E1:
E CONVERSO. On the other side or hand; on the contrary.
E PLURIBUS UNUM. One from more. The motto of the arms of the
United States.
EAGLE, money. A gold coin of the United States, of the value of
ten dollars. It weighs two hundred and fifty-eight grains. Of one
thousand parts, nine hundred are of pure gold, and one hundred of
all Act of January 18, 1837, 4 Sharsw. Cont. of Story's L. U. S.
2523, 4. Vide Money.
EAR-WITNESS. One who attests to things he has heard himself.
EARL, Eng. law. A title of nobility next below a marquis and
above a viscount.
2. Earls were anciently called comites, because they were wont
comitari regem, to wait upon the king for counsel and advice. He
was also called shireman, because each earl had the civil
government of a shire.
3. After the Norman conquest they were called counts, whence
the shires obtained the names of counties. They have now nothing
to do with the government of counties, which has entirely
devolved on the sheriff, the earl's deputy, or vice comes.
EARLDOM. The seigniory of an earl; the title and dignity of an
earl.
EARNEST, contracts. The payment of a part of the price of goods
sold, or the delivery of part of such goods, for the purpose of
binding the contract.
2. The effect of earnest is to bind the goods sold, and upon
their being paid for without default, the buyer is entitled to
them. But notwithstanding the earnest, the money must be paid
upon taking away the goods, because no other time for payment is
appointed; earnest only binds the bargain, and gives the buyer a
right to demand, but a demand without payment of the money is
void; after earnest given the vendor cannot sell the goods to
another, without a default in the vendee, and therefore if the
latter does not come and pay, and take the goods, the vendor
ought to go and request him, and then if he does not come, pay
for the goods and take them away in convenient time, the
agreement is dissolved, and he is at liberty to sell them to any
other person. 1 Salk. 113: 2 Bl. Com. 447; 2 Kent, Com. 389;
Ayl. Pand. 450; 3 Campb. R. 426.
EASEMENTS, estates. An easement is defined to be a liberty
privilege or advantage, which one man may have in the lands of
another, without profit; it may arise by deed or prescription.
Vide 1 Serg. & Rawle 298; 5 Barn. & Cr. 221; 3 Barn. & Cr. 339;
3 Bing. R. 118; 3 McCord, R. 131, 194; 2 McCord, R. 451; 14
Mass. R. 49 3 Pick. R. 408.
2. This is an incorporeal hereditament, and corresponds nearly
to the servitudes or services of the civil law. Vide Lilly's Reg.
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h. t. 2 Bouv. Inst. n. 1600, et seq.; 3 Kent, Com. 344: Cruise,
Dig. t. 31, c. 1, s. 17; 2 Hill. Ab. c. 5; 9 Pick. R. 51; 1
Bail. R. 56; 5 Mass. R. 129; 4 McCord's R. 102; Whatl. on Eas.
passim; and the article Servitude.
EASTER TERM, Eng. law. One of the four terms of the courts. It
is now a fixed term beginning on the 15th of April and ending the
8th of May in every year. It was formerly a movable term.
EAT INDE SINE DIE. Words used on an acquittal, or when a
prisoner is to be discharged, that he may go without day, that
is, that he be dismissed. Dane's Ab. Index, h. t.
EAVES-DROPPERS, crim. law. Persons as wait under walls or
windows or the eaves of a house, to listen to discourses, and
thereupon to frame mischievous tales.
2. The common law punishment for this offence is fine, and
finding sureties for good behaviour. 4 Bl. Com. 167; Burn's
Just. h. t.; Dane's Ab. Index, h. t.; 1 Russ. Cr. 302.
3. In Tennessee, an indictment will not lie for eaves-dropping.
2 Tenn. R. 108.
ECCHYMOSIS, med. jur. Blackness. It is an extravasation of
blood by rupture of capillary vessels, and hence it follows
contusion; but it may exist, as in cases of scurvy, and other
morbid conditions, without the latter. Ryan's Med. Jur. 172.
ECCLESIA. In classical Greek this word signifies any assembly,
and in this sense it is used in Acts xix. 39. But ordinarily, in
the New Testament, the word denotes a Christian assembly, and is
rendered into English by the word church. It occurs thrice only
in, the Gospels, viz. in Matt. xvi. 18, and xviii. 17; but very
frequently in the other parts of the New Testament, beginning
with Acts ii. 47. In Acts xix. 37, the word churches, in the
common English version, seems to be improperly used to denote
heathen temples. Figuratively, the word church is employed to
signify the building set apart for the Christian assemblies; but
the word eclesia is not used in the New Testament in that sense.
ECCLESIASTIC. A clergyman; one destined to the divine
ministry, as, a bishop, a priest, a deacon. Dom. Lois Civ. liv.
prel. t. 2, s. 2, n. 14.
ECCLESIASTICAL. Belonging to, or set apart for the church; as,
distinguished from civil or secular. Vide Church.
ECCLESIASTICAL COURTS. English law. Courts held by the king's
authority as supreme governor of the church, for matters which
chiefly concern religion.
2. There are ten courts which may be ranged under this class.
1. The Archdeacon's Court. 2. The Consistory Court. 3. The Court
of Arches. 4. The Court of Peculiars. 5. The Prerogative Court.
6. The Court of Delegates, which is the great court of appeals in
all ecclesiastical causes. 7. The Court of Convocation. 8. The
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Court of Audience. 9. The Court of Faculties. 10. The Court of
Commissioners of Review.
ECCLESIASTICAL LAW. By this phrase it is intended to include
all those rules which govern ecclesiastical tribunals. Vide Law
Canon.
ECCLESIASTICS, canon law. Those persons who compose the
hierarchial state of the church. They are regular and secular.
Aso & Man. Inst. B. 2, t. 5, c. 4, §1.
ECLAMPSIA PARTURIENTIUM, med. jur. The name of a disease
accompanied by apoplectic convulsions, and which produces
aberration of mind at childbirth. The word Eclampsia is of Greek
origin - Significat splenaorem fulgorem effulgentiam, et
emicationem quales ex ocuIis aliquando prodeunt. Metaphorice
sumitur de emicatione flammae vitalis in pubertate et aetaeis
vigore. Castelli, Lex. Medic.
2. An ordinary person, it is said, would scarcely observe it,
and it requires the practised and skilled eye of a physician to
discover that the-patient is acting in total unconsciousness of
the nature and effect of her acts. There can be but little doubt
that many of the tragical cases of infanticide proceed from this
cause. The criminal judge and lawyer cannot inquire with too much
care into the symptoms of this disease, in order to discover the
guilt of the mother, where it exists, and to ascertain her
innocence, where it does not. See two well reported cases of this
kind in the Boston Medical Journal, vol. 27, No. 10, p. 161.
EDICT. A law ordained by the sovereign, by which he forbids or
commands something it extends either to the whole country, or
only to some particular provinces.
2. Edicts are somewhat similar to public proclamations. Their
difference consists in this, that the former have authority and
form of law in themselves, whereas the latter are at most,
declarations of a law, before enacted by congress, or the
legislature.
3. Among the Romans this word sometimes signified, a citation
to appear before a judge. The edict of the emperors, also called
constitutiones principum, were new laws which they made of their
own motion, either to decide cases which they had foreseen, or to
abolish or change some ancient laws. They were different from
their rescripts or decrees. These edicts were the sources which
contributed to the formation of the Gregorian, Hermogenian,
Theodosian, and Justinian Codes. Vide Dig. 1, 4, 1, 1; Inst. 1,
2, 7; Code, 1, 1 Nov. 139.
EDICT PERPETUAL. The title of a compilation of all the edicts.
This collection was made by Salvius Julianus, a jurist who was,
selected by the emperor Adrian for the purpose, and who performed
his task with credit to himself.
EDICTS OF JUSTINIAN. These are thirteen constitutions or laws
of that prince, found in most editions of the corpus juris
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civilis, after the Novels. Being confined to matters of police in
the provinces of the empire, they are of little use.
EFFECT. The operation of a law, of an agreement, or an act, is
called its
effect.
2. By the laws of the United States, a patent cannot be granted
for an effect only, but it may be for a new mode or application
of machinery to produce effects. 1 Gallis. 478; see 4 Mason, 1;
Pet. C. C. R. 394; 2 N. H. R. 61.
EFFECTS. This word used simpliciter is equivalent to property
or, worldly substance, and may carry the whole personal estate,
when used in a will. 5 Madd. Ch. Rep. 72; Cowp. 299; 15 Ves.
507; 6 Madd. Ch. R. 119. But when it is preceded and connected
with words of a narrower import, and the bequest is not
residuary, it will be confined to species of property ejusdem
generis with those previously described. 13 Ves. 39; 15 Ves.
826; Roper on Leg. 210.
EFFIGY, crim. law. The figure or representation of a person.
2. To make the effigy of a person with an intent to make him
the object of ridicule, is a libel. (q. v.) Hawk. b. 1, c. 7 3,
s. 2 14 East, 227; 2 Chit. Cr. Law, 866.
3. In France an execution by effigy or in effigy is adopted in
the case of a criminal who has fled from justice. By the public
exposure or exhibition of a picture or representation of him on a
scaffold, on which his name and the decree condemning him are
written, he is deemed to undergo the punishment to which he has
been sentenced. Since the adoption of the Code Civil, the
practice has been to affix the names, qualities or addition, and
the residence of the condemned person, together with an extract
from the sentence of condemnation, to a post set upright in the
ground, instead of exhibiting a portrait of him on the scaffold.
Repertoire de Villargues; Biret, Vo cab.
EFFRACTION. A breach, made by the use of force.
EFFRACTOR. One who breaks through; one who commits a burglary.
EGO. I, myself. This term is used in forming genealogical
tables, to represent the person who is the object of inquiry.
EIGNE, persons. This is a corruption of the French word aine,
eldest or first born.
2. It is frequently used in our old law books, bastard eigne.
signifies an elder bastard when spoken of two children, one of
whom was; born before the marriage of his parents, and the other
after; the latter is called mulier puisne. Litt. sect. 399.
EIRE, or EYRE, English law. A journey. Justices in eyre, were
itinerant judges, who were sent once in seven years with a
general commission in divers counties, to hear and determine such
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causes as were called pleas of the crown. Vide Justices in eyre.
EJECTMENT, remedies. The name of an action which lies for the
recovery of the possession of real property, and of damages for
the unlawful detention. In its nature it is entirely different
from a real action. 2 Term Rep; 696, 700. See 17 S. & R. 187,
and, authorities cited.
2. This subject may be considered with reference, 1st. To the
form of the, proceedings. 2d. To the nature of the property or
thing to be recovered. 3d. To the right to such property. 4th. To
the nature of the ouster or injury. 5th. To the judgment.
3. - 1. In the English practice, which is still adhered to in
some states, in order to lay the foundation of this action, the
party claiming title enters upon the land, and then gives a lease
of it to a third person, who, being ejected by the other
claimant, or some one else for him, brings a suit against, the
ejector in his own name; to sustain the action the lessee must
prove a good title in the lessor, and, in this collateral way,
the title is tried. To obviate the difficulty of proving these
forms, this action has been made, substantially, a fictitious
process. The defendant agrees, and is required to confess that a
lease was made to the plaintiff, that he entered under it, and
has been ousted by the defendant, or, in other words, to admit
lease, entry, and ouster, and that he will rely only upon his
title. An actual entry, however, is still supposed, and
therefore, an ejectment will not lie, if the right of entry is
gone. 3 Bl. Com. 199 to 206. In Pennsylvania, New York, Arkansas,
and perhaps other states, these fictions have all been abolished,
and the writ of ejectment sets forth the possession of the
plaintiff, and an unlawful entry on the part of the defendant.
4. - 2. This action is in general sustainable only for the
recovery of the possession of property upon which an entry might
in point of fact be made, and of which the sheriff could deliver
actual possession: it cannot, therefore, in general, be sustained
for the recovery of property which, in legal consideration, is
not tangible; as, for a rent, or other incorporeal
heriditaments, a water-course, or for a mere privilege of a
landing held in common with other citizens of a town. 2 Yeates,
331; 3 Bl. Com. 206; Yelv. 143; Run. Eject. 121 to 136 Ad.
Eject. c. 2; 9 John. 298; 16 John. 284.
5. - 3. The title of the party having a right of entry maybe in
fee-simple, fee-tail, or for life or years; and if it be the
best title to the property the plaintiff will succeed. The
plaintiff must recover on the strength. of his title, and not on
the weakness or deficiency of that of the defendant. Addis. Rep.
390; 2 Serg. & Rawle, 65; 3 Serg. & Rawle, 288; 4 Burr. 2487;
1 East, R. 246; Run. Eject. 15; 5 T. R. 110.
6. - 4. The injury sustained must in fact or in point of law
have amounted to an ouster or dispossession of the lessor of the
plaintiff, or of the plaintiff himself, where the fictions have
been abolished; for if there be no ouster, or the defendant be
not in possession at the time of bringing the action, the
plaintiff must fail. 7 T. R. 327; 1 B. & P. 573; 2 Caines' R.335.
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7. - 5. The judgment is that the plaintiff do recover his term,
of and in the tenements, and, unless the damages be remitted, the
damages assessed by the jury with the costs of increase. In
Pennsylvania, however, and, it is presumable, in all those states
where the fictitious form of this action has been abolished, the
plaintiff recovers possession of the land generally, and not
simply a term of years in the land. See 2 Seam. 251; 4 B. Monr.
210; 3 Harr. 73; 1 McLean, 87. Vide, generally, Adams on Ej.;
4 Bouv. Inst. n., 3651, et seq.; Run. Ej.; Com. Dig. h. t.;
Dane's Ab. h. t.; 1 Chit. Pl. 188 to 193; 18 E. C. L. R. 158;
Woodf. L. & T. 354 to 417; 2 Phil. Ev. 169.; 8 Vin. Ab. 323;
Arch. Civ. Pl. 503; 2 Sell. Pr. 85; Chit. Pr. lndex, h. t.;
Bac. Ab. h. t Doct. Pl. 227; Am. Dig. h. t.; Report of the
Commissioners to Revise the Civil Code of Pennsylvania, January
16, 1835, pp. 80, 81, 83; Coop. Justinian, 448.
EJUSDEM GENERIS. Of the same kind.
2. In the construction of laws, wills and other instruments,
when certain things are enumerated, and then a phrase is used
which might be construed to include other things, it is generally
confined to things ejusdem generas; as, where an act (9 Ann. C.
20) provided that a writ of quo warranto might issue against
persons who should usurp "the offices of mayors, bailiffs, port
reeves, and other offices, within the cities, towns, corporate
boroughs, and places, within Great Britain," &c.; it was held
that "other offices" meant offices ejusdem generis; and that the
word "places" signified places of the same kind; that is, that
the offices must be corporate offices, and the places must be
corporate Places. 5 T. R. 375,379; 5 B . & C. 640; 8 D. & Ry.
393; 1 B. & C. 237.
3. So, in the construction of wills, when certain articles are
enumerated, the terra goods is to be restricted to those ejusdem
generis. Bac. Ab. Legacies, B; 3 Rand. 191; 3 Atk. 61; Abr.
Eq. 201; 2 Atk. 113.
ELDEST. He or she who has the greatest age.
2. The laws of primogeniture are not in force in the United
States; the eldest child of a family cannot, therefore, claim
any right in consequence of being the eldest.
ELECTION. This term, in its most usual acceptation, signifies
the choice which several persons collectively make of a person to
fill an office or place. In another sense, it means the choice
which is made by a person having the right, of selecting one of
two alternative contracts or rights. Elections, then, are of men
or things.
2. - §1. Of men. These are either public elections, or
elections by companies or corporations.
3. - 1. Public elections. These should be free and uninfluenced
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either by hope or fear. They are, therefore, generally made by
ballot, except those by persons in their representative
capacities, which are viva voce. And to render this freedom as
perfect as possible, electors are generally exempted from arrest
in all cases, except treason, felony, or breach of the peace,
during their attendance on election, and in going to and
returning from them. And provisions are made by law, in several
states, to prevent the interference or appearance of the military
on the election ground.
4. One of the cardinal principles on the subject of elections
is, that the person who receives a majority or plurality of votes
is the person elected. Generally a plurality of the votes of the
electors present is sufficient; but in some states a majority of
all the votes is required. Each elector has one vote.
5. - 2. Elections by corporations or companies are made by the
members, in such a way its their respective constitutions or
charters direct. It is usual in these cases to vote a greater or
lesser number of votes in proportion as the voter has a greater
or less amount of the stock of the company or corporation, if
such corporation or company be a pecuniary institution. And the
members are frequently permitted to vote by proxy. See 7 John.
287; 9 John. 147; 5 Cowen, 426; 7 Cowen, 153; 8 Cowen, 387;
6 Wend. 509; 1 Wend. 98.
6. - §2. The election of things. 1. In contracts, when a;
debtor is obliged, in an alternative obligation, to do one of two
things, as to pay one hundred dollars or deliver one hundred
bushels of wheat, he has the choice to do the one or the other,
until the time of payment; he has not the choice, however, to
pay a part in each. Poth. Obl. part 2, c. 3, art. 6, No. 247; ll
John. 59. Or, if a man sell or agree to deliver one of two
articles, as a horse or an ox, he has the election till the time
of delivery; it being a rule that "in case an election be given
of two several things, always be, which is the first agent, and
which ought to do the first act, shall have the election." Co.
Litt. 145, a; 7 John. 465; 2 Bibb, R. 171. On the failure of
the person who has the right to make his election in proper time,
the right passes to the opposite party. Co. Litt. 145, a; Viner,
Abr. Election, B, C; Poth. Obl. No. 247; Bac. Ab. h. t. B; 1
Desaus. 460; Hopk. R. 337. It is a maxim of law, that an
election once made and pleaded, the party is concluded, electio
semel facta, et placitum testatum, non patitur regress-um. Co.
Litt. 146; 11 John. 241.
7.-2. Courts of equity have adopted the principle, that a
person shall not be permitted to claim under any instrument,
whether it be a deed or will, without giving full effect to it,
in every respect, so far as such person is concerned. This
doctrine is called into exercise when a testator gives what does
not belong to him, but to some other person, and gives, to that
person some estate of his own; by virtue of which gift a
condition is implied, either that he shall part with his own
estate or shall not take the bounty. 9 Ves. 515; 10 Ves. 609;
13 Ves. 220. In such a case, equity will not allow the first
legatee to, insist upon that by which he would deprive another
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legatee under the same will of the benefit to which he would be
entitled, if the first legatee permited the whole will to
operate, and therefore compels him to make his election between
his right independent of the will, and the benefit under it. This
principle of equity does not give the disappointed legatee the
right to detain the thing itself, but gives a right to
compensation out of something else. 2 Rop. Leg. 378, c. 23, s. 1.
In order to impose upon a party, claiming under a will, the
obligation of making an election, the intention of the testator
must be expressed, or clearly implied in the will itself, in two
respects; first, to dispose of that which is not his own; and,
secondly, that the person taking the benefit under the will
should, take under the condition of giving effect thereto. 6 Dow.
P. C. 179; 13 Ves. 174; 15 Ves. 390; 1 Bro. C. C. 492; 3 Bro.
C. C. 255; 3 P. Wms. 315; 1 Ves. jr. 172, 335; S. C. 2 Ves.
jr. 367, 371; 3 Ves. jr. 65; Amb. 433; 3 Bro. P. C. by Toml.
277; 1 B. & Beat. 1; 1 McClel. R. 424, 489, 541. See,
generally, on this doctrine, Roper's Legacies, c. 23; and the
learned notes of Mr. Swanston to the case Dillon v. Parker, 1
Swanst. R. 394, 408; Com. Dig. Appendix, tit. Election; 3
Desaus. R. 504; 8 Leigh, R. 389; Jacob, R. 505; 1 Clark & Fin.
303; 1 Sim. R. 105; 13 Price, R. 607; 1 McClel. R. 439; 1 Y.
& C. 66; 2 Story, Eq. Jur. §1075 to 1135; Domat, Lois Civ. liv.
4, tit. 2, §3, art. 3, 4, 5; Poth. Pand. lib. 30, t. 1, n. 125;
Inst. 2, 20, 4; Dig. 30, 1, 89, 7.
8. There are many other cases where a party may be compelled to
make an election, which it does not fall within the plan of this
work to consider. The reader will easily inform himself by
examining the works above referred to.
9. - 3. The law frequently gives several forms of action to the
injured party, to enable him to recover his rights. To make a
proper election of the proper remedy is of great importance. To
enable the practitioner to make the best election, Mr. Chitty, in
his valuable Treatise on Pleadings, p. 207, et seq., has very
ably examined the subject, and given rules for forming a correct
judgment; as his work is in the hands of every member of the
profession, a reference to it here is all that is deemed
necessary to say on this subject. See also, Hammond on Parties to
Actions; Brown's Practical Treatise on Actions at Law, in the
45th vol. of the Law Library; U. S. Dig. Actions IV.
ELECTION OF ACTIONS, practice. It is frequently at the choice
of the plaintiff what kind of an action to bring; a skilful
practitioner would naturally select that in which his client can
most easily prove what is his interest in the matter affected;
may recover all his several demands against the defendant; may
preclude the defendant from availing himself of a defence, which
be might otherwise establish; may most easily introduce his own
evidence; may not be embarrassed by making too. many or too few
persons parties to the suit; may try it in the county most
convenient to himself; may demand bail where it is for the
plaintiff's interest; may obtain a judgment with the least
expense and delay; may entitle himself to costs; and may demand
bail in error. 1 Chit. Pl. 207 to 214.
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2. It may be laid down as a general rule, that when a statute
prescribes a new remedy, the plaintiff has his election either to
adopt such remedy, or proceed at common law. Such statutory
remedy is cumulative, unless the statute expressly, or by
necessary implication takes away the Common law remedy. 1 S. & R.
32; 6 S. & R. 20; 5 John. 175; 10 John. 389; 16 John. 220; 1
Call, 243; 2 Greenl. 404; 5 Greenl. 38; 6 Harr. & John. 383;
4 Halst. 384; 3 Chit. Pr. 130.
ELECTION OF A DEVISE OR LEGACY. It is an admitted principle,
that a person shall not be permitted to claim under any
instrument, whether it be a deed or a will, without giving full
effect to it in every respect, so far as such person is
concerned. When a testator, therefore, gives what belongs to
another and not to him, and gives to the owner some estate of his
own; this gift is under an implied condition, either that he
shall part with his own estate, or not take the bounty. 9 Ves.
615; 10 Ves. 609; 13 Ves. 220; 2 Ves. 697; 1 Suppl. to Ves.
jr. 222; Id. 55; Id. 340. If, for example, a testator
undertakes to dispose of an estate belonging to B, and devise to
B other lands, or bequeath to him a legacy by the same will, B
will not be permitted to keep his own estate, and enjoy at the
same time the benefit of the devise or bequest made in his favor,
but must elect whether he will part with his own estate, and
accept the provisions in the will, or continue in possession of
the former and reject the latter. See 2 Vern. 5.81; Forr. 176;
1 Swanst. 436, 447 1 Rro. C. C. 480; 2 Rawle, 168; 17 S. & R.
16 2 Gill, R. 182, 201; 1 Dev. Eq. R. 283; 3 Desaus. 346; 6
John. Ch. R. 33; Riley, Ch. R. 205; 1 Whart. 490; 5 Dana, 345;
White's L. C. in Eq. *233.
2. The foundation of the equitable doctrine of election, is the
intention, explicit or presumed, of the author of the instrument
to which it is applied, and such is the, import of the expression
by which it is described as proceeding, sometimes on a tacit,
implied, or constructive condition, sometimes on equity. See Cas.
temp. Talb. 183; 2 Vern. 582; 2 Ves. 14; 1 Eden, R. 536; 1
Ves. 306. See, generally, 1 Swan. 380 to 408, 414, 425, 432,
several very full notes.
3. As to what acts of acceptance or acquiescence will
constitute an implied election, see 1 Swan. R. 381, n. a; and
the cases there cited.
ELECTOR, government. One who has the right to make choice of
public officers one, who has a right to vote.
2. The qualifications of electors are generally the same as
those required in the person to be elected; to this, however,
there is one exception; a naturalized citizen may be an elector
of president of the United States, although he could not
constitutionally be elected to that office.
ELECTORS OF PRESIDENT. Persons elected by the people, whose
sole duty is to elect a president and vice-president of the U. S.
2. The Constitution provides, Am. art. 12, that "the electors
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shall meet in their respective states, and vote by ballot for
president and vice-president, one of whom at least shall not be
an inhabitant of the same state with themselves; they shall name
in their ballots the person voted for as president, and in
distinct ballots the person voted for as vice-president; and
they shall make distinct lists of all persons voted fur as
president, and of all persons voted for as vice-president, and of
the number of votes for each; which list they shall sign and
certify, and transmit, sealed, to the seat of the government of
the United States, directed to the president of the senate; the
president of the senate shall, in the presence of the senate and
the house of representatives, open all the certificates, and the
votes shall then be counted; the person having the greatest
number of, votes for president, shall be the president, if such
number be the majority of the whole number of electors appointed;
and if no, person have such majority, then from the persons
having the highest numbers, not exceeding three, on the list of
those voted for as president, the house of representatives shall
choose immediately, by ballot, the president. But in choosing the
president, the votes shall be taken by states, the representation
from each state having one vote; a quorum, for this purpose,
shall consist of a member or members from two-thirds of the
states, and a majority of all the states shall be necessary to a
choice. And if the house of representatives shall not choose a
president whenever the right of choice shall devolve upon them,
before the fourth day of March next following, then the
vice-president shall act as president, as in the case of the
death or other constitutional disability of the president.
3. - 2. "The person having the greatest number of votes as
vice-president shall be vice-president, if such number be a
majority of the whole number of electors appointed and if no
person have a majority, them from the two highest numbers on the
list, the senate shall choose the vice-president; a quorum for
the purpose shall consist of two-thirds of the whole number of
senators, and a majority of the whole number shall be necessary
to a choice. But no person constitutionally ineligible to the
office of president, shall be eligible to that of vice-president
of the United States." Vide 3 Story, Const. §1448 to 1470.
ELEEMOSYNARY. Charitable alms-giving.
2. Eleemosynary corporations are colleges, schools, and
hospitals. 1 Wood. Lect. 474; Skinn. 447 1 Lord Raym. 5 2 T. R.
346.
ELEGIT, Eng. practice, remedies. A writ of execution directed
to the sheriff, commanding him to make delivery of a moiety of
the party's land, and all his goods, beasts of the plough only
excepted.
2. The sheriff, on the receipt of the writ, holds an inquest to
ascertain the value of the lands and goods he has seized, and
then they are delivered to the plaintiff, who retains them until
the whole debt and damages have been paid and satisfied; during
that term he is called tenant by elegit. Co. Litt. 289. Vide Pow.
Mortg. Index, h. t.; Wats. Sher. 206. As to the law of the
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several states on the subject. of seizing land and extending it.
see 1 Hill. Ab. 556-6.
ELIGIBILITY. Capacity to be elected.
2. Citizens are in general eligible to all offices; the
exceptions arise from the want of those qualifications which the
constitution requires; these are such as regard his person, his
property, or relations to the state.
3.- 1. In. general, no person is eligible to any office, until
he has attained the full age of twenty-one years; no one can be
elected a senator of the United States, who shall not have
attained the age of thirty years, been a 'citizen of th e United
States nine years and who shall not be an inhabitant of the,
state for which he shall be chosen. Const. art. 1, s. 3. No
person, except a natural born citizen, or a citizen of the United
States at the time of the adoption of this constitution, is
eligible to the office of president, and no person shall be
eligible to that office, who shall not have attained the age of
thirty-five years, and been fourteen years a resident within the
United States. Const. art. 2, s. 1.
4. - 2. A citizen may be ineligible in consequence of his
relations to the state; for example, holding an office
incompatible with the office sought. Vide Ineligibility. Because
he has not paid the taxes the law requires; because he has not
resided a sufficient length of time in the state.
5. - 3. He may be ineligible for want of certain property
qualifications required by some, law.
ELISORS, practice. Two persons appointed by the court to return
a jury, when the sheriff and the coroner have been challenged as
incompetent; in this case the elisors return the writ of venire
directed to them, with a panel of the juror's names, and their
return is final, no challenge being allowed to their array. 3 Bl.
Com. 355,; 3 Cowen, 296; 1 Cowen, 32.
ELL. A measure of length. In old English the word signifies
arm, which sense it still retains in the word elbow. Nature has
no standard of measure. The cubit, the ell, the span, palm, hand,
finger, (being taken from the individual who uses them) varies.
So of the foot, pace, mile, or mille passuum. See Report on
Weights and Measures, by the Secretary of State of the United.
States, Feb. 22, 1821; Fathom.
ELOIGNE, practice. This word signifies, literally, to remove to
a distance; to remove afar off. It is used as a return to a writ
of replevin, when the chattels have been removed out of the way
of the sheriff. Vide Elongata.
ELONGATA, practice. There turn made by the sheriff to a writ of
replevin, when the goods have been removed to places unknown to
him. See, for the form of this return, Wats. Sher. Appx. c. 18,
.s. 3, p. 454; 3 Bl. Com. 148.
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2. On this return the plaintiff is entitled to a capias in
withernam. Vide Withernam, and Wats. Sher. 300, 301. The word
eloigne, (q. v.) is sometimes used as synonymous with elongata.
ELOPEMENT. This term is used to denote the departure of a
married woman from her hushand, and dwelling with an adulterer.
2. While the wife reides with her hushand, and cohabits with
him, however exceptionable her conduct may be, yet he is bound to
provide her with necessaries, and to pay for them; but when she
elopes, the hushand is no longer liable for her alimony, and is
not bound to pay debts of her contracting when the separation is
notorious; and whoever gives her credit under these
circumstances, does so at his peril. Chit. Contr. 49; 4 Esp. R.
42; 3 Pick. R. 289; 1 Str. R. 647, 706; 6 T. R. 603; 11 John.
R. 281; 12 John. R. 293; Bull. N. P. 135; Stark. Ev. part 4,
p. 699.
ELOQUENCE OR ORATORY. The act or art of speaking well upon any
subject with a view to persuade. It comprehends a good elocution,
correct and appropriate expressions uttered. with fluency,
animation and suitable action. The principal rules of the art,
which must be sought for in other works, are summarily expressed
in the following lines:
" Be brief, be pointed; let your matter stand
Lucid in order, solid, and at hand;
Spend not your words on trifles, but condense;
Strike with the mass of thoughts, not drops of sense;
Press to the close with vigor once begun,
And leave, (how hard the task!) leave off when done;
Who draws a labor'd length of reasoning out,
Put straws in lines for winds to whirl about;
Who draws a tedious tale of learning o'er,
Counts but the sands on ocean's boundless shore;
Victory in law is gain'd as battle's fought,
Not by the numbers, but the forces brought;
What boots success in skirmishes or in fray,
If rout and ruin following close the day?
What worth a hundred Posts maintained with skill,
If these all held, the foe is victor still?
He who would win his cause, with power must frame
Points of support, and look with steady aim:
Attack the weak, defend the strong with art,
Strike but few blows, but strike them to the heart;
All scatter'd fires but end in smoke and noise,
The scorn of men, the idle play of boys.
Keep, then, this first great precept ever near,
Short be your speech, your matter strong and clear,
Earnest your manner, warm and rich your style,
Severe in taste, yet full of grace the while;
So may you reach the loftiest heights of fame,
And leave, when life is past, a deathless name."
ELSEWHERE. In another place.
2. Where one devises all his land in A, B and C, three distinct
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towns, and elsewhere, and had lands of much greater value than
those in A, B and C, in another county, the lands in the other
county were decreed to pass by the word elsewhere; and by Lord
Chancellor King, assisted by Raymond, Ch. J., and other judges,
the word elsewhere, was adjudged to be the same as if the
testator had said he devised all his lands in the three towns
particularly mentioned, or in
any other place whatever. 3 P. Wms. 5 6. See also Prec. Chan.
202; 2 Vern. 461; 2 Vern. 560; 3 Atk. 492; Cowp. 860; Id.
808; 2 Barr. 912; 5 Bro. P. C. 496; S. C. 1 East, 456; 1
Vern. 4 n.
3. - 2. As to the effect of the word elsewhere, in the case of
lands not purchased at the time of making the will, see 3 Atk.
254; 2 Vent. 351. Vide Alibi.
EMANCIPATION. An act by which a person, who was once in the
power of another, is rendered free. B y the laws of Louisiana,
minors may be emancipated. Emancipation is express or implied.
2. Express emancipation. The minor may be emancipated by his
father, or, if be has no father, by his mother, under certain
restrictions. This emancipation takes place by the declaration,
to that effect, of the father or mother, before a notary public,
in the presence of two witnesses. The orphan minor may, likewise,
be emancipated by the judge, but not before he has arrived at the
full age of eighteen years, if the family meeting, called to that
effect, be of opinion that he is able to administer his property.
The minor may be emancipated against the will of his father and
mother, when they ill treat him excessively, refuse him support,
or give him corrupt example.
3. The marriage of the minor is an implied emancipation.
4. The minor who is emancipated has the full administration of
his estate, and may pass all act's which may be confined to such
administration; grant leases, receive his revenues and moneys
which may be due him, and give receipts for the same. He cannot
bind himself legally, by promise or obligation, for any sum
exceeding the amount of one year of his revenue. When he is
engaged in trade, he is considered as leaving arrived to the age
of majority, for all acts which have any relation to such trade.
5. The emancipation, whatever be the manner in. which it may
have been effected, may be revoked, whenever the minor contracts
engagements which exceed the limits prescribed by law.
6. By the English law, filial emancipation is recognized,
chiefly, in relation to the parochial settlement of paupers. See
3 T. R. 355; 6 T. R. 247; 8 T. R. 479; 2 East, 276; 10 East,
88.; 11 Verm. R. 258, 477. See Manumission. See Coop. Justin.
441, 480; 2 Dall. Rep. 57, 58; Civil Code of Louisiana, B. 1,
tit. 8, c. 3; Code Civ. B. 1, tit. 10, c. 2; Diet. de Droit,
par Ferriere; Diet. de Jurisp. art. Emancipation.
EMBARGO, maritime law. A proclamation, or order of state,
usually issued in time of war, or threatened hostilities,
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prohibiting the departure of ships or goods from some, or all the
ports of such state, until further order. 2 Wheat. 148.
2. The detention of ships by an embargo is such an injury to
the owner as to entitle him to recover on a policy of insurance
against "arrests or detainments." And whether the embargo be
legally or illegally laid, the injury to the owner is the same;
and the insurer is equally liable for the loss occasioned by it.
Marsh. Ins. B. 1, c. 12, s. 5; 1 Kent, Com. 60 1 Bell's Com.
517, 5th ed.
3. An embargo detaining a vessel at the port of departure, or
in the course of the voyage, does not, of itself, work a
dissolution of a charter party, or the contract with the seamen.
It is only a temporary restraint imposed by authority for
legitimate political purposes, which suspends, for a time, the
performance of such contracts, and leaves the rights of parties
untouched, 1 Bell's Com. 517; 8 T. R. 259; 5 Johns. R. 308; 7
Mass. R. 325 , 3 B. & P. 405-434; 4 East, R. 546-566.
EMBEZZLEMENT, crim. law. The fraudulently removing and
secreting of personal property, with which the party has been
entrusted, for the purpose of applying it to his own use.
2. The Act of April 30, 1790, s. 16, 1 Story, L. U. S. 86,
provides, that if any person, within any of the laces under the
sole and exclusive jurisdiction of the United States, or upon the
high seas, shall take and carry away, with an intent to steal or
purloin, the personal goods of another; or if any person or
persons, having, at any time hereafter, the charge or custody of
any arms, ordnance, munition, shot, powder, or habiliments of
war, belonging to the. United States, or of any victuals provided
for the victualling of any soldiers, gunners, marines, or
pioneers, shall, for any lucre or gain, or wittingly, advisedly,
and of purpose to hinder or impede the service of the United
States, embezzle, purloin, or convey away, any of the said arms,
ordnance, munition, shot or powder, habiliments of war, or
victuals, that then, and in every of the cases aforesaid, the
persons so offending, their counsellors, aiders and abettors,
(knowing of, and privy to the offences aforesaid,) shall, on
conviction, be fined, not exceeding the fourfold value of the
property so stolen, embezzled or purloined the one moiety to be
paid to the owner of the goods, or the United States, as the case
may be, and the other moiety to the informer and prosecutor, and
be publicly whipped, not exceeding thirty-nine stripes.
3. The Act of April 20, 1818, 3 Story, 1715, directs that wines
and distilled spirits shall, in certain cases, be deposited in
the public warehouses of the United States, and then it is
enacted, s. 5, that if any wines, or other spirits, deposited
under the provisions of this act, shall be embezzled, or
fraudulently hid or removed, from any store or place wherein they
shall have been deposited, they shall be forfeited, and the
person or persons so embezzling, hiding, or removing the same, or
aiding or assisting therein, shall be liable to the same pains
and penalties as if such wines or spirits had been fraudulently
unshipped or landed without payment of duty.
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4. By the 21st section of the act to reduce into one the
several acts establishing and regulating the post-office, passed
March 3, 1825, 3 Story, 1991, the offence of embezzling letters
is punished with fine and imprisonment. Vide Letter.
5. The act more effectually to provide for the punishment of
certain crimes against the United States, and for other purposes,
passed March 3, 1825, s. 24, 3 Story, 2006, enacts, that if any
of the gold or silver coins which shall be struck or coined at
the mint of the United States, shall be debased, or made worse,
as to the proportion of fine gold or fine silver therein
contained, or shall be of less weight or value than the same
ought to be, pursuant to the several acts relative thereto,
through the default or with the connivance of any of the officers
or persons who shall be employed at the said mint, for the
purpose of profit or gain, or otherwise, with a fraudulent intent
and if any of the said officers or persons shall embezzle any of
the metals which shall, at any time, be committed to their charge
for the purpose of being coined; or any of the coins which shall
be struck or coined, at the said mint; every such officer, or
person who shall commit any, or either, of the said offences,
shall be deemed guilty of felony, and shall be sentenced to
imprisonment and hard labor for a term not less than one year,
nor more than ten years, and shall be fined in a sum not
exceeding ten thousand dollars.
6. When an embezzlement of a part of the cargo takes place on
board of a ship, either from the fault, fraud, connivance or
negligence of any of the crow, they are bound to contribute to
the reparation of the loss, in proportion to their wages. When
the embezzlement is fixed on any individual, he is solely
responsible; when it is made by the crew, or some of the crew,
but the particular offender is unknown, and from the
circumstances of the case, strong presumptions of guilt apply to
the whole crew, all must contribute. The presumption of innocence
is always in favor of the crew, and the guilt of the parties must
be established, beyond all reasonable doubt, before they can be
required to contribute. 1 Mason's R. 104; 4 B. & P. 347; 3
Johns. Rep. 17; 1 Marsh. Ins. 241; Dane's Ab. Index, h. t.;
Wesk. Ins. 194; 3 Kent, Com., 151; Hardin, 529.
EMBLEMENTS, rights. By this term is understood the crops
growing upon the land. By crops is here meant the products of the
earth which grow yearly and are raised by annual expense and
labor, or "great manurance and industry," such as grain; but not
fruits which grow on trees which are not to be planted yearly, or
grass, and the like, though they are annual. Co. Litt. 55, b;
Com. Dig. Biens, G; Ham. Part. 183, 184.
2. It is a general rule, that when the estate is terminated by
the act of God in any other way than by the death of the tenant
for life, or by act of the law, the tenant is entitled to the
enablements; and when he dies before harvest time, his executors
shall have the emblements, as a return for the labor and expense
of the deceased in tilling the ground. 9 Johns. R. 112; 1 Chit.
P. 91: 8 Vin. Ab. 364 Woodf. L. & T. 237 Toll. Ex. book 2, c. 4;
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Bac. Ab Executors, H 3; Co. Litt. 55; Com. Dig. Biens G.;
Dane's Ab. Index, h. t.; 1 Penna. R. 471; 3 Penna. 496; Ang.
Wat. Co. 1 Bouv. Inst. Index, h. t.
EMBRACEOR, criminal law. He who, when a matter is on trial
between party and party, comes to the bar with one of the
parties, and having received some reward so to do, speaks in the
case or privily labors the jury, or stands there to survey or
overlook them, thereby to put them in fear and doubt of the
matter. But persons learned in the law may speak in a case for
their clients. Co. Litt. 369; Terms de la Ley. A person who is
guilty of embracery. (q. v.)
EMBRACERY, crim. law. An attempt to corrupt or influence a
jury, or any way incline them to be more favorable to the one
side than to the other, by money, promises, threats, or
persuasions; whether the juror on whom such attempt is made give
any verdict or not, or whether the Verdict be true or false.
Hawk. 259; Bac. Ab. Juries, M 3; Co. Litt. 157, b, 369, a;
Hob. 294; Dy. 84, a, pl. 19; Noy, 102; 1 Str. 643; 11 Mod.
111, 118; Com. 601; 5 Cowen, 503.
EMENDALS, Eng. law. This ancient word is said to be used in the
accounts of the inner temple, where so much in emendals at the
foot of an account signifies so much in bank, in stock, for the
supply of emergencies. Cunn. Law Dict.
EMIGRANT. One who quits his country for any lawful reason, with
a design to settle elsewhere, and who takes his family and
property, if he has any, with him. Vatt. b. 1, c. 19, §224.
EMIGRATION. The act of removing from one place to another. It
is sometimes used in the same sense as expatriation, (q. v.) but
there is some difference in the signification. Expatriation is
the act of abandoning one's country, while emigration is, perhaps
not strictly, applied to the act of removing from one part of the
country to another. Vide 2 Kent, Com. 36.
EMINENCE; A title of honor given to cardinals.
EMINENT DOMAIN. The right which people or government retain
over the estates of individuals, to resume the same for public
use.
2. It belongs to the legislature to decide what improvements
are of sufficient importance to justify the exercise of the right
of eminent domain. See 2 Hill. Ab. 568 1 U. S. Dig. 560; 1 Am.
Eq. Dig. 312 3 Toull. n. 30 p. 23; Ersk. hist. B. 2) tit. 1, s.
2; Grotius, h. t. See Dominium.
EMISSARY. One who is sent from one power or government into
another nation for the purpose of spreading false rumors and to
cause alarm. He differs from a spy. (q. v.)
EMISSION, med. jur. The act by which any matter whatever is
thrown from the body; thus it is usual to say, emission of
urine, emission of semen, &c.
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2. In cases of rape, when the fact of penetration is proved, it
may be left to the jury whether emission did or did not take
place. Proof of emission would perhaps be held to be evidence of
penetration. Addis. R. 143; 2 So. Car. Const. R. 351; 2 Chitty,
Crim. Law, 810; 1 Beck's Med. Jur. 140 1 Russ. C. & M. 560; 1
East, P. C. 437.
TO EMIT. To put out; to send forth,
2. The tenth section of the first article of the constitution,
contains various prohibitions, among which is the following: No
state shall emit bills of credit. To emit bills of credit is to
issue paper intended to circulate through the-community for its
ordinary purposes, as money, which paper is redeemable at a
future day. 4 Pet. R. 410, 432; Story on Const. §1358. Vide
Bills of credit.
EMMENAGOGUES, med. jur. The name of a class of medicines which
are believed to have the power. of favoring the discharge of the
menses. These are black hellebore, savine, (vide Juneperius
Sabina,) madder, mercury, polygala, senega, and pennyroyal. They
are sometimes used for the criminal purpose of producing
abortion. (q. v.) They always endanger the life of the woman. 1
Beck's Medical Jur. 316; Dungl. Med. Diet. h. t.; Parr's Med.
Dict. h. t.; 3 Paris and Fonbl. Aled. Jur. 88.
EMOLUMENT. The lawful gain or profit which arises from an
office.
EMPALEMENT. A punishment in which a sharp polo was forced up
the fundament. Encyc. Lond. h. t.
TO ENPANEL, practice. To make a list or roll, by the sheriff or
other authorized officer, of the names of jurors who are summoned
to appear for the performance of such service as jurors are
required to perform.
EMPEROR, an officer. This word is synonymous with the Latin
imperator; they are both derived from the. verb imperare.
Literally, it signifies he who commands.
2. Under the Roman republic, the title emperor was the generic
name given to the commanders-in-chief in the armies. But even
then the application of the word was restrained to the successful
commander, who was declared emperor by the acclamations of the
army, and was afterwards honored with the title by a decree of
the senate. 3. It, is now used to designate some sovereign prince
who bears this title. Ayl. Pand. tit. 23.
EMPHYTEOSIS, civil law. The name of a contract by which the
owner of an uncultivated piece of land granted it to another
either in perpetuity, or for a long time, on condition that he
should: improve it, by building, planting or cultivating it, and
should pay for it an annual rent; with a right to the grantee to
alienate it, or transmit it by descent to his heirs, and under a
condition that the grantor should never re-enter as long as the
rent should be paid to him by the grantee or his assigns. Inst.
3, 25, 3. 18 Toull. n. 144.
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2. This has a striking resemblance to a ground-tent. (q. v.).
See Nouveau Denisart, mot, Emphyteose; Merl. Reper. mot
Emphyteose; Faber, De jure emphyt. Definit. 36; Code, 4, 66, 1.
EMPIRE. This word signifies, first, authority or command; it
is the power to command or govern those actions of men which
would otherwise be free; secondly, the country under the
government of an emperor but sometimes it is used to designate a
country subject to kingly power, as the British empire. Wolff,
Inst. §833.
EMPLOYED. One who is in the service of another. Such a person
is entitled to rights and liable to. perform certain duties.
2. He is entitled to a just compensation for his services;
when there has been a special contract, to what has been agreed
upon; when not, to such just recompense as he deserves.
3. He is bound to perform the services for which he has engaged
himself; and for a violation of his engagement he may be sued,
but he is not liable to corporal correction. An exception to this
rule may be mentioned; on the ground of necessity, a sailor may
be punished by reasonable correction, when it is necessary for
the safety of the vessel, and to maintain discipline. 1 Bouv.
Inst. n. 1001: 2 Id. n. 2296.
EMPLOYEE. One who is authorized to act for another; a
mandatory.
EMPLOYMENT. An employment is an office; as, the secretary of
the treasury has a laborious and responsible employment; an
agency, as, the employment of an auctioneer; it signifies also
the act by which one is engaged to do something. 2 Mart. N. S.
672; 2 Harr. Cond. Lo. R. 778.
2. The employment of a printer to publish the laws of the
United States, is not an office. 17 S. & R. 219, 223. See
Appointment.
EMPLOYER. One who has engaged or hired the services of another.
He is entitled to rights and bound to perform duties.
2. - 1. His rights are, to be served according to the terms of
the contract. 2. He has a right against third persons for an
injury to the person employed, or for harboring him, so as to
deprive the employer of his services. 2 Bouv. Inst. n. 2295.
3. His duties are to pay the workman the compensation agreed
upon, or if there be no special agreement, such just recompense
as he deserves. Vide Hire; Hirer.
EMPTION. The act of buying.
EMPTOR. A buyer; a purchaser.
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EN DEMEURE. In default. This term is used in Louisiana. 3 N. S.
574. See Moral in.
ENABLING POWERS. A term used in equity. When the donor of a
power, who is the owner of the estate, confers upon persons not
seised of the fee, the right of creating interests to take effect
out of it, which could not be done by the donee of the power,
unless by such authority; this is called an enabling power. 2
Bouv. Inst. n. 1928.
TO ENACT. To establish by law; to perform or effect; to
decree. The usual formula in making laws is, Be it enacted.
ENCEINTE, med. jur. A French word, which signifies pregnant.
2. When a woman is pregnant, and is convicted of a capital
crime, she cannot lawfully be punished till after her delivery.
3. in the English law, where a widow is suspected to feign
herself with child, in order to produce a supposititious heir to
the estate, the presumptive heir may have a writ de ventre
inspiciendo, to examine whether she be with child or not. Cro.
Eliz. 566; 4 Bro. C. C. 90. As to the signs of pregnancy, see 1
Beck's Med. Jur. 157. See, generally, 4 Bl. Com. 894; 2 P. Wms.
591; 1 Cox, C. C. 297 and Pregnancy; Privement enceinte.
ENCLOSURE. An artificial fence put around one's estate. Vide
Close.
ENCROACHMENT. An unlawful gaining upon the right or possession
of another; as, when a man sets his fence beyond his line; in
this case the proper remedy for the party injured is an action of
ejectment, or an action of trespass.
ENCUMBRANCE. A burden or charge upon an estate or property, so
that it cannot be disposed of without being subject to it. A
mortgage, a lien for taxes, are examples of encumbrances.
2. These do not affect the possession of the grantee, and may
be removed or extinguished by a definite pecuniary value. See 2
Greenl. R. 22; 5 Greenl. R. 94.
3. There are encumbrances of another kind which cannot be so
removed, such as easements for example, a highway, or a
preexisting right to take water from, the land. Strictly
speaking, however, these are not encumbrances, but appurtenances
to estates in other lands, or in the language of the civil law,
servitudes. (q. v.) 5 Conn. R. 497; 10 Conn. R. 422 15 John. R.
483; and see 8 Pick. R. 349; 2 Wheat. R. 45. See 15 Verm. R.
683; l Metc. 480; 9 Metc. 462; 1 App. R. 313; 4 Ala. 21; 4
Humph. 99; 18 Pick. 403; 1 Ala. 645; 22 Pick. 447; 11 Gill &
John. 472.
ENDEAVOR, crim. law. An attempt. (q. v.) Vide Revolt.
ENDORSEMENT. Vide Indorsement.
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ENDOWMENT. The bestowing or assuring of a dower to a woman. It
is sometimes used: metaphorically, for the setting a provision
for a charitable institution, as the endowment of a hospital.
ENEMY, international law. By this term is understood the whole
body of a nation at war with another. It also signifies a citizen
or subject of such a nation, as when we say an alien enemy. In a
still more extended sense, the word includes any of the subjects
or citizens of a state in amity with the United States, who, have
commenced, or have made preparations for commencing hostilities
against the United States; and also the citizens or subjects of
a state in amity with the United States, who are in the service
of a state at war with them. Salk. 635; Bac. Ab. Treason, G.
2. An enemy cannot, as a general rule, enter into any contract
which can be enforeed in the courts of law; but the rule is not
without exceptions; as, for example, when a state permits
expressly its own citizens to trade with the enemy; and perhaps
a contract for necessaries, or for money to enable the individual
to get home, might be enforced. 7 Pet. R . 586.
3. An alien enemy cannot, in general, sue during the war, a
citizen of the United States, either in the courts of, the United
States, or those of the several states. 1 Kent, Com. 68; 15
John. R. 57 S. C. 16 John. R. 438. Vide Marsh. Ins. c. 2, s. 1;
Park. Ins. Index. h. t.; Wesk. Ins. 197; Phil. Ins. Index. h.
t.; Chit. Comm. Law, Index, h. t.; Chit. Law of Nations, Index,
h. t.
4. By the term enemy is also understood, a person who is
desirous of doing injury to another. The Latins had two terms to
signify these two classes of persons; the first , or the public
enemy, they called hostis, and the latter, or the private enemy,
inimicus.
TO ENFEOFF. To make a gift of any corporeal hereditaments to
another. Vide Feoffment.
TO ENFRANCHISE. To make free to incorporate a man in a society
or body politic. Cunn. L. D. h. t. Vide Disfranchise.
ENGAGEMENT. This word is frequently used in the French law to
signify not only a contract, but the obligations arising from a
quasi contract. The terms obligations (q. v.) and engagements,
are said to be synonymous 17 Toull. n. 1; but the Code seems
specially to apply the term engagement to those obligations which
the law, imposes on a man without the intervention of any
contract, either on the part of the obligor or the obligee. Art.
1370.
ENGLESHIRE. A law was made by Canutus, for the preservation of
his Danes, that when a man was killed, the hundred or town should
be liable to be amerced, unless it could be proved that the
person killed was an Englishman. This proof was called
Engleshire. It consisted, generally, of the testimony of two
males on the part of the father of him that had been killed, and
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two females on the part of his mother. Hal. Hist. P . C. 447; 4
Bl. Com. 195; Spelman, Gloss. See Francigena .
TO ENGROSS, practice, conveyancing. To copy the rude draught of
an instrument in a fair and large hand. See 3 Bouv. Inst. n,
2421, note.
ENGROSSER. One who purchases large quantities of any
commodities in order to have the command of the market, and to
sell them again at high prices.
TO ENJOIN. To command; to require; as, private individuals
are not only permitted, but enjoined by law to arrest an offender
when present at the time a felony is committed or dangerous wound
given, on pain of fine and imprisonment if the wrong doer escape
through their negligence. 1 Hale, 587; 1 East, P. C. 298,304;
Hawk. B. 2, c. 12, s. 13; R. & M. C. C. 93. 2. In a more
technical sense, to enjoin, is to command or order a defendant in
equity to do or not to do a particular thing by writ of
injunction. Vide Injunction.
TO ENLARGE. To extend; as, to enlarge a rule to plead, is to
extend the time during which a defendant may plead. To enlarge,
means also to set at liberty; as, the prisoner was enlarged on
giving bail.
ENLARGING. Extending or making more comprehensive; as an
enlarging statute, which is one extending the common law.
ENTIA PARS. The part of the eldest. Co. Litt. 166; Bac. Ab.
Coparceners, C. 2. When partition is voluntarily made among
coparceners in England, the eldest has the first choice, or
primer election, (q. v.) and the part which she takes is called
enitia pars. This right is purely personal, and descends; it is
also said that even her as signee shall enjoy it; but this has
also been doubted. The word enitia is said to be derived from the
old French, eisne the eldest. Bac. Ab. Coparceners, C; Keilw. 1
a, 49 a; 2 And. 21; Cro. Eliz. 18.
ENJOYMENT. The right which a man possesses of receiving all the
product of a thing for his necessity, his use, or his pleasure.
ENLISTMENT. Thc act of making a contract to serve the
government in a subordinate capacity, either in the army or navy.
The contract so made, is also called an enlistment. See, as to
the power of infants to enlist, 4 Binn. 487; .5 Binn. 423;
Binn. 255; 1 S. & R. 87; 11 S. & R. 93.
ENORMIA. Wrongful acts. See Alia Enormia.
TO ENROLL. To register; to enter on the rolls of chancery, or
other court's; to make a record.
ENROLLMENT, Eng. law. The registering, or entering in the rolls
of chancery, king's bench, common pleas, or exchequer, or by the
clerk of the peace in the records of the quarter sessions, of any
lawful act; as a recognizance, a deed of bargain and sale, and
the like. Jacob, L. D.
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TO ENTAIL. To create an estate tail. Vide Tail.
ENTIRE. That which is not divided; that which is whole.
2. When a contract is entire, it must in general be fully
performed, before the party can claim the compensation which was
to have been paid to him; for example, when a man hires to serve
another for one year, he will not be entitled to leave him at any
time before the end of the year, and claim compensation for the
time, unless it be done by the consent or default of the party
hiring. 6 Verm. R. 35; 2 Pick. R. 267; 4 Pick. R. 103 10 Pick.
R. 209; 4 McCord's R. 26, 246; 4 Greenl. R. 454; 2 Penna. R.
454; 15 John. R. 224; 4 Pick. R. 114; 9 Pick. R. 298 19 John.
R. 337; 4 McCord, 249; 6 Harr. & John. 38. See Divisible.
ENTIRETY, or, ENTIERTIE. This word denotes the whole, in
contradistinction to moiety, which denotes the half part. A
hushand and wife, when jointly seized of land, are seized by
entierties and not "pur mie" as joint tenants are. Jacob's Law
Dict.; 4 Kent, 362; 2 Kent, 132; Hartv. Johnson, 3 Penna. Law
Journ. 350, 357.
ENTREPOT. A warehouse; a magazine where goods are deposited,
and which are again to be removed.
ENTRY. criminal law. The unlawful breaking into a house, in
order to commit a crime. In cases of burglary, the least entry
with the whole or any part of the body, hand, or foot, or with
any instrument or weapon, introduced for the purpose of
committing a felony, is sufficient to complete the offence. 3
Inst. 64.
ENTRY, estates, rights. The taking possession of lands by the
legal owner. 2. A person having a right of possession may assert
it by a peaceable entry, and being in possession may retain it,
and plead that it is his soil and freehold; and this will not
break in upon any rule of law respecting the mode of obtaining
the possession of lands. 3 Term Rep. B. R. 295. When another
person has taken possession of lands or tenements, and the owner
peaceably makes an entry thereon, and declares that be thereby
takes possession of the same, he shall, by this notorious act of
ownership, which is equal to a feodal investiture, be restored to
his original right. 3 Bl. Com. 174. 3. A right of entry is not
assignable at common law. Co. Litt. 214 a. As to the law on this
subject in the United States, vide Buying of titles; 4 Kent,
Com. 439 2 Hill. Ab. c. 33, §42 to 52; also, article ReEntry;
Bac. Ab. Descent, G; 8 Vin. Ab. 441.
4. In another sense, entry signifies the going upon another
man's lands or his tenements. An entry in this sense may be
justifiably made on another's land or house, first, when the law
confers an authority; and secondly, when the party has authority
in fact.
5. First, 1. An officer may enter the close of one against
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whose person or property he is charged with the execution of a
writ. In a civil case, the officer cannot open (even by
unlatching) the outer inlet to a house, as a door or window
opening into the street 18 Edw. IV., Easter, 19, pl. 4; Moore,
pl. 917, p. 668 Cooke's case, Wm. Jones, 429; although it has
been closed for the purpose of excluding him. Cowp. 1. But in a
criminal case, a constable may break open an outer door to arrest
one within suspected of felony. 13 Edw. IV., Easter, 4, p. 9. If
the outer door or window be open, he may enter through it to
execute a civil writ; Palin. 52; 5 Rep. 91; and, having
entered, he may, in every case, if necessary, break open an inner
door. 1 Brownl. 50.
6. - 2. The lord may enter to distrain, and go into the house
for that purpose, the outer door being open. 5 Rep. 91.
7. - 3. The proprietors of goods or chattels may enter the land
of another upon which they are placed, and remove them, provided
they are there without his default; as where his tree has blown
down into the adjoining close by the wind, or his fruit has
fallen from a branch which overhung it. 20 Vin. Abr. 418.
8. - 4. If one man is bound to repair bridge, he has a right of
entry given him by law for that purpose. Moore, 889.
9. - 5. A creditor has a right to enter the close of his debtor
to demand the duty owing, though it is not to be rendered there.
Cro. Eliz. 876.
10. - 6. If trees are excepted out of a demise, the lessor has
the right of entering, to prune or fell them. Cro. Eliz. 17; 11.
Rep. 53.
11. - 7. Every traveller has, by law, the privilege of entering
a common inn, at all seasonable times, provided the host has
sufficient accommodation, which, if he has not, it is for him to
declare.
12.- 8. Ever man may throw down a public nuisance, and a
private one may be thrown down by the party grieved, and this
before an prejudice happens, but only from the probability that
it may happen. 5 Rep, 102 and see 1 Brownl. 212; 12 Mod. 510 Wm.
Jones, 221; 1 Str. 683. To this end, the abator has authority to
enter the close in which it stands. See Nuisance.
13. - 9. An entry may be made on the land of another, to
exercise or enjoy therein an incorporeal right or hereditament to
which he is entitled. Hamm. N. P. 172. See general Bouv. Inst.
Index, h. t.; 2 Greenl. Ev. §627; License.
ENTRY, commercial law. The act of setting down the particulars
of a sale, or other transaction, in a merchant's or tradesman's
accouut books; such entries are, in general, prima facie
evidence of the sale and delivery, and of work, done; but unless
the entry be the original one, it is not evidence. Vide Original
entry.
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ENTRY AD COMMUNE LEGEM, Eng. law. The name of a writ which lies
in favor of the reversioner, when the tenant for term of life,
tenant for term of another's life, tenant by the curtesy, or
tenant in dower, aliens and dies. T. L.
ENTRY OF GOODS, commercial law. An entry of goods at the
custom-house is the submitting to the officers appointed by law,
who have the collection of the customs, goods imported. into the
United States, together with a statement or description of such
goods, and the original invoices of the same. The act of March 2,
1799, s. 36, 1 Story, L. U. S. 606, and the act of March 1, 1823,
3 Story, L. U. S. 1881, regulate the manner of making entries of
goods.
ENTRY, WRIT OF. The name of a writ issued for the purpose of
obtaining possession of land from one who has entered unlawfully,
and continues in possession. This is a mere possessor action, and
does not decide the right of property.
2. The writs of entry were commonly brought, where the tenant
or possessor of the land entered lawfully; that is, without
fraud or force; 13 Edw. I. c. 25; although sometimes they wer6
founded upon an entry made by wrong. The forms of these writs are
very various, and are adapted to the, title and estate of the
demandant. Booth enumerates and particularly discusses twelve
varieties. Real Actions, pp. 175-200. In general they contain an
averment of the manner in which the defendant entered. At the
common law these actions could be brought only in the degrees,
but the Statute of Marlbridge, c. 30; Rob. Dig. 147, cited as c.
29; gave a writ adapted to cases beyond the degrees, called a
writ of entry in the post. Booth, 172, 173. The denomination of
these writs by degrees, is derived from the circumstance that
estates are supposed by the law to pass by degrees from one
person to another, either by descent or purchase. Similar to this
idea, or rather corresponding with it, are the gradations of
consanguinity, indicated by the very common term pedigree. But in
reference to the writs of entry, the degrees recognized were only
two, and the writs were quaintly termed writs in the per, and
writs in the per and cui. Examples of these writs are given in
Booth on R. A. pp. 173, 174. The writ in the, per runs thus: "
Command A, that be render unto B, one messuage, &c., into which
he has not entry except (per) by &c. The writ in the per and cui
contains another gradation in the transmission of the estate, and
read thus: Command A, that he render, &c., one messuage, into
which he hath not entry but (per) by C, (cui) to whom the
aforesaid B demised it for a term of years, now expired," &c. 2
Institute, 153; Co. Litt. b, 239, a. Booth, however, makes three
degrees, by accounting the estate in the per, the second degree.
The difference is not substantial. If the estate had passed
further, either by descent or conveyance, it was said to be out
of the degrees, and to such cases the writ of entry on the.
statute of Marlbridge, only, was applicable. 3 Bl. Com. 181, 182;
Report of Com. to Revise Civil Code of Penna. January 15, 1835,
p. 85. Vide Writ of entry.
TO ENURE. To take, or have effect or serve to the use, benefit,
or advantage of a person. The word is often written inure. A
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release to the tenant for life, enures to him in reversion; that
is, it has the same effect for him as for the tenant for life. A
discharge of the principal enures to the benefit of the surety.
ENVOY, international law. In diplomatic language, an envoy is a
minister of the second rank, on whom his sovereign or government
has conferred a degree of dignity and respectability, which,
without being on a level with an ambassador, immediately follows,
and among ministers, yields the preeminence to him alone.
2. Envoys are either ordinary or extraordinary; by custom the
latter is held in greater consideration. Vattel, liv. 4, c. 6,
§72.
EPILEPSY, med. jur. A discase of the brain, which occurs in
paroxysms, with uncertain intervals between them.
2. These paroxysms are characterized by the loss of sensation,
and convulsive motions of the muscles. When long continued and
violent, this disease is very apt to end in dementia. (q. v.) It
gradually destroys the memory, and impairs the intellect, and is
one of the causes of an unsound mind. 8 Ves. 87. Vide Dig. 50,
16, 123; Id. 21, 1, 4, 5.
EPISCOPACY, eccl. law. A form of government by diocesan
bishops; the office
or condition of a bishop.
EPISTLES, civil law. The name given to a species of rescript.
Epistles were the answers given by the prince, when magistrates
submitted to him a question of law. Vicle Rescripts.
EQUALITY. Possessing the same rights, and being liable to the
same duties. See 1 Toull. No. l70, 193, Int.
2. Persons are all equal before the law, whatever adventitious
advantages some may possess over others. All persons are
protected by the law, and obedience to it is required from all.
3. Judges in court, while exercising their functions, are all
upon an equality, it being a rule that inter pares non est
potestas; a judge cannot, therefore, punish another judge of the
same court for using any expression in court, although the words
used might have been a contempt in any other person. Bac. Ab., Of
the court of sessions, of justices of the peace.
4. In contracts the law presumes the parties act upon a perfect
equality; when, therefore, one party uses any fraud or deceit to
destroy this equality, the party grieved may avoid the contract.
In case of a grant to two or more persons jointly, without
designating what each takes, they are presumed to take in equal
proportion. 4 Day, 395.
5. It is a maxim, that when the equity of the parties is equal,
the law must prevail. 3 Call, R. 259. And that, as between
different creditors, equality is equity. 4 Bouv. Inst. n. 3725;
1 Page, R. 181. See Kames on Eq. 75. Vide Deceit; Fraud.
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EQUINOX. The name given to two periods of the year when the
days and nights are equal; that is, when the space of time
between the rising and setting of the sun is one half of a
natural day. Dig. 43, 13, 1, 8. Vide Day.
EQUITABLE. That which is in conformity to the natural law.
Wolff, Inst. §83.
EQUITABLE ESTATE. An equitable estate is a right or interest in
land, which, not having the properties of a legal estate, but
being merely a right of which courts of equity will take notice,
requires the aid of such court to make it available.
2. These estates consist of uses, trusts, and powers. See 2
Bouv. Inst. n. 1884. Vide Cestui que trust; Cestui que use.
EQUITABLE MORTGAGE, Eng. law. The deposit of title-deeds, by
the owner of an estate, with a person from whom he has borrowed
money, with an accompanying agreement to execute a regular
mortgage, or by the mere deposit, without even any verbal
agreement respecting a regular security. 2 Pow. on Mort. 49 to
61; 1 Mad. Ch. Pr. 537; 4 Madd. R. 249; 1 Bro. C. C. 269; 12
Ves. 197; 3 Younge & J. 150; 1 Rus. R. 141.
2. In Pennsylvania, there is no such thing as an equitable
mortgage. 3 P. S. R; 233; 3 Penna. R. 239; 17 S. & R. 70; 1
Penna. R. 447.
EQUITY. In the early history of the law, the sense affixed to
this word was exceedingly vague and uncertain. This was owing, in
part, to the fact, that the chancellors of those days were either
statesmen or ecclesiastics, perhaps not very scrupulous in the
exercise of power. It was then asserted that equity was bounded
by no certain limits or rules, and that it was alone controlled
by conscience and natural justice. 3 Bl. Com. 43-3, 440, 441.
2. In a moral sense, that is called equity which is founded, ex
oequo et bono, in natural justice, in honesty, and in right. In
an enlarged, legal view, "equity, in its true and genuine
meaning, is the soul and spirit of the law; positive law is
construed, and rational law is made by it. In this, equity is
made synonymous with justice; in that, to the true and sound
interpretation of the rule." 3 Bl. Com. 429. This equity is
justly said to be a supplement to the laws; but it must be
directed by science. The Roman law will furnish him with sure
guides, and safe rules. In that code will be found, fully
developed, the first principles and the most important
consequences of natural right. "From the moment when principles
of decision came to be acted upon in chancery," says Mr. Justice
Story, "the Roman law furnished abundant materials to erect a
superstructure, at once solid, convenient and lofty, adapted to
human wants, and enriched by the aid of human wisdom, experience
and learning." Com. on Eq. Jur. §23 Digest, 54.
3. But equity has a more restrained and qualified meaning. The
remedies for the redress of wrongs, and for the enforcement of
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rights, are distinguished into two classes, first, those which
are administered in courts of common law; and, secondly, those
which are administered in courts of equity. Rights which are
recognized and protected, and wrongs which are redressed by the
former courts, are called legal rights and legal injuries. Rights
which are recognized and protected, and wrongs which are
redressed by the latter courts only, are called equitable rights
and equitable injuries. The former are said to be rights and
wrongs at common law, and the remedies, therefore, are remedies
at common law; the latter are said to be rights and wrongs in
equity, and the remedies, therefore, are remedies in equity.
Equity jurisprudence may, therefore, properly be said to be that
portion of remedial justice which is exclusively administered by
a court of equity, as contradistinguished from that remedial
justice, which is exclusively administered by a court of law.
Story, Eq. §25. Vide Chancery, and the authorities there cited;
and 3 Chit. Bl. Com. 425 n. 1. Dane's Ab. h. t.; Ayl. Pand. 37;
Fonbl. Eq. b. 1, c. 1; Wooddes. Lect. 114 Bouv. Inst. Index, h.
t.
EQUITY, COURT OF. A court of equity is one which administers
justice, where there are no legal rights, or legal rights, but
courts of law do not afford a complete, remedy, and where the
complainant has also an equitable right. Vide Chancery.
EQUITY OF REDEMPTION. A right which the mortgagee of an estate
has of redeeming it, after it has been forfeited at law by the
non-payment at, the time appointed of the money secured by the
mortgage to be paid, by paying the amount of the debt, interest
and costs.
2. An equity of redemption is a mere creature of a court of
equity, founded on this principle, that as a mortgage is a pledge
for securing the repayraent of a sum of money to the mortgagee,
it is but natural justice to consider the ownership of the land
as still vested in the mortgagor, subject only to the legal title
of the mortgagee, so far as such legal title is necessary to his
security.
3. In Pennsylvania, however, redemption is a legal right. 11
Serg. & Rawle, 223.
4. The phrase equity of redemption is indiscriminately, though
perhaps not correctly applied, to the right of the mortgagor to
regain his estate, both before and after breach of condition, In
North Carolina by statute the former is called a legal right of
redemption; and the latter the equity of redemption, thereby
keeping a just distinction between these estates. 1 N. C. Rev.
St. 266; 4 McCord, 340.
5. Once a mortgage always a mortgage, is a universal rule in
equity. The right of redemption is said to be as inseparable from
a mortgage, as that of replevying from a distress, and every
attempt to limit this right must fail. 2 Chan. Cas. 22; 1 Vern.
33, 190; 2 John. Ch. R. 30; 7 John. Ch. R. 40; 7 Cranch, R.
218; 2 Cowen, 324; 1 Yeates, R. 584; 2 Chan. R. 221; 2
Sumner, R. 487.
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6. The right of redemption exists, not only in the mortgagor
himself, but in his heirs, and personal representatives, and
assignee, and in every other person who has an interest in, or a
legal or equitable lien upon the lands; and therefore a tenant
in dower, a jointress, a tenant by the curtesy, a remainder-man
and a reversioner, a judgment creditor, and every other
incumbrancer, unless he be an incumbrancer pendente lite, may
redeem. 4 Kent, Com. 156; 5 Pick. R. 149; 9 John. R. 591, 611;
9 Mass. R. 422; 2 Litt. R. 334; 1 Pick. R. 485; 14 Wend. R.
233; 5 John. Ch. R. .482; 6 N. H. Rep. 25; 7 Vin. Ab. 52.
Vide, generally, Cruise, Dig. tit. 15, c. 3; 4 Kent, Com. 148;
Pow. on Mortg. eh. 10 and 11; 2 Black. Com. 158; 13 Vin. Ab.
458; 2 Supp. to Ves. Jr. 368; 2 Jac. & Walk. 194, n.; 1 Hill.
Ab. c. 31; and article Stellionate.
EQUIVALENT. Of the same value. Sometimes a condition must be
literally accomplished in forma specifica; but some may be
fulfilled by an equivalent, per oequi polens, when such appears
to be the intention of the parties; as, I promise to pay you one
hundred dollars, and then die, my executor may fulfil my
engagement; for it is equivalent to you whether the money be
paid to you b me or by him. Roll. Ab. 451; 1 Bouv. Inst. n. 760.
EQUIVOCAL. What has a double sense.
2. In the construction of contracts, it is a general rule that
when an expression may be taken in two senses, that shall be
preferred which gives it effect. Vide Ambiguity; Construction;
Interpretation; and Dig. 22, 1, 4; Id 45, 1, 80; Id. 50, 17,
67.
EQUULEUS. The name of a kind of rack for extorting confessions.
Encyc. Lond.
ERASURE, contracts, evidence. The obliteration of a writing;
it will render it void or not under the same circumstances as an
interlineation. (q. v.) Vide 5 Pet. S. C. R. 560; 11 Co. 88; 4
Cruise, Dig. 368; 13 Vin. Ab. 41; Fitzg. 207; 5 Bing. R. 183;
3 C. & P. 65; 2 Wend. R. 555; 11 Conn. R. 531; 5 M. R. 190; 2
L. R. 291 3 L. R. 56; 4 L. R. 270.
2. Erasures and interlineations are presumed to have been made
after the execution of a deed, unless the contrary be proved. 1
Dall. 67; 1 Pet. 169; 4 Bin. 1; 10 Serg. & R. 64, 170, 419;
16 Serg. & R. 44.
EREGIMUS. We have erected. In England, whenever the. right of
creating or granting a new office is vested in the king, he must
use proper words for the purpose, as eregimus, constituimus, and
the like. Bac. Ab. Offices, &c., E.
EROTIC MANIA, med. jur. A name given to a morbid activity of
the sexual propensity. It is a disease or morbid affection of the
mind, which fills it with a crowd of voluptuous images, and
hurries its victim to acts of the grossest licentiousness, in the
absence of any lesion of the intellectual powers. Vide Mania.
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ERROR. A mistake in judgment or deviation from the truth, in
matters of fact and from the law in matters of judgment.
2. - 1 Error of fact. The law has wisely provide that a person
shall be excused, if, intending to do a lawful act, and pursuing
lawful means to accomplish his object, he commit an act which
would be criminal or unlawful, if it were done with a criminal
design or in an unlawful manner; for example, thieves break into
my house, in the night time, to commit a burglary; I rise out of
my bed, and seeing a person with a drawn sword running towards my
wife, I take him for one of the burglars, and shoot him down, and
afterwards find he was one of my friends, whom, owing to the
dimness of the light, I could not recognize, who had lodged with
me, rose on the first alarm, and was in fact running towards my
wife, to rescue her from the hands of an assassin; still I am
innocent, because I committed an error as to a fact, which I
could not know, and had, no time to inquire about.
3. Again, a contract made under a clear error is not binding;
as, if the seller and purchaser of a house situated in Now York,
happen to be in Philadelphia, and, at the time of the sale, it
was unknown to both parties that the house was burned down, there
will be no valid contract; or if I sell you my horse Napoleon,
which we both suppose to be in my stable, and at the time of the
contract he is dead, the sale is void. 7 How. Miss. R. 371 3
Shepl. 45; 20 Wend. 174; 9 Shepl. 363 2 Brown, 27; 5 Conn. 71;
6 Mass. 84; 12 Mass. 36. See Sale.
4. Courts of equity will in general correct and rectify all
errors in fact committed in making deeds and contracts founded on
good considerations. See Mistake.
5. - 2. Error in law. As the law is, or which is the same
thing, is presumed to be certain and definite, every man is bound
to understand it, and an error of law will not, in general,
excuse a man, for its violation.
6. A contract made under an error in law, is in general
binding, for were it not so, error would be urged in almost every
case. 2 East, 469; see 6 John. Ch. R. 166 8 Cowen, 195; 2 Jac.
& Walk. 249; 1 Story, Eq. Jur. 156; 1 Younge & Coll. 232; 6 B.
& C. 671 Bowy. Com. 135; 3 Sav. Dr. Rom. App. viii. But a
foreign law will for this purpose be considered as a fact. 3
Shepl. 45; 9 Pick. 112; 2 Ev. Pothier, 369, &c. See, also,
Ignorance; Marriage; Mistake.
7. By error, is also understood a mistake made in the trial of
a cause, to correct which a writ of error may be sued out of a
superior court.
ERROR, WRIT OF. A writ of error is one issued from a superior
to an inferior court, for the purpose of bringing up the record
and correcting an alleged error committed in the trial in the
court below. But it cannot deliver the body from prison. Bro.
Abr. Acc. pl. 45. The judges to whom the writ is directed have no
power to return the record nisi judicium inde redditum sit. Nor
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can it be brought except on the final judgment. See Metcalf's
Case, 11 Co. Rep. 38, which is eminently instructive on this
subject. Vide Writ of Error.
ESCAPE. An escape is tho deliverance of a person who is
lawfully imprisoned, out of prison, before such a person is
entitled to such deliverance by law. 5 Mass. 310.
2. It will be proper to consider, first, what is a lawful
imprisonment; and, secondly, the different kinds of escapes.
3. When a man is imprisoned in a proper place under the process
of a court having jurisdiction in the case, he is lawfully
imprisoned, notwithstanding the proceedings may be irregular;
but if the court has not jurisdiction the imprisonment is
unlawful, whether the process be regular or otherwise. Bac. Ab.
Escape. in civil cases, A 1; 13 John. 378; 5 John. 89; 1
Cowen, 309 8 Cowen, 192; 1 Root, R. 288.
4. Escapes are divided into voluntary and negligent; actual or
constructive; civil and criminal and escapes on mesne process
and execution.
5. - 1. A voluntary escape is the giving to a prisoner,
voluntarily, any liberty not authorized by law. 5 Mass . 310; 2
Chipm. 11. Letting a prisoner confined under final process, out
of prison for any, even the shortest time, is an escape, although
he afterwards return; 2 Bl. Rep. 1048; 1 Roll. Ab. 806; and
this may be, (as in the case of imprisonment under a ca. sa.)
although an officer may accompany him. 3 Co. 44 a Plowd. 37;
Hob. 202; 1 Bos. & Pull. 24 2 Bl. Rep. 1048.
6. The effect of a voluntary escape in a civil case, when the
prisoner is confined under final process, is to discharge the
debtor, so that he cannot be retaken by the sheriff; but he may
be again arrested if he was confined only on mesne process. 2 T.
R. 172; 2 Barn. & A. 56. And the plaintiff may retake the
prisoner in either case. In a criminal case, on the contrary, the
officer not only has a right to recapture his prisoner, but it is
his duty to do so. 6 Hill, 344; Bac. Ab. Escape in civil cases,
C.
7. - 2. A negligent escape takes place when the prisoner goes
at large, unlawfully, either because the building or prison in
which he is confined is too weak to hold him, or because the
keeper by carelessness lets him go out of prison.
8. The consequences of a negligent escape are not so favorable
to the prisoner confined under final process, as they are when
the escape is voluntary, because in this case, the prisoner is to
blame. He may therefore be retaken.
9. - 3. The escape is actual, when the prisoner in fact gets
out of prison and unlawfully regains his liberty.
10. - 4. A constructive escape takes place when the prisoner
obtains more liberty than the law allows, although he still
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remains in confinement The following cases are examples of such
escapes: When a man marries his prisoner. Plowd. 17; Bac. Ab.
Escape, B 3. If an underkeeper be taken in execution, and
delivered at the prison, and neither the sheriff nor any
authorized person be there to receive him. 5 Mass. 310. And when
the keeper of a prison made one of the prisoners confined for a
debt a turnkey, and trusted him with the keys, it was held that
this was a constructive escape. 2 Mason, 486.
11. Escapes in civil cases are, when the prisoner is charged in
execution or on mesne process for a debt or duty, and not for a
criminal offence, and he unlawfully gains his liberty. In this
case, we have seen, the prisoner may be retaken, if the escape
have not been voluntary; and that he may be retaken by the
plaintiff when the escape has taken place without his fault,
whether the defendant be confined in execution or not; and that
the sheriff may retake the prisoner, who has been liberated by
him, when he was not confined on final process.
12. Escapes in criminal cases take place when a person lawfully
in prison, charged with a crime or under sentence, regains his
liberty unlawfully. The prisoner being to blame for not
submitting to the law, and in effecting his escape, may be
retaken whether the escape was voluntary or not. And he may be
indicted, fined and imprisoned for so escaping. See Prison.
13. Escape on mesne process is where the prisoner is not
confined on final process, but on some other process issued in
the course of the proceedings, and unlawfully obtains his
liberty, such escape does not make the officer liable, provided
that on the return day of the writ, the prisoner is forthcoming.
14. Escape on final process is when the prisoner obtains his
liberty unlawfully while lawfully confined, and under an
execution or other final decree. The officer is then, in general,
liable to the plaintiff for the amount of the debt.
ESCAPE, WARRANT. A warrant issued in England against a person
who being charged in custody in the king's bench or Fleet prison,
in execution or mesne process, escapes and goes at large. Jacob's
L. D. h. t.
ESCHEAT, title to lands. According to the English law, escheat
denotes an obstruction of the course of descent, and a consequent
determination of the tenure, by some unforeseen contingency; in
which case the land naturally results back, by a kind of
reversion, to the original grantor, or lord of the fee.. 2 Bl.
Com. 244.
2. All escheats, under the English law, are declared to be
strictly feudal, and to import the extinction of tenure. Wright
on Ten. 115 to 117; 1 Wm. Bl. R. 123.
3. But as the feudal tenures do not exist in this country,
there are no private persons who succeed to the inheritance by
escheat. The state steps in, in the place of the feudal lord, by
virtue of its sovereignty, as the original and ultimate
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proprietor of all the lands within its jurisdiction. 4 Kent, Com.
420. It seems to be the universal rule of civilized society, that
when the-deceased owner has left no heirs, it should vest in the
public, and be at the disposal of the government. Code, 10, 10,
1; Domat, Droit Pub. liv. 1, t. 6, s. 3, n. 1. Vide 10 Vin. Ab.
139; 1 Bro. Civ. Law, 250; 1 Swift's Dig. 156; 2 Tuck. Blacks.
244, 245, n.; 5 Binn. R. 375; 3 Dane's Ab. 140, sect. 24;
Jones on Land Office Titles in Penna. 5, 6, 93. For the rules of
the Roman Civil Law, see Code Justinian, book 10.
ESCHEATOR. The name of an officer whose duties are generally to
ascertain what escheats have taken place, and to prosecute the
claim of the commonwealth for the purpose of recovering the
escheated property. Vide 10 Vin. Ab. 158.
ESCROW, conveyancing, contracts. A conditional delivery of a
deed to a stranger, and not to the grantee himself, until certain
conditions shall be performed, and then it is to be delivered to
the grantee. Until the condition be performed and the deed
delivered over, the estate does not pass, but remains in the
grantor. 2 Johns. R. 248; Perk. 137, 138.
2. Generally, an escrow takes effect from the second delivery,
and is to be considered as the deed of the party from that time;
but this general rule does not apply when justice requires a
resort to fiction. The relation back to the first delivery, so as
to give the deed effect from that time, is allowed in cases of
necessity, to avoid injury to the operation of the deed, from
events happening between the first and second delivery. For
example, when a feme sole makes a deed and delivers it as an
escrow, and then marries before the second delivery, the relation
back to the time when she was sole, is necessary to render the
deed valid. Vide 2 Bl. Com. 307; 2 Bouv. Inst. n. 2024; 4 Kent,
Com. 446; Cruise, Dig. t. 32, c. 2, s. 87 to 91; Com. Dig.
Fait, A 3; 13 Vin. Ab. 29; 5 Mass. R. 60; 2 Root, R. 81; 5
Conn. R. 113; 1 Conn. R. 375; 6 Paige's R. 314; 2 Mass. R.
452; 10 Wend. R. 310; 4 Green]. R. 20; 2 N. H. Rep. 71; 2
Watts', R. 359; 13 John. R. 285; 4 Day's R. 66; 9 Mass. R. 310
1 John. Cas. 81; 6 Wend. R. 666; 2 Wash. R. 58; 8 Mass. R.
238; 4 Watts, R. 180; 9 Mass. Rep. 310; 2 Johns. Rep. 258-9;
13 Johns. Rep. 285; Cox, Dig. tit, Escrow; Prest. Shep. Touch.
56, 57, 58; Shep. Prec. 54, 56; 1 Prest. Abst. 275; 3 Prest.
Ab. 65; 3 Rep. 35; 5 Rep. 84.
ESCUAGE, old Eng. law. Service of the shield. Tenants who hold
their land by escuage, hold by knight's service. 1 Tho. Co. Litt.
272; Littl. s. 95, 86 b.
ESNECY. Eldership. In the English law, this word signifies the
right which the eldest coparcener of lands has to choose one of
the parts of the estate after it has been divided.
ESPLEES. The products which the land or ground yields; as the
hay of the meadows, the herbage of the pasture, corn or other
produce of the arable, rents and services. Termes de la Ley; see
11 Serg. & R. 2-5; Dane's Ab. Index, h. t.
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ESPOUSALS, contracts. A mutual promise between a man and a
woman to marry each other, at some other time: it differs from a
marriage, because then the contract is completed. Wood's Inst.
57; vide Dig. 23, 1, 1; Code, 5, 1, 4; Novel, 115, c. 3, s.
11; Ayliffe's Parerg. 245 Aso & Man. Inst. B. 1, t. 6, c. 1, §1.
ESQUIRE. A title applied by courtesy to officers of almost
every description, to members of the bar, and others. No one is
entitled to it by law, and, therefore, it confers, no distinction
in law.
2. In England, it is a title next above that of a gentleman,
and below a knight. Camden reckons up four kinds of esquires,
particularly regarded by the heralds: 1. The eldest sons of
knights and their eldest sons, in perpetual succession. 2. The
eldest sons of the younger sons of peers, and their eldest sons
in like perpetual succession. 3. Esquires created by the king's
letters patent, or other investiture, and their eldest sons. 4.
Esquires by virtue of their office, as justices of the peace, and
others who bear any office of trust under the crown.
ESSOIN, practice. An excuse which a party bound to be in court
on a particular day, offers for not being there. 1 Sell. Pr. 4;
Lee's Dict. h. t.
2. Essoin day is the day on which the writ is returnable. It is
considered for many purposes as the first day of the term. 1 T.
R. 183. See 2 T. R. 16 n.; 4 Moore's R. 425. Vide Exoine.
ESTABLISH. This word occurs frequently in the Constitution of
the United $tates, and it is there used in different meanings. 1.
To settle firmly, to fix unalterably; as, to establish justice,
which is the avowed object of the constitution. 2. To make or
form as, to establish an uniform rule of naturalization, and
uniform laws on the subject of bankruptcies, which evidently does
not mean that these laws shall be unalterably established as
justice. 3. To found, to create, to regulate; as, congress shall
have power to establish post roads and post offices. 4. To found,
recognize, confirm or admit; as, congress shall make no law
respecting an establishment of religion. 5. To create, to ratify,
or confirm; as, we, the people, &c., do ordain and establish
this constitution, 1 Story, Const. §454.
ESTADAL, Spanish law. In Spanish America, this was a measure of
land of sixteen square varas or yards. 2 White's Coll. 139.
ESTATE. This word his several meanings: 1. In its most
extensive sense, it is applied to signify every thing of which
riches or, fortune may consist and includes personal and real
property; hence we say personal estate, real estate. 8 Ves. 504.
2. In its more limited sense, the word estate is applied to
lands, It is so applied in two senses. The first describes or
points out the land itself, without ascertaining the extent or
nature of the interest therein; as "my estate at A." The second,
which is the proper and technical meaning of estate, is the
degree, quantity, nature and extent of interest which one has in
real property; as, an estate in fee, whether the same be a fee
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simple or fee tail; or an estate for life or for years, &c. Lord
Coke says: Estate signifies such inheritance, freehold, term of
years, tenancy by statute merchant, staple, eligit, or the like,
as any man hath in lands or tenements, &c. Co. Lit. §650, 345 a.
See Jones on Land Office Titles in Penna. 165-170.
2. In Latin, it is called status, because it signifies the
condition or-circumstances in which the owner stands with regard
to his property..
3. Estates in land may be considered in a fourfold view with
regard, 1. To the quantity of interest which the tenant has in
the tenement. 2. To the time during which that quantity of
interest is to be enjoyed. 3. To the number and connexion of the
tenants. 4. To what conditions may be annexed to the estate.
4. - 1. The quantity of interest which the tenant has in his
tenement is measured by its duration and extent. An estate,
considered in this point of view, is said to be an estate of
freehold, and an estate less than freehold.
5.- §1. Freehold estates are of inheritance and not of
inheritance. An estate in fee, (q. v.) which is the estate most
common in this country, is a freehold estate of inheritance.
Estates of freehold not of inheritance, are the following:
6. - 1st. Estates for life. An estate for life is a freehold
interest in lands, the duration of which is confined to the life
or lives of some particular person or persons, or to the
happening or not happening of some uncertain event.
7. Estates for life are divided into conventional or legal
estates. The first created by the act of the parties, and the
second by operation of law.
8. - 1. Life estates may be created by express words; as, if A
conveys land to B, for the term of his natural life; or they may
arise by construction of law, as, if A conveys land to B, without
specifying the term or duration, and without words of limitation.
In the last case, B cannot have an estate in fee, according to.
the English law, and according to the law of those parts of the
United States which have adopted and not altered the common law
in this particular, but he will take the largest estate which can
possibly arise from the grant, and that is an estate for life.
Co. Litt. 42, a. So a conveyance " to I M, and his generation, to
endure as long as the waters of the Delaware should run," passes
no more than a life estate. 3 Wash. C. C. Rep. 498. The life
estate may be either for a man's own life, or for the life of
another person, and in this last case it is termed an estate per
autre vie. There are some estates for life, which may depend upon
future contingencies, before the death of the person to whom they
are granted; for example, an estate given to a woman dum sola
fuerit, or durante viduitate, or to a man and woman during
coverture, or as long as the grantee shall dwell in a particular
house, is determinable upon the happening of the event. In the
same manner, a house usually worth one hundred dollars a year,
may be granted to a person still he shall have received one
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thousand dollars; this will be an estate for life, for as the
profits are uncertain, and may rise or fall, no precise time can
be fixed for the determination of the estate. On the contrary,
where the time is fixed, although it may extend far beyond any
life, as a terw for five hundred years, this does not create a
life estate.
9. - 2. The estates for life created by operation of law, are,
1st. Estates tail after possibility of issue extinct. 2d. Estates
by the curtesy. 3d. Dower. 4th. Jointure. Vide Cruise. Dig. tit.
3; 4 Kent, Com. 23; 1 Brown's Civ. Law, 191; 2 Bl. Com. 103.
The estate for life is somewhat similar to the usufruct (q. v.)
of the civil law.
10. The incidents to an estate for life, are principally the
following: 1. Every tenant for life, unless restrained by
covenant or agreement, may of common right take upon the land
demised to him reasonable estovers or bote's. Co. Litt. 41.
11. - 2. The tenant for life, or his representatives, shall not
be pre-judiced by any sudden determination of his estate, because
such determination is contingent or uncertain. Co. Litt. 55.
12. - 3. Under tenants or lessees of an estate for life, have
the same, and even greater indulgences than the lessors, the
original tenants for life; for when the tenant for life shall
not have the emblements, because the estate determines by his own
act, the exception shall not reach his lessee, who is a third
person. l Roll. Ab. 727 2 Bl. Com. 122.
13. - 2d. Estates by the curtesy. An estate by the curtesy is
an estate for life, created by act of law, which is defined as
follows: When a man marries a woman, seised at any time during
the coverture of an estate of inheritance, in severalty, in
coparcenary, or in common, and has issue by her born alive, and
which migbt by possibility inherit the same estate as heir to the
wife, and the wife dies in the lifetime of the hushand, he holds
the lands during, his life by the curtesy of England, and it is
immaterial whether the issue be living at the time of the seisin,
or at the death of the wife, or whether it was born before or
after the seisin. Litt. s. 35; Co. Litt. 29, b; 8 Co. 34. By
Act of Asserably of Pennsylvania, the birth of issue is not
necessary, in all cases where the issue, if any, would have
inherited.
14. There are four requisites indispensably necessary to the
existence of this estate: 1. Marriage. 2. Seisin of the wife,
which must have been seisin in deed, and not merely seisin in
law; it seems, however, that the rigid rules of the common law,
have been relayed, in this respect, as to what is sometimes
called waste or wild lands. 1 Pet. 505. 3. Issue. 4. Death of the
wife.
15. - 1. The marriage must be a lawful marriage; for a void
marriage does not entitle the hushand to the curtesy; as if a
married man were to marry a second wife, the first being alive,
he would not be entitled to the curtesy in such second wife's
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estate. But if the marriage had been merely voidable, he would be
entitled, because no marriage, merely voidable, can be annulled
after the death of the parties. Cruise, Dig. tit. 5, c. 1, s. 6.
16. - 2. The seisin of the wife must, according to the English
law, be a seisin in deed; but this strict rule has been somewhat
qualified by circumstances in this country. Where the wife is
owner of wild uncultivated land, not held adversely, she is
considered as seised in fact, and the hushand is entitled to his
curtesy. 8 John. 262 8 Cranch, 249; 1 Pet. 503 1 Munf. 162 1
Stow. 590. When the wife's state is in reversion or remainder,
the hushand is not, in general, entitled to the curtesy, unless
the particular estate is elided during coverture. Perk. s. 457,
464; Co. Litt. 20, a; 3 Dev. R. 270; 1 Sumn. 263; but see 3
Atk. 469; 7 Viner, Ab. 149, pl. 11. The wife's seisin must have
been such as to enable her to inherit. 5 Cowen, 74.
17. - 3. The issue of the marriage, to entitle the hushand to
the curtesy, must possess the following qualifications: 1. Be
born alive. 2. In the lifetime of the mother. 3. Be capable of
inheriting the estate.
18. - 1st. The issue must be born alive. As to what will be
considered life, see Birth; Death; Life.
19. - 2d. The issue must be born in the lifetime of the mother;
and if the child be born after the death of the mother, by the
performance of the Caesarian operation, the hushand will not be
entitled to the curtesy; as there was no issue born at the
instant of the wife's death, the estate vests immediately on the
wife's death to the child, in ventre sa mere, and the estate
being once vested, it cannot be taken from him. Co. Litt. 29, b.;
8 Co. Rep., 35, a. It is immaterial whether the issue be born
before or after the seisin of the wife. 8 Co. Rep. 35, b.
20. - 3d. The issue must be capable of inheriting the estate;
When, for example, lands are given to a woman and the heirs male
of her body, and she has a daughter, this issue will not enable
lier hushand to take his curtesy. Co. Litt. 29, a.
21. - 4th. The death of the wife is requisite to make the
estate by the curtesy complete.
22. This estate is generally prevalent in the United States;
in some of them it has received a modification. In Pennsylvania
the right of the hushand takes place although there be no issue
of the marriage, in all cases where the issue, if any, would have
inherited. In Vermont, the title by curtesy has been laid under
the equitable restriction of existing only in the event that the
children of the wife entitled to inherit, died within age and
without children in South Carolina, tenancy by the curtesy, eo
nomine, has ceased by the provisions of an act passed in 1791,
relative to the distribution of intestates estates, which gives
to the hushand surviving his wife, the same share of her real
estate, as she would have taken out of his, if left a widow, and
that is one moiety, or one-third of it in fee, according to
circumstances. In Georgia, tenancy by the curtesy does not exist,
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because, since 1785, all marriages vest the real, equally with
the personal estate, in the hushand. 4 Kent, Com. 29. In
Louisiana, where the common Iaw has not been adopted in this
respect, this estate is unknown.
23. This estate is not peculiar to the English law, as
Littleton erroneously supposes; Litt. s. 35; for it is. to be
found, with some modifications, in the ancient laws of Scotland,
Ireland, Normandy and Germany. In France there were several
customs, which gave a somewhat similar estate to the surviving
hushand, out of the wife's inheritances. Merlin, Repert. mots
Linotte, et Quarte de Conjoint pauvre.
24. - 3d. Estate in dower. Dower is an estate for life which
the law gives the widow in the third part of the lands and
tenements, or hereditaments of which the hushand was solely
seised, at any time during the coverture, of an estate in fee or
in tail, in possession, and to which estate in the lands and
tenements the issue, if any of such widow, might, by possibility,
have inherited. In Pennsylvania, the sole seisin of the. hushand
is not necessary. Watk. Prin. Con. 38; Lit. §36; Act of Penna.
March 31, 1812.
25. To create a title to the dower, three things are
indispensably requisite: 1. Marriage. This must be a marriage not
absolutely void, and existing at the death of the hushand; a
wife de facto, whose marriage is voidable by decree, as well as a
wife de jure, is entitled to it; and the wife shall be endowed,
though the marriage be within the age of consent, and the hushand
dies within that age. Co. Litt. 33, a; 7 Co. 42; Doct. & Stud.
22; Cruise, Dig. t. 6, c. 2, s, 2, et seq.
26. - 2. Seisin. The hushand must have been seised, some time
during the coverture, of the estate of which the wife is dowable.
Co. Litt. 31, a. An actual seisin is not indispensable, a seisin
in law is sufficient. As to the effect of a transitory seisin,
see 4 Kent, Com. 38; 2 Bl. Com. 132; Co. Litt. 31, a.
27. - 3. Death of the hushand. This must be a natural death;
though there are authorities which declare that a civil death
shall have the same effect. Cruise, Dig. tit. 6, ch. 2, §22.
Vide, generally, 8 Vin. Ab. 210; Bac. Ab. Dower; Com. Dig.
Dower; Id. App. tit. Dower; 1 Supp. to. Ves. jr. 173, 189; 2
Id. 49; 1 Vern. R. by Raithby, 218, n. 358, n.; 1 Salk. R. 291;
2 Ves. jr. 572; 5 Ves. 130; Arch. Civ. Pl. 469; 2 Sell. Pr.
200; 4 Kent, Com. 35; Amer. Dig. h. t.; Pothier, Traite du
Douaire; 1 Swift's Dig. 85; Perk. 300, et seq.
28. - 4th. Estate tail after possibility of issue extinct. By
this awkward, but perhaps necessary periphrasis, justified by Sir
William Blackstone, 2 Com. 124, is meant the estate which is thus
described by Littleton, §32 when tenements are given to a man and
his wife in special tail, if one of them die without issue, the
survivor is tenant in tail after possibility of issue extinct."
29. This estate though, strictly speaking, not more than an
estate for life, partakes in some circumstances of the nature of
Bouvier's Law Dictionary : E1 : Page 37 of 79
an estate tail. For a tenant in tail after possibility of issue
extinct, has eight qualities or privileges in common with a
tenant in tail. 1. He is dispunishable for waste. 2. He is not
compellable to attorn. 3. He shall not have aid of the person in
reversion. 4. Upon his alienation no writ of entry in consimili
casu lies. 5. After his death, no writ of intrusion lies. 6. He
may join the mise in a writ of right in a special manner. 7. In a
praecipe brought by him he shall not name himself tenant for
life. 8. In a praecipe brought against him, he shall not be named
barely tenant for life.
30. There are, however, four qualities annexed to this estate,
which prove it to be, in fact, only an estate for life. 1. If
this tenant makes a feoffment in fee, it is a forfeiture. 2. If
an estate tail or in fee descends upon him, the estate tail after
possibility of issue extinct is merged. 3. If he is impleaded and
makes default, the person in reversion shall be received, as upon
default of any other tenant for life. 4. An exchange between this
tenant and a bare tenant for life, is good; for, with respect to
duration, their. estates are equal. Cruise, Dig. tit. 4; Tho.
Co. Litt. B. 2, c. 17; Co. Lit. 28, a.
31. Nothing but absolute impossibility of having issue, can
give rise to this estate. Thus if a person gives lands to a man
and his, wife, and to the heirs of their two bodies, and they
live to a hundred years, without having issue, yet they are
tenants in tail; for the law' sees no impossibility of their
having issue, until the death of one of them. Co. Litt. 28, a.
See Tenant in tail after possibility of issue extinct.
32. - §2. An estate less than freehold is an estate which is
not in fee, nor for life; for although a man has a lease for a
thousand years, which is much longer than any life, yet it is not
a freehold, but a mere estate for years, which is a chattel
interest. Estates less than freehold are estates for years,
estates at will, and estates at sufferance.
33. - 1. An estate for years, is one which is created by a
leas; for years, which is a contract for the posspssion and
profits of land for a determinate period, with the recompense of
rent; and it is deemed an estate for years, though the number of
years should exceed the ordinary limits of human life; and it is
deemed an estate for years though it be limited to less than a
single year. It is denominated a term, because its duration is
absolutely defined.
34. An estate for life is bigher than an estate for years,
though the latter should be for a thousand years. Co. Litt. 46,
a; 2 Kent, Com. 278; 1 Brown's Civ. Law, 191; 4 Kent, Com. 85;
Cruise's Dig. tit. 8; 4 Rawle's R. 126; 8 Serg. & Rawle, 459;
13 Id. 60; 10 Vin. Ab. 295, 318 to 325.
35. - 3. An estate at will is not bounded by any definite
limits with respect to time; but as it originated in mutual
agreement, so it depends upon the concurrence of both parties. As
it depends upon the will of both, the dissent of either may
determine it. Such an estate or interest cannot, consequently, be
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the subject of conveyance to a stranger, or of transmission to
representatives. Watk. Prin. Con. 1; Litt. §68.
36. Estates at will have become infrequent under the operation
of judicial decisions. Where no certain term is agreed on, they
are now construed to be tenancies from year to year, and each
party is bound to give reasonable notice of an intention to
terminate the estate. When the tenant holds over by consent
given, either expressly or by implication, after the
determination of a lease for years, it is held evidence of a new
contract, without any definite period, and is construed. to. be a
tenancy from year to year. 4 Kent, Com. 210; Cruise, Dig. tit.
9, c . 1.
37.-3. An estate at sufferance. The session of land by lawful
title, but holds over by wrong after the determination of his
interest. Co. Litt. 57, b. He has a bare naked possession, but no
estate which he can transfer or transmit, or which is capable of
enlargement by. release, for he stands in no privity to his
landlord.
38. There is a material distinction between the case of a
person coming to an estate by act of the party, and afterwards
holding over, and by act of the law and then holding over. In the
first case, he is regarded as a tenant at sufferauce; and in the
other, as an intruder, abator, and trespasser. Co. Litt. 57, b;
2 Inst. 134 Cruise, Dig. t. 9, c. 2 4 Kent, Com. 115 13 Serg. &
Rawle, 60 8 Serg. & Rawle, 459; 4 Rawle, 459; 4 Rawle's R. 126.
39. - II. As to the time of their enjoyment, estates are
considered either in possession, (q. v.) or expectancy. (q. v.)
The latter are either remainders, (q. v.) which are created, by
the act of the parties, and these are vested or contingent, or
reversions, (q, v.) created by act of law.
40. - III. An estate way be holden in a variety of ways the
most common of which are, 1. In severalty. 2. In joint tenancy.
3. In common. 4. In coparcenary. These will be separately
considered.
41. - 1. dn estate in severally, is where only one tenant holds
the estate in his own right, without any other person being
joined or connected with him, in point-of interest, during the
continuance of his estate.
42. - 2. dn estate in joint tenancy, is where lands or
tenements are granted to two or more persons, to hold in fee
simple, fee tail, for life, for years, or at will. 2 Bl. Com.
179. Joint tenants always take by purchase, and necessarily have
equal shares; while tenants in common, also coparceners,
claiming under ancestors in different degrees, may have unequal
shares and the proper and best mode of creating an estate in
joint tenancy, is to limit to A B and C D, and their assigns, if
it be an estate for life; or to A B and C D, and their heirs, if
in) fee. Watk. Prin. Con. 86.
43. The creation of the estate depends upon the expression in
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the deed or devise, by which the tenants hold, for it must be
created by the acts of the parties, and does not result from the
operation of law. Thus, an estate given to a number of persons,
without any restriction or explanation, will be construed a joint
tenancy; for every part of the grant can take effect only, by
considering the estate equal in all, and the union of their names
gives them a name in every respect.
44. The properties of this estate arise from its unities;
these are, 1. Unity of title; the estate must have been created
and derived from one and the same conveyance. 2. There must be a
unity of time; the estate must be created and vested at the same
period. 3. There must be a unity of interest; the estate must be
for the same duration, and for the same quantity of interest. 4.
There must be a unity of possession; all the tenants must
possess and enjoy at the same time, for each must have an entire
possession of every parcel, as of the whole. One has not
possession of one-half, and another of the other half, but each
has an undivided moiety of the whole, and not the whole of an
undivided moiety.
45. The distinguishing incident of this estate, is the right of
survivorship, or jus accrescendi; at common law, the entire
tenancy or estate, upon the death of any of the joint tenants,
went to the survivors, and so on to the last survivor, who took
an estate of inheritance. The right of survivorship, except,
perhaps, in estates held in trust, is abolished in Pennsylvania,
New York, Virginia, Kentucky, Indiana, Missouri, Tennessee, North
and-South Carolina, Georgia, and Alabama. Griffith's Register, h.
t. In Connecticut it never was recognized. 1 Root, Rep. 48; 1
Swift's Digest, 102. Joint tenancy may be destroyed by destroying
any of its constituent unities, except that of time. 4 Kent, Com.
359. Vide Cruise, Dig. tit. 18; 1 Swift's Dig. 102; 14 Vin. Ab.
470; Bac. Ab. Joint Tenants, &c.; 3 Saund. 319, n. 4; 1 Vern.
353,; Com. Dig. Estates by Grant, K 1; 4 Kent, Com. 353; 2 Bl.
Com. 181; 1 Litt. see. 304 2 Woodd. Lect. 127; 2 Preston on
Abst. 67; 5 Binn. Rep . 18; Joint tenant; Survivor; Entirety.
46. - 3. An estate in common, is one which is held by two or
more persons by
unity of possession.
47. They may acquire their estate by purchase, and hold by
several and distinct titles, or by title derived at the same
time, by the same deed or will; or by descent. In this respect
the American law differs from the English common law.
48. This tenancy, according to the common law, is created by
deed or will, or by change of title from joint tenancy or
coparcenary; or it arises, in many cases, by construction of
law. Litt. sec. 292, 294, 298, 302; 2 Bl. Com. 192; 2 Prest. on
Abstr. 75.
49. In this country it maybe created by descent, as well as by
deed or will. 4 Kent, Com. 363. Vide Cruise, Dig. tit. 20 Com.
Dig. Estates by Grant, K 8.
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50. Estates in common can be dissolved in two ways only;
first, by uniting all the titles and interests in one tenant
secondly, by making partition.
51. - 4. An estate in coparcenary, is an estate of inheritance
in lands which descend from the ancestor to two or more persons
who are called coparceners or parceners.
52. This is usually applied, in England, to cases where lands
descend to females, when there are no male heirs.
53. As in the several states, estates generally descend to all
the children equally, there is no substantial difference between
coparceners and tenants in common. The title inherited by more
persons than one, is, in some of the states, expressly declared
to be a tenancy in common, as in New York and New Jersey, and
where it is not so declared the effect is the same; the
technical distinction between coparcenary and estates in common
may be considered as essentially extinguished in the United
States. 4 Kent, Com. 363. Vide Estates.
54. - IV. An estate upon condition is one which has a
qualification annexed to it by which it may, upon the happening
or not happening of a particular event, be created, or enlarged,
or destroyed. Conditions may be annexed to estates in fee, for
life, or for years. These estates are divided into estates upon
condition express, or in deed; and upon conditions implied, or
in law.
55. Estates upon express conditions are particularly mentioned
'in the contract between the parties., Litt. s. 225; 4 Kent,
Com. 117; Cruise, Dig. tit. 13.
56. Estates upon condition in law are such as have a condition
impliedly annexed to them, without any condition being specified
in the deed or will. Litt. s. 378, 380; Co. Litt. 215, b; 233,
b; 234, b.
57. Considered as to the title which may be had in them,
estates are legal and equitable. 1. A legal estate is one, the
right to which can be enforced in a court of law. 2. An
equitable, is a right or interest in land, which not having the
properties of a legal estate, but being merely a right of which
courts of equity will take notice, require the aid of such a
court to, make it available. See, generally, Bouv. Inst. Index,
h. t.
ESTER EN JUGEMENT, French law. Stare in judicio. To appear
before a tribunal either as plaintiff or defendant.
ESTIMATION OF VALUES. As the value of most things is variable,
according to circumstances, the law in many cases determines the
time at which the value of a thing should be taken; thus, the
value of an advancement, is to be taken at the time of the gift.
1 Serg. & R. 425. Of a gift in frank-marriage, at the time of
partition between the parceners, and the bringing of the gift in
frank-marriage into hotchpot. But this is a case sui generis. Co.
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Lit. §273; 1 Serg. & R. 426. Of the yearly value of properties;
at the time of partition. Tho. Co. Lit. 820. Of a bequest of so
pieces of coin; at the time of the will made. Godolph, 0. L.
273, part 3, chap. 1. §3. Of assets to make lineal warranty a
bar; at the time of the descent. Co. Lit. 374, b. Of lands
warranted; at the time of the warranty. Beames' Glanv. 75 n.; 2
Serg. & Rawle, 444, see Eviction 2. Of a ship lost at sea; her
value is to be taken at the port from which she sailed, deducting
one-fifth; 2 Serg. & Rawle, 258; 1 Caines, 572; 2 Condy.
Marshall, 545; but different rules prevail on this subject in
different nations. 2 Serg. & R. 259. Of goods lost at sea; their
value is to be taken at the port of delivery. 2 Serg. & R. 257.
The comparative value of a life estate, and the remainder in fee,
is one-third for the life and two-thirds for the remainder in
fee; and moneys due upon a mortgage of lands devised to one for
life, and the remainder in fee to another, are to be apportioned
by the same rule. 1 Vern. 70; 1 Chit. Cas. 223, 224, 271;
Francis' Max. 3, §12, and note. See Exchange, 3-2.
ESTOPPEL, pleading. An estoppel is a preclusion, in law, which
prevents a man from alleging or denying a fact, in consequence o
his own previous act, allegation or denial of a contrary tenor.
Stepb. Pl. 239. Lord Coke says, " an estoppel is, when a man is
concluded by his own act or acceptance, to say the truth." Co.
Litt. 352, a. And Blackstone defines "an estoppel to be a special
plea in bar, which happens where a man has done some act, or
executed some deed, which estops or precludes him from averring
any thing to the contrary. 3 Cora. 308. Estoppels are odious in
law; 1 Serg. & R. 444; they are not admitted in equity against
the truth. Id. 442. Nor can jurors be estopped from saying the
truth, because they are sworn to do so, although they are
estopped from finding against the admission of the parties in
their pleadings. 2 Rep. 4; Salk. 276; B. N. P. 298; 2 Barn. &
Ald. 662; Angel on Water Courses, 228-9. See Co. Litt. 352, a,
b, 351, a. notes.
2. An estoppel may, arise either from matter of record; from
the deed of the party; or from matter in Pays; that is, matter
of fact.
3. Thus, any confession or admission made in pleading, in a
court of record, whether it be express, or implied from pleading
over without a traverse, will forever preclude the party from
afterwards contesting the same fact in any subsequent suit with
his adversary. Com. Dig. Estoppel, A 1. This is an estoppel by
matter of record.
4. As an instance of an estoppel by deed, may be mentioned the
case of a bond reciting a certain fact. The party executing that
bond, will be precluded from afterwards denying in any action
brought upon that instrument, the fact , so recited. 5 Barn. &
Ald. 682.
5. An example of an estoppel by matter in pays occurs when one
man Las accepted rent of another. He will be estopped from
afterwards. denying, in any action, with that person, that he
was, at the time of such acceptance, his tenant. Com. Dig.
Estoppel, A 3 Co. Litt. 352, a.
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6. This doctrine of law gives rise to a kind of pleading that
is neither by way of traverse, nor confession. and avoidance:
viz. a pleading, that, waiving any question of fact, relies
merely on the estoppel, and, after stating the previous act,
allegation, or denial, of the opposite party, prays judgment, if
he shall be received or admitted to aver contrary to what he
before did or said. This pleading is called pleading by way of
estoppel. Steph. 240a
7. Every estoppel ought to be reciprocal, that is, to bind both
parties: and this is the reason that regularly a stranger shall
neither take advantage or be bound by an estoppel. It should be
directly affirmative, and not by inference nor against an
estoppel. Co. Lit. 352, a, b; 1 R. 442-3; 9 Serg. & R. 371,
430; 4 Yeates' 38 1 Serg. & R. 444; Corn. Dig. Estoppel, C 3
Johns. Cas. 101; 2 Johns. R. 382; 8 W. & S. 135; 2 Murph. 67;
4 Mont. 370. Privies in blood, privies in estate, and privies in
law, are bound by, and may take advantage of estoppels. Co. Litt.
352; 2 Serg. & Rawle, 509; 6 Day, R. 88. See the following
cases relating to estoppels by; Matter of record: 4 Mass. R.
625; 10 Mass. R. 155; Munf. R. 466; 3 East, R. 354; 2 Barn. &
Ald. 362, 971; 17 Mass. R. 365; Gilm. R. 235; 5 Esp. R. 58; 1
Show. 47; 3 East, R. 346. Matter of writing: 12 Johns. R. 347;
5 Mass. R. 395; Id. 286; 6 Mass. R. 421; 3 John. Cas. 174; 5
John. R. 489; 2 Caines' R. 320; 3 Johns. R. 331; 14 Johns. R.
193; Id. 224; 17 Johns. R. 161; Willes, R. 9, 25; 6 Binn. R.
59; 1 Call, R. 429; 6 Munf. R. 120; 1 Esp. R. 89; Id. 159;
Id. 217; 1 Mass. R. 219. Matter in pays: 4 Mass. R. 181; Id.
273 15 Mass. R. 18; 2 Bl. R. 1259; 1 T. R. 760, n.; 3 T. R.
14; 6 T. R. 62; 4 Munf. 124; 6 Esp. R. 20; 2 Ves. 236; 2
Camp. R. 844; 1 Stark. R. 192. And see, in general, 10 Vin. Abr.
420, tit. Estoppel; Bac. Abr. Pleas, 111; Com. Dig. Estoppel;
Id. Pleader, S 5; Arch. Civ. Pl. 218; Doct. Pl. 255; Stark.
Ev. pt. 2, p. 206, 302; pt. 4, p. 30; 2 Smith's Lead. Cas.
417-460. Vide Term.
ESTOVERS, estates. The right of taking necessary wood for the
use or furniture of a house or farm, from off another's estate.
The word bote is used synonymously with the word estovers. 2 Bl.
Com. 35; Dane's Ab. Index, h. t.; Woodf. L. & T. 232; 10 Wend.
639; 2 Bouv. Inst. n. 1652 57.
ESTRAYS. Cattle whose owner is unknown.
2. In the United States, generally, it is presumed by local
regulations, they are subject to, being sold for the benefit of
the poor, of some other public use, of the place where found.
ESTREAT. This term is used to signify a true copy or note of
some original writing or record, and specially of flues and
amercements imposed by a court, and extracted from the record,
and certified to a proper officer or officers authorized and
required to collect them. Vide F. N. B. 57, 76.
ESTREPE. This word is derived from the French, estropier, to
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cripple. It signifies an injury to lands, to the damage of
another, as a reversioner. This is prevented by a writ of
estrepemeut.
ESTREPEMENT. The name of a writ which lay at common law to
prevent a party in possession from committing waste on an estate,
the title to which is disputed, after judgment obtained in any
real action, and before possession was delivered by the sheriff.
2. But as waste might be committed in some cases, pending the
suit, the statute of Gloucester gave another writ of estrepement
pendente placito, commanding the sheriff firmly to inhibit the
tenant "ne faciat vastum vel strepementum pendente placito dicto
indiscusso." By virtue of either of these writs, the sheriff may
resist those who commit waste or offer to do so; and he may use
sufficient force for the purpose. 3 Bl. Com. 225, 226.
3. This writ is sometimes directed to the sheriff and the party
in possession of the lands, in order to make him amenable to the
court as for a contempt in case of his disobedience to the
injunction of the writ. At common law the process proper to bring
the tenant into court is a venire facias, and thereon an
attachment. Upon the defendant's coming in, the plaintiff
declares against him. The defendant usually pleads "that he has
done no waste contrary to the prohibition of the writ." The issue
on this plea is tried by a jury, and in case they find against
the defendant, they assess damages which the plaintiff recovers.
But as this verdict convicts the defendant of a contempt, the
court proceed against him for that cause as in other cases. 2 Co.
Inst. 329; Rast. Ent. 317; Brev. Judic. 88; More's Rep. 100;
1 Bos. & Pull. 121; 2 Lilly's Reg. tit. Estrepement; 5 Rep.
119; Reg. Brev. 76, 77.
4. In Pennsylvania, by legislative enactment, the remedy by
estrepement is extended for the benefit of any owner of lands
leased for years or at will, at any time during the continuance
or after the expiration of such demise, and due notice given to
the tenant to leave the same, agreeably to law, or for any
purchaser at sheriff or coroner's sale of lands. &c., after he
has been declared the highest bidder by the sheriff or coroner;
or for any mortgagee or judgment creditor, after the lands bound
by such judgment or mortgage, shall have been condemned by
inquisition, or which may be subject to be sold by a writ of
venditioni exponas or levari facias. Vide 10 Vin. Ab. 497;
Woodf. Landl. & Ten, 447; Archb. Civ. Pl. 17; 7 Com. Dig. 659.
ET CETERA. A Latin phrase, which has been adopted into English;
it signifies. "and the others, and so of the rest," it is
commonly abbreviated, &c.
2. Formerly the pleader was required to be very particular in
making his defence. (q. v.) B making full defence, he impliedly
admitted the jurisdiction of the court, and the competency of the
plaintiff to sue; and half defence was used when the defendant
intended to plead to the jurisdictions or disability. To prevent
the inconveniences which might arise by pleading full or half
defence, it became the practice to plead in the following form: "
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And the said C D, by E F, his attorney, comes and defends the
wrong and injury, when, &c., and says," which was either full or
half defence. 2 Saund. 209, c.; Steph. Pl. 432; 2 Chit. Pl.
455.
3. In practice, the &c. is used to supply the place of words
which have been omitted. In taking recognizance, for example, it
is usual to make an entry on the docket of the clerk of the
court, as follows: A B, tent, &c., in the sum of $1000, to
answer, &c. 6 S. & R. 427.
ET NON. And not. These words are sometimes employed in pleading
to convey a pointed denial. They have the same effect as without
this, absque hoe. 3 Bouv. Inst. n. 2981, note.
EUNDO MORANDO, ET REDEUNDO. This Latin phrase signifies going,
remaining, and returning. It is employed in cases where a person
either as a party, a witness, or one acting in some other
capacity, as an elector, is privileged from arrest, in order to
give him that freedom necessary to the performance of his
respective obligations, to signify that he is protected from
arrest eundo, morando et redeundo. See 3 Bouv. Inst. n. 3380.
EUNOMY. Equal laws, and a well adjusted constitution of
government.
EUNUCH. A male whose organs of generation have been so far
removed or disorganized, that he is rendered incapable of
reproducing his species. Domat, Lois Civ. liv. prel. tit. 2, s.
1, n. 10.
EVASION. A subtle device to set aside the truth, or escape the
punishment of the law; as if a man should tempt another to
strike him first, in order that he might have an opportunity of
returning the blow with impunity. He is nevertheless punishable,
because he becomes himself the aggressor in such a case. Wishard,
1 H. P . C. 81 Hawk. P. C. c. 31, §24, 25; Bac. Ab. Fraud, A.
2. An escape from custody.
EVICTION. The loss or deprivation which the possessor of a
thing suffers, either in whole or in part, of his right of
property in such a thing, in consequence of the right of a third
person established before a compenent tribunal. 10 Rep. 128; 4
Kent, Com. 475-7; 3 Id. 464-5.
2. The eviction may be total or partial. It is total, when the
possessor is wholly deprived of his rights in the whole thing;
partial, when he is deprived of only a portion of the thing; as,
if he had fifty acres of land, and a third person recovers by a
better title twenty-five; or, of some right in relation to the
thing. as, if a stranger should claim and establish a right to
some easement over the same. When the grantee suffers a total
eviction, and he has a covenant of seisin, he recovers from the
seller, the consideration money, with interest and costs, and no
more. The grantor has no concern with the future rise or fall of
the property, nor with the improvements made by the purchaser.
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This seems to be the general rule in the United States. 3 Caines'
R. 111; 4 John. R. 1; 13 Johns. R. 50; 4 Dall. R. 441;
Cooke's Term. R. 447; 1 Harr. & Munf. 202; 5 Munf. R. 415; 4
Halst. R. 139; 2 Bibb, R. 272. In Massachusetts, the measure of
damages on a covenant of warranty, is the value of the land at
the time of eviction. 3 Mass. R. 523; 4 Mass. R. 108. See, as to
other states, 1 Bay, R. 19, 265; 3 Des. Eq. R. 245; 2 Const. R.
584; 2 McCord's R. 413; 3 Call's R. 326.
3. When the eviction is only partial the damages to be
recovered under the covenant of seisin, are a rateable part of
the original price, and they are to bear the same ratio to the
whole consideration, that the value of land to which the title
has failed, bears to the value of the whole tract. The contract
is not rescinded, so as to entitle the vendee to the whole
consideration money, but only to the amount of the relative value
of the part lost. 5 Johns. R. 49; 12 Johns. R. 126; Civ. Code
of Lo. 2490; 4 Kent's Com. 462. Vide 6 Bac. Ab. 44; 1 Saund. R.
204: note 2, and 322 a, note 2; 1 Bouv. Inst. n. 656.
EVIDENCE. That which demonstrates, makes clear, or ascertains
the truth of the very fact or point in issue; 3 Bl. Com. 367;
or it is whatever is exhibited to a court or jury, whether it be
by matter of record, or writing, or by the testimony of
witnesses, in order to enable them to pronounce with certainty;
concerning the truth of any matter in dispute; Bac. Ab.
Evidence, in pr.; or it is that which is legally submitted to a
jury, to enable them to decide upon the questions in dispute or
issue, as pointed out by the pleadings and distinguished from all
comment or argument. 1 Stark. Ev. 8.
2. Evidence may be considered with reference to, 1. The nature
of the evidence. 2. The object of the evidence. 3. The
instruments of evidence. 4. The effect of evidence. 1. As to its
nature, evidence may be considered with reference to its being 1.
Primary evidence. 2. Secondary evidence. 3. Positive. 4.
Presumptive. 5. Hearsay. 6. Admissions.
4. - 1. Primary evidence. The law generally requires that the
best evidence the case admits of should be given; B. N. P. 293;
1 Stark. Ev. 102, 390; for example, when a written contract has
been entered into, and the object is to prove what it was, it is
requisite to produce the original writing if it is to be
attained, and in that case no copy or other inferior evidence
will be received.
5. To this general rule there are several exceptions. 1. As it
refers to the quality rather than to the quantity of evidence, it
is evident that the fullest proof that every case admits of, is
not requisite; if, therefore, there are several eye-witnesses to
a fact, it may be sufficiently proved by one only.
2. It is not always requisite, when the matter to be proved has
been reduced to writing, that the writing should be produced;
as, if the narrative of a fact to be proved has been committed to
writing, it may yet be proved by parol evidence. A receipt for
the payment of money, for example, will not exclude parol
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evidence of payment. 14 Esp. R. 213; and see 7 B. & C. 611; S.
C. 14 E. C. L. R. 101; 1 Campb. R. 439; 3 B. & A. 566; 6 E. C.
L. R. 377.
6. - 2. Secondary evidence. That species of proof which is
admissible on the loss of primary evidence, and which becomes by
that event the best evidence. 3 Yeates, Rep. 530.
7. It is a rule that the best evidence, or that proof which
most certainly exhibits the true state of facts to which it
relates, shall be required, and the law rejects secondary or
inferior evidence, when it is attempted to be substituted for
evidence of a higher or superior nature. This is a rule of
policy, grounded upon a reasonable suspicion, that the
substitution of inferior for better evidence arises from sinister
motives; and an apprehension that the best evidence, if
produced, would alter the case to the prejudice of the party.
This rule relates not to the measure and quantity of evidence,
but to its quality when compared with some other evidence of
superior degree. It is not necessary in point of law, to give the
fullest proof that every case may admit of. If, for example,
there be several eye witnesses to a fact, it may be proved by the
testimony of one only.
8. When primary evidence cannot be had, then secondary evidence
will be admitted, because then it is the best. But before such
evidence can be allowed, it must be clearly made to appear that
the superior evidence is not to be had. The person who possesses
it must be applied to, whether he be a stranger or the opposite
party; in the case of a stranger, a subpoena and attachment,
when proper, must be taken out and served; and, in the case of a
party, notice to produce such primary evidence must be proved
before the secondary evidence will be admitted. 7 Serg. & Rawle,
116; 6 Binn. 228; 4 Binn. R. 295, note; 6 Binn. R. 478; 7
East, R. 66; 8 East, R. 278 3 B. & A. 296; S. C. 5 E. C. L. R.
291.
9. After proof of the due execution of the original, the
contents should be proved by a counterpart, if there be one, for
this is the next best evidence; and it seems that no evidence of
a mere copy is admissible until proof has been given that the
counterpart cannot be produced. 6 T. R. 236. If there be no
counterpart, a copy may be proved in evidence. by any witness who
knows that it is a copy, from having compared it with the
original. Bull. N. P. 254; 1 Keb. 117; 6 Binn. R. 234; 2
Taunt. R. 52; 1 Campb. R. 469 8 Mass. R. 273. If there be no
copy, the party may produce an abstract, or even give parol
evidence of the contents of a deed. 10 Mod. 8; 6 T. R. 556.
10. But it has been decided that there are no degrees in
secondary evidence: and when a party has laid the foundation for
such evidence, he may prove the contents of a deed by parol,
although it appear that an attested copy is in existence. 6 C. &
P. 206; 8 Id. 389.
11. - 3. Positive or direct evidence is that which, if
believed, establishes the truth of a fact in issue, and does not
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arise from any presumption. Evidence is direct and positive, when
the very facts in dispute are communicated by those who have the
actual knowledge of them by means of their senses. 1 Phil. Ev.
116 1 Stark. 19. In one sense, there is but little direct or
positive proof, or such proof as is acquired by means of one's
own sense, all other evidence is presumptive but, in common
acceptation, direct and positive evidence is that which is
communicated by one who has actual knowledge of the fact.
12. - 4. Presumptive evidence is that which is not direct, but
where, on the contrary, a fact which is not positively known, is
presumed or inferred from one or more other facts or
circumstances which are known. Vide article Presumption, and
Rosc. Civ. Ev. 13; 1 Stark. Ev. 18.
13. - 5. Hearsay, is the evidence of those who relate, not what
they know themselves, but what they have heard from others.
14. Such mere recitals or assertions cannot be received in
evidence, for many reasons, but principally for the following:
first, that the party making such declarations is not on oath
and, secondly, because the party against whom it operates, has no
opportunity of cross-examination. 1 Phil. Ev. 185. See, for other
reasons, 1 Stark. Ev. pt. 1, p. 44. The general rule excluding
hearsay evidence, does not apply to those declarations to which
the party is privy, or to admissions which he himself has made.
See Admissions.
15. Many facts, from their very nature, either absolutely, or
usually exclude direct evidence to prove them, being such as are
either necessarily or usually, imperceptible by the senses, and
therefore incapable of the ordinary means of proof. These are
questions of pedigree or relationship, character, prescription,
custom, boundary, and the like; as also questions which depend
upon the exercise of particular skill and judgment. Such facts,
some from their nature, and others from their antiquity, do not
admit of the ordinary and direct means of proof by living
witnesses; and, consequently, resort must be had to the best
means of proof which the nature of the cases afford. See
Boundary; Custom; Opinion; Pedigree; Prescription.
16. - 6. Admissions are the declarations which a party by
himself, or those who act under his authority, make of the
existence of certain facts. Vide Admissions.
17.- §2. The object of evidence is next to be considered. It is
to ascertain the truth between the parties. It has been
discovered by experience that this is done most certainly by the
adoption of the following rules, which are now binding as law: 1.
The evidence must be confined to the point in issue. 2. The
substance of the issue must be proved, but only the substance is
required to be proved. 3. The affirmative of the issue must be
proved.
18. - 1. It is a general rule, both in civil and criminal
cases, that the evidence shall be confined to the point in issue.
Justice and convenience require the observance of this rule,
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particularly in criminal cases, for when a prisoner is charged
with an offence, it is of the utmost importance to him that the
facts laid before the jury should consist exclusively of the
transaction, which forms the subject of the indictment, and,
which alone he has come prepared to answer. 2 Russ. on Cr. 694;
1 Phil. Ev. 166.
19. To this general rule, there are several exceptions, and a
variety of cases which do not fall within the rule. 1. In
general, evidence of collateral facts is not admissible; but
when such a fact is material to the issue joined between the
parties, it may be given in evidence; as, for example, in order
to prove that the acceptor of a bill knew the payee to be a
fictitious person; or that the drawer had general authority from
him to fill up bills with the name of a fictitious payee,
evidence may be given to show that he had accepted similar bills
before they could, from their date, have arrived from the place
of date. 2 H. Bl. 288.
20. - 2. When special damage sustained by the plaintiff is not
stated in the declaration, it is Dot one of the points in issue,
and therefore, evidence of it cannot be received; yet a damage
which is the necessary result of the defendant's breach of
contract, may be proved, notwithstanding it is not in the
declaration. 11 Price's Reports, 19.
21. - 3. In general, evidence of the character of either party
to a suit is inadmissible, yet in some cases such evidence may be
given. Vide article Cha?-acter.
22. - 4. When evidence incidentally applies to another person
or thing not included in the transaction in question, and with
regard to whom or to which it is inadmissible; yet if it bear
upon the point in issue, it will be re-ceived. 8 Bingh. Rep. 376;
S. C. 21 Eng. C. L. R. 325 and see 1 Phil. Ev. 158; 2 East, P.
C. 1035; 2 Leach, 985; S. C. 1 New Rep. 92; Russ. & Ry. C. C.
376; 2 Yeates, 114; 9 Conn. Rep. 47.
23. - 5. The acts of others, as in the case of conspirators,
may be given in evidence against the prisoner, when referable to
the issue; but confessions made by one of several conspirators
after the offence has been completed, and when the conspirators
no longer act in concert) cannot be received. Vide article
Confession, and 10 Pick. 497; 2 Pet. Rep. 364; 2 Brec. R. 269;
3 Serg. & Rawle, 9; 1 Rawle, 362, 458; 2 Leigh's R. 745; 2
Day's Cas. 205; 3 Serg. & Rawle, 220; 3 Pick. 33; 4 Cranch,
75; 2 B. & A. 573-4 S. C. 5. E. C. L. R. 381.
24. - 6. In criminal cases, when the offence is a cumulative
one, consisting itself in the commission of a number of acts,
evidence of those acts is not only admissible, but essential to
support the charge. On an indictment against a defendant for a
conspiracy, to cause himself, to be believed a man of large
property, for the purpose of defrauding tradesmen after proof of
a representation to one tradesman, evidence may therefore be
given of a representation to another tradesman at a different
time. 1 Campb. Rep. 399; 2 Day's Cas. 205; 1 John. R. 99; 4
Rogers' Rec. 143; 2 Johns. Cas. 193.
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25. - 7. To prove the guilty knowledge of a prisoner, with
regard to the transaction in question, evidence of other offences
of the same kind, committed by the prisoner, though not charged
in the indictment, is admissible against him. As in the case
where a prisoner had passed a counterfeit dollar, evidence that
he had. other counterfeit dollars in his possession is evidence
to prove the guilty knowledge. 2 Const. R. 758; Id. 776; 1
Bailey, R. 300; 2 Leigh's R. 745; 1 Wheeler's Cr. Cas. 415; 3
Rogers' Rec. 148; Russ. & Ry. 132; 1 Campb. Rep. 324; 5
Randolph's R. 701.
26. - 2. The substance of the issue joined between the parties
must be proved. 1 Phil. Ev. 190. Under this rule will be
considered the quantity of evidence required to support
particular averments in the declaration or indictment.
27. And, first, of civil cases. 1. It is a fatal variance in a
contract, if it appear that a party who ought to have been joined
as plaintiff has been omitted. 1 Sauud. 291 b, n.; 2 T. R. 282.
But it is no variance to omit a person who might have been joined
as defendant, because the non-joinder ought to have been pleaded
in abatement. 1 Saund. 291 d, n. 2. The consideration of the
contract must be proved but it is not necessary for the plaintiff
to set out in his declaration, or prove on the trial, the several
parts of a contract consisting of distinct and collateral
provisions; it is sufficient to state so much of the contract as
contains the entire consideration of the act, and the entire act
to be done in virtue of such consideration, including the time,
manner, and other circumstances of its performance. 6 East, R.
568; 4 B. & A. 387; 6 E. C. L. R. 455.
28. - Secondly. In criminal cases, it may be laid down, 1. That
it is, in general, sufficient to prove what constitutes an
offence. It is enough to prove so much of the indictment as shows
that the defendant has committed a substantive crime therein
specified. 2 Campb. R. 585; 1 Harr. & John. 427. If a man be
indicted for robbery, he may be found guilty of larceny, and not
guilty of the robbery. 2 Hale, P. C. 302. The offence of which
the party is convicted, must, however, be of the same class with
that of which he is charged. 1 i Leach, 14; 2 Stra. 1133.
29. - 2. When the intent of the prisoner furnishes one of the
ingredients in the offence, and several intents are laid in the
indictment, each of which, together with the act done,
constitutes an offence, it is sufficient to prove one intent
only. 3 Stark. R. 35; 14 E. C. L. R. 154, 163.
30. - 3. When a person or thing, necessary to be mentioned in
an indictment, is described with circumstances of greater
particularity than is requisite, yet those circumstances must be
proved. 3 Rogers' Rec. 77; 3 Day's Cas. 283. For example, if a
party be charged with stealing a black horse, the evidence must
correspond with the averment, although it was unnecessary to make
it. Roscoe's Cr. Ev. 77 4 Ohio, 350.
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31. - 4. The name of the prosecutor, or party injured; must be
proved as laid, and the rule is the same with reference to the
name of a third person introduced into the indictment, as.
descriptive of some person or thing.
32. - 5. The affirmative of the issue must be proved. The
general rule with regard to the burthen of proving the issue,
requires that the party who asserts the, affirmative should prove
it. But this rule ceases to operate the moment the presumption of
law is thrown into the other scale. When the issue is on the
legitimacy of a child therefore, it is incumbent on the party
asserting the illegitimacy to prove it. 2 Selw. N. P. 709. Vide
Onus Probandi; Presum 2 Gall. R. 485 and 1 McCord, 573.
33. - §3. The consideration of the instruments of evidence will
be the subject of this head. These consist of records, private
writings, or witnesses.
34. - 1. Records are to be proved by an exemplification, duly
authenticated, (Vide Authentication, in all cases where the issue
is nul tiel record. In other cases, an examined copy, duly
proved, will, in general, be evidence. Foreign laws as proved in
the mode pointed out under the article Foreign laws.
35. - 2. Private writings are proved by producing the attesting
witness; or in case of his death, absence, or other legal
inability to testify, as if, after attesting the paper, he
becomes infamous, his handwriting may be proved. When there is no
witness to the instrument, it may be proved by the evidence of
the handwriting of the party, by a person who has seen him write,
or in a course of correspondence has become acquainted with his
hand. See Comparison of handwriting, and 5 Binn. R. 349; 10
Serg. & Rawle, 110; 11 Serg. & Rawle, 333 3 W. C. C. R. 31; 11
Serg. & Rawle, 347 6 Serg. & Rawle, 12, 812; 1 Rawle, R. 223; 3
Rawle, R. 312; 1 Ashm. R. 8; 3 Penn. R. 136.
36. Books of original entry, when duly proved, are prima facie
evidence of goods sold and delivered, and of work and labor done.
Vide original entry.
37. - 3. Proof by witnesses. The testimony of witnesses is
called parol evidence, or that which is given viva voce, as
contra-distinguished from that which is written or documentary.
It is a general rule, that oral evidence shall in no case be
received as equivalent to, or as a substitute for, a written
instrument, where the latter is required by law; or to give
effect to a written instrument which is defective in any
particular which by law is essential to its validity; or to
contradict, alter or vary a written instrument, either appointed
by law, or by the contract of the parties, to be the appropriate
and authentic memorial of the particular facts it recites; for
by doing so, oral testimony would be admitted to usurp the place
of evidence decidedly superior in degree. 1 Serg. & Rawle, 464;
Id. 27; Addis. R. 361; 2 Dall. 172; 1 Yeates, 140; 1 Binn.
616; 3 Marsh. Ken. R. 333; 4 Bibb, R. 473; 1 Bibb, R. 271; 11
Mass. R. 30; 13 Mass. R. 443; 3 Conn. 9; 20 Johns. 49; 12
Johns. R. 77; 3 Camp. 57; 1 Esp. C. 53; 1 M. & S. 21; Bunb.
175.
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38. But parol evidence is admissible to defeat a written
instrument, on the ground of fraud, mistake, &c., or to apply it
to its proper subject matter; or, in some instances, as
ancillary to such application, to explain the meaning of doubtful
terms, or to rebut presumptions arising extrinsically. In these
cases, the parol evidence does not usurp the place, or arrogate
the authority of, written evidence, but either shows that the
instrument ought not to be allowed to operate at all, or is
essential in order to give to the instrument its legal effect. 1
Murph. R. 426 4 Desaus. R. 211; 1 Desaus. R. 345 1 Bay, R. 247;
1 Bibb, R. 271 11 Mass. R. 30; see 1 Pet. C. C. R. 85 1 Binn. R.
610; 3 Binn. R. 587: 3 Serg. Rawle, 340; Poth. Obl. Pl. 4, c.
2.
39. - §4. The effect of evidence. Under this head will be
considered, 1st. The effect of judgments rendered in the United
States, and of records lawfully made in this country; and, 2d.
The effect of foreign judgments and laws.
40. - 1. As a general rule, a judgment rendered by a court of
competent jurisdiction, directly upon the point in issue, is a
bar between the same parties: 1 Phil. Ev. 242; and privies in
blood, as an heir 3 Mod. 141; or privies in estate 1 Ld. Raym.
730; B. N. P. 232; stand in the same situation. as those they
represent; the verdict and judgment may be used for or against
them, and is conclusive. Vide Res Judicata.
41. The Constitution of the United States, art. 4, s. 1,
declares, that "Full faith and credit shall be given, in each
state, to the public acts, records, and judicial proceedings of
every other state. And congress may, by general laws, prescribe
the manner in which Such acts, records and proceedings, shall be
proved, and the effect thereof." Vide article Authentication and
7 Cranch, 481; 3 Wheat. R. 234 10 Wheat. R. 469; 17 Mass. R.
546; 9 Cranch, 192; 2 Yeates, 532; 7 Cranch, 408; 3 Bibb's R.
369; 5 Day's R. 563; 2 Marsh. Kty. R. 293.
42. - 2. As to the effect of foreign laws, see article Foreign
Laws. For the force and effect of foreign judgments, see article
Foreign Judgments. Vide, generally, the Treatises on Evidence, of
Gilbert, Phillips, Starkie, Roscoe, Swift, Bentham, Macnally,
Peake, Greenleaf, and Bouv. Inst. Index, h. t.; the various
Digests, h. t.
EVIDENCE, CIRCUMSTANTIAL. The proof of facts which usually
attend other facts sought to be, proved; that which is not
direct evidence. For example, when a witness testifies that a man
was stabbed with a knife, and that a piece of the blade was found
in the wound, and it is found to fit exactly with another part of
the blade found in the possession of the prisoner; the facts are
directly attested, but they only prove circumstances, and hence
this is called circumstantial evidence.
2. Circumstantial evidence is of two kinds, namely, certain and
uncertain. It is certain when the conclusion in question
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necessarily follows as, where a man had received a mortal wound,
and it was found that the impression of a bloody left hand had
been made on the left arm of the deceased, it was certain some
other person than the deceased must have made such mark. 14 How.
St. Tr. 1324. But it is uncertain whether the death was caused by
suicide or by murder, and whether the mark of the bloody hand was
made by the assassin, or by a friendly hand that came too late to
the relief of the deceased. Id. Vide Circumstances.
EVIDENCE, CONCLUSIVE. That which, while uncontradicted,
satisfies the judge and jury it is also that which cannot be
contradicted.
2. The record of a court of common law jurisdiction is
conclusive as to the facts therein stated. 2 Wash. 64; 2 H. 55;
6 Conn. 508, But the judgment and record of a prize court is not
conclusive evidence in the state courts, unless it had
jurisdiction of the subject-matter; and whether it had or not,
the state courts may decide. 1 Conn. 429. See as to the
conclusiveness of the judgments of foreign courts of admiralty, 4
Cranch, 421, 434; 3 Cranch, 458; Gilmer, 16 Const. R. 381 1 N.
& M. 5 3 7.
EVIDENCE, DIRECT. That which applies immediately to the fadum
probandum, without any intervening process; as, if A testifies
he saw B inflict a mortal wound on C, of which he, instantly
died. 1 Greenl. Ev. §13.
EVIDENCE, EXTRINSIC. External evidence, or that which is not
contained in the body of an agreement, contract, and the like.
2. It is a general rule that extrinsic evidence cannot be
admitted to contradict, explain, vary or change the terms of a
contract or of a will, except in a latent ambiguity, or to rebut
a resulting trust. 14 John. 1; 1 Day, R. 8; 6 Conn. 270.
EVOCATION, French law. The act by which a judge is deprived of
the cognizance of a suit over which he had jurisdiction, for the
purpose of conferring on other judges the power of deciding it.
This is done with us by writ of certiorari.
EWAGE. A toll paid for water passage. Cowell. The same as
aquagium. (q. v.)
EX CONTRACTU. This term is applied to such things as arise from
a contract; as an action which arises ex contractu. Vide Action.
EX DELICTO. Those actions which arise in consequence of a
crime, misdemeanor, fault, or tort; actions arising ex delicto
are case, replevin, trespass, trover. See Action.
EX DOLO MALO. Out of fraud or deceit. When a cause of action
arises from fraud or deceit, it cannot be supported: Ex dolo
malo, non oritur actio.
EX AEQUO ET BONO. In equity and good conscience. A man is bound
to pay money which ex oequo et bono he holds for the use of
another.
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EX MERO MOTU. Mere motion of a party's own free will. To
prevent injustice, the courts will, ex mero motu, make rules and
orders which the parties would not strictly be entitled to ask
for.
EX MORA. From the delay; from the default. All persons are
bound to make amends for damages which arise from their own
default.
EX NECESSITATE LEGIS. From the necessity of law.
EX NECESSITATE REI. From the necessity of the thing. Many acts
may be done ex necessitate ret, which would not be justifiable
without it; and sometimes property is protected, ex necessitate
rei, which, under, other circumstances, would not be so. For
example, property put upon the land of another from necessity,
cannot be distrained for rent. See Distress; Necessity.
EX OFFICIO. By virtue of his office. 2. Many powers are granted
and exercised by public officers which are not expressly
delegated. A judge, for example, may, ex officio, be a
conservator of the peace, and a justice of the peace.
EX PARTE. Of the one part. Many things may be done ex parte,
when the opposite party has had notice; an affidavit or
deposition is said to be taken ex parte when only one of the
parties attends to taking the same. Ex parte paterna, on the side
of the father, or property descended to a person from his father;
ex parte materna, on the part of the mother.
EX POST FACTO, contracts, crim. law. This is a technical
expression, which signifies, that something has been done after
another thing, in relation to the latter.
2. An estate granted, may be made good or avoided by matter ex
post facto, when an election is given to the party to accept or
not to accept. 1 Co . 146.
3. The Constitution of the United States, art. 1, sec. 10,
forbids the states to pass any ex post facto law; which has been
defined to be one which renders the act punishable in a manner in
which it was not punishable when it was committed. 6 Cranch, 138.
This definition extends to laws passed after the act, and
affecting a person by way of punishment of that act, either in
his person or estate. 3 Dall. 386; 1 Blackf. Ind. R. 193 2 Pet.
U. S. Rep. 413 1 Kent, Com. 408; Dane's Ab. Index, h. t.
4. This prohibition in the constitution against passing ex post
facto law's, applies exclusively to criminal or penal cases, and
not to civil cases. Serg. Const. Law, 356. Vide 2 Pick. R. 172;
11 Pick. R. 28; 2 Root, R. 350; 5 Monr. 133; 9 Mass. R. 363;
3 N. H. Rep. 475; 7 John. R. 488; 6 Binn. R. 271; 1 J. J.
Marsh, 563; 2 Pet. R. 681; and the article Retrospective.
EX VI TERMINI. By force of the term; as a bond ex vi termini
imports a sealed instrument.
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EX VISITATIONE DEI. By or from the visitation of God. This
phrase is frequently employed in inquisitions by the coroner,
where it signifies that the death of the deceased is a natural
one.
EX TEMPORE. From the time without premeditation.
EXACTION, torts. A willful wrong done by an officer, or by one
who, under color of his office, takes more fee or pay for his
services than what the law allows. Between extortion and exaction
there is this difference; that in the former case the officer
extorts more than his due, when something is due to him; in the
latter, he exacts what is not his due, when there is nothing due
to him. Wishard; Co. Litt. 368.
EXAMINATION, crim. law. By the common law no one is bound to
accuse himself. Nemo tenetur prodere seipsum. In England, by the
statutes of Philip and Mary, (1 & 2 P. & M. c. 13; 2 & 3 P. & M.
c. 10,) the principles of which have been adopted in several of
the United States, the justices before whom any person shall be
brought, charged with any of the crimes therein mentioned, shall
take the examination of the prisoner, as well is that of the
witnesses, in writing, which the magistrates shall subscribe, and
deliver to the officer of the court where the trial is to be had.
The signature of the prisoner, when not specially required by
statute, is not indispensable, though it is proper to obtain it,
when it can be obtained. 1 Chit. Cr. Law, 87; 2 Leach, Cr. Cas.
625.
2. It will be proper to consider, 1. The requisites of such
examination. 2. How it is to be proved. 3. Its effects.
3. - 1. It is required that it should, 1st. Be voluntarily
made, without any compulsion of any kind; and, 2d. It must be
reduced to writing. 1st. The law is particularly solicitous to
let the prisoner be free in making declarations in his
examination; and if the prisoner has not been left entirely
free, or did not consider himself to be so, or if he did not feel
at liberty wholly to decline any explanation or declaration
whatever, the examination is not considered voluntary, and the
writing cannot be read in evidence against him, nor can parol
evidence be received of what the prisoner said on the occasion. 5
C. & P. 812; 7 C. & P. 177; 1 Stark. R. 242; 6 Penn. Law
Journ. 120. The prisoner, of course, cannot be sworn, and make
his statement under oath. Bull. N. P. 242; 4 Hawk. P. C. book 2,
c. 46, §37; 4 C. & P. 564. 2a. The statute requires that the
examination shall be reduced to writing, or so much as may be
material, and the law presumes the magistrate did his duty and
took down all that was material. Joy on Conf. 89-92; 1 Greenl.
Ev. §227. The prisoner need not sign the examination so reduced
to writing, to give it validity; but, if being asked to sign it,
he absolutely refuse, it will be considered incomplete. 2 Stark.
R. 483; 2 Leach, Cr. Cas. 627, n.
4. - 2. The certificate of the magistrate is conclusive
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evidence of the manner in which the examination was conducted. 7
C. & P. 177; 9 C. & P. 124; 1 Stark. R. 242. Before it can be
given in evidence, its identity must be proved, as well as the
identity of the prisoner. When the prisoner has signed the
examination, proof of his handwriting is sufficient evidence that
he has read it; but if he has merely made his mark, or not
signed it at all, the magistrate or clerk must identify the
prisoner, and prove that the writing was duly read to him, and
that he assented to it. l Greenl. Ev. §520; 1 M. & Rob. 395.
5. - 3. The effect of such an examination, when properly taken
and proved, is sufficient to found a conviction. 1 Greenl. Ev.
§216.
EXAMINATION, practice. The interrogation of a witness, in order
to ascertain his knowledge as to the facts in dispute between
parties. When the examination is made by the party who called the
witness, it is called an examination in chief. When it is made by
the other party, it is known by the name of cross-examination.
(q. v.)
2. The examination is to be made in open court, when
practicable; but when,: on account of age, sickness, or other
cause, the witness cannot be so examined, then it may be made
before authorized commissioners. In the examination in chief the
counsel cannot ask leading questions, except in particular cases.
Vide Cross-examination; Leading question.
3. The laws of the several states require the private
examination of a feme covert before a competent officer, in order
to pass her title to her own real estate or the interest she has
in that of her hushand: as to the mode in which this is to be
done, see Acknowledment. See, also, 3 Call, R. 394; 5 Mason's R.
59; 1 Hill, R. 110; 4 Leigh, R. 498; 2 Gill & John. 1; 3
Rand. R. 468 1 Monr. R. 49; 3 Monr. R. 397; 1 Edw. R. 572; 3
Yerg. R. 548 1 Yerg. R. 413 3 J. J. Marsh. R. 241 2 A. K. Marsh.
R. 67; 6 Wend. R. 9; 1 Dall. 11, 17; 3 Yeates, R. 471; 8 S. &
R. 299; 4 S. & R. 273.
EXAMINED COPY. This phrase is applied to designate a paper
which is a copy of a record, public book, or register, and which
has been compared with the original. 1 Campb. 469.
2. Such examined copy is admitted in evidence, because of the
public inconvenience which would arise, if such record, public
book, or register, were removed from place to place, and because
any fraud or mistake made in the examined copy would be so
easily, detected. 1 Greenl. Ev. §91; 1 Stark. Ev. 189-191. But
an answer in chancery, on which the defendant was indicted for
perjury, or where the original must be produced in order to
identify the party by proof of handwriting, an examined copy
would not be evidence. 1 M. & Rob. 189. Vide Copy.
EXAMINERS, practice. Persons appointed to question students of
law, in order to ascertain their qualifications before they are
admitted to practice. Officers in the courts of chancery whose
duty it is to examine witnesses, are also called examiners. Com.
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Dig. Chancery, P 1. For rules as to the mode of taking
examinations, see Gresl. Eq. Ev. pt. 1, c, 3, s. 2.
EXAMPLE. An example is a case put to illustrate a. principle.
Examples illustrate, but do not restrain or change the laws:
illustrant non restringunt legem. Co. Litt. 24, a.
EXCAMBIATOR. The name of an exchanger of lands; a broker. This
term is now obsolete.
EXCAMBIUM. Exchange. (q. v.)
EXCEPTIO REI JUDICATAE, civil law. The name of a plea by which
the defendant alleges that the matter in dispute between the
parties has been before adjudged. See Res judicata.
EXCEPTION, Eng. Eq. practice. Re-interrogation. 2 Benth. Ev.
208, n.
EXCEPTION, legislation, construction. Exceptions are rules
which limit the extent of other more general rules, and render
that just and proper, which would be, on account of its
generality, unjust and improper. For example, it is a general
rule that parties competent may make contracts; the rule that
they shall not make any contrary to equity, or contra bonos
mores, is the exception.
EXCEPTION, contracts. An exception is a clause in a deed,. by
which the lessor excepts something out of that which he granted
before by the deed.
2. To make a valid exception, these things must concur: 1. The
exception must be by apt words; as, saving and excepting, &c. 2.
It must be of part of the thing previously described, and not of
some other thing. 3. It must be part of the thing only, and not
of all, the greater part, or the effect of the thing granted; an
exception, therefore, in a lease, which extends to the whole
thing demised, is void. 4. It must be of such thing as is
severable from the demised premises, and hot of an inseparable
incident. 5. It must be of a thing as he that accepts may have,
and which properly belongs to him. 6. It must be of a particular
thing out of a general, and not of a particular thing out of a
particular thing. 7. It must be particularly described and set
forth; a lease of a tract of land, except one acre, would be
void, because that acre was not particularly described. Woodf.
Landl. and Ten. 10; Co. Litt. 47 a; Touchs. 77; 1 Shepl. R.
337; Wright's R. 711; 3 John. R., 375 8 Conn. R. 369; 6 Pick.
R. 499; 6 N. H. Rep. 421. Exceptions against common right and
general rules are construed as strictly as possible. 1 Barton's
Elem. Conv. 68.
3. An exception differs from a reservation; the former is
always a part of the thing granted; the latter is of a thing not
in esse but newly created or reserved. An exception differs also
from an explanation, which by the use of a videlicet, proviso,
&c., is allowed only to explain doubtful clauses precedent, or to
separate and distribute generals, into particulars. 3 Pick. R.
272.
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EXCEPTION, practice, pleading. This term is used in the civil,
nearly in the same sense that the word plea has in the common
law. Merl. Repert. h. t.; Ayl. Parerg. 251.
2. In chancery practice, it is the allegation of a party in
writing, that some pleading or proceeding in a cause is
insufficient. 1 Harr. Ch. Pr. 228.
3. Exceptions are dilatory or peremptory. Bract. lib. 5, tr. 5;
Britton, cap. 91, 92; 1 Lilly's Ab. 559. Dilatory exceptions are
such as do not tend to defeat the action, but only to retard its
progress. Poth. Proc. civ. partie 1, c. 2, s. 2, art. 1; Code of
Pract. of Lo. art. 332. Declinatory exceptions have this effect,
as well as the exception of discussion opposed by a third
possessor, or by a surety in an hypothecary action, or the
exception taken in order to call in the warrantor. Id.; 7 N. S.
282; 1 L. R. 38, 420. These exceptions must, in general, be
pleaded in limine litis before issue joined. Civ. Code of Lo.
2260; 1 N. S. 703; 2 N. S. 389; 4 L. R. 104; 10 L. R. 546. A
declinatory exception is a species of dilatory exception, which
merely declines the jurisdiction of the judge before whom the
action is brought. Code of Pr. of L. 334.
4. Peremptory exceptions are those which tend to the dismissal
of the action. Some relate to forms, others arise from the law.
Those which relate to formes, tend to have the cause dismissed,
owing to some nullities in the proceedings. These must be pleaded
in limine litis. Peremptory exceptions founded on law, are those
which, without going into the merits of the cause, show that the
plaintiff cannot maintain his action, either because it is
prescribed, or because the cause of action has been destroyed or
extinguished. These may be pleaded at any time previous to
definitive judgment. Id. art. 343, 346; Poth. Proc. Civ. partie
1, c. 2, s. 1, 2, 3. These, in the French law, are called Fins
de. non recevoir. (q. v.)
5. By exception is also meant the objection which is made to
the decision of a judge in the course of a trial. See Bill of
Exception.
EXCHANGE, com. law. This word has several significations.
2. - 1. Exchange is a negotiation by which one person transfers
to another funds which he has in a certain place, either at a
price agreed upon, or which is fixed by commercial usage. This
transfer is made by means of an instrument which represents such
funds, and is well known by the name of a bill of exchange.
3. - 2. The price which is paid in order to obtain such
transfer, is also known among merchants by the name of exchange;
as, exchange on England is five per cent. See 4 Wash. C. C. R.
307. Exchange on foreign money is to be calculated according to
the usual rate at the time of trial. 5 S. & R. 48.
4. - 3. Barter, (q. v.) or the transfer of goods and chattels
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for other goods and chattels, is also known by the name of
exchange, though the term barter is more commonly used.
5. - 4. The French writers on commercial law, denominate the
profit which arises from a maritime loan, exchange, when such
profit is a per centage on the money lent, considering it in the
light of money lent in one place to be returned in another, with
a difference in amount in the sum borrowed and that paid, arising
from the difference of time and place. Hall on Mar. Loans, 56,
n.; and the articles Interest; Maritime; Premium.
6. - 5. By exchange is also meant, the place where merchants,
captains of vessels, exchange agents and brokers, assemble to
transact their business. Code de Comm. art. 71.
7. - 6. According to the Civil Code of Louisiana, art. 1758,
exchange imports a reciprocal contract, by which. the parties
enter into mutual agreement. 14 Pet. 133. Vide the articles.
Bills of Exchange; Damages on Bills of Exchange and Reexchange.
Also Civ. Code of Lo. art. 2630.
EXCHANGE conveyancing. An exchange is a mutual grant of equal
interests in land, the one in consideration of the other. 2 Bl.
Com. 323; Litt. s. 62; Touchs. 289; Watk. Prin. Con. It is
said that exchange, in the United States, does not differ from
bargain and sale. 2 Bouv. Inst. n. 2055.
2. There are five circumstances necessary to an exchange. 1.
That the estates given be equal. 2. That the word escambium or
exchange be used, which cannot be supplied by any other word, or
described by circumlocution. 3. That there be an execution by
entry or claim in the life of the parties. 4. That if it be of
things which lie in grant, it be by deed. 5. That if the lands
lie in several counties, it be by deed indented; or if the thing
lie in grant, though they be in one county. In practice this mode
of conveyancing is nearly obsolete. Vide Cruise, Dig. tit. 32
Perk. ch. 4 10 Vin. Ab. 125; Com. Dig. h. t.; Nels. Ab. h. t.;
Co. Litt. 51; Hardin's R. 593 1 N. H. Rep. 65 3 Har. & John.
361; 1 Rolle's Ab. 813 .3 Wils. R. 489. Vide Watk. Prin. Con. b.
2, c. 5; Horsman, 362 and 3 Wood, 243, for forms.
EXCHEQUER R, Eng. law. An ancient court of record set up by
William the Conqueror. It is called exchequer from the chequered
cloth, resembling a chesshoard, which covers the table there. 3
Bl. Com. 45. It consists of two divisions; the receipt of the
exchequer, which manages the royal revenue; and the court, or
judicial part of it, which is again divided into a court of
equity, and a court of common law. Id. 44.
2. In this court all personal actions may be brought, and suits
in equity commenced, the plaintiff in both (fictitiously for the
most part) alleging himself to be the king's debtor, in order to
give the court jurisdiction of the cause. Wooddes. Lect. 69. But
by stat. 2 Will. IV. c. 39, s. 1, a change has been made in this
respect.
EXCHEQUER CHAMBER, Eng. law. A court erected by statute 31 Ed.
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III. c. 12, to determine causes upon writs of error from the
common law side of the court of exchequer. 3 Bl. Com. 55. Another
court of exchequer chamber was created by the stat. 27 El. c. 8,
consisting of the justices of the common bench, and the barons of
the exchequer. It has authority to examine by writ of err6r the
proceedings of the king's bench, not so generally as that erected
by the statute of Edw. III., but in certain enumerated actions.
EXCISES. This word is used to signify an inland imposition,
paid sometimes upon the consumption of the commodity, and
frequently upon the retail sale. 1 Bl. Com. 318; 1 Tuck. Bl.
Com. Appx. 341; Story, Const. §950.
EXCLUSIVE, rights. Debarring one from participating in a thing.
An exclusive right or privilege, is one granted to a person to do
a thing, and forbidding all others to do the same. A patent right
or copyright, are of this kind.
EXCLUSIVE, computation of time. Shut out; not included. As
when an act is to be done within a certain time, as ten days from
a particular time, one day is to be included and the other
excluded. Vide Hob. 139; Cowp. 714; Lofft, 276; Dougl. 463; 2
Mod. 280; Sav. 124; 3 ]Penna. Rep. 200; 1 Serg. & Rawle, 43;
3 B. & A. 581; Com. Dig. Temps, A; 3 East, 407; Com. Dig.
Estates, G 8; 2 Chit. Pr. 69, 147.
EXCOMMUNICATION, eccl. law. An ecclesiastical sentence,
pronounced by a spiritual judge against a Christian man, by which
he is excluded from the body of the church, and disabled to bring
any action, or sue any person in the common law courts. Bac. Ab.
h. t.; Co. Litt. 133-4. In early times it was the most frequent
and most severe method of executing ecclesiastical censure,
although proper to be used, said Justinian, (Nov. 123,) only upon
grave occasions. The effect of it was to remove the
excommunicated "person not only from the sacred rites but from
the society of men. In a certain sense it interdicted the use of
fire and water, like the punishment spoken of by Caesar, (lib, 6
de Bell. Gall.). as inflicted by the Druids. Innocent IV. called
it the nerve of ecclesiastical discipline. On repentance, the
excommunicated person was absolved and received again to
communion. These are said to be the powers of binding and loosing
the keys of the kingdom of heaven. This kind of punishment seems
to have been adopted from the Roman usage of interdicting the use
of fire and water. Fr. Duaren, De Sacris Eccles. Ministeriis,
lib. 1, cap. 3. See Ridley's View of the Civil. and
Ecclesiastical Law, 245, 246, 249.
EXCOMMUNICATIO CAPIENDO, WRIT OF, Eng. eccl. law. A writ
issuing out of chancery, founded on a hishop's certificate that
the defendant had been excommunicated, which writ is returnable
in the king's bench. F. N. B. 62, 64, 65 Bac. Ab.
Excommunication, E. See Statutes 3 Ed. I. c. 15; 9 Ed. II. c.
12; 2 & 3 Ed. VI. c. 13; 5 & 6 Ed. VI c. 4; 5 Eliz. c. 23; 1
H. V. c. 5; also Cro. Eliz. 224, 6,80; Cro. Car. 421; Cro.
Jac. 567; 1 Vent. 146; 1 Salk. 293, 294, 295.
EXCUSABLE HOMICIDE, crim. law. The killing of a human being,
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when the party killing is not altogether free from blame, but the
necessity which renders it excusable, may be said to be partly
induce by his own act. 1 East, P. C. 220.
EXCUSE. A reason alleged for the doing or not doing a thing.
This word presents two ideas differing essentially from each
other. In one case an excuse may be made in, order to own that
the party accused is not guilty; in another, by showing that
though guilty, he is less so, than he appears to be. Take, for
example, the case of a sheriff who has an execution against an
individual, and who in performance of his duty, arrests him; in
an action by the defendant against the sheriff, the latter may
prove the facts, and this shall be a sufficient excuse for him:
this is an excuse of the first kind, or a complete justification;
the sheriff was guilty of no offence. But suppose, secondly, that
the sheriff has an execution against Paul, and by mistake, and
without any malicious design, be arrests Peter instead of Paul;
the fact of his having the execution against Paul and the mistake
being made, will not justify the sheriff, but it will extenuate
and excuse his conduct, and this will be an excuse of the second
kind.
3. Persons are sometimes excused for the commission of acts,
which ordinarily are crimes, either because they had no intention
of doing wrong, or because they had no power of judging, and
therefore had no criminal will (q. v.); or having power, of
judging they had no choice, and were compelled by necessity.
Among the first class may be placed infants under the age of
discretion, lunatics, and married women committing an offence in
the presence of their hushands, not malum in se, as treason or
murder; 1 Hale's P. C. 44, 45 or in offences relating to the
domestic concern or management of the house, as the keeping of a
bawdy house. Hawk. b. 1, c. 1, s. 12. Among acts of the second
kind may be classed, the beating or killing another in
self-defence; the destruction of property in order to prevent a
more serious calamity, as the tearing down of a house on fire, to
prevent its spreading to the neighboring property, and the like.
See Dalloz, Dict. h. t.
EXEAT, eccl. law. This is a Latin term, which is used to
express the written permission which a hishop gives to an
ecclesiastic to exercise the functions of his ministry in another
diocese.
TO EXECUTE. To make, to perform, to do, to follow out. This
term is frequently used in the law; as, to execute a deed is to
make a deed.
2. It also signifies to perform, as to execute a contract;
hence some contracts are called executed contracts, and others
are called executory contracts.
3. To execute also means to put to death by virtue of a lawful
sentence; as, the sheriff executed the convict.
EXECUTED. Something done; something completed. This word is
frequently used in connexion with others to designate a quality
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of such other words; as an executed contract; an executed
estate; an executed trust, &c. It is opposed to executory.
2. An executed contract is one which has been fulfilled; as,
where the buyer has paid thrice of the: thing-purchased by him.
See Agreement.
3. An executed estate is when there is vested in the grantee a
present and immediate right of present or future enjoyment; and
in another sense, the term applies to the time of enjoyment; and
in that sense, an estate is said to be executed, when it confers
a present right of present enjoyment. When the right of enjoyment
in possession is to arise at a future period, only, the estate is
executed that is, it is merely vested in point of interest: when
the right of immediate enjoyment is annexed to the estate, then
only is the estate vested in possession. 1 Prest. on Est. 62.
4. Trusts executed are, when by deed or will, lands are
conveyed, or devised, in terms or in effect , to and for the use
of one person or several persons, in trust for others, without
any direction that the trustees shall make any farther
conveyance; so that it does not appear that the author of the
trusts had a view to a future instrument for accomplishing his
intention. Prest. on Est.188.
EXECUTIO NON. These words occur in the stat. 13 Ed. I. cap. 45,
in the following connexion: Et...precipiatur vice comiti quod
scire faciat parti... quod sit ad certum diem ostensura si quid
sciat dicere quare hujustnodi irrotulata vel in fine contenta
executionem habere non debeant. This statute is the origin of the
scire facias post annum et diem quare executionem non, etc. To a
plea in bar to such a writ, the defendant should conclude that
the plaintiff ought not to have or maintain his aforesaid
execution thereof against him, which is called the executio non,
as in other cases by actio non. (q. v.) 10 Mod. 112; Yelv. 218.
EXECUTION, contracts. The accomplishment of a thing; as the
execution of a bond and warrant of attorney, which is the
signing, sealing, and delivery of the same.
EXECUTION, crim. law. The putting a convict to death, agreeably
to law, in pursuance of his sentence.
EXECUTION, practice. The act of carrying into effect the final
judgment of a court, or other jurisdiction. The writ which
authorizes the officer so to carry into effect such judgment is
also called an execution.
2. A distinction has been made between an execution which is
used to make the money due on a judgment out of the property of
the defendant, and which is called a final execution; and one
which tends to an end but is not absolutely final, as a capias ad
satisfaciendum, by virtue of which the body of the defendant is
taken, to the intent that the plaintiff shall be satisfied his
debt, &c., the imprisonment not being absolute, but until he
shall satisfy the same; this is called an execution quousque. 6
Co. 87.
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3. Executions are either to recover specific things, or money.
1. Of the first class are the writs of habere facias seisinam.;
(q. v.) habere facias possessionem; (q. v.) retorno habendo;
(q. v.) distringas. (q. v.) 2. Executions for the recovery of
money are those which issue against the body of the defendant, as
the capias ad satisfaciendum, (q. v.); an attachment, (q. v.);
those which issue against his goods and chattels; namely, the
fieri facias, (q. v.); the, venditioni exponas, (q. v.); those
which issue against his lands, the levari facias; (q. v.) the
liberari facias; the elegit. (q. v.) Vide 10 Vin. Ab. 541; 1
Ves. jr. 430; 1 Sell. Pr. 512; Bac. Ab. h. t.; Com. Dig. h.
t.; the various Digests, h. t.; Tidd's Pr. Index, h. t.; 3
Bouv. Inst. n. 3365, et seq. Courts will at any time grant leave
to amend an execution so as to make it conformable to the
judgment on which it was issued. 1 Serg. & R. 98. A writ of error
lies on an award of execution. 5 Rep. 32, a; 1 Rawle, Rep. 47,
48; Writ of Bxecution;
EXECUTION PAREE. By the term execution paree, which is used in
Louisiana, is meant a right founded on an authentic act; that
is, and passed before a notary, by which the creditor may
immediately, without citation or summons, seize and cause to be
sold, the property of his debtor, out of the proceeds of which to
receive his payment. It imports a confession of judgment, and is
not unlike a warrant of attorney. Code of Pr. of Lo. art. 732; 6
Toull. n. 208; 7 Toull. 99.
EXECUTIONER. The name given to him who puts criminals to death,
according to their sentence; a hangman.
2. In the United States, executions are so rare that there are
no executioners by profession. It is the duty of the sheriff or
marshal to perform this office, or to procure a deputy to do it
for him.
EXECUTIVE, government. That power in the government which
causes the laws to be executed and obeyed: it is usually.
confided to the hands of the chief magistrate; the president of
the United States is invested with this authority under the
national government; and the governor of each state has the
executive power in his hands.
2. The officer in whom is vested the executive power is also
called the executive.
3. The Constitution of the United States directs that "the
executive power shall be vested in a president of the United
States of America." Art. 2, s. 1. Vide Story, Const. B. 3, c. 36.
EXECUTOR, trusts. The word executor, taken in its largest
sense, has several accep tations. 1. Executor dativus, who is one
called an administrator to an intestate. 2. Executor
testamentarius, or one appointed to the office by the last will
of a testator, and this is what is usually meant by the term.
2. In the civil law, the person who is appointed to perform the
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duties of an executor as to goods, is called haeres
testamentarius; the term executor, it is said, is a barbarism
unknown to that law. 3 Atk. 304.
3. An executor, as the term is at present accepted, is the
person to whom the execution of a last will and testament of
personal estate is , by the testator's appointment, confided, and
who has accepted of the same. 2 Bl. Com. 503; 2 P. Wms. 548;
Toller, 30; 1 Will. on Ex. 112 Swinh. t. 4, s. 2, pl. 2.
4. Generally speaking, all persons who are capable of making
wills may be executors, and some others beside, as infants and
married women. 2 Bl. Corn. 503.
5. An executor is absolute or qualified; his appointment is
absolute when he is constituted certainly, immediately, and
without restriction in regard to the testator's effects, or
limitation in point of time. It may be qualified by limitation as
to the time or place wherein, or the subject matters whereon, the
office is to be exercised; or the creation of the office may be
conditional. It may be qualified. 1st. By limitations in point of
time, for the time may be limited when the person appointed shall
begin, or when he shall cease to be executor; as if a man be
appointed executor upon the marriage of testator's daughter.
Swinb. p. 4, s. 17, pl. 4. 2. The appointment may be limited to a
place; as, if one be appointed executor of all the testator's
goods in the state of Pennsylvania. 3. The power of the executor
may be limited as to the subject matter upon which if is to be
exercised; as, when a testator appoints. A the executor of his
goods and chattels in possession; B, of his choses in action.
One may be appointed executor of one thing, only, as of a
particular claim or debt due by bond, and the like. Off. Ex. 29;
3 Phillim. 424. But although a testator may thus appoint separate
executors of distinct parts of his property, and may divide their
authority, yet quoad the creditors of the testator they are all
executors, and act as one executor, and may be sued as one
executor. Cro. Car. 293. 4. The appointment may be conditional,
and the condition may be either precedent or subsequent. Godolph.
Orph. Leg. pt. 2, c. 2, s. 1; Off. Ex. 23. 6. An executor
derives his interest in the estate of the deceased entirely from
the will, and it vests in him from the moment of the testator's
death. 1 Will. Ex. 159; Com. Dig. Administration, B 10; 5 B. &
A. 745; 2 W. Bl. Rep. 692. He acquires an absolute legal title
to the personalty by appointment, but nothing in the lands of the
testator, except by devise. He can touch nothing which was not
personal at the testator's decease, except by express direction.
9 Serg. & Rawle, 431; Gord. Law Dec. 93. Still his interest in
the goods of the deceased is not that absolute, proper and
ordinary interest, which every one has in his own proper goods.
He is a mere trustee to apply the goods for such purposes as are
sanctioned by law. 4 T. R. 645; 9 Co. 88; 2 Inst. 236; Off.
Ex. 192. He represents the testator, and therefore may sue and
recover all the claims he had at the time of his death and may be
sued for all debts due by him. 1 Will. Ex. 508, et seq. By the
common law, however, such debts as were not due by some writing
could not be recovered against the executors of a deceased
debtor. The remedy was only in conscience or by a quo minus in
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the exchequer. Afterwards an action on the case in banco regis
was given. Crom t. Jurisdic. 66, b; Plowd. Com. 183: 11 H. VII.
26.
7. The following are the principal duties of an executor: 1.
Within a convenient time after the testator's death, to collect
the goods of the deceased, provided he can do so peaceably; when
he is resisted, he must apply to the law for redress.
8. - 2. To bury the deceased in a manner suitable to the estate
he leaves behind him; and when there is just reason to believe
he died insolvent, he is not warranted in expending more in
funeral expenses (q. v.) than is absolutely necessary. 2 Will.
Ex. 636; 1 Salk. 296; 11 Serg. & Rawle, 204 14 Serg. & Rawle,
64.
9. - 3. The executor should prove the will in the proper
office.
10. - 4. He should make an inventory (q. v.) of the goods of the
intestate, which should be filed in the office.
11. - 5. He should ascertain the debts and credits of the
estate, and endeavor to collect all claims with as little delay
as possible, consistently with the interest of the estate.
12. - 6. He should advertise for debts and credits: see forms of
advertisements, 1 Chit. Pr. 521.
13. - 7. He should reduce the whole of the goods, not
specifically bequeathed into money, with all due expedition.
14.-8. Keep the money of the estate safely, but not mixed with
his own, or he may be charged interest on it.
15.-9. Be at all times ready to account, and actually file an
account within a year.
16. - 10. Pay the debts and legacies in the order required by
law.
17. Co-executors, however numerous, are considered, in law, as
an individual person, and; consequently, the acts of any one of
them, in respect of the administration of the assets, are deemed,
generally, the acts of all. Bac. Ab. Executor, D; Touch. 484;
for they have all a joint and entire authority over the whole
property Off. Ex. 213; 1 Rolle's Ab. 924; Com. Dig.
Administration, B 12. On the death of one or more of several
joint executors, their rights and powers survive to the
survivors.
18. When there are several executors and all die, the power is
in common transferred to the executor of the last surviving
executor, so that he is executor of the first testator; and the
law is the same when a sole executor dies leaving an executor,
the rights are vested in the latter. This rule has been changed,
in Pennsylvania, and, perhaps, some other states, by legislative
provision; there, in such case, administration cum testamento
annexo must be obtained, the right does not survive to the
executor of the executor. Act of Pennsylvania, of March 15 1832.
s. 19. In general, executors are not responsible for each other,
and they have a right to settle separate accounts. See Joint,
Executors.
19. Executors may be classed into general and special;
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instituted and substituted; rightful and executor de son tort;
and executor to the tenor.
20. A general executor is one who is appointed to administer
the whole estate, without any limit of time or place, or of the
subject-matter.
21. A special executor is one. who is appointed or constituted
to administer either a part of the estate, or the whole for a
limited time, or only in a particular place.
22. An instituted executor is one who is appointed by the
testator without any condition, and who has the first right of
acting when there are substituted executors. An example will show
the difference between an instituted and substituted executor:
suppose a man makes his son his executor, but if he will not act,
he appoints his brother, and if neither will act, his cousin;
here the son is the instituted executor, in the first degree, the
brother is said to be substituted in the second degree, and the
cousin in the third degree, and so on. See Heir, instituted, and
Swinb. pt. 4, s. 19, pl. 1.
23. A substituted executor is a person appointed executor, if
another person who has been appointed refuses to act.
24. A rightful executor is one lawfully appointed by the
testator, by his will. Deriving his authority from the will, he
may do most acts, before he obtains letters testamentary, but he
must be possessed of them before. he can declare in action
brought by him, as such. 1 P. Wms. 768; Will. on Ex. 173.
25. An executor de son tort, or of his own wrong, is one, who,
without lawful authority, undertakes to act. as executor of a
person deceased. To make fin executor de son tort, the act of the
party must be, 1. Unlawful. 2. By asserting ownership, as taking
goods or cancelling a bond, and not committing a mere, trespass.
Dyer, 105, 166; Cro. Eliz. 114. 3. An act done before probate of
will, or granting letters of administration. 1 Salk. 313. One may
be executor de son tort when acting under a forged will, which
has been set aside. 3 T. R. 125 . An executor de son tort. The
law on this head seems to have been borrowed from the civil law
doctrine of pro hoerede gestio. See Heinnec. Antiq. Syntagma,
lib. 2, tit., 17, §16, p. 468. He is, in general, held
responsible for all his acts, when he does anything which might
prejudice the estate, and receives no, advantage whatever in
consequence of his assuming the office. He cannot sue a debtor of
the estate, but may be sued generally as executor. See a good
reading on the liabilities of executors de son tort, in: Godolph.
Orph. Legacy, 91, 93, and 10 Wentw. Pl. 378, for forms of
declaring; also, 5 Co. Rep. 50 31 a; Yelv. 137; 1 Brownlow,
103; Salk. 28; Ham. Parties, 273; Imp. Mod. Pl. 94. As to what
acts will make a person liable as executor de son tort, see
Godolph. O ubi sup.; Gord. Law of Dec. 87, 89; Off. Ex. 181;
Bac. Ab. Executor, &c., B 3; 11 Vin. Ab. 215; 1 Dane's Ab. 561;
Bull. N. P. 48; Com. Dig. Administration C 3 Ham. on Part. 146
to 156; 8 John. R. 426; 7 John. R. 161; 4 Mass. 654; 3 Penna.
R. 129; 15 Serg. & Rawle, 39.
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26. - 2. The ussurpation of an office or character cannot
confer the rights and privileges of it, although it may charge
the usurper with the duties and obligations annexed to it. On
this principle an executor de son tort is an executor only for
the purpose of being sued, not for the purpose, of suing. In
point of form, he is sued as if he were a rightful executor. He
is not denominated in the declaration executor (de son tort) of
his own wrong. It would be improper to allege that the deceased
person with whose estate he has intermeddled died intestate. Nor
can he be made a co-defendant with a rightful executor. Ham.
Part. 146, 272, 273; Lawes on Plead. 190, note; Com. Dig.
Abatement, F 10. If he take out letters of administration, he is
still liable to be sued as executor, and in general, it is better
to sue him as executor than as administrator. Godolph. 0. Leg.
93, 94, 95, §§2, 3.
27. An executor to the tenor. This phrase is ased in the
ecclesiastical law, to denote a person who is not directly
appointed by the will an executor, but who is charged with the
duties which appertain to one; as, "I appoint A B to discharge
all lawful demands against my will." 3 Phill. 116; 1 Eccl. Rep.
374; Swinb. 247 Wentw. Ex. part 4, s. 41 p. 230. Vide.
generally, Bouv. Inst. Index, h. t.; 11 Vin. Ab. h. t.; Bac.
Ab. h. t.; Rolle, Ab. h. t.; Nelson's Ab. h. t.; Dane's Ab.
Index, h. t.; Com. Dig. Administration; 1 Supp. to Ves. jr. 8,
90, 356, 438; 2 Id. 69; 1 Vern. 302-3; Yelv. 84 a; 1 Salk.
318; 18 Engl. C. L. Rep. 185; 10 East, 295; 2 Phil. Ev. 289;
1 Rop. Leg.' 114; American Digests, h. t.; Swinburne, Williams,
Lovelass, and Roberts' several treatises on the law of Executors;
Off. Ex. per totum; Chit. Pr. Index; h. t. For the various
pleas that may be pleaded by executors, see 7 Wentw. Plead. 596,
602; 10 Id. 378; Cowp. 292. For the origin and progress of the
law in relation to executors, the reader is referred to 5 Toull.
n. 576, note; Glossaire du Droit Francais, par Delauriere, verbo
Executeurs Testamentaires, and the same author on art. 297, of
the Custom of Paris; Poth. Des Donations Testamen taires.
EXECUTORY. Whatever may be executed; as an executory sentence
or judgment, an executory contract.
EXECUTORY DEVISE, estates. An executory devise is a limitation
by will of a future contingent interest in lands, contrary to the
rules of limitation of contingent estate is in conveyances at
law. When the limitation by will does not depart from those rules
prescribed for the government of contingent remainders, it is, in
that case, a contingent remainder, and not an executory devise. 4
Kent, Com. 257; 1 Eden's R. 27; 8 T. R. 763.
2. An executory devise differs from a contingent remainder, in
three material points. 1. It needs no particular estate to
precede and support it; for example, a devise to A B, upon his
marriage. 2. A fee may be limited after a fee, as in the case of
a devise of land to C D, in fee, and if he dies without issue, or
before the age of twenty-one, then to E F, in fee. 3. A term for
years may be limited over after a life estate created in the
same. 2 Bl. Com. 172, 173.
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3. To prevent perpetuities, a rule has been adopted that the
contingency must happen during the time of a life or lives in
being and twenty-one years after, and the months allowed for
gestation in order to reach beyond the minority of a person not
in esse at the time of making the executory devise. 3 P. Wms.
258; 7 T. R. 100; 2 Bl. Com. 174; 7 Cranch, 456; 1 Gilm. 194;
2 Hayw. 375.
4. There are several kinds of executory devises; two relative
to real estate, and one in relation to personal estate.
5. - 1. When the devisor parts with his whole estate, but upon
some contingency, qualifies the disposition of it, and limits an
estate on that contingency. For example, when the testator
devises to Peter for life, remainder to Paul, in fee, provided
that if James should within three months after the death of Peter
pay one hundred dollars to Paul, then to James in fee; this is
an executory devise to James, and if he dies during the life of
Peter, his heir may perform the condition. 10 Mod. 419; Prec. in
Ch. 486; 2 Binn. 532; 5 Binn. 252; 7 Cranch, 456; 6 Munf.
187; 1 Desaus. 137, 183; 4 Id. 340, 459; 5 Day, 517.
6. - 2. When the testator gives a future interest to arise upon
a contingency, but does not part with the fee in the meantime;
as in the case of a devise of the estate to the heirs of John
after the death of John; or a devise to John in fee, to take
effect six months after the testator's death; or a devise to the
daughter of John, who shall marry Robert within fifteen, years.
T. Raym. 82; 1 Salk. 226; 1 Lutw. 798.
7. - 3. The executory bequest of a chattel interest is good,
even though the ulterior legatee be not at the time in esse, and
chattels so limited are protected from the demands of creditors
beyond the life of the first taker, who cannot pledge them, nor
dispose of them beyond his own life interest in them. 2 Kent,
Com. 285; 2 Serg. & Rawle, 59; l Desaus 271; 4 Desaus.340; 1
Bay, 78. But such a bequest, after an indefinite failure of
issue, is bad. See 2 Serg. & R. 62; Watk. Prin. Con. 112, 116;
Harg. note, 1 Tho. Co. Litt. 595-6, 515-16. Vide, Com. Dig.
Estates by Devise., N 16; Fearne on Rem. 381; Cruise's Dig.
Index, h. t.; 4 Kent, Com. 357 to 381; 2 Hill. Ab. c. 43, p.
533.
EXECUTORY PROCESS, via executoria. In Louisiana, this is a
process which can be resorted to only in two. cases, namely: 1.
When the creditor's right arises-from an act importing a
confession of judgment, and which contains a privilege or
mortgage in his favor. 2. When the creditor demands the execution
of a judgment which has been rendered by a tribunal different
from that within whose jurisdiction the execution is sought. Code
of Practice, art. 732.
EXECUTORY TRUST. A trust is said to be executory where some
further act is requisite to be done by the author of the trust
himself or by the trustees, to give it its full, effect; as, in
the case of marriage articles; or, as in the case of a will,
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where, property is vested in trustees in trust to settle or
convey.; for, it is apparent in both of these cases, a further
act, namely, a settlement or a conveyance, is contemplated.
2. The difference between an executed and an executory trust,
is this, that courts of equity in cases of executed trusts will
construe the limitations in the same manner as similar legal
limit-ations. White's L. C. in Eq. 18. But, in cases of executory
trusts, a court of equity is not, as in the case of executed
trusts, bound to construe technical expressions with legal
strictness, but will mould the trusts according to the intent of
the creator of such trusts White's L. C. Eq. 18.
3. When a voluntary trust is executory, and not executed, if it
could not be enforced at law, because it is a defective
conveyance, it is not helped in equity, in favor of a volunteer.
4 John. Ch. 498, 500; 4 Paige, 305; 1 Dev. Eq. R. 93.
4. But where the trust, though voluntary, has been executed in
part, it will be sustained or enforced, in equity. 1 John. Ch. R.
329; 7 Penn. St. R. 175, 178; White's L. C. in Eq. *176; 18
Ves. 140; 1 Keen's R. 551; 6 Ves. 656; 3 Beav. 238.
EXECUTRIX, A woman who has been appointed by. will to execute
such will or testament. See Executor.
EXEMPLIFICATION, evidence. A perfect copy of a record, or
office book lawfull kept, so far as relates to the matter in
question. 3 Bouv. Inst. n. 3107. Vide, generally, 1 Stark. Ev.
151; 1 Phil. Ev. 307; 7 Cranch, 481; 3 Wheat. 234; 10 Wheat.
469; 9 Cranch, 122; 2 Yeates, 532; 1 Hayw. 359; 1 John. Cas.
238. As to the mode of authenticating records of other states,
see articles Authentication, and Evidence.
EXEMPTION. A privilege which dispenses with the general rule;
for example, in Pennsylvania, and perhaps in all the other
staies, clergymen are exempt from serving on juries. Exemptions
are generally allowed, not for the benefit of the individual, but
for some public advantage.
EXEMPTS. Persons who are not bound by law, but excused from the
performance of duties imposed upon others.
2. By the Act of Congress of May 8, 1792, 1 Story, L. U. S.
252, it is provided, §2. That the vice-president of the United
States the officers, judicial and executive, of the government of
the United States; the members of both houses of congress, and
their respective officers; all custom-house officers, with their
clerks; all post officers, and stage drivers, who are employed
in the care and conveyance of the mail of the post office of the
United States; all ferrymen employed at any ferry on the post
road; all inspectors of exports; all pilots; all mariners,
actually employed in the sea service of any citizen or merchant
within the United States; and all persons who now are, or may
hereafter be, exempted by the laws of the respective states,
Shall be, and are hereby, exempted from militia duty,
notwithstanding their being above the age of eighteen, and under
the age of forty-five years.
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EXEQUATUR, French law. This Latin word was, in the ancient
practice, placed at the bottom of a judgment emanating from
another tribunal, and was a permission and authority to the
officer to execute it within the jurisdiction of the judge who
put it below the judgment.
2. We have something of the same kind in our practice. When a
warrant for the arrest of a criminal is issued by a justice of
the peace of one county, and he flies into another, a justice of
the latter county may endorse the warrant and then the
ministerial officer may execute it in such county. This is called
backing a warrant.
EXEQUATUR, internat. law. A declaration made by the executive
of a government near to which a consul has been nominated and
appointed , after such nomination and appointment has been
notified, addressed to the people, in which is recited the
appointment of the foreign state, and that the executive having
approved of the consul as such, commands all the citizens to
receive, countenance, and, as there may be occasion, favorably
assist the consul in the exercise of his place, giving and
allowing him all the privileges, immunities, and advantages,
thereto belonging. 3 Chit. Com. Law, 56; 3 Maule & Selw. 290; 5
Pardes. 1445.
EXERCITOR. A term in the civil law, to denote the person who
fits out, and equips a vessel, whether he be the absolute or
qualified owner, or even a mere agent. Emer. on Mar. Loans, c. 1,
s. 1.
2. In English, we generally use the word "ship's hushand," but
exercitor is generally used to designate and distinguish from
among several part owners of a ship, the one who has the
immediate care an management of her. Hall on Mar. Loans 142, n.
See Dig. 19, 2, 19, 7; Id. 14, 1 1, 15; Vicat, Vocab.; Ship's
hushand.
EXHEREDATION, civil law. The act by which a forced heir is
deprived of his legitimate or legal portion which the law gives
him; disinherison. (q. v.)
EXHIBIT, practice. Where a paper or other writing is on motion,
or on other occasion, proved; or if an affidavit to which the
paper writing is annexed, refer to it, it is usual to mark the
same with a capital letter, and to add, " This paper writing
marked with the letter A, was shown to the deponent at the time
of his being sworn by me, and is the writing by him referred to
in the affidavit annexed hereto." Such paper or other writing,
with this attestation, signed by the judge or other person before
whom the affidavit shall have been sworn, is called an exhibit.
Vide Stra. 674; 2 P. Wms. 410; Gresl. Eq. Ev. 98.
TO EXHIBIT. To produce a thing publicly, so that it may be
taken possession of, or seized. Dig. 10, 4, 2. To exhibit means
also to file of record; as, it is the practice in England in
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personal actions, when an officer or prisoner of the king's bench
is defendant, to proceed against such defendant in the court in
which he is an officer, by exhibiting, that is, filing a bill
against him. Stepb. P.I. 52, n. (1); 2 Sell. Pr. 74. In medical
language, to. exhibit signifies to ad minist er, to cause a thing
to be taken by a patient. Chit. bled. Jur. 9.
EXHIBlTANT. One who exhibits any thing; one who is complainant
in articles of the peace. 12 Adol. & Ellis, 599 40 E. C. L. R.
124.
EXHIBITION, Scotch law. An action for compelling the production
of writings. In Pennsylvania, a party possessing writings is
compelled, to produce them on proper notice being given, in
default of which judgment is rendered against him.
EXIGENT, or EXIGI FACIAS, practice. A writ issued in the course
of proceedings to out lawry, deriving its name and application
from the mandatory words found therein, signifying, "that you
cause to be exacted or required; and it is that proceeding in an
outlawry which, with the writ of proclamation, issued at the same
time, immediately precedes the writ of capias utlagatum. 2 Virg.
Cas. 244.
EXIGIBLE. That which may be exacted demandable; requirable.
EXILE, civil law. The: interdiction of all places except one in
which the party is foreed to make his residence.
2. This punishment did not deprive the sufferer of his right of
citizenship or of his property, unless the exile were perpetual,
in which case confiscation not unfrequently was a part of the
sentence. Exile was temporary or perpetual. Dig. 48, 22, 4;
Code, 10, 59, 2. Exile differs from deportation, (q. v.) and
relegation. (q. v.) Vide, 2 Lev. 191; Co. Litt. 133, a.
EXILIUM. By this term is understood that kind of waste which
either drove away the inhabitants into a species of exile, or had
a tendency to do so; as the prostrating or extirpating of trees
in an orchard or avenue, or about any house. Bac. Ab. Waste, A;
Bract. lib. 4, c. 18, s. 13; 1 Reeves' Hist. Law, 386.
EXITUS. Issue,, child, or offspring; rents or profits of land.
Cowell, h. v. In pleading, it is the issue, or the end,
terminaion, or conclusion of the pleadings, and is so called,
because an issue brings the pleadngs to a close. 3 Bl. Com. 314.
EXIGENDARY, Eng. law. An officerwho makes out exigents.
EXOINE, French law. An act or instrument in writing, which
contains the reasons why a party in a civil suit, or a person
accused, who has been summoned, agreeably to the requisitions of
a decree, does not appear. Poth. Proced. Crim. s. 3, art. 3.
Vide Essoin.
EXONERATION. The taking off a burden or duty.
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2. It is a rule in the distribution of an intestate's estate
that the debts which he himself contracted, and for which be
mortgaged his land as security, shall be paid out of the personal
estate in exoneration of the real.
3. But when the real estate is charged with the payment of a
mortgage at the time the intestate buys it, and the purchase is
made subject to it, the personal. is not in that case to be
applied, in exoneration of the real estate. 2 Pow. Mortg. 780; 5
Hayw. 57; 3 Johns. Ch. R. 229.
4. But the rule for exonerating the real estate out of the
personal, does not apply against specific or pecuniary legatees,
nor the widow's right to paraphernalia, and with reason not
against the interest of creditors. 2 Ves. jr. 64; 1 P. Wms. 693;
Id. 729; 2 Id. 120,335; 3 Id. 367. Vide Pow. Mortg. Index, h.
t.
EXONERATUR, practice. A short note entered on a bail piece,
that the bail is exonerated or discharged in consequence of
having fulfilled the condition of his obligation, made by order
of the court or of a judge upon a proper cause being shown.
2. A surrender is the most usual cause; but an exoneratur may
be entered in other cases, as in case of death of the defendant,
or his bankruptcy. 1 Arch. Pr. 280, 281, 282; Tidd's Pr. 240.
EXPATRIATION. The voluntary act of abandoning one's country and
becoming the citizen or subject of another.
2. Citizens of the United States have the right to expatriate
themselves until restrained by congress; but it seems that a
citizen cannot renounce his allegiance to the United States
without the permission of government, to be declared by law. To
be legal, the expatriation must be for a purpose which is not
unlawful, nor in fraud of the duties of the emigrant at home.
3. A citizen may acquire in a foreign country commercial
privileges attached to his domicil, and be exempted from the
operation of commercial acts embracing only persons resident in
the United States or under its protection. 2 Cranch, 120. Vide
Serg. Const. Law, 318, 2d ed; 2 Kent, Com. 36; Grotius, B. 2,
c. 5, s. 24; Puffend. B. 8, c. 11, s. 2, 3 Vattel, B. 1, c. 19,
s. 218, 223, 224, 225 Wyckf. tom. i. 117, 119; 3 Dall. 133; 7
Wheat. 342; 1 Pet. C. C. R. 161; 4 Hall's Law Journ. 461;
Bracken. Law Misc. 409; 9 Mass. R. 461. For the doctrine of the
English courts on this subject, see 1 Barton's Elem.
Conveyancing, 31, note; Vaugh, Rep. 227, 281, 282, 291; 7 Co.
Rep. 16 Dyer, 2, 224, 298 b, 300 b; 2 P. Wms. 124; 1 Hale, P.
C. 68; 1 Wood. 382.
EXPECTANCY, estates. Having a relation to or dependence upon
something future.
2. Estates are of two sorts, either in possession, sometimes
called estates executed; or in expectancy, which are executory.
Expectancies are, first, created by the parties, called a
remainder; or by act of law, called a reversion.
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3. A bargain in relation to an expectancy is, in general,
considered invalid. 2 Ves. 157; Sel. Cas. in Ch. 8; 1 Bro. C.
C. 10; Jer. Eq. Jur. 397.
EXPECTANT. Having relation to, or depending upon something;
this word is frequently used in connexion with fee, as fee
expectant.
EXPECTATION. That which may be expected, although contingent.
In the doctrine of life annuities, that share or number of the
years of human life which a person of a given age may expect to
live, upon an equality of chances.
2. In general, the heir apparent will be relieved from a
contract made in relation to his expectancy. See Post Obit.
EXPENSAE LITIS. Expenses of the suit; the costs which are
generally allowed
to the successful party.
EXPERTS. From the Latin experti,which signifies, instructed by
experience. Persons who are selected by the courts or the parties
in a cause on account of their knowledge or skill, to examine,
estimate, and ascertain things, and make a report of their
opinions. Merl. Repert. mot Expert; 2 Lois des Batimens, 253; 2
N. S. 1 5 N.. S. 557; 3 L. R. 350; 11 L. R. 314 11 S. & R. 336;
Ray. Med. Jur. Prel. Views, §29; 3 Bouv. Inst. n. 3208.
EXPILATION, civil law. The crime of abstracting the goods of a
succession.
2. This is said not to be a theft, because the property no
longer belongs to the deceased, nor to the heir before he has
taken possession. In the common law, the grant of letters
testamentary, or letters of administration, relate back to the
time of the death of the testator or intestate, so that the
property of the estate is vested in the executor or administrator
from that period.
EXPIRATION. Cessation; end. As, the expiration of, a lease, of
a contract, or statute.
2. In general, the expiration of a contract puts an end to all
the engagements of the parties, except to those which arise from
the non-fulfilinent of obligations created during its existence.
For example, the expiration of a partnership so dissolves it,
that the parties cannot in general create any new liability, but
it still subsists, to enable the parties to fulfil engagements in
which the partners have engaged, or to compel others to perform
their obligations towards them. See Dissolution; Contracts.
3. When a statute is limited as to time, it expires by mere
lapse of time, and then it has no force whatever; and, if such a
statute repealed or supplied a former statute, the first statute
is, i so facto, revived by the expiration of the repealing
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statute; 6 Whart. 294; 1 Bland, R. 664 unless it appear that
such was not the intention of the legislature. 3 East, 212 Bac.
Ab. Statute, D.
EXPORTATION, commercial law. The act of sending goods and
merchandise from one country to another. 2 Mann. & Gran. 155; 3
Mann. & Gran. 959.
2. In order to preserve equality among the states, in their
commercial relations, the constitution provides that " no tax or
duty shall be laid on articles exported from any state." Art. 1,
s. 9. And to prevent a pernicipus interference with the commerce
of the nation, the 10th section of the 1st article of the
constitution contains the following prohibition: " No state
shall, without the consent of congress, lay any imposts or duties
on imports or exports, except what may be absolutely necessary
for executing its inspection laws; and the net produce of all
duties and imposts, laid by any state on imports or exports,
shall be for the use of the treasury of the United States; and
all such laws shall be subject to the revision and control of the
congress." Vide 12 Wheat. 419; and the article Importation.
EXPOSE' A French word, sometimes applied to a written document,
containing the reasons or motives for doing a thing. The word
occurs in diplomacy.
EXPOSITION DE PART, French law. The abandonment of a child,
unable to take care of itself, either in a public or private
place.
2. If the child thus exposed should be killed in consequence of
such exposure; as, if it should be devoured by animals, the
person thus exposing it would be guilty of murder. Rose. Cr. Ev.
591.
EXPRESS. That which is made known, and not left to implication.
The opposite of implied. It is a rule, that when a matter or
thing is expressed, it ceases to be implied by law: expressum
facit cessare tacitum. Co. Litt. 183; 1 Bouv. Inst. n. 97.
EXPRESSION. The term or use of language employed to explain a
thing.
2. It is a general rule, that expressions shall be construed,
when they are capable of several significations, so as to give
operation to the agreement, act, or will, if it can be done; and
an expression is always to be understood in the sense most
agreeable to the nature of the contract. Vide Clause;
Construction; Equivocal; Interpretation; Words.
EXPROMISSION, civil law. The act by which a creditor accepts a
new debtor, who becomes bound instead of the old, the latter
being released. It is a species of novation. (q. v.) 1 Bouv.
Inst. n. 802. Vide Delegation.
EXPROMMISSOR, civil law. By this term is understood the person
who alone becomes bound for the debt of another, whether the
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latter were obligated or not. He differs from a surety, who is
bound together with his principal. Dig. 12, 4, 4; Dig. 16, 1,
13; Id. 24, 3, 64, 4; Id. 38, 1, 37, 8.
EXPULSION. The act of depriving a member of a body politic,
corporate, or of a society, of his right of membership therein,
by the vote of such body or society, for some violation of hi's.
duties as such, or for some offence which renders him unworthy of
longer remaining a member of the same.
2. By the Constitution of the United States, art. 1, s. 5, §2,
each house may determine the rules of its proceedings, punish its
members for disorderly behaviour, and, with the concurrence of
two-thirds' expel a member. In the case of John Smith, a senator
from Ohio, who was expelled from the senate in 1807, the
committee made a report which embraces the following points:
3. - 1. That the senate may expel a member for a high
misdemeanor, such as a conspiracy to commit treason. Its
authority is not confined to an act done in its presence.
4. - 2. That a previous conviction is, not requisite, in order
to authorize the senate to expel a member from their body, for a
high: offence against the United States.
5. - 3. That although a bill of indictment against a party for
treason and misdemeanor has been abandoned, because a previous
indictment against the principal party had terminated in an
acquittal, owing to the inadmissibility of the evidence upon that
indictment, yet the senate may examine the evidence for
themselves, and if it be sufficient to satisfy their. minds that
the party is guilty of a high misdemeanor it is a sufficient
ground of expulsion.
6. - 4. That the 6th and 6th articles of the amendments of the
Constitution of the United States, containing the general rights
and privileges of the citizen, as to criminal prosecutions, refer
only to prosecutions at law, and do not affect the jurisdiction
of the senate as to expulsion.
7. - 5. That before a committee of the senate, appointed to
report an opinion relative to the honor and privileges of the
senate, and the facts respecting the conduct of the member
implicated, such member is not entitied to be heard in his
defence by counsel, to have compulsory process for witnesses, and
to be confronted with his accusers. It is before the senate that
the member charged is entitled to be heard.
8. - 6. - In determining on expulsion, the senate is not bound
by the forms of judicial proceedings, or the rules of judicial
evidence; nor, it seems, is the same degree of proof essential
which is required to convict of a crime. The power of expulsion
must, in its nature, be discretionary, and its exercise of a more
summary character. 1 Hall's Law Journ. 459, 465.
9. Corporations have the right of expulsion in certain cases,
as such power is necessary to the good order and government of
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corporate bodies; and the cases in which the inherent power may
be exercised are of three kinds. 1. When an offence is committed
which has no immediate relation to a member's corporate duty, but
is of so infamous a nature as renders him unfit for the, society
of honest men; such as the offences of perjury, forgery, and the
like. But before an expulsion is made for a cause of this kind,
it is necessary that there should be a previous conviction by a
jury, according to the law of the land. 2. When the offence is
against his duty as a corporator, in which case he may be
expelled on trial and conviction before the corporation. 3. The
third is of a mixed nature, against the member's duty. as a
corporator, and also indictable by the law of the land. 2
Binn.448. See, also, 2 Burr., 536.
10. Members of what are called joint stock incorporated
companies, or indeed members of any corporation owning property,
cannot, without express authority in the charter, be expelled,
and thus deprived of their interest in the general fund. Ang. &
Ames on Corp. 238. See; generally, Ang. & Ames on Corp. ch. 11;
Willcock, on Mun. Cor . 270; 1 Co. 99; 2 Bing. 293.; 5 Day
329; Sty. 478; 6 Conn. R. 532; 6 Serg. & Rawle, 469; 5 Binn.
486.
EXTENSION, comm. law. This term is applied among merchants to
signify an agreement made between a debtor and his creditors, by
which the latter, in order to enable the former, embarrassed in
his circumstances, to retrieve his standing, agree to wait for a
definite length of time after their several claims should become
due and payable, before they will demand payment.
2. Among the French, a similar agreement is known by the name
of atermoiement. Merl. Rep. mot Atermoiement.
EXTENT IN AID, English practice. An exchequer process, formerly
much used, and now liable to be abused; it is regulated by 57
Geo. III. o. 117.
EXTENT IN CHIEF, English practice. An execution issuing out of
the exchequer at the suit 'of the crown. It is a mere "fiscal
writ. See. West on Extents; 2 Tidd. Index.
2. When land was extended at a valuation too low, there was no
remedy at common law but to pay the money. 15 H. VII. Nor yet in
chancery, unless there was fraud, because the extent was made by
the oath of a jury, and deemed reasonable according to the writ
of extent for that cause: otherwise every verdict might be
examined in a court of chancery. Crompt. on. Jurisdic. 55 a.
EXTENUATION. That which renders a crime or tort less heinous
than it would be without it: it is opposed to aggravation. (q. v.
)
2. In general, extenuating circumstances go in mitigation of
punishment in criminal cases, or of damages in those of a civil
nature. See Aggravation; Mitigation.
EXTERRITORIALITY. This term is used by French jurists to
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signify the immunity of certain persons, who, although in the
state, are not amenable to its laws; foreign sovereigns,
ambassadors, ministers plenipotentiary, and ministers from a
foreign power, are of this class. Foelix, Droit Intern. Prive,
liv. 2, tit. 2, c. 2, s. 4. See Ambassador; Conflict of Laws;
Minister.
EXTINCTION OF A THING. When a thing which is the subject of a
contract has been destroyed, the contract is of course rescinded
as, for example, if Paul sell his horse Napoleon to Peter, and
promises to deliver him to the buyer in ten days, and in the mean
time the horse dies, the contract is rescinded, as it is
impossible to deliver a thing which is not in esse; but if Paul
engage to deliver a horse to Peter in ten days, and, for the
purpose of fulfilling his contract, he buys a horse and it die,
this is no cause for rescinding the contract, because he can buy
another and complete it afterwards. When the subject of the
contract is an individual, and not generally one of a species,
the contract may be rescinded; when it is one of a species which
has been destroyed, then, it may still be completed, and it will
be enforced. Lec. El. Dr. Rom. §1009.
EXTINGUISHMENT, contracts. The destruction of a right or
contract - the act by which a contract is made void.
2. Art extinguishment may be by matter of fact and by matter of
law. 1. It is by matter of fact either express, as when one
receives satisfaction and full payment of a debt, and the
creditor releases the debtor 11 John. 513'; or implied, as when
a person hath a yearly rent out of, lands and becomes owner
either by descent or purchase, of the estate subject to the
payment of the rent, the latter is extinguished 3 Stew. 60; but
the person must have as high an estate in the land as in the
rent, or the rent will not be extinct. Co. Litt. 147. See Merger.
3. There are numerous cases where the claim is extinguished b
operation of law; for example, where two persons are jointly,
but not severally liable, for a simple contract debt, a judgment
obtained against one is at common law an extinguishment of the
claim on the other debtor. Pet. C. C. 301; see 2 John. 213.
Vide, generally, Bouv. Inst. Index, h. t.; 2 Root, 492; 3 Conn.
62; 1 Hamm. 187; 11 John. 513; 4 Conn. 428; 6 Conn. 373; 1
Halst. 190 4 N. H. Rep. 251 Co. Litt. 147 b; 1 Roll. Ab. 933 7
Vin. Ab. 367; 11 Vin. Ab. 461; 18 Vin. Ab. 493 to 515 3 Nels.
Ab. 818; 14 Serg. & Rawle, 209; Bac. Ab. h. t.; 5 Whart. R.
541. Vide Discharge of a Debt.
EXTORSIVELY. A technical word used in indictments for
extortion. In North Carolina, it seems, the crime of extortion
may be charged without using this word. 1 Hayw. R. 406.
EXTORTION, crimes. In a large sense it, signifies any
oppression, under color of right: but in a more strict sense it
means the unlawful taking by any officer, by color of his office,
of any money or thing of value that is not due to him, or more
than is due, or before it is due. 4 Bl. Com. 141; 1 Hawk. P. C.
c. 68, s. 1; 1 Russ. Cr. *144. To constitute extortion, there
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must be the receipt of money or something of value; the taking a
promissory note, which is void, is. not sufficient to make an
extortion. 2 Mass. R. 523; see Bac. Ab. h. t.; Co. Litt. 168.
It is extortion and oppression for an officer to take money for
the performance of his duty, even though it be in the exercise of
a discretionary power. 2 Burr. 927. It differs from exaction. (q.
v.) See 6 Cowen, R. 661; 1 Caines, R. 130; 13 S. & R. 426 1
Yeates, 71; 1 South. 324; 3 Penna. R. 183; 7 Pick. 279; 1
Pick. 171.
EXTRA-DOTAL PROPERTY. In Louisiana this term is used to
designate that property which forms no part of the dowry of a
woman, and which is also called paraphernal property. Civ. Co.
Lo. art. 2315. Vide Dotal Property.
EXTRA VIAM. Out of the way. When, in an action of trespass, the
defendant pleads a right of way, the defendant may reply extra
viam, that the trespass was committed beyond the way, or make a
new assignment. 16 East, 343, 349.
EXTRACT. A part of a writing. In general this is not evidence,
because the whole of the writing may explain the part extracted,
so as to give it a different sense; but sometimes extracts from
public books are evidence, as the extracts from the registers of
births, marriages and burials, kept according to law, when the
whole of the matter has been extracted which relates to the cause
or matter in issue.
EXTRADITION, civil law. The act of sending, by authority of
law, a person accused of a crime to a foreign jurisdiction where
it was committed, in' order that he may be tried there. Merl.
Rep. h. t.
2. By the constitution and laws of the United States, fugitives
from justice (q. v.) may be demanded by the executive of the one
state where the crime has been committed from that of another
where the accused is. Const. United States, art. 4, s. 2, 2 3
Story, Com. Const. U. S. §1801, et seq.
3. The government of the United States is bound by some treaty
stipulation's to surrender criminals who take refuge within the
country, but independently of such conventions, it is
questionable whether criminals can be surrendered. 1 Kent. Com.
36; 4 John. C. R. 106; 1 Amer. Jurist, 297; 10 Serg. & Rawle,
125; 22 Amer. Jur. 330; Story's Confl. of Laws, p. 520; Wheat.
Intern. Law, 111.
4. As to when the extradition or delivery of the supposed
criminal is complete is not very certain. A case occurred in,
France of a Mr. Cassado, a Spaniard, who had taken refuge in
Bayonne. Upon an application made to the French government, he
was delivered to the Spanish consul who had authority to take him
to Spain, and while in the act of removing him with the
assistance of French officers, a creditor obtained an execution
against his person, and made an attempt to execute it and retain
Cassado in France, but the council of state, (conseil d'etat) on
appeal, decided that the courts could not interfere, and directed
Cassado to be delivered to the Spanish authorities. Morrin, Dict.
du Dr. Crim. h.v.
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EXTRAJUDICIAL. That which does not belong to the judge or his
jurisdiction, notwithstanding which he takes. cognizance of it.
Extrajudicial judgments and acts are absolutely void. Vide Coram
non judice, and Merl. Repert. mots Exces de Pouvoir.
EXTRAVAGANTES, canon law. This is the name given to the
constitutions of the popes posterior to the Clementines; they
are thus called quasi vagantes extra corpus juris, to express
that they were out of the canonical law, which at first contained
only the decrees of Gratian; afterwards the decretals of Gregory
IX., the sexte of Boniface. VIII., the Clementines, and at last
the extravagantes were added to it. There are the extravagantes
of John XXII., and the common 'extravagantes.' The first contain
twenty epistles, decretals or constitutions of that pope, divided
under fifteen titles, without any subdivision into books. The
others are epistles, decretals or constitutions of the popes who
occupied the holy see, either before or after John XXII. they are
divided into books like the decretals.
EXTREMIS. When a person is sick beyond the hope of recovery,
and near death, he is said to be in extremism.
2. A will made in this condition, if made without undue
influence, by a person of sound mind, is valid.
3. The declarations of persons in extremis, when made with a
full consciousness of approaching death, ate admissible in
evidence when the death of the person making them is the subject
of the charge, and the circumstances of the death the subject of
such declarations. 2 B. & C. 605 S. C. 9 Eng. C. L. Rep..196;
and see 15 John. 286; 1 John. Rep. 159; 2 John. R. 31; 7
John. 95; 2 Car. Law. Repos. 102; 5 whart, R. 396-7.
EY. A watery place; water. Co. Litt 6.
EYE-WITNESS. One who saw the act or fact to which he testifies.
When an eye-witness testifies, and is a man of intelligence and
integrity, much reliance must be placed on his testimony, for he
has the means of making known the truth.
EYOTT. A small island arising in a river. Fleta, lib. 3, c. 2,
s. b; Bract. lib. 2, c. 2. See lsand.
EYRE. Vide Eire Justiciarii Itinerantes.
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