M:
M. When persons were convicted of manslaughter in England, they
were formerly marked with this letter on the brawn of the thumb.
2. This letter is sometimes put on the face of treasury notes
of the United States, and signifies that the treasury note bears
interest at the rate of one mill per centum, and not one per
centum interest. 13 Peters, 176.
MACE-BEARER, Eng. law. An officer attending the court of
session.
MACEDONIAN DECREE, civil law. A decree of the Roman senate,
which derived its name from that of a certain usurer who was the
cause of its being made, in consequence of his exactions. It was
intended to protect sons who lived under the paternal
jurisdiction, from the unconscionable contracts which they
sometimes made on the expectations after their fathers' deaths;
another, and perhaps, the principle object, was to cast odium on
the rapacious creditors. It declared such contracts void. Dig.
14, 6, 1; Domat, Lois, Civ. liv. 1, tit. 6, §4; Fonbl. Eq . B.
1, c. 2, §12, note. Vide Catching bargain; Post obit.
MACHINATION. The act by which some plot or conspiracy is set on
foot.
MACHINE. A contrivance which serves to apply or regulate moving
power; or it is a tool more or less complicated, which is used
to render useful natural instruments, Clef. des Lois Rom. h. t.
2. The act of congress gives to inventors the right to obtain a
patent right for any new and useful improvement on any art,
machine, manufacture, &c. Act of congress, July 4, 1836, s. 6.
See Pet. C. C. 394; 3 Wash. C. C. 443; 1 Wash. C. C. 108; 1
Wash. C. C. 168; 1 Mason, 447; Paine, 300; 4 Wash. C. C. 538;
1 How. U. S., 202; S. C. 17 Pet. 228; 2 McLean, 176.
MADE KNOWN. These words are used as a return to a scire facias,
when it has been served on the defendant.
MAGISTER. A master, a ruler, one whose learning and position
makes him su- perior to others, thus: one who has attained to a
high degree, or eminence, in science and literature, is called a
master; as, master of arts.
MAGISTER AD FACULTATES, Eng. eccl. law. The title of an officer
who grants dispensations; as, to marry, to eat flesh on days
prohibited, and the like. Bac. Ab. Eccles. Courts, A 5.
MAGISTER NAVIS. The master of a ship; a sea captain.
MAGISTER SOCIETATIS, Civil law. The principal manager of the
business of a society or partnership.
MAGISTRACY, mun. law. In its most enlarged signification, this
term includes all officers, legislative, executive, and judicial.
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For example, in most of the state constitutions will be found
this provision; "the powers of the government are divided into
three distinct departments, and each of these is confided to a
separate magistracy, to wit: those which are legislative, to
one; those which are executive, to another; and those which are
judiciary, to another." In a more confined sense, it signifies
the body of officers whose duty it is to put the laws in force;
as, judges, justices of the peace, and the like. In a still
narrower sense it is employed to designate the body of justices
of peace. It is also used for the office of a magistrate.
MAGISTRATE, mun. law. A public civil officer, invested with
some part of the legislative, executive, or judicial power given
by the constitution. In a narrower sense this term includes only
inferior judicial officers, as justices of the peace.
2. The president of the United States is the chief magistrate
of this nation; the governors are the chief magistrates of their
respective states.
3. It is the duty of all magistrates to exercise the power,
vested in them for the good of the people, according to law, and
with zeal and fidelity. A neglect on the part of a magistrate to
exercise the functions of his office, when required by law, is a
misdemeanor. Vide 15 Vin. Ab. 144; Ayl. Pand. tit. 22; Dig. 30,
16, 57; Merl. Rep. h. t.; 13 Pick. R. 523.
MAGNA CHARTA. The great charter. The name of an instrument
granted by King John, June 19, 1215, which secured to the English
people many liberties which had before been invaded, and provided
against many abuses which before rendered liberty a mere name.
2. It is divided into thirty-eight chapters,: 1. To the which
relate as follows, namely: freedom of the church and
ecclesiastical persons. 2. To the nobility, knights' service, &c.
3. Heirs and their being in ward. 4. Guardians for heirs within
age, who are to commit no waste. 5. To the land and other
property of heirs, and the delivery of them up when the heirs are
of age. 6. The marriage of heirs. 7. Dower of women in the lands
of their husbands. 8. Sheriffs and their bailiffs. 9. To the
ancient liberties of London and other cities. 10. To distress for
rent. 11. The court of common pleas, which is to be located. 12.
The assise on disseisin of lands. 13. Assises of darein
presentments, brought by ecclesiastics. 14. The amercement of a
freeman for a fault. 15. The making of bridges by towns. 16.
Provisions for repairing sea banks and sewers. 17. Forbids
sheriffs and coroners to hold pleas of the crown. 18. Prefers the
king's debt when the debtor dies insolvent. 19. To the purveyance
of the king's house. 20. To the castleguard. 21. To the manner of
taking property for public use. 22. To the lands of felons, which
the king is to have for a year and a day, and afterwards the lord
of the fee. 23. To weirs which are to be put down in rivers. 24.
To the writ of praecipe in capite for lords against tenants
offering wrong, &c. 25. To measures. 26. To inquisitions of life
and member, which are to be granted freely. 27. To knights'
service and other ancient tenures. 28. To accusations, which must
be under oath. 29. To the freedom of the subject. No freeman
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shall be disseised of his freehold, imprisoned and condemned, but
by judgment of his peers, or by the law of the land. 30. To
merchant strangers, who are to be civilly treated. 31. To
escheats. 32. To the power of selling land by a freeman, which is
limited. 33. To patrons of abbeys, &c. 34. To the right of a
woman to appeal for the death of her husband. 35. To the time of
holding courts. 36. To mortmain. 37. To escuage and subsidy. 88.
Confirms every article of the charter. See a copy of Magna Charta
in 1 Laws of South Carolina; edited by Judge Cooper, p. 78. In
the Penny Magazine for the year 1833, page 229, there is a copy
of the original seal of King John, affixed to this instrument,
and a specimen of a facsimile of the writing of Magna Charta,
beginning at the passage, Nullus liber homo capietur vel
imprisonetur, &c. A copy of both may be found in the Magazin
Pittoresque, for the year 1834, p. 52, 53. Vide 4 Bl. Com. 423.
MAIDEN. The name of an instrument formerly used in Scotland for
beheading criminals.
MAIL. This word, derived from the French malle, a trunk,
signifies the bag, valise, or other contrivance used in conveying
through the post office, letters, packets, newspapers, pamphlets,
and the like, from place to place, under the authority of the
United States. The things thus carried are also called the mail.
2. The laws of the United States have provided for the
punishment of robberies or wilful injuries to the mail; the act
of March 3, 1825, 3 Story's Laws U. S. 1985, provides-
§22. That if any person shall rob any carrier of the mail of
the United States, or other person entrusted, therewith, of such
mail, or of part thereof, such offender or offenders shall, on
conviction, be imprisoned not less than five years, nor exceeding
ten years; and, if convicted a second time of a like offence, he
or they shall suffer death; 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 or offenders shall suffer
death. And if any person shall at- tempt to rob the mail of the
United States, by assaulting the person having custody thereof,
shooting at him, or his horse or mule, or, threatening him with
dangerous weapons, and the robbery is not effected, every such
offender, on conviction thereof, shall be punished by
imprisonment, not less than two years, nor exceeding ten years.
And, if any person shall steal the mail, or shall steal or take
from, or out of, any mail, or from, or out of, any post office,
any letter or packet; or, if any person shall take the mail, or
any letter or packet therefrom, or from any post office, whether
with or without the consent of the person having custody thereof,
and shall open, embezzle, or destroy any such; mail, letter, or
packet, the same containing any articles of value, or evidence of
any debt, due, demand, right, or claim, or any release, receipt,
acquittance, or discharge, or any other articles, paper, or
thing, mentioned and described in the twenty-first section of
this act; or, if any person shall, by fraud or deception, obtain
from any person having custody thereof, any mail, letter, or
packet, containing any article of value, or evidence thereof, or
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either of the writings referred to, or next above mentioned, such
offender, or offenders, on conviction thereof, shall be
imprisoned not less than two, nor exceeding ten years. And if any
person shall take any letter, or packet, not containing any
article of value, or. evidence thereof, out of a post office, or
shall open any letter or packet, which shall have been in a post
office, or in custody of a mail carrier, before it shall have
been de-livered to the person to whom it is directed, with a
design to obstruct the correspondence, to pry into another's
business or secrets; or shall secrete, embezzle, or destroy, any
such mall, letter, or packet, such offender, upon conviction,
shall pay, for every such offence, a sum not exceeding five
hundred dollars, and be imprisoned not exceeding twelve months.
3. - §23. That, if any person shall rip, cut, tear, burn, or
otherwise injure, any valise, portmanteau, or other bag used, or
designed to be used, by any person acting under the authority of
the postmaster general, or any person in whom his powers are
vested in a conveyance of any mail, letter packet, or newspaper,
or pamphlet, or shall draw or break any staple, or loosen any
part of any lock, chain, or strap, attached to, or belonging to
any such valise, portmanteau, or bag, with an intent to rob, or
steal any mail, letter, packet, newspaper, or pamphlet, or to
render either of the same insecure, every such offender, upon
conviction, shall, for every such offence, pay a sum, not less
than one hundred dollars, nor exceeding five hundred-dollars, or
be imprisoned not leas than one year, nor exceeding three years,
at the discretion of the court before whom such conviction is
had.
4. - §24. That every person who, from and after the passage of
this act, shall procure, and advise, or assist, in the doing or
perpetration of any of the acts or crimes by this act forbidden,
shall be subject to the same pen-alties and punishments as the
persons are subject to, who shall actually do or perpetrate any
of the said acts or crimes, according, to the provision of this
act.
5.- §25. That every person who shall be imprisoned by a
judgment of court, under and by virtue of the twenty-first,
twenty-second, twenty-third, or, twenty-fourth sections of this
act, shall be kept at hard labor during the period of such
imprisonment.
MAILE, ancient English law. A small piece of money; it also
signified a rent, because the rent was paid with maile.
MAIM, pleadings. This is a technical word necessary to be
introduced into all indictments for mayhem; the words
"feloniously did maim," must of necessity be inserted, because no
other word, or any circumlocution, will answer the same purpose.
4 Inst. 118; Hawk. B. 2, c. 23, s. 17, 18, 77; Hawk. B. 2, c.
25, s, 55; 1 Chit. Cr. Law, *244.
TO MAIM, crim. law. To deprive a person of such part of his
body as to ren- der him less able in fighting or defending
himself than he would have otherwise been. Vide Mayhem.
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MAINE. One of the new states of the United State's of America.
This state was admitted into the Union by the Act of Congress of
March 3, 1820, 3 Story's L. U . S. 1761, from and after the
fifteenth day of March, 1820, and is thereby declared to be one
of the United States of America, and admitted into the Union on
an equal footing with the original states in all respects
whatever.
2. The constitution of this state was adopted October 29th,
1819. The powers of the government are vested in three distinct
departments, the legislative, executive and judicial.
3. - 1. The legislative power is vested in two distinct
branches, a house of representatives and senate, each to have a
negative on the other, and both to be styled The legislature of
Maine. 1. The house of representatives is to consist of not less
than one hundred, nor more than two hundred members; to be
apportioned among the counties according to law; to be elected
by the quali-fied electors for one year from the next day
preceding the annual meeting of the legislature. 2. The senate
consists of not less than twenty, nor more than thirty-one
members, elected at the same time, and for the same term, as the
representatives, by the qualified electors of the districts into
which the state shall, from time to time, be divided. Art. 4,
part 2, s. 1. The veto power is given to the governor, by art. 4,
part 3, s. 2.
4. - 2. The supreme executive power of the state is vested in a
governor, who is elected by the qualified electors, and holds his
office one year from the first Wednesday of January in each year.
On the first Wednesday of January annually, seven persons,
citizens of the United States, and resident within the state, are
to be elected by joint ballot of the senators and representatives
in convention, who are called the council. This council is to
advise the governor in the executive part of government, art. 5,
part 2, s. 1 and 2.
5. - 3. The judicial power of the State is distributed by the
6th article of the constitution as follows:
6. - §1. The judicial power of this state shall be vested in a
supreme judicial court, and such other courts as the legislature
shall, from time to time, establish.
7. - §2. The justices of the supreme judicial court shall, at
stated times, receive a compensation, which shall not be
diminished during their continuance in office, but they shall
receive no other fee or reward.
8. - §3. They shall be obliged to give their opinion upon
important questions of law, and upon solemn occasions, when
required by the governor, council, senate, or house of
representatives.
9. - §4. All judicial officers; except justices of the peace,
shall hold their offices during good behaviour, but not beyond
the age of seventy years.
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10. - §5. Justices of the peace and notaries public shall hold
their offices during seven years, if they so long behave
themselves well, at the expiration of which term, they may be
re-appointed, or others appointed, as the public interest may
require.
11. - §6. The justices of the supreme judicial court shall bold
no office under the United States, nor any state, nor any other
office under this state, except that of justice of the peace.
For a history of the province of Maine, see 1 Story on the
Const. §82.
MAINOUR, crim. law. The thing stolen found in the hands of the
thief who has stolen it; hence when a man is found with
property which he has stolen, he is said to be taken with the
mainour, that is, it is found in his hands.
2. Formerly there was a distinction made between a larceny,
when the thing stolen was found in the hands of the criminal, and
when the proof depended upon other circumstances not quite so
irrefragable; the former properly was termed pris ove maynovere,
or ove mainer, or mainour, as it is generally written. Barr. on
the Stat. 315, 316, note:
MAINPERNABLE. Capable of being bailed; one for whom bail may
be taken; bailable.
MAINPERNORS, English law. Those persons to whom a man, is
delivered out of custody or prison, on their becoming bound for
his appearance.
2. Mainpernors differ from bail: a man's bail may imprison or
surrender him up before the stipulated day of appearance;
mainpernors can do neither, but are merely sureties for his
appearance at the day; bail are only sureties that the party be
answerable for all the special matter for which they stipulate;
mainpernors are bound to produce him to answer all charges
whatsoever. 3. Bl. Com. 128; vide Dane's Index, h. t.
MAINPRISE, Engl. law. The taking a man into friendly custody,
who might otherwise be committed to prison, upon security given
for his appearance at a time and place assigned. Wood's Inst. B.
4, c. 4.
2. Mainprise differs from bail in this, that a man's
mainpernors are barely his sureties, and cannot imprison him
themselves to secure his appearance, as his bail may, who are
looked upon as his gaolers, to whose custody he is committed.. 6
Mod. 231; 7 Mod. 77, 85, 98; Ld. Raym. 606; Bac. Ab. Bail in
Civil Cases; 4 Inst. 180. Vide Mainpernors. Writ of Mainprise;
and 15 Vin. Ab. 146; 3 Bl. Com. 128.
MAINTENANCE, crimes. A malicious, or at least, officious
interference in a suit in which the offender has no interest, to
assist one of the parties to it against the other, with money or
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advice to prosecute or defend the action, without any authority
of law. 1 Russ. Cr. 176.
2. But there are many acts in the nature of maintenance, which
become justifiable from the circumstances under which they are
done. They may be justi-fied, 1. Because the party has an
interest in the thing in variance; as when he has a bare
contingency in the lands in question, which possibly may never
come in esse. Bac. Ab. h. t. 2. Because the party is of kindred
or affinity, as father, son, or heir apparent, or husband or
wife. 3. Because the relation of landlord and tenant or master
and servant subsists between the party to the suit and the person
who assists him. 4. Because the money is given out of charity. 1
Bailey, S. C. Rep. 401. 5. Because the person assisting the party
to the suit is an attorney or counsellor: the assistance to be
rendered must, however, be strictly professional, for a lawyer is
not more justified in giving his client money than another man. 1
Russ. Cr. 179. Bac. Ab Mainte-nance: Bro. Maintenance. This
offence is punishable by fine and imprisonment. 4 Black Com. 124;
2 Swift's Dig. 328; Bac. Ab. h. t. Vide 3 Hawks, 86; 1 Greenl.
292; 11 Mass. 553 , 6 Mass. 421; 5 Pick. 359; 5 Monr. 413; 6
Cowen, 431; 4 Wend. 806; 14 John. R. 124; 3 Cowen, 647; 3
John. Ch. R. 508 7 D. & R. 846; 5 B. & C. 188.
MAINTENANCE, quasi contracts. The support which one person, who
is bound by law to do so, gives to another for his living; for
example, a father is bound to find maintenance for his children;
and a child is required by law to main-tain his father or mother
when they cannot support themselves, and he has ability to
maintain them. 1 Bouv. Inst. n. 284-6.
MAINTAINED, pleadings. This is a technical word, indispensable
in an indict- ment for maintenance, which no other word or
circumlocution will supply. 1 Wils. 325.
MAINTAINORS, criminal law. Those who maintain or support a
cause depending between others, not being retained as counsel or
attorney. For this they may be fined and imprisoned. 2 Swift's
Dig. 328; 4 Bl. Com. 124; Bac. Ab. Barrator.
MAISON DE DIEU. House of God. In England the term, borrowed
from the French, signified formerly a hospital, an almshouse, a
monastery. 39 Eliz. c. 5.
MAJESTY. Properly speaking, this term can be applied only to
God, for it signifies that which surpasses all things in grandeur
and superiority. But it is used to kings and emperors, as a title
of honor. It sometimes means power, as when we say, the majesty
of the people. See, Wolff, §998.
MAJOR, persons. One who has attained his full age, and has
acquired all his civil rights; one who is no longer a minor; an
adult.
MAJOR. Military language. The lowest of the staff officers; a
degree higher than captain.
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MAJOR GENERAL. A military officer, commanding a division or
number of regi- ments; the next in rank below a lieutenant
general.
MAJORES. The male ascendant beyond the sixth degree were so
called among the Romaus, and the term is still used in making
genealogical tables.
MAJORITY, persons. The state or condition of a person who has
arrived at full age. He is then said to be a major, in opposition
to minor, which is his condition during infancy.
MAJORITY, government. The greater number of the voters; though
in another sense, it means the greater number of votes given in
which sense it is a mere plurality. (q. v.)
2. In every well regulated society, the majority has always
claimed and exercised the right to govern the whole society, in
the manner pointed out by the fundamental laws and the minority
are bound, whether they have assented or not, for the obvious
reason that opposite wills cannot prevail at the same time, in
the same society, on the same subject. 1 Tuck. Bl. Com. App. 168,
172; 9 Dane's Ab. 37 to 43; 1 Story, Const. §330.
3. As to the rights of the majority of part owners of vessels,
vide 3 Kent, Com. 114 et seq. As to the majority of a church,
vide 16 Mass. 488.
4. In the absence of all stipulations, the general rule in
partnerships is, that each partner has an equal voice, and a
majority acting bonafide, have the right to manage the
partnership concerns, and dispose of the partnership property,
notwithstanding the dissent of the minority; but in every case
when the minority have a right to give an opinion, they ought to
be notified. 2 Bouv. Inst. n. 1954.
5. As to the majorities of companies or corporations, see
Angel, Corp. 48, et seq.; 3 M. R. 495. Vide, generally, Rutherf.
Inst. 249; 9 Serg. & Rawle, 99; Bro. Corporation, pl. 63; 15
Vin. Abr. 183, 184; and the article Authority; Plurality;
Quorum.
TO MAKE. English law. To perform or execute; as to make his
law, is to per- form that law which a man had bound himself to
do; that is, to clear himself of an action commenced against
him, by his oath, and the oaths of his neighbors. Old Nat. Br.
161. To make default, is to fail to appear in proper time. To
make oath, is to swear according to the form prescribed by law.
MAKER. This term is applied to one who makes a promissory note
and promises to pay it when due. He who makes a bill of exchange
is called the drawer, and frequently in common parlance and in
books of Reports we find the word drawer inaccurately applied to
the maker of a promissory note. See Promissory note.
MAKING HIS LAW. A phrase used to denote the act of a person who
wages his law. Bac. Ab. Wager of law, in pr.
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MALA FIDES. Bad faith. It is opposed to bona fides, good faith.
MALA PRAXIS, crim. law. A Latin expression, to signify bad or
unskilful practice in a physician or other professional person,
as a midwife, whereby the health of the patient is injured.
2. This offence is a misdemeanor (whether it be occasioned by
curiosity and experiment or neglect) because, it breaks the trust
which the patient has put in the physician, and tends directly to
his destruction. 1 Lord Raym. 213. See forms of indictment for
mala praxis, 3 Chitty Crim. Law, 863; 4 Wentw. 360; Vet. Int.
231; Trem. P. C. 242. Vide also, 2 Russ. on Cr. 288; 1 Chit.
Pr. 43; Com. Dig. Physician; Vin. Ab. Physician.
3. There are three kinds of mal practice. 1. Wilful mal
practice, which takes place when the physician purposely
administers medicines or performs an operation which he knows and
expects will result in danger or death to the individual under
his care; as, in the case of criminal abortion.
4. - 2. Negligent mal practice, which comprehends those cases
where there is no criminal or dishonest object, but gross
negligence of that attention which the situation of the patient
requires: as if a physician should administer medicines while in
a state of intoxication, from which injury would arise to his
patient.
5. - 3. Ignorant mal practice, which is the administration of
medicines, calculated to do injury, which do harm, and which a
well educated and scientific medical man would know were not
proper in the case. Besides the public remedy for mal practice,
in many cases the party injured may bring a civil action. 5 Day's
R. 260; 9 Conn. 209. See M. & Rob. 107; 1 Saund. 312, n. 2; l
Ld. Raym. 213; 1 Briand, Med. Leg. 50; 8 Watts, 355; 9 Conn.
209.
MALA PROHIBITA. Those things which are prohibited by law, and
therefore unlawful.
2. A distinction was formerly made in respect of contracts,
between mala prohibita and mala in se; but that distinction has
been exploded, and, it is now established that when the
provisions of an act of the legislature have for their object the
protection of the public, it makes no difference with respect to
contracts, whether the thing be prohibited alsolutely or under a
penalty. 5 B. & A 5, 340; 10 B. & C. 98; 3 Stark. 61; 13 Pick.
518; 2 Bing. N. C. 636, 646.
MALE. Of the masculine sex; of the sex that begets young; the
sex opposed to the female. Vide Gender; Man; Sex; Worthiest of
blood.
MALEDICTION, Eccles. law. A curse which was anciently annexed
to donations of lands made to churches and religious houses,
against those who should violate their rights.
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MALEFACTOR. He who bas been guilty of some crime; in another
sense, one who has been convicted of having committed a crime.
MALEFICIUM, civil law. Waste, damage, torts, injury. Dig. 5,
18, 1.
MALFEASANCE, contracts, torts. The unjust performance of some
act which the party had no right, or which he had contracted not
to do. It differs from mis-feasance, (q. v.) and nonfeasance.
(q. v.) Vide 1 Chit. Pr. 9; 1 Chit. Pl. 134.
MALICE, crim. law. A wicked intention to do an injury. 4 Mason,
R. 115, 505: 1 Gall. R. 524. It is not confined to the intention
of doing an injury to any particular person, but extends to an
evil design, a corrupt and wicked notion against some one at the
time of committing the crime; as, if A intended to poison B,
conceals a quantity of poison in an apple and puts it in the way
of B, and C, against whom he had no ill will, and who, on the
contrary, was his friend, happened to eat it, and die, A will be
guilty of murdering C with malice aforethought. Bac. Max. Reg.
15; 2 Chit. Cr. Law, 727; 3 Chit. Cr. Law,. 1104.
2. Malice is express or implied. It is express, when the party
evinces an intention to commit the crime, as to kill a man; for
example, modern duelling. 3 Bulstr. 171. It is implied, when an
officer of justice is killed in the discharge of his duty, or
when death occurs in the prosecution of some unlawful design.
3. It is a general rule that when a man commits an act,
unaccompanied by any circumstance justifying its commission, the
law presumes he has acted advisedly and with an intent to produce
the consequences which have ensued. 3 M. & S. 15; Foster, 255;
1 Hale, P. C. 455; 1 East, P. C. 223 to 232, and 340; Russ. &
Ry. 207; 1 Moody, C. C. 263; 4 Bl. Com. 198; 15 Vin. Ab. 506;
Yelv. 105 a; Bac. Ab. Murder and Homicide, C 2. Malice
aforethought is deliberate premedi-tation. Vide Aforethought.
MALICE, torts. The doing any act injurious to another without a
just cause.
2. This term, as applied to torts, does not necessarily mean
that which must proceed from a spiteful, malignant, or revengeful
disposition, but a conduct injurious to another, though
proceeding from an ill-regulated mind not sufficiently cautious
before it occasions an injury to another. 11 S. & R. 39, 40.
3. Indeed in some cases it seems not to require any intention
in order to make an act malicious. When a slander has been
published, therefore, the pro-per question for the jury is, not
whether the intention of the publication was to injure the
plaintiff, but whether the tendency of the matter published, was
so injurious. 10 B. & C. 472: S. C. 21 E. C. L. R. 117.
4. Again, take the common case of an offensive trade, the
melting of tallow for instance; such trade is not itself
unlawful, but if carried on to the annoyance of the neighboring
dwellings, it becomes unlawful with respect to them, and their
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inhabitants may maintain an action, and may charge the act of the
defendant to be malicious. 3 B. & C. 584; S. C. 10 E. C. L. R.
179.
MALICE AFORETHOUGHT, pleadings. In an indictment for murder,
these words, which have a technical force, must be used in
charging the offence; for without them, and the artificial
phrase murder, the indictment will be taken to charge
manslaughter only. Fost. 424; Yelv. 205; 1 Chit. Cr. Law, *242,
and the authorities and cases there cited.
2. Whenever malice aforethought is necessary to constitute the
offence, these words must be used in charging the crime in the
indictment. 2 Chit. Cr. Law, *787; 1 East, Pl. Or. 402. 2 Mason,
R. 91.
MALICIOUS. With bad, and unlawful motives; wicked.
MALICIOUS ABANDONMENT. The forsaking without a just cause a
husband by the wife, or a wife by her husband. Vide Abandonment,
Malicious.
MALICIOUS MISCHIEF. This expression is applied to the wanton or
reckless de- struction of property, and the wilful perpetration
of injury to the person. Alis. Prin. 448; 3 Dev. & Batt. 130; 8
Leigh, 719; 5 Ired. R. 364; 8 Port. 447; 2 Metc. 21; 3
Greenl. 177.
MALICIOUS PROSECUTION, or MALICIOUS ARREST, torts, or remedies.
These terms import a wanton prosecution or arrest, made by a
prosecutor in a criminal proceeding, or a plaintiff in a civil
suit, without probable cause, by a regular process and
proceeding, which the facts did not warrant, as appears by the
result.
2. This definition will be analysed by considering, 1. The
nature of the prosecution or arrest. 2. Who is liable under it.
3. What are malice and probable cause. 4. The proceedings. 5. The
result of the prosecution and afterwards, 6. The remedy.
3. - §1. Where the defendant commenced a criminal prosecution
wantonly and in other respects against law, he will be
responsible. Addis. R. 270; 12 Conn. 219. The prosecution of a
civil suit, when malicious, is a good cause of action, even when
there has been no arrest. 1 P. C. C. 210; 11 Conn. 582; 1 Wend.
345. But no action lies for commencing a civil action, though
without sufficient cause. 1 Penns. R. 235.
4. - §2. The action lies against the prosecutor and even
against a mere informer, when the proceedings are malicious. 5
Stew. & Port. 367. But grand jurors are not liable to an action
for a malicious prosecution, for information given by them to
their fellow jurors, on which a prosecution is founded. Hardin,
556. Such action lies against a plaintiff in a civil action who
ma- liciously sues out the writ and prosecutes it; 16 Pick. 453;
but an action does not lie against an attorney at law for
bringing the action, when regularly employed. 16 Pick. 478. See 6
Pick. 193.
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5. - §3. There must be malice and want of probable cause. 1
Wend. 140, 345; 7 Cowen, 281; 2 P. A. Browne, Appx. xlii;
Cooke, 90; Litt. Sel. Cas. 106; 4 Litt. 334; 3 Gil. & John.
377; 1 N. & M. 36; 12 Conn. 219; 3 Call. 446; 2 Hall, 315; 3
Mason, 112, 2 N. & M. 54,143. See Malice; Probable cause.
6. - §4. The Proceedings under which the original prosecution
or action was held, must have been regular, in the ordinary
course of justice, and before a tribunal having power to
ascertain the truth or falsity of the charge, and to punish the
supposed offender, the now plaintiff. 3 Pick. 379, 383. When the
proceedings are irregular, the prosecutor is a trespasser. 3
Blackf. 210 . See Regular and irregular process.
7. - §5. The malicious prosecution or action must be ended, and
the plain-tiff must show it was groundless, either by his
acquittal or by obtaining a final judgment in his favor in a
civil action. 1 Root, R. 553; 1 N. & M. 36; 2 N. & M. 54, 143;
7 Cowen, 715; 2 Dev. & Bat. 492.
8. - §6. The remedy for a malicious prosecution is an action on
the case to recover damages for the injury sustained. 5 Stew. &
Porter, 367; 2 Conn. 700; 11 Mass 500; 6 Greenl. 421; 3 Gill.
& John. 377. See Case; Regular and irregular process.
See, generally, Bull. N. P. 11; 1 Saund. 228; 12 Mod. 208; 1
T. R. 493 to 551; Bac. Ab. Actions on the case, H; Bouv. Inst.
Index, h. t.
MALUM IN SE. Evil in itself.
2. An offence malum in se is one which is naturally evil, as
murder, theft, and the like; offences at common law are
generally mala in sese.
3. An offence malum prohibitum, on the contrary, is not
naturally an evil, but becomes so in consequence of its being
forbidden; as playing at games, which being innocent before,
have become unlawful in consequence of being forbidden. Vide Bac.
Ab. Assumpsit, A, note; 2 Rolle's Ab. 355.
MALVEILLES. Ill-will. In some ancient records this word
signifies malicious practices, or crimes and misdemeaners.
MALVERSATION, French law. This word is applied to all
punishable faults committed in the exercise of an office, such as
corruptions, exactions, extortions and larceny. Merl. Repert. b.
t.
MAN. A human being. This definition includes not only the adult
male sex of the human species, but women and children; examples:
"of offences against man, some are more immediately against the
king, other's more immediately against the subject." Hawk. P. C.
book 1, c. 2, s. 1. Offences against the life of man come under
the general name of homicide, which in our law signifies the
killing of a man by a man." Id. book 1, c. 8, s. 2.
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2. In a more confined sense, man means a person of the male
sex; and sometimes it signifies a male of the human species
above the age of puberty. Vide Rape. It was considered in the
civil or Roman law, that although man and person are synonymous
in grammar, they had a different acceptation in law; all persons
were men, but all men, for example, slaves, were not persons, but
things. Vide Barr. on the Stat. 216, note.
MANAGER. A person, appointed or elected to manage the affairs
of another, but the term is more usually applied to those
officers of a corporation who are authorized to manage its
affairs. 1 Bouv. Inst. n. 190.
2. In banking corporations these officers are commonly called
directors, and the power to conduct the affairs of the company,
is vested in a board of directors. In other private corporations,
such as railroad companies, canal, coal companies, and the like,
these officers are called managers. Being agents, when their
authority is limited, they have no power to bind their principal
beyond such authority. 17 Mass. R. 29; 1 Greenl. R. 81.
3. The persons appointed on the part of the house of
representatives to prosecute impeachments before the senate, are
called managers.
MANBOTE. In a barbarous age, when impunity could be purchased
with money, the compensation which was paid for homicide was
called manbote.
MANCIPATIO, civil law. The act of transferring things called
res mancipi. (q. v.) This is effected in the presence of not less
than five witnesses, who must be Roman citizens and of the age of
puberty, and also in the presence of another person of the same
condition, who holds a pair of brazen scales, and hence is called
Libripens. The purchaser (qui mancipio accipit) taking hold of
the thing, says I affirm that this slave (homo) is mine, ex jure
quiritium, and he is purchased by me with this piece of money
(sas) and brazen scales. He then strikes the scales with the
piece of money and gives it to the seller as a symbol of the
price (quasi pretii loco.) The purchaser or person to whom the
mancipatio was made did not acquire the possession of the
mancipatio; for the acquisition of possession was a separate
act. Gaius. 1, 119; Id. iv. 181.
Both mancipatio and in jure cessio existed before the twelve
tables. Frag. Vat. 50. Mancipation no longer existed in the code
of Justinian, who took away all distinction between res mancipi
and nec mancipi. Smith's Dict. Gr. & Rom. Antiq. Verb. Mancipium;
Coop. Jus. 442.
MANDAMUS, practice. The name of a writ, the principal word of
which when the proceedings were in Latin, was mandamus, we
command.
2. It is a command issuing in the name of the sovereign
authority from a superior court having jurisdiction, and is
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directed to some person, corporation, or, inferior court, within
the jurisdiction of such superior court, requiring them to do
some particular thing therein specified, which appertains to
their office and duty, and which the superior court has
previously determined, or at least supposes to be consonant to
right and justice. 20 Pick. 484; 21 Pick. 258; Dudley, 37; 4
Humph. 437.
3. Mandamus is not a writ of right, it is not consequently
granted of course, but only at the discretion of the court to
whom the application for it is made; and this discretion is not
exercised in favor of the applicant, unless some just and useful
purpose may be answered by the writ. 2 T. R. 385; 1 Cowen's R.
501; 11 Shepl. 151; 1 Pike, 11.
4. This writ was introduced io prevent disorders from a failure
of justice; therefore it ought to be used upon all occasions
where the law has established no specific remedy, and where in
justice and good government there ought to be one. 3 Burr. R.
1267; 1 T. R. 148, 9.; 2 Pick. 414; 4 Pick. 68; 10 Pick. 235,
244; 7 Mass; 340; 3 Binn. 273; 5 Halst. 57; Cooke, 160; 1
Wend. 318; 5 Pet. 190; 1 Caines, R. 511; John. Cas. 181; 12
Wend. 183; 8 Pet. 291; 12 Pet. 524; 2 Penning. 1024; Hardin,
172; 7 Wheat. 534; 5 Watts. 152; 2 H. & M. 132; 3 H. & M. 1;
1 S. & R. 473; 5 Binn. 87; 3 Conn. 243; 2 Virg. Cas. 499; 5
Call. 548. Mandamus will not lie where the law has given another
specific remedy. 1 Wend. 318; 10 John. 484; 1 Cow. 417;
Coleman, 117; 1 Pet. 567; 2 Cowen, 444; 2 M'Cord, 170; Minor,
46; 2 Leigh, 165; Const. Rep. 165, 175, 703.
5. The 13th section of the act of congress of September, 24,
1789, gives the supreme court power to issue writs of mandamus in
cases warranted by the principles and usages of law, to any
courts appointed or persons holding office, under the authority
of the United States. The issuing of a mandamus to courts, is the
exercise of an appellate jurisdiction, and, therefore
constitutionally vested in the supreme court; but a mandamus
directed to a public officer, belongs to original jurisdiction,
and by the constitution, the exercise of original jurisdiction by
the supreme court is restricted to certain specified cases, which
do not comprehend a mandamus. The latter clause of the above
section, authorizing this writ to be issued by the supreme court,
to persons holding office under the authority of the United
States, is, therefore, not warranted by the constitution, and
void. 1 Cranch, R. 175.
6. The circuit courts of the United States may also issue writs
of mandamus, but their power in this particular, is confined
exclusively to those cases in which it may be necessary to the
exercise of their jurisdiction. 7 Cranch, R. 504; 8 Wheat. R.
598; 1 Paine's R. 453. Vide, generally, 3 Bl. Com. 110; Com.
Dig. h. t; Bac. Ab. h. t.; Vin. Ab. h. t.; Selw. N. P. h. t.;
Chit. Pr. h. t.; Serg. Const. Index, h. t.; Ang. on Corp.
Index, h. t.; 3 Chit. Bl. Com. 265 n. 7; 1 Kent. Com. 322;
Dane's Ab. Index, h. t.; 6 Watts & Serg. 386, 397; Bouv. Inst.
Index, h. t.; and the article "Courts of the United States."
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MANDANT. The principal in the contract of mandate is so called.
Story, Ag. §337.
MANDATARIUS. One who is entrusted with and undertakes to
perform a mandate. This word is used by the civilians in the same
sense that we use mandatary. Poth. du Mandat, n. 1.
MANDATARY, contracts. One who undertakes to perform a mandate.
Jones' Bailm. 53; Story on Bailm. 38. Dr. Halifax calls him
mandatee. Halif. Anal. Civ. Law, 70, §§16, 17.
2. It is the duty of a mere mandatory, it is said, to take
ordinary care of the property entrusted to him. Vide Negligence.
But it has been held that he is liable only for gross negligence.
14 S. & R. 275; 2 Hawks, R. 145; 2 Murph. R. 373; 3 Dana, R.
205; 3 Mason, R. 132; 11 Wend, R. 25; Wright, R. 598; 1 Bouv.
1st. n. 1073.
MANDATE, practice. A judicial command or precept issued by a
court or magi- trate, directing the proper officer to enforce a
judgment, sentence or decree. Jones'. Bailm. 52; Story on Bailm.
§137.
MANDATE. Mandatum or commission, contracts. Sir William Jones
defines a mandate to be a bailment of goods without reward, to be
carried from place to place, or to have some act performed about
them. Jones' Bailm. 52; 2 Ld. Raym. 909, 913. This seems more
properly an enumeration of the various sorts of mandates than a
definition of the contract. According to Mr. Justice Story, it is
a bailment of personal property, in regard to which the bailee
engages to do some act without reward. Bailm. §137. And Mr.
Chancellor Kent defines it to be when one undertakes, without
recompense, to do some act for the other in respect to the thing
bailed. Comm. 443. See, for other definitions, Story on Bailm.
§137; Pothier, Pand. lib. 17, tit. 1; Wood's Civ. Law, B. 3, c.
5, p. 242; Halifaz's Anal. of the Civ. Law, 70,; Code of Louis.
art. 2954; Code Civ. art. 1984; 1 Bouv. Inst. n. 1068.
2. From the very term of the definition, three things are
necessary to create a mandate. First, that there should exist
something which should be the matter of the contract; secondly,
that it should be done gratuitously; and thirdly, that the
parties. should voluntarily intend to enter into the contract.
Poth. Pand. Lib. 17, tit. 1, p. 1, §1; Poth. Contr. de Mandat,
c. 1, §2.
3. There is no particular form or manner of entering into the
contract of mandate, prescribed either by the common law, or by
the civil law, in order to give it validity. It may be verbal or
in writing; it may be express or implied it may be in solemn
form or in any other manner. Story on Bailm. §160. The contract
may be varied at the pleasure of the parties. It may be absolute
or conditional, general or special, temporary or permanent.
Wood's Civ. Law, 242; 1 Domat, B. 1. tit. 15, §1, 6, 7, 8;
Poth. Contr. de Mandat, c. 1, §3, n. 34, 35, 36.
4. As to the degree of diligence which the mandatory is bound
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to exercise, see Mandatory; Negligence; Pothier, Mandat, h. t;
Louis. Code, tit. 15 Code Civ. t. 13, c. 2 Story on Bailm. §163
to 195; 1 Bouv. Inst. n. 1073.
5. As to the duties and obligations of the mandator, see Story
on Bailm. 196 to 201; Code Civ. tit. 13, c. 3; Louis. Code,
tit. 15, c. 4; 1 Bouv. Inst. n. 1074.
6. The contract of mandate may be dissolved in various ways:
1. It may be dissolved by the mandatary at any time before he has
entered upon its execution; but in this case, as indeed in all
others, where the contract is dissolved before the act is done
which the parties intended, the property bailed is to be restored
to the mandator.
7. - 2. It may be dissolved by the death of the mandatory;
for, being founded in personal confidence, it is not presumed to
pass to his representatives, unless there is some special
stipulation to that effect. But this principally applies to cases
where the mandate remains wholly unexecuted; for if it be in
part executed, there may in some cases, arise a personal
obligation on the part of the representatives to complete it.
Story on Bailm. §202.; 2 Kent's Com. 504, §4; Pothier, Mandat,
c. 4, §1, n. 101.
8. Whenever the trust is of a nature which requires united,
advice, confidence and skill of all, and is deemed a joint
personal trust to all, the death of one joint mandatary dissolves
the contract as to all. See Story on Bailm. §202; Co. Litt. 112,
b; Id. 181, b; Com. Dig. Attorney, C 8; Bac. Abr. Authority,
C; 2 Kent's Com. 504 7 Taunt. 403.
9. The death of the mandator, in like manner, puts an end to
the contract. See 2 Mason's R. 342; 8 Wheat. R. 174; 2 Kent's
Com. 507; 1 Domat, B. 1, tit. 15, §4, n. 6, 7, 8; Pothier,
Contract de Mandat, c. 4, §2, n. 103. But although an unexecuted
mandate ceases with the death of the mandator, yet, if it be
executed in part at that time, it is binding to that extent, and
his representatives must indemnify the mandatory. Story on Bailm.
§§204, 205.
10. - 3. The contract of mandate may be dissolved by a change
in the state of the parties; as if either party becomes insane,
or, being a woman, marries before the execution of the mandate.
Story on Bailm. §206; 2 Roper, Husb. and Wife, 69, 73; Salk.
117; Bac. Abr. Baron and Feme, E; 2 Kent's Com. 506,
11. - 4. It may be dissolved by a revocation of the authority,
either by operation of law, or by the act of the mandator.
12. It ceases by operation of law when the power of the
mandator ceases over the subject-matter; as, if he be a
guardian, it ceases, as to his ward's property, by the
termination of the guardianship. Pothier, Contract de Mandat, c.
4, §4, n. 112.
13. So, if the mandator sells the property, it ceases upon the
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sale, if it be made known to the mandatory. 7 Ves. jr. 276;
Story on Bailm. §207.
14. By the civil law the contract of mandate ceases by the
revocation of the authority. Story on Bailm. §208; Code Civ.
art. 2003 to 2008; Louis, Code, art. 2997.
15. At common law, the party giving an authority is generally
entitled to revoke it. See 5 T. R. 215; Wallace's R. 126; 5
Binn. 316. But, if it be given as a part of a security, as if a
letter of attorney be given to collect a debt, as a security for
money advanced, it is irrevocable by the party, although revoked
by death. 2 Mason's R. 342; 8 Wheat. 174; 2 Esp. R. 365; 7
Ves. 28; 2 Ves. & Bea. 51; 1 Stark. R. 121; 4 Campb. 272.
MANDATE, civil law. Mandates were the instructions which the
emperor addressed to public functionaries, which were to serve as
rules for their conduct. 2. These mandates resembled those of the
pro-consuls, the mandata jurisdictio, and were ordinarily binding
on the legates or lieutenants of the emperor of the imperial
provinces, and, there they had the authority of the principal
edicts. Sav. Dr. Rom. ch. 3, §24, n. 4.
MANDATOR, contracts. The person employing another to perform a
mandate. Story on Bailm. §138; 1 Brown, Civ. Law, 382; Halif.
Anal. Civ. Law, 70.
MANDAVI BALLIVO, English law. The return made by a sheriff,
when he has committed the execution of a writ to a bailiff of a
liberty, who has the right to execute the writ.
MANHOOD. The ceremony of doing homage by the vassal to his lord
was de- nominated homagium or manhood, by the feudists. The
formula used was devenio vester homo, I become you Com. 54. See
Homage.
MANIA, med. jur. This subject will be considered by examining
it, first, in a medical point of view; and, secondly, as to its
legal consequences.
2. - §1. Mania may be divided into intellectual and moral.
1. Intellectual mania is that state of mind which is
characterised by certain hallucinations, in which the patient is
impressed with the reality of facts or events which have never
occurred, and acts in accordance with such belief; or, having
some notion not altogether unfounded, carries it to an ex-
travagant and absurd length. It may be considered as involving
all or most of the operations of the understanding, when it is
said to be general; or as be-ing confined to a particular idea,
or train of ideas, when it is called partial.
3. These will be separately examined. 1st. General intellectual
mania is a disease which presents the most chaotic confusion into
which the human mind, can be involved, and is attended by greater
disturbance of the functions of the body than any other.
According to Pinel, Traite d'Alienation Mentale, p. 63, "The
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patient sometimes keeps his head elevated and his looks fixed on.
high; he speaks in a low voice, or utters cries and
vociferations without any apparent motive; he walks to and fro,
and sometimes arrests his steps as if fixed by the sentiment of
admiration, or wrapt up in profound reverie. Some insane persons
display wild excesses of merriment, with immoderate bursts of
laughter. Sometimes also, as if nature delighted in contrasts,
gloom and taciturnity prevail, with involuntary showers of tears,
or the anguish of deep sorrow, with all the external signs of
acute mental suffering. In certain cases a sudden reddening of
the eyes and excessive loquacity give presage of a speedy
explosion of violent madness and the urgent necessity of a strict
confinement. One lunatic, after long intervals of calmness, spoke
at first with volubility, uttered frequent shouts of laughter,
and then shed a torrent of tears; experience had taught the
necessity of shutting him up immediately, for his paroxysms were
at such times of the greatest violence. "Sometimes, however, the
patient is not altogether devoid of intelligence; answers some
questions very appropriately, and is not destitute of acuteness
and ingenuity. The derangement in this form of mania is not
confined to the intellectual facul-ties, but not unfrequently
extends to the moral powers of the mind.
4. - 2d. Partial intellectual mania is generally known by the
name of monomania. (q. v.) In its most usual and simplest form,
the patient has conceived some single notion contrary to common
sense and to common experience, generally dependent on errors of
sensation; as, for example, when a person believes that he is
made of glass, that animals or men have taken their abode in his
stomach or bowels. In these cases the understanding is frequently
found to be sound on all subjects, except those connected with
the hallucination. Sometimes, instead of being limited to a
single point, this disease takes a wider range, and there is a
class of cases, where it involves a train of morbid ideas. The
patient then imbibes some notions connected with the various
relations of persons, events, time, space, &c., of the most
absurd and unfounded nature, and endeavors, in some measure, to
regulate his conduct accordingly; though, in most respects, it
is grossly inconsistent with his delusion.
5. Moral mania or moral insanity, (q. v.) is divided into,
first, general, where all the moral faculties are subject to a
general disturbance and secondly, partial, where one or two only
of the moral powers are perverted.
6. These will be briefly and separately examined. 1st. It is
certain that many individuals are living at large who are
affected, in a degree at least, by general moral mania. They are
generally of singular habits, wayward temper, and eccentric
character; and circumstances are frequently attending them which
induce a belief that they are not altogether sane. Frequently
there is a hereditary tendency to madness in the family; and,
not seldom, the individual himself has at a previous period of
life sustained an attack of a decided character: his temper has
undergone a change, he has become an altered man, probably from
the time of the occurrence of something which deeply affected
him, or which deeply affected his bodily constitution. Sometimes
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these alterations are imperceptible, at others, they are sudden
and immediate. Individuals afflicted with this disease not
unfrequently "perform most of the common duties of life with
propriety, and some of them, indeed, with scrupulous exactness,
who exhibit no strongly marked features of either temperament, no
traits of superior or defective mental endowment, but yet take
violent an- tipathies, harbor unjust suspicions, indulge strong
propensities, affect singularity in dress, gait, and phraseology;
are proud, conceited, and ostentatious; easily excited and with
difficulty appeased; dead to sensi- bility, delicacy, and
refinement; obstinately riveted to the most absurd opinions;
prone to controversy, and yet incapable of reasoning; always the
hero of their own tale, using hyperbolic, high flown language to
express the most simple ideas, accompanied by unnatural
gesticulation, inordinate ac- tion, and frequently by the most
alarming expression of countenance. On some occasions they
suspect sinister intentions on the most trivial grounds; on
others are a prey to fear and dread from the most ridiculous and
imaginary sources; now embracing every opportunity of exbibiting
romantic courage and feats and hardihood, then indulging
themselves in all manner of excesses. Persons of this
description, to the casual observer, might appear actuated by a
bad heart, but the experienced physician knows it is the head
which is defective. They seem as if constantly affected by a
greater or less degree of stimulation from intoxicating liquors,
while the expression of countenance furnishes an infallible proof
of mental disease. If subjected to moral re- straint, or a
medical regimen, they yield with reluctance to the means
proposed, and generally refuse and resist, on the ground that
such means are unnecessary where no disease exists; and when, by
the system adopted, they are so far recovered, as to be enabled
to suppress the exhibition of their former peculiarities, and are
again fit to be restored to society, the physician, and those
friends who put them under the physician's care, are generally
ever after objects of enmity, and frequently of revenge." Cox,
see cases of this Pract. Obs. on Insanity, kind of madness cited
in Ray, Med. Jur. §112 to 119; Combe's Moral Philos. lect. 12.
7 .- 2d. Partial moral mania consists in the derangement of one
or a few of the affective faculties, the moral and intellectual
constitution in other respects remaining in a sound state. With a
mind apparently in full possession of his reason, the patient
commits a crime, without any extraordinary temptation, and with
every inducement to refrain from it, he appears to act without a
motive, or in opposition to one, with the most perfect
consciousness of the impropriety, of his conduct, and yet he
pursues perseveringly his mad course. This disease of the mind
manifests itself in a variety of ways, among which may be
mentioned the following: 1. An irresistible propensity to steal.
2. An inordinate propensity to lying. 3. A morbid activity of the
sexual propensity. Vide Erotic Mania. 4. A morbid propensity to
commit arson. 5. A morbid activity of the propensity to destroy.
Ray, Med. Jur. ch. 7.
8. - §2. In general, persons laboring under mania are not
responsible nor bound for their acts like other persons, either
in their contracts or for their crimes, and their wills or
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testaments are voidable. Vide Insanity; Moral Insanity. 2
Phiilim. Ecc. R. 69; 1 Hagg. Cons: R. 414; 4 Pick. R. 32; 3
Addams, R. 79; 1 Litt. R. 371.
MANIA A POTU. Insanity arising from the use of spirituous
liquors. Vide Delirium Tremens.
MANIFEST, com. law. A written instrument containing a true
account of the cargo of a ship or commercial vessel.
2. The Act of March 2, 1799, s. 23, requires that when goods,
wares, or mer- chandise, shall be brought into the United States,
from any foreign port or place, in any ship or vessel, belonging,
in whole or in part to a citizen or inhabitant of the United
States, the manifest shall be in writing, signed by the master of
the vessel, and that it shall contain the names of the places
where the goods in such manifest mentioned, shall have been
respectively taken on board, and the places within the United
States, for which they are respec tively consigned, particularly
noticing the goods destined for each place, respectively; the
name, description, and build of such vessel, and her true
admeasurement or tonnage, the place to which she belongs, with
the name of each owner, according to her register, the name of
her master, and a just and particular account of the goods so
laden on board, whether in package or stowed loose, of any kind
whatsoever, with the marks and numbers on each package, the
numbers and descriptions of the packages in words at length,
whether leaguer, pipe, butt, puncheon, hogshead, barrel, keg,
case, bale, pack, truss, chest, box, bandbox, bundle, parcel,
cask, or package of any kind, describing each by its usual
denomination; the names of the persons to whom they are
respectively consigned, agreeably to the bills of lading, unless
when the, goods are consigned to order, when it shall be so
expressed; the names of the several passengers on; board,
distinguishing whether cabin or steerage passengers, or both,
with their baggage, specifying the number and description of
packages belonging to each, respectively; together with an
account of the remaining sea stores, if any. And if any
merchandise be imported, destined for different districts, or
ports, the quantities and packages thereof shall be inserted in
successive order in the manifest; aud all spirits, wines aud
teas, constituting the whole or any part of the cargo of any
vessel, shall be inserted in successive order, distinguishing the
ports to which they may be destined, and the kinds, qualities and
quantities thereof; and if merchandise be imported by citizens
or inhabitants of the United States, in vessels other than of the
United States, the manifests shall be of the form and shall
contain the particulars aforesaid, except that the vessel shall
be specially described as provided by a form in the act. 1
Story's Laws, 593, 594.
3. The want of a manifest, where one is required, or when it is
false, is severely punished.
MANIFEST, evidence. That which is clear and requires no proof;
that which is noto- rious. See Notoriety.
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MANIFESTO. A solemn declaration, by the constituted authorities
of a nation, which contains the reasons for its public acts
towards another.
2. On the declaration of war, a manifesto is usually issued in
which the nation declaring the war, states the reasons for so
doing. Vattel, liv. 3, c. 4, §64; Wolff, §1187. See
Anti-Manifesto.
MANKIND. Persons of the male sex; but in a more general sense,
it includes persons of both sexes; for example, the statute of
25 Hen. VIII., c. 6, makes it felony to commit, sodomy with
mankind or beast. Females as well as males axe included under the
term mankind. Fortesc. 91; Bac. Ab. Sodomy. See Gender.
MANNER AND FORM, pleading. After traversing any allegation in
pleading, it is usual to say "in manner and form as he has in his
declaration in that behalf alleged," which is as much as to
include in the traverse, not only the mere fact opposed to it,
but that in the manner and form in which it is stated by the
other party. These words, however, only put in issue the
substantial statement of the manner of tho fact traversed, and do
not extend to the time, place, or other circumstances attending
it, if they were not originally material and necessary to be
proved as laid. 3 Bouv. Inst. p. 297. See Modo et forma.
MANNOPUS. An ancient word which signifies goods taken in the
hands of an ap- prehended thief.
MANOR, estates. This word is derived from the French manoir,
and signifies, a house, residence, or habitation. At present its
meaning is more enlarged, and includes not only a dwelling-house,
but also lands. Vide Co. Litt. 58, 108; 2 Roll. Ab. 121 Merl.
Repert. mot Manoir. See Serg. Land Laws of Pennsyl. 195.
2. By the English law, a manor is a tract of land originally
granted by the king to a person of rank, part of which was given
by the grantee to his followers, and the rest lie retained under
the name of his demesnes; that which remained uncultivated was
called the lord's waste, and served for public roads and common
of pasture for the lord and his tenants.
MANSION. This term is synonymous with house. (q. v.) 1 Chit.
Pr. 167; 2 T. R. 502; 1 Tho. Co. Litt. 215, n. 35; 9 B. & C.
681; S. C. 17 E. C. L. R. 472, and the cases there cited; Com.
Dig. Justices, P 5; 3 Serg. & Rawle, 199. A portion only of a
building may come under the description of a mansion-house. 1
Leach, 89, 428; 1 East, P. C. C. 15, s. 19. 2 Bouv. Inst. n.
1571, note.
MANSLAUGHTER, crim. law. The unlawful killing of another
without malice either express or implied. 4 Bl. Com. 190 1 Hale,
P. C. 466. The distinctions between manslaughter and murder,
consists in the following. In the former, though the act which
occasions the death be unlawful, or likely to be attended with
bodily mischief, yet the malice, either express or implied, which
is the very essence of murder, is presumed to be wanting in
manslaughter. 1 East, P. C. 218 Foster, 290.
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2. It also differs from murder in this, that there can be no
accessaries before the fact, there having been no time for
premeditation. 1 Hale, P. C. 437; 1 Russ. Cr. 485. Manslaugbter
is voluntary, when it happens upon a sudden heat; or
involuntary, when it takes place in the commission of some
unlawful act.
3. The cases of manslaughter may be classed as follows those
which take place in consequence of, 1. Provocation. 2. Mutual
combat. 3. Resistance to public officers, &c. 4. Killing in the
prosecution of an unlawful or wanton act. 5. Killing in the
prosecution of a lawful act, improperly performed, or performed
without lawful authority.
4. - 1. The provocation which reduces the killing from murder
to manslaughter is an answer to the presumption of malice which
the law raises in every case of homicide; it is therefore no
answer when express malice is proved. 1 Russ. Cr, 440; Foster,
132; 1 East, P. C. 239; and to be available the provocation
must have been reasonable and recent, for no words or slight
provocation will be sufficient, and if the party, has had time to
cool, malice will be inferred.
5. - 2. In cases of mutual combat, it is generally manslaughter
only when one of the parties is killed. When death ensues from
duelling the rule is different, and such killing is murder.
6. - 3. The killing of an officer by resistance to him while
acting under lawful authority is murder; but if the officer be
acting under a void or illegal authority, or out of his
jurisdiction, the killing is manslaughter, or excusable homicide,
according to the circumstances of the case. 1 Moody, C. C. 80,
132; 1 Hale, P. C. 458; 1 East, P. C. 314; 2 Stark. N. P. C.
205; S. C. 3 E. C. L. R. 315.
7. - 4. Killing a person while doing an act of mere wantonness,
is manslaughter as, if a person throws down stones in a coal-pit,
by which a man is killed, although the offender was only a
trespasser. Lewin, C. C. 179.
8. - 5. When death ensues from the performance of a lawful act,
it may, in consequence of the negligence of the offender, amount
to manslaughter. For instance, if the death has been, occasioned
by negligent driving. 1 East, P. C. 263; 1 C. & P. 320 S. C. 9
E. C. L. R. 408; 6 C. & P. 629; S. C. 25 E. C. L. R. 569.
Again, when death ensues, from the gross negligence of a medical
or surgical practitioner, it is manslaughter. 1 Hale, P. C. 429;
3 C. & P. 632; S. C. 14 E, C. L. R. 495.
MANSTEALING. This word is sometimes used synonymously with
kidnapping. The latter is more technical. 4 Bl. Com. 219.
MANU FORTI. With strong hand. (q. v.) This term is used in
pleading in cases of forcible entry, and no other words are of
equal import. Dane's Ab. ch. 132, a. 6; ch. 203, a. 12.
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MANU OPERA. This has the same meaning with mannopus. (q. v.)
MANUAL. That which is employed or used by the hand, of which a
present profit may be made. Things in the manual occupation of
the owner cannot be distrained for rent. Vide Tools.
MANUCAPTIO, practice. In the English law it is a writ which
lies for a man taken on suspicion of felony and the like, who
cannot be admitted to bail by the sheriff, or others having power
to let to mainprise. F. N. B. 249.
MANUCAPTORS. The same as mainpernors. (q. v.)
MANUFACTURE. This word is used in the English and American
patent laws. This term includes two classes of things; first,
all machinery which is to be used and is not the object of sale;
and, secondly, substances (such, for example, as medicines)
formed by chemical processes, when the vendible substance is the
thing produced, and that which operates preserves no permanent
form. In the first class, the machine, and, in the second the
substance produced, is the subject of the patent. 2 H. Bl. 492.
See 8 T. R. 99; 2 B. & A. 349; Day. Pat. Cas. 278; Webst. on
Pat. 8; Phil. on Pat. 77; Perp. Manuel des Inv. c. 2, s. 1;
Renouard, c. 5, s. 1; Westminster Review, No. 44, April 1835, p.
247; 1 Bell's Com., B. 1, part 2, c. 4, s. 1, p. 110, 6th ed.
MANUMISSION, contracts. The agreement by which the owner or
master of a slave sets him free and at liberty; the written
instrument which contains this agreement is also called a
manumission.
2. In the civil law it was different from emancipation, which,
properly speaking, was applied to the liberation of children from
paternal power. Inst. liv. 1, t. 5 & 12; Co. Litt. 137, a;
Dane's Ab. h. t.
MANURE, Dung. When collected in a heap, it is considered as
personal property, but, when spread, it becomes a part of the
land and acquires the character of real estate. Alleyn, 31; 2
Ired. R. 326.
MANUS. Anciently signified the person taking an oath as a
compurgator. The use of this word probably came from the party
laying his hand on the New Testament. Manus signifies, among the
civilians, power, and is frequently used as synonymous with
potestas. Lec. El. Dr. Rom. §94.
MANUSCRIPT. A writing; a writing which has never been printed.
2. The act of congress securing to authors a copyright passed
February 3, 1831, sect. 9, protects authors in their manuscripts,
and renders any person who shall unlawfully publish a manuscript
liable to an action, and authorizes the courts to enjoin the
publisher. See Copyright. The right of the author, to his
manuscripts, at common law, cannot be contested. 4 Burr. 2396; 2
Eden, Ch. R. 329; 2 Story, R. 100; 2 Atk. 342; Ambl. 694; 2
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B. & A. 290; 2 Story, Eq. Jur. §943; Eden, Inj. 322; 2 B. & A.
298; 2 Bro. P. C. (Toml ed.) 138; 4 Vin. Ab. 278; 2 Atk. 342;
2 Ves. & B. 23. These rights will be considered as abandoned if
the author publishes his manuscripts, without securing the
copyright under the acts of congress. See Bouv. Inst. Index, h.
t.; Copyright.
MARAUDER. One who, while employed in the army as a soldier,
commits a larceny or robbery in the neighborhood of the camp, or
while wandering away from the army. Merl. Repert. h. t.
MARC-BANCO. The name of a coin. The marc-banco of Hamburg, as
money of account, at the custom-house, is deemed and taken to be
of the value of thirty-five cents. Act of March 3, 1843.
MARCHES, Eng. law. This word signifies the limits, or confines,
or borders. Bac. Law Tracts, tit. Jurisdiction of the. Marches,
p. 246. It was applied to the limits between England and Wales or
Scotland. In Scotland the term marches is applied to the
boundaries between private properties.
MARETUM. Marshy ground overflowed by the sea or great rivers.
Co. Litt. 5.
MARINARIUS. An ancient word which signified a mariner or
seaman; in England marinarius capitaneus, was the admiral or
warden of the ports.
MARINE. Whatever concerns the navigation of the sea, and forms
the naval power of a nation is called its marine.
MARINE CONTRACT. One which relates to business done or
transacted upon the sea and in sea ports, and over which the
courts of admiralty have jurisdiction concurrent with the courts
of common law; such contracts include according to civilians and
jurists among other things, charter parties, affreightments,
marine hypothecations, contracts for the marine service in the
building, re-pairing, supplying and navigating ships; contracts
and quasi contracts respec- ting averages, contributions and
jettisons, and policies of insurance. 2 Gall. R. 398, where Judge
Story gave a very learned opinion on the subject.
MARINE INSURANCE, contracts. A contract by which one party, for
a stipulated premium, undertakes to indemnify the other, against
all perils or sea risks, to which his ship; freight or cargo, or
some of them, may be exposed, during a certain voyage or fixed
period of time. 1 Bouv. Inst. n. 1175, et seq. See Insurance
Marine.
MARINE INTEREST, contracts. A compensation paid for the use and
risk of money loaned on respondentia and bottomry; provided the
money be loaned and put in risk, there is no limit as to the
amount which may be lawfully charged by the lender. 2 Marsh. Ins.
749; Hall on Mar. Loans; Pothier, Pret a. la Grosse, n. 19; 1
Stuart's (L. C.) R. 130.
MARINE LEAGUE. A measure equal to the twentieth part of a
degree. Bouch. Inst. n. 1845, not. Vide Cannon Shot; Sea.
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MARINER. One whose occupation is to navigate vessels on the
sea. Vide Seamen Shipping articles.
2. By act of congress, 1 Story, Laws of U. S., ch. 56, s. 4, p.
109, it is provided, that no sum exceeding one dollar shall be
recovered from any seaman or mariner (in the merchant service,)
by any person, for any debt contracted during the time such
seaman or mariner shall actually belong to any ship or vessel,
until the voyage for which such seaman or mariner engaged, shall
be ended.
MARITAGIUM. Anciently that portion which was given with a
daughter in marriage.
2. During the existence of the feudal law, it was the right
which the lord of the fee had, under certain tenures, to dispose
of the daughters of his vassal in marriage. By this word was also
understood marriage. Beames' Glanv. 138, n; Bract. 21 a; Spelm.
Gl. ad voc.; 2 Bl. Com. 69; Co. Litt. 21 b, 76 a.
MARITAL. That which belongs to marriage; as marital rights,
marital duties.
2. Contracts made by a feme sole with a view to deprive her
intended husband of his marital rights, with respect to her
property, are a fraud upon him, and may be set aside in equity.
By the marriage, the husband assumes the duty of paying her
debts, contracted previous to the coverture, and of supporting
her during its existence; and he cannot, therefore, be
fraudulently deprived, by the intended wife, of those rights
which enable him to perform the duties which attach to him. 2
Cha. R. 42; Newl. Contr. 424; 1 Vern. 408; 2 Vern. 17; 2 P.
Wms. 357, 674; 2 Bro. C. C. 345; 1 Ves. jr. 22; 2 Cox, R. 28;
2 Beav. 528; 2 Ch. R. 81; White's. L. C. in Eq. *277; 1 Hill,
Ch. R. 1, 4; 13 Maine, R. 124; 1 McMull. Eq. R. 237 3 Iredell's
Eq. R. 487; 4 Wash. C. C. R. 224.
MARITAL PORTION. In Louisiana, this name is given to that part
of a deceased husband's estate, to which the widow is entitled.
Civil Code, 334, art. 55; 3 Mart. N. S. 1.
MARITIME. That which belongs to or is connected with the sea.
MARITIME CAUSE. Maritime causes are those arising from maritime
contracts, whether made at sea or on land, that is, such as
relate to the commerce, business or navigation of the sea; as,
charter parties, affreightments, marine loans, hypothecations,
contracts for maritime service in building, repairing, supplying
and navigating ships, contracts and quasi contracts respecting
averages, contributions and jettisons; contracts relating to
marine insurance, and those between owners of ships. 3 Bouv.
Inst. n. 2621.
2. There are maritime causes also for torts and injuries
committed at sea.
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3. In general, the courts of admiralty have a concurrent
jurisdiction with courts of law, of all maritime causes: and in
some cases they have exclusive jurisdiction.
MARITIME CONTRACT. One which relates to the navigation of the
sea.
2. The admiralty has jurisdiction in case of the breach of such
contract, whether it has been entered into on land or at sea. 4
Wash. C. C. R. 453; see 2 Gallis. 465; 2 Sumn. 1; Gilp. 529.
MARITIME LAW. That system of law which relates to the affairs
of the sea, such as seamen, ships, shipping, navigation, and the
like.
MARITIME LOAN. A contract or agreement by which one, who is the
lender, lends to another, who is the borrower, a certain sum of
money, upon condition that if the thing upon which the loan has
been made, should be lost by any peril of the sea, or vis major,
the lender shall not be repaid, unless what remains shall be
equal to the sum borrowed; and if the thing arrive in safety, or
in case it shall not have been injured, but by its own defects or
the fault of the master or mariners, the borrower shall be bound
to return the sum borrowed, together with a certain sum agreed
upon as the price of the hazard incurred. Emer. Mar. Loans, c. 1,
s. 2; Poth. h. t. Vide Bottomry; Gross Adventure; Interest,
maritime; Respondentia.
MARITIME PROFIT, mar. law. The French writers use the term
maritime profit to signify any profit derived from a maritime
lean. Vide Interest maritime.
MARK. This term has several acceptations. 1. It is a sign
traced on paper or parchment, which stands in the place of a
signature, usually made by persons who cannot write. 2 Cart. R.
324; M. & M. 516; 12 Pet. 150; 7 Bing. 457; 2 Ves. 455; 1 V.
& B. 362; 1 Ves., jr. 11. A mark is now held to be a good
signature, though the party was able to write. 8 Ad. & El. 94; 3
Nev. & Per. 228; 3 Curt. 752; 5 John. 144. Vide Subscription.
2. - 2. It is the sign, writing or ticket put upon manufactured
goods to distinguish them from others. Poph. R. 144; 3 B & C.
541; 2 Atk. R. 485; 2 V. & B. 218; 3 M. & C. 1; Ed. Inj. 814.
Vide Trade Marks.
3. - 3. Mark or marc, denotes a weight used in several parts of
Europe, and for several commodities, especially gold and silver.
When gold and silver are sold by the mark, it is divided into
twenty-four carats.
4. - 4. Mark is also in England a money of accounts, and in
some other countries a coin. The English marc is two-thirds of a
pound sterling, or 13s. 4d., and the Scotch mark is of equal
value in Scotch money of account. Encyc. Amer. h. t.
MARKET. A public place appointed by public authority, where all
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sorts of things necessary for the subsistence, or for the
conveniences of life, are sold.
2. Markets are generally regulated by local laws.
3. By the term market is also understood the demand there is
for any particular article; as, the cotton market in Europe is
dull. Vide 15 Vin. Ab. 42; Com. Dig. h. t.
MARKET OVERT, Engl. law. Market overt is an open or public
market; that is, a place appointed by law or custom for the sale
of goods and chattels at stated times in public.
2. In London, every day except Sunday, is market day. In the
country, particular days are fixed for market days. 2 Bl. Com.
449.
3. It is a general rule that sales of vendible articles made in
market overt, are good not only between the parties, but are also
binding on all those who have any property or right therein. Id.
2 Chitt. Com. Law, 148 to 154; Com. Dig. Market, E; Bac. Abr.
Fairs and Market, E; 5 B. & A. 624; Dane's Abr. chap. 45, a 2.
4. There is no law recognizing the effect of a sale in market
overt in Pennsylvania. 3 Yeates R. 347; 5 Serg. & Rawle, 130;
in New York; 1 Johns, 480; in Massachusetts; 8 Mass. R. 521;
14 Mass. R. 500; in Ohio; 5 Ohio, R. 203; nor in Vermont. 1
Tyl. R. 341; nor indeed in any of the United States. 10 Pet.
161.
MARLEBRIDGE, STATUTE OF. The name of a statute passed the 52
Hen. III, A. D. 1267, so called because it was enacted at
Marlebridge. Barr. on Stat. 58.
MARQUE AND REPRISAL. The name given to a commission granted by
the supreme power of a state to a private person for the purpose
of seizing the property of a foreign state or its subjects.
Wheat. Law of Nations, 340. Vide Letters of Marque.
MARRIAGE. A contract made in due form of law, by which a free
man and a free woman reciprocally engage to live with each other
during their joint lives, in the union which ought io exist
between husband and wife. By the terms freeman and freewoman in
this definition are meant, not only that they are free and not
slaves, but also that they are clear of all bars to a lawful
marriage. Dig. 23, 2, 1; Ayl. Parer. 359; Stair, Inst. tit. 4,
s. 1; Shelford on Mar. and Div. c. 1, s. 1.
2. To make a valid marriage, the parties must be willing to
contract, Able to contract, and have actually contracted.
3. - 1. They must be willing to contract. Those persons,
therefore, who have no legal capacity in point of intellect, to
make a contract, cannot legally marry, as idiots, lunatics, and
infant; males under the age of fourteen, and females under the
age of twelve, and when minors over those ages marry, they must
have the consent of their parents or guardians.
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4. There is no will when the person is mistaken in the party
whom he intended to marry; as, if Peter intending to marry
Maria, through error or mistake of person, in fact marries Eliza;
but an error in the fortune, as if a man marries a woman whom he
believes to be rich, and he finds her to be poor; or in the
quality, as if he marry a woman whom he took to be chaste, and
whom he finds of an opposite character, this does not invalidate
the marriage, because in these cases the error is only of some
quality or accident, and not in the person. Poynt. on Marr. and
Div. ch. 9.
5. When the marriage is obtained by force or fraud, it is clear
that there is no consent; it is, therefore, void ab initio, and
may be treated as null by every court in which its validity may
incidentally be called in question. 2 Kent, Com. 66; Shelf. on
Marr. and Div. 199; 2 Hagg. Cons. R. 246; 5 Paige, 43.
6. - 2. Generally, all persons who are of sound mind, and have
arrived to years of maturity, are able to contract marriage. To
this general rule, however, there are many exceptions, among
which the following may be enumerated.
7. - 1. The previous marriage of the party to another person
who is still living.
8. - 2. Consanguinity, or affinity between the parties within
the prohibited degree. It seems that persons in the descending or
ascending line, however remote from each other, cannot lawfully
marry; such marriages are against nature; but when we come to
consider collaterals, it is not so easy to fix the forbidden
degrees, by clear and established principles. Vaugh. 206; S. C.
2 Vent. 9. In several of the United States, marriages within the
limited degrees are made void by statute. 2 Kent, Com. 79; Vide
Poynt. on Marr. and Div. ch. 7.
9. - 3. Impotency, (q. v.) which must have existed at the time
of the marriage, and be incurable. 2 Phill. Rep. 10; 2 Hagg.
Rep. 832.
10. - 4. Adultery. By statutory provision in Pennsylvania, when
a person is convicted of adultery with another person, or is
divorced from her husband, or his wife, he or she cannot
afterwards marry the partner of his or her guilt. This provision
is copied from the civil law. Poth. Contr. de Mariage, part 3, c.
3, art. 7. And the same provision exists in the French code
civil, art. 298. See 1 Toull. n. 555.
11. - 3. The parties must not only be willing and able, but
must have actually contracted in due form of law.
12. The common law requires no particular ceremony to the valid
celebration of marriage. The consent of the parties is all that
is necessary, and as marriage is said to be a contract jure
gentium, that consent is all that is needful by natural or public
law. If the contract be made per verba de presenti, or if made
per verba de futuro, and followed by consummation, it amounts to
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a valid marriage, and which the parties cannot dissolve, if
otherwise competent; it is not necessary that a clergyman should
be present to give validity to the marriage; the consent of the
parties may be declared before a magistrate, or simply before
witnesses; or subsequently confessed or acknowledged, or the
marriage may even be inferred from continual cohabitation, and
reputation as husband and wife, except in cases of civil actions
for adultery, or public prosecutions for bigamy. 1 Silk. 119; 4
Burr. 2057; Dougl. 171; Burr. Settl. Cas. 509; 1 Dow, 148; 2
Dow, 482; 4 John. 2; 18 John. R. 346; 6 Binn, 405; 1 Penn. R.
452; 2 Watts, R. 9. But a promise to marry at a future time,
cannot, by any process of law, be converted into a marriage,
though the breach of such promise will be the foundation of an
action for damages.
13. In some of the states, statutory regulations have been made
on this subject. In Maine and Massachusetts, the marriage must be
made in the presence, and with the assent of a magistrate, or a
stated or ordained minister of the gospel. 7 Mass. Rep. 48; 2
Greenl. Rep. 102. The statute of Connecticut on this subject,
requires the marriage to be celebrated by a clergyman or
magistrate, and requires the previous publication of the
intention of marriage, and the consent of parents; it inflicts a
penalty on those who disobey its regulations. The marriage,
however, would probably be considered valid, although the
regulations of the statutes had not been observed. Reeve's Dom.
Rel. 196, 200, 290. The rule in Pennsylvania is, that the
marriage is valid, although the directions of the statute have
not been observed. 2 Watts, Rep. 9; 1 How. S. C. R. 219. The
same rule probably obtains in New Jersey; 2 Halsted, 138; New
Hampshire; 2 N. H. Rep. 268; and Kentucky. 3 Marsh. R. 370. In
Louisiana, a license must be obtained from the parish judge of
the parish in which at least one of the parties is domiciliated,
and the marriage must be celebrated before a priest or minister
of a religious sect, or an authorized justice of the peace; it
must be celebrated in the presence of three witnesses of full
age, and an act must be made of the celebration, signed by the
person who celebrated the marriage, by the parties and the
witnesses. Code, art. 101 to 107. The 89th article of the Code
declares, that such marriages only are recognized by law, as are
contracted and solemnized according to the rules which it
prescribes. But the Code does not declare null a marriage not
preceded by a license, and not evidenced by an act signed by a
certain number of witnesses and the parties, nor does it make
such an act exclusive evidence of the marriage. The laws relating
to forms and ceremonies are directory to those who are authorized
to celebrate marriage. 6 L. R. 470.
14. A marriage made in a foreign country, if good there, would,
in general, be held good in this country, unless when it would
work injustice, or be contra bonos mores, or be repugnant to the
settled principles and policy of our laws. Story, Confl. of Laws,
§87; Shelf. on M. & D. 140; 1 Bland. 188; 2 Bland. 485; 3
John. Ch. R. 190; 8 Ala. R. 48.
15. Marriage is a contract intended in its origin to endure
till the death of one of the contracting parties. It is dissolved
by death or divorce.
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16. In some cases, as in prosecutions for bigamy, by the common
law, an actual marriage must be proved in order to convict the
accused. See 6 Conn. R. 446. This rule is much qualified. See
Bigamy.
17. But for many purposes it may be proved by circumstances;
for example, cohabitation; acknowledgment by the parties
themselves that they were married; their reception as such by
their friends and relations; their correspondence, on being
casually separated, addressing each other as man and wife; 2 Bl.
R. 899; declaring, deliberately, that the marriage took place in
a foreign country; 2 Moo. & R. 503; describing their children,
in parish registers of baptism, as their legitimate offspring; 2
Str. 1073; 8 Ves. 417; or when the parties pass for husband and
wife by common reputation. 1 Bl. R. 639; S. C. 4 Burr. 2057;
Dougl. 174; Cowp. 594; 3 Swans. R. 400; 8 S. & R. 159; 2
Hayw. R. 3; 1 Taylor, R. 121; 1 H. & McH. 152; 2 N. & McC.
114; 5 Day, R. 290; 4 R. & M. 507; 9 Mass. R. 414; 4 John.
52; 18 John. 346. After their death, the presumption is
generally conclusive. Cowp. 591; 6 T. R. 330.
18. The civil effects of marriage are the following: 1. It
confirms all matrimonial agreements between the parties.
19. - 2. It vests in the husband all the personal property of
the wife, that which is in possession absolutely, and choses in
action, upon the condition that he shall reduce them to
possession; it also vests in the husband right to manage the
real estate of the wife, and enjoy the profits arising from it
during their joint lives, and after her death, an estate by the
curtesy when a child has been born. It vests in the wife after
the husband's death, an estate in dower in the husband's lands,
and a right to a certain part of his personal estate, when he
dies intestate. In some states, the wife now retains her separate
property by statute.
20. - 3. It creates the civil affinity which each contracts
towards the relations of the other.
21. - 4. It gives the husband marital authority over the person
of his wife.
22. - 5. The wife acquires thereby the name of her husband, as
they are considered as but one, of which he is the head: erunt
duo in carne unƒ.
23. - 6. In general, the wife follows the condition of her
husband.
24. - 7. The wife, on her marriage, loses her domicil and gains
that of her husband.
25. - 8. One of the effects of marriage is to give paternal
power over the issue.
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26. - 9. The children acquire the domicil of their father.
27. - 10. It gives to the children who are the fruits of the
marriage, the rights of kindred not only with the father and
mother, but all their kin.
28. - 11. It makes all the issue legitimate.
Vide, generally, 1 Bl. Com. 433; 15 Vin. Ab. 252; Bac. Ab. h.
t.; Com. Dig. Baron and Feme, B; Id. Appx. b. t.; 2 Sell. Pr.
194; Ayl. Parergon, 359; 1 Bro. Civ. Law, 94; Rutherf. Inst.
162; 2 Supp. to Ves. jr. 334; Roper on Husband & Wife; Poynter
on Marriage and Divorce; Merl. RŠpert. h. t.; Pothier, Trait‚
du Contrat de Marriage; Toullier, h. t.; Chit. Pract. Index, h.
t.; Dane's Ab. Index, h. t., Burge on the Confl. of Laws, Index,
h. t.; Bouv. Inst. Index, h. t.
MARRIAGE BROKAGE. By this expression is meant the act by which
a person interferes, for a consideration to be received by him,
between a man and a woman, for the purpose of promoting a
marriage between them. The money paid for such service is also
known by this name.
2. It is a doctrine of the courts of equity that all marriage
brokage contracts are utterly void, as against public policy;
and are, therefore, incapable of confirmation. 1 Fonb. Eq. B. 1,
ch. 4, s. 10, note a; 1 Story, Eq. Jur. §263; Newl. on Contr.
469.
MARRIAGE PORTION. That property which is given to a woman on
her marriage. Vide Dowry.
MARRIAGE, PROMISE OF. A promise of marriage is a contract
entered into between a man and woman that they will marry each
other.
2. When the promise is made between persons competent to
contract matrimony, an action lies for a breach of it. Vide
Promise of Marriage.
MARRIAGE SETTLEMENT. An agreement made by the parties in
contemplation of marriage by which the title to certain property
is changed, and the property to some extent becomes tied up, and
is rendered inalienable. Rice's Eq. R. 315. See 2 Hill, Ch. R. 3;
Ril. Ch. Cas. 76; 8 Leigh, 29; 1 Dev. & Bat. Eq. 389; 2 Dev. &
Bat. Eq. 103; 1 Bald. 344; 15 Mass. 106; 1 Yeates, 221; 7
Pet. 348; 4 Bouv. Inst. n. 3947. Vide Settlement, Contracts.
MARSHAL. An officer of the United States, whose duty it is to
execute the process of the courts of the United States. His
duties are very similar to those of a sheriff.
2. It is enacted by the act to establish the judicial courts of
the United States, 1 Story's L. U. S. 53, as follows:
§27. That a marshal shall be appointed, in and for each
district, for the term of four years, but shall be removable from
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office at pleasure whose duty it shall be to attend the district
and circuit courts, when sitting therein, and also the supreme
court in the district in which that court shall sit: and to
execute throughout the district, all lawful precepts directed to
him, and issued under the authority of the United States, and he
shall have power to command all necessary assistance in the
execution of his duty, and to appoint, as there shall be
occasion, one or more deputies, who shall be removable from
office by the judge of the district court, or the circuit court
sitting within the district, at the pleasure of either. And
before he enters on the duties of his office, he shall become
bound for the faithful performance of the same, by himself and by
his deputies, before the judge of the district court, to the
United States jointly and severally, with two good and sufficient
sureties, inhabitants and freeholders of such district, to be
approved by the district judge, in the sum of twenty thousand
dollars, and shall take before said judge, as shall also his
deputies, before they enter on the duties of their appointment,
the following oath of office: "I, A B, do solemnly swear or
affirm, that I will faithfully execute alI lawful precepts
directed to the marshal of the district of________under the
authority of the United States, and true returns make; and in
all things well and truly, and without malice or partiality,
perform the duties of the office of marshal (or marshal's deputy,
as the case may be) of the district of _________ during my
continuance in said office, and take only my lawful fees. So help
me God."
3. - §28. That in all causes wherein the marshal, or his
deputy, shall be a party, the writs and precepts therein shall be
directed to such disinterested person, as the court, or any
justice or judge thereof may appoint, and the person so appointed
is hereby authorized to execute and return the same. And in case
of the death of any marshal, his deputy or deputies, shall
continue in office unless otherwise specially removed; and shall
execute the same in the name of the deceased, until another
marshal shall be appointed and sworn: And the defaults, or
misfeasances in office of such deputy or deputies in the mean
time, as well as before, shall be adjudged a breach of the
condition of the bond given, as before directed, by the marshal
who appointed them; and the executor or administrator of the
deceased marshal, shall have like remedy for the defaults and
misfeasances in office of such deputy or deputies during such
interval, as they would be entitled to if the marshal had
continued in life, and in the exercise of his said office, until
his successor was appointed, and sworn or affirmed: And every
marshal, or his deputy, when removed from office, or when the
term for which the marshal is appointed shall expire, shall have
power, notwithstanding, to execute all such precepts as may be in
their hands, respectively, at the time of such removal or
expiration of office; and the marshal shall be held answerable
for the delivery to his successors of all prisoners which may be
in his custody at the time of his removal, or when the term for
which he is appointed shall expire, and for that purpose may
retain such prisoners in his custody, until his successor shall
be appointed, and qualified as the law directs.
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4. By the act making certain alterations in the act for
establishing the judicial courts, &c. passed June 9, 1794, 1
Story's L. U. S. 865, it is enacted,
§7. That so much of the act to establish the judicial courts of
the United States, as is, or may be, construed to require the
attendance of the marshals of all the districts at the supreme
court, shall be, and the same is hereby repealed: And that the
said court shall be attended, during its session, by the marshal
of the district only, in which the court shall sit, unless the
attendance of the marshals of other districts shall be required
by special order of the said court.
5. The act of February 28, 1795, 1 Story's L. U. S. 391,
directs,
§9. That the marshals of the several districts, and their
deputies, shall have the same powers, in executing the laws of
the United States, as sheriffs and their deputies, in the several
states, have by law in executing the laws of the respective
states.
6. There are various other legislative provisions in relation
to the duties and rights of marshals, which are here briefly
noticed with reference to the laws themselves.
7. - 1. The act of May 8, 1792, s. 4, provides for the payment
of expenses incurred by the marshal in holding the courts of the
United States, the payment of jurors, witnesses, &c.
8. - 2. The act of April 16, 1817, prescribes the duties of the
marshal in relation to the proceeds of prizes captured by the
public armed ships of the United States and sold by decree of
court.
9. - 3. The resolution of congress of March 3, 1791; the act
of February 25, 1799, s. 5; and the resolution of March 3, 1821;
all relate to the duties of marshals in procuring prisons, and
detaining and keeping prisoners.
10. - 4. The act of April 10, 1806, directs how and for what,
marshals shall give bonds for the faithful execution of their
office.
11. - 5. The act of September 18, 1850, s. 5, prescribes the
duties of the marshal in relation to obeying and executing all
warrants and precepts issued under the provisions of this act,
and the penalties he shall incur for refusing to receive and
execute the said warrants when rendered, and for permitting the
fugitive to escape after arrest, Vide Story's L. U. S. Index, h.
t.; Serg. Const. Law, ch. 25; 2 Dall. 402; United States v.
Burr, 365; Mason's R. 100; 2 Gall. 101; 4 Cranch, 96; 7
Cranch, 276; 9 Cranch, 86, 212; 6 Wheat. 194; 9 Wheat. 645;
Minot, Stat. U. S. Index, h. t.
MARSHALLING SECURITIES, equity. When a party has two funds by
which his debt is secured, and another creditor has a claim only
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on one of these funds, a court of equity will compel the creditor
having a double security to resort to that fund which will leave
the other creditor his security, this is called marshalling
assets. 4 Bouv. Inst. n. 3788; 1 Story, Eq. Jur. §633 Amb. 91;
8 Ves. 389; 9 Ves. 209.
2. Marshalling of assets respects two different funds, and two
different sets of parties, where one set can resort to either
fund, the other only to one. It is grounded on obvious equity. It
does no prejudice to anybody, and it effectuates the testator's
intent. It takes place in favor of simple contract creditors, and
of legatees, devisees and heirs, and in a few other cases, but
not in favor of the next of kin. 4 Bro. C. C. 411; 1 P. Wms.
680.
3. The cases in which a court of equity marshals real and
personal assets for the payment of simple contract debts and
legacies, may be classed as follows: 1. Where there are
specialty and simple contract debts and legacies and lands left
to descend. In this case if the specialty creditors take a
satisfaction for their debts out of the personal estate, the
simple contract creditors first, and then the legatees, shall
stand in the place of the specialty creditors, for obtaining
satisfaction out of the lands, to the amount of so much as was
received by the specialty creditors out of the personal estate.
4. - 2. Where there are specialty and simple contract debts,
and lands are specifically devised. In this case if the creditors
take a satisfaction for their debts out of the personal estate,
the simple contract creditors shall stand in the place of the
specialty creditors for obtaining a satisfaction out of the lands
to the amount of so much as was received by the specialty
creditors out of the personal estate, but then there can be no
relief for the legatees, because there is as much equity to
support the, specific devise of the lands, as to support the
bequest of the legatees.
5. - 3. Where the debts are charged upon the lands. Here the
legatees shall have the personal estate towards their
satisfaction, and if the creditors take it in payment or towards
the discharge of their debts, the legatees shall stand in their
place pro tanto to have a discharge out of the lands.
6. - 4. When simple contract debts and legacies are both
charged on the land. In this case the land shall be sold and all
paid equally. 1 Madd. Ch. Pr. 617.
MARSHALSEA, English law. The name of a prison belonging to the
court of the king's bench.
MARTIAL LAW. Vide Law Martial.
MARYLAND. One of the original states of the United States of
America. The province of Maryland was included in the patent of
the Southern or Virginia company; and upon the dissolution of
that company, it reverted to the crown. Charles the First, on the
20th of June, 1632, granted it by patent to Lord Baltimore. Under
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this charter Maryland continued to be governed, with some short
intervals of interruption, down to the period of the American
Revolution, by the successors of the original proprietor. 1
Chalmer's Annals, 203.
2. Upon the revolution of 1688, the government of Maryland was
seised into the hands of the crown, and was not again restored to
the proprietary until 1716; from that period no alteration
occurred until the American Revolution. Bacon's Laws of Maryland,
1692, 1716.
3. The original constitution of this state was adopted on the
14th day of August, 1776. The present constitution was adopted in
1851.
4. The powers of the government are distributed into the
legislative, the executive, and the judicial.
5. - 1st. The legislature shall consist of two distinct
branches, a senate and a house of delegates, which shall be
styled "The general assembly of Maryland." Art. III. s. 1.
6. - 2. The general assembly shall meet on the first Wednesday
of January, 1852, on the same day, in the year 1853, and on the
same day, 1854, and on the same day in every second year
thereafter, and at no other time, unless convened by the
proclamation of the governor. Art. III. s. 7.
7. - 3. The senate will be considered with reference to the
qualification of the electors; the qualification of the members;
the length of time for which they are elected; and the time of
their election. 1. Every free white male person of twenty-one
years of age or upwards, who shall have been one year next
preceding the election a resident of the state, and for six
months a resident of the city of Baltimore, or of any county in
which he may offer to vote, and being at the time of the
election, a citizen of the United States, shall be entitled to
vote in the ward or election district in which he re-sides, in
all elections hereafter to be held; an& at all such elections
the vote shall be taken by ballot. And in case any county or city
shall be so divided as to form portions of different electoral
districts for the election of congressmen, senator, delegate or
other officer or officers, then to en-title a person to vote for
such officer, he must have been a resident of that part of the
county or city which shall form a part of the electoral district
in which he offers to vote for six months next preceding the
election: but a person who shall have acquired a residence in
such county or city, entitling him to vote at any such election,
shall be entitled to vote in the election district from which he
remoted, until he shall have acquired a residence in the part of
the county or city to which he has removed. Art. I. s. 1. 2. No
person shall be eligible as a senator who at the time of his
election is not a citizen of the United States, and who bas not
resided at least three years next preceding the day of his
election, in this state, and the last year thereof in the county
or city which he may be chosen to represent, if such county or
city shall have been so long established, and if not, then in the
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county from which, in whole or in part, the same may have been
formed; nor shall any person be eligible as a senator unless he
shall have attained the age of twenty-five years. No member of
congress, or person bolding any civil or military office under
the United States, shall be eligible as a senator; and if any
person, after his election as a senator, be elected to congress,
or be appointed to any office, civil or military, under the
government of the United States, his acceptance thereof shall
vacate his seat. No minister or preacher of the gospel of any
denomination, and no person holding any civil office of profit or
trust under the state, except justices of the peace, shall be
eligible as senator. Art. III. ss. 9, 10, 11. 3. Every county of
the state, and the city of Baltimore, shall be entitled to elect
one senator, who shall serve for four years from the day of their
election. The first election shall take place on the first
Wednesday of November, 1851, and an election for one-half the
senators, as nearly as practicable, shall be held on the same day
every second year thereafter. Art. III. 2, 3, 4, 5.
8. - 4. The house of delegates will be treated of in the same
manner which has been observed in considering the senate. 1. The
electors are qualified in the same manner as the electors of the
senate. 2. No person shall be a delegate who shall not have
attained the age of twenty-one years; the other qualifications
are the same as those for a senator. 3. The whole number of
delegates shall never exceed eighty, nor be less than sixty-five,
and shall be apportioned among the several counties according to
the population of each, the city of Baltimore to have four more
delegates than the most populous county; no county to have less
than two delegates, the apportionment to be made after the
returns of the national census in 1860 are published, and in like
manner after each subsequent census. They are to serve two years
from the day of their election, which takes place on the same day
as that for senators.
9. - 1. The executive power of the state shall be vested in a
governor, whose term of office shall commence on the second
Wednesday of January next ensuing his election, and continue for
four years, and until his successor shall have qualified.
10. - 2. The first election for governor under this
constitution shall be held on the first Wednesday of November, in
the year eighteen hundred and fifty-three, and on the same day
and month in every fourth year thereafter, at the places of
voting for delegates to the general assembly, and every person
qualified to vote for delegates shall be qualified, and entitled
to vote for governor; the election to be held in the same manner
as the election of dele-gates, and the returns thereof, under
seal, to be addressed to the speaker of the house of delegates,
and enclosed and transmitted to the secretary of state, and
delivered to the said speaker at the commencement of the session
of the legislature next ensuing said election.
11. - 3. The speaker of the house of delegates shall then open
the said returns in the presence of both houses, and the person
having the highest number of votes, and being constitutionally
eligible, shall be the governor, and shall qualify in the manner
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herein prescribed, on the second Wednesday of January next
ensuing his election, or as soon thereafter as may be
practicable.
12. - 4. If two or more persons shall have the highest and an
equal number of votes, one of them shall be chosen governor by
the senate and house of delegates; and all questions in relation
to the eligibility of governor, and to the returns of said
election, and to the number and legality of votes therein given,
shall be determined by the house of delegates. And if the person
or persons having the highest number of votes be ineligible, the
governor shall be chosen by the senate and house of delegates.
Every election of governor, by the legislature, shall be
determined by a joint majority of the senate and house of
delegates, and the vote shall be taken viva voce. But if two or
more persons shall have the highest and an equal number of votes,
then a second vote shall be taken, which shall be confined to the
persons having an equal number; and if the votes should again be
equal, then the election of governor shall be determined by lot
between those who shall have the highest and an equal number on
the first vote.
13. - 5. The state shall be divided into three districts. St.
Mary's, Charles, Calvert, Prince George's, Anne Arundle,
Montgomery, and Howard counties, and the city of Baltimore to be
the first; the eight counties of the Eastern shore to be the
second; and Baltimore, Harford, Frederick, Washington, Allegany,
and Carroll counties, to be the third. The governor, elected from
the third district in October last, shall continue in office
during the term for which he was elected. The governor shall be
taken from the first district, at the first election of governor
under this constitution; from the second district at the second
election, and from the third district at the third election, and
in like manner, afterwards, from each district, in regular
succession.
14. - 6. A person to be eligible to the office of governor,
must have attained the age of thirty years, and been for five
years a citizen of the United States, and for five years next
preceding his election a resident of the state, and for three
years a resident of the district from which he was elected.
15. - 7. In case of the death or resignation of the governor,
or of his removal from the state, the general assembly, if in
session, or if not, at their next session, shall elect some other
qualified resident of the same district, to be the governor for
the residue of the term for which the said governor had been
elected.
16. - 8. In case of any vacancy in the office of governor
during the recess of the legislature, the president of the senate
shall discharge the duties of said office till a governor is
elected as herein provided for; and in case of the death or
resignation of said president, or of his removal from the state,
or of his refusal to serve, then the duties of said office shall,
in like manner, and for the same interval, devolve upon the
speaker of the house of dele-gates, and the legislature may
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provide by law for the case of impeachment or inability of the
governor, and declare what person shall perform the executive
duties during such impeachment or inability; and for any vacancy
in said office, not herein provided for, provision may be made by
law, and if such vacancy should occur without such provision
being made, the legislature shall be convened by the secretary of
state for the purpose of filling said vacancy.
17. - 9. The governor shall be commander-in-chief of the land
and naval forces of the state, and may call out the militia to
repel invasions, suppress insurrections, and enforce the
execution of the laws; but shall not take the command in person
without the consent of the legislature.
18. - 10. He shall take care that the laws be faithfully
executed.
19. - 11. He shall nominate, and by and with the advice and
consent of the senate, appoint all civil and military officers of
the state, whose appointment or election is not otherwise herein
provided for, unless a different mode of appointment be
prescribed by the law creating the office.
20. - 12. In case of any vacancy during the recess of the
senate, in any office which the governor has power to fill, he
shall appoint some suitable person to said office, whose
commission shall continue in force till the end of the next
session of the legislature, or till some other person is
appointed to the same office, whichever shall first occur, and
the nomination of the person thus a pointed during the recess, or
of some other person in his place, shall be made to the senate
within thirty days after the next meeting of the legislature.
21. - 13. No person, after being rejected by the senate, shall
be again nominated for the same office at the same seision,
unless at the request of the senate; or be appointed to the same
office during the recess of the legislature.
22. - 14. All civil officers appointed be the governor and
senate shall be nominated to the senate within fifty days from
the commencement of each regular session of the legislature; and
their term of office shall commence on the first Monday of May
next ensuing their appointment, and continue for two years
(unless sooner removed from office) and until their successors,
respectively, qualify according to law.
23. - 15. The governor may suspend or arrest any military
officer of the state for disobedience of orders, or other
military offence, and may remove him in pursuance of the sentence
of a court-martial; and may remove for incompetency or
misconduct, all civil officers, who receive appointments from the
executive for a term not succeeding two years.
24. - 16. The governor may convene the legislature, or the
senate alone, on extraordinary occasions; and whenever, from the
presence of an enemy or from any other cause, the seat of
government shall become an unsafe place for the meeting of the
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legislature, he may direct their sessions to be held at some
other convenient place.
25. - 17. It shall be the duty of the governor semi-annually,
and oftener if he deem it expedient, to examine the bankbook,
account books, and official proceedings of the treasurer anA
comptroller of the state.
26. - 18. He shall, from time to time, inform the legislature
of the condition of the state, and recommend to their
consideration such measures as he may judge necessary and
expedient.
27. - 19. He shall have power to grant reprieves and pardons,
except in cases of impeachment, and in cases in which he is
prohibited by other articles of this constitution, and to remit
fines and forfeitures for offences against the state; but shall
not remit the principal or interest of any debt due to the state,
except in cases of fines and forfeitures; and before granting a
nolle prosequi, or pardon, he shall give notice, in one or more
newspapers, of the application made for it, and of the day on or
after which his decision will be given; and in every case in
which he exercises this power, he shall report to either branch
of the legislature. Whenever required, the petitions,
recommendations and reasons which influence his decision.
28. - 20. The governor shall reside at the seat of government,
and shall receive for his services an annual salary of thirty-six
hundred dollars.
29. - 21. When the public interest requires it, he shall have
power to employ counsel, who shall be entitled to such
compensation as the legislature may allow in each case after the
services of such counsel shall have been performed.
29. - 22. A secretary of state shall be appointed by the
governor, by and with the advice and consent of the senate, who
shall continue in office, unless sooner removed by the governor,
till the end of the official term of the governor from whom he
received his appointment, and shall receive an annual salary of
one thousand dollars.
30. - 23. He shall carefully keep and preserve a record of all
official acts an proceedings (which may, at all times, be
inspected by a committee of either branch of the legislature,)
and shall perform such other duties as may be prescribed by law
or as may properly belong to his office.
31. - 3d. The judicial power of this state shall be vested in a
court of appeals, in circuit courts, in such courts for the city
of Baltimore as may be hereinafter prescribed, and in justices of
the peace.
32. - 2. The court of appeals shall have appellate jurisdiction
only, which shall be co-extensive with the limits of the state.
It shall consist of a chief justice and three associate justices,
any three of whom shall form a quorum, whose judgment shall be
Bouvier's Law Dictionary : M1 : Page 39 of 202
final and conclusive in all cases of appeals; and who shall have
the jurisdiction which the present court of appeals of this state
now has, and such other appellate jurisdiction as hereafter may
be provided for by law. And in every case decided, an opinion, in
writing, shall be filed, and provision shall be made, by law, for
publishing reports of cases argued and determined in the said
court. The governor, for the time being, by and with the advice
and consent of the senate, shall designate the chief justice, and
the court of appeals shall hold its sessions at the city of
Annapolis, on the first Monday of June, and the first Monday of
December, in each and every year.
33. - 3. The state shall be divided into four judicial
districts: Allegany, Washington, Frederick, Carroll, Baltimore,
and Harford counties, shall compose the first; Montgomery,
Howard, Anne Arundel, Calvert, St. Mary's, Charles and Prince
George's, the second; Baltimore city, the third; and Cecil,
Kent, Queen Anne's, Talbot, Caroline, Dorchester, Somerset, ana
Worcester, shall compose the fourth district. And one person from
among those learned in the law having been admitted to practice
in this this state at least, five years, and above the age of
thirty years at the time of his election, and a resident of the
judicial district, shall be elected from each of said districts
by the legal and qualified voters therein, as a judge of the said
court of appeals, who shall hold his office for the term of ten
years from the time of his election, or until he shall have
attained the age of seventy years, whichever may first happen,
and be reeligible thereto until he shall have attained the age of
seventy years, and not after, subject to removal for
incompetency, wilful neglect of duty, or misbehaviour in office,
on conviction in a court of law, or by the governor upon the
address of the general assembly, two-thirds of the members of
each house concurring in such address; and the salary of each of
the judges of the court of appeals shall be two thousand five
hundred dollars annually, and shall not be increased or
diminished during their continuance in office; and no fees or
perquisites of any kind, shall be allowed by law to any of the
said judges.
34. - 4. No judge of the court of appeals shall sit in any case
wherein he may be interested, or where either of the parties may
be connected with him by affinity or consanguinity within such
degrees as may be prescribed by law, or when he shall have been
of counsel in said case; when the court of appeals, or any of
its members shall be thus disqualified to bear and determine any
case or cases in said court, so that by reason thereof no
judgment can be rendered in said court, the same shall be
certified to the governor of the state, who shall immediately
commission the requisite number of persons learned in the law for
the trial and determination of said case or cases.
35. - 5. All judges of the court of appeals, of the circuit
courts, and of the courts for the city of Baltimore, shall, by
virtue of their offices, be conservator's of the peace throughout
the state.
36. - 6. All public commissions and grants shall run thus:
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"The State of Maryland," &c., and shall be signed by the
governor, with the seal of the state annexed; all writs and
process shall run in the same style, and be tested, sealed and
signed as usual; and all indictments shall conclude "against the
peace, government and dignity of the state."
37. - 7. The state shall be divided into eight judicial
circuits, in manner and form following, to wit; St. Mary's,
Charles, and Prince George's counties shall be the first: Anne,
Arundel, Howard, Calvert and Montgomery counties shall be the
second; Frederick and Carroll counties shall be the third;
Washington and Allegany counties shall be the fourth; Baltimore
city shall be the fifth; Baltimore, Harford and Cecil counties
shall be the sixth; Kent, Queen Anne's, Talbot and Caroline
counties shall be the seventh; and Dorchester, Somerset and
Worcester counties shall be the eighth; and there shall be
elec-ted, as hereinafter directed, for each of the said judicial
circuits, except the fifth, one person from among those learned
in the law, having been admitted to practice in this state, and
who shall have been a citizen of this state at least five years,
and above the age of thirty years at the time of his election,
and a resident of the judicial circuit, to be judge thereof; the
said judges shall be styled circuit judges, and shall
respectively hold a term of their courts at least twice in each
year, or oftener if required by law, in each county composing
their respective circuits; and the said courts shall be called
circuit courts for the county in which they may be held, and
shall have and exercise in the several counties of this state,
all the power, authority and jurisdiction which the county courts
of this state now have and exercise, or which may hereafter be
prescribed by law, and the said judges in their re-spective
circuits, shall have and exercise all the power, authority and
jurisdiction of the present court of chancery of Maryland;
provided, nevertheless, that Baltimore county court may hold its
sittings within the limits of the city of Baltimore, until
provision shall be made by law for the location of a county seat
within the limits of the said county proper, and the erection of
a court house and all other appropriate buildings, for the
convenient administration of justice in said court.
38. - 8. The judges of the several judicial circuits shall be
citizens of the United States, and shall have resided five years
in this state, and two years in the judicial circuit for which
they may be respectively elected, next before the time of their
election, and shall reside therein while they continue to act as
judges; they shall be taken from among those who, having the
other qualifications herein prescribed, are most distinguished
for integrity, wisdom and sound legal knowledge, and shall be
elected by the qualified voters of the said circuits, and shall
hold their offices for the term of ten years, removable for
misbehaviour, on conviction in a court of law or by the governor,
upon the address of the general assembly, provided that
two-thirds of the members of each house shall concur in such
address, and the said judges shall each receive a salary of two
thousand dollars a year, and the same shall not be increased or
diminished during the time of their continuance in office; and
no judge of any court in this state, shall receive any
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perquisite, fee, commission or reward, in addition thereto, for
the performance of any judicial duty.
39. - 9. There shall be established for the city of Baltimore
one court of law, to be styled "the court of common pleas," which
shall have civil jurisdiction in all suits where the debt or
damage claimed shall be over one hundred dollars, and shall not
exceed five hundred dollars; and shall, also, have jurisdiction
in all cases of appeal from the judgment of justices of the peace
in the said city, and shall have jurisdiction in all applications
for the benefit of the insolvent laws of this state, and the
supervision and control of the trustees thereof.
40. - 10. There shall also be established, for the city of
Baltimore, another court of law, to be styled the superior court
of Baltimore city, which shall have jurisdiction over all suits
where the debt or damage claimed shall exceed the sum of five
hundred dollars, and in case any plaintiff or plain-tiffs shall
recover less than the sum or value of five hundred dollars, he or
they shall be allowed or adjudged to pay costs in the discretion
of the court. The said court shall also have jurisdiction as a
court of equity within the limits of the said city, and in all
other civil cases which have not been heretofore assigned to the
court of common pleas.
41. - 11. Each of the said two courts shall consist of one
judge, who shall be elected by the legal and qualified voters of
the said city, and shall bold his office for the term of ten
years, subject to the provisions of this constitution, with
regard to the election and qualification of judges and their
removal from office, and the salary of each of the said judges
shall be twenty-five hundred dollars a year; and the legislature
shall, wherever it may think the same proper and expedient,
provide, by law, another court for the city of Baltimore, to
consist of one judge to be elected by the qualified voters of the
said city, who shall be subject to the same constitutional
provisions, hold his office for the same term of years, and
receive the same compensation as the judge of the court of common
pleas of the said city, and the said court shall have such
jurisdiction and powers as may be prescribed by law.
42. - 12. There shall also be a criminal court for the city of
Baltimore, to be styled the criminal court of Baltimore, which
shall consist of one judge, who shall also be elected by the
legal and qualified voters of the said city, and who shall have
and exercise all the jurisdiction now exercised by Baltimore city
court, and the said judge shall receive a salary of two thousand
dollars a year, and shall be subject, to the provisions of this
constitution with regard to the election and qualifications of
judges, term of office, and removal therefrom.
43. - 13. The qualified voters of the city of Baltimore, and of
the several counties of the state, shall, on the first, Wednesday
of November, eighteen hundred and fifty-one, and on the same day
of the same month in, every fourth year forever thereafter, elect
three men to be judges of the orphans' court of said city and
counties respectively, who shall be citizens of the state of
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Maryland, and citizens of the city or county for which they may
be severally elected at the time of their eiection. They shall
have all the powers now vested in the orphans' courts of this
state, subject to such changes therein as the legislature may
prescribe, and each of said judges shall be paid at a per diem
rate, for the time they are in session, to be fixed by the
legislature, and paid by the said counties and city respectively.
44. - 14. The legislature, at its first session after the
adoption of this constitution, shall fix the number of justices
of the peace and constables for each ward of the city of
Baltimore, and for each election district in the several
counties, who shall be elected by the legal and qualified voters
thereof respectively, at the next general election for delegates
thereafter, and shall hold their offices for two years from the
time of their election, and until their successors in office are
elected and qualified; and the legislature may, from time to
time, increase or diminish the number of justices of the peace
and constables to be elected in the several wards and election
districts, as the wants and interests of the people may require.
They shall be, by virtue of their offices, conservators of the
peace in the said counties and city respectively, and shall have
such duties and compensation as now exist, or may be provided for
by law. In the event of a vacancy in the office of a justice of
the peace, the governor shall appoint a person to serve as
justice of the peace, until the next regular election of said
officers, and in case of a vacancy in the office of constable,
the county commissioners of the county, in which a vacancy may
occur, or the mayor and city council of Baltimore, as the case
may be, shall appoint a person to serve as constable until the
next regular election thereafter for said officers. An appeal
shall lie in all civil cases from the judgment of a justice of
the peace to the circuit court, or, to the court of common pleas
of Baltimore city, as the case way be, and on all such appeals,
either party shall be entitled to a trial by jury, according to
the laws now existing, or which way be hereafter enacted. And the
mayor and city council may provide, by ordinance, from time to
time, for the creation and government of such temporary
additional police, as they may deem necessary to preserve the
public peace.
45. - 15. No judge shall sit in any case wherein he may be
interested, or where either of the parties may be connected with
him by affinity or consan-guinity, within such degrees as may be
prescribed by law, or where he shall have been of counsel in the
case and whenever any of the judges of the circuit courts, or of
the courts for Baltimore city, shall be thus disqualified, or
whenever, by reason of sickness, or any other cause, the said
judges, or any of them, may be unable to sit in any cause, the
parties may, by consent, appoint a proper person to try the said
cause, or the judges, or any of them, shall do so when directed
by law.
46. - 16. The present chancellor and the register in chancery,
and, in the event of any vacancy in their respective offices,
their successors in office respectively, who are to be appointed
as at present, by the governor and senate, shall continue in
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office, with the powers and compensation as at present
established, until the expiration of two years after the adoption
of this constitution by the people, and until the, end of the
session of the legislature next thereafter, after which the said
offices of chancellor and register shall be abolished. The
legislature shall, in the mean time, provide by law for the
recording, safe-keeping, or other disposition, of the records,
decrees and other proceedings of the court of chancery, and for
the copying and attestation thereof, and for the custody and use
of the great seal of the state, when required, after the
expiration of the said two years, and for transmitting to the
said counties, and to the city of Baltimore, all the cases and
proceedings in said court then undisposed of and unfinished, in
such manner, and under such regulations as may be deemed
necessary and proper: Provided, that no new business shall
originate in the said court, nor shall any cause be removed to
the same from any other court, from and after the ratification of
this constitution.
47. - 17. The first election of judges, clerks, registers of
wills, and all other officers, whose election by the people is
provided for in this article of the constitution, except justices
of the peace and constables, shall take place throughout the
state on the first Wednesday of November next after the
ratification of this constitution by the people.
48. - 18. In case of the death, resignation, removal, or other
disqualification of a judge of any of the courts of law, the
governor, by and with the advice and consent of the senate, shall
thereupon appoint a person, duly quali-fied, to fill said office
until the next general election for delegates thereafter; at
which time an election shall be held as hereinbefore prescribed,
for a judge, who shall hold the said office for ten years,
according to the provisions of this constitution.
49. - 19. In case of the death, resignation, removal, or other
disqualification of the judge of an orphans' court, the vacancy
shall be filled by the appointment of the governor, by and with
the advice and consent of the senate.
50. - 20. Whenever lands lie partly in one county, and partly
in another or partly in a county and partly in the city of
Baltimore, or whenever persons proper to be made defendants to
proceedings in chancery, reside some in one county and some in
another, that court shall have jurisdiction in which proceedings
shall have been first commenced, subject to such rules,
regulations and alterations as may be prescribed by law.
51. - 21. In all suits or actions at law, issues from the
orphans' court or from any court sitting in equity, in petitions
for freedom, and in all pre-sentments and indictments now
pending, or which may be pending at the time of the adoption of
this constitution by the people, or which may hereafter be
instituted in any of the courts of law of this state, having
jurisdiction thereof, the judge or judges thereof, upon
suggestion in writing, if made by the state's attorney, or the
prosecutor for the state, or upon suggestion in writing,
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supported by affidavit, made by any of the parties thereto, or
other proper evidence, that a fair and impartial trial cannot be
had in the court where such suit or action at law, issues or
petitions, or presentment and indictment is depending, shall
order and direct the record of proceedings in such suit or
action, issues or petitions, presentment or indictment, to be
transmitted to the court of any adjoining county; provided, that
the removal in all civil causes be confined to an adjoining
county within the judicial circuit, except as to the city of
Baltimore, where the removal may be to an adjoining county, for
trial, which court shall hear and determine the same in like
manner as if such suit or action, issues or petitions,
presentment or indictment, had been originally instituted
therein; and provided also, that such suggestion shall be made
as aforesaid, before or during the term in which the issue or
issues may be joined in said suit or action, issues or petition,
presentment or indictment, and that such further remedy in the
premises may be provided by law, as the legislature shall from
time to time direct and enact.
52. - 22. All election of judges, and other officers provided
for by this constitution, shall be certified, and the returns
made by the clerks of the respective counties to the governor,
who shall issue commissions to the different persons for the
offices to which they shall have been respectively elected; and
in all such elections, the person having the greatest number of
votes, shall be declared to be elected.
53. - 23. If, in any case of election for judges, clerks of the
courts of law and registers of wills, the opposing candidates
shall have an equal number of votes, it shall be the duty of the
governor to order a new election; and in case of any contested
election, the governor shall send the returns to the house of
delegates, who shall judge of the election and qualification of
the candidates at such election.
MASCULINE. That which belongs to the male sex.
2. The masculine sometimes includes the feminine, vide an
example under the article Man, and see also the articles Gender,
Worthiest of blood; Poth. Intr. au titre 16, des Testamens et
Donations Testamentaires, n. 170; Ayl, Pand. 57; 4 C. & P. 216;
S. C. 19 E. C. L. R. 551 3 Fred. Code, pr. 1, b. 1, t. 4, s. 3;
3 Brev. R. 9.
MASSACHUSETTS. One of the original states of the United States
of America. The colony or province of Massachusetts was included
in a charter granted by James the First, by which its territories
were extended in breadth from the 40th to the 48th degree of
north latitude, and in length by all the breadth aforesaid
throughout the mainland from sea to sea. This charter continued
until 1684. Holmes' Annals, 412; 1 Story, Const. §71. In 1691
William and Mary granted a new charter to the colony, and
henceforth it became known as a province, and continued to act
under this charter till after the Revolution. 1 Story, Const.
§71.
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2. The constitution of Massachusetts was adopted by a
convention begun and held at Cambridge, on the first of
September, 1779, and continued, by adjournment, to the second of
March, 1780.
3. The style and name of the state is The Commonwealth of
Massachusetts. The government is distributed into a legislative,
executive and judicial power.
4. - 1st. The department of legislation is formed by two
branches, a senate and house of representatives, each of which
has a negative on the other, and both are styled The General
Court of Massachusetts. Part 2, c. 1, s. 1.
5. - 1. The senate is elected by the qualified electors, and is
composed of forty persons to be counsellors and senators for the
year ensuing their election. Part 2, c. 1, s. 2, art. 1.
6. - 2. The House of representatives is composed of an
indefinite number of persons elected by the towns in proportion
to their population. Part 2, c. 1, s. 3, art. 2.
7. - 2d. The executive power is vested in a governor,
lieutenant governor and council.
8. - 1. The supreme executive magistrate is styled The Governor
of the Commonwealth of Massachusetts. He is elected yearly by the
qualified electors. Part 2, c. 2, s. 1. He is invested with the
veto power. Part 2, c. 1, s. 1, art. 2.
9. - 2. The electors are required to elect annually a
lieutenant governer. When the office of governor happens to be
vacant he acts as governor, and at other times he is a member of
the council. Part 2, c. 2, s. 2, art. 2 and 3.
10. - 3. The council consists of nine persons chosen annually
by the general court; they mast be taken from those returned for
counsellors and senators, unless they will not accept the said
office, when they shall be chosen from the people at large. The
council shall advise the governor in the executive part of the
government. Part 2, c. 2, s. 3, art. 1 and 2.
11. - 3d. The judicial power. The third chapter of part second
of the constitution makes the following provisions in relation to
the judiciary:
Art. 1. The tenure that all commissioned officers shall, by
law, have in their office, shall be expressed in their respective
commissions; all judicial officers, duly appointed,
commissioned, and sworn, shall hold their offices during good
behaviour; excepting such concerning whom there is different
provision made in this constitution; Provided, nevertheless, the
governor, with consent of the council, may remove them upon the
address of both houses of the legislature.
12. - 2. Each branch of the legislature, as well as the
governor and council, shall have authority to require the
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opinions of the justices of the supreme judicial court, upon
important questions of law, and upon solemn occasions.
13. - 3. In order that the people may not suffer from the long
continuance in place of any justice of the peace, who shall fail
of discharging the important duties of his office with ability or
fidelity, all commissions of jus-tices of the peace shall expire
and become void in the term of seven years from their respective
dates; and upon the expiration of any commission, the same may,
if necessary, be renewed, or another person appointed, as shall
most conduce to the well-being of the commonwealth.
14. - 4. The judges of probates of wills, and for granting
letters of administration, shall hold their courts at such place
or places, on fixed days, as the convenience of the people may
require; and the legislature shall, from time to time hereafter,
appoint such times and places: until which appointments, the
said courts shall be holden at the times and places which the
respective judges shall direct.
15. - 5. All causes of marriage, divorce, and alimony, and all
appeals from the judges of probate, shall be heard and determined
by the governor and council, until the legislature shall, by law,
make other provision.
MASTER. This word has several meanings. 1. Master is one who
has control over a servant or apprentice. A master stands in
relation to his apprentices, in loco parentis, and is bound to
fulfil that relation, which the law generally enforces. He is
also entitled to be obeyed by his apprentices, as if they were
his children. Bouv. Inst. Index, h. t.
2. - 2. Master is one who is employed in teaching children,
known generally as a schoolmaster; as to his powers, see
Correction.
3. - 3. Master is the name of an officer: as, the ship
Benjamin Franklin, whereof A B is master; the master of the
rolls; master in chancery, &c.
4. - 4. By master is also understood a principal who employs
another to perform some act or do something for him. The law
having adopted the maxim of the civil law, qui facit per alium
facit per se; the agent is but an instrument, and the master is
civilly responsible for the act of his agent, as if it were his
own, when he either commands him to do an act, or puts him in a
condition, of which such act is a result, or by the absence of
due care and control, either previously in the choice of his
agent, or immediately in the act itself, negligently suffers him
to do an injury. Story, Ag. §454, note; Noy's Max. c. 44; Salk.
282; 1 East. R. 106; 1 Bos. & Pul. 404; 2 H. Bl. 267; 5 Barn.
& Cr. 547; 2 Taunt. R. 314; 4 Taunt. R. 649; Mass. 364, 385;
17 Mass. 479, 509; 1 Pick. 47 5; 4 Watts, 222; 2 Harr. & Gill,
316; 6 Cowen, 189; 8 Pick. 23; 5 Munf. 483. Vide Agent;
Agency; Driver; Servant.
MASTER AT COMMON LAW, Engl. law. An officer of the superior
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courts of law, who has authority for taking affidavits sworn in
court, and administering a variety of oaths; and also empowered
to compute principal and interest on bills of exchange and other
engagements, on which suit has been brought; he has also the
power of an examiner of witnesses going abroad, and the like.
MASTER IN CHANCERY. An officer of the court of chancery.
2. The origin of these officers is thus accounted for. The
chancellor from the first found it necessary to have a number of
clerks, were it for no other purpose, than to perform the
mechanical part of the business, the writing; these soon rose to
the number of twelve. In process of time this number being found
insufficient, these clerks contrived to have other clerks under
them, and then, the original clerks became distinguished by the
name of masters in chancery. He is an assistant to the
chancellor, who refers to him interlocu-tory orders for stating
accounts, computing damages, and the like. Masters in chancery
are also invested with other powers, by local regulations. Vide
Blake's Ch. Pr. 26; 1 Madd. Pr. 8 1 Smith's Ch. Pr. 9, 19.
3. In England there are two kinds of masters in chancery, the
ordinary, and the extraordinary..
4. - 1. The masters in ordinary execute the orders of the
court, upon ref-erences made to them, and certify in writing in
what manner they have executed such orders. 1 Sm. Ch. Pr. 9.
5. - 2. The masters extraordinary perform the duty of taking
affidavits touching any matter in or relating to the court of
chancery, taking the acknowledgment of deeds to be enrolled in
the said court, and taking such recognizances, as may by the
tenor of the order for entering them, be taken before a master
extraordinary. 1 Sm. Ch. Pr. 19. Vide, generally, 1 Harg. Law Tr.
203, a Treatise of the Maister of the Chauncerie.
MASTER OF THE ROLLS. Eng. law. An officer who bears this title,
and who acts as an assistant to the lord chancellor, in the court
of chancery.
2. This officer was formerly one of the clerks in chancery
whose duty was principally confined to keeping the rolls; and
when the clerks in chancery became masters, then this officer
became distinguished as master of the rolls. Vide Master in
Chancery.
MASTER OF A SHIP, mar. law. The commander or first officer of a
ship; a captain. (q. v.)
2. His rights and duties have been considered under the article
Captain. Vide also, 2 Bro. Civ. Adm. Law, 133; 3 Kent, Com. 121;
Wesk. Ins. 360; Park. on Ins. Index, h. t.; Com. Dig.
Navigation, I 4.
MATE. The second officer on board of a merchant ship or vessel.
2. He has the right to sue in the admiralty as a common mariner
for wages. 1. Pet. Adm. Dee. 246.
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3. When, on the death of the master, the mate assumes the
command, he succeeds to the rights and duties of the principal
officer. 1 Sumn. 157; 3 Mason, 161; 4 Mason, 196; See 7 Conn.
239; 4 Mason, 641 4 Wash. C. C. 838.
MATER FAMILIAS, civil law. The mother of a family, and, by
extension, the mistress of a family.
MATERIAL MEN. This name is given to persons who furnish
materials for the purpose of constructing or erecting ships,
houses, and other buildings.
2. By the common law material men have a lien on a foreign ship
for supplies of materials furnished for such ship, which may be
recovered in the admiralty. 9 Wheat. 409. But they have no lien
for furnishing materials for repairs of domestic ships. Wheat.
438.
3. In several of the states, laws have been enacted giving
material men a lien on houses and other buildings when they have
furnished materials for constructing the same.
MATERIALITY. That which is important; that which is not merely
of form but of substance.
2. When a bill for discovery has been filed, for example, the
defendant must answer every material fact which is charged in the
bill, and the test in these cases seems to be that when, if the
defendant should answer in the affirmative, his answer would be
of use to the plaintiff, the answer would be mate-rial, and it
must be made. 4 Price, R. 364; 13 Price, R. 291; 2 Y. & J. 385.
3. In order to convict a witness of a perjury, it is requisite
to prove that the matter he swore to was material to the question
then depending. Vide 3 Chit. Pr. 233; 3 Dowl. 104; 10 Bing.
340; Perjury.
MATERIALS. Everything of which anything is made.
2. When materials are furnished to a workman he is bound to use
them according to his contract, as a tailor is bound to employ
the cloth I furnish him with, to make me a coat that shall fit
me, for if he so make it that I cannot wear it, it is not a
proper employment of the materials. But if the undertaker use
ordinary skill and care, he will not be responsible, although the
mate-rials may be injured; as, if a gem be delivered to a
jeweler, and it is broken without any unskilfulness, negligence
or rashness of the artisan, he will not be liable. Poth. Louage,
n. 428.
3. The workman is to use ordinary diligence in the care of the
materials entrusted with him, or to exercise that caution which a
prudent man takes of his own affairs, and he is also bound to
preserve them from any unexpected danger to which they may be
exposed. 1 Gow. R. 30; 1 Camp. 138.
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4. When there is no special contract between the parties, and
the materials perish while in the possession of the workman or
undertaker, without his default, either by inevitable casualty,
by internal defect, by superior force, by robbery or by any peril
not guarded against by ordinary diligence, he is not responsible.
This is the case only when the material belongs to the em-ployer
and the workman only undertakes to put his work upon it. But a
distinction must be observed in the case when the employer has
engaged a workman to make him an article out of his own
materials, for in that case the employer has no property in it,
until the work be completed, and the article be deli-vered to
him; if, in the mean time, the thing perishes, it is the loss of
the workman, who is wholly its owner, according to the maxim res
perit domino. In the former case the employer is the owner; in
the latter the workman; in the first case it is a bailment, in
the second a sale of the thing in futuro. Domat. B. 1, t. 4, §7,
n. 3; Id. B. 1, t. 4, §8, n. 10.
5. Another distinction must be made in the case when the thing
given by the employer was to become the property of the workman,
and an article was to be made out of similar materials, and
before its completion it perished. In this case the title to the
thing having passed to the workman, the loss must be his. 1
Blackf. 353; 7 Cowen, 752, 756, note; 21 Wend. 85; 3 Mason,
478; Dig. 19, 2, 31; 1 Bouv. Inst. 1006-7.
6. In some of the states by their laws persons who furnish
materials for the construction of a building, have a lien against
such building for the payment of the value of such materials. See
Lien of Mechanics.
MATERNA MATERNIS. This expression is used in the French law to
signify that in a succession the property coming from the mother
of a deceased person, descends to his maternal relations.
MATERNAL. That which belongs to, or comes from the mother: as,
maternal authority, maternal relation, maternal estate, maternal
line. Vide Line.
MATERNAL PROPERTY. That which comes from the mother of the
party, and other ascendants of the maternal stock. Domat, Liv.
Prel. tit. 3, s. 2, n. 12.
MATERNITY. The state or condition of a mother.
2. It is either legitimate or natural. The former is the
condition of the mother who has given birth to legitimate
children, while the latter is the condition of her who has given
birth to illegitimate children. Maternity is always certain,
while the paternity (q. v.) is only presumed.
MATERTERA. Maternal aunt; the sister of one's mother. Inst. 3,
4, 3; Dig. 38, 10, 10, 14.
MATHEMATICAL EVIDENCE. That evidence which is established by a
demonstration. It is used in contradistinction to moral evidence.
(q. v.)
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MATRICULA, civil law. A register in which are inscribed the
names of persons who become members of an association or society.
Dig. 50, 3, 1. In the ancient church there was matricula
clericorum, which was a catalogue of the officiating clergy; and
matricula pauperum, a list of the poor to be relieved; hence to
be entered in the university is to be matriculated.
MATRIMONIAL CAUSES. In the English ecclesiastical courts there
are five kinds of causes which are classed under this head. 1.
Causes for a malicious jactitation. 2. Suits for nullity of
marriage, on account of fraud, incest, or other bar to the
marriage. 2 Hagg. Cons. Rep. 423. 3. Suits for restitution of
conjugal rights. 4. Suits for divorces on account of cruelty or
adultery, or causes which have arisen since the marriage. 5.
Suits for alimony.
MATRIMONIUM. By this word is understood the inheritance
descending to a man, ex parti matris. It is but little used.
2. Among the Romans this word was employed to signify marriage;
and it was so called because this conjunction was made with the
design that the wife should become a mother. Inst. 1, 9, 1.
MATRIMONY. See Marriage.
MATRINA. A godmother.
MATRON. A married woman, generally an elderly married woman.
2. By the laws of England, when a widow feigns herself with
child, in order to exclude the next heir, and a supposititious
birth is expected, then, upon the writ de ventre inspiciendo, a
jury of women is to be, impanneled to try the question, whether
with child or not. Cro, Eliz. 566. So when a woman was sentenced
to death, and she declared herself to be quick with child, a jury
of matrons is impanneled to try whether she be or be not with
child. 4 Bl. Com. 395. See Pregnancy; Quick with child.
MATTER. Some substantial or essential thing, opposed to form;
facts.
MATTER IN PAYS. Literally, matter in the country; matter of
fact, as distinguished from matter of law, or matter of record.
Steph. Pl. 197. Vide Country.
MATTER IN DEED. Matter in deed is such matter as may be proved
or established by a deed or specialty. In another sense it
signifies matter of fact, in contradistinction to matter of law.
Co. Litt. 320; Steph. Pl. 197.
MATTER OF FACT, pleading. Matter which goes in denial of a
declaration, and Dot in avoidance of it. Bac. Ab. Pleas, &c. G 3;
Hob. 127.
MATTER OF LAW, pleading. That which goes in avoidance of a
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declaration or other pleading, on the ground that the law does
not authorize them. It does not deny the matter or fact contained
in such pleading, but admitting them avoids them. Bac. Ab. Pleas,
&c. G 3. Matter of law, is that which is referred to the decision
of the court; matter of fact that which is submitted to the
jury.
MATTER OF RECORD. Those facts which may be proved by the
production of a record. It differs from matter in deed, which
consists of facts which may be proved by specialty. Vide
Estoppel.
MATTER, IMPERTINENT, Equity pleading. That which is altogether
irrelevant to the case, that does not appertain or belong to it;
id est, qui ad rem non pertinet. 4 Bouv. Inst. n. 4163 . See
Impertinent.
MATTER, SCANDALOUS, equity pleading. A false and malicious
statement of facts, not relevant to the cause. But nothing which
is positively relevant, however harsh or gross the charge may be,
can be considered scandalous. 4 Bouv. Inst. n. 4163.
2. A bill cannot by the general practice, be referred for
impertinence after the defendant has answered, or submitted to
answer, but it may be referred for scandal at any time, and even
upon the application of a stranger to the suit, for he has the
right to prevent the records of the court from being made the
vehicle of spreading slanders against himself. Id. n. 41f 64.
MATURITY. The time when a bill or note becomes due. In order to
bind the endorsers such note or bill must be protested, when not
paid, on the last day of grace. See Days of grace.
MAXIM. An established principle or proposition. A principle of
law universally admitted, as being just and consonant With
reason.
2. Maxims in law are somewhat like axioms in geometry. 1 Bl.
Com. 68. They are principles and authorities, and part of the
general customs or common law of the land; and are of the same
strength as acts of parliament, when the judges have determined
what is a maxim; which belongs to the judges and not the jury.
Terms do Ley; Doct. & Stud. Dial. 1, c. 8. Maxims of the law are
holden for law, and all other cases that may be applied to them
shall be taken for granted. 1 Inst. 11. 67; 4 Rep. See 1 Com. c.
68; Plowd. 27, b.
3. The application of the maxim to the case before the court,
is generally the only difficulty. The true method of making the
application is to ascertain bow the maxim arose, and to consider
whether the case to which it is applied is of the same character,
or whether it is an exception to an apparently general rule.
4. The alterations of any of the maxims of the common law are
dangerous. 2 Inst. 210. The following are some of the more
important maxims.
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A communi observantia non est recedendum. There should be no
departure from common observance or usage. Co. Litt. 186.
A l'impossible nul n'est tenu. No one is bound to do what is
impossible. 1 Bouv. Inst. n. 601.
A verbis legis non est recedendum. From the words of the law
there must be no departure. Broom's Max. 268; 5 Rep. 119; Wing.
Max. 25.
Absentia ejus qui reipublicae causa abest, neque ei, neque alii
damnosa esse debet. The absence of him who is employed in the
service of the state, ought not to be burdensome to him nor to
others. Dig. 50, 17, 140.
Absoluta sentetia expositore non indiget. An absolute
unqualified sentence or proposition, needs no expositor. 2 Co.
Inst. 533.
Abundaans cautela non nocet. Abundant caution does no harm. 11
Co. 6.
Accessorius sequit naturam sui principalis. An accessary
follows the nature of his principal. 3 Co. Inst. 349.
Accessorium non ducit sed sequitur suum principale. The
accessory does not lead, but follow its principal. Co. Ltt 152.
Accusare nemo debet se, nisi coram Deo. No one ought to accuse
himself, unless before God. Hard. 139.
Actio exteriora indicant interiora secreta. External actions
show internal secrets. 8 Co. R. 146.
Actio non datur non damnificato. An action is not given to him
who has received no damages.
Actio personalis moritur cum persona. A personal action dies
with the person. This must be understood of an action for a tort
only.
Actor qui contra regulam quid adduxit, non est audiendus. He
ought not to be heard who advances a proposition contrary to the
rules of law.
Actor sequitur forum rei. The plaintiff must follow the forum
of the thing in dispute.
Actore non probante reus absolvitur. When the plaintiff does
not prove his case, the defendant is absolved.
Actus Dei nemini facit injuriam. The act of God does no injury;
that is, no one is responsible for inevitable accidents. 2
Blacks. Com. 122. See Act of God.
Actus incaeptus cujus perfectio pendet, ex voluntate partium,
revocari potest; si autem pendet ex voluntate tertia personae,
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vel ex contingenti, revocari non potest. An act already begun,
the completion of which depends upon the will of the parties, may
be recalled; but if it depend on the consent of a third person,
or of a contingency, it cannot be recalled. Bacon's Max. Reg. 20.
Actus me invito factus, non est meus actus. An act done by me
against my will, is not my act.
Actus non reum facit, nisi mens sit rea. An act does not make a
person guilty, unless the intention be also guilty. This maxim
applies only to criminal cases; in civil matters it is
otherwise. 2 Bouv. Inst. n. 2211.
Actus legitimi non recipiunt modum. Acts required by law to be
done, admit of no qualification. Hob. 153.
Actus legis nemini facit injuriam, The act of the law does no
one an injury. 5 Co. 116.
Ad proximum antecedens fiat relatio, nisi impediatur sententia.
The antecedent bears relation to what follows next, unless it
destroys the meaning of the sentence.
Ad quaestiones facti non respondent judices; ad quaestione
legis non respondent juratores. The judges do not answer to
questions of fact; the jury do not answer to questions of law.
Cu. Litt. 295.
Aestimatio praeteriti delicti ex postremo facto nunquam
crescit. The estimation of a crime committed never increased from
a subsequent fact. Bac. Max. Reg. 8.
Ambiguitas verborum latens verificatione suppletur; nam quod
exfacto oritur ambiguum verificatione facti tollitur. A hidden
ambiguity of the words is supplied by the verification, for
whatever ambiguity arises concerning the deed itself is removed
by the verification of the deed. Bacon's Max. Reg. 23.
Aqua cedit solo. The water yields or accompanies the soil. The
grant of the soil or land carries the water.
Aqua curit et debet currere. Water runs and ought to run. 3
Rawle, 84, 88.
Aequitas agit in personam. Equity acts upon the person. 4 Bouv.
Inst. n. 3733.
Aequilas sequitier legem. Equity follows the law. 1 Story, Eq.
Jur. §64.; 3 Wooddes. Lect. 479, 482.
Aequum et bonum, est lex legum. What is good and equal, is the
law of laws. Hob. 224.
Affirmati, non neganti incumbit probatio. The proof lies upon
him who affirms, not on him who denies.
Aliud est celare, aliud tacere. To conceal is one thing, to be
silent another.
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Alternatica petitio non est audienda. An alternate petition is
not to be heard. 5 Co. 40.
Animus ad se omne jus ducit. It isto the intention that all law
applies.
Animus moninis est anima scripti. The intention of the party is
the soul of the instrument. 3 Bulstr. 67.
Apices juris non sunt jura. Points of law are not laws. Co.
Litt. 304; 3 Scott, N. P. R. 773.
Arbitrium est judicium. An award is a judgment. Jenk Cent. 137.
Argumentum majori ad minus negative non valet; valet Š
converso. An argument from the greater to the less is of no force
negatively; conversely it is. Jenk. Cent. 281.
Argumentum divisione est fortissimum in jure. An argument
arising from a division is most powerful in law. 6 Co. 60.
Argumentum ab inconvenienti est validum in lege; quia lex non
permittit aliquod inconveniens. An argument drawn from what is
inconvenient is good in law, because the law will not permit any
inconvenience. Co. Litt. 258.
Argumentum ab impossibili plurmum valet in lege. An argument
deduced from authority great avails in law. Co. Litt. 92.
Argumentum ab authoritate est fortissimum in lege. An argument
drawn from authority is the strongest in law. Co. Litt. 254.
Argumentum simili valet in lege. An argument drawn from a
similar case, or analogy, avails in law. Co. Litt. 191.
Augupia verforum sunt judice indigna. A twisting of language is
unworthy of a judge. Hob. 343.
Bona fides non patitur, ut bis idem exigatur. Natural equity or
good faith do no allow us to demand twice the payment of the same
thing. Dig. 50, 17, 57.
Boni judicis est ampliare jurisdictionem. It is the part of a
good judge to enlarge his jurisdiction; that, his remedial
authority. Chan. Prec. 329; 1 Wils 284; 9 M. & Wels. 818.
Boni judicis est causas litium derimere. It is the duty of a
good judge to remove the cause of litigation. 2 Co. Inst. 304.
Bonum defendentis ex integr caus , malum ex quolibet defectu.
The good of a defendant arises from a perfect case, his harm from
some defect. 11 Co. 68.
Bonum judex secundum aequum et bonum judicat, et aequitatem
stricto juri praefert. A good judge decides according to justice
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and right, and prefers equity to strict law. Co. Litt. 24.
Bonum necessarium extra terminos necessitatis non est bonum.
Necessary good is not good beyond the bounds of necessity. Hob.
144.
Casus fortuitus non est sperandus, et nemo tenetur devinare. A
fortuitous event is not to be foreseen, and no person is held
bound to divine it. 4 Co. 66.
Casus omissus et oblivione datus dispositioni communis juris
relinquitur. A case omitted and given to oblivion is left to the
disposal of the common law. 5 Co. 37.
Catalla justŠ possessa amitti non possunt. Chattels justly
possessed cannot be lost. Jenk. Cent. 28.
Catalla repuntantur inter minima in lege. Chattels are
considered in law among the minor things. Jenk Cent. 52.
Causa proxima, non remota spectatur. The immediate, and not the
remote cause, is to be considered. Bac. Max. Reg. 1.
Caveat emptor. Let the purchaser beware.
Cavendum est … fragmentis. Beware of fragments. Bacon, Aph. 26.
Cessante causa, cessat effectus. The cause ceasing, the effect
must cease.
C'est le crime qui fait la honte, et non pas l'echafaud. It is
the crime which causes the hsame, and not the scaffold.
Charta de non ente non valet. A charter or deed of a thing not
in being, is not valid. Co. Litt. 36.
Chirographum apud debitorem repertum praesumitur solutum. A
deed or bond found with the debtor is presumed to be paid.
Circuitus est evitandus. Circuity is to be avoided. 5 Co. 31.
Clausula inconsuetae semper indicunt suspicionem. Unusual
clauses always induce a suspicion. 3 Co. 81.
Clausula quae abrogationem excludit ab initio non valet. A
clause in a law which precludes its abrogation, is invalid from
the beginning. Bacon's Max. Reg. 19, p. 89.
Clausula vel dispositio inutilis per praesumptionem remotam vel
causam, ex post facto non fulcitur. A useless clause or
disposition is not supported by a remote presumption, or by a
cause arising afterwards. Bacon's Max. Reg. 21.
Cogitationis poenam nemo patitur. No one is punished for merely
thinking of a crime.
Commodum ex injuriƒ suƒ non habere debet. No man ought to
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derive any benefit of his own wrong. Jenk. Cent. 161.
Communis error facit jus. A common error makes law. What was af
first ellegal, being repeated many times, is presumed to have
acquired the force of usage, and then it would be wrong to depart
from it. The converse of this maxim is communis error no facit
just. A common error does not make law.
Confessio facta in judicio omni probatione major est. A
confession made in court is of greater effect than any proof.
Jenk. Cent. 102; 11 Co. 30.
Confirmare nemo potest priusquam just ei acciderit. No one can
confirm beforethe right accrues to him. 10 Co. 48.
Confirmatio est nulla, ubi donum praecedens est invalidum. A
confirmation is null where the preceding gift is invalid. Co.
Litt. 295.
Conjunctio mariti et faeminae est de jure naturae. The union of
a man and a woman is of the law of nature.
Consensus non concubitus facit nuptiam. Consent, not lying
together, constitutes marriage.
Consensus facit legem. Consent makes the law. A contract is a
law between the parties, which can acquire force only by consent.
Consensus tollit errorem. Consent removes or obviates a
mistake. Co. Litt. 126.
Consentientes et agentes pari poenƒ plectentur. Those
consenting and those perpetrating are embraced in the same
punishment. 5 Co. 80.
Consequentiae non est consequentia. A consequence ought not to
be drawn from another consequence. Bacon, De Aug. Sci. Aph. 16.
Consilii, non fraudulenti, nulla est obligatio. Advice, unless
fraudulent, does not create an obligation.
Constructio contra rationem introducta, potius usurpatio quam
consuetudo appellari debet. A custom introduced against reason
ought rather to be called an usurpation than a custom. Co. Litt.
113.
Construction legis non facit injuriam. The construction of law
works not an injury. Co. Litt. 183; Broom's Max. 259.
Consuetudo debet esse certa. A custom ought to be certain. Dav.
33.
Consuetudo est optimus interpres legum. Custome is the best
expounder of the law. 2 Co. Inst. 18; Dig. 1, 3, 37; Jenk.
Cent. 273.
Consuetudo est altera lex. Custom is another law. 4 Co. 21.
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Consuetudo loci observanda est. The custom of the place is to
be observed. 6 Co. 67.
Consuetudo praescripta et legitima vincit legem. A prescriptive
and legitimate custom overcomes the law. Co. Litt. 113.
Consuetudo semel reprobata non potest amplius induci. Custom
once disallowed cannot again be produced. Dav. 33.
Consuetudo voluntis ducit, lex nolentes trahit. Custom leads
the willing, law, law compels or draws the unwilling. Jenk. Cent.
274.
Contestio litis eget terminos contradictaris. An issue requires
terms of contradiction; that is, there can be no issue without
an affirmative on one side and a negative on the other.
Contemporanea expositio est optima et fortissima in lege. A
contemporaneous exposition is the best and most powerful in the
law. 2 Co. Inst. 11.
Contr… negantem principia non est disputandum. There is no
disputing against or denying principles. Co. Litt. 43.
Contr… non volentem agere nulla currit praescriptio. No
prescription runs against a person unable to act. Broom's Max.
398.
Contr… veritatem lex numquam aliquid permittit. The law never
suffers anything contrary to truth. 2 Co. Inst. 252. But
sometimes it allows a conclusive presumption in opposition to
truth. See 3 Bouv. Inst. n. 3061.
Contractus legem ex conventione accipiunt. The agreement of the
parties makes the law of hte contract. Dig. 16, 3, 1, 6.
Contractus ex turpi causƒ, vel contr… bonos mores nullus est. A
contract founded on a base and unlawful consideration, or against
good morals, is null. Hob. 167; Dig. 2, 14, 27, 4.
Conventio vincit legem. The agreement of the parties overcomes
or prevails against the law. Story, Ag. § See Dig. 16, 3, 1, 6.
Copulatio verborum indicat acceptionem in eodem sensu. Coupling
words together shows that they ought to be understood in the same
sense. Bacom's Max. in Reg. 3.
Corporalis injuria non recipit aestimationem de futuro. A
personal injury does no receive satisfaction from a future course
of proceding. Bacon's Max. in Reg. 6.
Cuilibet in arte sua herito credendum est. Every one should be
believed skilful in how own art. Co. Litt. 125. Vide Experts;
Opinion.
Cujus est commodum ejus debet esse incommodum. He who receives
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the benefit should also bear the disadvantage.
Cujus est dare ejus est disponere. He who has a right to give,
has the right to dispose of the gift.
Cujus per errorem dati repetitio est, ejus consult• dati
donatio est. Whoever pays by mistake what he does not owe, may
recover it back; but he who pays, knowing he owes nothing; is
presumed to give.
Cujus est solum, ejus est usque ad caelum. He who owns the
soil, owns up to the sky. Co. Litt. 4 a; Broom's Max. 172;
Shep. To. 90; 2 Bouv. Inst. n. 15, 70.
Cujus est divisio alterius est electio. Which ever of two
parties has the division, the other has the choice. Co. Litt.
166.
Cujusque rei potissima pars principium est. The principal part
of everything is the beginning. Dig. 1, 2, 1; 10 Co. 49.
Culpa tenet suos auctores. A fault finds its own.
Culpa est immiscere se rei ad se non pertinenti. It is a fault
to meddle with what does not belong to or does not concern you.
Dig. 50, 17, 36.
Culpa paena par esto. Let the punishment be proportioned to the
crime.
Culpa lata aequiparatur dolo. A concealed fault is equal to a
deceit.
Cui pater est populus non habet ille patrem. He to whom the
people is father, has not a father. Co. Litt. 123.
Cum confitente sponte mitius est agendum. One making a
voluntary confession, is to be dealt with more mercifully. 4 Co.
Inst. 66.
Cum duo inter se pugnantia reperiuntur in testamento ultimum
ratum est. When two things repugnant to each other are found in a
will, the last is to be confirmed. Co. Litt. 112.
Cum legitimae nuptiae factae sunt, patrem liberi sequuntur.
Children born under a legitimate marriage follow the condition of
the father.
Cum adsunt testimonia rerum quid opus est verbis. When the
proofs of facts are present, what need is there of words. 2 Buls.
53.
Curiosa et captiosa intepretatio in lege reprobatur. A curious
and captious interpretation in the law is to be reproved. 1 Buls.
6.
Currit tempus contra desides et sui juris contemptores. Time
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runs against the slothful and those who neglect their rights.
Cursus curiae est lex curiae. The practice of the court is the
law of the court. 3 Buls. 53.
De fide et officio judicis non recipitur quaestio; sed de
scientia, sive error sit juris sive facti. Of the credit and duty
of a judge, no question can arise; but it is otherwise
respecting his knowledge, whether he be mistaken as to the law or
fact. Bacon's max. Reg. 17.
De jure judices, de facto juratores, respondent. The judges
answer to the law, the jury to the facts.
De minimis non curat lex. The law does not notice or care for
trifling matters. Broom's Max. 333; Hob. 88; 5 Hill, N.Y. Rep.
170.
De morte hominis nulla est cunctatio longa. When the death of a
human being may be the consequence, no delay is long. Col Litt.
134. When the question is on the life or death of a man, no delay
is too long to admit of inquiring into facts.
De non apparentibus et non existntibus eadem est ratio. The
reason is the same respecting things which do not appear, and
those which do not exist.
De similibus ad similia eadem ratione procedendum est. From
similars to similars, we are to proceed by the same rule.
De similibus idem est judicium. Concerning similars the
judgment is the same. 7 Co. 18.
Debet esse finis litium. There ought to be an end of law suits.
Jenk. Cent. 61.
Debet qui juri subjacere ubi delinquit. Every one ought to be
subject to the law of the place where he offends. 3 Co. Inst. 34.
Debile fundamentum, fallit opus. Where there is a weak
foundation, the work falls. 2 Bouv. Inst. n. 2068.
Debita sequuntur personam debitoris. Debts follow the person of
the. debtor. Story, Confl. of Laws, §362.
Debitor non praesumitur donare. A debtor is not presumed to
make a gift. See 1 Kames' Eq. 212; Dig. 50, 16, 108.
Debitum et contractus non sunt nullius loci. Debt and contract
are of no particular place.
Delegata potestas non potest delegari. A delegated authority
cannot be again delegated. 2 Co. Inst. 597; 5 Bing. N. C. 310;
2 Bouv. Inst. n. 1300.
Delegatus non potest delegare. A delegate or deputy cannot
appoint another. 2 Bouv. Inst. n. 1936; Story, Ag. §33.
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Derativa potestas non potest esse major primitiva. The power
which is derived cannot be greater than that from which it is
derived.
Derogatur legi, cum pars detrahitur; abrogatur legi, cum
prorsus tollitur. To derogate from a law is to enact something
contrary to it; to abrogate a law, is to abolish it entirely.
Dig. 50, 16, 102. See 1 Bouv. Inst. n. 91.
Designatio unius est exclusio alterius, et expressum facit
cessare tacitum. The appointment or designation of one is the
exclusion of another; and that expressed makes that which is
implied cease. Co. Litt. 210.
Dies dominicus non est juridicus. Sunday is not a day in law.
Co. Litt. 135 a; 21 Saund. 291. See Sunday.
Dies inceptus pro completo habetur. The day of undertaking or
commencement of the business is held as complete.
Dies incertus pro conditione habetur. A day uncertain is held
as a condition.
Dilationes in lege sunt odiosae. Delays in law are odious.
Disparata non debent jungi. Unequal things ought not to be
joined. Jenk. Cent. 24. ,
Dispensatio est vulnus, quod vulnerat jus commune. A
dispensation is a wound which wounds a common right. Dav. 69.
Dissimilum dissimiles est ratio. Of disimilars the rule is
dissimilar. Co. Litt. 191.
Divinatio non interpretatio est, quae omnino recedit a litera.
It is a guess not interpretation which altogether departs from
the letter. Bacon's Max. in Reg. 3, p. 47.
Dolosus versatur generalibus. A deceiver deals in generals. 2
Co. 34.
Dolus auctoris non nocet successori. The fraud of a possessor
does not prejudice the successor.
Dolus circuitu non purgator. Fraud is not purged by circity.
Bacon's Max. in Reg. 1.
Domus sua cuique est tutissimum refugium. Every man's house is
his castle. 5 Rep. 92.
Domus tutissimum cuique refugium atque receptaculum. The
habitation of each one is an inviolable asylum for him. Dig. 2,
4, 18.
Donatio perficitur possesione accipientis. A gift is rendered
complete by the possession of the receiver. See 1 Bouv. Innt. n.
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712; 2 John. 52; 2 Leigh, 337.
Donatio non praesumitur. A gift is not presumed.
Donatur nunquam desinit possidere antequam donatarius incipiat
possidere. He that gives never ceases to possess until he that
receives begins to possess. Dyer, 281.
Dormiunt aliquando leges, nunquam moriuntur. The laws sometimes
sleep, but neyer die. 2 Co. Inst. 161.
Dos de dote peti non debet, Dower ought not to be sought from
dower. 4 Co. 122.
Duas uxores eodem tempore habere non potest. It is not lawful
to have two wives at one time. Inst. 1, 10, 6.
Duo non possunt in solido unam rem possidere. Two cannot
possess one thing each in entirety. Co. Litt. 368.
Duplicationem possibilitatis lex non patitur. It is not allowed
to double a possibility. 1 Roll. R. 321.
Ea est accipienda interpretation, qui vitio curet. That
interpretation is to be received, which will not intend a wrong.
Bacon's Max. Reg. 3, p. 47.
Ei incumbit probatio qui dicit, non qui negat. The burden of
the proof lies upon him who affirms, not he who denies. Dig. 22,
3, 2; Tait on Ev. 1; 1 Phil. Ev. 194; 1 Greenl. Ev. §74; 3
Louis. R. 83; 2 Dan. Pr. 408; 4 Bouv Inst. n. 4411.
Ei nihil turpe, cui nihil satis. To whom nothing is base,
nothing is sufficient. 4 Co. Inst. 53.
Ejus est non nolle, qui potest velle. He who may consent
tacitly, may consent expressly. Dig. 50, 17, 8.
Ejus est periculum cujus est dominium aut commodum. He who has
the risk has the dominion or advantage.
Elect… unƒ viƒ, non datur recursus ad alteram. When there is
concurrence of means, he who has chosen one cannot have recourse
to another. 10 Toull. n. 170.
Electio semel facta, et placitum testatum, non patitur
regressum. Election once made, and plea witnessed, suffers not a
recall. Co. Litt. 146.
Electiones fiant rite et libere sine interruptione aliqua.
Elections should be made in due form andfreely, without any
interruption. 2 Co. Inst. 169.
Enumeratio infirmat regulam in casibus non enumeratis.
Enumeration affirms the rule in cases not enumerated. Bac. Aph.
17.
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Equality is equity. Francis' Max., Max. 3; 4 Bouv. Inst. n.3725.
Equity suffers not a right without a remedy. 4 Bouv. Inst. n.
3726.
Equity looks upon that as done, which ought to be done. 4 Bouv.
Inst. n. 3729; 1 Fonbl. Eq. b. 1, ch. 6, s. 9, note; 3 Wheat.
563.
Error fucatus nudƒ veritate in multis est probabilior; et
saepenumero rationibus vincit veritatem error. Error artfully
colored is in many things more probable than naked truth; and
frequently error conquers truth and reasoning. 2 Co. 73.
Error juris nocet. Error of law is injurious. See 4 Bouv. Inst.
n. 3828.
Error qui non resistitur, approbatur. An error not resisted is
approved. Doct. & Stud. c. 70.
Error scribentis nocere non debet. An error made by a clerk
ought not to injure; a clerical error may be corrected.
Errores ad sua principia referre, est refellere. To refer
errors to their origin is to refute them. 3 Co. Inst. 15.
Est autem vis legem simulans. Violence may also put on the mask
of law.
Est boni judicis ampliare jurisdictionem. It is the part of a
good judge to extend the jurisdiction.
Ex antecedentibus et consequentibus fit optima interpretatio.
The best interpration is made from antecedents and consequents. 2
Co. Inst. 317.
Ex diuturnitate temporis, amnia praesumuntur solemniter esse
acta. From length of time, all things are presumed to have been
done in due form. Co. Litt. 6; 1 Greenl. Ev. §20.
Ex dolo malo non oritur action. Out of fraud no action arises.
Cowper, 343; Broom's Max. 349.
Ex facto jus oritur. Law arises out of fact; that is, its
application must be to facts.
Ex malificio non oritur contractus. A contract cannot arise out
of an act radically wrong and illegal. Broom's Max. 851.
Ex multitudine signorum, colligitur identitas vera. From the
great number of signs true identity may be ascertained. Bacon's
Max. in Reg. 25.
Ex nudo pacto non oritur action. No actions arises on a naked
contract without a consideration. See Nudum Pactum.
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Ex tota materia emergat resolutio. The construction or
resolution should arise out of the whole subject matter.
Ex turpi causa non oritur action. No action arises out of an
immoral consideration.
Ex turpi contractu non oritur actio. No action arises on an
immoral contract.
Ex uno disces omnes. From one thing you can discern all.
Excusat aut extenuat delictum in capitalibus, quod non operatur
idem in civilibus. A wrong in capital cases is excused or
palliated which would not be so in civil matters. Bacon's Max.
Reg. 7.
Exceptio ejus rei cujus petitiur dissolutio nulla est. There
can be no plea of that thing of which the dissolution is sought.
Jenk. Cent. 37.
Exceptio falsi omnium ultima. A false plea is the basest of all
things.
Exceptio firmat regulam in contrarium. The exception affirms
the rule in contrary cases. Bac. Aph. 17.
Exceptio firmat regulam in casibus non exceptis. The exception
affirms the rule in cases not excepted. Bac. Aph. 17.
Exceptio nulla est versus actionem quae exceptionem perimit.
There can be no plea against an action which entirely destroys
the plea. Jenk. Cent. 106.
Exceptio probat regulam de rebus non exceptio. An exception
proves the rule concerning things not excepted. 11 Co. 41.
Exceptio quoque regulam declarat. The exception also declares
the rule. Bac. Aph. 17.
Exceptio semper ultima ponenda est. An exception is always to
be put last. 9 Co. 53.
Executio est finis et fructus legis. An execution is the end
and the first fruit ofthe law. Co. Litt. 259.
Executio juris non habet injuriam. The execution of the law
causes no injury. 2 Co. Inst. 482; Broom's Max. 57.
Exempla illustrant non restringunt legem. Examples illustrate
and do not restrict the law. Co. Litt. 24.
Expedit reipublicae ut sit finis litium. It is for the public
good that there be an end of litigation. Co. Litt. 303.
Expressa nocent, non expressa non nocent. Things expressed may
be prejudicial; things not expressed are not. See Dig. 50, 17,
195.
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Expressio eorum quae tacite insunt nihil operatur. The
expression of those things which are tacitly implied operates
nothing.
Expressio unius est exclusio alterius. The expression of one
thing is the exclusion of another.
Expressum facit cessare tacitum. What is expressed renders what
is implied silent.
Extra legem positus est civiliter mortuus. One out of the pale
of the law, (an outlaw,) is civilly dead.
Extra territorium jus dicenti non paretur impune. One who
exercises jurisdiction out of his territory is not obeyed with
impunity.
Facta sunt potentiora verbis. Facts are more powerful than
words.
Factum … judice quod ad ujus officium non spectat, non ratum
est. An act of a judge which does not relate to his office, is of
no force. 10 Co. 76.
Factum negantis nulla probatio. Negative facts are not proof.
Factum non dictur quod non perseverat. It cannot be called a
deed which does not hold out or persevere. 5 Co. 96.
Factum unius alteri nocere non debet. The deed of one should
not hurt the other. Co. Litt. 152.
Facultas probationum non est angustanda. The faculty or right
of offering proof is not to be narrowed. 4 Co. Inst. 279.
Falsa demonstratio non nocet. A false or mistaken description
does not vitiate. 6T. R. 676; see 2 Story's Rep. 291; 1 Greenl.
Ev. § 301.
Falsa ortho graphia, sive falsa grammatica, non vitiat
concessionem. False spelling or false grammar do not vitiate a
grant. 9 Co. 48; Sheph. To. 55.
Falsus in uno, falsus in omnibus. False in one thing, false in
everything. 1 Sumn. 356.
Fiat justitia ruat caelum. Let justice be done, though the
heavens hsould fall.
Felonia implicatur in quolibet proditione. Felony is included
orimplied in every treason. 3 Co. Inst. 15.
Festinatio justitiae est noverca infortunii. The hurrying of
justice is the stepmother of misfortune. Hob. 97.
Fiat prout, fieri consuerit, nil temere novandum. Let it be
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done as formerly, let nothing be done rashly. Jenk. Cent. 116.
Fictio est contra veritatem, sed pro veritate habetur. Fiction
is aginst the truth, but it is to have truth.
Finis rei attendendus est. The end of a thing is to be attended
to. 3 Co. Inst. 51.
Finis finem litibus imponit. The end puts an end to litigation.
3 Inst. 78.
Finis unius diei est principium alterius. The end of one day is
the beginning of another. 2 Buls. 305.
Firmior et potentior est operatio legis quam dispositio
hominis. The disposition of law is firmer and more powerful than
the will of man. Co. Litt. 102.
Flumina et protus publica sunt, ideoque jus piscandi omnibus
commune est. Rivers and ports are public, therefore the right of
fishing there is common to all.
Faemina ab omnibus officiis civilibus vel publicis remotae
sunt. Women are excluded from all civil and public charges or
offices. Dig. 50, 17, 2.
Forma legalis forma essentialis. Legal form is essential form.
10 Co. 100.
Forma non observata, inferiur adnullatio actus. When form is
not observed a nullity of the act is inferred. 12 Co. 7.
Forstellarius est pauperum depressor, et totius communitatis et
patriae publicus inimicus. A forestaller is an oppressor of the
poor, and a public enemy to the whole community and the country.
3 Co. Inst. 196.
Fortior est custodia legis quam hominis. The custody of the law
is stronger than that of man. 2 Roll. R. 325.
Fortior et potentior est dispositio legis quam hominis. The
disposition of the law is stronger and more powerful than that of
man. Co Litt. 234.
Fraus est celare fraudem. It is a fraud to conceal a fraud. 1
Vern. 270.
Fraus est odiosa et non praesumenda. Fraud is odious and not to
be presumed. Cro. Car. 550.
Fraus et dolus nemini patrocianari debent. Fraud and deceit
should excuse no man. 3 Co. 78.
Fraus et jus numquam cohabitant. Fraud and justice never agree
together. Wing. 680.
Fraus latet in generalibus. Fraud lies hid in general
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expressions.
Fraus meretur fraudem. Fraud deserves fraud. Plow. 100. This is
very doubtful morality.
Fructus pendentes pars fundi videntur. Hanging fruits make part
of the land. Dig. 6, 1, 44; 2 Bouv. Inst. n. 1578. See Larceny.
Fructus perceptos villae non esse constat. Gathered fruits do
not make a part of the house. Dig. 19, 1, 17, 1; 2 Bouv. Inst.
n. 1578.
Frustr… est potentia quae numcquam venit in actum. The power
which never comes to be exercised is vain. 2 Co. 51.
Frustr… feruntur legis nisi subditis et obedientibus. Laws are
made to no purpose unless for those who are subject and obedient.
7 Co. 13.
Frustr… legis auxilium quaerit qui in legem committit. Vainly
does he who offends against the law, seek the help of the law.
Frustr… petis quoa statim alteri reddere cogeris. Vainly you
ask that which you will immediately be compelled to restore to
another. Jenk. Cent. 256.
Frustr… probatur quod probatum non relevat. It is vain to prove
that which if proved would not aid the matter in question.
Furiosus absentis loco est. The insane is compared to the
absent. Dig. 50, 17, 24, 1.
Furiosus solo furore punitur. A madman is punished by his
madness alone. Co. Litt. 247.
Furtum non est ubi initium habet detentionis per dominum rei.
It is not theft where the commencement of the detention arises
through the owner of the thing. 3 Co. Inst. 107.
Generale tantum valet in generalibus, quanium singulare
singulis. What is general prevails or is worth as much among
things general, as what is particular among things particular. 11
Co. 59.
Generale dictum generaliter est interpretandum. A general
expression is to be construed generally. 8 co. 116.
Generale nihil certum implicat. A general expression implies
nothing certain. 2 Co. 34.
Generalia sunt praeponenda singularibus. General things are to
be put before particular things.
Generalia verba sunt generaliter intelligenda. General words
are understood in a general sense. 3 Co. Inst. 76.
Generalis clausula non porrigitur ad ea quae antea specialiter
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sunt comprehensa. A general clause does not extend to those
things which are previously provided for specially. 8 Co. 154.
Haeredem Deus facit, non homo. God and not man, make the heir.
Haeredem est nomen collectivum. Heir is a collective name.
Haeris est nomen juris, filius est nomen naturae. Heir is a
term of law, son one of nature.
Haeres est aut jure proprietatis aut jure representationis. An
heir is either by right of property or right of representation. 3
Co. 40.
Haeres est alter ispe, et filius est pars patris. An heir is
another self, and a son is a part of the father.
Haeres est eadem persona cum antecessore. The heir is the same
person with the ancestor. Co. Litt. 22.
Haeres haeredis mei est meus haeres. The heir of my heir is my
heir.
Haeres legitimus est quem nuptiae demonstrant. He is the lawful
heir whom the marriage demonstrates.
He who has committed iniquity, shall not have equity. Francis'
Max., Max. 2.
He who will have equity done to him, must do equity to the same
person. 4 Bouv. Inst. n. 3723.
Hominum caus… jus constitutum est. Law is established for the
benefit of man.
Id quod nostrum est, sine facto nostro ad alium transferi non
potest. What belongs to us cannot be transferred to another
without our consent. Dig. 50, 17, 11. But this must be understood
with this qualification, that the government may take property
for public use, paying the owner its value. The title to property
may also be acquired, with the consent of the owner, by a
judgment of a competent tribunal.
Id certum est quod certum reddi potest. That is certain which
may be rendered certain. 1 Bouv. Inst. n. 929; 2 Bl. Com. 143;
4 Kernt com. 462; 4 Pick 179.
Idem agens et patiens esse non potest. One cannot be agent and
patient, in the same matter. Jenk. Cent. 40.
Idem est facere, et nolle prohibere cum possis. It is the same
thing to do a thing as not to prohibit it when in your power. 3
Co. Inst. 178.
Idem est non probari et non esse; non deficit jus, sed
probatio. What does not appear and what is not is the same; it
is not the defect of the law, but the want of proof.
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Idem est nihil dicere et insufficienter dicere. It is the same
thing to say nothing and not to say it sufficiently. 2 Co. Inst.
178.
Idem est scire aut scire debet aut potuisse. To be able to know
is the same as to know. This maxim is applied to the duty of
every one to know the law.
Idem non esse et non apparet. It is the same thing not to exist
and not to appear. Jenk. Cent. 207.
Idem semper antecedenti proximo refertur. The same is always
referred to its next antecedent. Co. Litt. 385.
Identitas vera colligitur ex multitudine signorum. True
identity is collected from a number of signs.
Id perfectum est quod ex omnibus suis partibus constat. That is
perfect which is complete in all its parts. 9 Co. 9.
Id possumus quod de jure possumus. We may do what is allowed by
law. Lane, 116.
Ignorantia excusatur, non juris sed facti. Ignorance of fact
may excuse, but not ignorance of law. See Ignorance.
Ignorantia legis neminem excusat. Ignorance of fact may excuse,
but not ignorance of law. 4 Bouv. Inst. n. 3828.
Ignorantia facti excusat, ignorantia juris non excusat.
Ignorance of facts excuses, ignorance of law does not excuse. 1
Co. 177; 4 Bouv. Inst. n 3828. See Ignorance.
Ignorantia judicis est calamitas innocentis. The ignorance of
the judge is the misforture of the innocent. 2 Co. Inst. 591.
Ignorantia terminis ignoratur et ars. An ignorance of terms is
to be ignorant of the art. Co. Litt. 2.
Illud quod alias licitum non est necessitas facit licitum, et
necessitas inducit privilegium quod jure privatur. That which is
not otherwise permitted, necessity allows, and necessity makes a
privilege which supersedes the law. 10 Co. 61.
Imperitia culpae annumeratur. Ignorance, or want of skill, is
considered a negligence, for which one who professes skill is
responsible. Dig. 50, 17, 132; 1 Bouv. Inst. n. 1004.
Impersonalitas non concludit nec ligat. Impersonality neither
concludes nor binds. Co. Litt. 352.
Impotentia excusat legem. Impossibility excuses the law. Co.
Litt. 29.
Impunitas continuum affectum tribuit delinquenti. Impunity
offers a continual bait to a delinquent. 4 Co. 45.
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In alternativis electio est debitoris. In alternatives there is
an election of the debtor.
In aedificiis lapis male positus non est removendus. A stone
badly placed in a building is not to be removed. 11 Co. 69.
In aequali jure melior est conditio possidentis. When the
parties have equal rights, the condition of the possessor is the
better. Mitf. Eq. Pl. 215; Jer. Eq. Jur. 285; 1 Madd. Ch. Pr.
170; Dig. 50, 17, 128. Plowd. 296.
In commodo haec pactio, ne dolus praestetur, rata non est. If
in a contract for a loan there is inserted a clause that the
borrower shall not be answerable for fraud, such clause is void.
Dig. 13, 6, 17.
In conjunctivis oportet utramque partem esse veram. In
conjunctives each part ought to be true. Wing. 13.
In consimili casu consilile debet esse remedium. In similar
cases the remedy should be similar. Hard. 65.
In contractibus, benigna; in testamentis, benignior; in
restitutionibus, benignissima interpretatio facienda est. In
contracts, the interpretation or construction should be liberal;
in wills, more liberal; in restitutions, more liberal. Co. Litt.
112.
In conventibus contrahensium voluntatem potius quam verba
spectari placuit. In the agreements of the contracting parties,
the rule is to regard the intention rather than the words. Dig.
50, 16, 219.
In criminalibus, probationes bedent esse luce clariores. In
criminal cases, the proofs ought to be clearer than the light. 3
Co. inst. 210.
In criminalibus sufficit generalis malitia intentionis cum
facto paris gradus. In criminal cases a general intention is
sufficient, when there is an act of equal or corresponding
degree. Bacon's Max. Reg. 15.
In disjunctivis sufficit alteram partem esse veram. In
disjunctives, it is sufficient if either part be true. Wing. 15.
In dubiis magis dignum est accipiendum. In doubtful cases the
more worthy is to be taken. Branch's Prin. h.t.
In dubiis non praesumitur pro testamento. In doubtful cases
there is no presumption in favor of the will. Cro. Car. 51.
In dubio haec legis constructio quam verba ostendunt. In a
doubtful case, that is the construction of the law which the
words indicate. Br. Pr. h. t.
In dubio pars melior est sequenda. In doubt, the gentler course
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is to be followed.
In dubio, sequendum quod tutius est. In doubt, the safer course
is to be adopted.
In eo quod plus sit, semper inest et minus. The less is
included in the greater. 50, 17, 110.
In facto quod se habet ad bonum et malum magis de bono quam de
malo lex intendit. In a deed which may be considered good or bad,
the law looks more to the good than to the bad. Co. Litt. 78.
In favorabilibus magis attenditur quod prodest quam quod nocet.
In things favored what does good is more regarded than what does
harm. Bac. Max. in Reg. 12.
In fictione juris, semper subsistit aequitas. In a fiction of
law, equity always subsists. 11 Co. 51.
In judiciis minori aetati sucuritur. In judicial proceedings,
infancy is aided or favored.
In judicio non creditur nisi juratis. In law none is credited
unless he is sworn. All the facts must when established, by
witnesses, be under oath or affirmation. Cro. Car. 64.
In jure non remota causa, sed proxima spectatur. In law the
proximate, and not the remote cause, is to be looked to. Bacon's
Max. REg. 1.
In majore summƒ continetur minor. In the greater sum is
contained the less. 5 Co. 115.
In maleficio ratihabitio mandato comparatur. He who ratifies a
bad action is considered as having ordered it. Dig. 50, 17, 152,
2.
In mercibus illicitis non sit commercium. NO commerce should be
in illicit goods. 3 Kent, Com. 262, n.
In maximƒ potentiƒ minima licentia. IN the greater power is
included the smaller license. Hob. 159.
In obscuris, quod minimum est, sequitur. In obscure cases, the
milder course ought to be pursued. Dig. 50, 17, 9.
In odium spoliatoris omnia praesumuntur. All things are presumed
in odium of a despoiler. 1 Vern. 19.
In omni re nascitur res qua ipsam rem exterminat. In
everything, the thing is born which destroys the thing itself. 2
Co. Inst. 15.
In omnibus contractibus, sive nominatis sive innominatis,
permutatio continetur. In every contract, whether nominate or
innominate, there is implied a consideration.
In omnibus quidem, maximŠ tamen in jure, aequitas spectanda
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sit. In all affairs, and principally in those which concern the
administration of justice, the rules of equity ought to be
followed. Dig. 50, 17, 90.
In omnibus obligationibus, in quibus dies non ponitar,
praesenti die debutur. In all obligations when no time is fixed
for the payment, the thing is due immediately. Dig. 50, 17, 14.
In praesentia majoris potestatis, minor potestas cessat. In the
presence of the superior power, the minor power ceases. Jenk.
Cent. 214.
In pari causa possessor potior haberi debet. When two parties
have equal rights, the advantage is always in favor of the
possessor. Dig. 50, 17, 128.
In pari causa possessor potior est. In an equal case, better is
the condition of the possessor. Dig. 50, 17, 128; Poth. Vente,
n. 320; 1 Bouv. Inst. n. 952.
In pari delicto melior est conditio possidentis. When the
parties are equally in the wrong, the condition of the possessor
is better. 11 Wheat. 258; 3 Cranch 244; Cowp. 341; Broom's
Max. 325; 4 Bouv. Inst. n. 3724.
In propriƒ cuusƒ nemo judex. No one can be judge in his own
cuase.
In quo quis delinquit, in eo de jure est puniendus. In whatever
thing on offends, in that he is rightfully to be punished. Co.
Litt. 233.
In repropriƒ iniquum admodum est alicui licentiam tribuere
sententiae. It is expremely unjust that any one should be judge
in his own cause.
In re dubiƒ magis inficiato quam affirmatio intelligenda. In a
doubtful matter, the negative is to be understood rather than the
affirmative. Godb. 37.
In republicƒ maximŠ conservanda sunt jura belli. In the state
the laws of ware are to be greatly preserved. 2 Co. Inst. 58.
In restitutionem, non in paenam haeres succedit. The heir
succeeds to the restitution not the penalty. 2 Co. Inst. 198.
In restitutionibus benignissima interpretatio facienda est. The
most favorable construction is made in restitutions. Co. Litt.
112.
In suo quisque negotio hebetior est quam in alieno. Every one
is more dull in his own business than in that of another. Co.
Litt. 377.
In toto et pars continetur. A part is included in the whole.
Dig. 50, 17, 113.
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In traditionibus scriptorum non quod dictum est, sed quod
gestum est, inscpicitur. In the delivery of writing, not what is
said, but what is done is to be considered. 9 co. 137.
Incerta pro nullius habentur. Things uncertain are held for
nothing Dav. 33.
Incerta quantitas vitiat acium. An uncertain quantity vitiates
the act. 1 Roll. R. 465.
In civile est nisi tota sententia inspectu, de aliqua parte
judicare. It is improper to pass an opinion on any part of a
sentence, without examining the whole. Hob. 171.
Inclusio unius est exclusio alterius. The inclusion of onoe is
the exclusion of another. 11 Co. 58.
Incommodum non solvit argumentum. An inconvenience does not
solve an argument.
Indefinitum aequipolet universali. The undefined is equivalent
tothe whole. 1 Ventr. 368.
Indefinitum supplet locum universalis. The undefined supplies
the place of the whole Br. Pr. h. t.
Independenter se habet assecuratio a viaggio vanis. The voyage
insured is an independent or distinct thing from the voyage of
the ship. 3 Kent, Com. 318, n.
Index animi sermo. Speech is the index of the mind.
Inesse potest donationi, modus, conditio sive causa; ut modus
est; si conditio; quia causa. In a gift there may be manner,
condition and cause; as, (ut), introduces a manner; if, (si), a
condition; because, (quia), a cause. Dy. 138.
Infinitum in jure reprobatur. That which is infinite or endless
is reprehensible in law. 9 Co. 45.
Iniquum est alios permittere, alios inhibere mercaturam. It is
inequitable to permit some to trade, and to prohibit others. 3
Co. Inst. 181.
Iniquum est aliquem rei sui esse judicem. It is against equity
for any one to be judge in his own cause. 12 Co. 13.
Iniquum est ingenuis hominibus non esse liberam rerum suarum
alienationem. It is against equity to deprive freeman of the free
disposal of their own property. Co. Litt. 223. See 1 Bouv. Inst.
n. 455, 460.
Injuria non praesumitur. A wrong is not presumed. Co. Litt.
232.
Injuria propria non cadet in beneficium facientis. One's own
wrong shall not benefit the person doing it.
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Injuria fit ei cui convicium dictum est, vel de eo factum
carmen famosum. It is a slander of him who a reproachful thing is
said, or concerning whom an infamous song is made. 9 Co. 60.
Intentio caeca, mala. A hidden intention is bad. 2 Buls. 179.
Intentio inservire debet legibus, non leges intentioni.
Intentions ought to be subservient to the laws, not the laws to
intentions. Co. Litt. 314.
Intentio mea imponit nomen operi meo. My intent gives a name to
my act. Hob. 123.
Interest reipublicae ne maleficia remaneant impunita. It
concerns the commonwealth that crimes do not remain unpunished.
Jenk. Cent. 30, 31.
Interest reipublicae res judicatas non rescindi. It concerns
the common wealth that things adjudged be not rescinded. Vide Res
judicata.
Interest reipublicae quod homines conserventur. It concerns the
commonwealth that we be preserved. 12 Co. 62. Interest
reipublicae ut qualibet re suƒ bene utatur. it concerns the
commonwealth that every one use his property properly. 6 Co. 37.
Interest reipublicae ut carceres sint in tuto. It concerns the
commonwealth that prisons be secure. 2 Co. Inst. 589.
Interest reipublicae suprema hominum testamenta rata haberi. It
concerns the commonwealth that men's last wills be sustained. Co.
Litt. 236.
Interest reipublicae ut sit finis litium. In concerns the
commonwealth that there be an end of law suits. Co. Litt. 303.
Interpretare et concordare leges legibus est optimus
interpretandi modus. To interpret and reconcile laws so that they
harmonize is the best mode of construction. 8 Co. 169.
Interpretatio fienda est ut res magis valeat quam pereat. That
construction is to be made so that the subject may have an effect
rather than none. Jenk. Cent. 198.
Interpretatio talis in ambiguis semper fienda, ut evitetur
inconveniens et absurdum. In ambiguous things, such a
construction is to be made, that what is inconvenient and absurd
is to be avoided. 4 Co. Inst. 328.
Interruptio multiplex non tollit praescriptionem semel
obtentam. Repeated interruptions do not defeat a prescription
once obtained. 2 Co. Inst. 654.
Inutilis labor, et sine fructu, non est effectus legis. Useless
labor and without fruit, is not the effect of law. Co. Lit. 127.
Invito beneficium non datur. No one is obligedto accept a
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benefit against his consent. Dig. 50, 17, 69. But if he does not
siddent he will be considered as assenting. Vide Assent.
Ipsae legis cupiunt ut jure regantur. The laws themselves
require that they should be governed by right. Co. Litt. 174.
Judex ante occulos aequitatem semper habere debet. A judge
ought always to have equity before his eyes. Jenk. Cent. 58.
Judex aeuitatem semper spectare debet. A judge ough always to
regard equity. Jenk. Cent. 45.
Judex bonus nihil ex arbitrio suo faciat, nec propositione
domesticae voluntatis, sed juxta legis et jura pronunciet. A good
judge should do nothing from his own judgment, or from the
dictates of his private wishes; but he should pronounce
according to law and justice. 7 co. 27.
Judex debet judicare secundum allegata et probata. The judge
ought to decide according to the allegation and the proof.
Judex est lex loquens. The judge is the speaking law. 7 co. 4.
Judex non potest esse testis in propriƒ causƒ A judge cannot be
awitness in his own cause. 4 Co. Inst. 279.
Judex non potest injuriam sibi datum punire. A judge cannot
punish a wrong done to himself. 12 Co. 113.
Judex damnatur cum nocens absolvitur. The judge is condemned
when the guilty are acquitted.
Judex non reddat plus quam quod petens ipse requireat. The
judge does demand more than the plaintiff demands. 2 Inst. 286.
Judici officium suum excedenti non paretur. To a judge who
exceeds his office or jurisdiction no obedience is due. Jenk.
Cent. 139.
Judici satis paena est quod Deum habet ultorem. It is
punishment enough for a judge that he is responsible to God. 1
Leon. 295.
Judicia in deliberationibus crebro naturescunt, in accelerato
processu nunquam. Judgments frequently become matured by
deliberation, never by hurried process. 3 Co. Inst. 210.
Judicia posteriora sunt in lege fortiora. The latter decisions
are stronger in law. 8 Co. 97.
Judicia sunt tanquam juris dicta, et pro veritate accipiuntur.
Judgments are, as it were, the dicta or sayings of the law, and
are received as truth. 2 Co. Inst. 573.
Judiciis posterioribus fides est adhibenda. Faith or credit is
to be given to the last decisions. 13 Co. 14.
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Judicis est in pronuntiando sequi regulam, exceptione non
probata. The judge in his decision ought to follow the rule, when
the exception is not made apparent.
Judicis est judicare secudnum allegata et probata. A judge
ought to decide according to the allegations and proofs. Dyer.
12.
Judicium … non suo judice datum nullius est momenti. A judgment
given by an improper judge is of no moment. 11 Co. 76.
Judicium non debet esse illusorium, suum effectum habere debet.
A judgment ought not to be illusory, it ought to have its
consequence. 2 Inst. 341.
Judicium redditur in invitum, in praesumptione legis. In
presumption of law, a judgment is given against inclination. Co.
Litt. 248.
Judicium semper pro veritate accipitur. A judgment is always
taken for truth. 2 Co. Inst. 380.
Jura sanguinis nullo jure civili dirimi possunt. The right of
blood and kindred cannot be destroyed by any civil law. Dig. 50,
17, 9; Bacon's Max. Reg. 11.
Jura naturae sunt immutabilia. The laws of nature are
unchangeable.
Jura eodem modo distruuntur quo constituuntur. Laws are
abrogated or repealed by the same means by which they are made.
Juramentum est indivisibile, et non est admittendum in parte
verum et in parte falsam. An oath is indivisible, it cannot be in
part true and in part false.
Jurato creditur in judicio. He who makes oath is to be believed
in judgment.
Jurare est Deum in testum vocare, et est actus divini cultus.
To swear is to call God to witness, and is an act of religion. 3
Co. Inst. 165. Vide 3 Bouv. Inst. n. 3180, note; 1 Benth. Rat.
of Jud. Ev. 376, 371, note.
Juratores sunt judices facti. Juries are the judges of the
facts. Jenk. Cent. 58.
Juris effectus in executione consistit. The effect of a law
consists in the execution. Co. Litt. 289.
Jus accrescendi inter mercatores locum non habet, pro beneficio
commercii. The right of survivorship does not exist among
merchants for the benefit of commerce. Co. Litt. 182; 1 Bouv.
Inst. n. 682.
Jus accrescendi praefertur oneribus. The right of survivorship
is preferred to incumbrances. Co. Litt. 185.
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Jus accrescendi praefertur ultimae voluntati. The right of
survivorship is preferred to a last will. Co. Litt. 1856.
Jus descendit et non terra. A right descends, not the land. Co.
Litt. 345.
Jus est ars boni et aequi. Law is the science of what is good
and evil. Dig. 1, 1, 1, l.
Jus et fraudem numquam cohabitant. Right and fraud never go
together.
Jus ex injuria non oritur. A right cannot arise from a wrong. 4
Bing. 639.
Jus publicum privatorum pactis mutari non potest. A public
right cannot be changed by private agreement.
Jus respicit aequitatem. Law regards equity. Co. Litt. 24.
Jus superveniens auctori accressit successors. A right geowing
to a possessor accrues to a successor.
Justicia est virtus excellens et Altissimo complacens. Justice
is an excellent virtue and pleasing to the Most high. 4 inst. 58.
Justitia nemine neganda est. Justice is not to be denied. Jenk.
Cent. 178.
Justitia non est neganda, non differenda. Justice is not to be
denied nor delayed. Jenk. Cent. 93.
Justitia non novit patrem nec matrem, solum veritatem spectat
justitia. Justice knows neither father nor mother, justice looks
to truth alone. 1 Buls. 199.
La conscience est la plus changeante des regles. Conscience is
the most changeable of rules.
Lata culpa dolo aequiparatur. Gross negligence is equal to
fraud.
Le contrat fait la loi. The contract makes the law.
Legatos violare contra jus gentium est. It is contrary to the
law of nations to violate the rights of ambassadors.
Legatum morte testatoris tantum confirmatur, sicut donatio
inter vivos traditione solƒ. A legacy is confirmed by the death
of the testator, in the same manner as a gift from a living
person is by delivery alone. Dyer, 143.
Leges posteriores priores contrarias abrogant. Subsequent laws
repeal those before enacted to the contrary. 2 Rol. R. 410; 11
Co. 626, 630.
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Leges humanae nascuntur, vivunt et moriuntur. Human laws are
born, live and die. 7 co. 25.
Leges non verbis sed regus sunt impositae. Laws, not words, are
imposed on things. 10 Co. 101.
Legibus sumptis disinentibus, lege naturae utendum est. When
laws imposed by the state fail, we must act by the law of nature.
2 Roll. R. 298.
Legis constructio non facit injuriam. The construction of law
does no wrong. Co. Litt. 183.
Legis figendi et refigendi consuetudo periculosissima est. The
custom of fixing and refixing (making and annulling) laws is most
dangerous. 4 Co. Ad. Lect.
Legis interpretatio legis vim obtinet. Teh construction of law
obtains the force of law.
Legislatorum est viva vox, rebus et non verbis, legem imponere.
The voice of legislators is a living voice, to impose laws on
things and not on words. 10 Co. 101.
Legis minister non tenetur, in executione officii sui fugere
aut retrocedere. The minister of the law is not bound, in the
execution of his office, neither to fly nor retreat. 6 Co. 68.
Legitime imperanti parere necesse est. One who commands
lawfully must be obeyed. Jenk. Cent. 120.
Les fictions naissent de la loi, et non la loi des fictions.
Fictions arise from the law, and not law from fictions.
Lex aliquando sequitur aequitatem. The law sometimes follows
equity. 3 Wils. 119.
Lex aequitate guadet; appetit perfectum; est norma recti. The
law delights in equity; it covets perfection; it is a rule of
right. Jenk. Cent. 36.
Lex beneficialis rei consimili remedium praestat. A beneficial
law affords a remedy in a similar case. 2 Co. Inst. 689.
Lex citius tolerare vult privatum damnum quam publicum malum.
The law would rather tolerate a private wrong than a public evil.
Co. Litt. 152.
Lex de futuro, judex de praeterito. The law provides for the
future, the judge for the past.
Lex deficere non potest in justitiƒ exhibendaƒ. The law ought
not to fail in dispensing justice. Co. Litt. 197.
Lex dilationes semper exhorret. The law always abhors delay. 2
Co. Inst. 240.
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Lex est ab aeterno. The law is from everlasting.
Lex est dictamen rationis. Law is the dictate of reason. Jenk.
Cent. 117.
Lex est norma recti. Law is a rule of right.
Lex est ratio summa, quae jubet quae sunt utilia et necessaria,
et contraria prohibet. Law is the perfection of reason, which
commands what is useful and necessary and forbids the contrary.
Co. Litt. 319.
Lex est sanctio sancta, jubens honesta, et prohibens contraria.
Law is a scared sanction, commanding what is right and
prohibiting the contrary. 2 Co. Inst. 587.
Lex favet doti. The law favors dower.
Lex fingit ubi subsistit aequitas. Law feigns where equity
subsists. 11 Co. 90.
Lex intendit vicinum vicini facta scire. The law presumes that
one neighbor knows the actions of another. Co. Litt. 78.
Lex judicat de rebus necessario faciendis quasire ipsa factis.
The law judges of things which must necessarily be done, as if
actually done.
Lex necessitatis est lex temporis, i.e. instantis. The law of
necessity is the law of time, that is, time present. Hob. 159.
Lex neminem cogit ad vana seu inutilia peragenda. Teh forces no
one to do vain or useless things.
Lex nemini facit injuriam. The law does wrong to no one.
lex nemini operatur iniquum, nemini facit injuriam. The law
never works an injury, or does him a wrong. jenk. Cent. 22.
Lex nil facit frustra, nil jubet frustra. The law does nothing
and commands nothing in vain. 3 Buls. 279; Jenk. Cent. 17.
Lex non cogit impossibilia. The law requires nothing
impossible. Co. Litt. 231, b; 1 Bouv. Inst. n. 951.
Lex non curat de minimis. The law does not regard small
matters. Hob. 88.
Lex non cogit ad impossibilia. The forces not to
impossibilities. Hob. 96.
Lex non praecipit inutilia, quia inutilis labor stultus. The
law commands not useles things, because useless labor is foolish.
Co. Litt. 197.
Lex non deficit in justitia exibenda. The law does not fail in
showing justice.
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Lex non intendit aliquid impossibile. The law intends not
anything impossible. 12 Co. 89.
Lex non requirit verificare quod apparet curiae. The law does
not require that to be proved, which is apparent to the court. 9
Co. 54.
Lex plus laudatur quando ratione probatur. The law is the more
praised when it is consonant to reason.
Lex prospicit, non respicit. The law looks forward, not
backward.
Lex punit mendacium. The law punishes falsehood.
Lex rejicit superflua, pugnantia, incongrua. The law rejects
superfluous, contradictory and incongruous things.
Lex reprobat moram. The law dislikes delay.
Lex semper dabit remedium. The law always gives a remedy. 3
Bouv. Inst. n. 2411.
Lexspectat naturae ordinem. The law regards the order of
nature. Co. Litt. 197.
Lex succurit ignoranti. The laws succor the ignorant.
Lex semper intendit quod convenit ratione. The law always
intends what is agreeable to reason. Co. Litt. 78.
Lex uno ore omnes alloquitur. The law speaks to all with one
mouth. 2 Inst. 184.
Libertas inaestimabilis res est. Liberty is an inestimable
good. Dig. 50, 17, 106.
Liberum corpus aestimationem non recipit. The body of a freeman
does not admit of valuation.
Licet dispositio de interesse furture sit inutilis, tamen
potest fieri declaratio praecedens quae fortiatur effectum
interveniente novo actu. Although the grant of a future interest
be inoperative, yet a declaration precedent may be made, which
may take effect, provided a new act intervene. Bacon's Max. Reg.
14.
Licita bene miscentur, formula nisi juris obstet. Things
permitted should be well contrived, lest the form of the law
oppose. Bacon's Max. Reg. 24.
Linea recta semper praefertur transversali. The right line is
always preferred to the collateral. Co. Litt. 10.
Locus contractus regit actum. The place of the contract governs
the act.
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Longa possessio est pacis jus. Long possession is the law of
peace. Co. Litt. 6.
Longa possessio parit jus possidendi, et tollit actionem vero
domino. Long possession produces the right of possession, and
takes away from the true owner his action. Co. Litt. 110.
Longum tempus, et longus usus qui excedit memoria hominum,
sufficit pro jure. Long time and long use, beyond the memory of
man, suffices for right. Co. Litt. 115.
Loquendum ut vulgus, sentiendum ut docti. We speak as the
common people, we must think as the learned. 7 Co. 11.
Magister rerum usus; magistra rerum experientia. Use is the
master of things; experience is the mistriss of things. Co.
Litt. 69, 229.
Manga negligentia culpa est, magna culpa dolus est. Gross
negligence is a fault, gross fault is a fraud. Dig 50, 16, 226.
Magna culpa dolus est. Great neglect is equivalent to fraud.
Dig. 50, 16, 226; 2 Spears, R. 256; 1 Bouv. Inst. n. 646.
Maihemium est inter crimina majora minimum et inter minora
maximum. Mayhem is the least of great crimes, and the greatest of
small. Co. Litt. 127.
Mahemium est homicidium inchoatum. Mayhem is incipient
homicide. 3 Inst. 118.
Major haeriditas venit unicuique nostrum … jure et legibus quam
… parentibus. A greater inheritance comes to every one of us from
right and the laws than from parents. 2 Co. Inst. 56.
Major numerus in se continet minorem. The greater number
contains in itself the less.
Majore paenƒ affectus quam legibus statuta est, non est
infamis. One affected with a greater punishment than is provided
by law, is not infamous. 4 Co. Inst. 66.
Majori continet in se minus. The greater includes the less. 19
Vin. Abr. 379.
Majus dignum trahit in se minus dignum. The more worthy or the
greater draws to it the less worthy or the lesser. 5 Vin. Abr.
584, 586.
Majus est delictum seipsum occidare quam alium. it is a greater
crime to kill one's self than another.
Mala grammatica non vitiat chartam; sed in expositione
instrumentorum mala grammatica quoad fieri possit evitanda est.
Bad grammar does not vitiate a deed; but in the construction of
instruments, bad grammar, as far as it can be done, is to be
avoided. 6 Co. 39.
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Maledicta est expositio quae corrumpit textum. It is a bad
construction which corrupts the text. 4 Co. 35.
Maleficia non debent remanere impunita, et impunitas continuum
affectum tribuit delinquenti. Evil deeds ought not to remain
unpunished, for impunity affords continual excitement to the
delinquent. 4 Co. 45.
Malificia propositus distinguuntur. Evil deeds are
distinguished from evil purposes. Jenk. Cent. 290.
Malitia est acida, est mali animi affectus. Malice is sour, it
is the quality of a bad mind. 2 Buls. 49.
Malitia supplet aetatem. Malice supplies age. Dyer, 104. See
Malice.
Malum hominun est obviandum. The malice of men is to be
avoided. 4 Co. 15.
Malum non praesumitur. Evil is not presumed. 4 Co. 72.
Malum quo communius eo pejus. The more common the evil, the
worse.
Malus usus est abolendus. An evil custom is to be abolished.
Co. Litt. 141.
Mandata licita recipiunt strictam interpretationem, sed
illicita latam et extensam. lawful commands receive a strict
interpretation, but unlawful, a wode or broad construction.
Bacon's Max. Reg. 16.
Mandatarius terminos sobi positos transgredi non potest. A
mandatory cannot exceed the bounds of his authority. Jenk. Cent.
53.
Mandatum nisi gratuitum nullum est. Unless a mandate is
gratuitous it is not a mandate. Dig. 17, 1, 4; Inst. 3, 27; 1
Bouv. Inst. n. 1070.
Manifesta probatione non indigent. Manifest things require no
proof. 7 Co. 40.
Maris et faeminae conjunctio est de jure naturae. The union of
husband and wife is founded on the law of nature. 7 Co. 13.
Matrimonia debent esse libera. Marriages ought to be free.
Matrimonium subsequens tollit peccatum praecedens. A subsequent
marriage cures preceding criminality.
Maxime ita dicta quia maxima ejus dignitas et certissima
auctoritas, atque quod maximŠ omnibus probetur. A maxim is so
called because its dignity is chiefest, and its authority most
certain, and because universally approved by all. Co. Litt. 11.
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MaximŠ paci sunt contraria, vis et injuria. The greatest
enemies to peace are force and wrong. Co. Litt. 161.
Melior est justitia vere praeveniens quam severe pumens. That
justice which justly prevents a crime, is better than that which
severely punishes it.
Melior est conditio possidentis et rei quam actoris. Better is
the condition of the possessor and that of the defendant than
that of the plaintiff. 4 Co. Inst. 180.
Melior est causa possidentis. The cause of the possessor is
preferable. Dig. 50, 17, 126, 2,.
Melior est conditio possidentis, ubi neuter jus habet. Better is
the condition of the possessor, where neither of the two has a
right. Jenk. Cent. 118.
Meliorem conditionem suum facere potest minor, deteriorem
nequaquam. A minor can improve or make his condition better, but
never worse. Co. Litt. 337.
Melius est omnia mala pati quam malo concentire. It is better
to suffer every wrong or ill, than to consent to it. 3 Co. Inst.
23.
Melius est recurrere quam malo currere. It is better to recede
than to proceed in evil. 4 Inst. 176.
Melius est in tempore occurrere, quam post causam vulneratum
remedium quaerere. It is better to restrain or meet a thing in
time, than to see a remedy after a wrong has been inflicted. 2
Inst. 299.
Mens testatoris in testamentis spectanda est. In wills, the
intention of the testator is to be regarded. Jenk. Cent. 277.
Mentiri est contra mentem ire. To lie is to go against the
mind. 3 Buls. 260.
Merx est quidquid vendi potest. Merchandise is whatever can be
sold. 3 Metc. 365. Vide Merchandise.
Mercis appellatio ad res mobiles tantum pertinet. The term
merchandise belongs to movable things only. Dig. 50, 16, 66.
Minima paena corporalis est major qualibet pecuniariƒ. The
smallest bodily punishment is greater than any pecuniary one. 2
Inst. 220.
MinimŠ mutanda sunt quae certam habuerent interpretationem.
Things which have had a certain interpretation are to be altered
as little as possible. Co. Litt. 365.
Minor ante tempus agere non potest in casu proprietatis, nec
etiam convenire. A minor before majority cannot act in a case of
property, nor even agree. 2 Inst. 291.
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Minor minorem custodire non debet, alios enim praesumitur male
regere qui seipsum regere nuscit. A minor ought not to be
fuardian of a minor, for he is unfit to govern others who does
not know how to govern himself. Co. Litt. 88.
Misera est servitus, ubi jus est vagum aut incertum. It is a
miserable slavery where the law is vague or uncertain. 4 Co.
Inst. 246.
Mitius imperanti melius paretur. The more mildly one commands
the better is he obeyed. 3 Co. Inst. 24.
Mibilia personam sequuntur, immobilia situm. Movable things
follow the person, immovable their locality.
Modica circumstantia facti jus mutat. The smallest circumstance
may change the law.
Modus et conventio vincunt legem. Manner and agreement overrule
the law. 2 Co. 73.
Modus legel dat donationi. The manner gives law to a gift. Co.
Litt. 19 a.
Moneta est justum medium et mensura rerum commutabilium, nam
per meduim monetae fit omnium rerum conveniens, et justa
aestimatio. Money is the just medium and measure of all
commutable things, for, by the medium of money, a convenient and
just estimation of all things is made. Dav. 18. See 1 Bouv. Inst.
n. 922.
Mora reprobatur in lege. Delay is disapproved of in law.
Mors dicitur ultimum supplicium. Death is denominated the
extreme penalty. 3 Inst. 212.
Mortuus exitus non est exitus. To be dead born is not to be
born. Co. Litt. 29. See 2 Paige, 35; Domat, liv. pr‚l. t. 2, s.
1, n. 4, 6; 2 Bouv. Inst. n. 1721 and 1935.
Multa conceduntur per obliquum quae non conceduntur de directo.
Many things are conceded indirectly which are not allowed
directly. 6 co. 47. Multa in jure communi contra rationem
disputandi pro communi ultilitate introducta sunt. Many things
have been introduced into the common law, with a view to the
public good, whic are inconsistent with sound reason. Co. Litt.
70; Broom's Max. 67; 2 Co. R. 75. See 3 T. R. 146; 7 T. R.
252.
Multa multo exercitatione facilius quam regulis percipies. You
will perceive many things more easily by practice than by rules.
4 Co. Inst. 50.
Multa non vetat lex. quae tamen tacitŠ damnavit. The law
forbids many things, which yet it has silently condemned.
Multa transeunt cum universitate quae non per se transeunt.
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Many things pass as a whole which would not pass separately.
Multi multa, non omnia novit. Many men know many things, no one
knows everything. 4 Co. Inst. 348.
Multiplex et indistinctum parit confusionem; et questiones quo
simpliciores, eo lucidiores. Multiplicity and indistinctness
produce confusion; the more simple questions are the more lucid.
Hob. 335.
Multiplicatƒ transgressione crescat paenae inflictio. The
increase of punishment shouldbe in proportion to the increase of
crime. 2 Co. Inst. 479.
Multitudo errantium non parit errori patrocinium. The multitude
of those who err is no excuse for error. 11 Co. 75.
Multitudo imperitorum perdit curiam. A multitude of ignorant
practitioners destroys a court. 2 Co. Inst. 219.
Natura appetit perfectum, ita et lex. Nature aspires to
perfection, and so does the law. Hob. 144.
Natura non facit saltum, ita nec lex. nature makes no leap, nor
does the law. Co. Litt. 238.
Natura no facit vacuum, nec lex supervacuum. Nature makes no
vacuum, the law no supervacuum. Co. Litt. 79.
Naturae vis maxima, natura bis maxima. The force of nature is
greatest; nature is doubly great. 2 Co. Inst. 564.
Necessarium est quod non potest aliter se habere. That is
necessity which cannot be dispensed with.
Necessitas est lex temporis et loci. Necessity is the law of a
particular time and place. 8 Co. 69; H. H. P. C. 54.
Necessitaas excusat aut extenuat delicium in capitalibus, quod
non operatur idem in civilibus. Necessity excuses or extentuates
delinquency in capital cases, but not in civil. Vide Necessity.
Necessitas facit licitum quod alias non est licitum. Necessity
makes that lawful which otherwise is unlawful. 10 Co. 61.
Necessitas inducit privililegium quoad jura privata. Necessity
gives a preference with regard to private rights. Bacon's Max.
REg. 5.
Necessitas non habet legem. Necessity has no law. Plowd. 18.
See Necessity, and 15 Vin. Ab. 534; 22 Vin. Ab. 540.
Necessitas publica major est quam private. Public necessity is
greater than private. Bacon's Max. in REg. 5.
Necessitas quod cogit, defendit. Necessity defends what it
compels. H. H. P. C. 54.
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Necessitas vincit legem. Necessity overcomes the law. Hob. 144.
Negatio conclusionis est error in lege. The negative of a
conclusion is error in law. Wing. 268.
Negatio destruit negationem, et ambae faciunt affirmativum. A
negative destroys a negative, and both make an affirmative. Co.
Litt. 146.
Negatio duplex est affirmatio. A double negative is an
affirmative.
Negligentia semper habet infortuniam comitem. Negligence has
misfortune for a companion. Co. Litt. 246.
Neminem oportet esse sapientiorem legibus. No man ought to be
wiser than the law. Co. Litt. 97.
Nemo admittendus est inhabilitare seipsum. No one is allowed to
incapacitate himself. Jenk. Cent. 40. Sed vide "To stultify," and
5 Whart. 371.
Nemo agit in seipsum. No man acts against himself; Jenk. Cent.
40; therefore no man can be a judge in his own cause.
Nemo allegans suam turpitudinem, audiendus est. No one alleging
his own turpitude is to be heard as a witness. 4 Inst. 279.
Nemo bis punitur por eodem delicto. No one can be punished
twice for the same crime or misdemeanor. See Non bis in idem.
Nemo cogitur rem suam vendere, etiam justo pretio. No one is
bound to sell his property, even for a just price. Sed vide
Eminent Domain.
Nemo contra factum suum venire potest. No man ca contradict his
own deed. 2 Inst. 66.
Nemo damnum facit, nisi qui id fecit quod facere jus non habet.
No one is considered as committing damages, unless he is doing
what he has no right to do. dig. 50, 17, 151.
Nemo dat qui non habet. No one can give who does not possess.
Jenk. Cent. 250.
Nemo de domo sua extrahi debet. A citizen cannot be taken by
force from his house to be conducted before a judge or to prison.
Dig. 50, 17. This maxim in favor of Roman liberty is much the
same as that "every man's house is his castle."
Nemo debet esse judex in propriƒ causƒ. No one should be judge
in his own cause. 12 Co. 113.
Nemo debet ex alienƒ jacturƒ lucrari. No one ought to gain by
another's loss.
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Nemo debet immiscere se rei alienae ad se nihil pertinenti. No
one should interfere in what no way concerns him.
Nemo debet rem suam sine facto aut defectu suo amittere. No one
should lose his property without his act or negligence. Co. Litt.
263.
Nemo est haeres viventes. No one is an heir to the living. 2
Bl. Com. 107; 1 Vin. Ab. 104, tit. Abeyance; Merl. RŠp. verbo
Abeyance; Co. Litt. 342; 2 Bouv. Inst. n. 1694, 1832.
Nemo ex suo delicto melioroem suam conditionem facere potest.
No one can improve his condition by a crime. Dig. 50, 17, 137.
Nemo ex alterius facto praegravari debet. No man ought to be
burdened in consequence of another's act.
Nemo ex consilio obligatur. No man is bound for the advice he
gives.
Nemo in propria causa testis ese debet. No one can be a witness
in his own cause. But to this rule there are many exceptions.
Nemo inauditus condemnari debet, si non sit contumax. No man
ought to be condemned unheard, unless he be contumacious.
Nemo nascitur artifex. No one is born an artist. Co. LItt. 97.
Nemo patriam in qua natus est exuere, nec ligeantiae debitum
ejurare possit. No man can renounce the country in which he was
born, nor abjure the obligation of his allegiance. Co. LItt. 129.
Sed vide Allegiance; Expatriation; Naturalization.
Nemo plus juris ad alienum transfere potest, quam ispe habent.
One cannot transfer to another a right which he has not. Dig. 50,
17, 54; 10 Pet. 161, 175.
Nemo praesens nisi intelligat. One is not present unless he
understands. See Presence.
Nemo potest contra recordum verificare per patriam. No one can
verify by the country against a record. The issue upon a record
cannot be tried by a jury.
Nemo potest esse tenes et dominus. No man can be at the same
time tenant nad landlord of the same tenement.
Nemo potest facere per alium quod per se non potest. No one can
do that by another which he cannot do by himself.
Nemo potest sibi devere. No one can owe to himself. See
Confusion of Rights.
Nemo praesumitur alienam posteritatem suae praetulisse. NO one
is presumed to have preferred another's posterity to his own.
Nemo praesumitur donare. No one is presumed to give.
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Nemo praesumitur esse immemor suae aeternae salutis, et maxime
in articulo mortis. No man is presumed to be forgetful of his
eternal welfare, and particularly at the point of death. 6 Co.
76.
Nemo praesumitur malus. No one is presumed to be bad.
Nemo praesumitru ludere in extremis. No one is presumed to
trifle at the point of death.
Nemo prohibetur plures negotiationes sive artes exercere. No
one is restrained from exercising several kinds of business or
arts. 11 Co. 54.
Nemo prohibetur pluribus defensionibus uti. No one is
restrained from using several defences. Co. Litt. 304.
Nemo prudens punit ut praeterita revocentur, sed ut futura
praeveniantur. No wise one punishes that things done may be
revoked, but that future wrongs may be prevented. 3 Buls. 173.
Nemo punitur pro alieno delicto. No one is to be punished for
the crime or wrong of another.
Nemo punitur sine injuriƒ, facto, seu defalto. No one is
punished unless for some wrong, act or default. 2 Co. Inst. 287.
Nemo, qui condemnare potest, absolvere non potest. He who may
condemn may acquit. Dig. 50, 17, 37.
Nemo tenetur seipsum accusare. No one is bound to accuse
himself.
Nemo tenetur ad impossibile. No one is bound to an
impossibility.
Nemo tenetur armare adversarum contra se. No one is bound to
arm his adversary.
Nemo tenetur divinare. No one is bound to foretell. 4 Co. 28.
Nemo tenetur informare qui nescit, sed quisquis scire quod
informat. No one is bound to inform about a thing he knows not,
but he who gives information is bound to know what he says. Lane,
110.
Nemo tenetur jurare in suam turpitudinem. No one is bound to
testify to his own baseness.
Nemo tenetur seipsam infortunis et periculis exponere. No one
is bound to expose himself to misfortune and dangers. Co. Litt.
253.
Nemo tenetur seipsum accusare. No man is bound to accuse
himself.
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Nemo videtur fraudare eos qui sciunt, et consentiunt. One
cannot complain of having been deceived when he knew the fact and
gave his consent. Dig. 50, 17, 145.
Nihil dat qui non habet. He gives nothing who has nothing.
Nihil de re accrescit ei qui nihil in re quando jus accresceret
habet. Nothing accrues to him, who, when the right accrues, has
nothing in the subject matter. Co. Litt. 188.
Nihil facit error nominis cum de corpore constat. An error in
the name is nothing when there is certainty as to the person. 11
Co. 21.
Nihil habet forum ex scenƒ. The court has nothing to do with
what is not before it.
Nihil infra regnum subditos magis conservat in tranquilitate et
concordiƒ quam debita legum administratio. Nothing preserves in
tranquility and concord those who are subjected to the same
government better than a due administration of the laws. 2 Co.
Inst. 158.
Nihil in lege intolerabilius est, eandem rem diverso jure
censeri. Nothing in law is more intolerable than to apply the law
differently to the same cases. 4 Co. 93.
Nihil magis justum est quam quod necessarium est. Nothing is
more just that what is necessary. Dav. 12.
Nihil perfectum est dum aliquid restat agendum. Nothing is
perfect while something remains to be done. 2 co. 9.
Nihil possumus contra veritatem. We can do nothing against
truth. Doct. & Stu. Dial. 2, c. 6.
Nihil quod est contra rationem est licitum. Nothing against
reason is lawful. Co. Litt. 97.
Nihil quod inconveniens est licitum est. Nothing inconvenient
is lawful.
Nihil simul inventum est et perfectum. Nothing is invented and
perfected at the same moment. Co. Litt. 230.
Nihil tam naturale est, quƒm eo genere quidque dissolvere, quo
colligatum est. It is very natural that an obligation should not
be dissolved but by the same principles which were observed in
contracting it. Dig. 50, 17, 35. See 1 Co. 100; 2 Co. Inst. 359.
Nihil tam conveniens est naturali aequitati, quƒm voluntatem
domini voluntis rem suam in alium transferre, ratam haberi.
Nothing is more conformable to natural equity, than to confirm
the will of an owner who desires to transfer his property to
another. Inst. 2, 1, 40; 1 Co. 100.
Nil tamere novandum. Nothing should be rashly changed. Jenk.
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Cent. 163.
Nil facit error nominis, si de corpore constat. An error in the
name is immaterial, if the body is certain.
Nimia subtilitas in jure reporbatur. Too much subtlety is
reprobated in law.
Nimium altercando veritas amiltitur. By too much altercation
truth is lost. Hob. 344.
No man is presumed to do anything against nature. 22 Vin. Ab.
154.
No man shall take by deed but parties, unless in remainder.
No man can hold the same land immediately of two several
landlords. Co. Litt. 152.
No man shall set up his infamy as a defence. 2 W. Bl. 364.
Necessity creates equity.
No one may be judge in his own cause.
Nobiliores et beniginores presumptiones in dubiis sunt
praeferendae. When doubts arise the most generous and benign
presumptions are to be preferred.
Nomen est quasi rei notamen. A name is, as it were, the note of
a thing. 11 Co. 20.
Nomen non sufficit si res non sit de jure aut de facto. A name
does not siffice if there be not a thing by law or by fact. 4 Co.
107.
nomina si nescis perit cognitio rerum. If you know not the
names of things, the knowledge of things themselves perishes. Co.
Litt. 86.
Nomina sunt notae rerum. Names are the notes of things. 11 Co.
20.
Nomina sunt mutabilia, res autem immobiles. Names are mutable,
but things immutable. 6 Co. 66.
Nomina sunt symbola rerum. Names are the symbols of things.
Non accipi debent verba in demonstrationem falsam, quae
competunt in limitationem veram. Words ought not to be accepted
to import a false demonstration which have effect by way of true
limitation. Bacons' Max. REg. 13.
Non alio modo puniatur aliquis, quam secundum quod se habet
condemnatio. A person may not be punished differntly than
according to what the sentence enjoins. 3 Co. Inst. 217.
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Non concedantur citationes priusquam exprimatur super qua ne
fieri debet citatio. Summonses or citations should not be granted
before it is expressed under the circumstances whether the
summons ought to be made. 12 Co. 47.
Non auditor perire volens. One who wishes to perish ought not
to be heard. Best on Evidence, §385.
Non consentit qui errat. He who errs does not conosent. 1 Bouv.
Inst. n. 581.
Non debet, cui plus licet, quod minus est, non licere. He who
is permitted to do the greater, may with greater reason do the
less. Dig. 50, 17, 21.
Non decipitur qui scit se decipi. He is not deceived who know
himself to be deceived. 5 co. 60.
Non definitur in jure quid sit conatus. What an attempt is, is
not defined in law. 6 Co. 42.
Non differunt quae concordant re, tametsi non in verbis iisdem.
Those things which agree in substance though not in the same
words, do not differ. Jenk. Cent. 70.
Non effecit affectus nisi sequatur effectus. The intention
amounts to nothing unless some effect follows. 1 Roll. R. 226.
Non est arctius vinculum inter homines quam jusjurandum. There
is no stronger link among men than an oath. Jenk. Cent. 126.
Non est disputandum contra principia negantem. There is no
disputing against a man denying principles. Co. Litt. 343.
Non est recedendum … communi abservantiƒ. There is no departing
from a common observance. 2 Co. 74.
Non est regula quin fallat. There is no rule but what may fail.
Off. Ex. 212.
Non est certandum de regulis juris. There is no disputing about
rules of law.
Non faciat malum, ut inde veniat bonum. You are not to do evil
that good may come of it. 11 Co. 74.
Non impedit clausula derogatoria, quo minus ab eadem potestate
res dissolvantur a quibus constitutuntur. A derogatory clause
does not prevent things or acts from being dissolved by the same
power, by which they were originally made. Bacon's Max. Reg. 19.
Non in legendo sed in intelligendo leges consistunt. The laws
consist not in being read, but in being understood. 8 co. 167.
Non Licet quod dispendio licet. That which is permitted only at
a loss, is not permitted to be done. Co. Litt. 127.
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Non nasci, et natum mori, pari sunt. Not to be born, and to be
dead born, is the same.
Non obligat lex nisi promulgata. A law is not obligatory unless
it be promulgated.
Non observata forma, infertur adnullatio actus. When the form
is not observed, it is inferred that the act is annulled. 12 Co.
7.
Non omne quod licet honestum est. Everything which is permitted
is not becoming. Dig. 50, 17, 144.
Non omne damnum inducit injuriam. Not every loos produces an
injury. See 3 Bl. Com. 219; 1 Smith's Lead. Cas. 131; Broom's
Max. 93; 2 Bouv. Inst. n. 2211.
Non omnium quae a majoribus nostris constituta sunt ratio
reddit potest. A reason cannot always be given for the
institutions of our ancestors. 4 Co. 78.
Non potest adduci exception ejusdem rei cujus petitur
dissolutio. A plea of the same matter, the dissolution of which
is sought by the action, cannot be brought forward. Bacon's Max.
Reg. 2. When an action is brought to annul a proceeding, the
defendant cannot plead such proceeding in bar.
Non praestat impedimentum quod de jure non sortitur effectum. A
thing which has no effect in law, is not an impediment. Jenk.
Cent. 162.
Non quod dictum est, sed quod factum est, inspicitur. Not what
is said, but what is done, is to be regarded. Co. Litt. 36.
Non refert an quis assensum suum praefert verbis, an rebus
ipsis et factis. It is immaterial whether a man gives his assent
by words or by acts and deeds. 10 Co. 52.
Non refert quid ex aequipolentibus fiat. What may be gathered
from words of tantamount meaning, is of no consequence when
omitted. 5 Co. 122.
Non refert quid notum sit judice si notum non sit in forma
judici. It matters not what is known to the judge, if it is not
known to him judicially. 3 Buls. 115.
Non refert verbis an factis fit revocatio. It matters not
whether a revocation be by words or by acts. Cro. Car. 49.
Non solum quid licet, sed quidest conveniens considerandum,
quia nihil quod inconveniens est licitum. Not only what is
permitted, but what is proper, isto be considered, because what
is improper is illegal. Co. Litt. 66.
Non sunt longa ubi nihil est quod demere possis. There is no
prolixity where nothing can be omitted. Vaugh. 138.
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Non temere credere, est nervus sapientae. Not to believe rashly
is the nerve of wisdom. 5 Co. 114.
Non videtur quisquam id capere, quod ei necesse est alii
restituere. One is not considered as acquiring property in a
thing which he is bound to restore. Dig. 50, 17, 51.
Non videntur qui errant consentire. He who errs is not
considered as consenting. Dig. 50, 17, 116.
Non videtur consensum retinuisse si quis ex praescripto
minantis aliquid immutavit. He does not appear to have retained
his consent, if he have changed anything through the means of a
party threatening. Bacon's Max. Reg. 33.
Novatio non praesumitur. A novation is not presumed. See
Novation.
Novitas non tam utilitate prodest quam novitate perturbat.
Novelty benefits not so much by its utility, as it disturbs by
its novelty. Jenk. Cent. 167.
Novum judicium non dat novum jus, sed declarat antiquum. A new
judgment does not make a new law, but declares the old. 10 Co.
42.
Nul ne doit s'enrichir aux depens des autres. No one ought to
enrich himself at the expense of others.
Nul prendra advantage de son tort demesne. No one shall take
advantage of his own wrong.
Nulla impossibilia aut inhonesta sunt praesumenda.
Impossibilities and dishonesty are not to be presumed. Co. Litt.
78.
Nulle regle sans faute. There is no rule without a fault.
Nulli enim res sua servit jure servitutis. No one can have a
servitude over his own property. Dig. 8, 2, 26; 17 Mass. 443; 2
Bouv. Inst. n. 1600.
Nullum exemplum est idem omnibus. No example is the same for
all purposes.
Nullum iniquum praesumendum in jure. Nothing unjust is presumed
in law. 4 Co. 72.
Nullum simile est idem. No simile is the same. Co. Litt. 3.
Nullus commodum capere potest de injuriƒ suƒ propriƒ. No one
shall take advantage of his own wrong. Co. Litt. 148.
Nullus recedat e curiƒ concellariƒ sine remedio. No one ought
to depart out of the court of chancery without a remedy.
Nunquam fictio sine lege. There is no fiction without law.
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Nuptias non concubitas, sed consensus facit. Cohabitation does
not make the marriage, it is the consent of the parties. Dig 50,
17, 30; 1 Bouv. Inst. n. 239; Co. Litt. 33.
Obedientia est legis essentia. Obedience is the essence of the
law. 11 Co. 100.
Obtemperandum est consuetudini rationabili tanquam legi. A
reasonable custom is to be obeyed like law. 4 Co. 38.
Officers may not examine the judicial acts of the court.
Officia magistratus non debent esse venalia. The offices of
magistrates ought not to be sold. Co. Litt. 234.
Officia judicialia non concedantur antequam vacent. Judicial
offices ought not to be granted before they are vacant. 11 Co. 4.
Officit conatus si effectus sequatur. The attempt becomes of
consequence, if the effect follows.
Officium nemini debet esse damnosum. An office ought to be
injurious to no one.
Omissio eorum quae tacite insunt nihil operatur. The omission
of those things which are silently expressed is of no
consequence.
Omne actum ab intentione agentis est judicandum. Every act is
to be estimated by the intention of the doer.
Omne crimen ebrietas et incendit et detegit. Drunkenness
inflames and produces every crime. Co. Litt. 247.
Omne magis dignum trahit ad se minus dignum sit antiquius.
Every worthier thing draws to it the less worthy, though the
latter be more ancient. Co. Litt. 355.
Omne magnum exemplum habet aliquid ex iniquio, quod publica
utilitate compensatur. Every great example has some portion of
evil, which is compensated by its public utility. Hob. 279.
Omne majus continet in se minus. The greater contains in itself
the less. Co. Litt. 43.
Omne majus minus in se complecitur. Always the greater is
embraced in the minor. Jenk. Cent. 208.
Omne testamentum morte consummatum est. Every will is
consummated by death. 3 Co. 29.
Omne sacramentum debet esse de certa scientiƒ. Every oath ought
to be founded on certain knowledge. 4 Co. Inst. 279.
Omnia delicta in aperto leviora sunt. All crimes committed
openly are considered lighter. 8 co. 127.
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Omnia praesumuntur contra spoliatorem. All things are presumed
against a wrong doer.
Omnia praesumuntur legitime facta donec probetur in contrarium.
All things are presumed to be done legitimately, until the
contrary is proved. Co. Litt. 232.
Omnia praesumuntur rite esse acta. All things are presumed to
be done in due form.
Omnia praesumuntur solemniter esse acta. All things are
presumed to be done solemnly. Co. Litt. 6.
Omnia quae sunt uxoris sunt ipsius viri. All things which are
of the wife, belong to the husband. Co. Litt. 112.
Omnis actio est loquela. Every action is a complaint. Co. Litt.
292.
Omnis conclusio boni et veri judicii sequitur ex bonis et veris
praemissis et dictis juratorem. Every conclusion of a good and
true judgment arises from good and true premises, and the sayings
of jurors. Co. Litt. 226.
Omnis consensus t ollit errorem. Every consent removes error. 2
Inst. 123.
Omnis definitio in jure periculosa est; parum est enim ut non
subverti posset. Every devinition in law is perilous, and but a
little may reverse it. Dig. 50, 17, 202.
Omnis exceptio est ipsa quoque regula. An exception is, in
itself, a rule.
Omnis innovatio plus novitate perturbat quam utilitate prodest.
Every innovation disturbs more by its novelty than it benefits by
its utility.
Omnis interpretatio si fieri potest ita fienda est in
instrumentis, ut omnes contrarietates amoveantur. The
interpretation of insturments is to be made, if they will admit
of it, so that all contradictions may be removed. Jenk. Cent. 96.
Omnis interpretatio vel declarat, vel extendit, vel restringit.
Every interpretation either declares, extends or restrains.
Omnis regula suas patitur exceptiones. All rules of law are
liable to exceptions.
Omnis privatio praesupponit habitum. Every privation
presupposes former enjoyment. Co. Litt. 339.
Omnis ratihabitio retro trahitur et mandato aequiparatur. Every
consent given to what has already been done, has a retrospective
effect and equals a command. Co. Litt. 207.
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Once a fraud, always a fraud. 13 Vin. Ab. 539.
Once a mortgage always a mortgage.
Once a recompense always a recompense. 19 Vin. Ab. 277.
One should be just before he is generous.
One may not do an act to himself.
Oportet quod certa res deducatur in judicium. A thing, to be
brought to judgment, must be certain or definite. Jenk. Cent. 84.
Oportet quod certa sit res venditur. A thing, to be sold, must
be certain or definite.
Optima est lex, quae minimum relinquit arbitrio judicis. That
is the best system of law which confides as little as possible to
the discretion of the judge. Bac. De Aug. Sci. Aph. 46.
Optimam esse legem, quae minimum relinquit arbitrio judicis;
id quod certitudo ejus praestat. That law is the best which
leaves the least discretion to the judge; and this is an
advantage which results from certainty. Bacon, De Aug. Sc. Aph.
8.
Optimus judex, qui minimum sibi. He is the best judge who
relies as little as possible on his own discretion. Bac. De Aug.
Sci. Aph. 46.
Optimus interpretandi modus est sic legis interpretare ut leges
legibus accordant. The best mode of interpreting laws isto make
them accord. 8 Co. 169.
Optimus interpres rerum usus. Usage is the best interpretor of
things. 2 Inst. 282.
Optimus legum interpres consuetudo. Custom is the best
interpretor of laws. 4 Inst. 75.
Ordine placitandi servato, servatur et jus. The order of
pleading being preserved, the law is preserved. Co. Litt. 363.
Origo rei inspici debet. The origin of a thing ought to be
inquired into. 1 Co. 99.
Paci sunt maxime contraria, vis et injuria. Force and wrong are
greatly contrary to peace. Co. Litt. 161.
Pacta privata juri publico derogare non possunt. Private
contracts cannot derogate from the public law. 7 Co. 23.
Pacto aliquod licitum est, quid sine pacto non admittitur. By a
contract something is permitted, which, without it, could not be
admitted. Co. Litt. 166.
Par in parem imperium non habet. An equal has no power over an
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equal. Jenk. Cent. 174. Example: One of two judges of the same
court cannot commit the other for contempt.
Paria copulantur paribus. Things unite with similar things.
paribus sententiis reus absolvitur. When opinions are equal, a
defendant is acquitted. 4 Inst. 64.
Parte quacumque integranta sublata, tollitur totum. An integral
part being taken away, the whole is taken away. 3 Co. 41.
Partus ex legitimo thoro non certius noscit matrem quam
genitorem suam. The offspring of a legitimate bed knows not his
mother more certainly than his father. Fortes. c. 42.
Partus sequitur ventrem. The offspring follow the condition
ofhte mother. This is the law in the case of slaves and animals;
1 Bouv. Inst. n. 167, 502; but with regard to freemen, children
follow the condition of the father.
Parum differunt quae re concordant. Thing differ but littel
which agree in substance. 2 Buls. 86.
Parum est latam esse sententiam, nisi mandetur executioni. It
is not enough that sentence should be given unless it is put in
execution. Co. Litt. 289.
Parum proficit scire quid fieri debet, si non cognoscas quomodo
sit facturum. It avails little to know what ought to be done, if
you do not know how it is to be done. 2 Co. Inst. 503.
Patria potestas in pietate debet, non in atrocitate consistere.
Paternal power should consist in affection, not in atrocity.
Pater is est quem nuptiae demonstrant. The father is he whom
the marriage points out. 1 Bl. Com. 446; 7 mart. N. S. 548, 553;
Dig. 2, 4, 5; 1 Bouv. Inst. n. 273, 304, 322.
Peccata contra naturam sunt gravissima. Offences against nature
are the heaviest. 3 Co. Inst. 20.
Peccatum peccato addit qui culpae quam facit patrocinium
defensionis adjungit. He adds one offence to another, who, when
he commits a crime, joins to it the protection of a defence. 5
Co. 49.
Per rerum naturam, factum negantis nulla probatio est. It is in
the nature of things that he who denies a fact is not bound to
prove it.
Per varius actus, legem experientia facit. By various acts
experience framed the law. 4 Co. Inst. 50.
Perfectum est cui nihil deest secundum suae perfectionis vel
naturae modum. That is perfect which wants nothing in addition to
the measure of its perfection or nature. Hob. 151.
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Periculosum est res novas et inusitatas inducere. It is
dangerous to introduce new and dangerous things. Co. Litt. 379.
Periculum rei venditae, nondum traditae, est emptoris. The
purchaser runs the risk of the loss of a thing sold, though not
delivered. 1 Bouv. Inst. n. 939; 4 B. & C. 941; 4 B. & C. 481.
Perpetua lex est, nullam legem humanum ac positivam perpetuam
esse; et clausula quae abrogationem excludit initio non valet.
It is a perpetual law that no human or positive law can be
perpetual; and a clause in a law which precludes the power of
abrogation is void ab initio. Bacon's Max. in Reg. 19.
Perpetuities are odious in law and equity.
Persona conjuncta aequiparatur interesse proprio. A person
united equal one's own interest. Bacon's Max. Reg. 18. This means
that a personal connexion, as nearness of blood or kindred, may
in some cases, raise a use.
Perspicua vera non sunt probanda. Plain truths need not be
proved. Co. Litt. 16.
Pirata est hostis humani generis. A pirate is an enemy of the
human race. 3 Co. Inst. 113.
Pluralis numerus est duobus contentus. The plural number is
contained in two. 1 Roll. R. 476.
Pluralities are odious in law.
Plures cohaeredes sunt quasi unum corpus, propter unitatem
juris quod habent. Several co-heirs are as one body, by reason of
the unity of right which they possess. Co. Litt. 163.
Plures participes sunt quasi unum corpus, in eo quod unum jus
habent. Several partners are as one body, by reason of the unity
of their rights. Co. Litt. 164.
Plus exempla quam peccata nocent. Examples hurt more than
offences.
Plus peccat auctor quam actor. The instigator of a crime is
worse than he who perpetrates it. 5 Co. 99.
Plus valet unus oculatus testis, quam auriti de cem. One eye
witness is better than ten ear ones. 4 Inst. 279.
Paenƒ ad paucos, metus ad omnes perveniat. A punishment
inflicted on a few, causes a dread to all. 22 Vin. Ab. 550.
Paenƒ non potest, culpa perennis erit. Punishment may have an
end, crime is perpetual. 21 Vin. Ab. 271.
Paenƒ ad paucos, metus ad omnes. Punishment to few, dread or
fear to all.
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Paenae potius molliendae quam exasperendae sunt. Punishments
should rather be softened than aggravated. 3 Co. Inst. 220.
Posito uno oppositorum negatur alterum. One of two opposite
positions being affirmed, the other is denied. 3 Ro..l R. 422.
Possessio est quasi pedis positio. Possession is, as it were,
the position of the foot. 3 Co. 42.
Possession of the termer, possession of the reversioner.
Possession is a good title, where no better title appears. 20
Vin. Ab. 278.
Possessor has right against all men but him who has the very
right.
Possibility cannot be on a possibility.
Posteriora derogant prioribus. Posterior laws derogate former
ones. 1 Bouv. Inst. n. 90.
Potentia non est nisi ad bonum. Power is not conferred, but for
the public good.
Potentia debet sequi justiciam, non antecedere. Power ought to
follow, not to precede justice. 3 Buls. 199.
Potentia inutilis frustra est. Useless power is vain.
Potest quis renunciare pro se, et suis, juri quod pro se
introductum est. A man may relinquish, for himself and his heirs,
a right which was introduced for his own benefit. See 1 Bouv.
Inst. n. 83.
Potestas strictŠ interpretatur. Power should be strictly
interpreted.
Postestas suprema seipsum dissolvare potest, ligare non potest.
Supreme power can dissolve, but cannot bind itself.
Potior est conditio defendentis. Better is the condition of the
defendant, than that of the plaintiff.
Potior est conditio possidentis. Better is the condition of the
possessor.
Praepropera consilia, raro sunt prospera. Hasty counsels are
seldom prosperous. 4 Inst. 57.
Praestat cautela quam medela. Prevention is better than cure.
Co. Litt. 304.
Praesumptio violenta, plena probatio. Strong presumption is
full proof.
Praesumptio violenta valet in lege. Strong presumption avails
in law.
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Praetextu liciti non debet admitti illicitum. Under pretext of
legality, what is illegal ought not to be admitted. 10 Co. 88.
Praxis judicim est interpres legum. The practice of the judges
is the interpreter of the laws. Hob. 96.
Precedents that pass sub silentio are of little or no
authority. 16 Vin. 499.
Precedents has as much law as justice.
Praesentia corporis tollit errorem nominis, et veritas nominis
tollit errorem demonstrationis. The presence of the body cures
the error in the name; the truth of the name cures an error in
the description. Bacon's Max. Reg. 25.
Pretium succedit in locum rei. The price stands in the place of
the thing sold. 1 Bouv. Inst. n. 939.
Prima pars aequitatis aequalitas. The radical element of
justice is equality.
Principia data sequuntur concomitantia. Given principles follow
their concomitants.
Principia probant, non probantur. Principles prove, they are
not proved. 3 Co. 40. See Principles.
Principiorum non est ratio. There is no reasoning of
principles. 2 Buls. 239. See Principles.
Principium est potissima pars cujusque rei. The principle of a
thing is its most powerful part. 10 Co. 49.
Prior tempore, potior jure. He who is before in time, is
preferred in right.
Privatorum conventio juri publico non derogat. Private
agreements cannot derogate from public law. Dig. 50, 17, 45, 1.
Privatum incommodum publico bono peusatur. Private
inconvenience is made up for by public benefit.
Privilegium est beneficium personale et extinguitur cum
personƒ. A privilege is a personal benefit and dies with the
person. 3 Buls. 8.
Privilegium est quasi privata lex. A privilege is, as it were,
a private law. 2 Buls. 8.
Probandi necessitas incumbit illi ui agit. The necessity of
proving lies with him who makes the charge.
Probationes debent esse evidentes, id est, perspicuae et
faciles intelligi. Proofs ought to be made evident, that is,
clear and easy to be understood. Co. Litt. 283.
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Probatis extremis, praesumitur media. The extremes being
proved, the intermediate proceedings are presumed. 1 Greenl. Ev.
§20.
Processus legis est gravis vexatio, executio legis coronat
opus. The process of the law is a grievous vexation; the
execution of the law crowns the work. Co. Litt. 289.
Prohibetur ne quis faciat in suo quod nocere possit alieno. It
is prohibited to do on one's own property that which may injure
another's. 9 co. 59.
Propinquior excludit propinquum; propinquus remotum; et
remotus remotiorem. He who is nearer excludes him who is near;
he who is near, him who is remote; he who is remote, him who is
more remote. co. Litt. 10.
Proprietas verborum est salus proprietatum. The propriety of
words is the safety of property.
Protectio trahit subjectionem, subjectio projectionem.
Protection draws to it subjection, subjection, protection. Co.
Litt. 65.
Proviso est providere praesentia et futura, non praeterita. A
proviso is to provide for the present and the future, not the
past. 2 Co. 72.
Proximus est cui nemo antecedit; supremus est quem nemo
sequitur. He is next whom no one precedes; he is last whom no
one follows.
Prudentur agit qui praecepto legis obtemperat. He acts
prudently who obeys the commands of the law. 5 Co. 49.
Pueri sunt de sanguine parentum, sed pater et mater non sunt de
sanguine puerorum. Children are of the blood of their parents,
but the father and mother are not the blood of their children. 3
Co. 40.
Purchaser without notice not obliged to discover to his own
hurt. See 4 Bouv. Inst. n. 4336.
Quae ab hostibus capiuntur, statim capientium fiunt. Things
taken from public enemies immediately become the property of the
captors. See Infra praesidia.
Quae ad unum finem loquuta sunt; non debent ad alium
detorqueri. Words spoken to one end, ought not to be perverted to
another. 4 Co. 14.
Quae cohaerent personae ƒ personƒ separari nequeunt. Things
which belong to the person ought not to be separated from the
person. Jenk. Cent. 28.
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Quae communi legi derogant stricte interpretantur. Laws which
derogate from the common law ought to be strictly construed.
Jenk. Cent. 231.
Quae contra rationem juris introducta sunt, non debent trahi in
consequentiam. Things introduced contrary to the reason of the
law, ought not to be drawn into precedents. 12 Co. 75.
Quae dubitationis causƒ tollendae inseruntur communem legem non
laedunt. Whatever is inserted for the purpose of removing doubt,
does not hurt or affect the common law. Co. Litt. 205.
Quae incontinenti vel certo fiunt inesse videntur. Whatever is
done directly and certainly, appears already in existence. Co.
Litt. 236.
Quae in auriƒ acta sunt rite agi praesummuntur. Whatever is
done in court is presumed to be rightly done. 3 Buls. 43.
Quae in partes dividi nequeunt solida, a singulis praestantur.
Things which cannot be divided into parts are rendered entire
severally. 6 Co. 1.
Quae inter alios acta sunt nemini nocere debent, sed prodesse
possunt. Transactions between strangers may benefit, but cannot
injure, persons who are parties to them. 6 Co. 1.
Quae malasunt inchoata in principio vex bono peragantur exitu.
Things bad in the commence ment seldom end well. 4 Co. 2.
Quae non valeant singula, juncta juvant. Things which do not
avail singly, when united have an effect. 3 Buls. 132.
Quae praeter consuetudinem et morem majorum fiunt, neque
placent, necque recta videntur. What is done contrary to the
custom of our ancestors, neither pleases nor appears right. 4 Co.
78.
Quae rerum naturƒ prohibentur, nullƒ lege confirmata sunt.
Whatis prohibited inthe nature of things, cannot be confirmed by
law. Finch's Law, 74.
Quaecumque intra rationem legis inveniuntur, intra legem ipsam
esse judicantur. Whatever appears within the reason of the law,
ought to be considered within the law itself. 2 Co. Inst. 689.
Quaelibet concessio fortissime contra donatorem interpretanda
est. Every grant is to be taken most strongly against the
grantor. Co. Litt. 183.
Quaelibet jurisdictio cancellos suos habet. Every jurisdiction
has its bounds.
Qualibet paena corporalis, quam vis minima, major est quƒlibet
paenƒ pecuniariƒ. Every corporal punishment, although the very
least, is greater than pecuniary punishment. 3 Inst. 220.
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Quaeras de dubiis, legem bene discere si vis. Inquire into
them, is the way to know what things are really true. Litt. §443.
Qualitas quae inesse debet, facile praesumitur. A quality which
ought to form a part, is easily presumed.
Quam longum debet esse rationabile tempus, non definitur in
lege, sed pendet ex discretione justiciariorum. What is
reasonable time, the law does not define; it is left to the
discretion of the judges. Co. Litt. 56. See 11 Co. 44.
Quamvis aliquid per se non sit malum, tamen si sit mali
exemple, non est faciendum. Although, in itself, a thing may not
be had, yet, if it holds out a bad example, it is not to be done.
2 Co. Inst. 564.
Quamvis lex generaliter loquitur, restringenda tamen est, ut
cessante ratione et ipsa cessat. Although the law speaks
generally, it is to be restrained when the reason on which it is
founded fails. 4 Co. Inst. 330.
Quando abest provisio partis, adest provisio legis. A defect in
the provision of the party is supplied by a provision of the law.
6 Vin. Ab. 49.
Quando aliquid prohibetur ex directo, prohibetur et per
obliquum. When anything is prohibited directly, it is prohibited
indirectly. Co. Litt. 223.
Quando charta continet generalem clausulam, posteaque descendit
ad verba specialia quae clausulae generali sunt constnanea
interpretanda est charta secundum verba specialia. When a deed
contains a general clause, and afterwards descends to special
words, consistent with the general clause, the deed is to be
construed according to the special words. 8 Co. 154.
Quando do una et eadem re, duo onerabiles existunt, unus, pro
insufficientia alterius, de integro onerabitur. When two persons
are liable on a joint obligation, if one makes default the other
must bear the whole. 2 Co. Inst. 277.
Quando dispositio referri potest ad duas res, ita quod secundum
relationem unam vitiatur et secundum alteram utilis sit, tum
facienda est relatio ad illam ut valeat dispositio. When a
disposition may be made to refer to two things, so that according
to one reference, it would be vitiated, and by the other it would
be made effectual, such a reference must be made to the
disposition which is to have effect. 6 co. 76.
Quando diversi considerantur actus ad aliquem statum
perficiendum, plus respicit lex acium originalem. When two
different acts are required to the formation of an estate, the
law chiefly regards the original act. 10 Co. 49.
Quando duo juro concurrunt in und personƒ, aequum est ac si
essent in diversis. When two rights concur in one person, it is
the same as if they were in two separate persons. 4 Co. 118.
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Quando lex aliquid alicui concedit, concedere videtur id sine
quo res ipsa esse non potest. When the law gives anything, it
gives the means of obtaining it. 5 Co. 47.
Quando lex aliquid alicui concedit, omnia incidentia tacite
conceduntur. When the law gives anything, it gives tacitly what
is incident to it. 2 Co. Inst. 326; Hob. 234.
Quando lex est specialis, ratio autem generalis, generaliter
lex est intelligenda. When the law is special, but its reason is
general, the law is to be understood generally. 2 co. Inst. 83;
10 Co. 101.
Quando licet id quod majus, videtur licere id quod minus. When
the greate is allowed, the less seems to be allowed also.
Quando plus fit quam fieri debet, videtur etiam illud fieri
quod faciendum est. When more is done than ought to be donoe,
that shall be considered as performed, which should have been
performed; as, if a man having a power to make a lease for ten
years, make one for twenty years, it shall be void for the
surplus. Broom's Max. 76; 8 Co. 85.
Quando verba et mens congruunt, non est interpretationi locus.
When the words and the mind agree, there is no place for
interpretation.
Quem admodum ad quaestionem facti non respondent judices, ita
ad quaestionem juris non respondent juratores. In the same manner
that judges do not answer to questions of fact, so jurors do not
answer to questions of law. Co. Litt. 295.
Qui accusat integrae famae sit et non criminosus. Let him who
accuses be of a clear fame, and not criminal. 3 Co. Inst. 26.
Qui adimit medium, dirimit finem. He who takes away the means,
destroys the end. Co. Litt. 161.
Qui aliquid staruerit parte inaudita altera, aequum licet
dixerit, haud aequum facerit. He who decides anything, a party
being unheard, though he should decide right, does wrong. 6 Co.
52.
Qui bene interrogat, bene docet. He who questions well, learns
well. 3 Buls. 227.
Qui bene distinguit, bene docet. He who distinguishes well,
learns well. 2 Co. Inst. 470.
Qui concedit aliquid, concedere videtur et id sine quo
concessio est irrita, sine quo res ipsa esse non potuit. He who
grants anything, is considered as granting that, without which
his grant would be idle, without which the thing itself could not
exist. 11 Co. 52.
Qui confirmat nihil dat. He who confirms does not give. 2 Bouv.
Inst. n. 2069.
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Qui contemnit praeceptum, contemnit praecipientem. He who
contemns the precept, contemns the party giving it. 12 Co. 96.
Qui cum alio contrahit, vel est, vel debet esse non ignarus
conditio ejus. He who contracts, knows, or ought to know, the
quality of the person with whom he contracts, otherwise he is not
excusable. Dig. 50, 17, 19; 2 Hagg. Consist. Rep. 61.
Qui destruit medium, destruit finem. He who destroys the means,
destroys the end. 11 Co. 51; Shep. To. 342.
Qui doit inheritoer al pŠre, doit inheriter al fitz. He who
ought to inherit from the father, ought to inherit from the son.
Qui ex damnato coitu nascuntur, inter liberos non computantur.
He who is born of an illicit union, is not counted among the
children. Co. Litt. 8. See 1 Bouv. Inst. n. 289.
Qui evertit causam, evertit causatum futurum. He who overthrows
the cause, overthrows its future effects. 10 Co. 51.
Qui facit per alium facit per se. He who acts by or through
another, acts for himself. 1 Bl. Com. 429; Story, Ag. §440; 2
Bouv. Inst. n. 1273, 1335, 1336; 7 Man. & Gr. 32, 33.
Qui habet jurisdictionem absolvendi, habet jurisdictionem
ligandi. He who has jurisdiction to loosen, has jurisdiction to
bind. 12 Co. 59.
Qui haeret in litera, haeret in cortice. He who adheres to the
letter, adheres to the bark. Co. Litt. 289.
Qui ignorat quant–m solvere debeat, non potest improbus videre.
He who does not know what he ought to pay, does not want probity
in not paying. Dig. 50, 17, 99.
Qui in utero est, pro jam nato habetur quoties de ejus commodo
quaeritur. He who is in the womb, is considered as born, whenever
it is for his benefit.
Qui jure suo utitur, nemini facit injuriam. He who uses his
legal rights, harms no one.
Qui jussu judicis aliquod fuerit non videtur dolo malo fecisse,
quia parere necesse est. He who does anything by command of a
judge, will not be supposed to have acted from an improper
motive, because it was necessary to obey. 10 Co. 76.
Qui male agit, odit lucem. He who acts badly, hates the light.
7 Co. 66.
Qui melius probat, melius habet. He who proves most, recovers
most. 9 Vin. Ab. 235.
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Qui molitur insidias in patriam, id facit quod insanusnauta
perforans navem in qua vehitur. He who betrays his country, is
like the insane sailor who bores a hole in the ship which carries
him. 3 Co. Inst. 36.
Qui nascitur sine legitimo matrimonio, matrem sequitur. He who
is born out of lawful matrimonu, follows the condition of the
mother.
Qui non cadunt in constantem virem, vani timores sunt
astinandi. Those are vain fears which do not affect a man of a
firm mind. 7 Co. 27.
Qui non libere veritatem pronunciat, proditor est verilatis. He
who does not willingly speak the truth, is a betrayer of the
truth.
Qui non obstat quod obstare potest facere videtur. He who does
not prevent what he can, seems to commit the thing. 2 Co. Inst.
146.
Qui non prohibit quod prohibere potest assentire videtur. He
who does not forbid what he can forbid, seems to assent. 2 Inst.
305.
Qui non propulsat injuriam quando potest, infert. He who does
not repel a wrong when he can, induces it. Jenk. Cent. 271.
Que obstruit aditum, destruit commodum. He who obstructs an
entrance, destroys a convenience. Co. Litt. 161.
Qui omne dicit, nihil excludit. He who says all, excludes
nothing. 4 Inst. 81.
Qui parcit nocentibus, innocentibus punit. He who spares the
guilty, punishes the innocent.
Qui peccat ebuius, luat sobrius. He who offends drunk, must be
punished when sober. Car. R. 133.
Qui per alium facit per seipsum facere videtur. He who does
anything through another, is considered as doing it himself. Co.
Litt. 258.
Qui per fraudem agit, frustra agit. He who acts fraudrlently
acts in vain. 2 Roll. R. 17.
Qui potest et debet vetare, jubet. He who can and ought to
forbid, and does not, commands.
Qui primum peccat ille facit rixam. He who first offends,
causes the strife.
Qui prior est tempore, potior est jure. He who is first or
before in time, is stronger in right. Co. Litt. 14 a; 1 Story,
Eq. Jur. §64 d; Story Bailm. §312; 1 Bouv. Inst. n. 952; 4
Bouv. Inst. n. 3728.
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Qui providet sibi, providet haredibus. He who provides for
himself, provides for his heirs.
Qui rationem in omnibus quarunt, rationem subvertunt. He who
seeks a reason for everything, subverts reason. 2 Co. 75.
Qui semel actionem renunciaverit, amplius repetere non potest.
He who renounces his action once, cannot any more repeat it. 8
Co. 59. See Retraxit.
Qui semel malus, semper prasumitur esse malus in eodem genere.
He who is once bad, is presumed to be always soin the same
degree. Cro. Car. 317.
Que sentit commodum, sentire debet et onus. He who derives a
benefit from a thing, ought to feel the disadvantages attending
it. 2 Bouv. Inst. n. 1433.
Qui tacet consentire videtur. He who is silent appears to
consent. Jenk. Cent. 32.
Qui tardius solvit, minus solvit. He who pays tardily, pays
less than he ought. Jenk.Cent. 38.
Qui timent, cavent et vitant. They who fear, take care and
avoid. Off. Ex. 162.
Qui vult decipi, decipiatur. Set him who wishes to be deceived,
be deceived.
Quicpuid acquiritur servo, acquiritur domino. Whatever is
acquired by the servant, is acquired for the master. 15 Bin. Ab.
327.
Quicquid plantatur solo, solo cedit. Whatever is affixed to the
soil belongs to it. Went. Off. Ex. 145.
Quicquid plantatur solo, solo cedit. Whatever is affixed to the
soil or the realty, thereby becomes a parcel. See Amb: 113; 3
East, 51; and article Fixtures.
Qnicquid est contra normam recti est injuria. Whatever is
against the rule of right, is a wrong. 3 Buls. 313.
Quicquid in excessu actum est, lege prohibitur. Whatever is
done in excess is prohibited by law. 2 Co. Inst. 107.
Quicquid judicis auctoritati subjictur, novitati nonsubjiclur.
Whatever is subject to the authority of a judge, is not subject
to novelty. 4 Co. Inst 66.
Quicquid solvitur, solvitur secundum modum solventis. Whatever
is paid, is paid according to the manner of the payor. 2 Vern.
606. See Appropriation.
Quilibet potest renunciare juri pro se inducto. Any one may
renounce a law introduced for his own benefit. To this rule there
are some exceptions. See 1 Bouv. Inst. n. 83.
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Qusquis est qui velit juris consultus haberi, continuet
studium, velit a quocunque doceri. Whoever wishes to be a lowyer,
let him continually study, and desire to be taught everything.
Quod ab initio non valet, in tractu temporis non convalescere.
What is not good in the beginning cannot be rendered good by
time. Merl. Rep. verbo Regle de Droit. This, though true in
general, is not universally so.
Quod ad jus naturale attinet, omnes homenes aequales sunt. All
men are equal before the natural law. Dig. 50, 17, 32.
Quod alias bonum et justum est, si per vim vel fraudem petatur,
malum et injustum efficitur. What is otherwise good and just, if
sought by force or fraud, becomes bad and unjust. 3 Co. 78.
Quod constat clare, non debet verificari. What is clearly
apparent need not be proved.
Quod constat curiae opere testium non indiget. What appears to
the court needs not the help of witnesses. 2 Inst. 662.
Quod contra legem fit, pro infecto habetur. What is done
contrary to the law, is considered as not done. 4 Co. 31. No one
can derive any advantage from such an act.
Quod contra juris rationem receptum est, non est producendum ad
consequentias. What has been admitted against the spirit of the
law, ought not to be heard. Dig. 50, 17, 141.
Quod demonstrandi causƒ additur rei satis demonstratae, frusta
fit. What is added to a thing sufficiently palpable, for the
purpose of demonstration, is vain. 10 Co. 113.
Quod dubitas, ne feceris. When you doubt, do not act.
Quod est ex necessitate nunquam introducitor, nisi quando
necessarium. What is introduced of necessity, is never introduced
except when necessary. 2 Roll. R. 512.
Quod est inconveniens, aut contra rationem non permissum est in
lege. What is inconvenient or contrary to reason, is not allowed
in law. Co. Litt. 178.
Quod est necessarium est licitum. What is necessary is lawful.
Quod factum est, cum in obscuro sit, ex affectione cujusque
capit interpretationem. Doubtful and ambigious clauses ought to
be construed according to the intentions of the parties. Dig. 50,
17, 168, 1.
Quod fieri non debet, factum valet. What ought not to be done,
when done, is v alid. 5 Co. 38.
Quod inconsulto fecimus, consultius revocemus. What is done
without consideration or reflection, upon better consideration we
should revoke or undo.
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Quod in minori valet, valebit in majori; et quod in majori non
valet, nec valebit in minori. What avails in the less, will avail
in the greater; and what will not avail in the greater, will not
avail in the less. Co. Litt. 260.
Quod in uno similium valet, valebit in altere. What avails in
one of two similar things, will avail in the other. co. Litt.
191.
Quod initio vitiosum est, non potest tractu temporis
convalescere. Time cannot render valid an act void in its origin.
Dig. 50, 17, 29.
Quod meum est sine me auferri non potest. What is mine cannot
be taken away without my consent. Jenk. Cent. 251. Sed vide
Eminent Domain.
Quod necessarie intelligitur id non deest. What is necessarily
understood is not wanting. 1 Buls. 71.
Quod necessitas cogit, defendit. What necessity forces, it
justifies. Hal. Pl. Cr. 54.
Quod non apparet non est, et non apparet judicialiter ante
judicium. What appears not does not exist, and nothing appears
judicially before judgment. 2 Co. Inst. 479.
Quod non habet principium non habet finum. What has no
beginning has no end. Co. Litt. 345.
Quod non legitur, non creditor. What is not read, is not
believed. 4 Co. 304.
Quod non valet in principalia, in accessoria seu consequentia
non valebit; et quod non valet in magis propinquo, non valebit
in magis remoto. What is not good in its principle, will not be
good as to accessories or consequences; and what is not of force
as regards things near, will not be of force as to things remote.
8 co. 78.
Quod nullius est id ratione naturali occupanti conceditur. What
belongs to no one, naturally belong to the first occupant. Inst.
2, 1, 12; 1 Bouv. Inst. n. 491.
Quod nullius esse potest, id ut alicujus fieret nulla obligatio
valet efficere. Those things which cannot be acquired as
property, cannot be the object of an agreement. Dig. 50, 17, 182.
Quod pendet, non est pro eo, quasi sit. What is in suspense is
considered as not existing. Dig. 50, 17, 169, 1.
Quod per me non possum, nec per alium. What I cannot do in
person, I cannot do by proxy. 4 Co. 24.
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Quod per recordum probatum, non debet esse negatum. What is
proved by the record, ought not to be denied.
Quod populus postremum jussit, id just ratum esto. What the
people have last enacted, let that be the established law.
Quod prius est verius est; et quod prius est tempore potius
est jure. What is first istruest; and what comes first in time,
is best in law. Co. Litt. 347.
Quod pro minore licitum est, et pro majore licitum est. What is
lawful in the less, is lawful in the greater. 8 Co. 43.
Quod quis ex culpa sua damnum sentit, non intelligitur damnum
sentire. He who suffers a damage by his own fault, has no right
to complain. Dig. 50, 17, 203.
Quod quisquis norat in hoc se exerceat. Let every one employ
himself in what he knows. 11 Co. 10.
Quod remedio destituitur ipsa re valet si culpa absit. What is
without a remedy is valid by the thing itself. Bacon's Max. Reg.
9.
Quod semel meum est amplius meum esse non potest. Co. Litt. 49;
Shep To. 212.
Quod sub certa forma concessum vel reservatum est, non trahitur
advalorem vel compensationem. That which is granted or reserved
under a certain form, is not to be drawn into a valuation.
Bacon's Max. Reg. 4.
Quod solo inaedificatur solo cedit. Whatever is built on the
soil is an accessory of the soil. Inst. 2, 1, 29; 16 Mass. 449;
2 Bouv. Inst. n. 1571.
Quod taciti intelligitur deessee non videtur. What is tacitly
understood does not appear to be wanting. 4 Co. 22.
Quod vanum et inutile est, lex non requirit. The law does not
require what is vain and useless. Co. Litt. 319.
Quotiens dubia interpretatio libertatis est, secundum
libertatem respondendum erit. Whenever there is a doubt between
liberty and slavery, the decision must be in favor of liberty.
Dig. 50, 17, 20.
Quoties in verbis nulla est ambiguitas ibi nulla expositio
contra verba fienda est. When there is no ambiguity in the words,
then no exposition contrary to the words is to be made. Co. Litt.
147.
Ratihabitiio mandato aequiparatur. Ratification is equal to a
command. Dig. 46, 3, 12, 4.
Ratio est formalis causa consueetudinis. Reason is the formal
cause of custom.
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Ratio est legis anima, mutata legis ratione mutatur et lex.
Reason is the soul of the law; the reason of the law being
changed, the law is also changed.
Ratio est radius divini luminis. Reason is a ray of divine
light. Co. Litt. 232.
Ratio et auctoritas duo clarisima mundi limina. Reason and
authority are the two brightest lights in the world. 4 Co. Inst.
320.
Ratio in jure aequitas integra. Reason in law is perfect
equity.
Ratio legis est anima legis. The reason of the law is the soul
of the law.
Ratio non clauditur loco. Reason is not confined to any place.
Ratio potest allegari deficiente lege, sed vera et legalis et
non apparens. Reason may be alleged when the law is defective,
but it must be true and legal reason, and not merely apparent. 6
Co. Litt. 191.
Re, verbis, scripto, consensu, traditione, junctura vestes,
sumere pacta solent. Compacts are accustomed to be clothed by
thing itself, by words, by writing, by consent, by delivery.
Plow. 161.
Receditur a placitis juris, potius quam injuriae et delicta
maneant impunita. Positive rules of law will be receded from,
rather than crimes and wrongs should remain unpunished. Bacon's
Max. Reg. 12. This applies only to such maxims as are called
placita juris; these will be dispensed with rather than crimes
should go unpunished, quia salus populi suprema lex, because the
public safety is the supreme law.
Recorda sunt vestigia vetustatis et veritatis. Records are
vestiges of antiquity andtruth. 2 Roll. R. 296.
Recurrendum est ad extraordinarium quando non valet ordinarium.
We must have recourse to what is extraordinary, when what is
ordinary fails.
Regula pro lege, si deficit lex. In default of the law, the
maxim rules.
REgulariter non valet pactum dare mea non alienanda. Regularly
a contract not to alienate my property is not binding. Co. Litt.
223.
Rei turpis nullum mandatum est. A mandate of an illegal thing
is void. Dig. 17, 1, 6, 3.
Reipublicae interest voluntates defunctorum effectum sortiri.
It concerns the state that the wills of the dead should have
their effect.
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Relatio est fictio juris et intenta ad unum. Reference is a
fiction of law, and intent to one thing. 3 Co. 28.
Relatio semper fiat ut valeat dispositio. Reference should
always be had in sucha manner that a disposition in a will should
avail. 6 Co. 76.
Relation never defeats collateral acts. 18 Vin. Ab. 292.
Relation shall never make good a void grant or devise of the
party. 18 Vin. Ab. 292.
Relatiorum cognito uno, cognoscitur et alterum. Of things
relating to each other, one being known, the other is known. Cro.
Jac. 539.
Remainder can depend upon no estate but what beginneth at the
same time the remainder doth.
Remainder must vest at the same instant that hte particular
estate determines.
Remainder to aperson not of a capacity to take at the time of
appointing it, is void. Plowd. 27.
Remedies ought to be reciprocal.
Remedies for rights are ever favorably extended. 18 Vin. Ab.
521.
Remisus imperanti melius paretur. A man commanding not too
strictly is best obeyed. 3 Co. Inst. 233.
Remoto impedimento, emergit actio. The impediment begin removed
the action arises. 5 Co. 76.
Rent must be reserved to him from whom the state of the land
moveth. Co. Litt. 143.
Repellitur a sacramento infamis. An infamous person is repelled
or prevented from taking an oath. Co. Litt. 158.
Reprobata pecunia liberat solventum. Money refused liberates
the debtor. 9 Co. 79. But this must be understood with a
qualification. See Tender.
Reputatio est vulgaris opinio ubi non est veritas. Reputation
is a vulgar opinion where there is no truth. 4 Co. 107. But see,
Character.
Rerum ordo confunditur, si unicuique jurisdictio non servetur.
The order of things is confounded if every one preserves not his
jurisdiction. 4 Co. Inst. Proem.
Rerum progressus ostendunt multa, quae in initio praecaveri seu
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praevideri non possunt. The progress of time shows many things,
which at the beginning could not be guarded against, or foreseen.
6 Co. 40.
Rerum suarum quilibet est moderator et arbiter. Every one is
the manager and disposer of his own. Co. Litt. 233.
Res denominator a principaliori parte. A thing is named from
its principal part. 5 Co. 47.
Res est misera ubi jus est vagam et invertum. It is a miserable
state of tings where the law is vague and uncertain. 2 Salk. 512.
Res, generalem habet significationem, quia tam corporea, quam
incorporea, cujuscunque sunt generis, naturae sive speciei,
comprehendit. The word things has a general significaiton, which
comprehends corporeal and incorporeal objects, of whatever
nature, sort or specie. 3 Co. Inst. 482; 1 Bouv. Inst. n. 415.
Res inter alios acta alteri nocere non debet. Things done
between strangers ought not to injure those who are not parties
to them. Co. Litt. 152.
Res judicata pro veritate accipitur. A thing adjudged must be
taken for truth. Co. Litt. 103; Dig. 50, 17, 207. See Res
judicata.
Res judicata facit ex albo nigrum, ex nigro album, ex curvo
rectum, ex recto curvum. A thing adjudged makes what was white,
black; what was black, white; what was crooked straight; what
was straight, crooked. 1 Bouv. Inst. n. 840.
Res per pecuniam aestimatur, et non pecunia per res. The value
of a thing is estimated by its worth in money, and the value of
money is not estimated by reference to one thing. 9 Co. 76; 1
Bouv. Inst. n. 922.
Res perit domino suo. The destruction of the thing is the loss
of its owner. 2 Bouv. Inst. n. 1456, 1466.
Reservatio non debet esse de proficuis ipsis quia ea
conceduntur, sed de redditu nova extra proficua. A reservation
ought not to be ofthe profits themselves, because they are
granted, but from the new rent out of the profits. Co. Litt. 142.
Resignatio est juris porprii spontanea refutatio. Resignation
is the spontaneous relinquishment of one's own right. Godb. 284.
Respondeat superior. Let the principal answer. 4 Co. Inst. 114;
2 Bouv. Inst. n. 1337; 4 Bouv. Inst. n. 3586.
Responsio unius non omnino auditur. The answer of one witness
shall not be heard at all. 1 Greenl. Ev. §260. This is a maxim of
the civil law, where everything must be proved by two witnesses.
Rights never die.
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Reus laesae majestatis punitur, ut pereat unus ne pereant
omnes. A traitor is punished, that by the death of one, all may
not perish. 4 Co. 124.
Sacramentum habet in se tres comites, varitatem, justitiam et
judicium; veritas habenda est in jurato; justitia et justicium
in judice. An oath has in it three component parts - truth,
justice and judgment; truth in the party swearing; justice and
judgment in the judge administering the oath. 3 Co. Inst. 160.
Sacramentum si fatuum fuerit, licet falsum, tamen non committit
perjurium. A foolish oath, though false, makes not perjury. 2 Co.
Inst. 167.
Saepe viatorim nova non vetus orbita fallit. Often ti is the
new road, not the old one, which deceives the traveller. 4 Co.
Inst. 34.
Saepenumero uvb proprietas verboem attenditur, sensus veritatis
amittitur. Frequently where the propriety of words is attended
to, the meaning of truth is lost. 7 Co. 27.
Salus populi est suprema lex. The safety of the people is the
supreme law. Bacon's Max. in Reg. 12; Broom's Max. 1.
Salus ube multi consiliarii. In many counsellors there is
safety. 4 Co. Inst. 1.
Sapiens incipit a fine, et quod primum est in intentione,
ultimum est in executione. A wise man begins with the last, and
what is first in intention is last in execution. 10 Co. 25.
Sapiens omnia agit cum consilio. A wise man does everything
advisedly. 4 Co. Inst. 4.
Sapientia legis nummario pretio non est aestemanda. The wisdom
of law cannot be valued by money.
Sapientis judicis est cogitare tantum sibi esse permissum,
quantum commissum et creditum. A wise man should consdier as much
what he premises as what he commits and believes. 4 Co. Inst.
193.
Satisfaction should be made to thatfund which has sustained the
loss. 4 Bouv. Inst. n. 3731.
Satius est petere fontes quam sectari rivulos. It is better to
search the fountain than to cut rivulets. 10 Co. 118. It is
better to drink at the fountain than to sip in the streams.
Scientia sciolorum est mixta ignorantia. The knowledge of
smatterers is mixed ignorance. 8 Co. 159.
Scientia et volunti non fit injuria. A wrong is not done to one
who knows and wills it.
Scientia utrimque per pares contrahentes facit. Equal knowledge
on both sides makes the contracting parties equal.
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Scire leges, non hoc est verba eorum tenere, sed vim et
potestatem. To know the laws, is not to observe their mere words,
but their force and power. Dig. 1, 3, 17.
Scire proprie est, rem ratione et per causam cognoscere. To
know properly is to know the reason and cause of a thing. Co.
Litt. 183.
Scire debes cum quo contrahis. You ought to know with whom you
deal.
Scribere est agere. To write is to act. 2 Roll. R. 89.
Scriptae obligationes scriptis tolluntur, et nude consensus
obligatio, contrario consensu dissolvitur. Written obligations
are dissolved by writing, and obligations of naked assent by
similar naked assent.
Secundum naturam est, commoda cujusque rei eum sequi, quem
sequentur incommoda. It is natural that he who bears the charge
of a thing, should receive the profits. Dig. 50, 17, 10.
Securius expediuntur negotia commissa pluribus, et plus vident
oculi quam oculus. Business entrusted to several sppeds best, and
several eyes see more than one eye. 4 Co. 46.
Semel malus semper praesumitur esse malus in eodem genere.
Whatever is once bad, is presumed to be so always in the same
degree. Cro. Car. 317.
Semper ita fiat relatio ut valeat dispositio. Let the reference
always be so made that the disposition may avail. 6 Co. 76.
Semper necessitas probandi incumbit qui agit. The claimant is
always bound to prove: the burden of proof lies on him.
Semper praesumitur pro legitimatione puerorem, et filiatio non
potest probari. Children are alwasy presumed to be legitimate,
for filiation cannot be proved. Co. Litt. 126. See 1 Bouv. Inst.
n. 303.
Semper praesumitur pro sententiƒ. Presumption is always in
favor of the sentence. 3 Buls. 43.
Semper specialia generalibus insunt. Special clauses are always
comprised in general ones. Dig. 50, 17, 147.
Sensus verborum est anima legis. The meaning of words is the
spirit of the law. 5 Co. 2.
Sensus verborum ex causa dicendi accipiendus est, et sermones
semper accipiendi sunt secundum subjectam materiam. The sense of
words is to be taken from the occasion of speakign them, and
discourses are always to be interpreted according to the
subject-mater. 4 Co. 14.
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Sententia facit jus, et legis interpretatio legis vim obtinet.
The sentence gives the right, and the interpretation has the
force of law.
Sententia interlocutoria revocari potest, difinitiva non
potest. An interlocutory sentence or order may be revoked, but
not a final.
Sententia non fertur de rebus non liquidis. Sentence is not
given upon a thing which is not clear.
Sequi debet potentia justitiam, non praecedere. Power should
follow justice, not preced it. 2 Co. Inst. 454.
Sermo index animi. Speech is an index of the mind. 5 Co. 118.
Sermo relatus ad personam, intelligi debet de conditione
personae. A speech relating to the person is to be understood as
relating to hiscondition. 4 Co. 16.
Si a jure discedas vagus eris, et erunt omnia omnibus incerta.
If you depart from the law, you will wander without a guide, and
everything will be in a state of uncertainty to every one. Co.
Litt. 227.
Si assuetis mederi possis nova non sunt tentanda. If you can be
relieved by accustomed remedies, new ones should not be tried. 10
Co. 142.
Si judicas, cognasce. If you judge, understand.
Si meliores sunt quos ducit amor, plures sunt quos corrigit
timer. If many are better led by love, more are corrected by
fear. Co. Litt. 392.
Si nulla sit conjectura quae ducat alio, verba intelligenda
sunt ex proprietate, non grammatica sed populari ex usu. if there
be no conjecture which leads to a different result, words are to
be understood, according to the proper meaning, not in a
grammatical, but in a popular and ordinary sense. 2 Kent, Com.
555.
Si quis custos fraudem pupillo fecerit, a tutela removendus
est. If a guardian behave fraudently to his ward, he shall be
removed from the guardianship. Jenk. Cent. 39.
Si quis praegnantum uxorem reliquit, non videtur sine liberis
decessisse. If a man dies, leaving his wife pregnant, he shall
not be considered as having died childless.
Si suggestio non sit vera, literae patentes vacuae sunt. If the
suggestion of a patent is false, the patent itself is void. 10
Co. 113.
Si quid universitate debetur singulis non debetur, nec quod
debet, universitas singuli debent. If anything is due to a
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corporation, it is not due to the individual members of it, nor
do the members individually owe what the corporation owes. Dig.
3, 4, 7.
Sic interpretandum est ut verba accipiantur cum effectu. Such
an interpretation is to be made, that the words may have an
effect.
Sic utere tuo ut alienum non laedas. So use your own as not to
injure another's property. 1 Bl. Com. 306; Broom's max. 160; 4
McCord, 472; 2 Bouv. Inst. n. 2379.
Sicut natura nil facit per saltum, ita nec lex. AS nature does
nothing by a bound or leap, so neither does the law. Co. Litt.
238.
Silent leges inter arma. laws are silent amidst arms. 4 Co.
Inst. 70.
Simplicitas est legibus amica. Simplicity is favorable to the
law. 4 Co. 8.
Sine possessione usucapio procedere non potest. There can be no
prescription without possession.
Solemnitas juris sunt observandae. The solemnities of law are
to be observed. Jenk. Cent. 13.
Solo cedit quod solo implantatur. What is planted in the soil
belongs to the soil. inst. 2, 1, 29. See 1 Mackeld. civ. Law,
§268; 2 Bouv. Inst. n. 1571.
Solo cedit quodquod solo implantatur. What is planted in the
soil belongs o the soil. Inst. 2, 1, 32; 2 Bouv. Inst. n. 1572.
Solus Deus haeredem facit. God alone makes the heir.
Solutio pretii, emptiones loco habetur. The payment of the
price stands in the place of a sale.
Spes est vigilantis somnium. Hope is the dream of the vigilant.
4 Co. Inst. 203.
Spes impunitatis continuum affectum tribuit delinquendi. The
hope of impunity holds out a continual temptation to crime. 3 Co.
Inst. 236.
Spoliatus debet ante omnia restitui. Spoil ought to be restored
before anything else. 2 Co. Inst. 714.
Spondet peritiam artis. He promises to use th skill of his art.
Poth. Louage, n. 425; Jones, Bailm. 22, 53, 62, 97, 120; Domat,
liv. 1, t. 4, s. 8, n. 1; 1 Story Bailm. §431; 1 Bell's Com.
459, 5th ed.; 1 Bouv. Inst. n. 1004.
Stabit praesumptio donec probetur in contrarium. A presumption
will stand good until the contrary is proved. Hob. 297.
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Statuta pro publico commodo late interpretantur. Statutes made
for the public good ought to be liberally construed. Jenk. Cent.
21.
Statutum affirmativum non derogat communi legi. An affirmative
stature does not take from the common law. Jenk. Cent. 24.
Statutum generaliter est intelligendum quaudo verva statuti
sunt specialia, ratio autem generalis. When the words of a
statute are special, but the reason of it general, it is to be
understood generally. 10 Co. 101.
Statutum speciale statuto speciali non derogat. One special
statute does not take away from another special statute. Jenk.
Cent. 199.
Sublata causa tollitur effectus. Remove the cause and the
effect will cease. 2 Bl. Com. 203.
Sublata veneratione magistraiuum, respublica ruit. The
commonwealth perishes, if respect for magistrates be taken away.
Sublato fundamento cadit opus. Remove the foundation, the
structure or work fall.
Sublato principali tollitur adjunctum. If the principal be
taken away, the adjunct is also taken away. Co. Litt. 389.
Summum jus, summa injuria. The rigor or height of law, is the
height of wrong. Hob. 125; 1 Chan. Rep. 4.
Superflua non nocent. Superfluities do no injury.
Surplusagium non nocet. Surplusage does noharm. 3Bouv. Inst. n.
2949.
Tacita quaedam habentur pro expressis. Things silent are
sometimes considered as expressed. 8 Co. 40.
Talis interpretatio semper fienda est, ut evitetur absurdum, et
inconveniens, et ne judicium sit illusorium. Interpretation is
always to be made in such a manner, that what is absurd and
inconvenient is to be avoided, so that the judgment be not
nugatory. 1 Co. 52.
Talis non est eadem, nam nullum simile est idem. What is like
is not the same, for nothing similar is the same. 4 Co. 18.
Tantum bona valent, quantum vendi possunt. Things are worth
what they will sell for. 3 Co. Inst. 305.
Terminus annorum certus debet esse et determinatus. A term of
years ought to be certain and determinate. Co. Litt. 45.
Terra transit cum onere. Land passses with the incumbrances.
Co. Litt. 45.
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Testamenta latissimam interpretationem habere debent. Wills
ought to have the broadest interpretation.
Testamentum omne morte consumatum. Every will is completed by
death. Co. Litt. 232.
Testatoris ultima voluntas est perimplenda secundum veram
intentionem suam. The last will of a testator is to be fulfilled
according to his real intention. Co. Litt. 232.
Testibus deponentibus in pari numero dignioribus est credendum.
When the number of witnesses is equal on both sides, the more
worthy are to be believed. 4 Co. Inst. 279.
Testis de visu praeponderat aliis. An eye witness outweighs
others. 4 Co. Inst. 470.
Testis nemo in suƒ causƒ esse potest. No one can be a witness
in his own cause.
Testis oculatus unus plus valet quam auriti decem. One eye
witness is worth ten ear witnesses. See 3 Bouv. Inst. n. 3154.
Timores vani sunt aestimandi qui non cadunt in constantem
virum. Fears, which have no fixed persons for their object, are
vain. 7 Co. 17.
That which I may defeat by my entry, I make good by my
confirmation. Co. Litt. 300.
The fund which has received the benefit should make the
satisfaction. 4 Bouv. Inst. n. 3730.
Things shall not be void which may possibly be good.
Trusts survive.
Totum prefertur uni cuique parte. The whole is preferable to
any single part. 3 Co. 41.
Tout ce que la loi ne defend pas est permis. Everything is
permitted, which is not forbidden by law.
Tonte exception non surveill‚e tend … prendre la place du
principe. Every exception not watched tends to assume the place
of the principle.
Tractent fabrilia fabri. Let smiths perform the work of smiths.
3 Co. Epist.
Traditio loqui facit chartam. Delivery makes the deed speak. 5
Co. 1.
Transgressione multiplicata, crescat paena inflictio. When
transgression is multiplied, let the infliction of punishment be
increased. 2 Co. Inst. 479.
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Triatio ibi semper debet fieri, ubi juratores meliorem possunt
habere notitiam. Trial ought always to be had where the jury have
the best knowledge. 7 Co. 1.
Trupis est pars quae non convenit cum suo toto. That part is
bad which accords not with the whole. Plow. 161.
Tuta est custodia quae sibimet creditur. That guardianship is
secure which trusts to itself alone.
Tutius erratur ex parte mittioro. It is safer to err on the
side of mercy. 3 inst. 220.
Ubi aliquid impeditur propter unum, eo remoto, tollitur
impedimentum. When anything is impeded by one single cause, if
that be removed the impediment is removed. 7 Co. 77.
Ubi cessat remedium ordinarium ibi decurritur ad
extraordinarium. When a common remedy ceases to be of service,
recoruse must be had to an extraordinary one. 4 Co. 93.
Ubi culpa est ibi paena subesse debet. Where there is
culpability, there punishment ought to be.
Ubi eadem ratio, ibi idem lex. Where there is the same reason,
there is the same law. 7 co. 18.
Ubi damna dantur, victus victori in expensis condemnari debet.
Where damages are given, the losing party should pay the costs of
the victor. 2 Inst. 289.
Ubi factum nullum ibi sortia nulla. Where there is no deed
committed, there can be no consequence. 4 Co. 43.
Ubi jus, ibi remedium. Where there is a right, there is a
remedy. 1 T. R. 512; Co. Litt. 197, b; 3 Bouv. Inst. n. 2411;
4 Bouv. Inst. n. 3726.
Ubi jus incertum, ibi jus nullum. Where the law is uncertain,
there is no law.
Ubi lex aliquem cogit ostendere causam, necesse est quod causa
sit justa et letitima. Where the law compels a man to show cause,
the cause ought to be just and legal. 2 Co. Inst. 269.
Ubi lex est specialis, et ratio ejus generalis, generaliter
accipienda est. Where the law is special and the reason of it is
general, it ought to be taken as being general. 2 Co. Inst. 43.
Ubi lex non distinguit, nec nos distinguere debemus. Where the
law does not distinguish, we ought not to distinguish. 7 Co. 5.
Ubi major pars est, ibi totum. Where is the greater part, there
is the whole. Moor, 578.
Ubi non adest norma legis, omnia quasi pro suspectis habenda
sunt. When the law fails to serve as a rule, almost everything
ought to be suspected. Bacon, De Aug. Sci. Aph. 25.
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Ubi non est condendi auctoritas, ibi non est parendi
necessitas. Where there is no authority to enforce, there is no
authority to obey. Dav. 69.
Ubi non est directa lex, standum est arbitrio judicis, vel
procedendum ad similia. Where there is no direct law, the opinion
of the judges ought to be taken, or reference made to similar
cases.
Ubi non est lex, non est transgressio quoad mundum. Where there
is no law there is no transgression, as it regards the world.
ubi non est principalis non potest esse accessorius. Where
there is no principal there is no accessory. 4 co. 43.
ubi nullum matrimonium ibi nullum dos. Where there is no
marriage there is no dower. Co. Litt. 32.
Ubi periculum, ibi et lucrum collocatur. He at whose risk a
thing is, should receive the profits arising from it.
Ubi quid generaliter conceditur, in est haec exceptio, si non
aliquid sit contra jus fasque. Where a thing is concealed
generally, this exception arises, that there shall be nothing
contrary to law and right. 10 Co. 78.
ubi quis delinquit ibi punietur. Let a man be punished when he
commits the offence. 6 Co. 47.
Ubicunque est injuria, ibi damnum sequitur. Whereever there is
a wrong, there damages follow. 10 Co. 116.
Ultima voluntas testatoris est perimplenda secundum veram
intentionem suam. The last will of a testator is to be fulfilled
according to his true intention. Co. Litt. 322.
Ultra posse non est esse, et vice versa. What is beyond
possibility cannot exist, and the reverse, what cannot exist is
not possible.
Una persona vix potest supplere vices duorum. One person can
scarcely supply the place of two. 4 co. 118.
Universalia sunt notoria singularibus. Things universal are
better known than things particular. 2 Roll. R. 294.
Universitas vel corporatio non dicitur aliquid facere nisi id
sit collegialiter deliberatum, etiamsi major pars id faciat. An
university or corporation is not said to do anything unless it be
deliberated upon collegiately, although the majority should do
it. Dav. 48.
Uno absurdo dato, infinita sequuntur. One absurdity begin
allowed, an infinity follow. 1 co. 102.
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Unumquodque eodem modo quo colligatum est dissolvitur. In the
same manner in which a thing is bound, it is loosened. 2 Roll.
Rep. 39.
Unumquodque est id quod est principalius in ipso. That which is
the principal part of a thing is the thing itself. Hob. 123.
Unumquodque dissolvatur eo modo quo colligatur. Everything is
dissolved by the same mode in which it is bound together.
Usury is odious in law.
Ut paena ad paucos, metus ad omnes perveniat. That by the
punishment of a few, the fear of it may affect all. 4 Inst. 63.
Ut res magis valeat quam pereat. That the thing may rather have
effect than be destroyed.
Utile per inutile non vitiatur. What is useful is not vitiated
by the useless. 3 Bouv. Inst. n. 2949, 3293; 2 Wheat. 221; 2 S.
& R. 298; 17 S. & R. 297; 6 Mass. 303.
Valeat quantum valere potest. It shall have effect as far as it
can have effect.
Vana est illa potentia quae numquam venit in actum. Vain is
that power which is never brought into action. 2 Co. 51.
Vani timores sunt aestimandi, qui non cadunt in constantem
virum. Vain are those fears which affect not a valiant man. 7 Co.
27.
Vendens eandem rem doubus falsarius est. It is fraudulent to
sell the same thing twice. Jenk. Cent. 107. See Stalionat.
Veniae facilitas incentivum est delinquendi. Facility of pardon
is an incentive to crime. 3 inst. 236.
Vreba aliquid operari debent, verba cum effectu sunt
accipienda. Words are to be taken so as to have effect. Bacon's
Max. Reg. 3, p. 47. See 1 Duer. on ins. 210, 211, 216.
Verba aequivoca ac in dubio sensu posita, intelliguntur dignori
et potentiori sensu. Equivocal words and those in a doubtful
sense are to be taken in their best and most effective sense. 6
Co. 20.
Verba currentis monetae, tempus solutionis designat. The words
current money, refer to the time of payment. Dav. 20.
Verba dicta de persona, intelligi debent de conditione
personae. Words spoken of the person are to be understood of the
condition of the person. 2 Roll. R. 72.
Verba fortius accipientur contra proferentum. Words are to be
taken most strongly against him who uses them. Bacon's Max. REg.
3; 1 Bouv. Inst. n. 661.
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Verba generalia generaliter sunt intelligenda. General words
are to be generally understood. 3 Co. Inst. 76.
Verba ganeralia restringuntur ad habilitatem rei vel personae.
General words must be confined or restrained to the nature of the
subject or the aptitude of the person. Bacon's max. Reg. 10.
Verba intentioni, non e contra, debent inservire. Words ought
to be made subservient to the intent, not contrary to it. 8 Co.
94.
Verba ita sunt intelligenda, ut res magis valeat quam pereat.
Wrods are to be so understood that the subject-matter may be
preserved rather than destroyed. Bacon's Max. in Reg. 3.
Verba nihil operandi melius est quam absurde. It is better that
words should have no operation, than to operate absurdly.
Verba posteriora propter certitudinem addita, ad priora quae
certitudine indigent, sunt referenda. Words added for the purpose
of certainty are to be referred to preceding words, in which
certainty is wanting.
Verga relata hac maximi operantur per referentiam ut in eis in
esse videntur. Words referred to other words operate chiefly by
the reference which appears to be impled towards them. Co. Litt.
359.
Veredictum, quasi dictum veritas; ut judicium quasi juris
dictum. A verdict is, as it were, the saying of the truth, in the
same manner that a judgment is the saying of the law. Co. Litt.
226.
Veritas demonstrationis tollit errorem nominis. The truth of
the demonstration removes the error of the name. Ld. Raym. 303.
See Legatee.
Veritas nihil veretur nisi abscondi. Truth fears nothing but
concealment. 9 co. 20.
Veritas nimium altercando amittitur. By too much altercation
truth is lost. Hob. 344.
Veritatem qui non libere pronunciat, proditor est veritatis. He
who does not speak the truth, is a traitor to the truth.
Vicarius non habet vicaruim. A deputy cannot appoint a deputy.
Branch's max. 38; Broom's max. 384; 2 Bouv. Inst. n. 1300.
Vigilantibus et non dormientibus serviunt leges. The laws serve
the vigilant, not those who sleep upon their rights. 2 Bouv.
Inst. n. 2327. See Laches.
Viperina est expositio quae corrodit viscera textus. That is a
viperous exposition which gnaws or eats out the bowels of the
text. 11 Co. 34.
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Vir et uxor consentur in lege una persona. Husband and wife are
considered one person in law. Co. Litt. 112.
Vis legibus est inimica. Force is inimical to the laws. 3 Co.
inst. 176.
Vitium clerici nocere non debet. Clerical errors ought not to
hurt.
Voluit sed non dixit. he willed but did not say.
Voluntas testatoris ambulatoria est usque ad mortem. The will
of a testator is ambulatory until his death; that is, he may
change it at any time. See 1 Bouv. inst. n. 83.
Voluntas in delictis non exitus spectatur. In offences, the
will and not the consequences are to be looked to. 2 Co. inst.
27.
Voluntas reputabatur pro facto. The will is to be taken for the
deed. 3 Co. Inst. 69.
Volunti non fit injuria. He who consents cannot receive an
injury. 2 Bouv. Inst. n. 2279, 2327; 4 T. R. 657; Shelf. on
mar. & Div. 449.
What a man cannot transfer, he cannot bind by articles.
When the common law and statute law concur, the common law is
to be preferred. 4 Co. 71.
When many join in one act, the law says it is the act of him
who could best do it; and things should be done by him who has
the best skill. Noy's Max. h.t.
When the law presumes the affirmative, the negative is to be
proved. 1 Roll. R. 83; 3 Bouv. Inst. n. 3063, 3090.
When no time is limited, the law appoints the most convenient.
When the law gives anything, it gives a remedy for the same.
When the foundation fails, all fails.
Where two r ights concur, the more ancient shall be preferred.
Where there is equal equity, the law must prevail. 4 Bouv.
Inst. n. 3727.
Vide, generally, Dig. 50, 17; 1 Ayl. Pand. b. 1, t. 6; Merl.
R‚pert. Regles de Droit; Pow. Mint. Index, h. t.; Dane's Ab.
Index, h. t.; Wooddes. Lect. lxxi. note; and collections of
Bacon, Noy, Francis, Branch and Heath; Duval, Le Droit dans ses
Maximes.
MAY To be permited; to be at liberty; to have the power.
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2. Whenever a statute directs the doing of a thing for the sake
of justice or the public good, the word may is the same as shall.
For example, the 23 H. VI. says, the sheriff may take bail, that
is construed he shall, for he is compellable to do so. Carth. 293
Salk. 609; Skin. 370.
3. The words shall and may in general acts of the legislature
or in private constitutions, are to be construed imperatively;
3. Atk. 166; but the construction of those words in a deed
depends on circumstances. 3 Atk. 282. See 1 Vern. 152, case. 142
9 Porter, R. 390.
MAYHEM, crimes. The act of unlawfully and violently depriving
another of the use of such of his members as may render him less
able in fighting either to defend himself or annoy his adversary;
and therefore the cutting or disabling, or weakening a man's hand
or finger, or striking out his eye or foretooth, or depriving him
of those parts the loss of which abates his courage, are held to
be mayhems. But cutting off the ear or nose or the like, are not
held to be mayhems at common law. 4 Bl. Com. 205.
2. These and other severe personal injuries are punished by the
Coventry act, (q. v.) which has been re-enacted in several of the
states; Ryan's Med. Jurispr. 191, Philad. ed. 1832; and by
congress. Vide act of April 30, 1790, s. 13, 1 Story's Laws U. S.
85; act of March 3, 1825, s. 22, 3 Story's L. U. S. 2006.
MAYHEMAVIT. Maimed. This is a term of art which cannot be
supplied in pleadings by any other word; as, mutilavit,
truncavit, &c. 3 Tho. Co. Litt. 548.
MAYOR, officer. The chief or executive magistrate of a city who
bears this title.
2. It is generally his duty to cause the laws of the city to be
enforeed, and to superintend inferior officers, such as
constables, watchmen and the like. But the power and authority
which mayors possess being given to them by local regulations,
vary in different places.
MAYOR'S COURT. The name of a court usually established in
cities, composed of a mayor, recorder and aldermen, generally
having jurisdiction of offences committed within the city, and of
other matters specially given them by the statute.
MEASURE. That which is used as a rule to determine a quantity.
A certain quantity of something, taken for a unit, and which
expresses a relation with other quantities of the same thing.
2. The constitution of the United States gives power to
congress to " fix the standard of weights and measures." Art. 1,
B. 8. Hitherto this has remained as a dormant power, though
frequently brought before the attention of congress.
3. The states, it seems, possess the power to legislate on this
subject, or, at least, the existing standards at the adoption of
the constitution remain in full force. 3 Sto. Const. 21; Rawle
on the Const. 102.
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4. By a resolution of congress, of the 14th of June, 1836, the
secretary of the treasury is directed to cause a complete set of
all weights and measures adopted as standards, and now either
made or in the progress of manufacture, for the use of the
several custom-houses and for other purposes, to be delivered to
the governor of each state in the Union, or to such person as he
may appoint, for the use of the states respectively, to the end
that an uniform standard of weights and measures may be
established throughout the United States.
5. Measures are either, 1. Of length. 2. Of surface. 3. Of
solidity or capacity. 4. Of force or gravity, or what is commonly
called weight. (q. v.) 5. Of angles. 6. Of time. The measures now
used in the United States, are the same as those of England, and
are as follows
1. MEASURES OF LENGTH.
12 inches = l foot
3 feet = l yard
51/2 yards = l rod or pole
40 poles = 1 furlong
8 furlongs = l mile
69 1/15 miles = l degree of a great circle
of the earth.
An inch is the smallest lineal measure to which a name is given,
but subdivisions are used for many purposes. Among mechanics, the
inch is commonly divided into eighths. By the officers of the
revenue and by scientific persons, it is divided into tenths,
hundredths, &c. Formerly it was made to consist of twelve parts
called lines, but these have fallen into disuse.
Particular measures of length.
1st. Used for measuring cloth of all kinds.
1 nail = 2 1/4 inches
1 quarter = 4 inches
1 yard = 4 quarters
1 ell = 5 quarters.
2d. used for the height of horses.
1 hand = 4 inches.
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3d. Used in measuring depths.
1 fathom = 6 feet.
4th. Used in land measure, to facilitate computation of the
contents, 10 square chains being equal to an acre.
1 link = 7 92/100 inches
1 chain = 100 links.
6.-2. MEASURES OF SURFACE.
144 square inches = l square foot
9 square feet = l square yard
30 1/4 square yards = l perch or rod
40 perches = l rood
4 roods or 160 perches = l acre
640 acres--l square mile.
7. - 3. MEASURES OF SOLTDITY AND CAPACITY.
1st. Measures of solidity.
1728 cubic inches = l cubic foot
27 cubic feet = l cubic yard.
2d. Measures of capacity for all liquids, and for all goods,
not liquid, except such as are comprised in the next division.
4 gills = l pint = 34 2/3 cubic inches nearly.
2 pints = l quart = 691/2 " "
4 quarts = 1 gallon = 277 1/4 " "
2 gallons = l peck = 554 1/2 " "
8 gallons= 1 bushel = 2218 1/2 " "
8 bushels = l quarter = 10 1/4 cubic feet "
5 quarters = l load = 51 1/2 " "
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The last four denominations are used only for goods, not
liquids. For liquids, several denominations have heretofore been
adopted, namely, for beer, the firkin of 9 gallons, the kilderkin
of 18 , the barrel of 36, the hogshead of 54; and the butt of
108 gallons. For wine or spirits there are the anker, runlet,
tierce, hogshead, puncheon, pipe, butt, and tun; these are,
however, rather the names of the casks, in which the commodities
are imported, than as express any definite number of gallons. It
is the practice to gauge all such vessels, and to charge them
according to their actual contents.
3d. Measures of capacity, for coal, lime, potatoes, fruit, and
other commodities, sold by heaped measure.
2 gallons = 1 peck-704 cubic in. nearly.
8 gallons = 1 bushel=28151/2 " "
3 bushels = 1 sack = 41 cubic feet "
12 sacks=l chaldron = 58 2/3 " "
8.-4. MEASURES OF WEIGHTS. See art. Weights.
9.-5., ANGULAR MEASURE; or, DIVISION OF THE CIRCLE.
60 seconds = l minute
60 minutes = l degree
30 degrees = 1 sign
90 degrees = 1 quadrant
360 degrees, or 12 signs = 1 circumference.
Formerly the subdivisions were carried on by sities; thus, the
second was divided into 60 thirds, the third into sixty fourths,
&c. At present, the second is more generally divided decimally
into tens, hundreds, &c. The degree is frequently so divided.
or 10. - 6. MEASURE OF TIME.
60 seconds = 1 minute
60 minutes = 1 hour
24 hours = l day
7 days = 1 week
28 days, or 4 weeks = 1 lunar month
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28, 29, 30, or 31 days = 1 calendar month
12 calendar months = 1 year
365 days = 1 common year
366 day = l leap year.
The second of time is subdivided like that of angular measure.
FRENCH MEASURES.
11. As the French system of weights and measures is the most
scientific plan known, and as the commercial connexions of the
United States with France are daily increasing, it has been
thought proper here to give a short account of that system.
12. The fundamental, invariable, and standard measure, by which
all weights and measures are formed, is called the metre, a word
derived from the Greek , which signifies measure. It is a lineal
measure, and is equal to 3 feet, 0 inches, 44/1000, Paris
measure, or 3 feet, 3 inches, 370/1000 English. This unit is
divided into ten parts; each tenth, into ten hundreths; each
hundreth, into ten thousandths, &c. These divisions, as well as
those of all other mea- sures, are infinite. As the standard is
to be invariable, something has been sought, from which to make
it, which is not variable or subject to any change. The
fundamental base of the metre is the quarter of the terrestrial
meridian, or the distance from the pole to the equator, which has
been divided into ten millions of equal parts, one of which is
the length of the metre. All the other measures are formed from
the metre, as follows:
2. MEASURE OF CAPACITY.
13. The litre. This is the decimetre; or one-tenth part of the
cubic metre; that is, if a vase is made of a cubic form, of a
decimetre every way, it would be of the capacity of a litre. This
is divided by tenths, as the metre. The measures which amount. to
more than a single, litre, are counted by tens hundreds,
thousands, &c., of litres.
3. MEASURES OF WEIGHTS.
14. The gramme. This is the weight of a cubic centimetre of
distilled water, at the temperature of zero; that is, if a vase
be made of a cubic form, of a hundredth part of a metre every
way, and it be filled with distilled water, the weight of that
water will be that of the gramme.
4. MEASURES OF SURFACES.
15. The arc, used in surveying. This is a square, the sides of
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which are of the length of ten metres, or what is equal to one
hundred square metres. Its divisions are the same as in the
preceding measures.
5. MEASURES OF SOLIDITY.
16. The stere, used in measuring firewood. It is a cubic metre.
Its subdivisions are similar to the preceding. The term is used
only for measuring fire-wood. For the measure of other things,
the term cube metre, or cubic metre is used, or the tenth,
hundredth, &c., of such a cube.
6. MONEY.
17. The franc. It weighs five grammes. it is made of
nine-tenths of silver, and one-tenth of copper. Its tenth part is
called a decime, and its hundredth part a centime.
18. One measure being thus made the standard of all the rest,
they must be all equally invariable; but, in order to make this
certainty perfectly sure, the following precautions have been
adopted. As the temperature was found to have an influence on
bodies, the term zero, or melting ice, has been selected in
making the models or standard of the metre. Distilled water has
been chosen to make the standard of the gramme, as being purer,
and less encumbered with foreign matter than common water. The
temperature having also an influence on a determinate volume of
water, that with which the experiments were made, was of the
temperature of zero, or melting ice. The air, more or less
charged with humidity, causes the weight of bodies to vary, the
models which represent the weight of the gramme, have, therefore,
been taken in a vacuum.
19. It has already been stated, that the divisions of these
measures are all uniform, namely by tens, or decimal fractions,
they may therefore be written as such. Instead of writing,
1 metre and 1 tenth of a metre, we may write, 1 m. 1.
2 metre and 8 tenths, 2 m. 8.
10 metre and 4 hundredths, 10 m. 04.
7 litres, 1 tenth, and 2 hundredths, 7 lit. 12, &c.
20. Names have been given to, each of these divisions of the
principal unit but these names always indicate the value of the
fraction, and the unit from which it is derived. To the name of
the unit have been prefixed the particles deci, for tenth, centi,
for hundredth, and milli, for thousandth. They are thus
expressed, a decimetre, a decilitre, a decigramme, a decistere, a
deciare, a centimetre, a centilitre, a centigramme, &c. The
facility with which the divisions of the unit are reduced to the
same expression, is very apparent; this cannot be done with any
other kind of measures.
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21. As it may sometimes be necessary to express great
quantities of units, collections have been made of them in tens,
hundreds, thousands, tens of thousands, &c., to which names,
derived from the Greek, have been given; namely, deca, for tens
hecto, for hundreds; kilo, for thousands and myria, for tens of
thousands; they are thus expressed; a decametre, a decalitre,
&c.; a hectometre, a hectogramme, &c.; a kilometre, a
kilogramme, &c.
22. The following table will facilitate the reduction of these
weights and measures into our own.
The Metre, is 3.28 feet, or 39.871 in.
Are, is 1076.441 square feet.
Litre, is 61.028 cubic inch
Stere, is 35.317 cubic feet.
Gramme, is 15.4441 grains troy, or 5.6481 drams, averdupois.
MEASURE OF DAMAGES, prac. Those principles or rules of law
which control a jury in adjusting or proportioning the damages,
in certain cases. 1 Bouv. Inst. n. 636.
MEAN. This word is sometimes used for mesne. (q. v.)
MEASON-DUE. A corruption of Maison de Dieu. (q. v.)
MEDIATE, POWERS. Those incident to primary powers, given by a
principal to Iiis agent. For example, the general authority given
to collect, receive and pay debts due by or to the principal is a
primary power. In order to accomplish this it is frequently
required to settle accounts, adjust disputed claims, resist those
which are unjust, and answer and defend suits; these subordinate
powers are sometimes called mediate powers. Story, Ag. §58. See
Primary powers, and 1 Camp. R. 43, note 4 Camp. R. 163; 6 S. &
R. 149.
MEDIATION. The act of some mutual friend of two contending
parties, who brings them to agree, compromise or settle their
disputes. Vattel, Droit des Gens, liv. 2, eh. 18, §328.
MEDIATOR. One who interposes between two contending parties,
with their consent, for the purpose of assisting them in settling
their differences. Sometimes this term is applied to an officer
who is appointed by a sovereign nation to promote the settlement
of disputes between two other nations. Vide Minister; Mediator.
MEDICAL JURISPRUDENCE. That science which applies the
principles and practice of the different branches of medicine to
the elucidation of doubtful questions in courts of justice. By
some authors, it is used in a more extensive sense and also
comprehends Medical Police, or those medical precepts which may
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prove useful to the legislature or the magistracy. Some authors,
instead of using the phrase medical jurisprudence, employ, to
convey the same idea, those of legal medicine, forensic medicine,
or, as the Germans have it, state medicine.
2. The best American writers on this subject are Doctors T. R.
Beck and J. B. Beck, Elements of Medical Jurisprudence; Doctor
Thomas Cooper; Doctor James S. Stringham, who was the first
individual to deliver a course of lectures on medical
jurisprudence, in this country; Doctor Charles Caldwell. Among
the British writers may be enumerated Doctor John Gordon Smith;
Doctor Male; Doctor Paris and Mr. Fonblanque, who published a
joint work; Mr. Chitty, and Dr. Ryan. The French writers are
numerous; Briand, Biessy, Esquirol, Georget, Falret, Trebuchet,
Mare, and others, have written treatises or published papers on
this subject; the learned Fodere published a work entitled "Les
Lois eclairees par les sciences physiques ou Trait‚ de M‚d‚cine
L‚gale et d'hygi‚ne publique;" the "Annale d'hygi‚ne et de
M‚d‚cine Legale," is one of the most valued works on this
subject. Among the Germans may be found Rose's Manual on Medico
Legal Dissection; Metzger's Principles of Legal Medicine, and
others. The reader is referred for a list of authors and their
works on Medical Jurisprudence, to Dupin, Profession d'Avocat,
tom. ii., p. 343, art. 1617 to 1636, bis. For a history of the
rise and progress of Medical Jurisprudence, see Traill, Med. Jur.
13.
MEDICINE CHEST. A box containing an assortment of medicines.
2. The act of congress for the government and regulation of
seamen in the merchant service, sect. 8, 1 Story's L. U. S. 106,
directs that every ship or vessel, belonging to a citizen or
citizens of the United States, of the burthen of one hundred and
fifty tons or upwards, navigated by ten or more persons in the
whole, and bound on a voyage without the limits of the United
States, shall be provided with a chest of medicines, put up by
some apothecary of known reputation, and accompanied by
directions for administering the same; and the said medicines
shall be examined by the same or some other apothecary, once, at
least, in every year, and supplied with fresh medicines in the
place of such as shall have been used or spoiled; and in default
of having such medicine chest so provided, and kept fit for use,
the master or commander of such ship or vessel shall provide and
pay for all such advice, medicine, or attendance of physicians,
as any of the crew shall stand in need of in case of sickness, at
every port or place where the ship or vessel may touch or trade
at during the voyage, without any deduction from the wages of
such sick seaman or mariner.
3. And by the act to amend the above mentioned act, approved
March 2, 1805, 2 Story's Laws U. S. 971, it is provided that all
the provisions, regulations, and penalties, which are contained
in the eighth section of the act, entitled "An act for the,
government and regulation of seamen in the merchants' service,"
so far as relates to a chest of medicines to be provided for
vessels of one hundred and fifty tons burthen and upwards, shall
be extended to all merchant vessels of the burthen of
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seventy-five tons or upwards, navigated with six persons, or
more, in the whole, and bound from the United States to any port
or ports in the West Indies.
MEDIETAS LINGUAE. Half tongue. This expression was used to
signify that a jury for the trial of a foreigner or alien for a
crime, was to be composed one half of natives and the other of
foreigners. The jury de medietate linguae is used in but a few if
any of the United States. Dane's Ab. vol. 6, c. 182, a, 4, n. 1.
Vide 2 Johns. R. 381; 1 Chit. Cr. Law, 525; Bac. Ab. Juries, E
8.
MELANCHOLIA, med. jur. A name given by the ancients to a
species of par- tial intellectual mania, now more generally known
by the name of monomania. (q. v.) It bore this name because it
was supposed to be always attended by dejection of mind and
gloomy ideas. Vide Mania.,
MELIORATIONS, Scotch law. Improvements of an estate, other than
mere repairs; betterments. (q. v.) 1 Bell's Com. 73.
MELIUS INQUIRENDUM VEL INQUIRENDO. English practice. A writ
which in certain cases issues after an imperfect inquisition
returned on a capias utlugatum in outlawry. This melius
inquirendum commands the sheriff to summon another inquest in
order that the value, &c., of lands, &c., may be better or more
cor- rectly ascertained. Its use is rare.
MEMBER. This word has various significations: 1. The limits of
the body use- ful in self-defence. Membrum est pars corporis
habens destinatum operationem in corpore. Co. Litt. 126 a. See
Limbs.
2. - 2. An individual who belongs to a firm, partnership,
company or corporation. Vide Corporation; Partnership.
3. - 3. One who belongs to a legislative body, or other branch
of the government; as, a member of the house of representatives;
a member of the court.
MEMBER OF CONGRESS. A member of the senate or house of
representatives of the United States.
2. During the session of congress they are privileged from
arrest, except for treason, felony, or breach of the peace; they
receive a compensation of eight dollars per day while in session,
besides mileage. (q. v.)
3. They are authorized to frank letters and receive them free
of postage for sixty days before, during, and for sixty days
after the session.
4. They are prohibited from entering into any contracts with
the United States, directly or indirectly, in whole or in part
for themselves and others, under the penalty of three thousand
dollars. Act of April 21, 1808, 2 Story's L. U. S. 1091. Vide
Congress; Frank.
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MEMBERS, English law. Places where a custom-house has been kept
of old time, with officers or deputies in attendance; and they
are lawful places of exportation or importation. 1 Chit. Com. L.
726.
MEMORANDUM. Literally, to be remembered. It is an informal
instrument recording some fact or agreement, so called from its
beginning, when it was made in Latin. It is sometimes commenced
with this word, though written in English; as "Memorandum, that
it is agreed," or it is headed with the words, "Be it remembered
that," &c. The term memorandum is also applied to the clause of
an instrument.
MEMORANDUM, insurance. A clause in a policy limiting the
liability of the insurer. Its usual form is as follows, namely,
"N. B. Corn, fish, salt, fruit, flour and seed, are warranted
free from average, unless general, or the ship be stranded:
sugar, tobacco, hemp, flax, hides and skins, are warranted free
from average, under five percent; and all other goods, also the
ship and freight, are warranted free from average, under three
percent unless general, or the ship be stranded." Marsh. Ins.223;
5 N. S. 293; Id. 540; 4 N. S. 640; 2 L. R. 433; Id. 435.
MEMORANDUM OR NOTE. These words are use in the 4th section of
the statute 29 Charles II., c. 3, commonly called the statute of
frauds and perjuries, which enact, that "no action shall be
brought whereby to charge any person upon any agreement made upon
consideration of marriage, or upon any contract or sale of lands,
tenements, or hereditaments, or any interest in or concerning
them, unless the agreement upon which such action shall he
brought, or some memorandum or note thereof, Shall be in
writing," &c.
2. Many cases have arisen out of the words of this part of the
statute; the general rule seems to be that the contract must be
stated with reasonable certainty in the memorandum or note so
that it can be understood from the writing itself, without having
recourse to parol proof. 3 John., R. 399; 2 Kent, Com. 402;
Cruise, Dig. t. 32, c. 3, s. 18. See 1 N. R. 252; 3 Taunt. 169;
15 East, 103; 2 M. & R. 222; 8 M. & W. 834 6 M. & W. 109.
MEMORANDUM CHECK. It is not unusual among merchants, when one
makes a tem- porary loan from another, to give the lender a check
on a bank, with the express or implied agreement that it shall be
redeemed by the maker himself, and that it shall not be presented
at the bank for payment. If passed to a third person, it will be
valid in his hands, like any other check. 11 Paige, R. 612.
MEMORIAL. A petition or representation made by one or more
individuals to a legislative or other body. When such instrument
is addressed to a court, it is called a petition.
MEMORY. Understanding; a capacity to make contracts, a will,
or to commit a crime, so far as intention is necessary.
2. Memory is sometimes employed to express the capacity of the
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understanding, and sometimes its power; when we speak of a
retentive memory, we use it in the former sense; when of a ready
memory, in the latter. Shelf. on Lun. Intr. 29, 30.
3. Memory, in another sense, is the reputation, good or bad,
which a man leaves at his death. This memory, when good, is
highly prized by the relations of the deceased, and it is
therefore libelous to throw a shade over the memory of the dead,
when the writing has a tendency to create a breach of the peace,
by inciting the friends and relations of the deceased to avenge
the insult offered to the family. 4 T. R. 126; 5 Co. R. 125;
Hawk. b. 1, c. 73, s. 1.
MEMORY, TIME OF. According to the English common law, which has
been altered by 2 & 3 Wm. IV., c. 71, the time of memory
commenced from the reign of Richard the First, A. D. 1189. 2 Bl.
Com. 31.
2. But proof of a regular usage for twenty years, not explained
or contradicted, is evidence upon which many public and private
rights are held, and sufficient for a jury in finding the
existence of an immemorial custom or prescription. 2 Saund. 175,
a, d; Peake's Ev. 336; 2 Price's R. 450; 4 Price's R. 198.
MENACE. A threat; a declaration of an intention to cause evil
to happen to another.
2. When menaces to do an injury to another have been made, the
party making them may, in general, be held to bail to keep the
peace; and, when followed by any inconvenience or loss, the
injured party has a civil action against the wrong doer. Com.
Dig. Battery, D; Vin. Ab. h. t.; Bac. Ab. Assault; Co. Litt.
161 a, 162 b, 253 b; 2 Lutw. 1428. Vide Threat.
MENIAL. This term is applied to servants who live under their
master's roof Vide stat. 2 H. IV., c. 21.
MENSA. This comprehends all goods and necessaries for
livelihood. Obsolete.
MENSA ET THORO. The phrase a mensa et thoro is applied to a
divorce which separates the husband and wife but does not
dissolve the marriage. Vide Divorce.
MERCHANDISE. By this term is understood all those things which
merchants sell either wholesale or retail, as dry goods,
hardware, groceries, drugs, &c. It is usually applied to personal
chattels only, and to those which are not required for food or
immediate support, but such as remain after having been used or
which are used only by a slow consumption. Vide Pardess. n. 8;
Dig. 13, 3, 1; Id. 19, 4, 1; Id. 50, 16, 66. 8 Pet. 277; 2
Story, R. 16, 53, 54; 6 Wend. 335.
MERCHANT. One whose business it is to buy and sell merchandise;
this applies to all persons who habitually trade in merchandise.
1 Watts & S. 469; 2 Salk. 445.
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2. In another sense, it signifies a person who owns ships, and
trades, by means of them, with foreign nations, or with the
different States of the United States; these are known by the
name of shipping merchants. Com. Dig. Merchant, A; Dyer, R. 279
b; Bac. Ab. h. t.
3. According to an old authority, there are four species of
merchants, namely, merchant adventurers, merchant dormant,
merchant travellers, and merchant residents. 2 Brownl. 99. Vide,
generally, 9 Salk. R. 445; Bac. Ab. h. t.; Com. Dig. h. t.; 1
Bl. Com. 75, 260; 1 Pard. Dr. Com. n. 78
MERCHANTMAN. A ship or vessel employed in a merchant's service.
This term is used in opposition to a ship of war.
MERCHANTS' ACCOUNTS. In the statute of limitations, 21 Jac. 1.
c. 16, there is an exception which has been copied in the acts of
the legislatures of a number of the States, that its provisions
shall not apply to such accounts as concern trade and merchandise
between merchant and merchant, their factors or servants.
2. This exception, it has been holden, applies to actions of
assumpsit as well as to actions of account. 5 Cranch, 15. But to
bring a case within the exception, there must be an account, and
that account open and current, and it must concern trade. 12 Pet.
300. See 6 Pet. 151; 5 Mason, R. 505; Bac. Ab. Limitation of
Actions, E 3; and article Limitation.
MERCY, Practice. To be in mercy, signifies to be liable to
punishment at the discretion of the judge.
MERCY, crim. law. The total or partial remission of a
punishment to which a convict is subject. When the whole
punishment is remitted, it is called a pardon; (q. v.) when only
a part of the punishment is remitted, it is frequently a
conditional pardon; or before sentence, it is called clemency or
mercy. Vide Rutherf. Inst. 224; 1 Kent, Com. 265; 3 Story,
Const. §1488.
MERE. This is the French word for mother. It is frequently used
as, in ventre sa mere, which signifies; a child unborn, or in
the womb.
MERGER. Where a greater and lesser thing meet, and the latter
loses its separate existence and sinks into the former. It is
applied to estates, rights, crimes, and torts.
MERGER, estates. When a greater estate and less coincide and
meet in one and the same person, without any intermediate estate,
the less is immediately merged, that is, sunk or drowned in the
latter; example, if there be a tenant for years, and the
reversion in fee simple descends to, or is purchased by him, the
term of years is merged in the inheritance, and no longer exists;
but they must be to one and the same person, at one and the same
time, in one and the same right. 2 BL Com. 177; 3 Mass. Rep.
172; Latch, 153; Poph. 166; 1 John. Ch. R. 417; 3 John. Ch.
R. 53; 6 Madd. Ch. R. 119.
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2. The estate in which the merger takes place, is not enlarged
by the accession of the preceding estate; and the greater, or
only subsisting estate, continues, after the merger, precisely of
the same quantity and extent of ownership, as it was before the
accession of the estate which is merged, and the lesser estate is
extinguished. Prest. on Conv. 7. As a general rule, equal estates
will not drown in each other.
3. The merger is produced, either from the meeting of an estate
of higher degree, with an estate of inferior degree; or from the
meeting of the particular estate and the immediate reversion, in
the same person. 4 Kent, Com. 98. Vide 3 Prest. on Conv. which is
devoted to this subject. Vide, generally, Bac. Ab. Leases, &c. R;
15 Vin. Ab. 361; Dane's Ab. Index, h. t.; 10 Verm. R. 293;; 8
Watts, R. 146; Co. Litt. 338 b, note 4; Hill. Ab. Index, h. t.;
Bouv. Inst; Index, h. t.; and Confusion; Consolidation; Unity
of Possession.
MERGER, crim. law. When a man commits a great crime which
includes a lesser, the latter is merged in the former.
2. Murder, when committed by blows, necessarily includes an
assault and battery; a battery, an assault; a burglary, when
accompanied with a felonious taking of personal property, a
larceny in all these, and similar cases, the lesser crime is
merged in the greater.
3. But when one offence is of the same character with the
other, there is no merger; as in the case of a conspiracy to
commit a misdemeanor, and the misdemeanor is afterwards committed
in pursuance of the conspiracy. The two crimes being of equal
degree, there can be no legal merger. 4 Wend. R. 265. Vide Civil
Remedy.
MERGER, rights. Rights are said to be merged when the same
person who is bound to pay is also entitled to receive. This is
more properly called a confusion of rights, or extinguishment.
2. When there is a confusion of rights, and the debtor and
creditor become the same person, there can be no right to put in
execution; but there is an immediate merger. 2 Ves. jr. 264.
Example: a man becomes indebted to a woman in a sum of money,
and afterwards marries her, there is immediately a confusion of
rights, and the debt is merged or extinguished.
MERGER, torts. Where a person in committing a felony also
commits a tort against a private person; in this case, the wrong
is sunk in the felony, at least, until after the felon's
conviction.
2. The old maxim that a trespass is merged in a felony, has
sometimes been supposed to mean that there is no redress by civil
action for an injury which amounts to a felony. But it is now
established that the defendant is liable to the party injured
either after his conviction; Latch, 144; Noy, 82; W. Jones,
147; Sty. 346; 1 Mod. 282; 1 Hale, P. C. 546; or acquittal.
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12 East, R. 409; 1 Tayl. R. 58; 2 Hayw. 108. If the civil
action be commenced before, the plaintiff will be nonsuited.
Yelv. 90, a, n. See Hamm. N. P. 63; Kely. 48; Cas. Tempt.
Hardw. 350; Lofft. 88; 2 T.R. 750; 3 Greenl. R. 458. Butler,
J., says, this doctrine is not extended beyond actions of
trespass or tort. 4 T. R. 333. See also 1 H. Bl. 583, 588, 594;
15 Mass. R. 78; Id. 336. Vide Civil Remedy; Injury.
3. The Revised Statutes of New York, part 3, c. 4, t. 1, s. 2,
direct that the right of action of any person injured by any
felony, shall not, in any case, be merged in such felony, or be
in any manner affected thereby. In Kentucky, Pr. Dec. 203, and
New Hampshire, 6 N. H. Rep. 454, the owner of stolen goods, may
immediately. pursue his civil remedy. See, generally, Minor, 8;
1 Stew. R. 70; 15 Mass. 336; Coxe, 115; 4 Ham. 376; 4 N.
Hanp. Rep. 239; 1 Miles, R. 212; 6 Rand. 223; 1 Const. R. 231;
2 Root, 90.
MERITS. This word is used principally in matters of defence.
2. A defence upon the merits, is one that rests upon the
justice of the cause, and not upon technical grounds only; there
is, therefore, a difference between a good defence, which may be
technical or not, and a defence on the merits. 5 B. & Ald. 703 1
Ashm. R. 4; 5 John. R. 536; Id. 360; 3 John. R. 245 Id. 449;
6 John. R. 131; 4 John. R. 486; 2 Cowen, R. 281; 7 Cowen, R.
514; 6 Wend. R. 511; 6 Cowen, R. 895.
MERTON, STATUTTE OF. A statute so called, because the
parliament or rather council, which enacted it, sat at Merton, in
Surrey. It was made the 20 Hen. III. A. D. 1236. See Barr. an the
Stat. 41.
MESCROYANT. Used in our ancient books. An unbeliever. Vide
Infidel.
MESE. An ancient word used to signify house, probably from the
French maison; it is said that by this word the buildings,
curtilage, orchards and gardens will pass. Co. Litt. 56.
MESNE. The middle between two extremes, that part between the
commencement and the end, as it relates to time.
2. Hence the profits wbich a man receives between disseisin and
recovery of lands are called mesne profits. (q. v.) Process which
is issued in a suit between the original and final process, is
called mesne process. (q . v.)
3. In England, the word mesne also applies to a dignity: those
persons who hold lordships or manors of some superior wbo is
called lord paramount, and grant the same to inferior persons,
are called mesne lords.
MESNE PROCESS. Any process issued between original and final
process; that is, between the original writ and the execution.
See Process, mesne.
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MESNE PROFITS, torts, remedies. The value of the premises,
recovered in ejectment, during the time that the lessor of the
plaintiff has been illegally kept out of the possession of his
estate by the defendant; such are properly recovered by an
action of trespass, quare clausum fregit, after a recovery in
ejectment. 11 Serg. & Rawle, 55; Bac. Ab. Ejectment, H; 3 Bl.
Com. 205.
2. As a general rule, the plaintiff is entitled to recover for
such time as be can prove the defendant to have been in
possession, provided he does not go back beyond six years, for in
that case, the defendant may plead the statute of limitations. 3
Yeates' R, 13; B. N. P. 88.
3. The value of improvements made by the defendant, may be set
off against a claim for mesne profits, but profits before the
demise laid, should be first deducted from the value of the
improvement's. 2 W. C. C. R. 165. Vide, generally, Bac. Ab.
Ejectment, H; Woodf. L. & T. ch. 14, s. 3; 2 Sell. Pr. 140;
Fonbl. Eq. Index, h. t.; Com. L & T. Index, h. t.; 2 Phil. Ev.
208; Adams on Ej. ch. 13; Dane's Ab. Index, h. t.; Pow. Mortg.
Index, h. t.; Bouv. Inst. Index, h. t.
MESNE, WRIT of. The name of an ancient writ, which lies when:
the lord para- mount distrains on the tenant paravail; the
latter shall have a writ of mesne against the lord who is mesne.
F. N. B. 316.
MESSENGER. A person appointed to perform certain duties,
generally of a ministerial character.
2. In England, a messenger appointed under the bankrupt laws,
is an officer who is authorized to execute the lawful commands of
commissioners of bankrupts.
MESSUAGE, property. This word is synonymous with
dwelling-house; and a grant of a messuage with the
appurtenances, will not only pass a house, but all the buildings
attached or belonging to it, as also its curtilage, garden and
orchard, together with the close on which the house is built. 1
Inst. 5, b.; 2 Saund. 400; Ham. N. P. 189; 4 Cruise, 321; 2
T. R. 502; 1 Tho. Co. Litt. 215, note 35; 4 Blackf. 331. But
see the cases cited in 9 B. & Cress. 681; S. C. 17 Engl. Com. L.
R. 472. This term, it is said, includes a church. 11 Co. 26; 2
Esp. N. P. 528; 1 Salk. 256; 8 B. & Cress. 25; S. C. 15 Engl.
Com. L. Rep. 151. Et vide 3 Wils. 141; 2 Bl. Rep. 726; 4 M. &
W. 567; 2 Bing. N. C. 617; 1 Saund. 6.
METHOD. The mode of operating or the means of attaining an
object.
2. It has been questioned whether the method of making a thing
can be patented. But it has been considered that a method or mode
may be the subject of a patent, because, when the object of two
patents or effects to be produced is essentially the same, they
may both be valid, if the modes of attaining the desired effect
are essentially different. Dav. Pat. Cas. 290; 2 B. & Ald. 350;
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2 H. Bl. 492; 8 T. R. 106; 4 Burr. 2397; Gods. on Pat. 85;
Perpigna, Manuel des Inventeurs, &c., c. 1, sect. 5, §1, p. 22.
METRE or METER. This word is derived from the Greek, and
signifies a measure.
2. This is the standard of French measure.
3. The fundamental base of the metre is the quarter of the
terrestrial meridian, or the distance from the pole to equator,
which has been divided into ten millions of equal parts, one of
which is of the length of the metre. The metre is equal to 3.28
feet, or 39.371 inches. Vide Measure.
MEUBLES MEUBLANS. A French term used in Louisiana, which
signifies simply household furniture. 4 N. S. 664; 3 Harr. Cond.
R. 431.
MICEL GEMOT, Eng. law. In Saxon times, the great council of the
nation bore this name, sometimes also called the witena gemot, or
assembly of wise men; in aftertimes, this assembly assumed the
name of parliament. Vide 1 Bl. Comm. 147.
MICHAELMAS TERM. Eng. law. One of the four terms of the courts;
it begins on the 2d day of November, and ends on the 25th of
November. It was formerly a movable term. St. 11 G. IV. and 1 W.
IV. 70.
MICHIGAN. One of the new, states of the United States of
America. This state was admitted into the Union by the Act, of
Congress of January 26th, 1837, Sharsw. cont. of Story's L. U. S.
2531, which enacts "that the state of Michigan shall be one and
is hereby declared to be one, of the United States of Amaerica,
and admitted into the Union on an equal footing with the original
states, in all respects whatever."
2. The first constitution of this state was adopted by a
convention of the people, begun and held at the capital in the
city of Detroit, on Monday, the eleventh day of May, 1835. This
was superseded by the present constitution, which was adopted
1850. It provides, article 3, §l; The powers of the government
shall be divided into three distinct departments; the
legislative, the executive, and the judicial; and one department
shall never exercise the powers of another, except in such cases
as are expressly provided for in this constitution.
3. - 1. Art. 4, relates to the Legislative department, and
provides that
§1. The legislative power shall be vested in a senate and house
of representatives.
4. - §6. No person holding any office under the United States
[or this state] or any county office, except notaries public,
officers of the militia and officers elected by townships, shall
be eligible to, or have a seat in either house of the
legislature, and all votes given for any such person shall be
void.
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5. - §7. Senators and representatives shall, in all cases
except treason, felony, or breach of the peace, be privileged
from arrest, nor shall they be subject to any civil process,
during the session of the legislature, nor for fifteen days next
before the commencement and after the terraination of each
session. They shall not be questioned in any other place for any
speech in either house.
6. - §8. A majority of each house shall constitute a quorum to
do business; but a smaller number may adjourn from day to day,
and may compel the attendance of absent members, in such manner
and under such penalties as each house may provide.
7. - §9. Each house shall choose its own officers, determine
the rules of its proceeding, and judge of the qualifications,
elections, and return of its own members and may, with the
concurrence of two-thirds of all the members elected, expel a
member; no member shall be expelled a second time for the same
cause, nor for any cause known to his constituents antecedent to
his election. The reason for such expulsion shall be entered upon
the journal, with the names of the members voting on the
question.
8. - §10. Each house shall keep a journal of its proceedings,
and publish the same, except such parts as may require secrecy;
the yeas and nays of the members of either house, on any
question, shall be entered on the journal at the request of
one-fifth of the members present. Any member of either house may
dissent from and protest against any act, proceeding or
resolution which he may deem injurious to any person or the
public, and have the reason of his dissent entered on the
journal.
9. -§11. In all elections by either house, or in joint
convention, the votes shall be given viva voce. All votes on
nominations to the senate shall be taken by yeas and nays, and
published with the journal of its proceedings.
10. - §12. The doors of each house shall be open, unless the
public welfare require secrecy; neither house shall, without the
consent of the other, adjourn for more than three days, nor to
any other place than where the legislature may then be in
session.
11. - 1st. In considering the house of representatives, it will
be proper to take a view of the qualifications of members; the
qualification of the electors; the number of members; the time
for wbich they are elected.
12. - 1. The representatives must be citizens of the United
States, and qualified electors in the respective counties which
they represent. Art. 4, S. 5. 2. In all elections, every white
male citizen, every white male inhabitant residing in the state
on the twenty-fourth day of June, one thousand eight hundred and
thirty-five; every white male inhabitant residing in the first
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day of January, one thousand eight hundred and fifty, who has
declared his in- tention to become a citizen of the United States
pursuant to the laws thereof six months preceding an election, or
who has resided in this state two years and six months and
declared his intention as aforesaid and every civilized male
inhabitant of Indian descent, a native of the United States, and
not a member of any tribe, shall be an elector and entitled to
vote; but no citizen or inhabitant shall be an elector or
entitled to vote at any election, unless he shall be above the
age of twenty-one years, and has resided in this state three
months and in the township or ward in which he offers to vote ten
days next preceding such election. Art. 7, §1. 3. The house of
representatives shall consist of not less than sixty-five nor
more than one hundred members. Art. 4, s. 3. 4. The election of
representatives, pursuant to the provisions of this constitution,
shall be held on the Tuesday succeeding the first Monday of
November, in the year one thousand eight hundred and fifty-two,
and on the Tuesday succeeding the first Monday of November of
every second year thereafter. Art. 4, s. 34. Representatives
shall be chosen for two years. Art. 4, s. 3.
13. - 2d. The senate will be considered in the same order. 1.
Senators must be citizens of the United States, and be qualified
electors in the district which they represent. Art. 4, s. 5. 2.
They are elected by the electors of representatives. Art. 7, s.
1. 3. The senate shall consist of thirty-two members. Art. 4, s.
2. 4. The senators shall be elected for two years, at the same
time and in the same manner as the representatives are required
to be chosen. Art. 4, section 2, 34.
14. - 2. The executive department is regulated by the fifth
article of the constitution as follows, namely:
§1. The executive power is vested in a governor, who shall hold
his office for two years; a lieutenant governor shall be chosen
for the same term.
l5. - §2 No person shall be eligible to the office of governor
or lieutenant governor, who has not been five years a citizen of
the United States, and a resident of this state two years next
preceding the election; nor shall any person be eligible to
either office who has not attained the age of thirty years.
16. - §3. The governor and lieutenant governor shall be elected
at the times and places of choosing members of the legislature.
The Person having the highest number of votes for governor and
lieutenant governor shall be elected; in case two or more
persons have an equal and the highest number of votes for
governor or lieutenant governor, the legislature shall by joint
vote choose one of such persons.
17. - §4. The governor shall be commander-in-chief of the
military and naval forces, and may call out such forces to
execute the laws, to suppress insurrections and to repel
invasions.
18. - §5. He shall transact all necessary; business with the
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officers of government; and may require information, in writing,
from the officers of the executive department, upon any subject
relating to the duties of their respective offices.
19. - §6. He shall take care that the laws be faithfully
executed.
20. - §7. He may convene the legislature on extraordinary
occasions.
21. - §8. He shall give to the legislature, and at the close of
his official term to the next legislature, information by message
of the condition of the state, and recommend such measures to
them as he shall deem expedient.
22. - §9. He may convene the legislature at some other place,
when the seat of government becomes dangerous from disease or a
common enemy.
23. - §0. He shall issue writs of election to fill such
vacancies as occur in the senate or house of representatives.
24. - §1. He may grant reprieves, commutations and pardons
after convictions, for all offences except treason and cases of
impeachment, upon such conditions, and with such restrictions and
limitations, as he may think proper, subject to regulations
provided by law, relative to the manner of ap- plying for
pardons. Upon conviction for treason, he may suspend the
execution of the sentence until the case shall be reported to the
legislature at its next session, when the legislature shall
either pardon, or commute the sentence, direct the execution of
the sentence, or grant a further reprieve. He shall communicate
to the legislature at each session information of each case of
reprieve, commutation or pardon granted, and the reasons
therefor.
25. - §12. In case of the impeachment of the governor, his
removal from office, death, inability, resignation, or absence
from the state, the powers and duties of the office shall devolve
upon the lieutenant governor for the residue of the term, or
until the disability ceases. When the governor shall be out of
the state in time of war, at the head of a military force
thereof, he shall continue commander-in-chief of all the military
force of the state.
26. - §13. During a vacancy in the office of governor, if the
lieutenant governor die, resign, be impeached, displaced, be
incapable of performing the duties of his office, or absent from
the state, the president pro tempore of the senate shall act as
governor until the vacancy be filled, or the disability cease.
27. - §14. The lieutenant governor shall, by virtue of his
office, be president of the senate. In committee of the whole he
may debate all questions; and when there is an equal division,
he shall give the casting vote.
28. - §15. No member of congress, nor any person holding office
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under the United States, or this state, shall execute the office
of governor.
29. -§16. No person elected governor or lieutenant governor
shall be eligible to any office or appointment from the
legislature, or either house thereof, during the time for which
he was elected. All votes for either of them, for any such
office, shall be void.
30.- §17. The lieutenant governor and president of the senate
pro tempore, when performing the duties of governor, shall
receive the same compensation as the governor.
31. - §18. All official acts of the governor, his approval of
the laws excepted, shall be authenticated by the great seal of
the state, which shall be kept by the secretary of state.
32. - §19. All commissions issued to persons holding office
under the provisions of this constitution, shall be in the name
and by the authority of the people of the state of Michigan,
sealed with the great seal of the state, signed by the governor,
and countersigned by the secretary of state.
32. - 3. The judicial department is regulated by the sixth
article as follows, namely:
33. - §1. The judicial power is vested in one supreme court, in
circuit courts, in probate courts, and in justices of the peace.
Municipal courts of civil and criminal jurisdiction may be
established by the legislature in cities.
34. - §2. For the term of six years, and thereafter, until the
legislature otherwise provide, the judges of the several circuit
courts shall be judges of the supreme court, four of whom shall
constitute a quorum. A concurrence of three shall be necessary to
a final decision. After six years the legislature may provide by
law for the organization of a supreme court, with the
jurisdiction and powers prescribed in this constitution, to
consist of one chief justice and three associate justices, to be
chosen by the electors of the state. Such supreme court, when so
organized, shall not be changed or discontinued by the
legislature for eight years thereafter. The judges thereof shall
be so classified that but one of them shall go out of office at
the same time. Their term of office, shall be eight years.
35. - §3. The supreme court shall have a general superintending
control over all inferior courts, and shall have power to issue
writs of error, habeas corpus, mandamus, quo warrants,
procedendo, and other original and remedial writs, and to hear
and determine the same. In all other cases it shall have
appellate jurisdiction only.
36. - §4. Four terms of the supreme court shall be held
annually, at such times and places, as may be designated by law.
37. - §5. The supreme court shall, by general rules, establish,
modify and amend the practice in such court and in the circuit
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courts, and, simplify the same. The legislature shall, as far as
practicable, abolish distinctions between law and equity
proceedings. The office of master in chancery is prohibited.
38. - §6. The state shall be divided, into eight judicial
circuits; in each of which the electors thereof shall elect one
circuit judge, who shall hold his office for the term of six
years, and until his successor is elected and qualified.
39. - §7. The legislature may alter the limits of circuits, or
increase the number of the same. No alteration or increase shall
have the effect to remove a judge from office. In every
additional circuit established the judge shall be elected by the
electors of such circuit, and his term of office shall continue
as provided in this constitution for judges of the circuit court.
40. - §8. The circuit courts shall have original jurisdiction
in all matters civil and criminal, not excepted in this
constitution, and not probibited by law; and, appellate
jurisdiction from all inferior courts and tribunals, and a
supervisory control of the same. They shall also have power to
issue writs of habeas corpus, mandamus, injunction, quo warranto,
certiorari, and other writs necessary to carry into effect their
orders, judgments and decrees, and give there a general control
over inferior courts and tribunals within their respective
jurisdictions.
41. - §9. Each of the judges of the circuit courts shall
receive a salary payable quarterly. They shall be ineligible to
any other than a judicial office during the term for which they
are elected, and for one year thereafter. All votes for any
person elected such judge for any office other than judicial,
given either by the legislature or the people, shall be void.
42. - §10. The supreme court may appoint a reporter of its
decisions. The decisions of the supreme court shall be in
writing, and signed by the judges concurring therein. Any judge
dissenting there from, shall give the reasons of such dissent in
writing, under his signature. All such opinions shall be filed in
the office of the clerk of the supreme court. The judges of the
circuit court, within their respective jurisdictions, may fill
vacancies in the office of county clerk and of prosecuting,
attorney; but no judge of the supreme court, or, circuit court,
shall exercise any other power of appointment to public office.
43. - §11. A circuit court shall be held at least twice in each
year, in every county organized for judicial purposes, and four
times in each year in counties containing ten thousand
inhabitants. Judges of the circuit court may hold courts for each
other, and shall do so when required by law.
44. - 12. The clerk of each county organized for judicial
purposes shall be the clerk of the circuit court of such county,
and of the supreme court when held within the same.
45. - §13. In each of the counties organized for judicial
purposes, there shall be a court of probate. The judge of such
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court shall be elected by the electors of the county in which he
resides, and shall hold his office for four years, and until his
successor is elected and qualified. The jurisdiction, powers, and
duties of such court, shall be prescribed by law.
46. - §14. When a vacancy occurs in the office of judge of the
supreme, circuit or probate court, it shall be filled by
appointment of the governor, which shall continue until a
successor is elected and qualified. When elected, such successor
shall hold his office the residue of the unexpired term.
47. - §15. The supreme court, the circuit and probate court of
each county, shall be courts of record, and shall each have a
common seal.
48. - §16. The legislature may provide by law for the election
of one or more persons in each organized county, who may be
vested with judicial powers, not exceeding those of a judge of
the circuit court at chambers.
49. - §17. There shall be not exceeding four justices of the
peace in each organized township. They shall be elected by the
electors of the townships, and shall hold their offices for four
years, and until their successors are elected and qualified. At
the first election in any township, they shall be classified as
shall be prescribed by law. A justice elected to fill a vacancy
shall hold his office for the residue of the unexpired term. The
legislature may increase the number of justices in cities.
50. - §18. In civil cases justices of the peace shall have
exclusive jurisdiction to the amount of one hundred dollars, and
concurrent jurisdiction to the amount of three hundred dollars,
which may be increased to five hundred dollars, with such
exceptions and restrictions as may be provided by law. They shall
also have such criminal jurisdiction and perform such duties as
shall be prescribed by the legislature.
51. - §19. Judges of the supreme court, circuit judges, and
justices of the peace, shall be conservators of the peace within
their respective jurisdictions.
52. - §20. The first election of judges of the circuit courts
shall be held on the first Monday in April, one thousand eight
hundred and fifty-one, and every sixth year thereafter. Whenever
an additional circuit is created, provision. shall be made to
hold the subsequent election of such additional judges at the
regular elections herein provided.
53. - §1. The first election of judges of the probate courts
shall be held on the Tuesday succeeding the first Monday of
November, one thousand eight hundred and fifty-two, and every
fourth year thereafter.
54. - §22. Whenever a judge shall remove beyond the limits of
the jurisdiction for which he was elected or a justice of the
peace from the township in which he was elected, or by a change
in the boundaries of such township shall be placed without the
same, they shall be deemed to have vacated their respective
offices.
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55. - §23. The legislature may establish courts of
conciliation, with such powers and duties as shall be prescribed
by law.
56. - §24. Any suitor in any court of this state shall have the
right to prosecute or defend his suit, either in his own proper
person, or by an attorney or agent, of his choice.
57. - §5. In all prosecutions for libels, the truth may be
given in evidence to the jury; and if it shall appear to the
jury that the matter charged as libelous is true, and was
published with good motives and for justifiable ends, the party
shall be acquitted. The jury shall have the right to determine
the law and the fact.
58. - §26. The person, houses, papers, and possessions of every
person shall be secure from unreasonable searches and seizure. No
warrant to search any place, or to seize any person or things
shall issue without describing them, nor without probable cause,
supported by oath or affirmation.
59. - §27. The right of trial by jury shall remain, but shall
be deemed to be waived in all civil cases unless demanded by one
of the parties, in such manner as shall be prescribed by law.
60. - §8. In every criminal prosecution, the accused shall have
the right to a speedy and public trial by an impartial jury,
which may consist of less than twelve, men in all courts not of
record; to be informed of the nature of the accusation; to be
confronted with the witnesses against him; to have compulsory
process for obtaining witnesses in his favor, and have the
assistance of counsel for his defence.
61. - §29. No person, after acquittal upon the merits, shall be
tried for the same offence; all persons shall, before
conviction, be bailable by sufficient sureties, except for murder
and treason, when the proof is evident or the presumption great.
62. - §30. Treason against the state shall consist only in
levying war against, or in adhering to its enemies, giving them
aid and comfort. No person shall be convicted of treason unless
upon the testimony of two witnesses to the same overt act, or on
confession in open court.
63. - §31. Excessive bail shall not be required; excessive
fines shall not be imposed; cruel or unusual punishment shall
not be inflicted, nor, shall witnesses be unreasonably detained.
64. - §32. No person shall be compelled, in any criminal case,
to be a witness against himself; nor be deprived of life,
liberty, or property, without due process of law.
65. - §33. No person shall be imprisoned for debt arising out
of, or founded on a contract, express or implied, except in cases
of fraud or breach of trust, or of moneys collected by public
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officers, or in any professional employment. No person shall be
imprisoned for a militia fine in time of peace.
66. - §34. No person shall be rendered incompetent to be a
witness, on account of his opinions on matters of religious
belief.
67. - §35. The style of all process shall be, "In the name of
the people of the State of Michigan."
MIDDLEMAN contracts. A person who is employed both by the
seller and purchaser of goods, or by the purcbaser alone, to
receive them into his possession, for the purpose of doing
something in or about them; as, if goods be delivered from a
ship by the seller, to a wharfinger, to be by him forwarded to
the purchaser, who has been appointed by the latter to receive
them; or if goods be sent to a packer, for and by orders of the
vendee, the packer is to be considerpd as a middleman.
2. The goods in both, these cases will be considered in
transitu, provided the purchaser has not used the wharfinger's or
the packer's warehouse as his own, an have an ulterior place of
delivery in view. 3 B. & P. l27, 469; 4 Esp. R. 82; 2 B. & P.
457; 1 Campb. 282; 1 Atk. 245; 1 H. Bl. 364; 3 East, R. 93;
Whit. on Trans. 195.
3. By middleman is also understood one who has been employed as
an agent by a principal, and who has employed a subagent under
him by authority of the principal, either express or implied. He
is not in general Iiable for the wrongful acts of the sub-agent,
the principal being alone responsible. 3 Campb. N. P. Cas. 4; 6
T. R. 411; 14 East, 65.
MIDWIFE, med. jur. A woman who practices midwifery; a woman
who pursues the business of an account.
2. A midwife is required to perform the business she undertakes
with proper skill, and if she be guilty of any mala praxis, (q.
v.) she is liable to an action or an indictment for the
misdemeanor. Vide Vin. Ab. Physician; Com. Dig. Physician; 8
East, R. 348; 2 Wils. R. 359; 4 C. & P. 398; S. C. 19 E. C. L.
R. 440; 4 C. & P. 407, n. a; 1 Chit. Pr. 43; 2 Russ. Cr. 288.
MILE, measure. A length of a thousand paces, or seventeen
hundred and sixty yards, or five thousand two hundred and eighty
feet. It contains eight furlongs, every furlong being forty
poles, and each pole sixteen feet six inches. 2 Stark. R. 89.
MILEAGE. A compensation allowed by law to officers, for their
trouble and expenses in travelling on public business.
2. The mileage allowed to members of congress, is eight dollars
for every twenty miles of estimated distance, by the most usual
roads, from his place of residence to the seat of congress, at
tbe commencement and end of every session. Act of Jan. 22, 1818;
3 Story, Laws U. S. 1657.
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3. In computing mileage the distance by the road usually
travelled is that which must be allowed, whether in fact the
officer travels a more or less distant way to suit his own
convenience. 5 Shepl. R. 431.
MILITARY. That which belongs or relates to the army.
MILITIA. The military force of the nation, consisting of
citizens called forth to execute the laws of the Union, suppress
insurrection and repel invasion.
2. The Constitution of the United States provides on this
subject as follows: Art. 1, s. 8, 14. Congress shall have power
to provide for calling forth the militia to execute the laws of
the Union, suppress insurrections, and repel invasions.
3. - 15. to provide for organizing, arming, and disciplining
the militia, and for governing such part of them as may be
employed in the service of the United States, reserving to the
states respectively, the appointment of the officers, and the
authority of training the militia, according to the discipline
prescribed by congress.
4. Under the clauses of the constitution, the following points
have been decided.
1. If congress had chosen, they might by law, have considered a
militia man, called into the service ot the United States, as
being, from the time of such call, constructively in that
service, though not actually so, although he should not appear at
the place of rendezvous. But they have not so considered him, in
the acts of congress, till after his appearance at the place of
rendezvous: previous to that, a fine was to be paid for the
delinquency in not obeying the call, which fine was deemed an
equivalent for his services, and an atonement for disobedience.
5. - 2. The militia belong to the states respectively, and are
subject, both in their civil and military capacities, to the
jurisdiction and laws of the state, except so far as these laws
are controlled by acts of congress, constitutionally made.
6. - 3. It is presumable the framers of the constitution
contemplated a full exercise of all the powers of organizing,
arming, and disciplining the militia; nevertheless, if congress
had declined to exercise them, it was competent to the state
governments respectively to do it. But congress has ex- ecuted
these powers as fully as was thought right, and covered the whole
ground of their legislation by different laws, notwithstanding
important provisions may have been omitted, or those enacted
might be beneficially altered or enlarged.
7. - 4. After this, the states cannot enact or enforce laws on
the same subject. For although their laws may not be directly
repugnant to those of congress, yet congress, having exercised
their will upon the subject, the states cannot legislate upon it.
If the law of the latter be the same, it is inoperative: if they
differ, they must, in the nature of things, oppose each other, so
far as they differ.
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8. - 5. Thus if an act of congress imposes a fine, and a state
law fine and imprisonment for the same offence, though the latter
is not repugnant, inasmuch as it agrees with the act of the
congress, so far as the latter goes, and add another punishment,
yet the wills of the two legislating powers in relation to the
subject are different, and cannot subsist harmoniously together.
9. - 6. The same legislating power may impose cumulative
punishments; but not different legislating powers.
10. - 7. Therefore, where the state governments have, by the
constitution, a concurrent power with the national government,
the former cannot legislate on any subject on which congress has
acted, although the two laws are not in terms contradictory and
repugnant to each other.
11. - 8. Where congress prescribed the punishment to be
inflicted on a militia man, detached and called forth, but
refusing to march, and also provided that courts martial for the
trial of such delinquent's, to be composed of militia officers
only, should be held and conducted in the manner pointed out by
the rules and articles of war, and a state had passed a law
enacting the penalties on such delinquents which the act of
congress prescribed, and directing lists of the delinquents to be
furnished to the comptroller of the United States and marshal,
that further proceeding might take place according to the act of
congress, and providing for their trial by state courts martial,
such state courts martial have jurisdiction. Congress might have
vested exclusive jurisdiction in courts martial to be held
according to their laws, but not having done so expressly, their
jurisdiction is not exclusive.
12. - 9. Although congress have exercised the whole power of
calling out the militia, yet they are not national militia, till
employed in actual service; and they are not employed in actual
service, till they arrive at the place of rendezvous. 5 Wheat. 1;
Vide 1 Kent's Com. 262; 3 Story, Const. §1194 to 1210.
13. The acts of the national legislature which regulate the
militia are the following, namely: Act of May 8, 1792, 1 Story,
L. U. S. 252; Act of February 28, 1795, 1 Story, L. U. S. 390;
Act of March 2, 1803, 2 Story, L. U. S. 888; Act of April 10,
1806, Story, L. U. S. 1005; Act of April 20, 1816, 3 Story, L.
U. S. 1573; Act of May 12, 1820, 3 Story, L. U. S. 1786 Act of
March 2, 1821, 3 Story; L. U. S. 1811.
MILL, estates. Mills are so very different and various, that it
is not easy to give a definition of the term. They are used for
the purpose of grinding and pulverising grain and other matters,
to extract the juices of vegetables, to make various articles of
manufacture. They take their names from the uses to which they
are employed, hence we have paper-mills, fulling-mills,
iron-mills, oil-mills, saw-mills, &c. In another respect their
kinds are various; they are either fixed to the freehold or not.
Those which are a part of the freehold, are either watermills,
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wind-mills, steam-mills, &c.; those which are not so fixed, are
hand-mills, and are merely personal property. Those which are
fixed, and make a part of the freehold, are buildings with
machinery calculated to obtain the object proposed in their
erection.
2. It has been held that the grant of a mill; and its
appurtenances, even without the land, carries the whole right of
water enjoyed by the grantor, as necessary to its use, and as a
necessary incident. Cro. Jac. 121, And a devise of a mill carries
the land used with it, and the right to use the water. 1 Serg. &
Rawle, 169; and see 5 Serg. & Rawle, 107; 2 Caine's Ca. 87; 10
Serg. & Rawle, 63; 1 Penna. R. 402; 3 N. H. Rep. 190; 6
Greenl. R. 436; Id. 154; 7 Mass. Rep. 6; 5 Shepl. 281.
3. A mill means not merely the building, in which the business
is carried on, but includes the site, the dam, and other things
annexed to the freehold, necessary for its beneficial enjoyment.
3 Mass R. 280. See Vide 6 Greenl. R. 436.
4. Whether manufacturing machinery will pass under the grant of
a mill must depend mainly on the circumstances of each case. 5
Eng. C. L. R. 168; S. C. 1 Brod. & Bing. 506. In England the law
appears not to be settled. 1 Bell's Com. 754, note 4, 5th ed. In
this note are given the opinions of Sir Samuel Romily and Mr.
Leech, on a question whether a mortgage of a piece of land on
which a mill was erected, would operate as a mortgage of the
machinery. Sir Samuel was clearly of opinion that such a mortgage
would bind the machinery, and Mr. Leech was of a directly
opposite opinion.
5. The American law on this subject, appears not to be entirely
fixed. 1 Hill. Ab. 16; 1 Bailey's R. 540; 3 Kent, Com. 440;
see Amos & Fer., on Fixt., 188, et seq.; 1 Atk. 165; 1 Ves.
348; Sugd. Vend. 30; 6 John. 5; 10 Serg. & Rawle, 63; 2 Watts
& Serg. 116; 6 Greenl. 157; 20 Wend. 636; 1 H. Bl. 259, note;
17 S. & R. 415; 10 Amer. Jur. 58; 1 Misso. R. 620; 3 Mason,
464; 2 Watts & S. 390. Vide 15 Vin. Ab. 398; Dane's Ab. Index,
h. t. 6 Cowen, 677.
MILL, money. An imaginary money, of which ten are equal to one
cent, one hundred equal to a dime, and one thousand equal to a
dollar. There is no coin of this denomination. Vide Coin; Money.
MILLED MONEY. This term means merely coined money, and it is
not necessary that it should be marked or rolled on the edges.
Running's case, Leach, 708.
MIL-REIS. The name of a coin. The mil-reis of Portugal is taken
as money of account, at the custom-house, to be of the value of
one hundred and twelve cents. Act of March 13, 1843.
2. The mil-reis of Azores, is deemed of the value of
eighty-three and one-third cents. Act of Match 3, 1843.
3. The mil-reis of Maderia, is deemed of the value of one
hundred cents. Id.
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MIND AND MEMORY. It is usual in considering the state of a
testator at the time of making his will, to ascertain whether he
was of sound mind and memory; that is, whether he had capacity
to make a will. These words then import capacity, ability.
MINE. An excavation made for obtaining minerals from the bowels
of the earth, and the minerals themselves are known by the name
of mine.
2. Mines are therefore considered as open and not open. An open
mine is one at which work has been done, and a part of the
materials taken out. When land is let on which there is an open
mine, the tenant may, unless restricted by his lease, work the
mine; 1 Cru. Dig. 132; 5 Co. R. 12; 1 Chit. Pr. 184, 5; and
he may open new pit's or shafts for working the old vein, for
otherwise the working of the same mine might be impracticable. 2
P. Wms. 388; 3 Tho. Co. Litt. 237; 10 Pick. R. 460. A mine not
opened, cannot be opened by a tenant for years unless authorized,
nor even by a tenant for life, without being guilty of waste. 5
Co. 12.
3. Unless expressly excepted, mines would be included in the
conveyance of land, without being expressly named, and so vice
versa, by a grant of a mine, the land itself, the surface above
the mine, if livery be made, will pass. Co. Litt. 6; 1 Tho. Co.
Litt. 218; Shep. To. 26. Vide, generally, 15 Vin. Ab. 401; 2
Supp. to Ves. jr. 257, and the cases there cited, and 448; Com.
Dig. Grant, G 7; Id. Waifs, H. 1; Crabb, R. P. §§98-101; 10
East, 273; 1 M. & S. 84; 2 B. & A. 554; 4 Watts, 223-246.
4. In New York the following provisions have been made in
relation to the mines in that state, by the revised statutos,
part 1, chapter 9, title 11. It is enacted as follows, by
§1. The following mines are, and shall be, the property of this
state, in its right of sovereignty. 1. All mines of gold and
silver discovered, or hereafter to be discovered, within this
state. 2. All mines of other metals discovered, or hereafter to
be discovered, upon any lands owned by persons not being citizens
of any of the United States. 3. All mines of other metals
discovered, or hereafter to be discovered, upon lands oned by a
citizen of any of the United States, the ore of which, upon an
average, shall contain less than two equal third parts in value,
of copper, tin, iron or lead, or any of those metals.
6. - §2. All mines, and all minerals and fossils discovered, or
hereafter to be discovered, upon any lands belonging to the
people of this state, are, and shall be the property of the
people, subject to the provisions hereinafter made to encourage
the discovery thereof.
6. - §3. All mines of whatever description, other than mines
of gold and silver, discovered or hereafter to be discovered,
upon any lauds owned by a citizen of the United states, the ore
of which, upon an average, shall contain two equal third parts or
more, in value, of copper, tin, iron and lead, or any of those
metals, shall belong to the owner of such land.
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7. - §4. Every person who shall make a discovery of any mine of
gold or silver, within this state, and the executors,
administrators or assigns of such person, shall be exempted from
paying to the people of this state, any part of the ore, profit
or produce of such mine, for the term of twenty-one years, to be
computed from the time of giving notice of such discovery, in the
manner hereinafter directed.
8. - §5. No person discovering a mine of gold or silver within
this state, shall work the same, until he give notice thereof, by
information in writing, to the secretary of this state,
describing particularly therin the nature and situation of the
mine. Such notice shall be registered in a book, to be kept the
secretary for that purpose.
9. - §6. After the expiration of the term above specified, the
discoverer of the mine, or his representatives, shall be
preferred in any contract for the working of such mine, made with
the legislature or under its authority.
10. - §7. Nothing in this title contained shall affect any
grants heretofore made by the legislature, to persons having
discovered mines; nor be construed to give to any person a right
to enter on, or to break up the lands of any other person, or of
the people of this state, or to work any mines in such lands,
unless the consent, in writing, of the owner thereof, or of the
commissioners of the land office, when the lands belong to the
people of this state, shall be previously obtained.
MINISTER, government. An officer who is placed near the
sovereign, and is invested with the administration of some one of
the principal branches of the government.
2. Ministers are responsible to the king or other supreme
magistrate who has appointed them. 4 Conn. 134.
MINISTER, international law. This is the general name given to
public functionaries who represent their country abroad, such as
ambassadors, (q.v.) envoys, (q.v.) and residents. (q.v.) A custom
of recent origin has introduced a new kind of ministers, without
any particular determination of character; these are simply
called ministers, to indicate that they are invested with the
general character of a sovereign's mandatories, without any
particular assignment of rank or character.
2. The minister represents his government in a vague and
indeterminate manner, which cannot be equal to the first degree;
and be possesses all the rights essential to a public minister.
3. There are also ministers plenipotentiary, who, as they
possess full powers, are of much greater distinction than simple
ministers. These also, are without any particular attribution of
rank and character, but by custom are now placed immediately
below the ambassador, or on a level with the envoy extraordinary.
Vattel, liv. 4, c. 6, §74; Kent, Com. 38; Merl. R‚pert. h. t.
sect. 1, n. 4.
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4. Formerly no distinction was made in the different classes of
public ministers, but the modern usage of Europe introduced some
distinctions in this respect, which, on account of a want of
precision, became the source of controversy. To obviate these,
the congress of Vienna, and that of Aix la Chapelle, put an end
to these disputes by classing ministers as follows: 1.
Ambassadors, and papal legates or nuncios. 2. Envoys, ministers,
or others accredited to sovereigns, (aupres des souverains). 3.
Ministers resident, accredited to sovereigns. 4. Charg‚s
d'Affaires, accredited to the minister of foreign affairs. R‚cez
du CongrŠs de Vienne, du 19 Mars, 1815; Protocol du CongrŠs d'
Aix la Chapelle, du 21 Novembre, 1818; Wheat, Intern. Law, pt.
3, c. §6.
5. The act of May 1, 1810, 2 Story's L. U. S. 1171, fixes a
compensation for public, ministers, as follows
§1. Be it enacted, &c. That the president of the United States
shall not allow to any minister plenipotentiary a greater sum
than at the rate of nine thousand dollars per annum, as a
compensation for all his personal services and expenses; nor to
any chargŠ des affaires, a greater sum than at the rate of four
thousand five bundred dollars per annum, as a compensation for
all his personal services and expenses, nor to the secretary of
any legation, or embassy to any foreign country, or secretary of
any minister plenipotentiary, a greater sum than at the rate of
two thousand dollars per annum, as a compensation for all his
personal services and expenses; nor to any consul who shall be
appointed to reside at Algiers, a greater sum than at the rate of
four thousand dollars per annum, as a compensation for all his
personal services and expenses; nor to any other consul who
shall be appointed to reside at any other of the states on the
coast of Barbary, a greater sum than at the rate of two thousand
dollars per annum, as a compensation for all his personal
services and expenses; nor shall there be appointed more than
one consul for any one of the said states: Provided, it shall be
lawful for the president of the United States to allow to a
minister plenipotentiary, or chargŠ des affaires, on going from
the United States to any foreign country, an outfit, which shall
in no case exceed one year's full salary of such minister or
chargŠ des affaires; but no consul shall be allowed an outfit in
any case whatever, any usage or custom' to the contrary
notwithstanding.
6. - §2. That to entitle any chargŠ des affaires, or secretary
of any legation or embassy to any foreign country, or secretary
of any minister pleni-potentiary, to the compensation
hereinbefore provided, they shall, respectively, be appointed by
the president of the United Staies, by and with the advice and
consent of the senate; but in the recess of the senate, the
president is hereby authorized to make such appointments, which
shall be submitted to the senate at the next session thereafter,
for their advice and consent; and no compensation shall be
allowed to any chargŠ des affaires, or any of the secretaries
hereinbefore described, who shall not be appointed as aforesaid:
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Provided, That nothing herein contained shall be construed to
authorize any appointment, of a secretary to a chargŠ des
affaires, or to any consul residing on the Barbary coast; or to
sanction any claim against the United States for expenses
incident to the same, any usage or custom to the contrary
notwithstanding.
7. The Act of August 6, 1842, sect. 9, directs, that the
president of the United States shall not allow to any minister,
resident a greater sum than at the rate of six thousand dollars
per annum, as a compensation for all his personal services and
expenses: Provided, that it shall be lawful for the president to
allow to such minister resident, on going from the United States
to any foreign country, an outfit, which shall in no case exceed
one year's full salary of such minister resident.
MINISTER, eccles. law. One ordained by some church to preach
the gospel.
2. Ministers are authorized in the United States, generally, to
marry, and are liable to fines and penalties for marrying minors
contrary to the local regulations. As to the right of ministers
or parsons, see Am. Jur. No. 30, p. 268; Anth. Shep. Touch. 564;
2 Mass. R. 500; 10 Mass. R. 97; 14 Mass. R. 333; 3 Fairf. R.
487.
MINISTER, mediator. An officer appointed by the government of
one nation, with the consent of two other nations, who have a
matter in dispute, with a view by his interference and good
office to have such matter settled.,
MINISTERIAL. That which is done under the authority of a
superior; opposed to judidial; as, the sheriff is a ministerial
officer bound to obey the judicial commands of the court.
2. When an officer acts in both a judicial and ministerial
capacity, he may be compelled to perform ministerial acts in a
particular way; but when he acts in a judicial capacity, he can
only be required to proceed; the manner of doing so is left
entirely to his judgment. See 2 Fairf. 377; Bac. Ab. Justices of
the Peace, E; 1 Conn. 295; 3 Conn. 107; 9 Conn. 275; 12 Conn.
464; also Judicial; Mandamus; Sheriff.
MINISTERIAL TRUSTS. These which are also called instrumental
trusts, demand no further exercise of reason or understanding,
than every intelligent agent must necessarily employ as to convey
an estate. They are a species of special trusts, distinguished
from discretionary trusts, which necessarily require much
exercise of the understanding. 2 Bouv. Inst. A. 1896.
MINOR, persons. One under the age of twenty-one years, while in
a state of infancy; one who has not attained the age of a major.
The terms major and minor, are more particularly used in the
civil law. The common law terms are adult and infant. See Infant.
MINORITY. The state or condition of a minor; infancy. In
another sense, it signifies the lesser number of votes of a
deliberative assembly; opposed to majority. (q.v.)
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MINT. The place designated by law, where money is coined by
authority of the government of the United States.
2. The mint was established by the Act of April 2, 1792, 1
Story's L. U. S. 227, and located at Philadelphia, where, by
virtue of sundry acts of congress, it still remains. Act of April
24, 1800, 1 Story, 770; Act of March 3, 1801, 1 Story, 816; Act
of May 19, 1828, 4 Sharsw. cont. of Story's L. U. S. 2120.
3. Below will be found a reference to the acts of congress now
in force in relation to the mint. Act of January 18, 1837, 4
Sharsw. cont. of Story, L. U. S. 2120; Act of May 19, 1828, 4
Id. 2120; Act of May 3, 1835; Act of February 13, 1837; Act of
March 3, 1849; Act of March 3, 1851, s. 11. Vide Coin; Foreign
Coin; Money.
MINUTE, measures. In divisions of the circle or angular
measures, a minute is equal to sixty seconds, or one sixtieth
part of a degree.
2. In the computation of time, a minute is equal to sixty
seconds, or the sixtieth part of an hour. Vide Measure.
MINUTE, practice. A memorandum of what takes place in court;
made by authority of the court. From these minutes the record is
afterwards made up.
2. Toullier says, they are so called because the writing in
which they were originally, was small, that the word is derived,
from the Latin minuta, (scriptura) in opposition to copies which
were delivered to the parties, and which were always written in a
larger hand. 8 Toull. n. 413.
3. Minutes are not considered as any part of the record. 1 Ohio
R. 268. See 23 Pick. R. 184.
MINUTE BOOK. A book kept by the clerk or prothonotary of a
court, in which minutes of its proceedings are entered. It has
been decided that minutes are no part of the record. 1 Ohio R.
268.
MIRROR DES JUSTICES. The Mirror of Justices, a treatise written
during the reign of Edward II. Andrew Horne is its reputed
author. It was first published in 1642, and in 1768 it was
translated into English by William Hughes. Some diversity of
opinion seems to exist as to its merits. Pref. to 9 & 10 Co. Rep.
As to the history of this celebrated book see St. Armand's Hist.
Essays on the Legislative power of England, 68, 59.
MIS. A syllable which prefixed to some word signifies some
fault or defect; as, misadventure, misprision, mistrial, and the
like.
MISADVENTURE, crim. law, torts. An accident by which an injury
occurs to another.
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2. When applied to homicide, misadventure is the act of a man
who, in the performance of a lawful act, without any intention to
do harm, and after using proper precaution to prevent danger,
unfortunately kills another person. The act upon which the death
ensues, must be neither malum in se, nor malum prohibitum. The
usual examples uuder this head are, 1. When the death ensues from
innocent recreations. 2. From moderate and lawful correction (q.
v.) in foro domestico. 3. From acts lawful and indifferent in
themselves, done with proper and ordinary caution. 4 Bl. Com.
182; 1 East, P C. 221.
MISBEHAVIOUR. Improper or unlawful conduct. See 2 Mart. N. S.
683.
2. A party guilty of misbehaviour; as, for example, to
threaten to do injury to another, may be bound to his good
behaviour and thus restrained. See Good Behaviour.
3. Verdicts are not unfrequently set aside on the ground of
misbehaviour of jurors; as, when the jury take out with them
papers which were not given in evidence, to the prejudice of one
of the parties. Ld. Raym. 148. When they separate before they
have agreed upon their verdict. 3 Day, 237, 310., When they cast
lots for a verdict; 2 Lev. 205; or, give their verdict because
they have agreed to give it for the amount ascertained by each
juror putting down a sum, adding the whole together, and then
dividing by twelve the number of jurors, and giving their verdict
for the quotient. 15 John. 87. See Bac. Ab. Verdict, H.
4. A verdict will be set aside if the successful party has been
guilty of any misbehaviour towards the jury; as, if he say to a
juror, "I hope you will find a verdict for me;" or " the matter
is clearly of my side." 1 Vent. 125; 2 Roll. Ab. 716, pl. 17.
See Code, 166, 401; Bac. Ab. Verdict, I.
MISCARRIAGE, med. jurisp. By this word is technically
understood the expul- sion of the ovum or embryo from the uterus
within the first six weeks after conception; between that time
and before the expiration of the sixth month, when the child may
possibly live, it is termed abortion. When the delivery takes
place soon after the sixth month, it is denominated premature
labor. But the criminal act of destroying the foetus at any time
before birth, is termed in law, procuring miscarriage. Chit. Med.
Jur. 410; 2 Dunglison's Human Physiology, 364. Vide Abortion;
Foetus.
MISCARRTAGE, contracts, torts. By the English statute of
frauds, 29, C. II., c. 3, s. 4, it is enacted that "no action
shall be brought to charge the defendant upon any special promise
to answer for the debt, default, or miscarriage of another
person, unless the agreement," &c. "shall be in writing," &c. The
word miscarriage, in this statute comprehends that species of
wrongful act, for the consequences of which the law would make
the party civilly responsible. The wrongful riding the horse of
another, without his leave or license, and thereby causing his
death, is clearly an act for which the party is reasonsible in
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damages, and therefore, falls within the meaning of the word
miscarriage. 2 Barn. & Ald. 516; Burge on Sur. 21.
MISCASTING. By this term is not understood any pretended
miscasting or mis- valuing, but simply an error in auditing and
numbering. 4 Bouv. Inst. n. 4128.
MISCOGNlSANT. This word, which is but little used, signifies
ignorant or not knowing. Stat. 32 H. VIII. c. 9.
MISCONDUCT. Unlawful behaviour by a person entrusted in any
degree: with the administration of justice, by which the rights
of the parties and the justice of the, case may have been
affected.
2. A verdict will be set aside when any of the jury have been
guilty of such misconduct, and a court will set aside an award,
if it has been obtained by the misconduct of an arbitrator. 2
Atk. 501, 504; 2 Chit. R. 44; 1 Salk. 71; 3 P. Wms. 362; 1
Dick. 66.
MISCONTINUANCE, practice. By this term is understood a
continuance of a suit by undue process. Its effect is the same as
a discontinuance. (q. v.) 2 Hawk. 299; Kitch. 231; Jenk. Cent.
57.
MISDEMEANOR, crim. law. This term is used to express every
offence infe- rior to felony, punishable by indictment, or by
particular prescribed proceedings; in its usual acceptation, it
is applied to all those crimes and offences for which the law has
not provided a particular name; this word is generally used in
contradistinction to felony; misdemeanors comprehending all
indictable offences, which do not amount to felony, as perjury,
battery, libels, conspiracies and public nuisances.
2. Misdemeanors have sometimes been called misprisions. (q. v.)
Burn's Just. tit. Misdemeanor; 4 Bl. Com. 5, n. 2; 2 Bar. &
Adolph. 75: 1 Russell, 43; 1 Chitty, Pr. 14; 3 Verm. 347; 2
Hill, S. C. 674; Addis. 21; 3 Pick. 26; 1 Greenl. 226; 2 P.
A. Browne, 249; 9 Pick. 1; 1 S. & R. 342; 6 Call. 245; 4
Wend. 229; 2 Stew. & Port. 379. And see 4 Wend. 229, 265; 12
Pick. 496; 3 Mass. 254; 5 Mass. 106. See Offence.
MISDIRECTION, practice. An error made by a judge in charging
the jury in a special case.
2. Such misdirection is either in relation to matters of law or
matters of fact.
3. - 1. When the judge at the trial misdirects the jury, on
matters of law, material to the issue, whatever may be the nature
of the case, the verdict will be set aside, and a new trial
granted; 6 Mod. 242; 2 Salk. 649; 2 Wils. 269; or if such
misdirection appear in the bill of exceptions or otherwise upon
the record, a judgment founded on a verdict thus obtained, will
be reversed. When the issue consists of a mixed question of law
and fact and there is a conceded state of facts, the rest is a
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question for the court; 2 Wend. R. 596; and a misdirection in
this respect will avoid the verdict.
4. - 2. Misdirection as to matters of fact will in some cases
be sufficient to vitiate the proceedings. If, for example, the
judge should undertake to dictate to the jury. When the, judge
delivers, his opinion to the jury on a matter of fact, it should
be delivered as mere opinion, and not as direc- tion. 12 John. R.
513. But the judge is in general allowed to very liberal
discretion in charging a jury on matters of fact. 1 McCl. & Y.
286.
5. As to its effects, misdirection must be calculated to do
injustice; for if justice has been done, and a new trial would
produce the same result, a new trial will not be granted on that
account, 2 Salk. 644, 646; 2 T. R. 4; 1 B. & P. 338; 5 Mass.
R. 1; 7 Greenl. R. 442; 2 Pick. R. 310; 4 Day's R. 42; 5
Day's R. 329; 3 John. R. 528; 2 Penna. R. 325.
MISE, English law. In a writ of right which is intended to be
tried by the grand assize, the general issue is called the mise.
Lawes, Civ. Pl. 111; 7 Cowen, 51. This word also signifies
expenses, and it is so commonly used in the entries of judgments
in personal actions; as when the plaintiff recovers, the
judgment is quod recuperet damna sua for such value, and pro
mises et custagiis for costs and charges for so much, &c.
MISERABILE DEPOSITUM, civ. law. The name of an involuntary
deposit, made under pressing necessity; as, for instance,
shipwreck, fire, or other inevitable calamity. Poth. Proced. Civ.
5eme part., ch. 1, §1 Louis. Code, 2935.
MISERICORDIA, mercy. An arbitrary or discretionary amercement.
2. To be in mercy, is to be liable to such punishment as the
judge may in his discretion inflict. According to Spelman,
misericordia is so called, because the party is in mercy, and to
distinguish this fine from redemptions, or heavy fines. Spelm.
GI. ad voc.; see Co. Litt. 126 b, and Madox's Excheq. c. 14. See
Judgment of Misericordia.
MISFEASANCE, torts, contracts. The performance of an act which
might lawfully be done, in an improper manner, by which another
person receives an injury. It differs from malfeasance, (q. v.)
or, nonfeasance (q. v.) Vide, generally, 2 Vin. Ab. 35; 2 Kent,
Com. 443; Doct. Pl. 62; Story, Bail. §9.
2. It seems to be settled that there is a distinction between
misfeasance and nonfeasance in the case of mandates. In cases of
nonfeasance, the mandatary is not generally liable, because his
undertaking being gratuitous, there is no consideration to
support it; but in cases of misfeasance, the common law gives a
remedy for the injury done, and to the extent of that injury. 5
T. R. 143; 4 John. Rep. 84; Story, Bailment, §165; 2 Ld. Raym.
909, 919, 920; 2 Johns. Cas. 92; Doct. & Stu. 210; 1 Esp. R.
74; 1 Russ. Cr. 140; Bouv. Inst. Index h. t.
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MISJOINDER, pleading. Misjoinder of causes of action, or
counts, consists in joining, in different counts in one
declaration, several demands, which the law does not permit to be
joined, to enforce several distinct, substantive rights of
recovery; as, where a declaration joins a count in trespass with
another in case, for distinct wrongs or a count in tort, with
another in contract. Gould. 6n PI. c. 4, §98; Archb. Civ. PI.
61, 78 176; Serg. and Rawle, 358; Dane's Ab. Index, h. t.
2. Misjoinder of parties, consists in joining as plaintiffs or
defendants, persons, who have not a joint interest. When the
misjoinder relates to the plaintiffs, the defendants may, at
common law, plead the matter in abatement, whether the action be
real; 12 H. IV., 15; personal; Johns. Ch. R. 350, 438; 12
John. R. 1; 2 Mass. R. 293; or mixed; or it will be good cause
of nonsuit at the trial. 3 Bos. & Pull. 235. Where the objection
appears upon the face of the declaration, the defendant may demur
generally; 2 Saund. 145; or move in arrest of judgment; or
bring a writ of error.
3. When in actions ex contractu against several, there is a
misjoinder of the defendants, as if there be too many persons
made defendants, and the objection appears on the pleadings,
either of the defendants may demur, move in arrest of judgment,
or support a writ of error; and, if the objection do not appear
on the pleadings, the plaintiff may be nonsuited upon the trial,
if he fail in proving a joint contract. 5 Johns. R. 280; 2
Johns. R. 213; 11 Johns. R. 101; 5 Mass. R. 270.
4. In actions ex delicto, the misjoinder cannot in general be
objected to, because in actions for torts, one defendant may be
found guilty and the others acquitted. Archb. Civ. Pl. 79. As to
the cases in which a misjoinder may be aided by a nolle prosequi,
see 2 Archb. Pr. 218-220.
MISNOMER. The act of using a wrong name.
2. Misnomers, may be considered with regard to contracts, to
devises and bequests, and to suits or actions.
3. - 1. In general, when the party can be ascertained, a
mistake in the name will not avoid the contract. 11 Co. 20, 21;
Lord Raym. 304; Hob. 125. Nihil facit error nominis, cum de
corpori constat, is the rule of the civil law.
4. - 2. Misnomers of legatees will not in general avoid the
legacy, when tho person intended can be ascertained from the
context. Example: Thomas Stockdale bequeathed "to his nephew
Thomas Stockdale, second son of his brother John Stockdale,"
1000œ, John had no son named Thomas, his second son was named
William, and he claimed the legacy. It was determined, in his
favor, because the mistake of the name was obviated by the
correct description given of the person, namely, the second son
of John Stockdale. 19 Ves. 381; S. C. Coop. 229; and see Ambl.
175; 3 Leon. 18; Co; Litt. 3 a; Finch's R. 403; Domat l. 4,
t. 2, s. 1, n. 22; 1 Rop. Leg. 131.
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5. - 3. Misnomers in suits or actions, when the mistake is in
the name of one of the parties, must be pleaded in abatement; 1
Chit. Pl. 440; 1 Mass. 76; 5 Mass. 97; 15 Mass. 469; 16 Mass:
146; 10 S. & R. 257; 4 Cowen, R. 148; Coxe, 138; 6 Munf. 219;
2 Wash. C. C. R. 200; 2 Penna. R. 984; 5 Halst. R. 295; 1 Pen.
R. 75, 137; 6 Munf. 580; 3 Caines, 170; 1 Tayl. R. 148; 8
Yerg. 101; Harp. R. 49; for the misnomer of one of the parties
sued is not material on the general issue, when the identity is
proved. 16 East, R. 110.
6. The names of third persons must, be correctly laid, for the
error will not be helped by pleading the general issue; but, if
a sufficient description be given, it has been held, in a civil
case, that the misnomer was immaterial. Example: in an action
for medicines alleged to have been furnished to defendant's wife,
Mary, and his wife was named Elizabeth, the misnomer was held to
be immaterial, the word wife being the material word. 2 Marsh. R.
159. In indictments, the names of third persons must be correctly
given. Rose. Cr. Ev. R. 78. Vide, generally, 18 E. C. L. R. 149;
10 East, R. 83, n; Bac. Ab. h. t.; Dane's Ab. h. t.; 1 Vin.
Ab. 7; 15 Vin. Ab. 466; 2 Phil, Ev. 2, note b; Bac. Ab.
Abatement, D; Archb. Civ. Pl. 305; 1 Metc. & Perk. Dig.
Abatement, V; and this Dictionary, Abatement; Contracts;
Parties to Contracts; Parties to Actions.
MISPLEADING. Pleading incorrectly, or omitting anything in
pleading which is essential to the support or defence of an
action, is so called.
2. Pleading not guilty to an action of debt, is an example of
the first; and when the plaintiff sets out a title not simply in
a defective manner, but sets out a defective title, is an example
of the second. See 3 Salk. 365.
MISPRISION, crim. law. 1. In its larger sense, this word is
used to signify every considerable misdemeanor, which has not a
certain name given to it in the law; and it is said that a
misprision is contained in every treason or felony whatever. 2.
In its narrower sense it is the concealment of a crime.
2. Misprision of treason, is the concealment of treason, by
being merely passive; Act of Congress of April 30, 1790, 1
Story's L. U. S. 83; 1 East, P. C. 139; for if any assistance
be given, to the traitor, it makes the party a principal, as
there is no accessories in treason.
3. Misprison of felony, is the like concealment of felony,
without giving any degree of maintenance to the felon; Act of
Congress of April 30, 1790, s. 6, 1 Story's L. U. S. 84; for if
any aid be given him, the party becomes an accessory after the
fact.
4. It is the duty of every good citizen, knowing of a treason
or felony having been committed; to inform a magistrate.
Silently to observe the commission of a felony, without using any
endeavors to apprehend the offender, is a misprision. 1 Russ. on
Cr. 43; Hawk. P. C. c. 59, s. 6; Id. Book 1, c. s. 1; 4 Bl.
Com. 119.
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5. Misprisions which are merely positive, are denominated
contempts or high misdemeanors; as, for example, dissuading a
witness from giving evidence. 4 Bl. Com. 126.
MISREADING, contracts. When a deed is read falsely to an
illiterate or blind man, who is a party to it, such false reading
amounts to a fraud, because the contract never had the assent of
both parties. 5 Co. 19; 6 East, R. 309; Dane's Ab. c. 86, a, 3,
§7; 2 John. R. 404; 12 John. R. 469; 3 Cowen, R. 537.
MISRECITAL, contracts, pleading. The incorrect recital of a
matter of fact, either in an agreement or a plea; under the
latter term is here understood the declaration and all the
subsequent pleadings. Vide Recital, and the cases there cited;
and Bac. Ab. Pleas, &c. B. 5, n. 3.
MISREPRESENTATION, contracts. The statement made by a party to
a contract, that a thing relating to it is in fact in a
particular way, when he knows it is not so.
2. The misrepresentation must be both false and fraudulent, in
order to make the party making it, responsible to the other for
damages. 3 Com. R. 413; 10 Mass. R. 197; 1 Rep. Const. Court,
328, 475, Yelv. 21 a, note l; Peake's Cas. 115; 3 Campb. 154;
Marsh. Ins. B. 1, c. 10, s. 1. And see Representation. It is not
every misrepresentation which will make a party liable; when a
mere misstatement of a fact has been erroneously made, without
fraud, in a casual, improvident communication, respecting a
matter which the person to whom the communication was made, and
who had an interest in it, should not have taken upon trust, but
is bound to inquire himself, and had the means of ascertaining
the truth, there would be no responsibility; 5 Maule & Selw.
380; 1 Chit. Pr. 836; 1 Sim. R. 13, 63; and when the informant
was under no legal pledge or obligation as to the precise
accuracy and correctness of his statement, the other party can
maintain no action for the consequences of that statement, upon
which it was his indiscretion to place reliance. 12 East, 638;
see also, 2 Cox, R. 134; 13 Ves. 133; 3 Bos. & Pull. 370; 2
East, 103; 3 T. R, 56, 61; 3 Bulstr. 93; 6 Ves. 183; 3 Ves. &
Bea. 110; 4 Dall. R. 250. Vide Concealment; Representation;
Suggestio falsi; Suppressio veri.
MISSING SHIP, mar. law. When a ship or other vessel has been at
sea for a much longer time than she ought to have been, she is
presumed to have perished there with all on board, and such a
vessel is called a missing ship.
2. There is no precise time fixed as to when the presumption is
to arise, and this must depend upon the circumstances of each
case. 2 Str. R. 1199; Park. Ins. 63; Marsh. Ins. 488; 2 Johns.
R. 150; 1 Caines' R. 525; Holt's N. P. Rep. 242.
MISSISSIPPI. The name of one of the new states of the United
States of America. This state was admitted into the Union, by a
resolution of congress, passed the 10th day of December, 1817; 3
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Story's L. U. S. 1716; by which it is "Resolved, that the state
of Mississippi, shall be one, and is hereby declared to be one of
the United States of America, and admitted into the Union on an
equal footing with these original states, in all respects
whatever."
2. The constitution of this state was adopted at the town of
Washington, the 15th day of August, 1817. It was revised by a
convention, and adopted on the 26th day of October, 1832, when it
went into operation.
3. By the second article of the constitution, a provision is
made for the distribution of powers as follows, namely;
§1. The powers of the government of the state of Mississippi,
shall be divided into three distinct departments, and each of
them confided to a separate body of magistracy; to wit; those
which are, legislative to one, those which are judicial to
another, and those which are executive to another.
4. - 2. No person, or collection of persons, being of one of
these departments, shall exercise any power properly belonging to
either of the others, except in the instances hereinafter
expressly directed or permitted.
5. - 1st. The legislative power of this state is vested in two
distinct branches the one styled "the senate" the other, "the
house of representatives;" and both together, "the legislature of
the state of Mississippi.
6. The following regulations, contained in the third article of
the constitution, apply to both branches of the legislature.
7. - §16. Each house may determine the rules of its own
proceedings punish members for disorderly behaviour, and, with
the consent of two-thirds, expel a member, but not a second time
for the same cause; and shall have all other powers necessary
for a branch of the legislature of a free and independent state.
8. - §17. Each house shall keep a journal of its proceedings,
and publish the same; and the yeas and nays of the members of
either house, on any question, shall, at the desire of any three
members present, be entered on the journal.
9. - § 18. When vacancies happen in either house, the governor,
or the person exercising the powers of the governor, shall issue
writs of election to fill such vacancies.
10. - §19. Senators and representatives shall, in all cases,
except of treason, felony, or breach of the peace, be privileged
from arrest during the session of the legislature and in going to
and returning from the same, allowing one day for every twenty
miles such member may reside from the place at which the
legislature is convened.
11. - §20. Each house may punish, by imprisonment, during the
session, any person, not a member, for disrespectful or
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disorderly behaviour in its presence, or for obstructing any of
its proceedings: Provided, such imprisonment shall not, at any
one time, exceed forty-eight hours.
12. - §21. The doors of each house shall be open, except on
such occasions of great emergency, as, in the opinion of the
house, may require secrecy.
13. - §22. Neither house shall, without the consent of the
other, adjourn for more than three days, nor to any other place
than that in which they may be sitting.
14. - §23. Bills may originate in either house, and be amended,
altered or rejected by the other, but no bill shall have the
force of a law, until on three several days, it be read in each
house, and free discussion be allowed thereon, unless four-fifths
of the house in which the bill shall be pending, may deem it
expedient to dispense with this rule; and every bill having
passed both houses, shall be signed by the speaker and president
of their respective houses.
15. - § 24. All bills for raising revenue shall originate in
the house of representatives, but the senate may amend or reject
them as other bills.
16. - §25. Each member of the legislature shall receive from
the public treasury a compensation for his services, which may be
increased or diminished by law, but no increase of compensation
shall take effect during the session at which such increase shall
have been made.
17. -§26. No senator or representative shall, during the term
for which be shall have been elected, nor for one year
thereafter, be appointed to any civil office of profit under this
state, which shall have been created, or the emoluments of which
shall have been increased, during such term, except such offices
as may be filled, by elections by the people; and no member of
either house of the legislature shall, after the commencement of
the first session of the legislature after his election and
during the remainder of the term for which he is elected, be
eligible to any office or place, the appointment to which may be
made in whole or in part by either branch of the legislature.
18. - §27. No judge of any court of law or equity, secretary of
state, attorney general, clerk of any court of record, sheriff or
collector, or any, person bolding a lucrative office under the
United States or this state, shall be eligible to the
legislature: Provided, That offices in the militia, to which
there is attached no annual salary, and the office of justice of
the peace, shall not be deemed lucrative.
19. - §28. No person who hath heretofore been, or hereafter may
be, a collector or holder of public moneys, shall have a seat in
either house of the legislature, until such person shall have
accounted for, and paid into the treasury, all sums for which he
may be accountable.
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20.- §29. The first election for senators and representatives
shall be general throughout the state, and shall be held on the
first Monday and day following in November 1833; and thereafter,
there shall be biennial elections for senators to fill the places
of those whose term of service may have expired.
21. - §30. The first and all future sessions of the
legislature shall be held in the town of Jackson, in the county
of Hinds, until the year 1850. During the first session
thereafter, the legislature shall have power to designate by law
the permanent seat of government: Provided, however, That unless
such designation be then made by law, the seat of government
shall continue permanently at the town of Jackson. The first
session shall commence on the third Monday in November, in the
year 1833. And in every two years thereafter, at such time as may
be prescribed by law.
22. - 1. The senate. Under this lead will be considered the
qualification of senators; their number; by whom they are
elected; the time for which they are elected.
1. No person shall be a senator unless he be a citizen of the
United States; and shall have been an inhabitant of this state
for four years next preceding his election, and the last year
thereof a resident of the district for which he shall be chosen,
and have attained the age of thirty years. Art. 3, s. 14.
2. The number of senators shall never be less than one-fourth,
nor more than one-third, of the whole number of representatives.
Art. 3, s. 10. 3. The qualifications of electors is as follows:
every free white male person of the age of twenty-one years or
upwards, who shall be a citizen of the United States, and shall
have resided in this state one year next preceding an election,
and the last four months within the county, city, or town in
which he offers to vote, shall be deemed a qualified elector.
Art. 3, s. 1. 4. The senators shall be chosen for four years, and
on their being convened in consequence of the first election,
they shall be divided by lot from their respective districts into
two classes, as nearly equal as can be. And the seats of the
senators of the first class shall be vacated at the expiration of
the second year.
23. - 2. The house of representatives, will be considered in
the same order that has been observed in relation, to the senate.
1. No person shall, be a representative unless he be a citizen of
the United States, and shall have been an inhabitant of this
state two years next prceeding his election, and the last year
thereof a resident of the county, city or town for which be shall
be chosen; and shall have attained the age of twenty-one years.
Art. 3, s. 7. 2. The number of representatives shall not be less
than thirty-six, nor more than one hundred. Art. 3, s. 9. 3. They
are elected by the same electors who elect senators. Art. 3, s.
1. 4. The representatives are chosen every two years on the first
Monday and day following in November. They serve two years from
the day of the commencement of the general election and no
longer. Art. 3, s. 5, and 6.
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24. - 2d. The judicial power. By the fourth article of the
constitution, the judicial power is distributed as follows,
namely:
§1. The judicial power of this state shall be vested in one
high court of errors and appeals, and such other courts of law
and equity as are hereafter provided for in this constitution.
25. - §2. The high court of errors and appeals shall consist of
three judges, any two of whom shall form a quorum. The
legislature shall divide the state into three districts, and the
qualified electors of each district shall elect one of said
judges for the term of six years.
26. - §3. The office of one of said judges shall be vacated in
two years, and of one in four years, and of one in six years, so
that at the expiration of every two years, one of said judges
shall be elected as aforesaid.
27. - §4. The high court of errors and appeals shall have no
jurisdiction, but such as properly belongs to a court of errors
and appeals.
28. - §5. All vacancies that may occur in said court, from
death, resignation or removal, shall be filled by election as
aforesaid. Provided, however, that if the unexpired term do not
exceed one year, the vacancy sbalI be filled by executive
appointment.
29. - §6. No person shall be eligible to the office of judge of
the high court of errors and appeals, who shall not have
attained, at the time of his election, the age of thirty yers.
30. - §7. The high court of errors and appeals shall be held
twice in each year, at such place as the legislature shall
direct, until the year eighteen hundred and thirty-six, and
afterwards at the seat of government of the state.
31. - §8. Tbe secretary of state, on receiving all the official
returns of the first election, shall proceed, forthwith, in the
presence and with the assistance of two justices of the peace, to
determine by lot among the three candidates having the highest
number of votes, which of said judges elect shall serve for the
term of two years, which shall serve for the term of four years,
and which shall serve for the term of six years, and having so
determined the same, it shall be the duty of the governor to
issue commissions accordingly.
32. - §9. No judge shall sit on the trial of any cause when the
parties or either of them shall be connected with him by affinity
or consanguinity, or when he may be interested in the same,
except by consent of the judge and of the parties; and whenever
a quorum of said court are situated as aforesaid, the governor of
the state shall in such case specially commission two or more men
of law knowledge for the determination thereof.
33. - §10. The judges of said court shall, receive for their
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services a compensation to be fixed by law, which shall not be
diminished during their continuance in office.
34. - §11. The judges of the circuit court shall be elected by
the qualified electors of each judicial district, and hold their
offices for the term of four years, and reside in their
respective districts.
35. - §12. No person shall be eligible to the office of judge
of the circuit court, who shall not, at the time of his election,
have attained the age of twenty-six years.
36. - §13. The state shall be divided into convenient
districts, and each district shall contain not less than three
nor more than twelve counties.
37. - §14. The circuit court shall have original jurisdiction
in all matters, civil and criminal, within this state; but in
civil cases only when the principal of the sum in controversy
exceeds fifty dollars.
38.- §15. A circuit court shall be held in each county of this
state, at least twice in each year; and the judges of said
courts shall interchange circuits with each other, in such manner
as may be prescribed by law, and shall receive for their services
a compensation to be fixed by law, which shall not be diminished
during their continuance in office.
39. - §16. A separate superior court of chancery, shall be
establisbed, with full jurisdiction in all matters of equity;
Provided, however, the legislature may give to the circuit courts
of each county equity jurisdiction in all cases where the value
of the thing, or amount in controversy, does not exceed five
hundred dollars; also, in all cases of divorce, and for the
foreclosure of mortgages. The chancellor shall be elected by the
qualified electors of the whole state, for the term of six years,
and shall be at least thirty years old at the time of his
election.
40. - §17. The style of all process, shall be "The state of
Mississippi," and all prosecutions shall be carried on in the
name and by the authority of "The state of Mississippi," and
shall conclude "against the peace and dignity of the same."
41. - §18. A court of probates shall be established in each
county of this state, with jurisdiction in all matters
testamentary and of administration in orpbans' business and the
allotment of dower, in cases of idiotcy and lunacy, and of
persons non compos mentis; the judge of said court shall be
elected by the qualified electors of the respective counties, for
the term of two years.
42. - §19. The clerk of the high court, of errors and appeals
shall be appointed by said court, for the term of four years, and
the clerks of the circuit, probate, and other inferior courts,
shall be elected by the qualified electors of the respective
counties, and shall hold their offices for the term of two years.
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43. - §20. The qualified electors of each county shall elect
five persons for the term of two years, who shall constitute a
board of police for each county, a majority of whom may transact
business; which body shall have full jurisdiction over roads,
highways, ferries, and bridges, and all other matters of county
police, and shall order all county elections to fill vacancies
that may occur in the offices of their respective counties: the
clerk of the court of probate shall be the clerk of the board of
county police.
44. - §21. No person shall be eligible as a member of said
board, who shall not have resided one year in the county: but
this qualification shall not extend to such new counties as may
hereafter be established until one year after tbeir
orgainization; and all vacancies that may occur in said board
shall be supplied by election as aforesaid to fill the unexpired
term.
45. - §22. The judges of all the courts of the state, and also
the members of the board of county police, shall in virtue of
their offices be conservators of tbe peace, and shall be by law
vested with ample powers in this respect.
46. - §23. A competent number of justices of the peace and
constables shall be chosen in each county by the qualified
electors thereof, by districts, who shall hold their offices for
the term of two years. The jurisdiction of justices of the peace
shall be limited to causes in which the principal of the amount
in controversy shall not exceed fifty dollars. In all causes
tried by a justice of the peace, the right of appeal shall be
secured under such rules and regulations as shall be prescribed
by law.
47. - §24. The legislature may from time to time establish,
such other inferior courts as may be deemed necessary, and
abolish the same whenever they shall deem it expedient.
48. - §25. There shall be an attorney general elected by the
qualified electors of the state: and a competent number of
district attorneys shall be elected by qualified voters of their
respective districts, whose compensation and term of service,
shall be prescribed by law.
49. §26. The legislature shall, provide by law for determining
contested elections of judges of the high court of errors and
appeals, of the circuit and probate courts, and other officers.
50. - §27. The judges of the several courts of this state, for
wilful neglect of duty or other reasonable cause, shall be
removed by the governor on the address of two-thirds of both
houses of the legislature; the address to be by joint vote of
both houses. The cause or causes for which such removal shall be
required, shall be stated at length in such address, and on the
journals of each house. The judge so intended to be removed,
shall be notified and admitted to a hearing in his own defence
before any vote for such address shall pass; the vote on such
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address shall be taken by yeas and nays, and entered on the
journals of each house.
51. - §28. Judges of probate, clerks, sheriffs, and other
county officers, for wilful neglect of duty, or misdemeanor in
office, shall be liable to presentment or indictment by a grand
jury, and trial by a petit jury, and upon conviction shall be
removed from office.
52. - 3d. The chief executive power of this state shall be
vested in a governor. It will be proper to consider his
qualifications; by whom he is elected; the time for which he is
elected; his rights, duties and powers; and how, vacancies are
supplied when the office of governor becomes vacant.
53. - 1. The governor shall be at least thirty years of age,
shall have been a citizen of the United States for twenty years,
shall have resided in this state at least five years next
preceding the day of his election, and shall not be capable of
holding the office more than four in any term of six years. Art.
5, s. 3.
54. - 2. The governor shall be elected by the qualified
elector's of the state. Art. 5, s. 2.
55. - 3. He shall hold his office for two years from the time
of his installation. Art 5, s. 1.
56. - 4. He shall, at stated times, receive for his services a
compensation which shall not be increased or diminished during
the term for which he shall be elected. Art. 5 s. 4.
57. - 5. He shall be commander-in-chief of the army and navy in
this state, and of the militia, except when they shall be called
into the service of the United States. Art. 5, s. 5.
58. - 6. He may require information in writing, from the
officers in the executive department, on any subject relating to
the duties of their respective offices. Art. 5, s. 6.
59. - 7. He may, in cases of emergency, convene the legislature
at the seat of government, or at a different place, if that shall
have become, since their last adjournment, dangerous from an
enemy or from disease; and in case of disagreement between the
two houses with respect to the time of adjournment, adjourn them
to such time as he shall think proper, not beyond the day of the
next stated meeting of the legislature. Art. 5, s. 7.
60. - 8. He shall from time to time give to the legislature
information of the state of the government, and recommend to
their consideration, such measures as he may deem necessary and
expedient. Art. 5, s. 8.
61. - 9. He shall take care that the laws be faithfully
executed. Art. 5, s. 9.
62. - 10. In all criminal and penal cases, except in those of
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treason and impeachment, he shall have power to grant reprieves
and pardons, and remit fines; and in cases of forfeiture to stay
the collection until the end of the next session of the
legislature, and to remit forfeitures by and with the advice and
consent of the senate. In cases of treason he shall have power to
grant reprieves by and with the advice and consent of the senate,
but may respite the sentence until the end of the next session of
the legislature. Art. 5, s. 10.
63. - 11. All commissions shall be in the name and by the
authority of the state of Mississippi; be sealed with the great
seal, and signed by the governor, and be attested by the
secretary of state. The governor is also invested with the veto
power. Art. 5, s. 15 and 16.
64. Whenever the office of governor shall become vacant by
death, resignation, removal from office, or otherwise, the
president of the senate shall exercise the office of governor
until another governor shall be duly qualified; and in case of
the death, resignation, removal from office, or other
disqualifications of the president of the senate so exercising
the office of governor, the speaker of the house of
representatives shall exercise the office, until a president of
the senate shall have been chosen; and when the office of
governor, president of the senate, and speaker of the house shall
become vacant, in the recess of the senate, the person acting as
secretary of state for the time being, shall by proclamation
convene the senate, that a president may be chosen to exercise
the office of governor. Art. 5, s. 17.
MISSOURI. The name of one of the new states of the United
States of America. This state was admitted into the Union by a
resolution of congress, approved March 2, 1821, 3 Story's L. U.
S. 1823, by which it is resolved, that Missouri shall be admitted
into this Union on an equal footing with the original states, in
all respects whatever. To this resolution there is a condition,
which having been fulfilled, it is now useless here to repeat.
2. The convention which formed the constitution of this state
assembled at St. Louis, on Monday the 12th of June, 1820, and
continued by adjournment, till the 19th day of July, 1820, when
the constitution was adopted, establishing "an independent
republic by the name of the `state of Missouri.'"
3. The powers of the government are divided into three distinct
departments, each of which is confided to a separate magistracy.
Art. 2.
4. - 1st. The legislative power is vested in a general
assembly, which consists of a senate and house of
representatives. 1. The senate is to consist of not less than
fourteen nor more than thirty-three members. The senators are
chosen by tho electors for the term of four years; one-half of
the senators are chosen every second year. 2. The house of
representatives is never to consist of more than one hundred
members. The members are chosen by the qualified electors every
second year.
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5. - 2d. The executive power is vested in a governor and
lieutenant-governor. 1. The supreme executive power is vested in
a chief magistrate, styled "the governor of the state of
Missouri." Art. 4, s. 1, He is elected by the people, and holds
his office for four years, and until a successor be duly
appointed and qualified. Art. 4, s. 3. He is invested with the
veto power. Art. 4, s. 10. The lieutenant-governor is elected at
the same time, in the same manner, for the same term, and is
required to possess the same qualifications as the governor. Art.
4, s. 14. He is by virtue of his office president of the senate,
and when the office of governor becomes vacant by death,
resignation, absence from the state, removal from office, refusal
to qualify, or otherwise, the lieutenant-governor possesses all
the powers and discharges all the duties of governor until such
vacancy be filled, or the governor, so absent or impeached, shall
return or be acquitted. And in such case there shall be a new
election after three months previous notice.
6. - 3d. The judicial powers are vested by the 5th article of
the constitution as follows:
§1. The judicial powers, as to matters of law and equity, shall
be vested in a "supreme court," in a "chancellor," in "Circuit
courts," and in such inferior tribunals as the general assembly
may, from time to time, ordain and establish.
7. - 2. The supreme court, except in cases otherwise directed
by this constitution, shall have appellate jurisdiction only,
which shall be coextensive with the state, under the restrictions
and limitations in this constitution provided.
8. - 3. The supreme court shall have a general superintending
control over all inferior courts of law. It shall have power to
issue writs of habeas corpus, mandamus, quo warranto, certiorari,
and other original remedial writs; and to hear and determine the
same.
9. - 4. The supreme court shall consist of three judges, any
two of whom shall be a quorum, and the said judges shall be
conservators of the peace throughout the state.
10. - 5. The state shall be divided into convenient districts,
not to exceed four; in each of which the supreme court shall
hold two sessions annually, at such place as the general assembly
shall appoint; and when sitting in either district, it shall
exercise jurisdiction over causes originating in that district
only: provided, however, that the general assembly may, at any
time hereafter, direct by law, that the said court shall be held
at one place only.
11. - 6. The circuit court shall have jurisdiction over all
criminal cases which shall not be otherwise provided for by law;
and exclusive original jurisdiction in all civil cases which
shall not be cognizable before justices of the peace, until
otherwise directed by the general assembly. It shall hold its
terms in such place in each county as may be by law directed.
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12. - 7. The state shall be divided into convenient circuits,
for each of which a judge shall be appointed, who, after his
appointment, shall reside, and be a conservator of the peace,
within the circuit for which he shall be appointed.
13. - 8. The circuit courts shall exercise a superintending
control over all such inferior tribunals as the general assembly
may establish; and over justices of the peace in each county in
their respective circuits.
14. - 9. The jurisdiction of the court of chancery shall be
co-extensive with the state and the times and places of holding
its sessions shall be regulated in the same manner as those of
the supreme court.
15. - 10. The court of chancery shall have original and
appellate jurisdiction in all matters of equity, and a general
control over executors, administrators, guardians, and minors,
subject to appeal, in all cases, to the supreme court, under such
limitations as the general assembly may by law provide.
16. - 11. Until the general assembly shall deem it expedient to
establish inferior courts of chancery, the circuit courts shall
have jurisdiction in matters of equity, subject to appeal to the
court of chancery, in such manner, and under such restrictions,
as shall be prescribed by law.
17. - 12. Inferior tribunals shall be established in each
county, for the transaction of all county business; for
appointing guardians; for granting letters testamentary, and of
administration; and for settling the accounts of executors,
administrators, and guardians.
18. - 13. The governor shall nominate, and, by and with the
advice and consent of the senate, appoint the judges of the
supreme court, the judges of the circuit courts, and the
chancellor, each of whom shall hold his office during good
behaviour, and shall receive for his services a compensation,
which shall not be diminished during his continuance in office,
and which shall not be less than two thousand dollars annually.
19. - 14. No person shall be appointed a judge in the supreme
court, nor of a circuit court, nor chancellor, before he shall
have attained to the age of thirty years; nor shall any person
continue to exercise the duties of any of said offices after he
shall have attained to the age of sixty-five years.
20. - 15. The courts respectively shall appoint their clerks,
who shall hold their offices during good behaviour. For any
misdemeanor in office, they shall be liable to be tried aud
removed by the Supreme court, in such manner as the general
assembly shall by law provide.
21. - 16. Any judge of the supreme court, or of the circuit
court, or the chancellor, may be removed from office on the
address of two-thirds of each house of the general assembly to
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the governor for that purpose; but each house shall state on its
respective journal the cause for which it shall wish the removal
of such judge or chancellor, and give him notice thereof; and he
shall have the right to be heard in his defence in such manner as
the general assembly shall by law direct; but no judge nor
chancellor shall be removed in this manner for any cause for
which he might have been impeached.
22. - 17. In each county there shall be appointed as many
justices of the peace as the public good may be thought to
require. Their powers and duties, and their duration in office,
shall be regulated by law.
23. - 18. An attorney general shall be appointed by the
governor, by and with the advice and consent of the senate. He
shall remain in office four years, and shall perform such duties
as shall be required of him by law.
24.- 19. All writs and process shall run, and all prosecutions
shall be conducted in the name of the "state of Missouri;" all
writs shall be tested by the clerk of the court from which they
shall be issued, and all indictments shall conclude, "against the
peace and dignity of the state."
MISTAKE, contracts. An error committed in relation to some
matter of fact affecting the rights of one of the parties to a
contract.
2. Mistakes in making a contract are distinguished ordinarily
into, first, mistakes as to the motive; secondly, mistakes as to
the person, with whom the contract is made; thirdly, as to the
subject matter of the contract; and, lastly, mistakes of fact
and of law. See Story, Eq. Jur. §110; Bouv. Inst. Index, h. t.;
Ignorance; Motive.
3. In general, courts of equity will correct and rectify all
mistakes in deeds and contracts founded on good consideration. 1
Ves. 317; 2 Atk. 203; Mitf. Pl. 116; 4 Vin. Ab. 277; 13 Vin.
Ab. 41; 18 E. Com. Law Reps. 14; 8 Com. Digest, 75; Madd. Ch.
Prac. Index, h. t.; 1 Story on Eq. ch. 5, p. 121; Jeremy's Eq.
Jurisd. B. 3, part 2, p. 358. See article Surprise.
4. As to mistakes in the names of legatees, see 1 Rop. Leg.
131; Domat, l. 4, t. 2, s. 1, n. 22. As to mistakes made in
practice, and as to the propriety or impropriety of taking
advantage of them, see Chitt. Pr. Index, h. t. As to mistakes of
law in relation to contracts, see 23 Am. Jur. 146 to 166.
MISTRIAL. An erroneous trial on account of some defect in the
persons trying, as if the jury come from the wrong county or
because there was no issue formed, as if no plea be entered; or
some other defect of jurisdiction. 3 Cro. 284; Hob. 5; 2 M. &
S. 270.
MISUSE OF PROPERTY. The unlawful use of property.
2. The misuse of personal property delivered lawfully to the
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defendant, is a conversion which will enable the owner
immediately to maintain trover. 6 Shepl. 382; 8 Leigh, 565; 3
Bouv. Inst. n. 3525.
MISUSER. An unlawful use of a right.
2. In cases of public officers and corporations, a misuser is
sufficient to cause the right to be forfeited. 2 Bl. Com. 153; 5
Pick. R. 163.
MITIGATION. To make less rigorous or penal.
2. Crimes are frequently committed under circumstances which
are not justifiable nor excusable, yet they show that the
offender has been greatly tempted; as, for example, when a
starving man steals bread to satisfy his hunger, this
circumstance is taken into consideration in mitigation of his
sentence.
3. In actions for damages, or for torts, matters are frequently
proved in mitigation of damages. In an action for criminal
conversation with the plaintiff's wife, for example, evidence may
be given of the wife's general bad character for want of
chastity; or of particular acts of adultery committed by her,
before she became acquainted with the defendant; 12 Mod. R. 232;
Bull. N. P. 27, 296; Selw. N. P. 25; 1 Johns. Cas, 16: or that
the plaintiff has carried on a criminal conversation with other
women; Bull. N. P. 27; or that the plaintiff's wife has made
the first advances to the defendant, 2 Esp. N. P. C. 562; Selw.
N. P. 25. See 3 Am. Jur. 287, 313; Bouv. Inst. Index, h. t.
4. In actions for libel, although the defendant cannot under
the general issue prove the crime, which is imputed to the
plaintiff, yet he is in many cases allowed to give evidence of
the plaintiff's general character in mitigation of damages. 2
Campb. R. 251; 1 M. & S. 284.
MITIOR SENSUS, construction. The more lenient sense. It was
formerly held in actions for libel and slander, that when two or
more constructions could be put upon the words, one of which
would not be actionable the words were to be so construed, for
verba accipienda sunt in mitiore sensu. 4 Co. 13, 20. It is now,
however, well established, that they are not to be taken in the
more lenient, or more severe sense, but in the sense which fairly
belongs to them, and which they were intended to convey. 2 Campb.
403; 2 T. R. 206.
MITTER, law-French. To put, to send, or to pass; as mitter'
l'estate, to pass the estate; mitter le droit, to pass a right.
2 Bl. Com. 324; Bac. Ab. Release, C; Co. Lit. 193, 273, b.
Mitter a large, to put or, set at large. Law French Dict. h. t.
MITTIMUS, English practice. A writ enclosing a record sent to
be tried in a county palatine; it derives its name from the
Latin word mittimus, "we send." It is the jury process of these
counties, and commands the proper officer of the county palatine
to command the sheriff to summon the jury for the trial of the
cause, and to return the record, &c. 1 M. R. 278; 2 M. R. 88.
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MITTIMUS, crim. law, practice. A precept in writing, under the
hand and seal of a justice of the peace, or other competent
officer, directed to the gaoler or keeper of a prison, commanding
him to receive and safely keep, a person charged with an offence
therein named until he shall be delivered by due course of law.
Co. Litt. 590.
MIXED. To join; to mingle. A compound made of several simples
is said to be something mixed.
MIXED ACTIONS, practice. An action partaking of a real and
personal action by which real property is demanded, and damages
for a wrong sustained: an ejectment is of this nature. 4 Bouv.
Inst. n. 3650.
MIXED OR COMPOUND LARCENY, crim. law. A larceny which has all
the properties of simple larceny, and is accompanied with one or
both the aggravations of violence to the person or taking from
the house.
MIXED GOVERNMENT. A government composed of some of the powers
of a monarchical, aristocratical, and democratical government.
See Government.
MIXED PROPERTY. That kind of property which is not altogether
real nor personal, but a compound of both. Heir-looms,
tomb-stones, monuments in a church, and title deeds to an estate,
are of this nature. 1 Ch. Pr. 95; 2 Bl. Com. 428; 3 Barn.
Adolph. 174; 4 Bingh. R. 106; S. C. 13 Engl. Com. Law Rep. 362.
MIXT CONTRACT, civil law. One in which one of the parties
confers a benefit on the other, and requires of the latter
something of less value than what he has given; as a legacy
charged with something of less value than the legacy itself.
Poth. Oblig. n. 12. See Contract.
MIXTION. The putting of different goods or chattels together in
such a manner that they can no longer be separated; as putting
the wines of two different persons into the same barrel, the
grain of several persons into the same bag, and the like. 2. The
intermixture may be occasioned by the wilful act of the party, or
owner of one of the articles; by the wilful act of a stranger;
by the neglilence of the owner or a stranger; of by accident.
See, as to the rights of the parties under each of these
circumstances, the article Confusion of goods. Vide Aso & Man.
Inst. B. 2, t.
MOBBING AND RIOTING, Scotch law. The general term mobbing and
rioting includes all those convocations of the lieges for violent
and unlawful purposes, which are attended with injury to the
persons or property of the lieges, or terror and alarm to the
neighborhood in which it takes place. The two phrases are usually
placed together, but, nevertheless, they have distinct meanings,
and are sometimes used separately in legal language; the word
mobbing being peculiarly applicable to the unlawful assemblage
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and violence of a number of persons, and that of rioting to the
outrageous behaviour of a single individual. Alison, Prin. C. Law
of Scotl. c. 23, p. 509.
MODEL. A machine made on a small scale to show the manner in
which it is to be worked or employed.
2. The Act of Congress of July 4, 1836, section 6, requires an
inventor who is desirous to take out a patent for his invention,
to furnish a model of his invention, in all cases which admit of
represent ation by model, of a convenient size to exhibit
advantageously its several parts.
MODERATE CASTIGAVIT, pleading. The name of a plea in trespass
by which the defendant justifies an assault and battery, because
he moderately corrected the plaintiff, whom he had a right to
correct. 2 Chit. Pl. 676; 2 Bos. & Pull. 224. Vide Correction,
and 15 Mass. R. 347; 2 Phil. Ev. 147; Bac. Ab. Assault, &c. C.
2. This plea ought to disclose, in general terms, the cause
which rendered the correction expedient. 3 Salk. 47.
MODERATOR. A person appointed to preside at a popular meeting;
sometimes he is called a chairman.
MODIFICATION. A change; as the modification of a contract. This
may take place at the time of making the contract by a condition,
which shall have that effect; for example, if I sell you one
thousand bushels of corn, upon condition that any crop shall
produce that much, aud it produces only eight hundred bushels,
the contract is modified, it is for eight hundred bushels, and no
more.
12. It may be modified by the consent of both parties, after it
has been made. See 1 Bouv. Inst. n. 733.
MODO ET FORMA, pleading. In manner and form. These words are
used in tendering an issue in a civil case.
2. Their legal effect is to put in issue all material
circumstances and no other, they may therefore be always used
with safety.
3. These words are sometimes of the substance of the issue and
sometimes merely words of form. When they are of the substance of
the issue, they put in issue the circumstances alleged as
concomitants of the principal matter denied by the pleader, such
as time, place, manner, &c. When not of the substance of the
issue they do not put in issue such circumstances. Bac. Ab. Plea,
G 1; Lawes' Pl. 120; Hardr. 39. To determine when they are of
the substance of the issue and when not so, the established
criterion is, that when the circumstances of manner, time, place,
&c. alleged in connexion with the principal fact traversed, are
originally and, in themselves material, and therefore necessary
to be proved as stated, the words modo et forma are of the
substance of the issue, and do, consequently, put those
concomitants in issue; but that when such concomitants or
circumstances are not in themselves material, and therefore not
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necessary to be proved as stated, the words modo et forma, are
not of the substance of the issue, and consequently do not put
them in issue. Lawes on Pl. 120; and see Gould, Pl. c. 6, §22;
Steph. Pl. 213; Dane's Ab. Index, h. t.; Kitch. 232. See Bac.
Ab. Verdict, P; Vin. Ab. Modo et Forma.
MODUS, civil law. Manlier; means; way.
MODUS, eccl. law. Where there is by custom a particular manner
of tithing allowed, different from the general law of taking
tithes in kind, as a pecuniary compensation, or the performance
of labor, or when any means are adopted by which the general law
of tithing is altered, and a new method of taking them is
introduced, it is called a modus decimandi, or special manner of
taking tithes. 2 Bl. Com. 29.
MOHATRA, French law. The name of a fraudulent contract, made to
cover a usurious loan of money.
2. It takes place when an individual buys merchandise from
another oil a credit at a high price, to sell it immediately to
the first seller, or to a third person, who acts as his agent, at
a much less price for cash. 16 Toull. n. 44; 1 Bouv. Inst. n.
1118.
MOIETY. The half of anything; as, if a testator bequeath one
moiety of his estate to A, and the other to B, each shall take an
equal part. Joint tenants are said to hold by moieties. Lit. 125;
3 M. G. & S. 274, 283
MOLESTATION, Scotch law, The name of an action competent to the
proprietor of a landed estate, against those who disturb his
possession, It is chiefly used in questions of commonty, or, of
controverted marches. Ersk. Prin. B. 4, t. 1, n. 48.
MOLITER MANUS IMPOSUIT, pleading. In an action of trespass to
the person, the defendant frequently justifies by pleading that
he used no more force than was necessary to remove the plaintiff
who, was unlawfully in the house of the defendant, and for this
purpose he gently laid his hands upon him, molitur manus
imposuit.
2. This plea may be used whenever the defendant laid hold of
the plaintiff to prevent his committing a breach of the peace.
3. When supported by evidence, it is a complete defence. Ham.
N. P. 149; 2 Chit. Pl. 574, 576; 12 Vin. Ab. 182; Bac. Abr.
Assault and Battery, C 8.
MOLITURA. Toll paid for grinding at a mill; multure. Not used.
MONARCHY, government. That form of government in which the
sovereign power is entrusted to the hands of a single magistrate.
Toull. tit. pr‚l. n. 30. The country governed by a monarch is
also called a monarchy.
MONEY. Gold, silver, and some other less precious metals, in
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the progress of civilization and commerce, have become the common
standards of value; in order to avoid the delay and
inconvenience of regulating their weight and quality whenever
passed, the governments of the civilized world have caused them
to be manufactured in certain portions, and marked with a Stamp
which attests their value; this is called money. 1 Inst. 207; 1
Hale's Hist. 188; 1 Pardess. n. 22; Dom. Lois civ. liv. prel.
t. 3, s. 2, n. 6.
2. For many purposes, bank notes; (q. v.) 1 Y. & J, 380; 3
Mass. 405; 14 Mass. 122; 2 N. H. Rep. 333; 17 Mass. 560; 7
Cowen, 662; 4 Pick. 74; Bravt. 24; a check; 4 Bing. 179; S.
C. 13 E. C. L. R. 295; and negotiable notes; 3 Mass. 405; will
be so considered. To support a count for money had and received,
the receipt by the defendant of bank notes, promissory notes: 3
Mass. 405; 3 Shepl. 285; 9 Pick. 93; John. 132; credit in
account, in the books of a third person; 3 Campb. 199; or any
chattel, is sufficient; 4 Pick. 71; 17 Mass. 560; and will be
treated as money. See 7 Wend. 311; 8 Wend. 641; 7 S. & R. 246;
8 T. R. 687; 3 B. & P. 559; 1 Y. & J. 380.
3. The constitution of the United States has vested in congress
the power "to coin money, and regulate the value thereof." Art.
1, s. 8.
4. By virtue of this constitutional authority, the following
provisions have been enacted by congress.
1. Act of April 2, 1792, 1 Story's L. U. S. 229.
1. §9. That there shall be from time to time, struck and coined
at the said mint, coins of gold, silver, and copper, of the
following denominations, values, and descriptions, viz: Eagles;
each to be of the value of ten dollars, or units, and to contain
two hundred and forty-seven grains and four-eighths of a grain of
pure, or two hundred and seventy grains of standard, gold. Half
eagles; each to be of the value of five dollars, and to contain
one hundred and twenty-three grains and six-eighths of a pure, or
one hundred and thirty-five grains of standard gold. Quarter
eagles; each to be of the value of two dollars and a half
dollar, and to contain sixty-one grains and seven-eighths of a
grain of pure, or sixty-seven grains and four-eighths of a grain
of standard gold. Dollars, or units; each to be of the value of
a Spanish milled dollar, as the same is now current, and to
contain three hundred and seventy-one grains and four-sixteenth
parts of a grain of pure, or four hundred and sixteen grains of
standard silver. Half dollars; each to be of half the value of
the dollar or unit, and to contain one hundred and eighty-five
grains and ten-sixteenth parts of a grain of pure, or two hundred
and eight grains of standard, silver. Quarter dollars; each to
be of one-fourth the value of the dollar, or unit, and to contain
ninety-two grains and thirteen-sixteenth parts of a grain of
pure, or one hundred and four grains of standard, silver. Dimes;
each to be of the value of one-tenth of a dollar, or unit, and to
contain thirty-seven grains and two sixteenth parts of a grain of
pure, or forty-one grains and three-fifth parts of a grain of
standard, silver. Half dimes; each to be of the value of
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one-twentieth of dollar, and to contain eighteen grains and
nine-sixteenth parts of a grain of pure, or twenty grains and
four-fifth parts of a grain of standard, silver. Cents; each to
be of the value of the one-hundredth part of a dollar, and to
contain eleven pennyweights of copper. Half cents; each to be of
the value of half a cent, and to contain five pennyweights and, a
half a pennyweight of copper.
5. - §10. That upon the said coins, respectively, there shall
be the following devises and legends, namely: Upon one side of
each of the said coins there shall be an impression emblematic of
liberty, with an inscription of the word liberty, and the year of
the coinage; and, upon the reverse of each of the gold and
silver coins, there shall be the figure or representation of an
eagle, with this inscription, "United States of America:" and,
upon the reverse of each of the copper coins there shall be an
inscription which shall express the denomination of the piece,
namely, cent or half cent, as the case may require.
6. - §11. That the proportional value of gold to silver in all
coins which shall, by law, be current as money within the United
States, shall be as fifteen to one, according to quantity in
weight, of pure gold or pure silver; that is to say, every
fifteen pounds weight of pure silver shall be of equal value in
all payments, with one pound weight of pure gold; and so in
proportion, as to any greater or less quantities of the
respective metals.
7. - §12. That the standard for all gold coins of the United
States, shall be eleven parts fine to one part alloy: and
accordingly, that eleven parts in twelve, of the entire weight of
each of the said coins, shall consist of pure gold, and the
remaining one-twelfth part of alloy; and the said alloy shall be
composed of silver and copper in such proportions, not exceeding
one-half silver, as shall be found convenient; to be regulated
by the director of the mint for the time being, With the
approbation of the president of the United States, until further
provision shall be made by law. And to the end that the necessary
information may be had in order to the making of such further
provision, it shall be the duty of the director of the mint, at
the expiration of a year after commencing the operations of the
said mint, to report to congress the practice thereof during the
said year, touching the composition of the alloy of the said gold
coins, the reasons for such practice, and the experiments and
observations which shall have been made concerning the effects of
different proportions of silver and copper in the said alloy.
8.- §13. That the standard for all silver coins of the United
States, shall be one thousand four hundred and eighty-five parts
fine to one hundred and seventy-nine parts alloy; and,
accordingly, that one thousand four hundred and eighty-five parts
in one thousand six hundred and sixty-four parts, of the entire
weight of each of the said coins, shall consist of pure silver,
and the remaining one hundred and seventy nine parts of alloy,
which alloy shall be wholly of copper.
U. S. 2376.
9. - 2. Act of June 28, 1834, 4 Sharsw. cont. of Story's Laws
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§1. That the gold coins of the United States shall contain the
following quantities of metal, that is to say: each eagle shall
contain two hundred and thirty-two grains of pure gold, and two
hundred and fifty-eight grains of standard gold; each
half-eagle, one hundred and sixteen grains of pure gold, and one
hundred and twenty-nine grains of standard gold; each quarter
eagle shall contain fifty-eight grains of pure gold, and
sixty-four and a half grains of standard gold; every such eagle
shall be of the value of ten dollars; every such half eagle
shall be of the value of five dollars; and every such quarter
eagle shall be of the value of two dollars and fifty cents; and
the said gold coins shall be receivable in all payments, when of
full weight, according to their respective values; and when of
less than full weight, at less values, proportioned to their
respective actual weights.
10. - §2. That all standard gold or silver deposited for
coinage after the thirty-first of July next, shall be paid for in
coin under the direction of the secretary of the treasury, within
five days from the making of such deposit, deducting from the
amount of said deposit of gold and silver, one-half of one per
centum: Provided, That no deduction shall be made unless said
advance be required by such depositor within forty days.
11. - §3. That all gold coins of the United States, minted
anterior to the thirty-first day of July next, shall be
receivable in all payments at the rate of ninety-four and
eight-tenths of a cent per pennyweight.
12. - 3. Act of January 18, 1837, 4 Sharsw. cont. of Story's
Laws U. S. 2524.
§9. That of the silver coins, the dollar shall be of the
weight of four hundred and twelve and one-half grains; the half
dollar of the weight of two hundred and six and one-fourth
grains; the quarter dollar of the weight of one hundred and
three and one-eighth grains; the dime, or tenth part of a
dollar, of the weight of forty-one and a quarter grains; and the
half dime, or twentieth part of a dollar, of the weight of twenty
grains, and five-eighths of a grain. And that dollars, half
dollars, and quarter dollars, dimes and half dimes, shall be
legal tenders of payment, according to their nominal value, for
any sums whatever.
13. - §10. That of the gold coins, the weight of the eagle
shall be two hundred and fifty-eight grains; that of the half
eagle, one hundred and twenty-nine grains; and that of the
quarter eagle, sixty-four and one-half grain;. And that for all
sums whatever, the eagle shall be a legal tender of payment for
ten dollars; the half eagle for five dollars and the quarter
eagle for two and a half dollars.
14.- §11. That the silver coins heretofore issued at the mint
of the United States, and the gold coins issued since the
thirty-first day of July, one thousand eight hundred and
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thirty-four, shall continue to be legal tenders of payment for
their nominal values, on the same terms as if they were of the
coinage provided for by this act.
15. - §12. That of the copper coins, the weight of the cent
shall be one hundred and sixty-eight grains, and the weight of
the half cent eighty four grains. And the cent shall be
considered of the value of one hundredth part of a dollar, and
the half cent of the value of one two-hundredth part of a dollar.
16. - §13. That upon the coins struck at the mint, there shall
be the following devices and legends; upon one side of each of
said coins, there shall be an impression emblematic of liberty,
with an inscription of the word LIBERTY, and the year of the
coinage; and upon the reverse of each of the gold and silver
coins, there shall be the figure or representation of an eagle,
with the inscription United States of America, and a designation
of the value of the coin; but on the reverse of the dime and
half dime, cent and half cent, the figure of the eagle shall be
omitted.
17. - §38. That all acts or parts of acts heretofore passed,
relating to the mint and coins of the United States, which are
inconsistent with the provisions of this act, be, and the same
are hereby repealed.
18. - 4. Act of March 3, 1825, 3 Story's L. U. S. 2005.
§20. That, if any person or persons shall falsely make, forge,
or counterfeit, or cause or procure to be falsely made, forged,
or counterfeited, or willingly aid or assist in falsely making,
forging, or counterfeiting any coin, in the resemblance or
similitude of the gold or silver coin, which has been, or
hereafter may be, coined at the mint of the United States; or in
the resemblance or similitude of any foreign gold or silver coin
which by law now is, or hereafter may be made current in the
United States; or shall pass, utter, publish, or sell, or
attempt to pass, utter, publish, or sell, or bring into the
United States, from any foreign place, with intent to pass,
utter, publish, or sell, as true, any such false, forged, or
counterfeited coin, knowing the same to be false, forged, or
counterfeited, with intent to defraud any body politic, or
corporate, or any other person or persons, whatsoever; every
person, so offending, shall be deemed guilty of felony, and
shall, on conviction thereof, be punished by fine, not exceeding
five thousand dollars, and by imprisonment, and confinement to
hard labor, not exceeding ten years, according to the,
aggravation of the offence.
19. - §21. That, if any person or persons shall falsely make,
forge, or counterfeit, or cause or procure to be falsely made,
forged or counterfeited, or willingly aid or assist in falsely
making, forging or counterfeiting any coin, in the resemblance or
similitude of any copper coin, which has been, or hereafter may
be, coined at the mint of the United States; or shall pass,
utter, publish, or sell, or attempt to pass, utter, publish or
sell, or bring into the United States, from any foreign place,
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with intent to pass, utter, publish, or sell as true, any such
false, forged, or counterfeited coin, with intent to defraud any
body politic, or corporate, or any other person or persons
whatsoever; every person so offending, shall be deemed guilty of
felony, and shall, on conviction thereof, be punished by fine,
not exeeeding one thousand dollars, and by imprisonment, and
confinement, to hard labor, not exceeding three years. See
generally, 1 J. J. Marsh. 202; 1 Bibb, 330; 2 Wash. 282; 3
Call, 557; 5 S. & R. 48; 1 Dall. 124; 2 Dana, 298; 3 Conn.
534; 4 Harr. & McHen. 199.
20. - 5. Act of March 3, 1849, Minot's Statutes at Large of U.
S. 397.
21. - §1. That there shall be, from time to time, struck and
coined at the mint of the United States, and the branches
thereof, conformably in all respects to law, (except that on the
reverse of the gold dollar the figure of the eagle shall be
omitted), and conformably in all respects to the standard for
gold coins now established by law, coins of gold of the following
denominations and values, viz.: double eagles, each to be of the
value of twenty dollars, or units, and gold dollars, each to be
of the value of one dollar, or unit.
22. - §2. That, for all sums whatever, the double eagle shall
be a legal tender for twenty dollars, and the gold dollar shall
be a legal tender for one dollar.
23. - §3. That all laws now in force in relation to the coins
of the United States, and the striking and coining the same,
shall, so far as applicable, have full force and effect in
relation to the coins herein authorized, whether, the said laws
are penal or otherwise; and whether they are for preventing
counterfeiting or debasement, for protecting the currency, for
regulating and guarding the process of striking and coining, and
the preparations therefor, or for the security of the coin, or
for any other purpose.
24. - §4. That, in adjusting the weights of gold coins
henceforward, the following deviations from the standard weight
shall not be exceeded in any of the single pieces; namely, in
the double eagle, the eagle, and the half eagle, one half of a
grain, and in the quarter eagle, and gold dollar, one quarter of
a grain; and that, in weighing a large number of pieces
together, when delivered from the chief coiner to the treasurer,
and from the treasurer to the depositors, the deviation from the
standard weight shall not exceed three pennyweights in one
thousand double eagles; two pennyweights in one thousand,
eagles; one and one half pennyweights in one thousand half
eagle;; one pennyweight in one thousand quarter eagles; and one
half of a pennyweight in one thousand gold dollars.
25. - 6. Act of March 3, 1851. Minot's Statutes at Large, U. S.
591.
26. - §11. That from and after the passage of this act, it
shall be lawful to coin at the mint of the United States and its
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branches, a piece of the denomination and legal value of three
cents, or three hundredths of a dollar, to be composed of
three-fourths silver and one-fourth copper and to weigh twelve
grains and three eighths of a grain; that the said coin shall
bear such devices as shall be conspicuously different from those
of the other silver coins, and of the gold dollar, but having the
inscription United States of America, and its denomination and
date; and that it shall be a legal tender in payment of debts
for all sums of thirty cents and under. And that no ingots shall
be used for the coinage of the three cent pieces herein
authorized, of which the quality differs more than five
thousandths from the legal standard; and that in adjusting the
weight of the said coin, the following deviations from the
standard weight shall not be exceeded, namely, one half of a
grain in the single piece, and one pennyweight in a thousand
pieces.
MONEY BILLS, legislation. Pills or projects of laws providing
for raising revenue, and for making grants or appropriations of
the public treasure.
2. The first clause of the seventh section of the constitution
of the United States declares, "all bills for raising revenue
shall originate in the house of representatives; but the senate
may propose or concur with amendments, as on other bills." Vide
Story on the Const. §871 to 877.
3. What bills are properly "bills for raising revenue," in the
sense of the constitution, has been matter of some discussion.
Tucker's Black. App. 261 and note; Story, §877. In practice, the
power has been confined to levy taxes in the strict sense of the
words, and has not been understood to extend to bills for other
purposes, which may incidentally create revenue. Story, Ibid.; 2
Elliott's Debates, 283, 284.
MONEY COUNTS, pleadings. The common counts in an action of
assumpsit are so called, because they are founded on express or
implied promises to pay money in consideration of a precedent
debt; they are of four descriptions: 1. The indebitatus
assumpsit. (q. v.) 2. The quantum meruit. (q. v.) 3. The quantum
valebant. (q. v.) and, 4. The account stated. (q. v.) 2. Although
the plaintiff cannot resort to an implied promise when there is a
general contract, yet he may, in many cases, recover on the
common counts, notwithstanding there was a special agreement,
provided it has been executed. 1 Camp. 471; 12 East, 1; 7
Cranch, Rep. 299; 10 Mass. Rep. 287; 7 Johns. Rep. 132; 10
John. Rep. 136; 5 Mass. Rep. 391. It is therefore advisable to
insert the money counts in an action of assumpsit, when suing on
a special contract. 1 Chit. Pl. 333, 4.
MONEY HAD AND RECEIVED. An action of assumpsit will lie to
recover money to which the plaintiff is entitled, and which in
justice and equity, when no rule of policy or strict law prevents
it, the defendant ought to refund to the plaintiff, and which he
cannot with a good conscience retain, on a count for money had
and received. 6 S. & R. 369; 10 S. & R. 219: 1 Dall. 148; 2
Dall. 154; 3 J. J. Marsh. 175; 1 Harr. 447; 1 Harr. & Gill.
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258; 7 Mass. 288; 6 Wend. 290; 13 Wend. 488; Addis. on Contr.
230.
2. When the money has been received by the defendant in
consequence of some tortious act to the plaintiff's property, as
when he cut down the plaintiff's timber and sold it, the
plaintiff may waive the tort and sue in assumpsit for money had
and received. 1 Dall. 122; 1 Blackf. 181; 5 Pick. 285; 1 J. J.
Marsh. 543: 4 Pick. 452; 12 Pick. 120; 4 Binn. 374; 3 Watts,
277; 4 Call, 451.
3. In general the action for money had and received lies only
where money has been received by the defendant. 14 S. & R. 179;
1 Pick. 204; 7 S. & R. 246; 1 J. J. Marsh. 544; 3 J. J. Marsh.
6; 7 J. J. Marsh. 100; 3 Bibb, 378; 11 John. 464. But bank
notes or any other property received as money, will be considered
for this purpose as money. 17 Mass. 560; 3 Mass. 405; 14 Mass.
122; Brayt. 24; 7 Cowen, 622; 4 Pick. 74. See 9 S. & R. 11.
4. No privity of contract between the parties is required in
order to support this action, except that which results from the
fact of one man's having the money of another, which he cannot
conscientiously retain. 17 Mass. 563, 579. See 2 Dall. 54; Mart.
& Yerg. 221; 5 Conn. 71.
MONEY LENT. In actions of assumpsit a count is frequently
introduced in the declaration charging that the defendant
promised to pay the plaintiff for money lent. To recover, the
plaintiff must prove that the defendant received his money, but
it is not indispensable that it should be originally lent. If,
for example, money has been advanced upon a special contract,
which has been abandoned and rescinded, and which cannot be
enforced, the law raises an implied promise from the person who
holds the money to pay it back as money lent. 5 M. & P. 26; 7
Bing. 266; 9 M. & W. 729; 3 M. & W. 434. See 1 Chip. 214; 3 J.
J. Marsh. 37.
MONEY PAID. When one advances money for tbe benefit of another
with his consent, or at his express request, although he be not
benefited by the transaction, the creditor may recover the money
in an action of assumpsit declaring for money paid for the
defendant. 5 S. & R. 9. But one cannot by a voluntary payment of
another's debt make himself creditor of that other. 1 Const. R.
472; 1 Gill. & John. 497; 5 Cowen, 603; 10 John. 361; 14
John. 87; 2 Root, 84; 2 Stow. 500; 4 N. H. Rep. 138; 3 John.
434; 8 John. 436; 1 South. 150.
2. Assumpsit for money paid will not lie where property, not
money, has been paid or received. 7 S. & R. 246; 8 Bibb, 378;
14 S. & R. 179; 10 S. & R. 75; 7 J. J. Marsh. 18. But see 7
Cowen, 662.
3. But where money has been paid to the defendant either for a
just, legal or equitable claim, although it could not have been
enforced at law, it cannot be recovered as money paid. See Money
had and received.
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4. The form of declaring is for "money paid by the plaintiff,
for the use of the defendant and at his request." 1 M. & W. 511.
MONITION, practice. In those courts which use the civil law
process, (as the court of admiralty, whose proceedings are, under
the provisions of the acts of congress, to be according to the
course of the civil law,) it is a process in the nature of a
summons; it is either, general, special, or mixed.
2. - 1. The general monition is a citation or summons to all
persons interested, or, as is commonly said, to the whole world,
to appear and show cause why the libel filed in the case should
not be sustained, and the prayer of relief granted. This is
adopted in prize cases, admiralty suits for forfeitures, and
other suits in rem, when no particular individuals are summoned
to answer. In such cases the taking possession of the property
libeled, and this general citation or nomination, served
according to law, are considered constructive notice to the world
of the pendency of the suit; and the judgment rendered thereupon
is conclusive upon the title of the property which may be
affected. In form, the monition is a warrant of the court, in an
admiralty cause, directed to the marshal or his deputy,
commanding him in the name of the president of the United States,
to give public notice, by advertisements in such newspapers as
the court may select, and by notification to be posted in public
places, that a libel has been filed in a certain admiralty cause
pending, and of the time and place appointed for the trial. A
brief statement of the allegations in the libel is usually
contained in the monition. The monition is served in the manner
directed in the warrant.
3. - 2. A special monition is a similar warrant, directed to
the marshal or his deputy, requiring him to give special notice
to certain persons, named in the warrant, of the pendency of the
suit, the grounds of it, and the time and place of trial. It is
served by delivery of a copy of the warrant, attested by the
officer, to each one of the adverse parties, or by leaving the
same at his usual place of residence; but the service should be
personal if possible. Clerke's Prax. tit. 21; Dunlap's Adm. Pr.
135.
4. - 3. A mixed monition is one which contains directions for a
general monition to all persons interested, aud a special summons
to particular persons named in the warrant. This is served by
newspaper advertisements, by notifications posted in public
places, and by delivery of a copy attested by the officer to each
person specially named, or by leaving it at his usual place of
residence. See Dunlap's Adm. Pr. Index, h. t.; Bett's Adm. Pr.
Index, h. t.
MONITORY LETTER, eccl. law. The process of an official, a
bishop or other prelate having jurisdiction, issued to compel, by
ecclesiastical censures, those who know of a crime or other
matter which requires to be explained, to come and reveal it.
Merl. R‚pert. h. t.
MONOCRACY. A government by one person only.
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MONOCRAT. A monarch who governs alone; an absolute governor.
MONOGAMY. A marriage contracted between one man and one woman,
in exclusion of all the rest of mankind; it is used in
opposition to bigamy and polygamy. (q. v.) Wolff, Dr. de la Nat.
§857. The state of having only one husband or one wife at one
time.
MONOGRAM. A character or cipher composed of one or more letters
interwoven, being an abbreviation of a name.
2. A signature made by a monogram would perhaps be binding,
provided it could be proved to have been made and intended as a
signature. 1 Denio, R. 471. And there seems to be no reason why
such a signature should not be as binding as one which is
altogether illegible. See Initial; Mark; Signature.
MONOMANIA. med. jur. Insanity only upon a particular subject;
and with a single delusion of the mind.
2. The most simple form of this disorder is that in which the
patient has imbibed some single notion, contrary to common sense
and to his own experience, and which seems, and no doubt really
is, dependent on errors of sensation. It is supposed the mind in
other respects retains its intellectual powers. In order to avoid
any civil act done, or criminal responsibility incurred, it must
manifestly appear that the act in question was the effect of
monomania. Cyclop. Pract. Medicine, title Soundness and
Unsoundness of Mind; Dr. Ray on Insanity, §203; 13 Ves. 89; 3
Bro. C. C. 444; 1 Addams' R. 283; Hagg. R. 18; 2 Addams' R.
102; 2 Addams' R. 79, 94, 209; 5 Car. & P. 168; Dr. Burrows on
Insanity, 484, 485. Vide Delusion; Mania; and Trebuchet, Jur.
de la M‚d. 55 to 58.
MONOPOLY, commercial law. This word has various significations.
1. It is the abuse of free commerce by which one or more
individuals have procured the advantage of selling alone all of a
particular kind of merchandise, to the detriment of the public.
2. - 2. All combinations among merchants to raise the price of
merchandise to the injury of the public, is also said to be a
monopoly.
3. - 3. A monopoly is also an institution or allowance by a
grant from the sovereign power of a state, by commission, letters
patent, or otherwise, to any person, or corporation, by which the
exclusive right of buying, selling, making, working, or using
anything, is given. Bac. Abr. h. t.; 3 Inst. 181.
4. The constitutions of Maryland, North Carolina, and
Tennessee, declare that "monopolies are contrary to the genius of
a free government, and ought not to be allowed." Vide art.
Copyyright; Patent.
MONSTER, physiology, persons. An animal which has a
conformation contrary to the order of nature. Dunglison's Human
Physiol. vol. 2, p. 422.
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2. A monster, although born of a woman in lawful wedlock,
cannot inherit. Those who have however the essential parts of the
human form and have merely some defect of coformation, are
capable of inheriting, if otherwise qualified. 2 Bl. Com. 246; 1
Beck's Med. Jurisp. 366; Co. Litt. 7, 8; Dig. lib. 1, t. 5, l.
14; 1 Swift's Syst. 331 Fred. Code, Pt. 1, b. 1, t. 4, s. 4.
3. No living human birth, however much it may differ from human
shape, can be lawfully destroyed. Traill. Med. Jur. 47, see
Briand, M‚d. L‚g. 1ere part. c. 6, art. 2, §3; 1 Foder‚, M‚d.
L‚g. §402-405.
MONSTRANS DE DROIT. Literally showing of right, in the English
law, is a process by which a subject claim from the crown a
restitution of a right. Bac. Ab. Prerogative, E; 3 Bl. 256; 1
And. 181; 5 Leigh's R. 512.
MONSTRANS DE FAIT. Literally, showing of a deed; a profert.
Bac. Ab. Pleas, &c. I 12, n. 1.
MONSTRAVERUNT, WRIT OF, Eng. law. A writ which lies for the
tenants of ancient demesne who hold by free charter, and not for
those tenants who hold by copy of court roll, or by the rod,
according to the custom of the manor. F. N. B. 31.
MONTES PIETATIS, or Monts de Pi‚t‚. The name of institutions
established by public authority for lending money upon pledge of
goods. In those establishments a fund is provided, with suitable
warehouses, and all necessary accommodations. Directors, manage
these concerns. When the money for which the goods pledged is not
returned in proper time, the goods are sold to reimburse the
institutions.
2. These establishments are found principally on the continent
of Europe. With us private persons, called pawnbrokers, perform
this office, sometimes with doubtful fidelity. See Bell's Com. B.
5, c. 2, s. 2.
MONTH. A space of time variously computed, as it is applied to
astronomical, civil or solar, or lunar months.
2. The astronomical month contains one-twelfth part of the time
employed by the sun in going through the zodiac. In law, when a
month simply is mentioned, it is never understood to mean an
astronomical month.
3. The civil or solar month is that which agrees with the
Gregorian calendar, and these months are known by the names of
January, February, March, &c. They are composed of unequal
portions of time. There are seven of thirty-one days each, four
of thirty, and one which is sometimes composed of twenty-eight
days, and in leap years, of twenty-nine.
4. The lunar mouth is composed of twenty-eight days only. When
a law is passed or contract made, and the month is expressly
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stated to be solar or civil, which is expressed by the term
calendar month, or when it is expressed to be a lunar month, no
difficulty can arise; but when time is given for the performance
of an act, and the word month simply is used, so that the
intention of the parties cannot be ascertained then the question
arises, how shall the month be computed? By the law of England a
month means ordinarily, in common contracts, as, in leases, a
lunar month; a contract, therefore, made for a lease of land for
twelve months, would mean a lease for forty-eight weeks only. 2
Bl. Com. 141; 6 Co. R. 62; 6 T. R. 224. A distinction has been
made between "twelve months," and "a twelve-month;" the latter
has been held to mean a year. 6 Co. R. 61.
5. Among the Greeks and Romans the months were Iunar, and
probably the mode of computation adopted in the English law has
been adopted from the codes of these countries. Clef des Lois
Rom. mot Mois.
6. But in mercantile contracts, a month simply signifies a
calendar month; a promissory note to pay money in twelve months,
would therefore mean a promise to pay in one year, or twelve
calendar months. Chit. on Bills, 406; 1 John. Cas. 99; 3 B. &
B. 187; 1 M. & S. 111; Story on Bills, §143; Story, P. N.
§213; Bayl. on Bills, c. 7; 4 Kent, Comm. Sect. 56; 2 Mass.
170; 4 Mass. 460; 6 Watts. & Serg. 179.
7. In general, when a statute Speaks of a month, without adding
"calendar," or other words showing a clear intention, it shall be
intended a lunar month. Com. Dig. Ann. B; 4 Wend. 512; 15 John.
R. 358. See 2 Cowen, R. 518; Id. 605. In all legal proceedings,
as in commitments, pleadings, &c. a month means four weeks. 3
Burr. R. 1455; 1 Bl. Rep. 450; Dougl. R. 446 463.
8. In Pennsylvania and Massachusetts, and perhaps some other
states, 1 Hill. Ab. 118, n., a month mentioned generally in a
statute, has been construed to mean a calendar month. 2 Dall. R.
302; 4 Dall. Rep. 143; 4 Mass. R. 461; 4 Bibb. R. 105. In
England, in the ecclesiastical law, months are computed by the
calendar. 3 Burr. R. 1455; 1 M. & S. 111.
9. In New York, it is enacted that whenever the term "month,"
or "months," is or shall be used in any statute, act, deed,
verbal or written contract, or any public or private instrument
whatever, it shall be construed to mean a calendar, and not a
lunar month; unless otherwise expressed. Rev. Stat. part 1, c.
19, tit. 1, §4. Vide, generally, 2 Sim. & Stu. 476; 2 A. K.
Marsh. Rep. 245; 3 John. Ch. Rep. 74; 2 Campb. 294; 1 Esp. R.
146; 6 T. R. 224; 1 M. & S. 111; 3 East, R. 407; 4 Moore,
465; 1 Bl. Rep. 150; 1 Bing. 307; S. C. 8 Eng. C. L. R. 328;.
1 M. & S. 111; 1 Str. 652; 6 M. & S. 227; 3 Brod. & B. 187;
S. C. 7 Eng. C. L. R. 404.
MONUMENT. A thing intended to transmit to posterity the memory
of some one; it is used, also, to signify a tomb where a dead
body has been deposited. In this sense it differs from a
cenotaph, which is at empty tomb. Dig. 11, 7, 2, 6; Id. 11, 7,
2, 42.
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MONUMENTS. Permanent landmarks established for the purpose of
ascertaining boundaries.
2. Monuments may be either natural or artificial objects, as
rivers, known streams, springs, or marked trees. 7 Wheat. R. 10;
6 Wheat. R. 582; 9 Cranch, 173; 6 Pet. 498; Pet. C. C. R. 64;
3 Ham. 284; 5 Ham. 534; 5 N. H. Rep. 524; 3 Dev. 75. Even
posts set up at the corners, 5 Ham. 534, and a clearing, 7 Cowen,
723, are considered as monuments. Sed vide 3 Dev. 75.
3. When monuments are established, they must govern, although
neither courses, nor distances, nor 'computed' contents
correspond; 5 Cowen, 346; 1 Cowen, 605; 6 Cowen, 706; 7
Cowen, 723; 6 Mass. 131; 2 Mass. 380; 3 Pick. 401; 5 Pick.
135; 3 Gill & John. 142,; 5 Har. & John. 163, 255; 2 Id. 260;
Wright, 176; 5 Ham. 534; 1 H. & McH. 355; 2 H. & McH. 416;
Cooke, 146; 1 Call, 429; 3 Call, 239; 3 Fairf. 325; 4 H. & M.
125; 1 Hayw. 22; 5 J. J. Marsh. 578; 3 Hawks, 91; 3 Murph.
88; 4 Monr. 32; 5 Monr. 175; 2 Overt. 200; 2 Bibb, 493; S.
C. 6 Wheat. 582; 4 W. C. C. Rep. 15. Vide Boundary.
MOORING, mar. law. The act of arriving of a ship or vessel at a
particular port, and there being anchored or otherwise fastened
to the shore.
2. Policies of insurance frequently contain a provision that
the ship is insured from one place to another, "and till there
moored twenty-four hours in good safety." As to what shall be a
sufficient mooring, see 1 Marsh. Ins. 262; Park. on Ins. 35; 2
Str. 1251; 3. T. R. 362.
MOOT, English law. A term used in the inns of court, signifying
the exercise of arguing imaginary cases, which young barristers
and students used to perform at certain times, the better to be
enabled by this practice to defend their clients cases. A moot
question is one which has not been decided.
MORA, In civil law. This term, in morƒ, is used to denote that
a party to a contract, who is obliged to do anything, has
neglected to perform it, and is in default. Story on Bailm. §123,
259; Jones on Bailm. 70; Poth. Pr‚t a Usage, c. 2, §2, art. 2,
n. 60; Encyclop‚die, mot Demeure; Broderode, mot Morƒ.
MORA, estates. A moor, barren or unprofitable ground; marsh;
a heath. 1 Inst. 5; Fleta, lib. 2, c. 71.
MORAL EVIDENCE. That evidence which is not obtained either from
intuition or demonstration. It consists of those convictions of
the mind, which are produced by the use of the senses, the
testimony of men, and analogy or induction. It is used in
contradistinction to mathematical, evidence. (q. v.) 3 Bouv.
Inst. n. 3050.
MORAL INSANITY, med. jur. A term used by medical men, which has
not yet acquired much reputation in the courts. Moral insanity is
said to consist in a morbid perversion of the moral feelings,
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affections, inclinations, temper, habits, and moral dispositions,
without any notable lesion of the intellect, or knowing and
reasoning faculties, and particularly without any maniacal
hallucination. Prichard, art. Insanity, in Cyclopaedia of
Practical Medicine
2. It is contended that some human beings exist, who, in
consequence of a deficiency in the moral organs, are as blind to
the dictates of justice, as others are deaf to melody. Combe,
Moral Philosophy, Lect. 12.
3. In some, this species of malady is said to display itself in
an irresistible propensity to commit murder; in others, to
commit theft, or arson. Though most persons afflicted with this
malady commit such crimes, there are others whose disease is
manifest in nothing but irascibility. Annals D'HygiŠne tom. i. p.
284. Many are subjected to melancholy, and dejection, without any
delusion or illusion. This, perhaps without full consideration,
has been judicially declared to be a "groundless theory." The
courts, and law writers, have not given it their full assent. 1
Chit. Med. Jur. 352; 1 Beck, Med. Jur. 553 Ray, Med. Jur. Prel.
Views, §23, p. 49.
MORAL OBLIGATION. A duty which one owes, and which he ought to
perform, but which he is not legally bound to fulfil.
2. These obligations are of two kinds 1st. Those founded on a
natural right; as, the obligation to be charitable, which can
never be enforced by law. 2d. Those which are supported by a good
or valuable antecedent consideration; as, where a man owes a
debt barred by the act of limitations, this cannot be recovered
by law, though it subsists in morality and conscience; but if
the debtor promise to pay it, the moral obligation is a
sufficient consideration for the promise, and the creditor may
maintain an action of assumpsit, to recover the money. 1 Bouv.
Inst. n. 623.
MORATUR, IN LEGE. He demurs in law. He rests on the pleadings
of the case, and abides the judgment of the court.
MORGANTIC MARRIAGE. During the middle ages, there was an
intermediate estate between matrimony and concubinage, known by
this name. It is defined to be a lawful and inseparable
conjunction of a single man, of noble and illustrious birth, with
a single woman of an inferior or plebeian station, upon this
condition, that neither the wife nor children should partake of
the title, arms, or dignity of the husband, nor succeed to his
inheritance, but should have a certain allowance assigned to them
by the morgantic contract. The marriage ceremony was regularly
performed; the union: was for life and indissoluble; and the
children were considered legitimate, though they could not
inherit. Fred. Code, book 2, art. 3; Potb. Du Marriage, 1, c. 2,
s. 2; Shelf. M. & D. 10; Pruss. Code, art. 835.
MORT D'ANCESTOR. An ancient and now almost obsolete remedy in
the English law. An assize of mort d'ancestor was a writ which
was sued out where, after the decease of a man's ancestor, a
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stranger abated, and entered into the estate. 1, Co. Litt. 159.
The remedy in such case is now to bring ejectment.
MORTGAGE, contracts, conveyancing. Mortgages are of several
kinds: as the concern the kind of property, mortgaged, they are
mortgages of lands, tenements, and, hereditaments, or of goods
and chattels; as they affect the title of the thing mortgaged,
they are legal and equitable.
2. In equity all kinds of property; real or personal, which
are capable of an absolute sale, may be the subject of a
mortgage; rights in remainder and reversion, franchises, and
choses in action, may, therefore, be mortgaged; But a mere
possibility or expectancy, as that of an heir, cannot. 2 Story,
Eq. Jur. §1021; 4 Kent, Com. 144; 1 Powell, Mortg. 17, 23; 3
Meri. 667.
3. A legal mortgage of lands may be described to be a
conveyance of lands, by a debtor to his creditor, as a pledge and
security for the repayment of a sum of money borrowed, or
performance of a covenant; 1 Watts, R. 140; with a proviso,
that such conveyance shall be void on payment of the money and
interest on a certain day, or the performance of such covenant by
the time appointed, by which the conveyance of the land becomes
absolute at law, yet the, mortgagor has an equity of redemption,
that is, a right in equity on the performance of the agreement
within a reasonable time, to call for a re-conveyance of the
land. Cruise, Dig. t. 15, c. 1, s. 11; 1 Pow. on Mortg. 4 a, n.;
2 Chip. 100; 1 Pet. R. 386; 2 Mason, 531; 13 Wend. 485; 5
Verm. 532; 1 Yeates, 579; 2 Pick. 211.
4. It is an universal rule in equity that once a mortgage,
always a mortgage; 2 Cowen, R. 324; 1 Yeates, R. 584; every
attempt, therefore, to defeat the equity of redemption, must
fail. See Equity of Redemption.
5. As to the form, such a mortgage must be in writing, when it
is intended to convey the legal title. 1 Penna. R. 240. It is
either in one single deed which contains the whole contract - and
which is the usual form - or, it is two separate instruments, the
one containing an absolute conveyance, and the other a
defeasance. 2 Johns. Ch. Rep. 189; 15 Johns. R. 555; 2 Greenl.
R. 152; 12 Mass. 456; 7 Pick. 157; 3 Wend, 208; Addis. 357;
6 Watts, 405; 3 Watts, 188; 3 Fairf. 346; 7 Wend. 248. But it
may be observed in general, that whatever clauses or covenants
there are in a conveyance, though they seem to import an absolute
disposition or conditional purchase, yet if, upon the whole, it
appears to have been the intention of the parties that such
conveyance should be a mortgage only, or pass an estate
redeemable, a court of equity will always so construe it. Vern.
183, 268, 394; Prec Ch. 95; 1 Wash. R 126; 2 Mass. R. 493; 4
John. R. 186; 2 Cain. Er. 124.
6. As the money borrowed on mortgage is seldom paid on the day
appointed, mortgages have now become entirely subject to the
court of chancery, where it is an established rule that the
mortgagee holds the estate merely as a pledge or security for the
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repayment of his money; therefore a mortgage is considered in
equity as personal estate.
7. The mortgagor is held to be the real owner of the land, the
debt being considered the principal, and the land the accessory;
whenever the debt is discharged, the interest of the mortgagee in
the lands determines of course, and he is looked on in equity as
a trustee for the mortgagor.
8. An equitable mortgage of lands is one where the mortgagor
does not convey regularly the land, but does some act by which he
manifests his determination to bind the same for the security of
a debt he owes. An agreement in writing to transfer an estate as
a security for the repayment of a sum of money borrowed, or even
a deposit of title deeds, and a verbal agreement, will have the
same effect of creating an equitable mortgage. 1 Rawle, Rep. 328;
5 Wheat. R. 284; 1 Cox's Rep. 211. But in Pennsylvania there is
no such a thing as an equitable mortgage. 3 P. S. R. 233. Such an
agreement will be carried into execution in equity against the
mortgagor, or any one claiming under him with notice, either
actual or constructive, of such deposit having been made. 1 Bro.
C. C. 269; 2 Dick. 759; 2 Anstr. 427; 2 East, R. 486; 9 Ves.
jr. 115; 11 Ves. jr. 398, 403; 12 Ves. jr. 6, 192; 1 John.
Cas. 116; 2 John. Ch. R. 608; 2 Story, Eq. Jur. §1020. Miller,
Eq. Mortg. passim.
9. A mortgage of goods is distinguishable from a mere pawn. 5
Verm. 532; 9 Wend. 80; 8 John. 96. By a grant or conveyance of
goods in gage or mortgage, the whole legal title passes
conditionally to the mortgagee, and if not redeemed at the time
stipulated, the title becomes absolute at law, though equity will
interfere to compel a redemption. But, in a pledge, a special
property only passes to the pledgee, the general property
remaining in the pledger. There have been some cases of mortgages
of chattels, which have been held valid without any actual
possession in the mortgagee; but they stand upon very peculiar
grounds and may be deemed exceptions to the general rule. 2 Pick.
R. 607; 5 Pick. R. 59; 5 Johns. R. 261; Sed vide 12 Mass. R.
300; 4 Mass. R. 352; 6 Mass. R. 422; 15 Mass. R. 477; 5 S. &
R. 275; 12 Wend. 277: 15 Wend. 212, 244; 1 Penn. 57. Vide,
generally,, Powell on Mortgages; Cruise, Dig. tit. 15; Viner,
Ab. h. t.; Bac. Ab. h. t., Com. Dig. h. t.; American Digests,
generally, h. t.; New, York Rev. Stat. p. 2, c. 3; 9 Wend. 80;
9 Greenl. 79; 12 Wend. 61; 2 Wend. 296; 3 Cowen, 166; 9 Wend.
345; 12 Wend. 297; 5 Greenl. 96; 14 Pick. 497; 3 Wend. 348;
2 Hall, 63; 2 Leigh, 401; 15 Wend. 244; Bouv. Inst. Index, h.
t.
10. It is proper to, observe that a conditional sale with the
right to repurchase very nearly resembles a mortgage; but they
are distinguishable. It is said that if the debt remains, the
transaction is a mortgage, but if the debt is extinguished by
mutual agreement, or the money advanced is not loaned, but the
grantor has a right to refund it in a given time, and have a
reconveyance, this is a conditional sale. 2 Edw. R. 138; 2 Call,
R. 354; 5 Gill & John. 82; 2 Yerg. R. 6; 6 Yerg. R. 96; 2
Sumner, R. 487; 1 Paige, R. 56; 2 Ball & Beat. 274. In cases of
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doubt, however, courts of equity will always lean in favor of a
mortgage. 7 Cranch, R. 237; 2 Desaus. 564.
11. According to the laws of Louisiana a mortgage is a right
granted to the creditor over the property of his debtor, for the
security of his debt, and gives him the power of having the
property seized and sold in default of payment. Civ. Code of Lo.
art. 3245.
12. Mortgage is conventional, legal or judicial. 1st. The
conventional mortgage is a contract by which a person binds the
whole of his property, or a portion of it only, in favor of
another, to secure the execution of some engagement, but without
divesting himself of the possession. Civ. Code, art. 3257.
13. - 2d. Legal mortgage is that which is created by operation
of law: this is also called tacit mortgage, because it is
established by the law, without the aid of any agreement. Art.
3279. A few examples will show the nature of this mortgage.
Minors, persons interdicted, and absentees, "have a legal
mortgage on the property of their tutors and curators, as a
security for their administration; and the latter have a
mortgage on the property of the former for advances which they
have made. The property of persons who, without being lawfully
appointed curators or tutors of minors, &c., interfere with their
property, is bound by a legal mortgage from the day on which the
first act of interference was done.
14. - 3d. The judicial mortgage is that 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. Art. 3289.
15. Mortgage, with respect to the manner in which it binds the
property, is divided into general mortgage, or special mortgage.
General mortage is that which binds all the property, present or
future, of the debtor. Special mortgage is that which binds only
certain specified property. Art. 3255.
16. The following objects are alone susceptible of mortgage:
1. Immovables, subject to alienation, and their accessories
considered likewise as immovable. 2. The usufruct of the same
description of property with its accessories during the time of
its duration. 3. Slave's. 4. Ships and other vessels. Art. 3256.
MORTGAGEE, estates, contracts. He to whom a mortgage is made.
2. He is entitled to the payment of the money secured to him by
the mortgage; he has the legal estate in the land mortgaged, and
may recover it in ejectment, on the other hand he cannot commit
waste; 4 Watts, R. 460; he cannot make leases to the injury of
the mortgagor; and he must account for the profits he receives
out of the thing mortgaged when in possession. Cruise, Dig. tit.
15, c. 2.
MORTGAGOR, estate's, contracts. He who makes a mortgage.
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2. He has rights, and is liable to certain duties as such. 1.
He is quasi tenant, at will; he is entitled to an equity of
redemption after forfeiture. 2. He cannot commit waste, nor make
a lease injurious to the mortgagee. As between the mortgagor and
third persons, the mortgagor is owner of the land. Dougl. 632; 4
M'Cord, R. 310; 3 Fairf. R. 243; but see 3 Pick. R. 204; 1 N.
H. Rep. 171; 2 N. H. Rep. 16; 10 Conn. R. 243; 1 Vern. 3; 2
Vern. 621; 1 Atk. 605. He can, however, do nothing which will
defeat the rights of the mortgagee, as, to make a lease to bind
him. Dougl. 21. Vide Mortgagee; 2 Jack. & Walk. 194.
MORTIFICATION, Scotch law. This term is nearly synonymous with
mortmain.
MORTMAIN. An unlawful alienation of lands, or tenements to any
corporation, sole or aggregate, ecclesiastical or temporal. These
purchases having been chiefly made by religious houses, in
consequence of which lands became perpetually inherent in one
dead hand, this has occasioned the general appellation of
mortmain to be applied to such alienations. 2 Bl. Com. 268; Co.
Litt. 2 b; Ersk. Inst. B. 2, t. 4, s. 10; Barr. on the Stat.
27, 97.
2. Mortmain is also employed to designate all prohibitory laws,
which limit, restrain, or annul gifts, grants, or devises of
lands and other corporeal hereditaments to charitable uses. 2
Story, Eq. Jur. §1137, note 1. See Shelf. on Mortm. 2, 3.
MORTUARIES, Eng. law. These are a sort of ecclesiastical
heriots, being a customary gift claimed by and due to the
minister, in many parishes, on the death of the parishioner. 2
Bl. Com. 425.
MORTUUM VADIUM. A mortgage; a dead pledge
MORTUUS EST. A return made by the sheriff, when the defendant
is dead, as an excuse for not executing the writ. 4 Watts, 270,
276.
MOTHER, domestic relations. A woman who has borne a child.
2. It is generally the duty of a mother to support her child,
when she is left a widow, until he becomes of age, or is able to
maintain himself; 8 Watts, R. 366; and even after he becomes of
age, if he be chargeable to the public, she may, perhaps, in all
the states, be compelled, when she has sufficient means, to
support him. But when the child has property sufficient for his
support, she is not, even during his minority, obliged to
maintain him. 1 Bro. C. C. 387; 2 Mass. R. 415; 4 Miss. R. 97.
3. When the father dies without leaving a testamentary
guardian, at common law, the mother is entitled to be the
guardian of the person and estate of the infant, until he arrives
at fourteen years, when he is able to choose a guardian. Litt.
sect. 123; 3 Co. 38; Co. Litt. 84 b; 2 Atk. 14; Com Dig. B,
D, E; 7 Ves. 348. See 10 Mass. 135, 140; 15 Mass. 272; 4 Binn.
487; 4 Stew. & Part. 123; 2 Mass. 415; Harper, R. 9; 1 Root,
R. 487.
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4. In Pennsylvania, the orphans' court will, in such case,
appoint a guardian until the infant shall attain his fourteenth
year. During the joint lives of the parents, (q. v.) the father
(q. v.) is alone responsible for the support of the children;
and has the only control over them, except when in special cases
the mother is allowed to have possession of them. 1 P. A.
Browne's Rep. 143; 5 Binn. R. 520; 2 Serg. & Rawle 174. Vide 4
Binn. R. 492, 494.
5. The mother of a bastard child, as natural guardian, has a
right to the custody and control of such child, and is bound to
maintain it. 2 Mass. 109; 12 Mass. 387, 433; 2 John. 375; 15
John. 208; 6 S. & R. 255; 1 Ashmead, 55.
MOTHER-IN-LAW. In Latin socrus. The mother of one's wife, or of
one's husband.
MOTION, practice. An application to a court by one of the
parties in a cause, or his counsel, in order to obtain some rule
or order of court, which he thinks becomes necessary in the
progress of the cause, or to get relieved in a summary manner,
from some matter which would work injustice.
2. When the motion. is made on some matter of fact, it must be
supported by an affidavit that such facts are true; and for this
purpose, the party's affidavit will be received, though, it
cannot be read on the hearing. 1 Binn. R. 145; S. P. 2 Yeates'
R. 546. Vide 3 Bl. Com. 304; 2 Sell. Pr. 356; 15 Vin. Ab. 495;
Grah. Pr. 542; Smith's Ch. Pr. Index, h. t.
MOTIVE. The inducement, cause or reason why a thing is done.
2. When there is such a mistake in the motive, that had the
truth been known, the contract would pot have been made, it is
generally void., For example, if a man should, after the death of
Titius, of which he was ignorant, insure his life, the error of
the motive would avoid the contract. Toull. Dr. Civ. Fr. liv. 3,
c. 2, art. 1. Or, if Titius should sell to Livius his horse,
which both parties supposed to be living at some distance from
the place where the contract was made, when in fact, the horse
was then dead, the contract would be void. Poth. Vente, n. 4; 2
Kent, Com. 367. When the contract is entered into under
circumstances of clear mistake or surprise, it will not be
enforced. See the following authorities on this subject. 1 Russ.
& M. 527; 1 Ves. jr. 221; 4 Price, 135; 1 Ves. jr. 210;
Atkinson on Titl. 144. Vide Cause; Consideration.
3. The motive of prosecutions is frequently an object of
inquiry, particularly when the prosecutor is a witness, and in
his case, as that of any other witness, when the motion is
ascertained to be bad, as a desire of revenge for a real or
supposed injury, the credibility of the witness will be much
weakened, though this will not alone render him incompetent. See
Evidence; Witness.
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MOURNING. This word has several significations. 1. It is the
apparel worn at funerals, and for a time afterwards, in order to
manifest grief for the death of some one, and to honor his
memory. 2. The expenses paid for such apparel.
2. It has been held in England, that a demand for mourning
furnished to the widow and family of the testator, is not a
funeral expense. 2 Carr. & P. 207. Vide 14 Ves. 346; 1 Ves. &
Bea. 364. See 2 Bell's Comm. 156.
MOVABLES, estates. Such subjects of property as attend a man's
person wherever he goes, in contradistinction to things
immovable. (q. v.)
2. Things movable by their nature are such as may be carried
from one place to another, whether they move themselves, as
cattle, or cannot be removed without an extraneous power, as
inanimate things. Movables are further distinguished into such as
are in possession, or which are in the power of the owner, as, a
horse in actual use, a piece of furniture in a man's own house;
or such as are in the possession of another, and can only be
recovered by action, which are therefore said to be in action, as
a debt. Vide art. Personal Property, and Fonbl. Eq. Index, h. t.;
Pow. Mortg. Index, h. t.; 2 Bl. Com. 884; Civ. Code of Lo. art.
464 to 472; 1 Bouv. Inst. n. 462.
MULATTO. A person born of one white and one black parent. 7
Mass. R. 88; 2 Bailey, 558.
MULCT, punishment. A fine imposed on the conviction of an
offence.
MULCT, commerce. An imposition laid on ships or goods by a
company of trade, for the maintenance of consuls and the like.
Obsolete.
MULIER. A woman, a wife; sometimes it is used to designate a
marriageable virgin, and in other cases the word mulier is
employed in opposition to virgo. Poth. Pand. tom. 22, h. t. In
its most proper signification, it means a wife.
2. A son or a daughter, born of a lawful wife, is called filius
mulieratus or filia mulierata, a son mulier, or a daughter
mulier. The term is used always in contradistinction to a
bastard; mulier being always legitimate. Co. Litt. 243.
3. When a man has a bastard son, and afterwards marries the
mother, and has by her another son, the latter is called the
mulier puisne. 2 Bl. Com. 248.
MULTIFARIOUSNESS, equity pleading. By multifariousness in a
bill, is understood the improperly joining in one bill distinct
matters, and thereby confounding them; as, for example, the
uniting in one bill, several matters, perfectly distinct and
unconnected, against one defendant; or the demand of several
matters of distinct natures, against several defendants in the
same bill. Coop. Eq. Pl. 182; Mitf. by Jeremy, 181; 2 Mason's
R. 201; 18 Ves. 80; Hardr. R. 337; 4 Cowen's R. 682; 4 Bouv.
Inst. n. 4165.
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2. In order to prevent confusion in its pleadings and decrees,
a court of equity will anxiously discountenance this
multifariousness. The following case will illustrate this
doctrine; suppose an estate should be sold in lots to different
persons, the purchasers could not join in exhibiting one bill
against the vendor for a specific performance; for each party's
case would be distinct, and would depend upon its own peculiar
circumstances, and therefore there should be a distinct bill upon
each contract; on the other hand, the vendor in the like case,
would not be allowed to file one bill for a specific performance
against all the purchasers of the estate, for the same reason.
Coop. Eq. Pl. 182; 2 Dick. Rep. 677; 1 Madd. Rep. 88; Story's
Eq . PI. §271 to 286. It is extremely difficult to say what
constitutes multifariousness as an abstract proposition. Story,
Eq. Pl. §530, 539; 4 Blackf. 249; 2 How. S. C. Rep. 619, 642;
4 Bouv. Inst. n. 4243.
MULTITUDE. The meaning of this word is not very certain. By
some it is said that to make a multitude there must be ten
persons at least, while others contend that the law has not fixed
any number. Co. Litt. 257.
MULTURE, Scotch law. The quantity of grain or meal payable to
the proprietor of the mill, or to the multurer, his tacksman, for
manufacturing the corns. Ersk. Prin. Laws of Scotl. B. 2 t. 9, n.
19.
MUNERA. The name given to grants made in the early feudal ages,
which were mere tenancies at will, or during the pleasure of the
grantor. Dalr. Feud. 198, 199; Wright on Ten. 19.
MUNICIPAL. Strictly, this word applies only to what belongs to
a city. Among the Romans, cities were called municipia; these
cities voluntarily joined the Roman republic in relation to their
sovereignty only, retaining, their laws, their liberties, and
their magistrates, who were thence called municipal magistrates.
With us this word has a more extensive meaning; for example, we
call municipal law, not the law of a city only, but the law of
the state. 1 Bl. Com. Municipal is used in contradistinction to
international; thus we say an offence against the law of nations
is an international offence, but one committed against a
particular state or separate community, is a municipal offence.
MUNICIPALITY. The body of officers, taken collectively,
belonging to a city, who are appointed to manage its affairs and
defend its interests.
MUNIMENTS. The instruments of writing and written evidences
which the owner of lands, possessions, or inheritances has, by
which he is enabled to defend the title of his estate. Termes de
la Ley, h. t.; 3 Inst. 170.
MURAGE. A toll formerly levied in England for repairing or
building public walls.
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MURAL MONUMENTS. Monuments made in walls.
2. Owing to the difficulty or impossibility of removing them,
secondary evidence may be given of inscriptions on walls, fixed
tables, gravestones, and the like. 2 Stark. Rep. 274.
MURDER, crim. law. This, one of the most important crimes that
can be committed against individuals, has been variously defined.
Hawkins defines it to be the wilful killing of any subject
whatever, with malice aforethought, whether the person slain
shall be an Englishman or a foreigner. B. 1, c. 13, s. 3. Russell
says, murder is the killing of any person under the king's peace,
with malice prepense or aforethought, either express or implied
by law. 1 Rus. Cr. 421. And Sir Edward Coke, 3 Inst. 47, defines
or rather describes this offence to be, " when a person of sound
mind and discretion, unlawfully killeth any reasonable creature
in being, and under the king's peace, with malice aforethought
either express or implied."
2. This defnition, which has been adopted by Blackstone, 4 Com.
195; Chitty, 2 Cr. Law, 724; and others, has been severely and
perhaps justly criticised. What, it has been asked, are sound
memory and understanding? What has soundness of memory to do with
the act; be it ever so imperfect, how does it affect the guilt?
If discretion is necessary, can the crime ever be committed, for,
is it not the highest indiscretion in a man to take the life of
another, and thereby expose his own? If the person killed be an
idiot or a new born infant, is he a reasonable creature? Who is
in the king's peace? What is malice aforethought? Can there be
any malice afterthought? Livingst. Syst. of Pen. Law; 186.
3. According to Coke's definition there must be, lst. Sound
mind and memory in the agent. By this is understood there must be
a will, (q. v.) and legal discretion. (q. v.) 2. An actual
killing, but it is not necessary that it should be caused by
direct violence; it is sufficient if the acts done apparently
endanger. life, and eventually fatal. Hawk. b. 1, c. 31, s. 4; 1
Hale, P. C. 431; 1 Ashm. R. 289; 9 Car. & Payne, 356; S. C. 38
E. C. L. R. 152; 2 Palm. 545. 3. The party killed must have been
a reasonable being, alive and in the king's peace. To constitute
a birth, so as to make the killing of a child murder, the whole
body must be detached from that of the mother; but if it has
come wholly forth, but is still connected by the umbilical chord,
such killing will be murder. 2 Bouv. Inst. n. 1722, note.
Foeticide (q. v.) would not be such a killing; he must have been
in rerum natura. 4. Malice, either express or implied. It is this
circumstance which distiuguishes murder from every description of
homicide. Vide art. Malice. 4. In some of the states, by
legislative enactments, murder has been divided into degrees. In
Pennsylvania, the act of April 22, 1794, 3 Smith's Laws, 186,
makes "all murder which shall be perpetrated by means of poison,
or by lying in wait, or by any other kind of wilful, deliberate,
and premeditated killing, or which shall be committed in the
perpetration or attempt to perpetrate, any arson, rape, robbery,
or burglary, shall be deemed murder of the first degree; and all
other kinds of murder shall be deemed murder of the second
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degree; and the jury before whom any person indicted for murder
shall be tried, shall, if they find the person guilty thereof,
ascertain in their verdict, whether it be murder of the first or
second degree; but if such person shall be convicted by
confession, the court shall proceed by examination of witnesses,
to determine the degree of the crime, and give sentence
accordingly. Many decisions have been made under this act to
which the reader is referred: see Whart. Dig. Criminal Law, h.
t.
5. The legislature of Tennessee has adopted the same
distinction in the very words of the act of Pennsylvania just
cited. Act of 1829, 1 Term. Laws, Dig. 244. Vide 3 Yerg. R. 283;
5 Yerg. R. 340.
6. Virginia has adopted the same distinction. 6 Rand. R. 721.
Vide, generally, Bac. Ab. h. t.; 15 Vin. Ab. 500; Com. Dig.
Justices, M 1, 2; Dane's Ab. Index, h. t.; Hawk. Index, h. t.;
1 Russ. Cr. b. 3, c. 1; Rosc. Cr. Ev. h. t. Hale, P. C. Index,
h. t.; 4 Bl. Com. 195; 2 Swift's Syst. Index, h. t.; 2 Swift's
Dig. Index, h. t.; American Digests, h. t.; Wheeler's C. C.
Index, h. t.; Stark. Ev. Index, h. t.; Chit. Cr. Law, Index, h.
t.; New York Rev. Stat. part 4, c. 1, t. 1 and 2.
MURDER, pleadings. In an indictment for murder, it must be
charged that the prisoner "did kill and murder" the deceased, and
unless the word murder be introduced into the charge, the
indictment will be taken to charge manslaughter only. Foster,
424; Yelv. 205; 1 Chit. Cr. Law, *243, and the authorities and
cases there cited.
MURDRUM, old Engl. law. During the times of the Danes, and
afterwards till the reign of Edward III, murdrum was the killing
of a man in a secret manner, and in that it differed from simple
homicide.
2. When a man was thus killed, and he was unknown, by the laws
of Canute he was presumed to be a Dane, and the vill was
compelled to pay forty marks for his death. After tlie conquest,
a similar law was made in favor of Frenchmen, which was abolished
by 3 Edw. III.
3. By murdrum was also understood the fine formerly imposed in
England upon a person who had committed homicide perinfortunium
or se defendendo. Prin. Pen. 219, note r.
MUSICAL COMPOSITION. The act of congress of February 3, 1831,
authorizes the granting of a copyright for a musical composition.
A question was formerly agitated whether a composition published
on a single sheet of paper, was to be considered a book, and it
was decided in the affirmative. 2 Campb. 28, n.; 11 East, 244.
See Copyright.
TO MUSTER, mar. law. By this term is understood to collect
together and exhibit soldiers and their arms; it also signifies
to employ recruits and put their names down in a book to enrol
them.
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MUSTER-ROLL, maritime law; A written document containing the
name's, ages, quality, place of residence, and, above all, place
of birth, of every person of the ship's company. It is of great
use in ascertaining the ship's; neutrality. Marsh. Ins. B. 1, c.
9, s. 6, p. 407; Jacobs. Sea Laws, 161; 2 Wash. C. C. R. 201.
MUSTIRO. This name is given to the issue of an Indian and a
negro. Dudl. S. Car. R. 174.
MUTATION, French law. This term is synonymous with change, and
is particularly applied to designate the change which takes place
in the property of a thing in its transmission from one person to
another; permutation therefore happens when, the owner of the
thing sells, exchanges or gives it. It is nearly synonymous with
transfer. (q. v.) Merl. R‚pert. h. t.
MUTATION OF LIBEL, practice. An amendment allowed to a libel,
by which there is an alteration of the substance of the libel, as
by propounding a new cause of action, or asking one thing instead
of another. Dunl. Adm. Pr. 213; Law's Eccl. Law, 165-167; 1
Paine's R. 435; 1 Gall. R. 123; 1 Wheat. R. 26l.
MUTATIS MUTANDIS. The necessary changes. This is a phrase of
frequent practical occurrence, meaning that matters or things are
generally the same, but to be altered, when necessary, as to
names, offices, and the like.
MUTE, persons. One who is dumb. Vide Deaf and Dumb.
MUTE, STANDING MUTE, practice, crim. law. When a prisoner upon
his arraignment totally refuses to answer, insists upon mere
frivolous pretences, or refuses to put himself upon the country,
after pleading not guilty, he is said to stand mute. 2. In the
case of the United States v. Hare, et al., Circuit Court,
Maryland Dist. May sess. 1818, the prisoner standing mute was
considered as if he had pleaded not guilty.
3. The act of congress of March 3, 1825, 3 Story's L . U. S.
2002, has since provided as follows; §14, That if any person,
upon his or her arraignment upon any indictment before any court
of the United States for any offence, not capital, shall stand
mute, or will not answer or plead to such indictment, the court
shall, notwithstanding, proceed to the trial of the person, so
standing mute, or refusing to answer or pleas, as if he or she
had pleaded not guilty; and upon a verdict being returned by the
jury, may proceed to render judgment accordingly. A similar
provision is to be found in the laws of Pennsylvania.
4. The barbarous punishment of peine forte et dure which till
lately disgraced the criminal code of England, was never known in
the United States. Vide Dumb; 15 Vin. Ab. 527.
5. When a prisoner stands mute, the laws of England arrive at
the forced conclusion that he is guilty, and punish him
accordingly. 1 Chit. Cr. Law, 428.
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6. By the old French law, when a person accused was mute, or
stood mute, it was the duty of the judge to appoint him a
curator, whose duty it was to defend him, in the best manner he
could; and for this purpose, he was allowed to communicate with
him privately. Poth. Proced. Crim. s. 4, art. 2, §1.
MUTILATION, crim. law. The depriving a man of the use of any of
those limbs, which may be useful to him in fight, the loss of
which amounts to mayhem. 1 Bl. Com. 130.
MUTINY, crimes. The unlawful resistance of a superior officer,
or the raising of commotions and disturbances on board of a ship
against the authority of its commander, or in the army in
opposition to the authority of the officers; a sedition; (q.
v.) a revolt. (q. v.)
2. By the act for establishing rules and articles for the
government of the armies of the United States, it is enacted as
follows: Article 7. Any officer or soldier, who shall begin,
excite, or cause, or join in, any mutiny or sedition in any troop
or company in the service of the United States, or in any party,
post, detachment or guard, shall suffer death, or such other
punishment as by a court martial shall be inflicted. Article 8.
Any officer, non-commissioned officer, or soldier, who being
present at any mutiny or sedition, does not use his utmost
endeavors to suppress the same, or coming to the knowledge of any
intended mutiny, does not without delay give information thereof
to his commanding officer, shall be punished by the sentence of a
court martial, with death, or otherwise, according to the nature
of his offence.
3. And by the act for the better government of the navy of the
United States, it is enacted as follows,: Article 13. If any
person in the navy shall make or attempt to make any mutinous
assembly, he shall, on conviction thereof by, a court martial,
suffer death; and if any person as aforesaid, shall utter any
seditious or mutinous words, or shall conceal or connive at any
mutinous or seditious practices, or shall treat with contempt his
superior, being in the execution of his office, or being witness
to any mutiny or sedition, shall not do his utmost to suppress
it, he shall be punished at the discretion of a court martial.
Vide 2 Stra. R. 1264.
MUTUAL. Reciprocal.
2. In contracts there must always be a consideration in order
to make them valid. This is sometimes mutual, as when one man
promises to pay a sum of money to another in consideration that
he shall deliver him a horse, and the latter promises to deliver
him the horse in consideration of being paid the price agreed
upon. When a man and a woman promise to marry each other, the
promise is mutual. It is one of the qualities of an award, that
it be mutual; but this doctrine is not as strict now as
formerly. 3 Rand. 94; see 3 Caines 254; 4 Day, 422; 1 Dall.
364, 365; 6 Greenl. 247; 8 Greenl. 315; 6 Pick. 148.
3. To entitle a contracting party to a specific performance of
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an agreement, it must be mutual, for otherwise it will not be
compelled. 1 Sch. & Lef. 18; Bunb. 111; Newl. Contr. 152. See
Rose. Civ. Ev. 261.
4. A distinction has been made between mutual debts and mutual
credits. The former term is more limited in its signification
than the latter. In bankrupt cases where a person was indebted to
the bankrupt in a sum payable at a future day, and the bankrupt
owed him a smaller sum which was then due; this, though in
strictness, not a mutual debt, was holden to be a mutual credit.
1 Atk. 228, 230; 7 T. R. 378; Burge on Sur. 455, 457.
MUTUARY, contracts. A person who borrows personal chattels to
be consumed by him, and returned to the lender in kind; the
person who receives the benefit arising from the contract of
mutuum. Story, Bailm. §47.
MUTUUM, or loan for consumption, contracts. A loan of personal
chattels to be consumed by the borrower, and to be returned to
the lender in kind and quantity; as a loan of corn, wine, or
money, which are to be used or consumed, and are to be replaced
by other corn, wine, or money. Story on Bailm. §228; Louis.
Code, tit. 12, c. 2; Ayliffe's Pand. 481; Poth. Pand. tom. 22,
h. t.; Dane's Ab. Index, h. t.; 1 Bouv. Inst. logo.
2. It is of the essence of this contract, 1st. That there be
either a certain sum of money, or a certain quantity of other
things, which is to be consumed by use which is to be the
subject-matter of the contract, and which is loaned to be
consumed. 2d. That the thing be delivered to the borrower. 3d.
That the property in the thing be transferred to him. 4th. That
he obligates himself to return as much. 5th. That the parties
agree on all these points. Poth. Prˆt. de Consomption, n. 1; 1
Bouv. Inst. n. 1091-6.
MYSTERY or MISTERY. This word is said to be derived from the
French mestier now written mˆtier, a trade. In law it signifies a
trade, art, or occupation. 2 Inst. 668.
2. Masters frequently bind themselves in the indentures with
their apprentices to teach them their art, trade, and mystery.
Vide 2 Hawk. c. 23, s. 11.
MYSTIC. In a secret manner; concealed; as mystic testament,
for a secret testament. Vide 2 Bouv. Inst. n. 3138; Testament
Mystic.
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