J-K:
JACTITATION. OF MARRIAGE, Eng. eccl. law. The boasting by an
individual that he or she has married another, from which it may
happen that they will acquire the reputation of being married to
each other.
2. The ecclesiastical courts may in such cases entertain a
libel by the party injured; and, on proof of the facts, enjoin
the wrong-doer to perpetual silence; and, as a punishment, make
him pay the costs. 3 Bl. Com. 93; 2 Hagg. Cons. R. 423 Id. 285;
2 Chit. Pr. 459.
JACTURA. The same as jettison. (q. v.) 1 Bell's Com. 586, 5th
ed.
JAIL. A prison; a place appointed by law for the detention of
prisoners. A jail is an inhabited dwelling-house within the
statute of New York, which makes the malicious burning of an
inhabited dwelling-house to be arson. 8 John. 115; see 4 Call,
109. Vide Gaol; Prison.
JEOFAILE. This is a law French phrase, which signifies, "I am
in an error; I have failed." There are certain statutes called
statutes of amendment and jeofails because, where a pleader
perceives any slip in the form of his proceedings, and
acknowledges the error, (jeofaile,) he is at liberty by those
statutes to amend it. The amendment, however, is seldom made, but
the benefit is attained by the court's overlooking the exception.
3 Bl. Com. 407; 1 Saund. 228, n. 1; Doct. Pl. 287; Dane's Ab.
h. t.
JEOPARDY. Peril, danger. 2. This is the meaning attached to
this word used in the act establishing and regulating the post
office department. The words of the act are, "or if, in effecting
such robbery of the mail the first time, the offender shall wound
the person having the custody thereof, or put his life in
jeopardy by the use of dangerous weapons, such offender shall
suffer death." 3 Story's L. U. S. 1992. Vide Baldw. R. 93-95.
3. The constitution declares that no person shall "for the same
offence, be twice put in jeopardy of life and limb." The meaning
of this is, that the party shall, not be tried a second time for
the same offence after he has once been convicted or acquitted of
the offence charged, by the verdict of a jury, and judgment has
passed thereon for or against him; but it does not mean that he
shall not be tried for the offence, if the jury have been
discharged from necessity or by consent, without giving any
verdict; or, if having given a verdict, judgement has been
arrested upon it, or a new trial has been granted in his favor;
for, in such a case, his life and limb cannot judicially be said
to have been put in jeopardy. 4 Wash. C. C. R. 410; 9 Wheat. R.
579; 6 Serg. & Rawle, 577; 3. Rawle, R. 498; 3 Story on the
Const. §1781. Vide 2 Sumn. R. 19. This great privilege is secured
by the common law. Hawk. P. C., B. 2, 35; 4 Bl. Com. 335.
4. This was the Roman law, from which it has been probably
engrafted upon the common law. Vide Merl. Rep. art. Non bis in
idem. Qui de crimine publico accusationem deductus est, says the
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Code, 9, 2, 9, ab alio super eodem crimine deferri non potest.
Vide article Non bis in idem.
JERGUER, Engl. law. An officer of the custom-house, who
oversees the waiters. Techn. Dict. h. t.
JETTISON, or JETSAM. The casting out of a vessel, from
necessity, a part of the lading; the thing cast out also bears
the same name; it differs from flotsam in this, that in the
latter the goods float, while in the former they sink, and remain
under water; it differ; also from ligan. (q. v.)
2. The jettson must be made for sufficient cause, and not from
groundless timidity. In must be made in a case of extremity, when
the ship is in danger of perishing by the fury of a storm, or is
laboring upon rocks or shallows, or is closely pursued by pirates
or enemies.
3. If the residue of the cargo be saved by such sacrifice, the
property saved is bound to pay a: proportion of, the loss. In
ascertaining such average. loss, the goods lost and saved are
both to be valued at the price they would have brought at the
place of delivery, on the ship's arrival there, freight, duties
and other charges being deducted. Marsh. Ins. 246; 3 Kent, Com.
185 to 187; Park. Ins., 123; Poth. Chartepartie, n. 108, et
suiv; Boulay-Paty, Dr. Com. tit. 13; Pardessus, Dr. Com. n.
734; 1 Ware's R. 9.
JEUX DE BOURSE, French law. This is a kind of gambling or
speculation, which consists of sales and purchase's, which bind
neither of the parties to deliver the things which are the object
of the sale, and which are settled by paying the difference in
the value of the things sold between the day of the sale, and
that appointed for delivery of such things. 1 Pard. Dr. Com. n.
162.
JEWS. See De Judaismo Statutum.
JOB. By this term is understood among workmen, the whole of a
thing which is to be done. In this sense it is employed in the
Civil Code of Louisiana, art. 2727; "to build by plot, or to
work by the job," says that article, "is to undertake a building
for a certain stipulated price." See Durant. du Contr. de Louage,
liv. 8, t. 8, n. 248, 263; Poth. Contr. de Louage, n. 392, 394
and Deviation.
JOBBER, commerce. One who buys end sells articles for others.
Stock jobbers are those who buy, and sell stocks for others;
this term is also applied to those who speculate in stocks on
their own account.
JOCALIA. Jewels; this term was formerly more properly applied
to those ornaments which women, although married, call their own.
When these jocalia are not suitable to her degree, they are
assets for the payment of debts. 1 Roll. Ab. 911. Vide
Paraphernalia.
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JOINDER OF ACTIONS, practice. The putting two or more causes of
action in the same declaration.
2. It is a general rule, that in real actions there can never
be but one count. 8 Co. 86, 87; Bac. Ab. Action, C; Com. Dig.
Action, G. A count in a real, and a count in a mixed action,
cannot be joined in the same declaration; nor a count in a mixed
action, and a count in a personal action; nor a count in a mixed
action with a count in another, as ejectment and trespass.
3. In mixed actions, there may be two counts in the same
declaration; for example, waste lies upon several leases, and
ejectment upon several demises and ousters. 8 Co. 87 b Poph. 24;
Cro. Eliz. 290; Ow. 11. Strictly, however, ejectment at common
law, is a personal action, and a count in trespass for an assault
and battery, may be joined with it; for both sound in trespass,
and the same judgment is applicable to both.
4. In personal actions, the use of several counts in the same
declaration is quite common. Sometimes they are applied to
distinct causes of actions, as upon several promissory notes;
but it more frequently happens that the various counts
introduced, do not really relate to different claims, but are
adopted merely as so many different forms of propounding the same
demand. The joinder in action depends on the form of action,
rather than on the subject-matter of it; in an action against a
carrier, for example, if the plaintiff declare in assumpsit, he
cannot join a count in trover, as he may if he declare against
him in case. 1 T. R. 277 but see 2 Caines' R. 216; 3 East, R.
70. The rule as to joinder is, that when the same plea may be
pleaded, and the same judgment given on all the counts of the
declaration, or when the counts are all of the same nature, and
the same judgment is to be given upon them all, though the pleas
be different, as in the case of debt upon bond and simple
contract, they may be joined. 2 Saund. 117, c. When the same form
of action may be adopted, th may join as many causes of action as
he may choose, though he acquired the rights affected by
different titles; but the rights of the plaintiffs, and the
liabilities of the defendant, must be in his own character, or in
his representative capacity, exclusively. A, plaintiff cannot
sue, therefore, for a cause of, action in his own right, and
another cause in his character as executor, and join them; nor
can he sue the defendant for a debt due by himself, and another
due, by him as executor.
5. In criminal case s, different offences may be joined in the
same indictment, if of the same nature, but an indictment may be
quashed, at the discretion of the court, when the counts are
joined in such a manner as will confound the evidence. 1 Chit.
Cr. Law, 253-255. In Pennsylvania, it has been decided that when
a defendant was indicted at one session of the court for a
conspiracy to cheat a third person, and at another session of the
same court he was indicted for another conspiracy to cheat
another person, the two bills might be tried by the same jury
against the will of the defendant, provided he was not thereby
deprived of any material right, as the right to challenge;
whether he should be so tried or not seems to be a matter of
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discretion with the court. 5 S. & R. 59 12 S. R. 69. Vide
Separate Trial. Vide, generally, 2 Saund. 117, b. to 117, c.;
Com. Dig. Action, G; 2 Vin. Ab. 38; Bac. Ab. Actions in
General, C; 13 John. R. 462; 10 John. R. 240; 11 John. R. 479;
1 John. R. 503; 3 Binn. 555; 1 Chit Pl. 196 to 205; Arch. Civ.
Pl. 172 to 176; Steph. Pl. Index, h. t. Dane's Ab. h. t.
JOINDER IN DEMURRER. When a demurrer is offered by one party,
the adverse party joins with him in demurrer, and the answer
which he makes is called a joinder in demurrer. Co. Litt. 71 b.
But this is a mere formality.
JOINDER OF ISSUE, pleadings. The act by which the parties to a
cause arrive at that stage of it in their pleadings, that one
asserts a fact to be so, and the other denies it. For example,
when one party denies the fact pleaded by his antagonist, who has
tendered the issue thus, "And this he prays may be inquired of by
the country," or, "And of this he puts himself upon the country,"
the party denying the fact may immediately subjoin, "And the said
A B does the like;" when the issue is said to be joined.
JOINDER OF PARTIES TO ACTIONS. It is a rule in actions ex
contractu that all who have a legal interest in the contract, and
no others, must join in action founded on a breach of such
contract; whether the parties are too many or too few, it is
equally fatal. 8 S. & R. 308: 4 Watts, 456; 1 Breese, 286; 6
Pick. 359. 6 Mass. 460; 2 Conn. 697; 6 Wend. 629; 2 N. & M.
70; 1 Bailey, 13; 5 Verm. 116; 3 J. J. Marsh. 165; 16 John.
34; 19 John. 213; 2 Greenl. 117; 2 Penn. 817.
2. In actions ex contractu all obligors jointly and not
severally liable, and no others, must be made defendants. 1
Saund. 153, note 1; 1 Breese, 128; 11 John. 101; J. J. Marsh.
38; 2 John. 213.
3. In actions ex. delicto, when an injury is done to the
property of two or more joint owners, they must join in the
action. 1 Saund. 291, g; 11 Pick. 269; 12 Pick. 120; 7 Mass.
135; 13 John. 286.
4. When a tort is of such a nature that it may be committed by
several, they may all be joined in an action ex delicto, or they
may be sued severally. But when the tort cannot be committed
jointly, as, for example, slander, two or more persons cannot be
sued jointly, although they may have uttered the same words. 6
John. 32. See, generally, 3 Bouv. Inst. n. 2648, et seq.
JOINT. United, not separate; as, joint action, or one which is
brought by several persons acting together; joint bond, a bond
given by two or more obligors.
JOINT CONTRACT. One in which the contractors are jointly bound
to perform the promise or obligation therein contained, or
entitled to receive the benefit of such promise or obligation.
2. It is a general rule that a joint contract survives,
whatever may be the beneficial interests of the parties under it;
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where a partner, covenantor, or other person entitled, having a
joint interest in a contract not running with the land, dies, the
right to sue survives in the other partner, &c. 1 Dall. 65, 248;
Addis. on Contr. 285. And when the obligation or promise is to
perform something jointly by the obligor or promissors, and one
dies, the action must be brought against the survivor. Ham. on
Part. 156.
3. When all the parties interested in a joint contract die, the
action must be brought by the executors or administrators of the
last surviving, obligee, against the executors or administrators
of the last surviving obligor. Addis. on Contr. 285. See
Contracts; Parties to Actions; Co-obligor.
JOINT EXECUTORS. It is proposed to consider, 1. The interest
which they have in the estate of the deceased. 2. How far they
are liable for each other's acts. 3. The rights of the survivor.
2. - §1. Joint executors are considered in law as but one
person, representing the testator, and, therefore, the acts of
any one of them, which relate either to the delivery, gift, sale,
payment, possession or release of the testator's goods, are
deemed, as regards the persons with whom they contract, the acts
of all. Bac. Abr. h. t.; 11 Vin. Abr. 358; Com. Dig.
Administration, B 12; 1 Dane's Abr. 583; 2 Litt. (Kentucky) R.
315; Godolph. 314; Dyer, 23, in marg. 16 Serg. & Rawle, 337.
But an executor cannot, without the knowledge of his co-executor,
confess a judgment for a claim, part of which was barred by the
act of limitations, so as to bind the estate of the testator. 6
Penn. St. Rep. 267.
3. - §2. As a general rule, it may be laid down that each,
executor is liable for his own wrong, or devastavit only, and not
for that of his colleague. He may be rendered liable, however,
for the misplaced confidence which he may have reposed in his
coexecutor. As, if he signs a receipt for money, in conjunction
with another executor, and he receives no part of the money, but
agrees that the other, executor shall retain it, and apply it to
his own use, this is his own misapplication, for which he is
responsible. 1 P. Wms. 241, n. 1; 1 Sch. & Lef. 341; 2 Sch. &
Lef. 231; 7 East, R. 256; 11 John. R. 16; 11 Serg. & Rawle,
71; Hardr. 314; 5 Johns. Ch. R. 283; and see 2 Bro. C. C. 116;
3 Bro. C. C. 112; 2 Penn. R. 421; Fonb. Eq. B. 2, c. 7, s. 5,
n. k.
4. - §3. Upon the death of one of several joint executors, the
right of administering the estate of the testator devolves upon
the survivor. 3 Atk. 509 Com. Dig. Administration, B 12; Hamm.
on Parties, 148.
5. In Pennsylvania, by legislative enactment, it is provided,
"that where testators may devise their estates to their executors
to be sold, or direct such executors to sell and convey such
estates, or direct such real estate to be sold, without naming,
or declaring who shall sell the same, if one or more of the
executors die, it shall or may be lawful for the surviving
executor to bring actions for the recovery of the possession
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thereof, and against trespassers thereon; to sell and "convey
such real estate, or manage the same for the benefit of the
persons interested therein." Act of March 12, 1800, 3 Sm. L. 433.
JOINT STOCK BANKS. In England they are a species of quasi
corporations, or companies regulated by deeds of settlement;
and, in this respect, the stand in the same situation as other
unincorporated bodies. But they differ from the latter in this,
that they are invested by certain statutes with powers and
privileges usually incident to corporations. These enactments
provide for the continuance of the partnership, notwithstanding a
change of partners. The death, bankruptcy, or the sale by a
partner of his share, does not affect the identity of the
partnership; it, continues the same body, under the same name,
by virtue of the act of parliament, notwithstanding these
changes. 7 Geo. IV., c. 46, s. 9.
JOINT TENANTS, estates. Two or more persons to whom are granted
land's or tenements to hold in fee simple, fee tail, for life,
for years, or at will. 2 Black. Com. 179. The estate which they,
thus hold is called an estate in joint tenancy. Vide Estate in
joint tenancy; Jus accrescendi; Survivor.
JOINT TRUSTEES. Two or more persons who are entrusted with
property for the benefit of one or more others.
2. Unlike joint executors, joint trustees cannot act
separately, but must join both in conveyances and receipts, for
one cannot sell without the others, or receive more of the
consideration money, or be more a trustee than his partner. The
trust having been given to the whole, it requires their joint act
to do anything under it. They are not responsible for money
received by their co-trustees, if the receipt be given for the
mere purposes of form. But if receipts be given under
circumstances purporting that, the money, though not received by
both, was under the control of both, such a receipt shall charge,
and the consent that the other shall misapply the money,
particularly where he has it in his power to secure it, renders
him responsible. 11 Serg. & Rawle, 71. See 1 Sch. & Lef. 341; 5
Johns. Ch. R. 283; Fonbl. Eq. B. 2, c. 7, s. 5; Bac. Abr. Uses
and Trusts, K; 2 Bro. Ch. R. 116; 3 Bro. Ch. R. 112. In the
case of the Attorney General v. Randall, a different doctrine was
held. Id. pl. 9.
JOINTRESS or JOINTURESS. A woman who has an estate settled on
her by her hushand, to hold during her life, if she survive him.
Co. Litt. 46.
JOINTURE, estates.. A competent livelihood of freehold for the
wife, of lands and tenements; to take effect in profit or
possession, presently after the death of the hushand, for the
life of the wife at least.
2. Jointures are regulated by the statute of 27 Hen. VIII. o.
10, commonly called the statute of uses.
3. To make a good jointure, the following circumstances must
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concur, namely; 1. It must take effect, in possession or profit,
immediately from the death of the hushand. 2. It must be for the
wife's life, or for some greater estate. 3. It must be limited to
the wife herself, and not to any other person in trust for her.
4. It must be made in satisfaction for the wife's whole dower,
and not of part of it only. 5. The estate limited to the wife
must be expressed or averred to be, in satisfaction of her whole
dower. 6. It must be made before marriage. A jointure attended
with all these circumstances is binding on the widow, and is a
complete bar to the claim of dower; or rather it prevents its
ever arising. But there are other. modes of limiting an estate to
a wife, which, Lord Coke says, are good jointures within the
statute, provided the wife accepts of them after the death of the
hushand. She may, however, reject them, and claim her dower.
Cruise, Dig. tit. 7; 2 Bl. Com. 137; Perk. h. t. In its more
enlarged sense, a jointure signifies a joint estate, limited to
both hushand and. wife. 2 131. Com. 137. Vide 14 Vin. Ab. 540;
Bac. Ab. h. t.; 2 Bouv. Inst. n. 1761, et seq.
JOUR. A French word, signifying day. It is used in our old law
books, as, tout jours, for ever. It is also frequently employed
in the composition of words, as, journal, a day book;
journeyman, a man 'who works by the day; journeys account. (q.
v.)
JOURNAL, mar. law. The book kept on board of a ship or other
vessel, which contains an account of the ship's course, with a
short history of every occurrence during the voyage. Another name
for logbook. (q. v.) Chit. Law of Nat. 199.
JOURNAL, common law. A book used among merchants, in which the
contents of the waste-book are separated every month, and entered
on the debtor and creditor side, for more convenient posting in
the ledger.
JOURNAL, legislation. An account of the proceedings of a
legislative body.
2. The Constitution of the United States, art. 1, s. 5, directs
that "each house shall keep a journal of its proceedings; and
from time to time publish the same, excepting such parts as may,
in their judgment, require secrecy." Vide 2 Story, Const., 301.
3. The constitutions of the several states contain similar
provisions.
4. The journal of either house is evidence of the action of
that house upon all matters before it. 7 Cowen, R. 613 Cowp. 17.
JOURNEYS ACCOUNT, Eng. practice. When a writ abated without any
fault of the plaintiff, he was permitted to sue out a new writ,
within as little time as he possibly could after abatement of the
first writ, which was quasi a continuance of the first writ, and
placed him in a situation in which he would have been, supposing
he had still, proceeded on that writ. This was called journeys
account.
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2. This mode of proceeding has fallen into disuse, the practice
now being to permit that writ to be quashed, and torque out
another. Vide Termes de la Ley, h. t.; Bac. Ab. Abatement, Q;
14 Vin. Ab. 558; 4 Com. Dig. 714; 7 Mann. & Gr. 762.
JUDEX. This word has several significations: 1. The judge, one
who declares the law, quijus dicit; one who administers justice
between the parties to a cause, when lawfully submitted to him.
2. The judicial power, or the court. 3. Anciently, by judex was
also understood a juror. Vide Judge.
JUDEX A Quo. A judge from whom an appeal may be taken; a judge
of a court below. See A quo; 6 Mart. Lo. Rep. 520.
JUDEX AD OUEM. A judge to whom an appeal may be taken: a
superior judge.
JUDGE. A public officer, lawfully appointed to decide litigated
questions according to law. This, in its most extensive sense,
includes all officers who are appointed to decide such questions,
and not only judges properly so called, but also justices of the
peace, and jurors, who are judges of the facts in issue. See 4
Dall. 229; 3 Yeates, IR. 300. In a more limited sense, the term
judge signifies an officer who is so named in his commission, and
who presides in some court.
2. Judges are appointed or elected, in a variety of ways, in
the United States they are appointed by the president, by and
with the consent of the senate; in some of the states they are
appointed by the governor, the governor and senate, or by the
legislature. In the United States, and some of the states, they
hold their offices during good behaviour; in others, as in New
York, during, good behaviour, or until they shall attain a
certain age and in others for a limited term of years.
3. Impartiality is the first duty of a judge; before he gives
an opinion, or sits in judgment in a cause, he ought to be
certain that he has no bias for or against either of the parties;
and if he has any (the slightest) interest in the cause, he is
disqualified from sitting as judge; aliquis non debet esse judex
in propria causa; 8 Co. 118; 21 Pick. Rep. 101; 5 Mass. 92;
13 Mass. 340; 6 Pick. R. 109; 14 S. & R. 157-8; and when he is
aware of such interest, he ought himself to refuse to sit on the
case. It seems it is discretionary with him whether he will sit
in a cause in which he has been of counsel. 2 Marsh. 517; Coxe,
164; see 2 Binn. 454. But the delicacy which characterizes the
judges in this country, generally, forbids their sitting in such
a cause.
4. He must not only be impartial, but he must follow and
enforce the law, whether good or bad. He is bound to declare what
the law is , and not to make it; he is not an arbitrator, but an
interpreter of the law. It is his duty to be patient in the
investigation of the case, careful in considering it, and firm in
his judgment. He ought, according to Cicero, "never to lose sight
that he is a man, and that he cannot exceed the power given him
by his commission; that not only power, but public confidence
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has been given to him; that he ought always seriously to attend
not to his wishes but to the requisitions of law, of justice and
religion." Cic. pro. Cluentius. A curious case of judicial
casuistry is stated by Aulus Gellius Att. Noct. lib: 14, cap. 2,
which may be interesting to the reader.
5. While acting within the bounds of his jurisdiction, the
judge is hot responsible for any error of judgment, nor mistake
he may commit as a judge. Co. Litt. 294; 2 Inst. 422; 2 Dall.
R. 160; 1 Yeates, R. 443; N. & M'C. 168; 1 Day, R. 315; 1
Root, R. 211; 3 Caines, R. 170; 5 John. R. 282; 9 John. R.
395; 11 John. R. 150; 3 Marsh. R. 76; 1 South. R. 74; 1 N. H.
Rep. 374; 2 Bay, 1, 69; 8 Wend. 468; 3 Marsh. R. 76,. When he
acts corruptly, he may be impeached. 5 John. R. 282; 8 Cowen, R.
178; 4 Dall. R. 225.
6. A judge is not competent as a witness in a cause trying
before him, for this, among other reasons, that he can hardly be
deemed capable of impartially deciding on the admissibility of
his own testimony, or of weighing. it against that of another. a
Martln's R, N. S. 312. Vide, Com. Dig. Courts, B 4, C 2, E 1, P
16 justices, 1 1, 2, and 3; 14 Vin. Ab. 573; Bac. Ab. Courts,
&c., B; 1 Kent, Com. 291; Ayl. Parerg. 309; Story, Const.
Index, h. t. See U. S. Dig. Courts, I, where will be found an
abstract of various decisions relating to the appointment and
powers of judges in different states. Vide Eguality;
Incompetency.;
JUDGE ADVOCATE. An officer who, is a member of a court martial.
2. His duties are to prosecute in the name of the United
States, but he shall so far consider himself as counsel for the
prisoner, after the prisoner shall have made his plea, as to
object to leading questions to any of the witnesses, or any
question to the prisoner, the answer to which might tend to
criminate himself. He is further to swear the members of the
court before they proceed upon any trial. Rules and Articles of
War, art. 69, 2 Story, L. U. S. 1001; Lid. Jud. Adv. passim.
JUDGE'S NOTES. They are short statements, made by a judge on
the trial of a cause, of what transpires in the course of such
trial. They usually contain a statement of the testimony of
witnesses; of documents offered or admitted in evidence; of
offers of evidence and whether it has been received or rejected,
and the like matters.
2. In general judge's notes are not evidence of what transpired
at a former trial, nor can they be read to prove what a deceased
witness swore to on such former trial, for they are no part of
the record, and he is not officially bound to make them. But in
chancery, when a new trial is ordered of an issue sent out of
chancery to a court of law, and it is suggested that some of the
witnesses in the former trial are of an advanced age, an order
may be made that, in the event of death or inability to attend,
their testimony may be read from the judge's notes. 1 Greenl. Ev.
§166.
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JUDGMENT, practice. The decision or sentence of the law, given
by a court of justice or other competent tribunal, as the result
of proceedings instituted therein, for the redress of an injury.
2. The language of judgments, therefore, is not that "it is
decreed," or " resolved," by the court; but " it is considered,"
(consideratum est per curiam) that the plaintiff recover his
debt, damages, or possession, as the case may require, or that
the defendant do go without day. This implies that the judgment
is not so much the decision of the court, as the sentence of the
law pronounced and decreed by the court, after due deliberation
and inquiry.
3. To be valid, a judicial judgment must be given by a
competent judge or court, at a time and place appointed by law,
and in the form it requires. A judgment would be null, if the
judge had not jurisdiction of the matter; or, having such
jurisdiction, he exercised it when there was no court held, or
but of his district; or if be rendered a judgment before the
cause was prepared for a hearing.
4. The judgment must confine itself to the question raised
before the court, and cannot extend beyond it. For example, where
the plaintiff sued for an injury committed on his lands by
animals owned and kept carelessly by defendant, the judgment may
be for damages, but it cannot command the defendant for the
future to keep his cattle out of the plaintiff's land. That would
be to usurp the power of the legislature. A judgment declares the
rights which belong to the citizen, the law alone rules future
actions. The law commands all men, it is the same for all,
because it is general; judgments are particular decisions, which
apply only to particular persons, and bind no others; they vary
like the circumstances on which they are founded.
5. Litigious contests present to the courts facts to
appreciate, agreements to be construed, and points of law to be
resolved. The judgment is the result of the full examination of
all these.
6. There are four kinds of judgments in civil cases, namely:
1. When the facts are admitted by the parties, but the law is
disputed; as in case of judgment upon demurrer. 2. When the law
is admitted, but the facts are disputed; as in, case of judgment
upon a verdict. 3. When both the law and the facts are admitted
by confession; as, in the case of cognovit actionem, on the part
of the defendant; or nolle prosequi, on the part of the
plaintiff. 4. By default of either party in the course of legal
proceedings, as in the case of judgment by nihil disit, or non
sum informatus, when the defendant has omitted to plead or
instruct his attorney to do so, after a proper notice or in cases
of judgment by non pros; or, as in case of nonsuit, when the
plaintiff omits to follow up his proceedings.
7. These four species of judgments, again, are either
interlocutory or final. Vide 3 Black. Com. 396; Bingh. on Judgm.
1. For the lien of judgment in the several estates, vide Lien.
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8. A list of the various judgments is here given.
9. Judgment in assumpsit is either in favor of the plaintiff or
defendant; when in favor of the plaintiff, it is that he recover
a specified sum, assessed by a jury, or on reference to the
prothonotary, or other proper officer, for the damages which he
has sustained, by reason of the defendant's non-performance of
his promises and undertakings, and for full costs of suit. 1
Chit. Pl. 100. When the judgment is for the defendant, it is that
he recover his costs.
10. Judgment in actions on the case for torts, when for the
plaintiff, is that he recover a sum of money ascertained by a
jury for his damages occasioned by the committing of the
grievances complained of, and the costs of suit. 1 Ch. Pl. 147.
When for the defendant, it is for costs.
11. Judgment of cassetur breve, or billa, is in cases of pleas
in abatement where the plaintiff prays that his "writ" or " bill"
"may be quashed, that he may sue or exhibit a better one." Steph.
Pl. 130, 131, 128 Lawes, Civ. PI.
12. Judgment by confession. When instead of entering a plea,
the defendant chooses to confess the action; or, after pleading;
he does, at any time before trial, both confess the action and
withdraw his plea or other allegations; the judgment against
him, in these two cases, is called a judgment by confession or by
confession relicta verificatione. Steph. Pl. 130.
13. Contradictory judgment. By this term is understood, in the
state of Louisiana, a judgment which has been given after the
parties have been heard, either in support of their claims, or in
their defence. Code of Pract. art. 535; 11 L. R. 366, 569. A
judgment is called contradictory to distinguish it from one which
is rendered by default.
14. Judgment in covenant; when for the plaintiff, is that he
recover an ascertained sum for his damages, which he has
sustained by reason of the breach or breaches of the defendant's
covenant, together with costs of suit. 1 Chitty's Plead. 116,
117. When for the defendant, the judgment, is for costs.
15. Judgment in the action of debt; when for the plaintiff, is
that he recover his debt, and in general, nominal damages for the
detention thereof; and in cases under the 8 and 9 Wm. III. c.
11, it is also awarded, that the plaintiff have execution for the
damages sustained by the breach of a bond, conditioned for the
performance of covenants; and that plaintiff recover full costs
of suit. 1 Chitty's Pl. 108, 9.
16. In some penal and other particular actions the plaintiff
does not, however, always recover costs. Espinasse on Pen. Act.
154: Hull. on Costs, 200; Bull. N. P. 333; 5 Johns. R. 251.
17. When the judgment is for the defendant, it is generally for
costs. In some penal actions, however, neither party can recover
costs, 5 Johns. R. 251.
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18. Judgment by default, is a judgment rendered in consequence
of tho non-appearance of the defendant, and is either by nil
dicit; vide Judgment by nil dicit, or by non sum informatus;
vide Judgment by non sum informatus.
19. This judgment is interlocutory in assumpsit, covenant,
trespass, case, and replevin, where the sole object of the action
is damages; but in debt, damages not being the principal object
of the action, the plaintiff usually signs final judgment in the
first instance. Vide Com. Dig. Pleader, B 11 and 12, E 42; 7
Vin. Ab. 429; Doct. Pl. 208; Grah. Pr, 631 Dane's Ab. Index, h.
t.; 3 Chit. Pr. 671 to 680; Tidd's Pr. 563; 1 Lillv's Reg.
585; and article Default.
20. Judgment in the action of detinue; when for the plaintiff,
is in the alternative, that he recover the goods, or the value
thereof, if he cannot have the goods themselves, and his damage
for the detention and costs. 1 Ch. Pl. l21, 2; 1 Dall. R. 458.
2l. Judgment in error, is a judgment rendered by a court ot
error, on a record sent up, from an inferior court. These
judgments are of two kinds, of affirmance and reversal. When the
judgment is for the defendant in error, whether the errors
assigned be in law or in fact, it is "that the former judgment be
affirmed, and stand in full force and effect, the said causes and
matters assigned for error notwithstanding, and that the
defendant in error recover $____ for his damages, charges and
costs which he hath sustained," &c. 2 Tidd's Pr. 1126; Arch.
Forms, 221. When it is for the plaintiff in error, the judgment
is that it be reversed or recalled. It is to be reversed for
error in law, in this form, that it be reversed, annulled and
altogether holden for nought." Arch. Forms, 224. For error in
fact the, judgment is recalled, revocatur. 2 Tidd, Pr. 1126.
22. A final judgment is one which puts an end to the suit.
23. When the issue is one in fact, and is tried by a jury, the
jury at the time that they try the issue, assess the damages, and
the judgment is final in the first instance, and is that the
plaintiff do recover the damages assessed.
24. When an interlocutory judgment has been rendered, and a
writ of inquiry has issued to ascertain the damages, on the
return of the inquisition the plaintiff is entitled to a final
judgment, namely, that he recover the amount of damages so
assessed. Steph. Pl. 127, 128.
25. An interlocutory judgment, is one given in the course of a
cause, before final judgment. When the action sounds in damages,
and the issue is an issue in law, or when any issue in fact not
tried by a jury is decided in favor of the plaintiff, then the
judgment is that the plaintiff ought to recover his damages
without specifying their amount; for, as there has been no trial
by jury in the case, the amount of damages is not yet
ascertained. The judgment is then said to be interlocutory.
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26. To ascertain such damages it is the practice to issue a
writ of inquiry. Steph. Pl. 127. When the action is founded on a
promissory note, bond, or other writing, or any other contract by
which the amount due may be readily computed, the practice is, in
some courts, to refer it to the prothonotary or clerk to assess
the damages.
27. There is one species of interlocutory judgment which
establishes nothing but the inadequacy of the defence set up this
is the judgment for the plaintiff on demurrer to a plea in
abatement, by which it appears that the defendant has mistaken
the law on a point which does not affect the merits of his case;
and it being but reasonable that he should offer, if he can, a
further defence, that judgment is that he do answer over, in
technical language, judgment of respondeat ouster. (q. v.) Steph.
Plead, 126; Bac. Ab. Pleas, N. 4; 2 Arch. Pr. 3.
28. Judgment of nil capiat per breve or per billam. When an
issue arises upon a declaration or peremptory plea, and it is
decided in favor of the defendant, the judgment is, in general,
that, the plaintiff take nothing by his writ, (or bill,) and that
the defendant go thereof without day, &c. This is called a
judgment of nil capiat per breve, or per billam. Steph. Pl. 128.
29. Judgment by nil dicit, is one rendered against a defendant
for want of a plea. The plaintiff obtains a rule on the defendant
to plead within a time specified, of which he serves a notice on
the defendant or his attorney; if the defendant neglect to enter
a plea within the time specified, the plaintiff may sign judgment
against him.
30. Judgment of nolle prosequi, is a judgment entered against
the plaintiff, where, after appearance and before judgment, he
says, "he will not further prosecute his suit." Steph. Pl. 130
Lawes Civ. Pl. 166.
31. Judgment of non obstante veredicto, is a judgment rendered
in favor of the plaintiff, without regard to the verdict obtained
by the defendant.
32. The motion for such judgment is made where after a pleading
by the defendant in confession and avoidance, as, for example, a
plea in bar, and issue joined thereon, and verdict found for, the
defendant, the plaintiff on retrospective examination of the
record, conceives that such plea was bad in substance, and might
have been made the subject of demurrer on that ground. If the
plea was itself substantially bad in law, of course the verdict,
which merely shows it to be true in point of fact, cannot avail
to entitle the defendant to judgment; while on the other hand
the plea being in confession and avoidance, involves a confession
of the plaintiff's declaration, and shows that he was entitled.
to maintain his action. In such case, therefore, this court will
give judgment for the plaintiff, without regard to the verdict;
and this, for the reasons above explained, is called a judgment
upon confession. Sometimes it may be expedient for the plaintiff
to move for judgment non obstante, &c., even though the verdict
be in his own favor; for, if in such case as above described, he
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takes judgment as upon the verdict, it seems that such judgment
would be erroneous, and that the only safe course is to take it
as upon confession. 1 Wils. 63; Cro. Eliz, 778 2 Roll. Ab. 99.
See also, Cro. Eliz. 2 1 4 6 Mod. 1 0; Str. 394; 1 Ld. Raym.
641; 8 Taunt. 413; Rast. Ent. 622; 1 Wend. 307; 2 Wend. 624;
5 Wend. 513; 4 Wend. 468; 6 Cowen, R. 225. See this Dict.
Repleader, for the difference between a repleader and a judgment
non obstante veredicto.
33. Judgment by non sum informatus, is one which is rendered,
when instead of entering a plea, the defendant's attorney says he
is not informed of any answer to be given to the action. Steph.
Pl. 130.
34. Judgment of non pros. (from non prosequitur,) is one given
against the plaintiff, in any class of actions, for not
declaring, or replying, or surrejoining, &c., or for not entering
the issue.
35. Judgment of nonsuit, Practice, is one against the
plaintiff, which happens when, on trial by jury, the plaintiff,
on being called or demanded, at the instance of the defendant, to
be present while the jury give their verdict, fails to make his
appearance.
36. In this case, no verdict is given, but the judgment of
nonsuit passes against the plaintiff. So if, after issue be
joined, the plaintiff neglect to bring such issue on to be tried
in due time, as limited by the practice of the court, in the
particular case, judgment will be also given against him for this
default; and it is called judgment as in case of nonsuit. Stepb.
Pl. 131.
37. After suffering a nonsuit, the plaintiff may commence
another action for the same cause for which the first had been
instituted.
38. In some cases, plaintiffs having obtained information in
what manner the jury had agreed upon their verdict before it was
delivered in court, have, when the jury were ready to give in
such verdict against them, suffered a nonsuit for the purpose of
commencing another action and obtaining another trial. To prevent
this abuse, the legislature of Pennsylvania have provided, by the
Act of March 28, 1814, 6:Reed's L. 208, that "whenever on the
trial of any cause, the jury shall be ready to give in their
verdict, the plaintiff shall not be called, nor shall he then be
permitted to suffer a nonsuit."
39. Judgment quod computet. The name of an interlocutory
judgment in an action of account render that the defendant do
account, quod computet. Vide 4 Wash. C. C. R. 84; 2 Watts, R.
95; 1 Penn. R. 138.
40. Judgment quod recuperet. When an issue in law, other than
one arising on a dilatory plea, or an issue in fact, is decided
in favor of the plaintiff, the judgment is, that the plaintiff do
recover, which is called a judgment guod recuperet. Steph. Pl.
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126; Com. Dig. Abatement, I 14, I 15; 2 Arch. Pr. 3. This
judgment is of two kinds, namely, interlocutory or final.
41. Judgment in replevin, is either for the plaintiff or
defendant.
42. - §1. For the plaintiff. 1. When the declaration is in the
detinuit, that is, where the plaintiff declares, that the
chattels "were detained until replevied by the sheriff," the
judgment is that he recover the damages assessed by the jury for
the taking and unjust detention, or for the latter only, where
the former was justifiable, as also his costs. 5 Serg. & Rawle,
133 Ham. N. P. 488.
43. - 2. If the replevin is in the detinet, that is, where the
plaintiff declares that the chattels taken are " yet detained,"
the jury must find, 'in addition to the above, the value of the
chattels, (assuming that they are still detained,) not in a gross
sum, but each separate article; for tho defendant, perhaps, will
restore some, in which case the plaintiff is to recover the value
of the remainder. Ham. N. P. 489; Fitz. N. B. 159, b; 5 Serg. &
Rawle, 130.
44. - §2. For the defendant. 1. If the replevin be abated, the
judgment is, that the writ or plaint abate, and that the
defendant (having avowed) have a return of the chattels.
46. - 2. When the plaintiff is nonsuited) the judgment for the
defendant, at common law, is, that the chattels be restored to
him, and this without his first assigning the purpose for which
they were taken, because, by abandoning his suit, the plaintiff
admits that he had no right to dispossess the defendant by
prosecuting the replevin. The form of this judgment. is simply "
to have a return, " without adding the words " to hold
irreplevisable." Ham. N. P. 490.
46. As to the form of judgments in cases of nonsuit, under the
21 Hen. VIII. c. 19, and 17 Car. II. c. 7, see Ham. N. P. 490,
491; 2 Ch. Pleacd. 161; 8 Wentw. Pl. 116; 5 Serg. & Rawle,
132; 1 Saund. 195, n. 3; 2 Saund. 286, n. 5. It is still in the
defendant's option in these cases, to take his judgment pro
retorno habendo at common law. 5 Serg. & Rawle, 132; 1 Lev. 265;
3 T. R. 349.
47. - 3. When tho avowant succeeds upon the merits of his case,
the common law judgment is, that he "have return irreplevisable,"
for it is apparent that he is by law entitled to keep possession
of the goods. 5 Serg. & Rawle, 135; Ham. N. P. 493; 1 Chit. Pl.
162. For the form of judgments in favor of the avowant, under the
last mentioned statutes, gee Ham. N. P. 494-5.
48. Judgment of respondeat ouster. When there is an issue in
law, arising on a dilatory plea, and it is decided in favor of
the plaintiff, the judgment is only that the defendant answer
over, which is called a judgment of respondeat ouster. The
pleading is accordingly resumed, and the action proceeds. Steph.
Pl. 126; see Bac. Abr. Pleas, N 4; 2 Arch. Pr. 3.
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49. Judgment of retraxit, is one where, after appearance and
before judgment, the, plaintiff enters upon the record that he
"withdraws his suit;" in such case judgment is given against him.
Stepb. Pl. 130.
50. Judgment in an action on trespass, when for the plaintiff,
is, that he recover the damages assessed by the jury, and the
costs. For the defendant, that he recover the costs.
51. Judgment in action on the case for trover, when for the
plaintiff, is, that he recover damages and costs. 1 Ch. Pl. 157,
For the defendant, the judgment is, that he recover his costs.
52. Judgment of capiatur. At common law, on conviction, in a
civil action, of a forcible wrong, alleged to have been committed
vi et armis, &c., the defendant was obliged to pay a fine to the
king, for the breach of the peace implied in the act, and a
judgment of capiatur pro fine was rendered against him, under
which he was liable to be arrested, and imprisoned till the fine
was paid. But by the 5 W. & M. c. 12, the judgment of capiatur
pro fine was abolished. Gould on Pl. §38, 82; Bac. Ab. Fines and
Amercements, C 1; 1 Ld. Raym. 273, 4; Style, 346. See Judgment
of misericordia, 53. Judgment of misericordia. At common law, the
party to, a suit who did not prevail was punished for his unjust
vexation, and therefore judgment was given against him, quod sit
in misericordia pro falso clamore. Hence, when the plaintiff sued
out a writ, the sheriff was obliged to take pledges of
prosecution before he returned it, which when fines and
amercements were considerable, were real and responsible persons,
and answerable for those amercements; but now they are never
levied, and the pledges are merely formal, namely, John Doe and
Richard Roe. Bac. Ab. Fines, &c., C 1 1 Lord Ray. 273, 4.
54. In actions where the judgment was against the defendant, it
was entered at common law, with a misericordia or a capiatur.
With a misericordia in actions on contracts, with a capiatur in
actions of trespass, or other forcible wrong, alleged to have
been committed vi et armis. See Judgment of capiatur; Gould on
Pl. c. 4, §§38, 82, 83.
55. Judgment quod partitio fiat, is a judgment, in a writ of
partition, that partition be made; this is not a final judgment.
The final judgment is, quod partitio facta firma et stabilis in
perpetuum teneatur. Co. Litt. 169; 2 Bl. Rep. 1159.
56. Judgment quod partes replacitent. The name of a judgment
given when the court award a repleader.
57. When issue is joined on an immaterial point, or a point on
which the court cannot give a judgment determining the right,
they award a repleader or judgment quod partes replacitent. See
Bac. Ab. Pleas, &c., M; 3 Hayw. 159; Peck's R. 325. See,
generally, Bouv. Inst. Index, h. t.
JUDGMENT, ARREST OF, practice. This takes place when the court
withhold judgment from the plaintiff on the ground that there is
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some error appearing on the face of the record, which vitiates
the proceedings. In consequence of such error, on whatever part
of the record it may arise, from the commencement of the suit to
the time when the motion in arrest of judgment is made, the court
are bound to arrest the judgment.
2. It is, however, only with respect to objections apparent on
the record, that such motions can be made. They cannot, in
general, be made in respect to formal objections. This was
formerly otherwise, and judgments were constantly arrested for
matters of mere form; 3 Bl. Corn. 407; 2 Reeves, 448; but this
abuse has been long remedied by certain statutes passed at
different periods, called the statutes of amendment and jeofails,
by the effect of which, judgments, cannot, in general, now be
arrested for any objection of form. Steph. Pl. 117; see 3 Bl.
Com. 393; 21 Vin. Ab. 457; 1 Sell. Pr. 496.
JUDGMENT POLL, Eng. law. A record made of the issue roll, (q.
v.) which, after final judgment has been given in the cause,
assumes this name. Steph. Pl. 133. Vide Issue Roll.
JUDICATURE. The state of those employed in the administration
of justice, and in this sense it is nearly synonymous with
judiciary. This term is also used to signify a tribunal; and
sometimes it is employed to show the extent of jurisdiction, as,
the judicature is upon writs of error, &c. Com. Dig. Parliament,
L 1; and see Com. Dig. Courts, A.
JUDICES PEDANEOS. Among the Romans, the praetors, and other
great magistrates, did not themselves decide the actions which
arose between private individuals these were submitted to judges
chosen by the parties, and these judges were called judices
pedaneos. In choosing them, the plaintiff had the right to
nominate, and the defendant to accept or reject those nominated.
Heinnee. Antiq. lib. 4, tit. b, n. 40 7 Toull. n. 353.
JUDICIAL. Belonging, or emanating from a judge, as such.
2. Judicial sales, are such as are ordered by virtue of the
process of courts. 1 Supp. to Ves. jr., 129, 160; 2 Ves. jr.,
50.
3. A judicial writ is one issued in the progress of the cause,
in contradistinction to an original writ. 3 Bl. Com. 282.
4. Judicial decisions, are the opinions or determinations of
the judges in causes before them. Hale, H. C. L. 68; Willes' R.
666; 3 Barn. & Ald. 122 4 Barn. & Adol. 207 1 H. B1. 63; 5 M. &
S. 185.
5. Judicial power, the authority vested in the judges. The
constitution of the United States declares, that "the judicial
power of the United States shall be vested in one supreme court,
and in such inferior courts as the congress may, from time to
time, ordain and establish." Art. 3, s. 1. 6. By the
constitutions of the several states, the judicial power is vested
in such courts as are enumerated in each respectively. See the
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names Of, the several states. There is nothing in the
constitution of the United States to forbid or prevent the
legislature of a state from exercising judicial functions; 2
Pet. R. 413; and judicial acts have occasionally been performed
by the legislatures. 2 Root, R. 350; 3 Greenl. R. 334; 3 Dall.
R. 386; 2 Pet. R. 660; 16 Mass. R. 328; Walk. R. 258; 1 New
H. Rep. 199; 10 Yerg. R. 59; 4 Greenl. R. 140; 2 Chip., R. 77;
1 Aik. R. 314. But a state legislature cannot annul the
judgments, nor determine the jurisdiction of the courts of the
United States; 5 Cranch, It. 116; 2 Dall. R. 410; nor
authoritatively declare what the law is, or has been, but what it
shall be. 2 Cranch, R. 272; 4 Pick. R. 23. Vide Ayl. Parerg. 27;
3 M. R. 248; 4 M. R. 451; 9 M. R. 325; 6 M. R. 668; 12 M. R.
349; 3 N. S. 551; 5 N. S. 519; 1 L. R. 438 7 M. R. 325; 9 M.
R. 204; 10 M. R. 1.
JUDICIAL ADMISSIONS. Those which are generally made in writing
in court by the attorney of the party; they appear upon the
record, as in the pleadings and the like.
JUDICIAL CONFESSIONS, criminal law. Those voluntarily made
before a magistrate, or in a court, in the due course of legal
proceedings. A preliminary examination, taken in writing, by a
magistrate lawfully authorized, pursuant to a statute, or the
plea of guilty, made in open court to an indictment, are
sufficient to found a conviction upon them.
JUDICIAL CONVENTIONS. Agreements entered into in consequence of
an order of court; as, for example, entering into a bond on
taking out a writ of sequestration. 6 N. S. 494.
JUDICIAL MORTGAGE. In Louisiana, it is the lien resulting from
judgments, whether these be rendered on contested cases, or by
default, whether they be final or provisional, in favor of the
person obtaining them. Civ. Code of Lo. art. 3289.
JUDICIAL SALE. A sale by authority of some competent tribunal,
by an officer authorized by law for the purpose.
2. The officer who makes the sale, conveys all the rights of
the defendant, or other person against whom the process has been
issued, in the property sold. Under such a sale there is no
warranty, either express or implied, of the thing sold. 9 Wheat.
616. When real estate is sold by the sheriff or marshal, the sale
is subject to the confirmation of the court, or it may be set
aside. See 4 Wash. C. C. R. 45 Wallace, 128; 4 Wash. C. C. R.
322.
JUDICIAL WRITS, Eng. practice. The capias and all other writs
subsequent to the original writ not issuing out of chancery, but
from the court into which the original was returnable, and being
grounded on what had passed in that court in consequence of the
sheriff's return, were called judicial writs, in
contradistinction to the writs issued out of chancery, which were
called original writs. 3 Bl. Com. 282.
JUDICIARY. That which is done while administering justice; the
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judges taken collectively; as, the liberties of the people are
secured by a wise and independent judiciary. See Courts; and 3
Story, Const. B. 3, c. 3 8.
JUDICIUM DEI. The judgment of God. The English law formerly
impiously called the judgments on trials by ordeal, by battle,
and the like, the judgments of God.
JUICIO DE CONCURSO. This term is Spanish, and is used in
Louisiana. It is the name of an action brought for the purpose of
making a distribution of an insolvent's estate. It differs from
all other actions in this important particular, that all the
parties to it except the insolvent, are at once plaintiffs and
defendant. Each creditor is plaintiff against the failing debtor,
to recover the amount due by him, and against the co-creditors,
to diminish the amount they demand from his estate, and each is,
of necessity, defendant against the opposition made by the other
creditors against his demand. From the peculiar situation in
which the parties are thus placed, many distinct and separate
suits arise, and are decided during the pendancy of the main one,
by the insolvent in which they originate. 4 N. S. 601, 3 Harr.
Cond. Lo. R. 409.
JUNIOR. Younger.
2. This has been held to be no part of a man's name, but an
addition by use, and a convenient distinction between a father
and son of the same name. 10 Mass. R. 203 10 Paige, 170; 1 Pick.
R. 388; 7 John . It. 549; 2 Caines, 164 1 Pick. 388 15 Pick. 7;
17 Pick. 200 3 Metc. 330.
3. Any matter that distinguishes persons renders the addition
of junior or senior unnecessary. 1 Mod. Ent. 35; Salk. 7. But if
father and son have both the same name, the father shall be,
prima facie, intended, if junior be not added, or some other
matter of distinction. Salk, 7; 6 Rep. 20 11 Rep. 39; Hob. 330.
If father and son have the same name and addition, and the former
sue the latter, the writ is abateable unless the son have the
further addition of junior, or the younger. But if the father be
the defendant and the son the plaintiff, there is no need of the
further addition of senior, or the elder, to the name of the
father. 2 Hawk. 187; Laws of Women, 380.
JUNIPERUS SABINA, med. jur. This plant is commonly called
savine.
2. It is used for lawful purposes in medicine, but too
frequently for the criminal intent of producing abortion,
generally endangering the life of the woman. It is usually
administered in powder or oil. The dose of oil for lawful
purposes, for a grown person, is from two to four drops. Parr's
Med. Dictionary, article Sabina. Fodere mentions a case where a
large dose of powdered savine had been administered to an
ignorant girl, in the seventh month of her pregnancy, which had
no effect on the foetus. It was, however, near taking the life of
the girl. Fodere, tome iv. p. 431. Given in sufficiently large
doses, four or six grains in the form of powder, kills a dog in a
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few hours, and even its insertion into a wound has tho same
effect. Orfila, Traite des Poisons, tome iii. p. 42. For or a
form of indictment for administering savine to a woman quick with
child, see 3 Chit. Cr. Law, 798. Vide 1 Beck's Med. Jur. 316,
JURA PERSONARUM. The rights and duties of persons are so
called.
JURA RERUM. The rights which a man may acquire in and to such
external things as are unconnected with. his person, are called
jura rerum. 2 Bl. Com. 1.
JURA SUMMA IMPERII. Rights of sovereignty or supreme dominion.
JURAMENTAE CORPORALIA. Corporal oaths. These oaths are so
called, because the party making oath must touch the Bible, or
other thing by which he swears.
JURAMENTUM JUDICIALE. A term in the civil law. The oath called
juramentum judiciale is that which the judge, of his wwn accord,
defers to either of the parties.
2. It is of two kinds. 1st. That which the judge defers for the
decision of the cause, and which is understood by the general
name juramentum judiciale, and is sometimes called suppletory
oath, juramentum suppletorium.
3. - 2d. That which the judge defers in order to fix and
determine the amount of the condemnation which he ought to
pronounce, and which is called juramentum in litem. Poth. on
Oblig. P. 4, s. 3, art. 3.
JURAT Practice. That part of an affidavit where the officer
certifies that the same was "sworn" before him.
2. The jurat is usually in the following form, namely "Sworn
and subscribed before me, on the ____ day of _______, 1842, J. P.
justice of the peace."
3. In some cases it has been holden that it was essential that
the officer should sign the jurat, and that it should contain his
addition and official description. 3 Caines, 128. But see 6 Wend.
543; 12 Wend. 223; 2 Cowen. 552 2 Wend. 283; 2 John. 479;
Harr. Dig. h. t.; Am. Eq. Dig.
JURATA. A certificate placed at the bottom of an affidavit,
declaring that the witness has been sworn or affirmed to the
truth of the facts therein alleged. Its usual form is,: Sworn
(or affirmed) before me, the ____ day of ____, 10 __." The Jurat.
(q. v.)
JURATS, officers. In some English corporations, jurats are
officers who have much the same power as aldermen in others.
Stat. 1 Ed. IV. Stat. 2 & 3 Ed. VI. c. 30; 13 Ed. I., c. 26.
JURE. By law; by right; in right; as, jure civilis, by the
civil law; jure gentium, by the law of nations; jure
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representationis, by right of representation; jure uxoris, in
right of a wife.
JURIDICAL. Signifies used in courts of law; done in conformity
to the laws of the country, and the practice which is there
observed.
JURIDICAL DAYS. Dies juridici. Days in court on which the law
is administered.
JURIS ET DE JURE. A phrase employed to denote conclusive
presumptions of law, which cannot be rebutted by evidence. The
words signify of law and from law. Best on Presumption, §17.
JURISCONSULT. One well versed in jurisprudence; a jurist: one
whose profession it is to give counsel on questions of law.
JURISDICTION, Practice. A power constitutionally conferred upon
a judge or magistrate, to take cognizance of, and decide causes
according to law, and to carry his sentence into execution. 6
Pet. 591; 9 John. 239. The tract of land or district within
which a judge or magistrate has jurisdiction, is called his
territory, and his power in relation to his territory is called
his territorial jurisdiction.
2. Every act of jurisdiction exercised by a judge without his
territory, either by pronouncing sentence or carrying it into
execution, is null. An inferior court has no jurisdiction beyond
what is expressly delegated. 1 Salk. 404, n.; Gilb. C. P. 188;
1 Saund. 73; 2 Lord Raym. 1311; and see Bac. Ab. Courts, &c.,
C, et seq; Bac. Ab. Pleas, E 2.
3. Jurisdiction is original, when it is conferred on the court
in the first instance, which is called original jurisdiction;
(q. v.) or it is appellate, which is when an appeal is given from
the judgment of another court. Jurisdiction is also civil, where
the subject-matter to be tried is not of a criminal nature; or
criminal, where the court is to punish crimes. Some courts and
magistrates have both civil and criminal jurisdiction.
Jurisdiction is also concurrent, exclusive, or assistant.
Concurrent jurisdiction is that which may be entertained by
several courts. It is a rule that in cases of concurrent
jurisdictions, that which is first seized of the case shall try
it to the exclusion of the other. Exclusive jurisdiction is that
which has alone the power to try or determine the Suit, action,
or matter in dispute. assistant jurisdiction is that which is
afforded by a court of chancery, in aid of a court of law; as,
for example, by a bill of discovery, by the examination of
witnesses de bene esse, or out of the jurisdiction of the court;
by the perpetuation of the testimony of witnesses, and the like.
4. It is the law which gives jurisdiction; the consent of,
parties, cannot, therefore, confer it, in a matter which the law
excludes. 1 N. & M. 192; 3 M'Cord, 280; 1 Call. 55; 1 J. S.
Marsh. 476; 1 Bibb, 263; Cooke, 27; Minor, 65; 3 Litt. 332;
6 Litt. 303; Kirby, 111; 1 Breese, 32; 2 Yerg. 441; 1 Const.
R. 478. But where the court has jurisdiction of the matter, and
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the defendant has some privilege which exempts him from the
jurisdiction, he may wave the privilege. 5 Cranch, 288; 1 Pet.
449; 8 Wheat. 699; 4 W. C. C. R. 84; 4 M'Cord, 79; 4 Mass.
593; Wright, 484. See Hardin, 448; 2 Wash. 213.
5. Courts of inferior jurisdiction must act within their
jurisdiction, and so it must appear upon the record. 5 Cranch,
172 Pet. C. C. R. 36; 4 Dall. 11; 2 Mass. 213; 4 Mass. 122; 8
Mass. 86; 11 Mass. 513; Pr. Dec. 380; 2 Verm. 329; 3 Verm.
114; 10 Conn. 514; 4 John. 292; 3 Yerg. 355; Walker, 75; 9
Cowen, 227; 5 Har. & John. 36; 1 Bailey, 459; 2 Bailey, 267.
But the legislature may, by a general or special law, provide
otherwise. Pet. C. C. R. 36. Vide 1 Salk. 414; Bac. Ab. Courts,
&c., C. D; Id. Prerogative, E 6; Merlin, Rep. h. t.; Ayl. Pat.
317, and the art. Competency. As to the force of municipal law
beyond the territorial jurisdiction of the state, see Wheat.
Intern. Law, part a, c. 2, §7, et seq.; Story, Confl. of Laws,
c. 2; Huberus, lib. 1, t. 3; 13 Mass. R. 4 Pard. Dr. Com. part.
6, t. 7, c. 2, §1; and the articles Conflict of Laws; Courts of
the United States. See generally, Bouv. Inst. Index, h. t.
JURISDICTION CLAUSE. That part of a bill in chancery which is
intended to give jnrisdiction of the suit to, the court, by a
general averment that the' acts complained of are contrary to
equity, and tend to the injury of the plaintiff, and that. he has
no remedy, or not a complete remedy, without the assistance of a
court of equity, is called the jurisdiction clause. Mitf. Eq. Pl.
by Jeremy, 43.
2. This clause is unnecessary, for if the court appear from the
bill, to have jurisdiction, the bill will be sustained without
this clause; and if the court have not jurisdiction, the bill
will be dismissed though the clause may be inserted. Story, Eq.
Pl. §34.
JURISPRUDENCE. The science of the law. By science here, is
understood that connexion of truths which is founded on
principles either evident in themselves, or capable of
demonstration; a collection of truths of the same kind, arranged
in methodical order. In a more confined sense, jurisprudence is
the practical science of giving a wise interpretation to the
laws, and making a just application of them to all cases as they
arise. In this sense, it is the habit of judging the same
questions in the same manner, and by this course of judgments
forming precedents. 1 Ayl. Pand. 3 Toull. Dr. Civ. Fr. tit. prel.
s. 1, n. 1, 12, 99; Merl. Rep. h. t.; 19 Amer. Jurist, 3.
JURIST. One well versed in the science of the law. The term i's
usually applied to students and practitioners of law.
JUROR, practice. From juro, to swear; a man who is sworn or
affirmed to serve on a jury.
2. Jurors are selected from citizens, and may be compelled to
serve by fine; they generally receive a compensation for their
services while attending court they are privileged from arrest in
civil cases.
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JURY. A body of men selected according to law, for the purpose
of deciding some controversy.
2. This mode of trial by jury was adopted soon after the
conquest of England, by William, and was fully established for
the trial of civil suits in the reign of Henry II. Crabb's C. L.
50, 61. In the old French law they are called inquests or tourbes
of ten men. 2 Loisel's Instit. 238, 246, 248.
3. Juries are either grand juries, (q. v.) or petit juries. The
former having been treated of elsewhere, it will only be
necessary to consider the latter. A petit jury consists of twelve
citizens duly qualified to serve on juries, impanneled and sworn
to try one or more issues of facts submitted to them, and to give
a judgment respecting the same, which is called a verdict.
4. Each one of the citizens so impanneled and sworn is called a
juror. Vide Trial.
5. The constitution of the United States directs, that "the
trial of all crimes, except in cases of impeachment, shall be by
jury;" and this invaluable institution is also, secured by the
several state constitutions. The constitution of the United
States also provides that in suits at common law, where the value
in controversy shall exceed twenty dollars, the right of trial by
jury shall be preserved. Amendm. VII.
6. It is scarcely practicable to give the rules established in
the different states to secure impartial juries; it may,
however, be stated that in all, the selection of persons who are
to serve on the jury is made by disinterested officers, and that
out of -the lists thus made out, the jurors are selected by lot.
JURY BOX. A place set apart for the jury to sit in during the
trial of a cause.
JURY LIST. A paper containing the names of jurors impanneled to
try a cause, or it contains the names of all the jurors summoned
to attend court.
JUS. Law or right. This term is applied in many modern phrases.
It is also used to signify equity. Story, Eq. Jur. §1; Bract,
lib. 1, c. 4, p. 3; Tayl. Civ. Law, 147; Dig. 1, 1, 1.
2. The English law, like the Roman, has its jus antiquum and
jus novum and jus novissimum. The jus novum may be supposed to
have taken its origin about the end of the reign of Henry VII. A.
D. 1509. It assumed a regular form towards the end of the reign
of Charles II. A. D. 1685, and from that period the jus
novissimum may be dated. Lord Coke, who was born 40 years after
the death of Henry VII. is most advantageously considered as the
connecting link of the jus antiquum and jus novissimum of English
law. Butler's Remin.
JUS ABUTENDI. The right to abuse. By this phrase is understood
the right to abuse property, or having full dominion over
property. 3 Toull. n. 86.
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JUS ACCRESCENDI. The right of survivorship.
2. At common law, when one of several joint tenants died, the
entire tenancy or estate went to the survivors, and so on to the
last survivor, who took an estate of inheritance. This right,
except in estates held in trust, has been abolished by statute in
Alabama, Delaware, Georgia, Illinois, Indiana, Kentucky,
Michigan, Missouri Mississippi, New York, North Carolina,
Pennsylvania, South-Carolina, Tennessee, and Virginia. Griff.
Reg. h. t.; 1 Hill. Ab. 439, 440. In Connecticut, 1 Root, Rep.
48; 1 Swift's Dig. 102. In Louisiana, this right was never
recognized. See 11 Serg. & R. 192; 2 Caines, Cas. Err. 326; 3
Verm. 543; 6 Monr. R. 15; Estate in common; Estate in joint
tenancy.
JUS AD REM. property, title. This phrase is applied to
designate the right a man has in relation to a thing; it is not
the right in the thing itself, but only against the person who
has contracted to deliver it. It is a mere imperfect or inchoate
right. 2 Bl. Com. 312 Poth. Dr. de Dom. de Propriete, ch. prel.
n. 1. This phrase is nearly equivalent to chose in action. 2
Wooddes. Lect. 235. See, 2 P. Wms. 491; 1 Mason, 221 1 Story,
Eq. Jur. 506; 2 Story, Eq. Jur. §1215; Story, Ag. §352; and
Jus in re.
JUS AQUAEDUCTUS, CIV. law. The name of a servitude which Lives
to the owner of land the right to bring down water through or
from the land of another, either from its source or from any
other place.
2. Its privilege may be limited as to the time when it may be
exercised. If the source fails, the servitude ceases, but revives
when the water returns. If the water rises in, or naturally flows
through the land, its proprietor cannot by any grant divert it so
as to prevent it flowing to the land below. 2 Roll. Ab. 140, l.
25; Lois des Bat. part. 1, c. 3, s. 1, art. 1. But if it had
been brought. into his land by artificial means, it seems it
would be, strictly his property, and that it would be in his
power to grant it. Dig. 8, 3, 1 & 10; 3 Burge on the Confl. of
Laws, 417. Vide Rain water.; River; Water-course.
JUS CIVILE. Among the Romans by jus civile was understood the
civil law, in contradistinction to the public law, or jus
gentium. 1 Savigny, Dr. Rom. c. 1, §1.
JUS CIVITATIS. Among the Romans the collection of laws which
are to be observed among all the members of a nation were so
called. It is opposed to jus gentium, which is the law which
regulates the affairs of nations among themselves. 2 Lepage, El.
du Dr. ch. 5, page l.
JUS CLOACAE, civil law. The name of a servitude which requires
the paity who is subject to it, to permit his neighbor to conduct
the waters which fall on his grounds over those of the servient
estate.
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JUS DARE. To give or to make the law. Jus dare belongs to the
legislature; jus dicere to the judge.
JUS DICERE. To declare the law. This word is used to explain
the power which the court has to expound the law; and not to
make it, jus dare.
JUS DELIBERANDI. The right of deliberating, which in some
countries, where the heir may have benefit of inventory, (q. v.)
is given to him to consider whether he will accept or renounce
the succession.
2. In Louisiana he is allowed ten days before he is required to
make his election. Civ. Code, art. 1028.
JUS DISPONENDI. The right to dispose of a thing.
JUS DUPLICATUM, property, title. When a man has the possession
as well as the property of anything, he is said to have a double
right, jus duplicatum. Bract. 1. 4, tr. 4, c. 4 2 Bl. Com. 199.
JUS FECIALE. Among the Romans it was that species of
international law which had its foundation in the religious
belief of different nations, such as the international law which
now exists among the Christian people of Europe. Sav. Dr. Rom.
ch. 2,
JUS FIDUCIARUM, Civil law. A right to something held in trust;
for this there was a remedy in conscience. 2 Bl. Com. 328.
JUS GENTIUM. The law of nations. (q. v.) Although the Romans
used these words in the sense we attach to law of nations, yet
among them the sense was much more extended. Falck, Encyc. Jur.
102, n. 42.
2. Some modern writers have made a distinction between the laws
of nations which have for their object the conflict between. the
laws of different nations, which they call jus gentium privatum,
or private international law; and those laws of nations which
regulate those matters which nations, as such, have with each
other, which is de nominated jus gentium publicum, or public
international law. Foelix, Droit Interm. Prive, n. 14.
JUS GLADII. Supreme jurisdiction. The right to absolve from, or
condemn a man to death.
JUS HABENDI. The right to have and enjoy a thing.
JUS INCOGNITUM. An unknown law. This term is applied by the
civilians to obsolete laws, which, as Bacon truly observes, are
unjust, for the law to be just must give warning before it
strikes. Bac. Aphor. 8, s. 1: Bowy. Mod. Civ. Law, 33. But until
it has become obsolete no custom can prevail against it. Vide
Obsolete.
JUS LEGITIMUM, civil law. A legal right which might have been
enforced by due course of law.. 2 Bl. Com. 328.
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JUS MARITI, Scotch law. The right of the hushand to administer,
during the marriage, his wife's goods and the rents of her
heritage.
2. In the common law, by jus mariti is understood the rights of
the hushand; as, jus mariti cannot attach upon a bequest to the
wife, although given during coverture, until the executor has
assented to the legacy. 1 Bail. Eq. R. 214.
JUS MERUM. A simple or bare right; a right to property in
land, without possession, or the right of possession.
JUS PATRONATUS, eccl. law. A commission from the bishop,
directed usually to his chancellor and others of competent
learning, who are required to summon a jury composed of six
clergymen and six laymen, to inquire into and examine who is the
rightful patron. 3 Bl. Com. 246.
JUS PERSONARUM. The right of persons.
2. A branch of the law which embraces the theory of the
different classes of men who exist in a state which has been
formed by nature or by society; it includes particularly the
theory of the ties of families, and the legal form and juridical
effects of the relations subsisting between them. The Danes, the
English, and the learned in this country, class under this head
the relations which exist between men in a political point of
view. Blackstone, among others, has adopted this classification.
There seems a confusion of ideas when such matters are placed
under this head. Vide Bl. Com. Book 1.
JUS PRECARIUM, civil law. A right to a thing held for another,
for which there was no remedy. 2 Bl. Com. 328.
JUS POSTLIMINII, property, title. The right to claim property
after re-capture. Vide, Postliminy; Marsh. Ins. 573; 1 Kent,
Com. 108. Dane's Ab. Index, h. t.
JUS PROJICIENDI, Civil law. The name of a servitude; it is the
right which the owner of a building has of projecting a part of
his building towards the adjoining house, without resting on the
latter. It is extended merely over the ground. Dig. 50, 16, 242,
1; Dig. 8, 2, 25; Dig. 8, 5, 8, 5.
JUS PROTEGENDI, civil law. The name of a servitude; it is a
right by which a part of the roof or tiling of one house is made
to extend over the adjoining house. Dig. 50, 16, 242, 1 Dig. 8,
2, 25; Dig. 8, 5, 8, 5.
JUS QUAESITUM. A right to ask or recover; for example, in an
obligation there is a binding of the obligor, and a jus quaesitum
in the obligee. 1 Bell's Com. 323, 5th ed.
JUS IN RE, property, title. The right which a man has in a
thing by which it belongs to him. It is a complete and full
right. Poth. Dr. de Dora. de Prop. n. 1.
2. This phrase of the civil law conveys the same idea as thing,
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in possession does with us. 4 Wooddes. Lect. 235; vide 2 P.
Wins. 491; 1 Mason, 221; 1 Story, Eq. Jur. §506; 2 Story, Eq.
Jur. §1215; Story, Ag. §352; and Jus ad rem.
JUS RELICTA, Scotch law. The right of a wife, after her
hushand's death, to a third of movables, if there be children;
and to one-half, if there be none.
JUS RERUM. The right of things. Its principal object is to
ascertain how far a person can have a permanent dominion over
things, and how that dominion is acquired. Vide Bl. Com. Book 2.
JUS STRICTUM. A Latin phrase, which signifies law interpreted
without any modification, and in its utmost rigor.
JUS UTENDI. The right to use property, without destroying its
substance. It is employed in contradistinction to the jus
abutendi. (q. v.) 3 Toull. n. 86.
JUST. This epithet is applied to that which agrees with a given
law which is the test of right and wrong. 1 Toull. prel. n. 5
Aust. Jur. 276, n. It is that which accords with the perfect
rights of others. Wolff, Inst. §83; Swinb. part 1, s. 2, n. 5,
and part 1, §4, n. 3. By just is also understood full and
perfect, as a just weight Swinb. part 1, s. 3, U. 5.
JUSTICE. The constant and perpetual disposition to render every
man his due. Just. Inst. B. 1, tit. 1. Toullier defines it to be
the conformity of our actions and our will to the law. Dr. Civ.
Fr. tit. prel. n. 5. In the most extensive sense of the word, it
differs little from virtue, for it includes within itself the
whole circle of virtues. Yet the common distinction between them
is that that which considered positively and in itself, is called
virtue, when considered relatively and with respect to others,
has the name of justice. But justice being in itself a part of
virtue, is confined to things simply good or evil, and consists
in a man's taking such a proportion of them as he ought.
2. Justice is either distributive or commutative. Distributive
justice is that virtue whose object is to distribute rewards and
punishments to each one according to his merits, observing a just
proportion by comparing one person or fact with another, so that
neither equal persons have unequal things, nor unequal persons
things equal. Tr. of Eq. 3, and Toullier's learned note, Dr. Civ.
Fr. tit. prel. n. 7, note.
3. Commutative justice is that virtue whose object it is to
render to every one what belongs to him, as nearly as may be, or
that which governs contracts. To render commutative justice, the
judge must make an equality between the parties, that no one may
be a gainer by another's loss. Tr. Eq. 3.
4. Toullier exposes the want of utility and exactness in this
division of distributive and commutative justice, adopted in the
compendium or abridgments of the ancient doctors, and prefers the
division of internal and external justice; the first being a
conformity of our will, and the latter a conformity of our
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actions to the law: their union making perfect justice. Exterior
justice is the object of jurisprudence; interior justice is the
object of morality. Dr. Civ. Fr. tit. prel. n. 6 et 7.
5. According to the Frederician code, part 1, book 1, tit. 2,
s. 27, justice consists simply in letting every one enjoy the
rights which he has acquired in virtue of the laws. And as this
definition includes all the other rules of right, there is
properly but one single general rule of right, namely, Give every
one his own. See, generally, Puffend. Law of Nature and Nations,
B. 1, c. 7, s. 89; Elementorum Jurisprudentiae Universalis, lib.
1, definito, 17, 3, 1; Gro. lib. 2, c. 11, s. 3; Ld. Bac. Read.
Stat. Uses, 306; Treatise of Equity, B. 1, c. 1, s. 1.
JUSTICES. Judges. Officers appointed by a competent authority
to administer justice. They are so called, because, in ancient
times the Latin word for judge was justicia. This term is in
common parlance used to designate justices of the peace.
JUSTICES IN EYRE. They were certain judges established if not
first appointed, A. D. 1176, 22 Hen. II. England was divided into
certain circuits, and three justices in eyre, or justices
itinerant, as they were sometimes called, were appointed to each
district, and made the circuit of the kingdom once in seven years
for the purpose of trying causes. They were afterwards directed
by Magna Charta, c. 12, to be sent into every county once a year.
The itinerant justices were sometimes mere justices of assize or
dower, or of general gaol delivery, and the like. 3 Bl. Com.
58-9; Crabb's Eng. Law, 103-4. Vide Eire.
JUSTICES OF THE PEACE. Public officers invested with judicial
powers for the purpose of preventing breaches of the peace, and
bringing to punishment those who have violated the law.
2. These officers, under the Constitution of the United States
and some of the states, are appointed by the executive in others,
they are elected by the people, and commissioned by the
executive. In some states they hold their office during good
behaviour, in others for a limited period.
3. At common law, justices of the peace have a double power in
relation to the arrest of wrong doers; when a felony or breach
of the peace has been committed in their presence, they may
personally arrest the offender, or command others to do so; and
in order to prevent the riotous consequences of a tumultuous
assembly, they may command others to arrest affrayers, when the
affray has been committed in their presence. If a magistrate be
not present when a crime is committed, before he can take a step
to arrest the offender, an oath or affirmation must be made by
some person cognizant of the fact that the offence has been
committed, and that the person charged is the offender, or there
is probable cause to believe that he has committed the offence.
4. The Constitution of the United States directs, that "no
warrants shall issue, but upon probable cause, supported by oath
or affirmation." Amendm. IV. After his arrest, the person charged
is brought before the justice of the peace, and after bearing he
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is discharged, held to bail to answer to the complaint, or, for
want of bail, committed to prison.
5. In some, perhaps all the United States, justices of the
peace have jurisdiction in civil cases, given to them by local
regulations. In Pennsylvania, their jurisdiction in cases of
contracts, express or implied, extends to one hundred dollars.
Vide, generally, Burn's Justice; Graydon's Justice Baches Manual
of a Justice of the Peace Com. Dig. h. t.; 15 Vin. Ab. 3; Bac.
Ab. h. t.; 2 Sell. Pr. 70; 2 Phil. Ev. 239; Chit. Pr. h. t.;
Amer. Dig. h. t.
JUSTICIAR, or JUSTICIER. A judge, or justice the same as
justiciary.
JUSTICIARII ITINERANTES, Eng. law. They were formerly justices,
who were so called because they went from county to county to
administer justice. They were usually called justices in eyre,
(q. v.) to distinguish them from justices residing at
Westminster, who were called justicii residentes. Co. Litt. 293.
Vide Itinerant.
JUSTICIARII RESIDENTES, Eng. law. They were justices or judges,
who usually resided in Westminster; they were so called to
distinguish them from justices in eyre. Co. Litt. 293. Vide
Justiciarii Itinerantes.
JUSTICIARY, officer. Another name for a judge. In Latin, he was
called justiciciarius, and in French, justicier. Not used. Bac.
Ab. Courts and their Jurisdiction, A.
JUSTICIES, Eng. law. The name of a writ which acquires its name
from the mandatory words which it contains, "that you do A B
justice."
2. The county court has jurisdiction in cases where damages are
claimed, only to a certain amount; but sometimes suits are
brought there, when greater damages are claimed. In such cases,
an original writ, by this name, issues out of chancery, in order
to give the court jurisdiction. See 1 Saund. 74, n. 1.
JUSTIFIABLE HOMICIDE. That which is committed with the
intention to kill, or to do a grievous bodily injury, under
circumstances which the law holds sufficient to exculpate the
person who commits it.
2. It is justifiable, 1. When a judge or other magistrate acts
in obedience to the law. 2. When a ministerial officer acts in
obedience to a lawful warrant, issued by a competent tribunal. 3.
When a subaltern officer, or soldier, kills in obedience to the
lawful commands of his superior. 4. When the party kills in
lawful self-defence.
3. - §1. A judge who, in pursuance of his duty, pronounces
sentence of death, is not guilty of homicide; for it is evident,
that as the law prescribes the punishment of death for certain
offences, it must protect those who are entrusted with its
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execution. A judge, therefore, who pronounces sentence of death,
in a legal manner, on a legal indictment, legally brought before
him, for a capital offence committed within his jurisdiction,
after a lawful trial and conviction, of the defendant, is guilty
of no offence.
4. - 2. Magistrates, or other officers entrusted with the
preservation of the public peace, are justified in committing
homicide, or giving orders which lead to it, if the excesses of a
riotous assembly cannot be otherwise be repressed.
5 - §2. An officer entrusted with a legal warrant, criminal or
civil, and lawffully commanded by a competent tribunal to execute
it, will be justified in committing homicide, if, in the course
of advancing to discharge his duty, he be brought into such
perils that, without doing so, he cannot either save his life, or
discharge the duty which he is commanded by the warrant to
perform. And when the warrant commands him to put a criminal to
death, he is justified in obeying it.
6. - §3. A soldier on duty is justified in committing homicide,
in obedience to the command of his officer, unless the command
was something plainly unlawful.
7. - §4. A private individual will, in many cases, be justified
in committing homicide, while acting in self-defence. See
Self-defence. Vide, generally, 1 East, P. C. 219; Hawk. B. 1, c.
28, s. 1, n. 22; Allis. Prin. 126-139; 1 Russ. on Cr. 538;
Bac. Ab. Murder, &c., E; 2 Wash. C. C. 515; 4 Mass. 891; 1
Hawkes, 210; 1 Coxes R. 424; 5 Yerg. 459; 9 C. & P. 22; S. C.
38 Eng. C. L. R. 20.
JUSTIFICATION. The act by which a party accused shows and
maintains a good and legal reason in court, why he did the thing
he is called upon to answer.
2. The subject will be considered by examining, 1. What acts
are justifiable. 2. The manner of making the justification. 3.
Its effects.
3. - §1. The acts to be justified are those committed with a
warrant, and those committed without a warrant. 1. It is a
general rule, that a warrant or execution, issued by a court
haviug jurisdiction, whether the same be right or wrong,
justifies the officer to whom it is directed and who is by law
required to execute it, and is a complete justification to the
officer for obeying its command. But when the warrant is not
merely voidable, but is absolutely void, as, for want of
jurisdiction in the court which issued it, or by reason of the
privilege of the defendant, as in the case of the arrest of an
ambassador, who cannot waive his privilege and immunities by
submitting to be arrested on such warrant, the officer is no
longer justified. 1 Baldw. 240; see 4 Mass. 232; 13 Mass. 286,
334; 14 Mass. 210. 2. A person may justify many acts, while
acting without any authority from a court or magistrate. He may
justifiably, even, take the life of an aggressor, while acting in
the defence of himself, his wife, children, and servant, or for
Bouvier's Law Dictionary : JK : Page 30 of 36
the protection of his house, when attacked with a felonious
intent, or even for the protection of his personal property. See
Self-defence. A man may justify what would, otherwise, have been
a trespass, an entry on the land of another for various purposes;
as, for example, to demand a debt due to him by the owner of the
land to remove chattels which belong to him, but this entry must
be peaceable; to exercise an incorporeal right; ask for
lodging's at an inn. See 15 East, 615, note e; 2 Lill. Ab. 134;
15 Vin. Ab. 31; Ham. N. P. 48 to 66; Dane's Ab. Index, h. t.;
Entry. It is an ancient principle of the common law, that a
trespass may be justified in many cases. Thus: a man may enter
on the land of another, to kill a fox or otter, which are beasts
against the common profit. 11 H. VIII. 10. So, a house may be
pulled down if the adjoining one be on fire, to prevent a greater
destruction. 13 H. VIII. 16, b. Tua res agitur paries cum
proximus ardet. So, the suburbs of a city may be demolished in
time of war, for the good of the commonwealth. 8 Ed. IV. 35, b.
So, a man may enter on his neighbor to make a bulwark in defence
of the realm. 21 H. VIII. b. So, a house may be broken to arrest
a felon. 13 Ed. IV. 9, a; Dodd. Eng. Lawy. 219, 220. In a civil
action, a man may justify a libel, or slanderous words, by
proving their truth, or because the defendant had a right, upon
the particular occasion, either to write and publish the writing,
or to utter the words; as, when slanderous words are found in a
report of a committee of congress, or in an indictment, or words
of a slanderous nature are uttered in the course of debate in the
legislature by a member, or at the bar, by counsel, when properly
instructed by his client on the subject. See Debate; Slander;
Com. Dig. Pleader, 2 L 3 to 2 L 7.
4.- §2. In general, justification must be specially pleaded,
and it cannot be given in evidence under the plea of the general
issue.
5. - §3. When the plea of justification is supported by the
evidence, it is a complete bar to the action. Vide Excuse.
JUSTIFICATORS. A kind of compurgators, or those who, by oath,
justified the innocence or oaths of others, as in the case of
wagers of law.
JUSTIFYING BAIL, practice. The production of bail in court, who
there justify themselves Against the exception of the plaintiff.
K.
KENTUCKY. The name of one of the new states of the United
States of America.
2. This state was formerly a part of Virginia, and the latter
state, by an act of the legislature, passed December 18, 1789,
"consented that the district of Kentucky, within the jurisdiction
of the said commonwealth, and according to its actual bounda-
ries at the time of passing the act aforesaid, should be formed
into a new state." By the act of congress of February. 4, 1791, 1
Bouvier's Law Dictionary : JK : Page 31 of 36
Story's L. U. S. 168, congress consented that, after the first
day of June, 1792, the district of Kentucky should be formed into
a new state, separate from and independent of the commonwealth of
Virginia. And by the second section it is enacted, that upon the
aforesaid first day of June, 1792, the said new state, by the
name and style of the state of Kentucky shall be received and
admitted into the Union, as a new and entire member of the United
States of America.
3. The constitution of this state was adopted August 17, 1799.
The powers of the government are divided into three distinct
departments, and each of them is confided to a separate body of
magistracy, to wit: those which are legislative, to one; those
which are executive, to another; and those which are judicial,
to another.
4. - 1. The legislative power is vested in two distinct
branches; the one styled the house of representatives, and the
other the senate; and both together, the general assembly of the
commonwealth of Kentucky. 1. The house of representatives is
elected yearly, and consists of not less than fifty-eight, nor
more than one hundred members. 2. The members of the senate are
elected for four years. The senate consists of twenty-four
members, at least, and for every three members above fifty-eight
which shall be added to the house of representatives, one member
shall be added to the senate.
5. - 2. The executive power is vested in a chief magistrate,
who is styled the governor of the commonwealth of Kentucky. The
governor is elected for four years. He is commander-in-chief of
the army and navy of the commonwealth, except when called into
actual service of the United States. He nominates, and, with the
consent of the senate, appoints all officers, except those whose
appointment is otherwise provided for. He is invested with the
pardoning power, except in certain cases, as impeachment and
treason. A lieutenant-governor is chosen at every election of
governor, in the same manner, and to continue in office for the
same time as the governor. He is ex officio, speaker of the
senate, and acts as governor when the latter is impeached, or
removed from office, or dead, or refuses to qualify, resigns, or
is absent from the state.
6. - 3. The judicial power, both as to matters of law and
equity, is vested in one supreme court, styled the court of
appeals, and in such inferior courts as the general assembly may,
from time to time, erect and establish. The judges hold their
office during good behaviour.
KEY. An instrument made for shutting and opening a lock.
2. The keys of a house are considered as real estate, and
descend to the heir with the inheritance. But see 5 Blackf. 417.
3. When the keys of a warehouse are delivered to a purchaser of
goods locked up there, with a view of effecting a delivery of
such goods, the delivery is complete. The doctrine of the civil
law is the same. Dig. lib. 41, t. 1, 1. 9, §6; and lib. 18, t.
1, 1. 74.
Bouvier's Law Dictionary : JK : Page 32 of 36
KEY, estates. A wharf at which to land goods from, or to load
them in a vessel. This word is now generally spelled Quay, from
the French, quai.
KEYAGE. A toll paid for loading and unloading merchandise at a
key or wharf.
KEELAGE. The right of demanding money for the bottom of ships
resting in a port or harbor. The money so paid is also called
keelage.
KEELS. This word is applied, in England, to vessels employed in
the carriage of coals. Jacob, L. D.
KIDNAPPING. The forcible and unlawful abduction and conveying
away of a man, woman, or child, from his or her home, without his
or her will or consent, and sending such person away, with an
intent to deprive him or her of some right. This is an offence at
common law.
KILDERKIN. A measure of capacity equal to eighteen gallons. See
Measure.
KINDRED. Relations by blood.
2. Nature has divided the kindred of every one into three
principal classes. 1. His children, and their descendants. 2. His
father, mother, and other ascendants. 3. His collateral
relations; which include, in the first place, his brothers and
sisters, and their descendants and, secondly, his uncles,
cousins, and other relations of either sex, who have not
descended from a brother or sister of the deceased. All kindred
then are descendants, ascendants, or collaterals. A hushand or
wife of the deceased, therefore, is not his or her kindred. 14
Ves. 372. Vide Wood's Inst. 50; Ayl. Parerg. 325; Dane's Ab. h.
t.; Toll. Ex. 382, 8; 2 Chit. Bl. Com. 16, n. 59 Poth. Des
Successions, c. 1, art. 3.
KING. The chief magistrate of a kingdom, vested usually with
the executive power.
2. The following table of the reigns of English and British
kings and queens, commencing with the Reports, is added, to
assist the student in many points of chronology.
Accession.
Henry III.............................................. 1216
Edward I............................................... 1272
Edward II.............................................. 1307
Edward III............................................. 1307
Richard II............................................. 1377
Henry IV.............................................. 1399
Henry V............................................... 1413
Henyv VI.............................................. 1422
Edward IV............................................. 1461
Edward V.............................................. 1483
Richard III........................................... 1483
Henry VII............................................. 1485
Henry VIII............................................ 1509
Edward VI............................................. 1547
Mary.................................................. 1553
Elizabeth............................................. 1558
James I............................................... 1603
Charles I............................................. 1625
Charles II............................................ 1660
James II.............................................. 1685
William III........................................... 1689
Anne.................................................. 1702
George I.............................................. 1714
George II............................................. 1727
George III............................................ 1760
George IV............................................. 1820
William IV............................................ 1830
Victoria.............................................. 1837
Vide article Reports.
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KING'S BENCH. The name of the supreme court of law in England.
It is so called because formerly the king used to sit there in
person, the style of the court being still coram ipso rege,
before the king himself. During the reign of a queen, it is
called the Queen's Bench, and during the protectorate of
Cromwell, it was called the Upper Bench. It consists of a chief
justices and three other judges, who are, by their office, the
principal coroners and conservators of the peace. 3 Bl. Com. 41.
2. This court has jurisdiction in criminal matters, in civil
causes, and is a supervisory tribunal to keep other jurisdictions
within their proper bounds.
3. - 1. Its criminal jurisdiction extends over all offenders,
and not only over an capital offences but also over another
misdemeanors of a public nature; it being considered the custos
morum of the realm. Its jurisdiction is so universal that an act
of parliament appointing that all crimes of a certain
denomination shall be tried before certain judges, does not
exclude the jurisdiction of this court, without negative words.
It may also proceed on indictments removed into that court out of
the inferior courts by certiorari.
4. - 2. Its civil jurisdiction is against the officers or
ministers of the court entitled to its privilege. 2 Inst. 23; 4
Inst. 71; 2 Bulstr. 123. And against prisoners for trespasses.
In these last cases a declaration may be filed against them in
debt, covenant or account: and this is done also upon the notion
of a privilege, because the common pleas could not obtain or
procure the prisoners of the king's bench to appear in their
court.
5. - 3. Its supervisory powers extend, 1. To issuing writs of
error to inferior jurisdictions, and affirming or reversing their
judgments. 2. To issuing writs of mandamus to compel inferior
officers and courts to perform the duties required of them by
law. Bac. Ab. Court of King's Bench.
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KINGDOM. A country where an officer called a king exercises the
powers of government, whether the same be absolute or limited.
Wolff, Inst. Nat. §994. In some kingdoms the executive officer
may be a woman, who is called a queen.
KINTLIDGE, merc. law. This term is used by merchants and
seafaring men to signify a ship's ballast. Mere. Dict.
KIRBY'S QUEST. An ancient record remaining with the
remembrancer of the English Exchequer, so called from being the
inquest of John De Kirby, treasurer to Edward I.
KISSING. Kissing the bible is a ceremony used in taking the
corporal oath, the object being, as the canonists say, to denote
the assent of the witness to the oath in the form it is imposed.
The witness kisses either the whole bible, or some portion of it;
or a cross in some countries. See the cerermony explained in
Oughton's Ord. Tit. Consitt. on Courts, part 3, sect. 1, §3
Junkin on the Oath, 173, 180; 2 Evan's Pothier, 234.
KNAVE. A false, dishonest, or deceitful person. This
signification of the word has arisen by a long perversion of its
original meaning.
2. To call a man a knave has been held to be actionable. 1
Rolle's Ab. 52; 1 Freem. 277.,
KNIGHT'S FEE, old Eng. law. An uncertain measure of land, but,
according to some opinions it is said to contain six hundred and
eighty acres. Co. Litt. 69, a.
KNIGHT'S SERVICE, Eng. law. It was, formerly, a tenure of
lands. Those who held by knight's service were called: milites
qui per loricas terras suas defendunt;: soldiers who defend the
country by their armor. The incidents of knight's service were.
homage, fealty, warranty, wardship, marriage, reliefs, heriots,
aids, escheats, and forfeiture. Vide Socage.
KNOWINGLY, pleadings. The word knowingly," or "well knowing,"
will supply the place of a positive averment in an indictment or
declaration, that the defendant knew the facts subsequently
stated; if notice or knowledge be unnecessarily stated, the
allegation may be rejected as surplusage. Vide Com. Dig.
Indictment, G 6; 2 Stra. 904; 2 East, 452; 1 Chit. Pl. *367;
Vide Scienter.
KNOWLEDGE. Information as to a fact.
2. Many acts are perfectly innocent when the party performing
them is not aware of certain circumstances attending them for
example, a man may pass a counterfeit note and be guiltless, if
he did not know it was so he may receive stolen goods if he were
not aware of the fact that they were stolen. In these and the
like cases it is the guilty knowledge which makes the crime. See,
as to the manner of proving guilty knowledge, Archb. Cr. Pl. 110,
111. Vide Animal. Dog; Evidence ignorance; Scienter .
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END OF VOLUME I.
Bouvier's Law Dictionary : JK : Page 36 of 36
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