
 pleading; but if to the whole, and a part be 
 good, the demurrer will lie overruled; li 
 76; Backus v. Richardson, 5 Johns. (N. Y.) 
 476; Brown v. Castles, 11 Cush. (Mass.) 348; 
 Tucker v. Hart, 23 Miss. 54S; Brown v. 
 Duchesne, 2 Curt. C. C. 97, Fed. Cas. No. 2,- 
 003; Walton v. Stephenson, 14 111. 77; Scott 
 v. State. 2 Md. 2S4; Pinkum v. City of Eau 
 Claire, 81 Wis. 301, 51 N. W. 550; Alabama 
 Great Southern R. Co. v. Tapia, 94 Ala. 226, 
 10 South. 23G. But see Barbee v. Road Co., 
 6 Fla. 262; Whiting v. Heslep, 4 Cal. 327 ; 
 State v. Clark, 9 Ind. 241 ; Henderson v. 
 Stringer, 6 Gratt. (Va.) 130; Com. v. Hughes, 
 8 B. Monr. (Ky.) 400. The objection must 
 appear on the face of the pleadings; 2 Saund. 
 364; Town of Hartland v. Town of Windsor, 
 29 Vt. 354 ; or upon oyer of some instrument 
 defectively set forth therein; 2 Saund. 00, 
 n. ; Williams v. Boyle, 1 Misc. 304, 20 N. Y. 
 Supp. 720. A joint demurrer by two defend- 
 ants to a declaration for want of a cause of 
 action should be overruled if the declara- 
 tion sets forth a cause of action as to either 
 of them ; May v. Jones, 88 Ga. 308. 14 S. E. 
 552, 15 L. R. A. 637, 30 Am. St. Rep. 154; 
 Lancaster v. Roberts, 144 111. 213, oo N. E. 
 27. 
 
 A demurrer does not reach vagueness and 
 uncertainty in a complaint, but they must 
 be remedied by a motion to make more spe- 
 cific and certain; Sheeks v. Erwin, 130 Ind. 
 31, 29 N. E. 11; Sluyter v. Ins. Co., 3 Ind. 
 App. 312. 29 N. E. 608; Chamberlain v. Men- 
 sin-. 53 Fed. 669. 
 
 Where the want of jurisdiction in a fed- 
 eral court is apparent on the face of the 
 petition, declaration or complaint, it may be 
 taken advantage of by demurrer ; Southern 
 P. Co. v. Denton. 1 JO U. S; 202, 13 Sup. Ct 4 I. 
 36 L. Ed. 942; Hagstoz v. Ins. Co., 179 Fed. 
 569; and the same is true of the statute of 
 limitations; Wood v. Carpenter, 101 D. S. 
 135, 25 L. Ed. 807 ; Kendall v. U. S., 107 U. 
 S. 123, 2 Sup. Ct. 277, 27 L. Ed. 437. 
 
 For the various and numerous causes of 
 demurrer, reference must be had to the law 
 of each state. 
 
 ,4s to the effect of a demurrer. It admits 
 all such matters of fact as are sufficiently 
 
 pleaded ; Com. Dig. v. 
 
 Ireland, 4 la. 63; Roberts v. State, 14 Ga. 8, 
 m. Dec. 528; 1 7 Ark. 
 
 282; Soule v. Seattle, 6 Wi mc. 
 
 384, 10S0; Jorgensen v. Mb Church, 
 
 7 Misc. 1, 27 N. Y. Supp. 31£ 
 to test the Bufficlen y ol th aid- 
 
 ing both as to form and B I it 
 
 was resorted to by either party who I 
 that the pleading of the other party w, 
 sufficient either because the declaration did 
 not show a good cause of action or the plea 
 did not set up a legal defence; but it d. 
 not admit mere epithets charging fraud and 
 allegations of legal conclusions ; Kent v. R. 
 & 1. Co., Ml 1". S. 7.-,, 12 Sup. Ct. 650, 36 I.. 
 Ed. 352 ; nor an erroneous averment of law ; 
 Dickerson v. Winslow, 97 Ala. 491, 11 South. 
 918. 
 
 The demurrer reaches back to the first 
 error in the pleading; Terry v. Tubman, 92 
 U. S. 156, 23 L. Ed. 537; hut not where the 
 defect is of form and not of substance; Bal- 
 timore & O. R. Co. v. Harris, 12 Wall. (U. 
 S.) 65, 20 L. Ed. 354. On demurrer the court 
 consider the whole record, and give judg- 
 ment according to the legal right for the 
 party who on the whole seems best entitled 
 to it; 4 East 502; Pickett v. Bank, 8 Ark. 
 224; Wales v. Lyon, 2 Mich. 27*',; Towi 
 v. Jemison, 7 How. (U. S.) 706, 12 L. Ed. 
 880; Shaw v. White, 2S Ala. 637; Claf 
 v. Simes, 31 N. H. 22; Freeman v. Freeman, 
 39 Me. 420; Peoria & O. R. Co. v. Neill, 16 
 111. 269. For example, on a demurrer to the 
 replication, if the court think ti 
 tion bad, but perceive substantial fault in 
 the plea, they will give judgment, not tor 
 the defendant, but for the plaintiff; 2 Wile. 
 150; Townsend v. Jemison, 7 How. (U. S.) 
 706, 12 L. Ed. 880; provided the declaration 
 be good; but if the declaration also be bad 
 in substance, then, upon the same principle. 
 Judgment would be given for the defendant : 
 5 Co. 29a. The court will not look back into 
 the record to adjudge in favor of an appar- 
 ent right in the plaintiff, unless the plaintiff 
 have himself put his action upon thai 
 ground: 5 B. ft Aid. 507. Iff however, the 
 plaintiff demur to a idea in abatement, and 
 the court decide against the plea, they will 
 give judgment of respondeat ouster, with- 
 out regard to any defect In the declaration; 
 Carth. 172; Kllis v. Ellis, 4 R. I. 110; Knott 
 v. Clements. 13 Ark. 335; Ryan v. May, 14 
 111. 49. A party waives his demurrer by not 
 calling for action thereon; Phoenix ins. Co. 
 v. Boren, 83 Tex. 97, is s. W. 484. 
 
 In Practice. Demurrer upon evidence is a 
 declaration that the party making it, gener- 
 ally the defendant, will not proceed, because 
 the evidence offered on the other side is not 
 sufficient to maintain the issue; Shaw v. 
 White. 28 Ala. 637. 
 
 It is said that, although generally super- 
 seded by motion for nonsuit, binding instruc- 
 tions, or to exclude the evidence from the
 
 DEMURRER 
 
 842 
 
 DEMURRER 
 
 jury, the practice is recognized "in nearly 
 half the states" in civil cases; 15 H. L. Rev. 
 738. Nevertheless, the proceeding is so hedg- 
 ed about with technicalities that it is infre- 
 quently resorted to and when invoked has 
 been the subject of the continuing disap- 
 proval of the courts ever since it was said 
 by Chief Justice Tilghrnan that "he who de- 
 murs to parol evidence engages in an uphill 
 business"; Dickey v. Sehreider, 3 S. & R. 
 (Pa.) 416; and Emery, J., characterized it 
 aa "unusual and antiquated practice"; State 
 v. Soper, 16 Me. 293, 33 Am. Dec. 665. In 
 1859 it had long been out of use in New York 
 and refusal to allow it was not cause of ex- 
 ception ; Colegrove v. R. Co., 20 N. Y. 492, 
 75 Am. Dec. 418. 
 
 Upon joinder by the opposite party, the 
 jury is generally discharged from giving any 
 verdict; 1 Archb. Pr. 186; and the demurrer 
 being entered on record is afterwards argued 
 and decided by the court in banc; and the 
 judgment there given upon it may ultimately 
 be brought before a court of error; Andr. 
 Steph. PI. 180. It admits the truth of the 
 evidence given and the legal deductions 
 therefrom ; Davis v. Steiner, 14 Pa. 275, 53 
 Am. Dec 547 ; Hopkins v. Bowers, 111 N. C. 
 175, 16 S. E. 1; Doe v. Rue, 4 Blackf. (Ind.) 
 263, 29 Am. Dec. 368; but only such infer- 
 ences as the jury might have drawn ; Union 
 S. S. Co. v. Nottinghams, 17 Gratt. (Va.) 115, 
 91 Am. Dec. 378; MacKinley v. McGregor, 3 
 Whart. (Pa.) 369, 31 Am. Dec. 522. An of- 
 fer, in a civil case, so to demur, is not stricti 
 juris, but is allowable only in the discretion 
 of the court and should be refused if there 
 is not colorable cause for it; Jones v. Ireland, 
 4 la. 63 ; it may be tendered by either party 
 and the court may compel a joinder, but the 
 power should be exercised with discretion, 
 and when exercised, the action of the court 
 is open to review ; Eubank's Ex'r v. Smith, 
 77 Va. 206. See Plant v. Edwards, 85 Ind. 
 588. All facts proved and legitimate infer- 
 ences therefrom must be admitted; Hopkins 
 v. R. R., 96 Tenn. 409, 34 S. W. 1029, 32 L. 
 R. A. 354 ; Illinois Cent. R. Co. v. Brown, 96 
 Tenn. 559, 35 S. W. 560; and until the party 
 demurring does this, the party offering the 
 evidence is not required to'join in demurrer; 
 
 2 H. Bl. 189 (where the subject and the prac- 
 tice thereon was elaborately considered in 
 the House of Lords) ; and if the evidence is 
 prima facie insufficient the demurrer is sus- 
 tained; State v. Goetz, 131 Mo. 675, 33 S. 
 W. 161; otherwise if there is some evidence 
 on each material point ; Hagan v. B'l'g & 
 Loan Ass'n, 2 Kan. App. 711, 43 Pac. 1138; 
 Cherokee & P. Coal & Mining Co. v. Britton, 
 
 3 Kan. App. 292, 45 Pac. 100. "Since it was 
 determined that a demurrer to evidence could 
 not be resorted to as a matter of right, it 
 has fallen into disuse ; and as long ago as 
 1813 (Young v. Black, 7 Cra. (U. S.) 505, 3 
 L. Ed. 440) it was regarded as an unusual 
 proceeding, and one to be allowed or denied 
 
 by the court in the exercise of a sound dis- 
 cretion under all the circumstances of the 
 case;" Suydam v. Williamson, 20 How. (U. 
 S.) 427, 436, 15 L. Ed. 978. A bill of ex- 
 ceptions is more comprehensive, in that it 
 permits the review of rulings upon the ad- 
 mission of evidence, objection to which is 
 waived by the demurrer ; id. An offer of an 
 instruction to find for the defendant, sub- 
 mitted at the close of the" plaintiff's evidence, 
 is equivalent to a demurrer to the evidence; 
 Mitchell v. Ry. Co., 82 Mo. 106 ; Baker T. 
 State, 31 Ohio St. 314. 
 
 The result of a demurrer to evidence must 
 be final judgment for one party or the other 
 — for the defendant if his demurrer were 
 sustained or for the plaintiff if it were over- 
 ruled, and in the latter case judgment would 
 be given on the verdict if a conditional one 
 had been taken, or if not, a writ of inquiry 
 would issue to assess the damages. This 
 practice appears from the cases already cited 
 and is well stated in Obaugh v. Finn, 4 Ark. 
 110, 37 Am. Dec. 773, where it was held to 
 be error to retain the jury after joinder in 
 demurrer to evidence and to submit the case 
 to the jury after overruling the demurrer. It 
 would seem therefore that after that has 
 been done the defendant demurrant is pre- 
 cluded from introducing evidence; State v. 
 Groves, 119 N. C. 822, 25 S. E. 819 ; although 
 it appears to have been done in an Oklahoma 
 case in which, on writ of error, the United 
 States Supreme Court held ■ that where the 
 defendant, after his demurrer to the evidence 
 was overruled, had introduced evidence in 
 his own behalf, he waived any supposed er- 
 ror in the decision on the demurrer; Mc- 
 Cabe & Steen Const. Co. v. Wilson, 209 U. S. 
 275, 28 Sup. Ct. 558, 52 L. Ed. 788. And it 
 was also done in Oglesby v. R. Co., 177 Mo. 
 272, 76 S. W. 623, where, after a demurrer to 
 evidence was overruled, the defendant put in 
 its testimony, which, with the plaintiff's, was 
 considered as a whole and reviewed on ap- 
 peal, and the court declined to review the 
 judgment that the case was one to go to the 
 jury. 
 
 In criminal trials it is entirely discretion- 
 ary with the court whether it will entertain 
 a demurrer to the evidence, even though 
 counsel for the prisoner and state should 
 both consent to it ; Duncan v. State, 29 Fla. 
 439, 10 South. 815. In some courts, the pro- 
 priety of the proceeding, in criminal cases, 
 is denied; Nelson v. State, 47 Miss. 621 ; Mil- 
 ler v. State, 79 Ind. 198; Baker v. State, 31 
 Ohio St. 314; Doss v. Com., 1 Gratt (Va.) 
 557 ; State v. Alderton, 50 W. Va. 101, 40 S. 
 E. 350 ; while in others it is allowed but not 
 encouraged; Martin v. State, 62 Ala. 240; 
 State v. Soper, 16 Me. 293, 33 Am. Dec. 665. 
 If allowed, it must state facts, and not evi- 
 dence tending to prove those facts; Crowe 
 v. People, 92 111. 231 (and this applies also 
 in civil causes; Story, J-, in Fowle v. Alex- 
 andria, 11 Wheat [U. S.] 320, 6 L, Ed. 4S4) ;
 
 DEMURRER 
 
 843 
 
 DENIZA 
 
 and if it is resorted to by an accused, and 
 overruled, he cannot Introduce further evi- 
 dence to controvert that which he has ad- 
 mitted; siate v. Groves, H!» X. <'. 822, 25 
 S. E. 819. 
 
 A demurrer to the evidence in equity has 
 the s.-i ( as at law, and concedes ev- 
 
 ery fact which such evidence tends to prove, 
 and every Inference fairly ■ from 
 
 the facts proved; Healey v. Simpson, L13 
 Mo. 340, 20 S. w. 881. 
 
 For a full discussion of the 
 L. K. A. 354. 
 
 Demurrer to interrogatories is the v 
 which a witness tenders for not answering 
 a particular question in inl lies; - 
 
 Swanst 194. it is not, strictly speaking, a 
 demurrer, except in the po] ular sense of the 
 word; Gresl. Eq. Ev. 61. The court are ju- 
 dicially to determine its validity. The wit- 
 ness must state his objection very carefully; 
 for these demurrers are held to strict rules, 
 and are readily overruled if they cover too 
 much; 2 Atk. 524; 1 Y. & J. 132. 
 
 DEMURRER BOOK. In English Practice. 
 A transcript of all the pleadings that have 
 been fded or delivered between the parties 
 made upon the formation of an issue at law. 
 3 Steph. Com. 511; Lush, Pr. 787. 
 
 DEMURRER UPON EVIDENCE. See De- 
 
 MUKRF.R. 
 
 DEMY SANKE, DEMY SANGUE. Half- 
 blood. A corruption of demi-sang. 
 
 DEN AND STROND. Liberty for ships 
 and vessels to run aground or come ashore 
 (strand themselves). Cowell. 
 
 DENARII. An ancient general term for 
 any sort of pecunia numerata, or ready mon- 
 ey. The French use the word tl< nier in the 
 same sense; payer de ses propres rf>iii<rx. 
 
 DENARIUS DEI. God's penny; earnest 
 money. A certain sum of money which is 
 given by one of the contracting parties to 
 the other as a sign of the completion of the 
 contract. See Eabnest; God's Pinny. 
 
 It differs from arrhce in this, that the latter Is a 
 part of the consideration, while the denarius Dei Is 
 no part of It. 1 Duvtrgnoy, n. 132 ; 3 id. n. 49 ; 
 Repert. de Jur., Denit r n Hint. 
 
 DENATIONALIZATION. See EXPATRIA- 
 TION. 
 
 DENIAL. In Pleading. A traverse of the 
 statement of tin- opposite party; a defence. 
 
 DENIER A DIEU. In French Law. A 
 sum of money which the hirer of a thing 
 gives to the other party as evidence, or for 
 the consideration of me contract, which 
 either party may annul within twenty four 
 hours, the one who gave the denier </ Dieu 
 by demanding, and the other by returning 
 it. See Denarius Del 
 
 Earnest Money. Rellow's Diet. 
 
 DENIZATION. The act by which a for- 
 eigner becomes a subject of a country, but 
 
 without the - of a natural 
 
 I Or of one whi 
 It has existed from an earl;. and is 
 
 d only by hi! 
 
 Denization hi 
 i"ii ; a <: in an i: 
 
 position between a!! alien and 
 subject, 
 tors. lie may ordinarily 
 
 luit not by i:: 1 
 born before denizal 
 him, hut his Issue ' 
 burn, Nationalll 
 
 Priest v. Cummings, 20 Wend. (N. Y.i 
 • . >_. 
 
 The difference betv n and nat- 
 
 uralization is that the i 
 
 British SUl ■ date of : 
 
 while a naturalized person is pin. 1 ii ; 
 sition equivalent to that of a natural-born 
 subject : Dicey, Conft Laws 164. 
 
 DENIZEN. An alien horn who lias ob- 
 tained, i ./■ donatiom legit, Letters patent to 
 make him an English subject 
 
 lie is Intermediate a natural-born 
 
 subject and an alien. He may take lands hy 
 purchase or devise,— which an alien c 
 hut he is Incapable of tailing hy inheritance. 
 i Bla. Com. 374. 
 
 In South Carolina, and perhaps in other 
 stales, this civil condition is well known to 
 the law, having been created by -'Mute. 
 
 The right of making denizens is i. 
 elusive] y vested in the king, for it is pos- 
 by parliament, but is Bcarcelj 
 ed hut hy royal power. It may be 
 effected hy conquest: 7 Co. 6o; 2 Ventr. <">: 
 Com Dig. Alien <I>'l); Chitty, Com. Law 
 120. See Denization. 
 
 In the common law. the word dnnizen is 
 applied to a natural-born sub- 
 ject Co. Litt. L29a; Levy v. BfcCartee, 6 
 Pet. (U. S.) 102, lit;. S L. Ed. :::'.l. 
 
 DENOUNCE. A term frequently used in 
 regard to treaties. Indicating the act of one 
 nation in giving notice t.< another nati 
 its Intention to terminate an existing treaty 
 between the two nations. The French </< - 
 noncer means ti .to lodge an infor- 
 
 mation against Bellows, Pr. Diet 
 
 DENOUNCEMENT. In Mexican Law. A 
 judicial proceeding for the forfeiture of land 
 held hy an alien. See ]>,- \ferle v. Mathews. 
 26 Cal. 177: Von Schmidt v. Huntington, l 
 Cal. 63; Craig v. Leslie, •'": Wheat (U. S.) 
 563, 4 L. Ed. WO. 
 
 DENUNCIATION. In Civil Law. The act 
 hy which an individual informs a publl 
 cer, whose duty it is to prosecute offenders, 
 that a crime has been committed. See 1 Bro. 
 (iv. Law t!7; AylilTe, Parerg. 210; l'othier, 
 Proa Cr. - • I -. § 2. 
 
 The giving of an information in the ec- 
 clesiastical courts by one who was not the 
 accuser.
 
 DENUNTIATIO 
 
 844 
 
 DEPARTMENT 
 
 DENUNTIATIO. In Old English Law. A 
 
 public notice or summons. Bracton 202 6. 
 
 DE0DANO. Any personal chattel what- 
 ever, animate or inanimate, which is the im- 
 mediate cause of the death of a human crea- 
 ture. It was forfeited to the king to be dis- 
 tributed in alms by his high almoner "for 
 the appeasing." says Coke, "of God's wrath."' 
 The word comes from Deo dandum, a thing 
 that must be offered to God. 
 
 A Latin phrase which is attributed to Bracton has, 
 by mistranslation, given rise to some erroneous 
 statements in some of the authors as to what are 
 deodands. Omnia quae ad mortem movent, although 
 it evidently means all things which tend to produce 
 death, has been rendered move to death, — thus giv- 
 ing rise to the theory that things in motion only are 
 to be forfeited. A difference, however, according to 
 Blackstone, existed as to how much was to be sacri- 
 ficed. Thus, if a man should fall from a cartwheel, 
 the cart being stationary, and be killed, the wheel 
 only would be deodand: while, if he was run over 
 by the same wheel in motion, not only the wheel but 
 the cart and the load became deodand. And this, 
 even though it belonged to the dead man. Horses, 
 oxen, carts, boats, mill-wheels, and cauldrons were 
 the commonest deodands. The common name for it 
 was the "bana," the slayer. In the thirteenth cen- 
 tury the common practice was that the thing itself 
 was delivered to the men of the township where the 
 death occurred, and they had to account to the 
 king's officers. In very early records the justices in 
 eyre named the charitable purpose, to which the 
 money was to be applied ; 2 Poll. & Maitl. 471. In 
 1840, a railway company in England was amerced 
 £2,000, as a deodand. I^eodands were not abolished 
 till 1S46. See 1 Bla. Com. 301; 2 Steph. Com. 551; 
 Holmes, C. L. 24. 
 
 No deodand accrues in the case of a fel- 
 onious killing; 1 Q. B. 818; 1 G. & D. 211, 
 481 ; Dow. 1048. Deodands, as droits for- 
 merly attaching to the office of the Lord 
 High Admiral, are defined as "things instru- 
 mental to the death of a man on shipboard, 
 or goods found on a dead body cast on 
 shore." See 2 Browne, Civ. L. 56. ' 
 
 DEPART. To divide or separate actively. 
 The departers of gold and silver were no 
 more than the dividers and refiners of those 
 metals. Cowell. 
 
 DEPARTMENT. A portion of a country. 
 In France, the country is divided into de- 
 partments, which are somewhat similar to 
 the counties in this country. The United 
 States have been divided into military de- 
 partments, including certain portions of the 
 country. Parker v. U. S., 1 Pet. (U. S.) 
 293, 7 L. Ed. 150. 
 
 A portion of the agents employed by the 
 executive branch of the United States gov- 
 ernment, to whom a specified class of duties 
 is assigned. They are appointed by the 
 president, by and with the advice of the 
 senate. 
 
 The Department of State is intrusted with 
 such matters relating to correspondence, 
 commissions, and instructions to or with 
 public ministers and consuls of the United 
 States, or to negotiations with public minis- 
 ters from foreign states or princes, or to 
 memorials or other applications from foreign 
 
 public ministers or other foreigners, or to 
 such matters respecting foreign affairs as 
 the president shall assign to said depart- 
 ment U. S. R. S. § 202. It has custody and 
 charge of the seal of the United States, and 
 of the seal of the department of state, and 
 of all of the books, papers, records, etc., in 
 and appertaining to the department, or any 
 that may hereafter be acquired by it; id. § 
 203. 
 
 The principal officer is a secretary ; he 
 shall conduct the business of the department 
 in such manner as the president shall direct. 
 There are three assistant secretaries of state. 
 
 The Department of the Treasury bas 
 charge of the services relating to the financ- 
 es. It is the duty of the secretary to digest 
 and prepare plans for the improvement and 
 management of the revenue, and for the 
 support of public credit ; to prepare and re- 
 port estimates of the public revenue and the 
 public expenditures ; to superintend the col- 
 lection of the revenue; to decide on the 
 forms of keeping and stating accounts and 
 making returns, and to grant, under limita- 
 tions established by law, all warrants for 
 moneys to be issued from the treasury in 
 pursuance of appropriations by law; to make 
 report and give information to either branch 
 of the legislature, in person or in writing, 
 respecting all matters referred to by the 
 senate or house of representatives, or which 
 shall appertain to his office; and, generally, 
 to perform all such services relative to the 
 finances as he shall be directed to perform. 
 The department includes internal revenue; 
 the mint; life saving service; engraving and 
 printing; national banking system; revenue 
 marine ; customs ; supervising architect. 
 There are three assistant secretaries. 
 
 The Department of War is intrusted with 
 duties relating to the land forces. There is 
 an assistant secretary. U. S. R. S. § 214. 
 It has charge of the Military Academy. 
 
 The Department of Justice is presided 
 over by the attorney-general, who is assisted 
 by the solicitor-general and four assistant 
 attorneys-general, and by solicitors for cer- 
 tain departments. There is provision for 
 the employment of special counsel in certain 
 cases. 
 
 The attorney-general is required to give 
 his advice and opinion upon questions of 
 law whenever required by the president or 
 the head of any executive department, and 
 on behalf of the United States to procure 
 proper evidence for, and conduct, prosecute 
 or defend all suits in the supreme court or 
 in the court of claims, in which the United 
 States or any officer thereof, as such officer, 
 is a party or may be interested. He exer- 
 cises general superintendence and direction 
 over the attorneys and marshals of all the 
 districts in the United States and territories, 
 and has power to employ and retain such at- 
 torneys and counsellors-at-law as he may
 
 DEPAKTMi.XT 
 
 845 
 
 DEPARTURE 
 
 think necessary to assist the district attor- 
 neys in the discharge of their duties. I . S. 
 R. S. § 346. 
 
 The Post Office Department has tin- gener- 
 al charge of matters relating to the | 
 service, the establishment of post-offices, ap- 
 pointment of postmasters, and the like. The 
 head of the department is the postmaster- 
 general and t hcie are four assistant post- 
 masters-generaL U. S. K. S. §§ 894 396; I 
 Bnpp. 927. 
 
 The Department of the Navy is Intrusted 
 with the charge of the navy. There is an 
 assistant secretary and a Judge adi 
 general. There are in the navy department 
 certain bureaus: Yards and docks; equip- 
 ment and recruiting; navigation; ordnance; 
 construction and repair; steam engineering; 
 provisions and clothing; medicine and sur- 
 gery. It includes the Marine Corps and the 
 Naval Academy. 
 
 The Department of the Interior lias gener- 
 al supervisory and appellate powers over the 
 office of the commissioner of patents, and 
 charge of the land office, Indian affairs, pen- 
 sions, education, mines, geological survey, 
 government hospitals and asylums and capi- 
 tol buildings. There is an assistant secre- 
 tary. 
 
 The Department of Agriculture is presided 
 over by a secretary of agriculture. The de- 
 sign and duties of this department are to 
 acquire and diffuse useful information on 
 subjects connected with agriculture, and to 
 procure, propagate, and distribute anion- Un- 
 people new and valuable seeds and plants; 
 Act Feb. 9, 1SS9 ; by act of 1S90 the Weather 
 Bureau was added. There is an assistant 
 secreta ry. 
 
 The Department of Commerce was pro- 
 vided by Act of Feb. 14, 1903, as the Depart- 
 ment of Commerce and Labor; upon the cre- 
 ation (infra) of the Department of Labor, it 
 became the Department of Commerce. The 
 department includes supervision of corpora- 
 tions, lighthouses, the census, steamship in- 
 spection, standards, navigation and foreign 
 and domestic commerce. 
 
 The Department of Labor was created by 
 Act of March 4, 1913, to promote the welfare 
 of the wage earners of the United States, to 
 Improve their working conditions, etc. it in- 
 cludes immigration, naturalization, labor 
 statistics and children's bureau. 
 
 As to the succession to the presidenc; 
 Cabinet, 
 
 DEPARTURE. In Maritime Law. A devi- 
 ation from the course prescribed in the policy 
 of insurance. See Deviation. 
 
 In Pleading. The statement of matter in a 
 replication, rejoinder, or subsequent plead- 
 ing, as a cause of action or defence, which is 
 not pursuant to the previous pleading of 
 the same party, and which does not support 
 and fortify it. 2 Wms. Saund. 84 d, n. I : Co. 
 Litt. 304 o. It is not allowable, as it pre- 
 
 vents reaching an issue; Kimberlin v. Car- 
 ter, 49 Ind. Ill; White v. Joy, 13 N. Y. 83, 
 89; 2 Wms. Saund. a, n. 1 : Bteph. PL 
 
 A replication in tort I 
 tion in contract is . 
 
 and so it 
 tirely different char 
 
 port the declaration and the reply; John- 
 son v. Dank. 59 Kan. 250, 52 
 Change Of an immaterial point i£ DO 
 ure ; 1 Sua. Lil ; nor is It If 
 
 pleadings merely fortifies the fori ier; l Lev. 
 81; nor where the replication , 
 
 a prima fad* Bel up by the 
 
 plea, as a statute against a claim of coi 
 law right; 1' P.. & B. W2; nor the allegation 
 in reply of new matter necessary to meet the 
 
 lions of the answer, if not contradicto- 
 rs to the Cactt Btated in the original plead- 
 
 Hunter Hilling Co. v. Allen. 71 Kan. 
 
 - Pae 252, 8 L. B. A. (N. B.) -'-'l i Mc 
 Lachlin v. Barker, 84 Mo. App. 511; ' 
 
 hens, 38 Or. 512, 63 Pac. 760, 64 Pac. 
 319; McFadden v. Schroeder, i ind. App. 
 305, 29 X. B. I!)l, 30 X. K. 711; not t : 
 ting out of previous averments in : 
 detail; Zona v. Llvesley, -ft Or. 501, 7.". Pac 
 1057. 
 
 It is to be taken advantage of by demurrer, 
 general; 5 D. & R. 295; Stem 
 11 Johns. (X. Y.) 132; Keay v. Goodwin, id 
 Mass. l; or special; *_' Saund. B4; i 
 Pleader (F 10); Hanover Fire I 
 City of Xe\\ York v. Brown, 77 Md. 64, 25 
 Atl. 989, 27 Atl. 314, 30 Am. St. Hep. 388. 
 . A departure is cured by a verdict in favor 
 Of him who makes it. if the matter p] 
 by way of departure is a sufficient answer in 
 substance to what has been before p ':• 
 by the opposite party; that Is, if it would 
 have been sufficient if pleaded in the first 
 instance; 2 Saund. S4 ; 1 Lilly, Abr. ill. 
 
 DEPARTURE IN DESPITE OF COURT. 
 This took place where the tenant, having 
 made his appearance in court npon de- 
 mand, failed to reappear when demanded; 
 Co. Litt L39tt. As the whole term is, in 
 contemplation of law. hut a sing 
 appearance on any day, and a subsequent 
 failure to reappear at any subsequent part 
 of the term, is such a departure ; - 
 1 Roiie. Abr. 583; Met . lelv. 211. 
 
 DEPENDENCY. A territory distinct from 
 untry in which the supreme bov< 
 power resides, but belonging rightfully to it, 
 and subject to the laws and regulations 
 which the sovereign may think proper to pre- 
 scribe. • 
 
 It (lifters from a colony, because it is not 
 by the citizens of tbe sovereign or mother state; 
 and from possession, because it is held by other title 
 than that of mere conqui it For example, Malta 
 was considered a dependency of Great Britain In the 
 i . S. v. The Nancy, 3 Wash. C. C. 286, 
 is. Xo 15,854. See Act of Cong. Men. 1, 1809, 
 commonly called the non-importation law; Term- 
 xoby ; Indians.
 
 DEPENDENT 
 
 846 
 
 DEPORTATION 
 
 DEPENDENT. One who derives support 
 from another. Ballou v. Gile, 50 Wis. 618, 
 7 N. W. 561; Supreme Council American 
 Legion of Honor v. Perry, 140 Mass. 590, 5 
 X. E. C34 ; not merely persons who derive a 
 benefit from the earnings of the deceased; 
 [1S99] 1 Q. B. 1005. A father is in part de- 
 pendent on his child, however young, if the 
 wages of the child form part of the common 
 fund to maintain the home; |1900] A. C. 35S; 
 Alexander v. Parker, 144 111. 355, 33 N. E. 
 183, 19 L. R_ A. 1S7 (where the term is used 
 with reference to benevolent associations). 
 See Death. 
 
 DEPENDENT PROMISE. One which it is 
 not the duty of the promisor to perform un- 
 til some obligation contained in the same 
 agreement has been performed by the other 
 party. Hainin. Partn. 17, 29, 30, 109 ; Harr. 
 Cont. 152. See Contract; Covenant; Inde- 
 pendent Promise. 
 
 DEPONENT. One who gives information, 
 on oath or affirmation, respecting some facts 
 known to him, before a magistrate or other 
 person entitled to administer an oath ; he 
 who makes a deposition. Bliss v. Shuman, 47 
 Me. 248. See Affiant. 
 
 DEPORTATION. In Roman Law. A per- 
 petual banishment, depriving the banished of 
 his rights as a citizen: it differed from rele- 
 gation (q. v.) and exile (q. v.). 1 Bro. Civ. 
 Law, 125, n.; Inst. 1. 12. 1; Dig. 48. 22. 14. 1. 
 
 In Modern Law. "The removal of an alien 
 out of the country, simply because his pres- 
 ence is deemed inconsistent with the public 
 welfare, and without any punishment beiiig 
 imposed or contemplated, either under the 
 laws of the country out of which he is sent, 
 or under those of the country to which he is 
 taken." Fong Yue Ting v. U. S., 149 U. S. 
 709, 13 Sup. Ct. 1016, 37 D. Ed. 905. It differs 
 from transportation (q. v.), which is by way 
 of punishment of one convicted of an offence 
 against the laws of the country ; and from 
 extradition (q. v.), which is the surrender to 
 another country of one accused of an offence 
 against its laws, there to be tried, and, if 
 found guilty, punished ; id. It is not a crim- 
 inal proceeding ; U. S. v. Hing Quong Chow, 
 53 Fed. 233. 
 
 The right of a nation to expel or deport 
 foreigners who have not been naturalized or 
 taken any steps towards becoming citizens of 
 the country, rests upon the same grounds, 
 and is as absolute and unqualified as the 
 right to prohibit and prevent their entrance 
 into the country ; Fong Yue Ting v. U. S., 
 149 U. S. 69S, 13 Sup. Ct. 1016, 37 L. Ed. 905, 
 which holds, by a divided court, that this 
 right exists even though such persons be 
 subjects of a friendly power and have ac- 
 quired a domicile in this country. This case 
 follows Vattel, Law of Nations § 230; Or- 
 tolan, Dipl. de la Mer 297; 1 Phill. Int. L. 
 § 220; Bar, Int. Law (Gillespie's ed.) 70S. 
 
 None of the guaranties of the United States 
 constitution, first amendment, respeccing 
 freedom to worship, speak, publish or peti- 
 tion, are infringed by the immigration act of 
 March 3, 1903, for the exclusion and deporta- 
 tion of alien anarchists; U. S. v. Williams, 
 194 U. S. 279, 24 Sup. Ct. 719, 48 L. Ed. 979. 
 
 So the child of an alien, born abroad, 
 whose father afterwards comes here and is 
 naturalized, can be excluded and deported if 
 found to be suffering from a contagious dis- 
 ease; Zartariau v. Billings, 204 U. S. 170, 
 27 Sup. Ct. 1S2, 51 L. Ed. 428. 
 
 Deportation is an inherent sovereign pow- 
 er; Tiaco v. Forbes, 228 U. S. 549, 33 Sup. 
 
 Ct. 585, 57 L. Ed. . Congress has the 
 
 power to deport aliens whose presence is 
 deemed hurtful, and this applies to prosti- 
 tutes, regardless of how long they have been 
 here; Bugajewitz v. Adams, 228 U. S. 585, 
 33 Sup. Ct. 607, 57 L. Ed. . 
 
 In England, the only question has been 
 whether deportation could be exercised by 
 the king without the consent of parliament. 
 It was formerly exercised by the king, but 
 in later times by parliament. See 2 Inst. 
 57 ; 1 Bla. Com. 260; 6 Law Quart. Rev. 27. 
 A British colonial governor has exercised it; 
 1 Moore, P. C. 460. See App. Cas. (1891) 272. 
 
 Congress may exercise the power through 
 the executive, or may call in the judiciary 
 to ascertain contested facts ; Fong You Ting 
 v. U. S., 149 U. S. 69S, 13 Sup. Ct. 1016, 37 
 L. Ed. 905. 
 
 See Alien-Labor; Anarchist; Chinese; 
 Citizen ; Naturalization ; Renvoi. 
 
 Under the act of August 18, 1S94, the deci- 
 sion of the secretary of commerce of the 
 right of a person of Chinese descent to enter 
 the United . States is conclusive on the fed- 
 eral courts, though citizenship, and not dom- 
 icil, is the ground on which the right of en- 
 try is claimed; U. S. v. Ju Toy, 19S U. S. 
 253, 25 Sup. Ct. 644, 49 L. Ed. 1040. If he 
 enters unlawfully, he may be deported by 
 the secretary of commerce ; Prentis v. Seu 
 Leung, 203 Fed. 25, 121 C. C. A. 389. 
 
 "Moral turpitude," as ground of exclusion 
 of an alien, means an act of baseness, vile- 
 ness or depravity in the private and social 
 duties which one owes to society, and as ap- 
 plied to offences includes only such crimes as 
 manifest personal depravity or baseness; 
 U. S. v. Uhl, 203 Fed. 152 ; publishing a crim- 
 inal libel against King George V, of which 
 the person seeking entrance had been con- 
 victed and sentenced to one year's imprison- 
 ment in England is not ground of exclusion ; 
 id., affirmed, U. S. v. Uhl, 210 Fed. 860. 
 
 DEPOSE. To deprive an individual of a 
 public employment or office against his will. 
 Wolffius, Inst. § 1063. The term is usually 
 applied to the deprivation of all authority of 
 a sovereign. 
 
 To give testimony under oath. See Depo- 
 sition.
 
 DEPOSIT 
 
 847 
 
 DEPOSIT 
 
 DEPOSIT. A naked bailment of goods 
 to be kept for the depositor without reward, 
 and to be returned when he shall require it. 
 Jones, Bailm. 36, 117; Bellows Falls Bank 
 v. Bank, 40 Vt 380. 
 
 A bailment of goods to be kept by the 
 bailee without reward, and delivered accord- 
 ing to the object or purpose of the original 
 trust Story, Bailm. § 41 ; Richardson v. Fu- 
 trell, 42 -Miss. 544. 
 
 A contract by which one of the contract- 
 ing parties gives a thing to another to 
 who is to do so gratuitously and obliges him- 
 self to return it when lie shall he requested. 
 See 3 L. R. P. C. C. 101. 
 
 An irregular deposit arises where one de- 
 posits money with another fur safekeeping, 
 in eases where the latter is to return. DOl the 
 specific money deposited, hut an equal sum. 
 
 A quasi deposit arises where one comes 
 lawfully into possession of the goods of an- 
 other by finding. 
 
 A depositary is bound to take only ordi- 
 nary care of the deposit, which will of course 
 vary with the character of the goods to he 
 kept, and other circumstances; Edw. Bailm. 
 43. See Vickroy v. Skelley, 14 S. & R. (Pa.) 
 375; Foster v. Bank, 17 Mass. 479, 9 Am. 
 Dec. 16S; Tracy v. Wood, 3 Mas. 132, Fed. 
 Cas. No. 14,130; 1 B. & Aid. 50. While gross 
 negligence on the part of a gratuitous bailee 
 is not fraud, it is in effect the same thing ; 
 First Nat. Bank v. Graham, 100 L. S. 699, 25 
 L. Ed. 750. lie has, in general, no right to 
 use the thing deposited; Bac. Abr. Bailment, 
 D; unless in cases where permission has 
 been given or may from the nature of the 
 case be implied ; Story, Bailm. § 00 ; Jones, 
 Bailm. 80, 81. He is bound to return the de- 
 posit in individuo, and in the same state in 
 which he received it : if it is lost, or injured, 
 or spoiled, by his fraud or gross negligence, 
 he is responsible to the extent of the loss or 
 injury; Jones, Bailm. 36, 46, 120; Foster v. 
 Bank, 17 Mass. 479, 9 Am. Dec. 168 ; Stanton 
 v. Bell, '.» X. O. 145, 11 Am. Dec. 744; 1 Dane, 
 Abr. c. 17, arts. 1 and 2; Hubbell v. Blandy, 
 87 Mich. 209, 40 N. W. 502, 24 Am. St. Rep. 
 154. He is also bound to restore, not only 
 the thin- deposited, but any increase or prof- 
 its which may have accrued from it; if an 
 animal deposited hear young, the latter are 
 to be delivered to the owner; Story, Bailm. 
 § 99. 
 
 In the case of irregular deposits, as those 
 with a hank, the relation of the bank to its 
 customer is that of debtor and creditor, and 
 does not partake at all of a fiduciary char- 
 acter. It ceases altogether to he the money 
 of the depositor, and becomes the money of 
 the bank. It is his to do what he pleases 
 with it. and there is no trust created ; Edw. 
 Bailm. 41, 45; Commercial Rank of Albany 
 v. Hughes. 17 Wend. (X. Y.) 01; 1 Mer. 568; 
 Bank of Marysville v. Brewing Co., 50 Ohio 
 St 151, 33 N. E. 1054, 40 Am. St Rep. 660 ; 
 
 American Exchange Xat Bank v. Gregg, 138 
 ill. 596, 28 X. 1. Am. St. Rep, 171 ; 
 
 Collins v. State, 33 1 ith 214; 
 
 Central Xat. Bank . . 104 U. E 
 
 26 L. Ed 693. See -i >7 X. 
 
 J. Eq. IS. In Law's I Mate, 114 i 
 Atl. S31, 14 L, R. A. L03, it was held to be 
 "a temporary disposition of money for 
 .:." not creating the relation of >. 
 and creditor; nor is it a loan; id.; Elliott 
 v. state Bank, 128 la. 275, II 3 N. W. 777, l 
 L. B. A. (X. Si U30, 111 Am. St. Bep. 1'.'-. If 
 the jury believe from the evidence that the 
 parties intended that a hank should Oi 
 ceive a check as cash, hut only as an 
 for collection, then title to the check 
 not vest in the bank at the time of the 
 posit; layette Xat. Bank v. Summers. 105 
 \ a. 689, 54 S. E. 862, 7 L. R. A. (X. S. 
 
 Where a commission merchant deposits his 
 principal's money in his own account in hank. 
 it cannot he applied to the payment of the 
 former's debt to the bank ; Boyle v. Bank, 125 
 Wis. 498, 103 X. W. 11^::. 104 X. V7. 917, 1 L. 
 R. A. (X. S.) 1110, 110 Am. St. Rep. 814, cit- 
 Lng Union Stock Yards Xat. Bank v. Gilles- 
 pie, 137 U. S. 411, 11 Sup. Ct US, 34 L, Ed 
 71'!. 
 
 As to deposits in savings banks, etc., for 
 another, see Donatio Mortis Cai 
 
 See Check; Inoousement; National 
 Bank. 
 
 The legal remedy is a suit at law for debt: 
 the balance cannot be reached by a bill in 
 equity ; 2 H. L. Cas. 39 ; except in some 
 cases of insolvency, when a fund can be fol- 
 lowed : Voight v. Lewis. 11 Phila. (I'a.i 511, 
 Fed. Cas. No. 16,989. See infra. A bank is 
 not liable for interest unless expressly con- 
 tracted for; and the deposit is subject to 
 the statute of limitations; 2 II. L. ('as. 39; 
 McLoghlin v. Bank. 139 X. Y. 514, 34 X. K. 
 1095. Otherwise, in the case of a certificate 
 of deposit payable on demand; Ilartman's 
 Appeal, 107 Pa. 333. 
 
 The genera] rule that the title passes upon 
 the deposit does not apply when the subject 
 of the deposit is a Bight draft and the hank 
 at the time of the acceptance was insolvent 
 and its officers knew it to be so; St. Louis & 
 S. F. R. Co. v. John-ton. 133 1". S. 566, 1«> 
 Sup. Ct. 300. 33 L. Ed. 683. The acceptance 
 of a deposil by a hank Irretrievably Insolvent 
 will constitute such fraud as will entitle the 
 depositor to his drafts or their proceeds; Id.; 
 Cragie v. Hadley, '■''.' N. V. 131, l x. E. 537, 
 52 Am. Rep. 9; Bruner v. Ban':. :»7 Tenn. 5i0, 
 37 S. W. 286, •"• 1 I- R. A. 532. When c 
 are receive! by a hank hopelessly Insolvent 
 and not collected until after it doses its 
 door-, the owner may recover the checks or 
 their proceeds; City of Somerville v. Beal, 
 19 led. 790; he may rescind the transfer and 
 stop payment of the check: First Xat. Bank 
 of Meridian v. Strauss. 66 Miss, 470, 6 South. 
 -.:-, li Am. St. Bep. 570; or reclaim it from
 
 DEPOSIT 
 
 848 
 
 DEPOSITARY 
 
 the hands of the assignee ; Cragie v. Had- 
 ley, 99 N. Y. 131, 1 N. E. 537, 52 Am. Rep. 9 ; 
 or of a third person who did not give value 
 for it; National Citizens' Bank v. Howard, 
 3 How. Pr. N. Y. (N. S.) 511 ; but not if the 
 check has been turned over to a bona fide 
 purchaser for value ; Grant v. Walsh, 81 
 Hun 449, 31 N. Y. Supp. CO. If the subject 
 of the deposit is money and is in a separate 
 package, the depositor may recover it from 
 the receiver ; In re Commercial Bank, 1 Ohio 
 N. P. 35S; Chaffee v. Fort, 2 Lans. (N. Y.) 
 81; Furber v. Stephens, 35 Fed. 17; but if it 
 has passed into the hands of the assignee 
 and been mingled with the other funds of 
 the bank, and cannot be traced, the depositor 
 is not entitled to a preference ; Lotze v. Hoer- 
 ner, 25 Ohio L. J. 31 ; Wilson v. Coburn, 35 
 Neb. 530, 53 N. W. 466 ; Blake v. Bank, 12 
 Wash. 619, 41 Pac. 909; In re North River 
 Bank, 60 Hun 91, 14 N. Y. Supp. 261. It has 
 been held that if money and checks are de- 
 posited a few minutes before the doors of 
 the bank are closed and the checks are sub- 
 sequently collected, so that the specific mon- 
 ey deposited and the proceeds of the checks 
 come to the hands of the receiver, the own- 
 er may recover them from him. The fact 
 that the money cannot be identified will not 
 prevent its recovery if it is still in the mass 
 in the receiver's hands ; Wasson v. Hawkins, 
 59 Fed. 237, followed in Lake Erie & W. R. 
 Co. v. Bank, 65 Fed. 690. 
 
 Deposits in the civil law are divisible Into two 
 kinds— necessary and voluntary. A necessary de- 
 posit is such as arises from pressing necessity ; as, 
 for instance, in case of a fire, a shipwreck, or other 
 overwhelming calamity ; and thence it is called 
 miserabile depositum. La. Civ. Code 2935. A vol- 
 untary deposit is such as arises without any such 
 calamity, from the mere consent or agreement of 
 the parties. Dig. 16. 3. 2. 
 
 This distinction was material in the civil law in 
 respect to the remedy, for involuntary deposits the 
 action was only in simphim, in the other in duplum, 
 or twofold, whenever the depositary was guilty of 
 any default. The common law has made no such 
 distinction. Jones, Bailm. 48. 
 
 Deposits are again divided by the civil law into 
 simple deposits and sequestrations: the former is 
 when there is but one party depositor (of whatever 
 number composed), having a common interest; the 
 latter is where there are two or more depositors, 
 having each a different and adverse interest. These 
 distinctions do not seem to have become incorpo- 
 rated into the common law. See Story, Bailm. § 41. 
 See Bailment. 
 
 Deposit is sometimes used as equivalent 
 to or in the sense of earnest (q. v.), when 
 made by way of a forfeiture to bind a bar- 
 gain. In such case it is forfeited on a breach 
 "even if as a deposit and in part payment 
 of the purchase money," and it cannot 
 be recovered back unless circumstances 
 make it unequitable to retain it; 53 L. J. 
 Ch. 1061 ; 27 Ch. D. 89. 
 
 See Gift ; Certificate of Deposit. 
 
 DEPOSITARY. A person entrusted with 
 anything by another for safekeeping; a 
 trustee; fiduciary; one to whom goods are 
 
 bailed to be held without recompense. 
 Stand. Diet. 
 
 DEPOSITION. The testimony of a wit- 
 ness reduced to writing, in due form of law, 
 by virtue of a commission or other author- 
 ity of a competent tribunal, or according to 
 the provisions of some statute law, to be 
 used on the trial of some question of fact 
 in a court of justice. Stimpson v. Brooks, 
 3 Blatchf. 456, Fed. Cas. No. 13,454; State 
 v. Dayton, 23 N. J. L. 49, 53 Am. Dec. 270. 
 
 Depositions were not formerly admitted 
 in common-law courts, and were afterwards 
 admitted from necessity, where the oral 
 testimony of a witness could not be obtain- 
 ed. But in courts of chancery this was 
 formerly the only method of taking testi- 
 mony; Ad. Eq. 363. In some of the states, 
 however, both oral testimony and depositions 
 are used, the same as in courts of common 
 law. 
 
 In criminal cases, depositions cannot be 
 used without the consent of the defendant; 
 3 Greenl. Ev. § 11; Dominges v. State, 7 
 Smedes & M. 475, 45 Am. Dec. 315 ; McLane 
 v. State, 4 Ga. 335. This is a necessary 
 consequence of the provision of the constitu- 
 tion of the United States that in all crim- 
 inal prosecutions "the accused shall enjoy 
 the right to be confronted with the witness- 
 es against him." Amend, art. 6. This prin- 
 ciple is recognized in the constitutions or 
 statutes of most of the states of the Union. 
 3 Greenl. Ev. § 11 ; Cooley, Const. Lim. 387. 
 
 In some of the states, provision is made 
 for the taking of depositions by the accused. 
 Conn. Comp. Stat. art. 6, § 162; 3 Greenl. 
 Ev. § 11. 
 
 Provision has been made for taking dep- 
 ositions to be used in civil cases, by an act 
 of congress and by statutes in most of the 
 states. 
 
 U. S. Rev. Stat. §§ 863-S76, direct that when, In 
 any civil cause depending in any district in any 
 court of the United States, the testimony of any per- 
 son shall be necessary who shall live at a greater 
 distance from the place of trial than one hundred 
 miles, or is bound on a voyage to sea, or is about to 
 go out of the United States, or out of such district, 
 and to a greater distance from the place of trial 
 than as aforesaid, before the time of trial, or is an- 
 cient, or very infirm, the deposition of such person 
 may be taken, de bene esse, before any justice or 
 judge of any of the courts of the United States, or 
 any commissioner of a circuit court, or any clerk of 
 a district or circuit court, or before any chancellor, 
 justice, or judge of a supreme or superior court, 
 mayor or chief magistrate of a city, or judge of a 
 county court or court of common pleas of any of the 
 United States, or any notary public, not being of 
 counsel or attorney to either of the parties, or in- 
 terested in the event of the cause ; provided that a 
 notification in writing from the party or his attor- 
 ney, to the adverse party, to be present at the tak- 
 ing of the same, and to put interrogatories, if he 
 think fit, be first made out and served on the adverse 
 party, or his attorney, as either may be nearest. 
 And in all cases in rem, the person having the agen- 
 cy or possession of the property at the time of the 
 seizure shall be deemed the adverse party until a 
 claim shall have been put in; and whenever, by rea- 
 son of the absence from the district, and want of an
 
 DEPOSITION 
 
 849 
 
 DEPOSITION 
 
 attorney of record, or other reason, the giving of the 
 notice herein required shall be Impracticable, it shall 
 be lawful to take such depositions as there shall be 
 urgent necessity for taking, upon such notice, as 
 any judge authorized to hold courts in such circuit 
 or district shall think reasonable and direct Any 
 person may be compelled to appear and depose, as 
 provided by this section, In the same manner as 
 witnesses may be compelled to appear and testify 
 in court. And every person deposing as aforesaid 
 shall be carefully examined and cautioned, and 
 sworn or affirmed to testify to the whole truth, and 
 shall subscribe the testimony by him or her given, 
 after the same shall be reduced to writing, which 
 shall be done only by the magistrate taking the dep- 
 osition, or by the deponent in his presence. And 
 the depositions so taken shall be retained by such 
 magistrate until he deliver the same with his own 
 hand into the court for which they are taken, or 
 shall, together with a certificate of the reasons as 
 aforesaid of their being taken, and of the notice, if 
 any given, to the adverse party, be by him the said 
 magistrate sealed up and directed to such court, and 
 remain under his seal until opened in court. But 
 unless it appears to the satisfaction of the court 
 that the witness is then dead or gone out of the 
 United States, or to a greater distance than one 
 hundred miles from the place where the court is 
 siting, or that, by reason of age, sickness, bodily in- 
 firmity, or imprisonment, he is unable to travel and 
 appear at court, such deposition shall not be used 
 in the cause. Provided that nothing herein shall be 
 construed to prevent any court of the United States 
 from granting a dedimus potestatem, to take depo- 
 sitions according to common usage, when it may be 
 necessary to prevent a failure or delay of justice,— 
 which power they shall severally possess ; nor to 
 extend to depositions taken in perpetuam rei memo- 
 riam, which, if they relate to matters that may be 
 cognizable in any court of the United States, a cir- 
 cuit court, on application thereto, made as a court 
 of equity, may, according to the usages in chan- 
 cery, direct to be taken. 
 
 In any cause before a court of the United States, 
 it shall be lawful for such court, In its discretion to 
 admit in evidence any deposition taken in perpetuam 
 rei memoriam, which would be so admissible in a 
 court of the state wherein such cause is pending, 
 according to the laws thereof. 
 
 The act of January 24, 1827, authorizes the clerk 
 of any court of the United States within which a 
 witness resides, or where he is found, to issue a 
 subpoena to compel the attendance of such witness ; 
 and a neglect of the witness to attend may be pun- 
 ished by the court whose clerk has issued the sub- 
 poena, as for a contempt. And when papers are 
 wanted by the parties litigant, the judge of the 
 court within which they are may issue a subpoena 
 duces tecum, and enforce obedience by punishment 
 as for a contempt. R. S. §§ SG3-S75 ; see Blease v. 
 Garlington, 92 U. S. 1, 23 L. Ed. 521 ; Bates Fed. 
 Eq. Proc. 
 
 No witness shall be required, under the provisions 
 of either of the two preceding sections, to attend 
 at any place out of the county where he resides, 
 nor more than forty miles from the place of his res- 
 idence, to give his deposition, nor shall any witness 
 be deemed guilty of contempt for disobeying any 
 subpoena directed to him by virtue of either of the 
 said sections, unless his fee for going to, returning 
 from, and one day's attendance at the place of ex- 
 amination are paid or tendered to him at the time 
 of the service of the subpoena. See R. S. § 87 <\ etc. 
 R. S. § 863, above quoted, relating to depositions 
 de bene esse, applies to equity as well as to com- 
 mon-law causes; Stegner v. Blake, 36 Fed. 1S3. 
 When a party is represented by counsel at the tak- 
 ing of a deposition and takes part In the examina- 
 tion, that must be regarded as a waiver of irregu- 
 larities in taking it; Northern Pac. R. Co. v Urlin, 
 158 U. S. 271, 15 Sup. Ct. 840, 39 L. Ed. 977 ; and after 
 having been read in evidence, without objection, its 
 regularity cannot afterwards be challenged ; Evans 
 v. Hettich. 7 Wheat (U. S.) 453, 5 L. Ed. 496; Brown 
 T. Tarkington, 3 Wall. (U. S.) 377. 18 L. Ed. 255. 
 
 Bouv.— 54 
 
 Objections must be taken, and noted at the time, 
 to the competency of a witness; Shutte v. Thomp- 
 son, 16 Wall. (U. S.) 161, 21 !.. Bd. 123 . or to irregu- 
 larities or defects which might have been remedied 
 by retaking the dep | objec- 
 
 tions must be raised when the deposition i 
 or on motion to suppress and not at th-- trial ; 
 Doane v. Glenn, 21 Wall. (U. B.) 38, 22 L. i. 
 Bibb v. Allen, 149 U. S. 481, 13 Sup CI 
 Ed. 819; York Mfg. Co. v. R. Co 
 
 107. 18 L. Ed. 170 ; unless the Urn- return 
 
 and before trial is too brief; id.; otherwise they 
 
 Ived; Howard v. Mfg. Co.. 139 I 
 Sup. Ct. 500, 35 L. Ed. 147; Clogg iel! 89 
 
 Md. (20, 43 Atl. 795; American Pub. I 
 Mayne Co., 9 Utah, 821, 84 ] r Pine 
 
 Lumber Co. v. Garrett, 28 Or. 171, 42 Pa 
 
 A deposition de bene esse cannot be read, if 
 ed to, if the it in court; W 
 
 v. Clark County, 119 U. S. 522, 7 Sup. CI 
 Ed. 500; or can be produced; The Samu 
 (U. S.) 9, 4 L. Ed. 23; or. If an away-going witness, 
 a subpoena fa a taken out and eiiort made 
 
 to serve it; .Mifflin v. Bingham, 1 Dall. (U. S. 
 L. Ed. 133; and it must be shown that t; 
 ability to attend continues; Pa Co. v. 
 
 Southgate, 5 Pet (U. S.) 604, 8 L. cross- 
 
 examination is a waiver of objection to th- 
 larlty of the deposition; Mechanics' Bank v. 
 1 Pet. (U. S.) 299, 7 L. B L 162 : Noi 
 R. Co. v. Urlin, 158 U. S. 274. 15 Sup. Ct. 840, 39 L. 
 Ed. 977; but not to the con.i 
 Mifflin v. Bingham, 1 Dall. (U. S.) 272, 1 L. Ed. 133. 
 
 A clerical mistake in making out a com- 
 mission, which in no way misled the 
 site party or affected his rights, is no ralld 
 ground for the suppression of the deposi 
 tion; P»ibb v. Allen, 149 F. S. 481, 13 
 Ct. 950, 37 L. Ed. S19. If the deponent is 
 not satisfied with his first deposition, it is 
 his right, without any order of the court, 
 to make a second one; Nash v. Williams. 20 
 Wall. (U. S.) 226, 22 I.. Ed. 254. The sub- 
 jecl was fully considered by Shipman. 0. J., 
 in White v. R. Co., 79 I ■'• d. 133, 24 
 407. The judiciary act of 17S0 provided for 
 the examination of witnesses in open court 
 in equity as well as at law. The act of 
 April 29, 1S02, provided that testimony in 
 equity might be taken by depositions In 
 states where that was the practice. The 
 act of August 23, 1S42. empowered the Su- 
 preme Court to make rules for taking testi- 
 mony. Tbe former G7th Rule in Equity 
 was formulated in 1861. As amended it • 
 larged the statutory practice and provided 
 for taking equity evidence orally or by b 
 cial examiners and for securing the attend- 
 ance of witnesses, which may be compelled 
 by the court of a district to which the ex- 
 aminer is sent. Si e Stevens v. R. Co.„ 
 104 Fed. 934. The Judge of such district 
 may pass on the materiality of evidence and 
 compel answers: In re Allis 44 Fed. 2 
 
 The United States act ot" March 9. 1892, 
 authorizing depositions to be taken in the 
 mode prescribed by the state laws, merely 
 provided an additional method and did not 
 confer any additional- rights to take testi- 
 mony; National Cash Register Co. v. Le 
 land. 77 Fed. 242. 
 
 Reasonable notice under R, S. gg 863, B65 
 depends upon the circumstances of the par
 
 DEPOSITION 
 
 850 
 
 DEPOSITION 
 
 ticular case ; distance, number of witnesses, 
 and facility of communication are chiefly 
 important; American Exch. Nat. Bank v. 
 Nat. Bank, 82 Fed. 961, 27 C. C. A. 274. 
 Notice of taking proofs in three different 
 states on the same day is not reasonable; 
 Eillert v. Craps, 44 Fed. 792. 
 
 A subpoena duces tecum may issue to a 
 witness whose testimony is to be taken un- 
 der R. S. § 863; Davis v.. Davis, 90 Fed. 791. 
 
 In connection with question of adjourn- 
 ment on the ground that counsel cannot at- 
 tend, it was said in Uhle v. Burnham, 44 
 Fed. 729, that the law does not contemplate 
 that a litigant shall be required to go to the 
 expense of hiring numerous counsel to rep- 
 resent him. An examiner may adjourn a 
 meeting for illness and absence; Shapleigh 
 v. Light & Power Co., 47 Fed. 848. 
 
 A witness may test the validity of pro- 
 ceedings by refusing to be sworn. He is 
 then in contempt and his rights will be con- 
 tested under contempt procedure; In re 
 Spofford, 62 Fed. 443. 
 
 In taking depositions de bene esse in an- 
 other district under R. S. § S63, the witness 
 may assert his privilege of refusing to tes- 
 tify or produce documents, and in such a 
 case he has the right to be heard before the 
 court of that district Taking depositions 
 before an examiner in equity is not a ju- 
 dicial trial ; the public have no right to be 
 present; U. S. v. Shoe Machinery Co., 19S 
 Fed. 870. 
 
 A deposition is not admissible in evidence 
 if the witness was not sworn till after his 
 testimony was reduced to writing; Arm- 
 strong v. Burrows, 6 Watts (Pa.) 266, per 
 Gibson, C. J. 
 
 See Street, Fed. Practice. 
 
 The new Equity Rules of the Supreme 
 Court of the United States have consider- 
 ably changed the practice. In all equity 
 trials the testimony is to be taken orally, 
 in open court, except as otherwise provided 
 by statute or other rules. The court may 
 permit the deposition of named witnesses to 
 be used before the court or upon a refer- 
 ence to a master to be taken before an ex- 
 aminer, etc. The district court may order 
 that the testimony in chief of expert wit- 
 nesses may be set forth in affidavits, with 
 the right of cross-examination and re-exam- 
 ination before the court at the trial. See 
 Expert. 
 
 Objections to the evidence before an ex- 
 aminer, etc., must be in short form. The 
 testimony of each witness, after being re- 
 duced to writing, must be read over to or 
 by him and be signed by him in the presence 
 of the officer. If the witness refuses to 
 sign, the officer shall sign 7 the deposition, 
 stating thereon the reason for refusal. Ob- 
 jections to questions must be noted by the 
 officer, but he is without power to pass on 
 competency, etc. 
 
 Where witnesses live within the district, 
 whose testimony may be taken out of court 
 by the rules, they may be summoned before 
 a commissioner or master or examiner. 
 Their refusal to appear is contempt of court 
 and an attachment may thereupon issue as 
 in the case of contempt for not attending 
 or for refusing to give testimony in court. 
 
 In a state criminal trial in Louisiana, 
 reading a deposition taken before a com- 
 mitting magistrate in the presence of the 
 accused, and subject to his counsel's cross- 
 examination, the witness being permanently 
 absent from the state, does not deprive the 
 accused of his liberty without due process ; 
 West v. Louisiana, 194 U. S. 258, 24 Sup. Ct. 
 650, 48 L. Ed. 965. 
 
 In Ecclesiastical Law. The act of depriving 
 a clergyman, by a competent tribunal, of his 
 clerical orders, to punish him for some of- 
 fence and to prevent his acting in future in 
 his clerical character. Aylift'e, Parerg. 206. 
 
 DEP0SIT0. In Spanish Law. A real con- 
 tract by which one person confides to the 
 custody of another an object on the condi- 
 tion that it shall be returned to him when- 
 ever he shall require it. 
 
 DEPOSITOR. He who makes a deposit. 
 
 DEPQSITUM. A species of bailment See 
 Deposit. 
 
 DEPOT. Within the meaning of statutes 
 obliging railroad companies to fence their 
 tracks excepting depot grounds, mere dis- 
 tance from depots has been held not to be 
 the controlling consideration in determin- 
 ing how far they extend ; Rabidon v. R. Co., 
 115 Mich. 390, 73 N. W. 386, 39 L. R. A. 
 405. Public convenience is held to be the 
 limit of such an exception; Greeley v. Ry. 
 Co., 33 Minn. 136, 22 N. W. 179, 53 Am. Rep. 
 16. They may include the terminals and 
 switch stands of all switches or side tracks 
 at all stations; Gulf, C. & S. F. Ry. Co. v. 
 Blankenbeckler, 13 Tex. Civ. App. 249, 35 
 S. W. 331 ; ground necessary to take in wood 
 and water ; Fowler v. Loan Co., 21 Wis. 77 ; 
 Jeffersonville, M. & I. R. Co. v. Beatty, 36 
 Ind. 19; Harvey v. Southern Pac. Co., 46 Or. 
 505, 80 Pac. 1061; or for switches; Illinois 
 Cent R. Co. v. Finney, 42 111. App. 390; a 
 tract of five or six acres has been held to be 
 included in depot grounds; Davis v. R. Co., 
 26 la. 549. 
 
 A place where military supplies and stores 
 are kept. Caldwell's Case, 19 Wall. (U. S.) 
 264, 22 L. Ed. 114. 
 
 DEPRIVATION. A censure by which a 
 clergyman is deprived of his parsonage, vi- 
 carage, or other ecclesiastical promotion or 
 dignity. See Ayliffe, Parerg. 206; 1 Bla. 
 Com. 393. See Degradation. 
 
 DEPRIVE. Referring to property taken 
 under the power of eminent domain, it 
 means the same as "take." Sharpless v.
 
 DEPRIVE 
 
 851 
 
 DERELICT 
 
 Mayor of Philadelphia, 21 Pa. 167, 59 Am. 
 Dec. 759. 
 
 The constitution contains no definition of 
 this word "deprive" as used in the Four- 
 teenth Amendment. To determine its sig- 
 nification, therefore, it is necessary to as- 
 certain the effect which nsage lias given it, 
 when employed In the same or a like con- 
 nection ; Munn v. Illinois, 94 U. S. 123, 24 L. 
 Ed. 77. See Dt - of Law; Emini m 
 
 Domain; Privileges and Immunite j; I oi a 
 teenth Amendment. 
 
 DEPUTY. One authorized by an officer 
 to exercise the ollice or right which the olii- 
 cer possesses, for and in place of the latter. 
 
 In general, ministerial officers can appoint 
 deputies, Comyns, Dig. Officer (D 1), unless 
 the office is to be e by the ministe- 
 
 rial ollicer in person; and when the 
 partakes of a judicial and ministerial char- 
 acter, although a deputy may be made for 
 the performance of ministerial acts, one can- 
 not be made for the performance of a ju- 
 dicial act; a sheriff cannot, therefore, make 
 a deputy to hold an inquisition, under a writ 
 of inquiry, though he may appoint a deputy 
 to serve a writ. Sometimes, however, 
 eral deputy or under-sheriff is appointed, 
 who possesses, by virtue of his appointment. 
 authority to execute all the ordinary duties 
 of sheriff, and may even appoint, in the 
 name of the sheriff, a special deputy; Allen 
 v. Smith, 12 N. J. L. 109 ; Tillotson v. Cheet- 
 ham, 2 Johns. (N.'Y.) 63. 
 
 In general, a deputy has power to do every 
 act which his principal might do; but a 
 deputy cannot appoint a deputy. See 
 Ahrams v. Ervin, 9 la. 87; Lewis v. Lewis. 
 9 Mo. 183, 43 Am. Dec. 540; Confiscation 
 Cases, 20 Wall. (U. S.) Ill, 22 L. Ed. 820. 
 
 A deputy should always act in the name 
 of his principal. The principal is liable for 
 the deputy's acts performed by him as such, 
 and for the neglect of the deputy; :i Dane, 
 Abr. c. 76, a. 2; and the deputy is liable 
 himself to the person injured for his own 
 tortious acts; Dane. Abr. index: Com. Dig. 
 Officer (D), Viscount (B). See 7 Viner, Abr. 
 556; L. R. 3 Q. B. Div. 741; AYillis v. Melvin. 
 53 N. C. 62. 
 
 DERAIGN. The literal meaning of the 
 word seems to he, to disorder or displace, 
 as deraignment out of religion; stat 31, 
 Hen. YllI, c. 6. But it is generally used in 
 the common law for to prove, as, to deraign 
 the warranty; (ilanv., li!>. *_', C, 6. See Jacob 
 L. Diet., where the word is discussed. It is 
 used as referring to a decree "which de- 
 raigns his title from a false source." Paxson 
 v. Brown, 61 Eed. 874, 884, 10 C. C. A. 135. 
 
 DERELICT. Abandoned; deserted; cast 
 away. 
 
 Land left uncovered by the receding y<( wa- 
 ter from its former bed. 2 Rolle, Abr. 170; 
 2 Bla. Com. 262; 1 Crabb, It. P. lU'J. 
 
 Personal property abandoned or thrown 
 away by the owner in such manner ;. 
 indicate that he intends to m irther 
 
 claim thereto. L' !: 
 
 Broom, Max. 261 ; ' v. Tappnn. 1 
 
 Ohio 81; Jones's A'dm'rs v. Nunn, 1_ 
 47.:. 
 
 Dereliction or renunciatioi 
 quires both the intention I 
 temai action. ThUi 
 
 of articles in a ship 
 
 is not dereliction, as tl 
 of abandoning the property in ; 
 salvage. Nor does the mere Intention of 
 abandonment constitute dereli I '■■ a 
 erty without a throwing away or removal, 
 or son external acts; Llvermore v. 
 
 White. 71 Me. 455, 43 Am. Rep. 6 
 
 It applies as well to property abandoned 
 at sea as on land; Etowe v. The r>rig, 1 
 .Mas. .-it::. Fed. Cas. No. 12,093 ; ilous, 
 
 1 Sumn. 207, Eed. Cas. No. I Bos 
 
 ton, l Sumn. ::.:•;. Fed. Cas. No. 1,673; - 
 Kent .".."7. A vessel which is abandoned and 
 ed by her crew without any purpose 
 on their part of returning to the snip, or 
 any hope of saving o >'i~ it by their 
 
 own exertions, is derelict; 20 E. L. & Eq. 
 607; Mason v. The Blaireau, - 
 240, 2 L. Ed. 266; The John Gilpin, <•!■■. 77. 
 Fed. Cas. No. 7,345; Evans v. The Char 
 Newb. ^L'O, Fed. Cas. No. 4,556; BJ 
 v. The T. I*. Leathers. 1 Newb. 421, 
 No. 9,7:;6; The Attacapas, :; Wart 
 Cas. No. G.:7; The Laura, 11 Wall. ^U. S.) 
 336, 20 L. Ed. S13. 
 
 The title of the owner to property lying 
 at the bottom of the sea is not div. 
 however long it may remain there; Murphy 
 v. Dunham, 38 led. ;."" : "because 
 lying at the bottom, they always await their 
 owner;" id.; after another has taken them. 
 the owner must follow them within a year 
 and a day: id.; 5 Co. 105; 1 B. & Ad. 141. 
 where the law is fully discussed; 3 Black 
 Book. Adm. 439. 
 
 A vessel at least six miles from shore sub- 
 .; from midship to bow. her running 
 rigging overboard and snarled Cast, her boat 
 -one. her cabin, etc., full of water, a <! 
 flag set. and deserted by her crew, who had 
 left no sign of an intention to return and 
 were not visible, is prima facit derelict. 
 though she was anchored and her master 
 was intending to return to save her and had 
 telegraphed for a wrecking vessel; The Ann 
 L. Lockwoi 'l. ••'.7 Fed. 233. 
 
 However long goods thrown overboard may 
 have been on the ocean, they do not become 
 derelict by time, but will be restored on the 
 payment of salvage, unless there was a vol- 
 untary intention to abandon them; Bee 82 
 The finder can only held possession to enforce 
 a lien for salvage; WhitweD v. "Wells. 21 
 Pick. iMass.) 30. See Salvage; Abandon- 
 ment.
 
 DERIVATIVE 
 
 852 DESCENT AND DISTRIBUTION 
 
 DERIVATIVE. Coming from another; 
 taken from something preceding ; secondary ; 
 as, derivative title, which is that acquired 
 from another person. 
 
 There is considerable difference between an orig- 
 inal and a derivative title. When the acquisition is 
 original, the right thus acquired to the thing be- 
 comes property, which must be unqualified and un- 
 limited, and, since no one but the occupant has any 
 right to the thing, he must have the whole right of 
 disposing of it. But with regard to derivative ac- 
 quisition it may be otherwise ; for the person from 
 whom the thing is acquired may not have an unlim- 
 ited right to it, or he may convey or transfer it 
 with certain reservation of right Derivative title 
 must always be by contract. 
 
 Derivative conveyances are those which 
 presuppose some precedent conveyance, and 
 serve only to enlarge, confirm, alter, restrain, 
 restore, or transfer the interest granted by 
 such original conveyance. 3 Bla. Com. 324. 
 
 DEROGATION. The partial abrogation of 
 a law. To derogate from a law is to enact 
 something which impairs its utility and 
 force ; to abrogate a law is to abolish it en- 
 tirely. 
 
 DEROGATORY CLAUSE. A sentence or 
 secret character inserted in a will by the 
 testator, of which he reserves the knowledge 
 to himself, with a condition that no will he 
 may make thereafter shall be valid, unless 
 this clause be inserted word for word. This 
 is done as a precaution against later wills 
 being extorted by violence or otherwise im- 
 properly obtained. Whart. 
 
 DESAFUERO. In Spanish Law. An ir- 
 regular action committed with violence 
 against law, custom, or reason. 
 
 DESCEND. To pass by succession; aa 
 when the estate vests by operation of law 
 in the heirs immediately upon the death of 
 the ancestor. Dove v. Torr, 128 Mass. 40. 
 See Descent and Distribution. 
 
 DESCENDANTS. Those who have issued 
 from an individual, including his children, 
 grandchildren, and their children to the re- 
 motest degree. Ambl. 327 ; 2 Bro. C. C. 30, 
 230; 1 Roper, Leg. 115. 
 
 The descendants from what is called the 
 direct descending line. The term is opposed 
 to that of ascendants. 
 
 There is a difference between the number of as- 
 cendants and descendants which a man may have ; 
 every one has the same order of ascendants, though 
 they may not be exactly alike as to numbers, be- 
 cause some may be descended from a common an- 
 cestor. In the line of descendants they fork differ- 
 ently according to the number of children, and con- 
 tinue longer or shorter as generations continue or 
 cease to exist. Many families become extinct, while 
 others continue: the line of descendants is, there- 
 fore, diversified in each family. 
 
 DESCENT AND DISTRIBUTION. The di- 
 vision among those legally entitled thereto 
 of the real and personal property of intes- 
 tates, the term descent being applied to the 
 former and distribution to the latter. De- 
 scent is the devolution of real property to 
 the heir or heirs of one who dies intestate; 
 
 the transmission by succession or inherit- 
 ance. 
 
 Title by descent is the title by which one 
 person, upon the death of another, acquires 
 the real estate of the latter as his heir at 
 law. 2 Bla. Com. 201 ; Com. Dig. Descent. 
 
 It was one of the principles of the feudal 
 system that on the death of the tenant in 
 fee the land should descend, and not ascend. 
 Hence the title by inheritance is in all cases 
 called descent, although by statute law the 
 title is sometimes made to ascend. 
 
 The English doctrine of primogeniture, by 
 which by the common law the eldest son 
 takes the whole real estate, has been uni- 
 versally abolished in this country. So, with 
 few exceptions, has been the distinction be- 
 tween male and female heirs. 
 
 The rules Of descent are applicable only to 
 real estates of inheritance. Estates for the 
 life of the deceased, of course, terminate on 
 his death; estates for the life of another are 
 governed by peculiar rules. 
 
 Distribution is the division by order of 
 the court or legal representative having au- 
 thority, among those entitled thereto, of the 
 residue of the personal estate of an intes- 
 tate, after payment of the debts and charges. 
 The term is sometimes used to denote the 
 division of a residue of both real and per- 
 sonal estate, and also the division of an es- 
 tate according to the terms of a will, but nei- 
 ther use is accurate, the term being tech- 
 nically applied only to personal estate. 
 
 The title to real estate vests in the heirs 
 by the death of the owner ; the legal title to 
 personal estate, by such death, vests in the 
 executor or administrator, and is transfer- 
 red to the persons beneficially interested, by 
 the distribution; Roorbach v. Lord, 4 Conn. 
 347. 
 
 Terms of years, and other estates less than 
 freehold, are regarded as personal estate, 
 and, on the death of the owner, vest in his 
 executor or administrator. 
 
 The rules of descent and distribution are 
 prescribed by the statute laws of the several 
 states; and, although they correspond in 
 some respects, it is doubtful whether ha any 
 two they are precisely alike. 
 
 As to the right of a murderer to take by 
 descent from his victim, see Mubdek. And 
 see, generally, Next of Kin; Kindred; Heir; 
 Executors and Administrators. 
 
 DESCENT CAST. Another name for what 
 the older writers called a "descent which 
 tolls entry." When a person had acquired 
 land by disseisin, abatement, or intrusion, 
 and died seised of the land, the descent of 
 it to his heir took away or tolled the real 
 owner's right of entry, so that he could 
 only recover the land by an action. Co. 
 Litt. 237 6; Rap. & L. Diet. 
 
 DESCENT OF CROWN LANDS. All 
 lands whereof the king is seised in jure 
 coronce attend upon and follow the crown ; so
 
 DESCENT OF CROWN LANDS 
 
 853 
 
 DESCRIPTION 
 
 that to whomsoever the crown descends 
 those lands and possessions descend also. 
 And if the heir of the crown be attainted 
 of treason, yet shall the crown descend to 
 him, and without any reversal the attainder 
 is avoided. Plowd. 247; Co. Litt. 15. 
 
 DESCENT OF DIGNITIES. A dJ 
 differs from common Inheritances, and goes, 
 
 not according to the rules of the common 
 law, for it descends to the half-blood, and 
 there is no co-partnership in it, but the 
 eldest takes the whole. Co. Litt. 27. 
 
 DESCRIPTIO PERSON /E. Description of 
 the person. In wills, it frequently happens 
 that the word heir is used as a deacriptio 
 persona: it is then a sufficient designation of 
 the person. In criminal cases, B mere de- 
 8Criptio persona or addition, if false, can be 
 taken advantage of only by plea in abate- 
 ment; Com. v. Lewis, 1 Mete. (Mass.) 151. 
 A legacy "to the eldest son" of A would be 
 a designation of the person. See 1 Roper, 
 Leg. c. 2. 
 
 The description contained in a contract 
 of the persons who are parties thereto. 
 
 In all contracts under seal there must be 
 some designatio persona. In general, the 
 names of the parties appear in the body of 
 the deed, "between A B, of, etc., of the one 
 part, and CD, of, etc., of the other part," 
 being the common formula. But there is a 
 sufficient designation and description of the 
 party to be charged if his name is written 
 at the foot of the instrument; 1 Ld. Raym. 
 2; 1 Salk. 214; 2 B. & P. 339. 
 
 When a person is described in the body of 
 the instrument by the name of James, and 
 he signs the name of John, on being sued 
 by the latter name he cannot deny it; 3 
 Taunt. 505; Cro. Eliz. 897, n. (a). See 11 Ad. 
 & E. 594; 3 P. & D. 271. 
 
 DESCRIPTION. An account of the acci- 
 dents and qualities of a thing. Ayliffe, Pand. 
 60. 
 
 A written account of the state and condi- 
 tion of personal property, titles, papers, and 
 the like. It is a kind of inventory, but is 
 more particular in ascertaining the exact 
 condition of the property, and is without any 
 appraisement of it. 
 
 In Pleading. One of the rules which regu- 
 late the law of variance is that allegations 
 of matter of essential description should be 
 proved as laid. It is impossible to explain 
 with precision the meaning of these words ; 
 and the only practical mode of understand- 
 ing the extent of the rule is to examine some 
 of the leading decisions on the subject, and 
 then to apply the reasoning or ruling contain- 
 ed therein to other analogous cases. With 
 respect to criminal law, it is clearly estab- 
 lished that the name or nature of the prop- 
 erty stolen or damaged is matter of essen- 
 tial description. Thus, for example, if the 
 charge is one of firing a stack of hay, and 
 it turns out to have been a stack of wheat, 
 
 or if a man Is aceu a ling a drake. 
 
 and it is proved to have been a 
 even a duck, the variance is fatal. 1 I 
 Ev. § 233; Steph. Cr. Proc 177. 
 
 The strict rule of pleading which former- 
 ly required exact accuracy in the description 
 of premises sought to 
 relaxed, and a genet il des xiption b< 
 be good. The provisions of state si: 
 as to the description of the 
 and bounds have been held to be only d 
 tory, and a description by name whe; 
 property is well known is often suffic 
 
 C Mountain Silver Min. Co. v. Willis. 
 127 D. S. 1M), 8 Sup. Ct. 1217, 32 L. Ed. 171'. 
 
 See Boundary. 
 
 DESERTION. An offence which co- 
 in the abandonment of the public service, in 
 the army or navy, without l( 
 
 An absence without leave, with the i 
 tion of returning, will not amount to d 
 tion: Inhabitants of Hanson v. Inhabitants 
 of South Scltuate, 115 M 
 v. Tunison, 2 Sumn. .:7::. Fed. <'as. No. 2,907; 
 Collin v. Jenkins, 3 Sto. 108. Fed. 
 2.94S. An unauthorized absenting of himself 
 from the military service by an offlo 
 soldier with the intention of not retn. 
 It may consist in an original absenting with- 
 out authority, or in an overstayhfg of a de- 
 fined leave of a Davis Mil. L. 4U<i. 
 To establish the I he fact of the unau- 
 thorized voluntary withdrawal, and t!. 
 tent permanently to abandon the se 
 must both be proved; Dig. J. Adv. <;. a 
 
 In the navy absence without leave, with 
 a probability that the person does not intend 
 to desert, Shall at first be regarded as stran- 
 gling, but at the end of ten days as deser- 
 tion. Reg. Navy 815. 
 
 A deserter from the navy is. upon convic- 
 tion, forever incapable of holding any of- 
 fice of trust or profit under the United 
 or of exercising any rights of citizens 
 thereof. R. S. |S 1996, 1998. In time of 
 war. the punishment may he death, or as 
 the court-martial may adjudge, and in time 
 of peace, the above. 
 
 The act by which a man abandons his wife 
 and children, or either of them. 
 
 Wilful desertion, as the term is applied in 
 actions for divorce, is the voluntary separa- 
 tion of one of the married patties from the 
 other, or tin- voluntary refusal to renew a 
 suspended cohabitation, without justifica- 
 tion either in the consent or wrongful con- 
 duct of the other. Slsemore v. Slsemore, 17 
 or. .Ml'. -1 Pac. 820. If the wife leaves the 
 husband in consequence of a mere expres- 
 sion on his part that she can go where she 
 and refuses to return at his request, 
 the husband is not guilty of desertion; Si 
 L. T. 272 : »;.-. J. P. 246. 
 
 On proof of desertion, the courts possess 
 the power under statute, in many Stat 
 compel support of the wife. And a con- 
 tinued desertion by either husband or wife.
 
 DESERTION 
 
 854 
 
 DESERTION 
 
 after a certain lapse of time, entitles the 
 party deserted to a divorce, in most states. 
 There must, however, be an actual and 
 intentional withdrawal from matrimonial co- 
 habitation for a statutory period, against 
 the consent of the abandoned party and 
 without justification; Tiffany, Dom. Kel. 181; 
 and an intention to desert in the mind of tbe 
 offender; Bennett v. Bennett, 43 Conn. 313; 
 Latham v. Latham, 30 Gratt. (Va.) 307; Ap- 
 peal of Sowers, 89 Pa. 173; Bish. Mar. Div. 
 & Sep. 1687; 5 Q. B. D. 31; Bradley v. 
 Bradley, 160 Mass. 25S, 35 N. E. 482; where 
 parties continue to live together as husband 
 and wife and other marital duties are ob- 
 served, a refusal to occupy the same bed 
 does not by itself constitute desertion ; Segel- 
 baum v. Segelbaum, 39 Minn. 258, 39 N. W. 
 492. 
 
 Desertion is established by proof of a re- 
 fusal to commence cohabitation; Pilgrim v. 
 Pilgrim, 57 la. 370, 10 N. W. 750 ; a refusal 
 to renew cohabitation, on request of the oth- 
 er party; Hanberry v. Hanberry, 29 Ala. 719; 
 Fellows v. Fellows, 31 Me. 342; Newing v. 
 Newing, 45 N. J. Eq. 498, 18 Atl. 166; Wil- 
 liams v. Williams, 130 N. Y. 193, 29 N. E. 
 98, 14 L. R. A. 220, 27 Am. St. Rep. 517; 
 Sowers's Appeal, 89 Pa. 173 ; causing a sep- 
 aration, by driving the other away, or by 
 cruel conduct which has that effect; 14 Ct. of 
 Sess. Cas. (4th Series) 443; Kinsey v. Kinsey, 
 37 Ala. 393 ; Johnson v. Johnson, 125 111. 510, 
 16 N. E. 891; Shrock v. Shrock, 4 Bush (Ky.) 
 682; Lynch v. Lynch, 33 Md. 328; Lea v. 
 Lea, 99 Mass. 493, 96 Am. Dec. 772 ; Warner 
 v. Warner, 54 Mich. 492, 20 N. W. 557; Mc- 
 Vickar v. McVickar, 46 N. J. Eq. 490, 19 Atl. 
 249, 19 Am. St. Rep. 422; a refusal by the 
 wife to follow the husband when he changes 
 his residence; Hardenbergh v. Hardenbergh, 
 14 Cal. 654; Kennedy v. Kennedy, S7 111. 250; 
 Hunt v. Hunt, 29 N. J. Eq. 96 ; Beck v. Beck, 
 163 Pa. 649, 30 Atl. 236; Franklin v. Frank- 
 lin, 190 Mass. 349, 77 N. E. 48, 4 L. R. A. (N. 
 S.) 145, 5 Ann. Cas. 851; Schuman v. Schu- 
 man, 93 Mo. App. 99; unless there be good 
 reason; Buell v. Buell, 42 Wash. 277, 84 
 Pac. 821 ; the mere refusal is not enough ; 
 Horn v. Horn, 17 Pa. Super. Ct. 486. But 
 a separation by mutual consent is not deser- 
 tion; Beller v. Beller, 50 Mich. 49, 14 N. W. 
 696;- Cbipchase v. Chipchase, 48 N. J. Eq. 
 549, 22 Atl. 5S8; Ingersoll v. Ingersoll, 49 
 Pa. 249, 88 Am. Dee. 500; Throckmorton v. 
 Throckmorton, 86 Va. 768, 11 S. E. 2S9; 
 Thompson v. Thompson, 53 Wis. 153, 10 N. 
 W. 166; neither is non-eohabitation; Jones v. 
 Jones, 13 Ala. 145; Pidge v. Pidge, 3 Mete. 
 (Mass.) 257; Scott v. Scott, Wrigbt (Ohio) 
 469; Burk v. Burk, 21 W. Va. 445: to render 
 it desertion withdrawal of consent must be 
 shown; Currier v. Currier, 68 N. J. Eq. 797, 
 64 Atl. 1133; nor a refusal by the husband to 
 follow the wife to a new residence: for it is 
 her duty to follow him; Frost v. Frost, 17 
 N. H. 251. 
 
 Mere non-support is not always desertion; 
 Bourquin v. Bourquin, 33 N. J. Eq. 7; Davis 
 v. Davis, 1 Hun (X. Y.) 444 ; but if the hus- 
 band have the means to support his wife, 
 and does not do so, this is a wilful desertion ; 
 James v. James, 58 N. H. 266; but see Van 
 Dyke v. Van Dyke, 135 Pa. 459, 19 Atl. 1061. 
 Refusal of sexual intercourse is not deser- 
 tion ; Pfannebecker v. Pfannebecker, 133 la. 
 425, 110 N. W. 618, 119 Am. St. Rep. 608, 12 
 Ann. Cas. 543; Williams v. Williams, 121 Mo. 
 App. 349, 99 S. W. 42; Prall v. Prall, 58 Fla. 
 496, 50 South. S67, 26 L. R. A. (N. S.) 577; 
 Pratt v. Pratt, 75 Vt. 432, 56 Atl. 86 (even 
 for three years and without physical ex- 
 cuse); Reynolds v. Reynolds, 68 W. Va. 15, 
 69 S. E. 381, Ann. Cas. 1912A, 889; physical 
 condition may justify refusal; Pfannebeck- 
 er v. Pfannebecker, 133 la. 425, 110 N. W. 
 618, 119 Am. St. Rep. 608, 12 Ann. Cas. 543 ; 
 other cases hold it desertion; Raymond v. 
 Raymond (N. J.) 79 Atl. 430: Graves v. 
 Graves, 88 Miss. 677, 41 South. 384 (desertion 
 for three years, followed by return and re- 
 fusal) ; Sisemore v. Sisemore, 17 Or. 542, 21 
 Pac. 667; 83 L. T. R. 224. A wife who, 
 without cause, refuses, cannot set up "deser- 
 tion without reasonable cause;" [1901] P. 
 317. 
 
 Involuntary absence, on account of sick- 
 ness or business, if not prolonged beyond 
 such a time as is reasonable or necessary, 
 will not constitute desertion; 1 Swab. & T. 
 88; Neely v. Neely, 131 Pa. 552, 20 Atl. 311; 
 or the confinement of a wife in a lunatic 
 asylum; Pile v. Pile, 94 Ky. 308, 22 S. W. 
 215. There can be no such thing as deser- 
 tion by both parties ; Wass v. Wass. 41 W. 
 Va. 126, 23 S. E. 537. When a wife is de- 
 serted, she need not hunt for her husband 
 or go to the place whence he has fled ; Millo- 
 witsch v. Millowitsch. 44 111. App. 357. 
 
 Where parties marry clandestinely and on 
 an agreement to live separately for the pres- 
 ent, the separate living is not a desertion 
 by the husband until the wife demands that 
 thev should live together; McAllister v. Mc- 
 Allister, 71 N. J. Eq. 13, 62 Atl. 1131. 
 
 In England it is held that if a wife refuses 
 to live under the same roof with her hus- 
 band, except upon his undertaking not to 
 exercise his full marital rights, he is justified 
 in separating himself from her, and is not 
 guilty of desertion without reasonable ex- 
 cuse, even though he may have committed 
 adultery while separated from her; [1901] 
 P. 317. 
 
 Desertion is not to be tested merely by as- 
 certaining which of the parties left the mat- 
 rimonial home first. That fact may be im- 
 material. The party who by his pr her 
 act intends bringing the cohabitation to an 
 end commits the desertion; [1899] P. 278. 
 There is no substantial difference between 
 a husband who puts an end to cohabitation 
 by leaving his wife, and a husband who puts 
 an end to it by persisting in a course of con-
 
 DESERTION 
 
 855 
 
 DESERTION OF A SEAMAN 
 
 duct which obliges his wife to leave him; 
 [1890] P. 221, 278, where it was held that a 
 husband's conduct amounted to desertion al- 
 though he did not abandon her or actually 
 force her to leave his house, but refused 
 her request to discharge a servant with 
 whom he had immoral relations or to dis- 
 continue such relations. In such a case it is 
 held the husband must be taken to ' 
 the consequences of his own act. The situa- 
 tion Is the same as if he had left her, and 
 if the attitude of the parties remain the 
 same for two years the desertion i 
 plete; S3 L. J. P. CO; 02 L. T. 830; GS L. J. 
 P. 91. 
 
 If husband and wife have ceased to co- 
 habit whether by the adverse act of the hus- 
 band or wife or by the mutual conse f 
 
 both, desertion becomes from that moment 
 impossible to either, at least until their com- 
 mon life and home have been resumed. 
 There cannot be a desertion by the husband 
 unless the cohabitation is broken by some 
 act of desertion: [1904] P. 389. 
 
 The Family Desertion Act has been ; 
 in Kansas, Wisconsin, Massachusetts and 
 North Dakota. 
 
 See 9 L. R. A. 696, note; Tiffany; Schoul- 
 er, Dom. Rel.; Divorce; Legal Cbueltt. 
 
 DESERTION OF A SEAMAN. The aban- 
 donment, by a sailor, of a vessel in which 
 he had engaged to perform a voyage, before 
 the expiration of his time, and without 
 leave. 
 
 Where a seaman signs articles for a voy- 
 age, agreeing to go to the port where the 
 vessel is lying to join her, and fails to do 
 so, he is a deserter; In re Sutherland, 53 
 Fed. 551; Tucker v. Alexandroff, is.". U. S. 
 42-1, 22 Sup. Ct. 195, 46 L. Ed. 264, where a 
 Russian sailor, sent to the United States as 
 one of the force ordered to man a cruiser 
 then building, was held a deserter within 
 the meaning of the treaty of 1832 with Rus- 
 sia, though he never set foot on the vessel 
 and it had not been commissioned. 
 
 Desertion without just cause renders the 
 sailor liable on his shipping articles for 
 damages, and, will, besides, work a for- 
 feiture of his wages previously earned; ■"■ 
 Kent 155. It has been decided in England 
 that leaving the ship before the completion 
 of the voyage is not desertion, In case, — 
 first, of the seaman's entering the 
 service, either voluntarily or by Impress- 
 ment; and. second, when he is compelled 
 to have it by the inhuman treatment of the 
 captain: 2 Esp. 269; 1 Bell, Com. 514; 2 < !. 
 Rob. 232. And see Cloutman v. Tunison, 
 1 Sumn. 373, Fed. Cas. No. 2,907; S3 
 Mariners. 2 Pet. Adm. 393, Fed. Cas. No. 
 12,893; Collin v. Jenkins, 3 Sto. 109, Fed. ("as. 
 No. 2.!) is. 
 
 To justify the forfeiture of a seaman's 
 wages for absence for more than forty-eight 
 hourtj, under the provisions of the act of 
 
 congress of July 20, 1790, an entry in the 
 log-book of the fact of his absence, made 
 by the officer in charge of it on the d 
 which | ej^ an( ] giving the 
 
 of the absent with- 
 
 out ]■■ de; 2 
 
 Sh. & Adm. 101 : i e V. 1 »< --num. 
 
 l Wash. C. C. 48, Fed. Cas. No. 11,110; 
 212, 296. 
 
 Lving a marine again on I 
 his return to duty with the assent of the 
 r, is a waiver of the foj fell i 
 
 previously incurred; Whitton v. The 
 Commerce, 1 Pet Adm. 160, Fed. < 'as. No. 
 17,604. 
 
 DESERVING. Worthy or meritorious, 
 without regard to condition or circumstanc- 
 es. In no sense of the word is it limited to 
 persons in oeed of assistance, or objects 
 which come within the class of charitable 
 Nichols v. Allen, 130 Mass. 211, 39 
 Am. Rep. 4 1". 
 
 DESIGN. As a term of art, "the giving 
 of a visible form to the conceptions of the 
 mind, or in other words to the invention." 
 Binns V. Woodruff, 4 Wash. C. C. 48, Ted. 
 
 Cas. No. 1,42 1. See Copyright; Patents. 
 
 Plan, scheme, or intention carried into ef- 
 fect. Catlin v. Fire Ins. Co., 1 Sumn. 434, 
 Fed. Cas. No. 2,522. A project, an idea. 3 
 H. & N. 301. 
 
 As used in an indictment for having In 
 one's possession materials for counterfeiting 
 it may refer to the purpose for which the 
 materials were originally designed, and not 
 to criminal intent in the defendant to use 
 them; Commonwealth v. Morse. 2 Mass. 128. 
 
 DESIGNATIO PERS0N/E. See Descrip- 
 tio Pebsonje. 
 
 DESIGNATION. The expression used by 
 a testator to denote a person or thing, in- 
 stead of the name i 
 
 A bequest of the farm which the testator 
 bought of a person named, or of a picture 
 which he owns, painted by a certain artist, 
 would be a designation of the thing. 
 
 DESIRE. The word desire, in a will. 
 raises a trust, where the objects of that 
 desire are specified; Vandyck v. Van Beur- 
 en, 1 Cal. (N. Y.i 84. :v Wobos. 
 
 DESPATCHES. Official communications 
 
 of official persons on the affairs of govern- 
 ment. 
 
 in general, the bearer of despatch 
 entitled to all the facilities that can 1 
 en him, in his own country, or in a neutral 
 state; but a Neutral cannot, in general, be 
 the bearer of despatches of one of the bel- 
 ligerenl parties; 6 0. Rob. 465, See2Dods, 
 54; i Edw. 27 1. 
 
 DESPERATE. Of which there is no hope. 
 
 This term is used frequently in making 
 an inventory of a decedent's efEectS, when a 
 debt is considered so bad that there is no
 
 DESPERATE 
 
 856 
 
 DESTROY 
 
 hope of recovering it. It is then called a 
 desperate debt, and, if it be so returned, 
 it will be prima facie considered as desper- 
 ate. See Toll. Ex. 248 ; 2 Wms. Ex. 644 ; 1 
 Chitt. Pr. 5S0; Schultz v. Pulver, 11 Wend. 
 (N. T.) 365. 
 
 DESPOIL. This word involves in its sig- 
 nification, violence or clandestine means, by 
 which one is deprived of that which he pos- 
 sesses. Sunol v. Hepburn, 1 Cal. 268. 
 
 DESPOT. This word, in its original and 
 most simple acceptation, signifies master 
 and supreme lord; it is synonymous with 
 monarch ; but taken in bad part, as it is 
 usually employed, it signifies a tyrant. 
 
 DESPOTISM. That abuse of government 
 where the sovereign power is not divided, 
 but united in the hands of a single man, 
 whatever may be his official title. It is 
 not, properly, a form of government. Toul- 
 lier, Dr. Civ. Fr. tit. prel. n. 32; Rutherf. 
 Inst. b. 1, c. 20, § 1. See Government. 
 
 DESTINATION. The intended applica- 
 tion of a thing. 
 
 For example, when a testator gives to a 
 bospital a sum of money to be applied in 
 erecting buildings, he is said to give a des- 
 tination to the legacy. Mill-stones taken 
 out of a mill to be picked, and to be re- 
 turned, have a destination, and are con- 
 sidered real estate, although detached from 
 the freehold. Heirlooms, although personal 
 chattels, are, by their destination, consid- 
 ered real estate; and money agreed or di- 
 rected to be laid out in land is treated as 
 real property; Craig v. Leslie, 3 Wheat. (TJ. 
 S.) 577, 4 L. Ed. 460; 2 Bell, Com. 2; 
 Erskine, Inst. 2. 2. 14; Fonbl. Eq. b. 1, c. 6, 
 § 9. See Easement; Fixtures. 
 
 In Common Law. The port at which a ship 
 is to end her voyage is called her port of 
 destination. Pardessus, n. 600. 
 
 The phrases "port of destination" and 
 "port of discharge" are not equivalent; TJ. 
 S. v. Barker, 5 Mason 404, Fed. Cas. No. 14,- 
 516. See Sheridan v. Ireland, 66 Me. 65. 
 
 Sending goods to their destination means 
 sending them to a particular place, to a 
 particular person who is to receive them 
 there ; not sending them to a particular 
 place without saying to whom ; 15 A. B. D. 
 43. 
 
 DESTROY. In the act of congress pun- 
 ishing with death any one destroying ves- 
 sels, it means to unfit the vessel for service, 
 beyond the hopes of recovery, by ordinary 
 means. TJ. S. v. Johns, 1 Wash. C. C. 363, 
 Fed. Cas. No. 15,481; TJ. S. v. Johns, 4 Dall. 
 (TJ. S.) 412, 1 L. Ed. 888. 
 
 A will burned, cancelled, or toi'n, ammo 
 revocandi is destroyed; Johnson v. Brails- 
 ford, 2 Nott & McC. (S. C.) 272, 10 Am. Dec. 
 001. The scratching out of the signature 
 with a knife, in England, has been held to 
 be tearing or otherwise destroying a will 
 
 in the sense of the s'.atute; 56 L. J. R. Pr. 
 & D. 96. 
 
 DETACH I ARE. By writ of attachment 
 or course of law, to seize or take into cus- 
 tody another's goods or person. Cunning- 
 ham. 
 
 DETAIL. One who belongs to the army, 
 but is only detached, or set apart, for the 
 time to some particular duty or service, and 
 who is liable at any time, to be recalled to 
 his place in the ranks. In re Strawbridge, 
 39 Ala. 379. 
 
 DETAINER. Detention. The act of keep- 
 ing a person against his will, or of with- 
 holding the possession of goods or other per- 
 sonal or real property from the owner. 
 
 Detainer and detention are very nearly synony- 
 mous. If there be any distinction, it is perhaps 
 that detention applies rather to the act considered 
 as a fact, detainer to the act considered as some- 
 thing done by some person. Detainer is more fre- 
 quently used with reference to real estate than In 
 application to personal property. 
 
 All illegal detainers of the person amount 
 to false imprisonment, and may be reme- 
 died by habeas corpus. Hurd, Hab. Corp. 
 209. 
 
 A detainer or detention of goods, is either 
 lawful or unlawful ; when lawful, the party 
 having possession of them cannot be de- 
 prived of it. It is legal when the party has 
 a right to the property, and has come lawful- 
 ly into possession. It is illegal when the 
 tnking was unlawful, as in the case of forci- 
 ble entry and detainer, although the party 
 may have a right of possession; but in some 
 cases the detention may be lawful, although 
 the taking may have been unlawful ; Moore 
 v. Shenk, 3 Pa. 20, 45 Am. Dec. 618. So also 
 the detention may be unlawful although the 
 original taking was lawful: as when goods 
 were distrained for rent, and the rent was 
 afterwards paid ; or when they were pledg- 
 ed, and the money borrowed and interest 
 was afterwards paid ; or if one borrow a 
 horse, to ride from A to B, and afterwards 
 detain him from the owner, after demand, 
 such detention is unlawful, and the owner 
 may either retake his property, or have an 
 action of replevin or detinue; 1 Chit. Pr. 
 135. In these and many other like cases the 
 owner should make a demand, and, if the 
 possessor refuses to restore them, trover, 
 detinue, or replevin will lie, at the option of 
 the plaintiff. In some cases the detention 
 becomes criminal although the taking was 
 lawful, as in embezzlement. 
 
 There may also be a detainer of land; 
 and this is either lawful and peaceable, or 
 unlawful and forcible. The detainer is 
 lawful where the entry has been lawful 
 and the estate is held by virtue of some 
 right. It is unlawful and forcible whert^ 
 the entry has been unlawful and with force, 
 and it is retained by force against right; 
 or even where the entry has been peaceable
 
 DETAINER 
 
 857 
 
 DETECTIVE 
 
 and lawful, if the detainer be by force and 
 against right; as, if a tenant at will should 
 detain with force after the will has deter- 
 mined, he will be guilty of a fordl 
 tainer; 2 Chitt. I'r. 238; Com. Dig. Detain- 
 er, B 2; People v. Rickert, 8 Cow. (X. Y.) 
 226; People v. Anthony. 4 Johns. (X. V.i 
 198; Carpenter v. Shepherd, 4 Bibb (Ky.) 
 501. See Ladd'v. Dubroca, 45 Ala. 421 ; May 
 v. Luckett, 54 Mo. -!.;7; Doty v. Burdick, S3 
 111. 473. A forcible detainer is a distinct of- 
 fence from a forcible entry : People v. Rick- 
 ert, 8 Cow. (N. Y.) 22G. See Fobcieij: En- 
 try AND 1 >i TAUTER, 
 
 In Practice. A writ or instrument. I 
 or made by a competent officer, authorizing 
 the keeper of a prison to keep in his ens- 
 tody a person therein named. A detainer 
 may be lodged against one within the walls 
 of a prison, on what account soever he is 
 there; Com. Dig. Process, E (3 B). This 
 writ was superseded by 1 & 2 Met. c. 110, 
 §§ 1, 2. See Habeas Court's. 
 
 DETECTIVE. One whose business it is 
 to watch, and furnish information coucern- 
 Ing, alleged wrongdoers by adroitly Investi- 
 gating their haunts and habits. In England 
 they are usually police officers in plain 
 clothes, and are the successors of the Bow 
 Street runners. In this country there are 
 usually detectives in the police department 
 of the large cities, but the term is applied 
 more particularly to the persons engaged in 
 the detection of crime and the prosecution 
 of such investigations as in England are 
 made through the private inquiry offices. 
 The latter correspond to the private detec- 
 tive agencies in the United States. 
 
 Where a detective is employed to arrest 
 and prosecute persons engaged in unlawful 
 acts, the employer will be liable for the de- 
 tective's arrest of an innocent person; 
 Evansville & T. H. R. Co. v. McKee, '.'0 tad. 
 519, 50 Am. Rep. 102. It has been said the 
 question is not whether the particular act 
 was authorized, but whether the servant 
 was engaged in the master's business, and 
 acting within the general scope of his au- 
 thority; Clark v. Starin, 47 Hun (N. Y.) 
 345. In Chicago City R. Co. v. McMahon, 
 103 111. 4S5, 42 Am. Rep. 20, a detective, 
 employed to gather evidence in a pending 
 case, offered a bribe to a witness, and it was 
 held to be the act of the employer. AYhere 
 a detective was employed with general in- 
 structions tiot to make an arrest without 
 first consulting the attorneys of a railroad, 
 but with authority to make an arrest if tin- 
 proof was clear, the company was held li- 
 able for the arrest of an innocent p 
 Eichengreen v. R. R., 00 Tenn. 229, ."1 8. W. 
 219, 31 L. R. A. 702, 54 Am. St. Rep. 
 
 One who joins a conspiracy for the pur- 
 pose of robbery, in order to expose it. and 
 honestly carries out the plan, is not an ac- 
 cessory before the fact, though he encour- 
 
 ages the others to the commission of the 
 crime, with the intent that they shall be 
 punished; Com. v. Holllster, 157 I'a. 13, 27 
 Atl. 386, 25 f. EL ! 
 
 Cm.. 84 Pa. 187; Tayl. By. | 071: Whart. 
 Cr. Ev. 5 1 10. 
 
 A detective may aid in the [on of 
 
 an offence in conjunction with a criminal, 
 and the mere fact Brill 
 guilty party. The detective I 
 or urge, or lead in the commission of the of- 
 The defendant must a< t freely of 
 his own motion; state v. Currie, 13 X. I>. 
 855, 102 X. W. 875, 89 P. P. A. 405, 112 
 St. Rep. 0s7. The assistance of a defo 
 in a burglary is no defence to a person who 
 himself does every act essential to i 
 tute a burglary; "/. A man may direct his 
 servant to appear to encourage the d 
 of a thief and lead him on until the offense 
 is complete, so long as he flees not indn 
 original intent, but only provides for discov- 
 ery; McAdams v. State, 8 Lea (Tenn.) 456; 
 Thompson v. State. 18 II 
 
 Varner v. State. 72 Ga. 745; State v. 
 Adams. 115 X. C. 775, 20 S. B. 722. But if 
 the scheme was concocted, and the partic- 
 ular building selected (with the consent of 
 the proprietor), and the defendant was 
 
 1 by the detective to assist in breaking 
 and entering no burglary was committed : 
 State v. Douglass, -11 Kan. 61 - 
 
 Open "shadowing," so aa to proclaim the 
 person a s a actionable; Sehultz v. 
 
 Tns. Co.. 151 Wis 537, 139 X. W. 386, 43 P. 
 R. A. (X. S.) 520. 
 
 DETENTION. The act of retaining and 
 
 preventing the removal of a person or prop- 
 erty. 
 
 The detention may be occasioned by acci- 
 dents, as the detention of a ship by calms, 
 or by ice; or it may be hostft leten- 
 
 tion of persona or ships in a foreign country 
 by order of the government. In gel era! the 
 detention of a ship does not change th 
 ture of the contract; and tl iil«.rs 
 
 will be entitled to their wages during the 
 time of the detention: l Bell, Com., 5th ed. 
 517; MaekoMcy. Civ. Law \ 210; 2 Pars. 
 Sh. & Adm. 83. See Detath 
 
 DETERMINABLE. Liable to come to an 
 end by the happening of a Contingeni as. 
 
 a determinable fee. 
 
 DETERMINABLE FEE (also Called a 
 
 qualified or base f'Ci. One which b 
 
 qualification subjoined to it, and which 
 
 be determined whenever the quail f] 
 
 nexed to it is at an end. A limitation to a 
 
 man and 1 D the part of his father 
 
 affords an example of thi- 
 
 Littleton § -• i: Co. Litt 
 
 >: _ Bla. Com. 109; Cruise, Dig. tit. 
 P S 82. See l Washb. R. P. . me v. 
 
 Bovee, 35 Wis. .".o. 
 
 DETERMINATE. That which is ascer-
 
 DETERMINATE 
 
 858 
 
 DETINUE 
 
 tained; what is particularly designated : as, 
 if I sell you my horse Napoleon, the article 
 sold is here determined. This is very differ- 
 ent from a contract by which I sell you a 
 horse, without a particular designation of 
 any horse. 
 
 DETERMINATION. The decision of a 
 court of justice. See Decree; Judgment. 
 
 The end, the conclusion, of a right or au- 
 thority : as, the determination of a lease, 
 Com. Dig. Estates by Grant (G 10, 11, 12). 
 The phrase "determination of will" is used 
 of the putting an end to an estate at will. 
 2 Bla. Com. 146. 
 
 The determination of an authority is the 
 end of the authority given ; the end of the 
 return-day of a writ determines the author- 
 ity of the sheriff ; the death of the principal 
 determines the authority of a mere attorney. 
 
 DETERMINE. To come to an end. To 
 bring to an end. 2 Bla. Com. 121 ; 1 Washb. 
 R. P. 380. 
 
 DETINET (Lat. detinere, to detain; de- 
 tinet, he detains). In Pleading. An action 
 of debt is said to be in the detinet when it 
 is alleged merely that the defendant with- 
 holds or unjustly detains from the plaintiff 
 the thing or amount demanded. 
 
 The action is so brought by an executor, 1 
 Wms. Saund. 1; and so between the con- 
 tracting parties when for the recovery of 
 such things as a ship, horse, etc. ; 3 Bla. 
 Com. 156. 
 
 An action of replevin is said to be in the 
 detinet when the defendant "retains posses- 
 sion of the property until after judgment in 
 the action ; Bull. N. P. 52 ; Chit. PI. 145. 
 
 It is said that anciently there was a form 
 of writ adapted to bringing the action in 
 this form; but it is not to be found in any 
 of the books; 1 Chit. PL 145.' 
 
 In some of the states the defendant is al- 
 lowed to retain possession upon giving a 
 bond similar to that required of the plaintiff 
 in the common-law form ; the action is then 
 in the detinet ; 3 Sharsw. Bla. Com. 146, n. ; 
 Bower v. Tallman, 5 W. & S. (Pa.) 556; Bee- 
 be v. De Baun, 8 Ark. 510; Zachrisson v. 
 Ahman, 2 Sandf. (N. Y.) 68; Ingalls v. Bulk- 
 ley, 13 111. 315; Boswell v. Green, 25 N. J. 
 L. 390. The jury are to find the value of the 
 chattels in such case, as well as the damage 
 sustained. See. Debet et Detinet ; Deti- 
 nxjit. 
 
 DETINUE (Lat. detinere, to withhold). 
 In Practice. A form of action which lies for 
 the recovery, in specie, of personal chattels 
 from one whp acquired possession of them 
 lawfully but retains it without right, together 
 with damages for the detention. 3 Bla. Com. 
 151. 
 
 It is generally laid down as necessary to the main- 
 tenance of this action that the orignal taking should 
 have been lawful, thus distinguishing it from re- 
 plevin, which lies in case the original taking is un- 
 lawful. Brooke, Abr. Detinue, 21, 36, 63. It is said, 
 however, by Chitty, that it lies in cases of tortious 
 
 taking, except as a distress, and that it Is thus dis- 
 tinguished from replevin, which lay originally only 
 where a distress was made, as was claimed, wrong- 
 fully ; 1 Chit. PI. 112. See 3 Sharsw. Bla. Com. 152. 
 In England this action has yielded to the more 
 practical and less technical action trover, but was 
 formerly much used for the recovery of slaves ; 
 Kent v. Armistead, 4 Munf. (Va.) 72 ; Hansen's 
 Adm'r v. Israel, 3 Bibb (Ky.) 510 ; Hooper's Adm'r 
 v. Hooper, 1 Ov. (Tenn.) 1S7 ; Foscue v. Eubank, 
 32 N. C. 424. 
 
 In detinue these points are necessary : 1. 
 The plaintiff must have property in the thing 
 sought to be recovered. 2. He must have the 
 right to its immediate possession. 3. It must 
 be capable of identification. 4. That the 
 property be of some value. 5. The defendant 
 must have had possession at some time prior 
 to the institution of the action. Hefner v. 
 Fidler, 58 W. Va. 159, 52 S. E. 513, 3 L. R. 
 A. (N. S.) 138, 112 Am. St. Rep. 961. 
 
 The action lies only to recover such goods 
 as are capable of being identified and distin- 
 guished from all others; Audi". Steph. PI. 
 79, n. ; Com. Dig. Detinue, B, C ; Co. Litt. 2S6 
 b; Lewis v. Hoover, 1 J. J. Marsh. (Ky.) 
 500, 19 Am. Dec. 120; Hail v. Reed, 15 B. 
 Monr. (Ky.) 479; Wright v. Ross, 2 G. 
 Greene (la.) 266; Goff v. Gott, 5 Sneed. 
 (Tenn.) 562; in cases where the defendant 
 had originally lawful possession, which he re- 
 tains without right ; Melton v. McDonald, 2 
 Mo. 45, 22 Am. Dec. 437 ; Spaulding v. Scan- 
 land, 4 B. Monr. (Ky.) 365; Stoker v. Yerby, 
 11 Ala. 322; as where goods were delivered 
 for application to a specific purpose; 4 B. & 
 P. 140; but a tort in taking may be waived, 
 it is said, and detinue brought; Owings v. 
 Frier, 2 A. K. Marsh. (Ky.) 268, 12 Am. Dec. 
 393; Schulenberg v. Campbell, 14 Mo. 491; 
 O'Neill v. Henderson, 15 Ark. 235, 60 Am. 
 Dec. 568. That it lies whether the taking 
 was tortious or not, see Beazley v. Mitchell, 
 9 Ala. 780; Overfield v. Bullitt, 1 Mo. 749. 
 It may be maintained for the recovery of a 
 policy of insurance where it has been paid 
 for, but is withheld by the agent; Robinson 
 v. Peterson, 40 111. App. 132 ; or to recover 
 a promissory note; Hefner v. Fidler, 58 W. 
 Va. 159, 52 S. E. 513, 3 L. R. A. (N. S.) 138, 
 112 Am. St. Rep. 961; Brown v. Pollard, 89 
 Va. 696, 17 S. E. 6. The property must be in 
 existence at the time; Caldwell v. Fenwick, 
 2 Dana (Ky.) 332; Lindsey v. Perry, 1 Ala. 
 203 ; Bethea v. McLennon, 23 N. C. 523 ; see 
 Haile v. Hill, 13 Mo. 612; but need not be in 
 the possession of the defendant ; Pool v. Ad- 
 kisson, 1 Dana (Ky.) 110; Haley v. Rowan, 
 5 Yerg. (Tenn.) 301, 26 Am. Dec. 268; Gaines 
 v. Harvin, 19 Ala. 491 ; Barksdale. v. Apple- 
 berry, 23 Mo. 389; Easley's Ex'rs v. Easley, 
 18 B. Monr. (Ky.) 86. 
 
 The plaintiff must have had actual pos- 
 session, or a right to immediate possession ; 
 Melton v. McDonald, 2 Mo. 45, 22 Am. Dec. 
 437; Burnley v. Lambert, 1 Wash. (Va.) 
 308; Smart v. Clift,, 4 Bibb (Ky.) 518; 
 Haynes v. Crutchfield, 7 Ala. 189; Miles v. 
 Allen, 28 N. C. 88 ; O'Neal v. Baker, 47 N. C.
 
 DETINUE 
 
 859 
 
 DETlXl'K 
 
 168; Hughes v. Jones, 2 Md. Ch. Dec. ITS; 
 but a special property, as that of a bailee, 
 with actual possession at the time of delivery 
 to the defendant, is sufficient; 2 Wins. Saund. 
 47 b; Boyle v. Townes, 9 Leigh (Va.i 158; 
 Spaulding v. Scanland, 4 B. Monr. (Ky. 
 Melton v. McDonald, 2 Mo. 45, 22 Am. Dec. 
 437; Bryan v. Smith, 22 Ala. 534. A mere 
 equitable claim reserved by a vendor on the 
 sale of personal property for the unpaid pur- 
 chase money, is not sufficient title to author- 
 ize a recovery in detinue; Lucas v. I'ittman, 
 a. 616, 10 South. 603. Either want of 
 title in the plaintiff or the absence of 
 possession in defendant, when the action was 
 brought, will prevent plaintiff's recovery, as 
 constructive possession in defendant from 
 the fact that he had the title is not sufficient; 
 Burns v. Morrison, 36 W. Va. 423, 15 S. EI 
 62. A demand is not requisite except to en- 
 title the plaintiff to damages tor detention 
 between demand and the commencement of 
 the action; Cole v. Cole's Adin'r, 4 Bibb 
 (Ky.) 340; Schulenberg v. Campbell, 14 Mo. 
 401; Jones v. Henry. 3 Litt. (Ky.) 46; Mor- 
 timer v. Brumfleld, 3 Munf. (Va.) 122; Dunn 
 v. Davis, 12 Ala. 135; Eastman v. Burke 
 County Com'rs, 114 N. C. 524, 19 S. E. 599. 
 
 The declaration may state a bailment or 
 trover; though a simple allegation thai the 
 came to the defendant's hands is suf- 
 ficient; Brooke, Abr. Detinue, 10. The bail- 
 ment or trover alleged is not traversable; 
 Brooke. Abr. Detinue, 1, 2, 50. It must de- 
 scribe the property with accuracy; Felt v. 
 Williams, 1 Scam. (111.) 206; March v. 
 Leckie, 35 N. C. 172. 55 Am. Dec. 431 ; Wright 
 v. Boss. 2 Greene (la.) 266. 
 
 The pica of non detinet is the general is- 
 sue, audi special matter may be given in evi- 
 dence under it; Co. Litt. 283; 16 E. L. & Eq. 
 514; Stratton v. Minnis, 2 Munf. (Va.) 329; 
 Morrow v. Batfleld, 6 Humphr. (Tenn. 
 Lucas v. I'ittman, 94 Ala. 616, 10 South. 603; 
 including title in a third person; Tanner v. 
 Allison, 3 Dana (Ky.) 422; McCurry v. 
 Hooper, 12 Ala. 823. 40 Am. Dec. 280; evic- 
 tion, or accidental loss by a bailee; Rucker 
 v. Hamilton. 3 Dana (Ky.) 30. The plea of 
 not guilty is not appropriate; Robii 
 Peterson. 40 111. App. 132. 
 
 The defendant in this action frequently 
 prayed garnishment of a third person, who 
 he alleged owned or had an interest in the 
 thing demanded; but this he could not do 
 without confessing the possession of the 
 thing demanded, and making privity of bail- 
 ment; Brooke, Abr. Garnishment, 1, Inter- 
 pleader, 3. If the prayer of garnishment was 
 allowed, a sci. fa. issued against the person 
 named as garnishee, if he made default, the 
 plaintiff recovered against the defendant the 
 chattel demanded, but no damages. If the 
 garnishee appeared, and the plaintiff made 
 default, the garnishee recovered. If both ap- 
 peared, and the plaintiff recovered, he had 
 judgment against the defendant for the chat- 
 
 tel demanded, and a distringas in execution; 
 and against the garnishee a judgment for 
 damages, and a ft. fa. in • 
 The Judgment is in ti. 
 the plaintiff recover I the value 
 
 thereof if he cannot have the property it- 
 self; Haynes v. Crut. Gar- 
 land v. Bugg, 5 Munf. | \ lei v. 
 Prather, l Bibb (Ky. i 484; Th 
 Thompson's 1 r. (Ky.) 421; 
 Waite v. Dolby, 8 Humphr. (T< 
 Mulliken v. Greer, 5 Mo. 489; Murphy v. 
 Moore, 39 N. O. 118; Wilson v. Buchai 
 Gratt tVa.) 343; Blakely's Adm'r v. 
 can, 4 T<x. 184; Arthur v. ingles, 34 W. Va. 
 . S. B. 872, 11 L. B. A. 557; with dam- 
 i the detention ; Bethea v. M L 
 23 N. C. 523; ilaile v. Hill, 13 Mo. 612; 
 Hunt's Adm'r v. Martin's Adm'r, 8 G 
 i Va.) - My, 16 Ala. 
 and full eosts. <»ne cannot recover as dam- 
 ages both hire and the ordinary wear and 
 tear of the property sued for, as hire in- 
 cludes ordinary wear and tear; White v. EL 
 Co., 90 Ala. 253, 7 South. 910. 
 
 The verdict and judgment must be such 
 that a speeial remedy may be had for a re- 
 covery of the g 1- detained, or a sari 
 
 tion in value for each parcel in case ti: 
 either of them cannot be returned; Haynes v. 
 Crutchfleld, 7 Ala. 189; Bell v. Pharr, 7 Ala. 
 807; Goodman v. Floyd, 2 Humphr. {1 
 59; Glascock v. Hays, 4 Dana (Ky. 
 Penny v. Davis, 3 B. Monr. (Ky.) 313. 
 
 See "Conversion ; Trover; Replevin. 
 
 DETINUE OF CHARTERS. A man may 
 have detinue for deeds and charte: 
 ing land, but if they concern the freehold, it 
 must be in C. B. and no other court Cun- 
 ningham. 
 
 DETINUE OF GOODS IN FRANK MAR- 
 RIAGE. A writ formerly available to a wife 
 after B divorce, for the recovery of 
 given with her In marriage. Mo/.. & W. Diet 
 
 DETINUIT (Lat he detained). In Plead- 
 ing. An action of replevin is said to be hi 
 the detinuit when the plaintiff acquires 
 session of the property claimed by means of 
 the writ. The right to retain is. of C 
 subject in such ease to the judgment of the 
 court upon his title to the property claimed; 
 Bull. X. P. 52L The declaration in such 
 
 not state the value of th - : Brit- 
 
 ton v. Blackf. (Ind.) U59; Haynes 
 
 v. Crutchfle I, 7 Ala. 18 
 
 The jiid. : cut in such case is for the dam- 
 age sustained by the unjust taking or de- 
 tention, or both, if both \\> .. and 
 for cods: 4 Bouvier, Inst n. 3562. 
 
 DEUTEROGAMY. A Bi ad marriage aft- 
 er the death of a former husband or wife. 
 
 DEVASTATION. Wasteful use of the 
 property of a deceased person: as. for ex- 
 tra vacant funeral or other unnecessary ex- 
 2 Bla. Com.
 
 DEVASTAVIT 
 
 860 
 
 DEVASTAVIT 
 
 DEVASTAVIT. The mismanagement and 
 waste by an executor, administrator, or oth- 
 er trustee, of the estate and effects trusted 
 to him as such, by which a loss occurs. 
 
 Devastavit by direct abuse takes place 
 when the executor, administrator, or trustee 
 sells, embezzles, or converts to his own use 
 goods intrusted to him; Com. Dig. Adminis- 
 tration (II); Smith v. Ayer, 101 U. S. 327, 
 
 25 L. Ed. 935 ; releases a claim due to the 
 estate; 3 Bacon, Abr. 700; Cro. Eliz. 43; 
 De Diemar v. Van Wagenen, 7 Johns. (N. 
 Y.) 404; Dawes v. Boylston, 9 Mass. 352, 6 
 Am. Dec. 72 ; or surrenders a lease ; People 
 v. Tleas, 2 Johns. Cas. (N. Y.) 376; 3 P. 
 Wins. 330; Camp v. Smith, 68 N. C. 537; 
 below its value. These instances sufficiently 
 show that any wilful waste of the property 
 will be considered a direct devastavit. See 
 Lacoste v. Splivalo, 64 Cal. 35, 30 Pac. 571. 
 
 Devastavit by maladministration most fre- 
 quently occurs by the payment of claims 
 which were not due nor owing, or by pay- 
 ing others out of the order in which they 
 ought to be paid, or by the payment of lega- 
 cies before all the debts are satisfied; Thom- 
 as v. Riegel, 5 Rawle (Pa.) 206; Chapin v. 
 Waters, 110 Mass. 195; Lewis v. Mason's 
 Adm'r, 84 Va. 731, 10 S. E. 529. 
 
 Devastavit by neglect. Negligence on the 
 part of an executor, administrator, or trus- 
 tee may equally tend to the waste of the es- 
 tate as the direct destruction or mal-admin- 
 istration of the assets, and render him guilty 
 of a devastavit. The neglect to sell the 
 goods at a fair price, within a reasonable 
 time, or, if they are perishable goods, before 
 they are wasted, will be a devastavit ; and a 
 neglect to collect a doubtful debt which by 
 proper exertion might have been collected 
 will be so considered. Bacon, Abr. Execu- 
 tors, L. See Matter of Childs, 5 Misc. 560, 
 
 26 N. Y. Supp. 721; Baer's Appeal, 127 Pa. 
 360, 18 Atl. 1, 4 L. R. A. 609; Mills' Adm'r 
 v. Talley's Adm'r, 83 Va. 361, 5 S. E. 368; 
 Sterling v. Wilkinson, 83 Va. 791, 3 S. E. 533 ; 
 Adkins v. Hutchings, 79 Ga. 260, 4 S. E. 887. 
 
 The law requires from trustees good faith 
 and due diligence, the want of which is pun- 
 ished by making them responsible for the 
 losses which may be sustained by the prop- 
 erty intrusted to them : when, therefore, a 
 party has been guilty of a devastavit, he 
 is required to make up the loss out of his 
 own estate. See Com. Dig. Administration, 
 I; Belt, Suppl. to Ves. 209; In re Strong's 
 Estate, 160 Pa. 13, 28 Atl. 480; Franklin v. 
 Low, 1 Johns. (N. Y.) 396; Bacon, Abr. Ex- 
 ecutors, L; 11 Toullier 58. 
 
 The return of nulla bona testatoris nee 
 propria and a devastavit to the writ of exe- 
 cution de bonis testatoris, in an action 
 against an executor or administrator, is 
 called a devastavit. Upon this return the 
 plaintiff may forthwith sue out an execution 
 against the person or property of the execu- 
 tor or administrator in as full a manner as 
 
 in an action against him sued in his own 
 right. This is not, however, a common use of 
 the word ; Brown, Diet. 
 
 DEVENERUNT (Lat. devenire, to come 
 to). A writ, now obsolete, directed to tbe 
 king's escheators when any one of the king's 
 tenants in capite dies, and when his son and 
 heir dies within age and in the king's cus- 
 tody, commanding the escheat, or that by the 
 oaths of twelve good and lawful men they 
 shall inquire what lands or tenements by 
 the death of the tenant have come to the 
 king. Dy. 360; Keilw. 199 a; Blount; 
 Cowell. 
 
 DEVEST or DIVEST. To deprive, to 
 take away ; opposite to invest, which is to 
 deliver possession of anything to another. 
 Wharton. 
 
 DEVIATION. Varying from the risks in- 
 sured against, as described in the policy, 
 without necessity or just cause, after the 
 risk has begun. 1 Phill. Ins. § 977. 
 
 Any unnecessary or unexcused departure 
 from the usual or general mode of carrying 
 on the voyage insured. 15 Am. L. Rev. 108. 
 See also Coffin v. Ins. Co., 9 Mass. 436. 
 
 A voluntary departure without necessity or 
 reasonable cause from the regular and usual 
 course of the voyage in reference to the 
 terms of a policy of marine insurance. Hos- 
 tetter v. Park, 137 U. S. 30, 11 Sup. Ct 1, 34 
 L. Ed. 568. 
 
 The mere intention to deviate is not a de- 
 viation, and if not carried into effect will 
 not vitiate a policy or exempt insurers from 
 a loss happening before the vessel arrives 
 at the dividing port ; Marine Ins. Co. v. 
 Tucker, 3 Cra. (U. S.) 357, 2 L. Ed. 466; 
 Maryland Ins. Co. v. Woods, 6 Cra. (U. S.) 
 29, 3 L. Ed. 143. Usage, in like cases, has a 
 great weight in determining the manner in 
 which the risk is to be run, — the contract 
 being understood to have implied reference 
 thereto in the absence of specific stipulations 
 to the contrary; Folsom v. Ins. Co., 38 Me. 
 414; Winter v. Ins. Co., 30 Pa. 334 ; Fletcher 
 v. Ins. Co., 18 Mo. 193; De Peyster v. Ins. 
 Co., 19 N. Y. 272, 75 Am. Dec. 331 ; Hostetter 
 v. Gray, 11 Fed. 181 ; Hostetter v. Park, 13T 
 U. S. 30, 41 Sup. Ct. 1, 34 L. Ed. 568. To 
 touch and stay at a port out of its course is 
 not a deviation if such departure is within 
 the usage of the trade; id; Marande v. Ry. 
 Co., 184 U. S. 173, 22 Sup. Ct. 340, 46 L\ Ed. 
 487. A variation from risks described in the 
 policy from a necessity which is not inex- 
 cusably incurred does not forfeit the insur- 
 ance; 1 Phill. Ins. § 1018; as to seek an 
 intermediate port for repairs necessary for 
 the prosecution of the voyage ; 1 Phill. Ins. 
 § 1019; changing the course to avoid dis- 
 aster; Haven v. Holland, 2 Mas. 234, Fed. 
 Cas. No. 6,229 ; delay in order to succor the 
 distressed at sea; 6 East 54; Mason v. The 
 Blaireau, 2 Cra. (U. S.) 240, 258, 2 L. Ed. 
 266; if the object is to save life, otherwise^
 
 DEVIATION 
 
 861 
 
 DEVICE 
 
 to save property merely; Crocker v. Jackson, 
 1 Spra. 141, Fed. Cas. No. 3,398; Bond v. 
 The Cora, 2 Wash. C. C. 80. - No. 
 
 1,621; The Boston, 1 Suinn. 828, Fed. Cas. 
 No. 1,673; damage merely In defence against 
 hostile attacks; 1 PhilL Ins. g 1030; or In 
 taking measures to repel such attacks; Ha- 
 ven v. Holland, 2 Mas. 230, Fed. Cas. No. 
 6,229. "Liberty to touch" at a pari i 
 port, reserved in the policy, does not Imply 
 liberty to remain for trading, which, If it in- 
 volves delay, may amount to deviation; 
 Maryland Ins. Co. v. Le Roy, 7 Cra, (U. S.) 
 26, 3 L. Ed. 257; nor to touch and stay at a 
 port out of the course when within the 
 usage of the trade; Bulkley v. ins. Co., - 
 Pai. 82, Fed. Cas. No. 2,118; Bentaloe v. 
 Pratt, Wall. C. C. 58, Fed. Cas. No. 1,330. 
 
 Necessity alone will sanction a deviation, 
 and the latter must be strictly commensu- 
 rate with the power compelling; Maryland 
 Ins. Co. v. Le Roy, 7 Cra. (U. S.) 26, 3 L. Ed. 
 257; the smallest deviation without neces- 
 sity discharges the underwriters, though the 
 loss be not the Immediate consequence of 
 the deviation ; Martin v. Ins. Co., 2 Wash. C. 
 C. 254, Fed. Cas. No. 9,161. The same doc- 
 trine is applicable in the case of a bill of 
 lading. Shipowners are held to be deprived 
 of the exemptions contained therein, even 
 where the deviation was not the cause of the 
 damage; 23 T. L. R. 89. 
 
 See article in 15 Am. L. Rev. 108. 
 The effect of a deviation in all kinds of 
 insurance is to discharge the underwriters, 
 whether the risk is thereby enhanced or 
 not; the doctrine applies to lake and river 
 navigation as well as ocean; 1 PhilL Ins. § 
 987. See Insurance; Departure; Habtes 
 Act. 
 
 In the law of railways, a lateral alteration 
 of the line of a railway. The railways 
 clauses act in England authorizes a company 
 which is subject to its provisions to deviate 
 on the line marked on the deposited plans 
 within the limits delineated thereon. Hodg. 
 Railw. 341. 
 
 In Contracts. A change made in the prog- 
 ress of a work from the original plan agreed 
 upon. 
 
 When the contract is to build a house ac- 
 cording to the original plan, and a deviation 
 takes place, the contract must be traced as 
 far as possible, and the additions, if any 
 have been made, must be paid for accord- 
 ing to the usual rate of charging; 3 B. & 
 Aid. 47. And see 14 Yes. 413; McFerran v. 
 Taylor, 3 Cra. ( 1 T . S.I 270, 2 L. Ed. 436; 
 Munroe v. Perkins, 9 Pick. (Mass.) 298, 20 
 Am. Dec. 475; Chit. Contr. 168. 
 
 DEVICE. That which is devised or form- 
 ed by design, a contrivance, an invention. 
 Henderson v. State, 59 Ala. 91; Armour 
 Packing Co. v. U. S., 209 U. S. 56, 28 Sup. Ct. 
 42S, 52 L. Ed. 681, wjiere the word as used 
 in the Elkius Act was construed and the 
 
 above definiti The court held that 
 
 the act sou-lit * by which 
 
 unlawful pr< en or re- 
 
 ceived; that it • tentlon of con- 
 
 to limit tl 
 
 to fraudulent 1 that the 
 
 term "device" lnclud< s • 
 plan or contrivance. 
 
 DEVILLING. A term used in I 
 a barrister recently admitted i . who 
 
 assists a junior barrister in his pi 
 work, without compensation and without ap- 
 pearing in any way in the matter. 
 
 DEVISAVIT VEL NON. The name of an 
 ■ ut out of a court of chancery, or one 
 which exercises chancery or prol ate Jurisdic- 
 tion, to a court of law. to try the validity of 
 a paper asserted and denied to be a will, to 
 in whether or not the testator did de- 
 vise, or whether or not that paper was ids 
 will; 7 Bro. P. C. 437; 2 Atk. 424; Asay v. 
 Hoover, 5 Pa. 21, 45 Am. Dec. 713. 
 
 An application for an issue <U 
 non is properly denied where the decided 
 weight of evidence is In favor of the testa- 
 mentary capacity of testatrix, and it ap- 
 pears that the two sons in whose favor the 
 will was made cared for their mother and 
 her estate, while the two who had been dis- 
 inherited, attempted to have her declared in- 
 sane; In re Pensyl's Estate, i.j7 Pa. -> 
 Atl. 6G9. 
 
 DEVISE. A gift of real property by a 
 last will and testament. 
 
 The term devise, properly and technically, applies 
 only to real estate; 1 Hill. Abr. c. 36. 62; Dicker- 
 man v. Abrahams, 21 Barb. (N. Y.) 001. But it is 
 also sometimes improperly applied to a bequest or 
 legacy. See 4 Kent 4SD ; S Viner, Abr. 41 ; Com. 
 Dig. Estates by Devise; Rountree v. Pursell, 11 Ind. 
 App. 522, 39 N. E. 717. The terms "bequest" and 
 "devise" are used indifferently, and legatees may 
 take under a devise of lands, if the context of the 
 will shows that such waa the testator's intention; 
 Ladd v. Harvey, 21 N. H. 615; In re Fetrow's Es- 
 tate, 58 Pa. 
 
 A general devise of lands will pass a re- 
 version in fee. even though the testator has 
 other lands which will satisfy the wor 
 the devise, and although it he highly Im- 
 probable that he had in mind BUCh reversion; 
 3 p. Wi.is. 56; 3 Bro. P. C. 4os ; 4 Bro. 
 338; Steel v. Cook, l Mete. (Mass.) 281; 8 
 256. 
 
 A general devise will pi for years. 
 
 if the testator have no other real 1 
 upon which the will may operate; hut if 
 he have both lands in fee and lands Cor 
 years, a devise of all his lands and tenements 
 will commonly pass only (he lands In 
 simple; Oro. Car. 293; Bowen v. [dley, 1 Ed 
 en. ( n. v. 1 i r» 1 ; 6 Sim. :o. But if ■ 
 Iran intention appear from the will, it will 
 prevail: B Ves, .'■ K); 9 East 448. 
 
 Testator "gave, devised and bequeathed 
 all his furniture, goods, chattels and el 
 whatsoever the same may be and wh 
 ever situate." It was held that giving ex-
 
 DEVISE 
 
 862 
 
 DEVISEE 
 
 pression to the word "devise," in connection 
 with the other terms of the will, that the 
 gift passed all the property of the testator, 
 whether real or personal; [1S91] 3 Ch. 389. 
 A devise in a will can never he regarded 
 as the execution of a power, unless that 
 intention is manifest : as, where the will 
 would otherwise have nothing upon which 
 it could operate. But the devise to have that 
 operation need not necessarily refer to the 
 power in express terms. But where there is 
 an interest upon which it can operate, it shall 
 be referred to that, unless some other inten- 
 tion is obvious: G Co. 176; 6 Madd. 190; 4 
 Kent 334 ; 1 Jarm. Wills G28. 
 
 The devise of all one's lands will not gen- 
 erally carry the interest of a mortgagee, in 
 premises, unless that intent is apparent : 2 
 Vera. 621; 3 P. Wins. 61; 1 Jarm. Wills, 
 633. The fact that the mortgagee is in pos- 
 session is sometimes of importance in de- 
 termining the purpose of the devise. But 
 many cases hold that the interest of a mort- 
 gagee or trustee will pass by a general de- 
 vise of all one's land, unless a contrary in- 
 tent be shown; Jackson v. De Lancy, 13 
 Johns. (N. Y.) 537, 7 Am. Dec. 403; 8 Ves. 
 407 : 1 J. & W. 494. But see 9 B. & C. 267. 
 This is indeed the result of the modern de- 
 cisions, 4 Kent 539; 1 Jarm. Wills 638. It 
 seems clear that a devise of one's mortgages 
 will pass the beneficial title of the mortga- 
 gee ; 4 Kent 539. 
 
 Devises may be contingent or vested, after 
 the death of the testator. They are con- 
 tingent when the vesting of any estate in 
 the devisee is made to depend upon some 
 future event, in which case, if the event 
 never occur, or until it does occur, no estate 
 vests under the devise. But when the future 
 event is referred to merely to determine 
 the time at which the devisee shall come 
 into the use of the estate, this does not 
 hinder the vesting of the estate at the death 
 of the testator; 1 Jarm. Wills, c. xxvi., and 
 numerous cases cited. The law favors that 
 construction of the will which will vest the 
 estate; Cdney v. Hull, 21 Pick. (Mass.) 311; 
 King v. King, 1 W. & S. (Pa.) 205, 37 Am. 
 Dec. 459. But this construction must not be 
 carried to such an extent as to defeat the 
 manifest intent of the testator; Olney v. 
 Hull, 21 Pick. (Mass.) 311; Richardson v. 
 Wheatland, 7 Mete. (Mass.) 171. Where the 
 estate is given absolutely, but only the time 
 of possession is deferred, the devisee or lega- 
 tee acquires a transmissible interest although 
 he never arrive at the age to take possession ; 
 1 Ves. Sen. 44, 59, 118; Bowers v. Porter, 4 
 Pick. (Mass.) 198 ; Richardson v. Wheatland, 
 7 Mete. (Mass.) .173. See -Lapsed Devise; 
 Will ; Legacy ; Charge. 
 
 DEVISEE. A person to whom a devise 
 has been made. 
 
 All persons who are in rerum natura, and 
 even embryos, may be devisees, unless ex- 
 cepted by some positive law. But the dev- 
 
 isee must be in existence, except in case 
 of devises to charitable uses ; 2 Washb. R. P. 
 OSS; Philadelphia Baptist Ass'n v. Hart, 4 
 Wheat. (U. S.) 33, 49, 4 L. Ed. 499. See 
 Charitable Uses. In general, he who can 
 acquire property by his labor and industry 
 may receive a devise ; Cam. & N. 353. Femes 
 covert, infants, aliens, and persons of non- 
 sane memory may be devisees; 4 Keut 506; 
 2 Wms. Ex. 269, n. ; Doe v. Roe, 1 Harr. 
 (Del.) 524. Corporations in England and in 
 some of the states can be devisees only to a 
 limited extent; 2 Washb. R. P. 6S7. 
 
 A devisee may mean a legatee; People v. 
 Fetrie, 191 111. 497, 61 N. E. 499, S5 Am. St 
 Rep. 268. 
 
 DEVISOR. A testator. One who devises 
 real estate. 
 
 Any person who can sell an estate may, 
 in general, devise ^it ; and there are some 
 disabilities as to a sale which are not such 
 as to a devise. 
 
 DEVOIR. Duty. It is used in the statute 
 of 2 Ric. II. c. 3, in the sense of duties or 
 customs. 
 
 DEVOLUTION. In Ecclesiastical Law. 
 The transfer, by forfeiture, of a right and 
 power which a person has to another, on 
 account of some act or negligence of the per- 
 son who is vested with such right or power ; 
 for example, when a person has the right of 
 presentation and he does not present within 
 the time prescribed, the right devolves on 
 his next immediate superior. Ayliffe, Par- 
 erg. 331. See 3 App. Cas. 520. 
 
 DEVOLVE. To pass from a person dying 
 to a person living. 1 Mylne & K. 648. See 
 Delegation. 
 
 Dl COLON A. The contract which takes 
 place between the owner of a ship, the cap- 
 tain, and the mariners, who agree that the 
 voyage shall be for the benefit of all. The 
 term is used in the Italian law. Targa, cc. 
 36, 37; Emerigon, Mar. Loans, s. 5. The New 
 England whalers owned and navigated were 
 under this species of contract The captain 
 and his mariners were all interested in the 
 profits of the voyage in certain proportion, in 
 the same manner as the captain and crew 
 of a privateer, according to the agreement 
 between them. Such agreements were very 
 common in former times. It is necessary to 
 know this in order to understand many of 
 the provisions of the laws of Oleron and of 
 Wisbuy, the Consolato del Mare, and other 
 ancient codes of maritime and commercial 
 laW. Hall, Mar. Loans 42. 
 
 DICTATE. To pronounce, word by word, 
 what is meant to be written by another. It 
 is thus defined in the Louisiana code, which 
 provides that the testator may dictate his 
 will ; Hamilton v. Hamilton, 6 Mart. N. S. 
 (La.) 143. The presentation, by testator, of 
 an instrument which he has caused to be 
 written, declaring it to be his will, may some-
 
 DICTATE 
 
 SG3 
 
 DP 
 
 times supply the want of dictation; Pre 
 gast v. I'reudergast, 16 La. Ann. 21!), 7'.) Am. 
 Dec. 575. 
 
 DICTATOR. In Roman Law. A magis- 
 trate at Rome invested with absolute power. 
 His office continued but for six months. 
 Hist, de la Jur. Dig. I. 2. IS, 1. 1. 1. 
 
 DICTORES. Arbitrators. 
 
 DICTUM (also, Obiter Dictum). An 
 ion expressed by a court upon some qu 
 of law which is aol y to the dei 
 
 of the case before it. 
 
 It frequently happens that, In assigning Its opin- 
 ion upon a question before it, the court discusses 
 collateral questions and expresses a decided opinion 
 upon them. Such opinions, however, are frequently 
 given without much reflection or without pi 
 argument at the bar ; and as, moreover, they do not 
 enter into the adjudication of the point at issue 
 they have only that authority which may be ac- 
 corded to the opinion, more or less deliberate, of 
 the individual judge who announces it. Cha 
 Com. 3G, n. It may be observed that in recent times, 
 particularly in those jurisdictions where appeals 
 are largely favored, the ancient practice of courts 
 in this respect is much modified. Formerly, 
 aimed to confine their opinion to the precise point 
 involved, and were glad to make that point as nar- 
 row as it might justly be. Where appeals are fre- 
 quent, however, a strong tendency may be seen to 
 fortify the judgment given with every principle that 
 can be invoked in its behalf,— those that are merely 
 collateral, as well as those that are necessarily in- 
 volved. In some courts of last resort, also, when 
 there are many judges, it is not untrequently the 
 case that, while the court come to one and the same 
 conclusion, the different Judges may be led to that 
 conclusion by different views of the law, so that it 
 becomes difficult to determine what Is to be regarded 
 as the principle upon which the case was decided 
 and what shall be deemed mere dicta. 
 
 It is not easy to define the term with 
 such precision as to afford an exact crite- 
 rion by which to decide when the language 
 of a court or judu r e is entitled to be con- 
 sidered as a precedent and followed as an 
 authority. Judicial references to the sub- 
 ject indicate that expressions which would 
 be included under the term dicta arc never- 
 theless afterwards treated by other courts 
 with respect if not with the binding force 
 of adjudicated cases. Possibly no better 
 definition can be found than that of Folger, 
 J., in Rohrbach v. Ins. Co., 62 X. Y. 58, 20 
 Am. Rep. 451 : "Dicta are the opinions of a 
 judge which do not embody the resolution or 
 determination of the court, and. made with- 
 out argument or full consideration of the 
 point, are not the professed, deliberate deter- 
 minations of the Judge himself: obiter dicta 
 are such opinions uttered by the way, not 
 upon the point or question pending, as if 
 turning aside for the time from the main 
 topic of the case to collateral subjects." 
 
 The general rule, broadly stated by the 
 United States supreme court, is thai to make 
 an opinion a decision "there must have been 
 an application of the judicial mind to tjie 
 precise question necessary to be determined 
 to fix the rights of the parties. . . . and, 
 therefore, this court has never held itself 
 bound by any part of an opinion which was 
 
 not needful to the a -nt of the ques- 
 
 tion between the partii Per Curtis, J., in 
 Carroll v. Carroll, 1G 11 
 936. And in Cohens v. Virginia, when the 
 case of Marbury v. Mad: J I.. 
 
 Ed. 60, was very earnestly pi id the 
 
 attention of the court, Marshall, 0. .1.. 
 "It is a maxim aot to I . that 
 
 general expressions in every opin 
 be taken in connection with the 
 expressions are used, i 
 yond the case, they ma; 
 ought Dot to conl rol th • judgment 
 sequent ease whea the very point la 
 (•(!;•• 6 Wheat. 399, 5 L. Ed. 257. Id In re 
 nk, :: How. 292, 111..! Iron, 
 
 J., dissenting, stroDgly critidfi id the majority 
 of the court for a long disCUSSiOD of ;f, 
 er of a court as to which they decided that 
 they had no authority to review Lt£ I 
 In a later ease the - '. in ref< r- 
 
 eDce to nil allusion to the opinion in a case 
 
 previously decided, "This was the 
 tion before the court and the decisioD is au- 
 thority only to the extent of t 
 it; ... if more was intended by the 
 judge who dellven «1 the opinion it 
 ly obiter;" V. S. v. Counl r. s. 
 
 211, 24 L. Ed. 628. The great powers and 
 peculiar functions included in tin 
 tional powers of that court, as well as the 
 conclusiveness of its judgments as declara- 
 tions of constitutional construction, mi 
 not only proper hut essential that its deci- 
 sions should be confined to the points 
 sarily involved in the ease and eml 
 in the argument. And the same r< 
 only warrant but require a rigid exclusion of 
 mere dicta from the 
 
 The reason for the i ent of the rule. 
 
 as against expressions of opinion upon points 
 not fairly raised by ' Ls stated ly the 
 
 supreme court of Pennsylvania: "What I 
 have said or written outside of the case try- 
 bag, or shall say or write in BUCh eircum- 
 -. may he taken as my opinion at the 
 time, without argument or full consideration; 
 but I will not consider myself bound by 
 it when the point is fairly trying and fully 
 argued and considered." Per Huston, J., 
 Franta v. Brown, 17 s. & EL 287. 
 
 According to the more rigid rule, any 
 expressioD of opinion however deliberate up- 
 on a question however fully argued, if i 
 sential to the disposition that was in 
 the case, may be regarded as a dictum: but 
 it is, on the other hand, said that it is diffi- 
 cult to see why. in a philosophical point of 
 view, the opinion of the court is not SO 
 persuasive OD all the points which w< 
 Involved in the cause that it was the duty of 
 counsel to argue them, and which were delib- 
 erately passi d over by the court, as if the 
 decision had hum,' upon but oue point; 1 
 Abbott. N. V. Dig. pref. iv. And a text writ- 
 er has said that "the line must not be too 
 sharply drawn"; Wells, lies. Adj. & Sta. I 1 C
 
 DICTUM 
 
 864 
 
 DICTUM 
 
 jj 581. The fact that a decision might have 
 been rested upon a different ground, and 
 even a more satisfactory one, does not place 
 the actual decision, on a ground arising, in 
 the category of a dictum; Clark v. Thomas, 
 4 Heisk. (Tenn.) 419. 
 
 But even when the point ruled was not 
 directly and necessarily in issue, there are 
 distinctions drawn as to the relative au- 
 thority of judicial expressions of opinion 
 comprehended under the general term dicta, 
 as used in its broadest sense. An expression 
 of opinion upon a point involved in a case, 
 argued by counsel and deliberately passed 
 upon by the court, though not essential to 
 the disposition of the case, if a dictum, 
 should be considered as a judicial dictum 
 as distinguished from a mere obiter dictum, 
 i. e. an expression originating alone with the 
 judge writing the opinion, as an argument or 
 illustration ; Buchner v. By. Co., GO Wis. 264, 
 19 N. W. 56. What was, in strictness, a 
 dictum of Mr. Justice McLean has been ex- 
 tensively commented on, treated, and in sev- 
 eral cases followed, as an authority. The 
 suit was on a bond of a United States offi- 
 cer, and the question was as to when a res- 
 ignation fook effect, it being claimed that for 
 default after resignation the surety was not 
 liable. The court held the resignation to be 
 a conditional one, and went on to discuss the 
 right of resignation and the necessity of ac- 
 ceptance or power of rejection, reaching the 
 conclusion that an unqualified resignation re- 
 quired no acceptance and would have dis- 
 charged the surety; U. S. v. Wright, 1 Mc- 
 Lean, 509, Fed. Cas. No. 16,775. This case 
 having been cited to that point it was con- 
 tended that it was a mere dictum. After de- 
 fining dictum the supreme court of Nevada 
 held "that while technically such, it was not 
 liable to the objections usually urged, — it was 
 the expression of opinion on a point argued, 
 and entitled to far more weight than an or- 
 dinary dictum on a point not discussed and 
 remotely connected with the case." State v. 
 Clarke, 3 Nev. 566. The same case was fol- 
 lowed in People v. Porter, 6 Cal. 28; State 
 v. Fitts, 49 Ala. 402; and is commented on 
 and treated as an authority without being 
 characterized as a dictum in Edwards v. U. 
 S., 103 U. S. 471, 26 L. Ed. 314 and Beeves v. 
 Ferguson, 31 N. J. L. 107. 
 
 So also it has been held, with respect to 
 a court of last resort, that all that is needed 
 to render its decision authoritative is that 
 there was an application of the judicial mind 
 to the precise question adjudged; and that 
 the point was investigated with care and 
 considered in its fullest extent; Alexander 
 v. Worthington, 5 Md. 4SS ; and that when a 
 question of general interest is involved, and 
 is fully discussed and submitted by counsel, 
 and the court decides the question with a 
 vieW to settle the law, the decision cannot be 
 considered a dictum; id. 
 
 When a question is involved in the case, 
 
 though not in the particular phase of it, at 
 the time before the court, the language of 
 the court is not a mere dictum. When a 
 will was offered for probate the question 
 of its validity, so far as regarded charitable 
 uses, was involved, and what was said as to 
 that was not obiter; Jones v. Habersham, 
 107 U. S. 174, 2 Sup. Ct. 336, 27 L. Ed. 401; 
 although a point may not have been exhaus- 
 tively argued a decision upon it cannot be 
 said to be obiter dictum when it was upon a 
 question raised by a demurrer upon which 
 the court distinctly expressed an opinion; 
 Michael v. Morey, 26 Md. 239, 90 Am. Dec. 
 106. 
 
 "Whenever a question fairly arises in the 
 course of a trial, and there is a distinct de- 
 cision of that question, the ruling of the 
 court in respect thereto can, in no just sense, 
 be called mere dictum." Union Pac. B. Co. v. 
 Eailroad Co., 199 U. S. 160, 166, 26 Sup. Ct. 
 19, 50 L. Ed. 134 ; Florida C. B. Co. v. Schut- 
 te, 103 U. S. 118, 26 L. Ed. 327; New York 
 Cent. & H. B. B. Co. v. Price, 159 Fed. 330, 
 332, 86 a C. A. 502, 16 L. B. A. (N. S.) 1103. 
 The expressions of courts and judges 
 which fall within the general designation of 
 dicta are accorded more or less weight as 
 they agree with, or run counter to, the cur- 
 rent of authority, and, like the adjudications 
 of courts in other jurisdictions, not direct 
 authorities, they are always considered with 
 reference to the judicial reputation and ex- 
 perience of their authors. Beferring to a 
 case cited in a dictum Lord Mansfield said, 
 "This dictum of Lord Holt's is no formed 
 decisive resolution; no adjudication; no 
 professed or deliberate determination 
 . . . " ; then after citing cases contra he 
 continued, "therefore this mere obiter dictum 
 ought not to weigh against the settled direct 
 authority of the cases which have been delib- 
 erately and upon argument determined the 
 other way." 2 Burr. 2004. "Dicta of judges 
 upon matters not argued or directly before 
 them, have had more importance attached to 
 them than, in my opinion, they ought to have 
 had ; but such expressions, falling from such 
 a man as Lord Hardwicke, may be safely re- 
 lied upon to show that, at that time, the idea 
 of a larger legacy being adeemed by a small- 
 er portion was not familiar to his mind. It 
 is the more important to keep this dictum of 
 Lord Hardwicke in mind because another 
 dictum of that very eminent judge . . 
 is relied upon in support of the supposed 
 rule." Ld. Ch. Cottenham, in 1 Buss. 27. 
 The doctrine of the courts of France on 
 this subject is stated in 11 Toullier 177, n. 
 133. 
 
 See Precedent. 
 
 In French Law. The report of a judgment 
 made by one of the judges who has given it 
 Pothier, Proc. Civ. pi. 1, c. 5, art. 2. 
 
 DIEM CLAUSIT EXTREMUM (Lat. he 
 has closed his last day,— died). A writ
 
 DIEM CLAUSIT EXTREMUM 
 
 8G5 
 
 NON 
 
 which formerly lay on the death of a tenant 
 in capite, to ascertain the lands of which he 
 died seised, and reclaim them into the king's 
 hands. It was directed to the king's es- 
 cheators. Fitzh. N. B. 251, K ; 2 Reeve, Hist 
 Eng. Law 327. 
 
 A writ of the same name, issuing out of 
 the exchequer after the death of a debtor of 
 the king, to levy the debt of the lands or 
 goods of the heir, executor, or administra- 
 tor. Tenncs de la Ley. This writ is still in 
 force in England. 3 Steph. Com. <;•;?. 
 
 DIES (Lafc). A day; days. Days for ap- 
 pearance in court Provisions or mainte- 
 nance l'or a day. The king's rents were an- 
 ciently reserved by so many days' provisions. 
 Spelnian, Gloss. ; Cowell; Blount 
 
 DIES AM OR IS (Lat). A day of favor. 
 If obtained after a default bj endant, 
 
 it amounted to a waiver ot the defaull 
 Litt 135 a; 2 Reeve. Hist. Eng. taw Co. 
 The appearance day of the term, or quarto 
 die post, was also so called. 
 
 DIES COMMUNES IN BANCO (Lat). 
 Regular days for appearance in court; call- 
 ed, also, common return-days. 2 Reeve, Hist. 
 Eng. Law 57. 
 
 DIES DAT US (Lat. a day given). A day 
 or time given to a defendant in a suit, which 
 is in fact a continuance of the cause. It is 
 so called when given before a declaration. 
 When it is allowed afterwards, it assumes 
 the name of imparlance, which see. 
 
 Dies datus in banco, a day in bank. Co. 
 Litt. 135. Dies datus partibus, a continu- 
 ance; dies datus prcee partiiuii, a day given 
 on prayer of the parties. 
 
 DIES DOMINICUS. The Lord"s day ; Sun- 
 day. 
 
 DIES FASTI (Lat i. In Roman Law. 
 Days on which courts might be held and 
 judicial and other business legally transact- 
 ed. Calvinus, Lex.; Anthon, Rom. Ant 3 
 Bla. Com. 275, 424. 
 
 DIES GRATI/E (Lat)- In Old English 
 Law. Days of grace. Co. Litt. 134 ft. 
 
 DIES NEFASTI (Lat). In Roman Law. 
 Days on which it was unlawful to transact 
 judicial affairs, and on which the courts 
 were closed. Anthon, Rom. Ant; 1 Kaufm. 
 Mackeld. 24; 3 Bla. Com. -7.".. 
 
 DIES NON (Lat). An abbreviation of the 
 phrase dies non juridicus, universally 
 
 to denote non judicial days. Lays during 
 which courts do not transact any business; 
 as, Sunday, or the legal holidays. :: Chitty, 
 Gen. Pr. 104; W. Jones 156. Sunday was 
 the original dies non, but in many slates 
 days declared by statu'o to be legal holidays 
 are also such, but the decisions on this sub- 
 ject depend hugely upon the terms and scope 
 of the statutes, many of which apply solely 
 to the presentment and payment of commer- 
 Bouv.— 55 
 
 cial paper, and others include a prohibition 
 of judicial business and provide for the clos- 
 ing of public offices. 
 
 A distinction was made in 9 Co. GG between 
 judicial and ministerial acts performed on a 
 dies non; this was overruled in 1 Sua 
 but the distinction now obtai; .t. L. 
 
 J. 26. And under a statute forbidding the 
 transaction of any judicial bu Sun- 
 
 day or a legal holiday, the | suing on uch a 
 day of an attachment by a county judge for 
 a claim not due was held to be "judl 
 business and void; Merchants' Nat. Bank of 
 Omaha v. Jaffray, :;»; Neb. 218, 54 N. w 
 19 L R. A. 316; but an attachment for a 
 claim past. due. was held to be valid, as a min- 
 isterial, and not a judicial act; Whipple v. 
 Hill. 36 Neb. 7L'<>. r,r< N. W. 227, 20 L it A. 
 313, 38 Am. St. Rep. 712. 
 
 It has usually been held that a verdict may 
 be received on a dies non; Huidekoper v. 
 Cotton, 3 Watts (Pa.) 56; licCorkle v. State, 
 14 I i i- i. 39; Powers v. State, 23 Tex. App. 
 12, 5 S. W. 153; Brown v. - 32 Tex Or. 
 
 It 119, 22 S. W. 596; but a judgment entered 
 on BUCh verdict on the same day is void; 
 P.axter v. People, 3 Oilman (111.) 368; Hogh- 
 v. Osborn, 15 Johns. (N. I.) 119. See 
 Webber v. Merrill. 34 X. BL -"- : Johnson v. 
 Hay. 17 Pick. (Mass.) 1'"'. ; Stale v. Rii 
 74 N. •'. 187; tired v. Lumber renn- 
 
 et'., 22 s. \\ . - ; Merchant Bank 
 
 of Omaha v. Jaffray, :'■''' Neb. 218, 54 N. 
 W. 258, 19 L. R. A. 316 a . at by 
 confession entered upon December -•"', a le- 
 gal holiday, is not void; Bradley v. Clau- 
 don, 45 111. App. ::->•. In Kentucky although 
 Thanksgiving day is a legal holiday, it is 
 not treated as Sunday, except as to com- 
 mercial paper, and where money be omes due 
 on smh a day, the debtor is in default if he 
 fails to pay on that day; National Mut 
 
 lien. AS8*n v. Miller, B5 !• 8. W. I 
 
 A bill of exceptions signed OH Sunday is 
 void: Roberts v. Bank, 137 ind. 697, 36 N. 
 i:. 1091. Warrants tor treason, felony, and 
 breach of the peace may be executed on sun- 
 day: State v. Eicketts, 71 N. <'• 187. Where 
 public policy or the prevention of irremedia- 
 ble wrong requires it the courts may - 
 Sunday and issue process; Langabier v. Fair- 
 bury, i'- & X. W. It R. Co., 64 [11.243, 
 Rep. 5o0. It is no Longer uncommon for 
 courts to sit on legal holidays in some juris- 
 dictions. See a full article on this title in 
 i.. Rev. N. s. 697; Stoday; Holidays. 
 
 DIES NON JURIDICUS (Lat). Non-judi- 
 cial days. See DISS Non. 
 
 DIES PACIS (tat. day of peace). The 
 
 year was formerly divided into the da 
 
 the peace of the church and the days of the 
 of the king,— including in the two di vi- 
 sions all the days of the year. Orabb, Hist 
 Eng. law 35. 
 
 DIES A QUO (Lat). In Civil Law. The
 
 DIES A QUO 
 
 8G6 
 
 DIGNITIES 
 
 day from which a transaction begins. Cal- 
 vinus, Lex. ; 1 Kaufm. Mackeld. Civ. Law 
 168. 
 
 DIES UTILES (Lat). Useful or available 
 days. Days in which an heir might apply to 
 the judge for an inheritance. Cooper, Inst; 
 Calvinus, Lex. ; Du Cange. 
 
 DIET. A general assembly is sometimes 
 so called on the continent of Europe. 1 Bla. 
 Com. 147. 
 
 DIETA (Lat.). A day's journey; a day's 
 work ; a day's expenses. A reasonable day's 
 journey is said to be twenty miles, by an 
 old computation. Cowell ; Spelman, Gloss. ; 
 Bracton 235 b; 3 Bla. Com. 218. 
 
 DIFFERENCE. A contention over a ques- 
 tion of truth, or fact, or law, as distinguished 
 from a non-agreement over a question of 
 valuation. 28 L. J. Ch. 184. 
 
 DIGEST. A compilation arranged in an 
 orderly manner. 
 
 The name is given to a great variety of topical 
 compilations, abridgments, and analytical indices 
 of reports, statutes, etc. When reference is made 
 to the Digest, the Pandects of Justinian are intend- 
 ed, they being the authoritative compilation of the 
 civil law. As to this Digest and the mode of citing 
 it, see Pandects. Other digests are referred to by 
 their distinctive names. For some account of di- 
 gests of the civil and canon law, and those of In- 
 dian law, see Civil Law, Code, and Canon Law. 
 
 The digests of English and American law are for 
 the most part deemed not authorities, but simply 
 manuals of reference, by which the reader may find 
 his way to the original cases which are authorities. 
 1 Burr. 364 ; 2 Wils. 1, 2. Some of them, however, 
 which have been the careful work of scholarly law- 
 yers, possess an independent value as original re- 
 positories of the law. Bacon's Abridgment, which 
 has long been deservedly popular in this country, 
 and Comyns's Digest, also often cited, are examples 
 of these. The earlier English digests are those of 
 Statham (Hen. VI.), Fitzherbert, 1516, Brooke, 1573, 
 Rolle, Danvers, Nelson, Viner, and Petersdorf. Of 
 these Rolle and Viner are still not infrequently 
 cited, and some others rarely. The several digests 
 by Coventry & Hughes, Harrison, Fisher, Jacobs, 
 and Chitty, together with the subsequent annual 
 digests of Emden and of Mews, afford a convenient 
 index for the American reader to the English re- 
 ports. In most of the United States one or more 
 • digests of the state reports have been published, and 
 in some of them digests or topical arrangements of 
 the statutes. There are also digests of the federal 
 statutes. 'The American Digest, Century Edition, 
 covers the reports of the federal and state courts 
 from 1658 to 1896, inclusive, brought down to cover 
 1906 by the Decennial Edition, and brought down to 
 date by the American Digest, Key-Number Series. 
 The Federal Reporter Digest digests the series of 
 Federal Reporters to vol. 200 and the United States 
 Supreme Court decisions from vols. 106 to 225 U. S., 
 comprised in vols. 21-32 Supreme Court Reporter. 
 The latter, to 225 U. S., are also digested in the 
 Digest of United States Supreme Court Reports. 
 Dane's Abridgment of American Law has been com- 
 mended by high authority (Story's article in N. 
 Am. Rev. July, 1826), but it has not maintained a 
 position as a work of general use. There are also 
 numerous digests of cases on particular titles of the 
 law. 
 
 DIGNITARY. An ecclesiastic who holds a 
 dignity or benefice which gives him some 
 pre-eminence over mere priests and canons, 
 such as a bishop, archbishop, prebendary, 
 etc. Burn, Law Diet 
 
 DIGNITIES. In English Law. Titles of 
 honor. 
 
 They are considered as incorporeal here- 
 ditaments. The character of our government 
 forbids their admission into the republic. 
 
 D I LAC I ON. In Spanish Law. The time 
 
 granted by law. or by the judge to parties 
 litigant for the purpose of answering a de- 
 mand or proving some disputed fact 
 
 DILAPIDATION. A species of ecclesiasti- 
 cal waste which occurs whenever the incum- 
 bent suffers any edifices of his ecclesiastical 
 living to go to ruin or decay. It is either 
 voluntary, by pulling down or permissive, by 
 suffering the church, parsonage-houses, and 
 other buildings thereunto belonging, to de- 
 cay. And the remedy for either lies either in 
 the spiritual court, where the canon law pre- 
 vails, or in the courts of common law. It is 
 also held to be good cause of deprivation if 
 the bishop, parson, or other ecclesiastical per- 
 son dilapidates buildings or cuts down timber 
 growing on the patrimony of the church, un- 
 less for necessary repairs ; and that a writ 
 of prohibition will also lie against him in the 
 common-law courts. 3 Bla. Com. 91. 
 
 DILATORY DEFENCE. In Chancery 
 Practice. One the object of which is to dis- 
 miss, suspend, or obstruct the suit, without 
 touching the merits, until the impediment or 
 obstacle insisted on shall be removed. 
 
 DILATORY PLEA. One which goes to de- 
 feat the particular action brought, merely, 
 and which does not answer as to the general 
 right of the plaintiff. See Plea. 
 
 DILIGENCE. The degree of care and at- 
 tention which the law exacts from a person 
 in a particular situation or a given relation' 
 to another person. The word finds its most 
 frequent application in the law of Bailments 
 and of Negligence. Indeed it may be termed 
 the correlative of negligence. 
 
 DIME (Lat. decent, ten). A silver coin of 
 the United States, of the value of ten cents, 
 or one-tenth of the dollar. 
 
 DIMINUTION OF THE RECORD. Incom- 
 pleteness of the record of a case sent up from 
 an inferior to a superior court. 
 
 When this exists, the parties may suggest 
 a diminution of the record, and pray a writ 
 of certiorari to the court below to certify 
 the whole record; Bassler v. Niesly, 1 S. & 
 R. (Pa.) 472; Co. Entr. 232; 8 Yiner, Abr. 
 552; Cro. Jac. 597; Cro. Car. 91; Den v. 
 Carr. 15 N. C. 575; State v. Reid, 18 N. C. 
 382, 28 Am. Dec. 572; Hooper v. Royster, 1 
 Munf. (Va.) 119. See Alleging Diminution ; 
 Certiorari. 
 
 DINING CARS. While in the act of mak- 
 ing its interstate journey, such car is under 
 the control of congress, and equally it is so 
 when waiting for the train to be made up for 
 the next trip ; Johnson v. Southern Pac. Co., 
 196 U. S. 1, 25 Sup. Ct 158, 49 L. Ed. 363.
 
 DINING CARS 
 
 807 
 
 DIl'LoM KNTS 
 
 See Interstate Commerce Commission; Com- 
 mon Cabbies; Masteb and Servant ; Em- 
 ployer's LIABILITY. 
 
 DIOCESE. The territorial extent of a 
 bishop's jurisdiction. The circuit of every 
 bishop's jurisdiction. Co. Lilt. 94; 1 Bla. 
 Com. Ill; 2 Buru, Keel. Law L58. 
 
 Dioceses were divided into archdioceses 
 and those into rural deaneries, which were 
 divided into parishes. 
 
 DIOCESAN COURTS. See Consistobt 
 Courts; Church of England. 
 
 DIONYSIUS. The Collectio Dioni/svuia 
 
 was a collection and translation of the can- 
 ons of Eastern councils by a monk named 
 Dionysius Exiguus, living in Koine, but Scy- 
 thian by birth, about DUO A. D. It helped to 
 spread the notion that the popes can de- 
 clare, even if they cannot make the law for 
 the universal church, and thus to contract 
 the sphere of secular jurisprudence. 14 L. 
 Q. R. 20. 
 
 DIPLOMA. An instrument of writing, exe- 
 cuted by a corporation or society, certifying 
 that a certain person therein named is enti- 
 tled to a certain distinction therein mention- 
 ed. It is usually granted by learned institu- 
 tions to their members or to persons who 
 have studied in them. 
 
 Proof of the seal of a medical institution 
 and of the signatures of its officers ti 
 affixed, by comparison with the seal and sig- 
 natures attached to a diploma received by 
 the witness from the same institution, has 
 been held to be competent evidence of the 
 genuineness of the instrument, although the 
 witness never saw the officers write their 
 names; Einch v. Gridley's Ex'rs, 2fJ Wend, 
 i N. Y.) 469. 
 
 A diploma is evidence that a physician re- 
 ceived a degree from a medical institution; 
 Holmes v. Ilalde, 74 Me. 28, 43 Am. Rep. 
 567. 
 
 This word, which Is also written duploma, in the 
 civil law signifies letters Issued by a prince. They 
 are so called it is supposed, a duplicates tab 
 which Ovid Is thought to allude, 1 Amor, 1-, 2, 27, 
 when he says, Tunc ego vos duplices rebus pro no- 
 mine sensi. Sueton. in Augustum, c. "6. Iirissonius 
 p. 367. Seals also were called Dlplomata. Vlcat, 
 Diploma. See College. 
 
 DIPLOMACY. The science Which deals 
 with the means and methods by which the 
 intercourse between states is tarried on. See 
 Diplomatic Agents. 
 
 DIPLOMATIC AGENTS. Public officers 
 who have been commissioned according to 
 
 law to superintend and transact the affairs 
 of the government which has employed them, 
 in a foreign country. Yattel. liv. -1, c. 5. 
 
 The agents were formerly regarded as di- 
 vided into two general classes or orders. 
 Those of the first order were almost the per- 
 fect representatives of the government by 
 which they were commissioned: such were 
 
 legates, nuncios, internuncios, ambassadors, 
 rs, plenipotentiarii I the 
 
 second order did nut r-,, fully I their 
 
 government: the Lents, 
 
 ministers, charges d'affa 
 The classification of v so 
 
 far sanctioned as t<> I .!e ot 
 
 international law, v. it the 
 
 Congress of Vienna in 1815 and m 
 that of Aix-la-Ghapelle in 1818. Dnder this 
 Classification diplomatic 8 ok as fol- 
 
 lows: (1) Ambassadors, ordinary and • 
 ordinary, legates, and nuncios; (2 
 ministers, or ethers accredited t.> - 
 (3) ministers resident, accredited I 
 eigns; (4) Charges d'affaires, and other i 
 matic agents accredited to ministers of for- 
 eign affairs (whether bearing the title of 
 minister or not), and consuls charged with 
 diplomatic duties. See the several titles and 
 I »avis, Int. Law oh. vii. 
 
 DIPLOMATICS. The art of judging of an- 
 cient charters, public documents, or dip!' 
 and discriminating the true from the I 
 Encyc. Lond. 
 
 DIPSOMANIA. In Medical Jurisprudence. 
 A mental disease characterized hy an uncon- 
 trollable desire for Intoxicating drinks. An 
 irresistible impulse to Indulge in Intoxication, 
 either hy alcohol or other drugs. Ballard v. 
 L9 Neb. 61 1. 28 X. W. -71. As to how 
 far the law will held a party responsible for 
 acts committed while the mind is overwhelm- 
 ed hy the effects of liquor 
 
 DIRECT. Straightforward; not collateral. 
 The Onrust, 6 Blatchf. 533, Fed. Cae. No. 
 10,540. The direct line of descent is formed 
 by a series of relationships between persons 
 who descend successively one from the ether. 
 
 Evidence is termed direct which applies im- 
 mediately to the fact to be proved, without 
 any intervening process as distinguished 
 from circumstantial, winch applies imme- 
 diately to collateral facta supposed to have 
 a connection, near or remote, with the tai t 
 in controversy. 
 
 The examination in chief of a witi 
 called the direct examination. 
 
 DIRECT TAX. in Pollock v. Trust Co., 
 i:,7 r. s. 429, l.". sap. Ct < 
 759, it was said that In order to determine 
 whether a tax be direct within the mean- 
 in- of the constitution it must 
 tained whether the one upon whom, by 
 he burden of paying it is first cast, 
 can thereafter shift it to another i 
 
 ■ t, the tax would then he direct, 
 and bence, h. eious in other re- 
 
 spects it might be a duty, Impost or ex- 
 cise, it cannot he levied hy the rule of uni- 
 formity ami must he app This was 
 said in Knowltoii v. Moore, 17s Q. S. 11. 20 
 Sup. Ct TIT. 11 I- Ed. 969, to he a disputable 
 theory. It is said direct taxes within the 
 constitution are only capitation taxes, as ex-
 
 DIRECT TAX 
 
 868 
 
 DIRECTORS 
 
 pressed in that instrument, and taxes on real 
 estate ; Springer v. U. S., 102 U. S. 58G, 26 L. 
 Ed. 253 ; but the inclusion of rentals from real 
 estate was held to make it direct to that ex- 
 tent; Pollock v. Trust Co., 157 U. S. 429, 15 
 Sup. Ct. 673, 39 L. Ed. 759, where it is said, 
 although there have been from time to time 
 intimations that there might be some tax 
 which was not a direct tax nor included un- 
 der the words duties, imposts and excises, 
 such a tax for more than a hundred years 
 has as yet remained undiscovered. 
 
 Direct taxes include those assessed upon 
 property, person, business, income, etc., of 
 those who pay them; while indirect taxes 
 are levied upon commodities before they 
 reach the consumer, and are paid by those 
 upon whom they ultimately fall, not as taxes, 
 but as part of the market price of the com- 
 modity. Under the second head may be 
 classed the duties upon imports, and the ex- 
 cise and stamp duties levied upon manu- 
 factures ; Cooley, Taxation 10. 
 
 See Tax; Excise. 
 
 DIRECTING A VERDICT. See Verdict; 
 Jury. 
 
 DIRECTION. The order and government 
 of an institution; the persons who compose 
 the board of directors are jointly called the 
 direction. 
 
 Direction, in another sense, is nearly syn- 
 qnymous with instruction (q. v.). 
 
 In Practice. The instruction of a jury by a 
 judge on a point of law, so that they may 
 apply it to the facts before them. See 
 Charge. 
 
 That part of a bill in chancery which con- 
 tains the address of the bill to the court: 
 this must, of course, contain the appropriate 
 and technical description of the court. See 
 Bill. 
 
 DIRECTOR OF THE MINT. An officer 
 appointed by the president of the United 
 States, by and with the advice and consent 
 of the senate. He is the chief officer of the 
 bureau of the mint and is under the general 
 direction of the secretary of the treasury. 
 R. S. § 343. 
 
 DIRECTORS. Persons appointed or elect- 
 ed according to law to manage and direct the 
 affairs of a corporation or company. The di- 
 rectors collectively form the board of di- 
 rectors. 
 
 They are generally invested with certain 
 powers by the charter of the corporation, and 
 it is believed that there is no instance of a 
 corporation created by statute without pro- 
 vision for such a board of control, whether un- 
 der the name of directors, or, as they are 
 sometimes termed, managers or trustees, — 
 the latter designation being more frequent 
 In religious or charitable corporations. A 
 comprehensive work on corporations states 
 that the author has likewise found no in- 
 stance in which these officers were wanting; 
 
 3 Thomp. Corp. § 3850. The power to elect 
 directors has been held to be inherent and 
 not dependent upon statute; Hurlbut v. 
 Marshall, 62 Wis. 590, 22 N. W. 852. 
 
 As to the nature of the office and its pow- 
 ers very different views have been held, and 
 each is sustained by high authority. They 
 have been held to be the corporation itself 
 "to all purposes of dealing with others" and 
 not to "exercise a delegated authority in 
 the sense which applies to agents or attor- 
 neys ;" Shaw, C. J., in Burrill v. Bank, 2 
 Mete. (Mass.) 163, 35 Am. Dec. 395. Another 
 view, and probably the one which is the best 
 settled conclusion of judicial opinion in this 
 country, is that they are general agents; 
 Simons v. Min. Co., 61 Pa. 202, 100 Am. Dec. 
 628 ; State v. Smith, 48 Vt. 266 ; Chetlain v. 
 Ins. Co., 86 111. 220; President, etc., of Me- 
 chanics' Bank v. R. Co., 13 N. Y. 599 ; Good- 
 win v. Ins. Co., 24 Conn. 591. The question 
 is of importance with respect to the power of 
 directors to act outside of the home state of 
 the corporation, in order to do which, they 
 must act as agents; Bank of Augusta v. 
 Earle, 13 Pet. (U. S.) 519, 10 L. Ed. 274; 
 Wright v. Bundy, 11 Ind. 39S ; McCall v. 
 Mfg. Co., 6 Conn. 428. They are undoubted- 
 ly, in a certain sense, agents, but they are 
 agents of the corporation, not of the stock- 
 holders; they derive their powers from the 
 charter. They alone have the management 
 of the affairs of the corporation, free from 
 direct interference on the part of the stock- 
 holders ; Dana v. Bank, 5 W. & S. (Pa.) 246 ; 
 Bank of U. S. v. Dandridge, 12 Wheat. (U. 
 S.) 113, 6 L. Ed. 552; Dayton & C. R. Co. v. 
 Hatch, 1 Disn. (Ohio) S4. The stockholders 
 cannot perform any acts connected with the 
 ordinary affairs of the corporation; Conro 
 v. Iron Co., 12 Barb. (N. Y.) 27, 63 ; the dele- 
 gation of powers to the directors excludes 
 Control by the stockholders ; Union Gold Min. 
 Co. v. Nat. Bank, 2 Colo. 565. See Fleckner 
 v. Bank, 8 Wheat. (U. S.) 357, 5 L. Ed. 631 ; 
 Gashwiler v. Willis, 33 Cal. 11, 91 Am. Dec. 
 607. 
 
 In England it is held that the directors of 
 a company are in the position of managing 
 partners, and their mandate is the mandate 
 of the whole body of shareholders, not of 
 the majority only. A simple majority of the 
 shareholders cannot alter the mandate and 
 override the discretion of the directors; 
 [1906] 2 Ch. 34. The ultimate determination 
 of the management rests with the stockhold- 
 ers, when by the charter the powers of the 
 corporation are vested in them, or when it 
 is silent on that question and does not com- 
 mit the exclusive control to the directors; 
 Union Pac. R. Co. v. R. Co., 163 U. S. 564, 16 
 Sup. Ct. 1173, 41 L. Ed. 265. In this case the 
 stockholders had adopted a by-law provid- 
 ing that the board should have the whole 
 management of the property of the company, 
 and that they might delegate power to the 
 executive committee. The latter authorized
 
 DIRECTORS 
 
 8G9 
 
 DIRECTORS 
 
 the president to execute a contract and the 
 stockholders approved it and the action of 
 the committee, but the board never formally 
 acted; it was held that, as they had full 
 knowledge of it, they would be presumed to 
 have ratified it 
 
 It has been said that directors are special 
 agents of the corporation, and not g< 
 agents; Adriance v. Boome, 52 Barb. (N. Y.) 
 309; and this is the view which it is said 
 that in England "the ingenuity of the ; 
 has been taxed to demonstrate;" 3 Thoiup. 
 Corp. § 3969; LindL Partn. (4th ed. i 249. 
 Among the cases relied on as supporting this 
 view arc, 6 Exch. 796; 8 0. I \ H. L 
 
 Cms. 401 ; L. R. •", Eq. 31G; but the distinction 
 has been said not to be very satisfactory; 
 per Comstoek, J., in President, Directors & 
 Co. of Mechanics' Rank v. R. Co., 13 N. Y. 
 500. See Green's Rrico. Ultra Vires 470, n. 
 Although the weight of authority is as stat- 
 ed, it is nevertheless important to keep in 
 view the different theories held, in order to 
 weigh accurately the authorities upon th« 
 powers of directors, and to distinguish be- 
 tween them when they are to be applied to a 
 particular case. Directors have no common- 
 law powers; 3 Thomp. Corp- § 3978; but 
 only granted ones, although in dealing with 
 corporations courts sometimes ascribe to the 
 directors certain powers, termed implied 
 powers, which, however, in fact amount to 
 no more than a recognition by the courts of 
 the usages of business and acts done in the 
 course of business; id. But they have no 
 power to make changes in the fundamental 
 law of the corporation, their relation to it 
 being analogous to that of a legislature to 
 the constitution of the state ; id. § 3979. Ac- 
 cordingly, their power to make such changes 
 must be derived from the charter. They 
 may not change the membership or capital 
 of the corporation by increasing either; Chi- 
 cago City R. Co. v. Allerton, 18 Wall. (U. S.) 
 233, 21 L. Ed. 002; Com. v. Gill. 3 Whart 
 (Pa.) 228; Gill v. Balis, 72 Mo. 424; or re- 
 ducing the capital; Percy v. Millaudon, .". La. 
 568; Hartridge v. Rockwell, R. M. Charlt 
 2(;<>; nor make by-laws unless specially au- 
 thorized; Watson v. Printing Co.. 56 Mo. 
 App. 145; nor request or accept amendments 
 to the charter; Stark v. Burke, 9 La. Ann. 
 341; State v. Adams, 4-1 Mo. 570; Zabriskie 
 v. R. Co., 18 N. J. Eq. 178. 96 Am. Dec. 017; 
 Marlborough Mfg. Co. V. Smith. 2 Conn. 579 
 (but see contra, Dayton ft C. R. Co. v. Hatch. 
 1 Disney (Ohio) 84, which is doubted, :: 
 Thomp. Corp. § 3980, n. 7). They may alien 
 property in the course of business; 3 Thomp. 
 Corp. § 39S4 (and sec note on this subject; 
 Garrett v. Plow Co., 50 Am. Rep. 466) ; or 
 mortgage corporate propertj ; Sargent v. 
 Webster. 13 Mete. (Mass.) 497, If- Am. Dec. 
 743; Miller v. R. Co., 36 Vt 452; Augusta 
 Bank v. Ilamblet. 35 Me. 491 : Hendee v. 
 Pinkerton, 14 Allen (Mass.) 3S1 ; Hoyt v. 
 
 Thompson's Ex'r, 10 N. Y. 2<i7; or make an 
 assignment for the benefit of credit' rs i Mer- 
 rick v. Trustees of I Gill (Md I 59; 
 and see Thomp. Corp. chs. 145, 146, which 
 
 this subject and the validil 
 erential assignments by d 
 
 and of thems< 
 away corporate pro] 
 
 Bowser, 4s Pa. 29 ; En i John- 
 
 son, 24 Me. 490; nor Bell the - 
 than par; Sturges '■ 
 Fed. Cas. No. 13,568; in money or mo 
 worth; Chouteau, Harrison ft Yalle v. ! 
 7 Mo. App. 210 (but see Handley v. Stutz, 
 139 D. s. 417. 11 Sup. Ct 530, 35 L Ed. 227; 
 2 Thomp. Corp. § 1005; Stock); nor. 
 general rule, become surety, accommodation 
 Indorser, or guarantor; 3 Thomp. Corp. § 
 3990; but under urgenl necessity their as- 
 sumption of a debt of another to secure 
 from the common creditors an extension for 
 themselves has been held justified; I 
 v. Blakely, 34 Vt 134. See Zabriskie v. R. 
 Co., 23 How. (U. S.) 381. 16 L. Kd. 488. In 
 the usual course of business they have a gen- 
 eral power to borrow money; Fleckni 
 Bank, S Wheat. (U. S.) 338, 5 L. Ed. 631; 
 Ridgway v. Hank. 12 S. & R. (Pa. i 266, 14 
 Am. Dec. 681 ; and secure it by assigning 
 securities owned by the corporation; North 
 Hudson Mut Bldg. & Loan Ass'd v. Bank. 
 79 Wis. 81, 47 X. W. 300, 11 L. R. A. 845; 
 and one so dealing with them is not a: 
 with knowledge of a breach of trust by 
 them; Borland v. Haven. :;7 Fed. 394. They 
 may make, accept, or Indorse negotial 
 per; Stevens v. Hill. 2!> Me 133; but a • 
 director is not authorized to make corpo- 
 rate notes; Lawrence v. Gebhard. 41 Barb. 
 (N. Y.) 575. They may determine the sala- 
 ries of officers of the corporation; Waite v. 
 Min. Co.. 37 Vt. 608. Under the English de- 
 cisions the powers of corporations with re- 
 spect to borrowing money and making notes 
 are now restricted; 3 Thomp. Corp. J 
 n. 3. 
 
 While directors are not strictly trv. 
 yet they occupy a fiduciary position; 
 "son v. Ludeling, 21 Wall. (U. S.) 616, 22 L. 
 Ed. 492; European & N. a. i: 
 
 59 Me. 277; lloyle v. R. Co., ."1 X. S 
 13 Am. Rep. 5'.'.~» : Koehler v. Iron Co., 2 
 Black (U. s.i 715, 17 I.. Ed. 339; Oorbett 
 v. Woodward, 5 Sawy. 403, Fed. Ob , N i 
 3,223; Deaderlck v. Wilson, 8 Baxt (Tenn.) 
 108; Scott v. 1 lepeyster, l Edw. Ch. I N. v. | 
 513; Covington & L. It. Co. v. B Heirs, 
 
 Bush (Ky.) 468; Hale v. Bridge Co., S 
 166; Black v. i . 24 N. J. V.<\. 
 
 463f; Sweeny v. Refining Co., 30 W. Va. ■! h'«. 
 4 s. B. 431, 8 Am. S - : Moraw. Priv. 
 
 Corp. 516; and by some leading authorities 
 they are termed trustee-: Walworth, Ch., in 
 Robinson v. Smith, :: Paige (N. Y.i 222, 21 
 Am. 1 Hardwicke, kd. Ch., in 2 Atk. 
 
 Bent v. Priest, 86 Mo. 475.
 
 DIRECTORS 
 
 870 
 
 DIRECTORS 
 
 Directors, in buying shares from other 
 stockholders, when there is a possibility of 
 reselling at a profit, are not bound to dis- 
 cover all the facts ; their fiduciary character 
 does not extend that far; [1902] 2 Ch. 421. 
 But a director upon whose action the value 
 of shares depends cannot avail of the knowl- 
 edge of what his own action will be to ac- 
 quire shares from those whom he intention- 
 ally keeps in ignorance of his expected ac- 
 tion and the resulting value of the shares. 
 This rule was applied in view of the special 
 circumstances: That the director owned 
 three-fourths of the stock, was at the time 
 of his purchase administrator general of the 
 company, with large powers, and engaged in 
 negotiations which finally led to a sale of 
 the company's land to the government at a 
 price which greatly enhanced the value of 
 the stock; Strong v. Repide, 213 U. S. 419, 
 29 Sup. Ct. 521, 53 L. Ed. 853, citing Stewart 
 v. Harris, 69 Kan. 49S, 77 Pac. 277, 66 L. R. 
 A. 261, 105 Am. St. Rep. 178, 2 Ann. Cas. 873, 
 and Oliver v. Oliver, 118 Ga. 362, 45 S. E. 
 232, and not deciding as to whether the rule 
 applied to the bare relationship between di- 
 rector and shareholder. 
 
 They are charged with trustees' duties and 
 bound to care for corporation property and 
 manage its affairs in good faith ; and for 
 violation of that duty, resulting in waste of 
 its assets, injury to its property, or unlaw- 
 ful gain to themselves, they are liable to ac- 
 count in equity the same as ordinary trus- 
 tees; Bosworth v. Allen, 168 N. Y. 157, 61 
 N. E. 163, 55 L. R. A. 751, 85 Am. St. Rep. 
 667, where the directors conspired to wreck 
 the corporation. They are held not trustees 
 in the strict and technical sense; Booth v. 
 Robinson, 55 Md. 419; Wallace v. Savings 
 Bank, 89 Tenn. 649, 15 S. W. 448, 24 Am. St 
 Rep. 625; at most directors of a bank can 
 only be considered implied trustees; Emer- 
 son v. Gaither, 103 Md. 564, 64 Atl. 26, 8 L. 
 R. A. (N. S.) 738, 7 Ann. Cas. 1114; Landis 
 v. Saxton, 105 Mo. 486, 16 S. W. 912, 24 Am. 
 St. Rep. 403; Appeal of Spering, 71 Pa. 11, 
 10 Am. Rep. 684; the liability of a bank di- 
 rector is held to be that of a mandatary or 
 gratuitous bailee, who undertakes without 
 compensation to do something for another, 
 and he is therefore held only to that degree 
 of care which prudent men in like circum- 
 stances ordinarily give to the same duties. 
 In Swentzel v. Bank, 147 Pa. 140, 23 Atl. 405, 
 415, 15 L. R. A. 305, 30 Am. St. Rep. 718, the 
 position of Judge Sharswood in the earlier 
 case is approved and the court said : "The 
 ordinary care of a business man in his own 
 affairs means one thing ; the ordinary care of 
 a gratuitous mandatary is quite another mat- 
 ter. The one implies an oversight and 
 knowledge of every detail of his business ; 
 the other suggests such care only as a man 
 can give in a short space of time to the busi- 
 ness of other persons, for which he receives 
 uo compensation." The customs and meth- 
 
 ods of a community in which a banking busi- 
 ness is done are, for such community, a 
 standard of prudence and diligence by which 
 the responsibility of bank officers and direc- 
 tors are to be tested ; Wheeler v. Bank, 75 
 Fed. 7S1. The degree of care, skill and judg- 
 ment depends upon the subject to which it 
 is to be applied, the particular circumstanc- 
 es of the case, and the usages of the busi- 
 ness; North Hudson Mut. Bldg. & Loan 
 Ass'n v. Childs, 82 Wis. 460, 52 N. W. 600, 
 33 Am. St. Rep. 57; Killen v. Barnes, 106 
 Wis. 546, 82 N. W. 536; Savings Bank of 
 Louisville's Assignee v. Caperton, 87 Ky. 300, 
 S S. W. 885, 12 Am. St. Rep. 488; Warren 
 v. Robison, 19 Utah, 289, 57 Pac. 287, 75 Am. 
 St. Rep. 734. The question of negligence is 
 ultimately a question of fact under all the 
 circumstances ; Briggs v. Spaulding, 141 U. 
 S. 132, 11 Sup. Ct. 924, 35 L. Ed. 662. 
 
 Knowledge of all the affairs of a bank 
 cannot be imputed to the directors to charge 
 them with liability ; Mason v. Moore, 73 Ohio 
 St. 275, 76 N. E. 932, 4 L. R. A. (N. S.) 597, 
 4 Ann. Cas. 240. They cannot be held civilly 
 liable to one deceived to his injury by false 
 representations as to the bank's financial 
 condition, contained in the official report to 
 the comptroller of the currency, made and 
 published under U. S. R. S. § 5211, where 
 they merely negligently participated in or 
 assented to such representations, since the 
 exclusive test of their liability is furnished 
 by U. S. R. S. § 5239, which makes a know- 
 ing violation of the provisions of the title 
 relating to national banks a prerequisite to 
 such liability ; Yates v. Bank, 206 U. S. 158, 
 27 Sup. Ct. 63S, 51 L. Ed. 1002. 
 
 In many other cases the degree of care re- 
 quired is held to be that which a prudent man 
 exercises about his own affairs ; Wallace v. 
 Bank, 89 Tenn. 630, 15 S. W. 448, 24 Am. 
 St Rep. 625; Marshall v. Bank, 85 Va. 676, 
 8 S. E. 586, 2 L. R. A. 534, 17 Am. St. Rep. 
 84; Union Nat. Bank ,v. Hill, 148 Mo. 380, 
 49 S. W. 1012, 71 Am. St Rep. 615 ; Ackerman 
 v. Halsey, 37 N. J. Eq. 356; Horn Silver 
 Min. Co. v. Ryan, 42 Minn. 196, 44 N. W. 56. 
 It is said they are not merely required to be 
 honest, but they must also bring to the dis- 
 charge of the duties they undertake ordinary 
 competency. They cannot excuse impru- 
 dence or indifference by showing honesty of 
 intention coupled with gross ignorance and in- 
 experience, or coupled with an absorption of 
 their time and attention in their private af- 
 fairs; Warner v. Penoyer, 91 Fed. 587, 33 
 C. C. A. 222, 44 L. R. A. 761; Williams v. 
 McKay, 46 N. J. Eq. 25, 18 Atl. 824. The 
 ordinary care and prudence required of bank 
 directors is held to include something more 
 than officiating as figureheads. They may 
 commit the business as defined to duly au- 
 thorized officers, but this does not absolve 
 them from the duty of reasonable supervi- 
 sion ; Martin v. Webb, 110 U. S. 7, 3 Sup. Ct 
 428, 2S L. Ed. 49; nor ought they to be per-
 
 DIRECTORS 
 
 871 
 
 DIRECTORS 
 
 rnitted to be shielded from liability because 
 of want of knowledge of wrongdoing, if that 
 ignorance is the result of gross inattention; 
 Briggs v. Spaulding, 141 U. S. 132, 11 Sup. 
 Ct. 924, 35 L. Ed. 662. 
 
 It is the duty of the directors of a national 
 bank to maintain a supervision of its affairs ; 
 to have a general knowledge of the manner 
 in which its business is conducted and of 
 the character of that, business, and to have 
 at least such a degree of Intimacy with its 
 
 affairs as to know to whom and apOO 
 ity Its large linos of credit are - 
 and generally to know of and give directions 
 as to the important and general affairs of 
 the bank, of which the cashier execuh 
 details; Gibbons v. Anderson, SO Fed 
 they cannot shift such duties upon the ex- 
 ecutive officers; Warren v. Robison, 19 Utab 
 289, 57 Pac. 287, 75 Am. St. Rep. 734. They 
 will lie presumed to have known what they 
 ought to have known; Marshall v. Bank, 85 
 Va. 676, 8 S. E. 586, 2 L. R. A. 534, IT Am. 
 St. Rep. 84; Martin v. Webb, 110 U. S. 7, 3 
 Sup. Ct 428, 28 L. Ed. 
 
 Directors also occupy a fiduciary relation 
 to creditors, for whom they have been said 
 to be quasi trustees, and when the corpora- 
 tion becomes insolvent, they become trustees 
 for the creditors and stockholders; Bradley 
 v. Farwell, 1 Holmes 433, Fed. Cas. No. 1,779; 
 Clark v. San Francisco, 53 CaL 300; Good 
 v. Sherman, 37 Tex. GOO. Where directors 
 of an insolvent corporation confessed a judg- 
 ment against it In favor of one of themselves 
 to give him an advantage by priority of lien 
 over another creditor, about to obtain judg- 
 ment, the two judgments were placed upon 
 the same footing; Coons v. Tome, 9 Fed. 532. 
 See Thomp. Liab. of Dir. 397 ; Good in v. 
 Canal Co., 18 Ohio St. 169, 98 Am. Dec. 95. 
 Directors are held personally responsible for 
 acts of misfeasance or gross negligence, or 
 for fraud and breach of trust; L. R. 5 II. L. 
 480; Lewis v. Steel Works, 50 Vt. 477; Ap- 
 peal of Spering, 71 Pa. 11, 10 Am. Rep. 084; 
 OS Law T. 380; Mutual Bldg. Fund & Dollar 
 Sav. Bank v. Bosseiux, 3 led. 817. An ac- 
 tion to enforce this responsibility must be 
 brought on behalf of all the stockholders, 
 and not by a single one; Craig v. Gregg, 83 
 Pa. 19; and cannot be brought by a creditor; 
 Zinn v. Mendel, 9 W. Va. 580; contra, Tate 
 v. Bates, 118 N. C 287, 24 S. E. 482, .".1 Am. 
 St. Rep. 719, where it is held that an action 
 will lie against them for any injury to the 
 corporation or a creditor by their fraud, 
 deceit, neglect, or other misconduct It is 
 held to be the duty of hank directors to see 
 that the directions of the hanking laws are 
 complied with and that' depositors may, in 
 the absence of a statute to the contrary, 
 maintain an action to recover losses result- 
 ing from a breach of such duty ; Boyd v. 
 Schneider, 131 Fed. 223, 65 C. C. A. 209, re- 
 versing 124 Fed. 239. In Brinckerhoff v. 
 
 Bostwick, 88 N. T. 52, it was said the lia- 
 bility of directors for violations of their du- 
 ty, and the jurisdiction of equity to afford 
 redress to the corporation and it- share- 
 holders, exist Independently of statute This 
 was a proceeding by a | and 
 
 in Dykman v. Keeney, 154 N. Y. 
 k. 894, it was referred to to si. ■.-.. ■:. ; 
 tion in equity will lit •. and 
 
 it was said: There is a wide J dif- 
 
 ference between such a case and 
 : be action is by the corpoi al Ion ■ 
 delinquent dii e, tors. 
 
 A director is an agent of the corpor 
 and accounts primarily with the corpora- 
 tion, which holds the legal title to the b 
 but there is no privity at law between a 
 
 older. and the directors, and 
 equity is generally the proper tribunal in 
 which to enforce his rights, which are equi- 
 table and not legal; Emerson v. Gaither, 103 
 Md. 564, 64 At I. L":. 8 L. K. A. (N. B 
 7 Ann. Cas. 1114, where it was held that 
 a receiver may proceed in equity to hold 
 hank directors liable for losses caused by 
 their permitting illegal loans and declaring 
 improper dividends. See also North Hudson 
 Mut. Building & Loan Ass'n v. Chil 
 Wis. 460, 52 N. W. 600, 33 Am. St. Sep. 57; 
 Robinson v. Hall. 63 Fed. 222, 12 C. 
 074; Hodges v. Screw Co., 1 K. I. 312, 53 
 Am. Dec. 624; Williams v. McKay, 40 N. J. 
 
 Am. Rep. 775; CockriU v. C 
 86 Fed. 7, 29 G. C. A. 529. In the Last 
 it was said the office of a director is so 
 much akin to those of a trustee that in 
 many cases no substantial reason can be 
 given for exempting directors from that de- 
 gree of control by a court of chancery which 
 such courts ordinarily exercise over trus- 
 tees; and to the same effect BoSWOlth v. 
 Allen, 10S N. Y. 157, 61 N. E. 163, 55 L. R. 
 A. 751, 85 Am. St. Rep. 667, where the charge 
 against the directors was waste of 
 assets and unlawful gain to themselves. 
 Other New York cases restricted the right 
 of a receiver to bring an action against di- 
 rectors in equity where the charge against 
 them was negligent and wasteful conduct 
 and a violation of the banking laws in many 
 respects, and held that an action nt law was 
 the proper remedy ; Dykman v. Keeney. 154 
 N. Y. 483, 48 N. E. 894, following O'B 
 Fitzgerald, 143 N. Y. ::77. 38 N. E. 371; 
 Stephens v. Overstolz, 43 Fed. 771. in a 
 case In which it did not appear that an ac- 
 counting was necessary, it was held that the 
 remedy of a receiver was at law; Thompson 
 v. Greeley. 107 Mo. .".77. 17 s. w. 
 
 Directors are not liable for the fraud of 
 agents employed by them; 26 w. k. 117; 
 Thomp. Liab. of Dir. 355. Directors of a 
 national bank are not insurers of the fideli- 
 ty of its agents, and are not responsil 
 losses resulting from the wrongful act or 
 omission of other directors or agents, un-
 
 DIRECTORS 
 
 872 
 
 DIRECTORS 
 
 less the loss Is a consequence of their own 
 neglect of duty ; Briggs v. Spaulding, 141 
 U. S. 132, 11 Sup. Ct. 924, 35 L. Ed. 662. 
 It is their duty to use their best efforts 
 to promote the interests of the stockholders, 
 and they cannot acquire any adverse inter- 
 ests; Wardell v. R. Co., 4 Dill. 330, Fed. 
 Cas. No. 17,164 ; Farmers' & Merchants' Bank 
 of Los Angeles v. Downey, 53 Cal. 466, 31 
 Am. Rep. 62; European & N. A. Ry. Co. v. 
 Poor, 59 Me. 277; Ryan v. R. Co., 21 Kan. 
 365. A director may become a creditor of 
 a corporation, where his action is not taint- 
 ed with fraud or other improper act; Bor- 
 land v. Haven, 37 Fed. 394. It is said to be 
 the rule that contracts made by a director 
 with his company are voidable ; L. R. 6 H. 
 L..1S9; Wardell v. R. Co., 4 Dill. 330, Fed. 
 Cas. No. 17,164 ; Appeal of Rice, 79 Pa. 168 ; 
 Twin Lick Oil Co. v. Marbury, 91 U. S. 587, 
 23 L. Ed. 328; President & Trustees of City 
 of San Diego v. R. Co., 44 Cal. 106. In many 
 instances the courts have held them abso- 
 lutely void. In a leading English case it 
 was held that the directors were agents of 
 the corporation and could not be permitted 
 to enter into engagements or have any per- 
 sonal interest which might possibly conflict 
 with the interests of the corporation, and 
 that no question could be raised as to the 
 fairness of such a contract; 1 McQ. H. L. 
 (Sc.) 461 ; and In several American cases tak- 
 ing this view it is considered tbat directors 
 were subject to the rule applying to all per- 
 sons standing in relations of trust and in- 
 volving duties inconsistent with their deal- 
 ing with the trust property as their own ; 
 Gardner v. Ogden, 22 N. Y. 327, 78 Am. Dec. 
 192 ; Port v. Russell, 36 Ind. 60, 10 Am. Rep. 
 5; Haywood v. Lincoln Lumber Co., 64 Wis. 
 639, 26 N. W. 184. A high authority says, 
 "there is no sound principle of law or equity 
 which prohibits" such contracts, if entered 
 into in good faith, and where there is a 
 quorum of directors on the other side of 
 the contract present, so that the adoption of 
 the measure does not depend on the vote of 
 the interested director, and even in the lat- 
 ter case the contract is good at law. Be- 
 cause, however, he is on both sides of it, eq- 
 uity will closely scrutinize it and set it aside 
 if it violates the good faith which the cir- 
 cumstances require ; 3 Thomp. Corp. § 4059 ; 
 but in many cases contracts of a corpora- 
 tion with directors, fairly made, have been 
 upheld; Jesup v. R. Co., 43 Fed. 483; Barr 
 v. Glass Co., 51 Fed. 33 ; Illinois Pneumatic 
 Gas Co. v. Berry, 113 U. S. 322, 5 Sup. Ct. 
 525, 28 L. Ed. 1003; Barnes v. Brown, 80 
 N. Y. 527; Smith v. Skeary, 47 Conn. 47. 
 The true rule to be ascertained from the 
 cases is probably, that as to such contract 
 there is a presumption of invalidity which 
 casts upon the party claiming under such 
 contracts the burden of showing that no un- 
 due advantage was taken or resulted from 
 
 the relation, and the evidence must clearly 
 show such fairness and good faith ; Skinner 
 v. Smith, 134 N. Y. 240, 31 N. E. 911 ; War- 
 dell v. R. Co., 103 U. S. 651, 26 L. Ed. 509. 
 Accordingly, the more reasonable view is 
 that first stated, and it is supported by the 
 weight of American authority; 3 Thomp. 
 Corp. § 4061 ; but courts holding the extreme 
 view that such contracts are void will not 
 enforce the fairest contract if the corpora- 
 tion exercises the option to set it aside; id. 
 
 Some courts take the view that in all 
 cases of such contracts their nature and 
 terms and the circumstances under which 
 they were made must be taken into consid- 
 eration, and that after having been subject- 
 ed to careful scrutiny they will be enforced 
 if for the benefit of the corporation ; Stewart 
 v. R. Co., 41 Fed. 736; Appeal of Hammond, 
 123 Pa. 503, 16 Atl. 419. A corporation act- 
 ing in good faith and with the sole object 
 of continuing a business which promises to 
 be successful, may give a mortgage to direc- 
 tors who have lent their credit to it, in order 
 to induce a continuance of that credit, and 
 to obtain renewals of maturing paper at a 
 time when it is in fact a going business and 
 expects to continue in business, although 
 its assets may not in fact equal its indebted- 
 ness ; Sandford Fork & Tool Co. v. Howe, 
 Browne & Co., 157 U. S. 312, 15 Sup. Ct. 621, 
 39 L. Ed. 713. See, generally, 3 Thomp. Corp. 
 §§ 4059 to 4075 ; note by J. C. Harper ; Cook 
 v. Sherman, 20 Fed. 175, and one by Dr. 
 Francis Wharton; Meeker v. Iron Co., 17 
 Fed. 53. This rule extends even to cases 
 where a majority of directors in one corpo- 
 ration contract with another corporation in 
 which they are directors; Green's Brice, Ul- 
 tra Vires 479, n. ; Attaway v. Bank, 93 Mo. 
 485, 5 S. W. 16. A railroad company de- 
 sired to purchase the entire property of a 
 canal company, both companies having the 
 same president, who by a purchase of a ma- 
 jority of the stock of the canal company 
 at nominal rates obtained the election of di- 
 rectors favorable to the railroad company. 
 Through collusive legal proceedings the rail- 
 road company purchased the canal property 
 at a price which was grossly inadequate. 
 The sale was set aside as a sale by a trustee 
 to himself, neither in good faith nor for an 
 adequate consideration; Goodin v. Canal Co., 
 18 Ohio St. 169, 98 Am. Dec. 95. The same 
 principles are supported by many authori- 
 ties; Koehler v. Iron Co., 2 Black (U. S.) 
 715, 17 L. Ed. 339 ; Cook v. Mill Co., 43 Wis. 
 433; Stewart v. R. Co., 3S N. J. L. 505; 
 Rice's Appeal, 79 Pa. 16S. 
 
 In some cases the question has arisen as 
 to the effect of a minority only of the di- 
 rectors being interested in both companies. 
 A contract made between two corporations 
 through their respective boards of directors 
 is not voidable at the suit of one of the par- 
 ties thereto from the mere circumstance that
 
 DIRECTORS 
 
 873 
 
 DIRECTORS 
 
 a minority of its board of directors are also 
 directors of the other company ; U. S. Boi- 
 ling Stock Co. v. B. EL, 34 Ohio st. 150, 
 32 Am. Rep. 380, where the court said it had 
 found do case holding Buefa a contracl in- 
 valid from the mere fact that a minority of 
 the directors of one company ate also di- 
 rectors of the other company, and, "in our 
 judgment, where a majority of the board 
 arc not adversely Interested and have no 
 adverse employment, the right to avoid the 
 contract or transaction does not exist with- 
 out proof of fraud or unfairness;" id. ; 
 v. Ry. Co., 10 Fed. 413; Harts v. Brown, 
 77 111. 2^G. This rule is criticised by Mr. 
 Harpi c in a note to Cook v. Sherman, 20 
 Fed. 180, upon the ground that the corpora- 
 tion is entitled to a full board of disinterest- 
 ed directors, in another Case it was said: 
 "A director whose personal interests are ad- 
 verse to those of the corporation has no 
 righl to be or act as a director. As soon as 
 he fiuds that he has personal interests in 
 conflict with those of the company lie ought 
 to resign ;" Goodin v. Canal Co., 18 Ohio 
 St. 183, 98 Am. Dec. 95. In considering th< 
 same subject McCrary, J., said: "Besides, 
 where shall we draw the line? If the pres- 
 ence of two interested directors in the board 
 at the time of the ratification does not viti- 
 ate the act, would the presence of a larger 
 number of such directors have that effect, 
 and, if so, what number." Thomas v. R. Co., 
 2 Fed. 879. On appeal his judgment was 
 affirmed and the supreme court per Miller, J., 
 said, "We concur with the circuit judge that 
 no such contract as this can be enforced in 
 a court of equity where it is resisted and 
 its immorality is brought to light . . . 
 Such contracts are not absolutely void, but 
 are voidable at the election of the parties 
 affected by the fraud. It may oft en occur 
 that, notwithstanding the vice of the trans- 
 action, namely, the directors or trusl 
 a majority of them, being interested in op- 
 position to the interest of those whom they 
 represent, and in reality parties to both 
 sides of the contract, that it may be one 
 which those whose confidence is abused may 
 prefer to ratify or submit to. It is, there- 
 fore, at the option of these latter to avoid 
 it, and, until some act of theirs indicates 
 such a purpose, it is not a nullity." Thomas 
 v. R. Co., 109 U. S. 524, 3 Sup. Ct. 315, 27 
 L. Ed. 1018. 
 
 Arrangements made by directors of a rail- 
 road company to secure from it unusual ad- 
 vantages through the medium of a new com- 
 pany in which they are to be stockholders, 
 and which is to receive valuable contracts 
 from the railroad company, are not to be 
 enforced by the courts; Wardell v. R. Co., 
 103 U. S. 651, 26 L. Ed. 509, affirming War- 
 dell v. R. Co., 4 Dill. 330, Fed. Cas. No. 
 17.164; such contracts cannot he made or 
 ratified by a board of directors including 
 
 members of the construction company and 
 ar.- void ; Thomas v. B. Co., I 
 Sup. Ct. 315, 27 E. Ed- 1018; hut a re< • 
 may he had on such a tor work 
 
 actually benefiting the rail! puny, 
 
 on a quantum m< ruit ; id. 
 
 Third parties, without notice, are 
 bound to know of limitation 
 directors by by-laws or otb 
 Ultra Vires 17 1 ; L. B, G 
 . iu Cush, (Mass.) l : bu 
 62 x. V. 240; Salem Bank v. ; 
 17 Mass. 1, Am. Dec. 111. When Con 
 as a board, the directors are held 
 
 ill the corporate powers; Boyt v. 
 Thompson's Ez'r, 19 N. v. 207; Burrill v. 
 Hank, 2 Mete. (Mass.) 163, 36 Am. Dec. 
 As principals they can delegate the 
 formance of acts which they them 
 perform; Jones v. -Williams, 139 Mo. 1, 39 
 
 S. W. 486, 40 s. w. 353, :;7 E. K. A. »;-_•. 61 
 Am. St. Bep. 136, where it is held that with- 
 out statutory authority directors ha\ 
 power to delegate to agents, officers or 
 utive committees the power to transact, not 
 only ordinary business, but business requir- 
 ing the highest degree of judgment. These 
 agents or managing officers have Incidental 
 power to employ all assistants and to do all 
 acts necessary properly to conduct the busi- 
 ness over which they have charge. Formal 
 action of the board of directors is not neces- 
 sary in order to confer the authority. Tin- 
 power expressly given by statute to appoint 
 such subordinate officers and agents as the 
 business of the company may require does 
 not limit nor diminish the common-law 
 er to delegate authority. 
 
 Where the charter does not otherwise pro- 
 vide, it is held that a banking corporation 
 may be represented by its cashier in trans- 
 actions outside of his ordinary duties, with- 
 out his authority to do so being in writing 
 or appearing upon the record of the pi" 
 IngS of the directors. His authority may 
 be by parol and inferred from eircums: 
 It may be inferred from the general man 
 ner in which, for a period sufficiently long 
 to establish a settled course of business, he 
 has been allowed to conduct its affair-. It 
 may be implied from the conduct or acqui- 
 escence Of the directors; Martin v. Webb. 
 110 U. S. 7, 3 Sup. <'t. 428, 28 I.. Ed. 49; 
 Putnam v. U. S.. L62 1. S. 713, 16 Sup. Ct. 
 923, in I.. Ed. ills:, statutes requiring a 
 corporation to be managed by directors, but 
 authorizing' them to appoint such subordi- 
 nate officers and agents as the business may 
 require, do not prevent the directors from 
 entrusting the entire management of the 
 business to a president, as this is not a del- 
 egation oi corporate powers, but a mei 
 thorizatlon to perform the business for and 
 in the name of the corporation; Jo- 
 Williams. 139 Mo. l. 39 s. w. 186, kj s. w. 
 353, o7 L. R. A. 682, 01 Am. St, Rep. 436.
 
 DIRECTORS 
 
 874 
 
 DIRECTORS 
 
 This may be done either by express resolu- 
 tion or by acquiescence in a course of deal- 
 ing. A person dealing with the president of 
 a corporation in the usual manner, and with- 
 in the powers which the president has been 
 accustomed to exercise without the dissent 
 of the directors, would be entitled to assume 
 that the president had actually been invest- 
 ed with those powers; Morawetz, Priv. Corp. 
 § 538; Jones v. Williams, 139 Mo. 1, 39 S. 
 W. 486, 40 S. W. 353, 37 L. R. A. 6S2, 61 
 Am. St. Rep. 436. 
 
 It has, however, been contended that, as 
 the directors are agents, they cannot dele- 
 gate their authority; Gillis v. Bailey, 21 N. 
 H. 149; Charlestown Boot & Shoe Co. v. 
 Dunsmore, 60 N. H. 85; and see Canada-At- 
 lantic & Plant S. S. Co. v. Flanders, 145 Fed. 
 875, 76 C. C. A. 1 (dictum); 20 Harv. D. 
 Rev. 225, where it is said there is curiously 
 little authority on this point. 
 
 The powers of directors of eleemosynary 
 corporations are much greater than those of 
 moneyed corporations; State v. Adams, 44 
 Mo. 570. Unless the charter provides other- 
 wise, directors need not be chosen from 
 among the stockholders; L. R. 5 Ch. Div. 
 306; State v. McDaniel, 22 Ohio St. 354. 
 
 Directors de facto are, presumably, direc- 
 tors de jure, and their acts bind the com- 
 pany ; L. R. 7 Ch. 5S7. A director who is 
 permitted to act as such after he has sold 
 all his stock, is a director de facto; Wile & 
 Brickner Co. v. Land Co., 4 Misc. 570, 25 
 N. Y. Supp. 794. See De Facto. 
 
 Their liability for acts expressly prohibit- 
 ed by the company's charter is not created 
 by force of statutory prohibition. The per- 
 formance of acts which are illegal or pro- 
 hibited by law may subject the corporation 
 to a forfeiture of its franchises and the di- 
 rectors to criminal liability; but this would 
 not render them civilly liable for damages. 
 Their liability to the corporation for dam- 
 ages caused by unauthorized acts rests upon 
 the common-law rule, which renders every 
 agent liable who violates his authority, to 
 the damage of his principal. A statutory 
 prohibition is material under these circum- 
 stances merely as indicating an express re- 
 striction placed upon the powers delegated 
 to the directors when the corporation was 
 formed ; Briggs v. Spaulding, 141 U. S. 132, 
 11 Sup. Ct. 924, 35 L. Ed. 662; Hicks v. 
 Steel, 142 Mich. 292, 105 N. W. 767, 4 L. R. 
 A. (N. S.) 279, where the liability of a bank 
 director for inducing the bank to extend 
 credit to an individual beyond the statutory 
 limit was denied, though he made false rep- 
 resentations as to notes offered for discount, 
 on proof that he acted at the time as agent 
 for the borrower, and not as a director. 
 
 Directors of a national bank, who merely 
 negligently participated in or assented to 
 false representations as to the bank's condi- 
 tion contained in its official report to the 
 comptroller of the currency, under R. S. § 
 
 5211, cannot be held civily liable to one de- 
 ceived by such report, since the exclusive 
 test of such liability is under R. S. § 5239, 
 which makes a knowing violation of the 
 national bank act a prerequisite to such lia- 
 bility ; Yates v. Bank, 206 U. S. 158, 27 Sup. 
 Ct. 638, 51 L. Ed. 1002, where it was held 
 that this excludes common-law liability, and 
 that a scienter must be proved in order to 
 sustain an action; id.; to the same effect, 
 State v. Allison, 155 Mo. 332, 56 S. W. 467; 
 Cowley v. Smyth, 46 N. J. L. 380, 50 Am. 
 Rep. 432. It has been held that a director 
 is an insurer of the truth of his report; 
 Gerner v. Mosher, 58 Neb. 135, 78 N. W. 384, 
 46 L. R. A. 244. In Houston v. Thornton, 
 122 N. C. 365, 29 S. E. 827, 65 Am. St. Rep. 
 699, bank directors were held liable to one 
 who purchased bank stock relying upon a 
 published statement of the condition of the 
 bank which was false. 
 
 The publication of an advertisement in a 
 newspaper by savings bank directors that 
 directors and stockholders are personally 
 responsible for its debts does not constitute 
 a contract with the depositors, but, if inten- 
 tionally false, affords the basis of an action 
 for deceit; Westervelt v. Demarest, 46 N. 
 J. L. 37, 50 Am. Rep. 400. 
 
 Directors of a corporation, who falsely 
 represent its condition to a stockholder, 
 knowing that he seeks information to guide 
 his decision as to selling his stock, are lia- 
 ble for the damages sustained by him on ac- 
 count of their misrepresentations, although 
 they were not made for the purpose of induc- 
 ing a sale; Rothmiller v. Stein, 143 N. Y. 
 581, 38 N. E. 718, 26 L. R. A. 148. An ac- 
 tion for deceit will lie against a director of 
 a corporation, banking or otherwise (there 
 is no difference),, who has made false and 
 fraudulent representations as to its condi- 
 tion, whereby others have been misled and 
 damaged. Such representations need not be 
 personally made, but may consist of volun- 
 tary reports or prospectuses which are false 
 and are fraudulently published; Jones v. Wil- 
 liams, 139 Mo. 1, 39 S. W. 486, 40 S. W. 353, 
 37 L. R. A. 682, 61 Am. St. Rep. 436. Mora- 
 wetz, Priv. Corp. (2d ed.) § 573. 
 
 Where a bank certified under oath to the 
 insurance commissioner that an insurance 
 company seeking a license had a certain de- 
 posit, which was false, it was held that one 
 who bought shares in such company in 
 reliance upon such certificate, could not re- 
 cover against the bank; Hindman v. Bank, 
 112 Fed. 931, 50 C. C. A. 623, 57 L. R. A. 
 108 ; nor will an action for deceit lie upon a 
 statement made for the mere purpose of ob- 
 taining a charter; Webb v. Rockefeller, 195 
 Mo. 57, 93 S. W. 778, 6 L. R. A. (N. S.) 872. 
 
 Mere matters of opinion as to the prospect 
 of future profits cannot be misrepresenta- 
 tions ;' Robertson v. Parks, 76 Md. 118, 24 
 Atl. 411; and where an officer of a corpora- 
 tion purchases stock from another officer by
 
 DIRECTORS 
 
 875 
 
 Dili EC TORS 
 
 inducing the latter to believe the value of 
 the shares would decrease, he cannot be held 
 liable for deceit when the stock in fact was 
 resold at a profit; Boulden v. Stihvell, 100 
 Md. 543, 60 Atl. COO, 1 L. R. A. (N. S.) 258. 
 Where an officer of a corporation procured 
 a transfer of stock to himself by statin-' 
 that it was worthless, when it was in fad 
 valuable, it was held not a breach of any 
 fiduciary relation and not a ground for avoid- 
 ing a sale; KrumUiaar v. Griffiths, 151 Pa. 
 223, 25 Atl. G4, di oying the existence of any 
 confidential or fiduciary relation between an 
 officer of a corporation and a person from 
 whom such officer purchases stock. Caveat 
 vendor is as sound a rule of law 
 emptor, though less frequently invoked ; Boul- 
 den v. Stihvell. 100 Mil. 543, 60 AH. 609, 1 L. 
 R. A. (N.S.) 258; and where a director bough 1 
 stock from a stockholder without disclo Lng 
 facts known to him as director which, if 
 known, would enhance its market value, it 
 was held that the sale would not be set aside: 
 O'Neile v. Ternes, 32 Wash. 52S, 73 Pac. 692; 
 see supra. 
 
 A director may purchase unmatured ob- 
 ligations of the corporation at a discount, 
 and enforce them at par, if the corporation 
 has not a sinking fund for the same pur 
 pose; Glenwood Mfg. Co. v. Syme, 100 Wis. 
 355, 85 N. W. 432 : St. Louis, Ft. S. & W. R. 
 Co. v. Chenault, 36 Kan. 51, 12 Pac. 303; 
 Marshall v. Carson, 38 N. J. Eq. 250. 4S Am. 
 Rep. 319. When he forecloses a mortgage 
 on corporate property, he has a right to pur- 
 chase; Lucas v. Friant. Ill Mich. 426, •',<.» X. 
 W. 735; and it is held he may buy corporate 
 property at an execution sale on a judgment 
 held by him; Marr v. Marr, 72 N. J. Eq. 707, 
 66 Atl. 1S2; but see Sebring v. Association, 
 2 Pa. Dist. Rep. 629, where it is held the 
 director of a corporation cannot buy cor- 
 porate property at a judicial sale. He may 
 bid on the foreclosure sale of corporate prop- 
 erty; McKittrick v. Ry. Co., 152 U. S. 473, 
 14 Sup. Ct. 661, 38 L. Ed. 518. 
 
 The president and general manairer of a 
 corporation were held personally liable for 
 damages caused to a riparian proprietor 
 from the long continued discharge of muddy 
 water into a stream from ore washers op- 
 erated by the company with their sanction. 
 they having had knowledge of the damage 
 caused thereby; Nunnelly v. Iron Co., 94 
 Tenn. 397, 29 S. W. 361, 28 L. R. A. 421. 
 The president of a corporation, who was also 
 a director, was held personally liable for the 
 wrongful use by his company of a toll bridge, 
 which diverted business from another bridge; 
 Chenango Bridge Co. v. Paige, 83 N. Y. ITS. 
 3S Am. Rep. 407. The president of an irri- 
 gation company was held liable for damage 
 to land caused by ditches, which be, as presi- 
 dent, had ordered to be dug across another's 
 land; Bates v. Van Pelt. D Tex. Civ. App. 
 1S5, 20 S. W. 940. In some cases an action 
 has been sustained against officers of a 
 
 company, together with the con oration itself, 
 
 for infringement of a. pa 
 
 Car-Bn Oc v. Ml 514 ; 
 
 and an injunele 
 
 patent; Goodyet :". 91, 
 
 Fed. Cas. No. 5,581; Wire 
 
 Co. v. Barbi d w Ire Co., 80 
 
 hoone Barnet Manufg Co. v. Han 
 
 Fed. 582, but the later cast - hold 
 
 otherwise. 
 
 in the absence of a pr 
 
 tor or of a special contract, a dir< 
 cut it led to atlon : Ogden v. M 
 
 39 X. V. 202; Gridley v. Ry. Co., 71 II 
 Citizens' Xat. Rank v. Elliott, 55 la. 104, 7 
 X. W. 470, .".o Am. Bep. I'm: and I 
 recover therefor even wl 
 
 OSate him has been passed after the 
 rendered ; Acconmux 
 Loan & Saving Fund Ass'n v 
 Pa. 534 ; Kiipatrick v. Bridge Co., 49 Pa. 118 
 88 Am. Dec. (07 ; Manx Ferry <; 
 Co. v. Branegan, 40 Ind. 361; New York & 
 X. II. R. Co. v. Ketchum, 27 Conn. 170; un- 
 less tiie services were outside of the line of 
 his duty as an officer, as obtaining a right 
 of way, soliciting subscriptions, etc.; Lafay- 
 ette, B. & M. Ry. Co. v. i -7 111. 1 17; 
 at v. Granite Co., :; N. V. 
 Supp. SS6; Ten Eyck v. I:. Cot, 7! Mich. 226, 
 41 X. W. 905, ••: L. R. A. 378, l<: Am. St. Rep. 
 633. But it has been held that, when no 
 salary is prescribed, one appointed 
 executive office, like that of cashier, is en- 
 titled to reasonable compensation for his 
 services, and that 1 « have power 
 to fix the salary after the expiration of the 
 term of office, and this, though such ap- 
 pointee is also a director, and Continues t" be 
 such while holding the independent office; 
 20 Fed. 1S3, note. 
 
 There is no implied promise to pay 
 an officer either for regular or extra Bel 
 to subject the corporation to liability, it must 
 he shown that the services were rendered 
 under such circumstances as to raise a fair 
 presumption that the parties intended and 
 understood they were to be paid for: Pew 
 v. Bank. 130 Mass. 391, followed in Fitz- 
 gerald & M. Const. Co. v. Fitzgerald, 137 O. 
 s. 98, 11 Sup. Ct :'.<•>. ."-! F. Ed. 608. 
 See Pierce, Railr. 31, with i 
 To constitute a legal board of din 
 they must meet at a time when and a place 
 where every other director has the opportu- 
 nity of attending; and there must be a quo- 
 rum: Percy v. Millaudon. ,'! La. 574. 
 President, etc., of Northampton Bank v. 
 
 Pe] i. 11 Mass. 288; Eughes v. Bank, 5 
 
 Litt. (Kv.i 45; Ridgway v. Bank, V2 S. & R. 
 (Pa.) 256, 1 1 Am. Dec 681 : Minor v. Bank, l 
 Pet. (U. S.) 40, 7 L. Fd. 47. The fact that 
 notice of a special meeting of the board was 
 not given as provided by the by-laws of a 
 corporation is immaterial, if all the members 
 of the board were in fact present and par- 
 ticipated in the proceedings; Minneapolis
 
 DIRECTORS 
 
 870 
 
 DISAFFIRMANCE 
 
 Times Co. v. Nimocks, 53 Minn. 381, 55 N. 
 W. 546. See Taylor County Court v. R. Co., 
 35 Fed. 161. 
 
 They cannot separately make a contract 
 which will bind the corporation ; Limer v. 
 Traders Co., 44 W. Va. 175, 28 S. E. 730; 
 Peirce v. Building Co., 94 Me. 406, 47 Atl. 
 914. 
 
 Action of directors in the corporate name, 
 in bad faith, and detrimental to its inter- 
 est, is, with respect to them, the act of the 
 corporation in name only; Pennsylvania Su- 
 gar Refining Co. v. Refining Co., 166 Fed. 
 254, 92 C. C. A. 318. 
 
 The directors of a company which declares 
 dividends, thereby impairing its capital, are 
 liable therefor to the company, though ig- 
 norant of its condition as to which they are 
 bound to inform themselves ; Cornell v. Sed- 
 dinger, 237 Pa. 389, 85 Atl. 446. 
 
 A director is entitled to access to all the 
 corporate books; Lawton v. Bedell (N. J.) 
 71 Atl. 490. 
 
 Where directors are required to be stock- 
 holders, "qualification" shares may be trans- 
 ferred for that purpose; this suffices if the 
 director holds them during his term, but not 
 if he returns them to the owner with a pow- 
 er of attorney for transfer ; In re Ringler & 
 Co., 204 N. Y. 30, 97 N. E. 593, Ann. Cas. 
 1913C, 1036. 
 
 DIRECTORY STATUTE. See Statute. 
 
 DIRIMANT IMPEDIMENTS. Those bars 
 which annul a consummated marriage. 
 
 DISABILITY. The want of legal capacity. 
 "Incapacity to do a legal act." It would 
 include the resignation of a judge before 
 signing a bill of exceptions; Mclntyre v. 
 Modern Woodmen of America, 200 Fed. 1, 
 121 C. C. A. 1. See Abatement; Devise; 
 Deed; Infancy; Insanity; Limitation ; 
 Mabkiage; Parties. 
 
 DISABLING STATUTES (also called the 
 Restraining Statutes). The acts of 1 Eliz. 
 c. 19, 13 Eliz. c. 10, 14 Eliz. cc. 11, 14, 18 
 Eliz. c. 11, and 43 Eliz. c. 29, by which the 
 power of ecclesiastical or eleemosynary cor- 
 porations to lease their lands was restricted. 
 2 Bla. Com. 319, 321 ; Co. Litt. 44 a; 2 Steph. 
 Com. 735. 
 
 DISAFFIRMANCE. The act by which a 
 person who has entered into a voidable con- 
 tract, as, for example, an infant, disagrees 
 to such contract and declares he will. not 
 abide by it. 
 
 Disaffirmance is expressed or implied: — 
 the former, when the declaration that the 
 party will not abide by the contract is made 
 in terms; the latter, when he does an act 
 which plainly manifests his determination 
 not to abide by it: as, where an infant made 
 a deed for his land, and on coming of age 
 he made a deed for the same land to an- 
 other; 2 D. & B. 320; Tucker v. Moreland, 
 10 Pet. (U. S.) 58, 9 L. Ed. 345; Inhabitants 
 
 of Worcester v. Eaton, 13 Mass. 371, 375, 
 7 Am. Dec. 155. 
 
 DISAFFOREST. To restore to their for- 
 mer condition lands which have been turned 
 into forests. To remove from the operation 
 of the forest laws. 2 Bla. Com. 416. 
 
 DISAVOW. To deny the authority by 
 which an agent pretends to have acted, as 
 when he has exceeded the bounds of his au- 
 thority. 
 
 It is the duty of the principal to fulfil the 
 contracts which have been entered into by 
 his authorized agent; and when an agent 
 has exceeded his authority he ought prompt- 
 ly to disavow such act, so that the other 
 party may have his remedy against the 
 agent. See Agent; Principal. 
 
 DISBAR. In England, to expel a barrister 
 from the bar. Wharton. This is in England 
 a colloquial term. The particular Inn of 
 Court, in a case requiring its action, "va- 
 cates the call" to their own Inn. The judges 
 give and take away the "right of audience." 
 See Council of the Bar, General ; and Bar- 
 rister, as to disbarring barristers ; Law So- 
 ciety, as to the practice of striking solic- 
 itors from the rolls in England. 
 
 In the United States, to deprive a person 
 of the right to practise as an attorney at 
 law. 
 
 Courts have jurisdiction and power upon 
 their own motion without formal complaint 
 or petition, in a proper case, to strike the 
 name of an attorney from the roll, provided 
 he has had reasonable notice and an oppor- 
 tunity to be heard; Ex parte Steinman, 95 
 Pa. 220, 40 Am. Rep. 637; In re Orton, 54 
 Wis. 379, 11 N. W. 584; In re Wall, 107 
 U. S. 265, 2 Sup. Ct. 569, 27 L. Ed. 552. 
 
 A lawyer may be disbarred only for mis- 
 demeanor in his professional capacity, or 
 affecting his professional character, but not 
 for a criminal offence without formal indict- 
 ment, trial and conviction. His office as at- 
 torney is property of which he cannot be 
 deprived except by judgment of his peers 
 and by the law of the land ; Ex parte Stein- 
 man, 95 Pa. 220, 40 Am. Rep. 637. But 
 while this is true as a general rule, it is 
 not an inflexible one, and there may be cas- 
 es where it is proper for the court to pro- 
 ceed without such previous conviction; In 
 re Wall, 107 U. S. 265, 2 Sup. Ct. 569, 27 
 L. Ed. 552. In this case the proof was 
 clear, there was a failure to offer any coun- 
 ter proof, and an evasive denial of the 
 charge which was that the attorney was en- 
 gaged in a tumultuous and riotous gathering 
 for the purpose of lynching. 
 
 Courts have no inherent power to disbar 
 an attorney for conviction of crime in a for- 
 eign jurisdiction, where the legislature has 
 expressly provided what convictions shall 
 result in disbarment and has not included 
 those in foreign jurisdictions; In re Ebbs.
 
 DISBAR 
 
 877 
 
 DISBAR 
 
 150 N. C. 44, G3 S. E. 190, 19 L. R. A. (N. 
 S.) 892, 17 Ann. Cas. 592. In the absence of 
 restrictive legislation, courts have an in- 
 herent power to strike from their rolls 
 names of attorneys who are found, by rea- 
 son of their conduct, unfit and unworthy; 
 State v. Kirke, 12 Fla. 278, 95 Am. Dec. :;i I. 
 A judgment of disbarment by a divided 
 court in another state, no order of disbar- 
 ment being made, pending on appeal to a 
 higher court, is Insufficient as a ground for 
 a revocation of an attorney's license; In re 
 Baum, 10 Mont. 223, 2r> Pac. 99. 
 
 An attorney may be disbarred for charg- 
 ing a judge with corrupt practices; Matter 
 of Murray, 58 linn 604, 11 X. Y. Supp. •:::•'•: 
 In re Robinson, 48 Wash. 153, !>2 Pac. 929, 
 15 L. R. A. (N. S.) 5125, 15 Ann. Cas. 415 
 (notwithstanding the withdrawal of the 
 charge and an apology, but in view of that 
 the attorney was merely suspended for six 
 months); discussing a courts decision in a 
 disrespectful way ; In re Breen, 30 Nov. 1G4, 
 ft:; Pac. 1004; State Board of Law Exam- 
 iners v. Hart, 104 Minn. 88, 116 N. W. 212, 
 17 L. R. A. (N. S.) 585, 15 Ann. Cas. 197; 
 embodying in his brief in the appellate court 
 "contemptuous, unbearable and unwarrant- 
 ed language" designed to intinonce a deci- 
 sion of the court by base appeals to the 
 supposed timidity of the justices; In re Phil- 
 brook, 105 Gal. 471, 3S Pac. 511, 8S4, 45 Am. 
 St. Rep. 59 (where the attorney was sus- 
 pended for three years) ; libelous charges 
 against a judge; U. S. v. Green, 85 Fed. S57 ; 
 unwarrantably charging a judge and another 
 attorney with bribery and unprofessional 
 conduct; People v. Green, 9 Colo. 506, 13 
 Pac. 514; In re Maines, 121 Mich. 003, SO 
 N. W. 714; or on conviction and fine in the 
 United States court for unlawful use of 
 the mails; People v. Weeber, 26 Colo. 1229, 
 57 Pac. 1079; or on conviction of felony or 
 misdemeanor involving moral turpitude; In 
 re Kirby, 10 S. D. 414, T.'> N. W. 90S ; or for 
 fighting a duel and killing his antagonist, 
 and being indicted for murder in another 
 state; Smith v. State, 1 Yerg. (Tenn.) 228; 
 or for procuring admission or license to 
 practice law fraudulently; People v. Gil- 
 more, 214 111. 509. 73 X. E. 737, <;:) I- R. A. 
 701; People v. Campbell, 2G Cat 481, 58 
 -'.11 : state Board of Law Examiners v. 
 Williams, no Tenn. 51, '.'2 s. \v. 521; Cor 
 gross disrespect to the court ; Sharon v. 
 Hill, 24 Fed. 720; or for any breach of fidel- 
 ity to the court; In re Eldridge, S2 X. Y. 
 161, 37 Am. Rep. 558; StTOUt v. Proctor, 71 
 Me. 288; perjury or subornation of perjury; 
 10 M. & W. 28; violation of the confidence 
 of a client; Strout v. Proctor, 71 Me. 288. 
 So also for an advertisement as a divorce 
 Lawyer, signed or unsigned; People v. Good- 
 rich, 79 111. 148; Smith v. Teoplo, 32 Colo. 
 251, 75 Pac. 914; People v. Smith, 200 111. 
 •i \2, tii; x. E. 27, 9:; Am. St. Rep. 2od: em- 
 ploying runners to huut up cases and charg- 
 
 ing fictitiou il of M 
 
 186 i'a. 99, 41 Ail. maker 
 
 at races in England; 40 Am. I.. Rev. 101, 
 eited from 40 L. Jour. 856; appearing for 
 both parties in actions Involving the same 
 issue, using Legal pi *cesa in an abusive anil 
 oppressive manner, and aiding and con 
 lug bribery of a city officer; In re O'ConnelL 
 171 Mass. 253, 53 N. E. L001, 54 X. E 
 receiving money from a woman 
 pardon for Per husband under pron 
 return half of it if lie did n< 
 after failure appropriating it to his own 
 use; In re O'Sullivan, 122 App. Div. 
 107 X. V. Supp- 462; bringing a dJ 
 without authority and actiug in fraudulent 
 collusion with the husband to procure 
 divorce without knowledge of the wife; Jul 
 ion v. State, o Tex 55. For any unpi 
 sional conduct disbarment or suspension may 
 be Inflicted; In re smith. 7.". Kan. 7i 
 Pac. 584; State Board of Examiners in Law 
 v. Reynolds, OS Minn. -11. 107 X. W. Ill: 
 State v. Ilarber, 129 Mo. 271, 31 S. V, 
 
 The complaint must affect the official char- 
 acter of the attorney; Wooldridge 
 6S 111. 157; Ex parte Steinman, ;»•"» Pa. 220, 
 40 Am. Rep. G.".7. The offence need not be 
 an Indictable one; but its character musl 
 be such as to show the attorney unlit to be 
 trusted with the powers of the pr 
 30 L. J. (Q. B.) 32; Baker v. Com., 10 I 
 (Ky.) 592; U. S. v. Porter, 2 Cra. C. C 
 Fed. Cas. No. 10.072; In re Austin, 5 Rawle 
 (Pa.) 191, 28 Am. Dec 657. But Ignorance 
 of the law is not a cause for disbarment; 
 Bryant's Case. 24 X. II. 119. 
 
 On being convicted of felony an attorney 
 loses his right to practise in court without 
 an order removing him; In re Xiles. 5 Daly 
 (N. Y.) 465. Neither pardon for felony nor 
 a satisfactory settlement with the injured 
 party affects the court's power to disbar; 
 Sanborn v. Kimball, 64 Me. 110; In n 
 vies, 93 Pa. 110. 39 Am. Rep. 729; Weeks. 
 Attys. § 83. 
 
 Disbarment is not by way of punishment 
 but in the exercise by the court of its dis- 
 cretion to determine whether one admitted 
 as an attorney is a proper person to be 
 continued on the roll; In re Adriaans, 17 
 App. I>. 0. 89; In re Palmer. 15 Ohio Cir. 
 Ct. 94; or for the protection of the court. 
 the proper administration of justice, the pub- 
 lic good and the protection of clients; El 
 parte Finn, .".2 or. 519, 52 Pac. 7."--;. >;7 Am. 
 St. Rep. 550; it leaves to the attorney his 
 full rights of citizenship; In re Thatcher, 
 do St. 2 0'., 93 X. E. SOS, Ann. Cas. 
 1912A, 810. 
 
 The enumeration in a statute of causes of 
 disbarment or suspension does not limit the 
 common-law power of the court in that re- 
 spect and the penalty may be inflicted for 
 other than statutory grounds; In re Smith. 
 7.". Kan. 743, 85 I'ac. 584; Bar Ass'n of Bos- 
 ton v. Greenhood, 10S Mass. 169, 46 N. E.
 
 DISBAR 
 
 878 
 
 DISCHARGE 
 
 568; State v. Gebliardt, 87 Mo. App. 542; 
 contra, In re Collins, 147 Cal. 8, SI Pac. 
 220. The power to disbar is not arbitrary 
 and despotic, to be exercised at the pleasure 
 of the court or from passion, prejudice, or 
 personal hostility, but in a sound judicial 
 discretion; State v. Stiles, 48 W. Va. 425, 37 
 S. E. 620. The manner of proceeding is said 
 to be largely in the discretion of the court, 
 so long as it is exercised without oppres- 
 sion and injustice, and to be used reasonably 
 with moderation and caution; it is judicial 
 in its character, but the inquiry is not the 
 trial of an action or suit, but an investiga- 
 tion by the court into the conduct of one of 
 its own officers in the exercise of the discip- 
 linary jurisdiction which it has over them ; 
 In re Durant, 80 Conn. 140, 67 Atl. 497, 10 
 Ann, Cas. 539. 
 
 A proceeding for disbarment of an attor- 
 ney is civil in its character and not crim- 
 inal; Keithley v. Stevens, 238 111. 199, 87 
 N. E. 375, 128 Am. St. Rep. 120; State v. 
 Fourchy, 106 La. 743, 31 South. 325; In re 
 Burnette, 73 Kan. 609, 85 Pac. 575; In re 
 Crum, 7 N. D. 316, 75 N. W. 257 ; In re Ebbs, 
 150 N. C. 44, 63 S. E. 190, 19 L. R. A. (N. 
 S.) 892, 17 Ann. Cas. 592; Garfield v. U. S., 
 32 App. D. C. 109; In re Biggers, 24 Okl. 
 842, 104 Pac. 1083, 25 L. R. A. (N. S.) 622; 
 In re Spencer, 137 App. Div. 330, 122 N. Y. 
 Supp. 190; Wernimont v. State, 101 Ark. 
 210, 142 S. W. 194, Ann. Cas. 1913D, 1156; 
 but in one case it was said that such a pro- 
 ceeding, while not strictly criminal, is quasi 
 criminal ; State v. Quarles, 158 Ala. 54, 4S 
 South. 499. 
 
 Proceedings at common law for disbar- 
 ment or suspension should be in the name 
 of the state, but under a statute directing 
 suspension for not paying over money col- 
 lected, no method of proceeding being pre- 
 scribed, the client for whom the money was 
 collected is the proper party ; Wilson v. Pop- 
 ham, 91 Ky. 327, 15 S. W. 859. 
 
 A disbarred attorney's election as attor- 
 ney-general is void ; Danforth v. Egan, 23 
 S. D. 43, 119 N. W. 1021, 139 Am. St. Rep. 
 1030, 20 Ann. Cas. 418. 
 
 See Attorney. 
 
 DISBURSEMENT. Money paid out by an 
 executor, guardian, or trustee, on account 
 of the fund in his hands. The necessary 
 expenditures incurred in an action, and 
 which, under the codes of procedure of 
 some of the states, are included in the costs, 
 are also so called. But see Wright's Adm'rs 
 v. Wilkerson, 41 Ala. 267; Case v. Price, 9 
 Abb. Pr. (N. Y.) 111. 
 
 DISCEPTATIO CAUS/E (Lat). In Ro- 
 man Law. The argument of a cause by the 
 counsel on both sides. Calvinus, Lex. 
 
 •DISCHARGE. The act by which a person 
 in confinement under some legal process, or 
 held on an accusation of some crime or mis- 
 
 demeanor, is set at liberty; the writing con- 
 taining the order for his being so set at lib- 
 erty is also called a discharge. 
 
 The discharge of a defendant, in prison 
 under a ca. sa., when made by the plaintiff, 
 has the operation of satisfying the debt, the 
 plaintiff having no other remedy; 4 Term 
 526. 
 
 But when the discharge is in consequence 
 of the insolvent laws, or the defendant dies 
 in prison, the debt is not satisfied. In the 
 first case the plaintiff has a remedy against 
 the property of the defendant acquired after 
 his discharge, and in the last case against 
 the executors or administrators of the debt- 
 or. Bacon, Abr. Execution, D; Bingham, 
 Execution 266. 
 
 The word has still other uses. Thus, we 
 speak of the discharge of a surety, whereby 
 he is released from his liability; of a debt; 
 of a contract; of lands,- or money in the 
 funds, from an incumbrance ; of an order 
 of a court of justice, when such order is 
 vacated ; 2 Steph. Com. 107, 161. We also 
 speak of a discharge in bankruptcy ; Boyn- 
 ton v. Ball, 121 U. S. 457, 7. Sup. Ct 981, 30 
 L. Ed. 9S5; Scott v. Ellery, 142 U. S. 381, 
 12 Sup. Ct. 233, 35 L. Ed. 1050; Fowle v. 
 Park, 48 Fed. 789. 
 
 DISCHARGE OF CONTRACT. A con- 
 tract may be discharged in the following 
 ways : Performance according to its terms ; 
 a breach of such a nature as to justify the 
 innocent party in treating the contract as 
 rescinded or as giving rise to a right of ac- 
 tion for breach of the entire contract ; rescis- 
 sion of a voidable contract, at the will of 
 one party, as for fraud, mistake, duress ; re- 
 lease ; rescission by parol agreement ; accord 
 and satisfaction ; cancellation and surrender ; 
 alteration (of a written contract) ; merger 
 (in judgment) ; arbicration and award ; im- 
 possibility ; bankruptcy ; statutes of limita- 
 tion, though the latter generally only bars 
 the remedy. A right of action on a contract 
 may be discharged in any of these ways ex- 
 cept where a breach justifies the innocent 
 party in treating the contract as rescinded, 
 or as giving rise to a right of action, or in 
 the case of impossibility. Williston's Wald's 
 Pollock on Contracts. An executed contract 
 cannot be discharged except by release un- 
 der seal or by performance, except that a 
 promissory note or a bill of exchange stands 
 on a different footing; 6 Exch. 851, per 
 Parke, B. ; but only, in the United States, 
 when the note or bill has been surrendered ; 
 Bragg v. Danielson, 141 Mass. 195, 4 N. E. 
 622 ; it is said here to have become extin- 
 guished ; Slade v. Mutrie, 156 Mass. 19, 30 
 N. E. 16S. 
 
 Discharge may be by payment under the 
 contract, or, after breach, by an agreement 
 which is effectual as an accord and satisfac- 
 tion {a. v.). Tender of performance, such as 
 by delivery of goods, discharges the party;
 
 DISCHARGE OF CONTRACT 
 
 879 
 
 discharge (>r contract 
 
 but tender of a sum of money due under the 
 contract does not work a discharge; the 
 party must stand ready and willing to pay 
 the debt, and, if sued, must pay the money 
 Into court, a substantial performance will 
 suffice; Crouch v. Gntmann, 134 N. V. 45, 
 31 N. E. 271, 30 Am. St. Rep. 608, but if the 
 deviation Is net Blight, or is willful, it is 
 otherwise; Elliott v. Caldwell, 43 Minn. 357, 
 45 N. W. 845, 9 L. R. A. 52; and one to 
 whom a sum of money is tendered must not 
 be called upon to make change; Anson, 
 Contr. :;io. 
 
 Discharge may be by breach, though a 
 breach, while it always gives a right of ac- 
 tion, does net always discharge the contract 
 for it may be broken in whole or in part. 
 and if the latter, the breach may net lie 
 important enough to work a discharge, or 
 the other party may net regard it as a 
 breach but may continue to carry out the 
 contract. See Breach. 
 
 Where a contract between A and X is dis- 
 charged by default of X, A may (1) consider 
 himself exonerated from any further per- 
 formance and successfully defend an actios 
 brought for non-performance; (2) sue at 
 once upon the contract for such damages as 
 he has sustained by the breach without be- 
 ing obliged to show that such performance 
 has been done or tendered by him; (3) if 
 he has done all or a portion of that which 
 he promised, so as to have a claim to a 
 money payment for such performance, he 
 may treat such a claim as due upon a new 
 contract arising upon the promise which is 
 understood from the acceptance of an exe- 
 cuted consideration ; Anson. Contr. 352. 
 Prof. Huffcut in his edition of Anson's Contr. 
 points out that the first two propositions 
 are illustrated in Davison v. Von Lingen, 
 113 U. S. 40, 5 Sup. Ct. 346, 28 L. Ed. 885; 
 and that the second is discussed in Lake 
 Shore & M. S. Ry. Co. v. Richards, 152 HI. 
 59. 38 N. E. 773. 30 L. R. A. 33 ; also that 
 A may elect and keep the contract for both 
 parties, thus giving X a period for repent- 
 ance; Kadish v. Young, 10S 111. 1 T' >. 43 Am. 
 Rep. 548; but he cannot thereby increase 
 the damages; Dillon v. Anderson, 43 N. Y. 
 231. 
 
 A party may break a contract by renounc- 
 ing his liabilities under it. or by making it 
 Impossible that he should fulfil] them, or by 
 falling totally or partially to perform what 
 he has promised. As to anticipatory breach- 
 es, see Breach. 
 
 Where one party has, before performance 
 is due, created an Impossibility of p< rform- 
 ance, this is equivalent to a renunciation 
 of the contract: Anson, Contr. :',."(;; U. S. 
 v. Peck, 102 U. S. 64, 26 L. Ed. 46. So 
 where, during performance, cue party has 
 made it impossible for the other to perform; 
 Western Union Telegraph Co. v. Semmes, 7:: 
 Md. 9, 20 Atl. 127; Woodberry v. Warner. 
 
 53 Ark. 488, 14 S. W. 07; Bing. 14; [' 
 2 Q. B. 70. 
 
 As to breaches of contracts containing 
 conditional and Independent s, see 
 
 Breach. 
 
 A contract may contain the if Its 
 
 own discharge, which may i ^-ful- 
 
 filment of a condition precedent, by the oc- 
 currence of a condition at, or by 
 the exercise of an option to determine the 
 contra* ■•of the partii 
 its terms: Anson, Contr. 338. Of the 
 
 in L. R. 7 Exch. 7, is in point, where 
 a horse was warranted to have been b 
 with the Bicester hounds and if it did not 
 r to it- description, the buyer might 
 return it. It did not answer to 11 
 tion and had aevei been so hunted. Held. 
 that the buyer might return it, tbongb in- 
 jured without his fault; the sale vested the 
 y in the buyer subject to a right of 
 don in a particular event; the de- 
 preciation in value must fall upon the per- 
 son in whom the property revested. In BUCh 
 case the buyer may refuse to receive the 
 article if he discovers that the term is not 
 fulfilled; Ganson v. Madlgan, 13 Wis 
 or on discovery he may return it; but not, 
 it was held, if injured while in his p 
 sion; Ray v. Thompson, 12 Cush. iMass.i 
 281, 59 Am. Dec. 1S7. Instances of condi- 
 tions subsequent are bonds defeasible upon 
 a condition expressed therein and the "ex- 
 cepted risks'* of charter parties. 
 
 If a statute requires the contract to be in 
 writing, there is authority for saying that a 
 discharge may be by word of mouth ; 5 B. & A. 
 66; Anson, Contr. 343; Wulschner v. Ward. 
 115 Ind. 219, 17 X. E. 273. "But if the dis- 
 charge be not a simple rescission, but such 
 an Implied discharge as arises from the 
 making of a new agreement inconsistent 
 with the old one, then there must be writ- 
 ing in accordance with the reduirements of 
 the statute:" Anson, Contr. 343; Hill v. 
 Blake, '.i7 N. Y. 216; Burns v. Real Estate 
 Co., 52 -Minn. 31, 53 X. W. L017; contra, 
 Steams v. Hall, 9 Cush. (Mass.) 31. 
 
 See Estoppi u 
 
 DISCHARGE OF A JURY. Bee JtJBY. 
 
 DISCLAIMER. A disavowal: a renuncia- 
 tion: as. for example, the act by which a 
 patentee renounces part of his title of Inven- 
 tion. 
 
 Of Estates. The act by which a party re- 
 fuses to accept ail estate which has been 
 conveyed to him. Thus, a trustee is said to 
 disclaim who releases to his fellow-trustees 
 his estate, and relieves himself of the trust: 
 1 Hill. R, P. 354; Watson v. v. 
 Conn. 83; Jackson v. Richards, 6 Cow. (N. 
 Y.i 617. 
 
 Of Tenancy. The act of a person in pos- 
 session, who denies holding the estate of the 
 D. who claims to be the owner. 2 Nev.
 
 DISCLAIMER 
 
 880 
 
 DI SCONTINU ANCE 
 
 & M. 672. An affirmation, by pleading or 
 otherwise, in a court of record, that the re- 
 version is in a stranger. It works a for- 
 feiture of the lease at common law; Co. 
 Litt. 251; 1 Cruise, Dig. 109; but not, it is 
 said, in the United States ; 1 Washb. R. P. 
 93. Equity will not aid a tenant in deny- 
 in his landlord's title; Peyton v. Stith, 5 
 Pet. (U. S.) 486, 8 L. Ed. 200. 
 
 In Patent Law. A declaration in writing, 
 filed under the patent laws, by an inventor 
 whose claim as filed covers more than that 
 of which he was the Original inventor, re- 
 nouncing such parts as he does not claim to 
 hold. See Patent. 
 
 In Pleading. A renunciation by the de- 
 fendant of all claim to the subject of the 
 demand made by the plaintiff. 
 
 In Equity. It must, in general be accom- 
 panied by an answer; Ellsworth v. Curtis, 10 
 Paige, Ch. (N. Y.) 105; 2 Russ.458; 2 Y. & C. 
 546; Worthington v. Lee, 2 Bland, Ch. (Md.) 
 678; and always when the defendant has 
 so connected himself with the matter that 
 justice cannot be done otherwise; 9 Sim. 
 102. It must renounce all claim in any ca- 
 pacity and to any extent; Bentley v. Cow- 
 man, 6 G. & J. (Md.) 152. It may be to part 
 of a bill only, but it must be clearly a sep- 
 arate and distinct part of the bill; Story, 
 Eq. PI. § S39. A disclaimer may, in general, 
 be abandoned, and a claim put in upon sub- 
 sequent discovery of a right; Cooper, Eq. 
 PI. 310. 
 
 At Law. In real actions, a disclaimer of 
 tenancy or estate is frequently added to the 
 plea of non-tenure; Littleton § 391; Porter 
 v. Rummery, 10 Mass. 64. The plea may be 
 either in abatement or in bar ; Prescott v. 
 Hutchinson, 13 Mass. 439 ; Olney v. Adams, 
 7 Pick. (Mass.) 31; as to the whole or any 
 part of the demanded premises; Stearns, 
 Real Act. 193. 
 
 At common law it is not pleaded as a bar 
 to the action, nor is it strictly a plea in 
 abatement, as it does not give the plaintiff 
 a better writ. It contains no prayer for 
 judgment, and is not concluded with a ver- 
 ification. It is in effect an offer by the 
 plaintiff to yield to the claim of the demand- 
 ant and admit his title to the land ; Stearns, 
 Real Act. 193. It cannot, in general, be 
 made by a person incapable of conveying 
 the land. It is equivalent to a judgment in 
 favor of the demandant, except when costs 
 are demanded ; Prescott v. Hutchinson, 13 
 Mass. 439; in which case there must be a 
 replication by the demandant; Favour v. 
 Sargent, 6 Pick. (Mass.) 5; no formal repli- 
 cation is requisite; Bratton v. Mitchell, 5 
 Watts (Pa.) 70. See 1 Washb. R. P. 93. 
 
 DISCONTINUANCE. In Pleading. The 
 
 chasm or interruption which occurs when 
 no answer is given to some material mat- 
 ter in the preceding pleading, and the op- 
 posite party neglects to take advantage of 
 
 such omission. See Com. Dig. Pleader, W.; 
 Bac. Abr. Pleas, P. It is distinguished from 
 insufficient pleading by the fact that the 
 pleading does not profess to answer all the 
 preceding pleading in a case of discontinu- 
 ance; 1 Wms. Saund. 28, n. It constitutes 
 error, but may be cured after verdict, by 
 32 Hen. VIII. c. 80, and after judgment by 
 nil dicit, confession, or non sum informatus 
 under 4 Anne, c. 16. See, generally, 1 Saund. 
 28; 4 Rep. 62 o; Taft v. Transp. Co., 56 N. 
 H. 414. 
 
 In Practice. The chasm or interruption in 
 proceedings occasioned by the failure of 
 the plaintiff to continue the suit regularly 
 from time to time, as he ought; 3 Bla. Com. 
 296; Germania Fire Ins. Co. v. Francis, 
 52 Miss. 467, 24 Am. Rep. 674; Taft v. 
 Transp. Co., 56 N. H. 416. The entry upon 
 record of a discontinuance has the same ef- 
 fect. The plaintiff cannot discontinue after 
 demurrer joined and entered, or after ver- 
 dict or writ of inquiry, without leave of 
 court; Cro. Jac. 35; 1 Lilly, Abr. 473; 8 
 C. C. App. 437 ; but see Lowman v. West, 7 
 Wash. 407, 35 Pac. 130; although he can 
 notwithstanding the interposition of a coun- 
 terclaim ; Felix v. Vanslooten, 17 N. Y. Sup. 
 844; and is generally liable for costs when 
 he discontinues, though not in all cases. 
 Leave to discontinue will be refused when 
 proofs had been taken and closed at large 
 expense to defendant, when no other ground 
 is shown except a desire to relitigate in a 
 new suit the questions involved ; American 
 Steel & Wire Co. v. Mayer & Englund Co., 
 121 Fed. 127. See Hart v. Storey, 1 Johns. 
 (N. Y.) 143; Ludlow v. Hackett, 18 Johns. 
 (N. Y.) 252; Lackey v. McDonald, 1 Cai. 
 (N. Y.) 116; Thurman v. James, 48 Mo. 235; 
 Etheridge v. Osborn, 12 Wend. (N. Y.) 402; 
 Com. Dig. Pleader (W 5); Bac. Abr. Plea 
 (5 P). 
 
 DISCONTINUANCE OF ESTATES. An 
 
 alienation made or suffered by the tenant 
 in tail, or other tenant seised in autre droit, 
 by which the issue in tail, or heir, or suc- 
 cessor, or those in reversion or remainder, 
 are driven to their action, and cannot enter. 
 
 The term discontinuance is used to distin- 
 guish those cases where the party whoso 
 freehold is ousted can restore it only by ac- 
 tion, from those in which he may restore it 
 by entry; Co. Litt. 325 a; 3 Bla. Com. 171; 
 Ad. Ej. 35; Bac. Abr.; Viner, Abr. 
 
 It was a survival of the old law which 
 rigidly protected seizure even against the 
 true owner. 2 Holdsw. Hist. E. L. 496. 
 
 Discontinuances of estates, prior to their 
 express abolition, had long become obsolete, 
 and they are now abolished by 3 & 4 Will. 
 IV. c. 27, and 8 & 9 Vict. c. 106; Moz. & 
 W. Die. ; 1 Steph. Com. 510, n. 
 
 DISCONTINUOUS SERVITUDE. Anease- 
 ment made up of repeated acts instead of
 
 DISCONTINUOUS SERVITUDE 
 
 881 
 
 DISC 
 
 one continuous act, such as right of way. 
 drawing water, etc. See Basemeht. 
 
 DISCOUNT. Interest reserved from the 
 amount loaned at the time of making a loan. 
 An allowance sometimes made for prompt 
 payment. As a verb, it is used to denote 
 the act of giving money for a bill of ex- 
 change or promissory note, deducting the in- 
 Dunkle v. Renick, 6 Ohio St. 527; 
 ra County Bank v. Baker, 15 <>hio St. 
 87; Philadelphia Loan Co. v. Towner, 13 
 Conn. 249; State v. Savings Institution, 4S 
 Mo. 189; Fleckner v. Bank, 8 Wheat. (1 , 
 s.i 338, 5 L. Ed. 631 ; Saltmarsh v. I 
 14 Ala. 677; Weckler v. Bank, 42 Md. 592, 
 20 Am. Rep. 05. 
 
 Discounting means to take interest In ad- 
 vance; McLean v. Bank, 3 McLean 597, Fed. 
 Cas. No. 8,888. It is a mode of Loaning mon- 
 ey; New York Firemen Ins. Co. v. Ely, 2 
 Cow. (N. Y.) G7S; Weckler v. Bank, 42 Md. 
 592, 20 Am. Rep. 05. As to whether dis- 
 counting includes buying and selling, t in- 
 cases are not uniform. It is bold to be an- 
 other name for buying at a discount : Tracy 
 v. Talmage, 18 Barb. (N. Y.) 456; Fleckner 
 v. Bank, S Wheat. (U. S.) 338, 5 L. Ed. 631 : 
 Pape v. Bank, 20 Kan. 450, 27 Am. Bep. 
 183; contra. First Nat. Bank of Rochester 
 v. Pierson, 24 Minn. 141, 31 Am. Rep. 341; 
 Niagara County Bank v. Baker, 15 Ohio 
 St. 87. See 16 L. R. A. 223, note. 
 
 In an ordinary commercial document, dis- 
 count means rebate of interest and not 
 "true" or mathematical discount; [1896] 2 
 Ch. 320. 
 
 A discount by a bank means ex vi termini 
 a deduction or drawback made upon its ad- 
 vances or loans of money upon negotiable 
 paper or other evidences of debt, payable 
 at a future day, which are transferred to 
 the bank. It is the difference between the 
 price and the amount of the debt, the evi- 
 dence of which is transferred; National 
 Bank v. Johnson. 101 V. S. 27*1 20 L. Ed. 
 742; Fleckner v. Bank, 8 Wheat. (U. S.) 338, 
 350, 5 L. Ed. 631. 
 
 The taking of legal interest in advance is 
 not usurious: but it is only allowed for the 
 benefit of trade and where the bill or note 
 discounted is meant for circulation and is 
 for a short term: New York Firemen Ins. 
 Co. v. Ely, 2 Cow. (N. Y.) 678; President, 
 etc., of Bank of I'tiea v. Wager, 2 Cow. 
 (N. Y.) 712: Bank of Utica v. Phillips, 8 
 Wend. (N. T.) 408. 
 
 There is a difference between buying a 
 bill and discounting it. The former word 
 is used when tbo seller does not Indorse the 
 bill and is not accountable for its payment; 
 MoElwee v. Collins. 20 X. C. 350; but the 
 discount of negotiable paper at more than 
 a lawful rate of interest Includes purchase 
 of such paper as well as loans; Pan forth v. 
 Bank. 4S Fed. 271, 1 C. C. A. 62, 17 L. R. 
 A. 622. 
 
 Bouv.— 56 
 
 The bona fide sale of a note, made in good 
 faith for full value in it 
 and not usurious, but if in its origin M 
 only a nominal negotiation, it is Lnvall 
 by a subsequent Nich- 
 
 7 Pet 'i 
 623; Junction B, Co. v. Bank, 12 
 58, 20 L. Ed. 3 
 The discount of a 
 
 maker imr pay. : ul v. 
 
 Willis. 20 Pa. - 
 
 ''ram v. Hendrl •'. 7 •'. Y 
 
 bo a bona fld< 
 ■ i covet usury and it may 1 
 dorsed by the transferor: French v. Grindle, 
 15 Me. 163; Roarl v. Turn 455; 
 
 National Bank of Michigan v. Gr< 
 140); but this rule only applies to bu 
 paper, since th< accommodation pa- 
 
 per at a discount of more than legal Inter- 
 est is usurious; Belden v. Lamb, 17 Conn. 
 441 ; in some cases it is held that if the ven- 
 dor indorses or guarantees or otherwb* 
 
 liable for the payment of the bill or 
 note, the transaction is usurious; Nati 
 Bank v. Johnson, 104 Q. S. 271, 26 I 
 742; Cowles v. M 3 V 725 
 
 however, it was also held that the ind 
 ment was valid to ! "d title to the 
 
 holder as against the maker though usurious 
 as against the indorser; the note, being val- 
 id in its Inception, was not vitiated by the 
 subsequent transaction except as against 
 
 er. The last ruling, however, was 
 said to be obiter dictum, but. the qu 
 arising for adjudication, the view wat 
 proved and the Ided : 
 
 rong v. Gibson, 31 Wis. 61, 11 
 Rep. I 
 
 The discounting of negotiable paper und< r 
 the national bank act is synonymous with 
 loans: National Bank v. Johnson, 104 D. S 
 •J71. 26 L. Ed. 712. citing Niagara Counts 
 Bank v. Baker. 15 Ohio St 68, to 
 feci thai to discount paper is "only a mod.' 
 of Loaning money with the riu'ht to take the 
 Interesl allowed by law In advance." 
 Nation w. Bab kb. 
 
 Where in an act of Incorporation the ex- 
 erdse of banking powers was prohibited, it 
 was held that therebj the discount!] 
 notes was forbidden; United German Bank 
 v. Katz, 57 Md. 128, 139; Sou,!.. 
 
 The true discount for a given sum. for a 
 given time, is such a sum as will in that 
 time amount to the Interest of the sum to 
 be discounted. Wharton. 
 
 In Practice. A set-Off or defalcation in an 
 action. Yinor, Abr. Discount. Bu1 
 Trabue's K\'r v. Harris. 1 Mote. iKy.i 597, 
 In common-law actions then- was a plea 
 
 of discount, but it is little used, in Dela- 
 ware, where the common-law pleading Is 
 closely adhered to and short picas are fre- 
 quently used, it was said that there was
 
 DISCOUNT 
 
 882 
 
 DISCOVERY 
 
 never any definite idea connected with the ; 
 plea of discount in the Delaware practice; 
 that they could not "give it the force or 
 meaning of a plea of set-off." Glazier v. 
 McCallister, 5 Harring. (Del.) 41. Hence 
 that plea is rather intended for use when 
 matter which constitutes a deduction or de- 
 falcation of or from the plaintiffs claim is 
 introduced to reduce it. 
 
 DISCOVERT. Not covert; unmarried. 
 The term Is applied to a woman unmarried, 
 or widow, — one not within the bonds of mat- 
 rimony. 
 
 DISCOVERY. The act of finding an un- 
 known country. 
 
 The nations of Europe adopted the principle that 
 the discovery of any part of America gave title to 
 the. government by whose subjects or by whose au- 
 thority it was made, as against all European gov- 
 ernments. This title was to be consummated by pos- 
 session ; Johnson v. Mcintosh, 8 Wheat. (U. S.) 
 543, 5 L. Ed. 681; Martin v. Waddell, 16 Pet. (U. 
 S.) 367, 10 L. Ed. 997; 2 Washb. R. P. 518. 
 
 By the law of nations, dominion of new 
 territory may be acquired by discovery and 
 occupation as well as by cession or conquest ; 
 Jones v. U. S:, 137 U. S. 202, 11 Sup. Ct. 80, 
 34 L. Ed. 691. 
 
 An invention or improvement. See Pat- 
 ent. Also used of the disclosure by a bank- 
 rupt of his property for the benefit of cred- 
 itors. 
 
 In Practice. The disclosure of facts rest- 
 ing in the knowledge of the defendant, or 
 the production of deeds, writings, or things 
 in his possession or power, in order to main- 
 tain the right or title of the party asking it, 
 in some other suit or proceeding. 
 
 It was originally an equitable form of procedure, 
 and a bill cf discovery, strictly so called, was 
 brought to assist parties to suits in other courts. 
 Every bill in equity is in some sense a bill of dis- 
 covery, since it seeks a disclosure from the defend- 
 ant, on his oath of the truth of the circumstances 
 constituting the plaintiff's case as propounded in his 
 bill ; Story, Eq. Jur. § 1483 ; but the term is tech- 
 nically applied as defined above. See De Wolf v. 
 De Wolf, 4 R. I. 450. Many important questions have 
 arisen out of the exercise of this power by equity ; 
 but these are of comparatively little practical im- 
 portance in England and many of the states, where 
 parties may be. made witnesses and compelled to 
 produce books and papers in courts of law. 
 
 Such bills are greatly favored in equity, 
 and are sustained in all cases where some 
 well-founded objection does not exist against 
 the exercise of the jurisdiction; Story, Eq. 
 Jur.§ 1488; Skinner v. Judson, 8 Conn. 528, 
 21 Am. Dec. 691 ; Wolf v. Wolf's Ex'r, 2 H. & 
 G. (Md.) 382, 18 Am. Dec. 313. Some of the 
 more important of the objections are, — first, 
 that the subject is not cognizable in any 
 municipal court of justice ; Story, Eq. Jur. § 
 1489 ; second, that the court will not lend its 
 aid to obtain a discovery for the particular 
 court for which it is wanted, where the 
 court can itself compel a discovery ; 2 Ves. 
 451; Fitzhugh v. Everingham, 2 Edw. Oh. 
 (N. Y.) 605; Wheeler v. Wadleigh, 37 N. H. 
 55; third, that the plaintiff is not entitled 
 
 by reason of personal disability; fourth, that 
 the plaintiff has no title to the character in 
 which he sues ; Lansing v. Pine, 4 Paige, 
 Ch. (N. Y.) 639; fifth, that the value of the. 
 suit is beneath the dignity of the court, 
 sixth, that the plaintiff has no interest in the 
 subject-matter or title to the discovery re- 
 quired; 2 Bro. C. C. 321; Coombs v. War- 
 ren, 17 Me. 404; Marion Nat. Bank v. 
 Abell's Adm'x, 88 Ky. 428, 11 S. W. 300, 10 
 Ky. L. Rep. 980 ; or that an action for which 
 it is wanted will not lie; 3 Bro. C. C. 155; 
 1 Bligh, N. S. 120; 3 Y. & C. 255; seventh, 
 that the defendant is not answerable to the 
 plaintiff, but that some other person has a 
 right to call for the discovery ; eighth, that 
 the policy of the law exempts the defendant 
 from the discovery, as on account of the 
 peculiar relations of the parties ; 2 Y. & C. 
 107; City Bank v. Bangs, 3 Paige, Ch. (N. 
 Y.) 36; in case of arbitrators; 2 Vern. 380; 
 3 Atk. 529 ; ninth, that the defendant is not 
 bound to discover his own title ; Bisph. Eq. 
 561; 1 Vern. 105; Mange v. Guenat, 6 
 Whart. (Pa.) 141; see Downie v. Nettleton, 
 61 Conn. 593, 24 Atl. 977; or that he is a 
 bona fide purchaser without notice of the 
 plaintiff's claim ; 8 Sim. 153 ; McNeil v. Hill, 
 5 Mas. 269, Fed. Cas. No. 8,915; Wood v. 
 Mann, 1 Sumn. 506, Fed. Cas. No. 17,951; 
 Vattier v. Hinde, 7 Pet (U. S.) 252, 8 L. Ed. 
 675; Varick v. Briggs, 6 Paige, Ch. (N. Y.) 
 323; and see Hart v. Bank, 33 Vt. 252; 
 Howell v. Ashmore, 9 N. J. Eq. 82, 57 Am. 
 Dec. 371 ; tenth, that the discovery is not 
 material in the suit ; 2 Ves. 491 ; Gelston v. 
 Hoyt, 1 Johns. Ch. (N. Y.) 548; eleventh, 
 that the defendant is a mere witness ; 2 Bro. 
 C. C. 332; Geer v. Kissom, 3 Edw. Ch. (N. 
 Y.) 129 ; but see 2 Ves. 451 ; 1 Sch. & L. 227 ; 
 
 11 Sim. 305 ; Vermilyea v. Bank, 1 Paige, Ch. 
 (N. Y.) 37; twelfth, that the discovery call- 
 ed for would criminate the defendant; 
 Noyes v. Thorpe, 73 N. H. 481, 62 Atl. 787, | 
 
 12 L. R. A. (N. S.) 636, where a demurrer to 
 a bill in aid of an action for libel was sus- 
 tained upon that ground, the discovery sought 
 being the name of the author of the article 
 complained of. In L. R. 24 Q. B. D. 445, 
 note, the English court of appeal refused to 
 compel the same discovery on the ground 
 that it was a "fishing" interrogatory. 
 
 The suit must be of a purely civil nature, 
 and may not be a criminal prosecution ; Lofft 
 1 ; 19 How. St. Tr. 1154 ; Broadbent v. State, 
 7 Md. 416; a penal action; 1 Keen 329; At- 
 will v. Ferrett, 2 Blatchf. 39, Fed. Cas. No. 
 640; a suit partaking of this character; U. 
 S. v. Bank, 1 Pet. (U. S.) 100, 7 L. Ed. 69; 
 Northrop v. Hatch, 6 Conn. 361; Higdon v. 
 Heard, 14 Ga. 255 ; or a case involving moral 
 turpitude. See 1 Bligh, N. S. 96; 2 E. L. & 
 Eq. 117; 5 Madd. 229; 11 Beav. 3S0 ; 1 Sim. 
 404 ; Pleasants v. Glasscock, 1 S. & M. Ch. 
 (Miss.) 17. In a civil action for conspiracy 
 a discovery of material documents cannot 
 be refused merely because they tend to crim-
 
 DISCOVERY 
 
 
 DIS 
 
 iuate one or to Involve him in a criminal | 
 charge; [1906] A. C. 434; and In a suit 
 
 against an th Ubel 
 
 and conspiracy the diBCOvery cannot be avoid- 
 ed on the ground cither of privilege or self- 
 crlmination : [1899] 2 lr. Rep. Q. B. I 
 
 Workmen pledged I . and employed 
 
 In a factory in which the bus! induct- 
 
 ed in private, to Becur< ae to tiie 
 
 method of manufacture, will not be com- 
 pelled, iu a suit against their emplo: 
 disclose such secrets; Dobson v. Graham, 4P 
 Fed. IT. 
 
 A corporation not a party to a Buit will not 
 be compelled to open Its records which it is 
 claimed will disclose something of impor- 
 tance to the litigation; Henry v. his. C 
 Fed. 15; nor is an adv. ilnafion ol 
 
 a defendant before trial allowable Cor the 
 purpose of discovering a cause of action; 
 Britton v. MacDonald, 3 Misc. 514, 23 N. Y. 
 Supp. 350; Nathan v. Whiiehill, G7 Hun 398, 
 22 N. Y. Supp. 63. 
 
 An infant party to an action cannot be 
 compelled to make discovery of documents ; 
 [1892] 2 Q. B. ITS. 
 
 The court has power to allow a party to 
 an action to take photographs of documents 
 in the possession of the other party; [1893] 
 2 Q. B. 191. 
 
 It seems to be settled that a bill will lie 
 against a corporation and its officers to com- 
 pel a discovery from the officers, to aid a 
 plaintiff or a defendant in maintaining or 
 defending a suit brought against or by the 
 corporation alone ; McComb v. R. Co., T Fed, 
 426, 19 Blatchf. 69 ; 1 Ch. D. Tl ; Post v. R. 
 Co., 144 Mass. 347, 11 N. E. 540, 59 Am. Rep. 
 86. Since it answers under its seal and 
 not upon oath, there can he no discovery 
 by a corporation unless its officers or agents 
 who know the facts are made parties; Man- 
 chester Fire Assur. Co. v. Agricultural Works, 
 38 Fed. 378; Vaughn v. R. Co., 1 Flip. 621, 
 Fed. Cas. No. 16,898 ; but an officer of a cor- 
 poration cannot be joined as defendant in a 
 bill of discovery where he did not derive 
 the desired information in his official capac- 
 ity; McComb v. B, Co., T Fed. 426. 
 
 In the sense in which the word is used 
 with respect to equity suits generally, there 
 was, until a comparatively recenl period, a 
 failure to recognize the distinction between 
 the two functions of an answer in chancery. 
 viz.: discovery and defence. These two were 
 in the civil law entirely separated, while 
 in chancery they were indiscriminately com- 
 mingled. The distinction is very clearly put 
 in Langdell's Equity Pleadings, 2d ed. | 68, 
 where the author attributes to Wigram (Disc., 
 2d ed. § IT) and Hare (Disc. 223) the simul- 
 taneous notice Of what he terms "the un- 
 natural union." The distinction is impor- 
 tant because, when it is borne in mind, the 
 "rule for determining what discovery the 
 defendant must give in his answer becomes 
 simple and uniform. He must answer cate- 
 
 gorically . lion and 
 
 charge in the hill, u 
 jection which would 
 of a witness." In 
 
 tion, T: 
 
 in winch a del ad : ' 
 
 not a : . ag ' 
 
 .dust who 
 relief prayed ; one j 
 conflicting claim 
 
 which must 
 
 the bill relating wholly to otl 
 With reaped to particular i ■• rule 
 
 must be deduced from the i 
 nearly applicable, and the i il be 
 
 found to he collected and examined with dis- 
 crimination in the work cited. See also Ad. 
 Eq. b. 1. ch. 1. ' 
 
 A hill in equity which waives an oath to 
 the answer is demurrable; Starkweather v. 
 Williams, 21 R. I. '<:<. 41 At!. 1003; and the 
 complainant cannot have discovery upon 
 such a hill; Tillinghast v. Chace, 121 
 435 (where th' collected and those 
 
 (■(intra criticised); Huntington v. Saunders. 
 120 U. S. 7S, 7 Sup. Ct i 
 Ward v. Peck, 114 Mass. 1U1 ; Torrent v. 
 rs, 39 Mich. 85; Stettauer v. Dwight, 
 
 54 111. App. 194; otherwise if the bill prays 
 both discovery and relief; Manh-y v. Mickle, 
 
 55 N. J. Eq. 563, .".7 Atl. T.;s. Where the 
 oath is waived in a hill of disc 
 
 dant may decline to answer, but if he 
 undertakes to answer, he must state wheth- 
 er he- had kno or information, hut 
 not his belief; Yictur G. Bloede Go. \ I 
 ter, 148 Fed. 127. A 1 ill of discovery will 
 not lie against a mere witness; Post v. 
 Boardman. 10 Paige Ch. (N. I.) 
 general rule; Howell v. A 9 X. .1. Eq. 
 82, 57 Am. Dec. .".71. Nor is there equitable 
 jurisdiction in a suit where disi 
 relief are Bought, but the only ground for 
 equitable relief is discovery of evidence to 
 be used in enforcing a purely legal demand; 
 Safford v. Mfg. Co.. 120 Fed. C. a. 
 630. A simple hill of discovery will now 
 hardly he resorted to in the 1 nited v 
 courts because unnecessary when 
 utes available in ts furnish the 
 remedies f rmerly soughl only . 
 In re Boyd. 10". O. s. 6 
 
 v. Neely, 1 10 r. s. 109, 11 Sup. Ct 712. 
 35 I.. Ed. 358 : or the r< lief souf at i^ avail- 
 able under I'. S. R. S. ? 72!. providing for 
 production of 1 .. in suits at law. 
 
 Statutory pr< • nlarglng the juris- 
 
 diction of courts of law. such as to provide 
 for discovery at law. have hecn held to be 
 merely cumulative and not to abridge the 
 jurisdiction of equity to compel a discovery 
 (unless otherwise specifically provided by 
 statute), even though, by enlarge ment of their 
 jurisdiction, the courts of law could afford
 
 DISCOVERY 
 
 884 
 
 DISCREDIT 
 
 similar relief; Kelley v. Boettcher, 85 Fed. 
 53, 29 C. C. A. 14 ; Kurtz v. Brown, 152 Fed. 
 372, 81 C. C. A. 498, 11 Ann. Cas. 576 ; 3 K. 
 & J. 433; Union Passenger Ry. Co. v. Mayor, 
 etc., 71 Md. 238, 17 Atl. 933; Reynolds v. 
 Fibre Co., 71 N. H. 332, 51 Atl. 1075, 57 L. 
 R. A. 949, 93 Am. St. Rep. 535; Miller v. 
 Casualty Co., 61 N. J. Eq. 110, 47 Atl. 509; 
 Clark v. Locomotive Works, 24 R. I. 307, 53 
 Atl. 47; Nixon v. Lumber Co., 150 Ala. 602, 
 43 South. S05, 9 L. R. A. (N. S.) 1255. But 
 in otber jurisdictions (where possibly the 
 distinctive systems of law and equity are 
 less closely adhered to) it is held otherwise ; 
 Turnbull v. Crick, 63 Minn. 91, 65 N. W. 135 ; 
 Baylis v. Mfg. Co., 59 App. Div. 576, 69 N. 
 Y. Supp. 693; Bond v. Worley, 26 Mo. 253; 
 Warren v. Baker, 43 Me. 570; Chapman v. 
 Lee, 45 Ohio St. 356, 13 N. E. 736; Riopelle 
 v. Doellner, 26 Mich. 102 ; Cleveland v. Burn- 
 bam, 60 Wis. 16, 17 N. W. 126, 18 N. W. 
 190; Hall v. Joiner, 1 S. C. 1S6 (where the 
 decision is put upon the ground that, in 
 that state, the jurisdiction of equity for 
 want of an adequate remedy at law, rests 
 on a statute) ; though probably, where sepa- 
 rate courts of law and equity are maintained, 
 it is generally beld that the equitable reme- 
 dy is not abridged ; 1 Pom. Eq. Jur. § 193. 
 
 Courts of equity which have once obtained 
 jurisdiction for purposes of discovery will 
 dispose of a cause finally, if proper for the 
 consideration of equity, though the remedy 
 at law is fully adequate ; 1 Story, Eq. Jur. 
 64 k; Chichester's Ex'r v. Vass' Adm'r, 1 
 Munf. (Va.) 98, 4 Am. Dec. 531; Traip v. 
 Gould, 15 Me. 82; Wood v. Hudson, 96 Ala. 
 469, 11 South, 530. 
 
 D ! SC R E D I T. To deprive one of credit or 
 confidence. 
 
 In general, a party may discredit a wit- 
 ness called by the opposite party, who testi- 
 fies against him, by proving that his char- 
 acter is such as not to entitle him to credit 
 or confidence, or any other fact which shows 
 he is not entitled to belief. It is clearly 
 settled, also, that the party voluntarily call- 
 ing a witness cannot afterwards impeach his 
 character for truth and veracity ; 3 B. & 
 C. 7-16; Chism v. State, 70 Miss. 742, 12 
 South. 852; Erwin v. State, 32 Tex. Cr. R. 
 519, 24 S. W. 904. If a party call a witness 
 who turns out unfavorable, he may call an- 
 other to prove the same point ; 2 Campb. 
 556 : 4 B. & A. 193 ; Meyer Bros. Drug Co. v. 
 McMahan, 50 Mo. App. 18. The rule that a 
 party cannot discredit his own witness is 
 not violated by proving facts contrary to 
 the testimony of such witness ; Chester v. 
 Wilhelm, 111 N. C. 314, 16 S. E. 229. 
 
 Where the evidence of a witness is a sur- 
 prise to the party calling him, the trial judge, 
 in the exercise of discretion, may permit 
 him to be cross-examined by such party to 
 show that his previous statements and con- 
 duct were at variance with his testimony ; 
 Selover v. Bryant, 54 Minn. 434, 56 N. W. 58, 
 
 21 L. R. A. 418, 40 Am. St. Rep. 3. Proof 
 cf contradictory statements by one's own 
 witness, voluntarily called and not a party, 
 is in general not admissible, although the 
 party calling him may have been surprised 
 by them ; but he may show that the facts 
 were not as stated, although these may tend 
 incidentally to discredit the witness ; Hick- 
 ory v. U. S., 151 U. S. 303, 14 Sup. Ct. 334, 
 38 L. Ed. 170. 
 
 DISCREPANCY. A difference between 
 one thing and another, between one writing 
 and another ; a variance. 
 
 A material discrepancy exists when there 
 is such a difference between a thing alleged 
 and a thing offered in evidence as to show 
 they are not substantially the same: as, 
 when the plaintiff in his declaration for a 
 malicious arrest averred that "the plaintiff, 
 in that action, did not prosecute his said 
 suit, but therein made default," and the rec- 
 ord was that he obtained a rule to discon- 
 tinue. 
 
 An immaterial discrepancy is one which 
 does not materially affect the cause: as, 
 where a declaration stated that a deed bore 
 date in a certain year of our Lord, and the 
 deed was simply dated "March 30, 1701." 2 
 Salk. 65S ; Henry v. Brown, 19 Johns. (N. Y.) 
 49; Wade v. Grimes, 7 How. (Miss.) 428; 
 Drake v. Fisher, 2 McLean, 69, Fed. Cas. No. 
 4,061 ; 2 B. & Aid. 301. 
 
 DISCRETION. That part of the judicial 
 function which decides questions arising in 
 the trial of a cause, according to the particu- 
 lar circumstances of each case, and as to 
 which the judgment of the court is uncon- 
 trolled by fixed rules of law. 
 
 The power exercised by courts to deter- 
 mine questions to which no strict rule of 
 law is applicable but which, from their na- 
 ture, and the circumstances of the case, are 
 controlled by the personal judgment of the 
 court. 
 
 "Discretion when applied to a court of 
 justice means sound discretion guided by 
 law." 4 Burr. 529. Judicial discretion is a 
 mere legal discretion — a discretion in dis- 
 cerning the course presented by law ; and 
 what that has discerned it is the duty of , 
 the court to follow. Osborn v. Bank, 9 
 Wheat. 738, 6 L. Ed. 204. "The discretion 
 is not wilful or arbitrary, but legal [to set 
 aside a judicial sale], and though its exer- 
 cise be not purely a matter of law, yet it in- 
 volves a matter of law or legal inference." 
 Lovinier v. Pearce, 70 N. C. 167. "A legal 
 discretion is one that is regulated by well 
 known and established principles of law." 
 Detroit Tug & Wrecking Co. v. Circuit Judge, 
 75 Mich. 360, 42 N. W. 968. 
 
 Bishop on Mar. & Div. § 830, defines it as 
 "denoting a sort of individual liberty, a sort 
 of liberty in the collective judges and an 
 adherence to legal principles blended in such 
 a way as shall constitute an establishes
 
 DISCRETION 
 
 885 
 
 DISCRETION 
 
 course of justice bending to the circumstanc- 
 es of the case instead of requiring the 
 to bend to it." 
 
 "But if the word discretion in this con- 
 nection [injunction] is used in its secondary 
 sense, and by it is meant that the chancel- 
 lor has the liberty and power oi" acting, in 
 finally settling property rights, at bis dis- 
 cretion, without the restraint of the legal 
 and equitable rules governing those rights, 
 then I deny such power;" Hennessy v. Car- 
 mony, 50 N. .7. Eq. 616, 25 All. 374, 
 
 It would tend to clearness and exactness 
 if discretion were used only with refi 
 to those matters where the action of the 
 trial judge is final; Jenkins v. Brown, 21 
 Wend. (N. Y.) 454. 
 
 Whether or not a particular question is 
 one of discretion is in almost every case a 
 matter of settled law, and the individual 
 court or judge lias no power to place it with- 
 in or without that category. It is only when 
 a question arises which, according to prece- 
 dent, is treated as such that the judicial 
 discretion is invoked and its exercise cannot 
 be reviewed. 
 
 The discretion of a judge is said by Lord 
 Camden to be the law of tyrants: it is al- 
 ways unknown, it is different in different 
 men; it is casual, and depends upon con- 
 stitution, temper, and passion. In the best, 
 it is oftentimes caprice; in the worst, it is 
 every vice, folly, and passion to which hu- 
 man nature is liable. Optima lex qua: mini- 
 mum relinquit arbitrio judicis: optimus ju- 
 dex qui minimum .s)bi. Bacon, Aph. ; 2 Bell, 
 Suppl. to Yes. 891; Toullier, liv. 3, n. 338; 1 
 Lilly, Abr. 447. But the prevailing opinion 
 is that discretion must not be arbitrary, 
 fanciful, and capricious; it must be legal 
 and regular, governed by rule, not by humor; 
 4 Burr. 25 ; Judges of Oneida Common Pleas 
 v. People, 18 Wend. (N. Y.) 99. 
 
 Many matters relating to the trial such as 
 the order of giving evidence, etc., are proper- 
 ly left mainly or entirely to the discretion 
 of the judge; Utsey v. R. Co., 3S S. C. 399; 
 17 s. E. 141; Winklemeir v. Dalber, 92 
 Mich. 621, 512 x. w. 1036; Coffin v. Hydraulic 
 Co., 136 N. Y. 655, 32 X. B. 1076; Northern 
 Tac. R. Co. v. Charless, 51 Fed. 562, 2 C. C. A. 
 3S0 ; Estis v. Jackson, 111 N. C. 145, 10 S. E. 
 7, 32 Am. St. Rep. 784. 
 
 Decisions upon matters within the absolute 
 discretion of a court are not reviewable in 
 courts of appeal ; Harrington v. By. Co., 157 
 Mass. 579, 32 x. e. 955; Perry v. Shedd, 159 
 Mass. 200, 34 X. E. 174; Pittsburgh, U. & St 
 L. R. Co. v. Heck. 102 U. S. 120, 26 L. Ed. 
 58; but the discretion in granting or refus- 
 ing a writ of mandamus must be exercised 
 under legal rules, and is reviewable in an 
 appellate court; People v. Common Council 
 of Syracuse, 78 N. Y. 56. Such a writ will 
 not be granted to regulate the exercise of 
 
 discretion on the part of an official ; State 
 
 v. Van L5 I'la. :;17; Ex parte Harris. 
 
 52 Ala. 87, 23 Am. Rep. 559. 
 
 A testator may leave it to hla executor to 
 construe the pi of bis will, and to 
 
 decide doubtful questions concerning bis 
 intentions; American Board of i 
 Foreign Mission i v. Fi n : ; and 
 
 the donor of a power may : 
 tion to the discretion ol ; i I ». .r. 
 
 & S. 614. 
 
 In Criminal Law. The ability to know and 
 distinguish beti I and evil, — \,< ■ 
 
 what is lawful and wbat is unlawful. 
 
 In most modern criminal statutes the 
 
 amount of punishment is usually left to the 
 
 ion of the court. See Indeterminate 
 
 ICES. 
 
 Ae to the age at which children arc said to 
 arrive at discretion, see Age; Doij Qapax. 
 
 DISCRETIONARY TRUSTS. Those which 
 cannot be duly administered without the ap- 
 plication of a certah if prudence and 
 judgment: as, when a fund is given to trus- 
 tees to be distributed in certain charil 
 be selected by the trust « 
 
 DISCRIMINATION. This word Ifl 
 generally applied in law to a breach of the 
 statutory or common-law duty of a carrier 
 to treat all customers alike. It Is applied to 
 inequality in both rates of fare and rates of 
 freight, and may also be practised by In- 
 equality in the facilities afforded to differ- 
 ent consignors. See ETacili i i : 
 COMMERCE Commission; Kails; Rebate; 
 Railroads. 
 
 As to discrimination in the distribution of 
 cars to shippers, see Railroads. 
 
 DISCUSSION. In Civil Law. A proceed- 
 ing on the part of a surety by which the 
 property of the principal debtor is made lia- 
 ble before resort can be had to the sun 
 this is called the benefit of discussion. This 
 is the law in Louisiana. See Lomat, 3, 4, 
 1-4; Burge, Suretyship 329, 343, 348 ! 
 lier 511 ; 7 id. 93. 
 
 DISENTAILING ASSURANCE. A deed 
 
 executed under stat. .'! & -1 Will. 4. C. 7 1. 
 whereby the tenant in tail is enabled to alien- 
 ate the land for an estate In fee-slmj 
 any less elate, and thus destroy the entail. 
 The i\rc^\ must be duly enrolled in the 
 of chancery within six months of its execu- 
 tion ; 1 Steph. Com. 250, 
 
 DISFRANCHISEMENT. The act of de- 
 priving a men. her of a corporation of his 
 right as such, by expulsion. 
 
 from amotion {g. v.). which is ap- 
 plicable to the removal of an officer from 
 office, leaving him bis rights as a me 
 Willc. Corp. n. 7os ; Ajag. & a. Corp. u::7; 
 10 II. L. Caa 104; State v. Adams, 4 1 Mo. 
 570; While v. r.rownell. 2 Daly (N. Y.i 329. 
 
 The power of disfranchisement extends only 
 to societies not owning property or organiz-
 
 DISFRANCHISEMENT 
 
 886 
 
 DISHONOR 
 
 ed for gain; unless the power be given by 
 the charter ; Evans v. Philadelphia Club, 50 
 Pa. 107; Green's Briee, Ultra Vires 45; 41 
 L. T. N. S. 490 ; People v. Board of Trade of 
 Chicago, SO 111. 134; People v. New York Cot- 
 ton Exchange, 8 Hun (N. Y.) 210 ; Ang. & A. 
 Corp- § 410. It extends to the expulsion of 
 members who have proved guilty of the 
 more heinous crimes, as to which there must 
 first be a conviction by a jury ; Com. v. Ben- 
 evolent Society, 2 Binn. (Pa.) 448, 4 Am. Dec. 
 4; Society for Visitation of Sick v. Com., 
 52 Pa. 125, 91 Am. Dec. 139. It is said that 
 the power exists where members do not ob- 
 serve certain duties to the corporation, es- 
 pecially where the breach tends directly or 
 indirectly to the forfeiture of the corporate 
 rights, and franchises, and the destruction 
 of the corporation ; Green's Brice, Ultra Vi- 
 res 45 ; People v. Board of Trade of Chicago, 
 45 111. 112 ; Hussey v. Gallagher, 61 Ga. 86 ; 
 Sale v. Baptist Church, 62 la. 26, 17 N. W. 
 143, 49 Am. Rep. 136. A member is entitled 
 to notice of the charges against him, and to 
 an opportunity to be heard ; Evans v. Phila- 
 delphia Club, 50 Pa. 107; People v. Sailors' 
 Snug Harbor, 54 Barb. (N. Y.) 532; State 
 v. Board of Management, 40 N. J. L. 295; 
 People v. Benevolent Society, 24 How. Pr. 
 (N. Y.) 216; State v. Adams, 44 Mo. 570; 
 Gregg v. Medical Society, 111 Mass. 185, 15 
 Am. Rep. 24. See Association; Expulsion. 
 Except in cases authorized by constitution- 
 al provisions, a citizen entitled to vote can- 
 not be disfranchised, or deprived of his right 
 by any action of the public authorities, and 
 a law having such effect is void; Cooley, 
 Const. Lim. 776; as an act creating a new 
 county and leaving part of its territory un- 
 organized so that the voters of that portion 
 could not participate in the election ; People 
 v. Maynard, 15 Mich. 471. A citizen who has 
 been convicted of bribery at an election and 
 has undergone the punishment is qualified to 
 vote, without a pardon; Osborne v. County 
 Court, 68 W. Va. 189, 69 S. E. 470, 32 L. R. 
 A. (N. S.) 41S. 
 
 The present use of the word in England is the de- 
 priving an individual of his right of voting, or a 
 constituency of their right of returning a member 
 to parliament. May's Pari. Pr. 
 
 DISGRACE. Ignominy; shame; dishonor. 
 No witness is required to disgrace himself. 
 13 How. St. Tr. 17, 334; 16 id. 161. See 
 Criminate. 
 
 DISGUISE. 
 
 A person lying in ambush is not in disguise within 
 the meaning of a statute declaring a county liable 
 in damages to the next of kin of any one murdered 
 by persons in disguise ; Dale County v. Gunter, 46 
 Ala. 118, 142. 
 
 DISHERISON. Disinheritance; depriving 
 one of an inheritance. Obsolete. See Dis- 
 inherison. 
 
 DISHERIT0R. One who disinherits, or 
 puts another out of his freehold. Obsolete. 
 
 DISHONOR. A term applied to the non- 
 fulfillment of commercial engagements. To 
 dishonor a bill of exchange, or a promissory 
 note, is to refuse or neglect to pay it at 
 maturity. 
 
 The holder is bound to give notice to the 
 parties to such instruments of its dishonor; 
 and his laches will discharge the indorsers ; 
 Chit. Bills 250, 394 ; 1 Pars. N. & B. 506, 520. 
 
 DISINHERISON. In Civil Law. The act 
 of depriving a forced heir of the inheritance 
 which the law gives him. 
 
 In Louisiana, forced heirs may be depriv- 
 ed of their legitime, or legal portion, and 
 of the seisin granted them by law, for just 
 cause. The disinherison must be made in 
 proper form, by name and expressly, and for 
 a just cause ; otherwise it is null. See Forc- 
 ed Heirs; Legitime. 
 
 DISINHERITANCE. The act by which a 
 person deprives his heir of an inheritance, 
 who, without such act, would inherit. 
 
 By the common law (since the statute of 
 wills) any one may give his estate to a 
 stranger, and thereby disinherit his heir ap- 
 parent. Cooper, Justin. 495 ; 7 East 106. 
 
 An heir cannot be disinherited by mere 
 words of exclusion, but the entire property 
 of the testator must be given to some one 
 else by express words or by necessary im- 
 plication ; Phillips v. Phillips, 93 Ky. 49S, 
 20 S. W. 541 ; Chamberlain v. Taylor, 105 N. 
 Y. 185, 11 N. E. 625; Gallagher v. Crooks, 
 132 N. Y. 338, 30 N. E, 746; Hancock's Ap- 
 peal, 112 Pa. 532, 5 Atl. 56; and where a 
 will provides that a gift therein is to be the 
 entire share of an heir, he is not excluded 
 from a share of property not disposed of by 
 the will ; Sutherland v. Sydnor, 84 Va. 880, 
 6 S. E. 480, even though the will shows that 
 the testator believed he was disposing of all 
 his property; id, A testamentary writing 
 which revokes all other wills, and excludes 
 a son from any share of the estate, for rea- 
 sons given, but does not dispose of the prop- 
 erty, does not affect the rights of such son; 
 Coffman v. Coffman, 85 Va. 459, 8 S. E. 672, 
 2 L. R. A. 848, 17 Am. St. Rep. 69. 
 
 In a case of doubt the law leans to a dis- 
 tribution of the estate of a deceased person 
 as nearly conforming to the rules of inheri- 
 tance as possible. 
 
 DISINTERESTED WITNESS. One who 
 has no interest in the cause or matter in is- 
 sue, and who is lawfully competent to tes- 
 tify. 
 
 DISINTERMENT. See Dead Body. 
 
 DISJUNCTIVE ALLEGATIONS. Allega- 
 tions which charge a party disjunctively, so 
 as to leave it uncertain what is relied on as 
 the accusation against him. 
 
 An indictment, information, or complaint 
 which charges the defendant with one or 
 other of two offences, in the disjunctive, as
 
 DISJUNCTIVE ALLEGATIONS 887 
 
 DISM1 
 
 that he murdered or caused to be murdered, 
 forged or caused to be forged, wrote and pub- 
 lished or caused to be written and published, 
 is bad for uncertainty; l Salk. .'Ml:, 371 ; 2 
 Stra. 900; 5 B. & C. 251 ; 1 C. & K. 243; l 
 Y. & J. 22. An indictment which averred 
 , that S. made a forcible entry Into two 
 of meadow or pasture was held to be bad; 2 
 Rolle, Abr. 81. A complaint which alleges an 
 unlawful sale of "spirituous or Intoxicating 
 liquor" Is bad for oncertainty; Com. r. Grey, 
 2 Gray (Mass.) 501, Gl Am. Doc. 170. So Ifl 
 an Information which alleges that N. sold 
 beer or ale without an excise lice] 
 Dowl. & K. 143. And the same rule applies 
 if the defendant is charged In two different 
 characters In the disjunctive: as, quod A ex- 
 istens xii ins sive deputatus, took, etc.; 2 
 Itolle, Abr. 263. 
 
 DISJ UNCTIVE TERM. One which is plac- 
 ed between two contraries, by the affirming 
 of one Of which the other is taken away: it 
 is usually expressed by the word or. See 3 
 Yes. 450; l P. Wms. 433; 2 Cox, <'h. 213; 
 2 Atk. 043; 2 Yes. Sen. 07; Cro. Eliz. o25 ; 
 1 Bingh. 500; Ayliffe, Pand. 5G. 
 
 In the civil law, when a legacy is given 
 to Cains or Titius, the word or is considered 
 and, and both Caius and Titius are entitled 
 to the legacy in equal parts. 6 Toullier, n. 
 704. See Copulative Term; Construction. 
 
 DISME. Dime, which see. 
 
 DISMISS. To remove. To send out of 
 court. Formerly used in chancery of the 
 removal of a cause out of court without any 
 farther hearing. The term is now used in 
 courts of law also. 
 
 It signifies a final ending of a suit, not a 
 final judgment on the controversy, but an 
 end of that proceeding; Taft v. Transp. Co., 
 56 N. II. 417; Conner v. Drake, 1 Ohio St. 
 170. It is well settled that the judgment of 
 a court dismissing a suit for want of juris- 
 diction does not conclude the plaintiffs right 
 of action; Smith v. McNeal, 109 U. S. 429, 3 
 Sup. Ct. 319, 27 L. Ed. 986. 
 
 After a decree, whether final or interloc- 
 utory, has been made by which the rights of 
 a party defendant have been adjudicated, or 
 such proceedings have been taken as entitle 
 the defendant to a decree, the complainant 
 will not be allowed to dismiss bis bill without 
 the consent of the defendant; Chicago & A. 
 R. R. Co. v. Mill Co., 109 U. S. 713, 3 Sup. 
 Ct. 594, 27 L. Ed. 10S1. 
 
 The effect of dismissals under the codes of some 
 of the United States, has been much discussed. 
 Thus in New York, "a final judgment di • 
 the complaint, either before or after a trial, 
 ed in an action b does not pre- 
 
 vent a new action for the same cause of action, un- 
 less it expressly declares that It is rendered upon 
 the merits. 
 
 DISMISSED. A judgment of "Dismissed," 
 without qualifying words Indicating a right 
 
 to take further proceedings, is presumed to 
 
 d on the merits; Durant v. 
 ,. 7 Wall. (U. IS L. Ed. 
 
 Rut a bill i motion of com- 
 
 plainant do.-s oot bat 
 Loung -lane. L60 Fed 2 
 
 A judgment of dl d it iff 
 
 fails of court i 
 
 come res Judicata; Ryan v. B. i 
 397 ; so of a d:-:. UP- 
 
 tics; BinCOD Water ft PO Water 
 
 Co., 118 Fed. 543. But circumstances ob- 
 .. might bad to a different rule. 
 
 DISORDERLY HOUSE. A hue the in- 
 mates of whi'h 1 el 
 
 a nuisance to the neighborhood. State v. 
 Minn. 343, 94 N. W. 1077; Haw- 
 kins v. Lutton, 95 Wis. 493, 70 N. W. 483, 
 Am. St. Rep. 131. It has a wide meaning, 
 and includes bawdy nouses, common gaming 
 •s, and places of a like character; 1 
 Blsh. Or. I.. g L106; D. S. v. day. 2 Cra. 
 c. C. 875, Fed. Caa No. 15,251; Com. v. 
 Cobb, 120 Mass. 356. Any place of public re- 
 
 I in which Illegal practices are can 
 on, Involving moral turpitude or not : S 
 v. .Martin, 77 X. J. L. 652, 73 At! 548, 24 L. 
 B. A. (X. Sd 507, 134 Am. St. Rep. 814, L8 
 Ann. ("as. 986, where a person making usuri- 
 ous loans was convicted of keeping a disor- 
 derly house. In order to constitute it SU< h it 
 is not necessary that there be acts violative 
 of the peace of the neighborhood, or b 
 ous disturbance and open acts of lewdness; 
 Beard v. state, 71 Md. 275, 17 At 1. 1044, 4 
 L. U. A. 675, 17 Am. St. Rep. 536; but a 
 single act of lewdness of a man and woman 
 in a house, does not const inn,- :.ce of 
 
 keeping a house uf prostitution; People v. 
 Gastro, 7.", Mich. 127, 42 X. w. 937. And 
 receiving unmarried people who present 
 themselves as husl and and wife at a hotel 
 is not sufficient to convi< t the proprietor of 
 keeping a disorderly bouse without pr< 
 scienter; People v. Drum, 127 App. Div. 241, 
 110 X. Y. Supp. tooa 
 
 The keeper of such bouse may be lnd 
 for keeping a public nuisance; Hardr. 344; 
 People v. ciark. l wheel, it. Cas. (N. 10 
 290; Com. v. Stewart, 1 S. ft B 
 Bacon, Abr. Nuisances, \: 4 Sharsw 
 Com. 167, 168, note; King v. People, ! 
 v. 587; Ex parte Blrchfield, -VJ Ala. .°.77. 
 The husband musl be joined with the wife in 
 an indictment to suppress a disorderly b 
 1 Show. 1 Id. 
 
 Is and Phrases, w>L 8, pp. 2108 • 
 2110. 
 
 DISORDERLY PERSONS. A class of of- 
 fenders described in the statutes which pun- 
 ish them. See i Bla. Com. 169. 
 
 DISPARAGEMENT. In Old English Law. 
 An injury by union or comparison with some 
 or thing of inferior rank or excellence. 
 Marriage without disparagement was mar- 
 to one of suitable rank and character.
 
 DISPARAGEMENT 
 
 888 
 
 DISSAISINA 
 
 2 Bla. Com. 70 ; Co. Litt. 82 o. The guard- 
 ian in chivalry had the right of disposing of 
 his infant ward in matrimony; and provid- 
 ed he tendered a marriage without dispar- 
 agement or inequality, if the infant refused, 
 he was obliged to pay a valor maritagii to the 
 guardian. 
 
 Disparagare, to connect in an unequal mar- 
 riage. Spelman, Gloss. Disparagatio, dis- 
 paragement. Used in Magna Carta (9 Hen. 
 III.), c. 6. Disparagation, disparagement. 
 Kelham. Disparage, to marry unequally. 
 Used of a marriage proposed by a guardian 
 between those of unequal rank and injurious 
 to the ward. 
 
 DISPAUPER. In English Law. To de- 
 prive a person of the privilege of suing in 
 forma pauperis. 
 
 When a person has been admitted to sue 
 in forma pauperis, and before the suit is end- 
 ed it appears that the party has become the 
 owner of a sufficient estate real, or personal, 
 or has been guilty of some wrong, he may be 
 dispaupered. 
 
 DISPENSARY LAW. See Liquok. 
 DISPENSATION. A relaxation of law for 
 the benefit or advantage of an individual. 
 In the United States, no power exists, ex- 
 cept in the legislature, to dispense with law : 
 and then it is not so much a dispensation as 
 a change of the law. 
 
 DISPLACE. Used in shipping articles, 
 and, when applied to an officer, meaning 
 properly to disrate, not to discharge. Pot- 
 ter v. Smith, 103 Mass. 68. 
 
 DISPOSE. To alienate or direct the own- 
 ership of property, as, disposition by will. 
 Elston v. Schilling, 42 N. Y. 79; see Fling 
 v. Goodall, 40 N. H. 219 ; Phelps v. Harris, 
 101 U. S. 3S0, 25 L. Ed. 855. Used also of 
 the determination of suits ; In re Russell, 13 
 Wall. (U. S.) 664, 20 L. Ed. 632. Called a 
 word of large extent; Freem. 177. 
 
 DISPOSSESSION. Ouster; a wrong that 
 carries with it the amotion of possession. 
 An act whereby the wrong-doer gets the ac- 
 tual occupation of the laud or hereditament. 
 It includes abatement, intrusion, disseisin, 
 discontinuance, deforcement. 3 Bla. Com. 
 167. 
 
 DISPUTATIO FORI (Lat). Argument in 
 court. Du Cange. 
 
 D ISPUTE. A fact is properly said to be in 
 dispute when it is alleged by one party and 
 denied by the other, and by both with some 
 show of reason. Appeal of Knight, 19 Pa. 
 494. 
 
 DISQUALIFY. To incapacitate, to disable, 
 to divest or deprive of qualifications. Mat- 
 ter of Maguire, 57 Cal. 606, 40 Am. Rep. 125. 
 
 DISRATI0NARE. To clear oneself from 
 accusation; to make good a legal claim; to 
 prove. Martin, Record Interpreter. 
 
 DISSAISINA. A disseisin or disposses- 
 sion ; an ejectment. Skene. 
 
 DISSECTION. The act of cutting into 
 pieces an animal or vegetable for the purpose 
 of ascertaining the structure and use of its 
 parts; anatomy; the act of separating into 
 constituent parts for the purpose of critical 
 examination. Webster. See Dead Body; 
 Autopsy; Death. 
 
 DISSEISEE. One who is wrongfully put 
 out of possession of his lands; one who is 
 
 disseised. 
 
 DISSEISIN. A privation of seisin. A 
 usurpation of the right of seisin and posses- 
 sion, and an exercise of such powers and 
 privileges of ownership as to keep out or dis- 
 place him to whom these rightfully belong. 
 2 Washb. R. P. 2S3 ; Mitch. R. P. 259. 
 
 It takes the seisin or estate from one man 
 and places it in another. It is an ouster of 
 the rightful owner from the seisin or estate 
 in the land, and the commencement of a new 
 estate in the wrong-doer. It may be by 
 abatement, intrusion, discontinuance, or de- 
 forcement, as well as by disseisin properly 
 so called. Every dispossession is not a dis- 
 seisin. A disseisin, properly so called, re- 
 quires an ouster of the freehold. A disseisin 
 at election is not a disseisin in fact ; 2 Pres. 
 Abstr. Titles 279; but by admission only of 
 the injured party, for the purpose of trying 
 his right in a real action ; Co. Litt. 277 ; Lit- 
 tle v. Libby, 2 Greenl. (Me.) 242, 11 Am. Dec. 
 68; Doe v. Thompson, 5 Cow. (N. Y.) 371; 
 Jackson v. Huntington, 5 Pet. (U. S.) 402, 8 
 L. Ed. 170 ; Poignard v. Smith, 6 Pick. (Mass.) 
 172. 
 
 Disseisin may be effected either in cor- 
 poreal inheritances, or incorporeal. Disseisin 
 of things corporeal, as of houses, lands, etc., 
 must be by entry and actual dispossession of 
 the freehold : as if a man enters, by force or 
 fraud, into the house of another, and turns, 
 or, at least, keeps, him or his servants out 
 of possession. Disseisin of incorporeal here- 
 ditaments cannot be an actual dispossession ; 
 for the subject itself is neither capable of 
 actual bodily possession or dispossession; 3 
 Bla. Com. 169, 170. See Poignard v. Smith, 6 
 Pick. (Mass.) 172 ; Smith v. Burtis, 6 Johns. 
 (N. Y.) 197, 5 Am. Dec. 218; Ellicott v. 
 Pearl, 10 Pet. (U. S.) 414, 9 L. Ed. 475 ; Stet- 
 son v. Veazie, 11 Me. 408. 
 
 In the early law every disseisin was a 
 breach of the peace ; if perpetrated with vio- 
 lence it was a serious breach. The disseisor 
 was amerced never less than the amount of 
 the damage; if it were by force of arms he 
 was sent to prison and fined. Besides he gave 
 the sheriff an ox,— "the disseisin ox,"— or 
 five shillings. If he disseised one who has 
 already recovered possession from him by the 
 
 assize, this was a still graver offence, for 
 
 which he was imprisoned by statute. The
 
 DISSEISIN 
 
 SS'J 
 
 DISSOU 1 1"N 
 
 offender was a redisseisor ; 2 Poll. & Maitl. 
 Hist, of Eng. Law 45. 
 
 See Buying Titles. 
 
 DISSEISITUS. One who has been dis- 
 seised. 
 
 DISSEISOR. One who puts another out of 
 the possession of his lands wrongfully. 
 
 DISSENT. A disagreement to something 
 which has been done. It is express or im- 
 plied. 
 
 The law presumes that every person to 
 whom a conveyance has been made has given 
 his assent to it, because it is supposed to be 
 for his benefit. To rebut the presumption, 
 his dissent must he expressed. See Brooks 
 v. Murbury, 11 Wheat. (U. S.) 78, 6 L. Ed. 
 Wilt v. Franklin, 1 Linn. (Pa.) 502, 2 
 Am. Dec. 471; Bowman v. Griffith, 35 Neb. 
 861, 53 X. W. 1 10; ('rain v. Wright, 114 X. Y. 
 307, 21 x. k. h'i. Assent. 
 
 In Ecclesiastical Law. A refusal to con- 
 form to the rites and ceremonies of the es- 
 tablished church. 2 Burn, Eccl. haw 165. 
 
 DISSENTER. One who refuses to con- 
 form to the rites and ceremonies of the es- 
 tablished church ; a non-conformist. 2 Burn, 
 Eccl. Law 165. 
 
 DISSENTIENTE (Lat dissenting). Used 
 with the name or names of one or more judg- 
 es, it indicates a dissenting opinion In a case. 
 Jfemine diMentiente. Xo one dissenting; 
 unanimous. 
 
 DISSENTING OPINIONS. See PRECE- 
 DENT. 
 
 DISSOLUTION. The dissolution of a con- 
 tract is the annulling its effects between the 
 contracting parties. 
 
 The dissolution of a partnership is the put- 
 ting an end to the partnership. Its dissolu- 
 tion does not affect contracts made between 
 the partnership and others; so that it is en- 
 titled to all its rights, and Liable on Its obliga- 
 tions, as if it had not been dissolved. See 
 Partnership. 
 
 Of Corporations. Dissolution of corpora- 
 tions takes place by act of legislature (but 
 in America only by consent of the corpora- 
 tion, or where the power to dissolve baa 1 een 
 reserved by the legislature) ; by the loss of 
 all the members, or an integral part of them ; 
 by a surrender of the charter; by t 
 piration of the period for which it wai 
 tered; by proceedings for the winding up of 
 the company under the law; or by a for- 
 feiture of the franchises, for abuse of its 
 powers. Where a method of procedure for 
 dissolution has been prescribed by statute, as 
 is now usual, such method is exclusive: Kohl 
 y. Lilienthal, 81 CaL 378, 20 Tac. 401, 22 Pac 
 6S0. 6 L. R. A. 520. 
 
 The loss of members will not work a dis- 
 solution, so long as enough members remain 
 to fill vacancies; State v. Trustees, 5 tnd. 
 77 ; McGinty v. Reservoir Co., 155 Mass. 183, 
 
 29 X. E. 510 ; nor does a failure to elect of- 
 ficers ; Com. v. Cullen, 13 Pa. 183, 53 Am. 
 Dec. 450; Evarts v. Mfg. Co., 20 C 
 United States electric Lighting Co. v. Leiter, 
 19 D. C. 575j Rose v. Turnpike Co., 3 Watts 
 (Pa.) 46 ; or trustees ; B] 
 U. S. 181, 26 Sup. r 
 of an e 
 
 University v. Indiana, 1 1 How. (1 
 14 L. Ed. n<; ; nor does I 
 all the officers of a corporation work 
 solution; Muscatine Turn Veiein v. 1 
 is la. IC'J; but it is said that a municipal or 
 charitable corporation may he dissolved by 
 the loss of all its members, although this 
 mode of dissolution cannot take p. 
 case of business corporations which have a 
 transferable joint stock, because the 
 porate shares, being personal property, mu-t 
 always belong to SOI b per- 
 
 son must of necessity be a member of the 
 corporation; 5 Thomp. Corp. g 6652; i 
 Glass Manufactory v. Longdon, -1 
 (Mass.) 49, '.'.'> Am. D& . 282. And even where 
 all the shares of stock pass into the bands of 
 less than the prescribed Dumber of stock- 
 holders, there is no dissolution, even though 
 they may have passed Into the hands of tuo 
 members; Bussed v. McLellan, 14 Pick. 
 (Mass. i 63; or <>f a single person; Newton 
 Mfg. Co. v. White, 42 Ga. I 18; and such per- 
 son could carry on the corporate business; id. 
 See Stock] 
 
 Ordinarily, a corporation may by a ma- 
 jority vote surrender its franchises; McCur- 
 dy v. Myers, 14 Pa. 535; Black v. Canal Co., 
 22 N. J. Eq. 404; Tread well v. Mfg. Co., 7 
 Gray (Mass.) 3! . Dec 48 
 
 Woolen Mills Co., 115 Tenn. 266, 89 s. W. 
 7-11. 2 L. R. A. (N. s.i t93, 112 Am. 81 
 825; Hitch v. Hawley, 132 N. Y. 221, 30 N. 
 E. 401; but such a surrender must be a 
 ed by the state; Wilson v. Proprietors of 
 Central Bridge, 9 R. I. 590; excepting where 
 ickholders are liable for the debts; La 
 Grange & M. It. Co. v. Rainey, 7 Cold. (Tenn.) 
 420t a cot] oration is not dissolved or its 
 franchises forfeited by its insolvency and as- 
 signment of Its assets for the of its 
 
 creditors, where the slate brings QO | I 
 IngS to have the charter forfeited, and there 
 is no surrender thereof by act Of the share- 
 holders; State v. Butler, 86 Tenn. 614, - 8. 
 ; Breene v. Bank, n « 17 Pac 
 
 280; Adams v. Milling Co., 
 a Don-user of corporate 
 of Itself work a dissolution, even though it 
 he for twenty years; La lit an Water i 
 Co. v. Veghte, 21 N. J. Eq. 463; I ■: 
 Strickland v. 1'riehard. 24, where 
 
 had 1 ecu do corporate acts pen 
 for 23 years and it was held there was a dis- 
 solution. The question is one of fact and 
 
 Thomp. C 
 that a corporation has ceased to do br. 
 and has made an assignment of all its prop-
 
 DISSOLUTION 
 
 890 
 
 DISSOLUTION 
 
 erty for the payment of its debts and for 
 several years held no annual meetings or 
 elected directors, does not work a dissolution 
 to the extent of preventing its maintaining 
 an action for a debt due it ; id. § GGGO. The 
 sale of the property and franchises of a cor- 
 poration in foreclosure proceedings does not, 
 ipso facto, work a dissolution. It will pass 
 the franchise of the company to operate or 
 enjoy the particular property foreclosed, but 
 not its primary franchise to be a corpora- 
 tion; 5 Thomp. Corp. § 6662 (but that the 
 corporation is extinguished by such a sale, 
 see 37 Mo. 131). The insolvency of a corpo- 
 ration or the appointment of a receiver there- 
 for does not work a dissolution; Boston 
 Glass Manufactory v. Langdon, 24 Pick. 
 (Mass.) 49, 35 Am. Dec. 292. 
 
 As to dissolution by consolidation, see 
 Merger. 
 
 The forfeiture of a charter by misuser or 
 nonuser is complete only upon a final adjudi- 
 cation thereof in a competent court, upon 
 proper proceedings at the suit of the govern- 
 ment which created the corporation, and in 
 the courts of such government ; Moraw. Priv. 
 Corp. 959, 1015 ; the existence of the charter 
 cannot be attacked collaterally, or by an in- 
 dividual ; Proprietors of Charles River Bridge 
 v. Proprietors of Warren Bridge, 7 Pick. 
 (Mass.) 344; Chesapeake & O. Canal Co. v. 
 R. Co., 4 G. & J. (Md.) 1. But when the leg- 
 islature has reserved the right to revoke a 
 charter for abuse of its privileges or failure 
 to perform a condition, it may enact the re- 
 peal at the proper time ; Crease v. Babcock, 
 23 Pick. (Mass.) 334, 34 Am. Dec. 61; Erie & 
 N. B. R. Co. v. Casey, 26 Pa. 287 ; and such 
 repealing act will be held constitutional un- 
 less the company can show by plain and sat- 
 isfactory evidence that the privileges grant- 
 ed under the charter were not misused or 
 abused; id. The courts will not presume 
 that the power of repeal has been improper- 
 ly exercised ; 5 Thomp. Corp. § 6579. Where 
 the legislature reserves the unqualified right 
 of repeal upon the happening of a certain 
 condition, it is exclusively within its power 
 to determine whether the condition has hap- 
 pened, and a previous judicial determination 
 of that fact is not necessary; id.; Erie & N. 
 E. R. Co. v. Casey, 26 Pa. 287; Crease v. 
 Babcock, 23 Pick. (Mass.) 334, 34 Am. Dec. 
 61; Myrick v. Brawley, 33 Minn. 377, 23 N. 
 W. 549. And so where there is a right of re- 
 peal in the legislature in case the corporation 
 misuses its franchises; Erie & N. E. R. Co. 
 v. Casey, 26 Pa. 287. Such misuse or abuse 
 of corporate privileges consists in any posi- 
 tive act in violation of the charter and in 
 derogation of public right, wilfully done or 
 caused to be done by those appointed to man- 
 age the general concerns of the corporation ; 
 id. Where a franchise is granted with a 
 provision that if not exercised in a specified 
 time it shall be void, upon the expiration of 
 
 the time without the performance of the con- 
 dition, the charter falls without any action 
 on the part of the state to declare its for- 
 feiture; Com. v. Water Co., 110 Pa. 391, 2 
 Atl. 63; Elizabethtown Gas Light Co. v. 
 Green, 46 N. J. Eq. 118, IS Atl. S44; In re 
 Brooklyn, W. & N. Ry. Co., 81 N. Y. 69. But 
 other cases hold that the charter is not for- 
 feited until action by the state either legisla- 
 tive or judicial; Hovelman v. R. Co., 79 Mo. 
 632; Davis v. Gray, 10 Wall. (U. S.) 203, 21 
 I.. Ed. 447; Chicago City Ry. Co. v. People, 
 73 111. 541. The former view is strongly 
 maintained in 5 Thomp. Corp. § 6586. If the 
 charter or the statute under which it is 
 granted names a definite period for the life 
 of the corporation, the corporation is dis- 
 solved ipso facto, upon the expiration of that 
 period without any action either on the part 
 of the state or of the members of the corpo- 
 ration ; People v. R. Co., 76 Cal. 190, 18 Pac. 
 308; Scanlan v. Crawshaw, 5 Mo. App. 337. 
 "The incapacity to revive or resuscitate the 
 powers of a corporation may arise from three 
 causes: 1. The absence of the necessary of- 
 ficers who are required to be present when 
 the deficiency is supplied, or their incapacity 
 or neglect to do some act which is requisite 
 to the validity of the appointment; 2. The 
 want of the necessary corporators who are 
 required to unite in the appointment ; 3. The 
 want of the proper persons from whom the 
 appointment is to be made." 5 Thomp. Corp. 
 § 6658. 
 
 Upon a dissolution, the assets of all kinds 
 are a trust fund for the payment of debts, 
 and afterwards for distribution among the 
 stockholders ; Lathrop v. Stedman, 13 Blatch. 
 134, Fed. Cas. No. 8,519 ; Blake v. R. Co., 39 
 N. H. 435; Huber v. Martin, 127 Wis. 412, 
 105 N. W. 1031, 1135, 3 L. R. A. (N. S.) 653, 
 115 Am. St. Rep. 1023, 7 Ann. Cas. 400; Late 
 Corporation of Church of Jesus Christ of 
 Latter-Day Saints v. U. S., 136 U. S. 1, 10 
 Sup. Ct, 792, 34 L. Ed. 47S; Temperance 
 Mut. Ben. Ass'n v. Soctety, 1S7 Pa. 38, 40 
 Atl. 1100; 15 Harv. L. Rev. 743; 15 L. Q. 
 Rev. 115. 
 
 The ancient rule of the common law was 
 supposed to be that upon the termination of 
 a corporation its real estate reverted to the 
 grantor and its personalty to the sovereign ; 
 Titcomb v. Ins. Co., 79 Me. 315, 9 Atl. 732; 
 Kent (13th ed.) 307. See Huber v. Martin, 127 
 Wis. 412, 105 N. W. 1031, 1135, 3 L. R. A. 
 (N. S.) 653, 115 Am. St. Rep. 1023, 7 Ann. 
 Cas. 400. This rule has long been obsolete, 
 if it ever was the law, except as regards pub- 
 lic or religious corporations; Late Corpora- 
 tion of the Church of Jesus Christ of La tier- 
 Day Saints v. U. S., 136 U. S. 1, 10 Sup. Ct. 
 792, 34 L. Ed. 478. It has been repudiated 
 in the United States as to business corpora- 
 tions; Huber v. Martin, 127 Wis. 412, 105 
 N. W. 1031, 3 L. R. A. (N. S.) 653, 115 Am. 
 St. Rep. 1023, 7 Ann. Cas. 400; Baldwin v.
 
 DISSOLUTION 
 
 891 
 
 : 
 
 Johnson, 95 Tex. 85, 65 S. W. 171: Mora- 
 wetz, Prlv. Corp. § 1032; Late Corporation 
 of the Church of Jesus Christ of Latter-Day 
 Saints v. U. S., 136 U. S. 1, 10 Sup. Ct. 792, 
 34 L. Ed. 478 ; Bacon v. Robertson, 18 How. 
 (U. S.) 4S0, 15 L. Ed. 499. 
 
 In England it is said there is no instance 
 on record that the doctrine was ever applied 
 by any English court; [1899] 1 Q. B. 325. 
 But it is said that the doctrine that at dis- 
 solution the lands of a corporation revert to 
 the donor was almost universally a< 
 in the English cases before 1800. Prof. Wil- 
 liston, in Business Corp. before 1800, 3 Sel. 
 Essays, Anglo-Ainer. Leg. Hist 233. 
 
 As to a public or charitable corporation the 
 ancient rule still prevails that upon dissolu- 
 tion its personal property, like that of a man 
 dying without heirs, ceases to be the subject 
 of private ownership and becomes subject to 
 the disposal of the sovereign authority, while 
 the real estate reverts to the grantor or donor 
 unless it is otherwise provided by statute; 
 Late Corporation of the Church of Jesus 
 Christ of Latter-Day Saints v. U. S., 136 U. 
 S. 1, 47, 10 Sup. Ct. 792, 34 L. Ed. 47S, where 
 it was held that the property of the Mormon 
 church became vested in the United States. 
 
 On the dissolution of a Louisiana corpora- 
 tion owning land in Texas, it was held that 
 the stockholders became tenants in common 
 of such land; Baldwin v. Johnson, 95 Tex. 
 85, 65 S. W. 171. The title to the land of an 
 eleemosynary corporation reverts on its dis- 
 solution to the original owner without any 
 act on his part; Mott v. Danville Seminary, 
 129 111. 403, 21 N. E. 927. But it is held that, 
 upon the dissolution of a charitable corpora- 
 tion, the property must be appropriated by 
 the court to the purposes most nearly akin 
 to the intent of the donors; it does not re- 
 vert to the donors; Centennial «fc Memorial 
 Ass"n of Valley Eorge, 235 Pa. 200, S3 Atl. 
 6S3. 
 
 Actions at law brought against a pri- 
 vate corporation abate upon its dissolution; 
 Life Ass'n v. Goode, 71 Tex. 90, 8 S. W. 839; 
 contra, Greenbrier Lumber Co. v. Ward. 30 
 W. Va. 43, 3 S. E. 227; Breene v. Bank, 11 
 Colo. 97, 17 Pac. 2S0. Dissolution puts an 
 end to all existing contracts. It works a 
 breach of the contract: Green's Brice, 
 I ires S03. See State Bank v. State. 1 Blackf. 
 (Ind.) 267, 12 Am. Dec •J.".'.); Schleider v. 
 Dielman, 44 La. Ann. 462, 10 South. 934. 
 
 Since the dissolution of a corporation, ei- 
 ther by its own limitation or by the decree 
 of a court of competent jurisdii tion, puts an 
 end to its legal existence, it can thereafter 
 neither prosecute nor defend an action. Ac- 
 cordingly, in the absence of statutory reser- 
 vations (which, however, generally exist), up- 
 on the dissolution of a corporation all actions 
 pending against it abate; Mununa v. Poto- 
 mac Co., 8 Pet (U. S.i 281, 8 I,. I'd. :•:.-.; 
 First Nat Bank v. Colby, 21 Wall. (U. S.) 609, 
 
 22 I, Ed. 687; City Ins. Co. v. Bank, 68 111. 
 348; Merrill v. Ban!:. Dec. 
 
 649 ; Thornton v. P. Co.. : Me 
 
 Culloch v. Norwv 
 
 suit has been cot 
 
 ition will destroy the at 
 Wilcox v. Ins. C 
 Fanners 1 & Mechanics' Bank v. LI 
 
 & S. (Pa.) 207, 42 An.. I'. C. 29 • . D 
 ed into a judgment at t;. 
 solution, and this, whether the attai 
 original or is sued out in aid of a pending 
 action. 
 
 Under the statutes providing for the 
 ing alive of actions which would otherwise 
 on the dissolution of a corporation, it 
 is not quite settled whether the same prin- 
 ciples apply as those which apply to the sur- 
 vival of actions on the death of a natural per- 
 son ; hut the weight of authority is in favor 
 of the affirmative; Hepworth v. Ferry Co., 
 62 Hun 257, 16 X. V. - _' ; Milwaukee 
 
 Mut Fire ins. Co. v. Sentinel Co., 81 Wis. 
 207, 51 N. W. 440, 15 L. R. A. 
 
 See FOBFEITUBE OF CHABTEB; l'liANCUISE. 
 
 In Practice. The act of rend im 
 proceeding null, or changing its character; 
 as where an attachm Car as 
 
 it is a lien on property by entering bail or 
 security to the action ; or as injunctions are 
 dissolved by the court 
 
 DISSUADE. To dissuade a witness from 
 giving evidence against a person indicted is 
 an indictable offence at common law; Hawk. 
 PI. Cr. b. 1, c. 21, s. 15. The mere attempt 
 to stifle evidence is also criminal alt. 
 the persuasion should not succeed, on the 
 general principle that an incitement to com- 
 mit a crime is in itself criminal : 
 21; 6 id. 454; 2 Stra. 901; 2 Leach I 
 
 DISTANCE. The rule is that the distance 
 I atween given points should he measured in 
 a stra; . 5 E. & B. 92; 6 id. 31 
 
 L. R. Exch. .".2. But in a rule of court 
 serviie the distance has been taken by the 
 usual road; Smith v. Ingraham, 7 Cow. (N. 
 Y.) IIP. 
 
 DISTILLERY. A place or building where 
 alcoholic liquors are distilled or manufac- 
 tured. See r. S. v. Tenbroek, Pet C. C. 180, 
 Fed. Cas. No. 16,446s A I .1 ly 13, IS 
 Stat. L. 117; Atlantic D< Libby, 45 
 
 N. V. v. I-ca-. 
 
 N. Y. 35, 1.". Am. Rep. I 
 
 DISTRACTED PERSON. A term used in 
 the statutes of Illinois. Kev. Lav 
 :;:;•_'. and New Hampshire, Dig. Laws 
 9, to express a state of Insanity. 
 
 DISTRACTI0. In Civil Law. The sale of 
 a pledge by a debtor. The appropriation of 
 the property of a ward by a -uardiau. Cal- 
 vinus, Lex.
 
 DISTRAHERE 
 
 892 
 
 DISTRESS 
 
 DISTRAHERE. To withdraw; to sell. 
 Oistrahere controversies, to diminish and 
 settle quarrels ; distrahere matrimoniam, to 
 dissolve marriage ; to divorce. Calvinus, Lex. 
 
 DISTRAIN. To take as a pledge property 
 of another, and keep the same until he per- 
 forms his obligation or until the property is 
 replevied by the sheriff. It was used to se- 
 cure an appearance in court, payment of 
 rent, performance of services, etc. 3 Bla. 
 Com. 231; Fitzh. N. B. 32 (B) (C), 223; 
 Boyd v. Howden, 3 Daly (N. Y.) 455. See 
 Distress. 
 
 DISTRESS (Fr. distraindre, to draw away 
 from; Lat. distinct io). The taking of a per- 
 sonal chattel out of the possession of a 
 wrong-doer into the custody of the party in- 
 jured, to procure satisfaction for the wrong 
 done. 3 Bla. Com. 6; Hard v. Nearing, 44 
 Barb. (N. Y.) 4S8. It is generally resorted 
 to for the purpose of enforcing the payment 
 of rent, taxes, or other duties, as well as 
 to exact compensation for such damages as 
 result from the trespasses of cattle. Correct- 
 ly speaking, one distrains a man by (per) a 
 thing. 2 Poll. & Maitl. 576. 
 
 This remedy is of great antiquity, and is said by 
 Spelman to have prevailed among the Gothic na- 
 tions of Europe from the breaking up of the Roman 
 Empire. But in a recent work the opinion is ex- 
 pressed that distress before judicial proceedings 
 had been taken is not very old. 1 Poll. & Maitl. 
 Hist. Engl. Law 334. Distress was not a means 
 whereby the distrainor could satisfy the debt due 
 him ; ibid. After distress the lord might not sell 
 the goods ; they were not in his possession, but 
 were in custodia legis, and he must be ready to give 
 them up if the tenant tendered arrears or offered 
 gage and pledge that he would contest the claim in 
 a court of law. The lord could not take what he 
 liked best among the chattels that he found ; 2 id. 
 574. The English statutes since the days of Magna 
 Charta have, from time to time, extended and mod- 
 ified its features to meet the exigencies of the 
 times. Our state legislatures have generally, and 
 with some alterations, adopted the English provi- 
 sions, recognizing the old remedy as a salutary and 
 necessary one, equally conducive to the security of 
 the landlord and to the welfare of society. As a 
 means of collecting rent, however, it has become un- 
 popular in some states as giving an undue advan- 
 tage to landlords over other creditors in the col- 
 lection of debts. See Wbglam v. Cowperthwaite, 2 
 Dall. (U. S.) 68, 1 L. Ed. 292 ; Hartshorne v. Kier- 
 man, 7 N. J. L. 29 ; Garrett v. Hughlett, 1 Harr. & 
 J. (Md.) 3; Charleston v. Price, 1 McCord (S. C.) 
 299; Owens v. Conner, 1 Bibb (Ky.) 607; Mayo v. 
 Winfree, 2 Leigh (Va.) 370 ; Burket v. Boude, 3 
 Dana (Ky.) 209. . 
 
 In the New England states the law of attachment 
 on mesne process has superseded the law of dis- 
 tress ; Potter v. Hall, 3 Pick. (Mass.) 368, 15 Am. 
 Dec. 226 ; 4 Dane, Abr. 126. New York has ex- 
 pressly abolished it by statute. Acts of 1846, ch. 
 274. This statute was held constitutional and valid 
 as against a lease of prior date which provided for 
 the remedy ; Van Rensselaer v. Snyder, 13 N. Y. 
 299 ; Conkey v. Hart, 14 N. Y. 22, it being held a 
 mere change of remedy ; but such a statute would 
 not apply when the goods had been seized ; Dutch- 
 er v. Culver, 24 Minn. 584. The courts of North 
 Carolina hold it to be inconsistent with the spir- 
 it of her laws and government, and declare that 
 the common process of distress does not exist in that 
 state; Youngblood v. Lowry, 2 McCord (S. C.) 39, 
 13 Am. Dec. 698 ; Dalgleish v. Grandy, 1 N. C. 249 ; 
 to the same effect are the laws of Missouri; Crock- 
 
 er v. Mann, 3 Mo. 472, 26 Am. Dec. 684. In Ohio, 
 Tennessee, and Alabama there are no statutory pro- 
 visions on the subject, except in the former state to 
 secure to the landlord a share of the crops in pref- 
 erence to an execution creditor, and one in the lat- 
 ter, confining the remedy to the city of Mobile ; 
 McLeod v. McDonnel, 6 Ala. 239. Mississippi has 
 abolished It by statute ; but property cannot be 
 taken in execution on the premises unless a year's 
 rent, if it be due, is first tendered to the landlord, 
 who has also a lien on the growing crop ; Arbuckle 
 v. Nelms, 50 Miss. 556 ; to the same effect are the 
 statutes of Wisconsin ; Wis. Laws 1866, p. 77. In 
 Colorado a landlord cannot distrain unless in pur- 
 suance of an express agreement ; Herr v. Johnson, 
 11 Colo. 393, 18 Pac. 342. 
 
 To authorize a distress there must be a 
 fixed rent in money, produce or services ; 
 it may be by parol and, if not certain, it 
 must be capable of being reduced to a cer- 
 tainty ; Co. Litt. 96 a ; Miles v. Stevens, 3 
 Pa. 31, 45 Am. Dec. 621; Jacks v. Smith, 1 
 Bay (S. C.) 315; and hence it will not lie 
 on an agreement to pay no rent, but make 
 repairs of uncertain value; Grier v. Cowan, 
 Add. (Pa.) 347; a distress for a rent of a 
 certain quantity of grain, may name the 
 value in case of tender of arrears or sale 
 of the property ; "Warren v. Forney, 13 S. & 
 R. (Pa.) 52. See Jones v. Gundrim, 3 W. & 
 S. (Pa.) 531. 
 
 A distress can only be taken for rent in 
 arrear, and not until the day after it is 
 due ( which may be in advance) ; Russell 
 v. Doty, 4 Cow. (N. Y.) 576; Williams v. 
 Howard, 3 Munf. (Va.) 277; First Nat. 
 Bank of Joliet v. Adam, 138 111. 483, 28 N. 
 E. 955. But no previous demand is neces- 
 sary, except where the lease requires it; 
 Almand v. Scott, 83 Ga. 402, 11 S. E. 653. 
 Nor will the right be extinguished either by 
 an unsatisfied judgment for the rent or by 
 taking a promissory note therefor, unless 
 such note has been accepted in absolute pay- 
 ment of the rent; Bates v. Nellis, 5 Hill 
 (N. Y.) 651. 
 
 It may be taken for any kind of rent, the 
 detention of which beyond the day of pay- 
 ment is injurious to him who is entitled to 
 receive it. 
 
 At common law, the distrainer must have pos- 
 sessed a reversionary interest in the premises out of 
 which the distress issued, unless he had expressly 
 reserved a power to distrain when he parted with 
 the reversion; Cornell v. Lamb, 2 Cow. (N. Y.) 
 652 ; 1 Term 441 ; Co. Litt. 143 b. But the English 
 statute of 4 Geo. II. c. 28, substantially abolished 
 all distinctions between rents, and gave the remedy 
 in all cases where rent is reserved upon a lease. 
 The effect of the statute was to separate the right 
 of distress from the reversion to which it had be- 
 fore been incident, and to place every species of 
 rent upon the same footing as if the power of dis- 
 tress had been expressly reserved in each case. 
 
 A distress may be made by each one of 
 several joint tenants for the whole rent or 
 they may all join together; 4 Bingh. 562; 2 
 Ball & B. 465; by tenants in common, each 
 for his separate share; 1 McCl. & Y. 107; 
 Cro. Jac. 611; unless the rent be entire, as 
 of a house, in which case they must all join ; 
 Co. Litt 197 o; 5 Term 246; a husband as
 
 DISTItESS 
 
 893 
 
 DIS 1 I 
 
 tenant by the curtesy for rent due to his 
 wife, although due to her as executrix or 
 administratrix; 2 Saund. 195; a widow aft- 
 er dower has been admeasured for her third 
 of the rent; Co. Litt. 32 <i\ an heir at law. or 
 devisee, for that which becomes due to them 
 respectively, after the death of the ancestor, 
 in respect to their reversionary estate; 
 Wright v. Williams, 5 Cow. (N. I.) 501; I 
 Saund. 287; and guardians, trn 
 agents who make Leases in their own i 
 as well as the assignee of the reversion which 
 is subject to a lease; Slocum v. Clark, 2 Hill 
 (X. Y.i 475; 5 C. & P. 379. Payment of rent 
 is sufficient attornment to enable the party 
 to whom the payment is made to make a dis- 
 tress; Walker v. McDonald, 'JS 111. Aim'. 643. 
 Generally all goods found upon the prem- 
 ises, whether of tenant, under-tenant, or 
 stranger, may be distrained for rent in ar- 
 rear; Spencer v. McGowen, 13 Wend. (N. Y.) 
 •_*:.»; ; Kessler v. McConachy, 1 Rawle (Pa.) 
 435; Howard v. Ransay, 7 H. & J. (Md.) 
 120; Davis v. Payne's Adm'r, 4 Rand. (Ya.) 
 334; Reeves v. McKenzie, 1 Bail. (S. C.) 
 497; Com. Dig. Distress (B 1). Thus, a gen- 
 tleman's chariot in a coach-hoUse of a livery- 
 stable keeper was distrainable by the land- 
 lord of the livery-stable keeper; 3 Burr. 
 1498; cattle put on the tenant's land by 
 consent of the owners of the beasts, are 
 distrainable by the landlord immediately aft- 
 er for rent in arrear; 3 Bla. Com. 8; and 
 furniture leased to a tenant, and used by 
 him on the demised premises, is subject to 
 the landlord's right of distress for rent; 
 Myers v. Esery, 134 Pa. 177, 19 Atl. 4BS. 
 The necessity of this rule is justified by the 
 consideration that the rights of the landlord 
 would be liable to be defeated by a great 
 variety of frauds and collusions, if his reme- 
 dy should be restricted to such goods only 
 as he could prove to be the property of the 
 tenant. 
 
 Goods of a person who has some interest 
 in the land jointly with the distrainor, as 
 those of a joint tenant, although found up- 
 on the land, cannot be distrained ; nor goods 
 of executors and administrators, or of the 
 assignee of an insolvent regularly discharged 
 according to law. in Pennsylvania, for more 
 than one year's rent. Nor can the goods of 
 a former temint. rightfully on the land, be 
 distrained for another's rent, as emblements, 
 or growing crops of a tenant at will (putting 
 on notice, even after they are reaped, if they 
 remain on the land for the purpose of hus- 
 bandry; Willes 131; or in the hands of a 
 vendee they cannot be distrained although 
 the purchaser allow them to remain uncul 
 after they have come to maturity; 2 Ball & 
 B. 362; 5 J. B. Moo. 97. If a tenant seek 
 to remove from the premises any portion of 
 the crops before the rent is due. he is sub- 
 ject to distraint immediately; Daniel v. Har- 
 ris, 84 Ga. 479, 10 S. E. 1013. 
 
 As a distress Ls only of the property of the 
 tenant, thii ga wherein he can have no ab- 
 B proper:. and 
 
 animals jirn naPl 
 
 yet deer, which are of a wild nam 
 In a private • i It, may 
 
 be distrained Cor i m. 7. Tb< 
 
 can be no distress of snch I 
 be restored to the owner ii: 
 as when taken, as milk, fruit, and t! 
 :: Bla. I loin '.»; or thing 
 to the freehold, as furnaces, wind 
 and the like; Co. Litl 175; or i — utially 
 part of the freehold although for a I 
 moved therefrom, as a millstone rem< 
 he picked; or an anvil fixed in a smith's 
 shop; 8 Price 3; 1 Q. B. B95; 3 W. 961. 
 
 Goods are also privileged in cases when 
 the proprietor is either compelled from i 
 C€88ity to place his goods upon the land, or 
 where he does so for vial purp 
 
 Brown v. Sims, 17 B. & R. (Pa.) 139; Hos- 
 kins v. Paul. 9 X. J. E. 11". IT Am. Dee 455; 
 Himely v. Wyatt, 1 Bi - C.) 102; I'haelon 
 v. McBride, 1 Pay (S. C.) IT": loung 
 v. Lowry, - McCord (S. O.) 39, 13 Am. D 
 698; 3 Ball & B. 75; 8 J. B. Moo. 243; 2 C. & 
 P. 353. In the first case, the goods are ex- 
 empt because the owner has no option 
 
 of a traveller in an inn: 7 Hen. VII. 
 M. l. p. 1 ; l W. Bla 483; 3 Burr. 1408. in 
 the other, the interests of the community 
 require that commerce should be encourag- 
 ed; and adventurers will not engage In 
 ulations if the property embarked is to be 
 made liable for the payment of debts 
 never contracted. Hence goods landed at a 
 wharf, or deposited in a warehouse on stor- 
 age; Brown v. Sims, 17 8, & B. (Pa.) 138; 
 Richardson v. Merrill, 21 Me. 47; Connah 
 v. Hale. 23 Wend (N. V.) 462; goods of a 
 third person consigned to an agent to be sold 
 On commission (and if the landlord knows 
 that the goods are so owned and lias them 
 sold under distress, he is liable to 
 in trespass; Brown v. Stackhouse, 155 l'a. 
 582, 26 Atl. 669, 35 Am. st. Rep. '."» s >; a 
 horse standing in a smith's shop to be shod, 
 or in a common inn, or cloth at a tailor's 
 house to be made into a coat, or coin Bent to 
 a mill to be ground; :i Bla. C annot 
 
 be distrained; neither can »f B bonni- 
 
 er, for rout due by the keeper of a 
 house; Kiddie v. Welden, 5 Whart (Pa.) 
 
 9; unless used by the tenant with the I 
 er's consent and without that of the land- 
 lord; Matt! • as v. Stone, l Hill (N. Y. 
 
 In this country whether the tenant con- 
 ducts a regular trade 01 
 
 have been considered immaterial with re- 
 niption of things on the premises 
 in the way of trade: Howe Sewing Mach. 
 Co. v. Sloan. ST Pa. 438, SO Am. Rep. 376; 
 McCreery v. Clatllin. .".7 Md. 435, 11 Am. Uep. 
 542. See list of exemptions allowed under 
 this rule; 2 Tiffany, Landl. & Ten. 2007.
 
 DISTRESS 
 
 894 
 
 DISTRESS 
 
 At common law, goods delivered to a com- 
 mon carrier, or other person, to be conveyed 
 for hire, or goods on the premises of an auc- 
 tioneer, for the purpose of sale are privi- 
 leged ; 1 Cr. & M. 380. 
 
 Goods taken in execution cannot be dis- 
 trained. The law in some states gives the 
 landlord the right to claim payment out of 
 the proceeds of an execution for rent not 
 exceeding one year, and he is entitled to pay- 
 ment up to the day of seizure, though it be 
 in the middle of a quarter; Binns v. Hudson, 
 5 Binn. (Fa.) 505; but he is not entitled to 
 the day of sale. See Trappan v. Morie, 18 
 Johns. (N. Y.) 1. The usual practice is to 
 give notice to the sheriff that there is a cer- 
 tain sum due to the landlord as arrears of 
 rent, — which notice ought to be given to the 
 sheriff, or person who takes the goods in ex- 
 ecution upon the premises; for the sheriff 
 is not bound to find out whether rent is due, 
 nor is he liable to an action unless there has 
 been a demand of rent before the removal; 
 Com. Dig. Rent (D 8) ; Alexander v. Mahon, 
 11 Johns. (N. Y.) 1S5. This notice can be 
 given by the immediate landlord only. A 
 ground-landlord is not entitled to his rent 
 out of the goods of the under-tenant taken 
 in execution; 2 Stra. 787. And where there 
 are two executions, the landlord is not en- 
 titled to a year's rent on each. See 2 Stra. 
 1024. Goods distrained and replevied may 
 be distrained by another landlord for subse- 
 quent rent; Woglam v. Cowperthwaite, 2 
 Dall. (U. S.) 68, 1 L. Ed. 292. Where a ten- 
 ant makes an assignment in the usual form, 
 for the benefit of creditors, the assigned 
 property is no longer his in his own right, 
 and it cannot be seized under a distress war- 
 rant for rent; Ex parte Knobebloch, 26 S. 
 G. 333, 2 S. E. 612; Bischoff v. Trenholm, 36 
 S. C. 75, 15 S. E. 346. 
 
 By statute in some states tools of a man's 
 trade, some designated household furniture, 
 school-books, and the like, are exempted 
 from distress, execution, or sale. In Penn- 
 sylvania, property to the value of $300, ex- 
 clusive of all wearing apparel of the defend- 
 ant and his family, and all Bibles and school- 
 books in use in the family, are exempted 
 from distress for rent. Also sewing-ma- 
 chines in private families. 
 
 There are also goods conditionally privi- 
 leged, as beasts of the plough, which are ex- 
 empt if there be a sufficient distress besides 
 on the land whence the rent issues ; Co. Litt. 
 47 a ; implements of trade, as a loom in ac- 
 tual use, where there is a sufficient distress 
 besides ; 4 Term 565 ; other things in actual 
 use, as a horse whereon a person is riding, 
 an axe in the hands of a person cutting 
 wood, and the like ; Co. Litt. 47 o. 
 
 The leading case upon exemptions from 
 distress, Simpson v. Hartopp, Willes 512, 1 
 Sm. L. Cas. (9th Am. ed.) 721, has been the 
 subject of critical review in England after 
 the lapse of 150 years with respect to a 
 
 curious application of one of its exceptions 
 to the rule subjecting to distress all prop- 
 erty on the premises, including that of third 
 persons. The exception declared by Willes, 
 J., of "things delivered to a person exercis- 
 ing a public trade, to be carried, wrought, 
 worked up, or managed in the way of his 
 trade or employ," was the subject of con- 
 struction in [1908] 1 Ch. 49, where pictures 
 sent to an art club for exhibition were held 
 not to be within it, because the owner could 
 not show that the pictures were delivered 
 to the club "for the purposes of trade, his 
 trade being a public trade." In this judg- 
 ment, Neville, J., says that it seems extraor- 
 dinary that in the year 1907 "it should be 
 possible in a country which boasts of civili- 
 zation, which purports to protect the proper- 
 ty of the law-abiding citizen, to raise such 
 question. But so it is. The rule that the 
 landlord is entitled to distrain on the prop- 
 erty of third persons upon the premises, sub- 
 ject to certain exceptions, has up to the 
 present day escaped the zeal of the legal re- 
 former and therefore I have to deal with 
 the law as I find it." He then proceeds 
 to find "it impossible," as is remarked by an 
 annotator, "to extend an irrational excep- 
 tion, formulated towards the middle of the 
 eighteenth century, from a still less reason- 
 able rule which has been a part of the law 
 of landlord and tenant ever since leasehold 
 interests have been known to the law ;" 24 
 L. Q. Rev. 49. The Court of Appeal affirmed 
 the decision, but on the ground that the ex- 
 ception was laid down by Willes, J., in 1744 
 "with great accuracy" and must be adhered 
 to as a definition, and the word "managed" 
 used by him was equivalent to "disposed of," 
 which would not apply to the case. Thus, 
 though reaching the same result, they differ- 
 ed from Neville, J., who put the case on the 
 ground that "public trade" meant that which 
 was open to all buyers and nqt to those only 
 of the club. 
 
 ' At common law a distress could not be 
 made after the expiration of the lease. This 
 evil was corrected by statute in Pennsyl- 
 vania in 1772. Similar legislative enact- 
 ments exist in most of the other states. In 
 Philadelphia, the landlord may, under cer- 
 tain circumstances, apportion his rent, and 
 distrain before it becomes due. 
 
 A distress may be made either upon or off 
 the land. It generally follows the rent, and 
 is, consequently, confined to the land out of 
 which it issues; Woodf. Landl. & T. 456. 
 If two pieces of land, therefore, are let by 
 two separate demises, although both be con- 
 tained in one lease, a joint distress cannot 
 be made for them ; for this would be to make 
 the rent of one issue out of the other; Rep. 
 t. Hardw. 245; 2 Stra. 1040. But where 
 lands lying in different counties are let to- 
 gether by one demise at one entire rent, and 
 it does not appear that the lands are sepa- 
 rate from each other, one distress may be
 
 DISTRESS 
 
 895 
 
 
 made for the whole rent; 1 Ld. Raym. 55; 
 11' Mod. TO. And where rent is charged up- 
 on Land which is afterwards held by Bi 
 tenants, the grantee or landlord may dis- 
 train for the whole upon the land of any at 
 them; because the whole rent is deemed to 
 issue out of every part of the land; Unite, 
 Abr. 671. If there be a house on the land. 
 the distress may be made Ld the hou 
 the outer door or window be open, a d 
 may be taken out of it ; Rolle, Ahr. 67L If 
 
 an outer door I pen. an inner door may 
 
 be broken tor the purpose oi taking a dis- 
 tress, but not otherwi e; Caa t. Hard. IG8, 
 In Levying a distress tor rent entrance 
 obtained into the courtyard through a gate, 
 and being there, the bailiff broke open the 
 main door of the warehouse and distrained 
 therein; the court hold the distress Illegal, 
 tor the reason that the door that was I 
 was the outer door; 68 Law T. 742. A dis- 
 tress was held lawful where a party climbed 
 ever the wall surrounding the yard of a 
 bouse and entered the house by an open 
 window: [1894] 1 Q. B. 119. Barges on a 
 river, attached to the leased premises (a 
 Wharf) by ropes, cannot be distrained; G 
 Bingh. 150. 
 
 By an act of 1772 in Pennsylvania copied 
 from the aet of 11 Geo. II. c. V.>. where a 
 tenant fraudulently removes his goods from 
 the premises to prevent a distress, the land- 
 lord may distrain on them within 30 days 
 after removal, but not on goods previously 
 sold bona fide and tor a valuable considera- 
 tion to one not privy to the fraud. To bring 
 a case within the act. the removal must 
 take place after the rent heroines due, and 
 must he secret, not made in open day; for 
 such removal cannot he said to he clandes- 
 tine within the meaning of the act; Grace 
 v. Shively, 12 S. & R. (Pa.) 217; 7 Bingh. 
 423; 1 Mood. & M. 535. This English stat- 
 ute has been re enacted in many of the 
 states, but the period during which the 
 goods may be followed varies in different 
 states. In Louisiana the landlord may fol- 
 low goods removed from his premises for 
 fifteen days after removal, provided they 
 continue to be the property of the tenant; 
 La. Civ. Code 2675; Tayl. Landl. ft T. § 53a 
 It has been made a question whether goods 
 are protected that were fraudulently remov- 
 ed on the night before the rent had become 
 due; 4 Campb. 135. The goods of a stranger 
 cannot be pursued; they can he distrained 
 only while they are on the premises; Adams 
 v. La Comb, 1 DaU. (U. S.) 440, 1 L. Ed. 214. 
 
 A distress for rent may be made 
 by the person to whom it is due. or. winch 
 is the preferable mode, by a constable or 
 bailiff, or other officer properly authorized 
 by him. If made by a con-table or bailiff, 
 he must be properly authorized to make it; 
 for which purpose the landlord should give 
 him a written authority, usually called a 
 warrant of distress; but a subsequent as- 
 
 sent and recognition given by the 
 
 use the di Lfl suf- 
 
 ficient ; Hasua N. P. ! 
 
 - thus with the 
 
 authority to in:: 
 tenant - 
 
 of the whole, and 
 I bom as a distn 
 the warrant to I B 
 landlord, and that be 
 of the said warrant; 
 ought, if required, i 
 When making I 
 for the \\ 
 
 not be found at 
 
 the whole, or the party 
 
 end di •• It must 
 
 en in the 
 ; ( 
 which may be in the night; Co. !.i: r - 142a. 
 
 As soon as a an inven- 
 
 tory of the nd a 
 
 copy of it deliven d to I 
 with a notice of taking such distress, with 
 of taking it. and an o] portunity 
 thus afforded the owner to 
 deem the goi ds. 1 
 distre Ired by th 
 
 in writing; and. t'. 
 notice may be given eitb 
 the premises, or to the owner of the 
 distrained; 12 Mod. 
 
 - directed by the y the 
 
 cause of taking, it is not material wl 
 
 rurately state the period of the rent's 
 becoming due; DougL ^7 
 the true cause of taking 
 
 d therein : 7 Term 054. If 
 be not personally given, it should be left in 
 writing at the tenant's house, or. according 
 to the directions of the act, at the mat 
 house, or other mo n the 
 
 premises charged with the rent dlstr 
 for. 
 
 The distrainor ma; r impound the 
 
 distress on the premises tor th.' Ave days 
 mentioned in the act, but 1 
 
 ■ after that ti: 
 2 Dall. (U. SO 09, I L Ed. ! 
 many cases it is desirable, for t: 
 the tenant, that the goods should I 
 
 n as the law permits, it is usual for 
 him to Blgn an agreement al to their 
 
 remaining on the pr r " time, 
 
 in the custody of tl 
 
 son by him appo ated tot that pur 
 While in his po " <: >n- 
 
 not use or work cattle distrained, nn' 
 be for the owner's I 
 
 1 ►ane, A - dis- 
 
 trained for rent may be | by a 
 
 nt thereof before sale; Lardner v. Ins. 
 
 ■_■ w. n. <' ■ Pa.) • 
 
 are so],], they must be 
 appraised by two reputable freeholders, who 
 shall take an oath or affirmation, to be ad-
 
 DISTRESS 
 
 896 
 
 DISTRICT ATTORNEY 
 
 ministered by the sheriff, under-sheriff, or 
 coroner, in the words mentioned in the act. 
 The next requisite is to give public notice 
 of the time and place of sale of the things 
 distrained; see Whitton v. Milligan, 153 Pa. 
 376, 26 Atl. 22 ; after which, if they have not 
 been replevied, they may be sold by the prop- 
 er officer, who may apply the proceeds to the 
 payment and satisfaction of the rent, and 
 the expenses of the distress, appraisement, 
 and sale; Woodf. Landl. & T. 1322. The 
 overplus, if any, is to be paid to the tenant. 
 A distrainor has always been held strictly 
 accountable for any irregularity he might 
 commit, although accidental, as well as for 
 the taking of anything more than was rea- 
 sonably required to satisfy the demand; 
 Bradb. Dist ; Gilbert, Rent. 
 
 At common law a landlord who had dis- 
 trained could not sell the goods; Davis v. 
 Davis, 128 Pa. 108, 18 Atl. 514. 
 
 DISTRESS INFINITE. In English Prac- 
 tice. A process commanding the sheriff to 
 distrain a person from time to time, and con- 
 tinually afterwards, by taking his goods by 
 way of pledge to enforce the performance of 
 something due from the party distrained 
 upon. In this case no distress can be im- 
 moderate, because, whatever its value may 
 be, it cannot be sold, but is to be immediate- 
 ly restored on satisfaction being made; 3 
 Bla. Com. 231. It was the means anciently 
 resorted to to compel an appearance. See 
 Attachment ; Arrest. 
 
 DISTRIBUTEES. The persons who are 
 entitled under the statute of distribution to 
 the personal estate of one who has died in- 
 testate. Henry v. Henry, 31 N. C. 279. 
 
 DISTRIBUTION. See Executors and Ad- 
 ministrators. 
 
 DISTRICT. A certain portion of the 
 country, separated from the rest for some 
 special purpose. 
 
 The United States is divided into judicial 
 districts, in each of which is established a 
 district court.; they are also divided into 
 election districts, collection districts, etc. 
 
 It may be construed to mean territory ; 
 Com. v. Dumbauld, 97 Pa. 305; and in the 
 revenue laws the words "district" and "port" 
 are often used in the same sense; Ayer v. 
 Thacher, 3 Mas. 155, Fed. Cas. No. 684. 
 
 DISTRICT ATTORNEY. District attor- 
 neys of the United States are appointed for 
 a term of four years in each judicial dis- 
 trict, whose duty it is to prosecute, in such 
 district, all delinquents, for crimes and of- 
 fences cognizable under the authority of the 
 United States, and all civil actions in which 
 the United States shall be concerned, except 
 in the supreme court, in the district in which 
 the court shall be holden. R. S. § 767. He 
 must appear upon the record for the United 
 States as plaintiff, in order that the United 
 States should be recognized as such on the 
 
 record ; U. S. v. Doughty, 7 Blatch. 424, Fed. 
 Cas. No. 14,986 ; U. S. v. Blaisdell, 3 Ben. 132, 
 Fed. Cas. No. 14,608; U. S. v. McAvoy, 4 
 Blatch. 418, Fed. Cas. No. 15,654. They are 
 under the direction of the attorney-general 
 and must report to him. 
 
 The officer who represents the state in 
 criminal proceedings within a particular 
 county is also, in some of the states, called 
 district attorney. As a prosecuting attor- 
 ney he is a quasi judicial officer and stands 
 indifferent between the accused and any pri- 
 vate interest; People v. Bemis, 51 Mich. 422, 
 16 N. W. 794. 
 
 See Prosecution ; Prosecutor. 
 
 DISTRICT COURTS. See United States 
 Courts. 
 
 DISTRICT MESSENGER SERVICE. The 
 
 service is not that of a common carrier, but 
 the furnishing of messengers to be used by 
 the employer in any way in which they could 
 be properly employed, in the course of which 
 the messenger becomes for the time the 
 servant of the employer and the company is 
 not liable for his dishonesty in the ordinary 
 course of his employment unless there was 
 failure to use proper care in his selection; 
 Haskell v. Messenger Co., 190 Mass. 189, 76 
 N. E. 215, 2 L. R. A. (N. S.) 1091, 112 Am. 
 St. Rep. 324, 5 Ann. Cas. 796. 
 
 DISTRICT OF COLUMBIA. A portion of 
 the country, originally ten miles square, 
 which was ceded to the United States by the 
 states of Virginia and Maryland, over which 
 the national government has exclusive juris- 
 diction. 
 
 Under the constitution, congress is authorized to 
 "exercise exclusive jurisdiction in all cases whatso- 
 ever, over such district, not exceeding ten miles 
 square, as may, by cession of particular states and 
 the acceptance of congress, become the seat of gov- 
 ernment of the United States." In pursuance of this 
 authority, the states of Maryland and Virginia 
 ceded to the United States a small territory on the 
 banks of the Potomac, and congress, by the act of 
 July 16, 1790, accepted the same, for the permanent 
 seat of the government of the United States. 
 
 By the act of July 11, 1S46, congress ceded back 
 the county of Alexandria, part of the District of Co- 
 lumbia, to the state of Virginia. 
 
 The seat of government was removed from Phila- 
 delphia to the District in December, 1800. As it ex- 
 ists at present, it constitutes but one county, called 
 the county of Washington. 
 
 By act of Congress of Feb. 21, 1871, a territorial 
 government was created for the District ; 16 Stat. 
 L. 419 ; which was not a mere municipality in its 
 restricted sense, but was held to be placed upon the 
 same footing with that of the states or territories 
 within the limits of the act ; Grant v. Cooke, 7 D. 
 C. 165. This government was, however, abolished by 
 act of June 20, 1S74, and a temporary government 
 by commissioners was thereby created, which exist- 
 ed until by act of June 11, 1878, provision was made 
 for the continuance of the District "as a municipal 
 corporation" and its control by the federal govern- 
 ment through these commissioners, two of whom are 
 appointed by the president and confirmed by the 
 senate, and the other is an engineer officer of the 
 army to be detailed for that service by the presi- 
 dent. It is a municipal corporation having a right 
 to sue and be sued, and is subject to the ordinary 
 rules that govern the law of procedure between prl-
 
 DISTRICT OF COLUMBIA 
 
 897 DISTRINGAS NDPEB VICE COMITEM 
 
 vate persons. The sovereign power Is lodged In the 
 government of the United States, and not In the 
 corporation of the District ; Metropolitan R. Co. v. 
 District of Columbia, 132 U. S. 1, 10 Sup. Ct 19, 
 33 L. Ed. 231. Congress is its local legislature ; Gib- 
 bons v. District of Columbia, 116 U. S. 404, 6 Sup. 
 Ct. 427, 29 L. Ed. 680 ; and exercises over it full and 
 entire jurisdiction both of a political and municipal 
 nature; Shoemaker v. U. S., 147 U. S. 282, 300, 13 
 Sup. Ct. 301, 37 L. Ed. 170 ; Parsons v. District of 
 Columbia, 170 U. S. 45, 18 Sup. Ct. 621, 42 L. Ed. 
 843 ; and it may legislate with respect to people 
 and property therein as may the legislature of a 
 state over any of its municipalities ; Mattingly v. 
 District of Columbia, 97 U. S. 687, 690, 24 L. Ed. 1098. 
 
 The District differs from a territory in 
 that the latter is the fountain from which 
 lights ordinarily How, though congress may 
 Intervene, while in the former the body of 
 private rights is created and controlled by 
 congress and not by a legislature of the 
 District; Kawananakoa v. Polyblank, 205 U. 
 S. 349, 354, 27 Sup. Ct. 526, 51 L. Ed. 834. 
 
 The District of Columbia and the territorial dis- 
 tricts of the United States are not states within the 
 meaning of the constitution and of the Judiciary 
 Act, so as to enable a citizen thereof to sue a citi- 
 zen of one of the states in the federal courts ; Hep- 
 burn v. Ellzey, 2 Cra. (U. S.) 445, 2 L. Ed. 332; 
 New Orleans v. Winter, 1 Wheat. (U. S.) 91, 4 L. Ed. 
 44; Seton v. Hanharu, R. M. T. Cuarlt. (Ga.) 374. 
 Kent says: "However extraordinary it might seem 
 to be, that the courts of the United States, which 
 were open to aliens, and to the citizens of every 
 Btate, should be closed upon the inhabitants of those 
 districts (territories and the District of Columbia), 
 on the construction that they were not citizens of a 
 state, yet as the court observed, this was a subject 
 for legislative, and not for judicial consideration." 
 1 Com. 349. It might be suggested as a coi 
 tion not here adverted to, that the theory on which 
 this right of suing in federal courts is based is 
 possible prejudice to the rights of a citizen of an- 
 other state or an alien in the state court. In the 
 District of Columbia and territories this would not 
 apply, as their courts are created by the federal 
 government. 
 
 For the judiciary, see United States Courts. 
 
 DISTRICT 10. A distraint, or distress. 
 Cowell. 
 
 DISTRINGAS. A writ directed to the 
 sheriff, commanding him to distrain a per- 
 son of his goods and chattels to enforce a 
 compliance with what is required of him. 
 It is used to compel an appearance where the 
 party cannot be found, and in equity may be avail- 
 ed of to compel the appearance of a corporation 
 aggregate. 4 Bouvier, Inst. n. 4191 ; Comyns, Dig. 
 Process (D 7); Chitty, Pr. ; Sellon. Pr. 
 
 A form of execution in the actions of det- 
 inue and assize of nuisance. Brooke, Abr. 
 pi. 20; Barnet v. Ihrie, 1 Rawle (Pa.) 44. 
 
 DISTRINGAS JURATORES (Lat. that you 
 distrain jurors). A writ commanding the 
 sheriff to have the bodies of the Jurors, or 
 to distrain them by their lands and goods, 
 that they may appear upon the day appoint- 
 ed. 3 Bla. Coin. 354. It issues at thi 
 time with the venire, though in theory a tier- 
 wards, founded on the supposed neglect of 
 the juror to attend. 3 Steph. Com. 590. 
 
 DISTRINGAS NUPER VICE COMITEM 
 (Lat. that you distrain the late sheriff). 
 A writ to distrain the goods of a sheriff who 
 Bouv.— 57 
 
 is out of office, to compel him to bring in the 
 body of a defendant, or to sell goods attach- 
 ed under a fl. fa., which he ought to have 
 done while in office, hut has failed to do. 
 1 Tidd, IT. 313. 
 
 It can only issue after a return of seizure 
 of goods to the value, etc.; Kline v. Church, 
 16 Pa. Dist. R. 559, where the practice was 
 considered, although the wril 
 len into disuse, and cases In 6 . and 
 
 Zane v. Cowperthwaite, l DalL (U. s. > 312, 
 1 L. Ed 152, were cited. 
 
 DISTURBANCE. A wrong done to an In- 
 corporeal hereditament by hindering or dis- 
 quieting the owner in the enjoyment of it 
 3 Bla. Com. 235; Downing v. Baldwin, 1 8. 
 ft R. (Pa.) 298; Files v. Magoon, 41 Me. 104. 
 The remedy for a disturbance is an action 
 on the case, or, in some instances in equity, 
 by an injunction. 
 
 DISTURBANCE OF COMMON. Any act 
 done by which the right of another to his 
 common is Incommoded or hindered. The 
 remedy is by distress (where beasts are put 
 on his common) or by an action on the case, 
 provided the damages are large enougb to 
 admit of his laying an action with a per 
 quod. Cro. Jac. 195; Co. Litt. 122; 3 Bla. 
 Com. 237; 1 Saund. 546; 4 Term 71. 
 
 DISTURBANCE OF FRANCHISE. Any 
 acts done whereby the owner of a franchise 
 has his property damnified or the profits 
 arising thence diminished. The remedy for 
 such disturbance is a b] i n the 
 
 case; Cro. Kliz. r, and. 1136; 3 
 
 Sharsw. Bla. Com. 2 Mfg. Co., 
 
 II. 438. 
 
 Equity will grant an injunction against 
 disturbance of a franchise in certain • 
 Mohawk Bridge Co. v. It. Co.. 6 Paij 
 (X. Y.) 554; Georgetown v. Canal Co., 12 
 Pet. (U. S.) 91, 9 L. Ed. 1012; President 
 of Delaware ft M. R. Co. V. Stump, S G. ft 
 J. (Md.) 479, 20 Am. Dec. 561. 
 
 DISTURBANCE OF PATRONAGE. The 
 hindrance or obstruction of the patron to 
 present his clerk to a henefice. 3 Bla. 
 242. The principal remedy was a writ of 
 right of advowson; and th< also 
 
 writs of darrein presentment and of quare 
 impedit Co. 2d Inst. 355; Tit.-h. N. B. 31. 
 
 DISTURBANCE OF PUBLIC WORSHIP. 
 The Interference with ti 
 ligious assemblies has been des xibed as dis- 
 turbance, and in Bome of the states statutes 
 have been passed to meet the off'' 
 
 i. 364 : Wall v. Lee, 34 X. Y. 
 mi ; Cockreham v. State, 7 Humph, i ] 
 11; Owen v. Henman. 1 W. ft 8. (Pa.) 548, 
 ::t Am. Dec. 181 : Taffe v. State, 90 Ga. 459, 
 
 16 S. B. '-'•'!; State v. Karnes. 51 Mo. App. 
 
 293; WiUJ south. 
 
 743 ; Ball v. State, ,; T Miss. I 58, ~ Soul 
 
 It is not necessary to constitute the of- 
 fence that the congregation shall he actually
 
 DISTURBANCE OF PUBLIC WORSHIP 898 
 
 DIVERSION 
 
 engaged in acts of religious worship at the 
 time of the disturbance, but it is sufficient 
 if they are assembled for the purpose of 
 worship; State v. Ramsay, 78 N. C. 448; 
 State v. Lusk, 68 Ind. 264. 
 
 To support a conviction for disturbing pub- 
 lic worship, the evidence must show a wil- 
 ful disturbance; Prucell v. State, (Tex.) 19 
 S. W. 605 ; Richardson v. State, 5 Tex. App. 
 470; Lancaster v. State, 53 Ala. 398, 25 Am. 
 Rep. 625; State v. Lusk, 68 Ind. 264; State 
 v. Bryson, 82 N. C. 576. 
 
 A Christmas festival is not a religious as- 
 sembly ; Layne v. State, 4 Lea (Tenn.) 199; 
 nor is a church business meeting ; Wood v. 
 State, 11 Tex. App. 318. A Sunday school 
 is not divine service ; Appeal of Gass, 73 Pa. 
 39, 13 Am. Rep. 726. 
 
 DISTURBANCE OF TENURE. Breaking 
 the connection which subsists between lord 
 and tenant. 3 Bla. Com. 242 ; 2 Steph. Com. 
 513. 
 
 DISTURBANCE OF WAYS. This hap- 
 pens where a person who hath a right of 
 way over another's ground by grant or pre- 
 scription is obstructed by enclosures or oth- 
 er obstacles, or by ploughing across it, by 
 which means he cannot enjoy his right of 
 way, or at least in so commodious a manner 
 as he might have done ; 3 Bla. Com. 242 ; 
 Pope v. Devereaux, 5 Gray (Mass.) 409; 
 McTavish v. Carroll, 7 Md. 352, 61 Am. Dec. 
 353; Shroder v. Brenneman, 23 Pa. 34S; 
 Okeson v. Patterson, 29 Pa. 22. 
 
 DITCH. The words "ditch" and "drain" 
 have no technical or exact meaning. They 
 both may mean a hollow place in the ground, 
 natural or artificial, where water is collected 
 or passes off. Goldthwait v. Inhabitants of 
 East Bridgewater, 5 Gray (Mass.) 64. See 
 Easement ; Drain. 
 
 DIVERSION. A turning aside or altering 
 the natural course of a thing. The term is 
 chiefly applied to the unauthorized changing 
 the course of a water-course to the prejudice 
 of a lower proprietor. Rap. & Lawr. L. Diet. 
 See Parker v. Griswold, 17 Conn. 299, 42 Am. 
 Dec. 739 ; 6 Price 1. 
 
 One who has a natural gas well on his 
 place may explode nitroglycerine therein for 
 the purpose of increasing the flow, though 
 it has the effect of drawing the gas from the 
 land of another; Greenfield Gas. Co. v. Gas 
 Co., 131 Ind. 599, 31 N. E. 61. 
 
 The owner of land through which flows a 
 stream of water, may recover damages from 
 one who diverts the water, for any actual 
 injury suffered therefrom in the enjoyment 
 of his land; Clark v. R. Co., 145 Pa. 43S, 
 22 Atl. 989, 27 Am. St. Rep. 710; Case v. 
 Hoffman, 84 Wis. 438, 54 N. W. 793, 20 L. 
 R. A. 40, 36 Am. St. Rep. 937. The fact 
 that one diverts water maliciously is of no 
 importance in determining whether a legal 
 right of plaintiff has been violated; Paine v. 
 
 Chandler, 134 N. Y. 3S5, 32 N. E. 18, 19 L. 
 R. A. 99. See Riparian Proprietors ; Water- 
 Course ; Gas ; Oil. 
 
 DIVERSITY OF PERSON. The plea of a 
 prisoner in bar of execution that he is not 
 the person convicted. 4 Steph. Com. 36S ; 
 Moz. & W. Law Diet. 
 
 D I VERSO INTUITU. From a different 
 view or point of view ; with a different view, 
 design, or purpose ; by a different course or 
 process. 1 W. Bla. S9; 9 East 311; D'Wolf 
 v. Rabaud, 1 Pet. (U. S.) 500, 7 L. Ed. 227; 
 4 Kent, Com. 211 (b). 
 
 DIVEST. See Devest. 
 
 DIVIDED COURT. See Precedent. 
 
 DIVIDEND. A portion of the principal 
 or profits divided among several owners of a 
 thing. Williston v. R. Co., 13 Allen (Mass.) 
 400; Taft v. R. Co., 8 R. I. 310, 5 Am. Rep. 
 575 ; Attorney General v. Bank, 21 N. C. 545 ; 
 Cary v. Sav. Union, 22 Wall. (U. S.) 38, 22 
 L. Ed. 779. See Rose v. Barclay, 191 Pa. 
 594, 43 Atl. 385, 45 L. R, A. 392. 
 
 As confined to corporations it is "that por- 
 tion of the profits and surplus funds of the 
 corporation which has been actually set 
 apart by a valid resolution of the board of 
 directors, or by the shareholders at a corpo- 
 rate meeting, for distribution among the 
 shareholders according to their respective in- 
 terests, in such a sense as to become segre- 
 gated from the property of the corporation, 
 and to become the property of the share- 
 holders distributively." 2 Thomp. Corp. § 
 2126; Mobile & O. R. Co. v. Tennessee, 153 
 U. S. 486, 14 Sup. Ct. 968, 38 L. Ed. 793. 
 
 In the commonest use of the term divi- 
 dends are a sum which a corporation sets 
 apart from its profits to be divided among 
 its members. Lockhart v. Van Alstyne, 31 
 Mich. 76, 18 Am. Rep. 156; which, for the 
 purpose of declaring a dividend, consist of 
 the excess of its cash and other property on 
 hand over its liabilities ; Hubbard v. Weare, 
 79 la. 078, 44 N. W. 915. 
 
 Dividends cannot usually be paid out of 
 the capital but only from the profits. The 
 former is a trust fund for the stockholders ; 
 2 Thomp. Corp. § 2152 ; which each of them 
 is entitled to have preserved intact; Slay- 
 den v. Coal Co., 25 Mo. App. 439; but this 
 principle does not apply when the capital 
 from its nature is liable to waste and de- 
 preciation, as in case of companies to work 
 a mine or a patent; 41 Ch. Div. 1. 
 
 Where dividends are required to be de- 
 clared out of profits merely of a railroad 
 company, the rule for ascertaining the prof- 
 its is to exclude from consideration all debts 
 other than what are commonly understood 
 by the term funded debts, but to treat as 
 deductions debts incurred and due for en- 
 gines, rails, and the like, which should and 
 would have been paid at the time if the 
 funds had been in hand and are necessary
 
 DIVIDEND 
 
 809 
 
 DIVE 
 
 deductions from the property; 29 Beav. 272; 
 and as to what are net earnings In the sense 
 of surplus profits and therefore susceptible 
 of definition, see Union Pac. R. Co. v. I . B., 
 99 U. S. 420, 25 L. Ed. 274 ; 99 Am. Dec. 762, 
 note; Excelsior Water & .Mining Co. v. 
 Pierce, 90 Cal. 131, 27 Pac, 44 
 
 In England it was held that dividends 
 must be payable in money; L. R. 3 I I [, 
 517; and it has been said there that the 
 whole of the profits of a corporation must 
 be divided periodically; L. R. 1 Ch. 494; but 
 this is perhaps too broadly stated; Green's 
 Brice, Ultra Vires 201. Neither of the above 
 rules obtains in America: here Stock and 
 scrip dividends are very common; Leland v. 
 Ilayden. 102 -Muss. 542; Lord v. Brooks, 52 
 N. H. 7i'; Howell v. Ry. Co., r,i Barb. (N. v.i 
 378; State v. R. Co., 6 Gill (Md.) 363; Mo- 
 raw. Priv. Corp. 448; and in the absence of 
 statutory restriction are lawful; Williams v. 
 Telegraph Co., 93 X. Y. 162; Rand v. Hub- 
 bell, lir> Mass. 471, 15 Am. Hep. 121; Com. 
 v. Ry. Co., 74 Pa. 83; and bonds may be is- 
 sued to the stockholders of a railroad corpo- 
 ration in place of cash, as the dividends rep- 
 resenting earnings appropriated to the con- 
 struction account, and these dividends, hav- 
 ing been duly earned, may be declared for 
 four years at once instead of each year; 
 Wood v. Lary, 47 Hun (X. Y.) 550. 
 
 The declaration of dividends is within the 
 implied scope of the authority of the di- 
 rectors, and unless controlled by the ait ion 
 of the corporation itself they have authority, 
 in their sole discretion, to declare dividends 
 and to fix the time and place of payment 
 within the limits of reason and good faith 
 with the stockholders; State v. Bank, G La. 
 745; Union Pac. Ry. Co. v. U. S., 90 U. S. 
 420, 25 L. Ed. 274; Minot v. Paine, 99 Mass. 
 101, 96 Am. Dec. 705; Park v. Locomotive 
 Works, 40 X. J. Eq. 114, 3 Atl. 762; 
 sior Water & Mining Co. v. Pierce, 90 Cai 
 131, 27 Pac. 44; Williams v. Telegraph Co., 
 93 X. Y. 1G2; and as to time and place; 
 King v. R. Co., 29 N. J. L. 82. See Belfast 
 & M. L. R. Co. v. City of Belfast, 77 Me. 
 445, 1 Atl. 362; Xew York. L. B. & W. R. 
 Co. v. Nickals, 119 U. S. 296, 7 Sup. Ct 209, 
 30 L. Ed. 363. 
 
 Where stockholders, including directors. 
 met and agreed to a division of profits, but 
 without formally declaring a dividend, their 
 action was equivalent to such declaration; 
 Spencer v. Lowe, 198 Fed. 961, 117 <\ C. A. 
 497. Generally courts will not Interfere In 
 behalf of a common stockholder to compel 
 the declaration of a dividend except In case 
 
 Of fraud or abuse Of discretion; Howell v. 
 
 R. Co., 51 Barb. (N. Y.) 378; Pratt v. Pratt, 
 
 Read & Co., 33 Conn. 446; Smith v. Mfg. 
 Co., 29 Ala. 503; Hunter v. Roberts, Throp 
 
 & Co., 83 Mich. 63, 47 X. W. 131; nor will 
 equity restrain the declaration of a dividend 
 where the propriety of declaring one is fair- 
 ly within the discretion of the directors; 41 
 
 Ch. Imv. 1. Divid may b«» applied by 
 
 the corporation 
 
 holder where I off would ex- 
 
 ist with respect to other . Ex parte 
 
 Winsor, 3 Sto. Ill, 
 but this right e where tl. 
 
 has been declared ami 
 holder cannot refuse to paj Intei 
 the corporation in antieipat. div- 
 
 idend will be declared ; Ely v. E 
 Clarke, Ch. (N. Y.) 35L it 1 
 t .,t unpaid dividends are 
 poration available for creditors iii <■ 
 
 olvency ; < lurry v. Wood wa i 
 305; but this view is disapproved ai 
 clared unsound; 2 Thomp. I 
 Dividends Improperly declared may , 
 called; id. S 2135; and even if paid, it baa 
 been held that they may be reclai 
 ington Life, Fire & Marine 1 1 
 it B. Moii. (Ky.) 412, 66 Am. Dec 166; but 
 this decision Is doubted; 2 Thomp. Corp. 51 
 2135; although approved in a case which did 
 not require the court to go bo far bnl 
 to hold that the dividend, not having 
 paid, was not collectible; Slayden v. Cuai 
 Co., 25 Mo. A pp. 439. 
 
 Rut where the directors, in fraud of a 
 stockholder, set aside all the earning 
 working capital, equity required the direc- 
 tors to declare a dividend out of tie 
 earnings not needed for the corp< 
 
 Lawton v. Bedel] (N. J.) 71 Atl 
 Equity will order a surplus of earni: 
 a life insurance company to be distri 
 to stockholders, if not I 
 
 1 and the directors have arbitrarily or 
 
 unreasonably withheld them; Blanchard v. 
 .... 7N X. .[. Eq. iVI. 79 A; 
 
 When the fact that a dividend has been 
 voted by the directors is not made public or 
 communicated to the stockholders, and no 
 fund is set apart for payment, the vote may 
 be rescinded ; Ford - 
 
 84, 32 X. E. 1036, 20 E. R, A. 65, 35 Am. 
 St. Rep. 462, There can be do discrimina- 
 tion among stockholders of the - 
 in respect to dividends, but if one SCO< khold- 
 er is discriminated against, he cannot re- 
 cover his share ratably from 1 
 until at least he has established his right 
 as a cr 1 1 tor of the company and put I 
 his remedy against it: Peckham v. Van 
 Wagenen, 83 N. v. K), 38 Am, Rep. 392. 
 
 a stockholder cannot recover the profits 
 made by a corporation until a dividend has 
 been declared: Minot v. Pain.-. . 101, 
 
 . . 
 31 Mich. 7s. is Ain. Rep. L56; Api 1 
 
 83 Pa. 269, 24 Am. Rep 1 Iwin 
 
 v. Hardy, 57 Me. 143, 99 Am. Dec 758; Bev- 
 eridge v. R. Co., 112 X. Y. 1, 19 X. 1 
 '2 E. R. A. 648; but after a dividend has been 
 declared, and a demand rnadi by a 
 
 ■ i,ler, he may sue in assumps I 
 the amount due him: Jones V. R. Co., 57 X. 
 Y. I'M; Brown v. Xav. Co., 4'j Pa. 270; and
 
 DIVIDEND 
 
 900 
 
 DIVIDEND 
 
 a stockholder has beon allowed to follow the 
 amount of his dividend into the hands of 
 the receiver of the company ; In re Le Blanc, 
 14 Hun 8 ; Beers v. Spring Co., 42 Conn. 17 ; 
 the declaration of the dividend is an admis- 
 sion of indebtedness in money ; Ehle v. Bank, 
 24 N. Y. 548; and it is no defence to show 
 that the earnings were received in other prop- 
 erty ; id. The earnings of the corporation 
 are part of the corporate property, and, until 
 separated from the general mass, the inter- 
 est of the stockholders therein passes with 
 the transfer of the stock; and this is irre- 
 spective of the time during which earnings 
 have accrued. By the declaration of a divi- 
 dend, however, the earnings, to the extent 
 declared, are separated from the general 
 mass and are appropriated to the then stock- 
 holders, who become creditors of the corpo- 
 ration for the amount of the dividend. The 
 earnings represented by the dividend, al- 
 though the fruit of the general property of 
 the company, are no longer represented by 
 the stock, but become a debt of the com- 
 pany to the individual who, at the time of 
 the declaration of the dividend, was the 
 owner of the stock. That the dividend is 
 payable at a future date makes no distinc- 
 tion in the right. The debt exists from the 
 time of the declaration of the dividend, 
 though payment be postponed. This right 
 could of course be transferred, by special 
 agreement, with the stock, but not other- 
 wise. The dividend would not pass as an 
 incident of the stock ; Wheeler v. Sleigh Co., 
 39 Fed. 347; Clark v. Campbell, 23 Utah 
 569, 65 Pac. 496, 54 L. B. A. 508, 90 Am. 
 St. Bep. 716. 
 
 Mandamus will not lie to compel the pay- 
 ment of dividends declared by a private cor- 
 poration ; Van Norman v. Mfg. Co., 41 Mich. 
 166, 49 N. W. 925. 
 
 Dividends must be so declared as to give 
 each stockholder his proportional share of 
 profits; Jones v. B. B. Co., 57 N. Y. 196; 
 Byder v. B. Co., 13 111. 516 ; L. B. 3 Ch. 262 ; 
 Atlantic & O. Telegraph Co. v. Com., 3 
 Brewst (Pa.) 366; and if one person is ex- 
 cepted, he may sue for his dividends, for 
 the reason that such exception is void ; Hill 
 v. Coal & Min. Co. (Mo.) 21 S. W. 508. They 
 can properly be declared only out of profits 
 actually earned; and when improperly de- 
 clared and paid, they may be recovered 
 back; Comstock v. Drohan, 71 N. Y. 9. 
 
 It is said that in Great Britain it is well 
 settled that where a corporation, whether 
 authorized or unauthorized by law to in- 
 crease its capital stock, accumulates and 
 invests part of its earnings, and afterwards 
 apportions them among its shareholders as 
 capital, the amount so apportioned must be 
 deemed an accretion to the capital of each 
 share, the income of which only is payable 
 to a tenant for life ; Gibbons v. Mahon, 136 
 U. S. 549, 10 Sup. Ct 1057, 34 L. Ed. 525. 
 
 Where a company, by a majority of tn» 
 votes, has decided not to divide the money, 
 but to turn it all into capital, it must be 
 held capital from that time ; L. B. 29 Ch. 
 Div. 035; L. B. 12 App. Cas. 385. The 
 same principle was established in Massachu- 
 setts before the last cited English case had 
 come before the courts of England; Atkins 
 v. Albree, 12 Allen (Mass.) 359; Minot v. 
 Paine, 99 Mass. 101, 96 Am. Dec. 705; Da- 
 land v. Williams, 101 Mass. 571; Leland v. 
 Hayden, 102 Mass. 542; Band v. Hubbell, 
 115 Mass. 461, 15 Am. Bep. 121. And in 
 Connecticut, Bhode Island and Maine a divi- 
 dend of new shares representing accumulat- 
 ed earnings is held to be capital and not in- 
 come; Brinley v. Grou, 50 Conn. 66, 47 Am. 
 Rep. 618; Boardman v. Mansfield, 79 Conn. 
 634, 66 Atl. 169, 12 L. B. A. (N. S.) 793, 118 
 Am. St. Bep. 178; In re Brown, 14 B. I. 
 371, 51 Am. Bep. 397 ; Bichardson v. Bichard- 
 son, 75 Me. 570, 46 Am. Bep. 428. A stock 
 dividend is held not to distribute property ; 
 Kalbach v. Clark, 133 la. 215, 110 N. W. 
 599, 12 L. B. A. (N. S.) 801, 12 Ann. Cas. 
 647; but simply dilutes the shares as they 
 existed before ; Williams v. Telegraph Co., 
 93 N. Y. 189. In In re Kernochan, 104 N. 
 Y. 618, 11 N. E. 149, the court applied the 
 same rules as between the remainderman 
 and the person entitled for life to the in- 
 come of shares bequeathed in trust, reject- 
 ed the test of determining what part of a 
 cash dividend should be deemed principal 
 and what part income, by ascertaining how 
 much was earned before and how much aft- 
 er the death of the testator, approved the 
 English doctrine above cited, and said that 
 from the shares in question no income could 
 accrue, no profit arise to the holder until 
 declared by the company, and that act should 
 be deemed to have been in the mind of the 
 testator, and not the earnings or profits as 
 ascertained by a third person, or a court 
 upon an investigation of the business of the 
 company. 
 
 Where the votes of the corporation left 
 the stockholders at liberty to take the cash 
 dividend or to take new stock and treat the 
 dividend as payment for it, it cannot be 
 said to be a stock dividend; Davis v. Jack- 
 son, 152 Mass. 58, 25 N. E. 21, 23 Am. St 
 Bep. 801. In Lord v. Brooks, 52 N. H. 72, 
 it was held that the surplus earnings of a 
 corporation that were not divided at the 
 date of a trust deed belonged to the corpus 
 of the trust as a part of the capital of the 
 trust fund, and that dividends declared out 
 of surplus earnings accrued since the date 
 of the trust deed were income for the life 
 tenant. 
 
 Stock which a corporation has acquired 
 from its stockholder in payment of a debt, 
 and which it distributes among its remain- 
 ing stockbolders as surplus earnings, goes 
 to the life tenant, and not to the remainder-
 
 DIVI1 
 
 001 
 
 Divn.j.xb 
 
 man; Green v. Bissell, 79 Conn. 547, 65 Atl. 
 105G, S L. R. A. (N. S.) 1011, 118 Am. St. 
 Rep. 156, 8 Ann. Cas. 2S7. 
 
 In Holbrook v. Ilolbrook, 74 N. B. 201, 86 
 Atl. 124, 12 L. R. A. (N. S.) 70S, it is said 
 the method to be pursued is to inquire into 
 the actual nature and source of the dividend. 
 If it is found to represent surplus earnings 
 accrued since the creation of the trust, it is 
 
 income and to the life tenant. If it 
 
 is found to n at earnings accrued prior 
 
 to the creation of the trust, it is capital and 
 goes to the corpus of the trust And if it is 
 found in whole or in part to represent the 
 increase in value of the corporate plant and 
 business, whether it took place before or 
 after the trust was created, it is also to 
 that extent capital, citing Jones v. Railroad, 
 67 N. H. 234, 30 Atl. 614, 68 Am. St. Rep. 
 650; Van Blarcom v. Dager, 31 X. J. Bq. 783; 
 Hite's Devisees v. Hite's Ex'r. 03 Ky. 257, 
 
 20 S. W. 778, 19 L. R. A. 173. 40 Am. St. 
 Rep. 189. As the court in making the in- 
 quiry concerns itself with the substance of 
 the transaction, and not the form in which 
 the corporation has seen fit to clothe it, the 
 fact that a dividend is distributed in cash or 
 stock is of little, if of any. importance in de- 
 termining whether it is capital or income. 
 The inquiry is largely one of fact, and the 
 dividend is capital or income as the fact 
 discloses into which of the above enumerated 
 classes it falls. That it is said is the logic 
 of the decision of the case in Lord v. Brooks, 
 52 N. H. 72, supra, and to be supported by 
 the great weight of authority in this coun- 
 try; McLouth v. Hunt, 154 N. Y. 179, 48 
 N. E. 548, 39 L. R. A. 230; Ashhurst v. 
 Field's Adm'r, 26 N. J. Eq. 1; Appeal of 
 Earp, 28 Pa. 368; Smith's Estate. 140 Pa. 
 344, 21 Atl. 438, 23 Am. St. Rep. 237 ; Thom- 
 as v. Gregg, 7S Md. 545, 28 Atl. 565, H Am. 
 St. Rep. 310; Hite's Devisees v. Hite's Ex'r. 
 93 Ky. 257, 20 S. W. 778, 19 L. R. A. 173, 40 
 Am. St. Rep. 189; Pritchitt v. Trust Co., 96 
 Tenn. 472, 36 S. W. 10G4, 33 L. R. A. S56. 
 
 In Pennsylvania it is held that when 
 stock is bequeathed in trust for the use of 
 one for life with remainder over, surplus 
 profits accumulated during the test 
 life, but not divided until after his death, 
 belong to the corpus of his estate; while 
 dividends of earnings made after his death, 
 whether in cash, stock, or scrip, go to the 
 tenant for life; Smith's Estate, 140 Pa. 344, 
 
 21 Atl. 438, 23 Am. St. Rep. 237. In Appeal 
 of Earp, '-8 Pa. 36S, the earnings from which 
 a stock dividend was declared had accumu- 
 lated partly before and partly after the 
 death of the testator, and the court held 
 that such dividend should be apportioned be- 
 tween the corpus and income in the propor- 
 tion that the value of the stock at the tes- 
 tator's death bore to the value of the stock, 
 including the new shares, after the dividend. 
 The principle of apportionment of extraor- 
 dinary dividends, earned partly before and 
 
 partly after the Inception of the life ee 
 has also been recognized and applied; Thom- 
 as v. Gregg, 78 Ind. 
 
 St Eep. 310 ; Van 1 1 n a v. < X. J. 
 
 Eq. 178, 07 Am. . >; Pratt i , 
 
 38 X. J. Bq. 541. In Hawaii 
 
 er discussing the radons rul< d the 
 
 doctrine which divi- 
 
 dends alike, holding that only bo m . 
 the nev allotted to the trusl 
 
 of the par value of the st< 
 should be apportioned to the life b 
 the rest Should be held as part of tl. 
 pus; 12 Haw. 309. 
 
 The value of a right to subscribe to addi- 
 tional Btock, which depends on the earnings 
 of the corporation Bince the creation of a 
 trust for the benefit of a lif.- tenant and r> 
 mainderman, is income; Bolbrook v. Hol- 
 brook, 74 X. H. 201, 66 Atl. 124, 12 L. R. A. 
 768. 
 
 In England it was at first held that all 
 extra dividends belonged to the remainder- 
 man ; 10 Ves. 185 : 4 Ves. S00 ; but the I 
 of Lords finally determined that stock divi- 
 dends should pass to the remainderman and 
 cash dividends to the life tenant, except in 
 the case of companies which could not legal- 
 ly increase their capital stock, and extra 
 dividends should go to the remainderman ; 
 12 App. Cas. 385. 
 
 When arising under a will, the testator's 
 intention must be ascertained, and this is 
 ordinarily that the life tenant shall have 
 the income and bonuses declared by the com- 
 pany ; [1893] :: Oh. 337 (C. A.), follow] 
 App. Cas. 385, where, upon an examination 
 of many authorities, it was held that B re- 
 served fund set apart out of profits and aft- 
 erwards distributed as a bonus dividend, to 
 be applied by Stockholders in part payment 
 of a new allotment of shares partly paid up. 
 was held capital. Bramwell, L. J., said he 
 could deduce no principle from the authori- 
 ties. 
 
 A note in :2t; iiarv. L. Rev. 77, classifies the 
 cases as follows: In Massachusetts and a 
 number of cases following the rule of that 
 state, it was held that stock dividends 
 to the remaindermen and cash dividends 
 from earnings to the life tenant ; Lyman v. 
 Pratt. 183 Mass. 58, 66 N. B. 123; Boardman 
 v. Mansfield, 79 Conn. 634, 68 AtL 169; De- 
 Koven v. Also].. 205 111. 309, 88 N 
 L. R. A. 587; Millcn v. Cuerrard. 6 
 1 1 Am. Rep. 720; Bryan v. Alkin (Di 
 Atl. 817. In Pennsylvania and - 
 lowing the same rn arts have dis- 
 
 tinguished between the life tenant and re- 
 mainderman with respect to dividends rep- 
 resenting earnings I 
 
 Hon Of the trust fund: Earp's Appeal, 28 Pa. 
 368; Van D ren v. Olden, 19 X. .1. Eq. 17G, 
 <»7 Am. i>' i aomas v. Ffl lid. 
 
 545, -- . 1 1 Am. S 
 
 lein v. Soehnlein, 146 Wis. 330, 131 X. w. 
 Miller v. Payne, 150 Wis. 35-1, 136 X.
 
 DIVIDEND 
 
 902 
 
 DIVISIBLE 
 
 W. 811 ; Pritchitt v. Trust Co., 96 Tenn. 472, 
 36 S. W. 1064, 33 L. R. A. 856. 
 
 Another rule adopted in New York and 
 Kentucky gives the dividends to the life ten- 
 ant, whether they be of stock or cash repre- 
 senting accumulated earnings; McLouth v. 
 Hunt, 154 N. Y. 179, 48 N. E. 54S, 39 L. R. 
 A. 230; Kite's Devisees v. Hite's Ex'rs, 93 
 Ky. 257, 20 S. W. 778, 19 L. R. A. 173, 40 
 Am. St. Rep. 189. Other cases follow so 
 much of the Massachusetts rule as treats 
 stock dividends as part of the principal; 
 Gibbons v. Mahon, 136 U. S. 549, 10 Sup. Ct. 
 1057, 34 L. Ed. 525; In re Brown, 14 R. I. 
 371, 51 Am. Rep. 397; Kaufman v. Woolen 
 Mills Co., 93 Va. 673, 25 S. E. 1003. The con- 
 clusion is reached by the writer (26 Harv. 
 L. Rev. 77) that while all the rules stated 
 are open to objections, that of the Massachu- 
 setts courts is the most workable. 
 
 See 42 Amer. L. Rev. 25, for a discussion 
 of the subject. 
 
 As used in the United States Corporation 
 Tax Act (August 5, 1909), the so-called divi- 
 dends of a mutual life insurance company 
 doing business on the level premium plan, 
 consisting merely of the portion of the load- 
 ing of a premium charged in excess of the 
 cost of insurance and returned annually aft- 
 er the first year to the policy holders to 
 reduce their subsequent premiums, are not 
 income and therefore not taxable under that 
 act ; Mutual Benefit Life Ins. Co. v. Herold, 
 198 Fed. 199 (an instructive case on the prac- 
 tice of life insurance companies in this re- 
 spect) ; to the same effect, Mutual Benefit 
 Life Ins. Co. v. Com., 128 Ky. 174, 107 S. W. 
 802 ; Fuller v. Ins. Co., 70 Conn. 647, 41 Atl. 
 4 ; L. R. 14 App. Cas. 381. 
 
 In another sense, according to some old 
 authorities, dividend signifies one part of 
 an indenture. 
 
 DIVINE RIGHT OF KINGS. This theory 
 "was in its origin directed, not against popu- 
 lar liberty, but against papal and ecclesias- 
 tical claims to supremacy in temporal as 
 well as spiritual affairs." Figgis, "The The- 
 ory of the Divine Right of Kings." 
 
 DIVINE SERVICE. The name of a feudal 
 tenure, by which the tenants were obliged 
 to do some special divine services in cer- 
 tain, as to sing so many masses, etc. 2 Bla. 
 Com. 102 ; Mozl. & W. Diet. 
 
 In its modern use the term does not in- 
 clude Sunday schools; Appeal of Gass, 73 
 Pa. 39, 13 Am. Rep. 726. 
 
 D I VISA. In Old English. A device, award, 
 or decree ; also a devise ; bounds or limits of 
 division of a parish or farm. Also a court 
 held on the boundary, in order to settle dis- 
 putes of the tenants. Wharton. 
 
 DIVISIBLE. That which is susceptible of 
 being divided. 
 
 A contract cannot, in general, be divided 
 in such a manner that an action may be 
 
 brought, or a right accrue, on a part of it; 
 Shaw v. Turnpike Co., 2 Pen. & W. (Pa.) 
 454. But some contracts are susceptible of 
 division : as, when a reversioner sells a part 
 of the reversion to one man and a part to 
 another, each shall have an action for his 
 share of the rent which may accrue on a 
 contract to pay a particular rent to the re- 
 versioner; Thomas v. Smith, 3 Whart. (Pa.) 
 404. See Apportionment. But when it is to 
 do several things at several times, an action 
 will lie upon every default; Badger v. Tit- 
 comb, 15 Pick. (Mass.) 409, 26 Am. Dec. 611. 
 See Aldrich v. Fox, 1 Greenl. (Me.) 316; 
 Symmes v. Frazier, 6 Mass. 344, 4 Am. Dec. 
 142 ; Performance. 
 
 DIVISION. In English Law. A particu- 
 lar and ascertained part of a county. In 
 Lincolnshire division means what riding does 
 in Yorkshire. 
 
 DIVISION OF OPINION. Disagreement 
 among those called upon to decide a matter. 
 When, in a company or society, the par- 
 ties having a right to vote are so divided 
 that there is not a plurality of the whole in 
 favor of any particular proposition, or when 
 the voters are equally divided, it is said 
 there is division of opinion. The term is 
 especially applied to a disagreement among 
 the judges of a court such that no decision 
 can be rendered upon the matter referred to 
 them. 
 
 When the judges of a court are divided in- 
 to three classes, each holding a different 
 opinion, that class which has the greatest 
 number shall give the judgment: for exam- 
 ple, on a habeas corpus, when a court is com- 
 posed of four judges, and one is for remand- 
 ing the prisoner, another is for discharg- 
 ing him on his own recognizance, and the 
 two others are for discharging him absolute- 
 ly, the judgment will be that he be dis- 
 charged ; Rudyard's Case; Bacon, Abr. Hab- 
 eas Corpus (B 10), Court, 5. 
 
 A certificate under the act of 1891 should 
 contain a proper statement of the facts on 
 which the question of law arises ; the entire 
 record should not be transmitted; Emsheim- 
 er v. New Orleans, 186 U. S. 33, 22 Sup. Ct 
 770, 46 L. Ed. 1042. 
 
 DIVISUM IMPERIUM. A divided juris- 
 diction. Applied e. g. to the jurisdiction 
 or courts of common law and equity over the 
 same subject. 1 Kent 366. 
 
 DIVORCE. The dissolution or partial sus- 
 pension, by law, of the marriage relation. 
 
 The dissolution is termed divorce from the bond 
 of matrimony, or, in the Latin form of the expres- 
 sion, a vinculo matrimonii; the suspension, di- 
 vorce from bed and board, a mensa et thoro. The 
 former divorce puts an end to the marriage ; the 
 later leaves it in full force. The term divorce is 
 sometimes also applied to a sentence of nullity, 
 ■which establishes that a supposed or pretended 
 marriage either never existed at all, or at least was 
 voidable at the election of one or both of the parties. 
 
 The more correct modern usage, however, con- 
 fines the signification of divorce to the dissolution
 
 DIVORCE 
 
 903 
 
 im-'.iRCE 
 
 of a valid marriage. What has been known as a 
 divorce a mensa et thoro may more properly be 
 termed a legal separation. So also a sentence or 
 decree which renders a marriage void ab initio, and 
 bastardizes the issue, should be distinguished from 
 one which is entirely prospective in its operation ; 
 and for that purpose the former may be termed a 
 sentence of nullity. The present article will ac- 
 cordingly be confined to divorce in the strict ac- 
 ceptation of the term. For the other branches of 
 the subject, see Separation a Mensa et ] 
 Nullity of Mahiuage. 
 
 Marriage, being a legal relation, and not 
 (as sometimes supposed) a mere contract, 
 can only be dissolved by legal authority. 
 
 The relation originates in the i 
 the parties, but, once entered Into, it must 
 continue until the death of either busband 
 or wife, unless sooner put an end to by the 
 sovereign power. Jn Maynard v. Hill, 125 
 U. S. 210, 8 Sup. Ct TL 1 :;. 31 L. Ed. 654, It 
 is said that whilst marriage is often termed 
 by text writers and in decisions of courts 
 a civil contract, it is something mere. When 
 the contract to marry is executed by the 
 marriage, a relation between the parties is 
 created which cannot change. Other con- 
 tracts may be modified, restricted, or en- 
 larged, or entirely released upon the consent 
 of the parties, hut not so with marriage. 
 The relation once formed, the law si 
 and holds the parties to various obligations 
 and liabilities. The supreme court then ap- 
 proves the views laid down in Adams v. 
 Palmer, 51 Me.- 483, where it is said that 
 when the contracting parties have entered 
 into the marriage state, they have not so 
 much entered into a contract as into a new 
 relation, the rights, duties, and obligations of 
 which rest not upon their agri ement, but up- 
 on the general law of the state, statutory or 
 common ; they are of law, not of contract. 
 It was of contract that the relation should 
 be established, but being established the pow- 
 er of the parties as to its extent or dura- 
 tion is at an end. Their rights under it are 
 determined by the will of the sovereign as 
 evidenced by the law. They can neither in- 
 modified nor changed by any agreement of 
 the parties. It is a relation for life and 
 the parties cannot terminate it at any short- 
 er period by virtue of any contract they may 
 make. "Marriage has been said to he some- 
 thing more than a mere contract, religious 
 or civil; to be an institution"; p. K. i p. & 
 D. 130. In England, until the mill. He of the 
 last century no authority existed In any 
 of the judicial courts to grant a divorce in 
 the strict sense of the term. The subject ot 
 marriage and divorce generally belonged ex- 
 clusively to the various ecclesiastical courts; 
 and they were in the constant habit of grant- 
 ing what were termed divorces a mensa tt 
 thoro, for various causes, and of pronounc- 
 ing sentences of nullity; but they had no 
 power to dissolve a marriage, valid and bind- 
 ing in its origin tor causes arising subse- 
 quent to its solemnization. For that pur- 
 pose recourse must be had to parliament; 2 
 
 I:ui,! Macq. Pari. Pr. 470 
 
 (after bavlng first obtained ai 
 decree a mensa et i \ dam- 
 
 agalnst i 
 
 Grim, con. This pi;, 
 Hut in Is.,, a ,-,.,, ; 
 Court for Divorce and M. 
 upon which v. 
 Jurisdiction over matrimonii 
 rested in the various ■ 
 
 and also the jiiii.-di.tion ti.. 
 dsed by parliament in granti: 
 
 present divorce causes axe hoard, in the 
 Brat instance, In the Probate, Dl 
 Admiralty Division of the Higl 
 
 .Justice, whence an appeal lies to the Court 
 of Appeal 
 
 In lie! and there is no divorce a vtn 
 except by act of parliament 
 
 In this country the usage has been various. 
 Formerly it was common tor the various 
 state legislatures, like tl id parlia- 
 
 ment, to grant divorces by Bpecial act This 
 ce Is now much less common. In many 
 slates it has been expressly prohibited by 
 state constitutions ; 1 Bish. Mar. ft I ». | 1171. 
 Such an ad is constitutional; Wright v. 
 Wright's Lessee. 2 Md. 429, 56 Am. D< 
 Berthelemy v. Johnson, 3 B. Monr. I K 
 38 Am. Dec. 179; and does not offend ag 
 the Constitutional provision which forbids 
 laws impairing 'the obligation of eonti 
 even though there was no valid ground for 
 divorce and the wife was not notified; May- 
 nard v. Hill, 125 r. s. 190, s Sup. I 
 
 L. Ed. 654, where the husband was a resident 
 of the territory. See also State V. Duket, 
 90 Wis. 272, 63 X. W. 83, 31 L. K. A. 5 
 Am. st. Rep. 928. Generally, at the pr 
 time, the jurisdiction to grant divons 
 conferred by statute upon courts of equity, 
 or courts possessing equity powers, to I 
 ercised In accordance with the general prin- 
 ciples of equity practice, subject to such 
 modifications as the statute may direct. The 
 action is statutory only; there i.s no common- 
 law jurisdiction over the subject of dlvOI 
 Ackerman v. Ackeruian, 200 N. Y. 7.". 93 \. 
 E. 192. The practice of the English eccle- 
 siastical courts, which is also the foundation 
 of the practice of the new court for dlvoi 
 and matrimonial causes in England, h 
 never been adopted to any considerable ex- 
 tent in this country; but it is said that in 
 some jurisdictions the principles and pra 
 tice of the ecclesiastical courts are followed 
 so Car as they axe applicable to our alten 
 
 condition. ; ,>d in accord with the spirit of 
 our laws; •_• Bish, Mar. ft Div. 460. See Le 
 Barron v. Le Barron, 35 Vt 365; J. <;. v. 
 H. «... 33 Md. k»i. 3 Am. Bep. Ij 
 
 Numerous and difficult questions are con- 
 stantly arising in regard to the validity in 
 of divorces granted by the courts 
 or legislature of another state. The subject 
 is treated in 2 Bish. Mar. Div. and Sep. § 
 128. The learned author there slates the
 
 DIVORCE 
 
 904 
 
 DIVORCE 
 
 following propositions, which he elaborates 
 with great care: First, the tribunals of a 
 country have no jurisdiction over a cause of 
 divorce, wberever the offence may have oc- 
 curred, if neither of the parties has an actual 
 bona fide domicil within its territory; sec- 
 ondly, to entitle the court to take jurisdic- 
 tion, it is sufficient for one of the parties to 
 be domiciled in the country; both need not 
 be, neither need the citation, when the dom- 
 iciled party is plaintiff, be served personally 
 on the defendant, if such personal service 
 cannot be made, but there should be reason- 
 able constructive notice, at least; thirdly, 
 the place where the offence was committed, 
 whether in the country in which the suit is 
 brought or a foreign country, is immaterial; 
 fourthly, the domicil of the parties at the 
 time of the offence committed is of no conse- 
 quence, the jurisdiction depending on tbeir 
 domicil when the proceeding is instituted and 
 the judgment is rendered ; fifthly, it is imma- 
 terial to this question of jurisdiction in what 
 country or under what system of divorce 
 laws the marriage was celebrated; sixthly, 
 without a citation within the reach of pro- 
 cess, or an appearance, the jurisdiction ex- 
 tends only to the status and what depends 
 directly thereon, and not to collateral rights. 
 The doctrine of the first proposition is 
 said not to have been thoroughly established 
 in England; 2 Bish. Mar. D. & Sep. § 43; 
 but it is fully established in America ; Davis 
 v. Com., 13 Bush (Ky.) 318; Hood v. State, 
 56 Ind. 263, 26 Am. Rep. 21 ; State v. Arming- 
 ton, 25 Minn. 29; People v. Smith, 13 Hun 
 (N. Y.) 414; Cast v. Cast, 1 Utah, 112; 
 Smith v. Smith, 43 La. Ann. 1140, 10 South. 
 248; Morgan v. Morgan, 1 Tex. Civ. App. 
 315, 21 S. W. 154; De Meli v. De Meli, 120 
 N. Y. 485, 24 N. E. 996, 17 Am. St. Rep. 652 ; 
 Watkins v. Watkins, 135 Mass. 83; Arrington 
 v. Arrington, 1.02 N. C. 491,. 9 S. E. 200; Ap- 
 peal of Piatt, 80 Pa. 501; Andrews v. An- 
 drews, 188 U. S. 14, 23 Sup. Ct. 237, 47 L. 
 Ed. 366 ; Bell v. Bell, 181 U. S. 175, 21 Sup. 
 Ct. 551, 45 L. Ed. 804; Streitwolf v. Streit- 
 wolf, 181 U. S. 179, 21 Sup. Ct. 553, 45 L. Ed. 
 807. Mr. Bishop maintains the second prop- 
 osition as fully supported on principle and 
 authority; see especially Ditson v. Ditson, 
 4 R. I. 87; Thompson v. State, 28 Ala. 12; 
 Wakefield v. Ives, 35 la. 238; Cheever v. 
 Wilson, 9 Wall. (U. S.) 108, 19 L. Ed. 604; 
 Richards v. Richards, 19 D. C. 431 ; but see 
 People v. Baker, 76 N. Y. 78, 32 Am. Rep. 
 274; Story, Confl. Laws, Redf. ed. As to 
 the third proposition, which is said by the 
 same author to be universal, see Hanberry 
 v. Hanberry, 29 Ala. 719; Clark v. Clark, 8 
 N. H. 21; Holmes v. Holmes, 57 Barb. (N. 
 Y.) 305; Pawling v. Willson, 13 Johns. (N. 
 Y.) 192. The fifth proposition is universally 
 recognized ; see Dorsey v. Dorsey, 7 Watts 
 (Pa.) 349, 32 Am. Dec. 767; Harteau v. 
 Harteau, 14 Pick. (Mass.) 181, 25 Am. Dec. 
 372; Thompson v. State, 28 Ala. 12; Stand- 
 
 ridge v. Standridge, 31 Ga. 223. See, how- 
 ever, 2 CI. & F. 568. 
 
 When both husband and wife are domi- 
 ciled in the state where the divorce is grant- 
 ed, the decree of divorce is without doubt 
 valid everywhere; Leith v. Leith, 39 N. H. 
 38; Harding v. Alden, 9 GreenL (Me.) 140, 
 23 Am. Dec. 549; Hanover v. Turner, 14 
 Mass. 227, 7 Am. Dec. 203; Garner v. Garner, 
 56 Md. 128; Hunt v. Hunt, 72 N. Y. 237, 28 
 Am. Rep. 129; Jones v. Jones, 108 N. Y. 415, 
 15 N. E. 707, 2 Am. St. Rep. 447 ; Arrington 
 v. Arrington, 102 N. C. 491, 9 S. E. 200 ; Hub- 
 bell v. Hubbell, 3 Wis. 664, 62 Am. Dec. 702 ; 
 Cheely v. Clayton, 110 U. S. 701, 4 Sup. Ct. 
 32S, 28 L, Ed. 298; Barrett v. Failing, 111 
 U. S. 524, 4 Sup. Ct. 59S, 28 L. Ed. 505; Roth 
 v. Roth, 104 111. 35, 44 Am. Rep. 81. See L. 
 R. 6 P. D. 35. 
 
 If the court making the decree had juris- 
 diction, it will be held conclusive in other 
 states: In re James' Estate, 99 Cal. 374, 33 
 Pac. 1122, 37 Am St. Rep. 60; People v. 
 Allen, 40 Hun (N. Y.) 611; Hawkins v. 
 Ragsdale, 80 Ky. 353, 44 Am. Rep. 483 ; Shaw 
 v. Shaw, 98 Mass. 158; and jurisdiction will 
 be presumed ; Knowlton v. Knowlton, 155 
 111. 158, 39 N. E. 595 ; unless want of it ap- 
 pears upon the record ; Werner v. Werner, 30 
 111. App. 159: Collins v. Collins, 80 N. Y. 1; 
 Morey v. Morey, 27 Minn. 265, 6 N. W. 783 ; 
 or it may be shown as against the record ; 
 Reed v. Reed, 52 Mich. 117, 17 N. W. 720, 50 
 Am. Rep. 247; Adams v. Adams, 154 Mass. 
 290, 28 N. E. 260, 13 L. R. A. 275. 
 
 As to the right of the wife to acquire a 
 different domicil from that of the husband 
 for the purpose of jurisdiction in a suit for 
 divorce, see Domicil. 
 
 There has been much difference of opinion 
 as to the extra-territorial effect of construc- 
 tive service by publication as between states. 
 If both parties are domiciled within the state 
 the decree is of force in other states; Hood 
 v. Hood, 11 Allen (Mass.) 196, 87 Am. Dec. 
 709 ; Burlen v. Shannon, 115 Mass. 438 ; Hunt 
 v. Hunt, 72 N. Y. 217, 28 Am. Rep. 129 ; but 
 if only one, the decree determines his or her 
 status; Pennoyer v. Neff, 95 U. S. 714, 734, 
 24 L. Ed. 565; Shafer v. Bushnell, 24 Wis. 
 372 ; Adams v. Adams, 154 Mass. 290, 28 N. 
 E. 260, 13 L. R. A. 275. Where the custody 
 of children is involved it is held that con- 
 structive service of summons cannot give 
 jurisdiction where the defendant and the 
 children are out of the state and do not ap- 
 pear, even if their domicil is within the 
 state; De la Montanya v. De la Montanya, 
 112 Cal. 101, 44 Pac. 345, 32 L. R. A. 82, 53 
 Am. St. Rep. 165. 
 
 The view cited from Bishop concerning 
 the extra-territorial operation of the decree 
 under the constitution is held in Harding v. 
 Alden. 9 GreenL (Me.) 140, 23 Am. Dec. 549; 
 Anthony v. Rice, 110 Mo. 233, 19 S. W. 423 ; 
 Chapman v. Chapman, 48 Kan. 636, 29 Pac. 
 1071; Thompson v. Thompson, 91 Ala. 591, 8
 
 DIVORCE 
 
 905 
 
 DIVORCE 
 
 South. 419, 11 L. R. A. 443; the contrary 
 view is taken in Van Inwagen v. Van In- 
 wagen, 86 Mich. 333, 49 N. W. 154; Cook v. 
 Cook, 56 Wis. 195, 14 N. W. 33, 443, 43 Am. 
 Rep. 706 ; Flower v. Flower, 42 N. J. Eq. 152, 
 7 Atl. 669; Doerr v. Forsythe, 50 Ohio St. 
 726, 35 N. E. 1055, 40 Am. St. Rep. 703; Com. 
 v. Steiger, 12 Fa. Co. Ct. 334; [1893 J Prob. 
 89. 
 
 Where the husband removed to Mini 
 and there secured a divorce on constructive 
 service of notice on the wife, who did not 
 appear, it was held in a subsequent suit for 
 divorce by the wife In New York that the 
 Minnesota decree was invalid; Williams v. 
 Williams, 130 N. Y. 193, 29 N. E. 98, 14 L. R. 
 A. 220, 27 Am. St Rep. 517; and to the same 
 effect are O'Dea v. O'Dea, 101 N. Y. 23, 4 N. 
 E. 110 ; People v. Baker, 76 X. Y. 78, 32 Am. 
 Rep. 274. The ground of these cases is that 
 the court rendering the decree under such 
 circumstances, though having jurisdiction to 
 establish the status of the parties in the 
 state where the divorce is granted, yet has 
 no jurisdiction over their status in New 
 York; People v. Baker, 76 N. Y. 78, 32 Am. 
 Rep. 274; Williams v. Williams, 130 N. Y. 
 193, 29 N. E. 98, 14 L. R. A. 220, 27 Am. St. 
 Rep. 517; Lynde v. Lynde, 162 N. Y. 405, 56 
 N. E. 979, 4S L. R. A. 679, 76 Am. St. Rep. 
 332 ; Atherton v. Atherton, 155 N. Y. 129. 49 
 N. E. 933, 40 L. R. A. 291, 63 Am. St. Rep. 
 650, which case was reversed in Atherton v. 
 Atherton, 181 U. S. 155, 21 Sup. Ct. 544, 45 
 L. Ed. 794, where it was held that actual no- 
 tice need not be given to a non-resident de- 
 fendant to bind her by a decree of divorce, if 
 reasonable efforts to give her actual notice 
 as required by the statutes of the state grant- 
 ing the decree are made. The decision in 
 this case was expressly placed on the ground 
 that the suit was brought in the state of the 
 matrimonial domicil. A later case in the su- 
 preme court held that the mere domicil with- 
 in the state of one party to the marriage does 
 not give the courts of that state jurisdiction 
 to render a decree of divorce enforceable in 
 all the other states by virtue of the full faith 
 and credit clause of the federal constitution, 
 against a non-resident who did not appear 
 and was only constructively served with no- 
 tice of the action; Haddock v. Haddock. 201 
 U. S. 502, 26 Sup. Ct. 525, 50 L. Ed. 807, 5 
 Ann. Cas. 1. The court in this case made the 
 following classification: (a) States where 
 the power to decree a divorce is recognized, 
 based upon the mere domicil of the plaintiff, 
 although the decree when rendered will be 
 but operative within the borders of the state, 
 wholly irrespective of any force which may 
 be given such decree in other states. Under 
 this heading all of the states are embraced 
 with the possible exception of Rhode Island, 
 (b) States which decline, even upon prin- 
 ciples of comity, to recognize and enforce as 
 to their own citizens, within their own bor- 
 ders, decrees of divorce rendered in other 
 
 states, when the court rendering the same 
 had jurisdiction over only one of the parties. 
 Under this heading is embraced Massachu- 
 setts, New J.-: dification 
 made by the decision in Felt X. J. 
 Atl. 105, 49 Atl. 1071, 47 U EL A. 
 - ; Am st. Re] 
 
 which, whilst ime effect 
 
 to decrees of divorce r< 
 citizens, in other Btates where the court had 
 jurisdiction of the plaintiff alon 
 place the effect given to such 
 the principle of state comity alone, or make 
 such limitations upon the effect given to such 
 decree as Indubitably establishes that the 
 recognition given is a result merely of state 
 comity. As the greater Includes the 
 this class of course eml r under 
 
 the previous heading. It also includes Ala- 
 bama, Maine, Ohio, and Wisconsin, »d> 
 Cases which, although not actually so d 
 Lag, yet lend themselves to the view that ex 
 parte decrees of divorce rendered in other 
 states would receive recognition by virtue of 
 the due faith and credit clause. And this 
 class embraces Missouri and Rhode Island. 
 
 This analysis and classification, the court 
 said, serve! Ively to demonstrate that 
 
 the limited recognition which is given in 
 most of the Btates to such ex parte decrees 
 of divorce rendered in other states is wholly 
 inconsistent with the theory that such limit- 
 ed recognition is based upon the operation of 
 the full faith and credit clause of the consti- 
 tution, and on the contrary is consistent only 
 with the conception that such limited i 
 uition as is given is based upon state comity. 
 In Haddock v. Haddock, 201 U. S. 5 
 Sup. Ct 525, 50 L. Ed. 867, 5 Ann. Cas. 1, it 
 was held that a decree of divorce rendered 
 in f'onneetieut, where the husband had his 
 domicil, against a non-resident defendant 
 who had never been domiciled in that state, 
 was not. by virtue of the full faith and credit 
 clause, enforceable in all the other Stat 
 
 This decision was by a divided court. In 
 19 Harv. L. Rev. 586, it is elaborately crit- 
 icised, but. the supreme court of Utah 
 (i)ifra), in deciding whether it was justified 
 in granting a divorce, or whether it had ju- 
 risdiction, where the husband had abandoned 
 his matrimonial domicil in that state, was 
 constructively served with notice, ami failed 
 to appear, followed the Haddock <'ase and 
 in a careful analysis of it, to determine if 
 under its ruling the decision of the Utah 
 court would be entitled to full faith and 
 credit, held that it would; that a man 
 hot change the matrimonial domicil by aban- 
 doning his wife and going Into another state 
 to reside, and laid down the following prop- 
 ositions deduced from it: 
 
 Divorces may be granted by state courts, 
 upon constructive service, where statutory 
 Cause and residence co-exist, which become 
 binding upon the parties, the courts of all 
 states, and upon all persons: (1) In cases
 
 DIVORCE 
 
 906 
 
 DIVORCE 
 
 where the parties are residents of the state 
 at the time of the marriage and thus estab- 
 lished a domicil of matrimony in that state 
 and the complaining party continues this 
 domicil up to the time of the action. (2). 
 In all cases where the parties are married 
 out of the state, but come to reside in the 
 state afterwards and recognize the marriage 
 relation within the state and thus establish 
 a domicil of matrimony therein, and the par- 
 ty bringing the action continues this marital 
 domicil up to the time of bringing the action. 
 (3) In all cases where a statutory cause and 
 residence co-exist where personal service is 
 had; State v. Morse, 31 Utah 213, 87 Pac. 
 705, 7 L. R. A. (N. S.) 1127. 
 
 Where tbe full faith and credit clause of 
 the constitution is invoked to compel the en- 
 forcement in one state of a decree rendered 
 in another, the question of the jurisdiction 
 of the court by which the decree was render- 
 ed is open to inquiry, and if there was no 
 jurisdiction either of the subject-matter or 
 of the person of the defendant, the courts of 
 another state are. not required, by virtue of 
 the full faith and credit clause, to enforce 
 such decree; Haddock v. Haddock, 201 id. 
 562, 26 Sup. Ct. 525, 50 L. Ed. 867, 5 Ann. 
 Cas. 1. 
 
 Where substituted service was made upon 
 a non-resident defendant in accordance with 
 the laws of the state granting the divorce, it 
 has been held in New York that the decree 
 of divorce was entitled to full extra-terri- 
 torial validity under the full faith and credit 
 clause of the federal constitution ; North v. 
 North, 47 Misc. 180, 93 N. Y. Supp. 512 ; but 
 the deserted spouse had acquired a bona fide 
 domicil in the state granting the decree. It 
 is said that this case marks an important 
 development in this branch of the New York 
 law (19 Harv. L. Rev. 61), rendered neces- 
 sary by the decision of the supreme court in 
 the Atherton Case, 181 U. S. 155, 21 Sup. Ct. 
 544, 45 L. Ed. 794, reversing 155 N. Y. 129, 
 49 N. E. 933, 40 L. R. A. 291, 63 Am. St. Rep. 
 650, which, following the New York rule that 
 divorce is a proceeding in personam, required 
 that the defendant should be personally serv- 
 ed with process within the jurisdiction of the 
 divorce court. 
 
 A provision in the Georgia Code of 1895, 
 § 5237, that records and judicial proceedings, 
 properly authenticated, shall have such faith 
 and credit given them in every court within 
 the United States as they have by law or 
 usage in the court from which they were 
 taken, was held not to apply to a decree of 
 divorce granted in Kansas based on construc- 
 tive and not actual service -of process on a 
 wife who remained in Georgia ; but, it not 
 appearing that any fraud or concealment was 
 practiced by the husband, the Georgia courts, 
 recognized the validity of the decree on the 
 ground of comity; Joyner v. Joyner, 131 Ga. 
 217, 62 S. E. 182, 18 L. R. A. (N. S.) 647, 
 127 Am. St. Rep. 220. 
 
 A decree of a state court, having jurisdic- 
 tion of the parties, that a divorce granted in 
 anotber state is valid, is held binding in a 
 third state in an attack there upon such de- 
 cree; Bid well v. Bidwell, 139 N. C. 402, 52 
 S. E. 55, 2 L. R. A. (N. S.) 324, 111 Am. St. 
 Rep. 797, where a North Dakota decree was 
 a.s.sailed for lack of jurisdiction and for 
 duress and fraud by the husband in obtain- 
 ing it. The Massachusetts court, in which 
 the wife sued for divorce, held the Dakota 
 decree valid, as did the court in North Car- 
 olina, where after six years she again sued 
 for divorce and it was held that the validity 
 of the North Dakota divorce was established 
 by the Massachusetts court and the plaintiff 
 was estopped by the Massachusetts decree 
 from further questions concerning the one in 
 Dakota. 
 
 In New Jersey it was held that a court of 
 chancery, on a bill filed by a wife, had ju- 
 risdiction to enjoin the husband from prose- 
 cuting a suit for divorce in another state, the 
 jurisdiction of which he had invoked on a 
 false and fraudulent allegation of his resi- 
 dence in that state ; Kempson v. Kempson, 
 58 N. J. Eq. 94, 43 Atl. 97; Kempson v. 
 Kempson, 63 N. J. Eq. 783, 52 Atl. 360, 625, 
 5S L. R. A. 484, 92 Am. St Rep. 682. The 
 defendant in this suit had disregarded the 
 injunction and obtained a final decree of di- 
 vorce. He returned to New Jersey with a 
 new wife, and was committed for contempt 
 The Vice Chancellor reported a decree that 
 the defendant should be fined and be im- 
 prisoned until he should have the decree of 
 the North Dakota court set aside. On ap- 
 peal, the order of the Vice Chancellor was so 
 far modified as to require the defendant to 
 present the truth to the court in North 
 Dakota and in good faith to urge that its de- 
 cree be set aside, as only that court could 
 vacate its decree, and the defendant clearly 
 had no power to insure the result. And see 
 Kittle v. Kittle, 8 Daly (N. Y.) 72, where a 
 defendant in a divorce suit was enjoined 
 from prosecuting a subsequent suit in an- 
 other state for a divorce- which he intended 
 to press to judgment, before the former was 
 terminated, where all the witnesses were in 
 the former state, and the wife was pecun- 
 iarily unable to defend a suit in the other 
 state. 
 
 In several states divorces are by statute 
 inoperative when a person goes out of the 
 state and obtains elsewhere a divorce for a 
 cause not valid in tbe state from which he 
 goes. And in Massachusetts the courts have 
 held invalid decrees, for causes not cogniza- 
 ble in that state, granted in another state, 
 for a divorce when the party went there to 
 procure it; Sewall v. Sewall, 122 Mass. 156, 
 23 Am. Rep. 299; or to annul a marriage; 
 Loker v. Gerald, 157 Mass. 42, 31 N. E. 709, 
 16 L. R. A. 497, 34 Am. St Rep. 252; and 
 such a decree does not violate the full faith 
 and credit clause of the United States con-
 
 DIVORCE 
 
 907 
 
 DIN 
 
 stitution; Andrews v. Andrews, 1S8 U. S. 14, 
 23 Sup. Ct. 237, 47 L. Ed. 3GG ; and such a 
 divorce was held invalid as against public 
 policy, in Wisconsin, where the marriage in 
 another state was considered as having been 
 entered into for the purpose of evading the 
 statute; Lanhani v. Lanham, 136 NVis. 360, 
 117 N. YV. 787, 17 L. R. A. (N. S.) 801, 128 
 Am. St Rep. 1085; but where it was not 
 Shown that the party went to the other state 
 for that purpose and the wife had executed 
 a release to the husband, she was not per- 
 mitted to impeach the decree ; Loud v. Loud, 
 L29 Mass. 14; and so where an appearance 
 was entered in the other state; Elliott v. 
 Wohlfrom, 55 Cal. 3S4 ; or where there has 
 been obtained a bona fide domicil elsewhere; 
 Gregory v. Gregory, 76 Me. 535. 
 
 The supreme court of the United States 
 has no jurisdiction to re-examine the judg- 
 ment of a state court, recognizing as valid 
 the decree of a court of a foreign country an- 
 nulling a marriage; Roth v. Ehman, 107 D. 
 S. 319, 2 Sup. Ct. 312, 27 L. Ed. 499. See 
 Whart. Confl. Laws. 
 
 It was never the practice of the English 
 parliament to grant a divorce for any other 
 cause than adultery ; and it was the gen- 
 eral rule to grant it for simple adultery only 
 when committed by the wife, and upon the 
 application of the husband. To entitle the 
 wife, other circumstances must ordinarily 
 concur, simple adultery committed by the 
 husband not being sufficient; Macq. Pari. Pr. 
 473, The English statute of 20 & 21 Vict. C 
 85, before referred to, prescribes substantial- 
 ly the same rule, — it being provided, § 27, 
 that the husband may apply to have his mar- 
 riage dissolved "on the ground that his wife 
 has, since the celebration thereof, been guilty 
 of adultery," and the wife, "on the ground 
 that, since the celebration thereof, her hus- 
 band has been guilty of incestuous bigamy, 
 or of bigamy with adultery, or of rape, or of 
 sodomy, or bestiality, or of adultery coupled 
 with such cruelty as without adultery would 
 have entitled her to a divorce a mensa ct 
 ilwro, or of adultery coupled with desertion, 
 without reasonable excuse, for two years or 
 upwards." 
 
 In this country the question depends up- 
 on the statutes of the several states, the 
 provisions of which are far from uniform. 
 In some of the states, also, the matter is 
 left wholly or in part to the discretion of 
 the court. See Bish. Mar. D. & Sep.; Weber 
 v. "Weber. 16 Or. 163, 17 Pac. 866. For more 
 specific information, recourse must be had to 
 the statutes of the several states. 
 
 Some of the more important grounds for 
 divorce are: desertion; for a statutory pe- 
 riod; Whitfield v. Whitfield, 89 Ga. 471, 15 
 S. E. 543; Millowitsch v. Millowitsch, n ni. 
 App. 357; Hemenway v. Hemenway, 65 N't. 
 (523, 27 Atl. G09 (see Desertion) ; abandon- 
 ment; McLean v. .lanin, 45 La. Ann. 664, 12 
 South. 747; adultery; Carter v Tarter, 37 
 
 111. App. 21 N\ J. 
 
 I an v. 
 
 .an, HI M 
 v. Day. M la. 221 50 N. W. 97 
 
 Mayhew, 61 Coi Am. 
 
 St. Rep. L95 ; 69 1 
 
 76 Ga. 319 ; Myers v, v 
 
 S. E. 630 I 
 
 drunki 
 
 29 l'ac. SS7, 29 Am. St B 
 
 uier v. De Ln d in 
 
 South. 191 ; Pai i 
 
 L. R, A. (N. S.i Pll. 117 A: 
 Rep. 1054 ; con miction of crii ■ . In 
 stales; incurable insanity, In some - 
 failure to siii>i>t>it; and inxpoi 
 ship, incapacity to enter Into the 
 fraud, duress, etc. 
 
 Fraud in the contra t is an often 
 wrong done I :■ to another, so 
 
 ential conditions of the mar- 
 riage status as practically to destroy that 
 relation, and render the continuance of the 
 bond an injury to the state as well as I 
 parties. The wrong becomes complete on the 
 
 c pletion of the marriage contract It may 
 
 consist in false statements as to ex 
 facte which affect one or more of the • 
 tial purposes of the status. The injured 
 spouse may however condone the Injury and 
 accept the relation or, upon discovery of the 
 wrong, may apply for a div :ld v. 
 
 Gould, 78 Conn. 242, 01 Atl. 604, 2 L, EL A. 
 (N. S.) 531. 
 
 Concealment of epilepsy is a fraud within 
 the meaning of a statute allowing divorce for 
 fraud in the contract of marriage, where the 
 statute forbids an epileptic to marry 
 penalty of imprisonment. Such statute is 
 valid and a marriage In disregard of it 1& 
 voidable, not void; id. 
 
 Where a statute gave a court of chancery 
 sole cognizance to decree a marriage null 
 and void where either of the parties v. 
 the time insane, drunkenness was held not 
 insanity for which a divorce could be grant- 
 ed ; Elzey v. Elzey, l Houst i Del. 
 was an excessive Indulgence In morphln< 
 Bidered a ground for divorce under a statute 
 permitting divorce for habitual drunk-- 
 Youngs v. 3 L30 ill. 230, 22 N. I 
 
 6 i.. R, A. 548, 17 Am. Bt B . Dawson 
 
 v. Dawson. 23 Mo. Lpp. D69 it La said there 
 must be an involuntary tendency t<- 1 • 
 Intoxicated as often as the temptation is 
 presented, which comes from a fixed habit 
 
 acquired from frequenl and i indul- 
 
 ; McBee v. M< Be* . 22 I >r. ! 2 >, 29 Pac 
 887, 29 Am. st. Rep. 613; Burns v. Burns, 13 
 Ela. 369. As an Independent ground, drunk- 
 enness is held in Maryland to furnish no 
 cause for divorce; Shutl v. Shutt, 71 Md. 
 193, 17 Atl. 1024, 17 Am. st. Rep. 519; M 
 v. Mason. 131 Pa. Til. is Atl. 1021 Where 
 the statute Coupled habitual intemperance 
 with Intolerable cruelty as a cause for di- 
 . it was said the habitual use of intoxi-
 
 DIVORCE 
 
 908 
 
 DIVORCE 
 
 eating liquor, though producing excitement, 
 will not justify a divorce. The habit must 
 be so gross as to produce suffering or want 
 in the family to a degree which cannot be 
 reasonably borne. The term caunot well be 
 defined, but must be applied to cases as they 
 arise by inclusion or exclusion, and the ex- 
 istence of the condition in question decided 
 as a matter of fact ; - Dennis v. Dennis, 68 
 Conn. 186, 36 Atl. 34, 34 L. R. A. 449, 57 Am. 
 St. Rep. 95, where it is said : "While there 
 may be, on the one hand, such a clear case of 
 intemperate habits as to justify the court in 
 saying that such and such facts constitute 
 a condition of habitual intemperance, or, on 
 the other hand, such an entire absence of 
 proof, beyond an occasional indulgence in 
 the use of ardent spirits, as to warrant the 
 opposite conclusion, yet the main field of in- 
 quiry and the determination of the question 
 must be submitted to the jury, and the ques- 
 tions on this submission must be decided by 
 them." 
 
 If at the time of the marriage the wife 
 was with child by another man, it may be 
 ground for divorce; Baker v. Baker, 13 Cal. 
 87; or the marriage may be declared null 
 and void ab initio; Reynolds v. Reynolds, 3 
 Allen (Mass.) 605; Carris v. Carris, 24 N. J. 
 Eq. 516; contra, [1897] P. D. 263; but where 
 the wife concealed the fact that she had been 
 previously married and divorced and had a 
 child, it was not such fraud as to entitle the 
 husband to a sentence of nullity; Donnelly 
 v. Strong, 175 Mass. 157, 55 N. E. 892. 
 
 The existence of venereal disease at the 
 time of marriage is held ground for annul- 
 ment; Ryder v. Ryder, 66 Vt. 158, 28 Atl. 
 1029, 44 Am. St. Rep. 833; Smith v. Smith, 
 171 Mass. 404, 50 N. E. 933, 41 L. R. A. 800, 
 68 Am. St. Rep. 440 (where there was refusal 
 to consummate and the court confined its 
 decision to that case, considering it the 
 stronger because of the prompt action) ; and 
 it is also, during marriage, cause for divorce, 
 being put upon the ground that the commu- 
 nication of such disease to the other spouse 
 is extreme cruelty; Cook v. Cook, 32 N. J. 
 Eq. 475; 28 E. L. & Eq. 603, 29 L. J. Mat. 
 57; L. R. 1 P. & D. 702, Curt 678; McMahen 
 v. McMahen, 186 Pa. 485, 40 Atl. 795, 41 L. 
 R. A. 802 ; Morehouse v. Morehouse, 70 Conn. 
 420, 39 Atl. 516; Holthoefer v. Holthoefer, 
 47 Mich. 260, 643, 11 N. W. 150 (where the 
 doctrine is sustained, though the divorce was 
 refused in a case termed by Cooley, J., as 
 "quite peculiar," the wife being found dis- 
 eased, with no suspicion against her chastity, 
 and the husband found on examination to 
 have no signs of it) ; and having, the disease 
 has been held sufficient cause without com- 
 municating it; 1 Hagg. Eccl. 765; Canfield 
 v. Canfield, 34 Mich. 519; Hanna v. Hanna, 3 
 Tex. Civ. App. 51, 21 S. W. 720; where the 
 court was not prepared to say that it would 
 not entitle the wife to a divorce, if the hus- 
 band were diseased, without proof that he 
 
 had communicated it to her; a reasonable 
 apprehension of injury is sufficient; 1 Hagg. 
 Con. 35. The libellant must have been ig- 
 norant as to the existence and nature of the 
 disease, otherwise there may be waiver and 
 condonation; Rehart v. Rehart (Or.) 25 Pac. 
 775 ; but if she was ignorant, the divorce 
 will be granted; Wilson v. Wilson, 16 R. I. 
 122, 13 AtL 102. 
 
 Charges held not to be grounds of divorce 
 are that the wife entered into love-making, se- 
 cret correspondence and meetings with young 
 men and the like, which the court character- 
 ized as "flirting" ; Hancock v. Hancock, 55 
 Fla. 680, 45 South. 1020, 15 L. R. A. (N. S.) 
 670 ; the refusal of a man to permit his 
 wife actively to control his business, though 
 it result in the inability to live harmoniously 
 together; Root v. Root, 164 Mich. 638, 130 
 N. W. 194, 32 L. R. A. (N. S.) 837, Ann. Cas. 
 1912B, 740. The practice of Christian Science 
 as a doctor by a wife may give her husband 
 ground for divorce under a statute authoriz- 
 ing divorce for treatment seriously injuring 
 health or endangering reason, even though 
 such alleged injury is due to the husband's 
 abnormal sensitiveness; Robinson v. Robin- 
 son, 66 N. H. 600, 23 AtL 362, 15 L. R. A. 
 121, 49 Am. St. Rep. 632. 
 
 In the Philippine Islands adultery of the 
 husband must be accompanied by public scan- 
 dal and disgrace to entitle the wife to a di- 
 vorce; De La Rama v. De La Rama, 201 U. 
 S. 303, 26 Sup. Ct. 485, 50 L. Ed. 765. 
 
 The Uniform Divorce Act has been passed 
 in Delaware, New Jersey, and Wisconsin. 
 
 See Abandonment; Adultery; Legal 
 Cruelty; Habitual Drunkard; Insanity; 
 Impotence. As to divorce laws in all coun- 
 tries, see 3 Burge, Colonial Law, by Renton 
 & Phillimore. 
 
 Some of the principal defences in suits for 
 divorce are: Connivance, or the corrupt con- 
 sent of a party to the conduct of the other 
 party, whereof he afterwards complains. 
 This bars the right of divorce, because no in- 
 jury was received ; for what a man has con- 
 sented to he cannot say was an injury; 2 
 Bish. Mar. & D. § 204. See Brown v. Grove, 
 116 Ind. 84, 18 N. E. 387, 9 Am. St. Rep. S23 ; 
 Pettee v. Pettee, 77 Hun 595, 28 N. Y. Supp. 
 1067. And this may be passive as well as 
 active; 3 Hagg. Eccl. 87. See Morrison v. 
 Morrison, 136 Mass. 310. See Connivance. 
 Collusion, which is an agreement between 
 husband and wife for one of them to com- 
 mit, or appear to commit, a breach of matri- 
 monial duty, for the purpose of enabling the 
 other to obtain the legal remedy of divorce, 
 as for a real injury. Where the act has not 
 been done, collusion is a real or attempted 
 fraud upon the court ; where it has, it is al- 
 so a species of connivance ; in either case it 
 is a bar to any claim for divorce ; 2 Bish 
 Mar. & D. § 251. See Collusion. Condone* 
 Hon, or the conditional forgiveness or remis-
 
 DIVORCE 
 
 909 
 
 DIVORCE 
 
 sion by the husband or wife of a matrimonial 
 offence which the other has committed. 
 While the condition remains unbroken, con- 
 donation, on whatever motive it proceeded, 
 is an absolute bar to the remedy for the par- 
 ticular injury condoned ; 2 Bish. Mar. & D. 5 
 268 ; Farmer v. Farmer, 86 Ala. 322, 5 South. 
 434; 60 Law J. Prob. 73; O'Connor v. O'Con- 
 nor, 109 N. C. 139, 13 S. E. 887 ; Nullmeyer v. 
 Nullmeyer, 49 111. App. 573. For the nature 
 of the condition, and other matters, see Con- 
 donation. Recrimination, which is a de- 
 fence arising from the complainant's being in 
 like guilt with the one of whom he com- 
 plains. It is incompetent for one of the par- 
 ties to a marriage to come into court and 
 complain of the other's violation of matri- 
 monial duties, if the party complaining is 
 guilty likewise; Itedington v. Redington, 2 
 Colo. App. 8, 29 Pac. 811. When the defend- 
 ant sets up such violation in answer to the 
 plaintiff's suit, this is called, in the matri- 
 monial law, recrimination ; 2 Bish. Mar. & 
 D. § 340. See Recrimination. 
 
 The foregoing defences, though available in 
 all divorce causes, are more frequently ap- 
 plicable where a divorce is sought on the 
 ground of adultery. 
 
 The consequences of divorce are such as 
 flow from the sentence by operation of law, 
 or flow from either the sentence or the pro- 
 ceeding by reason of their being directly or- 
 dered by the court and set down of record. 
 In regard to the former, they are chiefly such 
 as result immediately and necessarily from 
 the definition and nature of a divorce. Being 
 a dissolution of the marriage relation, the 
 parties have no longer any of the rights, nor 
 are subject to any of the duties, pertaining 
 to that relation. They are henceforth single 
 persons to all intents and purposes. It is 
 true that the statutes of some of the states 
 contain provisions disabling the guilty party 
 from marrying again ; but these are in the 
 nature of penal regulations, collateral to the 
 divorce, and which leave the latter in full 
 force. 
 
 In regard to rights of property as between 
 husband and wife, a sentence of divorce 
 leaves them as it finds them. Consequently, 
 all transfers of property which were actually 
 executed, either in law or fact, continue un- 
 disturbed ; for example, the personal estate 
 of the wife, reduced to possession by the 
 husband, remains his after the divorce the 
 same as before. On the termination of a 
 tenancy by the entirety, created by a con- 
 veyance to husband and wife, by an absolute 
 divorce, they afterward hold the land as ten- 
 ants in common without survivorship; Stelz 
 v. Shreck, 128 N. Y. 263, 28 N. K. 610, i:'> L. 
 R. A. 325. 26 Am. St. Rep. 475. See Hopson 
 v. Fowlkes. 92 Tenn. 697, 28 B. W. 55, 23 
 L. R. A. S05. 36 Am. St. Rep. 120. But it 
 puts an end to all rights depending upon the 
 marriage and not actually vested ; as, dow- 
 
 er in a wife, all rights of the husband in the 
 real estate of the wife, and his right to re- 
 duce to ii her choses in action ; Law- 
 son v. Shotwell, 27 M I iould v. Grow, 
 57 Mo. 200; Whitsell v. Mills, 6 ind 
 Clark v. Clark, G W. ft 8. 1 » end 
 v. Griflin, 4 I la it. (D 
 
 8 Conn, nil : Legg v. Ken- 
 
 wick v. Ken w id.. 10 
 
 Doe v. Brown, r> Blackf. (Ind.) 309; Oldham 
 v. Benderson, ." Dana (Ky.) 254; Arri 
 v. Arrington, 102 N. C. r.u. 9 B. i: 
 can Legion of Honor v. Smith, 45 N. J. Eq. 
 166, 17 Atl. 770; Maynard v. Hill. 125 D. B. 
 216, 8 Sup. Ct. 71':;, 31 L. Ed. 654; Barret! 
 v. Palling, 111 r. S. 525, -i Bup. Ct 51 
 L. Ed. 505; Lamkin v. Knapp, L'o Ob 
 i." I. in respeel to dower, bow< hould 
 
 be observed that a contrary doctrine has 
 been settled in New York, it being there held 
 that Immediately upon the man-: 
 solemnized the wife's i-iudit to dower becomes 
 perfect, provided only she survives her hus- 
 band; Wait v. Wait, 4 N. Y. 85; Forrest r. 
 Forrest, 6 Duer (N. Y.) 102. 
 
 Courts will annul or vacate decree- of di- 
 vorce on sufficient showing alter the death "t' 
 one or both of the parties thereto, where 
 property rights are involved: Johnson v. 
 Coleman, 23 Wis. 452, 09 Am. Dec 193; Law- 
 rence v. Nelson. 113 la. 277, 85 N. W. 84, 57 
 L. R. A. 5S3; Wood v. Wood, L36 la. 128, 
 113 N. W. 492, 12 L. K. A. (N. SO B91, 125 
 Am. st. Bep. 223; Shafer v. Shafer, 30 Mich. 
 163; or where it is shown that the d 
 was fraudulently obtaiued; Appeal of Fi- 
 delity Ins. Co., 93 l'a- 242 (where the rule to 
 vacate it was not filed until thirb 
 ai'tcr the decree was obtained and after the 
 death*of the party obtaining It); Brown v 
 Grove, 116 Ind. 84, 18 N. B. 887, 'J Am Bt 
 Rep. 823 (twenty years after the dale of the 
 decree and long after the death of the party 
 obtaining it); or where lack of Jurisdiction 
 to grant the decree is shown: Bine v. B 
 son, 9 Ohio Dec. Beprlnt 275; YViilman v. 
 Willman, 57 Ind. 500. 
 
 One against whom a divorce is obtained 
 who accepts the benefit of the decree, and 
 acts in a way which would be Illegal but 
 for the divorce so granted, cannot, a: 
 long lapse Of time and after the death of the 
 other party, deny its validity, or assert that 
 it was obtained without due notice; In re 
 Bichardson's Estate, 132 Pa. 292, 19 A1 
 Mohier v. Shank's Estate, '•>•". la. 273, 61 N. 
 w. 981, 34 L B, A. L61, 57 Am. Bt Bep. 274 : 
 aor can one who invokes the Jurisdiction ot 
 a state and submits himself thereto be heard 
 to question such Jurisdiction : Mai I 
 risson, 52 Hun 102, S N- Y. Bupp. 90, affirmed 
 in 117 N. v. 638, 22 N. B. 1130; and Us rep- 
 resentatives can occupy no letter position 
 than be would have, if living; id. If the 
 defendant In a divorce decree cannot attack 
 ause it was obtained by his own fraud.
 
 DIVORCE 
 
 910 
 
 DIVORCE 
 
 his administrator cannot attack it because 
 of such fraud ; Dow v. Blake, 148 111. 76, 35 
 N. E. 761, 39 Am. St. Rep. 156. In Kirschner 
 v. Dietrich, 110 Cal. 502, 42 Pac. 1064, where 
 no property rights were involved, it was held 
 that, by the death of a party, a suit for a 
 divorce was absolutely abated, and that the 
 purpose of the action being to change the 
 personal status of the plaintiff in her rela- 
 tions to her husband after her death, there 
 was none which could be changed by judg- 
 ment; and in Barney v. Barney, 14 la. 189, 
 there being no property in which the hus- 
 band, except for the divorce, would have had 
 an interest at the death of the wife, and no 
 fraud being alleged, it was held that the 
 suit abated. Where in an action for dower 
 in Ohio the defence was set up that the de- 
 ceased had previously obtained a divorce in 
 an Indiana court, of which it was proved 
 that the wife had no knowledge until after 
 the death of the husband, and the record did 
 not show the ground upon which the decree 
 was based, it was held that the decree acted 
 only on the marital relations, and having 
 been rendered without jurisdiction of the 
 person of the wife, her property rights in 
 Ohio were unaffected ; Doerr v. Forsythe, 50 
 Ohio St. 726, 35 N. E. 1055, 40 Am. St. Rep. 
 703. 
 
 The death of the complainant in a divorce 
 suit, before a writ of error, was held not to 
 destroy the subject-matter of the suit, as re- 
 spects the jurisdiction of the court of re- 
 view ; although the record fails to show that 
 any property right was involved; Chatter- 
 ton v. Chatterton, 231 111. 449, 83 N. E. 161, 
 121 Am. St. Rep. 339, where the court ap- 
 proved of decisions denying that, by the 
 death pi a party in such suit, the marriage 
 status' was forever destroyed and that there 
 was no subject matter of which a court of 
 review could assume jurisdiction ; Danforth 
 v. Danforth, 111 111. 236, where the writ of 
 error was taken before the death of the par- 
 ty and a motion to amend the record, so as 
 to give effect to the judgment as of a prior 
 term, was allowed ; Wren v. Moss, 2 Gilman 
 (111.) 72, where it was held that a writ of 
 error might be prosecuted after the death of 
 the other party, to reverse the decree ; Wren 
 v. Moss, 1 Gilman (111.) 560, where a motion 
 to abate the suit as to alimony and to make 
 the executor a party for a writ of error was 
 allowed. 
 
 A decree of divorce may be reviewed after 
 the death of a party, either on a writ of er- 
 ror ; Israel v. Arthur, 6 Colo. 85 ; or appeal ; 
 Shafer v. Shafer, 30 Mich. 163. Such a de- 
 cree was properly vacated and annulled by 
 the court, after the death of the husband who 
 had obtained it, there being evidence of fraud 
 and imposition on the part of the libellant ; 
 Appeal of Boyd, 3S Pa. 241. A case con- 
 stantly cited to the effect that a divorce ob- 
 tained by fraud may be set aside after the 
 
 death of a party has been properly char- 
 acterized as merely a dictum, since the deci- 
 sion was upon other grounds and that ques- 
 tion was not involved ; 57 L. R. A. 583, 589, 
 note, where the cases to that date upon the 
 right to contest the validity of a divorce de- 
 cree, after the death of a party, are collect- 
 ed and reviewed with discrimination. But 
 where a divorce had been obtained by the 
 plaintiff who subsequently died, a motion to 
 set aside the judgment for fraud was prop- 
 erly denied and it was suggested that the 
 proper course was an action in the nature of 
 a bill of revivor bringing before the court all 
 the heirs at law and others interested in the 
 property left by decedent; Watson v. Wat- 
 son, 1 Hun (N. Y.) 267 ; and to the same ef- 
 fect is Groh v. Groh, 35 Misc. 354, 71 N. Y. 
 Supp. 985. These cases having been in New 
 York, where the writ of error was abolished, 
 the method of review suggested was doubt- 
 less the only one available. In Michigan, 
 where the practice, it is believed, is very 
 similar to that of New York, there is a sim- 
 ilar case ; Zoellner v. Zoellner, 46 Mich. 511, 
 9 N. W. 831 ; and a precisely similar case 
 citing and relying upon the Michigan case is 
 Roberts v. Roberts, 19 R. I. 349, 33 Atl. 872 ; 
 and in a later Michigan case it was held 
 that in simple divorce proceedings aimed at 
 no independent relief after the death of one 
 party, no decree could be made relating back 
 to his lifetime; Wilson v. Wilson, 73 Mich. 
 620, 41 N. W. 817. Where the plaintiff in a 
 suit for divorce dies pending the trial, be- 
 fore submission to the jury, if the issues are 
 found in his favor, judgment of divorce will 
 be entered as of the first day of the term 
 while he was alive; Webber v. Webber, 83 
 N. C. 2S0. Cases which hold that the action 
 is of a personal hature and abates with the 
 death of the party bringing it are Hunt v. 
 Hunt, 75 Misc. 209, 135 N. Y. Supp. 39 ; Dwy- 
 er v. Nolan, 40 Wash. 459, 82 Pac. 746, 1 L. 
 R. A. (N. S.) 551, 111 Am. St. Rep. 919, 5 
 Ann. Cas. S90 (where it was held that the 
 decree could not be set aside for want of 
 jurisdiction) ; Wood v. Wood, 1 Boyce (Del.) 
 134, 74 Atl. 560 (where the court refused to 
 make absolute a decree nisi and set it aside 
 on the petition and affidavit of the defend- 
 ant suggesting the death of the plaintiff) ; 
 In re Crandall, 196 N. Y. 127, 89 N. E. 578, 
 134 Am. St. Rep. 830, 17 Ann. Cas. 874; 
 Strickland v. Strickland, SO Ark. 451, 97 S. 
 W. 659 ; Hite v. Trust Co., 156 Cal. 765, 106 
 Pac. 102 ; but where the plaintiff died, after 
 the entry of a interlocutory judgment by de- 
 fault, the court had power to render its final 
 decree in accordance therewith after the 
 death of the party ; John v. Superior Court, 
 5 Cal. App. 262, 90 Pac. 53 (this being ex- 
 actly the reverse of the Delaware case cited). 
 Of those consequences which result from 
 the direction or order of the court, the most 
 important are: Alimony, or the allowance
 
 DIVORCE 
 
 911 
 
 
 which a husband, by order of court, pays to 
 his wife, living separate from him, for her 
 maintenance. The allowance may be for her 
 use either during the pendency of a suit, — 
 in which case it is called alimony pendente 
 lite, — or after its termination, called perma- 
 nent alimony. As will in; seen from the fore- 
 going definition, alimony, especially perma- 
 nent alimony, pertains rather to a separation 
 from bed and board than to a divorce from 
 the bond of matrimony, Indeed, it is gen- 
 erally allowed in the latter case only in pur- 
 suance of statutory provisions. 
 
 A court has no authority to grant a de- 
 cree of divorce in favor of a libellant after 
 he has moved the court that no decree 
 tered; Milliman v. Milliman, 45 Colo. 291, 
 101 Pac. 58, 22 L. R. A. (N. S.) 999, 132 Am. 
 St. Rep. 1S1 ; see, also, Adams v. Adams, 57 
 Misc. 150, 10G N. Y. Supp. 1064, where It 
 appeared that the defendant had denied the 
 marriage and the court refused to dismiss 
 the suit on libelant's motion; Winans v. W'i- 
 nans, 124 N. Y. 140, 26 N. E3. 293. See Milli- 
 man v. Milliman, 45 Colo. 291, 101 Pac. 58, 
 22 L. R. A. (N. S.) 999, 132 Am. St. Rep. 181. 
 As a general rule of practice, the uncor- 
 roborated evidence of a co-respondent is held 
 not sufficient to grant a divorce; Delaney v. 
 Delaney. 71 N. J. Eq. 246, 65 Atl. 217, re- 
 versing G9 N. J. Eq. 602, 61 Atl. 2G6 ; Her- 
 rick v. Herrick, 31 Mich. 29S ; Evans v. Ev- 
 ans, 93 Ky. 512, 20 S. W. COS ; but the court 
 may act upon it, if satisfied that the story 
 told is true and that there is no collusion; 
 21 T. L. R. 676; (1907) P. 334. The denial 
 of the adultery by defendant and the co- 
 respondent is competent and, although of lit- 
 tle weight against clear proof, in the absence 
 of it, was held sufficient; Mayer v. Mayer, 
 21 N. J. Eq. 246. 
 
 As to the Effect on a Will. It has been 
 held that a divorce alone does not revoke a 
 previously executed will; In re Brown's Es- 
 tate, 139 la. 210, 117 N. W. 260; Baacke v. 
 Baacke, 50 Neb. 21, 09 N. W. 303; Charlton 
 v. Miller, 27 Ohio St. 298, 22 Am. Rep. 307; 
 Card v. Alexander, 48 Conn. 492, l»i Am. Rep. 
 1S7; L. R. 22 Ch. Div. 597; L. R. 25 Ch. 
 Div. 6S5. It is said that it is probable thafc 
 a divorce granted at the suit of the wile with 
 alimony expressly decreed to he in lieu of 
 all her rights in the property of her husband, 
 testamentary and otherwise, would by im- 
 plication of law revoke the will of her hus- 
 band in so far as it made provision for her ; 
 1 Underhill, Wills 265. in a Michigan case 
 it is held that when at the time a decree of 
 divorce is granted, the parties to the action 
 settle and adjust their property rights by 
 mutual agreement, without mentioning wills 
 theretofore made by them, the decree of di- 
 vorce and settlement constituted an implied 
 revocation of the will so theretofore made. 
 The courl said that by the decree of divorce 
 and the property settlement the parties be- 
 
 came strangers to each other, neither there- 
 after owing to the other either legal or moral 
 obligations or duties, and that there was 
 ore a con in their rela- 
 
 tions, within the rule of Imp! ation 
 
 of wills ; 1.: 95 Mich. I 
 
 X. w. 699, ::•". Am. St B 
 Donaldson v. Ball, 106 lit □ 502, 1 19 N. W. 
 219, 20 L. R. A. (X. Si 1073 
 Rep. 621, 16 Ann. Cas. 541. In I 
 Baacke, ">ii Neb. 18, 69 v ft 
 was held that the doctru 
 implication of law was based D] 
 sumed alteration of Intention, ari 
 the changed condition and drcuinstam i 
 
 tator, or on the presumption that the 
 will would have been different had it 
 executed under alteri d circumsl 1 1 
 that a settlement "f a woman's property 
 rights upon obtaining a divorce from her 
 husband does not work a revocation of a will 
 previously executed by the husband. 
 
 As to questions arising from divorce re- 
 lating to the custody Of children, see PARENT 
 axd Child. 
 
 By the civil law, the child of parents di- 
 vorced is to be brought up by the Ini 
 party at the expense of the guilty party. 
 Ridley's View, pt 1, c. 3, § 9, citing 8th Col- 
 lation'. 
 
 DO UT DES. I give that you may give. 
 See Consideration. 
 
 DO UT FACIAS. I give that you may do. 
 See Consideration. 
 
 DOCK. The enclosed space occupied by 
 prisoners in a criminal court. 
 
 The space between two wharves. See City 
 of Boston v. I.e. raw. 17 How. (TJ S.) 134, 15 
 L. Ed. us. The owner of a dock is liable 
 to a person who. by his invitation, and in the 
 exercise of due care, pi: M -el in the 
 
 dock, for injury to the vessel caused by a 
 defect thereon which the owner negligently 
 allows to exist; Nickerson V. Tirrell, 127 
 Mass. 236. 
 
 DOCK WARRANT. A negotiable i 
 ment, in use in England, given by the i 
 owners to the owner >:[' goods imported and 
 warehoused in the docks, as a recognition of 
 
 his title to the goods, upon the production of 
 the bills of lading, etc. Pulling on the Cus- 
 toms of London. 
 
 DOCKAGE. The sum charged for t' 
 Of a dock. In tl C 8 dry dOCK, it has 
 
 been held in the nature of rent. Ives v. The 
 eye State, l Newb. 69, Fed. Caa No. 
 71 17. See Wharfage. 
 
 DOCKET. A formal record of judicial 
 
 proceedings; a brief writing. A small piece 
 of paper or parchment having tl i 
 
 a larger. Blount. An abstract. CowelL 
 
 To docket is said to bo by Ulackstone to abstract 
 and enter into a b m. 397. The essen- 
 
 tial Idea of a modi rn docket, then, is an entry in 
 brief in a proper book of all the important acts done
 
 DOCKET 
 
 912 
 
 DOCUMENTS 
 
 in court In the conduct of each case from its com- 
 mencement to its conclusion. See Colby, Pr. 154. 
 
 In common use, it is the name given to the book 
 containing these abstracts. The name of trial-dock- 
 et is given to the book containing the cases which 
 are liable to be tried at a specified term of court, 
 called also calendar, or list. 
 
 The docket should contain the names of the par- 
 ties and a minute of every proceeding in the case. 
 It is kept by the clerk or prothonotary of the court. 
 The docket entries form the record until the techni- 
 cal record is made up in proper form ; State v. Car- 
 roll, 38 Conn. 449, 9 Am. Rep. 409 ; McGrath v. Sea- 
 grave, 2 Allen (Mass.) 443, 79 Am. Dec. 797 ; Leath- 
 ers v. Cooley, 49 Me. 337; Tracy v. Maloney, 105 
 Mass. 90 ; and this is true of the entries in the 
 docket of a justice of the peace ; Davidson v. Slo- 
 comb, 18 Pick. (Mass.) 464 ; Ellsworth v. Learned, 
 21 Vt. 535. A sheriff's docket is not a record ; 
 Thomas v. Wright, 9 S. & R. (Pa.) 91; Stevenson 
 v. Weisser, 1 Bradf. (N. Y.) 343. 
 
 DOCK MASTERS. Officers appointed to 
 direct the mooring of ships, so as to prevent 
 the obstruction of dock entrances. 
 
 DOCTOR. Means commonly a practitioner 
 of medicine, of whatever system or school. 
 Corsi v. Maretzek, 4 E. D. Smith (N. Y.) 1. 
 See Physicians. 
 
 DOCTORS COMMONS. An institution 
 near St. Paul's Cathedral in London, where 
 the ecclesiastical and admiralty courts were 
 held until the year 1857. 3 Steph. Com. 
 306, n. 
 
 In 1768 a royal charter was obtained by virtue of 
 which the members of the society and their succes- 
 sors were incorporated under the name and title of 
 "The College of Doctors of Laws exercent in the 
 Ecclesiastical and Admiralty Courts." The College 
 consists of a president (the dean of the arches for 
 the time-being) and of those doctors of laws who, 
 having regularly taken that degree in either of the 
 universities of Oxford and Cambridge, and having 
 been admitted advocates in pursuance of the re- 
 script of the archbishop of Canterbury, shall have 
 been elected fellows of the college in the manner 
 prescribed by the charter. 
 
 DOCUMENT OF TITLE. By the Factors' 
 Act 56, Vict. c. 39, § 4, it is stated to mean 
 any bill of lading, India warrant, dock war- 
 rant, warehouse-keeper's certificate warrant, 
 or order for the delivery of goods, or any oth- 
 er document used in the ordinary course of 
 business, as proof of the possession or con- 
 trol of goods, or authorizing, or purporting to 
 authorize, either by endorsement or by de- 
 livery, the possessor of such document to 
 transfer or receive goods thereby represent- 
 ed. Benj. Sales 788. 
 
 DOCUMENTS. The deeds, agreements, ti- 
 tle-papers, letters, receipts, and other written 
 instruments used to prove a fact. See Haz- 
 ard v. Durant, 12 R. I. 99. 
 
 If a document is lost, secondary evidence 
 of its contents may be given, after laying a 
 proper foundation therefor by proving its for- 
 mer existence, and its due execution, and sat- 
 isfactorily accounting for the failure to pro- 
 duce it. The burden of proving all these facts 
 rests on the party who seeks to introduce 
 secondary evidence of the document claimed 
 to have been lost ; Earley v. Euwer, 102 Pa. 
 338 ; Elwell v. Cunningham, 74 Me. 127. See 
 
 American Life Insurance & Trust Co. v. Ros- 
 enagle, 77 Pa. 507. See Lost Instrument. 
 
 In Civil Law. Evidence delivered in the 
 forms established by law, of whatever nature 
 such evidence may be. The term is, however, 
 applied principally to the testimony of wit- 
 nesses. Savigny, Dr. Rom. § 165. See Ev- 
 idence. 
 
 DOE, JOHN. The name of the fictitious 
 plaintiff in the action of ejectment. 3 Steph. 
 Com. 618. 
 
 DOG. See Animal; Expeditation. 
 
 In almost all languages this word is used as a 
 
 term or name of contumely or reproach. See 3 
 
 Bulstr. 226 ; 2 Mod. 260 ; 1 Leon. 148 ; and the title 
 
 Action on the Case for Defamation in the Digests. 
 
 A tax on dogs is constitutional, and so is 
 a provision that in case of refusal to pay the 
 tax, the dog may be killed; Blair v. Fore- 
 hand, 100 Mass. 136, 97 Am. Dec. 82, 1 Am. 
 Rep. 94; Mowery v. Town of Salisbury, 82 
 N. C. 175; contra, Archer v. Baertschi, 8 
 Ohio Cir. Ct. R. 12 ; Jenkins v. Ballantyne, 8 
 Utah 245, 30 Pac. 760, 16 L. R. A. 689. A 
 proceeding of the most stringent character 
 for the destruction of dogs kept contrary to 
 municipal regulations is constitutional ; Ju- 
 lienne v. City of Jackson, 69 Miss. 34, 10 
 South. 43, 30 Am. St. Rep. 526. 
 
 DOGMA. In Civil Law. The word is 
 used in the first chapter, first section, of the 
 second Novel, and signifies an ordinance of 
 the senate. See, also, Dig. 27. 1. 6. 
 
 DOING BUSINESS. See Foreign Corpo- 
 ration. 
 
 DOLE. A part or portion. Dole-meadow, 
 that which is shared by several. Spelman, 
 Gloss.; Cowell. 
 
 DOLEANCE. A peculiar appeal in the 
 Channel Islands. It is a personal charge 
 against a judicial officer, either of misconduct 
 or of negligence. L. R. 6 P. C. 155. It still 
 exists in a modified form. L. R. 5 A. C. 348. 
 See 48 L. Jour. 281. 
 
 DO LI CAPAX. Capable of mischief; hav- 
 ing knowledge of 'right and wrong. 4 Bla. 
 Com. 22, 23 ; 1 Hale, PI. Cr. 26, 27. 
 
 D0LI INCAPAX (Lat). Incapable of dis- 
 tinguishing good from evil. A child under 
 seven is absolutely presumed to be doli in- 
 capax; between seven and fourteen is, prima 
 facie, incapax doli, but may be shown to be 
 capax doli. 4 Bla. Com. 23; Broom, Max. 
 310 ; Williams v. State, 14 Ohio 222, 45 Am. 
 Dec. 536 ; People v. Randolph, 2 Park. Cr. R. 
 (N. Y.) 174. See Discretion; Age. 
 
 DOLLAR (Germ. Thaler). The money unit 
 of the United States. 
 
 It was established under the confederation by res- 
 olution of congress, July 6, 1785. This was originally 
 represented by a silver piece only ; the coinage of 
 which was authorized by the act of congress of Aug. 
 8, 1786. The same act also established a decimal 
 system of coinage and accounts. But the coinage 
 was not effected until after the passage of the act
 
 DOLLAR 
 
 913 
 
 b l.l.AR 
 
 of April 2, 1792, establishing a mint, 1 U. S. Stat L. 
 246; and the first coinage of dollars commenced In 
 1794. The law last cited provided for the coinage of 
 "dollars or units, each to be of the value of a Span- 
 ish milled dollar, as the same was then current, and 
 to contain three hundred and seventy-one grains 
 and four-sixteenth parts of a grain of pure 
 or four hundred and sixteen grains of standard sil- 
 ver." 
 
 The Spanish dollar known to our legislation was 
 the dollar coined in Spanish America, North and 
 South, which was abundant in our currency, in con- 
 tradistinction to the dollar coined in Spain, which 
 was rarely seen in the United States. The intrinsic 
 value of the two coins was the same ; but, as a gen- 
 eral (not invariable) distinction, the American coin- 
 age bore pillars, and the Spanish an escutcheon or 
 shield ; all kinds bore the royal efflgy. 
 
 The milled dollar, so called, is in contradistinction 
 to the irregular, misshapen coinage nicknamed cob, 
 which a century ago was executed in the Spanish- 
 American provinces,— chiefly Mexican. By the use 
 of a milling machine the pieces were figured on the 
 edge, and assumed a true circular form. The pillar 
 dollar and the milled dollar were in effect the same 
 In value, and, in general terms, the sanr 
 though there are pillar dollars ("cobs") which are 
 not milled, and there are milled dollars (of Spain 
 proper) which have no pillars. 
 
 The weight and fineness of the Spanish milled and 
 pillar dollars is eight and one-half pieces to a Cas- 
 tilian mark, or four hundred and seventeen and 
 fifteen-seventeenths grains Troy. The limitation of 
 four hundred and fifteen grains in our law of 1806, 
 April 10, 2 U. S. Stat. L. 374, was to meet the loss 
 by wear. The legal fineness of these dollars was ten 
 dineros, twenty granos, equal to nine hundred and 
 two and seven-ninths thousandths: the actual fine- 
 ness was somewhat variable, and always below. 
 The Spanish dollar and all other foreign coins are 
 ruled out by the act of congress of Feb. 21, 18">7, 13 
 U. S. Stat. 1856-57, 163, they being no longer a legal 
 tender. But the statements herein given are useful 
 for the sake of comparison: moreover, many con- 
 tracts still in existence provide for payment (of 
 ground-rents, for example) in Spanish milled or pil- 
 lar dollars. The following terms, or their equiva- 
 lent, are frequently used in agreements made about 
 the close of the last and the beginning of the present 
 century: "silver milled dollars, each dollar weigh- 
 ing seventeen pennyweights and six grains at least." 
 This was equal to four hundred and fourteen grains. 
 The standard fineness of United States silver coin 
 from 1792 to 183G was fourteen hundred and eighty- 
 five parts fine silver in sixteen hundred and sixty- 
 four. Consequently, a piece of coin of four hun- 
 dred and fourteen grains should contain three hun- 
 dred and sixty-nine and forty-six hundredths grains 
 pure silver. 
 
 By the act of Jan. 18, 1837, § 8, 5 U. S. Stat. 137, 
 the standard weight and fineness of the dollar of 
 the United States was fixed as follows: "of one 
 thousand parts by weight, nine hundred shall be of 
 pure metal and one hundred of alloy," the alloy to 
 consist of copper; and it was furtli. r provided that 
 the weight of the silver dollar should be four hun- 
 dred and twelve and one-half grains (412 1-2). 
 
 The weight of the silver dollar has not been 
 changed by subsequent legislation ; but the propor- 
 tionate weight of the lower denomination of silver 
 coins has been diminished by the ace of Feb. 
 11 U. S. Stat. L. 160. By this act the half-dollar 
 (and the lower coins in proportion) is reduced in 
 weight fourteen and one-quarter grains below the 
 previous coinage: so that the silver dollar which 
 was embraced in this act weighs twenty < Ight and 
 one-half grains more than two half-dollars. The 
 silver dollar then, consequently, ceased to be cur- 
 rent in the United States ; but it continued to be 
 coined to supply the demands of the West India 
 trade and a local demand for cabinets, etc. 
 
 But the act of Feb. 28, 1S78, 20 U. S. Stat. L. c. 20, 
 restored the standard silver dollar of the act of Jan. 
 18. 1837, as a legal tender for all debts except where 
 otherwise stipulated in the contract, and required 
 the monthly purchase of not less than two million 
 
 Bouv.— 58 
 
 and not more than four million dollars worth of 
 silver bullion and the coinage of the same Into 
 standard silver dollars, but this lattti 
 repealed by act of July I of Feb. 12. 
 
 1878, introduced t:. 
 
 four hundred and twenty grains Troy, intended 
 chiefly, if not wholly, to n dol- 
 
 lar in trade with China and I found 
 
 its way, how. 
 
 - 
 
 gress of July 22, 1876, 15 Stat. L. ; to be a 
 
 legal tender, has ltd I The 
 
 coinage of the trade-dollar » ud its 
 
 ■ non and recoinage In 
 
 i by the act of M L. Ci2. 
 
 See also U. S. R. S. 1 Sui ; 
 
 By the act of N'ovemb' t is declared to be 
 
 the policy of the United States to continue the use 
 of both gold and silver as standard money, and to 
 coin both gold and silver into m -al in- 
 
 trinsic and exchangeable value, such equality to be 
 secured through international a or by 
 
 such safeguards of legislation as will Insure the 
 maintenance of the parity in value of the coins of 
 the two metals, and the equal power of every dollar 
 at all times in the markets and in the payment of 
 debts. It is further declared that the efforts of the 
 Government should be steadily directed to the es- 
 tablishment of such a safe system of bimetallism as 
 will maintain at all times the equal power of every 
 dollar coined or issued by the United States, In the 
 markets and in the payment of debts. 
 
 By the act of March 3, 1S19, a gold dollar was 
 authorized to be coined at the mint of the United 
 States and the several branches thereof, conform- 
 ably in all respects to the standard of gold coins 
 now established by law, except that on the reverse 
 of the piece the figure of the eagle shall be omitted. 
 It is of the weight of 25.8 grains, and of the fineness 
 of nine hundred thousandths. This dollar was made 
 the unit of value by act of congress Feb. 12, 1873. 
 and it was further provided that 6uch dollar, when 
 worn by natural abrasion, and so reduced In weight 
 after twenty years of circulation (as evidenced by 
 date on the face of such coin), will be redeemed by 
 the United States Treasury or its offices, subject 
 to such regulations as the Secretary of the Treasury 
 may prescribe for the protection of the Government 
 against fraudulent abrasions and other practices ; 
 U. S. Rev. Stat. §§ 3505, 3511. Its coinage was dis- 
 continued by act of September 26, 1890. 
 
 A charge of one-fifth per centum was formerly 
 made for converting gold bullion into coin, but by 
 act of Jan. 14, 1875, this law was repealed. 
 
 The one dollar and the three dollar gold pieces are 
 no longer coined. See £6 Stat. L. 4S5. 
 
 the word dollars is used in a bequest or in 
 any instrument for the payment of money, the 
 amount is payable in whatever the United States 
 declares to be legal tender, whether coin or paper 
 money, but not in real or personal property in which 
 money has been invested ; Halsted v. Meeker's Ex'rs. 
 18 N. J. Eq. loil ; banning v. Sisters of St. Francis, 
 85 N. J. Eq. 396 : Bank of State v. Burton. 27 Ind. 
 488; Miller v. Lacy, 33 Tex. 351; Hart t. Flyn's 
 Ex'rs, 8 Pana iKy.) 180; Morris v. Bancroft, 1 U. 
 N. C. (Pa.) 223. 
 
 D0L0. The Spanish form of dolus. 
 
 dolus (Lat). in Civil Law. a fraudu- 
 lent address or trick used to deceive Borne 
 one; B fraud. Dig. 1. ■"•. 1. Any subtle con- 
 trivance by words or nets with :i design t<> 
 circumvent 2 Kent 560; Oode 2. 2L 
 
 Dolus differs from culpa in this, that the latter 
 proceeds from an error of ti, .".ding, while 
 
 to constitute the former I be a will or in- 
 
 tention to do wrong. Wolfflus, Inst. 5 17. 
 
 pposed to dolus, Mil negligence, 
 
 heedlessness, or temerity, as well as indirect inten- 
 tion (i- t\ of consequence intended but not desired). 
 lysis of Austin 7S. See Culpa. 
 It seems doubtful, however, whether the general 
 use of the word dolus in the civil law is not rather
 
 DOLUS 
 
 914 
 
 DOMESDAY-BOOK 
 
 that of very great negligence, than of fraud, as used 
 in the common law. A distinction was also made 
 between dolus and fraus, the essence of the former 
 being the intention to deceive, while that of the 
 latter was actual damage resulting from the deceit. 
 
 Such acts or omissions as operate as a 
 deception upon the other party, or violate 
 the just confidence reposed by hirn, whether 
 there be a deceitful intent (mains animus) or 
 not. Pothier, Traite de Depot, nu. 23, 27; 
 Story, Bailra. § 20 a; Webb's Poll. Torts 18; 
 2 Kent 50(3, n. 
 
 DOLUS MALUS (Lat). Fraud. Deceit 
 with an evil intention. Distinguished from 
 dolus bonus, justifiable or allowable deceit. 
 Calvinus, Lex.; Broom, Mas. 349; 1 Kauf- 
 mann, Mackeld. Civ. Law 165. Misconduct. 
 Magna negligentia culpa est, magna culpa 
 dolus est (great negligence is a fault, a 
 great fault is fraud). 2 Kent 560, n. 
 
 DOM. PROC. An abbreviation of Domus 
 Procerum, the House of Lords. 
 
 DOMAIN. Dominion; territory governed. 
 Possession; estate. Land about the man- 
 sion-house of a lord. The right to dispose 
 at our pleasure of what belongs to us. 
 
 A distinction has been made between property 
 and domain. The former is said to be that quality 
 which is conceived to be in the thing itself, consid- 
 ered as belonging to such or such person, exclu- 
 sively of all others. By the latter is understood that 
 right which the owner has of disposing of the thing. 
 Hence domain and property are said to be correla- 
 tive terms ; the one is the active right to dispose of, 
 the other a passive quality which follows the thing 
 and places it at the disposition of the owner. 3 
 Toullier, n. 83. But this distinction is too subtle for 
 practical use. Puffendorff, Droit de la Nat. 1. 4. c. 4, 
 106 § 2. See 1 Bla. Com. 105; Clef des Lois Rom.; 
 Domat; 1 Hill, Abr. 24; 2 id. 237; Eminent Do- 
 main. 
 
 D0MB0C (spelled, also, often dombec. 
 Sax.). The name of codes of laws among the 
 Saxons. Of these King Alfred's was the 
 most famous. 1 Bla. Com. 46 ; 4 id. 411. 
 
 The domboc of king Alfred is not to be 
 confounded with the domesday-book of Wil- 
 liam the Conqueror. 
 
 DOME (Sax.). Doom; sentence; judg- 
 ment. An oatb. The homager's oath in the 
 black book of Hereford. See Doom. 
 
 DOMESDAY-BOOK. The record of the 
 survey of England instituted by William the 
 Conquerer and effected by inquests of local 
 jurors. It was begun in 1085 and completed 
 in 10S6. 
 
 It was primarily a fiscal survey — the lia- 
 bility for paying "gild" in the past and the 
 liability for paying "geld" in the future were 
 the chief points to be ascertained. It has 
 been called "a great rate book." Incidental- 
 ly it gives a marvelously detailed picture of 
 the legal, social, and economic state of Eng- 
 land, but a picture which, in ■ some respects, 
 is not easily interpreted ; Maitl. 2 Sel. Es- 
 says, Anglo-Amer. L. H. 76. It is preserved 
 in two manuscript volumes ; the second deals 
 with the counties of Essex, Norfolk, and 
 Suffolk; the first with the rest of England. 
 
 The first is a folio of 382 leaves ; the second 
 is a quarto volume of 450 leaves. It is prob- 
 able that the second was compiled first; 
 Round, Feud. Engl. 140. It was printed 
 by royal command in 1783. A third volume, 
 containing a general introduction and in- 
 dexes, and a fourth, containing various doc- 
 uments supposed to be connected with the 
 survey, were published in 1S16. 
 
 It early acquired tbe name of "Domesday." 
 The Dialogus de Scaccario ascribes tbe name 
 to the fact that the people were reminded by 
 it of the Day of Judgment. Hales' theory 
 (Domesday of St. Paul's XI) is that the name 
 was derived from the fact that the inquisi- 
 tions on which it was based were held on 
 the "Domes-days," or law-days, of the va- 
 rious hundreds. 
 
 "If English history is to be understood, the law 
 of Domesday Book must be mastered. We have 
 here an absolutely unique account of feudalism in 
 two different stages of its growth, the more trust- 
 worthy, though the more puzzling, because it gives 
 us particulars and not generalities." Maitland, 
 Domesday and Beyond 3. It is not a collection of 
 laws; nor a register of title; it is a "geld" book; 
 id. For a partial bibliography, see 2 Sel. Essays, 
 Anglo-Amer. L. H. 77. See Round, Feudal England ; 
 11 Engl. Hist. Rev. 209 (Pollock); Ellis, General 
 Introd. to Domesday; Ballard, Domesday .Bor- 
 oughs; Ballard, Domesday Inquest; 2 Holdsworth, 
 Hist. E. L. 118 ; 1 Soc. Engl. 236 ; Domesday Studies 
 (papers read at the Domesday Commemoration, 
 1SS6); Maitland, Domesday Book and Beyond. 
 
 D0MESMEN (Sax.). An inferior kind of 
 judges. Men appointed to doom (judge) in 
 matters in controversy. Cowell. Suitors in 
 a court of a manor in ancient demesne, who 
 are judges there. Blount ; Whishaw ; Termes 
 de la Ley. See Jury. 
 
 DOMESTIC ATTACHMENT. See Attach- 
 ment. 
 
 DOMESTIC MANUFACTURES. This 
 
 term in a state statute is used, generally, of 
 manufactures within its jurisdiction. Com. 
 v. Giltinan, 64 Pa. 100. 
 
 DOMESTIC PORT. See Home Port. 
 
 DOMESTICS. Those who reside in the 
 same house with the master they serve. The 
 term does not extend to workmen or laborers 
 employed out-of-doors. Ex parte Meason, 5 
 Binn. (Pa.) 167; Cook v. Dodge, 6 La. Ann. 
 276; Richardson v. State, 43 Tex. 456; Mer- 
 lin, Rupert. The act of congress of April 30, 
 1790, s. 25, used the word domestic in this 
 sense. This term does not extend to a serv- 
 ant whose employment is out of doors and 
 not in the house ; Wakefield v. State, 41 Tex. 
 556. 
 
 Formerly this word was used to designate those 
 who resided in the house of another, however ex- 
 alted their station, who performed services for him. 
 Voltaire, in writing to the French queen, in 1748, 
 says, "Deign to consider, madam, that I am one of 
 the domestics of the king, and consequently yours, 
 my companions, the gentlemen of the king," etc. ; 
 but librarians, secretaries, and persons in such 
 honorable employments would not probably be con- 
 sidered domestics, although they might reside in 
 the houses of their respective employers. 
 
 Pothier, to point out the distinction between a
 
 DOMESTICS 
 
 915 
 
 DnMlCIL 
 
 domestic and a servant, gives the following exam- 
 ple:— A literary man who lives and lodges with 
 you, solely to be your companion, that you may 
 profit by his conversation and learning, is your do- 
 mestic ; for all who live in the same house and 
 eat at the same table with the owner of the house 
 are his domestics ; but they are not servants. On 
 the contrary, your valet-de-chambre, to whom you 
 pay wages, and v, I out of your hou.v , 
 
 properly speaking, your domestic, but your servant. 
 
 r, Proc. Cr. sect. 2, art. 5, J 5 ; Poth. 
 710, SI'S; 9 Toullier, n. 311; H. de Pansey, D 
 tices de Paix, c. 30, n. 1. 
 
 DOMICIL. Thai place where a man has 
 his true, fixed, and permanent borne and 
 principal establishment, and to which when- 
 ever he is absent he has the Intention of re- 
 turning. White v. Crawford, 10 Mass. L88; 
 Tanner v. King, 11 La. 17.~> : Crawford v. 
 Wilson, 4 Barb. (N. Y.) 505; White v. Brown, 
 Wall. Jr. 217, Fed. Cas. No. 17,538; Home 
 v. Home, 31 N. C. 99; Holliman'a Hi 
 Peehles, 1 Tex. G73 ; Ilairston v. Hairston, 
 27 Miss. 704, 61 Am. Dec. 530; Chaine v. 
 Wilson, 1 Bosw. (N. Y.) G73 ; Hayes v. Ha vis. 
 74 111. 312. 
 
 The domicil of a person is that place or 
 country in which his habitation is tixed, 
 without any present intention of removing 
 therefrom. [1892] 3 Ch. 180 ; Story, Conn. L. 
 § 43. 
 
 Dicey defines domicil as, in general, the 
 place or country which is in fact his perma- 
 nent home, hut is in some cases the place or 
 country which, whether it be in fact his home 
 or not, is determined to be his home by a 
 rule of law; Dicey, Dom. 42; and again as 
 "that place or country either (1) in which 
 he in fact resides with the intention of resi- 
 dence (animus manendi) ; or (2) in which, 
 having so resided, he continues actually to 
 reside, though no longer retaining the in- 
 tention of residence; or (3) with regard to 
 which, having so resided there, he retains 
 the intention of residence, though he, in 
 fact, no longer resides there;" id. 44. The 
 same definition substantially is given in Di- 
 cey, Confl. Laws (Moore's ed.) 727. It is 
 there said not to include cases of domicil 
 created by operation of law. 
 
 Domicil is "a habitation fixed in some 
 place with the intention of remaining there 
 alway." Yattel. Droit des Gens, liv. i, c. xix, 
 s. 218, Da Domicile, 
 
 "The place where a person has established 
 the principal seat of his residence and of 
 his business." Pothier, Introd. (Jen. Cout. 
 d' Orleans, ch. 1, s. 1, art. 8. 
 
 "That place is to be regarded as a man's 
 •domicil which lie has freely chosen for his 
 •permanent abode [and thus for the centre 
 at once of his legal relations and his busi- 
 ness]." Savigny, S. .">."::. 
 
 "A residence at a particular place, accom- 
 panied with [positive or presumptive proof 
 of] an intention to remain there for an un- 
 limited time." Phillimore, Int. Law 4!). 
 
 "Thac phice is properly the domicil of a 
 person in which he has voluntarily tixed 
 
 the habitation of hi: family, not 
 
 for a men 
 
 but with a present Into at I u his 
 
 permanent bon • 
 
 (which is unexj . : ,n oc- 
 
 cur to induce him I 
 
 Kindersley, V. i 
 tioii between an indi\ Id 
 Locality or country. _ 
 in re Beed's Will. ; 
 
 it has been Bald that thei • 
 definition of the word ; 25 L. J. i 
 
 but D licil, App. and in 
 
 Laws 7::ii dissents from tble •. in 
 
 the latter work the Learned write) 
 "the attempts which have been made to de- 
 fine domicil. and of the eritb I 
 attempts, lead to results which may he sum- 
 med up as follows: 
 
 "First. Domicil, being a complex 
 must, from the nature of things, be capable 
 of definition. In other words, it is a term 
 which has a meaning, and that meaning can 
 be explained by analyzing it into its ele- 
 
 "Secondly. All the best definite 
 in making the elements of domidl "residence' 
 and 'animus matU //<//.' 
 
 "Thirdly. Several of these definitions — 
 such, for example, as Story's I'hillimore's, 
 or Vice-Chancellor Kindersley's — have suc- 
 ceeded in giving an explanation <>f the mean- 
 ing of domicil, which, even if not 
 in the most precise language, Is substantial- 
 ly accurate. 
 
 "Fourthly. The reason why English courts 
 have been inclined to held that no definition 
 Of domicil is satisfactory is. thai they have 
 found it impossible to reconcile any defini- 
 tion with three sets of judicial decisions or 
 dicta (an officer in the service of the 
 India Company; an Englishman acquiring 
 a domicil in another country; and a per- 
 son residing in another country for his 
 health). When, however, these sets a; 
 axnined, it is found thai two of them con- 
 sist of cases embodying views of domidl 
 
 new admitted to be err Whilst the 
 
 third sei .an be reconciled with all the best 
 definitions of domlciL" Dicey, Confl. I 
 735. 
 
 A person must have a domicfi for pur- 
 poses of taxation; Thorndike v. Citj of Boa- 
 ton, 1 Mete. (Mass.) 242; Borland v. City "f 
 Boston, 132 Mass, 89, 42 Am. Rep. 424; 
 Church \. R( ■.■ell, 4!i Me. 367; for Jurisdic- 
 tion; Andrews v. Andrews, i vs r. S. 14, 23 
 Sup. Ct 237, 47 L. Ed. 366; Bell v. Bell, 181 
 IT. S. 175, 21 Sup. Ct 551, 15 k. Ed. 804 ; 
 Streltwolf v. Streltwolf, 181 r. s. 179, 21 
 • 553, 46 I.. Ed. B67; Ayer v. Weeks, 
 
 65 N. H. 248, 1^ At!. Tins. Q j. [;. A . 71 ,; 
 
 23 Am. St. Ib'p. 37; for succession; Oilman 
 v. Gilman, 52 Me. 165, 83 Am. Dec. 502; 
 
 Merrill's Heirs v. Morrissett, 7d Ala. 433; 
 Dupuy v. Wurtz, 53 N. Y. 536; for adminis-
 
 DOMICIL 
 
 916 
 
 DOMICIL 
 
 tration ; Hindman's Appeal, 85 Pa. 466 ; for 
 pauper settlement ; Abington v. North Bridge- 
 water, 23 Pick. (Mass.) 177; for loyal char- 
 acter ; Desmare v. U. S., 93 U. S. 605, 23 L. 
 Ed. 959 ; for homestead exemption ; Shep- 
 herd v. Cassiday, 20 Tex. 24, 70 Am. Dec. 
 372; for attachment; Morgan v. Nunes, 54 
 Miss. 308; Hicks v. Skinner, 72 N. G. 1. A 
 person can, however, have but one domicil 
 at a time; Desmare v. U. S., 93 U. S. 605, 
 23 L. Ed. 959 ; Shaw v. Shaw, 98 Mass. 158 ; 
 Evans v. Payne, 30 La. Ann. 502; Dupuy v. 
 Wurtz, 53 N. Y. 556; Abington v. North 
 Bridgewater, 23 Pick. (Mass.) 170; but Cock- 
 burn (Nationality) says that it is quite pos- 
 sible for a person to have two domicils. See 
 Morse, Citizenship 100. And it is said that 
 a person may have both a civil and a com- 
 mercial domicil ; Dicey, Confl. Laws 740. 
 
 A bachelor cannot claim the place where 
 he takes his meals as his residence for vot- 
 ing purposes, when he keeps a business of- 
 fice and sleeping apartments in connection 
 ^therewith in another place, where he spends 
 most of his time; State v. Savre, 129 la. 
 122, 105 N. W. 3S7, 3 L. R. A. (N. S.) 455, 
 113 Am. St. Rep. 452; Behrensmeyer v. 
 Kreitz, 135 111. 591, 26 N. E. 704 (where an 
 engineer had a room in one state and took 
 his meals in another); Carter v. Putnam, 
 141 111. 138, 30 N. E. 6S1 (where an unmar- 
 ried man was in business in one town and 
 took the greater number of his meals with 
 his father, who lived in another, keeping 
 part of his clothing in each place) ; Long- 
 hammer v. Munter, 80 Md. 518, 31 Atl. 300, 
 27 L. R. A. 330. 
 
 Where a house was located on the line 
 between two towns, it was said by Shaw, C. 
 J., that if it could be ascertained where 
 the occupant usually slept, this would be a 
 preponderating circumstance, and, in the ab- 
 sence of other proof, decisive; Inhabitants 
 of Abington v. Inhabitants of North Bridge- 
 water, 23 Pick. (Mass.) 170. 
 
 Domicil may be either national or domes- 
 tic. In deciding the question of national 
 domicil, the point to be determined will be 
 in which of two or more distinct nationali- 
 ties a man has his domicil. In deciding the 
 matter of domestic domicil, the question is 
 in which subdivision of the nation does the 
 person have his domicil. Thus, whether a 
 person is domiciled in England or France 
 would be a question of national domicil, 
 whether in Norfolk or Suffolk county, a 
 question of domestic domicil. The distinc- 
 tion is to be kept in mind, since the rules 
 for determining the two domicils, though fre- 
 quently, are not necessarily, the same ; see 
 2 Kent 449; Story, Confl. Laws § 39; Westl. 
 Priv. Int. Law 15 ; Wheat. Int. Law 123. 
 
 The Romanists and civilians seem to at- 
 tach about equal importance to the place 
 of business and of residence as fixing the 
 place of domicil ; Pothier, Introd. Gen. Gout. 
 d'Orleans, c. 1, art. 1, § 8; Story, Confl. Laws 
 
 § 42. This may go far towards reconciling 
 the discrepancies of the common law and 
 civil law as to what law is to govern in re- 
 gard to contracts- 
 Legal residence, inhabitancy, and domicil 
 are generally used as synonymous ; Isham v. 
 Gibbons, 1 Bradf. Surr. (N. Y.) 70; Del 
 Hoyo v. Brundred, 20 N. J. L. 328; Bartlett 
 v. Brisbane, 2 Rich. (S. C.) 489; Moore v. 
 Wilkins, 10 N. H. 452; Cooper v. Galbraith, 
 3 Wash. C. C. 555, Fed. Cas. No. 3,193; 
 Crawford v. Wilson, 4 Barb. (N. Y.) 505; 
 Holmes v. Greene, 7 Gray (Mass.) 299; 
 Church v. Crossman, 49 la. 447 ; but much 
 depends on the connection and purpose; In 
 re Thompson, 1 Wend. (N. Y.) 43; Lyman v. 
 Fiske, 17 Pick. (Mass.) 231, 28 Am. Dec. 293; 
 Inhabitants of Exeter v. Inhabitants of 
 Brighton, 15 Me. 158 ; "residence" has a more 
 restricted meaning than "domicil ;" Chariton 
 County v. Moberly, 59 Mo. 238; Foster v. 
 Hall, 4 Humph. (Tenn.) 346 ; Borland v. Bos- 
 ton, 132 Mass. 89, 42 Am. Rep. 424. So also 
 in insolvency statutes ; Cobb v. Rice, 130 
 Mass. 231; those relating to administration 
 and distribution ; White v. Tennant, 31 W. 
 Va. 790, 8 S. E. 596, 13 Am. St. Rep. 896; 
 testamentary matters ; In re Zerega's Will, 
 20 N. Y. Supp. 417; eligibility for public 
 office; People v. Piatt, 50 Hun 454, 3 N. Y. 
 Supp. 367 ; attachment statutes ; Labe v. 
 Brauss, 12 Pa. Co. Ct. Rep. 255; and mat- 
 ters of jurisdiction ; De Meli v. De Meli, 120 
 N. Y. 485, 24 N. E. 996, 17 Am. St. Rep. 
 652; Bradley v. Fraser, 54 la. 289, 6 N. 
 W. 293; Penfield v. R. Co.. 29 Fed. 494. 
 Within divorce statutes, residence has been 
 construed as equivalent to domicil ; Graham 
 v. Graham, 9 N. D. SS, 81 N. W. 44; Downs 
 v. Downs, 23 App. D. C. 381; Hinds v. 
 Hinds, 1 la. 36 ; but it must be an actual 
 i-esidence; Hamill v. Talbott, 81 Mo. App. 
 210. Besides mere bodily presence with- 
 in the state, there must be the present bona 
 fide purpose of abiding there indefinitely as 
 a home; Graham v. Graham, 9 N. D. 88, 81 
 N. W. 44 ; mere length of time during which 
 a person has lived in a particular locality 
 is not controlling ; and if he remain there 
 longer than the period of time required to 
 give him a legal residence, but without any 
 intention of making it his permanent place 
 of residence, he does not become a resident 
 thereof; Sylvester v. Sylvester, 109 la. 401, 
 SO N. W. 547. 
 
 The term citizenship ordinarily conveys a 
 distinct idea from that of domicil ; State v. 
 Adams, 45 la. 99, 24 Am. Rep. 760; but it is 
 often construed in the sense of domicil ; Mor-- 
 ris v. Gilmer, 129 U. S. 315, 9 Sup. Ct. 289, 
 32 L. Ed. 690 ; Comitis v. Parkerson, 56 Fed. 
 556, 22 L. R. A. 148. 
 
 Two things must concur to establish dom- 
 icil, — the fact of residence and the intention 
 of remaining. These two must exist or must 
 have existed in combination ; State v. Hal- 
 lett, 8 Ala. 159 ; Crawford v. Wilson, 4 Barb
 
 D<)MI< IL 
 
 917 
 
 ■ IL 
 
 (N. Y.) 504; Shelton v. Tiffin, 6 How. (U. S.) 
 163, 12 l>. Bd. 387; Lyman v. Fiske, IT Pick. 
 (Mass.) 231, 28 Am. Dec. 293; Sainton v. 
 Halrston, 27 Miss. 704, 81 Am. Dec. 
 Leach v. Pillsbury, 15 N. II. 137; City of 
 Hartford v. Champion, 58 Conn. 268, 20 Atl. 
 471. There mnst have been an actual resi- 
 dence; Roosevelt v. Kellogg; 20 Johns. (N. 
 Y.i 208; Hennen v. Hennen, 12 La. 190; Des- 
 esbats v. Berquier, l Binn. (Pa.) 349, 2 Am. 
 Dec. 448. The character of the residence Is 
 of n" Importance; Inhabitants of Waterbor- 
 ough v. inhabitants of Newfield, 8 GreenL 
 (Me.) 203; Bradlej v. Lowry, Spec: 
 is. C.) 3, 39 Am. Dec. l 12; 5 E. L. & Eq. 52; 
 Veruet v. Bonvillain, 33 La. Ann. 1304; and 
 if it has once existed, mere temporary ab- 
 sence will not destroy it, bowever long 
 
 tinued; 7 CI. & F. 842; Sherw 1 v. Judd, 
 
 3 Bradf. Surr. (N. Y.i 267; Boyd v. Beck, 
 29 Ala. 703; Mclntyre v. Chappell, 4 Tex. 
 1ST: inhabitants of Knox v. inhabitants of 
 Waldoborough, 3 GreenL (Me.) 455; Shattuck 
 v. Maynard, 3 N. II. 12.°,; Fain v. Crawford, 
 91 Ga. 30, 16 S. E. 106; Chariton County v. 
 Moberly, 59 Mo. 238; Ross v. Ross, 103 Mass. 
 576; as in the case of a soldier in the army; 
 Inhabitants of Brewer v. Inhabitants of Lin- 
 naeus, 36 Me. 428; Crawford v. Wilson, 4 
 Barb. (N. y.i 522. And the law favors the 
 presumption of a continuance of domicil : 5 
 Ves. 750; President, etc., of Harvard Col- 
 lege v. Gore, 5 Pick. (Mass.) 370; White v. 
 Brown, 1 Wall. Jr. 217, Fed. Cms. No. 17,538; 
 Chaine v. Wilson, 1 Bosw. (N. Y.i 673; 
 Hood's Estate. 21 Pa. 106; Ferguson v. 
 Wright, 113 N. C. 537, is S. F. 691. The 
 original domicil continues till it is fairly 
 changed for another: ."» Madd. 232, 370; Jen- 
 nison v. Hapgood, 10 Pick. (Mass.) 77: state 
 v. Hallett, 8 Ala. 159; Layne v. Pardee, 2 
 Swan (Tenn.) 232; Holiiman's Heirs v. Pee- 
 bles, l Tex. "1*73; Burnham v. Rangeley, 1 
 Woodh. & M. 8, Fed. Cas. No. 2,176; inhabi- 
 tants of Exeter v. Inhabitants of Br 
 15 Me. 58; Baird v. Byrne, 3 Wall. Jr. 11, 
 Fed. Cas. No. 757; and revives on an Inten- 
 tion to return; 1 Curt. Eccl. 856; Frost v. 
 Brisbin, 19 Wend. (N. V.) 11, 32 Am. Dec. 
 423; The Venus, 8 Cra. (U. S.) 278, 3 L. Ed. 
 553; :: O. Rob. 12; The Friendschaft, 3 
 Wheat (U. S.) 14,4 L. Bd. 322; state v. Hal- 
 lett, 8 Ala. 159; Miller's Estate, 3 Rawle 
 (Pa.) 312, -i Am. Dec. 345; The Ann Green, 
 1 Gall. 27.".. Fed. Cas. No. lit: Catlin v. 
 Gladding, 4 Mas. 308, Fed. Cas. No. 2J520] 
 L. R. l li. L. Sc. H: in re Wrigley, 8 Wend. 
 (N. Y.) l.°>4. This principle of revival, how- 
 ever, is said not to apply where both domi- 
 clls are domestic; 6 .Madd. 379; Am. Lead. 
 Cas. 714. Where a young man left the state 
 of his original domicil to go tu another state 
 to fill a definite engagement tor a year and 
 for bis health, and at the end of Buch en- 
 gagement, returned to the domicil of his 
 origin, it was held that if he had ever re- 
 nounced his domicil of origin, he had regain- 
 
 ed it 1 y : 
 ha<l B 
 
 - 
 
 Mer< 
 
 former domicil; Bi 
 
 Eq. (S. C.) l. 39 Am. I 
 51 1 : Inhabitanti 
 - I 
 
 l I art I 
 alta, 4 Cal. 17.".; Bart! 
 V.uk. 5 Sandf. (N. v.i li ; Prl 
 
 L 291 ; State v. i 
 Mo. 878 : 
 
 of domicil when the aal are • 
 either is Inconsistent with, or rebuts th 
 suiii|itiiin of tip •• of an at 
 
 Dom. Rule 19/; 34 L. ' 
 212. Nor is inteini. it uting d 
 
 alone, onless accompanied b3 
 furtherance of such intention; Chaine v. 
 Wil>nn. 1 Bosw. i\. Y.i 673; B 
 Barley, 5 Md. 186, 59 Am Dec. 107; Wright 
 
 v. Boston, T-'ii Mas.-. 161 : 
 
 Pa. 201 : Morris v. Gilmer, 129 i B 
 Sup. Ct 289, 32 L. Bd. 690. a subs quent 
 may be grafted <>n a temporary 
 
 ; 2 C. Rob. 322. Removal to a place 
 with an Intention of remaining 
 an Indefinite period and as a 
 
 t domicil, ites domicil, though 
 
 be a Boating Intention to return; 2 B. 
 A: P. 228; 3 Hagg. Eccl. 374. Both b 
 ancy and Intention are to a greal t 
 matters of fact, and may be 
 slight Indical Ions; P< a i ce v. State, 1 - 
 (Tenn 135; Berry v. Hull, 
 
 (i N. M 643, 30 a Btatute as to ac- 
 
 quiring a residence will be Btrictly 
 and where a person Bpends part of la- 
 in one state and the other part at' his home 
 in another, and where he has do busin 
 the former but appears to be gaining a resi- 
 dence Tor the purpose of divorce only, he Is 
 
 not a bona jidc resident ; Albee v. All 43 
 
 111. App. 370. The place where a person Uvea 
 is presumed to be the place of d Idl until 
 
 • stablish the contrary ; 2 B. A P 
 n. : 2 Kent 532: Shepard v. Wright, 118 N. 
 Y. 582, 21 N. E. 724. a decedent is pret 
 to have been domiciled at the place where he 
 died; King v. D. s.. 27 Ct CL 529; - 
 
 \'es. Jr. 750; but where he was :i DO] 
 dent of tl r many years and until 
 
 within two months prior to his death, the 
 presumption Is thai be was a Don-resident 
 at the time of his death; Price v. Price, 156 
 Pa. 617, U7 Atl. 29L 
 
 Proof of domicil does aot depend upon 
 any particular fact, but upon whether all 
 the facts and circumstances taken together 
 tend to establish the fact; Inhabitant 
 Abington v. Inhabitants of North Bridge- 
 water, 23 Tick, i Mas Appeal of Hind- 
 man. 85 Pa. 166. Engaging in business and 
 
 in a particular place are eviden 
 domicil there.; Myr. Prob. Cal. 237; voting
 
 DOMICIL 
 
 918 
 
 DOMICIL 
 
 in a place is evidence, though not conclu- 
 sive ; Hayes v. Hayes, 74 111. 312 ; Inhabitants 
 of East Livermore v. Inhabitants of Farm- 
 ington, 74 Me. 154; Easterly v. Goodwin. 35 
 Conn. 279, 95 Am. Dec. 237 ; Smith v. Croom, 
 7 Fla. 81; Hewes v. Baxter, 48 La. Ann. 
 1303, 20 South. 701, 36 L. R. A. 531. That it 
 will be given decisive weight, see Wolf v. 
 McGavock, 23 Wis. 51S ; that it will turn the 
 scale in a case where a man has two places 
 of residence at different times of the year, 
 see Hairston v. Hairston, 27 Miss. 704, 61 
 Am. Dec. 530; Chariton County v. Moberly, 
 59 Mo. 23S. The mere act of registration as 
 a voter is not conclusive as to change of resi- 
 dence; Mallard v. Bank, 40 Nebr. 7S4, 59 N. 
 W. 511; but see Fulham v. Howe, 60 Vt. 351, 
 14 Atl. 652, apparently contra; is a circum- 
 stance to be cousidered with others; Lyman 
 v. Fiske, 17 Pick. (Mass.) 231, 38 Am. Dec. 
 293 ; so of a poll tax ; Chase v. Chase, 66 N. 
 H. 588, 29 Atl. 553; payment of taxes; 
 so is the execution of one's will in accord- 
 ance with the laws of a particular place; 
 Dupuy v. Wurtz, 53 N. Y. 556; attending a 
 particular church ; Fulham v. Howe, 62 Vt. 
 386, 20 Atl. 101. But the ownership of real 
 estate in a place not coupled with residence 
 therein is of no value; Price v. Price, 156 
 Pa. 617, 27 Atl. 291; Holliman's Heirs v. 
 Peebles, 1 Tex. 673. Declaring an intent to 
 become a citizen is not sufficient to prove 
 an intention to adopt a domicil in the place 
 where the declaration is made; Bremme's 
 Estate, 13 Pa. C. C. R. 177. Declarations 
 made at the time of change of residence are 
 evidence of a permanent change of domicil, 
 but a person cannot, by his own declara- 
 tions, make out a case for himself; Doyle v. 
 Clark, 1 Flipp. 536, Fed. Cas. No. 4,053 ; Viles 
 v. City of Waltham, 157 Mass. 542, 32 N. E. 
 901, 34 Am. St. Rep. 311 ; Ayer v. Weeks, 65 
 N. H. 248, IS Atl. 1108, 6 L. R. A. 716, 23 
 Am. St Rep. 37 ; but see as to the latter, L. 
 R. 2 P. & M. 435. Declarations of the party 
 are admissible to prove domicil; Gundlin v. 
 Packet Co., 6 Misc. 620, 26 N. Y. Supp. 73; 
 Hulett v. Hulett, 37 Vt. 586 ; Reeder v. Hol- 
 comb, 105 Mass. 94 ; Rucker v. Bolles, 80 Fed. 
 504, 25 C. C. A. 600; Kemna v. Brockhaus, 
 5 Fed. 762, 10 Biss. 128 ; but acts are said to 
 be more important than words; Firth v. 
 Firth, 50 N. J. Eq. 137, 24 Atl. 916. 
 
 A finding that a person intended to fix his 
 domicil in the city wherein he was taxed 
 for personal property was sustained on evi- 
 dence that he had actually resided there for 
 four years and had built an expensive house 
 with the evident intention of making it his 
 permanent home ; and this against his own 
 testimony as to his inteution; Beecher v. 
 Common Council of Detroit, 114 Mich. 228, 72 
 N. W. 206. 
 
 Domicil is said to be of three kinds, — 
 domicil of origin, or by birth, domicil by 
 choice, and domicil by operation of law. The 
 place of birth is the domicil by birth if at 
 
 that time it is the domicil of the parents; 
 2 Hagg. Eccl. 405 ; Hardy v. De Leon, 5 Tex. 
 211. See Sasportas v. De La Motta, 10 Rich. 
 Eq. (S. C.) 38. If the parents are on a jour- 
 ney, tbe actual domicil of the parents will 
 generally be the place of domicil; 5 Yes. 
 750; Westl. Priv. Int. Law 17. Children of 
 ambassadors; 14 Beav. 441; 31 L. J. 24, 391; 
 and consuls; L. R. 1 Sc. App. 441; 4 P. D. 1; 
 and children born on seas, take the domicil 
 of their parents ; Story, Confl. Laws § 48. 
 
 The domicil of an illegitimate child is that 
 of the mother ; 23 L. J. Ch. 724 ; Inhabitants 
 of Houlton v. Inhabitants of Lubec, 35 Me. 
 411 ; Inhabitants of Blackstone v. Inhab- 
 itants of Seekonk, 8 Cush. (Mass.) 75; but 
 it has been thought better to "regard the fa- 
 ther who acknowledges his illegitimate chil- 
 dren, or who is adjudged to be such by the 
 law, as imparting his domicil to such chil- 
 dren;" Whart. Confl. L. 37; L. R. 1 Sc. 
 App. 441; see Westl. Priv. Int. Law 272, 
 where it is said that the place of birth of a 
 child whose parents are unknown, is its dom- 
 icil ; if that is unknown, the place where it 
 is found. The domicil of a legitimate child 
 is that of its father; L. R. 1 P. & D. 611 ; In- 
 habitants of Freetown v. Inhabitants of Taun- 
 ton, 16 Mass. 52; Lacy v. Williams, 27 Mo. 
 280 ; Kennedy v. Ryall, 67 N. Y. 379 ; Dresser 
 v. Illuminating Co., 49 Fed. 257; Kelly v. 
 Garrett, 67 Ala. 30-4 ; 2 Hagg. Eccl. 405 ; Blu- 
 menthal v. Tannenholz, 31 N. J. Eq. 194; 
 Desesbats v. Berquier, 1 Binn. (Pa.) 349, 2 
 Am. Dec. 448; 5 Ves. 786; see De Jarnett 
 v. Harper, 45 Mo. App. 415. Westlake (Int. 
 Law) maintains that a posthumous child 
 takes its mother's domicil; but see Whart. 
 Confl. Laws § 35. The domicil by birth of a 
 minor continues to be his domicil till chang- 
 ed; Overseers of Paterson Tp. v. Overseers 
 of Byram Tp., 23 N. J. L. 394; Hiestand v. 
 Kuns, 8 Blackf. (Ind.) 345, 46 Am. Dec. 481. 
 See Dresser v. Illuminating Co., 49 Fed. 257. 
 It changes with that of the father ; Allgood 
 v. Williams, 92 Ala. 551, 8 South. 722; La- 
 mar v. Micou, 112 U. S. 452, 5 Sup. Ct. 221, 
 28 L. Ed. 751 ; even though there was an 
 agreement between the parents upon their 
 separation that the mother should have the 
 control of the child ; Lanning v. Gregory, 
 100 Tex. 310, 99 S. W. 542, 10 L. R. A. (N. S.) 
 690, 123 Am. St. Rep. 809. 
 ' A student does not change his domicil by 
 residence at college; Granby v. Amherst, 7 
 Mass. 1 ; Fry's Election Case, 71 Pa. 302, 10 
 Am. Rep. 698; Sanders v. Getchell, 76 Me. 
 158, 49 Am. Rep. 606; Hart v. Lindsey, 17 
 N. II. 235, 43. Am. Dec. 597; and a prisoner 
 removed from his domicil for temporary im- 
 prisonment does not acquire a new domicil ; 
 Barton v. Barton, 74 Ga. 761 ; Young v. Pol- 
 lak, 85 Ala. 439, 5 South. 279; Topsham v. 
 Lewiston, 74 Me. 237, 43 Am. Rep. 5S4 ; or 
 a convict for a long term ; Topsham v. Lew- 
 iston, 74 Me. 237, 43 Am. Rep. 584; or a
 
 DOMICIL 
 
 919 
 
 DOMICIL 
 
 fugitive from justice though intending never 
 to return; Cobb v. Rice, 130 Mass, 231; but 
 see Young v. Pollak, 85 Ala. 4:;:», 5 Smith. 
 279. A change of residence for purposes of 
 health does imi generally establish a new 
 domicil; Ex parte Blumer, 27 Tex. 734 ; Still 
 v. Woodville, 38 .Miss. 646. Absence in the 
 service of the government does not ne 
 rily affect the domicil; Hannon v. Grizzard, 
 89 N. C. 115; Dennis v. State, 17 Fla. 389; 
 In re Town of Highlands, 22 N. Y. Supp. 
 137; depending, of course, on the Intention 
 of the party; Darragh v. Bird, :: <•■ 
 Wood v. Fitzgerald, id. 568; Mooar v. Har- 
 vey, 128 Mass. 219. A diplomatic representa- 
 tive residing abroad does not change hisdom- 
 icil ; Com. v. Jones, 12 Pa. 365; or a con- 
 sul; Wooldridge v. Wilkins, :; How. (Miss.) 
 360; or one in the military or naval service; 
 Brewer v. Linnaeus, 3G Me. 428; Mooar v. 
 Harvey, 128 Mass. 219; nor a sailor absent 
 on duty; Hallet v. Bassett, inn Mas-. L67. 
 
 It was held, however, in Tennessee, on a 
 suit for divorce, that the acquisition of an 
 actual home in Washington, by the petition- 
 er, with the intention of remaining there for 
 an indefinite time, countervailed declara- 
 tions of intention to return to Tennessee 
 upon the happening of an uncertain future 
 event; Sparks v. Sparks, 114 Tenn. 666, 88 S. 
 W. 173; so one who left a state for the par- 
 pose of teaching school (the question arising 
 as to the statute of limitations); Dlgnam v. 
 Shaft', 51 Wash. 412, 98 Pac. 111::. 22 L. K. A. 
 (N. S.) 996 ; Redfearn v. Hines, 123 Ga. 391, 
 51 S. E. 407. 
 
 The domicil of origin always remains in 
 abeyance, as it were, to be resorted to the 
 moment the domicil of choice is given up. 
 If one leaves a domicil of choice, with the 
 intention of acquiring a new one, his domi- 
 cil of origin attaches the moment he leaves 
 the former, and persists until he acquires 
 the latter ; L. R. 1 Sc. App. 441 ; Marks v. 
 Marks, 75 Fed. 321 ; Dicey, Dom. 02. This, 
 however, can only be true of national, as dis- 
 tinguished from local domicil ; when a local 
 domicil of choice is acquired, it certainly per- 
 sists until a new one is adopted. 
 
 Domicil by choice is that domicil which a 
 person of capacity of his free will selects to 
 be such. 
 
 Domicil is conferred in many eases by op- 
 eration of lair, either expressly or conse- 
 quentially. The domicil of the husband is 
 that of the wife: Hanberry v. Hanberry, 2:1 
 Ala. 719; McAfee v. University, 7 Bush (Ky.) 
 135; Wingfleld v. Rhea, 77 Ga. 84; Babbitt 
 v. Babbitt, 69 m. -77: Mason v. Homer, L05 
 Mass. 116; Baldwin v. Flagg, 13 X. .1. I.. 495; 
 7 II. L. C. 390; Anderson v. Watt, 138 U. S. 
 694, 11 Sup. Ct. 449, 34 L. Ed. 1<>7V A wo- 
 man on marriage takes the domicil of hex 
 husband, and a husband, if entitled t" a di- 
 vorce, may obtain it though (he wife lie ac- 
 tually resident in a foreign state; 2 CI. & 
 
 : Parrett v. Palmer, S End App. 356, 
 35 X. K. 71::. 52 Am. SI lamer 
 
 v. Turner. 
 
 L62, 23 Aj 
 Wis. 195, 14 X. W. • 
 But, where it I 
 the wife may acquire 8 
 which may be in the 
 ver v. Wilson, "J Wall. ( l 
 604; DutChi 
 
 v. « !row, ".7 Mb. 204; < man, 
 
 129 III. 386, 21 X. 1:. B06; Bartx t 
 21 How. (U. B.) 582, 16 L. Ed. 22( 
 2 CI. & F. 488; Dii • 
 
 :i her husband's domicil for the p 
 of obtaining a divorce; Ma-ten v. Mash 
 x. 11. 159; Williamson v. Parialen, 1 . 
 Ch. (X. y.i 389; fickle v. Fickle ■ 
 (Tenn.) 203 ; P< rsoi \. Pel - in, 6 1 : imphr. 
 ■ 1 is : Mcl> rmott'e Appeal, B W. & S. 
 
 (Pa.) 251. See w 1 v. Wood, 54 Ark. 172, 15 
 
 s. w. 459; 30 Am. L. Rev. 604; I 
 
 a wife divorced <i metua ei thoro may ac- 
 quire a separate ie her hus- 
 band in the United state- courts; Barber v. 
 
 :•. 21 How. (U. 8.) 582, 16 L. Ed 
 so where the wife Is deserted; 
 Moffatt, 5 CaL 280; 2 B. I.. A Eq. 52; 2 
 ."■7.;: but the right to do BO springs from 
 by for it- • Hunt v. Hunt, 
 
 72 X. Y. 217, 28 Am Rep. L29; Atherton v. 
 Atherton, 155 X. Y. 129, 19 X. B. 933, 
 B. A. 291, 63 Am. St. Rep. 650; CI • ever v. 
 Wilson, 9 Wall. (U. S.i 123, 19 H. Ed. 604; 
 Haddock v. Haddock. 201 1 . I Sup. 
 
 Ct. 525, 50 L. Ed 867, 5 Ann. Caa, 1. The 
 wife of an insane person may change her 
 domicil; McKnight v. Dudley, 148 
 78 C. C. A. 162. 
 
 Where a husband and wife had an estab- 
 lished permanent residence in Minn 
 and the wife was compelled by her husband's 
 threats to remove to Massat I mpli- 
 
 ance with his commands was held oot to con- 
 stitute an abandonment of her domicil in 
 Minnesota, though she remained In v 
 chusetts several yeai tel v. Bechtel, 
 
 1(U Minn. 511, 112 X. w. 883, 12 I.. 1:. A. 
 1 . X. s.i 1100; so a wife's 1 from the 
 
 city, after being deserted by her husband, 
 without the intention of making her home 
 elsewhere, was held not sufficient to <■': 
 her domicil in a suit for divorce; Humphrey 
 v. Humphrey, 115 Mo. App. 361, :»1 s. W. 105. 
 Where the domicil of matrimony was in a 
 
 particular state, and the husband abandoned 
 
 his wife and went into another state to avoid 
 his marital obligations, such other state did 
 not become a new domicil of matrimony, 
 therefore was 1 treated as tl 1 
 
 tual or constructive domicil of the wife; Had- 
 
 . 'l O. >. 662, 26 Si; 
 525, 50 L Ed. i .1. 
 
 A British subject hern in England had re- 
 sided in France under such circumstances 
 that the English law would deem him domi-
 
 DOMICIL 
 
 920 
 
 DOMICIL 
 
 ciled there, although he did not acquire a 
 domicil which the French law would recog- 
 nize. He died leaving a will disposing of 
 movables in England; held that the will 
 should be governed by the English law; 22 
 T. L. R. 711, following [1903] 1 Ch. 821. Un- 
 der somewhat similar circumstances, the per- 
 sonal property of a decedent was held to be 
 subject to the law of France, which recog- 
 nizes a conjugal domicil analogous to what 
 is known in our law as a matrimonial domi- 
 cil, and is distinguished from that domicil 
 which is required for the purpose of con- 
 tracting a lawful marriage; Harral v. Har- 
 ral, 39 N. J. Eq. 279, 51 Am. Rep. 17, where 
 it was held that the government authoriza- 
 tion required by the French code to estab- 
 lish a domicil in France is not necessary to 
 establish a conjugal domicil, citing Le Bre- 
 ton v. Nouchet, 3 Mart. O. S. (La.) 60, 5 Am. 
 Dec. 736 ; Kneeland v. Ensley, Meigs (Tenn.) 
 620, 33 Am. Dec. 168; Glenn v. Glenn, 47 
 Ala. 204; Mason v. Homer, 105 Mass. 116, 
 to the point that with respect to the prop- 
 erty rights of husband or wife in the person- 
 al property of the other, derived from the 
 marriage relation, the place where the mar- 
 riage was celebrated is not decisive ; these 
 rights depend on the matrimonial domicil. 
 An English case held that where the matri- 
 monial domicil was English, the English 
 courts had jurisdiction to entertain a suit 
 for judicial separation, though the domicil of 
 the parties was German; 23 T. L. R. 539. 
 So in suits for nullity, residence and not 
 domicil is the test of jurisdiction ; 48 L. J. 
 P. 1 ; 71 id. 74 ; [1902] P. 143. 
 
 Divorce is regulated by the law of the 
 domicil of the parties; [1895] A. C. 517. A 
 domicil for this purpose requires both the 
 animus and the factum ; L. R. 1 H. L. Sc. 
 307 ; and the intention is itself a question of 
 fact, to be determined by evidence, the dec- 
 larations of the party not being conclusive ; 
 [1S92] 3 Ch. 180. 
 
 The domicil of a widow remains that of 
 her deceased husband until she makes a 
 change; Story, Confl. Laws § 46; Mifflin Tp. 
 v. Elizabeth Tp., 18 Pa. 17. 
 
 Commercial domicil. There may be a com- 
 mercial domicil acquired by maintenance of 
 a commercial establishment in a country, in 
 relation to transactions connected with such 
 establishments; 1 Kent 82; Lau Ow Bew v. 
 U. S., 144 U. S. 47, 12 Sup. Ct. 517, 36 L. Ed. 
 340 ; U. S. v. Chin Quong Look, 52 Fed. 203. 
 See Dicey, Dom. 341 ; The Dos Hermanos, 2 
 Wheat. (U. S.) 76, 4 L. Ed. 1S9. 
 
 This is such a residence in a country for 
 purposes of trade as makes a person's trade 
 or business contribute to or form part of the 
 resources of such country. The question is 
 whether he is or is not residing in such coun- 
 try with the purpose of continuing to trade 
 there; Dicey, Confl. Laws 737. The inten- 
 tion of remaining in the commercial domicil 
 
 is the intention to continue to reside and 
 trade there for the present ; id. 738. Com- 
 mercial domicil is not forfeited by temporary 
 absence at the domicil of origin; Lau Ow 
 Bew v. U. S., 144 U. S. 63, 12 Sup. Ct. 517, 36 
 L. Ed. 340 ; but if a person go into a foreign 
 country and engage in trade there, he is, by 
 the law of nations, to be considered a mer- 
 chant of that country, and subject for all 
 civil purposes, whether that country be hos- 
 tile or neutral ; 3 B. & P. 113 ; 3 C. Rob. 12 ; 
 1 Hagg. 103, 104; U. S. v. Gillies, 1 Pet. C. 
 C. 159, Fed. Cas. No. 15,206; Murray v. The 
 Charming Betsy, 2 Cra. (U. S.) 64, 2 L, Ed. 
 208 ; and this whether the effect be to ren- 
 der him hostile or neutral in respect to his 
 bona fide trade ; 1 Kent 75 ; 3 B. & P. 113 ; 
 
 1 C. Rob. 249. 
 
 Corporations. If the term domicil can ap- 
 ply to corporations, they have their domicil 
 wherever they are created; L. R. 1 Ex. 428; 
 5 H. L. 416 ; City of St. Louis v. Ferry Co., 
 40 Mo. 5S0 ; see North & South Rolling Stock 
 Co. v. People, 147 111. 234, 35 N. E. 608, 24 
 L. R. A. 462 ; irrespective of the residence 
 of the officers or the place where the business 
 is transacted; Merrick v. Van Santvoord, 34 
 N. Y. 208. If the charter does not fix the 
 domicil, and the directors hold their meetings 
 in several places, the domicil for taxing pur- 
 poses will be where the by-laws require the 
 stockholders to hold their meetings; Grundy 
 County v. Coal Co., 94 Tenn. 295, 29 S. W. 
 116. The New York rule is that it is to be 
 where the principal place of business is sit- 
 uated; Austen v. Telephone Co., 73 Hun 96, 
 25 N. Y. Supp. 916. The place where the 
 business is done and where its personal prop- 
 erty is situated is the situs of such property 
 for taxation ; Atlantic & P. R. Co. v. Lesueur, 
 
 2 Ariz. 428, 19 Pac. 157, 1 L. R. A. 244, 2 
 Interst. Com. Rep. 1S9. 
 
 A permanent foreign agency of an insur- 
 ance company may create an independent 
 domicil in the place of the agency, for the 
 purpose of enforcing legal obligation ; Mar- 
 tine v. Life Ins. Soc, 53 N. Y. 339, 13 Am. 
 Rep. 529. See Ohio & M. R. Co. v. Wheeler, 
 1 Black (U. S.) 286, 17 L. Ed. 130. See For- 
 eign Corporation; Citizen. 
 
 Change of domicil. Any person, sui juris, 
 may make any bona fide change of domicil 
 at any time; 5 Madd. 379; President, etc., 
 of Harvard College v. Gore, 5 Pick. (Mass.) 
 370 ; 35 E. L. & Eq. 532. And the object of 
 the change does not affect the right, if it be a 
 genuine change with real intention of per- 
 manent residence; Cooper v. Galbraith, 3 
 Wash. C. C. 546, Fed. Cas. No. 3,193; Case 
 v. Clarke, 5 Mas. 70, Fed. Cas. No. 2,490; 
 Catlett v. Ins. Co., 1 Paine 594, Fed. Cas. No. 
 2,517 ; Young v. Pollak, 85 Ala. 439, 5 South. 
 279. Domicil is not lost by going to another 
 state to seek a home, but continues until the 
 home is. obtained ; Labe v. Brauss, 12 Pa. Co. 
 Ct R. 255. Where the parties had abandoned
 
 DOMICIL 
 
 921 
 
 DOMICIL 
 
 their domicil and were on their way to their 
 future home, the former domicil was not 
 lost before their arrival at the place of the 
 new domicil; Shaw v. Shaw, OS .Mass. 158. 
 L'nlil a new domicil is obtained, the old one 
 is not lost; Desmare v. I . S., '■>'■> U. S. 005, 
 23 L. Ed. 959; Inhabltanta of Monson v. in- 
 habitants oi Fairfield, 55 Me. 117 ; but is 
 presumed to continue until shown to have 
 been changed; xVnderson v. Watt, 138 U. S. 
 694, 11 Sup. Ct. 449, 34 L. Ed. 107S ; Des- 
 mare v. D. S., 93 U. S. 005, 23 L. Ed 
 
 To constitute a change of domkil three 
 things are essential: (1) Residence in anoth- 
 er place ; (2) an intention to abandon the 
 old domicil ; and (3) an intention of acquir- 
 ing a new one; or as some writers express it 
 there iuust be an animus nan li and 
 
 an animus manendi, or animus ct factum; 
 Berry v. Wilcox, 44 Neb. 82, 62 N. W. 249, 48 
 Am. St. Rep. 700; Hayes v. Hayes, 74 111. 
 312; 34 L. J. Ch. N. S. 212; 10 11. L. Cas. 
 272; In re Beed's Will, 4S Or. 500, S7 Pac. 
 763. 
 
 The factum is the transfer of the bodily 
 presence, and the animus is the Intention of 
 residing permanently or lor an indefinite 
 period. A wife's removal into another state 
 for the benefit of her husband's health and 
 a residence there for twelve years will not 
 change the original domicil ; In re Reed's 
 Will, 48 Or. 500, 87 Pac. 763; Ensor v. Graff, 
 43 Md. 291; Cruger v. Phelps. Jl .Misc. 252. 
 47 N. Y. Supp. 01; Still v. Corp. of Wood- 
 ville, 38 Miss. 646 ; 10 CI. & F. 42 ; Isham v. 
 Gibbons, 1 Bradf. (N. Y.) 69. In 73 L. J. K. 
 B. N. S. 613, reversing 85 L. T. N. S. 50S. 65 
 J. P. 819, the House of Lords held that the 
 burden of proving that one whose domicil of 
 origin was in the United States had changed 
 his domicil was not overcome by proof that 
 he originally came to England on account of 
 his health, and lived there for twenty-seven 
 years, describing himself as an American 
 citizen, purchasing property in the United 
 States in the hope of finally making his home 
 there, etc. The Lord Chancellor said that if 
 the decedent intended to make England his 
 permanent home, that country would become 
 his domicil, notwithstanding that such in- 
 tention was formed on account of the condi- 
 tion of his health, but that he could not 
 bring himself to a conclusion from the facts 
 whether the decedent entertained that inten- 
 tion or not, and expressly rested his opinion 
 against a change of domhil upon the fact 
 that the burden was upon the party assert- 
 ing a change of domicil to establish it. 
 
 In the acquisition of a new domidl, more 
 Is required than a mere change oi' residence; 
 there must be a fixed intention to renounce 
 birthright in the place of original domicil and 
 to adopt the political and municipal status in- 
 volved by permanent residence of choice 
 elsewhere; [1000] A. 0. 56; 94 T„ T. 33 (an 
 Englishman who lived the greater part of 
 
 each year for thirty years in Scotland ) ; and 
 a case in 23 Ch. Div. 7/./J., denii iuisi- 
 
 tion of a domicil of choice bj . sub- 
 
 ject in any part of China, on account of 
 differences of rel 
 
 L. O. EL 440, whi ( British diplo- 
 
 matic agents, etc. ag in India I 
 
 en that their . 
 domicil is not lost. But it is held in Mather 
 v. Cunningham, 105 Me. 326, 74 A 
 I>. l;. A. . N. 8.) 761, 18 . that 
 
 the usual law of domidl applies to an '■ 
 can as to acquiring a domicil in 
 
 A native of the United states, who had 
 lived twenty-seven years in England, but al- 
 ways de» ribed himself as an American citi- 
 zen, and had bought property in Baltimore 
 in the hope of finally making his home there, 
 though from the siate of his health a VI 
 
 the Atlantic was impracticable, was 
 held not to have abandoned bis domicil of 
 origin; [1904] A. C. 287. But a Scotchman 
 who for thirty years had lived in « 
 where he was engaged in business, and who 
 Dever spoke of any intention of taking up 
 his residence In Great Britain, but frequently 
 expressed his dislike for the Scottish cli- 
 mate and people, was held to have, anima ct 
 facta, abandoned his domicil of origin in 
 Scotland and acquired a domidl ol 
 ■;i ; [1901 . I ' 
 
 There are limitations to the pow 
 change a minor child's domicil in the case of 
 alien parents; 5 East 221; r Mer- 
 
 cein, S Paige Ch. (X. Y.) 47; 2 Kent 
 and of the mother, if a widow ; Bur. 
 Carlisle v. Tuttle. 30 Ala. 613; E e BrOWU 
 v. Lynch, 2 Bradf. Burr. (N. Y.) 214; De 
 Jarnett v. Harper, 45 Mo. App. 415; how- 
 ever, if she acquires a new domicil by re- 
 marriage, the child's domicil does not change; 
 Ryall v. Kennedy, 40 N. Y. Bup. Ct 347; 
 Brown v. Lyneh, 2 Bradf. Surr. (N. Y.i 214; 
 Inhabitants of Walpole v. Inhabitants of 
 
 ehead, 8 Cush. (Mass.) 528; Al 
 Thomason, 11 Humphr. (Tern ! ,54 Am. 
 Dec. 55. See [1893] •". Ch. 490; Lamar v. 
 Micou, 112 r. S. 152, 5 Sup. Ct 221, 
 Ed 7oi ; Johnson v. Copeland's Adm*r, 35 
 Ala. 521. If a father abandons his children, 
 who are* cared for and live with their grand- 
 mother for several years, and uent- 
 ly removes them against her will, the resi- 
 dence of the children is not changed : Guard- 
 ianship of Vance, 92 Cal. LOS 
 
 or v. illuminating Co., 49 Fed. 257. 
 The guardian is said to have the same 
 power over his ward that a parent ha - 
 his child : Holyoke v. Has'.. ins. .-, pi< 
 •jo. 16 Am. 2 : Wheeler v. Hoi 
 
 v l: - Ohio 
 
 i Binn. 349, n. : 2 Kent 237. But see 
 contra. Iliostand v. Kir ckf. (Ind.) 
 
 1. The point is not set- 
 tled in England; Dicey, Horn. 133. See 3 
 Mer. 67; Appeal of Taney, 9 W. N. C. (Pa.)
 
 DOMICIL 
 
 922 
 
 DOMICLL 
 
 564. "It has been generally held that a 
 guardian can change the ward's domicil 
 from one county to another in the same 
 state; Anderson v. Anderson's Estate, 42 Vt 
 350, 1 Am. Rep. 334; L. R. 5 Q. B. 325. It 
 is doubtful, to say the least, whether the 
 guardian can remove the ward's domicil out 
 of the state in which he was appointed; L. 
 R. 12 Eq. 617 ; Daniel v. Hill, 52 Ala. 430. A 
 guardian appointed in a state where the 
 ward is temporarily residing cannot change 
 the ward's domicil from one state to anoth- 
 er ;" Lamar v. Micou, 112 U. S. 452, 5 Sup. 
 Ct. 221, 28 L. Ed. 751. But see Woodward 
 v. Woodward, 87 Tenn. 644, 11 S. W. 892. 
 The more appointment of a guardian will 
 not prevent the ward from changing his dom- 
 icil where he has sufficient mental capacity 
 to do so ; Mowry v. Latham, 17 R. I. 480, 23 
 Atl. 13; Talbot v. Chamberlain, 149 Mass. 
 57, 20 N. E. 305, 3 L. R. A. 254. It may be 
 considered questionable whether the guard- 
 ian can change the national domicil of his 
 ward ; 2 Kent 226 ; Story, Conn. Laws § 506. 
 The domicil of a lunatic may be changed 
 by the direction or with the assent of his 
 guardian; Holyoke v. Haskins, 5 Pick. 
 (Mass.) 20, 16 Am. Dec. 372; Anderson v. 
 Anderson's Estate, 42 Vt. 350, 1 Am. Rep. 
 334; In re Kingsley, 160 Fed. 275; contra, 
 Inhabitants of Pittsfield v. Inhabitants of 
 Detroit, 53 Me. 442. See L. R. 1 P. & M. 611 ; 
 3 Ves. Jr. 198 ; 9 W. R. 764. If the incom- 
 petent has enough mind left to form an ani- 
 mus manendi, the assent of the guardian to 
 a change of domicil has been held immate- 
 rial ; Appeal of Culver, 48 Conn. 165; Tal- 
 bot v. Chamberlain, 149 Mass. 57, 20 N. E, 
 305, 3 L. R. A. 254 ; see 22 Harv. L. R. 220. 
 The husband may not change his domicil 
 after committing an offence which entitles 
 the wife to a divorce, so as to deprive her of 
 her remedy; Harteau v. Harteau, 14 Pick. 
 (Mass.) 181, 25 Am. Dec. 372; Republic of 
 Texas v. Skidmore, 2 Tex. 261. And it is 
 said the wife may not in the like case ac- 
 quire a new domicil; Frary v. Frary, 10 N. 
 H. 61, 32 Am. Dec. 395; Harding v. Alden, 9 
 Greenl. (Me.) 140, 23 Am. Dec. 549; Sawtell 
 v. Sawtell, 17 Conn. 284 ; Fickle v. Fickle, 5 
 Yerg. (Tenn.) 203; Richardson v. Richard- 
 son, 2 Mass. 153 ; Tolen v. Tolen, 2 Blackf. 
 (Ind.) 407, 21 Am. Dec. 742. 
 
 The law of the place of domicil governs as 
 to all acts of tbe parties, when not controlled 
 by the lex loci contractus or lex rei sita>. 
 Personal property of the woman follows the 
 law of the domicil upon marriage. It pass- 
 es to the husband, if at all, in such cases as 
 a legal assignment by operation of the law 
 of domicil, but one which is recognized ex- 
 tra-territorially ; 2 Rose 97 ; Holmes v. Rein- 
 sen, 20 Johns. (N. Y.) 267, 11 Am. Dec. 269; 
 Story, Confl. Laws § 423. 
 
 The state and condition of the person ac- 
 cording to the law of his domicil will gen- 
 erally, though not universally, be regarded 
 
 in other countries as to acts done, rights ac- 
 quired, or contracts made in the place of his 
 native domicil; but as to acts, rights, and 
 contracts done, acquired, or made out of his 
 domicil, the lex loci will generally govern in 
 respect to his capacity and condition ; 2 
 Kent 234. See -Lex Loci. 
 
 The disposition of, succession to, or distri- 
 bution of the personal property of a de- 
 cedent, wherever situated, is to be made in 
 accordance with the law of his actual domi- 
 cil at the time of his death ; 8 Sim. 310 ; 
 Grattan v. Appleton, 3 Sto. 755, Fed. Cas. 
 No. 5,707 ; Rankin v. Holloway, 3 Smedes & 
 M. (Miss.) 617; Bradley v. Lowry, Speers, 
 Eq. (S. C.) 3, 39 Am. Dec. 142; Graham v. 
 Public Adm'r, 4 Bradf. Suit. (N. Y.) 127; 
 Leach v. Pillsbury, 15 N. H. 137. 
 
 The principle applies equally to cases of 
 voluntary transfer, of intestacy, and of tes- 
 taments; 5 B. & C. 451; Grattan v. Apple- 
 ton, 3 Sto. 755, Fed. Cas. No. 5,707 ; 3 Hagg. 
 273; Harrison v. Nixon, 9 Pet. (U. S.) 503, 
 9 L. Ed. 201; De Sobry v. De Laistre, 2 Harr. 
 & J. (Md.) 191, 3 Am. Dec. 535; Blake v. 
 Williams, 6 Pick. (Mass.) 286, 17 Am. Dec. 
 372; French v. Hall, 9 N. H. 137, 32 Am. 
 Dec. 341 ; In re Roberts' Will, 8 Paige, Ch. 
 (N. Y.) 519 ; Harvey v. Richards, 1 Mas. 381, 
 Fed. Cas. No. 6,184 ; Thomas v. Tanner, 6 T. 
 B. Monr. (Ky.) 52. 
 
 Wills are 1 to be governed by the law of the 
 domicil as to the capacity of parties ; 1 Jarm. 
 Wills 3 ; and as to their validity and effect 
 in relation to personal property ; Irving v. 
 McLean, 4 Blackf. (Ind.) 53 ; Conover v. 
 Chapman, 2 Bail. (S. C.) 436 ; Smith v. Bank, 
 5 Pet. (U. S.) 519, 8 L. Ed. 212; Barnes' 
 Adm'r v. Brashear, 2 B. Monr. (Ky.) 3S2; 3 
 Curt. Eccl. 468; Goodall v. Marshall, 11 N. 
 H. 88, 35 Am. Dec. 472; Hunter v. Bryson, 
 5 Gill & J. (Md.) 483, 25 Am. Dec. 313; Du- 
 puy v. Wurtz, 53 N. Y. 556; Johnson v. 
 Copeland's Adm'r, 35 Ala. 521; Gilman v. 
 Gilman, 52 Me. 165, 83 Am. Dec. 502 ; Appeal 
 of Carey, 75 Pa. 201 ; but by the lex rei sites 
 as to the transfer of real property ; Calloway 
 v. Doe, 1 Blackf. (Ind.) 372; Robertson v. 
 Barbour, 6 T. B. Monr. (Ky.) 527 ; Potter v. 
 Titcomb, 22 Me. 303 ; Bailey v. Bailey, 8 Ohio 
 239; U. S. v. Crosby, 7 Cra. (U. S.) 115, 3 L. 
 Ed. 287 ; Applegate v. Smith, 31 Mo. 166 ; Hol- 
 man v. Hopkins, 27 Tex. 38; 14 Ves. 541; 
 Appeal of Carey, 75 Pa. 201. See Lex Rei 
 
 SlTiE. 
 
 The forms and solemnities of the place of 
 domicil must be observed ; 4 M. & C. 76 ; 
 De Sobry v. De Laistre, 2 H. & J. (Md.) 191, 
 3 Am. Dec. 535; Desesbats v. Berquier, 1 
 Binn. (Pa.) 336, 2 Am. Dec. 448; Holmes v. 
 Remsen, 4 Johns. Ch. (N. Y.) 460, 8 Am. 
 Dec. 581; Harvey v. Richards, 1 Mas. 381, 
 Fed. Cas. No. 6,184; Armstrong v. Lear, 12 
 Wheat. (U. S.) 169, 6 L. Ed. 589; Gilman v. 
 Gilman, 52 Me. 165, 83 Am. Dec. 502 ; John- 
 son v. Copeland's Adm'r, 35 Ala. 521. 
 
 The local law is to determine the character
 
 DOMICIL 
 
 923 
 
 DOMICIL 
 
 of property ; Chapman v. Robertson, 6 Paige, 
 Ch. (N. Y.) G30, 31 Am. Dec. 264 ; Story, Confl. 
 Laws § 447; Erskine, Inst b. 3, tit. 0, § 4. 
 And it is held that a state may regulate the 
 succession to personal as well as real pi 
 ty within its limits, without regard to the 
 lex domicilii; Jones v. Marable, »J Ilumphr. 
 (Tenn.) IK,. 
 
 The Interpretation of a will of movables 
 is to be according to the law of the p] 
 the last domicil of tin- testator; L. R. •': H. L. 
 55; Appeal of Freeman, 68 Pa. 151; i BUgh 
 502; Harrison v. Nixon, 'J Pet. (l\ B 
 9 L. Ed. 201. But so far as its validity is 
 concerned, it does not matter that after the 
 will was made in one domicil the testator ob- 
 tained a new domicil, where he died; Whart. 
 Confl. Laws § 592; Story, Confl. I 
 g. Pee Dupuy v. Wurtz, 53 N. V. 556. But 
 it must be valid under the law of the new 
 domicil. 
 
 in England, by statute, a will does not be- 
 come invalid nor is its construction altered 
 by reason of the testator's change of domicil 
 after making it; Dicey, Dom. 308. It has 
 been said that the rules as to construction 
 of wills apply whether they be of real or 
 personal property, unless in case of real prop- 
 erty it may he clearly gathered from the 
 terms of the will that the testator had in 
 view the lex rei sitce; Story, Confl. Laws § 
 479 h; 2 Bligh 60 ; 4 M. & C. 70. But see, 
 contra,, Whart. Confl. Laws § r,'.»7. See Cox- 
 flict of Laws; Lex Rei Sit.*:; Will. 
 
 Uniform acts have been passed in some 
 states providing that a will executed outside 
 a state is good in a state if valid in the 
 of its execution (Colorado, Kansas, Louisi- 
 ana, Massachusetts, Michigan, Rhode Island, 
 Washington, Wisconsin. Alaska)., 
 
 Distribution of the personal property of an 
 intestate is governed exclusively by the law 
 of his actual domicil at the time of his 
 death; 5 B. & C. 43S ; Dannelli v. Dannelli's 
 Adm'r, 4 Bush (Ky.) 51; Emits v. Smith, 14 
 How. (U. S.) 400, 14 L. Ed. 472; I >e Sobry v. 
 De Laistre, 2 II. & J. (Md.) 193, 3 Am. Dec. 
 535; Holmes v. Remsen, 4 Johns. Ch. (N. Y.) 
 460, 8 Am. Dee. 581 : Harvey v. Richards, 1 
 Mas. 418, Fed. Cas. No. 6,184; Leach v. Rills- 
 bury, 15 N. II. 137. This Includes the ascer- 
 tainment of the person who is to take; Story, 
 Confl. Laws § 481; 2 Yes. 35; 2 Keen 293. 
 The descent of real estate depends upon the 
 law of the place of the real estate; 8 L. R. 
 Ch. 842; Harvey v. Ball, 32 1ml. 99; Kerr v. 
 Moon, 1) Wheat (U. S.) 565, < - > L. Ed. 161 ; I 1 
 Ves. 541; Grimhall v. Patton, 70 Ala. 626; 
 Pratt v. Douglas, 38 N. J. Eq. 516; Keegan 
 v. Geraghty, 101 111. 2(1. The question wheth- 
 er debts are to be paid by the administrator 
 from the personalty or realty is to be decid- 
 ed by the law of his domicil; !> Mod. 66; - 
 Keen 293. 
 
 Insolvents and bankrupts. An assignment 
 of property for the benelit of creditors valid 
 
 by the law of the domicil Is generally recog- 
 nized as valid everywl. 
 
 . Ch. 
 (X. Y.) 471, 7: 1 
 
 (Jr. M. & R. 296; Train v. 
 Mass. : 
 
 5 ; Appeal Of Smith, 104 Pa. 381 j Van 
 Winkle v. A] .11 N. J. 5 Atl. 
 
 1 19; in the absence of : 
 the contrary; i Williams, »; Pick. 
 
 286, 17 Am. Di 
 2 Mart X. S. I L 
 Moreton, 6 Linn. (Pa.) 353, 8 
 but DOt to the injury of citizens of the for- 
 eign state in which property is s; 
 Last 131; Saul v. His Creditors, 5 Mart. X. 
 s. (La.) 596, i»; Am. Dec 212; Mi 
 o, 6 Binn. (Pa.) 360, 8 Am. I 
 v. Saunders. 12 W. 
 L. Ed. 606; Johnson v. Parker, 1 Bush (Ky.) 
 149; Kidder v. Tufts, 48 N. H. 125; Burt; 
 v. McClain, 1 H. & McH. (Md.) 236; Moore v. 
 Willett, 35 Barb. (N. Y.) 66a ujral- 
 
 sory assignment by force of statute is not of 
 extra-territorial operation; Holmes v. Rem- 
 sen, 20 Johns. (N. Y.i 229, 11 Am. 
 Milne v. M , (Pa.) 353, 6 Am. 
 
 Dec. 4G0; Blake v. Williams. Pick. (V 
 2S6, 17 Am. 1 »ec. 372; Wood v. P 
 Midi. 159. Distribution of the effects of in- 
 solvent or bankrupt debtors Is to be made ac- 
 cording to the law of the domicil. subj 
 
 me qualifications; story. Confl. Laws 
 § 323, 423o. See, generally, 13 Am. I. 
 2G1; Whart. Confl. Laws; Morse 
 ship; Tiffany; Schouler, Domes 
 
 i'dmm. i or 
 kigh Corporation ; Insolvency. 
 
 DOMINANT. That to which a servitude 
 or easement is due. or for the l eneflt of which 
 it exists. Distinguished from servient, that 
 
 from which it is due. 
 
 DOMINICUM (Lat. domain; demain: de- 
 A lordship. That Of which one has 
 the lordship or ownership. That which re- 
 mains under the lord's immediate i 
 control. 
 
 In this sense It Is equivalent to the Saxon 
 lands. Spelman, Gloss.; Blount. In regard to 
 lands for \\ b ! hom- 
 
 merely, the dominicum was In the tenant. 
 
 In Domesday Booh it meant the home farm 
 as distinguished from the holdings of the 
 tenants. Vinogradoff, EngL Soc. in Eleventh 
 Century 353. 
 
 Property; domain; anything pertain 
 a lord. CowelL 
 
 in Ecclesiastical Law. A church, or any 
 other building consecrated to God. Du 
 Cange. 
 
 DOMINION. Ownership or risht to prop- 
 erty. 2 Bla. Com. 1. "The bolder has do- 
 minion of the bill." 
 
 Sovereignty or lordship, as the dominion 
 of the seas. Black, L. Diet- see DOMINIUM.
 
 DOMINIUM 
 
 924 
 
 DOMINUS 
 
 DOMINIUM (Lat.)- Perfect and complete 
 property or ownership in a thing. 
 
 Plenum in re dominium,— plena in re potestas. 
 This right is composed of three principal elements: 
 The right to use, the right to enjoy, and the right 
 to dispose of the thing, to the exclusion of every 
 other person. To use a thing, jus utendi tantum. 
 consists in employing it for the purposes for which 
 it is fit, without destroying it, and which employ- 
 ment can therefore be repeated ; to enjoy a thing, 
 jus fruendi tantum, consists in receiving the fruits 
 which it yields, quidquid ex re nascitur; to dispose 
 of a thing, jus abutendi, is to destroy it, or to trans- 
 fer it to another. Thus, he who has the use of a 
 horse may ride him, or put him in the plow to culti- 
 vate his own soil ; but he has no right to hire the 
 horse to another and receive the fruits which he 
 may produce in that way. 
 
 On the other hand, he who has the enjoyment of a 
 thing is entitled to receive all the profits or rev- 
 enues which may be derived from it. 
 
 And, lastly, he who has the right of disposing of a 
 thing, jus abutendi, may sell it, or give it away, 
 etc., subject, however, to the rights of the usuary or 
 usufructuary, as the case may be. 
 
 These three elements, usus, fructus, abusus, when 
 united in the same person, constitute the domini- 
 um; but they may be, and frequently are, separat- 
 ed, so that the right of disposing of a thing may be- 
 long to Primus, and the rights of using and enjoy- 
 ing to Secundus, or the right of enjoying alone may 
 belong to Secundus, and the right of using to Ter- 
 tius. In that case, Primus is always the owner of 
 the thing, but he is the naked owner, inasmuch as 
 for a certain time he is actually deprived of all the 
 principal advantages that can be derived from it. 
 Secundus, if he has the use and enjoyment, jus 
 utendi et fruendi simul, is called the usufructuary, 
 ususfructuarius ; if he has the enjoyment only jus 
 fruendi tantum, he is the fructuarius; and Tertius, 
 who has the right of use, jus utendi tantum, is call- 
 ed the usuary,— usuarius. But this dismemberment 
 of the elements of the dominium Is essentially tem- 
 porary ; If no shorter period has been fixed for its 
 duration, it terminates with the life of the usuary, 
 fructuary, or usufructuary; for which reason the 
 rights of use and usufruct are called personal serv- 
 itudes. Besides the separation of the elements of the 
 dominium among different persons, there may also 
 be a jus in re, or dismemberment, so far as real es- 
 tates are concerned, in favor of other estates. Thus, 
 a right of way over my land may exist in favor of 
 your house; this right is so completely attached to 
 the house that it can never be separated from it, ex- 
 cept by its entire extinction. This class of jura in 
 re is called predial or real servitudes. To constitute 
 this servitude, there must be two estates, belonging 
 to different owners ; thesfi estates are viewed in some 
 measure as juridical persons, capable of acquiring 
 rights and incurring obligations. The estate in fa- 
 vor of which the servitude exists is the creditor- 
 estate; and the estate by which the servitude is 
 due, the debtor-estate. See Hunter, Roman Law 
 231; Eminent Domain. 
 
 DOMINIUM DIRECTUM (Lat). Legal 
 ownership. Ownership as distinguished 
 from enjoyment. 
 
 DOMINIUM DIRECTUM ET UTILE (Lat). 
 Full ownership and possession united in one 
 person. 
 
 DOMINIUM UTILE (Lat). The beneficial 
 ownership. The use of the property. 
 
 DOMINUS (Lat). The lord or master; 
 the owner. Ainsworth, Lat. Lex. The own- 
 er or proprietor of a thing, as distinguished 
 from him who uses it merely. Calvinus, 
 Lex. A master or principal, as distinguished 
 
 from an agent or attorney. Story, Ag. § 3 J 
 Ferriere, Diet. 
 
 In Civil Law. A husband. A family. Vi- 
 cat, Voc. Jur. 
 
 DOMINUS LITIS (Lat). The master of 
 suit. The client, as distinguished from an 
 attorney. 
 
 And yet it is said that, although he who has ap- 
 pointed an attorney Is properly called dominus litis, 
 the attorney himself, when the cause has been 
 tried, becomes the dominus litis. Vicat. 
 
 DOMINUS NAVIS. In Civil Law. The ab- 
 solute owner of a ship. Wharton. 
 
 DOMIT/E (Lat). Tame; subdued; not 
 wild. 
 
 Applied to domestic animals, in which a 
 man may have an absolute property. 2 Bla. 
 Com. 391. 
 
 DONATARIUS (L. Lat). One to whom 
 something is given. A donee. 
 
 DONATIO (Lat). A gift. A transfer of 
 the title to property to one who receives it 
 without paying for it. Vicat. The act by 
 which the owner of a thing voluntarily 
 transfers the title and possession of it from 
 himself to another person, without any con- 
 sideration. See Indiana N. & S. R. W. Co. v. 
 City of Attica, 56 Ind. 476; Georgia Peni- 
 tentiary Co. No. 2 v. Nelms, 65 Ga. 499, 38 
 Am. Rep. 793. 
 
 A donation is never perfected until it has 
 been accepted ; for an acceptance is requisite 
 to make the donation complete. See Assent; 
 Ayl. Pand. tit. 9; Clef des Lois Rom.; 2 
 Kent 438; Penfield v. Thayer, 2 E. D. Sm. 
 (N. Y.) 305 ; Ivey's Adm'r v. Owens, 28 Ala. 
 N. S. 641. In old English law and in the 
 modern law, in several phrases, the word re- 
 tains the extended sense it has in the civil 
 law. 
 
 Its literal translation, gift, has acquired in 
 real property law a more limited meaning, 
 being applied to the conveyance of estates 
 tail. 2 Bla. Com. 316 ; Littleton § 59 ; West, 
 Symb. § 254; 4 Cruise, Dig. 51. There are 
 several kinds of donatio: as, donatio simpler 
 et pura (simple and pure gift without com- 
 pulsion or consideration) ; donatio absoluta 
 et larga (an absolute gift); donatio condi- 
 tionals (a conditional gift); donatio stricta 
 et coarctura (a restricted gift, as, an estate 
 tail). 
 
 DONATIO INTER VIVOS (Lat a gift be- 
 tween living persons). A contract which 
 takes place by the mutual consent of the 
 giver, who divests himself of the thing giv- 
 en in order to transmit the title of it to the 
 donee, gratuitously, and the donee who ac- 
 cepts and acquires the legal title to it. See 
 Gift; Donatio Mortis Causa. 
 
 DONATIO MORTIS CAUSA (Lat a gift in 
 prospect of death). A gift made by a person 
 in sickness, or other immediate peril, who, 
 apprehending his death as near, delivers, or
 
 DONATIO MORTIS CAUSA 
 
 
 DONA1 [( I MORI IB CAUSA 
 
 causes to be delivered, to another, the pos- 
 session of any personal goods, to keep us his 
 own in case of donor's decease. 2 Bla. Com. 
 514; Gourley v. Linsenbigler, 51 Pa. :'Ao. 
 
 The civil law defines It to be a gift under appre- 
 hension of death: as, when anything Is given upon 
 condition that if the donor die the donee shall pos- 
 sess it absolutely, or return it if the donor should 
 survive or sould repent of having made the gift, or 
 If the donee should die before the donor. Adams v. 
 Nicholas, 1 Miles (Pa.) 109. 
 
 It differs from a legacy, inasmuch as It does not 
 require proof in the court of probate ; 2 Stra. 777 ; 
 see 1 Bligh, N. S. 531 ; and no assent is required 
 from the executor to perfect the donee's title ; 2 
 Ves. 120; 1 S. & S. 245. It differs from a gift inter 
 vivos because it is ambulatory and revocable dur- 
 ing the donor's life because it may be made to the 
 wife of the donor, and because it is liable for his 
 debts, and it requires actual delivery; Poullain v. 
 Poullain, 79 Ga. 11. 4 S. E. 81. This division of gifts 
 Is taken from the Roman law, as are also the rules 
 by which they are governed. 2 Kent 439. See also 
 as to these distinctions Drett, L. Cas. Mod. Eq. 33. 
 
 The donor need not be in extremis; Larra- 
 bee v. HascalL 88 Me. 511, 34 Atl. ins. r,i 
 Am. St. Rep. -MO. It has been considered es- 
 sential to the validity of the gift that the 
 donor should die of the very malady from 
 which death was apprehended at the time 
 of making the gift; Williams v. Chamber- 
 lain, 105 ill. 210, 40 X. E. 250; Conser v. 
 Snowden, 54 Md. 175, 39 Am. Rep. 368; but 
 the better opinion is that while it is not a 
 requisite that he should die from the very 
 disease or peril from which he apprehended 
 death, yet there must be no Intervening re- 
 covery, and it is essential that his death en- 
 sue as a result of some disease or peril ex- 
 isting or impending at the time the gift was 
 made; Peck v. Scofield, 186 Mass. 108, 71 X. 
 E. 109; Ridden v. Thrall. 125 X. V. 572, 20 
 N. E. 027, 11 L. R. A. GS4, 21 Am. St. Rep. 
 758. A soldier ordered to the seat of war 
 Is not in such imminent peril as will justify 
 his making a gift causa mortis; Linsenbigler 
 v. Gourley, 50 Pa. 166, 94 Am. Dec. 51 ; but 
 such gifts have been held valid where the 
 donor never returned alive, but fell in battle 
 or died in camp: Virgin v. Galther, 42 111. 
 39; Gass v. Simpson, 4 Coldw. (Tenn.) 2SS. 
 A gift made in contemplation of suicide is 
 utterly void as against public policy; Dur- 
 yea v. Harvey, 1S3 Mass. 42:>. «;: X. l 
 
 A delivery of more than was Intended to 
 be given cannot overrule the donor's Inten- 
 tion, and the donee can take only as much as 
 was Intended to be given; Crlppen v. Adams, 
 132 Mich. 81, 92 x. w. 496, The delivery 
 need not be made to the donee personally, 
 but may be made to another as his agent or 
 trustee, and that without his knowled 
 the time of making the i~ r ift ; Sheedy v. Roach, 
 124 Mass. -171'. 26 Am. Rep. 680; Williams 
 v. Guile, H7 X. Y. 843, 22 N. D. L071, 6 L. 
 R. A. 366. Where actual manual tradition 
 cannot be made, cither from their nature or 
 their situation at the time, in such cases the 
 delivery may he constructive, although in all 
 cases it must be as nearly perfect and com- 
 plete as the nature of the property and at- 
 
 tendant , wiP 
 
 permit; Newman v. 
 
 8. 1-. 848. Technically, there must I 
 
 mce by tl 
 ery by the . 
 
 B. K. 721 : Amnion v. Man. 
 L91, 26 s. \V. 826; 
 Slight practical in.; 
 gift is beneficial to 
 
 will be presumed; Devol v. I » .. 321, 
 
 24 X. K. 246, 7 L. K. A. 
 71 x. II. 585, 53 At] 
 To constitute a good donatio 
 ■ be thing given mu 
 erty ; Wd. er, 3 Blnn. (1 
 
 Weils v. . . Blnn. (P 
 
 ;:;i ; :; Madd. 184 : haul, i 
 Michener v. Dale, 23 Pa. 59; 2 Br 
 612; White v. Wag* r, 32 Barb. i.\. V 
 3 P. Wms. 356; certifleab k ; Walsh 
 
 ton, 55 Barb. i.\. Y.i 253 : B ; 
 life insurance; 1 B. 8t 8. 109; G 
 Linsenbigler, ."i Pa. 845; and a check of- 
 fered for payment during the life of the 
 donor ; -1 Bro. C. ( '. 286 ; will be 
 ered; but a check not bo pi which 
 
 had not passed into the hands of B 
 holder, is revoked by the death of t 
 
 cedent; L. II. i> Eq. 198; Burke v. Bishop, 
 27 La. Ann. 465, 21 Am. Rep. 567; Si 
 v. Society, 31 Ohio St 457, 27 Am 
 Matter ..f Smither, 30 Hun (N. Y.) 
 v. Crowley, .".:) CaL 665; alitor, as to a check 
 given abroad ; L. R. 5 Ch! Div. 
 Taylor's Estate, 154 Pa. 183, 25 At:. 
 IS L. it. A. 855. A check to a wl • 
 Ing that it was to enable her to buy mourning, 
 was held under peculiar circumstances a val- 
 id donatio mortis causa; 1 P. Wms. -111. A 
 note not negotiable, or if negotiable, not In- 
 dorsed, but delivered, passes by roch a dona- 
 tion; l Dan. Xeg. Inst S' 24; Tiedm. Com. 
 Pap. 252; Chase v. Redding, L3 i 
 418; but In Bradley v. Hunt, 5 Gil] A J. 
 (Md. i 54, 23 Am. Dec. 597, this is limited to 
 hank notes and notes payable to hear. . 
 
 certificate of deposit which is delivered to a 
 
 person for the use of a third party, though 
 not indorsed. Is a valid gift; Cot. ner v. 
 11 Colo. 183, 17 Pac. 778; Reed v. Barnum. 
 36 111. App. 525; contra, Dunn v. I 
 
 S. W. 1 L3S 
 Cal. 346, 80 Pac .".7:.. a ch< 
 subject of a donatio i - paid 
 
 in the donor's lifetime: death revokes the 
 hank's authority to pay ; 1 Bt ». C. ' 
 Burke v. Bishop, 27 La. Ann. 465, 21 Am. 
 Rep. 567; Second Nat Bank of Detl 
 Williams. 13 Mich. 282. Bui In BUCh i 
 check has I uieli- 
 
 tary character : •"• < furt 
 
 1 P. Wms. Ill (supra). Where a man 
 
 a gift of hii - son to l • 
 
 after his death, and the hank, knowing I 
 drawer was dead, paid the check, it must 
 pay the amount of the check to the personal
 
 DONATIO MORTIS CAUSA 
 
 92G 
 
 DONATIO MORTIS CAUSA 
 
 representatives ; Pullen v. Bank, 138 Cal. 
 169, 66 Pac. 740, 71 Pac. 83, 94 Am. St. Rep. 
 19. A cheek or note or other negotiable in- 
 strument of a person other than the donor 
 may be the subject of such gift; L. R. 15 
 Ch. D. 651 ; L. R. 6 Eq. 19S ; Burke v. Bish- 
 op, 27 La. Ann. 465, 21 Am. Rep. .",67. 
 Though unaccepted by the bank, a check for 
 the entire amount of the drawer's balance 
 delivered to a person as a gift of the mon- 
 ey, operates as an assignment of the fund 
 and is valid as a gift mortis causa; Varley 
 v. Sims. 100 Minn. 331, 111 N. W. 269, 8 L. 
 R. A. (N. S.) S28, 117 Am. St. Rep. 694, 10 
 Ann. Cas. 473. There must be a parting with 
 the dominion over the subject matter of the 
 gift, with a present design that the title 
 shall pass out of the donor and to the donee ; 
 Liebe v. Battmann, 33 Or. 241, 54 Pac. 179, 
 72 Am. St. Rep. 705. 
 
 A husband cannot gratuitously dispose of his per- 
 sonalty in this way to defeat the widow's statutory 
 rights therein; Hatcher, v. Buford, 60 Ark. 169, 29 
 S "W 641 27 L. R. A. 507 ; and the same is true as 
 to the wife ; Baker v. Smith, 66 N. H. 422, 23 Atl. 82. 
 
 Title to the property passes to the donee upon its 
 delivery to him, but remains subject to defeasance 
 while the donor lives; Chase y. Redding, 13 Gray 
 (Mass.) 418; Nicholas v. Adams, 2 Whart. (Pa.) 17; 
 Basket v. Hassell, 107 U. S., 602, 2 Sup. Ct. 415, 27 
 L. Ed. 500. A gift of this nature cannot avail 
 against creditors and the donee takes subject to the 
 right of personal representative to reclaim it if 
 necessary for the payment of deceased's debts ; 
 Dunn v. Bank, 109 Mo. 90* 18 S. W. 1139. 
 
 The delivery of a savings-bank book passes 
 the money in bank ; Hill v. Stevenson, 63 Me. 
 364, 18 Am. Rep. 231 ; Sheedy v. Roach, 124 
 Mass. 412, 26 Am. Rep. 680 ; Pierce v. Bank, 
 129 Mass. 425, 37 Am. Rep. 371 ; Camp's Ap- 
 peal, 36 Conn. 88, 4 Am. Rep. 39; Tilling- 
 hast v. Wheaton, 8 R. I. 536, 5 Am. Rep. 621, 
 94 Am. Dec. 126; contra, Walsh's Appeal, 122 
 Pa. 177, 15 Atl. 470, 9 Am. St. Rep. 83, 1 L. 
 R. A. 535 ; see Thomas' Adm'r v. Lewis, 89 
 Va. 1, 15 S. E. 389, 18 L. R. A. 170, 37 Am 
 St. Rep. 848. A banker's deposit note is a 
 good subject of gift; 44 Ch. Div. 76; but 
 where the bank book is already in the hands 
 of the donee, a statement by the donor that 
 his wife may have it is not sufficient ; Drew 
 v. Hagerty, 81 Me. 231, 17 Atl. 63, 3 L. R. A. 
 230, 10 Am. St. Rep. 255. See 36 Cent. Law 
 J. 354 ; 31 Am. Law Reg. 681 ; 34 id. 85, for 
 discussions and annotations on this subject. 
 A mortgage is a good gift; 5 Madd. 351; 1 
 Bligh, N. S. 497; a policy of insurance; 1 
 Best & Sm. 109; 33 Beav. 619; a receipt for 
 money; 4 De G. & Sm. 517; bonds; 3 Atk. 
 214; 1 Bligh, N. S. 497; bank notes; 2 Eden 
 125 ; Sel. Ch. Cas. 14 ; 3 P. Wms. 356 ; 2 Bro. 
 C. C. 612. 
 
 A promissory note of the sick man made 
 in his last illness is not a valid donation; 5 
 B. & C. 501; Parish v. Stone, 14 Pick. 
 (Mass.) 204, 25 Am. Dec. 378; Craig v. 
 Craig, 3 Barb. Ch. (N. Y.) 70: Smith v. Kitt- 
 ridge. 21 Vt. 238; Helfensteins Estate, 77 
 Pa. 328, 18 Am. Rep. 449. See Flint v. Pat- 
 
 tee, 33 N. H. 520, 66 Am. Dec. 742; Brown 
 v. Brown, 18 Conn. 410, 46 Am. Dec. 328; 
 Waring Adm'r v. Edmonds, 11 Md. 424 ; Ses- 
 sions v. Moseley, 4 Cush. (Mass.) 87; Graves 
 v. Safford, 41 111. App. 659; 6 Harv. L. Rev. 
 36. In England, bills delivered on a death- 
 bed but without consideration, are valid 
 donations ; 27 Beav. 303 ; but a gift of the 
 donor's own cheque, if not payable until aft- 
 er his death, is not valid; 27 Ch. D. 631. See 
 also 5 Ch. D. 730 ; 4 D. M. & G. 249. As to 
 a gift of money, see Corle v. Monkhouse, 50 
 N. J. Eq. 537, 25 Atl. 157. 
 
 S&cond, the gift must be made by the 
 donor in peril of death, and to take effect 
 only in case the giver dies; Bisph. Eq. 70; 
 Wells v. Tucker, 3 Binn. (Pa.) 370; 1 Bligh, 
 N. S. 530; Blanchard v. Sheldon, 43 Vt. 513; 
 Grymes v. Hone, 49 N. Y. 17, 10 Am. Rep. 
 313; Kirk v. McCusker, 3 Misc. 277, 22 N. 
 Y. Supp. 780; a gift made in apprehension of 
 death from a surgical operation is valid ; Rid- 
 den v. Thrall, 125 N. Y. 572. There is quite 
 a conflict of authority as to whether a gift 
 by a soldier about to join the army is a valid 
 donatio causa mortis, with the weight of au- 
 thority against sustaining them. They have 
 been upheld, it may possibly be considered, in 
 Virgin v. Gaither, 42 111. 39 ; but this case is 
 explained in Travis on Sales as a gift inter 
 vivos on condition; a case cited as upholding 
 them, Baker v. Williams, 34 Ind. 547, is over- 
 ruled if it does so hold ; Smith v. Dorsey, 38 
 Ind. 451, 10 Am. Rep. 118; which holds them 
 invalid, as do also Gourley v. Linsenbigler, 51 
 Pa. 345; Irish v. Nutting, 47 Barb. (N. Y.) 
 370; Dexheimer v. Gautier, 5 Rob. (N. Y.) 
 216 (Barbour, J., dissenting). See Gass v. 
 Simpson, 4 Cold. (Tenn.) 2S8. 
 
 Such a gift is only good when made in 
 relation to the death of the person by ill- 
 ness affecting him at the time; 2 Ves. Jr. 
 121; but if it appear that the donation was 
 made when the donor was ill and only a 
 few days or weeks before his death, it will 
 be presumed that it was made in the last 
 illness and in contemplation of death ; 1 
 Wms. Ex. 845 ; Dole v. Lincoln, 31 Me. 422. 
 When a gift was made in contemplation 
 of death, but the donor so far recovered as 
 to be able to attend to his business, and then 
 died of the same disease, held not a good 
 donatio; Weston v. Hight, 17 Me. 287, 35 
 Am. Dec. 250. That the donor lived fourteen 
 days; Nicholas v. Adams, 2 Whart. (Pa.) 
 17; three days; Wells v. Tucker, 3 Binn. 
 (Pa.) 370; Goulding v. Horbury, 85 Me. 227, 
 27 Atl. 127, 35 Am. St. Rep. 357 ; six hours ; 
 Michener v. Dale, 23 Pa. 63; after making 
 the gift, does not invalidate it. There seems 
 to be no rule limiting the time within which 
 the gift must be made before death; Grymes 
 v. Hone, 49 N. Y. 17, 10 Am. Rep. 313. 
 
 Third, there must be an actual delivery 
 of the subject to or for the donee, in cases 
 where such delivery can be made; Penning- 
 ton v. Gittings, 2 Gill & J. (Md.) 208; Mil-
 
 DONATIO MORTIS CAUSA 
 
 927 
 
 DONATIO MORTI 
 
 ler v. Jeffress, 4 Gratt. (Va.) 472; Dole v. | 
 Lincoln, 31 Me. 422 ; Grynies v. Hone, 49 N, 
 Y. 17, 10 Am. Rep. 313; Cutting v. (Jilmau, 
 41 N. II. 147; Daniel v. Smith, 75 Cal. 548, 
 17 I'ac. GS3; L. R. 6 Eq. 471: Emery v. 
 Olough, 63 X. II. 552, 4 Atl. 796, 56 Am. Rep. 
 543; McCord's Adm'r v. McCord, 77 Mo. L66, 
 4c; Am. Rep. '.); Kill v. Weaver, 94 N. 0. 274, 
 55 Am. Rep. 001. The delivery must be as 
 complete us ihe nature of the property will 
 admit of; Hatch v. Atkinson, 56 Me. 324, '■»> 
 Am. Dec. 464, where taking the key of a 
 trunk, putting goods int.) the trunk and re- 
 turning the key to its place at the request 
 of the owner, who expressed a desire, in his 
 last illness, to make the trunk and ii 
 tents a donatio mortis causa, was held not to 
 be a sufficient delivery. 
 
 Where one about to commit suicide in- 
 dorsed a promissory note and placed it in an 
 envelope directed to a friend in the same 
 house and then shot himself, held no deliv- 
 ery; Liehe v. Battmann. :;:: Or. '-Ml, ."4 Pac. 
 179, 72 Am. St. Rep. 705. The gifl of the 
 keys of a box deposited in a vault of a haul; 
 containing bonds, etc., is a sufficient con- 
 st motive delivery of the contents of the box; 
 Thomas' Adm'r v. Lewis, S9 Va. 1, 15 S. E. 
 389, 18 L. R. A. 170, 37 Am. St. Re; 
 2 Ves. Sen. 431; Prec. Ch. 300; [1891] W. N. 
 201 (where donor delivered the keys of a 
 trunk to donee, and said the trunk and its 
 contents were donee's) ; Deblnson v. Em- 
 mons, 15S Mass. 592, 33 N. E. 706; hut see 
 Goulding v. Ilorhury, 85 Me. 227, 27 Atl. 127, 
 35 Am. St. Rep. 357. An intention to give is 
 sufficiently manifested from the fact that a 
 person in extremis hands a package of bonds 
 to another saying, "These bonds are for 
 you;" Vandor v. Roach, 7:; Cal. 614, 15 Tac. 
 354. Delivery can be made to a third person 
 for the use of a donee; Wells v. Tucker, 3 
 Binn. (Pa.) 370; Bloomer v. Bloomer, 2 
 Bradf. Surr. (N. Y.) 340; Southerland v. 
 Southerland's Adm'r, 5 Bush (Ky. | 591 : but 
 not if the third party is the agent of the 
 giver; 2 Coll. 356. The acceptance is pre- 
 sumed, unless the contrary appear; In re 
 Dunlap's Estate, 94 Mich. 11. 53 X. W. 788. 
 
 To make such a gift valid there must be 
 a renunciation by the donor and an acquisi- 
 tion by the donee, of all interest and title 
 to the property intended to be given; Wet- 
 more v. Brooks, IS X. Y. Supp. 852. 
 
 To constitute such a gift, the subject must 
 be delivered either to the donee or to some 
 person for his use and benefit, and the donor 
 must part with all dominion over the prop- 
 erty, and the title must vest in the donee, 
 subject to the right of the donor at any time 
 to revoke the sift; Daniel v. Smith. 75 Cal. 
 548, 17 Pac 683. 
 
 It is an unsettled question whether BUCb 
 kind of gift appearing in writing, without 
 delivery of the subject, can he supported; 
 2 Ves. 120; Smith v. Downey, 38 N. C. 268; 
 but Lord Hardwicke expressed the opinion 
 
 that it could be; 2 : 1 id. 314; 
 
 contra, 1 Wn. 'ii 
 
 v. Thorn] :in 
 
 and civil law, a gift n ;-ht he 
 made in writb 
 
 2 yes. Sen. 440; l id. i 
 
 1'poli the 
 
 equent ability to comply with t 
 ute. the dispensation from its :• 
 
 d- 
 
 id when made 
 No expression t" 1 1 
 
 v. Jones, 3 DeL Ch. 63 ; Tb 
 v. Lewis, 89 Va. I, 15 S 18 L I: 
 
 848. 
 The es entials are also thus I. it 
 
 must he in view of donor's death. 2. With 
 express or Implied intention thai 
 take effect by reason of e ler. 
 
 :•,. Delivery by tb to the d 
 
 ! mi his behalf : Bret t. : 
 Eq. ::::: hut this is nut bo satisfactory as the 
 well-settled enumeration 
 
 A donatio mortis causa do require 
 
 the executor's assent : - Ves. Jr. 120; is 
 revocable by the d<>n.>r during his life: 
 Bloomer v. Bloomer, 2 Bradf. Burr, i X. x\) 
 339 ; Parker v. Marston, 27 M 
 Luther. ?, Woodb. & M. 519, Fed Cas. X". 
 8,196; Jones v. Brown, •". 1 X. II. 139; D 
 v. Doran, 99 Cal. 311, 33 Pi c 929; by re- 
 covery; 3 M ■" •:.. & G. ■'■"■ i W . Ex. 651 : 
 or resumption of 
 
 but not by a subsequent will banc. 
 
 300; contra* Jayne v. Murphy. ::i IP. 
 28; but may he satisfied by a - 
 legacy; l Ves. Sen. 314. And Bee Shir 
 Whitehead, 36 N. C. 130. it i. ay i e of any 
 amount of property: Meach v. Bleach, 21 Vt. 
 591. It is liable for the testat »r's 
 Dunn v. Bank, 109 Mo. 90, 18 S. W. 1139; 
 Emery v. Clough, 63 X. B. 552, 1 atl. 7 
 Am. Rep. 543; B , BasseU, 107 U. S. 
 
 61 2, 2 sup. Ct 415. 27 L. I'd. 500; a git 
 viding for the payment of certain hills and 
 a division of the remaining property is valid: 
 Loucka v. Johnson. 70 Hun 565, 21 X. Y. 
 Supp. 267. 
 
 A gift mortis causa is Done the less valid 
 because it embraces the entire personal es- 
 tate of the donor, and the testin 
 credible witni ss Is sufficient to estn 
 a gift : Thomas' Adm'r v. Lewis 89 Va. 1. 15 
 s. E. 389, 18 I.. R. A. 17^. 37 Am. St 
 848; Meach v. Meach, 24 Vt 591; bi 
 Headley v. Klrby, 18 Pa. 326; Marshall v. 
 Perry, 13 Allen (Mass.) 43; and a gift B 
 panled by the condition that part t 1 
 is to be applied to the payment of tl 
 nor's debts is good; Wetmore v. : 
 X. y. snp. 852. 
 
 a thorough discussion of this be 
 
 <,.,. Robson v. Jones, ■"• DeL Ch 51 : 36 Am. L. 
 
 547, 289; aote to Ward v. Turner, Wh. 
 
 & T. L. C. Eq. : 36 Cent. Law J. 354; 32 id, 27. 
 
 DONATIO PROPTER NUPTIAS (Lit. 
 
 gift on account of marriage). In Roman
 
 DONATIO PROPTER NUPTIAS 928 
 
 DOOR 
 
 Law. A gift made by the husband as a se- 
 curity for the marriage portion. The effect 
 of the act of making such a gift was differ- 
 ent according to the relation of the parties 
 at the time. Vicat, Voc Jur. Called, also, a 
 mutual gift. 
 
 The name was originally applied to a gift 
 made before marriage, and was then called 
 a donatio ante nuptias; but in process of 
 time it was allowed to be made after mar- 
 riage as well, and was then called a dona- 
 tio propter nuptias. 
 
 DONATION. See Donatio. 
 
 DONATIVE. See Advowson. 
 
 DONEE. One to whom a gift is made or 
 a bequest given; one who is invested with 
 a power of appointment: he is sometimes 
 called an appointee. 4 Kent 316. 
 
 DON IS, STATUTE DE. See De Donis, 
 the Statute. 
 
 DONOR. One who makes a gift. One 
 who gives lands in tail. Termes de la Ley. 
 
 DONUM (Lat). A gift. 
 
 The difference between donum and munus Is said 
 to be that donum is more general, while munus is 
 specific. Munus is said to mean donum with a 
 cause for the giving (though not a legal considera- 
 tion), as on account of marriage, etc. Donum is 
 said to be that which is given from no necessity of 
 law or duty, but from free will, "from the absence 
 of which, if they are not given, no blame arises ; 
 but if they are given, praise is due." Vicat, Voc. 
 Jur. ; Calvinus, Lex. 
 
 DOOM. Judgment. 
 
 DOOM OF THE ASSESSOR. See Assess- 
 ment. 
 
 DOOR. The place of usual entrance into 
 a house, or into a room in the house. 
 
 To authorize the breach of an outer door 
 in order to serve process, the process must 
 be of a criminal nature; and even then a 
 demand of admittance must first have been 
 refused; 5 Co. 94; State v. Smith, 1 N. H. 
 346; Bell v. Clapp, 10 Johns. (N. Y.) 263, 
 6 Am. Dec. 339; Kelsy v. Wright, 1 Root 
 (Conn.) 83; State v. Shaw, 1 Root (Conn.) 
 134; Banks v. Farwell, 21 Pick. (Mass.) 156; 
 Com. v. Reynolds, 120 Mass. 190, 21 Am. Rep. 
 510 ; Cabill v. People, 106 111. 621 ; Hawkins 
 v. Com., 14 B. Monr. (Ky.) 395, 61 Am. Dec. 
 147. The outer door may also be broken 
 open for the purpose of executing a writ of 
 habere facias; 5, v Co. 93; Bac. Abr. Sheriff 
 (N3). 
 
 An outer door cannot, in general, be 
 broken for the purpose of serving civil pro- 
 cess; Oystead v. Shed, 13 Mass. 520, 7 Am. 
 Dec. 172; Snydacker v. Brosse, 51 111. 357, 
 99 Am. Dec. 551; Hooker v. Smith, 19 Vt. 
 151, 47 Am. Dec. 079 ; 1 M. & W. 336 ; Curtis 
 v. Hubbard, 4 Hill (N. Y.) 437, 40 Am. Dec. 
 292; but after the defendant has been ar- 
 rested, and he takes refuge in his own house, 
 the officer may justify breaking an outer 
 door to take him; Fost. 320; 1 Rolle 138; 
 Cro, Jac. 555; Allen v. Martin, 10 Wend. 
 
 (N. Y.) 300, 25 Am. Dec. 564. When once 
 an officer is in the house, he may break open 
 an inner door to make an arrest; Fitch v. 
 Loveland, Kirb. (Conn.) 386; Hubbard v. 
 Mace, 17 Johns. (N. Y.) 127; 13 M. & W. 52; 
 Pretty man v. Dean, 2 Harr. (Del.) 494. See 
 1 Toullier, n. 214, p. 88; L. R. 2 Q. B. 593; 
 or break the outer door to get out; 7 A. & 
 E. 826. 
 
 DORMANT. Sleeping; silent; not known; 
 not acting. One whose name and transac- 
 tions as a partner are professedly concealed 
 from the world ; Mitchell v. Dall, 2 H. & G. 
 (Md.) 159; Kelley v. Hurlburt, 5 Cow. (N. 
 Y.) 534; Pitts v. Waugh, 4 Mass. 424; Na- 
 tional Bank of Salem v. Thomas, 47 N. Y. 
 15. Coll. Partn. § 4. The term is applied, 
 also, to titles, rights, judgments, and exe- 
 cutions. As to the latter, see Storm v. 
 Woods, 11 Johns. (N. Y.) 110; Kimball v. 
 Munger, 2 Hill (N. Y.) 364. 
 
 DORMANT JUDGMENT. One that has be- 
 come inoperative so far as the right to issue 
 execution thereon is concerned. General Elec- 
 tric Co. v. Hurd, 171 Fed. 984. See Judg- 
 ment. 
 
 DOS (Lat). In Roman Law. That which 
 is received by or promised to the husband 
 from the wife, or any one else by her influ- 
 ence, for sustaining the burdens of matri- 
 mony. There are three classes of dos. Dos 
 profectitia is that which is given by the fa- 
 ther or any male relative from his property 
 or by his act; dos adventitia is that which 
 is given by any other person or from the 
 property of the wife herself; dos receptitia 
 is where there is a stipulation connected 
 with the gift relating to the death of the 
 wife. Vicat ; Calvinus, Lex. ; Du Cange ; 1 
 Washb. R. P. 147. 
 
 In English Law. The portion bestowed up- 
 on a wife at her marriage by her husband. 
 1 Washb. R. P. 147; 1 Cruise, Dig. 152. 
 
 Dower generally. The portion which a 
 widow has in the estate of her husband aft- 
 er his death. Park, Dower. 
 
 This use of the word in the English law, though, 
 as Spelman shows, not strictly correct, has still the 
 authority of Tacitus (de Mor. Germ. 18) for its use. 
 And if the general meaning of marriage portion is 
 given to it, it is strictly as applicable to a gift from 
 the husband to the wife as to one from the wife to 
 the husband. It occurs often, in the phrase dos de 
 dote peti non debet (dower should not be sought of 
 dower). 1 Washb. R. P. 209. 
 
 DOS RATIONABILIS (Lat). A reason- 
 able marriage portion. A reasonable part 
 of her husband's estate, to which every wid- 
 ow is entitled, of lands of which her husband 
 may have endowed her on the day of mar- 
 riage. Co. Litt 336. Dower, at common 
 law. 2 Bla. Com. 134. 
 
 DOSSIER (Fr.). A brief; a bundle of 
 papers. 
 
 DOT (a French word adopted in Louisi- 
 ana). The fortune, portion, or dowry which 
 a woman brings to her husband by the mar-
 
 DOT 
 
 929 
 
 DOUBLE EAGLE 
 
 riage. Ruisson v. Thompson, 7 Mart. La. 
 (N. S.) 460. 
 
 DOTAGE. That feebleness of the mental 
 faculties which proceeds from old age. A 
 diminution or decay of that intellectual pow- 
 er which was once possessed. 1 Bland, Ch. 
 389. See Demeh iia. 
 
 DOTAL PROPERTY. By the civil law 
 in Louisiana, by this term is understood that 
 property which the wife brings to the hus- 
 band to assist him in bearing the <-\ 
 of the marriage establishment Extradotal 
 property, otherwise called paraphernal prop- 
 erty, is that which forms no part of the 
 ry. La. Civ. Code. art. 2335. 
 
 The effect of marriage under the civil law 
 as found in the digest was that the wile 
 brought her dos and the husband his antl- 
 dos into the marriage. In all other prop- 
 erty belonging to them they each retained 
 the rights of owners in their separate ca- 
 pacities uncontrolled by their relation of 
 husband and wife; Ballinger, Community 
 Property § 2. See Community. 
 
 DOTATION. In French Law. The act by 
 which the founder of a hospital, or other 
 charity, endows it with property to fulfil its 
 destination. 
 
 DOTE. In Spanish Law. The property 
 and effects which a woman brings to her hus- 
 band for the purpose of aiding him with the 
 rents and revenues thereof to support the ex- 
 penses of the marriage. Las Partidas, 4. 11. 
 1. "Dos," says Cujas, "est pecunia marito, 
 nuptiarum causa, data vel promissa." The 
 dower of the wife is inalienahle, except in 
 certain specified cases, for which see 
 che, Die. Raz. Dote. 
 
 As an English verb it has been defined to 
 be delirious, silly or insane. Gates v. Mere- 
 dith, 7 Ind. 441. 
 
 DOTE ASSIGNANDA. In English Law. A 
 writ which lay in favor of a widow, when it 
 was found by office that the king's tenant 
 was seized of tenements in fee or fee-tail 
 at the time of his death, and that he held 
 of the king in chief. Such widows were 
 called kind's widows. 
 
 DOTE UNDE NIHIL HABET. A writ 
 which lies for a widow to whom no dower 
 has been assigned. 3 Bla. Com. 182. By 23 
 and 24 Vict. c. 12G, an ordinary action 
 inenced by writ of summons has taken its 
 place; but it remains in force in the United 
 states, and under the designation of dower 
 unde nihil hahct, is [he form in common use 
 for the recovery of dower at law; 1 V 
 R. P. 290 ; 4 Kent 63. 
 
 DOUBLE AVAIL OF MARRIAGE. 
 
 Duplex Valor Mauitaiii. 
 
 See 
 
 DOUBLE COMPLAINT. See Duplex 
 Querela. 
 
 DOUBLE COSTS. See Costs. 
 Bouv.— 59 
 
 DOUBLE EAGLE. A gold coin of the 
 United States, of the value of twenty dol- 
 lars or units. 
 
 It Is so called because It Is twice the value of the 
 eagle, and, consequently, weighs five hundred and 
 sixteen grains of standard fineness, namely, nine 
 hundred thousandths One. It i: a legal tender for 
 dollars to any amount. Act of March 3 
 1819, 6 Stat. L. 397. U. S. R. v. Stat- §g 3511, 3814. 
 The double eagle Is In value the largest coin 
 In the United States. The first Issue was m 
 1819. See act of Feb. 12, 1S73, 17 Stat. L. p. 426 ; 
 Eagle. 
 
 DOUBLE INSURANCE. Where divers in- 
 surances are made upon the same Inten 
 
 me subject against the same risks it 
 favor of the same assured, in proportions ex- 
 ceeding the value. 1 I'hill. Ins. H 
 
 i e, sub-title, Double Insur- 
 ance. 
 
 A like excess in one policy is over-insurance. If 
 the valuation of the whole interest in one policy Is 
 double that in another, and half of the value is in- 
 sured in each policy according to the valuation in 
 that policy, it is not a double insurance ; its being 
 so or not depends on the aggregate of the propor- 
 tions, one-quarter, one-half, etc., insured by each 
 policy, not upon the aggregate of the amounts. 
 
 Where the insurance is on the interests 
 of differei I s, though on the 
 
 goods, it is not double insurance; Wells v. 
 Ins. Co., 9 S. t v- R. (Pa.) 107; nor i< it where 
 eanier and shipper each Insure; itoyster v. 
 Roanoke X. & B. S. B. Co.. i'*; I'. I. 192. 
 
 In case of double insurance, the assured may sue 
 upon all the policies and is entitled to judgment 
 upon all, but he is entitled < 
 
 therefore, if during the pendency of suits on sev- 
 eral policies concerning the same risk and Inl 
 the loss is paid In full by one company, the actions 
 against the others must fail, and the insurer paying 
 the loss has a remedy against the other 1:. 
 for a proportionate share of the loss. If there be 
 any doubt as to whether the policies cover the same 
 property or interest, evidence la admissible to show 
 the fact; Wiggin v. Ins. Co., 18 Pick. (Ma 
 29 Am. Dec. i Fire Ins. Co. 
 
 Wend. (X. Y. » 386, 30 Am. .. Ins. 
 
 Co., 39 Barb. fN. T.) 802; IVorla Marine & Fire 
 Ins. Co. v. Lewis, 18 111. 553 ; Sloat v. Ina. Co., 49 
 Pa. II. 88 Am. Dec. 477; Merrick v. Ins. Co., 54 
 Pa. 277 ; May, Ins. § 13. 
 
 The question of double insurance do. 
 generally arise in life insurance, as there i> 
 no tixed value to the life, and the person in 
 each case is to pay a dzed sum without re- 
 gard to other insurance. But where the 
 insurable Interest has an ascertainable value 
 the question may arise, as where two poli- 
 cies are taken out in differei by a 
 creditor, on the life of a debtor, and for the 
 same debt. Then only t ie in- 
 terest can be recovered and the amount re- 
 covered on the first policy is to be deducted 
 from the amount payable on the second; 
 May, In--;, g ! \<>. S- 
 
 DOUBLE PLEA. The alleging, for one 
 single purpose, two or more distinct grounds 
 
 one of them would be 
 fectual in law as both or all. See DUPLICITY. 
 
 By the statute 4 Anne. c. 16, in Kmdand, 
 and by similar statutes in most if not all of 
 the states, any defendant in any suit, and
 
 DOUBLE PLEA 
 
 930 
 
 DOUBLE WASTE 
 
 any plaintiff in replevin in any court of rec- 
 ord, may plead as many several matters as 
 may lie necessary for a defence, with leave of 
 court. This statute allows double pleading; 
 but each plea must be single, as at common 
 law; Lawes, PL 131; 1 Chit. PI. 512; Andr. 
 Steph. PI. 320 ; and the statute does not ex- 
 tend to the subsequent pleadings; Com. Dig. 
 Pleader (E 2) ; Story, PI. § 72; Gould, PI. 
 c. 8; Doctrina Plac. 222. In criminal cases 
 a defendant cannot plead a special plea in 
 addition to the general issue; 7 Cox, Cr. Cas. 
 85. 
 
 DOUBLE POSSIBILITY. A possibility up- 
 on a possibility. 2 Bla. Com. 170. See Con- 
 tingent Remainder. 
 
 DOUBLE RENT. In English Law. Rent 
 payable by a tenant who continues in pos- 
 session after the time for which he has given 
 notice to quit, until the time of his quitting 
 possession. Stat. 11 Geo. II. c. 19 ; Fawcett, 
 L. & T. 304. The provisions of this statute 
 have been re-enacted in New York, and some 
 other states, though not generally adopted in 
 this country. 
 
 DOUBLE TAX. See Tax. 
 
 DOUBLE OR TREBLE DAMAGES. See 
 
 Measure of Damages. 
 
 DOUBLE USE. A term used in patent law 
 to indicate that a later device is merely a 
 new application of an older device, not in- 
 volving the exercise of the inventive faculty. 
 
 In construing letters patent for new ap- 
 plications of old devices, if the new use be 
 so nearly analogous to the former one that 
 it would occur to a person of ordinary me- 
 chanical skill, it is only a case of double 
 use; but if the relations between them are 
 remote, and especially if the use of the old 
 device produce a new result, it may involve 
 an exercise of the inventive faculty — much 
 depending upon the nature of the changes 
 required to adapt the device to its new use ; 
 Potts v. Creager, 155 U. 6. 597, 15 Sup. Ct. 
 194, 39 L. Ed. 275. See Patent. 
 
 D.OUBLE VOUCHER. A voucher which 
 occurs when the person first vouched to war- 
 ranty comes in and vouches over a third 
 person. See a precedent, 2 Bla. Com. App. 
 V. p. xvii. ; Voucher. 
 
 The necessity for double voucher arises 
 when the tenant in tail is not the tenant in 
 the writ, but is tenant by warranty ; that is, 
 where he is vouched, and comes in and con- 
 fesses the warranty. Generally speaking, to 
 accomplish this result a previous conveyance 
 is necessary, by the tenant in tail, to a third 
 person, in order to make such third person 
 tenant to a writ of entry. Pres. Conv. 125, 
 126. 
 
 DOUBLE WASTE. When a tenant bound 
 to repair suffers a house to be wasted, and 
 then unlawfully fells timber to repair it, 
 
 he is said to commit double waste. Co. Litt. 
 53. See Waste. 
 
 DOUBT. The uncertainty which exists in 
 relation to a fact, a proposition, or other 
 thing ; an equipoise of the mind arising from 
 an equality of contrary reasons. Ayliffe, 
 Pand. 121. 
 
 Some rules, not . always infallible, have 
 been adopted in doubtful cases, in order to 
 arrive at the truth. 1. In civil cases, the 
 doubt ought to operate against him who, hav- 
 ing it in his power to prove facts to remove 
 the doubt, has neglected to do so. In cases 
 of fraud, when there is a doubt, the presump- 
 tion of innocence ought usually to remove it. 
 2. In criminal cases, whenever a reasonable 
 doubt exists as to the guilt of the accused, 
 that doubt ought to operate in his favor. In 
 such cases, particularly when the liberty, 
 honor, or life of an individual is at stake, 
 the evidence to convict ought to be clear 
 and devoid of all reasonable doubt. 
 
 The term reasonable doubt is often used, 
 but not easily defined. Failure to explain 
 reasonable doubt in a charge is not error; 
 Thigpen v. State, 11 Ga. App. 846, 76 S. E. 
 596. The words require no definition ; Buch- 
 anan v. State, 11 Ga. App. 756, 76 S. E. 73. 
 It is a better practice not to define it; 
 Holmes v. State (Tex.) 150 S. W. 926 ; State 
 v. Reed, 62 Me. 129. "It is not mere possible 
 doubt ; because everything relating to human 
 affairs, and depending on moral evidence, is 
 open to some possible or imaginary doubt. 
 It is that state of the case which, after the 
 entire comparison and consideration of all 
 the evidence, leaves the minds of jurors in 
 such a condition that they cannot say they 
 feel an abiding conviction, to a moral cer- 
 tainty, of the truth of the charge. The 
 burden of proof is upon the prosecutor. All 
 the presumptions of law independent of evi- 
 dence are in favor of innocence ; and every 
 person is presumed to be innocent until he 
 is proved guilty. If upon such proof there 
 is reasonable doubt remaining, the accused 
 is entitled to the benefit of it by an acquit- 
 tal. For it is not sufficient to establish a 
 probability, though a strong one arising from 
 the doctrine of chances, that the fact charged 
 is more likely to be true than the contrary ; 
 but the evidence must establish the truth 
 of the fact to a reasonable and moral cer- 
 tainty; a certainty that convinces and di- 
 rects the understanding and satisfies the 
 reason and judgment of those who are bound 
 to act conscientiously upon it. This we take 
 to be proof beyond reasonable doubt ; because 
 if the law, which mostly depends upon consid- 
 erations of a moral nature, should go further 
 than this, and require absolute certainty, it 
 would exclude circumstantial evidence al- 
 together." Per Shaw, C. J., in Com. v. Webster, 
 5 Cush. (Mass.) 320, 52 Am. Dec. 711; Schmidt 
 v. Ins. Co., 1 Gray (Mass.) 534; Bethell v. 
 Moore, 19 N. C. 311 ; State v. Goldsborough,
 
 DOUBT 
 
 931 
 
 DOUBT 
 
 Houst. Cr. Rep. (Del.) 316. In approving 
 the opinion of Shaw, C. J., the court in Peo- 
 ple v. Wreden, 59 Cal. 395, says: "There can 
 be no 'reasonable doubt' of a fact after it 
 has been clearly established by satisfactory 
 proof." No man should be deprived of life 
 under the form of law unless the jury can 
 say upon their conscience that the evidence 
 is sufficient to show beyond a reasonable 
 doubt tlie existence of every fact necessary 
 to constitute the crime charged; Davis v. U. 
 S., L60 U. S. 469, 1G Sup. Ct. 353, 40 L. Ed. 
 499. 
 
 Keasonable doubt is the result of the 
 proof, not the proof itself; whereas the pre- 
 sumption of innocence is one of the instru- 
 ments of proof going to bring about the proof 
 from which reasonable doubt arises; thus 
 one is a cause and the other an effect. To 
 say that one is the equivalent of the other 
 is therefore to say that Legal evidence can 
 be excluded from the jury, and that such 
 exclusion may be cured by instructing them 
 correctly in regard to the method by which 
 they are required to reach their conclusions 
 upon the proof actually before thom ; Coffin 
 v. U. S., 156 U. S. 432, 15 Sup. Ct. 394, 39 
 L. Ed. 4S1. It must be an actual, substan- 
 tial doubt, arising from the evidence or want 
 of evidence in the case; Eangford v. State, 
 32 Neb. 782, 49 N. W. TGG. 
 
 If the evidence produced in a criminal 
 action be of such a convincing character 
 that the jurors would unhesitatingly be gov- 
 erned by it in the weighty and important 
 matters of life, they may be said to have 
 no reasonable doubt respecting the guilt or 
 innocence of the accused, notwithstanding 
 the uncertainty which attends all human 
 evidence. Therefore, a charge to the jury 
 that if after an impartial comparison and 
 consideration of all the evidence, thej 
 truthfully say that they have an abiding 
 conviction of the defendant's guilt, such as 
 they would be willing to act upon in the 
 more weighty and important matters relating 
 to their own affairs, they have no n 
 able doubt, is not erroneous: Hopt v. Utah, 
 120 U. S. 431, 7 Sup. Ct. 614, 30 L. Ed. 708. 
 Proof "beyond a reasonable doubt" is not 
 beyond all possible or imaginary doubt, but 
 such proof as precludes every reasonable 
 hypothesis except that which it tends to sup- 
 port. It is proof "to a moral certainty," as 
 distinguished from an absolute certainty. As 
 applied to a judicial trial for crime, the 
 two phrases are synonymous and equivalent; 
 and each signifies such proof as satisfies the 
 Judgment and consciences of the jury, as 
 reasonable men, and applying their reason to 
 the evidence before them, that the crime 
 charged has been committed by the defend- 
 ant, and so satisfies them as to leave no 
 other reasonable conclusion possible; Com. 
 v. Costley. 118 Mass. 24. It must be founded 
 on a consideration of all the circumstances 
 i-nd evidence, and not on mere conjecture or 
 
 speculation; Kennedy v. State, 107 Ind. 144, 
 G N. E. .•;•'."., 57 Am. Bep. 99; and must not 
 be a mere mistaking of the imagination or 
 misplaced Bympathj . v. Murphy, 6 
 
 Ala. 345; but natural and substantial, not 
 forced or fanciful; State v. Bodekee, 34 la. 
 520; such an honest uucertai: 
 the minds of a candid, impartial and dl 
 jury as fairly strikes the mind 
 
 and clouds the judgment; Com. v. Drill 
 Pa. 9. It must not be a more fanciful, \ 
 speculative or possible doubt, but a n 
 able, substantial doubt, remaining after the 
 consideration of all the evidence: 
 Dzzo, G Pennew. (Del.) 212, 65 a 1 1 . 775. 
 subject is discussed in an address by J. S. 
 Burger, before the State Bar Association of 
 
 : 11 Am. Lawy. 440; and the history 
 of the doctrine IS state.!, as well as the dif- 
 ficulty and danger Of trying to define it. 
 though the doc; 
 
 "as the Bhield of innocence and the champion 
 of liberty." It is said to have been 
 used in the treason trials in Dublin in 
 
 A much quoted and much criticized defi- 
 nition is that of Dillon, J., in St 
 trander, 18 [a. 437, approved to Polln v. 
 
 1 1 Neb. 540, 18 X. W. 898. Other at- 
 tempts to define reasonable doubt are state 
 v. Hayden, 15 la. 17; State v. Nelson, 11 
 Nev. 3" l : 1 F. & Tin. 383; D. S. v. Jat 
 29 Fed. 503; state v. Keajley, 26 Kan. 77, 
 per Brewer, J.; People v. Finley, 38 Midi. 
 482; Lane v. State, 41 Tex. Cr. R. 560, 55 
 S. W. 831; State v. Swain. 68 Mo. 605. The 
 difficulty of a satisfactory definition is dis- 
 I in 57 Am. L. R< ■:. 419, where C. J. 
 Shaw's definition is criticized and that in 
 Com. v. Costley, 118 Mass. 1, gupra, is sug- 
 gested as better. And in TTopt v. Utah, 120 
 U. S. 430, 7 Sup. Ct. 614, 30 L. Ed. T 
 was approved as contrasted with O. J. Shaw's 
 definition. The whole subject was there con- 
 sider, d and the necessity was stated of al- 
 lowing the trial Judge considerable latitude 
 in the way of explanation. 
 
 In the Tichborne Case I burn 
 
 charged the jury: "It is the business of the 
 
 uiieii to bring home guilt to the ac- 
 cused to the satisfaction of the jury. But 
 
 Ubt of which the a ■ . led to 
 
 the benefit must be the doubt that a rational 
 — that a sensible — man may fairly enter- 
 tain, not the doubt of a vacillating mind 
 that has not the moral courage to d< 
 but shelters itself in vain scepticism." 14 
 Ilarv. I. Rev. 
 
 An instruction that "reasonable doubt is a 
 doubt you can give a reason foi 
 neous; Abbott v. Territory, -jo OkL HI 
 Pac. 17D. Id I.. R. A. i.V S.) 260, 129 Am. St. 
 
 ms; Pet Ine v. Now Me: l< », 201 
 489, 119 O. C. A. 58L It is said that to re- 
 quire an affirmative reason for a reasonable 
 doubt of guilt places upon the defendant the 
 burden of furnishing to every juror a rea- 
 son why he is not satisfied as to guilt, with
 
 DOUBT 
 
 932 
 
 DOWER 
 
 the certainty which the law requires; also, 
 that such an instruction casts on the defend- 
 ant the burden of furnishing reasons for not 
 finding him guilty, whereas it is on the pros- 
 ecution to make out a case excluding all rea- 
 sonable doubt; State v. Cohen, 108 la. 208, 
 78 N. W. 857, 75 Am. St. Rep. 213. So in 
 Carr v. State, 23 Neb. 749, 37 N. W. 630; 
 Darden v. State, 73 Ark. 315, 84 S. W. 507. 
 In State v. Sauer, 38 Minn. 438, 38 N. W. 
 355, it was said that there is a serious ob- 
 jection to requiring a juror to be able to 
 express in words the ground of his doubt, 
 because he might well have a reasonable 
 doubt and yet find it difficult to give a rea- 
 son for it. 
 
 But a contrary view is held in Butler v. 
 State, 102 Wis. 364, 78 N. W. 590 : "A doubt 
 cannot be reasonable unless there is a rea- 
 son for it, and if such reason exists, it can 
 be given." To the same effect: People v. 
 Guidici, 100 N. Y. 503, 3 N. E. 493 ; State v. 
 Rounds, 76 Me. 123. In State v. Jefferson, 
 43 La. Ann. 995, 10 South. 199, it was held 
 to be a "serious, sensible doubt such as you 
 could give a good reason for." The doubt 
 ought not to be a capricious one, but a 
 substantial doubt, which the jury could give 
 a reason for; Marshall v. U. S., 197 Fed. 
 511, 117 C. C. A. 65. 
 
 In Alabama there are numerous and con- 
 flicting cases. 
 
 There are also cases which, though criti- 
 cizing the rule that requires the jury to have 
 a reason for a doubt, have held that its ap- 
 plication in a charge is not a reversible er- 
 ror, if it be part of a charge defining the 
 difference between a reasonable and a vague 
 doubt; Thibert v. Supreme Lodge, 78 Minn. 
 450, 81 N. W. 220, 47 L. R. A. 136, 79 Am. St. 
 Rep. 412; Klyce v. State, 78 Miss. 450, 28 
 South. 827; People v. Stubenvoll, 62 Mich. 
 329, 28 N. W. 8S3. 
 
 The cases are collected in 16 L. R. A. (N. 
 S.) 260, note. 
 
 DOVE. See Animal. 
 
 DOWAGER. A widow endowed; one who 
 has a jointure. 
 
 In England, this is a title or addition 
 given to the widow of a prince, duke, earl, 
 or other nobleman, to distinguish her from 
 the wife of the heir, who has the right to 
 bear the title ; 1 Bla. Com. 224. 
 
 DOWER (from Fr. doner, to endow). The 
 provision which the law makes for a widow 
 out of the lands or tenements of her hus- 
 band, for her support and the nurture of 
 her children. Co. Litt. 30 o; 2 Bla. Com. 
 130; 4 Kent 35; Washb. R. P. 146. 
 
 There were five species of dower in Eng- 
 land (Littleton § 51): 
 
 1. Bower ad ostium ecclesice, where a man 
 of full age, on. coming to the church-door to 
 be married, endowed his wife of a certain 
 portion of his lands. 
 
 2. Dower ex assensu patris, which differed 
 
 from dower ad ostium ecclesia; only in being 
 made out of the lands of the husband's fa- 
 ther and with his consent. 
 
 3. Bower by common law, where the wid- 
 ow was entitled during her life to a third 
 part of all the lands and tenements of which 
 ber husband was seised in law or in fact of 
 an inheritable estate, at any time during the 
 coverture, and which any issue she might 
 have had might by possibility have inherited. 
 
 4. Bower by custom, where a widow be- 
 came entitled to a specified portion of her 
 husband's lands in consequence of some lo- 
 cal or particular custom. 
 
 5. Bower de la plus belle (de la pluis 
 beale), where the widow on suing the guard- 
 ian in chivalry for dower, was required by 
 him to endow herself of the fairest portion 
 of any lands she might hold as guardian in 
 socage, and thus release from dower the lands 
 of her husband held in chivalry. This was 
 abolished along with the military tenures, 
 of which it was a consequence; 2 Bla. Com. 
 132, n. 
 
 Of tbese, the first and second were created 
 by the act of the parties, the third and 
 fourth by the law. The two classes represent 
 the old order and the new. 3 Holdsw. Hist. 
 E. L. 157. In later days the former class 
 was superseded by the latter class or by 
 jointures. 
 
 By the Dower Act in England (1833) the 
 widow is entitled to dower out of equitable 
 estates as well as legal, but only out of those 
 estates to which the husband is beneficially 
 entitled at his, death. 
 
 Dower in the United States, although reg- 
 ulated by statutes differing from each other 
 in many respects, conforms substantially to 
 that at the common law; 1 Washb. R. P. 
 149 ; see Schoul. Hus. & W. 455. 
 
 Where a statute provided that no estate 
 in dower be allotted to the wife on the death 
 of her husband, it took away a wife's in- 
 choate right of dower in lands previously 
 alienated by her husband without joining 
 her in the deed; Richards v. Land Co., 47 
 Fed. 854; the inchoate right of the wife is 
 not such a vested right or interest as cannot 
 be taken away by legislative action; Rich- 
 ards v. Land Co., 54 Fed. 209, 4 C. C. A. 290. 
 
 Of what estates the wife is dowable. Her 
 right to dower is always determined by the 
 laws of the place where the property is sit- 
 uate; Duncan v. Dick, Walker (Miss.) 281; 
 O'Ferrall v. Simplot, 4 la. 381; Lamar v. 
 Scott, 3 Strobh. (S. C.) 562. 
 
 She is entitled to one-third of all lands, 
 tenements, or hereditaments, corporeal and 
 incorporeal, of which her husband may have 
 been seized during the coverture, in fee or 
 in tail; 2 Bla. Com. 131; Gorhain v. Daniels, 
 23 Vt. 611. 
 
 She was not dowable of a term for years, 
 however long; Park, Dow. 47; Spangler v. 
 Stanler, 1 Md. Ch. Dec. 36. 
 
 The inheritance must be an entire one,
 
 DOWER 
 
 933 
 
 
 and one of which the husband may have cor- 
 poreal seisin or the right of immediate cor- 
 poreal seisin ; Plowd. 506; Caruthers v. Wil- 
 son, 1 Sin. & M. < Miss, i 527. 
 
 Dower does not attach in an estate held in 
 joint tenancy; but the widow of the survivor 
 has dower; Co. Litt § 45; Mayburry v. 
 Brien, 15 Pet (U. 8.) 21, 10 L. Kd. did. 
 But where the principle of survivorship is 
 abolished, this disability does not exist; Da- 
 vis v. Logan, 9 Dana (Ky.) 185; Heed V. 
 Kennedy, 2 Strobh. (S. C.) 67. 
 
 An estate in common is subject to dower; 
 Wilkinson v. Parish, •". Paige, Ch. (N. I.) 
 653; Totten v. Stuyvesant, •"> Edw. Ch. (N. 
 Y.) 500; rynchon v. Lester, 8 Gray I ! 
 314; Clift v. Clift, 87 Tenn. 17, !i S. W. 198, 
 860; Parrish v. Parrish, SS Va. 529, 14 S. B. 
 325 : Chew v. Chew, 1 Md. 172. But the dow- 
 er in land owned by the husband in common 
 with others is divested by partition thereof 
 in a suit to which the husband is a party. 
 though the wife is not joined; Ilolley v. 
 Glover. 36 S. C. 404, 15 S. E. G05, 1G L. R. 
 A. 770, 31 Am. St. Rep. 883. See 2 Can. L. 
 T. 15. 
 
 In the case of an exchange of lands, the 
 widow may claim dower in either, but not 
 in both ; Co. Litt. 31 6 ; if the interests are 
 unequal, then in both; Wilcox v. Randall. 
 
 7 Barb. (N. Y.) 633; Mosher v. Mosher, 32 
 Me. 412; Cass v. Thompson, 1 N. II. 65, 8 
 Am. Dec. 36. 
 
 She is entitled to dower in mines belong- 
 ing to her husband, if opened by him in 
 his lifetime on his own or another's land ; 
 
 1 Taunt. 402; Coates v. Cheever, 1 Cow. 
 (N. Y.) 460; Lenfers v. Henke. 73 111. 405, 
 24 Am. Rep. 263; Moore v. Rollins, 45 Me. 
 493. See In re Seager's Estate. '.>•-' Midi. 
 186, 52 N. W. 29!). where she was held to 
 be entitled whether the mines were open- 
 ed before or after her husband's death; 
 Black v. Min. Co., 49 Fed. 549; id. 52 Fed. 
 859, 3 C. C. A. 312. See also Seager v. Mc- 
 Cabe, 92 Mich. ISO, 52 N. W. 299. 16 L. R. 
 A. 247. But in Marshall v. Mellon, 179 Pa. 
 371, 36 Atl. 201, 35 L. R. A. 816, 57 Am. St. 
 Rep. 601 she was held to have no right to 
 operate for oil or gas, where such opera lions 
 had not commenced during the lifetime of 
 her husband. Where a statute gave the sur- 
 viving husband or wife a one-third Interesl 
 in the real estate of the other, the life ten- 
 ant is entitled only to the Income anon one- 
 third of the oil produced; Swayne v. Oil Co., 
 98 Tex. 597, 86 S. W. 740, 69 1>. it. A. 9S6, 
 
 8 Ann. Cas. 1117. 
 
 She had the right of dower in various 
 species of Incorporeal hereditaments: as, 
 rights of fishing, and rents; ('.». Litt. 32c; 
 
 2 Bla. f'oni. 132; chase's Case, 1 Bland, Ch. 
 (Md.^ 227, 17 Am. Dec. 277; but the rents 
 should be estates of inheritance; 2 Cruise. 
 Dig. 291. 
 
 In most of the states she is dowable of 
 wild lands ; Chapman v. Schroeder, 10 Ga. 
 
 321 ; Macaulay's Ex'r v. Land Co., 2 Rob. 
 i. Va.) 507; Hi' kman v. li Dana 
 
 (Ky. i 121 ; Allen v. M 41S ; 
 
 Pike v. Underbill's Adm'r, 124; 
 
 Brown v. Richards, 17 x. J. s-yner 
 
 v. Speed, 68 N. I - tm, Kuhn v. Kaler, 
 
 1 1 Me. !"'■»; Johnson v. 
 9 Am. Dec. 35. 
 
 She has no right ol dow ex li 
 claim; Well's Guardian v. 6 Mo. 
 
 Davenport v. Farrar, i Beam, (ill.) 
 ::i I. 
 
 At law there was nothing to prevent her 
 from having dower in land- which her bus- 
 hand held as trustee. Put, as she would 
 take it subject to the trust, courts of equity 
 were in the habit of restraining her from 
 claiming her dower In lands which she 
 would he compelled to hold entirely to an- 
 other's use. till it was finally establl 
 both in England and the 1'nited States, that 
 she is oot entitled in such case to d 
 Firestone v. Firestone. 2 Ohio St 415; Bart- 
 lott v. Gouge, 5 B. Monr. (Ky.) 152; Park, 
 Dow. 105. 
 
 At common law she was not dowable of 
 the estate of a cestui que trust; J Sch. & 
 L. 387; 4 Kent 43; Lenox v. Notrebe, Hempst 
 251, Fed. Cas. No. 8,246c. Bee Watsoi 
 tate, 139 Pa. 461, 22 AtL 638. But by the 
 Dower Act this restriction was removed in 
 England; 3 & 4 Will. IV. c. 105; l B 
 Eq. Jur. 501. The common-law mlo that a 
 widow could only have dower in the legal 
 estates of the husband has been either ex- 
 pressly or impliedly changed by statute in 
 the majority of states, and she now has a 
 right of dower in his equitable estab 
 well, but only in those of which he died 
 ed ; In re Ransom, 17 Fed. L'."..". : Morse v. 
 Thorsell, 78 111. 604; and if the husband has 
 aliened an equitable estate, although his 
 wife may not have consented er is 
 
 defeated; Taylor v. Kearn, 68 111. 341; Mil- 
 ler v. Stump. :: Gill (Md. ' 304. In Delaware 
 a widow is not dowable out of an equitable 
 estate of her deceased husband, 
 intestate lands; Cornog v. Cornog, 3 Del. 
 Ch. 407, but the law upon this subji 
 not uniform; Stelle v. Carroll. 12 
 S.i 201, 9 L. Ed, 1056; Hamlin v. Hamlin. 
 IP .Me. Ml; Shoemaker v. Walker, 2 S. ft 
 
 it. (Pa.) 554; Etowton v. Etowton, l Hen. & 
 m. (Va.) 92. in Borne states, dower in equi- 
 table estates is given by statute-; while in 
 others the severe COmmon-law' rule has not 
 been strictly followed by the courts; Ilawley 
 7. James, ."• Paige, Ch. (N. V. 818; Lawson 
 v. Morton, »'> Dana (Ky.) 471; i^-wis v. 
 •Tames. 8 Ilumphr. (Tenn.) 537; Thompson 
 ompson, 46 N. C. 430; Miller v. Stump, 
 
 3 Gill I Md.) •"•"1. 
 
 A mortgagee's wife, although her husband 
 has the technical seisin, had no dowable in- 
 terest till the estate heroines irredeemable; 
 
 4 Dane, AOr. G71 ; 4 Kent 42; Foster v.
 
 DOWER 
 
 934 
 
 DOWER 
 
 Dwinel, 49 Me. 53, 2 Ves. Jr. 631; Waller v. 
 Waller's Adm'r, 33 Gratt. (Va.) 83. 
 
 A widow was not dowable of an equity 
 of redemption under the common law ; In re 
 Ransom, 17 Fed. 331; L. R. 6 Ch. D. 218; 
 Cox v. Garst, 105 111. 342; Glenn v. Clark, 
 53 Md. 607 ; Pickett v. Buckner, 45 Miss. 243 ; 
 Hopkinson v. Dumas, 42 N. H. 296; Eddy v. 
 Moulton, 13 R. I. 105; nor did the English 
 courts admit the doctrine until the statute 
 of 1833 ; Ld. Ch. Redesdale in 2 S. & L. 388 ; 
 but, as was said by Chancellor Bates in 
 Cornog v. Cornog, 3 Del. Ch. 407, the Ameri- 
 can courts, being free to carry the equitable 
 view of mortgaged estates to its logical re- 
 sults, have uniformly allowed dower in an 
 equity of redemption ; Mayburry v. Brien, 15 
 Pet. (U. S.) 38, 10 L. Ed. 646; Simonton v. 
 Gray, 34 Me. 50; Newton v. Cook, 4 Gray 
 (Mass.) 46; Titus v. Neilson, 5 Johns. Ch. 
 (N. Y.) 452; Taylor v. McCrackin, 2 Blackf. 
 (Ind.) 262; Heth v. Cocke, 1 Rand. (Va.) 
 344; Fish v. Fish, 1 Conn. 559; Hastiugs v. 
 Stevens, 29 N. H. 564; Hinchman v. Stiles, 
 9 N. J. Eq. 361 ; but after the surplus pro- 
 ceeds of sale have been applied by the sher- 
 iff to a judgment against the husband, it is 
 too late to assert the widow's claim to equi- 
 table dower; Gemmill v. Richardson, 4 Del. 
 Ch. 599. .See on this subject 11 Can. L. T. 
 281. 
 
 In reference to her husband's contracts 
 for the purchase of lands, the rule seems to 
 be, in those states where dower is allowed 
 in equitable estates, that her right attaches 
 to her husband's interest in the contract, if 
 at his death he was in a condition to enforce 
 specific performance; Hawley v. James, 5 
 Paige, Ch. (N. Y.) 318; Smith v. Addleman, 
 5 Blackf. (Ind.) 406; Rowton v. Rowton, 1 
 Hen. & M. (Va.) 92; Robinson v. Miller, 1 
 B. Monr. (Ky.) 93; Reed v. Whitney, 7 Gray 
 (Mass.) 533; Owen v. Robbins, 19 111. 545; 
 Thompson v. Thompson, 46 N. C. 430. If his 
 interest has been assigned before his death, 
 or forfeited, or taken on execution, her dow- 
 er-right is defeated ; Pritts v. Ritchey, 29 Pa. 
 71; Secrest v. McKenna, 6 Rich. Eq. (S. C.) 
 72; Dean's Heirs v. Michell's Heirs, 4 J. J. 
 Marsh. (Ky.) 451; Heed v. Ford, 16 B. Monr. 
 ^Ky.) 114; Rowton v. Rowton, 1 Hen. & M. 
 (Va.) 91. 
 
 She is entitled to dower in lands actually 
 purchased by her husband and upon which 
 the vendor retains a lien for the unpaid pur- 
 chase-money, subject to that lien; McClure 
 v. Harris, 12 B. Monr. (Ky.) 261; Crane v. 
 Palmer, 8 Blackf. Ind. 120 ; Ellicott v. Welch, 
 2 Bland. Ch. (Md.) 242; Williams v. Woods, 
 1 Humphr. (Tenn.) 408; or upon which her 
 husband has given a mortgage to secure the 
 purchase-money, subject to that mortgage; 
 Henagan v. Harllee, 10 Rich. Eq. (S. C.) 
 285. See Seibert v. Todd, 31 S. C. 206, 9 S. 
 E. 822, 4L.R.A, 606. 
 
 She is not entitled to dower in partnership 
 lands purchased by partnership funds and 
 
 for partnership purposes, until the partner- 
 ship debts have been paid ; Burnside v. Mer- 
 rick, 4 Mete. (Mass.) 537; Woolridge v. Wil- 
 kins, 3 How. (Miss.) 372; Loubat v. Nourse, 
 5 Fla. 350 ; Duhring v. Duhring, 20 Mo. 174 ; 
 Drewry v. Montgomery, 28 Ark. 259; Willet 
 v. Brown, 65 Mo. 148, 27 Am. Rep. 265; 
 Campbell v. Campbell, 30 N. J. Eq. 417. She 
 has been denied dower in land purchased by 
 several for the purposes of sale and specu- 
 lation; Coster v. Clarke, 3 Edw. Ch. (N. Y.) 
 428; it has been treated as personalty so 
 far as was necessary to settle the partner- 
 ship affairs, the right of dower being' sub- 
 ject to the debts of the firm; Young v. 
 Thrasher, 115 Mo. 222, 21 S. W. 1104; Mal- 
 lory v. Russell, 71 la. 63, 32 N. W. 102, 60 
 Am. Rep. 776; Wheatley's Heirs v. Calhoun, 
 12 Leigh (Va.) 264, 37 Am. Dec. 654. 
 
 Sometimes she is allowed dower out of 
 money, the proceeds of real estate sold by 
 order of court, or by the wrongful act of an 
 agent or trustee ; Jennison v. Hapgood, 14 
 Pick. (Mass.) 345; Beavers v. Smith, 11 Ala. 
 33; Church v. Church, 3 Sandf. Ch. (N. Y.) 
 434; Willet v. Beatty, 12 B. Monr. (Ky.) 
 172; Thompson v. Cochran, 7 Humphr. 
 (Tenn.) 72, 46 Am. Dec. 68. 
 
 Her claim for dower has been held not 
 subject to mechanics' liens ; Shaeffer v. 
 Weed, 3 Gilman (111.) 511; Nazareth Liter- 
 ary & Benevolent Inst. v. Lowe, 1 B. Monr. 
 (Ky.) 257.' 
 
 The principle of equitable contribution ap- 
 plies equally to dower, as to other incum- 
 brances ; Eliason v. Eliason, 3 Del. Ch. 260. 
 She is not entitled to dower in an estate 
 pur auter vie; Gillis v. Brown, 5 Cow. (N. 
 Y.) 388; or in a vested remainder; Fisk v. 
 Eastman, 5 N. H. 240; Moore v. Esty, 5 N. 
 H. 479; Blow v. Maynard, 2 Leigh (Va.) 29; 
 Reynolds v. Reynolds, 5 Paige, Ch. (N. Y.) 
 161; or in reversion of the husband, where 
 he dies before the termination of the life 
 estate; Kellett v. Shepard, 139 111. 433, 28 
 N. E. 751, 34 N. E. 254. 
 
 In some states she has dower only in what 
 the husband died seised of; Winstead v. 
 Winstead's Heirs, 2 N. C. 243 ; 4 Kent 41. 
 
 The wife's dower will be protected against 
 the voluntary conveyance of the husband 
 made pending a marriage engagement, under 
 the same circumstances in which the hus- 
 band is relieved against an ante-nuptial set- 
 tlement by the wife; Chandler v. Hollings- 
 worth, 3 Del. Ch. 99. This case is consider- 
 ed by Washburn and Bishop as the leading 
 case and is approved by both authors; 3 
 Washb. R. P. 359 ; 2 Bish. M. W. § 343, note 
 2, quoting the greater portion of the opinion 
 of Bates, Ch. 
 
 Requisites of. Three things are usually 
 said to be requisite to the consummation of 
 a title to dower, viz. : marriage, seisin of the 
 husband, and his death; 4 Kent 36; 1 
 Washb. R. P. 169; King v. King, 61 Ala. 481 ; 
 Wait v. Wait, 4 N. Y. 99.
 
 DOWER 
 
 935 
 
 DO'.. 
 
 The marriage must be a legal one; though, 
 if voidable and not void, she will have her 
 dower unless it is dissolved in his lifetime; 
 Smart v. Whaley, 6 Smedes & M. (Miss.) 
 308; Co. Litt. 33 o; 1 Cruise, Dig. 101; Big- 
 gins v. Breen, 9 Mo. 501 ; Jones v. Jones, 2S 
 Ark. 21. 
 
 The husband must hare been seised in the 
 premises of an estate of inheritance at some 
 time during the coverture. It may not be 
 an actual seisin; a seisin in law with the 
 right of Immediate corporeal seisin is suffi- 
 cient; Eldredge v. Forrestal, 7 Mass. 253; 
 Mann v. Edson, 39 Me. 25; Dunham v. Os- 
 born, 1 Paige, Ch. (N. T.) 035; Shoemaker 
 v. Walker, 2 S. & R. (Pa.) 554; 1 Cruise, 
 Dig. 166; Young v. Young, 45 N. J. Eq. 27, 
 16 Atl. 921 ; Houston v. Smith. SS N. C. 312. 
 -sion by a widow of the mansion house 
 of her husband, and her unassignod right 
 of dower, do not prevent the heir from being 
 seised thereof so that his widow may ac- 
 quire dower therein ; Null v. Howell, 111 
 Mo. 273, 20 S. AY. 24. It is not necessary 
 that the seisin of the husband should be a 
 rightful one. The widow of a disseisor may 
 have dower against all who have not the 
 rightful seisin; Scribn. Dow. 702. See 
 Toomey v. McLean, 105 Mass. 122. 
 
 So, although the estate is a defeasible one, 
 provided it is one of inheritance, she may 
 claim her dower until it is defeated; Co. 
 Litt. 241; Doughty v. Doughty, 7 N. J. Eq. 
 241 ; 10 Co. 95. 
 
 The seisin is not required to remain in the 
 husband any particular length of time. It 
 is sufficient if he is seised but an instant, to 
 his own benefit and use; Young v. Tarbell, 
 37 Me. 509; 2 Bla. Com. 132; Kade v. Laub- 
 er, 48 How. Pr. (N. Y.) 382; but a mere in- 
 stantaneous seisin for some other purpose 
 than proprietorship will not give the wife 
 dower; Stanwood v. Dunning, 14 Me. 290; 
 Wooldridge v. Wilkins. 3 How. (Miss.) 309; 
 Edmondson v. Welsh, 27 Ala. 578 ; McCauley 
 v. Grimes. 2 G. & J. (Md.) 31S, 20 Am. Dec. 
 434; Emerson v. Harris, 6 Mete. (Mass.) 
 475. 
 
 Where he purchases land and gives a 
 mortgage at the same time to secure the pur- 
 chase-money, such incumbrance takes prec- 
 edence of his wife's dower; Stow v. Tifft, 
 15 Johns. (N. Y.) 458, 8 Am. Dec. 200; Reed 
 v. Morrison, 12 S. & R. (Pa.) 18; Holbrook 
 v Finney. 4 Mass. 500, 3 Am. Dec. 243; 
 Moore v. Esty, 5 N. II. 479; Griggs v. Smith. 
 12 N. J. L. 22; Bogie v. Rutledge, 1 Bay < S. 
 C.) 312; Smith v. Stanley, 37 Me. 11, 58 Am. 
 Dec. 771. 
 
 The death of the husband. 1 Cruise, Dig. 
 168. What was known as civil death in Eng- 
 land did not give the wife right of dower; 
 2 Crabb. R. P. 130; Wooldridge v. Lucas. 7 
 B. Monr. (Ky.) 51; Platner v. Sherwood, 6 
 Johns. Ch. (N. Y.) 129. Imprisonment for 
 life is declared civil death in some of the 
 states. 
 
 Hoic doner may be prevented or def. 
 At common law, alienage on the part et the 
 husband or wife pre t from at- 
 
 taching; 2 Bla. Com. 131; Priest v. Cum- 
 mingB, 10 Wend. (X. Y. ) 017; Stokes v. 
 O'FaUon, 2 Mo. 32. ] bin 
 tlally done away with In El 
 Vict. c. <;<;. and is alm< t wholly al 
 the United States. See Ax 
 
 It is well established thai I 
 i^ defeated whenever tb< C ber hus- 
 
 band is defeated by a paramount tltli 
 Lilt. 2 in b; 4 Kent 48. 
 
 The foreclosure of a mortgage given by 
 the busband before marriage, or by the wife 
 and husband after marriage, will defeat ber 
 right of dower; Stow v. Tifft, 15 Johns. (N. 
 Y. I 458, 8 Am. Dec 1 v. Morrison, 
 
 12 S. & I j. (Pa.) 18; Nottingham v. Calvert, 
 
 1 Ind. olit : Bisland v. Hewett, n Si 
 
 & M. (Miss.) 164; Wilson v. Davisson, 2 Rob. 
 (Va.) 384; Ingram v. Morris. 4 Ban*. (Del) 
 111; Shope v. Schaffner, 146 111. 470, 30 N. 
 E. 872; Boorum v. Tucker, 51 N. .7. Eq. 135, 
 2f, Atl. 456. And in Pennsylvania, wl 
 the wife joined or not. Like force would be 
 given to a vendor's lien or mortgage for the 
 purchase-money, or to a judgment lien out- 
 standing at the time of marriage. 
 
 Her right to dower In the estate which 
 she has joined with her husband In mort- 
 gaging is good against every one but the 
 tgee; Whitehead v. Middleton, 2 HoW. 
 (Miss.) 692; Eaton v. Simonds, 14 Pick. 
 (Mass.) 98; Hastings v. Ste - N. EL 
 
 564; Young v. Tarbell, 37 Me. 509. The 
 same is true in regard to an estate mortgag- 
 ed by her husband before coverture: Baton 
 v. Simonds, 14 Tick. (Mass.) 98. In neither 
 case would the hushand have the right to 
 cut off her claim for dower by a release to 
 the* mortgagee, or an assignment of his eq- 
 uity of redemption: Titus v. Netison, 5 Johns. 
 Ch. (N. Y.) 452; Swaine v. 1 Johns 
 
 Ch. (N. Y.) 482, '.) Am. Dec. 318; Baton v. 
 Simonds, 14 Tick. (Mass.) 98; Mclver v. 
 Cherry, 8 Humphr. (Tenn.) 713; Heth v. 
 Cocke, 1 Rand. (Va.) 344; Simonton v. 
 Gray, 34 Me. 50; Harrison v. Eldridge, ~ N. 
 J. L. 392. As to a purchase and mort 
 for the purchase-money before marriage, In 
 which the busband releases the equity of re- 
 demption after marriage, see Jackson v. 
 Dewitt. 6 Cow. (N. V.) 
 
 An agreement on the part of the husband 
 to convey before dower attaches, if eni 
 will extinguish her claim ; Adklns v. Hohmes, 
 
 2 ind. 197; Bowie v. Berry, 3 Md Ch. 359. 
 Dower will not be defeated by the deter- 
 mination of the estate by natural limitation; 
 as, il" the tenant in fee die without heirs, or 
 
 nant In tail; 8 Co. 34: 4 K< 
 Northern v. Whipp, 12 B. Monr. (Kj 1 
 Whether it will be defeated by a conditional 
 limitation by way of executory devise or 
 Shifting use. is not yet fully settled: Co. Litt. 
 241 a, Butler's note 170 ; Sugd. Pow. 333 ; 3
 
 DOWER 
 
 936 
 
 DOWER 
 
 B. & P. 652. But it seems that the weight 
 of American authority is in favor of sustain- 
 ing dower out of such estates; Evans v. Ev- 
 ans, 9 Pa. 190 ; Milledge v. Lamar, 4 Desaus. 
 (S. C.) 617. See 1 Washb. R. P. 216. 
 
 Dower will be defeated by operation of a 
 collateral limitation : as, in the case of an 
 estate to a man and his heirs so long as a 
 tree shall stand, and tbe tree dies; 3 Prest. 
 Abstr. 373 ; 4 Kent 49. 
 
 In some states it will be defeated by a sale 
 on execution for the debts of the husband; 
 Gardiner v. Miles, 5 Gill (Md.) 94; London 
 v. London, 1 Humphr. (Tenn.) 1; Kennerly v. 
 Ins. Co., 11 Mo. 204 ; Den v. Frew, 14 N. C. 
 3, 22 Am. Dec. 708 ; but see Thomas v. Thom- 
 as, 73 la. 657, 35 N. W. 693. In Missouri 
 it is defeated by a sale in partition; Lee v. 
 Lindell, 22 Mo. 202, 64 Am. Dec. 262. See 
 Jackson v. Edwards, 22 Wend. (N. Y.) 498; 
 Van Gelder v. Post, 2 Edw. Ch. (N. Y.) 577. 
 See 25 Alb. L. J. 3S7. 
 
 It is defeated by a sale for the payment 
 of taxes; Jones v. Devore, 8 Obio St. 430. 
 
 It is also defeated by exercise of the right 
 of eminent domain during the life of the 
 husband. Nor has the widow the right of 
 compensation for such taking. The same 
 is true of land dedicated by her husband to 
 public use; Gwynne v. City of Cincinnati, 3 
 Obio 24, 17 Am. Dec. 576. 
 
 How dower may be barred. A divorce 
 from the bonds of matrimony was at com- 
 mon law a bar to dower ; 2 Bla. Com. 130 ; 
 Wait v. Wait, 4 Barb. (N. Y.) 192; Hinson 
 v. Bush, 84 Ala. 368, 4 South. 410; Pullen 
 v. Pullen, 52 N. J. Eq. 9, 28 Atl. 719; but 
 the woman's right to dower, or something 
 equivalent to it, is reserved by statutes in 
 most of the states, if she be tbe innocent 
 party; Forrest v. Forrest, 6 Duer (N. Y.) 
 102. A judgment of divorce in another 
 state, for cause other than adultery, which 
 has the effect to deprive the wife of dower in 
 the state where rendered, will not have such 
 effect in New York; the United States con- 
 stitution makes a judgment in another state 
 conclusive as to the fact of divorce, but 
 gives no extra-territorial effect on land of 
 the husband; Van Cleaf v. Burns, 133 N. Y. 
 540, 30 N. E. 661, 15 L. R. A. 542. 
 
 By the common law neither adultery alone 
 nor with elopement was a bar to dower ; 2 
 Scrib. Dow. 531 ; but by the statute of West- 
 minster 2d, a wife who eloped and lived in 
 adultery forfeited her dower-right. This 
 provision has been re-enacted in several of 
 the states and recognized as common law in 
 others; Lecompte v. Wash, 9 Mo. 555; Ste- 
 gall v. Stegall, 2 Brock. 256, Fed. Cas. No. 
 13,351; Cogswell v. Tibbetts, 3 N. H. 41; 
 Walters v. Jordan, 35 N. C. 361, 57 Am. 
 Dec. 55S ; 4 Dane, Abr. 676 ; Bell v. Nealy, 1 
 Bailey (S. C.) 312, 19 Am. Dec. 6S6 ; contra, 
 Schiffer v. Pruden, 64 N. Y. 47; Lakin v. 
 Lakin, 2 Allen (Mass.) 45 ; Littlefield v. Paul, 
 69 Me. 527 ; Bryan v. Batcheller, 6 R. I. 543, 
 
 78 Am. Dec. 454. Dower is not barred even 
 if the wife commit adultery, if she be aban- 
 doned by her husband and he be profligate 
 and intemperate and an adulterer ; Rawlins 
 v. Buttel, 1 Houst. (Del.) 224; nor if she be 
 deserted by her husband, will her subsequent 
 seduction and adultery operate as a bar ; 
 Appeal of Nye, 126 Pa. 341, 17 Atl. 61S; 6 
 U. C. C. P. 310; Shaffer v. Richardson's 
 Adm'r, 27 Ind. 122. For an analysis of de- 
 cisions and reference to state statutes on 
 this subject, see 2 Scrib. Dow. 531. 
 
 A widow who had been convicted as acces- 
 sory before the fact to her husband's mur- 
 der was held entitled to dower ; Owens v. 
 Owens, 100 N. C. 240, 6 S. E. 794. 
 
 Dower is barred by an annuity given the 
 wife in a divorce decree, and charged on 
 the husband's real estate, where the wife 
 had taken her maintenance under the de- 
 cree ; Adams v. Storey, 135 111. 448, 26 N. E. 
 582, 11 L. R. A. 790, 25 Am. St. Rep. 392. 
 
 The widoiv of a convicted traitor could 
 not recover dower ; 2 Bla. Com. 130 ; but this 
 principle is not recognized in this country; 
 Wms. R. P. 103, n. 
 
 Nor does she in this country, as at com- 
 mon law, forfeit her dower by conveying in 
 fee tbe estate assigned to her ; 4 Kent 82 ; 
 Wms. R. P. 121, 125, n. ; Robinson v. Miller, 
 
 1 B. Monr. (Ky.) 88. 
 
 The most common mode formerly of bar- 
 ring dower was by jointure ; Scrib. Dow. 3S9 ; 
 Craig's Heirs v. Walthall, 14 Gratt. (Va.) 
 51S ; S'tilley v. Folger, 14 Ohio 610 ; West v. 
 Walker, 77 Wis. 557, 46 N. W. S19. Marriage 
 is a sufficient consideration to support an 
 ante-nuptial contract for release of dower; 
 Shea's Appeal, 121 Pa. 302, 15 Atl. 629, 1 L. 
 R. A. 422; Worrell v. Forsyth, 141 111. 22, 
 30 N. E. 673. Now it is usually done by 
 joining with her husband in conveying the 
 estate. Formerly this was done by levying 
 a fine, or suffering a recovery ; 4 Kent 51 ; 
 
 2 Bla. Com. 137 ; now it is by deed executed 
 with her husband and acknowledged in the 
 form required by statute ; Wms. R. P. 189 ; 
 Coburn v. Herrington, 114 111. 104, 29 N. E. 
 478; Mitch. R. P. 156; which is the mode 
 prevailing in the United States. The hus- 
 band must usually join in the act; Moore 
 v. Tisdale, 5 B. Monr. (Ky.) 352; Ulp v. 
 Campbell, 19 Pa. 361 ; Page v. Page, 6 Cush. 
 (Mass.) 196 ; Shaw v. Russ, 14 Me. 432. 
 
 Words of grant will be sufficient although 
 no reference is made in the deed to dower 
 eo nomine; Dundas v. Hitchcock, 12 How. 
 (U. S.) 256, 13 L. Ed. 978 ; Smith v. Handy, 
 16 Ohio 236. 
 
 In most of the states her deed must be 
 acknowledged, and in the form pointed out 
 by statute; Williams v. Robson, 6 Ohio St. 
 510; Kirk v. Dean, 2 Binn. (Pa.) 341; Scan- 
 Ian v. Turner, 1 Bail. (S. C.) 421; Clark v. 
 Redman, 1 Blackf. (Ind.) 379; which must 
 appear in the certificate ; Elwood v. Klock, 
 13 Barb. (N. Y.) 50. She should be of age
 
 DOWER 
 
 937 
 
 DOWl.R 
 
 at the time; Jones v. Todd, 2 J. J. Marsh. 
 (Ky.) 359; Thomas v. Gammel, 6 Leigh (Va.) 
 
 9; Cunningham v. Knight, 1 Barb. (N. Y.) 
 399; Markham v. Merrett, 7 How. I 
 437, 40 Am. Dec. 7G. She cannot release her 
 dower by parol; see Wood v. Lee, 5 T. P>. 
 Monr. (Ky.) 57; Keeler v. Tatnell, 23 N. .1. 
 L. 62. A parol Bale of la mis in which the 
 husband delive] jslon does do 
 
 elude dower; Williams v. Dawson, 3 Sneed 
 (Tenn.i 316. Bnl it bas been held that she 
 may bar her claim for dower by her own 
 acts operating by way of estoppel; Heth v. 
 Cocke, 1 Rand. (Va.) 344; Dougrey v. Top- 
 ping, 4 Paige, Ch. (N. ST.) 94; Reed v. Mor 
 rison, 12 S. & R. (Pa.) 18; Gardiner v. Miles, 
 5 Gill (Md.) 94. 
 
 A release of dower by a wife direct to her 
 husband will not enable him by his sole 
 deed to convey the land free of dower tight, 
 for, if the release is at all effectual, th 
 hand becomes vested with a fee simple and 
 the dower-right immediately reattaches by 
 operation of law; House v. Fowlc, 22 Or. 
 303, 29 Pac. 800; but where the wife lias 
 power to release her dower by an attorney 
 in fact, she may constitute her husband at- 
 torney for the purpose ; Wronkow v. Oakley, 
 133 X. Y. 505, 31 N. E. 521, 16 L. R. A. 209, 
 28 Am. St. Rep. 661. 
 
 A release of dower has been presumed aft- 
 er a long lapse of time; Barnard v. Edwards, 
 4 N. H. 321; Evans v. Evans, 3 Yeates (Pa.) 
 507. 
 
 At common law there was no limitation 
 to the claim for dower ; 4 Kent 70. As to 
 the statutes in the different states, see id. 
 note; 1 Washb. R. P. 217. Adverse posses- 
 sion for seven years with claim and color 
 of title and payment of taxes will bar a 
 claim of dower; Brian v. .Melton. 125 111. 
 647, 18 N. E. 318; Null v. Howell, 111 Mo. 
 275, 20 S. W. 24; but see Doling v. Clark, 
 83 La. 481, 50 X. W. 57. 
 
 The right to dower does not depend on the 
 existence of the family relation at the death 
 of the husband and is not barred by deser- 
 tion; Nye's Appeal, 126 Pa. 341, 17 Atl. tils. 
 12 Am. St. Rep. 873. 
 
 Upon the doctrine of dots de dote, see 1 
 Washb. R. P. 209. 
 
 In some states the wife may elect to take 
 half of the husband's estate in lieu of dower 
 under certain contingencies; Welch v. An- 
 derson, 28 Mo. 293; or she may accept :i 
 devise In lieu of dower: Nelson v. Brown, 
 66 Hun 311, 20 N. Y. Supp. 978; Stone v. 
 Vandermark, 146 ill. 312, 34 X. B. 150; Ban- 
 nister v. Bannister, 37 S. Q 529, 16 S. E. 612; 
 Goodrum v. Goodrum, 56 Ark. 532, 20 S. W. 
 353. 
 
 It seems that a contract to many on con- 
 dition that the wife should receive ao portion 
 of the husband's lands may be valid; Spiva 
 v. Jeter, 9 Rich. E<]. (S. C.) 434. 
 
 ffoto and by whom dower may be assigned. 
 Her right to have dower set out to her ac- 
 
 crues immediately upon the death of her 
 
 husband; but until it is a 
 
 right to any si rt of the estate; 2 
 
 p.ia. Com. 139. j Magna 
 
 Carta to occupy the prln Ipal . >f her 
 
 husband for fo th, if 
 
 it were on dowable i 
 
 riously recogi Ized In I a< 
 
 McAllister, 2 Mo. L63 
 
 lis-. ( ihaplin v. Simmoi 7 T. B. 
 
 Monr. i Ky. i 337 : St dman v. 1 
 
 Conn. 462. In some stab main 
 
 in posse '"ii of the principal man 
 
 and mi i hereto belonging until dower 
 
 has been assigned; Grimes v. Wilson, 4 
 
 Blackf. ( 1 1 1 1 1 . i 331. This makes her tenant 
 
 in common with the heir to th 
 
 right of dower; and an assignment onlj 
 
 works a severanoe of the tenancy; -1 
 
 62; Stokes v. er, 2 Mo. 163. 
 
 There were two modes of assigning dower; 
 one by "common right," where the assign- 
 ment was by legal process; 
 "against common right." which rested upon 
 the widow's assent and agre ment 
 
 Dower of "common right" must be assign- 
 ed by metes and bounds, where this 
 ble, unless the parties agree to a different 
 form; 2 Penning, 521; 1 Rolle, Abr. 
 Style 276; Perkins 407. 
 
 if assigned "against common right," it 
 must be by indenture to which she is a par- 
 ty; Co. Litt 34 6; Jones v. Brewer, I 
 i Mass.) :U4. 
 
 Where assigned of common right, it must 
 be unconditional and absolute; Co. Litt. -I 
 6, n. 217; 1 Rolle, A.DX. 682; and for her life: 
 i Bright, Busb. & W. .".79. 
 
 Where it is assigned Dot by legal pr 
 
 it must be by the tenant of the freehold; 
 Co. Litt. 35 a. It may be done by an infant; 
 •_> Bla. Com. 136; McCormick v. Taylor, 2 End. 
 336; or by the guardian of the heir; 2 Bla. 
 Com. 136; Young v. Tarbeii. 37 Me 50ft 
 Dower may be assigned In partition; Thom- 
 as V. Thomas. 7:'. la. <<~<~, 35 X. W. 
 
 As between the widow and heir, she takes 
 her dower according to the value of the prop- 
 erty at the time of the assignment; Thomp- 
 son v. Morrow, 5 S. ft R, (Pa.) 290, 8 
 Dec. 358; Wooldridge r. Wilkin-. •"■ Bow. 
 (Miss.) 360; Mosher 7. Mosher, 15 Me. 371; 
 Green v. Tennant, 2 Harr. (Del.) 836; Sum 
 mers v. Babb, 13 ill. 483. 
 
 As between the widow and the husband's 
 alienee. Bhe takes her dOW6T accord 
 
 the value at the time of the alienation; Bale 
 v. James, 6 Johns. Ch. I X. Y.) 258, U 
 
 28 ; Ted v. Baj lor, i Leigh < Va.) 488. 
 This was the ancient and well-established 
 
 rule; Humphrey v. I'hinney, 2 Johns. (N. 
 Jf.) |si ; C.nlm v. Ware. 9 Mass. 218, 6 Am. 
 Dec. 56. But in this country the rule in re- 
 spect to the alienee seems now to be that if 
 the land had been enhanced in value by his 
 labor and Improvements, the widow shall 
 not share in these; Thompson v. Morrow, 5
 
 DOWER 
 
 938 
 
 DOWER 
 
 S. & R. (Pa.) 289, 9 Am. Dec. 358; Catlin v. 
 Ware, 9 Mass. 218, 6 A in. Dec. 56; Tod v. 
 Baylor, 4 Leigh (Va.) 498; Wilson v. Oat- 
 man, 2 Blackf. (Ind.) 223; Barney v. 
 Frowner, 9 Ala. 901 ; Baden v. McKenny, 7 
 Mackey (D. C.) 268; Felch v. Finch, 52 la. 
 563, 3 N. W. 570; McGehee v. McGehee, 42 
 Miss. 747 ; if it has been enhanced by ex- 
 traneous circumstances, such as the rise and 
 improvement of property in the neighbor- 
 hood, she is to have the full benefit of this ; 
 Smith v. Addleman, 5 Blackf. (Ind.) 406; 
 Powell v. M'f'g Co., 3 Mas. 375, Fed. Cas. 
 No. 11,356; Johnston v. Vandyke, 6 McLean, 
 422, Fed. Cas. No. 7,426 ; Wms. R. P. 191, n. 
 
 There seems to be no remedy for her now 
 in eitber country where the land has dete- 
 riorated in value by the waste and misman- 
 agement of the alienee or by extraneous 
 circumstances ; McClanahan v. Porter, 10 
 Mo. 746; see Westcott v. Campbell, 11 R. I. 
 378 ; but she must be content to take her 
 dower in the property as it was at the time 
 of her husband's death ; 1 Washb. R. P. 239. 
 See Sanders v. McMillian, 98 Ala. 144, 11 
 South. 750, 18 L. R. A. 425, 39 Am. St. Rep. 
 19. Where the widow dies without asserting 
 her claim, neither her personal representa- 
 tives, nor those of her assignee of such dow- 
 er right, can maintain an action to have 
 dower admeasured or for a gross sum in 
 lieu thereof; Howell v. Newman, 59 Hun 
 538, 13 N. Y. Supp. 648; Pollitt v. Kerr, 49 
 N. J. Eq. 66, 22 Atl. 800. 
 
 Dower may also be recovered in equity, 
 the jurisdiction of which, as Chancellor 
 Kent says, "has been thoroughly examined, 
 clearly asserted, and definitively establish- 
 ed;" 4 Kent 71 ; and nearly half a century 
 later this language is repeated as correctly 
 expressing the result of the authorities; 
 Bisph. Eq. § 495. The jurisdiction was as- 
 serted in the U. S. at an early period ; Gray- 
 son v. Moncure, 1 Leigh (Va.) 449; Kendall 
 v. Honey, 5 T. B. Monr. (Ky.) 284; Stevens 
 v. Smith, 4 J. J. Marsh. (Ky.) 64, 20 Am.' 
 Dec. 205; Swaine v. Perine, 5 Johns. Ch. (N. 
 Y.) 482, 9 Am. Dec. 318; Badgley v. Bruce, 
 4 Paige, Ch. (N. Y.) 98; and although in 
 New Jersey in the time of Kent the equitable 
 jurisdiction was denied ; 4 Kent 72 ; Harri- 
 son v. Eldridge, 7 N. J. L. 392 ; it was after- 
 wards asserted and sustained ; 1 Green Ch. 
 i>49. The jurisdiction is concurrent with that 
 of courts of law, which must settle the legal 
 title when that is in controversy, "but if 
 that be admitted or settled, full and "effec- 
 tual relief can be granted to the widow in 
 equity both as to the assignment of dower 
 and the damages ;" 4 Kent 71 ; and in many 
 respects the remedy in equity possesses great 
 advantages over that at law ; Bisph. Eq. § 
 496. As to the remedies afforded both by 
 law and equity for the enforcement of dow- 
 er, see 1 Washb. R. P. 226 ; 4 W. R. 459. 
 
 Nature of the estate in dower. Until the 
 death of her husband, the wife's right of 
 
 dower is not an interest in real estate of 
 which value can be predicated ; Moore v. 
 City of New York, 8 N. Y. 110, 59 Am. Dec. 
 473. And although on the death of her hus- 
 band this right becomes consummate, it re- 
 mains a chose in action until assignment; 
 4 Kent 61; Green v. Putnam, 1 Barb. (N. 
 Y.) 500; Johnson v. Shields, 32 Me. 424; 
 Shield's Heirs v. Batts, 5 J. J. Marsh. (Ky.) 
 12; McClanahan v. Porter, 10 Mo. 746; Hil- 
 leary v. Hilleary's Lessee, 26 Md. 289. 
 
 During coverture a wife has such an in- 
 terest in her husband's lands which have 
 been conveyed by him without her joining 
 in the deed, as will make a release by her 
 a valuable consideration ; Howlett v. Dilts, 
 4 Ind. App. 23, 30 N. E. 313. See Brooks 
 v. McMeekin, 37 S. C. 285, 15 S. E. 1019. 
 
 Until assignment, she has no estate which 
 she can convey or which can be taken on 
 execution for her debts ; 2 Keen 527 ; Tomp- 
 kins v. Fonda, 4 Paige, Ch. (N. Y.) 448; 
 Gooch v. Atkins, 14 Mass. 378; Summers v. 
 Babb, 13 111. 483; Rausch v. Moore, 48 la. 
 611, 30 Am. Rep. 412 ; Webb v. Boyle, 63 N. 
 C. 271 ; contra, Powell v. Powell, 10 Ala. 900. 
 
 But where she does sell or assign this 
 right of action, equity will protect the rights 
 of the assignee and sustain an action in the 
 widow's name for his benefit; Lamar v. 
 Scott, 4 Rich. (S. C.) 516; Powell v. Powell, 
 10 Ala. 900 ; Potter v. Everitt, 42 N. C. 152 ; 
 Parton v. Allison, 109 N. C. 674, 14 S. E. 
 107. She may mortgage her undivided dow- 
 er interest, which is valid in equity ; Herr v. 
 Herr, 90 la. 538, 58 N. W. 897. 
 
 She can release her claim to one who is 
 in possession of the lands, or to whom she 
 stands in privity of estate; Blain v. Harri- 
 son, 11 111. 384; Jackson v. Vanderheyden, 
 17 Johns. (N. Y.) 167, 8 Am. Dec. 378; 
 Johnson v. Shields, 32 Me. 424; Saltmarsh 
 v. Smith, 32 Ala. 404; Saunders v. Blythe, 
 112 Mo. 1, 20 S. W. 319 ; 8 L. R. Q. B. D. 31 ; 
 Weaver v. Sturtevant, 12 R. I. 537. 
 
 But as soon as the premises have been set 
 out and assigned to her, and she has entered 
 upon them, the freehold vests in her by vir- 
 tue of her husband's seisin ; Co. Litt. 239 a ; 
 Inhabitants of Windham v. Inhabitants of 
 Portland, 4 Mass. 384; Norwood v. Marrow, 
 20 N. C. 578. Her estate is a continuation 
 of her husband's by appointment of the law ; 
 Conant v. Little, 1 Pick. (Mass.) 189; Baker 
 v. Baker, 4 Greenl. (Me.) 67; Love v. Mc- 
 Clure, 99 N. C. 290, 6 S. E. 247, 250. 
 
 The legislature may change the relative 
 rights of husband and wife after marriage, 
 and may substitute for inchoate dower an- 
 other and larger estate to be carved out of 
 that of the husband after his death ; Noel 
 v. Ewing, 9 Ind. 37; but not after the hus- 
 band's death ; Bottorff v. Lewis, 121 la. 27, 
 95 N. W. 262; nor as against one who has 
 contracted for a judgment lien on the hus- 
 band's property, although such judgment 
 was not entered until after the statute was
 
 DOWER 
 
 939 
 
 DRAFT 
 
 passed; Davidson v. Richardson, 50 Or. 323, 
 91 Tac. 10S0, 17 L. R. A. (N. S.) 319, 12G 
 Am. St. Rep. 7.08. And it is held that a stat- 
 ute enlarging dower by extending it to the 
 husband's equitable estate did Dot apply to 
 a widow married before the statute was 
 passed; Slinglufl v. llubner, 101 Md. 662, 61 
 Atl. 320. 
 
 See Scribner, Dower; Dembitz, Land Ti- 
 tles; Tudor; Washburn; Cruise; Tiedeman, 
 Real Property; Divorce; Electiow of 
 Rights; Assignment of Dower; Qi.wuw 
 tim:. 
 
 DOWRESS. A woman entitled to dower. 
 See Dower. 
 
 DOWRY. Formerly applied to mean that 
 which a woman brings to her husband In 
 marriage: this is now called B portion. 
 This word is sometimes confounded with 
 dower. See Co. Litt. 31 ; La. Civ. Code ; 
 Dig. 23. 3. 7G; Code 5. 12. 20; Buard v. De 
 Russy, 6 Rob. (La.) Ill; Gates v. Legendre, 
 10 Rob. (La.) 74; De Young v. De Young, 
 6 La. Ann. 780; Cutter v. Waddingham; 22 
 Mo. 254. 
 
 DRAFT. An order for the payment of 
 money, drawn by one person on another. 
 Wildes v. Savage, 1 Sto. 30, Fed. Cas. No. 
 17,053. It is said to be a nomen generalissi- 
 mum, and to include all such orders, ibid., 
 per Story, J. It is frequently used in corpo- 
 rations where one agent draws on another; 
 in such case it may be treated either as an 
 accepted bill or a promissory note; 1 Dan. 
 Neg. Inst. 350; Tiedeman, Com. Pap. § 128. 
 Drafts come within a statutory provision 
 respecting "bills and notes for the direct 
 payment of money;" Gilstrap v. R. Co., 50 
 Mo. 491. They are frequently given for 
 mere convenience in keeping accounts, and 
 providing concurrent vouchers, and it is not 
 necessary to present such a draft to the 
 drawee or to give notice of non-payment be- 
 fore suing the corporation ; 1 Dan. Neg. Inst. 
 350; Dennis v. Water Co., 10 Cal. 369; Mob- 
 ley v. Clark, 28 Barb. (N. Y.) 391 ; Shaw v. 
 Stone, 1 Cush. (Mass.) 256. A draft by di- 
 rectors of an assurance company on its 
 cashier was said to contain all that is es- 
 sential to constitute a promissory note; 9 
 C. B. 574. Drafts are frequently used be- 
 tween municipal officers, and are not usual- 
 ly negotiable Instruments; 1 Dan. Neg. Inst. 
 352. But it has been held that municipal 
 warrants or orders for the payment of debts, 
 if authorized and drawn in negotiable lan- 
 guage, may be sued on by the transferee; 
 id. 353; Kelley v. City of Brooklyn, 1 Hill. 
 (N. Y.) 2(55. They must be presented for 
 payment before suit; Tease v. Inhabitants of 
 Cornish, 19 Me. 193; contra. Steel v. Davis 
 County, 2 G. Greene (la.) 469. 
 
 Draft, in a commercial sense, is an allow- 
 ance to the merchant where the duty is as- 
 certained by weight, to insure good weight 
 
 to him; it Is a small allowance In weighable 
 goods, made by the king to the Importer; 
 it is to col that may 
 
 occur from the handling of • In the 
 
 weighing, so thi 
 time, the article will bol 
 Napier v. B 
 No. 10,1 
 
 ;h copy of a U 
 
 og. 
 
 DRAG0 DOCTRINE. The ! 
 Berted by Luis Drago, Mini 
 Affairs of the Argentine Republic, In a let- 
 ter to the Argentine Mil 
 ton, i >ecember 29, ]'-W. that the f< n Ible In- 
 tervention of states to secure th< 
 of public debts due to their citizens from 
 foreign stales is unjustifiable and 
 to the security and peace of the i 
 South America. The doctrine wae 
 but became associated with the nan 
 
 .. owing to his publication of an elabo- 
 rate exposition of it shortly before the Sec- 
 ond Hague Conference. The was 
 brought before the Conference by the United 
 States and a Convention was adopted In 
 which the contracting powers agreed, with 
 some restrictive conditions, not to have re- 
 course to armed force for the recovery of 
 contract debts claimed by their nationals 
 against a foreign state. Biggins, 184-197. 
 
 DRAGOMAN. An Interpreter employed In 
 the east, and particularly at the Turkish 
 court 
 
 DRAIN. To conduct water from one place 
 to another, for the purpose of drying the 
 former. 
 
 The right of draining water through an- 
 other man's land. This is an easement or 
 servitude acquired by grant or preacri 
 See 3 Kent 436; 7 M. ft (i. 354. 
 
 In Goldthwait v. Inhabitants of 
 Bridgwater, 5 Gray (Mass.) 63, it was said 
 that the word drain has no technical • 
 act meaning. It was considered fully in 
 People v. Parks, 58 CaJL 639. 
 
 A state may provide for the construction 
 of canals for draining marshy and malarious 
 
 districts, and of levees to prevent inunda- 
 tions; Bagar v. Reclamation i>i-t.. in r. s. 
 701, 4 Sup. Ct 663, 28 L. Ed. 669. T 
 penses of such works may be charged against 
 
 parties specially benefited and be made a 
 lien upon their properly: id. The law under 
 
 which Buch an assessment Is made does not 
 
 deprive one of property without due i • 
 
 of law; Id Taylor v. Crawford. 7 - -' Ohio St. 
 
 560, Ti N. B. 1065, 69 I.. R, A. BOB. Bee Dot 
 
 i 9 of Law; Emimni- Domain; Taxa- 
 
 tion ; LEGIBLE nvi: l'ou KB : OCT. 
 
 DRAINAGE DISTRICT. The organiza- 
 tion of a drainage district is within the pow- 
 the state: Bagar v. Reclamation 1'ist.. 
 11! 0. S. 701, 4 Sup. Ot 663, 28 L. Ed. 509; 
 for the exclusive benefit of the territory
 
 DRAINAGE DISTRICT 
 
 940 
 
 DRAWING 
 
 within the district; Commissioners of Union 
 Drainage Dist No. 3 v. Com'rs, 220 111. 176, 
 77 N. E. 71 ; and the lands within the district 
 may be assessed to pay the entire cost, on 
 the theory that they alone are benefited; 
 Bradbury v. Drainage Dist, 236 111. 36, 86 
 N. E. 163, 19 L R. A. (N. S.) 991, 15 Ann. 
 Cas. 904. It is correct to say that a drain- 
 age district is a quasi-corporation, if the 
 act under which it is organized does not 
 make it a corporation in fact; but it is not 
 created for political purposes or for the ad- 
 ministration of civil government. It is not 
 liable for the unauthorized acts of its com- 
 missioners, but the district has the power 
 of eminent domain for the purposes of its 
 organization; Bradbury v. Drainage Dist, 
 236 111. 36, 86 N. E. 163, 19 L. R. A. (N. S.) 
 991, 15 Ann. Cas. 904. They have been class- 
 ed as municipal corporations ; Commissioners 
 of Havana Tp. Drainage Dist. No. 1 v. Kel- 
 sey, 120 111. 482, 11 N. E. 256. 
 
 Where, in the construction of a levee, an 
 upper owner was damaged by having the 
 water thrown back on his lands, and there 
 was no negligence on the part of the district 
 in the performance of the work, he could 
 not recover ; Bradbury v. Drainage Dist., 236 
 111. 36, 86 N. E. 163, 19 L. R. A. (N. S.) 991, 
 15 Ann. Cas. 904; Lamb v. Reclamation 
 Dist., 73 Cal. 125, 14 Pac. 625, 2 Am. St 
 Rep. 775 (where a lower owner was damag- 
 ed by overflow, caused by the necessary 
 work of a reclamation district). See Police 
 Power; Assessment; Rivers. 
 
 DRAM. A liquid containing alcohol ; some- 
 thing that can intoxicate. Lacy v. State, 32 
 Tex. 228. See Wright v. People, 101 111. 134. 
 
 DRAW. To drag (on a hurdle) to the 
 place of execution. Anciently no hurdle was 
 allowed, but the criminal was actually drag- 
 ged along the road to the place of execution. 
 A part of the ancient punishment of traitors 
 was to be thus drawn. 4 Bla. Com. 92, 377. 
 
 DRAWBACK. An allowance made by the 
 government to merchants on the re-exporta- 
 tion of certain imported goods liable to du- 
 ties, which in some cases consists of the 
 whole, in others of a part, of the duties 
 which had been paid upon the importation. 
 Goods can thus be sold in a foreign market 
 at their natural cost in the home market. 
 See U. S. R. S. tit 34, c. 9. 
 
 DRAWEE. A person to whom a bill of ex- 
 change is addressed, and who is requested 
 to pay the amount of money therein men- 
 tioned. See Bill of Exchange. 
 
 DRAWER. The party who makes a bill 
 of exchange. 
 
 DRAWING. Every person who applies 
 for a patent for an invention is required to 
 furnish a drawing or drawings illustrative 
 of that invention : provided from the na- 
 ture of the case the invention can be so il- 
 
 lustrated. Drawings are also required on 
 application for a patent for a design. See 
 Pateni. 
 
 DRAWLATCHES. Thieves ; robbers. 
 
 Cowell. • 
 
 DREDGE. Formerly applied to a net or 
 drag for taking oysters ; now a machine for 
 cleansing canals and rivers. To dredge is 
 to gather or take with a dredge, to remove 
 sand, mud, and filth from the beds of rivers, 
 harbors, and canals, with a dredging ma- 
 chine. 15 Can. L. T. 268. 
 
 DREIT DREIT. Droit droit. Double 
 right A union of the right of possession and 
 the right of property. 2 Bla. Com. 199. 
 
 DRENGAGE. A variety of feudal tenure 
 by serjeanty (q. v.), often occurring in the 
 northern counties of England, involving a 
 kind of general service. Vinogradoff, Engl. 
 Soc. in Eleventh Cent. 62. Little is known 
 of it ; 3 Holdsw. Hist. E. L. 132. 
 
 DRIFTWAY. A road or way over which 
 cattle are driven. 1 Taunt. 279 ; Selw. N. P. 
 1037 ; Woolr. Ways 1. The term is in use in 
 Rhode Island. 2 Hilliard, Abr. Prop. 33. 
 
 DRIP. The right of drip is an easement 
 by which the water which falls on one house 
 is allowed to fall upon the land of another. 
 
 Unless the owner has acquired the right by 
 grant or prescription, he has no right so to 
 construct his house as to let the water drip 
 over his neighbor's land ; 1 Kolle, Abr. 107. 
 See 3 Kent 436; Dig. 43. 23. 4. 6; 11 Ad. & 
 E. 40. 
 
 DRIVER. One employed in conducting a 
 coach, carriage, wagon, or other vehicle with 
 horses, mules, or other animals. 
 
 The law requires that a driver should pos- 
 sess reasonable skill and be of good habits; 
 if| therefore, he is not acquainted with the 
 road he undertakes to drive; 3 Bing. 314, 
 321 ; drives with reins so loose that he can- 
 not govern his horse; 2 Esp. 533; does not 
 give notice of any serious danger on the 
 road; 1 Campb. 67; takes the wrong side of 
 the road; 4 Esp. 273; incautiously comes in 
 collision with another carriage; 1 Stark. 
 423; 1 Campb. 167; or does not exercise a 
 sound and reasonable discretion in travelling 
 on the road to avoid dangers and difficulties, 
 and any accident happens by which any pas- 
 senger is injured, both the driver and his 
 employers will be responsible; Barnes v. 
 Hurd, 11 Mass. 57 ; 6 Te-rm 659 ; 1 East 106 ; 
 4 B. & Aid. 590; Maury v. Talmadge, 2 Mc- 
 Lean, 157, Fed. Cas. No. 9,315. 
 
 It has been held that the conductor of a 
 street railway is not a driver; Isaacs v. R. 
 Co., 47 N. Y. 122, 7 Am. Rep. 418; and one 
 who drove a wagon loaded with calves and 
 drawn by horses was held not to be "driving 
 or conducting" cattle; L. R. 1 Q. B. 259. 
 
 DR0F-LAND {Drift-land). A yearly pay-
 
 DROF-LAND 
 
 941 
 
 DROITS OF ADMIRALTY 
 
 ment made by some to their landlords for 
 driving their cattle through the manor to 
 fairs and markets. Cowell. 
 
 DROIT (Fr.). In French Law. Law. 
 The whole body of law, written and unwrit- 
 ten. 
 
 A right No law exists without a duty. 
 Toullier, n. 96; Pothier, Droit. 
 
 In English Law. Right <'<>. Litt 158. 
 
 a person was said t<> have droit droit, pin- 
 rimum juris, ami plurimum possession^, 
 when he had the freehold, the fee, ami the 
 property in him. Crabb, Hist. K. L. 406. 
 
 Unlit, Droit, Dirltto. — These terms are all 
 Closely connected with each Other and with 
 the English right. The French and Italian 
 words an- derivatives of the Latin directus 
 and rectus, these being cognate with recht 
 and right; 15 D. Q. B. 369. 
 
 DR0IT-CL0SE. The name of an ancient 
 writ directed to the lord of ai eienl demesne, 
 and which lies for those tenants in ancient 
 demesne who hold their lands and ten. 
 by charter in fee-simple, in fee-tail, for life, 
 or in dower. Fit/h. N. B. 26. 
 
 DROIT COUTUMIER. In French Law. 
 
 Common law. 
 
 DROIT D'ACCESSION. In French Law. 
 That property which is acquired by making 
 
 a new form out of the material of another. 
 The civil law rule is that if the thing can 
 be reduced to the former matter it belongs to 
 the owner of the matter, e. g. a statue made 
 of gold; hut if it cannot so he reduced it he- 
 longs to the person who made it, e. g. a 
 statue made of marble. This suhject is 
 treated of in the Code Civil dc Napoleon, art. 
 565, r>77: Merlin. Rupert. Accession; Malle- 
 ville's Discussion, art. 505. See Acckssion. 
 
 DROIT D'AUBAINE. A rule by which all 
 the property of a deceased foreigner, whether 
 movable or Immovable, wj cated to the 
 
 use of the state, to the exclusion of his heirs, 
 whether claiming ah intestato or under a will 
 of the deceased. Finally abolished in 1819. 
 Boyd's Wheat. Int. Laws § S2. 
 
 The word aubaine signifies hospes loci, peregriwu 
 advena, a stranger. It is derived, according to 
 some, from alibi, elsewhere, natus, born, from which 
 the word albinus is said to be formed. Others, as 
 Cujas, derive the word directly from advena, by 
 which word aubains or strangers are ■ '. 
 the capitulnries of Charlemagne. See Du Cange; 
 Tr6voux, Diet. 
 
 DROIT DE NAUFRAGE. In French Law. 
 
 The right of a seignieur, who owns i 
 shore, or the kinu r . when a vessel is wr 
 to take possession of the wi and to 
 
 kill the crew or sell them as slaves. 1 I Yale 
 L. Jour. 129. 
 
 DROIT NATUREL (Fr.). The law of na- 
 ture. See .IruiseuuDENCE. 
 
 DROITS OF ADMIRALTY. Rights < Maim- 
 ed by the government over the property of 
 an enemy. In England, it has been usual In 
 maritime wars for the government to seize 
 
 and condemn, as droits of admiralty, 
 property of an enemy found in her ports at 
 the breaking out of hostility 
 196; 13 V.-s. 71 ; 1 Edw. I '. 191. 
 
 The power to •■ right ha 
 
 i een delegated to, nor has H i 
 
 claimed by, tie- ' 
 
 Benedict Adm. | 33; Brown v. D. S., S 
 110, :: i.. Ed. 504. 
 
 The droits formerly attaching to 
 of Lord Bigh Admiral © 
 jetsam, ligan, treasure, d 
 all goods picked up at St 
 -eons and all su< hi . all ships and 
 
 of an ( oemy coming Into i qj 
 creek or road, all ships seized :■■' 
 vage, and a share of prizes. 2 Sol. 
 Anglo-Amer. Leg. Hist 318. 3 • Di 
 of the High Court, 1618 it I 
 15 L. Q. B, 359; Marsden, Admiralty, D 
 and Salvage. 
 
 for a case of the condemnation to the 
 Crown of goods taken from convicted p. 
 see 1 W. Rob. 423. 
 
 DROITS CIVILS. In French Law. 
 
 Private rights, the exercise of which Is Independ- 
 ent of the status (qwilitc) of citizen. Foreigners 
 enjoy them, and the extent of that enjoyment Is 
 determined by the principle of reciprocity. Con- 
 versely, foreigners, although not resident iu France, 
 may be sued on contracts made by them In France. 
 and (unless possessed of sufficient real property in 
 France) are obliged to give security; 12 C. B. 801; 
 Brown, Law Diet. 
 
 DROITURAL. What belongs of right ; re- 
 lating to righl : as, real actions are cither 
 droitural or possessory, — droitural when t lie 
 plaintiff seeks to recover the property. 
 Finch. Paw L'oT. See \\'i;ii or Uic.ht. 
 
 DRUGGIST. One who deals in medicinal 
 substances, e, animal, or mineral, uu- 
 
 compounded. State v. Holmes, 28 La. Ann. 
 765, _<•• Am. Rep. 110. 
 
 In America the term druggist is used synony- 
 mously with apothecary, althnuph, strictly speak- 
 ing, a d one who deals in medicinal sub- 
 stance; . . animal, or mineral, before being 
 compounded, while composition and combination 
 
 My the business of the apothecary. Tta 
 is here used In Its double sense, anil throughout this 
 article is to be n t or apod. 
 
 In England an apothecary was formerly a sub- 
 He was the 
 ordinary medical man, or family medical attendant, 
 in that country. 
 
 Druggists are BubJScI to the general rule 
 of law that persons who hold then 
 out t.. the world a a -'ill and 
 
 qualifl " a particular trade or pro- 
 
 • are bound to reasonable skill and 
 diligence in the performance of their duties, 
 law Implies an undertaking 
 on tii- part of apothecaries that they shall 
 use a reasonabl ad skill in 
 
 •he treatment of their customers; Chit 
 Contr. .v.-".; Qwynn v. Duffield, 66 la. : 
 X. \Y. 523, 55 Am. Hep. 286; Walton v. Booth, 
 :; t La. Ai a. 913; Beckwith v. Oatman, 43 
 Hun i V. V.i 265. This rule is probably 
 more strict here than in England; Webb's
 
 DRUGGIST 
 
 942 
 
 DRUGGIST 
 
 Poll. Torts 26, note. A druggist, whether 
 under a license or not, holds himself out as 
 competent for that "business, but not to pre- 
 scribe as a physician ; and for any lack of 
 capacity or for negligence, he is answerable 
 in damages to the person injured, the same 
 principles of law applying to him as to a 
 medical practitioner; Bish. Non-Contr. L. § 
 TIG. In dispensing poisons, he is required to 
 exercise the highest degree of care for the 
 safety of his customers; Sutton's Adm'r v. 
 Wood, 120 Ky. 23, 85 S. W. 201, 8 Ann. Cas. 
 S94. 
 
 Where a customer asked for a preparation 
 for a specified purpose (corrosive sublimate 
 for external application to kill lice) and the 
 druggist made the solution so strong (85 per 
 cent.) as to cause severe injury, he was held 
 liable, though it was labelled "Poison Car- 
 bolic Acid" ; it was the druggist's duty to 
 give proper instructions ; Goldberg v. Hege- 
 man & Co., 60 Misc. 107, 111 N. Y. Supp. 
 679. Where a solution was called for to 
 cleanse a wound, plaintiff had a right to as- 
 sume that that which was furnished would 
 be at least harmless, if not efficient, and 
 could be applied without further injury ; 
 Horst v. Walter, 53 Misc. 591, 103 N. Y. 
 Supp. 750. 
 
 A druggist is required to know the proper- 
 ties of the medicines he sells and to employ 
 capable assistants ; Smith v. Hays, 23 111. 
 App. 244; it is no defence that he used ordi- 
 nary care; Fleet v. Hollenkemp, 13 B. Mon. 
 (Ky.) 219, 56 Am. Dec 563; or that the 
 clerk who negligently put up the prescription 
 was a competent pharmacist; Burgess v. 
 Drug Co., 114 la. 275, 86 N. W. 307, 54 L. R. 
 A. 364, 89 Am. St. Rep. 359. The highest de- 
 gree of skill is not to he expected nor can 
 it reasonably be required of all ; Simonds v. 
 Henry, 39 Me. 156, 63 Am. Dec. 611. 
 
 Perhaps a higher degree of skill than is the 
 usual rule was required in Fleet v. Hollen- 
 kemp, 13 B. Monr. (Ky.) 219; where it was 
 held that any mistake made by the druggist, 
 if the result of ignorance or carelessness, 
 renders him liable to the injured party; 
 Thomas v. Winchester, 6 N. Y. 397, 57 Am. 
 Dec. 455. Where one, whether an apothecary 
 or not, negligently gave a customer poison 
 and the customer swallowed it and was in- 
 jured, he who negligently gave the poison 
 was guilty of a tort, and liable for the in- 
 jury to the customer unless the latter was 
 also guilty of negligence which contributed 
 to the injury; Gwynn v. Duffield, 61 la. 64, 
 15 N. W. 594, 47 Am. Rep. 802. If a druggist 
 negligently sells a deadly poison as a harm- 
 less medicine to A, who administers it to B 
 and B takes it as a medicine and dies in a 
 few hours by reason thereof, a right of ac- 
 tion against the druggist survives to B's ad- 
 ministrator ; Norton v. Sewall, 106. Mass. 
 143, 8 Am. Rep. 298. The sale of an article 
 in itself harmless, which becomes dangerous 
 only by being used in combination with some 
 
 other article, without any knowledge on the 
 part of the vendor that it was to be used in 
 such combination, does not render him liable 
 to an action by one who purchased the ar- 
 ticle from the original vendee and is injured 
 while using it in a dangerous combination, 
 although by mistake the article sold was dif- 
 ferent from that which was intended to be 
 sold; Davidson v. Nichols, 11 Allen (Mass.) 
 514. 
 
 A druggist who sells to cue person for the 
 use of another a hair wash made by himself 
 and represented not to he injurious, is liable 
 to the person for whom it was purchased 
 when used as directed, for injuries arising 
 from such use, the intended use by the third 
 person being known to the vendor ; L. R. 5 
 Ex. 1. The maker of a proprietary medicine 
 recommended for the cure of a certain dis- 
 ease, the bottle having on it directions for 
 use, who sells the medicine, so put up, to a 
 druggist, is liable to one who buys it from 
 the druggist and is injured by its use accord- 
 ing to the directions on the bottle ; Blood 
 Balm Co. v. Cooper, S3 Ga. 457, 10 S. E. 118, 
 5 L. R. A. 612, 20 Am. St. Rep. 324. 
 
 Where a druggist selling a poisonous med- 
 icine, fully and clearly warned the person 
 of its nature and gave him accurate direc- 
 tions as to the quantity which he could safe- 
 ly take, and the person was injured or killed 
 by taking an overdose in disregard of the di- 
 rections, the druggist is not liable for negli- 
 gence simply because he failed to put a label 
 marked "Poison" on the package as direct- 
 ed by statute. The customer disregarding 
 the warning and direction of the vendor was 
 guilty of negligence; Wohlfahrt v. Beckert, 
 92 N. Y. 490, 44 Am. Rep. 406. 
 
 An unlicensed druggist who conducts a 
 drug store cannot escape the penalty of the 
 law for the unlawful sale of intoxicating 
 liquors by showing that the sales were made 
 for medicinal purposes by his clerk, who was 
 a licensed pharmacist; State v. Norton, 67 
 la. 641, 25 N. W. 842. A druggist is not lia- 
 ble if he compounds carefully another's pre- 
 scription ; Ray v. Burbank, 61 Ga. 505, 34 
 Am. Rep. 103. But if he sell one medicine 
 for another and an injury result therefrom, 
 it is no defence for him to show that the case 
 was negligently treated; Brown v. Marshall, 
 47 Mich. 570, 11 N. W. 392, 41 Am. Rep. 728. 
 An apothecary, if guilty of criminal negli- 
 gence, and fatal results follow, may be con- 
 victed of manslaughter ; 1 Lew. Cr. Cas. 169. 
 See Physician. 
 
 DRUGS. Substances used in the composi- 
 tion of medicines or in dyeing and in chem- 
 ical operations. Webst. Diet. 
 
 "Drugs and Medicines," when used in in- 
 surance policies, include saltpetre ; Collins v. 
 Ins. Co., 79 N. C. 279, 28 Am. Rep. 322. It is 
 a question of fact wnether benzine is a drug; 
 Carrigan v. Ins. Co., 53 Vt 418, 38 Am. Rep. 
 687.
 
 DRUGS 
 
 948 
 
 DRUN 
 
 Whore a druggist w:is charged with sell- 
 ing peppermint lozenges on Sunday, it ap- 
 'I that the statute permitted the' sell- 
 ing of "drugs and medicines" on that day. 
 They were held prima fade within the stat- 
 ute; 33 r. C. Q. B. 543. So a mixture of 
 rosewater and prussic acid t<< be used as a 
 lotion is within the same terms; L. R. 4 Q. 
 B. 296. 
 
 For pure food and drug law, see Food and 
 Drugs. 
 
 DRUMMER. A travelling salesman. One 
 
 who solicits custom. Thomas v. City of Hot 
 Springs, 34 Ark. 553, 36 Am. Rep. .". i. "Com- 
 mercial agents who are travelling for whole- 
 sale merchants and supplying the retail 
 trade with goods, or rather, taking orders tor 
 goods to be shipped to the retail merchant." 
 Singleton v. Fritsch, 1 Lea (Tenn.) 93. See 
 Commercial Traveller; Com mi.,. 
 
 DRUNKENNESS. In Medical Jurispru- 
 dence. The condition of a man whose mind 
 is affected by the immediate use of Intoxicat- 
 ing drinks. 
 
 This condition presents various degrees of in- 
 .-, ranging from a simple exhilaration to a 
 state of utter unconsciousness and insensibility. In 
 the popular phrase, the term drunkenness is applied 
 only to those degrees of It in which the mind is 
 manifestly disturbed In Its operations. In the earli- 
 er stages it frequently happens that the mind is not 
 only not disturbed, but acts with extraordinary 
 clearness, promptitude, and vigor. In the latter the 
 thoughts obviously succeed one another without 
 much relevance or coherence, the perceptive facul- 
 ties are active, but the impressions are miscon- 
 ceived, as if they passed through a distorting me- 
 dium, and the reflective powers cease to act with 
 any degree of efficiency. Some of the intermediate 
 stages may be easily recognized ; but it is not al- 
 ways possible to fix upon the exact moment when 
 they succeed one another. In some persons pecul- 
 iarly constituted, a fit of intoxication presents few 
 if any of these successive stages, and the mind rap- 
 idly loses its self-control, and for the time is actu- 
 ally frenzied, as if in a maniacal paroxysm, though 
 the amount of the drink may be comparatively 
 small. The same phenomenon Is observed some- 
 times In persons who have had some injury of the 
 who are deprived of their reason by the 
 slightest Indulgence. 
 
 The habitual abuse of intoxicating drinks Is usu- 
 ally followed by a pathol. of the 
 brain, which is manifested by a degree of int. 11, ctu- 
 al obtuseness, and some insensibility to moral dis- 
 tinctions once readily discerned. The mind is more 
 exposed to the force of foreign influences, and more 
 readily induced to regard things in the light to 
 which others have directed them. In others it pro- 
 duces a permanent mental derangi ment, which, if 
 the person continue to Indul 
 by common observers for the immediate efl 
 hard drinking. Tin se two results— the mediate and 
 the immediate effects of drinking— may coexist; 
 but it is no less necessary to distinguish them from 
 each other, because their legal con n quencea may bo 
 very diffi n ot Moved by the latter, a person goes 
 into the street and abuses or assaults his neighbors; 
 moved by the former, the same per on m 
 will, and cuts oti with a shilling those who I 
 strongest claims upou his bounty. In a Judicial in- 
 vestigation, one class of witnesses will attribute all 
 his extravagances to drink, while another will see 
 nothing in them but the effect of insanity. The 
 medical jurist should not be misled by either parly, 
 but be able to refer each particular act to Its prop- 
 er source. 
 
 Drunkenness may be the result of dipsomania. 
 Rather suddenly, and perhaps without much prelim- 
 inary indulgence, a person manifests an insatiable 
 thirst fur strong drink, which no . .. ,us of 
 
 propriety or prudence can Induce him to control. 
 He generally place, and 
 
 there, during a period of a few days or 
 swallows enormou .-> of liquor, uniil his 
 
 stomach rcfu nlting suc- 
 
 ceeds, followed by sicki 
 
 for all Intoxicating drinks. often 
 
 periodical, the paroxysms recurring ai ; 
 rying from three I 
 
 times the Indulgence Is more continuous and limit- 
 ed, sufficient, however, to d> ■: -ilnd. with- 
 out producing sickness, and t 
 
 mia may result fron, :ch as 
 
 anxiety, 
 
 bility; or phj ome anom- 
 
 alous condition of the stomach. Esqulrol, Mai. 
 Men. ii. 7;i ; Marc, de la i ;. , Med. Jur. 
 
 •il/7 ; Macnlsh, Anatomy of Drunkenness, chap. 14. 
 
 The common law showed but little dispo- 
 sition to afford relief, either In civil or crim- 
 inal eases, from the Immed ts ol 
 drunkenness, it has never considered that 
 mere drunkenness alone as a sufficient rea- 
 son for Invalidating any act In Crane v. 
 Conklin, 1 N. J. Eq. 346, 22 Am, Dee 519, 
 it was said that the early cases held that 
 relief could not he granted against a con- 
 tract made by one who was Intoxicated, un- 
 less the intoxication was brought about by 
 the other party, but that that rule had been 
 changed; that courts will not interfere to 
 assi-t. a person on the ground of intoxication 
 merely, hut will, if any unfair advantage 
 h.is been taken of his situation. To the same 
 effect, Baird v. Howard, 51 Ohio St. 57, 36 
 X. K. 732, 22 L. EL A. 846, -hi Am. Si. 
 550, but such contracts have been held raid 
 where it appeared that actual intoxication 
 dethroned the reason or that the party's 
 understanding was so impaired as to r 
 him mentally unsound; IUirnham v. Barn- 
 ham, 11'.) Wis. 509, '.IT N. W. 17o. phi Am. St. 
 Rep. 895; Wright v. Fisher, 65 Mich. 275, 32 
 N. W. 605,8 Am. St. Rep. B86; that the drunk- 
 enness must have been such as to have 
 drowned reason, memory and Judgment and 
 to have impaired the mental facull 
 such an extent as to render the party QOn 
 Compos mentis for the time being; Martin 
 v. Harsh. 231 111. 384, 83 X. B. 164, 13 I.. R. 
 A. (X. S.) 1000; that at the time the party 
 did not fully understand the nature of the 
 transaction; 7 Idaho ^'.C: that the party 
 was Incapable of knowing or understanding 
 the nature or quality of the act; Benton v. 
 Bikyta, B4 122 \. W. 61, 24 L B 
 A. (X. S.i 1057; Utute <>f reason as 
 
 not to know the conse [uencee of in 
 tract; Fowler v. Water Co., 208 Pa. 17.:. .".7 
 Ati. 959; Incapable of knowing what l 
 
 ik v. Timber Co., 7s Axk, 17, '.'i 
 s. W. 695, 8 .Mm. Caa 251. 
 
 It has been held that there must he a de- 
 gree of drunkenness which may he cal 
 cessive. where a party is so far deprl 
 his reason as to rentier him Incapable of uu- 
 inding the consequences of his act; J.
 
 DRUNKENNESS 
 
 944 
 
 DRUNKENNESS 
 
 I. Case Threshing Mach. Co. v. Meyers, 78 j 
 Neb. 6S5, 111 N. W. 602, 9 L. R. A. (N. S.) 
 970; Conant v. Jackson, 16 Vt. 335; Johns 
 v. Fritchey, 39 Md. 258; Reynolds v. De- 
 chaums, 24 Tex. 174, 76 Am. Dec. 101 ; Tay- 
 lor v. Purcell, 60 Ark. 606, 31 S. W. 567 ; 
 Kuhlman v. Wieben, 129 la. 188, 105 N. W. 
 445, 2 L. R. A. (N. S.) 666; Drummond v. 
 Hopper, 4 Harr. (Del.) 327; Fowler v. Wa- 
 ter Co., 208 Pa. 473 ; or where it is of such 
 a degree as to make his mind similar to that 
 of an idiot or a lunatic ; Harbison v. Lemon, 
 3 Blackf. (Ind.) 51, 23 Am. Dee. 376; when 
 he is in such a condition as to be unable to 
 understand the nature of the transaction; 
 Ryan v. Schutt, 135 111. App. 554; or is de- 
 prived entirely of his reason; Bing v. Rank, 
 
 5 Ga. App. 578, 63 S. E. 652. It must be so 
 extreme that the party sought to be charged 
 was incapable of assenting ; Wade v. Colvert, 
 2 Mill, Const. (S. C.) 26, 12 Am. Dec. 652; 
 because the very essence of a contract is 
 the assent of the party; id.; Longhead v. 
 Commission Co., 64 Mo. App. 559. That one 
 may plead his intoxication in avoidance of 
 a contract is held in Johnson v. Harmon, 94 
 U. S. 371, 24 L. Ed. 271. 
 
 The leading English case is 13 M. & W. 
 623, which holds that there is a class of con- 
 tracts from which a party cannot be releas- 
 ed, even by proof of complete drunkenness 
 at the time they were entered into. This 
 class embraces transactions where the law 
 raises the assent essential to their execution, 
 such as actions for money had and received 
 to the plaintiff's use, or paid by him to the 
 defendant's use. So a tradesman who sup- 
 plies a drunken man with necessaries may 
 recover the price of them if the party keeps 
 them when he becomes sober, although a 
 count for goods bargained and sold would 
 fail. The contract may be ratified by him 
 when he becomes sober; L. R. 8 Exch. 132, 
 where it was said that the judges in 13 M. 
 
 6 W. 623, used the word void, but that they 
 did not mean absolutely void, but only that 
 a drunken man's contract could not be en- 
 forced against his will, not that it was in- 
 capable of ratification. To the same effect, 
 McClure v. Mausell, 4 Brewst. (Pa.) 119; 
 Birmingham Ry., Light & Power Co. v. Hin- 
 ton, 158 Ala. 470, 48 South. 546; Eaton's 
 Adm'r v. Perry, 29 Mo. 96; Brockway v. 
 Jewell, 52 Ohio St. 187, 39 N. E. 470 (hold- 
 ing that a drunken man may be bound on an 
 implied contract). 
 
 The contract of a drunken man is not void 
 but voidable only; 8 Am. Rep. 251, note. 
 See also 1 Ames, Cas. on Bills and Notes 
 558; Carpenter v. Rodgers, 61 Mich. 384, 28 
 N. W. 156, 1 Am. St. Rep. 595; see Rice v. 
 Peet, 15 Johns. (N. Y.) 503; Joest v. Wil- 
 liams, 42 Ind. 565, 13 Am. Rep. 377; Bates 
 v. Ball, 72 111. 108. The party must rescind 
 the contract within a reasonable time after 
 recovery ; Fowler v. Water Co., 208 Pa. 473, 
 
 57 Atl. 959; Shaw v. R. Co., 126 App. Div. 
 210, 110 N. Y. Supp. 362 ; Kelly v. R. Co., 154 
 Ala. . 573, 45 South. 906 ; Case Threshing 
 Mach. Co. v. Meyers, 78 Neb. 685, 111 N. W. 
 602, 9 L. R. A. (N. S.) 970. If a person 
 when sober agree to sign a contract, he can- 
 not avail himself of intoxication at the time 
 of signature as a defence; Strickland v. Par- 
 lin & Orendorf Co., 118 Ga. 213, 44 S. E. 997 ; 
 Fagan v. Wiley, 49 Or. 480, 90 Pac. 910. 
 When carried so far as to deprive the party 
 of all consciousness, a strong presumption 
 of fraud is raised ; and on that ground courts 
 may interfere ; 1 Ves. 19 ; 18 id. 12 ; Thackrah 
 v. Haas, 119 U. S. 499, 7 Sup. Ct. 311, 30 L. 
 Ed. 486; Jones v. McGruder, 87 Va. 360, 12 
 S. E. 792. In equity it is not so much the 
 drunkenness of one party as the fraud and 
 imposition of the other; Cook v. Bagnell 
 Timber Co., 78 Ark. 47, 94 S. W. 695, 8 Ann. 
 Cas. 251 ; Calloway v. Witherspoon, 40 N. C. 
 128. Drunkenness in such a degree as to 
 render the testator unconscious of what he 
 is about, or less capable of resisting the in- 
 fluence of others, avoids a will ; Shelf. Lun. 
 274, 304; Dimond's Estate, 3 Pa. D. R. 554; 
 but not if at the time the testator could com- 
 prehend the nature of his act; Bannister v. 
 Jackson, 45 N. J. Eq. 702, 17 Atl. 692. 
 
 In actions for torts, drunkenness is not 
 regarded as a reason for mitigating damag- 
 es; Co. Litt. 247 a; Webb, Poll. Torts 59, n. 
 See Hanvey v. State, 68 Ga. 612. Courts of 
 equity, too, have declined to interfere in fa- 
 vor of parties pleading intoxication in the 
 performance of some civil act ; but they have 
 not gone the length of enforcing agreements 
 against such parties; 1 Story, Eq. § 232; 
 Youn v. Lamont, 56 Minn. 216, 57 N. W. 
 478 ; 18 Ves. Jr. 12 ; 1 Ves. 19. "A drunk- 
 ard who is voluntarius daemon," says Coke, 
 "hath no privilege thereby: Whatever ill 
 or hurt he doth, his drunkenness doth ag- 
 gravate it." Lawyers have occasionally 
 shown a disposition to distinguish between 
 the guilt of one who commits an offence un- 
 consciously, though in consequence of vicious 
 indulgence, and that of another who is ac- 
 tuated by malice aforethought and acts de- 
 liberately and coolly. In Pennsylvania, as 
 early as 1794, it was remarked that, as 
 drunkenness clouds the understanding and 
 excites passion, it may be evidence of pas- 
 sion only, and of want of malice and design ; 
 Add. Pa. 257. See Meyers v. Com., 83 Pa. 
 
 144. In 1819, Justice Holroyd decided that 
 the fact of drunkenness might be taken into 
 consideration in determining the question 
 whether the act was premeditated or done 
 only with sudden heat and impulse ; Rex v. 
 Grundley, 1 Russ. Cr. 8. This particular de- 
 cision, however, was, a few years afterwards, 
 pronounced* to be not correct law ; 7 C. & P. 
 
 145. Again, it was held that drunkenness, 
 by rendering the party more excitable un- 
 der provocation, might be taken into consid-
 
 DRUNKENNESS 
 
 945 
 
 DRUNKENNESS 
 
 eration in determining the sufficiency of the 
 provocation; 7 C. & P. 817. In Rex v. Monk- 
 house, 4 Cox, Cr. Cas. 55, it was declared 
 that there might exist a state of drunken- 
 ness which takes away the power of form- 
 ing any specific intention. 
 
 In this country, courts have gone still 
 further in regarding drunkenness as Incom- 
 patible witli some of the elements of crime. 
 It has been held, whero murder was defined 
 to be wilful, delib< rate, malicious, and pre- 
 meditated killing, that the existence of these 
 attributes is not compatible with drunken- 
 ness; State v. Bullock. 13 Ala. 413; Swan v. 
 State, 4 Humphr. (Tenn. i 136; Halle v. 
 State, 11 Humphr. (Tenn.) 154; State v. 
 McCants, 1 Speers (S. C.) 381; and when a 
 man's Intoxication is so great as to render 
 him unable to form a wilful, deliberate, and 
 premeditated design to kill, or <>1 judging of 
 his acts and their legitimate consequences, 
 then it reduces what would otherwise be 
 murder in the first degree to murder in the 
 second degree ; People v. Harris, 29 Cal. GT8 ; 
 Com. v. Jones, 1 Leigh (Va.) 612; People v. 
 Robinson, 2 Park C. R. (N. Y.) 2.".."; Ayres 
 v. State (Tex.) 20 S. W. 390; Mooney v. 
 State, 33 Ala. 419; State v. Johnson, 41 
 Conn. 584; Rafferty v. People, GO 111. 118; 
 Jones v. Com., 75 Pa. 403. See Bernhardt 
 v. State, 82 Wis. 23, 51 N. W. 1009; State 
 v. Zorn, 22 Or. 591, 30 Pac. 317; People v. 
 Vincent, 95 Cal. 425, 30 Pac. 581. But where 
 one who intends to kill another becomes vol- 
 untarily intoxicated for the purpose of car- 
 rying out the intention, the intoxication will 
 have no effect upon the act ; Garner v. State, 
 28 Fla. 113, 9 South. 835, 29 Am. St. Rep. 
 232; Springfield v. State, 90 Ala. 81, 11 
 South. 250, 38 Am. St. Rep. 85. See People 
 v. Young, 102 Cal. 411; 36 Pac. 770; and if 
 one person gets another drunk and per- 
 suades him to commit a crime, he is legally 
 responsible ; McCook v. State, 91 Ga. 740, 17 
 S. E. 1019. 
 
 Intoxication does not excuse crime, but 
 may show an absence of malice; Wilkerson 
 v. Com., 88 Ky. 29, 9 S. W. 836, 10 Ky. L. 
 Rep. 656; Engelhanlt v. State, 88 Ala. 100, 
 7 South. 151; and the burden of proof is on 
 the defendant to shew intoxication to such 
 an extent as to render him incapable of mal- 
 ice; State v. Hill. 46 La. Ann. 27, 14 South. 
 294, 49 Am. St. Rep. 316. 
 
 If one commits robbery while so drunk as 
 not to know what lie was doing, he will not 
 be deemed to have taken the property with a 
 felonious intent; Keeton v. Com., 92 Ky. 522, 
 18 S. W. 359. 
 
 It has been already stated that strong 
 drink sometimes, in consequence of injury 
 to the head, or some peculiar constitutional 
 susceptibility, produces a paroxysm of fren- 
 zy immediately, under the influence of which 
 the person commits a criminal act. Cases of 
 this kind have been too seldom tried to make 
 it quite certain how they would be regarded 
 Bouv.— 60 
 
 in law. It is probable, however, that the 
 plea of insanity would be deprived of its va- 
 lidity by tin- fact that, sane or Insane, the 
 party was confessedly drunk. I 
 where injury of the bead had been foli 
 
 astonal parol osanlty, in one 
 
 of which the prisoner I I t ap- 
 
 peared that he had just 1 'i dri 
 
 that intoxicat Ion bad son i . _iit on 
 
 the paroxysms, though they w< 
 
 Led by drinking. The court ruled that 
 if the :p. ntal disturbance were pr 
 Intoxication it was Dot a valid del 
 accordingly the prisoner was convicted and 
 executed. Trial of M'Donough, Kay. 
 Jur. 514. The principle is that if a i 
 voluntarily deprives himself of reason, he 
 can claim no exemption from the ordinary 
 consequences of crime: :; Par. ft FonbL 
 J. 39; and the courts hold that voluntary in- 
 toxication is no Justification or excuse for 
 crime; State v. O'N'eil. 51 Kan. 651, •':"• Pi C 
 287, 24 L. K. A. 555; People v. Bell, ' 
 485; state v. Bullock, 13 Ala. ■!'. 
 State, 55 Ga. 31: State v. TatTO, 50 Vt 483; 
 Colbath v. State. 4 Tex. App. 7<;. Milder 
 views have been advocated by writers of 
 note, and have appeared in judicial de< i 
 sions. Alison, referring to the class of i 
 just mentioned, calls it inhuman to visit them 
 with the extreme punishment otherwise suit- 
 able. Prin. of Crim. Law of Scotland 654. 
 See, also. 2:1 Am. Jur. 290 When a defend- 
 ant sets up the defence of delirium tn 
 and there is evidence to support the plea, 
 the court in charging the jury is bound to 
 set forth the law applicable to such a de- 
 fence; 12 Rep. 701. This disease Is a species 
 of insanity, and one who labors under it is 
 not responsible for ids acts: l \\'h. & stille. 
 Med. Jur. § 2<>2. While drunkenness is no 
 excuse for crime, mania a potu is: state v. 
 1'otts. 100 N. C. 457, 6 s. B. 657. See People 
 
 v. Williams. 4.". Cal. 311; Fisher v. St: 
 
 Ind. 4."..~> : Lanergan v. People, " ,l Barb. (N. 
 Y.i 266. Where dipsomania affects the in- 
 tellect and ii"t merely the will, it may be a 
 defence; :'• Witth. & Keek. Med. .Tor- 
 See Planigan v. People, 86 N. V. 559, i 
 Rep. 550; Feople v. I.eary. 105 OaL 486, 39 
 Pac. 24. Where a person, in regard to a 
 particular act, though knowing right from 
 wrong, has lost his power to discriminate, 
 in consequence of mental disease, be will be 
 exempt from crime: 3 Witth. & Keek. .".07. 
 See State v. McDanlel, 115 N 20 8 
 
 B. 622. Dipsomania would hardly be con- 
 sidered, in the present state of Judicial opin- 
 ion, a valid defence in a capital ease, though 
 there have been decisions which have allow- 
 ed it. holding the Question whether there is 
 such a disease, and whether the act was 
 committed under its Influence, to he ques- 
 tions of fact for the jury; State v. Kike. 49 
 X. II. 399, »'■ Am. Rep. 533; state v. Johnson, 
 tO Conn. 136; 1 Bish. Cr. Law « 409. 
 The law does recognize two kinds of in
 
 DRUNKENNESS 
 
 946 
 
 DUE 
 
 culpable drunkenness, viz.: that which is 
 produced by the "unskilfulness of the physi- 
 cian," and that which is produced by the 
 "contrivance of enemies." Russ. Cv. 8. To 
 these there may perhaps also be added that 
 above described, where the party drinks no 
 more liquor than he has habitually used 
 without being intoxicated, but which exerts 
 an unusually potent effect on the brain, in 
 consequence of certain pathological condi- 
 tions. See Com. v. Whitney, 5 Gray (Mass.) 
 86; 1 Benn. & H. Lead. Cr. Cas. 113. See 
 Insanity ; Delirium Tremens. 
 
 DRY EXCHANGE. A term invented for 
 disguising and covering usury,— in which 
 something was pretended to pass on both 
 sides, when in truth nothing passed on one 
 side ; whence it was called dry. Stat 3 Hen. 
 VII. c. 5 ; Wolffius, Ins. Nat. § 657. 
 
 DRY RENT. Rent-seek; a rent reserved 
 without a clause of distress. 
 
 DRY TRUST. A passive trust; one which 
 requires no action on the part of the trustee 
 beyond turning over the money or property 
 to the cestui que trust. Black, L. Diet. See 
 Trust. 
 
 DUBITANTE. Doubting. Affixed in law 
 reports to a judge's name, to signify that he 
 doubts the correctness of a decision. 
 
 DUCAT. The name of a foreign coin. 
 
 The ducat, or sequin, was originally a gold coin of 
 the middle ages, apparently a descendant from the 
 bezant of the Greek-Roman Empire. For many 
 centuries it constituted the principal international 
 currency, being intended, or supposed, to be made 
 of pure gold, though subsequently settled at a basis 
 a little below. It is now nearly obsolete in every 
 part of the world. Its average value is about $2.26 
 of our money. It is said they appeared earliest in 
 Venice, and that they bore the following motto: 
 Sit tibi, Christe, datus, quern tu regis, iste Ducatus 
 (Let this Duchy which thou rulest be dedicated to 
 thee, O Christ)— whence the name ducat. 
 
 The silver ducat was formerly a coin* of Naples, 
 weighing three hundred and forty-eight grains, 
 eight hundred and forty-two thousandths fine ; con- 
 sequent value, in our money, about eighty-one 
 cents ; but it now exists only as a money of account. 
 
 DUCES TECUM LICET LANGUIDUS. A 
 
 writ directing the sheriff to bring a person 
 whom he returned as so sick that he could 
 not be brought without endangering his life. 
 Cowell. Now obsolete. 
 
 DUCKING-STOOL. A stool or chair in 
 which common scolds were formerly tied 
 and plunged into water. The ducking-stool 
 is mentioned in the Domesday Book ; it was 
 extensively in use throughout Great Britain 
 from the fifteenth till the beginning of the 
 eighteenth century. Cent. Diet. The last 
 recorded instance in England was in 1809. 
 See Castigatory; Punishment. 
 
 DUE. Just and proper, as due care, due 
 rights. Ryerson v. Boorman, 8 N. J. Eq. 701 ; 
 Jones v. Inhabitants of Andover, 10 Allen 
 (Mass.) 18; Butterfield v. Western R. Corp-, 
 10 Allen (Mass.) 532, 87 Am. Dec. 678. A 
 
 due presentment and demand of payment 
 must be made. See Bank of Pennsylvania v. 
 McCalmont, 4 Rawle (Pa.) 307; Collins's 
 Adm'x v. Janey, 3 Leigh (Va.) 3S9; Simms 
 v. Slacum, 3 Cra. (U. S.) 300, 2 L. Ed. 446. 
 
 What ought to be paid; what may be de- 
 manded. 
 
 It differs from owing In this, that sometimes what 
 is owing is not due: a note payable thirty days 
 after date is owing immediately after it is delivered 
 to the payee, but it is not due until the thirty days 
 have elapsed. But see Allen v. Patterson, 7 N. Y. 
 476, 57 Am. Dec. 542 ; Scudder v. Scudder, 10 N. J. 
 L. 340 ; U. S. v. Bank of North Carolina, 6 Pet. (U. 
 S.) 36, 8 L. Ed. 308. 
 
 The word "due," unlike "arrears," has 
 more than one signification, and expresses 
 two distinct ideas. At times it signifies a 
 simple indebtedness without reference to 
 the time of payment ; at others it shows that 
 the day of payment has passed; W T iggin v. 
 Knights of Pythias, 31 Fed. 125; Scudder v. 
 Scudder, 10 N. J. L. 345. 
 
 DUE-BILL. An acknowledgment of a 
 dent in writing. This instrument differs 
 from a promissory note in many particulars : 
 it is not payable to order, nor is it assigna- 
 ble by mere indorsement. Byles, Bills *11, 
 n. (t). See I. O. U. ; Promissory Notes. 
 
 DUE CARE. Reasonable care adapted to 
 the circumstances of the case. Butterfield v. 
 Western R. Corp., 10 Allen (Mass.) 532 ; Bal- 
 timore & P. R. Co. v. State, 54 Md. 656. See 
 Bailment; Negligence. 
 
 DUE COURSE OF 'LAW. This phrase is 
 synonymous with "due process of law," or 
 "the law of the land," and means law in its 
 regular course of administration through 
 courts of justice. Kansas Pac. Ry. Co. v. 
 Dunmeyer, 19 Kan. 542. But see Due Pro- 
 cess of Law. 
 
 DUE PROCESS OF LAW. Law in its reg- 
 ular course of administration through courts 
 of justice. 3 Story, Const. 264, 661; Miller, 
 Const. 664; Wynehamer v. People, 13 N. Y. 
 378. 
 
 This definition embodies the earlier con- 
 ception ; 2 Co. Inst. 51; but it was long ago 
 held too narrow; Murray's Lessee v. Hobo- 
 ken Land & Improvement Company, 18 How. 
 (U. S.) 272, 15 L. Ed. 372, where a distress 
 warrant to collect a balance due from a col- 
 lector of customs, under executive author- 
 ity, prescribed by law, was held due process 
 within the Vth Amendment; and the same 
 ruling is made under the XlVth Amendment ; 
 Ballard v. Hunter, 204 U. S. 241, 27 Sup. Ct. 
 261, 51 L. Ed. 461, where it was said that 
 the phrase, "has never been defined. It does 
 not always mean proceedings in court. Its 
 fundamental requirement is an opportunity 
 for a hearing and defense, but no fixed pro- 
 cedure is demanded," and the ruling in Da- 
 vidson v. New Orleans, 96 U. S. 97, 24 L. Ed. 
 616 (infra) is approved. 
 
 Any legal proceeding enforced by public
 
 DUE PROCESS OP LAW 
 
 947 
 
 DUE ] UF LAW 
 
 authority, whether sanctioned by age or cus- 
 tom, or newly devised in the discretion of the 
 legislative power, in furtherance of the gen- 
 eral public good, which regards and pre- 
 serves those principles of liberty and Jus- 
 tice. Hurtado v. California, 110 U. S. 51G, 
 4 Sup. Ct. Ill, L'!>L'. 28 L. Ed. 232. 
 
 This term is considered oy Coke as equiv- 
 alent to the phrase "law of the land 
 in Magna ('aria, c. 29), and is said by him 
 to denote "indictment or presentment ><■ 
 and lawful men." Co. 2d Inst. 50. Amend- 
 ment V. of the Constitution of the United 
 States provides: "No person shall . . . 
 be deprived of life, liberty, or property, with- 
 out due process of law." Amendment XIV. 
 prohibits u state from depriving a person of 
 life, liberty, or property, without due process 
 of law. A similar provision exists in all 
 the state constitutions; the phrases "due 
 course of law" and "the law of tin; land" are 
 sometimes used; but all three of these phras- 
 es have the same meaning; and that implies 
 conformity with the ancient and customary 
 laws of the English people or laws indi- 
 cated by parliament; Davidson v. New Or- 
 leans, 96 U. S. 07, 24 L. Ed. 616; Cooley, 
 Const Lim. 4.'J7, where the provisions in the 
 various state constitutions are set forth. 
 Miller, J., says, in that case that a general 
 definition of the phrases which would cover 
 every case would be most desirable, but that, 
 apart from the risk of failure to make the 
 definition perspicuous and comprehensive, 
 there is a wisdom in ascertaining the extent 
 and application of the phrase by the judi- 
 cial process of exclusion and inclusion as the 
 cases arise. In that case, however, he says 
 also, that it must be confessed that the con- 
 stitutional meaning or value of the phrase 
 remains without that satisfactory precision 
 of definition which judicial decisions have 
 given to nearly all the other guaranties of 
 personal rights found in the constitutions 
 of the several states and of the United 
 States. And in a much later case it was 
 said that the phrase has never been precisely 
 defined; while its fundamental requirement 
 is opportunity for hearing and defense, the 
 procedure may be adapted to the case Pro- 
 ceedings in court are not always essential; 
 Ballard v. Hunter. 204 U. S. 241, -7 Sup. Ct. 
 261, 51 L. Ed. 461, where it was held that 
 personal service of liens for taxes and as- 
 sessments on real estate on resident owners, 
 and constructive service by publication on 
 non-resident owners, may be required by 
 statute, the land being accountable to the 
 state and the owner (barged with knowledge 
 of laws affecting it. 
 
 The liberty guaranteed is that of natural 
 and not of artificial persons; Western Turf 
 Ass'n v. Greenberg, 204 U. 8. 359, 27 Sup. ct. 
 3S4, 51 L. Ed. 520; where it was said "a cor- 
 poration cannot be deemed a citizen within 
 the meaning of the clause of the Constitu- 
 
 tion of the United states wh: ta the 
 
 privileges and Immunities of citizens of the 
 United Stat r im- 
 
 paired by the l.i prin- 
 
 ciple was laid down in Nat. 
 
 I.ifo I:. I 
 
 Ct. 126, 51 I.. Ed. 168, 7 '. :. 
 
 1'enibi: B I Mill. & Mill. I 
 
 Pennsylvania, 125 I 
 
 31 L. Ed. 650. 1 >ut coi ; i 
 
 as well as with i 
 
 that of equal protection of the La 
 
 lugton & L. Turnpike Road Co. v. 
 
 164 l'. S. 578, 17 Sup. Ct 198, Hi. 
 
 Smyth v. Ames, 169 U. S. 466, 1 
 
 H8, 12 L Ed. 819; I 
 
 Co. v. Minnesota, 134 U. S. 418, 10 Sup. Ct. 
 
 462, 702, 33 L. Ed. 970. 
 
 The full significance of the clause "law of 
 the land" is said by Iiuilin, C. J., to be that 
 statutes. which would deprive a citizen of the 
 rights of person or property without a reg- 
 ular trial according to the course and 
 of the common law would not he the law of 
 the land; Hoke v. Henderson, 15 N. C. 15, 25 
 Am. Dec. 677. Mr. Webster's explanation of 
 the meaning of these phrases in the Dart- 
 mouth College Case, 4 Wheat (U. S.) • 
 L. Ed. <'•-'•». is: "By the law of the land i> 
 more clearly intended the general law, a law 
 which hears before it condemns; which pro- 
 ceeds upon Inquiry, ami renders judgment 
 only after trial. The meaning is that every 
 Citizen shall hold his life, liberty, property, 
 and immunities, under the protection of the 
 general rules which govern society. Every- 
 thing which may pass under the form of an 
 enactment is not, therefore, to he considered 
 the law of the land." 
 
 General Principles. The adoption of the 
 xivth Amendment completed the circle ol 
 protection against violations of the provision 
 of Magna Carta, which guaranteed to the 
 citizen his life, liberty and property against 
 Interference except by the "law of the land," 
 Which phrase was coupled in the Petition of 
 Bight with due process of law. The latter 
 phrase was then used for the first time, but 
 the two are generally treated as meaning the 
 same. This security is provided as au'ainst 
 Hie United States by the XlVth ami Vth 
 Amendments and as against the Btat 
 the XlVth Amendment: Davidson v. 
 Orleans. 96 U. S. '.'7. 101, -1 L. Dd 
 which declined to attempt its precise def- 
 inition; Freeland v. Williams, i:.i I . B 
 11-, B Su] . I t 768, :::; L Ed. L93; tl 
 preme court has frequently declared u 
 
 era! terms its appreciation of the value 
 of this constitutional guaranty; Bank of 
 Columbia v. Okely, -i wheat. (TJ. S.) 235, 
 •jii. 1 I.. Ed. 559; lick Wo v. Hopkins, 118 
 U. s. 370, <; Sup. ct. H"; i. 30 I.. Ed. 220; 
 Holden v. Hardy, 169 I*. S. 366, 389, 18 Sup. 
 ct. 383, 42 I.. Ed. 780. 'the meaning of the 
 phrase is discussed generally in Kennard v.
 
 DUE PROCESS OF LAW 
 
 948 
 
 DUE PROCESS OF LAW 
 
 Louisiana, 92 U. S. 480, 23 L. Ed. 478; Da- 
 vidson v. New Orleans, 96 U. S. 97, 24 L. 
 Ed. 616; Ex parte Wall, 107 U. S. 265, 2 Sup. 
 Ct. 569, 27 L. Ed. 552; Hagar v. Reclama- 
 tion District No. 10S, 111 U. S. 701, 4 Sup. 
 Ct. 663, 28 L. Ed. 569 ; Missouri Pac. Ry. Co. 
 v. Humes, 115 U. S. 512, 6 Sup. Ct. 110, 29 
 L. Ed. 463; Freeland v. Williams, 131 U. S. 
 405, 9 Sup. Ct. 763, 33 L. Ed. 193 ; Hallinger 
 v. Davis, 146 U. S. 314, 13 Sup. Ct. 105, 36 
 L. Ed. 9S6. It does not refer to any gen- 
 eral system of law, but must be construed 
 witb reference to tbe bistorical developments 
 of the law in each state; Walker v. Sau- 
 vinet, 92 U. S. 90, 23 L. Ed. 678; Kennard 
 v. Louisiana, 92 U. S. 4S0, 23 L. Ed. 478 ; and 
 it means according to the system of law in 
 each state and not any general one ; Walker 
 v. Sauvinet, 92 U. S. 90, 93, 23 L. Ed. 678; 
 Kennard v. Louisiana, 92 U. S. 4S0, 23 L. 
 Ed. 47S; Missouri v. Lewis, 101 U. S. 22, 
 25 L. Ed. 9S9; Hurtado v. California, 110 
 U. S. 516, 4 Sup. Ct. Ill, 292, 28 L. Ed. 
 232 ; In re Converse, 137 U. S. 624, 11 Sup. 
 Ct. 191, 34 L. Ed. 796; Leeper v. Texas, 
 139 U. S. 462, 11 Sup. Ct. 577, 35 L. Ed. 225 ; 
 McNulty v. California, 149 U. S. 645, 13 Sup. 
 Ct. 959, 37 L. Ed. 882; but see Wynehamer 
 v. People, 13 N. Y. 378. 
 
 The prohibition applies to all instrumen- 
 talities of a state ; Chicago, B. & Q. R. Co. v. 
 Chicago, 166 U. S. 226, 17 Sup. Ct. 581, 41 
 L. Ed. 979 ; it is sufficient if the legislation is 
 general, in its operation and enforceable by 
 usual methods adapted to the case ; Dent v. 
 West Virginia, 129 U. S. 114, 9 Sup. Ct. 231, 
 32 L. Ed. 623. What is due process of law 
 in a particular state is regulated by the law 
 of the state; Walker v. Sauvinet, 92 U. S. 
 90, 23 L. Ed. 678; although a state cannot 
 make due process of law of anything which 
 it chooses to declare such by its own legis- 
 lation ; Davidson v. New Orleans, 96 U. S. 
 97, 24 L. Ed. 616. 
 
 Due process of law means such acts of 
 government as settled maxims of law and 
 custom sanction and permit ; Ex parte Ah 
 Fook, 49 Cal. 402; in the regular course of 
 administration according to the prescribed 
 forms ; Rowan v. State, 30 Wis. 129, 11 Am. 
 Rep. 559 ; according to the law of the land ; 
 Walker v. Sauvinet, 92 U. S. 93, 23 L. Ed. 
 678 ; Kennard v. Louisiana, 92 U. S. 4S0, 23 
 L. Ed. 478 ; and with respect to taxation, as 
 to which the question is so frequently rais- 
 ed, it has been said that the assessment of 
 taxes is necessarily summary and need not 
 be by judicial proceeding ; so a levy by a 
 collector under a state law is valid ; Da- 
 vidson v. New Orleans, 96 U. S. 97, 24 L. Ed. 
 616 ; Sears v. Cottrell, 5 Mich. 251, where the 
 subject is fully treated ; and taxation for 
 railroad aid bonds; Talcott v. Pine Grove, 1 
 Flipp. 120, Fed. Cas. No. 13,735; the clause 
 has reference to the modes of ascertaining 
 
 rights, not to the objects and purposes of a 
 statute ; id. 
 
 Legislation is not open to the charge of 
 depriving one of his rights without due pro- 
 cess of law, if it be general in its operation 
 upon the subject to which it relates and is 
 enforceable by usual methods adapted to 
 the nature of the 'case; Dent v. West Vir- 
 ginia, 129 U. S. 114, 9 Sup. Ct. 231, 32 L. 
 Ed. 623. As was said by Field, J., in Bar- 
 temeyer v. Iowa, 18 Wall. (U. S.) 129, 21 L. 
 Ed. 929: "No one has ever pretended, that 
 I am aware of, that the XlVth Amendment 
 interferes in any respect with the police 
 power of the state." In that case it was 
 held that the right to sell liquor, as far as 
 it exists, is not a right growing out of citi- 
 zenship of the United States. 
 
 The Distinction Betiveen the Two Amend- 
 in aits. While the language of the Vth and 
 XlVth Amendments is the same, yet as they 
 were engrafted upon the Constitution at dif- 
 ferent times and under widely different cir- 
 cumstances, it may be that questions may 
 arise in which different constructions and ap- 
 plications of their provisions may be proper; 
 French v. Pav. Co., 181 U. S. 324, 328, 21 
 Sup. Ct 625, 45 L. Ed. 879; citing Slaugh- 
 ter-House Cases, 16 Wall. (U. S.) 36, 21 L. 
 Ed. 394 ; then quoting from Davidson v. New 
 Orleans, 96 U. S. 97, 24 L. Ed. 616 as fol- 
 lows: "It is not a little remarkable that 
 while this provision has been in the Con- 
 stitution of the United States, as a restraint 
 upon the authority of the federal government 
 for nearly a century, and while during all 
 that time, the manner in which the powers 
 of that government have been exercised has 
 been watched with jealousy, and subjected 
 to the most rigid criticism in all its branch- 
 es, this special limitation upon its powers 
 has rarely been invoked in the judicial forum 
 or the more enlarged theatre of public 
 discussion. But while it has been a part of 
 the Constitution, as a restraint upon the 
 power of the states, only a very few years, 
 the docket of this court is crowded with 
 cases in which we are asked to hold that 
 state courts and state legislatures have de- 
 prived their own citizens of life, liberty or 
 property without due process of law. There 
 is here abundant evidence that there exists 
 some strange misconception of the scope of 
 this provision as found in the XlVth Amend- 
 ment." The court then stated that it would 
 "proceed in the present case on the assump- 
 tion that the legal import of the phrase due 
 process of law is the same in both amend- 
 ments." See Lent v. Tillson, 140 U. S. 316, 
 11 Sup. Ct. 825, 35 L. Ed. 419; Palmer v. 
 McMahon, 133 U. S. 660, 10 Sup. Ct. 324, 33 
 L. Ed. 772; Pittsburgh, C, C. & St. L. Ry. 
 Co. v. Backus, 154 U. S. 421, 14 Sup. Ct. 
 1114, 38 L. Ed. 1031. 
 
 It was not intended by the XlVth Amend- 
 ment to impose on the states, when exercis-
 
 DUE PROCESS OF LAW 
 
 949 
 
 DUE PROCESS OF LAW 
 
 ing their power of taxation, any more rigid 
 or stricter curb than that imposed on the 
 federal government, in the exercise of a 
 similar power by the Vth Amendment 
 French v. Paving Co., 181 U. S. 824, 329, 21 
 Sup. Ct. 625, 45 L. Ed. ST9. And in another 
 case the court said: "it by no means follows 
 that a long and consistent construction put 
 upon the Vth Amendment relating to public 
 improvements within the District of Colum- 
 bia is to be deemed overruled by a decision 
 concerning the operation of the XI Vth 
 Amendment as controlling state legislation." 
 Wight v. Davidson, 181 U. S. 371, 384, 21 
 Sup. Ct. 61G, 45 L. Ed. 900. 
 
 The privileges and Immunities of citizens 
 of the United states, protected by the xiVth 
 Amendment, are those arising out of the na- i 
 ture and essential character of the !">■■ 
 government, and granted or secured by the 
 constitution; and due process of law and the 
 equal protection of the laws are secured if 
 the laws operate on all alike, and do not sub- 
 ject the individual to an arbitrary e 
 of the powers of government; Duncan v. 
 Missouri, 152 U. S. 382, 14 Sup. Ct. 570, 38 L. 
 Ed. 4S5; Hurtado v. California, 110 U. S. 
 535, 4 Sup. Ct 111, 292, 28 L. Ed. 232; due 
 process of law in the XiVth Amendment re- 
 fers to that law of the land in each slate 
 which derives its authority from the inher- 
 ent and reserved powers of the state ex- 
 erted within the limits of those fundamental 
 principles of liberty" and justice which lie at 
 the basis of all our civil and political insti- 
 tutions; In re Kemmler, 130 U. S. 436, 10 
 Sup. Ct 930, 34 L. Ed. 519. It impli 
 formity with the natural and inherent prin- 
 ciples of justice and forbids the taking of 
 one's property without compensation, and 
 requires that no one shall be condemned in 
 person or property without opportunity to 
 be heard; lloldcu v. Hardy, 109 U. S. :;<;r,. Is 
 Sup. Ct. 3S3, 42 L. Ed. 780; the proceedings 
 need not be in a court of justice, but accord- 
 ing to the forms thereof; Davidson v. New 
 Orleans, 96 U. S. 97, 24 L. Ed. 016. The 
 proceedings must lie appropriate to the case 
 and just to the parties affected, and pursued 
 in the ordinary manner and adapted to the 
 end to be attained, with opportunity to be 
 heard, when necessary, for the just protec- 
 tion of rights; Turpin v. Lemon, 1S7 U. S. 
 51, S) Sup. ct. 20, 17 L. Ed. 70. See edito- 
 rial notes on What is Due Process "1 Law 
 in ui I.. Ed, 436; i.: I.. Ed. h).">. Appropriate 
 regulation of property is not deprivation of 
 due process of law; Richmond, i". & P. R. 
 Co. v. Richmond, 96 U. s. 521, 24 I.. Ed. 734. 
 In Bank of Columbia v. Okely, 4 Wheat. 
 (U. S.) 235, 4 L. Ed. 559, Johnson, J., says: 
 "As to the words from Magna Carta Incor- 
 porated in the constitution of Maryland, aft- 
 er volumes spoken and written with a view 
 to their exposition, the good sense of man- 
 kind has at length settled down to this, — 
 
 that they were Intended to secure the in- 
 dividual from the arbitrary e C the 
 powers of government unrestrained by the 
 established principles of private i 
 distributive Jus 
 
 "Due process of law ondoul ted 
 in the due course of legal pi 
 cording to those rule us which have 
 
 i ("ii established for the protection of pri- 
 vate rights;" Westervelt v. Gregg, li.' X. V. 
 209, <;_ Am. Dec, 160; but not i 
 judicial proceedings; it may Include sum- 
 mary proceedings, if not arbitrary or un- 
 equal, as fur collection of taxes; McMillen 
 v. Anderson, 95 D. S. ::7, li 1 L. Ed. :.■■•".; nor 
 is the right of appeal essential; whe 
 statute has fixed the time and place of 
 Ing of any board or tribunal, no special no- 
 tice to parties Interested is requii 
 v. Michigan, 188 r. 8. 505, 23 Sup. ct. 390. 
 17 L. Ed. 563. 
 
 Law in its regular course of administration 
 through courts of justice is due process; and 
 when secured by the law of the state, the 
 constitutional requirement Is satisfied; Leep- 
 er v. Texas, L39 O. B. 462, 11 Sup. »' t . :,;:. 
 35 L. Ed 225. The phrase as used in the 
 constitution does not '"mean a statute | 
 for the purpose of working the wrong. That 
 construction would render the restriction ab- 
 solutely nugatory, and turn tins part of the 
 constitution into mere nonsense. The people 
 would be made to say to the two houses: 
 'You shall be vested with the legislative pow- 
 er of the state, but no one shall be disfran- 
 chised or deprived of any of the rights or 
 privileges of a citizen, unless you pass a stat- 
 ute for that purpose. In other words, you 
 shall not do the wrong unless yon ch 
 do it;'" per Bronson, J., in Taylor v. Porter, 
 4 Hill (X. Y.) 140, 40 Am. Dec. 274. "The 
 meaning of these words is that no man shall 
 be deprived of his property without being 
 beard in his own defence." Kinney v. B 
 ly, 2 Ucn. & M. < Va.) 318, 336. 
 
 Cooley (Const I .i in. lilt Bays: "Due pro 
 cess of law in each particular case means, 
 such an exercise of the powers of the l'"V- 
 eminent as the settled maxims of law per- 
 mit and sanction, and tinder Buch safeguards 
 for the protection of individual ri_-hts as 
 those maxims prescribe tor the class of 
 to which the one in question belo 
 
 Taking property under the taxing power 
 is taking it by due process of law; Bigh v. 
 Shoemaker, •_'•_' <"ai. ::';:'.: Springer v. 1. s.. 
 pc i . s. 586, 26 I.. I'd. 253. in this connec- 
 tion, ltlS said in State v. Allen. 2 McCord <S. 
 0.) :.'■.: "We think that any legal pi 
 which was originally founded in nece 
 has been consecrated by time, and ap] 
 and acquiesced in by universal consent, 
 . . . is embraced in the alternative 'law 
 of the land.'" In Brown \. Levee Com'rs, 50 
 
 Miss. 479, it is said that thest n-tituf ioiial 
 
 provisions do not mean the general body of
 
 DUE PROCESS OF LAW 
 
 950 
 
 DUE PROCESS OF LAW 
 
 the law as it was at the time the constitution 
 took effect; but they refer to certain funda- 
 mental rights which that system of juris- 
 prudence of which ours is derivative has al- 
 ways recognized ; if any of these are disre- 
 garded in the proceedings by which a person 
 is condemned to the loss of property, etc., 
 then the deprivation has not been by due pro- 
 cess of law. And it has been held that the 
 state cannot deprive a person of his prop- 
 erty without due process of law through the 
 medium of a constitutional convention any 
 more than it can through an act of the leg- 
 islature ; Clark v. Mitchell, 69 Mo. G27. Ex- 
 action of tolls under a state statute for the 
 use of an improved waterway, is not a dep- 
 rivation of property within the federal con- 
 stitution ; Sands v. Irnprov. Co., 123 U. S. 
 288, 8 Sup. Ct. 113, 31 L. Ed. 149. 
 
 It follows necessarily, from the confessed 
 inability of the courts to form a general def- 
 inition and their settled rule of dealing with 
 each case separately upon its own facts, that 
 in a discussion of the subject it is conven- 
 ient to illustrate the course of decisions by 
 a selection of them showing different phases 
 of the application of the principle. 
 
 Limitations on the Legislation of the States. 
 Acts of a municipal corporation are not 
 wanting in due process of law if such acts, 
 when done or ratified by the state, would not 
 •be inconsistent with the Amendment, the 
 latter being not intended to bring under fed- 
 eral control everything done by states ille- 
 gally under state laws, but only the acts of 
 states or their instrumentalities in violations 
 of rights secured by the Constitution of the 
 United States; Owensboro Waterworks Co. 
 v. Owensboro, 200 U. S. 38, 26 Sup. Ct. 249, 
 50 L. Ed. 361 ; it does not control mere 
 forms of procedure in state courts or regu- 
 late their practice. It only requires that the 
 person condemned has had sufficient notice 
 and an adequate opportunity to defend ; Lou- 
 isville & N. R. Co. v. Schmidt, 177 U. S. 230, 
 20 Sup. Ct. 620, 44 L. Ed. 747. The guaranty 
 is secured within the meaning of the Amend- 
 ment if the law operates on all alike and 
 does not subject the individual to an arbi- 
 trary exercise of the powers of government ; 
 Leeper v. Texas, 139 U. S. 462, 11 Sup. Ct. 
 577, 35 L. Ed. 225; it requires only that a 
 person accused of crime shall be subjected to 
 law in the regular course of the administra- 
 tion in courts of justice; In re Converse, 137 
 U. S. 624, 11 Sup. Ct. 191, 34 L. Ed. 796 ; that 
 the accused be present at every stage of the 
 trial, but not in the appellate court, when he 
 has counsel, and when that court is merely 
 deciding as to prejudicial error below ; Dow- 
 dell v. U. S., 221 U. S. 325, 31 Sup. Ct. 590, 
 55 L. Ed. 753. 
 
 "No right, privilege, or immunity in re- 
 spect of due process, at any stage in the 
 duty of affording it arises under the XlVth 
 Amendment unless there be denial of the 
 
 right by the state or its officers;" no im- 
 munity is secured against the lawlessness of 
 private individuals who take a prisoner from 
 the custody of the state officers and murder 
 him to prevent his having the benefits of a 
 trial by operation of the state's established 
 course of judicial procedure ; U. S. v. Pow- 
 ell, 151 Fed. 648, a very comprehensive opin- 
 ion by Jones, D. J., in the circuit court of 
 Alabama. 
 
 While the XlVth Amendment protects the 
 citizen in his right to engage in any lawful 
 business, it does not prevent legislation in- 
 tended to regulate useful occupations, which, 
 because of their nature and location, may 
 prove injurious or offensive to the public. It 
 does not prevent a municipality from pro- 
 hibiting any business which is inherently 
 vicious and harmful ; nor does it prevent a 
 state from regulating or prohibiting a non- 
 useful occupation which may become harm- 
 ful to the public, and the regulation or pro- 
 hibition need not be postponed until the evil 
 is flagrant ; Murphy v. California, 225 U. S. 
 623, 32 Sup. Ct. 697, 56 L. Ed. 1229, 41 L. R. 
 A. (N. S.) 153. There is nothing in the XlVth 
 Amendment to prevent a state from requiring 
 individuals to make, on receiving due com- 
 pensation, such concessions to each other as 
 the public welfare demands, and a statute 
 permitting the exercise of the right of em- 
 inent domain for railways, etc., for working 
 mines, was held to be constitutional and to 
 authorize condemnation of the right to cross 
 the land of a private owner by an aerial 
 bucket line, necessary for the working of a 
 mine; Strickley v. Min. Co., 200 U. S. 527, 
 26 Sup. Ct. 301, 50 L. Ed. 581, 4 Ann. Cas. 
 1174; Clark v. Nash, 198 U. S. 361, 25 Sup. 
 Ct. 676, 49 L. Ed. 1085, 4 Ann. Cas. 1171. 
 
 Acts and Proceedings Held Valid. Stat- 
 utes or ordinances which have been held val- 
 id as not being deprivations of liberty or 
 property without due process of law are: 
 Prohibiting the carrying of dangerous weap- 
 ons; Miller v. Texas, 153 U. S. 535, 14 Sup. 
 Ct. 874, 38 L. Ed. 812; creating a board of 
 registration for physicians; Reetz v. Mich- 
 igan, 1S8 U. S. 505, 23 Sup. Ct. 390, 47 L. Ed. 
 563 (where it was said that due process of 
 law is not necessarily judicial process and 
 the right of appeal is not essential to it) ; 
 taxing stocks of railroads in other states 
 (held not unconstitutional because no sim- 
 ilar tax was laid upon stock of domestic 
 railroads or foreign railroads doing business 
 in Alabama, the property of the former class 
 of railroads being untaxed and that of the 
 latter two classes being taxed by the state) ; 
 Kidd v. Alabama, 188 U. S. 730, 23 Sup. Ct. 
 401, 47 L. Ed. 669 ; imposing a personal tax 
 on all property in or out of the state; Glid- 
 den v. Harrington, 1S9 U. S. 255, 23 Sup. Ct. 
 574, 47 L. Ed. 798 (where it was said that 
 what is required by the XlVth Amendment, 
 in the assessment of ordinary annual taxes
 
 DUE PROCESS OF LAW 
 
 951 
 
 OF LAW 
 
 on personal property, should be construed 
 liberally, and while notice may be required, 
 ii Deed cot be personal, but may be by pub- 
 lication or by posting at polling places, and 
 it was also held in another case that in con- 
 demning property for municipal purpo 
 is sufficient to give notice by publication, 
 with opportunity for hearing; Wight v. Da- 
 vidson, IM U. S. 371, 21 Sup. Ct 616, 46 L. 
 Ed. 900). So the right is not Infringed by 
 Imposing liabilities on particular classes, as 
 an act making persons driving herds over a 
 highway liable for damages done to 11 ; Jones 
 v. Brim, 165 CJ. S. 180, 17 Sup. Ct 282, 41 L. 
 Ed 677; or sheep owners for grazing on the 
 public domain; Bacon v. Walker, 204 U. S. 
 .•ill, l;T Sup. Ct 289, 51 L. Ed. 499; or mak- 
 ing railroads liable to employes for the neg- 
 ligence of fellow employes; Missouri Pac. R. 
 Co. v. Mackey, 127 U. S. 205, 8 Sup. Ct. 1161, 
 
 32 L. Ed, 107; or for fires caused hy 1 10- 
 
 tives; St. Louis & S. F. R. Co. V. Mai hews, 
 165 U. S. 1, 17 Sup. Ct 243, 41 L. Ed 611; 
 or requiring railroads to pay damages for the 
 diminution in value of farms by the com- 
 pany's failure to put up fences and cattle 
 guards; Minneapolis & St. L. R. Co. v. Bm- 
 mons, 149 U. S. 3G4, 13 Sup. Ct. 870, 37 L. 
 Ed. 7C>!> ; requiring log owners to pay fees 
 of state officer for surveying and scaling logs; 
 Lindsay & P. Co. v. Mullen, 176 U. S. 126, 20 
 Sup. Ct. 325, 44 L. Ed. 400; making mine 
 owners liable for defaults of mine managers 
 and examiners selected by them under a 
 state law ; Wilmington Star Min. Co. v. 
 Fulton, 205 U. S. 60, 27 Sup. Ct. 412, 51 L. 
 Ed. 708; requiring railroad stockholders to 
 pay their just proportion of bonded debt; 
 Union Pac. R. Co. v. U. S., 99 U. S. 700, 25 
 L Ed. 496; the exaction of tolls for the use 
 of an improved water way; Sands v. Imp. 
 Co., 123 U. S. 2SS, 8 Sup. Ct. 113, 31 L. Ed. 
 149; subjecting buildings used for gaming to 
 the payment of money lost at play; Marvin 
 v. Trout, 199 U. S. 212, 26 Sup. Ct. 31, 50 L. 
 Ed. 157; authorizing the destruction of nets 
 used in illegal fishing; Lawton v. Steele, 
 152 U. S. 133, 14 Sup. Ct. 499, 3S L. Ed. 385 : 
 subjecting a railroad corporation to a rule 
 of negligence prescribed by a general act 
 under which it is incorporated; Chicago, R. I. 
 & P. R. Co. v. Zernecke, L83 D. S. 682, 22 
 Sup. Ct. 229. 46 L. Ed. 339; taking private 
 property under state law authorizing the ex- 
 ercise of the right of eminent domain for 
 taking private property; Missouri PaC. R. 
 
 Co. v. Nebraska, 164 U. S. 403, 17 Sup. Ct 
 130, 41 L. Ed. 489; as corporate fram 
 
 Greenwood v. Freight Co., 105 U. S. 13, 26 
 L. Ed. 9<il : for flooding lands; Manigault v. 
 Springs, 199 U. S. 473, 26 Sup. Ct 127, 50 L. 
 Ed 274; construction of a levee; Eldridge 
 v. Tre/.evant. 160 U. S. 452, L6 Sup. Ct 345, 
 40 L. Ed. 490; condemnation of a right of 
 way across a place' mining claim: Strickley 
 v. Min. Co., 200 U. S. 5-7, 26 Sup. Ct 301, 
 
 50 1.. Ed. 581, 4 1174; constructing 
 
 a dam in a stream i. tying the 
 
 damage to ovi d< rs; I !• ad v. \; 
 s. 9, 5 Su] . Ct 4 
 
 nation of Bhan 1 for 
 
 its Improvement nnd 
 7. i:. Co., 203 D. S. 372, 27 Bi 
 Ed. 231 ; acl - Imposing spe ial '■ 
 public irporatio 
 
 electric i ompany to pay salai I 
 .-doners to supervise them ; 
 Squire. 145 O. S. 175, 12 Sup. I 36 L. 
 
 Ed 666; compelling a railroad coi 
 pay for the removal of a grade ■ 
 York & N. B. R. Co. v. Bristol, 151 Q. S. 556, 
 14 Sup. Ct 437, 38 L. Ld. 2< lirlng 
 
 the removal of a bridge and culvert; Chi- 
 cago, B. & Q. R. Co. v. Illinois, 200 D. S. 56U 
 26 Sup. Ct 341, 50 L. Ed. 596, 4 Ann 
 117."; requiring the lowering or removal of 
 a tunnel which had become an obstrucl 
 Davigation since its construction; West Chi- 
 cago St R. Co. v. Illinois, urn D. s. 5 
 Sup. Ct 518, 50 L. Ed 845; requiring a rail: 
 road company to pay for examiner-; as to 
 competency of its employes; Nashville, C. & 
 St. L. Ry. v. Alabama, 128 U. S. 96, 9 Sup. 
 Ct. 28, 32 L. Ed. 352; requiring railroad to 
 furnish track connections at Intersections; 
 Wisconsin, M. & P. R. Co. v. Jacol ion, 17U D. 
 s. 287, 21 Sup. Ct L15, 45 L. Ed. 194; re- 
 quiring a gas company to chai - ation 
 of its pipes; New Orleans Cas Light Co. V. 
 Drainage Commission, 197 U. S 5 Sup. 
 Ct 471. 19 L. Ed. 831. 
 
 So the guaranty is not infringed by com- 
 pulsory vaccination; .Tacobson v. Massachu- 
 setts, 197 U. S. 11, 25 Sup. Ct. 358, 49 L. Bd. 
 643, 3 Ann. Cms. 7<i5; prohibition against 
 sales of options on grain; Booth v. Illinois, 
 1S4 U. S. 4L'.". ; regulating charges of ware- 
 housemen; Munn v. Illinois, 94 Q. S. 113, 24 
 L. Ed 77; the danger that testimony 
 in a proceeding under a state law may in- 
 criminate the witness in a possible prosecu- 
 tion under the federal anti-trust law; .lack 
 v. Kansas, 199 D. S. 372, 26 Sup. Ct 7::. 50 
 L. Ed. 234, 4 Ann. Cas. 689; or by t; 
 struction of the value of property by statute 
 forbidding the manufacture or sale of intoxi- 
 cating liquors; Mugler v. Kansas. L23 0. 8. 
 823, 8 Sup. Ct 273, -".l L. Ed 205; or of 
 oleomargarine; Capital City Dairy I 
 Ohio. 183 C s. 238, 22 Sup. Ct 120, 
 Ed 171 ; or by taxing artificially i • 
 oleomargarine, even if the tax will suppress 
 
 the manufacture; M- Cray v. I". S.. 195 U. 8. 
 27, 24 Sui '. I' 1 C* B4 78, 1 Ann. 
 
 Cas. 561 : making water rents a prior U 
 land; Provident tost for Savings v. Jersey 
 City, 113 D. s. 506, 6 Sup. Ct 612, 28 L Ed. 
 U02; subordinating claims of non-resident 
 mortgagee to those of resident creditors of a 
 a corporation ; Sully v. Ban . 178 0". 
 s. 289, 20 Sup. Ct 935, 44 L. Ed 1072; the 
 appointment of a receiver in a railroad fore-
 
 DUE PROCESS OF LAW 
 
 952 
 
 DUE PROCESS OF LAW 
 
 closure suit; St Louis, G. & Ft. S. Ry. Co. 
 v. Missouri, 156 U. S. 47S, 15 Sup. Ct 443, 
 39 L. Ed. 502; precluding defense by life 
 insurance company based on false and fraud- 
 ulent statement in application unless tbe mat- 
 ter represented actually contributed to tbe 
 death of the insured; Northwestern Nat 
 Life Ins. Co. v. Riggs, 203 U. S. 243, 27 Sup. 
 Ct 126, 51 L. Ed. 168, 7 Ann. Cas. 1104 
 (where it was said that liberty means liberty 
 of natural and not artificial persons) ; as- 
 sessment for opening streets on the front 
 foot rule, held not void because levied after 
 the work was completed or because, when 
 the work was ordered, the city could under 
 a statute repealed after the work was com- 
 pleted and before assessment, include part 
 of the expenses in general taxes and levy 
 the assessment on a valuation basis under 
 which a smaller amount would have been 
 assessed against these lands ; City of Seattle 
 v. Kelleher, 195 U. S. 351, 25 Sup. Ct. 44, 49 
 L. Ed. 232 ; the imposition of some duty on 
 transfer of stock ; New York v. Reardon, 204 
 U. S. 152, 27 Sup. Ct 1SS, 51 L. Ed. 415, 9 
 Ann. Cas. 736 ; limiting to eight hours a day 
 the period of work in under-ground mines; 
 Holden v. Hardy, 169 U. S. 366, 18 Sup. Ct. 
 383, 42 L. Ed. 780; a New York tax on a 
 Pennsylvania fire insurance company on 
 premiums received in New York, being the 
 same that was required in Pennsylvania ; 
 Fire Ass'n of Philadelphia v. New York, 119 
 U. S. 110, 7 Sup. Ct. 10S, 30 L. Ed. 342 (where 
 it was held a condition precedent to doing 
 business in the state). - 
 
 The grant by a state to a corporation of 
 the exclusive right or privilege of maintain- 
 ing slaughter houses, guarded by proper lim- 
 itation of prices to be charged and imposing 
 the duty of providing ample conveniences, 
 with permission to all owners of stock to 
 land, and to all butchers to slaughter, at 
 those places is valid; Slaughter House Cases, 
 16 Wall. (U. S.) 36, 21 L. Ed. 394. 
 
 Among the statutes and judicial or admin- 
 istrative proceedings which have been held 
 not to be obnoxious to the XlVth Amend- 
 ment as deprivation of property without 
 due process of law, are the following: Pro- 
 viding for the widening of a street; Lent 
 v. Tillson, 140 U. S. 316, 11 Sup. Ct 825, 35 
 L. Ed. 419 ; regulating contests between per- 
 sons claiming judicial offices ; Kennard v. 
 Louisiana, 92 U. S. 4S0, 23 L. Ed. 47S ; mak- 
 ing water rates a charge on lands prior to 
 liens; Provident Inst, for Savings v. Jersey 
 City, 113 U. S. 506, 5 Sup. Ct. 612, 28 L. Ed. 
 1102; authorizing any person to erect and 
 maintain a mill dam in a navigable stream, 
 paying to the owners of the lands affected 
 damages assessed in a judicial proceeding; 
 Head v. Mfg. Co., 113 U. S. 9, 5 Sup. Ct. 441, 
 28 L. Ed. SS9 ; providing for drainage of low 
 lands, damages to be assessed by commis- 
 sioners after notice and hearing; Wurts v. 
 
 Hoagland, 114 U. S. 606, 5 Sup. Ct. 1086, 29 
 L. Ed. 229; a tax law giving notice to the 
 taxable by requiring statement of his prop- 
 erty, with public sessions when he has a 
 right to be present and to be heard, with an 
 opportunity in a suit at law to contest the 
 validity of the proceeding ; Cincinnati, N. O. 
 & T. P. R. Co. v. Kentucky, 115 U. S. 321, 6 
 Sup. Ct. 57, 29 L. Ed. 414; for valuation and 
 classification of property with different pro- 
 visions as to different classes for ascertain- 
 ing the value and a right of appeal, applying 
 the same means and methods to individuals 
 of each class; Cincinnati, N. O. & T. P. R. 
 Co. v. Kentucky, 115 U. S. 321, 6 Sup. Ct. 57, 
 29 L. Ed. 414; requiring railroads to erect 
 and maintain cattle guards and in default 
 thereof to be liable for double damages ; Mis- 
 souri Pac. R. Co. v. Humes, 115 U. S. 512, 6 
 Sup. Ct. 110, 29 L. Ed. 463; or to fence a 
 track under penalty of double damages ; Min- 
 neapolis & St. L. R. Co. v. Beckwith, 129 U. S. 
 26, 9 Sup. Ct. 207, 32 L. Ed. 585; Spealman 
 v. Ry. Co., 71 Mo. 434; the imposition upon 
 property of a tax or other burden for rec- 
 lamation of swamp lands ; Reclamation Dist 
 No. 108 v. Hagar, 4 Fed. 366; and see Lent 
 v. Tillson, 140 U. S. 310, 11 Sup. Ct. S25, 35 
 L. Ed. 419 ; Walston v. Nevin, 128 U. S. 578, 
 9 Sup. Ct. 192, 32 L. Ed. 544; Pittsburgh, 
 C, C. & St L. R. Co. v. Backus, 154 U. S. 421, 
 14 Sup. Ct. 1114, 38 L. Ed. 1031; a paving" 
 law originating proceedings on petition of 
 two-thirds of the owners of lots bordering on 
 a street, and taxing abutting owners ; Schaef- 
 er v. Werling, 188 U. S. 516, 23 Sup. Ct. 449, 
 47 L. Ed. 570; Hibben v. Smith, 191 U. S. 
 310, 24 Sup. Ct. 88, 48 L. Ed. 195; and as 
 to back-lying property; Voris v. Glass Co., 
 163 Ind. 599, 70 N. E. 249 ; Cleveland, C, C. 
 & St. L. R. Co. v. Porter, 210 U. S. 177, 28 
 Sup. Ct. 647, 52 L. Ed. 1012 (where it was 
 held that the legislature may create back 
 taxing districts of property extending back) ; 
 assessment for paving, etc., not void because 
 lot is not benefited by the improvements ow- 
 ing to its present use ; the land must be con- 
 sidered simply in its general relations and 
 apart from its particular use at the time; 
 Louisville & N. R. Co. v. Paving Co., 197 U. 
 S. 430, 25 Sup. Ct. 466, 49 L. Ed. 819 ; charg- 
 ing the cost of paving against lots fronting 
 on a street according to the frontage, the 
 XlVth Amendment being held not applicable ; 
 French v. Paving Co., 181 U. S. 324, 21 Sup. 
 Ct. 625, 45 L. Ed. 879 ; providing for the as- 
 sessment of damages for laying out, etc., 
 streets upon owners of land benefited there- 
 by and determining the amount of tax and 
 also what lands are benefited, with notice to 
 and hearing of each owner at some stage of 
 the proceeding upon the question of his pro- 
 portion of the tax to be assessed; People v. 
 City of Brooklyn, 4 N. Y. 419, 55 Am. Dec. 
 266; Spencer v. Merchant, 125 U. S. 345, 8 
 Sup. Ct 921, 31 L. Ed. 763; an order of
 
 DUE PROCESS OF LAW 
 
 953 
 
 DUE PROCESS OF LAW 
 
 drainage commissioners requiring a railroad i 
 company at its own expense to remove a 
 bridge and culvert over a natural water 
 course and to erect a new one in conformity 
 with the regulations established by the com- 
 missioners; 0., B. .v Q. Ry. v. People, 200 * . 
 S. 561, 26 Sup. Ct 341, 60 L. Kd. 596; mak- 
 ing railroad companies liable iur damage to 
 employes caused by the negligence of fellow 
 servants; Missouri Pae By. Co. v. Mackey, 
 127 r. s. 205, 8 Sup. Ct. 1161, 32 L. 101. L07; 
 authorizing a city to open and Improve 
 streets and assess damages against the own- 
 ers of adjacent lots; Walston v. Nevin. L28 
 U. S. 578, 9 Sup. Ct 192, 32 L. Ed. 544; 
 verting an appearance d. b. e. Into a general 
 appearance and submission to Jurisdiction; 
 Birmingham v. R. Co., 137 N. Y. 1"), 32 N. E. 
 995, 18 L. R. A. 764; if it does not attempt 
 to restrain the suitor from fully protecting 
 his life, liberty and property against any at- 
 to enforce a judgment against him 
 without due process of law; Kauffman v. 
 Wooters, L38 0. S. 285, 11 Sup. Ct 298, 34 
 L. Ed. 962; a municipal ordinance prohibit- 
 ing a private market within six squares of 
 any public market under penalty of trial 
 by magistrate; Natal v. Louisiana, 139 U. S. 
 621, 11 Sup. Ct 636, 35 L. Ed. - ss ; an ordi- 
 nance closing laundries between 10 p. m. and 
 6 a. in., it being held merely a police regula- 
 tion and not a violation of the XlVth Amend- 
 ment ; Barbier v. Connolly, 113 U. S. 27, 5 
 Sup. Ct. 357, 28 L. Ed. 923; so also a stat- 
 ute forbidding inn-keepers, common carriers, 
 theatres, schools and cemetery associations 
 from excluding any prison by reason of race 
 or color; People v. Kiug, 110 N. Y. 418, 18 
 X. E. 245, 1 L. R. A. 293, 6 Am. St Rep. 
 389; a statute requiring an annual license 
 tax from foreign corporations which do not 
 invest and use their capital within the state; 
 Pembina Mining Co. v. Pennsylvania, 125 U. 
 S. 181, 8 Sup. Ct 737, 31 L. Ed 650; an af- 
 firmance on appeal of death sentence in the 
 absence of the accused and his counsel and 
 without notice to either; Schwab v. Berg- 
 gren, 143 U. S. 44L>, 12 Sup. Ct 525, 36 L. Ed. 
 218; punishment of death by electricity; 
 McElvaine v. Brush, 142 D. S. 155, L2 Sup. 
 Ct L56, 35 L. Ed 973 : trials without a jury 
 if according to the settled course of proceed- 
 Walker v. Sauvinet, 92 D. S. 90, 23 L. 
 Ed 678; Gil son v. Mason, .". Nev. 283; Janes 
 v. Reynolds' Adm'rs, 2 Tex. 250; whether 
 by motion or action, if sanctioned by state 
 law and with opportunity for hearing; [owa 
 O. Ky. Co. v. Cowa, 160 D. S. 389, 16 Sup. Ct 
 344, 40 L. Ed. 167; and the bearing need not 
 be according to the practice of the cum-ts, 
 but by appropriate judicial proceedings; 
 tgo, B. & Q. R. Co. v. State, 47 Neb. 549, 
 W. 624, 41 L. R. A. 181, 53 Am. St. 
 Rep. r.r>7 ; the decisions of administrative 
 officers under the immigration acts; Nishi- 
 rnura Ekiu v. U. S., 142 U. S. 651, 112 Sup. 
 
 Ct 336, 35 L. Ed. 114G ; trial and sentence 
 by a judge de fa art de jure, though 
 
 appointed by the governor without author- 
 ity ; in re Manning, 139 D. 8. 504, li Sup. 
 
 564; com I 
 tic facto offi© ;■ ; in re Ah I. 
 b Sawy. 41U; altering I 
 water rates In a city; Spring \ai 
 Works v. Bartlett 16 
 validating ultra 
 s. Mori 
 
 940, -7 L. Ed 1 
 penalty for fraud; 
 
 195; limiting municipal taxation ti 
 payment Of a judgment; State v. Maj 
 
 09 i . S. 285, 3 Su] • t. 211, 
 ut L Ed. 936 ; proceeding by informs 
 Rowan v. Stat.-. 30 Wis. 129, 11 Am. . 
 Hurtado v. P B 514 , I B ip. Ct 
 
 u j. 292, 28 L. Ed. 2 ed and af- 
 
 firmed in Maxwell v. Dow, 17»; r. S. 581, 20 
 Sup. Ct 148, 494, i 1 I. Ed -"..'7; McNn 
 California, 149 I'. S. 645, 13 Sup. i 
 L. Ed 882 ; Hodgson v. Vermonl 
 262, 1 - 80, 42 L. Ed. 461 : Bolln v. 
 
 Nebraska, 176 O. S. 83, 20 
 
 2; Davis v. Burke, 179 0. - 
 Sup. Ct 210, 45 I- Ed. 249; i oni a - 
 J., in Jones v. Robbins, 8 Gray (W 
 see also State v. Starling, 15 Rich. I - 
 120; the trial of Lthout a jury ; 
 
 Walker v. Sauvinet, 92 D. S. 90, 23 L. Kd. 
 67S ; the prim Iple with b de- 
 
 tails being that the provision against taking 
 property without due 
 
 apply where the party has had a fair trial 
 in a court of justice according to the I 
 i of proceeding applicable to such case; Da- 
 vidson v. New Orleans, 96 0. - 
 616; Kennard v. Louisiana. 92 D. S. 180, 23 
 L, Ed. 478; the fact that the judgment of a 
 commissioner is final does not operate 
 deprivation of due process of law; Kx Parte 
 Ah L'ook. lit CaL 402; nor • entry 
 
 of a judgment on forfi 
 
 v. Quigg, 59 N. V. B3; a statute au- 
 thorizing the Immigration commissioner to 
 ; the landing of lewd women; Bx 
 I. 402; prohibiting 
 any person from making or mending bur- 
 glars - tools ; Kx parte Roberts, l< 
 i.7, S. W. 726; prohibit:: from sell- 
 
 ing liquor in places where women ai 
 milted to enter; < 'renin v. Adams, 192 0. 8. 
 ins, 24 Sup. Ct 219, I s - L, I 
 the court said: "There is no Inherent right 
 in a citizen to sell Intoxicating liquors by 
 retail ; it is not a privi! 
 state or of a citizen of the Di Ited S 
 a statute making the owner of premisi 
 which liquor Is sold with his knowledge lia- 
 |,1,. lor all da; dting from the in- 
 
 toxication of any person purchasing the liq- 
 uor: Bertholf v. O'Reilly, 7» X. v. G 
 Am. Rep 823 ■ an ordinance prohibiting the 
 keeping of billiard halls (not unconstitutional
 
 DUE PROCESS OF LAW 
 
 954 
 
 DUE PROCESS OF LAW 
 
 either as depriving the owner of his prop- 
 erty without due process of law, or as de- 
 priving him of the equal protection of the 
 laws) ; Murphy v. California, 225 U. S. 623, 
 32 Sup. Ct. 097, 56 L. Ed. 1229, 41 L. R. A. 
 (N. S.) 153 ; (and the classification regulating 
 billiard halls based on hotels having twenty- 
 five rooms is reasonable ; Murphy v. Califor- 
 nia, 225 U. S. 623, 32 Sup. Ct. G97, 56 L. Ed. 
 1229, 41 L. R. A. (N. S.) 153) ; the discharge 
 of a jury in a murder trial for cause shown 
 before being sworn ; Howard v. Kentucky, 
 200 U. S. 164, 26 Sup. Ct. 1S9, 50 L. Ed. 421 
 (where it was held that the amendment was 
 not intended to interfere with the power of 
 the state to protect life, liberty or property 
 of citizens, or with the power of adjudica- 
 tion of its courts, in administering process 
 provided by the state law) ; regulation by 
 the state of admission of persons to places 
 of amusement, with the provision that per- 
 sons holding tickets therefor shall be ad- 
 mitted if not under the influence of liquor, 
 boisterous or of immoral character ; Western 
 Turf Ass'n v. Greenberg, 204 U. S. 359, 27 
 Sup. Ct. 384, 51 L. Ed. 520; statutes au- 
 thorizing the administration on the estates 
 of absentees if the period of absence be fixed 
 and not unreasonably brief ; Cunnius v. 
 School Dist, 198 U. S. 458, 25 Sup. Ct. 721, 
 49 L. Ed. 1125, 3 Ann. Cas. 1121, affirming 
 id., 206 Pa. 469, 56 Atl. 16, 98 Am. St. Rep. 
 790; a municipal ordinance providing for 
 the inspection of good products kept in stor- 
 age and for the summary seizure and de- 
 struction of what is unfit for use ; North 
 American Cold Storage Co. v. Chicago, 151 
 Fed. 120; the restriction of the right of ap- 
 peal to an intermediate appellate court in 
 lieu of the state supreme court; Missouri v. 
 Lewis, 101 U. S. 22, 25 L. Ed. 989; a review 
 by an appellate court of final judgment in a 
 criminal case not being necessary to consti- 
 tute due process ; McKane v. Durston, 153 
 U. S. 684, 14 Sup. Ct. 913, 38 L. Ed. 867 ; the 
 entry of a judgment on a bond which is for- 
 feited is not invalid ; Janes v. Reynolds' 
 Adm'rs, 2 Tex. 250 ; nor the entry of a judg- 
 ment for money which is void for want of 
 proper service; York v. Texas, 137 U. S. 15, 
 11 Sup. Ct. 9, 34 L. Ed. 604 ; authorizing the 
 sale of animals running at large ; Campau 
 v. Langley, 39 Mich. 45l, 33 Am. Rep. 414 ; 
 making a garnishee liable to pay a judg- 
 ment if he fails to render a sworn account; 
 Vaughan v. Furlong, 12 R. I. 127 ; conviction 
 and sentence to death of a prisoner when 
 after the verdict one of the jurors was in- 
 sane, the court having upon inquiry found 
 that he was of sufficient mental capacity dur- 
 ing the trial to act as a juror ; Jordan v. 
 Massachusetts, 225 U. S. 167, 32 Sup. Ct. 651, 
 56 L. Ed. 1038. 
 
 A transfer or succession tax is valid ; 
 Blackstone v. Miller, 18S U. S. 189, 23 Sup. 
 Ct. 277, 47 L. Ed. 439 ; Magoun v. Bank, 170 
 
 U. S. 2S3, 18 Sup. Ct. 594, 42 L. Ed. 1037; 
 it does not violate either the XlVth Amend- 
 ment or sec. 10 of art. I, of the constitution ; 
 Orr v. Gilman, 183 U. S. 278, 22 Sup. Ct. 213, 
 46 L. Ed. 196 (where it was held that the 
 opinion in Carpenter v. Pennsylvania, 17 
 How. [U. S.] 456, 15 L. Ed. 127, though prior 
 to the XlVth Amendment, correctly defines 
 the limits of jurisdiction between the state 
 and federal governments in respect of con- 
 trolling the assets of decedents both before 
 and after that amendment); nor does a state 
 inheritance tax; Campbell v. California, 200 
 U. S. 87, 26 Sup. Ct. 1S2, 50 L. Ed. 3S2 (where 
 it was said that the XlVth Amendment does 
 not deprive the state of the right to regulate 
 and burden the right of inheritance, but at 
 the most can only be held to restrain such an 
 exercise of power as would exclude the con- 
 ception of judgment and discretion and be 
 so obviously arbitrary and unreasonable as 
 to be beyond the pale of governmental au- 
 thority) ; a provision in the California con- 
 stitution that "all contracts for the sales of 
 shares of capital stock of any corporation or 
 association on margin shall be void and any 
 money paid on such contracts may be re- 
 covered by the party paying it by suit in any 
 court of competent jurisdiction," directed 
 against sales on margins ; Ottis v. Parker, 
 1S7 U. S. 606, 23 Sup. Ct. 168, 47 L. Ed. 323. 
 A tax law which gives a right to be heard, 
 but does not extend a rehearing on appeal to 
 railroad companies, though it does to ordina- 
 ry taxpayers, is valid ; Pittsburgh, C, C. & 
 St. L. R. Co. v. Backus, 154 U. S. 421, 14 
 Sup. Ct. 1114, 38 L. Ed. 1031, where Brewer, 
 J., says: "The power of a state to make 
 classifications in judicial or administrative 
 proceedings carries with it the right to make 
 such a classification as will give to parties 
 belonging to one class two hearings and to 
 parties belonging to a different class only a 
 single hearing;" and on this authority a 
 statute making final the decision of an in- 
 ferior court in a local option election con- 
 test was held valid ; Saylor v. Duel, 236 111. 
 429, 86 N. E. 119, 19 L R. A. (N. S.) 377. 
 See Equal Protection of the Laws. 
 
 An erroneous decision does not deprive the 
 unsuccessful party of liberty without due 
 process of law ; Central Land Co. v. Laidley, 
 159 U. S. 103, 16 Sup. Ct. 80, 40 L. Ed. 91 ; 
 nor do mere errors in the administration of 
 a state statute not unconstitutional ; Lent v. 
 Tillson, 140 U. S. 316, 11 Sup. Ct. 825, 35 L. 
 Ed. 419 ; nor imprisonment under a valid 
 law, though there was error in the proceed- 
 ings; In re Ah Lee, 5 Fed. 899; nor error 
 in a charge to a jury in a criminal case; 
 Davis v. Texas, 139 U. S. 651, 11 Sup. Ct. 
 675, 35 L. Ed. 300. The guaranty is not vio- 
 lated by an order requiring an attorney to 
 defend an accused person gratuitously; 
 Presby v. Klickitat County, 5 Wash. 329, 31 
 Pac. 876. The XlVth Amendment did not
 
 DUE PROCESS OF LAW 
 
 955 
 
 DUE PROCESS OF LAW 
 
 change the law as held prior to it that regula- 
 tion of the use, or even of the price of the 
 use, of private property, was not depriving 
 the owner of it without due process of law ; 
 Munn v. Illinois, 94 U. S. 113, 24 L. Ed. 77. 
 
 Acts and Proceedings Which Violate the 
 Guaranty of Due Process of Law. Acts of a 
 state held to infringe the guaranty of due 
 process of law are: Taking property by the 
 state for public use without compensation; 
 Chicago, B. & Q. R. Co. v. Chicago, 166 D. 8. 
 226, 17 Sup. Ct 5S1, 41 L. Ed. 071) ; Norwood 
 v. Baker, 172 U. S. 2G9, 19 Sup. Ct 187, 43 L. 
 Ed. II.;; Cincinnati, N. O. & T. P. R. Co. v. 
 Kentucky, 115 U. S. 321, 6 Sup. Ct. 57, 29 L. 
 Ed. 414; Smyth v. Amos, L69 D. S. 466, 18 
 Sup. Ct. 418, 42 L. Ed. 819 ; Chicago, B. & Q. 
 R. Co. v. Drainage Com'rs, 200 U. S. 561, 26 
 Sup. Ct 341, 50 L. Ed. 596; and so also it 
 taken under a judgment of the state court 
 though authorized by statute; Chicago, B. & 
 Q. R. Co. v. Chicago. 1GG U. S. 220, 17 Sup. 
 Ct. 581, 41 L. Ed. 979; but if compensation 
 was provided for before a proper tribunal 
 there is due process of law ; Backus v. De- 
 pot Co.. 169 U. S. 557, 18 Sup. Ct 445, 42 L. 
 Ed. 853; Otis Co. v. Mfg. Co., 201 U. S. 140, 
 26 Sup. Ct. 353, 50 L. Ed. 690. The exclusion 
 of colored men on account of race from the 
 grand jury was held a denial of rights under 
 the XlVth Amendment : Rogers v. Alabama, 
 192 U. S. 226, 24 Sup. Ct. 257, 4S L. Ed. 417. 
 Other acts held unconstitutional were: 
 One forbidding the manufacture of cigars 
 in tenement houses; In re Jacobs, 98 N. Y. 
 98, 50 Am. Rep. 636 ; and a New York stat- 
 ute respecting the sale of oleomargarine; 
 People v. Rosenberg, 138 N. Y. 410, 34 X. E. 
 2S5 (on the other hand the constitutionality 
 of the Pennsylvania act on the same subject 
 was affirmed; Powell v. Commonwealth, 114 
 Pa. 265); a prohibition against laundries ex- 
 cept of brick or stone, wit bout the consent ol 
 the supervisors, because clearly intended for 
 discrimination against the Chinese; Yick Wo 
 v. Hopkins, 118 U. S. 356, 8 Sup. Ct. 1064, 30 
 L. Ed. 220; a statute requiring every mem- 
 ber of a firm of plumbers to be a registered 
 plumber, whether his duties require him to 
 have knowledge of that trade or not, is an 
 unwarranted interference with liberty and 
 property; Schnaier v. Importation Co., 182 
 N. Y. 83, 74 N. E. 501, 70 L. K. A. 722, 108 
 Am. St. Rep. 790; State v. Smith. 42 Wash. 
 237, 84 Pac. 851, 5 L. R. A. (N. S.) 674, and 
 note, 114 Am. St. Rep. 114. 7 Ann. ('as. 577; 
 so is a statute forbidding women to work in 
 a factory before 6 a. in. or after 9 p. m. ; Peo- 
 ple v. Williams, 189 N. V. 131, 81 N. E. 778, 
 12 L. R. A. (N. S.) 1130, 121 Am. St. Rep. 
 854, 12 Ann. Cas. 798; and one limiting hours 
 of labor for employe's of bakers; Lochnei V. 
 New York, 19S U. S. 45, 25 Sup. Ct. 539, 49 
 L. Ed. 937, 3 Ann. Cas. 1133, reversing Peo- 
 ple v. Loehner. 177 N. Y. 145, 69 N. E. 373, 
 101 Am. St. Rep. 773 (the bake *i;3p case) ; 
 
 but it was held otherwise as to limiting 
 hours of labor in employments when health 
 is Involved, as in underground mines; Hold- 
 en v. Hardy, 169 0. 8 
 L. Ed. 780; Ex parte Kair, 2 
 Pac. 453, 6 Ann. I 
 34 Mont. 571. 87 Pac. 980, 9 . 
 State v. Cantwcll, L79 Mo 
 or for a woman to work in a factory, laun- 
 dry or mechanical establishment i 
 ten hours a day; Mullet • E 
 208 O. S. -112. 2s Sup. Ct 324, 52 L. Ed 
 13 Ann. <'as. 957, affirming State v. M 
 l- Or. 252, 85 Pac. 855, 120 Am. St I 
 11 Ann. I as. 88; or limiting hours of 
 for children under sixteen; State v. - 
 48 Or. 396, 86 Pae 881, 24 L. R. A. I 
 1121; In re Spei 
 117 Am. St Rep. 137, 9 Ann. Cas. I 
 
 Denial of due process of law by municipal 
 authorities while acting as a board of equal- 
 ization amounts to a denial by the i 
 Raymond v. Traction Co., 207 ''. S. 2 
 Sup. Ct 7, 52 L. Ed. 78, 12 Ann. C B. 757; 
 the guaranty is denied by imprisonment un- 
 der a void ordinance; In re Lee Long, L8 
 Fed. 25':; but not under a valid law by rea- 
 son of error in the proceedings; In re Ah 
 Lee, 5 Fed. 899, 8 Sawy. 410. 
 
 Statutes authorizing the destruction of 
 property used for unlawful gaming wore held 
 void; Lowry v. Rainwater, 70 Mo. 152, .">■"< 
 Am. Rep. 420; the sale of land to 
 
 satisfy void street assessments which the 
 legislature has unconstitutionally attempted 
 to validate; Brady v. King. 53 Cal. 41: the 
 commitment to the workhouse of an a I 
 
 pauper by two overseers ex parte and with- 
 out hearing; City of Portland v. City of 
 Bangor, 65 Me. 120, 20 Am. Rep. 681, re- 
 versing earlier cases before the ad 
 of the XlVth Amendment. A judgment in 
 personam without service within the juris- 
 diction is vend; Pennoyer v. Neff, 95 0. S. 
 714, 24 L. Ed. 565: see York v. Texas, LOT 
 [J. s. 15, 11 Sup. Ct '•». 34 L. Ed. 604; no 
 judgment of a court is due process of law if 
 rendered without jurisdiction or DOtice to the 
 party: Scott V. McNeal, 154 C. S. 34, 14 Sup. 
 Ct IKK 38 L. Ed. 89a A statute providing 
 that the use of an easement shall not 
 idence of a right thereto is unconstitutional 
 as to rights acquired prior thereto; Reyn- 
 olds v. Randall, 12 R. 1. 522; and bo is an 
 act purporting to make a tax d( 
 
 f title: Marx v. Banthorn, 
 148 U. S. 172. 13 Sup. (" .. Ed. 410 
 
 (it may be made prima facie evidence); an 
 act fixing absolute liability on a corporation 
 t( , make compensation for injuries done to 
 property without fault, when no one else 
 would be liable under eral law ; 
 
 Zeigler v. K. Co., " v ala. 594; an act au- 
 thorizing a lien on a tombstone and its sale 
 for Don-payment Without provision for ad- 
 justing the rights of the parties; Brooks v.
 
 DUE PROCESS OF LAW 
 
 956 
 
 DUE PROCESS OF LAW 
 
 Tayntor, 17 Misc. 534, 40 N. Y. Supp. 445; 
 a. statute dispensing with personal service in 
 proceedings where it is practicable and usual, 
 the parties being within the jurisdiction ; 
 Brown v. Board of Levee Com'rs, 50 Miss. 
 468; imposing an assessment for local im- 
 provement without notice or an opportunity 
 for hearing ; it is not enough that the owner 
 may have notice and hearing, the law must 
 provide for it; Stuart v. Palmer, 74 N. Y. 
 183, 30 Am. Rep. 2S9 ; Savannah, F. & W. R. 
 Co. v. Savannah, 96 Ga. 6S0, 23 S. E. 847; 
 Violett v. Alexandria, 92 Va. 561, 23 S. E. 
 909, 31 L. R. A. 3S2, 53 Am. St. Rep. S25. 
 
 The proceedings of a board of equalization 
 of state taxes, its decision being conclusive, 
 are reviewable in the federal courts at the 
 suit of one claiming that he was deprived 
 thereby of due process of law; Raymond v. 
 Traction Co., 207 U. S. 20, 28 Sup. Ct. 7, 52 
 L. Ed. 78, 12 Ann. Cas. 757, where a tax 
 was held to be an illegal discrimination 
 against property of the same class where it 
 was so great as to cause insolvency. 
 
 A state statute requiring that no railroad 
 company shall require a stipulation from its 
 employes waiving damages for injury vio- 
 lates their liberty of contract, and is also 
 void as class legislation in violation of the 
 Ohio constitution ; Shaver v. Pennsylvania 
 Co., 71 Fed. 931. 
 
 A county ordinance, of which the manifest 
 purpose is to limit the number of any kind 
 of game to be killed or taken by one person in 
 a day, and making it a misdemeanor to use a 
 repeating shotgun or magazine gun, is void ; 
 In re Marshall, 102 Fed. 323 (but such pro- 
 hibition is valid when directed against aliens, 
 and is not in contravention of the treaty be- 
 tween Italy and the United States; Com. v. 
 Patsone, 231 Pa. 46, 79 Atl. 928). 
 
 In Norwood v. Baker, 172 U. S. 269, 19 
 Sup. Ct. 187, 43 L. Ed. 443, it was held that 
 taking private property under a rule which 
 excluded any inquiry as to special benefits, 
 the necessary operation of which was to the 
 extent of the excess of the cost of opening 
 the street in question over any special bene- 
 fits accruing to the abutting property there- 
 from, was a taking of private property for 
 private use without compensation. 
 
 A state statute establishing a board of 
 medical examiners and conditions under 
 which persons will be licensed to practice 
 osteopathy does not deprive one who refuses 
 to apply for a license therein of his property 
 under due process of law or deny him the 
 equal protection of the law ; Collins v. Texas, 
 223 U. S. 288, 32 Sup. Ct 286, 56 L. Ed. 439 ; 
 nor does a state statute making entries in 
 public records prima facie, but not conclu- 
 sive, evidence of the validity of the proceed- 
 ings referred to ; Reitler v. Harris, 223 U. S. 
 437, 32 Sup. Ct. 24S, 56 L. Ed. 497. 
 
 Contempt of Court. A commitment for 
 contempt of court is not obnoxious to this 
 
 constitutional provision; State v. Becht, 23 
 Minn. 411 ; Eikenberry v. Edwards, 67 la. 
 619, 25 N. W. 832, 56 Am. Rep. 300; In re 
 Clayton, 59 Conn. 510, 21 Atl. 1005, 13 L. R. 
 A. 66, 21 Am. St. Rep. 128 ; State v. Shepherd, 
 177 Mo. 205, 76 S. W. 79, 99 Am. St. Rep. 
 624; Com. v. Gibbons, 9 Pa. Super. Ct. 527; 
 In re Barnes, 204 N. Y. 108, 97 N. E. 508; 
 Eilenbecker v. District Court, 134 U. S. 31, 
 10 Sup. Ct. 424, 33 L. Ed. 801 ; whether under 
 the inherent power of courts or under stat- 
 utes authorizing summary punishment ; In 
 re Barnes, 147 App. Div. 396, 132 N. Y. Supp. 
 908; Brown v. Powers (la.) 134 N. W. 73; 
 nor is a commitment for failure to pay a 
 tax, not resorted to until other means of col- 
 lection have failed, and then only upon a 
 showing of property possessed, not accessible 
 to levy, but enabling the owner to pay if he 
 chooses; Palmer v. McMahon, 133 U. S. 660, 
 10 Sup. Ct. 324, 33 L. Ed. 772 ; but a person 
 summarily adjudged guilty of contempt by 
 a court without a hearing or service upon 
 him of any process, for an act not committed 
 in the presence of the court, and imprison- 
 ment for non-payment of the fine imposed, 
 is deprived of his liberty without due pro- 
 cess of law ; Ex parte Strieker, 109 Fed. 145. 
 
 To punish for contempt by striking an an- 
 swer from the files and condemning as by 
 default is denial of due process of law ; but, 
 under the power conferred by statute, the 
 answer of a foreign corporation was stricken 
 from the files and a judgment rendered aa 
 by default because of the failure or refusal 
 of the corporation defendant to produce 
 books and papers from outside of the state 
 as required by the statute ; Hammond Pack- 
 ing Co. v. Arkansas, 212 U. S. 322, 29 Sup. 
 Ct. 370, 53 L. Ed. 530, 15 Ann. Cas. 645; 
 which decision on this point, was based up- 
 on the undoubted right of the legislature to 
 create a presumption in respect to the want 
 of foundation of an asserted defense against 
 a defendant who suppresses, or fails to pro- 
 duce, evidence when legally called upon to 
 produce it. 
 
 Where a railroad rate statute was held 
 unconstitutional by a federal court and all 
 the defendants, including the attorney gen- 
 eral, were enjoined from enforcing it, and 
 the attorney general refused to comply with 
 the order, and was fined and committed for 
 contempt, the supreme court refused to dis- 
 charge him on habeas corpus, it being con- 
 sidered that he was a state officer charged 
 with the duty of enforcing the statute, if 
 constitutional, and therefore was properly 
 joined as a defendant; Ex parte Young, 209 
 U. S. 123, 28 Sup. Ct. 441, 52 L. Ed. 714, 13 
 L. R. A. (N. S.) 932, 14 Ann. Cas. 764. 
 
 Notice. Guarantee by the XlVth Amend- 
 ment does not require a state to adopt a par- 
 ticular form of procedure, so long as the ac- 
 cused has had sufficient notice and an ade- 
 quate opportunity to defend himself, and a
 
 DUE PROCESS OF LAW 
 
 957 
 
 DUE Plic LAW 
 
 state may determine, free from federal in- 
 terference or control, in what courts crime 
 may be prosecuted and by what courts the 
 prosecution may be reviewed ; Rogers v. 
 Peck, 109 U. S. 425, 2G Sup. Ct. 87, 50 L. Ed. 
 
 The essential elements of due process of 
 luw are notice and opportunity to defend; 
 Simon v. Craft, 182 U. s. 127, 136, 21 Sup. 
 Ct. 836, 45 L. Ed. 1165; "in determining 
 whether such rights were denied we are gov- 
 erned by the substance of things and not 
 by mere fi.rw;" id., citing Louisville & N. It. 
 Co. v. Schmidt, 177 U. S. 230, '-'<) Sup. Ct. 
 620, 4-1 L. Ed. 747; it is not neeei iry that 
 the proceedings in a state court should be 
 by particular mode, but only that there shall 
 be a regular course of proceedings in which 
 notice is given of the claim asserted and an 
 opportunity to defend against it"; Simon \. 
 Craft, 1S2 U. S. 427, 21 Sup. Ct. 836, 15 L. 
 Ed. 1105, citing Louisville & X. R. Co. v. 
 Schmidt, 177 U. S. 230, 20 Sup. Ct. 620, 41 
 L. Ed. 747. 
 
 While the essential element of due i I 
 is opportunity to be heard, a necessary con- 
 dition of which is notice; Simon v. Craft, 
 182 I". s. 1^7. 21 Sup. Ct. 836, 45 L. Ed. 1165; 
 personal notice is not always necessary; Ja- 
 cob v. Roberts, 223 U. S. 261, 32 Sup. CL 
 303, 56 L. Ed. 429. 
 
 It is necessary that a tax payer be afford- 
 ed a hearing, of which he must have notice, 
 and this requirement is not satisfied by the 
 mere right to Ole objections in writing; Lon- 
 doner v. Denver, 210 U. S. 373, lis Sup. Ct. 
 708, 52 L. Ed. 1103, where it was held that 
 the legislature may authorize municipal im- 
 provements without any petition of land 
 owners who are to be assessed therefor and 
 the proceedings of the municipality in ac- 
 cordance with the charter and without hear- 
 ings, do not deny due process of law to land 
 owners who are afforded a hearing on the 
 assessment itself. 
 
 Federal courts follow state courts in de- 
 ciding as to notice and service under a state 
 statute; Ballard v. Hunter, 204 U. S. 241, 
 27 Sup. Ct. 201, 51 L. Ed. 461. 
 
 A statute providing for the taking of pri- 
 vate property for a railroad and for the as- 
 sessment of damages by commissioners, need 
 not, under the Delaware constitution, pro- 
 vide for notice to the owner of the time and 
 place of meeting of the commissioners, nor 
 need it secure to the owner a hearing; the 
 United States constitution and amendments 
 Impose no restraint upon the states in the 
 Ise of the right of eminent domain, and 
 the words, "doe course of law," in t! 
 
 constitution do not apply thereto; Wi] 
 R. Co.. •"> Del. Ch. 524, in which case I 
 thorities are collected and the construction 
 of these words exhaustively considered by 
 Saulsbury, Ch. Rut as to this and some 
 other cases, holding that notice is not re- 
 
 quired, see Eminent Domas 
 lure. 
 
 As to the doctrine of efore 
 
 in in 
 •_'l llarv. L. Ri 
 
 27 Am. Law Reg. 611, T 
 
 :;i Am. St Re] U 
 Grand v. 0. s.. 12 
 
 ty v. Southern I'a<\ 1;. | 
 
 :; L. l:. A. 194 ; 4 L. R. A. 724; 21 L 
 
 789. 
 
 As to as for Imp -• or 
 
 benefits, Bee v main. 
 
 DUELLING. The fighting of two 
 one against the other, at an appointed time 
 ami place, upon a precedent qui rreL it dif- 
 fers from an affray in this, that 
 occurs on a sudden quarrel, whilt 
 mer is always the result of design. 
 
 When one of the parties is kilh-d, the sur- 
 vivor is guilty of murder; l Ru 3. Ct. 
 Smith v. state, i lerg. (Tenn.) 228; as the 
 deliberate killing of another in a duel is not 
 a killing in a heat of passion which will 
 mitigate the crime, however grievous the 
 provocation nay have been; '■'< Last 581; s 
 Carr. & I'. oil; but evidence of a mutual 
 willingness to light upon the part of persons, 
 one of whom killed the other in a fight, lias 
 been held to authorize an Instruction that 
 ■\\i-v was murder in the second degree; 
 Wiley v. State (Tex.) or, s. W. I! 
 
 Fighting a duel, even where there is oo 
 fatal result, is of itself a misdemeanor. 
 2 Com. Liu-. 252; Clark, Cr. L. 340; C 
 Inst. 157; Const. 167; Barker v. People, -" 
 Johns. (X. Y.) 457; state v. Herriott, l Me- 
 Mull. (S. C.) 126. For cases of mutual com- 
 bat upon a sudden quar: 
 P.T.; 2 l'.ish. Cr. Law S .".11. Under t!.. 
 stitutions of some states, any one directly 
 or indirectly engaged in a duel 
 disqualified from holding public oMiee 
 Com. v. Jones, 10 Bush (Ky.) 725; I 
 v. People, 20 Johns. (N. Y.) 457; Moody v. 
 Com., 4 MetC. i Ky. i 1; State v. Dupont, 2 
 334 : Royal! v. Thomas, 28 
 Gratt, (Va.) 130, 26 Am. Bep. 335; - 
 
 ix.va'. 
 
 DUELLUM. Trial by battle. Judicial 
 combat. Spelman, Qlosa See Wagbb of 
 
 Battel. 
 
 DUES. Whim used of a corporation It In- 
 cludes, in the Kansas constitution, ai 
 tractual liabilities, but Dot, as 
 stockholder, an ultrt Contract Ward 
 
 v. Joslin. 105 Led. 224, 44 C. Q A 
 
 DUKE. The title given to those who are 
 In the highest rank of nobility in El - 
 Firel held by the Black Prince, as a superior 
 kind of earldom. 
 
 DUKE OF YORK'S LAWS. A body of 
 laws compiled in 1665 for the government of 
 the colony of New York-
 
 DUM SE BENE GESSERIT 
 
 95S 
 
 DUNNAGE 
 
 DUM SE BENE GESSERIT (Lat. while he 
 shall conduct himself well). These words 
 signify that a judge or other officer shall 
 hold his office during good behavior, and 
 not at the pleasure of the crown nor for a 
 certain limited time. 
 
 DUM FUIT IN PRISONA (L. Lat). A 
 writ which lay for a man who had aliened 
 lands under duress by imprisonment, to re- 
 store to him his proper estates. Co. 2d Inst. 
 482. Abolished by stat 3 & 4 Will. IV. c. 27. 
 
 DUM FUIT INFRA /ETATEM (Lat). 
 The name of a writ which lay when an in- 
 fant had made a feoffment in fee of his 
 lands or for life, or a gift in tail. Abolished 
 by stat. 3 & 4 Will. IV. c. 27. 
 
 It could be sued out by him after he came 
 of full age, and not before ; but in the mean- 
 time he could enter, and his entry remitted 
 hiin to his ancestor's rights; Fitzh. N. B. 
 192 ; Co. Litt 247, 337. 
 
 DUM NON FUIT COMPOS MENTIS (Lat). 
 The name of a writ which the heirs of a per- 
 son who was non compos mentis, and who 
 aliened his lands, might have sued out to re- 
 store him to his rights. Abolished by 3 & 4 
 Will. IV. c. 27. 
 
 DUM SOLA (Lat while single or unmar- 
 ried). A phrase to denote that something 
 has been done, or may be done, while a wo- 
 man is or was unmarried. Thus, when a 
 judgment is rendered against a woman dum 
 sola, and afterward she marries, the scire 
 facias to revive the judgment must be against 
 both husband and wife. 
 
 DUM SOLA ET CASTA (Lat. while un- 
 married and chaste). Decrees for alimony 
 sometimes provide that it shall be paid only 
 so long as the divorced wife remains unmar- 
 ried and chaste. See Divorce. 
 
 DUMB. Unable to speak; mute. See 
 Deaf and Dumb. 
 
 DUMB-BIDDING. In sales at auction, 
 when the amount which the owner of the 
 thing sold is willing to take for the article 
 is written, and placed by the owner under 
 a candlestick, or other thing, and it is agreed 
 that no bidding shall avail unless equal to 
 that, this is called dumb-bidding. Babing- 
 ton, Auct 44. 
 
 DUN. One who duns or urges for pay- 
 ment; a troublesome creditor. A demand 
 for payment, whether oral or written. 
 Stand. Diet 
 
 DUNGEON. A cell under ground; a place 
 in a prison built under ground, dark, or but 
 indifferently lighted. 
 
 DUNNAGE. Pieces of wood placed against 
 the sides and bottom of the hold of a vessel, 
 to preserve the cargo from the effect of leak- 
 age, according to its nature and quality. Ab- 
 bott, Shipp. 227. 
 
 There is considerable analogy between 
 
 dunnage and ballast. The latter is used for 
 trimming the ship and bringing it down to 
 a draft of water proper and safe for sailing. 
 Dunnage is placed under the cargo to keep 
 it from being wetted by water getting into 
 the hold, or between the different parcels to 
 keep them from bruising and injuring each 
 other; Great Western Ins. Co. v. Thwing, 
 13 Wall. (U. S.) 674, 20 L. Ed. 607. 
 
 DUODECIMA MAN US (Lat). Twelve 
 hands. The oaths of twelve men, including 
 himself, by whom the defendant was allow- 
 ed to make his law. 3 Bla. Com. 343. 
 
 DUPLEX QUERELA (Lat). A complaint 
 in the nature of an appeal from the ordinary 
 to his next immediate superior for delaying 
 or refusing to do justice in some ecclesiasti- 
 cal cause. 3 Bla. Com. 247. 
 
 DUPLEX VALOR MARITAGM (Lat. dou- 
 ble the value of a marriage). Guardians in 
 chivalry had the privilege of proposing a 
 marriage for their infant wards, provided it 
 were done without disparagement, and if the 
 wards married without the guardian's con- 
 sent they were liable to forfeit double the 
 value of marriage. Co. Litt. 82 b; 2 Sharsw. 
 Bla. Com. 70. 
 
 DUPLICATE (Lat. duplex, double). The 
 double of anything. A document which is 
 essentially the same as some other instru- 
 ment. 7 Mann. & G. 93 ; Benton v. Martin, 
 40 N. Y. 345, 
 
 A duplicate writing has but one effect. 
 Each duplicate is complete evidence of the 
 intention of the parties. When a duplicate 
 is destroyed, for example, in the case of a 
 will, it is presumed both are intended to be 
 destroyed; but this presumption possesses 
 greater or less force, owing to circumstances. 
 When only one of the duplicates is in the 
 possession of the testator, the destruction of 
 that is a strong presumption of any intent to 
 revoke both ; but if he possessed both, and 
 destroys but one, it is weaker; when he 
 alters one, and afterwards destroys it, re- 
 taining the other entire, it has been held 
 that the intention was to revoke both ; 1 P. 
 Wms. 346 ; 13 Ves. 310. But that seems to 
 be doubted; 3 Hagg. Eccl. 548. See Com. v. 
 Beamish, 81 Pa. 3S9 ; 49 E. C. L. 94; 103 
 id. 29; Nelson v. Blakey, 54 Ind. 29. As to 
 the execution of a number of deeds, all to 
 constitute one deed, see Deed. 
 
 In English Law. The certificate of dis- 
 charge given to an insolvent debtor who takes 
 the benefit of the act for the relief of in- 
 solvent debtors. 
 
 DUPLICATIO (Lat. a doubling). The de- 
 fendant's second answer; that is, the answer 
 to the plaintiff's replication. 
 
 DUPLICATUM JUS (Lat. a twofold or 
 double right). Words which signify the same 
 as dreit dreit, or droit droit, and which are 
 applied to a writ of right, patent, and such
 
 DUPLICATUM JUS 
 
 959 
 
 Dll'LI- II V 
 
 other writs of right as are of the same na- 
 ture, and do as it were How from it as the 
 writ of right Booth, Real Act 87. 
 
 DUPLICITY (Lat. duplets, twofold; dou- 
 ble). The union of more than one cause of 
 action in one count in a writ, or more than 
 oim' defence in one plea, or more than u 
 single breacb in a replication. Jackson v. 
 Rundlet, l W. & M. 381, Fed. <'as. No. T.i 15. 
 
 The union of several facts constituting 
 together but one cause of a< lion, or one de- 
 fence, or one breach, doe- not constitute <lu- 
 plicity; Torrey v. Field, 10 vt. 353; Harker 
 v. Brink, 24 N. J. 1,. :;::::; Holland v. KIbbe, 
 10 ill. 133; Beckley v. Moore, l McCord (S. 
 0.) fM ; State v. Bank, :::: .Mis. !7i ; Gulf, 
 C. & s. F. Ry. Co. v. Bnford, :i Tex. Civ. 
 App. 115, 21 s. w. 272; state v. Chri 
 101 N. C. 749, S S. B. 361; Merriman v. 
 Mach. Co., mi Wis. ni^, 56 x. w. 743; state 
 v. Warren, 77 Md. 121, 26 A 1 1 . 500, 39 Am. 
 St. Rep. 101; Tracy V Com., S7 Ky. 578, « 
 S. W. 822. Though the joinder of two or 
 more distinct offences in one count of au in- 
 dictment is faulty, yet where the acts im- 
 puted are component parts of the same of- 
 fence the pleading is not objectionable for 
 duplicity; Farrell v. State, 54 X. J. L. 410, 
 L' 1 Atl. Ti'o ; nor is it where one of the two 
 offences charged is insutliciently set out; 
 State v. Ilenn, 39 Minn. 470, 40 X. W. £72. 
 It must be of causes on which the party re- 
 lies, and not merely matter introduced in 
 explanation; Dunning v. Owen, 14 Mass. 
 157. In trespass it is not duplicity to plead 
 to part and justify or confess as to the resi- 
 due; Parker v. Parker, 17 Pick. (Mass.i 236. 
 If only one defence be valid, the objection of 
 duplicity is not sustained ; Porter v. Brack- 
 enridge, 2 Blackf. (Ind.) 385. 
 
 It may exist in any part of the pleadings; 
 the declaration; Morse v. Eaton, -.'; X. H. 
 415; Jarman v. Windsor, 2 Ilarr. (Del.) 102; 
 pleas; Welch v. Jamison, 1 How. (Miss.) 100; 
 replication; Benner v. Elliott, 5 Blackf. 
 (Ind.) 451; Calhoun v. Wright, 3 Scam. (111.) 
 74; Bennett v. Martin, Mo. 400; or sul 'se- 
 quent pleadings; Tebbets v. Tilton, 24 X. 
 II. 120; United states v. Gurney, 1 Wash. C. 
 C. 440, Fed. Cas. No. 15.271; and was at 
 common law a fatal delect; Robinson v. 
 Rice, 20 Mo. 229; to be reached on demurrer 
 only; Cunningham v. Smith, 10 Gratt i\'a.> 
 255, 60 Am. Dec 333; King v. Howard, 1 
 Cnsh. (Mass.) 137; Gardiner v. Miles. :. Gill 
 (Md.) 91; Benner v. Elliott, 5 Blackf. (Ind.) 
 451; People v. Clement. 4 Gal. I'nrep. 493, 
 35 Pac. 1022. The rules against duplicity 
 did not extend to dilatory pleas SO as to pre- 
 vent the use of the various classes in their 
 proper order; Co. Pitt. 301a; Steph. PL 
 App. n. 56. 
 
 Owing to the statutory changes in the 
 forms of pleading, duplicity seems to he no 
 longer a defect in many of the states, either 
 
 in declarations; Bla o, 18 
 
 : King v. Howard, 1 ( 
 (Mass.) 137; Bryan v. Bnford, 7 J. J. Marsh. 
 (Ky.) 335; or replica! m »r \. l ■ 
 
 8 Ind. 96 ; thou 
 
 only in the n of the COUTt, for the 
 
 furtherance of jusl I 
 
 it is too late after verdict ti bo du- 
 
 plicity in an Information for a 
 
 v. Arm8ti ■ w. 
 
 604, 13 L. K. A. 419, 27 Am. St. B 
 
 DURANTE ABSENTIA. 
 
 AM) AOMIMM B . 
 
 DURANTE BENE PLACIT0 (Lat). Dur- 
 ■ 1 pleasure The ancient tern:. 
 English Judges was dut at 
 
 asure of the I I Bla. 
 
 Com. 267, 342. 
 
 DURANTE MIN0RE >ETATE < 
 Inning the minority. An infant can i 
 into no contracts during his minority, . 
 
 for his benefit if he should be aiH 
 pointed an executor, administration of the 
 estate win i i. durante mu 
 
 to another person. 2 Bouvier, Lust n. 1555 
 
 DURANTE VIDUITATE (Lat). During 
 
 widowhood. 
 
 DURATION. Extent, limit or time. Peo- 
 ple v. Hill, 7 Cal. 102. 
 
 DURBAR, in India, a curt, audiei 
 
 levee. 
 
 DURESS. Personal restraint, or fear of 
 personal injury or Imprisonment Haa 
 v. Donaldson, 2 Mete. (Ky.) 445. 
 
 Duress of imprisonment exists whi 
 man actually loses his liberty. If a man 
 be illegally deprived of his liberty until lu> 
 sign and seal a bond, or the like, he may al- 
 lege this duress and avoid the bond; Heaps 
 v. Dunham. 9.1 111. Gs.". ; Rollins v. I. 
 74 Me. 218; Guilleaume v. Rowe, 94 N. V. 
 268, 40 Am. Rep. 111. But if a man I 
 gaily imprisoned, and. either to procure his 
 discharge, or on any other fair account 
 a bond or a deed, this is not by dui 
 imprisonment, ami he is not at liberty to 
 avoid it; Co. 2d Inst. 482; Eddy v. Berrin, 
 17 Me. 338, 35 Am. Dec 261 : Blast 
 Montesanto, 61 Conn, 50, 23 At 1. 714, 29 
 Am. St. Rep. 170. Where the proceed! 
 law are a mere pretext, the Instrument may 
 be avoided ; Aleyn 92; 1 Bla. Gem. 136. 
 
 Duress per mums, which is either for fear 
 of loss of life, or else for fear of mayhem 
 or loss of limb, must be upon a sir 
 reason; 1 Bla. Com. KM. In this Cfl 
 man may avoid his own act Coke enumer- 
 ates four Instances in which a man may 
 avoid his own ad by reason of mei 
 fear of lost of life; of member; of ma 
 of imprisonment; Co. 2d inst 483; 2 Rolle, 
 Ai.r. 124; Bac. Ai>r. Duress, Murder, A: 2 
 i.d. Raym. 1578; Savigny, l>r. Rom. § 114;
 
 DURESS 
 
 9G0 
 
 DURESS 
 
 Motz v. Mitchell, 91 Pa. 114 ; Brown v. Pierce, 
 7 Wall. (U. S.) 205, 19 L. Ed. 134. 
 
 It has been held that restraint of goods 
 under circumstances of hardship will avoid 
 a contract; Collins v. Westbury, 2 Bay (S. 
 O.) 211, 1 Am. Dec. 643; Spaids v. Barrett, 
 57 111. 2S9, 11 Am. Rep. 10 ; Radich v. Hutch- 
 ins, 95 U. S. 210, 24 L. Ed. 409; 11 Exch. 
 878. But see Hazelrigg v. Donaldson, 2 
 Mete. (Ky.) 445 ; Maisonnaire v. Keating, 2 
 Gall. 337, Fed. Cas. No. 8,978; Block v. U. 
 S., S Ct. CI. 461 ; Lehman v. Shackleford, 50 
 Ala. 437. 
 
 The duress to avoid a deed is that which 
 compels the grantor to do what he would not 
 do voluntarily; Savage v. Savage, 80 Me. 
 472, 15 Atl. 43 ; Hackley v. Headley, 45 Mich. 
 569, 8 N. W. 511; Griffith v. Sitgreaves, 90 
 Pa. 161. If a contract is made under duress 
 and subsequently ratified, it becomes valid; 
 Ferrari v. Board of Health, 24 Fla. 390, 5 
 South. 1 ; Belote v. Henderson, 5 Coldw. 
 (Tenn.) 471, 98 Am. Dec. 432. 
 
 The violence or threats must be such as 
 are calculated to operate on a person of or- 
 dinary firmness and inspire a just fear of 
 great injury to person, reputation, or for- 
 tune. See Seymour v. Prescott, 69 Me. 376 ; 
 McClair v. Wilson, 18 Colo. 82, 31 Pac. 502; 
 Bosley v. Shanner, 26 Ark. 2S0 ; Mollere v. 
 Harp, 36 La. Ann. 471. The resisting power 
 which any man is bound to exercise for his 
 own protection was measured, in the com- 
 mon law, by the standard of a man of cour- 
 age, as a part of the law itself ; Galusha v. 
 Sherman, 105 Wis. 263, 81 N. W. 495, 47 L. 
 R. A. 417. There is no legal standard of re- 
 sistance which a person acted upon must 
 come up to at his peril of being remediless. 
 The question in each case is: Was the person 
 so acted upon by threats of the person claim- 
 ing the benefit of the contract, for the pur- 
 poses of obtaining it, as to be bereft of the 
 quality of mind essential to the making of 
 a contract, and was the contract thereby ob- 
 tained ; Galusha v. Sherman, 105 Wis. '263, 
 
 81 N. W. 495, 47 L. R. A. 417. The age, sex, 
 state of health, temper, and disposition of 
 the party, and other circumstances calculated 
 to give greater or less effect to the violence 
 of threats, must be taken into consideration; 
 1 Ky. L. Rep. 137; Parmentier v. Pater, 13 
 Or. 121, 9 Pac. 59; U. S. v. Huckabee, 16 
 Wall. (U. S.) 432, 21 L. Ed. 457. 
 
 Violence or threats will amount to' duress 
 not only where they are exercised on the 
 contracting party, but when the wife, the 
 husband, or children of the party are the ob- 
 ject of them; Eadie v. Slimmon, 26 N. Y. 12, 
 
 82 Am. Dec. 395; Harris v. Carmody, 131 
 Mass. 51, 41 Am. Rep. 1SS. The defence was 
 sustained where a father was coerced into 
 executing a mortgage to secure restitution of 
 his son's defalcation by threats of prosecu- 
 tion ; Williamson, Halsell, Frazier Co. v. 
 Ackerman, 77 Kan. 502, 94 Pac. 807, 20 L. R. 
 
 A. (N. S.) 4S4 ; McCormick Harvesting Mach. 
 Co. v. Hamilton, 73 Wis. 486, 41 N. W. 727 ; 
 Bryant v. Peck & Whipple Co., 154 Mass. 
 460, 2S N. E. 678; where a father gave a 
 note to avoid prosecution of his son and 
 son-in-law ; Folmar v. Siler, 132 Ala. 297, 31 
 South. 719; National Bank of Oxford v. 
 Kirk, 90 Pa. 49 ; where a wife gave a note 
 and mortgage to prevent prosecution of her 
 husband, he being already under arrest; 
 Jones v. Dannenberg Co., 112 Ga. 426, 37 N. 
 E. 729, 52 L. R. A. 271 (even though the 
 note was in the hands of a hona fide holder, 
 etc.); Harris v. Webb, 101 Ga. 84, 28 S. E. 
 G20 ; but not, where a son-in-law was threat- 
 ened with prosecution, the father-in-law, 
 with deliberation, gave his notes and agreed 
 with his daughter that they should constitute 
 an advancement ; Loud v. Hamilton (Tenn.) 
 51 S. W. 140, 45 L. R. A. 400; or where a 
 mortgage was given to stop a threatened 
 prosecution of the mortgagor's husband, but 
 no promise was given not to prosecute ; Moy- 
 er v. Dodson, 212 Pa. 344, 61 Atl. 937; or 
 where one agreed not to prosecute his agent 
 if he would make restitution of his em- 
 bezzled funds; Allen v. Dunham, 92 Tenn. 
 257, 21 S. W. 898. 
 
 If the violence used be only a legal con- 
 straint, or the threats only of doing that 
 which the party using them had a right to do, 
 they shall not invalidate the contract. A 
 just and legal imprisonment, or threats of 
 any measure authorized by law and the cir- 
 cumstances of the case, are of this descrip- 
 tion. See Norris, Peake's Ev. 440, and the 
 cases cited ; also, Watkins v. Baird, 6 Mass. 
 506, 4 Am. Dec. 170; Thorn v. Pinkham, 
 84 Me. 103, 24 Atl. 718, 30 Am. St. Rep. 335 ; 
 Hilborn v. Bucknam, 78 Me. 4S2, 7 Atl. 272, 
 57 Am. Rep. 816. A man lawfully arrested 
 on a warrant for seduction, who, to procure 
 his discharge marries the woman, cannot 
 have the marriage declared void ; Marvin 
 v. Marvin, 52 Ark. 425, 12 S. W. 875, 20 Am. 
 St. Rep. 191; Lacoste v. Guidroz, 47 La. Ann. 
 295, 16 South. 836 ; Johns v. Johns, 44 Tex. 
 40; Williams v. State, 44 Ala. 24; Sickles 
 v. Carson, 26 N. J. Eq. 440 ; Blankenmiester 
 v. Blankenmiester, 106 Mo. App. 390, 80 S. 
 W. 706 ; Griffin v. Griffin, 130 Ga. 527, 61 S. 
 E. 16, 16 L. R. A. (N. S.) 937, 14 Ann. Cas. 
 866. A marriage between cousins, upon the 
 threat of the man that if the woman would 
 not marry him he would blow out his brains, 
 would not be set aside, where the woman 
 went through the marriage ceremony with- 
 out any sign of unwillingness, though the 
 marriage was never consummated, and the 
 man admitted that he had only married her 
 for her money, and she was of a weak char- 
 acter; [1891] P. 369. To constitute duress 
 which will be regarded as sufficient to make 
 a payment involuntary there must be some 
 actual or threatened exercise of power pos- 
 sessed or believed to be possessed by the
 
 DURESS 
 
 9G1 
 
 DURESS 
 
 party exacting the payment over the person 
 or property of another, for which the latter 
 has no other means of Immediate relief than 
 by making the payment ; Radlch v. Hutch- 
 Ins, 95 U. S. 210, 24 L. Ed. 409. There is no 
 ironclad rule which confines an Involuntary 
 payment to cases of duress. Money com- 
 pulsorily paid to prevent an injury to one's 
 property rights comes within the same prin- 
 ciple; Buckley v. Mayor, 30 App. Div. 463, ~>- 
 N. Y. Supp. 452. One who negotiates a loan 
 to take up an existing mortgage upon which 
 foreclosure proceedings have been begun, and 
 who is required under protest to pay an il- 
 legal bonus to secure a discharge of the mort- 
 gage, acts under duress in so doing, and can 
 recover the amount paid; Kilpatrick v. Ins. 
 Co., 1S3 N. Y. 1G3, 75 X. E. 1124, 2 L. R. A. 
 (N. S.) 574, 110 Am. St Rep. 722. 
 
 As to other contracts it is said that threats 
 of imprisonment, to constitute duress, must 
 be of unlawful Imprisonment. But the ques- 
 timi is whether the threat is of imprisonment 
 which will be unlawful in reference to the 
 conduct of the threatener. Imprisonment 
 that is suffered through the execution of a 
 threat which was made for the purpose of 
 forcing a guilty person to enter into a con- 
 tract may be lawful as against the authori- 
 ties and the public, but unlawful as against 
 the threatener, when considered in reference 
 to his effort to use for his private benefit 
 processes provided for the protection of the 
 public. One who has overcome the will of 
 another for his own advantage, under such 
 circumstances, is guilty of a perversion and 
 abuse of laws which were made for another 
 purpose, and he is in no position to claim the 
 advantage of a formal contract obtained in 
 that way, on the ground that the rights of 
 the parties are to be determined by their 
 language and their overt acts, without ref- 
 erence to the influences which moved them ; 
 Morse v. Woodworth, 155 Mass. 233, 27 X. E. 
 1010, 29 X. E. 525; Burton v. Mc.Mii.au. 52 
 Fla. 4(10, VI South. 849, 8 L. R. A. (N. S.) 991, 
 120 Am. St. Rep. 220, 11 Ann. Cas. 380 ; Gor- 
 ringe v. Reed, 23 Utah, 120, 63 Pac. 902, 90 
 Am. St Rep. 692; Hargreaves v. Korcek, 44 
 Neb. 660, 62 X. W. 1086; and to the same ef- 
 fect, Lomerson v. Johnston, 44 X. J. Eq. 93, 
 13 Atl. 8; Coffman v. Bank, 5 Lea (Teun.) 
 232, 40 Am. Rep. 31; Bell v. Campbell, 123 
 Mo. 1, 25 S. W. 359, 15 Am. St. Rep 
 Heatou v. Bank, 59 Kan. 281, 52 Pac. 876. 
 
 In the early common law. duress, strictly 
 so called, was a matter of law. It was 
 pleadable as a defence or as material to a 
 cause of action, by alleging the existence of 
 specific circumstances legally sullicient to 
 constitute duress. Oppression of one person 
 by" another, causing such person to surrender 
 something of value to another, not amount- 
 ing to duress within the rigorous rules of 
 law. regardless of whether the oppression ac- 
 tually deprived the oppressed party of the 
 Bouv.-61 
 
 exercise of his free will, was remediless ex- 
 cept by an appeal to equity, where a remedy 
 was obtainable on the ground of unlawful 
 compulsion; Galusha v. Sherman, 105 Wis. 
 263, 81 N. W. 495, !7 L. K. A. 417, where it is 
 said that the real foundation principle of 
 duress is that it is the condition of mind of 
 the wronged person at the time of the act 
 sought to be avoided, not the means by which 
 such a condition was produced. In its broad 
 sense duress is now said to include all in- 
 stances where a condition of mind of a p 
 son caused by fear of personal injury or 1' 
 of limb, or injury to such person's property, 
 wife. Child, or husband, is produced by the 
 wrongful conduct of another, rendering such 
 person incompetent to contract with the ex- 
 ercise of his free will power: Williamson v. 
 erman, 77 Kan. 502, 94 Pac. 807, 20 L, 
 ft A. (X. S.) 484, whether formerly re- 
 lievable at law on the ground of duress or 
 in equity on the ground of wrongful compul- 
 sion ; Galusha v. Sherman, 105 Wis. 263, 81 
 X. W. 495, -17 L. R. A. 117. 
 
 Threats of unlawful imprisonment are not 
 necessary to constitute duress. It was never 
 contemplated in the law that either the 
 actual use or misuse of criminal process, 
 lccral or illegal, should be resorted to for the 
 purpose of compelling the payment of a mere 
 debt, or to coerce the making of contracts. 
 Ample civil remedies are afforded in the law 
 to enforce the payment of debts and the per- 
 formance of contracts; but the criminal law 
 and the machinery for its enforcement have 
 a wholly different purpose and cannot be em- 
 ployed to interfere with that wise and just 
 policy of the law that all contracts and 
 agreements shall be founded upon the exer- 
 cise of the free will of the parties, which is 
 the real essence of all contracts; Hartford 
 Fire Ins. Co. v. Kirkpatrick, Dunn & Co., 
 Ill Ala. 456, 20 South. 651; Adams v. Bank. 
 116 N. Y. 600, L 1 :; X. E. 7, 6 L. R. A. 491, 15 
 Am. St. Rep. 447; Henry v. Bank, 131 la 
 97, 107 X. W. 1034; Williamson. Halsell 
 Frazier Co. v. Ackerman, 77 Kan. 502, 94 
 Pac. 807. 20 I.. R. A\ l.V s.) 484; Burl 
 .McMillan, 52 Fla. 22S, 42 South. S79, 11 L. 
 R. A. (X. S.) 159. 
 
 Excessive charges paid to railroad com- 
 panies refusiug to carry or deliver goods, un- 
 less these payments were made voluntarily, 
 have been recovered on the ground of d = . 
 27 L. J. Ch. 137; 32 id. 225; 30 L. J. I 
 361 ; 2S id. 169. Where the carrier refuses 
 to transport stock until a special contract is 
 signed limiting its liability, it does not bind 
 the shipper; Atchison, T. & S. F. R. Co. v. 
 Dill. 48 Kan. 2P>. 29 Pac. 148. 
 
 Where, in addition to money penaltn 
 delay in payment of a tax. there is forfeiture 
 of the right to do business and risk of hav- 
 ing contracts declared illegal for non-pay- 
 ment thereof, payment is made under duress. 
 "Courts sometimes perhaps have been a little 
 too slow to recognize the implied duress und«>r
 
 DURESS 
 
 9G2 
 
 DWELLING-HOUSE 
 
 which payment is made" of taxes; Atchison, 
 T. & S. F. Ry. Co. v. O'Connor, 223 U. S. 280, 
 32 Sup. Ct. 216, 56 L. Ed. 436, Ann. Cas. 
 1913C, 1050; Gaar, Scott & Co. v. Shannon, 
 223 U. S. 468, 32 Sup. Ct. 236, 56 L. Ed. 510. 
 
 The burden of proving duress is on the 
 party alleging it; Horton v. Bloedorn, 37 
 Neb. 066, 56 N. W. 321. 
 
 There is said to be some conflict in the 
 authorities upon the question whether the 
 defence of duress by threats can be success- 
 fully urged against a bona fide holder for 
 value of negotiable paper, and that the bet- 
 ter opinion and weight of authority is that 
 such defence stands upon the same footing as 
 other defences wnich may be made as be- 
 tween the original parties, but is cut off 
 when the paper reaches the hands of a bona 
 fide holder ; Fairbanks v. Snow, 145 Mass. 
 153, 13 N. E. 596, 1 Am. St. Rep. 446 ; Farm- 
 ers' Bank of Grand Rapids v. Butler, 48 
 Mich. 192, 12 N. W. 36; Clark v. Pease, 41 
 N. H. 414; Beals v. Neddo, 2 Fed. 41, 1 Mc- 
 Crary 206. If such a contract be simply a 
 voidable one, then it follows naturally that, 
 when the contract consists of negotiable pa- 
 per, the defence is cut off by transfer to a 
 bona fide purchaser before maturity, in the 
 same manner that other defences upon the 
 ground of fraud are cut off ; Mack v. Prang, 
 104 Wis. 1, 79 N. W. 770, 45 L. R. A. 407, 76 
 Am. St. Rep. 848. Is a defense to all save 
 the gravest crimes, and one cannot, under 
 compulsion kill another person, even in order 
 to save his own life; 8 C. & P. 616. 
 
 DURHAM. See County Palatine. 
 
 DURSLEY. In Old English Law. Blows 
 without wounding or bloodshed; dry blows. 
 Blount. 
 
 DUTIES. In its most enlarged sense, this 
 word is nearly equivalent to taxes ; State v. 
 Telegraph Co., 73 Me. 518; Blake v. People, 
 109 111. 504; embracing all impositions or 
 charges levied on persons or things ; in its 
 more restrained sense, it is often used as 
 equivalent to customs, or imposts. Story, 
 Const. § 949. In common use, an indirect 
 tax imposed on the importation or consump- 
 tion of goods. Pollock v. Trust Co., 158 U. S. 
 601, 15 Sup. Ct. 912, 39 L. Ed. 1108. 
 
 DUTY. A human action which is exactly 
 conformable to the laws which require us to 
 obey them. 
 
 That which is right or due from one to 
 another. A moral obligation or responsi- 
 bility. 
 
 It differs from a legal obligation, because a duty 
 cannot always be enforced by the law: it is our 
 duty, for example, to be temperate in eating, but we 
 are under no legal obligation to be so ; we ought to 
 love our neighbors, but no law obliges us to love 
 them. 
 
 DWELLING-HOUSE. A building inhab- 
 ited by man. A house usually occupied by 
 the person there residing, and his family. 
 The apartment, building, or cluster of build- 
 
 ings in which a man with his family resides. 
 2 Bish. Cr. Law § 104. 
 
 The importance of an exact signification for this 
 word is often felt in criminal cases ; and yet It is 
 very difficult to frame an exact definition which will 
 apply to all cases. It is said to be equivalent to 
 mansion-house ; Com. v. Pennock, 3 S. & R. (Pa.) 
 199 ; State v. Sutcliffe, 4 Strobh. (S. C.) 372 ; 7 
 Mann. & G. 122. See 14 M. & W. 181 ; 4 C. B. 105 ; 
 Com. v. Posey, 4 Call (Va.) 109, 2 Am. Dec. 560. 
 
 Judge Cooley, in Stearns v. Vincent, 50 
 Mich. 219, 15 N. W. 86, 45 Am. Rep. 37, says 
 that in the law of burglary the dwelling- 
 house is deemed to include whatever is with- 
 in the curtilage, even though not inclosed 
 with the dwelling, if used with it for domes- 
 tic purposes; People v. Taylor, 2 Mich. 250; 
 Pitcher v. People, 16 Mich. 142. 
 
 It must be a permanent structure ; 1 Hale, 
 PI. Cr. 557 ; 1 Russ. Cr. 798 ; must be inhab- 
 ited at the time ; 2 Leach 1018, n. ; State v. 
 Warren, 33 Me. 30; Ex parte Vincent, 26 Ala. 
 145, 62 Am. Dec. 714; Com. v. Barney, 10 
 Cush. (Mass.) 479; People v. Cotteral, 18 
 Johns. (N. Y.) 115; Com. v. Posey, 4 Call 
 (Va.) 109, 2 Am. Dec. 560; Scott v. State, 
 62 Miss. 782. It is sufficient if a part of the 
 structure only be used for an abode; Russ. 
 & R. 185; Stedman v. Crane, 11 Mete. 
 (Mass.) 295; Cole v. State, 9 Tex. 42; 2 B. 
 & P. 508; Dale v. State, 27 Ala. 31. How 
 far a building may be separate is a difficult 
 question ; Com. v. Estabrook, 10 Pick. 
 (Mass.) 293; State v. Langford, 12 N. C. 
 253; Armour v. State, 3 Humphr. (Tenn.) 
 379; State v. Ginns, 1 N. & McC. (S. C.) 583; 
 Com. v. Sanders, 5 Leigh (Va.) 751; People 
 v. Dupree, 98 Mich. 26, 56 N. W. 1046 ; Brace 
 v. Cloutman, 45 N. H. 37, 84 Am. Dec. Ill; 
 Chase v. Ins. Co., 20 N. Y. 52 ; 18 Q. B. 783 ; 
 22 Ir. L. T. Rep. 30; State v. Clark, 89 Mo. 
 430, 1 S. W. 332 ; Davis v. State, 38 Ohio St. 
 506; State v. Mordecai, 68 N. C. 207. 
 
 A suite of rooms in a college of the Uni- 
 versity of Cambridge is a dwelling-house ; 
 L. R. 4 C. P. 539. Six separate tenants occu- 
 pied a house of ten rooms, each having ex- 
 clusive possession of his part of the premis- 
 es and the owner did not reside there. The 
 outer and street door had no lock or bolt 
 and was always kept open. The entry, stair- 
 way, and an ashpit and other conveniences 
 were used in common. Two of the judge* 
 held that each of the six tenants occupied a 
 "dwelling-house," and two held otherwise; 
 L. R. 6 C. P. 327. 
 
 DWELLING-PLACE. See Residence; 
 
 DOMICIL. 
 
 DYING DECLARATIONS. Dying declara- 
 tion of one who did not believe in a Supreme 
 Being are admissible, but are thereby dis- 
 credited. Gambrell v. State, 92 Miss. 728, 
 46 South. 138, 17 L. R. A. (N. S.) 291, 131 
 Am. St. 549, 16 Ann. Cas. 147. See Declara- 
 tion. 
 
 DYING WITHOUT ISSUE. Not having 
 issue living at the death of the decedent.
 
 DYING WITHOUT ISSUE 
 
 9G3 
 
 DYSNOMY 
 
 Van Vechten v. Pearson, 5 Paige, Ch. (N. Y.) 
 514; Fairchild v. Crane, 13 N. J. Eq. 105. 
 In England this is the signification, by stat- 
 utes 7 Will. IV.; 1 Vict. c. 26, § 29. But the 
 old English rule, that the words, when ap- 
 plied to real estate, import an indefinite fail- 
 ure of issue, has been generally adhered to 
 in this country; Den v. Allaire, 20 N. J. L. 
 6; Wilson v. Wilson, 32 Barb. (N. Y.) 328; 
 Wallis v. Woodland, 32 Md. 101. See 2 
 Washb. R. P. 302 ; 4 Kent 273. 
 
 DYNASTY. A succession of kings in the 
 same line or family. 
 
 DYSNOMY. Bad legislation; the enact- 
 ment of bad laws. 
 
 DYSPEPSIA. The group of symptoms re- 
 sulting from alterations in the process of di- 
 gestion due either to functional or organic 
 diseases of the stomach. 
 
 Dyspepsia is not, in general, considered as 
 a disease which tends to shorten life, so as 
 to make a life uninsurable, unless the com- 
 plaint has become organic dyspepsia, or was 
 of such a degree at the time of the insurance 
 as by its excess to tend to shorten life; 4 
 Taunt. 703.
 
 E CO X VERSO 
 
 964 
 
 EARL 
 
 E CON VERSO (Lat). On the other hand; 
 on the contrary. Equivalent to e contra. 
 
 EAGLE. A gold coin of the United States 
 of the value of ten dollars. 
 
 It weighs two hundred and fifty-eight grains of 
 standard fineness ; that is to say, of one thousand 
 parts by weight, nine hundred shall be of pure 
 metal and one hundred of alloy, the alloy consisting 
 of silver and copper. 
 
 The act of February 12, 1873, Rev. Stat. § 3514, fixes 
 the proportion of silver at in no case more than one- 
 tenth of the whole alloy. 
 
 For all sums whatever the eagle is a legal tender 
 for ten dollars. U. S. Rev. Stat. § 3585. 
 
 EALDORMAN (Sax.). A Saxon title of 
 honor. It was a mark of honor very widely 
 applicable, the ealdormen being of various 
 ranks. The chief of them were the rulers 
 almost of provinces. After the Conquest 
 they disappeared and the term earl became 
 a mere title. It is the same as alderman. 
 
 See Seebohm, Tribal Customs; 2 Freeman, 
 Norm. Conq. 51. 
 
 EARLDORMAN. Said to be a false spell- 
 ing for ealdorman. Cent. Diet. But see 2 
 Holdsw. Hist. E. L. 29, giving Earldorman. 
 
 EAR-MARK. A mark put upon a thing 
 for the purpose of distinction. Money in a 
 bag tied and labelled is said to have an ear- 
 mark. 3 Maule & S. 575. 
 
 Also used in equity in respect of property 
 or a fund in the hands of a third party, 
 which is capable of identification as belong- 
 ing to the claimant out of possession. 
 
 The doctrine that money has no ear-mark 
 is no longer law. Property entrusted to a 
 person in a fiduciary capacity may be fol- 
 lowed as long as it may be traced, and where 
 a person holding money as trustee or in a 
 fiduciary character mixed it with his own 
 and draws out of the mixed fund for his 
 own purposes, the court presumes that his 
 own drawings are to come out of his own 
 money ; 13 Ch. D. 696. And see note to this 
 case citing leading English cases in Brett's 
 Lead. Cas. Mod. Eq. 179. 
 
 Where police officers, in arresting bank 
 burglars, took the stolen money from them 
 and claimed to hold it for an assignee of the 
 burglars (their attorney for his services) 
 and for a reward offered, it was held that 
 an indemnity company which had indemni- 
 fied the bank could recover the specific mon- 
 ey from the police officers ; ^Etna Indemnity 
 Co. v. Malone, 89 Neb. 260, 131 N. W. 200. 
 
 EAR-WITNESS. One who attests to 
 things he has heard himself. 
 
 EARL. In English Law. A title of nobili- 
 ty next below a marquis and above a vis- 
 count 
 
 Earls were anciently called comites, because they 
 were wont comitari regem, to wait upon the king 
 for counsel and advice. They were also called 
 shiremen, because each earl had the civil govern- 
 
 ment of a shire. After the Norman conquest they 
 were called counts, whence the shires obtained the 
 names of counties. They have now nothing to do 
 with the government of counties, their duties having 
 devolved on the sheriff, the earl's deputy, or vice- 
 comes. 1 Bla. Com. 398. 
 
 EARL MARSHAL. An officer who former- 
 ly was of great repute in England. He held 
 the court of chivalry alone as a court of 
 honor, and in connection with the lord high 
 constable as a court having criminal juris- 
 diction. 3 Bla. Com. 68 ; 4 id. 268. The du- 
 ties of the office now are restricted to the 
 settlement of matters of form merely. It 
 would appear, from similarity of duties and 
 from the derivation of the title, to be a relic 
 of the ancient office of alderman of all Eng- 
 land. See Coubt of the Eael Mabshal. 
 
 EARL'S PENNY. See Ables. 
 
 EARL'S THIRD PENNY. In the county 
 court and in every hundred court the king 
 was entitled to but two-thirds of the proceeds 
 of justice and the earl got the other third, 
 except perhaps in some exceptional cases. 
 Maitl., Domesday and Beyond 95. 
 
 EARLDOM. The dignity or jurisdiction 
 of an earl. The dignity only remains now, 
 as the jurisdiction has been given over to the 
 sheriff; 1 Bla. Com. 339. 
 
 EARNEST. The payment of a sum of 
 money or delivery of a thing or token, upon 
 the making of a contract for the sale of 
 goods, to bind the bargain, the delivery and 
 acceptance of which marks the final and 
 conclusive assent of both parties to the con- 
 tract. 
 
 The payment of a part of the price of goods sold, 
 or the delivery of part of such goods, for the pur- 
 pose of binding the contract. Howe v. Hayward, 
 108 Mass. 54, 11 Am. Rep. 306. 
 
 It has been stated in a general way that the effect 
 of earnest is to bind the goods sold ; and, upon 
 their being paid for without default, the buyer is 
 entitled to them ; but, notwithstanding the earnest, 
 the money must be paid upon taking away the 
 goods, because no other time for payment is ap- 
 pointed; earnest only binds the bargain, and gives 
 the buyer a right to demand, but a demand without 
 payment of the money is void ; after earnest given, 
 the vendor cannot sell the goods to another without 
 a default In the vendee, and therefore if the latter 
 does not come and pay, and take the goods, the 
 vendor ought to go and request him, and then, if 
 he does not come, pay for the goods, and take them 
 away in convenient time, the agreement is dissolv- 
 ed, and the vendor is at liberty to sell them to any 
 other person; 2 Bla. Com. 447; 2 Kent, Com. 495; 
 2 H. Bla. 316 ; 3 Campb. 426 ; Neil v. Cheves, 1 
 Bailey (S. C.) 537. 
 
 There is great difference of opinion as to the exact 
 definition of this word. It had a signification at 
 common law sufficiently well understood to warrant 
 its use in the statute of frauds of 29 Car. II. § 17, 
 which makes parol sales of goods, etc., void unless 
 there is a delivery, or the buyer "give something 
 In earnest to bind the bargain, or in part payment." 
 
 The Roman law included two kinds of earnest, 
 one being a contract prior to that of sale and in- 
 dependent of it, which was practically the payment 
 of a sum of money for what we should now call an
 
 EARNEST 
 
 9G5 
 
 EAR. 
 
 option to purchase, to be forfeited by the purchaser 
 If he did not buy, while, if the other party was un- 
 willing to sell, he must return the earnest and pay 
 an equal amount as a forfeit. The other kind of 
 earnest was that afterwards found in the common 
 law and might be a thing, usually a ring, which 
 either party, generally the buyer, gave to the other 
 as a token. It is important in reading the civil 
 law on this topic to bear in mind these two classes. 
 Benj. Sales § 195. Justinian changed the law on this 
 subject by providing that either party might re- 
 scind the sale by forfeiting the amount of the ear- 
 nest money ; Inst. 1. 3. 23. 1. At least the text 
 appears to bo susceptible of no other meaning, but 
 Pothier maintains that, after earnest, neither party 
 could avoid the obligation ; In this he is not fol- 
 lowed by the later civilians. The same controversy 
 has arisen upon a similar provision of the French 
 code. The conclusion above stated is that of Ben- 
 jamin, who cites the authorities; Sales, §§ 198-200. 
 
 In Scotland the word arles is used for earnest, 
 and is usually applied to a small sum given to a 
 servant on hiring, as earnest that the wage will be 
 paid. 
 
 The word earnest "has been supposed to flow 
 from a Phoenician source, through the ap'paliuv of the 
 Greeks, the arra or arrha of the Latin, and the 
 arrhes of the French. . . . The general rule ap- 
 pears to have been that expressed in the Institutes 
 III. 23: 'Is qui recusat adimplere contraction, si 
 quidem est emptor, perdit quod dedit : si vero ven- 
 ditor, duplum restitucre compellitur, licet super ar- 
 ris nihil expressum est.' Furthermore, the earnest 
 did not lose that character, because the same thing 
 might also avail as part payment: 'Datur autcin 
 arrha vel simpliciter (says Vinnius, on Inst. III. 24) 
 ut sit argumentum duntaxat et prooatio emptionis 
 contractce, veluti si aimulus dctur ; vcl ut simul 
 postea cedat in partem pretii, data certa pecunia.' 
 From the Roman law the principles relating to the 
 earnest appear to have passed to the earlier juris- 
 prudence of England: 'Item cum arrarum nomine 
 (says Bracton ii. 27) aliquid datum fuerit ante tra- 
 ditionem, si emptorem emptionis paznituerit, et a 
 contractu resilire voluerit, perdat quod dedit : si 
 autem venditorem, quod arrarum nomine reccperit, 
 emptori restituat duplicatum.' Though the liability 
 of the vendor to return to the purchaser twice the 
 amount of the deposit has long since departed from 
 our law, the passage in question seems an authority 
 for the proposition that the earnest is lost by the 
 party who fails to perform the contract. That ear- 
 nest and part payment are two distinct things is 
 apparent from the 17th section of the statute of 
 frauds, where they are treated as separate acts, 
 each of which is sufficient to give validity to a parol 
 contract." Fry, L. J., in 53 L. J. Ch. 1055, 1061. 
 
 Kent says it is only one mode of binding 
 the bargain, and giving the buyer a right to 
 the goods on payment; 2 Com. 495; it is a 
 token or pledge passing between the parties 
 by way of evidence or ratification of the 
 sale. . . . It is mentioned in the statute 
 of frauds, and in the French code, as an eifi- 
 cient act; but it has fallen into very general 
 disuse in modern times, and seems rather 
 to be suited to the manners of simple and 
 unlettered ages, before the introduction of 
 writing, than to the more precise and accu- 
 rate habits of dealing at the present day. 
 It was omitted in the New York Revised 
 Statutes; id. (14th ed.) 495, n. (b). That it 
 has fallen into disuse is true as to the giving 
 of earnest in its ancient, strict, and techni- 
 cal sense, and its having fallen into disuse 
 has been attributed the tendency to treat 
 earnest and part payment as meaning the 
 same thing, though the language of the stat- 
 
 ute of frauds implies that the former is 
 something to hind the bargain while no part 
 payment can he made until the contract has 
 been closed ; Benj. Sales S 
 
 One definition is: "Specifically, in law, 
 a part of the price rvice bar- 
 
 gained for, which i.s paid at the time of the 
 bargain to evidence the fact that the ; 
 ation has ended in an actual contract 
 Hence it is said to bind the bargain." Cent 
 Diet. And another is: "Something given by 
 a buyer to a seller by way of token <<r 
 to bind the bargain; a part or porti' 
 goods delivered into the possession of the 
 buyer at the time of the sale as a i ledge or 
 security for the complete fulfilment of the 
 contract ; a handsel." Encyc. Diet. And the 
 latter authority illustrates the functi 
 earnest as evidence of the conclusion of the 
 contract by the Scotch law which holds a 
 party who resiles, to fulfil the contract as 
 well as to forfeit the earnest paid. 
 
 It is sometimes said that the question 
 whether the earnest shall count as part of 
 the price or wage depends on the intention 
 of the parties, which, in the absence of di- 
 rect evidence, will be inferred from the pro- 
 portion which it bears to the whole sum. 
 Int. Cyc. "If a shilling be given in the pur- 
 chase of a ship or of a box of diamonds, it 
 is presumed to be given merely in evidence 
 of the bargain, or, in the common way of 
 speaking, is dead earnest ; but if the sum 
 be more considerable it is reckoned up in the 
 price." Ersk. Inst. b. iii. tit. iii. § 5. 
 
 Another writer considers "that the origi- 
 nal view of earnest in England was, that it 
 was a payment of a small portion of the 
 price or wage, in token of the conclusion of 
 the contract; and as this view seems to have 
 been adhered to, the sum, however small, 
 would probably then be counted as a part 
 payment." Sto. Sales 216. 
 
 It has been a mooted question whether at 
 common law either earnest or delivery was 
 necessary to perfect a sale of chattels; in a 
 case where it was objected that hi 
 there was neither, there could not be a re- 
 covery for the breach of a parol contract of 
 sale, it was said : Earnest paid is nut neces- 
 sary to complete a parol contract of sale; 
 when made, it only prevents the vendor, un- 
 der any circumstances, from rescinding the 
 contract without the assent of the vendee: 
 and this by common law, and not by any 
 statute; Ilurlburt v. Simpson, 25 N. C 
 
 It has been much diseussed whether the 
 giving of earnest has any effect to pas^ the 
 title to the property sold; and in earlier 
 cases of the sale of specific chattels it was 
 so held; Shep. Touchst. 221: 5 Term 409; 7 
 East 558; Nov, Max. 87-89; 2 Bla. Com. 447; 
 but see the analysis of these authorities; 
 Benj. Sales § 355. It is said by this learned 
 writer on the subject, that there is no case 
 in which this has been held when a complet-
 
 EARNEST 
 
 9G6 
 
 EARNEST 
 
 ed bargain, if in writing, would not have 
 altered the property ; id. § 357 ; and it is con- 
 cluded that the true legal effect of earnest 
 is simply to afford conclusive evidence of a 
 bargain actually completed with the mutual 
 intention that it should be binding on both ; 
 and whetber the property has passed in such 
 cases is to be tested, not by the fact that 
 earnest was given, but by the true nature of 
 the contract concluded by the giving of earn- 
 est ; id. Hence with respect to the remedy 
 of the seller, if the buyer refuse to take the 
 property sold, the law of earnest, properly 
 speaking, is not concerned ; but it is to be 
 treated as in the case of contracts otherwise 
 legally evidenced. See 2 Kent, Com. Lacey's 
 ed. 496, note 51 ; Sales. 
 
 To constitute earnest to bind the bargain 
 something must be paid or given. An in- 
 stance is reported where, the buyer having 
 drawn a shilling across the palm of the seller 
 and returned it to his own pocket, according 
 to a custom alleged to exist in the north of 
 England, it was held that the statute was 
 not satisfied ; 7 Taunt. 597. This has been 
 said to be the only reported case ; Benj. Sales 
 § 191 ; but it has been held that money left 
 in the hands of a third person as a forfei- 
 ture is not sufficient ; Howe v. Hay ward, 108 
 Mass. 54, 11 Am. Rep. 306; much less a de- 
 posit of a check ; Jennings v. Dunham, 60 
 Mo. App. 635 ; Noakes v. Morey, 30 Ind. 103. 
 The three cases last cited are usually refer- 
 red to in connection with the subject of 
 earnest. In the Massachusetts case, the 
 question was as to the recovery of money de- 
 posited as a forfeiture, which it was argued 
 was earnest to bind the bargain in case of a 
 refusal to take the goods, and the court said 
 that earnest, as used in the statute of frauds, 
 was part payment. On the strength of this 
 case a text-writer on the law of that state 
 adopts the statement as a definition of earn- 
 est; Usher, Sales Per. Prop. § 113. So an 
 authoritative writer on the statute of frauds 
 uses the terms, earnest and part payment, 
 as interchangeable, and discusses the ques- 
 tion of when earnest must be paid mainly 
 upon New York cases, although in that state 
 the exception is confined to part payment, 
 the "giving something in earnest" being 
 omitted ; Reed, Stat. Fr. § 226. While, there- 
 fore, the clear and philosophical definitions 
 of the nature and effect of earnest cited 
 from Benjamin on Sales unquestionably com- 
 mend themselves as better satisfying the ap- 
 parent purpose of the statute to designate 
 two distinct acts, it must be admitted that 
 they are constantly referred to by American 
 courts and writers as alternative expressions 
 of the same thing. Consequently the cases 
 cited in text-books as laying down rules as 
 to earnest are usually found, on examination, 
 to be in fact cases of part payment, and 
 they must be so read. This use of the words, 
 interchangeably, makes unavoidable a refer- 
 ence to the cases just referred to, especially 
 
 since the word earnest, in addition to what 
 has been indicated as its real signification, 
 lias, in this country, certainly, an acquired 
 meaning too general to be disregarded. 
 
 In part payment something having value 
 must pass from the buyer to the seller; 
 16 M. & W. 302; Brand v. Brand, 49 Barb. 
 (N. Y.) 348; an unaccepted tender to the 
 vendor on a call for part payment by him 
 will not suffice to bind him, as when a re- 
 mittance by mail of a check was returned to 
 the sender; Edgerton v. Hodge, 41 Vt. 676; 
 nor the promissory note of the buyer ; Combs 
 v. Bateman, 10 Barb. (N. Y.) 573; Hooker 
 v. Knab, 26 Wis. 511; Krohn v. Bantz, 68 
 Ind. 278 ; even if there were an express 
 agreement that the note should be received 
 as part payment, which in this instance 
 there was not; id.; in this case it was held 
 that the note was not only ineffectual as 
 part payment, but that it could not be re- 
 garded as earnest, sufficient to bind the bar- 
 gain. After referring to the Massachusetts 
 decision, supra, that, as used in the statute 
 of frauds, earnest was regarded as part pay- 
 ment of the price, the court said : "But, 
 conceding that it may be something distinct 
 from payment, it is quite clear that it must 
 have some value. The note has no value 
 whatever, because it had no consideration 
 to support it, and its payment could not, 
 therefore, have been enforced. To say that 
 such a note has value, is but grasping at a 
 shadow, and losing sight of the substance. 
 The contract for the sale of the hogs not 
 being valid, the note given in consideration 
 of the agreement therefor was based upon 
 no valid consideration;" id.; Ely v. Ormsby, 
 12 Barb. (N. Y.) 570. But see 13 M. & W. 
 58; Byles, Bills *386. But when the con- 
 tract was partly performed by compliance 
 with a condition, and a note was tendered 
 for the price, it was considered that the 
 statute was satisfied; Gray v. Payne, 16 
 Barb. (N. Y.) 277. A note of a third person 
 accepted as payment is sufficient; Combs v. 
 Bateman, 10 Barb. (N. Y.) 573; or a check 
 if paid is a payment relating back to the 
 time when given ; Hunter v. Wetsell, 17 Hun 
 (N. Y.) 135; a stipulation that borrowed 
 money owing from the seller to the buyer 
 shall be treated as part payment will avail ; 
 Mattice v. Allen, 33 Barb. (N. Y.) 543; but 
 not an agreement to credit an account due 
 from the seller and send goods for the bal- 
 ance; Galbraith v. Holmes, 15 Ind. App. 
 34, 43 N. E. 575 ; or a promise to pay a part 
 of the purchase money to a creditor of the 
 vendor or credit it in the account against 
 him; Artcher v. Zeh, 5 Hill (N. Y.) 204; 
 but if such debt be actually paid it is good ; 
 2i U. C. Q. B. 340 ; or if accepting the prom- 
 ise the creditor discharge the vendor ; Cot- 
 terill v. Stevens, 10 Wis. 425 ; but the pay- 
 ment must be made at the time of the agree- 
 ment; Paine v. Fulton, 34 Wis. 83; and if 
 there was no entry in the account stating
 
 EARNEST 
 
 967 
 
 EARNINGS 
 
 that the credit was given on account of the 
 transactions in suit it was insufficient ; Teed 
 v. Teed, 44 Barb. (N. Y.) 9G. A hut.- agree- 
 ment that the price shall go in settlement 
 of an existing account is not sufficient with- 
 out more; Brabin v. Hyde, 30 Barb. (N. Y. I 
 265; 1G M. & W. 302; 16 L. J. Ex. 120; nor 
 is an agreement to sell one article and take 
 another in part payment; Chapin v. Potter, 
 1 Hilt (N. Y.) 3GG. Part payment may be 
 by the actual delivery of anything of value, 
 as a chattel; Dow v. Worthen, 37 Vt. 10S; 
 but a delivery of goods must be sufficient 
 within the statute of frauds if they were in 
 litigation; Walrath v. Ingles, G4 Barb. (N. 
 Y.) 27.-.. 
 
 With respect to the time at which part 
 payment must be made, it is in some states 
 required to be at the time of making the 
 contract; Crosby Hardwood Co. v. Tester, 
 90 Wis. 412, G3 N. W. 1057. It was so held 
 in New York ; Sprague v. Blake, 20 Wend. 
 (N. Y.) G3; though in a later case the ques- 
 tion was raised and not determined; Haw- 
 ley v. Keeler, 53 N. Y. 119; the same day is 
 sufficient; Brabin v. Hyde, 30 Barb. (N. Y.) 
 2G5; and so was a payment asked and re- 
 ceived on the following day, the contract be- 
 ing held to be then made for the first time; 
 Bissell v. Balcom, 39 N. Y. 2S1. And when 
 a check is given and paid upon presentation 
 it is a payment at the time ; Hunter v. Wet- 
 sell, S4 N. Y. 549, 38 Am. Rep. 544; so also a 
 check upon a deposit in bank ; McLure v. 
 Sherman, 70 Fed. 190. In some cases it has 
 been held that payment is not so restricted ; 
 7 U. C. C. P. 133; Thompson v. Alger, 12 
 Mete. (Mass.) 435; Davis v. Moore, 13 Me. 
 424; Gault v. Brown, 4S N. H. 189, 2 Am. 
 Rep. 210. It is to be observed that this ques- 
 tion of time arises with more frequency un- 
 der the New York statute which does not 
 provide for earnest eo nomine, but only for 
 part payment "at the time," as does also the 
 Wisconsin statute. 
 
 See Benjamin; Blackburn; Story, Sales; 
 Browne; Reed, Statute of Frauds; Frauds, 
 Statute of ; Sales ; God's Penny. 
 
 EARNINGS. The word has been used to 
 denote a larger class of credits than would 
 be included in the term wages. Jenks v. 
 Dyer, 102 Mass. 235; Somers v. Keliher, 115 
 Mass. 1G5. See Jason v. Antone, 131 Mass. 
 534. It also means gains derived from serv- 
 ices or labor without the aid of capital. 
 Brown v. Hcbard, 20 Wis. 330, 91 Am. Dec. 
 408. 
 
 Surplus earnings is an amount owned by 
 a company, over and above the capital and 
 actual liabilities. People v. Board of Com'rs, 
 76 N. Y. 74. 
 
 Net earnings, generally speaking, are the 
 excess of the gross earnings over the ex- 
 penditures defrayed in producing them, aside 
 from, and exclusive of, the expenditure of 
 capital laid out in constructing and equip- 
 
 ping the works themselves. Union Pac. R. 
 Co. v. U. 8., 99 r j74. 
 
 They include "tips"; [1908] 1 K. L 
 See Dividends. 
 
 EARTH. Clay, gravel, loam and the like, 
 in distinction from the firm rock. The term 
 also Includes hard pan, which is a hard stra- 
 tum Of earth. Dickinson v. City of Pough- 
 keepsie, 75 N. Y. 7G. 
 
 EASEMENT. A riirht in the owner of one 
 parcel of land, by reason of such ownership, 
 
 to use the land of another for a spe< ial pur- 
 pose nol Inconsistent with a general proper- 
 ty in the owner. 2 Washb. R. P. 25; Clark 
 v. Glidden, GO Vt 702, 15 Atl. 358. 
 
 A privilege which the owner of one ad- 
 jacent tenement hath of another, existing in 
 t of their several tenements, by which 
 that owner against whose tenement the priv- 
 ilege exists is obliged to suffer or not to do 
 something on or in regard to his own land 
 for the advantage of him in whose land the 
 privilege exists. Termes de In Ley, Ease- 
 ments; Downing v. Baldwin, 1 S. & R. (Pa.) 
 298; 3 B. & C. 339; Lawton v. Rivers. 2 
 M'Cord (S. C.) 451, 13 Am. Dec. 711: 
 v. Low, 3 Pick. (Mass.1 408; Fortes v. Bal- 
 enseifer, 74 111. 1S3; Oliver v. Hook, 47 Md. 
 301; Strong v. Wales. 50 Yt. 361 ; Howell v. 
 Estes, 71 Tex. 690, 12 S. W. 62; Koenigs v. 
 Jung. 73 Wis. 178, 40 N. W. 801. 
 
 Although the terms are sometimes used as 
 if convertible, properly speaking eas\ 
 refers to the right enjoyed by one and servi- 
 tude the burden imposed upon the other. 
 
 An interest in land created by grant or 
 agreement, express or implied, which con- 
 fers a right upon the owner thereof to some 
 profit, benefit, dominion, or lawful use out 
 of or over the estate of another. Huyck v. 
 Andrews, 113 N. Y. 81, 20 N. E. 581, 3 L. R. 
 A. 7S9, 10 Am. St. Rep. 432. 
 
 In the civil law, the land against which the privi- 
 lege exists is called the servient tenement : Its pro- 
 prietor, the servient owner; he in whose favor it 
 exists, the dominant owner ; his land, the dominant 
 tenement. And, as these rights are not personal 
 and do not change with the persons who may own 
 the respective estates, it is very common to per- 
 sonify the estates as themselves owning or enjoying 
 the easements; Wolfe v. Frost, 4 Sandf. Ch. (X. 
 Y.) 72; Hills v. Miller, 3 Paige, Ch. (N. Y.) 254, 24 
 Am. Dec. 21S ; Boston Water Power Co. v. R. Co., 
 16 Pick. (Mass.) 622. 
 
 There are said to be in England five differ- 
 ent classes of rights which one man may 
 have over the land of another: Easements, 
 profits it prendre, personal licenses, custom- 
 ary rights, and natural rights. Odgers 0. L 
 5G1. This classification is apparently ob- 
 served in the English cases. Of these sub- 
 divisions, profits a prendre and licenses are 
 treated under these titles. "Customary 
 rkiits'* are referred to below. They are 
 more common in England than here "Nat- 
 ural rights'* do not depend upon grant or 
 prescription, but are really incident to prop- 
 erty in laud. Such are the right of lateral
 
 EASEMENT 
 
 968 
 
 EASEMENT 
 
 support to land by adjacent land, the right 
 to the flow of water, and the right to air free 
 from noxious smells. These rights, of course, 
 exist without grant. See Lateral Support ; 
 Riparian Proprietors; Nuisance. 
 
 These distinctions have not always been 
 fully observed in the cases here. The dis- 
 tinction between an ordinary easement and 
 an easement in gross is that in the former 
 there is and in the latter there is not a domi- 
 nant tenement ; Jones, Easements 25. Lord 
 Cairns, L. J., said in Rangeley v. Midland R. 
 Co., L. R. 3 Ch. 311, that there is no such 
 thing in the civil law or in England as an 
 easement in gross — an easement not connect- 
 ed with a dominant tenement. Mr. Jones 
 (Easements 25) states that he uses the term 
 "easement in gross" because it is in general 
 use here by legal writers, judges and the 
 profession, and it is useless to attempt to es- 
 tablish a refinement of definition intended to 
 do away with it. 
 
 On the other hand, Sharswood, C. J., said : 
 "That there may be the grant of an easement 
 in gross personal to the grantee is not to be 
 denied." Tinicum Fishing Co. v. Carter, 61 
 Pa. 21, 38, 100 Am. Dec. 597. To the same 
 effect are 3 Kent 420; Washb. Easem. 8; 
 Fisher v. Fair, 34 S. C. 203, 13 S. E. 470, 14 
 L. R. A. 333, with note citing other cases, in 
 which the statement that "there is no such 
 thing known to the law" as an easement in 
 gross is characterized as a "refinement at- 
 tempted to be established" by Gale (Easem. 
 5) and Goddard (Easem. 6). 
 
 The essential qualities of easements, properly so 
 called, may be thus distinguished: 1. Easements 
 are Incorporeal. 2. They are imposed upon cor- 
 poreal property. 3. They confer no right to a par- 
 ticipation in the profits arising from it. 4. They 
 must be imposed for the benefit of corporeal or 
 incorporeal hereditaments, and are usually imposed 
 for the benefit of corporeal. 5. There must be two 
 distinct tenements— the dominant, to which the right 
 belongs ; and the servient, upon which the obliga- 
 tion is imposed. 6. By the civil law it is also re- 
 quired that the cause must be perpetual. Gale, 
 Easem. (8th ed.) 8. 
 
 Easements in gross are personal, are not 
 assignable, and will not pass by a deed of 
 conveyance ; Washb. Easem. 12 ; Tinicum 
 Fishing Co. v. Carter, Gl Pa. 38, 100 Am. Dec. 
 597; Kuecken v. Voltz, 110 111. 268. See 
 14 L. R. A. 333, n. They are not inheritable ; 
 Wagner v. Hanna, 38 Cal. Ill, 99 Am. Dec. 
 354 ; Hall v. Armstrong, 53 Conn. 554, 4 Atl. 
 113; but in Hankey v. Clark, 110 Mass. 262 ; 
 Poull v. Mockley, 33 Wis. 4S2 ; Lonsdale Co. 
 v. Moies, 21 Law Rep. 658, they are held to 
 be assignable and inheritable. A way is 
 never presumed to be in gross when it can 
 be construed to be appurtenant to the land; 
 French v. Williams, 82 Va. 462, 4 S. E. 591; 
 Cadwalader v. Bailey, 17 R. I. 495, 23 Atl. 
 20, 14 L. R. A. 300. 
 
 Easements are also classified as contin- 
 uous and discontinuous, the distinction be- 
 tween them being thus stated : "Continuous 
 are those of which the enjoyment is, or may 
 
 be, continual, without the necessity of any 
 actual interference by man. Discontinuous 
 are those, the enjoyment of which can be 
 had only by the interference of man, as 
 rights of way, or a right to draw water." 
 Lampman v. Milks, 21 N. Y. 505. Of the 
 former the right to light and air would be 
 an example, of the latter, the right to use a 
 pump; Chase's Bla. Com. 232, note, which 
 see as to Easements generally. 
 
 There must be two tenements owned by 
 distinct proprietors : the dominant, to which 
 the privilege is attached ; the servient, upon 
 which it is imposed. Tudor, Lead. Cas. 108; 
 Grant v. Chase, 17 Mass. 443, 9 Am. Dec. 161 ; 
 Meek v. Breckenridge, 29 Ohio St. 642. 
 
 Easements confer no right to any profits 
 arising from the servient tenement; Waters 
 v. Lilley, 4 Pick. (Mass.) 145, 16 Am. Dec. 
 333 ; 30 E. L. & Eq. 189 ; Pierce v. Keator, 
 70 N. Y. 419, 26 Am. Rep. 612. They are in- 
 corporeal. Like other incorporeal heredita- 
 ments they have been held not to pass with- 
 out a grant ; 3 Kent 434; Orleans Nav. Co. 
 v. New Orleans, 2 Mart. La. (O. S.) 214. 
 They are specifically distinguished from oth- 
 er incorporeal hereditaments by the absence 
 of all right to participate in the profits of 
 the soil charged with them ; Gale, Easem. 
 (8th ed.) 10. 
 
 By the common law, they may be tem- 
 porary; by the civil law, the cause must be 
 perpetual. They impose no duty on the 
 servient owner, except not to change his 
 tenement to the prejudice or destruction of 
 the privilege; Gale, Easem. (8th ed.) 9; 
 Washb. Easem. 5. 
 
 Easements are as various as the exigencies 
 of domestic convenience or the purposes to 
 which buildings and lands may be applied. 
 The following attach to land as incidents or 
 appurtenances, viz. : The right — 
 
 Of pasture on other land ; of fishing in 
 other waters ; of taking game on other land ; 
 of way over other land ; of receiving air, 
 light, or heat from or over other land; of 
 receiving or discharging water over, or hav- 
 ing support to buildings from, other land ; 3 
 E., B. & E. 655; of a right to take ice on a 
 pond ; Hoag v. Place, 93 Mich. 450, 53 N. W. 
 617, 18 L. R. A. 39 ; of going on other land to 
 clear a mill-stream, or repair its banks, or 
 draw water from a spring there, or to do 
 some other act not involving ownership; of 
 carrying on an offensive trade; 2 Bingh. N. 
 C. 134; Dana v. Valentine, 5 Mete. (Mass.) 
 8 ; of burying in a church, or a particular 
 vault ; 8 H. L. Cas. 362 ; 11 Q. B. 666 ; Long 
 v. Weller's Ex'or., 29 Gratt. (Va.) 347; Can- 
 ny v. Andrews, 123 Mass. 155; Central 
 Wharf & Wet Dock Corp. v. India Wharf, 123 
 Mass. 562 ; Onthank v. R. Co., 71 N. Y. 194, 
 27 Am. Rep. 35. See Cemetery/. 
 
 The right to maintain a building or other 
 permanent structure upon the land of an- 
 other cannot be acquired by custom; Attor-
 
 EASEMENT 
 
 969 
 
 EASEMENT 
 
 ney General v. Tarr, 148 Mass. 309, 19 N. E. 
 358, 2 L. R. A. 87. 
 
 Open visible ditches; Thayer v. Payne, 2 
 Cash. (Mass. i 327; McElroy v. McSeay, 71 
 Vt 39G, 45 Atl. 898; SLuyvesant v. Early, 58 
 App. Div. 242, 68 N. Y. Supp. 752; Sander- 
 lin v. Baxter, 76 Va. 299, 4 I Am. Rep. L65; 
 Qulnlan v. Noble, 75 Cal. 250, L7 Pac. 69; a 
 furnace Hue; Ingals v. Plamondon, 75 111. 
 118; an alley way; Cihak v. Klckr, 117 111. 
 643, 7 X. B. Ill; Burns v. Gallagher, 62 
 Md. 4G2; a water flitch and water rights; 
 Cave v. (raits. 53 Cal. 135; rights of way; 
 Ellis v. Bassett, 128 Ind. lis. 27 N. E. ::n. 
 
 25 Am. St. Rep. 421; McTavish v. Carroll, 
 7 Md. 352, t'.l Am. Dec. 353; stairways in a 
 building; Calloway v. Bonesteel, G5 Wis. 79, 
 
 26 N. W. 262, 56 Am. Rep. GIG; Geible v. 
 Smith, 14G Pa. 27G, 23 Atl. 437, 28 Am. St. 
 Rep. 796; a flow of water forced from the 
 vendor's premises through pipes to the prem- 
 ises of the vendee; Toothe v. Bryce, 50 N. 
 J. Eq. 589, 25 Atl. 182 ; a portion of a build- 
 ing projecting upon the land retained by the 
 vendor; X. Y. C. & H. R. R. Co. v. Need- 
 ham. 29 Misc. 435, 61 N. Y. Supp. 992 ; have 
 all been held the subject of implied ease- 
 ments. Rights to a several fishery in the 
 adjoining sea enjoyed by grantees of land 
 and their predecessors in title from time im- 
 memorial were held to pass under a royal 
 patent, though the habendum clause recited 
 that they were to have and to hold "the 
 above granted land." which standing alone 
 might not include a fishing right; Damon v. 
 Hawaii, 194 U. S. 158, 24 Sup. Ct. 617, 48 
 L. Ed. 916, reversing 14 Hawaiian Rep. 465. 
 The fact that the particular method of ex- 
 ercising this alleged right, while prevailing 
 in Hawaii, differed from those known to 
 the common law, was held to make no differ- 
 ence; Carter v. Hawaii, 200 U. S. 255, 26 
 Sup. Ct. 248, 50 L. Ed. 470. 
 
 A covenant to erect and maintain a fence 
 on a railroad, contained in a grant of a right 
 of way, was held to run with the land, be- 
 cause the covenant, gave to the grantee an 
 interest in the nature of an easement in the 
 adjoining land of the grantor ; Bronson v. 
 Coffin, 108 Mass. 175, 11 Am. Rep. 3.">5 ; cited 
 in Joy v. St. Louis, 138 U. S. 1, 11 Sup. Ct. 
 243, 34 L. Ed. S43. An easement may be cre- 
 ated by way of exception or reservation; 
 Claflin v. R. Co., 157 Mass. 489, 32 N. E. G59, 
 20 L. R. A. G3S; and rights in the nature of 
 an easement may be created by statute; At- 
 torney General v. Williams, 174 Mass. 476, 
 55 N. E. 77, where an act restricted the 
 height of buildings bordering on a public 
 square under the power of eminent domain 
 and provided compensation to the abut ling 
 owners. The court said that the act added 
 to the public park rights in light and air 
 and view over adjacent land which were "in 
 the nature of an easement created by the 
 statute and annexed to the park." It was 
 further said "it would be hard to say that 
 
 this statute might not have been passed in 
 the exercise of the police power," but that, 
 in providing compensation, it conformed to 
 ■ of the right of eminent domain. 
 A similar right secured by statute is that of 
 lateral support 
 
 An < of private way over land 
 
 must have a particular, definite line: (.'rosier 
 v. Brown, <;»; W. Va. _:7:;. 66 S. B. 326, 25 L. 
 R. A. (S. S.i 17!. To establish an easement 
 of a private way by prescription, th< 
 must be continuous and uninterrupted under 
 a bona fide claim of right adverse to the 
 owner of the land and with his kno. 
 and silence. If the use is by his pern I 
 or if he denies the right, the title does not 
 accrue; id.; verbal protests against the use 
 prevent its accruing; Reid v. Garnett, l"i 
 Va. 47, 43 S. E. 182; but it is held that 
 mere verbal denial by the owner does nol 
 tend to prove that the enjoyment of the way 
 was interrupted or had been under the own 
 er's license; Okeson v. Patterson, 29 Pa. '-"-'■ 
 See 25 L. R. A. (N. S.) 174, note. 
 
 Mere knowledge by a railway company 
 that the public and an adjoining owner are 
 passing over its right of way will not create 
 a right of way, especially when the company 
 erects signs notifying the public that it Is 
 railroad property ; Andries v. Ry. Co., 105 
 Mich. 557, 63 N. W. 526. 
 
 Forbidding an adjoining owner from us- 
 ing a way over his land and beginning to 
 put up a fence will not in law prevent such 
 adjoining owner from acquiring a right of 
 way, when the latter with threats prevented 
 the erection of a fence and the owner took 
 no proceedings to establish his rights; Con- 
 nor v. Sullivan, 40 Conn. 2G, 1G Am. Rep. 10. 
 
 Some of these are affirmative or positive. 
 — i. e., authorizing the commission of acts 
 on the lands of another actually injurious 
 to it; as, a right of way, — or negatlvi 
 ing only consequentially injurious; as, for- 
 bidding the owner from building to the ob- 
 struction of light to the dominant tenement. 
 Tudor, Lead. Cas. 107; 2 Washb. R. P. 26 
 
 All easements must originate in a grant 
 or agreement, express or implied, of the 
 owner of the servient tenement; Huyck v. 
 Andrews, 113 N. Y. 81, 20 N. E. 581, 3 I.. R. 
 A. 7S9, 10 Am. St Rep. 432. The evidence 
 of their existence, by the common law, may 
 be by proof of the agreement itself, or by 
 prescription, requiring an uninterrupted en- 
 joyment lmmemorlally, or for upwards of 
 twenty years, to the extent of the easement 
 claimed, from which a grant Is implied. A 
 negative easement does not admit of posses- 
 sion; and. by the Civil law. it cannot be ac 
 quired by prescription, and can only be prov- 
 ed by grant. Use, therefore, is not essential 
 to its existence; Gale. Easem. 2:\, 81, 128; 
 2 l'la. Coin. 263. An easement can only be 
 created by a conveyance under seal or by 
 long user, from which such conveyance is 
 presumed; Cagle v. Parker, 97 N. C. 271, 2
 
 EASEMENT 
 
 970 
 
 EASEMENT 
 
 S. E. 76; see Hammond v. Schiff, 100 N. C. 
 161, 6 S. E. 753; or by necessity; Butter- 
 worth v. Crawford, 46 N. Y. 349, 7 Am. Rep. 
 352 ; Cihak v. Klekr, 117 111. 643, 7 N. E. Ill ; 
 and the burden is on one claiming that it 
 was by virtue of a license, to prove that 
 fact; Colburn v. Marsh, 68 Hun 269, 22 N. 
 Y. Supp. 990. As to the creation of ease- 
 ments by deed, see 8 L. R. A. 617, note; and 
 by implication, see O'Brien v. R. Co., 74 Md. 
 363, 22 Atl. 141, 13 L. R. A. 126. 
 
 Wliere the owner of a tract of land front- 
 ing upon a public highway sells a portion 
 thereof which is entirely surrounded by the 
 land of the grantor and of strangers with 
 no outlet, except over the lands of the gran- 
 tor, the grantee is entitled to a right of way 
 over the grantor's land, unless the situation 
 of the land or the object for which it is used 
 and conveyed shows that no grant of such 
 right was intended ; Mead v. Anderson, 40 
 Kan. 203, 19 Pac. 708. See Kinney v. Hook- 
 er, 65 Vt. 333, 26 Atl. 690, 36 Am. St. Rep. 
 S64. 
 
 In case of a division of an estate consist- 
 ing of two or more heritages, the question 
 whether an easement or convenience, which 
 may have been used in favor of one in or 
 over the other by the common owner of both, 
 shall become attached to the one or charged 
 upon the other in the hands of separate own- 
 ers, by a grant of one or both of those parts, 
 or upon a partition thereof, must depend, 
 where there are no words limiting or defin- 
 ing what is intended to be embraced in the 
 deed or partition, upon whether the ease- 
 ment is necessary for the reasonable enjoy- 
 ment of the part of the heritage claimed as 
 an appurtenance. 
 
 The scope of the doctrine of implication 
 of an easement over one portion of a gran- 
 tor's lands in favor of the other portion, ei- 
 ther granted or reserved upon the sale of ei- 
 ther portion, is said to be in much confu- 
 sion in the United States. The rule in Eng- 
 land, as quoted and adopted in perhaps the 
 most cited of the earlier American cases, 
 Lampman v. Milks, 21 N. Y. 505, is, in ef- 
 fect, that where the owner of two tenements 
 sells one of them, the purchaser takes the 
 portion sold, with all the benefits and bur- 
 dens which appear at the time of the sale 
 to belong to it, as between it and the prop- 
 erty which the vendor retains. . . . The 
 parties are presumed to contract in reference 
 to the condition of the property at the time 
 of the sale, and neither has a right, by alter- 
 ing arrangements then openly existing, to 
 change materially the relative value of the 
 respective parts. The rule has been applied 
 in Dixon v. Schermeier, 110 Cal. 582, 42 Pac. 
 1091 ; Fremont, E. & M. V. R. Co. v. Gayton, 
 67 Neb. 203, 93 N. W. 163 ; Janes v. Jenkins, 
 34 Md. 1, 6 Am. Rep. 300; Cihak v. Klekr, 
 117 111. 643, 7 N. E. Ill ; Dunklee v. R. Co., 
 24 N. H. 489 ; Henry v. Koch, 80 Ky. 391, 44 
 Am. Rep. 484; Cannon v. Boyd, 73 Pa. 179; 
 
 John Hancock Mut. Life Ins. Co. v. Patter- 
 son, 103 Ind. 582, 2 N. E. 188, 53 Am. Rep. 
 550; Lammott v. Ewers, 106 Ind. 310, 6 N. 
 E. 636, 55 Am. Rep. 746. In the states where 
 the rule has been adopted in terms, its ap- 
 plication has been quite limited, and in some 
 of them an early tendency to liberality has 
 been followed by a later strictness of limi- 
 tation; Griffiths v. Morrison, 106 N. Y. 165, 
 12 N. E. 5S0; Whyte v. Builders' League of 
 New York, 164 N. Y. 429, 58 N. E. 517 ; Keats 
 v. Hugo, 115 Mass. 204, 15 Am. Rep. 80. 
 
 It is said that this rule has its reason in 
 intended permanence of real estate arrange- 
 ments supposed to be in the minds of gran- 
 tor and grantee. But, whatever may be true 
 in older communities, it would be difficult 
 to find justification for any such presump- 
 tion in a new and developing country, and 
 especially in cities. There, instead of per- 
 manence, change is to be expected, and there 
 can be but a slight reason to suppose that, 
 upon a sale of that part of an entire tract 
 on which stands a house, it is intended per- 
 manently to subject other parts of the tract 
 to such obsolescent uses, although the own- 
 er of the whole had so devoted them ; Miller 
 v. Hoeschler, 126 Wis. 263, 105 N. W. 790, 8 
 L. R. A. (N. S.) 327, where it is said : "The 
 English rule, above quoted, if applied to the 
 full extent of its words, would be against pub- 
 lic policy." In Dillman v. Hoffman, 38 Wis. 
 359, doubt Is suggested whether any enlarge- 
 ment of the doctrine of implied easements, be- 
 yond rights of way strictly necessary to the 
 use of the dominant estate, is at all wise. 
 Largely on the authority of that case, neces- 
 sary rights of way have been implied in sev- 
 eral cases ; Jarstadt v. Smith, 51 Wis. 96, 8 N. 
 W. 29 ; Galloway v. Bonesteel, 65 Wis. 79, 26 
 N. W. 262, 56 Am. Rep. 610 ; Johnson v. Bor- 
 son, 77 Wis. 593, 46 N. W. 815. 20 Am. St. Rep. 
 146 ; Benedict v. Barling, 79 Wis. 551, 48 N. W. 
 670; but no other easement than a right of 
 way has been held implied in that state; 
 Miller v. Hoeschler, 126 Wis. 263, 105 N. W. 
 790, 8 L. R. A. (N. S.) 327, where the con- 
 clusion is reached that even if, in some ex- 
 treme cases, there must be any easement 
 other than right of way implied from neces- 
 sity, that necessity must be so clear and ab- 
 solute that, without the easement, the gran- 
 tee cannot, in any reasonable sense, be said 
 to have acquired that which is expressly 
 granted. 
 
 In New York the rule of strict necessity 
 is applied to reservations, but not to grants ; 
 Paine v. Chandler, 134 N. Y. 385, 32 N. E. 18, 
 19 L. R. A. 99. The reservation of an ease- 
 ment will not be implied except in cases 
 where it was apparent, continuous, and 
 strictly necessary; Wells v. Garbutt, 132 N. 
 Y. 430, 30 N. E. 97S ; Whyte v. Builders' 
 League of New York, 164 N. Y. 429, 58 N. E. 
 517. The former case was approved and fol- 
 lowed in Walker v. Clifford, 128 Ala. 67, 29 
 South. 5S8, 86 Am. St. Rep. 74. In Stuyve-
 
 EASEMENT 
 
 971 
 
 EASEMENT 
 
 sant v. Early. 58 App. Div. 242, G8 K. Y. 
 Supp. 752, a distinction between an Implied 
 grant and an implied reservation was recog- 
 nized. It was (here held that a right to 
 drain through the grantor's premises passed 
 by implication, on the ground that the ease- 
 ment was visible and apparent The court 
 said that, if the owner had conveyed the 
 servient tenement first, no easement would 
 have been implied. 
 
 In New Jersey, there is no distinction be- 
 tween an implied grant and an implied res- 
 ervation; Greer v. Van Meter. 54 X. 3 Eq. 
 270, 33 Atl. 704; so in Seibert v. Levan, 8 
 Pa. 383, 49 Am. Dec. 525, the distinction be- 
 tween an implied grant and an implied res- 
 ervation was denied, following the rule in 
 Gale & Whately, Easem. 52: "It is true 
 that, strictly speaking, a man cannot sub- 
 ject one part of his property to another by 
 an easement, for no man can have an ease- 
 ment in his own property: but he obtains 
 the same object by the exercise of another 
 right, the general right of property; but he 
 has, nevertheless, thereby altered the quali- 
 ty of the two parts of his heritage, and if, 
 after the annexation of peculiar qualities, 
 he alien one part of his heritage, it seems 
 but reasonable, if the alterations thus made 
 are palpable and manifest, that a purchaser 
 should take the land, burdened or benefited, 
 as the case may be, by the qualities which 
 the previous owner had undoubtedly the 
 right to attach to it." 
 
 In Burns v. Gallagher, G2 Md. 4G4, the 
 test was said to be that the doctrine of res- 
 ervation of an easement would be invoked 
 when the necessity is so strict that it would 
 be unreasonable to suppose the parties in- 
 ' tended the easement in question should not 
 be used. Where the owner of a lot, bounded 
 on one side by a highway and on the other 
 by the ocean, sold that half of the estate 
 which adjoined the highway, without ex- 
 pressly reserving a way across it from the 
 highway to the part he retained, and no ac- 
 cess could be had to the unsold portion ex- 
 cept by the ocean or by crossing the land 
 of other owners, it was held, following the 
 English rule, that the ocean was a public 
 highway, and. as all communication was not 
 shown to be cut off, the grantor must in fu- 
 ture rely on such access as the sea afforded. 
 Hildreth v. Googins, 91 Me. 227, 39 Atl. 550. 
 
 Where it is not necessary, it requires de- 
 scriptive words of grant or reservation in 
 the deed to create it; Washb. Easem. or, ; 
 36 Am. Rep. 415. The common-law rule re- 
 quiring the word "heirs" in the creation of 
 an estate of inheritance by deed is inappli- 
 cable in creating a permanent easement ; 
 Chapped v. R. Co., G2 Conn. 195, 24 Atl. 997, 
 17 L. R. A. 420; Lathrop v. Eisner, 93 Mich. 
 599, 53 N. W. 701. See Clatlin v. R. Co., 157 
 Mass. 489, 32 N. E. 659, 20 L. R. A. OSS. The 
 use of the word appurtenances is not suffi- 
 cient to create an easement where none ex- 
 
 isted before; Bonelli v. Pdakeiuore, 66 Miss. 
 136, 5 South. 228, 14 Am. St. Rep. 550. 
 
 An easement in land held in common can- 
 not be acquired by one of the tenao 
 common in favor of land held by him in 
 severalty, as a right of flowage over com- 
 mon property by a '.nil. owning a dam; 
 Great Falls Co. v. Worster, 15 N. H. 412; 
 
 or a right of way over i; :i land by 
 
 the tenant to a lot in the rear owned by 
 him; Boyd v. Hand, >■'< 6a. 
 
 There are many rights which in 
 mode of enjoyment partake of the chfl r 
 of easements, such as a custom for the In- 
 habitants of a village to dance upon a par- 
 ticular close at all times of the year; I 
 170: for the inhabitants of a parish to play 
 at all kinds of lawful games in a close at all 
 seasonable times of the year; 2 II. I'd. 393; 
 for the freemen and citizens of a town on a 
 particular day of the year to enter upon a 
 close and have horse races thereon; l II. 4 
 C. 720; that every inhabitant of a town shall 
 have a way over certain land either to 
 church or to market; 6 Co. Rep. 50; a right 
 to use a strip of land as a promenade; [1900] 
 1 Ir. 302; a custom for victuallers to erect 
 booths on the waste of a manor at the time 
 of fairs; 6 A. & E. 745; for the inhabitants 
 of a township to go on a close and take wa- 
 ter from a spring ; 4 E. & B. 702 ; to move 
 vessels in a navigable tidal estuary of the 
 Thames: [1807] 2 Q. B. 318; to deposit oys- 
 ters dredged from oyster fisheries upon the 
 foreshore in another part of the fishery ; 
 [1901] 2 K. B. 870; for all the fishermen of 
 a parish to dry their nets on a particular 
 close; [1004] 2 Ch. 534; [1005] 2 Ch. 538: 
 for the inhabitants of a burgh (in Scotland) 
 to use a strip of ground for recreation and 
 for drying clothes; [1904] A. C. 73. As. 
 however, the existence and validity of these 
 rights generally depend on some local cus- 
 tom excluding the operation of the general 
 rules of law (consuetudo tollit communem 
 legem) and they are sometimes entirely in- 
 dependent of any express or implied agree- 
 ment 1 pet ween the parties, they generally 
 stand upon a different footing, and are not 
 in all respects governed by the same princi- 
 ples as those which determine the boundaries 
 of private easements. When claims of this 
 kind are unreasonable, they are disallowed 
 even in cases where they might possibly 
 have formed the subject of a valid grant. 
 When it is said that a custom is void be- 
 cause it is unreasonable, nothing more is 
 meant than that the unreasonable character 
 of the allowed custom conclusively proves that 
 the usage, even though it may have eNisteil 
 immemorially, must have resulted from acci- 
 dent or indulgence, and not from any right 
 j conferred in ancient times on the party set- 
 ting up the custom; II. E. Cas. 692. 
 The general public cannot acquire by user 
 | a right to visit a monument or other object
 
 EASEMENT 
 
 972 
 
 EASEMENT 
 
 of interest on private property (Stonehenge) ; 
 [1905] 2 Ch. Div. 1S8. See Jus Spatiandi. 
 Easements are extinguished : by release ; 
 by merger, when the two tenements in re- 
 spect of which they exist are united under 
 the same title and to the same person; Par- 
 sons v. Johnson, 68 N. Y. 62, 23 Am. Rep. 
 149; by necessity, or abandonment, as by a 
 license to the servient owner to do some 
 act inconsistent with its existence; Cart- 
 wright v. Maplesden, 53 N. Y. 622 ; by 
 cessation of enjoyment, when acquired by 
 prescription, — the non-user being evidence 
 of a release where the abandonment has con- 
 tinued at least as long as the user from 
 which the right arose. In some cases a 
 shorter time will suffice; 2 Washb. R. P. 56, 
 82, 453. An easement acquired by grant 
 cannot be lost by mere non-user, though it 
 may be by non-user coupled with an inten- 
 tion of abandonment; Welsh v. Taylor, 134 
 N. Y. 450, 31 N. E. 896, 18 L. R. A. 535; 
 Edgerton v. McMullan, 55 Kan. 90, 39 Pac. 
 1021; Tabbutt v. Grant, 94 Me. 371, 47 Atl. 
 899 ; Cox v. Forrest, 60 Md. 74. A presump- 
 tion of a way resting in grant will not be 
 created by the fact that it is not continuous- 
 ly used by the dominant owner; Bombaugh 
 v. Miller, 82 Pa. 203 ; [1893] A. C. 162 ; Tyler 
 v. Cooper, 47 Hun (N. Y.) 94. The destruc- 
 tion of an easement of a private right of 
 way for public purposes is a taking of the 
 property of the dominant owner for which 
 he must be compensated ; IT. S. v. Welch, 217 
 U. S. 333, 30 Sup. Ct. 527, 54 L. Ed. 787, 28 
 L. R. A. (N. S.) 385, 19 Ann. Cas. 680. 
 
 Prescription does not run against the ex- 
 ercise of a servitude in favor of one who 
 resisted and prevented its exercise; Sarpy v. 
 Hymel, 40 La. Ann. 425, 4 South. 439. Mere 
 non-user must be accompanied by adverse 
 use of the servient estate; Welsh v. Taylor, 
 134 N. Y. 450, 31 N. E. 896, 18 L. R. A. 535, 
 with note on the effect of non-user generally. 
 One cannot acquire a prescriptive right over 
 his own lands or the lands of another which 
 he occupies as tenant ; Vossen v. Dautel, 116 
 Mo. 379, 22 S. W. 734. 
 
 An easement in favor of land held in com- 
 mon will be extinguished by a partition, if 
 nothing is said about it; Livingston v. 
 Ketcham, 1 Barb. (N. Y.) 592. As to the 
 loss or extinguishment of easements, see 1 
 L. R. A. 214, note. 
 
 The remedy at common law for interfer- 
 ence with a right of easement is an action of 
 trespass, or where it is for consequential 
 damages and for an act not done on plain- 
 tiff's own land, of case; Brenton v. Davis, 8 
 Blackf. (Ind.) 317, 44 Am. Dec. 769; Gan- 
 ley v. Looney, 14 Allen (Mass.) 40. Where 
 the act complained of is done in one county, 
 but the injurious consequences thereof are 
 felt in another, the action may be brought in 
 the latter; Thompson v. Crocker, 9 Pick. 
 (Mass.) 59; Worster v. Lake Co., 25 N. H. 
 
 525. Redress may also, as a general propo- 
 sition, be obtained through a court of equi- 
 ty, for the infringement of an easement and 
 an injunction will be granted to prevent the 
 same ; Washb. Easem. 747. 
 
 As to the distinction between an easement 
 and a license, see License. 
 
 See Washburn, Easements ; Abandonment ; 
 Air; Ancient Lights; Backwater; Com- 
 mon ; Dam ; Highways ; Lateral Support ; 
 Party- Wall; Profit A Prendre; Servitude; 
 Street ; Support ; Way. 
 
 EASTER TERM. In English Law. For- 
 merly one of the four movable terms of the 
 courts, but afterwards a fixed term, begin- 
 ning on the 15th of April and ending on the 
 8th of May in every year, though sometimes 
 prolonged so late as the 13th of May, under 
 stat. 11 Geo. IV. and 1 W T ill. IV. c. 70. See 
 Term. 
 
 EASTERLY. When this word is used 
 alone it will be construed to mean due east ; 
 but this is a rule of necessity, growing out 
 of the indefiniteness of the term and has no 
 application where other words are used for 
 the purpose of qualifying its meaning. 
 Where such is the case it means precisely 
 what the qualifying word makes it mean; 
 Fratt v. Woodward, 32 Cal. 227, 91 Am. Dec. 
 573. 
 
 EAT IND E SINE DIE. Words used on an 
 acquittal, or when a prisoner is to be dis- 
 charged, that he may go without day; that 
 is that he be dismissed. Dane, Abr. Index. 
 
 EAVES-DROPPERS. In Criminal Law. 
 
 Such persons as wait under walls or win- 
 dows or the eaves of a house, to listen to dis- 
 courses and thereupon to frame mischievous- 
 tales. 
 
 The common-law punishment for this of- 
 fence is fine and finding sureties for /good 
 behavior ; 4 Bla. Com. 167 ; State v. Williams, 
 2 Ov. (Tenn.) 108. See Com. v. Lovett, 4 
 Clark (Pa.) 5; 1 Bish. Cr. L. § 112; State v. 
 Pennington, 3 Head (Tenn.) 299, 75 Am. Dec. 
 771; 8 Haz. Pa. Reg. 305. 
 
 EBB AND FLOW. An expression used 
 formerly in this country to denote the limits 
 of admiralty jurisdiction. As to jurisdiction 
 as founded on ebb and flow of tide, see Ad- 
 miralty. 
 
 EBEREMURDER. See Aberemurder. 
 
 ECCHYM0SIS. In Medical Jurisprudence. 
 
 Localized discoloration in and under the 
 skin. An extravasation of blood by rupture 
 of capillary vessels, and hence it follows con- 
 tusion ; but it may exist, as in cases of scur- 
 vy, asphyxiation and other morbid condi- 
 tions, without the latter. Ryan Med. Jur. 
 172. Ecchymoses produced by blows upon 
 a body but a few hours dead cannot be dis- 
 tinguished from those produced during life. 
 1 Witth. & Beck. Med. Jur. 485; 2 Bec&, 
 Med. Jur. 22.
 
 ECCLESIA 
 
 973 
 
 ECCLESIASTICAL COURTS 
 
 ECCLESIA (Lat). An assembly. A 
 Christian assembly; a church. A place of 
 religious worship. Spelman, Gloss. 
 
 In the civil law this word retains its classical 
 meaning of an assembly of whatever character. 
 Du Cange; Calvinus, Lex.; Vicat. Voc. Jur. ; Acts 
 xix. 39. Ordinarily in the New Testament the word 
 denotes a Christian assembly, and is. rendered Into 
 English by the word church. It occurs twice In 
 the gospels, Matt. xvi. 18, xvlil. 17, bul 
 in the other parts of the New Testament, beginning 
 with Acts ii. 47. Ecclesia there never denotes the 
 building, however, as its English equivalent church 
 does. In the law, generally, the word is used to de- 
 note a place of religious worship, and sometimes a 
 parsonage. Spelman, Gloss. See Chuj:ch. 
 
 ECCLESIASTIC. A clergyman; one des- 
 tined to the divine ministry: as, a bishop, 
 a priest, a deacon. 
 
 ECCLESIASTICAL COMMISSIONERS. 
 
 In English Law. A body appointed to con- 
 sider the state of the revenues, and the more 
 equal distribution of episcopal duties, in the 
 several dioceses. They were first appointed 
 as royal commissioners in 1835 ; were incor- 
 porated in 1836, and now comprise all the 
 bishops of England and Wales and the Lord 
 Chief Justice, and other persons of distinc- 
 tion. 2 Steph. Com. 798. 
 
 ECCLESIASTICAL CORPORATIONS. 
 
 Such corporations as are composed of per- 
 sons who take a lively interest in the ad- 
 vancement of religion, and who are associ- 
 ated and incorporated for that purpose. 
 Ang. & A. Corp. § 36. 
 
 Corporations whose members are spiritual 
 persons are distinguished from lay corpora- 
 tions; 1 Bla. Com. 470. 
 
 They are generally called religious corpo- 
 rations in the United States. 2 Kent ~~i; 
 Ang. & A. Corp. § 37. 
 
 In the earlier times, the church became a large 
 property owner. Before the device of a corporation 
 sole was known to the law, there was the greatest 
 uncertainty as to who the owner of church property 
 really was. Property given to the church was given 
 to the patron saint — the gift was in the first place 
 to God and the saint, and only in the second place 
 to the ecclesiastic in charge of it. But it was man- 
 aged by a group of persons and they were per- 
 petual because their numbers were always being 
 renewed. Gradually the theory that they were per- 
 sonce fictce was evolved by the Canonists. They 
 became persons created by law — distinct from their 
 members, and perpetual. The change was grad- 
 ually accepted by the common-law lawyers and was 
 extended to other groups which had nothing to do 
 with the church. The growing definiteness of the 
 conception of the corporation had reacted upon those 
 ecclesiastical corporations which had originally in- 
 troduced the idea of persona ficta. The corporation 
 was a person. Gifts were made to a parson for the 
 benefit of the church and no longer to a saint. The 
 parson became a corporation sole and gradually 
 that theory obtained recognition at the common 
 law ; 3 Holdsw. Hist. E. L. 367 ; see 16 L. Q. R. 
 336, where Prof. Maitland suggests that "corpora- 
 tion sole" was first applied to a parson by Brooke, 
 author of the Abridgment, who died in 1558. See, as 
 to corporations sole, Corporation. 
 
 See Association ; Religious Societies ; 
 Church. 
 
 ECCLESIASTICAL COURTS (called, also, 
 Courts Christian) . The generic name for 
 
 certain courts in England having cognizance 
 mainly of spiritual matters. 
 
 In 1857 tiny were deprived of their juris- 
 diction in probate and divorce 1 they 
 now deal only with clergymen of the Church 
 of England in their professional char: 
 Even over clergymen their power on 
 tionB Of heresy is very limited, it is not an 
 ecclesiastical offense to denj that the whole 
 of the Scriptures are inspired, or to r< 
 parts thereof as Inherently Incredible, etc., 
 so long as they do not contradict the Arti- 
 cles or Formularies of the Church of Eng- 
 land. Odgers, Com. L. 206. 
 
 See Cotjbtb of England; Church of Eng- 
 land; Court of Abches; Court of Con 
 tion ; Court of Faculties ; Court of Pecul- 
 iars; Consistory Courts; Abchdeacon's 
 Court; Prerogative Court; Privy Council. 
 
 ECCLESIASTICAL LAW. The law of the 
 
 church. 
 
 The existence In England of a separate order of 
 ecclesiasttical courts, and a separate system of law 
 by them administered, may be traced back to the 
 time of William the Conqueror, who separated the 
 civil and the ecclesiastical jurisdictions, and forbade 
 tribunals of either class from assuming cognizance 
 of cases pertaining to the other. The elements of 
 the English ecclesiastical law are the canon law, 
 the civil law, the common law of England, and the 
 statutes of the realm. The jurisdiction of the ec- 
 clesiastical tribunals extended to matters concern- 
 ing the order of clergy and their discipline, and also 
 to such affairs of the laity as "concern the health of 
 the soul;" and under this latter theory it grasped 
 also cases of marriage and divorce, and testamen- 
 tary causes. But in more recent times, 1830-1858, 
 these latter subjects have been taken from these 
 courts, and they are now substantially confined to 
 administering the judicial authority and discipline 
 incident to a national ecclesiastical establishment. 
 See Canon Law ; Ecclesiastical Courts ; Asso- 
 ciation ; Church ; Religious Society. 
 
 ECHOUEMENT. In French Marine Law. 
 Stranding. 
 
 ECLAMPSIA PARTURIENTIUM. In Med- 
 ical Jurisprudence. Puerperal convulsions. 
 Convulsive movements, loss of consciousness, 
 and coma occurring during pregnancy, par- 
 turition or the puerperium. The attack close- 
 ly resembles the convulsions of epilepsy. 
 The disease is often fatal, causing the death 
 of the patient in about one-fourth of all the 
 cases, and foetal death in about one-half. 
 Mental defects may result from eclampsia. 
 and are occasionally permanent American 
 Text-book of Obstetrics. 
 
 The word eclampsia Is of Greek origin Signiflcat 
 splendorem, fulgorem, effulgentiam, ct ■ 
 qualcs ex oculis aliquando prodeunt. Mctaphoricc 
 sumitur dc emicatione flamma vitalis in pubertate 
 ct CEtatis vigore. Castelli, Lex. Medic. 
 
 There can be but little doubt that many of the 
 tragical cases of Infanticide proceed from this 
 cause. The criminal judge and lawyer cannot in- 
 quire with too much care Into the symptoms of 
 this disease, in order to discover the guilt of the 
 mother, whero it exists, and to ascertain her In- 
 nocence, where it does not. See two well-reported 
 cases of this kind in the Boston Medical Journal, 
 vol. 27, no. 10, p. 161. 
 
 EDICT (Lfit. cdictum). A law ordained 
 by the sovereign, by which he forbids or
 
 EDICT 
 
 974 
 
 EDUCATE 
 
 commands something: it extends either to 
 the whole country or only to some particular 
 provinces. 
 
 Edicts are somewhat similar to public proclama- 
 tions. Their difference consists in this, — that the 
 former have authority and form of law in them- 
 selves, whereas the latter are, at most, declarations 
 of a law before enacted. 
 
 Among the Romans this word sometimes signified 
 a citation to appear before a judge. The edicts of 
 the emperors, also called const itutiones principium, 
 were new laws which they made of their own mo- 
 tion, either to decide cases which they had foreseen, 
 or to abolish or change some ancient laws. They 
 were different from rescripts or decrees, which were 
 answers given in deciding questions brought before 
 them. These edicts contributed to the formation of 
 the Georgian, Hermogenian, Theodosian, and Jus- 
 tinian codes. See Dig. 1. 4. 1. 1 ; Inst. 1. 2. 7 ; Code 
 1. 1; Nov. 139. 
 
 A special edict was a judgment in a case ; 
 a general edict was in effect a statute. The 
 praetor, at the commencement of his year 
 of office, published a body of rules as to the 
 remedies he would grant. In the reign of 
 Hadrian (A. D. 131) a codified edict was 
 published, made by Salvius Julianus, and 
 called the Edictum Salvianum or Perpetuum. 
 
 EDICTS OF JUSTINIAN. Thirteen con- 
 stitutions or laws of this prince, found in 
 most editions of the Corpus Juris Civilis 
 after the Novels. Being confined to matters 
 of police in the provinces of the empire, they 
 are of little use. 
 
 EDICTUM PERPETUUM. See Edict. 
 
 EDITION. The term applies to every 
 quantity of books put forth to the booksell- 
 ing trade at one time by the publisher; 4 
 K. & J. G56. A new edition is published 
 whenever, having in his warehouse a certain 
 number of copies, the publisher issues a 
 fresh batch of them to the public. This, ac- 
 cording to the practice of the trade is done, 
 as is well known, periodically, and if, after 
 printing 20,000 copies, a publisher should 
 think it expedient for the purpose of keep- 
 ing up the price of the work, to issue them 
 in batches of a thousand at a time, keeping 
 the rest under lock and key, each successive 
 issue would be a new edition in every sense 
 of the word; 4 K. & J. 667; Short, Litera- 
 ture. 
 
 EDITOR. The term is held to include not 
 only the person who writes or selects the ar- 
 ticles for publication, but he who publishes 
 a paper and puts it in circulation. Pennoyer 
 v. Neff, 95 U. S. 721, 24 L. Ed. 565 ; Bunce v. 
 Reed, 16 Barb. (N. Y.) 350. 
 
 EDITUS. In Old English Law. Put forth 
 or promulgated when speaking of the pas- 
 sage of a statute ; and brought forth or born, 
 when speaking of the birth of a child. Black, 
 L. Diet. 
 
 EDMUNDS ACT. An act of congress of 
 March 22, 1882, punishing polygamy, which 
 see. 
 
 EDUCATE. Includes proper moral, as 
 well as intellectual and physical, instruction. 
 
 Ruohs v. Backer, 6 Heisk. (Tenn.) 395, 19 
 Am. Rep. 59S. See Williams v. MacDougall, 
 39 Cal. SO; Merrill v. Emery, 10 Pick. 
 (Mass.) 507; Peck v. Claflin, 105 Mass. 420; 
 De Camp v. Dobbins, 29 N. J. Eq. 36. 
 
 EDUCATION. It may be directed partic- 
 ularly to either the mental, moral, or physi- 
 cal powers and faculties, but in its broadest 
 and best sense it refers to them all. Mt. 
 Hermon Boys' School v. Gill, 145 Mass. 146, 
 13 N. E. 354. 
 
 Legal Education. This subject has been 
 for many years receiving earnest and ex- 
 tended attention in England and the United 
 States. It has been elaborately treated at 
 various times by committees of the American 
 Bar Association, in which a report was made 
 in 1879 by Carleton Hunt, chairman, and 
 subsequent reports in 1881, 1890, 1891, and 
 1892. See the annual reports of those years. 
 In 1893 the association formed a section of 
 legal education, which has held yearly con- 
 ferences for the reading of papers and dis- 
 cussion on the subject, which has been ably 
 and elaborately treated. Its work in 1894 
 was published by the United States in the 
 reports of the Commissioner of Education. 
 
 In 1901, an Association of Amferican Law 
 Schools was organized in connection with 
 that Association, which has also held annual 
 meetings. 
 
 The subject has also been much discussed 
 by various State Bar Associations, as will 
 appear by reference to their published re- 
 ports. 
 
 An interesting address by Lord Russell, 
 Lord Chief Justice of England, was deliver- 
 ed before the Benchers of Lincoln's Inn, Oc- 
 tober, 1895. See also a paper by Austen G. 
 Fox on the work of the New York State 
 Board of Examiners (Am. Bar Ass'n Report, 
 1S96, p. 543, and 10 Harv. L. Rev. 199). The 
 following is a partial list of books and pa- 
 pers on the subject: 
 
 Legal Education, by Gerald B. Finch, Lon- 
 don, 1885; 1 Jurid. Soc. Papers 385; Hoff- 
 man's Course of Legal Studies; Warren's 
 Introd. to Law Studies; Jones, Legal Educ. 
 in France; Parliamentary Reports on Inns 
 of Court, 1855, and on Legal Educ, 1846; 
 Sir R. Palmer's Address before the Legal 
 Educ. Association, 1871 ; Reports of Incor- 
 porated Law Society, 1893, 1894, 1895, 1896; 
 Bar Examinations in Canada, 18 Legal News 
 (Can.) 275; 3 Amer. Lawy. 55, 283, 288; 
 33 Am. Law Reg. 689; N. Y. State Bar As- 
 sociation Report, 1894; 7 Harv. Law Rev. 
 203; Sir F. Pollock's Advice to Students, 95 
 Law Times 552 j Existing Questions, by 
 Austin Abbott, 26 Chi. Leg. News 72; Meth- 
 ods of Study, by J. N. Field, 48 Alb. L. J. 
 264; 34 id. 84; 24 Am. L. Rev. 211, 1027; 
 Address by Lawrence Maxwell, Jr., 30 Week- 
 ly L. Bull. 41; 48 Alb. L. J. 81-88; 47 id. 
 496 ; 28 Can. L. J. 605 ; 9 Scot. L. Rev. 122 ; 
 9 Harv. L. Rev. 169; Case System, 27 Am.
 
 EDUCATION 
 
 975 
 
 EFFECTS 
 
 L. Reg. 416; 23 Am. L. Rev. 1; 25 id. 234; 
 22 id. 750; In Germany, 8 Am. L. Rec. 200; 
 In Japan, 5 G. B. 17, 18; Inns of Court, 1 
 id. G8. See numerous other references in 
 Jones's Index of Legal Periodicals. 
 
 EFFECT. The operation of a law, of an 
 agreement, or an act, is called its effect. 
 Maize v. State, 4 ind. 342. 
 
 By the laws of the United States, a patent 
 cannot he granted for an effect only, but it 
 may be for a new mode or application of 
 machinery to produce effects; Whittemore v. 
 Cutter, 1 Gall. 478, Fed. Cas. No. 17,001. 
 See Gray v. James, 1 Pet. C. C. 304, Fed. Cas. 
 No. 5,718. 
 
 EFFECTS. Property, or worldly sub- 
 stance. As thus used, it denotes property 
 in a more extensive sense than goods. - 
 Bla. Com. 2S4. See The Alpena, 7 Fed. 361. 
 Indeed the word may be used to embrace 
 every kind of property, real and personal, 
 including things in action ; as, a ship at sea ; 
 Welsh v. Parish, 1 Hill (S. C.) 155; a bond; 
 Banning v. Sibley, 3 Minn. 389 (Gil. 282) ; 
 16 East 222; shares of capital stock; Union 
 Nat. Bank v. Byram, 131 111. 92, 22 N. E. 
 842. 
 
 In a will, "effects" may carry the whole 
 personal estate; 5 Madd, 72; 15 Ves. 507; 
 but not real estate; Andrews v. Applegate, 
 223 111. 535, 70 N. E. 176, 12 L. R. A. (N. S.) 
 661, 7 Ann. Cas. 126; Appeal of Price, 169 
 Pa. 204, 32 Atl. 455 ; unless the word "real" 
 be added; 15 M. & W. 450; Foxall v. MeKen- 
 ney, 3 Cranch C. C. 200, Fed. Cas. No. 5,016 ; 
 Schouler, Wills § 509. "Effects either real 
 or personal," in the residuary clause of a 
 will, have been held to embrace real estate; 
 22 L. J. Ch. N. S. 230 ; Page v. Foust, 89 N. 
 C. 447. When preceded or followed in a will 
 by words of narrower import, if the bequest 
 is not residuary, it will be confined to spe- 
 cies of property of the same kind (ejusdem 
 generis) with those previously described; 13 
 Ves. 39; Rop. Leg. 210. See 2 Sharsw. Bla. 
 Com. 384, n. Generally speaking the word 
 "effects" in a will, is equivalent to "proper- 
 ty" or "worldly substance" ; but the inter- 
 pretation may be restricted to articles ejus- 
 dem generis with those previously enumer- 
 ated or specified ; 1 Ves. Jr. 143 ; 15 Ves. 500. 
 
 When "the effects" passes realty, and 
 when personalty, in a will, see 1 Jarm. Wills 
 585, 590; Ennis v. Smith, 14 How. (U. S.) 
 400, 420, 14 L. Ed. 472; 1 Cowp. 307; L. R. 
 8 Ch. Div. 501; Will. 
 
 In a treaty between the United States and 
 the Netherlands, "effects" was held to in- 
 clude real estate; Dowd v. Sea well, 14 N. C. 
 188; and in a treaty between Sweden and 
 the United States "fonds et biens" (trans- 
 lated goods and effects) was held to embrace 
 all kinds of property; Adams v. Akerluml. 
 168 111. 632, 48 N. E. 454. But these words 
 in this treaty were held to apply to personal- 
 
 ty only in Meier v. Lee, 106 la. 303, 70 N. 
 
 W. 71^. 
 
 EFFIGY. The figure or representation of 
 a person. 
 
 To make the effigy of a person with an in- 
 tent to make him the object of ridicule, is 
 libel (q. v.). Hawk. PI. Cr. b. 1, c. 73, s. 2; 
 
 14 Fast JUT; U Chitty, Cr. Law [ 
 
 In France an execution by effigy or in effigy was 
 adopted in the case of a criminal who has fled from 
 justice. By the public exposure or exhibition of a 
 picture or representation of him on a scaffold, on 
 which his name and the decree condemning him are 
 written, he is deemed to undergo the punishment 
 to which he has been sentenced. Since the adop- 
 tion of the Code Civil, the practice has been to affix 
 the names, qualities, or addition, and the residence, 
 of the condemned person, together with an extract 
 from the sentence of condemnation, to a post set 
 upright in the ground, instead of exhibiting a por- 
 trait of him on the scaffold. Rfipert. de Villargucs ; 
 Biret, Vocab. 
 
 EFFRACTOR. One who breaks through; 
 one who commits a burglary. 
 
 EGO. I, myself. This term is used in 
 forming genealogical tables, to represent the 
 person who is the object of Inquiry. 
 
 EGYPT. As to courts established by the 
 Christian Powers in Egypt, see Mixed Tri- 
 bunals. 
 
 EIGHT HOUR LAWS. Statutes making 
 
 eight hours a day's labor for workmen, la- 
 borers, and mechanics. 
 
 Acts regulating the hours of labor for wo- 
 men and children are generally upheld; Com. 
 v. Mfg. Co., 120 Mass. 383; Com. v. Beatty. 
 
 15 Pa. Super. Ct. 5; State v. Buchanan, 29 
 Wash. 602, 70 Pac. 52, 59 L. R. A. 342, '.tii 
 Am. St. Rep. 930; but contra, Ritchie v. Peo- 
 ple, 155 111. 98, 40 N. E. 454, 29 L. R. A. 79. 
 46 Am. St. Rep. 315, where the Massachu- 
 setts case was expressly disapproved. See 
 Atkin v. Kansas, 191 U. S. 207, 24 Sup. Ct. 
 124, 48 L. Ed. 14S; Lirf.rty of Contract. 
 Such statutes have been upheld in three 
 classes of cases: (1) Occupations injurious 
 to the health of employes; (2) occupations 
 in which women and children are employed; 
 (3) occupations involving the public safety 
 and welfare. Holden v. Hardy, 100 U. S. 
 366, 18 Sup. Ct. Rep. 383, 42 L. Ed. 7S0. 
 
 An act providing that in contracting for 
 municipal work the contractor should bind 
 himself not to accept more than eight hours 
 as a day's work to be performed within nine 
 consecutive hours or, except in case of ne- 
 cessity, not to employ any one for more than 
 eight hours in twenty-four consecutive hours, 
 was held not to violate either the federal or 
 the New Yorb eoiistitut ion ; People v. War- 
 ren, 77 Bun 120, 2S N. Y. Supp. 303; People 
 v. Beck, 1(» Misc. 77, 30 N. Y. Supp. 473, re- 
 versed on other grounds in Teople v. Beck, 
 14-1 X. Y. 225, :;:i x. e. 80. 
 
 other courts have held that statutes lim- 
 iting a day's work lor all classes of niechan-
 
 EIGHT HOUR LAWS 
 
 97G 
 
 EISNE 
 
 ics, servants and laborers (except farm and 
 domestic workers) to eight hours are invalid 
 as interfering with the constitutional rigM 
 to contract ; Low v. Printing Co., 41 Neb. 
 127, 59 N. W. 362, 24 L. R. A. 702, 43 Am. St. 
 Rep. G70; In re Bill Providing That Eight 
 Hours Shall Constitute a Day's Labor, 21 
 Colo. 29, 39 Pac. 328; City of Cleveland v. 
 Const. Co., 67 Ohio St. 197, 65 N. E. 885, 59 
 L. R. A. 775, 93 Am. St. Rep. 670; Fiske v. 
 People, 18S 111. 206, 58 N. E. 985, 52 L. R. A. 
 291 ; State v. McNally, 48 La. Ann. 1450, 21 
 South. 27, 36 L. R. A. 533. And a similar 
 municipal ordinance was held invalid ; Ex 
 parte Kuback, 85 Cal. 274, 24 Pac. 737, 9 
 L. R. A. 482, 20 Am. St. Rep. 226; City of 
 Seattle v. Smyth, 22 Wash. 327, 60 Pac. 1120, 
 79 Am. St. Rep. 939. 
 
 By act of congress of August 1, 1S92, the 
 employment of all laborers and mechanics 
 employed by the United States, the District 
 of Columbia or by any contractor upon any 
 of the public works of the United States or 
 the District of Columbia is limited to eight 
 hours in any one calendar day, except in 
 cases of extraordinary emergency. A viola- 
 tion of this act is made punishable by fine 
 and imprisonment or both. The act was up- 
 held; Ellis v. U. S., 206 U. S. 246, 27 Sup. 
 Ct. 600, 51 L. Ed. 1047, 11 Ann. Cas. 589. 
 A statute somewhat similar was passed June 
 19, 1912. A similar statute of Kansas was 
 held not to infringe the freedom to contract, 
 nor deny the equal protection of the laws; 
 Atkin v. Kansas, 191 U. S. 207, 24 Sup. Ct. 
 124, 48 L. Ed. 148, affirming State v. Atkin, 
 64 Kan. 174, 67 Pac. 519, 97 Am. St. Rep. 
 343. A statute limiting to eight hours a 
 day's work for men in underground mines, 
 or in the smelting, refining or reduction of 
 metals, is constitutional; Ilolden v. Hardy, 
 169 U. S. 366, 18 Sup. Ct. 383, 42 L. Ed. 
 780, affirming State v. Holden, 14 Utah 
 71, 46 Pac. 750, 37 L. R. A. 103; contra, 
 In re Bill Providing that Eight Hours shall 
 Constitute a Day's Labor, 21 Colo. 29, 39 
 Pac. 328. 
 
 The emergency which ^permits days of 
 more than eight hours' work is something 
 more than contemplated emergencies neces- 
 sarily inhering in the work; U. S. v. Gar- 
 bish, 222 U. S. 257, 32 Sup. Ct. 77, 56 L. Ed. 
 190. See Labob Laws. 
 
 EIGNE. A corruption of the French word 
 aine'. Eldest or first-born. 
 
 It is frequently used in our old law-books ; 
 bastard eigne signifies an elder bastard when 
 spoken of two children, one of whom was 
 born before the marriage of his parents and 
 the other after; the latter is called mulier 
 puisne. Littleton, sect. 399. 
 
 EINETIUS. In English Law. The oldest; 
 the first-born. Spelman, Gloss. 
 
 EIRE, or EYRE. In English Law. A 
 journey. See Eyre. 
 
 E I SN E. The senior ; the oldest son. Spell- 
 ed, also, eigne, einsne, aisne, eign. Termes 
 dc la Ley; 1 Kelham. 
 
 EISNETIA, EINETIA (Lat). The share 
 of the oldest son. The portion acquired by 
 primogeniture. Termes de la Ley; Co. Litt. 
 166 6; Cowell. 
 
 EITHER. May be used in the se'nse of 
 each. Chidester v. Ry. Co., 59 111. 87. 
 
 EJECTION. Turning out of possession. 3 
 Bla. Com. 199. See Ejectment. 
 
 EJECTI0NE CUST0DI/E (Lat). A writ 
 of which lay for a guardian to recover the 
 land or person of his ward, or both, where 
 he had been deprived of the possession of 
 them. Fitzh. N. B. 139, L. ; Co. Litt. 199. 
 
 EJECTIONE FIRM/E (Lat ejectment 
 from a farm). This writ lay where lands 
 or tenements were let for a term of years, 
 and afterwards the lessor, reversioner, re- 
 mainderman, or a stranger ejected or ousted 
 the lessee of his term. The plaintiff, if he 
 prevailed, recovered the term with damages. 
 Hence Blackstone calls this a mixed action, 
 somewhat between real and personal; for 
 therein are two things recovered, as well 
 restitution of the "term of years," as dam- 
 ages for the ouster or wrong. This writ is 
 the original foundation of the action of eject- 
 ment 3 Sharsw. Bla. Com. 199; Fitzh. N. 
 B. 220, F, G; Gibson, Eject 3; Stearn, Real 
 Act. 53, 400. 
 
 EJECTMENT (Lat. e, out of, jacere, to 
 throw, cast). A form of action by which 
 possessory titles to corporeal hereditaments 
 may be tried and possession obtained. 
 
 A form of action which lies to regain the 
 possession of real property, with damages 
 for the unlawful detention. 
 
 In its origin, during the reign of Edw. III., this 
 action was an action of trespass which lay for a 
 tenant for years, to recover damages against a per- 
 son who had ousted him of his possession without 
 ■right. To the judgment for damages the courts soon 
 added a judgment for possession, upon which the 
 plaintiff became entitled to a writ of possession. 
 The action of de ejectione firmce (q. v.), was framed 
 to meet the case of the termor, and just at the 
 close of the middle ages it was held that under it he 
 could recover his term. As to its history see 2 Poll. 
 & Maitl. 105. As the disadvantages of real actions 
 as a means of recovering land for the benefit of the 
 real owner from the possession of one who held 
 them without title became a serious obstacle to their 
 use, this form of action was taken advantage of 
 by Ch. J. Rolle to accomplish the same result. 
 
 In the original action, the plaintiff had been oblig- 
 ed to prove a lease from the person shown to have 
 title, an entry under the lease, and an ouster by 
 some third person. The modified action as sanc- 
 tioned by Rolle was brought by a fictitious person 
 as lessee against another fictitious person (the cas- 
 ual ejector) alleged to have committed the ouster. 
 Service was made upon the tenant in possession, 
 with a notice annexed from the casual ejector to ap- 
 pear and defend. If the tenant failed to do this, 
 judgment was given by default and the claimant 
 put in possession. If he did appear, he was allowed 
 to defend only by entering into the consent rule, by 
 which he confessed the fictitious lease, entry, and 
 ouster to have been made, leaving only the title in
 
 EJECTMENT 
 
 977 
 
 EJECTMENT 
 
 question. The tenant by a subsequent statute was 
 obliged, under heavy penalties, to give notice to his 
 lessor of the pendency of the action. 
 
 The action has been superseded in England under 
 the Common Law Procedure Act (1852 §§ 170-220) by 
 a writ, in a prescribed form, addr< i d, on the 
 claimant's part, to the person or persons in posses- 
 sion, by name, and generally "to all persons enti- 
 tled to defend the possession" of the premises there- 
 in described ; commanding such of them as deny the 
 claimant's title to appear in court and defend the 
 possession of the property. Not only the person to 
 whom the writ is directed, but any other person (on 
 filing an affidavit that he or his tenant is in posses- 
 sion, and obtaining the leave of the court or a 
 judge), is allowed to appear and defend. 
 
 lu England, since the Judicature Act, 
 ejectment lias given place to a new action 
 for the recovery of land. 
 
 Ejectment has been materially modified in many 
 of the states, though still retaining the name ; 
 but is retained in its original form in others, and 
 in the United States courts for those states in which 
 it existed when the circuit courts were organized. 
 In some of the states it has never been in use. See 
 3 Bla. Com. 198. 
 
 The action lies for the recovery of cor- 
 poreal hereditaments only ; Carmalt v. Piatt, 
 7 Watts (Pa.) 318; People v. Mauran, 5 
 Denio (N. Y.) 389; including a room in a 
 house; White v. White, 16 N. J. L. 202, 31 
 Am. Dec. 232; upon which there may have 
 been an entry and of which the sheriff can 
 deliver possession to the plaintiff ; Jackson 
 v. Buel, 9 Johns. (N. Y.) 298; Nichols v. 
 Lewis, 35 Conn. 137; and not for incorpo- 
 real hereditaments ; Den v. Craig, 15 N. J. 
 L. 191; Parker v. Packing Co., 17 Or. 510, 
 21 Pac. 822, 5 L. R. A. Gl ; or rights of dow- 
 er; Jackson v. Vanderheyden, 17 Johns. (N. 
 Y.) 167, 8 Am. Dec. 378; Jones v. Hollopeter, 
 10 S. & R. (Pa.) 326; or a right of way; 
 Taylor v. Gladwin, 40 Mich. 232; or a rent 
 reserved ; Van Rensselaer v. Hayes, 5 Denio 
 (N. Y.) 477; or for an easement to use land 
 for a public park ; Canton Co. of Baltimore 
 v. City of Baltimore, 106 Md. 69, 66 Atl. 079, 
 67 Atl. 274, 11 L. R. A. (N. S.) 129; or to 
 put the public in possession of land appro- 
 priated for streets ; Bay County v. Bradley, 
 39 Mich. 163, 33 Am. Rep. 367; City of Ra- 
 cine v. Crotsenberg, 61 Wis. 4S1, 21 N. W. 
 520, 50 Am. Rep. 149 ; or of an ocean beach ; 
 Trustees of the Freeholders and Commonalty 
 of Southampton v. Betts, 163 N. Y. 454 ; 57 
 N. E. 762. Ejectment may be maintained for 
 the possession of a street dedicated to the 
 public use; City of Eureka v. Armstrong, 83 
 Cal. 623, 22 Pac. 928, 23 Pac. 10S5; City and 
 County of San Francisco y. Grote, 120 Cal. 
 59, 52 Pac. 127, 41 L. R. A. 335, 65 Am. St. 
 Rep. 155. So in Village of Lee v. Harris, 
 206 111. 428, 69 N. E. 230, 99 Am. St. Rep. 
 176 ; French v. Robb, 67 N. J. L. 260, 51 Atl. 
 509, 57 L. R. A. 95l>, 91 Am. St. Rep. 433; 
 City of Winona v. Huff, 11 Minn. 119 (Gil. 
 24). It is said that the right to the pos- 
 session, use and control of highways is pri- 
 marily in the state, and that the state, hav- 
 ing by express grants vested in the cities 
 Bouv.— 62 
 
 and villages of the state the possession, use 
 and control of their streets and alleys, the 
 right of possession, use and control i- re 
 garded as a Legal and not a mere equitable 
 right, and that in that view, no reason ex- 
 ists why the action of ejectment ma; 
 he maintained, though the city or village 
 had not the legal title; Village of !-• 
 Harris, 206 111. 428, 69 X. E I Am. 
 
 St. Rep. 176; and see City of Cleveland v. K. 
 Co., 93 Fed. 113 (reversed on other grounds 
 in City of Cleveland v. R. Co., 147 Fed. L71, 
 77 C. C. A. 467, holding that ejectment will 
 lie by a city for the recovery of i 
 of its streets, though the effect of the dedi- 
 cation was to give the city only an easement. 
 
 One is liable in ejectment for the projec- 
 tion of his roof over another's land; Murphy 
 v. Bolger, 60 Vt 723, 15 Atl. 365, 1 L. 11. a. 
 309; contra, Rasch v. Xoth, 99 Wis. 285, 7 1 
 N. W. 820, 40 L. R. A. 577. 67 Am. St. Rep. 
 858; or for the encroachment of the founda- 
 tions of a building on the land of another, 
 though entirely below the surface; Wach- 
 stein v. Christopher, 128 Ga. 229, 57 S. E. 
 511, 11 L. R. A. (N. S.) 917, 119 Am. St. 
 Rep. 381; or to secure the removal of wires 
 strung through the air over one's property, 
 though the supports are on adjoining land : 
 Butler v. Tel. Co., 186 N. Y. 4S6, 79 N. E. 
 716, 11 L. R. A. (N. S.) 920, 116 Am. St. Rep. 
 563, 9 Ann. Cas. 858. 
 
 It may be brought upon a right to an es- 
 tate in fee-simple, fee-tail, for life, or for 
 years, if only there be a right of entry and 
 possession in the plaintiff ; McMillan's Les- 
 see v. Robbins, 5 Ohio, 28; Matthews v. 
 Ward, 10 Gill & J. (Md.) 443; Miller v. 
 Shaekleford, 3 Dana (Ky.) 2S9 : Middleton 
 v. Johns, 4 Gratt. (Va.) 129: Batterton v. 
 jl oakum, 17 111. 288; Sears v. Taylor, 4 Cal 
 38; but the title must be a legal one: Wrighl 
 v. Douglass, 3 Barb. (X. Y.) 554; Botts v. 
 Shield's Heirs, 3 Litt. (Ky.) 32; Thompson 
 v. Wheatley, 5 Smedes & M. (Miss.) 499; 
 Middleton v. Johns, 4 Gratt (Va.) 129; 
 Foster v. Mora, 98 U. S. 425, 25 L. Ed. 191 ; 
 Hollingsworth v. Walker, 98 Ala. 543, 13 
 South. 6; Collins v. Ballow, 72 Tex. 330, 1" 
 S. W. 24S; Anson v. Townsend. 73 Cal. 415, 
 15 Pac. 49; Johnson v. Christian. 12S U. S. 
 374, 9 Sup. Ct. 87, .".2 L. Ed. 412 (but in 
 Pennsylvania a valid equitable title will sus- 
 tain ejectment, on the ground, as has been 
 said, that, there is no court of chancery in 
 that state; Peebles v. Reading, 8 S. & It. 
 [Pa.] 4S4; Chase v. Irvin, 87 Pa. 286) ; which 
 existed at the commencement of the suit; 
 Carroll v. Norwood's Heirs, 5 Ilarr. & J. 
 (Md.) 155; McCulloch v. Cowher, 5 W. & S. 
 (Pa.) 127; Pitkin v. Yaw, 13 111. 251; Lauds- 
 sini v. Doe, 25 Miss. 177, 57 Am. Dec. 200; 
 Layman v. Whiting. 20 Barb. (X. Y.) 559; 
 Collins v. Ballow, 72 Tex. 330, 10 S. W. 2 is; 
 Green v. Jordan, S3 Ala. 220, 3 South. 513, 3 
 Am. St Rep. 711; Buxton v. Carter, 11 Mo.
 
 EJECTMENT 
 
 97S 
 
 EJECTMENT 
 
 4S1 (but he cannot recover if the title is 
 terminated pending the action; Brunson v. 
 Morgan, 86 Ala. 318, 5 South. 495); at the 
 date of the demise; Anderson v. Turner, 3 
 A. K. Marsh. (Ky.) 131; Hargrove v. Powell, 
 19 N. C. 97; Wood v. Morton, 11 111. 547; 
 Scisson v. McLaws, 12 Ga. 166; Fenn v. 
 Holme, 21 How. (U. S.) 481, 16 L. Ed. 198; 
 and at the time of trial ; Ratcliff v. Trimble, 
 12 B. Monr. (Ky.) 32; Beach v. Beach, 20 
 Vt 83; Cresap's Lessees v. Hutson, 9 Gill 
 (Md.) 269; and it must be against the per- 
 son having actual possession ; Den v. Ste- 
 phens, 18 N. C. 5; Den v. Oliver, 10 N. C. 
 479; McDowell v. King, 4 Dana (Ky.) 67; 
 McDaniel v. Reed, 17 Vt. 674; Huff v. Lake, 
 9 Humphr. (Tenn.) 137;' Hyde v. Folger, 4 
 McLean 255, Fed. Cas. No. 6,971; Lucas v. 
 Johnson, 8 Barb. (N. Y.) 244; Losee v. Mc- 
 larland, 86 Pa. 33. A railroad company 
 which has condemned lands for railroad pur- 
 poses has a sufficient title to sustain an ac- 
 tion ; Pittsburgh, Ft. W. & C. Ry. Co. v. Peet, 
 152 Pa. 488, 25 Atl. 612, 19 L. R. A. 467. 
 
 Plaintiff in ejectment may recover as 
 against a mere trespasser, on proof of his 
 former possession only, without regard to 
 his title; Green v. Jordan, 83 Ala. 220, 3 
 South. 513, 3 Am. St. Rep. 711; Wilson v. 
 Fine, 38 Fed. 789; Nolan v. Pelhain, 77 Ga. 
 262, 2 S. E. 639; Ratcliff v. Iron Works Co., 
 87 Ky. 559, 10 S. W. 365 ; Parker v. Ry. Co., 
 71 Tex. 132, 8 S. W. 541; Bradshaw v. Ash- 
 ley, 180 U. S. 59, 21 Sup. Ct. 297, 45 L. Ed. 
 423. 
 
 The real plaintiff must recover on the 
 strength of his own title; King v. Mullins, 
 171 U. S. 404, 18 Sup. Ct. 925, 43 L. Ed. 214 ; 
 and cannot rely on the weakness of the de- 
 fendant's; 1 East 246; Lane v. Reynard, 2 
 S. & R. (Pa.) 65; Boardman v. Bartlett, 6 
 Vt. 631; Den v. Sinnickson, 9 N. J. L. 149; 
 Winton v. Rodger's Lessee, 2 Ov. (Tenn.) 
 185 ; Hall v. Gittings' Lessee, 2 H. & J. (Md.) 
 112; Doe v. Ingersoll, 11 Smedes & M. 
 (Miss.) 249, 49 Am. Dec. 57; Clarke v. Diggs, 
 28 N. C. 159, 44 Am. Dec. 73 ; Woodworth v. 
 Fulton, 1 Cal. 295; Garrett v. Lyle, 27 Ala. 
 586; Jones v. Lofton, 16 Fla. 1S9 ; Holly 
 River Coal Co. v. Howell, 36 W. Va. 489, 15 
 S. E. 214; Dunbar v. Green, 198 U. S. 166, 
 25 Sup. Ct. 620, 49 L. Ed. 998; and must 
 show an injury which amounts in law to an 
 ouster or dispossession ; Cooley v. Penfield, 
 1 Vt. 244; Moore v. Gilliam, 5 Munf. (Va.) 
 346 ; Edwards v. Bishop, 4 N. Y. 61 ; Lykens 
 v. Whelan, 15 Pa. 483 ; an entry under a con- 
 ' tract which the defendant has not fulfilled 
 being equivalent; Jackson v. Moncrief, 5 
 Wend. (N. Y.) 26; Marlin v. Willink, 7 S. &' 
 R. (Pa.) 297; Harle v. McCoy, 7 J. J. Marsh. 
 (Ky.) 318, 23 Am. Dec. 407; Dennis v. Ward- 
 er, 3 B. Monr. ( Ky.) 173 ; Den v. Westbrook, 
 15 N. J. L. 371, 29 Am. Dec. 692; Baker v. 
 Gittings' Lessee, 16 Ohio 4S5; Prentice v. 
 Wilson, 14 111. HI. 
 
 It may be maintained by one joint tenant 
 
 or tenants in common against another who 
 has dispossessed him ; White's Lessee v. 
 Sayre, 2 Ohio 110; Barnitz v. Casey, 7 Cra. 
 (U. S.) 456, 3 L. Ed. 403; Clark v. Vaughan, 
 3 Conn. 191; Den v. Bordine, 20 N. J. L. 
 394 ; Edwards v. Bishop, 4 N. Y. 61 ; Peterson 
 v. Laik, 24 Mo. 541, 69 Am. Dec. 444; Avery 
 v. Hall, 50 Vt. 11. Co-tenants need not join 
 as against a mere disseisor ; Smith v. Stark- 
 weather, 5 Day (Conn.) 207; Chesround v. 
 Cunningham, 3 Blackf. (Ind.) 82; Craig v. 
 Taylor, 6 B. Monr. (Ky.) 457; but mere ten- 
 ants in common may ; Hicks v. Rogers, 4 
 Cra. (U. S.) 165, 2 L. Ed. 583; Innis v. Craw- 
 ford, 4 Bibb (Ky.) 241; Camp v. Homesley, 
 3a N. C. 211. It may be maintained by the 
 wife against the husband to recover her sep- 
 arate real estate; Crater v. Crater, 118 Ind. 
 521, 21 N. E. 290, 10 Am. St. Rep. 161. 
 
 A court of law will not uphold or enforce 
 an equitable title to land as a defence to 
 an action of ejectment ; Johnson v. Christian, 
 128 U. S. 374, 9 Sup. Ct. 87, 32 L. Ed. 412 ; 
 Doe v. Aiken, 31 Fed. 393 ; contra, Brolaskey 
 v. McClain, 61 Pa. 146; but see, Brame v. 
 Swain, 111 N. C. 542, 15 S. E. 938; Hamilton 
 v. Williford, 90 Ga. 210, 15 S. E. 753. In 
 Pennsylvania, ejectment lies on an equitable 
 title and is the full equivalent of a bill in 
 equity; Winpenny v. Winpenny, 92 Pa. 440. 
 Where a defendant has entered a disclaim- 
 er of title and possession, he cannot defend 
 his possession as agent of his wife without 
 first showing a title in her; Duncan v. Sher- 
 man, 121 Pa. 520, 15 Atl. 565. 
 
 Where a defendant in ejectment repudi- 
 ates a tenancy and claims a title in fee, he 
 dispenses with the necessity of notice to 
 quit; McGinnis v. Fernandes, 126 111. 22S, 
 19 N. E. 44; Simpson v. Applegate, 75 Cal. 
 342, 17 Pac. 237. 
 
 Plaintiff in ejectment in proving title need 
 not go further back than the common source 
 of title, where the defendant claims under 
 the same person ; Johnson v. Cobb, 29 S. C. 
 372, 7 S. E. 601 ; Luen v. Wilson, 85 Ky. 503, 
 3 S. W. 911 ; Laidley v. Land Co., 30 W. Va. 
 505, 4 S. E. 705; Blalock v. Newhill, 78 Ga. 
 245, 1 S. E. 383; Drake v. Happ, 92 Mich. 
 580, 52 N. W. 1023. 
 
 In case title is denied, it cannot be prov- 
 ed by merely producing a deed, but when 
 such a deed is produced from a grantor who 
 was in possession, or where possession was 
 taken and held under such deed, and the 
 premises in the deed are clearly identified, 
 then a prima facie title is shown; Hartley 
 v. Ferrell, 9 Fla. 374; McFarlane v. Ray, 14 
 Mich. 465; Hall v. Kellogg, 16 Mich. 135; 
 Cottrell v. Pickering, 32 Utah 62, 88 Pac. 
 696, 10 L. R. A. (N. S.) 404. 
 
 The pica of not guilty raises the general 
 issue; Zeigler v. Fisher's Heirs, 3 Pa. 365; 
 King v. Kent's Heirs, 29 Ala. 542. 
 
 The judgment is that the plaintiff recover 
 his term and damages; Battin v. Bigelow, 
 Pet. C. C. 452, Fed. Cas. No. 1,108 ; Congrega-
 
 EJKCTMENT 
 
 979 
 
 ELDER BRETHREN 
 
 t i « > 1 1 : 1 1 Soc. in Newport v. Walker, IS Vt. GOO; 
 Livingston v. Tanner, 12 Barb. (N. Y.) 481; 
 Carroll v. Carroll, 16 How. (U. Sj 275, 14 
 L. Ed. 936; or damages merely where the 
 the term expires during suit ; Jackson v. 
 Davenport, 18 Johns. (N. Y.) 295. 
 
 Where the fictitious form is abolished, how- 
 ever, the possession of the land generally is 
 recovered, and the recovery may be of part 
 of what the demandant claims; Treon's Les- 
 see v. Emerick, 6 Ohio 391 ; Thornton's Les- 
 see v. Edwards. 1 II. & McH. (Md.) 158; 
 Vrooman v. Weed. 2 Barb. (N. Y.) 330; 
 Lenoir v. South, 32 X. < \ 237; Little v. Bish- 
 op, 9 B. Monr. (Ky.) 240; Loard v. Philips, 
 4 Sneed (Tenn.) 566; Messick v. Thomas, 84 
 Va. 891, G S. E. 482. 
 
 The damages are, regularly, nominal mere- 
 ly ; and in such case an action of trespass 
 for mesne profits lies to recover the actual 
 damages; Baron v. Aheel, 3 Johns. (N. Y.) 
 481, 3 Am. Dec. 515; Shipley v. Alexander, 
 3 Harr. & J. (Md.) 84, 5 Am. Dec. 421; .Mil- 
 ler v. Melchor, 35 N. C. 439; Davis v. Doe, 
 25 Miss. 445 ; Saunders v. Lee, 101 N. C. 3, 
 7 S. E. 590; Gooch v. Botts, 110 Mo. 419, 
 20 S. W. 192; Roach v. Heffernan, 65 Vt. 
 485, 27 Atl. 71. See Trespass fob Mesne 
 Profits ; Adverse Possession. 
 
 In some states, however, full damages may 
 be assessed by the jury in the original ac- 
 tion ; Congregational Soc. in Newport v. 
 Walker, 18 Vt. GOO; Livingston v. Tanner, 
 12 Barb. (N. Y.) 4S1 ; Jenkins v. Means, 59 
 Ga. 55; Emrich v. Ireland, 55 Miss. 390; 
 Whissenhunt v. Jones, 78 N. C. 3G1 ; and the 
 verdict is conclusive as to the damages; 
 Mills v. Fletcher, 100 Cal. 142, 34 Pac. G37. 
 
 For the history of ejectment, see 3 Sel. 
 Essays in Anglo-Amer. L. Hist. 611. 
 
 EJECTUM. That wbich is thrown up by 
 the sea. Warder v. La Belle Creole, 1 Pet. 
 Adm. Dec. 43, Fed. Cas. No. 17,1G3. See 
 Jetsam. 
 
 EJERCIT0RIA. In Spanish Law. The ac- 
 tion which lies against the owner of a ves- 
 sel for debts contracted hy the master, or 
 contracts entered into by him, for the pur- 
 pose of repairing, rigging, and victualling 
 the same. 
 
 EJUSDEM GENERIS (Lat). Of the same 
 kind. 
 
 In the construction of law?, wills, and other in- 
 struments, general words following an enumeration 
 of specific things are usually restricted to things of 
 the same kind (ejusdem generis) as those specifi- 
 cally enumerated. 
 
 So, in the construction of wills, when certain ar- 
 ticles are enumerated, the term goods is to be re- 
 stricted to those ejusdem generis. Bacon, Abr. Leg- 
 acies, B ; Minor's Ex'x v. Dabney, 3 Rand. (Va.) 
 191 ; 2 Atk. 113 ; 3 id. 61. See Interpretation ; Ex 
 Cetera. 
 
 ELDER BRETHREN. A distinguished 
 body of men, elected as masters of Trinity 
 House, an institution incorporated in the 
 reign of Henry VIII., charged with numerous 
 
 important duties relating to the marine, such 
 as the superintei Lighthouses. Mozl. 
 
 & W. Di<r. ; 2 Steph. The full title 
 
 of the corporation is Elder Brethren of the 
 Holy and Undivided Trinity, it i 
 a master, deputy master, a certain number 
 of acting elder brethren, and of honorary 
 elder brethren, with an unlimited in. 
 of younger brethren, the master and honor- 
 ary elder brethren being cho 
 of eminent social position, and . 
 by the court of elder brethren. The deputy 
 master and elder brethren are chosen from 
 such of the younger brethren as have been 
 commanders in the navy four years previ- 
 ously, or have served as master in the mer- 
 chant service on foreign voyages for at leasl 
 four years. The younger brethren are chos- 
 en from officers of the navy or the merchant 
 shipping service who possess certain qualifi- 
 cations. Their action is subjeel to an ap- 
 peal to the Board of Trade. Two of the 
 elder brethren assist the court of admiralty 
 at the hearing of every suit for collision, 
 and occasionally in suits for salvage. Their 
 duty is to guide the court by advice only : 
 though influential, their opinion is not Legal- 
 ly binding on the judges. 
 
 ELDEST. He or she who has the great- 
 est age. 
 
 The eldest son of a man is his first-born, 
 the primo-genitw ; L. R. 2 App. Cas. 698; L. 
 R. 12 Ch. Div. 171. See Primogi :.\m jbe. 
 
 ELECTED. In its ordinary signification 
 
 this word carries with it the idea of a vote. 
 generally popular, sometimes more restrict 
 ed, and cannot be held the synonym of any 
 other mode of filling a position. State v. 
 Irwin, 5 Nev. 121; Magruder v. Swann, 25 
 Md. 214. 
 
 ELECTION. Choice; selection. The se- 
 lection of one person from a specified class 
 to discharge certain duties in a state, cor- 
 poration, or society. 
 
 The word, in its ordinary signification, carries the 
 idea of a vote, and cannot be held the synonym of 
 any other mode of filling a position; State v. Irwin, 
 5 Nev. 111. See People v. Molitor, 23 Mich. 341 ; 
 Appointment. Election has often been construed to 
 mean th% act of casting and receiving the ballots,— 
 the actual time of voting, not the date of the certifi- 
 cate of election. State v. Tucker, 54 Ala. 
 
 Both houses of congress, and parliamentary bodies 
 in general, claim to be the sole judges of the elec- 
 tion of their own members. This right seems to be 
 derived from the declaration of rights, delivered by 
 the commons to the king in 1604. Brown, Law Diet. 
 
 In the United States this power is vested in con- 
 gress and the state legislatures by the federal and 
 state constitutions, and chancellor Kent considers 
 that "there is no other body known to the constitu- 
 tion to which such power might safely be trusted. 
 It is requisite to preserve a pure and genuine rep- 
 resentation, and to control the evils of irr. 
 corrupt, and tumultuous elections; and as each 
 house acts in these cases in a judicial character, its 
 decisions, like the decisions of any other court of 
 justice, ought to be regulated by known principles 
 of law, and strictly adhered to for the sake of uni- 
 formity and certainty ;" 1 Com. 235. On the other 
 hand, experience of the temptation to defeated mem-
 
 ELECTION 
 
 980 
 
 ELECTION 
 
 bers, which makes contests, in reliance (unfortu- 
 nately too often well-founded) upon the irresponsi- 
 bility of party majorities, leads Mr. Justice Miller to 
 remark that: "This provision . . . seems, from 
 the experience of the past, to have been one of those 
 principles adopted from the English house of com- 
 mons which has not worked well with our institu- 
 tions, and which the house of commons itself has 
 been obliged to abandon. Contested elections are 
 now, by the law of England, tried before the judi- 
 ciary, and the judgment of the court is conclusive 
 upon the subject. It is conceded on all hands that 
 justice is in this way more nearly administered 
 with accuracy than it was under the former system. 
 Both in that country and in this, under the former 
 method, the result of a contested election has been 
 very generally forecast by a knowledge of the rela- 
 tions of the parties contesting to the political ma- 
 jority or minority of the house in which the contest 
 is carried on. As this is a constitutional provision, 
 however,- there exists no power in the legislature, 
 without an amendment of that instrument, to refer 
 these contested cases to the judiciary. The increas- 
 ing number of contested election cases arising out 
 of frauds supposed to be perpetrated at the elec- 
 tions themselves, the investigation of which is al- 
 ways difficult, and the uncertainty of a fair and 
 impartial decision . . . render it doubtful wheth- 
 er the entire provision on this subject is of any 
 value." Miller, Const. 193. 
 
 Much may be said in support of the views of each 
 of these learned commentators, and there is a pos- 
 sible middle ground practicable under existing con- 
 stitutional conditions, which might be suggested. 
 That would be to provide for a judicial determina- 
 tion of the contest in the first instance, reserving to 
 the legislative body the final decision only on ex- 
 ception or appeal under such limitations as would 
 preserve and emphasize the judicial character of 
 the proceeding. This would, on the one hand, pre- 
 serve the absolute independence of the legislature 
 as one of three co-ordinate branches of the govern- 
 ment, — a basic principle, it may be remarked, of 
 American and not of English governmental policy,— 
 and at the same time add to the difficulty and prob- 
 ably lessen the frequency of partisan decisions, 
 contrived in the comparative secrecy of committee 
 rooms and consummated by the mere brute force of 
 a majority. 
 
 Election of Public Officers. The right to 
 vote is not a natural one but is derived from 
 constitutions and statutes; it is not a privi- 
 lege protected by the Fourteenth Amend- 
 ment; Minor v. Happersett, 21 Wall. 163, 
 22 L. Ed. G27. Each state determines for it- 
 self the qualifications of its voters, and the 
 United States adopts the state law upon the 
 subject as the rule in federal elections in 
 accordance with Section 2, article 1 of the 
 Constitution of the United States, which pro- 
 vides that "the house of representatives shall 
 be composed of members chosen every sec- 
 ond year by the people of the several states, 
 and the electors in each state shall have the 
 qualifications required for electors of the 
 most numerous branch of the state legisla- 
 ture." 
 
 The power of the state governments, how- 
 ever, to prescribe the qualifications of elec- 
 tors is limited by the Fifteenth Amendment 
 of the Constitution which provides "that the 
 right of citizens of the United States to vote 
 shall not be denied or abridged by the Unit- 
 ed States or by any state, on account of 
 race, color, or previous condition of servi- 
 tude." This provision renders void all pro- 
 
 visions of a state constitution or a state law 
 which come in conflict with it or With any 
 act of congress passed to enforce it; Mc- 
 Crary, Elections 2; Ex parte Yarbrough, 110 
 U. S. 663, 4 Sup. Ct 152, 28 L. Ed. 274. In 
 the territories the right to vote is regulated 
 by congress. 
 
 The right to vote, if once given by a state 
 constitution, cannot be impaired or taken 
 away by legislation. But the legislature can 
 regulate the right to vote in a reasouable 
 way by prescribing questions to be propound- 
 ed to voters to test their qualifications ; 
 State v. Lean, 9 Wis. 279; or by requiring 
 them to swear to support the Constitution 
 of the United States, or by requiring regis- 
 tration. But regulations must not in any 
 way impair the right to vote, and hence it 
 has been held that an act prohibiting from . 
 voting those who, having been drafted into 
 the military service and duly notified, had 
 failed to report for duty, was void ; McCaf- 
 ferty v. Guyer, 59 Pa. 109. An act requiring 
 the voter to declare under oath that he is 
 not guilty of any crime and has not volun- 
 tarily borne arms against the United States 
 has also been held void; Rison v. Farr, 24 
 Ark. 161, 87 Am. Dec. 52. But see Randolph 
 v. Good, 3 W. Va. 551. The right to vote 
 can, however, be limited to male citizens or 
 extended to females, but" only upon the same 
 terms and conditions as are applied to 
 males ; U. S. v. Anthony, 11 Blatch. 200, Fed. 
 Cas. No. 14,459 ; Minor v. Happersett, 53 Mo. 
 58; Wheeler v. Brady, 15 Kan. 26; Lyman 
 v. Martin, 2 Utah, 136. Different qualifica- 
 tions for persons to vote upon the question 
 of licensing the sale of intoxicating liquors, 
 from those prescribed in a state constitution 
 for electors of public officers, may be pre- 
 scribed by a legislative act; Willis v. Kalm- 
 bach, 109 Va. 475, 64 S. E. 342, 21 L. R. A. 
 (N. S.) 1009; but the legislature may not 
 prescribe additional qualifications for voters 
 to those fixed in the constitution; Johnson 
 v. Grand Forks County, 16 N. D. 363, 113 N. 
 W. 1071, 125 Am. St. Rep. 662. 
 
 The qualifications of voters in the different 
 states are usually citizenship, residence for 
 a given period, age (21 years), sometimes 
 payment of taxes, ownership of land, and 
 education, and mental capacity. See Grand- 
 father Clause. 
 
 As to woman suffrage, see that title. 
 See Citizen ; Residence ; Naturalization ; 
 Domicil. 
 
 Elections must be held at the time and 
 place required by law. Legislative or con- 
 stitutional provisions on this questior are 
 mandatory; Chase v. Miller, 41 Pa. 403; 
 Opinion of the Judges, 30 Conn. 591 ; and 
 votes cast by soldiers in the field, outside of 
 the state, under a statute permitting it, are 
 not valid, when the constitution requires a 
 citizen to vote at his place of residence. In 
 the absence of any constitutional provision
 
 ELECTION 
 
 981 
 
 ELECTION 
 
 a statute providing that soldiers in service 
 niay vote is valid ; Morrison v. Springer, 15 
 la. 304. 
 
 A soldier making his permanent residence 
 at a soldiers' home does not thereby acquire 
 a right to vote in the precinct where the in- 
 stitution is situated; Powell v. Spackman, 
 7 Idaho 692, 65 Pac. 503, 54 L. R. A. 37& 
 
 If polls are moved to a place not author- 
 ized, the election becomes void ; Melvin'S 
 Case, GS Pa. 333; if the polls are not kept 
 open as required by law, the election will be 
 set aside, if enough votes were thereby ex- 
 cluded to change or render doubtful the re- 
 sult; Knowles v. Yates, 31 Cal. 82; Melvin's 
 Case, G8 Pa. 333; but see State v. Smith, 4 
 Wash. 6G1, 30 Pac. 1064; but it is doubtful 
 whether a few minutes' delay in opening the 
 polls will avoid an election; 5 Eng. El. Cas. 
 3S7; 4 id. 378. Closing polls too soon; Cle- 
 land v. Porter, 74 111. 7G, 24 Am. Rep. 273; 
 or during the dinner hour will not vitiate 
 the election; Fry v. Booth, 19 Ohio St. 25. 
 But the casting of epough votes after the 
 proper hour for closing to change the result 
 will; Contested Election of Locust Ward, 4 
 Pa. L. J. 341. See 3 Cong. El. Cas. 564. 
 
 Generally speaking, notice is essential to 
 the validity of an election : McCrary, Elect. 
 87 ; and all qualified voters who absent 
 themselves from an election duly called are 
 presumed to assent to the expressed will 
 of the majority of those voting, even though 
 only a minority of those entitled to vote 
 really do vote; Walker v. Oswald, 68 Md. 
 146, 11 Atl. 711 ; but formalities or even the 
 absence of notice may be dispensed with, 
 where there has been an actual election by 
 the people ; Dishon v. Smith, 10 la. 212. See 
 Seymour v. Tacoma, 6 Wash. 427, 33 Pac. 
 1059; Woodward v. Sanitary Dist, 99 Cal. 
 554, 34 Pac. 239; but it would seem that, if 
 by a default of notice, enough voters were 
 deprived of a chance to vote, to change the 
 result, the election would be void; McCrary, 
 Elect. 88. The fact that an order providing 
 for an election of the board of education 
 was passed by less than a quorum of the 
 board, does not affect the validity of the 
 election, where it is held at the time provid- 
 ed by statute and there is no statute provi- 
 sion requiring the order to be made ; Acker- 
 man v. Haenck, 147 111. 514, 35 N. E. 3S1. In 
 California, in a much considered case, it 
 was held that voters must take notice of 
 general elections prescribed by law, and in 
 such cases provisions of the laws as to no- 
 tice are merely directory; but that in elec- 
 tions to fill vacancies, the requirements as to 
 notice must be fully complied with; People 
 v. Weller, 11 Cal. 49, 70 Am. Dec. 754. In 
 this case it was further held that, without 
 statutory regulations, no election can be 
 held. See also People v. Martin. 12 Cal. 409 ; 
 Com. v. Smith, 132 Mass. 2S9 ; City of Lafa- 
 yette v. State, 69 Ind. 218 ; Jones v. Gridley, 
 20 Kan. 584 ; Bolton v. Good, 41 N. J. L. 296 ; 
 
 People v. Crissey, 91 X. Y. 616. An election 
 to fill a vacancy cannot be held where 
 vacancy did not occur long enough before the 
 election to enable due notice to be given : 
 Beal v. Ray, 17 Ind. 554; People v. Martin, 
 
 12 Cal. 409. A failure i" give more than 
 three days' notice may not be fatal to tin- 
 election, if there was full knowledge thereof 
 ami a full vote; State v. Carroll, 17 B. I. 
 591, 24 Atl. 835. 
 
 Slight irregularities in the manner of con- 
 ducting elections, if not fraudulent, will not 
 avoid an election; Paine. Elect. 502. For in- 
 stance, the presence of one of the candidates 
 in the room where the election was held, and 
 the fact that he intermeddled with tl i 
 lots, was hold not to vitiate the poll, there 
 not appearing to have been any actual fraud : 
 Bright. Elect. Cas. 2G8. Irregularities which 
 do not tend to affect results, will not defeal 
 the will of the majority ; Juker v. Com., 20 
 Pa. 493. Where a special election was not 
 called by legal authority, the fact that the 
 people voted for the several candidates, will 
 not render the election valid ; People v 
 Palmer, 91 Mich. 2S3, 51 N. W. 999. 
 
 A majority of voters is necessary to pass 
 a constitutional amendment, by a popular 
 vote, but it will be presumed that the num- 
 ber of those who voted is the number of the 
 qualilied voters; 22 Alb. L. J. 147: see as to 
 the latter point, St. Joseph Township v. Rog- 
 ers, 16 Wall. (U. S.) G44, 21 L. Ed. 328. But 
 there may be a constitutional or statutory 
 method prescribed for ascertaining a ma- 
 jority, in which case the presumption stated 
 does not apply. Thus, in Delaware, a major- 
 ity to determine whether a constitutional 
 convention shall be called is to be ascertain- 
 ed by the highest vote cast at any one of the 
 last three preceding elections; Const. 1831. 
 
 As to whether, when the person receivint: 
 the highest number of votes is Ineligible, 
 the person receiving the next highest num- 
 ber of votes is thereby elected: In England 
 it is held that the second highest is elected 
 only when it is affirmatively shown that the 
 voters for the candidate highest in voies had 
 such actual knowledge of his ineligibility 
 that they must be taken to have thrown 
 away their votes wilfully; L. R. 3 Q. P.. 629; 
 so in People v. Clute, 50 N. Y. 451, 10 Am. 
 Rep. 508. But in other cases this distinction 
 has not been regarded, and it has been held 
 that the election is void ; Saunders v. Haynes. 
 
 13 Cal. 145; Sublett v. Bedwell, -17 Miss. 266, 
 
 12 Am. Rep. 338; People v. Molitor, 23 Mich. 
 341; State v. Bell, 1G9 Ind. 01. 82 N. K. 69, 
 
 13 L. P. A. (X. S.I 1013, 124 Am. St Rep. 
 203. The letter opinion is stated by Cooley 
 (Const. Lim.) and Dillon (Mun. Corp.) to be 
 in accordance with this fiew. This rule was 
 followed in Rhode Island in the presidential 
 election of 1S7<">; In re Corliss. 10 Am. L. 
 Reg. 15, with a note by Judge Mitchell. It 
 was therein also held that the ineligibility 
 at the time of election cannot be removed by
 
 ELECTION 
 
 982 
 
 ELECTION 
 
 a subsequent resignation of the office which 
 constituted the ineligibility. 
 
 Where a candidate who receives the high- 
 est number of votes dies on election day, 
 that candidate for the same office who re- 
 ceives the next highest number of votes is 
 not elected ; State v. Speidel, 62 Ohio St. 156, 
 56 X. E. 871. 
 
 Where there is a tie vote and one of the 
 candidates refuses to participate in the 
 drawing prescribed by statute, the office can- 
 not thereby be declared vacant, and an ap- 
 pointment to fill such alleged vacancy is in- 
 valid ; Com. v. Meanor, 167 Pa. 292, 31 Atl. 
 552. 
 
 The legislative precedents as to the effect 
 of ineligibility are not uniform. See Sublett 
 v. Bedwell, 47 Miss. 266, 12 Am. Rep. 338; 
 People v. Clute, 50 N. Y. 451, 10 Am. Pep. 
 50S. 
 
 An act providing for the registration of 
 voters, either local or general in its opera- 
 tion, is within the legislative power and con- 
 stitutional ; Cowan v. Prowse, 93 Ky. 156, 
 19 S. W. 407. 
 
 The election laws of the United States of 
 1870 and 1871, for supervising the election 
 of representatives, now repealed, were con- 
 stitutional ; Ex parte Siebold, 100 U. S. 371, 
 25 L. Ed. 717. 
 
 A wager upon the result of an election, 
 being contrary to public policy, is void; 
 Bunn v. Piker, 4 Johns. (N. Y.) 426, 4 Am. 
 Dec. 292; Johnston v. Russell, 37 Cal. 670; 
 Reynolds v. McKinney, 4 Kan. 94, 89 Am. 
 Dec. 602. All contracts tending to corrupt 
 elections are also void ; Nichols v. Mudgett, 
 32 Vt. 546. In Pennsylvania and other 
 states one betting on the result of an elec- 
 tion is disfranchised as a voter thereat. 
 
 See Corrupt Practices. 
 
 Election Officers. Canvassing officers and 
 return judges are ministerial officers only ; 
 they exercise no judicial or discretionary 
 function; Cooley, Const. Lim. 7S3 ; State v. 
 Steers, 44 Mo. 223 ; Morgan v. Quackenbush, 
 22 Barb. (N. Y.) 72; Clark v. Board of Ex- 
 aminers of Hampden County, 126 Mass. 282. 
 It is said they may judge whether the re- 
 turns are in due form ; People v. Head, 25 
 111. 328. The acts of such officer, within 
 the scope of his authority, are presumed to 
 be correct ; . Littell v. Robbins, 1 Bartl. 138. 
 In some states, canvassing officers have the 
 power to revise the returns, hear testimony, 
 and reject illegal votes ; it is so in Texas, 
 Alabama, Louisiana, and Florida ; McCrary, 
 Elect. 67. Where election officers have en- 
 forced an erroneous view as to the qualifica- 
 tions of voters, whereby legal voters are not 
 permitted to vote, an election may be set 
 aside, especially if it appear that such votes 
 would have changed or rendered doubtful 
 the result of the election ; Bright. Elect. Cas. 
 455 ; McCrary, Elect. 68. A canvassing board 
 wbich has counted a vote and declared the 
 
 result, is functus officio. It cannot make a 
 recount; Boweu v. Hixon, 45 Mo. 340; Ilad- 
 ley v. City of Albany, 33 N. Y. 603, 88 Am. 
 Dec. 412; State v. Donnewirth, 21 Ohio St. 
 216. 
 
 It is a general rule that the errors of a 
 returning officer shall not prejudice the 
 rights of innocent voters; CI. & H. 329; (see 
 Behrensmeyer v. Kreitz, 135 111. 591, 26 N. 
 E. 704; Ackerman v. Haenck, 147 111. 514, 
 35 N. E. 3S1) ; as where it was the duty of 
 the officer to return the votes sealed and he 
 returned them unsealed, it was held that in 
 the absence of any suspicion of fraud the re- 
 turn was good. Also where a state prescrib- 
 ed a certain form of certificate to be execut- 
 ed by the election officer, it is sufficient if 
 the certificate is substantially in that form, 
 and if an election officer insert by accident 
 the wrong name in his return of the persons 
 voted for, the mistake may be corrected ; CI. 
 & H. Elect. Cas. 229, 369. 
 
 But it has also been held that where a stat- 
 ute requires the election officer to place on 
 each ballot the number corresponding with 
 the number of the voter, the failure so to 
 number will deprive the voter of his rights ; 
 Ledbetter v. Hall, 62 Mo. 422 ; West v. Ross, 
 53 Mo. 350. All regulations intended to se- 
 cure the purity of elections are of vital im- 
 portance and must be enforced to the letter ; 
 Jones v. State, 1 Kan. 273, 279; Gilleland v. 
 Schuyler, 9 Kan. 569. Regulations which 
 affect the time and place of the election and 
 the legal qualifications of the voters are usu- 
 ally matters of substance, while those relat- 
 ing to the recording and return of the votes 
 received and the mode and manner of con- 
 ducting the details of the election are direc- 
 tory. 
 
 A statute requiring an official act, for pub- 
 lic purposes, to be done by a given day, is 
 directory only; People v. Allen, 6 Wend. (N. 
 Y.) 4S6. A representative in the legislature 
 cannot be deprived of his seat by the failure 
 of mere election officers to make the return 
 required by law to the secretary of state; 
 see opinion of the judges in Maine; Me. 
 Laws, 1880, p. 225, where many election ques- 
 tions are considered fully. Mere irregulari- 
 ty on the part of election officers, or their 
 omission to observe some merely directory 
 provision of the law, will not vitiate the 
 poll; Anderson v. Winfree, 85 Ky. 597, 4 S. 
 W. 351, 11 S. W. 307; nor is an election in- 
 valid because the election officers de facto 
 were disqualified ; Quinn v. Markoe, 37 Minn. 
 439, 35 N. W. 263; State v. Goowin, 69 Tex. 
 55, 5 S. W. 678; so also irregularities which 
 do not tend to affect results are not allowed 
 to defeat the will of the majority, which 
 must be respected, even when irregularly ex- 
 pressed; Lane v. Cary, 19 Barb. (N. Y.) 540; 
 Juker v. Com., 20 Pa. 493; Morris v. Van- 
 laningham, 11 Kan. 269; Ranney v. Brooks, 
 20 Mo. 107; People v. Bates, 11 Mich. 362,
 
 ELECTION" 
 
 983 
 
 ELECTION 
 
 83 Am. Dec. 745; McKinney v. O'Connor, 2G 
 Tex. .">; Keller v. Chapman, 54 Cal. 635; 
 Bright Elect Cas. 448, 449, 450. 
 
 By the laws of some states separate boxes 
 are kept at the voting polls for the reception 
 of ballots for different oflicers, and the ques- 
 tion has arisen whether a ballot dropped 
 into the wrong box can be counted. There 
 is some conflict of authority on this point, 
 but it has been held by the supreme court 
 of Michigan that a voter cannot be deprived 
 of his vote by the mistake or fraud of an 
 officer in depositing it in the wrong box, if 
 the intention of a voter can be ascertained 
 with reasonable certainty; and for the same 
 reason a ballot should not be rejected be- 
 cause put in the wrong box by the honest 
 mistake of the voter himself; People v. 
 Bates, 11 Mich. 362, 83 Am. Dec. 745. 
 
 An election officer who wilfully and cor- 
 ruptly refuses to any qualified citizen the 
 right to vote or to register is liable in dam- 
 ages to the person injured ; Ashby v. White, 
 1 Sm. L. Cas. (7th ed.) 455; 2 Ld. Etaym. 
 95S; Bernier v. Russell, S9 111. GO. Equity 
 will not interpose to protect the right to vote, 
 it being a mere political right; Shoemaker 
 v. City of Des Moines, 129 la. 244, 105 N. 
 W. 520, 3 L. R. A. (N. S.) 382. In England 
 and in most of the states proof of a mali- 
 cious or a corrupt purpose on the part of the 
 officer is necessary ; Weckerly v. Geyer, 11 
 S. & R. (Pa.) :»j; but in Massachusetts it is 
 not necessary to show malice, and this rule 
 has been followed in Ohio and Wisconsin. 
 But even in Massachusetts the officer is not 
 liable if he acted under a mistake into which 
 he was led by the conduct of the plaintiff; 
 Lincoln v. Ilapgood, 11 Mass. 350; Gillespie 
 v. Palmer, 20 Wis. 544. See Jenkins v. 
 Waldron, 11 Johns. (N. Y.) 114, 6 Am. Dec. 
 359; State v. Smith, 18 N. H. 91; State v. 
 Robb, 17 Ind. 536. 
 
 Exemplary damages may be recovered if 
 the refusal was wilful, corrupt, and fraudu- 
 lent; Elbin v. Wilson, 3". Md. 135. Equity 
 may upon the relation of the Attorney Gen- 
 eral, the Governor and the state committee 
 chairman, restrain by injunction election of- 
 ficials from committing illegal and fraudu- 
 lent acts, though the acts charged, if com- 
 mitted, constitute criminal offences; People 
 v. Tool, 35 Colo. 225, 86 Pac. 224, 229, 231, 6 
 L. R. A. (N. S.) S22, 117 Am. St. Rep. 198. 
 
 The jurisdiction to hear and determine 
 election cases, though by common law in 
 courts having ordinary common-law jurisdic- 
 tion, is generally regulated by special stat- 
 utes in most of the states. 
 
 Where a court can reach a conclusion as 
 to the actual legal vote cast at a precinct, 
 on a contest of an election, it can give effect 
 to it notwithstanding the election officers 
 may have been guilty of misconduct; Lucky 
 v. Police Jury, 40 La. Ann. 679, 15 South. 89. 
 
 Ballots. Voting by ballots is by a ticket 
 
 or ball and secrecy is an essential part of 
 this manner of voting; State v. Shaw, 9 S. 
 C. '.M; Brisbin v. Cleary, 26 Minn. 107, 1 N. 
 w. 825; L. R. in c. P. 7.-.::; therefore a stat- 
 ute which provides for numbering ball 
 repugnant to a constitutional provision that 
 elections shall he by ballot; Williams v. Stein, 
 38 Ind. 89, 10 Am. Rep. 97; contra, state, v. 
 Connor, 86 Tex. 133, s: S. W. IK':'.; People 
 v. Bidelman, 69 Bun 596, 23 X. Y. Supp. 954; 
 Ex parte Owens, lis Ala. 402, :_ South. 676, 
 8 L. R. A. (X. S.) 888, 121 Am. 81 
 unnumbered ballots are not void although 
 the ouiission to number them is a misde- 
 meanor; Montgomery v. Henry, 144 Ala. <;_".». 
 ::'.) South. 507, 1 L. R. A. (X. S.) 656, <'. Ann. 
 Cas. 965. 
 
 Ballots are frequently deposited which do 
 not clearly indicate the voter's intention: 
 for instance, by misspelling the name of a 
 candidate, etc. The rule in such case- i- 
 thus stated in Cooley, Const. Lim. 611 : "We 
 think evidence of such facts as may be call- 
 ed the circumstances surrounding the elec- 
 tion, — such as, who were the candidates 
 brought forward by the nominating conven- 
 tions; whether other persons of the same 
 name resided in the district from which the 
 officer was to be chosen ; and if so, whether 
 they were eligible or had been named for the 
 office; if the ballot was printed imperfectly, 
 how it came to be so printed, and the like, — 
 is admissible for the purpose of showing 
 that an imperfect ballot was intended for a 
 particular candidate, unless the name is so 
 different that to thus apply it would be to 
 contradict the ballot itself, or unless the bal- 
 lot is so defective that it fails to show any 
 intention whatever, in which case it is inad- 
 missible." See on this point, Attorney-Gen- 
 eral v. Ely, 4 Wis. 430; People v. Pease, 27 
 N. Y. 64, 84 Am. Dec. 242. The case in Peo- 
 ple v. Tisdale, 1 Dougl. (Mich.) 05, which is 
 contra, was overruled in People v. Cicott, 16 
 Mich. 2S3, 97 Am. Dec. 141, and the rule 
 above laid down by Judge Cooley approved 
 and followed. Thus votes for "E. M. Brax- 
 ton," "Elliot Braxton," and "Braxton" have 
 been counted for Elliot M. Braxton in the 
 42d Congress. See McCrary, Elect 296. 
 Ballots east for "D. M. Carpenter," "M. D. 
 Carpenter," "M. I. Carpenter," and "Carpen- 
 ter" were counted for Mathew II. Carpenter; 
 Attorney-General v. Ely, -i Wis. 430. Ballots 
 for "Judge Ferguson" were counted for Ten- 
 ner Ferguson; l BartL'267. Ballots cast 
 for "E. Clark" and "Clark" were counted for 
 E. K. Clark; those cast for "YV. B. RobsO," 
 "Robertson," "Robers," and "Robin — " were 
 counted for W. E. Robinson. Where the only 
 candidates for an office were Caleb Gumm 
 and Joel P. Hubbard, votes for "J. 1>. Huba," 
 "J. D. Hubba," "J. I). Hub," and also one lor 
 "Huber," and one for "D. Huber," are prop- 
 erly counted tor Hubbard; Gumm v. Hub- 
 bard, 97 Mo. 311, 11 S. W. 01, 10 Am. St.
 
 ELECTION 
 
 984 
 
 ELECTION 
 
 Rep. 312. See opinion of judges of supreme 
 court of Maine, printed in Maine Laws, 18S0, 
 App. p. 225. 
 
 A ballot containing the names of two can- 
 didates for the same office is bad as to both, 
 but is not thereby vitiated as to other names 
 of candidates on the same ballot; Attorney- 
 General v. Ely, 4 Wis. 420; State v. Fox- 
 worthy, 29 Neb. 341, 45 N. W. 632 ; where a 
 ballot contains the names of three persons 
 for the same office, and there is only one va- 
 cancy to be filled, it should be rejected ; 
 Montgomery v. O'Dell, 67 Hun 169, 22 N. Y. 
 Supp. 412. 
 
 Where there are statutory provisions as 
 to the marking of ballots, the paper on 
 which they are printed, etc., a ballot not 
 complying with the law should not be receiv- 
 ed ; the direction is mandatory; Com. v. 
 Woelper, 3 S. & R. (Pa.) 29, 8 Am. Dec. 628; 
 Parvin v. Wimberg, 130 Ind. 561, 30 N. E. 
 790, 15 L. R. A. 775, 30 Am. St. Rep. 254; 
 but see People v. Kilduff, 15 111. 492, 60 
 Am. Dec. 769, where the law required white 
 paper without any marks, and blue-tinted 
 paper, ruled, was used, and the ballot de- 
 clared legal ; and where the law required 
 the marking of the ballots with ink, if oth- 
 erwise regular and marked with a pencil, 
 they were counted ; State v. Russell, 34 Neb. 
 116, 51 N. W. 465, 15 L. R. A. 740, 33 Am. 
 St. Rep. 625. In Kirk v. Rhoads, 46 Cal. 398, 
 the court held, in this connection, that as to 
 those things over which the voter has con- 
 trol, provisions as to the appearance of bal- 
 lots are mandatory; and as to those things 
 that are not under his control, such provi- 
 sions are directory. Ballots on which a print- 
 ed name is erased and another name written 
 in its place are valid ; People v. Saxton, 22 
 N. Y. 309, 78 Am. Dec. 191 ; Fenton v. Scott, 
 17 Or. 189, 20 Pac. 95, 11 Am. St. Rep. S01 ; 
 but see State v. McElroy, 44 La. Ann. 796, 
 11 South. 133, 16 L. R. A. 278, 32 Am. St. 
 Rep. 355. 
 
 Where a law provides that the voter may 
 insert in the blank space provided therefor 
 any name not already on the ballot, it was 
 held that such insertion might be made by 
 the use of a "sticker" as well as by writing 
 the name of the candidate ; De Walt v. 
 Bartley, 146 Pa. 529, 24 Atl. 185, 15 L. R. A. 
 771, 28 Am. St. Rep. 814. 
 
 The fact that some of the ballots cast at 
 an election were marked, and thereby ren- 
 dered void by the election law, does not in- 
 validate the ballots that were regular; Peo- 
 ple v. Bidelman, 69 Hun 596, 23 N. Y. Supp. 
 954. 
 
 Australian Ballot. This system, the lead- 
 ing features of which have now been adopt- 
 ed in many of the states, is the first im- 
 portant gift to civilization from the conti- 
 nent of Australasia. It revives the secret 
 ballot in the time of Cicero, under the Ga- 
 binian Law. It originated in South Austra- 
 
 lia soon after the beginning of the present 
 century as the result of the efforts of Mr. 
 Francis S. Dutton, and thence passed from 
 state to state in Australasia, then to the 
 mother country in Europe, afterward to 
 Canada, and eastward to continental coun- 
 tries, and finally westward again to the Unit- 
 ed States. It has been said that a some- 
 what similar system had been in vogue in 
 England in Maryport for many years before 
 the modern system was introduced in Aus- 
 tralasia. But the Australasian system seems 
 to have been purely indigenous, and was de- 
 veloped without any copying or even knowl- 
 edge of the system at Maryport 
 
 The cardinal features of the system, as 
 everywhere adopted, are an arrangement for 
 polling by which compulsory secrecy of vot- 
 ing is secured and an official ballot printed 
 and distributed by government authority con- 
 taining the names of all candidates. The 
 details of the system include methods by 
 which candidates may be nominated, pre- 
 scribing the number of persons necessary to 
 nominate a candidate, forms in which the 
 various party nominations and information 
 for the voters shall be printed on the ballots, 
 arrangements for small closets or rooms into 
 which the voter can retire and mark his bal- 
 lot in secret, regulations for allowing him 
 to take into the closet with him when he so 
 desires a person to assist him in marking 
 his ballot, and regulations for the numbering 
 and counting of the ballots. See Wigniore, 
 Australian Ballot System. 
 
 The system now generally in vogue in the 
 United States is in most cases not the 
 Australian ballot pure and simple. One 
 feature of that system is the enumeration 
 of candidates for a particular office alphabet- 
 ically and without designation of party name 
 or emblem. This was adopted in Massachu- 
 setts. But in most states the plan, better 
 adapted for the American states, is to use 
 an official ballot, but, when many officers 
 are voted for on a single ballot, to have the 
 column of each party indicated by name or 
 sign or both, and permit the voter to vote 
 a "straight" ticket by a single mark for all 
 officers voted for. This, in various forms, 
 may be termed the American modification of 
 the Australian ballot. 
 
 The novel features of this system of vot- 
 ing have given rise to much litigation, and 
 a considerable body of law has already ac- 
 cumulated, which involves not so much new 
 principles as the application of old ones to 
 new conditions. It is, nevertheless, desirable 
 to consider these decisions separately from 
 those under the old system, as thereby a 
 clearer impression is received, both of the 
 system and the method of its enforcement, 
 which is necessarily committed very largely 
 to the courts, and, like cases of railroad re- 
 ceiverships, devolves upon the courts the
 
 ELECTION 
 
 985 
 
 ELECTION 
 
 exercise of functions often to some extent 
 administrative as well us judicial. 
 
 It may be said without reserve that the 
 courts have, as a ru!<'. been true to the fun- 
 damental doctrines of the law of elections: 
 to give effect to the intention of the voter, 
 where it can be done without defeating the 
 purpose of the legislation, — to enforce party 
 rules with respect to nominations and test 
 the integrity and fairness of those made by 
 petition, — to disregard mere technical irregu- 
 larities and hold valid elections carried on 
 in good faith rather than to permit them to 
 be defeated by the carelessness, ignorance, 
 or fraud of officials, — to enforce rigidly the 
 safeguards against bribery and intimidation, 
 and the provisions to secure the secrecy of 
 the ballot which lie at the foundation of the 
 system. 
 
 For an extended discussion of the Austra- 
 lian ballot laws of England and some of the 
 American states, see Bowers v. Smith, 111 
 Mo. 15. 20 S. \V. 101, 1G L. R. A. 754, 33 Am. 
 St Rep. 491, in which it is held that the 
 system should be construed in subordination 
 to the constitution and laws of the state 
 wherein it is adopted. 
 
 Such laws have been held constitutional; 
 Bowers v. Smith, 111 Mo. 45, 20 S. W. 101, 
 16 L. R. A. 754, 33 Am. St. Rep. 491; De 
 Walt v. Bartley, 146 Pa. 529, 24 Atl. 185, 15 
 L. R. A. 771, 28 Am. St Rep. 814 ; Attorney- 
 General v. May, 99 Mich. 538, 58 N. W. 483, 
 25 L. R. A. 325; Ransom v. Black, 54 N. J. 
 L. 446, 24 Atl. 489, 1021, 16 L. R. A. 769; 
 Miner v. Olin, 159 Mass. 487, 34 N. E. 721; 
 Slaymaker v. Phillips, 5 Wyo. 453, 40 Pac. 
 971. 42 Pac. 1049, 47 L. R. A. 842; Pearson 
 v. Board of Sup'rs, 91 Va. 322, 21 S. E. 483. 
 The objections taken will be found to in- 
 clude general ones and also features of par- 
 ticular statutes. The statute forbidding the 
 counting of a ballot not officially stamped 
 and marked with the initials of a judge of 
 election is in conflict with the constitutional 
 provision that all persons duly qualified are 
 entitled to vote and that all elections shall 
 be by ballot; Mover v. Van De Vanter, 12 
 Wash. St. 377, 41 Pac. 60, 29 L. R. A. 670 ; 
 50 Am. St Rep. 900. In Illinois the new 
 ballot law was held to have repealed all 
 other laws respecting voting on municipal 
 affairs and ballots; Union County v. Ussery, 
 147 111. 204, 35 N. E. 618; but it is held to 
 apply only to the election of officers and not 
 to special elections to determine other mat- 
 ters, in Wisconsin; Slate v. City of .Tanes- 
 ville, 90 Wis. 157, 62 N. W. 933; and Penn- 
 sylvania; Evans v. Willistown Township, 3 
 Pa. Dist. Rep. 395. A statutory provision 
 that a local option election shall be conduct- 
 ed according to the rules provided for gener- 
 al elections requires that it shall be l>y bal- 
 lot, where the constitution requires general 
 elections to be so conducted ; State v. Board 
 of Canvassers, 78 S. C. 461. 59 S. E. 145, 14 
 L. R. A. (N. S.) S30, 13 Ann. Cas. 1133. 
 
 Questions as to the regularity of nomina- 
 tion papers under the Australian ballot sys- 
 tem are usually settled by the courts either 
 under express statutory provisions or under 
 their general jurisdiction when applicable 
 A number of such questions decided in ref- 
 erence to the then pending election are re- 
 ported in Tilbrook's and Semm< a's Nomina- 
 tions, 5 Pa. Dist. Rep. 660 ; Hendley v. Reed- 
 er, 5 Pa. Dist Rep. 677. 
 
 Where conflicting nominations have each 
 certain claims to superiority, if technical 
 rules only are applied, the court will give 
 weight to the fact that one candidate carried 
 the district by a decisive majority. The de- 
 sire of the court in such cases is to reach 
 what is substantial ; Tilbrook's and Sem- 
 men's Nominations, •"> Pa. Dist. Hep. 660. If, 
 under the rules of the party, the county 
 committee has power to fill vacancies and 
 did not act, but only certain members of it 
 residing within the representative district, 
 such action is a clear violation of the party 
 rules and the nomination by such Irregular 
 body is void ; Stucker's Nomination, 5 Pa. 
 Dist. Rep. 660. Where congressional con- 
 ferees from one county of a congressional 
 district were appointed in violation of the 
 party rules, the conference in which they 
 took part was not a regular body, and the 
 nomination made by it was void; Klugh's 
 Nomination, 5 Pa. Dist. Rep. 661. Nomina- 
 tions attended by fraud and the exercise of 
 arbitrary power will not be upheld by the 
 courts. A minority of delegates cannot nom- 
 inate, and a faction may not arbitrarily se- 
 lect their meeting- place in defiance of a clear 
 majority of the ward executive committee ; 
 Saunders' and Roberts' Nominations, 5 Pa. 
 Dist. Rep. 661. Where persons who are not 
 delegates are permitted upon the floor of a 
 convention and the evidence justifies the con- 
 clusion that their presence was not harmless, 
 the nomination is invalid : Boger's and 
 Sterr's, Laubach's and Hessler's Nomina- 
 tions, 5 Pa. Dist Rep. 662. A nomination 
 paper which attempts to name presidential 
 electors, representatives at large in «M 
 and other state officers, as well as candi- 
 dates for separate congressional, senatorial, 
 and representative districts, by a single pa- 
 per is bad; Crow Anti-Combine Party Nomi- 
 nation Paper, 5 Pa. Dist Rep. 665, A court 
 will, not. however, in the exercise of its equi- 
 table powers, enjoin the printing of a certain 
 column on the official ballot on a mere allega- 
 tion that the nomination papers are defec- 
 tive, false, and fraudulent. Troof of SUCD 
 allegation must be made before the court 
 will find it so as a fact; Hendley v. Reeder, 
 5 Pa. Dist Rep. c.77. Where an adequate 
 remedy exists and a sufficient opportunity 
 has 1 een given to present to the court ob- 
 jections to a Domination paper, the court will 
 not intervene by Injunction in relief of a 
 complainant who has failed to avail himself
 
 ELECTION 
 
 986 
 
 ELECTION 
 
 of such a remedy ; Cassin v. Reeder, 5 Pa. 
 Dist. Rep. 681. 
 
 Whenever an official ballot is provided for 
 by statute»the secretary of state will not de- 
 cide which of two rival conventions of the 
 same organization is the regular one, but all 
 such nominations should be certified and 
 left to the voters for their decision ; State 
 v. Allen, 43 Neb. 651, 62 N. W. 35 ; Teople v. 
 District Court, IS Colo. 26, 31 Pac. 339; 
 Shields v. Jacob, SS Mich. 164, 50 N. W. 105, 
 13 L. R. A. 760; Matter of Redmond, 5 Misc. 
 369, 25 N. Y. Supp. 381; nominations by a 
 bolting convention are invalid ; In re Nomi- 
 nation of Gibbons, 5 Pa. Dist. Rep. 194 ; in 
 case of a tie vote in a nominating convention 
 neither the candidates nor the election offi- 
 cers can determine the result by lot; Beck 
 v. Board of Election Com'rs, 103 Mich. 192, 
 61 N. W. 346. Where the People's Independ- 
 ent party had been generally known as the 
 "Populist Party," that name could not be 
 adopted by a new political organization ; 
 Porter v. Flick, 60 Neb. 773, 84 N. W. 262. 
 
 The offence of falsely making or signing 
 a nomination certificate must be charged in 
 the words of the statute, being unknown at 
 common law, and the want of criminal in- 
 tent is no defence, and the voter must sign 
 in person, or be present, and request it to be 
 done; Com. v. Connelly, 163 Mass. 539, 40 
 N. E. 862. 
 
 As to defects in statement of names of 
 candidates in nomination papers, see L. R. 
 1 C. P. Div. 596; L. R. 15 Q. B. Div. 273; 
 12 id. 257 ; they are not invalidated by or- 
 dinary abbreviations of names; 10 N. S. 
 Wales L. R. 59. 
 
 Provisions as to filling vacancies are not 
 always mandatory, and after a fair election, 
 an irregularity will not be permitted to in- 
 validate it; Stackpole v. Hallahan, 16 Mont. 
 40, 40 Pac. 80, 28 L. R. A. 502. 
 
 For the form of ballots prescribed in a 
 number of states, see Talcott v. Philbrick, 
 59 Conn. 472, 20 Atl. 436, 10 L. R. A. 150. 
 For inserting names under the Australian 
 ballot law in the official ballot, not legally 
 entitled to insertion, see Bowers v. Smith, 
 35 Cent. L. J. 305. 
 
 Courts will not interfere with the discre- 
 tion of the officer charged with the prepa- 
 ration of the official ballot, as to details; 
 Woods v. State, 44 Neb. 430, 63 N. W. 23. 
 
 Prohibiting the printing of the name of 
 a candidate in more than one column is con- 
 stitutional ; Todd v. Election Com'rs, 104 
 Mich. 474, 480, 62 N. W. 564, 64 N. W. 496, 
 29 L. R. A. 330 ; but where the act provides 
 that names shall be grouped by parties, a 
 candidate named by more than one party is 
 entitled to have his name appear in the col- 
 umn of each ; Williams v. Dalrymple, 132 
 Mo. 62, 33 S. W. 447 ; contra, Sawin v. Pease, 
 6 Wyo. 91, 42 Pac. 750. 
 
 A construction which makes the error of 
 a single official disfranchise large bodies of 
 
 voters must be avoided if the language is 
 susceptible of any other; Bowers v. Smith, 
 111 Mo. 45, 20 S. W. 101, 16 L. R. A. 754, 33 
 Am. St. Rep. 491; and where, by the negli- 
 gence of the officer, the name of a candidate 
 and of the office is omitted from the ballot, 
 the voter may write them, and his vote will 
 be valid; People v. President, etc., of Wap- 
 pingers Falls, 144 N. Y. 616, 39 N. E. 641. 
 The provision requiring the voter to make 
 a cross with a stamp opposite each name vot- 
 ed for is mandatory ; Lay v. Parsons, 104 Cal. 
 661, 38 Pac. 447; Sego v. Stoddard, 136 Ind. 
 297, 36 N. E. 204, 22 L. R. A. 468 ; Curran v. 
 Clayton, S6 Me. 42, 29 Atl. 930 ; Parvin v. Wim- 
 berg, 130 Ind. 561, 30 N. E. 790, 15 L. R. A. 
 775, 30 Am. St. Rep. 254 ; but in other states 
 the courts are disposed to be more liberal 
 and permit marking outside of the square 
 if to the right of the name; In re Vote 
 Marks, 17 R. I. 812, 21 Atl. 962 ; Weidknecht 
 v. Hawk, 13 Pa. Co. Ct. 41; Contested Elec- 
 tion for Mayor of City of York, 13 Pa. Co. 
 Ct. 205 ; Tebbe v. Smith, 108 Cal. 101, 41 Pac. 
 454, 29 L. R. A. 673, 49 Am. St. Rep. 68; 
 Lynip v. Buckner, 22 Nev. 426, 41 Pac. 
 762, 30 L. R. A. 354; Vallier v. Brakke, 7 
 S. D. 343, 64 N. W. 180, 186; Parker v. 
 Orr, 158 111. 609, 41 N. E. 1002, 30 L. R. 
 A. 227; Houston v. Steele, 98 Ky. 596, 34 
 S. W. 6 (in which cases the subject of 
 marks is fully considered). A provision 
 for marking with ink is directory only, 
 and pencil will answer; State v. Russell, 
 34 Neb. 116, 51 N. W. 465, 15 L. R. A. 740, 
 33 Am. St. Rep. 625 ; a blanket paster is not 
 legal in Pennsylvania, but a single sticker 
 may be used ; Little Beaver Tp. School Di- 
 rectors' Election, 165 Pa. 233, 30 Atl. 955, 
 27 L. R. A. 234. As to what distinguishing 
 marks on ballots will vitiate them see Par- 
 ker v. Orr, 158 111. 609, 41 N. E. 1002, 30 L. 
 R. A. 227; Zeis v. Passwater, 142 Ind. 375, 
 41 N. E. 796 ; Rutledge v. Crawford, 91 Cal. 
 526, 27 Pac. 779, 13 L. R. A. 761, 25 Am. 
 St. Rep. 212 ; People v. Board of County Can- 
 vassers, 129 N. Y. 395, 29 N. E. 327, 14 L. 
 R. A. 624; Hanscom v. State, 10 Tex. Civ. 
 App. 638, 31 S. W. 547 ; and where by mistake 
 "spoiled ballots" were counted the result was 
 not thereby ascertained and the returns of the 
 county clerk were prima facie evidence 
 which should be considered by the court; 
 Hendee v. Hayden, 42 Neb. 760, 60 N. W. 
 1034; voters are not confined to the names 
 on the official ballot but may write other 
 names thereon ; Sanner v. Patton, 155 111. 
 553, 40 N. E. 290; signing a ballot invali- 
 dates it; Parker v. Orr, 158 111. 609, 41 N. E. 
 1002, 30 L. R. A. 227. The failure of a vot- 
 er to retire to the booth to mark the ballot 
 does not make the marking illegal if not 
 wilful; Hall v. Schoenecke, 128 Mo. 661, 31 
 S. W. 97. In Michigan the supreme court 
 have with much detail considered this sub- 
 ject and enumerate seven methods of mark- 
 ing which are defective by reason of their
 
 ELECTION 
 
 9S7 
 
 ELECTION 
 
 being in effect distinguishing marks; Attor- 
 ney-General v. Glaser, 102 Mich. 390, 63 N 
 W. 648, 64 X. W. S2S. 
 
 The provision that an officer or person 
 designated by law may assist a voter physi- 
 cally or educationally unable to vote should 
 be liberally construed; Pearson v. Board of 
 Supervisors, 91 Va. 322, 21 S. E. 483; the 
 voter is the sole judge of his disability ; 
 Beaver County Elections, 12 Pa. Co. Ct. 227 ; 
 contra, under the same statute; Election In- 
 structions, 2 Pa. Dist. Rep. 1; the disability 
 must be one contemplated by the statute and 
 not drunkenness or ignorance; id.; nor that 
 he left his glasses at home; State v. Gay, 
 59 Minn. 6, 60 N. W. 676, 50 Am. St. Rep. 
 389; a ballot is good if the voter asks as- 
 sistance though he can read ; Montgomery v. 
 Oldham, 143 Ind. 34, 42 N. E. 474; where the 
 voter is required to make oath, this is man- 
 datory, and failure to take it invalidates 
 the vote; Attorney-General v. May, 99 Mich. 
 538, 58 N. W. 483, 25 L. R. A. 325; but if no 
 form of oath is prescribed any sufficient 
 form of words will sullice; State v. Gay, 59 
 Minn. 6, 60 N. W. 676, 50 Am. St. Rep. 389 ; 
 if the statute does not restrict the voter's 
 choice of an assistant the election officers 
 cannot do so; Beaver County Elections, 12 
 Pa. Co. Ct. 227; but when the statute desig- 
 nates a particular officer, it is mandatory; 
 Pearson v. Board of Supervisors, 91 Va. 322, 
 21 S. E. 483; and irregularities in the serv- 
 ices of the voter's assistant, as having one 
 where two were required, or if the assistant 
 had received money from a candidate, will 
 not invalidate the vote; Hanscom v. State, 
 10 Tex. Civ. App. 638, 31 S. W. 547; if the 
 assistant prepares a ballot contrary to the 
 direction of the voter, if fraudulently done, 
 it will avoid the vote, but if it does not ap- 
 pear whether it was fraud of the assistant 
 or mistake of the voter it will not be reject- 
 ed; id. 
 
 When an interpreter was permitted by 
 law but not asked for, the presence of one 
 inside the railing, conversing with voters 
 was held to vitiate the election; Attorney- 
 General v. Stillson, 10S Mich. 419, 66 N. W. 
 383. 
 
 Irregularities in taking the ballot must 
 be gross to defeat the election; L. R. 16 Q. 
 B. Div. 739; 7 Can. S. C. 247. When the 
 statute declares a certain irregularity fatal 
 courts will give effect to it, otherwise they 
 will ignore such innocent irregularities as 
 are free from fraud and have not interfered 
 with a fair expression of the voter's will ; 
 Bowers v. Smith, 111 Mo. 45, 20 S. W. 101, 
 16 L. R. A. 754, 33 Am. St. Rep. 491. 
 
 Irregularities which have been held harm- 
 less, are: Where there were two voting plac- 
 es in a precinct entitled to one; Wildman v. 
 Anderson, 17 Kan. 347; Bowers v. Smith. 111 
 Mo. 45, 20 S. W. 101, 16 L. R. A. 754, 33 Am 
 St. Rep. 491; where ballots wore received by 
 officers near a house appointed whose owner 
 
 refused to permit its use ; Preston v. Cul- 
 bertson, 58 CaL 198; errors or irregularities 
 in printing; Allen v. Glynn, 17 Colo. 3 
 Pac. 070, 15 L. R. A. 743, 31 Am. St. Hep. 
 304; Miller v. Pennoyer, 2:; Or. 364, 33 Pac 
 830; ballots Improperly prepared by the offi- 
 cers and not "marked" ballots may be 
 counted; People v. Wood, 148 X. Y. 142, 42 
 X. !•:. 536. 
 
 When candidates and voters have partici- 
 pated in an election and acquiesced in the 
 result failure to give notice may be disre- 
 garded; Adsit v. Board of State Canva 
 84 Mich. 420, 48 X. W. 31, 11 L. R. A. 534; 
 and other irregularities may be so far ac- 
 quiesced in by the defeated candidate that 
 he will be disqualified to complain; L. R. 1 
 Q. B. 433; Allen v. Glynn, 17 Colo. 338, 29 
 Pac. 070, 15 L. R. A. 743, 31 Am. St. Rep. 
 304. 
 
 Contested Elections. At common law the 
 right to an office was tried by a writ of quo 
 warranto; in modern practice, an informa- 
 tion in the nature of quo warranto is usual 
 in the absence of a statute; McCrary, Elect. 
 190. See 3 Bla. Com. 203 ; 2 Jurist X. S. 114. 
 An act for trying contested elections without 
 a jury is not unconstitutional : Kwing v. Fil- 
 ley, 43 Pa. 389. An act providing for the 
 appointment of an election commission with 
 power over contests, by the legislature, is an 
 invasion of the executive power and uncon- 
 stitutional; Pratt v. Breckinridge, 112 Ky. 
 
 I, 65 S. W. 130, 00 S. W. 405. As to whether 
 the declarations not under oath of illegal 
 voters is evidence as to the votes cast by 
 them, is doubtful, see State v. Olin, 23 Wis. 
 319; 1 P.artl. 19, 230; Gilleland v. Schuyler, 
 9 Kan. 509 ; People v. Pease, 27 X. Y. 45, 84 
 Am. Dec. 242. The ordinary rules of evi- 
 dence apply to election cases; McCrary, 
 Elect. 231 ; Paine, Elect. S24. A legal voter 
 may refuse to testify for whom he voted, 
 but he may waive this privilege; K.ieass' 
 Case, 2 Pars. (Pa.) 580. It is competent for 
 witnesses to testify that they were under 
 age at the time of voting, and that their 
 votes were cast for the candidate receiving 
 the largest number; Crabb v. Orth, 133 Ind. 
 
 II, 32 X. E. 711. A voter who participates 
 in an election which is not secret, although 
 required by statute to he by ballot, doea uot 
 waive his right to contest the result, as such 
 waiver would be contrary to public policy; 
 stare v. Board of Canvassers, 7^ s. c. 461, 
 59 S. E. 145, 14 L. R. A. (X. S.) 850, 13 Ann. 
 ('as. li:;::. 
 
 In all contested elections, the tribunal will 
 look beyond the certificate of the returning 
 hoard; People v. Vail. 20 Wend. I X. Y.) 12. 
 Sec Stat.- v. Townsley, 50 Mo. 107. 
 
 in purging the poll of illegal votes, unless 
 it be shown for whom the illegal votes were 
 cast, they will be deducted from the total 
 vote; In re Contested Elections of 1868, 2 
 Brewst (Pa.) 128. 
 
 Where the laws have been entirely disre-.
 
 ELECTION 
 
 9S8 
 
 ELECTION OF RIGHTS 
 
 garded by the election officers and the re- 
 turns are utterly unworthy of credit, the 
 entire poll will be thrown out, but legal 
 votes, having been properly proved, may be 
 counted; Bright. Elect Cas. 493. "Nothing 
 short of the impossibility of determining for 
 whom the majority of votes were given 
 ought to vacate an election;" CI. & H. 504. 
 
 Where another than the person returned 
 as elected is found to have received the 
 highest number of legal votes given, he is 
 entitled to the office; Varney v. Justice, 86 
 Ky. 596, 6 S. W. 457. 
 
 Primary Elections. After an election, the 
 right of successful candidates to their offices 
 is not affected by the unconstitutionality of 
 the primary act under which they were 
 nominated; People v. Strassheim, 240 111. 
 279, 88 N. E. 821, 22 L. R. A. (N. S.) 1135; 
 such an act may not curtail, subvert or add 
 to the constitutional qualifications of voters ; 
 id. Primary elections may be provided by 
 statute for political parties which cast at 
 least 10 per cent, of the vote at the last gen- 
 eral election, and such statute does not de- 
 prive any person of the equal protection of 
 the laws; State v. Felton, 77 Ohio St. 554, 
 84 N. E. 85, 12 Ann. Cas. 65. They are not 
 within the meaning of a statute permitting 
 the use of voting machines at all state, etc., 
 elections, Line v. Board of Election Canvass- 
 ers, 154 Mich. 329, 117 N. W. 730, 18 L. R. 
 A. (N. S.) 412, 16 Ann. Cas. 248. 
 
 A law requiring the payment of a fee as a 
 condition precedent to having a candidate's 
 name printed on the official primary election 
 ballot, except as may be reasonable for the 
 services of an auditor for filing petition, is 
 unconstitutional ; Johnson v. Grand Forks 
 County, 16 N. D. 363, 113 N. W. 1071, 125 
 Am. St. Rep. 662. 
 
 In 1868, jurisdiction over contested elections 
 to the House of Commons was transferred 
 to the Court of Common Pleas and is now 
 vested in the High Court of Justice, the cas- 
 es being heard by two judges. Their deci- 
 sion is certified to the Speaker of the House. 
 
 See Ballot; Eligibility; Majority; Vot- 
 er; Voting Machine. 
 
 ELECTION OF RIGHTS OR REMEDIES. 
 
 The obligation imposed upon a party to 
 choose between two inconsistent or alterna- 
 tive rights or claims, in cases where there 
 is clear intention of the person from whom 
 he derives one that he should not enjoy both. 
 2 Sto. Eq. Jur. § 1075. 
 
 A choice shown by an overt act between 
 two inconsistent rights, either of which may 
 be asserted at the will of the chooser alone. 
 Bierce v. Hutchins, 205 U. S. 346, 27 Sup. Ct. 
 524, 51 L. Ed. S28. 
 
 Etymologically, election denotes choice, selection 
 uut of the number of those choosing. Thus, the 
 election of a governor would be the choice of some 
 individual from the body of the electors to perform 
 the duties of governor. In common use, however, 
 it has come to denote such a selection made by a 
 
 distinctly defined body — as a board of aldermen, a 
 corporation, or state — conducted in such a manner 
 that each individual of the body choosing shall 
 have an equal voice in the choice, but without 
 regard to the question whether the person to be 
 chosen is a member of the body or not. The word 
 occurs in law frequently in such a sense, especially 
 in governmental law and the law of corporations. 
 But the term has also acquired a more technical 
 signification, in which it is oftener used as a legal 
 term, which is substantially the choice of one of two 
 rights or things, to each one of which the party 
 choosing has equal right, but both of which he can- 
 not have. This option occurs in fewer instances at 
 law than in equity, and is in the former branch, 
 in general, a question of practice. 
 
 At Law. In contracts, when a debtor is 
 obliged in an alternative obligation to do one 
 of two things, as to pay one hundred dol- 
 lars or deliver one hundred bushels of wheat, 
 he has the choice to do one or the other until 
 the time of payment ; he has not the choice, 
 however, to pay a part in each. Pothier, 
 Obi. part 2, c. 3, art. 6, no. 247; Smith v." 
 Sanborn, 11 Johns. (N. Y.) 59. Or, if a 
 man sell or agree to deliver one of two ar- 
 ticles, as a horse or an ox, he has the elec- 
 tion till the time of delivery, — it being a 
 rule that, "in case an election be given of 
 two several things, always he which is the 
 first agent, and which ought to do the first 
 act, shall have the election ; " Co. Litt, 145 a; 
 McNitt v. Clark, 7 Johns. (N. Y.) 465 ; Flem- 
 ing v. Harrison's Devisees, 2 Bibb (Ky.) 171, 
 4 Am. Dec. 691. On the failure of the per- 
 son who has the right to make his election 
 in proper time, the right passes to the op- 
 posite party; Co. Litt. 145c; Reid v. Smith, 
 1 Des. Ch. (S. C.) 460; Overbach v. Heer- 
 mance, Hopk. Ch. (N. Y.) 337, 14 Am. Dec. 
 546; Waggoner v. Cox, 40 Ohio St. 539; Cor- 
 bin v. Fairbanks Co., 50 Vt. 538; Husson v. 
 Oppenheimer, 66 How. Pr. (N. Y.) 306; Mar- 
 lor v. R. Co., 21 Fed. 383. 
 
 When one party renounces a contract the 
 other party may elect to rescind at once, ex- 
 cept so far as to sue upon it and recover for 
 the breach, and he may immediately bring 
 an action, without waiting for the time of 
 performance to arrive or elapse (in such 
 case he cannot treat the contract as subsist- 
 ing for any other purpose) ; L. R. 7 Exch. 
 114; L. R. 16 Q. B. 460; Hocking v. Ham- 
 ilton, 158 Pa. 107, 27 Atl. 836 ; Lovell v. Ins. 
 Co., Ill U. S. 264, 4 Sup. Ct. 390, 28 L. Ed. 
 423; Dingley v. Oler, 11 Fed. 372; contra, 
 as to a contract for the sale of land, Daniels 
 v. Newton, 114 Mass. 530, 19 Am. Rep. 384. 
 See the cases collected, Ans. Cont. (8th ed.) 
 355, n. 1. It is a maxim of law that, an elec- 
 tion once made and pleaded, the party is 
 concluded ; electio semel facta et placitum 
 testatum won patitur regressum; Co. Litt. 
 146; Lawrence v. Ins. Co., 11 Johns. (N. Y.) 
 241. 
 
 But an action for enforcing the benefits 
 due under a contract conveying property in 
 consideration of support does not preclude 
 an action to rescind on subsequent breaches ;
 
 ELECTION OF RIGHTS 
 
 989 
 
 ELECTION OF RIGHTS 
 
 Gall v. Gall, 120 Wis. 390, 105 N. W. 953, 5 
 L. R. A. (N. S.) 603. 
 
 In many cases of voidable contracts there 
 is a right of election to affirm or disavow 
 them, after the termination of the disabili- 
 ty, the existence of which makes this con- 
 tract voidable. So all contracts of an in- 
 fant, except for necessaries, may be avoided 
 by him within a reasonable time after he 
 comes of aye, but they are voidable only, 
 and he must elect not to be bound by them ; 
 Heath v. Stevens, 48 N. H. 251; Phllpot v. 
 Mfg. Co., 18 Neb. 54, 24 N. W. 428. See Sims 
 v. Everhardt, 102 U. S. 300, 2G L. Ed. 87. 
 And bringing suit is an election to rescind; 
 Eaton v. Hill, 50 N. H. 235, 9 Am. Rep. 1S9; 
 Pakas v. Racy, 13 Daly (N. Y.) 227. See In- 
 fant. 
 
 Whenever, by law or contract, a party 
 has laid before him a variety of steps, the 
 taking of one of which excludes another, or 
 the rest, he must choose between them. Aft- 
 er his choice is made, and by words or acts 
 expressed in a manner suited to the particu- 
 lar case, he cannot reverse it; he is said to 
 have elected the one step, and waived the 
 other; Bish. Cont. § 808. 
 
 Other cases in law arise : as in case of a 
 person holding land by two inconsistent ti- 
 tles ; 1 Jenk. Cent Cas. 27 ; dower in a piece 
 of land and that piece for which it was ex- 
 changed ; 3 Leon 271. See Sugd. Pow. 498. 
 
 In Equity. A choice which a party is com- 
 pelled to make between the acceptance of a 
 benefit under a written instrument, and the 
 retention of some property already his own, 
 which is attempted to be disposed of, in fa- 
 vor of a third party, by virtue of the same 
 paper. The doctrine of election pre-supposes 
 a plurality of gifts or rights, with an inten- 
 tion, express or implied, of the party who 
 has a right to control one or both, that one 
 should be a substitute for the other; 1 
 Swanst. 394 ; 3 Woodd. Lect. 491 ; 2 Rop. Leg. 
 480; Snell, Pr. Eq. 237. 
 
 The doctrine of election rests upon the 
 principle that he who seeks equity must do 
 equity, and means, as the term is ordinarily 
 used, that where two inconsistent or alter- 
 native rights or claims are presented to the 
 choice of a party, by a person who manifests 
 the clear intention that he should not enjoy 
 both, then he must accept or reject one or 
 the other; and so, in other words, that one 
 cannot take a benefit under an instrument 
 and then repudiate it; Peters v. Bain, 133 
 U. S. 695, 10 Sup. Ct. 354, 33 L. Ed. 696. 
 
 Where an express and positive election is 
 required, there is no claim, either at law or 
 in equity, to but one of the objects between 
 which election is to be made; but in many 
 cases there is apparent, from the whole of 
 an instrument, the intention that the party 
 to be benefited shall be benefited on certain 
 conditions. In such cases, equity will re- 
 quire the party to elect; Bisph. Eq. sec 295. 
 
 Where a testator gives money or land to 
 A, and by the same will gives something of 
 A's to B, A must elect either to give effect 
 to the will by allowing I". to have the prop- 
 erty which the testator intended should go 
 to him, or if he ird the will 
 
 and retain his own property, he must make 
 good the value of the gift to the disappoint- 
 ed beneficiary; Bisph. Eq. sec. 295. This 
 doctrine is principally applied to cat 
 wills; but it is applicable also to voluntary 
 deeds, to contracts for value resting upon 
 articles, and to contracts completely execut- 
 ed by conveyance and assignment This is 
 a case of implied election. An express elec- 
 tion is where a condition is annexed to a 
 gift, a compliance with which is distinctly 
 made one of the terms by which alone the 
 gift can be enjoyed. In a case of express 
 condition the result of a non-compliance is 
 a forfeiture ; whereas in elections growing 
 out of an implied duty, the person who de- 
 clines to make good the gift does not abso- 
 lutely lose the benefit which is bestowed up- 
 on him, but is compelled only to give up so 
 much of it as will amount to compensation 
 for the disappointed beneficiary; Bisph. Eq. 
 sec. 296. 
 
 Where a testator purports to give property 
 to A which in fact belongs to B, and at the 
 same time out of his own property confers 
 benefits on B, the literal construction and 
 application of the will would allow B to 
 keep his property to the disappointment of 
 A and also to take the benefits given him 
 by the will. In such circumstances, however, 
 B is not allowed to take the full benefit giv- 
 en him by the will unless he is prepared to 
 carry into effect the whole of the testator's 
 dispositions; 1 Swan. 359, 394. If he elects 
 to take under the will, he is bound and may 
 be ordered to convey his own property to A ; 
 1 Ves. 514 ; 1 Swan. 409, 420. If he elects to 
 take against the will and keep his own prop- 
 erty, and disappoints A, then he cannot take 
 any benefits under the will without compen- 
 sating A to the extent of the value of the 
 property as to which A is disappointed ; 5 
 Ch. D. 163; 4 Bro. C. C. 21. 
 
 The question whether an election is re- 
 quired occurs most frequently in case of de- 
 vises ; "because deeds being generally mat- 
 ters of contract, the contract is not to be 
 interpreted otherwise than as the considera- 
 tion which is expressed requires;" L. R. 8 
 Ch. 57S; but it extends to deeds; 1 Swanst. 
 400; 2 Story, Eq. Jur. § 1075, n. ; and it has 
 been held to apply to "voluntary deeds, to 
 cases of contracts for valuable consideration 
 resting in articles, to contracts for value 
 completely executed by conveyance and as- 
 signments" ; L. R. 8 Ch. 57S, where the au- 
 thorities are collected. The doctrine also 
 applies to powers of appointment ; L. R. 9 
 Eq. 519 ; 22 Ch. D. 555 ; 34 id. 100. 
 
 In the case, not strictly of election, but
 
 ELECTION OF RIGHTS 
 
 990 
 
 ELECTION OF RIGHTS 
 
 often so treated, of two distinct gifts of a 
 testator's own property, one onerous and 
 the other not, it is the general rule that the 
 donee may take one and reject the other, 
 unless it appear that it was the testator's 
 intention that the option should not exist; 
 22 Ch. D. 573, 577 ; and where a gift is made 
 by a deed of which the consideration is part- 
 ly invalid by reason of the disability of the 
 parties, the parts of the deed are read to- 
 gether and the burden is treated as the con- 
 sideration for the benefit; Brett, L. Cas. 
 Mod. Eq. 263. Where a married woman 
 made a valid appointment by will to her hus- 
 band under a power, and also bequeathed 
 personal property (not her separate estate) 
 to another person to which the power did 
 not extend, the husband was not put to his 
 election, but took both under the power and 
 jure mariti, as to the property ineffectually 
 bequeathed; 9 Ves. 369. 
 
 There must be a clear intention by the tes- 
 tator to give that which is not his property ; 
 Scott v. Depeyster, 1 Edw. Ch. (N. Y.) 532; 
 L. R. 7 Eq. 291. And if the testator has 
 some interest in the thing disposed, the pre- 
 sumption that he intended to dispose only of 
 his interest must be overruled in order to 
 make a case of election ; 6 Dow. 149, 179 ; 
 1 Ves. 515 ; and evidence is not admissible 
 to enlarge the devise so as to include prop- 
 erty belonging to another; McDonald v. 
 Shaw, 92 Ark. 15, 121 S. W. 935, 28 L. R. A. 
 (N. S.) 657. 
 
 The intention of the testator to put the 
 devisee to his election must appear from the 
 will itself; McDonald v. Shaw, 92 Ark. 15, 
 121 S. W. 935, 28 L. R. A. (N. S.) 657; but 
 surrounding circumstances may be shown by 
 parol; Fitzhugh v. Hubbard, 41 Ark. 64; 30 
 Beav. 14. The time in which election may 
 be exercised must be reasonable; 30 Beav. 
 235; Cooper v. Cooper's Ex'r, 77 Va. 198; 
 19 Ves. 663; Reaves v. Garrett's Adm'r, 34 
 Ala. 558; U. S. v. Duncan, 4 McLean 99, 
 Fed. Cas. No. 15,002. 
 
 The doctrine applies to every species of 
 property or interest, whether the donor does 
 or does not know of his right to dispose of 
 it; Wats. Comp. Eq. 177; cases of transac- 
 tions involving property of the wife ; 23 
 Beav. 457; Gregory v. Gates, 30 Gratt. (Va.) 
 83; satisfaction of dower; Fuller v. Yates, 
 8 Paige, Ch. (N. Y.) 325; 2 Sch. & L. 452; 
 14 Sim. 258. The doctrine does not apply 
 to creditors ; 12 Ves. 354. 
 
 As to the right or duty of election by per- 
 sons under disability, there is much appar- 
 ent confusion in the cases both as to theory 
 and practice. Story states the rule general- 
 ly that married women, infants, and lunatics 
 are not bound by election ; 2 Eq. Jur. § 1097. 
 The statement would seem too broad even 
 before the great changes made in all mat- 
 ters affecting the property rights and powers 
 of married women by recent legislation, and 
 before the changes characterized as a "brand 
 
 new invention of equity not fifty years old, 
 and made exclusively for the benefit of mar- 
 ried women under the old law — a breed 
 which is rapidly becoming extinct ;" Brett, 
 L. Cas. Mod. Eq. 257. This writer considers 
 the old and true doctrine of election to ap- 
 ply only to the acceptance of gifts under an 
 instrument made by another, while the new 
 doctrine involves the confirmation or repudi- 
 ation of voidable instruments made by the 
 person electing, who, in the cases referred 
 to, is always a married woman. The rule, 
 so far as there is one, has been stated thus : 
 — Parties competent to make an election 
 must usually be sui juris, but election may 
 sometimes be made by a court of equity on 
 behalf of infants and married women ; Bisph. 
 Eq. § 304 ; but this is really no rule and prob- 
 ably none can be exactly defined ; the cases 
 must be resorted to, and a large measure of 
 judicial discretion has been exercised in 
 dealing with them as they arose. In some 
 it is held that a married woman may be per- 
 mitted to elect ; 4 Kay & J. 409 ; Van Steen- 
 wyck v. Washburn, 59 Wis. 483, 17 N. W. 289, 
 48 Am. Rep. 532; Kennedy v. Johnston, 65 
 Pa. 451, 3 Am. Rep. 650 ; in others that she 
 cannot ; 3 Myl. & Cr. 171 ; Lord Cairns in L. 
 R. 7 H. L. 67; 9 Ch. D. 363; but it may be 
 referred to a master to inquire what is best 
 for her; 2 Ves. 60; L. R. 7 H. L. 67 (but in 
 this case there were also infants). It was 
 held by Lord Hatherly that she must elect; 
 in 2 J. & H. 344 (which Brett says "led to 
 the new departure") ; followed in 28 Ch. D. 
 124; contra; by Sir George Jessel in 18 Ch. 
 D. 531 ; followed by Chitty, L. J., in 27 Ch. 
 D. 606. The decisions of Lord Hatherly and 
 Sir George Jessel were referred to without 
 disapproval by Lord Selborne, one in L. R. 
 8 Ch. 578, and the other in 8 App. Cas. 420. 
 Finally in 31 Ch. D. 275, (reversing 28 Ch. 
 Div. 124,) it was held that the wife would 
 not be compelled to elect, but was entitled to 
 retain both funds, on the ground that the 
 settled fund had a restraint on anticipation. 
 This case reviews the conflicting decisions 
 and considers that they leave the question 
 to be determined on principle. It is treated 
 as deciding that but for the fact on which 
 the case was put it was one for election ; 
 Snell, Pr. Eq. 247; and it assumed without 
 discussion that election applied to married 
 women, and thereby as Brett considers "seal- 
 ed the triumph of the new election" ; Lead. 
 Cas. Mod. Eq. 257. 
 
 With regard to infants, the practice has 
 varied very much, and the cases are col- 
 lected in 1 Swanst. 413, note (c). The in- 
 fant has been permitted to elect after com- 
 ing of age in some cases ; cas. t. Talbot 176 ; 
 id. 130; 3 Bro. P. C. 173; in others an in- 
 quiry has been directed; 2 Sch. & Lef. 266; 
 and this may be considered the usual prac- 
 tice ; 1 Bro. P. C. 300 ; though the court has 
 elected for them without reference; 26 L. J. 
 N. S. Ch. 148; Addison v. Bowie, 2 Bland,
 
 ELECTION OF RIGHTS 
 
 991 
 
 ELECTION OF RIGHTS 
 
 Cb. (Md.) COG; and the same practice is 
 adopted when the poisons to elect are un- 
 born; Brett, L. Cas. M<»d. Eq. 260. Sec, gen- 
 erally, on this subject, Serrell, Equit. Doct 
 Elect. 184. 
 
 Persons not under disabilities are bound 
 to elect; Prentice v. Janssen, 79 N. T. 47S. 
 Positive acts of acceptance or renunciation 
 are not indispensable, but the question is to 
 be determined from the circumstances of 
 each case as it arises ; 21 Beav. 447 ; 1 Mo- 
 del. 541; Tiernan v. Roland, 15 Pa. 42'.). 
 And the election need not be made till all 
 the circumstances are known; 2 V. & B. 222; 
 
 1 McCl. & Y. 5G9. See, generally, 2 Story, 
 Eq. Jur. § 1075; 1 Swanst. 402, note; 2 Rop. 
 Leg; 480; Bisph. Eq. 295. 
 
 A widow has a right, regulated by statute 
 in the several states, to declare her election 
 between the provisions in her favor under 
 the will of her husband and her right of 
 dower. When bound to elect she is entitled 
 to full information and ascertainment of the 
 values of the two interests, and she may file 
 a bill in equity to obtain them; 2 Scribn. 
 Dow. 497, and cases cited at large in note 1. 
 The right must be exercised by the widow 
 herself, being purely personal; Sherman v. 
 Newton, 6 Gray (Mass.) 307; Hinton v. Hin- 
 ton, 28 N. C. 274; and the rule is not sub- 
 ject to exception even if she is insane; Lewis 
 v. Lewis, 29 N. C. 72; Collins v. Carman, 5 
 Md. 503. After the widow's death within 
 forty days without election, her representa- 
 tives could not make a renunciation of the 
 will ; Boone's Representatives v. Boone, 3 
 Har. & McH. (Md.) 95; Millikin v. Welliver, 
 37 Ohio St. 4G0; Eltzroth v. Binford, 71 Ind. 
 455; Appeal of Crozier, 90 Pa. 3S4, 35 Am. 
 Rep. GG6; and the right to a legacy in her 
 favor vests in her executor; Flynn v. Mc- 
 Dermott, 183 N. Y. 62, 75 N. E. 931, 2 L R. 
 A. (N. S.) 959, 110 Am. St. Rep. 687, 5 Ann. 
 Cas. 81; and attacking a will on the ground 
 of lack of testamentary capacity is not an 
 election by the widow ; id. For the statutory 
 provisions on the subject see 2 Scribn. Dow. 
 505, notes. 
 
 There must be an intention to elect and 
 knowledge of her rights so as to constitute 
 a deliberate choice ; Bradford v. Kent, 43 
 Pa. 474; and an election made under a mis- 
 take does not conclude her ; 1 Bro. C. C. 445 ; 
 12 Ves. Jr. 136; Snelgrove v. Snelgrove, 4 
 Dessaus. (S. C.) 274; but if she is acquaint- 
 ed with the material facts the election will 
 bind her even though she do not understand 
 her legal rights ; Light v. Light, 21 Pa. 407. 
 But see McDaniel v. Douglas, 6 Humph. 
 (Tenn.) 220 ; Davis v. Davis, 11 Ohio St. 386. 
 Nor is she concluded by an election procured 
 by fraud ; Smart v. Waterhouse, 10 Yerg. 
 (Tenn.) 94; Morrison v. Morrison's Widow, 
 
 2 Dana (Ky.) 13. In some cases an election 
 is implied, but so much dilliculty is found to 
 exist with respect to what constitutes an im- 
 
 plied election that it will generally remain 
 to be determined by the circumstances of 
 each case. See 1 Lead. Cas. in Eq. .~>.".7. ."7". 
 and cases cited; Blunt v. Gee, 5 Call (Ya.) 
 481; Upshaw v. Opshaw, 2 lien. & Mun. 
 (Va.) 381, 3 Am. Dec. 632; Reed v. 1 
 man, 12 Pick. ("Mass. i 110; Bradford v. 
 Kent, 43 Pa. 474 ; Thompson's Lessee v. 
 Hoop, 6 Ohio St. 4S0; Craig's Heirs v. 
 Walthall, 14 Gratt (Ya.) 51S. A widow's 
 administrator cannot sell land orig 
 longing to her, where her husband by his 
 will dealt with it as his, and she for nine 
 years had elected to take under his will: 
 Hoggard v. Jordan, 140 X. C. 610, ■"•:'• S. E. 
 220, 4 L. R. A. (X. S.) 1065, <". Ann 
 
 In many states, if deprived of the provi- 
 sion given in lieu of dower, the widow is en- 
 titled to demand her dower; 2 Scribn. Dow. 
 525; Thompson v. Egbert, 17 X. J. L. 459; 
 if the deprivation be substantial though not 
 total; Hastings v. Clifford, 32 Me. lo2; or if 
 a previous application for dower hae 
 refused; Thompson v. McGaw, 1 Mete. 
 (Mass.) 6G; or the statutory period for de- 
 mand has passed before she was advised of 
 the failure of her provision; I last i s 
 Clifford, 32 Me. 132; or she had previously 
 elected to take under the will; Hone's Ex'rs 
 v. Yan Schaick, 20 Wend. (X. Y.) r,<;4. In 
 taking a testamentary provision in lieu of 
 dower the widow becomes a purchaser for a 
 valuable consideration; 1 Lead. Cas. in Eq. 
 511, 570; 2 Scribn. Dow. 527; Warren v. 
 Morris, 4 Del. Ch. 289. 
 
 In cases not covered by statute a widow may be 
 required to elect upon general equitable principles. 
 In the case last cited, she being also a legatee of 
 one-third of the estate "according to law," was held 
 to be put to her election, not under the statute but 
 under the general doctrine of equity which is thus 
 stated by Bates, Ch. "This doctrine precludes a 
 party taking a benefit by deed or will from 
 ing any title or claim clearly inconsistent with the 
 provisions of the instrument under which he takes 
 — putting him to his election between the two. Iu 
 its application to dower it is nowhere better stated 
 than by our court of appeals in Kinspy v. Wood- 
 ward, 3 Harr. (Del.) 464. 'In regard to dower it 
 seems from all the cases to be an established rule 
 that a court of equity will not compel the widow 
 to make her election, unless it be shown by the ex- 
 press words of the testator, that the devise or be- 
 quest was given in lieu or satisfaction of dower ; 
 or unless It appears that such was the testator's 
 Intention, by clear and manifest implication arising 
 from the fact that the dower is plainly inconsistent 
 with the devise or bequest, and so repugnant to the 
 will as to defeat its provisions. If both claims can 
 stand consistently together, the widow is entitled 
 to both, although the claim under the will may be 
 much greater in value than her dower.' " 2 S. & 
 L. 451; 3 Ves. Jr. 249; 1 Drew. 411; Dru. & War. 
 107 ; 3 Kay & J. 257 ; Adsit v. Adsit, 2 John. Ch. 
 (N. Y.) 451, 7 Am. Dec. 539. 
 
 If a beneficiary elects to take against the 
 will, the amount of compensation to be paid 
 to a disappointed legatee must be ascertain- 
 ed as of the time of testator's death, and 
 not the date of election ; [1905] 1 Ch. 16. 
 
 Of Remedies. A choice between two or 
 more means of redress for an injury or the 
 punishment of a crime allowed by law.
 
 ELECTION OF RIGHTS 
 
 992 
 
 ELECTION OF RIGHTS 
 
 The selection of one of several forms of 
 action allowed by law. 
 
 The choice of remedies la a matter demanding 
 practical judgment of what will, upon the whole, 
 best secure the end to be attained. Thus, a remedy 
 may be furnished by law or equity, and at law, in a 
 variety of actions resembling each other in some 
 particulars. Actually, however, the choice is great- 
 ly narrowed by statutory regulations in modern 
 law, in most cases. See 1 Chit. PI. 207-214. 
 
 Where a party has two inconsistent reme- 
 dies, and brings suit on one with knowledge 
 of the facts and his rights therein, he can- 
 not thereafter sue on.the other; A. Klipstein 
 & Co. v. Grant, 141 Fed. 72, 72 C. C. A. 511. 
 But it is held that where a wrong has been 
 inflicted, and the party is doubtful which of 
 two inconsistent remedies is the right one, 
 he may pursue both until he recovers 
 through one; Rankin v. Tygard, 198 Fed. 
 795. Supreme Court Equity Rule 25 provides 
 that relief in a bill may be sought in alter- 
 native forms. 
 
 A person may often choose whether he will 
 sue in tort or contract. If his goods are 
 taken from him by fraud he may sue for 
 the price in assumpsit, or bring an action of 
 replevin or trover; Pike v. Bright, 29 Ala. 
 332; Watson v. Stever, 25 Mich. 386; Hud- 
 son v. Gilliland. 25 Ark. 100; Roberts v. Ev- 
 ans, 43 Cal. 3S0; Phelps v. Conant, 30 Vt. 
 277 ; Rogers v. Inhabitants of Greenbush, 57 
 Me. 441. But where a principal had recov- 
 ered from a fraudulent agent for money had 
 and received, it was held he could later sue 
 the third party who had bought from the 
 agent, in conversion; [1900] 1 K. B. 54; crit- 
 icized in 16 L. Q. Rev. 160. And when two 
 actions are pending at law or in equity be- 
 tween the same persons and for the same 
 subject-matter, the plaintiff is usually com- 
 pelled to elect which one he will maintain ; 
 Central R. Co. of New Jersey v. R. Co., 32 
 N. J. Eq. 67 ; Hause v. Hause, 29 Minn. 252, 
 13 N. W. 43; McRae v. Singleton, 35 Ala. 
 297. But an election is not usually compel- 
 led between domestic and foreign suits; In 
 re Bininger, 7 Blatchf. 159, Fed. Cas. No. 
 1,417 ; Wood v. Lake, 13 Wis. 94 ; and a fore- 
 closure of a mortgage and a suit on the bond 
 or note secured by it as well as actions to 
 enforce admiralty liens and at the same time 
 recover on the debt are also exceptions ; 
 Morgan v. Sherwood, 53 111. 171 ; Russell v. 
 Alvarez, 5 Cal. 48 ; The Kalorama, 10 Wall. 
 (U. S.) 204, 19 L. Ed. 941; Ober t. Gallag- 
 her, 93 U. S. 199, 23 L. Ed. 829. 
 
 It may be laid down as a general rule that 
 when a statute prescribes a new remedy the 
 plaintiff has his election either to adopt such 
 remedy or proceed at common law. Such 
 statutory remedy is cumulative, unless the 
 statute expressly or by necessary implica- 
 tion takes away the common-law remedy ; 
 Miles v. O'Hara, 1 S. & R. (Pa.) 32; Booker's 
 Ex'rs v. McRoberts, 1 Call (Va.) 243; Bear- 
 Camp-River Co. v. Woodman, 2 Greenl. (Me.) 
 404; Mayor, etc., of Baltimore v. Howard, 6 
 
 Har. & J. (Md.) 383; Coxe v. Robbins, 9 N. 
 J. L. 384. 
 
 The commencement and trial of an action 
 on a contract is not such an election of rem- 
 edies as would estop plaintiff from suing on 
 the notes ; Fifield v. Edwards, 39 Mich. 267 ; 
 Kingsbury v. Kettle, 90 Mich. 476, 51 N. W. 
 541. 
 
 Where a plaintiff has separate and concur- 
 rent remedies against a number of parties, 
 he loses no rights by suing some and after- 
 wards discontinuing his action; Bishop v. 
 McGillis, 82 Wis. 120, 51 N. W. 1075. See 
 Russell v. McCall, 141 N. Y. 437, 36 N. E. 
 498, 38 Am. St. Rep. 807. An unsatisfied 
 judgment on a note will not bar an action 
 on notes taken as collateral security ; Black 
 v. Reno, 59 Fed. 917. 
 
 By joining his wife in a suit for her lega- 
 cy, a husband exercises his election to treat 
 it as joint property ; Wingate v. Parsons, 4 
 Del. Ch. 117. 
 
 After a suit in replevin has been discon- 
 tinued before judgment without obtaining 
 any benefit, because plaintiff has paid the 
 value of the goods to satisfy his replevin 
 bond, this suit does not constitute such an 
 election of remedy as to stop him from 
 claiming payment of the -purchase price out 
 of the assets of the purchaser's estate ; Bol- 
 ton Mines Co. v. Stokes, 82 Md. 50, 33 Atl. 
 491, 31 L. R. A. 789. Bringing trover for 
 possession of goods by mistake will not pre- 
 clude a subsequent action of assumpsit for 
 their purchase price ; Clark v. Heath, 101 
 Me. 530, 64 Atl. 913, 8 L. R. A. (N. S.) 144. 
 
 In Criminal Law. The choice or determi- 
 nation by a prosecuting officer, upon which of 
 several charges, or counts, in an indictment 
 he will proceed to trial. 
 
 No objection can be raised, either on de- 
 murrer or in arrest of judgment, though the 
 defendant or defendants be charged in dif- 
 ferent counts of an indictment with different 
 offences of the same kind. Indeed, on the 
 face of the record, every count purports to 
 be for a separate offence, and in misdemean- 
 ors it is the daily practice to receive evi- 
 dence of several libels, several assaults, sev- 
 eral acts of fraud, and the like, upon the 
 same indictment. In cases of felony, the 
 courts, in the exercise of a sound discretion, 
 are accustomed to quash indictments con- 
 taining several distinct charges, when it ap- 
 pears, before the defendant has pleaded and 
 the jury are charged, that the inquiry is to 
 include several crimes. When this circum- 
 stance is discovered during the progress of 
 the trial, the prosecutor is usually called up- 
 on to select one felony, and to confine him- 
 self to that, unless the offences, though in 
 law distinct, seem to constitute in fact but 
 parts of one continuous transaction. Thus, 
 if a prisoner is charged with receiving sev- 
 eral articles, knowing them to have been 
 stolen, and it is proved that they were re- 
 ceived at separate times, the prosecutor may
 
 ELECTION OF RIGHTS 
 
 993 
 
 ELECTIONS IN CORPORATIONS 
 
 be put to his election; but if it is possible 
 that all the goods may have been received 
 at one time, he cannot be compelled to aban- 
 don any part of his accusation; 1 Mood. 1 l''»; 
 2 Mood. & R. 524. In another case, the de- 
 fendant was charged in a single count with 
 uttering twenty-two forged receipts, which 
 were severally set out and purported to be 
 signed by different persons, with intent to 
 defraud the king. His counsel contended 
 that the prosecutor ought to elect upon 
 which of these receipts he would proceed, 
 as amidst such a variety it would be almost 
 impossible for the prisoner to conduct his 
 defence. As, however, the indictment alleg- 
 ed that they were all uttered at one and the 
 same time, and the proof corresponded with 
 this allegation, the court refused to inter- 
 fere; and all the judges subsequently held 
 that a proper discretion had been exercised ; 
 2 Leach 877 ; 2 East, PI. Cr. 934. See 11 CI. 
 & F. 155; Harman v. Com., 12 S. & R. (Pa.) 
 69; Burk v. State, 2 liar. & J. (Md.) 426; 
 People v. Rynders, 12 Wend. (N. Y.) 426; 
 Com. v. Bennett, 118 Mass. -143; Van Sickle 
 v. People, 29 Mich. 61; State v. Mallon, 75 
 Mo. 355. 
 
 The state need not elect on which count 
 of an indictment it will proceed to trial. 
 where the several counts relate to the same 
 transaction; State v. Houx, 109 Mo. 654, 19 
 S. W. 35, 32 Am. St. Rep. 686. 
 
 The artificial distinction between felonies and mis- 
 demeanors is, in most jurisdictions, obsolete, and in 
 most states several distinct offences to which a sim- 
 ilar punishment is attached may be joined. It 
 usually rests with the court whether it will compel 
 a prosecuting officer to elect which count to proceed 
 on ; State v. Hood, 51 Me. 363 ; Com. t. Sullivan, 
 104 Mass. 552 ; Beasley v. People, 89 111. 571 ; State 
 v. Green, 66 Mo. 632 ; Whart. Crim. PI. & Pr. § 293. 
 The election should be made before opening the case 
 of the defence ; Gilbert v. State, 65 Ga. 449. 
 
 ELECTION DISTRICT. A subdivision of 
 territory, whether of state, county, or city, 
 the boundaries of which are fixed by law, 
 for convenience in local or general elections. 
 Chase v. Miller, 41 Pa. 403. 
 
 ELECTIONS IN CORPORATIONS. The 
 
 power of election by corporations may apply 
 either to corporate officers generally, or to 
 the selection of new members to fill vacan- 
 cies in those corporations, whose nature and 
 composition require them to consist of mem- 
 bers and not of holders of capital stock, as 
 eleemosynary corporations. The election of 
 members of a corporation of the former 
 class is, in general, regulated by the char- 
 ter, or other constituent law of the corpora- 
 tion, or by its by-laws, and their provisions 
 must be strictly followed. In the absence of 
 express regulations it is a general principle 
 that the power of election of new members, 
 or when the number is limited, of supplying 
 vacancies, is an inherent power necessarily 
 implied in every corporation aggregate. It 
 is said to result from the principle of self- 
 Bouv.— 63 
 
 preservation; 2 Kent 293; 1 Rolle, Abr. 513; 
 8 East 272. 
 
 If the right and power of election is not 
 adequately prescribed by the charter, a cor- 
 poration has power to make by-laws consist- 
 ent with the charter, and not contrary to 
 law, regulating the time and manner of elec- 
 tions and the qualifications of electors, and 
 manner of proving the same; 3 Term 189; 
 Com. v. Woelper, 3 S. & R. (Pa.) 29, 8 Am. 
 Dec. 628; Com. v. Detwiller, 131 Pa. 614, 18 
 Atl. 990, 992, 7 L. R. A. 357. 360; and if there 
 be no by-law established usage will be re- 
 sorted to; Juker v. Com., 20 Pa. 484. In 
 many states there are general statutes on 
 this subject, and in such case they must be 
 strictly followed : 1 Thomp. Corp. § 745. 
 
 Unless under express provision as to spe- 
 cial meetings, or filling vacancies, elections 
 of officers are held at regular meetings of 
 the corporation. The time is nearly, if not 
 always, regulated by statute, charter, or by- 
 laws, and such cases as are found on the 
 subject are not as to any general principle; 
 
 I Thomp. Corp. § 701; the date cannot be 
 changed by directors so as, by postponement 
 of an annual election, to lengthen their 
 terms ; Mottu v. Primrose, 23 Md. 482 ; a 
 business meeting of a benevolent corpora- 
 tion may be held on Sunday ; Teople v. 
 Benev. Society, 65 Barb. (N. T.) 357; and a 
 charter provision requiring the choice of di- 
 rectors at an annual meeting was held t<> 
 be directory and not exclusive; IIuu' 
 Parker, 20 N. H. 58. 
 
 The place of meeting for elections is also 
 usually regulated by the law of the corpo- 
 ration itself, and if there be none, it should 
 unquestionably be done at its usual and 
 principal place of business, or where it ex- 
 ercises its corporate functions. This is for 
 corporate purposes its domicil, (q. v.) and 
 the term residence is also applied to corpora- 
 tions, as the place where its business is 
 done; Bristol v. R. Co., 15 111. 43(5; Chicago, 
 D. & V. K. Co. v. Bank, 82 111. 493 ; while it 
 is a citizen only of the state by which it was 
 created; id. In the latter state only may 
 constituent acts be done; Bank of Augusta 
 v. Earle, 13 Pet. (U. S.) 519, 5S8, 10 L. Ed. 
 274; Galveston, II. & II. R. Co. v. Cowdrey, 
 
 II Wall. (U. S.) 459, 476, 20 L. Ed. 199; 
 Hilles v. Parrish, 14 N. J. Eq. 380. See also 
 Arms v. Conant, 36 VL 750; Ohio & M. R. 
 Co. v. McPherson, 35 Mo. 13, 86 Am. Dec. 
 128. Accordingly it lias been held that votes 
 and similar acts outside of the state creat- 
 ing it are void ; Miller v. Ewer, 27 Me. 509. 
 46 Am. Dec. 619 ; even under a provision au- 
 thorizing the calling of a first meeting at 
 such a time or place as they think proper; 
 id.; but the appointment in one state of a 
 secretary, by the directors of a manufactur- 
 ing corporation of another state, has been 
 held valid: McCall v. Mfg. Co., 6 Conn. 428; 
 and a corporation created by a concurrent
 
 ELECTIONS IN CORPORATIONS 994 ELECTIONS IN CORPORATIONS 
 
 legislation of two states may hold meetings 
 for elections in either; Covington & C. 
 Bridge Co. v. Mayer, 31 Ohio St. 317. In 
 some states, as Minnesota, the Dakotas, and 
 Colorado, the holding of such meetings is 
 permitted outside of the state; and in the 
 latter state it is held that the fact that the 
 annual meeting was held outside of the state 
 cannot be raised in a collateral proceeding; 
 Humphreys v. Mooney, 5 Colo. 282. Under 
 an authority to call special meetings on no- 
 tice of time and place, they may be called 
 by the president at a place other than the 
 regular place of business; Corbett v. Wood- 
 ward, 5 Sawy. 403, Fed. Cas. No. 3,223 ; and 
 at such a meeting an election may be held 
 if otherwise legal. Where no place is named 
 in the charter, the directors may designate 
 it, and officers elected at such meeting will 
 be such de facto; Com. v. Smith, 45 Pa. 59. 
 Meetings for the election of officers follow- 
 ing the law of the corporation must be called 
 by the person or persons designated for that 
 purpose ; Congregational Society of Bethany 
 v. Sperry, 10 Conn. 200; Reilly v. Oglebay, 
 25 W. Va. 3G ; though it has been held that 
 it need not always be by formal action or 
 with strictness of procedure if it is done by 
 their direction; Hardenburgh v. Bank, 3 N. 
 J. Eq. 68; Citizens' Mut. Fire Ins. Co. V. 
 Sortwell. 8 Allen (Mass.) 217; contra; Reil- 
 ly v. Oglebay, 25 W. Va. 36; Goulding v. 
 Clark, 34 N. H. 148; Third School District 
 in Stoughton v. Atherton, 12 Mete. (Mass.) 
 105; they must be duly assembled; German 
 Evangelical Congregation v. Pressler, 14 La. 
 Ann. 799 ; whether of stockholders ; Peirce 
 v. Building Co., 9 La. 397, 29 Am. Dec. 448 ; 
 or directors ; Despatch Line of Packets v. 
 Mfg. Co., 12 N. H. 205, 37 Am. Dec. 203 ; El- 
 liot v. Abbot, 12 N. H. 549, 37 Am. Dec. 227 ; 
 Herrington v. District Tp. of Liston, 47 la. 
 11; upon due 'notice; 5 Burr. 2681; in ac- 
 cordance with charter or by-laws; Cogswell 
 v. Bullock, 13 Allen (Mass.) 90; Stow v. 
 Wyse, 7 Conn. 214, 18 Am. Dec. 99; Stock- 
 holders of Shelby R. Co. v. R. Co., 12 Bush 
 (Ky.) 62; and when there is no provision 
 as to method, personal notice is proper ; 
 Stow v. Wyse, 7 Conn. 214, 18 Am. Dec. 99 ; 
 or according to general statute law, if there 
 be such ; In re Long Island R. Co., 19 Wend. 
 (N. Y.) 37, 32 Am. Dec. 429; but, though it 
 is safer and better practice to give notice, 
 in case of stated meetings for regular elec- 
 tions, notice is not required, but the mem- 
 bers are charged with notice of them ; Samp- 
 son v. Mill Corp., 36 Me. 78 ; 4 B. & C. 441 ; 
 Atlantic Mut. Fire Ins. Co. v. Sanders, 36 
 N. H. 252; People v. Peck, 11 Wend. (N. Y.) 
 604, 27 Am. Dec. 104 ; while of special meet- 
 ings there must always be notice; 2 H. L. 
 Cas. 789; People v. Batchelor, 22 N. Y. 128; 
 Com. v. Guardians of Poor of Philadelphia, 
 6 S. & R. (Pa.) 469; and the failure to not- 
 tify a single member will avoid the proceed- 
 
 ings, 5 Burr. 2681 ; 4 B. & C. 441 ; 4 A. & E. 
 538; People v. Batchelor, 22 N. Y. 128; un- 
 less notice is waived by attendance, as, if 
 all are present, each of them waives the 
 want or irregularity of notice ; Jones v. 
 Turnpike Co., 7 Ind. 547; People v. Peck, 
 11 Wend. (N. Y.) 604, 27 Am. Dec. 104. 
 Such waiver will not operate as against a 
 positive direction of the charter; 1 Dill. 
 Mun. Corp. § 264 ; and when there is no pro- 
 vision as to notice it must be personal ; Sav- 
 ings Bank of New Haven v. Davis, 8 Conn. 
 191 ; Wiggin v. First Freewill Baptist 
 Church, 8 Mete. (Mass.) 301; Harding v. 
 Vandewater, 40 Cal. 77. 
 
 As to what constitutes a quorum at elec- 
 tions, see Meetings ; Quoeum. 
 
 As to all the details of the conduct of elec- 
 tions, the provisions of state statutes, char- 
 ters, or by-laws, must be strictly pursued 
 and will generally be found to cover the 
 subject. Where a statute provided for three 
 inspectors, it was held that two could act ; 
 In re Excelsior Fire Ins. Co., 16 Abb. Pr. 
 (N. Y.) 8. The method of appointment pre- 
 scribed must be strictly followed; People v. 
 Peck, 11 Wend. (N. Y.) 604, 27 Am. Dec. 104; 
 though in certain emergencies the corpora- 
 tors may appoint; Matter of Wheeler, 2 Abb. 
 Pr. N. S. (N. Y.) 361; and a candidate has 
 been held not disqualified; Ex parte Will- 
 cocks, 7 Cow. (N. Y.) 402, 17 Am. Dec. 525; 
 but this is so contrary to well settled and 
 judicious legal principles that it cannot be 
 considered desirable. An election otherwise 
 valid will not be avoided because inspectors 
 were not sworn ; In re Chenango County 
 Mut. Ins. Co., 19 Wend. (N. Y.) 635; or the 
 oath taken not subscribed by them ; Matter 
 of Wheeler, 2 Abb. Pr. N. S. (N. Y.) 361. 
 In the absence of a statute to the contrary, 
 their duties are ministerial, and they cannot 
 act upon the challenge of a vote except to 
 follow the transfer books ; In re Long Island 
 R. Co., 19 Wend. (N. Y.) 37, 32 Am. Dee. 429; 
 or put the challenged party on oath ; id. 
 note; or pass judicially upon proxies regu- 
 lar on their face ; In re Election of Direc- 
 tors of St. Lawrence Steamboat Co., 44 N. 
 J. L. 529 ; because not acknowledged or wit- 
 nessed ; In re Cecil, 36 How. Pr. (N. Y.) 
 477 ; but this would be otherwise if, as is 
 often the case, the charter requires witness- 
 es. They may not reject votes once receiv- 
 ed; Hartt v. Harvey, 10 Abb. Pr. (N. Y.) 
 321; nor go beyond the ballot to ascertain 
 the intentiop of the voter; Loubat v. Le 
 Roy, 15 Abb. N. C. (N. Y.) 16. Ballots in 
 which only the initials of a candidate were 
 inserted have been held sufficient wben it 
 was determined by a verdict who was in- 
 tended thereby ; People v. Seaman, 5 Denio 
 (N. Y.) 409. If the statutes provide that 
 only a certain number are to be chosen, bal- 
 lots containing more names will not be 
 counted; State v. Thompson, 27 Mo. 365;
 
 ELECTIONS IN CORPORATIONS 
 
 995 
 
 ELECTIONS IN CORPORATIONS 
 
 2 Burr. 1020 ; votes for ineligible candidates 
 were formerly held to be "thrown away," 
 2 Burr. 1021 note; but it has been held in a 
 later case that such votes will not give the 
 election to a minority candidate unless the 
 voters knew of the ineligibility; In re Elec- 
 tion of Directors of St. Lawrence Steam- 
 boat Co., 11 X. J. L. .",20. 
 
 There is no common-law right to vote by 
 proxy, except in England in the House of 
 Lords; 1 Bla. Com. 168; Com. v. Detwiller. 
 131 Pa. 623, 18 Atl. 910, 992, 7 L. R. A. :;.~>7. 
 oG0; and in pul lie or municipal corporations, 
 voting can only be done in person ; 2 Kent 
 294; in private corporations, the right of 
 voting by proxy is usually conferred by 
 charter and the weight of authority is that, 
 if not so conferred, it may be done by by- 
 law; id. 295; Com. v. Detwiller, 131 Pa. 614, 
 18 Atl. 919, 992, 7 L. R. A. 357, 360; People 
 v. Crossley, 69 111. 195 ; Moraw. Corp. § 4SG ; 
 contra; People v. Twaddell, 18 Hun (N. Y. I 
 427; Taylor v. Griswold, 14 N. J. L. 222, 27 
 Am. Dec. 33. A proxy may be revoked, even 
 if given for a valuable consideration, if 
 about to be used fraudulently ; Reed v. 
 Bank, 6 Paige Ch. (N. Y. ) :;::T; and voting 
 by proxy in fraud or violation of the char- 
 ter may be restrained by injunction; Camp- 
 bell v. Poultney, Ellicott & Co., 6 Gill & J. 
 (Md.) 94, 26 Am. Dec. 559. A certificate of 
 election is not essential ; People v. Peck, 11 
 Wend. (N. Y.) 604, 27 Am. Dec. 104; but it 
 is, when valid on its face, prima facie evi- 
 dence of election ; Hartt v. Harvey, 10 Abb. 
 Pr. (N. Y.) 321; but a court on quo xvarran- 
 to, may go behind it; People v. Vail, 20 
 Wend. (N. Y.) 12. 
 
 It is probable' that at common law each 
 stockholder is entitled to but one vote with- 
 out respect to the number of shares held. 
 In public and municipal corporations un- 
 doubtedly each member has but one vote, 
 and it is said in connection with the state- 
 ment of this principle: "This rule has been 
 applied to stockholders in a private corpo- 
 ration, and it has been held that such a 
 shareholder has but one vote ; Cook, Stock 
 & Stockholders, § 608. But this writer, after 
 adverting to the almost universal practice 
 of providing by constitution, statute, or char- 
 ter for a vote to each share of stock adds, 
 "at the present day it is probable that no 
 court, even in the absence of such provision, 
 would uphold a rule which disregards the 
 number of shares which the shareholder 
 holds in the corporation ; " id. And after a 
 reference to the same common-law rule it 
 is said : "But there are good reasons for 
 holding that this rule has no application to 
 ordinary joint stock business corporations 
 of the present day ; " Moraw. Corp. § 476. 
 Where the charter declared that the by- 
 laws may make provision for the conduct of 
 elections, it was held that a corporation 
 might enact a by-law giving to stockholders 
 
 a vote for each share of stock ; Com. v. Det- 
 willer, 131 Pa. G14, 18 Atl. 990, 9!»L'. 7 L. R. 
 A. 357, 360. 
 
 See Meetings; Pboxy; Quorum ; Cumula- 
 tivi; Voting. 
 
 ELECTOR. One who has the right to 
 
 make choice of public otDcers ; one who has 
 a right to vote. See Taylor v. Taylor, 10 
 Minn. 107, (Gil. 81). See Presidential 
 Electors. 
 
 One who exercises the right of election in 
 equity. The term is sometimes used in this 
 sense. Brett, L. Cas. Mod. Eq. 2.~>7. 
 
 In the German Empire the name was giv- 
 en to those great princes who had the right 
 to elect the emperor or king. The office of 
 elector in some instances became hereditary 
 and was connected with territorial posses- 
 sions as, elector of Saxony. 
 
 ELECTORAL COLLEGE. A name given 
 to the presidenti.il electors, when met to 
 vote for president and vice-president of the 
 United States, by analogy to the college of 
 cardinals, which elects the pope, or the body 
 which formerly selected the German emper- 
 or. It is, according to the more general us- 
 age, applied to the electors chosen by a sin- 
 gle state, but is also used to designate those 
 chosen throughout the United States. 
 
 This term has no strict legal or technical mean- 
 ing, and being unknown to the constitution and laws 
 of the United States, its use is purely colloquial. 
 Accordingly the term is not clearly defined, 
 is employed by approved writers in both the senses 
 stated, though more frequently when reference is 
 made to the entire body of electors the plural is 
 employed, as, "the expectations of the public . . . 
 (have) been so completely frustrated as in the prac- 
 tical operation of the system, so far as relates to 
 the independence of the electors in the electoral 
 colleges;" 2 Sto. Const. § 14G3 ; "... would be 
 chosen as electors, and would, after mature delib- 
 eration in their respective colleges," etc. ; 1 Hare, 
 Am. Const. L. 219 ; "the electoral colleges have 
 sunk so low" ; id. 221. So in speaking of the elec- 
 tors the phrase "state colleges" is used by Stevens, 
 Sources of the Constitution of the U. S. 153, note. 
 Following this view is the following definition: A 
 name informally given to the electors of a single 
 state when met to vote for president and vice-presi- 
 dent of the United States, and sometimes to the 
 whole body of electors. Cent Diet. 
 
 On the other hand, the other use is well sustained 
 by authority, and we find this definition: The body 
 of electors chosen by the people to elect their presi- 
 dent. Encyc. Diet. This is supported by W 
 and Worcester as well as some authorities on con- 
 stitutional law. "The presidential electors chosen as 
 therein directed, constitute what is commonly called 
 the 'electoral college';" Black, Const L. 86; and 
 again, "by an electoral college appointed or elected 
 in the several states" ; id. "In case the electoral 
 college fails to choose a vice-president, the power'de- 
 volves on the senate to make the selection from the 
 two candidates having the highest number of votes." 
 1 Calhoun's Works, 175. See Presidential Elec- 
 tors. 
 
 ELECTORAL COMMISSION. A commis- 
 sion created by an act of congress of Janu- 
 ary 29, 1S77, to decide certain questions aris- 
 ing out of the presidential election of No- 
 vember, 1S76, in which Hayes and Wl 
 had been candidates of the republican party
 
 ELECTORAL COMMISSION 
 
 996 
 
 ELECTORAL COMMISSION 
 
 and Tilden and Hendricks of the democratic 
 party. The election was very close, and de- 
 pended on the electoral votes of South Caro- 
 lina, Florida, and Louisiana. It was feared 
 that there would be much trouble at the final 
 counting of the votes by the president of the 
 senate according to the plan laid down in 
 the Constitution. The republicans had a 
 majority in the senate and the democrats 
 had a majority in the house of representa- 
 tives. A resolution was adopted by congress 
 for the appointment of a committee of seven 
 members by the speaker to act in conjunc- 
 tion with a similar committee that might be 
 appointed by the senate to prepare a report 
 and plan for the creation of a tribunal to 
 count the electoral votes whose authority no 
 one would question and whose decision all 
 would accept as final. The joint committee 
 thus appointed reported a bill providing for 
 a commission of fifteen members, to be com- 
 posed of five members from each house ap- 
 pointed viva voce, with four associate jus- 
 tices of the supreme court, which latter 
 would select another of the justices of the 
 supreme court, the entire commission to be 
 presided over by the associate justice longest 
 in commission. This body has since been 
 known as the Electoral Commission. 
 
 Justices Clifford, Miller, Field, and Strong 
 were named in the act as members, and they 
 chose as the fifth justice Justice Bradley. 
 The other members were Senators Bayard, 
 Edmunds, Frelinghuysen, Morton, and Thur- 
 man, and Representatives Abbott, Garfield, 
 Hoar, Hunton, and Payne. 
 
 The commission began its sessions Febru- 
 ary 1, and completed its work March 2, 1877. 
 Various questions came before it in regard 
 to the electoral vote of South Carolina, 
 Florida, and Louisiana, as to which of two 
 state returns was valid, and as to the eligi- 
 bility of certain of the presidential electors. 
 The most important decision of the commis- 
 sion and the one which has caused most 
 comment and criticism was to the effect that 
 the regular returns from a state must be ac- 
 cepted, and that the commission had no pow- 
 er to go behind these returns ; or, as the com- 
 mission itself expressed it, "that it is not 
 competent under the Constitution and the 
 law as. it existed at the date of the passage 
 of said act, to go into evidence aliunde the 
 papers opened by the president of the senate 
 in the presence of the two houses, to prove 
 that other persons than those regularly cer- 
 tified to by the governor of the state of 
 Florida in and according to the determina- 
 tion and declaration of their appointment by 
 the Board of State Canvassers of said state 
 prior to the time required for the perform- 
 ance of their duties, had been appointed 
 electors, or by counter-proof to show that 
 they had not, and that all proceedings of 
 the courts or acts of the legislature or of the 
 executive of Florida subsequent to the cast- 
 
 ing of the votes of the electors on the pre- 
 scribed day are inadmissible for any such 
 purpose." 2 Curtis, Const. Hist of U. S., 
 410. 
 
 The result of the controversy over the 
 election of 1S76 was the passage, after long 
 and earnest consideration, of the Act of 
 Feb. 3, 1SS7, to regulate the counting of the 
 electoral votes for president and vice-presi- 
 dent. U. S. R. S. 1 Supp. 525. See Presi- 
 dential Electors ; President of the Unit- 
 ed States; 38 Am. L. Rev. L 
 
 ELECTRIC COMPANIES. Such compa- 
 nies, although not public corporations in the 
 sense that the term is applied to municipal 
 corporations; Croswell Elec. § 20; and be- 
 ing unable without statutory authority to 
 claim an exemption of property from the or- 
 dinary mechanic's lien; Badger Lumber Co. 
 v. Power Co., 48 Kan. 182, 29 Pac. 476, 15 
 L. R. A. 652, 30 Am. St. Rep. 301 ; are held 
 to exercise a public use and are of a public 
 character similar to telegraph and telephone 
 companies; Opinion of Justices, 150 Mass. 
 592, 24 N. E. 1084, 8 L. R. A. 4S7; Linn v. 
 Chambersburg Borough, 160 Pa. 511, 28 Atl. 
 842, 25 L. R. A." 217; Thompson-Houston 
 Electric Co. v. City of Newton, 42 Fed. 723; 
 City of Crawfordsville v. Braden, 130 Ind. 
 149, 28 N. E. 849, 14 L. R. A. 268, 30 Am. 
 St. Rep. 214. Poles and wires erected for 
 lighting city streets are a public use and 
 constitute no additional burden; Tuttle v. 
 Illuminating Co., 50 N. Y. Super. Ct. 464; 
 People v. Thompson, 65 How. Pr. (N. Y.) 407, 
 affirmed in 32 Hun (N. Y.) 93; Tiffany & 
 Co. v. Illuminating Co., 51 N. Y. Super. Ct. 
 2S6; Johnson v. Electric Co., 54 Hun 469, 
 7 N. Y. Supp. 716; Gulf Coast Ice & Mfg. 
 Co. v. Bowers, 80 Miss. 570, 32 South. 113 ; 
 Halsey v. Ry. Co., 47 N. J. Eq. 380, 20 Atl. 
 859; Loeber v. Electric Co., 16 Mont. 1, 39 
 Pac. 912, 50 Am. St Rep. 468; but not 
 where a pole shut off free access to a store; 
 Tiffany & Co. v. Illuminating Co., 51 N. Y. 
 Super. Ct. 280. The same general rule may 
 be applied to rural highways; Palmer v. 
 Electric Co., 158 N. Y. 231, 52 N. E. 1092, 
 43 L. R. A. 672; contra, Haverford Electric 
 Light Co. v. Hart, 13 Pa. Co. Ct. 369. In 
 the case of private lighting, such use en- 
 titles the owner to compensation; Callen v. 
 Electric Light Co., 66 Ohio 166, 64 N. E. 141, 
 58 L. R. A. 7S2. See, generally, Joyce on 
 Electric Law. 
 
 They are held to be manufacturing com- 
 panies with reference to taxation; People 
 v. Wemple, 129 N. Y. 543, 29 N. E. SOS, 14 
 L. R. A. 70S (reversing People v. Wemple, 
 15 N. Y. Supp. 718); Beggs v. Illuminating 
 Co., 96 Ala. 295, 11 South. 381, 38 Am. St 
 Rep. 94; People v. Wemple, 129 N. Y. 664, 
 29 N. E. 812; contra, Evanston Electric Il- 
 luminating Co. v. Kochersperger, 175 111. 26, 
 51 N. E. 719; Frederick Electric Light & 
 Power Co. v. Frederick City, 84 Md. 599,
 
 ELECTltIC COMPANIES 
 
 907 
 
 ELECTRIC i.hJJPAXIES 
 
 36 Atl. 362, 36 L. R. A. 1.30; Com. v. Light 
 & Power Co., 145 Pa. 105, 22 Atl. 839, 14 
 L. R. A. 107; Com. v. Electric Light Co., 
 1 15 Pa. 131, 22 Atl. S41, 845, 27 Am. St. Rep. 
 683; Com. v. Electric Light Co., 145 Pa. 147, 
 22 Atl. 844. See Globe Mat. Life ins. Ass'n 
 v. Ahern, 191 111. 170, GO X. E. SOG. 
 
 Charter authority to such a company to 
 enter upon any public street of a city for 
 the purpose of its business is held to in- 
 clude! the right to lay conduits beneath the 
 sidewalks; Allegheny County Light Co. v. 
 Booth, 210 Pa. 564, 66 Atl. 72, 9 L. R. A. 
 (N. S.) 404. 
 
 Implied Poioers of the Municipality. The 
 right of a municipality to light the streets 
 is generally conceded as a part of the police 
 power and while usually enumerated in 
 the charters, its omission would not de- 
 prive the city of such right, whether by 
 electricity or other means; City of Craw- 
 fordsville v. Braden, 130 Ind. 149, 28 N. E. 
 819. 14 L. R. A. 268, 30 Am. St. Rep. 214; 
 Mauldin v. City Council of Greenville, 33 
 S. C. 1, 11 S. E. 434, 8 L. R. A. 291; State 
 v. City of Hiawatha, 53 Kan. 477, 36 Pac. 
 1119; Hamilton Gaslight & Coke Co. v. 
 City of Hamilton, 37 Fed. 832; Hamilton 
 Gas Light & Coke Co. v. Hamilton City, 146 
 U. S. 258, 13 Sup. Ct. 90, 36 L. Ed. 963; and 
 the right of the municipality, not only to 
 own, operate, and control an electric light 
 plant, but to raise money for such purpose 
 by taxation has been upheld; City of Craw- 
 fordsville v. Braden, 130 Ind. 149, 28 N. E. 
 849, 14 L. R. A. 268, 30 Am. St. Rep. 214; 
 Mauldin v. City Council of Greenville, 33 
 S. C. 1, 11 S. E. 434, 8 L. R. A. 291; State 
 T. City of Hiawatha, 53 Kan. 477, 36 Pac. 
 1119; and to issue bonds for that purpose; 
 Rushville Gas Co. v. City of Rushville, 121 
 Ind. 212, 23 N. E. 72, 6 L. R. A. 315, 16 Am. 
 St. Rep. 388 ; Hequembourg v. City of Dun- 
 kirk. 49 Hun 550, 2 N. Y. Supp. 447. The 
 contrary view of such implied powers was 
 takeu in Spaulding v. Inhabitants of Pea- 
 body, 153 Mass. 129, 26 N. E. 421, 10 L. R. 
 A. 397, where the court decided that the ex- 
 isting statute giving towns the right to main- 
 tain street lamps and to raise money by 
 taxation for such purpose did not carry 
 with it the right to maintain the more cost- 
 ly electric light plant, and that to authorize 
 such a purchase an express statute must be 
 passed, thus settling a question raised but 
 not decided in Opinion of Justices, 150 
 Mass. 592, 24 N. E. 10S4, 8 L. R. A. 4S7. 
 The Massachusetts case was followed in 
 Posey v. Town of North Birmingham, 154 
 Ala. 511, 45 South. 663, 15 L. R. A. (N. S.) 
 711. 
 
 Commercial Lighting by the Municipality. 
 Where the right of maintaining an electric 
 light plant has been conferred upon towns 
 by statute, it has been usually held to apply 
 as well to private property as to public 
 highways; Thompson-Houston Electric Co. 
 
 v. City of Newton, 11' Fed. 7_'0; City of 
 Crawfordsville v. Braden, 100 Ind. 149, 28 
 X. E. S49, 14 L. It. A. 268, 30 Am. St. Rep. 
 
 214 ; but where it has been only implied 
 from existing statutes the implication will 
 not extend to a commercial use; Mauldin v. 
 City Council of Greenville, 33 S. C 1. 11 S. 
 E. 404, 8 L. R. A. 291; BushvJ 
 v. City of Rushville, 1U1 Ind. I'll'. 23 
 72, 6 L. R. A. 315, 1G Am. St. Rep. 388. Stat- 
 utes conferring such rights are constitution- 
 al; Opinion of the Justices, 150 Mass. 592, 
 
 24 N. E. 1084, 8 L. R. A. 1ST; Linn v. Cham- 
 bersburg Borough, 160 Pa. 511, 28 Atl. 8 12, 
 
 25 L. R. A. 217; Hequembourg v. City of 
 Dunkirk, 49 Hun 550, 2 N. Y. Supp. 417: 
 State v. Allen, 17S Mo. 555, 77 S. W. 
 Mitchell v. City of Xegaunee, 113 Mich. 359, 
 71 N. W. G4G, 3S L. R. A. 157, G7 Am. St. 
 Rep. 46S; Fawcett v. Mt. Airy, 134 N. C. 
 125, 45 S. E. 1029, G3 L. R. A. 870, 101 Am. 
 St. Rep. 825. 
 
 In so far as municipal corporations are 
 engaged in the discharge of the powers and 
 duties imposed upon them by the legislature 
 as governmental agencies of the state, they 
 are not liable for breach of duty by their 
 officers; in that respect the officers are the 
 agents of the state, although selected by the 
 municipality. When acting in their minis- 
 terial or corporate character in the man- 
 agement of property used for their own 
 benefit or profit, discharging powers and du- 
 ties voluntarily assumed for their own ad- 
 vantage, they are liable to an action to per- 
 sons injured by the negligence of their serv- 
 ants, agents and officers; and it is immate- 
 rial whether such servant, agent or officer 
 be a corporation or an individual; City of 
 Owensboro v. Knox's Adm'r, 116 Ky. 451, 76 
 S. W. 191; Emery v. Philadelphia, 20S Pa. 
 492. 57 Atl. 977; Twist v. City of Rochester, 
 165 N. Y. 619, 59 N. E. 1131; City of Em- 
 poria v. Burns, 67 Kan. 523, 73 Pac. 94; 
 Moffitt v. Asheville, 103 N. C. 237, 9 S. E. 
 695, 14 Am. St. Rep. 810; Fisher v. City of 
 New Bern, 140 N. C. 506, 53 S. E. 342, 5 L. 
 R. A. (N. S.) 542, 111 Am. St. Rep. 857, 
 where a commission was established by the 
 legislature to have charge of the electric 
 light, water and sewer systems of a city. 
 It was held that, though one of the pur- 
 poses of the company in the construction of 
 the electric light plant was the illumination 
 of the streets (which possibly might be con- 
 sidered a governmental function), yet the 
 selling the power for profit to shops, resi- 
 dences, etc., would place such a corporation 
 upon the same footing as private individuals 
 engaged in the same business. The city was 
 held responsible for the inirligeuce of the 
 commission in Leaving a live, broken elec- 
 trict light wire en a pole in a much used 
 street, where one stepped upon it and was 
 killed. And to the same effect that a city 
 is liable in the exercise of its business pow- 
 ers, see Davoust v. City of Alameda, 149 Cal.
 
 ELECTRIC COMPANIES 
 
 998 
 
 ELECTRIC COMPANIES 
 
 69, 84 Pac. 760, 5 L. R. A. (N. S.) 536, 9 Ann. 
 Cas. 847; Esberg Cigar Co. v. City of Port- 
 land, 34 Or. 2S2, 55 Pac. 961, 43 L. R. A. 435, 
 75 Am. St. Rep. 651; City of Henderson v. 
 Young, 119 Ky. 224, 83 S. W. 583, 26 Ky. 
 L. Rep. 1152; Twist v. City of Rochester, 
 165 N. Y. 619, 59 N. E. 1131 ; Bullinaster v. 
 City of St. Joseph, 70 Mo. App. 60. 
 
 It has been held that the duty of a city 
 to see that its highways, are in a safe con- 
 dition does not extend to the inspection of 
 the insulation of wires owned by a private 
 corporation, and that recovery cannot be 
 had from the city for a death caused by a 
 banging wire charged by the defective in- 
 sulation of a wire belouging to an electric 
 company; Fox v. Village of Manchester, 183 
 N. Y. 141, 75 N. E. 1116, 2 L. R. A. (N. S.) 
 474. But see, to the contrary, Gladdon v. 
 Borough of Duncannon, 23 Ta. Co. Ct. R. 81, 
 where a borough, manufacturing electricity 
 for the use of its inhabitants, was held not 
 to become thereby an electric light com- 
 pany, so as to be liable under an act pro- 
 viding for the recovery of damage to trees 
 by such companies. 
 
 As to Rights and Privileges. A munici- 
 pality may grant a franchise to an electric 
 light company to use its streets without 
 making such right an exclusive one; Crow- 
 der v. Town of Sullivan, 128 Ind. 4S6, 28 
 X. E. 94, 13 L. R. A. 647; Hanson v. Electric 
 Light Co., 86 la. 722, 48 N. W. 1005, 53 N. 
 W. 84; bu4>it must have legislative author- 
 ity to grant such franchise; Brush Electric 
 Light Co. v. Electric Light Co., 5 Ohio Cir. 
 Ct. 340; Grand Rapids E. L. & P. Co. v. Gas 
 Co., 33 Fed. 659 ; and in Iowa it must be 
 submitted to a vote of qualified electors; 
 Hanson v. Electric Light Co., S6 la. 722, 
 48 N. W. 1005, 53 N. W. 84; City of Keo- 
 kuk v. Electric Co., 90 la. 67, 57 N. W. 689. 
 It may confer the right on one. company to 
 use .poles erected by another company ; Cit- 
 izens' Electric Light & Power Co. v. Sands, 
 95 Mich. 551, 55 N. W. 452, 20 L. R. A. 411; 
 and may fix the compensation to the latter 
 for their use; Toledo Electric St. Ry. Co. 
 v. Power Co., 10 Ohio Cir. Ct. 531; but un- 
 less the limit of such use is fixed and the 
 manner of stringing the wires prescribed 
 such a permission is unreasonable and void; 
 Citizens' Electric Light & Power Co. v. 
 Sands, 95 Mich. 551, 55 N. W. 452, 20 L. R. 
 A. 411; and a company will be enjoined 
 from use of another's poles without permis- 
 sion from the city, the court, or the other 
 company; Hauss Electric Lighting Power 
 Co. v. Electric Co., 23 Wkly. Law Bui. 137. 
 A contract with a gas company to light the 
 streets with gas was held not to deprive the 
 city of the power to contract with another 
 company to furnish electric lights for the 
 same purpose; Parkersburg Gas Co. v. 
 Parkersburg, 30 W. Va. 435, 4 S. E. 650; 
 'Saginaw Gas-Light Co. v. City of Saginaw, 
 28 Fed. 529. The right of the city to grant 
 
 franchises for electric lighting carries wi.h 
 it the right to purchase or operate a plant 
 even if there be an existing organiz d cor- 
 poration and the city violates no contract 
 by so doing; Thompson-Houston Electric 
 Co. v. City of Newton, 42 Fed. 723. As a 
 rule, however, the statutes provide for tho 
 purchase of an existing plant by the munic- 
 ipality and for arbitration in case of dis- 
 agreement as to the price. In Massachu-, 
 setts an existing company is not compelled 
 to sell its property to the town; Citizens' 
 Gas Light Co. v. Wakefield, 161 Mass. 432, 
 37 N. E. 444, 31 L. R. A. 457. 
 
 Conflicting Electrical Companies. Where 
 a telegraph and an electric light company 
 had each obtained a franchise for the use 
 of the same street, it was held that the 
 company which first obtained the franchise 
 was entitled to priority, and the other com- 
 pany must, so adjust its wires as to prevent 
 danger from juxtaposition or interference 
 with the business of the first company; 
 Western Union Tel. Co- v. Light Co., 46 Mo. 
 App. 120; and that where the street was 
 already occupied by the telegraph company 
 the electric light company would be enjoin- 
 ed from placing its wires so near as to in- 
 terfere with the transmission of messages ; 
 id. In the case of a telephone and an elec- 
 tric light company, both having valid fran- 
 chises, the telephone company was refused 
 an injunction against the latter company on 
 the ground that they had first occupied the 
 streets, but on streets not occupied by ei- 
 ther company, the electric light company 
 was enjoined from using the same side of 
 the street for lights and from stringing 
 wires within such a distance as to injure 
 the service of the telephone company; Ne- 
 braska Telephone Co. v. Gas & Electric 
 Light Co., 27 Neb. 284, 43 N. W. 126; 12 
 Ont. 571; Paris Electric Light & Ry. Co. 
 v. Telegraph & Telephone Co. (Tex.) 27 S. 
 W. 902. If two electric light companies 
 have the use of the same street, the first to 
 occupy them has the prior right, and the 
 second company will be restrained from 
 stringing its wires so near as to interfere 
 with the business of the first company or 
 cause danger to the public; Consolidated 
 Electric Light Co. v. Electric Light & Gas 
 Co., 94 Ala. 372, 10 South. 440 (where the 
 decision was based rather on the ground 
 that such juxtaposition of the wires was 
 dangerous to public safety). An electric 
 light corporation, contracting to light a 
 building, must exercise the highest degree of 
 care in the installation of its wires and 
 fixtures, and is liable for injuries sustained 
 by a person handling in the usual way an 
 ordinary incandescent light bulb; Alexan- 
 der v. Light Co., 209 Pa. 571, 5S Atl. 106S, 
 67 L. R. A. 475; to the same effect, Gilbert 
 v. Electric Co., 93 Minn. 99, 100 N. W. 653, 
 106 Am. St. Rep. 430; Memphis Consol. Gas 
 & Electric Co. v. Letson, 135 Fed. 969, 68 C.
 
 ELECTRIC COMPANIES 
 
 999 
 
 ELECTKIC COMPANIES 
 
 C. A. 453; Southern Telegraph & Telephone 
 Co. v. Evans, 54 Tex. Civ. App. 63, 116 S. 
 W. 41S; such a company must use reason- 
 able care to prevent a secondary current 
 from being charged with a high voltage 
 current; Witmer v. Electric Light & Power 
 Co., 187 N. Y. 572, 80 N. E. 1122; and is 
 bound to see that its fixtures are securely 
 attached; Fish v. Electric Light & Power 
 Co., 189 N. Y. 336, 82 N. E. 150, 13 L. It. A. 
 (N. S.) 226 ; and to keep the wires properly 
 insulated; Griffin v. Light Co., 164 Mass. 
 492, 41 N. E. 675, 32 L. R. A. 400, 49 Am. 
 St. Rep. 477. The test of the liability of a 
 company is whether injury to persons might 
 reasonably be anticipated; Guinn v. Tele- 
 phone Co., 72 N. J. L. 276, 62 Atl. 412, 3 
 L. R. A. (N. S.) 9S8, 111 Am. St. Rep. 60S. 
 Where the apparatus is installed by other 
 parties, the company has been held bound 
 to make a reasonable inspection of it be- 
 fore furnishing current; Hoboken Land & 
 Imp. Co. v. Electric Co., 71 N. J. L. 430, 
 58 Atl. 1082; but they are held not lia- 
 ble for defective apparatus where other per- 
 sons did the work of wiring; Harter v. 
 Power Co., 124 la. 500, 100 N. W. 508; Brun- 
 elle v. Light Corp., 1S8 Mass. 493, 74 N. E. 
 676; National Fire Ins. Co. v. Electric Co., 
 16 Colo. App. 86, 63 Pac. 949; Minneapolis 
 General Electric Co. v. Cronon, 166 Fed. 651, 
 92 C. C. A. 345, 20 L. R. A. (N. S.) 816. A 
 city ordinance requiring all splices or joints 
 on electric wires to be perfectly insulated 
 is a contract with every inhabitant fixing a 
 standard of duty, failure to observe which 
 will constitute negligence; Clements v. Light 
 Co., 44 La. Ann. 692, 11 South. 51, 16 L. R. 
 A. 43, 32 Am. St. Rep. 34S. 
 
 The liability extends to trespassers ; Nel- 
 son v. Lighting & Water Co., 75 Conn. 548, 
 54 Atl. 303 ; Newark Electric Light & Power 
 Co. v. Garden, 78 Fed. 74, 23 C. C. A. 649, 37 
 L. R. A. 725; Lynchburg Telephone Co. v. 
 Booker, 103 Va. 595, 50 S. E. 148; contra, 
 Augusta Ry. Co. v. Andrews, 89 Ga. 653, 16 
 8. E. 203; McCaughna v. Electric Co., 129 
 Mich. 407, 89 N. W. 73, 95 Am. St Rep. 441 ; 
 Stark v. Traction & Lighting Co., 141 Mich. 
 575, 104 N. W. 1100, 1 L. R. A. (N. S.) S22 ; 
 Cumberland Telegraph & Telephone Co. v. 
 Martin's Adm'r, 110 Ky. 554, 76 S. W. 394, 
 77 S. W. 718, 63 L. R. A. 469, 105 Am. St. 
 Rep. 229; Minneapolis General Electric Co. 
 v. Cronon, 106 Fed. 651, 92 C. C. A. 345, 20 
 L. R. A. (N. S.) 816. 
 
 Equity, at the suit of a state, will enjoin 
 an electric railway company from permitting 
 the escape of electricity into the ground, in- 
 juring municipal water pipes ; Dayton v. 
 Ry. Co., 26 Ohio Cir. Ct R. 736. One who 
 discharges electricity into the earth is lia- 
 ble for damages caused by the current just 
 as if he had discharged a stream of water. 
 Where a railway company did so under or- 
 der of the Board of Trade and used the best 
 
 known system, it was not responsible for the 
 injury; [1893] 2 Ch. 186. 
 
 Equity cannot prescribe by injunction a 
 particular system of circuit or negative re- 
 turn of the electric current to be used by 
 an electric railway company, although it is 
 shown that the system in use results in con- 
 tinuous injury to the water pipes of a water 
 company; but it will act by injunction upon 
 the continuance of the injury, leaving it t<> 
 the discretion of the company to prevent it. 
 In this case it appeared that the railway 
 company's system could not entirely prevent 
 electrolysis, but that it was suggesting other 
 means which would practically prevent seri- 
 ous injury. The court enjoined the continu- 
 ance of the injury, but left the defendant 
 free to adopt the proper system within a 
 reasonable time; Peoria Waterworks Co. v. 
 R. Co., 1S1 Fed. 990 (C. C. 111.), per San- 
 born, C. J. 
 
 See generally Causa Proxima; Joyce, Elec- 
 tric Law; Eminent Domain; Highways; 
 Impairing Obligation of Contracts; 
 Streets; Telegrapii; Telephone. 
 
 ELECTROCUTION. A method of punish- 
 ment of death inflicted by causing to pass 
 through the body of the convicted person a 
 current of electricity of sufficient force and 
 continuance to cause death. See 1 Witth. & 
 Beck. Med. Jur. 663. 
 
 It was enacted in New York in 18SS, in 
 Ohio in 1S96, and in Pennsylvania in 1913, 
 and in one or two other states. 
 
 Punishment by electrocution is not within 
 the meaning of the Constitution of the Unit- 
 ed States, which prohibits the infliction of 
 unusual and cruel punishments; and while 
 the infliction of the death penalty by a new 
 agency is unusual, the adoption of such an 
 agency which is not a certainly prolonged or 
 extreme procedure is not violative of this 
 constitutional provision; People v. Durston. 
 119 N. Y. 569, 24 N. E. 6, 7 L. R. A. 715, 16 
 Am. St. Rep. 859. 
 
 This act of New York is not repugnant to 
 the Constitution of the United States when 
 applied to a convict who committed the crime 
 after the act took effect; In re Kennnler, 
 136 U. S. 436, 10 Sup. Ct. 930, 34 L. Ed. 519. 
 See Ex parte Mirzan, 119 U. S. 5S4, 7 Sup. 
 Ct 341, 30 L. Ed. 513. 
 
 ELECTROLYSIS. See Electrical Compa- 
 nies. 
 
 ELEEMOSYNARIUS (Lat). An almoner. 
 There was formerly a lord almoner to the 
 kings of England, whose duties are describ- 
 ed in Fleta, lib. 2, cap. 23. A chief o 
 who received the eleemosynary rents and 
 gifts, and in due method distributed them to 
 pious and charitable uses. Cowell. 
 
 ELEEMOSYNARY CORPORATIONS. Such 
 private corporations as are instituted for pur- 
 poses of charity, their object being the dis- 
 tribution of the bounty of the founder of
 
 ELEEMOSYNARY CORPORATIONS 1000 
 
 ELEGIT 
 
 them to such persons as he directed. Of this 
 kind are hospitals for the relief of the im- 
 potent, indigent, sick, and deaf or dumb; 
 Ang. & A. Corp. § 39; American Asylum at 
 Hartford v. Bank, 4 Conn. 172, 10 Am. Dec. 
 112 ; McKim v. Odom, 3 Bland (Md.) 407 ; 1 
 Ld. Raym. 5; 2 Term 346. The nature of 
 eleemosynary corporations is discussed in 
 the Dartmouth College case. They are in 
 no sense ecclesiastical corporations as under- 
 stood in the classification of Blackstone. 
 Marshall, C. J., said, in distinguishing the 
 college from a public corporation employed 
 for the purposes of government, that it was 
 in fact a private eleemosynary institution en- 
 dowed with capacity to take property for 
 objects unconnected with government, whose 
 funds were bestowed by individuals on the 
 faith of the charter — none the less so be- 
 cause for public education; Dartmouth Col- 
 lege v. Woodward, 4 Wheat. 518, 630, 4 L. 
 Ed. 629. And in the same case, Story, J., 
 discussed at length the nature of these cor- 
 porations, defining them as "such as are con- 
 stituted for the perpetual distribution of the 
 free alms and bounty of the founder in such 
 manner as he has directed"; and then, after 
 pointing out the division of corporations into 
 public and private, he goes on to explain that 
 eleemosynary corporations are private corpo- 
 rations although dedicated to general char- 
 ity, and that the argument that because the 
 charity is public, the corporation is public, 
 "manifestly confounds the popular with the 
 strictly legal sense of the terms." He also 
 calls attention to the fact that "to all 
 eleemosynary corporations a visitorial pow- 
 er attaches as a necessary incident." See 
 Visitation. 
 
 In the same opinion it is said that a pri- 
 vate eleemosynary corporation, when created 
 by the charter of the crown, is subject to no 
 other control of the crown unless power be 
 reserved for that purpose, and this he char- 
 acterizes as "one of the most stubborn and 
 well-settled doctrines of the common law" ; 
 but nevertheless such corporations, like all 
 others, are subject to the general law of the 
 land. See, also, Society for Propagation of 
 Gospel v. New Haven, 8 Wheat. (U. S.) 464, 
 5 L. Ed. 662 ; 1 Bla. Com. 471. 
 
 "In the English law corporations are divided into 
 ecclesiastical and lay; and lay corportions are 
 again divided into eleemosynary and civil. It is 
 doubtful how far clear conceptions of the law are 
 promoted by keeping in mind these divisions. They 
 seem, for us at least, to have an historical, rather 
 than a practical, value. In a country where the 
 church is totally disassociated from the state, there 
 is little room for a division of corporations into 
 ecclesiastical and lay ; and while charitable corpo- 
 rations have many features which distinguish them 
 from other private corporations, as will hereafter 
 appear, it is very seldom that the word 'civil' is 
 used in our American books of reports in order to 
 distinguish corporations other than charitable." 
 
 ELEGIT (Lat eligere, to choose). A writ 
 of execution directed to the sheriff, com- 
 manding him to make delivery of a moiety of 
 
 the party's land and all his goods, beasts of 
 the plough only excepted. 
 
 The sheriff, on the receipt of the writ, 
 holds an inquest to ascertain the value of 
 the lands and goods he has seized, and then 
 they are delivered to the plaintiff, who re- 
 tains them until the whole debt and damages 
 have been paid and satisfied. During that 
 term he is called tenant by eligit; Co. Litt. 
 2S9. See Pow. Mort. ; Wats. Sheriff 206; 
 
 1 C. B. N. S. 568 ; 3 Holdsw. Hist. E. L. 113 ; 
 
 2 Poll. & Maitl. 122. 
 
 The name was given because the plaintiff 
 has his choice to accept either this writ or 
 a ft. fa. 
 
 By statute, in England, the sheriff is to 
 deliver the whole estate instead of the half ; 
 see 3 Bla. Com. 418 ; and by act of 1883 it no 
 longer extends to goods. The writ is still in 
 use in the United States, to some extent, and 
 with somewhat different modifications in the 
 various states adopting it ; 4 Kent 431, 436 ; 
 McCance v. Taylor, 10 Gratt (Va.) 5S0; Mor- 
 ris v. Ellis, 3 Ala. 560. 
 
 ELEMENTS. A term popularly applied to 
 fire, air, earth and water, anciently suppos- 
 ed to be the four simple bodies of which the 
 world was composed. Encyc. Diet. Often ap- 
 plied in a particular sense to wind and wa- 
 ter, as "the fury of the elements." Cent. 
 Diet. It has been said that "damages by the 
 elements," and "damages by the act of God," 
 are convertible expressions ; Polack v. Pioche, 
 35 Cal. 416, 95 Am. Dec. 115. 
 
 ELEVATED RAILWAYS. See Railroads. 
 
 ELEVATOR. A building containing one 
 or more mechanical elevators, especially a 
 warehouse for the storage of grain ; a hoist- 
 ing apparatus ; a lift ; a car or cage for lift- 
 ing and lowering passengers or freight in a 
 hoistway. Cent. Diet. 
 
 A landlord who runs an elevator for the 
 use of his tenants and their visitors thereby 
 becomes a common carrier ; Goodsell v. Tay- 
 lor, 41 Minn. 207, 42 N. W. 873, 4 L. R. A. 
 073, 16 Am. St. Rep. 700; Morgan v. Saks, 
 143 Ala. 139, 38 South. 848; Mitchell v. 
 Marker, 62 Fed. 139, 10 C. C. A. 306, 25 L. 
 R. A. 33 ; Edwards v. Burke, 36 Wash. 107, 
 78 Pac. 610; Lee v. Knapp & Co., 155 Mo. 
 610, 56 S. W. 458; Fox v. Philadelphia, 208 
 Pa. 127, 57 Atl. 356, 65 L. R. A. 214; Ober- 
 felder v. Doran, 26 Neb. 118, 41 N. W. 1094, 
 18 Am. St. Rep. 771; Walsh v. Cullen, 235 
 111. 91, 85 N. E. 223, 18 L. R. A. (N. S.) 911. 
 He is charged with the highest degree of 
 care which human foresight can suggest, 
 both as to the machinery and the conduct of 
 his servants; Marker v. Mitchell, 54 Fed. 
 637; Treadwell v. Whittier, 80 Cal. 595, 22 
 Pac. 266, 5 L R. A. 498, 13 Am. St. Rep. 175. 
 That such a carrier of passengers is not an 
 insurer, but is required to exercise the high- 
 est degree of care; Mitchell v. Marker, 62 
 Fed. 139, 10 C. C. A. 306, 25 L. R. A. 33;
 
 ELEVATOR 
 
 1001 
 
 ELEVATOR 
 
 Tousey v. Roberts, 114 N. Y. 312, 21 N. E. 
 399, 11 Am. St Hep. 655; Edwards v. Burke, 
 36 Wash. 107, 7S Pac. 610. Other cases do 
 not subject him to the same responsibility 
 as common carriers; Edwards v. Building 
 Co., 27 II. I. 248, 61 Atl. 046, 2 L. R. A. (N. 
 S.) 744, 114 Am. St. Rep. 37, 8 Ann. Cas. 
 974; Griffen v. Man i.e. 166 N. Y. 197, 59 N. 
 E. 925, 52 L. R. A. 922, 82 Am. St. Rep. 630; 
 Seaver v. Bradley, 179 Mass. 329, 60 N. B. 
 795, 88 Am. St. Rep. 384. 
 
 Where the owner is in the habit of permit- 
 ting a person to accompany freight ou an 
 elevator, he owes him the duty of a carrier; 
 Orcutt v. Building Co., 201 Mo. 424, 99 S. W. 
 1062, 8 L. R. A. (X. S.) 929. Where a mu- 
 nicipal ordinance imposed upon owners of 
 elevators the duty to employ competent per- 
 sons, the owner of an apartment house was 
 held liable for injuries to the child of bis 
 tenant, who, finding the elevator unguarded, 
 attempted to run it; Shellaberger v. Fisher, 
 143 Fed. 937, 75 C. C. A. 9, 5 L. R. A. (X. 
 S.) 250. A hotel-keeper owes the same duty 
 to persons visiting his guests, and, in gen- 
 eral, to all persons lawfully in the hotel and 
 in the elevator, as to his guests; McCracken 
 v. Meyers, 75 N. J. L. 935, 68 Atl. 805, 16 L. 
 R. A. (X. S.) 290. citing Siggins v. McGill, 
 72 N. J. L. 263, 62 Atl. 411, 3 L. R. A. (N. 
 S.) 316, 111 Am. St. Rep. 666. 
 
 The right of any person to ride on an ele- 
 vator is held to be based on the implied in- 
 vitation which the owner is deemed to have 
 extended to all who have business on his 
 premises ; such owner must see that the 
 premises are in a reasonable, safe, condition ; 
 the measure of duty is reasonable care and 
 prudence; Griffen v. Manice, 166 N. Y. 197, 
 59 X. E. 925, 52 L. R. A. 922, 82 Am. St. Rep. 
 630; Burgess v. Stowe, 134 Mich. 204, 96 N. 
 W. 29. 
 
 A hotel-keeper is not bound to the same 
 degree of care with respect to his employes 
 as to his guests in operating his elevator. 
 His duty as to them is ascertained by the 
 general rules governing the relation of mas- 
 ter and servant. In Illinois, where the pro- 
 prietor of an elevator is held to be a carrier 
 of passengers; Hodges v. Percival, 132 111. 
 53, 23 N. E. 423; Springer v. Ford, 1S9 111. 
 430, 59 N. E. 953, 52 L. R. A. 930, 82 Am. 
 St. Rep. 464; Beidler v. Branshaw, 200 111. 
 425, 65 N. E. 1086; Masonic Fraternity Tem- 
 ple Ass'n v. Collins, 210 111. 4S2, 71 X. E. 
 396; yet where a waitress was injured on a 
 hotel elevator, the proprietor was held not 
 to owe her the duty of a common carrier ; 
 Walsh v. Cullen, 235 111. 91, 85 N. E. 223, 18 
 L. R. A. (X. S.) 911. To the same effect, 
 Sievers v. Lumber Co., 151 Ind. 642, 50 X. E. 
 877, 52 X. E. 399; McDonough v. Lanpher, 
 55 Minn. 501, 57 X. W. 152, 43 Am. St. Rep. 
 541. 
 
 The owner of an office building has been 
 held not to owe the duty of keeping closed 
 
 the doors to the elevator wells in respect to 
 one who enters the building seeking Informa- 
 tion about one not a tenant of or employed 
 in it, since he is a mere licensee; Stanwood 
 v. Clancey, 106 Me. 72, 75 Ail. 293; Plummer 
 v. Dill, 156 Mass. 426, ::i X. E. 128. 32 Am. 
 St. Rep. 463; as such he goes into the build- 
 ing at his own risk and is bound to take the 
 premises as he finds them; Beehler v. Dan- 
 iels, 18 E. I. 563, 29 Atl. •',, 27 I.. R. A. 512, 
 49 Am. St. Rep. 790 ; Faurot v. Grocery Co., 
 21 Okl. 104, 95 Pac. 403, 17 L. I:. 
 136; Faris v. Hoberg, 134 Ind. 269, 33 X. E. 
 1028, 39 Am. St Rep. 261. This rule was 
 applied where a policeman, in the exercise 
 of his duty to protect the property of an ex- 
 press company from strikers, was killed 
 from falling down an elevator shaft; Casey 
 v. Adams, 234 111. 350, 84 X. E. 933, 17 L. R. 
 A. (X. S.) 776, 123 Am. St. Rep. 105; and 
 also where a fireman entered a building for 
 the purpose of protecting property therein 
 from fire and was injured while using an 
 elevator in such building ; Gibson v. Leonard, 
 143 111. 182, 32 X. E. 182, 17 L. R. A. 588. 
 36 Am. St. Rep. 376 ; and where the wife of 
 the janitor of a building used the elevator 
 for the purpose of showing a tenant therein 
 the roof ; Billows v. Moors, 162 Mass. 42, 37 
 X. E. 750. 
 
 As to licensees by invitation or affirmative 
 consent, it is held that the owner of an ele- 
 vator owes the duty of exercising ordinary 
 care; Muench v. Heinemann, 119 Wis. 441, 
 96 X. W. 800. Thus a child, who with the 
 knowledge or implied consent of an elevator 
 operator, rides on the top of the car, is held 
 not a trespasser; Davis' Adm'r v. Trust Co., 
 127 Ky. 800, 106 S. W. 843, 15 L. R. A. (X. 
 S.) 402. As to licensees by permission or on 
 mere sufferance, the owner owes no duty ex- 
 cept to refrain from acts of actual negli- 
 gence; Muench v. Ileinemann, 119 Wis. -Ill, 
 96 X. W. 800; Faris v. Hoberg, 134 Ind. 269, 
 33 X. E. 1028, 39 Am. St. Rep. 261; Amerine 
 v. Porteous, 105 Mich. 347. 63 X. W. 300; 
 McCarvell v. Sawyer, 173 Mass. 5 in. 54 \. 
 E. 259, 73 Am. St. Rep. 31S ; McManus v. 
 Thing, 194 Mass. 362. 80 X. E. 4S7 ; Leavitt 
 v. Shoe Co., 69 X. II. 597, 45 Atl. 558. Where 
 one has been forbidden to use the* elevator 
 and sustains an injury, he cannot recover; 
 Ferguson v. Truax, 132 Wis. -ITS, 110 X. W. 
 395, 111 X. W. 657, 112 X. W. 513, 14 L. R. A. 
 (X. S.) 350, 13 Ann. Cas. 1092. 
 
 An elevator should have constant care and 
 inspection; Bier v. Mfg. Co., 130 Pa. 440. 18 
 Atl. 637; McGuigan v. Beatty. 1S6 Pa. 329, 
 40 Atl. 490 ; that the machinery was oiled 
 once a week and the elevator looked at by a 
 fellow servant does not fulfil the require- 
 ment that it should be inspected regularly ; 
 Swenson v. R. Co., 78 App. Div. 379, 80 X. 
 Y. Supp. 2S1 ; or where it has been inspected 
 two weeks before an accident, and a defect 
 overlooked; Corn Products Refining Co. v.
 
 ELEVATOR 
 
 1002 
 
 ELIGIBILITY 
 
 King, 16S Fed. 892, 94 C. C. A. 304; or where 
 an accident was caused by the breaking of a 
 shaft, the defective condition of which might 
 bare been discovered by inspection; Rein- 
 bardt v. Lard Co., 74 N. J. L. 9, G4 Atl. 990. 
 But one is not liable for an accident to an 
 employe if he regularly employs a competent 
 firm to inspect the elevator; Young v. Stable 
 Co., 193 N. Y. 188, 86 N. E. 15, 21 L. R. A. 
 (N. S.) 592, 127 Am. St. Rep. 939. In case 
 of a casualty, it is not enough to show that 
 the elevator is one of a kind in ordinary use ; 
 McCormick Harvesting Machine Co. v. Bur- 
 andt, 136 111. 170, 26 N. E. 588. But the ab- 
 sence of safety appliances is said not to be 
 conclusive evidence of negligence; Shattuck 
 v. Rand, 142 Mass. 83, 7 N. E. 43. An eleva- 
 tor is not supposed to be a place of danger, 
 to be approached with great caution ; Zieman 
 v. Mfg. Co., 90 Wis. 497, 63 N. W. 1021 ; but 
 when the door is opened a passenger may 
 enter it without stopping to make a special 
 examination ; Tousey v. Roberts, 114 N. Y. 
 312, 21 N. E. 399, 11 Am. St. Rep. 655. 
 
 See 9 L. R. A. 640, note ; Mitchell v. Mark- 
 er, 62 Fed. 139, 10 C. C. A. 306, 25 L. R. A. 
 33 ; Webb, Elevators. 
 
 The business of handling grain in eleva- 
 tors is of such a nature as to subject it to 
 regulations which would be entirely unjusti- 
 fiable if applied to a purely private business. 
 Because the business is of a quasi-public na- 
 ture, even the owner of a country elevator, 
 who buys for himself alone and is his own 
 grader and weighmaster, may be required 
 to secure a license from the state ; State v. 
 W. W. Cargill Co., 77 Minn. 223, 79 N. W. 
 962; W. W. Cargill Co. v. Minnesota, 180 U. 
 S. 402, 21 Sup. Ct. 423, 45 L. Ed. 619. For 
 the same reason the legislature may make 
 a weighmaster's certificate prima facie evi- 
 dence of what is stated therein ; Vega Steam- 
 ship Co. v. Elevator Co., 75 Minn. 308, 77 N. 
 W. 973, 43 L. R. A. 843, 74 Am. St. Rep. 484. 
 
 As to grain in a grain elevator, see Confu- 
 sion op Goods. 
 
 ELIGIBILITY. The constitution of the 
 United States provides tbat no person hold- 
 ing any office under the United States shall 
 be a member of either house. The accept- 
 ance by a member of congress of a commis- 
 sion as a volunteer in the army vacates his 
 seat ; CI. & H. 122, 395, 637. But by a deci- 
 sion of the second comptroller of the treas- 
 ury, of Feb. 24, 1894, it was held that tbere 
 was no incompatibility of office between that 
 of a member of the house of representatives 
 and the military office held by an officer of 
 the United States army on the retired list, 
 and that he was entitled to pay for both 
 offices. A centennial commissioner holds an 
 office of trust or profit under the United 
 States, and is thereby ineligible as a presi- 
 dential elector; In re Corliss, 11 R. I. 638, 
 23 Am. Rep. 538. A state cannot by statute 
 provide that certain state officers are ineligi- 
 
 ble to a federal office; Turney v. Marshall, 
 1 Bartl. 167; Trumbull's Election, 1 Bartl. 
 619. 
 
 Duelling has been made in some states a 
 disqualification for office ; see Duelling. In 
 Kentucky, it was field that the doing of any 
 of the prohibited acts was a disqualification 
 for office without a previous conviction ; 
 Cochrane v. Jones, 14 Am. L. Reg. N. S. 22 ; 
 but this opinion has been questioned in a 
 note to that case. See McCrary, Elect. 189. 
 
 An alien cannot, even in the absence of 
 any provision forbidding it, hold an office; 
 State v. Van Beek, 87 la. 569, 54 N. W. 525, 
 19 L. R. A. 622, 43 Am. St. Rep. 397. See 
 Cooley, Const. Lim. 748, n. ; but he may be 
 elected to an office ; State v. Murray, 28 Wis. 
 96, 9 Am. Rep. 489 ; State v. Trumpf, 50 Wis. 
 103, 5 N. W. 876, 6 N. W. 512. And mem- 
 bers elect of congress, who were ineligible 
 on account of participation in the rebellion, 
 have been admitted to a seat, their disquali- 
 fication having been subsequently removed; 
 McCrary, Elect 193. 
 
 The word eligibility, used in connection 
 with an office, where there are no explana- 
 tory words indicating that it is used with 
 reference to the time of election, refers to 
 the qualification to hold the office rather 
 than to be elected ; Bradfield v. Avery, 16 
 Idaho 769, 102 Pac. 687, 23 L. R. A. (N. S.) 
 1228; Hoy v. State, 168 Ind. 506, 81 N. E. 
 509, 11 Ann. Cas. 944. 
 
 As to the effect of the ineligibility of the 
 candidate having the highest number of 
 votes, see Election. 
 
 ELIGIBLE. This term relates to the ca- 
 pacity of holding as well as that of being 
 elected to an office ; Carson v. McPhetridge, 
 15 Ind. 327. 'See Searcy v. Grow, 15 Cal. 
 117; State v. Clarke, 3 Nev. 566; State v. 
 Smith, 14 Wis. 497. 
 
 ELISORS. Two persons appointed by the 
 court to return a jury when the sheriff and 
 coroner have been challenged as incompetent, 
 either because they are parties to the suit, 
 or are related to either party. 3 Bla. Com. 
 354; Allen v. Com., 12 S. W. 582, 11 Ky. L. 
 Rep. 555; or because they are partial; 5 
 Bac. Abr. 318; 3 East 141; Fortesc. de Laudi- 
 bus LL. 53; Ale. & Nap. 113; or interested; 
 Tidd, Prac. 723, 780; People v. Fellows, 122 
 Cal. 233, 54 Pac. 830; State v. Hultz, 106 
 Mo. 41, 16 S. W. 940; Harriman v. State, 2 
 G. Greene (la.) 270. They -return the writ 
 of venire directed to tbem with a panel of 
 the jurors' names, and their return is final 
 and no challenge is allowed to the array. 
 But a party may have his challenge to the 
 poll ; Co. Litt. 158 a. 
 
 Elisors may be appointed to serve process 
 other than that of returning a jury; Brunei- 
 v. Superior Court, 92 Cal. 239, 28 Pac. 341. 
 An attachment may be directed to elisors 
 against the coroners for not attaching a 
 disobedient sheriff who has not brought the
 
 ELISORS 
 
 1003 
 
 ELISORS 
 
 defendant into court; 2 Wm. Bla. Oil; 2 id. 
 1218; Tidd, Prac. 314; or for not returning 
 an execution; People v. Palmer, 1 Cow. (N. 
 Y.) 32; but such appointment will be refus- 
 ed where it is a matter of mere service of 
 process ; 10 Moore 266. 
 
 Authority to appoint elisors need not be 
 given by statute; Wilson v. Roach, 4 Cal. 
 302; though the legislature may authorize 
 the governor to appoint officers with the 
 powers of sheriff to enforce liquor laws; 
 Gilmore v. Penobscot County, 107 Me. 345, 
 78 Atl. 454. 
 
 Elisors were named by the prothonotary 
 and appointed by the court; Barnes 465; 
 named by plaintiff and approved by prothon- 
 otary; 2 Wm. Bla. 911; or named by the 
 master in the King's Bench, or prothonotary 
 in the Common Pleas; Tidd, Prac. 151. 
 
 A sheriff is incompetent if he is part of a 
 defendant corporation, in which case elisors 
 will he appointed ; 1 Ir. L. Rec. O. S. 281 ; 
 but where the sheriff and coroner were mem- 
 bers of a corporation defending another sim- 
 ilar suit against the same plaintiff, elisors 
 were not appointed ; Jackson v. Rathbone, 
 3 Cow. (N. Y.) 296. 
 
 Elisors are usually two clerks of the court 
 or residents of the county, and are sworn ; 
 3 Bla. Com. 354; Fortesc. de Laud. LL 53; 
 but a person residing in a county other than 
 that in which the defendant resides may he 
 appointed under peculiar circumstances ; 
 Anonymous, 23 Wend. (N. Y.) 102; so may 
 one who has served under the sheriff as 
 bailiff to the petit jury in other causes; 
 State v. Bodly, 7 Blackf. (Ind.) 355; and 
 only one need be appointed to serve a sum- 
 mons; Reed v. Moffatt, 62 111. 300; and he 
 need not be sworn; id. 
 
 Notice of the appointment of elisors must 
 be given to the opposite party ; 1 Stra. 235. 
 
 The appointment by a judge having com- 
 petent jurisdiction is presumed to be prop- 
 er; Turner v. Billagram, 2 Cal. 520; or by a 
 clerk to serve a writ of replevin ; Beach v. 
 Schmultz, 20 111. 1S5. If it is irregular, a 
 motion to quash the levy should be made in 
 the court to which the writ is returnable; 
 Turner v. Billagram, 2 Cal. 520. It rests in 
 the discretion of the trial judge and will not 
 be disturbed unless arbitrary and unjust; 
 State v. Hultz, 100 Mo. 41, 10 S. W. 940. 
 A venire for a grand jury was directed to 
 elisors, the sheriff being disqualified, and 
 not to the coroner; held legal; State v. Zel- 
 ler, 83 N. J. L. 000, 85 Atl. 237. 
 
 Absence of the coroner from the parish 
 when the sheriff is a party to the suit will 
 not warrant the appointment of an elisor; 
 Whitehead v. Brigham, 1 La. Ann. 317. A 
 new sheriff will not be awarded process, 
 though he be impartial, if it has already 
 been given to elisors; Co. Litt. 158a; contra, 
 Anonymous, 23 Wend. (N. Y.) 102. 
 An elisor may be appointed to take charge 
 
 of a jury retiring to deliberate upon a ver- 
 dict, when both sheriff and coroner are dis- 
 qualified or unable to act ; People v. Fellows, 
 
 v. Ebanks, 
 117 Cal. 652, 49 Pac. 1049, 40 L. EL A. 269. 
 By act of parliai. ,e free ac- 
 
 cess to jurors' books in Ireland; Huband, 
 Grand Jury in Ireland 
 
 I'mfreville, Lex < '• 
 Huband, Grand Jury in Irel. 
 ward, Coroners in Pennsylvania 14". 
 
 EL KINS* ACT. See Rates. 
 
 ELL. A measure of length. 
 In old English the word signifies arm, which sense 
 it still retains in the word elbow. Nature has no 
 standard of measure. The cubit, the ell, the span, 
 palm, hand, finger (being taken from the individual 
 who uses them), are variable measures. So of the 
 foot, pace, mile, or millc passuum. See Report on 
 Weights and Measures, by the secretary of state of 
 the United States, Feb. 22, 1821. 
 
 ELLEN E0 ROUGH'S ACT. An English 
 statute (43 Geo. III. c. 58) punishing offens- 
 es against the person. See Anouiiox. 
 
 EL0GIUM (Lat). In Civil Law. A will 
 or testament. 
 
 ELOIGN E (Fr. Eloigner, to remove to a 
 distance). In Practice. A return to a writ 
 of replevin, when the chattels have been re- 
 moved out of the way of the sheriff. 
 
 E LONG AT A. The return made by the 
 sheriff to a writ of replevin, when the _ 
 have been removed to places unknown to 
 him. See, for the form of this return, Wats. 
 Sheriff, Appx. c. 18, s. 3, p. 454 ; 3 Bla. Com. 
 148. 
 
 On this return the plaintiff is entitled to 
 a capias in withernam. See Withernam; 
 Wats. Sheriff MOO, 301. The word 6loign6 is 
 sometimes used as synonymous with elon- 
 gat a. 
 
 EL0NGATUS. The sheriffs return to a 
 writ de homine replegiando, q. v. 
 
 ELOPEMENT. The departure of a mar- 
 ried woman from her husband and dwelling 
 with an adulterer. Cowell ; Tomlin. 
 
 To constitute elopement the wife must not 
 only leave the husband, hut go beyond his 
 actual control. For if she abandon the bus 
 band, and go and live in adultery in a house 
 belonging to him, it is said not to be an 
 elopement: Cogswell v. Tibbetts, 3 N. II. 42; 
 1 Rolle, Ahr. ('.SO. 
 
 When a wife elopes the husband Is no 
 longer liable for her support, and is not 
 bound to pay debts of her contracting, when 
 the separation is notorious; and whoever 
 gives her credit does so, under these circum- 
 stances, at his peril: Hunter v. Bouc 
 Pick. (Mass.) 2N> ; 6 Term 003; McCntchen 
 v. McGahay, 11 Johns. (N. Y.) 2S1, 6 Am. 
 Dec. 37.">; Hull. N. P. 135. 
 
 It has been said that the word has no legal 
 sense; 2 W. Bla. 10S0; but It is frequently
 
 ELOPEMENT 
 
 1004 EMANCIPATION PROCLAMATION 
 
 used, as is here shown, with a precisely de- 
 fined meaning. An action may be maintain- 
 ed by the husband, against a third person, 
 for enticing away his wife, where nothing 
 in the nature of criminal conversation is al- 
 leged. See Schoul. Hus. & W. 64; Aliena- 
 tion of Affection ; Entice. 
 
 ELSEWHERE. In another place. 
 
 Where one devises all his land in A, B, and C, 
 three distinct towns, and elsewhere, and had lands 
 of much greater value than those in A, B, and C, in 
 another county, the lands in the other county were 
 decreed to pass by the word "elsewhere"; and by 
 Lord Chancellor King, assisted by Raymond, C. J., 
 and other judges, the word "elsewhere" was ad- 
 judged to be the same as if the testator had said he 
 devised all his lands in the three towns particularly 
 mentioned, or in any other place whatever. 3 P. 
 Wms. 56. See, also, Chanc. Prec. 202; 1 Vern. 4, n. ; 
 Cowp. 360, 80S ; 5 Bro. P. C. 496 ; 1 East 456. 
 
 As to the effect of the word "elsewhere" in the 
 case of lands not purchased at the time of making 
 the will, see 3 Atk. 254; 2 Ventr. 351. The words 
 "or elsewhere" have been held not to include lands 
 in another state ; Atkinson v. Schilman, 60 Fla. 39, 
 53 South. 844, 56 South. 274. As to the construction 
 of the words "or elsewhere" in shipping articles, 
 see Brown v. Jones, 2 Gall. 477, Fed. Cas. No. 2,017. 
 
 ELUVIONES. Spring-tides. 
 
 EMANCIPATION. An act by which a 
 person who was once in the power or under 
 the control of another is rendered free. 
 
 This is of importance mainly in relation 
 to the emancipation of minors from the pa- 
 rental control. See 3 Term 355; 8 id. 479; 
 Varney v. Young, 11 Vt. 258; Tillotson v. 
 McCriHis, id. 477; Haugh, Ketcham & Co. 
 Iron Works v. Duncan, 2 Ind. App. 264, 28 
 N. E. 334; Trapnell v. Conklyn, 37 W. Va. 
 242, 16 S. E. 570, 38 Am. St. Rep. 30. See 
 Cooper, Justin. 441, 480; Cowperthwaite v. 
 Jones, 2 Dall. (TJ. S.) 57, 1 L. Ed. 287; Fer- 
 riere, Diet, do Jurisp. Emancipation; Man- 
 umission. 
 
 An infant husband is entitled to his own 
 wages, so far as necessary for the support 
 of himself and family, even though he mar- 
 ried without his father's consent; Com. v. 
 Graham, 157 Mass. 73, 31 N. E. 708, 16 L. R. 
 A. 578, 34 Am. St. Rep. 255. Where children 
 contract for, collect, and use their own earn- 
 ings, emancipation is to be inferred ; Ger- 
 inger v. Heinlein, 29 Wkly. Law Bui. 339; 
 and so when they become of age, no other 
 facts being shown ; Baldwin v. Worcester, 66 
 Vt. 54, 28 Atl. 633. 
 
 The desertion of children by their father 
 emancipates them ; Thompson v. Ry. Co., 104 
 Fed. 845, where, in an action by the father 
 as next of kin for the death of the child, it 
 was held that there could be no recovery as 
 by reason of the emancipation the father 
 had no right to the earnings. See also for 
 other authorities note in Wilson v. McMil- 
 lan, 62 Ga. 16, 35 Am. Rep. 117 ; Rodg. Dom. 
 Rel. § 467. This presumption of emancipa- 
 tion from desertion has been termed "the 
 presumption of necessity." Schoul. Dom. 
 Rel. § 267. 
 
 EMANCIPATION PROCLAMATION. 
 
 Bondage. 
 
 See 
 
 EMBARGO. A proclamation or order of 
 state, usually issued in time of war or threat- 
 ened hostilities, prohibiting the departure of 
 ships or goods from some or all the ports of 
 such state, until further order. The William 
 King, 2 Wheat. (U. S.) 148, 4 L. Ed. 206. 
 
 A civil embargo is the act of a state de- 
 taining the ships of its own citizens in port, 
 which amounts to an interdiction of com- 
 merce, accompanied, as it usually is, by a 
 closing of its' ports to foreign vessels. A 
 hostile embargo is a detention, as before 
 mentioned, of foreign vessels and property 
 which may be in the ports of the wronged 
 state. The detention is by way of reprisal 
 (q. v.) and is thus distinguished from a de- 
 tention of foreign vessels upon other grounds. 
 If hostile embargo is followed by war, the 
 vessels detained are confiscated. The term 
 embargo is sometimes applied to the deten- 
 tion of foreign merchant vessels after the 
 outbreak of war. It had been customary 
 for belligerents to allow enemy vessels in 
 their ports at the outbreak of hostilities to 
 depart freely, and this custom finds a limit- 
 ed expression in the Convention Relative to 
 the Status of Enemy Merchant Ships at the 
 Outbreak of Hostilities, adopted at the 
 Hague Convention of 1907, which provides 
 that it is desirable that such vessels be al- 
 lowed to depart freely. 
 
 The detention of ships by an embargo is 
 such an injury to the owner as to entitle 
 him to recover on a policy of insurance 
 against "arrests or detainments." And 
 whether the embargo be legally or illegally 
 laid, the injury to the owner is the same, 
 and the insurer is equally liable for the loss 
 occasioned by it. Marsh. Ins. b. 1, c. 12, s. 
 5 ; 1 Kent 60 ; 1 Bell, Diet. 517. 
 
 An embargo detaining a vessel at the port 
 of departure, or in the course of the voyage, 
 does not of itself work a dissolution of a 
 charter-party, or of the contract with the 
 seamen. It is only a temporary restraint 
 imposed by authority for legitimate politi- 
 cal purposes, which suspends for a time the 
 performance of such contracts, and leaves 
 the rights of parties untouched ; 1 Bell, Diet 
 517. 
 
 EMBASSAGE or EMBASSY. The message 
 or commission given by a sovereign or state 
 to a minister called an "ambassador," em- 
 powered to treat or communicate with an- 
 other sovereign or state; also the establish- 
 ment of an ambassador. Black, L. Diet 
 
 EMBEZZLEMENT. The fraudulent ap- 
 propriation to one's ow«n use of the money 
 or goods entrusted to one's care by another. 
 Fagnan v. Knox, 40 N. Y. Super. Ct. 41. 
 
 The fraudulent appropriation of property 
 by a person to whom it has been intrusted 
 or to whose hands it has lawfully come; it
 
 EMBEZZLEMENT 
 
 1005 
 
 EMBEZZLEMENT 
 
 is distinguished from larceny in the fact that 
 the original taking of the property was law- 
 ful or with the consent of the owner, while 
 in larceny the felonious intent must have 
 existed at the time of the taking. Moore v. 
 U. S., 160 U. S. 268, 10 Sup. Ct. 294, 40 L. Ed. 
 422. See Grin v. Shine, 187 U. S. 181, 23 
 Sup. Ct. 98, 47 L. Ed. 130 ; People v. Tomlin- 
 son, 102 Cal. 19, 3G Pac. 506. 
 
 The principles of the common law not be- 
 ing found adequate to protect general owners 
 against the fraudulent conversion of proper- 
 ty by persons standing in certain fiduciary 
 relations to those who were the subject of 
 their peculations, certain statutes have been 
 enacted, as well in England as in this coun- 
 try, creating new criminal offences and an- 
 nexing to them their proper punishments. 
 The general object of these statutes doubt- 
 less was to define and embrace, as criminal 
 offences punishable by law, certain cases 
 where, although the moral guilt was quite as 
 great as in larceny, yet the technical objec- 
 tion arising from the fact of a possession 
 lawfully acquired by the party screened him 
 from punishment. Com. v. Stearns, 2 Mete. 
 (Mass. i 345; Com. v. Simpson, 9 Mete. 
 (Mass.) 142. See State v. Wolff, 34 La. 
 Ann. 1153. 
 
 In order to constitute embezzlement, it 
 must distinctly appear that the party acted 
 with felonious intent, and made an inten- 
 tionally wrong disposal, indicating a design 
 to cheat and deceive the owner. A mere 
 failure to pay over money intrusted to such 
 party as agent for investment is not suffi- 
 cient, if this intent is not plainly apparent; 
 People v. Hurst, 62 Mich. 276, 28 N. W. 838. 
 The money appropriated need not have been 
 intrusted to the accused by the owner; it is 
 sufficient if it were intrusted to the employ- 
 er of the accused and appropriated by the 
 latter; Com. v. Clifford, 06 Ky. 4, 27 S. W. 
 811 ; and that the money was taken without 
 any attempt at concealment is no defence to 
 the charge of embezzlement: People v. Con- 
 nelly, 4 Cal. Unrep. Cas. 858, 38 Pac. 42. 
 There must be a relation of special trust in 
 regard to the article appropriated, and it must 
 be by virtue of such trust that the servant 
 has access to, or control or possession of, it ; 
 Cftlip v. State. 153 Ind. 584, 55 N. E. 739. 74 
 Am. St. Pep. 322; followed in State v. Win- 
 standley, !•"> Ind. 290, 58 N. E. 71. Wheth- 
 er the lack of authority to receive the money 
 in the first instance will necessarily defeat 
 a prosecution for embezzlement is a subject 
 much discussed. The better view seems to 
 be that if, by virtue of his employment, the 
 money came into his possession, its embez- 
 zlement is within the meaning of the stat- 
 ute; Ker v. State, 110 111. 029. 51 Am. Rep. 
 706; Smith v. State, 53 Tex. Cr. R. 117, 109 
 S. W. 118, 17 L. R. A. (N. S.) 531, 15 Ann. 
 Cas. 435; McAleer v. State, 4G Neb. 116, 64 
 N. W. 358; State v. Costin, 89 N. C. 511; 
 State v. Jennings, 9S Mo. 493, 11 S. W. 980 ; 
 
 but some cases hold that, if there was no au- 
 thority to receive the money, its conversion 
 will not constitute embezzlement; Brady v. 
 State, 21 Tex. App. 659, 1 S. W. 162; State v. 
 Johnson, 49 la. 141. 
 
 Embezzlement being a statutory offence, 
 reference must be had to the statutes of the 
 jurisdiction for the classes of persons and 
 property affected by them. It has been held 
 that there may be embezzlement of bank 
 bills; Com. v. King, 9 Cush. (Ma 
 municipal bonds; Bork v. People, 91 N. V. 
 5 ; State v. White, 66 Wis. 343, 2* N. W 
 grain; State v. Stoller, 38 la. 321; an ani- 
 mal; Washington v. State, 72 Ala. 272; com- 
 mercial securities ; State v. Orwig, 24 la. 
 102; [1891] 1 Q. B. 112; and of a mortgage; 
 Com. v. Concannon, 5 Allen (Mass.) 
 and by public officers, placed in a fiduciary 
 relation as such; Com. v. Tuckerman, 10 
 Gray (Mass.) 173; People v. McKinney, 10 
 Mich. 54. See Ex parte Hedley. 31 Cal 108 ; 
 People v. Dalton, 15 Wend. (N. Y.) 581 . 
 Com. v. Morrisey, 86 Pa. 410: State v. Munch. 
 22 Minn. 07: Lewis v. Kendall, 6 How. Pr. 
 (X. Y.) 59; State v. King. 81 la. 587. 47 N. 
 W. 775; State v. Noland, 111 Mo. 473. 19 S. 
 W. 715. Where one withdraws from the 
 money drawer of a cash register money that 
 he had deposited a moment before without 
 registering, he is guilty of embezzlement ; 
 Com. v. Ryan, 155 Mass. 523. 36 X. B. 364, 
 15 L. R. A. 317, 31 Am. St Rep. 560. Where 
 an attorney collects money for his client, he 
 acts as agent and attorney, and in either 
 case, if he appropriate the money collected 
 to his own use with the intention of depriv- 
 ing the owner of the same, he is guilty of 
 embezzlement; People v. Converse, 74 Mich. 
 478, 42 N. W. 70, 16 Am. St. Rep. 648. In 
 a prosecution for the embezzlement of mon- 
 ey held by defendant as bailee, it is imma- 
 terial that it was deposited in a bank for a 
 time, so that the money actually converted 
 was not the identical bills delivered to the 
 bailee; Com. v. Mead, 100 Mass. 319, 35 N. 
 E. 112.-,. 
 
 A taking is requisite to constitute a lar 
 ceny, and embezzlement is in substance and 
 essentially a larceny, aggravated rather than 
 palliated by the violation of a trust or con- 
 tract, instead of being, like larceny, a tres- 
 pass. The administration of the common 
 law has been not a little embarrassed in dis- 
 criminating between the two offences. But 
 they are so far distinct in their character 
 that, under an indictment charging merely 
 a larceny, evidence of embezzlement is not 
 sufficient to authorize a conviction: and in 
 cases of embezzlement the proper mode is 
 to allege sufficient matter in the indictment 
 to apprise the defendant that the charge is 
 for embezzlement. And it is often no less 
 difficult to distinguish this crime from a mere 
 breach of trust. Although the statutes de- 
 clare that a party shall be deemed to have 
 committed the crime' of simple larceny, yet
 
 EMBEZZLEMENT 
 
 1006 
 
 EMBLEMENTS 
 
 It is a larceny of a peculiar character, and 
 must be set forth in its distinctive charac- 
 ter; Com. v. Wyman, 8 Mete. (Mass.) 247; 
 Com. v. Simpson, 9 Mete. (Mass.) 138; Com. 
 v. King, 9 Cush. (Mass.) 284; Kribs v. 
 People, 82 111. 425 ; State v. Newton, 26 Ohio 
 St. 265. 
 
 The word embezzle implies a fraudulent 
 intent, and the addition of the word fraudu- 
 lentVy is mere surplusage; Reeves v. State, 
 95 Ala. 31, 11 South. 158; U. S. v. Lancaster, 
 2 McLean 431, Fed. Cas. No. 15,556; State 
 v. Wolff, 34 La. Ann. 1153 ; State v. Trolson, 
 21 Nev. 419, 32 Pac. 930; State v. Combs, 
 47 Kan. 136, 27 Pac. 818. 
 
 When money is embezzled, the owner has 
 a right to settle as for an implied contract, 
 and such settlement is no bar to a criminal 
 prosecution; Fagnan v. Knox, 66 N. Y. 526; 
 State v. Noland, 111 Mo. 473, 19 S. W. 715. 
 A partner is not guilty of embezzlement 
 in appropriating the funds of the firm to his 
 own use; Gary v. Masonic Aid Ass'n, 87 la. 
 25, 53 N. W. 1086. See Napoleon v. State, 3 
 Tex. App. 522 ; 12 Cox, C. C. 96. 
 
 When an embezzlement of a part of the 
 cargo takes place on board of a ship, either 
 from the fault, fraud, connivance, or negli- 
 gence of any of the crew, they are bound to 
 contribute to the reparation of the loss, in 
 proportion to their wages. So too the em- 
 bezzlement of property saved is a bar to 
 salvage. When the embezzlement is fixed on 
 any individual, he is solely responsible; 
 when it is made by the crew, or some of the 
 crew, but the particular offender is unknown, 
 and, from the circumstances of the case, 
 strong presumptions of guilt apply to the 
 whole crew, all must contribute. The pre- 
 sumption of innocence is always in favor of 
 tbe crew; and the guilt of the parties must 
 be established beyond all reasonable doubt 
 before they can be required to contribute; 
 Spurr v. Pearson, 1 Mas. 104, Fed. Cas. No. 
 13.268; 4 B. & P. 347; Lewis v. Davis, 3 
 Johns. (N. Y.) 17; Dane, Abr. Index; Wesk. 
 Ins. 194 ; 3 Kent 151. See Pars. Sh. & Adm. 
 A prima facie case of embezzlement is 
 made out. sufficient to warrant the surrender 
 of one in extradition proceedings, when it 
 was shown that a check was delivered to 
 him with instructions to draw the money 
 from the bank and take it to a railway sta- 
 tion to be forwarded to another city, and 
 that he subsequently converted the same to 
 his own use; Grin v. Shine, 187 U. S. 181, 
 23 Sup. Ct. 98, 47 L. Ed. 130. 
 
 Striugent provisions are made by several 
 acts of congress against the embezzlement 
 of arms, munitions, and habiliments of war, 
 property stored in public storehouses, letters, 
 precious metals, and coins from the mint. 
 
 EMBLEMENTS (Fr. emUer, or emblaver, 
 to sow with corn. The profits of the land 
 sown). The right of a tenant to take and 
 carry away, after his. tenancy has ended, 
 
 such annual products of the land as have 
 resulted from his own care and labor. The 
 term is also applied to the crops themselves. 
 Co. Litt. 55 o; 4 H. & J. 139; 3 B. & Aid. 
 118; Reiff v. Reiff, 64 Pa. 134. 
 
 It is a privilege allowed to tenants for life, 
 at will, or from year to year, because of the 
 uncertainty of their estates and to encourage 
 husbandry. If, however, the tenancy is for 
 years, and its duration depends upon no con- 
 tingency, a tenant when he sows a crop must 
 know whether his term will continue long 
 enough for him to reap it, and is not per- 
 mitted to re-enter and cut it after his term 
 has ended ; 4 Bingh. 202 ; Whitmarsh v. Cut- 
 ting, 10 Johns. (N. Y.) 361; Debow v. Col- 
 fax, 10 N. J. L. 128; Gossett v. Drydale, 4S 
 Mo. App. 430. Whenever a tenancy, other 
 than at sufferance, is from the first of un- 
 certain duration and is unexpectedly termi- 
 nated without fault of the tenant, he is en- 
 titled to emblements; Gardner v. Lanford, 
 86 Ala. 508, 5 South. 879. 
 
 This privilege extends to cases where a 
 lease has been unexpectedly terminated by 
 the act of God or the law; that is, by some 
 unforeseen event which happens without the 
 tenant's agency ; as, if a lease is made to 
 husband and wife so long as they continue 
 in that relation, and they are afterwards 
 divorced by a legal sentence, the husband 
 will be entitled to emblements; Oland's case, 
 5 Co. 116 b ; or where the lessee of a tenant 
 for life has growing crops unharvested at 
 the time of the latter's death, he is entitled 
 to them ; Bradley v. Bailey, 56 Conn. 374, 15 
 Atl. 746, 1 L. R. A. 427, 7 Am. St. Rep. 316 ; 
 Edghill v. Mankey, 79 Neb. 347, 112 N. W. 
 570, 11 L. R.A. (N. S.) 688; Hoagland v. 
 Crum, 113 111. 365, 55 Am. Rep. 424. A simi- 
 lar result will follow if the landlord, having 
 the power, terminates the tenancy by notice 
 to quit ; Cro. Eliz. 460 ; but not where, under 
 the terms of the lease, the landlord re-enters 
 and takes possession because the tenant fails 
 to pay rent; Gregg v. Boyd, 69 Hun 588, 23 
 N. Y. Supp. 918. See other cases of uncer- 
 tain duration, Stewart v. Doughty, 9 Johns. 
 (N. Y.) 112; 8 Viner, Abr. 364. But it is 
 otherwise if the tenancy is determined by an 
 act of the tenant which works a forfeiture; 
 as if, being a woman, she has a lease for 'a 
 term of years provided she remains so long 
 single, and she terminates it by marrying; 
 2 B. & Aid. 470; Lane v. King, 8 Wend. (N. 
 Y.) 584, 24 Am. Dec. 105. A landlord who 
 re-enters for a forfeiture takes the emble- 
 ments ; 7 Bingh. 154. Where a tenant wrong- 
 fully retains possession of land after his 
 term has expired, crops planted by him so 
 long as they remain unsevered, belong to the 
 landlord; Kleimann v. Geiselmann, 45 Mo. 
 App. 505. See Landlord and Tenant. 
 
 All such crops as in the ordinary course 
 of things return the labor and expense be- 
 stowed upon them within the current year
 
 EMBLEMENTS 
 
 1007 
 
 EMBLEMENTS 
 
 Decome the subject of emblements, — consist- 
 ing of grain, peas, beans, hemp, flax, and 
 annual roots, such as parsnips, carrots, tur- 
 nips, and potatoes as well as the artificial 
 grasses, which are usually renewed like oth- 
 er crops. But such things as are of sponta- 
 neous growth, as roots and trees not annual, 
 and the fruit on such trees, although ripe, 
 and grass growing, even if ready to cut, or a 
 second crop of clover, although the first crop 
 taken before the end of the term did not re- 
 pay the expense of cultivation, do not fall 
 within the description of emblements; Cro. 
 Car. 515; Cro. Eliz. 463; Whitmarsh v. Cut- 
 ting, 10 Johns. (N. Y.) 361; Co. Lilt. 55 b ; 
 Tayl. Landl. & T. § 534 ; Woodf. Landl. & T. 
 750. 
 
 But although a tenant for years may not 
 be entitled to emblements as such, yet by the 
 custom of the country, in particular districts, 
 he may be allowed to enter and reap a crop 
 which he has sown, after his lease has ex- 
 pired ; Dougl. 201 ; 16 East 71 ; 7 Bingh. 465. 
 The parties to a lease may, of course, regu- 
 late all such matters by an express stipula- 
 tion ; but in the absence of such stipulation 
 it is to be understood that every demise is 
 open to explanation by the general usage of 
 the country where the land lies, in respect 
 to all matters about which the lease is si- 
 lent ; and every person is supposed to be cog- 
 nizant of this custom and to contract in ref- 
 erence to it; Stullz v. Dickey, 5 Binn. (Pa.) 
 285, 6 Am. Dec. 411. The rights of tenants, 
 therefore, with regard to the away-going 
 crop, will differ in different sections of the 
 country; thus, in Pennsylvania and New 
 Jersey a tenant is held to be entitled to the 
 grain sown in the autumn before the expira- 
 tion of his lease, and coming to maturity in 
 the following summer; Mitch. R. P. 24; 
 Clark v. Harvey, 54 Pa. 142 ; Hudson v. Por- 
 ter, 13 Conn. 59 ; Howell v. Schenck, 24 N. J. 
 L. S9 ; while in Delaware the same custom is 
 said to prevail with respect to wheat, but 
 not as to oats ; Templeman v. Biddle, 1 Harr. 
 (Del.) 522; and trespass will lie against one 
 who interferes with the land to the injury of 
 the outgoing tenant; Clark v. Banks, 6 
 Houst. (Del.) 584. 
 
 Of a similar nature would be the tenant's 
 right to remove the manure made upon the 
 farm during the last year of the tenancy. 
 Good husbandry requires that it should ei- 
 ther be used by the tenant on the farm, or 
 left by him for the use of his successor; and 
 such is the general rule on the subject in 
 England as well as in this country ; Middle- 
 brook v. Corwin, 15 Wend. (N. Y.) 169; 
 Gcodricb v. Jones, 2 Hill (N. Y.) 142. A 
 different rule has been laid down in North 
 Carolina; 2 Ired. 320; hut it is clearly at 
 variance with the whole current of Ameri- 
 can authorities upon this poiut. See Ma- 
 nure. Straw, however, is incidental to the 
 crop to which it belongs, and may be remov- 
 
 ed in all cases where the crop may be ; Fobes 
 
 v. Shattuck, 22 Barb. (N. Y. • 
 
 Dale, 1 W. & S. (Pa 7 Am. Dec 
 
 There are sometimes, also, mutual privi- 
 leges, in the nature of emblements, which 
 are founded on the common usage of the 
 neighborhood where there is no e.v 
 agreement to the contrary, applicable to both 
 outgoing and incoming tenants. Tims, tli'' 
 outgoing tenant may by custom be entitled 
 to the privilege of retaining possession of 
 the land on which his away-going cro] 
 sown, with the use of the barns and stables 
 for housing and carrying them away ; while 
 the incoming tenant has the privilege of en- 
 tering during the continuance of .the old ten- 
 ancy for the purposes of ploughing and ma- 
 nuring the land. But, independently of any 
 custom, every tenant who is entitled to em- 
 blements has a right of ingress, egress, and 
 regress to cut and carry them away, and the 
 same privilege will belong to his. vendee, — 
 neither of them, however, having any ex- 
 clusive right of possession. See Wintermute 
 v. Light, 46 Barb. (N. Y.) 278; Tayl. Landl. 
 & T. § 543; Woodf. Landl. & T. 754; Land- 
 lord and Tenant; Away-going Crop; Grow- 
 ing Crops. 
 
 EMBRACE0R. He who, when a matter 
 is on trial between party and party, comes 
 to the bar with one of the parties, and, hav- 
 ing received some reward so to do, spe 
 the case or privily labors the jury, or stands 
 there to survey or overlook them, thereby to 
 put them in fear and doubt of the matter. 
 But persons learned in the law may speak 
 in a cause for their clients. Co. Litt 369 : 
 Tcrmes de la Ley. 
 
 EMBRACERY. An attempt to corrupt or 
 influence a jury, or any way incline them to 
 be more favorable to one side than to the 
 other, by money, promises, threats, or p< 
 sions, whether the juror on whom such at- 
 tempt is made give any verdict or i 
 whether the verdict be true or false. Hawk. 
 PI. Cr. 259; Co. Litt 157b, 309a; 11 Mod. 
 Ill, 118; Gibbs v. Dewey, 5 Cow. (N. Y. ) 
 503; 2 Bish. Cr. L. g 389; State v. Sales, 2 
 Nev. 26S; Grannis v. Branden, 5 Day (Conn. I 
 260, 5 Am. Dec. 143; State v. Keyes. S Yt. 
 57, 30 Am. Dec. 450. 
 
 Such an attempt is a misdemeanor at com- 
 mon law; CI. Cr. L. 326. 
 
 See Jury. 
 
 EM EN DA (Let) Amends. That which is 
 given in reparation or satisfaction for a tres- 
 pass committed; or, among the Saxons, a 
 
 compensation for a crime. Spelmau, • 
 
 EMENDALS. In English Law. This an- 
 cient word is said to be used in the accounts 
 of the Inner Temple, where so much in omen- 
 dais at the foot of an account signifies so 
 much in bank, or stock, for the supply of 
 emergencies. Cunningham, Law Diet But
 
 EMEND ALS 
 
 1008 
 
 EMINENT DOMAIN 
 
 ^pelman says it is what is contributed for 
 the reparation of losses. Cowell. 
 
 EMENDATIO PANIS ET CERVISI/E. 
 
 The power of supervising and correcting the 
 weights and measures of bread and ale. 
 Cowell. 
 
 EMERGENCY. An unforeseen occurrence 
 or condition. See Accident. 
 
 EMIGRANT. One who quits his country 
 for any lawful reason, with a design to set- 
 tle elsewhere, and who takes his family and 
 property, if he has any, with him. Vattel, 
 b. 1, c. 19, § 224. See Mcllvaine v. Coxe, 2 
 Cra. (U. S.) 302, 2 L. Ed. 279. 
 
 EMIGRA.NT AGENT. As used in a 
 Georgia statute taxing emigrant agents, a 
 person engaged in hiring laborers in a state 
 to be employed beyond its limits. Williams 
 v. Fears, 179 U. S. 270, 21 Sup. Ct. 128, 45 
 L. Ed. 1S6, affirming 110 Ga. 5S4, 35 S. E. 
 099, 50 L. R. A. 6S5. See Employment 
 Agencies. 
 
 EMIGRATION. The act of removing from 
 one place to another. 
 
 It is sometimes used in the same sense as 
 expatriation ; but there is some difference 
 in the signification. Expatriation is the act 
 of abandoning one's country ; while emigra- 
 tion is, perhaps not strictly, applied to the 
 act of removing from one part of the coun- 
 try to another. See 2 Kent 34, 44 ; Expatria- 
 tion. 
 
 EMINENCE. A title of honor given to 
 cardinals. 
 
 EMINENT DOMAIN. The superior right 
 of property subsisting in a sovereignty, by 
 which private property may in certain cases 
 be taken or its use controlled for the public 
 benefit, without regard to the wishes of the 
 owne". 
 
 The power to take private property for 
 public use. West River Bridge Co. v. Dix, 6 
 How. (U. S.) 536, 12 L. Ed. 535. 
 
 The right of every government to appro- 
 priate otherwise than by taxation and its 
 police authority (which are distinct powers), 
 private property for public use. Dill. Mun. 
 Corp. § 5S4. 
 
 History and Nature of the Power. The 
 phrase "eminent domain" appears to have 
 originated with Grotius, who carefully de- 
 scribes its nature ; Lewis, Em. Dom. § 3, n. ; 
 Mills, Em. Dom. § 5; 1 Thayer, Cas. Const. 
 L. 945. The power is a universal one and 
 as old as political society, and the American 
 constitutions do not change its scope or na- 
 ture but simply embody it, as described by 
 Grotius, in positive, fundamental law. 
 
 The language of Grotius is: "We have elsewhere 
 said, that the property of subjects is under the 
 eminent domain of the state ; so that the state, or 
 he who acts for it, may use, and even alienate and 
 destroy such property; not only in case of extreme 
 necessity, in which even private persons have a 
 right over the property of others; but for ends of 
 public utility, to which ends those who founded civil 
 
 society must be supposed to have intended that 
 private ends should give way. But it is to be added, 
 that when this is done, the state is bound to make 
 good the loss to those who lose their property ; and 
 to this public purpose, among others, he who has 
 suffered the loss must, if need be, contribute." 
 Grotius, Bel. ac Pac. lib. iii. c. 20. In the last clause 
 quoted there seems to be an expression thus early 
 of the doctrine which commonly forms a part of 
 later legislation in the exercise of the right of emi- 
 nent domain of the assessment of benefits on the 
 person whose property is taken. 
 
 The term used by Grotius has been objected to by 
 other writers, as, for example Bynkershoek, who 
 prefers the terms imperium eminens rather than 
 dominium eminens, considering the former as more 
 accurately expressing the idea of supreme power. 
 At the same time that he advocates the use of a 
 terminology to give more emphatic expression to the 
 sovereign nature and character of the power, this 
 writer discusses the question whether it may be ex- 
 ercised only for necessity as he conceives Puffendorf 
 to urge, or also on the ground of convenience or, to 
 use the exact phrase of Grotius, utility. Bynker- 
 shoek considers either ground sufficient, but he also 
 lays down the principle of requiring compensation 
 not merely for a taking, but for "every loss which 
 private persons bear for the common necessity or 
 utility," thus anticipating the doctrine not recog- 
 nized by writers of his time, but accepted by mod- 
 ern constitution makers, under the name of conse- 
 quential damages for injury to, as well the direct 
 loss occasioned by, the taking private property. 
 Quest. Jur. Pub. lib. ii. c. 15. Puffendorf also criti- 
 cises the term employed by Grotius. He divides the 
 term control (potestas) into dominium as used in 
 respect to what is one's own, and imperium, with 
 respect to what belongs to others. Accordingly he 
 would consider that imperium eminens is more ac- 
 curate than dominium eminens; De Jure Natural 
 et Gentium, lib. i. c. 1. s. IS). So Heinneccius says: 
 "We confess that this use df the word is not quite 
 apt, for the conception of dominium and that of 
 imperium are different things ; it is the latter and 
 not the former which belongs to rulers," but he 
 adds, that as there is no doubt about the absolute 
 right, it is useless to condemn the word when once 
 it has been accepted; Elem. Jur. Nat. et Gent. lib. 
 ii. c. 8, s. 168. 
 
 All these writers agree that the power is exercised 
 as an attribute of sovereignty, and in this conclu- 
 sion there is a general concurrence. Vattel says: 
 "In political society everything must give way to 
 the common good; and if even the person of the 
 citizens is subject to this rule, their property can- 
 not be excepted. The state cannot live, or continue 
 to administer public affairs in the most advanta- 
 geous manner, if it have not the power, on occasion, 
 to dispose of every kind of property under its con- 
 trol. It should be presumed that when the nation 
 takes possession of a country, property in specific 
 things is given up to individuals only upon this 
 reservation." So it was said by the U. S. Supreme 
 Court: "The power to take private property for 
 public use, generally termed the right of eminent 
 domain, belongs to every independent government. 
 It is an incident of sovereignty, and as said in 
 Mississippi & R. River Boom Co. v. Patterson, 98 
 U. S. 403, 25 L. Ed. 206, requires no constitutional 
 recognition ;" Field, J., U. S. v. Jones, 109 U. S. 
 513, 51S, 3 Sup. Ct. 346, 27 L. Ed. 1015. 
 
 Blackstone rests the doctrine upon necessity, and 
 considers the recognized right to compensation as 
 evidence of the great regard of the law for private 
 property ; while the good of the individual must 
 yield to that of the community, the legislature alone 
 may interpose to compel the individual to acquiesce, 
 but such interposition is not arbitrary but only 
 upon full indemnification and equivalent for the in- 
 jury thereby sustained. The nature of the transac- 
 tion he states thus: "All that the legislature does, 
 is to oblige the owner to alienate his possessions 
 for a reasonable price ; and even this is an exer- 
 tion of power which the legislature indulges with
 
 EMINENT DOMAIN 
 
 1009 
 
 EMINENT DOMAIN 
 
 caution, and which nothing but the legislature can 
 perform." 1 Sharsw. Bla. Com. 139, n. 19. 
 
 This statement by Blackstone of English law is to 
 be borne in mind hereafter in considering the nature 
 and origin of the right to compensation. Here we 
 have the right defined with the same limitation 
 which, as will be seen, is sometimes claimed to rest 
 solely on express provisions of written constitutions. 
 And the force of this statement is strengthened not 
 weakened, by the observation of Bullur, J., that 
 there were many cases in which an injury is suf- 
 fered by individuals for which there is no right of 
 action, as in a case of the destruction of private 
 property in time of war for the public defence; id.; 
 4 Term 791; 3 Wils. 4C1 ; 6 Taunt. 29. 
 
 Notwithstanding this recognition of the nature of 
 the power the subject of eminent domain as under- 
 stood in the United States is practically eliminated 
 from English, law and the title itself is usually not 
 to be found in digests or text books of that country. 
 "That there is no eminent domain in English juris- 
 prudence," says a recent writer on the subject, "is 
 because the power is included, and the obligation to 
 compensate lost, in the absolutism of parliament." 
 "The only technical term approximating to eminent 
 domain, is compulsory power, as used in acts en- 
 abling municipal and other corporations to take 
 property for their use. The multiplication of such 
 acts led to the enactment of several general laws, 
 notably the Lands Clauses Consolidation Act (q. v.), 
 which is a complete code. This act or one of the 
 others of a similar class, as the Railway Clauses 
 Consolidation Act, is incorporated by reference in 
 the various special acts ;" Rand. Em. Dom. § 7. 
 
 It follows of necessity that English decisions do 
 not apply to the vast number of constitutional ques- 
 tions constantly arising in this country, though the 
 adherence of English legislation to the same great 
 principle of compensation necessarily results in pro- 
 ducing a body of law in England covering most of 
 the questions which are adjudicated in our own 
 country respecting the construction and application 
 of statutes under which the power is exercised. 
 
 The subject is treated at length in 6 Halsbury, 
 Laws of England 1, under the title of Compulsory 
 Purchase of Land, where (p. 12) it is pointed out 
 that the earliest act appears to be one for supply- 
 ing Gloucester with water in 1541-42, called "The 
 Bill for the Conduyttes at Gloucester" ; and that 
 there was a similar act in 1543-44 for rebuilding 
 London after the Great Fire. 
 
 Different theories are advanced as to the precise 
 nature of the power, and it has been defined to be 
 the right retained by the people or government over 
 the estate of individuals, to reclaim the same for 
 public use, — a kind of reserved right or estate re- 
 maining in the sovereign as paramount to the in- 
 dividual title. This conception of the right was at 
 one time very generally accepted. The result of 
 this view is to consider the right, theoretically at 
 least, as so much of the original proprietorship re- 
 tained by the sovereign power in granting lands or 
 franchises to individuals or corporations, wherever 
 the common-law theory of original proprietorship 
 prevails. An argument by analogy in support of 
 this view is derived from the able examination and 
 explanation of the origin of the jus publicum in 
 Com. v. Alger. 7 Cush. (Mass.) 90. See, also, remarks 
 of Daniell, J., in West River Bridge Co. v. Dix, 6 
 How. (U. S.) 533, 12 L. Ed. 535. Perhaps no better 
 statement of this doctrine is to be found than this: 
 "The highest and most exact idea of property re- 
 maining in the government, or in the aggregate 
 body of the people in their sovereign capacity, giv- 
 ing a right to resume the possession of the prop- 
 erty in the manner directed by the constitution and 
 the laws of the state whenever the public good re- 
 quires it." Beekman v. R. Co., 3 Paige. Ch. (N. Y.) 
 73, 22 Am. Dec. 679; or, "The true theory and 
 principle of the matter is, that the legislature re- 
 sume dominion over the property, and having re- 
 sumed it, instead of using it by their agents, to 
 effect the intended public good, and to avoid en- 
 tanglement in the common business of life, they 
 revest it in other individuals or corporations to be 
 
 Bouv.— 64 
 
 used by them in such manner as to effect, directly 
 or indirectly, or Incidentally, as the case may be, 
 the public good intended." Todd v. Au- 
 Conn. 78 ; see also Harding v. Goodlett, 3 
 
 I 41, 21 Am. D« c. 546 Hej vai I v. City of 
 New York, 8 Barb. (N. . -.re Union El. R. 
 
 Co., 113 X. Y. 875, 21 N. E. 81 ; Biddle v. Hussman, 
 23 Mo. 597. 
 
 But this theory of resumption of original pro- 
 prietorship Is disapproved by the most authorita- 
 tive writers, and with reason; the weight of au- 
 thority and of argument are both against it. In 
 this country the right is exercised by two govern- 
 ments, each sovereign, operating on the 
 erty ; the federal power can, upon no hypothesis, 
 be based upon original grant in the older states, 
 nor perhaps the state power, in the new states ; a 
 new sovereignty by acquiring territorial rights suc- 
 ceeds to this right over property, of which the 
 original grant was from the prior one; property 
 may be appropriated a second time after the 
 has been already exercised and, upon the theory 
 under consideration, necessarily exhausted ; person- 
 al property is subject to the right, although the 
 doctrine of reserved right cannot apply to it, while 
 the reversion of the state will supply no argument, 
 as it applies equally to personal property in which 
 the state never had any title; and any paramount 
 or reserved right could be granted, but this right 
 never can; Sholl v. Coal Co., US 111. 427, 10 N. E. 
 199, 59 Am. Rep. 379 ; New York, H. & N. R. Co. v. 
 R. Co., 36 Conn. 196. All these considerations are 
 inconsistent with the theory suggested and seem 
 to leave no alternative but to recognize the right as 
 an attribute of sovereignty and in no sense an in- 
 terest or estate. See Lewis, Em. Dom. § 3; Rand. 
 Em. Dom. § 3 ; Noll v. R. Co., 32 la. 66 ; Raleigh 
 & G. R. Co. v. Davis, 19 N. C. 451 ; Bloodgood v. 
 R. Co., 18 Wend. (N. Y.) 9, 57, 31 Am. Dec. 313 ; 2 
 Redf. Railw. 229. 
 
 It is an inherent power which beloi - 
 the states and was nut surrendered to the 
 United States, and it is untouched by any 
 provision of the federal constitution. It ex- 
 tends to tangible and intangible property, to 
 a chose in action, a charter or any kind of 
 contract, as well as to land and movables. 
 It is not limited by the inhibition against 
 impairing the obligation of contracts. The 
 obligation of a contract is not impaired by 
 being taken under eminent domain if com- 
 pensation be made. Every contract between 
 the state and the individual or between in- 
 dividuals is subject to this law; City of Cin- 
 cinnati v. R. Co.. 223 U. S. 390, 31" Sup. Ct 
 UG7, 5G L. Ed. 4S1. 
 
 One of the inalienable rights of - 
 ty; Bollister v. State, 9 Ida. 8, 71 Pac. 
 541; Central Branch U. V. R. Co. v. R. « 
 Kan. 453; Woodmere C< metery v. Roulo, 104 
 Mich. 595, C2 N. AY. L010 ; Painter v. St 
 Clair. 98 Va. 85, .". t S. E. 989; and may bo 
 exercised for pul li'- purposes in the a' 
 of any constitutional restriction; An. 
 v. Draining Co., 14 Ind. 199, 77 Am. Dec. 63. 
 It lies dormant in the state until legislative 
 action determines the occasion, mode. 
 tions, and agencies for its exercise: 
 v. Jones. 17 ind. 438; s;. Louis, II. & K. C. 
 R. Co. v. Union Depot Co.. 125 Mo. 82, 28 S. 
 AY. is". : the Legislature may determini 
 estate or quantity of Interest in lands which 
 may 1 e taken : Cleveland, C, C. & I. R. Co. v. 
 R. Co., 91 Ind. r>.">7 : the power is recognized 
 but not granted by the constitution ; Samisli
 
 EMINENT DOMAIN 
 
 1010 
 
 EMINENT DOMAIN 
 
 River Boom Co. v. Union Boom Co., 32 Wash. 
 5S6, 73 Pac. 670 ; by which it is limited ; Con- 
 sumers' Gas Trust Co. v. Harless, 131 Ind. 
 446, 29 N. E. 1062, 15 L. R. A. 505 ; it is the 
 "offspring of political necessity, and is in- 
 separable from sovereignty unless denied to 
 it by its fundamental law" ; Searl v. School 
 Dist. No. 2, 133 U. S. 553, 10 Sup. Ct 374, 33 
 L. Ed. 740, cited in Adams v. Henderson, 168 
 U. S. 574, IS Sup. Ct. 179, 42 L. Ed. 584. 
 
 Distinction beticeen Eminent Domain and 
 Other Powers. The constitutional require- 
 ment that compensation be made for proper- 
 ty taken for public use does not restrict the 
 inherent power of the state under reasonable 
 regulation to protect the lives and secure the 
 safety of the people; Chicago, B. & Q. R. 
 Co. v. Chicago, 166 U. S. 226, 17 Sup. Ct. 581, 
 41 L. Ed. 979 ; instances of taking or de- 
 struction of property which have been sus- 
 tained are : the change of boundaries of mu- 
 nicipal corporations ; Little Rock v. North 
 Little Rock, 72 Ark. 195, 79 S. W. 7S5 ; re- 
 striction on a mill site which another one 
 had previously appropriated ; Otis Comp. 
 v. Mfg. Co., 201 U. S. 140, 26 Sup. Ct. 353, 50 
 L. Ed. 696, affirming Otis Co. v. Ludlow Mfg. 
 Co., 186 Mass. 89, 70 N. E. 1009, 104 Am. St. 
 Rep. 563 ; the construction and operation of 
 a water works plant by a city in competition 
 with a company which had constructed 
 works under a franchise from the city ; City 
 of Meridian v. Loan & Trust Co., 143 Fed. 
 67, 74 C. C. A. 221, 6 Ann. Cas. 599 ; the de- 
 struction of a fruit tree affected with the 
 "yellows"; State v. Main, 69 Conn. 123, 37 
 Atl. 80, 36 L. R. A. 623, 61 Am. St. Rep. 30 ; 
 abatement of a public nuisance and the as- 
 sessment of the benefits of such abatement 
 to the owner; Rude v. St. Marie, 121 Wis. 
 634, 99 N. W. 460; the restrictions imposed 
 by game laws; Ex parte Fritz, 86 Miss. 210, 
 38 South. 722, 109 Am. St. Rep. 700; State 
 v. Heger, 194 Mo. 707, 93 S. W. 252; State 
 v. Theriault, 70 Vt. 617, 41 Atl. 1030, 43 L. 
 R. A. 290, 67 Am. St. Rep. 695; reasonable 
 health regulations; State v. Robb, 100 Me. 
 180, 60 Atl. 874, 4 Ann. Cas. 275. 
 
 "Acts done in the exercise of governmental 
 powers and not directly encroaching upon 
 private property, though their consequences 
 may be to impair its use, are universally 
 held not to be a taking" within the fifth 
 amendment ; Northern Transp. Co. v. Chi- 
 cago, 99 U. S. 635, 25 L. Ed. 336; Union 
 Bridge Co. v. U. S., 204 U. S. 390, 27 Sup. Ct 
 367, 51 L. Ed. 523. So of the change of lo- 
 cation of gas pipes under a municipal reg- 
 ulation enacted for the public safety under 
 the police power ; Union Bridge Co. v. U. S., 
 204 U. S. 395, 27 Sup. Ct. 367, 51 L. Ed. 523 ; 
 and an ordinance requiring a railroad com- 
 pany to lower its tunnel under the Chicago 
 river to afford increased depth of water for 
 navigation ; West Chicago Street Ry. Co. v. 
 Illinois, 201 U. S. 506, 26 Sup. Ct. 518, 50 L. 
 Ed. 845; so of an order of the secretary of 
 
 war requiring a bridge over a navigable riv- 
 er to be raised in aid of navigation ; Union 
 Bridge Co. v. U. S., 204 U. S. 364, 27 Sup. Ct. 
 367, 51 L. Ed. 523. 
 
 This right is distinguished from public do- 
 main, which is property owned absolutely 
 by the state in the same manner as an in- 
 dividual holds his property ; 19 (No. 37) Am. 
 Jur. 121 ; 2 Kent 339 ; Corporation of Mem- 
 phis v. Overton, 3 Yerg. (Tenn.) 3S9; West 
 River Bridge Co. v. Dix, 6 How. (U. S.) 540, 
 12 L. Ed. 535 ; termed by Cooley "the ordi- 
 nary domain of the state"; Const Lim. 642. 
 
 The right of eminent domain is not to be 
 confounded with cases in which there ex- 
 ists a sovereign right to take or destroy 
 private property without making compensa- 
 tion. The familiar case of taxation is read- 
 ily distinguished. An owner is not entitled 
 to compensation for damage or loss to prop- 
 erty taken or destroyed during war. As to 
 the distinction between the war power and 
 eminent domain see 13 Am. L. Reg. 265, 337, 
 401 ; Mills, Em. Dom. § 3. So property may 
 be taken under a controlling necessity, or to 
 prevent the spread of a fire ; 12 Co. 63 ; Kel- 
 ler v. City of Corpus Christi, 50 Tex. 614, 32 
 Am. Rep. 613; McDonald v. City of Red 
 Wing, 13 Minn. 38 (Gil. 25) ; Mayor, etc., of 
 New York v. Lord, 18 Wend. (N. Y.) 126; 
 Amer. Print Works v. Lawrence, 21 N. J. L. 
 248. 
 
 In trespass for destruction of goods, de- 
 stroyed by the blowing up a building to pre- 
 vent the spread of fire in a city, ordered by 
 defendant as Mayor of New York, the com- 
 mon-law plea of necessity is good in justifica- 
 tion and it need not be averred that the de- 
 fendant was a resident of or owner of prop- 
 erty, in the city, or that his own property 
 was in danger; American Print Works v. 
 Lawrence, 23 N. J. L. 590, 57 Am. Dec. 420. 
 And similarly are treated proceedings under 
 the police power, to abate a nuisance (q. v.); 
 Com. v. Alger, 7 Cush. (Mass.) 53 (in which 
 Shaw, C. J., draws the distinction between 
 the police power and eminent domain) ; Ban- 
 croft v. Cambridge, 126 Mass. 438; or by 
 restraining the owner of land from making 
 a noxious use of it; Chicago & A. R. Co. v. 
 R. Co., 105 111. 388, 44 Am. Rep. 799; or by 
 removing sand, etc., from beaches; Com. v. 
 Tewksbury, 11 Mete. (Mass.) 55; compelling 
 railroads to erect cattle guards; Thorpe v. 
 R. Co., 27 Vt. 140, 62 Am. Dec. 625 ; or hold- 
 ing them responsible for damages by fire 
 (q. v.) from locomotives ; Rodemacher v. R. 
 Co., 41 la. 297, 20 Am. Rep. 592 ; compelling 
 riparian owners to keep up a levee; Boulig- 
 ny v. Dormenon, 2 Mart. N. S. (La.) 455: or 
 changing the course of a river; Green v. 
 Swift, 47 Cal. 536; or as a forfeiture for 
 violation of law; State v. Snow, 3 R. I. 64; 
 People v. Hawley, 3 Mich. 330 ; Erie & N. E. 
 R. Co. v. Casey, 26 Pa. 287 ; Guillotte v. New 
 Orleans, 12 La. Ann. 432.
 
 EMINENT DOMAIN 
 
 1011 
 
 EMINENT DOMAIN 
 
 The Right of Compensation. Though not 
 included in the definitions of the power as 
 usually given, the necessity for compensa- 
 tion is recognized by the most authoritative 
 writers as an incident to the ri.idit, an orig- 
 inal element of its existence, and nut a super- 
 imposed limitation. 
 
 Accordingly eminent domain is said with 
 more precision to be the right of the nation 
 or the state, or of those to whom the power 
 has been lawfully delegated, to condemn pri- 
 vate property to public use, and to appro- 
 priate the ownership and possession of such 
 property for such use, upon paying to the 
 owner a due compensation, to be ascertained 
 according to law; Black, Const. L. ;>.">0. 
 
 So far as the federal constitution is con- 
 cerned, a state may authorize the taking pos- 
 session of property for a public use, prior 
 to any payment therefor, or even the deter- 
 mination of the amount of compensation, 
 provided adequate provision is made for such 
 compensation ; Williams v. Parker, 1S8 U. 
 S. 491, 23 Sup. Ct 440, 47 L. Ed. 559. 
 
 Nearly if not all of the American consti- 
 tutions provide for compensation. Professor 
 Thayer states that "now (1S95) only three 
 constitutions, New Hampshire, North Caro- 
 lina, and Virginia are without a clause ex- 
 pressly requiring compensation." The provi- 
 sions of the several then constitutions are 
 given in Randolph, Em. Dom. 401 to 416, and 
 Lewis, Em. Dom. §§ 14 to 52 (the latter in- 
 cluding the prior as well as the last state 
 constitutions). Nichols, Em. Dom. (1909) 
 gives the provisions of twenty-seven state 
 constitutions requiring prepayment; § 2G7. 
 In one of these states a statute providing 
 that possession might be taken after the 
 money was paid into court and before the 
 amount of the compensation was ascertained 
 was held unconstitutional on the ground that 
 the owner was entitled to hold the land until 
 he received the money ; Steinhart v. Superior 
 Court, 137 Cal. 575, 70 Pac. 629, 59 L. R. A. 
 404, 92 Am. St. Rep. 183. 
 
 With respect to compensation, Kent says: 
 "This principle, in American constitutional 
 jurisprudence, is founded in natural equity, 
 and is laid down by jurists as an acknowl- 
 edged principle of universal law;" 2 Com. 
 339. 
 
 It would seem to be the most satisfactory 
 conclusion both upon reason and authority 
 that neither the right of the state to take 
 nor the right of the individual to compensa- 
 tion required a constitutional assertion. The 
 right to take private property for public use 
 does not depend on constitutional provisions, 
 but is an attribute of sovereignty ; Sinnick- 
 son v. Johnson, 17 N. J. L. 129, 34 Am. Dec. 
 1S4 ; Raleigh & G. R. Co. v. Davis, 19 N. C. 
 451 ; it (the right) exists, and the only lim- 
 itation upon its exercise is that imposed by 
 the state or federal constitution ; Wilson v. 
 R. Co., 5 Del. Ch. 524. 
 
 So also the right to compensation is an in- 
 
 cident to the exercise of the power, insep- 
 arably connected with it; Sinnickson v. John- 
 son, 17 N. J. L. 129, 34 Am. I "this 
 is an affirmance of . doctrine • 
 lished by the common law for the pro! 
 of private property;" 2 Story, • 
 "the obligation i 
 
 the power, though it is not provided for by 
 the state constitution, or that of the i 
 Slates had not enjoined it;" Bonaparte v. 
 R. Co., Baldw. C. C. 220, Fed. Cas. No 
 "If by the assertion that this right e 
 at common law independent of the declara- 
 tion of rights, is meant that compensation 
 in such case is required by a plain dictate of 
 natural justice, it must be conceded. The 
 bill of rights declares a great principle ; th<- 
 particular law prescribes a practical rule 
 by which the remedy for the violation of 
 right is to be sought and afforded ;'" Shaw, 
 C. J., in Hazen v. Essex Co.. 12 Cush. (Mass.) 
 475. In New Hampshire, although the con- 
 stitution did not contain an express provision 
 requiring compensation, "yet it has been con- 
 strued by the courts, in view of the spirit 
 and tenor of the whole instrument, as pro- 
 hibiting such taking without compensation; 
 and it is understood to be the settled law of 
 the state, that the legislature cannot con- 
 stitutionally authorize such taking without 
 compensation ;" Eaton v. R. R., 51 N. II. 504, 
 12 Am. Rep. 147. It is a condition precedent 
 to its exercise under a statute that it make 
 reasonable provision for compensation to the 
 owner of the property taken; Sweet v. Rech- 
 el, 159 U. S. 380, 16 Sup. Ct 43, 40 L. Ed. 
 188; Gardner v. Newburgh, 2 Johns. Ch. (N. 
 Y.) 162, 7 Am. Dec. ! 
 
 There are .dicta which countenance the 
 opinion that compensation is not of the es- 
 sence of eminent domain, that the usual con- 
 stitutional clause is restrictive, not declara- 
 tory, so that, were it omitted, the state could 
 properly take property without paying for 
 it; Rand. Em. Dom. § 226, citing Mississippi 
 & R. River Boom Co. v. Patterson, 98 D. S. 
 hi:;, 25 L. Ed. 206; U. S. v. Jones, 109 r. B. 
 513, 3 Sup. Ct. 346, 27 L. Ed. 1015; Clark v. 
 Town of Saybrook, 21 Conn. 313 ; Wilson 
 v. R. Co., 5 Del. Ch. 524; In re Furman St.. 
 17 Wend. (N. Y.) 649; Orr v. Quimby, 5 I X. 
 H. 590, 647. In one of these cases the lan- 
 guage used is "the provision found in the 
 federal and state constitutions for just com- 
 pensation for property taken is no part of 
 the power itself, but merely a limitation up- 
 on the use of it, a condition upon which it 
 may be exercised;" 1". S. v. Jones, 109 U. S. 
 513, 3 Sup. Ct. 346, 27 L. Ed. 1015. 
 
 One of the text writers ou the subject takes 
 this view; Lewis, Em. Dom. § 10; and argues 
 it with great earnestness, treating it as the same 
 question discussed by Sedgwick and Cooley and 
 referred to supra under the title Constitutional 
 (q. v.), whether there are limitations of legislative 
 power other than those contained In the constitu- 
 tions, federal and state. The real question involved 
 in the relation of compensation to eminent domain 
 is a different one. It is not whether the sovereign
 
 EMINENT DOMAIN 
 
 1012 
 
 EMINENT DOMAIN 
 
 powers of government exercised by American state 
 legislatures are subject to undefined limitations not 
 embodied in the written constitution, but what is 
 the sovereign power which we term eminent domain, 
 as recognized and exercised by governments long 
 before written constitutions were known. It is true 
 that some courts in discussing this subject have 
 fallen into the same confusion of ideas, but the dis- 
 tinction none the less exists and should be borne 
 in mind. Is it the right to take private property 
 arbitrarily, or only to take it on making compensa- 
 tion? Lewis thinks "the question has lost most 
 of its practical interest from the fact that all states 
 except one (North Carolina), now have an express 
 limitation in their organic law touching the exercise 
 of this power." It is submitted, however, that the 
 precise definition and true limitation of so auto- 
 cratic a governmental power can never become a 
 matter of indifference. So long as one state consti- 
 tution is silent on the subject of compensation it 
 remains a practical question in American constitu- 
 tional law and the existence of a reserved power to 
 amend or abolish any existing constitution, coupled 
 with the prevalent tendency to attack and impair 
 the right to private property, must necessarily keep 
 it such, independently of the theoretical interest in 
 maintaining correct definitions of the inherent rights 
 of sovereignty. 
 
 Suggestions in the line of the cases cited by Ran- 
 dolph and the views expressed by Lewis, led to 
 practical results in but few cases: — In South Caro- 
 lina land was taken for roads without compensa- 
 tion ; Lindsay v. Street Com'rs, 2 Bay (S. C.) 38 ; 
 State v. Dawson, 3 Hill (S. C.) 100 ; but in New 
 York, taking wild land without compensation was 
 held unconstitutional ; Wallace v. Karlenowefski, 
 19 Barb. (N. Y.) 118. In New Jersey and Pennsyl- 
 vania, the subject rested on a statutory rather than 
 a constitutional basis, because the grants by the 
 proprietors included an extra allowance for roads ; 
 Simmons v. City of Passaic, 42 N. J. L. 619 ; Work- 
 man v. Mifflin, 30 Pa. 362; and this was held com- 
 pensation ; East Union Tp. v. Conirey, 100 Pa. 362. 
 See Wagner v. Salzburg Tp., 132 Pa. 636, 19 Atl. 294. 
 Under the New Jersey constitution, land might be 
 taken for highways without compensation until oth- 
 erwise directed by the legislature. In Louisiana 
 land on the Mississippi River can be taken -without 
 compensation for the construction of a public levee 
 under the old French law, and this applies to the 
 land of a citizen of another state, provided he re- 
 ceive the same measure of right as citizens of Lou- 
 isiana in regard to their property similarly situ- 
 ated ; Eldridge v. Trezevant, 160 U. S. 452, 16 Sup. 
 Ct. 345, 40 L. Ed. 490. 
 
 Mr. James B. Thayer (Cases, Const. L. 953) dis- 
 cusses this subject in a very interesting note and 
 reaches the somewhat metaphysical conclusion that 
 the right to compensation is not a component part of 
 the right to take, though it arises at the same time 
 and the latter cannot exist without it, the two be- 
 ing compared to shadow and substance. 
 
 He argues that the right of the state springs 
 from the necessity of government, while the obliga- 
 tion to reimburse stands upon the natural rights of 
 the individual. "These two, therefore, have not the 
 same origin ; they do not come, for instance, from 
 any implied contract between the state and the in- 
 dividual, that the former shall have the property, 
 if it will make compensation ; the right is no mere 
 right of pre-emption, and it has no condition of 
 compensation annexed to it, either precedent or 
 subsequent. But there is a right to take, and at- 
 tached to it, as an incident, an obligation to make 
 compensation ; this latter, morally speaking, fol- 
 lows the other, indeed, like a shadow, but it is yet 
 distinct from it, and flows from another source." 
 From this he argues that for the taking the citizen 
 cannot complain ; if recompense is not made, the 
 duty of the sovereign is violated and the individual 
 "has an eternal claim against the state, which can 
 never be blotted out except only by satisfaction ; 
 but this claim is for compensation, and not for his 
 former property," and, "in the absence of constitu- 
 
 tional provisions," the loss "must be regarded as 
 damnum absque injuria." 
 
 The distinction between this theory and the doc- 
 trine that the right to compensation is an inherent 
 attribute rather than a subsequent limitation of the 
 original right would seem to be rather ingenious 
 than practical. The citations in the same note from 
 the civilians show clearly that, in their view, com- 
 pensation was essential, and even in the states 
 whose organic law was, at the time of the decision, 
 either silent or contained merely a general declara- 
 tion as to private rights the necessity of compensa- 
 tion has been recognized ; Rand. Em. Dom. § 227, 
 citing Bristol v. New Chester, 3 N. H. 524 ; In re 
 Mt. Washington Road Co., 35 N. H. 134 ; Harness 
 v. Canal Co., 1 Md. Ch. 248 ; Bonaparte v. R. Co., 
 Baldw. C. C. 205, Fed. Cas. No. 1,617 ; Johnston v. 
 Rankin, 70 N. C. 550; Staton v. R. Co., Ill N. C. 
 278, 16 S. E. 181, 17 L. R. A. S38 ; Ex parte Martin, 
 13 Ark. 198, 58 Am. Dec. 321 ; see also Monongahela 
 Nav. Co. v. U. S., 148 U. S. 312, 13 Sup. Ct. 622, 37 
 L. Ed. 463; Hazen v. Essex Co., 12 Cush. (Mass.) 
 475. The mistaken idea that the fifth amendment 
 of the constitution of the U. S., applied to the 
 states, seems to have contributed to this opinion in 
 some cases ; Gardner v. Village of Newburgh, 2 
 Johns. Ch. (N. Y.) 162, 7 Am. Dec. 526 ; Scudder v. 
 Falls Co., 1 N. J. Eq. 694, 23 Am. Dec. 756. "The 
 true doctrine is, ij the writer's opinion," says the 
 author last cited, "that which requires the payment 
 of compensation whether it be expressly enjoined 
 or not. The modern concept of a constitutional state 
 as realized in the United States has no room for 
 spoliation of the individual." The same view is 
 supported in Mills, Em. Dom. § 1. 
 
 Whatever view may be taken of the gen- 
 eral doctrine of the law on this subject the 
 necessity of compensation is firmly imbedded 
 in American constitutional law. 
 
 It may be considered settled that the ex- 
 ercise of the right is not justifiable, where 
 the statute fails to provide compensation ; 
 and the courts will, in general, substantially 
 declare such an act unconstitutional; Sweet 
 v. Rechel, 159 U. S. 3S0, 16 Sup. Ct. 43, 40 L. 
 Ed. 188 ; Richmond v. Telegraph Co., 174 U. 
 S. 761, 19 Sup. Ct. 77S, 43 L. Ed. 1162 ; U. S. 
 v. Lynah, 1SS U. S. 445, 485, 23 Sup. Ct. 349, 
 47 L. Ed. 539 ; Barron v. City of Memphis, 
 113 Tenn. 89, SO S. W. 832, 106 Am. St. Rep. 
 810; Clifton v. Town of Weston, 54 W. Va. 
 250, 46 S. E. 360; Smith v. City of Sedalia, 
 152 Mo. 2S3, 53 S. W. 907, 48 L. R. A. 711; 
 East Shore Land Co. v. Peckham, 33 R. I. 
 541, 82 Atl. 487; Higginson v. Com'rs, 212 
 Mass. 5S3, 99 N. E. 523, 42 L. R. A. (N. S.) 
 215; Sea Cliff Grove & Metropolitan Camp 
 Ground Ass'n v. Steamboat Co.. 70 Misc. 97, 
 127 N. Y. Supp. 1021 ; Kent 339, n. ; dicta 
 in 4 Term 794; Louisville, C. & C. R. R. Co. 
 v. Chappell, Rice (S. C.) 383; Stokes v. Upper 
 Appomatox Co., 3 Leigh (Va.) 337; Eastman 
 v. Mfg. Co., 44 N. H. 143, 82 Am. Dec. 201; 
 Wells v. R. Co., 47 Me. 345 ; Watkins v. Walk- 
 er County, 18 Tex. 5S5, 70 Am. Dec. 298; 
 Watson's Ex'r v. Trustees of Pleasant Tp., 
 21 Ohio St. 607 ; Shute v. R. Co., 26 111. 430 ; 
 Georgia M. & G. R. Co. v. Ry. Co., 89 Ga. 
 205, 15 S. E. 305 ; Calder v. Police Jury, 44 
 La. Ann. 173, 10 South. 726; Webster v. Ry. 
 Co., 116 Mo. 114, 22 S. W. 474 ; Monongahela 
 Nav. Co. v. U. S., 148 U. S. 312, 13 Sup. Ct 
 622, 37 L. Ed. 463 ; Searl v. School Dist No.
 
 EMINENT DOMAIN 
 
 1013 
 
 EMINENT DOMAIN 
 
 2, 133 U. S. 553, 10 Sup. Ct. 374, 33 L. Ed. 
 740. See contra, Hart v. Board of Levee 
 Com'rs, 54 Fed. 559. Such statute may be 
 treated by the land owner as void; Boston & 
 L. R. Co. v. R. Co., 2 Gray (Mass.) 1; and he 
 has the same rights against a trespasser un- 
 der color of such authority as if it did not 
 exist; Id.; Proprietors of Piscataqua Bridge 
 Co. v. Bridge Co., 7 N. II. 35. Such an act 
 is, however, said not to be so far void as not 
 to warrant the acquisition of the property 
 by purchase; Carbon Coal & Min. Co. v. 
 Drake, 20 Kan. 345. This compensation 
 must be in money; Com. v. Peters, 2 .Mass. 
 125; Vanhorne v. Dorrance, 2 Dall. (U. S.) 
 304, 1 L. Ed. 391 ; Murphy v. De Grott, 44 
 Cal. 51; Chicago, M. & St P. Ry. Co. v. Mel- 
 ville, 00 111. 329; State v. Sewer Coin'rs, 39 
 N. J. L. 005. 
 
 In constitutional construction the words 
 "just," "ample," "full," "adequate," "due," 
 etc., prefixed to the word "compensation," 
 has been said to lend no appreciable addi- 
 tional weight; Rand. Em. Dom. § 223; but 
 much stress has often been put upon it by 
 courts. The word "just" in the fifth amend- 
 ment excludes the taking into account as an 
 element in the compensation any supposed 
 benefit that the owner may receive in. com- 
 mon with all from the public uses to which 
 his private property is appropriated and 
 leaves it to stand as a declaration that no 
 private property shall be appropriated to 
 public uses unless a full and exact equiva- 
 lent for it be returned to the owner ; Monon- 
 gabela Nav. Co. v. U. S., 14S U. S. 32G, 13 
 Sup. Ct 022, 37 L. Ed. 403. The word "just" 
 is not used as an antithesis of unjust, but 
 "evidently to intensify the meaning of the 
 word compensation;" Virginia & T. R. Co. v. 
 Henry, 8 Nev. 105 ; it means recompense "all 
 circumstances considered;" Mclntire v. State, 
 5 Blackf. (Ind.) 3S4, "to save the owner from 
 suffering in his property or estate . . . 
 as far as compensation in money can go ;" 
 Bangor & P. R. Co. v. McComb, 00 Me. 290 ; 
 "making the owner good by an equivalent in 
 money;" Bigelow v. R. Co., 27 Wis. 47S. 
 
 The Federal Power. All lands held by 
 private owners everywhere within the geo- 
 graphical limits of the United States are 
 subject to the authority of the general gov- 
 ernment to take them for such objects as 
 are germane to the execution of the powers 
 granted to it; Cherokee Nation v. R. Co., 135 
 U. S. 041, 10 Sup. Ct. 905, 34 L. Ed. 295. The 
 federal government exercises its own right 
 of eminent domain subject to the constitu- 
 tional limitations requiring compensation ; it 
 does not proceed under the right of the state 
 and the measure of compensation in each 
 case may be different; Town of Nahaut v. U. 
 S., 130 Fed. 273, 70 C. C. A. 041, G9 L. K. A. 
 723, modified in U. S. v. Town of Nahant, 
 153 Fed. 520, 82 C. C. A. 470 ; Alexander v. 
 U. S., 39 Ct. CI. 3S3; Burt v. Ins. Co., 100 
 Mass. 350, 8 Am. Rep. 339; the consent of 
 
 the state is not necessary for the condemna- 
 tion, but only for the transfer of jurisdic- 
 tion; People v. Humphrey, 23 Mich. 471, 9 
 Am. Rep. 91. It has the right in territory 
 acquired either by purchase or conquest ; 
 People v. Folsom, 5 < Sal. -'.7:;. 
 
 The right of eminent domain is one of the 
 powers of the federal governmi il • ential 
 to its independent existence and perpetuity. 
 Among the purposes for which it is ex. 
 are the acquisition of lauds for forts, ar- 
 mories, arsenals, navy yards, light-ho 
 custom-houses, post-offices, court-houses, and 
 other public uses. The right may be 
 cised within the states without application to 
 them for permission to exercise it ; Kohl v. 
 U. S., 91 U. S. ."07, S.\ L. E<1 449; thi 
 that the power has not been exercised ad- 
 versely does not disprove its existence, nor 
 does the fact that in some instances the 
 states have condemned lands for the I 
 the general government ; id. It is a right 
 belonging to a sovereignty to take private 
 property for its own public uses but not for 
 those of another; hence the power of the 
 United States must be complete in itself, it 
 can neither be enlarged nor diminished, nor 
 can the manner of its exercise be regulated 
 by the state whose consent is not a condi- 
 tion precedent to its enjoyment ; id. 
 
 Originally the method of proceeding was 
 usually for the state to condemn lands for 
 the United States when needed by the latter; 
 Orr v. Quimby, 51 N. II. 590; U. S. v. Dump 
 lin Island, 1 Barb. (N. Y.) 24; Gilmer v. 
 Lime Point, 18 Cal. 229 ; Burt v. Ins. Co., 106 
 Mass. 350, S Am. Rep. 339 ; and the power 
 has been delegated by the state to the United 
 States within a comparatively recent period; 
 In re Certain Land in Lawrence, lilt Fed. 
 453; but this method is not only unnecessary, 
 but is not based on correct principles, since 
 the absolute and unqualified power belongs 
 to the federal government, and that method 
 has been disapproved; Kohl v. U. S., 91 U. 
 S. 307, 23 L. Ed. 449; Reddall v. Bryan. 14 
 Md. 444, 74 Am. Dec. 550; In re Appoint- 
 ment of U. S. Com'rs, 96 N. Y. 227. When 
 the taking of property is authorized by con- 
 gress, the proceedings are carried on under 
 federal law; Town of Nahant v. U. S.. L38 
 Fed. 273, 70 C. C. A. 041. 09 L. R. A. 723. 
 
 The United State's cannot take state prop- 
 erty devoted to a public use and the 1 
 which would interfere with the performance 
 of its duties by the state. It was on this 
 principle that the right to tax a state judi- 
 cial officer upon bis salary was denied to the 
 United States; The Collector v. Day, 11 
 Wall. (U. S.) 113. 20 L. Ed. 122: but (he 
 United States may acquire an easement in 
 the property of a state which does not inter- 
 fere with its ordinary use, as by the placing 
 of telegraph poles, under a federal authority, 
 upon state roads: City of St. Louis v. Tele- 
 graph Co.. 14S U. S. 92, 13 Sup. Ct 485, 37 
 L. Ed. 3S0; City of Richmond v. Telegraph
 
 EMINENT DOMAIN 
 
 1014 
 
 EMINENT DOMAIN 
 
 Co., 174 U. S. 761, 19 Sup. Ct. 778, 43 L. Ed. 
 1162. 
 
 It has been said that a necessity of the 
 federal government would override the right 
 of the state to the occupancy of property for 
 public use — that what was devoted to a lo- 
 cal public use might be taken for a higber 
 national use; New Orleans v. U. S., 10 Pet. 
 (U. S.) 662, 723, 9 L. Ed. 573; and it was 
 said by Bradley, J., that "if it is necessary 
 that the United States government should 
 have an eminent domain still higher than 
 that of the state, in order that it may fully 
 carry out the .objects and purposes of the 
 constitution, then it has it" ; Stockton v. R. 
 Co., 32 Fed. 9; it has paramount authority 
 in the matter of taking any property within 
 its borders for those public uses which are 
 within the constitutional reservations to the 
 general government; U. S. v. City of Tiffin, 
 190 Fed. 279; and in the Northern Securi- 
 ties Case it was said that state legislation, 
 even if in the exercise of its unquestioned 
 power, must yield, in case of conflict, to the 
 supremacy of the United States constitution 
 and the acts of congress passed pursuant to 
 it; Northern Securities Co. v. U. S., 193 U. 
 S. 197, 24 Sup. Ct. 436, 48 L. Ed. 679. As to 
 the nature and extent of power of condem- 
 nation of the United States, see note, 70 C. C. 
 A. 653. 
 
 On the other hand, the state cannot con- 
 demn land held by the United States and 
 used for public purposes; U. S. v. Chicago, 
 7 How. (U. S.) 185, 12 L. Ed. 660 ; nor can a 
 territory ; Pratt v. Brown, 3 Wis. 603. With 
 respect to land not used for public purposes 
 of which the United States is considered as 
 a private proprietor, it has been held that 
 such land might be taken; Hendricks v. 
 Johnson, 6 Port. (Ala.) 472; U. S. v. R. 
 Bridge Co., 6 McLean 517, Fed. Cas. No. 
 16,114, approved by- a dictum in U. S. v. Chi- 
 cago, 7 How. (U. S.) 185, 12 L. Ed. 660, and 
 apparently disapproved in Van Brocklin v. 
 Tennessee, 117 U. S. 151, 6 Sup. Ct. 670, 29 
 L. Ed. 845, where Gray, J. suggests that the 
 question, will, when raised, require careful 
 consideration. When the state has ceded 
 land to the federal government it has lost its 
 jurisdiction entirely; Ft. Leavenworth R. 
 Co. v. Lowe, 114 U. S. 525, 5 Sup. Ct. 995, 29 
 L. Ed. 264 ; U. S. v. Cornell, 2 Mas. 60, Fed. 
 Cas. No. 14,867 ; People v. Godfrey, 17 Johns. 
 (N. Y.) 225; Mitchell v. Tibbetts, 17 Pick. 
 (Mass.) 298 ; Sinks v. Reese, 19 Ohio St. 306, 
 2 Am. Rep. 397 ; and hence the state cannot 
 condemn land within the ceded district; U. 
 S. v. Ames, 1 Woodb. & M. 76, Fed. Cas. No. 
 14,441; In re Opinion of the Justices, 1 
 Mete. (Mass.) 5S0. But when land has been 
 acquired by the United States without the 
 consent of the state, the state retains its ju- 
 risdiction and may act with respect to it, so 
 far as it does not interfere with the use of 
 the property by the United States ; Ft. Leav- 
 enworth R. Co. v. Lowe, 114 U. S. 525, 5 Sup. 
 
 Ct. 995, 29 L. Ed. 264; but whether in the 
 exercise of this jurisdiction there is included 
 the power of condemnation remains an open 
 question ; Nichols, Em. Dom. § 25. 
 
 The state may condemn for another public 
 use the land of an interstate railroad charter- 
 ed by congress if it does not interfere with its 
 operation ; Union Pac. Ry. Co. v. R. Co., 3 
 Fed. 106; Northern Pac. Ry. Co. v. Ry. Co., 
 3 Fed. 702 ; Union Pac. Ry. Co. v. R. Co., 29 
 Fed. 728. 
 
 A federal court may require proceedings 
 to condemn a crossing over a railroad, in the 
 hand of a receiver appointed by it, to be 
 brought within its jurisdiction ; Buckhan- 
 non & N. R. Co. v. Davis, 135 Fed. 707, 68 
 C. C. A. 345 ; and when the owner of the 
 land and the party seeking to condemn it are 
 citizens of the same state, the condemnation 
 proceedings may be begun in, or removed to, 
 the federal court ; Mississippi & R. River 
 Boom Co. v. Patterson, 98 U. S. 403, 25 L. 
 Ed. 206; Madisonville Traction Co. v. Min. 
 Co., 196 U. S. 239, 25 Sup. Ct. 251, 49 L. Ed. 
 462; Kansas City v. Hennegan, 152 Fed. 249 ; 
 Deepwater R. Co. v. Lumber Co., 152 Fed. 
 824; but it must follow the procedure of 
 the state statute; East Tennessee, Va. & 
 Ga. R. Co. v. Telegraph Co., 112 U. S. 306, 
 5 Sup. Ct. 168, 28 L. Ed. 746; Broadmoor 
 Land Co. v. Curr, 142 Fed. 421, 73 C. C. A. 
 537. 
 
 This right exists in the District of Colum- 
 bia, the territories, and lands within the 
 United States acquired through cession; 
 Shoemaker v. U. S., 147 U. S. 282. 13 Sup. 
 Ct. 361, 37 L. Ed. 170. 
 
 The power of eminent domain in the gen- 
 eral government as exercised for local pur- 
 poses in the District of Columbia is the same 
 as that exercised by a state within its own 
 territory ; Shoemaker v. U. S., 147 U. S. 282, 
 13 Sup. Ct. 361, 37 L. Ed. 170 ; there and in 
 the territories it exists in all cases in which 
 a similar power could be exercised by the 
 states; First Nat. Bank v. County of Yank- 
 ton, 101 U. S. 129, 25 L. Ed. 1046. It is 
 among the powers derived by the territorial 
 governments immediately from the United 
 States ; Swan v. Williams, 2 Mich. 427 ; Oury 
 v. Goodwin, 3 Ariz. 255, 26 Pac. 376; New- 
 comb v. Smith, 1 Chand. (Wis.) 71. 
 
 Within the states the United States has 
 the right of eminent domain for federal pur- 
 poses ; Kohl v. U. S., 91 U. S. 367, 23 L. 
 Ed. 449; Cherokee Nation v. Ry. Co., 135 
 U. S. 641, 10 Sup. Ct. 965, 34 L. Ed. 295. This 
 power has been exercised to condemn land 
 for military posts ; U. S. v. Chicago, 7 How. 
 (U. S.) 185, 12 L. Ed. 660; fortification; 
 Gilmer v. Lime Point, 18 Cal. 229; naviga- 
 tion work; King v. U. S., 59 Fed. 9; light- 
 house and coast survey purposes; Orr v. 
 Quimby, 54 N. H. 590 ; Chappell v. U. S., 160 
 U. S. 499, 16 Sup. Ct. 397, 40 L. Ed. 510; 
 the construction of interstate railroads ; Cali-
 
 EMINENT DOMAIN 
 
 1015 
 
 EMINENT DOMAIN 
 
 fornia v. R. Co., 127 U. S. 1, 8 Sup. Ct. 1073, 
 32 L. Ed. 150; water supply; Reddall v. 
 Bryan. 14 Md. 444, 74 Am. Dec. 550; post- 
 office ; Kohl v. U. S., 91 U. S. 367, 23 L. Ed. 
 449; Burt v. Ins. Co., 10G Mass. 35G, 8 Am. 
 Rep. 339; a national cemetery at Gettys- 
 burg ; U. S. v. Ry. Co., 160 U. S. 66S, 16 Sup. 
 Ct. 427, 40 L. Ed. 576. The weight of au- 
 thority is in favor of the exercise of the right 
 by the United States directly when property 
 is required for federal purposes and not 
 through the right of eminent domain of the 
 state; Reddall v. Bryan, 14 Md. 444, 74 Am. 
 Dec. 550; In re Appointment of United 
 States Commissioners, 96 N. Y. 227; though 
 the latter method is upheld in some cases; 
 r. S. v. Dumplin Island, 1 Barb. (N. Y.) 24; 
 Burt v. Ins. Co., 106 Mass. 356, 8 Am. Rep. 
 339; Orr v. Quimby, 54 N. H. 590; but it 
 is held that the United States may dele- 
 gate to a tribunal created under the laws 
 of the state the power to fix and determine 
 the amount of compensation to be paid by 
 the federal government for private property 
 taken by it in the exercise of the right of 
 eminent domain; U. S. v.. Jones, 109 U. S. 
 513, 3 Sup. Ct 346, 27 L. Ed. 1015. The 
 United States circuit court has jurisdiction 
 to entertain proceedings instituted by the 
 United States to appropriate land for a post- 
 office; Kohl v. U. S., 91 U. S. 367, 23 L. Ed. 
 449. In this case there was no act of con- 
 gress relating to the subject except the ap- 
 propriation of money, and a direction to the 
 secretary of the treasury to purchase a site, 
 and the jurisdiction was objected to. The 
 supreme court held that the proceedings were 
 a suit at law and cognizable under the gen- 
 eral provisions of the judiciary act. As to 
 the federal right, see Chattaroi Ry. Co. v. 
 Kinner, 14 Am. & Eug. R. R. Cas. 30; Kohl 
 v. U. S., 91 U. S. 367, 23 L. Ed. 449. The 
 state cannot condemn for the United States 
 and bind the latter as to compensation ; Peo- 
 ple v. Humphrey, 23 Mich. 471, 9 Am. Rep. 
 94, in which the whole subject of the exer- 
 cise of this right by state and federal gov- 
 ernments was considered by Cooley, J. Pro- 
 ceedings may be in the United States courts, 
 or in state courts, in the name of the United 
 States, and state practice should be follow- 
 ed ; In re Appointment of United States Com- 
 missioners, 96 N. Y. 227 ; Jones v. U. S., 48 
 Wis. 385, 4 N. W. 519; U. S. v. Jones, 109 
 U. S. 513, 3 Sup. Ct 346, 27 L. Ed. 1015; 
 or may by act of congress be made to follow 
 some state statute; Darlington v. U. S., S2 
 Pa. 382, 22 Am. Rep. 766. 
 
 Public uses of the federal government have 
 been held to be public uses of the state Red- 
 dall v. Bryan, 14 Md. 444, 74 Am. Dec. 550. 
 
 Proceedings under state laws for condem- 
 nation of lands, involving the ascertainment 
 by judicial proceedings of the value of prop- 
 erty to be paid as compensation, may be re- 
 moved to the United States court ; Searl v. 
 School Dist No. 2, 124 C. S. 197, S Sup. Ct. 
 
 460, 31 L. Ed. 415 ; Sugar Creek, P. B. & P. 
 O. R. Co. v. McKell. 75 Fed. 31; if they 
 take the form of a Lng before the 
 
 courts: Mississippi & l:. R. Boom Co. v. Pat- 
 terson, 9S U. S. 403, 25 L. Ed. 206; the pre- 
 liminary proceedings are in the nature of an 
 inquest and not a "suit," but when trai 
 red into the state court by appeal it bee 
 one; id.; Bastings Lumber Co. v. Garland, 
 115 Fed. 18, 52 C. C. A. 600. As to 
 of such proceedings, see 25 Am. L. k .-. l-::. 
 The l'oiccr of the .slates. The right at 
 eminent domain is also an attribute or Dart 
 of the sovereignty of the states, and Is by 
 them exercised for a great and constantly 
 increasing variety of purposes, some of which 
 are for governmental uses either of the state 
 at large or of local municipal bodies, or by 
 private persons or corporations authorized to 
 exercise some function of such public char- 
 acter, technically known as a public use. 
 
 It is also true that a state cannot con- 
 demn property within its borders for the 
 use of another state ; Kohl v. U. S., 91 U. S. 
 367, 23 L. Ed. 449; and a state statute is 
 constitutional which forbids a riparian own- 
 er from diverting the water of a river for 
 the use of a city in another state; Hudson 
 County Water Co. v. McCarter, 209 U. S. 
 349, 28 Sup. Ct. 529, 52 L. Ed. 828, 14 Ann. 
 Cas. 560; but a statute of one state author- 
 izing condemnation of a water supply for 
 use in a canal in another state was sus- 
 tained on the ground that the work was also 
 of great benefit to the former state; In re 
 Townsend, 39 N. Y. 171. 
 
 When the right of eminent domain is con- 
 ferred upon private persons' or corporations 
 the right is termed by some writers the dele- 
 gated power of eminent domain ; 4 Thomp. 
 Corp. ch. exxii. ; and such person or corpora- 
 tion is the agent of the state for its exercise. 
 Delegation of Power. The power may be 
 delegated; Brayton v. City of Fall River, 124 
 Mass. 95; but it can only be exercised by a 
 private individual or corporation by express 
 legislative authority. Minnesota Canal & 
 Power Co. v. Koochiching Co., 97 Minn. 429, 
 107 N. W. 405, 5 L. R. A. (N. S.) 638, 7 
 Ann. Cas. 1182; it may be conferred upon a 
 municipality for laying out and establishing 
 streets; St. Louis & S. F. R. Co. v. Fayette- 
 ville, 75 Ark. 534, 87 S. W. 1174 (but it is 
 not implied from a mere grant of authority 
 to establish new streets; Georgia R. & B. 
 Co. v. Mayor, etc.. of Union Point 119 Ga. 
 809, 47 S. E. IS", i ; constructing drains; 
 Hutchins v. Drainage Dist., 217 II!. 561, 7-" 
 N. E. 354; establishing water works; In re 
 Petition of Board of Water Com'rs of Vil- 
 lage of White Plains, 176 N. Y. 239, 68 X. E. 
 348; Pallas v. Hallock, 44 Or. 246, 75 Pac. 
 2(>-l; laying out parks and parkways; City 
 of Memphis v. Hastings, 113 Tenn. 1 !-. 86 
 S. W. »'-"'.>. 69 L. R. A. 750 (but a municipal 
 corporation cannot exercise the right beyond 
 its corporate limit without express legisla-
 
 EMINENT DOMAIN 
 
 1016 
 
 EMINENT DOMAIN 
 
 :ive authority; City of Puyallup v. Lacey, 
 43 Wash. 110, 86 Pac. 215) ; a railroad com- 
 pany for obtaining gravel and other ma- 
 terial ; Hopkins v. R. Co., 97 Ga. 107, 25 S. 
 E. 152; for building bridges and approaches 
 thereto; Southern I. & M. Bridge Co. v. 
 Stone, 174 Mo. 1, 73 S. W. 453, 63 L. R. A. 
 301 ; and tunnels ; McEwan v. R. Co., 72 N. 
 J. L. 419, 60 Atl. 1130. Railroad companies 
 may acquire a title in fee simple if the leg- 
 islature authorizes it to do so; Challiss v. 
 R. Co., 16 Kans. 117. A de facto railroad 
 corporation may exercise the right inasmuch 
 as Its legal existence can only be questioned 
 by the state in a direct proceeding for that 
 purpose; Reisner v. Strong, 24 Kans. 410. 
 
 Strictly speaking it is not accurate to say 
 that the state delegates a right of sovereign- 
 ty, of which it cannot divest itself, hence it 
 is more exact to speak of it as exercising 
 the power through an agent. While corpora- 
 tions are usually selected for such agency, 
 it may be and sometimes is conferred upon 
 individuals; Young v. Buckingham, 5 Ohio 
 485 ; Ash v. Cummings, 50 N. H. 591 ; Calk- 
 ing v. Baldwin, 4 Wend. (N. Y.) 667, 21 Am. 
 Dec. 16S; Moran v. Ross, 79 Cal. 159, 21 
 Pac. 833; and where incorporation and a 
 franchise were granted to an individual 
 "and associates" it was held that he need 
 not associate any one with him ; Day v. Stet- 
 son, 8 Greenl. (Me.) 365. It has also been 
 held that an individual as purchaser of a 
 railroad and franchises at the foreclosure 
 sale acquired the right to condemn lands; 
 Morgan v. Louisiana, 93 U. S. 217, 23 L. Ed. 
 860. In one case it is said that a statute 
 neither did nor could confer this right "upon 
 private persons, but only corporations organ- 
 ized for public purposes can be clothed with 
 such privileges;" Finney v. Somerville, 80 
 Pa. 59 ; but this expression, so far as it con- 
 cerns the power of the legislature, . was 
 obiter; and a case often cited with this only 
 decides that under a general act, then un- 
 der construction, the power could not be ex- 
 ercised by individuals, because there was 
 no provision of law for its exercise by in- 
 dividuals; Coe v. R. Co., 10 Ohio St. 372, 75 
 Am. Dec. 518. 
 
 The exercise of the power by such agen- 
 cies is governed in the main by the same 
 principles and limitations as when it is di- 
 rectly exerted by the federal or state govern- 
 ment, and the exceptions to this rule readily 
 disclose themselves in the consideration of 
 the natural divisions of the subject. When 
 its exercise by a private corporation is au- 
 thorized it has been termed not a franchise 
 but a means to the enjoyment of corporate 
 franchises; Coe v. R. Co., 10 Ohio St. 372, 
 75 Am. Dec. 518; but the contrary view was 
 expressed by Bradley, J., in California v. R. 
 Co., 127 U. S. 1, 8 Sup. Ct. 1073, 32 L. Ed. 
 150; "a power conferred upon certain cor- 
 porations, which is not possessed by the citi- 
 zens generally, and which is in derogation 
 
 of their rights, so nearly resembles a fran- 
 chise as to justify its treatment" under that 
 title ; 4 Thomp. Corp. § 5587. The use of the 
 term franchise is not defined, by those who 
 most use it, with sufficient precision to be 
 conclusive against either view. It is as 
 much a franchise, if one at all, if exercised 
 by an individual as a corporation, though 
 the writer quoted seems to overlook the pos- 
 sibility of this. It is, however, a grant of 
 power or privilege from the sovereign to 
 the citizen or subject, to do what would 
 but for the grant be unlawful, and it un- 
 doubtedly does come within the usually ac- 
 cepted definition of the word franchise (q. v.). 
 As is true with respect to franchises gener- 
 ally, the grant of the power is never presum- 
 ed unless the intent to part with it is clearly 
 expressed ; id. § 55SS ; Lewis, Em. Dom. § 
 240; Appeal of Pennsylvania R. Co., 93 Pa. 
 150; Butler v. Mayor, etc., of Thomasville, 
 74 Ga. 570 ; Schmidt v. Densmore, 42 Mo. 
 225 ; Chamberlain v. Steam Cordage Co., 41 
 N. J. Eq. 43, 2 Atl. 775; and its exercise by 
 the state may determine a preceding con- 
 tract made by the state without impairing 
 the obligation of such contract, the right 
 itself being always reserved by implication, 
 if not expressly ; Tait's Ex'r v. Central Luna- 
 tic Asylum, 84 Va. 271, 4 S. E. 697. 
 
 It is no objection to a grant of the power 
 to a corporation that the latter is seeking 
 to effect its own private gain; 4 Thomp. 
 Corp. § 5589; for that is said to be merely 
 compensation for the risk assumed for the 
 benefit of the public ; Concord R. R. v. Gree- 
 ly, 17 N. H. 47. When unrestrained by con- 
 stitutional provision, the discretion of the 
 legislature in selecting agents through whom 
 the power is to be exercised is absolute. In 
 a state whose constitution prohibits its exer- 
 cise by foreign corporations they cannot of 
 course act unless domesticated in the state; 
 St. Louis & S. F. R. Co. v. Foltz, 52 Fed. 627 ; 
 but otherwise they may do so; New York, 
 N. H. & H. R. Co. v. Welsh, 143 N. Y. 411, 
 38 N. E. 378, 43 Am. St. Rep. 734 ; New York 
 & E. R. Co. v. Young, 33 Pa. 175; Dodge v. 
 City of Council Bluffs, 57 la. 560, 10 N. W. 
 8S6; but a constitutional incapacity cannot 
 be avoided by acting through a domestic 
 corporation ; Koening v. R. Co., 27 Neb. 699, 
 43 N. W. 423 (see State v. Scott, 22 Neb. 
 628, 36 N. W. 121) ; though by consolidating 
 with a domestic corporation it may exercise 
 the power; Toledo, A. .A. & G. T. R. Co. v. 
 Dunlap, 47 Mich. 456, 11 N. W. 271; In re 
 St. Paul & N. P. R. Co., 36 Minn. 85, 30 N. 
 W. 432; as thereby the consolidated com- 
 pany becomes a corporation of the state; 
 Trester v. R. Co., 33 Neb. 171, 49 N. W. 1110. 
 
 Foreign Corporations. A state cannot con- 
 fer upon any corporation, public, quasi pub- 
 lic or private, the power to exercise the 
 right of eminent domain outside of its own 
 limits ; St, Louis & S. F. R. Co. v. Telegraph.
 
 IMMINENT DOMAIN 
 
 1017 
 
 EMINENT DOMAIN 
 
 Co., 121 Fed. 276, 58 C. C. A. 198 ; Chestatee 
 Pyrites Co. v. Mining Co., 119 Ga. 354, 40 S. 
 E. 422; 100 Am. St. Rep. 174; Helena Pow- 
 er Co. v. Spratt, 35 Mont. 108, 88 Pac. 773, 
 8 L. R. A. (N. S.) 507, 10 Ann. Cas. 1055; 
 Duke v. Cable Co., 71 S. C. 95, 50 S. E. 075 ; 
 but the fact that a corporation duly organ- 
 ized under the law of the state is subsidiary 
 to a foreign corporation does not affect its 
 right to exercise such power; Oregon Short 
 Line R. Co. v. Cable Co., Ill Fed. 842, 49 
 C. C. A. 003. A domesticated foreign corpo- 
 ration may, in the absence of constitutional 
 prohibition, be authorized by statute to ex- 
 ercise the power within a state; Columbus 
 Water Works Co. v. Long, 121 Ala. 245, 25 
 South. 702 ; Illinois State Trust Co. v. R. Co., 
 208 111. 419, 70 N. E. 357; Southern Illinois 
 & M. Bridge Co. v. Stone, 174 Mo. 1, 73 S. 
 W. 453, 03 L. R. A. 301 ; In re New York & 
 N. H. Co. (In re Marks) 53 Hun 633, 6 N. 
 Y. Supp. 105; Abbott v. Railroad, 145 Mass. 
 450, 15 N. E. 91 ; New York & Erie R. Co. v. 
 Young, 33 Pa. 175 ; or the district of Alaska ; 
 St. Louis & S. F. R. Co. v. Telephone & Tele- 
 graph Co., 121 Fed. 270, 5S C. C. A. 19S. 
 
 Statutes conferring the power of eminent 
 domain are to be construed strictly; God- 
 dard v. Ry. Co., 202 111. 362, 66 N. E. 1006; 
 Chesapeake & O. Ry. Co. v. Walker, 100 Va. 
 69, 40 S. E. 033, 914 ; State v. Superior Court 
 for Chelan County. 36 Wash. 381, 78 Pac. 
 1011; City of Puyallup v. Lacey, 43 Wash. 
 110, 86 Pac. 215; aliter, Petersburg School 
 Dist. v. Peterson, 14 N. D. 344, 103 N. W. 
 756. 
 
 The power can only be delegated for a 
 public use ; People v. R. Co., 2 McCarty, Civ. 
 Pro. (N. Y.) 345; a statute authorizing a 
 telegraph company to construct, maintain, 
 and operate its lines over and along any 
 military or post road of the United States 
 does not confer authority to condemn a right 
 of way over private property ; Western Un- 
 ion Telegraph Co. v. R. Co., 195 U. S. 540, 
 25 Sup. Ct. 133, 49 L. Ed. 312, 1 Ann. Cas. 
 517; land may be taken for a private road 
 if it is open to the public; County of Madera 
 v. Granite Co., 139 Cal. 128, 72 Pac. 915; 
 the laying out of private roads may be au- 
 thorized ; Dickinson Township Road, 23 Pa. 
 Super. Ct. 34; contra, Beaudrot v. Murphy, 
 53 S. C. 118, 30 S. E. 825 ; Varner v. Martin, 
 21 W. Va. 534. 
 
 How the Question of Public Use is Deter- 
 mined. It is well settled that the power ex- 
 ists only in cases where the public exigency 
 demands its exercise. See remarks of Wood- 
 bury, J., and cases cited by him in West Riv- 
 er Bridge Co. v. Dix, 6 How. (U. S.) 545, 
 12 L. Ed. 535. But the practice of all the 
 states and of the federal government, since 
 this decision, in condemning land for pur- 
 poses of public convenience but not neces- 
 sity, has been so frequent that the legislative 
 control over the necessity and the particular 
 
 location is almost universally conceded. 
 Mills, Em. Dom. § 11 ; Nichols, Em. Dom. ch. 
 liii. In a proceeding to condemn land, the 
 term "necessary" does not mean that it is 
 indispensable or Imperative, but only that it 
 is convenient and useful; and if an improve- 
 ment is useful, and a convenience and bene- 
 fit to the public sufficient to warrant tin- ex- 
 pense in making it, then it is necessary; 
 Com'rs of Parks and Boulevards of City of 
 Detroit v. Moesta, 91 Mich. 149, 51 N. W. 
 903; but it is no ground for a right to take 
 land that its resources could be utilized at a 
 much less expense than the land already 
 owned; Spring Valley Water Works v. San 
 Mateo Water Works. 64 Cal. 123, 28 Pae. 
 447. In 4 Thomp. Corp. § 5593, in concluding 
 a discussion of the various theories as to 
 what uses are public uses, the author says: 
 "But it is a sound conclusion that the use 
 must be a public use in the sense that it is 
 open to such members of the public as may 
 choose to use it upon the performance of 
 reasonable or proper conditions ; or in the 
 sense of satisfying a great public want or 
 exigency. On the other hand, where the 
 public use is not compulsory, but is optional 
 with the private corporation seeking the 
 condemnation, it is not a public use." In 
 U. S. v. Ry. Co., 100 U. S. 608. 16 Sup. 
 Ct. 427, 40 L. Ed. 576, it was said: "The 
 constitution provides that private proper- 
 ty shall not be taken for public uses with 
 out just compensation. These words are a 
 limitation, the same in effect as 'Yon shall 
 not exercise this power except for public 
 use.' " 
 
 The legislature cannot so determine that 
 the use is public as to make its determina- 
 tion conclusive on the courts, and the ex- 
 istence of a public use in any class of cases 
 is a question for the courts ; Tyler v. Readi- 
 er, 44 Vt. 048. 8 Am. Rep. 39S; Varner v. 
 Martin, 21 W. Va. 534 ; McQuillen v. Hatton. 
 42 Ohio St. 202; New Central Coal Co. v. 
 George's Creek Coal & Iron Co., 37 Md. 537 ; 
 Consolidated Channel Co. v. R. Co., 51 Cal. 
 269; Sadler v. Langham, 34 Ala. 311. 
 
 The Missouri constitution provides, as do 
 those of Colorado, Mississippi, and Washing- 
 ton, that it shall be 'a judicial question 
 whether the use contemplated is public, and 
 that question will be determined without the 
 aid of a jury; City of Savannah v. Hancock, 
 91 Mo. 54, 3 S. W. 215. 
 
 The Massachusetts Bill of Rights uses the 
 term "public exigency" and the existence of 
 one was said by Shaw, C. J., to be made by 
 implication a prerequisite: Harback v. City 
 of Boston, 10 Cush. (Mass.) 295. There is 
 a similar provision in Maine, and in both 
 states the rule making the necessity a legis- 
 lative question is followed as in other states ; 
 Lynch v. Forbes, 101 Mass. 302. 37 N. E. 
 437, 42 Am. St. Rep. 402; Hayford v. City of 
 Bangor, 102 Me. 340, 66 Atl. 731, 11 L. R. A.
 
 EMINENT DOMAIN 
 
 1018 
 
 EMINENT DOMAIN 
 
 ( X. S.) 940. The .Michigan constitution re- 
 quires the necessity of all takings, except 
 by the state, to be determined by a jury, and 
 in Wisconsin a similar provision applies to 
 condemnation by municipal corporations. 
 
 The presumption is in favor of the public 
 character of a use declared so by the legis- 
 lature ; Appeal of Edgewood R. Co., 79 Pa. 
 257 ; Varner v. Martin, 21 W. Va. 534 ; and 
 unless it is clear that it is not possible for 
 the use to be public, the courts cannot inter- 
 fere; Mills, Em. Dom. § 10. 
 
 In an early case it was said that in general the 
 question whether a particular structure, as a bridge, 
 or a lock, canal, or road, is for the public use, is a 
 question for the legislature, and it may be pre- 
 sumed to have been decided by them ; Hazen v. 
 Essex Co., 12 Cush. (Mass.) 475 ; citing Com. v. 
 Breed, 4 Pick. (Mass.) 463; but in a later case when 
 this position was broadly urged, it was held to be 
 obviously untenable, and that, where the power was 
 exercised, it necessarily involved an inquiry into 
 the rightful authority of the legislature under the 
 organic law, and that the legislature had no power 
 to determine finally upon the extent of its authority 
 over private rights ; Talbot v. Hudson, 16 Gray 
 (Mass.) 417. In this case what is probably the true 
 doctrine was stated, that it is the duty of the courts 
 to make all reasonable presumptions in favor of the 
 validity of the legislative act. But this is simply 
 the application to this particular subject of the gen- 
 eral presumption of the constitutionality of legis- 
 lative acts. 
 
 This right of the courts to determine the 
 question of public use was maintaiued in In 
 re Niagara Falls & W. Ry. Co., 108 N. Y. 375, 
 15 N. E. 429 ; but if the court determine the 
 matter in question to be a public use, their 
 power is exhausted and the extent to which 
 property shall be taken for it is wholly in 
 the legislative discretion ; Shoemaker v. U. 
 S., 147 U. S. 282, 13 Sup. Ct. 361, 37 L. Ed. 
 170. Whether the necessity exists for tak- 
 ing the property is a legislative question ; 
 Lynch v. Forbes, 161 Mass. 302, 37 N. E. 437, 
 42 Am. St. Rep. 402. 
 
 The grant of the right is a determination 
 on the part of the legislature that the object 
 is necessary; Central R. Co. of New Jersey 
 v. R. Co., 31 N. J. Eq. 475 ; and of this it is 
 the judge ; Tracy, etc., v. R. Co., 80 Ky. 259 ; 
 In re Application of Jacobs, 98 N. Y. 109, 50 
 Am. Rep. 636; North Missouri R. Co. v. 
 Gott, 25 Mo. 540 ; and parties cannot be 
 heard on the question of necessity ; Holt v. 
 City Council of Somerville, 127 Mass. 408. 
 If it is a public use there is no restraint on 
 legislative discretion and the judicial func- 
 tion is gone ; Mills, Em. Dom. § 11. If the 
 use is certainly public courts will not inter- 
 fere ; only, when there is an attempt to evade 
 the law and procure condemnation for pri- 
 vate uses will courts declare it void; Mills, 
 Ein. Dom. § 11 ; Baltimore & O. R. Co. v. R. 
 Co., 17 W. Va. 812. The fact that a rail- 
 road has located its line across certain land, 
 is prima facie proof that it is necessary 
 for it to take that land for the use of its 
 road; O'Hare v. R. Co., 139 111. 151, 28 N. 
 E. 923. Whether the land is reasonably 
 
 required is a question of fact to be de- 
 termined by the court or jury, and the 
 burden of proof is on the plaintiff; Spring 
 Valley Water Works v. Drinkhouse, 92 Cal. 
 528, 28 Pac. 681. 
 
 It has been held that when under the con- 
 stitution a federal question arises, the su- 
 preme court will determine the law without 
 reference to state decisions; Ohio Life Ins. 
 & Trust Co. v. Debolt, 16 How. (U. S.) 432, 
 14 L. Ed. 997. See Olcott v. Fond du Lac 
 County, 16 Wall. (U. S.*» 678, 21 L. Ed. 382; 
 People v. 'Batchellor, 53 N. Y. 128, 13 Am. 
 Rep. 480. But in determining what is a tak- 
 ing of property, the federal courts will ac- 
 cept the definition of the word property by 
 the state court, where it is clearly settled ; 
 Pumpelly v. Canal Co., 13 Wall. (U. S.) ICG, 
 20 L. Ed. 557; D. M. Osborne & Co. v. R. 
 Co., 147 U. S. 248, 13 Sup. Ct. 299, 37 L. Ed. 
 155 ; Barney v. Keokuk, 94 U. S. 324, 24 L. 
 Ed. 224; Yates v. Milwaukee, 10 Wall. (XL 
 S.) 497, 19 L. Ed. 9S4 ; even following re- 
 versals by the latter; Leffingwell v. Warren, 
 2 Black. (U. S.) 599, 17 L. Ed. 261; Green v. 
 Neal, 6 Pet. (U. S.) 291, 8 L. Ed. 402; Olcott 
 v. Fond du Lac County, 16 Wall. (U. S.) 
 678, 21 L. Ed. 3S2. 
 
 What is a Public Use. There has not 
 been and probably never will be a satis- 
 factory comprehensive definition of the 
 term "public use." There is a fundamen- 
 tal difficulty in framing one, arising from 
 the double meaning of the word "use." It 
 may be either employment or advantage, and 
 courts have divided in resting their efforts 
 at a definition upon either one or the other 
 of these terms. The subject is discussed at 
 length and the cases examined in Nichols, 
 Em. Dom. §§ 206-211, and the conclusion of 
 this author is that neither view as based up- 
 on the words mentioned, is entirely satisfac- 
 tory or sufficiently broad to justify taking 
 land for all the purposes for which it has 
 been permitted. 
 
 Property taken for public use need not be 
 taken by the public as a body into its direct 
 possession, but for public usefulness, utility, 
 or advantage, or purposes productive of gen- 
 eral benefit or great advantage to the com- 
 munity ; Olmstead v. Camp, 33 Conn. 532, 
 S9 Am. Dec. 221. It is not necessary that 
 the entire community, or any considerable 
 portion of it, should participate in an im- 
 provement to constitute a public use; Tal- 
 bot v. Hudson, 16 Gray (Mass.) 417; County 
 Court of St. Louis County v. Griswold, 58 
 Mo. 175 ; it may be limited to the inhabitants 
 of a small locality; but the benefit must be 
 in common, not to particular persons or es- 
 tates; Gilmer v. Lime Point, 18 Cal. 229. 
 See Mills, Em. Dom. § 12. If a considerable 
 number will be benefited the use is public ; 
 Riche v. Water Co., 75 Me. 91 ; Ross v. Da- 
 vis, 97 Ind. 79 ; as a school available for use 
 by a portion of the community taxed to pay
 
 EMINENT DOMAIN 
 
 1019 
 
 EMINENT DOMAIN 
 
 for the property taken ; Williams v. School 
 Dist, 33 Vt. 271. 
 
 The legislature determines the number of 
 people to be benefited to make the use pub- 
 lic ; Aldridge v. R. Co., 2 Stew. & P. (Ala.) 
 109, 23 Am. Dec. 307; but the incidental ben- 
 efit of additional facilities for business, etc., 
 will not make use public; In re Eureka 
 Basin Warehouse & Mfg. Co. of Long Island, 
 Ofi N. Y. 42. 
 
 It was formerly considered that a public 
 use must be for material needs, and not 
 mere aesthetic gratification; Nichols, Em. 
 Dom. § 232, citing Bynk. Jur. Pub. lib. ii. e. 
 15; Boston & R. Mill Dam Corp. v. Newman, 
 12 Pick. (Mass.) 407, 480, 23 Am. Dec. 662; 
 Town of Woodstock v. Gallup, 28 Vt. 587; 
 but this doctrine has been practically aban- 
 doned ; Nichols, Em. Dom. § 232 ; Attorney 
 General v. Williams, 174 Mass. 47G, 55 N. E. 
 77, 47 L. R. A. 314. 
 
 It has been judicially decided that the fol- 
 lowing are public uses: an almshouse; Hey- 
 ward v. City of New York, 7 N. Y. 314; a 
 public bath ; Poillon v. City of Brooklyn, 101 
 N. Y. 132, 4 N. E. 191; a schoolhouse; Reed 
 v. Inhabitants of Acton, 117 Mass. 384 ; Wil- 
 liams v. School Dist., 33 Vt. 271 ; Peckham 
 v. School Dist, 7 R. I. 545 ; Township Board 
 of Education v. Hackmann, 4S Mo. 243; Long 
 v. Fuller, 08 Pa. 170; a market; In re Coop- 
 er, 28 Hun (N. Y.) 515; Henkel v. City of 
 Detroit, 49 Mich. 249, 13 N. W. 611, 43 Am. 
 Rep. 4G4; telegraph and telephone lines; 
 Lockie v. Telegraph Co., 103 111. 401; State 
 v. Telephone Co., 53 N. J. L. 341, 21 Atl. 460, 
 11 L. R. A. 664; Pierce v. Drew, 136 Mass. 
 75, 49 Am. Rep. 7 ; New Orleans, M. & T. R. 
 Co. v. Telegraph Co., 53 Ala. 211; Spring 
 Valley Water Works v. Drinkhouse, 92 Cal. 
 528, 2S Fac. 6S1 ; water-works for a town; 
 Bailey v. Inhabitants of Woburn, 126 Mass. 
 416; Lake Pleasanton Water Co. v. Water 
 Co., 67 Cal. 659, 8 Pac. 501; water supply 
 for a town ; Burden v. Stein, 27 Ala. 104, 
 62 Am. Dec. 758; Martin v. Gleason, 139 
 Mass. 1S3, 29 N. E. 664; Cheyney v. Water 
 Works Co., 55 N. J. L. 235, 26 Atl. 95 ; Long 
 Island Water Supply Co. v. Brooklyn, 166 U. 
 S. 685, 17 Sup. Ct. 718, 41 L. Ed. 11 ('.5; City 
 of Chicago v. Smith, 204 111. 356, 68 N. E. 
 395; Denver Power. & Irr. Co. v. R. Co., 30 
 Colo. 204, 09 Pac. SOS, 60 L. R. A. 383 (but 
 not where the creation of a water power and 
 plant is for the purpose of supplying power 
 for private enterprises; Berrien Springs Wa- 
 ter-Power Co. v. Circuit Judge, 133 Mich. 48, 
 94 N. W. 379, 103 Am. St. Hep. 438; .Minne- 
 sota Canal & Power Co. v. Koochiching Co., 
 97 Minn. 429, 107 N. W. 405, 5 L. R. A. (N. 
 S.i 638, 7 Ann. Cas. 11S2; Peifly v. Water 
 Supply Co., 214 Pa. 340, 03 Atl. 751) ; the im- 
 provement of the navigation of a river; Ila- 
 zen v. Essex County, 12 Cush. (Mass.) 17".; 
 and the creation of a wholly artificial sys- 
 tem of navigation by canals; id.; Chesa- 
 
 peake & O. Canal Co. v. Key. 3 Cra. C. C. 
 599, Fed. Cas. No. 2,649; Water Works Co. 
 of Indianapolis v. I '.ink hart, 41 Ind. 
 In re Townsend, 30 x. y. 171; drai 
 Willson v. Marsh Co., 2 Pet. (U. 
 L. Ed. 412; Cleveland, C, O. & St. L. Ky. 
 Co. v. Drainage Dist.. 213 111. 83, 7l! X. B. 
 684; sisson v. Board of Sup'ra of Bueni 
 ta County, 128 la. 4412, 104 X. \v. 
 R. A. 440; contra, Xickey v. Stearns fi 
 os Co., 126 Cal. 150, 58 Pac. 459; 11 
 Thomas, 110 Mass. 583; Anderson v. B 
 98 Ind. 587; sewers; Ilildreth v. (' 
 Lowell, 11 Gray (Mass.) 31.".; wharves; Cur- 
 ran v. City of Louisville. 83 Ky. 628; Kings- 
 land v. City of New York. 110 X. Y. 569, 18 
 N. E. 435; In re City of New York, 135 X. 
 Y. 253, 31 N. E. 1043, 31 Am. St. Rep. 
 ferries; Day v. Stetson, 8 Greenl. (Me.) ::•'.."; 
 Stark v. McGowen, 1 X. ,1 McC. (S. C.) 387; 
 irrigation; Umatilla Irr. Co. v. Barnhart, 22 
 Or. 3S0, 30 Pac. 37; Lux v. Haggin, 09 Cal. 
 255, 4 Pac. 919, 10 Pac. 074; Fallhrook Irr. 
 Dist. v. Bradley, I'M U. S. 112, 17 Sup. Ct. 
 56, 41 L. Ed. 309; Gutierres v. Land & Irr. 
 Co., 188 r. s. 545, 23 Sup. ct. 338, -17 L. Ed. 
 588; Clark v. Nash, 198 U. S. 361, 25 Sup. 
 Ct. 070, 49 L. Ed. 10S5, 4 Ann. Cas. 1171; 
 Borden v. Irr. Co., 204 U. S. 007, 27 Sup. Ct. 
 785, 51 L. Ed. 071; Irrigation Co. v. Klein, 
 63 Kan. 484, 65 Pac. 684; Prescott Irr. Co. v. 
 Flathers, 20 Wash. 454, 55 pac. 035; levees; 
 Missouri, K. & T. Ry. Co. v. Cambern, 06 
 Kan. 365, 71 Pac. S09 ; forts, armories or 
 arsenals; Kohl v. U. S., 91 U. S. 367, 23 I.. 
 Ed. 449 ; U. S. v. Fox, 94 U. S. 315, 24 L. Ed. 
 192; Gilmer v. Lime Point, 18 Cal. 220; navy 
 yards; In re League Island, 1 Brewst. (Pa.) 
 524; military camps; Morris v. Comptroller, 
 54 N. J. L. 268, 23 Atl. 604; turnpikes; In re 
 Mount Washington Road Co., 35 X. II. 134; 
 State v. Maine, 27 Conn. 641, 71 Am. Dec. 
 89 ; bridges ; Young v. Buckingham, 5 Ohio 
 4S5; In re Towanda Bridge Co.. 91 Pa. 216; 
 Young v. McKenzie, 3 Ga. 31; Crosby v. Han- 
 over, 36 N. H. 404; Palmer v. State, Wright 
 (Ohio) 364; the criterion being, whether the 
 public may use by right, or only by permis- 
 sion, and not to whom the tolls are paid: 
 Arnold v. Bridge Co., 1 Duv. (Ky.) 372; 
 cemeteries; Edgecumbe v. City of Burling- 
 ton, 46 Vt. 218; Balch v. County Com'rs, 103 
 Mass. 106; Edwards v. Cemetery Ass'n, 20 
 Conn. 466; even if the price of the lots there- 
 in differ; Evergreen Cemetery Ass'n of New 
 Haven v. Beecher. ."-:'. Conn. 551, 5 Atl. 353; 
 but not if used exclusively for members of a 
 private corporation; In re Deans ville 
 etery Ass'n. 66 x. Y. 569, 23 Am. Rep. 86; 
 a restaurant at a summer resorl ; Pr< 
 Park & C. I. R. Co. v. Williamson, mi x. Y. 
 552; parks; city of Lexington v. Assembly, 
 111 Ky. 781, 71 S. W. 943; In re .Mayor, etc., 
 of City of New York, 99 X. Y. 569, 2 X. E3. 
 642; Kansas City v. Ward. 134 Mo. 172, 35 
 S. W. 000; Holt v. City Council, 127 Mass.
 
 EMINENT DOMAIN 
 
 1020 
 
 EMINENT DOMAIN 
 
 408 ; Gilman v. City of Milwaukee, 55 Wis. 
 328, 13 N. W. 2GG; Cook v. South Park 
 Com'rs, 61 111. 115; Kerr v. South Park, 117 
 J. S. 379, 6 Sup. Ct. SOI, 29 L. Ed. 924; Shoe- 
 maker v. U. S., 147 U. S. 2S2, 13 Sup. Ct. 361, 
 37 L. Ed. 170 ; even if paid for by a county, 
 though beneficial only or mainly to a neigh- 
 boring city; St. Louis County Court v. Gris- 
 wold, 58 Mo. 175; acquiring private proper- 
 ty within 200 feet of city parks and park- 
 ways in order to protect the same by resale 
 in fee for private use ; Penna. Mut. Life 
 Ins. Co. v. Philadelphia, 22 Pa. Dist. R. 195, 
 per Sulzberger, J. ; the erection of a memorial 
 hall or monumental statues, arches, and the 
 like, the publication of town histories, dec- 
 orations on public buildings, parks designed 
 to provide for fresh air or recreation, edu- 
 cate the public taste, or inspire patriotism ; 
 Kingman v. City of Brockton, 153 Mass. 255, 
 26 N. E. 998, 11 L. R. A. 123. As to play- 
 grounds, or places of public recreation, the 
 law is not fully settled ; Nichols, Em. Dom. 
 § 234 ; it was held not valid for a theatre ; 
 Sug'ar v. City of Monroe, 108 La. 677, 32 
 South. 961, 59 L. R. A. 723; or a private 
 right of fishing in an island pond to provide 
 for fishing as a pastime; Albright v. Park 
 Commission, 71 N. J. L. 303, 57 Atl. 398, 69 
 L. R. A. 768, 108 Am. St. Rep. 749, 2 Ann. 
 Cas. 48. 
 
 Restrictions on the height of buildings, 
 wbile valid under the police power ; Welch 
 v. Swasey, 193 Mass. 364, 79 N. E. 745, 23 
 L. R. A. (N. S.) 1160, 118 Am. St Rep. 523; 
 have been also upheld to prevent disfiguring 
 the surroundings, when compensation is 
 made; Attorney General v. Williams, 174 
 Mass. 476, 55 N. E. 77, 47 L. R. A. 314, af- 
 firmed Williams v. Parker, 188 U. S. 491, 
 23 Sup. Ct. 440, 47 L. Ed. 559; American 
 Unitarian Ass'n v. Com., 193 Mass. 470, 79 
 N. E. 878; but not otherwise; Nichols, Em. 
 Dom. § 235, giving cases. 
 
 A highway is a public use; Dronberger v. 
 Reed, 11 Ind. 420 ; Haverhill Bridge Propri- 
 etors v. Commissioners, 103 Mass. 120, 4 Am. 
 Rep. 518; but it must connect with another 
 highway; In re Niagara Falls & W. Ry. Co., 
 108 N. Y. 375, 15 N. E. 429; Moore v. Rob- 
 erts, 64 Wis. 538, 25 N. W. 564; Appeal of 
 Waddell, 84 Pa. 90 ; though at one end only ; 
 Schatz v. Pfeil, 56 Wis. 429, 14 N. W. 628; 
 Peckham v. Town of Lebanon, 39 Conn. 231 ; 
 People v. Kingman, 24 N. Y. 559. It may, 
 however, terminate on private property ; At- 
 kinson v. Bishop, 39 N. J. L. 226; Sheaff v. 
 People, 87 111. 189, 29 Am. Rep. 49 ; Goodwin 
 v. Town of Wethersfield, 43 Conn. 437 ; or at 
 a river; Moore v. Auge, 125 Ind. 562, 25 N. 
 E. 816 ; or at a church ; West Pikeland Road, 
 63 Pa. 471. So the improvement of a harbor 
 is a public use, (but not the extension of 
 harbor lines to prevent the placing of build- 
 ings on either side of a bridge) ; Farist Steel 
 Co. v. City of Bridgeport, 60 Conn. 278, 22 
 
 Atl. 561, 13 L. R. A. 590; and the reclama- 
 tion of flat land ; 1 Thayer, Cas. Const. L. 
 1025, n. citing cases. Gas works ; Bloomfield 
 & R. Nat Gaslight Co. v. Richardson, 63 
 Barb. (N. Y.) 437; Appeal of Pittsburgh, 
 123 Pa. 374, 16 Atl. 621 ; Providence Gas Co. 
 v. Thurber, 2 R. I. 15, 55 Am. Dec. 621; a 
 state military encampment; State v. Heppen- 
 heimer, 54 N. J. L. 268, 23 Atl. 664; a public 
 urinal; Badger v. City of Boston, 130 Mass. 
 170, are public uses. So has been held the 
 production of electric power or light; Story 
 v. Power Co., 106 Ind. 316, 76 N. E. 1057; 
 Minnesota C. & P. Co. v. Koochiching Co., 
 97 Minn. 429, 107 N. W. 405, 5 L. R. A. (N. 
 S.) 638, 7 Ann. Cas. 11S2; In re East Canada 
 Creek Electric L. & P. Co., 49 Misc. 565, 99 
 N. Y. Supp. 109 ; In re Niagara, L. & O. Pow- 
 er Co., Ill App. Div. 686, 97 N. Y. Supp. 853 ; 
 Rockingham County L. & P. Co. v. Hobbs, 72 
 N. H. 531, 58 Atl. 46, 66 L. R. A. 581 ; Jones 
 v. Electric Co., 125 Ga. 618, 54 S. E. 85, 6 
 L. R. A. (N. S.) 122, 5 Ann. Cas. 526; though 
 some courts have doubted whether the trans- 
 mitting of water power into electricity was 
 such a public use as would warrant the ex- 
 ercise of the right of eminent domain ; State 
 v. Power Co., 39 Wash. 64S, 82 Pac. 150, 2 L. 
 R. A. (N. S.) 842, and note, 4 Ann Cas. 987; 
 Minnesota Canal & P. Co. v. Koochiching Co., 
 97 Minn. 429, 107 N. W. 405, 5 L. R. A. (N. 
 S.) 638, 7 Ann. Cas. 1182. A department 
 store is not a public use ; Townsend v. Ep- 
 stein, 93 Md. 537, 49 Atl. 629, 52 L. R. A. 
 409, 86 Am. St. Rep. 441 ; and see Hatfield v. 
 Straus, 189 N. Y. 208, 82 N. E. 172. 
 
 Other instrumentalities of commerce held 
 to be public uses are, pipe lines for the trans- 
 portation of oil or natural gas ; W. Va. Transp. 
 Co. v. Coal Co., 5 W. Va. 382; City of La 
 Ilarpe v. Power Co., 69 Kan. 97, 76 Pac. 448; 
 City of Rushville v. Gas Co., 132 Ind. 575, 
 28 N. E. 853, 15 L. R. A. 321; Charleston 
 Nat. Gas Co. v. Lowe, 52 W. Va. 662, 44 S. 
 E. 410 ; dams for booms used in logging ; 
 Patterson v. Boom Co., 3 Dill 465, Fed. Cas. 
 No. 10,829; Lawler v. Baring Boom Co., 56 
 Me. 443; Schoff v. Imp. Co., 57 N. H. 110; 
 Maffet v. Quine, 93 Fed. 347 ; contra, Brews- 
 ter v. Rogers Co., 169 N. Y. 73, 62 N. E. 164, 
 58 L. R. A. 495; Matthews v. Mfg. Co., 35 
 Wash. 662, 77 Pac. 1046 ; see also Mississippi 
 & R. R. Boom Co. v. Patterson, 98 U. S. 403, 
 25 L. Ed. 206 ; Weaver v. Boom Co., 28 Minn. 
 534, 11 N. W. 114; Appeal of Bennett's 
 Branch Imp. Co., 65 Pa. 242 ; a flume for the 
 transportation of lumber; Dallas Lumbering 
 Co. v. Urquhart, 16 Or. 67, 19 Pac. 7S. As 
 to the condemnation of land to facilitate 
 mining operations there is a conflict of deci- 
 sions. In some of the states the courts have 
 refused to permit it; Amador Queen Min. 
 Co. v. Dewitt, 73 Cal. 482, 15 Pac. 74; Ap- 
 peal of Waddell, 84 Pa. 90; Woodruff v. 
 Min. Co., 18 Fed. 753; while in others 
 they have considered it justifiable on the
 
 EMINENT DOMAIN 
 
 1021 
 
 EMINEN'J DOMAIN 
 
 ground of public utility; Hand Gold Min. 
 Co. v. Parker, 59 Ga. 419; Overman Silver 
 Min. Co. v. Corcoran, 15 Nev. 147; and the 
 owner of a mine may have land condemned 
 for a railroad for the transportation of the 
 products of his mine to the nearest thorough- 
 fare by rail or water, provided such a rail- 
 way shall be free to all who wish to use it ; 
 Hays v. Risher, 32 Pa. 169; Hibernia Un- 
 derground R. Co. v. De Camp, 47 N. J. L. 
 518, 1 Atl. 318, 54 Am. Rep. 197; New Cen- 
 tral Coal Co. v. Coal & Iron Co., 37 Md. 537; 
 Colorado E. R. Co. v. R. Co., 41 Fed. 294; 
 and this latter provision will be implied from 
 the statute authorizing the condemnation ; 
 Phillips v. Watson. 63 la. 28, 18 N. YV. 659; 
 but it has been held that a mine-owner can- 
 not condemn land solely for the transporta- 
 tion of his own products; Appeal of Stewart, 
 56 Pa. 413; Appeal of McCandless, 70 Pa. 
 210; Shell v. Coal Co., 118 111. 427, 10 N. E. 
 1!)!). 59 Am. Rep. 379; State v. R. Co., 40 
 Ohio St. 504; or to take water to the mines; 
 Lorenz v. Jacob, 63 Cal. 7".. 
 
 The right to condemn land for mill sites 
 has been frequently granted; IlanUins v. 
 Laurence, 8 Blackf. (Ind.) 2G6 ; Harding v. 
 Goodlett, 3 Yerg. (Tenn.) 41, 24 Am. Dec. 
 546; Boston & R. Mill Dam. Corp. v. New- 
 man, 11' Pick. (Mass.) 407, 23 Am. Dec. 622 ; 
 Inhabitants of Andover v. Sutton. 12 Mete. 
 (Mass. i 182; Tyler v. Beacher, 44 Vt. 648, 
 8 Am. Rep. 398; Olmstead v. Camp, 33 
 Conn. 532, 89 Am. Dec. 221. In the last case 
 it was urged that it was against public poli- 
 cy to allow such great agencies as streams 
 capable of propelling machinery to go to 
 waste, and that to utilize such power, even 
 for the erection of private mills, promotes 
 the wealth of the state and is of incidental 
 benefit to the people. But although courts 
 have recognized this right to a certain ex- 
 tent; Holyoke Co. v. Lyman, 15 Wall. (U. 
 S.) 500, 21 L. Ed. 133, it has been with re- 
 luctance and it will not now probably be 
 sustained ; Mills, Em. Dom. § 15 ; it has been 
 doubted; Towers v. Bears, 12 Wis. 213, 78 
 Am. Dec. 733; and by some denied; Jordan 
 v. Woodward, 40 Me. 317; Hay v. Cohoes 
 Co., 3 Barb. (N. Y.) 42; Sadler v. Langham, 
 34 Ala. 311; Ryerson v. Brown. 35 Mich. 333, 
 24 Am. Rep. 504 ; in which, after reviewing the 
 authorities, Judge Cooley holds the question 
 not one of necessity but of comparative cost. 
 A general statute, delegating to individuals 
 the power to condemn land and locate mills. 
 was held unconstitutional; Loughbridge v. 
 Harris, 42 Ga. 500. See generally as to the 
 exercise of the power in aid of private en- 
 terprises, including mining, mills, etc., in- 
 cluding an historical review of the cases, 
 Nichols, Em. Dom. ch. xliv, §§ 236-254. 
 
 A railroad is a public use; Cherokee Na- 
 tion v. By. Co.. 135 U. S. 011, 10 Sup. Ct. 
 965, 34 L. Ed. 295; Whiteman's Kx'x v. R. 
 Co., 2 Harring. (Del.) 511. 3:; Am. Dec. 411; 
 Swan v. Williams, 2 Mich. 427; In re Long 
 
 Island R. Co., 113 N. Y. 07, 37 N. E. 
 even whcr. ; used for freight only; State v. 
 R. Co., 47 N. J. L. 43; bo also are all appur- 
 tenances essential to the reasonabli 
 ent, and proper construction, maintei 
 and operation of the road, such as yard- 
 room; Bldridge v. Smith, 34 Vt. 4S4 ; and 
 terminals; Spofford v. R, Co., 66 Mi 
 turnouts, engine-houses, depo turn- 
 
 tables; Chicago, B. & Q. R. Co. v. Y. 
 17 HI. 123; Giesy v. R. Co., 4 Ohi< 
 and repair shops, stock-yards ; I 
 Stock-Yards Co. v. Keith. L39 D. S. IS 
 Sup. Ct 409, 35 L. Ed. 73; Hannibal & St. 
 J. B. Co. v. Muder, 49 Mo. 165; pain: 
 lumber, and timber sheds; Low v. 1: 
 IS 111. 324; wharves; In re New York Cent, 
 ft II. R. <'o., 77 N. Y. 248; a place of d< 
 for waste earth; Lodge v. B. Co.. S Phila. 
 (Pa. i 345; but not shops for manufacturing 
 new rolling stock ; New York &. II. R. Co. v. 
 Kip, 40 N. Y. 540, 7 Am. Rep. 385; or tene- 
 ment houses for employes; id. ; State v. Com- 
 missioners of Manslield. Tp., 23 N. J. L. 510, 
 57 Am. Dec. 409; as to an ordinary ware- 
 house, it was doubted; Cumberland Yal. R. 
 Co. v. McLanahan, 59 Pa. 23; but a build- 
 ing for handling freight was not a mere 
 warehouse; In re New York Cent. & II. R. R. 
 Co., 77 N. Y. 2 IS; so land for a track to an 
 elevator could be taken; Clarke v. Blackmar, 
 47 N. Y. 150; but not for a railroad con- 
 structed solely to convey passengers to see 
 the Niagara Biver and whirlpool for revenue 
 to a private person; In re Niagara Falls & 
 Whirlpool R. Co., 10S N. Y. 375, 15 N. E 
 See Lewis, Em. Dom. § 170; Rand. Em. Dom. 
 § 45. 
 
 Having obtained its franchises and right 
 of way subject to the right of the state to 
 extend public streets and highways across 
 its track, a railway company is not entitled 
 to compensation for interruption of its busi- 
 ness, or increased expense or risk involved 
 in the construction of such highway; Bos- 
 ton & M. R. Co. v. County Com'rs, 7'.» Me. 
 3S6, 10 Atl. 113; Lake Shore A- M. - 
 Co. v. City of Chicago, 148 HI. 509, .".7 X. E. 
 SS. Legislative authority to construct streets 
 and highways across such right of way does 
 not violate the constitutional prohibition 
 against taking private property for public 
 use without compensation; Albany N. B. Co. 
 v. Brownell. 24 N. Y. 3!:.; People v. B. Co., 
 150 X. Y. :>70, 51 N. E. 312: Rochester ft H. 
 Y. R. Co. v. city of Rochester, 163 x. > 
 57 N. E. 1123. But the company is entitled 
 to compensation under such circumstances 
 and its right is considered property; Hook 
 v. R. Co., 133 Mo. 314. 34 S. w. 549; New 
 York A 1,. B. R. Co. v. Capner, 49 X. .T. l. 
 555, 9 Atl. 7S1; Kansas Cent B. Co. v. Com- 
 missioners of Jackson County. 45 Kan. 716, 
 26 Pac. 394; Illinois Cent. B. Co. v. Highway 
 Com'rs of Town of Mattoon. 101 111. L' 17. 43 
 N. E. 1100; St. Louis S. YV. By. Co. V 
 all, 75 Ark. 530, SS S. W. 555; Louisville &
 
 EMINENT DOMAIN 
 
 1022 
 
 EMINENT DOMAIN 
 
 N. R. R. Co. v. City of Louisville, 131 Ky. 
 108, 114 S. W. 743, 24 L. R. A. (N. S.) 1213. 
 
 It is not a public use to provide for fenc- 
 ing a large tract of land subject to floods 
 which carried off the fences ; Scuffletown 
 Fence Co. v. McAllister, 12 Bush (Ky.) 312; 
 or to acquire swamp land and build docks, 
 warehouses, factories, etc. ; In re Eureka 
 Basin Warehouse & Mfg. Co., 96 N. Y. 42 ; 
 or to settle private controversies concerning 
 title by transferring the land of one to an- 
 other ; Vanhorne v. Dorrance, 2 Dall. (U. S.) 
 304, 1 L. Ed. 391; Lessee of Pickering v. Rut- 
 ty, 1 S. & R. (Pa.) 511. The latter cases arose 
 under legislation to settle titles and adjust 
 controversies in Pennsylvania under the Con- 
 necticut grant. 
 
 It is settled that the legislature cannot au- 
 thorize the taking of property for a private 
 use, but the decisions conflict as to the case 
 of private ways, or roads laid out under stat- 
 utes existing in many states. By many 
 courts they are held unconstitutional as being 
 a private use ; Taylor v. Porter, 4 Hill (N. Y.) 
 140, 40 Am. Dec. 274; Bankhead v. Brown, 
 25 la. 540; Richards v. Wolf, 82 la. 358, 
 47 N. W. 1044, 31 Am. St. Rep. 501 ; Wild v. 
 Deig, 43 Ind. 455, 13 Am. Rep. 399; Dickey 
 v. Tennison, 27 Mo. 373 ; Crear v. Crossly, 40 
 111. 175 ; but in others such roads are held 
 to be a public use, and the word private is 
 construed as a word of classification and not 
 technical or describing the use; Sherman v. 
 Buick, 32 Cal. 241, 91 Am. Dec. 577; Mon- 
 terey County v. Cushing, 83 Cal. 507, 23 Pac. 
 700; In re Hickman, 4 Harring. (Del.) 5S0 ; 
 Sadler v. Langham, 34 Ala. 311; Shaver v» 
 Starrett, 4 Ohio St. 494; Denham v. County 
 Com'rs of Bristol, 108 Mass. 202 ; Appeal of 
 Waddell, 84 Pa. 90; In re Killbuck Private 
 Road, 77 Pa. 39 ; Perrine v. Farr, 22 N. J. L. 
 356. 
 
 The doctrine as to taking under this pow- 
 er for the assistance of private enterprise is 
 thus stated: "The power of eminent domain 
 cannot be constitutionally employed to en- 
 able individuals to cultivate their land or 
 carry on their business to better advantage 
 even if the prosperity of the community will 
 be enhanced by their success ; but when the 
 public welfare depends upon an undertaking 
 which cannot succeed without taking rights 
 in private land, the courts will allow such 
 taking, especially if It is sanctioned by usage 
 contemporary with the adoption of the con- 
 stitution." Nichols, Em. Dom. 274 ; People 
 v. Township Board of Salem, 20 Mich. 452, 4 
 Am. Rep. 400 ; Citizens' Sav. & Loan Ass'n v. 
 Topeka, 20 Wall. (U. S.) 655, 22 L. Ed. 455 ; 
 Allen v. Inhabitants of Jay, 60 Me. 127, 11 
 Am. Rep. 185. 
 
 "The taking by a state of the private prop- 
 erty of one person without the owner's con- 
 sent for the private Use of another is not 
 due process of law and is a violation of the 
 fourteenth article of amendment of the con- 
 stitution of the United States." An act au- 
 
 thorizing a board of transportation to re- 
 quire a railroad corporation to grant to pri- 
 vate persons a location on the right of way 
 of a railroad for the purpose^ of erecting a 
 third elevator is invalid; Missouri Pac. Ry. 
 Co. v. Nebraska, 164 U. S. 403, 17 Sup. Ct. 
 130, 41 L. Ed. 4S9. The prohibition is against 
 taking without due process of law. So at the 
 same term the court say: "There is no spe- 
 cific prohibition of the Federal Constitution 
 which acts upon the states with regard to 
 their taking private property for any but a 
 public use ;" Fallbrook Irr. Dist. v. Bradley, 
 164 U. S. 112, 17 Sup. Ct. 56, 41 L. Ed. 369. 
 
 What is a public use, for which private 
 property may be taken by due process of law, 
 depends upon the particular facts and cir- 
 cumstances connected with the particular 
 subject-matter. See notes on this subject in 
 which the cases are collected; 91 Am. Dec. 
 585. 
 
 What may 6e taken. Every kind of prop- 
 erty may be taken under this power. It "is 
 attribute of sovereignty, and whatever exists 
 in any form, whether tangible or intangible, 
 may be subjected to the exercise of its pow- 
 er, and may be seized and appropriated to 
 public uses when necessity demands it" 
 Lewis, Em. Dom. § 262; Metropolitan City 
 Ry. Co. v. Ry. Co., 87 111. 317, 324 ; Alabama 
 & F. R. Co. v. Kenney, 39 Ala. 307; New 
 York, H. & N. R. Co. v. R. Co., 36 Conn. 196 ; 
 Water Works Co. of Indianapolis v. Burk- 
 hart, 41 Ind. 364; Eastern R. Co. v. Rail- 
 road, 111 Mass. 125, 15 Am. Rep. 13. The 
 general rule to be gathered from all the au- 
 thorities, considered together, is, that a leg- 
 islative grant of power to condemn property, 
 expressed in general terms, confers on the 
 grantee power to take all kinds of property 
 except property already devoted to public 
 use and necessary for the exercise of such 
 use ; 27 Cent. L. J. 207 ; it makes no differ- 
 ence whether corporeal property, as land, or 
 incorporeal, as a franchise, is to be affected ; 
 Bloodgood v. R. Co., 14 Wend. (N. Y.) 51; 
 Bonaparte v. R. Co., 1 Baldw. C. C. 205, Fed. 
 Cas. No. 1,617; U. S. v. Ry. Co., 160 U. S. 
 668, 16 Sup. Ct. 427, 40 L. Ed. 576 ; see Lou- 
 isville, C. & C. R. Co. v. Chappell, Rice (S. C.) 
 3S3; Backus v. Lebanon, 11 N. H. 19, 35 
 Am. Dec. 466; Enfield Toll Bridge Co. v. R. 
 Co., 17 Conn. 454, 44 Am. Dec. 556; Charles 
 River Bridge v. Warren Bridge, 11 Pet. (U. 
 S.) 420, 9 L. Ed. 773: State v. Dawson, 3 
 Hill (S. C.) 109; Lexington & O. R. Co. v. 
 Applegate, 8 Dana (Ky.) 2S9, 33 Am. Dec. 
 497; Pocantico Water Works Co. v. Bird, 130 
 N. Y. 249, 29 N. E. 246; Turner v. Nye, 154 
 Mass. 579, 28 N. E. 1048, 14 L. R. A. 487; 
 Louisville, N. O. & T. Ry. Co. v. Telegraph 
 Cable Co., 6S Miss. 806, 10 South. 74 ; Spring 
 Valley Water Works Co. v. Drinkhouse, 92 
 Cal. 528, 28 -Pac. 681. 
 
 The property which may be taken includes: 
 Estates successive in point of time, as re- 
 mainders and reversions; Alexander v. U.
 
 EMINENT DOMAIN 
 
 1023 
 
 EMINENT DOMAIN 
 
 S., 39 Ct. CI. 383; Charleston & W. C. Ry. 
 Co. v. Reynolds, 69 S. C. 4S1, 4S S. E. 47G; 
 life-tenancy; Austin v. R. Co., 45 Vt. 215; 
 Chicago, K. & N. Ry. Co. v. Ellis, 52 Kan. 
 
 41, :v.j Pac. 478; tenancy for years; Chicago 
 & E. R. Co. v. Dresel, 110 111. 89; Kearney 
 v. Ry. Co., 129 N. Y. 7G, 29 N. E. 70 ; or at 
 will; Sheehan v. City of Eall River, 187 
 Mass. :;."",<;, 7.', N. E. 544 ; easements, if impair- 
 ed by the new use; Slate v. Superior Court 
 of King County, 20 Wash. 278, GO Pac. 3S5 ; 
 even a prescriptive right to pollute a stream; 
 Sprague v. Dorr, 1S5 Mass. 10, 69 N. E. 344; 
 profits a prendre; Carville v. Com., 192 
 Mass. 570, 7S N. E. 735; mortgages; Bank 
 of Auburn v. Roberts, 44 N. Y. 192; Wooster 
 v. R. Co., 57 Wis. 311, 15 N. W. 401 ; South 
 Park Com'rs v. Todd, 112 111. 379; contra, 
 Whiting v. City of New Haven, 45 Conn. •■;<>:: ; 
 Goodrich v. Board, 47 Kan. 355, 27 Pac. 1006, 
 18 L. It. A. 113; Farnsworth v. City of Bos- 
 ton, 126 Mass. 1; (but not general liens; 
 Watson v. R. Co., 47 N. Y. 157, or ground 
 rents ; Workman v. Mifflin, 30 Pa. 3G2 ;) dow- 
 er; French v. Lord, 69 Me. 537"; Venable v. 
 Ry. Co., 112 Mo. 103, 20 S. W. 493, IS L. R. 
 A. 68; buildings and fixtures; Williams v. 
 Com., 16S Mass. 364, 47 N. E. 115 (but only 
 such fixtures as cannot be removed without 
 injury to the freehold or to the owner ; In re 
 City of New York, 192 N. Y. 295, 84 N. E. 
 1105, IS L. R. A. [N. S.] 423, 127 Am. St. 
 Rep. 903). As to who are proper parties see 
 infra; and as to what is property within the 
 constitutional use of the word, see Nichols, 
 Em. Doin. § 173 et seq. An inchoate right 
 of dower is defeated by condemnation for a 
 public use; Moore v. Mayor, etc., 8 N. Y. 
 110, 59 Am. Dec. 473; Duncan v. City of 
 Terre Haute, 85 Ind. 104; Wheeler v. Kirt- 
 land, 27 N. J. Eq. 534 ; Chouteau v. Ry. Co., 
 122 Mo. 375, 22 S. W. 45S, 30 S. W. 299; 
 French v. Lord, 69 Me. 537; it is said that 
 the dower right in the land is cut off but 
 transferred to the proceeds ; Bonner v. Peter- 
 son, 44 111. 253; In re Central Park Exten- 
 sion, 16 Abb. Pr. (N. Y.) 56 ; but the statu- 
 tory purchase of land by a railroad corpora- 
 tion for depots, etc., does not extinguish the 
 inchoate right of dower therein; Nye v. R. 
 Co., 113 Mass. 277. 
 
 The power has been held to exist : To 
 build a railroad over basins maintained by a 
 water power company for public purposes, 
 and its franchise is not thereby destroyed; 
 Boston Water Power Co. v. Boston & W. R. 
 Corp., 23 Pick. (Mass.) 360; to take for a 
 public road the property, easement, and 
 franchise of a bridge company ; West River 
 Bridge Co. v. Dix, G How. (TJ. S.) 507, 12 L. 
 Ed. 535 ; to build a railroad over the land of 
 a gas company not then in use but likely to 
 become necessary; New York C. & H. R. R. 
 Co. v. Gas-Light Co., 63 N. Y. 326 ; over the 
 lands and right of way of a canal company; 
 Tuckahoe Canal Co. v. R. Co., 11 Leigh (Va.) 
 
 42, 36 Am. Dec. 374; Board of Trustees of 
 
 Illinois & M. Canal v. R. Co., 14 111. 314; 
 over lands of a state asylum for deaf and 
 dumb; Indiana Cent. Ry. < to. v. Si 
 421; over a turnpike which would nol he ma- 
 terially injured; White River Turnpike Co. 
 v. R. Co., 21 Vt 500; hut not over land 
 necessary for the railway, owned and used 
 by the state for an institution for the blind; 
 St. Louis, J. & C. R. Co. v. T ;.; 111. 
 
 303. In a proceeding by a railroad company 
 to condemn for terminal warehouses the 
 land of a steamboat company, the test wheth- 
 er the defendant held its land for such use 
 as to exempt it from condemnation was said 
 to be not what the defendant "does or may 
 choose to do, but what under the law it must 
 do, and whether a public trust is imp: 
 upon it. It does not so hold its property im- 
 pressed with a trust for the public use un- 
 less its charter puis that character upon it 
 and so that it cannot he shaken off ;" In re 
 New York, L. & W. Ry. Co., 99 N. Y. 12, 1 
 N. E. 27. Any property belonging to a rail- 
 way not in actual use or necessary to the 
 proper exercise of the franchise thereof may 
 be taken for the purpose of another railroad 
 under a general power; Baltimore & O. R. 
 Co. v. R. Co., 17 W. Va. 812; Chicago & N. 
 W. Ry. Co. v. R. Co., 112 111. 589; In re 
 Poughkeepsie & E. R. Co., 63 Barb. (N. Y.j 
 151; Providence & W. R. R. Co. v. R. Co., 
 13S Mass. 277; Pittsburgh Junction R. <"•■. 
 v. R. Co., 146 Pa. 207, 23 Atl. 313; but not 
 where the loss of the property to be taken 
 is necessary to the exercise of the franchise 
 of its owner; Central City Horse Ry. Co. v. 
 Ry. Co., 81 111. 523 ; Oregon Cascade R. Co. 
 v. Baily, 3 Or. 164. The same general prin- 
 ciples are applied to cases where a muni 
 corporation attempts to condemn railroad 
 property; if the property is not necessary 
 to the new use and the latter is destructive 
 of the old one it is not permitted to be tak- 
 en; Baltimore & O. C. R. Co. v. North, 103 
 Ind. 4S6, 3 N. E. 144, 23 A. & E. R. R. Cas. 
 36; s. c. Baltimore & O. & C. R. Co. v. North. 
 103 Ind. 486, 3 N. E. 144; Winona & St. P. 
 Ry. Co. v. City of Watertown, 4 S. D. 323, 
 56 N. W. 1077; otherwise, if it will leave the 
 franchise unimpaired; New Jersey Southern 
 R. Co. v. Com'rs, 39 N. J. L. 28. A market 
 house has been condemned for a railway 
 terminal station, reached by an elevated rail- 
 road, and its approaches; Twelfth-St. Mar- 
 ket Co. v. R. Co., 142 Pa. 580, -Jl Atl. 902, 
 989; but one corporation cannot take the 
 franchise of another which is in use unless 
 expressly authorized by the legislature, and 
 then only by regular condemnation, and can 
 not take it at all. if this will materially af- 
 fect its use: Fidelity Trust & Safety Vault 
 Co. v. Ry. Co., 63 Fed. 687. So a stra t may 
 be taken: Ottawa, O. C. & C. G. R. Co. v. 
 Larson. 40 Kan. 301, 10 Pac. 661, 2 L. ]',. A 
 59; a bridge; 30 Am. & Fug. Corp. Cas. 36, 
 n. ; or land in custody of the law ; 14 Am. L. 
 Rev. 131.
 
 EMINENT DOMAIN 
 
 1024 
 
 EMINENT DOMAIN / 
 
 Where the power in a charter to condemn 
 lands is limited so as to exclude land or 
 property of any other corporation existing 
 under the law of the state, this restriction 
 was not confined to lands of corporations ex- 
 isting at the passage of the act, but applies 
 to those thereafter incorporated ; and anoth- 
 er corporation which acquired lands after 
 the first corporation had filed a survey there- 
 of according to the requirements of the laws, 
 but before any petition for the appointment 
 of commissioners had been presented, could 
 claim exemption from condemnation under 
 the limitations; In re American Transp. & 
 Nav. Co., 58 N. J. L. 109, 32 Atl. 74. 
 
 See review of cases on this general sub- 
 ject, of the taking of a franchise; 27 Cent. 
 L. J. 207, 231 ; and as to corporate property ; 
 14 Am. & Eng. R. R. Cas. 41, n. 
 
 Claims of citizens against a foreign power 
 may be taken by the national government 
 for the purpose of adjusting its relations 
 with such power; Meade v. U. S., 2 Ct. of CI. 
 224 ; and a claim for damages to land by rea- 
 son of an Unlawful entry may be taken and 
 adjusted in a proceeding to take the land 
 itself ; Morris Canal & Banking Co. v. Town- 
 send, 24 Barb. (N. Y.) 65S. 
 
 It has been held that money cannot be 
 taken; Field, J., Burnett v. City of Sacra- 
 mento, 12 Cal. 76, 73 Am. Dec. 518; contra, 
 Cary Library v. Bliss, 151 Mass. 364, 25 N. 
 E. 92, 7 L. R. A. 7G5 ; only as to money tak- 
 en by the state in time of war; Mitchell v. 
 Harmony, 13 How. (U. S.) 115, 14 L. Ed. 
 75; Wellman v. Wickerman, 44 Mo. 484; 
 and without any such limitation ; Sharswood, 
 J., in Hammett v. Philadelphia, 65 Pa. 152, 
 3 Am. Rep. 615, who says that "the public 
 necessity which gives rise to it prevents its 
 being restrained by any limitations as to ei- 
 ther subject or occasion." "Such," the opin- 
 ion continues, "would be the case of a press- 
 ing and immediate necessity, as in the event 
 of invasion by a public enemy, or some great 
 public calamity, as famine or pestilence, con- 
 tribution could be levied on banks, corpora- 
 tions, or individuals." 
 
 Buildings on land condemned are parts of 
 the realty and pass with the land, and the 
 owner must be paid for them in full, and 
 being so paid cannot recover from the com- 
 pany damages for the removal of them ; For- 
 ney v. R. Co., 23 Neb. 465, 36 N. W. 806 ; nor 
 can the owner remove them ; Finn v. Gas & 
 Water Co., 99 Pa. 640. See, generally, as to 
 structures, 3 Am. R. R. & Corp.. Cas. 181, n. 
 
 An act for the extinguishment of irredeem- 
 able ground rents was held not to be an ex- 
 ercise of the right of eminent domain and 
 therefore unconstitutional ; Appeal of Palair- 
 et, 67 Pa. 479, 5 Am. Rep. 450. Generally a 
 city may not condemn property beyond its 
 territorial limits ; Bank of Augusta v. Earle, 
 13 Peters (U. S.) 519, 10 L. Ed. 274; Crosby 
 v. Hanover, 36 N. H. 404; or a corporation 
 
 in a different state from that of its incorpo- 
 ration; Saunders v. Imp. Co., 58 Fed. 133; 
 but there are exceptions to the rule as in 
 case of a city which may condemn property 
 beyond its orders where the necessity exists, 
 as for a park ; Thompson v. Moran, 44 Mich. 
 602, 7 N. W. 180; St. Louis County Court v. 
 Griswold, 58 Mo. 175 ; a sewer ; City of Cold- 
 water v. Tucker, 36 Mich. 474, 24 Am. Rep. 
 601; Maywood Co. v. Village of May wood, 
 140 111. 216, 29 N. E. 704; or waterworks; 
 Warner v. Town of Gunnison, 2 Colo. App. 
 430, 31 Pac. 238; State v. City of Newark, 
 54 N. J. L. 62, 23 Atl. 129 ; but in such case 
 the property must be sufficiently near to the 
 municipality to be serviceable for the pur- 
 pose for which it is condemned ; In re City 
 of New York, 99 N. Y. 569, 2 N. E. 612. 
 
 Reversion on abandonment and change of 
 public use. Where land is taken for one 
 purpose, it reverts to the owner if that use 
 is abandoned ; Miller v. R. Co., 43 Ind. App. 
 540, 88 N. E. 102; Harris v. Elliott, 10 Pet. 
 (U. S.) 25, 9 L. Ed. 333; Kimball v. City of 
 Kenosha, 4 Wis. 321 ; Newton v. M'f'g's Ry. 
 Co., 115 Fed. 781, 53 C. C. A. 599; Chicago 
 & E. I. R. Co. v. Clapp, 201 111. 418, 66 N. 
 E. 223 (Under constitutional provision) ; Can- 
 ton Co. of Baltimore v. R. Co., 99 Md. 202, 
 57 Atl. 637 ; Neitzel v. Ry. Co., 65 Wash. 100, 
 117 Pac. 864, 36 L. R. A. (N. S.) 522; and 
 he can restrain the unlawful use of it; Ap- 
 peal of Lance, 55 Pa. 16, 93 Am. Dec. 722; 
 since the nature of the right exercised sub- 
 jects the statutes conferring it to a strict 
 construction ; Washington Cemetery v. R. 
 Co., 68 N. Y. 591; and unless the statute 
 clearly authorizes greater latitude the pow- 
 er to take is only for the public use indicat- 
 ed ; Attorney General v. Aqueduct Corp., 133 
 Mass. 361. When the public use is discontin- 
 ued, the land owner holds his title unincum- 
 bered as before condemnation; McCombs v. 
 Stewart, 40 Ohio St. 647 ; Chambers v. Pow- 
 er Co., 100 Minn. 214, 110 N. W. 1128 ; Gross 
 v. Jones, 85 Neb. 77, 122 N. W. 081, 32 L. R. 
 A. (N. S.) 47; Lyford v. Laconia, 75 N. H. 
 220, 72 Atl. 1085, 22 L. R. A. (N. S.) 1062, 
 139 Am. St. Rep. 680 ; but to constitute aban- 
 donment there must be intention to abandon 
 as well as actual relinquishment ; Canton Co. 
 of Baltimore v. R. Co., 99 Md. 202, 57 Atl. 
 637; Corr v. Philadelphia, 212 Pa. 123, 61 
 Atl. 808; Chicago & E. I. R. Co. v. Clapp, 201 
 111. 418, 66 N. E. 223 ; and the expression of 
 an intention not to abandon is not conclusive, 
 but is to be considered with other evidence 
 of action and conduct; id. It has been held 
 that the legislature may change the use to 
 another of the same nature; Chase v. Mfg. 
 Co., 4 Cush. (Mass.) 152; Eldridge v. City of 
 Binghamton, 120 N. Y. 309, 24 N. E. 462; 
 Malone v. City of Toledo, 28 Ohio St. 643; 
 but it is probably the better opinion that 
 compensation must be given for another or 
 additional burden; State v. Laverack, 34 N.
 
 EMINENT DOMAIN 
 
 102; 
 
 EMINENT DOMAIN 
 
 J. L. 201; Lahr v. Ry. Co., 104 N. Y. 268, 
 10 N. E. 528; Wagner v. Ry. Co., 104 N. Y. 
 6G5, 10 N. E. 535; Wead v. R. Co., 64 Vt. 
 52, 24 Atl. ::<il ; Lostutter v. City of Aurora, 
 126 Ind. 430, 20 X. E. 184, 12 L. R. A. 259; 
 Town of Hazlehurst v. Mayes, 84 M 
 86 South. •'.:, 04 L. R. A. 805. In some 
 payment for the damage caused by the 
 change of use is sufficient; Lucas v. Power 
 Co., 92 Neb. 550, 138 N. W. 761. 
 
 Indirect or consequential damages. The 
 principle that a right of compensation exists 
 wherever private property is taken for pub- 
 lic use does not extend to the case of one 
 whose property is indirectly damaged by the 
 lawful use of property already belonging to 
 the public. For example, it was bold that 
 an adjoining or abutting owner was not en- 
 titled to compensation for damages result- 
 ing from the change of a grade of a street; 
 4 Term 794; Proctor v. Stone, 158 Mass. 
 564, 33 N. E. 704; Brooks v. Improvement 
 Co., 82 Me. 1, 19 Atl. 87, 7 L. R. A. 460, 17 
 Am. St Rep. 459; Rauenstein v. R. Co., 136 
 N. Y. 528, 32 N. E. 1047, 18 L. R. A. 768. 
 Callender v. Marsh, 1 Pick. (Mass.) 418, 
 was the leading American case, and gave 
 rise to a statute to remedy the wrung 
 suggested by it. In Pennsylvania the doc- 
 trine of these cases was followed in a case 
 in which Gibson, C. J., expressed regret 
 that such injustice was remediless ; O'Con- 
 nor v. Pittsburgh, 18 Pa. 187 (a case refer- 
 red to by the same court as of a class in- 
 tended to be remedied by the constitution of 
 1874; O'Brien v. Philadelphia. 150 Pa. 589, 
 24 Atl. 1047, 30 Am. St. Rep. S32). These 
 and the other authorities were reviewed by 
 the United States Supreme Court, and the 
 same conclusion reached as being "well set- 
 tled both in England and in this country;" 
 Smith v. Corporation of Washington, 20 
 How. (U. S.) 135, 15 L. Ed. 858. Of the law 
 at this period, it was said that the limitation 
 of the term "taking" to an actual physical 
 appropriation or divesting of title was "far 
 too narrow to answer the purpose of jus- 
 tice;" Sedg. Const. L. (2d ed.) 456. See 1 
 Thayer, ('as. Const. L. 1053, 1055; 2 Am. R. 
 & Corp. Cas. 435, n. The law on this specific 
 subject of change of grades became firmly 
 settled, except as changed by constitutional 
 or statutory enactments, but on the general 
 subject of what constitutes a "taking" of 
 property, it has since undergone very great 
 changes, and the narrow rule of physical ap- 
 propriation has ceased to afford a criterion 
 of decision. An illustration of the tendency 
 to treat this question liberally, rather than 
 technically, is a decision that it is a "tak- 
 ing" of property to prohibit an owner of 
 land on a boulevard from building, beyond 
 a certain limit, on the front part of the lot; 
 City of St. Louis v. Hill, 116 Mo. 527, 22 S. 
 W. 861, 21 L. R. A. 226; City of Philadelphia 
 v. Linnard, 97 Pa. 242; In re Chestnut 
 Street, 118 Pa. 593, 12 Atl. 585. See Vander- 
 Bouv.— 65 
 
 lip v. Grand Rapids, 73 Mich. 522, 41 X. W. 
 677, 3 L. R. A. 247, 16 Am. St. Rep. 597; 
 .Memphis & C. R. Co. v. R. Co.. 96 Ala. 571, 
 11 South. 642, 18 L. It. A. 166. The older 
 cases rested upon a narrow, the later ones 
 upon a liberal, meaning >>( tin- word 
 erty" in the constitutions. Of 
 ton v. Railroad Co., 51 X. II. 504, 12 Am. Rep. 
 147. is the leading case on th< of the 
 
 right to compensation where property 
 jured and not physically taken. Plaintiff's 
 laud was overflowed during a freshet as the 
 result of the construction of the defendant's 
 railroad. Damages for the land actually tak- 
 en for the railroad had been paid as the result 
 of condemnation proceedings. It was held 
 that the right to use the land undisturbed 
 really constituted the property in it. rather 
 than the physical possession of the land itself. 
 and that even if the land itself were the 
 "property," a physical interference with it 
 which abridged the right to use it was in fact 
 a taking of the owner's property to that ex- 
 tent The opinion of Smith, J., in this case 
 is said to have contributed more than any 
 other towards the change in the law extend- 
 ing the effect of the word talcing; Lewis. Em. 
 Dom. § 58. See also Thompson v. Imp. Co., 
 54 X. H. 545; City of Janesville v. Carpen- 
 ter, 77 Wis. 288, 46 X. W. 128, 8 L. R. A. 
 808, 20 Am. St. Rep. 123; Weaver v. Boom 
 Co., 28 Minn. 534, 11 N. W. 114; 14 Ch. Div. 
 58; Xortbern Transp. Co. v. Chicago, 99 U. 
 S. 635, 25 L. Ed. 336; Earl, J., dissenting in 
 Story v. R. R. Co., 90 X. Y. 122, 43 Am. Rep. 
 146. It is now quite settled that the flowing 
 of lands, against the owner's consent and 
 without compensation, is a taking; Eaton v. 
 R. R.. 51 X. H. 504, 12 Am. Rep. 147; Grand 
 Rapids Booming Co. v. Jarvis, 30 Mich. 321. 
 See also, Xevins v. City of Peoria. 41 111. 
 502, 89 Am. Dec. 392; Pettigrew v. Village 
 of Evansville. 25 Wis. 223, 3 Am. Rep. 50; 
 Pumpelly v. Canal Co., 13 Wall. (U. S. i 166, 
 20 L. Ed. 557. In the latter case. Miller. J., 
 after referring to the decisions that there 
 is no remedy for a consequential injury from 
 the improvements of roads, streets, rivers, 
 etc., said: "But we are of opinion that the 
 decisions referred to have gone to the utter- 
 most limit of sound judicial construction in 
 favor of this principle, and. in some case-. 
 beyond it. and that it remains true that 
 where real estate is actually invaded by su- 
 perinduced additions of water, earth, sand 
 or other material, or by having any artificial 
 structure placed on it, so as to effectually de- 
 stroy or impair its usefulness, it is a taking. 
 within the meaning of the constitution, and 
 that this proposition is not in conflict with 
 the weight of judicial authority in this coun- 
 try, and certainly not with sound principle. 
 Beyond this we do not go, and this case calls 
 us to go no further." This was afterwards 
 said by the court to be a case of "physical 
 invasion of the real estate of the private 
 owner, a practical ouster of his possession" ;
 
 EMINENT DOMAIN 
 
 1026 
 
 EMINENT DOMAIN 
 
 Mississippi & R. River Boom Co. v. Patter- 
 son, 98 U. S. 403, 25 L. Ed. 206. 
 
 The danger to which the occupants of the 
 remaining land and the stock thereon will 
 be exposed by the operation of a railway up- 
 on the land taken cannot be considered in 
 assessing damages; Indianapolis Traction 
 Co. v. Larrabee, 1G8 Ind. 237, 80 N. E. 413, 
 10 L. R. A. (N. S.) 1003, and note, 11 Ann. 
 Cas. 695, on the general question of the dan- 
 ger to the owner of the property, or his fam- 
 ily, or his live stock, as an element of dam- 
 ages. The conclusion is that the cases dis- 
 agree too much to form a settled rule and 
 they are collected, dealing with the subject 
 from all points of view. 
 
 The interference with the rights of abut- 
 ting owners by building an elevated railroad 
 on a street was held a taking of private 
 property for public use without compensa- 
 tion, to restrain which the plaintiff was en- 
 titled to an injunction; Story v. R. Co., 90 
 N. Y. 122, 43 Am. Rep. 146. This case was 
 decided by four judges against three dis- 
 senting, whose views were expressed by 
 Earl, J., in an opinion much referred to, 
 contending that it was a use of the street 
 properly incident to its purpose as a public 
 highway. An effort to secure a re-examina- 
 tion of the doctrine of this case resulted in 
 its affirmance; Lahr v. Ry. Co., 104 N. Y. 
 268, 10 N. E. 528. In a subsequent case the 
 New York court of appeals stated the law 
 of that state to be that, although the abut- 
 ting owner might have an injunction, and in 
 the same proceeding recover full compensa- 
 tion for the permanent injury, he could not, 
 in an action at law, recover permanent dam- 
 ages measured by the diminution in value 
 of the property, but only such temporary 
 damages as he had sustained at the time of 
 commencing the action; Pond v. Ry. Co., 112 
 N. Y. 190, 19 N. E. 487, 8 Am. St. Rep. 734. 
 In a leading case the construction of an 
 ordinary commercial railroad along a street 
 in front of a lot without impairing ingress 
 and egress, but resulting in the usual in- 
 juries to the lot from steam, smoke, dust, 
 smells, interference with light and air, jar- 
 ring the ground, etc., was held to be an ap- 
 propriation of the street for what was not 
 a proper street use, for which damages were 
 recoverable, but limited to the injury result- 
 ing from the operation of the road in front 
 of the lot. and not including any accruing 
 from operating it on other parts of the 
 street ; Adams v. R. Co., 39 Minn. 286, 39 N. 
 \v. 629, 1 L. R. A. 493, 12 Am. St. Rep. 644. 
 The Maryland court of appeals, in review- 
 ing the decisions on the subject, and partic- 
 ularly the New York cases, mentions as the 
 only other cases holding that opinion, Craw- 
 ford v. Village of Delaware, 7 Ohio St. 460; 
 Adams v. R. Co., 39 Minn. 286, 39 N. W. 629, 
 1 L. R. A. 493, 12 Am. St. Rep. 644; Theo- 
 bold v. Ry. Co., 66 Miss. 279, 6 South. 230, 
 4 L. R. A. 735, 14 Am. St. Rep. 564 ; and con- 
 
 siders that its own decision in Mayor, etc., 
 of Cumberland v. Willison, 50 Md. 148, 33 
 Am. Rep. 304, and O'Brien v. R. Co., 74 Md. 
 363, 22 Atl. 141, 13 L. R. A. 126, should be 
 adhered to as being in accord with the decid- 
 ed weight of judicial opinion. The conclu- 
 sion is thus stated : "The New York doctrine 
 involves this inextricable dilemma, viz., if 
 the grading of a street by a municipal cor- 
 poration cuts off all access to a person's 
 house, albeit his property is thereby destroy- 
 ed and rendered valueless, it is not taken in 
 the constitutional sense; but if a railroad 
 company in lawfully constructing its road 
 does precisely the same thing that the city 
 did in grading a street, then the abutter's 
 property is taken, though not physically en- 
 tered upon at all. The structure is there- 
 fore a lawful one. But it does not destroy 
 the street as a street, though it may cause 
 the plaintiff greater inconvenience in gain- 
 ing access to his lots than he encountered 
 before it was built. But this and other in- 
 juries complained of are purely incidental 
 and consequential, though the appellant, un- 
 der the statutes of Maryland, is not without 
 a remedy therefor; Garrett v. Ry. Co., 79 
 Md. 277, 29 Atl. 830, 24 L. R. A. 396. 
 
 The question what constitutes a taking, 
 under the older constitutional provisions, 
 was much considered with respect to the 
 use of streets and highways by many other 
 modern appliances, such as gas and water 
 pipes, steam and electric railroads, and poles 
 for telegraph, telephone, and electric light 
 wires. In this class of cases, of which the 
 elevated railroad cases have been used as 
 an illustration, the question has turned on 
 the consideration whether the proposed use 
 was a legitimate incidental use of the street 
 as such, and the tendency of the cases is in 
 favor of a very liberal construction of the 
 rights of the public, at least in streets of 
 cities. In some states a distinction is made 
 between city streets and country roads, and 
 the public easement in the latter is much 
 more restricted, and the rights of abutting 
 owners to damages consequently more ex- 
 tended ; Bloomfield & Rochester Nat. Gas 
 Light Co. v. Calkins, 62 N. Y. 386 ; Appeal of 
 Sterling, 111 Pa. 35, 2 Atl. 105, 56 Am. Rep. 
 246; Pennsylvania R. Co. v. Railway, 167 
 Pa. 62, 31 Atl. 468, 27 L. R. A. 766, 46 Am. 
 St. Rep. 659; Kincaid v. Gas Co., 124 Ind. 
 577, 24 N. E. 1066, 8 L. R. A. 602, 19 Am. 
 St. Rep. 113. See Impairing the Obligation 
 of Contracts. 
 
 In a general view of the subject nothing 
 more is practicable than a mere indication 
 or illustration of the tendency of the deci- 
 sions which must be resorted to and exam- 
 ined for application to a special case. City 
 streets are legitimately used, from necessity, 
 for sewers and drains ; Cone v. City of Hart- 
 ford, 28 Conn. 363; Leeds v. City of Rich- 
 mond, 102 Ind. 372, 1 N. E. 711; Traphagen 
 v. Mayor, etc., of Jersey City, 29 N. J. Eq.
 
 EMINENT DOM AIN 
 
 1027 
 
 EMINENT DOMAIN 
 
 206; White v. Corporation of Yazoo City, 27 
 Miss. 357; water pipes; Crooke v. Water- 
 Works Co.. 20 Hun (N. Y.) 245; gas pipes, 
 as a practical necessity, in cities, are not 
 Questioned but indirectly sanctioned ; Story 
 v. R. Co., 00 N. Y. 161, 43 Am. Rep. 146; 
 Tompkins v. Hodgson, 2 Hun (N. Y.) 146. 
 See City of Boston v. Richardson, 13 Allen 
 (Mass.) 146, 160. As to steam railroads, 
 from a great conflict of decisions (difficult 
 if not impossible to reconcile), it would seem 
 to be the best opinion that it is not a legiti- 
 mate use of the street; see Rand. Em. Dom. 
 § 405; Lewis, Em. Dom. § 111, with notes 
 citing the eases at large; a horse railway is 
 almost universally held to be a proper use 
 of streets ; Rand. Em. Dom. § 402 ; Lewis, 
 Em. Dom. § 124; the only substantial dissent 
 being in New York ; Craig v. R. Co., 39 N. 
 Y. 404; unless the fee is in the public; Kol- 
 linger v. R. Co., 50 N. Y. 206. See Cincin- 
 nati & Spring Grove Ave. St. Ry. Co. v. Vil- 
 lage of Cumminsville, 14 Ohio St. 523; Ho- 
 bart v. R. Co., 27 Wis. 194, 9 Am. Rep. 461. 
 With respect to electric railways in cities, 
 the doctrine of "the right of the public to use 
 the streets by means of street cars" was said 
 to be "now so thoroughly settled as to be no 
 longer open to debate," and it was extended 
 to the poles and wires of the new system ; 
 ilalsey v. Ry. Co., 47 N. J. Eq. 380. 20 Atl. 
 859; and see Detroit City Ry. v. Mills, 85 
 Mich. 634, 48 N. W. 1007; Koch v. Ry. Co., 
 75 Md. 222, 23 Atl. 463, 15 L. R. A. 377; Far- 
 rell v. R. Co., 61 Conn. 127, 23 Atl. 757; Raf- 
 ferty v. Traction Co., 147 Pa. 570. 23 Atl. 
 884, 30 Am. St. Rep. 763; but not along a 
 country road ; Pennsylvania R. Co. v. Rail- 
 way, 167 Pa. 62, 31 Atl. 468, 27 L. R. A. 760, 
 46 Am. St. Rep. 059. See Rand. Em. Dom. 
 § 403. Electric light poles are usually treat- 
 ed as proper, on the same basis as the older 
 lamp posts; Johnson v. Electric Co., 54 Hun 
 469, 7 N. Y. Supp. 716; but not telegraph 
 and telephone poles, according to the weight 
 of authority; Pacific Postal Tel. Cable Co. 
 v. Irvine, 49 Fed. 113; Western Union Tel. 
 Co. v. Williams, 86 Va. 696, 11 S. E. 106, 
 8 L. R. A. 429, 19 Am. St. Rep. 908; Tag-art 
 v. R. Co., 16 R. I. 668, 19 Atl. 326, 7 L. R. A. 
 205; St. Louis v. Tel. Co., 148 U. S. 92, 13 
 Sup. Ct. 485, 37 L. Ed. 3S0; though in some 
 cases it is held otherwise, and of these the 
 leading case considered the subject within 
 the principle of Callender v. Marsh, 1 Pick. 
 (Mass.) 418; the opinion of the court and 
 the dissenting one of two judges present the 
 two views of the question very fully ; Pierce 
 v." Drew, 136 Mass. 75, 49 Am. Rep. 7. See 
 also Julia Bldg. Ass'n v. Tel. Co., 8S Mo. 258, 
 57 Am. Rep. 398. 
 
 In the cases relating to the use of streets and 
 highways a great diversity of decision is occasioned 
 by the distinctions drawn between the rights of an 
 abutting owner who has the fee and one owning 
 merely an easement of access over a street of which 
 the soil belongs to the public. The question is fur- 
 ther complicated by the varied application of the 
 
 doctrine that an owner whose land was taken for 
 a street or highway is presumed to anticipate the 
 future uses to which it may be put both over and 
 under the surface. The confusion of the decisions 
 is well stated by a writer on the subject: "Laying 
 aside constitutional and statutory declarations of 
 liability for consequential injuries we And the fol- 
 lowing anticipations imputed to one whose land 
 is affected by a street easement In every state 
 except Ohio he anticipates that he- may be o 
 to enter his house by a second-story window 
 the grade is raised, or by a ladder when the grade 
 is lowered. In New York he does not 
 improved method of transportation from the 
 car to the electric motor; but in Peni 
 anticipates all methods. The Ma ts man 
 
 seema to be the only one who has clearly 
 patcd the telegraph and telephone. Judged by 
 results there is no working rule of general applica- 
 tion deducible from a presumed anticipation of fu- 
 ture use." Rand. Em. Dom. § 414. 
 
 In some states there are constitutional pro- 
 visions covering this subject, sixteen of them 
 requiring compensation when property is 
 damaged by such proceedings generally, and 
 three others when the delegated power of 
 eminent domain is exercised by corporations. 
 Under these provisions compensation is in- 
 quired for property "damaged" as well as 
 "taken," and the former word is held to in- 
 clude all actual damages resulting from the 
 exercise of the right of eminent domain 
 which diminish the market value of private 
 property; City of Omaha v. Kramer, 25 Xeb. 
 4S9, 41 N. W. 295, 13 Am. St. Rep. 
 Reardon v. San Francisco, 66 Cal. 492, 6 I'ac 
 317, 56 Am. Rep. 100; City of Atlanta v. 
 Green, 67 Ga. 3S6 ; Chicago & W. I. R. Co. v. 
 Ayres, 106 111. 511; Hot Springs R. Co. v. 
 Williamson, 45 Ark. 429. 
 
 The treatment by the courts of the subject 
 of consequential damages is illustrated by 
 the course of decisions under two constitu- 
 tions of Illinois, by the supreme court of that 
 state, which is very elaborately ceviewed in 
 a judgment of the supreme court of the Unit- 
 ed States. The constitution of 1S48 prohibit- 
 ed the taking or application to public use of 
 property without just compensation; and the 
 rule adopted by the courts was that any 
 physical injury to private property, by the 
 erection, etc., of a public improvement, in or 
 along a public highway, whereby its use was 
 materially interrupted, was to be regarded 
 as a taking, within the meaning of the con- 
 stitution. The constitution of 1S70 provided 
 that private property should not be taki n or 
 damaged without just compensation, and up- 
 on this it was held that the property owner 
 was protected against any substantial dam- 
 age, though consequential, and that it did 
 not require a trespass or actual physical in- 
 vasion ; Rigney v. City of Chicago, 102 ill. 
 64; City of Chicago v. Bldg. Ass'n, 102 111. 
 379, 40 Am. Rep. 598; Chicago v. Taylor, 125 
 U. S. 161, 8 Sup. Ct. 820, 31 L. Ed. 638. In 
 the judgment hist cited Harlan, J., said: 
 "We concur in that construction" and "we 
 regard that case (Rigney v. City of Chicago, 
 102 111. 64) as conclusive of this question."
 
 EMINENT DOMAIN 
 
 1028 
 
 EMINENT DOMAIN 
 
 This constitution of Illinois was the first in 
 which the word "damaged" was inserted, but 
 in 1S94 the supreme court of Colorado enu- 
 merated fourteen other states which had 
 then adopted the word; City of Pueblo v. 
 Strait, 20 Colo. 13, 36 Pac. 789, 24 L. R. A. 
 392, 46 Am. St. Rep. 273. 
 
 In awarding damages to one, a part of 
 whose land is sought to be condemned for 
 public use, for injury to his remaining land, 
 injury to tracts not connected with, and held 
 under different titles from, although adjoin- 
 ing, that from which the parts are taken. 
 cannot be considered; Sharpe v. U. S., 112 
 Fed. 893, 50 C. C. A. 597, 57 L. R. A. 932, 
 where Gray, J., upon careful examination 
 of the question, says that it is right and 
 proper to include the damages, in the shape 
 of deterioration of value, to the residue of 
 the tract, but that, to apply this rule, "re- 
 gard is had to the integrity of the tract as a 
 unitary holding" and, where the holding 
 from which the part is taken is "of such a 
 character that its integrity as an individual 
 tract shall have been destroyed by the tak- 
 ing, depreciation in the value of the residue 
 . . . may properly be considered allowa- 
 ble damages in adjusting the compensation 
 to be given to the owner for the land taken. 
 It is often difficult, when part of a tract is 
 taken, to determine what is an independent 
 tract, but the character of the holding, and 
 the distinction between the residue of a 
 tract, whose integrity is destroyed by the 
 taking, and what are merely other parcels 
 or holdings of the same owner, must be kept 
 in mind." The case is accompanied in the 
 last citation by a note in which the cases 
 are examined and which concludes that "the 
 general rule is that when property is so sit- 
 uated that it is used as a unit, and each 
 part is dependent upon the other, the dam- 
 ages will not be limited in eminent domain 
 to the particular piece taken, but will ex- 
 tend to the whole." Substantially this rule 
 has been applied in a great variety of cases 
 to both country and city property; Gorgas 
 v. R. Co., 215 Pa. 501, 64 Atl. 6S0, 114 Am. 
 St. Rep. 974; Jeffery v. Osborne, 145 Wis. 
 351, 129 N. W. 931; Union Traction Co. v. 
 Pfeil, 39 Ind. App. 51, 78 N. E. 1052; St. 
 Louis, Memphis & S. E. R. Co. v. Realty & 
 Investment Co., 205 Mo. 167, 103 S. W. 977, 
 120 Am. St. Rep. 724 ; West Skokie Drainage 
 Dist. v. Dawson, 243 111. 175, 90 N. E. 377, 
 17 Ann. Cas. 776 ; In re Lehigh Valley R. Co., 
 78 N. J. L. 699, 76 Atl. 1067; State v. Su- 
 perior Court of Clarke County, 44 Wash. 108, 
 87 Pac. 40; Chicago & W. M. Ry. Co. v. 
 Huncheon, 130 Ind. 529, 30 N. E. 636 ; Union 
 Elevator Co. v. R. Co., 135 Mo. 353, 36 S. 
 W. 1071 ; Rudolph v. R. Co., 186 Pa. 541, 40 
 Atl. 1083, 47 L. R. A. 7S2 ; and see Bauman 
 v. Ross, 167 U. S. 508, 17 Sup. Ct. 966, 42 
 L. Ed. 270, where the cases are considered 
 by Gray, J. But this rule did not apply 
 when a man owned one parcel in severalty 
 
 and he and his wife the other in entirety, 
 even if the two were used for a common 
 purpose ; Glendenning v. Stahley, 173 Ind. 
 674, 91 N. E. 234 ; and it has been held that 
 the rule does not apply to parcels, not used 
 as a whole for one purpose, when separated 
 by highways; Baker v. R. Co., 236 Pa. 479, 
 84 Atl. 959; or to such parcels separated by 
 a railroad ; Kansas City, M. & O. R. Co. v. 
 Littler, 70 Kan. 556, 79 Pac. 114 ; or a stream 
 of water; St. Louis, M. & S. E. R. Co. v. 
 Aubuchon, 199 Mo. 352, 97 S. W. 867, 116 
 Am. St. Rep. 499, 8 Ann. Cas. 822, 9 L. R. A. 
 (N. S.) 426, and note which repeats the con- 
 clusion of that above cited, that the right 
 to have the parcels treated as one must de- 
 pend on unity of use and dependence of each 
 parcel on the other; Baker v. R. Co., 236 
 Pa. 479, 84 Atl. 959, supra. 
 
 See, generally, as to land injured; 2 Am. 
 R. & C. Cas. 94 ; 5 id. 201 ; property damag- 
 ed ; 25 Am. L. Rev. 924 ; taken or damaged ; 
 27 Am. L. Reg. 391 ; Harman v. City of Oma- 
 ha, 21 Cent. L. J. 130. 
 
 What estate is acquired. Where the con- 
 stitution contains no restriction, a fee or any 
 less estate may be taken, in the discretion 
 of the legislature; Dingley v. City of Bos- 
 ton, 100 Mass. 544; Prather v. Telegraph 
 Co., 89 Ind. 501; Malone v. City of Toledo, 
 34 Ohio St. 541; Patterson v. Boom Co., 3 
 Dill. 465, Fed. Cas. No. 10,829 ; Sweet v. Ry. 
 Co., 79 N. Y. 293; Roanoke City v. Berko- 
 witz, 80 Va. 616; Lewis, Em. Dom. § 277; 
 Rand. Em. Dom. § 205; Cooley, Const. Lira. 
 683. 
 
 It is within the power of the legislature 
 to determine the interest to be taken ; Fair- 
 child v. City of St. Paul, 46 Minn. 540, 49 
 N. W. 325 ; and it may authorize the taking 
 of a fee simple ; Wood v. City of Mobile, 107 
 Fed. 846, 47 C. C. A. 9; In re City of New 
 York, 190 N. Y. 350, 83 N. E. 299, 16 L. R. 
 A. (N. S.) 335; contra, Kellogg v. Malin, 50 
 Mo. 496, 11 Am. Rep. 426; if a fee is taken 
 under the statute, the land may afterwards 
 be devoted to other uses; id.; Rand. Em. 
 Dom. § 209. If the state condemn, a fee 
 is presumed; Haldeman v. R. Co., 50 Pa. 
 425; Craig v. City of Allegheny, 53 Pa. 477; 
 but not when a private corporation does so; 
 Rand. Em. Dom. § 206 ; when the act author- 
 ized a railroad company to take the fee for 
 a right of way, it was a qualified estate 
 which would revert; Kellogg v. Malin, 50 
 Mo. 496, 11 Am. Rep. 426 ; Kellogg v. Malin, 
 62 Mo. 429; but a railroad may be author- 
 ized to take a fee; Raleigh & G. R. Co. v. 
 Davis, 19 N. C. 451. The purpose is some- 
 times said to indicate the estate taken ; Holt 
 v. City Council of Somerville, 127 Mass. 408 ; 
 Brooklyn Park Com'rs v. Armstrong, 45 N. 
 Y. 234, 6 Am. Rep. 70 ; but this is an unsafe 
 criterion of the interest, and the better opin- 
 ion is that it merely defines the use. See 
 New Orleans Pac. Ry. Co. v. Gay, 31 La. 
 Ann. 430; Commissioners of Parks and Bou-
 
 EMINENT DOMAIN 
 
 1029 
 
 EMINKNT DOMAIN 
 
 levards of City of Detroit v. R. Co., 90 Mich. 
 385, 51 N. W. 447 ; New York S. & W. R. Co. 
 v. Trimmer, 53 N. J. L. 1, 20 Atl. 7G1. Uuder 
 a provision that the title should vest, a city 
 took a fee for sewers ; Page v. O'Toole, 144 
 Mass. 303, 10 N. E. sr>l ; but a turnpike com- 
 pany only an easement; Dunham v. Wil- 
 liams, 36 Barb. (X. Y.) 136. An absolute 
 power of alienation, the ear-mark of untram- 
 melled and unconditional ownership lias been 
 supported in land held by a municipal corpo- 
 ration for a park; In re City of Rochester, 
 137 N. Y. 243, 33 X. E. 320; or an alms- 
 house: Heyward v. City of New York, 7 X. 
 Y. 314; De Varaigne v. Fox, 2 Blatchf. 05, 
 Fed. Cas. No. 3,836; when a street which 
 had been taken for a canal was abandoned, 
 the right of the public and the abutters re- 
 vived in the street ; City of Logansport v. 
 Shirk, 88 Ind. 5G3; and land taken for a ca- 
 nal was afterwards used for a street; El- 
 dridge v. City of Binghamton, 42 Hun (N. 
 Y.) 202; Malone v. City of Toledo, 34 Ohio 
 St. 541. It is said that a municipal corpo- 
 ration can condemn tbe fee-simple title of 
 land for streets, but only so as to acquire 
 the absolute control for that purpose and not 
 a proprietary right to sell or devote it to a 
 private use ; Fairchild v. City of St. Paul, 
 4G Minn. 540, 49 N. W. 325. When the fee is 
 taken and the use ceases, the state may au- 
 thorize a sale for other uses, but when only 
 an easement, the land reverts; Lewis, Em. 
 Dom. 596, citing cases ; and so if there is an 
 abandonment ; id. 597. 
 
 The time when payment must be made 
 varies according to the exact terms of the 
 constitutional provision under which pro- 
 ceedings are taken. In the majority of states 
 where there is no express provision it is held 
 that compensation need not be concurrent in 
 time with the taking, it is sufficient if an 
 adequate and certain remedy is provided by 
 which the owner may compel payment of 
 damages; In re Appointment of U. S. Com'rs, 
 96 N. Y. 227 ; and this means reasonable le- 
 gal certainty; Sage v. City of Brooklyn. S9 
 N. Y. 1S9 ; or if there is a definite provision 
 or security for the payment of the compensa- 
 tion; Commissioners' Court of Loundes 
 County v. Boure, 34 Ala. 401 ; Cairo & F. R. 
 Co. v. Turner, 31 Ark. 494. 25 Am. Rep. 564 ; 
 Moody v. R. Co., 20 Fla. 597; Briggs v. Ca- 
 nal Co.. 137 Mass. 71; Orr v. Quimby, 54 N. 
 H. 590 (but Ash v. Cummings, 50 N. H. 591, 
 seems contra) ; Hawley v. Harrall, 19 Conn. 
 142; Ferris v. Bramble, 5 Ohio St. 109; In 
 re Yost, 17 Pa. 524 (contra, as to private 
 roads; In re Clowes' Private Road. 31 Pa. 
 12) ; Tuckahoe Canal Co. v. R. Co.. 11 Leigh 
 (Va.) 42, 36 Am. Dec. 374; Foster v. Rank, 
 57 Vt. 12S; State v. Mclver, 88 N. C. 686; 
 Smeaton v. Martin, 57 Wis. 364, 15 X. W. 403; 
 Great Falls Mfg. Co. v. Garland, 25 Fed. 521. 
 The same rule was formerly followed, in some 
 states in which later constitutions provided 
 for prior payment, or required compensation 
 
 where none was provided for before, as 
 Maryland; Compton v. Railroad, 3 Bland, 
 Ch. (Md.) era v. Armstrong, ; 
 
 1-7: Peo] Le v. u. i •,... :: Mich. 496; Prather 
 v. R. Co., 52 in.i. 16; tes require that 
 
 the owner sball recei 
 entry; Brady v. Bronson, 45 Cal. 
 Fox v. R. Co., 31 Cal. 538, which rei 
 the cases, established a different rule, and 
 was overruled); Vilhac v. R. Co., •",:; Ca 
 City of Paris v. Mason, 37 Tex. 447; Har- 
 ness v. Canal Co., 1 Md. Ch. 248; Hall v. Peo- 
 ple, 57 111. 307; Chicago, St. L. & W. K. Co. 
 v. Gates, 120 111. 86, 11 X. E. 527; but in 
 Maine, while title does not pass, 
 may be taken before payment, and a r< 
 able time — three years being so held — allow- 
 ed therefor; Cushman v. Smith, 34 Me. 247; 
 Riche v. Water Co., 75 Me. 91. It has been 
 held that the state when acting directly may 
 provide that title shall pass wlien tbe 
 amount is ascertained, it being presumed 
 that payment will be made by the .state; 
 Ballou v. Ballou, 78 X. Y. 325 ; but any such 
 declaration in a statute is controlled by tbe 
 constitution, and it was held in a New York 
 case that payment must be prior to or con- 
 current with the taking ; Garrison v. New- 
 York, 21 Wall. (U. S.) 196, 22 L. Ed. 612. 
 In many state constitutions there is a dis- 
 tinction between the direct exercise of the 
 power by the government and the del' 
 power conferred on private corpor;. 
 Under such a provision it was said that in 
 both cases the sovereign power is coupled 
 with the correlative duty; State v. City of 
 Perth Amboy, 52 N. J. L. 132, 18 Atl. 670; 
 but municipal corporations must settle first 
 when exercising delegated power ; Id. ; Low- 
 eree v. City of Newark, 3S X. J. L. 151. And 
 it is said by a writer of authority, "the al- 
 most invariable, and certainly the jus!, 
 course being to require payment to precede 
 or accompany the act of appropriation:" 2 
 Dill. Mun. Corp. 615. Generally, however, 
 when the compensation is to be paid by the 
 state or is a charge upon the funds of a mu- 
 nicipality that is held sufficient: Haverhill 
 Bridge Proprietors v. County Com'rs, 103 
 Mass. 120, 4 Am. Rep. 518; State v. Mclver, 
 88 N. C. 686; Mayor, etc., of Pittsburgh v. 
 Scott, 1 Pa. 309; In re Mayor, etc., of City 
 of Now York. 99 X. Y. 560, 2 X. E. 612; Jef- 
 fersonville, M. & I. R. Co. v. Daugherty, 40 
 Ind. 33; Brock v. Hishen, 40 Wis. 674 : Long 
 v. Fuller, 6S Pa. 170; but if tbe available 
 resources are shown to be insufficient an en- 
 try may be enjoined ; Keene v. Borough of 
 Bristol. 26 Pa. 46. 
 
 The fact that there is a limitation of the 
 amount to be expended does not invalidate 
 the law for taking property; U. S. v. By. 
 Co., 160 U. S. 668, 16 Sup. Ct. 427, 40 L. Ed. 
 576. 
 
 When the title passes. It naturally fol- 
 lows that no title can be acquired under the 
 proceedings until the compensation is paid
 
 EMINENT DOMAIN 
 
 1030 
 
 EMINENT DOMAIN 
 
 or so secured as to be treated in law as the 
 equivalent of payment. Accordingly when 
 the title is permitted to vest before payment, 
 it is said to be subject to a claim for com- 
 pensation in the nature of a vendor's lien 
 enforcible in equity ; Lewis, Em. Dom. § G20, 
 and note citing cases. And a sale or mort- 
 gage of the property could only be made sub- 
 ject to such prior right of the landowner, 
 which is maintained by some courts on the 
 theory of a lien, and by otbers on that of 
 title remaining in the owner; id. § 621. In 
 Pennsylvania, however, an extreme doctrine 
 prevails; the appropriation is valid and ef- 
 fectual where compensation is paid or se- 
 cured ; Levering v. It. Co., 8 W. & S. (Pa.) 450 ; 
 McClinton v. R. Co., 66 Pa. 404; Dimmick 
 v. Brodhead, 75 Pa. 464; and title passes 
 when the bond is approved by the court un- 
 der the statute; Fries v. Mining Co., 85 Pa. 
 73; and remains vested even if the bond is 
 found to be valueless ; Wallace v. R. Co., 138 
 Pa. 168, 22 Atl. 05 ; and there is no lien for 
 compensation; Appeal of Hoffman, 118 Pa. 
 512, 12 Atl. 57. By the act of location the 
 corporation acquires a conditional title as 
 against the land-owner, which becomes ab- 
 solute upon making or securing compensa- 
 tion ; Williamsport & N. B. R. Co. v. R. Co., 
 141 Pa. 407, 21 Atl. 645. 12 L. R. A. 220 ; as 
 against third parties there is a valid loca- 
 tion after entry made, lines run, map pre- 
 pared, and a report made to the directors 
 and adopted by them; Pittsburgh, V. & C. 
 Ry. Co. v. R. Co., 150 Pa. 331, 28 Atl. 155 ; 
 but running a line, making a map, and a re- 
 port to the directors, not acted on, did not 
 confer title to the location to justify an in- 
 junction to restrain another company from 
 taking the land for a railway, though the 
 land was owned by the plaintiff company; 
 Williamsport R. Co. v. R. Co., 141 Pa. 407, 
 21 Atl. 645, 12 L. R. A. 220. 
 
 If a land-owner, knowing that a railroad 
 company has entered upon his land, and is 
 engaged in constructing its road without hav- 
 ing complied with a statute requiring either 
 payment by agreement or proceedings to con- 
 demn, remains inactive and permits it to go 
 on and expend large sums in the work, he 
 cannot maintain either trespass or eject- 
 ment, and will be restricted to a suit for 
 damages; Roberts v. R. Co., 158 U. S. 1, 15 
 Sup. Ct. 756, 39 L. Ed. 873. 
 
 The actual cash market value, at the time, 
 of property actually taken must be allowed; 
 Burt v. Wigglesworth, 117 Mass. 302; Mis- 
 sissippi River Bridge Co. v. Ring, 58 Mo. 
 491 ; Cbicago, K. & W. R. Co. v. Parsons, 51 
 Kan. 408, 32 Pac. 1083 ; Chicago & E. R. Co. 
 v. Jacobs, 110 111. 414 ; Mississippi & R. Riv- 
 er Boom Co. v. Patterson, 98 U. S. 403, 25 
 L. Ed. 206. It has been said that the true 
 criterion of market value is the sum which 
 the property would bring if sold at auction, 
 conducted in the fairest possible way; Low 
 
 v. Railroad, 63 N. H. 557, 3 Atl. 739; but 
 this is not the result of the best considered 
 cases. "Market value means the fair value 
 of the property as between one who wants to 
 purchase and one who wants to sell an ar- 
 ticle; not what could be obtained for it un- 
 der peculiar circumstances; not its specula- 
 tive value; not a value obtained from the 
 necessity of another. Nor is it to be limited 
 to that price which the property would bring 
 when forced off at auction under the ham- 
 mer;" Lawrence v. Boston, 119 Mass. 126; 
 it is measured by the difference between 
 what it would have sold for before the in- 
 jury, and what it would have sold for as af- 
 fected by it; Setzler v. R. Co., 112 Pa. 56, 
 4 Atl. 370; what would be accepted by one 
 desiring but not obliged to sell and paid by 
 one under no necessity of buying; Pitts- 
 burgh, V. & C. Ry. Co. v. Vance, 115 Pa. 325, 
 8 Atl. 764; Little Rock Junction Ry. v. 
 Woodruff, 49 Ark. 3S1, 5 S. W. 792, 4 Am. 
 St. Rep. 51 ; it is not to be measured by the 
 interest or necessity of the particular own- 
 er; Pittsburgh & L. E. R. Co. v. Robinson, 
 95 Pa. 426; nor, on the other hand, by those 
 of the appropriator ; Montgomery County v. 
 Bridge Co., 110 Pa. 54, 20 Atl. 407; San 
 Diego Land & Town Co. v. Neale, 88 Cal. 
 50, 25 Pac. 977, 11 L. R. A. 604 ; Selma, R. & 
 D. R. Co. v. Keith, 53 Ga. 17S ; Everett v. R. 
 Co., 59 la. 243, 13 N. W. 109; when these 
 principles are fairly applied due considera- 
 tion may be given to auction value; Pitts- 
 burgh, V. & C. Ry. Co. v. Vance, 115 Pa. 325, 
 8 Atl. 7G4 ; but its availability for other spe- 
 cial purposes to which it is particularly 
 adapted by reason of "its natural advanta- 
 ges, or its artificial improvements, or its in- 
 trinsic character," may be considered as an 
 element of value; Lewis, Em. Dom. § 479, 
 and cases cited; as, for railroad approaches 
 to a large city; Webster v. R. Co., 116 Mo. 
 114, 22 S. W. 474; Mississippi River Bridge 
 Co. v. Ring, 58 Mo. 491 ; or for a bridge site ; 
 Young v. Harrison, 17 Ga. 30; Little Rock 
 Junction Ry. v. Woodruff, 49 Ark. 381, 5 S. 
 W. 792, 4 Am. St. Rep. 51 ; or a mill site ; 
 Louisville, N. O. & T. R. Co. v. Ryan, 64 
 Miss. 404, 8 South. 173 ; so also its situation 
 and surroundings for railroad purposes; 
 Currie v. R. Co., 52 N. J. L. 391, 20 Atl. 56, 
 19 Am. St. Rep. 452; Cohen v. R. Co., 34 
 Kan. 158, 8 Pac. 138, 55 Am. Rep. 242 ; John- 
 son v. R. Co., Ill 111. 413 ; or market-garden- 
 ing; Chicago & E. R. Co. v. Jacobs, 110 111. 
 414; or subdivision into village lots; Wat- 
 son v. Ry. Co., 57 Wis. 332, 15 N. W. 46S; 
 South Park Com'rs v. Dunlevy, 91 111. 49; 
 Cincinnati & S. Ry. Co. v. Longworth's Ex'rs, 
 30 Ohio St. 108; or in case of a pond, for 
 ice or milling, there being no other one near ; 
 Trustees of College Point v. Dennett, 5 
 Thomp. & C. (N. Y.) 217; or for warehouse 
 purposes; Russell v. R. Co., 33 Minn. 210, 
 22 N. W. 379. When the water of a stream
 
 EMINENT DOMAIN 
 
 1031 
 
 EMINENT DOMAIN 
 
 running through a farm was taken by a vil- 
 lage for its waterworks, the owner was en- 
 titled to damages, not only for being deprived 
 of the water for farm purposes, but also 
 for being deprived of the opportunity to sell 
 water rights to prospective purchasers of vil- 
 lage lots plotted out for sale in a part of the 
 farm; Bridgeman v. Village of Ilardwick, 
 67 Vt. G53, 31 Atl. 33. The pollution of a 
 stream so as to render it unlit for use in a 
 paper mill, resulting from the opening of a 
 railroad through the hind, was a proper ele- 
 ment to be considered in estimating the dam- 
 ages; Rudolph v. R. Co., 186 Pa. 541, 40 Atl. 
 1083, 47 L. R. A. 782. So its adaptability for 
 the particular purpose for which the con- 
 demnation is bought may be shown, as is- 
 lands well situated for boom purposes; Mis- 
 sissippi & R. River Boom Co. v. Patterson, 
 98 U. S. 403, 25 L. Ed. 20G ; or the bed of an 
 old canal desired for a railroad; In re New 
 York, L. & W. R. Co., 27 Hun (N. Y.) 116. 
 But mere speculative opinions and considera- 
 tions will be excluded from consideration ; 
 Gardner v. Brookline, 127 Mass. 358; Tide 
 Water Canal Co. v. Archer, 9 G. & J. (Md.) 
 479; Chicago & E. R. Co. v. Blake, 116 111. 
 163, 4 N. E. 488; Pittsburgh & W. R. Co. v. 
 Patterson, 107 Pa. 461 ; Watson v. R. Co., 57 
 Wis. 332, 15 N. W. 468; New Jersey R. Co. 
 v. Suydam, 17 N. J. L. 25. 
 
 See, generally. Peoria Gas Light & Coke Co. 
 v. R. Co., 146 111. 372, 34 N. E. 550, 21 L. R. 
 A. 373; 57 Am. & Eng. R. R. Cas. SOS, n; 2 
 Am. R. R. & Corp. Rep. 744, n. 
 
 Assessment of benefits on the remainder of 
 a tract of which part is taken is prohibited 
 by the constitution in some states, either gen- 
 erally, as in Iowa and Ohio, in favor of any 
 corporation, as in Arkansas. Kansas, and 
 South Carolina, or any other than municipal, 
 as in California, North Dakota, and Wash- 
 ington. In the other states there is a di- 
 versity of decisions which have been thus 
 classified, as : 1. Not considered. 2. Spe- 
 cial benefit is set off against damages to the 
 remainder but not against the value of the 
 part taken. 3. General or special, as in the 
 last class. 4. Special, against both damages 
 to remainder and value of part taken. 5. 
 General and special, as in the last class. 
 Lewis, Em. Dom. § 465. 
 
 In the first class the benefit Is excluded 
 because compensation is held to be money ; 
 Brown v. Beatty, 34 Miss. 227, 241, 69 Am. 
 Dec. 3S9; Board of Levee Com'rs for Yazoo- 
 Mississippi Delta v. Harkieroads, 62 Miss. 
 807; Burlington & C. R. Co. v. Schweikart, 
 10 Cal. 178. 14 Pac. 320; Dulaney v. Nolan 
 County, 85 Tex. 225, 20 S. W. 70; Jones v. 
 R. Co., 30 Ga. 43; Paducah & M. R. Co. v. 
 Stovall, 12 Heisk. (Tenn.) 1. In some states 
 the constitution prohibits the deduction of 
 benefits; though in some of them it is per- 
 mitted in favor of public corporations; 
 Nichols, Em. Dom. § 278, where these states 
 are enumerated. 
 
 The second rule whieb obtains has been 
 justly criticised as illogical; I.. 
 Dom. § 467; but it rests upon the theory 
 that for the part taken compensation in mon- 
 ey is required, while fur incidental damage 
 the legislature may prescribe the rule of 
 compensation. This was the doctrine laid 
 down in T< which, with several oth- 
 
 tes, adheres to it: Woodfolk v. R. Co., 
 
 2 Swan (Tenn.) -1^2; Bobbins v. It. I 
 Wis. 636; Shipley v. R. Co., 34 Md 
 Fremont, E. & M. V. It. Co. v. Wha] 
 
 Neb. 585, 10 N. W. 4:»i ; Chicago, K. & N. 
 R. Co. v. Wiebe, 25 Neb. 5i_>, -ii NT. W. u:t7. 
 
 The third class rests upon the same 
 of requiring compensation in money for the 
 part taken, but treating the claim for dam- 
 age to the remainder as consequential and 
 properly subject to the set-off of all advan- 
 tages; and in Kentucky, from which comes 
 the leading case, a judgment was rei 
 for an instruction excluding general bene- 
 fits ; Henderson & N. R. Co. v. Dickerson, 
 
 17 B. Monr. (Ky.) 173, 00 Am. Dec. 1 !S; City 
 Council of Augusta v. Marks, 50 Ga. 612 
 (but see Young v. Harrison, 17 Ga. 30, in 
 which a different doctrine was applied, 
 which was passed without mention in Jones 
 v. Wills Yal. R. Co., 30 Ga. 43, which Laid 
 down the rule afterwards adhered to) ; Buf- 
 falo, B., B. & C. R. Co. v. Ferris. 20 Tex. 
 5SS; Tait v. Matthews, 33 Tex. 112; City of 
 Paris v. Mason. 37 Tex. 447 ; Texas & St L. 
 R. Co. v. Matthews, GO Tex. 215; but see 
 Bourgeois v. Mills, 60 Tex. 76; New Orleans 
 Pac. Ry. Co. v. Gay, 31 La. Ann. 430. 
 
 The fourth rule allows special benefits 
 against both the value of the part taken 
 and damage to the remainder, because just 
 compensation is construed to mean recom- 
 pense for the net resulting injury, and ex- 
 cludes a share of the general advantage, be- 
 cause to allow it woidd be to distribute it 
 unequally, charging those whose land is tak- 
 en for that which the rest of the community 
 enjoy without cost ; Addon v. R. R., 55 N. 11. 
 413, 20 Am. Rep. 220; Meacham v. R. Co., 4 
 Cush. (Mass.) 291; Clark v. City of Worces- 
 ter, 125 Mass. 226; Cross v. Plymouth Coun- 
 ty, 125 Mass. 557; Trinity College v. City 
 of Hartford. 32 Conn. -152; Gautier v. I 
 55 N. J. L. 88, 25 Atl. 322, 17 L. B. A. 785; 
 Setzler v. R. Co., 112 Pa. 56, 4 A; 
 (which lays down the rule with great clear- 
 ness not only on this point but in confining 
 the consideration of Inconvenience and ad- 
 vantage to the effect of both upon the mar- 
 ket value) ; Freedle v. R. Co., 19 N. I 
 Wyandotte. K. C. & X. W. By. Co. v. Waldo, 
 70 Mo. 629; Daugherty v. Brown, M V 
 
 3 S. W. 210; Winona & St. P. B. Co. v. Wal- 
 dron, 11 Minn. 515, (Gil. 392), 88 Am. Dec. 
 100; Arbrush v. Town of Oakdale, 28 Minn. 
 Gl, 9 N. W. 30; Beekmau v. Jackson County, 
 
 18 Or. 283, 22 Pae. 1074 (but see Putnam v. 
 Douglas County. Or. 328, 25 Am. Rep. 527). 
 See L. R. 2 C. P. 638.
 
 EMINENT DOMAIN 
 
 1032 
 
 EMINENT DOMAIN' 
 
 The last class permits all benefits to be 
 set off against all damages of either kind, 
 placing the rule on natural equity, and in a 
 leading case (Young v. Harrison, 17 Ga. 30, 
 afterwards apparently overruled as stated 
 supra) , it is argued that the term compensa- 
 tion comes from the civil law which so con- 
 strues it. This rule is accepted by many 
 courts which, among other reasons, hold 
 that compensation does not mean money but 
 includes any means of recompense: Califor- 
 nia Pac. R. Co. v. Armstrong, 46 Cal. 85; 
 Whiteman's Ex'x v. R. Co., 2 Harr. (Del.) 
 514, 33 Am. Dec. 411; Kramer v. Ry. Co., 5 
 Ohio St. 140; Piatt v. Pennsylvania Co., 43 
 Ohio St. 228, 1 N. E. 420 (before the consti- 
 tution of 1831); Ross v. Davis, 97 Ind. 79; 
 Rassier v. Grimmer, 130 Ind. 219, 23 N. E. 
 866, 29 N. E. 918; Greenville & C. R. Co. v. 
 Partlow, 5 Rich. (S. C.) 428; White v. R. 
 Co., 6 Rich. (S. C.) 47. See Bourgeois v. 
 Mills, 60 Tex. 76. In New York this rule 
 applies to cases where land is taken by the 
 state and municipal corporations; Genet v. 
 City of Brooklyn, 99 N. Y. 296, 1 N. E. 777 ; 
 Eldridge v. City of Binghampton, 120 N. Y. 
 309, 24 N. E. 462 ; but in the case of private 
 corporations the third rule seems to apply; 
 Washington Cemetery v. R. Co., 68 N. Y. 
 591 ; Newman v. Ry. Co., 118 N. Y. 618, 23 
 N. E. 901, 7 L. R. A. 289; Bohm v. R. Co., 
 129 N. Y. 576. 29 N. E. 802, 14 L. R. A. 344. 
 See Heath v. Barmore, 50 N. Y. 302. In Illi- 
 nois the cases prior to 1870 were under the 
 fifth rule; Alton & S. R. Co. v. Carpenter, 14 
 111. 190; and since the constitution of that 
 year and a subsequent statute it has been 
 held that benefits were prohibited as against 
 the value of land taken; Carpenter v. Jen- 
 nings, 77 111. 250; that general benefits can- 
 not be set off against either value or dam- 
 age; Keitnsburg & E. R. Co. v. Henry, 79 
 111. 290; and that special damage may be 
 charged against the damage to the residue; 
 Lewis, Em. Dom. § 470, where the cases are 
 collected and analyzed. 
 
 The last rule enumerated seems to be ap- 
 proved by the federal courts ; Chesapeake & 
 O. Canal Co. v. Key, 3 Cra. C. C. 599, Fed. 
 Cas. No. 2,649 ; Kennedy v. Indianapolis, 103 
 U. S. 599, 26 D. Ed. 550; and upon candid 
 consideration it must be admitted that if ben- 
 efits are to be allowed at all it is the only 
 logical doctrine. This seems also to be the 
 conclusion of the writer whose classification 
 of the decisions is here given, and to whose 
 discussion of the whole subject reference 
 may profitably be made; Lewis, Em. Dom. § 
 471. The subject was considered in the 
 United States Supreme Court at length by 
 Gray, J., who held that in applying the law 
 to the District of Columbia it was proper to 
 "take into consideration, by way of lessening 
 the whole or either part of the sum due him, 
 any special and direct benefits, capable of 
 present estimate and reasonable computa- 
 tion, caused by the establishment of the high- 
 
 way to the part not taken ;" Bauman v. Ross, 
 167 U. S. 548, 17 Sup. Ct. 966, 42 L. Ed. 270. 
 This view also prevailed in In re City of 
 New York, 190 N. Y. 350, S3 N. E. 299, 16 L. 
 R. A. (N. S.) 335; Taber v. R. Co., 28 R. I. 
 269, 67 Atl. 9. 
 
 Damage to property injured but not phys- 
 ically taken. A question of great impor- 
 tance arises either under the later constitu- 
 tional provisions for compensation for injury 
 as well as actual taking, or under the exten- 
 sion of the meaning of the word taking to 
 include consequential damages so called, 
 when the injury to property is so great and 
 permanent as practically to deprive the own- 
 er of all use and enjoyment of it. 
 
 In such cases the only remedy of the prop- 
 erty owner, in the absence of legislation, is 
 a common-law action, and for permanent or 
 continuing injury trespass is totally inade- 
 quate, as is evidenced by the fact that to re- 
 strain it when continuous is a recognized 
 ground of equitable interference. In many 
 cases it is held that prospective damages 
 cannot be recovered, and the property owner 
 is thus put to the necessity of resorting to 
 repeated actions, but when the trespass is 
 the result of the exercise of a public use au- 
 thorized by statute this remedy is not only 
 unsatisfactory but illogical. Accordingly it 
 is held in many cases that such damage be- 
 ing of a permanent nature there should be 
 but one recovery for all damages past, pres- 
 ent, and future; and it has been held that 
 they may be allowed. An action on the case 
 is the proper remedy in such cases, but the 
 measure of damages applied is not uniform, 
 though when the liberal rule referred to is 
 adopted the payment vests in the defendant 
 a right to maintain its works and operates 
 as a bar to further suits. In some cases 
 such an action has also been held to have 
 the effect of statutory proceedings for the as- 
 sessment of compensation ; Chicago & E. I. 
 R. Co. v. Loeb, 118 111. 203, 8 N. E. 460, 59 
 Am. Rep. 341; Penn. Mut. Life Ins. Co. v. 
 Heiss, 141 111. 35, 31 N. E. 138, 33 Am. St. 
 Rep. 273. This subject is, however, involved 
 in great confusion, which should undoubted- 
 ly be removed by legislative enactments pro- 
 viding for the acquisition of the right to 
 cause, and the assessment of compensation 
 for, permanent injury to property whenever 
 consequential damages are provided for by 
 constitution or statute, or recognized by the 
 courts. As to this subject, see discussions 
 with copious citations of cases in Lewis, Em. 
 Dom. § 624; Rand. Em. Dom. § 308; 26 Am. 
 L. Reg. 281, 345. 
 
 Who are proper and necessary parties. 
 The compensation must be paid to the true 
 owner as on that the title depends ; Hatch v. 
 Mayor, 82 N. Y. 436; South Park Com'rs v. 
 Todd, 112 111. 379 ; Searl v. School Dist, 133 
 U. S. 553, 10 Sup. Ct. 374, 33 L. Ed. 740; 
 and if paid to the wrong person, it may be 
 recovered from him by one having an inter-
 
 EMINENT DOMAIN 
 
 1033 
 
 EMINENT DOMAIN 
 
 est; De Peyster v. Mali, 92 N. Y. 202; Sher- 
 wood v. City of Lafayette, 109 Ind. 411, 10 
 N. E. 89, 58 Am. Rep. 414; but if title is 
 doubtful, it may be paid into court; Jones 
 v. R. Co., 41 Fed. 70; In re Department of 
 Parks, 73 N. Y. 500; and if afterwards paid 
 out wrongly the person who paid it in is not 
 liable; U. S. v. Dunnington, 14G U. S. 33S, 
 13 Sup. Ct. 79, 36 L. Ed. 996. 
 
 The general principle is that the neces- 
 sary parties to a proceeding, independent of 
 statutory requirements, are all persons hav- 
 ing an interest in the property taken, as pro- 
 prietors, or such as is recognized by the law 
 of the state as property ; Lewis, Em. Dom. 
 § 317. When the ownership is divided, each 
 is entitled to his share, as life-tenant and re- 
 mainderman ; Miller v. City of Asheville, 
 112 N. C. 759, 16 S. E. 762; Kansas City, S. 
 & M. R. Co. v. Weaver, 86 Mo. 473 ; dowress 
 after admeasurement ; Borough of York v. 
 Welsh, 117 Pa. 174, 11 Atl. 390 ; but not be- 
 fore the dower is assigned; Todemier v. As- 
 pinwall, 43 111. 401; and only as against the 
 award when it is inchoate; Wheeler v. Kirt- 
 land, 27 N. J. Eq. 534. The interest of a 
 tenant must be compensated ; Frost v. Earn- 
 est, 4 Wbart. (Pa.) 86; if the lease has ac- 
 tual value to him; Corrigan v. City of Chi- 
 cago, 144 111. 537, 33 N. E. 746, 21 L. R. A. 
 212; sometimes separately; Atchison, T. & 
 S. F. R. Co. v. Schneider, 127 111. 144, 20 N. 
 E. 41, 2 L. R. A. 422; and sometimes by ap- 
 portionment of the entire amount; Edmands 
 v. Boston, 108 Mass. 535. 
 
 When part of land under lease is taken, 
 the lease is not terminated or the tenant dis- 
 charged ; Stubbings v. Village of Evanston, 
 136 111. 37, 26. N. E. 577, 11 L. R A. 839, 29 
 Am. St. Rep. 300 ; but both he and the lessor 
 are entitled to compensation for their re- 
 spective losses ; Patterson v. City of Boston, 
 20 Pick. (Mass.) 159; Foote v. City of Cin- 
 cinnati, 11 Ohio 408, 38 Am. Dec. 737 : Work- 
 man v. Mifflin, 30 Pa. 362; 1 Thayer. Cas. 
 Const. L. 90S. See Rand. Em. Dom. § 304; 
 Corrigan v. City of Chicago, 144 111. 537, 33 
 N. E. 746, 21 L. R. A. 212, with note on 
 rights of tenants, etc., in such cases ; 5 Am. 
 R. R. & Corp. Cas. 208, note, as to grantor 
 and grantee, and 20 Am. St. Rep. 304, note, 
 as to leased premises. See also 29 Am. L. 
 Rev. 351, as to the abatement of rent when 
 leased premises are appropriated. 
 
 As to mortgagees the decisions lack both 
 uniformity and consistency, and this result 
 is largely clue to the differing views taken 
 of the position of a mortgagee before the 
 law. As between the parties to the mortgage 
 the award takes the place of the land and 
 the lien attaches to it ; Astor v. Miller, 2 
 Paige Ch. (N. Y.) 68; Gimbel v. Stolte. 59 
 Ind. 453 ; Chicago, M. & St. P. R. Co. v. Bak- 
 er, 102 Mo. 560, 15 S. W. 64 ; Union Mut. Life 
 Ins. Co. v. Slee, 323 111. 95, 13 N. E. 222; 
 as to all rights and interests; Utter v. Rich- 
 mond, 112 N. Y. 610, 20 N. E. 554. The dam- 
 
 ages should be apportioned by the jury be- 
 tween owner, lessee, mortgagee, etc; Rentz 
 v. Detroit, 4S Mich. 317, 12 N. W. 694, '.'11. 
 In some cases the remainder of the land 
 must be exhausted before the moi 
 resort to the fund; Bank of Auburn v. Hub- 
 erts, 44 N. Y. 192 ; or to the CO land ; 
 
 v. R. Co., 20 Neb. - 
 and the mortgagee, if not a party to the 
 proceedings, may appropriate the fund; 
 Sawyer v. Landers, 56 la. 422, '.' N. W 
 Bright v. Piatt, 32 N. J. 
 the land has been sold and bought in I 
 mortgagee he loses all claim to the fund and 
 new proceedings must be taken to con 
 his interest; Lehigh Coal & Nav. Co. v. R. 
 Co., 35 N. J. Eq. 379. As affecting the title 
 of the appropriator who has been said to 
 take no better title than an innocent pur- 
 chaser for value; Severin v. Cole, 38 la. 463; 
 and must protect himself against the claim 
 of the mortgagee ; Wooster v. R. Co., 57 Wis. 
 311, 15 N. \Y. 101; the more reasonable opin- 
 ion would seem to be that the mortgagee is a 
 necessary party ; if in possession he certainly 
 is; In re Parker, 30 N. H. S4; Ballard v. Bal- 
 lard Yale Co., 5 Gray (Mass.) 40S: or after 
 condition broken ; Adams v. R. R. Co., 57 Yt. 
 248 ; in other cases to be bound he must 
 have notice; Siman v. Rhoades, 24 Minn. 25; 
 Piatt v. Bright, 29 N. J. Eq. 12S: Warwick 
 Institution for Savings v. City of Providence, 
 12 R. I. 144; Wade v. Hennessy, 53 Yt. 207; 
 Sherwood v. City of Lafayette, 109 Ind. Ill, 
 10 N. E. 89, 58 Am. Rep. 414; Wilson v. Ry. 
 Co., 67 Me. 35S; L. R. 1 Eq. 143; contra, 
 Parish v. Gilmanton, 11 N. H. 293 : Keystone 
 Bridge Co. v. Summers. 13 W. Ya. 47''. ; Whit- 
 ing v. City of New Haven, 45 Conn. 303; 
 Farnsworth v. City of Boston, 126 Mass. 1 ; 
 Read v. City of Cambridge, id. 427; Schu- 
 niacker v. Toberman, 56 Cal. 508 ; Bank of 
 Auburn v. Roberts, 44 N. Y. 192. See Lewis, 
 Em. Dom. § 324; IS L. R. A. 113, note. It 
 was held that the appropriator must see to 
 the discharge of the mortgage and may pay 
 it off or keep the money until it is due ; In 
 re John & Cherry Sts., 19 Wend. (N. Y.1 
 or.!); and he may require or provide for its 
 satisfaction; Devlin v. City of New York, 
 131 N. Y. 127, 30 N. E. 43. It has even been 
 held that a mortgagee cannot move for con- 
 sequential damages to mortgaged property 
 when the mortgagor has without fraud set- 
 tled with the company ; Knoll v. Ry. Co., 
 121 Pa. 467, 15 Atl. 571, 1 L. R. A. 366. 
 
 Judgment liens may be divested by the 
 proceedings, and the creditor need not be 
 made a party; Watson v. R. Co., 47 N. V. 
 137, 102. This is the leading case and well 
 states the reasons on which this settled prin- 
 ciple is based. See also Gimbel v. Stolte. 59 
 Ind. 446; Bean v. Kulp. 7 Phila. (Pa.) 650; 
 Lewis. Em. Dom. § 325 : Rand. Em. Dom. §§ 
 302, 340. As to what interests may be con- 
 demned, see. further, supra. 
 
 Notice and procedure. It is a general rule
 
 EMINENT DOMAIN 
 
 1034 
 
 EMINENT DOMAIN 
 
 that notice of proceedings must be given to 
 the owner of property to be taken ; Lewis, 
 Em. Dom. § 363 ; Rand. Em. Dom. § 333 ; 
 though a few cases hold contrary to the 
 otherwise uniform course of decisions ; Wil- 
 son v. It. Co., 5 Del. Ch. 524 ; George's Creek 
 Coal & Iron Co. v. Coal Co., 40 Md. 425, 437 ; 
 New Orleans, J. & G. N. R. Co. v. Hemphill, 
 35 Miss. 17; Johnson v. R. Co., 23 111. 202. 
 In the Delaware case there was actual no- 
 tice, though it was held that the act need 
 not require it; in the Mississippi case the 
 proceeding is considered as in rem, which is 
 treated as actual notice, and the Illinois case 
 is in effect though not expressly overruled 
 in Wilson v. R. Co., 59 111. 273, and Chicago 
 & A. R. Co. v. Smith, 78 111. 96. These cases 
 have been termed "sporadic decisions," by 
 which the current of authority is not dis- 
 turbed; Rand. Em. Dom. § 333. See Due 
 Process of Law. See also Lewis, Em. Dom. 
 § 364 ; where the cases are cited, and, for 
 other cases cited in support of the view that 
 notice need not be required in the act; Peo- 
 ple v. Smith, 21 N. Y. 595 ; Harper v. R. Co., 
 2 Dana (Ky.) 227 ; Kramer v. R. Co., 5 Ohio 
 St. 140; Beekman v. R. Co., 3 Paige (N. T.) 
 45, 22 Am. Dec. 679. The questions whether 
 the property shall be taken and what com- 
 pensation shall be paid need not be tried by 
 a jury ; Raleigh & G. R. Co. v. Davis, 19 N. 
 C. 451 ; Whiteman's Ex'x v. R. Co., 2 Harr. 
 (Del.) 514, 33 Am. Dec. 411; the constitution 
 does not describe the mode or means by 
 which compensation shall be ascertained; 
 these therefore can only be prescribed by the 
 legislature ; Wilson v. R. Co., 5 Del. Ch. 524 ; 
 under the constitution of the United States, 
 a jury is not necessary; U. S. v. Engerman, 
 46 Fed. 176 ; and it cannot be demanded as a 
 matter of right ; State v. Lyle, 100 N. C. 497, 
 6 S. E. 379 ; Backus v. Lebanon, 11 N. H. 19, 
 35 Am. Dec. 4G6 L , Morris v. Heppenheimer, 
 54 N. J. L. 2GS, 23 Atl. 664. 
 
 It was recently held that due process of 
 law is furnished and equal protection of the 
 law given in such proceedings when the 
 course pursued for the assessment and col- 
 lection of taxes is that customarily provid- 
 ed in the state, for then the party charged 
 has an opportunity to be heard ; Fallbrook 
 Irr. Dist. v, Bradley, 164 U. S. 112, 17 Sup. 
 Ct. 56, 41 L. Ed. 369; and where by state law 
 a burden is imposed upon property for the 
 public use, "whether it be for the whole state 
 or some more limited portion of the com- 
 munity, and those laws provide for a mode 
 of confirming or contesting the charge thus 
 imposed, in the ordinary courts of justice 
 with such notice to the person, or such pro- 
 ceeding in regard to the property as is ap- 
 propriate to the nature of the case, the judg- 
 ment in such proceedings cannot be said to 
 deprive the owner of his property without 
 due process of law, however obnoxious it 
 may be to other objections ; " id. 
 
 As to procedure generally, see Rand. Em. 
 Dom. ch. xi. ; Lewis, Em. Dom. chs. xvii.- 
 xix. ; Mills, Em. Dom. ch. xi. ; San Diego 
 Land & Town Co. v. Neale, 3 L. R. A. 83; 
 14 A. & E. R. R. Cas. 378, 384, 392, note; 
 and for some cases as to the necessity of 
 notice and a hearing to constitute due pro- 
 cess of law, see 2 L. R. A. (Ind.) 655, note; 
 3 L. R. A. (Mont.) 194, note; 11 L. R. A. 224, 
 note. 
 
 The power need not be exhausted in the 
 first instance; New York, H. & N. R. Co. v. 
 R. Co., 36 Conn. 196; and a railroad may 
 subsequently take land for laying additional 
 tracks when necessary ; Railway Co. v. Pet- 
 ty, 57 Ark. 359, 21 S. W. 884, 20 L. R. A. 
 434 ; or a canal company for a new supply 
 of water; Proprietors of Sudbury Meadows 
 v. Canal, 23 Pick. (Mass.) 36; or a company 
 may take more than at present required, 
 having view to future and other needs, and 
 use of part is not an abandonment; Pitts- 
 burgh, Ft. W. & C. R. v. Peet, 152 Pa. 488, 
 25 Atl. 612, 19 L. R. A. 467. 
 
 See, generally, Mills, Lewis, Randolph, 
 Nichols, Eminent Domain ; Cooley, Const. 
 Lim. ch. xv. ; Gould, Waters, ch. viii. ; Red- 
 field, Railways, Part 3; Wood, Railways, ch. 
 xiv. ; Harris, Damages ; Thompson, High- 
 ways ; Police Power ; Taxation ; Railroad ; 
 Due Process of Law ; Dedication. 
 
 EMISSION. In Medical Jurisprudence. 
 The act by which any matter whatever is 
 thrown from the body : thus, it is usual to 
 say, emission of urine, emission of semen, 
 etc. 
 
 Emission is not necessary in the commis- 
 sion of a rape to complete the offence ; 1 
 Hale, P. C. 628; 4 C. & P. 249; 9 id. 31; 
 Rodgers v. State, 30 Tex. App. 510, 17 S. W. 
 1077 ; Territory v. Edie, 6 N. M. 555, 30 Pac. 
 851 ; State v. Dalton, 106 Mo. 463, 17 S. W. 
 700; [1891] 2 Q. B. 149. It is, however, es- 
 sential in sodomy ; 12 Co. 36 ; People v. Hodg- 
 kin, 94 Mich. 27, 53 N. W. 794, 34 Am. St. 
 Rep. 321. But see Com. v. Thomas, 1 Va. 
 Cas. 307. As to adultery, see that title. 
 
 EMIT. To put out; to send forth. 
 
 The tenth section of the first article of the con- 
 stitution contains various prohibitions, among which 
 is the following: "No state shall emit bills of cred- 
 it." To emit bills of credit is to issue paper intend- 
 ed to circulate through the community for its ordi- 
 nary purposes, as money, which paper is redeemable 
 at a future day. Craig v. Missouri, 4 Pet. (U. S.) 
 410, 432, 7 L>. Ed. 903 ; Briscoe v. Bank, 11 Pet. (U. 
 S.) 257, 9 L. Ed. 709 ; Ramsey v. Cox, 28 Ark. 369 ; 
 Linn v. Bank, 1 Scam. (111.) 87, 25 Am. Dec. 71; 
 Story, Const. § 1358. See Bills of Credit. 
 
 EMMENAG0GUES. In Medical Jurispru- 
 dence. The name of a class of medicines 
 which are believed to have the power of fa- 
 voring the discharge of the menses. These 
 are "savine (see Juniperus Sabina), black 
 hellebore, aloes, gamboge, rue, madder, stink- 
 ing goosefoot (chenopodium olidumj, gin, 
 parsley (and its active principle, apiol), per-
 
 EMMLX AGOGUES 
 
 1035 
 
 EMPLAZAMJ ' 
 
 mrinf/anatc of potassium, cantharides, and 
 borax, and for the most part substances 
 which, in large (loses, act as drastic purga- 
 tives or stimulating diuretics.'' They are 
 sometimes used i'<>r the' criminal purpose of 
 producing abortion (q. v.). They always en- 
 danger the life of the woman. 1 Beck, Med. 
 Jur. 310; Dunglison, Mel. Diet.; Parr, Med, 
 Diet; 3 Par. & F. Med. Jur. SS; Taylor's 
 Med. Jur. 184. 
 
 EMOLUMENT. The profit arising from 
 office or employment ; that which is received 
 as a compensation for services, or which is 
 annexed to the possession of office as salary, 
 fees, and perquisites; advantage; gain, pub- 
 lic or private. Webster. It imports any per- 
 quisite, advantage, profit or gain arising 
 from the possession of an odice. Apple v. 
 Crawford County, 105 Pa. 303, 51 Am. Rep. 
 L'i »:.. See Peeling v. County of York, 113 Pa. 
 108, 5 Atl. 67. 
 
 EMOTIONAL INSANITY. See Insanity. 
 
 EMPANEL. See Impanel; Jury. 
 
 EMPEROR. This word is synonymous 
 with the Latin imperator : they are both de- 
 rived from the verb imperare. Literally, it 
 signifies he who commands. 
 
 EMPHYTEUSIS. In Civil Law. The name 
 of a contract, in the nature of a perpetual 
 lease, by which the owner of an uncultivat- 
 ed piece of land granted it to another, ei- 
 ther in perpetuity or for a long time, on con- 
 dition that he should improve it, by building 
 on, planting, or cultivating it, and should 
 pay for it an annual reut, with a right to the 
 grantee to alienate it, or transmit it by de- 
 scent to his heirs, and under a condition that 
 the grantor should never re-enter as long as 
 the rent should be paid to him by the gran- 
 tee or his assigns. Inst 3, 25, 3; 18 Toul- 
 lier, n. 144. 
 
 EMPHYTEUTA. The grantee under a 
 contract of emphyteusis or empln/tcosis. 
 Vicat, Voc. Jur. ; Calvinus, Lex. ; 1 Ilallam, 
 c. ii. p. 1. 
 
 EMPIRE (Lat Imperiiun). Supreme 
 power in governing; imperial power; domin- 
 ion ; sovereignty. 
 
 The country, region, or union of states or 
 territories under the dominion of an emper- 
 or. Cent. I>ict. 
 
 It was in the sense of the first of these 
 definitions that Chief Justice Marshall is 
 said to have at one time used the phrase 
 "the American Empire." See Downes v. Bid- 
 well, 1S2 U. S. 279, 21 Sup. Ct 770. 45 L. 
 Ed. 1088. 
 
 It is used on a tablet over the door of the 
 old Friends' Library at Philadelphia: "The 
 Fourth Year of the Empire." 
 
 EMPLAZAMIENTO. In Spanish Law. 
 The citation given to a person by order of 
 
 the judge, and ordering him to appear be- 
 fore his tribunal on and L"iir. 
 
 EMPLOYE or EMPLOYEE. A term of 
 rather broad signil ir one who is 
 
 employed, whether his dutb - are within or 
 without the walls of the building in which 
 the chief officer usually transacts his busi- 
 ness. Mallory v. II. S., 3 Ct. 
 v. r. S., 3 Ct CI. 200. It is not usually ap- 
 plied to higher officers of corporatio 
 to domestic servants, but to clerks, workmen, 
 and laborers, collectively. 
 
 Strictly and etymologically, ir means "a 
 person employed," but in practice, in the 
 French language, it ordinarily is used to sig- 
 nify a person in some official employment, 
 and as generally used with us, though per- 
 haps not confined to any official employment, 
 it is understood to mean some permanent em- 
 ployment or position, it may be any one 
 who renders service to another; Wal 
 Mfg. Co., 30 N. J. Eq 588; and has been ex- 
 tended so far as to embrace attorney and 
 counsel; Gurney v. Ry. Co., 58 N. Y. 358. 
 The servant of a contractor for carrying 
 mail is an employe of the department of the 
 post-office; TJ. S. v. Belew, 2 Brock. 280, Fed. 
 ('as. No. 14,563; also one who received five 
 per cent, of the cost for superintending the 
 erection of a warehouse was held an em- 
 ploye; Moore v. I leaner, 14 Md. 558. See 
 Master and Servant. 
 
 EMPLOYED. The act of doing a thins, 
 and the being under contract or orders to 
 do it U. S. v. Morris, 14 Pet. (U. S.) 464, 
 475, 10 L. Ed. 543; U. S. v. The Catherine, 
 2 Paine 721, Fed. Cas. No. 14.7r.r-. 
 
 Where persons were employed "in and 
 about the works." it was held that although 
 their work as miners was at the bottom of 
 a mine, the term covered them as employes 
 until they arrived safely at the top, even al- 
 though they discharged themselves; 2 O. 1'. 
 Div. ."'.iT. 
 
 EMPLOYERS AND WORKMEN ACT. 
 The English statute of 38 and 39 Vict. c. 90, 
 regulating the jurisdiction of certain courts 
 over disputes between masters and employes. 
 See Master and Servant. 
 
 EMPLOYERS' LIABILITY ACTS. The 
 English act, 1880, j.'ives to all workmen, ex- 
 cept domestic or menial servants and sea- 
 men, a right id' action if injured by r 
 
 of the defective condition of machinery, etc., if 
 
 the defect was attributable to the oeglij 
 of the employer or his agent; to the negli- 
 gence of his superintendent or one to whom 
 he has given authority over the workman; 
 to some act or omission by a fellow workman 
 in obedience to the employer's by-laws, or 
 to the particular Instruction of one ! 
 in authority over him; or to a fellow work- 
 man in charge of any railroad signal, loco- 
 motive or train. The act abolishes the fel- 
 low servant rule, but not the contributory
 
 EMPLOYERS' LIABILITY ACTS 1036 EMPLOYERS' LIABILITY ACTS 
 
 negligence rule. The employer may set up 
 1 the defence that the workman knew of the 
 defect but did not complain. A contract not 
 to claim compensation under the act is law- 
 ful ; Griffiths v. Earl of Dudley, 9 Q. B. D. 
 357. 
 
 The act of congress of June 11, 1900, was 
 declared unconstitutional in the Employers' 
 Liability Case (Howard v. R. Co.) 207 U. S. 
 463, 28 Sup. Ct. 141, 52 L. Ed. 297, Harlan, 
 Holmes, Moody, and Lurton, JJ., dissenting. 
 The act of April 22, 190S, as amended April 
 5, 1910, provides for the liability of common 
 carriers engaged in interstate or foreign 
 commerce to their employees injured in such 
 commerce, or in case of death gives a right 
 of action to their personal representatives 
 for the benefit of the surviving widow or 
 husband and children of such employee, and 
 if none, then of such employee's parents, and 
 if none, then of the next of kin depend- 
 ent upon such employee. There shall be 
 only one recovery for the same injury; St. 
 Louis, I. M. & S. Ey. Co. v. Hesterly, 228 U. 
 
 S. 702, 33 Sup. Ct. 703, 57 L. Ed. . It 
 
 does away with the fellow servant rule, the 
 contributory negligence rule, except that 
 damages shall be diminished in proportion 
 to the amount of contributory negligence at- 
 tributable to the employee, and the rule 
 that an employee is held to have assumed 
 the risk of his employment in any case where 
 the violation, by the carrier, of any statute 
 enacted for the safety of employees contrib- 
 uted to the injury or death of such employee. 
 Acceptance of relief, such as railway relief, 
 is no bar to an action though agreed to, but 
 simply reduces the damages pro tanto. 
 
 The following cases define what is inter- 
 state commerce within the act. In Johnson 
 v. Great Northern R. R. Co., 178 Fed. G43, 
 102 C. C. A. 89 (8th Cir.), it was held that 
 an employee charged with the duty of cou- 
 pling cars and airbrake pipes upon cars 
 standing upon a switch track, some of which 
 cars were engaged in interstate commerce, 
 was himself employed in interstate com- 
 merce. In Zikos v. Navigation Co., 179 Fed. 
 893 (C. C, E. D. Wash.), it was held that a 
 section hand, while driving a spike on the 
 track of a railroad over which both inter- 
 state and intrastate commerce moved, was 
 employed in. interstate commerce. In Cen- 
 tral R. Co. of New Jersey v. Colasurdo, 192 
 Fed. 901, 113 C. C. A. 379 (2d Cir.), where 
 the plaintiff was injured while repairing an 
 interstate road over which interstate com- 
 merce and freight, and cars and engines en- 
 gaged in interstate commerce were constant- 
 ly passing, he was considered as being en- 
 gaged in interstate commerce. In Pedersen 
 v. R. Co., 197 Fed. 537, 117 C. C. A. 33 (3d 
 Cir.), the plaintiff was an iron worker on a 
 bridge on which an additional track was be- 
 ing placed. In getting rivets for the bridge 
 he went upon the main east-bound track of 
 the road, where he was struck and injured 
 
 by a local, intrastate train coming from the 
 other direction ; and it was held that neither 
 by operating such local train, nor by build- 
 ing an additional track or bridge, nor by 
 sending the man for the rivets, was the car- 
 rier engaged in interstate commerce ; nor 
 was the plaintiff, by helping to build such 
 bridge or by going upon a track which the 
 company was not using in interstate com- 
 merce employed by such carrier in such com- 
 merce. The case was reversed in Pedersen 
 v. R. Co., 229 U. S. 146, 33 Sup. Ct. 648, 57 
 L. Ed. 1125, Holmes, Lamar and Lurton, JJ., 
 dissenting. The court held there was evi- 
 dence to sustain a finding that at the time of 
 the injury the defendant was engaged, and 
 the plaintiff was employed by it, in inter- 
 state commerce. In Illinois Cent. R. Co. v. 
 Porter, 207 Fed. 311 (C. C. A., 6th Cir.) a 
 truckman employed by the railroad to wheel 
 interstate freight from a warehouse into a 
 car to be transported in interstate commerce 
 was held to be engaged in such commerce. 
 
 An action cannot be maintained under sec- 
 tion 1 of the above act where the complain- 
 ant neither alleges nor pleads facts showing 
 that defendant is a common carrier; Shade v. 
 Northern Pac. R. Co., 206 Fed. 353 (D. C, 
 W. D. Wash.). Where a train of cars was 
 hauled by a switch engine over certain tracks 
 and switches from one part of the railroad 
 yard to another, that they might be classi- 
 fied, inspected, and assembled, they were 
 not engaged in interstate commerce ; U. S. 
 v. R. Co., 205 Fed. 428 (D. C, W. D. N. Y.). 
 A workman, killed while employed by a rail- 
 road company engaged in interstate com- 
 merce in repairing a bridge on a line over 
 which such commerce was carried on, was 
 held to be employed in interstate commerce; 
 Thomson v. R. Co., 205 Fed. 203. 
 
 A locomotive fireman in the employment 
 of an interstate railroad, who was ordered 
 to report at a station to be transported with 
 others to another station to relieve the crew 
 of an interstate train, and who, when ap- 
 proaching the station over a crossing, was 
 struck and killed through the negligence of 
 other servants of the company also operat- 
 ing an interstate train, was within the act; 
 Lamphere v. Oregon R. & Nav. Co., 196 Fed. 
 336, 116 C. C. A. 156 (9th Cir.). So of one 
 injured when employed in repair shops con- 
 nected with an interstate track, in repairing 
 a car used indiscriminately in both inter- 
 state and intrastate commerce, but which 
 was at the time engaged in interstate com- 
 merce; Northern Pac. R. Co. v. Maerkl, 198 
 Fed. 1, 117 C. C. A. 237 (9th Cir.). The judg- 
 ment in the Pedersen Case, supra, will 
 doubtless affect some of these decisions in 
 lower courts. 
 
 The following cases were held not within 
 act: Bennett v. R. Co., 197 Fed. 578 "(D. C, 
 E. D. Pa.), where an employee was killed 
 while riding to his home by permission on 
 one of the company's trains, but who was 
 
 /
 
 EMPLOYERS' LIABILITY ACTS 1037 EMPLOYERS' LIABILITY ACTS 
 
 not at the time, and, so far as appeared, 
 had not just previously been, employed in 
 interstate commerce, was not within the act; 
 Helmbach v. R. Co., 197 Fed: 579 (D. C, E. 
 I). Pa.); where an employee, who was in- 
 jured while repairing a ear of another com- 
 pany which had reached the end of its ran, 
 been unloaded, and was lying at a station 
 awaiting orders, was not within the 
 Feaster v. R. Co., 197 Fed. 5S0 (D. C, E. D. 
 Pa.); and where an extra conductor, direct- 
 ed, on reporting for work, to ride to another 
 point within the same state for service on a 
 work train, and who was injured while pro- 
 ceeding to his train, was not at the time em- 
 ployed in interstate commerce; Taylor v. 
 So.*R. Co., 178 Fed. 3S0 (C. C, N. D. Ga.), 
 where a member of a bridge gang who was 
 injured while repairing a bridge forming a 
 most necessary part of the track of a rail- 
 road used for both interstate and intrastate 
 commerce, was not within the act. 
 
 A fireman on a switch engine which was 
 ordinarily employed in interstate commerce; 
 though mingled with intrastate commerce, 
 was held engaged in interstate commerce ; 
 Behrens v. R. Co., 192 Fed. 581 (D. C, E. D. 
 La.). Where a railroad brakeman was in- 
 jured while engaged in making a flying 
 switch to set out a car transported wholly 
 in intrastate tratlic, though it was part of a 
 train carrying both interstate and intrastate 
 freight, his injury did not occur while en- 
 gaged in interstate commerce ; Van Brim- 
 mer v. Ry. Co., 190 Fed. 394 (C. C, E. D. 
 Tex.). The causal negligence of a co-em- 
 ployee may be that of one not engaged in 
 interstate commerce ; In re Second Employ- 
 ers' Liability Cases. 122:; U. S. 1, 32 Sup. Ct. 
 1G9, 50 L. Ed. 327, 38 L. R. A. (X. S.) 44. 
 
 A Workman's Compensation Act was pass- 
 ed in England in 1897. It provides that in 
 certain trades and works the employer shall 
 be liable to compensate any workman injur- 
 ed by an accident in the course of his em- 
 ployment, whether the employer or any of 
 his subordinates had been guilty of negli- 
 gence or had committed any breach of duty 
 or not. This act was repealed in 190G, by 
 an act which provides for compensation for 
 injury from any accident in the course of 
 employment unless attributable to the seri- 
 ous or willful misconduct of the workman. 
 but this exception does not extend to injury 
 resulting in death or serious and permanent 
 disablement Compensation can also be 
 claimed by one who has suffered from cer- 
 tain specified "industrial diseases"; on the 
 event of his death, his dependants may 
 claim. The utmost amount recoverable is 
 one pound a week during total incapacity to 
 work or three hundred pounds in case of 
 death. Contributory negligence is no de- 
 fence, nor the voluntary assumption of a 
 Known risk, nor the negligence of a fellow 
 servant Where a principal has engaged a 
 
 contractor for the work, the act makes the 
 principal liable for compensation although 
 there is no direct relation between him and 
 the injured workman. 
 
 A workman injured in the course of his 
 employment has three diff< ides of pro- 
 
 cedure open to him: He □ 
 at common law; he may sue for dai 
 under the Employers' Liability Act of 
 or he may claim compensation under the 
 Workman's Compensation Act of 1906. ru- 
 der the Act of 1906, disputed questions are 
 settled by arbitration in the Count; Courts. 
 See Odgers C. L. 854. 
 
 Workmen's Compensation Acts wore 
 ed in 1911 in New Jersey, California, Wiscon- 
 sin, Kansas and Nevada, and in 1012 in Illi- 
 nois. Michigan, Arizona. New Hampshire and 
 Rhode Island. Under such acts the em] 
 is liable for the compensations to injured 
 workmen. The only negligence recognized 
 on the part of either the employer or the 
 employee, speaking generally, is that of will- 
 ful negligence. If the employer Is guilty of 
 such he is penalized; if the employee is, then 
 his compensation is denied or reduced. The 
 amount of the compensation is determined 
 with a maximum and minimum limit by 
 specified schedules of compensation and grad- 
 ed on a basis of a certain percentage of the 
 loss or impairment of the injured worker's 
 average weekly wage Jury trials are large- 
 ly eliminated and the compensation to which 
 the injured worker is entitled under the act 
 is determined by a board of arbitral I 
 judge of some court or a board of awards 
 created as specified by the act 
 
 Worknn »'s Industrial Insurance Acts were 
 passed in 1911 in Washington, in 1912 in 
 Massachusetts, Maryland and Ohio, and in 
 1913 in West Virginia. 
 
 The injured workman's claim under a 
 state insurance act is against a fund en 
 by contributions paid by employers, employ- 
 ees and the state or by any of them, in the 
 form of an insurance premium which is col- 
 lected by the taxing power of the state 
 through the exercise of its police power. 
 The employer's liability to his employees for 
 personal injuries occurring in the course of 
 their employment is discharged when he has 
 paid th(> premium as provided by the act 
 The right of trial by jury is entirely elim- 
 inated in such cases, excepting the 
 where the employee is denied com] 
 tion of any kind, and in that case he may 
 sue the board of administration created by 
 the act and have his case tried before 
 a jury as heretofore, but cannot sue his em- 
 ployer. No negligence is recognized except- 
 ing willful negligence on the part of either. 
 The compensation is paid in installments 
 based upon a certain percentage — usually 50 
 to GO per cent — of the impairment of wages 
 caused by the injury. The act usually fixes 
 the length of time that such compensation
 
 EMPLOYERS' LIABILITY ACTS 1038 EN DECLARATION DE SIMULATION 
 
 may run, and also a maximum and minimum 
 total compensation. In the enactment of 
 these statutes the state exercises its police 
 power for the protection of the peace, safety 
 and general welfare of the public. 
 
 The following states have by statute abro- 
 gated the fellow servant rule either general- 
 ly or in particular industries : Arkansas, 
 Colorado, Florida, Georgia, Iowa, Kansas, 
 Minnesota, Missouri, Montana, Nebraska, 
 Nevada, North Carolina, North Dakota, 
 Oklahoma, South Dakota, Texas, Wisconsin. 
 
 In the following states the rule is modified : 
 California, Mississippi, Maryland, Ohio, Ore- 
 gon, South Carolina, Utah, Virginia. 
 
 See Master and Servant; Negligence; 
 Death ; Workmen's Compensation Acts. 
 
 Compensation Acts were passed by con- 
 gress May 30, 1908, March 4, 1911, and 
 March 11, 1912, providing that artisans or 
 laborers engaged in any of the government 
 manufacturing establishments, arsenals or 
 navy-yards, or in the construction of river 
 and harbor or foi-tification work, or in haz- 
 ardous employment or construction work in 
 the reclamation of arid lands or the manage- 
 ment or control of the same, or in hazard- 
 ous employment under the Isthmian Canal 
 Commission, or in any hazardous work un- 
 der the Bureau of Mines or Forestry Service 
 shall receive compensation from the govern- 
 ment for injuries sustained in the course of 
 their employment, and if the employee should 
 die by reason of such injury then his widow 
 or children under sixteen, or a dependent 
 parent shall be entitled to receive as compen- 
 sation the same pay for one year as if he 
 continued to be employed, unless if only in- 
 jured he sooner be able to resume work. 
 
 EMPLOYMENT AGENCY. A municipal 
 ordinance licensing and regulating employ- 
 ment agencies is a valid exercise of the 
 police power ; People v. Warden of City Pris- 
 on of City, 183 N. Y. 223, 76 N. E. 11, 2 L. 
 R. A. (N. S.) 859, 5 Ann. Cas. 325; Price v. 
 People, 193 111. 114, 61 N. E. 844, 55 L. R. A. 
 588, 86 Am. St. Rep. 306. The Illinois act 
 was held void because forbidding a free em- 
 ployment agency to furnish help to persons 
 whose employees were on a strike or locked 
 out, or to refuse them access to the names of 
 applicants for service, whilst allowing this 
 privilege to other employers; Mathews v. 
 People, 202 111. 389, 67 N. E. 28, 63 L. R. A. 
 73, 95 Am. St. Rep. 241. 
 
 EMPRESTIT0. In Spanish Law. A loan. 
 Something lent to the borrower at his re- 
 quest. Las Partidas, pt. 3, tit. 18, 1. 70. 
 
 EMPTI0, EMPTOR (Lat. emere, to buy). 
 Emptio, a buying. Emptor, a buyer. Emp- 
 tio et venditio, buying and selling. 
 
 In Roman Law. The name of a contract 
 of sale. Du Cange ; Vicat, Voc. Jur. 
 
 EN AUTRE DROIT (Fr.). In the right of 
 another. 
 
 EN DECLARATION DE SIMULATION. 
 
 A form of action used in Louisiana. It is 
 one of revindication (q. v.), and has for its 
 object to have the contract declared judicial- 
 ly a simulation and a nullity ; Erwin v. Bank, 
 5 La. Ann. 1; Edwards v. Ballard, 20 La. 
 Ann. 169. 
 
 EN DEMEURE (Fr.). In default. Used 
 in Louisiana. Bryan v. Cox, 3 Mart. La. 
 (N. S.) 574. 
 
 EN 0WEL MAIN (L. Fr.). In equal 
 hand. The word oiccl occurs also in the 
 phrase owelty of partition. See_ 1 Washb. 
 R. P. 427. 
 
 EN VENTRE SA MERE (Fr.). In its 
 mother's womb. For certain purposes, in- 
 deed for all beneficial purposes, a child en 
 ventre sa m&re is to be considered as born ; 
 5 T. R. 49 ; 1 P. Wms. 329. It is regarded as 
 in esse for all purposes beneficial to itself, 
 but not to another; Marsellis v. Thalhimer, 
 2 Paige (N. Y.) 35, 21 Am. Dec. 66; Gillespie 
 v. Nabors, 59 Ala. 441, 31 Am. Rep. 20 ; [1908] 
 1 Ch. 4; [1907] A. C. 139. Formerly this 
 rule would not be applied if the child's in- 
 terests would be injured thereby; 2 De G., 
 J. & S. 665 ; but, for the purpose of the rule 
 against perpetuities, such a child is now re- 
 garded as a life in being, even though it is 
 prejudiced by being considered as born; 
 [1903] 1 Ch. 894 ; [1907] A. C. 139. Its civil 
 rights are equally respected at every period 
 of gestation ; it is capable of taking under a 
 will, by descent, or under a marriage settle- 
 ment, may be appointed executor, may have 
 a guardian assigned to it, may obtain an in- 
 junction to stay waste; Stedfast v. Nicoll, 3 
 Johns. Cas. (N. Y.) 18; Swift v. Duffield, 5 
 S. & R. (Pa.) 38; 1 Ves. 81; 2 Atk. 117; 
 Bacon, Abr. Infancy (B) ; 2 H. Bla. 399; 2 
 Vera. 710 ; 4 Ves. Jr. 227. Such a child is to 
 be considered as living so as to vest in the 
 parent on the death of the life tenant a de- 
 vise made by a testator to A for life, and 
 on her death to the parent of the child, "for 
 her absolute use and benefit in case she has 
 issue living at the death" of A, "but in case 
 she has no issue then living," then over, 
 when the parent was enceinte at the time of 
 A's death ; [1895] 2 Ch. 497. The right of an 
 unborn infant to take property by descent 
 or otherwise has been said to be an inchoate 
 right, which will not be completed by a pre- 
 mature birth ; 1 Sharsw. Bla. Com. 130, n. ; 
 but as the word premature is used in the 
 authorities, the rule accurately stated is 
 that it must be born alive or after such pe- 
 riod of foetal existence that it might reason- 
 ably be expected to survive ; Harper v. Arch- 
 er, 4 Smedes & M. (Miss.) 99, 43 Am. Dec. 472 ; 
 Swift v. Duffield, 5 S. & R. (Pa.) 3S; 4 Kent 
 248; Marsellis v. Thalhimer, 2 Paige (N. Y.) 
 35, 21 Am. Dec. 66. 
 
 A bastard en ventre sa mdre is not regard- 
 ed as in esse because, as it was said, such
 
 EN VENTRE SA MERE 
 
 1030 
 
 ENACT 
 
 child could not take "until they have g 
 a name by reputation" and "that reputation 
 could not be gained before the child was 
 born"; 1 P. Wm& ."•_".»; but in a case d( 
 long afterwards Lord Eldon (with whom, 
 he stated. Sir William Grant concurred) held 
 that a bequest to an illegitimate Child en 
 ventre sa mere was valid if there were a 
 sufficient description to identity it; 1 Mer. 
 141 ; and the court of appeal followed this 
 (though with Selborne, L. 0. dissenting) : 9 
 Ch. App. 147, which case was followed in 
 [1906] 1 Ch. 542, and [1905] P. 137. The 
 question whether an Illegitimate child en 
 ventre sa mire at the testator's death, but 
 not when his will was made, might take as 
 his reputed child, was left undecided; 31 
 Ch. D. 542; and a bequest to an Illegitimate 
 child en ventre sa mere at the date of the 
 will was held good and not contrary to pub- 
 lic policy; 3 Ch. D. 773. These questions 
 derive special interest in England because 
 they frequently arise in case of marriages 
 with a deceased wife's sister. 
 
 Such unborn child may have an injunction 
 to stay waste, have a guardian, and take 
 under a charge of a portion, or be executor; 
 2 Ves. Jr. 319; but it is held that an infant 
 may not recover damages for injuries receiv- 
 ed before its birth ; Dietrich v. Northampton, 
 138 Mass. 14, 52 Am. Rep. 242. 
 
 See an elaborate article on unborn infants, 
 action by, when they take, conveyance to, de- 
 gree of development necessary and rights of 
 action in detail ; CI C. L. J. 3(34. And see 
 Tyler, Inf. & Cov. ch. xiv.; 21 Ilarv. L. Rev. 
 3G0; Posthumous Child; Foztus ; Negli- 
 gence; Unborn Child. 
 
 ENABLE. To give power to do something. 
 In the case of a person under disability as 
 to dealing with another, "enable" has the 
 primary meaning of removing that disabili- 
 ty; not of conferring a compulsory power as 
 against that other; GO L. J. Ch. 208; [1897] 
 A. C. G47. 
 
 ENABLING POWERS. A term us.nl in 
 equity. When the donor of a power, who is 
 the owner of the estate, confers upon per- 
 sons not seised of the fee the right of creat- 
 ing interests to take effect out of it. which 
 could not be done by the donee of the power 
 unless by such authority, this is called an 
 enabling power. 
 
 ENABLING STATUTE. The act of 32 
 Henry VIII. c. 28, by which tenants in tail, 
 husbands seised in right of their wives, and 
 others, were empowered to make Leases tor 
 their lives or for 21 years, which thej 
 not do before. 2 Bla. Com. 319; Co. Litt 
 44 a. The phrase is also applied to any stat- 
 . ute enabling persons or corporations to do 
 what before they could not. 
 
 As to enabling acts of territories, see Ter- 
 ritory. 
 
 ENACT. To establish by law; to perform 
 or effect; to decree. The usual formula in 
 
 a statute is, 1- 
 
 ENAJENACI0N. In Spanish Law. The 
 act by which one person transfers to an- 
 other a property, either gratuitously, as in 
 the case of a donation, or by an owner's ti- 
 tle, as in the case of a sale or an 
 
 In Mexican Law. This wo I in 
 
 conveyancing to convey the fee, and 
 mere servitude upon the land. Molford V. 
 Le Franc, 26 CaL 88. 
 
 ENCEINTE (Ft.). Pregnant. See Preg- 
 
 XA.M'Y. 
 
 ENCLOSURE. An artificial fence around 
 one's estate. Keith v. Bradford, '■'>'.> vt. .".t; 
 Porter v. Aldrich. 39 Vt. 326; Taylor v. Wel- 
 bey, 36 Wis. 42. See Close. 
 
 ENC0MIENDA. A charge or mandate 
 conferring certain important privilcg- 
 the four military orders of Spain, to wit, 
 those of Santiago, Calatrava, Alcantara, and 
 Montesa. In the legislation of the Indias, it 
 signified the concession of a certain number 
 of Indians for the purpose of Instructing 
 them in the Christian religion and defending 
 their persons and property. 
 
 ENCOURAGE. To intimate, to incite to 
 anything, to give courage to, to inspirit, to 
 embolden, to raise conlidence, to make con- 
 fident. 7 Q. B. Div. 258- 
 
 ENCROACH. To gain unlawfully upon the 
 lands, property, or authority of another : as if 
 one man presseth upon the grounds of another 
 too far, or if a tenant owe two shillings rent- 
 service and the lord exact three. So, too, the 
 Spencers were said to encroach the king's au- 
 thority. Blount; Plowd. 94c. Quite a mem- 
 orable instance of puuishment for encroach- 
 ing (accroaching) royal power took place in 
 21 Edw. III. 1 Hale. PI. Or. 80. Takii 
 by clerks of the courts has been held en- 
 croaching; 1 Leon. 5. 
 
 ENCUMBRANCE. See IlTCUMBBAHCB. 
 
 ENDORSE. See IRDOBSEMENT. 
 
 ENDOWMENT. Now generally used of a 
 permanent provision for any public i 
 as a school or hospital. By the endowment 
 of such Institutions is commonly undei 
 not the building or providing sites for them, 
 but the providing of a li\ed revenue for their 
 support 2.", I.. .1. Ch. 82; ''. De «... M. & G. 
 87; Stale v. Lyon, •":_ X. a*. I.. 361. But more 
 technically, of the assigning dower to a wo- 
 man, or the severing "f a Buffl dent portion 
 for a vicar towards his perpetual mainte- 
 nance, l Bla. Com. Steph. 
 Com. 99; French v. Pratt, 27 Me. 381 ; state 
 v. Lyon, .".2 N. J. i.. 360; Bunkel v. Wineniil- 
 ler. 4 llarr. & McH. (Md.) 129, 1 Am. Dec. 
 411. 
 
 ENDOWMENT INSURANCE. See Insur- 
 ance.
 
 ENEMY 
 
 1040 
 
 ENGAGED 
 
 ENEMV. A nation which is at war with 
 another. A citizen or a subject of such a 
 nation. Any of the subjects or citizens of a 
 state in amity with another state who have 
 commenced or have made preparations for 
 commencing hostilities against the latter 
 jtate, and also the citizens or subjects of a 
 state in amity with another state who are in 
 the service of a state at war with it. See 
 Salk. 035 ; Bacon, Abr. Treason, G ; Monon- 
 gahela Ins. Co. v. Chester, 43 Pa. 491. 
 
 By the term enemy is also understood a person 
 ■who is desirous of doing injury to another. The 
 Latins had two terms to signify these two classes 
 of persons: the first, or the public enemy, they 
 called hostis, and the latter, or the private enemy, 
 
 aliiiUCUS. 
 
 An enemy subject cannot, as a general rule, 
 enter into any contract which can be enforc- 
 ed in the courts of law ; but the rule is not 
 without exceptions : as, for example, in suits 
 brought upon ransom bills (q. v.), bills of ex- 
 change drawn by prisoners of war, contracts 
 entered into under licenses to trade with the 
 enemy granted by a belligerent to its citi- 
 zens; Scholefield v. Eichelberger, 7 Pet. (U. 
 S.) 586, 8 L-. Ed. 793 ; Kershaw v. Kelsey, 100 
 Mass. 561, 97 Am. Dec. 124, 1 Am. Rep. 142. 
 
 United States citizens in Cuba during the 
 war with Spain were enemies, and cannot 
 recover from the United States for property 
 destroyed; Juragua Iron Co. v. U. S., 212 U. 
 S. 297, 29 Sup. Ct. 3S5, 53 L. Ed. 520. See 
 Public Enemy. 
 
 ENFEOFF. To make a gift of any corpo- 
 real hereditaments to another. See Feoff- 
 ment. 
 
 ENFRANCHISE. To make free; to in- 
 corporate a man in a society or body politic. 
 Cun. Diet. 
 
 ENFRANCHISEMENT. Giving freedom 
 to a person. Admitting a person to the free- 
 dom of a city. A denizen of England, or a 
 citizen of London, is said to be enfranchised. 
 So, too, a villein is enfranchised when he ob- 
 tains his freedom from his lord. Termes de 
 la Ley; 11 Co. 91. 
 
 The word is now used principally either 
 of the manumission of slaves (q. v.), of giv- 
 ing to a borough or other constituency a 
 right to return a member or members to par- 
 liament, or of the conversion of copyhold in- 
 to freehold. Moz. & W. L. Diet 
 
 ENFRANCHISEMENT OF COPYHOLD. 
 
 The change of the tenure by which lands are 
 held from copyhold to freehold, as by a con- 
 veyance to the copyholder or by a release of 
 the seignorial rights. 1 Watk. Copy. 362; 
 1 Steph. Com. 632 ; 2 id. 51. ' 
 
 ENGAGED. Within the meaning of a by- 
 law of a fraternal order, one is engaged in 
 the sale of liquor who is a partner in the 
 saloon business, though he performs no labor 
 in or about the saloon and takes no active 
 
 part in the business. Graves v. Knights of 
 Maccabees of the World, 199 N. Y. 397, 92 N. 
 E. 7 ( J2, 139 Am. St. Rep. 912. 
 
 ENGAGEMENT. In French Law. A con- 
 tract The obligations arising from a quasi 
 contract. 
 
 The terms obligation and engagement are said to 
 be synonymous ; 17 Toullier, n. 1 ; but the Code 
 seems specially to apply the term engagement to 
 those obligations which the law imposes on a man 
 without the intervention of any contract, either on 
 the part of the obligor of the obligee ; art. 1370. An 
 engagement to do or omit to do something amounts 
 to a promise ; Rue v. Rue, 21 N. J. L. 3G9. 
 
 Promises or debts of a married woman, 
 not expressly charged on her separate es- 
 tate, are termed her general engagements, 
 not binding it unless made with reference to 
 and upon the credit of it. L. R. 4 C. P. 593 ; 
 L. R. 2 Eq. 1S2 ; 3 De G., F. & J. 513. See 
 Agreement; Contract; Promise. 
 
 ENGLAND. See United Kingdom of 
 Great Britain and Ireland. 
 
 ENGL ES HIRE. A law was made by Can- 
 ute, for the preservation of his Danes, that, 
 when a man was killed, the hundred or town 
 should be liable to be amerced, unless it could 
 be proved that the person killed was an Eng- 
 lishman. This proof was called Engleshire. 
 It consisted, generally, of the testimony of 
 two males on the part of the father of him 
 who had been killed, and two females on the 
 part of his mother. 1 Hale, PI. Cr. 447; 4 
 Bla. Com. 195; Spelman, Gloss. 
 
 ENGLISH MARRIAGE. This phrase may 
 refer to the place where the marriage was 
 solemnized, or it may refer to the national- 
 ity and domicil of the parties between whom 
 it was solemnized, the place where the union 
 so created was to have been enjoyed. 6 Prob. 
 Div. 51. 
 
 ENGRAVING. See Copyright. 
 
 ENGROSS. To copy the rude draught of 
 an instrument in a fair, large hand. To 
 write out, in a large, fair hand, on parch- 
 ment. The term is applied to statutes, which, 
 after being read and acted on a sufficient 
 number of times, are ordered to be engrossed. 
 Anciently, also, used of the process of mak- 
 ing the indenture of a fine. 5 Co. 39 &. 
 
 In Criminal Law. To buy up such large 
 quantities of an article as to obtain a mo- 
 nopoly of it for the purpose of selling at an 
 unreasonable price. The tendency of modern 
 law is very decidedly to restrict the applica- 
 tion of the law against engrossing; and is 
 very doubtful if it applies at all except to 
 obtaining a monopoly of provisions; 1 East 
 143. And now the common-law offence of the 
 total engrossing of any commodity is abol- 
 ished by Stat. 7 & 8 Vict. c. 24. Merely buy- 
 ing for the purpose of selling again is not 
 necessarily engrossing. 14 East 406; 15 id. 
 511. See Combinations; Restraint of 
 Trade; Monopoly.
 
 ENGROSSER 
 
 1041 
 
 ENLISTMENT 
 
 ENGROSSER. One who engrosses or 
 writes on parchment in a large, fair band. 
 
 One who purchases large quantities of any 
 commodity in order to have the command of 
 the market and to sell them again at high 
 prices. 
 
 ENGROSSING. The offence committed hy 
 an engrosser. 
 
 ENHANCED. Taken in an unqualified 
 sense, it is equivalent to "increased," and 
 comprehends any Increase in value however 
 caused or arising. Thornburn v. Doscher, 32 
 Fed. 812. 
 
 ENITIA PARS (L. Lat). The part of the 
 eldest. Co. Litt. 166; Bacon, Abr. Coparcen- 
 ers (C). 
 
 When partition is voluntarily made among 
 coparceners in England, the eldest has the 
 first choice, or primer election (q. v.); and 
 the part which she takes is called enitia pars. 
 This right is purely personal, and de ■ 
 it is also said that even her assignee shall 
 enjoy it ; but this has been doubted. The 
 word enitia is said to be derived from the 
 old French et'sne, the eldest ; Bac. Abr. Co- 
 parceners (C) ; Keilw. 1 o, 49 a; Cro. Eliz. IS. 
 
 ENJOIN. To command; to require: as, 
 private individuals are not only permitted, 
 but enjoined, by law, to arrest an offender 
 when present at the time a felony is commit- 
 ted or a dangerous wound given, on pain of 
 fine and imprisonment if the wrong-doer es- 
 cape through their negligence. 1 Hale, PI. 
 Cr. 5S7 ; 1 East, PI. Cr. 29S ; By. & M. 93. 
 
 To command or order a defendant in equi- 
 ty to do or not to do a particular tiling by 
 writ of injunction. See 55 Ch. Div. 418; In- 
 junction. 
 
 ENLARGE. To extend: as, to enlarge a 
 rule to plead is to extend the time during 
 which a defendant may plead. To enlarge 
 means, also, to set at liberty: as, the pris- 
 oner was enlarged on giving bail. 
 
 ENLARGING. Extending, or making more 
 comprehensive: as, an enlarging statute, 
 which is one extending the common law. En- 
 larging an estate is the increasing an estate 
 in land, as where A. has an estate for life 
 with remainder to B. and his heirs, and B. 
 releases his estate to A. 2 Bla. Com. 324. 
 See Release. 
 
 ENLISTMENT. The act of making a con- 
 tract to serve the government in a subordi- 
 nate capacity, either in the army or navy. 
 The contract so made is also called an en- 
 listment. A dra lied man is said to be "en- 
 listed" as well as a volunteer, but the term 
 does not apply to one entering the army un- 
 der a commission ; Inhabitants of Sheffield v. 
 Inhabitants of Otis, 107 Mass. 282 : Billiard 
 v. Stewartstown, 48 N. H. 2S0. The contract 
 of enlistment involves a change in the status 
 of the recruit, which he cannot throw off at 
 Bouv.— 66 
 
 will, though he may violate his contract; In 
 re Grimley, 137 U. S. 147, 11 Sup. Ct. 54, 34 
 L. Ed. 63ft 
 
 Fraudulent enlistment is an offense pun- 
 ishable by general court-martial; Act March 
 etween the ages of 16 and 18 
 are authorized to enlist if they have the con- 
 sent of their parents or guardians; R. S. 
 1419. But a minor who has been enlisted in 
 either service without the consent of his par- 
 ents or guardian Is both de forth and d- 
 In the servirr, and is liable b ! an-! 
 
 punished for any Infraction of the regulations. 
 The lack of such consenl will require bJ 
 charge from the service, but it will not ab- 
 solve him from punishment for offences com- 
 mitted while in the service; Dillingham v. 
 Booker. 163 Fed. 696, 90 C. C. A. 280, IS L. 
 R. A. (N. S.) 956, 16 Ann. Cas. 127; U. S. v. 
 Reaves, 126 Fed. 127, 60 C. C. A. 075 ; In re 
 Scott, 144 Fed. 79, 75 ' '. < '. A. 237; In re 
 Lessard, 134 Fed. 305. But in Ex parte Lisk, 
 145 Fed. 800, it was held that where the stat- 
 ute required the consent of the parents, and 
 such consent was not given, the minor was 
 not a person "belonging to the navy," and 
 the naval authorities could not detain him 
 in custody with a view to having him tried 
 by a naval court-martial for fraudulent en- 
 listment, when the real issue was his Legal 
 right to enter the navy, and whether he wa- 
 lawfully therein or not; followed in Dilling- 
 ham v. Bakley, 152 Fed. 1022, 82 C. C. A. 
 659, affirming Ex parte Bakley, 148 Fed. 50. 
 
 Where the jurisdiction of the civil courts 
 has attached in habeas corpus proceedings be- 
 fore charges are preferred against a minor 
 for fraudulent enlistment and an 
 made, he is entitled to be discharged; E\ 
 parte Houghton, 129 Fed. 239 ; contra. Ex 
 parte Lewkowitz, 163 Fed. 646. In 1. S. v. 
 Wright, 5 Phila. 299, Fed. Cas. No. 16,778, it 
 was held the enlistment of a minor without 
 his parents' consent was illegal, and his sub- 
 sequent desertion was but a disclaimer of 
 his contract, which he had a right to make, 
 citing and following Com. v. Fox, 7 I'a. 336. 
 But the right to a discharge is denied to a 
 minor, himself the petitioner, on the ground 
 that the contract was valid so far as the 
 minor himself is concerned; In re Morrissey, 
 137 U. S. 157, 11 sup. ft. :.7. :u E. Ed. 644; 
 In re Hearn, 32 Fed. in. See 22 II. E. l;. 
 144. A federal court may discharge on 7m- 
 beas corpus; Ex parte Schmeid, 1 
 Fed. Cas. No. 12,461 ; but not a state courl : 
 Tarble's Case, 13 Wall. (U. S.) 397, _" E. Ed 
 597. 
 
 The receipt of pay seems to be tantamount 
 tn an enlistment or perhaps evidence thereof. 
 Art. of War 17 provides for the punishment 
 of "any soldier who, having received pay OS 
 having been duly enlisted," etc., "deserts." 
 etc. In Re Grimley, 137 U. S. 147, 11 Sup. 
 Ct. 54. .".1 E. Ed. 636, it was held that taking 
 the oath of enlistment "was the pivotal fact 
 which operated to change the status."
 
 ENORMIA 
 
 1042 
 
 ENTICE 
 
 ENORMIA (Lat). Wrongs. See Alia En- 
 ormia. 
 
 ENQUETE or ENQUEST. In Canon 
 Law. An examination of witnesses in the 
 presence of a judge authorized to sit for this 
 purpose, taken in writing, to be used as ev- 
 idence in the trial of a cause. The day of 
 hearing must be specified in a notice to the 
 opposite party; 9 Low. C. 392. It may be 
 opened, in some cases, before the trial ; 10 
 Low. C. 19. 
 
 ENROLL. To register; to enter on the 
 rolls of chancery, or other courts; to make 
 a record. 
 
 ENROLMENT. The registering or enter- 
 ing on the rolls of chancery, king's bench, 
 common pleas, or exchequer, or by the clerk 
 Of the peace in the records of the quarter 
 sessions, of any lawful act : as, a recog- 
 nizance, a deed of bargain and sale, and the 
 like. Jacob, Law Diet. For the terms "en- 
 rolment" and "registration" as used in the 
 United States merchant shipping laws, see 
 R. S. tit. 50; 21 Stat. L. 271; 18 id. 30; The 
 Mohawk, 3 Wall. (U. S.) 566, 18 L. Ed. 67; 
 Vessel. 
 
 ENS LEG IS. A being of the law; a legal 
 entity. Used of corporations. 
 
 ENTAIL. A fee abridged or limited to the 
 issue, or certain classes of issue, instead of 
 descending to all the heirs. 1 Washb. R. P. 
 66 ; 2 Bla. Com. 112, n. ; Wms. R. P. 61. 
 
 To restrict the inheritance of lands to a 
 particular class of issue. 1 Washb. R. P. 66 ; 
 2 Bla. Com. 113. See Fee-Tail. 
 
 ENTENCION. In Old English Law. The 
 
 plaintiff's declaration. 
 
 ENTER. To go upon lands for the pur- 
 pose of taking possession ; to take possession. 
 In a strict use of terms, entry and taking 
 possession would seem to be distinct parts of 
 the same act ; but, practically, entry is now 
 merged in taking possession. 1 Washb. R. P. 
 10, 32 ; Stearn, Real Act. 2. 
 
 To cause to be put down upon the record. 
 An attorney is said to enter his appearance, 
 or the party himself may enter an appear- 
 ance. See Entry. 
 
 ENTERTAINMENT. Something connected 
 with the enjoyment of refreshment rooms, 
 tables, and the like. It is something be- 
 yond refreshments ; it is the accommodation 
 provided whether that includes musical or 
 other amusements or not. L. R. 10 Q. B. 595. 
 It is synonymous with board ; Scattergood v. 
 Waterman, 2 Miles (Pa.) 323 ; but it may in- 
 clude refreshment, without seating accom- 
 modation; 1 Ex. Div. 3S5. See Place of 
 Amusement. 
 
 ENTICE. To solicit, persuade, or procure. 
 Nash v. Douglass, 12 Abb. Pr. N. S. (N. Y.) 
 187. The enticing desertions from the army 
 or navy or arsenals of the United States is 
 
 punishable by fine and imprisonment. R. S. 
 §§ 1553, 1668, 5455, 5525. 
 
 A husband may recover compensation for 
 enticing his wife away ; French v. Deane, 19 
 Colo. 504, 36 Pac. 609, 24 L. R. A. 387 ; Tas- 
 ker v. Stanley, 153 Mass. 14S, 26 N. E. 417, 
 10 L. R. A. 468. It is no defence to show 
 that they had not lived happily together, 
 though it may go in mitigation of damages; 
 Hadley v. Hey wood, 121 Mass. 236 ; Bailey v. 
 Bailey, 94 la. 598, 63 N. W. 341. Stronger 
 evidence is required where a parent har- 
 bors his daughter ; it ought to appear that 
 there were improper motives ; Hutcheson v. 
 Peck, 5 Johns. (N. Y.) 196 ; Schoul. Husb. & 
 W. § 64; Glass v. Bennett, 89 Tenn. 478, 14 
 S. W. 1085 ; White v. Ross, 47 Mich. 172, 10 
 N. W. 188. So of a wife's action against her 
 husband's parents for enticing him away 
 from her; Reed v. Reed, 6 Ind. App. 317, 33 
 N. E. 638, 51 Am. St. Rep. 310 ; and probably 
 of a brother's harboring his sister; Glass 
 v. Bennett, 89 Tenn. 479, 14 S. W. 1085. It 
 has been held that neither at common law 
 nor under statutes giving a wife the right to 
 sue has she a right of action for enticing 
 away her husband ; Duffies v. Duffies, 76 
 Wis. 374, 45 N. W. 522, 8 L. R. A. 420, 20 
 Am. St. Rep. 79 ; Doe v. Roe, 82 Me. 503, 20 
 Atl. 83, 8 D. R. A. 833, 17 Am. St. Rep. 499 ; 
 Hester v. Hester, 88 Tenn. 270, 12 S. W. 446 ; 
 but the weight of authority is that the ac- 
 tion will lie at common law ; Holmes v. 
 Holmes, 133 Ind. 386, 32 N. E. 932 ; Waldron 
 v. Waldron, 45 Fed. 315; Hodgkinson v. 
 Hodgkinson, 43 Neb. 269, 61 N. W. 577, 27 L. 
 R. A. 120, 47 Am. St. Rep. 759; Bennett v. 
 Bennett, 116 N. Y. 584, 23 N. E. 17, 6 L. R. 
 A. 553; 9 H. L. Cas. 577. See Warren v. 
 Warren, 89 Mich. 123, 50 N. W. 842, 14 L. R. 
 A. 545. See Alienation of Affection. 
 
 A parent has a right of action against one 
 who improperly entices his minor child 
 away from him ; Grand Rapids & I. R. R. Co. 
 v. Showers, 71 Ind. 451 ; Caughey v. Smith, 
 50 Barb. (N. Y.) 351; L. R. 2 C. P. 615; in 
 tort or assumpsit; Tiffany, Pers. & Dom. 
 Rel. 284. The action is on the theory of loss 
 of services, and the relation of master and 
 servant, either actual or constructive, must 
 be proven; id.; Magee v. Holland, 27 N. J. 
 L. 86, 72 Am. Dec. 341. 
 
 A master has a right of action for know 
 ingly enticing his servant; 2 El. & Bl. 216 
 Bixby v. Dunlap, 56 N. H. 456, 22 Am. Rep 
 475 and note ; Jones v. Blocker, 43 Ga. 331 
 Duckett v. Pool, 33 S. C. 238, 11 S. E. 6S9 ; 
 even though the contract of employment was 
 one which the servant could terminate at 
 will; Haskins v. Royster, 70 N. C. 601, 16 
 Am. Rep. 780; L. R. 2 C. P. 615; but not 
 where it had expired by its own limitations; 
 Boston Glass Manufactory v. Binney, 4 Pick. 
 (Mass.) 425. The doctrine extends to all 
 kinds of employes; Walker v. Cronin, 107 
 Mass. 555 ; though it has been held to apply, 
 at common law, only to domestic servants
 
 ENTICE 
 
 1043 
 
 EN I [RETY 
 
 and apprentices; Huff v. Watkins, 15 S. C. 
 82, 40 Am. Rep. 6S0. 
 
 Where one after notice continues to em- 
 ploy another's servant, the latter has a right 
 of action, though at the time he hired him 
 the second master did not know that he was 
 hiring another nam's servant; Schoul. Doin. 
 Rel. § 487 ; hut in Lumley v. Gye, 2 El. & Bl. 
 216, which was an action for dams 
 by the enticement of Wagner, a celebrated 
 singer, from one theatre to another, the ma- 
 jority of the court thought the action would 
 lie. 
 
 Enticement in some states renders one lia- 
 ble to criminal prosecution; Bryan v. State, 
 44 Ga. 32S ; Roseberry v. State, 50 Ala. 160 ; 
 State v. Daniel, SO N. C. 553. See Chipley v. 
 Atkinson. 23 11a. 206, 1 South. 034, 11 Am. 
 St Rep. 367. 
 
 ENTIRE. That which is not divided ; that 
 which is whole. 
 
 When a contract is entire, it must, in gen- 
 eral, be fully performed before the party can 
 claim the compensation which was to have 
 been paid to him : for example, when a man 
 hires to serve another for one year, he will 
 not be entitled to leave him at any time be- 
 fore the end of the year, and claim compen- 
 sation for the time unless it be done by the 
 consent or default of the party hiring; Hair 
 v. Bell, 6 Vt. 35; Stark v. Parker, 2 Pick. 
 (.Mass.) 267, 13 Am. Dec. 425; McClure v. 
 Pyatt, 4 McGord (S. C.) 26 ; Byrd v. Boyd, 4 
 McCord (S. C.) 246, 17 Am. Dec. 740 ; Rounds 
 v. Baxter, 4 Greenl. (Me.) 454 ; Hoar v. Clute, 
 15 Johns. (N. Y.) 224 ; Watkins v. Hodges, 6 
 H. & J. (Md.) 38. See Olmstead v. Bach, 7S 
 Md. 132, 27 Atl. 501, 22 L. R. A. 74, 44 Am. 
 St. Rep. 273. A contract is entire if the con- 
 sideration be single and entire, notwithstand- 
 ing the subject of the contract consists of sev- 
 eral distinct items ; 2 Pars. Cont. 517. See 
 Divisible. 
 
 An entire day is an undivided day, from 
 midnight to midnight ; Rohertson v. State, 
 43 Ala. 325; Haines v. State, 7 Tex. App. 30; 
 Lawrence v. State, 7 Tex. App. 102. The 
 words "entire use. benefit," etc., in a trust 
 deed for the benefit of a married woman, 
 have been construed as equivalent to "sole 
 and separate use" ; Heathman v. Hall, 38 N. 
 C. 414. Entire tenancy "is contrary to sev- 
 eral tenancy, signifying a sole possession in 
 one man, whereas the other signifieth joint 
 or common in more." Co well. 
 
 ENTIRETY. This word denotes the whole, 
 in contradistinction to moiety, which denote's 
 the half part. A husband and wife, when 
 jointly seized of land, are seized by entireties 
 per tout and not per my ct per tout, as joint 
 tenants are. Jacob, Law Diet.; 2 Kent 132. 
 See In re Bramberry's Estate, 156 Pa. 628, -7 
 Atl. 405, 22 L. R. A. 504, 36 Am. St. Rep. 
 64. Per Tout et now Peb My. 
 
 The same words of conveyance that would 
 make two other persons joint tenants will 
 
 make the husband and wife tenants of the 
 entirety; Georgia, etc., R. Co. v. Scott, 3& 
 ; l. L6 S. I y v. Eing- 
 
 li:ini. 69 Miss. 795, L3 S a h ..itt v. 
 
 Beebe, 23 Or. •!. 3S 
 Chambers, 92 Tenn. 7 ; >7. 23 8 R 
 
 Such a a ( tate has the quality of survivor- 
 slap, whereby the h I ■ survivor 
 to the exclusion of the heirs of the fir 
 ceased; Marburg v. Cole, 40 Md. I 
 Rep. 266; Kunz v. Kurtz, 8 Del. Ch. i 
 Atl. 450. There can lie no partition he 
 tenants by entireties; Chandler v. Cheney, 
 37 Ind. 301; no interest in it can be » 
 execution for the debts of the husband or 
 wile; i'L; Almond v. Bonnell, 76 II. 
 But iu Hiles v. Fisher, 141 X. Y. :;o<;. 30 X. 
 E. 337, 30 L. R. A. 305, 43 Am. St 
 a purchaser at a mortgage foreclosure sale 
 which covered the property held in entirety 
 and in which the wife did not join was held 
 to become a tenant in common with the wife 
 as to such property; aud to the same effect 
 Washburn v. Burns, :;i X. J. L. 18. In Butt- 
 lar v. Rosenhlath, 42 X. J. Eq. 651, 9 Atl. 
 695, 59 Am. Rep. 52, an act which in terms 
 preserves to a married woman her separate* 
 right of property was held to change the 
 status of an estate by entirety to the extent 
 of limiting the rights of the creditors of the 
 husband to subject the use of only bis half 
 of such an estate to the payment of his debts. 
 
 That a judgment agaiust the husband is 
 not a lien on real estite owned by himself 
 and wife by entirety, and that they can con- 
 vey it free and clear of an unsatisfied judg- 
 ment lien against him (valid on laud owned 
 by him personally), is held; Davis v. Clark. 
 26 Ind. 424, 89 Am. Dec. 471, where it is said: 
 "As between husband and wife, there is but 
 one owuer, and that is neither the one nor 
 the other, but both together. The estate be- 
 longs as well to the wife as to the husband." 
 The husband cannot therefore possess any 
 interest separate from his wife, nor can he 
 alienate or encumber the estate. From the 
 peculiar nature of this estate and from the 
 legal relation of the parties, there must be 
 unity of estate, unity of possession, unity of 
 control, and unity in conveying or encum- 
 bering it ; and it necessarily results that it 
 cannot be seized aud sold upon execution for 
 the separate debts of either the husband or 
 the wife; followed in Hulett v. Inlow, 57 
 Ind. 41^. 26 Am. Rep. 64; Barren Creek 
 Ditching Co. v. Beck, 99 Ind. 247: and t" 
 the same effect, Alios v. Lyon, 216 Pa, 604, 66 
 Atl. SI, 10 L. R. A. (N. S.) 463, 116 A] 
 Rep. TOl, Ann. ('as. 137; Dickey v. 
 verse. 117 Mich. 4 1!>. 76 X. W. SO. 72 Am. Si. 
 Rep. 568; Bank v. ('order, 32 W. \ a. 2 
 S. K. 220; Dole Mfg. Co. v. Collier, 95 Tenn. 
 115, 31 S. W. 1000, 30 L. R. A. 315, 49 Am. 
 St Rep. 921; Ray v. Long, 132 X. 0. 891, 44 
 S. E. (;:.!'. 
 
 Where a husband and wife sold land owned 
 by them as tenants by entirety, takiug a
 
 ENTIRETY 
 
 1044 
 
 ENTRY 
 
 mortgage to husband and wife, the wife died, 
 and the bond was paid, it was held that one- 
 half the proceeds belonged to tbe wife's legal 
 representatives; In re Baum, 121 App. Div. 
 496, 106 N. Y. Supp. 113. 
 
 Where a wife pays for land and consents 
 that the title may be taken in the name of 
 herself and husband, they hold as tenants in 
 entirety, and a conveyance by the husband 
 passes the rights to the possession of the 
 land during their joint lives, and to the fee 
 in case the husband survive ; Hiles v. Fisher, 
 67 Hun 229, 22 N. Y. Supp. 795; Phelps v. 
 Simons, 159 Mass. 415, 34 N. E. 657, 38 Am. 
 St. Rep. 430. 
 
 In Merritt v. Whitlock, 200 Pa. 50, 49 Atl. 
 786, it was said it might be considered as 
 still an open question whether husband and 
 •wife may not, since the married woman's 
 acts, take, as well as hold in common, if there 
 be a clear actual intent, notwithstanding the 
 presumption to the contrary. But a later 
 case in the same state holds that as the qual- 
 ity of the estate is determined at its incep- 
 tion, that estate could not be stripped of 
 any of its incidents except by express stat- 
 utory provision existing at the time of its in- 
 ception ; Alles v. Lyon, 216 Pa. 604, 66 Atl. 
 81, 10 L. R. A. (N. S.) 463, 116 Am. St Rep. 
 791, 9 Ann. Cas. 137. 
 
 This estate, where it exists as at common 
 law, is not affected by the statutes for the 
 protection of married women, nor by statutes 
 providing that conveyances to two or more 
 persons shall be deemed to create a tenancy 
 in common and not a joint tenancy ; Kunz v. 
 Kurtz, 8 Del. Ch. 404, 68 Atl. 450. 
 
 As to the effect of the married woman's 
 acts on estates held by entirety, see Married 
 Woman. 
 
 The divorce of the parties will not sever 
 an estate by entirety; Alles v. Lyon, 216 Pa. 
 604, 66 Atl. 81, 10 L. R. A. (N. S.) 463, 116 
 Am. St Rep. 791, 9 Ann. Cas. 139; contra, 
 Joerger v. Joerger, 193 Mo. 133, 91 S. W. 918, 
 5 Ann. Cas. 534; Hayes v. Horton, 46 Or. 
 597, 81 Pac. 3S6 (by changing it into a ten- 
 ancy in common). 
 
 ENTITLE. To give a right to. L. R. 20 
 Eq. 534. 
 
 ENTRY. In Common Law. The act of 
 setting down the particulars of a sale, or 
 other transaction, in a merchant's or trades- 
 man's account-books : such entries are, in 
 general, prima facie evidence of the sale and 
 delivery, and of work done ; but unless the 
 entry be the original one, it is not evidence. 
 See Short Entry; Single Entry. 
 
 In Revenue Law. The submitting to the 
 inspection of officers appointed by law, to 
 collect customs, goods imported iato the Unit- 
 ed States, together with a statement or de- 
 scription of such goods, and the original in- 
 voices of the same, for the purpose of esti- 
 mating the duties to be paid thereon. 
 
 The term "entry" in the acts of congress is 
 
 used in two senses. In many of the acts it 
 refers to the bill of entry, — the paper or 
 declaration which the merchant or importer 
 in the first instance hands to the entry clerk. 
 In other statutes it is used to denote, not a 
 document, but a transaction ; a series of acts 
 which are necessary to the end to be accom- 
 plished, viz. the entering of the goods; U. S. 
 v. Cargo of Sugar, 3 Sawy. 46, Fed. Cas. No. 
 14,722. 
 
 In Criminal Law. The act of entering a 
 dwelling-house, or other building, in order 
 to commit a crime. See Burglary. 
 
 Upon Real Estate. The act of going upon 
 the lands of another, or lands claimed as 
 one's own, with intent to take possession. 
 See Guion v. Anderson, 8 Humph. (Tenn.) 306. 
 
 In general, any person who has a right 
 of possession may assert it by a peaceable 
 entiTi without the formality of a legal ac- 
 tion, and, being so in possession, may retain 
 it, and plead that it is his soil and freehold ; 
 3 Term 295. A notorious act of ownership 
 of this kind was always equivalent to a feo- 
 dal investiture by the lord, and is now allow- 
 ed in all cases where the original entry of a 
 wrong-doer was unlawful. But, in all cases 
 where the first entry was lawful and an ap- 
 parent right of possession was thereby gain- 
 ed, the owner of the estate cannot thus enter, 
 but is driven to his action at law ; 3 Bla. 
 Com. 175. See Re-Entry; Forcible Entry. 
 
 At common law, no person could make a 
 valid sale of land unless he had lawfully en- 
 tered, and could make livery of seisin, — that 
 is, could make an actual delivery of posses- 
 sion to the purchaser. This provision was 
 early incorporated into the English statutes, 
 to guard against the many evils produced by 
 selling pretended titles to land. A pretended 
 title within the purview of the law is where 
 one person claims land of which another is 
 in possession holding adversely to the claim; 
 1 Plowd. S8a; Littleton § 347; Livingston 
 v. Iron Co., 9 Wend. (N. Y.) 511. And now 
 in most of the states, every grant of land, ex- 
 cept as a release, is void as an act of main- 
 tenance, if, at the time it is made, the lands 
 are in the actual possession of another per- 
 son claiming under a title adverse to that of 
 the grantor ; 4 Kent 446 ; Williams v. Jack- 
 son, 5 Johns. (N. Y.) 489 ; Wolcot v. Knight, 
 6 Mass. 418; Cornwell v. Clement, 87 Hun 
 50, 33 N. Y. Supp. 866 ; Sneed v. Hope (Ky.) 
 30 S. W. 20; contra, Hadduck v. Wilmarth, 
 5 N. H. 181, 20 Am. Dec. 570; Stoever v. 
 Whitman's Lessee, 6 Binn. (Pa.) 420; Mat- 
 thews v. Hevner, 2 App. Cas. D. C. 349. 
 See Champerty; Buying Titles. 
 
 In a more limited sense, an entry signifies 
 the simply going upon another person's prem- 
 ises for some particular purpose. The right 
 to land is exclusive, and every unwarranted 
 entry thereon without the owner's leave, 
 whether it be enclosed or not, or unless the 
 person entering have an authority given him
 
 ENTRY 
 
 1045 ENTRY AD COMMl'NEM LEGEM 
 
 by law, is a trespass; Adams v. Freeman, 12 
 Johns. (N. Y.) 408, 7 Am. Dec. 327 ; Wells v. 
 Howell, 19 Juhus. (N. Y.) 3S5. But the own- 
 er's license will sometimes be presumed, and 
 then will continue in force until it is actually 
 revoked by the owner; Dexter v. Hazen, 10 
 Johns. (N. Y.i'L'li;; Willes 195; Tayl. L. & 
 T. 700. See License. 
 
 Authority to enter upon lands is given by 
 law in many cases. See Ahrest. 
 
 The proprietor of chattels may under some ■ 
 circumstances enter the land of another up- 
 on which they are placed, and remove them, | 
 provided they are there without his default: 
 as, where his tree has Mown down into the 
 adjoining close by the wind, or his fruit has 
 fallen from a branch which overhung it; 20 J 
 Vin. Abr. 418; ii Greenl. Ev. § 027. 
 
 A landlord also may enter, to distrain or 
 to demand rent, to see whether waste has 
 been committed, or repairs made, and may go 
 into the house for either purpose, provided 
 the outer door be open; Cro. KVv/.. 876; 2 
 Greenl. Ev. § 027. So, if he is bound to re- ' 
 pair, he has a right of entry given him by 
 law for that purpose ; Moore 889. Or if trees 
 are excepted out of a demise, the lessee has 
 a right of entering to prune or fell them ; 
 11 Co. 53 ; Tayl. L. & T. § 707. A tenant be- 
 comes a trespasser after the expiration of 
 his term, though his holding is in good faith 
 under color of a reasonable claim of right; 
 and the landlord may forcibly enter thereon 
 and eject him without legal process ; Free- 
 man v. Wilson, 10 R. I. 524, 17 Atl. 921; Al- 
 len v. Keily, 17 R. I. 731, 24 Atl. 770, 10 L. 
 R. A. 798, 33 Am. St. Rep. 905. 
 
 So any man may throw down a public nui- 
 sance; and a private one may he thrown 
 down by the party grieved, and this before 
 any prejudice happens, hut only from the 
 probability that it may happen ; Webb, Poll. 
 Torts 513; 5 Co. 102. And see 1 Brownl. 
 212; 12 Mod. 510; W. Jones 221; 1 Stra. 
 683 ; Kiefer v. Carrier, 53 Wis. 404, 10 N. W. 
 502. To this end, the abator has authority 
 to enter the close in which it stands. See 
 Nuisance. 
 
 In Practice. The placing on record the 
 various proceedings in an action, in technical 1 
 language and order. The extreme strictness 
 of the old practice is somewhat relaxed, but 
 the term entry is still used in this connec- 
 tion. "Books of Entries" were formerly 
 much relied on, containing forms or prece- 
 dents of the proceedings in various actions as 
 they appear on record. 
 
 In the law books the words entry and en- 
 tered are frequently used as synonymous 
 with recorded ; Lent v. Ry. Co., 130 N. Y. 504, 
 29 N. E. 9SS. See Blatchford v. Newberry, 
 100 111. 4S4 ; McLaughlin v. Doherty, 51 Cal. 
 519. 
 
 For entry of public lands, see Pre-emption 
 Rigiit. For the terms entry of judgment, 
 entry of appearance, entry for copyright, see 
 Juugment; Appeabance; Coptkigut. 
 
 ENTRY AD C0MMUNEM LEGEM. A writ 
 which lay in favor of the reversioner, when 
 the tenant for term of life, tenant for term 
 of another's life, tenant by the curtet 
 tenant in dower had ad died. 
 
 lin, Law Diet Long Lished 
 
 in 1S33. 
 
 ENTRY, WRIT OF. In Old Practice. A 
 real action brought to recover the ; 
 of lands from one who wrongfully withholds 
 - ion thereof. 
 
 Such writs were said to be in the (j> 
 where the suit was brought against the par- 
 ty who committed the wrong; in the 
 where the tenant against whom the action 
 was brought was either heir or grantee of 
 the original wrong-doer; in the Per and 
 Uui, where there had been two descents, two 
 alienations, or descent and an alienation; id 
 the Post, where the wrong was removed be- 
 yond the degrees mentioned. 
 
 The above designations are derived from signifi- 
 cant Latin words in the respective forms a 
 to the cases given. A descent or alienation on the 
 part of the disseisor constituted a degree (see Co. 
 LiU. 2'.'j9 a) ; and at common law the writ could be 
 brought only within the degrees (two), the demand- 
 ant after that being driven to his writ of right. By 
 the statute of Marlbridge (q. v.), 52 Hen. III. c. 30 
 (a. d. 1267.), however, a writ of entry, after (post) 
 those degrees had been passed in the alienation of 
 the estate, was allowed. Where there had been no 
 descent and the demandant himself had been dis- 
 possessed, the writ ran, Prcccipe A quud reddat B 
 as terras, etc. de quibus idem A, etc. (com- 
 mand A to restore to B six acres of land, etc., of 
 which the said A, etc.) ; if there had been a descent 
 after the description came, the clause, in qui . 
 A non habet ingressum nisi per C qui illud i 
 isit (into which the said A, the tenant, has no entry 
 but through C, who demised it to him) ; where 
 there were two descents, nisi per D cui C illud dem- 
 isit (but by D, to whom C demised it) ; where it 
 was beyond the degrees, nisi post disseisinam quam 
 C (but after the disseisin which C, the original dis- 
 seisor, did, etc.). 
 
 The writ was of many varieties, also, according to 
 the character of the title of the claimant and the 
 circumstances of the deprivation of possession. 
 Booth enumerates and discusses twelve of these, of 
 which some are sur disseisin, sur intrusion, ad com- 
 muncm legem, ad terminum qui preterit, cui in vita, 
 cui ante divortium, etc. Either of these might, of 
 course, be brought in any of the four degrees, as the 
 circumstances of the case required. The use of 
 writs of entry has been long since abolished in Eng- 
 land ; but tbey are still in use in a modified form 
 in some states, as the common means of recovering 
 possession of realty against a wrongful occupant ; 
 Emerson v. Thompson, 2 Pick. (Mass.) 473; Tilson 
 v. Thompson, 10 Pick. (Mass.) 359; Bean v. Moulton, 
 5 N. II. 450; Rowell v. Mitchell. 68 Me. 21; Day 
 v. Philbrook, 85 Me. 90, 26 Atl. 999; Cole v. Inhab- 
 itants of Eastham, 124 Mass. 307; Wilbur v. Ripley, 
 124 Mass. 468; Pettingell t. Boynton. 139 Mass. 244, 
 29 N. E. 655 ; Tappan v. Power Co., 151 
 N. E. 703, 16 L. R. A. 353. See Stearn, Real Act. ; 
 Booth, R. A. ; Co. Litt. 238 6. 
 
 To maintain a writ of entry, the demand- 
 ant who declares on his own seisin, and al- 
 leges a disseisin, is required to prove only 
 that he has a right of entry and need not 
 prove an actual wrongful dispossession or an 
 adverse possession by the tenants; Twomey 
 v. Linnehau, 101 Mass. 91, 30 N. E. 390.
 
 ENURE 
 
 1046 
 
 EPISCOPUS 
 
 ENURE. To take or have effect To serve 
 to the use, benefit, or advantage of a person. 
 The word is often written inure. A release 
 to the tenant for life enures to him in rever- 
 sion ; that is, it has the same effect for him 
 as for the tenant for life. A discharge of the 
 principal enures to the benefit of the surety. 
 
 ENVOY. In International Law. A diplo- 
 matic agent sent by one state to another. 
 
 In accordance with the rules adopted at 
 the Congress of Vienna, in 1815, envoys are 
 placed among diplomatic agents of the sec- 
 ond class. They are not regarded as repre- 
 senting the person and dignity of their sov- 
 ereigns, and thus they rank below ambassa- 
 dors. On the other hand, they are accredit- 
 ed to the sovereign of the state and, except 
 for the obsolete privilege of treating with 
 the head of the foreign state personally, their 
 position is not substantially different from 
 that of an ambassador (g. v.). 1 Opp. 443- 
 446. 
 
 EO INSTANT I. At that instant; at tie 
 very or same instant ; immediately. 1 Bla. 
 Com. 196, 249 ; 1 Co. 13S ; Black, L. Diet. 
 
 EORLE (Sax.). An earl. Blount; 1 Bla. 
 Com. 39S. The governor of a province. 
 
 EPILEPSY. A disease of the brain, which 
 occurs in paroxysms with uncertain inter- 
 vals between them. 
 
 These paroxysms are characterized by the loss of 
 sensation, and convulsive motions of the muscles. 
 When long continued and violent, this disease is 
 very apt to end in dementia. It gradually destroys 
 the memory and impairs the intellect, and is one 
 of the causes of an unsound mind. 
 
 A statute forbidding the marriage of epi- 
 leptics is held not unconstitutional as unjust- 
 ly discriminating against certain persons; 
 Gould v. Gould, 78 Conn. 242, 61 Atl. 604, 
 2 L. R. A. (N. S.) 531. As to the effect of 
 concealment of epilepsy under this statute, 
 see Divorce. 
 
 EPIQUEYA. In Spanish Law. The benig- 
 nant and prudent interpretation of the law 
 according to the circumstances of the time, 
 place, and person. This word is derived 
 from the Greek, and is synonymous with the 
 word equity. See Murillo, nn. 67, 68. 
 
 EPISCOPACY. A form of government by 
 diocesan bishops; the office or condition of 
 a bishop. 
 
 EPISCOPALIA. Synodals, or payments 
 due the bishop. 
 
 EPISCOPUS (L. Lat). In Civil Law. A 
 superintendent; an inspector. Those in 
 each municipality who had the charge and 
 oversight of the bread and other provisions 
 which served the citizens for their daily 
 food were so called. Vicat; Du Cange. 
 
 A bishop. These bishops, or episcopi, were 
 held to be the successors of the apostles, 
 and have various titles at different times in 
 history and according to their different du- 
 ties. It was applied generally to those who 
 
 had authority or were of peculiar sanctity. 
 After the fall of the Roman empire they 
 came to have very considerable judicial pow- 
 ers. Du Cange ; Vicat ; Calvinus, Lex. 
 
 EPISTOL/E (Lat). In Civil Law. Re- 
 scripts; opinions given by the emperors in 
 cases submitted to them for decision. 
 
 Answers of the emperors to petitions. 
 
 The answers of counsellors (juris-con- 
 sulta), as Ulpian and others, to questions of 
 law proposed to them, were also called 
 cpistolcB. 
 
 Opinions written out. The term origin- 
 ally signified the same as literce. Vicat. 
 
 EQUAL PROTECTION OF THE LAWS. 
 
 The fourteenth amendment of the constitu- 
 tion of the United States, among other pro- 
 visions respecting the life, liberty, and prop- 
 erty of citizens, provides that no state shall 
 "deny to any person within its jurisdiction 
 the equal protection of the laws." This 
 provision has been subjected to much judi- 
 cial construction. The protection extends 
 to "acts of the state whether through its 
 legislative, its executive, or its judicial au- 
 thorities"; Scott v. McNeal, 154 U. S. 45, 14 
 Sup. Ct .1108, 38 L. Ed. 896; Virginia v. 
 Rives, 100 U. S. 313, 25 L. Ed. 667; Ex 
 parte Virginia, 100 U. S. 339, 25 L. Ed. 676 ; 
 Neal v. Delaware, 103 U. S. 370, 26 L. Ed. 
 567. In Chicago, B. & Q. R. Co. v. Chicago, 
 166 U. S. 226, 17 Sup. Ct 581, 41 L. Ed. 979, 
 Harlan, J., for the court, said: "But it must 
 be observed that the prohibitions of the 
 amendment refer to all the instrumentalities 
 of the state, to its legislative, executive, and 
 judicial authorities, and, therefore, whoever 
 by virtue of public position under a state 
 government deprives another of any right 
 protected by that amendment against dep- 
 rivation by the state, 'violates the constitu- 
 tional inhibition, and, as he acts in the name 
 and for the state, and is clothed with the 
 state's power, his act is that of the state.' 
 This must be so, or, as we have often said, 
 the constitutional prohibition has no mean- 
 ing, and 'the state has clothed one of its 
 agents with power to annul or evade it' " 
 See Gibson v. Mississippi, 162 U. S. 565, 16 
 Sup. Ct. 904, 40 L. Ed. 1075; Yick Wo v. 
 Hopkins, 118 U. S. 356, 6 Sup. Ct. 1064, 3.0 L. 
 Ed. 220. That amendment conferred no new 
 and additional rights, but only extended the 
 protection of the federal constitution over 
 rights of life, liberty, and property that 
 previously existed under all state constitu- 
 tions. Prior to the passage of this amend- 
 ment "the laws of all the states in terms 
 gave equal protection to all white persons. 
 This amendment, however, is general, and 
 forbids the denial to any class of persons the 
 equal protection of the laws by any state; 
 and there is no doubt that class legislation 
 is forbidden;" State v. Holden, 14 Utah, 71, 
 46 Pac. 756, 37 L. R. A. 103. "What must 
 constitute a denial of the equal protection
 
 EQUAL PROTECTION OF THE LAWS 1047 EQUAL PROTECTION OF THE LAWS 
 
 of the law will depend, in this view, in a 
 large measure, upon what rights of the law 
 have been conferred, or protection extended, 
 under the constitution and laws of the par- 
 ticular state in which the question arises. 
 As the constitution and laws of the states 
 vary, the proposition that each case must, 
 to an extent, depend upon its own facts, is 
 especially applicable to this class of cases. 
 When the state itself undertakes to deal 
 with its citizens by legislation, it does so un- 
 der certain limitations, and it may not sin- 
 gle out a class of citizens, and subject that 
 class to oppressive discrimination, especially 
 in respect to those rights so Important as to 
 be protected by constitutional guaranty. 
 That the prohibitions of that amendment are 
 now regarded as protecting the citizen 
 against a. denial of the equal protection of 
 the law, and against taking property without 
 due process of law, under the power of taxa- 
 tion, is a proposition clearly deducible from 
 the many causes in which that question has 
 been considered ;" Nashville, C. & St. L. Ry. 
 v. Taylor, 8b* Fed. 1G8, 1S5. See Privileges 
 and Immunities ; Civil Rights ; Due Pro- 
 cess of Law. 
 
 The guaranties of due process of law and 
 of equal protection of the laws are rights 
 secured to all persons whether citizens or 
 not. The two are in most cases treated to- 
 gether, though occasionally differentiated. 
 The guaranty means as well equal exemp- 
 tion from all burdens as equal accessibility 
 to the courts; In re Ah Fong, 3 Sawy. 114, 
 Fed. Cas. No. 102; San Mateo County v. It. 
 Co., 13 Fed. 722; Santa Clara County v. R. 
 Co., 18 Fed. 3S5 ; and it is not confined to 
 citizens, but applies to all persons, native 
 or foreign, within this country ; Eraser v. 
 Torley Co., 82 Fed. 257; In re Ah Fong, 3 
 Sawy. 141. Fed. Cas. No. 102; though not 
 non-residents; Steed v. Harvey, 18 Utah 3G7, 
 54 Pac. 1011, 72 Am. St Rep. 789. But in 
 State v. Ins. Co., 70 Conn. 590, 40 Atl. 465, 
 66 Am. St. Rep. 138, it was said to be only 
 for the benefit of persons physically present 
 within the territorial jurisdiction of the 
 state. A corporation is not a citizen within 
 the meaning of the amendment securing 
 privileges and immunities, but it is a person 
 under the equal protection clause; Pembina 
 Consol. Silver Min. & Mill. Co. v. Pennsyl- 
 vania, 125 U. S. 181, 8 Sup. Ct. 737. 31 L Ed. 
 650; McQuire v. R. Co., 131 la. 340, 108 N. 
 W. 902, 33 L. R. A. (N. S.) 706; Hammond 
 Beef & Provision Co. v. Best, 93 Me. 431, 40 
 Atl. 338, 42 L. R. A. 528; and so is a rail- 
 road corporation; Smyth v. Anus. 169 U. S. 
 466. 18 Sup. Ct. 418, 42 L. Ed. 819; and a 
 mutual insurance company; Hnber v. Mar- 
 tin, 127 Wis. 412, 105 X. W. 1031, 1135, 3 L. 
 R. A. (N. S.) 653, 115 Am. St. Rep. 1023, 7 
 Ann. Cas. 400. But a private corporation not 
 created by the laws of the state nor doing 
 business in it is not within its jurisdiction 
 so as to invoke the protection of the 14th 
 
 Amendment; Blake v. McClung, 172 
 239, 19 Sup. Ct 165, 4:; L. Ed. 432; Hawley 
 v. Hard, 72 Vt. 122. 17 AtL 41 l. 52 L B. a. 
 (X. S.) 195, 82 Am. St. Hep. 922; the only 
 limitation being when the corporation is in 
 the employment of the federal government 
 or in business which is strictly Intei 
 commerce; Pembina ConsoL Si er Min. & 
 Mill. Co. v. Pennsylvania. 125 U. S. 18 
 Sup. Ct. 737, 31 L. Ed. 650 
 
 The amendment "was not intended to com- 
 pel the state to adopt an iron rule of equal 
 taxation," nor "to prevent a state from ad- 
 justing its system of taxation in all proper 
 and reasonable ways"; Bell's Gap It. I 
 Pennsylvania. 134 U. S. 232, 10 Sup. Ct 533, 
 33 L. Ed. 892. Taxation must be equal and 
 uniform as well as regards the mode of as- 
 sessment as in the rate of charge; San .' ■: 
 County v. R. Co., 13 Fed. 722; Santa Clara 
 County v. R. Co., 18 id. 3S5; but this may 
 be done by different oliicers if the method is 
 uniform; San Francisco & N. P. B. Co. v. 
 State Board of Equalization, 60 Cal. 12. 
 
 The prohibition against the denial of equal 
 protection of the laws does not require that 
 the law shall have an equality of operation, 
 in the sense of an Indiscriminate operation 
 on persons merely as such, but on persons ac- 
 cording to their relation. It does not pre- 
 vent states from distinguishing, selecting and 
 classifying objects of legislation within a 
 wide range of discretion, provided only that 
 the discretion must be based upon some 
 reasonable ground ; Interstate Consol. St. 
 Ry. Co. v. Massachusetts, 207 U. S. 7'.'. 28 
 Sup. Ct. 26, 52 U Ed. Ill, 12 Ann. Cas. 555; 
 affirming Com. v. Ry. Co., 1S7 Mass 436, 73 
 N. E. 530, 11 L R. A. (N. S.) 973, 2 Ann. 
 Cas. 419; some difference which bears a just 
 and proper relation to the classification and 
 not a mere arbitrary selection; Magown v. 
 Bank, 170 U. S. 283, IS Sup. Ct. 594, 42 L. 
 Ed. 1037; Watson v. Maryland, 21S D. S. 
 173, 30 Sup. Ot. 644, 54 1- Ed. 987. I ■ 
 tion which regulates business may well make 
 distinctions dependent upon the degrees of 
 evil without being unreasonable or in con- 
 flict with the equal protection of the laws; 
 Heath & Milligan Mfg. Co. v. Worst, 207 D. 
 S. 33S, 2S Sup. Ct 111. 52 L Ed, 236. The 
 mere fact of classification will not relieve: 
 it must be based on reasonable grounds and 
 not mere arbitrary selection; but it suffices 
 if the statute is applicable to all persons un- 
 der like circumstances and docs i 
 individuals to an arbitrary exercise of pow- 
 er; Jones v. Brim, 165 D. S. 180, 17 Sup. Ct 
 282, 41 Ca Ed. 677; or if a law operates alike 
 upon all persons similarly situated : Walston 
 v. Ncvin, 128 U. S. 57S. 9 Sup. Ct 192, 32 L. 
 Ed. 544; or a law or course of proceedings 
 has been applied to any other person in the 
 state under similar circumstances and con- 
 ditions; Tinsley v. Anderson, 171 I*. S. 101. 
 18 Sup. Ct. 805, 43 L. Ed. 91 Legislation 
 may be limited as to objects or territory if
 
 EQUAL PROTECTION OF THE LAWS 1048 EQUAL PROTECTION OF THE LAWS 
 
 all persons subject to it are treated alike 
 under like circumstances and conditions; 
 Hayes v. Missouri, 120 U. S. 68, 7 Sup. Ct. 
 350, 30 L. Ed. 578; Giles v. Teasley, 193 U. 
 S. 148, 24 Sup. Ct. 359, 48 L. Ed. 655. It 
 cannot discriminate in taxation against for- 
 eign corporations lawfully doing business 
 within the state; Southern R. Co. v. Greene, 
 21G U. S. 400, 30 Sup. Ct. 2S7, 54 L. Ed. 536, 
 17 Ann. Cas. 1247. 
 
 "Classification must have relation to the 
 purpose of the legislature, but logical ap- 
 propriateness of the inclusion or exclusion 
 of objects or persons is not required. A 
 classification may not be merely arbitrary, 
 but necessarily there must be great freedom 
 of discretion even though it result in 'ill- 
 advised, unequal and oppressive legisla- 
 tion' ;" Heath & Milligan Mfg. Co. v. Worst, 
 207 U. S. 338, 28 Sup. Ct. 114, 52 L. Ed. 23G, 
 quoting Mobile County v. Kimball, 102 U. S. 
 691, 26 L. Ed. 238. 
 
 In order to avoid denial of equal protec- 
 tion of the laws the police power must be 
 exercised reasonably and not arbitrarily ; 
 Tick Wo v. Hopkins, 118 U. S. 3G5, 6 Sup. Ct. 
 1064, 30 L. Ed. 220. 
 
 The guaranties for equal protection of the 
 laws and of due process of law are not vio- 
 lated by discrimination in the statute ; Clark 
 v. Kansas City, 170 U. S. 114, 20 Sup. Ct. 
 284, 44 L. Ed. 392. 
 
 As there is no vested right in procedure, 
 the guaranty of equal protection of the laws 
 is not violated by change of previous deci- 
 sions of the state court on questions of pro- 
 cedure; Backus v. Union Depot Co., 169 U. 
 S. 557, 18 Sup. Ct. 445, 42 L. Ed. 853. 
 
 What may be regarded as a denial of the 
 equal protection of the laws is a question 
 not always easily determined, as the deci- 
 sions of this court and the highest courts of 
 the states will show. It is sometimes diffi- 
 cult to show that a state enactment, having 
 its source in a power not controverted, in- 
 fringes rights protected by the national con- 
 stitution. No rule can be formulated that 
 will cover every case. But upon this general 
 question we have said that the guaranty of 
 the equal protection of the law means "that 
 no person or class of persons shall be de- 
 nied the same protection of the laws which 
 is enjoyed by other persons or other classes 
 in the same place and in like circumstances." 
 Connolly v. Union Sewer Pipe Co., 184 U. S. 
 540, 558, 22 Sup. Ct. 431, 46 L. Ed. 679, quot- 
 ing Bowman v. Lewis, 101 U. S. 22, 25 L. Ed. 
 989; In re Doo Woon, 18 Fed. 898. 
 
 The South Carolina supreme court, in ref- 
 erence to the law imposing special liability 
 for fires caused by locomotives, thus com- 
 ments on the federal cases "Let it ,be noted 
 . . . the classification for the imposition 
 of special liability was not affected by the 
 fact that there were other common carriers 
 operating with steam which might communi- 
 cate fire or whose employes might sustain 
 
 injury through the negligence of their fellow 
 servants ; thus showing that a classification 
 need not include all engaged in a general 
 business, as the business of carrying freight 
 and passengers, it may simply embrace a 
 more limited class, who carry freight and 
 passengers in a particular way, or by par- 
 ticular instrumentalities." McCandless v. R. 
 Co., 38 S. C. 116, 16 S. E. 429, 18 L. R A. 
 440. 
 
 State laws or official action held not to 
 deny the equal protection of the laws are: 
 Prescribing rules of evidence, as by prevent- 
 ing Chinese from testifying in a case where 
 a white person is a party ; People v. Brady, 
 40 Cal. 198, 6 Am. Rep. 604 (but under the 
 Civil Rights Bill, negroes were entitled to 
 the benefit of this law ; People v. Washing- 
 ton, 36 Cal. 658) ; prohibiting the landing of 
 lewd women from passenger steamers; Ex 
 parte Ah Fook, 49 Cal. 402; regulating 
 slaughter houses; Slaughter-House Cases, 16 
 Wall. (U. S.) 36, 21 L. Ed. 394; authorizing 
 the recovery of double value for property de- 
 stroyed by railroad trains ; Tredway v. R. 
 Co., 43 la. 527 ; excluding women from em- 
 ployment in saloons or other places where in- 
 toxicating liquor is sold; Ex parte Hayes, 
 98 Cal. 555, 33 Pac. 337, 20 L. R. A. 701; 
 Foster v. Board of Police Com'rs, 102 Cal. 
 483, 37 Pac. 763, 41 Am. St. Rep. 194; State 
 v. Reynolds, 14 Mont. 383, 36 Pac, 449 ; City 
 of Hoboken v. Goodman, 68 N. J. L. 217, 51 
 Atl. 1092; Bergman v. Cleveland, 39 Ohio 
 St. 651 ; State v. Considine, 16 Wash. 358, 47 
 Pac. 755; In re Considine, 83 Fed. 157; but 
 contra, In re Maguire, 57 Cal. 604, 40 Am. 
 Rep. 125 (and an ordinance making it a mis- 
 demeanor for any woman to go into a bulid- 
 ing where liquor is sold, or to stand within 
 fifty feet of such a building, was held an un- 
 necessary interference with individual liber- 
 ty ; Gastenau v. Com., 108 Ky. 473, 56 S. W. 
 705, 49 L. R. A. Ill, 94 Am. St. Rep. 386) ; 
 prohibiting women from frequenting places 
 for the sale of intoxicating liquors ; Ex parte 
 Smith, 38 Cal. 709; People v. Case, 153 Mich. 
 98, 116 N. W. 558, 18 L. R. A. (N. S.) 657; 
 Cronin v. Adams, 192 U. JS. 108, 24 Sup. Ct. 
 219, 48 L. Ed. 365, affirming Adams v. Cron- 
 in, 29 Colo. 488, 69 Pac. 590, 63 L. R. A. 61 ; 
 imposing more severe penalties for adultery 
 between persons of different races ; Ellis v. 
 State, 42 Ala. 525; Ford v. State, 53 Ala. 
 150 ; Green v. State, 58 Ala. 190, 29 Am. Rep. 
 739; Pace v. Alabama, 106 U. S. 583, 1 Sup. 
 Ct. 637, 27 L. Ed. 207; forbidding marriages 
 between whites and blacks ; Hoover v. State, 
 59 Ala. 57 ; Ex parte Francois, 3 Woods 367, 
 Fed. Cas. No. 5,047; Ex parte Kinney, 3 
 Hughes 9, Fed. Cas. No. 7,825 ; or declaring 
 such marriages null and void; In re Hobbs, 
 1 Woods 537, Fed. Cas. No. 6,550; regulating 
 the charges of storage warehouses ; Munn v. 
 Illinois, 94 U. S. 113, 24 L. Ed. 77 ; Munn v. 
 People, 69 111. 8.0; providing for territorial 
 and municipal regulations for different part*
 
 EQUAL PROTECTION OF THE LAWS 1040 EQUAL PROTECTION OF THE LAWS 
 
 of the slate ; Missouri v. Lewis, 101 U. S. 22, 
 25 L. Ed. 9S9; forbidding bankers and bro- 
 kers, knowing that they are insolvent, to re- 
 ceive money; Baker v. State, 54 Wis. 3GS, 12 
 N. W. 12; Imposing a tax on corporations 
 measured by the amount of dividends paid, 
 part of such dividends being derived from 
 capital invested in United States bonds ex- 
 empted from taxation ; • Home Ins. Co. v. 
 New York. 134 U. S. 594, 10 Sup. Ct. 593, 33 
 L. Ed. 1025; the provision of the Mississippi 
 constitution prescribing a test of literacy for 
 voting; Williams v. Mississippi, 170 U. S. 
 213, 18 Sup. Ct. 583, 42 L. Ed. 1012; an or- 
 der dismissing a writ of habeas corpus and 
 remanding to custody a prisoner held in con- 
 tempt when it appeared that the same proce- 
 dure would be applied to any other person 
 in the state under similar circumstances and 
 conditions; Tinsley v. Anderson, 171 U. S. 
 101, IS Sin.. Ct. S05, 43 L. Ed. 91; as a 
 penalty for non-compliance with police regu- 
 lations ; Dow v. Beidelman, 49 Ark. 455, 5 
 S. W. 7 IS; allowing a reasonable attorney's 
 fee as part of a judgment against a railroad 
 company for damage by fire; Atchison, T. 
 & S. F. R. Co. v. Matthews, 174 U. S. 90, 19 
 Sup. Ct. 609, 43 L. Ed. 909 (distinguishing 
 Gulf, C. & S. F. R. Co. v. Ellis, 165 U. S. 150, 
 17 Sup. Ct. 255, 41 L. Ed. 006, where a stat- 
 ute, allowing such fees in suits against rail- 
 road companies, for ordinary claims, was 
 held unconstitutional) ; allowing a defendant 
 on trial for homicide a less number of chal- 
 lenges with a struck jury than an ordinary 
 one; Brown v. New Jersey, 175 U. S. 172, 20 
 Sup. Ct. 77, 44 L. Ed. 119; prohibiting any 
 person, corporation or firm from issuing any 
 order, etc., payable otherwise than in money 
 — what are commonly known as store or- 
 ders ; Johnson, Lytle & Co. v. Spartan Mills, 
 68 S. C. 339, 47 S. E. 695, 1 Ann. Cas. 409; 
 Frorer v. People, 141 111. 171, 31 N. E. 395, 
 10 L. R. A. 492; establishing separate 
 schools for colored children; Bertonneau v. 
 Board, 3 Woods 177. Fed. Cas. No. 1,301; 
 Ward v. Flood, 48 Cal. 30, 17 Am. Rep. 405 ; 
 State v. McCann, 21 Ohio St. 198; Chrisman 
 v. City of Brookhaven, 70 Miss. 477, 12 
 South. 458; Corey v. Carter. 4S Ind. 327, 17 
 Am. Rep. 738; see Marshall v. Donovan, 10 
 Bush. (Ky.) 6S1; denial of injunction against 
 maintaining a high school for white children 
 while failing to maintain one for colored chil- 
 dren ; dimming v. County Board of Educa- 
 tion, 175 U. S. 528, 20 Sup. Ct. 197, 14 L. EcL 
 262; imposing upon railroad companies fu- 
 ture liabilities for damages to employees by 
 negligence of their fellow servants, etc., since 
 it met a particular necessity, and all rail- 
 road companies without distinction were 
 made subject to the same liability ; Missouri 
 Pac. Ry. Co. v. Mackey, 127 U. S. 205, 8 Sup. 
 Ct 1161, 32 L Ed. 107 ; Tullis v. R. Co., 175 
 U. S. 348, 20 Sup. Ct. 136, 44 L. Ed. 192. mak- 
 ing railroad companies liable for property 
 destroyed by fire communicated by their 
 
 locomotives, even though the liability did not 
 depend on any negligence of the railroad 
 company; St Louis & S. 1 . Ry. Co. v. Math- 
 ews, 165 U. S. 1, 17 Sup. Ct. 243, 41 L. Ed. 
 611; McCandless v. 1;. Co., 38 S. C. 116, 16 
 S. E. 429, IS L. R. A. 440; giving 
 for sheep grazing on public lands; Bown v. 
 Walling, 204 U. S. 320, 27 Sup. Ct 292, 51 
 L. Ed. 503; taxing transfers of cor; 
 stock; New York v. Reardon, 204 D. S. 152, 
 27 Sup. Ct. 188, 51 L. Ed. 415, 9 i 
 736; the separation of white and blacl 
 sons in public coir- Chilton v. By. 
 
 Co., 114 Mo. 88, 21 S. \V. 457, 19 L. B. A. 269; 
 U. S. v. Stanley. 109 1*. S. 3, 3 Sup. Ct 18, 21 
 L. Ed. S35; West Chester & P. R. Co. v. 
 Miles, 55 Pa. 209, 93 Am. Dec. 744; Ander- 
 son v. R. Co., 62 Fed. 40; or in theatres If 
 equally good seats were provided for both; 
 Younger v. Judah, 111 Mo. 303, 19 S. \V. 1109, 
 
 16 L. B. A. 558, 33 Am. St. Rep. 527 (but to 
 require colored persons to occupy par; 
 seats was held a violation of the Illinois 
 Civil Rights Act of June 10, 1885; Baylies 
 v. Curry, 128 111. 287, 21 N. B. 595). 
 
 In Adair v. U. S., 208 U. S. 161, 28 Sup. Ct. 
 277, 52 L. Ed. 436, 13 Ann. Cas. 764, : 
 ing U. S. v. Adair, 152 Fed. 737, it was held 
 that congress could not make it a criminal 
 offence against the United States for a car- 
 rier engaged in interstate commerce to dis- 
 charge an employe simply because of mem- 
 bership in a labor organization, and that 
 the provision to that effect in section 10 of 
 the Act of June 1, 1898, was an invasion of 
 personal liberty as well as of the right of 
 property guaranteed by the Yth Amendment 
 to the constitution and therefore uneiu 
 able. 
 
 Statutes held to violate the guaranty of 
 "equal protection of the laws are: A law 
 taxing miners, which discriminates between 
 persons of different races ; U. S. v. Ja 
 3 Sawy. 59, Fed. Cas. No. 15,459; excluding 
 colored children from the benefits of the pub- 
 lic school system ; Ward v. Flood. 48 Cal 30, 
 
 17 Am. Rep. 405 ; or from sharing in the use 
 of the common school fund; Dawson v. Lee, 
 S3 Ky. 49 (but not establishing separate 
 schools, see supra); discriminating against 
 non-residents, with respect to legal i 
 dies; Fearson v. City of Portland, 69 Me. 
 27S, 31 Am. Rep. 270; discriminating 
 tween Chinese and other aliens ; Baker v. 
 Portland, 5 Sawy. 566, Fed. Cas. No. 777: 
 In re Parrott, 6 Sawy. 349. 1 Fed. 481; a city 
 ordinance requiring the cutting of a prison- 
 er's hair, it being considered more degrading 
 to the Chinese; Ho Ah Kon v. Nun 
 Sawy. 552, Fed. Ca forbidding 
 the employment of Chinese; In re Parrott, 1 
 Fed. 481, 6 Sawy. ::r.>; prohibiting aliens 
 incapable of acquiring citizenship from fish- 
 ing in public waters; In re Ah Chong. 
 Sawy. 451, 2 Fed. 733; authorizing the over- 
 seers of the poor to commit paupers and 
 vagrants to the workhouse without trial:
 
 EQUAL PROTECTION OF THE LAWS 1050 EQUAL PROTEOTION OF THE LAWS 
 
 City of Portland v. City of Bangor, Go Me. 
 120, 20 Am. Rep. 6S1 ; prescribing a penalty 
 and counsel fees in suits on insurance poli- 
 cies ; Gulf, C. & S. F. Ry. Co. v. Ellis, 1G5 
 U. S. 150, 17 Sup. Ct. 255, 41 L. Ed. GGG ; 
 St. Louis, I. M. & S. Ry. Co. v. Williams, 49 
 Ark. 492, 5 S. W. 883 ; San Antonio & A. R. 
 Ry. Co. v. Wilson (Tex.) 19 S. W. 910; Wil- 
 der v. Ry. Co., 70 Mich. 3S2, 38 N. W. 289; 
 Lafferty v. Ry. Co., 71 Mich. 35, 38 N. W. 
 660; New York Life Ins. Co. v. Smith 
 (Tex.) 41 S. W. 6S0. But it is said in a 
 dissenting opinion in Gulf, C. & S. F. Ry. Co. 
 v. Ellis, 165 U. S. 150, 17 Sup. Ct 255, 41 L. 
 Ed. 666: "The constitutionality of statutes 
 allowing plaintiffs only to recover an at- 
 torney's fee as part of the judgment in par- 
 ticular classes of actions selected by the 
 legislature appears to have been upheld by 
 the courts of most of the states in which it 
 has been challenged ; Kansas Pac. Ry. Co. 
 v. Mower, 16 Kan. 573 ; Kansas Pac. Ry. Co. 
 v. Yanz, id. 583; Missouri, K. & T. Ry. Co. 
 v. Simonson, 64 Kan. 802, 68 Pac. 653, 57 L. 
 R. A. 765, 91 Am. St. Rep. 248 ; Peoria, D. & 
 E. Ry. Co. v. Duggan, 109 111. 537, 50 Am. 
 Rep. 619; Vogel v. Pekoe, 157 111. 339, 42 N. 
 E. 386, 30 L R. A. 491 ; Dow v. Beidelman, 
 49 Ark. 455, 5 S. W. 718 ; Perkins v. Ry. Co., 
 103 Mo. 52, 15 S. W. 320, 11 L. R. A. 426; 
 Burlington, C. R. & N. Ry. Co. v. Dey, 82 
 la. 312, 48 N. W. 98, 12 L. R. A. 436, 31 Am. 
 St. Rep. 477 ; Wortman v. Kleinschmidt, 12 
 Mont. 316, 30 Pac. 280; Gulf, C. & S. F. Ry. 
 Co. v. Ellis, 87 Tex. 19, 26. S. W. 985; Cam- 
 eron v. Ry. Co., 63 Minn. 384, 65 N. W. 652, 
 31 L. R. A. 553 ; Morris-Scarboro-Moffit Co. 
 v. Express Co., 146 N. C. 167, 59 S. E. 667, 15 
 L. R. A. (N. S.) 983; Gulf, C. & S. F. Ry. 
 Co. v. Ellis, 165 U. S. 150, 17 Sup. Ct. 255, 41 
 L. Ed. 666, where it is further said : "The 
 legislature of a state must be presumed to 
 have acted from lawful motives, unless the 
 contrary appears upon the face of the stat- 
 ute. If, for instance, the legislature of 
 Texas was satisfied, from observation and 
 experience, that railroad corporations with- 
 in the state were accustomed, beyond other 
 corporations or persons, to unconscionably 
 resist the payment of such petty claims, with 
 the object of exhausting the patience and 
 means of the claimants by prolonged litiga- 
 tion and perhaps repeated appeals, railroad 
 corporations alone might well be required, 
 when ultimately defeated in such a claim, to 
 pay a moderate attorney's fee, as a just, 
 though often inadequate, contribution to the 
 expenses to which they had put the plain- 
 tiff in establishing a rightful demand." 
 
 An act was held void providing that a 
 prisoner who escaped and was retaken 
 should be punished by imprisonment for a 
 term equal to his original one ; In re Mallon, 
 16 Idaho 737, 102 Pac. 374, 22 L. R. A. (N. 
 S.) 1123; so also a statutory provision for 
 the imprisonment of one who after receiving 
 advances commits a breach of a contract for 
 
 farm labor; Ex parte Hollman, 79 S. C. 9, 
 GO S. E. 19, 21 L. R. A. (N. S.) 242 with 
 note, 14 Ann. Cas. 1105; and a statute regu- 
 lating railroad rates, in which the penalties 
 for violation were so excessive and enormous 
 as to deter and intimidate parties affected 
 from testing its validity in the courts; Ex 
 parte Young, 209 U. S. 123, 28 Sup. Ct. 441, 
 52 L. Ed. 714, 13 L. R. A. (N. S.) 932, 14 
 Ann. Cas. 11G4. 
 
 When a state, either through its legisla- 
 ture, courts, or administrative officers, ex- 
 cludes persons of the African race, solely be- 
 cause of race or color, from serving as grand 
 jurors in the prosecution of a person of that 
 race, the equal protection of the laws is de- 
 nied him and a judgment of the state court, 
 sustaining the conviction will be reversed ; 
 Carter v. Texas, 177 U. S. 4-12, 20 Sup. Ct. 
 6S7, 44 L. Ed. 839; Strauder v. West Vir- 
 ginia, 100 U. S. 303, 25 L. Ed. 664; Neal v. 
 Delaware, 103 U. S. 370, 26 L. Ed. 567 ; Gib- 
 son v. Mississippi, 162 U. S. 565, 16 Sup. Ct. 
 905, 40 L. Ed. 1075 ; but statutes prescribing 
 counsel fees have been in some distinguish- 
 ing cases upheld, as in the case of wrongful- 
 ly discharged railroad employees ; St. Louis, 
 I. M. & S. Ry. Co. v. Paul, 173 U. S. 409, 19 
 Sup. Ct. 419, 43 L. Ed. 746; or statutes 
 against railroad companies for damage by 
 fire from locomotives; Atchison, T. & S. F. 
 R. Co. v. Matthews, 174 U. S. 96, 19 Sup. Ct. 
 609, 43 L. Ed. 909; and a law requiring 
 monthly payment of corporation employees; 
 Skinner v. Min. Co., 96 Fed. 743 ; or com- 
 pelling railroad companies to pay employees 
 at the time of discharge ; St. Louis, I. M. & 
 S. Ry. Co. v. Paul, 64 Ark. 83, 40 S. W. 705, 
 37 L. R. A. 504, 62 Am. St. Rep. 154; or to 
 furnish free return transportation to ship- 
 pers of live stock ; George v. Ry. Co., 214 Mo. 
 551, 113 S. W. 1099, 127 Am. St Rep. 690; 
 an act punishing any one who by threats or 
 extortion obtains money from citizens or res- 
 idents of a state; Greene v. State, 83 Neb. 
 84, 119 N. W. 6, 131 Am. St Rep. 626 ; mak- 
 ing it a misdemeanor to admit a child under 
 sixteen to theatres except entertainments on 
 piers ; In re Van Horne ; 74 N. J. Eq. 600, 70 
 Atl. 986 ; giving the owner of live stock acci- 
 dentally killed or destroyed on a railroad 
 track double its value ; Atchison & N. R. Co. 
 v. Baty, 6 Neb. 37, 29 Am. Rep. 356 ; one re- 
 quiring owners and operators of coal mines 
 to weigh coal in a certain specified manner; 
 Millett v. People, 117 111. 294, 7 N. E. 631, 
 57 Am. Rep. 869. 
 
 Probably the most numerous cases requir- 
 ing the construction of this guaranty have 
 arisen under statutes establishing some 
 classification of persons, property or occupa- 
 tions. 
 
 The classification "must always rest upon 
 some difference which bears a reasonable 
 and just relation to the act in respect of 
 which the classification is proposed, and can 
 never be made arbitrarily and without any
 
 EQUAL PROTECTION OF THE LAWS U)51 EQUAL PROTECTION OF THE LAWS 
 
 such basis. . . . But arbitrary selection 
 can never be justified by calling it Cl 
 cation. The equal protection demanded by 
 the Fourteenth Amendment forbids this. 
 
 . . . It is apparent that the mere fact of 
 classification is not sufficient to reli< 
 statute from the reach of the equality clause 
 of the Fourteenth Amendment, and that in 
 all cases it must appear not only that a 
 classification has been made, but also that 
 it is one based upon some reasonable ground 
 — some difference which bears a just and 
 proper relation to the attempted classifica- 
 tion — and is not a mere arbitrary selection." 
 Gulf, C. & S. F. Ry. Co. v. Ellis, 165 U. S. 
 150, 17 Sup. Ct. 255, 41 L. Ed. 666, quoted in 
 Connolly v. Pipe Co., 184 U. S. 510, 560, 22 
 Sup. Ct. 431, 46 L. Ed. »m!>; Cotting v. Stock 
 Yards Co., 1S3 U. S. 70. 22 Sup. Ct. 30, 46 
 L. Ed. 02 ; Bachtel v. Wilson, 204 U. S. 41, 27 
 Sup. Ct. 243, 51 L. Ed. 357. 
 
 "The equal protection of the laws which, 
 by the Fourteenth Amendment, no state can 
 deny to the individual, forbids legislation, 
 in whatever form it may lie enacted, by 
 which the property of an individual is, with- 
 out compensation, wrested from him for the 
 benefit of another or of the public." Cotting 
 v. Stock Yards Co., 183 U. S. 70, 87, 22 Sup. 
 Ct 30, 46 L. Ed. 02 (quoting Reagan v. Loan 
 & Trust Co., 154 U. S. 362, 309, 14 Sup. Ct. 
 1047, 38 L. Ed. 1014), where it was held that 
 a classification between stockyards doing a 
 large business and those doing a small busi- 
 ness was invalid. 
 
 A* state may without violating the guaran- 
 ty put into one class all engaged in business 
 of a special and public character and require 
 them to perform a duty which they can do 
 better and more quickly than others, and im- 
 pose a penalty for non-performance; Sea- 
 board Air Line Ry. v. Seegers, 207 U. S. 73, 
 28 Sup. Ct. 28, 52 L. Ed. 108; where a penal- 
 ty for the failure of a railroad to adjust 
 and average claims within forty days was 
 held constitutional. 
 
 Mere direction of the state law that under 
 given circumstances the venue shall be chang- 
 ed does not violate the equal protection of 
 the laws; Cincinnati Street. Ry. Co. v. Snell. 
 193 U. S. 30, 24 Sup. Ct. 319, 48 L. Ed. 604; 
 where it was said: "But it is clear that the 
 Fourteenth Amendment in no way under- 
 takes to control the Rower of a state to de- 
 termine by what process legal rights may be 
 asserted or ieu r al obligations enforced, pro- 
 vided the method of procedure adopted for 
 these purposes gives reasonable notice and 
 affords a fair opportunity to be heard before 
 the issues are derided." "It is fundamental 
 rights which the Fourteenth Amendment 
 safeguards and not the mere form which a 
 state may see proper to designate for the en- 
 forcement and protection of such rigl 
 
 The following statutes have been held to 
 enact a reasonable classification, valid as 
 not denying equal protection of the laws: 
 
 Distinguishing between street railways and 
 steam railroads in imposing a tax; Savan- 
 nah, T. & I. of II. Ry. Co. v. Savannah, 19S 
 U. S. 392, 25 Sup. 19 r.. Ed. 
 
 between life and health l lire, 
 
 marine and Inland Insur < with 
 
 respect to taxation; Fidelity Mut. 
 v. .Met t!«r. 185 C. S. 62, -10 
 
 L. Ed. 922; between bituminous • 
 
 and block coal mines as to working; 1 
 v. Indiana, 229 I'. 8. 26, 33 Sup. I 
 L. Ed. — ; a distinction in Inheritan 
 laws between lineal and collateral rel: 
 Hillings v. Illinois, 1S8 U. S. 97, 2 
 272. 47 L. Ed. 400; as also the exemption of 
 step-children from the collateral inheritance 
 tax on bequests and devises from step-par- 
 ents; Com. v. Randall, 225 Pa 197, 73 Atl. 
 1109; the exemption in a medical r< _ 
 tion act of those who had practiced before a 
 certain date or gratuitously or in a hospital; 
 Watson v. Maryland, 218 U. S. 17::. 30 Sup. 
 Ct. 044, 54 L. Ed. 987; between individuals 
 and corporations, the classification between 
 the two being approved because of the dif- 
 ference of the power which the state may 
 exercise over the doing of business within 
 its borders by an individual on the one hand 
 or a corporation on the other: Hammond 
 Packing Co. v. Arkansas. 212 E. S. 322, 29 
 Sup. Ct. 370, 53 L. Ed. 530, 15 An: 
 of a municipal ordinance distinguishing be- 
 tween those having cows inside and those 
 outside a city; Adams v. City of Milwaukee, 
 
 228 U. S. 572, 33 Sup. Ct. 610, 57 L. Ed. ; 
 
 a provision of one gas rate act for the mu- 
 nicipality and another for individual con- 
 sumers; Willcox v. Gas Co.. 212 1'. S. 19, 
 29 Sup. Ct. 192, 53 L. Ed. 3S2. 15 Ann. Cas. 
 1034 ; a discrimination between the residen- 
 tial and commercial portions of a city as to 
 the height of buildings based on practical 
 and not merely aesthetic grounds; Welch v. 
 Swasey. 214 V. S. 91, 29 Sup. Ct. 567, 53 I.. 
 Ed. 923; or excepting churches from a stat- 
 ute limiting the height of buildings; Coch- 
 ran v. Preston, 108 Md. 220, 70 Atl. 113, 23 
 L. R. A. (N. S.) 1163. 120 Am. St. Rep. 432, 
 15 Ann. Cas. 1048; a discrimination by a mu- 
 nicipal corporation for the purpose of taxa- 
 tion between automobiles and other vehicles; 
 Kersey v. Terre Haute, 161 Ind. 171. 68 X. E. 
 1027; classification of distilled spirits in 
 bond as distinguished from other property in 
 regard to the payment of interest on t 
 Thompson v. Kentucky, 209 D. S. 34 
 Sup. Ct. 533, 52 E. Ed. 
 
 So of the following: A state statute 
 Imposing a license tax on persons compound- 
 ing, rectifying, adulterating or blending dis- 
 tilled spirits does not deny equal protection 
 of the laws because it discriminates in favor 
 of the distilleries and rectifiers or straight 
 distilled spirits; Brown-Fonnan Co. v. Com- 
 monwealth of Kentucky, 217 r. S. 563, 30 
 Sup. ct. 578, 54 I.. Ed. 883, where the court 
 accepted the construction by the highest
 
 EQUAL PROTECTION OF THE LAWS 1052 EQUAL PROTECTION OF THE LAWS 
 
 court of the state that the tax in question 
 was not a property tax but a license tax im- 
 posed on the doing of a business. Other 
 classifications held valid are one prohibiting 
 drumming or soliciting on trains for any ho- 
 tel, lodging house, eating house, bath house, 
 physician, masseur, surgeon or other medi- 
 cal practitioner; Williams v. Arkansas, 217 
 U. S. 79, 30 Sup. Ct. 493, 54 L. Ed. 673, 18 
 Ann. Cas. S65, affirming 85 Ark. 470, 108 S. 
 W. 838, 26 L. R. A. (N. S.) 4S2, 122 Am. St. 
 Rep. 47 (where as in some other cases the 
 statute was said by the court to meet an ex- 
 isting condition which was required to be 
 met) ; of express companies with railroad 
 and telegraph companies as subject to the 
 unit rule; Adams Exp. Co. v. Ohio State 
 Auditor, 165 U. S. 194, 17 Sup. Ct. 305, 41 
 L. Ed. 683, where the court said that there 
 was "doubtless a distinction between the 
 property of railroad and telegraph companies 
 and that of express companies, the physical 
 unity existing in the former is lacking in 
 the latter ; but there is the same unity in the 
 use of the entire property for one specific 
 purpose and there are the same elements of 
 value arising from such use." The case in- 
 volved the constitutionality of an act requir- 
 ing the apportionment of the value of the 
 property of the express companies among the 
 several counties, in which they did business, 
 in the proportion which the gross receipts 
 in each county bore to the gross receipts in 
 the state and provided for a tax for county 
 purposes on such proportion. 
 
 A statute defining express companies as 
 those carrying on the business of transporta- 
 tion under contracts with steamboat com- 
 panies or railroads did not invidiously dis- 
 criminate as to express companies by ex- 
 empting other companies from carrying ex- 
 press matter in vehicles of their own; 
 Pacific Exp. Co. v. Seibert, 142 U. S. 339, 12 
 Sup. Ct. 250, 35 L. Ed. 1035 ; nor did a state 
 license tax on the business of refining sugar 
 and molasses, by exempting planters and 
 farmers refining their own sugar and molas- 
 ses, deny equal protection of the laws ; Amer- 
 ican Sugar Refining Co. v. Louisiana, 179 U. 
 S. 89, 21 Sup. Ct. 43, 45 L. Ed. 102 ; nor those 
 which adjust the revenue laws of the state to 
 favor certain industries ; Quong Wing v. Kir- 
 kendall, 223 U. S. 59, 32 Sup. Ct. 192, 56 L. Ed. 
 350; nor a collateral inheritance tax impos- 
 ing a higher rate on strangers in blood and 
 on larger sums; Magoun v. Sav. Bank, 170 
 U. S. 2S3, 18 Sup. Ct. 594, 42 L. Ed. 1037. 
 The objection must come- from one claiming 
 to be discriminated against; Darnell v. In- 
 diana, 226 U. S. 390, 33 Sup. Ct 120, 57 L. 
 Ed. 267, following New York v. Reardon, 204 
 U. S. 152, 27 Sup. Ct. 188, 51 L. Ed. 415, 9 
 Ann. Cas. 736, distinguishing Spraigue v. 
 Thompson, 118 U. S. 90, 6 Sup. Ct. 988, 30 
 L. Ed. 115. 
 A state statute providing that "all tele- 
 
 graph companies doing business in this state 
 shall be liable in damages for mental anguish 
 or suffering even in the absence of bodily in- 
 jury or pecuniary loss for negligence in re- 
 ceiving, transmitting or delivering messages" 
 is based upon a reasonable and not an arbi- 
 trary classification and is not an unconstitu- 
 tional discrimination against telegraph com- 
 panies ; Ivy v. Tel. Co., 165 Fed. 371 ; nor is 
 one which recognizes a difference between 
 ordinary vehicles and electric cars; Detroit, 
 Ft. W. & B. I. Ry. v. Osborn, 189 U. S. 383, 
 23 Sup. Ct. 540, 47 L. Ed. 860, where it was 
 held that the commissioner of railroads had 
 power to require an electric company to in- 
 stall safety devices and share the cost with 
 the steam railroad on the same street not- 
 withstanding -the latter was the junior occu- 
 pant. The exception of newspapers, etc., in 
 a law forbidding the use of the flag for ad- 
 vertising purposes, does not violate the pro- 
 hibition; Halter v. Nebraska, 205 U. S. 34, 
 27 Sup. Ct. 419, 51 L. Ed. 696, 10 Ann. Cas. 
 525 ; nor does singling out the milk business, 
 in a city, as a proper subject of regulation ; 
 New York v. Van De Carr, 199 U. S. 552, 26 
 Sup. Ct. 144, 50 L. Ed. 305 ; nor the selection 
 of mine owners as a class to be subjected to 
 responsibility for the defaults of certain em- 
 ployees ; Wilmington Mining Co. v. Fulton, 
 205 U. S. 60, 27 Sup. Ct 412, 51 L. Ed. 708. 
 Classification was held proper between 
 itinerant dealers in sewing machines and 
 those selling in regularly established places 
 of business ; Singer Sewing Mach. Co. v. 
 Brickell, 199 Fed. 654; and also one of rail- 
 road employees as distinct from those of oth- 
 er carriers; Mondou v. R. Co., 223 U. S. 1, 
 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. 
 S.) 44; and a statute prohibiting the sale of 
 adulterated milk; St. John v. New York, 201 
 TJ. S. 633, 26 Sup. Ct. 554, 50 L. Ed. 896, 5 
 Ann. Cas. 909; and one regulating the sale 
 of mixed paints and requiring a label show- 
 ing the ingredients is not an unconstitution- 
 al discrimination against the manufacture 
 and sale of paste paint, which is a substan- 
 tial part of the paint business ; Heath & Mil- 
 ligen Mfg. Co. v. Worst, 207 U. S. 338, 28 
 Sup. Ct. 114, 52 L. Ed. 236; nor a statute 
 forbidding the employment of workingmen 
 for more than eight hours a day in mines 
 and in the smelting reduction or refining 
 of ores and metals; Holden v. Hardy, 169 
 U. S. 366, 18 Sup. Ct. 383, 42 L. Ed. 780 (and 
 see comments thereon in Johnson, Lytle & 
 Co. v. Mills, 68 S. C. 339, 47 S. E. 695, 1 Ann. 
 Cas. 409) ; a statute requiring, for the safety 
 of persons employed therein, the owner or 
 agent of every coal mine or colliery to make 
 an accurate map of the workings; Daniels 
 v. Hilgard, 77 111. 640; and another prohib- 
 iting the employment of persons under eight- 
 een and of women from laboring more than 
 sixty hours a week; Com. v. Mfg. Co., 120 
 Mass. 383; a statute making eight hours a
 
 EQUAL PROTECTION OF THE LAWS 1053 EQUAL PROTECTION OP THE LAWS 
 
 day's work for all laborers except farm and 
 domestic; People v. Metz, 193 N. Y. 148, 8.", 
 N. E. 1070, 24 L. R. A. (N. S.) 201; one au- 
 thorizing a state commission to fix the maxi- 
 mum price to be charged for service by gas 
 and electric light companies, and an order 
 of the commission fixing the maximum price 
 of gas or electricity for three years was held 
 to be reasonable and valid, but the further 
 provision that the rate so fixed should con- 
 tinue indefinitely thereafter until fixed anew 
 on complaint made was inequitable and vio- 
 lated the guaranty of equal protection of the 
 laws, inasmuch as the statute did not con- 
 fer equal rights on both parties, authorizing 
 only certain municipal officers or a designat- 
 ed number of consumers to make complaint, 
 and giving no opportunity to the company 
 at the end of three years, or at any time 
 thereafter, to apply for a new adjustment of 
 rates; Village of Saratoga Springs v. Power 
 Co., 191 N. Y. 123, 83 N. E. 693, 18 L. R. A. 
 (X. S.) 713. An act requiring the substitu- 
 tion of water-closets for school sinks in tene- 
 ment houses ; Tenement House Dep't of New 
 York v. Moeschen, 179 N. Y. 325, 72 N. E. 
 231, 70 L. R. A. 704, 103 Am. St. Rep. 910, 
 1 Ann. Cas. 439; one providing that having 
 in possession more than a quart of liquor, 
 without license to sell, shall be prima facie 
 evidence of intent to make an illegal sale 
 thereof; State v. Barrett, 138 N. C. 630, 50 
 S. E. 506, 1 L. R. A. (N. S.) 626, and note; 
 an act regulating the keeping of employment 
 agencies in cities of first and second class; 
 People v. Warden of City Prison, 183 N. Y. 
 223, 76 N. E. 11, 2 L. R. A. (N. S.) 859, 5 
 Ann. Cas. 325 ; an act imposing heavier pun- 
 ishment on criminals for a second offence; 
 McDonald v. Com., 173 Mass. 322, 53 N. E. 
 874, 73 Am. St. Rep. 293; Moore v. Missouri, 
 159 U. S. 673, 16 Sup. Ct. 179, 40 L. Ed. 301 ; 
 Ughbanks v. Armstrong, 208 U. S. 481, 28 
 Sup. Ct 372, 52 L. Ed. 582; one imposing a 
 license tax on all laundries not run by steam ; 
 Quong Wing v. Kirkendall, 223 U. S. 59, 32 
 Sup. Ct. 102, 56 L. Ed. 350; an act requiring 
 certain public service corporations to pay 
 employees each week in lawful money; 
 Lawrence v. R. Co., 80 Vt 370, 67 Atl. 1091, 
 15 L. R. A. (N. S.) 350, 13 Ann. Cas. 475; 
 an act imposing on railroad companies the 
 weekly payment of wages; Skinner v. Min. 
 Co.. 96 Fed. 735 (but see infra) ; were all 
 held valid. 
 
 A statute was held valid requiring an ex- 
 amination of graduates of foreign medical 
 colleges as a prerequisite to obtaining a li- 
 cense to practice medicine, the same not be- 
 ing required of graduates of colleges in the 
 state; State v. Currens, 111 Wis. 431, 87 N. 
 W. 561, 56 L. R. A. 252; and so were stat- 
 utes recognizing the diploma of some named 
 medical schools as sufficient for permission to 
 practice medicine; Shaw, C. J., in Hewitt v. 
 Charier, 16 Pick. (Mass.) 353; Wright v. 
 
 Lanckton, 19 Pick. (Mass.) 2 r v. 
 
 Simpson, 59 Me. 183 : Bi - Ala. 
 
 122, 6 South. 902; and statub 
 sufficient the approval of a si l as- 
 
 sociation for practicing dentistry; Wilkins 
 v. state, 113 Ind. 514, 16 N. E. 192; or the 
 fact of practicing in at the dal 
 
 the law as a sufficieJ 
 from examination to practice medi 
 State v. Creditor, 44 Kan. 565, 24 
 21 Am. St. Rep. 306; and one which di 
 guished between graduates of a univi 
 or college authorized to grant diplomas in 
 dental surgery and those of a r< 
 lege of dentistry; State v. Knowles. 90 Md. 
 64G, 45 Atl. 877, 49 L. R. A. 695. 
 
 The legal duty of persons, firms or corpo- 
 rations operating railroads may be of a pe- 
 culiar nature, and essentially different from 
 the duties of other persons, firms or corpora- 
 tions, or even different from other con 
 carriers, such, for example, as the fencing 
 of tracks, the operation of trains, construc- 
 tion of tracks, maintenance or operation of 
 terminals, depots, or crossings, protection of 
 employees, and the like. As to such matters 
 peculiar to railroads, they may be separately 
 classified for the purposes of legislative reg- 
 ulation ; Minneapolis & St. L. R. Co. v. Beck- 
 with, 129 U. S. 26, 9 Sup. Ct. 207, 32 L. Ed. 
 585; Missouri Pac. R. Co. v. Mackey. 127 U. 
 S. 205, 8 Sup. Ct. 1161, 32 L. Ed. 107; Mi 
 souri, K. & T. R. Co. v. May, 194 U. S. 267, 
 24 Sup. Ct. 638, 48 L. Ed. 971 ; Atchison, T. 
 & S. F. R. Co. v. Matthews, 174 U. S. 90. 
 19 Sup. Ct 609, 43 L. Ed. 000 ; Tullis v. R. 
 Co.. 175 U. S. 348, 20 Sup. Ct. 136, -11 L. Ed. 
 192; Lake Shore & M. S. R. Co. v. Ohio, 173 
 U. S. 285, 19 Sup. Ct. 405, 43 L. Ed 702; 
 Pittsburgh, C, C. & St L. R. Co. v. Light- 
 heiser, 168 Ind. 438, 78 N. E. 1033. and other 
 cases supra. That the peculiar rights, du- 
 ties and responsibilities of common carriers 
 justifies a classification including only com- 
 mon carriers is held in Seaboard Air Line 
 Ry. v. Seegers, 207 U. S. 73. 28 Sup. Ct 
 28, 52 L. Ed. 108; but where the particular 
 subject of legislative regulation discrimi- 
 nates against one class of common carri- 
 ers (in this case railroad companies were 
 required to pay for the loss of or damage 
 to any shipment the sum of 25 per cent 
 per annum on the principal sum of the 
 claim) it was held unreasonable, as Impos- 
 ing upon one class of carriers a burden to 
 which others are not subjected; Seaboard 
 A. L. R. Co. v. Simon. 56 I'l.i. ".4,".. 47 - 
 1001, 20 L. R. A. (N. S.t 126, It". Attn. Cas. 
 1234. Where, however a statute imposed i 
 penalty on railroad companies for delay in 
 the delivery of freight, it was held not an 
 unwarranted discrimination against such 
 carriers as singling them out from all other 
 carriers engaged in the same business as 
 carriage by water is subject to many contin- 
 gencies which do not affect carriage by rail-
 
 EQUAL PROTECTION OF THE LAWS 1054 EQUAL PROTECTION OF THE LAWS 
 
 roads, and it would not be reasonable to sub- 
 ject botb alike to tbe same regulations as to 
 time ; McCutchen v. R. Co., 81 S. C. 71, 61 S. 
 E. 1108. 
 
 Statutes beld void as against both guar- 
 anties of the 14th Amendment are those im- 
 posing a high privilege tax on lenders of 
 money upon furniture etc. ; Rodge v. Kelly, 
 SS Miss. 209, 40 South. 552, 11 L. R. A. (N. 
 S.) 635, 117 Am. St Rep. 733; Ex parte 
 Sohncke, 148 Cal. 262, S2 Pac. 956, 2 L. R. A. 
 (N. S.) 813, 113 Am. St. Rep. 236, 7 Ann. 
 Cas. 475; (aliter as to a statute limiting the 
 amount of interest; State v. Cary, 126 Wis. 
 135, 105 N. W. 792, 11 L. R. A. [N. S.] 174; 
 or requiring certain specifications in the in- 
 strument securing the loan ; In re Home Dis- 
 count Co., 147 Fed. 53S; or requiring a li- 
 cense to do the business; City Council of 
 Augusta v. Clark & Co., 124 Ga. 254, 52 S. 
 E. SSI; Cowart v. City Council of Green- 
 ville, 67 S. C. 35, 45 S. E. 122; State v. 
 Wickenhoefer, 6 Pennewill [Del.] 120, 64 Atl. 
 273). 
 
 Among the acts held void as against the 
 equality clause are those forbidding store 
 orders in payment of wages; State v. Good- 
 will, 33 W. Va. 179, 10 S. E. 285, 6 L. R. A. 
 621, 25 Am. St. Rep. S63; State v. Coal & 
 Coke Co., 33 W. Va. 1SS, 10 S. E. 288, 6 L. R. 
 A. 359, 25 Am. St. Rep. S91 ; requiring week- 
 ly payment of wages by certain corporations ; 
 Brace ville Coal Co. v. People, 147 111. 66, 35 
 N. E. 62, 22 L. R. A. 340, 37 Am. St. Rep. 206 
 (contra, Skinner v. Mining Co., 96 Fed. 735); 
 imposing on private corporations a liability 
 for injuries to employees as being an abroga- 
 tion of the fellow servant rule which does not 
 exist in case of individuals ; Bedford Quarries 
 Co. v. Bough, 168 Ind. 671, 80 N. E. 529, 14 L. 
 R. A. (N. S.) 418 ; an ordinance prohibiting the 
 use of property for business on certain 
 streets; City of St. Louis v. Dorr, 145 Mo. 
 466, 41 S. W. 1094, 46 S. W. 976, 42 L. R. A. 
 686, 68 Am. St. Rep. 575 ; an act forbidding 
 combinations in restraint of trade, except 
 agricultural products and live stock in the 
 hands of the producer ; In re Grice, 79 Fed. 
 627; an ordinance allowing four livery sta- 
 bles in the business centre of the city while 
 the fifth and all others must be relegated and 
 confined to a remote district ; Town of Crow- 
 ley v. West, 52 La. Ann. 526, 27 South. 53, 47 
 L. R. A. 652, 78 Am. St. Rep. 355; a Mis- 
 souri statute prescribing a different registra- 
 tion law for St. Louis from tbat of other 
 cities in the state; Mason v. Missouri, 179 
 U. S. 328, 21 Sup. Ct. 125, 45 L. Ed. 214; a 
 classification for taxation distinguishing be- 
 tween retail and wholesale dealers; Cook v. 
 Marshall County, 196 U. S. 261, 25 Sup. Ct. 
 233, 49 L. Ed. 471; or between different oc- 
 cupations; Kehrer v. Stewart, 197 U. S. 60, 
 25 Sup. Ct. 403, 49 L. Ed. 663; an act per- 
 mitting water from coal mines and tunnels 
 and city sewage to flow into streams and pro- 
 hibiting individuals and corporations to do 
 
 the same; Com. v. Emmers, 221 Pa. 29S, 70 
 Atl. 702 ; an act setting apart mineral springs 
 bored in the rock as a class by themselves ; 
 Hathorn v. Gas Co., 128 App. Div. 33, 112 N. 
 Y. Supp. 374; forbidding barbers, and bar- 
 bers only, from keeping open their shops or 
 working their trade on Sundays ; Eden v. 
 People, 161 111. 296, 43 N. E. 110S, 32 L. R. 
 A. 659, 52 Am. St. Rep. 365 ; City of Tacoma 
 v. Krech, 15 Wash. 296, 46 Pac. 255, 34 L. R. 
 A. 68 {contra, McClelland v. City of Denver, 
 36 Colo. 486, 86 Pac. 126, 10 Ann. Cas. 1014 ; 
 Ex parte Northrup, 41 Or. 489, 69 Pac. 445); 
 providing that no costs should be recovered 
 against the city in an action commenced to 
 set aside any assessment or tax deed, or to 
 prevent the collection of taxes in said city ; 
 Durkee v. City of Janesville, 28 Wis. 464, 9 
 Am. Rep. 500; authorizing suits for injunc- 
 tion to be maintained in favor of certain par- 
 ties under circumstances differing from those 
 which obtained in respect to all other suits of 
 a similar nature; City of Janesville v. Car- 
 penter, 77 Wis. 2S8, 46 N. W. 12S, 8 L. R. A. 
 SOS, 20 Am. St Rep. 123; prohibiting per- 
 sons engaged in mining and manufacturing 
 from issuing for the payment of labor any 
 order or paper, except such as was specified 
 in the act ; State v. Goodwill, 33 W. Va. 179, 
 10 S. E. 2S5, 6 L. R. A. 621, 25 Am. St. Rep. 
 863 ; limiting recovery in suits brought for 
 libel in certain cases to actual damages as 
 defined in the act ; Park v. Free Press Co., 72 
 Mich. 560, 40 N. W. 731, 1 L. R. A. 599, 16 
 Am. St. Rep. 544; providing that no dam- 
 ages for injury to persons or property caus- 
 ed by a defect in the highway could be re- 
 covered of any city or town by any person, 
 who, at the time the damage was done, was 
 a resident of any country where damage done 
 under similar circumstances was not, by the 
 laws of that country recoverable; Pearson v. 
 City of Portland, 69 Me. 278, 31 Am. Rep. 
 276. 
 
 In Soon Hing v. Crowley, 113 U. S. 703, 5 
 Sup. Ct. 730, 28 L. Ed. 1145, the court said: 
 "The specific regulations for one kind of 
 business which may be necessary for the pro- 
 tection of the public can never be a just 
 ground of complaint because like restrictions 
 are not imposed upon a business of a differ- 
 ent kind. The discriminations which are 
 open to objection are those where persons 
 engaged in the same business are subjected 
 to different restrictions or are held entitled 
 to different privileges under the same condi- 
 tions." 
 
 Whether a classification under a statute is 
 a denial of equal protection of the laws "is 
 a legislative question, subject to judicial re- 
 vision only so far as to see that it is found- 
 ed on real distinctions in the subjects classi- 
 fied, and not on artificial or irrelevant ones 
 used for the purpose of evading the consti- 
 tutional prohibition. If the distinctions are 
 genuine the courts cannot declare the dis- 
 tinctions void, though they may not consider
 
 EQUAL PROTECTION OF THE LAWS 1055 
 
 EQUALITY 
 
 it on a sound basis. The test is not wisdom, 
 but good faith in the classification." Sea- 
 Lolt v. Com'rs of Northumberland County, 
 187 Pa. 318, 41 Atl. 22 ; Com. v. Randall, 225 
 Pa. 197, 73 Atl. 1109. 
 
 The effect of the prohibition is that a state 
 is hereby prevented from depriving particu- 
 lar persons or classes of persons of equal and 
 impartial justice under the law; Caldwell v. 
 Texas, 137 U. S. GUI', 11 Sup. Ct. 224, 34 L. 
 Ed. 81G ; as was said by the court in other 
 cases, "no person or class shall be denied the 
 same protection of the laws which is enjoy- 
 ed by other persons or other classes in the 
 same place and in like circumstances," quot- 
 ed from Missouri v. Lewis, 101 U. S. 22, 31, 
 25 L. Ed. 989, in Connolly v. Sewer Pipe Co., 
 184 U. S. 510, 559, 22 Sup. Ct. 431, 46 L. Ed. 
 679, where the Illinois Anti-Trust Act of 1893 
 was held unconstitutional. 
 
 Congress may not by penal statutes enforce 
 the guaranty of equal protection of the laws, 
 as it is directed against legislation by the 
 states ; U. S. v. Harris, 106 U. S. 629, 1 Sup. 
 Ct. G01, 27 L. Ed. 290. 
 
 The classification of crimes should be nat- 
 ural and not arbitrary and should be made 
 with reference to the heinousness of the 
 crime and not to matters disconnected there- 
 with; In re Mallon, 16 Idaho 737, 102 Pac. 
 37-1, 22 L. R. A. (N. S.) 1123. 
 
 EQUALITY. Likeness in possessing the 
 same rights and being liable to the same du- 
 ties. See 1 Toullier, nn. 170, 193. 
 
 The word equal implies, not identity, but 
 duality ; the use of one thing as the measure 
 of another. Kentucky & I. Bridge Co. v. R. 
 Co., 37 Fed. 624, 2 L. R. A. 289; Little Rock 
 & M. R. Co. v. R. Co., 63 Fed. 775, 11 C. C. 
 A. 417, 26 L. R. A. 192. 
 
 Judges in court, while exercising their 
 functions, are all upon an equality, it being 
 a rule that inter pans non est potcstas: a 
 judge cannot, therefore, punish another 
 judge of the same court for using any ex- 
 pression in court, although the words used 
 might have been a contempt in any other 
 person. Bacon, Abr., Of the Court of Ses- 
 sions, Of Justices of the Peace. 
 
 In contracts, the law presumes that the 
 parties act upon a perfect equality: when, 
 therefore, one party uses any fraud or deceit 
 to destroy this equality, the party grieved 
 may avoid the contract In case of a grant 
 to two or more persons jointly, without des- 
 ignating what each takes, they are presumed 
 to take in equal proportions ; Treadwell v. 
 Bulkley, 4 Day (Conn.) 395, 4 Am. Dec. 225 ; 
 Henderson v. Womack, 41 N. C. 437 ; Appeal 
 of Young, S3 Pa. 59. 
 
 It is a maxim that when the equity of the 
 parties is equal, the law must prevail ; John- 
 son v. Brown, 3 Call (Va.) 259 ; and that as 
 between different creditors, equality is equi- 
 ty; De La Vergne v. Evertson. 1 1'aige, Ch. 
 (X. Y.) 1S1, 19 Am. Dec. 411. See Karnes, Eq. 
 75; Equity. 
 
 Equalization In revenue statutes means to 
 bring the assessment of different parts of a 
 taxing district to the same relative standard ; 
 Huidekoper v. Hadley, 177 1 ed. l, 100 C. C. 
 A. 395, 40 L. R. A. (X. S.) 505. 
 
 See Tax. 
 
 EQUINOX. The name given to two pe- 
 riods of the year when the days and nights 
 are equal ; that is, when 
 between the rising and setting of the sun is 
 one-half of a natural day. The tenia! equi- 
 nox occurs about March 21, the autumnal 
 about September 23. 
 
 EQUIPMENT. Furnishings for the requir- 
 ed purposes. In a legacy to be applied to- 
 ward the rebuilding and equipment of a hos- 
 pital it was held equipment meant everything 
 required to convert an empty building into a 
 hospital; 75 L. J. Ch. 163. 
 
 EQUITABLE ASSETS. Such assets as are 
 Chargeable with the payment of debts or leg- 
 al u.s in equity, and which do not fall under 
 the description of legal assets. 
 
 Those portions of the property which by 
 the ordinary rules of law are exempt from 
 debts, but which the testator has voluntarily 
 charged as assets, or which, being non-exist- 
 ent at law, have been created in equity. Ad. 
 Eq. 251. 
 
 They are so called because they can be 
 reached only by the aid and instrumentality 
 of a court of equity, and because their dis- 
 tribution is governed by a different rule from 
 that which governs the distribution of legal 
 assets. 2 Fonb. Eq. b. 4, pt 2, <•. 2. 5 1, and 
 notes; 2 Vern. 763; Willes 523; 3 Woodd. 
 Lect. 4S6 ; Story, Eq. Jur. § 552. 
 
 The doctrine of equitable assets has been 
 much restricted in the United States gen- 
 erally, and has lost its importance in Eng- 
 land since the act of 1S70, providing that sim- 
 ple contract and specialty creditors are, in 
 future, payable pari passu out of both legal 
 and equitable assets; Bisph. Eq. ^ 531 : Ben- 
 son v. Le Roy, 4 Johns. Ch. (X. Y.) 651 : back- 
 house v. Patton, 5 Pet. (U. S.) 160. 8 L 
 S2; Black v. Scott, 2 Brock. 
 Xo. 1,464; Hopkins v. Morgan's Kx'r. ;: Dana 
 (Ky.) 18; Speed's Bx'r v. Nelson's Kx'r, 8 B. 
 Monr. (Ky.) 499; Henderson v. Burton's Kx'r, 
 38 N. C. 259. 
 
 EQUITABLE ASSIGNMENT. An &£ 
 ment of a chose in action, a thing not fa 
 as a mortgage of personal property t" be ac- 
 quired in the future, and a mere contingency 
 which, though not good at law. equity will 
 recognize. Bisph. Eq. § 164; 10 11. L. ("as. 
 209; Butt v. Ellett, 19 Wall. (U. S.) 511, S2 
 L. Ed. 1S3; Shephard v. Clark, 38 111. App. 
 66; Bacon v. Bonhani, :::; X. .1. Eq. 614 j 
 Lewisburg Lumber & Mfg. Co. v. Mai 
 Pa. 96. In making such an assignment, no 
 particular form of words is necessary ; Buck 
 v. Swazey, 35 Me. 41, 56 Am. Dec 681; Kes- 
 sel v. Ali'etis, 56 Barb. (N. Y.i 362; Noyes v. 
 Brown, 33 Yt. 431; Cage v. Dow, 59 X. H.
 
 EQUITABLE ASSIGNMENT 
 
 1056 
 
 EQUITABLE ESTATE 
 
 383 ; Bower v. Stone Co., 30 N. J. Eq. 171 ; 
 but the property must be specifically pointed 
 out; Morrill v. Noyes, 56 Me. 465, 96 Am. 
 Dec. 486 ; Benj. Sales 62 ; and there must be 
 an appropriation or separation, and the mere 
 intent to appropriate is not sufficient; Put- 
 nam Saw Bank v. Beal, 54 Ted. 577 ; Shan- 
 non v. Mayor, etc., of Hoboken, 37 N. J. Eq. 
 123. A valid assignment may be made of a 
 portion of the contract price of a building 
 contracted to be erected by the assignor, but 
 not yet erected, and such assignment need 
 not be written nor accompanied by any trans- 
 fer of the contract itself; Lanigan's Adm'r 
 v. Bradley & Currier Co., 50 N. J. Eq. 201, 
 24 Atl. 505. The assignee of a chose in ac- 
 tion takes it subject to existing equities in 
 favor of third persons, as well as to those 
 between the original parties; Schafer v. Reil- 
 ly, 50 N. Y. 67; 3 Lead. Cas. Eq. 372, n. 
 Equity will not recognize the assignment of 
 certain kinds of property as against the pol- 
 icy of the law, such as, mere litigious rights, 
 pensions, salaries of judges, commissions of 
 officers in the army. or navy, claims against 
 the United States, and the like; 1 E. L. & 
 Eq. 153 ; Appeal of Elwyn, 67 Pa. 369 ; L. R. 
 7 Ch. 109; 8 id. 76; Wanless v. U. S., 6 Ct. 
 CI. 123 ; Bates v. U. S., 4 Ct. CI. 569 ; St. Paul 
 & D. R. Co. v. U. S., 112 U. S. 733, 5 Sup. Ct. 
 366, 28 L. Ed. 861. The assignment of secur- 
 ed notes carries with it an equitable assign- 
 ment of the security; Himrod v. Bolton, 44 
 111. App. 516. See Assignment; Expectancy. 
 
 EQUITABLE CONVERSION. See Con- 
 version. 
 
 EQUITABLE DEFENCE. A defence to an 
 action on grounds which, prior to the passing 
 of the Common Law Procedure Act (17 and 
 18 Vict. c. 125), would have been cognizable 
 only in a court of equity. Moz. & W. The 
 codes of procedure and the practice in some 
 of the states likewise permit both a legal and 
 equitable defence to the same action. 
 
 See Election 
 
 EQUITABLE ELECTION. 
 
 of Rights. 
 
 EQUITABLE ESTATE. A right or inter- 
 est in land, which, not having the properties 
 of a legal estate, but being merely a right of 
 which courts of equity will take notice, re- 
 quires the aid of such court to make it avail- 
 able. 
 
 These estates consist of uses, trusts, and 
 powers. They possess in some respects the 
 qualities of legal estates in modern law ; Da- 
 vis v. Mason, 1 Pet. (U. S.) 508, 7 L Ed. 239 ; 
 Houghton v. Hapgood, 13 Pick. (Mass.) 154; 
 Ege v. Medlar, 82 Pa. 86 ; Dunscomb v. Duns- 
 comb, 1 Johns. Ch. (N. T.) 508, 7 Am. Dec. 
 504; 2 Vern. 536; 1 Bro. C. C. 499; Wins. 
 R. P. 134 ; 1 Spence, Eq. Jur. 501 ; 1 Washb. 
 R. P. 130, 161. 
 
 A contract for the sale of land gives the 
 buyer an equitable estate ; an interest which 
 he can resell, or dispose of by will, etc. ; his 
 
 title is good against every one except a "pur- 
 chaser for value without notice"; Pollock, 
 First Book of Jurispr. 212. 
 
 EQUITABLE ESTOPPEL. See Estoppel. 
 
 EQUITABLE MORTGAGE. A lien upon 
 real estate of such a character that it is rec- 
 ognized in equity as a security for the, pay- 
 ment of money and is treated as a mortgage. 
 A mortgage of a merely equitable estate or 
 interest is also so called. 
 
 Such a mortgage may exist by a deposit 
 with the lender of money of the title-deeds 
 to an estate ; Story, Eq. Jur. § 1020 ; Bisph. 
 Eq. 161 ; 1 Bro. Ch. C. 269 ; 17 Ves. 230 ; Man- 
 deville v. Welch, 5 Wheat. (U. S.) 277, 5 L. 
 Ed. 87 ; 20 Beav. 607. They must have been 
 deposited as a present, bona fide security ; 1 
 Washb. R. P. 503 ; and the mortgagee must 
 show notice to affect a subsequent mortgagee 
 of record; Hall v. McDuff, 24 Me. 311; 3 
 Hare 416 ; Story, Eq. Jur. § 1020. Such mort- 
 gages are recognized in some states ; Hall v. 
 McDuff, 24 Me. 311; Williams v. Stratton, 
 10 Smedes & M. (Miss.) 418; Hackett v* 
 Reynolds, 4 R. I. 512 ; but under the usual 
 system of the registration of deeds are of in- 
 frequent occurrence. 
 
 The doctrine is repudiated in many juris- 
 dictions ; Lehman, Durr & Co. v. Collins, 69 
 Ala. 127; Pierce v. Parrish, 111 Ga. 725, 37 
 S. E. 79; Gothard v. Flynn, 25 Miss. 58; 
 Bloomfield State Bank v. Miller, 55 Neb. 243, 
 75 N. W. 569, 44 L. R. A. 387, 70 Am. St. Rep. 
 3S1; Harper v. Spainhour, 64 N. C. 629; 
 Hackett v. Watts, 138 Mo. 502, 40 S. W. 113 ; 
 on the ground that it would tend to embar- 
 rass lands with secret trusts ; Lehman, Durr 
 & Co. v. Collins, 69 Ala. 127; as coming in 
 conflict with the statute of frauds, which 
 provides that all agreements for the sale of 
 land, etc., should be in writing, etc.; Wil- 
 liams v. Stratton, 10 Smedes & M. (Miss.) 
 41S; and as being contrary to acts for the 
 recording of mortgages, . and for recording 
 liens for public information; Shitz v. Dief- 
 fenbach, 3 Pa. 233. In Georgia the code de- 
 clares that the delivery of title deeds creates 
 no pledge; Davis v. Davis, 88 Ga. 191, 14 
 S. E. 194. When, however, a written agree- 
 ment accompanies the deposit of the title 
 deeds, such agreement may become the basis 
 for an equitable lien ; Woodruff v. Adair, 131 
 Ala. 530, 32 South. 515. 
 
 No particular formality is necessary in or- 
 der to make a valid mortgage between the 
 parties thereto ; Frick v. Fritz, 115 la. 43S, SS 
 N. W. 961, 91 Am. St. Rep. 165. If the trans- 
 action resolves itself into a security, whatever 
 may be its form, in equity it is a mortgage; 
 Flagg v. Mann, 2 Sumn. 533, Fed. Cas. No. 
 4,847. A lien created by contract and not 
 sufficient as a legal mortgage, will generally 
 be regarded as partaking of the nature of an 
 equitable mortgage; Kyle v. Belleuger, 79 
 Ala. 516. Though a lien may not be express- 
 ed in terms, equity will imply a security from
 
 EQUITABLE MORTGAGE 
 
 1057 
 
 EQUITY 
 
 the nature of the transaction, and give effect 
 to it, as such, in furtherance of the agree- 
 ment of the parties, if there appears an in- 
 tention to create a security; Wood v. Holly 
 Mfg. Co., 100 Ala. 326, 13 South. 948, 46 Am. 
 St Rep. 56. The form of the writing is not 
 important provided it sufficiently appears 
 that it was thereby intended to create a se- 
 curity; Howard v. Iron & Land Co., G2 
 Minn. 29S, 64 X. W. 896; and to the same ef- 
 fect, Higgins v. Manson, 126 Cal. 407, 58 Pac. 
 907, 77 Am. St. Hep. 192; Martin v. P.owen, 
 51 N. .7. Eq. 452, 2f> Atl. 823; Dulaney v. 
 Willis, 95 Va. 006, 29 S. E. 324, G4 Am. St 
 Rep. 815; Hackett v. Watts, 138 Mo. 502, 40 
 S. W. 113. 
 
 To place in the hands of another a deed to 
 real estate, together with a written memo- 
 randum stating that the property is pledged 
 to secure the other against loss from becom- 
 ing a surety for the owner, will create an 
 equitable lien enforceable against the own- 
 er's assignee for creditors ; In re Snyder, 138 
 la. 553, 114 N. W. 615, 19 L. R. A. (N. S.) 
 206. 
 
 Such a mortgage has been said to exist in 
 favor of the vendor of real estate as security 
 for purchase-money due from the purchaser ; 
 in which ease a lien is recognized iu some 
 jurisdictions ; 15 Ves. 339; 1 Brb. Ch. C. 420, 
 424, n. It is occasionally spoken of as an 
 equitable mortgage; Moreton v. Harrison, 1 
 Bland (Md.) 491, though it is doubtful if it is 
 to be so considered. It is properly termed 
 vendor's lien, which see. See also Lien. 
 
 EQUITABLE WASTE. See Waste. 
 
 EQUITATURA. In Old English Law. 
 
 Needful equipments for riding or travelling. 
 
 EQUITY. A branch of remedial justice by 
 and through which relief is afforded to suit- 
 ors in the courts of equity. 
 
 In the broad sense in which this term is some- 
 times used it signifies natural justice. 
 
 In a more limited application, it denotes equal 
 justice between contending parties. This is its 
 moral signification, in reference to the rights of 
 parties having conflicting claims ; but applied to 
 courts and their jurisdiction and proceedings, it has 
 a more restrained and limited signification. 
 
 One division of courts is into courts of law and 
 courts of equity. And equity, in this relation and 
 application, is a branch of remedial justice by and 
 through which relief is afforded to suitors in the 
 courts of equity. 
 
 The difference between the remedial justice of the 
 courts of common law and that of the courts of 
 equity is marked and material. That administered 
 by the courts of law is limited by the principles of 
 the common law (which are to a great extent posi- 
 tive and inflexible), and especially by the nature 
 and character of the process and pleadings, and of 
 the judgments which those courts can render ; be- 
 cause the pleadings cannot fully present all the 
 matters in controversy, nor can the judgments be 
 adapted to the special exigencies which may exist 
 in particular cases. It is not uncommon, also, for 
 cases to fail in those courts, from the fact that too 
 few or too many persons have been joined as par- 
 ties, or because the pleadings have not been framed 
 with sufficient technical precision. 
 
 The remedial process of the courts of equity, on 
 the other hand, admits, and, generally, requires, 
 
 Bouv.— 67 
 
 that all persons having an interest shall be made 
 parties, and makes a large allowance for amend- 
 ments by summoning and discharging parties after 
 the commencement of the suit. The pleadings are 
 usually framed so as to present to the considera- 
 tion of the court the whole case, with its possible 
 legal rights, and all its equities,— that Is, all the 
 grounds upon which the suitor is or is not entitled 
 to relief upon the principles of equity. And its final 
 remedial process may be so varied as to n. 
 requirements of these equities, in cases where the 
 tion of the courts of equity "com- 
 
 manding what is right, and prohibiting what is 
 wrong." In other words. Its final process is varied 
 so as to enable the courts to do that < quitable jus- 
 tice between the parties which the case demands, 
 !>y commanding what is to be done, or pro- 
 hibiting what is threatened to be done. 
 
 The principles upon which, and the md! 
 forms by and through which, justice is administered 
 in the United States, are derived to a great ex- 
 tent from those which were in existence in England 
 at the time of the settlement of this country ; and 
 it is therefore important to a correct understanding 
 of the nature and character of our own jurispru- 
 dence, not only to trace it back to its introduction 
 here .on the early settlement of the colonies, but 
 also to trace the English jurisprudence from, its 
 earliest inception as the administration of law, 
 founded on principles, down to that period. It is in 
 this way that we are enabled to explain many 
 things in our own practice which would otherwise 
 be entirely obscure. This is particularly true of the 
 ies which regulate the jurisdiction and prac- 
 tice of the courts of equity, and of the principles of 
 equity as they are now applied and administered in 
 the courts of law which at the present day have 
 equitable jurisdiction conferred upon them by stat- 
 utes passed for that, purpose. And for the purpose 
 of a competent understanding of the course of de- 
 cisions in the courts of equity in England, it is 
 necessary to refer to the origin of the equitable 
 jurisdiction there, and to trace its history, inquiring 
 upon what principles it was originally founded, and 
 how it has been enlarged and sustained. 
 
 The study of equity jurisprudence, therefore, com- 
 prises an inquiry into the origin and history of the 
 courts of equity ; the distinctive principles upon 
 which jurisdiction in equity is founded ; the nature, 
 character, and extent of the jurisdiction itself ; its 
 peculiar remedies; the rules and maxims which 
 regulate its administration ; its remedial process 
 and proceedings and modes of defence ; and its 
 rules of evidence and practice. 
 
 "The meaning of the word 'equity,' as used in its 
 technical sense in English jurisprudence, comes 
 back to this: that it is simply a term descriptive of 
 a certain field of jurisdiction exercised in the Eng- 
 lish system, by certain courts, and of which the 
 extent and boundaries are not marked by lines 
 founded upon principle so much as by the features 
 of the original constitution of the English scheme 
 of remedial law, and the accidents of its develop- 
 ment." Bisph. Eq. § 11. 
 
 Origin and History. The courts of equi- 
 ty may be said to have their origin as far 
 back as the Aula or Curia Regis, the great 
 court in which the king administered justice 
 in person, assisted by his counsellors. Of 
 mi its vt (his court, iin' chancellor was 
 one of great trust and confidence, next to the 
 king himself; but his duties do not distinctly 
 appear at (he present day. Oil the dj 
 tion of that court, he exercised separate du- 
 ties. 
 
 On the introduction of seals, he had the 
 keeping of the king's .seal, which he a il'txed 
 to Charters and deeds; and he had some au- 
 thority in relation to the king's grants,— 
 perhaps annulling those which were alleged
 
 EQUITY 
 
 1058 
 
 EQUITY 
 
 to have been procured by misrepresentation 
 or to have been issued unadvisedly. 
 
 As writs came into use, it was made his 
 duty to frame and issue them from his court, 
 which, as early as the reign of Henry II., 
 was known as the chancery. And it is said 
 that he exercised at this period a sort of 
 equitable jurisdiction by which he mitigated 
 the rigor of the common law, — to what ex- 
 tent it is impossible to determine. He is 
 spoken of as one who "annuls unjust laws, 
 and executes the rightful commands of the 
 pious prince, and puts an end to what is in- 
 jurious to the people or to morals," — which 
 would form a very ample jurisdiction ; but it 
 seems probable that this was according to 
 the authority or direction of the king, given 
 from time to time in relation to particular 
 cases. He was a principal member of the 
 king's council, after the conquest, in which, 
 among other things, all applications for the 
 special exercise of the prerogative in regard 
 to matters of judicial cognizance were dis- 
 cussed and decided upon. In connection with 
 the council, he exercised a separate author- 
 ity in cases in which the council directed the 
 suitors to proceed in chancery. The court of 
 chancery is said to have sprung from this 
 council. But it may be said that it had its 
 origin in the prerogative of the king, by 
 which he undertook to administer justice, on 
 petitions to himself, without regard to the 
 jurisdiction of the ordinary courts, which he 
 did through orders to his chancellor. The 
 great council, or parliament, also sent mat- 
 ters relating to the king's grants, etc., to the 
 chancery; and it seems that the chancellor, 
 although an ecclesiastic, was the principal 
 actor as regards the judicial business which 
 the select or king's council, as well as the 
 great council, had to advise upon or trans- 
 act. In the reign of Edward I. the power 
 and authority of the chancellor were extend- 
 ed by the statute of Westminster 2d. 
 
 In the time of Edward III. proceedings in 
 chancery were commenced by petition or bill, 
 the adverse party was summoned, the par- 
 ties were examined, and chancery appears as 
 a distinct court for giving relief in cases 
 which required extraordinary remedies, the 
 king having, "by a writ, referred all such 
 matters as were of grace to be dispatched 
 by the chancellor or by the keeper of the 
 privy seal." . 
 
 It may be considered to have been fully 
 established as a separate and permanent ju- 
 risdiction, from the 17th of Richard II. 
 
 In the time of Edward IV. the chancery 
 had come to be regarded as one of the four 
 principal courts of the kingdom. From this 
 time its jurisdiction and the progress of its 
 jurisdiction become of more importance to us. 
 It is the tendency of any system of legal 
 principles, when reduced to a practical ap- 
 plication, to fail of effecting such justice be- 
 tween party and party as the special circum- 
 stances of a case may require, by reason of 
 
 the minuteness and inflexibility of its rules 
 and the inability of the judges to adapt its ' 
 remedies to the necessities of the controver- 
 sy under consideration. This was the case 
 with the Roman law ; and, to remedy this, 
 edicts were issued from time to time, which 
 enabled the consuls and praetors to correct 
 "the scrupulosity and mischievous subtlety 
 of the law ;" and from these edicts a code 
 of equitable jurisprudence was compiled. 
 
 So the principles and rules of the common 
 law, as they were reduced to practice, became 
 in their application the means of injustice 
 in cases where special equitable circumstanc- 
 es existed, of which the judge could not take 
 cognizance because of the precise nature of 
 its titles and rights, the inflexible character 
 of its principles, and the technicality of its 
 pleadings and practice. And in a manner 
 somewhat analogous to the Roman mode of 
 modification, in order to remedy such hard- 
 ships, the prerogative of the kijjg or the au- 
 thority of the great council was exercised in 
 ancient times to procure a more equitable 
 measure of justice in the particular case, 
 which was accomplished through the court of 
 chancery. 
 
 This was followed by the "invention" of 
 the writ of subpoena by means of which the 
 chancery assumed, upon a complaint made 
 directly to that court, to require the attend- 
 ance of the adverse party, to answer to such 
 matters as should be objected against him. 
 Notwithstanding the complaints of the com- 
 mons, from time to time, that the course of 
 proceeding in chancery "was not according 
 to the course of the common law, but the 
 practice of the holy church," the king sus- 
 tained the authority of the chancellor, the 
 right to issue the writ was recognized and 
 regulated by statute, and other statutes were 
 passed conferring jurisdiction where it had 
 not been taken before. In this way, without 
 any compilation of a code, a system of equi- 
 table jurisprudence Was established in the 
 court of chancery, enlarging from time to 
 time; the decisions of the court furnishing 
 an exposition of its principles and of their 
 application. It is said that the jurisdiction 
 was greatly enlarged under the administra- 
 tion of Cardinal Wolsey, in the time of Hen- 
 ry VIII. The courts of equity also began to 
 act in personam' and to enjoin plaintiffs in 
 common-law courts from prosecuting inequi- 
 table suits. A controversy took place be- 
 tween Lord Chancellor Ellesmere and Lord 
 Coke, Chief Justice of the King's Bench, in 
 the time of James I., respecting the right of 
 the chancellor to interfere with any of the 
 proceedings and judgments of the courts of 
 law. The king sustained the chancellor ; and 
 from that time the jurisdiction then claimed 
 has been maintained. See The Earl of Ox- 
 ford's Case, 1 Ch. Rep. 1, 2 Lead. Cas. Eq. 
 601 ; Bisph. Eq. § 407 ; 1 Poll. & Maitl. 172 ; 
 1 Hallam, Const. Hist.- 472; Canceixarius. 
 
 It is from the study of these decisions and
 
 EQUITY 
 
 1059 
 
 EQUITY 
 
 the commentaries upon them that we are 
 enabled to determine, with a greater or less 
 degree of certainty, the time when and the 
 grounds upon which jurisdiction was granted 
 or was taken in particular classes of cases, 
 and the principles upon which it was admin- 
 istered. And it is occasionally of importance 
 to attend to this; because we shall see that, 
 chancery having once obtained jurisdiction, 
 that jurisdiction continues until expressly 
 taken away, notwithstanding the intervention 
 of such changes in common-law practice and 
 rules as, if they had been made earlier, 
 would have rendered the exercise of juris- 
 diction in equity incompatible with the prin- 
 ciples upon which it is founded. 
 
 A brief sketch of some of the principal 
 points in the origin and history of the court 
 of chancery may serve to show that much of 
 its jurisdiction exists independently of any 
 statute, and is founded upon an assumption 
 of a power to do equity, having its first in- 
 ception in the prerogative of the king, and 
 his commands to do justice in individual cas- 
 es, extending itself through the action of the 
 chancellor, to the issue of a writ of summons 
 to appear in his court without any special 
 authority for that purpose, and, upon the 
 return of the subpoena, to the reception of a 
 complaint, to a requirement upon the party 
 summoned to make answer to that complaint, 
 and then to a hearing and decree, or judg- 
 ment, upon the merits of the matters in con- 
 troversy, according to the rules of equity and 
 good conscience. 
 
 It appears as a noticeable fact that the 
 jurisdiction of the chancery proceeded orig- 
 inally from and was sustained by successive 
 kings of England against the repeated remon- 
 strances of the commons, who were for ad- 
 hering to the common law; though not, per- 
 haps, approving of all its rigors, as equity 
 had been to some extent acknowledged as a 
 rule of decision in the common-law courts. 
 
 This opposition of the commons may have 
 been owing in part to the fact that the chan- 
 cellor was in those days usually an ec- 
 clesiastic, and to the existing antipathy 
 among the masses of the people to almost ev- 
 erything Roman. 
 
 The master of the rolls, who for a long 
 period was a judicial officer of the court of 
 chancery, second only to the chancellor, was 
 originally a clerk or keeper of the rolls or 
 records, but seems to have acquired his judi- 
 cial authority from being at times directed 
 by the king to take cognizance of and de- 
 termine matters submitted to him. 
 
 Distinctive Principles. It is quite ap- 
 parent that some principles other than those 
 of the common law must regulate the exer- 
 cise of such a jurisdiction. That law could 
 not mitigate its rigor upon its own principles. 
 And as, down to the time of Edward III., 
 and, with few exceptions, to the 21st of Hen- 
 ry VIII., the chancellors were ecclesiastics, 
 much more familiar with the principles of 
 
 the Roman law than with those of the com- 
 mon law, it was but a matter of course that 
 there should be a larger adoption of the 
 principles of that law; and the study of it is 
 of some importance in this connection. Still, 
 that law cannot be said to be of authority 
 even in equity procei 
 were jealous of its introduction. "In 
 reign of Richard II. the barons . that 
 
 they would never suffer the kingdom ■ 
 governed by the Roman law, and the j . 
 prohibited it from being any longer citi 
 the common-law tribunals." 
 
 This opposition of the barons and of the 
 common-law judges furnished very sufficient 
 reasons why the chancellors should not pro- 
 fess to adopt that law as the rule of decision. 
 In addition to this, it was not fitted, in many 
 3, to the state of things existing in 
 England; and so the chancellors were of ne- 
 cessity compelled to act upon equitable prin- 
 ciples as expounded by themselves. In later 
 times the common-law judges in that country 
 have resorted to the Roman law for princi- 
 ples of decision to a much greater extent 
 than they have given credit to it. 
 
 Since the time of Henry VIII. the chancery 
 bench has been occupied by some of the 
 ablest lawyers which England has proi 
 and they have given to the proceedings and 
 practice in equity definite rules and forms, 
 which leave little to the personal discretion 
 of the chancellor in determining what equity 
 and good conscience require. The discretion 
 of the chancellor is a judicial discretion, to 
 be exercised according to the principles and 
 practice of the court. See Discretion. 
 
 The avowed principle upon which the ju- 
 risdiction was at first exercised was the ad- 
 ministration of justice according to hi 
 equity, and conscience, — which last, it is -aid, 
 was unknown to the common law as a prin- 
 ciple of decision. 
 
 In the loth of Richard II. two petitions, 
 addressed to the king and the lords of par- 
 liament, were sent to the chancery to be 
 heard, with the direction, "Let there be done, 
 by the authority of parliament, that which 
 right, and reason and good faith and good 
 Conscience demand in the c; - 
 
 These may be said to be the general prin- 
 ciples upon which equity is administered at 
 the present day. 
 
 Although in its origin the result of efforts 
 to avoid hardships sometimes resulting from 
 the rigorous application of legal rules and 
 processes, it has in modern times dev< 
 into a settled system; McElroy v. Master 
 son. 156 Fed. 88, M 0. G a. 202; and as was 
 said in [1903] - Ch. 171. 195, it is not a court 
 of conscience, in the Icing 
 
 no question of legal liability, ripe for dis- 
 cussion, there was no occasion for judicial 
 action. 
 
 The distinctive principles of the courts of 
 equity are shown, also, by the classes of cas- 
 es in which they exercise jurisdiction and
 
 EQUITY 
 
 10G0 
 
 EQUITY 
 
 give relief, — allowing it to be sought and ad- 
 ministered through process and proceedings 
 of less formality and technicality than are 
 required in proceedings at law. This, how- 
 ever, has its limitations, some of its rules 
 "of pleading in defence being quite technical. 
 And it is another peculiar feature that the 
 relief is administered by a decree or process 
 adapted to the exigencies of the particular 
 case. 
 
 It was said by Jessel, M. R., in L. R. 13 
 Ch. D. 696, 710: "It must not be forgotten 
 that the rules of the court of equity are not, 
 like the rules of the common law, supposed to 
 have been established from time immemorial. 
 It is perfectly well known that they have 
 been established from time to time — altered, 
 improved, and refined from time to time. In 
 many cases we know the names of the chan- 
 cellors who invented them. No doubt they 
 were invented for the purpose of securing 
 the better administration of justice, but they 
 were invented. Take such things as these: 
 The separate use of a married woman, the 
 restraint on alienation, the modern rule 
 against perpetuities, and the rules of equi- 
 table waste. We can name the chancellors 
 'who first invented them, and state the date 
 when they were first introduced into equity 
 jurisprudence; and, therefore, in cases of 
 this kind, the older precedents in equity are 
 of very little value. The doctrines are pro- 
 gressive, refined and improved ; and if we 
 want to know what the rules of equity are, 
 we must look, of course, rather to the more 
 modern than the more ancient cases." 
 
 Jurisdiction. It is difficult to reduce a 
 jurisdiction so extensive and of such diverse 
 component parts to a rigid and precise clas- 
 sification. But an approach to it may be 
 made. The general nature of the jurisdic- 
 tion has already been indicated. It exists — 
 First, for the purpose of compelling a dis- 
 covery from the defendant, respecting the 
 truth of the matters alleged against him, by 
 an appeal to his conscience to speak the 
 truth. The discovery is enforced by requir- 
 ing an answer to the allegations in the plain- 
 tiff's complaint, in order that the plaintiff 
 may use the matters disclosed in the answer, 
 as admissions of the defendant, and, thus, evi- 
 dence is secured for the plaintiff, either in 
 connection with and in aid of other evidence 
 offered by the plaintiff, or to supply the want 
 of other evidence on his part; or it may be 
 to avoid the expense to which the plaintiff 
 must be put in procuring other evidence to 
 sustain his case. 
 
 When the plaintiff's complaint, otherwise 
 called a bill, prays for relief in the same suit, 
 the statements of the defendant in his an- 
 swer are considered by the court in forming 
 a judgment upon the whole case. A party, if 
 uncertain to what specific relief he is enti- 
 tled, may frame his bill with an alternative 
 prayer for relief ; Hardin v. Boyd, 113 U. S. 
 756,' 763, 5 Sup. Ct 771, 28 L. Ed. 1141 ; but 
 
 he may not recognize a transaction and pray 
 for the enforcement of his rights thereunder 
 and ask that it be set aside as a fraud, par- 
 ticularly without specifying in what particu- 
 lar ; Cella v. Brown, 144 Fed. 742, 75 C. C. 
 A. 608. 
 
 To a certain extent, the statements of 
 the defendant in answer to the bill are evi- 
 dence for himself also. 
 
 The discovery which may be required is 
 not only of facts within the knowledge of 
 the defendant, but may, also, be of deeds and 
 other writings in his possession. 
 
 The right to discovery is not, however, 
 an unlimited one : as, for instance, the de- 
 fendant is not bound to make a discovery 
 which would subject him to" punishment, 
 nor, ordinarily, to discover the title upon 
 which he relies* in his defence ; nor is the 
 plaintiff entitled to require the production 
 of all papers which he may desire to look 
 into. The Limits of the right deserve care- 
 ful consideration. The discovery, when had, 
 may be the foundation of equitable relief in 
 the same suit, in which case it may be con- 
 nected with all the classes of cases in which 
 relief is sought ; or it may be for the pur- 
 pose of being used in some other court, in 
 which case the jurisdiction is designated as 
 an assistant jurisdiction. Since the new 
 statutes on the admission of evidence of par- 
 ties, bills of discovery have practically fallen 
 into disuse. See Discovery. 
 
 Second, where the courts of law do not, 
 or did not, recognize any right, and there- 
 fore could give no remedy, but where the 
 courts of equity recognize equitable rights 
 and, of course, give equitable relief. This 
 has been denominated the exclusive juris- 
 diction. In this class are trusts, charities, 
 forfeited and imperfect mortgages, penalties 
 and forfeitures, imperfect consideration. 
 
 Uses and trusts have been supposed to 
 have had their origin in the restrictions laid 
 by parliament upon conveyances in mort- 
 main, — that is, to the church for charitable, 
 or rather for ecclesiastical, purposes. 
 
 It may well be that the doctrine of equita- 
 ble titles and estates, unknown to the com- 
 mon law but which could be enforced in 
 chancery, had its origin in conveyances to 
 individuals for the use of the church in or- 
 der to avoid the operation of these restric- 
 tions, — the conscience of the feofee being 
 bound to permit the church to have the use 
 according to the design and intent of the 
 feoffment. 
 
 But conveyances in trust for the use of 
 the church were not by any means the only 
 cases in which it was desirable to convey 
 the legal title to one for the use of another. 
 In many instances, such a conveyance offered 
 a convenient mode of making provision for 
 those who, from any circumstances, were 
 unable to manage property advantageously 
 for themselves, or to wmorn it was not de- 
 sirable to give the control of it; and the
 
 EQUITY 
 
 1061 
 
 EQUITY 
 
 r 
 
 
 propriety in all such cases of some protec- 
 tion to the beneficiary is quite apparent. 
 The court of chancery, by recognizing that 
 he bad an interest of an equitable character 
 which could be protected and enforced 
 against the holder of the legal title, exercised 
 a jurisdiction to give relief in cases which 
 the courts of common law could not reach, 
 tently with their principles and modes 
 of procedure. 
 
 Mortgages, which were originally estates 
 conveyed upon condition, redeemable if the 
 condition were performed at the day, but 
 absolute on non-performance, the right to re- 
 deem being thereby forfeited, owe their ori- 
 gin, in the modern conception of the term, 
 to the court of chancery; which, acting at 
 first, perhaps, in some crises where the non- 
 performance was by mistake or accideut, 
 soon recognized an equitable right of re- 
 demption after the day. as a general rule, in 
 order to relieve against the forfeiture. This 
 became known as an equity of redemption, — 
 a designation, in use at the present day, al- 
 though there has long been a legal right of 
 redemption in such cases. 
 
 Relief against penalties and forfeitures 
 also was formerly obtained only through 
 the aid of the court of chancery. 
 
 In most of the cases which fall under this 
 head, courts of law now exercise a concur- 
 rent jurisdiction. 
 
 Third, where the courts of equity admin- 
 ister equitable relief for the infraction of 
 legal rights, in cases in which the courts of 
 law, recognizing the right, give a remedy ac- 
 cording to their principles, modes, and forms, 
 but the remedy is deemed by equity inade- 
 quate to the requirements of the case. This 
 is sometimes called the concurrent jurisdic- 
 tion. This class embraces fraud, mist nice, 
 a& id fit, ad ministration, legacies, contribu- 
 tion, and cases where justice and conscience 
 require the cancellation, or reformation of 
 instruments, or the rescission, or the specific 
 performance of contracts. (See these several 
 titles.) 
 
 The adequate remedy at law to oust equi- 
 table jurisdiction must be as certain, prompt 
 and efficient to attain the ends of justice as 
 the remedy in equity; Boyce v. Grundy, 3 
 Pet. (U. S.) 210, 7 L. Ed. 655; Williams v. 
 Neely, 134 Fed. 1, G7 C. C. A. 171, G9 L. R. A. 
 232; Castle Creek Water Co. v. City of 
 Aspen, 14G Fed. 8, 7G a C. A. 51G, 8 Ann. 
 Oas. (JGO; for example, an action requiring 
 submission to jury of matters requiring ac- 
 counting is insufficient; Castle Creek Water 
 Co. v. City of Aspen, I 16 Fed. 8, 76 C. C. A. 
 171, 8 Ann. Cas. GGO; Butler Broa Shoe Co. 
 v. Rubber Co.. 156 Fed. 1, 84 C. C. A. PIT: 
 and so, for another instance, if damages Cor 
 breach of contract are too uncertain t<> be 
 assessed the failure to provide for liquidated 
 damages does not give an equitable cause for 
 action; Utz v. Wolf, 159 Fed. GOG, 8G C, C. 
 A. 564. 
 
 The courts of law relieve against fraud, 
 e, and accident where a reined: 
 be had according to their modes and forms; 
 but there are many cases in which the 
 remedy is inadequate for the purpost 
 justice. 
 
 The modes of Investigation and the pecu- 
 liar remedies of the courts of equity ai 
 ten of the greatest importance in this 
 of cases. 
 
 Transfers to defeat or delay creditors, and 
 purchases with notice of an outstandii 
 tie, come under the head of fraud. 
 
 It has been said that there is a 
 amount of evidence required to prove fraud, 
 in equity, than there is at law; but the 
 soundness of that position may well be 
 doubted. 
 
 The court does not relieve in all cases of 
 accident and mistake. 
 
 In many cases the circumstances are such 
 as to require the cancellation or reformation 
 of written instruments or the specific per- 
 formance of contracts, Instead of damages 
 for the breach of them. 
 
 Fourth, where the court of equity admin- 
 isters a remedy because the relations of the 
 parties are such that there are impediments 
 to a legal remedy. Partnership furnishes a 
 marked instance. Joint-tenancy and mar- 
 shalling of assets may be included (See 
 these titles.) 
 
 From the nature of a partner-hip, there 
 are impediments to suits at law between 
 the several partners and the partnership in 
 relation to matters involved in the partner- 
 ship; and impediments of a somewhat sim- 
 ilar character exist in other cases. 
 
 Fifth, where the forms of proceeding in 
 the courts of law are not deemed adequate 
 to the due investigation of the particulars 
 and details of the case. This class includes 
 /, partition, dower, ascertainment of 
 boundaries. 
 
 Sietfh, where, from a relation of trust and 
 confidence, or from consanguinity, the par- 
 ties do not stand on equal ground in their 
 dealings with each other: as. the relations 
 of parent and child, guardian and ward, at- 
 torney and client, principal and agent, ewecu* 
 tor or administrator and legatees or dis- 
 tributees, trus!i< and cestui Que trust, etc, 
 
 nth, where the court grant relief from 
 considerations of public policy, because of 
 the mischief which would result if the court 
 did not interfere. Marriage-brokage agree- 
 ments, contracts in restraint of trade, buying 
 and selling public offices, agrccm- nts founded 
 mi corrupt considerations, usurp, gaming, 
 and contracts with expectant heirs, are of 
 this class. 
 
 Many cases of this and the preceding class 
 are sometimes considered under the head of 
 construct ire fraud. 
 
 Eighth, where a party from incapacity to 
 take care of his rights is under the special
 
 EQUITY 
 
 10G2 
 
 EQUITY 
 
 care of the court of equity, as infants, idiots, 
 and lunatics. 
 
 This is a branch of jurisdiction of very 
 ancient date, and of a special character, said 
 to be founded in the prerogative of the king. 
 
 In this country the court does not, in gen- 
 eral, assume tbe guardianship, but exercises 
 an extensive jurisdiction over guardians, and 
 may hold a stranger interfering with the 
 property of an infant accountable as if he 
 were guardian. 
 
 Ninth, where the court recognizes an ob- 
 ligation on the part of a husband to make 
 provision for the support of his wife, or to 
 make a settlement upon her, out of the prop- 
 erty which comes to her by inheritance or 
 otherwise. 
 
 This jurisdiction is not founded upon ei- 
 ther trust or fraud, but is derived originally 
 from tbe maxim that he who asks equity 
 should do equity. 
 
 Tenth, where the equitable relief appro- 
 priate to the case consists in restraining 
 the commission or continuance of some act 
 of the defendant, administered by means of 
 a writ of injunction. 
 
 Eleventh, the court aids in the procura- 
 tion or preservation of evidence of the rights 
 of a party, to be used, if necessary, in some 
 subsequent proceeding, the court administer- 
 ing no final relief. 
 
 See a full note as to equity jurisdiction 
 in 19 Am. L. Reg. N. S. 563. 
 
 Peculiar Remedies, and the Manner of 
 Administering them. Under this head are 
 — specific performance of contracts; re-exe- 
 cution, reformation, rescission, and cancella- 
 tion of contracts or instruments ; restraint 
 by injunction: Mils quia timet; Mils of 
 peace; protection of a party liable at law, 
 but who has no interest, by bill of interplead- 
 er; election between two inconsistent legal 
 rights; conversion; priorities; tacking; 
 marshalling of securities; application of 
 purchase-money. (See these several titles.) 
 
 In recent periods, the principles of the 
 court of chancery have in many instances 
 been acted on and recognized by the courts 
 of law (as, for instance, in relation to mort- 
 gages, contribution, etc.) so far as the rules 
 of the courts of law admitted of their intro- 
 duction. 
 
 In some states the entire jurisdiction has, 
 by statute, been conferred upon the courts 
 of law, who exercise it as a separate and 
 distinct branch of their authority, upon the 
 principles and according to the modes and 
 forms previously adopted in chancery. 
 
 In a few, the jurisdictions of the courts 
 of law and of equity have been amalga- 
 mated, and an entire system has been sub- 
 stituted, administered more according to the 
 principles and modes and forms of equity 
 than the principles and forms of the common 
 law. 
 
 It is to be noted, however, that the equity 
 system is not abolished or abridged by the 
 
 changes in the courts which administer it, 
 and it is held that the constitutional grant 
 of equity powers to certain courts cannot be 
 impaired by the legislature, so that acts re- 
 quiring the trial by jury of facts in chancery 
 cases are unconstitutional ; Brown v. Kala- 
 mazoo Circuit Judge, 75 Mich. 274, 42 N. W. 
 827, 5 L. R. A. 226, 13 Am. St. Rep. 438; 
 Callanan v. Judd, 23 Wis. 343. So, in an act 
 requiring the court of chancery to direct an 
 issue in suits to quiet title, a provision au- 
 thorizing that court to set aside a verdict 
 and order a new trial is not unconstitutional 
 as violating the division of powers between 
 courts of equity and law ; Brady v. Realty 
 Co., 70 N. J. Eq. 748, 64 Atl. 1078, 8 L. R. A. 
 (N. S.) 866, 118 Am. St. Rep. 778. See an 
 admirable discussion of this head of equi- 
 table jurisdiction in the opinion of Philips, 
 J., in Big Six Development Co. v. Mitchell, 
 13S Fed. 286, 70 C. C. A. 569, 1 L. R. A. (N. 
 S.) 332, affirmed in the Circuit Court of Ap- 
 peals in s. c. 138 Fed. 279, 70 C. C. A. 569, 1 
 L. R. A. (N. S.) 332 (with note), and cer- 
 tiorari denied in id., 199 U. S. 606, 26 Sup. 
 Ct. 746, 50 L. Ed. 330. 
 
 Rules and Maxims. In the administra- 
 tion of the jurisdiction, there are certain 
 rules and maxims which are of special sig- 
 nificance. 
 
 First. Equity having once had jurisdic- 
 tion of a subject-matter because there was 
 no remedy at law, or because the remedy is 
 inadequate, does not lose the jurisdiction 
 merely because the courts of law afterwards 
 give the same or a similar relief. 
 
 Second. Equity follows the law. This is 
 true as a general maxim. Equity follows 
 the law, except in relation to those matters 
 which give a title to equitable relief be- 
 cause the rules of law would operate to sanc- 
 tion fraud or injustice in the particular case. 
 
 Third. Between equal equities, the law 
 must prevail. The ground upon which the 
 suitor comes into the court of equity is that 
 he is entitled to relief there. But if his ad- 
 versary has an equally equitable case, the 
 complainant has no title to relief. 
 
 It has been said that the maxim that 
 where equities are equal relief will be denied 
 does not apply to a suit to reform a deed ; 
 Union Ice Co. v. Doyle, 6 Cal. App. 2S4, 92 
 Pac. 112. 
 
 Fourth. Equality is equity: applied to 
 cases of contribution, apportionment of mon- 
 eys due among those liable or benefited by 
 the payment, abatement of claims on account 
 of deficiency of the means of payment, etc. 
 
 Fifth. He who seeks equity must do equi- 
 ty. A party cannot claim the interposition 
 of the court for relief unless he will do what 
 it is equitable should be done by him as a 
 condition precedent to that relief. See the 
 eleventh maxim, infra. 
 
 See General Proprietors of Eastern Divi- 
 sion of New Jersey v. Force's Ex'rs, 72 N. J. 
 Eq. 56, 127, 68 Atl. 914. This maxim applies
 
 EQUITY 
 
 10G3 
 
 EQUITY 
 
 to one seeking equitable relief, whether he 
 be plaintiff or defendant; Union Stock Yards 
 Nat. Bank v. Day, 79 Neb. 845, 113 N. W. 530 
 (where in an action of ejectment an equi- 
 table defence was pleaded). It waa also ap- 
 plied in refusing to permit plaintiff to dis- 
 miss after having acquired advantage from 
 the suit; Johnson City Southern Ry. Co. v. 
 R. Co., 148 N. C. 59, 61 S. E. 683. 
 
 Sixth. Equity considers that as done 
 Which ought to hare been done. A maxim 
 of much more limited application than might 
 at first be supposed from the broad terms 
 in which it is expressed. In favor of parties 
 who would have had a benefit from some- 
 thing contracted to be done, and who have 
 an equitable right to have the case consider- 
 ed as if it had been done, equity applies this 
 maxim. Illustration: when there is an 
 agreement for a sale of land, and the vendor 
 dies, the land may be treated as money, and 
 the proceeds of the sale, when completed, go 
 to the distributees of personal estate, instead 
 of to the heir. If the vendee die before the 
 completion of the purchase, the purchase- 
 money may be treated as land for the benefit 
 of the heir. 
 
 Seventh. Equity will not permit a wrong 
 without a remedy. 
 
 Eighth. Equity regards the spirit and not 
 the letter, the intent and not the form, the 
 substance rather than the circumstance, as it 
 is variously expressed by different courts. 
 See Moring v. Privott, 140 N. C. 558, 60 S. E. 
 509; Clinton v. Winnard, 135 111. App. 274; 
 Curtin v. Krohn, 4 Cal. App. 131, 87 Pac. 243. 
 Ninth. Where equities are equal the first 
 hi time prevails — qui prior est in tempore, 
 potior est in jure. 
 
 Tenth. Eqwity imputes an intention to per- 
 form an obligation. 
 
 Eleventh. He who comes into equity must 
 come with clean hands. The inequity which 
 deprives a suitor of a right to relief in a 
 court of equity is not general iniquitous con- 
 duct unconnected with the cause of action, 
 but evil practice or wrong-doing in the par- 
 ticular matter as to which judicial protec- 
 tion or redress is sought; Liverpool & Lon- 
 don & Globe Ins. Co. v. Clunie, 8S Fed. 160; 
 Woodward v. Woodward, 41 N. J. Eq. 224, 4 
 Atl. 424 ; or where there is some duty spring- 
 ing from the relations of the parties; Cun- 
 ningham v. Pettigrew, 169 Fed. 335, 94 C. C. 
 A. 467. A good illustration is found in Tole- 
 do Computing Scale Co. v. Scale Co., 142 
 Fed. 919. 74 C. C. A. 89, where it was held 
 that the manufacturers of a "butcher's com- 
 puting scale," who advertised it as making a 
 profit for butchers by counting fractions 
 against the purchaser, could not have equi- 
 table relief against a competitor for calling 
 attention to the fraudulent character of such 
 scale. See Cleaj* Hands. 
 
 Twelfth. It is to the vigilant and not to 
 those icho sleep upon their rights, that Equi- 
 ty leads assistance — vigilantibus et non dor- 
 
 micntibus cquitas suhmiit. This is a mere 
 adaptation or limitation of the general max- 
 im, vigilantibus et non dormitntibus jura 
 (or leges ) aubveniunt. 
 
 Thirteenth. Equity arts in personam and 
 not in rem. As a result of this principle, 
 jurisdiction of the person gives pow< 
 affect by the decree pro utside the 
 
 Jurisdiction; Wilhite v. Skelton, ; !■• l ed. 87, 
 Ts •'. Q a. 635; M.issie v. Watt-, t; Cra. (U. 
 S.) 159, 3 L. Ed. 181; Carpenter v. Sti 
 141 U. S. 105, 11 Sup. Ct. 960, 35 I.. Ed 
 Selover, Bates & Co. v. Walsh, 226 Q. B 
 33 Sup. Ct. 69, 57 L. Ed. I4f,. 'j bis power was 
 notably exercised in the great case of 
 v. Lord Baltimore, 1 Ves. 444, where the 
 Chancellor made a decree for the s; • 
 performance of a contract relating to land 
 in the colonies. 
 
 Fourteenth. Equity delights to do justice 
 and not by ha! 
 
 Most of these maxims are given by Francis 
 or Story and all but the first and lasl by 
 Indermaur and Pomeroy; all of them are 
 recognized and stated by approved writers 
 on Equity and they are here collected as in- 
 cluding all those principles which have been 
 by competent authority selected as funda- 
 mental and designated as maxims of equity. 
 Story only enumerates the first six, and of 
 those he states the first, not as a maxim 
 strictly so termed, but as a doctrine of equi- 
 ty. The last one is given by Story in his 
 Eq. PI. § 72, where he quotes it from Talbott, 
 Ld. Ch., in 3 P. Wins. 031. 
 
 Francis sets out fourteen maxims, as he 
 terms them, but those numbered by him VII. 
 VIII. IX, XI, XII, inclusive, are hot stated 
 supra, because they are mere statements of 
 equitable rules of decision, or doctrin-s. 
 rather than maxims. These, briefly stated, 
 are that he who received the benefit should 
 make, and he who sustained the loss should 
 receive, satisfaction; Francis, Max. IV & V; 
 that equity relieves against accidents, pre- 
 vents mischief and multiplicity of suits; id. 
 VII, VIII. IX: and that equity will not suf- 
 fer a double satisfaction nor permit advan- 
 tage to be taken of a forfeiture when satis- 
 faction can be made; id. XI. XII. 
 
 To the above authorities reference may be 
 made for the cases which gave early expres- 
 sion to these maxims, which have been so 
 universally recognized as fundamental that, 
 except in a few cases of special appli 
 or limitation, the citations are omitted. 
 
 Remedial Process, an b. a suit 
 
 in equity is ordinarily instituted by a com- 
 plaint, or petition, called a bill; and the de- 
 fendant is served with a writ of summons, 
 requiring him to appear and answer, called a 
 subpoma. 
 
 In Pennsylvania the suit is begun by fil- 
 ing and serving a copy of the bill, the sub- 
 poena having been dispensed with by a rule 
 of court. 
 The forms of proceedings in equity are
 
 EQUITY 
 
 1064 
 
 EQUITY 
 
 such as to bring the rights of all persons 
 interested before the court; and, as a gen- 
 eral rule, all persons interested should be 
 made parties to the bill, either as plaintiffs 
 or defendants. 
 
 There may be amendments of the bill; or 
 a supplemental bill, — which is sometimes 
 necessary when the case is beyond the stage 
 for amendment. 
 
 In case the suit fails by the death of the 
 party, there is a bill of revivor, and after 
 the cause is disposed of, there may be a bill 
 of review. 
 
 The defence is made by demurrer, plea, or 
 answer. If the defendant has no interest, he 
 may disclaim. Discovery may be obtained 
 from the plaintiff, and further matter may 
 be introduced, by means of a cross-bill, 
 brought by the defendant against the plain- 
 tiff, in order that it may be considered at 
 the same time. Issue is joined by the plain- 
 tiff's filing a replication to the defendant's 
 answer ; Sto. Eq. PI. § 878 n. But the new 
 Equity Rule 31 (1913) of the United States 
 Supreme Court (33 Sup. Ct. xxvii) does 
 away with a replication unless required by a 
 special order of the court. New or affirma- 
 tive matter in the answer is deemed to be de- 
 nied by the plaintiff. If the answer includes 
 a set-off or counter-claim, the party against 
 whom it is asserted must reply within 10 
 days. In some states, as Delaware, the 
 replication is entered as of course without 
 filing; and special replications are now as a 
 rule not used. 
 
 The final process is directed by the decree, 
 which being a special judgment can provide 
 relief according to the nature of the case. 
 This is sometimes by a perpetual injunction. 
 
 There may be a bill to execute, or to im- 
 peach, a decree. 
 
 Evidence and Practice. The rules of evi- 
 dence, except as to the effect of the answer 
 and the taking of the testimony, are, in gen- 
 eral, similar to the rules of evidence in cases 
 at law. But to this there are exceptions. 
 
 The answer, if made on oath, is evidence 
 for the defendant, so far as it is responsive 
 to the calls of the bill for discovery, and 
 as such it prevails, unless it is overcome by 
 something more than what is equivalent to 
 the testimony of one witness. If without 
 oath, it is a mere pleading, and the allega- 
 tions stand over for proof. 
 
 If the answer is incomplete or improper, 
 the plaintiff may except to it, and it must, 
 if the exceptions are sustained, be so amend- 
 ed as to be made sufficient and proper. 
 
 The case may be heard on the bill and an- 
 swer, if the plaintiff so elects, and sets the 
 case down for a hearing thereon. 
 
 If the plaintiff desires to controvert any 
 of the statements in the answer, he files a 
 replication by which he denies the truth of 
 the allegations in the answer, and testi- 
 mony is taken. 
 
 The testimony, according to the former 
 
 practice In chancery, is taken upon inter- 
 rogatories filed in the clerk's office, and pro- 
 pounded by the examiner, without the pres- 
 ence of the parties. But this practice has 
 heen very extensively modified. Equity rule 
 46 '(33 Sup. Ct. xxxi) of the United States 
 Supreme Court (in effect February 1, 1913), 
 provides that the testimony of witnesses 
 shall be taken in open court except as other- 
 wise provided by statute or by the equity 
 rules. 
 
 If any of the testimony is improper, there 
 is a motion to suppress it. 
 
 The case may be referred to a master to 
 state the accounts between the parties, or 
 to make such other report as the case may 
 require; and there may be an examination 
 of the parties in the master's office. Excep- 
 tions may be taken to his report 
 
 The hearing of the case is before the equi- 
 ty judge, who may make interlocutory or- 
 ders or decrees, and who pronounces the 
 final decree or judgment. There may be a 
 rehearing, if sufficient cause is shown. 
 
 At the present day, wherever equity forms 
 are used, the proceedings have become very 
 much simplified. 
 
 The system of two distinct sets of tri- 
 bunals administering different rules for the 
 adjudication of causes has been changed in 
 England. By the Judicature Acts of 1873 
 and 1S76, the courts of law and equity were 
 consolidated into one Supreme Court of Judi- 
 cature, in which equitable rights and de- 
 fences are recognized in all proceedings to 
 the same effect as a court of chancery would 
 have recognized them before the passing of 
 the act. Equitable remedies are substantial- 
 ly applied. 
 
 In America, the federal courts have equity 
 powers under the constitution, where an ade- 
 quate remedy at law does not exist ; R. S. § 
 723; Smyth v. Banking Co., 141 U. S. 656, 
 12 Sup. Ct. 113, 35 L. Ed. 891 ; Whitehead v. 
 Shattuck, 138 U. S. 146, 11 Sup. Ct, 276, 34 
 L. Ed. 873. The adequate remedy at law, 
 which is the test of the equitable jurisdic- 
 tion of the courts of the United States, is 
 that which existed when the judiciary act 
 of 1789 was adopted, unless subsequently 
 changed by congress ; McConihay v. Wright, 
 121 U. S. 201, 7 Sup. Ct. 940, 30 L. Ed. 932. 
 The equity jurisdiction conferred on the 
 federal courts is the same as that of the for- 
 mer court of chancery in England, is subject 
 to neither limitation nor restraint by state 
 legislation, and is uniform throughout the 
 states; Mississippi Mills v. Cohn, 150 U. S. 
 202, 14 Sup. Ct. 75, 37 L. Ed. 1052; Kirby 
 v. R. Co., 120 U. S. 130, 7 Sup. Ct. 430, 30 
 L. Ed. 569; Smith v. Burnham, 2 Sumn. 
 612, Fed. Cas. No. 13,018 ; but these are only 
 the powers which are judicial in their char- 
 acter, and not such as belong to the chancel- 
 lor of England as the keeper of the con- 
 science of the king, as representing his per- 
 son and administering as his agent his pre-
 
 EQUITY 
 
 10G5 
 
 EQUITY 
 
 rogatives and duties; Gallego's Ex'rs v. At- 
 torney General, 3 Leigh (Va.) 4i30, 24 Am. 
 Dec. 650. 
 
 In the administration of that jurisdiction 
 the federal courts are not to "look only to 
 the statutes of congress. The principles of 
 equity exist Independently of, and anterior 
 to, all congressional legislation, and the stat- 
 utes are either enunciations of those prin- 
 ciples or limitations upon their application 
 in particular cases" ; U. S. v. Lumber Co., 
 200 U. S. 321, 26 Sup. Ct. 282, 50 L. Ed. 499, 
 where it was held that even "in passing up- 
 on transactions between the government and 
 its vendees" the principles of equity must be 
 borne in mind and applied, and that al- 
 though, while the legal title to land renin ins 
 in the government, the holder of an equitable 
 title may not be able to enforce his equity by 
 reason of inability to sue the government ex- 
 cept upon contract, he may protect that equi- 
 ty when sued by the government. 
 
 Equity jurisdiction does not accrue to the 
 federal courts because it is thought that 
 the law as administered in equity is more 
 favorable to a party seeking its aid than the 
 law as administered by the courts of a state 
 in which such party has been sued; Cable v. 
 Ins. Co., 191 U. S. 2S8, 24 Sup. Ct. 74, 48 L. 
 Ed. 1SS. 
 
 Courts of chancery were constituted in 
 some of the states after 1776; and in Penn- 
 sylvania, for a short time, as early as 172o, 
 a court of chancery existed ; see Eawle, Eq. 
 in Penna. ; and in most of the colonies be- 
 fore the revolution; Bisph. Eq. § 14, n. 
 
 In colonial Pennsylvania, and until the act 
 of June 16, 1836, equity, in the absence of 
 courts of equity, was administered through 
 common-law forms. It is pointed out in 
 Rawle, Equity in Penna., that it was not first 
 and only in Pennsylvania that common-law 
 courts enforced equitable principles, and he 
 mentions several heads going back to the 
 Year Books. But the Pennsylvania courts 
 administered under common-law forms all 
 the principles and doctrines of equity. The 
 earliest reported case is Riche v. Broadfield, 
 1 Dall. 16, 1 L. Ed. 18 (17GS). The subject 
 is treated in Laussat's Equity in Penna. and 
 by Sidney G. Fisher in 1 L. Q. EL 455 (2 Sel. 
 Essays in Anglo-Amer. L. II. 810). See also 
 Brightly. Eq. in Penna. A paper in the Re- 
 port of the Texas Bar Assoc. (1S9G) states 
 that "Texas was unquestionably the first 
 state in the American Union controlled by 
 common-law principles to abolish the dis- 
 tinction between law and equity in the en- 
 forcement of private rights and redress of 
 private wrongs." 
 
 At the present time, distinct courts of 
 chancery now exist in but six states : Ala- 
 bama, Arkausas, Delaware, Mississippi, New 
 Jersey and Tennessee. In the greater num- 
 ber of states chancery powers are exercised 
 by judges of common-law courts according to 
 the ordinary practice in chancery. In the 
 
 remaining states, the distinctions between 
 actions at law and suits in equity have been 
 abolished, but certain equitable rei 
 still administered under the statutory form 
 of the civil action. S 
 
 EQUITY EVIDENCE. See EQUITY; EVI- 
 DENCE. 
 
 EQUITY PLEADING. See EQUITY; AN- 
 SWER; Bill; Demubreb; Plla. 
 
 EQUITY OF REDEMPTION. A right 
 which the mortgagor of an es •• lias of re- 
 ng it after it has been i it law 
 
 by the non-payment at the time appointed of 
 the money secured by the mortgage to be 
 paid, by paying the amount of the debt, in- 
 terest, and costs. 
 
 The phrase of equity of redemption is indiscrimi- 
 nately, though often incorrectly, applied to the 
 right of the mortgagor to regain his estate, both 
 before and after breach of condition. In North 
 Carolina, by statute, the former is called a legal 
 right of redemption, and the latter the equity of 
 redemption, thereby keeping a just distinction be- 
 tween these estates ; 1 N. C. Rev. Stat. 266 ; State 
 v. Laval, 4 McCord (S. C.) 340. The interest is rec- 
 ognized at law for many purposes: as a subsisting 
 estate, although the mortgagor in order to enforce 
 his right is obliged to resort to an equitable pro- 
 ceeding, administered generally in courts of equity, 
 but in some states by courts of law; Anderson v. 
 Neff, 11 S. & R. (Pa.) 223 ; or in some states may 
 pay the debt and have an action at law ; Jackson v. 
 Davis, 18 Johns. (N. Y.) 7; Den v. Spinning, 6 X. J. 
 L. 466; Morgan's Lessee v. Davis, 2 H. & McH. 
 (Md.) 9. 
 
 This estate in the mortgagor is one which 
 he may devise or grant; 2 Washb. R. P. 40 ; 
 and which is governed by the same rules of 
 devolution or descent as any other estate in 
 lands; Chamberlain v. Thompson, 1<» Conn. 
 243, 26 Am. Dec. 390; 2 Hare 35. lie may 
 mortgage it; Bigelow v. Willson, 1 Pick. 
 (Mass.) 4S5; and it is liable for his debts; 
 Fox v. Hardin-. 21 Me. 104; Pierce v. Pot- 
 ter, 7 Watts. (Pa.) 475; Preeby v. Tupper, 
 15 Ohio 4G7; United States Bank v. 1 1 nth. 
 4 P.. Monr. (Ky.) 429; Curtis v. Boot. 20 111. 
 53; Punderson v. Brown. 1 Day (Com 
 2 Am. Dec. 53; Slate v. Laval, 4 McCord (S. 
 C.) 336; but see Pal. te, 7 Paig 
 
 (N. Y.) 437; Goring" s P.x'x v. Shrove. 7 Dana 
 (Ky.) 67; Powell v. Williams. 14 Ala. 17'.. 
 48 Am. Dec. 105; Baldwin v. Jenkins, 2:: 
 Miss. 206; Buck v. Sherman, 2 DougL (Mich.) 
 176; Thornton v. Pigg, 2 1 Mo. 249; Van Ness 
 v. Hyatt, 13 Pet. (U. S.) 294. 10 L. Ed. 168; 
 and in many other cases, if the mort£ - 
 still retains possession, he is held to be the 
 owner; 5 Gray 170, note: Parish v. Gilman- 
 ton, 11 N. II. 293; City of Norwich v. Hub- 
 bard, 22 Conn. 5S7 ; Ralston v. Hughes, 13 
 111. 469. 
 
 Any person who is Interested in the inort- 
 gaged estate, or any part of it, having a le- 
 gal estate therein, or a legal or equitable 
 lien thereon, provided he comes in as privy 
 in estate with the mortgagor, may exercise 
 the right; including heirs, devisees, execu- 
 tors, administrators, and assignees of the
 
 EQUITY OF REDEMPTION 
 
 10GG 
 
 EQUITY OF REDEMPTION 
 
 mortgagor; Sheldon v. Bird, 2 Root (Conn.) 
 509; Craik's Adin'rs v. Clark, 3 N. C. 22; 
 Merriam v. Barton, 14 Vt. 501; Coombs v. 
 Warren, 34 Me. 89; Bell v. Mayor, etc., of 
 New York, 10 Paige, Ch. (N. Y.) 49; Smith 
 v. Manning, 9 Mass. 422; H. B. Claflin Co. 
 v. Banking Co., 113 Fed. 958; Bovey De 
 Laittre Lumber Co. v. Tucker, 48 Minn. 223, 
 50 N. W. 1038; subsequent incumbrancers; 
 Burnett v. Denniston, 5 Johns. Ch. (N. Y.) 
 35; Cooper v. Martin, 1 Dana (Ky.) 23; 
 Farnum v. Metcalf, 8 Cush. (Mass.) 46; 
 Hoover v. Johnson, 47 Minn. 434, 50 N. W. 
 475; judgment creditors; Dabney v. Green, 
 4 Hen. & M. (Va.) 101,4 Am. Dec. 503; Elliot 
 v. Patton, 4 Yerg. (Tenn.) 10; Kent v. Laf- 
 fan, 2 Cal. 595; Bowen v. Van Gundy, 133 
 Ind. 670, 33 N. E. 687 ; Schroeder v. Bauer, 
 140 111. 135, 29 N. E. 560 ; tenants for years ; 
 Loud v. Lane, 8 Mete. (Mass.) 517; even If 
 only tenant of a portion of the land mort- 
 gaged ; Kebabian v. Shinkle, 26 R. I. 505, 
 59 Atl. 743; one having an easement; Bacon 
 v. Bowdoin, 22 Pick. (Mass.) 401; one hav- 
 ing an interest as a partner; Emerson v. 
 Atkinson, 159 Mass. 356, 34 N. E. 516; a 
 jointress; 1 Vern. 190; 2 Wh. & T. Lead. 
 Cas. 752; dowress and tenant by curtesy; 
 Eaton v. Simonds, 14 Pick. (Mass.) 98; Jack- 
 son v. Mfg. Co., 86 Ark. 591, 112 S. W. 161, 
 20 L. R. A. (N. S.) 454; Davis v. Mason, 1 
 Pet. (U. S.) 503, 7 L. Ed. 239; Gatewood v. 
 Gate wood, 75 Va. 407 ; Wilkins v. French, 20 
 Me. Ill; Denton v. Nanny, 8 Barb. (N. Y.) 
 618; Wade v. Miller, 32 N. J. L. 296; Hart 
 v. Chase, 46 Conn. 207; Robinson v. Lake- 
 nan, 28 Mo. App. 135 (but to be endowed by 
 the law, the widow must pay the mortgage; 
 Rossiter v. Cossit, 15 N. H. 38) ; a widow 
 who had joined in the mortgage; McArthur 
 v. Franklin, 15 Ohio St. 4S5 ; Posten v. Mil- 
 ler, 60 Wis. 494, 19 N. W. 540; McGough v. 
 Sweetser, 97 Ala. 361, 12 South. 162, 19 L. 
 R. A. 470; 34 U. C. Q. B. 389; or where the 
 husband had mortgaged prior to the mar- 
 riage; Merselis v. Van Riper, 55 N. J. Eq. 
 618, 38 Atl. 196; or where she had joined in 
 the mortgage but the equity of redemption 
 was reserved to the husband alone; [1894] 
 2 Ch. 133; and where she had released her 
 dower, she was entitled to redeem as dow- 
 ress, though the dower had not been assign- 
 ed; Gibson v. Crehore, 5 Pick. (Mass.) 146 
 (followed in McCabe v. Bellows, 1 Allen 
 [Mass.] 269) ; Simonton v. Gray, 34 Me. 50; 
 also where she did not join in the mortgage, 
 which was for purchase money; May v. 
 Fletcher, 40 Ind. 575 (overruling Fletcher v. 
 Holmes, 32 id. 497) ; Wing v. Ayer, 53 Me. 138 ; 
 Wheeler v. Morris, 2 Bosw. (N. Y.) 524; and 
 she may redeem where the husband alone 
 had given a second mortgage ; Hays v. Cretin, 
 102 Md. 695, 62 Atl. 1028, 4 L. R. A. (N. S.) 
 1039; so a widow, though not entitled under 
 the statute to redeem as such, may do so 
 when the mortgage property is the family 
 homestead; Walden v. Speigner, 87 Ala. 379, 
 
 6 South. 81 ; and where she had not joined in 
 a mortgage during coverture, she was held, 
 on a bill to redeem, dowable of the whole 
 premises and not merely in the equity of re- 
 demption and she was not required to re- 
 deem; Opdyke v. Bartles, 11 N. J. Eq. 133. 
 
 A wife is entitled by reason of her in- 
 choate right of dower to redeem during the 
 lifetime of her husband ; Lamb v. Montague, 
 112 Mass. 352; Mackenna v. Trust Co., 184 
 N. Y. 411, 77 N. E. 721, 3 L. R. A. (N. S.) 
 1068, 112 Am. St. Rep. 620, 6 Ann. Cas. 471 ; 
 Gatewood v. Gatewood, 75 Va. 413; and 
 her equity of redemption is stronger in case 
 of homestead property ; Moore v. Smith, 
 95 Mich. 71, 54 N. W. 701 ; Smith v. Hall, 67 
 N. H. 200, 30 Atl. 409. 
 
 A mortgagee for adequate value and in 
 good faith may acquire the equity of re- 
 demption; Wilson v. Vanstone, 112 Mo. 315, 
 20 S. W. 612; and a second mortgagee who 
 purchases such equity is entitled to any pay- 
 ments that may have been made on the first 
 mortgage, but which were not credited there- 
 on; Babbitt v. McDermott (N. J.) 26 Atl. 
 889. 
 
 Where the necessary amount has been ten- 
 dered within the statutory period for re- 
 demption, it can be followed up by suit to 
 redeem at any time before the right to bring 
 suit is barred ; Wood v. Holland, 57 Ark. 
 198, 21 S. W. 223. A court of equity has the 
 discretion governed by the equities of each 
 case, to name terms on which it will let in a 
 party to redeem ; Hannah v. Davis, 112 Mo. 
 599, 20 S. W. 686. 
 
 Where a bill to redeem is filed before the 
 debt is due, it must be dismissed, although 
 the hearing is not had until after the debt 
 is due ; Bernard v. Toplitz, 160 Mass. 162, 35 
 N. E. 673, 39 Am. St Rep. 465. 
 
 Any provision or stipulation in a mortgage 
 which will fetter or "clog the equity of re- 
 demption" (as the phrase goes) is void; 
 [1902] A. C. 24; [1903] A. C. 253; and these 
 two cases in the House of Lords may be con- 
 sidered as settling the question in England 
 after many and varying decisions since the 
 leading case of Howard v. Harris, 1 Vern. 
 33. The same doctrine prevails in this coun- 
 try ; Parmer v. Parmer, 74 Ala. 285 ; Walling 
 v. Aiken, 1 McMul. Eq. (S. C.) 1; Clark v. 
 Henry, 2 Cow. (N. Y.) 324; Quartermous v. 
 Kennedy, 29 Ark. 544; Baxter v. Child, 39 
 Me. 110; Stover's Heirs v. Bounds' Heirs, 1 
 Ohio St. 107; Bayley v. Bailey, 5 Gray 
 (Mass.) 505; Hazeltine v. Granger, 44 Mich. 
 503, 7 N. W. 74. The "eqiiity of redemption 
 is inseparably connected with a mortgage 
 and the right cannot be abandoned by any 
 stipulation of the parties made at the time, 
 even if embodied in the mortgage" ; Peugh 
 v. Davis, 96 U. S. 332, 24 L. Ed. 775 ; the rule 
 protecting the equity of redemption is "well 
 settled" and "characterized by a jealous and 
 salutary policy," and a sale by the mortgagor 
 must be almost as closely examined as one
 
 EQUITY OF REDEMPTION 
 
 10G7 
 
 EQUITY OF REDEMPTION 
 
 by a cestui que trust; Villa v. Rodriguez, 12 
 Wall. (U. S.i 323, 20 L. Ed. 406. 
 
 The doctrine that equity will not permit 
 the parties to a mortgage to "clog the equi- 
 ty of redemption" is only another expn 
 of the maxim "once a mortgage alwa 
 mortgage"; 1 Vern. 33 (where the latter ex- 
 pression seems to have originated). 
 
 The provision is invalid, not only if con- 
 tained in the mortgage, but also if there is 
 a separate contract which is part of the same 
 transaction, whether in writing or by parol; 
 Mooney v. Byrne, 103 N. Y. 86, ."»T N. B. 163 ; 
 Turpie v. Lowe, 114 Ind. .".7, 15 X. B. 
 Wright v. Bates, 13 Vt. 341; [1901] A. C. 323; 
 11 Ir. CI). .;i»T; [1892] A. C. 1; Plummer v. 
 Use, 41 Wash. 5, 82 Pac. 1009, 2 L. R. A. (N. 
 S.) C.27, 111 Am. St. Rep. 997; First Nat. 
 Bank of David City v. Sargeant, 05 Neb. 594, 
 91 N. W. 595, 59 L. R. A. 2!)G; Ind. Rep. Al- 
 lahabad Series 559 (where the rule was en- 
 forced in India) ; though not necessarily of 
 the same date ; Batty v. Snook, 5 Mich. 231 ; 
 Tennery v. Nicholson, ST 111. 404; Bradbury 
 v. Davenport, 114 Cal. 593, 40 Pac. 1002, 55 
 Am. St. Rep. 92; but a separate and inde- 
 pendent agreement, subsequent to the mort- 
 gage, depriving the mortgagor, in effect, of 
 his right to redeem, has been held valid ; 
 [1902] A. C. 401 ; Gleason's Adm'x v. Burke, 
 20 N. J. Eq. 300; Wynkoop v. Cowing, 21 
 111. 570; Bradbury v. Davenport, 120 Cal. 
 152, 52 Pac. 301; Trull v. Skinner, 17 Pick. 
 (Mass.) 213 (where the subject is discussed 
 by Shaw, C. J.) ; Shouler v. Bonander, 80 
 Mich. 531, 45 N. W. 487; McMillan v. Jewett, 
 S5 Ala. 478, 5 South. 145 ; though it "will he 
 closely scrutinized to guard the debtor from 
 oppression" and there must be a new and 
 adequate consideration ; Linnell v. Lyford, 
 72 Me. 280; Brown v. Gaffney, 28 111. 149; 
 and indeed cases may be found which treat 
 the subject wholly with respect to the ques- 
 tion whether the transaction was unconscion- 
 able; Pritchard v. Elton, 38 Conn. 434; or 
 deny that there is any fiduciary relation be- 
 tween a mortgagor and mortgagee; Do Mar- 
 tin v. Phelan, 115 Cal. 588, 47 Pac. 350, 50 
 Am. St. Rep. 115. See Mortgage. 
 
 Many of the cases cited supra are those 
 of absolute conveyances held to be mortgages 
 carrying an equity of redemption and this 
 fact may be shown by parol; Strong v. Stew- 
 art, 4 Johns. Ch. (N. Y.) 107; Cullen v. 
 Carey, 140 Mass. 50, 15 N. E. 131 ; Miller v. 
 Thomas, 14 111. 428. 
 
 So where the parties to a mortgage nego- 
 tiated an absolute sale for a larger amount, 
 with conveyance in fee ■ind a lease with an 
 option to purchase if rent were punctually 
 paid, a default was held fatal to the right to 
 repurchase ; 1 Russ. & M. 500 ; it being no 
 debt, but a conditional sale, which carries 
 no equity of redemption: Conway v. Alex- 
 ander, 7 Cra. (U. S.) 218, 3 L. Ed. 321; 
 Haynie v. Robertson, 5S Ala. 37 ; Robinson 
 
 v. Cropsey, 2 Bdw. Ch. (N. Y.) 1"S; but the 
 
 transaction will be closely scrutinized; 
 
 ■ v. Steadman, a full 
 
 discussion of the "T! the Equity of 
 
 Redemption" by I'rof. Bruce Wyman in 21 
 Ilarv. L. Rev. 459. 
 
 Where a mortgagee of the equitable inter- 
 est of the beneficiary in a i" ulting 
 
 purchased the equity of :■ n of such 
 
 beneficiary, they did not mei j 
 merger was not for the interest of the mort- 
 gagee; Coryell v. Klehm, 157 ill. 463, 11 N. 
 1!. 864. 
 
 A foreclosure sale without redemption may 
 be decreed in case of a mortgage of a rail- 
 rqad or a business plant, of which the value 
 is in keeping it in its entirety; Hammock 
 □ & Trust Co., 105 U. S. 77, 26 L. Ed. 
 1111; even when a state statute provides 
 that all sales of real estate shall be subject 
 to redemption; Pacific Northwest Packing 
 Co. v. Allen, 11G Fed. 312, 54 C. C. A. 648; 
 Sioux City Terminal R. & Warehouse Co. v. 
 Trust Co., 82 Fed. 124, 27 C. C. A. 73. 
 
 See Mortgage. 
 
 EQUIVALENT. Of the same value. 
 Sometimes a condition must be literally ac- 
 complished in forma specified; but some may 
 be fulfilled by an equivalent, per (equipoh ru, 
 when such appears to be the intention of the 
 parties: as, if I promise to pay you one 
 hundred dollars, and then die, my executor 
 may fulfill my engagement; for it is equiva- 
 lent to you whether the money be paid to 
 you by me or by him. Rolle. Abr. -151. For 
 its meaning in patent law, see Tyler v. Bos- 
 ton, 7 Wall. (U. S.) 327, 19 L. Ed. 93; PAT- 
 ENT. 
 
 EQUIVOCAL. Having a double sense. 
 
 In the construction of contracts, it is a 
 general rale that when an expression may 
 be taken in two senses, that shall be pre- 
 ferred which gives it effect See Cowstbuo- 
 
 TION ; INTERPRETATION. 
 
 EQUULEUS (Lat.). A kind of rack for 
 extorting confessions. Encyc. Lond. 
 
 ERASURE. The obliteration of a writing. 
 The effect of an erasure is not per se to de- 
 stroy the writing in which it occurs, but is 
 a question for the jury, and will render the 
 writing void or not. under the same circum- 
 stances as an interlineation. See n <'". 88; 
 5 Bingh. 183; Bailey v. Taylor, 11 Conn. 531, 
 29 Am. Dec. 321; Solibellas v. Beeves - Cura- 
 tor, 3 La. 50; Brooks v. Allen, 62 Ind. 401; 
 Whittlesey v. Hughes, 39 Mo. 34; Cole v. 
 Hills. II X. II. 227; Page v. Donaher.43 Wis. 
 
 221 ; Dodge v. Haskell. 69 Me. 429; Simpson 
 v. Davis. 119 Mass. 269, 20 Am. Rep. 324. 
 See Alteration ; Interlineation. 
 
 ERCISCUNDUS (Lat. cnisecre). For di- 
 viding. I'timilitr eroiscundcB actio. An action 
 for dividing a way, goods, or any matter of 
 inheritance. Vicat, Voc. Jur. ; Calvinus, Lex.
 
 ERECTION 
 
 10G8 
 
 ERROR 
 
 ERECTION. This term is generally used 
 of a completed building. McGary v. People, 
 45 N. Y. 153; Shaw v. Hitchcock, 119 Mass. 
 254 ; but it is held to be of wider import ; it 
 may include trade fixtures; 17 W. R. 153; 
 or a fence; 36 J. P. 743. 
 
 The repairing, alteration, and enlarging, 
 or the removal from one spot to another, of 
 a building, is not erection within the mean- 
 ing of a statute forbidding the erection of 
 wooden buildings; Brown v. Hunn, 27 Conn. 
 332, 71 Am. Dec. 71; Douglass v. Com., 2 
 Rawle (Pa.) 262; Martine v. Nelson, 51 111. 
 422. The moving of a building is not an 
 erection of a building; Trask v. Searle, 121 
 Mass. 229; but the painting of a house has 
 been held to be part of the erection; Mar- 
 tine v. Nelson, 51 111. 422. See Lien. 
 
 E REG I M US (Lat. we have erected). A 
 word proper to be used in the creation of a 
 new office by the sovereign. Bac. Abr. Of- 
 fices, E. 
 
 EROSION. The gradual eating away of 
 the soil by the operation of currents or tides. 
 Mulry v. Norton, 100 N. Y. 433, 3 N. E. 5S1, 
 53 Am. Rep. 206. See Riparian Proprietor; 
 Accretion. 
 
 EROTIC MANIA, EROTOMANIA. In 
 Medical Jurisprudence. A name given to a' 
 morbid activity of the sexual propensity. It 
 is a disease or morbid affection of the mind, 
 which fills it with a crowd of voluptuous im- 
 ages, and hurries its victim to acts of the 
 grossest licentiousness, often in the absence 
 of any lesion of the intellectual powers. It 
 is to be distinguished from Nymphomania 
 and Satyriasis. See Krafft-Ebing, Psyco- 
 pathia Sexualis, Chaddock's ed. ; Mania. 
 
 ERRANT (Lat. errare, to wander). Wan- 
 dering. Justices in eyre were formerly said 
 to be errant (itinerant). Cowell. 
 
 ERRONEOUS. Deviating from the law. 
 Thompson v. Doty, 72 Ind. 338. 
 
 ERROR. A mistake in judgment or devia- 
 tion from the truth in matters of fact, and 
 from the law in matters of judgment. 
 
 Error of fact will excuse the party acting 
 illegally but honestly, in many cases, will 
 avoid a contract in some instances, and 
 when mutual will furnish equity with a 
 ground for interference ; Norton v. Marden, 
 15 Me. 45, 32 Am. Dec. 132; Wheadon v. 
 Olds, 20 Wend. (N. Y.) 174; Eagle Bank of 
 New Haven v. Smith, 5 Conn. 71, 13 Am. 
 Dec. 37; Bond v. Hays, 12 Mass. 36. See 
 Mistake; Ignorance. 
 
 Error in law will not, in general, excuse 
 a man for its violation. A contract made 
 under an error in law is, in general, binding ; 
 for, were it not so, error would be urged in 
 almost every case; Bisph. Eq. 187. 2 East 
 469. See Storrs v. Barker, 6 Johns. Ch. (N. 
 Y.) 166, 10 Am. Dec. 316; Waite v. Leggett, 
 8 Cow. (N. Y.) 195, 18 Am. Dec. 441 ; 2 J. & 
 
 W. 249 ; 1 Y. & C. 232 ; 6 B. & C. 671. But 
 
 a foreign law will for this purpose be con- 
 sidered as a fact; Norton v. Marden, 15 Me. 
 45, 32 Am. Dec. 132 ; Haven v. Foster, 9 Pick. 
 (Mass.) 112, 19 Am. Dev 353; 2 Pothier, Obi. 
 369, etc. 
 
 ERROR, CONFESSION OF. See Appeal 
 and Error. 
 
 ERROR, WRIT OF. See Appeal and Er- 
 ror. 
 
 ESC AM BIO. A writ granting power to an 
 English merchant to draw a bill of exchange 
 on another who is in a foreign country. Reg. 
 Orig. 194. Abolished by Stats. 59 Geo. III. 
 c. 49, and 26 & 27 Vict c. 125. 
 
 ESCAMBIUM. Exchange, which see. 
 
 ESCAPE. The deliverance of a person 
 who is lawfully imprisoned, out of prison, 
 before such a person is entitled to such de- 
 liverance by law. Colby v. Sampson, 5 
 Mass. 310. 
 
 The voluntarily or negligently allowing any 
 person lawfully in confinement to leave the 
 place. 2 Bish. Cr. L. § 917. 
 
 Departure of a prisoner from custody be- 
 fore he is discharged by due process of law. 
 
 Escape takes place without force; prison- 
 breach, with violence; rescue, through the 
 intervention of third parties. 
 
 Actual escapes are those which take place 
 when the prisoner in fact gets out of prison 
 and unlawfully regains his liberty. 
 
 Constructive escapes take place when the 
 prisoner obtains more liberty than the law 
 allows, although he still remains in confine- 
 ment. Bac. Abr. Escape (B); Plowd. 17; 
 Colby v. Sampson, 5 Mass. 310; Steere v. 
 Field, 2 Mas. 4S6, Fed. Cas. No. 13,350. 
 
 Negligent escape takes place when the pris- 
 oner goes at large, unlawfully, either be- 
 cause the building or prison in which he is 
 confined is too weak to hold him, or because 
 the keeper by carelessness lets him go out of 
 prison. 
 
 Voluntary escape takes place when the 
 prisoner has given to him voluntarily any 
 liberty not authorized by law. Colby v. 
 Sampson, 5 Mass. 310; Lowry v. Barney, 2 
 D. Chip. (Vt.) 11. 
 
 When a man is imprisoned in a proper 
 place under the process of a court having 
 jurisdiction in the case, he is lawfully im- 
 prisoned, notwithstanding the proceedings 
 may be irregular; 1 Crawf. & D. 203; see 
 Com. v. Barker, 133 Mass. 399; but if the 
 court has not jurisdiction the imprisonment 
 is unlawful, whether the process be regular 
 or otherwise. Bacon, Abr. Escape in Civil 
 Cases (A 1) ; Scott v. Shaw, 13 Johns. (N. 
 Y.) 378; Ontario Bank v. Hallett, 8 Cow. 
 (N. Y.) 192; Austin v. Fitch, 1 Root (Conn.) 
 288. See State v. Leach, 7 Conn. 452, 18 Am. 
 Dec. 113. 
 
 Letting a prisoner, confined under final 
 process, out of prison for any, even the
 
 ESCAPE 
 
 10G9 
 
 ESCAPE 
 
 shortest, time, is an escape, although he aft- 
 erwards return; 2 W. Bla. 1048; Browning's 
 Bx'r v. Kittenhouse, 40 N. J. L. 230; Servis 
 v. Marsh, 38 Fed. 794; De Grand v. Hunne- 
 well, 11 Mass. 1G0; and this may be (as in 
 the case of imprisonment under a ca. so.) 
 although an officer may accompany him ; 3 
 Co. 44 a; 1 B. & P. 24. Where an Insolvent 
 debtor whose discharge has been refused by 
 the court, surrenders himself to the keeper 
 of a prison, who will not receive him because 
 he has no writ or record showing that he is 
 an insolvent debtor and is not in charge of 
 an otlicer, the surrender is not sufficient to 
 make the keeper liable for the debt in case 
 of the debtor's escape; Saunders v. Perkins, 
 140 Pa. 102, 21 Atl. 257. 
 
 In criminal cases, the prisoner is indicta- 
 ble for a misdemeanor, whether the escape 
 be negligent or voluntary ; 2 Hawk. PI. C. 
 189; Cro. Car. 209; State v. Doud, 7 Conn. 
 384; State v. Brown. 82 N. C. 585; and the 
 officer is also indictable; Martin v. State, 32 
 Ark. 124; State v. Ritchie, 107 N. C. 857, 12 
 S. B. 251. If the offence of the prisoner was 
 a felony, a voluntary escape is a felony on 
 the part of the officer; 2 Hawk. PI. C. c. 19, 
 S 25 ; if negligent, it is a misdemeanor only 
 in any case; 2 Bish. Cr. L. § 925. See State 
 v. Sparks, 78 Ind. 1GG. It is the duty of the 
 officer to rearrest after an escape; Clark v. 
 Cleveland, G Hill (N. Y.) 344; People v. 
 Hanchett, 111 111. 90; 1 Russ. Cr. 572. . 
 
 In civil cases, a prisoner may be arrested 
 who escapes from custody on mesne pro- 
 cess, and the officer will not be liable if he 
 rearrest him; Cro. Jac. 419; but if the es- 
 cape be voluntary from imprisonment on 
 mesne process, and in any case if the escape 
 be from final process, the officer is liable in 
 damages to the plaintiff, and is not excused 
 by retaking the prisoner ; 2 B. & A. 56 ; 
 Doane v. Baker, 6 Allen (Mass.) 260. Noth- 
 ing but an act of God or the enemies of the 
 country will excuse an escape. Fairchild v. 
 Case. 24 Wend. (N. Y.) 381; Rainey's Ex'rs 
 v. Dunning. G X. C. 386; Shattuek v. State, 
 51 Miss. 575. See Lash v. Ziglar, 27 N. C. 
 702; Shuler v. Garrison, 5 W. & S. (Pa.) 
 455. 
 
 Attempts to escape by one accused of 
 crime are presumptive of guilt, ami the con- 
 duct of a defendant in arrest, either before 
 or after being accused of the crime, may be 
 competent evidence against him, as indicat- 
 ing a guilty mind; Bowles v. State, 5S Ala. 
 335; People v. Stanley. 47 Cal. 113, 17 Am. 
 Rep. 401. Where a prisoner being in the cor- 
 ridor of a jail unlocks a door between the 
 corridor and a cell, and thence escapes, he 
 commits prison breach; Randall v. State, 53 
 N. J. L. 48S, 22 Atl. 4G. An unsuccessful at- 
 tempt at prison breach is indictable ; People 
 v. Rose, 12 Johns. (N. Y.) 339. 
 
 On an escape and recapture, the party has 
 a day in court to deny his identity as the 
 
 person sentenced; Com. v. Hill, 1S5 Pa. 397, 
 39 Atl. 1055. 
 
 See Whart. Cr. L. § 1GG7 ; 2G Am. L. Reg. 
 345; Flight; Pbisoneb. 
 
 ESCAPE WARRANT. A warrant address- 
 ed to all sheriffs throughout England, to re- 
 take an escaped prisoner for debt, and 
 mit him to gaol till the debt is satisfied. 
 
 ESCHEAT (Fr. escheoir, to happen). An 
 accidental reverting of lands to the original 
 lord. 
 
 Coke says the word "signifieth properly 
 when by accident the lands fall i 
 of whom they are holden, in which case we 
 say the fee is escheated." And he enumer- 
 ates the instances of failure of blood on the 
 one hand and per delictum tcncnlis, i. e., f"r 
 felony, on the other. Co. Litt. 13a. 
 
 An obstruction of the course of descent, 
 and a consequent determination of the ten- 
 ure, by some unforeseen contingency; in 
 which case the land naturally results back, 
 by a kind of reversion, to the original grantor 
 or lord of the fee ; 2 Bla. Com. 244 et seq. 
 
 Care must be taken to distinguish between for- 
 feiture of lands to the king and this species of es- 
 cheat to the lord; which by reason of their simili- 
 tude in some circumstances, and because the crown 
 is very frequently the immediate lord of the fee, 
 and therefore entitled to both, have been often con- 
 founded together. Forfeiture of lands, and of what- 
 ever else the offender possessed, was the doctrine 
 of the old Saxon law, as a part of punishment for 
 an offence, and does not at all relate to the feodal 
 system, nor is the consequence of any seigniory or 
 lordship paramount; but, being a prerogath 
 c-d in the crown, was neither superseded nor dimin- 
 ished by the introduction of the Norman tenures, a 
 fruit and consequence of which, escheat must un- 
 doubtedly be reckoned. Escheat therefore operates 
 in subordination to this more ancient and superior 
 law of forfeiture. 
 
 The doctrine of escheat upon attainder, taken 
 singly, is this: That the blood of the tenant, by the 
 commission of any felony (under which denomina- 
 tion all treasons were formerly comprised), is cor- 
 rupted and stained and the original donation of the 
 feud is thereby determined, it being always granted 
 to the vassal on the implied condition of du 
 se gcsserit. Upon the thorough demonstration of 
 which guilt, by legal attainder, the feodal c 
 and mutual bond of fealty are held to be 1 
 the estate instantly falls back from the offender to 
 the lord of the fee, and the inheritable quality of 
 his blood is extinguished and blotted out forever. 
 In this situation the law of feodal escheat was 
 brought into England at the Conquest ; and in gen- 
 eral superadded to the ancient law of forfeiture. 
 In consequence of which corruption and extinction 
 of hereditary blood, the land of all felons would 
 immediately rev< st in the lord, but that the supe- 
 rior law of forfeiture intervenes, and Inter* 
 In its passage: In case of treason, forever; in case 
 of other felony, for only a year and a day ; after 
 which time it goes to the lord in the regular course 
 of escheat, as It would have done to the heir of 
 the felon in case the feodal tenures had never been 
 introduced. 2 Bla. Com. 261. 
 
 See Year, Day and YVastb. 
 
 The estate itself which so reverted was 
 called an escheat. Spelman. The term in- 
 cluded also other property which fell to the 
 lord; as, trees which fell down. etc. Cowell. 
 
 All escheats under the English laws are 
 declared to be strictly feudal and to import
 
 ESCHEAT 
 
 1070 
 
 ESCHEAT 
 
 the extinction of tenure. Wr. Ten. 115; 1 
 W. Bla. 123. 
 
 It was not until after the statute of quia 
 emptores that the title of the reversioner 
 became distinct from that of the lord who 
 took by escheat. Before that statute "revert" 
 and "escheat'' were used indiscriminately to 
 express the fact that the land went back to 
 the lord who gave it; 3 Holdsw. Hist. E. L. 
 115. 
 
 That If the ownership of a property become 
 vacant, the right must necessarily subside into the 
 whole community in which, when society first 
 assumed the elements of order and subordination, it 
 was originally vested, Is a principle which lies at 
 the foundation of property ; 4 Kent 425 ; and this 
 seems to be the universal rule of civilized society. 
 Domat, Droit Pub. lib. 1, t. 6, s. 3, n. 1. See 10 
 Viner, Abr. 139 ; 1 Bro. Civ. Law 250 ; Lock v. 
 Lloyd's Estate, 5 Binn. (Pa.) 375 ; McCaughal V. 
 Ryan, 27 Barb. (N. Y.) 376 ; People v. Folsom, 5 Cal. 
 373 ; Armstrong v. Bittinger, 47 Md. 103 ; Appeal of 
 Olmsted, 86 Pa. 284. It was recognized by Justinian, 
 and by the civil law an officer was appointed, called 
 the escheator, whose duty it was to assert the right 
 of the emperor to the hoereditas jacens or caduca 
 when the owner left no heirs or legatee to take it. 
 Code 10, 10, 1. By the earlier English usages the 
 estate of the vassal escheated to his lord when there 
 were no representatives in the seventh degree, and 
 this custom was later extended to Include male de- 
 scendants ad infinitum; Lib. Feud. I. 1, s. 4. 
 
 In case of escheat by failure of heirs, by cor- 
 ruption of blood, or by conviction of certain crimes, 
 the feud fell back into the lord's hands by a ter- 
 mination of the tenure. 1 Washb. R. P. 24. At the 
 present day, in England, escheat can only arise 
 from the failure of heirs. By the Felony Act, 33 and 
 34 Vict. c. 2Z, no confession, verdict, inquest, convic- 
 tion, or judgment of or for any treason or felony, 
 or felo de se, shall cause any forfeiture or escheat ; 
 3 Steph. Com. 660. An action of ejectment, com- 
 menced by writ of summons, has taken the place 
 of an ancient writ of escheat, against the person in 
 possession on the death of the tenant without heirs. 
 
 The early English law is thus stated: "By the 
 law of England, before the Declaration of Inde- 
 pendence, the lands of a man dying intestate and 
 without lawful heirs reverted by escheat to the 
 king as the sovereign lord ; but the king's title was 
 not complete without an actual entry upon the 
 land, or judicial proceedings to ascertain the want 
 of heirs and devisees ; 8 App. Cas. 767, 772 ; 2 Bla. 
 Com. 245. The usual form of proceeding for this 
 purpose was by an inquisition or inquest of office 
 before a jury, which was had upon a commission 
 out of the court of chancery, but was really a pro- 
 ceeding at common law ; and, if it resulted in favor 
 of the king, then, by virtue of ancient statutes, any 
 one claiming title in the lands might, by leave of 
 that court, file a traverse in the nature of a plea or 
 defense to the king's claim, and not in the nature of 
 an original suit; Lord Somers in 14 How. St. Tr. 1, 
 83 ; 6 Ves. 809 ; 4 Madd. 281 ; L. R. 2 Eq. 95 ; Peo- 
 ple v. Cutting, 3 Johns. (N. Y.) 1 ; Briggs v. Light- 
 Boat Upper Cedar Point, 11 Allen (Mass.) 157, 172. 
 The inquest of office was a proceeding in rem; 
 when there was proper office found for the king, 
 that was notice to all persons who had claims to 
 come in and assert them ; and, until so traversed, 
 it was conclusive in the king's favor; Bayley, J., 
 in 12 East 96, 103 ; 16 Vin. Abr. 86, pi. 1." Hamilton 
 v. Brown, 161 U. S. 256, 16 Sup. Ct. 585, 40 L. Ed. 691. 
 
 In mediaeval law there was an escheat to the lord 
 propter defectum sanguinis, if the tenant died with- 
 out heirs ; and propter delictum tenentis, if the 
 tenant committed any gross breach of the feudal 
 bond. The right to escheat depended on tenure 
 alone. 
 
 In this country, however, the state steps in, 
 in the place of the feudal lord, by virtue of 
 
 its sovereignty, as the original and ultimate 
 proprietor of all the lands within its juris- 
 diction ; 4 Kent 424. See Matthews v. Ward, 
 10 Gill & J. (Md.) 450; 3 Dane, Abr. 140. 
 And it escheats to the state as part of its 
 common ownership, either by mere operation 
 of law, or upon an inquest of office according 
 to the law of the particular state ; Hamil- 
 ton v. Brown, 161 U. S. 25G, 16 Sup. Ct. 585, 
 40 L. Ed. 691 ; Smith v. Doe, 111 N. Y. Supp. 
 525. See 21 Harv. L. Rev. 452. It is, per- 
 haps, questionable how far this incident ex- 
 ists at common law in the United States gen- 
 erally. In Maryland the lord proprietor was 
 originally the owner of the land, as the crown 
 was in England. In most of the states the 
 right to an escheat is secured by statute; 4 
 Kent 424 ; 1 Washb. R. P. 24, 27 ; 2 id. 443. 
 
 Such a statute is "not unconstitutional, 
 but only asserts an indisputable, but long- 
 neglected and dormant right in the common- 
 wealth;" Com. v. Blanton's Ex'rs, 2 B. Mon. 
 (Ky.) 393; Crane v. Reeder, 21 Mich 1 . 24, 4 
 Am. Rep. 430; and the state, in a just and 
 proper exercise of its police power, may de- 
 clare new causes of escheat of lands within 
 its territory; Com. v. R. Co., 124 Ky. 497, 
 99 S. W. 596. 
 
 In Indiana and Missouri it was held that 
 at common law, if a bastard died intestate, 
 his property escheated; Doe v. Bates, 6 
 Blackf. (Ind.) 533 ; Bent's Adm'r v. St. Vrain, 
 30 Mo. 268 ; but this is now otherwise by 
 statute in those states and in most of the 
 others. See Bastard. So at common law 
 there was an escheat if the purchaser or 
 heirs of the decedent were aliens ; Montgom- 
 ery v. Dorion, 7 N. H. 475 ; Co. Litt. 2 b; but 
 it is usually otherwise by the statutes of the 
 several states. See Alien. 
 
 Hereditaments which, although they may 
 be held in fee-simple, are not strictly subjects 
 of tenure, such as fairs, markets, commons 
 in gross, rents charge, rents seek, and the 
 like, do not escheat, but become extinct upon 
 a failure of heirs of the tenant; Challis, R. 
 P. 30. 
 
 The method of proceeding, and subject' 
 matter. To determine the question of es- 
 cheat a proceeding must be brought in the 
 nature of an inquest of office or office found ; 
 Jackson v. Adams, 7 Wend. (N. Y.) 367 ; Peo- 
 ple v. Folsom, 5 Cal. 373; Gresham v. Rick- 
 enbacher, 28 Ga. 227 ; State v. Tilghman, 14 
 la. 474 ; Louisville School Board v. King, 127 
 Ky. 824, 107 S. W. 247, 15 L. R. A. (N. S.) 
 379; In re Miner's Estate, 143 Cal. 194, 76 
 Pac. 968 ; and to give the inquisition the ef- 
 fect of a lien the same must be filed, as the 
 record of it is the only competent evidence 
 by which title by escheat can be estab- 
 lished ; Crane v. Reeder, 21 Mich. 24, 4 Am. 
 Rep. 430 ; People v. Cutting, 3 Johns. (N. Y.) 
 1 ; and such action must also be taken to re- 
 cover escheated lands held in adverse pos- 
 session ; after which an entry must be made
 
 ESCHEAT 
 
 1071 
 
 ESCHEAT 
 
 to give the state a right of possession; Jack- 
 son v. Adams, 7 Wend. (N. Y.) 307; Com. v. 
 Ilite, 6 Leigh (Va.) 58S, 29 Am. Dec. 226; 
 Held v, State, 74 Intl. 262; and the facts 
 which support the escheat must be stated ; 
 Cathain v. State, 2 Head (Tenn.) 553; Ap- 
 peal of Ramsey, 2 Watts (Pa.) 228, 27 Am. 
 Dec. 301 ; a bill of information must be filed 
 and a scire facias issued against all alleged 
 to have, hold, claim, or possess such estate ; 
 Wallahan v. Ingersoll, 117 111. 123, 7 N. EL 
 519; and the names of all persons in posses- 
 sion of the premises, and all who were known 
 to claim an interest therein, must be set 
 forth and the scire facias served on them 
 personally ; to all other persons constructive 
 notice is sufficient; id. In Texas, no pro- 
 ceedings can be had, except under and ac- 
 cording to an act of the legislature ; Wieder- 
 anders v. State, 64 Tex. 133; Hamilton v. 
 Brown, 161 U. S. 256, 16 Sup. Ct. 585, 40 L. 
 Ed. 691. 
 
 In many of the states, however, the doc- 
 trine in force is, that land cannot remain 
 without an owner ; it must vest somewhere, 
 and on the death of an intestate without 
 heirs it becomes eo instante the property of 
 the state; Mooers v. White, 6 Johns. Ch. (N. 
 Y.) 360; Hall v. Gittings' Lessee, 2 Harr. & 
 J. (Md.) 112; State v. Ileeder, 5 Neb. 203; 
 Montgomery v. Dorion, 7 N. H. 475 ; Rubeck 
 v. Gardner, 7 Watts (ra.) 455; Haigh v. 
 Haigh, 9 R. I. 26 ; Colgan v. McKeon, 24 N. 
 .1. L. 566. In Wallahan v. Ingersoll, 117 111. 
 123, 7 N. E. 519, it was held that on the death 
 of an intestate without heirs, the title to his es- 
 tate devolves immediately upon the state, but, 
 in order to make that title available, it must 
 be established in the manner prescribed by 
 law by proceedings in the proper court, in 
 the name of the people, for the purpose of 
 establishing by judicial determination the 
 title of the state. After a long lapse of time 
 an inquest will be presumed ; Doe v. Roe, 26 
 Ga. 5S2. A right of action for the recovery 
 of lands is vested in the state at the death 
 of the owner whose property escheats; John- 
 ston v. Spicer, 107 N. Y. 185, 13 N. E. 753. 
 Persons claiming as heirs may come in under 
 the statute and obtain leave to make up an 
 issue at law to have their rights determined ; 
 Ex parte Williams. 13 Rich. (S. C.) 77; In 
 re Alton's Estate, 220 Pa. 258, 69 Atl. 902; 
 State v. Knott, 54 Fla. 13S, 44 St. nth. 744. 
 Tlu' legislature is under no constitutional ob- 
 ligation to leave the title to such property in 
 abeyance, and a judicial proceeding Cor ascer- 
 taining an escheat on due notice, actual to 
 known, and constructive to all possible un- 
 known, claimants, is due process of law; and 
 a statute, providing for such proceeding does 
 not impair the obligation of any contract, 
 contained in the grant under which the for- 
 mer owner held whether from the state or a 
 private person ; Hamilton v. Brown, 161 U. 
 S. 256, 275, 16 Sup. Ct. 5S5, 40 L. Ed. 691. 
 
 Not oidy do estates in possession escheat, 
 
 but also those in remainder, If vested; Peo- 
 ple v. Conklin, 2 Hill (X. Y.) 07 ; and equi- 
 table as well as legal estates; Cross v. De 
 Yalle, 1 Wall. (U. S.) 5, 17 L. Ed. 515; At- 
 kins v. Kron, 40 N. 0. 207; :'. Washb. II. P. 
 446; Matthews v. Ward, 10 Gill & .1. (Md.) 
 443; 4 Kent 424; (in many states tbis pro- 
 vision is statutory, but the rule in England Ls 
 contrary; 1 Eden 177;) also those held in 
 trust, when the trust expires; In re Linton's 
 Estate, 198 Pa. 438, 48 k\ 
 ty of redemption; Seitz v. tunitt, 
 
 117 App. Dlv. 401, 102 X. Y. Supp. 732; and 
 lands subject to dower, and the right . 
 waived by the appearance of the attorney- 
 general of the state in an action to admeas- 
 ure dower; Smith v. Doe, 111 X. Y. Supp. 
 525; also property devised by a void will, and 
 the state is the proper party to contest the 
 will; State v. Lancaster, 119 Tenn. 038, 105 
 S. W. S5S, 14 L. R. A. (X. S.) 991, 14 Ann. 
 Cas. 953 ; and duly constituted officials may 
 intervene; Gombault v. Public Adm'r, 4 
 Bradf. Sur. (X. Y.) 226; contra, Ilopf v. 
 State, 72 Tex. 2S1, 10 S. W. 589. 
 
 Proceedings to traverse an inquest. An in- 
 quisition is traversable, the traverser being 
 considered as a defendant, and being only re- 
 quired to show failure of title in the state 
 and bare possession in himself; People v. 
 Cutting, 3 Johns. (N. Y.) 1; contra, in Penn- 
 sylvania, where such traverser is in the posi- 
 tion of plaintiff in ejectment and must show 
 a title superior to the commonwealth; pro- 
 ceedings may be brought by any one claim- 
 ing an interest and including an administra- 
 trix in possession; Com. v. Compton, 137 Pa. 
 138, 20 Atl. 417; In re Alton's Estate, 220 
 Pa. 258, 69 Atl. 902; it is a pn 
 law and not in equity; In re Fenstermacher 
 v. State, 19 Or. 504, 25 Pac. 142; and the 
 court of common pleas has jurisdiction over 
 it; Com. v. Compton, 137 Pa. 138, 20 Atl. 
 417; the traverser being allowed to 
 and conclude to the jury; Com. v. Desilver, 
 2 Asbm. (Pa.) 103. And if only one of those 
 notified appear, he is entitled to a separate 
 trial of his traverse; In re Malone's Estate, 
 21 S. C. 435; but such traverser has in. pre- 
 cedence over others on the dockets of c 
 Lame v. Dobson, Riley (S. O.) 301. 
 
 When all the members of a partnership 
 have died intestate and without heirs, the 
 properly escheats to the state, but the heirs 
 or kindied of any one of the partners may 
 traverse the inquisition; Com. v. Land Co., 
 57 Pa. 102. 
 
 The law favors the presumption of the 
 existence of heirs, and there must i e 
 thing shown by (hose claiming by virtue of 
 escheat to rebut that presumption; Appeal 
 of Ramsey, 2 Watts (Pa.) 228, 27 Am. Dec. 
 301; State v. Teuton's Estate, n Tea 
 but see contra, Brown v. state. 36 Tex. 283; 
 Hammond's Lessee v. inloes, I Md. L38; Uni- 
 versity <»f North Carolina v. Harrison, 90 N. 
 C. 3S5, overruling as to this point University
 
 ESCHEAT 
 
 1072 
 
 ESCHEAT 
 
 of North Carolina v. Johnston, 2 N. C. 373. 
 Proceedings for an escheat for want of heirs 
 or devisees, like ordinary provisions for the 
 administration of his estate, presuppose that 
 he is dead ; if he is still alive, the court is 
 without jurisdiction and its proceedings are 
 null and void, even in a collateral proceed- 
 ing; Hamilton v. Brown, 161 U. S. 256, 267, 
 16 Sup. Ct. 5S5, 40 L. Ed. 691, citing Scott v. 
 McNeal, 154 U. S. 34, 14 Sup. Ct. 110S, 38 L.. 
 Ed. bOQ ; Hall v. Claiborne, 27 Tex. 217. 
 
 Equity cannot enjoin proceedings to have 
 an escheat declared, where every question 
 presented could be decided on a traverse 
 should such escheat be found ; Appeal of Olm- 
 sted, S6 Pa. 2S4 ; and an amicus curice cannot 
 move to quash an inquisition, unless he has 
 an interest himself or represents some one 
 who has ; Dunlop v. Com., 2 Call. (Va.) 284. 
 
 Disposition of escheated lands by the state. 
 Where the state takes the title of escheat- 
 ed land, it is entitled to the rights of the 
 last owner; therefore, such lands cannot 
 be taken up by location as vacant land ; 
 Hughes v. State, 41 Tex. 13 ; or be regarded 
 as ungranted land ; but it must be sold pur- 
 suant to the statute; Bodden v. Speigner, 2 
 Brev. (S. C.) 321; Straub v. Diniin, 27 Pa. 
 36; arid a grant of such lands by the state 
 before office found is valid ; Rubeek v. Gard- 
 ner, 7 Watts (Pa.) 456; Colgan v. McKeon, 
 24 N. J. L. 566 ; McCaughal v. Ryan, 27 Barb. 
 (N. Y.) 376; as is also a grant of land to 
 escheat in futuro; Nettles v. Cummings, 9 
 Rich. Eq. (S. C.) 440; but no authority is 
 vested in officers of the land office to issue 
 warrants for the taking up of escheated 
 lands. After seven years from the inquisi- 
 tion they shall be sold at auction ; Straub v. 
 Dimm, 27 Pa. 36 ; and the power to order the 
 sale of the property is vested in the district 
 court ; Hughes v. State, 41 Tex. 10. The dis- 
 position of funds secured by the sale of such 
 property must be strictly in conformity with 
 the state statute; and the legislature of a 
 state can pass no act diverting the funds to 
 another purpose ; State v. Reeder, 5 Neb. 203 ; 
 - where the constitution gives to the legislature 
 the power to provide methods to enforce the 
 forfeiture, there can be no proceedings until 
 the legislature acts; Wiederanders v. State, 
 64 Tex. 133. 
 
 In addition to the escheat for want of 
 heirs of a decedent, there are in some states 
 provisions for forfeiture to the state of lands 
 held by corporations under certain circum- 
 stances ; in Kentucky, property of a corpora- 
 tion not necessary to its business and held 
 for more than five years is forfeited for the 
 benefit of schools ; Com. v. Property Co., 128 
 Ky. 790, 109 S. W. 1183 ; in Pennsylvania it 
 is provided that land held by or for corpora- 
 tions, either directly or indirectly, unless 
 specially authorized by statute, shall "es- 
 cheat" to the state, but land belonging to a 
 mining company, all of whose stock was held 
 by a railroad company, was held not to be 
 
 within the mischief of such statute ; Com. v. 
 R. Co., 132 Pa. 591, 19 Atl. 291, 7 L. R. A. 
 634. Corporate property so forfeited is tak- 
 en however subject to the payment of debts 
 of the corporation ; War Eagle Consol. Min. 
 Co. v. Dickie, 14 Idaho 534, 94 Pac. 1034. 
 Though in passing or construing such stat- 
 utes as these, both legislatures and courts 
 have employed the term "escheat," it would 
 appear to be a departure from its precise 
 meaning as used in the common law. 
 
 In some states statutes provided that cer- 
 tain unclaimed funds held by corporations 
 shall go to the state; such acts are constitu- 
 tional ; Deaderick v. Washington County 
 Court, 1 Coldw. (Tenn.) 202. 
 
 A statute, providing that all moneys re- 
 maining in the registry of the United States 
 courts unclaimed for ten years or longer shall 
 be paid over to the government, is unconsti- 
 tutional ; the United States cannot be regard- 
 ed as a parens patriw, and the right of es- 
 cheat belongs only to the states; American 
 Loan & Trust Co. v. Grand Rivers Co., 159 
 Fed. 775. 
 
 See, generally, American Mortgage Co. of 
 Scotland v. Tennille, 87 Ga. 28, 13 S. E. 15S, 
 12 L. R. A. 529; Alien; Bastard; Dissolu- 
 tion; Foreign Corporation. 
 
 ESCHEAT0R. The name of an officer 
 whose duties are generally to ascertain what 
 escheats have taken place, and to prosecute 
 the claim of the sovereign for the purpose 
 of recovering the escheated property. 10 
 Yin. Abr. 158; Co. Litt. 13 6; Toml. L. D. 
 His office was to be retained but one year ; 
 and no one person could hold the office 
 more than once in three years. 
 
 This office has fallen into desuetude. There was 
 formerly an escheator-general in Pennsylvania but 
 his duties have been transferred to the auditor- 
 general, and in most of the states the duties of this 
 office devolve upon the attorney-general. 
 
 ESCRIBAN0. In Spanish Law. The pub- 
 lic officer who is lawfully authorized to re- 
 duce to writing and verify by his signature 
 all judicial acts and proceedings as well as 
 all acts and contracts entered into between 
 private individuals. 
 
 ESCROW. A deed delivered to a stran- 
 ger, to be by him delivered to the grantee 
 upon the happening of certain conditions, 
 upon which last delivery the transmission 
 of title is complete. 
 
 The delivery must be to a stranger; Fair- 
 banks v. Metcalf, 8 Mass. 230. See 9 Co. 
 137 6; Foley v. Cowgill, 5 Blackf. (Ind.) 18, 
 32 Am. Dec. 49 ; Gilbert v. Ins. Co., 23 Wend. 
 (N. Y.) 43, 35 Am. Dec. 548; Den v. Partee, 
 19 N. C. 530; Simonton's Estate, 4 Watts 
 (Pa.) 180; Jackson v. Sheldon, 22 Me. 569; 
 for when delivered directly to the grantee; 
 Campbell v. Jones, 52 Ark. 493, 12 S. W. 
 1016, 6 L. R. A. 783 ; Stevenson v. Crapnell, 
 114 111. 19, 28 N. E. 379; East Texas Fire 
 Ins. Co. v. Clarke, 1 Tex. Civ. App. 238, 21 
 S. W. 277; Hubbard v. Greeley, 84 Me. 340,
 
 ESCROW 
 
 1073 
 
 ESCROW 
 
 24 Atl. 799, 17 L. R. A. 511 ; or to the agent 
 or attorney of the grantee; Day v. La. 
 85 Me. 242, 27 Atl. 124: it cannot be tr< 
 as an escrow ; but see McLaughlin v. Wheel- 
 er, 1 S. D. 497, 47 N. W. 816; Shelby v. 
 Tardy, 81 Ala. :J27, 4 South. 276. 
 
 In Cincinnati, W. & Z. R. Co. v. Iliff, 13 
 Ohio St. 235, the court, after giving I 
 definition, says: "The phrase 'a stra 
 used in this definition, or the phrase 'a third 
 person' which in many of the books i 
 interchangeably with it, it seems to me can 
 mean no more than this, a stranger to the 
 deed as not being a party to it; or at 
 this, a person so free from any personal or 
 legal identity with the parties to the instru- 
 ment as to leave him free to discharge his 
 duties as a depositary to both parties, with- 
 out involving a breach of duty to either." It 
 was there held that an agent of one party 
 was not incapacitated from becoming the 
 depositary of an escrow. An officer of a cor- 
 poration may receive a deed in i 
 though the corporation be a party tb 
 Southern Life Ins. & Trust Co. v. Cole, 4 
 l-'la. 359; Bank of Healdsburg v. Ballnache, 
 65 Cal. 327, 4 Pac. 10G. The second delivery 
 must be conditioned, and not merely post- 
 poned; O'Kelly v. O'Kelly, 8 Mete. (Mass.) 
 436; -2 B. & C. S2; Shop. Touch. 58. Care 
 should be taken to express the intent of the 
 first delivery clearly; Clark v. Gifford. 10 
 Wend. (N. Y.) 310; Fairbanks v. Metcalf, 
 8 Mass. 230; Jackson v. Sheldon, 22 Me. 5G9; 
 White v. Bailey, 14 Conn. 271. An escrow 
 has no effect as a deed till the performance 
 of the condition ; Hinman v. Booth, 21 Wend. 
 (N. V.i 267; Gaston v. City of Portland, 16 
 Or. 255, 1!) Pac. 127; Harkreader v. Clayton, 
 56 Miss. 383, 31 Am. Rep. 369; Patrick v. 
 McCormick, 10 Neb. 1, 4 X. W. 312; and 
 takes effect from the second delivery : Green 
 V. Putnam. 1 Barb. (N. Y. > 500. See Poster 
 v. Mansfield, 3 Mete. (Mass.) 412. .".7 Am. 
 Dec. 154; Jackson v. Rowland. 6 Wend. (N. 
 Y.) C,m, 22 Am. Dec. f>.">7 ; Stiles v. Brown. 
 16 Vt. 563; Rhodes v. School Dist, 30 Me. 
 110; Blight v. Schenck. 10 Pa. 285, 51 Am. 
 Dec. 478; White Star Line Steamboat Co. v. 
 Moragne, 91 Ala. 610, 8 South. 867. But 
 where the parties announce their intention 
 that the escrow shall, after the performance 
 of the condition, take effect from the date 
 of the deed, such intention will control: Devi. 
 Deeds 329; Price v. R. Co., 34 111. 1". 
 
 A deed delivered in escrow cannot be re- 
 voked; McDonald v. Huff, 77 Cal. 279, 19 
 Pac. 499. 
 
 The term, though usually applied to deeds. 
 is sometimes applied to any written instru- 
 ment; Andrews v. Thayer, 30 Wis. 228; Foy 
 v. Blackstone. 31 111. . r )",s. 83 Am. Dec. 246; 
 Stewart v. Anderson, 59 Ind. 37.".; Optmann 
 v. Bank, 4ft Mich. 56. 12 X*. W. 907; Kemp 
 v. Walker. 10 Ohio, 118; 12 Q. B. 317; Ben- 
 ton v. Martin. 52 N. Y. 570; Sweet v. Stevens. 
 7 R. I. 375; Clark v. Campbell, 23 Utah, 569, 
 Bouv.— 68 
 
 65 Pac. 496, 54 L R. I Am. St. 
 
 710. They are usually cases of incomplete 
 
 instruments, not strictly escrow. A 
 
 tiable instium. . 
 
 their free and u: 
 
 protect the right 
 
 fide without notice. It tb is the 
 
 consequences which i 
 
 tioii of promissory notes and bi. 
 
 through the fraud, deception or mist 
 
 of the persons to whom they 
 
 by the maker, on those who euabi 
 
 hold themselves out as owners of the | 
 
 jure disponendi, and not on innocent holders 
 
 who have tak( a it for value withi at i 
 
 Fearing v. Clark, 16 Cray (Mass.) 74, 77 
 
 Am. Dec. 394, followed in Provident I 
 
 Trust Co. v. Mercer County, 11 I 
 
 > L. Ed. 1156, To the 
 effect Burson v. Buntington, 21 Mich. 415, 4 
 Am. Pep. 497; Vallett V. Parker, r, V. 
 ( X. Y.) 015; Pong Island Loan & Trust Co. 
 v. By. Co.. 65 Fed. 
 
 It is held a delivery in i r one per- 
 
 son to sign a note as surety upon the e\ 
 condition that another person's signature is 
 also to be obtained, and to deliver the note 
 to the maker for that purpose; Perry v. Pat- 
 terson, 5 Eumph. (Tenn.) 1"".. 42 Am. Dec. 
 424. But it is held that signing a note and 
 placing it in the hands of one of tl. 
 with direction to deliver it only on condition 
 that it should be signed by other designated 
 persons, is not a delivery in escrow, but of 
 an incomplete instrument, and there can be 
 no recovery against those executing it when 
 it has not been executed by all; Keener v. 
 Crago, si Pa. 166. 
 
 It has been held that notes cannot be de- 
 livered in escrow to the agent of the payee to 
 hold until the maker could investigate the 
 indebtedness for which they were given: 
 Murray v. W. YY. Kimball Co., 10 Ind. App. 
 184, 37 N. K. 7.;!: tc/.. 10 Ind. App. MP 37 X. 
 B. 7".»;; contra. Stewart v. Anderson, GO Ind. 
 375; or so as to make the signature of an- 
 other person essential to its validity; Burt 
 v. Ford, 142 Mo. 283, 1 1 S. W. 228, -!l L. B 
 A. 823. But it is held that if the 
 of sueh character as to negative its being 
 delivered to the grantee, it may nevertl 
 operate as a delivery in escrow, alth 
 placed in the hands of th< Idtdr, 
 
 if he was Intended to hold it as an It 
 plete instrument ; 1.. P 20 Eq. 262; Ashford 
 v. Prewitt. 102 Ala. 264, 11 South. 663, 48 
 Am. St. Pep. .':7. 
 
 As a general rule, When an instrument is 
 I in the hands of a third person in es- 
 crow, it t- a the second delii 
 ery ; but such a rule does not apply where 
 either justice or necessity requires a • 
 1,, a Qction in order to avoid injury (as in 
 case of Intervening tights between the first 
 and Becond delivery, it shall take effect from 
 its first delivery); Shirley's Lessee v. Ayres, 
 14 Ohio 307. 45 Am. Dec. 546; Bank v. Luni-
 
 ESCROW 
 
 1074 
 
 ESCROW 
 
 ber Co., 32 W. Va. 357, 9 S. E. 243. In such 
 a case, much depends on the intent of the 
 parties to be collected from the nature of 
 the transaction; Calhoun County v. Emigrant 
 Co., 93 U. S. 124, 23 L. Ed. 826. This fiction 
 is adopted to prevent a manifest hardship; 
 Craddock v. Barnes, 142 N. C. 89, 54 S. E. 
 1003 ; and there is no reason why it should 
 not be invoked to effectuate the lawful intent 
 of the parties; id. 
 
 In Gish v. Brown, 171 Pa. 479, 33 Atl. 60, 
 the fiction of relation back was adopted 
 where the grantor delivered the deed to a 
 third person with absolute instructions to 
 hold it until his death and then deliver it to 
 the grantee. So where one of the parties has 
 come under a disability such as mental in- 
 capacity; Wheelwright v. Wheelwright, 2 
 Mass. 447, 3 Am. Dec. 66; and where a 
 woman, after delivering a bond on condition, 
 marries before the happening of the condi- 
 tion ; 1 Ves. Jr. 275 ; and where the condi- 
 tion was capable of performance within the 
 lifetime of the grantor, though the instru- 
 ment, delivered to a third person, provided 
 that it should not take effect until the death 
 of the grantor; Nolan v. Otney, 75 Kan. 311, 
 89 Pac. 690, 9 L. R. A. (N. S.) 317, where 
 the provision was construed to mean that 
 the title was to vest at once, and only the 
 enjoyment to be postponed until the death of 
 the grantor. 
 
 It is the performance of the condition and 
 not the second delivery that gives it vitality 
 as a deed ; State Bank at Trenton v. Evans, 
 15 N. J. L. 155, 28 Am. Dec. 400; Clark v. 
 Campbell, 23 Utah 569, 65 Pac. 496, 54 L. R. 
 A. 508, 90 Am. St. Rep. 716 ; Calhoun County 
 v. Emigrant Co., 93 U. S. 124, 23 L. Ed. 826. 
 No title passes until the condition is per- 
 formed ; Calhoun County v. Emigrant Co., 
 93 U. S. 124, 23 L. Ed. 826; but the instant 
 the conditions are performed the instrument 
 takes effect, though the depositary has not 
 formally delivered it; Taylor v. Thomas, 13 
 Kan. 217; Missouri Pac. R. Co. v. Atkison, 17 
 Mo. App. 484. The depositary then holds 
 possession for the grantee; Cannon v. Hand- 
 ley, 72 Cal. 133, 13 Pac. 315. 
 
 Where dividends are declared on stock de- 
 posited in escrow, they are the property bf 
 the seller; Clark v. Campbell, 23 Utah 569, 
 65 Pac. 496, 54 L. R. A. 508, 90 Am. St. Rep. 
 716. 
 
 One acting in escrow acts at his peril with 
 either party without the consent of the other; 
 Citizens' Nat. Bank of Roswell, N. M., v. 
 Davisson, 229 U. S. 212, 33 Sup. Ct 625, 57 
 L. Ed. . 
 
 See, generally, Shirley's Lessee v. Ayres, 
 14 Ohio 309, 45 Am. Dec. 546; Ruggles v. 
 Lawson, 13 Johns. (N. Y.) 285, 7 Am. Dec. 
 375; Carr v. Hoxie, 5 Mas. 60, Fed. Cas. No. 
 2,438; Evans v. Gibbs, 6 Humph. (Tenn.) 
 405; Foster v. Mansfield, 3 Mete. (Mass.) 
 412, 37 Am. Dec. 154; Crane v. Hutchinson, 3 
 111. App. 30* Clements v. Hood, 57 Ala. 459; 
 
 Miller v. Sears, 91 Cal. 282, 27 Pac. 589, 25 
 Am. St. Rep. 176; Minah Consol. Min. Co. 
 v. Briscoe, 47 Fed. 276 ; 10 U R. A. 469, n. 
 
 As to the validity of a deed to take effect 
 at the death of the grantor, see Delivery. 
 
 ESCUAGE. In Old English Law. Service 
 of the shield. Tenants who hold their land 
 by escuage hold by knight's service. 1 
 Thomas, Co. Litt. 272; Littleton § 95, 86 6. 
 Abolished by Stat. 12 Car. II. e. 24^ Scutage. 
 
 ESKETORES. Robbers or destroyers of 
 other men's lands and fortunes. Cowell. 
 
 ESKIPPAMENTUM. Tackle or furniture; 
 outfit. Certain towns in England were 
 bound to furnish certain ships at their own 
 expense and with double skippage or tackle. 
 The modern word outfit would seem to ren- 
 der the passage quite as satisfactorily ; 
 though the conjecture of Cowell has the ad- 
 vantage of antiquity. 
 
 ESKIPPER, ESKIPPARE. To ship. Kelh. 
 Norm. L. D. ; Rast 409. 
 
 ESKIPPESON. Shippage, or passage by 
 sea. Spelled, also, skippeson. Cowell. 
 
 ESNECY. Eldership. In the English law, 
 this word signifies the right which the eldest 
 coparcener of lands has to choose first one 
 of the parts of the estate after it has been 
 divided. 
 
 ESP ERA. The period fixed by a compe- 
 tent judge within which a party is to do cer- 
 tain acts, as, e. g., to effect certain payments, 
 present documents, etc. ; and more especially 
 the privilege granted by law to debtors, al- 
 lowing them certain time for the payment of 
 their indebtedness. 
 
 ESPLEES. The products which the land 
 or ground yields; as, the hay of the meadows, 
 the herbage of the pasture, corn or other 
 produce of the arable, rents, and services. 
 See Witherow v. Keller, 11 S. & R. (Pa.) 
 275; Dane, Abr. Index; Fosgate v. Mfg. & 
 Hydraulic Co., 9 Barb. (N. Y.) 293. 
 
 ESPOUSALS. A mutual promise between 
 a man and a woman to marry each other at 
 some other time : it differs from a marriage, 
 because then the contract is completed. 
 Wood, Inst. 57. See Betrothment. 
 
 ESQUIRE. A title applied by courtesy to 
 officers of almost every description, to mem- 
 bers of the bar, and others. No one is en- 
 titled to it by law ; and therefore it confers 
 no distinction in law. 
 
 In England, it is a title next above that of a gen- 
 tleman and below that of a knight. Camden reck- 
 ons up four kinds of esquires particularly regarded 
 by the heralds: the eldest sons of knights, and their 
 eldest sons in perpetual succession ; the eldest sons 
 of the younger sons of peers, and their eldest sons 
 in like perpetual succession ; esquires created by 
 the king's letters patent, or other investiture, and 
 their eldest sons ; esquires by virtue of their office, 
 as justices of the peace, and others who bear any 
 office of trust under the crown. 2 Steph. Com. 673. 
 A miller or a farmer may be an esquire ; I. R. 2 
 Eq. 235.
 
 ESS ART 
 
 1075 
 
 ESTADIA 
 
 ESSART. In Forest Law. The destruction 
 of the forest and the reduction of it to a state 
 of cultivation. 1 Iloldsw. Hist. E. L. 342. 
 
 ESSE. See In Esse. 
 
 ESSENDI QUIETAM DE T0L0NE0 
 
 (Lat. of being quit of toll). A writ which 
 lay anciently for the citizens or burgee 
 a town which was entitled to exemption 
 from toll, in case toll was demanded of them. 
 Fitzli. N. B. 226, I. 
 
 ESSOIN, ESSOIGN. In Old English Law. 
 An excuse for not appearing in court at the 
 return of the process. Presentation of such 
 excuse. Spelman, Gloss.; 1 Sell. Pr. 4: 
 Dig. Exoine, B 1. Essoin is not now allowed 
 at all in personal actions. 2 Term 1G; 3 Bla. 
 Com. 278, n. # 
 
 ESSOIN DAY. Formerly, the first day in 
 the term was essoin day ; now practically 
 abolished. Dowl. 448; 3 Bla. Com. 278, n. 
 
 ESSOIN ROLL. The roll containing the 
 essoins and the day of adjournment. Rose. 
 R. Act. 1G2 et seq. 
 
 ESTABLISH. This word occurs frequent- 
 ly in the constitution of the United States, 
 and it is there used in different meanings. 
 1. To settle firmly, to fix unalterably : as, 
 to establish justice, which is the avowed ob- 
 ject of the constitution. 2. To make or 
 form : as, to establish an uniform rule of 
 naturalization, and uniform laws on the sub- 
 ject of bankruptcies, — which evidently does 
 not mean that these laws shall be unalter- 
 ably established as justice. 3. To found, to 
 create, to regulate: as, Congress shall have 
 power to establish postroads and post-offices. 
 4. To found, recognize, confirm, or admit : 
 as, Congress shall make no law respecting an 
 establishment of religion. 5. To create, to 
 ratify, or confirm : as, We, the people, etc., 
 do ordain and establish this constitution. 1 
 Story, Const. § 454. 
 
 For decisions upon the scope and meaning of the 
 word, see Ketchum v. City ot Buffalo, 14 N. Y. 356 ; 
 People v. Lowber, 28 Barb. (N. Y.) 65; Wartman v. 
 City of Philadelphia, 33 Pa. 202 ; Com. v. Simonds, 
 11 Gray (Mass.) 306; Smith v. Forrest, 49 N. H. 230; 
 Succession of Weigel, 18 La. Ann. 49. 
 
 The Established Church in England is the 
 Church of England ; so of Wales. » The Irish 
 Church has been disestablished. 
 
 ESTABLISHMENT, ETABLISSEM ENT. 
 
 An ordinance or statute. Especially used of 
 those ordinances or statutes passed in the 
 reign of Edw. I. Co. 2d Inst. 15l> ; Britt c. 
 21. That which is instituted or established 
 for public or private use, as the trading es- 
 tablishments of a government. 
 
 Etablissemcnt is also used to denote the 
 settlement of dower by the husband upon 
 his wife. Britt. c. 102. 
 
 ESTADAL. In Spanish Law. A measure 
 of land of sixteen square varas, or yards. 2 
 White, Ree. 139. 
 
 ESTADIA. In Spanish Law. Called, also, 
 Bohri ttadia. The time for which the party 
 who has chartered a 
 receive the is to pay demnrrag 
 
 account of his delay in the ext cution of the 
 contract. 
 
 ESTATE (Lat status, the condition or cir- 
 cumstances in which tin- owl with 
 reference to his property). The d> 
 quantity, nature, and extent >•£ bat 
 
 which a person has in real property. 
 
 It signifies the quantity of interest which 
 a person has, from absolute ownership down 
 to naked possession ; JacUsou v. Parker, "J 
 Cow. (X. Y.) 81. 
 
 This word has several meanings. 1. In Its most 
 extensive sense, it is applied to signify every thing 
 of which riches or fortune may consist, and Ini 
 personal and real property : hence we say, personal 
 estate, real estate ; 8 Ves. 504 ; Jackson v. Robins, 
 16 Johns. (N. Y.) 587; Deering v. Tucker, t 
 284; Bates v. Sparrell, 10 Mass. 323; Archer v. 
 Deneale, 1 Pet. (U. S.) 5S5, 7 L. Ed. 272; Donovan's 
 Lessee v. Donovan, 4 Harr. (Del.) 177; Andrews 
 v. Brumfleld, 32 Miss. 107 ; Blewer v. Brightman, 4 
 McCord (S. C.) 60 ; Den v. Snitcher, 14 N. J. L. 53. 
 2. In its more limited sense, the word estate is ap- 
 plied to lands. It is so applied in two senses. The 
 first describes or points out the land itself, without 
 ascertaining the extent or nature of the interest 
 therein: as, "my estate at A." Godfrey v. Hum- 
 phrey, 18 Pick. (Mass.) 537, 29 Am. Dec. 621. The 
 second, which is the proper and technical meaning 
 of estate, is the degree, quantity, nature, and extent 
 of interest which one has In real property: as, an 
 estate in fee, whether the same be a free-simple 
 or fee-tall, or, an estate for life or for years, etc. 
 Coke says, Estate signifies such inheritance, free- 
 hold, term of years, tenancy by statute merchant, 
 staple, eligit, or the like, as any man hath in lands 
 or tenements, etc. Co. Litt. §§ 345, 650 a. See 
 Land Off. Titles In Penna. 165. Estate does not 
 include rights in action ; Pippin v. Ellison, 34 N. C. 
 61, 55 Am. Dec. 403 ; Mclntyre v. Ingraharn, "■'■ 
 25; In re Sibbald's Estate, 18 Pa. -W. Hut as the 
 word is commonly used in the settlement of estates, 
 it does include the debts as well as the assets of 
 a bankrupt or decedent, all his obligations and re- 
 sources being regarded as one entirety. See Davis's 
 Heirs v. Elkins, 9 La. 135. Also the status or condi- 
 tion in life of a person ; State v. Bishop, 15 Me. 
 122. See Estates of the Realm. 
 
 ESTATE AT WILL. An estate in lands 
 which the tenant has, by entry made there- 
 on under a demise, to hold during the joint 
 wills of the parties to the same. Co. Lift. 55 
 a; Tud. L. Cas. R. P. 10; 2 Bla. Coin. 145 : 
 4 Kent 110. Estates properly^ at will are of 
 very infrequent occurrence, being generally 
 turned into estates for years or from year 
 to year by decisions of the courts or by stat- 
 ute; 4 Kent 115; Tud. L, Cas. R. P. 14; 
 Lesley v. Randolph, 4 Rawle (Pa.) 123; 1 
 Term 159. 
 
 They may be created by express words or 
 may arise by implication of law. Where 
 created by express contract, the writing nec- 
 essarily so indicates, ami reserves the right 
 of termination to either party, as where the 
 lease provides that the tenant shall occupy 
 the premises so long as agreeable to both 
 parties; 4 Taunt. 128; Say v. Stoddard. 127 
 Ohio St. 4TS. They arise by implication of 
 law where no definite time is stated in the
 
 ESTATE AT WILL 
 
 1076 
 
 ESTATE FOR LIFE 
 
 contract, or where the tenant enters into 
 possession under an agreement to execute a 
 contract for a specific term and he subse- 
 quently refuses to do so, or where one en- 
 ters under a void lease, or where he holds 
 over pending negotiations for a new lease ; 
 Thompson v. Baxter, 107 Minn. 122,. 119 N. 
 W. 797, 21 L. R. A. (N. S.) 575. The chief 
 characteristics of this form of tenancy are 
 (1) uncertainty respecting the term and (2) 
 the right of either party to terminate it by 
 proper notice. See Tenancy at Sufferance. 
 
 ESTATE BY ELEGIT. See Elegit. 
 
 ESTATE BY STATUTE MERCHANT. See 
 Statute Merchant. 
 
 ESTATE BY STATUTE STAPLE. See 
 
 Statute Staple. 
 
 . ESTATE BY THE CURTESY. That es- 
 tate to which a husband is entitled upon the 
 death of his wife in the lands or tenements 
 of which she was seised in possession, in 
 fee-simple, or in fee-tail during their cover- 
 ture; provided they have had lawful issue 
 born alive and possibly capable of inheriting 
 her estate. Co. Litt. 3,0 a; 2 Bla. Com. 120; 
 4 Kent 29; Leach v. Leach, 21 Hun (N. Y.) 
 381; Crumley v. Deake, 8 Baxt. (Tenn.) 301; 
 Carter v. Dale, 3 Lea. (Tenn.) 710, 31 Am. 
 Rep. 000 ; McKee v. Cattle, Mo. App. 410 ; 
 Tremmel v. Kleiboldt, Mo. App. 549 ; [1892] 
 2 Ch. 330. See Curtesy. 
 
 ESTATE DUTY. A duty imposed in Eng- 
 land (act of 1894) superseding probate duty, 
 taxing not the interest to which some person 
 succeeds on a death, but the interest which 
 ceased by reason of the death. Hansen, 
 Death Duties 03. It is leviable on property 
 which was left untouched by probate duty, 
 such as real estate, yet it is in substance of 
 the same nature as the old probate duty ; id. 
 See Tax. 
 
 ESTATE FOR LIFE. A freehold estate, 
 not of inheritance, but which is held by the 
 tenant for his own life or the life or lives 
 of one or more other persons, or for an in- 
 definite period, which may endure for the 
 life or lives of persons in being, and not be- 
 yond the period of a life. 1 Washb. R. P. 
 88; Co. Litt. 42 a; Bract lib. 4, c. 28, § 207; 
 Hurd v. Cushing, 7 Pick. (Mass.) 109; Chal. 
 R. P. 89. When the measure of duration is 
 the tenant's own life, it is called simply an 
 estate "for life ;" when the measure of dura- 
 tion is the life of another person, it is called 
 an estate "per (or pur) autre vie;" 2 Bla. 
 Com. 120; Co. Litt. 41 &; 4 Kent 23, 24. 
 
 Estates for life may be created by act of 
 law or by act of the parties : in the former 
 case they are called legal, in the latter con- 
 ventional. The legal life estates are estates- 
 tail after possibility of issue extinct, estates 
 by dower, estates by curtesy, jointures; 
 Mitch. R. P. 118, 133 ; Eldridge v. Preble, 34 
 Me. 151; Dejarnatte v. Allen, 5 Gratt. (Va.) 
 
 499; Fay v. Fay, 1 Cush. (Mass.) 95; Irwin 
 v. Covode, 24 Pa. 102 ; 3 E. L. & Eq. R. 345 ; 
 Miller v. Williamson, 5 Md. 219; Gourley v. 
 Woodbury, 51 Vt. 37; Brooks" v. Brooks, 12 
 S. C. 422 ; Slemmer v. Crampton, 50 la. 302 ; 
 Rountree v. Talbot; 89 111. 210; Noe v. Mil- 
 ler's Ex'rs, 31 N. J. Eq. 234. A life estate 
 may be created by implication ; Nicholson v. 
 Drennan, 35 S. C. 333, 14 S. E. 719. 
 
 A right given by a will to occupy, at a 
 specified rent, certain premises as long as the 
 devisee "may desire to occupy the same as 
 a drug store," was held to amount to an es- 
 tate for life ; and to the same effect Warner 
 v. Tanner, 38 Ohio St, 118 ; Jones v. Mason, 
 5 Rand. (Va.) 584, 10 Am. Dec. 701; as was 
 a grant "so long as the waters of the Dela- 
 ware shall run" ; Foster v. Joice, 3 Wash. 
 C. C. 498, Fed. Cas. No. 4,974; and a lease 
 at a specified monthly rent of certain prem- 
 ises whilst the defendant continued to wish 
 to live in a certain city ; Thompson v. Bax- 
 ter, 107 Minn. 122, 119 N. W. 797, 21 L. R. 
 A. (N. S.) 575. A devise of the use and im- 
 provement of the testator's real estate, so 
 long as the devisee should choose personally 
 to occupy and improve any portion of the 
 estate, was held to create a life estate, 
 though terminable by the tenant ceasing to 
 occupy ; Wilmarth v. Bridges, 113 Mass. 407. 
 
 The chief incidents of life estates are a 
 right to take reasonable estovers, and free- 
 dom from injury by a sudden termination 
 or disturbance of the estate; Smith v. Jew- 
 ett, 40 N. H. 532. A tenant for life may not 
 operate for oil or gas, or make an oil or gas 
 lease, unless operations for oil or gas were 
 commenced before the life estate accrued ; 
 Marshall v. Mellon, 179 Pa. 371, 30 Atl. 201, 
 35 L. R. A. 810, 57 Am. St. Rep. 001; nor 
 can the owner of such an estate maintain 
 an action of partition against the owners of 
 the estate in remainder; Love v. Blauw, 01 
 Kan. 490, 59 Pac, 1059, 48 L. R. A. 257, 78 
 Am. St. Rep. 334. Under-tenants have the 
 same privileges as the original tenant ; and 
 acts of the original tenant which would de- 
 stroy his own claim to these privileges will 
 not affect them ; see Neel v. Neel, 19 Pa. 323. 
 
 Their right, however, does not of course, 
 as against the superior lord, extend beyond 
 the life of. the original tenant; 2 Bla. Com. 
 122; 1 Rolle, Abr. 727; Co. Litt. 41 o. 
 
 ESTATE FOR YEARS. An interest in 
 lands by virtue of a contract for the posses- 
 sion of them for a definite and limited period 
 of time. 2 Bla. Com. 140; 2 Crabb, R. P. | 
 1207; Bac. Abr. Leases; Wms. R. P. 195. 
 Such estates are frequently called terms. 
 See Term. The length of time for which 
 the estate is to endure is of no importance 
 in ascertaining its character, unless other- 
 wise declared by statute; Chapman v. Gray, 
 15 Mass. 439 ; Brewster v. Hill, 1 N. H. 350 ; 
 Diller v. Roberts, 13 S. & R. (Pa.) 00, 15 Am. 
 Dec. 578; Brown's Adm'rs v. Bragg, 22 Ind. 
 122; 4 Kent 93.
 
 ESTATE FROM YEAR TO YEAR 1077 ESTATE IN EXPECTANCY 
 
 ESTATE FROM YEAR TO YEAR. It is 
 
 an example of an estate for years. It is of 
 later origin and is not found in Littleton 
 (see § 381). It exists in cases where the 
 parties stipulate for it, and also where the 
 parties l>y their conduct have placed them- 
 selves in the relation of landlord and ten- 
 ant without adopting any other term. If a 
 tenanl has hoen allowed to hold over after 
 the expiration of his term In such a way as 
 to preclude the possibility of his becoming 
 a tenant on sufferance, it is a tenancy from 
 year to year. Jenks, Mod. Land Law 88. 
 
 A tenancy from year to year exists where 
 both landlord and tenant are entitled to no- 
 tice before the tenancy can be terminated by 
 either. At common law such notice must he 
 given at least one-half year before the ex- 
 piration of the current year. 'The tenant 
 must occupy for a certain number of com- 
 plete years; Odger, C. L. 869. A tenancy 
 from year to year in England lasts as long 
 only as both parties please ; it is terminable 
 by either at the end of any year on a half 
 year's notice; 7 Q. B. 958. 
 
 It was originally a development of a ten- 
 ancy at will, by which the tenancy was 
 terminable only at the time of the year at 
 which it began, and on notice. 
 
 ESTATE IN COMMON. An estate held in 
 joint possession by two or more persons at 
 the same time by several and distinct titles. 
 
 1 Washb. R. P. 415; 2 Bla. Com. 191; 1 
 Pres. Est. 139. This estate has the single 
 unity of possession, and may he of real or 
 personal property : Harvey v. Cherry, 76 N. 
 Y. 4oG; Jones v. Cohen, 82 N. C. 75; With- 
 row v. Biggerstaff, 82 N. C. 82; Stookey v. 
 Carter, 92 111. 129; Kean v. Connelly, 25 
 Minn. 222, 33 Am. Rep. 458 ; Goell v. Morse, 
 12b" Mass. 4SO; Bnnis v. Hutchinson, 30 N. J. 
 Eq. 110 ; Butler v. Roys, 25 Mich. 53, 12 Am. 
 Rep. 2 IS. 
 
 Where one dies intestate, the joint owner- 
 ship of bis property by his children is gen- 
 erally that of tenants in common; Fenton v. 
 Miller, 94 Mich. 204, 53 N. W. 957. 
 
 ESTATE IN COPARCENARY. An estate 
 which several persons hold as one heir, 
 whether male or female. In the latter case, 
 it arises at common law, when an estate de- 
 scends to two or more females ; in the for- 
 mer, when an estate descends to all the males 
 in equal degree by particular custom. This 
 estate has the three unities of time, title, and 
 possession; but the interests of the copar- 
 ceners may be unequal. 1 Washb. R. P. 414; 
 
 2 Bla. Com. 1S8 ; 4 Kent 306 ; Flynn v. Herye, 
 4 Mo. App. 360. See Coparcenary, Estates 
 in. 
 
 ESTATE IN DOWER. See Doweb. 
 
 ESTATE IN EXPECTANCY. An estate 
 giving a present or vested contingent right of 
 future enjoyment. One in which the right to 
 pernancy of the profits is postponed to some 
 
 future period. Such are estates in remainder 
 and reversion. Lawrence v. Bayard, 7 Paige, 
 
 Ch. (N. Y.) K», 7''.; Dnderhill v. R. Co., 20 
 Barb. 455. See Exi-. 
 
 ESTATE IN FEE-SIMPLE. See Fee -Sim- 
 ple. 
 
 ESTATE IN FEE-TAIL. E UL. 
 
 ESTATE IN JOINT TENANCY. See Joint 
 Tenancy. 
 
 ESTATE IN POSSESSION. An e 
 where the tenant is in actual pernani 
 receipt of the rents and other advai 
 arising therefrom. 2 Crabb, B. P. 
 Bla. Com. 163. Sec Campat] v. Campan, 19 
 Mich. 116; Valle v. Clemens, 18 Mo. 486; 
 Expectancy. 
 
 ESTATE IN REMAINDER. See Re- 
 main DEB. 
 
 ESTATE IN REVERSION. See Rever- 
 sion. 
 
 ESTATE IN SEVERALTY. See Several- 
 ty, Estate in. 
 
 ESTATE IN VADI0. See Mortgage. 
 
 ESTATE OF FREEHOLD or FRANK- 
 TENEMENT. Any estate of Inheritance, or 
 for life, in either a corporeal or incorporeal 
 hereditament, existing in or arising from 
 real property of free tenure. 2 Bla. Com. 104. 
 It thus includes all estates but copyhold and 
 leasehold, the former of which has never been 
 known in this country. Freehold in deed Is 
 the real possession of land or tenements in 
 fee, fee-tail, or for life. Freehold in hur is 
 the right to such tenements before entry. 
 The term has also been applied to those offic- 
 es which a man holds in fee or for life. Mozl. 
 & W. Diet, i 1 Washb. R. P. 71, 637. See 
 Gage v. Scales, 100 111. 221; State v. Lap- 
 land, 75 N. C. 12, L. R. 11 Eq. 454; Lie 
 Tenementum. 
 
 ESTATE OF INHERITANCE. An estate 
 which may descend to heirs. 1 Washb. K. 1'. 
 51 ; 1 Steph. Com. 218. 
 
 All freehold estates are estates of inherit- 
 ance, except estates for life. Crabb, R. I'. 
 § 945. 
 
 ESTATE PUR AUTRE VIE. An estate for 
 the life of another. It arises most frequently 
 when a tenant for his own life conveys his 
 estate to a third person. lie can only convey 
 what he has, and bis grantee takes an estate 
 during the life of the grantor. If the tenant 
 died during the life of the grantor (who was 
 called the Cestui '!"<' '"'Vi. :'t common law the 
 residue of the estate went to the first person 
 win. took it. termed a general occupant, if 
 the original gift was to the tenant and his 
 heirs, the heir took it as special occupant. 
 By statute in England, if there is no special 
 occupant, the estate goes to the executors as 
 personalty, if not disposed of by will. This 
 rule has been adopted in most of the United 
 States, except a few, where it still descends
 
 ESTATE PUR AUTRE VIE 
 
 1078 
 
 ESTOPPEL 
 
 as personalty; 1 Washb. R. P. 88 ; 2 Bla. 
 Com. 120. 
 
 Where two estates come to one person, so 
 that if in tbe same right they would merge, 
 if one of them be in autre droit, there will be 
 no merger. 2 Bla. Com. 177, but see Sharsw. 
 note 17. 
 
 ESTATE TAIL. See Fee -Tail. 
 
 ESTATE UPON CONDITION. See Condi- 
 tion. 
 
 v ESTATES OF THE REALM. The lords 
 spiritual, the lords temporal, and the com- 
 mons of Great Britain. 1 Bla. Com. 153 ; 3 
 Hallam, ch. 6, pi. 3. Sometimes called the 
 three estates. 
 
 ESTER IN JUDGMENT. To appear be- 
 fore a tribunal either as plaintiff or defend- 
 ant. Kelh. Norm. L. D. 
 
 ESTIMATE. A word used to express the 
 mind or judgment of the speaker or writer 
 On the particular subject under consideration. 
 It implies a computation or calculation. 
 People v. Clark, 37 Hun (N. Y.) 203. 
 
 ESTOPPEL. The preclusion of a person 
 from asserting a fact, by previous conduct in- 
 consistent therewith, on his own part or the 
 part of those under whom he claims, or by 
 an adjudication upon his rights which he can- 
 not be allowed to call in question. 
 
 A preclusion, in law, which* prevents a man 
 from alleging or denying a fact, in conse- 
 quence of his own previous act, allegation, 
 or denial of a contrary tenor. Steph. PI. 239. 
 
 A plea which neither admits nor denies 
 the facts alleged by the plaintiff, but denies 
 his right to allege them. Gould, PI. c. 2, § 39. 
 
 A special plea in bar, which happens where 
 a man has done some act or executed some 
 deed which precludes him from averring any- 
 thing to the contrary. 3 Bla. Com. 308. 
 
 Where a fact has been admitted or asserted for 
 the purpose of influencing the conduct or deriving 
 a benefit from another so that it cannot be denied 
 without a breach of good faith, the law enforces the 
 rule of good morals as a rule of policy, and pre- 
 cludes the party from repudiating his representa- 
 tions or denying the truth of his admissions ; Doug- 
 lass v. Scott, 5 Ohio 199 ; Rawle, Cov. 407. 
 
 This doctrine of law gives rise to a kind of plead- 
 ing that is neither by way of traverse, nor confes- 
 sion and avoidance, viz.: a pleading that, waiving 
 any question of fact, relies merely on the estoppel, 
 and, after stating the previous act, allegation, or 
 denial of the opposite party, prays judgment if he 
 shall be received or admitted to aver contrary to 
 what he before did or said. This pleading is called 
 a pleading by way of estoppel. Steph. PL 240 ; 
 Blackington v. Johnson, 126 Mass. 21 ; Andrews v. 
 Ins. Co., 18 Hun (N. Y.) 163 ; Cross v. Levy, 57 Miss. 
 634 ; Byrne v. Bank, 31 La. Ann. 81 ; Stephenson 
 v. Walker, 8 Baxt. (Tenn.) 289 ; Hull v. Johnston, 
 90 III. 604; Walker v. Baxter, 6 Wash. 244, 33 Pac. 
 426. 
 
 Formerly the questions regarding estoppel arose 
 almost entirely in relation to transfers of real prop- 
 erty, and the rules in regard to one kind of estoppel 
 were quite fully elaborated. In more modern time 
 the principle has come to be applied to all cases 
 where one by words or conduct wilfully causes an- 
 other to believe in the existence of a certain state of 
 things, and induces him to act on that belief or 
 
 to alter his own previous position ; 2 Exeh. 653 ; 
 Den v. Baldwin, 21 N. J. L. 403 ; Titus v. Morse, 40 
 Me. 348, 63 Am. Dec. 665. See, as to the reason and 
 propriety of the doctrine, Co. Litt. 352 a; Pelletreau 
 V. Jackson, 11 Wend. (N. Y.) 117 ; Jones v. Sasser, 
 18 N. C. 464; Blake v. Tucker, 12 Vt. 44. 
 
 "The correct view of estoppel is that taken in a 
 recent work (Bigelow, Est.). 'Certain admissions,' 
 it is there said, 'are indisputable, and estoppel is the 
 agency of the law by which evidence to controvert 
 their truth is excluded.' In other words, when an 
 act is done, or a statement made by a party the 
 truth or efficacy of which it would be a fraud on his 
 part to controvert or impair, the character of an 
 estoppel will be given to what would otherwise be 
 a mere matter of evidence. The law of estoppel, 
 therefore, is a branch of the law of evidence, it has 
 become a part of the jurisdiction of chancery, sim- 
 ply because in equity alone, or rather by equitable 
 construction alone, has that full effect been given to 
 this species of evidence which is necessary to the 
 due administration of justice." Bisph. Eq. § 280. 
 See Tiedm. Eq. Jur. 106. 
 
 "Estoppel is only a rule of evidence and you can- 
 not found an action upon estoppel. Estoppel is only 
 important as being one step in the progress towards 
 relief on the hypothesis that the defendant is es- 
 topped from denying the truth of something he has 
 said." (1891) 3 Ch. 82, 105, per Bowen, L. J. The 
 doctrine of estoppel was applied to a case of the 
 transfer of shares upon a forged order; L. R. 3 
 Q. B. 584. 
 
 Where there is an attempt to apply the 
 doctrine of estoppel, one essential in such a 
 case is that the party in whose favor it is 
 invoked must himself act in good faith; 
 Vaughn v. Hixon, 50 Kan. 773, 32 Pac. 358; 
 and it is of the essence of estoppels that they 
 must be mutual and certain to every intent ; 
 Sutton v. Dameron, 100 Mo. 141, 13 S. W. 
 497 ; Sullivan v. R. Co., 128 Ala. 97, 30 South. 
 528; and they cannot rest on argument or 
 inference; id. They arise out of matters of 
 fact, not of law; Snyder v. Studebaker, 19 
 Ind. 462, 81 Am. Dec. 415. 
 
 Estoppels are of three kinds. 1. By deed. 
 2. By matter of record. 3. By matter in 
 pais, which last are also termed equitable es- 
 toppels. 
 
 By Deed. Such as arises from the provi- 
 sions of a deed. It is a general rule that a 
 party to a deed is estopped to deny any thing 
 stated therein which has operated upon the 
 other party: as, the inducement to accept 
 and act under such deed ; Stow v. Wyse, 7 
 Conn. 214, 18 Am. Dec. 99 ; Green v. Clark, 
 13 Vt. 158; Douglass v. Scott, 5 Ohio 199; 
 Bennett v. Conant, 10 Cush. (Mass.) 163; 
 Reinhard v. Min. Co., 107 Mo. 616, 18 S. W. 
 17, 28 Am. St. Rep. 441 ; Carson v. Cochran, 
 52 Minn. 67, 53 N. W. 1130 ; Craig v. Reeder, 
 3 McCord (S. C.) 411 ;■ including a deed made 
 with covenant of warranty, which estops 
 even as to a subsequently acquired title ; 
 Jackson v. Matsdorf, 11 Johns. (N. Y.) 91, 6 
 Am. Dec. 355 ; Baxter v. Bradbury, 20 Me. 
 260, 37 Am. Dec. 49 ; Blake v. Tucker, 12 Vt. 
 39 ; Jenkins v. Collard, 145 U. S. 546, 12 Sup. 
 Ct. 868, 36 L. Ed. 812; Moore v. Crawford, 
 130 U. S. 122, 9 Sup. Ct. 447, 32 L. Ed. 878 ; 
 Ayer v. Brick Co., 157 Mass. 57, 31 N. E. 717 ; 
 Woods v. Bonner, 89 Tenn. 411, 18 S. W. 67; 
 but, while this is the general rule, there Is
 
 ESTOPPEL 
 
 1079 
 
 ESTOPPEL. 
 
 no estoppel where the deed is a release with 
 a covenant of restricted warranty merely of 
 the title granted; Comstock v. Smith, 13 
 Pick. (Mass.) 11G, 23 Am. Dec. 670; nor will 
 a deed of release without covenant of war- 
 ranty estop the grantor from contesting the 
 seisin of the grantor and showing seisin in 
 himself by an older and better title; I Iain v. 
 Ham, 14 Me. 351 ; so a conveyance of all of 
 the grantor's right, title and interest does 
 not convey more than he has at the time and 
 the covenants apply only to the grant and do 
 not enlarge it; Coe v. Persons Unknown, 43 
 Me. 432. A grantor who covenants against 
 incumbrances without reservation is estopped 
 to sue for obstruction to a right of way 
 across the granted premises ; De Rochemont 
 v. R. R., 64 N. H. 500, 15 Atl. 131. A grantor 
 whose deed recites or ailirms his seisin of the 
 estate granted, either expressly or by im- 
 plication, is estopped to deny that such es- 
 tate passed, though there is no warranty; 
 Reynolds v. Cook, S3 Va. S17, 3 S. E. 710, 5 
 Am. St Rep. 317 ; but while he may not show 
 that he had no such estate as the deed pur- 
 ported to convey, he is not estopped to show 
 a subsequently acquired, independent title 
 consistent with the deed; Cuthrell v. Haw- 
 kins, 98 N. C. 203, 3 S. E. 672; and a con- 
 veyance with warranty by one who had no 
 title, but who afterwards acquired title as 
 trustee, did not operate by estoppel so as to 
 make the latter enure to the former grantee, 
 since an estoppel arises only when the new 
 title is taken in the same right; Dewhurst 
 v. Wright, 29 Fla. 229, 10 South. 6S2. The 
 doctrine of estoppel by deed has been applied 
 to one who, having as agent leased land for 
 a term of years, was not permitted to set 
 up want of authority to make the lease; Lee 
 v. Lee, 83 la. 565, 50 Nv W. 33 ; to a vendor 
 who, having only a certificate of purchase at 
 a tax sale, and having given bond to make a 
 quitclaim deed on payment of the purchase 
 money, was precluded from acquiring any 
 title by virtue of the tax sale, as was also 
 one claiming from him by descent or as a 
 purchaser with notice; Jernigan v. Flowers, 
 94 Ala. SOS, 10 South. 437; to a tenant for 
 life who, having recognized the right of the 
 remainderman in a bequest of personal prop- 
 erty and executed a deed of trust therefor, 
 could not afterwards deny the right ; Welsch 
 v. Bank, 94 111. 191; to one who attempts to 
 convey title to the property as executor or 
 administrator ; Millican v. McNeill, 102 Tex. 
 189, 114 S. W. 106, 132 Am. St. Rep. S63, 20 
 Ann. Cas. 74, 21 L. R. A. (N. S.) 60, and note 
 in which are collected many cases and the 
 conclusion reached that the question is to be 
 determined by the general principles of the 
 law of estoppel and not by any considera- 
 tions peculiar to this class of cases. 
 
 There was held to be no estoppel against 
 the setting up of a subsequently acquired ti- 
 tle by one who quitclaimed lands in which at 
 
 that time he had no interest; Jackson ?. 
 Peek, I Wend. (N. Y.) 300; where, after the 
 purchase of a mortgage, the premises were 
 conveyed subject to it, and the deed had con- 
 tain) 'I a covenant to pay it, the grantee was 
 permitted to insist, as against the purchaser 
 of the mortgage, that he was not liable; Real 
 Estate Trust Co. v. Balch, 45 N. Y. Super. 
 Ct 528, in which the court held that the case 
 presented no one of tin- . elements 
 
 of an estoppel, and critically examined the 
 .New York cases on the question of liability 
 under BUCh covenants. A partition deed be- 
 tween tenants in common and assignment 
 thereunder does not estop one of the parties 
 from setting up an after-acquired title to 
 land so assigned ; Doaue v. \Yillcutt, 5 Gray 
 (Mass.) 328, (Hi Am. Dec. 369. 
 
 "Where under the law there is an entire 
 lack of power to do the act in question, it 
 cannot be made good by estoppel. Put if the 
 power to do the act existed, and there was a 
 way in which it could be lawfully exercised, 
 and it purports to have been done in a law- 
 ful way, a person who has induced another 
 to act upon the assumption that it was in 
 fact done, may be estopped from questioning 
 its validity." Mut. Life Ins. Co. v. Corey, 
 135 N. Y. 326, 334, 31 N. E. 1095. 
 
 A corporation accepting conveyance of a 
 water works plant by deed describing cer- 
 tain mortgages thereon, and expressly de- 
 claring that the conveyance was made sub- 
 ject thereto, is thereby estopped from ques- 
 tioning the validity of the mortgages ; Ameri- 
 can Waterworks Co. of Illinois v. Loan & 
 Trust Co., 73 Fed. 956, 20 C. C. A. 133. So 
 also a city taking property by eminent do- 
 main subject to liens is estopped to deny 
 their validity: City Safe Deposit & Agency 
 Co. v. City of Omaha, 79 Neb. 416, 112 N. W. 
 59S, 23 L. R. A. (N. S.) 72. And a corpora- 
 tion may be estopped to deny the execution 
 of a mortgage when the directors assented, 
 but, by reason of the absence of some, there 
 was no formal action of the board directing 
 the signing and sealing by the officers; Ne- 
 vada Nickel Syndicate v. Nickel Co., 96 Fed. 
 133. 
 
 To create an estoppel, the deed must be 
 good and valid in its form and execution ; 
 2 Washb. R. P. 41; Alt v. Banholzer, ::'.» 
 Minn. 511, 10 N. W. 830, 12 Am. St. Rep. 683 : 
 and must convey no title upon which the 
 warranty can operate in case of a covenant; 
 Jackson v. Hoffman, 9 Cow. (N. Y.) 271 ; 2 
 Pres. Abs. 216. 
 
 Estoppels affect only parties and privies 
 in blood, law. or estate; 6 Ping. X. < '. T'.» : 
 Corbett v. Norcross, 35 N. II. '.•'.>; Patterson's 
 Lessee v. Pease, 5 Ohio 190; Phelps v. Blount, 
 13 N. C. 177; Wart v. Willard. 13 X. II. 389; 
 Calhoun v. Pierson, 44 La. Ann. 5S4, 10 South. 
 8S0; Campbell v. Carruth, 32 Fla. 261. 13 
 South. 432. See Knight v. Thayer, 125 Mass. 
 25; Stockstill v. Bart, 47 Fed. 231. Estop-
 
 ESTOPPEL 
 
 10S0 
 
 .ESTOPPEL 
 
 pels, It is said, must be reciprocal ; Co. Litt. 
 352 a; Furgeson v. Jones, 17 Or. 204, 20 Pac. 
 842, 3 L. R. A. 620, 11 Am. St. Rep. 808. But 
 see Winlock v. Hardy, 4 Litt. (Ky.) 272; 
 Small v. Procter, 15 Mass. 499; Crittenden v. 
 Woodruff, 11 Ark. S2 ; 2 Sm. L. C. 664. And 
 see 2 Washb. R. P. 458. 
 
 The rule requiring mutuality is subject to 
 exceptions which are discussed at large by 
 Van Devanter, J., in Portland Gold Mining 
 Co. v. Stratton's Independence, 158 Fed. 63, 
 85 C. C. A. 393, 16 L. R. A. (N. S.) 677, and 
 note. Persons claiming under a common 
 source of title are mutually estopped to deny 
 its validity; Gilliam v. Bird, 30 N. C. 280, 
 49 Am. Dec. 379, and note in which the cases 
 are collected. 
 
 An estoppel relating to an interest in land 
 passes with the land, and an estoppel by 
 deed creates what in law is termed a title by 
 estoppel ; Mutual Life Ins. Co. v. Corey, 135 
 N. Y. 326, 335, 31 N. E. 1095. 
 
 A grantor is not estopped by recitals in 
 his deed of payment of consideration, from 
 suing for the unpaid purchase money ; Smith 
 v. Arthur, 110 N. C. 400, 15 S. E. 197; nor 
 are recitals an estoppel when the deed con- 
 taining them is not operative ; Wallace's Les- 
 see v. Miner, 6 Ohio 366. But one who de- 
 fended his possession on the sole ground that 
 one of the grantors in the series of deeds had 
 no title was bound by the recitals of the deed 
 to the same extent as if he were privy to the 
 grantor; Kinsman's Lessee v. Loomis, 11 
 Ohio 475 ; and a ward after coming of age 
 was held bound by the recitals of a deed 
 made by her guardian 1 ; Esterbrook v. Savage, 
 21 Hun (N. T.) 145. A recital in a bond that 
 it was under seal estops the obligor from de- 
 nying that it was so executed ; Metropolitan 
 Life Ins. Co. v. Bender, 124 N. Y. 47, 26 N. E. 
 345, 11 L. R. A. 70S. A grantee cannot enter 
 and hold under a deed and at the same time 
 repudiate the title thereby conveyed ; Kelso 
 v. Stigar, 75 Md. 376, 24 Atl. IS. See White 
 v. R. Co., 156 Mass. 181, 30 N. E. 612 ; Raby 
 v. Reeves, 112 N. C. 6S8, 16 S. E. 760 ; Ogles- 
 by v. Foley, 46 111. App. 119; Coward v. 
 Clanton, 79 Cal. 23, 21 Pac. 359. 
 
 The doctrine of estoppel by deed did not 
 at common law apply to a married woman, 
 except as to her equitable separate estate; 
 Big. Est. 371, citing the cases; Bank of 
 America v. Banks, 101 U. S. 240, 25 L. Ed. 
 S50 ; Jones v. Reese, 65 Ala. 134 ; but under 
 the statutes enabling married women to deal 
 with their own property, her liability to be 
 estopped is doubtless coterminous with her 
 capacity to contract; Neal v. Bleckley, 36 
 S. C. 468, 478, 15 S. E. 733; Appeal of Pow- 
 ell, 98 Pa. 403, 413; Knight v. Thayer, 125 
 Mass. 25. N^>r is an infant estopped by his 
 deed unless ratified after majority; Cook v. 
 Toumbs, 36 Miss. 685; Houston v. Turk, 7 
 Yerg. (Tenn.) 13. 
 
 It has been held that a state may be es- 
 topped by deed; Com. v. Andre's Heirs, 3 
 
 Pick. (Mass.) 224; Bartlett Land & Lumber 
 Co. v. Saunders, 103 U. S. 316, 26 L. Ed. 546 ; 
 State v. Ober, 34 La. Ann. 359; Penrose v. 
 Griffith, 4 Binn. (Pa.) 231; and this is said 
 to be "perhaps the better opinion" ; Big. Est. 
 371 ; but there are expressions to the con- 
 trary, though generally qualified so as not to 
 conflict with the doctrine that the state may 
 be estopped by legislative action; State v. 
 Williams, 94 N. C. 891; Alexander v. State, 
 56 Ga. 478; People v. Brown, 67 111. 435; 
 but not by official laches or error; State v. 
 Brewer, 64 Ala. 287 ; U. S. v. Kirkpatrick, 9 
 Wheat. (U. S.) 735, 6 L. Ed. 199 ; The Floyd 
 Acceptances, 7 Wall. (U. S.) 676, 19 L. Ed. 
 169. 
 
 By Matter of Record. Such as arises 
 from the adjudication of a competent court. 
 Judgments of courts of record, and decrees 
 and other final determinations of ecclesias- 
 tical, maritime, and military courts, work es- 
 toppels ; 2 B. & Aid. 362 ; Buck v. Collins, 69 
 Me. 445; Bradner v. Howard, 75 N. Y. 417; 
 Adams v. Adams, 25 Minn. 72 ; Butterfield v. 
 Smith, 101 U. S. 570, 25 L. Ed. 86S; Henning 
 v. Warner, 109 N. C. 406, 14 S. E. 317 ; Den- 
 ver City Irr. & Water Co. v. Middaugh, 12 
 Colo. 434, 21 Pac. 565, 13 Am. St. Rep. 234. 
 Admissions in pleadings, either express or 
 implied, cannot afterwards be controverted 
 in a suit between the same parties; Com. 
 Dig. Estoppel A 1. It is of the essence of 
 estoppel by judgment that it is certain that 
 the precise fact was determined by the for- 
 mer judgment; De Sollar v. Hanscome, 158 
 U. S. 216, 15 Sup. Ct. 816, 39 D. Ed. 956; 
 Nashua & L. R. Corp. v. R., 164 Mass. 226, 41 
 N. E. 268, 49 Am. St. Rep. 454 ; Empire State 
 Nail Co. v. Button Co., 74 Fed. S68, 21 C. C. 
 A. 152. See Res Judicata, where the subject 
 of estoppel by matter of record is treated. 
 
 Estoppels by deed and by record are com- 
 mon-law doctrines. 
 
 By Matter in Pais. Such as arises from 
 the acts and declarations of a person by 
 which he designedly induces another to alter 
 his position injuriously to himself; Brown 
 v. Wheeler, 17 Conn. 345, 44 Am. Dec. 550; 
 Kinney v. Farnsworth, 17 Conn. 355 ; Frost 
 v. Ins. Co., 5 Denio (N. Y.) 154, 49 Am. Dec. 
 234 ; Ensel v. Levy, 46 Ohio St. 255, 19 N. E. 
 597 ; Tousley v. Board of Education, 39 Minn. 
 419, 40 N. W. 509; Pennypacker v. Latimer, 
 10 Idaho 618, 81 Pac. 55; Harrison National 
 Bank of Cadiz, Ohio, v. Austin, 65 Neb. 632, 
 91 N. W. 540, 59 L. R. A. 294, 101 Am. St. 
 Rep. 639. See Humphreys v. Finch, 97 N. C. 
 303, 1 S. E. S70, 2 Am. St. Rep. 293 ; Joyce v. 
 Ry. Co., 43 111. App. 157 ; Vaile v. City of In- 
 dependence, 116 Mo. 333, 22 S. W. 695 ; West- 
 brook v. Guderian, 3 Tex. Civ. App. 406, 22 
 S. W. 59. Equitable estoppel, or estoppel by 
 conduct, is said to have its foundation in 
 fraud, considered in its most general sense; 
 Bisph. Eq. § 282. It is said (Bigelow, Estop. 
 437) that the following elements must be 
 present in order to constitute an estoppel by
 
 ESTOPPEL, 
 
 1081 
 
 ESTOPPEL 
 
 conduct: 1. There must have been a repre- 
 sentation or concealment of material facts. 
 2. The representation must have been made 
 with knowledge of the facts. 3. The party 
 to whom it was made must have been ig- 
 norant of the truth of the matter. 4. It 
 must have been made with the intention that 
 the other party would act upon it. 5. The 
 other party must have been induced to act 
 upon it. Ergenbright v. Henderson, 72 Kan. 
 29, 82 Pae. 524; Blodgett v. Perry, 97 Mo. 
 263, 10 S. W. 891, 10 Am. St Rep. 307. See 
 Bynuin v. Preston, 69 Tex. 2S7, 6 S. W. 428, 
 
 5 Am. St. Rep. 49 ; Tiedm. Eq. Jur. 107. The 
 rule of equitable estoppel is, that where one 
 by his acts, declarations, or silence where it 
 is his duty to speak, has induced another, 
 in reliance on such acts, declarations, or 
 silence, to enter into a transaction, he shall 
 not, to the prejudice of the person mis- 
 led. Impeach the transaction; per Bates, Ch., 
 in Marvel v. Ortlip, 3 Del. Ch. 9; Woodruff 
 v. Morristown Instit. for Savings, 34 N. 
 J. Eq. 174 ; Miles v. Lefi, 60 la. 168, 14 N. W. 
 233; Stowe v. U. S., 19 Wall. (U. S.) 13, 22 
 L. Ed. 144; Davis v. Williams. 49 la. 83; 
 Griffin v. City of Lawrence. 135 Mass. 365; 
 Given v. Printing Co., 114 Fed. 92, 52 C. C. 
 A. 40 ; Linton v. Ins. Co., 104 Fed. 584, 44 C. 
 C. A. 54; Greer v. Mitchell, 42 W. Va. 494, 
 26 S. E. 302. "He who by his language or 
 conduct leads another to do what he would 
 not otherwise have done shall not subject 
 such person to loss or injury by disappoint- 
 ing the expectations upon which he acted." 
 Dickerson v. Colgrove, 100 U. S. 57S, 25 L. Ed. 
 618, where an estoppel in- pais in regard to 
 real estate was held to have been created by 
 a letter disavowing intention to claim the 
 same. 
 
 Representations, in order to constitute an 
 estoppel must be made to induce the other 
 party to act, and he must have been induced 
 so to act; Booth v. Lenox, 45 Fla. 191, 34 
 South. 506: Welty v. Vulgamore, 24 Ohio C. 
 C. 572 ; to his injury ; Appeal of Columbus, S. 
 
 6 H. R. Co., 109 Fed. 177, 4S C. C. A. 275. 
 They must amount to misrepresentation or 
 concealment of material facts ; Brian v. Bon- 
 villain, 111 La. 441, 35 South. 6P>2; Mining 
 Co. v. Juab County, 22 Utah 395, 62 1'ac. 
 1024; Atkinson v. Plum, 50 W. Va. 104, 40 S. 
 EL 587, 58 L. R. A. 7SS ; of which the other 
 party is actually and permissively ignorant; 
 City of Ft. Scott v. Brokerage Co., 117 Fed. 
 51, 04 C. C. A. 437; or such negligence as 
 amounts to fraud in law ; Dye v. Crary, 13 
 N. Mex. 439, S5 Pac. 1038 ; 9 L. R. A. (N. S.) 
 1136, affirmed, 208 U. S. 515, 28 Sup. Ct. 360, 
 52 L. Ed. 595. In some cases it is held that 
 there need not be intent to deceive ; Maxon 
 v. Lane, 124 Ind. 592, 24 N. E. 6S3 ; Rogers 
 v. St. Ry., 100 Me. 86, 60 Atl. 713, 70 L. R. A. 
 574 ; Vanneter v. Crossman, 42 Mich. 465, 4 
 N. W. 216 ; Lydick v. Gill, 68 Neb. 273, 94 N. 
 W. 109; Globe Nav. Co. v. Casualty Co., 39 
 Wash. 299, 81 Pac. 826; contra, see Stiff v. 
 
 Ashton, 155 Mass. 130, 29 N. E. 203 ; Beacon 
 Trust Co. v. Souther, 1^:: Mass. 413. 67 N. 
 E. 345; Pearson v. Hardin, 05 Mi. 
 N. W. 904; Centennial Eureka Min. Co. v. 
 Juab County, 22 Utah 395, 62 Pac. 1024. 
 There is no estoppel by acta in pais do] 
 der a misapprehension of facts induced by 
 the party setting up the estoppel ; Mason v. 
 St Albans Furniture Co., 149 Fed. 
 
 In some cases representations as to future 
 conduct may be the basis of estoppel, if their 
 purpose and effect involves the abandonment 
 of an existing righl and affects the conduct 
 of another; Union Mut. Life Ins. Co. v. Mow- 
 ry, 96 U. S. 544, 24 L. Ed. 674 ; Edison 
 trie Light Co. v. Electric Co., 59 Fed. 691, 
 699; Shields v. Smith, 37 Ark. 47; Stayton 
 v. Graham, 139 Pa. 1, 21 Atl. 2; but in Eng- 
 land it is otherwise; 5 H. L. Cas. 185, 211; 
 8 App. Cas. 4C7; [1902] A. C. 117, 130. 
 
 In the leading ease on this subject (Pickard 
 v. Sears, 6 Ad. & El. 1*','.)) a mortgagee of per- 
 sonalty was held to be estopped from assert- 
 ing his title under the mortgage because he 
 had passively acquiesced in a purchase of 
 the same by the defendant under an execu- 
 tion against the mortgagor. The rule of that 
 case was that an estoppel arose from wilful- 
 ly causing another to believe in a certain 
 state of facts, and to act on that belief; in 
 Gregg v. Wells, 9 A. & E. 97, Lord Denman 
 stated the rule more broadly as subjecting 
 to an estoppel one who negligently and cul- 
 pably stands by and allows another to con- 
 tract on the faith of a fact which he can 
 contradict; and in Freeman v. Cooke, 2 Exch. 
 654, it was said by Parke, B., that the rule 
 of Pickard v. Sears must be considered 
 tablished, but that by the term "wilfully" it 
 must be understood, "if not that the party 
 represents that to be true which he knows 
 to be untrue, at least, that he means his rep- 
 resentations to be acted upon, and that it is 
 acted upon accordingly." The establishment 
 of the rule as thus limited was followed by 
 Folger, J., in Continental Nat. Bank v. Bank, 
 50 N. Y. 575, where the principle was recog- 
 nized that doing an act and the omission to 
 act are the same; Howard v. Hudson. 2 I'd. 
 & Bl. 1; Knights v. Wiffen, L. R. 5 Q. P.. 660; 
 Casco Bank v. Keene, 53 Me. 103. Cases of 
 estoppel by silence are numerous; Appeal of 
 Thompson, 126 Pa. 367, 17 Atl. 643; Sillo- 
 way v. Ins. Co., 12 Gray (Mass.) T.: ; Blake v. 
 Ins. Co., 12 Gray (Mass.) 265; ••'.•", fan. Sup. 
 Ct. 133 (criticised at length; 19 Harv. L. Rev. 
 113) ; but silence does not always amount to 
 fraud; Lawrence v. Luhr, 65 Pa. 241; and 
 there is no estoppel by silence where a party 
 has had no opportunity to speak; National 
 Newark Banking Co. v. Bank, 63 l'a. 117. 
 See Carroll v. Tucker, 2 Misc. Rep. 397, 21 
 N. Y. Supp. 952. 
 
 The estoppel will be limited to the acts 
 which were based upon the representations 
 out of which the estoppel arose ; thus, where 
 a sheriff had a writ against A, but took B
 
 ESTOPPEL 
 
 10S2 
 
 ESTOPPEL 
 
 into custody, upon B's representations that 
 she was A, but detained her after he was 
 informed that she was not A, B was estop- 
 ped to recover damages for the false arrest 
 but not for the subsequent detention ; 2 C. 
 B. N. S. 495. See Burney v. Collins, 50 Ga. 
 90; Tilton v. Nelson, 27 Barb. (N. Y.) 595; 
 Bisph. Eq. § 292. 
 
 The acts alleged as an estoppel must be 
 executed and not merely executory ; Rorer 
 Iron Co. v. Trout, 83 Va. 397, 2 S. E. 713, 
 5 Am. St. Rep. 2S5 ; as when a statement is 
 not accepted and acted upon, it does not con- 
 stitute an estoppel ; Nosier v. R. Co., 73 la. 
 268, 34 N. E. 850; Gilbert v. Vail, 60 Vt. 261, 
 14 Atl. 542. 
 
 The doctrine of estoppel in pais is applied 
 at law as well as in equity ; Dickerson v. Col- 
 grove, 100 U. S. 578, 25 L. Ed. 618 (where the 
 early cases are cited) ; Drexel v. Berney, 122 
 U. S. 241, 253, 7 Sup. Ct. 1200, 30 L. Ed. 1219 ; 
 Wehrman v. Conklin, 155 U. S. 327, 15 Sup. 
 Ct. 129, 39 L. Ed. 167; Tracy v. Roberts, 88 
 Me. 317, 34 Atl. 68, 51 Am. St. Rep. 394; 
 Hagan v. Ellis, 39 Fla. 472, 22 South. 727, 63 
 Am. St. Rep. 167; Duke v. Griffith, 9 Utah 
 476, 35 Pac. 512; Marine Iron Works v. 
 Wiess, 148 Fed. 145, 78 C. C. A. 279; Camp- 
 bell v. Min. Co., 141 Fed. 610, 73 C. C. A. 260 ; 
 and therefore it is neither necessary nor per- 
 missible to resort to equity to obtain the ben- 
 efit of it ; Barnard v. German American Sem- 
 inary, 49 Mich. 444, 13 N. W. 811; Vermont 
 Copper Min. Co. v. Ormsby, 47 Vt. 709, 713; 
 Anglo-American Land, Mortgage & Agency 
 Co. v. Lombard, 132 Fed. 721, 6S C. C. A. 89 ; 
 to be available it must be specifically plead- 
 ed ; id. A title by estoppel has been held suf- 
 ficient to maintain ejectment or defend 
 against it ; George v. Tate, 102 U. S. 570, 26 
 L. Ed. 232; where the subject of acquiring 
 title to land by estoppel is fully considered. 
 See Adverse Possession. 
 
 Whether "title by estoppel," so called, may 
 be acquired to personal property is the sub- 
 ject of interesting discussion in the English 
 courts in cases of registration of a forged 
 transfer of stock. Such a transfer was held 
 to work an estoppel in favor of subsequent 
 transferees; L. R. 3 Q. B. 584; but not in 
 favor of the holder under the forged trans- 
 fer ; 49 L. J. Q. B. N. S. 392, where Brett, L. 
 J., said that "an estoppel gives no title to 
 that which is the subject-matter of it." He 
 considered that the meaning of the phrase 
 "legal title by estoppel," as used in the older 
 cases, is simply an expression of the recog- 
 nition of the doctrine of estoppel by the 
 courts of law as much as in those of equity, 
 and while "the estoppel assumes that the 
 reality is contrary to that which the person 
 is estopped from denying, it has no effect 
 whatever upon the reality of the circum- 
 stances." 
 
 It is said that the contract of a person 
 under disability cannot be made good by es- 
 toppel ; Bisph. Eq. § 293. See Lowell v. Dan- 
 
 iels, 2 Gray (Mass.) 161, 61 Am. Dec. 448; 
 Merriam v. R. Co., 117 Mass. 241 ; Glidden 
 v. Strupler, 52 Pa. 400. It makes no differ- 
 ence that the person, if a married woman, 
 falsely represented herself to be sole; 9 Ex. 
 41'2; Weathersbee v. Farrar, 97 N. C. 107, 1 
 S. E. 616. But estoppel may operate to pre- 
 vent such a person from enforcing a right. 
 For instance, if a married woman were to 
 induce A to buy property from B, knowing 
 that the title was not in B, but in herself, 
 she would be estopped from asserting her ti- 
 tle against A ; Connolly v. Branstler, 3 Bush 
 (Ky.) 702, 96 Am. Dec. 278; Brinkerhoff v. 
 Brinkerhoff, 23 N. J. Eq. 477; Drake v. Glo- 
 ver, 30 Ala. 382. The same principle would 
 extend to similar acts on the part of an in- 
 fant ; 3 Hare 503 ; Whittington v. Doe, 9 Ga. 
 23 ; but not unless the conduct was inten- 
 tional and fraudulent; Harmon v. Smith, 38 
 Fed. 482 ; but infancy, being in law a shield 
 and not a sword, cannot be pleaded to avoid 
 liability for frauds, trespasses or torts; 1 
 Lev. 169 ; International Land Co. v. Mar- 
 shall, 22 Okl. 693, 98 Pac. 951, 19 L. R. A. (N. 
 S.) 1056, where the cases are discussed by 
 Williams, C. J. See notes in 57 L. R. A. 684 ; 
 9 L. R. A. (N. S.) 1117; 16 L. R. A. 672. 
 
 "Equitable estoppel is not applied in favor 
 of a volunteer;" [1898] 1 Ch. 82. An unexe- 
 cuted contract void as against public policy 
 cannot be validated by invoking the doctrine 
 of estoppel ; Robinson v. Patterson, 71 Mich. 
 141, 39 N. W. 21 ; McKinney v. Development 
 Co., 167 Fed. 770, 93 C. C. A. 258. 
 
 The doctrine that estoppels bind not only" 
 parties, but privies of blood, law, and estate, 
 is said to apply equally to this class of estop- 
 pels ; Bigelow, Estop. 554, 629 ; but a ward 
 cannot be estopped by an act of his guard- 
 ian which the other party to the agreement 
 knew to be unauthorized; Heisen v. Heisen, 
 145 111. 658, 34 N. E. 597, 21 L. R. A. 434. 
 
 An agent or attorney having received mon- 
 ey for his principal is in general estopped to 
 deny his liability to pay it over to him, but it 
 is a good defence that he was divested of 
 the property or required to pay over the mon- 
 ey by one having a paramount title ; Moss 
 Mercantile Co. v. Bank, 47 Or. 361, 82 Pac. 
 8, 2 L. R. A. (N. S.) 657, and note, 8 Ann. 
 Cas. 569. 
 
 One who accepts a benefit under a will is 
 thereby estopped to deny its validity; Drake 
 v. Wild, 70 Vt. 52, 39 Atl. 248 ; Branson v. Wat- 
 kins, 96 Ga. 55, 23 S. E. 204 ; Fry v. Morrison, 
 159 111. 244, 42 N. E. 774; Utermehle v. Nor- 
 ment, 197 U. S. 40, 25 Sup. Ct. 291, 49 L. Ed. 
 055, 3 Ann. Cas. 520 ; though ignorant of the 
 rule of law on the subject; id. 
 
 At common law there was no estoppel 
 against the sovereign; 10 Mod. 199, and the 
 doctrine is applied in some states; State v. 
 Williams, 94 N. C. 891; but, as appears su- 
 pra, the state has been held estopped by mat- 
 ter of record and by deed. The weight of au- 
 thority is against the estoppel of the govern-
 
 ESTOPPEL 
 
 1083 
 
 ESTOPPEL 
 
 ment by matter in pais, though It has been 
 questioned whether there should not be ; 19 
 Harv. L. Rev. 126; and where the so- 
 asserts a pecuniary demand in court, it has 
 been applied, though with hesitation; Walk- 
 er v. U. S., 139 Fed. 409, where it was held 
 that acts of officers of the United States, au- 
 thorized to shape its conduct as to the trans- 
 action, may work an estoppel against the 
 government. As to estoppels against the 
 state or the United States, see note to State 
 of Michigan v. Jackson, L. & S. R. Co., 16 
 CCA. 353. 
 
 Estoppel has been sustained as against a 
 municipal corporation; Beadles v. Smyser, 
 209 U. S. 393, 28 Sup. Ct. 522, 52 L. Ed. S49 ; 
 and it has been held that an estoppel in pais 
 (by reason of a mistake of an officer which 
 misled a person searching records) cannot be 
 set up against a municipal government : Phil- 
 adelphia Mortgage & Trust Co. v. Omaha, 63 
 Neb. 280, 88 N. W. 523, 93 Am. St. Rep. 442 ; 
 but in a note on this case it is contended that 
 the doctrine of estoppel is available as 
 against the sovereign ; 15 Harv. L. Rev. 737. 
 it is sometimes said, though usually denied, 
 that there can be no estoppel against alleg- 
 ing unconstitutionality, and for an examina- 
 tion of cases on this point, see 21 Harv. L. 
 Rev. 133. It is also held that parties cannot 
 estop themselves by a contract "in the face 
 of an act of parliament"; 14 Ch. D. 432. 
 
 An estoppel against one of two joint plain- 
 tiffs, whose right is to a joint recovery, will 
 defeat the action ; Mcintosh v. Dierken, 222 
 Pa. 612, 72 Atl. 232; one who applies for 
 company shares in a fictitious name will not 
 be permitted to deny liability as a share- 
 holder; 5 Maiison 336. 
 
 Where the facts are undisputed, the ques- 
 tion whether they amount to an estoppel is 
 one of law for the court; Keating v. Orne, 77 
 Pa. 89; Cox v. Rogers, 77 Pa. 160; Lewis v. 
 Carstairs, 5 W. & S. (Pa.) 205. Otherwise 
 the facts are of course to be submitted to the 
 jury under proper instructions as to what 
 will constitute an estoppel. 
 
 The maxim vigilantibus non dormientibus 
 leges adjuvant specially applies to a claim 
 of equitable estoppel, since in such cases the 
 interposition of equity is extraordinary and 
 restrictive of what but for the estoppel would 
 be a clear legal right; Marvel v. Ortlip, 3 
 Del. Ch. 9. The representations must be such 
 as to lead a reasonably prudent man to act 
 on them and he must have done this in ig- 
 norance of the truth and in good faith; Da- 
 vis v. Pryor, 112 Fed. 274, 50 C C A. 579. 
 
 This principle has been applied to cases of 
 dedication of land to the public use; Cincin- 
 nati v. White, 6 Pet. (U. S.) 438, 8 L. Ed. 152 ; 
 Hobbs v. Inhabitants of Lowell, 19 Pick. 
 (Mass.) 405, 31 Am. Dec. 145 ; of the owner's 
 standing by and seeing land improved; Fa- 
 vill v. Roberts, 50 N. Y. 222: Smith v. Mc- 
 Neal, 68 Pa. 164; Truesdail v. Ward. 2 ( 
 Mich. 134 ; Forbes v. McCoy, 24 Neb. 702, 40 
 
 X. W. 132; Alabama G. S. r. Co. v. R. Co., 
 84 Ala. 570, 3 South. 286, 5 Am. St. Rep. 
 401; Robertson v. Wind 5 Tenn. 171, 
 
 l s. w. 781; Stone v. T; 
 
 <:. Ms ; Marines v. I : s. I '. L53, 
 
 9 S. E. 803, 17 Am. St. 
 Epley v. Witherow, 7 Watts 
 Thompson v. Sanborn, n x. H. 201, :;."> Am. 
 
 180; Morrison v. Morrison's Wl 
 1 'ana (Ky.) 13; Snodgrass v. Ric 
 359; Shapley v. Rangeley, 1 Woodb. & .M. 213, 
 Fed. Cas. Xo. 12,707; Titus v. Morse, 10 Me. 
 .'Ms, 63 Am. Dec. 665; Planet Property 
 nancial Co. v. Ry. Co., 115 Mo. 613, 22 s. w. 
 (116; without making any claim; Planet 
 Property & Financial Co. v. Ry. Co., 115 Mo. 
 613, 22 S. W. 616; Winters v. Armstrong, 37 
 Fed. 50S; Griffeth v. Brown, 7»; Cal. - 
 Pac. 372; Weinstein v. Bank, 69 Tex. 38, 6 
 S. W. 171, 5 Am. St. Rep. 23; Bynum v. Pres- 
 ton, 69 Tex. 2S7, 6 S. W. 428, 5 Am. St Rep. 
 49; McMartin v. Ins. Co., 41 Minn, IPS 42 
 X. W. 934 ; Irvine v. Scott, 85 Ky. 260, 3 S. 
 W. 103. But the owner is not estopped by 
 the unlawful occupation of a trespasser for 
 less than the legal period of limitation ; Woll 
 v. Voight, 105 Minn. 371, 117 X. W. 608, 23 L. 
 R. A. (X. S.) 270, and note. 
 
 What is termed an estoppel by negligence 
 occurs when one who is under a legal duty, 
 either to the person injured or to the public, 
 to act with due care, fails to do so, and such 
 failure is the natural and proximate cause of 
 misleading that person to alter his position; 
 but to create the estoppel all these elements 
 must concur; Bradford v. Ins. Co., 102 
 48, 43 C C A. 310, 49 L. R. A. 530 ; Andrus 
 v. Bradley, 102 Fed. 54; Central R. R. Co. 
 of Xew Jersey v. McCartney, US X. J. L. 105, 
 52 Atl. 575; Brown & Co. v. Ins. Co., 42 Md. 
 3S4, 20 Am. Rep. 90 ; Nye v. Denny, IS Ohio 
 St. 246, 9S Am. Dec lis; Tisher v. Beck- 
 with, 30 Wis. 55, 11 Am. Rep. 546 ; 1 C P. D. 
 578; [1905J 1 K. B. 677 (where, ho\ 
 payment of a stolen cheque with a forged 
 indorsement was held good under the law <>f 
 Austria where the transaction occurred 
 though it would not have been good in Eng- 
 land). 
 
 But this doctrine does not apply between 
 original parties, or where the defence is that, 
 by reason of fraud, the writing, on which the 
 estoppel is claimed, dues not embrace tl 1 
 tract as originally made; Ward v. Spelts, •':'•> 
 Xeb. S09, 58 X. W. 420; Spelts v. Ward. 2 
 Neb. (Unof.) 177, 96 X. W. 56. 
 
 The phrase "estoppel by negligence" has 
 been characterized as "an expression usual 
 but not accurate, since negligence prevents a 
 right of action accruing, estoppel a right that 
 lias accrued from being set up": 2 Beven, 
 Xegl. 1332, where, however, a Chapter is de- 
 voted to 1 he subject. So also Bigelow treats 
 the doctrine as above stated as a recognized 
 branch of estoppel; Big. Est (6th ed.) 711; 
 and while considering it quite clear that "cas- 
 es of estoppel ari.-ing out of negligeuce with-
 
 ESTOPPEL 
 
 1084 
 
 ESTOPPEL 
 
 out a representation must be uncommon," 
 thinks it well settled that "negligence when 
 naturally and directly tending to indicate in- 
 tention" is equivalent to it in creating an 
 estoppel. 
 
 See an interesting discussion of the doc- 
 trine, with critical examination of the Eng- 
 lish cases, by John S. Ewart in 15 L. Q. R. 
 384. 
 
 As to whether the doctrine of estoppel has 
 any place in criminal law, see 12 Harv. L. 
 Rev. 5G ; 2 Bish. Cr. L. § 364 ; State v. Spauld- 
 ing, 24 Kan. 1 ; Moore v. State, 53 Neb. 831, 
 74 N. W. 319. 
 
 Quasi-Estoppel. A term used by Bigelow 
 to cover a group of cases in which a party is 
 precluded from occupying inconsistent posi- 
 tions, either in litigations or in ordinary 
 dealings; Big. Est. (6th ed.) 732. The prin- 
 ciple covers a variety of cases under wills 
 where a party who elects to take a benefit is 
 required to give effect to an otherwise void 
 devise; 31 Ch. D. 466; or appointment; 2 
 Atk. 88 ; or one taking a benefit under it can- 
 not dispute the validity of a deed ; Pickett v. 
 Bank, 32 Ark. 346; Robinson v. Pebworth, 
 71 Ala. 240 ; Jacobs v. Miller, 50 Mich. 119, 
 15 N. W. 42; Wood v. Seely, 32 N. Y. 105; 
 or of a contract of affreightment ; The Wa- 
 ter Witch, 1 Black (U. S.) 494, 17 L. Ed. 155. 
 So also a person who has procured the en- 
 actment of a statute and received benefits 
 under it, is precluded from alleging its un- 
 constitutionality ; Vose v. Cockcroft, 44 N. 
 Y. 415; Sherman v. McKeon, 38 N. Y. 266; 
 Cloud v. Coleman, 1 Bush (Ky.) 548; one 
 who has petitioned for opening a street or 
 acquiesced in it cannot dispute the validity 
 of the assessment for it ; City of Burlington 
 v. Gilbert, 31 la. 356, 7 Am. Rep. 143; Ap- 
 peal of Ferson, 96 Pa. 140. 
 
 It has been held that a party, who in a 
 cause applies for affirmative relief, is estop- 
 ped from setting up an original lack of juris- 
 diction ; Thompson v. Greer, 62 Kan. 522, 64 
 Pac. 4S; Chandler v. Bank, 149 Ind. 601, 49 
 N. E. 579 ; Lower v. Wilson, 9 S. D. 252, 68 
 N. W. 545, 62 Am. St. Rep. S65 ; F. C. Austin 
 Mfg. Co. v. Hunter, 16 Okl. 86, 86 Pac. 293; 
 Champion v. R. Co., 145 Mich. 676, 108 N. W. 
 1078 ; Montague v. Marunda, 71 Neb. 805, 99 
 N. W. 653 ; contra, Freer v. Davis, 52 W. Va. 
 1, 43 S. E. 164, 59 L. R. A. 556, 94 Am. St. 
 Rep. 895 ; State v. Dist. Court of Second Ju- 
 dicial Dist, 34 Mont. 226, 85 Pac. 1022 ; and 
 it is suggested that the latter view should 
 prevail upon the principle that consent can 
 never give jurisdiction ; 20 Harv. L. Rev. 
 150, 237. 
 
 It is to be noted that in the cases grouped 
 under this title the courts have generally 
 used the simple term "estoppel" which, it 
 has been suggested, is a questionable use of 
 terms, since many of the cases are mere in- 
 stances of ratification or acquiescence; Big. 
 Est. 755. 
 
 Estoppel in pais need not be pleaded, but 
 
 this rule is altered in many states ; Big. Est 
 763. 
 
 The doctrine of estoppel is said to be the 
 basis of another equitable doctrine, that of 
 election; Bisph. Eq. § 294. See Election. 
 
 ESTOVERS (estouviers, necessaries; from 
 estoffer, to furnish). The right or privilege 
 which a tenant has to furnish himself with 
 so much wood from the demised premises as 
 may be sufficient or necessary for his fuel, 
 fences, and other agricultural operations. 2 
 Bla. Com. 35 ; Van Rensselaer v. Radcliff, 10 
 Wend. (N. Y.) 639, 25 Am. Dec. 582. 
 
 Any tenant may claim this right, whether 
 he be a tenant for life, for years, or at will ; 
 and that without waiting for any special 
 leave or assignment of the lessor, unless he 
 is restrained by some provision contained in 
 his lease; Shepp. Touchst. 3, n. 1; Chal. R. 
 P. 311. Nor does it appear to be necessary 
 that the wood should all be consumed upon 
 the premises, provided it is taken in good 
 faith for the use of the tenant, and in rea- 
 sonable quantities, with the further qualifica- 
 tion, also, that no substantial injury be done 
 to the inheritance; Gardner v. Dering, 1 
 Paige, Ch. (N. Y.) 573. 
 
 Where several tenants are granted the 
 right of estovers from the same estate, it be- 
 comes a common of estovers; but no one of 
 such tenants can, by underletting his land to 
 two or more persons, apportion this right 
 among them ; for in this way he might sur- 
 charge the land, and the rights of his co- 
 tenants, as well as those of the landlord, 
 would be thereby invaded. In case, there- 
 fore, of the division of a farm among several 
 tenants, neither of the under-tenants can 
 have estovers, and the right, consequently, 
 becomes extinguished; Van Rensselaer v. 
 Radcliff, 10 Wend. (N. Y.) 650, 25 Am. Dec. 
 5S2 ; 4 Co. 36 ; 8 id. 78. There is much learn- 
 ing in the old books relative to the creation, 
 apportionment, suspension, and extinguish- 
 ment of these rights, very little of which, 
 however, is applicable to the condition of 
 things in this country, except perhaps in New 
 York, where the grants of the manor-lands 
 have led to some litigation on the subject 
 Tayl. Landl. & T. § 220. See 4 Washb. R. P. 
 99; 7 Bing. 640; Padelford v. Padelford, 7 
 Pick. (Mass.) 152 ; Richardson v. York, 14 Me. 
 221 ; Dalton v. Dalton, 42 N. C. 197 ; Owen v. 
 Hyde, 6 Yerg. (Tenn.) 334, 27 Am. Dec. 467; 
 Loomis v. Wilbur, 5 Mas. 13, Fed. Cas. No. 
 8.49S. 
 
 The alimony allowed to a wife was called 
 at common law, estovers. See De Estoveeiis 
 Habenois ; Common. 
 
 EST RAY. Cattle whose owner is un- 
 known. Spelman, Gloss. ; Walters v. Glats, 
 29 la. 437; Roberts v. Barnes, 27 Wis. 422; 
 Shepherd v. Hawley, 4 Or. 206; Lyman v. 
 Gipson, 18 Pick. (Mass.) 426 ; but see Worth- 
 ington v. Brent, 69 Mo. 205; State v. Apel, 
 14 Tex. 431. Any beast, not wild, found with-
 
 ESTRAY 
 
 1085 
 
 LEPEMENT 
 
 in any lordship, and not owned by any man. 
 Cowell ; 1 Bla. Corn. 297 ; 2 id. 14. These be- 
 longed to the lord of the soil. Britt. c. 17. 
 
 An animal turned on a range by Its owner 
 is not an estray, although its Immediate 
 whereabouts is unknown to the owner, unless 
 it wanders from the range and becomes Lost; 
 Stewart v. Hunter, 1G Or. G2, 10 Pac. 876, S 
 Am. St. Rep. 267. 
 
 It is used of flotsam at sea. 15 L. Q. R. 
 357. 
 
 See Animal; Running at Large. 
 
 ESTREAT. A true copy or note of some 
 original writing or record, and especially of 
 fines and amercements imposed by a court, 
 extracted from the record, and certified to a 
 proper officer or officers authorized and re- 
 quired to collect them. Fitzh. N. B. 57, 76. 
 A forfeited recognizance taken out from 
 among the other records for the purpose of 
 being sent up to the exchequer, that the par- 
 ties might be sued thereon, was said to be 
 estreated. 4 Bla. Com. 253. 
 
 ESTREPEMENT. A common-law writ for 
 the prevention of waste. 
 
 The same object being attainable by a mo- 
 tion for an injunction in chancery, the writ 
 became obsolete in England, and was abol- 
 ished by 3 & 4 Will. IV. c. 27. 
 
 The writ lay at common law to prevent a party In 
 possession from committing waste on an estate the 
 title to which was disputed, after judgment ob- 
 tained in any real action and before possession was 
 delivered by the sheriff. 
 
 Rut, as waste might be committed in some cases 
 pending the suit, the statute of Gloucester gave 
 another writ of estrepement pendente placito, com- 
 manding the sheriff firmly to inhibit the tenant 
 "ne faciat vastum vel strepemenUim pendente pla- 
 cito dicto indiscusso." By virtue of either of these 
 writs, the sheriff may resist those who commit 
 waste or offer to do so ; and he might use sufficient 
 force for the purpose ; 3 Bla. Com. 225, 226. 
 
 The writ was sometimes directed to the 
 sheriff and the party in possession of the 
 lands, in order to make him amenable to the 
 court as for a contempt in case of his dis- 
 obedience to the injunction of the writ. At 
 common law the process proper to bring the 
 tenant into court is a venire facias, and 
 thereon an attachment. Dpon the defend- 
 ant's coming in, the plaintiff declares against 
 him. The defendant usually pleads "that 
 he has done no waste contrary to the* pro- 
 hibition of the writ." The issue on this plea 
 is tried by a jury, and iu case they find 
 againsl the defendant they assess damages 
 which the plaintiff recovers. But, as this 
 verdict convicts the defendant of a contempt, 
 the court proceed against him for that cause 
 as in other cases; Co. 2d lust. 329; Rast 
 317; 1 B. & P. 121; 2 Lilly, Reg. Estrepe- 
 ment; 5 Co. 110; Reg. Brev. 76. 
 
 In Pennsylvania, by statute, the remedy 
 by estrepement is extended for the benefit of 
 any owner of lands leased for years or- at 
 will, at any time during the continuance or 
 after the expiration of such demise, and due 
 
 notice given to the tenant to leave the same, 
 agreeably to law; or for any purchaser at 
 sheriff or coroner's sale of lands, etc., after 
 he has been declared the highest Udder by 
 the sheriff or coroner; or for any i 
 or judgment-creditor, afte 
 by such judgment or mortgage shall have 
 bi en condemned by inquisition, or srhi b 
 be subject to be sold by a writ of venditioni 
 exponas or /' vari fa . AJbr. 
 
 497; Woodf. Landl. & T. 447; .. PL 
 
 17; 7 Com. Dig. 659; Irwin v. Covode, 24 Pa. 
 162 ; Byrne v. Boyle, 37 Pa. 2G0. 
 
 ET ADJOURN AT UR (Lat.). And it I 
 
 journed. A phrase used in the old re, 
 where the argument of a cause was adjourn- 
 ed to another day, or where a second argu- 
 ment was had. 1 Keb. 692>, 754. 
 
 ET ALIUS (Lat). And another. The ab- 
 breviation ct al., sometimes in the plural 
 written et als., I to the name of the 
 
 first plaintiff or defendant, in entitling a 
 cause, where there are several joined as 
 plaintiffs or defendants. 
 
 On an appeal from a judgment In favor of two or 
 more parties, a bond payable to one of the appel- 
 lees et al. will be good ; Conery v. Webb, 12 La. 
 Ann. 282. But where a summons should state the 
 parties to the action, the name of one followed by 
 the words et al. is not sufficient; Lyman v. Milton, 
 44 Cal. 630. 
 
 ET C/ETERA (Lat.). And others: and 
 other things. See Lathers v. Keogh, 39 Hun 
 (N. Y.) 576; Agate v. Lowenbein, 4 Daly i N. 
 Y.) 62. 
 
 The addition of the abbreviation etc. to 
 some minor provisions of an agreement for 
 a lease does not introduce such uncertainty 
 as to prevent a decree for specific perform- 
 ance where the material points are i 
 2 De G. & J. 559; but such an agreement 
 "for letting and taking coals, etc.," was too 
 indefinite a statement of the subject-matter 
 of the agreement to admit of such a decree; 
 1 De G. M. & G. SO; an agreement "to do all 
 the painting, papering, repair: :tinu r . 
 
 etc., during the term of the Lease" was not 
 so uncertain as to prevent a specific perform- 
 ance; 21 L. J. R. 1S5. 
 
 Under a bequest of "all her household fur- 
 niture and effects, plate, linen, china. 
 books, wearing apparel, etc.," it was claim- 
 ed that the testatrix had disposed of the 
 general residue of her estate, but she was 
 held by Komilly, M. R., to be intestate 
 cept as to the articles specified in the will 
 and those which are ejusdem </< 
 Beav. 220; and the same judge held the 
 words good-will, etc., in a contract, to Include 
 "such other things as are necessarily 
 nected with and belong to the good-will, 
 . . . for instance, the use of trade-marks," 
 and a covenant not to engage in similar 
 business in Great Britain for a reasonable 
 time to be limited in the conveyance having 
 regard to the nature of such undertakings.
 
 ET CETERA 
 
 1086 
 
 ET UXOR 
 
 "All these things would be included in the 
 words et cetera;" 28 L. J. Ch. 212 ; "all my 
 furniture, etc.," passed only property ejus- 
 dem generis and not shares of a waterworks 
 company ; L. R. 11 Eq. 363 ; a bequest to 
 his widow of "all my money, cattle, farm- 
 ing implements, etc., she paying" certain 
 sums named to testator's two brothers, 
 was sufficient to make the widow residu- 
 ary legatee of real and personal estate, the 
 latter being insufficient to pay debts ; Jessel, 
 M. R., L. R. 4 Ch. Div. 800. 
 
 The abbreviation etc. was formerly much 
 used in pleading to avoid the inconveniences 
 attendant upon making full and half de- 
 fence. See Defence. It is not generally to 
 be used in solemn instruments; see Com. v. 
 Ross, 6 S. & R. (Pa.) 427; when used in 
 pleadings to avoid repetition, it usually re- 
 fers to things unnecessary to be stated ; Da- 
 no v. R. Co., 27 Ark. 5G4. 
 
 Where the sense of the abbreviation may 
 be gathered from the preceding words there 
 is sufficient certainty ; but where the abbrevi- 
 ation cannot be understood and affects a 
 vital part of the contract or instrument' the 
 uncertainty will be fatal. 
 
 See Hayes v. Wilson, 105 Mass. 21; Gray 
 v. R. Co., 11 Hun (N. Y.) 70; Ejusdem 
 Generis. 
 
 ET DE HOC P0NIT SE SUPER PATRI- 
 
 AM (Lat). And of this he puts himself up- 
 on the country. The Latin form of conclud- 
 ing a traverse. See 3 Bla. Com. 313. 
 
 ET HOC PARATUS EST VERIFICARE 
 
 (Lat.). And this he is prepared to verify. 
 The form of concluding a plea in confession 
 and avoidance; that is, where the defendant 
 has confessed all that the plaintiff has set 
 forth, and has pleaded new matter in avoid- 
 ance. 1 Salk. 2. 
 
 ET HOC PETIT QUOD INQUIRATUR 
 PER PATRIAM (Lat). And this he prays 
 may be inquired of by the country. The 
 conclusion of a plea tendering an issue to 
 the country. 1 Salk. 3. 
 
 ET INDE PR0DUCIT SECTAM (Lat). 
 And thereupon he brings suit. The Latin 
 conclusion of a declaration, except against 
 attorneys and other officers of the court 3 
 Bla. Com. 295. 
 
 ET MO DO AD HUNC DIEM (Lat). And 
 now at this day. The Latin form of the 
 commencement of the record on appearance 
 of the parties. 
 
 ET NON (Lat). And not These words 
 are sometimes employed in pleading to con- 
 vey a pointed denial. They have the same 
 effect as "without this," absque hoc. 2 Bou- 
 vier, Inst., 2d ed. n. 2985, note. 
 
 ET SIC AD PATRIAM (Lat). And so to 
 
 the country. A phrase used in the Year 
 Books, to record an issue to the country. 
 
 ET UXOR TLat. and wife). Used to show 
 that the wife of the grantor is a party to the 
 deed. The abbreviation is et ux. 
 
 ETHICS, LEGAL. That branch of moral 
 science which treats of the duties which a 
 member of the legal profession owes to the 
 public, to the court, to his professional 
 brethren, and to his client 
 
 Perhaps the most comprehensive and satisfactory- 
 treatment of the subject is the essay of Judge 
 Sharswood, originally embodied in a series of lec- 
 tures to the law school of the University of Penn- 
 sylvania, in 1854. The republication of the fifth 
 edition, forty-two years after the issue of the first, 
 attests the interest of the profession in the work. 
 It was republished by the American Bar Associa- 
 tion in 1907. From it the following is mainly ex- 
 tracted: 
 
 The relation of the profession to the public is so 
 intimate and far-reaching, that it "can hardly be 
 over-estimated." This arises from its influence 
 both on legislation and jurisprudence ; the latter of 
 which it controls entirely and "the former almost 
 entirely." Accordingly there is involved the study 
 of the true ends of society and government and the 
 conservation of life, liberty, and property, and as 
 means to these ends it is the office of the Bar to 
 diffuse sound principles among the people, to aid in 
 forming correct public opinion, "to maintain the 
 ancient landmarks, to respect authority, and to 
 guard the integrity of the law as a science." 
 
 The responsibilities,- legal and moral, of the law- 
 yer, arising from his relations to the court, to his 
 professional brethren, and to his client, are thus 
 treated: "Fidelity to the court, fidelity to the client, 
 fidelity to the claims of truth and honor: these are 
 the matters comprised in the oath of office." 
 
 "Fidelity to the court requires outward respect in 
 words and actions. The oath, as it has been said, 
 undoubtedly looks to nothing like allegiance to the 
 person of the judge ; unless in those cases where 
 his person is so inseparable from his office, that an 
 insult to the one is an indignity to the other. In 
 matters collateral to official duty, the judge is on a 
 level with the members of the Bar, as he is with his 
 fellow-citizens ; his title to distinction and respect 
 resting on no other foundation than his virtues and 
 qualities as a man." Per Gibson, C. J., in In re 
 Austin, 5 Rawle (Pa.) 204, 28 Am. Dec. 657. 
 
 "There are occasions, no doubt, when duty to the 
 interests confided to the charge of the advocate de- 
 mands firm and decided opposition to the views ex- 
 pressed or the course pursued by the court, nay, 
 even manly and open remonstrance ; but this duty 
 may be faithfully performed, and yet that outward 
 respect be preserved, which is here inculcated. 
 Counsel should ever remember how necessary it is 
 for the dignified and honorable administration of 
 justice, upon which the dignity and honor of their 
 profession entirely depend, that the courts and the 
 members of the courts should be regarded with 
 respect by the suitors and people ; that on all occa- 
 sions of difficulty or danger to that department of 
 government, they should have the good opinion and 
 confidence of the public on their side." 
 
 "Indeed it is highly important that the temper of 
 an advocate should be always equal. He should 
 most carefully aim to repress everything like ex- 
 citability or irritability. When passion is allowed 
 to prevail, the judgment is dethroned. Words are 
 spoken, or things done, which the parties afterwards 
 wish could be unsaid or undone. Equanimity and 
 self-possession are qualities of unspeakable value." 
 "Another plain duty of counsel is to present 
 everything in the cause to the court openly in the 
 course of the public discharge of its duties. It is 
 not often, indeed, that gentlemen of the Bar so far 
 forget themselves as to attempt to exert privately 
 an influence upon the judge, to seek private inter- 
 views, or take occasional opportunities of accidental 
 or social meetings to make ex parte statements, or 
 to endeavor to impress their views. . . . They
 
 ETHICS, LEGAL 
 
 1087 
 
 ETHICS, LEGAL 
 
 know that such conduct is wrong in itself, and has 
 a tendency to impair confidence in the adminis- 
 tration of justice, which ought not only to be pure 
 but unsuspected. A judge will do right to avoid 
 social intercourse with those who obtrude such un- 
 welcome matters upon his moments of relaxation." 
 
 "There is one thing, however, of which gentlemen 
 of the Bar are not sufficiently careful,— to d 
 age and prohibit their clients from pursuing a simi- 
 lar course. The position of the judge in relation to 
 a cause, under such circumstances, is very ■ 
 rassing, especially, as is often the case, if he hears 
 a good deal about the matter before he discovers 
 the nature of the business and object of the call 
 upon him." 
 
 •'Counsel should set their faces against all un- 
 due influences of the sort; they are unfaithful to 
 the court if they allow any improper means of the 
 kind to be resorted to. Judicem nee de obtinendo 
 jure orari oportet nee de injuria exorari. It may 
 be in place to remark here that the counsel in a 
 cause ought to avoid all unnecessary communica- 
 tion with the jurors before or during any trial in 
 which he may be concerned. He should enforce the 
 same duty upon his client." 
 
 "There is another duty to the court, and that is, 
 to support and maintain it in its proper province 
 wherever It comes in conflict with the co-ordinate 
 tribunal — the jury." 
 
 "It need hardly be added that a practitioner 
 ought to be particularly cautious, in all his dealings 
 with the court, to use no deceit, imposition, or eva- 
 sion — to make no statements of facts which he does 
 not know or believe to be true — to distinguish care- 
 fully what lies in his own knowledge from what he 
 has merely derived from his instructions— to pre- 
 sent no paper-books intentionally garbled. 'Sir 
 Matthew Hale abhorred,' says his biographer, 'those 
 too common faults of misreciting witnesses, quot- 
 ing precedents or books falsely, or asserting any- 
 thing confidently ; by which ignorant juries and 
 weak judges are too often wrought upon.' " 
 
 "The topic of fidelity to the client Involves the 
 most difficult questions In the consideration of the 
 duty of a lawyer." 
 
 "He Is legally responsible to his client only for 
 the want of ordinary care and ordinary skill. That 
 constitutes gross negligence. It is extremely diffi- 
 cult to fix upon any rule which shall define what is 
 negligence in a given case. The habits and practice 
 of men are widely different in this regard. It has 
 been laid down that if the ordinary and average de- 
 gree of diligence and skill could be determined, it 
 would furnish the true rule. Though such be the 
 extent of legal liability, that of moral responsibility 
 is wider. Entire devotion to the interest of the 
 client, warm zeal In the maintenance and defence 
 of his rights, and the exertion of his utmost learn- 
 ing and ability,— these are the higher points which 
 can only satisfy the truly conscientious practi- 
 tioner." 
 
 "But what are the limits of his duty when the 
 legal demands or interests of his client conflict with 
 his own sense of what is just and right? This is a 
 problem by no means of easy solution. That lawyers 
 are as often the ministers of injustice as of Justice, 
 is the common accusation in the mouth of gain- 
 sayers against the profession. It is said there must 
 be a right and a wrong side to every lawsuit. In 
 the majority of cases it must be apparent to the ad- 
 vocate on which side is the justice of the cause ; 
 yet he will maintain, and often with the appear- 
 ance of warmth and earnestness, that side which he 
 must know to be unjust, and the success of which 
 will be a wrong to the opposite party. Is he not 
 then a participator in the injustice? It may be 
 answered in general: Every case is to be decided, 
 by the tribunal before which it is brought for ad- 
 judication, upon the evidence, and upon the prin- 
 ciples of law applicable to the facts as they appear 
 upon the evidence." 
 
 "Now the lawyer is not merely the agent of the 
 party ; he is an officer of the court. The party has 
 a right to have his case decided upon the law and 
 the evidence, and to have every view presented to 
 the minds of the judges which can legitimately 
 
 bear upon the question. This is the office which the 
 advocate performs. He is not morally responsible 
 for the act of the party in maintaining an unjust 
 cause, nor for the error of the court, if they fall 
 into error, in deciding it in his favor. The court or 
 jury ought certainly to hear and weigh both 
 and the office of the counsel Is to m by 
 
 doing that which the client in person, from want of 
 learning, experience, and address, is unable to do In 
 a proper manner. The lawyer who 
 fessional assistance because in his Judgment the 
 case is unjust and indefensible, usurps the functions 
 of both judge and jury." 
 
 "As an answer to any sweeping objection made 
 to the profession in general, the view thus pn 
 may be quite satisfactory. It by no means fi 
 however, as a principle of private action for the ad- 
 vocate, that all causes are to be taken by him indis- 
 criminately, and conducted with a view to one sin- 
 gle end, success. It is much to be feared, 
 ever, that the prevailing tone of professional ethics 
 leads practically to this result. He has an un- 
 doubted right to refuse a retainer, and decline to 
 be concerned in any cause, at his discretion. It is 
 a discretion to be wisely and justly exercised. When 
 he has once embarked in a case, he cannot retire 
 from it without the consent of his client or the ap- 
 probation of the court" 
 
 "Lord Brougham, in his Justly celebrated de- 
 fence of the Queen, went to very extravagant 
 lengths upon this subject ; no doubt he was led by 
 the excitement of so great an occasion to say what 
 cool reflection and sober reason certainly never can 
 approve. 'An advocate,' said he, 'in the discharge 
 of his duty knows but one person in all the world, 
 and that person is his client. To save that client by 
 all means and expedients, and at all hazards and 
 costs to other persons, and among them to himself, 
 is his first and only duty; and in performing this 
 duty he must not regard the alarm, the tor: 
 the destruction he may bring' upon others. Separat- 
 ing the duty of a patriot from that of an advocate, 
 he must go on, reckless of consequences: though it 
 should be his unhappy lot to involve his country in 
 confusion.' " 
 
 "On the other hand, and as Illustrative of the 
 practical difficulty which this question presented 
 to a man with as nice a perception of moral duty 
 as perhaps ever lived, It is said by Bishop Burnet 
 of Sir Matthew Hale: 'If he saw a cause was un- 
 just, he for a great while would not meddle further 
 in it, but to give his advice that it was so ; if the 
 parties after that would go on, they were to seek 
 another counsellor, for he would assist none in acts 
 of injustice ; if he found the cause doubtful or 
 weak in point of law, he always advised his clients 
 to agree their business. Yet afterwards he abated 
 much of the scrupulosity he had about causes that 
 appeared at first unjust, upon this occasion: there 
 were two causes brought him which, by the igno- 
 rance of the party or their attorney, were so Ill-rep- 
 resented to him that they seemed to be very bad ; 
 but he inquiring more narrowly into them, found 
 they were really very good and Just ; so after this 
 he slackened much of his former strictness of re- 
 fusing to meddle in causes upon the ill circum- 
 stances that appeared in them at first." " 
 
 "There is a distinction to be made between the 
 case of prosecution and defence for crimes ; be- 
 tween appearing for a plaintiff In pursuit of an un- 
 just claim, and for a defendant in resisting what 
 appears to be a Just one. Every man, accused of 
 an offence, has a constitutional right to a trial ac- 
 cording to law ; even If guilty, he ought not to be 
 convicted and undergo punishn upon 
 
 legal evidence ; and with all the forms which have 
 been devised for the security of life and liberty. 
 These are the panoply of Innocence, when unjustly 
 arraigned; and guilt cannot be deprived of it, with- 
 out removing It from innocence. He is t 
 therefore, to the benefit of counsel to conduct his 
 defence, to cross-examine the witnesses for the 
 State, to scan, with legal knowledge, the forms of 
 the proceeding against him, to present his defence 
 in an intelligible shape, to suggest all those r 
 able doubts which may arise from the evidence as
 
 ETHICS, LEGAL 
 
 1088 
 
 ETHICS, LEGAL 
 
 to his guilt, and to see that if lje is convicted, It is 
 according to law." 
 
 As to contingent fees Judge Sharswood says: 
 
 "Regard should be had to the general usage of the 
 profession, especially as to the rates of commis- 
 sion to be charged for the collection of undefended 
 claims. Except in this class of cases, agreements 
 between counsel and client that the compensation 
 of the former shall depend upon final success in the 
 lawsuit — in other words, contingent fees — however 
 common such agreements may be, are of a very 
 dangerous tendency, and to be declined in all or- 
 dinary cases. In making his charge, after the busi- 
 ness committed to him has been completed, as an 
 attorney may well take into consideration the gen- 
 eral ability of his client to pay, so, he may also con- 
 sider the pecuniary benefit which may have been 
 derived from his services. For a poor man, who is 
 unable to pay at all, there may be a general under- 
 standing that the attorney is to be liberally com- 
 pensated in case of success. What is objected to is 
 an agreement to receive a certain part or propor- 
 tion of the sum or subject-matter, in the event of a 
 recovery, and nothing otherwise." 
 • He considers that the practice should be dis- 
 couraged not necessarily on the consideration of 
 unlawfulness but of morality and its effect on the 
 lawyer. 
 
 "It is to be observed, then, that such a contract 
 changes entirely the relation of counsel to the 
 cause. It reduces him from his high position of an 
 officer of the court and a minister of justice, to 
 that of a party litigating his own claim. Having 
 now a deep personal interest in the event of the 
 controversy, he will cease to consider himself sub- 
 ject to the ordinary rules of professional conduct. 
 He is tempted to make success, at all hazards and 
 by all means, the sole end of his exertions. He 
 becomes blind to the merits of the case, and would 
 find it difficult to persuade himself no matter what 
 state of facts might be developed in the progress of 
 the proceedings, as to the true character of the 
 transaction, that it was his duty to retire from it." 
 
 "He has now an interest, which gives him a 
 right to speak as principal, not merely to advise as 
 to the law, and abide by instructions. It is either 
 unfair to him or unfair to the client. If he thinks 
 the result doubtful, he throws all his time, learning, 
 and skill away upon what, in his estimation, is an 
 uncertain chance. He cannot work with the prop- 
 er spirit in such a case. If he believes that the re- 
 sult will be success, he secures in this way a higher 
 compensation than he is justly entitled to receive. 
 
 "It is an undue encouragement to litigation. Men, 
 who would not think of entering on a lawsuit, if 
 they knew that they must compensate their lawyers 
 whether they win or lose, are ready upon such a 
 contingent agreement to try their chances with any 
 kind of a claim. It makes the law more of a lot- 
 tery than it is. 
 
 "The worst consequence is yet to be told, — its ef- 
 fect upon professional character. It turns lawyers 
 into higglers with their clients. Of course it is not 
 meant that these are always its actual results ; but 
 they are its inevitable tendencies, in many instances 
 its practical working. To drive a favorable bar- 
 gain with the suitor in the first place, the difficulties 
 of the case are magnified and multiplied, and ad- 
 vantage taken of that very confidence which led 
 him to intrust his interests to the protection of the 
 advocate. The parties are necessarily not on an 
 equal footing in making such a bargain. A high 
 sense of honor may prevent counsel from abusing 
 his position and knowledge ; but all have not such 
 high and nice sense of honor. If our example goes 
 towards making the practice of agreements for con- 
 tingent fees general, we assist in placing such 
 temptations in the way of our professional brethren 
 of all degrees — the young, the inexperienced, and 
 the unwary, as well as those whose age and expe- 
 rience have taught them that a lawyer's honor is 
 his brightest jewel, and to be guarded from being 
 sullied, even by the breath of suspicion, with the 
 most sedulous care." 
 
 On the same subject Mr. Eli K. Price, in an essay 
 on Limitations and Liens, thus expresses his opin- 
 
 ion: "And further permit me to advise and earnest- 
 ly to admonish you, for the preservation of profes- 
 sional honor and integrity, to avoid the temptation 
 for bargaining for fees or shares of any estate or 
 other claim, contingent upon a successful recovery. 
 The practice directly leads to a disturbance of the 
 peace of society, and to an infidelity to the profes- 
 sional obligation promised to the court, in which is 
 implied an absence of desire or effort of one in the 
 ministry of the temple of justice, to obtain a suc- 
 cess that is not just as well as lawful. It is true, as 
 a just equivalent for many cases honorably ad- 
 vocated and incompetently paid by the poor, a com- 
 pensation may and will be received, the more 
 liberal because of the ability produced by success ; 
 but let it be the result of no bargain, exacted as a 
 price before the service is rendered, but rather the 
 grateful return for benefits already conferred. If 
 rigid in your terms, in protection of the right of the 
 profession to a just and honorable compensation, 
 let it rather be in the amount of the required re- 
 tainer, when it will have its proper influence in the 
 discouragement of litigation." See Champerty. 
 
 "The boundaries of professional privilege and 
 professional obligation are clearly defined and in 
 no way doubtful. Counsel represents the prisoner 
 to defend his rights. In so doing he is bound to 
 exercise competent learning, and to be faithful, 
 vigilant, resolute. But he is at the same time an 
 officer of the court, part of the system which the 
 law provides for the preservation of individual 
 rights in the administration of justice, and bound 
 by his official oath to fidelity as well to the court 
 as to the client. It was well said by the Chief 
 Justice in Com. v. Jongrass, 181 Pa. 172, 37 Atl. 207: 
 'There is no code of professional ethics which is 
 peculiar to the criminal courts. There are no meth- 
 ods of practice to be tolerated there that are not 
 equally entitled to recognition In the civil courts.' 
 The duty of the counsel is to see that his client 
 is tried with proper observance of his legal rights, 
 and not convicted except in strict accordance with 
 law. His duty to his client requires him to do this 
 much, his duty to the court forbids him to do more. 
 An independent and fearless bar is a necessary part 
 of the heritage of a people free by the standards of 
 Anglo-Saxon freedom, and courts must allow a 
 large latitude to the individual judgment of counsel 
 in determining his action, but it must never be 
 lost sight of that there is a corresponding obligation 
 to the court, which is violated by excessive zeal or 
 perverted ingenuity that seeks to delay or evade 
 the due course of legal justice." Com. v. Hill, 185 
 Pa. 387, 39 Atl. 1055, per Mitchell, J. 
 
 In an address of Joseph B. Warner before the 
 American Bar Association (1896) on "The Responsi- 
 bilities of the Lawyer," will be found a discussion 
 of this subject. It is said upon the much-discussed 
 question of how an honorable man can advocate 
 what he knows to be a bad cause, that it is im- 
 portant to look at the profession from the non- 
 professional standpoint, and that the familiar argu- 
 ment that every man has the right to have the law 
 fairly applied to his case is a solution, less satisfac- 
 tory in theory than in practice, of the problem as it 
 confronts the individual lawyer. This assumes the 
 presentation of a' cause by an official spokesman 
 before a competent and impartial tribunal. The 
 theory might fit a mere intermediary in the public 
 function of the administration of justice, but does 
 not answer when, as in modern practice, it concerns 
 the intimate and confidential adviser of the client 
 who is thoroughly identified with the client at the 
 inception and during the preparation for the prog- 
 ress of the trial at every stage. "Such being the 
 lawyer's immersion in his client's cause, it is out of 
 the question to consider him merely as a perfunc- 
 tory representative. His responsibility for litiga- 
 tion in its inception, its progress, and its results, 
 must be, to some extent at least, commensurate 
 with his identification with the cause. If he wholly 
 adopts the client he must acknowledge the relation- 
 ship. This leaves the lawyer's responsibility where 
 he chooses to put it. He may limit it by limiting 
 his relations to those external services which are 
 guardedly professional ; he may, on the other hand.
 
 ETHICS, LEGAL. 
 
 1089 
 
 ETHICS, LEGAL 
 
 enter so far into the case as to become as answer- 
 able for It as the client is, or even more. This is, 
 I think, the position which the lawyer must accept. 
 He cannot make a case his own, and push it as if 
 he were a party, and yet disclaim responsibility for 
 It on the ground that his connection with it is 
 wholly official. He must openly accept the conse- 
 quences of whatever he does, and expect no shelter 
 from any theory of the professional relation which 
 does not squarely recognize all the facts." 
 
 Nor does Mr. Warner consider that the unavoid- 
 able influence of powerful counsel on courts is to be 
 disregarded as a disturbing factor in the cause of 
 Justice. While the danger may be slight as to 
 courts, with juries it is by no means so, and "in 
 proportion as the lawyer purposely carries a jury 
 against the facts, or beyond the facts, so far the 
 verdict is his act. To that responsibility he must 
 be held." The shadowy impression of an obligation 
 to undertake any cause is dismissed as untenable 
 and inconsistent with present conditions. The 
 counsel is in a measure responsible for the cause he 
 has chosen to take. It is true he is not required to 
 settle all doubts against his client, and due regard 
 is to be had for the uncertainty of the law and the 
 unquestioned fact that the lawyer must administer 
 it as it is, and not in each case sit in judgment upon 
 its wisdom or policy. The law, therefore, he does 
 not control, but as to facts there is grave respon- 
 sibility. No special rule can be formulated to dis- 
 tinguish between true and false advocacy, and 
 allowance is to be made for the avowedly partisan 
 attitude of the counsel, but "from a piece of false 
 evidence, or a false statement in argument, every 
 decent lawyer starts back. . . . Certainly nothing 
 could be worse than to give any sanction whatever 
 to a theory which, though never avowed, may some- 
 times be tacitly assumed, that the practice of the 
 law is a game, or a species of warfare, in which 
 there may be a few rules agreed on, but in the 
 main there is but one thing to consider, and that is 
 victory. As in the strange, unethical ethics of war 
 you may not use poisoned bullets, but may use ex- 
 plosive shells, and may not poison the well in the 
 besieged city, but may destroy the provision train 
 on its way thither, so in a court of law, on this 
 monstrous theory, though you may not actually 
 suborn witnesses, you may take advantage of every 
 piece of falsehood which in any other way can pass 
 in, undetected, in evidence or argument. But if law 
 is a game, it is a game in which the stakes are 
 human happiness and character ; if it is war, it is 
 not a war for plunder, but one for principles, which 
 cannot be set up with glory in the end if they have 
 been first defile.d and trampled under foot by the 
 victors." The subject is thus fairly summed up: 
 "At last the moralities of the practice of the law 
 must rest on the individual lawyer, and perhaps 
 little more can be said by way of particular rules 
 for professional conduct than that the lawyer is un- 
 der all the obligations which the highest standard, 
 rightly understood, imposes on any man. From 
 these he neither gets, nor claims, an exemption by 
 reason of any convention which would permit false- 
 hood, nor by reason of working witbiu a system 
 which, to some extent, settles conduct by general 
 rules of law without regard to the moral aspect of 
 particular cases." 
 
 Our system is not devised primarily to discover 
 truth, nor is the lawyer chiefly a searcher after 
 truth. If he were, his methods would seem strange, 
 indeed. Our administration of law is made, or 
 rather has grown, by forces which are virtually the 
 great forces of nature, to meet human needs, to 
 control the elemental passions of men, to regulate 
 the affairs of life. ... It has the imperfections 
 and the contradictions of all human things. It does 
 not always conform to rules, however unquestion- 
 able and right. It touches all of life and takes on 
 both good and evil by the contact. In its critical 
 moments, when it is centred in a trial in court, it 
 is the modern phase of all ancient strife, the visible 
 struggle, old as the world, of all the passions of 
 anger, hate, greed, and avarice, less wild than of 
 old, but still full of their inherited spirit, and now 
 
 Bouv.— 69 
 
 forced into an arena which, excepting war Itself, is 
 left as the only battlefield for the irrepressible 
 fighting instincts of the race. 
 
 That these contests should not always proceed in 
 irreproachable methods and infallibly end in right 
 results, is not to be wondered at: that the men who 
 engage in them as trained contestants sometimes 
 fight with indefensible tactics must be laid to traits 
 which yet survive in the human animal. The vigor- 
 ous participation in affairs, with a purpose to do 
 right, is the most wholesome moral tonic that our 
 nature can have. This way lies open in the practice 
 of the law. It cannot be said to be free from per- 
 plexities. The practitioner will not find himself in 
 a plain way in which the fool cannot err. But he 
 will find himself in the midst of abundant oppor- 
 tunities for service to mankind, will see before him 
 ideals among the highest which our minds can 
 reach, and will have the encouragement of exam- 
 ples which are not behind the farthest mark that 
 human nature has touched in its approach to jus- 
 tice. 
 
 Among numerous works and articles, the follow- 
 ing may be referred to: Virginia State Bar Assoc 
 Reports, 1894 ; Butler, Lawyer & Client, 1871 ; Ea- 
 ton, Public Relations, etc., of the Legal Profes- 
 sion, 1882 ; Hearn, Legal Duties & Rights, 1883 ; 
 Hill, The Bar; Its Ethics, 1881 ; Hoffman, Legal 
 Studies; Pollock, Essays in Jurispr. & Ethio 
 Sedgwick, Relation & Duty of the Lawyer to the 
 State, 1892 ; Warren, Professional Duties. 1870 ; F. 
 C. Brewster's Address before the Phila. Law Acad- 
 emy, 1861 ; Woolworth, Duty, etc., of the Profession, 
 Nebraska State Bar Assoc. 1877 ; Lord Herschell, 
 Rights & Duties of an Advocate, Glasgow Jurid. Soc. 
 1890 ; The Responsibilities of the Lawyer, by Joseph 
 B. Warner, Amer. Bar. Assoc. 1896 ; Henry Wade 
 Rogers, 16 Yale L J. 225. 
 
 Canons of legal ethics have been published 
 by several State Bar Associations. As to 
 the civil law, see Advocatl 
 
 EUGENICS. Acts forbidding marriage 
 except upon proof of the good health of one 
 or both of the parties have recently been 
 passed in a few states. The Wisconsin act 
 has been declared invalid in an unreported 
 case. 
 
 EUNDO, MORANDO ET REDEUNDO 
 
 (Lat). This Latin phrase signifies going, 
 remaining, and returning. It is employed in 
 cases where a person is privileged from ar- 
 rest, in order to give him the freedom neces- 
 sary to the performance of his respective ob- 
 ligations, to signify that he is protected from 
 arrest cundo, morando ct redcundo. 
 
 EUNOMY. Equal laws and a well-adjust- 
 ed constitution of government. 
 
 EVASION (Lat evadcre, to avoid). A 
 subtle device to set aside the truth or es- 
 cape the punishment of the law : as, if a 
 man should tempt another to strike him 
 first, in order that he might have an oppor- 
 tunity of returning the blow with impuni- 
 ty, lie is, nevertheless, punishable, because 
 he becomes himself the in such a 
 
 case. Hawk. PI. Cr. c. 31, §S 24, 25; Bac. 
 Abr. Fraud, A. 
 
 EVENT. The consequences of anything, 
 the issue, conclusion, end ; that in which an 
 action, operation, or series of operations, 
 terminates. Fitch v. Bates, 11 Barb. (N. Y.) 
 •173.
 
 EVERY 
 
 1000 
 
 EVICTION 
 
 EVERY. All the separate individuals who 
 constitute the whole regarded one by one. 
 State v. Penny, 19 S. C. 221. See All. 
 
 EVICTION. Deprivation of the possession 
 of lands or tenements. 
 
 Originally and technically, the disposses- 
 sion must be by judgment of law; if other- 
 wise, it was an ouster; Lansing v. Van Al- 
 styne, 2 Wend. (N. Y.) 563, note; Webb v. 
 Alexander, 7 Wend. (N. Y.) 2S5; but the ne- 
 cessity of legal process was long ago aban- 
 doned in England; 4 Term 617; and in this 
 country also it is settled that there need 
 not be legal process ; Green vault v. Davis, 4 
 Hill (N. Y.) 645; Grist v. Hodges, 14 N. C. 
 200; Green v. Irving, 54 Miss. 450, 28 Am. 
 Rep. 360. • The word is difficult to define with 
 technical accuracy ; 17 C. B. 30 ; but it may 
 be fairly stated that any actual entry and 
 dispossession, adversely and lawfully made 
 under pai-amount title, will be an eviction; 
 Rawle, Cov. § 133. 
 
 Total eviction takes place when the pos- 
 sessor is wholly deprived of his rights in the 
 premises. Partial eviction takes place when 
 the possessor is deprived of only a portion of 
 them ; as, if a third person comes in and 
 ejects him from the possession of half his 
 land, or establishes a right to some ease- 
 ment over it, by a title which is prior to 
 that under which he holds. 
 
 With respect to the demised premises, an 
 eviction consists in taking from a tenant 
 some part of the premises of which he was 
 in possession, not in refusing to put him in 
 possession of something which by the agree- 
 ment with his landlord he should have en- 
 joyed ; Etheridge v. Osborn, 12 Wend. (N. 
 Y.) 529. And in order to effect a suspension 
 of rent there must be something equivalent 
 to an expulsion from the premises, and not a 
 mere trespass, or disturbance in the enjoy- 
 ment of them ; Allen v. Pell, 4 Wend. (N. Y.) 
 505; City of New York v. Price, 5 Sandf. 
 (N. Y.) 542; T. Jones 148; Nelson v. Allen, 1 
 Yerg. (Tenn.) 379; Bartlett v. Farrington, 
 120 Mass. 284. The entry of a landlord up- 
 on demised premises for the purpose of re- 
 building does not operate as an eviction, 
 where it was with the tenant's assent and 
 not to his entire seclusion ; Heller v. Ins. 
 Co., 151 Pa. 101, 25 Atl. 83. 
 
 It is not necessary, however, in order to 
 produce the eviction of a tenant, that there 
 should be an actual physical expulsion ; for 
 a landlord may do many acts tending to di- 
 minish the enjoyment of the premises, short 
 of an expulsion, which will amount to an 
 eviction in law : as if he intentionally dis- 
 turb the tenant's enjoyment to such an ex- 
 tent as to injure his business or destroy the 
 comfort of himself and family, or render 
 the premises unfit for the purposes for which 
 they were leased, it will amount to an evic- 
 tion; Dyett v. Pendleton, 8 Cow. (N. Y.) 
 727 ; Edmison v. Lowry, 3 S. D. 77, 52 N. W. 
 
 583, 17 L. R. A. 275, 44 Am. St. Rep. 774; 
 Duff v. Hart, 16 N. Y. Supp. 163; O'Neill v. 
 Manget, 44 Mo. App. 279; Hoeveler v. Flem- 
 ing, 91 Pa. 322; Royce v. Guggenheim, 106 
 Mass. 201, 8 Am. Rep. 322 ; Alger v. Kennedy, 
 49 Vt. 109, 24 Am. Rep. 117 ; Wade v. Herndl, 
 127 Wis. 544, 107 N. W. 4, 5 L. R. A. (N. S.) 
 855, 7 Ann. Cas. 591. 
 
 Constructive eviction may arise from any 
 wrongful act of the lessor which deprives 
 the tenant of the full enjoyment of the leas- 
 ed premises : as, by forbidding an under- 
 tenant to pay rent to the tenant ; Leadbeater 
 v. Roth, 25 111. 587 ; building a fence in front 
 of the premises to cut off the tenant's access 
 thereto; see Boston & W. R. Co. v. Ripley, 
 13 Allen (Mass.) 421; erecting a permanent 
 structure which renders unfit for use two 
 rooms ; Royce v. Guggenheim, 106 Mass. 201, 
 8 Am. Rep. 322; refusal to do an act indis- 
 pensably necessary to enable the tenant to 
 carry on the business for which the prem- 
 ises were leased : as, when premises were 
 let for a grog-shop, the landlord refused to 
 sign the necessary documents required by 
 statute to enable the tenant to obtain a li- 
 cense; Grabenhorst v. Nicodemus, 42 Md. 
 236; contra, Kellogg v. Lowe, 38 Wash. 293, 
 80 Pac. 458, 70 L. R. A. 510 ; also where les- 
 sor tears down an adjoining building, mak- 
 ing it evident that lessee's building would 
 fall; Snow v. Pulitzer, 142 N. Y. 263, 36 N. 
 E. 1059. And when a landlord, who owned 
 another building adjoining that occupied by 
 a tenant, the two being constructed together, 
 tore the former down, rendering the latter 
 unsafe for occupancy, and then procured its 
 condemnation and destruction by the city 
 authorities, these acts constituted an evic- 
 tion; Silber v. Larkin, 94 Wis. 9, 68 N. W. 
 406. So also failure to furnish elevator 
 service to an office building; McCall v. Ins. 
 Co., 201 Mass. 223, 87 N. E. 582, 21 L. R. A. 
 (N. S.) 38; Lawrence v. Marble Co., 1 Misc. 
 105, 20 N. Y. Supp. 698; Ess-Eff Realty Co. 
 v. Buttenheim. 125 N. Y. Supp. 401 ; and such 
 failure together with a failure to heat the 
 premises; Minneapolis Co-Operative Co. v. 
 Williamson, 51 Minn. 53, 52 N. W. 986, 38 
 Am. St. Rep. 473 ; leasing part of a building 
 to an automobile company whose work caus- 
 ed vibrations, to the disturbance of an artist; 
 Wade v. Herndl, 127 Wis. 544, 107 N. W. 4, 
 5 L. R. A. (N. S.) 855, 7 Ann. Cas. 591; rent- 
 ing a floor to lewd and disorderly persons; 
 Lay v. Bennett, 4 Colo. App. 252, 35 Pac. 748 ; 
 renting a lower floor for a laundry, as 
 against a florist on an upper floor; Duff v. 
 Hart, 16 N. Y. Supp. 163 ; or for a noisy and 
 disorderly saloon; Halligan v. Wade, 21 111. 
 470, 74 Am. Dec. 108; permitting rats and 
 offensive odors in a part of a building ; Bar- 
 nard Realty Co. v. Bonwit, 155 App. Div. 
 182, 139 N. Y. Supp. 1050. 
 
 But a mere .failure of the landlord to make 
 repairs, although such act may cause the
 
 EVICTION 
 
 1091 
 
 TION 
 
 place to be untenantable, will not amount to 
 an eviction; Coddington v. Dunham, 35 N. 
 Y. Super. Ct. 412; Bussman v. Ganster, 72 
 Pa. 285. See Alger v. Kennedy, 49 Vt. 109, 
 24 Am. Rep. 117. Nor the presence of ver- 
 min ; Jacobs v. Morand, 59 Misc. 200, 110 
 N. Y. Supp. 208. If the objectionable acts 
 are done on an adjoining property it is not 
 eviction; Solomon v. Fantozzi, 4:; Misc. 61, 
 86 N. Y. Supp. 754; Kellogg v. Lowe, 38 
 Wash. 293, 80 Pac. 458, 70 L. R. A. 510; 
 Cray v. Gaff, 8 Mo. App. 329. 
 
 The doctrine of constructive eviction 
 amounts only to a right to abandon the 
 premises; it is not a defence against an ac- 
 tion for rent when the tenant waives the 
 eviction and remains in possession ; Edger- 
 ton v. Page, 20 N. Y. 281. 
 
 The ownership of adjacent premises, and 
 the doing of an act, solely as owner of such 
 premises, which injures a tenant's use of his 
 land, do not infringe a right of the tenant 
 and will not amount to a constructive evic- 
 tion; Palmer v. Wetmore, 2 Saudf. (N. Y.) 
 31G; Solomon v. Fantozzi, 43 Misc. 61, 86 N. 
 Y. Supp. 754; Kellogg v. Lowe, 38 Wash. 
 293, 80 Pac. 458, 70 L. R. A. 510; Gray v. 
 Gaff, 8 Mo. App. 329. 
 
 The remedy for an eviction depends chief- 
 ly upon the covenants in the deed under 
 which the party held. When the grantee 
 suffers a total eviction, if he has a covenant 
 of seisin or for quiet enjoyment, he recovers 
 from the grantor the consideration-money 
 which he paid for the land, with interest, 
 and not the enhanced value of the premises, 
 whether such value has been created by the 
 expenditure of money in improvements there- 
 on, or by any other more general cause; 
 Kinney v. Watts, 14 Wend. (N. Y.) 38; Mar- 
 ston v. Hobbs, 2 Mass. 433, 3 Am. Dec. 61. 
 And this seems to be the general rule; Ben- 
 net v. Jenkins, 13 Johns. (N. Y.) 50; Bender 
 v. Fromberger, 4 Dall. (U. S.) 441, 1 L. Ed. 
 SOS; Talbot v. Bedford's Heirs, Cooke 
 (Tenn.) 447; Lowther v. Com., 1 Hen. & M. 
 I Va.i 202; Stewart v. Drake, 9 N. J. L. 139; 
 Cox's Heirs v. Strode, 2 Bibb (Ky.) 273, 5 
 Am. Dec. 603. 
 
 With respect to a lessee, however, who 
 pays no purchase-money, the rule of dam- 
 ages upon an eviction is different; for he 
 recovers nothing, except such expenses as 
 he has been put to in defending his posses- 
 sion; and as to any improvements he may 
 have made upon the premises, he stands up- 
 on the same general footing with a purchas- 
 er. The rents reserved in a lease, where no 
 other consideration is paid, are regarded as 
 a just equivalent for the use of the demised 
 premises. Dpon an eviction the rent 
 and the lessee is thereby relieved from a 
 burden which must be deemed equal to the 
 benefit he would have derived from the con- 
 tinued enjoyment of the property; Kelly v. 
 Dutch Church. 2 Hill (N. Y.) 105; The Rich- 
 mond v. Cake, 1 App. D. C. 447; Holmes v. 
 
 Guion, 44 Mo. 1G4 ; Alger v. Kennedy, 49 Vt. 
 
 109, 24 Am. Hep. 117; McClurg v. Pri 
 
 Pa. 420, 98 Am. Dec. 350; Leadbeater v. 
 
 Roth, 25 111. 587. It is no defence, ho? 
 
 to an action for rent which was due at the 
 
 time of the eviction; Johnson v. 
 
 Misc. 307, 28 N. Y. Supp. 728. 
 
 When the eviction is only partial, the dam- 
 ages to be recovered under the co 1 
 seisin are a ratable part of the original price, 
 and they are to bear the same ratio I 
 whole consideration that the value of the 
 land to which the title has ; rs to 
 
 the value of the whole tract. The eonl 
 is not rescinded, so as to entitle the \. 
 to the whole consideration-money, but only 
 to the amount of the relative value <>f the 
 part lost; Guthrie v. Pagsley, 12 Johns. (N. 
 Y.i 126; 4 Kent 462. See 6 Baa Abr. 11; 1 
 Saund, 204, 322a; Colburn v. Morrill, 117 
 Mass. 262, 19 Am. Rep. 415; Tunis v. Grandy, 
 It. i Va. i 109; Hunter v. Reiley, 43 N. 
 J. L. 480; Heme Life Ins. Co. v. Sherman, 46 
 N. Y. 37ii. See Ml LSI BX of Damages. 
 
 EVIDENCE. That which tends to prove 
 or disprove any matter in question, or to In- 
 fluence the belief respecting it. Belief is 
 produced by the consideration of something 
 presented to the mind. The matter thus pre- 
 sented, in whatever shape it may come, and 
 through whatever material organ it is de- 
 rived, is evidence. Frof. Parket, Lectures on 
 Medical Jurisprudence, id Dartmouth Col- 
 lege. 
 
 The word evidence, in legal acceptation, 
 includes all the means by which any alleged 
 matter of fact, the truth of which is submit- 
 ted to investigation, is established or dis- 
 proved. 1 Greenl. Ev. c. I. § 1 ; Will. (Mr. Kv. 
 1. Testimony is not synonymous with evi- 
 dence; Harvey v. Smith, 17 Ind. 272; the 
 latter is the more comprehensive term; 
 Whart Cr. L. § 783; and includes all that 
 may be submitted to the jury whether it be 
 the statement of witnesses, or the contents 
 of papers, documents, or records, or the in- 
 on of whatever the jury may he per- 
 mitted to examine and consider during the 
 trial; Will, Cir. Kv. 2; Jones v. Gregory, 4S 
 111. App. 230. 
 
 The means sanctioned by law of 
 taining in a judicial proceeding the truth re- 
 specting a question of fact. Cal Code Civ. 
 Proc. § 1823. Ami the law of evhh I 
 declared to be a collection of general rules 
 established by law : 
 
 1. For declaring what Is to be tak< 
 true without pi 
 
 2. For declaring the presumptions of law. 
 both disputable and conclusive. 
 
 3. For the production of legal evidence. 
 
 4. For the exclusion of what is not 
 
 5. For determining iu certain cases the 
 value and effect of evidence. /(/. § l l 
 
 "The rules of evidence." says a discrimi- 
 nating writer, "are the maxims which th«
 
 EVIDENCE 
 
 1092 
 
 EVIDENCE 
 
 sagacity and experience of ages hare estab- 
 lished, as the best means of discriminating 
 truth from error, and of contracting as far 
 as possible the dangerous power of judicial 
 discretion." Will, Cir. Ev. 2. 
 
 That which is legally submitted to a jury, 
 to enable them to decide upon the questions 
 in dispute, or issue, as pointed out by the 
 pleadings, and distinguished from all com- 
 ment and argument, is termed evidence. 1 
 Stark. Ev. pt. 1, § 3. 
 
 Evidence may be considered with refer- 
 ence to its instruments, its nature, its legal 
 character, its effect, its object, and the modes 
 of its introduction. 
 
 The instruments of evidence, in the legal 
 acceptation of the term, are: 
 
 1. Judicial notice or recognition. There 
 are divers things of which courts take ju- 
 dicial notice, without the introduction of 
 proof by the parties : such as the territorial 
 extent of their jurisdiction, local divisions 
 of their own countries, seats of courts, all 
 public matters directly concerning the gen- 
 eral government, the ordinary course of na- 
 ture, divisions of time, the meanings of 
 words, and, generally, of whatever ought to 
 be generally known in the jurisdiction. If 
 the judge needs information on subjects, he 
 will seek it from such sources as he deems 
 authentic. See Judicial Notice. 
 
 2. Public records; the registers of official 
 transactions made by officers appointed for 
 the purpose ; as, the public statutes, the judg- 
 ments and proceedings of courts, etc. 
 
 3. Judicial writings: such as inquisitions, 
 depositions, etc. 
 
 4. Public documents having a semi-official 
 character: as, the statute-books published 
 under the authority of the government, doc- 
 uments printed by the authority of congress, 
 etc. 
 
 5. Private writings: as, deeds, contracts, 
 wills. 
 
 6. Testimony of witnesses. 
 
 7. Peisonal inspection, by the jury or tri- 
 bunal whose duty it is to determine the 
 matter in controversy: as, a view of the 
 locality by the jury, to enable them to de- 
 termine the disputed fact, or the better to 
 understand the testimony, or inspection of 
 any machine or weapon which is produced 
 in the cause. 
 
 Real evidence is evidence of the thing or 
 object which is produced in court. When, 
 for instance, the condition or appearance of 
 any thing or object is material to the issue, 
 and the thing or object itself is produced in 
 court for the inspection of the tribunal, with 
 proper testimony as to its identity, and, if 
 necessary, to show that it has existed since 
 the time at which the issue in question arose, 
 this object or thing becomes itself "real evi- 
 dence" of its condition or appearance at the 
 time in question. 1 Greenl. Ev. § 13 a, note. 
 For a full discussion of this species of evi- 
 
 dence, see Gaunt v. State, 50 N. J. L. 491, 
 14 Atl. GOO. 
 
 There are rules prescribing the limits and 
 regulating the use of these different instru- 
 ments of evidence, appropriate to each class. 
 In its nature, evidence is direct, or pre- 
 sumptive, or circumstantial. 
 
 Direct evidence is that means of proof 
 which tends to show the existence of a fact 
 in question, without the intervention of the 
 proof of any other fact. 
 
 It is that evidence which, if believed, es- 
 tablishes the truth of a fact in issue, and 
 does not arise from any presumption. Evi- 
 dence is direct and positive when the very 
 facts in dispute are sworn to by those who 
 have the actual knowledge of them by means 
 of their senses. 1 Stark. Ev. 19; Tayl. Ev. 
 84. In one sense, there is but little direct 
 or positive proof, or such proof as is acquir- 
 ed by means of one's own sense; all other 
 evidence is presumptive ; but, in common ac- 
 ceptation, direct and positive evidence is 
 that which is communicated by one who has 
 actual knowledge of the fact. 
 
 Extrinsic evidence is external evidence, or 
 that which is not contained in the body of 
 an agreement, contract, and the like. 
 
 It is a general rule that extrinsic evidence 
 cannot be admitted to contradict, explain, 
 vary, or change the terms of a contract or 
 of a will, except in a latent ambiguity, or 
 to rebut a resulting trust; Mann v. Mann, 
 14 Johns. (N. Y.) 1, 7 Am. Dec. 416; Spald- 
 ing v. Huntington, 1 Day (Conn.) 8. Ex- 
 cepting where evidence is admissible to vary 
 a written contract on the ground that it does 
 not represent the actual contract between 
 the parties. See Wigram, Extrinsic Evi- 
 dence; 14 L. R. A. 459, note. 
 
 Presumptive evidence is that which shows 
 the existence of one fact, by proof of the 
 existence of another or others, from which 
 the first may be inferred; because the fact 
 or facts shown have a legitimate tendency 
 to lead the mind to the conclusion that the 
 fact exists which is sought to be proved. 
 
 Presumptive evidence has been divided 
 into presumptions of law and presumptions 
 of fact. 
 
 Presumptions of law, adopted from mo- 
 tives of public policy, are those which arise 
 in certain eases by force of the rules of law, 
 directing an inference to be drawn from 
 proof of the existence of a particular fact 
 or facts. They may be conclusive or in- 
 conclusive. 
 
 Conclusive presumptions are those which 
 admit of no averment or proof to the con- 
 trary. Thus, the records of a court, except 
 in some proceeding to amend them, are con- 
 clusive evidence of the matter there record- 
 ed, being presumed to be rightly made up. 
 
 Inconclusive or disputable presumptions 
 of law are those where a fact is presumed 
 to exist, either from the general experience
 
 EVIDENCE 
 
 1093 
 
 EVIDENCE 
 
 of mankind, or from policy, or from proof 
 of the existence of certain other facts, until 
 something is offered to show the contrary. 
 Thus, the law presumes a man to be sane 
 until the contrary appears, and to be inno- 
 cent of the commission of a crime until he 
 is proved to be guilty. So, the existence 
 of a person, or of a particular state of things, 
 being shown, the law presumes the person or 
 state of things to continue until something 
 is offered to conflict with the presumption. 
 See Best, Presumption, ch. ii. 
 
 But the presumption of life may be rebut- 
 ted by another presumption. Where a party 
 has been absent from his place of residence 
 for the term of seven years, without having 
 been heard of, this raises a presumption of 
 his death, until it is encountered by some ev- 
 idence showing that he is actually alive, or 
 was so within that period. 
 
 Presumptions of fact are not the subject 
 of fixed rules, but are merely natural pre- 
 sumptions, such as appear, from common 
 experience, to arise from the particular cir- 
 cumstances of any case. Some of these are 
 "founded upon a knowledge of the human 
 character, and of the motives, passions, and 
 feelings by which the mind is usually influ- 
 enced." 1 Stark. Ev. 27. 
 
 They may be said to be the conclusions 
 drawn by the mind from the natural con- 
 nection of the circumstances disclosed in 
 each case, or, in other words, from circum- 
 stantial evidence. 
 
 Circumstantial evidence is the proof of 
 facts which usually attend other facts sought 
 to be proved ; that which is not direct evi- 
 dence. For example, when a witness testi- 
 fies that a man was stabbed with a knife, 
 and that a piece of the blade was found in 
 the wound, and it is found to fit exactly with 
 another part of the blade found in the pos- 
 session of the prisoner, the facts are direct- 
 ly attested, but they only prove circumstanc- 
 es; and hence this is called circumstantial 
 evidence. 
 
 Circumstantial evidence is of two kinds, 
 namely, certain and uncertain. It is certain 
 when the conclusion in question necessarily 
 follows : as, where a man had received a 
 mortal wound, and it was found that the im- 
 pression of a bloody left hand had been made 
 on the left arm of the deceased, it was cer- 
 tain some other person than the deceased 
 must have made such mark ; 14 How. St. Tr. 
 1334. But it is uncertain whether the death 
 was caused by suicide or by murder, and 
 whether the mark of the bloody ha ml was 
 made _ by the assassin, or by a friendly hand 
 that came too late to the relief of the de- 
 ceased. 
 
 Circumstantial evidence warrants a convic- 
 tion in a criminal case, provided it is such 
 as to exclude every reasonable hypothesis 
 but that of guilt of the offence charged to 
 the defendant, but it must always rise to that 
 degree of convincing power which satisfies the 
 
 mind beyond reasonable doubt of guilt This 
 can never be the case when the evidence, as 
 produced, is entirely consistent with innocence 
 in a given transaction; Hayes v. 0. S.. 169 
 Fed. 101, 94 C. C. A. 4 19. When the evidence 
 can be reconciled either with the theory of 
 innocence or of guilt, the law requires that 
 the defendant be given the benefit of the 
 doubt and that the theory of. innocence be 
 adopted; Vernon v. r. S., 14*", Fed. 12 
 C. C. A. 547, citing People v. Ward, MX 
 335, 38 Pac. 945; Asbach v. Ry. Co., 74 la. 
 248, 37 N. W. 182; Smith v. Bank, 99 
 005, 97 Am. Dec. 59. It is not a question of 
 the weakest link of a chain, but the weakest 
 strand of a rope cable; Ex parte Hayes, 6 
 Okl. Cr. 321, 118 Pac. 009. 
 
 While it has thus been contended that, in 
 order to justify the inference of legal guilt 
 from circumstantial evidence, the existence 
 of the inculpatory facts must be absolutely 
 incompatible with the innocence of the ac- 
 cused; Wills, Cir. Ev. 300; Stark. Ev. 100; 1 
 Crim. L. Mag. 234 ; State v. Miller. 9 Houst 
 (Del.) 564, 32 Atl. 137; other writers have 
 held that the distinction between this species 
 of evidence and that which is direct is mere- 
 ly one of logic, and of no practical signifi- 
 cance; that all evidence is more or less cir- 
 cumstantial; all statements of witnesses, all 
 conclusions of juries, are the results of in- 
 ference; or as it was expressed by GibsoD, 
 C. J., "the difference being only in degree:" 
 Com. v. Harman, 4 Pa. 209. See U. S. v. 
 Gibert, 2 Sumn. 27, Fed. Cas. No. 15,204; 
 Com. v. Harman. 4 Pa. 209; WharL Cr. Ev. 
 § 10. Even in its strictest sense, circumstan- 
 tial evidence is legal evidence, and when 
 it is satisfactory beyond reasonable doubt, a 
 jury is bound to act upon it as if it were the 
 most direct; 1 Greenl. Ev. § 13; 3 Rice, Ev. 
 544. See Circumstances; Evidence. 
 
 Circumstantial evidence is sometimes used 
 as synonymous with presumptive evidence, 
 but not with strict accuracy: for presump- 
 tive evidence is not necessarily and in all 
 cases what is usually understood by circum- 
 stantial evidence. The latter is that evi- 
 dence which tends to prove a disputed Cad 
 by proof of other facts which have a legiti- 
 mate tendency, from the laws oT nature, the 
 usual connection of things, and the ordinary 
 transactions of business, etc., to lead the 
 mind to a conclusion that the fact exists 
 which is sought to be established. See 1 
 Stark. Ev. 478; Whart Ev. l, 2. 15. 
 
 A writer on this subject, already quoted, 
 thus states the distinction: the word pre- 
 sumption, ex vi termini, imports an Infet 
 from facts known, based upon previous ex- 
 perience of the ordinary connection between 
 the two. and. the word itself implies a cer- 
 tain relation between fact and inference. 
 Circumstances, however, generally but not 
 irily lead to particular inferences; for 
 the facts may he indisputable, and yet their 
 relation to the principal fact may be only
 
 EVIDENCE 
 
 1094 
 
 EVIDENCE 
 
 apparent, not real ; and even where the con- 
 nection is real, the deduction may be errone- 
 ous. Circumstantial and presumptive evi- 
 dence differ therefore as genus and species. 
 Will, Cir. Ev. 17. 
 
 Presumptive evidence may sometimes be 
 the result, to some extent, of any arbitrary 
 rule— as in the case of the presumption of 
 death after an absence of seven years with- 
 out being heard of— derived by analogy from 
 certain statutes. 
 
 The judge aud the jury draw cbnclusions 
 from circumstantial evidence, and find one 
 fact from the existence of other facts shown 
 to them, — some of the presumptions being 
 so clear and certain that they have become 
 fixed as rules of law, and others having 
 greater or less weight according to the cir- 
 cumstances of the case, leaving the matter 
 of fact inquired about in doubt until the 
 proper tribunal to determine the question 
 draws the conclusion. 
 
 In its legal character, evidence is primary 
 or secondary, and prima facie or conclusive. 
 Primary evidence is the best evidence, or 
 that proof which most certainly exhibits the 
 true state of facts to which it relates. The 
 law requires this, and rejects secondary or 
 inferior evidence when it is attempted to be 
 substituted for evidence of a higher or su- 
 perior nature. For example, when a written 
 contract has been entered into, and the ob- 
 ject is to prove what it was, it is requisite 
 to produce the original writing, if it is to be 
 attained ; and in that case no copy or other 
 inferior , evidence will be received. 
 
 This is a rule of policy, grounded upon a 
 reasonable suspicion that the substitution of 
 inferior for better evidence arises from sin- 
 ister motives, and an apprehension that the 
 best evidence, if produced would alter the 
 case to the prejudice of the party. This rule 
 relates not to the measure and quantity of 
 evidence, but to its quality when compared 
 with some other evidence of superior degree. 
 To this general rule there are several ex- 
 ceptions. 1. As it refers to the quality 
 rather than to the quantity of evidence, it 
 is evident that the fullest proof that every 
 case admits of is not requisite : if, therefore, 
 there are several eye-witnesses to a fact, it 
 may be sufficiently proved by one only. 2. 
 It is not always requisite, when the matter 
 to be proved has been reduced to writing, 
 that the writing should be produced: as, if 
 the narrative of a fact to be proved has been 
 committed to writing, it may yet be proved 
 by parol evidence. A receipt for the pay- 
 ment of money, for example, will not ex- 
 clude parol evidence of payment; 4 Esp. 
 213. And see 3 B. & Aid. 566; Meade v. 
 Keane, 3 Cra. C. C. 51, Fed. Cas. No. 9,373 ; 
 Bonesteel v. Gardner, 1 Dak. 372, 46 N. W. 
 590 ; Chapin v. Dobson, 78 N. Y. 82, 34 Am. 
 Rep. 512. The evidence of a father and 
 mother, cognizant of their child's birth, is 
 primary evidence of its date or the age of 
 
 the child, although there is a written record 
 thereof in the family Bible ; State v. Woods, 
 49 Kan. 237, 30 PaTc. 520; Hawkins v. Taylor, 
 1 McCord (S. C.) 164; Hermann v. State, 73 
 Wis. 248, 41 N. W. 171, 9 Am. St. Rep. 789. 
 A stenographer's notes of the testimony of a 
 witness are not the best evidence of such 
 testimony, so as to prevent any other person 
 who was present from testifying in relation 
 thereto; Brice v. Miller, 35 S. C. 537, 15 S. 
 E. 272; Nasanowitz v. Hanf, 17 Misc. 157, 
 39 N. Y. Supp. 327. Documentary evidence 
 is not the best evidence of marriage ; People 
 v. Perriman, 72 Mich. 184, 40 N. W. 425. 
 Oral admissions of a party against himself 
 as to the contents of a writing are primary 
 evidence; Morey v. Hoyt, 62 Conn. 542, 26 
 Atl. 127, 19 L. R. A. 611. 
 
 Secondary evidence is that species of proof 
 which is admissible when the primary evi- 
 dence cannot be produced, and which be- 
 comes by that event the best evidence that 
 can be adduced. Armstrong's Lessee v. Mor- 
 gan, 3 Yeates (Pa.) 530. 
 
 But before such evidence can be allowed 
 it must be clearly made to appear that the 
 superior evidence is not to be had; Phillips 
 v. O'Neal, 87 Ga. 727, 13 S. E. 819 ; Curtis v. 
 Wilcox, 91 Mich. 229, 51 N. W. 992. The 
 person who possesses it must be applied to, 
 whether he be a stranger or the opposite 
 party : in the case of a stranger, a subpoena 
 and attachment, when proper, must be taken 
 out and served ; and in the case of a party, 
 notice to produce such primary evidence 
 must be proved before the secondary evi- 
 dence will be admitted; Patton's Adm'rs v. 
 Ash, 7 S. & R. (Pa.) 116; 3 B. & Aid. 296; 
 Susquehanna & W. V. R. & Coal Co. v. Quick, 
 61 Pa. 328; Gallagher v. Assur. Corp., 149 
 Pa. 25, 24 Atl. 115; King Optical Co. v. 
 Treat, 72 Mich. 599, 40 N. W. 912; 7 Exch. 
 639; Louisville & N. R. Co. v. Orr, 94 Ala. 
 602, 10 South. 167; De Barie v. Pardo, 6 
 Sadler (Pa.) 148, 8 Atl. 876, where this rule 
 is discussed at large by Arnold, J., whose 
 views were affirmed without an opinion. "If 
 there are several sources of information of 
 the same fact, it is not ordinarily necessary 
 to show that all have been exhausted before 
 secondary evidence can be resorted to." 
 Smith v. Brown, 151 Mass. 338, 24 N. E. 31. 
 See Kleimann v. Geisehnann, 45 Mo. App. 
 497; McCormick v. Anderson, 83 Ala. 401, 3 
 South. 796 ; McClure v. Campbell, 25 Neb. 57, 
 40 N. W. 595. Secondary evidence of the 
 contents of a written contract is inadmissi- 
 ble in the absence of proper diligence to se- 
 cure the original ; Low v. Tandy, 70 Tex. 
 745, 8 S. W. 620; Whaun & Co. v. Atkinson, 
 84 Ala. 592, 4 South. 681. After proof of the 
 due execution of the original, the contents 
 should be proved by a counterpart, if there 
 be one, for this is the next best evidence; 
 and it seems that no evidence of a copy is 
 admissible until proof has been given that 
 the counterpart cannot be proddced ; 6 Term
 
 EVIDENCE 
 
 1095 
 
 EVIDENCE 
 
 23G. If there be no counterpart, a copy may 
 be proved in evidence by any witness who 
 knows tbat it is a copy, from having com- 
 pared it with the original; Meyer v. Barker, 
 6 Binn. (Pa.) 2?A ; Buttrick v. Allen, S Mass. 
 273, 5 Am. Dec. 105. If regularly re© 
 an office copy may be given in evidence. If 
 there be no copy, the party may produce an 
 abstract, or even give parol evidence of the 
 contents of a deed ; 6 Term 550. A tran- 
 scribed telegraphic message which is actually 
 delivered is primary evidence, and if lost or 
 destroyed its contents may be proved by 
 parol; Magie v. Herman, 50 Minn. 424, 52 N. 
 W. 909, 36 Am. St. Kep. GOO. See Terre 
 Haute & I. R. Co. v. Stockwell, 118 Ind. 9S, 
 20 N. E. 650; Anheuser-Busch En-wing Co. 
 v. Hutmaeher, 127 111. 652, -2\ X. E. «:im. 4 
 L. R. A. 575. Letterpress copies of writings 
 are secondary evidence ; Tbompson-Houston 
 Electric Co. V. Berg, 10 Tex. Civ. App. 200, 
 30 S. W. 454 ; and where there were sucb, 
 next to the originals, they were the best evi- 
 dence and oral evidence should have been re- 
 jected; Eord v. Cunningham, S7 Cal. 209, 25 
 Pac. 403 ; and as to copies of documents 
 made by mechanical ineaus, as originals, see 
 12 L. R. A. (N. S.) 343, note. 
 
 If books or papers necessary as evidence 
 in the courts of one state be in the posses- 
 sion of a person living in another state, 
 secondary evidence without further show- 
 ing may be given to prove the contents of 
 such papers, and notice to produce them is 
 unnecessary; Burton v. Driggs, 20 Wall. (U. 
 S.) 125, 22 L. Ed. 299. See Thomson-Hous- 
 ton Electric Co. v. Palmer, 52 Minn. 174, 53 
 N. W. 1137, 38 Am. St. Rep. 536. Where the 
 attesting witness to a deed lives out of the 
 state, secondary evidence of its execution is 
 admissible ; Trustees of Smith Charities v. 
 Connolly, 157 Mass. 272, 31 N. E. 1058. 
 
 It has been decided in England that there 
 are no degrees in secondary evidence; and 
 when a party has laid the foundation for 
 such evidence, he may prove the contents 
 of a deed by parol, although it appear that 
 an attested copy is in existence ; 6 C. & P. 
 206; 8 id. 3S9 ; 7 M. & W. 102. It is urged 
 on the one hand that the rule requiring the 
 best evidence has reference to its nature, not 
 to its strength, and the argument ab incon- 
 venient i is invoked against the extension of 
 the rule recognizing degrees. On the other 
 hand it is contended that such an extension 
 is an equitable one and rests on the same 
 principle which forbids the introduction of 
 any secondary evidence while the primary 
 is available. English cases cited in favor 
 of the recognition of degrees are said to be 
 not so much decisions of the point as dicta, 
 as they refer to it as a rule existing but not 
 involved in the case; 2 Atk. 71; 1 Nev. & 
 Per. 8. But in the latter case the rule is 
 doubted, and in 6 C. & P. 359 impliedly de- 
 nied by Patteson, J., as it is also by Parke. 
 J. ; 6 C. & P. 81 ; id. 206. See 8 Dowl. 3S9 ; 
 
 t, N. P. 577. The question is not set- 
 tled in the United States; Greenl. Ev. § 84, 
 note; and the United States Supreme Court, 
 declining to adopt the English rule without 
 qualification, observe that the secondary evi- 
 'must be the best the party has in his 
 power to produce" and also (hat the rule of 
 exclusion or admission must be bo appl 
 to promote the ends of justi guard 
 
 against fraud, surprise, and i; 
 nett v. Williams, -J<> Wall. ( i . 22 E. 
 
 Ed. 254. This doctrine was followed in 
 Johnson v. Arnwine, 4ii X. J. E. 458, 86 'Am. 
 Pep. 532; Jaques v. Borton, To a 'a. 246. 
 See Kentzler v. Kentzler, o Wash. I 
 
 ;T0, 28 Am. St. Rep. 21; Florida Cent. 
 & P. R. Co. v. Bud<i, 68 I'd. 864, 16 I 
 42. The American doctrine seems to be "that 
 if from the nature of the case itself it is 
 manifest that a more E 
 secondary evidence exists, the party will be 
 required to produce it; but tbat when the 
 nature of the case does not of itself disclose 
 the existence of such better evidt n e, the 
 objector must not only prove its existence, 
 but also must prove that it was known to 
 the other party in time to have been pro- 
 duced, at the trial;" 1 Gr. Ev. § 84, note; 
 Lewis v. San Antonio, 7 Tex. 315; Eane v. 
 Jones, 2 Cold. (Tenn.) 321; Harvey v. 
 Thorpe, 2S Ala. 250. 65 Am. Dec. 344; Gra- 
 ham v. Campbell, •".»; Ga. 258; Illinois Land 
 & Loan Co. v. Bonner, 7.1 111. 315 : Nason v. 
 Jordan, 62 Me. 480; Winn v. Patterson, 9 
 Pet (U. S.) GO:!, <) E. Ed. 206. 
 
 Cases holding that there are no degrt 
 secondary evidence are Goodrich v. Weston, 
 102 Mass. ;;<;'_'. :; Am. B Smith v. 
 
 Brown, 151 Mass. 338, 24 X. E. 31 ; Dra. K. 
 B. U. C. 357; at least unless it appears that 
 there is better evidence than is offered ; Es- 
 low v. Mitchell, 20 Mich. 500. Cases holding 
 that there are such degrees are Coman v. 
 State, 4 Plackf. (Ind.) 241; Cornett v. Wil- 
 liams. 20 Wall. (U. S.) 226, 22 E. Ed 254; 
 Williams v. Waters, 36 Ga. 454, where it 
 was said that the same rule applies as in the 
 case of primary evidence; Dillon v. Howe. 
 9S Mich. 168, ."7 X. W. L02. 
 
 Prime fade evidence is that which aj>- 
 pears to be sufficient proof respecting the 
 matter in question, until something appears 
 to controvert it. hut which may be contra- 
 dicted or controlled. 
 
 Conclusive evidence is that which, while 
 uncontradicted, establishes the fact : as in 
 the instance of conclusive presumptions; it 
 is also that which cannot be contradicted. 
 
 The record of a court of common law Ju- 
 risdiction is conclusive as to the : 
 in stated; Shelton v. Barbour, 2 Wash; 
 <Ym.i c.i: Dennison v. Hyde, 6 Conn. "" |V . 
 But the judgment and record of a prize-court 
 is not conclusive evidence in the state courts. 
 unless it had jurisdiction of the suhject-inat- 
 ter; and whether it had or not. the slate 
 courts may decide; Slocum v. Wheeler, 1
 
 EVIDENCE 
 
 1096 
 
 EVIDENCE 
 
 Conn. 429. See, as to the conclusiveness of 
 the judgments of foreign courts of admiralty ; 
 Maley v. Shattuck, 3 Cra. (U. S.) 458, 2 L. 
 Ed. 498; Pollard v. Dwight, 4 Cra. (U. S.) 
 421, 2 L. Ed. 666; Croudson v. Leonard, 4 
 Cra. (U. S.) 434, 2 L. Ed. 670; Bourke v. 
 Granberry, Gilm. (Va.) 10, 9 Am. Dec. 589; 
 Groning v. Ins. Co., 1 Nott & McC. (S. C.) 
 537. 
 
 Evidence may be conclusive for some pur- 
 poses but not for others. 
 
 Admissibility of evidence. In consider- 
 ing the legal character of evidence, we are 
 naturally led to the rules which regulate 
 its competency and admissibility, although 
 it is not precisely accurate to say that evi- 
 dence is in its legal character competent or 
 incompetent; because what is incompetent 
 for the consideration of the tribunal which 
 is to pronounce the decision is not, strictly 
 ' speaking, evidence. 
 
 But the terms incompetent evidence and 
 inadmissible evidence are often used to des- 
 ignate what is not to be heard as evidence : 
 as, witnesses are spoken of as competent or 
 incompetent. 
 
 The admissibility of evidence is not affect- 
 ed by the fact that it was obtained by un- 
 fair means ; Williams v. State, 100 Ga. 511, 
 28 S. E. 624, 39 L. R. A. 269; 14 East 302; 
 Com. v. Dana. 2 Mete. (Mass.) 329; 1 Gr. 
 Ev. § 254a ; as when illegally seized by a 
 public official; Starchman v. State, 62 Ark. 
 538, 36 S. W. 940: State v. Flynn, 36 N. H. 
 64; Com. v. Henderson, 140 Mass. 303, 5 N. 
 E. 832 ; or a private detective ; Gindrat v. 
 People, 138 111. 103, 27 N. E. 1085; or sur- 
 reptitiously taken by a person unknown ; 
 Firth Sterling Steel Co. v. Steel Co., 199 Fed. 
 353. But evidence was held to be inadmis- 
 sible because obtained in violation of rights 
 secured by the IVth and Vth Amendments of 
 the Constitution either by production under 
 order of the court; Boyd v. U. S., 116 U. S. 
 616, 6 Sup. Ct. 524, 29 L. Ed. 746; or by 
 means of an illegal search by a custom offi- 
 cer; U. S. v. Wong Quong Wong, 94 Fed. 
 832. In criminal cases personal property is 
 sometimes introduced in evidence as bur- 
 glar's tools, appliances used in counterfeit- 
 ing, gaming and the like. See Seabch. 
 
 Evidence of experiments to throw light 
 upon any question at issue is admissible or 
 not, largely in the discretion of the trial 
 court. Evidence of experiments made eight 
 years after as to what sound could be heard 
 through a wall, to show that a certain con- 
 versation could not have been heard through 
 it, was rejected ; Dow v. Bulfinch, 192 Mass. 
 281, 78 N. E. 416. 
 
 It is competent on a second trial of a civil 
 case in a federal court, under the general 
 rule, to prove the testimony given on the 
 former trial by a witness who has since died, 
 there being no federal statute on the subject ; 
 Nome Beach Lighterage & Transp. Co. v. 
 Ins. Co., 156 Fed. 4S4; Mattox v. U. S., 156 
 
 U. S. 237, 15 Sup. Ct. 337, 39 L. Ed. 409; it 
 is not necessary to prove the precise lan- 
 guage of the deceased witness, but only to 
 express clearly the substance ; Ruch v. Rock 
 Island, 97 U. S. 693, 24 L. Ed. 1101 ; and in 
 a criminal case where the witness was dead 
 and had been cross-examined, his evidence 
 was held admissible; U. S. v. Macomb, 5 
 McLean 2S6, Fed. Cas. No. 15,702 ; Brown v. 
 Com., 73 Pa. 326, 13 Am. Rep. 740; State v. 
 Able, 65 Mo. 371; but where the proof was 
 insufficient to connect the present respondent 
 with the defense in the prior suit, the dep- 
 osition of a deceased witness was held inad- 
 missible"; Rumford Chemical Works v. 
 Chemical Co., 154 Fed. 65, 83 C. C. A. 177. 
 The notes of testimony on a former trial by 
 deceased and absent witnesses are admis- 
 sible when the accuracy of the copy is agreed 
 to ; Emerson v. Burnett, 11 Colo. App. 86, 52 
 Pac. 752; or admitted; Chicago, St. P. M. 
 & O. R. Co. v. Myers, 80 Fed. 365, 25 C. C. 
 A. 4S6 ; but not when there is no proof of 
 accuracy other than the certificate of the 
 stenographer ; Williams v. Min. Co., 37 Colo. 
 62, 86 Pac. 337, 7 L. R. A. (N. S.) 1170, 11 
 Ann. Cas. 111. 
 
 As the common law excludes certain class- 
 es of persons from giving testimony in par- 
 ticular cases, because it deems their exclu- 
 sion conducive, in general, to the discovery 
 of the truth, so it excludes certain materials 
 and statements from being introduced as 
 testimony in a cause, for a similar reason. 
 Thus, as a general rule, it requires witnesses 
 to speak to facts within their own knowl- 
 edge, and excludes hearsay evidence. 
 
 Hearsay is the evidence, not of what the 
 witness knows himself, but of what he has 
 heard from others. 
 
 It is the general rule that hearsay is in- 
 admissible ; Central Pac. R. Co. v. Feldman, 
 152 Cal. 303, 92 Pac. 849; and evidence 
 which appears to be hearsay should be ex- 
 cluded ; Moore v. Maxwell & Delhomme, 155 
 Ala. 299, 46 South. 755 ; so also facts which 
 the witness could know only by hearsay are 
 inadmissible. See Hearsay. 
 
 Such mere recitals or assertions cannot 
 be received in evidence for many reasons, 
 but principally for the following: First, 
 that the party making such declarations is 
 not on oath; and, secondly, because the par- 
 ty against whom it operates has no oppor- 
 tunity of cross-examination ; 1 Phil. Ev. 185. 
 See, for other reasons, 1 Stark. Ev. pt. 1, p. 
 44 ; Tayl. Ev. 508. The general rule exclud- 
 ing hearsay evidence does not apply to those 
 declarations to which the party is privy, or 
 to admissions which he himself has made. 
 
 Many facts, from their very nature, either 
 absolutely or usually exclude direct evidence 
 to prove them, being such as are either 
 necessarily or usually imperceptible by the 
 senses, and therefore incapable of the ordi 
 nary means of proof. These are questions 
 of pedigree or relationship, character, pre-
 
 EVIDENCE 
 
 1097 
 
 EVIDENCE 
 
 scription, custom, boundary, and the like; as 
 also questions which depend upon the exer- 
 cise of particular skill and judgment Such 
 facts, some from their nature, and others 
 from their antiquity, do not admit of the 
 ordinary and direct means of proof by living 
 witnesses : and, consequently, resort must 
 be had to the best means of proof which the 
 nature of the case affords. The rule permit- 
 ting a resort to hearsay evidence, however, 
 in cases of pedigree extends only to the ad- 
 mission of declarations by deceased persons 
 who were related by blood or marriage to the 
 person in question, and not to declarations 
 by servants, friends, or neighbors; Flora v. 
 Anderson, 75 Fed. 217. And "general reputa- 
 tion in the family," which is admissible in 
 matters of pedigree, or to establish the facts 
 of birth, marriage, or death, is confined to 
 declarations of deceased members of the 
 family, and family history and traditions 
 handed down by declarations of deceased 
 members, in either case made ante litem 
 motam, and originating with persons pre- 
 sumed to have competent knowledge of the 
 facts stated ; and evidence of the opinion or 
 belief of living members of a family as to 
 the death of another member, or of general 
 reputation among a person's living friends 
 and acquaintances as to his death, is not 
 within the rule, and is inadmissible; In re 
 Hurlburt's Estate, GS Vt 366, 35 Atl. 77, 35 
 L. R. A. 794. See Boundary ; Custom ; Pedi- 
 gree ; Prescription. 
 
 Admissions are the declarations which a 
 party by himself, or those who act under 
 his authority, make of the existence of cer- 
 tain facts. But where an admission is made 
 the foundation of a claim, the whole state- 
 ment must be taken together ; Perkins v. 
 Lane, 82 Va. 59. See Bryan v. Kelly, 85 Ala. 
 5G9, 5 South. 340 ; Admissions. 
 
 A statement of all the distinctions between 
 what is to be regarded as hearsay and what 
 is to be deemed original evidence would ex- 
 tend this article too far. The general prin- 
 ciple is that the mere declaration, oral or 
 written, of a third person, as to a fact, 
 standing alone, is inadmissible. 
 
 Res gestw. But where evidence of an 
 act done by a party is admissible, his dec- 
 larations made at the time, having a tend- 
 ency to elucidate or give a character to the 
 act, and which may derive a degree of credit 
 from the act itself, are also admissible, as 
 part of the res gestw; Sessions v. Little, 9 
 N. H. 271 ; Steph. Dig. Ev. §§ 2, 7. See Res 
 Gest.e. 
 
 So, declarations of third persons, in the 
 presence and hearing of a person, which 
 tend to affect his interest, may be shown in 
 order to introduce his answer or to show an 
 admission by his silence, but this species 
 of evidence must be received with great 
 caution; 1 Greeill. Ev. 230. 
 
 Confessions of guilt in criminal cases come 
 within the class of admissions, provided they 
 
 have been voluntarily made and have not 
 been obtained by the hope of favor or by the 
 fear of punisbment. And if made under such 
 Indu :em< al - to exclude them, a 
 quent declaration to the same effect, made 
 after the Inducement ba "rate, 
 
 and having no connection with the ho] 
 fears which have existed, is admissible as 
 evidence; state v. Howard, 17 X. II. 171. 
 Actions as well as verbal declarations may 
 constitute a confession, and the same rule 
 as to admissibility applies to both ; State v. 
 Crowson, 98 N. C. 595, 4 S. E. 143. Th< 
 however, a growing unwillingness to 
 convictions on confessions unless sup] 
 by corroborating circumstances, and in all 
 cases there must be at least proof of the 
 corpus delicti, independently of the CO 
 sion; 1 Whart. Cr. Law, § 683; Cooley, Const. 
 Lim. 385; Tayl. Ev. 74-1. See Admissio.ws ; 
 Confession ; Res Gestae. 
 
 Dying declarations are an exception to 
 the rule excluding hearsay evidence, and 
 are admitted, under certain limitations in 
 cases of homicide, so far as the circum- 
 stances attending the death and its cause 
 are the subject of them. See Declaration ; 
 Dying Declaiiath • 
 
 Opinions of persons of skill and ex in rl- 
 ence, called experts, are also admissible in 
 certain cases, when, in order to the better 
 understanding of the evidence or to the solu- 
 tion of the question, a certain skill and ex- 
 perience are required which are not ordi- 
 narily possessed by jurors. A nou-i 
 witness on the question of the sanity of one 
 accused of crime "after stating such par- 
 ticulars as he can remember, — generally only 
 the more striking facts, — ... is per- 
 mitted to sum up the total remembered and 
 unremembered Impressions of the Bena 
 staling the opinion which they produced;" 
 Queenau v. Oklahoma. 190 U. S. 548. 23 Sup. 
 Ct. 7G2, 47 L. Ed. 1175. See Expert; Opin- 
 ion. 
 
 In several instances proof of facts is ex- 
 eluded from public policy; as professional 
 communications between lawyer and client, 
 and physician and patient; secrets of state, 
 proceedings of grand juror, and communi- 
 cations between husband and wife. 
 Confidential Communications ; Privileged 
 Communications. 
 
 The effect of evidence. As a general rule, 
 a judgment rendered by a court of com- 
 petent jurisdiction directly upon a point in 
 issue is a bar between the same parties; l 
 Phill. Ev. 242; and privies in blood, as an 
 heir; 3 Mod. 141; or privies in estate; 1 
 Ld. Raym. 730; Pull. X. I'. 232, stand in the 
 same situation as those they represent: the 
 verdict and Judgment may be used for or 
 against them, and is conclusive. See Res 
 Judicata ; Judgment. 
 
 The constitution of the United States, art. 
 4, s. 1, declares that "full faith and credit 
 shall be given in each state to the public
 
 EVIDENCE 
 
 1098 
 
 EVIDENCE 
 
 acts, records, and judicial proceedings of 
 every other state. And congress may, by gen- 
 eral laws, prescribe the manner in which 
 such acts, records, and proceedings shall be 
 proved, and the effect thereof." See Hamp- 
 ton v. M'Connel, 3 Wheat. (U. S.) 2.14, 4 L. 
 Ed. 378; Com. v. Green, 17 Mass. 546 
 Stephenson v. Bannister, 3 Bibb (Ky.) 369 
 Manwaring v. Grilling, 5 Day (Conn.) 503 
 Hilton v. Guyot, 159 U. S. 113. 10 Sup. Ct. 
 139, 40 L. Ed. 95; Ritchie v. McMullen, 159 
 U. S. 235, 16 Sup. Ct 171, 40 L. Ed. 133 ; 2 
 Black, Judg. § 857; Foreign Judgment. 
 
 Statutes defining what shall be held con- 
 clusive are, in general, unconstitutional, as 
 a deprivation of due process of law, and as 
 depriving the courts of their function of de- 
 termining the weight and sufficiency of evi- 
 dence; Chicago, M. & St. P. R. Co. v. Min- 
 nesota, 134 U. S. 418, 10 Sup. Ct. 402, 702, 33 
 L. Ed. 970; Missouri, K. & T. R. Co. v. 
 Simonson, 64 Kan. 802, 68 Pac. 653, 57 L. R. 
 A. 765, 91 Am. St. Rep. 248; Cairo & F. R. 
 Co. v. Parks, 32 Ark. 131 ; Wantlan v. White, 
 19 Ind. 470 ; Meyer v. Berlandi, 39 Minn. 438, 
 40 N. W. 513, 1 L. R. A. 777, 12 Am. St. Rep. 
 663; Cooley Const. Lim. (5th ed.) 453; but 
 the legislature may make the deliberate 
 statement of a party conclusive evidence 
 against him ; Orient Ins. Co. v. Daggs, 172 
 U. S. 557, 19 Sup. Ct. 281, 43 L. Ed. 552. 
 
 Foreign laws must be proved as facts in 
 the courts of this country, and mere cita- 
 tions to English statutes and authorities can- 
 not be accepted as showing the English law; 
 Dickerson v. jiatheson, 50 Fed. 73. See For- 
 eign Law. For the force and effect of for- 
 eign judgments, see Foreign Judgment. 
 
 The object of evidence is next to be con- 
 sidered. It is to ascertain the truth be- 
 tween the parties. It has been discovered 
 by experience that this is done most cer- 
 tainly by the adoption of the following rules, 
 which are now binding as law : 1. The evi- 
 dence must be confined to the point in issue. 
 2. The substance of the issue must be proved; 
 but only the substance is required to be 
 proved. 3. The affirmative of the issue must 
 be proved. 
 
 It is a general rule, both in civil and 
 criminal cases, that the evidence shall oe 
 confined to the point in issue. Justice and 
 convenience require the observance of this 
 rule, particularly in criminal cases ; for 
 when a prisoner is charged with an offence 
 it is of the utmost importance to him that 
 the facts laid before the jury should consist 
 exclusively of the transaction which forms 
 the subject of the indictment, and which 
 alone he has come prepared to answer; 2 
 Russ. Cr. 694; 1 Phill. Ev. 166. 
 
 To this general rule there are several ex- 
 ceptions, and a variety of cases which do 
 not fall within the rule. In general, evi- 
 dence of collateral facts is not admissible; 
 but when sucb a fact is material to the 
 issue joined between the parties, it may be 
 
 given in evidence: as, for example, in order 
 to prove that the acceptor of a bill knew 
 the payee to be a fictitious person, or that 
 the drawer had general authority from him 
 to fill up bills with the name of a fictitious 
 payee, evidence may be given to show that 
 he had accepted similar bills before they 
 could, from their date, have arrived from 
 the place of date ; 2 H. Bla. 2S8. 
 
 When special damage sustained by the 
 plaintiff is not stated in the declaration, it 
 is not one of the points in issue, and, there- 
 fore, evidence of it cannot be received ; yet 
 a damage which is a necessary result of the 
 defendant's breach of contract may be 
 proved notwithstanding it is not in the dec- 
 laration ; 11 Price 19. 
 
 In general, evidence of the character of 
 either party to a suit is inadmissible ; yet in 
 some cases such evidence may be given. See 
 Character. 
 
 When evidence incidentally applies to an- 
 other person or thing not included in the 
 transaction in question, and with regard to 
 whom or to which it is inadmissible, yet if 
 it bear upon the point in issue it will be 
 received; 8 Bing. 376. And see 4 B. & P. 
 92; State v. Watkins, 9 Conn. 47, 21 Am. 
 Dec. 712; 1 Whart. Cr. Law § 649. 
 
 The acts of others, as in the case of con- 
 spirators, may be given in evidence against 
 the prisoner, when referable to the issue ; 
 but confessions made by one of several con- 
 spirators after the offence has been complet- 
 ed, and when the conspirators no longer act 
 in concert, cannot be received. See Liver- 
 more v. Herschell, 3 Pick. (Mass.) 33; Mack- 
 aboy v. Com., 2 Va. Cas. 269 ; Reitenbach v. 
 Reitenbach, 1 Rawle (Pa.) 362, 18 Am. Dec. 
 638; Wilbur v. Strickland, 1 Rawle (Pa.) 
 458; Martin v. Com., 2 Leigh (Va.) 745; 
 Gardner v. Preston, 2 Day (Conn.) 205, 2 
 Am. Dec. 91 ; 2 B. & Aid. 573, 574 ; Perigo v. 
 State, 25 Tex. App. 533, 8 S. W. 660; Con- 
 spiracy; Confession. 
 
 In criminal cases, when the offence is a 
 cumulative one, consisting itself in the com- 
 mission of a number of acts, evidence of 
 those acts is not only admissible, but essen- 
 tial to support the charge. On an indictment 
 against a defendant for a conspiracy to 
 cause himself to be believed a man of large 
 property, for the purpose of defrauding 
 tradesmen after proof of a representation to 
 one tradesman, evidence may thereupon be 
 given of a representation to another trades- 
 man at a different time; 1 Campb. 399; 
 Gardner v. Preston, 2 Day (Conn.) 205, 2 
 Am. Dec. 91; Snell v. Moses, 1 Johns. (N. 
 Y.) 99. 
 
 Evidence of similar occurrences is admis- 
 sible, to show the quality of the act, in many 
 cases, as the value of land, the dangerous 
 character of a drug, or the reasonableness 
 of the act; 17 Harv. L. Rev. 349, where the 
 principles regulating the subject are discuss- 
 ed, and the decisions are said to be chaotic
 
 EVIDENCE 
 
 1UU0 
 
 £VII»i 
 
 and arbitrary, as a result of the rule that 
 the admissibility is made to depend on the 
 opinion of the judge as to whether it raises 
 a multiplicity of issues or occasions undue 
 surprise. In civil cases such evi< 
 to be admitted in very few instances. It is 
 inadmissible to prove negligence; Missouri, 
 K. & T. Ry. Co. v. Johnson, 92 Tex. 380, 48 
 S. W. 568; but, to prove due care, evidence 
 of a general custom of switchmen to ride on 
 the side of a freight ear was admitted; Boyce 
 v. Lumber Co., 119 Wis. 642, ( .)7 N. W. 563. 
 So it has been admitted to prove similarity 
 of conditions, as the effect of the passing of 
 trains over a certain curve; Louisville vV N. 
 R. Co. v. Sandlin, 125 Ala. 5S5, 2S South. 40; 
 or the supply of gas to other houses, where 
 the appliances were such as to furnish as 
 much or more gas than those in dispute; 
 Indiana Natural & Illuminating Gas Co. v. 
 Anthony, 2G Ind. App. 307, 58 N. E. 8G8 ; or 
 the relative quantity of water obtained un- 
 der similar conditions in other pastures, 
 where the action was for an insufficient sup- 
 ply in the case of a contract to pasture cat- 
 tle; Tuttle v. Robert Moody & Son (Tex.) 
 94 S. W. 134. In criminal cases such evi- 
 dence is admissible to show mental condi- 
 tion; [1S99] 1 Q. B. D. 77; 12 Cox, C. C. G12; 
 Com. v. Coe, 115 Mass. 481, 501. In prosecu- 
 tions for crime, evidence of similar offences 
 is not admissible except for the purpose of 
 showing the intent ; Topolewski v. State, 130 
 Wis. 244, 109 N. W. 1037, 7 L. R. A. (N. S.) 
 75G, 118 Am. St. Rep. 1019, 10 Ann. Cas. 627 ; 
 Lightfoot v. People, 1G Mich. 507; Olson v. 
 U. S., 133 Fed. 849, G7 C. C. A. 21 ; U. S. v. 
 Flemming, 18 Fed. 907 ; Dillard v. U. S., 141 
 Fed. 303, 72 C. C. A. 451; Com. v. Kussell, 
 156 Mass. 19G, 30 N. E. 763 ; Packer v. U. S., 
 106 Fed. 900, 4G C. C. A. 35 ; Brown v. U. S., 
 142 Fed. 1, 73 C. C. A. 187; or some element 
 of the present charge; Paulson v. State, 118 
 Wis. 89, 94 N. W. 771 ; hut evidence of previ- 
 ous offences is not admissible to raise the 
 presumption of present guilt; Lightfoot v. 
 People, 16 Mich. 507; 2 Can. L. Rev. GS9 ; 
 20 Harv. L. Rev. 151; but evidence otherwise 
 admissible is not rendered inadmissible mere- 
 ly because likely to raise a prejudice; [1S94] 
 A. C. 57 ; and when a guilty knowledge or 
 intent is an essential part of the offence, 
 commission of similar acts may be proved 
 to raise an inference of such knowledge or 
 intent; 2 Can. L. Rev. G90; where a prisoner 
 had passed a counterfeit dollar, evidence 
 that he had other counterfeit dollars in his 
 possession is evidence to prove the guilty 
 knowledge; State v. Odel, 2 Const. (S. C.) 
 758; State v. Antonio, id. 770; State v. Hous- 
 ton, 1 Bail. (S. C.) 300; Martin v. Coin., L" 
 Leigh (Va.) 745; People v. Lagrille, 1 Wheel. 
 Cr. Cas. (N. Y.) 415; Russ. & R. 132; Finn 
 v. Com., 5 Rand. (Va.) 701; and when a 
 wife was tried for poisoning her husband by 
 arsenic, evidence was admitted of the death 
 of two sons and similar illness of the third 
 
 from same cause, to show that the hu 
 died of arsenical ; and not 
 
 dentally; Is L. j. ; 
 
 W3; and .-■ e v. Molii N. Y. 
 
 264, 61 N. L. it. a. 193, where both 
 
 in the opinions and in an extended Q( 
 subject is •!. d from every point of 
 
 view, and the cases are ■ 
 
 Where the crin part of a plan 
 
 or system of criminal . 
 other crimes near to it in tin 
 lar character, is relevant ai I 
 show the knowledge and intent of t: 
 
 and thai the act charged v 
 result of accident or inai 
 v. U. S., 158 led. 572, 85 C. C. a. ; 
 where the other and independent criminal 
 acts of themselves form the motive for com- 
 mitting the crime alleged in the case on 
 trial; Thompson v. Q. S.. !!l FedJ II. 75 C. 
 C. A. 172, 7 Ann. Cas. 62 ; or is an incident 
 to, or part of, or leads up to the latter; Peo 
 pie v. McLaughlin, 150 N. Y. 365, 44 N. B. 
 1017; but as such evidence, if wrongfully 
 admitted, would greatly prejudice the pris- 
 oner, its relevancy should be carefully 
 scrutinized; Com. v. Shepard, 1 Allen 
 (Mass.) 575, 5S1; hence its admission upon 
 an issue as to which it is not relevant will 
 be prejudicial and therefore reversible er- 
 ror; People v. Collins, 144 Mich. 121, 107 N. 
 W. 1114. 
 
 The substance of the issue joined between 
 the parties must be proved; 1 PhilL Ev. 190; 
 Tayl. Ev. 233. Under this rule will be con- 
 sidered the quantity of evidence required to 
 support particular averments in the declara- 
 tion or indictment. 
 
 And, first, of civil cases. 1. It is a fatal 
 variance in a contract if it appear that a 
 party who ought to have been joined as 
 plaintiff has been omitted; 1 Saund. 291 h, 
 n.: 2 Term 2S2 ; and so when' a bill for 
 specific performance alleges the execution of 
 a contract in a certain year, and the proof 
 shows that it was made in another; John- 
 ston v. Jones, 85 Ala. 286, -1 South. 748. But 
 it is no variance to omit a person who might 
 have been joined as defendant; because the 
 non-joinder ought to have been pleaded in 
 abatement; 1 Saund. 293 d. n. U. The con- 
 sideration of the contract must be proved; 
 but it is not necessary tor the plaintiff I 
 out in his declaration, or prove on the trial, 
 the several parts of a contract consisting of 
 distinct and collateral provisions: it is sutli- 
 cient to state so much of the contract as con- 
 tains the entire consideration of the ai I. and 
 the entire act to be done in virtue of such 
 consideration, including the time, manner. 
 and other circumstances of its performance; 
 G East 568; -t B. ,v- Aid. 3S7. 
 
 Second. In criminal cases, it may be laid 
 down that it is, in general, sufficient to prove 
 what constitutes the offence, l. It is enough 
 to prove so much of the indictment as shows 
 that the defendant has committed a sub-
 
 EVIDENCE 
 
 1100 
 
 EVIDENCE 
 
 stantive crime therein specified; 2 Campb. 
 585; U. S. v. Vickery, 1 H. & J. (Md.) 427, 
 Fed. Cas. No. 16,619. See Daniels v. State, 78 
 Ga. 9S, 6 Am. St. Rep. 23S ; People v. Wake- 
 ly, 62 Mich. 297, 28 N. W. 871. If a man be 
 indicted for robbery, he may be found guilty 
 of larceny and not guilty of the robbery ; 2 
 Hale, PI. Cr. 302. The offence of which the 
 party is convicted must, however, be of the 
 same class with that of which he is charged ; 
 1 Leach 14; 2 Stra. 1133. 
 
 2. When the intent of the prisoner fur- 
 nishes one of the ingredients in the offence, 
 and several intents are laid in the indict- 
 ment, each of which, together with the act 
 done, constitutes an offence, it is sufficient 
 to prove one intent only ; 3 Stark. 35. 
 
 3. When a person or thing necessary to 
 be mentioned in an indictment is described 
 with circumstances of greater particularity 
 than is requisite, yet those circumstances 
 must be proved ; U. S. v. Porter, 3 Day 
 (Conn.) 2S3, Fed. Cas. No. 16,074; Clark v. 
 State, 26 Tex. App. 4S6, 9 S. W. 767. For 
 example, if a party be charged with stealing 
 a black horse, the evidence must correspond 
 with the averment, although it was unneces- 
 sary to make it ; Hooker v. State, 4 Ohio 350 ; 
 Berrien v. State, 83 Ga. 381, 9 S. E. 609 ; but 
 see People v. Monteith, 73 Cal. 7, 14 Pac. 373, 
 where an indictment charging a murder with 
 a "bludgeon" is supported by proof that 
 death was produced by a blow with a bolt or 
 club; Long v. State, 23 Neb. 33, 36 N. W. 
 310. See State v. Weddington, 103 N. C. 364, 
 
 9 S. E. 577 ; Douglass v. State, 26 Tex. App. 
 109, 9 S. W. 489, 8 Am. St Rep. 459. 
 
 4. The name of the prosecutor or party 
 injured must be proved as laid ; and the rule 
 is the same with reference to the name of a 
 third person introduced into the indictment, 
 as descriptive of some person or thing. See 
 Robinson v. Com., 88 Ky. 386, 11 S. W. 210, 
 
 10 Ky. L. Rep. 972; State v. Quinlan, 40 
 Minn. 55, 41 N. W. 299. 
 
 The affirmative of the issue must be proved. 
 The general rule with regard to the burden 
 of proving the issue requires that the party 
 who asserts the affirmative shoulu prove it. 
 But this rule ceases to operate the moment 
 the presumption of law is thrown into the 
 other scale. When the issue is on the legiti- 
 macy of a child, therefore, it is incumbent on 
 the party asserting the illegitimacy to prove 
 it; 2 Selw. N. P. 709. Or where an answer 
 admits all the averments of the complaint, 
 and sets up a^ounter-claim as a defence, the 
 affirmative of all the issues raised by the 
 pleadings is on the defendant ; Hamilton 
 Coal Co. v. Bernhard, 61 Hun 624, 16 N. Y. 
 Supp. 55. See Onus Probandi; Presump- 
 tion; U. S. v. Hayward, 2 Gall. 485, Fed. Cas. 
 No. 15,336 ; State v. Geuing, 1 McCord (S. C) 
 573; 2 So. L. Rev. (N. S.) 126; Delachaise 
 v. Maginnis, 44 La. Ann. 1043, 11 South. 715. 
 
 Modes of proof. Records are to be proved 
 
 by an exemplification, duly authenticated 
 according to law, in all cases where the is- 
 sue is nul tiel record. In other cases, an ex- 
 amined copy, duly proved, will, in general, be 
 evidence; Leathers v. Wrecking, etc., Co., 2 
 Woods 6S0, Fed. Cas. No. 8,164. Foreign 
 laws are proved in the mode pointed out un- 
 der the article Foreign Law. See supra. 
 
 Incompetent and irrelevant evidence can- 
 not be rendered competent and relevant by 
 being contained in an official document ; U. 
 S. v. Corwin, 129 U. S. 381, 9 Sup. Ct. 318, 
 32 L. Ed. 710. 
 
 Private writings are proved by produciug 
 the attesting witness ; or in case of his death, 
 absence, or other legal inability to testify, as 
 if after attesting the paper he becomes in- 
 famous, his handwriting may be proved. 
 When there is no witness to the instrument, 
 it may be proved by the evidence of the hand- 
 writing of the party, by a person who has 
 seen him write, or who in a course of cor- 
 respondence or business relations has become 
 acquainted with his hand. See Munns v. De 
 Nemours, 3 Wash. C. C. 31, Fed. Cas. No. 
 9,926; Arnold v. Gorr, 1 Rawle (Pa.) 223; 
 4 Am. L. Rev. 625 ; Berg v. Peterson, 49 
 Minn. 420, 52 N. W. 37. As to the question 
 whether the genuineness of a signature may 
 be proved or disproved by comparison, or the 
 signature to documents not a part of the case 
 be proven for the purpose of using them as 
 standards of comparison with the signature 
 to the instrument sued on, see Handwriting. 
 
 Books of original entry, when duly proved, 
 are prima facie evidence of goods sold and 
 delivered, and of work and labor done. See 
 Original Entry. 
 
 A full opinion laid down some general 
 rules in relation to the use of the ballots as 
 evidence in an election contest, which present 
 the law in that regard in a very terse and 
 lucid form. It holds (1) that one who has 
 received a certificate of election to office is 
 not estopped in case of contest from going 
 behind the returns from ballot boxes which 
 were counted without objection by either 
 party, and which formed the basis of the cer- 
 tificate; (2) that in an election contest, the 
 ballots of a certain box, which had been 
 opened before a legislative committee after 
 the election, are admissible when it appears 
 that the opportunity for the ballots to have 
 been tampered with was a mere possibility ; 
 and (3) that the fact that a discrepancy ex- 
 ists between the returns of the votes counted 
 from that ballot box and a recount made by 
 the court in an election contest does not in- 
 dicate that there was any alteration in the 
 ballots after being voted, nor tend to cast 
 suspicion thereon, when the evidence shows 
 that, when the count was concluded by the 
 election officers, there were discrepancies be- 
 tween the tally sheets of the different clerks 
 of the election, which it was attempted to rec 
 oncile by guessing at the result, and making
 
 EVIDENCE 
 
 1101 
 
 EVIDENCE 
 
 changes accordingly; Henderson v. Albright, 
 12 Tex. Civ. App. 368, 34 S. W. 992. See 
 Election. 
 
 Proof by witnesses. The testimony of wit- 
 nesses is called oral evidence, or tluit which 
 is given viva voce, as contradistinguished 
 from that which is written or documentary. 
 Testimony is oral evidence as distinguished 
 from documentary or written. Proof Is the 
 effect of evidence and evidence is the means 
 or medium of proof; Elliot, Ev. § 9, and cas- 
 es cited. It is a general rule that oral evi- 
 dence shall in no case be received as equiva- 
 lent to, or as a substitute for, a written in- 
 strument, where the latter is required by 
 law ; or to give effect to a written instru- 
 ment which is defective in any particular 
 which by law is essential to its validity; or 
 to contradict, alter, or vary a written in- 
 strument, eitber appointed by law, or by the 
 contract of the parties, to lie the appropriate 
 and authentic memorial of the particular 
 facts it recites; for by doing so, oral testi- 
 mony would be admitted to usurp the place 
 of evidence decidedly superior in degree ; 
 Christ v. Diffenbach, 1 S. & R. (Pa.) 404, 7 
 Am. Dec. 624; Querry v. White. 1 Bibb iKy.) 
 271 ; Stackpole v. Arnold, 11 Mass. 30, C Am. 
 Dec. 150; Barber v. Brace, 3 Conn. 9, 8 Am. 
 Dec. 149; Chemical Electric Light & Power 
 Co. v. Howard. 150 Mass. 496, 23 -X. E. 317; 
 Butler v. Trust Co., 122 Ga. 371, 50 S. E. 132; 
 Colton v. Vandervol^en. 87 Ind. 361 ; Chari- 
 ton Ice Co. v. Ice Co., 129 la. 523, 105 N. W. 
 1014; O'Connor v. Green, 60 App. Div. 553, 
 69 N. Y. Supp. 1097; Town of Kane v. Far- 
 relly, 192 111. 521, 61 N. E. 64S ; Milwaukee 
 Carnival Ass'n v. King Co., 112 Wis. 047, S8 
 N. W. 59S; Northern Assur. Co. v. Building 
 Ass'n, 1S3 U. S. 30S, 22 Sup. Ct. 133, 46 L. 
 Ed. 213 (where many cases are considered), 
 criticised, 15 Harv. L. Rev. 575; but this 
 rule does not apply in suits between persons 
 not parties to the writing; Williams v. Fish- 
 er, 8 Misc. 314, 2S X. Y. Supp- 739; Clapp v. 
 Banking Co., 50 Ohio St. 528. 35 N. E. 30S ; 
 Brown v. Thurber, 77 N. Y. 613 ; Kellogg v. 
 Tompson, 142 Mass. 76, 6 N. E. 860. 
 
 But parol evidence is admissible to defeat 
 a written instrument, on the ground of fraud, 
 mistake, etc., or to apply it to its proper sub- 
 ject-matter, or, in some instances, as ancil- 
 lary to such application, to explain the 
 meaning of doubtful terms, or to rebut pre- 
 sumptions arising extrinsical ly. Such evi- 
 dence is admissible if the contract was ob- 
 tained by fraud; Cass v. Brown, OS N. II. 85, 
 44 Atl. 86; Cushwa v. Imp. Loan & Bldg. 
 Ass'n, 45 W. Ya. 490. 32 s. E. 259; McOrary 
 v. Pritehard, 119 Ga. 876, 47 S. E. ::n ■. Moore 
 v. Harmon, 142 Ind. 555, 41 N. E. 50'.) ; or 
 false representations; Machin v. Trust Co., 
 210 1'a. 2:1:;. .".!) Atl. 107;:: 1'avis v. Driscoll, 
 22 Tex. Civ. App. 14, 54 S. W. 43; or if the 
 written contract is ambiguous or obscure so 
 that the intent of the parties cannot be as- 
 certained ; Jacobs v. Parodi, 50 Fla. 541, 39 
 
 South. 833 ; Leverett v. Bullard, 121 Ga 
 
 49 s. E. 591 ; Stone v. Mulvaine, 217 111. 40. 
 75 N. E. 421; Gregory v. Lake Linden, 130 
 Mob. 368, 00 .\. w. 29; but the ambiguity 
 must be a latent one; Okie v. Person, '-'•': App. 
 1». O. 170; 11 --Mil v. Wallace, 100 HI. 32 
 
 X. E. 1136; Camden & 1 v. Adams, 
 
 02 N. J. Bq. 656, 51 Atl. 24; An 
 I erguson, 54 X. V. 659; it" patent on <■ ■ 
 of the deed, parol evidence is not admis 
 Storer v. Freeman, •; Mass. 435, 4 Am 
 155; Ilolman v. Whitaker, 119 X. C. i 
 s. 1:. 7:-:;; Gatewood v. Burrus, :; 1 all 
 194. Where the contract is obscurel; 
 
 d, so that a knowledge or 
 matter and relation of the part;. 
 
 ary, parol evidence, as to that, may be 
 admitted: Black River Lumber Co. v. War- 
 ner. 93 M.i. 374, s. w. 210; bo also it may 
 in- admitted to show the meaning of words 
 
 where they have some other than the 
 ordinary sense; Richmond Onion Pass. i:. C 
 v. R. Co., 95 Va. 386, 28 S. E5. ."7:;; Mcintosh 
 v. Miner, 53 App. Div. 240, 65 X. Y. Supp. 
 7::.-.; Wilcox v. " Mo. App. 587; or 
 
 the identification of parties, where that does 
 not appear certain by the instrument, as that 
 the grantees in a deed were husband and 
 wife; McLaughlin v. Rice, is" Mass. 212, 70 
 N. E. 52, 102 Am. St. Rep. 339; Aplin v. 
 Fisher, 84 Mich. 128, 47 X. W. 574: or that 
 the words "bodily heirs" meant children: 
 Edins v. Murphree, 1 12 Ala. 617, 38 Booth. 
 639; or that one of the contractors was a 
 partnership and not a corporation; Hubbard 
 v. Chappel, 14 Ind. 001; or where the Identity 
 of the parties is not clear: Haskell v. Tukes- 
 bury, 92 Me. 551, 43 Atl. 500, 00 Am. St. Rep. 
 ."._".»; or where a signature is made with in- 
 itials only; Sanborn v. Flagler, Allen 
 (Mass.) 474; or to establish the liability of 
 an undisclosed principal; City Trust, Safe- 
 Deposit & Surety Co. of Philadelphia v. 
 Brewing Co., 174 X. Y. 4SG, 07 X. 1 
 Smith v. Felter, •;:: x. j. 1.. :;o. 42 Atl. 1053; 
 Ileywood Bros. & Wakefield Co. v. Andrews, 
 
 50 111. App. 195; Belt v. Power Co., 24 Wash. 
 387, 64 Pac. 525; contra, Vail v. Life ins. 
 Co., 192 111. 567, 61 X. E. 651 : Einan v. Bab- 
 cock, 58 Mich. 301, 26 X. W. 294; David Be- 
 
 Co. v. Slaw, is Misc. 697, '.'7 N. v. 
 Supp. 712; or whether the notes were made 
 by individuals or a tirm ; In re E. B. Weis- 
 enberg & «'•>.. 131 Fed. 517; Huguenot Mills 
 v. George F. Jempson & Co.. 68 s. Q :•.<••••:. 17 
 S. E. t:s7, to- Am. St. Rep. 07.". ; Markbam v. 
 Cover. '.»'.> MO. App. 83, 72 S. W. 474; Daugh- 
 erty v. lleckard. 189 111. 239, 59 X. B 
 or where two persons have the same name: 
 Simpson v. I >i.\. 131 Mass. 179; or ther< 
 mistake or variance in the name; Hicks v. 
 ivey, 99 Ga. 648, 26 s. E. 68; or where evi- 
 dence is necessary to identify the subjt* t- 
 matter; .Etna Ins. Co. v. Strout, 10 Ind. App. 
 100, 44 X. E. 934; Ax ford v. Meeks. 59 X. J. 
 E. 502, 36 Atl. 1036; and, in some cases, 
 evidence of conversations between the par-
 
 EVIDENCE 
 
 1102 
 
 EVIDENCE 
 
 ties during negotiations is competent to show 
 the construction of the contract; Hart v. 
 Thompson, 10 A pp. Div. 1S3, 41 N. Y. Supp. 
 909; or to explain an ambiguity; Sabin v. 
 Kendrick, 5S App. Div. 10S, GS N. Y. Supp. 
 546 ; Wright v. Gas Co.. 2 Pa. Super. Ct. 219 ; 
 Wussow v. Hase, 10S Wis. 382, 84 N. W. 433 ; 
 but not to change the terms of the contract; 
 Hart v. Hart, 117 Wis. 639, 94 N. W. 890. 
 
 But parol evidence is not admissible to con- 
 tradict the terms of the agreement or show 
 the intent of the parties; Delaware Indians 
 v. Cherokee Nation, 193 U. S. 127, 24 Sup. 
 Ct. 342, 48 L. Ed. 646; Packer v. Roberts, 140 
 111. 671, 29 N. E. G6S; Willis v. Weeks, 129 
 la. 525, 105 N. W. 1012; or to construe a 
 term which may be done without extrinsic 
 evidence ; Sullivan v. R. Co., 138 Ala. 650, 35 
 South. 694 ; or to explain away or destroy 
 the effect of the agreement; King v. Ins. Co., 
 45 Ind. 43. 
 
 Extrinsic evidence is inadmissible to contra- 
 dict or control court records ; Bent v. Stone, 
 184 Mass. 92, 68 N. E. 46 ; Marrow v. Brink- 
 ley, 85 Va. 55, 6 S. E. 605, in which an appeal 
 was dismissed ; Marrow v. Brinkley, 129 U. 
 S. 178, 9 Sup. Ct. 267, 32 L. Ed. 654 ; Cook v. 
 Penrod, 111 Mo. App. 128, S5 S. W. 676; or to 
 supply, extend or modify the record of judi- 
 cial action by a municipal board ; Kidson v. 
 City of Bangor, 99 Me. 139, 58 Atl. 900 ; and 
 this rule extends to official records generally ; 
 Ferguson v. Brown, 75 Miss. 214, 21 South. 
 603 ; Austin v. Rodman, 8 N. C. 71 ; legisla- 
 tive journals and records : Auditor General 
 v. Board, 89 Mich. 552, 51 N. W. 483; 7v T il- 
 son v. Markley, 133 N. C. 616, 45 S. E. 1023 ; 
 municipal records ; Chippewa Bridge Co. v. 
 Durand, 122 Wis. 85, 99 N. W. 603, 10G Am. 
 St. Rep. 931 ; corporation records ; State v. 
 Hancock, 2 Pennewill (Del.) 252, 45 Atl. 851 
 (at least in the absence of fraud or mistake); 
 Snyder v. Lindsey, 157 N. Y. 616, 52 N. E. 
 592 ; contra, Rose v. Independent Chevra 
 Kadisho, 215 Pa. 09, 64 Atl. 401; Hequem- 
 bourg v. Edwards, 155 Mo. 514, 56 S. W. 490. 
 If there be no fraud, accident, or mistake, a 
 deed cannot be contradicted or varied by pa- 
 rol evidence ; Kruse v. Koelzer, 124 Wis. 536, 
 102 N. W. 1072 ; Wishart v. Gerhart, 105 Mo. 
 App. 112, 78 S. W. 1094; nor can an official 
 deed; Bower v. Chess & Wymand Co., S3 
 Miss. 218, 35 South. 444 ; Wells v. Savannah, 
 181 U. S. 531, 21 Sup. Ct. G97, 45 L. Ed. 986 ; 
 or a sealed instrument generaUy ; Finck v. 
 Bauer, 40 Misc. 218, 81 N. Y. Supp. 625. 
 
 See a "Brief History of the Parol Evi- 
 dence Rule," by Wigmore ; 4 Colum. L. Rev. 
 338; 20 L. Q. R. 245; 9 L. R. A. (N. S.) 967, 
 note; [189S] 2 Q. B. 487; also as to con- 
 tracts against public policy and good in part ; 
 16 Y. L. J. 531 ; and where the writing was 
 delivered conditionally; 18 L. R. A. (N.-S.) 
 434, note. 
 
 In these cases, the parol evidence does not 
 usurp the place, or arrogate the authority of 
 written evidence, but either shows that the 
 instrument ought not to be allowed to oper- 
 
 ate at all, or is essential in order to give to 
 the instrument its legal effect ; Smith v. Wil- 
 liams, 5 N. C. 426, 4 Am. Dec. 564 ; White v. 
 Eagan, 1 Bay (S. C.) 247 ; Querry v. White, 1 
 Bibb (Ky.) 271; Stackpole v. Arnold, 11 
 Mass. 30, 6 Am. Dec. 150. See Gilpins v. 
 Consequa, Pet. C. C. 85, Fed. Cas. No. 5,452 ; 
 Barnet v. Gilson, 3 S. & R. (Pa.) 340; Otis v. 
 Von Storch, 15 R. I. 41, 23 Atl. 39 ; Olds v. 
 Conger, 1 Old. 232, 32 Pac. 337 ; Bradley Fer- 
 tilizer Co. v. Caswell, 65 Vt. 231, 26 Atl. 956 ; 
 Bulkeley v. House, 62 Conn. 459, 26 Atl. 352, 
 21 L. R. A. 247; O'Leary v. McDonough, 2 
 Misc. 219, 23 N. Y. Supp. 665; Louergan v. 
 Buford, 148 U. S. 581, 13 Sup. Ct. GS4, 37 L. 
 Ed. 569 ; Shepherd v. Busch, 154 Pa. 149, 26 
 Atl. 363, 35 Am. St. Rep. 815. Where the 
 facts do not appear on the face of the judg- 
 ment, oral evidence is admissible to show 
 how credits thereon come to be allowed, and 
 what they were allowed for ; Humphreys v. 
 Bank, 75 Fed. 852, 21 C. C. A. 538. And 
 parol evidence has been admitted to establish 
 a contemporaneous oral agreement which in- 
 duced the execution of the written contract 
 though the effect be to alter or reform the 
 latter; Cullmans v. Lindsay, 114 Pa. 170, 6 
 Atl. 332; Cake v. Bank, 116 Pa. 270, 9 Atl. 
 302, 2 Am. St. Rep. 600; so when the con- 
 tract was a letter "confirming our verbal con- 
 tract," proof of the latter was permitted al- 
 though inconsistent with the letter ; Holt v. 
 Pie, 120 Pa. 439, 14 Atl. 389. As a general 
 rule the withdrawal of evidence from the 
 consideration of the jury, by direction of the 
 court, cures any error caused by its admis- 
 sion; Pennsylvania Co. v. Roy, 102 U. S. 452, 
 26 L. Ed. 141 ; Hopt v. Utah, 120 U. S. 430, 
 7 Sup. Ct. 614, 30 L. Ed. 708 ; but there are 
 exceptions, as where too strong an impres- 
 sion has been made to be cui'ed by the with- 
 drawal ; id. j or where the language of the 
 withdrawal is insufficient to identify clearly 
 what is withdrawn ; Throckmorton v. Holt, 
 ISO U. S. 552, 21 Sup. Ct. 474, 45 L. Ed. 
 663. 
 
 It was held to be no cause of action to give 
 false evidence negligently but not wilfully or 
 corruptly, whereby the plaintiff was convict- 
 ed of a criminal offence, the conviction still 
 standing; [1902] 1 K. B. 467; which was 
 based on a long line of authorities ending 
 with Basely v. Mathews, L. R. 2 C. P. 684, 
 which is said to be a novel case, and that 
 there would probably be no cause of action 
 even if the conviction were reversed; 18 L. 
 Q. R. 107- See Perjury. 
 
 As to the distinction between Evidence, 
 which corresponds with probatlo, and preuve, 
 see Preuve. 
 
 See, generally, the treatises on Evidence, 
 of Gilbert, Phillipps, Starkie, Roscoe, Swift, 
 Bentham, Macnally, Peake, Greenleaf, Whar- 
 ton, Stephen, Rice; Wigmore; Chamberlayne ; 
 McKelvey; Jones; Best on Presumption; 
 Browne, Parol Ev. ; Will. Circ, Ev. ; Tele- 
 graph and Telephone.
 
 EVIDENCE, CIRCUMSTANTIAL 1103 
 
 EX MERO MOTU 
 
 EVIDENCE, CIRCUMSTANTIAL. See 
 Evidence. 
 
 EVIDENCE, CONCLUSIVE. See Evi- 
 
 DEN< E. 
 
 EVIDENCE, DIRECT. See EVIDENCE, 
 
 EVIDENCE, EXTRINSIC. See Evidence. 
 
 EVIDENTIA. See Pkeuve. 
 
 EVOCATION. In French Law. The act 
 by which a judge is deprived of the cogni- 
 zance of a suit over \vhi< ;h lie bad jurisdic- 
 tion, for the purpose of conferring od other 
 judges the power of deciding it. It is like 
 the process by writ of certiorari. 
 
 EWAGE. A toll paid for water-passage. 
 Cowell. The same as aquagium. 
 
 EWBRICE. Adultery; spouse-breach ; 
 marriage-breach. Cowell; Tomlin, Law Diet. 
 
 EX /EQUO ET BONO (Lat). In justice 
 and good dealing. 1 Story, Eq. Jur. § 965. 
 
 EX CONTRACTU (Lat.). From contract. 
 A division of actions is made in the common 
 and civil law into those arising ex contractu 
 <from contract) and ex delicto (from wrong or 
 tort). 3 Bla. Com. 117 ; 1 Chit. PL 2 ; 1 Mac- 
 keldey, Civ. Law § 193. 
 
 EX DEBITO JUSTITI/E (Lat). As a debt 
 of justice. As a matter of legal right. 3 Bla. 
 Com. 48. 
 
 EX DELICTO (Lat). Actions which arise 
 in consequence of a crime, misdemeanor, or 
 tort are said to arise ex delicto: such are ac- 
 tions of case, replevin, trespass, trover. 1 
 Chit. PI. 2; See Ex Contractu; Actions. 
 
 EX DOLO MALO (Lat). Out of fraud of 
 deceit. When a cause of action arises from 
 fraud or deceit, it cannot be supported; ex 
 dolo malo non oritur actio. See Maxims. 
 
 EX EMPTO. Out of purchase ; founded on 
 purchase. A term of the civil law, adopted 
 by Braeton. Inst. 4, G, 2S ; Brae. fol. 102 ; 
 Black, L. Diet. 
 
 EX GRATIA (Lat.). Of favor. Of grace. 
 Words used formerly at the beginning of 
 
 royal grants, to Indicate that they were not 
 made in consequence of any claim of legal 
 right. 
 
 EX INDU STRIA (Lat.). Intentionally. 
 
 From fixed purpose. 
 
 EX MALEFICIO (Lat). On account of 
 misconduct. By virtue of or out of an Illegal 
 act. Used in the civil law generally, and 
 
 sometimes in the common law. Browne. Stat. 
 Frauds 110, n.; Broom, Leg. Max. 351. 
 
 EX MERO MOTU (Lat). Of mere motion. 
 • The term is derived from the king's letters 
 patent and charters, where it signifies that 
 he grants them of his own mere motion, with- 
 out petition. To prevent Injustice, the courts 
 will, ex tncro molu, make rules and orders 
 
 which the parties would not strictly he enti- 
 Ued to ask for. Bee Ex Gkatia; Ex Peopbio 
 Motu. 
 
 EX MORA (Lat.). From the delay ; from 
 the default 
 
 EX MORE (Lat). According to custom. 
 
 EX NECESSITATE LEGIS (Lat). From 
 the necessity of law. 
 
 EX NECESSITATE REI (Lat). 
 
 ity of the thing. Many acta may be 
 done ex necessitate iei which would not he 
 justifiable without it; and sometimes prop- 
 erty is protected ex necessitate rei which un- 
 der other circumstances would nut be 
 a way of necessity will be allowed; B 
 Edwards, 126 Mass. 445. Property put upon 
 the land of another from necessity cannot be 
 distrained for rent. See Dlstbess. 
 
 EX OFFICIO (Lat.). By virtue of his of- 
 fice. 
 
 Many powers are granted and exercised by 
 public officers which are not expressly dele- 
 gated. A judge, for example, may be ■ 
 ficio a conservator of the peace and a justice 
 of the peace. 
 
 EX OFFICIO INFORMATION. A crim- 
 inal information tiled by the attorney-general 
 
 ex o/jicio on behalf of the crown, in the court 
 of queen's bench, for offences more imme- 
 diately affectiug the government, and to be 
 distinguished from Informations in which the 
 crown is the nominal prosecutor. 4 iiteph. 
 Com. 372. 
 
 EX OFFICIO OATH. An oath used in the 
 Ecclesiastical Courts, by which the pi 
 
 who took it swore to make true answer to all 
 such questions as should be demanded of 
 him. Stephen, Cr. Proc. 
 
 EX PARTE (Lat). Of the one part. 
 Many things may be done ex parte, when the 
 opposite party has had notice. An affidavit 
 or deposition is said to be taken ex parte 
 when only one of the parties attends to tak- 
 ing the same. An Injunction is granted <j- 
 parte when but one side has had a hearing. 
 The term (•./■ parte implies an examination in 
 the presence of one of the parties and the ab- 
 sence of the other. Lincoln v. Cook, 2 Scam. 
 (111.) 62. 
 
 ••/.'./• parte," in the title of a reported 
 Signifies that the name following is that of 
 the party upon whose application the case is 
 beard. 
 
 EX PARTE MATERNA (Lat.). On the 
 mother's side The words ex parte materna 
 and ex parte l"'t< run have a well-known si^'- 
 DificatiOD in the law. They are found used 
 in the books to denote the line, or blood of 
 the mother or lather, and have no such re- 
 stricted or limit.. 1 soiise. as from the mother 
 or father, exclusively; Banta v. Demarest, 
 •_'t N. J. L- 433; - Bla. Com. 224.
 
 EX PARTE PATERNA 
 
 1104 
 
 EX POST FACTO LAW 
 
 EX PARTE PATERNA (Lat.). On the fa- 
 ther's side. See Ex Parte Materna; De- 
 scent and Distribution. 
 
 EX POST FACTO (Lat.). From or by an 
 after act: by subsequent matter. The cor- 
 relative term is ab initio. An estate granted 
 may be made good or avoided by matter ex 
 post facto, when an election is given to the 
 party to accept or not to accept ; 1 Coke 146. 
 A remainderman or reversioner may confirm 
 ex post facto a lease granted by a life-tenant 
 to last beyond his own life. 
 
 EX POST FACTO LAW. A statute which 
 would render an act punishable in a manner 
 in which it was not punishable when it was 
 committed. Fletcher v. Peck, 6 Cra. (U. S.) 
 138, 3 L. Ed. 162; 1 Kent 408. 
 
 A law made to punish acts committed be- 
 fore the existence of such law, which had not 
 been declared crimes by preceding laws. 
 Mass. Declar. of Rights, pt. 1, s. 24; Md. 
 Decl. of Rights, art. 15. 
 
 A law passed after the commission of the 
 offence charged, which inflicts a greater pun- 
 ishment than was annexed to the crime at 
 the time of commission, or which alters the 
 situation of the accused to his disadvantage. 
 In re Wright, 3 Wyo. 47S, 27 Pac. 565, 13 L. 
 R. A. 748, 31 Am. St. Rep. 94. 
 
 A law which, in its operation, makes that 
 criminal which was not so at the time the 
 action was performed ; or which increases 
 the punishment, or, in short, which, in rela- 
 tion to the offence or its consequences, alters 
 the situation of a party to his disadvantage. 
 U. S. v. Hall, 2 Wash. C. C. 366, Fed. Cas. 
 No. 15,285 ; see Lindzey v. State, 65 Miss. 542, 
 5 South. 99, 7 Am. St. Rep. 674 ; Fletcher v. 
 Peck, 6 Cra. (U. S.) 87, 3 L. Ed. 162; Moore 
 v. State, 43 N. J. L. 203, 39 Am. Rep. 55S; 
 Ratzky v. People, 29 N. Y. 124; Thompson 
 v. Utah, 170 U. S. 343, 18 Sup. Ct. 620, 42 L. 
 Ed. 1061 ; In re Medley, 134 U. S. 160, 10 Sup. 
 Ct. 384, 33 L. Ed. 835. 
 
 Parliament, in virtue of its supreme pow- 
 er, may pass such laws, being sustained by 
 discretion alone ; 1 Bla. Com. 46, 160. 
 
 By the constitution of the United States, 
 congress is forbidden to pass ex post facto 
 laws. U. S. Const, art. 1, § 9. And by § 10 
 of the same instrument, as well as by the 
 constitutions of most, if not all, of the states, 
 a similar restriction is imposed upon the 
 state legislatures. Such an act is void as to 
 those cases in which, if given effect, it would 
 be ex post facto; but so far only. In cases 
 arising after it, it may have effect ; for as a 
 rule for the future, it is not ex post facto. 
 
 There is a distinction between ex post fac- 
 to laws and retrospective or retroactive 
 laws: every ex post facto law must necessa- 
 rily be retrospective, but not every retrospec- 
 tive law is an ex post facto law ; in general, 
 ex post facto laws only are prohibited. 
 
 Ex post facto laws differ from retroactive 
 laws. The latter, when imposing taxes or 
 
 providing for their assessment and collection, 
 are not forbidden by the constitution ; the 
 former, in that constitution, has reference to 
 criminal puuishment only; Kentucky Union 
 Co. v. Kentucky, 219 U. S. 140, 31 Sup. Ct. 
 171, 55 L. Ed. 137. Retrospective laws are 
 prohibited by the constitutions of the states 
 of New Hampshire and Ohio. See Rairden 
 v. Holden, 15 Ohio St. 207; John v. Bridg- 
 man, 27 Ohio St. 22; Blackburn v. State, 50 
 Ohio 428, 36 N. E. IS ; Kring v. Missouri, 107 
 U. S. 221, 2 Sup. Ct. 443, 27 L. Ed. 506 ; White 
 v. Wayne, T. U. P. Charlt. 94. 
 
 It is fully settled that the term ex post 
 facto, as used in the constitution, is to be 
 taken in a limited sense as referring to crim- 
 inal or penal statutes alone, and that the 
 policy, the reason, and the humanity of the 
 prohibition against passing ex post facto 
 laws do not extend to civil cases, to cases 
 that merely affect tbe private property of 
 citizens. But the prohibition cannot be evad- 
 ed by giving a civil form to what is, in sub- 
 stance, criminal ; Cummings v. Missouri, 4 
 Wall. (U. S.) 277, 18 L. Ed. 356; In re Gar- 
 land, 4 Wall. (U. S.) 333, 18 L. Ed. 366 ; Bur- 
 gess v. Salmon, 97 U. S. 3S5, 24 L. Ed. 1104 ; 
 Green v. Shumway, 39 N. Y. 41S ; Hare, Am. 
 Const. L. 547. Divorce not being a punish- 
 ment may be authorized for causes happen- 
 ing previous to the passage of the divorce 
 act; Carson v. Carson, 40 Miss. 349. 
 
 The constitution does not prohibit the 
 states from passing retrospective laws gen- 
 erally. Some of the most necessary acts of 
 legislation are, on the contrary, founded up- 
 on the principles that private rights must 
 yield to public exigencies ; Carpenter v. Penn- 
 sylvania, 17 How. (U. S.) 463, 15 L. Ed. 127 ; 
 Watson v. Mercer, 8 Pet. (U. S.) 88, 8 L. Ed. 
 876 ; Charles River Bridge v. Warren Bridge, 
 11 Pet. (U. S.) 421, 9 L. Ed. 773 ; Satterlee v. 
 Matthewson, 2 Pet. (U. S.) 3S0, 7 L. Ed. 458 ; 
 Bank of Hamilton v. Dudley, 2 Pet. (U. S.) 
 523, 7 L. Ed. 496; Dash v. Van Kleeck, 7 
 Johns. (N. Y.) 4S8, 5 Am. Dec. 291 ; Com. v. 
 Lewis, 6 Binn. (Pa.) 271 ; Wellshear v. Kel- 
 ley, 69 Mo. 343 ; United States Mortg. Co. v. 
 Gross, 93 111. 4S3 ; Cooley, Const. Lim. 265 ; 
 Callahan v. Callahan, 36 S. C. 454, 15 S. E. 
 727. See Drake v. Jordan, 73 la. 707, 36 N. 
 W. 653 ; Campbell v. Manderscheid, 74 la. 
 70S, 39 N. W. 92. 
 
 Test oaths of past loyalty to the govern- 
 ment have been held void as ex post facto; 
 In re Garland, 4 Wall. (U. S.) 333,. 18 L. Ed. 
 366 ; except as pre-requisites to the exercise 
 of the elective franchise; Green v. Shum- 
 way, 39 N. Y. 418. A law prohibiting the 
 sale of intoxicating liquors is not ex post 
 facto, State v. Paul, 5 R. I. 1S5 ; or a law 
 imposing a retrospective tax ; Bonny v. Reed, 
 31 N. J. L. 133; Stockdale v. Ins. Co., 20 
 Wall. (U. S.) 323, 22 L. Ed. 348; see, Car- 
 penter v. Pennsylvania, 17 How. (U. S.) 456, 
 15 L. Ed. 127 ; Pullen v. Com'rs of Wake
 
 EX POST FACTO LAW 
 
 1105 
 
 EX POST FACTO LAW 
 
 County, GG N. C. 3G1; or a law providing for 
 the infliction of the death penalty by means 
 of electricity which did not apply to crimes 
 committed before it took effect; People v. 
 Nolan, 115 N. Y. GGO, 21 N. E. 10G0 ; or a 
 law authorizing a divorce for past offences; 
 Carson v. Carson, 4U Miss. 349; Clark v. 
 Clark, 10 N. H. 380, 34 Am. Dec. 105 ; com- 
 pare Dickinson v. Dickenson, 7 N. C. 327, 9 
 Am. Dec. 60S ; or a law providing that the 
 punishment of future crimes shall be in- 
 creased by reason of past offences; State v. 
 Woods, 68 Me. 409. 
 
 Statutes providing fur the revocation of 
 licenses of physicians of bad moral character 
 by state boards have been questioned as be- 
 ing ex post facto, but the case of People v. 
 Hawker, 152 N. Y. 234, 46 N. E. 607, affirmed 
 Hawker v. New York, 170 U. S. 189, 18 Sup. 
 Ct. 573, 42 L. Ed. 1002, is said to have set- 
 tled that they are not ; People v. Reetz, 127 
 Mich. 87. 86 N. W. 39G, affirmed Reetz v. 
 Michigan, 1SS U. S. 505. 23 Sup. Ct. 390, 47 
 L. Ed. 503; Meffert v. Board of Medical Reg- 
 istration, 66 Kan. 710, 72 Pac. 247, 1 L. R. A. 
 (N. S.) 811, affirmed Meffert v. Packer, 195 
 U. S. 625, 25 Sup. Ct 790, 49 L. Ed. 350. See 
 Police Power. 
 
 Where an act provided that one who has 
 been convicted of crime shall no longer en- 
 gage in the practice of medicine, it was 
 held not to be an additional punishment for 
 past offences or ex post facto, but that it sim- 
 ply prescribed the qualifications for the posi- 
 tion and the appropriate evidence of such 
 qualification ; Hawker v. New York, 170 U. 
 S. 189, 18 Sup. Ct. 573, 42 L. Ed. 1002. 
 
 Corporntions cannot pass ex post facto by- 
 laws ; People v. Fire Dept, 31 Mich. 45S. 
 
 Laws under the following circumstances 
 are to be considered ex post facto laws with- 
 in the words and intent of the prohibition: 
 1. Every law that makes an action done, be- 
 fore the passing of the law, and which was 
 innocent when done, criminal, and punishes 
 such action. 2. Every law that aggravates 
 a crime, or makes it greater than it was when 
 committed. 3. Every law that changes the 
 punishment and inflicts a greater punish- 
 ment than the law annexed to the crime when 
 committed (though it would be otherwise of 
 a law mitigating the punishment; 3 Story, 
 Const. 212). 4. Every law that alters the le- 
 gal rules of evidence, and receives less, or 
 different, testimony than the law required at 
 the time of the commission of the offence, in 
 order to convict the offender ; Calder v. Bull, 
 3 Dall. (U. S.) 390. 1 L. Ed. G4S. This con- 
 struction, it is said, "has been accepted and 
 followed as correct by the courts ever since" ; 
 Cooley, Const. Lim. 325 ; its substance re- 
 mains unchanged; Com. v. Kalck, 239 Pa. 
 533, S7 Atl. 61. See People v. McNulty, 93 
 Cal. 427, 26 Pac. 597, 29 Pac. 61 ; Com. v. 
 Graves, 155 Mass. 163, 29 N. E. 579, 16 L. R. 
 A. 256. 
 
 This classification has been generally 
 
 Bouv — 70 
 
 adopted as accurate and complete, but is not 
 entirely so. Thus u law hus been decided to 
 be ex post facto which was intended to pun- 
 ish a criminal act, prosecution as to which 
 was already barred by a statute of limita- 
 tions; Moore v. State, 43 N. J. L. 203, 39 Am. 
 Rep. 558; but an act which reduces a pun- 
 ishment is not ex post facto as to crimes 
 miitcd prior to Its enactment; People v. 
 Hayes, 140 N. Y. 484, 35 N. E. 951, 23 L. EL 
 A. 830, 37 Am. St. Rep. 572 ; St 
 65 N. C. 311; Dolan v. Thomas, 12 
 
 .) 421; Mclnturf v. Stat App. 
 
 335. The statement under the fourth 
 also requires modification. Convictions un- 
 der changes in the rules of eridi ace have 
 been held not unconstitutional; Sto 
 People, 53 X. Y. 164, L3 Am. Rep. 492; 
 quins v. Com., 9 Cush. (Mass.) -TO; state v. 
 Williams, 1 1 Rich. (S. C.) 281 ; Mr 
 State, 31 Tex. Or. R. 597, 21 s. w. 764, 37 
 Am. St. Rep. 834; Maguiar v. Henry. 84 k, 
 1, 4 Am. St. Rep. 182; Robinson v. Sta 
 ind. 452: Thompson v. Missouri, 171 i". s. 
 380, is Sup. Ct. 922, 13 L. Ed. 204; though it 
 seems to be settled that a law requiring a 
 less degree of evidence cannot be applied to 
 a previous offence. But changes in the 
 forms, in the manner of passing sentei 
 the qualifications of jurors, do not fall with- 
 in the prohibition; Com. v. Phillips, 11 Pick. 
 (Mass.) 28; Lybarger v. State, 2 Wash 
 27 Pac. 449, 1029; In re Wright, 3 Wy< 
 27 Pac. 5G5. 13 L. R. A. 748, 31 Am. St. Rep 
 94; City Council of Anderson v. O'Donnell, 
 29 S. C. 355, 7 S. E. 523, 1 L R. A. 632, 13 
 Am. St Rep. 728; nor will a provision re- 
 ducing the number of peremptory challenges 
 on a prosecution for a capital offence, t 
 applied to cases where the offence was 
 mitted before the change was made ; Mathis 
 v. State. 31 1'la. 29L 12 South. 681; 
 v. state. 86 Ala. 617, 6 South. ~>-\ nor an 
 amendment which centers jurisdiction in a 
 criminal cause upon a division of the su- 
 preme court less in numbers and different in 
 personnel from the court as organized when" 
 the crime was committed; Duncan v. Mis- 
 souri, 152 I'. S. 377, l I sup. Ct 570, 38 I.. Ed. 
 485. A i hange of criminal procedure applied 
 to the trial of crimes committed before it 
 took effect is not ex post facto, unless it af- 
 fects Borne substantia] right to which the 
 
 1 was entitled when the alleged of- 
 was committed; state v. carter. 33 La. 
 Ann. 1214; Kring v. Missouri, 107 D. S. 221, 
 2 sup. Ct 443, 27 I- Ed. 
 
 statutes regulating pro< edure, if they leave 
 untouched all the substantial prbfc 
 With whnli existing law surrounds tie 
 son accused of crime, are not within the con- 
 stitutional Inhibition; Duncan v. Missouri, 
 152 i . s. 378, n sup. Ct r.To. 38 I.. Ed. 485; 
 Thompson V. Missouri, 171 U. S. 380, 18 Sup. 
 Ct 922, 43 L. Ed. 204. A statute admitting 
 evidence of a particular kind in a criminal 
 case upon an issue of fact, which was not
 
 EX POST FACTO LAW 
 
 1106 
 
 EX POST FACTO LAW 
 
 admissible under the rules of evidence at the 
 time the offence was committed, is not ex 
 post facto; Thompson v. Missouri, 171 U. S. 
 3S0, 18 Sup. Ct. 922, 43 L. Ed. 204 ; though in 
 his classification of ex post facto laws Mr. 
 Justice Chase, in Calder v. Bull, 3 Dall. (U. 
 S.) 3S6, 1 L. Ed. 648, includes every law that 
 alters the legal rules of evidence, and re- 
 quires less or different testimony than the 
 law required at the time of the commission 
 of the offence in order to convict the offender. 
 
 In Missouri, after conviction of a capital 
 offence and verdict set aside because of the 
 admission of papers for comparison of hand- 
 writing merely, the legislature changed the 
 law so as to admit such papers; on a new 
 trial, it was held merely a change of a rule 
 of evidence, which could be applied in the 
 trial of an offence committed before its enact- 
 ment ; Thompson v. Missouri, 171 U. S. 380, 
 18 Sup. Ct. 922, 43 L. Ed. 204. 
 
 The supreme court of the United States 
 has decided that a constitutional provision, 
 requiring all grand and petit jurors to be 
 qualified electors, able to read and write, and 
 enjoining on the legislature to provide by law 
 for listing and drawing persons so qualified, 
 but declaring that, until otherwise provided 
 by law, all crimes should be tried as though 
 no change had been made (Const. Miss. 1S90), 
 went into effect immediately on its adoption, 
 so far as the qualifications of jurors were 
 concerned ; that one who committed a crime 
 after the adoption of the constitution, but 
 before the legislature passed a new jury law, 
 could be tried, after the passage of such a 
 law, by a jury selected under its provisions; 
 and that, as the new law did not aggravate 
 the crime previously committed, or inflict a 
 greater punishment, or alter the rules of evi- 
 dence, its application to the trial of the ac- 
 cused did not make it an ex post facto law; 
 Gibson v. Mississippi, 162 U. S. 565, 16 Sup. 
 Ct. 904, 40 L. Ed. 1075. But where the consti- 
 tution of Utah provided for the trial in 
 courts of general jurisdiction of criminal cas- 
 es not capital by a jury of eight, it was held 
 ex post facto in its application to felonies 
 committed before the territory became a 
 state, because the constitution of the United 
 States, gave the accused, at the time of the 
 commission of the offence, the right to be 
 tried by a jury of twelve persons, and made 
 it unlawful to deprive him of his liberty ex- 
 cept by the unanimous verdict of such a jury ; 
 Thompson v. Utah, 170 U. S. 343, 18 Sup. Ct. 
 620, 42 L. Ed. 1061. 
 
 For a review of the history of the ex post 
 facto clause of the constitution in connection 
 with its adoption, and with its subsequent 
 construction by the federal and state courts, 
 see Kriug v. Missouri, 107 U. S. 221, 2 Sup. 
 Ct. 443, 27 L. Ed. 506. 
 
 See also In re Medley, 134 U. S. 160, 10 
 Sup. Ct. 384, 33 L. Ed. 835; Cooley, Const. 
 Lim. ch. ix. ; Sto. Const. §§ 1345, 1373 ; Wade, 
 
 Retro. L. ; Pat. Fed. Restr. ch. vi. ; Johnson, 
 Ex Post Facto Laws; Black, Const. Prohibi- 
 tions ; Pomeroy, Const. Law ; 4 L. Mag. & 
 Rev., 4th 59; Savigny, Confl. Laws; 22 Am. 
 L. Rev. 523 ; Myer, Vested Rights; 3 L. R. A. 
 181, note ; 1 L. R. A. 632, note ; Fisher, Evo- 
 lution of Const. ; Retrospective. 
 
 EX PR0PRI0 M0TU (Lat). Of his own 
 accord. 
 
 EX PR0PRI0 VIG0RE (Lat.). By its own 
 
 force. 2 Kent 457. 
 
 EX REL. See Ex Relatione. 
 
 EX RELATIONE (Lat). At the informa- 
 tion of ; by the relation. A bill in equity, for 
 example, may in many cases be brought for 
 an injunction to restrain a public nuisance 
 ex relatione (by information of) the parties 
 immediately interested in or affected by the 
 nuisance; IS Ves. 217; Van Bergen v. Van 
 Bergen, 2 Johns. Ch. (N. Y.) 382 ; Corning v. 
 Lowerre, 6 Johns. Ch. (N. Y.) 439 ; Pennsyl- 
 vania v. Bridge Co., 13 How. (U. S.) 518, 14 
 L. Ed. 249 ; Georgetown v. Canal Co., 12 Pet. 
 (U. S.) 91, 9 L. Ed. 1012. 
 
 It is frequently abbreviated ex rel. See 
 Relator. 
 
 EX TEMPORE (Lat). From the time; 
 without premeditation. 
 
 EX VI TERMINI (Lat). By force of the 
 term. 
 
 EX VISCERIBUS (Lat. from the bowels). 
 From the vital part, the very essence of the 
 thing. 10 Co. 24 b; Homer v. Shelton, 2 
 Mete. (Mass.) 213. Ex visceribus verborum 
 (from the mere words and nothing else) ; 1 
 Story, Eq. § 980. 
 
 EX VISITATI0NE DEI (Lat). By or 
 from the visitation of God. In the ancient 
 law, upon a prisoner arraigned for treason or 
 felony standing mute, a jury was impanelled 
 to inquire whether he stood obstinately mute, 
 or was dumb ex visitatione Dei; 4 Steph. 
 Com. 391. This phrase is frequently employ- 
 ed in inquisitions by the coroner, where 
 it signifies that the death of the deceased is 
 a natural one. 
 
 EXACTION. A wilful wrong done by an 
 officer, or by one who, under color of his of- 
 fice, takes more fee or pay for his services 
 than the law allows. 
 
 Between extortion and exaction there is this dif- 
 ference: that in the former case the officer extorts 
 more than his due, when something is due to him ; 
 in the latter, he exacts what is not his due, when 
 there is nothing due to him. Co. Litt. 36S. 
 
 EXACTOR. In Old English and Civil Law. 
 A collector. Exactor regis (collector for the 
 king). A collector of taxes or revenue. Vicat, 
 A r oc. Jur. ; Spelman, Gloss. The term exac- 
 tion early came to mean the wrong done by 
 an officer, or one pretending to have author- 
 ity, in demanding or taking any reward or 
 fee for that matter, cause, or thing which the 
 law allows not Terrnes de la Ley.
 
 EXAMINATION 
 
 1107 
 
 EXAMINATION 
 
 EXAMINATION. In Criminal Law. The 
 investigation by an authorized magistrate 
 of the circumstances which constitute the 
 grounds for an accusation against a person 
 
 air. . ted on a criminal charge, with a view 
 to discharging the person so arrested, or to 
 securing his appearance for trial by the 
 
 proper court, and to preserving the evidence 
 relating to the matter. 
 
 Practically, it is accomplished by bringing the 
 person accused, together with witnesses, before a 
 magistrate (generally a justice of the peace), who 
 thereupon takes down in writing the evidence of the 
 witnesses, and any statements which the prisoner 
 may see fit to make. If no cause for detention 
 appears, the party is discharged from arrest. If 
 sufficient cause of suspicion appears to warrant 
 putting him on trial, he is committed, or required 
 to give bail or enter into a recognizance to appear 
 at the proper time for trial. The witnesses are also 
 frequently required to recognize for their appear- 
 ance ; though in ordinary cases only their own re- 
 cognizance is required. The magistrate signs or 
 certifies the minutes of the evidence which he has 
 taken, and it is delivered to the court before whom 
 the trial is to be had. The object of an examination 
 is to enable the judge and jury to see whether the 
 witnesses are consistent, and to ascertain whether 
 the offence is bailable. 2 Leach 552. And see 4 
 Sharsw. Bla. Com. 296. 
 
 At common law, the prisoner could not be 
 interrogated by the magistrate; hut under 
 the statutes 1 & 2 Phil. & M. c. 13, 2 & 3 
 .Phil. & M. c. 10, the provisions of which 
 have been substantially adopted in most of 
 the states, the magistrate is to examine the 
 prisoner as well as the witnesses. 1 Greeul. 
 Ev. § 224; 4 Bla. Com. 20(3; Rose. Cr. Ev. 44; 
 Ky. & M. 432. 
 
 The examination should be taken and com- 
 pleted as soon as the nature of the case will 
 admit; Cro. Eli/.. 820; 1 Hale, PI. Cr. 585; 
 2 id. 120. The prisoner must not be put up- 
 on oath, but the witnesses must ; 1 Phil. Ev. 
 106; Archb. Cr. Pr. & PI. 380. The prisoner 
 formerly had no right to the assistance of 
 an attorney; but the privilege was granted 
 at the discretion of the magistrate; 2 Dowl. 
 & R. 8G ; 1 B. & C. 37. Now, however, a pris- 
 oner is permitted to have counsel as a mat- 
 ter of course. The magistrate's return and 
 certificate are conclusive evidence, and ex- 
 clude parol evidence, of what the prisoner 
 said on that occasion with reference to the 
 charge; 2 C. & K. 223; 5 C. & P. 162; 1 Mood. 
 & M. 403. See Confession; Recognizance. 
 
 In Practice. The interrogation of a wit- 
 ness, in order to ascertain his knowledge as 
 to the facts in dispute hot ween parties. 
 
 The examination in chief is that made by 
 the party calling the witness; the cross-ex- 
 amination is that made by the other party. 
 In the examination in chief the counsel can- 
 not ask leading questions, except in particu- 
 lar cases. See Cross-Examination ; Leading 
 Questions. 
 
 The examination Is to be made in open court, 
 when practicable ; but when, on account of age, 
 sickness, absence from the jurisdiction, or other 
 cause, the witness cannot be so examined, tbi Q In 
 civil causes it may be made before authorized 
 commissioners. 
 
 The interrogation of a 
 sirous of performing some act, or availing 
 of the law. in or- 
 der to ascertain if all the r< 
 the law have been compl ed v. Ith, • 
 by and before an officer havii 
 i lie purpose. 
 
 There are many acts which e:;:i he of validity and 
 binding force only upon an 
 
 many states, a married woman must be privately 
 examined as to whether 6he has given her consent 
 freely and without restraint to a di :ie ap- 
 
 pears to have executed ; see A 
 insolvent who wishes to take the h> 
 vent laws, one who is about to I- 
 another in legal proceedings, a bankrupt, etc., mu.--t 
 submit to an examination. 
 
 EXAMINED COPY. A phrase applied to 
 designate a paper which is a copy of a rec- 
 ord, public book, or register, and which has 
 been compared with the original. 1 Campb. 
 469. 
 
 Such examined copy is admitted in evi- 
 dence, because of the public inconven 
 which would arise if such record, public 
 book, or regis: cr were removed from 
 to place, and because any fraud or mistake 
 made in the examined copy would be » 
 ly detected; 1 Greenl. Ev. § 01 ; 1 Stark. Ev. 
 180. But in an answer in chancery on which 
 the defendant was indicted for perjui 
 where the original must he produced in order 
 to identify the party by proof of handwrit- 
 ing, an examined copy would not be evidence; 
 1 Mood. & R. ISO. See Copy. 
 
 EXAMINERS. 
 cial Examines. 
 
 See Examination; 
 
 EXAMINERS IN CHANCERY. Officers 
 who examine, upon oath, witnesses produced 
 on either side upon such interrogatories as 
 the parties to any suit exhibit for that pur- 
 pose. Cowell. 
 
 The examiner is to administer an oath t<> 
 the party, and then repeat the interrogatories 
 one at a time, writing down the answer 
 himself; 2 Dan. Ch. Pr. 1062. Anciently, 
 the examiner was one of the judges of the 
 court: hence an examination before t 
 aminer is said to be an examination in 
 court; 1 Dan. Ch. Pr. 1053. 
 
 EXANNUAL ROLL. A roll containing the 
 illeviable lines and desperate debts, which 
 was read yearly to the sheriff (in the an- 
 cient way of delivering the sheriff's ac- 
 counts), to see what might he gotten. Hale, 
 Sheriffs <'>7; CowelL 
 
 EXCAMB. In Scotch Law. To exchange. 
 Excambion, exchange The words are evi- 
 dently derived from the Latin ucainhiuin. 
 
 Bell, Diet See Exchange. 
 
 EXCAMBIATOR. An exchanger of lands ; 
 a broker. Obsolete. 
 
 EXCAMBIUM (Lat). In English Law. 
 Exchange; a recompense. 1 Reeve, Hist 
 
 Eng. Law 112.
 
 EXCELLENCY 
 
 1108 
 
 EXCEPTION 
 
 EXCELLENCY. A title given by courtesy 
 to the governors of the states, to the Presi- 
 dent of the United States, and to ambassa- 
 dors. 
 
 EXCEPTIO REI JUDICAT/E. A Roman 
 law term equivalent to a plea of former 
 judgment. Bigelow, Estoppel 41. 
 
 EXCEPTION (Lat excipere: ex, out of, 
 capere, to take). A clause in a deed by 
 which the lessor excepts something out of 
 that which he before granted by the deed. 
 
 The exclusion of something from the ef- 
 fect or operation of the deed or contract 
 which would otherwise be included. 
 
 An exception differs from a reservation (q. v.), — 
 the former being always of part of the thing grant- 
 ed, the latter of a thing not in esse, but newly cre- 
 ated or reserved ; the exception is of the whole of 
 the part excepted ; the reservation may be of a 
 risht or interest in *ne particular part affected by 
 the reservation. See Ballou v. Harris, 5 R I. 419 ; 
 Hammond v. Woodman, 41 Me. 177, 66 Am. Dec. 219 ; 
 State v. Wilson, 42 Me. 9 ; Adams v. Morse, 51 Me. 
 498; Gould v. Glass, 19 Barb. (N. Y.) 192; 2 B. & 
 C. 197. The two words, however, are often used 
 indiscriminately ; Stockwell v. Couillard, 1l9 Mass. 
 231 ; Barnes v. Burt, 38 Conn. 541. An exception 
 differs, also, from an explanation, which, by the use 
 of a videlicet, proviso, etc., is allowed only to ex- 
 plain doubtful clauses precedent, or to separate and 
 distribute generals into particulars ; Cutler v. 
 Tufts, 3 Pick. (Mass.) 272. See Reservation. 
 
 To make a valid exception, these things 
 must concur : first, the exception must be 
 by apt words, as, "saving and excepting," 
 etc. ; see Keeler v. Wood, 30 Vt. 242 ; Ballou 
 v. Harris, 5 R. I. 419; Hammond v. Wood- 
 man, 41 Me. 177, 66 Am. Dec. 219; Midgett 
 v. Wharton, 102 N. C. 14, 8 S. E. 778 ; second, 
 it must be of part of the thing previously 
 described, and not of some other thing; 
 third, it must be of part of the thing only, 
 and not of all, the greater part, or the ef- 
 fect of the thing granted ; Richardson v. Mil- 
 burn, 11 Md. 339; Adams v. Warner, 23 Vt. 
 395 ; an exception, therefore, in a lease which 
 extends to the whole thing demised is void; 
 fourth, it must be of such thing as is severa- 
 ble from the demised premises, and not of an 
 inseparable incident ; Backenstoss v. Stahler's 
 Adrn'rs, 33 Pa. 251, 75 Am. Dec. 592; Good- 
 rich v. R. R., 37 N. H. 167; fifth, it must be 
 of such a thing as he that excepts may have, 
 and which properly belongs to him ; sixth, 
 it must be of a particular thing out of a gen- 
 eral, and not of a particular thing out of a 
 particular thing ; seventh, it must be particu- 
 larly described and set forth; a lease of a 
 tract of land except one acre would be void, 
 because that acre was not particularly de- 
 scribed; Co. Litt. 47 a; Hay v. Storrs, Wright 
 (Ohio) 711; Jackson v. Hudson, 3 Johns. 
 (N. Y.) 375, 3 Am. Dec. 500; Darling v. 
 Crowell, 6 N. H. 421; Altman v. McBride, 4 
 Strobh. (S. C.) 208; see Painter v. Water 
 Co., 91 Cal. 74, 27 Pac. 539. Exceptions 
 against common right and general rules are 
 construed as strictly as possible; Hays v. 
 Askew, 50 N. C. 63. When a grantor makes 
 
 a valid exception, the thing excepted remains 
 the property of himself or his heirs; but if 
 he has no valid title to it, neither he nor 
 his heirs can recover ; Fisher v. Min. Co., 97 
 N. C. 95, 4 S. E. 772. 
 
 In Equity Practice. The allegation of a 
 party, in writing, that some pleading or pro- 
 ceeding in a cause is insufficient. 
 
 In Civil Law. A plea. Merlin, Re'pert. 
 
 Declinatory exceptions are such dilatory 
 exceptions as merely decline the jurisdiction 
 of the judge before whom the action is 
 brought. La. Code Proc. 
 
 Dilatory exceptions are such as do not 
 tend to defeat the action, but only to retard 
 its progress. 
 
 Declinatory exceptions have this effect, as well 
 as the exception of discussion offered by a third 
 possessor or by a surety in an hypothecary action, 
 or the exception taken in order to call in the war- 
 rantor. Noble v. Martin, 7 Mart. N. S. (La.) 282 ; 
 Howard v. The Columbia, 1 La. 420. 
 
 Peremptory exceptions are those which 
 tend to the dismissal of the action. 
 
 Some relate to forms, others arise from the law. 
 Those which relate to forms tend to have the cause 
 dismissed, owing to some nullities in the proceed- 
 ings. These must be pleaded in limine litis. Per- 
 emptory exceptions founded on law are those which, 
 without going into the merits of the cause, show 
 that the plaintiff cannot maintain his action, either 
 because it is prescribed, or because the cause of 
 action has been destroyed or extinguished. These 
 may be pleaded at any time previous to definitive 
 judgment ; Pothier. Proc. Civ. pt. 1, c. 2, ss. 1, 2, 3. 
 These, in the French law, are called Fins de non 
 recevoir. 
 
 In Practice. Objections made to the deci- 
 sions of the court in the course of a trial. 
 See Bill of Exception. 
 
 EXCEPTION TO BAIL. An objection to 
 the special bail put in by the defendant to 
 an action at law made by the plaintiff on 
 grounds of the insufficiency of the bail. 1 
 Tidd, Pr. 255. 
 
 EXCESS. When a defendant pleaded to 
 an action of assault that the plaintiff tres- 
 passed on his land, and he would not depart 
 when ordered, whereupon he molliter manus 
 imposuit, gently laid hands on him, the repli- 
 cation of excess was to the effect that the 
 defendant used more force than necessary. 
 Wharton. 
 
 EXCESSIVE BAIL. Bail which is per se 
 unreasonably great and clearly dispropor- 
 tionate to the offence involved, or which un- 
 der the peculiar circumstances appearing is 
 shown to be so in the particular case. Ex 
 parte Ryan, 44 Cal. 558; Ex parte Duncan, 
 53 Cal. 410. 
 
 EXCHANGE. In Commercial Law. A ne- 
 gotiation by which one person transfers to 
 another funds which he has in a certain 
 place, either at a price agreed upon or which 
 is fixed by commercial usage. 
 
 This transfer is made by means of an instrument 
 which represents such funds and is well known by 
 the name of a bill of exchange (q. v.). The price 
 above the par value of the funds so transferred i»
 
 EXCHANGE 
 
 1109 
 
 EXCHANGE 
 
 called the premium of exchange, and If under that 
 value the difference is called the discount,— either 
 being called the rate of exchange. 
 
 The par of exchange is the value of the 
 money of one country in that of another, 
 n nd is either real or nominal. The nominal 
 par is that which has been fixed by law or 
 usage, and, for the sake of uniformity, is 
 not altered, the rate of exchange alone 
 fluctuating. The real par is that based on 
 the weight and fineness of the coins of the 
 two countries, and fluctuates with changes 
 in the coinage. The nominal par of exchange 
 in this country on England, settled in 1709 
 by act of congress, was four dollars and for- 
 ty-four cents for the pound sterling; but by 
 successive changes in the coinage this value 
 has been increased, the real mint par at 
 present being $4,866%. The course of ex- 
 change means the quotations for any given 
 time. 
 
 The transfer of goods and chattels for oth- 
 er goods and chattels of equal value. This 
 is more commonly called barter. Where a 
 party deposits wheat with a mill company, 
 expecting to receive a proportionate amount 
 of tlour, it constitutes an exchange and not 
 a sale; Martin v. Mill Co., 49 Mo. App. 23. 
 One cannot, as having been defrauded there- 
 by, rescind an exchange of property, without 
 tendering a return of his property to the 
 other, unless it is absolutely worthless; 
 Johnson v. Flynn, 97 Mich. 5S1, 56 N. W. 939. 
 The distinction between a sale and ex- 
 change of property is rather one of shadow 
 than of substance. In both cases the title 
 to property is absolutely transferred, and 
 the same rules of law are applicable to the 
 transaction, whether the consideration of the 
 contract is money or by way of barter. It 
 can make no essential difference in the rights 
 and obligations of parties that goods and 
 merchandise are transferred and paid for by 
 other goods and merchandise instead of by 
 money, which is but. the representative of 
 value or property; Com. v. Clark, 14 Gray 
 (Mass.) 372. 
 
 The profit which arises from a maritime 
 loan, when such profit is a percentage on 
 the money lent, considering it in the light 
 of money lent in one place to be returned 
 in another, with a difference in amount in 
 the sum borrowed and that paid, arising 
 from the difference of time and place. The 
 term is commonly used in this sense by 
 French writers. Hall. Mar. Loans 56, n. 
 
 The place where merchants, captains of 
 vessels, exchange-agents, brokers, etc.. assem- 
 ble to transact their business. Code dc 
 Covim. art. 71. See Stock EXCHANGE. 
 
 In Conveyancing. A mutual grant of equal 
 interests in land, the one in consideration 
 of the other. 2 Bla. Com. 323; Littleton 62; 
 Shep. Touchst, 289; Digby, R. P. 3GS. It is 
 said that exchange in the United States does 
 not differ from bargain and sale. 1 Bouvier, 
 Inst. n. 2059. 
 
 There are five circumstances necessary to 
 an exchange. That the estates given be 
 equal. That the word excambium, or ex- 
 change, be used, — which cannot be SU] 
 by any other word, or described by circum- 
 locution. That there be an execution I 
 try or claim in the life of the parties. That 
 if it be of things which lie In grant, it be 
 by deed. That if the lands lie In - 
 counties, or if the thing lie In grant, ti 
 they be in one county.it be by deed lnd< 
 In practice this mode of conveyance 
 nearly ohsolete. 
 
 See Cruise. Dig. tit. 32; Com. Dig.; Co. 
 Litt. 51; 1 Washb. It. P. 159; Ca - v. Thomp- 
 son, 1 X. II. 65, s Am. Dec. 3G; Maydwell v. 
 Carroll, 3 Harr. & J. (Md.'i 361; Stroll v. 
 Swafford Bros., 79 la. 135, 44 N. W. J'.'.:: 
 Close v. Crossland, 47 Minn. 500, . r ,u X. \V. 
 094; Williamson v. Woten, 132 Ind. 20 
 N. E. 791; Gunter v. Leckey, 30 Ala. 591; 
 Real Estate Bbokeb. 
 
 EXCHANGE, BILLS OF. See Bills of 
 
 Exchange. 
 
 EXCHEQUER (Law Lat. fCOCCOrium; 
 
 Xor. Fr. eschequirr) . In English Law. A 
 department of the government which has 
 the management of the collection of the 
 king's revenue. 
 
 The name is said to be derived from the chequer- 
 ed cloth which covered the table on which some of 
 the king's account^ were made up and the amounts 
 indicated by counters. 
 
 It consisted of two divisions, one for the 
 receipt of revenue, the other for administer- 
 ing justice. Co. 4th Inst. 103; 3 Bla. 
 44, 45. See Court or Exchequer ; Court of 
 Exchequer Chamber. 
 
 EXCHEQUER BILLS. Bills of credit Is- 
 sued by authority of parliament. 
 
 They constitute the medium of transaction 
 of business between the bank of England 
 and the government The exchequer bills 
 contain a guarantee from government which 
 secures the holders against loss by fluctua- 
 tion. Wharton; McCulloch, Comm. Diet 
 
 EXCISE. An inland imposition, paid 
 sometimes upon the consumption of the 
 modity, and frequently upon the retail sale, 
 i Bla. Cum. 318; Story, Const fl 960; Cooley, 
 Tax. 4. See Oliver v. Washington Mills, 11 
 Allen (Mass.) 268. 
 
 Excises are a species of taxes, consisting 
 ally of duties laid upon the manufac- 
 ture, sale, or consumption of commodities 
 Within the country, or upon certain callings 
 or occupations, often taking the form of ex- 
 actions for licenses to pursue them. 1 
 v. Trust Co., 157 I'. S. 429, 15 Sup Ct 673, 
 39 L. Ed. 759. 
 
 In Art. I, sec. 8, of the constitution con- 
 gress has power to lay and collect taxes, du- 
 ties. Imposts, and excises to pay the debts 
 and provide for the common defense and gen- 
 eral welfare of the United States, but all du-
 
 EXCISE 
 
 1110 
 
 EXCISE 
 
 ties, imposts and excises shall be uniform 
 throughout the United States. The power 
 of congress under this clause is co-extensive 
 with the territory of the United States and 
 extends to the territories; Loughborough v. 
 Blake, 5 Wheat. (U. S.) 317, 5 L. Ed. 98; 
 The Cherokee Tobacco, 11 Wall. (U. S.) GIG, 
 20 L. Ed. 227. 
 
 Duties, imposts, and excises were used com- 
 prehensively to cover customs and excise du- 
 ties imposed on importation, consumption, 
 manufacture and sale of certain commodi- 
 ties, privileges, particular business transac- 
 tions, vocations, occupations and the like; 
 Thomas v. U. S., 192 U. S. 363, 24 Sup. Ct. 
 305, 48 L. Ed. 481. "Excises usually look to a 
 particular subject, and levy burdens with 
 reference to the act of manufacturing them, 
 selling them, etc. They are or may be as 
 varied in form as the acts or dealings with 
 which the taxes are concerned. Impost du- 
 ties take every conceivable form, as may by 
 the legislative authority be deemed best for 
 the general welfare. They have been at all 
 times often specific. They have sometimes 
 been discriminatory, particularly when deem- 
 ed necessary by reason of the tariff legisla- 
 tion of other countries;" Knowlton v. Moore, 
 178 U. S. 41, 88, 20 Sup. Ct. 747, 44 L. Ed. 
 969. 
 
 Taxes held to be excises, and to be dis- 
 tinguished from direct taxes, are : Upon the 
 business of an insurance company; Pacific 
 Ins. Co. v. Soule, 7 Wall. (U. S.) 433, 19 
 L. Ed. 95; on the circulation of state banks; 
 Veazie Bank v. Fenno, 8 Wall. (U. S.) 533, 
 19 L. Ed. 482 ; or notes of any town, city, or 
 municipal corporation paid out by any bank 
 or banker; Merchants' Nat. Bank v. U. S., 
 101 U. S. 1, 25 L. Ed. 979 ; a succession tax ; 
 Knowlton v. Moore, 178 U. S. 41, 20 Sup. Ct. 
 747, 44 L. Ed. 969; on the interest paid by 
 a corporation on its bonds; Michigan C. R. 
 Co. v. Collector, 100 U. S. 595, 25 L. Ed. 647 ; 
 on carriages; Hylton v. U. S., 3 Dall. (U. 
 S.) 171, 1 L. Ed. 556 ; on passing title to real 
 estate; Scholey v. Rew, 23 Wall. 331, 23 L. 
 Ed. 99; internal revenue tax; U. S. v. Vas- 
 sal-, 5 Wall. (U. S.) 462, 18 L. Ed. 497; 
 Springer v. U. S., 102 U. S. 586, 26 L. Ed. 
 253; stamp duties; Treat v. White, 181 U. 
 S. 264, 21 Sup. Ct. 611, 45 L. Ed. 853 ; Pat- 
 ton v. Brady, 184 U. S. 608, 22 Sup. Ct. 493, 
 46 L. Ed. 713; on oleomargarine or artificial 
 butter; McCray v. U. S., 195 U. S. 27, 24 
 Sup. Ct. 769, 49 L. Ed. 78, 1 Ann. Cas. 561 ; 
 on sales of property at an exchange; Nicol 
 v. Ames, 173 U. S. 509, 19 Sup. Ct. 522, 43 
 L. Ed. 786; on the business of sugar refin- 
 ing; Spreckels Sugar Refin. Co. v. McClain, 
 192 U. S. 397, 24 Sup. Ct. 376, 48 L. Ed. 496; 
 on contracts of sale of stock ; Thomas v. U. 
 S., 192 U. S. 363, 24 Sup. Ct. 305, 48 L. Ed. 
 481 ; on agreements to sell shares of stock, 
 denominated calls by New York stockbro- 
 kers ; Treat v. White, 181 U. S. 264, 21 Sup. 
 Ct. 611, 45 L. Ed. 853; on tobacco manufac- 
 
 tured for consumption ; Patton v. Brady, 184 
 U. S. 608, 22 Sup. Ct. 493, 46 L. Ed. 713. 
 
 Taxes held not valid as excises are: On 
 the occupation of an importer the same as 
 on the imports; Brown v. Maryland, 12 
 Wheat. (U. S.) 419, 6 L. Ed.. 678; on the in- 
 come of United States securities the same 
 as a tax on the securities ; Weston v. 
 Charleston, 2 Pet. (U. S.) 449, 7 L. Ed. 481; 
 income from an office the same as a tax on 
 the office; Minis v. U. S., 16 Pet. (U. S.) 435, 
 10 L. Ed. 791 ; on a bill of lading the same 
 as a duty on the article represented by it; 
 Almy v. California, 24 How. (U. S.) 169, 16 
 L. Ed. 644 ; a tax upon interest on bonds as 
 upon the security ; Northern C. R. Co. v. 
 Jackson, 7 Wall. (U. S.) 262, 19 L. Ed. 88; 
 on auction sales of goods as a tax on the 
 goods sold ; Cook v. Pennsylvania, 97 U. S. 
 566, 24 L. Ed. 1015; tax on income from in- 
 terstate commerce as a tax on the commerce ; 
 Philadelphia & S. Mail S. S. Co. v. Pennsyl- 
 vania, 122 U. S. 326, 7 Sup. Ct. 1118, 30 L. 
 Ed. 1200; Leloup v. Port of Mobile, 127 U. 
 S. 640, 8 Sup. Ct. 1383, 32 L. Ed. 311; tax 
 on the rents or income of real estate is a 
 direct tax; Pollock v. Trust Co., 157 U. S. 
 429, 15 Sup. Ct. 673, 39 L. Ed. 759; tax 
 upon income from municipal bonds; id.; li- 
 cense fees on certain lines of business in a 
 single territory; Binns v. U. S., 194 U. S. 
 486, 24 Sup. Ct. 816, 48 L. Ed. 1087. 
 
 It is within the power of congress to in- 
 crease an excise as well as a property tax, 
 and such an increase may be made at least 
 while the property is held for sale and before 
 it has passed into the hands of the con- 
 sumer ; and it is no part of the function of 
 the court to inquire into the reasonableness 
 of the excise, either as respects the amount 
 or the property upon which it is imposed; 
 Patton v. Brady, 184 U. S. 608, 22 Sup. Ct. 
 493, 46 L, Ed. 713. See Tax. 
 
 Though an excise tax be so onerous that 
 it amounts to a destruction of the business, 
 or even if intended to do so, it is within the 
 power of congress and the courts have no 
 power to revise its judgment ; McCray v. 
 U. S., 195 U. S. 27, 24 Sup. Ct. 769, 49 L. Ed. 
 78; Patton v. Brady, 184 U. S. 608, 22 Sup. 
 Ct. 493, 46 L. Ed. 713, where it was said 
 "that it is no part of the function of a court 
 to inquire into the reasonableness of the ex- 
 cise, either as respects the amount, or the 
 property upon which it is imposed." 
 
 Territory acquired as a result of the Span- 
 ish War became territory appurtenant to the 
 United States, but not a part of it within 
 the revenue clause of the constitution; 
 Downes v. Bidwell, 182 U. S. 244, 21 Sup. Ct. 
 770, 45 L. Ed. 1088; Dooley v. U. S., 183 U. 
 S. 153, 22 Sup. Ct. 62, 43 L. Ed. 128. 
 
 EXCLUSIVE (Lat. ex, out, claudere, to 
 shut). Not including; debarring from par- 
 ticipation. Shut out; not included. 
 
 An exclusive right or privilege, as a copy- 
 right or patent, is one which may be ex-
 
 EXCLUSIVE 
 
 mi 
 
 EXCUSE 
 
 ercised and enjoyed only by the person au- 
 thorized, while all others are forbidden to 
 interfere. 
 
 EXCOMMUNICATION. An ecclesiastical 
 
 sentence pronounced l>y a spiritual judge 
 against a Christian man, by which he is 
 
 excluded from the body of the church, and 
 disabled to bring any action or sue any 
 person in the common-law courts. Bac. Abr. ; 
 Co. Litt. 133, 134; Nance v. Busby, 91 Tenn. 
 303, IS S. W. S74, 15 L. R. A. SOI. 
 
 In early times it was the most frequent and the 
 most severe method of executing ecclesiastical cen- 
 sure, although proper to be used, said Ju 
 (Nov. 123), only upon grave occasions. The effect of 
 it was to remove the excommunicated person not 
 only from the sacred rites, but from the society of 
 men. In a certain sense it interdicted the use of fire 
 and water, like the punishment spoken of by Caesar 
 (lib. 6, de Bell. Gall.) as inflicted by the Druids. 
 Innocent IV. called it the nerve of ecclesiastical 
 discipline. On repentance, the excommunicated per- 
 son was absolved and received again to communion. 
 These are said to be the powers of binding and loos- 
 ing,— the keys of the kingdom of heaven. This kind 
 of punishment seems to have been adopted from the 
 Roman usage of interdicting the use of fire and 
 water. Fr. Duaren, De Sacris Eccles. Alinisteriis, 
 lib. 1, cap. 3. See Ridley, View of the Civil and 
 Ecclesiastical Law 245. 
 
 It was the process by which the English ecclesias- 
 tical courts enforced their process. If the excom- 
 municate did not submit within 40 days, the court 
 signified the fact to the crown and thereon a writ 
 excommunicato capiendo issued to the sheriff, who 
 took and imprisoned the offender till he submitted. 
 When he submitted, the bishop signified this fact, 
 and a writ de excommunicato deliberando (to re- 
 lease an excommunicate) issued. An excommuni- 
 cate could not serve upon juries, be a witness in 
 any court, or bring an action, real or personal. In 
 1813 the writ de contumace capiendo was substituted 
 to enforce appearance and punish contempt, the 
 rules applicable being the same as before. Excom- 
 munication is still a punishment by the earlier 
 writ for offences of ecclesiastical cognizance, but 
 the only penalty is imprisonment not exceeding six 
 months ; 1 Holdsw. Hist. E. L. 400. For the form 
 of the writ see id. 433. 
 
 EXCOMMUNICATO CAPIENDO (Lat. for 
 taking an excommunicated person). In Ec- 
 clesiastical Law. A writ issuing out of chan- 
 cery, founded on a bishop's certificate that 
 the defendant had been excommunicated, re- 
 turnable to the king's bench. 4 Bla. Com. 
 415; Bac. Abr. Excommunication, E. See 
 Cro. Eliz. 224, 680 ; Cro. Car. 421 ; Cro. Jac. 
 5G7; 1 Salk. 293. 
 
 EXCULPATION. See Letters of Excul- 
 pation. 
 
 EXCUSABLE HOMICIDE. The killing of 
 a human being, when the party killing is not 
 altogether free from blame, but the necessity 
 which renders it excusable may lie said to 
 have been partly induced by his own act. 1 
 East, PI. Cr. 220. See Homicide. 
 
 EXCUSATIO (Lat.). In Civil Law. Ex- 
 cuse. A cause from exemption from a duty, 
 such as absence, Insufficient age, etc. Vicat, 
 
 Voc. Jur., and reference there given. 
 
 EXCUSE. A reason alleged for the do- 
 ing or not (bung a thing. 
 
 This word presents two ideas, differing essentially 
 from each other. In one case an excuse may be 
 
 made In order to show that the party accused Is not 
 guilty ; in another, by showing that though guilty 
 he is less so than he appears to be. Take, for ex- 
 ample, the case of a sheriff who has an execution 
 against an individual, and who, in performance of 
 his duty, arrests him: In an action by the defend- 
 ant against the sheriff, the latter may prove the 
 facts, and this shall be a sufficient excuse for him ; 
 this is an excuse of the first kind, or a complete 
 justification ; the sheriff was guilty of no offence. 
 But suppose, secondly, that the sheriff has an execu- 
 tion against Paul, and by mistake, and without any 
 malicious design, he arrests Peter instead of Paul: 
 the fact of his having the execution against Paul 
 and the mistake being made will not justify the 
 sheriff, but it will extenuate and excuse his conduct, 
 and this will be an excuse of the second kind. 
 
 Persons are sometimes excused for the commis- 
 sion of acts which o»dinarily are crimes, either be- 
 cause they had no intention of doing wrong, or be- 
 cause they had no power of judging, and therefore 
 had no criminal will, or, having power of judging, 
 they had no choice, and were compelled by neces- 
 sity. Among the first class may be placed infants 
 under the age of discretion, lunatics, and married 
 women committing certain offences In the presence 
 of their husbands. Among acts of the second kind 
 may be classed the beating or killing another in 
 self-defence, the destruction of property in order 
 to prevent a more serious calamity, as the tearing 
 down of a house on fire to prevent its spreading U 
 the neighboring property, and the like. See Dalloz, 
 Diet. 
 
 EXCUS3I0 (Lat.). In Civil Law. Ex- 
 hausting the principal debtor before proceed- 
 ing against the surety. Discussion is used 
 in the same sense in Scotch law. Vicat, 
 Excvssionis Beneficium. 
 
 EXECUTE. To complete: to make; to 
 perform; to do; to follow out 
 
 The term is frequently used in law; as, 
 to execute a deed, which means to make a 
 deed, including especially signing, sealing, 
 and delivery. To execute a contract is to 
 perform the contract. To execute a use is 
 to merge or unite the equitable estate of 
 the cestui que use in the legal estate, under 
 the statute of uses. To execute a writ is 
 to do the act commanded in the writ. To 
 execute a criminal is to put him to death 
 according to law, in pursuance of his sen- 
 tence. 
 
 EXECUTED. Done; completed; effec- 
 tuated; performed; fully disclosed; vested; 
 giving present right of employment. 
 
 EXECUTED CONSIDERATION. See CON- 
 SIDERATION. 
 
 EXECUTED CONTRACT. One which has 
 been Cully performed. The statute of frauds 
 does not apply to such contracts; And 
 School Tp. v. Milroy Lodge 1\ ft A. M.. L30 
 I nd. 108, i 1 '.) N. E. -111. 30 Am. St. Re] 
 Harris v. Harper, 48 Kan. -lis, 29 Pac 697; 
 Brown v. Bailey, l.v.i Pa. 121, 28 Atl. 245; 
 Lagerfelt v. McKie, 100 Ala. 430, 14 E 
 281; Doherty v. Doe, 18 Colo. 456, .".:: Pac 
 L65; Showalter v. McDonnell, S3 Tex. 158, 
 
 IS S. \Y. P.M. See COH rSACTS. 
 
 EXECUTED ESTATE. An estate where- 
 by a present interest passes to and resides 
 in the tenant, not dependent upon any sub- 
 sequent circumstance or contingency. They
 
 EXECUTED ESTATE 
 
 1112 
 
 EXECUTION 
 
 are more commonly called estates in posses- 
 sion. 2 Bla. Com. 162. 
 
 An estate where there is vested in the 
 grantee a present and immediate right of 
 present or future enjoyment. An estate 
 which confers a present right of present en- 
 joyment. 
 
 When the right of enjoyment in possession Is to 
 arise at a future period, only the estate is executed ; 
 that is, it is merely vested in point of interest: 
 where the right of immediate enjoyment is annexed 
 to the estate, then only is the estate vested in pos- 
 session. 1 Prest. Est. 62; Fearne, Cont. Rem. 392. 
 
 Executed is synonymous with vested. 1 
 Washh. R. P. 11. 
 
 EXECUTED REMAINDER. One giving a 
 present interest, though the enjoyment may 
 be future. Fearne, Cont. Rem. 31; 2 Bla. 
 Com. 168. See Remainder. 
 
 EXECUTED TRUST. A trust of which 
 the scheme has in the outset been completely 
 declared. Ad. Eq. 151. One in which the 
 devise or trust is directly and wholly de- 
 clared by the testator or settler, so -as to 
 attach on the lands immediately under the 
 deed or will itself. 1 Greenl. Cruise, Dig. 
 385; 1 Jac. & W. 570. "A trust in which 
 the estates and interest in the subject-mat- 
 ter of the trust are completely limited and 
 defined by the instrument creating the trust, 
 and require no further instruments to com- 
 plete them." Bisph. Eq. 31. See Trust ; Ex- 
 ecutory Trust. 
 
 Also used when, by the statute of uses, the 
 property passes directly to the beneficiary, 
 being executed by the statute. See Executed 
 Use. 
 
 EXECUTED USE. A use with which the 
 possession and legal title have been united 
 by the statute of uses. 1 Steph. Com. 339; 2 
 Sharsw. Bla. Com. 335, note; 7 Term 342; 
 12 Ves. Ch. 89 ; 4 Mod. 380. 
 
 EXECUTED WRIT. A writ the command 
 in which has been obeyed by the person to 
 whom it. was directed. 
 
 EXECUTION. The accomplishment of a 
 thing; the completion of an act or instru- 
 ment ; the fulfilment of an undertaking. 
 Thus, a contract is executed when the act 
 to be done is performed; a deed is executed 
 when it is signed, sealed, and delivered. See 
 Gaskill v. King, 34 N. C. 221. Where the 
 party is present and directs another to sign 
 for him, no written authority is necessary ; 
 Mut. Ben. Life Ins. Co. v. Brown, 30 N. J. 
 Eq. 193; McMurtry v. Brown, 6 Neb. 368; 
 Jansen v. McCahill, 22 Cal. 5U3, S3 Am. Dec. 
 84; Fitzpatrick v. Engard, 175 Pa. 393, 34 
 Atl. 803 ; Reed, St. of Fr. § 1063. 
 
 In Criminal Law. Putting a convict to 
 death, agreeably to law, in pursuance of his 
 sentence. This is to be performed by the 
 sheriff or his deputy ; (see 4 Bla. Com. 403 ;) 
 or under the laws of the United States, by 
 the marshal. Under the Pennsylvania prac- 
 tice, the governor issues a mandate to exe- 
 
 cute the sentence of death. The origin of 
 the custom and the forms of mandate and 
 return thereto are found in Com. v. Hill, 185 
 Pa. 385, 39 Atl. 1055, per Mitchell, J. He 
 points out that the superior courts at West- 
 minster issued warrants of death, and the 
 Court of King's Bench, being held before the 
 king himself, had further power to issue ex- 
 ecution of judgments on attainder in parlia- 
 ment or in other courts. The practice of 
 mandates prevails in other states. See Com. 
 v. Costley, 118 Mass. 35; Lowenberg v. Peo- 
 ple, 27 N. Y. 336 ; In re Dyer, 56 Kan. 489, 
 43 Pac. 783 ; Holden v. Minnesota, 137 U. S. 
 483, 11 Sup. Ct. 143, 34 L. Ed. 734; State v. 
 Oscar, 13 La. Ann. 297. 
 
 Where a day of execution is fixed by the 
 court and is an integral part of the sentence, 
 and the day has passed, the court should 
 fix a new day ; Com. v. Hill, 185 Pa. 397, 39 
 Atl. 1055; Ex parte Howard, 17 N. H. 545; 
 Nicholas v. Com., 91 Va. 813, 22 S. E. 507; 
 State v. Cardwell, 95 N. C. 643 ; In re Cross, 
 146 U. S. 271, 13 Sup. Ct. 109, 36 L, Ed. 969 
 (apparently on a statutory direction). See 
 Crimes ; Electrocution ; Garrot&j Guillo- 
 tine ; Hanging. 
 
 In Practice. Putting the sentence of the 
 law in force. 3 Bla. Com. 412. The act of 
 carrying into effect the final judgment or de- 
 cree of a court 
 
 The writ which directs and authorizes the 
 officer to carry into effect such judgment. 
 
 Final execution is one which authorizes 
 the money due on a judgment to be made 
 out of the property of the defendant. 
 
 Execution quousque is such as tends to 
 an end, but is not absolutely final : as, for 
 example, a capiat ad satisfaciendum, by 
 virtue of which the body of the defendant 
 is taken, to the intent that the plaintiff: 
 shall be satisfied of his debt, etc., the impris- 
 onment not being absolute, but until he shall 
 satisfy the same. 6 Co. 87. 
 
 Execution, in civil actions, is the mode of 
 obtaining the debt or damages or other 
 thing recovered by the judgment ; and it is 
 either for the plaintiff or defendant. For 
 the plaintiff upon a judgment in debt, the 
 execution is for the debt and damages ; or 
 in assumpsit, covenant, case, replevin, or 
 trespass, for the damages and costs; or in 
 detinue, for the goods, or their value, with 
 damages and costs. For the defendant upon 
 a judgment in replevin, the execution at com- 
 mon law is for a return of the goods, to 
 which damages are superadded by the stat- 
 utes 7 Hen. VIII. c. 4, § 3, and 21 Hen. VIII. 
 c. 19, § 3 ; and in other actions upon a judg- 
 ment of non pros., non suit, or verdict, the 
 execution is for the costs only ; Tidd, Pr. 
 993. 
 
 After final judgment signed, and even be- 
 fore it is entered of record, the plaintiff 
 may, in general, at any time within a year 
 and a day, and whilst the parties to the 
 judgment continue the same, take out exe-
 
 EXECUTION 
 
 1113 
 
 EXECUTION 
 
 cution ; provided there be no writ of error 
 depending or agreement to the contrary, or r 
 where this is allowed, security entered for 
 stay of execution. But after a year and a 
 day from the time of signing judgment the 
 plaintiff cannot regularly take out execu- 
 tion without reviving the judgment l>y scire 
 facias, unless a fieri facias, or capias ad sat- 
 isfaciendum, etc., was previously sued out, 
 returned, and filed, or he was hindered from 
 suing it out by a writ of error; and if a 
 writ of error be brought, it is, generally 
 speaking, a supersedeas of execution from 
 the time of its allowance; provided bail, 
 when necessary, be put In and perfected, in 
 due time. See Tidd, Pr. 994 ; Elliott v. May- 
 field. 3 Ala. 223. 
 
 Writs of execution are judicial writs issu- 
 ing out of the court where the record is 
 upon which they are grounded. Hence, when 
 the record has been removed to a higher 
 court by writ of error or certiorari, or on 
 appeal, either the execution must issue out 
 of that court, or else the record must be re- 
 turned to the inferior court by a remittitur 
 (q. v.) for the purpose of taking out execu- 
 tion in the court below. The former is the 
 practice in England ; the latter, in some of 
 the United States. 
 
 The object of execution in personal ac- 
 tions is effected in one or more of the three 
 following ways. 1. By the seizure and sale 
 of personal property of the defendant 2. 
 By the seizure of his real property, and 
 either selling it or detaining it until the is- 
 sues and profits are sufficient to satisfy the 
 judgment. 3. By seizing his person and 
 holding him in custody until he pays the 
 judgment or is judicially declared insolvent. 
 These proceedings, though taken at the 
 instance and under the direction of the par- 
 ty for whom judgment is given, are con- 
 sidered the act of the law itself, and are in 
 all cases performed by the authorized min- 
 ister of the law. The party or his attorney 
 obtains, from the offie'e of the court where 
 the record is, a writ, based upon and reciting 
 the judgment, and directed to the sheriff 
 (or, where he is interested or otherwise dis- 
 qualified, to the coroner) of the county, 
 commanding him, in the name of the sov- 
 ereign or of the state, that of the goods and 
 chattels or of the lands and tenements of 
 the defendant in his bailiwick he cause to 
 be made or levied the sum recovered, or 
 that he seize the person of the defendant, 
 as the case may be, and have the same be- 
 fore the court at the return day of the writ. 
 This writ is delivered by the party to the 
 officer to whom it is directed, who thence- 
 forth becomes responsible for his perform- 
 ance of its mandate, and in case of omission, 
 mistake, or misconduct is liable in damages 
 to the person injured, whether he be the 
 plaintiff, the defendant, or a stranger to the 
 writ. 
 
 When property is sold under execution, 
 
 the proceeds are applied to the satisfaction 
 of the judgment and the costs and ch 
 of the proceedings; and the surplus, if there 
 be any, is paid to the defendant in e 
 tion. 
 
 Execution against personal pre; 
 When the pro] i oodfl and 
 
 chattels, in which are Included terms for 
 years, the writ used is the fieri facias {q. v.). 
 If, after levying on the goods, etc., under a 
 fieri facias, they remain unsold for want of 
 buyers, etc., a supplemental writ i 
 which is called the At 
 
 common law, goods and chattels might 
 be taken in execution under a U art 
 though now perhaps the most frequei 
 of this writ is in executions against 
 property. 
 
 Where it is sought to reach an equitable 
 interest a bill in equity is sometimes Bled 
 in aid of an execution; Lent v. Mauley, 75 
 Fed. 627, 21 C. C. A. 457. 
 
 When the property consisted of chost 
 action, whether debts due the defendant or 
 any other sort of credit or interest belong- 
 ing to him, it could not be taken in e 
 tion at common law; but now. under statu- 
 tory provisions in many of the states, such 
 property may be reached by a process in the 
 nature of an attachment, called an attach- 
 ment execution or execution attachment. 
 See Attachment: CREDrroBS' Bill. 
 
 Execution against real estate. Where 
 lands are absolutely liable for the payment 
 of debts, and can be sold in execution, the 
 process is by fieri facias and vendition 
 ponas. In Pennsylvania the land cannot 
 be sold in execution unless the sheriff's jury, 
 under the fieri facias, find that the profits 
 will not pay the debt in seven years. But, 
 practically, lands are almost never extend- 
 ed. And, in general, under common-law 
 practice, lands are not subject to sale under 
 execution, until after a levy has been made 
 under the fieri facias, and they are appi 
 under an inquisition. They are then liable 
 to be sold under a venditioni expo 
 
 There are in England writs of execution 
 against land which are not in general use 
 here. The extent (q. v.), or extendi facias, 
 is the usual process for the king's debt. The 
 levari facias (g. v.) is also used for the 
 king's debt, and for the subject on a r< 
 zance or statute staple or merchant {q. v.), 
 and on a Judgment In 8* i . In which 
 
 latter case it is also generally employi 
 this country. 
 
 Execution against the person. This is ef- 
 fected by the writ of capias ad satisfaci- 
 endum, under which the sheriff arrests the 
 dant and imprisons him till he satisfies 
 the judgment or Is discharged by proa 
 law; Freem. Ex. 451. See Insolvency. 
 This execution is not final, the imprison- 
 ment not being absolute: whence it has 
 been called an execution quousque; 6 Co. 87. 
 Besides the ordinary judgment for the
 
 EXECUTION 
 
 1114 
 
 EXECUTIONER 
 
 payment of a sum certain, there are spe- 
 cific judgments, to do some particular thing. 
 To this the execution must correspond : on 
 a judgment for plaintiff in a real action, 
 the writ is a habere facias seisiuam; in 
 ejectment it is a habere facias possessionem; 
 for the defendant in replevin, as has already 
 been mentioned, the writ is de retorno ha- 
 bendo. 
 
 Still another sort of judgment is that in 
 rem, confined to a particular thing: such 
 are judgments upon mechanics' lions and 
 municipal claims, and, in the peculiar prac- 
 tice of Pennsylvania, on scire facias upon 
 a mortgage. In such cases the execution 
 is a writ of levari facias. A confession of 
 judgment upon warrant of attorney, with 
 a restriction of the lien to a particular tract, 
 is an analogous instance; but in such case 
 there is no peculiar form of execution ; 
 though if the plaintiff should, in violation 
 of his agreement, attempt to levy on other 
 land than that to which his judgment is 
 confined, the court on motion would set 
 aside the execution. 
 
 An execution issued in direct violation of 
 an express agreement not to do so, except 
 in a certain contingency which has not hap- 
 pened, will be set aside; Feagley v. Norbeck, 
 127 Pa. 238, 17 Atl. 900. 
 
 The lien of an execution from the judg- 
 ment or decree of a court of record relates 
 to its teste, and attaches to all personalty 
 owned by the debtor between the teste and 
 the levy so as to defeat the title of all in- 
 termediate purchasers; Edwards v. Thomp- 
 son, 85 Tenn. 720, 4 S. W. 913, 4 Am. St. Rep. 
 807 ; not only in the county in which judg- 
 ment was rendered, but everywhere in the 
 state; Cecil v. Carson, 86 Tenn. 139, 5 S. 
 W. 532. A sale* under execution transmits 
 only the debtor's estate, in the same plight 
 and subject to all the equities under which 
 he held it; Threadgill v. Redwine, 97 N. C. 
 241, 2 S. E. 526. 
 
 In Connecticut, Massachusetts, and Maine 
 by common law and immemorial usage, un- 
 der a judgment against a town, the prop- 
 erty of any inhabitant may be taken in exe- 
 cution ; Bloomfield v. Bank, 121 U. S. 121, 
 7 Sup. Ct. 865, 30 L. Ed. 923. 
 
 See Exemption; Fieri Facias; Home- 
 stead ; Sheriff. 
 
 EXECUTION PAREE. In French Law. A 
 
 right founded on an act passed before a 
 notary, by. which the creditor may imme- 
 diately, without citation or summons, seize 
 and cause to be sold the property of his 
 debtor, out of the proceeds of which to re- 
 ceive his payment. It imports a confession 
 of judgment, and is not unlike a warrant 
 of attorney. La. Code of Proc. art, 732; 6 
 Toullier, n. 208; 7 id. 99. 
 
 EXECUTIONER. The name given to him 
 who puts criminals to death, according to 
 their sentence; a hangman. 
 
 In the United States there are no execu- 
 tioners by profession. It is the duty of the 
 sheriff or marshal to perform this office, or 
 to procure a deputy to do it for him. 
 
 EXECUTIVE. That power in the govern- 
 ment which causes the laws to be executed 
 and obeyed. 
 
 It is usually confided to the hands of the chief 
 magistrate ; the president of the United States is 
 invested with this authority under the national gov- 
 ernment ; and the governor of each state has the 
 executive power of the state in his hands. 
 
 The officer in whom the executive power 
 is vested. 
 
 EXECUTIVE COMMITTEE. See Direc- 
 tors. 
 
 EXECUTIVE POWER. Authority exer- 
 cised by that, department of government 
 which is charged with the administration 
 or execution of the laws as distinguished 
 from the legislative and judicial functions. 
 
 " 'Executive power,' which the constitu- 
 tion declares shall be 'vested' in the presi- 
 dent, includes power to carry into execu- 
 tion the national laws — and including such 
 other powers, not legislative or judicial in 
 their nature, as might from time to time 
 be delegated to the president by congress 
 — as the prosecution of war when declared 
 — and to take care that the law be faith- 
 fully executed." 1 Curtis, Const. Hist. 578. 
 
 The separation of the three primary govern- 
 mental powers as found in £he constitution of the 
 United States and of the separate states is the 
 culmination of a revolution which had long been in 
 progress in Europe. As is pointed out by a recent 
 writer all governmental power was formerly united 
 in the monarch of the middle ages. As the result of 
 experience there was a separation of the state from 
 the government, the former being termed the con- 
 stitution-making power and the latter the instru- 
 mentalities by which administration was from time 
 to time set in motion and carried on. Further ad- 
 vances in experience indicated the necessity of the 
 distribution of powers by which there should be a 
 deliberative body for the formulation of the rules 
 and regulations under which the state should exist 
 and its affairs be administered ; another which 
 should be the medium by which these rules and 
 regulations forming the body of municipal law 
 should be carried into effect ; and a third to which 
 should be committed the functions known in the 
 science of government as judicial. The latter, under 
 the government of the United States, has reached 
 its highest development and exercises an authority 
 in some instances over the other two departments 
 of the government elsewhere unknown, even going 
 so far as to define the limits of their authority and 
 to declare void legislative acts. See Constitution- 
 al. This theory of the distribution of the powers of 
 government among three distinct authorities, inde- 
 pendent of each other, was first formulated bj 
 Montesquieu, Esprit des Lois, b. xi. c. vi. The ab- 
 solute independence of the three branches of gov- 
 ernment which was advocated by Montesquieu has 
 not been found entirely practicable in practice, and, 
 although the threefold division of powers is the 
 basis of the American constitution, there are many 
 cases in which the duties of one department are to 
 a certain extent devolved upon and shared by an- 
 other. This is illustrated in the United States and 
 in many of the states by the veto power which 
 vests in the executive a part of the legislative 
 authority, and on the other hand by the require- 
 ment of the confirmation by one branch of the legis- 
 lature of executive appointments. The practical
 
 EXECUTIVE POWER 
 
 1115 
 
 EXECUTIVE POWEU 
 
 difficulty In the way of an exact division of powers 
 is thus well expressed: "Although the executive, 
 legislative, and supreme judicial powers of the gov- 
 ernment ought to be forever separate and distinct, 
 it is also true that the science of governmi Qt la a 
 practical one ; therefore, while each should firmly 
 maintain the essential powers belonging to it, it 
 cannot be forgotten that the three co-ordinate parts 
 constitute one brotherhood whose common trust re- 
 quires a mutual toleration of the occupancy of what 
 seems to be a 'common because of vicinage' border- 
 ing on the domains of each;" Brown v. Turner, 70 
 N. C. 93, 102. In England, there is in parliament a 
 practical union of all the governmental powers, that 
 body having absolute power of selecting the agents 
 through whom, in fact, is exercised the executive 
 power theoretically vested in the crown, and the 
 final judicial authority on appeal remaining in the 
 House of Lords. There is, notwithstanding, a com- 
 plete recognition of the threefold nature of govern- 
 mental power which is not lost nor destroyed by 
 the unity of the final depositary of it all. 
 
 While the science of government in modern times 
 may be said to accept the general theory of the 
 separation of powers, subject to limitations and ex- 
 ceptions suggested, the application of the theory 
 has not been uniform. Great difficulty has been 
 found in practice in determining the depositary of 
 executive power and whether it should be vested In 
 one man or a board of control, the latter being sup- 
 posed to insure deliberation and possibly to prevent 
 tyranny, and the other being more conducive to ef- 
 ficient administration. See 2 Sto. Const. §§ 1419-23 ; 
 Montesq. Espr. de L. b. xi. ch. vi. ; De Lolme, 
 Const. Eng. b. 2, ch. 2; Federalist No. 70; 1 Kent 
 271. The necessity for the latter has led to the al- 
 most universal adoption of the plan of having a 
 single executive head, and the principal remaining 
 difficulty has been the extent and character of the 
 power to be entrusted to it. This is in part the re- 
 sult of the effort to apply too rigidly the theory of 
 the absolute separation of powers already shown to 
 be impracticable. Another difficulty has been said 
 to arise from the failure to recognize that execu- 
 tive power really comprises two functions, the polit- 
 ical or governmental and the administrative. The 
 former concerns the relations of the chief executive 
 authority with the great powers of government, the 
 latter relates to the practical management of the 
 public service. It has been said that the executive 
 authority, as understood in the American states, is 
 mainly a political chief, that in France and to a 
 less extent in England its position as an adminis- 
 trator is more important, while In the federal gov- 
 ernment In this country it is both, as it is also in 
 Germany ; 1 Goodnow, Comp. Adm. L. 51. 
 
 The proper treatment of this subject involves the 
 consideration of the systems of executive adminis- 
 tration developed in the principal countries of the 
 world which have adopted the principle of the 
 distribution of powers. Only the briefest summary, 
 however, is here practicable. 
 
 The general theory of the distribution of powers 
 in Great Britain is very, much like that in the 
 princely governments of Germany. The residuum 
 of governmental powers is in the crown, and the 
 crown may exercise all authority not expressly 
 otherwise delegated, but it rests with parliament to 
 decide ultimately what powers shall be exercised 
 by the crown and how it shall exercise them ; here- 
 in it differs from the German system. Fr«m the 
 comprehensive Norman idea of royalty which com- 
 bined all the sovereign powers of the Saxon and 
 Dane with those of the feudal theory of mom 
 exemplified at the time in France, there developed 
 at first hereditary and despotic power which was 
 gradually limited by the of the concurrent 
 
 action of parliament for the imposition of taxes and 
 the enactment of laws affecting the ordinary rela- 
 tions of individuals. Later it was considered that 
 a law once enacted could not be changed without 
 the consent of parliament, and finally the latter 
 body assumed the right *o initiate as well as ap- 
 prove laws, and the ciown lost its original power 
 of veto which has certainly become obsolete, though 
 it has been said to be merely dormant and sus- 
 
 ceptible of being revived; 2 Todd, Pari. Govt, in 
 Eng. 390. See 1 Stubbs, Const. Hist, of Eng. 33S. 
 The result of this development is that parliament 
 has assumed most of tbe jough 
 
 many matters not regulated by It are controlled by 
 the crown which exercises a large ordinance power 
 both Independent and 
 
 has lost both the taxing power and the judicial 
 power, but retains In large part Its old executive 
 powers, and its action Is com 
 
 a body whose power has gradually developed, viz., 
 the privy council. The crown may do anything 
 which It Is not forbidden to do and possesses the 
 administrative as well as the pol r. It 
 
 may create offices as well as fill them, and both 
 remove and direct the Incumbents. Th< 
 therefore, the chief both of the administrative and 
 political departments of the executive power, its 
 position being modified by the pi ; t Its 
 
 advisers, without whom it cannot act, must p 
 the confidence of the majority in the house of com- 
 mons. The principle of parliamentary responsibility 
 puts the crown in the position of reigning but not 
 governing; but so long as it possesses the confi- 
 dence of the house of commons it has very ex- 
 tensive executive powers, and in council may d 
 war and make treaties, which In other countries 
 can be done only with the consent of the 
 lature. The crown is In theory irresponsible, but 
 when its ministers are in a minority in the house 
 of common it chooses new ministers who will have 
 the confidence of parliament, or dissolves parlia- 
 ment in the hope that the new body will have con- 
 fidence in the existing ministers, but the theory 
 is that in all cases the crown and not parliament 
 administers. See Pom. Const. Law 5 176 ; 1 Goodn. 
 Comp. Adm. L. ch. vi. 
 
 In France the executive power is vested in a 
 president elected by the legislature. His position is 
 said by a recent writer, probably on account of the 
 monarchical traditions in France, to be more im- 
 portant from the administrative point of view and 
 less from a political point of view of the 
 
 President of the United States, he having no veto 
 power. He has quite an unlimited power of ap- 
 pointment and also a very extensive power of re- 
 
 not only of officers appointed by hit 
 but of local administrative officers; as mayors of 
 communes; Law, Apr. 5. 1SS4: and he may dissolve 
 local and municipal legislative bodies in the de- 
 partments and communes ; LL. Aug. 10. 1871, and 
 Apr. 5, 1SS4. In addition to his power of executing 
 laws, he has in many cases authority to supplement 
 the law without any delegation of leglsative power 
 by what are known as decrees. This supplemental 
 power is accorded to him under a constitutional 
 provision that he shall watch over and secure the 
 execution of the laws, and the dlffere 
 the Interpretation put uron this and the similar 
 provision in the United States constitution is ac- 
 credited to the mo of the coun- 
 try, and the resulting idea that ti. y gov- 
 ernmental power is vested In the executive and not, 
 as in this country, in congress. The presi . 
 also held to a greater responsibility for his 
 than In the American system. 1 Goodnow, Comp. 
 
 Adm. L. Ch. iv. 
 
 In Germany the conception of executive power Is 
 much broader than in ihe United States, and it Is 
 more Important from the administrative point of 
 ["here are Important constitutional limita- 
 tions on the action of the Prince, or ex 
 of the subdivisions of the empire; but in the ab- 
 sence of such limitations he is recognized as having 
 the go . r, being as in 
 
 possessor of the residuum of the g 1 pow- 
 
 er. The limitations upon his action by t 
 tion are found in tho requirement of 
 consent for the validity of legislative acts affect- 
 ing freedom of person and property and the finan- 
 cial affairs of the government, judicial power ad- 
 ministered by courts independent of the control of 
 the ex' d the necessity that each 
 
 official acts must be countersigned by a minister 
 who is responsible for it eiiuer to the legislature
 
 EXECUTIVE POWER 
 
 1116 
 
 EXECUTIVE POWER 
 
 or to the criminal courts. The administrative pow- 
 ers are very extensive, including that of appoint- 
 ment and removal, and a very wide power of di- 
 rection, together with the authority to make de- 
 crees or ordinances as to all matters not regulated 
 in detail by legislation. 
 
 In the imperial government, the Emperor occu- 
 pies, from the administrative point of view, about 
 the same position as the President of the United 
 States. He has a general power of appointment 
 and of administrative direction, which latter is, 
 however, exercised under the responsibility of the 
 chancellor, who must countersign all acts by which 
 it is exercised; but just what the responsibility of 
 the latter officer is seems to be undefined other than 
 that he may be called upon to defend his policy be- 
 fore the federal council. The Emperor does not 
 have any ordinance power except such as is ex- 
 pressly mentioned in the constitution or delegated 
 by the legislature, and in the exercise of it he often 
 requires the consent of the federal council. He is 
 entirely irresponsible, id. ch. v. A leading German 
 commentator regards- the governmental form of the 
 empire as a republic; 1 Zorn. Das Reichsstaats- 
 recht, 162. 
 
 In the United States, the federal execu- 
 tive power is vested in the president. In 
 all the states the chief executive is the gov- 
 ernor. With respect to the power of the lat- 
 ter the differences in the state constitutions 
 make it necessary, for brief statements of 
 the executive officers and their duties, to re- 
 fer for more detailed information to the 
 constitutions of the states, while compara- 
 tive views of the provisions on particular 
 points may be found in Stimson, Am. Stat 
 Law. Many features are common to most 
 of the states and, making due allowance for 
 differences of detail, the character of the of- 
 ficer is substantially the same. In general, 
 it may be noted that he is commander of 
 the state militia, subject to the paramount 
 federal constitutional control when it is in 
 the actual service of the United States: he 
 has in most cases a pardoning power (ex- 
 cept in some states for treason), as to which, 
 however, there is a growing tendency to lim- 
 it it by requiring the recommendation of a 
 board of pardons, either such in name or ef- 
 fect, usually composed of several executive 
 officers, virtute officii; he has usually a veto 
 power which compels the reconsideration of 
 legislation by a two-thirds vote in most cas- 
 es, but in some, three-fifths, and in others a 
 mere majority ; in most of the states he has 
 power to summon the legislature in extra 
 session, and to adjourn its sessions when the 
 two houses disagree as to the time. As a 
 rule, the governor's power of appointment is 
 confined to minor state officials, and he has 
 no power of removal except for cause and 
 after a hearing. He is usually charged with 
 the duty of sending messages to the legisla- 
 ture containing his views and recommenda- 
 tions upon public questions. The constitu- 
 tional powers vested in the governor alone 
 are addressed to and regulated by his own 
 uncontrolled discretion; for example, where 
 an officer assuming to act as governor, in his 
 absence, had issued a proclamation conven- 
 ing the legislature in extraordinary session, 
 
 the governor having returned previous to the 
 time named for the meeting, and issued a 
 second proclamation, revoking the first, it 
 was held that, the power of convening the 
 legislature being discretionary, the call might 
 be recalled before the meeting took place; 
 People v. Parker, 3 Neb. 409, 19 Am. Rep. 634. 
 
 Under the United States constitution the 
 governor of a state may call upon the presi- 
 dent, when necessary, for aid in the enforce- 
 ment of the laws. 
 
 His limited power of removal makes his 
 power of direction and administration very 
 slight. He is in effect a political rather than 
 an administrative officer, his powers Of the 
 former class having increased while those 
 of the latter class have been gradually cur- 
 tailed. In this respect his relative position 
 is quite the reverse of that of the president. 
 For a discriminating review of this subject, 
 see 1 Goodn. Comp. Adm. L. ch. iii. 
 
 The right of the executive officers named 
 in the constitution to exercise all the powers 
 properly belonging to the executive depart- 
 ment is given indisputably by the constitu- 
 tion ; State v. Savage, 64 Neb. 684, 90 N. W. 
 898, 91 N. W. 557. They may, unless limited 
 by constitution or statute, determine as to 
 the time and place where the exercise of 
 their jurisdiction is necessary, and the peo- 
 ple and local officers of that locality have no 
 constitutional or statutory right to be heard 
 on that question ; Gilmore v. Penobscot, 107 
 Me. 345, 78 Atl. 454. 
 
 The executive power possessed by the 
 president must be considered historically in 
 order to reach an adequate view, both of 
 its present scope and limitations and its 
 growth since the adoption of the constitu- 
 tion. It is to be observed primarily that in 
 the United States there is the fundamental 
 condition that the executive power, whether 
 of president or governor, is expressly grant- 
 ed, and the residuum of sovereignty is in the 
 legislature, either federal or state as the case 
 may be, and not in the executive, as in 
 France and Germany, actually so, or, as in 
 England, theoretically so. This remark is 
 equally true as to its general results, not- 
 withstanding decisions, that the express 
 grant of executive power carries with it cer- 
 tain implied powers. These were still pow- 
 ers of executing the laws, and not, as in the 
 countries named, of supplementing or adding 
 to them. 
 
 Though It Is often said that the framers of the 
 United States constitution, in creating the office of 
 president, had in view, as a model, the English 
 king; Pom. Const. Law § 176, a more recent and 
 probably correct view is that the office was rather 
 modelled upon the colonial governor; 1, Goodnow, 
 Comp. Adm. L. 52, and 1 Bryce, Am. Com. 36. An 
 examination of the powers of the executive in each 
 of the three colonies of New York, Massachusetts, 
 and Virginia leads Professor Goodnow to the con- 
 clusion that the American constitutional executive 
 power was that which has been called the political 
 or governmental power, and which had usually been 
 exercised by the colonial governor, to which was 
 added the carrying on of foreign relations, which,
 
 EXECUTIVE POWER 
 
 1117 
 
 EXE< "JTIVE 1'uWER 
 
 hi the colonial period, were under the control of 
 the mother country, and afterwards of th 
 tinental congress. The fact that the constitution. 
 In vesting in the president the executive power, 
 used the term as one whose meaning would be 
 readily understood, undoubtedly leads to the con- 
 clusion that the general powers so characterized 
 were such as people of the states were accustomed 
 to have exercised by the governors, first of the 
 colonies and then of the states. But see Stevens, 
 Sources Const. U. S. ch. vi. 
 
 The specific powers conferred by the con- 
 stitution in addition to the general provision 
 vesting the executive power in him, are that 
 he shall be commander-in-chief of the army 
 and navy and the militia of the states when 
 in service; that he may require the opinions 
 of the officers of the executive departments ; 
 grant reprieves and pardons, except in cases 
 of impeachment; make treaties with the ad- 
 vice and consent of the senate, two-thirds 
 thereof concurring, and, the senate consent- 
 ing, appoint ambassadors, judges, and other 
 officers whose appointment is not otherwise 
 provided for by law ; give information to 
 congress ; convene both houses, or either, and 
 adjourn them, when they disagree with re- 
 spect to the time of adjournment, to such 
 time as he shall think proper; receive am- 
 bassadors and other public ministers; take 
 care that the laws be faithfully executed ; 
 and commission all officers; Const, art ii. 
 §§ 1, 2, 3. 
 
 This grant is said to have conferred upon 
 the president the political power of an ex- 
 ecutive and one administrative power, viz., 
 the power of appointment, beyond which he 
 had no control over the administration; 1 
 Gooduow, Comp. Adm. L. 63; Pom. Const 
 L. § 633. 
 
 The original powers of the president, un- 
 der the constitution, have been increased by 
 acts of congress conferring specific powers 
 upon him and by decisions that his power is 
 not limited by the express terms of legisla- 
 tive acts but includes certain "rights, duties, 
 and obligations growing out of the constitu- 
 tion itself, our international relatione, and 
 all the protection implied by the nature of 
 the government under the constitution"; In 
 re Neagle, 135 D. S. 1. 64, 10 Sup. Ct 658, 
 34 L. Ed. 55. Under this Implied power it 
 was held that the president could take meas- 
 ures to protect a United states judge or a 
 mail-carrier in the discharge of his duty 
 without an act of congress authorizing him 
 to do so; In re Neagle, 135 U. S. 67, 10 Sup. 
 Ct. 658, 34 L. Ed. 55; or, in the same man- 
 ner, to -place guards upon the public lauds 
 to protect the property of the government 
 As an illustration of the exercise of this pow- 
 er the supreme court cites the executive ac- 
 tion which resulted in the release of Kos/.ta 
 from a foreign prison where he was confined 
 in derogation of his rights as a person who 
 had declared his intention to become an 
 American citizen ; In re Neagle, 135 U. S. 64, 
 10 Sup. Ct 65S, 34 L. Ed. 55. He may re- 
 
 move obstructions to interstate commerce 
 and the transportation of the mails; and en- 
 the full and of all na- 
 
 tional powers and : all rights 
 
 under the com titution ; in re 
 s. 568, 15 Sup. ' 
 
 Another increase of the administrative 
 power of the president was u power 
 
 of removal, which was i . n the 
 
 constitution, but it was h( Id by a majority 
 vote in the first congress to be B part of the 
 executive power; 1 Lloyd's D L, 366, 
 
 450, 480-600; 2 id. 1-12; 5 M i 
 Washington, ch. 3, 196; and this coi 
 tion of the constitution was judicially ap- 
 proved; U. 8. v. Avery, Heady 204, 
 No. 14, -is] ; and was undoubtedly the recog- 
 nized practice of the government until the 
 
 -e of the Tenure of Office Acts of 1867 
 9; U. S. E. S. |§ 1 7« IT to 1769; which were re- 
 pealed in 18S7. See 2 Sto. Const H 1537- 
 43; Paper of W. A. Dunning on the Iur 
 ment and Trial of President Johnson ; 4 Pa- 
 pers Am. Hist. Ass,,,'. 4'J\ ; 1 E< nt 310; Pom. 
 Const L. §§ 647-657. To the power of re- 
 moval thus recognized has been attrl 
 the evolution of "the president's power of di- 
 rection and supervision over the enii 
 tional administration" and "the recognition 
 of the possession by the preside nt of U 
 ministrative power*' ; 1 Gooduow, I 
 Adm. L. GO. Whatever theories may be form- 
 ed of the conception of the oifiee in the 
 minds of the framers of the constitution. 
 and however the result may have been 
 brought about, it cannot be doubted that the 
 executive head of the federal government is 
 now in fact the depositary of the complete 
 executive power, as it is understood ti 
 prebend both political and administrative 
 power. He is authorized to appoint certain 
 officers in the executive departments, the dis- 
 • of whose duties is under his direc- 
 tion; Marbury v. Madison, 1 Cra. (.U. S. > 
 : L. Ed. 60; Kendall v. T. S.. VJ Pet 
 (U. S.) 524. 9 L. Ed 1181 : D. S v. Kendall, 
 5 Cra. C. C. 163, Fed. Cas. No. 15,517. This 
 is considered by the writer 1 to be 
 
 B great enlargement of the American concep- 
 tion; and this view seems to be well support- 
 ed by the considerations already - 
 It is true that at the time of the adoption of 
 the constitution the powers conferred upon 
 the president were considered by many to be 
 so great as to endanger the stability of the 
 Union, and it is considered l y one of the 
 ablest authorities on constitutional law that 
 no one of the three great departments "has 
 been more shorn of its just powers, or crip- 
 pled in the exercise of them, than the 
 dency;" Miller, Const. I'. S. 20, 95, But the 
 context shows that this has reference sole- 
 ly to the encroachments on the appointing 
 power by the extra-legal participation of 
 members of congress therein— an evil much 
 mitigated by the extension of the civil serv-
 
 EXECUTIVE POWER 
 
 1118 
 
 EXECUTIVE POWER 
 
 ice system to the greater number of offices 
 which were formerly not subject to its oper- 
 ation. 
 
 The administrative power of the president 
 includes not only the control of the person- 
 nel of the public service but also the vast 
 number of powers brought into action in the 
 course of the administration of the govern- 
 ment growing out of powers vested in the 
 president by his duty under the constitution 
 to see that the laws are faithfully executed. 
 These duties, aside from this specific enumer- 
 ation in the constitution as already stated, 
 are those imposed upon the president by act 
 of congress, and may be either of a special 
 or general character, as the promulgation of 
 regulations for the control of particular 
 branches of the public service, such as con- 
 sular regulations and the civil service rules ; 
 but in most cases such executive regulations 
 proceed from the heads of departments and 
 not from the president directly, although 
 they are in law presumed to proceed from 
 him; Wilcox v. Jackson, 13 Pet. (U. S.) 498, 
 513, 10 L. Ed. 264; U. S. v. Eliason, 16 Pet. 
 (U. S.) 291, 10 L. Ed. 96S; The Confiscation 
 Cases, 20 Wall. (U. S.) 92, 109, 22 L. Ed. 
 320; U. S. v. Farden, 99 U. S. 10, 19, 25 L. 
 Ed. 267 ; Wolsey v. Chapman, 101 U. S. 755, 
 25 L. Ed. 915. Executive acts, as to the 
 manner of doing which there is no provision 
 of law, may be done through the head of the 
 proper department whose acts are the acts 
 of the president in contemplation of law; 
 Jones v. U. S., 137 U. S. 202, 217, 11 Sup. Ct. 
 80, 34 L. Ed. 691. The president may act in 
 special cases by directions to his subordinate 
 officers, either directly or through the head 
 of a department, or by his decision on ap- 
 peal from either of them, though, as a rule, 
 he is not considered to be authorized to en- 
 tertain such appeals except as to the juris- 
 diction of the officer appealed from ; 15 Op. 
 Atty. Gen. 94, 100, reviewing opinions on this 
 question. In other cases the appeal does 
 not go beyond the head of the department; 
 4 id. 515 ; 9 id. 462 ; 10 id. 526. 
 
 Nearly if not all the state constitutions 
 contain provisions similar to that of the 
 United States making it the duty of the 
 chief executive to see that the laws are 
 faithfully executed. This provision has been 
 drawn into construction by the supreme 
 court of Mississippi. The governor believed 
 that a contract made by a state board of 
 which the attorney-general was a member 
 was contrary to the constitution, and, hav- 
 ing ineffectually endeavored to induce the 
 attorney-general to act in the matter, brought 
 suit himself in the name of the state and the 
 court dismissed the bill, the majority opinion 
 being that no warrant could be found in the 
 constitution or laws of the state for the ac- 
 tion of the governor; Henry v. State, 87 
 Miss. 1, 39 South. 856. See note on this 
 case; 1 The Law 806. In that state the right 
 
 of the governor to sue in a foreign state is 
 given by statute; Rev. Code (1S92) § 2167. 
 
 A governor, being under the constitutional 
 injunction to see that the laws are executed, 
 appears to have no right to execute them 
 himself; Shields v. Bennett, 8 W. Va. 74; 
 In re Fire & Excise Com'rs, 19 Colo. 482, 36 
 Pac. 234; Cahill v. Board, 127 Mich. 487, 86 
 IS. W. 950, 55 L. R. A. 493. As to his right 
 to employ counsel for the state, see 55 L. R. 
 A. 493, n. There are state statutes authoriz- 
 ing the governor to employ other counsel in 
 certain cases, where the attorney-general is 
 under a disability ; State v. Dubuclet, 25 La. 
 Ann. 161; Orton v. State, 12 Wis. 509. A 
 governor has also been permitted to bring 
 action on bonds payable to him for the use 
 of the state; Governor v. Allen, 8 Humph. 
 (Tenn.) 176. See note on this subject; 19 
 Harv. L. Rev. 524. 
 
 In most if not all of the states, the gov- 
 ernor has a veto power, and in such case an 
 act of the legislature is not valid unless pre- 
 sented to him for approval, the opportunity 
 for his action being essential to the validity 
 of the law ; Wartman v. City of Philadelphia, 
 33 Pa. 202; Burritt v. Com'rs of State Con- 
 tracts, 120 111. 322, 11 N. E. 180; State v. 
 Newark, 25 N. J. L. 399. In some cases not 
 only a bill but an order or resolution must 
 be presented to the executive, but in most 
 cases adjournment is excepted ; Trammell v. 
 Bradley, 37 Ark. 374. 
 
 Some question has arisen as to whether 
 the veto power of the governor extends to 
 proposals for the amendment of the constitu- 
 tion. In Delaware, the governor's power 
 over such proposals is recognized in the 
 constitution, and in some other states they 
 are exempted, but as a general rule there is 
 no mention of the governor in connection 
 with such proposals. It has been held that 
 the veto power of the executive does not ap- 
 ply to them in Com. v. Griest, 196 Pa. 396, 
 46 Atl. 505, 50 L. R. A. 568 ; Nesbit v. People, 
 19 Colo. 441, 36 Pac. 221; Warfield v. Van- 
 diver, 101 Md. 78, 60 Atl. 538, 4 Ann. Cas. 
 692; but it has also been held that, while 
 proposing constitutional amendments is not 
 legislation in the ordinary sense, it is such 
 so far as that it must be included in the gov- 
 ernor's proposals for legislation in a special 
 session in order to be valid; People v. Cur- 
 ry, 130 Cal. 82, 62 Pac. 516. 
 
 The practice of the federal government is 
 that proposals by congress of amendments to 
 the constitution are not submitted to the 
 president for his approval. Of the seventeen 
 amendments thus far adopted, none have 
 been approved by the president except the 
 XIHth. The resolution proposing that par- 
 ticular amendment is published with the 
 note at the foot, "Approved February 1st, 
 1805"; 13 Stat. 567; but this does not ap- 
 pear in the resolution as published by the 
 secretary of state in his announcement of 
 its ratification. Prior to the XIHth, no res-
 
 EXECUTIVE POWER 
 
 1119 
 
 EXECUTIVE POWER 
 
 olution proposing amendments, as published, 
 has any note at the foot. Subsequent to the 
 Xlllth tbey appear with "Received at De- 
 partment of State" or "Deposited in Depart- 
 ment of State," noted at the foot of the reso- 
 lution as published- in tbe Statutes at Large. 
 The only exception to the general practice 
 of having no approval by the president is 
 the Xlllth which seems to have been inad- 
 vertence. 
 
 In Hollingsworth v. Virginia, 3 Dall. (U. 
 S.) 380, 1 L. Ed. G44, it was argued by W. 
 Tilghman and Rawle, upon the question 
 whether the XI th amendment did, or did' 
 not, supersede all pending suits against 
 states, that the amendment was not propos- 
 ed in due form because never submitted for 
 approval of the president. When Lee, Atty. 
 Gen., answered that the same course had 
 been pursued relative to all the other amend- 
 ments, Chase, J., interrupted: "There can, 
 surely, be no necessity to answer that argu- 
 ment. The negative of the president applies 
 only to the ordinary cases of legislation. lie 
 has nothing to do with the proposition, or 
 adoption, of amendments to the constitution." 
 
 The date is no necessary part of executive 
 approval of a bill either by the president; 
 Gardner v. The Collector, 6 Wall. (U. S.) 
 499, 18 L. Ed. 890 (where it is said that nei- 
 ther the constitution nor any act of con- 
 gress requires him to affix a date to his sig- 
 nature) ; nor in the case of a governor; State 
 v. Hitchcock, 1 Kan. 178, SI Am. Dec. 503; 
 and the signature in any place on the bill is 
 sufficient; National Land & Loan Co. v. 
 Mead, 60 Vt. 257, 14 Atl. G89. 
 
 Where the constitution provides that meas- 
 ures submitted for executive approval "shall 
 be presented" to him, it is held that it is 
 unnecessary that they should be presented 
 to him in person ; but it is sufficient that 
 they be left at the executive chamber, or 
 other place determined by usage where com- 
 munications are made to the governor ; Opin- 
 ion of Justices, 45 N. II. 007: otherwise, as 
 was said arguendo, the executive, by simply 
 absenting himself, could defeat any law ; 
 Hamilton v. State, 61 Md. 14; on the other 
 hand, it is said that it is not sufficient that 
 the bill is sent to the secretary of state; 
 Opinion of Justices, 99 Mass. 63(1 ; or the gov- 
 ernor's private secretary, who returned it as 
 not properly signed ; Monroe v. Green, 71 Ark. 
 527, 76 S. W. 199; and see Lyth v. City of 
 Buffalo, 48 Hun (N. Y.) 175, and Harpending 
 v. Haight, 39 Cal. 189, 2 Am. Rep. 432, where 
 it was held that merely exhibiting a meas- 
 ure to the governor was not a proper pres- 
 entation; which must be such as to notify 
 the executive that it is intended to secure 
 his final action; State v. Newark, 2.1 N. J. 
 L. 399. The presentation must be of the 
 same bill which was passed.; State v. Wend 
 ler, 94 Wis. ::09, 68 N. W. 750; l'adavano v. 
 Fagan, 66 N. J. L. 167, 48 Atl. 998; and if 
 
 the title has been changed it is material, 
 particularly where the title is required to ex- 
 press the substance of the bill; Simpson v. 
 ards Co., no i . ; e v . 
 
 Onondaga Sup'rs, L6 Ml in. 254 ; the p 
 tation must be within a reasonable time be- 
 fore the expiration of the time limit l 
 proval; State v. Michel. 52 La. An 
 South. 565, 49 l. r. a. 2 
 364. In the absence of any express provi- 
 sion for the approval of bill 
 journment of the legislature, it 
 held that the power of the ex< a Ive 
 an end and the legislation void : 
 Peirce, 2 Cal. 165 : Hardee v. Gibbs, 50 
 802, overruled in State v. Sup'rs of Coahoma 
 County, 64 Miss. 358, 1 South. 501; but 
 the constitution provided that a bill 
 should become a law if not returned within 
 ten days, and that within five days after ad- 
 journment the governor might Sign any act 
 jiassed within the last five days of the ses- 
 sion, his signature within ten days after the 
 passage of the bill, although it \ 
 more than five days before adjournment, was 
 valid; City of Detroit v. Chapin, 108 Mich. 
 136, 60 N. W. 5.S7. 37 L. R. a. 39] (where 
 the cases are examined at large in the opin- 
 ion and a notei ; but where he is allowed 
 five days and returns it in less time with a 
 notification that he does not sign it. it will 
 become a law, as the five days allowed is a 
 matter of privilege; Hunt v. Sta1 
 241, 79 S. W. 769, 65 L. R. A. 71. PC. Am. 
 St. Rep. 34, 2 Ann. Cas. 33. Of course, this 
 question is settled by a constitutional provi- 
 sion authorizing executive action after the 
 adjournment, and such action has been sus- 
 tained upon the basis of long-established 
 custom; Solomon v. Com'rs of Cartersvillej 
 41 Ga. 157. On the other hand, custom to 
 the contrary was held to be abrogated by a 
 single departure from it by the president; 
 U. S. v. Weil, 29 Ct CI. 523. But when that 
 question arose in a ease before the supreme 
 court, that court held that an act was not 
 invalid by reason of its being signed during 
 a recess of Congress, but it declined to de- 
 cide whether the president could si_'n 
 the final adjournment; La Abra silver Min. 
 Co. v. U. S., 175 U. S. 42.".. 20 Sup. Ct 168, 
 41 L. Ed. 223. 
 
 Where there wore rival i odies each claim- 
 ing to be the legislature, it has been held 
 that the recognition of the governor is not 
 effective to determine between them; Ex 
 parte Screws. 49 Ala. ."7; In re Gunn, 50 
 Kan. 1.".". 32 1'ae. 470, '.'is. 19 L. R, A. 519; 
 but under the United states constitution, 
 the president, by virtue of the guaranty to 
 the states against i upon 
 
 the application of the legislature, and his 
 authority to suppress insurrection, necessari- 
 ly has the power to determine who constitute 
 the legislature, as it was held in Luther v. 
 Borden, 7 How. (U. S.) 1, 12 L. Ed. 581.
 
 EXECUTIVE POWER 
 
 1120 
 
 EXECUTIVE POWER 
 
 In the absence of constitutional authority 
 to the contrary, the governor must approve 
 or veto a bill as a whole ; Porter v. Hughes, 
 4 Ariz. 1, 32 Pac. 165, where without such 
 authority the governor vetoed part of an ap- 
 propriation bill, but his signature affixed to 
 it was held to be an approval of the whole 
 bill; but in State v. Holder, 76 Miss. 158, 
 
 23 South. 643, the contrary was held and 
 the action of the executive was treated as a 
 nullity; where, however, he is authorized to 
 veto separate items, he may also veto a part 
 of an item; Com. v. Barnett, 199 Pa. 161, 
 48 Atl. 976, 55 L. R. A. S82 ; but he may not 
 veto some Items before adjournment and 
 others after it ; Pickle v. McCall, 86 Tex. 212, 
 
 24 S. W. 265. Where the governor inad- 
 vertently approved one bill believing it to 
 be another and recalled his action, it was held 
 valid so long as the bill was before him, but 
 would not have been so if returned to the 
 legislature ; People v. Hatch, 19 111. 2S3 ; Alle- 
 gany County v. Warfield, 100 Md. 516, 60 Atl. 
 599, 108 Am. St. Rep. 446. Where he had 
 deposited the bill in the office of the secre- 
 tary of state with his approval endorsed on 
 it, it had passed beyond his control, and he 
 had no authority afterwards to veto it ; Peo- 
 ple v. McCullough, 210 111. 488, 71 N. E. 602. 
 The return of a bill to either house, or notifi- 
 cation of its approval, is a matter of courte- 
 sy only and not required by law; State v. 
 Whisner, 35 Kan. 271, 10 Pac. 852. 
 
 Whether a measure may be recalled by the 
 legislature after having been sent to the 
 executive is in doubt; Wolfe v. McCaull, 76 
 Va. 876, where its return is said to be "a 
 mere act of courtesy" ; and see People v. 
 Devlin, 33 N. Y. 269, 88 Am. Dec. 377. An 
 opinion of the attorney-general of Wisconsin 
 holds the practice of the surrender of bills 
 by the executive as questionable, and doubts 
 whether, if returned, it may be changed by 
 the legislature; Op. Atty. Gen. Wis. Sen. 
 Jour. (1897) 690. See also Smith v. Jen- 
 nings, 67 S. C. 324, 45 S. E. 821 ; In re Duf- 
 fy, 4 Brewst. (Pa.) 533; Sank v. City of 
 Philadelphia, 8 Phila. (Pa.) 117. The re- 
 turn of a bill after veto must put it clearly 
 in the possession of the legislature and out 
 of the control of the executive; Harpending 
 v. Haight, 39 Cal. 189, 2 Am. Rep. 432; but 
 the return must be before final adjournment ; 
 Opinion of Justices, 45 N. H. 607. 
 
 The approval or veto by the governor is 
 held In some cases to be a legislative act; 
 Trustees of School District No. 1 v. County 
 Com'rs, 1 Nev. 335; Thornburg v. Hermann, 
 1 Nev. 473; Fowler v. Peirce, 2 Cal. 165; 
 State v. Deal, 24 Fla. 293, 4 South. 899, 12 
 Am. St. Rep. 204 ; Opinion on Governor's Com- 
 munication, 23 Fla. 298, 6 South. 925; Har- 
 dee v. Gibbs, 50 Miss. S02 ; State v. Fagan, 
 22 La. Ann. 545 ; Arnold v. McKellar, 9 S. C. 
 335; Weis v. Ashley, 59 Neb. 494, 81 N. W. 
 318, 80 Am. St Rep. 704; contra, People v. 
 
 Bowen, 30 Barb. (N. Y.) 24; U. S. v. Weil, 
 29 Ct. CI. 523. It is said by way of conclu- 
 sion, after an examination of the cases, in 
 an article in 41 Am. L. Rev. 396, cited infra: 
 "Usually the controversy has been entirely 
 unnecessary to a decision of a case. Though 
 the legislative character of the executive's 
 action would seem to be obvious enough, in- 
 sisting on this truth has been very 'unfruit- 
 ful,' since the same results could generally 
 have been obtained without it, and when 
 pushed to the extreme, unreasonable results 
 are likely to follow." 
 
 The power of a governor to summon the 
 legislature in extraordinary sessions, express- 
 ed in various terms in the state constitutions, 
 is held to leave the occasion wholly to the 
 discretion of the executive; Whiteman's Ex'x 
 v. R. Co., 2 Harr. (Del.) 514, 33 Am. Dec. 411 ; 
 In re Governor's Proclamation, 19 Colo. 333, 
 35 Pac. 530; State v. Fair, 35 Wash. 127, 76 
 Pac. 731, 102 Am. St. Rep. 897; and in one 
 case it was held that the governor had pow- 
 er to revoke his proclamation ; People v. 
 Parker, 3 Neb. 409, 19 Am. Rep. 634. Where 
 the constitution authorized the governor to 
 limit the subject-matters of legislation at the 
 special session, they must be presented in 
 writing and a "parol request" or a mere ref- 
 erence to the subject is insufficient; Manor 
 Casino v. State (Tex.) 34 S. W. 769 ; Jones v. 
 Theall, 3 Nev. 233 ; but it has been decided 
 by the United States senate that the election 
 of a senator, which has failed at a regular 
 session, may take place at a special session, 
 though not named by the governor as one of 
 the purposes; Taft, El. Cas. 722. The gov- 
 ernor's proclamation need not be specific as 
 to the details of particular legislation, as to 
 which the general subject is recommended; 
 In re Governor's Proclamation, 19 Colo. 333, 
 35 Pac. 530 ; Chicago, B. & Q. R. Co. v. Wolfe, 
 61 Neb. 502, 86 N. W. 441 ; Parsons v. People, 
 32 Colo. 221, 76 Pac. 666. 
 
 In many states the executive has the pow- 
 er to convene the legislature at a place other 
 than its usual place of meeting, in the case 
 of grave emergency, the existence of which 
 must be determined by him, and in one case, 
 that of Alabama, he has power to remove it 
 after it has convened, but the ordinary pro- 
 vision is held to apply only to the place of 
 assembly and not to a subsequent change; 
 Taylor v. Beckham, 108 Ky. 278, 56 S. W. 
 177, 49 L. R. A. 258, 94 Am. St. Rep. 357. 
 
 The usual provision of state constitutions 
 authorizing the governor to adjourn the leg- 
 islature in case of disagreement between the 
 two houses is held to vest the decision wheth- 
 er such occasion exists in the executive; In 
 re Legislative Adjournment, 18 R. I. 824, 27 
 Atl. 324, 22 L. R. A. 716, where it was held 
 that the governor might disregard a certifi- 
 cate of disagreement and examine the records 
 of the two house's to ascertain whether one 
 existed. In another case the power of the 
 governor was not determined, as it was deem-
 
 EXECUTIVE POWER 
 
 1121 
 
 EXECUTIVE POWER 
 
 ed sufficient by the court that the legislature 
 had in fact adjourned ; People v. Hatch, 33 
 111. 9. See an interesting discussion of "The 
 Executive Control of the Legislature," by 
 James B. Barnett, 41 Am. L. Rev. 215, 384. 
 
 Congress may impose on any executive 
 officer any duty which is not repugnant to 
 any right which is secured and protected by 
 the constitution ; Marbury v. Madison, 1 Cra. 
 (U. S.) 137, 2 L. Ed. 60; Kendall v. U. S., 12 
 Pet. (U. S.) 524, 9 L. Ed. 1181. With respect 
 to certain executive functions which spring 
 from the legislation of congress, after the oc- 
 casion is created by the passage of a law, 
 the authority of the legislature is ended, and 
 the uncontrolled discretion of the executive 
 attaches and is exercised independently of 
 the other departments of the government. In 
 the exercise of such powers the discretion of 
 the subordinate officer, within his sphere, is 
 the discretion of the president. Of this char- 
 acter are the control of the military resourc- 
 es of the government; the pardoning power 
 and the power of appointment, all of which 
 are dormant until legislation has been enact- 
 ed for creating an army and navy, or defining 
 crimes and punishments and the creation of 
 offices. As to another class of executive pow- 
 ers which depend entirely upon the legislation 
 of congress both for their existence and their 
 scope, the president merely executes the law. 
 Within this class necessarily fall the greater 
 number of executive functions, and they differ 
 from the other classes in that, with respect 
 to them, the president may be deprived of all 
 discretion. 
 
 The power to appoint to an office is an ex- 
 ecutive function, but may be exercised by 
 the legislature or the courts as an incident 
 of the principal power ; that is, where nec- 
 essary to the exercise of full legislative or 
 judicial power; State v. Hyde, 121 Ind. 20, 
 22 N. E. 644. 
 
 A law providing that the governor, lieu- 
 tenant governor and attorney-general shall 
 constitute a board to appoint members of a 
 railroad commission is not the appointment 
 of those officers to a new office, but merely 
 imposing new duties upon them and is valid; 
 Southern Pac. Co. v. Bartine, 170 Fed. 725 ; 
 and the same was held to be the effect of a 
 similar designation of certain executive of- 
 ficers to act as a state board of elections to 
 appoint election officers ; Richardson v. 
 Young, 122 Tenn. 471, 125 S. W. 664. 
 
 Where the executive has the power and 
 duty of appointing the fish and game com- 
 missioner, an act appropriating money for 
 the department and providing that no part of 
 the appropriation shall be available, so long 
 as the present commissioner remains in of- 
 fice, is unconstitutional as an encroachment 
 upon the appointing power of the executive ; 
 State v. Gordon, 236 Mo. 142, 139 S. W. 403. 
 A constitutional provision prohibiting the 
 legislative department from exercising ex- 
 Bouv.— 71 
 
 ecutive powers is violated when the legisla- 
 ture attempts to interfere with an action tak- 
 en by the executive under existing laws; In 
 re Opinion of the Justi. , asa 610, 94 
 
 X. E. 852. 
 
 The authority, vested by the constitution 
 in the legislature, to make laws, may be ex- 
 ercised, leaving, in the particular instance, to 
 an executive officer, or some other aj 
 the duty of determining questions of fa< 
 sential to the application thereof which in- 
 volves administrative discretion; state v 
 Chittenden, 127 Wis. 468, 107 X. w. 500. See 
 Legislative Power; and as to power 
 ties, acts of executive officers, boards or com- 
 missions under legislative authority, see Del- 
 egation. 
 
 In some cases the courts may go behind the 
 execution of statutory power by an execu- 
 tive officer as: Where, a statute authorizing 
 the summary killing of diseased animals, 
 with no provision for compensation to the 
 owner, an adjudication of the cattle com- 
 missioners is not conclusive and an order is- 
 sued by them for killing an animal, not in 
 fact infected, is no defense to those executing 
 the order in a subsequent action by the own- 
 er for compensation; Miller v. Ii'orton. 152 
 Mass. 540, 26 N. E. 100, 10 L. R. A. 116, 23 
 Am. St. Rep. 850; so in case of the destruc 
 tion of property when required to secure the 
 public safety, where there is a statute au- 
 thorizing it, the destruction of the property 
 is conclusive, so far as the res is concerned ; 
 Salem v. R. Co., 98 Mass. 431, 06 Am. Dec. 
 650 ; but the right is preserved to the i 
 for a hearing in a subsequent proceeding 
 for compensation; Miller v. Horton, 152 
 Mass. 540, 26 N. E. 100, 10 L. R. A. 116, 23 
 Am. St. Rep. 850. 
 
 In other cases the courts will not go behind 
 the decision of the officer charged with the 
 execution of a statute as, under the Chinese 
 exclusion and immigration laws, the find] 
 of the designated officer, when approved on 
 appeal by the secretary of commerce and la- 
 bor, will not be reviewed by the courts, but is 
 treated by them as final and conclusive; U. 
 S. v. Ju Toy, 10S U. S. 253, 25 Sup. Ct. OIL 
 49 L. Ed. 1040. 
 
 The executive powers which are derived 
 directly from the constitution would still re- 
 main if all the legislative acts of congress 
 were repealed. As to these the presidenl 
 clothed with unrestrained discretion, and his 
 acts in pursuance of them are purely politi- 
 cal, lie cannot be controlled nor can his pow- 
 ers be enlarged or diminished by legislation, 
 though through the medium of proper laws 
 he may be aided in the performance of the 
 duties thus Imposed upon him. For example, 
 an attempt to limit the pardoning power or 
 control its effect has been held unconsti- 
 tutional, where the supreme court having de- 
 dared that the power of the president dis- 
 pensed with the necessity of proof of loyalty
 
 EXECUTIVE POWER 
 
 1122 
 
 EXECUTIVE POWER 
 
 In cases authorizing claims for the value of 
 property seized as captured or abandoned 
 during the war; congress subsequently en- 
 acted that such proof should be required ir- 
 respective of any executive pardon or am- 
 nesty. This the court held unconstitutional, 
 saying:— "Now it is clear that the legislature 
 cannot change the effect of such a pardon 
 any more than the executive can change a 
 law. Yet this is attempted by the provision 
 under consideration. The court is required 
 to receive special pardons as evidence of guilt 
 and to treat them as null and void. It is re- 
 quired to disregard pardons granted by proc- 
 lamation on condition, though the condition 
 has been fulfilled, and to deny them their le- 
 gal effect. This certainly impairs the execu- 
 tive authority and directs the court to be in- 
 strumental to that end." U. S. v. Klein, 13 
 Wall. (U. S.) 128, 148, 20 L. Ed. 519. But 
 when a claim was made against the govern- 
 ment for payment for supplies furnished be- 
 fore the war, it was held that the prohibitory 
 legislation of congress prevented a recovery, 
 because the disability of the claimant to re- 
 ceive a debt from the United States did not 
 arise as a consequence of any offence but out 
 of a state of war, and ended with the close 
 of the war, and not by reason of the pardon, 
 which operated only to relieve him from pun- 
 ishment for his acts and gave him no new 
 rights ; Hart v. U. S., 118 U. S. 62, 6 Sup. Ct 
 961, 30 L. Ed. 96. 
 
 The question has been considered from time 
 to time of the extent of the power of the pres- 
 ident over newly acquired territory. After 
 the acquisition of territory it has been gen- 
 erally considered in countries governed by 
 the English law that the temporary powers 
 of government are vested in the executive un- 
 til it is assumed by the legislative branch of 
 the government ; Cowp. 204 ; Leitensdorfer 
 v. Webb, 20 How. (U. S.) 176, 15 L. Ed. 891 ; 
 Cross v. Harrison, 16 How. (U. S.) 164, 14 L. 
 Ed. 889, where after the Mexican war the 
 exercise by the president of wbat were really 
 legislative powers, in relation to customs, was 
 sustained by the supreme court. And after 
 the acquisition of the canal zone on the Isth- 
 mus of Panama, in the absence of congres- 
 sional action with respect to its government, 
 the president exercised all the power of gov- 
 ernment. See 21 Harv. L. Rev. 547, where 
 this subject is discussed and the conclusion 
 reached that the action of the president was 
 warranted. 
 
 As to his express powers the president is 
 equally independent of the courts and can be 
 held for maladministration of them only by 
 impeachment; Marbury v. Madison, 1 Cra. 
 (U. S.) 165, 2 L. Ed. 60 ; Kendall v. U. S., 12 
 Pet. 524, 9 L. Ed. 1181 ; U. S. v. Kendall, 5 
 Cra. C. C. 163, Fed. Cas. No. 15,517. 
 
 The command of the army and navy is es- 
 sentially an executive power ; 2 Sto. Const. 
 § 149; 2 Kent 2S2 ; though it did not pass 
 without criticism ; 2 Elliot, Deb. 365 ; 3 id. 
 
 103, 108 ; the power to call out the militia is 
 discretionary and his judgment of the ne- 
 cessity is final; Martin v. Mott, 12 Wheat. 
 (U. S.) 29, 6 L. Ed. 537 ; and he may delegate 
 the command of it; Rawle, Const. 193; 2 
 Sto. Const. (5th ed.) § 1492, n. 2. See Dilling- 
 ham v. Snow, 5 Mass. 548. 
 
 The power to require opinions from the 
 heads of departments has been termed a mere 
 redundancy ; Federalist, No. 74 ; but it is 
 said to be not without its use and frequently 
 acted upon ; 2 Sto. Const. § 1493 ; especially 
 in two notable instances, by President Wash- 
 ington, 1793, relative to the condition of af- 
 fairs between France and Great Britain, and 
 by President Grant in 1873 in reference to 
 the subject of expatriation; Miller, Const. 
 U. S. 185. 
 
 The pardoning power of the president ex- 
 tends to any case in which it might have 
 been exercised under the English law ; U. S. 
 v. Wilson, 7 Pet. (U. S.) 150, 8 L. Ed. 640; 
 In re Wells, 18 How. (U. S.) 307, 15 L. Ed. 
 421 ; and includes the power to grant a con- 
 ditional pardon ; In re Garland, 4 Wall. (U. 
 S.) 333,' 18 L. Ed. 366 ; to relieve against for- 
 feiture of property under a confiscation act; 
 Armstrong's Foundry, 6 Wall. (U. S.) 766, 18 
 L. Ed. 8S2 ; or release from fines, penalties, 
 and forfeiture which accrue from the offence ; 
 Osborn v. U. S., 91 U. S. 474, 23 L. Ed. 388 ; 
 or contempt of court; State v. Sauvinet, 24 
 La. Ann. 119, 13 Am. Rep. 115; it includes 
 amnesty ; U. S. v. Klein, 13 Wall. (U. S.) 128, 
 20 D. Ed. 519 ; and a general amnesty proc- 
 lamation includes domiciled aliens; Carlisle 
 v. U. S., 16 Wall. (U. S.) 14S, 21 L. Ed. 426. 
 The power of the president to issue a proc- 
 lamation of general amnesty has been much 
 drawn into question, and it was denied in a 
 report of the judiciary committee of the sen- 
 ate made Feb. 17, 1S69, that he could do it 
 without the authority or assent of congress! 
 It was the subject of legislation, an express 
 power being granted to the president by sec- 
 tion 13 of the act of June 17, 1862, which was 
 repealed by act of Jan. 19, 1867. It was, how- 
 ever, generally considered that the subject 
 was within the power of the executive, and it 
 was exercised by Presidents Washington; 
 Adams, Madison, Lincoln, and Johnson, and 
 independently of congressional action. See an 
 extended discussion of the subject in 8 Am. 
 Law Reg. N. S. 513, 577. The president may 
 act on pardons immediately, or first refer 
 them to the executive departments; 14 Op. 
 Att. Gen. 20. 
 
 The president has no power to interfere 
 with a public prosecution, except to put an 
 end to it and discharge the accused. He may 
 not change the proceedings or place of trial ; 
 U. S. v. Corrie, Fed. Cas. No. 14,869 ; 1 Brun- 
 ner, Col. Cas. 686. 
 
 The executive cannot, except as permitted 
 by the constitution, grant a reprieve or fix a 
 day for the execution of a convicted crim- 
 inal, that being a judicial power; Clifford
 
 EXECUTIVE POWER 
 
 1123 
 
 EXECUTIVE POWER 
 
 v. Holler, G3 N. J. L. 105, 42 Atl. 155, 57 L. R. 
 A. 312. His pardoning power is not affected 
 by a provision in an act giving one-half of the 
 fine imposed to an informer ; Meul v. People, 
 198 111. 258, G4 N. E. 1106; nor by a provi- 
 sion authorizing the commutation of sentence 
 for good conduct and defining the credit to be 
 given; Fite v. Snider, 114 Tenn. 64G, 88 S. 
 W. 941, 1 L. R. A. (N. S.) 520, 4 Ann. Cas. 
 1108 ; or a provision for indeterminate sen- 
 tences; People v. Cook, 147 .Mich. 127, 110 
 N. W. 514; or release on parole; People v. 
 Madden, 120 App. Div. 33S, 105 N. Y. Supp. 
 554; People v. Nowasky, 254 111. 14G, its \. 
 E. 242; so that in none of these cases was 
 the act considered unconstitutional as an in- 
 vasion of the pardoning power of the execu- 
 tive. So an act creating a medical council 
 and state boards of medical examiners where- 
 by the appointing power of the governor was 
 limited by restricting the choice to a certain 
 class of applicants was valid ; In re Registra- 
 tion of Campbell, 197 Pa. 581, 47 Atl. 860; 
 and, since the power of appointment to ohice 
 is not exclusively an executive prerogative, so 
 was an act making officers of the board of 
 agriculture elective by general assembly ; 
 Cunningham v. Sprinkle, 124 N. C. G38, 33 S. 
 E. 138; but the legislature has no power to 
 authorize a state board of auditors to deter- 
 mine the guilt or innocence of a person con- 
 victed of crime, as the result of such action 
 would be to constitute such board a court of 
 appeals without any constitutional warrant 
 therefor; Allen v. Board, 122 Mich. 324, 81 
 X. W. 113, 47 L. R. A. 117, SO Am. St. Rep. 
 573. 
 
 The constitutional pardoning power of a 
 governor does not apply to penalties for the 
 violation of municipal ordinances, and conse- 
 quently a statute authorizing the mayor, 
 with the consent of the aldermen, to remit 
 such penalties, is not invalid as an interfer- 
 ence with the pardoning power of the gov- 
 ernor; Allen v. McGnire, 100 Miss. 781, 57 
 South. 217, 3S L. R. A. (X. S.) 19G. 
 
 The power to make treaties "embraces all 
 sorts of treaties, for peace or war ; for com- 
 merce or territory; lor alliances or succors; 
 for indemnity for injuries or payment of 
 debt; for the recognition and enforcement of 
 principles of public law; and for any other 
 purposes which the policy or Interests of in- 
 dependent sovereigns may dictate in their 
 intercourse with each other." 2 Sto. Const, 
 sec. 150S. This power is plenary; Holmes v. 
 Jennison, 14 Pet. (U. S.) 540, Gt4, 10 L. Ed. 
 579; U. S. v. Forty-Three Gallons of Whis- 
 key, etc., 93 U. S. 18S, 23 L. Ed. 846; it in- 
 cludes removing the disabilities of aliens to 
 inherit; 5 Cal. 381; or enabling them to pur- 
 chase and hold lands in the United S 
 Chirac v. Chirac, 2 Wheat. (U. S.i 259, 1 E. 
 Ed. 234. 
 
 An Important question has frequently aris- 
 en as to the effect of this power where legis- 
 lation was required to give effect to a treaty. 
 
 "In regard to this, any serious difficulty has 
 been averted by the wisdom and forbearance 
 of the house of representatives;" Miller, 
 Const. U. S. 16* ;. 181, and au- 
 
 thorities cited; Pom. <onst L. §§ G7< 
 1 Kent 286; Tb 
 
 In the La Abra Mining Case, it was held 
 no interference with the constitutional func- 
 tions of the president, in connection with 
 matters involved in the relations between this 
 country and Mexico, that provision was made 
 by act of congress lor a suit in the court of 
 Claims to determine whether ther< 
 fraud in obtaining the award, the amount of 
 Which had been paid by Mexico to the I 
 States for the claimants; Ea Abra 
 Min. Co. v. U. S., 175 L'. S. 423, 20 S 
 168, 44 L. Ed. 223. 
 
 The power of appointment includes nomi- 
 nation and appointment, and the power to 
 commission is distinct, but when the commis- 
 sion is signed and scaled, the L< gal right of 
 the officer is vested and delivery of thi 
 mission is not essential ; Marbury v. Madison, 
 1 Cra. (U. S.) 137, 2 L. Ed. 60; D. S. v. Le 
 Baron, 19 Bow. (U. s.) 71. 15 L. Ed. r.75. See 
 Constitution of the United States. The 
 nomination is a recommendation in writing; 
 Marbury v. Madison, 1 Cra. (U. S.) 137, 2 E. 
 Ed. GO: 7 Op. Att Gen. 186 ; and the - 
 can only affirm or reject; 3 Op. Att Gen. 188; 
 iss cannot by law designate the person 
 to till an office; U. S. v. Ferreira, 13 How. (U. 
 S.) -10. 14 L. Ed. 4J. 
 
 It was held by Cadwalader, J., in the Case 
 of the District Attorney. L' Cadw. ('.:-. 138, 7 
 Am. L. Reg. (X. S.) 7so. Fed. Caa No. 3,924, 
 that the president; cannot make a temporary 
 appointment in a recess, if the senate was 
 in session when or since the vacancy occur- 
 red; but Woods. J., held directly contra in a 
 case also involving the righl to a similar of- 
 fice; In re Farrow, 4 Woods 491, 3 Fed. 112. 
 where he cited the opinions of ten attorney- 
 generals which are treated as authoritative 
 and declared "to outweigh" the opinion of 
 Judge Cadwalader. The latter, however, dis- 
 putes the statement of an unbroken practice 
 or an acquiescence of the senate and con- 
 siders the executive opinions to have been 
 based upon erroneous assumptions of both. 
 The two opinions a'ppear to present fully the 
 arguments on each side of the question and 
 no other case has been found except a dc i- 
 sion that an original recess appointment can- 
 not be made to fill an office created at the 
 previous session; Bchencb v. Peay, l Dill. 
 268, I'ed. Cas. Xo. 12,451, where the opinion 
 dwalader, J., is said to dispense with 
 further argument. 
 
 Judge Woods cited the opinions of at least 
 ten attorney-generals, beginning with Wirt 
 and ending with Evarts. Since that time 
 opinions to the same effect have been given 
 by Attorney-General Williams; 14 Opin. ^v-'< 
 (where he said, "So far as this department is 
 concerned, the question is settled") ; Stan-
 
 EXECUTIVE POWER 
 
 1124 
 
 EXECUTIVE POWER 
 
 bery, 12 Opin. 32 (where the power of the 
 president to make recess appointments to fill 
 vacancies was said to be "without any lim- 
 itation as to the time when they first occur- 
 red") ; Devens, 15 Opin. 207; 16 id. 522 
 (where alone among these opinions is a ref- 
 erence to Judge Cadwalader's decision as the 
 opinion of a single judge of admitted ability, 
 but of a subordinate court and "not of great 
 authority or weight against the opinions cit- 
 ed") ; he also, citing Cushing, holds that "may 
 happen" means may happen to exist; quoted 
 by Hoyt ; 26 Opin. 234 ; following Devens, as 
 conclusive, is Brewster, 17 Opin. 530 ; 18 id. 
 29; and Miller, 19 id. 261. 
 
 Nor can a governor appoint a senator to 
 fill a vacancy which occurred during a pre- 
 vious recess, a session of the senate having 
 intervened. This was determined in the Cas- 
 es of Johns, Williams and Phelps (1 Cont*. 
 El. Cas. 874 ; 2 id. 612 and 613), all of which 
 were cited by Judge Cadwalader as pertinent 
 by reason of the use in both sections of the 
 constitution of the words "may happen" 
 which he interprets as meaning occur and 
 not exist; and no vacancy can occur in an 
 office until it has once been filled; Ex parte 
 Dodd, 11 Ark. 152 ; contra, State v. Irwin, 5 
 Nev. Ill, where it was held that when a new 
 office is created and no person appointed to 
 fill it, there is a vacancy, and this was the 
 view taken by Attorney-General Miller, who 
 said that a vacancy means that an office ex- 
 ists of which there is no incumbent ; 19 Opin. 
 261. 
 
 With respect to state offices it has also been 
 held that a governor cannot make a recess 
 appointment unless the vacancy occurred 
 since the adjournment of the general as- 
 sembly ; People v. Forquer, 1 Breese (111.) 
 104 ; but where the sittings of the senate are 
 terminated by a long adjournment, it is not 
 "in session," and an appointment by the gov- 
 ernor during such adjournment is valid ; Peo- 
 ple v. Fancher, 50 N. Y. 288. Atty. Gen. 
 Knox, however, decided that the president 
 cannot make a recess appointment in a holi- 
 day adjournment, and that a recess means 
 the period after the final adjournment of 
 congress; 23 Opin. 599. 
 
 Whether a newly created office, not before 
 filled, is a vacancy, within the constitutional 
 power of the president to make temporary ap- 
 pointments, is a question upon which courts 
 and attorneys-general have differed. The 
 most reasonable conclusion and that best sup- 
 ported by authority seems to be that it is not ; 
 Cooley, Const. Law 104, n. 5; Ordronaux, 
 Const. Leg. 107; and it is said that if the 
 senate is in session when offices are created 
 by law and no appointment is made, no va- 
 cancy exists In such sense that the president 
 can appoint during the recess; id.; 2 Sto. 
 Const. § 1559; Case of District Attorney of 
 United States, 7 Am. L. Reg. (N. S.) 786, Fed. 
 Cas. No. 3,924 ; In re Farrow, 3 Fed. 112. 
 
 Strictly speaking, an appointment to of* 
 
 fice is an executive act ; Taylor v. Coin., 3 J. 
 J. Marsh. (Ky.) 404; 2 Goodu. Comp. Adm. 
 L. 22 ; but in many cases it has been held 
 that it may be exercised by the legislative 
 power, and this in the absence of negative 
 constitutional limitation is held valid; id.; 
 Cooley, Const. Lim. 115, n.; Mayor, etc., of 
 Baltimore v. State, 15 Md. 376, 74 Am. Dec. 
 572 ; People v. Mahaney, 13 Mich. 481 ; Peo- 
 ple v. Hurlbut, 24 Mich. 44, 9 Am. Rep. 103 ; 
 Bridges v. Shallcross, 6 W. Va. 562 ; contra, 
 State v. Denny, 118 Ind. 449, 21 N. E. 274, 4 L. 
 R. A. 65; City of Evansville v. State, 118 
 Ind. 426, 21 N. E. 267, 4 L. R. A. 93 ; State v. 
 Kennon, 7 Ohio St. 546 ; State v. Covington, 
 29 Ohio St. 102. 
 
 See, generally, as to the president's power 
 of appointment and removal, 2 Sto. Const. 
 §§ 1545-1553; Rawle, Const. 166; Sergeant, 
 Const, ch. 29; Miller, Const. U. S. 156; Pom. 
 Const. L. §§ 642-651. 
 
 Among the executive powers of first im- 
 portance vested in the president is the man- 
 agement of foreign, affairs, including the 
 treaty power, to be exercised with the con- 
 sent of the senate, and the power to appoint 
 and receive foreign ministers, both of which 
 are expressed in the constitution. 
 
 A question much discussed prior to the war 
 with Spain is whether the recognition of a 
 foreign revolutionary government is a matter 
 entrusted, under the constitution, to the dis- 
 cretion of the president acting alone, or 
 whether it is vested in congress, or requires 
 the joint action of both of the political de- 
 partments of the government. It has been 
 contended on the one hand that this power 
 "rests exclusively with the executive," and that, "a 
 resolution on the subject by the senate or by the 
 house, by both bodies or by one, whether concur- 
 rent or joint, is inoperative as legislation, and is 
 important only as advice of great weight voluntar- 
 ily tendered to the executive regarding the man- 
 ner in which he shall exercise his constitutional 
 functions." 
 
 Such is the view said to have been express- 
 ed by Secretary Olney in a public statement, 
 which, although not an official document, was 
 generally accepted as a fit expression of the 
 opinion of those who take the extreme view 
 of the prerogative of the executive on this 
 subject. The occasion of this utterance was 
 a unanimous report of the Committee on For- 
 eign Affairs of the Senate, recommending the 
 passage of a joint resolution, "That the inde- 
 pendence of the Republic of Cuba be, and the 
 same is, hereby acknowledged by the United 
 States of America." 
 
 This precise view was maintained by Sec- 
 retary Seward in an instruction to Minister 
 Dayton, infra. 
 
 The opposite opinion is based upon the idea 
 that, because the constitution vests in con- 
 gress the power to declare war (which is lia- 
 ble to be a consequence of the recognition of 
 a new government) not only is the action of 
 that body necessary, but it is the proper de- 
 partment of the government to act in such
 
 EXECUTIVE POWER 
 
 1125 
 
 EXECUTIVE PuYVKR 
 
 case. At least it is contended that Congress 
 has the power to act even if its power is not 
 exclusive. 
 
 The argument in favor of the absolute and 
 exclusive control of the subject by congress is 
 substantially this: The recognition of the in- 
 dependence of a people is from its very na- 
 ture the creation of obligations arising from 
 International law, and therefore must belong 
 to the law-making power; it is also a su- 
 preme act of sovereignty and must be done 
 by that department of the government in 
 which the national sovereignty resides. Un- 
 der the constitution, congress is invested with 
 almost all the prerogatives of sovereignty, the 
 only one granted to the president being the 
 pardoning power, and even that is denied in 
 cases of impeachment. The power in ques- 
 tion is not directly granted to the president ; 
 therefore, is not one of his functions unless 
 necessary to the full and proper exercise of 
 some power directly granted to him or inher- 
 ent in the office. His general inherent func- 
 tion is to execute the laces, to which this pow- 
 er of recognition has no relation, unless it 
 be exercised in pursuance of law. The only 
 expressed power from which it is sought to 
 imply this far-reaching authority is that of 
 receiving ambassadors and ministers, and 
 that, it is urged, is simply a ceremonial duty, 
 imposed upon him as the medium through 
 which the government communicates with 
 foreign governments. As the power of re- 
 ceiving ambassadors and ministers can be 
 exercised pursuant to the direction of con- 
 gress in doubtful cases, the power to deter- 
 mine the existence or independence of a na- 
 tion is not necessarily involved in the con- 
 stitutional grant of power to receive am- 
 bassadors, etc. If this power is vested in the 
 executive, it is unlimited and involves the 
 authority, so far as this government is con- 
 cerned, to alter the map of the world, change 
 the relation of this government to other gov- 
 ernments, and involve the country in war. 
 That such uncontrolled executive power over 
 foreign relations was intended, it is contend- 
 ed, cannot be reconciled with the fact that 
 the president cannot declare war, or make a 
 treaty, or appoint an ambassador or consul 
 without the consent of the senate. 
 
 The argument from this point of view is 
 very forcibly stated in a speech by Senator 
 Bacon, Jan. 13, 1S97, in the United States 
 senate, made expressly to take issue with 
 the position taken by Secretary Olney. ^upra. 
 A third view, as stated in the preliminary 
 statement of the question in the Hale memo'- 
 randum, is that, under the constitution and 
 according to precedent, 
 
 "the recognition of the independence of a new for- 
 eign power is an act of the executive (president 
 alone, or president and senate), and not of the leg- 
 islative branch of the government, although the 
 executive branch may properly first consult the 
 legislative. While the legislative branch of the 
 government cannot directly exercise the power of 
 recognizing a foreign government, because that is a 
 power executive or judicial in nature (and one 
 
 which the Judiciary, by refusing independently to 
 examine the question, cast entirely upon the execu- 
 tive), nevertheless, if a recognition of such inde- 
 pendence is liable to become a casus belli with 
 some other foreign power, it is most advisable as 
 well as proper for the executive first to consult the 
 legislative branch as to its wishes and postpone its 
 own action if not assured ol 
 Cong. Rec. 64th Cong. 2d Ses 
 
 The basis of the argument in favor of leg- 
 islative participation in such action is main- 
 ly the power to declare war and. as particu- 
 larly urged by Mr. Clay, as quoted in the 
 Hale memorandum (id. 681), th< to reg- 
 
 ulate commerce. The argument in favor of 
 exclusive executive power is found in the gen- 
 eral control of foreign relations, as to which 
 the only expressed powers are to "make to 
 ties" and to "receive ambassadors and other 
 ministers." The argument of greater force 
 in favor of executive control is, however, not 
 that the power in question is included in the 
 specific powers named but that it is a part of 
 the general grant of executive power; that 
 all duties in connection with foreign rela- 
 tions, not otherwise specified, are placed up- 
 on the executive, and that the two powers 
 enumerated are merely illustrative and nof 
 exclusive. This third view is thus stated in 
 a memorandum submitted to the United 
 States senate by Senator Hale in connection 
 with resolutions pending for the recognition 
 of Cuba, and printed as Ex. I)oc. No. 56, 2d 
 Sess. 54th Cong. 
 
 "It is in the light of this conception of the ex- 
 ecutive character of foreign negotiations and acts 
 concerning foreign relations that our constitution 
 gave the president power to send and receive min- 
 isters and agents to or from any country he sees 
 fit, and when he sees fit, and not to send or re- 
 ceive any, as he may think best. Also, the power 
 to make treaties ; that is, to negotiate with or 
 without agents, as he may prefer, when he may 
 prefer, or not at all, if he prefer; to draw up such 
 as may suit him; and to ratify the acts of 
 his plenipotentiaries, instructed by him, the only 
 qualification of his power being the advice and con- 
 sent of the states in the senate to the treaty he 
 makes. These grants confirm the executive charac- 
 ter of the proceedings, and indicate an intent to 
 give all the power to the president, which the fed- 
 eral government itself was to possess— the general 
 control of foreign relations. 
 
 At the time of the presentation to the 
 ate of the Hale memorandum, Senator Boar, 
 after remarking that it was not the time for 
 full debate, said: 
 
 "Therefore, I wish to bring out distinctly, if I can. 
 by a question to the senator from Maine, whether, 
 in his researches Into the history of this country 
 for a tnindred years, in which we must have recog- 
 nized foreign governments more than a hundred 
 times, taking all the numbers of the governments 
 of the world and their political changes and revo- 
 lutions which have established new governments— 
 
 ••Mr. IIai.i:. Over a hundred. 
 
 "Mr. Hoar. There must be over a hundred cases, 
 as the senator says. Is there a single Instance 
 in fact our relations with the foreign coun- 
 try have not been determined by the act of recog- 
 
 tiy the president of the United States and, 
 without congress? Has there been a single one? 
 
 "Mr. IIai.k. As the result of some considerable, 
 and what I have tried to make faithful, examina- 
 tion of the subject and of what others have done
 
 EXECUTIVE POWER 
 
 1126 
 
 EXECUTIVE POWER 
 
 for me, I answer the senator from Massachusetts 
 that I do not find one. 
 
 "Mr. Allen. As this question is very important 
 and going out to the country to be criticised, I ask 
 the senator from Maine whether he will not state 
 to the senate whether he finds any instance in the 
 history of this country where the question of in- 
 dependency was determined to belong to the execu- 
 tive department exclusively? 
 
 "Mr. Hale. In every one of the cases that have 
 been referred to by the senator from Massachusetts 
 (Mr. Hoar) the recognition was made by the ex- 
 ecutive department, acted upon, submitted to, and 
 not questioned." Cong. Rec. 54th Cong., 2nd Sess. 
 682. 
 
 The extent of executive control of foreign 
 relations was the subject of an extended de- 
 bate in congress in 1796, upon a resolution 
 calling upon the president for details of the 
 negotiations leading up to the Jay treaty 
 with England, the exact question, however, 
 being the effect of a treaty when negotiated. 
 See Treaty. 
 
 With respect to the express power of the 
 executive to make, treaties, that is shared 
 with the senate and there is no precedent for 
 the primary act of recognition of a new for- 
 eign state, by the joint action of president 
 and senate under the treaty-making power. 
 As to the power to "receive ambassadors and 
 other ministers," though it was much debated 
 as giving the president too much power, the 
 only comments on it in the Federalist are 
 the following: 
 
 "This, though it has been a rich theme of decla- 
 mation, is more a matter of dignity than of au- 
 thority. It is a circumstance which will be without 
 consequence in the administration of the Govern- 
 ment; and it was far more convenient that it 
 should be arranged in this manner, than that there 
 should be necessity for convening the legislature, or 
 one of .its branches, upon every arrival of a foreign 
 minister ; though it were merely to take the place 
 of a departed predecessor." Federalist, No. 69, p. 
 326. 
 
 "Except some cavils about the power of . . . 
 receiving ambassadors, no objection has been made 
 to this class of authorities ; nor could they possibly 
 admit of any. ... As to the reception of am- 
 bassadors, what I have said in a former paper will 
 furnish a sufficient anwer." id. No. 77, p. 362. 
 
 The executive can alone appoint a diplo- 
 matic representative to a new government, 
 but to do this there is required congressional 
 action to provide for the payment of his sal- 
 ary, and it might be an inference from the 
 practice of the government that the creation 
 of an office, either directly or by provision for 
 compensation to its incumbent, is a prerequi- 
 site to the appointment of a person to exercise 
 any public functions. It has been argued, on 
 the other hand, that such an officer, appoint- 
 ed by the president and senate, and his posi- 
 tion as an officer having been established, 
 might serve gratuitously or be paid out of 
 the contingent fund. It would seem, how- 
 ever, that it might be urged with more force 
 that merely from an appointment authorized 
 by the constitution, there would arise an ob- 
 ligation to provide compensation, of the same 
 character as those created in many cases 
 
 without the direct action of congress, notably 
 under the power to make a treaty (q. v.). 
 
 In 1798 a discussion arose as to this power, in 
 which was considered the possible clashing between 
 the appointing power of the president and the ap- 
 propriating financial power of congress. In the 
 course of debate Mr. Otis concluded his remarks 
 with some observations not less pertinent to the 
 present question than to that to which they were 
 addressed: "It was owing to the apparent contra- 
 dictions arising from a theoretical view of consti- 
 tutions like ours that they were pronounced to be 
 impracticable by some of the best writers of an- 
 tiquity. And these abstract questions and extreme 
 cases were not calculated to reconcile the minds ot 
 our citizens to our excellent form of government. 
 It is a plain and conclusive reply, by which all 
 such objections are obviated, that the constitution 
 is not predicated upon a presumed abuse of power 
 by any department, but on the more reasonable 
 confidence that each will perform its duty within 
 its own sphere with sincerity, that division of senti- 
 ment will yield to reason and explanation, and that 
 extreme cases are not likely to happen." 
 
 And Attorney-General Cushing objected to an act 
 in which it was provided that the president "shall" 
 appoint a consul at Port au Prince, that it involved 
 the diplomatic recognition of the Haytien empire, 
 which rested entirely within the discretion of the 
 president. 7 Op. Attys. Gen. 242. 
 
 Turning to the precedents, the right to recognize 
 a foreign power was first discussed in 1818 with 
 reference to the South American republics. The 
 matter first came up on an appropriation to pay a 
 minister, which was defeated, after a debate, in 
 which Mr. Clay maintained that recognition might 
 be either by the president in receiving or sending 
 a minister, or by congress under the commerce 
 clause ; and the relation of the two powers of gov- 
 ernment to the subject was much considered; Ann. 
 of Cong. (1818), pp. 1468-1608-1655. The subject was 
 at this time much discussed both in congress and 
 between the president and individual members, so 
 much so that Mr. Adams, the secretary of state, in 
 his memoirs, mentions jocular remarks made in the 
 cabinet in that connection about the power of im- 
 peachment; 4 Memoirs, J. Q. Adams 204-206. Sub- 
 sequently the subject was revived in the house and 
 various resolutions were considered, with the result 
 of a request for information from the president, 
 which was responded to by the message of March 8, 
 1S22, in which he said it was his duty to invite the 
 attention of congress to a very important subject, 
 and to communicate the sentiments of the executive 
 on it ; that, should congress entertain other senti- 
 ments, then there might be such co-operation be- 
 tween the two departments of the government as 
 their respective rights and duties might require. 
 And after stating that in his judgment the time had 
 come to recognize the republics, he said: "Should 
 congress concur in the view herein presented, they 
 will doubtless see the propriety of making the nec- 
 essary appropriations for carrying it into effect.' 
 The house then resolved that it "concur in the 
 opinion expressed by the president in his message 
 of the 8th of March, 1822, that the late American 
 provinces of Spain which have declared their in- 
 dependence and are in the enjoyment of it, ought 
 to be recognized by the United States as inde- 
 pendent nations," and directed an appropriation "to 
 enable the President of the United States to give 
 due effect to such recognition." The Hale memo- 
 randum concludes a review of this matter with a 
 protest against the conclusion which has been drawn 
 that President Monroe, after all the discussion, had 
 admitted the power of recognition in congress, but 
 concedes that he did acknowledge "the importance 
 of consulting the legislative branch when a step 
 was about to be taken whose expediency might be 
 doubted, and which would necessarily result in a 
 request for appropriations." 
 
 In June, 1836, in reporting a resolution declaring 
 that the independence of Texas ought to be recog- 
 nized, the committee on foreign affairs of the senate
 
 EXECUTIVE POWER 
 
 1127 
 
 EXECUTIVE ruAVl.K 
 
 made a report in which It was said: "The recog- 
 nition of Texas as an independent power may be 
 made by the United States in various ways: First, 
 by treaty; second, by the passage of a law regulat- 
 ing commercial intercourse between the two pow- 
 ers; third, by sending a diplomatic agent to Texas 
 with the usual credentials ; or, lastly, by the execu- 
 tive receiving and accrediting a diplomatic repre- 
 sentative from Texas, which would be a recogni- 
 tion as far as the executive only is competent to 
 make it. . . . The President of the United States, 
 by the constitution, has the charge of their foreign 
 Intercourse, Regularly he ought to take the initia- 
 tive in the acknowledgment of the independence of 
 any new power, but in this case he has not yet 
 done it, for reasons which he, without doubt, deems 
 sufficient. If in any instance the president should 
 rdy, he may be quickened Id the exercise of 
 his power by the expression of the opinion, or by 
 other acts, of one or both branches of congress, as 
 was done in relation to the republics formed out 
 of Spanish America." Quoted in Senate Report, 
 No. 1160, 54th Cong. L'd Sess. 
 
 President Jackson, in his message of Dec. 21, 1S36, 
 after referring to the resolution, said that there had 
 never been any deliberate inquiry as to where be- 
 longed the power of recognizing a new state,— a 
 power In some instances equivalent to a declara- 
 tion of war, and nowhere expressly given, but only 
 as it is implied from some of the great powers giv- 
 en to congress or in that given to the president to 
 make treaties and receive and appoint ministers. 
 Then he continues: "In the preamble to the resolu- 
 tion of the house of representatives it is distinctly 
 intimated that the expediency of recognizing the in- 
 dependence of Texas should be left to the decision 
 of congress. In this view, on the ground of expe- 
 diency, I am disposed to concur, and do not, there- 
 fore, consider it necessary to express any opinion as 
 to the strict constitutional right of the executive, 
 either apart from or in conjunction with the senate, 
 over the subject. It is to be presumed that on no 
 future occasion will a dispute arise, as none has 
 heretofore occurred, between the executive and the 
 legislature in the exercise of the power of recogni- 
 tion. It will always be considered consistent with 
 the spirit of the constitution and most safe that it 
 should be exercised, when probably leading to war, 
 with a previous understanding with that body by 
 whom war can alone be declared, and by whom all 
 the provisions for sustaining its perils must be 
 furnished. Its submission to congress, which rep- 
 resents in one of its branches the states of this 
 Union, and in the other the people of the United 
 States, where there may be reasonable ground to 
 apprehend so grave a consequence, would certainly 
 afford the fullest satisfaction to our own country 
 and a perfect guaranty to all other nations of the 
 justice and prudence of the measures which might 
 be adopted." 
 
 As to this message the Hale memorandum, which, 
 It is to be remembered, is an argument for the 
 absolute and unqualified power of the executive 
 (but modified only by what might be termed a moral 
 duty to consult congress in extreme cases) remarks: 
 
 "President Jackson plainly was of the opinion 
 that, in a doubtful case, when international com- 
 plications might be Involved, the president should 
 not recognize a revolutionary .government without 
 the assent of congress. His language Is so care- 
 fully guarded that no inference can be made with 
 entire confidence as to the proper course if the ex- 
 ecutive were strongly of the opinion that facts 
 justifying the recognition of independence did not 
 exist." 
 
 With respect to other expressions on this sub- 
 ject from the executive department of the 
 ment, Secretary Seward wrote to Minister Dayton, 
 April 7, 1864: "The question of recognition of for- 
 eign revolutionary or reactionary goverun 
 one exclusively for the executive, and cannot be de- 
 termined Internationally by congressional action." 
 This had reference to the action of the house of rep- 
 resentatives, which had unanimously adopted a res- 
 olution protesting against the establishment of an 
 empire in Mexico under Maximilian. The senate 
 did not act on It. The French government asked 
 
 an explanation, and the secretary of state, using the 
 expression quoted, said that a vote of the house or 
 the senate could neither coi xecutive to 
 
 modify its policy nor deprive it of its freedom of 
 action, in . .jority 
 
 affirmed their right to advise on questions of for- 
 eign policy ; but, irked by au intelligent 
 foreign writer, this declaration do..-.-, not api 
 have had any intlii' .idmln- 
 istration. Chambruu, 1. B. lul. 
 On the other hand, Secretary Clayton, writing to 
 Mr. Mann, a special agent to •.- the Hun- 
 garian insurrection, says: "Should the new gov- 
 ernment prove to be, In your opinion, firm and 
 stable, the president will cheerful ■ :id to 
 congress, at their next session, the recognition of 
 Hungary ; and you might intimate, If you 
 see fit, that the president would in ti. 
 gratified to receive a diplomatic agent from Hun- 
 gary in the United States by or before the next 
 meeting of congress, and that he entertains no 
 doubt whatever that In case her new government 
 should prove to be firm and stable, her lnd< 
 euce would be speedily recognized by that enlight- 
 ened body." In his Digest of International Law, 
 from which the foregoing is quoted, Dr. Wharton 
 concludes his statement of precedents on this sub- 
 ject as follows: "As to this It Is to be remarked 
 that while Mr. Webster, who shortly afterwards, on 
 the death of President Taylor, became secretary 
 of state, sustained the sending of Mr. Mann as an 
 agent of inquiry, he was silent as to this paragraph, 
 and suggests, at the utmost, only a probable con- 
 gressional recognition in case the new government 
 should prove to be firm and stable. In making con- 
 gress the arbiter, President Taylor follow • 
 precedent of President Jackson, who, on March 3, 
 1S37, signed a resolution of congress for the recog- 
 nition of the independence of Texas. The recog- 
 nition, however, by the United States, of the Inde- 
 pendence of Belgium, of the powers who threw off 
 Napoleon's yoke, and of the South American states 
 who have from time to time declared themselves 
 independent of prior governments, has been pri- 
 marily by the executive, and such also has been 
 the case in respect to the recognition of the suc- 
 cessive revolutionary governments of France. 
 
 The conclusion of the extended discussion 
 of Cuban affairs, which covered the sub- 
 ject of the recognition of a new -rovernnient 
 in a foreign state and Intervention in its 
 affairs, was reached in 1898 when President 
 McKinley sent a special message dated April 
 11, recommending intervention and stating 
 the grounds on which he did so. And on 
 April 20 congress passed a joint resolution 
 declaring that the people of Cuba were free 
 and Independent, and demanding that the 
 government of Spain relinquish Its authority 
 and government In the island, and authorizing 
 the president to use the entire land and 
 naval forces of the United States to carry 
 the resolutions into effect There was ■.. 
 disclaimer of any purpose to exercise sover- 
 eignty or control over the island except for 
 Its pacification. The result was that dip- 
 lomatic relations between this country and 
 Spain were Immediately broken Off and war 
 followed. 6 Moore Int. L. Dig. See. !>09. 
 
 action of our government in tins case 
 does not hear upon the direct question as to 
 which department of the government Is di- 
 rectly charged with the recognition of new 
 states, except that it shows that President 
 McKinley acted in accordance with the 
 views, already cited, of his predecessors, 
 Presidents Monroe and Jackson, in consult-
 
 EXECUTIVE POWER 
 
 1128 
 
 EXECUTIVE POWER 
 
 ing congress and securing its joint action 
 in a case which was likely to result in war. 
 Since the settlement of the affairs of Cuba, 
 it is believed that the question of executive 
 power with relation to new or insurrection- 
 ary governments has not been raised or dis- 
 cussed. 
 
 In 1S99, a revolutionary government hav- 
 ing been established in Venezuela, the Unit- 
 ed States minister was authorized by the 
 department of state to recognize it, and, 
 when he had done so, his action was ap- 
 proved; 1 Moore, Int. L. Dig. sec. 52. In the 
 same year similar action was taken with 
 respect to a successful insurrection in Bor 
 livia ; id. sec. 53. 
 
 Early in 1911, a revolution occurred in 
 Portugal which resulted in the abdication 
 of the king and the proclamation of a re- 
 public. On the 6th of June, 1911, the Amer- 
 ican minister in Lisbon was instructed, as 
 soon as the constituent assembly, which was 
 to meet on the 19th of June, should have ex- 
 pressed the voice of the people and settled 
 upon the form of government to be adopted 
 by Portugal, to inform the minister of for- 
 eign affairs of its official recognition by the 
 government of the United States. The min- 
 ister was to do this, if possible, on the day 
 on which the constituent assembly took def- 
 inite and final action. 
 
 On the following day, the American minis- 
 ter was explicitly instructed that the gov- 
 ernment of the United States desired to rec- 
 ognize the republic of Portugal as soon as it 
 should be officially proclaimed by the con- 
 stituent assembly, without awaiting the 
 choice of a president or the adoption of a 
 • constitution. On June 19, the constituent 
 assembly met and definitely proclaimed the 
 republic. On the same day the diplomatic 
 representative of the United States handed 
 to the minister of foreign affairs a note 
 stating that the government of the Portu- 
 guese republic was on that day officially 
 recognized by the government of the United 
 States. 
 
 It may be remarked that the republic of 
 Portugal had previously been recognized by 
 Switzerland. 
 
 Late in the same year there occurred a 
 revolution in China which resulted in the 
 establishment by the insurgent military lead- 
 ers in the various Yangtze provinces and in 
 southern China, of a cabinet form of govern- 
 ment with headquarters at Nanking, and an 
 assembly convoked in that city, which on 
 December 29, 1911, elected a provisional pres- 
 ident of the republic of China, who was in- 
 augurated as such on New Year's day. On 
 February 12, 1912, the throne abdicated in 
 favor of a republic and conferred full power 
 to organize such a government on Yuan Shih- 
 kai, who three days later was elected by the 
 Nanking assembly provisional president. 
 The resignation of the provisional president 
 and his cabinet was accepted to take effect 
 
 on the inauguration of Yuan, which occurred 
 at Peking March 10, 1912. The provisional 
 government meanwhile had notified the 
 American minister that the Chinese minister 
 in the United States would continue in the 
 discharge of his functions as "provisional 
 diplomatic agent." On March 10, the date 
 of the inauguration, a provisional constitu- 
 tion, previously approved by the Peking au- 
 thorities, was adopted by the Nanking as- 
 sembly, under which it was provided that 
 within ten months the provisional president 
 should convene a representative national as- 
 sembly to adopt a permanent constitution 
 and elect a president. 
 
 President Taft in his annual message of 
 December, 1912, announced to congress the 
 course of events in China and stated that 
 the United States was, according to prece- 
 dent, maintaining full and friendly de facto 
 relations with the provisional government. 
 
 On April 6, 1913, the American diplomatic 
 representative at Peking was instructed that 
 upon the convening of the national assembly 
 with a quorum, organized for business by 
 the election of officers, he should communi- 
 cate to the president of China as coming 
 from the president of the United States a 
 message recognizing the new government 
 and welcoming the new China into the family 
 of nations. This message of the president of 
 the United States was delivered on May 2, 
 and on the same day the new president, 
 Yuan Shih-kai, sent an appreciative message 
 to the president of the United States ac- 
 knowledging his greeting and thanking him 
 for his sentiments of amity and good will. 
 
 Meanwhile none of the European govern- 
 ments had recognized the Chinese republic. 
 
 The courts have frequently had occasion 
 to determine whether the independence of 
 a foreign country should be recognized as 
 existing for the purpose of the pending case, 
 but not to pass upon the question of power 
 as between the executive and legislative de- 
 partments. In an early case Marshall, C. J., 
 said that before a nation 
 
 "could be considered independent by tbe judiciary 
 of foreign nations, it was necessary that its inde- 
 pendence should be recognized by the executive au- 
 thority of those nations. That as our executive had 
 never recognized the independence of Buenos Ayres, 
 it was not competent to the court to pronounce its 
 independence." U. S. v. Hutchings, 2 Wh. Cr. Cas. 
 (N. Y.) 513, Fed. Cas. No. 15,429. 
 
 A little later, on certificate of division, the 
 supreme court had before it the direct ques- 
 tion of the rights of a revolting colony, or 
 portion of a nation which has declared its 
 independence. The case was the trial for 
 piracy of one of the revolutionary subjects. 
 
 Marshall, C. J., speaking for the court, 
 said: 
 
 "Those questions which respect the rights of a 
 part of a foreign empire, which asserts and is con- 
 tending for its independence, and the conduct which 
 must be observed by the courts of the Union to- 
 wards the subjects of such section of an empire 
 who may be brought before the tribunals of thia 
 country, are equally delicate and difficult. ■ • •
 
 EXECUTIVE POWER 
 
 1129 
 
 EXECUTIVE POWER 
 
 Such questions are generally rather political than 
 legal in their character. They belong more prop- 
 erly to those who can declare what the law shall 
 be ; who can place the nation in such a position with 
 respect to foreign powers as to their own judgment 
 shall appear wise ; to whom are entrusted all its 
 foreign relations, than to that tribunal whose power 
 as well as duty is confined to the application of 
 the rule which the legislature may prescribe for 
 it." The certificate of opinion was "... The 
 court is further of opinion that when a civil war 
 rages in a foreign nation, a part of which sep- 
 arates itself from the old established government, 
 and erects itself into a distinct government, the 
 courts of the Union must view such newly con- 
 stituted government as it Is viewed by the legis- 
 lative and executive departments of the govern- 
 ment of the United States." U. S. v. Palmer, 3 
 Wheat. (U. S.) CIO, 4 L. Ed. 471. 
 
 In a case Involving the question of the 
 right of citizens of the United States to 
 the use of the seal fisheries at the Falkland 
 Islands claimed by Buenos Ayres, Williams 
 v. Ins. Co., 3 Sumn. 270, 273, Fed. Cas. No. 
 17,738, Mr. Justice Story said. 
 
 "It is very clear that it belongs exclusively to the 
 executive department of our government to rec- 
 ognize from time to time any new governments 
 which may arise in the political revolutions of the 
 world ; and until such new governments are so rec- 
 ognized they cannot be admitted by our courts of 
 justice to have or to exercise the common rights 
 and prerogatives of sovereignty." 
 
 He adds that "this doctrine was fully rec- 
 ognized by the supreme court" in Gelston 
 v. Hoyt ; which was one of those cases cited 
 infra in which the court had referred to 
 the recognition of independence, by the "gov- 
 ernment." On appeal from Judge Story's 
 decision the supreme court held that the 
 action, of the executive department of the 
 government, on the question to whom the 
 sovereignty of the islands belonged was bind- 
 ing and conclusive on the courts, and it was 
 enough that in the exercise of his constitu- 
 tional functions the president had decided 
 that question; Williams v. Ins. Co., 13 Pet. 
 (U. -S.) 417, 420, 10 L. Ed. 22(5. In several 
 cases the court has said that the question of 
 the recognition of belligerency or independ- 
 ence is one for the government of the United 
 States; The Divina Pastora, 4 Wheat. (U. 
 S.) 52, 4 L. Ed. 512; The Nueva Anna, 6 
 Wheat. (U. S.) 193, 5 L. Ed. 239; Gelston v. 
 Iloyt, 3 Wneat. (IT. S.) 324, 4 L. Ed. 381; 
 Rose v. Iliniely. 4 Cra. (U. S.) 2 11. 272, 2 
 L. Ed. 608 ; and again congress and the 
 president are referred to as "those depart- 
 ments" having the control of such matters; 
 ■U. S. v. Lynde, 11 Wall. (U. S.) 632, 638, 
 20 L. Ed. 230. On a bill to enforce an agree- 
 ment the validity of which turned on the 
 question whether at its date Texas was, or 
 was not, independent, Taney. C. J., Bald that 
 "was a question for that part of our govern- 
 ment which is charged . with our foreign 
 relations," and it. was held that the curl 
 could not inquire whether it had not in 
 fact become an independent sovereign state 
 before its recognition as such by the treaty- 
 making power; Kennett v. Chambers, 14 
 How. (U. S.) 38, 51, 14 L. Ed. 316. 
 
 In the Prize Cases, 2 Black (U. 
 L. Ed. 459, much later than any 
 above cited (relating not to foreign but to 
 domestic relations, and therefore not strict- 
 ly applicable), this language is a 
 
 "As in the case of an Insurrection, the President 
 must, in the absence of cou~ i tion, deter- 
 
 mine what degree of force the crisis demands, and 
 as in political matters the courts must be g" 
 by the decisions and acts of the- political depart- 
 ment to which this power is entrusted, the proc- 
 lamation of blockade by the president is of Itself 
 conclusive evidence that a state of war existed 
 which demanded and authorized recourse to such a 
 measure." 
 
 In this case, the court terms the executive 
 the political department of the government, 
 and in a later case it so designates i on§ 
 U. S. v. Yorba. 1 Wall. (U. S.j 412. 17 L. Ed. 
 035. More recently in a case in which the 
 president was authorized, by act of conf 
 to declare that a guano island belonged to 
 the United States, the court said : 
 
 "Who is the sovereign, de jure or de facto, of a 
 territory Is not a judicial, but a political, question, 
 the determination of which by the legislative and 
 executive departments of any government conclu- 
 sively binds the judges as well as all other officers, 
 citizens, and subjects of that government ;" Jones 
 v. U. S., 137 U. S. 202, 11 Sup. Ct. 80, 34 L. Ed. 691. 
 
 With reference to the status of the rev- 
 olutionary party of Chile, the circuit court 
 of appeals said that it was to be regarded by 
 the courts as determined by the executive 
 department of the United States; The Itaia. 
 56 Fed. 505, 5 C. C. A. GOS ; affirming l. S. 
 v. Trumbull, 48 Fed. 99. 
 
 The earliest reference to this subject by 
 a text-writer is by Rawle, who says: 
 
 "The power of receiving foreign ambassadors car- 
 ries with it, among other things, the right of judg- 
 ing in the case of a revolution in a foreign country, 
 whether the new ruler ought to be recognized. Tht: 
 legislature, indeed, possesses a superior power, and 
 may declare its dissent from the executive recogni- 
 tion or refusal, but until their sense Is declared, the 
 act of the executive is binding. The judicial power 
 can take no notice of a new government, until one 
 or the other of those two departments has acted on 
 it. Circumstances may render the decision of great 
 importance to the interests and peace of the coun- 
 try. A precipitate acknowledgment of the independ- 
 ence of part of a foreign nation, separating itself 
 from its former head, may provoke the resentment 
 of the latter ; a refusal to do so may disgust the 
 former, and prevent the attainment of amity and 
 commerce with them if they succeed. The principle 
 on which the separation takes place must also be 
 taken into consideration, and if they are conform- 
 able to those which led to our own independence, 
 and appear likely to be preserved, a strong impulse 
 will arise in favor of recognition. . . . The power 
 of congress on this subject cannot be controlled ; 
 they may, if they think proper, acknowledge a small 
 and helpless community, though with a certainty of 
 drawing war upon our country ; but greater cir- 
 cumspection Is required from the president, who, not 
 having the constitutional power to declare war, 
 ought ever to abstain from a measure likely to 
 produce It." Rawle, Const. 195. 
 
 A little later Story wrote: 
 
 "The exercise of this prerogative of acknowledg- 
 ing new nations or ministers is, therefore, under 
 such circumstances, an executive function of great 
 delicacy, which requires the utmost caution and de- 
 liberation. ... If such recognition is made, it is 
 conclusive upon the nation, unless indeed, it can be 
 reversed by an act of congress repudiating It If,
 
 EXECUTIVE POWER 
 
 1130 
 
 EXECUTIVE POWER 
 
 on the other hand, such recognition has been re- 
 fused by the executive, it is said that congress may, 
 notwithstanding, solemnly acknowledge the sover- 
 eignty of the nation or party (citing Rawle). These, 
 however, are propositions which have hitherto re- 
 mained as abstract statements under the constitu- 
 tion, and therefore can be propounded, not as abso- 
 lutely true, but as still open to discussion if they 
 should ever arise in the course of our foreign di- 
 plomacy. The constitution has expressly invested 
 the executive with power to receive ambassadors 
 and other ministers. It has not expressly invested 
 congress with the power either to repudiate or ac- 
 knowledge them." 2 Sto. Const. § 1566. 
 
 In connection with this treatment of the 
 subject is to be considered the judicial ut- 
 terance of Judge Story, before cited from 
 Williams v. Ins. Co., 3 Sumn. 270, Fed. Cas. 
 No. 17,738. Pomeroy is also cited in Senator 
 Hale's memorandum as an authority in favor 
 of the exclusive executive control, which he 
 does assert strongly with reference to for- 
 eign relations, and the treaty-making pow- 
 er in general, but he does not discuss the 
 particular question under consideration ; 
 while he enforces with great earnestness the 
 necessity of harmonious action of congress 
 and the executive, and of their co-operation 
 in giving due effect to the powers confided 
 to each ; Pom. Const. Law § G75. 
 
 Dr. Wharton, in his Digest of Internation- 
 al Law, in discussing the subject of the rec- 
 ognition of various revolutionary govern- 
 ments, entitles section vii. of chap, iii., vol. 
 1, thus: "Such recognition determinable by 
 executive," thus implying the opinion that 
 the right rests with the executive alone. The 
 author states the proposition embodied in 
 his caption more fully thus : 
 
 "In political matters the courts follow the de- 
 partment of the government to which those mat- 
 ters may be committed, and will not recognize the 
 existence of a new government until it has been 
 recognized by the executive." Most of the cases, 
 however, which are cited by him under this caption 
 are among the authorities upon the proposition 
 already noted, that it is not a matter for the judi- 
 cial department of the government, but that the 
 courts will not take cognizance of the existence of 
 a new government until it has been recognized by 
 the political department of the government, with- 
 out discriminating between the executive and legis- 
 lative branches of the government. 
 
 From an examination of all the decisions 
 touching this question by the judicial de- 
 partment, no precise principle can be deduc- 
 ed unless it be that the references to it rest 
 upon an assumption of entire harmony of 
 action between the executive and legislative 
 departments. And the fact that the direct 
 issue arising from the claim of exclusive con- 
 trol by one of those two departments has not 
 heretofore been made, will readily account 
 for the absence of direct judicial authority 
 or authoritative expression of opinion by 
 text-writers. The duties and powers of what 
 the supreme court frequently terms the polit- 
 ical departments are so closely interwoven 
 that it is unlikely that such an issue will be 
 sharply drawn. Every approach to it hither- 
 to has resulted, after discussion, in the rec- 
 ognition by congress of the right of the ex- 
 
 ecutive to full control of foreign relations 
 and to the initiative in the practical recogni- 
 tion of a new foreign power, and, on the 
 other hand, by a prudent disposition on the 
 part of the executive not to act in a doubt- 
 ful case or one likely to create a casus belli 
 without ascertaining the disposition of con- 
 gress. This has been simply the application 
 to this particular subject of the principle of 
 mutual recognition of the distribution of 
 powers, and at the same time, the interde- 
 pendence of the executive and congress 
 which, with the prudent reserve of the judi- 
 ciary in keeping closely within the limits of 
 its own sphere, has enabled the government 
 to avoid the dangers of mere theoretical con- 
 struction alluded to by Otis in the quotation 
 made from his remarks upon the subject. 
 The undoubted constitutional powers of both 
 departments bearing upon the question make 
 harmony of action as necessary in dealing 
 with this subject as w T ith most, if not all, of 
 the ordinary details of the government. 
 While the president may undoubtedly recog- 
 nize a foreign government, as has frequently 
 been done, such action, if it involved war, 
 would still require the action of congress to 
 make it effective, and doubtless the prece- 
 dents established by Presidents Jackson and 
 Monroe, neither of whom was indifferent 
 to the respect due to his office, will always 
 have very great, if not controlling, weight. 
 Again, the question recently raised of the 
 right of congress by independent action and 
 against the views of the president, to recog- 
 nize the independence of a new nation, is 
 more likely to be met hereafter, as hereto- 
 fore, in the spirit of co-operation and full 
 recognition of the executive control of for- 
 eign relations than to be asserted, to the 
 extent of making a direct issue, as it would 
 need to be by a majority of two-thirds of 
 each house. 
 
 The United States government has always 
 held, and, on occasion, exercised, the right 
 in case of disturbances of the peace, either 
 general or local in foreign countries, to land 
 forces and adopt all necessary measures to 
 protect the life and property of our citizens, 
 whenever menaced by lawless acts, which 
 the general or local authority is unwilling 
 or impotent to prevent. This power has al- 
 ways been exercised by the executive depart- 
 ment of the government. The power was 
 asserted in a dispatch of Mr Toucey, secre 1 
 tary of the navy, to Captain Jarvis, U. S. N., 
 March 13, 1860, with reference to the unset- 
 tled state of affairs in Mexico ; by Mr. Adee, 
 acting secretary of state to the Korean min- 
 ister, July 8, 1S95, with reference to the af- 
 fairs in Korea; by President McKinley in 
 his annual message of Dec. 5, 1899, with ref- 
 erence to disturbances in China, and the 
 power was also asserted with reference to 
 disturbances in that country, by Mr. Hill, 
 acting secretary of state to the secretary of 
 the navy, Sept. 11, 1900; and by a dispatch
 
 EXECUTIVE POWER 
 
 11U1 
 
 EXECUTIVE POWER 
 
 from Mr. Merry, United States minister to 
 Nicaragua, Feb. 27, 1899; with reference to 
 disturbances in that country and the Landing 
 of American and English forces. 
 Moore, Int. L. Dig. 400-402. 
 
 Executive officers, including the president, 
 are required to execute the laws as enacted 
 by the legislature or congress, and can in 
 no case nullify them by refusing to execute 
 them so long as their unconstitutionality or 
 invalidity has not been judicially establish- 
 ed, for, until this is done, the constitution- 
 ality is presumed, and in the judicial power 
 alone resides the power to decide as to the 
 validity of a statute ; Pom. Const. L. sees. 
 148, 6G2-GG8; Martin v. Hunter, 1 Wheat. 
 (U. S.) 304, 4 L. Ed. 97; Cohens v. Virginia, 
 6 Wheat (U. S.) 2G4, 5 L. Ed. 257; AMeman 
 v. Booth, 21 How. (U. S.) 50G, 1G L. Ed. 169. 
 
 The question whether an executive officer 
 has, under any circumstances, the right to 
 question the constitutionality of an act of 
 congress, and to make this decision the basi ! 
 of acting upon, claims to be passed upon by 
 him, was the subject of consideration and 
 extended discussion in the sugar bounty case 
 lately pending before the comptroller of the 
 treasury- It was contended on the one hand 
 that every law must be considered valid un- 
 til declared otherwise by the supreme court, 
 and that although the comptroller is an in- 
 dependent officer, and not a mere subordi- 
 nate of the secretary of the treasury or the 
 president, such an exercise of jurisdiction 
 would be a dangerous usurpation by an ex- 
 ecutive officer of judicial authority, which is 
 confided by the constitution exclusively to 
 the courts. On the other hand, it was urged 
 that the constitution is the supreme law, and 
 that an executive officer is responsible for a 
 wrongful act under an unconstitutional stat- 
 ute. It was replied that his responsibility 
 is political. The claim was disallowed by 
 the comptroller upon the ground that the act 
 was unconstitutional and the case sent to 
 the court of claims under the authority of 
 U. S. Rev. Stat. § 10G5. The act in question 
 had been held unconstitutional, but not by 
 the court of last resort; U. S. v. Carlisle, 5 
 App. D. C. 138. Subsequently the act was 
 held to be constitutional by the supreme 
 court, but the question of the power of the 
 comptroller was not determined ; U. S. v. 
 Realty Co., 163 U. S. 1127. 16 Sup. Ct. 1120, 
 41 L. Ed. 215. This decision of the comp- 
 troller and the questions involved have been 
 elaborately discussed by Mr. Black, the writ- 
 er on constitutional law. who, after an ex- 
 amination of the authorities, reaches the con- 
 clusion that the power of an executive offi- 
 cer to judge of the constitutionality of a 
 statute (in advance of a determination by 
 the courts) is confined to cases in which it 
 is necessary for the regulation of his own 
 conduct, and that where the rights of others 
 are involved he must enforce the law; 29 
 Am. L. Rev. S01. See also 11 Op. Atty. Gen. 
 
 -it: Poindexter v. Greenhow, 114 1'. E 
 •J Sup. Ct 903, 962, 29 L 
 
 Kaufman, :< 
 
 v. Bank, 104 U. S. 728, 26 I.. Ed. & B; Leisy 
 
 v. Hardin. 136 I 10 Sup. I 
 
 L. Ed. 128; Huntington v. WorQn 
 S. 102, 7 Sup. I 
 
 The same principle is applied in the 
 governments, in a i e In Louisiana 
 
 it was held that the executive • 
 the state government have no authority to 
 decline the performance of pur< 
 terial duties Imposed upon them by i 
 ute, on the ground that it Is anconstitul 
 An executive officer cannot nullify a law by 
 ting or refusing to act under it; State 
 v. Heard, 47 La. Ann. 1679, IS South. 746, 
 47 L. R. A. 512. 
 
 The so-called war powers of the executive. 
 so much discussed during the Civil War, do 
 not now present a practical - »r dis- 
 
 cussion, and may be passed, with ibis quo- 
 tation from a judicious writer on the sub- 
 ject: 
 
 "During our Civil War, many powers were claim- 
 ed and exercised by the president under a stringen- 
 cy of circumstances for which no provision had been 
 made in the constitution. Secession being the out- 
 growth of the doctrine of states governed by com- 
 pact and not by law. It became necessary, in the 
 complication growing out of the war, whether In the 
 form of military occupancy and blockade, legislative- 
 reconstruction, or judicial protection of persons and 
 property in the seceded states, to find by impli- 
 cation, In the executive department, certain war 
 powers not hitherto contemplated and never before 
 1. While the general results of their exercise 
 doubtless contributed to the restoration of the Un- 
 ion, and the re-establishment of the government of 
 the United States over all its territory, these powers 
 were so far anomalous In their assumption as to 
 afford no justifiable precedents for the government 
 of the executive, in the ordinary circumstances of 
 our federal administration. A formal discussion of 
 their scope and application has accordingly been 
 omitted, because they present exceptions in the body 
 of our constitutional legislation that are never 
 again likely to be repeated." Ordronaux, Const. 
 Leg. 109. See Whiting, War Powers under the Con- 
 stitution ; C lion of Pampb 
 Habeas Corpus, Martial Law, etc. 
 
 The president is not responsible to the 
 courts, civil or criminal; Durand v. Ilollins, 
 4 Blatchf. 451, Fed. Cas. No. 4,186; nor are 
 ts reviewable by-them to the extent of 
 bringing them Into conflict with him: Missis- 
 sippi v. Johnson, -t Wall. (U. S.) 475, IS L. 
 Ed. 437; except that they may declare 
 an order or regulation In excess of his pow- 
 ers; 1'. S. v. The Franklin, 1 Gall 
 Cas. No. 10,585; 9 Am. Law Reg. 524; but 
 with respect to all of his political functions 
 growing out of the foreign relations, the con- 
 trol of military officers, and his relations 
 With congress, it is settled that the courts 
 have no control whatever; Cherokee Nation 
 rgia, 5 Pet (U. S.) 1, 20, 8 L Ed. 25; 
 Luther v. Borden, 7 How. (U. S.) 1. 12 L. 
 Ed. 58i : Mississippi v. Johnson, 4 Wall. (U. 
 s. i -it:.. 18 L. Ed. 437; l Goodn. Comp. Adm. 
 L. 34, 7-".; Pom. Const. L. § t>33. See also 1 
 Yes. 4G7; 1 Yes. Jr. 375; 2 id. ob.
 
 EXECUTIVE POWER 
 
 1132 
 
 EXECUTIVE POWER 
 
 All the acts of the president by which his 
 political powers are exercised are considered 
 equally political, and are only brought with- 
 in 'the scope of judicial examination where 
 the act of some inferior ministerial officer, 
 who is the direct instrument for exercising 
 the executive function, is submitted to the 
 scrutiny of the courts. This usually occurs 
 where the constitutionality of a law is ques- 
 tioned by the judicial examination of the 
 act of some officer who has attempted to 
 carry the law into execution. In such a 
 case there is not a direct judicial examina- 
 tion of the president's acts, or those of his 
 subordinates, but merely the determination 
 of the question whether there is a valid law ; 
 id. 419; Marbury v. Madison, 1 Cranch (U. 
 S.) 137, 2 L. Ed. 60; Mississippi v. John- 
 son, 4 Wall. (U. S.) 475, 18 L. Ed. 437; Pom. 
 Const. Law § 633. 
 
 So, as a necessary incident of the power 
 to perform his executive duties, must be in- 
 cluded freedom from any obstruction or im- 
 pediments ; accordingly, the president can- 
 not be liable to arrest, imprisonment, or de- 
 tention, while he is in the discharge of the 
 duties of his office; and for this purpose his 
 person must be deemed, in civil cases at 
 least, to possess an official inviolability ; 2 
 / Sto. Const. § 1569. 
 
 Whether in any case a court may issue a 
 mandamus to the. governor of a state is a 
 question on which the decisions are not uni- 
 form. In some states it is held that, al- 
 though conceding the independence of the 
 executive from the control of the judiciary 
 with respect to political duties and powers, 
 as to ministerial duties imposed upon the 
 executive, which might have been committed 
 to another officer, the writ may be resorted 
 to; Cotten v. Ellis, 52 N. C. 545; State v. 
 Chase, 5 Ohio St. 528 ; Harpending v. Haight, 
 39 Cal. 189, 2 Am. Rep. 432; Groome v. 
 Gwinn, 43 Md. 572; Greenwood Cemetery 
 Land Co. v. Routt, 17 Colo. 156, 28 Pac. 1125, 
 15 L. R. A. 369, 31 Am. St. Rep. 284; Ten- 
 nessee & C. R. Co. v. Moore, 36 Ala. 371; 
 State v. Thayer, 31 Neb. 82, 47 N. W. 704; 
 Chumasero v. Potts, 2 Mont. 242 ; Martin v. 
 Ingham, 38 Kan. 641, 17 Pac. 162. But the 
 weight of authority would seem to be in 
 favor of the contrary opinion; In re Den- 
 nett, 32 Me. 508, 54 Am. Dec. 602; Mauran 
 v. Smith, 8 R. I. 192, 5 Am. Rep. 564; People 
 v. Cyllum, 100 111. 472; State v. Stone, 120 
 Mo. 428, 25 S. W. 376, 23 L. R. A. 194, 41 Am. 
 St. Rep. 705; Hovey v. State, 127 Ind. 588, 
 27 N. E. 175, 11 L. R. A. 763, 22 Am. St. Rep. 
 663; State v. Governor, 25 N. J. L. 331; 
 State v. Towns, 8 Ga. 360; State v. Stone, 
 120 Mo. 428, 25 S. W. 376, 23 L. R. A. 194, 
 41 Am. St. Rep. 705; Hawkins v. Governor, 
 1 Ark. 571, 33 Am. Dec. 346 ; People v. Gov- 
 ernor, 29 Mich. 320, 18 Am. Rep. 89 ; State v. 
 Drew, 17 Fla. 67 ; State v. Warmoth, 22 La. 
 Ann. 1, 2 Am. Rep. 712; Rice v. Austin, 19 
 Minn. 103 (Gil. 74), 18 Am. Rep. 330; Vicks- 
 
 burg & M. R. Co. v. Lowry, 01 Miss. 102, 48 
 Am. Rep. 76. 
 
 In some cases it is held that the courts 
 have no power, "in the absence of express 
 constitutional provisions, to control the ac- 
 tion of the governor, or to compel him by 
 mandamus to perform any duty either polit- 
 ical or municipal, and whether commanded 
 by the constitution or by law" ; State v. 
 Stone, 120 Mo. 428, 25 S. W. 370, 23 L. R» A. 
 194, 41 Am. St. Rep. 705; State v. Huston, 
 27 Okl. 606, 113 Pac. 190, 34 L. R. A. (N. 
 S.) 380; but the mayor of a city is not such 
 an executive officer as is exempt from judi- 
 cial control; State v. Noonan, 59 Mo. App. 
 524. 
 
 As to other executive officers, such as 
 secretary of state, treasurer, auditor, and 
 the like, though some conflict exists, the 
 better-considered doctrine, and that sup- 
 ported by the great weight of authority, is 
 properly said to be that courts will apply 
 the general principle of law and issue the 
 writ in the case of purely ministerial acts; 
 High, Ext. Leg. Rem. §§ 124a-126, where 
 the cases are collected. 
 
 The same principle is applied to deter- 
 mine how far the courts will interfere in 
 like manner with the heads of executive 
 departments, or bureaus thereof, of the fed- 
 eral government If the act is purely min- 
 isterial the writ will issue ; Kendall v. U. S., 
 12 Pet. (U. S.) 524, 9 L. Ed. 1181; Ballinger 
 v. U. S., 216 U. S. 240, 30 Sup. Ct 338, 54 
 L. Ed. 464; Garfield v. U. S., 211 U. S. 249, 
 
 29 Sup. Ct. 62, 53 L. Ed. 168; U. S. v. Bay- 
 ard, 16 D. C. 428; but it must be an act not 
 growing out of the inherent powers of the 
 officer; U. S. v. Guthrie, 17 How. (U. S.) 
 284, 15 L. Ed. 102 ; and in no case where the 
 act involves the exercise of discretion will 
 the court interfere ; Holloway v. Whiteley, 4 
 Wall. (U. S.) 522, 18 L. Ed. 335; Secretary 
 v. McGarrahan, 9 Wall. (U. S.) 298, 19 L. 
 Ed. 579; Carrick v. Lamar, 116 U. S. 423, 6 
 Sup. Ct 424, 29 L. Ed. 677; U. S. v. Black, 
 12S U. S. 40, 9 Sup. Ct. 12, 32 L. Ed. 354 ; U. 
 S. v. Blaine, 139 U. S. 306, 11 Sup. Ct. 607, 
 35 L. Ed. 183; U. S. v. Lamont, 155 U. S. 
 303, 15 Sup. Ct. 97, 39 L. Ed. 160; and find- 
 ings of fact by an executive officer are con- 
 clusive in the absence of palpable error; 
 Central Trust Co. v. Trust Co., 216 U. S. 251, 
 
 30 Sup. Ct 341, 54 L. Ed. 469, 17 Ann. Cas. 
 1066. 
 
 See, generally, Desty; Rawle ; Story; 
 Miller; Black, Constitution; Sergeant; Sedg- 
 wick, Const. Law ; Thayer, Cas. Const. L. ; 
 Cooley, Const. Lim. ; Elliot's Debates ; Elmes, 
 Executive Departments; Kent, Com. Lect. 
 xiii.; Stubbs, Const. Hist. Eng. ; Todd, Pari. 
 Gov. in Eng. ; Lowell, Gov't of England ; Von 
 Hoist, Hist. U. S. ; Whiting, War Powers; 
 Ordronaux, Const Leg. 99-110; Goodnow, 
 Comp. Adm. Law; Bryce, Am. Com.; Cham- 
 brun, Executive Power in the U. S. ; Fisher, 
 Evolution of the Const; Stevens, Sources
 
 EXECUTIVE POWER 
 
 1133 
 
 EXECUTOR DE SON TORT 
 
 Const. U. S. ; Wilson, Legislative Govern- 
 ment ; Farrand; Willoughby; Watson; Dicey, 
 Constitution; Judicial Power; Legislative 
 Powek; President of the UNITED States. 
 
 EXECUTOR DE SON TORT. One who 
 
 attempts to act as executor without lawful 
 authority. 
 
 A person who, without any authority, in- 
 termeddles with the estate of a decedent and 
 does such acts as properly belong to the 
 office of executor or administrator, thereby 
 becoming a sort of quasi executor, though 
 only for the purpose of being sued or made 
 liable for the assets with which he has inter- 
 meddled. Grace v. Seibert, 235 111. 190, 85 
 N. E. 308, 22 L. R. A. (N. S.) 301; and such 
 executor, having assumed a representative 
 character, cannot deny it, and therefore suf- 
 fers all the liabilities of an executor with- 
 out acquiring the rights or privileges of such 
 office ; id. 
 
 If a stranger takes upon him to act as ex- 
 ecutor without any just authority (as, by 
 intermeddling with the goods of the de- 
 ceased, and many other transactions), he is 
 called in law an executor of his own wrong, 
 de son tort; 2 Bla. Com. 507; Bacon v. Par- 
 ker, 12 Conn. 213 ; Wilbourn v. Wilbourn, 48 
 Miss. 38; 14 E. L. & Eq. 510; Johnston v. 
 Duncan, 3 Litt. (Ky.) 1G3, 14 Am. Dec. 54; 
 White v. Cooper, 3 Pa. 130; P»rown v. Wal- 
 ter, 58 Ala. 310; Barron v. Burney, 38 Ga. 
 2U4. If a man kill the cattle of the testator, 
 or take his goods to satisfy a del it, or collect 
 money due him, or pay out such money, or 
 carry on his business, or take possession of 
 his house, etc., he becomes an executor de 
 son tort. Where a person with whom a will 
 had been left filed it, but took out no letters 
 with the will annexed, or any other legal au- 
 thority to administer on the estate, he be- 
 came an executor de son tort; Morrow v. 
 Cloud, 77 Ga. 114. 
 
 But a stranger may perform many acts in 
 relation to a testator's estate without be- 
 coming liable as executor de son tort. Such 
 are lockins up his goods for preservation, 
 burying the deceased in a manner suitable to 
 his fortune, paying for the funeral expenses 
 and those of the last sickness, making an 
 inventory of his property to prevent loss or 
 fraud solely, feeding his cattle, milking his 
 cows, repairing his houses, etc. Such acts 
 are held to be offices of kindness and chari- 
 ty; Magner v. Ryan, 1!) Mo. 196; Emery v. 
 Berry, 28 N. H. 473, 61 Am. Dec. 622. Nor 
 does paying the debts of the deceased with 
 one's own money make one an executor de 
 son tort; Carter v. Bobbins, 8 Rich. (S. C.) 
 20; Bogue v. Watrous, 59 Conn. 'JIT. 22 At 1. 
 31. Nor does one become executor de son 
 tort by obtaining payment of a debt from an 
 executor de son tort; 65 L. T. N. S. 709. The 
 fact that a widow has taken possession of 
 community property is not sufficient to au- 
 thorize suit against her on a note of her 
 
 deceased husband; Vela v. Guerra. 75 
 595, 12 S. W. ir_'7. As to what acts will ren- 
 der a person so liable, see Godolphin, Orpb. 
 Leg. 91 ; 1 Wi; Abr. 
 
 561; Bull. X. I'. IS; Co: 
 tion (C 3); Rattoon v. 
 (N. Y.) 12U; In re Huffs Estate, 15 8. & R. 
 (Pa.) ."9; White v. Mann, 26 Me. 361; 
 Chandler v. Davidson, <; Blackf. find.' 
 
 An executor de son tort is liable only f<>r 
 such assets as come into his hands, 8 
 not liable for not reducing 
 sion ; Kinard's Adm'r v. Zom . Eq. 
 
 I 2 17: Roumfort v. McAlari 
 193. And it has been held that he is only 
 liable t" th" rightful administrator; Muir v. 
 Trustees of Orphan House, 3 Barb. Cn. (N. 
 T.) 477: Brown v. Walter, 58 Ala. 310, B • 
 see Hansford v. Elliott. 9 Leigh (Va. 
 Swift v. Martin, 19 Mo. App. 488; . 
 imply that he is also liable to the 1 
 law. lie cannot be sued except for fraud, 
 and he must be sued as executor; - Buck/ 
 minster v. Ingham, Brayt (Vt.i 116; Fran- 
 cis v. Welch. .".3 X. C. 215; Nass v. Van- 
 swearingen, io s. & R. (Pa.) 144; Brown's 
 Ex'rs v. Durbin's Adm'r, 5 J. J. Marsh. 
 (Ky.) 170. But in general he is liable to all 
 the trouble of an executorship, with none of 
 its profits. And the law on this head - 
 to have been borrowed from the civil-law 
 doctrine of pro h<i !<<!<■ gestio. See H< 
 cius, Antiq. Syntagma, lib. 2, tit. 17, § 16, p. 
 408. 
 
 An executor de son tort Is an executor 
 only for the purpose of being sued, and nol 
 for the purpose of suing; Francis v. Welch, 
 33 N. C. 215. He is sued as if rightful i 
 tor. But if he defends as such he becomes 
 thereby also an executor dc son tort ; Lawes, 
 PI. 190, note: Davis v. Connelly's Ex'rs. 1 
 P.. Monr. (Ky.) 136; Gregory's Ex'rs v. 
 Forrester, 1 McCord. Ch. (S. C.) 318; Hill 
 . Henderson, 13 Smedes & M. <M 
 Norfolk's Ex'r v. Cantt, 2 II. .V .1. (Md.) 435. 
 When an executor de son tort takes out let- 
 ters of administration, bis acts are legalized, 
 and are to be viewed in the same lighl as if 
 be had been rightful administrator when the 
 goods came iut<> his hands: Magner v. Ryan, 
 1'.) Mm. 196; Shillaber v. Wyman. 1.". Mas-. 
 325; Rattoon v. Overacker, 8 Johns. (N. I*.) 
 126. But see, contra, Clements v. Swain. '_' 
 N. II. 475. A voluntary sale by an I 
 tor dc son tort Confers Only the same title 
 ,m the purchaser that he himself had; <'> 
 
 Excli. 164; 20 H. I.. & Eq. 145; Carpenter v. 
 
 Coin-. 20 Ala. 587; Meigan v. McDonough, 
 10 Wat is i Pa.) 287. 
 
 It is held that in regard to land no man 
 can be an executor '/-' mo; tort; Green e. 
 Dewit, l Rdot Conn.) 183; Nass v. Van- 
 swearingen, 7 s. & EL (Pa.) 192; id.. 10 > 
 ,V: l';. (Pa.) 144. In Arkansas it is said thai 
 i here is no such thing as a technical ex< 
 de son tort: Baraslen v. Odum, 17 Ark. 122; 
 Rust v. Witherington, id. 129; and so in
 
 EXECUTOR DE SON TORT 1134 EXECUTORS AND ADMINISTRATORS 
 
 Missouri; Rozelle v. Harmon, 103 Mo. 339, 
 15 S. W. 432, 12 L. R. A. 187. See, on this 
 subject, Smith v. Porter, 35 Me. 287 ; Leach 
 v. Pillsbury, 15 N. H. 137 ; Grave's Adm'r v. 
 Toage, 17 Mo. 91 ; Hardy v. Thomas, 23 Miss. 
 544, 57 Am. Dec. 152; Josey v. Rogers, 13 
 Ga. 478; Woolfork's Adm'r v. Sullivan, 23 
 Ala. 548, 58 Am. Dec. 305 ; Simonton v. Mc- 
 Lane's Adm'r, 25 Ala. 353; Morrison v. 
 Smith, 44 N. C. 399; Walworth v. Ballard, 
 12 La'. Ann. 245; Lee v. Wright, 1 Rawle 
 (Pa.) 149; Schoul. Ex'rs & Adm'rs § 184. 
 
 EXECUTORS AND ADMINISTRATORS. 
 The person or persons to whom is committed 
 the administration of the estates of dece- 
 dents, the first being that of a person named 
 in a will to execute its provisions, the latter 
 that of the officer designated under the law 
 to administer the estate of one who has died 
 intestate. 
 
 An executor is one to whom another man 
 commits by his last will the execution of 
 that will, and testament. 2 Bla. Com. 503. 
 A person to whom a testator by his will 
 commits the execution, or putting in force, 
 of that instrument and its codicils. Fonbl. 
 Rights and Wrongs 3.07. See Letters Tes- 
 tamentary ; H^eres. 
 
 An administrator is a person authorized to 
 manage and distribute the estate of an in- 
 testate, or of a testator who has no executor. 
 In South African law the term is used as 
 equivalent to trustee. 
 
 An administrator is merely the agent or 
 trustee of the estate of the decedent, acting 
 under the immediate direction of the law 
 prescribing his duties, regulating his conduct 
 and limiting his powers; Collamore v. Wil- 
 der, 19 Kan. 67. 
 
 Administration. The management of the 
 estate of an intestate, or of a testator who 
 has no executor. 2 Bla. Com. 494; 1 Wil- 
 liams, Ex. 401. The term is applied broadly 
 to denote the management of an estate by 
 an executor, and also the management of 
 estates of minors, lunatics, etc., in those 
 cases where trustees have been appointed 
 by authority of law to take charge of such 
 estates in place of the legal owners. 
 
 No administration is necessary where 
 there are no creditors and the heirs divide 
 the assets in kind or otherwise by mutual 
 agreement; McCracken v. McCaslin, 50 Mo. 
 App. 85; Cadmus v. Jackson, 52 Pa. 307; 
 Brown v. Baxter, 77 Kan. 97, 94 Pac. 155, 
 574; or where the property of the intes- 
 tate is exempt; Rivera v. R. Co. (Tex.) 149 
 S. W. 223; or where the widow is sole lega- 
 tee and all debts and expenses are paid ; 
 Block v. Butt, 41 Ind. App. 487, 84 N. E. 357 ; 
 or where persons in interest settle their 
 rights outside of the probate court; Prichard 
 v. Mulhall, 140 la. 1, 118 N. W. 43; and, in 
 some states, such settlement, without admin- 
 istration, is authorized by statute ; Rogan v. 
 Arnold, 233 111. 19, 84 N. E. 58. 
 
 The controlling place of administration is 
 the domicile of the testator; Higgins v. 
 Eaton, 188 Fed. 938. 
 
 The right of administration is a valuable 
 one and not to be taken away, except as pro- 
 vided by statute; Williams v. Williams, 24 
 App. D. C. 214. 
 
 Originally in England the crown claimed 
 the right of administering the personal prop- 
 erty of intestates and exercised it by its 
 ministers, or granted it as a franchise to 
 lords of manors or others and afterwards to 
 prelates, who greatly abused the trust, un- 
 til, under the Statute of Westminster II, tbe 
 ordinary was bound to pay the debts of the 
 deceased so far as his goods would extend, 
 but still the ecclesiastical persons who were 
 entrusted with the duty, appropriated large 
 portions of them upon the pretext of pious 
 uses, until they were required by Stat. 31 
 Edw. III. c. 11, § 1, to grant administration 
 to "the next of kin and most lawful friends 
 of the dead person intestate," who were held 
 accountable in the common-law court as ex- 
 ecutors were. The administration of per- 
 sonal estates then became assimilated to 
 carrying out the provisions of wills, and the 
 function of the ecclesiastical courts was 
 merely the grant of letters and the super- 
 vision of their execution. Next, under 21 
 Hen. VIII., the ordinary could appoint the 
 widow or next of kin, or both, at his discre- 
 tion. The jurisdiction in England was taken 
 away from the ecclesiastical court by Stat. 
 20 & 21 Vic. c. 77, and vested in a judge of 
 probate. The court of probate is now part 
 of the Probate, Divorce and Admiralty Divi- 
 sion of the High Court of Justice. 
 
 In the United States, what is known as 
 probate jurisdiction is exercised generally 
 by courts known as probate courts held by 
 surrogates, judges of probate, registers of 
 wills, etc. 
 
 There are various kinds of administration : 
 Ad colligendum. That which is granted 
 for collecting and preserving goods about 
 to perish (bona peritura). The only power 
 over these goods is under the form pre- 
 scribed by statute. 
 
 Ancillary. That which is subordinate to 
 the principal administration taken out in 
 another state or country where there are 
 assets; Appeal of' Barry, 88 Pa. 131; 
 Stevens v. Gaylord, 11 Mass. 256; Rosenthal 
 v. Renick, 44 111. 202; Trimble v. Dzieduz- 
 yiki, 57 How. Pr. (N. Y.) 208. In the ab- 
 sence of a statute allowing it (as in some 
 states) an administrator in one state cannot 
 sue as such in another, unless ancillary let- 
 ters are taken out; Noonan v. Bradley, 9 
 Wall. (U. S.) 394, 19 L. Ed. 757; and this 
 may be done by amendment after the bill is 
 filed; Black v. Henry G. Allen Co., 42 Fed. 
 618, 9 L. R. A. 433. One who is both ancil- 
 lary and domiciliary administratrix of the 
 same estate cannot be called on, in one ju- 
 risdiction, to account for assets received in
 
 EXECUTORS AND ADMINISTRATORS 1135 EXECUTORS AND ADMINISTRATORS 
 
 the other; Hamilton v. Carrington, 41 S. C. 
 385, 10 S. E. 016. 
 
 Executors in the state of testator's domicil 
 are not bound, under the full faith and cred- 
 it clause, by a decree of the court of another 
 state against an administrator c. t. a., in a 
 case submitted to arbitration before the tes- 
 tator's death; Brown v. Fletcher's Estate, 
 210 U. S. 82, 28 Sup. Ct. 702, 52 L. Ed. 966. 
 
 Cwterorum. That which is granted as to 
 the residue of an estate, which cannot be ad- 
 ministered under the limited power already 
 granted; 4 Hagg. Eccl. 382, 380; 4 M. & G. 
 308 ; 1 Curt. Eccl. 28G. 
 
 It differs from administration de bonis non 
 in this, that in casterorum the full power 
 granted is exercised and exhausted, while 
 in the other the power is, for some cause, not 
 fully exercised. 
 
 Cum testamento anncxo. That which is 
 granted where no executor is named in the 
 will, or where the one named dies, or is in- 
 competent or unwilling to act Such an ad- 
 ministrator must follow the statute rules of 
 distribution, except when otherwise directed 
 by the will; Ex parte Brown, 2 Bradf. (N. 
 Y.) 22; Farwell v. Jacobs, 4 Mass. 634; 
 Stacy v. Thrasher, 6 How. (U. S.) 59, 12 L. 
 Ed. 337. The residuary legatee is appointed 
 such administrator rather than the next of 
 kin; Estate of Donnelly, 2 Phil. (Pa.) 54; 
 Thornton v. Winston, 4 Leigh (Va.) 152; 2 
 Add. 352. 
 
 De bonis non. That which is granted when 
 the first administrator dies before having 
 fully administered. The person so appointed 
 has in general the powers of a common ad- 
 ministrator ; Bacon, Abr. Executors, B, 1; 
 Rolle, Abr. 907; Matthews v. Douthitt, 27 
 Ala. 273, 62 Am. Dec. 7(55; State v. Porter, 
 9 Ind. 342; Thomas v. Stanley, 4 Sneed 
 (Tenn.) 411; Watson v. Jacobs. 29 Vt. 170; 
 Johnson v. Bank, 11 Md. 412 ; Coffin v. Heath, 
 6 Mete. (Mass.) 7S; Wiggin v. Swett, 6 Mete. 
 (Mass.) 19S, 39 Am. Dec. 716; Prusa v. 
 Everett, 78 Neb. 250, 110 X. W. 508; Prusa v. 
 Everett, 78 Neb. 251, 113 N. W. 571. 
 
 A residuary legatee has sufficient interest 
 in an estate to request the appointment of an 
 administrator d. b. n. to collect debts, wheth- 
 er it will make the estate solvent or not ; 
 Mallorys Appeal from Probate, 62 Conn. 21S, 
 25 Atl. 109. 
 
 De bonis non cum testamento annexo. 
 That which is granted when an executor 
 dies leaving a part of the estate unadminis- 
 tered. Comyns, Dig. Adm. B, 1; Ellmaker's 
 Estate, 4 Watts (Pa.) 3-1. 38, :::>. It cannot 
 be based on a will made in a foreign country 
 if invalid there because of defective execu- 
 tion; Coleman's Estate, 13 Pa. Co. Ct 81. 
 
 Durante absentia. That which subsists 
 during the absence of the executor and until 
 he has proved the will. In England, by stat- 
 ute, such an administration is raised during 
 the absence of the executor, and is not de- 
 termined by the executor's dying abroad; 4 
 
 Hagg. Eccl. 300; 3 Bos. & P. 26; see Willing 
 •t, 5 Ruwle (Pa. ' 264. 
 
 Durante minori (State. That which is 
 granted when the executor is a minor. It 
 continues until the minor attains bis lawful 
 age to act. Which at common law is seven- 
 teen years; 5 Coke 29. When an infant is 
 sole executor, the Btatuti 
 s. provides that probate shall not lie grant- 
 ed to him until his full age of twenty-one 
 years, and that adm. cum test, annexo shall 
 be -'ranted in the mean time to his guardian 
 or other suitable person. A similar statute 
 pro\ Lsion exists iu most of the United States. 
 This administrator may collect assets, pay 
 debts, sell bona pirituru, and perform sue!) 
 other acts as require immediate attention. 
 He may sue and be sued; Bacon, Abr. 
 editor, B, 1; Cro. Eliz. 718: 2 I'.la. Com. 
 503; 5 Coke 29; Taylor v. Barron, 35 X. II. 
 484, 4:>3. 
 
 Where there are no creditors or heirs of 
 age, the tutor of minor heirs has a right to 
 take possession of succession property and 
 administer their interests in it ; Succession 
 of Bourgeois, 43 La. Ann. 247, 9 South. 34. 
 
 Foreign administration. That which is ex- 
 ercised by virtue of authority properly con- 
 ferred by a foreign power. 
 
 The general rule in England and the Unit- 
 ed states is that letters granted in one ju- 
 risdiction, give no authority to sue or be sued 
 in another jurisdiction, though they may he 
 ground for new probate authority ; 5 Ves. 
 -11; Blackstone v. Miller. 188 U. S. 189, 23 
 Sup. Ct. 277, 47 L. Ed. 439; Doe v. M- 
 Farlaud, 9 Cra. (U. S.) 151, 3 L. Ed. 687; 
 Armstrong v. Lear. 12 Wheat. (U. S.) 169, 
 6 L. Ed. 5S9; Perkins v. Williams, 2 Root 
 (Conn.) 402; Dangerlield's Ex'x v. Thurs- 
 ton's Heirs, 8 Mart. (X. S.) [La.] 232; 
 M'Cullough v. Young, 1 Binn. (Pa.) 03; Mat- 
 thews v. Douthitt. 27 Ala. 273, 62 Am. Dec. 
 765; Fisk v. Norvel, 9 Tex. 13, 58 Am. Dec. 
 128; State v. Price, 21 Mo. 434; Cocke v. 
 Finley, 29 Miss. 127; Dickinson v. MVraw. 
 1 Rand. (Va.) 158; AUsup v. Allsup's Heirs. 
 H) Yerg. (Tenn.) 2S3; Stearns v. Burnham, 
 5 Greenl. (Me.) 261, 17 Am. Dec. 228; Tay- 
 lor v. Barron, 35 N. II. 484; Wood v. Gold, 
 4 McLean O. C ."77, Fed. Cas. Xo. 17,'.»17: 
 Vaughan v. Northup, 15 Pet (U. S.) l. i<» 
 L. Ed. 639; Hid v. Tucker. 13 Bow. (U. B.) 
 458, 14 L. Ed. 223; Black v. Allen Co., 42 
 1-vd. 618, '.» L. B, A. 433; Harrington v. Trust 
 Co., 9 X. Y. Supp. 4.".;:. Sence, when persons 
 are domiciled and die in one country as A. 
 and have personal property iu another as B, 
 the authority must be hail in B, but exer- 
 cised according to the laws of A; Story, 
 Confl. Laws -j:;. 117; Leach v. Pillsbury, 15 
 X. II. 137; Spraddling v. Pipkin, 15 Ho. 118; 
 Williams v. Williams, 5 Md. 467; Ex parte 
 McComb, 4 Bradf. tX. Y. i 151; King v. U. 
 s., l:7 Ct CL 529; Rutherford v. U. S., 27 
 Ct CI. 539; and see DoMlCTX- 
 
 There is no legal privity between admin-
 
 EXECUTORS AND ADMINISTRATORS H3G EXECUTORS AND ADMINISTRATORS 
 
 istrators in different states; nor between 
 executors of a will in one state and adminis- 
 trators c. t. a. in another ; Wilson v. Ins. Co., 
 1(34 Fed. 817, 90 C. C. A. 593, 19 L. R. A. (N. 
 S.) 553. The principal administrator is to 
 act in the intestate's domicil, and the ancil- 
 lary is to collect claims and pay debts in the 
 foreign jurisdiction and pay over the surplus 
 to his principal ; Pond v. Makepeace, 2 Mete. 
 (Mass.) 114; 3 Hagg. Eccl. 199; Jones v. 
 Marable, 6 Humph. (Tenn.) 116; Lawrence 
 v. Kitteridge, 21 Conn. 577, 56 Am. Dec. 3S5 ; 
 Stokely's Estate, 19 Pa. 476 ; Riley v. Riley, 
 3 Day (Conn.) 74, 3 Am. Dec. 260; The 
 Boston, 1 Blatchf. & H. 309, Fed. Cas. No. 
 1,669; Kilpatrick v. Bush, 23 Miss. 199; 2 
 Curt. Eccl. 241; Carmichael v. Ray, 1 Rich. 
 (S. C) 116. 
 
 Payment to an ancillary administrator is 
 no bar to a suit by the administrator of the 
 domicile ; Maas v. Bank, 36 Misc. 154, 72 
 N. Y. Supp. 1068; nor is it a defence to a 
 prior action by the domiciliary administra- 
 tor in another state, of which the defendant 
 had knowledge before payment ; Steele v. 
 Ins. Co., 160 N. Y. 703, 57 N. E. 1125. For 
 other cases see 15 Harv. L. Rev. 412. But in 
 Quebec a foreign administrator is recog- 
 nized; 12 Harv. L. Rev. 287; as well as 
 foreign guardians and receivers, and this 
 rule is said to be satisfactory in operation; 
 id., citing Lafleur, Confl. L. 
 
 An administrator appointed in Michigan 
 cannot sue a resident of New York in the 
 United States circuit court in that state 
 when he had not taken out letters of admin- 
 istration in New York ; Johnson v. Powers, 
 139 U. S. 156, 11 Sup. Ct. 525, 35 L. Ed. 112. 
 
 But some courts hold that the probate of 
 a will in a foreign state, if duly authenti- 
 cated, dispenses with the necessity of taking 
 out new letters in their state ; Lancaster v. 
 McBryde, 27 N. C. 421 ; Gray v. Patton, 2 B. 
 Monr. (Ky.) 12; Rice v. Jones, 4 Call (Va.) 
 S9; Vaughan v. Northup, 15 Pet. (U. S.) 1, 
 10 L. Ed. 639; Ives v. Allyn, 12 Vt. 589; 
 Hayes v. Pratt, 147 U. S. 557, 13 Sup. Ct. 503, 
 37 L. Ed. 279. 
 
 Where a deceased plaintiff was domiciled 
 in another state, an executor appointed in 
 the domicil will be preferred to a temporary 
 administrator appointed in the state of the 
 forum, as the new party ; Norman v. Goode, 
 113 Ga. 121, 38 S. E. 317. 
 
 It has been held that possession of prop- 
 erty may be taken in a foreign state, but a 
 suit cannot be brought without taking out 
 letters in that state ; Watt's Ex'rs v. Shep- 
 pard, 2 Ala. 429 ; Trotter v. White, 10 Smedes 
 & M. (Miss.) 607; Suarez v. City of New 
 York, 2 Sandf. Ch. (N. Y.) 173. In Arizona 
 suit may be brought upon a foreign judgment 
 without taking out new letter's of adminis- 
 tration ; Arizona Cattle Co. v. Huber, 4 Ariz. 
 69, 33 Pac. 555. See Conflict of Laws. 
 
 For the purpose of administration, the 
 situs of a debt is the domicil of the debtor 
 
 and not the place where the evidence of the 
 debt is located; Michigan Trust Co. v. Pro- 
 basco, 29 Ind. App. 109, 63 N. E. 255; Mur- 
 phy v. Crouse, 135 Cal. 14, 66 Pac. 971, 87 
 Am. St. Rep. 90, where it was said that in 
 this respect certificates of stock do not differ 
 from other choses in action. The situs, as 
 property, of corporate stock owned by a non- 
 resident decedent is within the county where 
 the corporate property is or where the cor- 
 poration has its principal place of business ; 
 In re Arnold, 114 App. Div. 244, 99 N. Y. 
 Supp. 740. 
 
 Pendente lite. That which is granted 
 pending the controversy respecting an al- 
 leged will or the right of appointment. An 
 officer of the court is appointed to take care 
 of the estate only till the suit terminates; 
 2 P. Will. 589; 1 Hagg. Eccl. 313 ; Bergin 
 v. McFarland, 26 N. H. 533; Fisk v. Norvel, 
 9 Tex. 13, 58 Am. Dec. 128; Barksdale v. 
 Cobb, 16 Ga. 13; Cole v. Wooden, 18 N. J. 
 L. 15. He may maintain suits, but cannot 
 distribute the assets ; 1 Ball & B. 192 ; Cain 
 v. Warford, 7 Md. 282; Appeal of Patton, 31 
 Pa. 465; Rogers v. Dively, 51 Mo. 193. 
 
 Public. That which the public adminis- 
 trator performs. This is in many of the 
 states by statute in those cases where per- 
 sons die intestate, without leaving any who 
 are entitled to apply for letters of adminis- 
 tration ; Ferrie v. Public Administrator, 3 
 Bradf. (N. Y.) 151; Public Adm'rs v. Bur- 
 dell, 4 id. 252. 
 
 In many states there Is provision of iaw 
 for the appointment of a public administra- 
 tor whose duty it is to administer upon the 
 estate of any person found dead within his 
 jurisdiction. Such officer is competent to 
 administer on the estate within his county 
 of any decedent irrespective of the place of 
 his death ; In re Richardson's Estate, 120 
 Cal. 344, 52 Pac. 832 ; and such administra- 
 tor has no authority to refuse to enter upon 
 or to continue the administration of an es- 
 tate, which by law he should administer. 
 He cannot retain the office and choose for 
 himself which of its duties he will perform; 
 State v. Kennedy, 73 Mo. App. 384. 
 
 The authority of a public administrator 
 to take charge of an estate cannot be col- 
 laterally questioned; Dunn v. German- Amer- 
 ican Bank, 109 Mo. 90, 18 S. W. 1139 ; Weir 
 v. Monahan, 67 Miss. 434, 7 South. 291. 
 
 Special. That which is limited either in 
 time or in power. Such administration does 
 not come under the statutes of 31 Edw. III. 
 c. 11, and 21 Hen. VIII. c. 5, on which the 
 modern English and American laws are 
 founded. A judgment against a special ad- 
 ministrator binds the estate; 1 Sneed 430; 
 although there is no property but merely a 
 right of action, and if there is delay in 
 granting the administration, a special ad- 
 ministrator might be appointed where im- 
 mediate settlement could be made; Groce v. 
 Helm, 91 Mich. 450, 51 N. W. 1106. In the
 
 EXECUTORS AND ADMINISTRATORS 1137 EXECUTORS AND ADMINISTRATORS 
 
 United States, administration is a subject 
 charged upon courts of civil jurisdiction. A 
 multiplicity of statutes defines the powers 
 of such courts iu the various states. The 
 public officer authorized to delegate the trust 
 is (.ailed surrogate, judge of probate, register 
 of wills, etc. In some states, these courts 
 are of special jurisdiction, while in others 
 the power is vested in count}' courts. 
 
 Death of the intestate must have taken 
 place, or the court will have no Jurisdiction. 
 Probate proceedings on the estate of a per- 
 son who is not dead are void; Fay v. Costa, 
 2 Cal. App. 241, 83 Pac. 275; Steele's Un- 
 known Heirs v. Belding (Tex.) 148 S. W. 
 592. A decree of the court is prima juiie evi- 
 dence of his death, and puts the burden of 
 disproof upon the party pleading in abate- 
 ment; 3 Term 130; Munro v. Merchant, 20 
 Barb. (N. Y.) 383; Barkaloo's Adm'r v. 
 Emerick, 18 Ohio 268. 
 
 Estates of absentees. Statutes authoriz- 
 ing administration on the estate of an ab- 
 sentee after a fixed period, as if he were 
 dead, have been held void as a deprivation 
 of property without due process of law; Carr 
 v. Brown, 20 R. I. 215, 3S Atl. 9, 38 L. R. A. 
 294, 78 Am. St. Rep. 855; Lavin v. Bank, 1 
 Fed. 041, 18 Blatchf. 1 ; Clapp v. Houg, 12 
 N. D. 000, 98 N. W. 710, 65 L. R. A. 757, 102 
 Am. St. Rep. 589; Savings Bank of Balti- 
 more v. Weeks, 103 Md. 001, 04 Atl. 295, 6 L. 
 R. A. (N. S.) 090; Selden v. Kennedy, 104 
 Va. 820, 52 S. E. 035, 4 L. R. A. (N. S.) 944, 
 113 Am. St. Rep. 1070, 7 Ann. Cas. 879; in 
 the absence of a statute; Scott v. McNeal, 
 154 U. S. 49, 14 Sup. Ct. 1108, 38 L. Ed. S9G ; 
 Springer v. Shavender, US N. C. 53, 23 S. E. 
 976, 54 Am. St. Rep. 708 ; Devlin v. Com., 101 
 Pa. 273, 47 Am. Rep. 710; subsequently a 
 statute was passed in Pennsylvania and held 
 constitutional; Cunnius v. School Dist, 206 
 Pa. 469, 56 Atl. 16, 9S Am. St. Rep. 790; 
 this judgment was affirmed in 198 U. S. 458, 
 25 Sup. Ct. 721, 49 L. Ed. 1125, 3 Ann. Cas. 
 1121, where the court distinguished the case 
 from that in 154 U. S., supra, upon the 
 ground that in the former case there was no 
 statute, and that in the present one, a stat- 
 ute having been passed and the period of 
 absence being fixed and not unreasonably 
 brief, it was valid and not open to the ob- 
 jection of want of due process of law ; and 
 similar statutes have been held valid ; Bar- 
 ton v. Kimmerley, 105 Ind. 6.09, 76 N. E. 250, 
 112 Am. St. Rep. 252; Roderigas v. Savings 
 Inst, 63 N. Y. 400. 20 Am. Rep. 556, which 
 appeared for a time to stand alone and was 
 frequently referred to as having been de- 
 cided by a mere majority of the court. The 
 same statute was held invalid by the fed- 
 eral court in Lavin v. Savings Bank, 18 
 Blatchf. 1, 1 Fed. 041. So far as the federal 
 constitution is concerned, the Pennsylvania 
 case in Cunnius v. School Dist., 198 U. S. 
 458, 25 Sup. Ct. 721, 49 L. Ed. 1125, would 
 seem to settle the question, at least so far 
 Bouv.— 72 
 
 as to determine -that such statutes ar< 
 
 obnoxious to the XlVth Amendment ot' the 
 
 federal constitution. So far as the 
 
 constitutions are concerned the cases differ. 
 
 as appears by the above citati 
 
 in .Maryland is put mainly upon t! • 
 
 that the act contained no pro Lring 
 
 that before the distribution of the property 
 
 of the absentee, security should be given for 
 
 its refund if he should prove to be alive. 
 
 Appointment of I 
 TBATOBS and the Letters 'JV 
 ok Administration. The appointment of ex- 
 ecutors and administrators is made upon ap- 
 plication to the proper officer having juris- 
 diction, in some states by a petition foil 
 by a citation to the interested parties, 
 served upon them or published according to 
 law. Any one of such interested parties may 
 appear and show cause against the appoint- 
 ment In other states the appointment is 
 made without notiee. upon proof to tin- 
 bate officer of the jurisdictional facts. The 
 evidence of appointment which is delivered 
 to the appointee is termed, in the case of ad- 
 ministrators. Letters of Administration, and 
 in the case of executors. Letters Testa 
 tary. In either case the letters certify that 
 there is given to the executor or adminis- 
 trator, as the case may be, full power of 
 administration of the goods, chattels, rights, 
 and credits which were of the deceased, and 
 the person appointed is required to make an 
 inventory and file the same, to pay the debts 
 of the deceased so far as the property will 
 extend, in the legal order of payment, and 
 render a true and just account of his trans- 
 actions in the administration of the trust. 
 In respect to all matters relating thereto, 
 there is little or no difference in the law re- 
 lating to letters of administration or letters 
 testamentary. The grant of such lett- 
 a judicial act and recorded as such, and the 
 letters themselves should be duly authenti- 
 cated under the seal of the court; Schoul. 
 Ex. & Ad. § US. For the form of Letters, 
 see Smith, 1'rob. Pract App.; Witzel v. 
 Pierce, l'l' Ga. IT-'. 
 
 In most of the states it is provided by law 
 that both executors and administrators shall 
 be required to give bond before receiving 
 their letters from the probate authority. 
 Such requirements have been held to impose 
 on the executors ami administrators no new 
 duties, but their effect is merely t<> give addi- 
 tional remedy to creditors. Legatees, aud 
 distributees; Eaton v. Benelield, 2 Blackf. 
 (Ind.) 52. Iu some jurisdictions it is quite 
 usual to find a provision in the will dispells 
 ing with the giving ot' the bond by the execu- 
 tors and such Indication ot" the will of the 
 testator is respected, it has been held, how- 
 ever, that a provision of a will that the 
 executor may act without executing a bond 
 is at all times subject to the control of the 
 courts; Busch v. Etapp, 63 S. W. IT'.', 23 Ky. 
 L. Rep. 0u5. One who is not interested in
 
 EXECUTORS AND ADMINISTRATORS 1138 EXECUTORS AND ADMINISTRATORS 
 
 the assets of the estate can raise no ques- 
 tion as to the sufficiency or legality of the 
 bond which has been accepted ; Jones v. 
 Smith, 120 Ca. 042, 48 S. E. 134. The fail- 
 ure of an administrator to give a bond is 
 ground for removal; Toledo, St. L. & K. C. 
 R. Co. v. Reeves, 8 Ind. App. G67, 35 N. E. 
 199; but the fact that an executor's bond 
 is invalid, is no ground for his removal ; 
 Barricklow v. Stewart, 31 Ind. App. 446, 6S 
 N. E. 316. 
 
 Executors and administrators are charged 
 with a trust, and liable for the want of due 
 care such as prudent men exercise in manag- 
 ing their own affairs ; State v. Dickson, 213 
 Mo. 66, 111 S. W. 817; In re Chadbourne, 
 15 Cal. App. 363, 114 Pac. 1012. 
 
 The grant of letters has been held to be 
 prima facie evidence of all the essential ju- 
 risdictional facts; Davis v. Swearingen, 56 
 Ala. 31; but it is generally considered that 
 the probate court, in granting letters of ad- 
 ministration does not adjudicate that the 
 person is dead, but that letters shall be 
 granted to the applicant ; Carroll v. Carroll, 
 60 N. Y. 121, 19 Am. Rep. 144; Newman v. 
 Jenkins, 10 Pick. (Mass.) 515; and the let- 
 ters are not legal evidence of the death; 
 Mutual Ben. Life Ins. Co. v. Tisdale, 91 U. 
 S. 238, 23 L. Ed. 314. Letters of administra- 
 tion upon the estate of a person who is in 
 fact alive have no validity or effect as 
 against him; Scott v. McNeal, 154 U. S. 34, 
 14 Sup. Ct. 1108, 38 L. Ed. 896. 
 
 As to the grant of letters of administration 
 upon the estate of a person presumed to be 
 dead, see supra. 
 
 A grant of letters which includes two 
 estates under one administration would be 
 irregular and objectionable, but it has been 
 held not to be void ; Grande v. Herrera, 15 
 Tex. 533 ; the letters should be signed by 
 the judge or other probate officer ; Succes- 
 sion of Carlon, 26 La. Ann. 329; Matthews 
 v. Joyce, 85 N. C. 258; and they are not void 
 though the seal of the court is affixed in the 
 wrong place ; Sharp v. Dye, 64 Cal. 9, 27 
 Pac. 789. 
 
 Letters testamentary and of administration 
 are, according to their terms and extent, con- 
 clusive as to personal property while they re- 
 main unrevoked. They cannot be questioned 
 in a court of law or of equity, and cannot be 
 impeached, even by evidence of fraud or for- 
 gery. Proof that the testator was insane, or 
 that the will was forged, is inadmissible ; 12 
 Ves. 298; Broderick's Will, 21 Wall. (U. S.) 
 503, 22 L. Ed. 599 ; Hall v. Woodman, 49 N. 
 H. 295 ; Appeal of Hegarty, 75 Pa. 503 ; In- 
 habitants of Dublin v. Chadbourn, 16 Mass. 
 433; Jackson v. Le Grange; 19 Johns. (N. Y.) 
 386, 10 Am. Dec. 237; Irwin v. Scriber, 18 
 Cal. 499 ; Carroll v. Carroll, 60 N. Y. 123, 19 
 Am. Rep. 144 ; Moore's Estate v. Moore, 33 
 Xeb. 509, 50 N. W. 443; O'Connor v. Hug- 
 gins, 113 N. Y. 511, 21 N. E. 1S4 ; Robinson v. 
 Epping, 24 Fla. 237, 4 South. S12. But if the 
 
 nature of the plea raise the issue, it may be 
 shown that the court granting the supposed 
 letters had no jurisdiction, and that its ac- 
 tion is therefore a nullity ; 3 Term 130 ; see 
 Knox v. Nobel, 77 Hun 230, 2S N. Y. Supp. 
 355 ; or that the seal attached to the sup- 
 posed probate has been forged, or that the 
 letters have been revoked, or that the testa- 
 tor is alive ; In re Huff's Estate, 15 S. & R. 
 (Pa.) 42 ; Griffith v. Frazier, S Cra. (U. S.) 9, 
 3 L. Ed. 471; Jochumsen v. Bank, 3 Allen 
 (Mass.) 87 ; Duncan v. Stewart, 25 Ala. 40S, 
 60 Am. Dec. 527 ; Harwood v. Wylie, 70 Tex. 
 53S, 7 S. W. 789. Where an executor quali- 
 fied and acted for many years under his ap- 
 pointment;, he will not he allowed to dispute 
 the recitation in his appointment that cita- 
 tion to the heirs was issued and served ; In 
 re Moore, 95 Cal. 34, 30 Pac. 106. 
 
 Though the probate court has exclusive ju- 
 risdiction of the grant of letters, yet where 
 a legacy has been obtained by fraud, or the 
 probate has been procured by fraud on the 
 next of kin, a court of equity would hold the 
 legatee or wrong-doer as bound by a trust for 
 the party Injured ; Wms. Ex. 552. While a 
 court of equity cannot remove an executor ; 
 Mannhardt v. Staats Zeitung Co., 90 111. App. 
 315 ; it may restrain him from acting, though 
 such restraint will incidentally prevent him 
 from performing his duties as executor; Bent- 
 ley v. Dixon, 60 N. J. Eq. 353, 46 Atl. 6S9 ; and 
 even take the estate out of his hands and 
 place it in the custody of a receiver; Bolles 
 v. Bolles, 44 N. J. Eq. 385, 14 Atl. 593. 
 
 Letters may be revoked by the court which 
 made the grant, or on appeal to a higher tri- 
 bunal, reversing the decision by which they 
 were granted. Special or limited administra- 
 tion will be revoked on the occasion ceasing 
 which called for the grant. An executor or 
 administrator will be removed when the let- 
 ters were obtained improperly; Wms. Ex. 
 571. 
 
 Of their effect in a state other than that in 
 which legal proceedings were instituted. 
 
 In view of the rule of the civil law, that 
 personalia sequuntur personam, certain ef- 
 fect has been given by the comity of nations 
 to a foreign probate granted at the place of 
 the douiicil of the deceased, in respect to the 
 personal assets in other states. At common 
 law, the lex loci rei sitw governs as to real 
 estate, and the foreign probate has no va- 
 lidity; but as to personalty the law of the 
 domicil governs both as to testacy and intes- 
 tacy. It is customary, therefore, on a due 
 exemplification of the probate granted at the 
 place of domicil, to admit the will to pro- 
 Late, and issue letters testamentary, without 
 requiring original or further proof. 
 
 A foreign probate at the place of domicil 
 has in itself no force or effect beyond the ju- 
 risdiction in which it was granted, but on its 
 production fresh probate will be granted 
 thereon in all other jurisdictions where assets
 
 EXECUTORS AND ADMINISTRATORS 1130 EXECUTORS AND ADMINISTRATORS 
 
 are found. This is the general rule, but is 
 liable to be varied by statute, and is so varied 
 in some of the states of the United States. 
 
 Letters testamentary or of administration 
 confer no power beyond the limits of the 
 state in which they are granted, and do not 
 authorize the person to whom they are is- 
 sued to maintain any suit in the state or 
 federal courts in any other state; Johnson 
 v. Towers, 139 U. S. 156, 11 Snp. Ct. 525, 35 
 L. Ed. 112; Wilkins v. Ellett, 10S U. S. 256, 2 
 Sup. Ct 641, 27 L. Ed. 718 ; the executor or 
 administrator has therefore, as such, no right 
 of control over property in another state or 
 country; Mansfield v. Turpin, 32 <hi. 260; 
 Upton v. Adam's Ex'rs, 27 Ind. 4:;2 ; Wood 
 v. Gold, 4 McLean 577; Fed. Cas. No. 17,- 
 947; Lewis v. McMillen, 41 Barb. (N. Y.) 431; 
 Carmichael v. Ray, 40 N. C. 305; he cannot 
 interfere with assets, collect or discharge 
 debts, control lands, sue or be sued ; Schoul. 
 Ex & Ad. § 173. The principle is, that a 
 grant of power to administer the estate of a 
 decedent operates only as of right within the 
 jurisdiction which grants the letters, and in 
 order that a foreign representative may ex- 
 ercise any such function he must be clothed 
 with authority from the jurisdiction into 
 which he comes, and conform to the require- 
 ments imposed by local law ; Moore v. Fields, 
 42 Pa. 4G7; Beckham v. Wittkowski, 64 N. 
 C. 464 ; Trice v. Morris, 5 McLean, 4, Fed. 
 Cas. No. 11,414; Bell's Adm'r v. Nichols, 38 
 Ala. 678 ; Graveley v. Graveley, 25 S. C. 1, 60 
 Am. Rep. 478; Laurence v. Nelson, 143 U. S. 
 215, 12 Sup. Ct. 440, 36 L. Ed. 130 ; Duchesse 
 d'Auxy v. Porter, 41 Fed. 68; Reynolds v. 
 MeMulien, 55 Mich. 568, 22 N. W. 41, 54 Am. 
 Rep. 3S6. In most, probably all. of the states 
 there is statutory provision, either for the 
 grant of ancillary letters or for authorizing 
 and regulating suits by foreign executors and 
 administrators. In many of them these of- 
 ficers, properly qualified abroad, are permit- 
 ted to sue for and recover local assets with- 
 out other qualification, within the new ju- 
 risdiction, than putting on record their au- 
 thority as conferred by the home jurisdiction, 
 and such authority must be strictly followed. 
 In many of the states there is authority to 
 sue and defend without ancillary administra- 
 tion; Hayes v. Pratt, 147 U. S. 557, 13 Sup. 
 Ct 503, 37 L. Ed. 279; Banta v. Moore, 15 N. 
 J. Eq. 97 ; Marrett v. Babb'S ExT, 91 Ky. 88, 
 15 S. W. 4; Lewis v. Adams. 70 Cal. 403, 11 
 Pac. 833, 59 Am. Rep. 423; Tver v. Mclling 
 Co., 32 S. C. 59S, 10 S. E. 1067 ; and this right 
 to sue has been extended to a foreign corpo- 
 ration duly authorized to act in its own ju- 
 risdiction ; Deringer's Adm'r v. Deringer's 
 Adm'r, 5 Houst (Del.) 41G, 1 Am. St. Rep. 
 150; in some statutes there is express au- 
 thority to defend suits; Moss v. Rowland, 3 
 Bush (Ky.) 505; but it has been held that 
 statutory authority to sue does not imply 
 capacity to be sued; Jones v. Lamar, 77 Ga. 
 
 149 ; nor to sue for intestate lands where 
 they \\. ts in the hands 
 
 of a d oistrator; Fairchild v. 
 
 Hagel, 54 Ark. 61, 14 S. W. 1102; but I 
 for tic .1 administration; Gib- 
 
 son v. Ponder, I do suit is 
 
 iry a foreign executor or administra- 
 tor has been permitte l to i 
 properly and carry it away for the purp 
 administration; Petersen v. Bank, 32 N. Y. 
 21, 88 Am. : Putnam v. I 
 
 .Minn. 242, 47 N. W. 790, 11 L. R. A. 4 1 
 Namara v. McNamara, 62 6a - 
 Rusco, 46 Conn. 370; and in the i 
 local administration payment to 
 representative Is recognized; Wilkins . 
 lett, 108 U. S. 256, 2 Sup. Ct 641, 27 L. Ed 
 
 Wyman v. I la Mead, 109 D. S. < 
 Sup. Ct 117. U7 L. Ed. L068; Parsons ■ 
 man. 20 N. Y. 103. 
 
 The hitter may assign choses in action be- 
 longing to the estate, and the assignee may 
 sue thereon in his own name in another 
 unless prevented by its laws respecting a 
 ments from so doing; Wilkins v. Ellett 108 
 f. S. 256, 2 Sup. Ct 641, 27 L. Ed. 718; Camp- 
 bell v. Brown, 64 la. 425, 20 N. W. 745, 52 
 Am. Rep. 446; Solinsky v. Bank, 82 Tex. 244, 
 17 s. \v. 1050; Petersen v. Bank, 32 N. Y. 21. 
 88 Am. Dec. 298; he may also sue in 01 
 state on a judgment there recovered; Tal- 
 mage v. Chapel, 16 Mass. 71 ; Blddle v. Wil- 
 kins, 1 Pet. (U. s.) 686, 7 L. Ed 315; Trecoth- 
 ick v. Austin, 4 Mas. 16, Fed. Caa No. I L164 : 
 Barton v. Higgins, 41 Md. 539; or he may 
 sue in his individual capacity in another 
 state, on a judgment 1 by him in his 
 
 official capacity in his own state. Tittman v. 
 Thornton, 107 Md 500, 17 S. W. 979, 16 L. R. 
 A. 410: Arizona Cattle Co. v. Hul er. 4 Ariz. 
 69, 33 Pac. 555; and upon a contract made 
 with himself as such a foreign executor or 
 administrator may sue: Barrett v. Barrett. 
 S Greenl. (Me.) 346; lm Val v. Marshall. 30 
 Ark. 230; Sto. Confl. L. M 513 51& The 
 term foreign as applied to e.\c Qtors and ad- 
 ministrators refers to the jurisdiction from 
 which their authority is derived and not to 
 residence; Fugate v. Moore, s ''» Va. 1045, 11 
 
 s. B. 3, 19 Am st. Rep. 926; Hopper v. 
 
 r, L25 N. V. 400, 26 X. E. 457, 1- L. B. 
 A. 237. The estate of a deceased person is 
 substantially one estate, in which those en- 
 titled to the residue are interested as a whole, 
 
 even though situated In various jurisdictions, 
 
 and although each distinct part of it must be 
 settled in the jurisdiction by which letters 
 were granted whether for the purpose of an- 
 cillary or principal administration: Schoul. 
 Ex. & Ad. § 171: ordinarily it is the practice 
 to recognize the person appointed executor or 
 administrator at the domicil of the deceased 
 as the person to whom ancillary letters will 
 be granted; In re Blancan. 4 Redf. (X. Y) 
 151; Whart. Conti. L. § 60S; but there is no 
 privity between persons appointed in differ-
 
 EXECUTORS AND ADMINISTRATORS 1140 EXECUTORS AND ADMINISTRATORS 
 
 ent jurisdictions whether they be different or 
 the same, and the executor or administrator 
 in one state is not concluded in a subsequent 
 suit by the same plaintiff in another state 
 against a person having administration on 
 the estate of the deceased ; Johnson v. Pow- 
 ers, 139 U. S. 156, 11 Sup. Ct. 525, 35 L. Ed. 
 112 ; Braithwaite v. Harvey, 14 Mont. 208, 36 
 Pac. 38, 27 L. R. A. 101, 43 Am. St. Rep. 625 ; 
 Jones v. Jones, 39 S. C. 247, 17 S. E. 5S7, 802. 
 But a different rule has been applied where 
 different executors are appointed by the will 
 in different states, and tbey are held to be in 
 privity with each other, and a judgment 
 against those in one state is evidence against 
 those in another; Hill v. Tucker, 13 How. 
 (U. S.) 45S, 14 L. Ed. 223 ; Goodall v. Tucker, 
 . 13 How. (U. S.) 469, 14 L. Ed. 227. 
 
 When any surplus remains in the hands of 
 a foreign or ancillary appointee after the dis- 
 charge of all debts in that jurisdiction,. it is 
 usually, as a matter of comity, ordered to be 
 paid over to the domiciliary appointee ; 
 Wright v. Phillips, 56 Ala. 69; 50 L. J. Ch. 
 740; and in his hands becomes applicable to 
 debts, legacies, and expenses; Schoul. Ex. & 
 Ad. § 174. It is the policy of the law with 
 respect to these matters to encourage the 
 spirit of comity in subordination to the rights 
 of local creditors who are considered to be 
 entitled to the benefit of assets within their 
 own jurisdiction, rather than to be driven to 
 the assertion of their claims in a foreign 
 state or country; id.; but see Lex Fori. 
 
 As a general rule it is the duty of the prin- 
 cipal personal representative to collect and 
 make available to the estate all such assets 
 as are available to him consistently with for- 
 eign law ; 4 M. & W. 171 ; 1 Cr. & J. 157 ; even 
 to the extent of seeing that foreign letters 
 are taken out for the collection of foreign as- 
 sets; or of collecting and realizing upon 
 property and debts so far as it may be done 
 by him, without resort to a foreign jurisdic- 
 tion; Trecothick v. Austin, 4 Mas. 33, Fed. 
 Cas. No. 14,164 ; In re Butler, 38 N. Y. 397 ; 
 Merrill v. Ins. Co., 103 Mass. 245, 4 Am. Rep. 
 54S ; but the domestic representative is not 
 to be held in this respect to too onerous a 
 responsibility with respect to foreign prop- 
 erty which he cannot realize by virtue of his 
 appointment. See Sto. Confl. L. § 514 a; 
 Schoul. Ex. & Ad. § 175. It is the policy of 
 the courts to sustain, if possible, even irreg- 
 ular acts of executors or administrators 
 done in good faith and without detriment of 
 the estate; Duffy v. McHale (R. I.) 85 Atl. 36. 
 
 There is some difference of opinion as to 
 whether a voluntary surrender of assets to 
 the domiciliary representative protects the 
 debtor against claims made by virtue of an 
 administration within his own jurisdiction. 
 The United States supreme court, supported 
 by the current of American authority, main- 
 rains that, as between the states such pay- 
 ment or delivery of assets is sufficient to dis- 
 
 charge the local debtor in the absence of lo- 
 cal administration ; U. S. v. Cox, 18 How. 
 (U. S.) 104, 15 L. Ed. 299 ; Wilkins v. Ellett, 
 9 Wall. (U. S.) 740, 19 L. Ed. 5S6 ; Wilkins 
 v. Ellett, 108 U. S. 256, 2 Sup. Ct. 641, 27 L. 
 Ed. 71S; Hatchett v. Berney, 65 Ala. 39; 
 Ramsay v. Ramsay, 97 111. App. 270; In re 
 Williams' Estate, 130 la. 553, 107 N. W. 608 ; 
 Maas v. Bank, 176 N. Y. 377, 68 N. E. 65S, 98 
 Am. St. Rep. 6S9 ; Dexter v. Berge, 76 Minn. 
 216, 7S N. W. 1111; Gardiner v. Thorndike, 
 183 Mass. 82, 66 N. E. 633; Maas v. Bank, 
 176 N. Y. 377, 6S N. E. 658, 98 Am. St. Rep. 
 689 (where it was also held that failure to 
 inquire whether a resident administrator had 
 been appointed was negligence sufficient to 
 charge a bank making payment with the 
 knowledge which inquiry would have furnish- 
 ed). But, as a rule, the power of the execu- 
 tor or administrator is confined to the state 
 appointing ; In re Crawford's Estate, 68 Ohio 
 St. 58, 67 N. E. 156, 96 Am. St. Rep. 648. The 
 domiciliary administrator will sometimes be 
 recognized ex comitate by courts of another 
 state ; State v. Fulton (Tenn.) 49 S. W. 297. 
 The English doctrine is otherwise; Whart 
 Confl. L. 626 ; Sto. Confl. L. 515 a. See Dicey, 
 Confl. L. ch. X. (c), ch. XVII. (B), with 
 Moore's American notes. So, by agreement 
 of the parties, he was allowed to become a 
 party in his representative capacity; Ellis 
 v. Ins. Co., 100 Tenn. 177, 43 S. W. 766; 
 though it was held that he should not sue in 
 New York for the wrongful death of his in- 
 testate without taking out ancillary letters; 
 Dodge v. North Hudson, 188 Fed. 489. 
 
 Executors. An executor is, as above de- 
 fined, a person charged with the administra- 
 tion of the estate of one who leaves a will. 
 
 Lord Hardwicke, in 3 Atk. 301, says, "The proper 
 term in the civil law, as to goods, is hceres testa- 
 mentarius; and executor is a barbarous term, un- 
 known to that law." And again, "What we call 
 executor and residuary legatee is, in the civil law, 
 universal heir." Id. 300. 
 
 The word executor, taken in its broadest sense, 
 has three acceptations. 1. Executor a lege consti- 
 tutus. He is the ordinary of the diocese. 2. Execu- 
 tor ab episcopo constitutus or executor dativus; 
 and that is he who is called an administrator to an 
 intestate. 3. Executor a testatore constitutus, or 
 executor testamentarius J and that is he who is usu- 
 ally meant when the term executor is used. 1 Wms. 
 Ex. 185. See Ordinary. 
 
 The power of an executor under modern 
 probate law is derived not so much from the 
 will of the testator as from the appointment 
 of the court and the powers conferred upon it 
 by law; Lamb v. Helm, 56 Mo. 420. While 
 he is a trustee in the broadest sense, he is not 
 such in the general acceptation of the term ; 
 In re Hibbler, 78 N. J. Eq. 217, 78 Atl. 188, 
 affirmed In re Hibbler's Estate, 79 N. J. Eq. 
 230, 81 Atl. 1133. 
 
 If the executor be legally competent and 
 accepts the trust, it is the duty of the pro- 
 bate court to grant letters testamentary to 
 him ; Clark v. Patterson, 214 111. 533, 73 N. E. 
 806, 105 Am. St- Rep. 127, where it was said
 
 EXECUTORS AND ADMINISTRATORS 1141 EXECUTORS AND ADMINISTRATORS 
 
 that legally competent meant of legal age, 
 sound mind and memory and not convicted of 
 crime. 
 
 One should not be appointed an executor 
 pending a suit by him on a claim against the 
 estate; Cogswell v. Hall, 1S3 Mass. 575, 67 N. 
 B. 638. The renunciation of an executor may 
 be by oral statement in open court; In re 
 Baldwin's Will, 27 App. Div. 506, 50 N. Y. 
 Supp. S72. Where one declines the appoint- 
 ment and another person is appointed, the 
 former has no legal right thereafter; Briggs 
 v. Probate Court, 23 R. I. 125, 50 Atl. 335. 
 
 A general executor is one who is appointed 
 to administer the whole estate, without any 
 limit of time or place, or of the subject-mat- 
 ter. 
 
 A rightful executor is one lawfully appoint- 
 ed by the testator, by his will. Deriving bin 
 authority from the will, he may do most acts 
 before he obtains letters testamentary ; but 
 he must be possessed of them before he can 
 declare in an action brought by him as such ; 
 1 P. Wins. 70S ; Wms. Ex. 173. 
 
 An instituted executor is one who is ap- 
 pointed by the testator without any condition, 
 and who has the first right of acting when 
 there are substituted executors. 
 
 A substituted executor is a person appoint- 
 ed executor if another person who has been 
 appointed refuses to act. 
 
 An example will show the difference between an 
 instituted and a substituted executor. Suppose a 
 man makes his son his executor, but if he will not 
 act he appoints his brother, and if neither will act, 
 his cousin: here the son is the instituted executor 
 in the first degree, the brother is said to be substi- 
 tuted in the second degree, the cousin in the third 
 degree, and so on. See Swinb. Wills, pt. 4, s. 19, 
 pi. 1. 
 
 An executor de son tort is one who, with- 
 out lawful authority, undertakes to act as 
 executor of a person deceased. See E-xecutob 
 de son Tort. 
 
 A special executor is one who is appointed 
 or constituted to administer either a part of 
 the estate, or the whole for a limited time, or 
 only in a particular place. 
 
 An executor to the tenor is a person who 
 is not directly appointed by the .will an execu- 
 tor, but who is charged with the duties which 
 appertain to one: as, "I appoint A B to dis- 
 charge all lawful demands against my will ;" 
 3 Thill. Eccl. 116; 1 Eccl. 374; Swinb. Willa 
 247; Wentw. Ex. pt. 4, s. 4, p. 230; [1S92] 
 Prob. 227, 380; 66 Law T. N. S. 3S2. 
 
 Qualification. Generally speaking, all per- 
 sons who are capable of making wills, and 
 many others besides, may be executors; 2 
 Bla. Com. 503. The king may be an executor. 
 So may a corporation sole. So may a corpo- 
 ration aggregate; Toller, Exec. 30; Schoul. 
 Ex. & Ad. 32. So may an alien, if he be not 
 an alien enemy residing abroad or unlawfully 
 continuing in the country- See McGregor v. 
 McGregor, 3 Abb. Dec. (N. Y.) 92. So may 
 married women and infants ; and even in- 
 fants unborn, or en ventre sa mere, may be 
 
 executors ; 1 Dane, Abr. c. 29 a 2, § 3 ; Swift 
 v. Dullield, 5 S. .V P. (Pa.) 40. But in I 
 land an infant cannot act solely as executor t 
 until his full age of twenty-one years. Mean- 
 while, his guardian or some other person a 
 for lii ill as administrator cum test, an 
 Christopher v. Cox, li5 Miss. II ul. 
 
 Dom. ReL § 416; Administration, it w 
 held that a married woman cannot be execu- 
 trix without her husband's consent : App 
 of Stewart, 50 Me. 300; English's Ex'r v. Mc- 
 Xair's Adin'rs, 34 Ala. 40; and that a man 
 by marrying an executrix became executor in 
 her right, and was liable to account as such : 
 2 Atk. 212 ; Lindsay v. Lindsay's Adm'rs, 1 
 Des. (S. C.) 150. 
 
 Poisons attainted, outlaws, insolvents, and 
 persons of bad moral character may be quali- 
 fied as executors, because they act en au. 
 droit and it was the choice of the testator to 
 appoint them; 6 Q. B. 57; Berry v. Hamil- 
 ton, 12 B. Mon. (Ky.) 191, 54 Am. Dec. 515; 
 Sill v. McKnight, 7 \V. & S. (Pa.) 244; 3 
 Salk. 162. It is the duty of the court, when 
 a will has been proven, to grant letters b 
 tamentary to the person named in it upon 
 application, if he is not disqualified by stat- 
 ute; Holladay v. Holladay, 10 Or. 147, 19 
 Pac. SI. Poverty or insolvency is no ground 
 for refusing to qualify an executor; but an 
 insolvent executor may be compelled to give 
 security; Longberger's Estate, 148 Pa. 51 
 24 Atl. 120. In some states a bond is requir- 
 ed from executors, similar to or identical 
 with that required from administrators, The 
 testator may, by express direction, exempt 
 from the obligation of giving a bond with 
 sureties any trustees whom he appoints or 
 directs to be appointed, but not his executor, 
 unless permitted to do so by state statute ; 
 because the creditors of the estate must look 
 to the funds in the executor's hands. 
 
 Idiots and lunatics cannot be executors; 
 and an executor who becomes non 
 may be removed; 1 Salk. 36. In Massachu- 
 setts, when any executor shall become insane, 
 or otherwise incapable of discharging his 
 trust, or evidently unsuitable therefor, the 
 judge of probate may remove him ; Thayer v. 
 Homer, 11 Mete. (Mass.) 104. A drunkard 
 may perform the office of executor; Berry v. 
 Hamilton, 12 B. Monr. (Ky.) 191, 54 Am. 1' 
 515; Sill v. McKnight, 7 W. & S. (Pa.) 244; 
 but in some states, as Massachusetts and 
 Pennsylvania, there are statutes providing 
 for his removal. 
 
 Appointuunt. Executors can be appoin: 
 only by will or codicil; but the word "exe a 
 tor" need not be used, lie may he appointed 
 and designated, by committing to his charf 
 those duties which it is the province of an 
 executor to perform ; 3 Thill. Eccl. 118 ; My- 
 ers v. Daviess, 10 B. Monr. 394; Ex parte 
 McDonnell, 2 Bradf. Surr. (X. Y.) 32; State 
 v. Watson, - Speers (S. *'.> 97; Carpenter v. 
 Cameron, 7 Watts (Pa.) 51. Even a direction
 
 EXECUTORS AND ADMINISTRATORS 1142 EXECUTORS AND ADMINISTRATORS 
 
 to keep accounts will, in the absence of any 
 thing to the contrary, constitute the person 
 addressed an executor. A testator may pro- 
 ject his power of appointment into the fu- 
 ture and exercise it after death through an 
 agent pointed out by name or by his office; 
 Bishop v. Bishop, 56 Conn. 208, 14 Atl. SOS. 
 
 The appointment of an executor may be 
 absolute, qualified, or conditional. It is abso- 
 lute when he is constituted certainly, imme- 
 diately, and without, any restriction in re- 
 gard to the testator's effects or limitation in 
 point of time; Toller, Ex. 36. It may be 
 qualified as to the time or place wherein, or 
 the subject-matters whereon, the office is to 
 be exercised ; 1 Will. Ex. 204. Thus, a man 
 may be appointed executor, and his term 
 made to begin or end with the marriage of 
 testator's daughter ; or his authority may be 
 limited to the state: or to one class of prop- 
 erty, as if A be made executor of goods and 
 chattels in possession, and B of clwses in ac- 
 tion ; Swinb. Wills, pt. 4, s. 17, pi. 4 ; 3 Phill. 
 Eccl. 424. Still, as to creditors, three limit- 
 ed executors all act as one executor, and 
 may be sued as one ; Cro. Car. 293. Finally, 
 an executor, may be appointed conditionally, 
 and the condition may be precedent or sub- 
 sequent. Such is the case when A is ap- 
 pointed in case B shall resign. Godolphin, 
 Orph. Leg. pt. 2, c. 2, § 1. As to appointment, 
 see Manning v. Leighton, 65 Vt. 84, 26 Atl. 
 258, 24 L. R. A. 6S4 ; 39 Sol. J. 228, 244. 
 
 Removal. An executor who fails to keep 
 proper accounts or to render any account for 
 a long period, who retains the trust funds 
 mixed with his own and who makes improp- 
 er investments, should be dismissed ; Simon's 
 Estate, 155 Pa. 215, 26 Atl. 424 ; but failure to 
 account is not compulsory ground of remov- 
 al ; Cosby v. Weaver, 107 Ga. 761, 33 S. E. 
 656; and the mere delay of an executor to 
 convert real estate into personalty when the 
 same has increased in value, is not such mis- 
 conduct as to warrant his removal ; Wilcox 
 v. Quinby, 65 Hun 621, 20 N. Y. Supp. 5. He 
 may be removed, however, where he has any 
 conflicting personal interest ; Putney v. 
 Fletcher, 148 Mass. 247, 19 N. E. 370. 
 
 Assignment. An executor cannot assign 
 his office. In England, if he dies having 
 proved the will, his own executor becomes 
 also the original testator's executor. But if 
 he dies intestate, an administrator de bonis 
 non of the first testator succeeds to the ex- 
 ecutorship. And an administrator de bonis 
 non succeeds to the executorship in both these 
 events, in the United States generally, wher- 
 ever a trust is annexed to the office of execu- 
 tor; Hendren v. Colgin, 4 Munf. (Va.) 231; 
 Patterson v. High, 43 N. C. 52; Vance v. 
 Vance, 17 Me. 204 ; In re Van Wyck, 1 Barb. 
 Ch. (N. Y.) 565; Lett v. Meacham, 4 Fla. 
 144. 
 
 Acceptance. The appointee may accept or 
 refuse the office of executor; 3 Phill. Eccl. 
 
 577 ; Stebbins v. Lathrop, 4 Pick. (Mass.) 33 ; 
 Williams v. Cushing, 34 Me. 370 ; Leavitt v. 
 Leavitt, 65 N. H. 102, IS Atl. 920. His ac- 
 ceptance may be implied by acts of authority 
 over the property which evince a purpose of 
 accepting, and by any acts which would make 
 him an executor de son tort, which see. So 
 his refusal may be inferred from his keeping 
 aloof from all management of the estate ; 
 Van Home v. Fonda, 5 Johns. Ch. (N. Y.) 388 ; 
 Ayres v. Weed, 16 Conn. 291 ; Marr v. Peay, 
 6 N. C. 85, 5 Am. Dec. 521 ; Ralston's Estate, 
 158 Pa. 645, 28 Atl. 139. But he cannot be 
 compelled to accept and qualify or renounce 
 in some formal manner ; Cable v. Cable, 76 
 la. 163, 40 N. W. 700. If one of two or more 
 appointees accepts, and- the other declines 
 or dies, or becomes insane, he becomes sole 
 executor; Croft v. Steele, 6 Watts (Pa.) 373. 
 An administrator de bonis non cannot be join- 
 ed with an executor. 
 
 Acts before probate. The will itself is the 
 sole source of an executor's title. Probate is 
 the evidence of that title. See Wolfe v. Un- 
 derwood, 97 Ala. 375, 12 South. 234 ; Clapp v. 
 Stoughton, 10 Pick. (Mass.) 463; Shirley v. 
 Healds, 34 N. H. 407. Before probate, an 
 executor may do nearly all the acts which he 
 can do after. He can receive payments, dis- 
 charge debts, collect and recover assets, sell 
 bank-stock, give or receive notice of dishonor, 
 initiate or maintain proceedings in bank- 
 ruptcy, sell or give away goods and chattels, 
 and pay legacies. And when he has acted 
 before probate he may be sued before pro- 
 bate ; 6 Term 295 ; Rand v. Hubbard, 4 Mete. 
 (Mass.) 252. He may commence, but he can- 
 not maintain, suits before probate, except 
 such suits as are founded on his actual pos- 
 session ; 3 C. & P. 123 ; Hutchins v. Adams, 
 3 Greenl. (Me.) 174 ; Strong v. Perkins, 3 N. 
 H. 517; 2 Atk. 285. So in some states he 
 cannot sell land without letters testamenta- 
 ry ; Kerr v. Moon, 9 Wheat. (U. S.) 565, 6 L. 
 Ed. 161; or transfer a mortgage; Cutter v. 
 Davenport, 1 Pick. (Mass.) 81, 11 Am. Dec. 
 149 ; or remain in his own state and sue by 
 attorney elsewhere; Hutchins v. Bank, 12 
 Mete. (Mass.) 423 ; or indorse a note so as to 
 be sued, in some states; Stearns v. Burn- 
 ham, 5 Greenl. (Me.) 261, 17 Am. Dec. 228; 
 Thompson v. Wilson, 2 N. H. 291. And see 
 Harper v. Butler, 2 Pet. (U. S.) 239, 7 D. Ed 
 410; Byles, Bills 40; Story, Pr. Notes 304 ; 
 Story, Bills 250; Horn v. Johnson, 87 Ga. 
 448, 13 S. E. 633. 
 
 Co-executors. Co-executors are regarded 
 in law as one individual ; and hence, in gen- 
 eral, the acts of one are the acts of all ; Com. 
 Dig. Administration (B, 12) ; Gates v. Whet- 
 stone, 8 S. C. 244, 28 Am. Rep. 284; Arm- 
 strong v. O'Brien, 83 Tex. 635, 19 S. W. 268 ; 
 Viele v. Keeler, 129 N. Y. 190, 29 N. E. 78. 
 Hence the assent of one executor to a legacj 
 is sufficient, and the sale or gift of one is the 
 sale or gift of all. So a payment by or to
 
 EXECUTORS AND ADMINISTRATORS 1143 EXECUTORS AND ADMINISTRATORS 
 
 one is a payment by or to all ; Herald v. Har- 
 per, 8 Blackf. (Ind.) 170; Hoke's Ex'rs v. 
 Fleming, 32 N. C. 263 ; Adair v. Brimmer, 74 
 N. Y. 539 ; a release by one binds all ; Dev- 
 ling v. Little, 26 Pa. 502. But each is liable 
 only for tbe assets whicb bave come into bis 
 own bands; Douglass v. Satterlee, 11 Jobus. 
 (N. Y.) 21. So be alone wbo is guilty of tort 
 or negligence is answerable for it, unless bis 
 co-executor has connived at tbe act or helped 
 him commit it; Estate of Sanderson, 74 Cal 
 199, 15 Pac. 753. An executor is not liable 
 for a devastavit of his co-executor ; Ander- 
 son v. Earle, 9 S. C. 460. A power to sell 
 land, conferred by will upon several execu- 
 tors, must be executed by all wbo proved tbe 
 will ; Wasson v. King, 19 N. C. 262. But if 
 only one executor consents to act, his sale 
 under a power in the will would be good, and 
 such refusal of the others may be in pais; 
 Cro. Eliz. SO; Ross v. Clore, 3 Dana (Ky.) 
 195; Herrick v. Carpenter, 92 Mich. 440, 52 
 N. W. 747. If the will gives no direction to 
 the executors to sell, but leaves the sale to 
 the discretion of the executors, all must join. 
 But see less strict rules in Miller v. Meetch, 
 8 Pa. 417; Meakings v. Cromwell, 2 Sandf. 
 (N. Y.) 512; Taylor v. Morris, 1 N. Y. 341. 
 Where all the executors must unite to make 
 a valid conveyance, no valid contract to con- 
 vey can be made by a part of them ; Crowley 
 v. Hicks, 72 Wis. 539, 40 N. W. 151. One 
 executor cannot bind his co-executors by a 
 confession of judgment without their con- 
 sent; Karl v. Black's Ex'rs, 2 Pittsb. (Pa.) 
 19. On the death of one or more of several 
 joint executors, their rights and powers sur- 
 vive to tbe survivor ; Bac. Abr. Executor (D) ; 
 Shepp. Touchst. 4S4. 
 
 Administrator. The appointment of an 
 administrator is required in the case of one 
 wbo dies intestate. 
 
 The appointment of the administrator must 
 be lawfully made with his consent, and by an 
 officer having jurisdiction. If an improper 
 administrator be appointed, his acts are not 
 void ah initio, but are good, usually, until his 
 power is rescinded by authority. But they 
 are void if a will had been made, and a com- 
 petent executor appointed under it; Griffith 
 v. Frazier, 8 Cra. (U. S.) 23, 3 L. Ed. 471; 1 
 Dane, Abr. 556-561 ; Beers v. Shannon, 73 
 N. Y. 292. But, in general, anybody may be 
 administrator wbo can make a contract. An 
 infant cannot; McGooch v. McCooch. 4 Mass. 
 348; a feme covert may at common law with 
 her husband's permission; 4 Bac. Abr. 67; 
 In re Gyger's Estate, 65 Pa. 311; English's 
 Ex'r v. McNair's Adm'rs, 34 Ala. 40. Im- 
 provident persons, drunkards, gamblers, and 
 the like are in some states disqualified by 
 statute; McMahon v. Harrison, 6 N. V. 1 1".. 
 
 Failure to apply for administration within 
 the time prescribed is a waiver by the party 
 entitled to it under the statute: In re 
 Sprague's Estate, 12.") Mich. 357, 84 X. W. 
 293; and the right of a creditor to be ap- 
 
 pointed administrator as "particular 
 itor" is waived by his Bigning a petition fur 
 the appointment of another person; In re 
 Sullivan's Estate. 25 Wash. 43 
 
 The formalities and requisite id to 
 
 valid appointments and rubs, as to □ 
 defective proceedings, etc., are widely vari- 
 ous in the different states, if letters appear 
 to have been unduly granted, or to an un- 
 faithful person, they will be revoked; 
 v. Dial, 12 Tex. 100; Jeroms v. J 
 Barb. <x. Y.) 24; Marcy v. Marc; 
 (Mass.) 370; as they may be where it ap 
 that the estate has been wasted "t misman- 
 aged; Taylor v. Taylor, 154 111. App. - 
 The personal property of a decedent I 
 propriated to the payment of his debts, so far 
 as required, and must be first resorted to by 
 creditors. Ami. by statutes, courts may grant 
 an administrator power to sell, lease, or mort- 
 gage land, when the personal estate of the 
 deceased is not sullicient to pay his debts; 
 Ferguson v. Broome, 1 Bradf. (N. Y.) 10; 
 Farrington v. King, 1 Bradf. (N. Y.i 182; Ren- 
 wick v. Renwick, 1 Bradf. (N. Y.i L'.:i ; Mathe- 
 son's Heirs v. Ilearin. L".i Ala. 210; In : 
 tate of Godfrey, 4 Mich. 308; Weed v. Ed- 
 monds, 4 Ind. 46S ; McCoy v. Morrow, 18 111. 
 519, 68 Am. Dec. 57S. The court may direct 
 lands to be sold in order to pay taxes levied 
 against decedent's property; Sales v. I 
 grove (Ky.) 25 S. W. 594. 
 
 Persons holding certain relations to the in- 
 testate are considered as entitled to an ap- 
 pointment to administer the estate in estab- 
 lished order of precedence ; Bradley v. Brad- 
 ley, 3 Redf. (N. Y.i 512. 
 
 Order of appointment. — First in ordi 
 appointment. — The husband has his wife's 
 personal property, and takes out administra- 
 tion upon her estate. But in some states it 
 is not granted to him unless he is to receive 
 the property eventually. So the widow can 
 ordinarily claim sole administration, though 
 in the discretion of the judge it may 
 fused her. or she may be joined with anoth- 
 er; 2 Bla. Com. 504; Stearns v. Flake, is 
 Pick. (Mass.) 26; Edelen v. Edeh-n. 10 Md. 
 52; Jones v. Bitter's Adm'r, 56 Ala. '_'7o : 
 ScanloiYs Estate, 2 Pa. Dist B. 742. The 
 widow is entitled p> preference though she 
 was not Living with her husband at the time; 
 Ross' Estate, n Pa. Co. «'t. R. 601. 
 
 ,/</ in order of appointment are the 
 next of kin. Kinship is usually computed by 
 the civil law rule. The English order, which 
 is adopted in some states, is. first, husband 
 or wife: second, sons or daughters; third, 
 grandsons or granddaughters; fourth, great- 
 grandsons or great-granddaughters; fifth, 
 father or mother; sixth, brothers or sisters; 
 h, grandparents; eighth, uncles, aunts, 
 nephews, nieces, etc.; 1 P. Will. 41; L' Add. 
 Eccl. 352; Succession of Sloane, 12 La. Ann. 
 610; - Kent 514; Davis v. Swearingen, 56 
 Ala. 539. 
 
 In New York the order is, the widow; the
 
 EXECUTORS AND ADMINISTRATORS H44 EXECUTORS AND ADMINISTRATORS 
 
 children; the father; the brothers; the sis- 
 ters ; the grandchildren ; any distributee be- 
 ing next of kin ; McCosker v. Golden, 1 
 Bradf. (N. Y.) 64; Peters v. Public Adin'r, 
 1 Bradf. (N. Y.) 200; In re Com'rs of Emi- 
 gration," 1 Bradf. (N. Y.) 259. 
 
 When two or three are in the same degree, 
 the probate judge may decide between them ; 
 and in England he is usually guided by the 
 wishes of the majority of those interested. 
 This discretion, however, is controlled by cer- 
 tain rules of priority as to persons of equal 
 grades, which custom or statute has made. 
 Males are generally preferred to females, 
 though from no superior right. Elder sons 
 are preferred to younger, usually, and even 
 when no doctrine of primogeniture subsists. 
 So solvent persons to insolvent, though the 
 latter may administer. So business men to 
 others. So unmarried to married women. 
 So relations of the whole blood to those of 
 the half blood. So distributees to all other 
 kinsmen. As between kindred of equal de- 
 gree a son will be preferred to a daughter ; 
 In re Hill's Estate, 55 N. J. Eq. 764, 37 Atl. 
 952 ; and although generally men of the same 
 degree are preferred to women, a niece is 
 preferred to a grand-nephew, being one de- 
 gree nearer ; In re Hawley's Estate, 37 Misc. 
 667, 76 N. Y. Supp. 461. The next of kin hav- 
 ing the right of administration and not de- 
 siring to exercise it may nominate another in 
 his stead, who shall be nominated if fit and 
 suitable under the same rules which would 
 be applied to the next of kin himself; In re 
 Wooten's Estate, 114 Tenn. 289, 85 S. W. 
 1105 ; a non-resident may be an administra- 
 tor; Fulgham v. Fulgham, 119 Ala. 403, 24 
 South. 851 ; Jones v. Smith, 120 Ga. 642, 48 
 S. E. 134. 
 
 The appointment in all cases is voidable 
 when the court did not give a chance to all 
 parties to come in and claim it. 
 
 Third in order of appointment. — Creditors 
 (and, ordinarily, first the largest one) have 
 the next right; 67 Law T. (N. S.) 503. A 
 creditor has no right of administration if 
 there are next of kin ; In re Barr's Estate, 38 
 Misc. 355, 77 N. Y. Supp. 935 ; but if there 
 be no widow and next of kin, a creditor is 
 entitled to administration ; Stebbins v. Palm- 
 er, 1 Pick. (Mass.) 71, 11 Am. Dec. 146. To 
 prevent fraud, a creditor may be appointed 
 when the appointee of tbe two preceding class- 
 es does not act within a reasonable time. A 
 creditor may make oath of his account to 
 prove his debt, but no rule establishes the 
 size of the debt necessary to be proved before 
 appointment ; Arnold v. Sabin, 1 Cush. 
 (Mass.) 525. After creditors, any suitable 
 person may be appointed. Generally, consuls 
 administer for deceased aliens ; and this is 
 sometimes provided by treaties, which see. 
 
 Where all the persons applying for appoint- 
 ment are equally qualified, and competent, 
 the court must appoint the one having a prior 
 
 right under the statute, and it has no discre- 
 tion ; In re Nickals, 21 Nev. 462, 34 Pac. 250. 
 
 Co-administrators, in general, must be join- 
 ed in suing and in being sued; but, like ex- 
 ecutors, the acts of each, in the delivery, gift, 
 sale, payment, possession, or release of the 
 intestate's goods, are the acts of all, for they 
 have joint power ; Bac. Abr. Exec. C. 4 ; Com. 
 Dig. Administration (B, 12) ; 1 Dane, Abr. 
 3S3; Saunders' Heirs v. Saunders' Ex'rs, 2 
 Litt. (Ky.) 315; Turner's Ex'rs v. Wilkins, 
 56 Ala. 173. If one is removed by death, or 
 otherwise, the whole authority is vested in 
 the survivor ; Lewis' Ex'rs v. Brooks, 6 Yerg. 
 (Tenn.) 167; Treadwell v. Cordis, 5 Gray 
 (Mass.) 341 ; Shippen's Heirs v. Clapp, 29 Pa. 
 265. Each is liable only for the assets which 
 have come into his hands, and is not liable 
 for the torts of others except when guilty of 
 negligence or connivance ; 2 Ves. 267 ; Ap- 
 peal of Jones, 8 Watts & S. (Pa.) 143, 42 Am. 
 Dec. 282 ; Hall v. Carter, 8 Ga. 388 ; Smith's 
 Ex'rs v. Chapman's Ex'r, 5 Conn. 19; Ap- 
 peal of Hengst, 24 Pa. 413; Boudereau v. 
 Montgomery, 4 Wash. C. C. 186, Fed. Cas. No. 
 1.694 ; Banks v. Wilkes, 3 Sandf. Ch. (N. Y.) 
 99 ; Atcheson v. Robertson, 3 Rich. Eq. (S. 
 C.) 132, 55 Am. Dec. 634. 
 
 A note payable to two administrators for 
 a debt due the estate may be transferred by 
 the endorsement of one ; Mackay v. St. Mary's 
 Church, 15 R. I. 121, 23 Atl. 108, 2 Am. St. 
 Rep. 881 ; a surviving administrator has full 
 power to act alone; Saul v. Frame, 3 Tex. 
 Civ. App. 596, 22 S. W. 984. 
 
 Powers and Duties of an Executor or 
 Administrator. The duty of an administra- 
 tor is in general to do the things set forth in 
 his bond ; and for this he is generally oblig- 
 ed to give security ; Baldwin v. Buford, 4 
 Yerg. (Tenn.) 20; Colwell v. Alger, 5 Gray 
 (Mass.) 67. 
 
 The duties of an executor are the same, so 
 far as concerns the collection of the assets 
 and up to the point at which the estate is 
 ready for distribution. It is then to be dis- 
 posed of, if an administrator, according to 
 law, and if an executor, pursuant to the will. 
 See infra. 
 
 An executor or administrator, coming into 
 possession of property by virtue of his posi- 
 tion, is estopped, while in possession, from 
 disputing the title of his intestate or testa- 
 tor ; Wiseman v. Swain (Tex.) 114 S. W. 145. 
 
 Duties. They may be thus summarized. 
 Those of an executor and administrator are 
 alike except so far as those of the former 
 spring from the will. 
 
 First. He must be responsible for the bur- 
 ial of the deceased in a manner suitable to 
 the estate; 2 Bla. Com. 508. But no unrea- 
 sonable expenses will be allowed, nor any 
 unnecessary expenses if there is any danger 
 of the estate proving insolvent; 2 C. & P. 
 207; Barclay's Estate, 2 W. N. C. (Pa.) 447; 
 Succession of Hearing, 28 La. Ann. 149 ; Pat-
 
 EXECUTORS AND ADMINISTRATORS 1145 EXECUTORS AND ADMINISTRATORS 
 
 terson v. Patterson, 59 N. Y. 582, 17 Am. 
 Rep. 384. The estate and not the widow is 
 liable for funeral expenses ; Compton v. 
 Lancaster (Ky.) 114 S. YV. 260; but she may 
 ■order the interment on a scale proportionate 
 to the financial condition of the do 
 and the estate will be liable ; Wagoner Un- 
 dertaking Co. v. Joner, 134 Mo. App. 101, 114 
 S. W. 1049. See Funeral Expenses. 
 
 Second. The executor must prove the will, 
 and take out letters testamentary, and an 
 administrator must procure his letters of 
 administration; see supra. In England, 
 there are two ways of proving a will, — in 
 common form, and in form of hue, or solemn 
 form. In the former, the executor propounds 
 the will, — i. c. presents it to the registrar, in 
 the absence of all other interested parties. 
 In the latter, all parties interested are sum- 
 moned to show cause why probate should 
 not be granted. 
 
 Third. Ordinarily, he must make an in- 
 ventory of personal property at least, and, 
 in some states, of real estate also; Griswold 
 v. Chandler, 5 N. H. 492; Freeman v. Ander- 
 son, 11 Mass. 190; Bourne v. Stevenson, 58 
 Me. 490; Pursel v. Pursel, 14 N. J. Eq. 514. 
 This duty rests on executors and not on 
 adult legatees; Mills v. Smith, G5 Hun 619, 
 19 N. Y. Supp. 854. 
 
 Fourth. lie must give notice of his ap- 
 pointment in the statute form, and should 
 advertise for debts and credits ; Gilbert's 
 Adm'r v. Little's Adm'r, 2 Ohio St. 15G ; but 
 the giving or not giving it does not affect 
 the statute of limitations, nor does the fail- 
 ure to publish, affect a creditor who did not 
 present his claim ; McMillan v. Hayward, 94 
 Cal. 35T, 29 Pac. 774. 
 
 Fifth. He must collect the goods and chat- 
 tels, and the claims inventoried, with reason- 
 able diligence. And he is liable for a loss 
 by the insolvency of a debtor, if it results 
 from his gross delay; Long's Estate, 6 Watts 
 (Pa.) 46; Dean v. Rathbone's Adm'r, 15 Ala. 
 328. 
 
 Sixth. The personal effects he must deal 
 with as the will directs, and the surplus 
 must be turned into money anil divided as if 
 there were no -will. The safest method of 
 sale is a public auction. 
 
 Seventh. Pie must collect the outstanding 
 claims and convert property into money; 2 
 Kent 415; Bailey v. Dilworth, 10 Smedes & 
 M. i Miss.) 404, 48 Am. Dec. 760; 1 Mylne & 
 C. 8; Evans v. Iglehart, 6 Gill & J. (Md.) 
 171; Bogart v. Van Velsor. 4 Fdw. Oh. (N. 
 Y.) 718; .Moore v. Hamilton. 4 Fla. 112; 
 Smyth v. Funis' Adin'rs. 25 Miss. 422; Wey- 
 er v. Bank, .".7 Ind. 198; Roumforl v. M<-Alar- 
 ney, 82 Pa. 193; but he cannot occupy or 
 lease the lands of the estate, or receive 
 rents or profits therefrom, as these descend 
 to the heir; Estate of Merkel, 131 Pa. 584, 
 18 Atl. 931. 
 
 Eighth. He must keep the money of the 
 estate safely, but not mixed with his own, 
 
 or he may be charged interest on it. He is 
 also charged when he has mi 
 funds or let them lie idle, provided a want 
 of ordinary prudence is proved against him; 
 Hammond v. Hammond, u Bland, «'h. (Md.) 
 306; Sullivan v. Winthrop, 1 Sunm. 11. Fed. 
 ('as. No. L3,6» 0; 11 
 
 tees, 2 Rand. <Va. 14 v. Park. 19 X. 
 
 J. L 109; Darrell i 
 211, 4 Am. Dec. 613; Appeal of Ma.. 
 33 Pa. 258; In re Myers. 131 N. V. 1 
 X. F. 135. When a debtor is ap] 
 editor of the creditor's will, equity will pre- 
 sume that the debt has been paid, ami will 
 treat it as an asset in the executor's b 
 ('row v. Conant, '•'»> Mich. 247, 51 X. w. 450, 
 30 Am. St Rep. 427. And generally. Info 
 is to be charged on all money re 
 an executor and not applied to the U 
 itate; McOaw v. Blewitt, Bailey, 
 is. c. i 98; Arnetl v. Finney, 16 X. C. ::''.'■': 
 Thompson v. Sanders' Heirs, g j. j. >; 
 (Ky.) PI: Floyd's Estate, 82 Pa. 143 
 Good's Estate, 150 Pa. 801, 24 Atl. 624 But 
 an executor cannot lie charged with i:. 
 on money allowed him for commission ; Brin- 
 ton's Fstate, in Pa. 408; he is not charge- 
 able with compound interest ; Appeal of 
 Fight. 21 Fa. 180. Where investments have 
 been made contrary to the requirements 
 of the will, on personal security, they a 
 the executor's risk, and he must answer per- 
 sonally for any loss; Frewster v. Den. 
 48 N. J. Eq. 559, 23 Atl. 271. See Im 
 Investments. 
 
 Ninth. He must be at all times ready to 
 account to the proper authorities, and must 
 actually file an account at the end of the 
 year generally prescribed by statute. The 
 burden of proving items of a discharge in an 
 accounting is upon the accountant; Brewster 
 oarest, 48 X. J. Eq. 559, 2:; Atl. 271. 
 
 Tenth. He must pay the debts and legacies 
 in the order required by law. There is no 
 universal order of payment adopted in the 
 United States; but debts of the la 
 and the funeral are preferred debts e 
 where; Bacon, Abr. Ex. P. -: 2 Kent 416; 
 Fawson's Adm'rs v. Hansborough, 10 B. Monr. 
 ( Ky. 1 117; Move v. Albritton. 42 X. ( '. 62; 
 Burruss v. Fisher, •j:; Miss. 228; Johnston v. 
 Morrow, 28 N. J. Eq. 327; Chapman v. 
 Barnes, 2:t ill. App. 184. 
 
 Next to these, as a general ride, debts due 
 the state or the United States are pri. . 
 This priority of the United States only ex- 
 tends to the net pro the property of 
 the deceased, and therefore the 
 expenses of the administration are first paid. 
 The art of burial and its accompaniments 
 may he done hy third parties, who have a 
 preferred claim therefor, if reasonable; 3 
 Nev. A: M. oi-; s a,i. \ 1 :. 348; U. S. 
 gleston,4 Sawy. 199, Fed. Caa No, 15,027. a 
 claim for costs recovered by a creditor in 
 an action to establish bis claim is entitled 
 to priority over the debts of the estate; In
 
 EXECUTORS AND ADMINISTRATORS 1146 EXECUTORS AND ADMINISTRATORS 
 
 re Randell's Estate, 8 N. Y. Supp. 652. If 
 the administrator pays debts of a lower de- 
 gree first, he will be liable out of his own es- 
 tate in ease of a deficiency of assets ; 2 Kent 
 419. If he pays decedent's debts from his 
 own funds he is entitled to repayment from 
 the proceeds of lands originally liable for 
 such debt; Doty v. Cox (Ivy.) 22 S. W. 321. 
 
 A valid claim against an estate cannot be 
 defeated on the ground that the estate had 
 been settled before the claim was filed ; Ury 
 v. Bush, 85 la. 698, 52 N. W. 666. 
 
 Poioers. The authority of the executor or 
 administrator dates from the moment of 
 death; Com. Dig. Administration (B, 10) ; 
 2 W. Bla. 692 ; 10 Ad. & El. 212. When once 
 probate is granted, his acts are good until 
 formally reversed by the court; 3 Term 125; 
 Appeal of Peebles, 15 S. & R. (Pa.) 39. In 
 some states he has power over both real and 
 personal estate; Goodwin v. Jones, 3 Mass. 
 514, 3 Am. Dec. 173; Stearns v. Stearns, 1 
 Pick. (Mass.) 157. In the majority, he has 
 power over the real estate only when ex- 
 pressly empowered by the will, or when the 
 personal estate is insufficient ; see infra. 
 
 His power is that of a mere trustee, who 
 must apply the goods for such purposes as 
 are sanctioned by law ; 4 Term 645 ; 9 Co. 
 88; Co. 2d Inst. 236; Warfield v. Brand's 
 Adm'r, 13 Bush (Ky.) 77; Ferris v. Van 
 Vechten, 9 Hun (N. Y.) 12. The personal 
 representative has the legal title to the 
 choses in action of the deceased, and may 
 transfer, discharge, or compound them as if 
 he were the absolute owner; Curry v. Pee- 
 bles, 83 Ala. 225, 3 South. 622 ; Kahl v. Schob- 
 er, 35 N. J. Eq. 461 ; and having at common 
 law absolute power of disposal of the per- 
 sonal effects, he may compromise any claim ; 
 Olston v. R. Co., 52 Or. 343, 96 Pac. 1095, 
 97 Pac. 538, 20 L. R. A. (N. S.) 915. But 
 where an executor pledged goods belonging 
 to an estate, not holding himself out to act 
 as executor, and the pledgee having no no- 
 tice that he was such, no title passed and the 
 pledgee was required to surrender the goods; 
 [1912] 1 Ch. 451. 
 
 In order that he may be enabled to reduce 
 them to possession the executor or admin- 
 istrator acquires a property in the assets of 
 the intestate. As to what constitutes assets, 
 see Assets, and for a definition of "asset," 
 within the administration laws, see Louis- 
 ville & N. R. Co. v. Herb, 125 Tenn. 408, 143 
 S. W. 1138. 
 
 His right is not a personal one, but an in- 
 cident to his office; Weeks v. Gibbs, 9 Mass. 
 74; Dawes v. Boylston, 9 Mass. 352, 6 Am. 
 Dec. 72 ; Hillman v. Stephens, 16 N. Y. 278. 
 He owns all his intestate's personal proper- 
 ty from the day of death, and for any cause 
 of action accruing after that day may sue 
 in his own name; Patchen v. Wilson, 4 Hill 
 (N. Y.) 57; Manwell v. Briggs, 17 Vt. 176; 
 Cullen v. O'Hara, 4 Mich. 132; Bates v. 
 Sabin, 64 Vt. 511, 24 Atl. 1013. This hap- 
 
 pens by relation to the day of death ; Hutch- 
 ins v. Bank, 12 Mete. (Mass.) 425; 7 Jur. 
 492; Shirley v. Healds, 34 N. H. 407. An 
 administrator is a trustee, who holds the le- 
 gal property but not the equitable. If he is 
 a debtor to the estate, and denies the debt, 
 he may be removed ; but if he inventories 
 it, it is cancelled by the giving of his bond ; 
 Stevens v. Gaylord, 11 Mass. 268. 
 
 He may declare, whenever the money 
 when received will be assets ; and he may 
 sue on a judgment once obtained, as if the 
 debt were his own. He may summon sup- 
 posed debtors or holders of his intestate's 
 property to account, and has the right to an 
 investigation in equity. He may bind the 
 estate by arbitration ; Kendall v. Bates, 35 
 Me. 357 ; Appeal of Peters, 38 Pa. 239. He 
 may assign notes, etc. See Ladd v. Wiggin, 
 35 N. H. 421, 69 Am. Dec. 551; Griswold v. 
 Clark, 28 Vt. 661; Miller v. Henderson, 10 
 N. J. Eq. 320; Patterson v. Edwards, 29 
 Miss. 70; Thomas v. Reister, 3 Ind. 369; 
 Walker v. Craig, 18 111. 116; Shoenberger's 
 Ex'rs v. Sav. Inst, 28 Pa. 459; Morris' Ex'r 
 v. Duke's Adm'r, 2 Patt. & H. (Va.) 462. 
 Nearly all debts and actions survive to the 
 administrator. But he has no power over 
 the firm's assets, as to which his intestate 
 was a partner, until the debts are paid; 
 Thomson v. Thomson, 1 Bradf. (N. Y.) 24; 
 he should merely refer in his inventory to 
 the intestate's interest in the partnership 
 without attempting to give the items of 
 property, as he can have no control over it 
 until the affairs of the partnership are set- 
 tled; Loomis v. Armstrong, 63 Mich. 355, 29 
 N. W. 867. 
 
 At common law the executor or adminis- 
 trator has no power over real estate; Ryder 
 v. Lyon, 85 Conn. 245, 82 Atl. 573 ; Wilson v. 
 Hamilton, 9 S. & R. (Pa.) 431; Livingston 
 v. Bird, 2 Root (Conn.) 438; Egerton's 
 Adm'r v. Conklin, 25 Wend. (N. Y.) 224; 
 Sorrell v. Ham, 9 Ga. 55; Smith v. Smith's 
 Adm'r, 27 N. J. Eq. 445 ; Hankins v. Kimball, 
 57 Ind. 42 ; nor is the probate even admissi- 
 'ble as evidence that the instrument is a will, 
 or is an execution of a power to charge land ; 
 Wms. Ex. 562. By statute, in some states, 
 the probate is made prima facie or conclu- 
 sive evidence as to realty ; Brown v. Wood, 
 17 Mass. 68; Fortune v. Buck, 23 Conn. 1; 
 Darby v. Mayer, 10 Wheat. (U. S.) 470, 6 
 L. Ed. 367; Jones v. McKee, 3 Pa. 498, 45 
 Am. Dec. 661 ; Singleton v. Singleton, 8 B. 
 Monr. (Ky.) 340; Lewis' Heirs v. His Execu- 
 tor, 5 La. 388. In some states the probate 
 is made after the lapse of a certain time 
 conclusive as to realty; Tarver v. Tarver, 9 
 Pet. (U. S.) 180, 9 L. Ed. 91; Appeal of 
 Hegarty, 75 Pa. 512; Bailey v. Bailey, 8 
 Ohio, 246; Hardy v. Hardy's Heirs, 26 Ala. 
 524 ; Parker's Ex'rs v. Brown's Ex'rs, 6 
 Gratt. (Va.) 564; Kenyon v. Stewart, 44 Pa. 
 189. Land in England under the Land Title
 
 EXECUTORS AND ADMINISTRATORS 1147 EXECUTORS AND ADMINISTRATORS 
 
 and Transfer Act of 1S97 goes to the execu- 
 tor or administrator. 
 
 The administrator has no interest in the 
 decedent's real estate unless the personal 
 property is insufficient to pay debts and ex- 
 penses ; Pratt v. Millard, 154 Mich. 112, 117 
 N. W. 552; and an executor has, ordinarily, 
 no power to sell land unless it is expressly 
 given or necessarily implied in the will ; Han- 
 son v. Hanson, 149 la. 82, 127 N. W. 1032; 
 but one to whom all the testator's residuary 
 estate is devised, "in trust to receive, hold, 
 invest and reinvest," has, by implication, 
 power to sell real estate; Powell v. Wood, 
 149 N. C. 235, G2 S. E. 1071. 
 
 The will may direct the executor to sell 
 lands to pay debts, but the money resulting 
 is usually held to be equitable assets only ; 
 
 9 B. & C. 489; Haskell v. House. 3 Brev. 
 (S. C.) 242; Speed's Ex'r v. Nelson's Ex'r, 
 8 B. Monr. (Ky.) 499; Smith v. Knoebel, 82 
 111. 392 ; Lindley v. O'Reilly, 50 N. J. L. 636, 
 15 Atl. 379, 1 L. R. A. 79, 7 Am. St. Rep. S02 ; 
 but the title and right of possession to the 
 land remain in the heirs until the sale, and 
 they are the proper parties to maintain 
 ejectment; Cohea v. Jemison, 68 Miss. 510, 
 
 10 South. 46; but see Smathers v. Moody, 112 
 N. C. 791, 17 S. E. 532; and to collect the 
 rents; Appeal of Pennsylvania Co. for In- 
 surance on Lives & Granting Annuities, 168 
 Pa. 431, 32 Atl. 25, 47 Am. St. Rep. 893. In 
 equity, the testator's intention will be re- 
 garded as to whether the surplus fund, after 
 a sale of the real estate and payment of 
 debts, shall go to the heir; 1 Wins. Ex. 555, 
 Am. note. 
 
 Chattels real pass to the executor or ad- 
 ministrator, and, such is the interest of the 
 tenant of a farm from year to year; In re 
 Ring's Estate, 132 la. 216. 109 N. AY. 710. 
 But the wife's chattels real, unless taken in- 
 to possession by her husband during his life- 
 time, do not pass to his executor; 1 Wins. 
 Ex. 579, n; In re Hind's Estate, 5 Whart. 
 (Pa.) 138, 34 Am. Dec. 542 ; Pitts v. Curtis, 4 
 Ala. 350; Wade v. Grimes, 7 How. (Miss.) 
 425. The husband's act of possession must 
 effect a complete alteration in the nature of 
 the joint interest of husband and wife in 
 her chattels real, or they will survive to her. 
 
 Chattels personal go to the executor; Har- 
 ris v. Meyer, 3 Redf. (N. Y.) 450; Kahl v. 
 Schober, 35 N. J. Eq. 161 ; Highnote v. White, 
 67 Ind. 596; Beecher v. Buckingham, 18 
 Conn. 110, 44 Am. Dec. 580. Such are em- 
 blements; Brooke, Abr. Emblements; Bevans 
 v. Briscoe, 4 H. & J. (Md.) 139; Rosier v. 
 Cornelison, 98 N. C. 383, 3 S. E. 839; but 
 see Wright v. Watson, 96 Ala. 536, 11 South. 
 634. Heirlooms and fixtures go to the heir; 
 and as to what are fixtures, see Pixti res, 
 and 1 Wins. Ex. 615; 2 Sm. L. Cas., 9th Am. 
 ed. 1450; Crosw. Ex. & Ail. 352. The widows 
 separate property and paraphernalia go to 
 her. For elaborate collections of cases on 
 the effect of nuptial contracts about property 
 
 upon the executor's right, see 1 Wins. Ex. 
 
 •660, Am. lmt,, 2; 2 note 1; 1 Sm. 
 
 Lead. Cas. 65. mortis i 
 
 the donee al cot to tin 
 
 Murdock v. McDowell, 1 Nott & M 
 
 237, 9 Am. Dec. 684 ; M 
 
 Pa. 59; Rockwood v. Wlggin, 16 Gr 
 
 403; Hatch v. Atkinson, 
 
 Dec. 4G4. 
 
 An executor may sell terms f<>r years, and 
 may even make a good til • 
 legatee, unless the sale be fraudulent Bo 
 he may underlet a term. He may inc 
 promissory note or a bill payable to tl 
 tator or his order; Miller v. Helm, 2 
 & S. (.Miss.) 687. The rule that executors 
 have no po\wr to confess judgment is not 
 applicable to offers of judgments to Arm cred- 
 itors, by a firm composed of a surviving mem- 
 ber and the executor of a deceased member, 
 conducting the interests of the dec 
 therein; Columbus Watch < 'o. v. HodenpyL 
 61 Hun 557, 16 N. Y. Supp. 337; but they 
 may compromise claims; Bacon v. Crandon, 
 15 Pick. (.Mass.) 79; riiase v. Bradley. 26 -Me. 
 531; or submit matters In dispute to arbi- 
 tration; Wills v. Rand's Adm'rs, -n Ala. L98i 
 Wood v. Tunnicliff, 71 N. V. 38. Without the 
 sanction of the probate court, he has no pow- 
 er to bind the estate by contract, even for 
 the necessities of infant devisees; Boscoe v. 
 McDonald, 91 Mich. 270. 51 N. \Y. 939. His 
 right to employ counsel depends upon the 
 right to litigate; In re Riviere's Estate, 8 
 Cal. App. 773, 98 Pac. 46. 
 
 li'i/e's Glioses. In general, choses in action 
 given to the wife either before or after mar- 
 riage survive to her, provided her husband 
 have not reduced them to iK>ssession before 
 his death. A promissory note given to the 
 wife during coverture comes under this rule 
 in England; 12 M. & W. 355; 7 Q. P.. 864; 
 but not so in this country generally; Jones' 
 Adm'r v. Warren's Adm'r. 4 Dana (Ky I 
 Fourth Ecclesiastical Society in Middletown 
 v. Mather, 15 Conn. 5S7 ; Savage v. King, 17 
 Me. 301. Mere intention to reduce 
 into possession is not a reduction, nor is a 
 mere appropriation of the fund; 5 Ves. 515; 
 Petrie v. Clark, 11 S. & B. (Pa.) 377, 14 Am. 
 Dec. 636; In re Hinds' Estate, 5 Whart. (Pa.) 
 L38, :>\ Am. Dec. 542; Wardlow v. Tray's 
 Adm'r, 2 Hill. Eq. (S. 0.) 644; Pitts v. Cur- 
 tis, 4 Ala. ::r>0; Curry v. Fulkinson's Ex'rs, 
 14 Ohio LOO. 
 
 A statutory right of a husband to sue for a 
 in action of his wife without admin- 
 istration is confined to the eases expressly 
 declared by the statute and will not be ex- 
 tended by construction; Ferguson v. B 
 p. D. C. 525. 
 
 When the same persons are both executors 
 and trustees, and as executors have paid the 
 debts and passed their final account, they no 
 longer hold the assets as executors but as 
 trustees: [1913] A. 0. 76 But where the 
 same person was appointed executor and tes-
 
 EXECUTORS AND ADMINISTRATORS 1148 EXECUTORS AND ADMINISTRATORS 
 
 tainentary trustee, and he qualified as execu- 
 tor, but gave no undertaking as trustee and 
 secured no order for his discharge as executor, 
 and he had failed to file current accounts 
 until compelled to render a final account, it 
 was held that his relation as executor re- 
 mained and that the court was empowered to 
 direct the final accounting; In re Roach's 
 Estate, 50 Or. 179, 92 Fac. 118. 
 
 Suits by or against Executors and Ad- 
 ministrators. 1. By. In general, a right of 
 action founded on a tort or malfeasance dies 
 with the person. But personal actions found- 
 ed upon any obligation, contract, debt, cove- 
 nant, or other duty to be performed, survive, 
 and the executor may maintain them ; Cowp. 
 375; 1 Wins. Saund. 216, n. See Brannock 
 v. Stocker, 76 Ind. 573 ; 5 B. & Ad. 78. By 
 statutes in England and the United States 
 this common-law right is much extended. An 
 executor may now have trespass, trover, etc., 
 for injuries done to the intestate during his 
 lifetime. Except for slander, for libels, and 
 for injuries inflicted on the person, executors 
 may bring personal actions, and are liable in 
 the same manner as the deceased would have 
 been;. 2 Brod. & B. 102; Van Rensselaer's 
 Ex'rs v. Platner's Ex'rs, 2 Johns. Cas. (N. Y.) 
 17 ; Kennerly v. Wilson, 1 Md. 102 ; Tait v. 
 Parkman, 15 Ala. 253; Martin v. Baker, 5 
 Blackf. (Ind.) 232; Rice's Heirs v. Spots- 
 wood's Heirs, 6 T. B. Monr. (Ky.) 40, 17 Am. 
 Dec. 115; Backus' Adm'rs v. McCoy, 3 Ohio 
 211, 17 Am. Dec. 5S5 ; Hagarty v. Morris, 2 
 W. N. C. (Pa.) 154. See Coleman v. Wood- 
 worth, 28 Cal. 567; Manwell v. Briggs, 17 
 Vt. 176; Richardson v. R. Co., 9S Mass. 85. 
 Should his death have been caused by the 
 negligence of any one, they may bring an ac- 
 tion for the benefit of the family in some 
 states. Executors may also sue for stocks 
 and annuities, as being personal property. A 
 right of action for the breach of a parol con- 
 tract for the sale of land survives to the ex- 
 ecutors; Irwin v. Hamilton, 6 S. & R. (Pa.) 
 208. So they may sue for an insurance pol- 
 icy. 
 
 The courts of New Jersey will enforce the 
 Pennsylvania statute giving a right of action 
 to the widow of one who dies of injuries in- 
 flicted by the wrongful act of another, that 
 statute not being repugnant to the policy of 
 the former state; but such an action cannot 
 be brought in New Jersey by the personal 
 representative of the deceased, as required 
 by the laws of that state in similar cases; 
 Lower v. Segal, 59 N. J. L. 66, 34 Atl. 945. 
 
 For actions accruing after the testator's 
 death, the executor may sue either in his own 
 name or as executor. This is true of actions 
 for tort, as trespass or trover, actions on 
 contract and on negotiable paper ; 3 Nev. & 
 M. 391 ; Patchen v. Wilson, 4 Hill (N. Y.) 57 ; 
 Williams v. Moore, 9 Pick. (Mass.) 432 ; Hail- 
 ey v. Wheeler, 49 N. C. 159. So he may bring 
 replevin in his own name ; Branch v. Branch, 
 
 6 Fla. 314; and so, in short, wherever the 
 money, when recovered, will be assets, the 
 executor may sue as executor ; Flower's Ex'rs 
 v. Garr, 20 Wend. (N. Y.) 668 ; Sheets v. Pa- 
 body, 6 Blackf. (Ind.) 120, 38 Am. Dec. 132 ; 
 Biddle v. Wilkins, 1 Pet. (U. S.) 686, 7 L. Ed. 
 315. See Pope's Heirs v. Boyd's Adm'x, 22 
 Ark. 535 ; Linsenbigler v. Gourley, 56 Pa. 166, 
 94 Am. Dec. 51. An executor cannot recover 
 in ejectment without producing the will ; 
 Mays v. Killen, 56 Ga. 527 ; Horn v. Johnson, 
 87 Ga. 448, 13 S. E. 633. 
 
 2. Against. An action of trespass quare 
 clausum J regit survives against the executor; 
 McCallion v. Gegan, 9 Phila. (Pa.) 240. So 
 also in causes of action wholly occurring aft- 
 er the testator's death, the executor is liable 
 individually ; Kerchner v. McRae, 80 N. C. 
 219. The actions of trespass and trover do 
 not survive against the executors of deceased 
 defendants. But the action of replevin does. 
 The general rule is that causes of action ex 
 contractu survive, while those ex delicto do 
 not. "Executors and administrators are the 
 representatives of the personal property of 
 the deceased and not of his wrongs except so 
 far as the tortious act complained of was 
 beneficial to his estate;" 2 Kent 416. 
 
 As an administrator merely stands in place 
 of the deceased, and does not represent cred- 
 itors, he cannot file a bill to set aside a con- 
 veyance in fraud of creditors, the right to do 
 so being in the creditors defrauded ; Hoyt v. 
 Northup, 256 111. 604, 100 N. E. 164. 
 
 The statute prescribes a fixed time for set- 
 tling estates within which the executor or 
 administrator cannot be sued, or compelled 
 to file an account, unless he waives the 
 right; Moses v. Jones, 2 Nott & McC. (S. C.) 
 259; Baggott v. Boulger, 2 Duer (N. Y.) 160. 
 If he makes payments erroneously, supposing 
 the estate to be solvent, he may recover 
 them, it being a mistake of fact; Walker v. 
 Bradley, 3 Pick. (Mass.) 261; Swope v. 
 Chambers, 2 Gratt. (Va.) 319. 
 
 As to whether an executor or administra- 
 tor is bound to plead the statute of limita- 
 tion, the decisions are not uniform. That he 
 is not bound to do so is held in Hodgdon v. 
 White, 11 N. H. 208; Wiggins v. Lovering's 
 Adm'r, 9 Mo. 262; Semmes v. Magruder, 10 
 Md. 242; Batson v. Murrell, 10 Humph. 
 (Tenn.) 301, 51 Am. Dec. 707; Conway's 
 Ex'r v. Reyburn's Ex'rs, 22 Ark. 290 ; Cham- 
 bers v. Fennemore's Adm'r, 4 Harr. (Del.) 
 368; Appeal of Ritter, 23 Pa. 95; Barnawell 
 v. Smith, 58 N. C. 168; Woods v. Irwin, 141 
 Pa. 278, 21 Atl. 603, 23 Am. St. Rep. 282 ; In 
 re Baumhover's Estate, 151 la. 146, 130 N. 
 W. 817 ; but a different rule applies when the 
 personal estate is insutticient to pay the 
 debts and a resort to the realty is necessary ; 
 Pollard v. Scears' Adm'r, 28 Ala. 484, 65 Am. 
 Dec. 364. That it is his duty to plead the 
 statute is held in Patterson v. Cobb, 4 Fla. 
 481 (and if he does not he is liable for a 
 devastavit); Tunstall v. Pollard's Adm'r, 11
 
 EXECUTORS AND ADMINISTRATORS 114!) EXECUTORS AND ADMINISTRATORS 
 
 Leigh (Va.) 1; Matter of Milligan's Estate, 
 112 App. Div. 373, 98 N. Y. Supp. 480. But 
 the executor was held bound by a waiver of 
 the statute contained in the will; Glassell 
 v. Glassell 147 Cal. 510, 82 Pac. 42. If one 
 co-administrator declines to plead it. the oth- 
 er may do so ; Scull v. Wallace's Ex'rs, 15 
 S. & R. (Pa.) 231, and if the administrator 
 does not plead it, the next of kin may do so ; 
 In re Clarke's Estate, 1 Phila. (Pa.) 356; or 
 a creditor interested in the estate; Smith v. 
 Pattie, 81 Va. 054. The bar of the statute 
 having attached to a claim against an es- 
 tate, it cannot be waived by an acknowledg- 
 ment of the debt by the personal representa- 
 tive; Lee's Adm'r v. Downey, 08 Ala. 98; 
 Vrooman v. Li Po Tai, 113 Cal. 302, 45 Pac. 
 470; Burnett v. Noble, 5 Redf. Sur. (N. Y. I 
 69 ; Seig v. Acord's Ex'r, 21 Gratt. (Va.) 305, 8 
 Am. Rep. 005. And the executor or adminis- 
 trator cannot waive the statute as against 
 a claim in his own favor; Grinnell v. Bax- 
 ter, 17 Pick. (Mass.) 383; In re Brown's Es- 
 tate, 77 Misc. 507, 137 N. Y. Supp. 978 ; Clay- 
 ton v. Dinwoodey, 33 Utah 251, 93 Pac. 723, 
 14 Ann. Cas. 920; or the next of kin may 
 set in up; Willcox v. Smith, 20 Barb. (N. 
 Y.) 310. He is, in some states, chargeable 
 with interest, first, when he receives it upon 
 assets put out at interest; second, when he 
 uses them himself: third, when he has large 
 sums paid him which he ought to have put 
 out at interest; Griswold v. Chandler, 5 N. 
 H. 497; Wyman v. Hubbard. 13 Mass. 232; 
 but he is not liable where he has funds which 
 he holds pending legal proceedings to deter- 
 mine the rights of the remaindermen; In re 
 Howard's Estate, 3 Misc. 170, 23 N. Y. Supp. 
 836. In some cases of need, as to relieve an 
 estate from sale by a mortgagee, he may 
 lend the estate money and charge interest 
 thereon ; Jennison v. Hapgood, 10 Pick. 
 (Mass.) 77. The widow's support is usually 
 decreed by the judge. But the administra- 
 tor is not liable for the education of infant 
 children, or for mourning-apparel for rela- 
 tives and friends of the deceased: Johnson 
 v. "Corbett, 11 Paige Ch. (N. Y.) 205; Appeal 
 of Flintham, 11 S. & R. (Pa.) 16. 
 
 The liability is in general measured by the 
 amount of assets. On his contracts he may 
 render himself liable personally, or as ad- 
 ministrator merely, according to the terms of 
 the contract which he makes; 7 B. & C. 450; 
 Murrell v. Wright, 78 Tex. 519, 15 S. W. 156. 
 But to make him liable personally for con- 
 tracts about the estate, a valid consideration 
 must be shown ; 3 Sim. 543 ; 2 Brod. & B. 
 460. And, in general, assets or forbearance 
 will form the only consideration; 5 My. & 
 C. 71; Bank of Troy v. Topping & Holme. 
 13 Wend. (N. Y.) 557. But a bond of itself 
 imports consideration ; and hence a bond giv- 
 en by administrators to submit to arbitra- 
 tion is binding upon them personally ; Ten 
 Eyck v. Vanderpoel, 8 Johns. (N. Y.) 120; 
 Robinson v. Lane, 14 Smedes & M. (Miss.) 
 
 161. He may compromise a suit brought for 
 the widow and next of kin, for the death of 
 the intestate; Washington v. K. Co., 136 111. 
 49, 26 N. E. 653 [n liable 
 
 when he has acted in g 1 faith, and 
 
 that degree Of caution Which prudent men 
 exhibit in the conduct of their own afl 
 In re Bosio's Estate, 2 Asbm (Pa.) 437. 
 
 An administrator cannot ratify decedent's 
 void transaction-, nor make any conl 
 for him; Smith v. Brennan, 62 Ml 
 N. W. 892, 4 Am. St. Rep. 867. 
 
 An administrator Is liable for torts 
 for gross negligence in managing his 
 tate's property. This species of misconduct 
 is called in law a devastavit; Cartwright v. 
 Cartwright, 4 Hayn. (Tenn.) 134; 
 v. Yarborough, 16 N. C. 516; in re Bolladay's 
 Estate, 18 Or. 168, 22 Pac 750. Such is neg- 
 ligence in collecting notes or debts; In re 
 Merkel's Estate, 131 Pa. 584, 18 Atl. 
 an unnecessary sale of property at a dis- 
 count; Pinckard v. Woods. 8 Gratt (Va.) 
 140; paying undue funeral expenses; I B. ft 
 Ad. 260; and the like mismanagements. Bo 
 he may be liable for not laying out assets 
 for the benefit of the estate, or for turning 
 the money to his own profit or advantage. 
 In such cases he is answerable for both prin- 
 cipal and interest In England he may be 
 charged with Increased Interest for money 
 withheld by fraud; 2 Cox, Oh. 113; 4 Vea 
 620; and he is sometimes made chargi 
 with compound interest in this country ; Jen- 
 nison v. Hapgood, 10 Pick. (Mass.) 77. Fi- 
 nally, a refusal to account for funds, or an 
 unreasonable delay in accounting, raises a 
 presumption of a wrongful use of them ; 
 Johnson v. Beauchamp, 5 Dana (Ky.) 7"; 
 Evans v. Iglehart, 6 Gill & J. (Md.) 186. [f 
 he receives rents and profits of land for a 
 long period without accounting, he is liable 
 to the heirs for the reasonable rental value 
 of the land for the entire period ; Shuffler v. 
 Turner. Ill N. C. 297, 16 S. E. 417. 
 
 Where real estate is sold by executors 
 CO-executor, the sale is voidable at the in- 
 stance of those interested in the estate: 
 In re Richard's Estate, 154 CaL 478, 98 Pac. 
 528. One executor may sue another where 
 questions arise between the latter and the 
 estate, jeopardizing the rights of par. 
 interest: Monmouth Inv. Co. v. Means. L51 
 l ed. L59, B0 C. C. A. 527. 
 
 Alter the debts have been paid and the 
 final aCCOUnl passed, and a legacy ordered 
 
 paid, an action will Lie against the executor 
 to recover it; Anderson v. Tatty, LI 
 App. 15L 
 
 An insolvent hank cannot sue an executor 
 for an assessment on the stock of his 
 dent, which was levied after a final decree 
 e distribution of the estate; Onion Sav- 
 ings Bank of San Jose v. De Laveaga, 150 
 Cal. 395, 89 Pac. 84. 
 
 Distribution. The distribution or disposal 
 of the estate by an executor is as directed
 
 EXECUTORS AND ADMINISTRATORS 1150 EXECUTORS AND ADMINISTRATORS 
 
 by the will. The administrator must distrib- 
 ute the residue among those entitled to it, 
 under direction of the court and according 
 to law; Lamb v. Carroll, 28 N. C. 4; Appeal 
 of Stewart, 86 Pa. 149; Appeal of Kline, 86 
 Pa. 363; Marshall v. Hitchcock, 3 Redf. (N. 
 Y.) 461. But if he recognizes a claim as 
 proper to be paid, and subsequently finds 
 that there is no legal foundation for it, it is 
 not binding upon the estate ; Webster v. Le 
 Compte, 74 Md. 249, 22 Atl. 232. And even 
 after action brought against him by a credi- 
 tor he may apply the assets in payment of 
 the debt of another creditor; 24 Q. B. Div. 
 364. 
 
 The great rule is, that personal property 
 is regulated by the law of the domicil. The 
 rights of the distributees vest as soon as the 
 intestate dies, but cannot be sued for till the 
 lapse of the statute period of distribution. 
 See 118th Novel of Justinian, Cooper's trans. 
 393 : Distribution ; Conflict op Laws. 
 
 Compensation. An executor cannot pay 
 himself. His compensation must be ordered 
 by the court; Collins v. Tilton, 58 Ind. 374. 
 Faithful service by an executor is a condi- 
 tion to the right of commissions. Misappro- 
 priation of funds may forfeit the right; In 
 re Clauser's Estate, 84 Pa. 51. 
 
 Commissions are not allowed on a legacy 
 given in trust to an executor; Westerfield v. 
 Westerfield, 1 Bradf. Surr. (N. Y.) 198; 
 Ames v. Downing, 1 Bradf. Surr. (N. Y.) 
 321. Reasonable expenses are always allow- 
 ed an executor; Thacher v. Dunham, 5 
 Gray (Mass.) 26; Wilson v. Bates, 28 Vt. 
 765 ; Ord v. Little, 3 Cal. 287 ; Noel v. Harvey, 
 29 Miss. 72. When one of two co-executors 
 has done nothing, he should get no commis- 
 sion; White v. Bullock, 20 Barb. (N. Y.) 91. 
 Where a stranger was appointed adminis- 
 trator, upon his statement that his service 
 would be gratuitous, he should not be al- 
 lowed commissions ; Hilton v. Hilton's Adm'r, 
 109 S. W. 905, 33 Ky. L. Rep. 276. In Eng- 
 land, executors cannot charge for personal 
 trouble or loss of time, and can only be paid 
 for reasonable expenses. 
 
 An administrator receives no compensa- 
 tion in England ; 3 Mer. 24 ; but in this 
 country he is paid in proportion to his serv- 
 ices, and all reasonable expenses are allowed 
 him ; Appeal of Culbertson, 84 Pa. 303. Ad- 
 ditional allowance may be made where ex- 
 traordinary services have been rendered; In 
 re Moore's Estate, 96 Cal. 522, 31 Pac. 584. 
 An administrator cannot pay himself. His 
 compensation must be ordered by the court ; 
 Collins v. Tilton, 58 Ind. 374. If too small 
 a compensation be awarded him, he may ap- 
 peal; Jewett v. Woodward, 1 Edw. Ch. (N. 
 Y.) 195; Edelen v. Edelen, 11 Md. 415; Ord 
 v. Little, 3 Cal. 287 ; Andrew's Ex'rs v. An- 
 drew's Adm'rs, 7 Ohio St. 143; Fowler v. 
 Lockwood, 3 Redf. (N. Y.) 465. Allowance 
 by a probate court cannot be impeached in a 
 court of equity unless fraud or deception 
 
 has been practiced; Smith v. Worthington, 
 53 Fed. 977, 4 C. C. A. 130. He cannot buy 
 the estate, or any part of it, whsn sold by a 
 common auctioneer to pay debts ; but he 
 may when the auctioneer is a state officer, 
 and the sale public and bona fide; Toler's 
 Adm'r v. Toler, 2 Patt. & H. (Va.) 71; 
 Weeks v. Gibbs, 9 Mass. 75 ; Babbitt v. Doe, 
 4 Ind. 355 ; Barrington v. Alexander, 6 Ohio 
 St 189. 
 
 Federal Jurisdiction. Matters of pure pro- 
 bate are not within the jurisdictions of 
 courts of the United States; but where a 
 state law gives citizens of the state, in an 
 action or suit inter partes, the right to ques- 
 tion the probate of a will, federal courts, at 
 the suit of citizens of other states or aliens 
 will enforce such remedies; Farrell v. 
 O'Brien, 199 U. S. 89, 25 Sup. Ct 727, 50 L. 
 Ed. 101. 
 
 The possession of a state court which will 
 exclude the exercise of power by the federal 
 court, and vice versa, must be the possession 
 of some thing, corporeal or incorporeal, 
 which has been taken under the dominion of 
 the court. A controversy or inquiry is not 
 such a thing, and the pendency of a suit or 
 proceeding in one court, involving a question, 
 controversy, or inquiry, is no bar to the ex- 
 ercise of jurisdiction in the determination 
 of the same question, etc., in the other ; Ball 
 v. Tompkins, 41 Fed. 486; American Baptist 
 Home Mission Society v. Stewart, 192 Fed. 
 976; Byers v. McAuley, 149 U. S. 608, 13 
 Sup. Ct. 906, 37 L. Ed. 867. 
 
 The right to administer property left by a 
 foreigner within the jurisdiction of a state is 
 primarily committed to state law and the 
 public administrator is entitled to adminis- 
 ter the estate of an Italian subject dying and 
 leaving an estate in California, in preference 
 to the Italian Consul General, who claimed 
 the right under treaty; In re Ghio's Estate, 
 157 Cal. 552, 108 Pac. 516, 37 L. R. A. (N. 
 S.) 549, 137 Am. St. Rep. 145, affirmed in 
 Rocca v. Thompson, 223 U. S. 317, 32 Sup. 
 Ct. 207, 56 L Ed. 453, where the question 
 whether it is within the treaty-making pow- 
 er to provide for administration upon the 
 estates of foreigners dying within a state, 
 by the consul of their country, was suggest- 
 ed but not discussed or decided. See Treaty. 
 
 See Schouler; Williams; Croswell, Exrs. 
 and Admrs. ; Woerner, Law of Adm. ; 2 
 Lawson, Rights & Rem. 889-1008; Holmes, 
 Executors in Early English Law, 3 Sel. Es- 
 says in Anglo-Amer. L. H. 736 (9 Harv. L. R. 
 42) ; Cailleiner, The Executor in England 
 and on the Continent, id. 746. 
 
 EXECUTORY. Performing official duties; 
 contingent; also, personal estate of a de- 
 ceased ; whatever may be executed, — as, an 
 executory sentence or judgment. 
 
 EXECUTORY CONSIDERATION. Some- 
 thing which is to be done after the promise
 
 EXECUTORY CONSIDERATION 1151 
 
 EXECUTORY DEVISE 
 
 is made, for which it is the legal equivalent. 
 See Consideration. 
 
 EXECUTORY CONTRACT. One in which 
 some future act is to be done: as, where 
 an agreement is made to build a house in 
 six months, or to do any act at a future day. 
 See Contract; I'kki okmance. 
 
 An agreement to sell and convey land, 
 which is not a conveyance, operating as a 
 present transfer of legal estate and seisin, 
 is wholly executory, though it contains the 
 words "grant, bargain and sell ;" and pro- 
 duces no effect upon the estates and titles 
 of the parties; and creates no lien or charge 
 on the land itself; Simpson v. Breckenridge, 
 :;-j. Pa. 287; Stewart's Adm'rs v. Lang, 37 
 Pa. 201, 78 Am, Dec. 414; Watson v. Coast, 
 ^5 W. Va. 463, te S. E. 249. 
 
 EXECUTORY DEVISE. Such a limita- 
 tion of a future estate in lands or chattels 
 as the law admits in case of a will, though 
 contrary to the rules of limitation in con- 
 veyances at common law. 
 
 It is a limitation by will of a future estate 
 or interest in ' lands or chattels. In re 
 Brown's Estate, 38 Pa. 294. 
 
 By the executory devise no estate vests at the 
 death of the devisor or testator, but only on the fu- 
 ture contingency. It is only an indulgence to the 
 last will and testament which is supposed to be 
 made by one inops cunsilii. When the limitation by 
 devise is such that the future interest falls within 
 the rules of contingent remainders, it is a contin- 
 gent remainder, and not an executory devise. 4 
 Kent 257 ; 3 Term 763. 
 
 If a particular estate of freehold be first devised, 
 capable in its own nature of supporting a remain- 
 der, followed by a limitation which is not immedi- 
 ately connected with, or does not immediately com- 
 mence from, the expiration of the particular estate 
 of freehold, the latter limitation cannot take effect 
 as a remainder, but may operate as an executory 
 devise: e. g., if land be devised to A for life, and 
 after his decease to B in fee, B takes a (vested) re- 
 mainder, because his estate is immediately connect- 
 ed with, and commences on, the limitation of A's 
 estate. If land be limited to A for life, and one 
 year after his decease to B In fee, the limitation to 
 B is not such a one as will be a remainder, but may 
 operate as an executory devise. Fearne, Cont. Rem. 
 399. If land be limited to A for life, and after his 
 decease to B and his heirs, with a proviso that if 
 B survive A and die, without issue of his body liv- 
 ing at his decease; then to C and his heirs, the 
 limitation to B, etc., prevents an immediate con- 
 nection of the estate limited to C with the life es- 
 tate of A, and prevents its commencement on the 
 death of A. It must operate, if at all, as an execu- 
 tory devise ; Butler's note (c) to Fearne, Cont. Rem. 
 397. If a chattel interest be bequeathed for life, 
 with remainder over, this latter disposition cannot 
 take effect as a remainder, but may as an execu- 
 tory devise, or more properly bequest ; id. 407. 
 
 An executory devise differs from a remainder In 
 three very material respects: 
 
 First. It needs no particular estate to support It 
 Second. By it a fee-simple or other less estate may 
 be limited on a fee-simple. Third. By it a remain- 
 der may be limited of a chattel interest after a 
 particular estate for life created in the same. 
 
 The first Is a case of freehold commencing in fu- 
 ture-. A makes a devise of a future estate on a cer- 
 tain contingency, and till the contingency happens 
 does not dispose of the fee-simple, but leaves It to 
 descend to his heirs at law. 1 T. Raym. 82 ; 1 Salk. 
 226; 1 I.utw. 798. 
 
 The second case Is a fee upon a fee. A devises to 
 A and his heirs forever, which is a fee-simple, and 
 
 then, In case A dies, before he is twenty-one years 
 of age, to B and his heirs. Cro. Jac. 590 ; 10 Mod. 
 420. 
 
 The third case: a limitation in a term of years 
 after a life estate. A grants a term of one thousand 
 years to B for life, remainder to C. The common 
 law regards the term for years as swallowed up in 
 the grant for life, which, being a freehold, is a 
 greater estate, and the grantee of such a term for 
 life could alien the whole. A similar limitation in 
 a will may take effect, however, as an ex< 
 bequest; Scott v. Price, 2 S. & R. (Pa.) 59, 7 Am. 
 Dec. 629; Logan v. Ladson's Ex'r, 1 Des. IS. C.) 
 271 ; Clifton v. Haig's Ex'rs, 4 Des. (S. C.) 330. 
 
 It is not a mere possibility, but a sub- 
 stantial interest, and in respect to its trans- 
 missibility stands on the same footing with 
 a contingent remainder; Medley v. M< 
 81 Va. 268. 
 
 In order to prevent perpetuities, the rule 
 has been adopted that executory Into 
 must be so limited that from the time of 
 their limitation they will necessarily 
 in right (not necessarily in p at a 
 
 period not exceeding that occupied by the 
 life or lives of a person or persons then 
 living, or in ventre matris, and the minority 
 of any person or persons born or in >■ ntre 
 matris prior to the decease of, such lirst 
 named person or persons, or at a period not 
 exceeding that occupied by the life or lives 
 of such first named person or persons, and 
 an absolute term of twenty-one years after- 
 wards, or within, or at the expiration of an 
 absolute term of twenty-one years without 
 reference to any life. For example, lauds 
 are devised to such unborn son of a feme 
 overt as shall first reach the age of twenty- 
 one years. The utmost length of time that 
 can happen before the estate can vest is the 
 life of the mother and the subsequent in- 
 fancy of her son. Such an executory devise 
 is therefore good. If, however, such limit- 
 ation had been to the first unborn son who 
 shall attain the age of twenty-five years, 
 the rule against perpetuities would be in- 
 fringed and the limitations bad ; Smith, Ex. 
 Int. 391; 2 Bla. Com. 174. 
 
 An executory devise limited after an in- 
 definite failure of issue is bad as leading to 
 a perpetuity; 4 Kent 273; and so of an 
 executory bequest, but the courts are in the 
 latter case much less apt to construe limita- 
 tions as contemplating a detinite failure 
 of issue; 4 Kent 281 ; 1 P. Wma 863; Gray, 
 Perpet. 212. 
 
 An executory devise is generally inde- 
 structible by any alteration in the i 
 out of or after which it is limited. But if 
 it is limited on an estate tail the tenant in 
 tail can bar it, as well as the entail, by 
 common recovery or by deed enrolled, etc., 
 where such deed is by statute given the 
 force* and effect of a common recovery; 
 Butler's note to Fearne, Cont, Rem. 562; 
 Wma R- P. 319. 
 
 EXECUTORY ESTATES. Interests which 
 depend for their enjoyment upon some sub- 
 sequent event or contingency. Such estate
 
 EXECUTORY ESTATES 
 
 1152 
 
 EXECUTORY TRUSTS 
 
 may be an executory devise, or an executory 
 remainder, which is the same as a contingent 
 remainder, because no present interest 
 passes. 
 
 EXECUTORY PROCESS (Via Execu- 
 tor ia). In Louisiana, a process which can be 
 resorted to in two cases, namely : 1. When 
 the right of the creditor arises from an act 
 importing confession of judgment, and which 
 contains a privilege or mortgage in his favor. 
 2. When the creditor demands the execution 
 of a judgment which has been rendered by a 
 tribunal different from that within whose 
 jurisdiction the execution is sought. Code of 
 Practice, art. 732. 
 
 EXECUTORY TRUSTS. A trust is called 
 executory when some further act is requisite 
 to be done by the author of the trust to give 
 it its full effect. See Bisph. Eq. 31; Lewin, 
 Tr. 144. 
 
 The distinction between executed and ex- 
 ecutory trusts is well settled; Dennison v. 
 Goehring, 7 Pa. 177, 47 Am. Dec. 505 ; though 
 once doubted in England; 1 Ves. 142; but 
 see 2 Ves. 323. The test is said to be : Has 
 the testator been what is called, and very 
 properly called, his own conveyancer? Has 
 he left it to the court to make out from gen- 
 eral expressions what his intention is? or 
 has he so defined that intention that you 
 have nothing to do but to take the limita- 
 tions he has given to you, and to convert 
 them into legal estates? per Lord St. Leon- 
 ards, Ld. Ch., in 4 H. L. Cas. 210; see Till- 
 inghast v. Coggeshall, 7 R. I. 383; Bisph. Eq. 
 86. 
 
 In the case of articles made in contem- 
 plation of marriage, and which are, there- 
 fore, preparatory to a settlement, so in the 
 case of a will directory of a future convey- 
 ance to be made or executed by the trustees 
 named therein, ,it is evident that something 
 remains to be done. The trusts are said to 
 be executory, because they require an ul- 
 terior act to raise and perfect them : i. e. 
 the actual settlement is to be made or the 
 conveyance to be executed. They are in- 
 structions, rather than complete instruments, 
 in themselves. 
 
 The court of chancery will, in promotion 
 of the supposed views of the parties or the 
 testator and to support their manifest in- 
 tention, give to the words a more enlarged 
 and liberal construction than in the case 
 of legal limitations or trusts executed ; 1 
 Fonbl. Eq. b. 1; White, Lead. Cas. 18. 
 Where a voluntary trust is executory and 
 not executed, if it could not be enforced at 
 law because it is a defective conveyance, it 
 is not helped in favor of a volunteer in a 
 court of equity; Minturn v. Seymour, 4 
 Johns. Ch. (N. Y.) 498, 500; Acker v. Phoe- 
 nix, 4 Paige, Ch. (N. Y.) 305; Dawson v. 
 Dawson, 16 N. C. 93, 18 Am. Dec. 573. But 
 where the trust, though voluntary, has been 
 executed in part, it will be sustained or en- 
 
 forced in equity ; Bunn v. Wiuthrop, 1 Johns. 
 Ch. (N. Y.) 329; Dennison v. Goehring, 7 
 Pa. 175, 178, 47 Am. Dec. 505. White, Lead, 
 Cas. 176; 6 Ves. 656; 18 id. 140; 1 Kaen 
 551; 3 Beav. 238. 
 
 EXECUTORY USES. Springing uses 
 which confer a legal title corresponding to 
 an executory devise. 
 
 Thus, when a limitation to the use of A in fe« 
 is defeasible by a limitation to the use of B to arise 
 at a future period, contingency, or event, these con- 
 tingent or springing uses differ herein from an ex- 
 ecutory devise: there must be a person seized to 
 such uses at the time the contingency happens, else 
 they can never be executed by the statute. There- 
 fore, if the estate of the feoffee to such use be de- 
 stroyed by alienation or otherwise, before the con- 
 tingency arises, the use is destroyed forever ; 1 Co. 
 134, 138 ; Cro. Eliz. 439 ; whereas by an executory 
 devise the freehold itself Is transferred to the 
 future devisee. In both cases, a fee may be limited 
 after a fee ; 10 Mod. 423. 
 
 EXECUTRIX. A woman who has been 
 appointed by will to execute such will or 
 testament. See Executob. 
 
 EXECUTRY. In Scotch Law. The mov- 
 able estate of a person dying, which goes to 
 his nearest of kin. So called as falling un- 
 der the distribution of an executor. Bell, 
 Diet. 
 
 EXEMPLARY DAMAGES. See Measure 
 of Damages. 
 
 EXEMPLIFICATION. A perfect copy of 
 a record or office-book lawfully kept, so far 
 as relates to the matter in question. See, 
 generally, 1 Stark. Ev. 151 ; 1 Phill. Ev. 307 ; 
 Mills v. Duryee, 7 Cra. (U. S.) 4S1, 3 L. Ed. 
 411; Drummond v. Magruder, 9 Cra. (U. S.) 
 122, 3 L. Ed. 677; Hampton v. M'Connel, 3 
 Wheat. (U. S.) 234, 4 L. Ed. 378; Baker 
 v. Field, 2 Yeates (Pa.) 532; Ellmore v. 
 Mills, 2 N. C. 359 ; Smith v. Blagge, 1 Johns. 
 Cas. (N. Y.) 23S; Schaben v. U. S., 6 Ct. CI. 
 230; Thomas v. Stewart, 92 Ind. 246; Cox 
 v. Jones, 52 Ga. 438. As to the mode of au- 
 thenticating records of other states, see For- 
 eign Judgments. 
 
 EXEMPLUM (Lat). In Civil Law. A 
 
 copy. A written authorized copy. Used also 
 in the modern sense of example: ad exemp- 
 lum constituti singulares non trahi (excep- 
 tional things must not be taken for ex- 
 amples). Calv. Lex. Exempli gratia, for the 
 sake of example. Abb. e. g. 
 
 EXEMPTION. The right given by law to 
 a debtor to retain a portion of his property 
 without its being liable to execution at the 
 suit of a creditor, or to a distress for rent. 
 
 In general, the sheriff may seize and sell 
 all the property of a defendant which he 
 can find, except such as is exempted by the 
 common law or by statute. The common 
 law was very niggardly of these exceptions : 
 it allowed only the necessary wearing ap- 
 parel; and it was once holden that if a de- 
 fendant had two gowns the sheriff might 
 sell one of them; Comb. 356. But in mod-
 
 EXEMPTION 
 
 1153 
 
 EXEMPTION 
 
 em times, with perhaps a prodigal liber- 
 ality, a considerable amount of property, 
 Loth real and personal, is exempted from 
 execution by the statutes of; the several 
 states; L9 Am. L. Reg. 1; 4 So. L. Rev. 
 N. S. 1; In re Radway, 3 Hughes GOO, Fed. 
 Oas. No. 11,523; Carlton v. Watts, 82 N. O. 
 212: Mapp v. Eon-, 62 Ga. 5G8 ; Singletary 
 v. Singletary, 31 La. Ann. 374; Rutledge v. 
 Rutledge, 8 Bax. (Tenn.) 33; Creath v. 
 Dale, <'>'•» Mo. 41; Vandertiorst v. Bacon, 38 
 Mich. 669, 31 Am. Rep. 32 S ; Murphy v. Har- 
 ris. 77 Cal. 194, 19 Pac. 377; In re Robb, 99 
 Cal. 202, 33 Pac. 890, 37 Am. St. Rep. 48; 
 Carter v. Davis, 6 Wash. 327, 33 Pac. 833; 
 Bean v. Ins. Co., 54 Minn. 366, 50 X. W. 127; 
 Hamberger v. Marcus, 157 Pa. 133, 27 Atl. 
 681, 37 Am. St. Rep. 719 ; and there is now 
 hardly a state or nation which has not by 
 statute made certain exemptions designed 
 as a protection for the family ; Woodward v. 
 Murray, 18 Johns. ' (X. Y.) 403; and such 
 statutes are to be liberally construed; But- 
 ner v. Bowser, 104 Ind. 259, 3 N. E. 889; 
 Kuntz v. Kinney, 33 Wis. 510 ; Good v. Fogg, 
 01 111. 449, 14 Am. Rep. 71; Carty v. Drew, 
 46 Vt. 34G; Allison v. Brookshire, 38 Tex. 
 199; Seeley v. Gwillim, 40 Conn. 10G. Some 
 of the exemptions are the following: house- 
 hold furniture ; Towns v. Pratt, 33 X. II. 
 345, GG Am. Dec. 72G ; Tanner v. Billings, 18 
 Wis. 1G3, SG Am. Dec. 755; Dunlap v. Edger- 
 ton, 30 Vt. 224 ; Haswell v. Parsons, 15 Cal. 
 266, 76 Am. Dec. 4S0 ; Heidenheimer v. 
 Blumenkron, 5G Tex. 308; tools of trade; 
 Atwood v. De Forest, 19 Conn. 513 ; Enscoe 
 v. Dunn, 44 Conn. 93, 2G Am. Rep. 430 ; Bos- 
 ton Belting Co. v. Ivens & Co., 2S La. Ann. 
 695; Wicker v. Comstock, 52 Wis. 315, 9 N. 
 W. 25; work horses; Tishomingo Sav. Inst. 
 v. Young, 87 Miss. 473, 40 South. 9, 3 L. R. A. 
 (X. S.) 693, 112 Am. St. Rep. 454, 6 Ann. 
 Cas. 77G; Forsyth v. Bower, 54 Cal. 639; 
 Jaquith v. Scott, 63 X. H. 5, 5G Am. Rep. 
 47G ; Steele v. Lyford, 59 Vt. 230, 8 Atl. 736 
 (but this will not include high bred horses 
 used for pleasure and to drive to and from 
 business ; Tishomingo Sav. Inst. v. Young, 
 87 Miss. 473, 40 South. 9, 3 L. R. A. [X. S.) 
 693, 112 Am. St. Rep. 454, G Ann. Cas. 776) : 
 the interest of a legatee in lands, until the 
 court has held it to be a charge on such, al- 
 though the legacy is given with a view that 
 it shall be such a charge ; Hiscock v. Fulton, 
 G3 Hun G24, 17 N. Y. Supp. 40S; curtesy ini- 
 tiate ; Bruce v. Xicholson, 109 X. C. 202, 13 
 S. E. 790, 2G Am. St. Rep. 5G2 ; property held 
 in trust; Mosher v. Neff, 33 Neb. 770, 51 X. 
 W. 138; the bridge of a public corporation; 
 Overton Bridge Co. v. Means. 33 Neb. 857, 
 51 X. W. 240, 29 Am. St. Rep. 514; blackber- 
 ries while growing; Sparrow v. Pond. 19 
 Minn. 412. 52 N. W. 30, 1«; L. R. A. To:;. 32 
 Am. St. Rep. 571; trade-mark, apart from 
 the articles it has served to identify ; Prince 
 Mfg. Co. v. Paint Co., 20 X. Y. Supp. 4«I2 ; a 
 vendor's lien reserved for the purchase price 
 Bouv.— 73 
 
 of lands conveyed; Willis & Pro. v. 
 
 inervill Civ. App. 
 
 the interest of a cestui under a 
 
 trust for iiiainl 1 support : Br 
 
 v. Raynolds, 59 I i a. 370; U 
 
 interest of the grantor in property trai 
 
 ferred in fraud of cre'i v. 
 
 Perkins, 141 X. Y. 1, 35 N. I 
 
 emption laws are Inapplicable t 
 
 from a citizen to the Onib 
 
 Howell, !) Fed. 674. 
 
 U. S. 2S0, 1 Sup. Ct. 325, 27 I.. 
 
 Exemption laws are not a part • 
 tract; they are part of the remedy and sub- 
 ject to the law of the forum 1. 
 & P. Ry. Co. v. Sturm. 174 V. S. 71". 17 5 
 Ct. 797, 43 L. Ed. 1111; Mineral Point R. 
 Co. v. Barron, 83 111. .:»;.", ; Carson v. Rj 
 SS Tenn. 646, 13 S. W. 588, 8 L. R. A. 412, 17 
 Am. St. Rep. 921; Conley v. Chilcote, 25 
 Ohio St. 320; Albrecht v. Treitschke, 17 
 205, 22 X. W. 41S: Moore v. R. Co., 43 la. 
 385; Broadstreet v. Clark. •;.-, la. ';7<>. 2 
 W. 919; Stevens v. Brown, 20 W. \'a. 450. 
 That a debt is exempt from judicial pr< 
 in the state where it was created will not 
 make it exempt in another jurisdiction. The 
 exemption does not follow the debt as an 
 incident thereto; Chicago, li. I. & P. Ry. Co. 
 v. Sturm, 174 U. S. 710, 17 Sup. Ct. 7'.j7, 4:: 
 L. Ed. 1144. 
 
 See, generally, Bankruptct ; Distress ; 
 Execution ; Homestead ; Family ; Tools ; 
 Tax. 
 
 EXEMPTS. Persons who are not bound 
 by law, but excused from the performance 
 of duties imposed upon others. 
 
 By act of congress Feb. 24, 1S64, It was enacted 
 that such persons as were rejected as physically or 
 mentally unfit for the service, all persons actually 
 in the military or naval service of the United States 
 at the time of the draft, and all persons who had 
 served in the military or naval service two years 
 during the then war and been honorably discharged 
 therefrom, and no others, were exempt from enrol- 
 ment and draft under said act, and act of congress. 
 March 3, 1SG3. 
 
 EXEQUATUR (Lat). In French Law. 
 
 A Latin word which was, in the ancient prac- 
 tice, placed at the bottom of a judgment 
 emanating from another tribunal, and was a 
 permission and authority to the ottteer to ex- 
 ecute It within the jurisdiction of the judge 
 who put it below the judgment 
 
 We have something of the same kind in our 
 tice. When a warrant for the arrest of a criminal 
 is issued by a justice of the peace of one county, 
 and he flies into another, a justice of the 
 county may indorse the warrant, and then the min- 
 isterial oflicer may execute It in such county. This 
 is called backing a warrant. 
 
 In International Law. An official n 
 Uon of :i consul or commercial agent made 
 by the foreign department of the state to 
 which he is accredited, authorizing him to 
 
 exercise his power. He cannot act without 
 
 i it may be refused or revoked at the 
 
 pleasure of the same government .') Chit. 
 
 Com. Law 56; LI ML ,V S. 29.0; 5 Pardessus,
 
 EXEQUATUR 
 
 1154 
 
 EXHIBIT 
 
 n. 1445 ; Twiss, Law of Nations ; 1 Halleck, 
 Int. Law 351. 
 
 EXERCITOR MARIS (Lat). In Civil 
 Law. One who fits out and equips a vessel, 
 whether he be the absolute or qualified own- 
 er, or even a mere agent. Emerigon, Mar. 
 Loans, c. 1, s. 1. We call him exercitor to 
 whom all tbe returns come. Dig. 14. 1. 1. 15; 
 14. 1. 7; 3 Kent 161; Molloy, de Jur. Mar. 
 243. 
 
 The managing owner, or ship's husband. 
 These are the terms in use in English and 
 American laws, to denote the same as ex- 
 ercitor maris. See Ship's Husband. 
 
 EXERCITORIA ACTIO (Lat.). In Civil 
 Law. An action against a managing owner 
 (exercitor maris), founded on acts of the 
 master. 3 Kent 161 ; Vicat, Voc. Jur. 
 
 EXFESTUCARE (Lat). To abdicate; to 
 resign by passing over a staff. Du Cange. 
 To deprive one's self of the possession of 
 lands, honors, or dignities, which was for- 
 merly accomplished by the delivery of a 
 staff or rod. Said to be the origin of the 
 custom of surrender as practised in England 
 formerly in courts baron. Spelman, Gloss. 
 See also, Vicat, Voc. Jur. ; Calvinus, Lex. 
 
 EXH/EREDATIO (Lat). In Civil Law. 
 
 A disinheriting. The act by which a forced 
 heir is deprived of his legitimate or legal 
 portion. In common law, a disherison. Oc- 
 curring in the phrase, in Latin pleadings, 
 ad exhwredationem (to the disherison), in 
 case of abatement 
 
 EXH/ERES (Lat). In Civil Law. One 
 disinherited. Vicat, Voc. Jur.; Du Cange. 
 
 EXHIBERE (Lat). To present a thing 
 corporeally, so that it may be handled. 
 Vicat, Voc. Jur. To appear personally to 
 conduct the defence of an action at law. 
 
 EXHIBIT. To produce a thing public- 
 ly, so that i#may be taken possession of and 
 seized. Dig. 10. 4. 2. 
 
 To file of record. Thus, it is the practice 
 in England in personal actions, when an 
 officer or prisoner of the king's bench is de- 
 fendant, to proceed against such defendant 
 in the court in which he is an officer, by 
 exhibiting, that is, filing, a bill against him. 
 Steph. PL 52, n. (1) ; 2 Sellon, Pr. 74; Newell 
 v. State, 2 Conn. 38. 
 
 A paper or writing proved on motion or 
 other occasion. 
 
 A supplemental paper referred to in the 
 principal instrument, identified in some par- 
 ticular manner, as by capital letter, and 
 generally attached to the principal instru- 
 ment. 1 Stra. 674; 2 P. Wms. 410; Gresl. 
 Eq. Ev. 98. 
 
 A paper referred to in, and filed with the 
 bill, answer, or petition in a suit in equity, 
 or with a deposition. Brown v. Redwyne, 16 
 Ga. 68. 
 
 In the absence of a positive statutory pro- 
 vision, exhibits properly identified need not 
 
 be attached to the deposition in connection 
 with which they are offered in evidence; 
 Toby v. R. Co., 98 Cal. 490, 33 Pac. 550. It 
 has been held that the exhibits filed with a 
 petition form no part thereof, and cannot be 
 considered in determining its sufficiency on 
 demurrer; Pomeroy v. Fullerton, 113 Mo. 
 440, 21 S. W. 19 ; and if the exhibit is not 
 the foundation for the cause of action or of 
 the defence, it will not be considered ; Barnes 
 v. Mowry, 129 Ind. 568, 28 N. E. 535. 
 
 Documents and other things, produced by 
 a witness on cross-examination and marked 
 for identification, are not before the court 
 unless offered and admitted ; Byerley v. Sun 
 Co., 181 Fed. 138. 
 
 EXHIBITANT. A complainant in articles 
 of the peace. 12 Ad. & E. 599. 
 
 EXHIBITION. In Scotch Law. An action 
 for compelling the production of writings. 
 See Discovery. 
 
 EXHUMATION. The exhumation of a 
 body should be ordered, if at all, only on a 
 strong showing that, without its examina- 
 tion, a fraud is likely to be accomplished 
 which an insurance company has exhausted 
 every other legal means of exposing; Gran- 
 ger's Life Ins. Co. v. Brown, 57 Miss. 308, 34 
 Am. Rep. 446. Disinterment may be com- 
 pelled by public authorities whenever condi- 
 tions become such as that the public health 
 is threatened, or in the interest of justice; 
 Gray v. State, 55 Tex. Cr. R. 90, 114 S. W. 
 635, 22 L. R. A. (N. S.) 513; or for the pur- 
 pose of ascertaining whether a crime has 
 been committed ; People v. Fitzgerald, 105 
 N. Y. 146, 11 N. E. 37S, 59 Am. Rep. 483 ; or 
 where an examination may disclose facts 
 which prove an accused person innocent of 
 crime; Gray v. State, 55 Tex. Cr. R. 90, 114 
 S. W. 635, 22 L. R. A. (N. S.) 513. 
 
 Such an order was refused in Moss v. 
 State, 152 Ala. 30, 44 South. 598, because it 
 appeared that two reputable physicians, 
 available at the trial, had examined the body 
 before burial. There is said to be no law re- 
 quiring a court, at the prisoner's request, 
 but at the expense of the state, to order the 
 body to be exhumed in order to furnish him 
 with evidence; Salisbury v. Com., 79 Ky. 
 425. In Com. v. Grether, 204 Pa. 203, 53 Atl. 
 753, the court refused to set aside a convic- 
 tion of murder in the first degree because 
 the district attorney and not the coroner had 
 caused the body to be exhumed. In an in- 
 surance case, exhumation was ordered, to 
 obtain evidence bearing on the question of 
 suicide ; the marshal was directed to exhume 
 the body and the court appointed a patholo- 
 gist and a chemist to make the examination ; 
 it was held, also, that such order could be 
 made only in a case where the widow was a 
 party ; Mutual Life Ins. Co. of New York v. 
 Griesa, 156 Fed. 398. The right to make the 
 order, in an insurance case, was recognized 
 in People v. Fitzgerald, 105 N. Y. 146, 11 N.
 
 EXHUMATION 
 
 1155 
 
 EXONERATION 
 
 E. 378, 59 Am. Rep. 483; Grangers Life Ins. 
 Co. v. Brown, 57 Miss. 308, 34 Am. Rep. -1 W; 
 but in the latter ease the order was refused 
 on the ground of delay. See 22 L. R. A. (X. 
 S.) 513, note. 
 
 EXIGENDARY. In English Law. An offi- 
 cer who makes out exigents. 
 
 EXIGENT, EXIGI FACIAS. See Out- 
 lawry; Com. v. Hagerman, 2 Va. Gas. 244; 
 Fitzh. N. B. 23G; Rawle, Exmoor 55. See 
 Appeal of Coleman, 75 Pa. 456. 
 
 EXIGENT LIST. A phrase used to indi- 
 cate a list of cases set down for hearing up- 
 on various incidental and ancillary motions 
 and rules. 
 
 EXIGENTER. An officer who made out 
 exigents and proclamations. Cowell. The 
 office is now abolished. Holthouse. 
 
 EXIGIBLE. Demandable; that which may 
 be exacted. 
 
 EXILIUM (Lat.). In Old English Law. 
 Exile. Setting free or wrongly ejecting 
 bond-tenants. Waste is called exilium when 
 bondmen (servi) are set free or driven 
 wrongfully from their tenements. Co. Litt. 
 536. Destruction; waste. Du Cange. Any 
 species of waste which drove away the in- 
 habitants, into exile, or had a tendency to 
 do so. Bac. Abr. Waste (o) ; 1 Reeve, Hist. 
 Eng. Law 386. 
 
 EX 1ST I MAT 10 (Lat). The reputation of 
 
 a Roman citizen. The decision of arbiters. 
 
 Vicat, Voc. Jur.; 1 Mackeldey, Civ. Law § 
 123. 
 
 EXISTING. The force of this word is 
 not necessarily confined to the present. 
 Thus a law for regulating "all existing rail- 
 road corporations" extends to such as are 
 incorporated after as well as before its pas- 
 sage, unless exception is provided in their 
 charters; Indianapolis & St. L. R. Co. v. 
 Blackman, 63 111. 117; Lawrie v. State, 5 
 Ind. 525 ; Fox v. Edwards, 38 la. 215. 
 
 EXIT WOUND. The wound made in com- 
 ing out by a weapon which has passed 
 through the body or any part of it. 2 Beck. 
 Med. Jur. 119. 
 
 EX IT US (Lat.). An export duty. Issue, 
 child, or offspring. Rent or profits of land. 
 
 In Pleading. The issue or the end, ter- 
 mination or conclusion, of the pleadings; 
 so called because an issue brings the plead- 
 ings to a close. 3 Bla. Com. 314. 
 
 EX LEX (Lat). An outlaw. Spelman, 
 Gloss. 
 
 EXOINE. In French Law. An act or in- 
 strument in writing which contains the rea- 
 sons why a party iu a civil suit, or a person 
 accused, who has been summoned, agreeablj 
 to the requisitions of a decree, does not ap- 
 pear. Pothier, Prodd. (J rim., s. 3, art. 3. 
 See Essoin. 
 
 EXONERATION. The taking off a burden 
 or duty. The usual use uf the word is in 
 the rule in the distribution of an 
 estate that the debts which he Liims.-li" con- 
 tracted and for which he mortgaged his land 
 as security, shall he paid out of the 
 estate in exoneration of the real. 
 
 But when the real esta I with 
 
 the payment of a ui" i the tin. 
 
 Intestate buys.it, and the pui made 
 
 subject to it, the personal estate is uot in 
 that case to be applied iu exoneration of the 
 real estate; 2 Pow. Mortg. 780; Hurt v. 
 Reeves, 5 Hayw. (Tenn.) 67; Duke of i 
 berland v. Codrington, 3 Johns. Ch. (N. \.< 
 229, 8 Am. Dec. 492; 1 Lead. Cas. in Eq. 
 n. *646; Appeal of Hirst, 92 Pa. 40L 
 
 But the rule for exonerating the real es- 
 tate out of the personal does not apply 
 against specific or pecuniary legatees, nor 
 the widow's right to paraphernalia, and, 
 with reason, not against the interest of 
 itors; 2 Ves. 64 ; 1 P. Wins. 693; 3 id. 367. 
 See 26 Beav. 522; Appeal of Clery, 36 Pa. 
 54; ('.infield v. Bostwick, 21 Conn. 550. 
 
 Like the right of contribution between 
 those equally liable for the same debt, the 
 right of exoneration exists between debtors 
 successively liable. A surety who dis< •: 
 an obligation is entitled to look to the prin- 
 cipal for reimbursement, and to invoke the 
 aid of a court of equity for this purpose, 
 and a subsequent surety, who, by the terms 
 of the contract, is responsible only in the 
 case of the default of the principal and a 
 prior surety, may claim exoneration at the 
 hands of either; Bisph. Eq. § 331; 3 Pom. 
 Eq. Jur. § 1416. 
 
 As to exoneration of simple contract debts, 
 see 1 Sm. L. Cas., 9th Am. ed. 614. 
 
 EXONERETUR (Lat.). In Practice. A 
 short note entered on a bail-piece, that the 
 bail is exonerated or discharged in conse- 
 quence of having fulfilled the coudition of his 
 obligation, made by order of the court or of 
 a judge upon a proper cause being shown. 
 Seo Recognizance. 
 
 EXPATRIATION. The voluntary act of 
 abandoning one's country and becoming the 
 citizen or subject of anoth 
 
 The right of expatriation is the right of a 
 person to transfer his allegiance from the 
 country of which he is a citizen to another 
 country. 
 
 This right has been much discussed. Tin- 
 question has been settled iu the United 
 States by the act of July 27. 1868, which de- 
 clares the right of expatriation to be the In- 
 herent right of all people, disavows the claim 
 made by foreign states that naturalized 
 American citizens are still the Bubjecl 
 SUCh states, and extends to such naturalized 
 Citizens, while in foreign countries, the s.une 
 protection accorded to native-born citizens. 
 K. s. g$ 1999, 2000. This declaration compre- 
 hends our own citizens as well as those of
 
 EXPATRIATION 
 
 1156 
 
 EXPECTANCY 
 
 other countries ; 14 Op. Att'y. Gen. 295. Since 
 the passage of this act, the United States 
 has entered into treaties with nearly all the 
 nations of Europe by which the contracting 
 powers mutually concede to subjects and 
 citizens the right of expatriation on condi- 
 tions and under qualifications. And in case 
 of conflict between the above act of congress 
 and any treaty, it would seem the treaty 
 must be held paramount ; Morse, Citizenship 
 § 179. See Treaty. To be legal, the expa- 
 triation must be for a purpose which is not 
 unlawful nor in fraud of the duties of the 
 emigrant at home. 
 
 Most foreign governments permit their cit- 
 izens to become naturalized in other coun- 
 tries, but generally upon condition of the 
 prior fulfilment of military service. Hershey 
 243-244. In Switzerland the consent of the 
 canton is required, and a like rule exists in 
 Japan; Meilli, Intern. C. & C. 121. 
 
 A citizen may acquire in a foreign coun- 
 try commercial privileges attached to his 
 domicil, and be exempted from the operation 
 of commercial acts embracing only persons 
 resident in the United States or under its 
 protection. See Dohictl; Naturalization. 
 See also Miller, Const. U. S. 2S5, 297 ; Mur- 
 ray v. The Charming Betsy, 2 Cra. (U. S.) 
 120, 2 L. Ed. 208; 2 Kent 36; Grotius, b. 2, 
 e. 5, s. 24; Puffendorff, b. 8, c. 11, ss. 2, 3; 
 Vattel, b. 1, c. 19, ss. 218, 223, 224, 225 ; U. S. 
 v. Gillies, 1 Pet. C. C. 161, Fed. Cas. No. 15,- 
 206 ; Ainslie v. Martin, 9 Mass. 461 ; 21 Am. 
 L. Reg. 77 ; 11 id. 447 ; 3 Can. L. T. 463, 511 ; 
 25 Law Mag. & Rev. 124 ; Lawrence's Wheat. 
 Int. L. 891. 
 
 By act of March 2, 1907, a citizen who is 
 naturalized in any foreign state is expatri- 
 ated; also a naturalized citizen who has re- 
 sided two years in his native state or five 
 years in any other foreign state, except up- 
 on presenting satisfactory evidence to a dip- 
 lomatic or consular agent under the rules of 
 the state department, and no citizen can be 
 expatriated in time of war. 
 
 A Pennsylvania court, following her con- 
 stitution framed by Franklin, first declared 
 the right of expatriation an original and in- 
 defeasible right of man. Baldwin's Modern 
 Political Institutions 241, citing Murray v. 
 McCarty, 2 Munf. (Va.) 393; Wharton's 
 State Trials 652. 
 
 For the doctrine of the English courts on 
 this subject, see 1 Barton, Conv. 31, note; 
 Vaugh. 227, 281 ; 7 Co. 16 ; Dy. 2, 224, 298 B, 
 300 b; 2 P. Wms. 124; 1 Hale, PI. Cr. 68; 1 
 Wood, Conv. 382; Westl. Priv. Int. Law; 
 Story, Confl. Laws; Cockburn, Nationality. 
 See Alien; Naturalization. 
 
 EXPECTANCY. Contingency as to pos- 
 session. That which is expected or hoped 
 for. Frequently used to imply an estate in 
 expectancy. 
 
 Estates are said to be in possession when the per- 
 con having the estate is in actual enjoyment of 
 ♦hat in which his estate subsists, or in expectancy, 
 
 when the enjoyment is postponed, although the es- 
 tate or interest has a present legal existence. 
 
 A bargain in relation to an expectancy is, 
 in general, considered invalid, unless the 
 proof of good faith is strong; 2 Ves. 157; 1 
 Bro. C. C. 10; Jeremy, Eq. Jur. 397; Mc- 
 Call's Adm'r v. Hampton, 98 Ky. 166, 32 S. 
 W. 406, 33 L R. A. 266, 56 Am. St. Rep. 335. 
 
 But it is well settled in equity that a deed 
 which purports to convey property, which 
 is in expectancy or to be subsequently ac- 
 quired, or which is not the subject of grant 
 at law, though inoperative as a grant or con- 
 veyance, will be upheld as an executory 
 agreement, and enforced according to its in- 
 tent, if supported by a valid consideration, 
 whenever the grantor is in a condition to 
 give it effect; per Strong, J., in Bayler v. 
 Com., 40 Pa. 37, 43, 80 Am. Dec. 551; 
 Varick v. Edwards, 11 Paige (N. Y.) 290; 
 McWilliams v. Nisly, 2 S. & R. (Pa.) 507, 
 7 Am. Dec. 654; Bailey v. Hoppin, 12 R. I. 
 560, 508 ; 10 H. L. Cas. 189, 211 ; East Lewis- 
 burg Lumber & Mfg. Co. v. Marsh, 91 Pa. 96 ; 
 Ruple v. Bindley, id. 296 ; Fritz's Estate, 160 
 Pa. 156, 28 Atl. 642 ; Hudson v. Hudson, 222 
 111. 527, 78 N. E. 917 ; Hale v. Hollon, 90 Tex. 
 427, 39 S. W. 287, 36 L. R. A. 75, 59 Am. St. 
 Rep. 819; Betts v. Harding, 133 la. 7, 109 
 N. W. 1074 ; Johnson v. Johnson, 170 Mo. 34, 
 70 S. W. 241, 59 L. R. A. 748. So it is said 
 that an estate in expectancy, though contin- 
 gent, is a fair subject of contract, and an 
 agreement by an expectant heir in respect 
 thereto, fairly made upon valuable consider- 
 ations, will be enforced in equity; Parsons 
 v. Ely, 45 111. 232; Varick v. Edwards, 1 
 Hoffm. Ch. (N. Y.) 382; McDonald v. Mc- 
 Donald, 58 N. C. 211, 75 Am. Dec. 434; a 
 mere agreement to appropriate the money 
 when received from a legacy will not operate 
 as an assignment of it; Appeal of Wylie, 92 
 Pa. 196. An executory agreement between 
 the husbands of two expectant legatees to 
 divide equally what should be left to either 
 of them has been enforced ; 2 P. Wms. 182 ; 
 2 Sim. 183. Such assignments are prohibited 
 by statute in California ; Cal. Civ. Code 700, 
 1045 ; In re .Wickersham's Estate, 138 Cal. 
 355, 70 Pac. 1076, 71 Pac. 437 ; and in Louisi- 
 ana ; Succession of Jacobs, 104 La. 447, 29 
 South. 241; and in some states have been 
 held unenforceable; thus an attempted con- 
 veyance by heirs-apparent of their interest 
 in the property of an ancestor, even with 
 the latter's consent, has been held void; 
 Wheeler's Ex'rs v. Wheeler, 2 Mete. (Ky.) 
 474, 74 Am. Dec. 421; McCall's Adm'r , v. 
 Hampton, 98 Ky. 166, 32 S. W. 406, 33 L. 
 R. A. 266, 56 Am. St. Rep. 335 ; on the ground 
 that it is essential to the legal validity of the 
 thing sold that it have an actual or poten- 
 tial existence, and that a mere possibility or 
 contingency, not founded on a right or cou- 
 pled with an interest, cannot be the subject 
 of a sale or assignment; Spears v. Spaw, 
 118 S. W. 275, 25 L. R. A. (N. S.) 436; and
 
 EXrECTANCY 
 
 1157 
 
 EXPECTANCY 
 
 on the ground that, as no one can he the 
 heir of a living person, a transaction based 
 on the idea of a future right to the succes- 
 sion of a living person is devoid of consid- 
 eration and can have no effect, notwithstand- 
 ing the agreement is valid under the law of 
 a foreign state where it was made; Cox v. 
 Von Ahlefeldt, 105 La. 543, 30 South. 175. 
 
 An assignment without consideration by a 
 married woman of an expectant interest in 
 her father-in-law's estate, which was con- 
 tingent upon her surviving her husband, in 
 order to secure her husband's indebtedness, 
 is not valid at law, although, when based 
 upon a sufficient consideration, it might be 
 enforced in equity when the interest became 
 vested in the assignor ; In re Baeder's Es- 
 tate, 224 Pa. 452, 73 Atl. 915; and see, to 
 the same effect, Bayler v. Com., 40 Pa. 37, 
 80 Am. Dec. 551. 
 
 That a grant by an expectant is simply a 
 covenant to convey; 1 P. Wms. 3S7 (Lord 
 Chancellor Hardwicke) ; McDonald v. Mo- 
 Donald, 58 N. C. 211, 75 Am. Dec. 434; and 
 that chancery will give effect to the assign- 
 ment of an expectancy or possibility, not as 
 a grant, but as a contract entitling the as- 
 signee to a specific performance as soon as 
 the assignor has the power to perform it; 
 are held too well established to be disregard- 
 ed; McDonald v. McDonald, 58 N. C. 211, 
 75 Am. Dec. 434; Philadelphia, W. & B. R. 
 Co. v. Woelpper, 64 Pa. 366, 3 Am. Rep. 596. 
 Such a sale may be enforced as against the 
 heir through the doctrine of estoppel spring- 
 ing from his covenants contained in the 
 deed of assignment; Johnson v. Johnson, 170 
 Mo. 34, 70 S. W. 241, 59 L. R. A. 74S, citing 
 Steele v. Frierson, 85 Tenn. 430, 3 S. W. 
 049; Bohon v. Bohon, 78 Ky. 408; Somes v. 
 Skinner, 3 Pick. (Mass.) 52; Robertson v. 
 Wilson, 38 N. H. 48; House v. McCormick, 
 57 N. Y. 310; Habig v. Dodge, 127 Ind. 31, 
 2.~> N. E. 1S2; followed and approved; Jer- 
 auld v. Dodge, 127 Ind. 600, 25 N. E. 180; 
 Fairbanks v. Williamson, 7 Greenl. (Me.) 
 96; Stover v. Eycleshimer, 46 Barb. (N. Y.) 
 84; Rosenthal v. Mayhugh, 33 Ohio St 155. 
 
 The general doctrine is undoubtedly to 
 treat such an assignment as a contract en- 
 forcible in equity, but Pomeroy considers it 
 inadequate; 3 Pom. Eq. Jur. § 12S7, n. 2; 
 and prefers the theory that it is an actual 
 transfer of the ownership of an equitable 
 property right which ripens into an abso- 
 lute title ; id. § 1271. 
 
 Equity will, in general, relieve a party 
 from unequal contracts for the sale or pledge 
 of expectancies, as they are in fraud of the 
 ancestor. See 2 P. Wms. 182; 2 Sim. 183, 
 192; 5 id. 524; 1 Sto. Eq. Jur. § 342. Bui 
 relief will be granted only on equitable 
 terms; for he who seeks equity must do 
 equity ; id. 
 
 In dealing with such cases, the rule ap- 
 plied by courts of equity is, as laid down in 
 Chesterfield v. Janssen, to scrutinize them 
 
 carefully according to the circumstances of 
 each ; 2 Yes. Sr. 125 ; and, if upon inade- 
 quate consideration, or otherwise fraudulent, 
 they will be relieved against and wholly or 
 partially set aside; id.; 1 L. Cas. in Eq. 77::; 
 2 Pom. Eq. Jur. § 853, and note, where the 
 cases are collected. 
 
 In a leading English case the principle is 
 thus stated: "The court will relieve 'ex- 
 pectant heirs' against bargains relaii 
 their reversionary or expectant interest in 
 cases of undervalue, of weakness due I 
 or poverty, and of the absence of ind. 
 ent advice. But all these circumst. 
 must co-exist in order to entitle them to re- 
 lief ;" L. R. 8 Ch. 4S4. In that case it was 
 held that the repeal of the usury laws in 
 England has not altered the doctrine by 
 which the court of chancery affords relief 
 against improvident and extravagant bar- 
 gains. In the opinion Lord Selborne directed 
 attention to the fact that concealment was 
 usually a feature of these cases, but agreed 
 with Lord St Leonards that it was not an 
 indispensable condition of equitable relief; 
 Sugd. Vend. & Pur., 11th ed. 316; differing, 
 as to this point, with Lord Brougham : - 
 Myl. & K. 456. The independent advice of a 
 father seems to rebut the presumption of 
 fraud; 2 App. Cas. 814; but old age or youth 
 increases it; 2 Gift 157; 4 D. J. & S 
 or poverty and ignorance; L. R. 10 Ch 
 40 Ch. D. 312. In the first of these two 
 cases, Jessel, M. R., thus defined the term 
 "expectant heir" : "The phrase is used nor. 
 in its literal meaning, but as including 
 one who has either a vested remainder, or a 
 contingent remainder in a family property, 
 including a remainder in a portion, as well 
 as a remainder in an estate, and every one 
 who has the hope of succession to the prop- 
 erty of an ancestor, either by reason of his 
 being the heir-apparent or presumptive, or 
 by reason, merely, of the expectation of a 
 devise or bequest on account of the su] 
 or presumed affection of his ancestor or re- 
 lation. More than this, the doctrine as to 
 expectant heirs has been extended to all re- 
 versioners and remaindermen. So that the 
 doctrine not only included the class men- 
 tioned, who in some popular sense might be 
 called 'expectant heirs,' but also all remain- 
 dermen and reversioners." 
 
 The principle has been held to include 
 younger sons of peers; 15 Ch. D. 679. As 
 to what is a reversionary interest for this 
 purpose, see 11 Eq. 265, 276; L. R, - 
 542; and as to what is Independent advice, 
 see in Eq. ( ''ii. in which the borrower, though 
 accompanied by a friend who was a solicitor 
 but did not act as such, or know the terms 
 of the contract, was held not to have inde- 
 pendent advice. 
 
 Undervaluation is not alone a sui':' 
 ground for setting aside a contract, convey- 
 ance, or mortgage of a reversion, otherwise
 
 EXPECTANCY 
 
 1158 
 
 EXPERTS 
 
 fair; Stat. 31 Yict. c. 4; 2 Ch. Cas. 136; 35 
 Beav. 570; 32 L. J. Ch. 201. 
 
 By the civil law, such contracts are held 
 contra bonos mores, and they are forbidden 
 in general terms; Code 2, 3, de pactis 30; 
 and in the French code it is forbidden to sell 
 the succession of a living person, even with 
 his consent; art 1600; the same is the rule 
 of the Italian code; art 1460; and of that 
 of Austria ; § 879. 
 
 As to expectancy of life, see Life Tables. 
 
 See, generally, 2 Lead. Cas. in Eq., 4th 
 Am. ed. 1530, 1559, 1605; 3 Pom. Eq. Jur. 
 ch. 8, sec. 3; Brett, L. Cas. Mod. Eq. 3d ed. 
 69, n. ; 9 Harv. L. Rev. 476 ; Catching Bab- 
 gain ; Post Obit. 
 
 EXPECTANT. Contingent as to enjoy- 
 ment 
 
 EXPEDITATI0N. A cutting off the claws 
 or ball of the fore-feet of mastiffs, to pre- 
 vent their running after deer ; a practice for 
 the preservation of the royal forests. Cart, 
 de For. c. 17; Spelman, Gloss.; Cowell. See 
 
 COTJBT OF REGABD. 
 
 EXPENDIT0RS. Paymasters. Those 
 who expend or disburse certain taxes. Es- 
 pecially the sworn officer who supervised the 
 repairs of the banks of the canals in Rom- 
 ney Marsh. Cowell. 
 
 EXPENS/E LITIS (Lat). Expenses of 
 the suit; the costs, which are generally al- 
 lowed to the successful party. 
 
 EXPERTS (Lat experti, instructed, prov- 
 ed by experience). Persons selected by the 
 court or parties in a cause, on account of 
 their knowledge or skill, to examine, esti- 
 mate, and ascertain things and make a re- 
 port of their opinions. Merlin, R&pert. 
 
 Witnesses who are admitted to testify 
 from a peculiar knowledge of some art or 
 science, a knowledge of which is requisite or 
 of value in settling the point at issue. 
 
 Persons professionally acquainted with the 
 science or practice in question. Strickl. Ev. 
 408. Persons conversant with the subject- 
 matter on questions of science, skill, trade, 
 and others of like kind. Best, Ev. § 346. 
 
 The qualification of a witness as an expert 
 is largely within the discretion of the trial 
 judge; Mutual Fire Ins. Co. of New York 
 v. Alvord, 61 Fed. 752, 9 C. C. A. 623; Bal- 
 lard v. R. Co., 126 Pa. 141, 19 Atl. 35 ; Sloco- 
 vich v. Ins. Co., 108 N. Y. 61, 14 N. E. 802 ; 
 City of Fort Wayne v. Coombs, 107 Ind. 84, 
 7 N. E. 743. Such a witness may be asked 
 whether the examination made by him was 
 superficial or otherwise ; Northern Pac. R. 
 Co. v. Urlin, 158 U. S. 271, 15 Sup. Ct. 840, 
 39 L. Ed. 977 ; he need not be engaged in his 
 profession, it is sufficient that he has studied 
 it; Tullis v. Kidd, 12 Ala. 648. 
 
 Dealers in precious stones are not compe- 
 tent to testify to the uses of imitation pre- 
 cious stones ; Lorsch v. U. S., 119 Fed. 476. 
 One who has been a practicing physician for 
 
 eigbt years is competent to testify as an ex- 
 pert whether a death was caused by arsenic, 
 thougb he never had a case of arsenical 
 poisoning; State v. Kammel, 23 S. D. 465, 
 122 N. W. 420. 
 
 Experts alone can give an opinion based 
 on facts shown by others, assuming them to 
 be true; State v. Potts, 100 N. C. 457, 6 S. 
 E. 657. 
 
 "It is not sufficient to warrant the intro- 
 duction of expert testimony that the wit- 
 ness may know more of the subject of in- 
 quiry and may better understand and ap- 
 preciate it than the jury ; but to warrant its 
 introduction, the subject of the inquiry must 
 be one relating to some trade, profession, 
 science, or art in which persons instructed 
 therein by study and experience may be sup- 
 posed to have more skill and knowledge than 
 jurors of average intelligence may generally 
 be presumed to have ; " Ferguson v. Hubbell, 
 97 N. Y. 511, 49 Am. Rep. 544 ; and not only 
 may they testify to facts but they may give 
 their opinions on them as experts ; Van 
 Wycklen v. City of Brooklyn, 118 N. Y. 429, 
 24 N. E. 179. The practical result of the rule 
 admitting such testimony is far from satis- 
 factory ; its principal defect being that such 
 witnesses are usually called because their 
 known theories are understood to support 
 the fact which the party calling them wishes 
 to prove ; Grigsby v. Water Co., 40 Cal. 405. 
 "They come," says Lord Campbell, speaking 
 of scientific witnesses, "with a bias on their 
 minds to support the cause in which they 
 are embarked, and hardly any weight should 
 be given to their evidence ; " 10 CI. & F. 154. 
 It is said to be generally safer to take the 
 judgments of unskilled jurors than the hired 
 and biassed opinions of experts ; Ferguson 
 v. Hubbell, 97 N. Y. 511, 49 Am. Rep. 544. 
 
 A jury is not bound by the opinions of ex- 
 perts on an issue of insanity ; U. S. v. Chis- 
 holm, 149 Fed. 284; Mitchell v. State, 6 Ga. 
 App. 554, 65 S. E. 326 ; but sbould form their 
 own judgment from all the proof in the 
 case ; U. S. v. Chisholm, 153 Fed. 808. It has 
 been said that they "are generally mere ar- 
 guments in behalf of the side calling them" ; 
 Ideal Stopper Co. v. Seal Co., 131 Fed. 249, 
 65 C. C. A. 436; and such testimony is fre- 
 quently characterized by the courts as of 
 little value; American Middlings Purifier Co. 
 v. Christian, 3 Bann. & A. 42, Fed. Cas. No. 
 307; King v. Cement Co., 6 Fish. 336, Fed. 
 Cas. No. 7,798 ; L. R. 6 Ch. Div. 415, n. 
 
 On the other hand, the necessity of such 
 testimony in certain classes of cases, par- 
 ticularly those involving patent law, is thus 
 set forth in 3 Rob. Pat. § 1012: 
 
 "Notwithstanding the strictures passed upon ex- 
 pert testimony by many jurists on each side of the 
 Atlantic, and the truth of the assertions by which 
 these censures have been justified, it is still certain 
 that in most patent cases expert evidence is, and 
 must always be, indispensable. That the expert is 
 consulted before he is summoned as a witness ; that 
 when his opinion is unfavorable to the party who 
 consults him he is not produced in court, at least
 
 EXPERTS 
 
 1150 
 
 EXPERTS 
 
 on that side of the case ; that when called as a 
 witness his testimony is expected to support, and 
 generally does support, the claims of the litigant on 
 whose behalf he is presented,— are no doubt true ; 
 but this is only what occurs in every other trial 
 where counsel have properly prepared their case. 
 The error lies with those who ascribe judicial func- 
 tions to the patent-expert, and demand of him such 
 freedom from partisanship as the exercise of judi- 
 cial powers requires. That there are experts in 
 other departments of affairs upon whose opinion 
 the court is forced to rely as the foundation of its 
 own judgments, because incapable of forming an 
 opinion for itself, and that such experts consequent- 
 ly fill the places of judges and should be beyond the 
 influence and control of parties, must be conceded. 
 But such is not the case with patent-experts, whose 
 opinion is received in evidence only in connection 
 with the reasons on which it is based, and is to be 
 accepted or rejected by the jury according to their 
 own view of its fallacy or truth. The patent-expert, 
 considered in his real character, is an explorer, 
 gifted with unusual powers of discernment and ap- 
 prehension ; a chronicler, trained to preserve the 
 recollection of the essential attributes of things ; an 
 expositor, fitted to embody those essential attributes 
 in accurate and intelligible language ; a monitor, 
 able to suggest the conclusions which follow from 
 the premises he has described. His relation to the 
 jury Is not unlike that which counsel sustain to the 
 court, as guides to a correct decision of the issues 
 severally confided to their judgments,— the one 
 pointing out facts and applying them in support of 
 the claims advanced by his employer, as the other 
 produces his authorities and applies them to the 
 maintenance of his claims of law." 
 
 Such assistance, it is suggested, it would 
 not be wise in any tribunal to undervalue 
 or reject ; 3 Rob. Pat. § 1012. 
 
 The fact that the opinions of experts in 
 patent cases are often diametrically opposite 
 does not necessarily discredit their testi- 
 mony but merely emphasizes the fact that 
 their opinions are to be regarded as opinions, 
 merely, and a decision rendered between 
 them; Conover v. Roach, 4 Fish. 12, Fed. 
 Cas. No. 3,125. A patent expert is in effect 
 an "auxiliary counsel" who argues upon the 
 law and the facts; Steam-Gauge & Lantern 
 Co. v. Mfg. Co., 28 Fed. G18. 
 
 The practice of introducing a large number 
 of expert witnesses in patent causes is not to 
 be commended, one competent witness on each 
 side being usually sufficient to insure a full 
 and fair elucidation of what is recondite in 
 the case; American Stove Co. v. Foundry Co., 
 15S Fed. 97S, 86 C. C. A. 1S2. While expert 
 evidence is not conclusive on the jury ; Many 
 v. Sizer, 1 Fish. 17, Fed. Cas. No. 9,050 ; and 
 is to be judged by the same standards as or- 
 dinary evidence; May v. Fond du Lac Coun- 
 ty, 27 Fed. 691; Carter v. Baker, 1 Fish. 404, 
 Fed. Cas. No. 2,472, 1 Sawyer 511': Page v. 
 Ferry, 1 Fish. 298, Fed. Cas. No. 10,662; 
 and to be accorded by the jury such weight 
 as they see fit; Johnson v. Root, 1 Fish. 351, 
 Fed. Cas. No. 7,411; Allen v. Hunter, 6 
 McLean 303, Fed. Cas. No. 225; Brooks v. 
 Jenkins, 3 McLean 432, Fed. Cas. No. 1,- 
 953; it is nevertheless of groat value in 
 patent cases; French v. Rogers, 1 Fish. 
 133, Fed. Cas. No. 5,103; Can- v. Rice, I Fish. 
 i9S, Fed. Cas. No. 2,440; Morris v. Barrett, 
 L Fish. 461, Fed. Cas. No. 9.S27 ; Parker v. 
 
 Stiles, 5 McLean 44, Fed. Cas. No. 10,749; 
 Allen v. Blunt, :: Sto. 742 
 
 v. Jenkins, 3 McLean 432, Fed. Cas. 
 No. 1,953. 
 
 It lias been held that, without explanatory 
 evidence, the defi intieipation will nut 
 
 be considered in a patent ca it is 
 
 supported by prior patents fur comp 
 machinery; pell v. MacKinnon, 14'J Fed. 205, 
 79 O. C. A. 163. 
 
 The value of such testimony d< 
 the skill, not the number; Pro..; 
 nell, 4 McLean 70, Fed. Cas. No. 1,946; and 
 is to be measured by their r< ' . S. 
 
 Annunciator v. Sanderson, 3 Blatchf. 184, 
 Fed. Cas. No. 16,790; Whipple v. Baldwin 
 Mfg. Co., 4 Fish. 29, Fed. Cas. No. 17,514; 
 Parham v. American Mfg. Co., 4 Fish. 468, 
 Fed. Cas. No. 10,713. 
 
 There are said to be two classes of p 
 experts, scientific and mechanical, each hav- 
 ing a distinct sphere. The scientific expert 
 is one familiarized by his studies and ex- 
 periments with the principles of a - 
 and qualified to understand, distinguish, and 
 explain the subject-matter and application 
 thereto of such science. His services are in- 
 voked to determine the character and scope 
 of an invention with reference to the • 
 tion of the art at the date of its production. 
 His testimony is directed to the qui 
 whether the alleged invention is the result 
 of an inventive act; whether it emhraces or 
 excludes a different invention or is substan- 
 tially the same in principle, function, or ef- 
 fect with any other. The mechanical expert 
 represents the skilled workman in his art. 
 who by practical training in it could compre- 
 hend and apply to it various instruments 
 and methods. His evidence will bear npon 
 the defence of want of novelty, prior patent, 
 inutility of the invention, or ambiguity of 
 the description in the specification of the 
 patent. One person may appear in both i a 
 pacities. 3 Rob. Pat. § 1013. See Curt. Pat 
 § 479. 
 
 Expert testimony Is admissible upon ques- 
 tions for the court as well as upon those for 
 the jury, where it can he properly applied 
 to the subject-matter of the question as the 
 construction of the patent and whether a 
 prior patent covers the same invention: ."'. 
 Rob. Tat. § 1014. In dealing with such ques- 
 tions the court is at liberty to admit expert 
 evidence, but cannot he compelled to do, so, 
 and it is not error to refuse it; id.; Lay v. 
 Stellman, 1 Fish. 487, Fed I 
 Winans v. R. Co.. 21 How. (U. S.) 88, 16 L. 
 Ed. 68 
 
 The opinions of experts are admissible to 
 Insanity ; D. S. v. Chisholm, 153 
 to prove indebtedness by the general re- 
 sults shown by books of account: Brown v. 
 1 12 Fed 1. 73 C. C. A. 187; to show 
 whether a writing is genuine or disgi 
 Pinker v. 1". s.. 151 Fed. 755, si <\ C. A 
 379; or whether a child had passed through
 
 EXPERTS 
 
 1160 
 
 EXPERTS 
 
 the full period of gestation based upon the 
 appearance of the child at the age of 13 
 months ; People v. Johnson, 70 111. App. 634 ; 
 or the cause of a death from facts stated by 
 other witnesses and without personal exami- 
 nation; State v. Kammel, 23 S. D. 465, 122 
 N. W. 420 ; but such evidence is inadmissible 
 to destroy the plain and obvious meaning of 
 a contract where the words used are plain 
 and unambiguous; Bowers Dredging Co. v. 
 U. S., 211 U. S. 176, 29 Sup. Ct. 77, 53 L. Ed. 
 136; nor is it admissible upon the question 
 of damages; Lincoln v. R. Co., 23 Wend. 
 (N. Y.) 425; Bain v. Cushman, 60 Vt 343, 
 15 Atl. 171 ; Chandler v. BUsh, 84 Ala. 102, 
 4 South. 207; nor as to whether they were 
 caused by negligence; East Tennessee, V. 
 & G. R. v. Wright, 76 Ga. 532 ; International 
 & G. N. Ry. Co. v. Kuehn, 2 Tex. Civ. App. 
 210, 21 S. W. 58; Hankins v. Watkins, 77 
 Hun 360, 28 N. Y. Supp. 867. See Opinion. 
 It has been a matter of grave discussion 
 whether an expert is bound to testify on 
 matters of opinion without extra compensa- 
 tion, the weight of decisions being that, he 
 is not bound to do so ; 1 C. & K. 25; Ex 
 parte Roelker, Sprague 276, Fed. Cas. No. 
 11,995; Dills v. State, 59 Ind. 15; Clark 
 County v. Kerstan, 60 Ark. 50S, 30 S. W. 
 1046 ; contra,, Ex parte Dement, 6 Cent. L. J. 
 11; U. S. v. Cooper, 21 D. C. 491; Buchman 
 v. State, 59 Ind. 1, 26 Am. Rep. 75 ; Dills v. 
 State, 59 Ind. 15; 6 So. Law Rev. 706. In 
 the absence of statutory authority, an expert 
 for the state cannot demand extra compensa- 
 tion, at least when not compelled to make 
 any preliminary examination or preparation, 
 or to attend and listen to the testimony; 
 Flinn v. Prairie County, 60 Ark. 204, 29 S. 
 W. 459, 27 L. R. A. 009, 46 Am. St. Rep. 168 ; 
 and when no demand is made in advance 
 for special compensation, he can recover only 
 the statutory witness fees ; Board of Com'rs 
 of County of Larimer v. Lee, 3 Colo. App. 
 177, 32 Pac. 841; Tiffany v. Iron Works, 59 
 Misc. 113, 109 N. Y. Supp. 754. When an ex- 
 pert is required to make a preliminary ex- 
 amination or to prepare specially for his tes- 
 timony, he is allowed extra compensation in 
 addition to the ordinary witness fees; Kel- 
 ler v. Harrison, 151 la. 320, 128 N. W. 851, 
 131 N. W. 53, Ann. CaS. 1913A, 300 ; Gordon 
 v. Conley, 107 Me. 286, 78 Atl. 365, 33 L. R. 
 A. (N. S.) 336; Burnett v. Freeman, 125 
 Mo. App. 683, 103 S. W. 121; Schofield v. 
 Little, 2 Ga. App. 286, 58 S. E. 666; Philler 
 v. Waukesha County, 139 Wis. 211, 120 N. 
 W. 829, 25 L. R. A. (N. S.) 1040, 131 Am. St. 
 Rep. 1055, 17 Ann. Cas. 712 ; and it has been 
 held that a physician testifying as an expert 
 comes within such rule; People v Board of 
 Sup'rs, 148 App. Div. 5S4, 132 N. Y. Supp. 
 868; but usually a physician is required to 
 give expert testimony without extra compen- 
 sation ; People v. Conte, 17 Cal. App. 771, 122 
 Pac. 450, 457; State v. Bell, 212 Mo. Ill, 111 
 S. W. 24 ; North Chicago St. R. Co. v. Zeiger, 
 
 78 111. App. 463, affirmed in 1S2 111. 9, 54 N. E. 
 1006, 74 Am. St. Rep. 157; especially when 
 the physician is attending professionally one 
 of the parties ; Anderson v. Ry. Co., 103 Minn. 
 184, 114 N. W. 744 ; Burnett v. Freeman, 134 
 Mo. App. 709, 115 S. W. 488. It is held 
 that an expert who testifies on a subject re- 
 quiring special knowledge and skill is en- 
 titled only to the statutory fee; Main v. 
 Sherman County, 74 Neb. . 155, 103 N. W. 
 1038 ; and so where a witness had knowledge 
 common to persons in a particular neighbor- 
 hood, not based on study or investigation, 
 and in spite of a special contract for extra 
 compensation ; Ramschasel's Estate, 24 Pa. 
 Super. Ct. 262. Expenses of expert witnesses 
 cannot be allowed as between the parties 
 at a rate exceeding the usual fees; [1900] 1 
 Ir. Rep. 22; Randall v. Journal Ass'n, 22 
 Misc. 715, 49 N. Y. Supp. 1064; Linforth v. 
 Gas Co., 9 Cal. App. 434, 99 Pac. 716. 
 
 Under equity rule 48 (S. C. of U. S., in 
 effect Feb. 1, 1913, 33 Sup. Ct. xxxi) , the dis- 
 trict court, in a case involving the scope or 
 validity of a patent or trade-mark, may, up- 
 on petition, order that the examination in 
 chief of the experts be set forth in affida- 
 vits and filed : Those of plaintiff within 40 
 days after the cause is at issue ; those of de- 
 fendant 20 days after plaintiff's time has 
 expired; and rebutting affidavits 15 days 
 after the time for filing the originals has ex- 
 pired. The court or a judge may direct the 
 cross-examination and any re-examination 
 before the court at the trial. If the expert 
 be not produced, the affidavit shall not be 
 used. 
 
 A statute providing for the appointment of 
 expert witnesses by the court without notice 
 to the respondent or prosecuting attorney in 
 cases of homicide was declared unconstitu- 
 tional in People v. Dickerson, 164 Mich. 148, 
 129 N. W. 199, 33 L. R. A. (N. S.) 917, Ann. 
 Cas. 1912B, 688. 
 
 In Germany expert witnesses are appoint- 
 ed by the court and are regarded as assist- 
 ants to the trial judge. The judge decides 
 whether they shall be called or not ; he may 
 inform himself from other sources upon the 
 questions raised. There are lists of experts 
 made under local laws; they are usually 
 nominated by the various trades and pro- 
 fessions. They are sworn in and need not 
 be sworn in the particular case. If the par- 
 ties have agreed upon an expert, he must 
 be examined together with others designated 
 by the judge if he so desires. 
 
 Frequently the experts furnish a written 
 opinion and are not examined. The rules 
 are the same in civil and criminal cases. 
 
 In France in civil cases each court selects 
 expert witnesses and publicly announces 
 their names. They are classified under 49 
 different categories. Usually three are ex- 
 amined ; but the parties may agree to exam- 
 ine only one. If the parties cannot a*gree 
 within three days on their choice of the ex-
 
 EXPERTS 
 
 1161 
 
 EXPIRY OF THE LEGAL 
 
 perts to be called, the court appoint. They 
 report in writing signed by all. If they dif- 
 fer in opinion, the grounds of difference must 
 be stated, but not the name of the dis- 
 sentient. The report need not be sworn to. 
 
 In criminal cases the experts are selected 
 by the procureur (district-attorney) or they 
 may be called by the examining magistrate 
 or the trial judge. 
 
 Lists of experts of various professions are 
 published by the official registrars of the 
 courts and are appointed by the minister of 
 justice with the advice of the presidents of 
 the courts 'and the district attorney. They 
 are entitled to ask for any fee they consider 
 due for their services, there being no fixed 
 schedule. Each profession is considered on 
 its merits. Sometimes an expert not on the 
 list may be selected by the judge. The rule 
 that there must be an uneven number of ex- 
 perts does not apply in the criminal courts. 
 
 See Opinion ; Patent ; Hypothetical 
 Question. 
 
 EXPILATION. In Civil Law. The crime 
 of abstracting the goods of a succession. 
 
 This is said not to be a theft, because the property 
 no longer belongs to the deceased, nor to the heir 
 before he has taken possession. In the common 
 law, the grant of letters testamentary, or letters of 
 administration, relates back to the time of the death 
 of the testator or intestate: so that the property of 
 the estate is vested in the executor or administrator 
 from that period. 
 
 EXPIRATION. Cessation; end: as, the 
 expiration of a lease, of a contract or stat- 
 ute. 
 
 In general, the expiration of a contract 
 puts an end to all the engagements of the 
 parties, but not to the obligations which arise 
 from the non-fulfilment of obligations creat- 
 ed during its existence. See Partnership ; 
 Contract. 
 
 The term is specially used to denote the 
 day upon which the risk of an insurance pol- 
 icy terminates. When before the expiration 
 of policies the companies agreed to "hold" 
 the policies for renewal, and after the expi- 
 ration the agent of the insured told them 
 to continue to hold them until the form could 
 be arranged, the policies were held to be in 
 force; Baker v. Assur. Co., 1G2 Mass. 358, 
 38 N. • E. 1124. Temporary insurance from 
 one day "until" a certain other date, in- 
 cludes all of the day of expiration; Thomp- 
 son v. Ins. Co., 4 Pa. Dist. R. 382. See In- 
 surance. 
 
 When a statute is limited as to time, it 
 expires by mere lapse of time, and then it 
 has no force whatever; and, if such a stat- 
 ute repealed or supplied a former statute, 
 the first statute is, ipso facto, revived by the 
 expiration of the repealing statute; Collins 
 v. Smith, G Whart. (Pa.) 294, 36 Am. Dec. 
 228; unless it appear that such was not the 
 intention of the legislature; 3 East 212; Ba- 
 con. Abr. Statute (D). 
 
 EXPIRY OF THE LEGAL. In Scotch 
 Law. The expiration of the term within 
 
 which the subject of an adjudication may be 
 redeemed on payment of the debt adjudged 
 for. Bell, Diet ; 3 Jurid. Id ed. 1107. 
 
 EXPLICATIO (Lat). In Civil Law. The 
 fourth pleading; equivalent to the sur-re- 
 joinder of the common law. Calvinus, Lex. 
 
 EXPLOSION. A sudden and rapid com- 
 bustion, causing violent expansion of the 
 air, and accompanied by a report United 
 Life, Fire & Marine Ins. Co. v. Fool 
 Ohio St 348, 10 Am. Rep. 
 
 There is no difference in ordinary use be- 
 tween "explode" and "burst" The ordinary 
 idea is that the explosion is the cause, while 
 the rupture is the effect; Evans v. In 
 44 N. Y. 151, 4 Am. Rep. 650; Mitchell v. 
 Ins. Co., 183 U. S. 42, 22 Sup. Ct 22, 46 L. 
 Ed. 74. See INSURANCE. 
 
 The insurer against fire is not liable for 
 loss or damage to a building caused by ex- 
 plosion; Hustace v. Ins. Co., 175 N. Y. 292, 
 G7 N. E. 592, 62 L. R. A. 653 ; Brigga v. Ins. 
 Co., 53 N. Y. 446; German Fire Ins. Co. v. 
 Roost, 55 Ohio St. 587, 45 N. E. 1097, 36 L. 
 R. A. 236, 60 Am. St Rep. '711 ; Heuer v. 
 Ins. Co., 144 111. 303, 33 N. E. 411, 19 D, R. 
 A. 594; Phoenix Ins. Co. v. Greer, 61 Ark. 
 509, 33 S. W. S40. See IKSUBANCH also as to 
 liability for fire caused by explosions, and 
 for explosions caused by fire; Fuje. 
 
 EXPLOSIVES. The standard form of pol- 
 icy issued by the New Ym-k fire insurance 
 companies includes benzine, benzole, dyna- 
 mite, ether, fireworks, gasoline, Greek fire, 
 gunpowder, exceeding 25 pounds in quantity, 
 nitro-glycerin, or other explosives. Blasting 
 powder is held to be included by the words 
 "other explosives" within the meaning of 
 such a policy; Penman v. Ins. Co., 216 1". S. 
 311, 30 Sup. Ct. 312, 54 L. Ed. 493; St Paul 
 Fire & Marine Ins. Co. v. Penman, 151 
 961, SI C. C. A. 151. 
 
 A person in possession of dynamite is bound 
 to exercise the highest degree of care to take 
 every reasonable precaution to prevent ex- 
 plosion; Sowers v. McManus, 214 Pa. 244, 63 
 Atl. 001. 
 
 The regulations of The Hague tribunal of 
 1S99 forbid the throwing of explosives fmin 
 us or other airships. Inasmuch as this 
 provision is only binding upon the contracting 
 powers, it is provided that, if either of the 
 nations at war form an alliance with a 
 non-contracting power, the prohibition shall 
 be null. 
 
 See Blasting ; Dangerous Goods ; Fire. 
 
 EXPORTS. Goods and merchandise 
 from one country to another. 2 M. ..v G. 155; 
 3 id. 959. 
 
 While the word crport technically includes 
 the landing in as well as the shipment to a 
 foreign country, it is often used as meaning 
 only the shipment from this country, and it 
 will be so construed when used in a suit the 
 manifest purpose of which would be defeat- 
 ed by limiting the word to its strict teehni-
 
 EXPORTS 
 
 1162 
 
 EXPRESS ASSUMPSIT 
 
 cal meaning; U. S. v. Chavez, 228 U. S. 525, 
 
 33 Sup. Ct. 595, 57 L. Ed. , where the 
 
 word is construed as used in the joint reso- 
 lution of March 14, 1912. 
 
 In order to preserve equality among t the states in 
 their commercial relations, the constitution provides 
 that "no tax or duty shall be laid on articles ex- 
 ported from any state." Art. 1," s. 9. And, to pre- 
 vent a pernicious interference with the commerce 
 of the nation, the tenth section of the first article of 
 the constitution contains the following prohibition: 
 "No state shall, without the consent of congress, 
 lay any imposts or duties on imports or exports, 
 except what may be absolutely necessary for exe- 
 cuting its inspection laws ; and the net produce of 
 all duties and imposts laid by any state on imports 
 or exports shall be for the use of the treasury of 
 the United States ; and all such laws shall be sub- 
 ject to the revision and control of the congress." 
 See Brown v. Maryland, 12 Wheat. (U. S.) 419, 6 L. 
 Ed. 67S ; Importation. 
 
 EXPOSE. A French word, sometimes ap- 
 plied to a written document containing the 
 reasons or motives for doing a thing. The 
 word occurs in diplomacy. 
 
 EXPOSE. To cast out to chance, to place 
 abroad, or in a situation unprotected ; Shan- 
 non v. People, 5 Mich. 90. 
 
 EXPOSURE OF PERSON. Such an inten- 
 tional exposure, in a public place, of the 
 naked body, as is calculated to shock the 
 feelings of chastity or to corrupt the morals. 
 
 This offence is indictable on the ground 
 that every public show and exhibition which 
 outrages decency, shocks humanity, or is con- 
 trary to good morals, is punishable at com- 
 mon law. 1 Bish. Cr. Law § 1125 ; State v. 
 Rose, 32 Mo. 560. An indecent exposure, 
 though in a place of public resort, if visible 
 by only one person, is not indictable as a 
 common nuisance. An omnibus is a public 
 place sufficient to support the indictment; 
 Clark, Cr. L. 306, n. ; 1 Den. 338; Tempi. & 
 M. 23; 2 C. & K. 933; 2 Cox, Cr. Cas. 376; 
 3 id. 1S3; Dearsl. 207. But see State v. 
 Roper, 18 N. C. 208; State v. Pepper, 68 N. 
 C. 259, 12 Am. Rep. 637. An ordinance mak- 
 ing it an offence to expose the person inde- 
 cently without reference to the intent which 
 accompanies the act, is a valid exercise of 
 police power ; City of Grand Rapids v. Bate- 
 man. 93 Mich. 135, 53 N. W. 6. 
 
 See, generally, 1 Benn. & H. Lead. Cr. Cas. 
 442; Knowles v. State, 3 Day (Conn.) 103; 
 Fowler v. State, 5 Day (Conn.) 81; State v. 
 Millard, 18 Vt. 574, 46 Am. Dec. 170; Com. 
 v. Catlin, 1 Mass. 8 ; Com. v. Sharpless, 2 S. 
 & R. (Pa.) 91, 7 Am. Dec. 632; Miller v. 
 Teople, 5 Barb. (N. Y.) 203 
 
 See Indecency. 
 
 EXPRESS. Stated or declared, as oppos- 
 ed to implied. That which is made known 
 and not left to implication. It is a rule that 
 when a matter or thing is expressed it ceas- 
 es to be implied by law ; expressum facit ces- 
 sare taciturn. Co. Litt, 183. 
 
 EXPRESS ABROGATION. A direct re- 
 peal in terms by a subsequent law referring 
 to that which is abrogated. 
 
 EXPRESS ASSUMPSIT. A direct under, 
 taking. See Assumpsit ; Action. 
 
 EXPRESS COMPANIES. Companies or- 
 ganized to carry small and valuable packag- 
 es expeditiously in such manner as not to 
 subject them to the danger of loss and dam- 
 age which to a greater or less degree attends 
 the transportation of heavy or bulky articles 
 of commerce. Southern Express Co. v. R. 
 Co., 10 Fed. 213. 
 
 A common carrier that carries at regular 
 and stated times, over fixed and regular 
 routes, money and other valuable packages, 
 which cannot be conveniently or safely car- 
 ried as common freight ; and also other arti- 
 cles and packages of any description which 
 the shipper desires or the nature of the arti- 
 cle requires should have safe and rapid 
 transit and quick delivery, transporting the 
 same in the immediate charge of its own 
 messenger on passenger steamers and ex- 
 press and passenger railway trains, which 
 it does not own or operate, but with the own- 
 ers of which it contracts for the carriage of 
 its messengers and freights ; and within 
 cities and towns or other defined limits, it 
 collects from the consignors and delivers to 
 the consignees at other places of business 
 the goods which it carries. Pacific Exp. Co. 
 v. Seibert, 44 Fed. 310. The right to use the 
 facilities afforded by a railroad depends en- 
 tirely on contract; St. Louis, I. M. & S. R. 
 Co. v. Express Co., 117 U. S. 3, 6 Sup. Ct. 
 542, 628, 29 L. Ed. 791. In St. Louis, I. M. 
 & S. R. Co. v. Express Co., 117 U. S. 1, 6 
 Sup. Ct. 542, 628, 29 L. Ed. 791 ; it was held 
 that a railroad company might make an ex- 
 clusive contract with a single express com- 
 pany, and this has been followed by many 
 state courts ; but it is held that under the 
 anti-trust laws such exclusive contract is not 
 valid ; State v. R. Co., 99 Tex. 516, 91 S. W. 
 214, 5 L. R. A. (N. S.) 783, 13 Ann. Cas. 1072. 
 
 They are common carriers ; Southern Ex- 
 press Co. v. Crook, 44 Ala. 468, 4 Am. Rep. 
 140 ; U. S. Express Co. v. Backman, 28 Ohio 
 St. 144 ; notwithstanding a declaration in 
 their bill of lading that they are not to be 
 so considered ; Bank of Kentucky v. Express 
 Co., 93 U. S. 174, 23 L. Ed. 872 ; Christenson 
 v. Express Co., 15 Minn. 270 (Gil. 208), 2 
 Am. Rep. 122. 
 
 In section 1 of the Railroad Rate Act 
 (June 29, 1906), it is provided that the term 
 "common carrier" in that act should include 
 express companies ; State v. Express Co., 171 
 Ind. 138, 85 N. E. 337, 19 L. R. A. (N. S.) 
 93, where it was said that congress has as- 
 sumed jurisdiction over interstate traffic by 
 express down to the point where the transit 
 is entirely at an end ; and a state statute re- 
 quiring such companies to make free deliver- 
 ies of parcels committed to their care was 
 held void. 
 
 The Interstate Commerce Act and its 
 amendments provide that the term "common
 
 EXPRESS COMPANIES 
 
 1103 
 
 EXPRESS COMPANIES 
 
 carrier" as used in the act shall include ex- 
 press companies; U. S. Conip. St. Stat. Supp. 
 1911, 12S5; and in an indictment of express 
 companies under that act it was held that 
 where a joint stock company did a general 
 interstate express business and had filed a 
 schedule of its rates with the Interstate 
 Commerce Commission it was a quasi corpo- 
 ration and subject to indictment as a legal 
 entity; U. S. v. Am. Express Co., 199 Fed. 
 321. 
 See Common Carriers. 
 Like all other common carriers they must 
 receive all goods offered for transportation, 
 on being paid or tendered the proper charge; 
 Jordan v. R. Co., 5 Cush. (Mass.) 69, 51 Am. 
 Dec. 44 ; and if they cannot transport them 
 within a reasonable time, must refuse them 
 or be responsible for loss caused by the de- 
 lay ; Condict v. R. Co., 54 N. Y. 500 ; Tierney 
 v. R. Co., 76 N. Y. 305 ; Illinois Cent. R. Co. 
 v. Cobb, 64 Ilh 128. They may also refuse to 
 receive dangerous articles for transporta- 
 tion; Parrot v. Wells, 15 Wall. (U. S.) 524, 
 21 L. Ed. 206 ; Boston & A. R. Co. v. Shan- 
 ly, 107 Mass. 568. 
 
 An express company insures the safe de- 
 livery of goods received at the destination, 
 if on its own route; if not, safe delivery at 
 the end of its route to the next carrier ; and 
 will be relieved only by act of God or of the 
 public enemy; Stephens & C. Transp. Co. v. 
 Tuckerman, Milligan & Co., 33 N. J. L. 543 ; 
 U. S. Exp. Co. v. Hutchins, 5S 111. 44 ; South- 
 ern Exp. Co. v. Craft, 49 Miss. 480, 19 Am. 
 Rep. 4; Babcock v. Ry. Co., 49 N. Y. 491; 
 American Exp. Co. v. Bank, 69 Pa. 394, 8 
 Am. Rep. 268 ; Hadd v. Exp. Co., 52 Vt 335, 
 36 Am. Rep. 757. 
 
 An express company may by special con- 
 tract limit its liability for the value of goods 
 lost; Oppenheimer v. Exp. Co., 69 111. 62, 18 
 Am. Rep. 596; Magnin v. Dinsmore, 62 N. 
 Y. 35, 20 Am. Rep. 442; Baldwin v. Steam- 
 ship Co., 74 N. Y. 125, 30 Am. Rep. 277; U. 
 S. Exp. Co. v. Backman, 28 Ohio St. 144; 
 except for losses due to its own negligence 
 or misconduct; Bank of Kentucky v. Exp. 
 Co., 93 U. S. 174, 23 L. Ed. S72 ; Boscowitz v. 
 Exp. Co., 93 111. 523, 34 Am. Rep. 191 ; Har- 
 vey v. R. Co., 74 Mo. 53S; Whitworth v. Ry. 
 Co., S7 N. Y. 413. A contract between an 
 express company and its messenger exempt- 
 ing it from liability for injury to him by 
 the negligence of the carrier, is valid and 
 may extend so far as to authorize the ex- 
 press company to contract with the carrier 
 against liability to the messenger; but such 
 contract will not enure to the benefit of the 
 carrier having no knowledge of it or not 
 having availed itself of it by contracting 
 with the express company; Louisville, N. A. 
 & C. Ry. Co. v. Keefer, 140 Ind. 21, 44 N. E. 
 796, 3S L. R. A. 93, 58 Am. St. Rep. 34S. 
 
 An express company is liable for damages 
 to perishable freight injured by delay: 
 Adams Exp. Co. v. Williams (Ark.) 14 S. W. 
 
 40; but a delay, to create a liability, must 
 be "an unreasonable delay which is such as 
 involves some want of ordinary care or dili- 
 gence" ; Adams Exp. Co. v. Bratton, 106 111. 
 A pp. 563. 
 
 Where it was a habit to carry large sums 
 of money for hire and keep the same for 
 several hours after its transportation i 
 called for, the liability for its lo 
 warehouseman and not as a common cai 
 President, etc., of Conway Bank v. Ex] 
 8 Allen (Mass.) 512. The liability of an ex- 
 press company as a common carrier termi- 
 nates on the safe carriage of the gooi 
 their destination and notice to the consignee; 
 Hasse v. Exp. Co., 94 Mich. 133, 53 X. W. 
 918, 34 Am. St. Rep. 328; and where goods 
 are sent C. O. D., and the consignee reJ 
 to accept them, and the shipper on notice 
 directs the company to hold them until call- 
 ed for, its liability is only that of a ware- 
 houseman; Byrne v. Fargo, 36 Misc. 54:;, 7:'. 
 N. Y. Supp. 943; but it is held that in 
 the absence of a special contract the duty 
 of the company is not completed on the 
 arrival of the goods, but includes delivery ; 
 Burr v. Exp. Co., 71 N. J. L. 263, 58 Atl. 
 609 ; or constructive delivery by notice to 
 the consignee; Rogers v. Fargo, 47 Misc. 155, 
 93 N. Y. Supp. 550; where there is such lo- 
 cal usage; Hutchinson v. Exp. Co., 03 W. Va. 
 128, 59 S. E. 949, 14 L. R. A. (N. S.) 393, 
 and note on delivery. 
 
 An express company is not denied the 
 equal protection of the laws by classifying 
 it with railroad and telegraph companies as 
 subject to the unit rule of taxation, which 
 estimates the value of the whole plant, 
 though situated in different states, as an 
 entirety, for the purpose of determining the 
 value of the property in one state; Adams 
 Exp. Co. v. Ohio State Auditor, 165 O. S. 
 194, 17 Sup. Ct 305, 41 L. Ed. 683; t'</., 166 
 U. S. 1S5, 17 Sup. Ct. 004, 41 L. Ed. 965; 
 and a state statute, requiri] a ex- 
 
 press companies to file a statement before 
 doing business and an agreement in refer- 
 ence to suits brought against them, did ii"t 
 give them a vested ri.'u to carry on bu 
 subject to the then existing laws or exempt 
 them from future legislative control; Adams 
 Exp. Co. v. State, 161 Ind. 32S. CT N. E. 1033. 
 
 Under a state statute providing that one 
 who offers to carry persons, property or mes- 
 sages is a common carrier of what he thus 
 oilers to carry, an express company offering 
 to carry money for hire is a common carrier 
 thereof; Piatt v. Le Cocq, 150 Ed. 391, 
 where it was held that the railroad commls- 
 ■s' order requiring it to receive money, 
 of which it held itself out to be a common 
 carrier, at all reasonable business hours pre- 
 ceding the departure of trains, was reason- 
 able. A state statute regulating express 
 companies by requiring equal terms to all, 
 without discrimination, does not violate the 
 XlYth amendment of the United States con-
 
 EXPRESS COMPANIES 
 
 11G4 
 
 EXPULSION 
 
 stitution; Am. Express Co. v. Express Co., 
 1G7 Ind. 292, 78 N. E. 1021. 
 
 In some states statutes relating to the 
 transportation of property by railroad com- 
 panies are applicable to express companies; 
 MacMillan v. Express Co., 123 la. 236, 98 N. 
 W. 629; but a statute prescribing the duties 
 of railroads witb reference to intersecting 
 lines relates to the mere physical connection 
 of the tracks and has no application to ex- 
 press companies; Southern Ind. Express Co. 
 v. Ex. Co., 92 Fed. 1022, 35 C. C. A. 172. 
 
 See an epitome of the law on this subject 
 at that date by Judge Redfield in 5 Am. 
 Law Reg. N. S. 1 ; and three articles on ex- 
 press companies as common carriers ; id. 449, 
 513, 648. 
 
 See Railroad; Common Carriers. 
 
 EXPRESS CONSIDERATION. A consid- 
 eration expressed or stated by the terms of 
 the contract. 
 
 EXPRESS CONTRACT. One in which the 
 terms are openly uttered and avowed at the 
 time of making. 2 Bla. Com. 443; 1 Pars. 
 Contr. 4. One made in express words. 2 
 Kent 450. See Contract. 
 
 EXPRESS COVENANTS. Those stated in 
 words more or less distinctly expressing the 
 intent to covenant. McDonough v. Mar- 
 tin, 88 Ga. 675, 16 S. E. 59, 18 L. R. A. 343. 
 
 EXPRESS TRUST. One declared in ex- 
 press terms. See Trusts. 
 
 EXPRESS WARRANTY. One expressed 
 by particular words. 2 Bla. Com. 300. The 
 statements in an application for insurance 
 are usually construed to constitute an ex- 
 press warranty. 1 Phil. Ins. 346. See War- 
 ranty. 
 
 EXPR0MISSI0 (Lat). In Civil Law. 
 
 The species of novation by which a creditor 
 accepts a new debtor, who becomes bound 
 instead of the old, the latter being released. 
 See Novation. 
 
 EXPROMISSOR. In Civil Law. The per- 
 son who alone becomes bound for the debt 
 of another, whether the latter were obligat- 
 ed or not. He differs from a surety, who is 
 bound together with his principal. Dig. 12. 
 4. 4; 16. 1. 13; 24. 3. 64. 4; 38. 1. 37. 8. 
 
 EXPROPRIATION. A taking of private 
 property for public use upon providing com- 
 pensation. Brownsville v. Pavazos, 2 Woods 
 293, Fed. Cas. No. 2,043. It corresponds to 
 the right of eminent domain in our law. 
 In Louisiana expropriation is used as is tak- 
 ing under eminent domain in most of the 
 other states. In England "compulsory pur- 
 chase" is used ; Halsbury, Laws of England. 
 
 In French Law. The compulsory realiza- 
 tion of a debt by the creditor out of the 
 lands of a debtor, or the usufruct thereof; 
 confined first to lands (if any) in hypotMque, 
 and then extending to others. Black, L. 
 Diet. 
 
 EXPULSION (Lat. expcllere, to drive 
 out). The act of depriving a member of a 
 body politic or corporate, or of a society, of 
 his right of membership therein, by the vote 
 of such body or society, for some violation 
 of his duties as such, or for some offence 
 which renders him unworthy of longer re- 
 maining a member of the same. 
 
 By the constitution of the United States, art. 1, 
 s. 5, § 2, each house may determine the rules of its 
 proceedings, punish its members for disorderly 
 behavior, and, with the concurrence of two-thirds, 
 expel a member. In the case of John Smith, a sen- 
 ator from Ohio, who was expelled from the senate 
 in 1807, the committee made a report which em- 
 braces the following points: 
 
 First. That the senate may expel a member for 
 a high misdemeanor, such as a conspiracy to com- 
 mit treason. Its authority is not confined to an 
 act done in its presence. 
 
 Second. That a previous conviction is not requi- 
 site in order to authorize the senate to expel a mem- 
 ber from their body for a high offence against the 
 United States. 
 
 Third. That although a bill of indictment against 
 a party for treason and misdemeanor has been 
 abandoned, because a previous indictment against 
 the principal party had terminated in an acquittal, 
 owing to the inadmissibility of the evidence upon 
 that indictment, yet the senate may examine the 
 evidence for themselves, and if it be sufficient to 
 satisfy their minds that the party is guilty of a high 
 misdemeanor it is sufficient ground of expulsion. 
 
 Fourth. That the fifth and sixth articles of the 
 amendments of the constitution of the United 
 States, containing the general rights and privileges 
 of the citizens as to criminal prosecutions, refer 
 only to prosecutions at law, and do not affect the 
 jurisdiction of the senate as to expulsion. 
 
 Fifth. That before a committee of the senate, 
 appointed to report an opinion relative to the honor 
 and privileges of the senate, and the facts respect- 
 ing the conduct of the member implicated, such 
 member is not entitled to be heard in his defence 
 by counsel, to have compulsory process for wit- 
 nesses, or to be confronted with his accusers. It is 
 before the senate that the member charged is en- 
 titled to be heard. 
 
 Sixth. In determining on expulsion the senate 
 is not bound by the forms of judicial proceedings 
 or the rules of judicial evidence; nor, it seems, is 
 the same degree of proof essential which is required 
 to convict of a crime. The power of expulsion 
 must, in its nature, be discretionary, and its exer- 
 cise of a more summary character. 1 Hall, .Law 
 Journ. 459, 465 ; Anderson v. Dunn, 6 Wheat. (U. S.) 
 204, 5 L. Ed. 242 ; Cooley, Const. Lim. 162. 
 
 Corporations have the right of expulsion 
 in certain cases, as such power is necessary 
 to the good order and government of corpo- 
 rate bodies; and the cases in which the in- 
 herent power may be exercised are classi- 
 fied by Lord Mansfield as follows: 1. When 
 an offence is committed which has no im- 
 mediate relation to a member's corporate 
 duty, but is of so infamous a nature as to 
 render him unfit for the society of honest 
 men; such as the offences of perjury, for- 
 gery, and the like. But before an expulsion 
 is made for a cause of this kind it is neces- 
 sary that there should be a previous convic- 
 tion by a jury according to the law of the 
 land. 2. When the offence is against his du- 
 ty as a corporator, in which case he may be 
 expelled on trial and conviction before the 
 corporation. 3. The third is of a mixed na- 
 ture, against the member's duty as a corpo-
 
 EXPULSION 
 
 1165 
 
 EXPULSION 
 
 rator, and also indictable by the law of the 
 land ; 1 Burr. 517 ; Diligent Fire Co. v. Com., 
 75 Pa. 291; Evans v. Philadelphia Club, 50 
 Pa. 107; Gregg v. Medical Society, 111 Mass. 
 185, 15 Am. Rep. 27. 
 
 The decisions of any kind of a voluntary 
 association in admitting, disciplining, sus- 
 pending or expelling members are of a quasi- 
 judicial character; the courts will not inter- 
 fere in such cases except to ascertain wheth- 
 er or not the proceeding was pursuant to 
 the rules of the society, in good faith, and 
 not in violation of the law of the land. If 
 so found, the proceeding is conclusive, like 
 that of a judicial proceeding; Connelly v. 
 Masonic Ass'n, 58 Conn. 552, 20 Atl. G71, 9 
 L. R. A. 428, 18 Am. St. Rep. 296. Upon 
 questions of doctrine and policy the society 
 is the sole and exclusive judge ; Grand 
 Lodge, K. P. v. People, 60 111. App. 550. 
 
 Rules enacted for the government of its 
 members must be conformed to by it in all 
 matters relating to the disciplining of the 
 members; Green v. Board of Trade, 174 111. 
 5S5, 51 N. E. 599, 49 L. R. A. 365; Lewis v. 
 Wilson, 121 N. Y. 284, 24 N. E. 474 ; Farmer 
 v. Board of Trade, 78 Mo. App. 557. When 
 suspension or expulsion results necessarily 
 in affecting the financial standing of the 
 complainants as well as depriving them of 
 the use of property that is common to all. 
 however insignificant its value, there is no 
 reason to deny relief by injunction ; Huston 
 v. Reutlinger, 91 Ky. 333, 15 S. W. 867, 34 
 Am. St. Rep. 225. So where it appears that 
 the complainant, unless aided by the courts, 
 will be expelled from an association for some 
 cause which under no circumstances can 
 justify his expulsion; Otto v. Tailors' Un- 
 ion, 75 Cal. 315, 17 Pac. 217, 7 Am. St. Rep. 
 156. 
 
 A mutual benefit society cannot expel a 
 member or deprive him of his rights in the 
 society without giving him notice and a full 
 opportunity to be heard in defence of the 
 charges against him, and the proceeding for 
 his expulsion must be conducted fairly ant] 
 in good faith; State v. Temperance Soc, 42 
 Mo. App. 485; Berkhout v. Royal Arcanum, 
 62 N. J. L. 103, 43 Atl. 1 ; Wachtel v. Benev. 
 Soc, 84 N. Y. 2S, 38 Am. Rep. 478 ; People v. 
 Alpha Lodge, 13 Misc. 677, 35 N. Y. Supp. 
 214, affirmed 8 App. Div. 591, 40 N. Y. Supp. 
 1147. Irregularities in the proceedings by 
 which a member was suspended will not af- 
 ford ground for relief in equity, where thej 
 were waived by the member's appearance 
 and failure to raise them before the tri- 
 bunals of the society; Slurry's Appeal, 116 
 Pa. 391, 9 Atl. 478. If the rules authorize 
 the expulsion of a member, and he is given 
 an opportunity to be heard, and the investi- 
 gation is conducted in good faith, the deci- 
 sion of the association is conclusive upon 
 the court in mandamus proceedings to com- 
 pel his restoration; Lewis v. Wilson, 121 X. 
 
 Y. 284, 24 N. E. 474; White v. Brownell, 2 
 Daly (N. Y.) 329. 
 
 It is generally held that persons who join 
 churches, seem wolent associa- 
 
 tions, or temperance soe! . voluntari- 
 
 ly submit themselves to the jurisdiction of 
 bodies, and in matters of faith and 
 individual conduct affecting their relations 
 as members thereof subject themselves to 
 the tribunals established by those bodies to 
 pass upon such questions; if | by a 
 
 decision against them, made in good faith 
 by such judicatories, they must seek their 
 redress within the organization, as provided 
 by its laws and regulations; Land! 
 bell, 79 Mo. 433, 49 Am. Rep. 2 union 
 
 v. Frost, 3 B. Monr. (Ky.) 253; Gi svenor 
 v. Society of Believers, 118 Mas 
 
 A complaining member should exhaust the 
 remedies provided by the laws of the organi- 
 zation before applying to the courts; I 
 Fraternal League of Boston v. Johnston, 12 1 
 Ga. 902, 53 S. E. 241; Beeman v. Supreme 
 Lodge, 215 Pa. 027, 04 Atl. 702; Weigand v. 
 Fraternities Order, 97 Md. 443, 55 Atl. 530; 
 but where those laws provide no remedy, 
 and the organization provides none, it be- 
 comes a question for the courts to determine 
 whether or not the member has done all that 
 could reasonably be expected of him : 
 Schneider v. Local Union No. 00, 116 La. 270, 
 40 South. 700, 5 L. R. A. (X. S.) 891, 114 Am. 
 St. Rep. 549, 7 Ann. Cas. 808. His comp 
 tory remedies against an association which 
 denies him some property right to which he 
 is entitled are the same as if he were enti- 
 tled to some right or property from a natural 
 person or a private corporation which has 
 refused to concede it. If the contingencies 
 have arisen in which the association has 
 agreed to pay him a sum of money, an ac- 
 tion may be maintained therefor as in the 
 case of any other creditor against a debtor; 
 Supreme Sitting Order of Iron Hall v. Stein. 
 120 Ind. 270, 22 N. E. 136; Supreme Lodge 
 of Ancient Order of United Workmen v. 
 Zuhlke, 129 111. 298, 21 X. B. 7S9. 
 
 See Barbour on Parties; 2 L. R. A. (N. 
 Si 7^9, n. ; By-Law; Club; Rexigious So- 
 cikty; Church; Beneficiax Society; Asso- 
 ciation; Amotion; DISFRANCHISEMENT. Tim 
 subject is treated with fulness in Thomps. 
 Corp. S06-0.".i). See State v. Chamber of 
 Commerce, 47 Wis. 670. 
 
 extension. This term Is applied among 
 merchants to signify an agreement inadi 
 tween a debtor and his creditors, by which 
 the Latter, in order to enable the former, 
 embarrassed in bis drcumstanci 
 trieve bis standing, agree to wait for a defi- 
 nite Length of time after their several claims 
 become due and payable, before they will 
 demand payment. It is often done by the 
 issue of notes of various maturities. 
 
 Among the French, a similar agreement is 
 known by the name of attermoiement. Mer- 
 lin, Rupert, mot Attermoiement.
 
 EXTENSION OF PATENT 
 
 1166 
 
 EXTENT 
 
 EXTENSION OF PATENT (sometimes 
 termed Renewal of Patent). Under the 
 earlier patent acts (1836 and 1848) a patent 
 was granted for the term of fourteen years. 
 But the law made provision that when any 
 patentee, without neglect or fault on his part, 
 had failed to obtain a reasonable remunera- 
 tion for the time, ingenuity, and expense be- 
 stowed upon the same and the introduction 
 thereof into use, he might obtain an exten- 
 sion of such patent for the term of seven 
 years longer. No extension could be granted 
 after the patent had once expired. The ex- 
 tension was intended for the sole benefit of 
 the inventor ; and where it was made to ap- 
 pear that he would receive no benefit there- 
 from, it would not be granted. The assignee, 
 grantee, or licensee of an interest in the orig- 
 inal patent retained no right in the exten- 
 sion, unless by reason of some stipulation to 
 that effect. Where any person had a right 
 to use a specific machine under the original 
 patent he still retained that right after the 
 extension. By act March 2, 1861, it was pro- 
 vided that patents should be granted for 
 the term of seventeen years and further ex- 
 tension was forbidden. Congress may still 
 extend a patent. 
 
 EXTENT. A writ, issuing from the ex- 
 chequer, by which the body, goods, and lands 
 of the debtor may all be taken at once to 
 satisfy the judgment. 
 
 It is so called because the sheriff is to cause the 
 lands to be appraised at their full extended value 
 before he delivers them to the plaintiff. Fitzh. N. 
 B. 131. The writ originally lay to enforce judg- 
 ments in case of recognizances or debts acknowl- 
 edged on statutes merchant or staple ; see stat. 13 
 Edw. I. de Mercatoribus ; 27 Edw. III. c. 9; and 
 by 33 Hen. VIII. c. 39, was extended to debts due 
 the crown. The term is sometimes used in the 
 various states of the United States to denote writs 
 which give the creditor possession of the debtor's 
 lands for a limited time till the debt be paid. Rob- 
 erts Y. Whiting, 16 Mass. 186. 
 
 Extent in aid, is an extent issued at the 
 suit or instance of a crown-debtor against a 
 person indebted to himself. This writ was 
 much abused, owing to some peculiar privi- 
 leges possessed by crown-debtors, and its use 
 was regulated by stat. 57 Geo. III. c. 117. 
 See 3 Bla. Com. 419. 
 
 Extent in chief is an extent issued to take 
 a debtor's lands into the possession of the 
 crown. 
 
 Manorial extent. A survey of a manor 
 made by a jury of tenants, often of unfree 
 men sworn to sit for the particulars of each 
 tenancy, and containing the smallest details 
 as to the nature of the service due. 
 
 These manorial extents "were made in the in- 
 terest of the lords, who were anxious that all due 
 services should be done; but they imply that other 
 and greater services are not due, that the customary 
 tenants, even though they be unfree men, owe these 
 services for their tenements, no less and no more. 
 Statements that the tenants are not bound to do 
 services of a particular kind are not very uncom- 
 mon ;" 1 Poll. & Maitl. 343. "Many admissions 
 against their own (the lords) interests the extent of 
 their manors may contain ; they suffer it to be re- 
 
 corded that a 'day's work' ends at noon, that in re- 
 turn for some works they must provide food, even 
 that the work is not worth the food that has to be 
 provided.; but they do not admit that for certain 
 causes, and for certain causes only, may they take 
 there tenements into their own hands. As a matter 
 of fact it is seldom of an actual ejectment that the 
 peasant has to complain;" id. 359. Many examples 
 of the manorial extents have been preserved in the 
 monastic cartularies and elsewhere. "Among the 
 most accessible are the Boldon Book (printed at the 
 end of the official edition of the Domesday) ; the 
 Black Book of Peterborough, the Domesday of St. 
 Paul's, the Worcester Register, the Battle Cartu- 
 lary, all published by the Camden Society ; the 
 Ramsey, Gloucester, and Malmesbury Cartularies or 
 registers published in the Rolls series ; the Burton 
 Cartulary of the Salt Society and the Yorkshire In- 
 quisitions of the Yorkshire Record Society;" id. 189. 
 
 The "extents" of manors are descriptions 
 which give the numbers and names of the 
 tenants, the size of their holdings, the legal 
 kind of their tenure and the kind and amount 
 of their service; Maitland, Material for Hist. 
 E. L. in 2 Sel. Essays in Anglo-Amer. Leg. 
 Hist. 87. 
 
 EXTENUATION. That which renders a 
 crime or tort less heinous than it would be 
 without it. It is opposed to aggravation. 
 
 In general, extenuating circumstances go 
 in mitigation of punishment in criminal cas- 
 es, or of damages in those of a civil nature. 
 
 EXTERRITORIALITY. The exemption 
 from the operation of the ordinary laws of 
 the state accorded to foreign monarchs tem- 
 porarily within the state and their retinue, 
 to diplomatic agents and the members of 
 their household, to consuls in non-Christian 
 states, and to foreign men of war in port. 1 
 Opp. 460-469. See Ambassador; Conflict 
 of Laws ; Privilege from Arrest. 
 
 EXTINGUISHMENT. The destruction of 
 a right or contract. The act by which a con- 
 tract is made void. The annihilation of a 
 collateral thing or subject in the subject it- 
 self out of which it is derived. Prest. Merg. 
 9. For the distinction between an extin- 
 guishment and passing a right, see 2 Sharsw. 
 Bla. Com. 325. 
 
 An extinguishment may be by matter of 
 fact and by matter of law. It is by matter 
 of fact either express, as when one receives 
 satisfaction and full payment of a debt and 
 the creditor releases the debtor; Jackson v. 
 Shaffer, 11 Johns. (N. Y.) 513; or implied, 
 as when a person hath a yearly rent out of 
 lands and becomes owner, either by descent 
 or purchase, of the estate subject to the 
 payment of the rent, and the latter is ex- 
 tinguished; Martin v. Searcy, 3 Stew. (Ala.) 
 50, 20 Am. Dec. 64; but the person must 
 have as high an estate in the land as in the 
 rent, or the rent will not be extinct; Co. 
 Litt. 147 b. 
 
 There are numerous cases where the claim 
 is extinguished by operation of law : for ex- 
 ample where two persons are jointly but not 
 severally liable for a simple contract-debt, a 
 judgment obtained against one is at common
 
 EXTINGUISHMENT 
 
 1167 EXTINGUISHMENT OF WAYS 
 
 law an extinguishment of the claim on the 
 other debtor; Willings v. Consequa, 1 Pet. C. 
 €. 301, Fed. Cas. No. 17,767; Tom v. Good- 
 rich, 2 Johns. (N. Y.) 213. 
 
 A conveyance of mortgaged land by the 
 mortgagor to the mortgagee extinguishes the 
 mortgage; Lyman v. Gedney, 114 111. 388, 29 
 N. E. 282, 55 Am. Rep. 871. Taking a note 
 for the amount due does not deprive a claim- 
 ant of his right to a lien, but merely sus- 
 pends its enforcement until the note is pay- 
 able; Keogh Mfg. Co. v. Eisenberg, 7 Misc. 
 79, 27 N. Y. Supp. 356. 
 
 See Co. Litt. 147 6; Morris v. Brady, 5 
 Wlmrt. (Pa.) 541; Derby Bank v. Landon, 3 
 Conn. 62; Jackson v. Shaffer, 11 Johns. (N. 
 Y.) 513; Cattel v. Warwick, <: X. J. L. 190; 
 McMurphy v. Minot, 4 N. H. 251; Caldwell 
 v. Fulton, 31 Pa. 475, 72 Am. Dec. 760; Bos- 
 ton & P. R. Corp. v. Doherty, 154 Mass. 314, 
 28 N. E. 277; Fitzpatrick v. 11. R., S4 Me. 
 33, 24 Atl. 432; Sowles v. Witters, 54 Fed. 
 568 ; I. Smith & Son Co. v. Parsons, 37 Neb. 
 677, 56 N. W. 326. 
 
 EXTINGUISHMENT OF COMMON. Loss 
 of the right to have common. This may hap- 
 pen from various causes ; by the owner of 
 the common right becoming owner of the 
 fee;"by severance from the land; by release; 
 by approvement; 2 Steph. Com. 41; Co. Litt. 
 280 ; 1 Bacon, Abr. 628 ; Cro. Eliz. 594. 
 
 EXTINGUISHMENT OF COPYHOLD. 
 
 This takes place by a union of the copyhold 
 and freehold estate in the same person ; also 
 by an act of the tenant showing an intention 
 not to hold any longer of his lord ; Hutt. 81 ; 
 Cro. Eliz. 21 ; Wms. R. P. 2S7 ; Watk. Copyh. 
 
 EXTINGUISHMENT OF A DEBT. De- 
 struction of a debt. This may be by the 
 creditor's accepting a higher security ; 1 
 Salk. 304; Davidson v. Kelly, 1 Md. 492; 
 Brewer v. Branch Bank, 24 Ala. 439. A 
 judgment recovered extinguishes the original 
 debt; Gibbs v. Bryant, 1 Pick. (Mass.) 118. 
 A trust deed given to secure the payment of 
 a bond is not affected by the rendition of a 
 judgment on the bond, since the original 
 debt is not thereby merged, but only the 
 form of the evidence of the debt charged ; 
 Gibson v. Green's A.lm'r, SO Ya. 524, 16 S. 
 E. 661, 37 Am. St. Rep. 8SS. A debt evidenc- 
 ed by a note may be extinguished by a sur- 
 render of the note; Bryant v. Smith, 10 
 Cush. (Mass.) 169; Albert's Ex'rs v. Zieg- 
 ler's Ex'rs, 29 Pa. 50; Sherman v. Sherman, 
 3 Ind. 337. As to the effect of payment in 
 extinguishing a debt, see PAYMENT. 
 
 EXTINGUISHMENT OF RENT. A de- 
 struction of the rent by a union of the title 
 to the lands and the rent in the same person. 
 Tcnncs de la Ley; Cowell ; 3 Sharsw. Bla. 
 Com. 325, note. A ground rent in Pennsyl- 
 vania is usually extinguished by a convey- 
 ance thereof from the owner of the ground 
 rent to the terre-tenant. 
 
 EXTINGUISHMENT OF WAYS. Destruc- 
 tion of a right of way. effected usually by a 
 purchase of the close over which it lies by 
 the owner of the right of way. 2 Washb. 
 R. P. 
 
 EXTORSIVELY. A technical word 
 in indictments for extortion. 
 
 When a person i- charged with • 
 ly taking, the very import of the word Bhows 
 that he is not acquiring f his 
 
 own; 4 Cox, Cr. Cas. ::s7. In North I 
 Una the crime may be charged without using 
 this word ; State v. Dickens, 2 N. C. 4 
 
 EXTORTION. • The unlawful taking by 
 any officer, by color of his office, of any 
 ey or thing of value that is not due to him, 
 or more than is due, or before it is d 
 Bla. Com. Ml; ('(.in. v. Saulsbury, 152 Pa. 
 554, 25 Atl. 610; 1 Hawk. I>1. l 
 1 Russ. Cr.* 144; 2 Bish. Cr. L. 390; 0. 
 1 1": i Nir, 14 Fed. 595. 
 
 At common law, any oppression by color 
 of right; but technically the taking of 
 ey by an officer, by reason of his oflice, where 
 none at all was due, or when it was not yet 
 due. The obtaining of money by force or 
 fear is not extortion; People v. Ban 
 01 Hun 571, 16 N. Y. Supp. 436 ; Whart. Cr. 
 L. S:::'.. 
 
 In a large sense the term includes any oppression 
 under color of right ; but it is generally and con- 
 stantly used in the more limited technical sense 
 above given. 
 
 The incumbent of an office, which it was 
 attempted to create by an unconstitu: 
 statute, cannot be guilty of extortion, as he 
 is neither a de jure nor a de facto officer ; 
 Kitby v. State, 57 N. J. L. 320, 31 Atl. 21::. 
 
 To constitute extortion, there must be the 
 receipt of money or something of value; the 
 taking a promissory note which is void is not 
 sufficient to make an extortion ; Com. v. 
 Cony, 2 Mass. 52:J ; Com. v. Pease, 16 Mas-. 
 93. See Bacon, Abr.; Co. Litt. 168. It 
 tortion and oppression for an officer to take 
 money for the performance of his dot;- . 
 though it be in the exercise of a (lis. 
 ary power; 2 Burr. '.'JT. See Pee; 
 Whaley, 6 Cow. 661; Helser v. Tott. •". Pa. 
 183; Com. v. Saulsbury, 152 Ta. 654, 25 AtL 
 610; Com. v. Bagley, 7 Pick. (Mass.) 279; 
 4 Cox. Cr. Cas. 387. See Brackenrid 
 
 State. 27 Tex. App. 513. 11 S. W. 630, I I.. 
 
 i;. a 360; People v. Barondess, 133 X. Y. 
 049, 31 X. B. 240. 
 
 EXTRA-DOTAL PROPERTY. In Louisi- 
 ana this term designates that property which 
 forms no part of the dowry of a woman, 
 and which is also called paraphernal pi 
 ly. ClV. Code, art. 2 
 
 EXTRA-JUDICIAL. That which does not 
 belong to the judge or his jurisdiction, not- 
 withstanding which he takes cognizance of it. 
 Bxtra-judicial judgments and acts are 
 lutely void. See Coram Nor Judick; Merlin, 
 rt., frees de Pouvoir.
 
 EXTRA QUATUOR MARIA 
 
 11G8 
 
 EXTRADITION 
 
 EXTRA QUATUOR MARIA (Lat. beyond 
 four seas). Out of the realm. 1 Bla. Com. 
 157. See Beyond Sea. 
 
 EXTRA SERVICES. When used with ref- 
 erence to officers it should be construed to 
 embrace all services rendered by such for 
 which no compensation is given by law. 
 Board of Com'rs of Miami Co. v. Blake, 21 
 Ind. 32. 
 
 EXTRA TERRITORIUM. Beyond or out- 
 side of the territorial limits of a state. Milne 
 v. Moreton, 6 Binn. (Pa.) 353, 6 Am. Dec. 466. 
 
 EXTRA VIAM. Out of the way. When, 
 in an action of trespass, the defendant 
 pleads a right of way, the defendant may re- 
 ply extra viam, that the trespass was com- 
 mitted beyond the way, or make a new as- 
 signment. 16 East 343, 349. 
 
 EXTRACT. Apart of a writing. In gen- 
 eral, an extract is not evidence, because the 
 ivhole of the writing may explain the part 
 extracted, so as to give it a different sense; 
 but sometimes extracts from public books 
 are evidence, as extracts from the registers 
 of births, marriages, and burials, kept ac- 
 cording to law, when the whole of the mat- 
 ter has been extracted which relates to the 
 cause or matter in issue. 
 
 EXTRADITION. (Lat. ex, from, traditio, 
 handing over) . The surrender by one sover- 
 eign state to another, on its demand, of per- 
 sons charged with the commission of crime 
 within its jurisdiction, that they may be 
 dealt with according to its laws; the sur- 
 render of persons by one federal state to an- 
 other, on its demand, pursuant to their fed- 
 eral constitution and laws. 
 
 Without treaty stipulations. Public ju- 
 rists are not agreed as to whether extradi- 
 tion, independent of treaty stipulations, is a 
 matter of imperative duty or of discretion 
 merely. Some have maintained the doctrine 
 that the obligation to surrender fugitive 
 criminals is perfect, and the duty of fulfill- 
 ing it is, therefore, imperative, especially 
 where the crimes of which they are accused 
 affected the peace and safety of the state ; 
 but others regard the obligation as imperfect 
 in its nature, and a refusal to surrender 
 such fugitives as affording no ground of of- 
 fence. Of the former opinion are Grotius, 
 Heineccius, Burlamaqui, Vattel, Rutherforth, 
 Schmelzing, and Kent; the latter opinion is 
 maintained by Puffendorf, Voet, Martens, 
 Kliiber, Leyser, Kluit, Saalfeld, Schmaltz, 
 Mittermeyer, Heffter, and Wheaton. 
 
 Except under the provisions of treaties, 
 the delivery by one country to another of 
 fugitives from justice is a matter of comity, 
 not of obligation; U. S. v. Rauscher, 119 U. 
 S. 407, 7 Sup. Ct. 234, 30 L. Ed. 425. 
 
 Many nations have practised extradition 
 without treaty engagements to that effect, 
 as the result of mutual comity and conven- 
 ience; others have refused. The United 
 
 States has always declined to surrender 
 criminals unless bound by treaty to do so; 
 1 Kent 39 n. ; 1 Opin. Attys. Gen. 511 ; 6 
 id. 85, 431 ; People v. Curtis, 50 N. Y. 321, 10 
 Am. Rep. 483 ; Holmes v. Jennison, 14 Pet 
 (U. S.) 540, 10 L. Ed. 579; Ex parte Holmes, 
 12 Vt. 631. The existence of an extradition 
 treaty does not prohibit the surrender by ei- 
 ther country of a person charged with a 
 crime not enumerated in the treaty; Ex 
 parte Foss, 102 Cal. 347, 36 Pac. 669, 25 L. 
 R. A. 593, 41 Am. St. Rep. 182. No state 
 has an absolute right to demand of another 
 the delivery of a fugitive criminal, though 
 it has what is called an imperfect right, but 
 a refusal to deliver the criminal is no just 
 cause of war. Per Tilghman, C. J., in Com. 
 v. Deacon, 10 S. & R. (Pa.) 125. 
 
 Under treaty stipulations. The sovereign- 
 ty of the United States, as it respects foreign 
 states, being vested by the constitution in 
 the federal government, it appertains to it 
 exclusively to perform the duties of extradi- 
 tion which, by treaties, it may assume; 
 Holmes v. Jennison, 14 Pet. (U. S.) 540, 10 
 L. Ed. 579 ; U. S. v. Rauscher, 119 U. S. 407, 
 7 Sup. Ct. 234, 30 L. Ed. 425 ; and, to enable 
 the executive to discharge such duties, con- 
 gress passed the acts of Aug. 12, 1848, July 
 12, 1889, and June 6, 1900. The general gov- 
 ernment alone has the power to enact laws 
 for tbe extradition of foreign criminals. It 
 possesses that power under the treaty power 
 in the constitution; Holmes v. Jennison, 14 
 Pet. (U. S.) 540, 10 L. Ed. 579; People v. 
 Curtis, 50 N. Y. 321, 10 Am. Rep. 483 ; In re 
 De Giacomo, 12 Blatch. 391, Fed. Cas. 3,747. 
 
 While a violation of an extradition treaty 
 with Italy might render the treaty denounce- 
 able by the United States, it does not ren- 
 der it void and of no effect. The refusal of 
 Italy to surrender its nationals has not had 
 the effect of abrogating the treaty but of 
 merely placing the government in the posi- 
 tion of having the right to denounce it; 
 Charlton v. Kelly, 229 U. S. 447, 33 Sup. Ct. 
 945, 57 L. Ed. . 
 
 In the absence of a treaty, it has been 
 said the president has no power as well as 
 no duty to surrender a fugitive; Ex parte 
 McCabe, 46 Fed. 363, 12 L. R. A. 589. As 
 to whether congress has this power was said 
 in Neely v. Henkel, 180 U. S. 109, 21 Sup. Ct. 
 302, 45 L. Ed. 448, to be an undecided ques- 
 tion. It was there said to be competent for 
 congress to enforce or give efficacy to the 
 provisions of the treaty between the U. S. 
 and Spain with respect to Cuba, and that 
 the act of June 6, 1900, providing for the 
 extradition of criminals in certain cases "to 
 foreign countries or territories" occupied by 
 or under the control of the United States 
 was constitutional. See 14 Harv. L. Rev. 
 607. 
 
 Treaties have been made between the Unit- 
 ed States and many foreign powers for the
 
 EXTRADITION 
 
 11G9 
 
 EXTRADITION 
 
 mutual surrender of persons charged with 
 certain crimes. These treaties may be found 
 in full in the United States Statutes at 
 Large, in 2 Moore on Extradition 1072; Ilas- 
 well, Treaties, etc., U. S. ; see 4 Moore, Int. 
 L. Dig. 
 
 The United States interstate extradition 
 laws extend to Porto Rico; People v. Bing- 
 ham, 211 U. S. 4GS, 29 Sup. Ct. 190, 53 L. Ed. 
 28G; and to any portion of the country not 
 within the limits of a state, but organized 
 under the laws of congress, with an execu- 
 tive, legislative and judicial system of its 
 own ; In re Lane, 135 U. S. 443, 10 Sup. Ct 
 7G0, 34 L. Ed. 219; this does not include the 
 Cherokee Nation ; Ex parte Morgan, 20 Fed. 
 298, approved in People v. Bingham, 211 U. 
 S. 4G8, 29 Sup. Ct. 190, 53 L. Ed. 28G; nor 
 (at that time) Oklahoma ; In re Lane, 135 
 U. S. 443, 10 Sup. Ct. 7G0, 34 L. Ed. 219. 
 
 The general principle of international law 
 is that in all cases of extradition the act 
 done on account of which extradition is de- 
 manded must be considered a crime by both 
 countries. For nearly all crimes, the laws of 
 the states, and not the enactments of con- 
 gress, must be looked to for the definition of 
 the offence ; Wright v. Ilenkel, 190 U. S. 40, 
 23 Sup. Ct. 781, 47 L. Ed. 94S ; Pettit v. 
 Walshe, 194 U. S. 210, 24 Sup. Ct. 657, 48 
 L. Ed. 938. Where a British fugitive was 
 demanded in New York, and the British and 
 New York statutes both covered the publica- 
 tion of fraudulent statements by corporate 
 officers, it was held that the two statutes 
 were substantially analogous under an ex- 
 tradition treaty relating to fraud by corpo- 
 rate officers; Wright v. Henkel, 190 U. S. 
 40, 23 Sup. Ct. 781, 47 L. Ed. 948. 
 
 In the construction and carrying out of 
 such treaties, the ordinary technicalities of 
 criminal proceedings are applicable only to 
 a limited extent. Proceedings for surrender 
 simply demand of the accused that he shall 
 do what all good citizens are required and 
 ought to be willing to do, viz. submit them- 
 selves to the law of their country. Care 
 should be taken that the treaty be not made 
 a pretext for collecting private debts, wreak- 
 ing individual malice, or forcing the surren- 
 der of political offenders ; but where the pro- 
 ceeding is manifestly taken in good faith, a 
 technical non-compliance with some formali- 
 ty should not be allowed to stand in the way 
 of a faithful discharge of our obligations; 
 Grin v. Shine, 187 U. S. 181, 23 Sup. Ct 98, 
 47 L. Ed. 130. 
 
 When a person is held in custody as a fugi- 
 tive from justice under an extradition war- 
 rant in proper form and showing upon its 
 face all that is required by law to he shown. 
 he should not be discharged from custody 
 until it is made clearly to appear that lie is 
 not a fugitive from justice within the mean- 
 ing of the constitution and laws of the Unit- 
 ed States ; People v. Pease, 207 U. S. 100, 2S 
 Bouv.— 74 
 
 Sup. Ct. 58, 52 L. Ed. 121 ; Ex parte Massee, 
 95 S. C. 315, 79 S. E. 97. 
 
 The extradition act of Canada pr. 
 that a pri ,11 be surrendered only 
 
 upon such evidet riminality as would, 
 
 under the Canadian law, justify his commit- 
 tal for trial If tl 
 
 in Canada. Canadian law should determine 
 whether the act alleged constituti 
 the extradition crimes; <; B, & S. 522; 4 U. 
 C. P. B. 215. The further 
 whether the act must also he shown to he a 
 crime according to the laws of the demand- 
 ing country was raised but not decided in 31 
 Can. L. J. 594. 
 
 The preliminary examination of a p 
 sought to be extradited under the tri 
 of August 9, 1842, and July 12, (ween 
 
 the United States and Great Britain on a 
 conviction of murder, must be had in the 
 state where he was arrested, in view of the 
 tenth article of the earlier treaty providing 
 that the alleged fugitive criminal shall bo 
 arrested and delivered up only upon such 
 evidence of criminality as, according to the 
 laws of the place where he is found, would 
 justify his arrest and commitment for trial 
 if the crime had been committed there, and 
 of the proviso in the sundry civil appropria- 
 tions act of August IS, 1894, by which it is 
 made the duty of a marshal arresting a per- 
 son charged with any offence to take him 
 before the nearest United States commis- 
 sioner, or judicial officer having jurisdiction, 
 for a hearing, commitment, or taking 
 for trial, notwithstanding those parts of the 
 act of August 12, 1848. .and of R. S. § 5270, 
 which provide for bringing the accused in ox- 
 tradition proceedings before the justice, 
 judge or commissioner who issued the war- 
 rant of arrest; Pettit v. Walshe. 194 U. S. 
 2(15, 24 Sup. Ct. 657, 48 L. Ed. 
 
 Desertion from a foreign army or navy i< 
 said not to be an extraditable offenc 
 Ilarv. L. Rev. G57 ; but in Tucker v. Alexan- 
 droff, 183 U. S. 424, 22 Sup. Ct 195, 4<; I.. 
 Ed. 264, where the provisions of the treaty 
 with Russia for the extradition of deserters 
 from ships of war and merchant vessels 
 were under consideration, it was held that 
 a deserting seaman might be extradited, 
 though the vessel to which he had been as- 
 signed was in the course of building and 
 had not yet been accepted by the Russian 
 government. 
 
 The treaties enumerate the crimes for 
 which persons may be surrendered, and in 
 some other particulars limit their own appli- 
 cation. They also contain some provisions 
 relating to the mode of procedure; but. as 
 it was doubted whether such stipulations 
 had the force of law; Park. Cr. Oas. 108; 
 congress passed the act of August 12, 
 entitled "An act for giving effect to certain 
 treaty stipulations between this and 1 
 governments for the apprehension and de- 
 livery up of certain offenders." 9 Stat L.
 
 EXTRADITION 
 
 1170 
 
 EXTRADITION 
 
 302. This has since been amended; and the 
 statutes on the subject are found in U. S. 
 R. S. §§ 5270-5277, as amended June 6, 1900. 
 
 These acts embody those provisions con- 
 tained in the treaties relating to the proce- 
 dure, and contain others designed to facili- 
 tate the execution of the duty assumed by 
 treaty. 
 
 The following are the main provisions of 
 the law relating to the practice : 1. A com- 
 plaint under oath or affirmation charging the 
 person with the commission of one of the 
 enumerated crimes. 2. A wan-ant may be 
 issued by any of the justices of the supreme 
 court or judges of the several circuit or dis- 
 trict courts of the United States, or of a 
 court of record of general jurisdiction of any 
 state, or the commissioners authorized so to 
 do by any of the courts of the United States. 
 3. The pefson arrested is to be brought be- 
 fore the officer issuing the warrant, to the 
 end that the evidence of criminality may be 
 considered. 4. Copies of the depositions up- 
 on which an original warrant in the country 
 demanding the fugitive may have been grant- 
 ed, certified under the hand of the person 
 issuing such warrant, and attested upon the 
 oath of the party producing them to be true 
 copies of the original depositions, may be 
 received in evidence of the criminality of the 
 person apprehended. 5. The degree of evi- 
 dence must be such as, according to the 
 laws of the place where the person arrested 
 shall be found, would justify his apprehen- 
 sion and commitment for trial if the crime 
 or offence had there been committed. 6. If 
 the evidence is deemed sufficient, the officer 
 hearing it must certify the same, together 
 with a copy of all the testimony taken be- 
 fore him, to the secretary of state, and com- 
 mit the prisoner to the proper gaol until the 
 surrender be made, which must be within 
 two calendar months. 7. The secretary of 
 state, on the proper demand being made by 
 the foreign government, orders, under his 
 hand and seal of office, in the name and by 
 authority of the president, the person so 
 committed to be delivered to such person 
 as may be authorized, in the name and on 
 behalf of such foreign government, to receive 
 him. 8. The demand must be made by and 
 upon those officers who represent the sover- 
 eign power of their states. 7 Op. Attys. Gen. 
 6; 8 id. 521. By act of Aug. 3, 1882, it is 
 directed that all extradition cases under 
 treaties shall be heard publicly ; 22 Stat. 215. 
 
 The usual method is for some police officer 
 or other special agent, after obtaining the 
 proper papers in his own country, to repair 
 to the foreign country, carry the case 
 through with the aid of his minister, receive 
 the fugitive, and conduct him back to the 
 country having jurisdiction of the crime; 8 
 Op. Attys. Gen. 521. In all the treaties the 
 parties stipulate upon mutual requisitions, 
 etc., to deliver up to justice all persons who, 
 being charged with crime, shall seek an 
 
 asylum or shall be found in the territories 
 of the other. The terms of the stipulation 
 embrace cases of absence without flight as 
 well as those of actual flight; 8 Op. Attys. 
 Gen. 306. 
 
 The treaties of the United States do not 
 guarantee an asylum to a fugitive from any 
 foreign country. They only provide how he 
 shall be deprived of an asylum ; Ker v. 
 Illinois, 119 U. S. 436, 7 Sup. Ct 225, 30 L. 
 Ed. 421. See as to the right of asylum 6 
 L. Mag. & Rev. 4th, 262. If the prisoner 
 escapes, he may be retaken in the same man- 
 ner as any person accused of any crime 
 against the laws in force in that part of the 
 Lnited States to which he shall so escape 
 shall be retaken on an escape; U. S. R. S. § 
 5272. The expense of the apprehension and 
 delivery shall be borne by the party making 
 the requisition. 
 
 Between the several states. By art. iv. sec. 
 ii. of the constitution of the United States, it 
 is provided that "a person charged in any 
 state with treason, felony, or other crime, 
 who shall flee from justice and be found in 
 another state, shall, on demand of the exec- 
 utive authority of the state from which he 
 fled, be delivered up to be removed to the 
 state having the jurisdiction of the crime." 
 
 The act of congress of Feb. 12, 1793, U. S. 
 R. S. §§ 5278, 5279, prescribed the mode of 
 procedure in such cases. It requires, on de- 
 mand of the executive authority of a state and 
 production of a copy of an indictment found 
 or an affidavit made before a magistrate 
 charging the person demanded with treason, 
 felony, or other crime, certified as authentic 
 by the governor or chief magistrate of the 
 state from whence the person so charged 
 fled, that the executive authority of the 
 state or territory to which such person shall 
 have fled shall cause the person charged to 
 be arrested and secured, and notice of the 
 arrest to be given to the executive authority 
 making such demand, or to the agent of such 
 authority appointed to receive the fugitive, 
 and cause the fugitive to be delivered to such 
 agent when he shall appear; but if such 
 agent do not appear within six months, the 
 prisoner shall be discharged. It further pro- 
 vides that if any person shall by force set 
 at liberty or rescue the fugitive from such 
 agent while transporting the fugitive to the 
 state or territory from which he fled, the 
 person so offending shall, on conviction, be 
 fined not exceeding five hundred dollars and 
 be imprisoned not exceeding one year, and 
 that all costs or expenses incurred in the 
 apprehending, securing, and transmitting 
 such fugitive shall be paid by the state or 
 territory making the demand. U. S. Rev. 
 Stat § 5278-9. 
 
 In the execution of the obligation imposed 
 by the constitution, the following points de- 
 serve attention : — 
 
 The crime, other than treason or felony, 
 for which a person may be surrendered.
 
 Some difference of opinion . 
 this subject, owing to some di\ >_ 
 criminal laws of the several states/ ' '■? 
 
 U7l 
 
 on 
 toe 
 
 is a 
 
 XXT Ra 
 
 
 iDi rj 
 
 ON" 
 
 better opinion appears to be that the ime/ the f^"~ >llo n of ] 
 
 of the constitution extend to all acts whi<L» Pj . '"'•' of ,/, " Mr ; >mj ft 
 
 e fapers to i^*^ 
 
 by the laws of the state where committed 
 are made criminal ; 1 Kent 42 ; Johnston 
 v. Riley, 13 Ga. 97; In re Fetter, 23 N. J. L. 
 311, 57 Am. Dec. 382; Kentucky v. Dennison, 
 2-i How. (U. S.) 107, 16 L. Ed. 717; People 
 v. Brady, 56 N. Y. 1S7. The word "crime" 
 embraces every species of indictable offence; 
 Kentucky v. Dennison, 24 How. (U. S.) 99, 
 16 L. Ed. 717 ; including an act not criminal 
 at the time the constitution was adopted but 
 made so afterwards ; Howe v. Treasurer, 37 
 N. J. L. 147 ; People v. Brady, 50 N. Y. 182 ; 
 and an act which is criminal under the law 
 of the state from which the accused has fled, 
 but is not so under the law of the state into 
 which he has fled; Kentucky v. Dennison, 
 24 How. (U. S.) 103, 16 L. Ed. 1717. 
 
 That the courts of the asylum state have 
 jurisdiction to pass upon the sufficiency of 
 the requisition papers has been held ; Jones 
 v. Leonard, 50 la. 110, 32 Am. Rep. 116; Peo- 
 ple v. Hyatt, 172 N. Y. 176, 64 N. E. 825, 60 
 L. R. A. 774, 92 Am. St. Rep. 706, affirmed 
 Hyatt v. New York, 1S8 U. S. 691, 23 Sup. Ct. 
 456, 47 L. Ed. 657 ; In re Waterman, 29 Nev. 
 288, 89 Pac. 291, 11 L. R. A. (N. S.) 424, 13 
 Ann. Cas. 926 ; that the accused should be 
 permitted to show that the indictment or af- 
 fidavit accompanying the requisition charged 
 no crime under the laws of the demanding 
 state, see Barriere v. State, 142 Ala. 72, 39 
 South. 55 ; Ex parte Slauson, 73 Fed. 666. 
 
 In Hyatt v. New York, 1S8 U. S. 691, 23 
 Sup. Ct. 456, 47 L. Ed. 657, it is said: Upon 
 the executive of the state in which the ac- 
 cused is found rests the responsibility of de- 
 termining whether he is a fugitive from the 
 demanding state. He does not fail in duty if 
 he makes it a condition precedent to the sur- 
 render of the accused that it be shown to him 
 by competent proof that the accused is in 
 fact a fugitive from the justice of the de- 
 manding state; and in People v. Brady, 56 
 N. Y. 1S2, that the courts have jurisdiction to 
 interfere by habeas corpus, and to examine 
 the grounds upon which an executive war- 
 rant for the apprehension of an alleged fugi- 
 tive from justice from another state is is- 
 sued, and in case the papers are defective and 
 insufficient, to discharge the prisoner. 
 
 It must appear to the governor of the asy- 
 lum state, before he can lawfully comply 
 with it: First, that the person demanded Is 
 substantially charged with a crime against 
 the laws of the demanding state, by an indict- 
 ment or an affidavit certified as authentic by 
 the governor of the demanding state; and, 
 second, that the person demanded is a fugi- 
 tive from the justice of the demanding state : 
 Roberts v. Reilly, 116 U. S. SO, 6 Sup. Ct. 291, 
 29 L. Ed. 544. The first of these prerequisites 
 
 may te<>>a Sc °Z. tor 
 
 Ju ' r »hi ;,; ° Pc -* on 
 
 -i 
 
 decisions, nor by' a. -f/on- % 
 by the Supreme Couifr.by ) l(ll 
 
 questions not . .. LUe § \ ls a q Ut 
 
 r liis 
 
 chusetts, 203 U. S. 222, l.., 
 
 L. Ed. 161; but it is concede 8 *** 1 to 
 
 termination of the fact by the ei&ciaj 
 
 the state in issuing his warrant of t- 
 
 upon a demand made on that ground, \ 
 
 er the writ contains a recital of an express 
 
 finding to that effect or not, must be r< 
 
 ed as sufficient to justify the removal, until 
 
 the presumption in its favor is overthrown ; 
 
 In re Reggel, 114 U. S. 642, 5 Sup. Ct 
 
 29 L. Ed. L'.'O ; Appleyard v. Massa<ir 
 
 203 U. S. 222, 27 Sup. Ct. 122, 51 L. Ed 161. 
 
 The motives which prompt the governor to 
 issue his warrant are held not proper sul>- 
 jects of judicial inquiry; In re Mover. 12 
 Idaho 250, 85 Pac. S97, 12 L. R. A. (N. S.) 227, 
 IIS Am. St. Rep. 214; Cum. v. Super! 
 ent of Philadelphia County Prison, 220 Pa. 
 401, 69 Atl. 916, 21 L. R. A. (N. S.) 939. Ju- 
 risdiction to take the action complained of is 
 the test; id. The governor m 
 independent proof, apart from the requisition 
 papers, that accused was a fugitive from jus- 
 tice; Pettibone v. Nichols, 203 U. S. 1! 
 Sup. Ct 111, 51 L. Ed. 14S. When the | 
 for whom a requisition is made is in ; 
 in the asylum state under conviction of crime, 
 the governor cannot deliver him up ; Opinion 
 of Justices, 201 Mass. 609, SO X. E. 174, 24 
 L. R. A. (N. S.) 799, and note. 
 
 An indictment is not a prerequisite to ex- 
 tradition ; Pierce v. Creecy, 210 1 
 Sup. Ct. 714. 52 L. Ed. 1113. Extradition is 
 a mere proceeding in securing arrest and at- 
 tention; a complaint before a committing 
 magistrate is a charge of crime; In re 
 Strauss, 197 U. S. 324, 25 Sup. Ct 535, 49 L. 
 Ed. 774. 
 
 The Indictment in order to constitute a 
 ni charge of crime to warrant inter- 
 state rendition, need show no more than that 
 the accused was substantially charged with 
 crime; Pierce v. Creecy, 210 U. 8. 387, 28 
 sup. Ct. 714. 62 L. Ed. 1113. if more were 
 required, it would in n courts at the 
 
 trial under writs of habeas corpus the duty 
 ritical examination of the laws of the 
 states with whose jurisprudence and crim- 
 inal procedure they can have but a general 
 acquaintance. 
 
 if thi tion is by affidavit it should 
 
 be sufficiently full and explicit to justify ar- 
 rest and commitment for hearing: Ex parte 
 Smith, 3 McLean 121. Fed. Cas. No, 12 
 In re Ileyward, 1 Sandf. (N. Y.) 701; In re
 
 EXTRADITION 
 
 1172 
 
 EXTRADITION 
 
 Fetter, 23 N. J. L. 311, 57 Am. Dec. 3S2 ; 
 State v. Patterson, 116 Mo. 505, 22 S. W. 690 ; 
 In re Hooper, 52 Wis. 699, 58 N. W. 741. The 
 demand must be made by the governor of the 
 state; Com. v. Hall, 9 Gray (Mass.) 202, 09 
 Am. Dec. 285. 
 
 The accused must have fled from the state 
 in which the crime was committed ; and of 
 this the executive authority of the state up- 
 on which the demand is made should be rea- 
 sonably satisfied. This is sometimes done by 
 affidavit. The governor upon whom the de- 
 mand is made acts judicially, so far as to see 
 whether the case is a proper one; In re 
 Greenough, 31 Vt. 279 ; but he cannot look 
 behind the indictment in which the crime is 
 charged ; In re Voorhees, 32 N. J. L. 145 ; 
 Taylor v. Taintor, 16 Wall. (U. S.) 366, 21 L. 
 Ed. 2S7. The duty to surrender the fugitive 
 is obligatory ; Kentucky v. Dennison, 24 How. 
 (U. S.) 103, 16 L. Ed. 717; Taylor v. Taintor, 
 16 Wall. (U. S.) 370, 21 L. Ed. 2S7. But in 
 the case of a conflict of jurisdiction between 
 the two states the surrender may be post- 
 poned; Taylor v. Taintor, 10 Wall. (U. S.) 
 300, 21 L. Ed. 287 ; In re Briscoe, 51 How. Pr. 
 (N. Y.) 422; Com. v. Wright, 15S Mass. 149, 
 33 N. E. 82, 19 L. R. A. 200, 35 Am. St. Rep. 
 475. 
 
 It is not necessary that the party charged 
 should have left the state in which the crime 
 is alleged to have been committed, after an 
 indictment found or for the purpose of es- 
 caping a prosecution anticipated or begun ; 
 Ex parte Brown, 28 Fed. 053; but simply 
 that having committed a crime within a 
 state, when he is sought to be subjected to 
 its criminal process, he has left its jurisdic- 
 tion and is found within another state ; In re 
 Reggal, 114 U. S. 642, 5 Sup. Ct. 1148, 29 L. 
 Ed. 250 ; Renaud v. Abbott, 116 U. S. 287, 6 
 Sup. Ct. 1194, 29 L. Ed. 629 ; Streep v. U. S., 
 160 U. S. 12S, 16 Sup. Ct. 244, 40 L. Ed. 365 ; 
 Moyer v. Nichols, 203 TL S. 221, 27 Sup. Ct. 
 121, 51 L. Ed. 100 ; Ex parte Brown, 28 Fed. 
 053 ; In re Cook, 49 Fed. 833 ; In re White, 
 55 Fed. 54, 5 C. C. A. 29; In re Bloch, 87 
 Fed. 9S1; Kingsbury's Case, 100 Mass. 223. 
 Whether the motive for leaving was to es- 
 cape prosecution or not, his return to answer 
 the charges against him is equally within 
 the spirit and purpose of the statute ; and 
 the simple fact. that he was not within the 
 state to answer its criminal process, when 
 required, renders him a fugitive from jus- 
 tice, regardless of his purpose in leaving; 
 State v. Richter, 37 Minn. 430, 35 N. W. 9. 
 That the accused did not believe he had com- 
 mitted any crime against the demanding 
 state will not prevent his being a fugitive 
 from justice ; Appleyard v. Massachusetts, 
 203 U. S. 222, 27 Sup. Ct. 122, 51 L. Ed. 161, 
 7 Ann. Cas. 1073 ; or that he commits a crime 
 within a state and then simply returns to 
 his own home in another state; Ex parte 
 Swearingen, 13 S. C. 74; In re Mohr, 73 Ala. 
 
 503, 49 Am. Rep. 63. He is held not to be 
 a fugitive from justice if be has never been 
 in the demanding state, but is alleged to 
 have obtained money by false pretences 
 through the mails ; State of Tennessee v. 
 Jackson, 36 Fed. 25S, 1 L. R. A. 370. In In 
 re Robinson, 29 Neb. 135, 45 N. W. 267, 8 L. 
 R. A. 39S, 26 Am. St. Rep. 378, the court or- 
 dered the discharge of a prisoner because he 
 had been forcibly brought into the state with- 
 out requisition papers ; and to the same ef- 
 fect, State v. Simmons, 39 Kan. 262, 18 Pac. 
 177. Crimes which are not actually, but only 
 constructively, committed within the demand- 
 ing state do not fall within the class of cas- 
 es embraced by the constitution or acts of 
 congress. Not that the jurisdiction to try 
 the crime is lacking, but that no one can in 
 any sense be alleged to have fled from a state 
 in which he has never been corporally pres- 
 ent since the commission of the crime ; In 
 re Mohr, 73 Ala. 503, 49 Am. Rep. 03; In re 
 Reggel, 114 U. S. 642, 5 Sup. Ct. 1148, 29 L. 
 Ed. 250 ; State v. Hall, 115 N. C. 811, 20 S. 
 E. 729, 28 L. R. A. 2S9, 44 Am. St. Rep. 501, 
 where the constructive presence of a murder- 
 er in the state, where the victim was struck 
 by a. bullet fired across the state boundary, 
 was held not sufficient to make him a fugi- 
 tive from that state when found in the state 
 from which the shot was fired. 
 
 In criminal cases, a forcible abduction is 
 no sufficient reason why the party should not 
 answer when brought within the jurisdiction 
 of the court which has the right to try him 
 for such offence, and presents no valid ob- 
 jection to his trial in such court; Ker v. Ill- 
 inois, 119 U. S. 436, 7 Sup. Ct. 225, 30 L. 
 Ed. 421 ; Ex parte Scott, 9 Barn. & C. 446 ; 
 State v. Smith, 1 Bail. (S. C.) 283, 19 Am. 
 Dec. 679; Dows' Case, 18 Pa. 37. Although 
 it has been frequently held that if a defend- 
 ant in a civil case be brought within the pres- 
 ence of the court by a trick or a device, the 
 service will be set aside, and he will be dis- 
 charged from custody; Wells v. Gurney, 8 
 Barn. & C. 769; Metcalf v. Clark, 41 Barb. 
 (N. T.) 45. The law will not permit a person 
 to be kidnapped or decoyed within the juris- 
 diction for the purpose of being compelled to 
 answer to a mere private claim, but in crim- 
 inal cases the interests of the public override 
 that which is, after all, a mere privilege 
 from arrest ; In re Johnson, 167 U. S. 120, 17 
 Sup. Ct. 735, 42 L. Ed. 103. 
 
 As between the states, fugitives from justice 
 have no right of asylum, in the international 
 sense ; and a fugitive who has been returned 
 by interstate rendition may be tried for other 
 offences than that for which his return was 
 demanded, without violating any rights se- 
 cured by the constitution or laws of the Unit- 
 ed States; Mahon v. Justice, 127 U. S. 700, 
 8 Sup. Ct. 1204, 32 L. Ed. 283 ; Lascelles v. 
 Georgia, 148 U. S. 537, 13 Sup. Ct. 0S7, 37 L. 
 Ed. 549, affirming id., 90 Ga. 347, 16 S. E. 945,
 
 EXTRADITION 
 
 1173 
 
 EXTRADITION 
 
 35 Am. St. Rep. 216; State v. Glover, 112 
 N. 0. S9C, 17 S. B. 525; People v. Cross, lo5 
 N. Y. 536, 32 X. K. 246, 31 Am. St. Re] 
 Coin. v. Wright, 158 Mass, 149, 33 N. E. 82, 
 19 L. R. A. 206, 35 Am. St. Rep. 475 ; State v. 
 Patterson, 116 Mo. 505, 22 S. W. GOG; Water- 
 man v. State, 116 Intl. 51, 18 N. E. 63; State 
 v. Kealy, SO la. 01, 5G X. \V. 2S3 ; Carr v. 
 State, 104 Ala. 4, 16 South. 150; State v. 
 Stewart, GO Wis. 5S7, 10 X. W. 420. 50 Am. 
 St. Rep. 388; Ham v. State, 4 Tex. App. 645; 
 Williams v. Weber, 1 Colo. App. 191, 28 Pac 
 21; In re Bropby, 2 Ohio N. P. 230: Bar- 
 land v. Territory, 3 Wash. Ty. 131, 13 Pac. 
 453 ; contra, In re Baruch, 41 Fed. 472 ; In 
 re Fitton, 45 Fed. 471 ; State v. Hall. 40 Kan. 
 338, 10 Pac. 018, 10 Am. St. Rep. 200; Stale 
 v. Meade, 56 Kan. 690, 44 Pac. 610; In re 
 Cannon, 47 Mich. 4S1, 11 N. W. 280. In some 
 states the courts have overruled former de- 
 cisions, bringing themselves in accord with 
 the United States supreme court ; retry v. 
 Leidigh, 47 Xeb. 126, 06 X. W. 308; see In re 
 Robinson, 20 Xeb. 135, 45 N. W. 267, S L. R. 
 A. 39S, 26 Am. St. Rep. 378; In re Brophy, 
 2 Ohio N. P. 230; Ex parte McKnight, 3 
 Ohio X. P. 255; id., 48 Ohio St. 588, 28 N. 
 E. 1034, 14 L. R. A. 12S. See 12 Harv. L. 
 Rev. 532. 
 
 Habeas corpus will not lie to release from 
 custody one who has been forcibly abducted 
 from another state and brought to trial into 
 the jurisdiction of a tribunal having jurisdic- 
 tion of the offence charged; Ex parte Davis, 
 51 Tex. Cr. R. 60S, 103 S. W. 891, 12 L. R. A. 
 (X. S.) 225, 14 Ann. Cas. 522; and to the 
 same effect Ker v. Illinois, 119 U. S. 436, 7 
 Sup. Ct. 225, 30 L. Ed. 421, where the pris- 
 oner was kidnapped in Peru, without any 
 pretence of authority under the treaty or 
 from the United States, and brought to Ill- 
 inois; his trial in the state courts was held 
 not to involve a violation of the due process 
 clause of the constitution, nor of the treaty 
 with Peru. The principle upon which the 
 judgment rested was that when a criminal is 
 brought into, or is in fact within, the custody 
 of the state, charged with a crime against its 
 laws, the state may, so far as the constitu- 
 tion and laws of the United States are con- 
 cerned, proceed against him for the crime, 
 and need not inquire as to the particular 
 methods employed to bring him into the state. 
 In meeting the contention that the accused. 
 by virtue of the treaty with Peru, acquired 
 by his residence a right of asylum, it was 
 said: "There is no language in this treaty, or 
 in any other treaty made by this country on 
 the subject of extradition of which we are 
 aware, which says in terms (hat a party flee- 
 ing from the United States to escape punish- 
 ment for crime becomes thereby entitled to 
 an asylum in the country to which he has 
 fled." The right of a government voluntarily 
 to give an asylum is different from the right 
 to demand security in such asylum. The trea- 
 
 ty, so far as it regulates the right of asylum 
 at all. led to limit this right in one 
 
 who is proved to be a criminal fleeing from 
 justice, so that on proper demand and 
 ceedings had therein the government of the 
 country of the asylum dial; deliver him up t" 
 the country where the crime was 
 To tlii and to this alone. 
 
 does regulate or Impose a ;• 
 the right of the government of the country of 
 the asylum to protect the criminal fro 
 moval therefrom. In Mahou v. .1 . 
 D. s. 700, 8 E Ot 1204, 82 L. i:d. 2€ 
 governor of Kentucky made a requisition up- 
 on the governor of West VJ 
 Charged with the crime of murder In 
 tui ky, alleged to have fled from its Jui 
 tion and taken refuge in West Vii 
 While the two governors were in < 
 once on the subject, a body of armed 
 without warrant or other legal j : 
 rested the accused in West Virginia and 
 delivered him to the jailor of Pike county, 
 Kentucky, in the courts of which he stood In- 
 dicted for murder. Thereupon the go\. 
 of West Virginia, on behalf of that stab 
 plied to the district court of the i 
 States for the Kentucky district for a writ 
 of habeas corpus and his return to the Juris- 
 diction of Wes( Virginia. Th< court 
 held that no mode is provided by which a 
 unlawfully abducted from one state 
 to another can be restored to the 
 which be was taken, if held upon any pi 
 of law for offences against the state to which 
 he has been carried. The decision was by B 
 divided court, but its authority is said to be 
 
 -at lulling ; Moyer v. Ni< 
 203 U. S. 221, 27 Sup. Ct l-i. 51 L. Ed. 160; 
 affirming In re Moyer, L2 Idaho 2J 
 897, 12 L. K. A. (X. s.i 227, I R< 
 
 21 1. in Cook v. Hart, 146 D. S. It 
 Ct 40. 36 L. Ed. 934, it was said th 
 cases "i" Ker v. Illinois, 119 D. S. 436, 7 Sup. 
 Ct 225, 30 L. Ed. 421, and Mahon v. A 
 127 D. s. 700, 8 Sup. Ct 1204, 82 1.. Ed. 283, 
 established two propositions: 1. That that 
 court will not interfere to reliev 
 who have been an. 
 lence from one state to another, v 
 are held under pre, from 
 
 arts of the latter .:. That the 
 
 question of the applicability of this do 
 
 articular much th< 
 
 of the state courts as a quest 
 law, or of the law of nations, as it i- 'if the 
 courts of the United state.-, [fa f< 
 ductioD from another state and ■ 
 within the jurisdiction of the court holding 
 him is DO objection - DtiOQ and trial 
 
 for the offence charged, i 
 
 tion allowed if the abduction has b 
 pushed under tl ;' law. Th< 
 
 plained of does not relate I -faint 
 
 from which the petition, t 
 
 ed, but to the means by which he w
 
 EXTRADITION 
 
 1174 
 
 EXTRATERRITORIALITY 
 
 within the jurisdiction of the court under 
 whose process he is held ; Pettibone v. Nich- 
 ols, 203 U. S. 192, 27 Sup. Ot. Ill, 51 L. Ed. 
 148, where conspiracy was charged against 
 the governors of the states of Idaho and 
 Colorado and other officers to secure the pres- 
 ence of Pettibone in the former state. It was 
 held that the fundamental question was 
 whether a United States circuit court, when 
 asked upon habeas corpus to discharge a per- 
 son held in actual custody by a state for trial 
 in one of its courts, under an indictment 
 charging a crime against its laws, can prop- 
 erly take into account the methods whereby 
 the state obtained such custody, and that 
 that question had been determined in the 
 negative in Ker v. Illinois, 119 U. S. 436, 7 
 Sup. Ct. 225, 30 L. Ed. 421, and Mahon v. 
 Justice, 127 U. S. 700, 8 Sup. Ct. 1204, 32 L. 
 Ed. 283, supra. 
 
 See 15 L. R. A. 177 n. ; 12 L. R. A. (N. S.) 
 225 n. 
 
 The constitutional provision for interstate 
 rendition warrants a surrender after convic- 
 tion ; In re Hope, 7 N. Y. C. R. R. 406, 10 N. Y. 
 Supp. 28; but after serving his sentence the 
 convict cannot be surrendered under a req- 
 uisition from another state until he has had 
 reasonable time to return to the state from 
 which he was extradited ; id. 
 
 Extradition proceedings may be made the 
 basis of a suit for malicious prosecution; Cas- 
 tro v. De Uriarte, 16 Fed. 93. 
 
 See Fugitive from Justice. 
 
 EXTRA JUDICIUM. Extra-judicial; out 
 of the proper cause. Judgments rendered or 
 acts done by a court which has no jurisdic- 
 tion of the subject, or where it has no juris- 
 diction, are said to be extra-judicial. 
 
 EXTRANEUS. In Old English Law. One 
 
 foreign born ; a foreigner. 7 Rep. 16. 
 
 In Roman Law. An heir not bom in the 
 family of the testator. Those of a foreign 
 state. The same as alienus. Vicat, Yoc. 
 Jur. ; Du Cange. 
 
 EXTRAORDINARY. Beyond or out of the 
 common order or rule ; not usual, regular, or 
 of a customary kind ; not ordinary ; remark- 
 able ; uncommon ; rare. Ten Eyck v. Episco- 
 pal Church, 29 Abb. N. C. (N. Y.) 154, 20 N. 
 Y. Supp. 157 ; The Titania, 19 Fed. 103. 
 
 EXTRATERRITORIALITY. A term for- 
 merly used to express the exemption from 
 the obligation of the laws of a state granted 
 to foreign diplomatic agents, war-ships, etc. 
 Wheaton, § 224. It has now been generally 
 replaced by the term "Exterritoriality" (q. 
 v.). See also Foreign Judgment ; Foreign 
 Law ; Equity. The term is used to indicate 
 jurisdiction exercised by a nation in other 
 countries, by treaty, as, by the United States 
 in China or Egypt; or by its own ministers 
 or consuls in foreign lands. Crime is said 
 to be extraterritorial when committed in a 
 country other than that of the forum in 
 which the party is tried. See 2 Moore, Int. 
 L. Dig. 
 
 EXTRAVAGANTES. In Canon Law. The 
 
 name given to the constitutions of the popes 
 posterior to the Clementines. 
 
 They are thus called, quasi vagantes extra corpus 
 juris, to express that they were out of the canonical 
 law, which at first contained only the decrees of 
 Gratian: afterwards the Decretals of Gregory IX., 
 the Sexte of Boniface VIII., the Clementines, and 
 at last the Extravagantes, were added to it. There 
 are the Extravagantes of John XXII., and the com- 
 mon Extravagantes. The first contain twenty epis- 
 tles, decretals, or constitutions of that pope, divided 
 under fifteen titles, without any subdivision into 
 books. The others are epistles, decretals, or consti- 
 tutions of the popes who occupied the holy see 
 either before or after John XXII. They are divided 
 into books, like the decretals. 
 
 EXTREMIS (Lat. in extremity). When a 
 person is sick beyond the hope of recovery, 
 and near death, he is said to be in extremis. 
 
 A will made in this condition, if made with- 
 out undue influence, by a person of souud 
 mind, is valid. As to the effect of declara- 
 tions of persons in extremis, see Dying Dec- 
 larations; Declarations. 
 
 EYE-WITNESS. One who saw the act or 
 fact to which he testifies. When an eye-wit- 
 ness testifies, and is a man of intelligence and 
 integrity, much reliance must be placed on his 
 testimony. 
 
 EY0TT. A small island arising in a river. 
 Fleta, 1. 3, c. 2, s. b; Bracton, 1. 2, c. 2. See 
 
 Island. 
 
 EYRE. A journey; a court of itinerant 
 justices. In old English law applied to the 
 judges who traveled on circuit to hold courts 
 in the different counties. See Justices in 
 
 Eyre. 
 
 EYRER. To go about. See Eyke. 
 
 [END OF VOL.1]
 
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