T:
TABELLIO. An officer among the Romans who reduced to writing
and into proper form, agreements, contracts, wills, and other
instruments, and witnessed their execution. The term tabellio is
derived from the Latin tabula, seu tabella, which in this sense,
signified those tables or plates covered with wax which were then
used instead of paper. 8 Toull. n. 5; Delauriere, sur Ragneau,
mot Notaire.
2. Tabelliones differed from notaries in many respects: they
had judicia jurisdiction in some cases, and from their judgments
there were no appeals. Notaries were then the clerks or aiders of
the tabelliones, they received the agreements of the parties,
which they reduced to short notes; and these contracts were not
binding until they were written in extenso, which was done by the
tabelliones. Encyclopedie de, M. D'Alembert, mot Tabellion; Jac.
Law. Dict. Tabellion; Merlin, Repertoire, mot Notaire, §1; 3
Giannone's Istoria di Napoli, p. 86.
TABLEAU OF DISTRIBUTION. In Louisiana this is a list of
creditors of an insolvent estate, stating what each is entitled
to. 4 N. S. 535.
TABLES. A synopsis in which many particulars are brought
together in a general view; as genealogical tables, which are
composed of the names of persons belonging to a family. 2 Bouv.
Inst. n. 1963-4. Vide Law of the Twelve Tables.
TABULA IN NAUFRAGIO, Engl. law. Literally a plank in a wreck.
This figure has been used to denote the condition of a third
mortgagee, who obtained his mortgage without any knowledge of a
second mortgage, and then, being puisne, takes the first
encumbrance; in this case he shall squeeze out and have
satisfaction before the second. 2 Ves. 573; 2 Fonbl. Eq. B. 3,
c. 2, §2; 2 Ventr. 337; 1 Ch. Cas. 162; 1 Story, Eq. §§414,
415; and Tacking.
TACIT. That which, although not expressed, is understood from
the nature of the thing, or from the provision of the law;
implied.
TACIT LAW. A law which derives its authority from the common
consent of the people, without any legislative enactment. 1 Bouv.
Inst. n. 120.
TACK, Scotch law. A contract of location by which the use of
land, or any other immovable subject, is, set to the lessee or
tacksman for a certain yearly rent, either in money, the fruits
of tho ground, or services. Ersk. Prin. Laws of Scot. B. 2, t. 6,
n. 8; 1 Tho. Co. Litt. 209. This word is nearly synonymous with
lease.
TACKING, Engl. law. The union of securities given at different
times, so as to prevent any intermediate purchasers claiming
title to redeem, or otherwise discharge one lien, which is prior,
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without redeeming or discharging other liens also, which are
subsequent to his own title. Jer. Eq. Jur. B. 1, c. 2, §1, p. 188
to 191; 1 Story, Eq. Jur. §412.
2. It is an established doctrine in the English chancery that a
bona fide purchaser and without any notice of a defect in his
title at the time of the purchase, may lawfully buy any statute,
mortgage, or encumbrance, and if he can defend by those at law,
his adversary shall have no help in equity to set those
encumbrances aside, for equity will not disarm such a purchaser.
And as mortgagees are considered in equity as purchasers pro
tanto, the same doctrine has extended to them, and a mortgagee
who has advanced his money without notice of any prior
encumbrance, may, by getting an assignment of a statute,
judgment, or recognizance, protect himself from any encumbrance
subsequent to such statute, judgment or recognizance, though
prior to his mortgage; that is, he will be allowed to tack or
unite his mortgage to such old security, and will by that means
be entitled to recover all moneys for which such security was
given, together with the money due on his mortgage, before the
prior. mortgagees are entitled to recover anything. 2 Fonbl. Eq.
306; 2 Cruise, t. 15, c. 5, s. 27; Powell on Morg. Index, h.
t.; 1 Vern. 188; 8 Com. Dig. 953; Madd. Ch. Index, h. t.
3. This doctrine is inconsistent with the laws of the several
states, which require the recording of mortgages. Caines' Cas.
Er. 112; 1 Hop. C. R. 231; 3 Pick. 50; 2 Pick. 517.
4. The doctrine of tacking seems to have been acknowledged in
the civil law, Code, 8, 27, 1; but see Dig. 13, 7, 8; and see 7
Toull. 110. But this tacking could not take place to the injury
of intermediate encumbrancers. Story on Eq. §1010, and the
authorities cited in the note.
TAIL. An estate tail is an estate of inheritance, to a man or a
woman and his or her heirs of his or her body, or heirs of his
body of a particular description, or to several persons and the
heirs of their bodies, or the heirs generally or specially of the
body or bodies of one person, or several bodies. Prest. on
Estates, 355; Cruise, tit. 2, c. 1, s. 12.
2. Estates tail, as qualified "in their limitation and extent,
are of sev-eral sorts. They have different denominations,
according to the circumstances under which, or the persons to
whom they are limited. They are usually divided into estates tail
general or special.
3. But they may be more advantageously arranged under the
following classes.
4. - 1. As to the extent of the degree to which the estates may
descend, they are, 1st, general; 2d, qualified.
5. - 2. As to the sex of the person who may succeed, they are,
1st. General, as extending to males or females of the body,
without exception. 2d. Special, as admitting only one sex to the
succession, and excluding the other sex.
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6. - 3. As to the person by whom or by whose body those heirs
are to be begotten, they are either, 1st. General, as to all the
heirs of the body of a man or woman. 2d. Special, as to the heirs
of the body of a man or woman begotten by a particular person, or
to the heirs of the two bodies of a man and woman. On the several
species of estates tail noticed under this division, it may be
observed, that the samer estate may at the same time, be general
in one respect; as, for example, to all the heirs of the body in
whatever degree they are related; and may be, special in another
respect, as that these heirs shall be males, &c. Prest. on
Estates, 383, 4.
7. The law relating to entails is diversified in the several
states. In Indiana and Louisiana they never existed they are
unknown in Illinois and Vermont. In Ohio, Virginia, Tennessee,
Kentucky, and New York, estates tail are converted into estates
in fee simple by statute; and they may be barred by a simple
conveyance in Pennsylvania. In Alabama, Missouri, Mississippi,
New Jersey, Connecticut and North Carolina, they have been
modified, and in Georgia, they have been abolished without
reservation. Griff. Reg. h. t. Vide, generally, 8 Vin. Ab. 227 to
272; 10 Id. 257 to 269; 20 Id. 163; Bac. Ab. Estate in tail;
4 Com. Dig. 17; 4 Kent, Com. 12; Bouv. Inst. Index, h. t.;
and. 1 Bro. Civ. Law, 188, where an attempt is made to prove that
an estate resembling an estate tail was not unknown to the
Romans.
TAKE. This is a technical expression which signifies to be
entitled to; as, a devisee will take under the will. To take
also signifies to seize, as to take and carry away.
TAKING, crim. torts. The act of laying hold upon an article,
with or without removing the same; a felonious taking is not
sufficient without a carrying away, to constitute the crime of
larceny. (q. v.) And when the taking has been legal, no
subsequent act will make it a crime. 1 Moody, Cr. Cas. 160.
2. The taking is either actual or constructive. The former is
when the thief takes, without any pretence of a contract, the
property in question.
3. A constructive felonious taking occurs when, under pretence
of a contract, the thief obtains the felonious possession of
goods; as, when under the pretence of hiring, he had a felonious
intention at the time of the pretended contract, to convert the
property to his own use. The court of criminal sessions for the
city and county of Philadelphia have decided that in the case of
a man who found a quantity of lumber, commonly called a raft,
floating on the river Delaware and fastened to the shore, and
sold it, to another person, at so low a price. as to enable the
purchaser to remove it, and did no other act himself, but
afterwards the purchaser removed it, that thls was a taking by
the thief, and he was actually convicted and sentenced to two
years imprisonment in the penitentiary. Hill's case, Aug.
Sessions, 1838. It cannot be doubted, says Pothier, Contr. de
Vente, n. 271, that by selling and delivering a thing which he
knows does not belong to him, the party is guilty of theft.
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4. When property is left through inadvertence with a person and
he conceals it animo furandi, he is guilty of a felonious taking
and may be convicted of larceny. 17 Wend. 460.
5. But when the owner parts with the property willingly, under
an agreement that he is never to receive the style indentical
property, the taking is not felonious; as, when a person
delivered to the defendant a sovereign to get it changed, and the
defendant never returned either with the sovereign or the change,
this was not larceny. 9 C. & P. 741. See 1 Moody, C. C. 179; Id.
185; 1 Hill. R. 94; 2 Bos. & P. 508; 2 East, P. C. 554; 1
Hawk. c. 33, s. 8; 1 Hale, P. C. 507; 3 Inst. 408; and
Carrying away; Finder; Invito Domino; Larceny; Robbery.
6. The wrongful taking of the personal property of another,
when in his actual possession, or such taking of the goods of
another who, has the right of immediate possession, subject the
tort feasor to an action. For example, such wrongful taking will
be evidence of a conversion, and an action of trover may be
maintained. 2 Saund. 47, h. t.; 3 Willes, 55. Trespass is a
concurrent remedy in such a case. 3 Wils. 336. Replevin may be
supported by the unlawful taking of a personal chattel. 1 Chit.
Pl. 158. Vide Bouv. Inst. Index, h. t.
TALE, comm. law. A denomination of money in China. In the
computation of the ad valorem duty on goods, &c. it is computed
at one dollar and forty-eight cents. Act of March 2, 1799, s. 61,
1 Sto. L. U. S. 626. Vide Foreign Coins.
TALE, Eng. law. The declaration or count was anciently so
called in law pleadings. 3 Bl. Com. 293.
TALES, Eng. law. The name of a book kept in the king's bench
office, of such jurymen as were of the tales. See Tales de
circumstantibus.
TALES DE CIRCUMSTANTIBUS, practice. Such persons as are
standing round. When ever the panel of the jury is exhausted the
court order that the jurors wanted shall be selected from among
the bystanders which order bears the name of tales d
circumstantibus. Bac. Ab. Juries, C.
2. The judiciary act of Sept. 24, 1789, 1 Story, L. U. S. 64,
provides, §29, that When from challenges, or otherwise, there
shall not be a jury to determine any civil or criminal cause, the
marshal or his deputy shall, by order of the court where such
defect of jurors shall happen, return jurymen de talibus
circumstantibus sufficient to complete the panel; and when the
marshal or his deputy are disqualified as aforesaid, jurors may
be returned by such disinterested persons as the court shall
appoint. See 2 Hill, So. Car. R. 381; 2 Penna. R. 412; 4
Yeates, 236; Coxe, 283; 1 Blackf. 63; 2 Harr. & J. 426; 1
Pick. 43, n.
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TALLAGE. This word is derived from the French tailler, and
signifies literally to cut. In England it is used to signify
subsidies, taxes, customs, and indeed any imposition whatever by
the government for the purpose of raising a revenue. Bac. Ab.
Smuggling, &c. B; Fortesc. De Laud. 26; Madd. Exch. ch. 17; 2
Inst. 531, 532 Spelm. Gl. h. v.
TALLIES, evidence. The parts of a piece of wood out in two,
which persons use to denote the quantity of goods supplied by one
to the other. Poth. Obl. pt. 4, c. 1, art. 2, §7.
TALZIE, HEIR IN. Scotch law. Heirs of talzie or tailzie, are
heirs of estates entailed. 1 Bell's Com. 47.
TANGIBLE PROPERTY. That which may be felt or touched; it must
necessarily be corporeal, but it may be real or personal. A house
and a horse are, each, tangible property. The terni is used in
contradistinction to property not tangible. By the latter
expression, is; meant that kind of property which, though in
possession as respects the right, and, consequently, not strictly
choses in action, yet differ; from goods, because they are
neither tangible nor visible, though the thing produced from the
right be perfectly so. In this class may be mentioned copyrights
and patent-rights. 1 Bouv. Inst. n. 467, 478.
TARDE VENIT, Practice. The name of a return made by the sheriff
to a writ, when it came into his hands too late to be executed
before the return day.
2. The sheriff is required to show that he has yielded
obedience to the writ, or give a good excuse for his omission;
and he may say, quod breve adeo tarde venit quod exequi non
possunt. It is usual to return the writ with an indorsement of
tarde venit. Com. Dig. Return, D 1.
TARE, weights. An allowance in the purchase and sale of
merchandise, for the weight of the box, bag, or cask, or other
thing, in which the goods are packed. It is also an allowance
made for tiny defect, waste, or diminution in the weight, quality
or quantity of goods. It differs from tret. (q. v.)
TARIFF. Customs, duties, toll. or tribute payable upon
merchandise to the general government is called tariff; the rate
of customs, &c. also bears this name and the list of articles
liable to duties is also called the tariff.
2. For the tariff of duties imposed on the importation of
foreign merchan-dise into the United States.
TAVERN. A place of entertainment; a house kept up for the
accommodation of strangers.
2. These are regulated by various local laws. For the
liabilities of tavern keepers, Vide Story on Bailm. art. 7; 2
Kent, Com. 458; 12 Mod. 487; Jones' Bailm. 94; 1 Bl. Com. 430;
1 Roll. Ab. 3, F; Bac. Ab. Inn, &c.; 1 Bouv. Inst. 1015, et
seq.; and the articles Inn; Inn-keeper.
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TAXES. This term in its most extended sense includes all
contributions imposed by the government upon individuals for the
service of the state, by whatever name they are called or known,
whether by the name of tribute, tithe, talliage, impost, duty,
gabel, custom, subsidy, aid, supply, excise, or other name.
2. The 8th section of art. 1, Const. U. S. provides, that
"congress shall have power to lay and collect taxes, duties,
imposts, and excises, to pay," &c. "But all duties, imposts and
excises shall be uniform throughout the United States."
3. In the sense above mentioned, taxes are usually divided into
two great classes, those which are direct, and those which are
indirect. Under the former denomination are included taxes on
land or real property, and under the latter taxes on articles of
consumption. 5 Wheat. R. 317.
4. Congress have plenary power over every species of taxable
property, except exports. But there are two rules prescribed for
their government, the rule of uniformity and the rule of
apportionment. Three kinds of taxes, namely, duties, imposts and
excises are to be laid by the first rule; and capitation and
other direct taxes, by the second rule. Should there be any other
species of taxes, not direct, and not included within the words
duties, imposts or customs, they might be laid by the rule of
uniformity or not, as congress should think proper and
reasonable. Id.
5. The word taxes is, in a more confined sense, sometimes
applied in contradistinction to duties, imposts and excises.
Vide, generally, Story on the Const. c. 14; 1 Kent, Com. 254; 8
Dall. 171; 1 Tuck. Black. App. 232; 1 Black. Com. 308; The
Federalist, No. 21, 36; Woodf. Landl. and Ten. 197, 254.
TAXING COSTS, practice. The act by which it is ascertained to
what costs a party is entitled.
2. It is a rule that the jury must assess the damages and costs
separately, so that it may appear to the court that the costs
were not considered, in the damages; and when the jury give
costs in an amount insufficient to answer the costs of the suit,
the plaintiff may pray that the officer may tax the costs, and
such taxation is inserted in the judgment: this is said to be
done ex assensu of the plaintiff, because at his prayer. Bac. Ab.
Costs, K. The costs are taxed in the first instance, by the
prothonotary or clerk of the court. See 2 Wend. R. 244; 1 Cowen,
R. 591; 7 Cowen, R. 412; 2 Yerg. R. 245, 310; 6. Yerg. R. 412;
Harp. R. 326; 1 Pick. R. 211; 10 Mass. R. 26; 16 Mass. R. 370.
A bill of costs having been once submitted to such an officer for
taxation, cannot be withdrawn from him and referred to another. 2
Wend. R. 252.
TEAMSTER. One who drives horses in a wagon for the purpose of
carrying goods for hire he is liable as a common carrier. Story,
Bailm. §496.
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TECHNICAL. That which properly belongs to an art.
2. In the construction of contracts, it is a general rule that
technical words are to be taken according to their approved and
known use in the trade in which the contract is entered into, or
to which it relates, unless they have manifestly been understood
in another sense by the parties. 2 B. & P. 164; 6 T. R. 320; 3
Stark. Ev. 1036, and the article Construction.
3. Words which do not of themselves denote that they are, used
in a technical sense, are to have their plain, popular, obvious
and natural meaning. 6 Watts & Serg. 114.
4. The law, like other professions, has a technical language.
"When a mechanic speaks to me of the instruments aud operations
of his trade,", says Mr. Wynne, Eunom. Dial. 2, s. 5, "I shall be
as unlikely to comprehend him, as he would me in the language of
my profession, though we both of us spoke English all the while.
Is it wonderful then, if in systems of law, and especially among
the hasty recruits of commentators, you meet (to use Lord Coke's
expression) with a whole army of words that cannot defend
themselves in a grammatical war? Technical language, in all
cases, is formed from the most intimate knowledge of any art. One
words stands for a great many, as it is. always to be resolved
into many ideas by definitions. It is, therefore, unintelligible,
because it is concise, and it is useful for the same reason."
Vide Language.
TEINDS, Scotch Law. That liquid proportion of the rents or
goods of the people, which is due to churchmen for performing
divine service, or exercising the other spiritual functions
proper to their several offices. Ersk. Pr. L. Scot. B. 2, t. 10,
s. 2. See Tithes.
TELLER. An officer in a bank or other institution. He is said
to take that name from tallier, or one who kept a tally, because
it is his duty to keep the accounts between the bank or other
institution and its customers, or to make their accounts tally.
In another sense teller signifies a person appointed to receive
votes. In England the name of teller is given to certain officers
in the exchequer.
TEMPORARY. That which is to last for a limited time; as, a
temporary sta-tute, or one which is limited in its operation for
a particular period of time after its enactment the opposite of
perpetual.
TENANCY or TENANTCY. The state or condition of a tenant; the
estate held by a tenant, as a tenant at will, a tenancy for
years.
TENANT, estates. One who holds or possesses lands or tenements
by any kind of title, either in fee, for life, for years, or at
will. See 5 Mann. & Gr. 54; S. C. 44 Eng. C. L. Rep. 39; 5
Mann. & Gr. 112; Bouv. Inst. Index, h . t.
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2. Tenants may be considered with regard to the estate to which
they are en-titled. There are tenants in fee; tenants by the
curtesy; tenants in dower; tenants in tail after. possibility
of issue extinct; tenants for life tenants for years; tenants
from year to year; tenants at Will; and tenants at suffrance.
When considered with regard to their number, tenants are in
severalty; tenants in common; and joint tenants. There is also
a kind of tenant, called tenant to the praecipe. These will be
separately examined.
3. Tenant in fee is he who has an estate of inheritance in the
land. See Fee.
4. Tenant by the curtesy, is where a man marries a woman seised
of an estate of inheritance, that is, of lands and tenements in
fee simple or fee tail; and has by her issue born alive, which
was capable of inheriting her estate. In this case he shall, on
the death of his wife, hold the lands for life, as tenant by the
curtesy. Co. Litt. 29, a; 2 Lilly's Reg. 656; 2 Bl. Com. 126.
See Curtesy.
5. Tenant in dower is where the hushand of a woman is seised of
an estate of inheritance, and dies; in this case, the wife shall
have the third part of the lands and tenements of which he was
seised at any time during the coverture, to hold to herself
during the term of her natural life. 2 Bl. Com. 129; Com. Dig.
Dower, A 1. See Dower.
6. Tenant in tail after possibility of issue extinct, is where
one is tenant in special tail, and a person from whose body the
issue was to spring, dies without issue; or having issue,
becomes extinct; in these cases the survivor becomes tenant in
tail after possibility of issue extinct. 2 Bl. Com. 124; and
vide Estate tail after possibility of issue extinct.
7. Tenant for life, is he to whom lands or tenements are
granted, or to which he derives by operation of law a title for
the term of his own life, or for that of any other person, or for
more lives than one.
8. He is called tenant for life, except when he bolds the
estate by the life of another, when he is called tenant er autre
vie. 2 Bl. Com. 84; Com. Dig. Estates, E 1; Bac. Ab. Estates,
See Estate for life; 2 Lilly's Reg. 557.
9. Tenant for years, is he to whom another has let lands,
tenements and hereditaments for a term of certain years, or for a
lesser definite period of time, and the lessee enters thereon. 2,
Bl. Com. 140; Com. Dig Estates by grant, G.
10. A tenant for years has incident to, and unseparable from
his estate, unless by special agreement, the same estovers to
which a tenant for life is entitled. See Estate for life. With
regard to the crops or emblements, the tenant for years is not,
in general, entitled to them after the expiration of his term. 2
Bl. Com. 144. But in Pennsylvania, the tenant is entitled to the
way going crop. 2 Binn. 487; 5 Binn. 285, 289 2 S. & R. 14. See
5 B. & A. 768; this Diet. Distress; Estate for years; Lease;
Lessee; Notice to quit.; Underlease.
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11. Tenant from year to year, is he to whom another has let
lands or tenements, without any certain or determinate estate;
especially if an annual rent be reserved Com. Dig. Estates, R 1.
And when a person is let into possession as a tenant, without any
agreement as to time, the inference now is, that he is a tenant
from year to year, until the contrary be proved; but, of course,
such presumption may be rebutted. 3 Burr. 1609; 1 T. R. 163; 3
T. R. 16; 5 T. R. 471; 8 T. R. 3; 3 East 451. The difference
between a tenant from year to year, and a tenant for years, is
rather a distinction in words than in substance. Woodf., L. & J.
163.
12. Tenant at will, is when lands or tenements are let by one
man to another, to have and th bold to him at the will of the
lessor, by force of which the lessee is in possession. In this
case the lessee is called tenant at will.
13. Every lease at will must be at the will of both parties.
Co. Lit. 55; 2 Lilly's Reg. 555; 2 Bl. Com. 145., See Com. Dig.
Estates, H 1; 12 Mass. 325; 1 Johns. Cas. 33; 2 Caines' C.
Err. 314; 2 Caines' R. 169; 17 Mass. R. 282; 9 Johns. R. 331;
13 Johns. R. 235. Such a tenant may be ejected by the landlord at
any time. 1 Watt's & Serg. 90.
14. Tenant at suffrance, is he who comes into possession by a
lawful demise, and after his term is ended, continues the
possession wrongfully, and holds over. Co. Lit. 57, b; 2 Leo.
46; 3 Leo. 153. See 1 Johns. Cas. 123; 5 Johns. R. 128; 4
Johns. R. 150; Id. 312.
15. Tenant in severalty, is he who holds land and tenements in
his own right only, without any other person being joined or
connected with him in point of interest, during his estate
therein. 2 Bl. Com. 179.
16. Tenants in common, are such as hold by several and distinct
titles, but by unity of possession. 2 Bl. Com. 161. See Estate in
common; 7 Cruise, Dig. Ind. tit. Tenancy in Common; Bac. Abr.
Joint-Tenants and Tenants in Common; Com. Dig. Abatement, E 10,
F 6; Chancery, 3 V 4 Devise, N 8; Estates, K 8, K 2 Supp. to
Ves. jr. vol. 1, 272, 315; 1 Vern. It. 353; Arch. Civ. Pl. 53,
73.
17. Tenants in common may have title as such to real or
personal property; they may be tenants of a house, land, a
horse, a ship, and the like.
18. Tenants in common are bound to account to each other; but
they are bound to account only for the value of the property as
it was when they entered, and not for any improvement or labor
they put upon it, at their separate expense. 1 McMull. R. 298.
Vide Estates in common; and 4 Kent, Com. 363. Joint tenants, are
such as hold lands or tenements by joint tenancy. See Estate in
joint tenany; 7 Cruise, Dig. Ind. tit. Joint Tenancy; Bac. Abr.
Joint Tenants and Tenants in Common; Com. Dig. Estates, K 1;
Chancery, 3 V 1; Devise, N 7, N 8; 2 Saund. Ind. Joint Tenants;
Preston on Estates, 2 Bl. Com. 179.
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20. Tenants to the praecipe, is be against whom the writ of
praecipe is brought, in suing out a common recovery, and must be
the tenant or seised of the freehold. 2 Bl. Com. 362.
TENANT OF THE DEMESNE, Eng. law. One who is tenant of a mesne
lord; as where A is tenant of B, and C of A; B is the lord, A
the mesne lord and C tenant of the demesne. Ham. N. P. 392, 393.
TENANT BY THE MANNER. One who has a less estate than a fee in
land, which remains in the reversioner. He is so called because
in avowries and other pleadings, it is specially shown in what
manner, he is tenant of the land, in contradistinction to the
veray tenant, who is called simply, tenant. Hamm. N. P. 393. See
Veray.
TENANT PARAVAIL, English law. The tenant of a tenant; and is
so called because he has the avails or profits of the land. Ham.
N. P. 892, 393.
TENANT RIGHT, Eng. law. In leases from the crown, corporations
or the church, it is usual to grant a further term to the old
tenants in preference to strangers, and, as this expectation is
seldom disappointed, such tenants are considered as baying an
ulterior interest beyond their subsisting term; and this
interest is called the tenant right. Bac. Ab. Leases and Terms
for years, U.
TENDER, contracts, pleadings. A tender is an offer to do or
perform an act which the party offering, is bound to perform to
the party to whom the offer is made.
2. A tender may be of money or of specific articles; these
will be separately considered. §1. Of the lender of money. To
make la valid tender the following requisites are necessary: 1.
It must be made by a person capable of paying: for if it be made
by a stranger without the consent of the debtor, it will be
insufficient. Cro. Eliz. 48, 132; 2 M. & S. 86; Co. Lit. 206.
3. - 2. It must be made to the creditor having capacity to
receive it, or to his authorized agent. 1 Camp. 477; Dougl. 632;
5 Taunt. 307; S. C. 1 Marsh. 55; 6 Esp. 95; 3 T. R. 683; 14
Serg. & Rawle, 307; 1 Nev. & M. 398; S. C. 28 E. C. L. R. 324;
4 B. & C. 29 S. C. 10 E. C. L. R. 272; 3 C. & P. 453 S. C. 14 E.
C. L. R. 386; 1 M. & W. 310; M. & M. 238; 1 Esp. R. 349 1 C. &
P. 365
4. - 3. The whole sum due must be offered, in the lawful coin
of the United States, or foreign coin made current by law; 2 N.
& M. 519; and the offer must be unqualified by any circumstance
whatever. 2 T. R. 305; 1 Campb. 131; 3 Campb. 70; 6 Taunt.
336; 3 Esp. C. 91; Stark. Ev. pt. 4, page 1392, n. g; 4 Campb.
156; 2 Campb. 21; 1 M. & W. 310. But a tender in bank notes, if
not objected to on that account, will be good. 3 T. R. 554; 2 B.
& P. 526; 1 Leigh's N. P. c. 1, S. 20; 9 Pick. 539; see 2
Caines, 116; 13 Mass. 235; 4 N. H. Rep. 296; 10 Wheat 333. But
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in such case, the amount tendered must be what is due exactly,
for a tender of a five dollar note, demanding change, would not
be a good tender of four dollars. 3 Campb. R. 70; 6 Taunt. R.
336; 2 Esp. R. 710; 2 D. & R. 305; S. C. 16 E. C. L. R. 87.
And a tender was held good when made by a check contained in a
letter, requesting a receipt in return which the plaintiff sent
back demanding a larger sum, without objecting to the nature of
the tender. 8 D. P. C. 442. When stock is to be tendered,
everything must be done by the debtor to enable him to transfer
it, but it is not absolutely requisite that it should be
transferred. Str. 504, 533, 579 .
5. - 4. If a term had been stipulated in favor of a creditor,
it must be expired; the offer should be made at the time agreed
upon for the performance of the contract if made afterwards, it
only goes in mitigation of damages, provided it be made before
suit brought. 7 Taunt. 487; 8 East, R. 168; 5 Taunt. 240; 1
Saund. 33 a, note 2. The tender ought to be made before day-light
is entirely gone. 7 Greenl. 31.
6. - 5. The condition on which the debt was contracted must be
fulfilled.
7. - 6. The tender must be made at the place agreed upon for
the payment, or, if there be no place appointed for that purpose,
then to the creditor or his authorized agent. 8 John. 474; Lit.
Sel. Cas. 132; Bac. Ab. h. t. c.
8. When a tender has been properly made, it is a complete
defence to the action but the benefit of a tender is lost, if the
creditor afterwards demand the thing due from the debtor, and the
latter refuse to pay it. Kirby, 293.
9. - §2. Of the tender of specific articles. It is a rule that
specific articles maybe tendered at some particular place, and
not, like money, to the person of the creditor wherever found.
When no place is expressly mentioned in the contract, the place
of delivery is to be ascertained by the intent of the parties, to
be collected from the nature of the case and its circumstances.
If, for example, the contract is for delivery of goods from the
seller to the buyer on demand, the former being the manufacturer
of the goods or a dealer in them, no place being particularly
named, the manufactory or store of the seller will be considered
as the place intended, and a tender there will be sufficient.
When the specific articles are at another place at the time of
sale, that will be the place of delivery. 2 Greenl. Ev. §609 4
Wend. 377; 2 Applet. 325.
10. When the goods are cumbrous, and the place of delivery is
not designated, nor to be inferred from the circumstances, it is
presumed that it was intended that they should be delivered at
any place which the creditor might reasonably appoint; if the
creditor refuses, or names an unreasonable place, the debtor may
select a proper place, and having given notice to the creditor,
deliver the goods there. 2 Kent, Comm. 507; 1 Greenl. 120;
Chip. on Contr. 51 13 Wend. 95; 2 Greenl. Ev. §610. Vide,
generally, 20 Vin., Ab. 177; Bac. Ab. h. t.; 1 Sell. 314; Com.
Dig. Action upon the case upon Assumpsit, H 8-Condition, L 4
Pleader, 2 G 2-2 W, 28,49-3 K 23-3 M 36; Chipm, on Contr. 31,
74; Ayl. Pand. B. 4, t. 29; 7 Greenl. 31 Bouv. Inst. Index, h.
t.
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TENEMENT, estates. In its most extensive signification tenement
comprehends every thing which may be holden, provided it be of a
permanent nature; and not only lands and inheritances which are
holden, but also rents and profits a prendre of which a man has
any frank tenement, and of which he may be seised ut de libero
tenemento, are included under this term. Co. Litt. 6 a; 1 Tho.
Co. Litt. 219; Pork. s. 114; 2 Bl. Com. 17. But the word
tenements simply, without other circumstances, has never been
construed to pass a fee. 10 Wheat. 204. In its more confined and
vulgar acceptation, it means a house or building. Ibid. an 1
Prest. on Est. 8. Vide 4 Bing. 293; S C. l1 Eng. C. L. Rep. 207;
1 T. R. 358; 3 T. R. 772; 3 East, R. 113; 5 East, R. 239;
Burn's Just. Poor, 525 to 541; 1 B. & Adolph. 161; S. C. 20
Engl. C. L. Rep. 36 8; Com. Dig. Grant, E 2; Trespass, A 2;
Wood's Inst. 120; Babington on Auctions, 211, 212.
TENENDAS, Scotch law. The name of a clause in charters of
heritable rights which derives its name from its first words
tenendus praedictas terras, and expresses the particular tenure
by which the lands are to be holden. Ersk. Prin. B. 2, t. 3, n.
10.
TENENDUM, conveyancing. This is a Latin word, which signifies
to hold.
2. It was formerly that part of a deed which was used to
express the tenure by which the estate granted was holden; but
since all freehold tenures were converted into socage, the
tenendum is of no further use even in England, and is therefore
joined to the habendum in this manner, "to have and to hold." The
words "to hold" have now no meaning in our deeds. 2 Bl. Com. 298.
Vide Habendum.
TENERI, contracts. That part of a bond where the obligor
declares himself to be held and firmly bound to the obligee, his
heirs, executors, administrators and assigns, is called the
teneri. 3 Call, 350.
TENNESSEE. The name of one of the new states of the United
States of America. This state was admitted into the Union by
virtue of the "act for the admission of the state of Tennessee
into the Union," approved June 1, 1796, 1 Story's L. IT. S. 450,
which recites and enacts as follows:
2. Whereas, by the acceptance of the deed of cession of the
state of North Carolina, congress are bound to lay out, into one
or more states, the territory thereby ceded to the United States:
3. - §1. Be it enacted, &c., That the whole of the territory
ceded to the United States by the state of North Carolina, shall
be one state, and the same is hereby declared to be one of the
United States of America, on an equal footing with the original
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states in all respects whatever, by the name and title of the
state of Tennessee. That, until the next general census, the said
state of Tennessee shall be entitled to one representative in the
house of representatives of the United States; and, in all other
respects, as far as they may be applicable, the laws of the
United States shall extend to, and have force in, the state of
Tennessee, in the same manner as if that state had originally
been one of the United States.
4. The constitution was adopted on the sixth day of February,
1796; and amended by a convention which sat at Nashville, on the
30th day of August, 1834. The powers of the government are
divided into three distinct departments; the legislative,
executive, and judicial. Art. 2, 1.
5. - 1st. The legislative authority of the state is vested in a
general assembly, which consists of a senate and house of
representatives, both dependent on the people.
6. - 1. The senate will be considered with reference to the
qualifications of the electors; the qualifications of the
members; the number of members; the length of time for which
they are elected; and, the time of their election. 1. Every free
white man of the age of twenty-one years, being a citizen of the
United States, and a citizen of the county wherein he may offer
his vote six months next preceding the day of his election, shall
be entitled to vote for members of the general assembly, and
other civil officers, for the county and district in which he
resides; provided, that no person shall be disqualified from
voting on account of color, who is now, by the laws of this
state, a competent witness in a court of justice against a white
man. Art. 4, sect. 1. 2. No person shall be a senator, unless he
be a citizen of the United States, of the age of thirty years,
and shall have resided three years in this state, and one year
in, the county or district, immediately preceding the election.
Art. 2, s. 10. 3. The number of senators shall not exceed
one-third of the number of representatives. Art. 2, s. 6. 4.
Senators shall hold their office for the term of two years. Art.
2, s. 7. 5. Their election takes place on the first Thursday of
August, 1835, and every second year thereafter. Art. 2 , s. 7.
7. - 2. The house of representatives will be considered in the
same order which has been observed in considering the senate. 1.
The qualifications of the electors of representatives are the
same as those of senators. 2. To be elected a representative, the
candidate must be a citizen of the United States, of the age of
twenty-one years, and must have been a citizen of the state for
three years, and a resident of the county he represents one year
immediately preceding the election. Art. 2, s. 9. 3. The number
of representatives shall not exceed seventy-five, until the
population of the state shall exceed one million and a half; and
shall never thereafter exceed ninety-nine. Art. 2, s. 5. 4. They
are elected for two years. Art. 2, s. 7. 5. The election is to be
at the same time as that of senators. Art. 2, s. 7.
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8. - 2d. The supreme executive power of this state is vested in
a governor. Art. 3, s. 2. 1. He is chosen by the electors of the
members of the general assembly. Art. 3, s. 2. 2. He shall be at
least thirty years of age, shall be a citizen of the United
States, and shall have been a citizen of this state seven years
next before his election. Id. sect. 3. He shall hold his office
for two years, and until his successor shall be elected and
qualified. He shall not be eligible more than six years in any
term of right. Id. sect. 4. 3. He shall be elected by the
electors of the members of the general assembly, at the times and
places where they respectively vote for the members thereof. Id.
s. 2. 4. He shall be commander-in-chief of the army and navy of
the state, and of the militia, except when they are called into
the service of the United States; shall have the power to grant
reprieves and pardons, except in cases of impeachment; may
convene the legislature on extraordinary occasions, by
proclamation; take care that the laws be faithfully executed;
from time to time give to the general assembly information of the
state of the government, and recommend to their consideration
such measures as he shall deem expedient may requite information
in writing from the officers in the executive department, upon
any subject relating to the duties of their respective offices.
Id. s. 5 to 11. 5. He shall, at stated times, receive a
compensation for his services, which shall not be increased nor
diminished during the period for which he shall have been
elected. Id. s. 7. 6. In case of the removal of the governor from
office, or of his death, or resignation, the duties of the office
shall devolve on the speaker of the senate; and in case of a
vacancy in the office of the latter, on the speaker of the house
of representatives. Id. s, 12.
9. - 3d. The judicial power of the state is vested, by the
sixth article of the constitution, in one supreme court; in such
inferior courts as the legislature shall, from time to time,
ordain and establish, and the judges thereof; and in justices of
the peace. The legislature may also vest such jurisdiction as may
be deemed necessary in corporation courts.
10. - 1. The supreme court shall be composed of three judges;
one of whom shall reside in each of the grand divisions of the
state. The judges shall be thirty-five years of, age, and shall
be elected for the term of twelve years. The jurisdiction of the
supreme court shall be appellate only, under such restrictions
and regulations as may, from time to time, be prescribed by law:
but it may possess such other jurisdiction as is now conferred by
law on the present supreme court. The concurrence of two of the
judges shall be necessary to a decision. Said courts shall be
held at one place, and at one place only, in each of the three
grand divisions of the state.
11. - 2. The judges of such inferior courts as the legislature
may establish, shall be thirty-five years of age, and shall be
elected for eight years. The jurisdiction of such inferior courts
shall be regulated by law. The judges shall not charge juries
with regard to matters of fact, but may state the testimony and
declare the law. They shall have power in all civil cases to
issue writs of certiorari to remove any cause or transcript
thereof, from any inferior jurisdiction, into said court, on
sufficient cause, supported by oath or affirmation.
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12. - 3. Judges of the courts of law, and equity are appointed
by a joint vote of both houses of the general assembly; but
courts may be established to be holden by justices of the peace.
13. - 4. The judges of the supreme court and inferior courts
shall, at stated times, receive a compensation for their
services, to be ascertained by law, which shall not be increased
nor diminished, during the time for which they are elected. They
shall not be allowed any fees or perquisites of office, nor bold
any other office of trust or profit under this state or the
United States.
TENET. Which he holds. There are two ways of stating the tenure
in an action of waste. The averment is either in the tenet and
the tenuit; it has a refer-ence to the time of the waste done,
and not to the time of bringing the action.
2. When the averment is in the tenet the plaintiff on obtaining
a verdict, will recover the place wasted, namely, that part of
the premises in which the waste was exclusively done, if it were
done in a par only, together with treble damages. But when the
averment is in the tenuit, the tenancy being at an end, he will
have judgment for his damages only. 2 Greenl. Ev. 652.
TENOR, pleading. This word, applied to an instrument in
pleading, signifies an exact copy; it differs from purport. (q.
v.) 2 Phil. Ev. 99; 2 Russ. on Cr. 365; 1, Chit. Cr. Law, 235;
1 Mass. 203; 1 East, R. 180, and the cases cited in the notes.
In chancery practice, by tenor is understood a certified copy of
records of other courts removed into chancery by certiorari.
Gresl. Ev. 309.
TENUIT. Which he held. When the tenancy is ended and the tenant
is sued in an action of waste, the averment of tenure is in the
tenuit. For a distinction between the averment in the tenet and
tenuit, see 2 Greenl. Ev. §652, and Tenet.
TENURE, estates. The manner in which lands or tenements are
holden.
2. According to the English law, all lands are held mediately
or immediately from the king, as lord paramount and supreme
proprietor of all the lands in the kingdom. Co. Litt. 1 b, 65 a;
2 Bl. Com. 105.
3. The idea of tenure; pervades, to a considerable degree, the
law of real property in the several states; the title to land is
essentially allodial, and every tenant in fee simple has an
absolute and perfect title, yet in technical language, his estate
is called an estate in fee simple, and the tenure free and common
socage. 3 Kent, Com. 289, 290. In the states formed out of the
North Western Territory, it seems that the doctrine of tenures is
not in force, and that real estate is owned by an absolute and
allodial title. This is owing to the wise provisions on this
subject contained in the celebrated ordinance of 1787. Am. Jur.
No. 21, p. 94, 5. In New York, 1 Rev. St. 718; Pennsylvania, 5
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Rawle, R. 112; Connecticut, 1 Rev. L. 348 and Michigan, Mich. L.
393, feudal tenures have been abolished, and lands are held by
allodial titles. South Carolina has adopted the statute, 12 C.
II., c. 24, which established in England the tenure of free and
common socage. 1 Brev. Dig. 136. Vide Wright on Tenures; Bro. h.
t.; Treatises of Feuds and Tenures by Knight's service; 20 Vin
Ab. 201; Com. Dig. h. t.; Bac. Ab. h. Thom. Co. Litt. Index, h.
t.; Sulliv. Lect. Index, h. t.
TENSE. A term used in, grammar to denote the distinction of
time.
2. The acts of a court of justice ought to be in the present
tense; as, "praeceptum est," not "preaceptum fuit;" but the acts
of, the party may be in the preterperfect tense, as "venit, et
protulit hic in curia quandum querelam suam;" and the
continuances are in the preterperfect tense; as, "venerunt," not
"veniunt." 1 Mod. 81.
3. The contract of marriage should be made in language in the
present tense. 6 Binn. Rep. 405. Vide 1 Saund. 393, n. 1.
TERCE, law of Scotland. A life-rent competent by law to widows
who have not accepted of special provisions in the third part of
the heritable subjects in which the hushand died infeft.
2. The terce takes place only where the marriage has subsisted
for a year and day, or where a child has been born alive of it.
No terce is due out of lands in which the hushand was not infeft,
unless in case of a fraudulent omission. Cr. 423, §28; St. 2, 6,
16. The terce is not limited to lands, but extends to teinds, and
to servitudes and other burdens affecting lands. Ersk. Pr. L.
Scot. B. 2, t. 9, s. 26, 27; Burge on the Confl. of Laws, 429 to
435.
TERM, construction. Word; expression speech.
2. Terms or words are characters by which we announce our
sentiments, and make known to others things with which we are
acquainted. These must be properly construed or interpreted in
order to understand the parties using them. Vide Construction;
Interpretation; Word.
TERM, contracts. This word is used in the civil, law to denote
the space of time granted to the debtor for discharging his
obligation; there are express terms resulting from the positive
stipulations of the agreement; as, where one undertakes to pay a
certain sum on a certain day and also terms which tacitly result
from the nature of the things which are the object of the
engagement, or from the place where the act is agreed to be done.
For instance, if a builder engage to construct a house for me, I
must allow a reasonable time for fulfilling his engagement.
2. A term is either of right or of grace; when it makes part
of the agreement and is expressly or tacitly included in it, it
is of right when it is not part of the agreement, it is of grace;
as if it is not afterwards granted by the judge at the
requisition of the debtor. Poth. on Oblig. P. 2, c. 3, art. 3; 1
Bouv. Inst. n. 719 et seq.
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TERM, estates. The limitation of an estate, as a term for
years, for life, and the like. The word term does not merely
signify the time specified in the lease, but the estate also and
interest that passes by that lease; and therefore the term may
expire during the continuance of the time, as by surrender,
forfeiture and the like. 2 Bl. Com. 145; 8 Pick. R. 339.
TERM, practice. The space of time during which a court holds a
session; sometimes the term is a monthly, at others it is a
quarterly period, according to the constitution of the court.
2. The whole term is considered as but one day so that the
judges may at any time during the term, revise their judgments.
In the computation of the term all adjournments are to be
included. 9 Watts, R. 200. Courts are presumed to know judicially
when their terms are required to be held by public law. 4 Dev. R.
427. See, 1 generally, Peck, R. 82; 6 Yerg. R. 395; 7 Yerg. R.
365; 6 Rand. R. 704; 2 Cowen, R. 445; 1 Cowen, R. 58; 5 Binn.
R. 389; 4 S. & R. 507 5 Mass. R. 195, 435.
TERM ATTENDANT ON THE INHERITANCE. This phrase is used in the
English courts of equity, to signify that when a term has been
created for a particular purpose, which is satisfied, and the
instrument by which it is created does not provide for a cesser
of the term, on the happening of the event, the benefit in it
becomes subject to the rules of equity, and must be moulded and
disposed of according to the equitable interests of all persons
having claims upon the inheritance; and, when the purposes of
the trust fire satisfied, the ownership of the term belongs in
equity, to the owner of the inheritance, whether de-clared by the
original conveyance to attend it or not.
2. Terms attendant on the inherit ance are but little known in
the United States. 1 Hill. Ab. 243.
TERM PROBATORY. A probatory term is the time during which
evidence may be taken in a cause. Vide Probatory term.
TERM FOR YEARS. An estate for years, (q. v.) and the time
during which such estate is to be beld, are each called a term;
hence the term may expire before the time, as by a surrender. Co.
Litt. 45. If, for example, a conveyance be made to Peter for
three years, and after the expiration of the said term to Paul
for six, and Peter surrenders or forfeits his term after one
year, Paul's estate takes effect immediately; if, on the
contrary, the language had been after the expiration of the said
time, or of the said three years, the result would have been
different, and Paul's estate would not have taken effect till the
end of such time, notwithstanding the forfeiture or surrender.
2. Whatever be its duration, a term for years is less than an
estate for life. If, therefore, the same person have a term for
years and an estate for life immediately succeeding it, the term
is merged; but if the order of the estates be reversed, that is,
if the greater precede the less, there is no merger. Co. Litt. 54
b; Vin. Ab. Merger, F 4 and G 13; Godb. 51; Biss. on Est. c.
8, s. 1, n. 3, p. 186. Vide Estate for years; Leases.
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TERMINUM. In the civil law, says Spelman, this word signifies a
day set to the defendant, and, in that sense, Bracton, Glanville
and some others sometimes use it. Reliquiae Spelmanianae, p. 71;
Beames' Gl. 27 n.
TERMINUS A QUO. The starting point of a private way is so
called. Hamm. N. P. 196.
TERMINUS AD QUEM. The point of termination of a private way is
so called.
TERMOR. One who holds lands and tenements for a term of years
or, life. Litt. sect. 100; 4 Tyr. 561.
TERRE-TENANT, or improperly terre-tenant. One who has the
actual possession of land; but in a more technical sense, he who
is seised of the land; and, in the latter sense the owner of the
land, or the person seised, is the terre-tenant, and not the
lessee. 4 W. & S. 256; Bac. Ab. Uses and Trusts, in pr. It has
been holden that mere occupiers of the land are not
terre-tenants. Bee 16 S. & R, 432; 3 Penna. 229; 2 Saund. 7, n.
4; 2 Bl. Com. 91, 328.
TERRIER, Engl. Iaw. A roll, catalogue or survey of lands,
belonging either to a single person or a town, in which are
stated the quantity of, acres, the names of the tenants, and the
like.
2. By the ecclesiastical law an inquiry is directed to be made
from time to time, of the temporal rights of the clergyman of
every parish, and to be returned into the registry of the bishop:
this return is denominated a terrier. 1 Phil. & Am. Ev. 602, 603.
TERRITORIAL COURTS. The courts established in the territories
of the United States. Vide Courts of the United States.
TERRITORY. Apart of a country, separated from the rest, and
subject to a particular jurisdiction. The word is derived from
terreo, and is so called because the magistrate within his
jurisdiction has the power of inspiring a salutary fear. Dictum
cat ab eo quod magistratus intra fines ejus terrendi jus habet.
Henrion de Pansy, Auth. Judiciare, 98. In speaking of the
ecclesiastical jurisdictions, Francis Duaren observes, that the
ecclesiastics are said not to have territory, nor the power of
arrest or removal, and are not unlike the Roman magistrates of
whom Gellius says vocationem habebant non prehen-sionem. De
Sacris Eccles. Minist. lib. 1, cap. 4. In the sense it is used in
the constitution of the United States, it signifies a portion of
the country subject to and belonging to the United States, which
is not within the boundary of any of them.
2. The constitution of the United States, art. 4, s. 3,
provides, that "the congress shall have power to dispose of, and
make all needful rules and regu-lations respecting the territory
or other property of the United States; and nothing in this
constitution shall be construed, so as to preclude the claims of
the United States or of any state."
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3. Congress possesses the power to erect territorial
governments within the territory of the United States; the power
of congress over such territory is exclusive and universal, and
their legislation is subject to no control, unless in the case of
ceded territory, as far as it may be affected by stipulations in
the cessions, or by the ordinance of 1787, 3 Story's L. U. S.
2073, under which any part of it has been settled. Story on the
Const. §1322; Rawle on the Const: 237; 1 Kent's Com. 243, 359;
1 Pet. S. C. Rep. 511, 542, 517.
4. The only organized territories of the United States are
Oregon, Minnesota, New Mexico and Utah. Vide Courts of the United
States.
TERROR. That state of the mind which arises from the event or
phenomenon that may serve as a prognostic of some catastrophe
affright from apparent danger.
2. One of the constituents of the offence of riot is that the
acts of the persons engaged in it should be to the terror of the
people, as a show of arms, threatening speeches, or turbulent
gestures; but it is not requisite, in order to constitute this
crime, that personal violence should be committed. 3 Camp. R.
369; 1 Hawk. P. C. c. 65, s. 5; 4 C. & P. 373. S. C. 19 E. C.
L. R. 425 4 C. & P. 538; S. C. 19 E. C. L. R. 616. Vide Rolle's
R. 109; Dalt. Just. c. 186; 19 Vin. Ab. Riots, A 8.
3. To constitute a forcible entry, 1 Russ. Cr. 287, the act
must be accom-panied with circumstances of violence or terror;
and in order to make the crime of robbery, there must be violence
or putting in fear, but both these circumstances need not concur.
4 Binn. R. 379. Vide Riot; Robbery; Putting in fear.
TERTIUS INTERVENIENS, civil law. One, who claiming an interest
in the subject or thing in dispute in action between other
parties, asserts his right to act with the plaintiff, to be
joined with him, and to recover the matter in dispute because he
has an interest in it or to join the defendant, and with him,
oppose the interest of the plaintiff, which it is his interest to
defeat. He differs from the intervener or he who interpleads in
equity. 4 Bouv. Inst. n. 3819, note.
TEST. Something by which to ascertain the truth respecting
another thing. 7 Penn. St. Rep. 428; 6 Whart. 284. Vide
Religious Test.
TESTACY. The state or condition of dying after making a will,
which was valid at the time of testator's death.
TESTAMENT, civil law. The appointment of an executor or
testamentary heir, according to the formalities prescribed by
law. Domat, Liv. 1, tit. 1, s. 1.
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2. At first there were only two sorts of testaments among the
Romans that called calatis comitiis, and another called in
procinctu. (See below.) In the course of time these two sorts of
testament having become obsolete, a third form was introduced,
called per aes et libram, which was a fictitious sale of the
inheritance to the heir apparent. The inconveniences which were
experienced from these fictitious sales again changed the form of
testaments; and the praetor introduced another which required
the seal of seven witnesses. The emperors having increased the
solemnity of those testaments, they were called written or solemn
testaments, to distinguish them from nuncupative testaments which
could be made without writing. Afterwards military testaments
were introduced, in favor of soldiers actually engaged in
military service.
3. Among the civilians there are various kinds of testaments,
the principal of which are mentioned below.
4. A civil testament is one made according to all the forms
prescribed by law, in contradistinction to a military testament,
in making which some of the forms may be dispensed with. Civil
testaments are more ancient than military ones; the former were
in use during the time of Romulus, the latter were introduced
during the time of Coriolanus. See Hist. de la Jurisp. Rom. de M.
Terrason, p. 119.
5. A common testament is one which is made jointly by several
persons. Such testaments are forbidden in Louisiana, Civ. Code of
Lo. art. 1565, and by the laws of France, Code Civ. 968, in the
same words, namely, "A testament cannot be made by the same act,
by two or more persons, either for the benefit of a third person,
or under the title of a reciprocal or mutual disposition."
6. A testament calatis comitiis, or made in the comitia, that
is, the assembly of the Roman people, was an ancient manner of
making wills used in times of peace amonn the Romans. The comitia
met twice a year for this purpose. Those who wished to make such
testaments caused to be convoked the assembly of the people by
these words, calatis comitiis. None could make such will's that
were not entitled to be at the assemblies of the people. This
form of testament was repealed by the law of the Twelve Tables.
7. Testament ab irato, a term used in the civil law. A
testament ab irato, is one made in a gust of passion or hatred
against the presumptive heir rather than from a desire to benefit
the devisee. When the facts of unreasonable anger are proved, the
will is annulled as unjust, and as not having been freely made.
Vide Ab irato.
8. A mystic testament is also called a solemn testament,
because it requires more formality than a nuncupative testament;
it is a form of making a will, which consists principally in
enclosing it in an envelope and sealing it in the presence of
witnesses.
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9. This kind of testament is used in Louisiana. The following
are the provisions of the civil code of that state on the
subject, namely: the mystic or secret testament, otherwise
called the close testament, is made in the following manner: the
testator must, sign his dispositions, whether he has written.
them himself, or has caused them to be written by another person.
The paper containing, those dispositions, or the paper serving as
their envelope, must be closed and sealed. The testator shall
present it thus closed and sealed to the notary and to witnesses,
or he shall cause it to be and sealed in their presence; then he
shall declare to the notary, in the presence of the witnesses,
that that paper contains his testament written by himself, or by
another by his direction, and signed by him, the testator. The
notary shall then draw up the act of superscription, which shall
be written on that paper, or on the sheet that serves as its
envelope, and that act shall be signed by the testator, and by
the notary and the witnesses. Art. 1577, 5 M. R. 1 82. All that
is above prescribed shall be done without interruption or turning
aside to other acts; and in case the testator, by reason of any
hindrance that has happened since the signing of the testament,
cannot sign the act of superscription, mention shall be made of
the declaration made by him thereof; without its being
necessary, in that case, to increase the number of witnesses.
Art. 1578. Those who know not how, or are not able to write, and
those who know not how, or are not able to sign their names,
cannot make dispositions in the form of the mystic will. Art.
1579. If any one of the witnesses to the act of superscription
knows not how to sign, express mention shall be made thereof. In
all cases the act must be signed by at least two witnesses. Art.
1580.
10. Nuncupative, testament, a term used in the civil law. A
numcupative testament was one made verbally, in the presence of
seven witnesses; it was not necessary that it should have been,
in writing; the proof of it was by parol evidence.
11. In Louisiana, testaments, whether nuncupative or mystic,
must be drawn up in writing, either by the testator himself, or
by some other person under his dictation. Civil Code of Lo. art.
1568. The custom of making verbal statements, that is to say,
resulting from the mere deposition of witnesses, who were pregent
when the testator made known to them his will, without his having
committed it, or caused it to be committed to writing, is
abrogated. Id. art. 1569. Nuncupative testaments may be made by
public act, or by act under private signature. Id. art. 1570. See
Will, nuncupative.
12. Olographic testament, a term used in the civil law. The
olographic tes-tament is that which is written wholly by the
testator himself. In order to be valid, it must be entirely
written, dated, and signed by the hand of the tes-tator. It is
subject to no other form. See Civil Code of Lo. art.
TESTAMENTARY. Belonging to a testament; as a testamentary
gift; a testamen-tary guardian, or one appointed by will or
testament; letters testamentary, or a writing under seal given
by an officer lawfully authorized, granting power to one named as
executor to execute a last will or testament.
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TESTATE. One who dies having made a testament; a testator.
This word is used in this sense, in the act of the legislature of
Pennsylvania, entitled "An act relative to dower and for other
purposes." Sect. 2, 5 Sm. Laws, 257.
TESTATOR. One who has made a testament or will.
2. In general, all persons may be testators. But to this rule
there are various exceptions. First, persons who are deprived of
understanding cannot make wills; idiots, lunatics and infants,
are among this class. Secondly, persons who have understanding,
but being under the power of others, cannot freely exercise their
will; and this the law presumes to be the case with a married
woman, and, therefore, she cannot make a will without the express
consent of her hushand to the particular will. When a woman makes
a will under some general agreement on the part of the hushand
that she shall make a will, the instrument is not properly a
will, but a writing in the nature of a will or testament.
Thirdly, persons who are deprived of their free will cannot make
a testament; as, a person in duress. 2 Bl. Com. 497; 2 Bouv.
Inst. n. 2102, et seq. See Devisor; Duress; Feme covert;,
Idiot; Influence; Parties to Contracts; Testament; Wife;
Will.
TESTATRIX. A woman who makes a will or testament, is so called.
TESTATUM, practice. The name of a writ which is issued by the
court of one county, to the sheriff of another county, in the
same state, when the defen-dant cannot be found in the county
where the court is located; for example, after a judgment has
been obtained, and a ca. sa. has been issued, which has been
returned non est inventus, a testatum ca. sa. may be issued to
the sheriff of the county where the defendant is. Vide 20 Vin.
Ab. 259; 7 Com. Dig. 424.
TESTATUM, conveyancing. That part of a deed which commences
with the words "this indenture witnesseth."
TESTE, practice. The teste of a writ is the concluding clause,
commencing with the word witness, &c.
2. The act of congress of May 8, 1792, 1 Story's Laws U. S.
257, directs that all writs and process issuing from the supreme
or a circuit court, shall bear teste of the chief justice of the
supreme court, or if that office be vacant, of the associate
justice next in precedence; and that all writs or process
issuing from a district court, shall hear teste of the judge of
such court, or, if the said office be vacant, of the clerk
thereof. Vide Serg. Const. Law, Index, h. t.; 20 Vin. Ab. 262;
Steph. Plead. 25.
TESTES. Witnesses.
TO TESTIFY. To give evidence according to law; the examination
of a witness who declares his knowledge of facts.
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TESTIMONIAL PROOF, civ. law. This word is used in the same
sense as we use parol evidence, and, in contradistinction to
literal proof, which is written evidence.
TESTIMONY, evidence. The statement made by a witness under oath
or affirmation. Vide Bill to perpetuate testimony.
TESTMOIGNE. This is an old and barbarous French word,
signifying in the old books, evidence. Com. Dig. h. t.
TEXAS. The name of one of the new states of the United, States
of America. Texas was an independent republic. By the joint
resolution of congress of March 1, 1845, congress gave consent
that the republic of Texas might be erected into a new state, to
be called the state of Texas, with a republican form of
government to be adopted by the people. And by the joint
resolution of congress of the 29th day of December, 1845, the
state of Texas was admitted into the union on an equal footing
with the original states in all respects whatever.
2. The constitution of the state was adopted in convention by
the deputies of the people of Texas, at the city of Austin the
27th day of August, 1845.
3. By the second article, it is provided that the powers of the
government of the state of Texas shall be divided into three
distinct departments, and each of them be confided to a separate
body of magistracy, to wit: those which are legislative, to one;
those which are executive, to another; and those which are
judicial, to another; and no person, or collection of persons,
being of one of those departments, shall exercise any power
properly attached to either of the others, except in the
instances herein expressly permitted.
4. - §1. In considering the legislative power, it will be
proper to consider, 1. The qualification of voters. 2. The rights
of members of the legislature. 3. The senate. 4. The house of
representatives.
5. - 1. By sections. 1st and 2d, it is declared that every free
male person who shall have attained the age of twenty-one years,
and who shall be a citizen of the United States, or who is, at
the time of the adoption of this constitution by the congress of
the United States, a citizen of the republic of Texas, and shall
have resided in this state one year next preceding an election,
and the last six months within the district, county, city, or
town in which he offers to vote, (Indians not taxed, Africans,
and the descendants of Africans, excepted,) shall be deemed a
qualified elector and should such qualified elector happen to be
in any other county situated in the district in which he resides
at the time of an election, he shall be permitted to vote for any
district officer: Provided, That the qualified electors shall be
permitted to vote anywhere in the state for state officers: And
provided further, That no soldier, seaman, or marine, in the army
or navy of the United States, shall be entitled to vote at any
election created by this constitution.
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Sect. 2. All free male persons over the age of twenty-one
years, (Indians not taxed, Africans, and descendants of Africans,
excepted,) who shall have resided six months in Texas,
immediately preceding the acceptance of this constitution by the
congress, of the United States, shall be deemed qualified
electors.
6. - 2. The powers of the two houses are defined by the
following sections of the third article, namely,
Sec. 12. The house of representatives, when assembled, shall
elect a speaker and its other officers; and the senate shall
choose a president for the time being, and its other officers.
Each house shall judge of the qualifications and elections of its
own members; but contested elections shall be determined in such
manner as shall be directed by law. Two-thirds of each house
shall constitute a quorum to do business, but a smaller number
may adjourn from day to day, and compel the attendance of absent
members, in such manner and under such pen alties as each house
may provide.
Sec. 13. Each house may determine the rules of its own
proceedings; punish members for disorderly conduct; and with
the consent of two-thirds, expel a member, but not a second time
for the same offence.
Sec. 14. Each house shall keep a journal of its own
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 journals.
Sec. 16. Senators and representatives shall, in all cases,
except in 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.
Sec. 17. Each house may punish, by imprisonment during the
session, any person, not a member, for disrespectful or
disorderly conduct in its presence, or for obstructing,any of its
proceedings, provided such imprisonment shall not, at any one
time, exceed forty-eight hours.
Sec. 18. The doors of each house shall be kept open.
7. - 3. The senate will be considered by taking a view, 1. Of
the qualifications of senators. 2. Of the time of their election.
3. Of the length of their service. 4. By whom chosen.
8. - 1st. The 11th section of the 3d article of the
constitution directs that no person shall be a senator unless he
be a citizen of the United States, or at the time of the
acceptance of this constitution by the congress of the United
States a citizen of the republic of Texas, and shall have been an
inhabitant of this state three years next preceding the 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.
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9. - 2d. Elections are to be held at such times and places as
are now or may hereafter be designated by law. Art. 3, s. 7.
10. - 3d. Senator; are duly elected for four years.
11. - 4th. Senators are chosen by the qualified electors.
12. - 1. The house of representatives will be considered in the
same order which has been observed in speaking of the senate.
13. - 1st. By the 6th section of the 3d article of the
constitution, it is declared that no person shall be a
reprsentative unless he be a citizen of the United States, or at
the time of the adoption of this constitution a citizen of the
republic of Texas, and shall have been an inhabitant of this
state two years next preceding his election, and the last year
thereof a citizen of the county, city, or town for which he shall
be chosen, and shall have attained the age of twenty-one years at
the time of his election.
14. - 2d. Elections are to be held at such times and places as
'are now or may hereafter be designated by law. Art. 3, s. 7.
15. - 3d. The members of the house of representatives hold
their office for two, years from the day of the general election;
and the sessions of the legislature shall be biennial, at such
times as shall be prescribed by law. Art. 3, s. 6.
16. - 4th. The members of the house of representatives shall be
chosen by the qualified electors. Art. 3, s. 5.
17. - §2. The judicial power is vested in one supreme court, in
district courts, and in such inferior courts as the legislature
may from time to time ordain and establish; and such
jurisdiction may be vested in corporation courts. as may be
deemed necessary, and be directed by law. Art. 4, s. 1. Each of
these will be separately considered.
18. - 1. The supreme court will be considered by, 1. Taking a
view of the appointment of the judges, and the time during which
they hold their office. 2. The organization of the court. 3. Its
jurisdiction.
19. - 1st. The governor shall nominate, and, by and with the
advice and consent of two-thirds of the senate, shall appoint the
judges of the supreme and district courts, and they shall hold
their offices for six years. Art. 4, s. 5.
20. - 2d. The supreme court shall consist of a chief justice
and two associates, any two of whom shall form a quorum. 4, s. 2.
It appoints its own clerk.
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21. - 3d. The 3d section of the 4th article of the constitution
declares that the supreme court shall have appellate jurisdiction
only, which shall be co-extensive with the limits of the state;
but in criminal cases, and in appeals from interlocutory
judgments, with such exceptions and under such regu-lations as
the legislature shall make; And the supreme court and judges
thereof shall have power to issue the writ of habeas corpus, and,
under such regu-lations as may be prescribed by law, may issue
Writs of mandamus, and such other writs as, shall be necessary to
enforce its own jurisdiction; and also compel a judge of the
district court to proceed to trial and judgment in a cause; and
the supreme court shall hold its sessions once every year,
between the months of October and June inclusive, at not more
than three places in the state.
22. - 2. The circuit courts will be considered in the same
order observed with regard to the supreme court.
23. - 1st. Circuit court judges are appointed in the same way
as judges of the supreme court, and hold their office for the
same time.
24. - 2d. By the 6th section of the 4th article of the
constitution, if is directed that the state shall be divided into
convenient judicial districts. For each district there shall be
appointed a Judge, who shall reside in the same, and hold the
courts at one place in each county, and at least twice in each
year, in such manner as may be prescribed by law. The clerk is
elected by the qualified voters of members of the legislature.
Art. 4, s. 11.
24. - 3d. By the tenth section of the fourth article,
jurisdiction is given to the district courts in these words: The
district court shall have original jurisdiction of all criminal
cases, of all suits in bebalf of the state to recover penalties,
forfeitures and escheats, and of all cases of divorce, and of all
suits, complaints, and pleas whatever, without regard to -any
distinction between law and equity, when the matter in
controversy shall be valued at or amount to one hundred dollars,
exclusive of interest; and the said courts, or the judges
thereof, shall have power to issue all writs necessary to enforce
their own jurisdiction, and give them a general superintendence
and control over inferior jurisdictions; and in the trial of all
criminal cases, the jury trying the same shall find and assess
the amount of punishment to be inflicted, or fine imposed;
except in capital cases, and where the. punishment or fine
imposed shall be specifically imposed by law.
25. - §3. The supreme executive power is vested in a governor.
We will consider, 1. His qualifications. 2. By whom elected. 3.
Duration of his office. 4. His power and duty.
26. - 1st. He must be at least thirty years of age, be a
citizen of the United States, or a citizen of Texas, at the time
of the adoption of the constitution, and shall have resided in
the same three years next immediately preceding his election.
Art. 5, s. 4.
27. - 2d. The governor shall be elected by the qualified
electors of the state, at the time and places of elections for
members of the legislature. Art. 5, s. 2.
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28. - 3d. He holds his office for two years from the regular
time of installation, and until his successor shall have been
duly qualified, but shall not be eligible for more than four
years in any term of six years. Art. 5, s. 4.
29. - 4th. He is commander-in-chief of the army and navy of the
state - may require information from officers of the executive
department - may convene the legislature, or adjourn the same,
when the houses cannot agree - may recommend measures to the
legislature - shall cause the laws to be executed. Art. 5.
30. There shall be a lieutenant governor, who shall be chosen
at every election for governor, by the same persons and in the
same manner, continue in office for the same time, and, possess
the same qualifications. In voting for governor and
lieutenant-governor, the electors shall distinguish for whom they
vote as governor, and for whom as lieutenant-governor. The
lieutenant governor shall, by virtue of his office, be president
of the senate, and have, when in committee of the whole, a right
to debate and vote on all questions, and when the senate is
equally divided, to give the casting vote. In case of the death,
resignation, removal from office, inability or refusal of the
governor to serve or of his impeachment or absence from the
state, the lieutenant governor shall exercise the power and
authority appertaining to the office of governor until another be
chosen at the periodical election and be duly qualified or until
the governor impeached, absent, or disabled, shall be acquitted,
return, or his disability be removed. Art. 5, s. 12.
THAINLAND, old Eng. law. The land which was granted by the
Saxon kings to their thains or thanes was so called. Crabb's C.
L. 10.
THALER. The name of a coin. The thaler of Prussia and of the
northern states of Germany is deemed as money of account, at the
custom-house, to be of the value of sixty-nine cents. Act of May
22, 1846.
2. The thaler of Bremen, of seventy-two grotes, is deemed of
the value of seventy-one cents. Act of March 3, 1843.
THEFT, crimes. This word is sometimes used as synonymous with
larceny, (q. v.) but it is not so technical. Ayliffe's Pand. 581
2 Swift's Dig. 309.
2. In the Scotch law, this is a proper and technical word, and
signifies the secret and felonious abstraction of the property of
another for sake of lucre, without his consent. Alison, Princ.
Cr. Law of Scotl. 250.
THEFT-BOTE. The act of receiving a man's goods from the thief,
after they had been stolen by him, with the intent that he shall
escape punishment.
2. This is an offence punishable at common law by fine and
imprisonment. Hale's P. C. 130. Vide Compounding a felony.
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THEOCRACY. A species of government which claims to be
immediately directed by God.
2. La religion qui, dans l'antiquite, s'associa souvent au
despotisms, pour regner. par son bras ou a son ombrage, a
quelquefois tents de regner seule. Clest ce qu'elle appelait le
regne de Dieu, la thiocratie. Matter, De l'influence des Moeurs
sur les lois, et de l'influence dos Lois sur les moeurs, 189.
Religion, which in former tinies, frequently associated itself
with despotism, to reign, by its power, or under its shadow, has
sometimes attempted to reign alone, and this she has called the
reign of God, theocracy.
THIEF, crimes. One who has been guilty of larceny or theft.
THING ADJUDGED. That which has been decided by a final
judgment, by a tribu-nal of competent jurisdiction, from which
there can be no appeal, either because the appeal did not lie, or
because the time fixed by law for the appealing has elapsed, or
because it has been confirmed on the appeal. Vide res judicata.
2. The Roman law agrees with ours, for it requires a final
judgment or sentence before the decision acquires the force of
the thing adjudged. Dig. 42, 1; Code, 7, 52; Extravag. 2, 27.
THINGS. By this word is understood every object, except man,
which may become an active subject of right. Code du Canton de
Berne, art. 332. In this sense it is opposed, in the language of
the law, to the word persons. (q. v.)
2. Things, by the common raw, are divided into, 1. Things real,
which are such as are permanent, fixed and immovable, and which
cannot be carried from place to place; they are are usually said
to consist in lands, tenements and hereditaments. 2 Bl. Com. 16;
Co. Litt. 4 a to 6 b. 2. Things personal, include all sorts of
things movable which attend a man's person wherever he goes.
Things personal include not only things movable, but also
something more, the whole of which is generally comprehended
under the name of chattels. Chattels are distinguished into two
kinds, namely, chattels real and chattels personal. See Chattel.
3. It is proper to remark that sometimes it depends upon the
destination of certain objects, whether they are to be considered
personal or real property. See Dalloz, Dict. choses, art 1, §2.
Destination; Fixtures; Mill.
4. Formerly, in England, a very low and contemptuous opinion
was entertained of personal property, which was regarded as only
a transient commodity. But of late years different ideas have
been entertained of it; and the courts, both in that country,
and in this, now regard a man's personal property in a light,
nearly, if not quite equal to his realty; and have adopted a
more enlarged and still Iess technical mode of considering the
one than the other, frequently drawn from the rules which they
found already established by the Roman law, wherever those rules
appear to be well-grounded and apposite to the case in question,
but principally from reason and convenience, adapted to the
circumstances of the times. 2 Bl. Com. 385.
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5. By the Roman or civil law, things are either inpatrimonio,
capable of being possessed by single persons exclusive of others;
or extra patrimoiium, incapable of being so possessed.
9. Things in patrimonio are divided into corporeal and
incorporeal, and the corporeal again into movable and immovable.
7. Corporeal things are those which are visible and tangible,
as lands, houses, horses, jewels, and the like; incorporeal are
not the object of sensation, but are the creatures of the mind,
being rights issuing out of a thing corporeal, or concerning or
exercisable within the same; as, an obligation, a hypothecation,
a servitude, and, in general, that which consists only in a
certain right. Domat, Lois Civ. Liv. Prel. t. 31 s. 2, §3; Poth.
Traite dos Choses, in princ.
8. Corporeal things are either movable or immovable. The
movable are those which have been separated from the earth, as
felled trees, or gathered fruits, or stones dug out from quarries
or those which are naturally separated, as an-imals. Immovable
things are those parts of the surface of the earth, in what-ever
manner thev way be distinguished, either as building;, woods,
meadows, fields,or otherwise, and to whomsoever they may belong.
Under the name of immovables is included everything which adheres
to the surface of the earth, either by its nature, as trees; or
which has been erected by the hands of man, as houses and other
buildings, although, by being separated, such things way become
movables. Domat, Lois Civ. Liv. Prel. tit. 3, s. 1, §5 and 6. See
Movables; Immovables.
9. Things extra patrimonium are, 1. Common. 2. Public. 3. Res
universitatis. 4. Res nullius.
10. - 1. Things common are, the heavens, light, air, and the
sea, which cannot be appropriated by any man or set of men, so as
to deprive others from the. use of them. Domat, Lois Civ. Liv.
Prel. tit. 3, s. 1, §1; §1 lnst. de rer. div.; L. 2, §1, ff. de
rer. div.; Ayliffe, Pand. B. 2, t. 1, in med.
11. - 2. Things public, res publicae, the property of which was
in the state, and their use common to all the members of it, as
navigable rivers, ways, bridges, harbors, banks, and the right of
fishing.
12. - 3. Res universitatis, or things belonging to cities or
bodies politic. Such things belong to the corporation or body
politic in respect of the property of them; but as to their use,
they appertain to those persons that are of the corporation or
body politic: such may be theatres, market houses, and the like.
They differ from things public, inasmuch as the latter belong to
a nation. The lands or other revenue belonging to a corporation,
do not fall under this class, but, are juris privati.
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13. - 4. Res nullius, or things which are not the property of
any man or number of men, are principally those of divine right;
they are of three sorts: things sacred, things religious, and
things sanct. Things sacred were those which were duly and
publicly consecrated by the priests, as churches, their
ornaments, &c. Things religious were those places which became so
by burying in them a dead body, even though no consecration of
these spots by a priest had taken place. Things sanct were those
which by certain reverential awe arising from their nature,
something augmented by religious ceremonies, were guarded and
defended from the injuries of men; such were the gates and walls
of a city, offences against which were capitally punished. 1 Bro.
Civ. Law, B. 2, c. 1, p. 172.
See, in general, Domat, Lois Civ. Liv. Prel. tit. 3; 1 Bro.
Civ. Law, B. 2, c. 1 Poth. Traite des Choses; Ersk. Pr. Law
Scot. B. 2, tit. 1; Toullier, Droit Francais, Liv. 2, tit. 1
Ayliffe, Pand. B. 3, t. 1; Inst. 2, 1, 2 Dig. 1, 8 Bouv. Inst.
Index, h. t.
THIRD PARTIES. This term includes all persons who are not
parties to the contract, agrement or instrument of writing, by
which their interest in the thing conveyed is sought to be
affected. 1 N. S. 384. See also 2 L. R. 425 6 M. R. 528.
2. But it is difficult to give a very definite idea of third
persons, for sometimes those who are not parties to the contract,
but who represent the rights of the original parties, as
executors, are not to be considered third person. See Duverg.
tome 16, n. 34, 35, 36, et idem, tome 17, n. 190; 2 Bouv. Inst.
n. 1335, et seq.
THIRLAGE, Scotch law. The name of servitude by which lands are
astricted or thirled to a particular mill, and the possessors
bound to grind their grain there, for the payment of certain
multures and sequels as the agreed price of grinding. Ersk. Prin.
B. 2, t. 9, n. 18.
THOROUGHFARE. A street or way so open that one can go through
and get out of it without returning. It differs from a cul de
sac, (q. v.) which is open only at one end.
2. Whether a street which is not a thoroughfare is a highway,
seems not fully settled. See 1 Campb. 260; 5 Taunt. 137; 11
East, 376, n.; Hawk. P. C. B. 1, c. 76, s. 1; 5 Barn. & Ald.
456. See Dedication.
THOUGHT. The operation of the mind. No one can be punished for
his mere thoughts however wicked they may be. Human laws cannot
reach them, first, because they are unknown; and, secondly,
unless made manifest by some action, they are not injurious to
any one; but when they manifest themselves, then the act, which
is the consequence, may be punished. Dig. 50 16, 225.
THREAD. A figurative expression used to signify the central
line of a stream or water course. Harg. Tracts, 5; 4 Mason's
Rep. 397; Holt's R. 490. Vide Filum aguae; Island; Water
course; River.
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THREAT, crim. law. A menace of destruction or injury to the
lives or property of those against whom it is made.
2. Sending threatening letters to persons for the purpose of
extorting money, is said to, be a misdemeanor at common law.
Hawk. B. 1, c. 53, s. 1; 2 Russ. on Cr. 575; 2 Chit. Cr. L.
841; 4 Bl. Com. l26. To be indictable, the threat must be of a
nature calculated to overcome a firm and prudent man. The party
who makes a threat may be held to bail for his good behaviour.
Vide Com. Dig. Battery, D; 13 Vin. Ab. 357.
THREAT, evidence. Menace.
2. When a confession is obtained from a person accused of
crime, in consequence of a threat, evidence of such confession
cannot be received, because, being obtained by the torture of
fear, it comes in so questionable a shape, that no credit ought
to be given to it; 1 Leach, 263; this is the general principle,
but what amounts to a threat is not so easily defined. It is
proper to observe, however, that the threat must be made by a
person having authority over the prisoner, or by another in the
presence of such authorized person, and not dissented from by the
latter. 8 C. & P. 733. Vide Confession, and the cases there
cited.
THROAT, med. jur. The anterior part of the neck. Dungl. plea.
Diet. h. t.; Coop. Dict. h. t.; 2 Good's Study of Med. 302; 1
Chit. Med. Jur. 97, n.
2. The word throat, in an indictment which charged the
defendant with murder, by "cutting the throat of the deceased,"
does not mean, and is not to be confined to that part of the neck
which is scientifically called the throat, but signifies that
which is commonly called the throat. 6 Carr. & Payne, 401; S. C.
25 Engl. Com. Law Rep. 458.
TICK, contracts. Credit; as, if a servant usually buy for the
master upon tick, and the servant buy something without the
master's order, yet, if the master were trusted by the trader, he
is liable. 1 Show. 95; 3 Keb. 625; 10 Mod. 111; 3 Esp. R. 214;
4 Esp. R. 174.
TIDE. The ebb and flow of the sea.
2. Arms of the sea, bays, creeks, coves, or rivers, where the
tide ebbs and flows, are public, and all persons may use the same
for the purposes of navi-gation and for fishing, unless
restrained by law. To give these rights at common law, the tide
must ebb and flow: the flowing of the waters of a lake into a
river, and their reflowing, being not the flux and reflux of the
tides, but mere occasional and rare instances of a swell in the
lake, and a setting up of the waters into the river, and the
subsiding of such swells, is not to be considered an ebb and flow
of the tide, so as to constitute a river technically navigable.
20 John. R. 98. See 17 John. R. 195; 2 Conn. R. 481.
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3. In Pennsylvania, the common law principle, that the flux and
reflux of the tide ascertain the character of the river, has been
rejected. 2 Binn. R. 475. Vide Arm of the sea; Navigable river;
Sea shore.
TIE. When two persons receive an equal number of votes at an
election, there is said to be a tie.
2. In that case neither is elected. When the votes are given on
any question to be decided by a deliberative assembly, and there
is a tie, the question is lost. Vide Majority.
TIEL. An old manner of spelling tel. Such as nul tiel record,
no such record.
TIEMPO INHABIL. A Spanish phrase used in Louisiana, to express
a time when a man is not able to pay his debts.
2. A man cannot dispose of his property, at such a time, to the
prejudice of his creditors. 4 N. S. 292; 3 Mart. Lo. R. 270; 10
Mart. Lo. R. 704.
TIERCE, measures. A liquid measure containing the third part of
a pipe, or forty-two gallons.
TIGNI IMMITTENDI, civil law. The name of a servitude; it is
the right of inserting a beam or timber from the wall of one
house into that of a neighboring house, in order that it may rest
on the latter, and that the wall of the latter may bear this
weight. Dig. 8, 2, 36; Id. 8, 5, 14.
TIMBER TREES. According to Blackstone, oak, ash, elm, and such
other trees as are commonly used for building, are considered
timber. 2 Comm. 28. But it has been contended, arguendo, that to
make it timber, the trees must be felled and severed from the
stock. 6 Mod. 23 Stark on Slander, 79. Vide 12 Johns. R. 239; 2
Suppl. to Ves. jr.
TIME, contracts, evidence, practice. The measure of duration.,
It is divided into years, months. days, (q. v.) hours, minutes,
and seconds. It is also divided into day and night. (q. v.)
2. Time is frequently of the essence of contracts and crimes,
and sometimes it is altogether immaterial.
3. Lapse of time alone is often presumptive evidence of facts
which are otherwise unknown; an uninterrupted enjoyment of
certain rights for twenty or twenty-one years, is evidence that
the party enjoying them is legally entitled to them; after such
a length of time, the law presumes payment of a bond or other
specialty. 10 S. & R. 63, 383; 3 S. & R. 493; 6 Munf. R. 532;
2 Cranch, R. 180; 7 Wheat. R. 535; 2 W. C. C R. 323; 4 John.
R. 202; 7 John' R. 556; 5 Conn. 1; 3 Day 289; 1 McCord 145;
1 Bay, 482; 7 Wend. 94; 5 Verm. 236.
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4. In the computation of time, it is laid down generally, that
where the computation is to be made from an act done, the day
when such act was done is included. Dougl. 463. But it will be
excluded whenever such exclusion, will prevent a forfeiture. 4
Greenl. 298. Sed vide 15 Ves. 248; 1 Ball & B. 196. In general,
one day is taken inclusively and the other exclusively. 2 Browne;
Rep. 18. Vide Chitt. Bl. 140 n. 2; 2 Evans , Poth. 50; 13 Vin.
Abr. 52, 499; 15 Vin. Ab. 554; 20 Vin. Ab. 266; Com. Dig.
Temps; 1 Rop. Legacy, 518; 2 Suppl. to Ves. jr. 229; Graham's
Pract. 185; 1 Fonbl. Equity, 430; Wright, R. 580; 7 John. R.
476; 1 Bailey, R. 89; Coxe, Rep. 363; 1 Marsh. Keny. Rep. 321;
3 Marsh. Keny. Rep. 448; 3 Bibb, R. 330; 6 Munf. R. 394; vide
Computation.
TIME, pleading. The avertment of time is generally necessary in
pleading; the rules are different, in different actions.
2. - 1. Impersonal actions, the pleadings must allege the time;
that is, the day, month and year when each traversable fact
occurred; and when there is occasion to mention a continuous
act, the period of its duration ought to be shown. The necessity
of laying a time extends to traversable facts only; time is
generally considered immaterial, ana any time may be assigned to
a given fact. This option, however, is subject to certain
restrictions. 1st. Time should be laid under a videlicit, or the
party pleading it will be required to, prove it strictly. 2d. The
time laid should not be intrinsically impossible, or inconsistent
with the fact to which it relates. 3d. There are some instances
in which time forms a material point in the merits of the case;
and, in these instances, if a traverse be taken, the time laid is
of the substance of the issue, and must be strictly proved. With
respect to all facts of this description; they must be truly
stated, at the peril of a failure for variance; Cowp. 671: and
here a videlicit will give no help. Id. 6 T. R 463; 5 Taunt. 2;
4 Serg. & Rawle, 576; 7 Serg. & Rawle, 405. Where the time needs
not to be truly stated, (as is generally the case,) it is subject
to a rule of the same nature with one that applies to venues in
transitory matters, namely, that the plea and subsequent
pleadings should follow the day alleged in the writ or
declaration; and if in these cases no time at all be laid, the
omission is aided after verdict or judgment by confession or
default, by operation of the statute of jeofails. But where, in
the plea or subsequent pleadings, the time happens to be
material, it must be alleged, and there the pleader may be
allowed to depart from the day in the writ and declaration.
3. - 2. In real or mixed actions, there is no necessity for
alleging any particular day in the declaration. 3 Bl. Com. App.
No. 1, §6; Lawes' Pl. App. 212; 3 Chit. Pl. 620-635; Cro. Jac.
311; Yelv. 182 a, note; 2 Chitt. Pl. 396, n. r; Gould, Pl. c.
3, §99, 100; Steph. Pl. 314; Com. Dig. Pleader, C 19.
4. - 3. In criminal pleadings, it is requisite, generally, to
show both the day and the year on which the offence was
committed; but the indictment will be good, if the day and year
can be collected from the whole statement, though they be not
expressly averred. Com. Dig. Indictm. G 2; 5 Serg. & Rawle, 315.
Although it be necessary that a day certain should be laid in the
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indictment, the prosecutor may give evidence, of an offence
committed, on any other day, previous to the finding of the
indictment. 5 Serg. & Rawle, 316; Arch. Cr. Pl. 95; 1 Phil
Evid. 203; 9 East, Rep. 157. This rule, however, does not
authorize the laying of a day subsequent to the trial. Addis. R.
36. See generally Bouv. Inst. Index, h. t.
TIPPLING HOUSE. A place where spirituous liquors are sold and
drunk in vio-lation of law. Sometimes the mere selling is
considered as evidence of keeping a tippling house.
TIPSTAFF. An officer appointed by the marshal of the court of
king's bench, to attend upon the judges with a kind of a rod or
staff tipped with silver.
2. In the United States, the courts sometimes appoint an
officer who is known by this name, whose duty it is to wait on
the court and serve its process.
TITHES, Eng. law. A right to the tenth part of the produce of,
lands, the stocks upon lands, and the personal industry of the
inhabitants. These tithes are raised for the support of the
clergy.
2. Fortunately, in the United States, the clergy can be
supported by the zeal of the people for religion, and there are,
no tithes. Vide Cruise, Dig. tit. 22; Ayliffe's Parerg. 504.
TITHING, Eng. law. Formerly a district containing ten men with
their fam-ilies. In each tithing there was a tithing man whose
duty it was to keep the peace, as a constable now is bound to do.
St. Armand, in his Historical Essay on the Legislative Power of
England, p. 70, expresses, an opinion that the tithing was
composed not of ten common families, but of ten families of lords
of a manor.
TITLE estates. A title is defined by Lord Coke to be the means
whereby the owner of lands hath the just possession of his
property. Co. Lit. 345; 2 Bl. Com. 195. Vide 1 Ohio Rep. 349.
This is the definition of title to lands only.
2. There are several stages or degrees requisite to form a
complete title to lands and tenements. 1st. The lowest and most
imperfect degree of title is the mere possession, or actual
occupation of the estate, without any apparent right to hold or
continue such possession; this happens when one man disseises
another. 2 Bl. Com. 195. 2dly. The next step to a good and
perfect title is the right of possession, which may reside in one
man, while the actual possession is not in himself, but in
another. This right of possession is of two sorts; an apparent
right of possession, which may be defeated by proving a better;
and an actual right of possession, which will stand the test
against all opponents. Idem. 196. 3dly. The mere right of
property, the jus proprietatis without either possession or the
right of possession. Id. 197.
3. A title is either good, marketable, doubtful, or bad.
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4. A good title is that which entitles a man by right to a
property or estate, and to the lawful possession of the same.
5. A marketable title is one which a court of equity considers
to be so clear that it will enforce its acceptance by a
purchaser. The ordinary acceptation of the term marketable title,
would convey but a very imperfect notion of its legal and
technical import.
6. To common apprehension, unfettered by the technical and
conventional distinction of lawyers, all titles being either good
or bad, the former would be considered marketable, the latter
non-marketable. But this is not the way they are regarded in
courts of equity, the distinction taken there being not between a
title which is absolutely good or absolutely bad, but between a
title, which the court considers to be so clear that it will
enforce its acceptance by a purchaser, and one which the court
will not go so far as to declare a bad title, but only that it is
subject to so much doubt that a purchaser ought not to be
compelled to accept it. 1 Jac. & Walk. R. 568. In short, whatever
may be the private opinion of the court, as to the goodness of
the title yet if there be a reasonable doubt either as to a
matter of law or fact involved in it, a purchaser will not be
compelled to complete his purchase; and such a title, though it
may be perfectly secure and unimpeachable as a holding title is
said, in the current language of the day, to be unmarketable.
Atkins on Tit.2.
7. The doctrine of marketable titles is purely equitable and of
modern ori-gin. Id. 26. At law every title not bad is marketable.
6 Taunt. R. 263; 5 Taunt. R. 625; S. C. 1 Marsh., R. 258. See
Dalzell v. Crawford, 2 Penn. Law Journ. 17.
8. A doubtful title is one which the court does not consider to
be so clear that it will enforce its acceptance by a purchaser,
nor so defective as to declare it a bad title, but only subject
to so much doubt that a purchaser ought not to be compelled to
accept it. 1 Jac. & Walk. R. 568; 9 Cowen, R. 344; vide Title,
Marketable.
9. At common law, doubtful, titles are unknown; there every
title must be either good or bad. Atkins on Tit. 17. See Dalzell
v. Crawford, 2 Penn. Law Journ. 17.
10. A bad title is one which conveys no property to a purchaser
of an estate.
11. Title to real estate is acquired by two methods, namely, by
descent and by purchase. (See these words.)
12. Title to personal property may accrue in three different
ways. By original acquisition. 2. By transfer, by act of law. 3.
By transfer, by, act of the parties.
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13. Ä §1. Title by original acquisition is acquired, 1st. By
occupancy. This mode of acquiring title has become almost extinct
in civilized governments, and it is permitted to exist only in
those few special cases, in which it may be consistent with the
public good. First. Goods taken by capture in war were, by the
common law, adjudged to belong to the captor, but now goods taken
from enemies in time of war, vest primarily in the sovereign, and
they belong to the individual captors only to the extent and
under such regulations, as positive laws may prescribe. Finch's
Law, 28, 178 Bro. tit. Property, pl. 18, 38; 1 Wilson, 211; 2
Kent, Com. 290, 95. Secondly. Another instance of acquisition by
occupancy, which still exists under certain limitations, is that
of goods casually lost by the owner, and unreclaimed, or
designedly abandoned by him; and in both these cases they belong
to the fortunate finder. 1 Bl. Com. 296. See Derilict.
14. - 2d. Title by original acquisition is acquired by
accession. See Accession.
15. - 3d. It is acquired by intellectual labor. It consists of
literary pro-perty as the construction of maps and charts, the
writing of books and papers. The benefits arising from such labor
are secured to the owner. 1. By patent rights for inventions. See
Patents. 2. By copyrights. See Copyrights.
16. - §2. The title to personal property is acquired and lost
by transfer, by act of law, in various ways. 1. By forfeiture. 2.
By succession. 3. By marriage. 4. By judgment. 5. By insolvency.
6. By intestacy.
17. - §3. Title is also acquired and lost by transfer by the
act of the party. 1. By gift. 2. By contract or sale.
18. In general, possession constitutes the criterion of title
of personal property, because no other means exist by which a
knowledge of the fact to whom it belongs can be attained. A
seller of a chattel is not, therefore, required to show the
origin of his title, nor, in general, is a purchaser, with-out
notice of the claim of the owner, compellable to make
restitution; but, it seems, that a purchaser from a tenant for
life of personal chattels, will not be secure against the claims
of those entitled in remainder. Cowp. 432; 1 Bro. C. C. 274; 2
T. R. 376; 3 Atk. 44; 3 V. & B. 16.
19. To the rule that possession is the criterion of title of
property may be mentioned the case of ships, the title of which
can be ascertained by the register. 15 Ves. 60; 17 Ves. 251; 8
Price, R. 256, 277.
20. To convey a title the seller must himself have a title to
the property which is the subject of the transfer. But to this
general rule there are exceptions. 1. The lawful coin of the
United States will pass the property along with the possession.
2. A negotiable instrument endorsed in blank is transferable by
any person holding it, so as by its delivery to give a good title
"to any person honestly acquiring it." 3 B. & C. 47; 3 Burr.
1516; 5 T. R. 683; 7 Bing. 284; 7 Taunt. 265, 278; 13 East,
509; Bouv. Inst. Index, h. t.
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TITLE, legislation That part of an act of the legislature by
which it is known, and distinguished from other acts the name of
the act.
2. A practice has prevailed of late years to crowd into the
same act a mass of heterogeneous matter, so that it is almost
impossible to describe, or even to allude to it in the title of
the act. This practice has rendered the title of little
importance, yet, in some cases, it is material in the
construction of an act. 7 East, R. 132, 134; 2 Cranch, 386. See
Lord Raym. 77; Hard. 324; Barr. on the Stat. 499, n.
TITLE, persons. Titles are distinctions by which a person is
known.
3. The constitution of the United States forbids the tyrant by
the United States, or any state of any title of nobility. (q. v.)
Titles are bestowed by courtesy on certain officers; the
president of the United States sometimes re-ceives the title of
excellency; judges and members of congress that of honor-able;
and members of the bar and justices of the peace are called
esquires. Cooper's, Justinian, 416'; Brackenridge's Law Miscell.
Index, h. t.
3. Titles are assumed by foreign princes, and, among their
subjects they may exact these marks of honor, but in their
intercourse with foreign nations they are not entitled to them as
a matter of right. Wheat. Intern. Law, pt. 2, c. 3, §6.
TITLE, Iiterature. The particular division of a subject, as a
law, a book, and the like; for example, Digest, book 1, title 2;
for the law relating to bills of exchange, see Bacon's
Abridgment, title Merchant.
TITLE, rights. The name of a newwpaper a book, and the like.
3. The owner of a newspaper, having particular title, has a
right to such title, an an injunction will lie to prevent its use
un lawfully by another. 8 Paige, 75. See Pardess. n. 170.
TITLE, pleading, rights. The right of action which the
plaintiff has; the declaration must show the plaintiff's title,
and if such title be not shown in that instrument, the defect
cannot be cured by any of the future pleadings. Bac. Ab. Pleas,
&c. B 1.
TITLE DEEDS. Those deeds which are evidences of the title of
the owner of an estate.
2. The person who is entitled to the inheritance has a right to
the possession of the title deeds. 1 arr. & Marsh. 653.
TITLE OF A DECLARATION, pleading. At the top of every
declaration the name of the court is usually stated, with the
term of which the declaration is filed, and in the margin the
venue, namely, the city or county where the cause is intended to
be tried is set down. The first two of these compose what is
called the title of the declaration. 1 Tidd's Pr. 866.
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TO WIT. That is to say; namely; scilicet; (q. v.) videlicet.
(q. v.)
TOFT. A place or piece of ground on which, a house formerly
stood, which has been destroyed by accident or decay; it also
signifies a messuage.
TOGATI. Rom. civ, law. Under the empire, when the toga had
ceased to be the usual costume of the Romans, advocates were
nevertheless obliged to wear it whenever they pleaded a cause.
Hence they were called togati. This denomination received an
official or legal sense in the imperial constitutions of the
fifth and sixth centuries, and the words togati, consortium
(corpus, ordo, collegium,) togatorum, frequently occur in those
acts.
TOKEN, contracts, crimes. A document or sign of the existence
of a fact.
2. Tokens are either public or general, or privy tokens. They
are true or false. When a token is false and indicates a general
intent to defraud, and it is used for that purpose, it will
render the offender guilty of the crime of cheating; 12 John.
292; but if it is a mere privy token, as counterfeiting a letter
in another man's name, in order to cheat but. one individual, it
would not be indictable. 9 Wend. Rep. 182; 1 Dall. R. 47; 2
Rep. Const. Cr. 139; 2 Virg. Cas. 65; 4 Hawks, R. 348; 6 Mass.
IR. 72; 1 Virg. Cas. 150; 12 John. 293; 2 Dev. 199; 1 Rich.
R. 244.
TOKEN, commercial law. In England, this name is given to pieces
of metal, made in the shape of money, passing among private
persons by consent at a certain value. 2 Adolpb. P. S. 175; 2
Chit. Com. Law, 182.
TOLERAT10N. In some. countries, where religion is established
by 1aw, cer-tain sects who do not agree with the established
religion are nevertheless permitted to exist, and this permission
is called toleration. Those are per-mitted and allowed to remain
rather as a matter of favor than a matter of right.
2. In the United States, there is no such a thing as
toleration, all men have an equal right to worship God according
to the dictates of their own consciences. See Christianity;
Conscience; Religious test.
TOLL, contracts. A sum of money for the use of something,
generally applied to the consideration which is paid for the use
of a road, bridge, or the like, of a public nature. Toll is also
the compensation paid to a miller for grinding another person's
grain.
2. The rate of taking toll for grinding is regulated by statute
in most of the states. See 2 Hill. Ab. oh. 17; 6 Ad. & Ell. N.
S. 31,; 6 Q. B. 3 1.
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TO TOLL, estates, rights. To bar, defeat, or take away; as to
toll an entry into lands, is to deny. or take away the right of
entry.
TOLLS. In a general sense, tolls signify any manner of customs,
subsidy, prestation, imposition, or sum of money demanded for
exporting or importing of any wares or merchandise, to be taken
of the buyer. 2 Inst. 58.
TON. Twenty hundred weight, each hundred weight being one
hundred and twelve pounds avoirdupois. See act of congress of
Aug. 30, 1842, c. 270, s. 20.
TONNAGE, mar. law. The capacity of a ship or vessel.
2. The act of congress of March 2, 1799, s. 64, 1 Story's L. U.
S. 630, directs that to ascertain the tonnage of any ship or
vessel, the surveyor, &c. shall, if the said ship or vessel be
double decked, take the length thereof from the forepart of the
main stem, to the afterpart of the stern post, above the upper
deck, the breadth thereof, at the broadest part above the
mainwales, half of which breadth shall be accounted the depth of
such vessel, and then deduct from the length three-fifths of the
breadth, multiply the remainder by the breadth and the product of
the depth, and shall divide this last product by ninety-five, the
quotients whereof shall be deemed the true contents or tonnage of
such ship or vessel. And if such ship or vessel shall be single
decked, the said, surveyor shall take the length and breadth as
above directed, in respect to a double deck ship or vessel, and
shall deduct from the length three-fifths of the breadth, and
taking the depth from the under-side of the deck plank to the
ceiling of the hold, shall multiply and divide as aforesaid, and
the quotient shall be deemed the tonnage of such ship or vessel.
3. The duties paid on the tonnage of a ship or vessel are also
called tonnage.
4. These duties are altogether abolished in relation. to
American vessels by the act of May 31, 1830, s. 1, 4 Story's Laws
U. S. 2216. And by the second section of the same act, all
tonnage duties on foreign vessels are abolished, provided the
president of the, United States shall be satisfied that the
discriminating or countervailing duties of such foreign nation,
so far as they operate to the disadvantage. of the United States,
have been abolished.
5. The constitution of the United States provides, art. 1, s.
10, n. 2, that no state shall, without the consent of congress,
lay any duty on tonnage.
TONTINE, French law. The name of a partnership composed of
creditors or, recipients of perpetual or life-rents or
annuities, formed on the condition that the rents of those who
may die, shall accrue to the survivors, either in whole or in
part.
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2. This kind of partnership took its name from Tonti, an
Italian, who first conceived the idea and put it in practice.
Merl. Repert. h. t. Dall. Dict. h. t.; 5 Watts, 851.
TOOK AND CARRIED AWAY, pleadings. In an indictment for simple
larceny, the words "feloniously took and carried away" the goods
stolen, are indispensable. Bac. Abr. Indictment, GI; Com. Dig.
Indictment, G 6; Cro. C. C. 37; 1 Chit. Cr. Law, 0244. Vide
Taking.
TOOLS. The Massachusetts act of assembly of 1805, c. 100, which
provided that "the tools of any debtor necessary for his trade
and occupation, should be exempted from execution," was held to
designate those implements which are commonly used by the hand of
one man, in some manual labor necessary for his subsistence. The
apparatus of a printing office, such as types, presses, &c. are
not therefore included under the term tools. 13 Mass. Rep. 82;
10 Pick. 423; 3 Verm. 133; and see 2 Pick. 80; 5 Mass. 313.
2. By the forty-sixth section of the act of March 2, 1789, 1
Story's Laws U. S. 612, the tools or implements of a mechanical
trade of persons who arrive in the United States, are free and
exempted from duty.
TORT. An injury; a wrong; (q. v.) hence the expression an
executor de son tort, of his own wrong. Co. Lit. 158.
2. Torts may be committed with force, as trespasses, which may
be an injury to the person, such as assault, battery,
imprisonment; to the property in possession; or they may be
committed without force. Torts of this nature are to the absolute
or relative rights of persons, or to personal property in
possession or reversion, or to real property, corporeal or
encorporeal, in possession or reversion: these injuries may be
either by nonfeasance, malfeasance, or misfeasance. 1 Chit. Pl.
133-4. Vide 1 Fonb. Eq. 4; Bouv. Inst. Index, h. t.; and the
article Injury.
TORTFEASOR. A wrong-doer, one who does wrong; one who commits
a trespass or is guilty of a tort.
TORTURE, punishments. A punishment inflicted in some countries
on supposed criminals to induce them to confess their crimes, and
to reveal their associates.
2. This absurd and tyrannical practice never was in use in the
United States; for no man is bound to accuse himself. An attempt
to torture a person accused of crime, in order to extort a
confession, is an indictable offence. 2 Tyler, 380. Vide
Question.
TOTAL. Complete; containing the whole; as the total amount of
an account is all the items of such account added together;
total incapacity, is an absolute and complete incapacity to do a
thing. A married woman is totally incapable to make a contract,
because, although having intelligence, she has not legal capacity
and an idiot is totally incapable to enter into a contract,
because he has no will.
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TOTAL LOSS. A technical expression, importing an utter loss of
the property for the voyage, and no more. 1 T. R. 187. Vide Loss,
and 2 Phil. Ev. 54, n.; 16 East, R. 214 Park's Ins. Index, h.
t.; Marsh. Ins. 486.
TOTALITY. The whole sum or quantity.
2. In making a tender, it is requisite that the totality of the
sum due should be offered, together with the interest and costs.
Vide Tender.
TOTIDEM VERBIS. In so many words.
TOTIES QUOTIES. As often as the thing shall happen.
TOUCH AND STAY. These words are frequently introduced in
policies of insurance, giving the party insured the right to stop
and stay at certain designated points in the course of the
voyage. A vessel which has the power to touch and stay at a place
in the course of the voyage, must confine herself strictly to the
terms of the liberty so given; for any attempt to trade at such
a port during such a stay, as by shipping or landing goods, will
amount to a species of deviation which will discharge the
underwriters, unless the ship have also liberty to trade, as well
as to touch and stay at such a place. 1 Marsh. Ins. 275; 1 Esp.
R. 610; 5 Esp. R. 96.
TOUJOURS ET UNCORE PRIST. Always, and still ready. This is the
name of a plea of tender, as where a man is indebted to another,
and he tenders the amount due, and after wards the creditor
brings a suit, the defendant may plead the tender, and add that
he has always been and is still ready to pay what he owes, which
may be done by the formula toujours et uncore prist. He must then
pay the money into court, and if the issue be found for him, the
defendant will be exonerated from costs, and the plaintiff made
justly liable for them. 3 Bouv. Inst. n. 2923 Vide Tout temps
prist.
TOUR D'ECHELLE, French law. Tour d'echelle is a right which the
owner of an estate has of placing ladders on his neighbor's
property to facilitate the reparation of a party wall, or of
buildings which are supported by that wall. It is a species of
servitude. Lois des Bat. part 1, c. 3, sect. 2, art. 9, §1.
2. In another sense by this term, or echellage, is understood
the space of ground left unoccupied around a building for the
purpose of enabling the owner to repair it with convenience;
this is not a servitude, but an actual corporeal property. Td.
part 1, c. 3, sect. 2, art. 9, §2.
TOUT TEMPS PRIST, pleading. These old French words signify
always ready. The name of a plea to an action where the defendant
alleges that he has always been ready to perform what is demanded
of him; and he adds that he is still ready, uncore prist. (q.
v.) 3 Bl. Com. 303; 20 Vin. Ab. 306; Com. Dig. Pleader, 2 Y 5.
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TOWAGE, contracts. That which is given for towing ships in
rivers. Guidon de la Mer, ch. 16; Poth. Des Avaries, n. 147; 2
Chit. Com. Law, 16.
TOWN. This word is used differently in different parts of the
United States. In Pennsylvania and some other of the middle
states, it signifies a village or a city. In some of the
northeastern states it denotes a subdivision of a county, called
in other places a township.
TRADE. In its most extensive signification this word includes
all sorts of dealings by way of Bale or exchange. In a more
limited sense it signifies the dealings in a particular business,
as the India trade; by trade is also understood the business of
a particular mechanic, hence boys are said to be put apprentices
to learn a trade, as the trade of a carpenter, shoemaker, and the
like. Bac. Ab. Master and Servant, D 1. Trade differs from art.
(q. v.)
2. It is the policy of the law to encourage trade, and
therefore all contracts which restrain the exercise of a man's
talents in trade are detrimental to the commonwealth, and
therefore void; though he may bind himself not to exercise a
trade in a particular place, for, in this last case, as he may
pursue it in another place, the commonwealth has the benefit of
it. 8 Mass. 223; 9 Mass. 522. Vide Ware R. 257, 260 Com. Dig. h.
t.; Vin. Ab. h. t.
TRADE MARKS. Signs, writings or tickets put upon manufactured
goods, to distinguish them from others.
2. It seems at one time to have been thought that no man
acquired a right in a particular mark or stamp. 2 Atk. 484. But
it was afterwards considered that for one man to use as his own
another's name or mark, would be a fraud for which an action
would lie. 3 Dougl. 293; 3 B. & C. 541; 4 B. & Ad. 410. 1 court
of equity will restrain a party from, using the marks of another.
Eden, Inj. 314l; 2 Keene, 213; 3 Mylne & C. 339.
3. The Monthly Law Magazine for December 1840, in an article
copied into the American Jurist, vol. 25, p. 279, says, "The
principle to be extracted, after an examination of these cases,
appear to be the following: First, that the first producer or
vendor of any article gains no right of property in that article
so as to prevent others from manufacturing, producing or vending
it.
4. Secondly, that although any other person may manufacture,
produce, and sell any such article, yet he must not, in manner,
either by using the same or similar marks, wrappers, labels, or
devices, or colorable imitations thereof, or otherwise, hold out
to the public that he is manufacturing, producing, or selling the
identical article, prepared, manufactured, produced, or sold by
the other; that is to say, he may not make use of the name or
reputation of the other in order to sell his own preparation.
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5. Thirdly, the right to use or restrain others from using any
mark or name of a firm, is in the nature of goodwill, and
therefore goes to the surviving or continuing partner in such
firm, and the personal representative of a deceased partner has
an interest in it.
6. Fourthly, that courts of equity in these cases only act as
auxiliary to the legal right, and to prevent injury, and give a
relief by account, when damages at law would be inadequate to the
injury received; and they will not interfere by injunction in
the first instance, unless a good legal title is shown, and even
then they never preclude the parties from trying the right at
law, if desired.
7. Fifthly, if the legal title be so doubtful as not to induce
the court to grant the injunction, yet it will put the parties in
a position to try the legal right at law, notwithstanding the
suit.
8. Sixthly, that before the party is entitled to relief in
equity, he must truly represent his title, and the mode in which
he became possessed of the article for the vending of which he
claims protection; it being a clear rule of courts of equity not
to extend their protection to persons whose case is not founded
on truth."
9. In France the law regulates the rights of merchants and manu
facturers as to their trade marks with great minuteness. Dall.
Dict. mot Propriete Industrielle. See, generally, 4 Mann. & Gr.
357; B. & C. 541; 5 D. & R. 292; 2 Keen, 213; and Deceit.
TRADER. One who makes it his business to buy merchandise or
goods and chattels, and to sell the same for the purpose of
making a profit. The quantum of dealing is immaterial, when an
intention to deal generally exists. 3 Stark. 56; 2 C. & P. 135;
1 T. R. 572.
2. Questions as to who is a trader most frequently arise under
the bankrupt laws, and the most difficult among them are those
cases where the party follows a business which is not that of
buying and selling principally, but in which he is occasionally
engaged in purchases and sales.
3. To show who is a trader will be best illustrated by a few
examples: A farmer who in addition to his usual business,
occasionally buys a horse not calculated for his usual
occupation, and sells him again to make a profit, and who in the
course of two years had so bought and sold five or six horses,
two of which had been sold after be bad bought them for the sake
of a guinea profit, was held to be a trader. 1 T. R. 537, n.; 1
Price, 20. Another firmer who bought a large quantity of
potatoes, not to be used on his farm, but merely to sell again
for a profit, was also declared to be a trader. 1 Str. 513. See 7
Taunt. 409; 2 N. R. 78; 11 East, 274. A butcher who kills only
such cattle as
he has reared himself is not a trader, but if he buy them and
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kill and sell them with a view to profit, he is a trader. 4 Burr.
21, 47. See 2 Rose, 38; 3 Camp. 233 Cooke, B. L. 48, 73; 2
Wils. 169; 1 Atk. 128; Cowp.745. A brickmaker who follows the
business, for the purpose of enjoying the profits of his real
estate merely, is not a trader; but when he buys the earth by
the load or otherwise, and manufactures it into bricks, and sells
them with a view to profit, he is a trader. Cook, B. L. 52, 63;
7 East, 442; 3 C. & P. 500; Mood. & M. 263 2 Rose, 422; 2 Glyn
& J. 183; 1 Bro. C. C. 173. For further examples, the reader is
referred to 4 M. & R. 486; 9 B. & C. 577; 1 T. R. 34; 1 Rose,
316; 2 Taunt. 178; 2 Marsh. 236; 3 M. & Scott. 761; 10 Bing.
292 Peake, 76; 1 Vent. 270; 3 Brod. & B. 2 6 Moore, 56.
TRADITIO BREVIS MANUS. This term is used in the civil law to
designate the delivery of a thing, by the mere consent of the
parties; as, when Peter holds the property of Paul as bailee,
and, afterwards, he buys it, it is not necessary that Paul should
deliver the property to Peter, and he should re-deliver it to
Paul, the mere consent of the parties transfers the title to
Paul. 1 Duverg. n. 252; 6 Shipl. R. 231; Poth. Pand. lib. 50,
CDLXXIV.; 1 Bouv. Inst. n. 944.
TRADITION, contracts, civil law. The act by which a thing is
delivered by one or more persons to one or more others.
2. In sales it is the delivery of possession by the proprietor
with an intention to transfer the property to the receiver. Two
things are therefore requisite in order to transmit property in
this way: 1. The intention or consent of the former owner to
transfer it; and, 2. The actual delivery in pursuance of that
intention.
3. Tradition is either real or symbolical. The first is where
the ipsa corpora of movables are put into the hands of the
receiver. Symbolical tradition is used where the thing is
incapable of real delivery, as, in immovable subjects, such as
lands and houses; or such as consist in jure (things
incorporeal) as things of fishing and the like. The property of
certain movables, though they are capable of real delivery, may
be transferred by symbol. Thus, if the subject be under look and
key, the delivery of the key is considered as a legal tradition
of all that is contained in the repository. Cujas, Observations,
liv. 11, ch. 10; Inst. lib. 2, t. 1, §40; Dig. lib. 41, t. 1,
1. 9; Ersk. Princ. Laws of Scotl. bk. 2, t. 1, s. 10, 11; Civil
Code Lo. art. 2452, et seq.
4. In the common law the term used in the place of tradition is
delivery. (q. v.)
TRAFFIC. Commerce, trade, sale or exchange of merchandise,
bills, money and the like.
TRAITOR, crimes. One guilty of treason.
2. The punishment of a traitor is death.
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TRAITOROUSLY, pleadings. This is a technical word, which is
essential in an indictment for treason in order to charge the
crime, and which cannot be supplied by any other word, or any
kind of circumlocution. Having been well laid in the statement of
the treason itself, it is not necessary to state every overt act
to have been traitorously committed. Vide Bac. Ab. Indictment, G
1; Com. Dig. Indictment, G. 6; Hawk. B. 2, c. 25, s. 55; 1
East's P. C. 115; 2 Hale, 172, 184; 4 Bl. Com. 307; 8 Inst.
15; Cro. C. C. 87; Carth. 319; 2 Salk. 683; 4 Harg. St. Tr.
701; 2 Ld. Raym. 870; Comb. 259; 2 Chit. Cr. Law, 104, note
(b).
TRANSACTION, contracts, civil law. An agreement between two or
more persons, who for the purpose of preventing or putting an end
to a law-suit, adjust their differences by mutual consent, in the
manner which they agree on; in Louisiana this contract must be
reduced to writing. Civil Code of Louis, 3038.
2. Transactions regulate only the differences which appear to
be clearly comprehended in them by the intentions of the parties,
whether they be explained in a general or particular manner,
unless it be the necessary consequence of what is expressed; and
they do not extend to differences which the parties, never
intended to include in them. Id. 3040.
3. To transact, a man must have the capacity to dispose of the
things included in the transaction. Id. 3039; 1 Domat, Lois
Civiles, liv. 1, t. 13, s. 1; Dig. lib. 2, t. 15, l. 1; Code
lib. 2, t. 4, 1. 41. In the common law this is called a
compromise. (q. v.)
TRANSCRIPT. A copy of an original writing or deed.
2. In Pennsylvania, the act of assembly of March 20th, 1810, s.
10, calls a copy of the proceedings before a justice of the peace
in any case, a transcript: the proper term would be an
exemplification.
TRANSFER, cont. The act by which the owner of a thing delivers
it to another person, with the intent of passing the rights which
he has in it to the latter.
2. It is a rule founded on the plainest dictates of common
sense, adopted in all systems of law, that no one can transfer a
right to another which he has not himself: nemo plus juris ad
alienum transfers potest quam ipse habet. Dig. 50, 17, 54 10 Pet.
161, 175; Co. Litt. 305.
3. To transfer means to change; for example, one may transfer
a legacy, either, 1st. By the change of the person of the
legatee, as, I bequeath to Primus a horse wliich I before
bequeathed to Secundus. 2d. By the change of the thing
bequeathed, as, I bequeath to Tertius my History of the United
States instead of my copy of the Life of Washington. 3d. By the
change of the person who was bound to pay the legacy, as, I
direct that the sun) of one bundred dollars, which I directed
should be charged upon my house which I gave to Quartus, shall be
paid by my executors.
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TRANSFEREE. He to whom a transfer is made.
TRANSFERENCE, Scotch law. The name of an action by which a
suit, which was pending at the time the parties died, is
transferred from the deceased to his representatives, in the same
condition in which it stood formerly. If it be the pursuer who is
dead, the action is called a transference active; if the
defender, it is a transference passive. Ersk. Prin. B. 4, t. 1,
n. 32.
TRANSFEROR. One who makes a transfer.
TRANSGRESSION. The violation of a law.
TRANSHIPMENT, mar. law. The act of taking the cargo out of one
ship and loading it in another.
2. When this is done from necessity, it does not affect the
liability of an insurer on the goods. 1 Marsh. Ins. 166; Abbott
on Shipp. 240. But when the master tranships goods without
necessity, he is answerable for the loss of them by capture by
public enemies. 1 Gallis. R. 443.
TRANSIRE, Eng. law. A warrant for the custom-house to let goods
pass: a permit. (q. v.) See, for a form of a transire, Harg. L.
Tr. 104.
TRANSITORY. That which lasts but a short time, as transitory
facts that which may be laid in different places, as a transitory
action.
TRANSITORY ACTION, pract., plead. Actions are transitory when
the venue may lawfully be laid in any county, though the cause of
action arose out of the jurisdiction of the court. Vide Actions,
and 1 Chit. Pl. 273; Com. Dig. Actions, N 12; Cowp. 161; 9
Johns. R. 67; 14 Johns. R. 134; 3 Bl. Com. 294; 3 Bouv. Inst.
n. 2645. Vide Bac. Ab. Actions local and transitory.
TRANSITUS. The act of going, or of removing goods, from one
place to another. The transitus of goods from a seller commences
the moment he has delivered them to an agent for the purpose of
being carried to another place, and ends when the delivery is
complete, which delivery may be by putting the purchaser into
actual possession of the goods, or by making him a symbolical
delivery. 2 Hill, S. C. 587; 5 John. 335; 2 Pick. 599; 11
Pick.. 352; 2 Aik. 79; 5 Ham. 88; 6 Rand. 473. See Stoppage in
transitu.
TRANSLATION. The copy made in one language of what has been
written, or spoken in another.
2. In pleading, when a libel or an agreement, written in a
foreign language, must be averred, it is necessary that a
translation of it should also be given.
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3. In evidence, when a witness is unable to speak the English
language so as to convey his ideas, a translation of his
testimony must be made. In that case, an interpreter should be
sworn to translate to him, on oath, the questions propounded to
him, and to translate to the court and jury his answers. 4 Mass.
81; 5 Mass. 219; 2 Caines' Rep. 155; Louis. Code of Pr. 784,
5.
4. It has been determined that a copyright may exist in a
translation, as a literary work. 3 Ves. & Bea. 77; 2 Meriv. 441,
n.
5. In the ecclesiastical law, translation denotes the removal
from one place to another.; as, the bishop was translated from
the diocese of A, to that of B. In the civil law, translation
signifies the transfer of property. Clef des Lois Rom. h. t.
6. Swinburne applies the term translation to the bestowing of a
legacy which had been given to one, on another; this is a
species of ademption, (q. v.) but it differs from it in this,
that there may be an ademption without a translation, but there
can be no translation without an ademption. Bac. Ab. Legacies, C.
7. By translation is also meant the transfer of property, but
in this sense it is seldom used. 2 Bl. Com. 294. Vide
Interpreter.
TRANSMISSION, civ. law. The right which heirs or legatees may
have of passing to their successors, the inheritance or legacy to
which they were entitled, if they happen to die without having
exercised their rights. Domat, liv. 3, t. 1, s. 10; 4 Toull. n.
186; Dig. 50, 17, 54; Code, 6, 51.
TRANSPORTATION, punishment. In the English law, this punishment
is inflicted by virtue of sundry statutes; it was unknown to the
common law. 2 H. Bl. 223. It is a part of the judgment or
sentence of the court, that the party shall be transported or
sent into exile. 1 Ch. Cr. Law, 789 to 796: Princ. of Pen. Law,
c. 4 §2.
TRAVAIL. The act of child-bearing.
2. A woman is said to be in her travail from the time the pains
of child-bearing commence until her delivery. 5 Pick. 63; 6
Greenl. R. 460.
3. In some states, to render the mother of a bastard child a
competent witness in the prosecution of the alleged father, she
must have accused him of being the father during the time of her
travail. 2 Root, R. 490; 1 Root, R. 107; 2 Mass. R. 443; 5
Mass. R. 518; 8 Greenl. R. 163; 3 N. H. Rep. 135; 6 Greenl. R.
460. But in Connecticut, when the state prosecutes, the mother is
competent, although she did not accuse the father during her
travail. 1 Day, R. 278.
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TRAVERSE, crim. law practice. This is a technical term, which
means to turnover: it is applied to an issue taken upon an
indictment for a misdemeanor, and means nothing more than turning
over or putting off the trial to a following sessions or assize;
it has, perhaps with more propriety, been applied to the denying
or taking issue upon an indictment, without reference to the
delay of trial. Dick. Sess. 151; Burn's Just. h. t.; 4 Bl. Com.
351.
TRAVERSE, pleading. This term, from the French traverser,
signifies to deny or controvert anything which is alleged in the
declaration, plea, replication or other pleadings; Lawes' Civ.
Plead. 116, 117 there is no real distinction between traverses
and denials, they are the same in substance. Willes. R. 224.
however, a traverse, in the strict technical meaning, and more
ordinary acceptation of the term, signifies a direct denial in
formal words, "without this that," &c. Summary of Pleadings, 75;
1 Chit. Pl. 576, n. a.
2. All issues are traverses, although all traverses cannot be
said to be issues, and the difference is this; issues are where
one or more facts are affirmed on one side, and directly and
merely denied on the other; but special traverses are where the
matter asserted by one party is not directly and merely denied or
put in issue. by the other, but he alleges some new matter or
distinction inconsistent with what is previously stated, and then
distinctly excludes the previous statement of his adversary. The
new matter so alleged is called the inducement to the traverse,
and the exclusion of the previous statement, the traverse itself.
Lawes' Civ. Pl. 117. See, in general, 20 Vin. Abr. 339; Com.
Dig. Pleader, G; Bac. Abr. Pleas, H; Yelv. R. 147, 8; 1 Saund.
22, n. 2; Gould. on Pl. ell. 7 Bouv. Inst. Index, n. t.
3. A traverse upon a traverse is one growing out of the same
point, or subject matter, as is embraced in a preceding traverse
on the other side. Gould on Pl. ch. 7, §42, n. It is a general
rule, that a traverse, well tendered on one side, must be
accepted on the other. And hence it follows, as a general rule,
that there cannot be a traverse upon a traverse, if the, first
traverse is material. The meaning of the rule is, that when one
party has tendered a material traverse, the other cannot leave it
and tender another of his own to the same point upon the
inducement of the first traverse, but must join in that first
tendered; otherwise the parties might alternately tender
traverses to each other, in unlimited succession, without coming
to an issue. Gould on Pl. ch. 7, §42.
4. In cases where the first traverse is immaterial, there may
be a traverse upon a traverse. Id. ch. 7, §43. And where the
plaintiff might be ousted of some right or liberty the law allows
him, there may be a traverse upon a traverse, although the first
traverse include what is material. Poph. 101; Mo. 350; Com.
Dig. Pleader, G 18; Bac. Abr. Pleas, H 4; Hob. 104, marg.;
Cro. Eliz. 99, 418; Gould on Pl. ch. 7, 44.
5. Traverses may be divided into general traverses, (q. v.) and
special traverses. (q. v.) There is a third kind called a common
traverse. (q. v.)
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TREASON, crim. law. This word imports a betraying, treachery,
or breach of allegiance. 4 Bl. Com. 75.
2. The constitution of the United States, art. 3, s. 3, defines
treason against the United States to consist only in levying war
(q. v.) against them, or in adhering to their enemies, giving
them aid or comfort. This offence is punished with death. Act of
April 30th, 1790, 1 Story's Laws U. S. 83. By the same article of
the constitution, no person shall be convicted of treason, unless
on the testimony of two witnesses to the same overt act, or on
confession in open court. Vide, generally, 3 Story on the Const.
ch. 39, p. 667; Serg. on the Const. ch. 30; United States v.
Fries, Pamph.; 1 Tucker's Blackst. Comm. Appen. 275, 276; 3
Wils. Law Lect. 96 to 99; Foster, Disc. I; Burr's Trial; 4
Cranch, R. 126, 469 to 508; 2 Dall. R. 246; 355; 1 Dall. Rep.
35; 3 Wash. C. C. Rep. 234; 1 John. Rep. 553 11 Johns. R. 549;
Com. Dig. Justices, K; 1 East, P. C. 37 to 158; 2 Chit. Crim.
Law, 60 to 102; Arch. Cr. Pl. 378 to 387.
TREASURE TROVE. Found treasure.
2. This name is given to such money or coin, gold, silver,
plate, or bullion, which having been hidden or concealed in the
earth or other private place, so long that its owner is unknown,
has been discovered by accident. Should the owner be found it
must be restored to him; and in case of not finding him, the
property, according to the English law, belongs to the king. In
the latter case, by the civil law, when the treasure was found by
the owner of the soil, he was considered as entitled to it by the
double title of owner and finder; when found on another's
property, one-half belonged to the owner of the estate, and the
other to the finder; when found on public property, it belonged
one-half to the public treasury, and the other to the finder.
Lecons du Dr. Rom. §350-352. This includes not only gold and
silver, but whatever may constitute riches, as vases, urns,
statues, &c.
3. The Roman definition includes the same things under the word
pecunia; but the thing found must have a commercial value for
ancient tombs would not be considered a treasure. The thing must
have been hidden or concealed in the earth; and no one must be
able to establish his right to it. It must be found, by a pure
accident, and not in consequence of search. Dall. Dict.
Propriete, art. 3, s. 3.
4. According to the French law, le tresor est toute chose
cachee ou enfouie,
sur laquelle personne ne peut justifier sa propriete, et qui est
decouverte par lo pur effet du hasard. Code Civ. 716. Vide 4
Toull. n. 34. Vide, generally, 20 Vin. Abr. 414; 7 Com. Dig.
649; 1 Bro. Civ. Law, 237; 1 Blackstone's Comm. 295; Poth.
Traite du Dr. de Propreite, art. 4.
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TREASURER. An officer entrusted with the treasures or money
either of a private individual, a corporation, a company, or a
state.
2. It is his duty to use ordinary diligence in the performance
of his office, and to account with those whose money he has.
TREASURER. OF THE MINT. An officer created by the act of
January 18, 1837, whose duties are prescribed as follows: The
treasurer shall receive and safely keep all moneys which shall be
for the use and support of the mint; shall keep all the current
accounts of the mint, and pay all moneys due by the mint, on
warrants from the director. He shall receive all bullion brought
to the mint for coinage; shall be the keeper of all bullion and
coin in the mint, except while the same is legally placed in the
hands of other officers, and shall, on warrants from the
director, deliver all coins struck at the mint to the persons to
whom they shall be legally payable. And he shall keep regular and
faithful accounts of all the transactions of the mint, in bullion
and coins, both with the officers of the mint and the depositors;
and shall present, quarter-yearly, to the treasury department of
the United States, according to such forms as shall be prescribed
by that department, an account of the receipts and dishursements
of the mint, for the purpose of being adjusted and settled.
2. This officer is required to give bond to the United States
with one or more sureties to the satisfaction of the secretary of
the treasury, in the sum of ten thousand dollars. His salary is
two thousand dollars.
TREASURER OF THE UNITED STATES, government. Before entering on
the duties of his office, the treasurer is required to give bond
with sufficient sureties, approved by the secretary of the
treasury and the first comptroller, in the sum of one hundred and
fifty thousand dollars, payable to the United States, with
condition for the faithful performance of the duties of his
office, and the fidelity of the. persons by him employed. Act of
2d September, 1789, s. 4.
2. His principal duties are, 1. To receive and keep the moneys
of the United States, and disburse the same by warrants drawn by
the secretary of the treasury, countersigned by the proper
officer, and recorded according to law. Id. s. 4. 2. To take
receipts for all moneys paid by him.
3. To render his account to the comptroller quarterly, or
oftener if required, and transmit a copy thereof, when settled,
to the secretary of the treasury. 4. To lay before each house, on
the third day of each session of congress, fair and accurate
copies of all accounts by him, from time to time, rendered to and
settled with the comptroller, and a true and perfect account of
the state of the treasury. 5. To submit at all times, to the
secretary of the treasury and the comptroller, or either of them,
the inspection of the moneys in his bands. Id. s. 4. 3. His
compensation is three thousand dollars -per annum. Act of 20th
February, 1804, s. 1.
TREASURY. The place where treasure is kept the office of a
treasurer. The term is more usually applied to the public than to
a private treasury. Vide Department of the Treasury o the United
States.
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TREATY, international law. A treaty is a compact made between
two or more independent nations with a view to the public welfare
treaties are for a perpetuity, or for a considerable time. Those
matters which are accomplished by a single act, and are at once
perfected in their execution, are called agreements, conventions
and pactions.
2. On the part of the United States, treaties are made by the
president, by and with the consent of the senate, provided
two-thirds of the senators present concur. Const. article 2, s.
2, n. 2.
3. No state shall enter into any treaty, alliance or
confederation; Const. art. 1, s. 10, n. 1; nor shall any state,
without the consent of congress, enter into any agreement or
compact with another state, or with a foreign power. Id. art. 1,
see. 10, n. 2; 3 Story on the Const. §1395.
4. A treaty is declared to be the supreme law of the land, and
is therefore obligatory on courts; 1 Cranch, R. 103; 1 Wash. C.
C. R. 322 1 Paine, 55; whenever it operates of itself without
the aid of a legislative provision; but when the terms of the
stipulation import a contract, and either of the parties engages
to perform a particular act, the treaty addresses itself to the
polit-ical, not the judicial department, and the legislature must
execute the contract before it can become a rule of the court. 2
Pet. S. C. Rep. 814. Vide Story on the Constitut. Index, h. t.;
Serg. Constit. Law, Index, h. t.; 4 Hall's Law Journal, 461; 6
Wheat. 161: 3 Dall. 199; 1 Kent, Comm. 165, 284.
5. Treaties are divided into personal and real. The personal
relate exclusively to the persons of the contracting parties,
such as family alliances, and treaties guarantying the throne to
a particular sovereign and his family. As they relate to the
persons they expire of course on the death of the sov-ereign or
the extinction of his family. Real treaties relate solely to the
subject-matters of the convention, independently of the persons
of the contracting parties, and continue to bind the state,
although there may be changes in its constitution, or in the
persons of its rulers. Vattel, Law of Nat. b. 2, c. 12, 183-197.
TREATY OF PEACE. A treaty of peace is an agreement or contract
made by belligerent powers, in which they agree to lay down their
arms, and by which they stipulate the conditions of peace, and
regulate the manner in which it is to be restored and supported
Vatt. lib. 4, c. 2, §9.
TREBLE COSTS, remedies. By treble costs, in the English law, is
understood, 1st. The usual taxed costs. 2d. Half thereof. 3d.
Half the latter; so that in effect the treble costs amount only
to the taxed costs, and three-fourths thereof. 1 Chitty, R. 137;
1 Chitt. Pract. 27.
2. Treble costs are sometimes given by statutes, and this is
the construction put upon them.
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3. In Pennsylvania the rule is different; when an act of
assembly gives treble costs, the party is allowed three times the
usual costs, with the exception, that the fees of the officers
are not to be trebled, when they are not regularly or usually
payable by the defendant. 2 Rawle, R. 201.
4. And in New York the directions of the statute are to be
strictly pursued, and the costs are to be trebled. 2 Dunl. Pr.
731.
TREBLE DAMAGES, remedies. In actions arising ex contractu some
statutes give treble damages; and these statutes have been
liberally construed to mean actually treble damages; for
example, if the jury give twenty dollars damages for a forcible
entry the court will award forty dollars more, so as to make the
total amount of damages sixty dollars. 4 B. & C. 154; M'Clell.
Rep. 567.
2. The construction on the words treble damages, is different
from that which has been put on the words treble costs. (q. v.)
Vide 6 S. & R. 288; 1 Browne, R. 9; 1 Cowen, R. 160, 175,176,
584; 8 Cowen, 115.
TREBUCKET. The name of an engine of punishment, said to be
synonymous with tumbrel. (q. v.)
TREE. A woody plant, which in respect of thickness and height
grows greater than any other plant.
2. Trees are part of the real estate while growing, and before
they are severed from the freehold; but as soon as they are cut
down, they are personal property.
3. Some trees are timber trees, while others do not bear that
denomination. Vide Timber, and 2 Bl. Com. 281.
4. Trees belong to the owner of the land where they grow, but
if the roots go out of one man's land into that of another, or
the branches spread over the adjoining estates, such roots or
branches may be cut off by the owner of the land into which they
thus grow. Rolle's R. 394; 3 Bulstr. 198; Vin. Ab. Trees, E;
and tit. Nuisance, W 2, pl. 3; 8 Com. Dig. 983; 2 Com. Dig.
274; 10 Vin. Ab. 142; 20 Viii. Ab. 415; 22 Vin. Ab. 583; 1
Supp. to Ves. jr. 138; 2 Supp. to Ves. jr. 162, 448; 6 Ves.
109.
5. When the roots grow into the adjoining land, the owner of
such land may lawfully claim a right to hold the tree in common
with the owner of the land where it was planted; but if the
branches only overshadow the adjoining land, and the root does
not enter it, the tree wholly belongs owner of the estate where
the roots grow. 1 Swift's Dig. 104; 1 Hill. Ab. 6; 1 Ld. Raym.
737. Vide 13 Pick. R. 44; 1 Pick., R. 224; 4 Mass. R. 266; 6
N. H. Rep. 430; 3 Day, 476; 11 Co. 50; Rob. 316; 2 Rolle, It.
141 Moo. & Mal. 112; 11 Conn. R. 177; 7 Conn. 125; 8 East, R.
394; 5 B. & Ald. 600; 1 Chit. Gen. Pr. 625; 2 Phil. Ev. 138;
Gale & Wheat. on Easem. 210; Code Civ. art. 671; Pardes. Tr.
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des Servitudes, 297; Bro. Ab. Demand, 20; Dall. Dict. mot
Servitudes, art. 3 §8; 2 P. Wms. 606; Moor, 812; Hob. 219;
Plowd. 470; 5 B. & C. 897; S. C. 8 D. & R. 651. When the tree
grows directly on the boundary line, so that the Iine passes
through it, it is the property of both owners, whether it be
marked as a boun dary or not. 12 N. H. Rep. 454.
TRESAILE or TRESAYLE, domestic relations. The grandfather's
grandfather. 1 Bl. Com. 186.
TRESPASS torts. An unlawful act committed with violence, ti et
armis, to the person, property or relative rights of another.
Every felony includes a tres-pass, in common parlance, such acts
are not in general considered as tres-passes, yet they subject
the offender to an action of trespass after his conviction or
acquittal. See civil remedy.
2. There is another kind of trespass, which is committed
without force, and is known by the name of trespass on the case.
This is not generally known by the name of trespass. See Case.
3. The following rules characterize the injuries which are
denominated tres-passes, namely: 1. To determine whether an
injury is a trespass, due regard must be had to the nature of the
right affected. A wrong with force can only be offered to the
absolute rights of personal liberty and security, and to those of
property corporeal; those of health, reputation and in property
incorporeal, together with the relative rights of persons, are,
strictly speaking, incapable of being injured with violence,
because the subject-matter to which they relate, exists in either
case only in idea, and is not to be seen or handled. An exception
to this rule, however, often obtains in the very instance of
injuries to the relative rights of persons; and wrongs offered
to these last are frequently denominated trespasses, that is,
injuries with force.
4. - 2. Those wrongs alone are characterized as trespasses the
immediate consequences of which are injurious to the plaintiff;
if the damage sustained is a remote consequence of the act, the
injury falls under the denomination of trespass on the case.
5. - 3. No act is injurious but that which is unlawful; and
therefore, where the force applied to the plaintiff's property or
person is the act of the law itself, it constitutes no cause of
complaint. Hamm. N. P. 34; 2 Pbil. Ev. 131; Bac. Abr. h. t.;
15 East R. 614; Bouv. Inst. Index, h. t. As to what will justify
a trespass, see Battery.
TRESPASS, remedies. The name of an action, instituted for the
recovery of damages, for a wrong committed against the plaintiff,
with immediate force; as an assault and battery against the
person; an unlawful entry into his, land, and an unlawful injury
with direct force to his personal property. It does not lie for a
mere non-feasance, nor when the matter affected was not tangible.
2. The subject will be considered with regard, 1. To the
injuries for which trespass may be sustained. 2. The declaration.
3. The plea. 4. The judgment.
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3. - §1. This part of the subject will be considered with
reference to injuries, 1. The person. 2. To personal property. 3.
To real property. 4. When trespass can or cannot be justified by
legal proceedings.
4. - 1. Trespass is the proper remedy for an assault and
battery, wounding, imprisonment, and the like, and it also lies
for an injury to the relative rights when occasioned by force;
as, for beating, wounding, and imprisoning a wife or servant, by
which the plaintiff has sustained a loss. 9 Co. 113; 10 Co. 130.
Vide Parties to actions; Per guod, and 1 Chit. Pr. 37.
5. - 2. The action of trespass is the proper remedy for
injuries to personal property, which may be committed by the
several acts of unlawfully striking, chasing, if alive, and
carrying away to the damage of the plaintiff, a personal chattel,
1 Saund. 84, n. 2, 3; F. N. B. 86; Bro. Trespass, pl. 407;
Toll. Executors, 112; Cro. Jac. 362, of which another is the
owner and in possession; but a naked possession or right to
immediate possession, is a sufficient title to support this
action. 1 T. R. 480; and gee 8. John. R. 432; 7 John. R. 535;
11 John. R. 377; Cro. Jac. 46; 1 Chit. Pl. 165.
6. - 3. Trespass is the proper remedy for the several acts of
breaking through an enclosure, and coming into contact with any
corporeal hereditament, of which another is the owner and in
possession, and by which a damage has ensued. There is an ideal
fence, reaching in extent upwards, a superficie terrae usque ad
caelum, which encircles every man's possessions, when he is owner
of the surface, and downwards as far as his property descends;
the entry, therefore, is breaking through this enclosure, and
this generally constitutes, by itself, a right of action. The
plaintiff must be the owner, and in possession. 5 East, R. 485;
9 John. R. 61; 12 John. R. 183; 11 John. R. 385; Id. 140; 3
Hill, R. 26. There must have been some injury, however, to
entitle the plaintiff to recover, for a man in a balloon may
legally be said to break the close of the plaintiff, when passing
over it, as he is wafted by the wind, yet as the owner's
possession is not by that act incommoded, trespass could not
probably be maintained; yet, if any part of the machinery were
to fall upon the land, the aeronaut could not justify an entry
into it to remove it, which proves that the act is not
justifiable. 19 John. 381 But the slightest injury, as treading
down the grass, is sufficient. Vide 1 Chit. Pl. 173; 2 John, R.
357: 9 John. R. 113, 377; 2 Mass. R. 127; 4 Mass. R. 266; 4
John. R . 150.
7. - 4. It is a general rule that when the defendant has acted
under regular process of a court of competent jurisdiction, or of
a single magistrate having jurisdiction of the subject-matter, it
is a sufficient justification to him; but when the court has no
jurisdiction and the process is wholly void, the defendant cannot
justify under it.
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8. But there are some cases, where an officer will not be
justified by the warrant or authority of a court, having
jurisdiction. These exceptions are generally founded on some
matter of public policy or convenience; for example, when a
warrant was issued against a mail carrier, though the officer was
justified in serving the warrant, he was liable to an indictment
for detaining such mail carrier under the warrant, for by thus
detaining him, he was guilty of "wilfully obstructing or
retarding the passage of the mail, or of the driver or carrier,"
contrary to the provisions of the act of congress of 1825, ch.
275, s. 9. 8 Law Rep. 77. See Ambassador; Justification.
9. - §2. The declaration should contain a concise statement of
the injury complained of, whether to the person, personal or real
property, and it must allege that the injury was conimitted vi et
armis and contra pacem; in which particulars it differs from a
declaration in case. See Case, remedies.
10. - §3. The general issue is not guilty. But as but few
matters can be given in evidence under this plea, it is proper to
plead special matters of defence.
11. - §4. The judgment is generally for the damages assessed by
the jury, and for costs. When the judgment is for the defendant,
it is that be recover his costs. Vide Irregularity; Regular and
Irregular process. Vide, generally, Bro. Ab. h. t.; Nelson's Ab.
h. t.; Bac. Ab. h. t.; Dane's Ab. h. t.; Com. Dig. h. t.;
Vin. Ab. h. t.; the various American and English Digests, h. t.;
2 Phil. Ev. 131; Ham. N. P. 33 to 265; Chit. Pr. Index, h. t.;
Rose. Civ. Ev. h. t.; Stark. Ev. h. t.; Bouv. Inst. Index, h.
t.
TRESPASS DE BONIS ASPORTATIS, practice. The action brought by
the owner of goods for unlawfully taking and carrying them away,
is so called. This action will lie for taking away another's
goods, even though he should return them, because by such taking
he has deprived the owner of his right to enjoy them. 1 Bouv.
Inst. n. 3611.
TRESPASS ON THE CASE, practice. The technical name of an
action, instituted for the recovery of damages caused by an
injury unaccompanied with force, or where the damages sustained
are only consequential. See Case, and 3 Bouv. Inst. n. 3482 to
3509.
TRESPASS QUARE CLAUSUM FREGIT, practice. This is the name of a
remedy which lies to recover damages when the defendant has
unlawfully and wrongfully trespassed upon the real estate of the
plaintiff.
2. This action must be brought by the tenant in possession, for
the injury is done to his possession. A remainder-man or
reversioner cannot sustain it. 3. As the injury must be committed
to the possession, one who has a mere incorporeal right cannot
maintain this action. 4 Bouv. Inst. n. 3600.
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TRESPASS VI ET ARMIS, practice. This is the remedy brought by
the plaintiff for an immediate injury committed with force. It is
distinguished from an action of trespass on the case, in this,
that in the latter the injury is consequential, and not committed
with direct force. 3 Bouv. Inst. n. 2871, 3482; 4 Bouv. Inst. n.
8583.
TRESPASSER. One who couimits a trespass.
2. A man is a trespasser by his own direct actohen he acts
without any excuse; or he may be a trespasser in the execution
of a legal process in an illegal manner; 1 Chit. Pl. 183: 2
John. Cas. 27; or when the court has no juris4iction over the
subject-matter when the court has jurisdiction but the proceeding
is defective and void; when the process has been misapplied, as,
when the defendant has taken A's goods on an execution against B;
when the process has been abused 1 Chit. Pl. 183-187 in all these
cases a man is a trespasser ab initio. And a person capable of
giving his assent may become a trespasser, by an act subsequent
to the tort. If, for example, a an take possession of land for
the use of another, the latter may afterwards recognize and adopt
the act; by so doing, he places himself in the situation of one
who had previously commanded it, and consequently is himself a
trespasser, if the other had no right to enter, nor he to command
the entry. 4 Inst. 317; Ham. N. P. 215. Vide 1 Rawle's R. 121.
TRET, weights and measures. An allowance made for the water or
dust that may be mixed with any commodity. It differs from tare.
(q. v.)
TRIAL, practice., The examination before a competent tribunal,
according to the laws, of the land, of the facts put in issue in
a cause, for the purpose of determining such issue. 4 Mason, 232.
2. There are various kinds of trial, the most common of which
is trial by jury. To insure fairdess this mode of trial lust be
in public; it is conducted by selecting a jury in the manner
prescribed by the local statutes, who must be sworn to try the
Hiatter in dispute according to law, and the evidence. Evidence
is then given by the party on whom rests the onus probandi or
burden of the proof, as the witnesses are called by a party they
are questioned by him, and after they have been examined, which
is called an examination in chief, they are subject to a
cross-examination by the other party as to every part of their
testimony. Having examined all his witnesses, the party who
supports the affirmative of the issue closes; and the other
party then calls his witnesses to explain his case or support his
part of the issue these are in the same manner liable to a
cross-examination. In case the parties should differ as to what
is to be given in evidence, the judge, must decide the matter,
and his decision is conclusive upon the parties so far as regards
the trial; but, in civil cases, a bill of exceptions (q. v.) way
be taken, so that the matter may be examined before another
tribunal. When the evidence has been closed, the counsel for the
party who supports the affirmative of the issue, then addressess
the jury, by recapitulating the evidence and applying the law to
the facts, and showing on what particular points he rests his
case. The opposite counsel then addresses the jury, enforcing in
like manner the facts and the law as applicable to his side of
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the case; to which the other counsel has a right to reply. It is
then the duty of the judge to sum up the evidence and explain to
the jury the law applicable to the case this is called his
charge. (q. v.) The jurors then retire to deliberate upon their
verdict, and, after having agreed upon it, they come into court
and deliver it in public. In case they cannot agree they may, in
cases of necessity, be discharged: but, it is said, in capital
cases they cannot be. Very just and merited encomiums have been
bestowed on this mode of trial, particularly in criminal cases.
Livingston's Rep. on the Plan of a Penal Code, 13 3 Story, Const.
1773. The learned Duponceau has given beautiful sketch of this
tribunal; "twelve invisible judges," said he, "whom the eye of
the corrupter cannot see, and the influence of the powerful
cannot reach, for they are nowhere to be found, until the moment
when the balance of justice being placed in their bands, they
hear, weigh, determine, pronounce, and immediately disappear, and
are lost in the crowd of their fellow citizens." Address at the
opening of the Law Academy at Philadelphia. Vide, generally, 4
Com. Dig. 783; 7 Id. 522; 21 Vin. Ab. 1 Bac. Ab. h. t.; 1
Sell. Pr. 405 4 Bl. Com. ch. 27; Chit. Pr. Index, h. t. 3 Bl.
Com. ch. 22; 15 Serg. & R. 61; 22 Vin. Ab. h. t. See Discharge
of jury; Jury.
3. Trial by certificate. By the English law, this is a mode of
trial allowed in such cases where the evidence of the person
certifying is the only proper criterion of the point in dispute.
For, when the fact in question lies out of the cognizance of the
court, the judges must rely on the solemn averments or
information of persons in such station, as affords them the most
clear and complete knowledge of the truth.
4. As therefore such evidence, if given to a jury, must have
been conclu-sive, the law, to save trouble and circuity, permits
the fact to be determined upon such certificate merely. 3 Bl.
Com. 333; Steph. Pl. 122.
5. Trial by the grand assise. This kind of trial is very
similar to the common trial by jury. There is only one case in
which it appears ever to have been applied, and there it is still
in force.
6. In a writ of right, if the defendant by a particular form of
plea appropriate to the purpose, (see the plea, 3 Chitty, 652,)
denied the right of the demandant, as claimed, he had the option,
till the recent abolition of the extravagant and barbarous method
of wager by battel, of either offering battel or putting himself
on the grand assise, to try whether he or the demandant "had the
greater right." The latter course he may still take; and, if he
does, the court award a writ for summoning four knights to make
the election of twenty other recognitors. The four knights and
twelve of the recognitors so elected, together making a jury of
sixteen, constitute what is called the grand assise; and when
assembled, they proceed to try the issue, or (as it is called in
this case) the mise, upon the question of right. The trial, as in
the case of a common jury, may be either at the bar or nisi
prius; and if at nisi prius, a nisi prius record is made up;
and the proceedings are in either case, in general, the same as
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where there is a common jury. See Wils. R. 419, 541; 1 Holt's N.
P. Rep. 657; 3 Chitty's Pl. 635; 2 Saund. 45 e; 1 Arch. 402.
Upon the issue or mise of right, the wager of battel or the grand
assise was, till the abolition of the former, and the latter
still is, the only legitimate method of trial; and the question
cannot be tried by a jury in the common form. 1 B. & P. 192. See
3 Bl. Com. 351.
7. Trial by inspection or examination. This trial takes place
when for the greater expedition of a cause, in some point or
issue being either the principal question or arising collaterally
out of it, being evidently the object of sense, the judges of the
court, upon the testimony of their own senses, shall decide the
point in dispute. For where the affirmative or negative of a
question is matter of such obvious determination, it is not
thought necessary to summon a jury to decide it; who are
properly called in to inform the conscience of the court in
respect of dubious facts, and, therefore, when the fact, from its
nature, must be evident to the court either from ocular
demon-stration or other irrefragable proof, there the law departs
from its usual resort, the verdict of twelve men, and relies ou
the judgment alone. For example, if a defendant pleads in
abatement of the suit that the plaintiff is dead, and one appears
and calls himself the plaintiff, which the defendant denies; in
this case the judges shall determine by inspection and
examination whether be be the plaintiff or not. 9 Co. 30; 3 Bl.
Com. 331; Steph. Pl. 123.
8. Judges of courts of equity frequently decide facts upon mere
inspection. The most familiar examples are those of cases where
the plaintiff prays an injun ction on an allegation of piracy or
infringement of a patent or copyright. 5 Ves. 709; 12 Ves. 270,
and the cases there cited. And see 2 Atk. 141; 2 B. & C. 80; 4
Ves. 681; 2 Russ. R. 385; 1 V. & B. 67; Cro. Jac. 230; 1
Dall. 166.
9. Trial by the record. This trial applies to cases where an
issue of nul tiel record is joined in any action. If, on one
side, a record be asserted to exist, and the opposite party deny
its existence, under the form of traverse, that there is no such
record remaining in court, as alleged, and issue be joined
thereon, this is called an issue of nul tiel record; and the
court awards, in such case, a trial by inspection and examination
of the record: Upon this the party, affirming its existence, is
bound to produce it in court, on a day given for the purpose, and
if he fail to do so, judgment is given for his adversary.
10. The trial by record is not only in use when an issue of
this kind happens to arise for decision, but it is the only
legitimate mode of trying such issue, and the parties cannot put
themselves upon the country. Steph. Pl. 122; 2 Bl. Com. 330.
11. Trial by wager of battel. In the old English law, this was
a barbarous mode of trying facts, among a rude people, founded on
the supposition that heaven would always interpose, and give the
victory to the champions of truth and innocence. This mode of
trial was abolished in England as late as the stat. 59 Geo. III.,
c. 46, A. D. 1818. It never was in force in the United States.
See 8 Bl. Com. 337; 1 Hale's Hist. 188; see a modern case, 1 B.
& A. 405.
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12. Trial by wager of law. This mode of trial has fallen into
complete disuse; but in point of law, it seems, in England, to
be still competent in most cases to which is anciently applied.
The most important and best established of these cases, is, the
issue of nil debet, arising in action of debt of simple contract,
or the issue of non detinet, in an action of detinue. In the
declaration in these actions, as in almost all others, the
plaintiff concludes by offering his suit (of which the ancient
meaning was followers or witnesses, though the words are now
refained as mere form,) to prove the truth of his claim. On the
other hand, if the defendant, by a plea of nil debet or non
detinet, deny the debt or detention, be may conclude by offering
to establish the truth of such plea, "against the plaintiff and
his suit, in such manner as the court shall direct." Upon this
the court awards the wager of law; Co. Ent. 119 a; Lill. Ent.
467; 3 Chit. Pl. 479; and the form of this proceeding, when so
awarded, is that the defendant brings into court with him eleven
of his neighbors, and for himself, makes oath that he does not
owe the debt or detain the property alleged and then the eleven
also swear that they believe him to speak the truth; and the
defendant is then entitled to judgment. 3 Bl. Com. 343; Steph.
Pl. 124. Blackstone compares this mode of trial to the canonical
purgation of the catholic clergy, and to the decisory oath of the
civil, law. See Oath, decisory.
13. Trial by witnesses. This species of trial by witnesses, or
per testes, is without the intervention of a jury
14. This is the only method of trial known to the civil law, in
which the judge is left to form in his own breast his sentence
upon the credit of the witnesses examined; but it is very rarely
used in the common law, which prefers the trial by jury in almost
every instance.
15. In England, when a widow brings a writ of dower, and the
tenant pleads that the tenant is not dead, this being looked upon
as a dilatory plea, is, in favor of the widow, and for greater
expedition, allowed to be tried by witnesses examined before the
judges; and so, says Finch, shall no other case in our law.
Finch's Law, 423. But Sir Edward Coke mentions others: as to try
whether the tenant in a real action was duly summoned; or the
validity of a challenge to a juror; so that Finch's observation
must be confined to the trial of direct and not collateral
issues. And in every case, Sir Edward Coke lays it down, that the
affirmative must be proved by two witnesses at least. 3 Bl. Com.
336.
TRIAL LIST. A list of cases marked down for trial for any one
term.
TRIBUNAL. The seat of a judge; the place where he administers
justice; but by this term is more usually understood the whole
body of judges who compose a jurisdiction sometimes it is taken
for the jurisdiction which they exercise.
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2. This term is Latin, and derives its origin from the elevated
seat where the tribunes administered justice.
TRIBUTE. A contribution which is sometimes raised by the
sovereign from his subject, to sustain the expenses of the state.
It is also a sum of money paid by one nation to another under
some pretended right. Wolff, §1145.
TRINEPOS. This term was used among the Romans to denote the
male descendant in the sixth degree in a direct line. It is still
employed in making genealogical tables.
TRINITY TERM, Eng. law. One of the four terms of the courts;
it begins on the 22d day of May, and ends on the 12th of June.
St. 11 G. IV., and 1 W. IV., c. 70. It was formerly a movable
term.
TRIORS, practice. Persons appointed according to law to try
whether a person challenged to the favor is or is not qualified
to serve on the jury. They do not exceed two in number without
the consent of the prosecutor and defendant, or some special case
is alleged by one of them, or when only one juror has been sworn
and two triors are appointed with him. Co. Litt. 158 a; Bac. Ab.
Juries, E 12.
2. Where the challenge is made to the first juror, the court
will appoint two indifferent persons to be triors if they find
him indifferent he shall be sworn, and join the triors in
determining the next challenge. But when two jurors have been
found impartial and have been sworn, then the office of the
triors will cease, and every subsequent challenge will be decided
upon by the jurymen. If more than two, jurymen have been sworn,
the court may assign any two of them to determine the challenges.
To the triors thus chosen no challenges can be admitted.
3. The following oath or affirmation is administered to them:
"You shall well and truly try whether A B, the juror challenged,
stands indifferent between the parties to this issue, so help you
God" or to this you affirm. The trial then proceeds by witnesses
before them; and they may examine, the juryman challenged on his
voire dire, but he cannot be interrogated as to circumstances
which may tend to his own disgrace, discredit, or the injury of
his character. The finding of the triors is final. Being officers
of the court, the triors may be punished for any mishehaviour in
their office. Vide 2 Hale, 275; 4 Bl. Com. by Chitty, 353, n. 8;
Tr. per Pais, 200; 1 Chit. Cr. Law, 549, 450; 4 Harg. St. Tr.
740, 750; 15 Serg. & Rawle, 156; 21 Wend. 509; 2 Green, 195.
TRIPARTITE. Consisting of three parts, as a deed tripartite,
between A of the first part, B of the second part, and C of the
third part.
TRIPLICATION, pleading. This was formerly used in pleading
instead of rebutter. 1 Bro. Civ. Law, 469, n.
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TRITAVUS. The male ascendant in the sixth degree was so calledamong the Romans. For the female ascendant in the same degree,
the term is tritavia. In forming genealogical tables this
convenient term is still used.
TRIUMVIRI CAPITALES or TREVIRI or TRESVIRI, Rom, civ. law.
Officers who had charge of the prison, through whose intervention
punishments were inflicted. Sallust in Catalin. They had eight
lictors to execute their orders. Vicat, ad voc.
TRIVIAL. Of small importance. It is a rule in equity that a
demurrer will lie to a bill on the ground of the triviality of
the matter in dispute, as being below the dignity of the court. 4
Bouv. Inst. n. 4237. See Hopk. R. 112; 4 John. Ch. 183; 4
Paige, 364.
TRONAGE, Engl. law. A customary duty or toll for weighing wool,
so called because it was weighed by a common trona, or beam.
Fleta, lib. 2, c. 12.
TROVER, remedies. Trover signifies finding. The remedy is
called an action of trover; it is brought to recover the value
of personal chattels, wrongfully converted by another to his own
use; the form supposed that the defendant might have acquired
the possession of the property lawfully, namely, by finding, but
if he did not, by bringing the action the plaintiff waives the
trespass; no damages can therefore be recovered for the taking,
all must be for the conversion. 17 Pick. 1; Anthon, 156; 21
Pick. 559; 7 Monr. 209; 1 Metc. 172.
2. It will be proper to consider the subject with reference, 1.
To the thing converted. 2. The plaintiff's right. 3. The nature
of the injury. 4. The pleadings. 5. The verdict and judgment.
3. - 1. The property affected must be some personal chattel;
3, Serg. & Rawle, 513; and it has been decided that trover lies
for title deeds; 2 Yeates, R. 537; and for a copy of a record.
Hardr. 111. Vide 2 T. R. 788; 2 Salk. 654; 2 New Rep. 170; 3
Campb. 417; 3 Johns. R. 432; 10 Johns. R. 172; 12 Johns. R.
484; 6 Mass. R. 394; 17 Serg. & Rawle, 285; 2 Rawle, R. 241.
Trover will be sustained for animals ferae naturae, reclaimed.
Hugh. Ab. Action upon the case of Trover and Conversion, pl. 3.
But trover will not lie for personal property in the custody of
the law, nor when the title to the property can be settled only
by a peculiar jurisdiction; as, for example, property taken on
the high seas, and claimed as lawful prize, because in such case,
the courts of admiralty have exclusive jurisdiction. Cam. & N.
115, 143; but see 14 John. 273. Nor will it lie where the
property bailed has been lost by the bailee, or stolen from him,
or been destroyed by accident or from negligence case is the
proper remedy. 2 Iredell, 98.
4.-2. The plaintiff must at the time of the conversion have had
a property in the chattel either general or special; 1 Yeates,
R. 19; 3 S. & R. 509; 15 John. R. 205, 349; 16 John. R. 159;
1 Humph. R. 199; he must also have had actual possession or
right to immediate possession. The person who has the absolute or
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general property in a personal chattel may support this action,
although he has never had possession, for it is a rule that the
general property of personal chattels creates a constructive
possession. 2 Saund. 47 a, note 1; Bac. Ab. Trover, C; 4 Rawle,
R. 185. One who has a special property, which consists in the
lawful custody of goods with a right of detention against the
general owner, may maintain trover. Story, Bailm. 93 n.
5. - 3. There must have been a conversion, which may have been
effected, 1st. By the wrongful taking of a personal chattel. 2d.
By some other illegal assumption of ownership, or by illegally
using or misusing it; or, 3d. By a wrongful detention., Vide
Conversion.
6. - 4. The declaration should state that the plaintiff Was
possessed of the goods (describing them) as of his own property,
and that they came to the defendant's possession by finding; and
the conversion should be properly averred, as that is the gist of
the action. It is not indispensable to state the price or value
of the thing converted. 2 Wash. 192. See 2 Cowen, 592 13 S. & R.
99; 3 Watts, 333; 1 Blackf. 51; 1 South 211; 2 South. 509.
Vide form, 2 Chitty's Pl. 370, 371. The usual plea is not guilty,
which is the general issue. Bull. N. P. 48.
7. - 5. The verdict should be for the damages sustained, and
the measure of such damages is the value of the property at the
time of the conversion, with interest. 17 Pick. 1; 7 Monr. 209;
1 Mete. 172; 8 Port. R. 191; 2 Hill, 132; 8 Dana, 192. The
judgment, when for the plaintiff, is that he recover his damages
and costs; 1 Chit. Pl. 157; when for the defendant, the
judgment is that he recover his costs. Vide, generally, 1 Chit.
Pl. 147 to 157 Chit. Pr. Index, h. t.; Bac. Ab. h. t.; Dane's
Ab. h. t. Vin. Ab. h. t.; Com. Dig. Action upon the case upon
trover; Id. Pleader, 2 I; Doct. Pl. 494; Amer. Digests, h. t.;
Bouv. Inst. Index, h. t. As to the evidence to be given in
actions of trover, see Rose. Civ. Ev. 395 to 412.
TROY WEIGHT. A weight less ponderous than the avoirdupois
weight, in the proportion of seven thousand, for the latter, to
five thousand seven hundred and sixty, to the former. Dane's Ab.
Index, h. t. Vide Weights.
TRUCE, intern. law. An agreement between belligerent parties,
by which they mutually engage to forbear all acts of hostility
against each other for some time, the war still continuing.
Burlamaqui's N. & P. Law, part 4, c. 11, §1.
2. Truces are of several kinds: general, extending to all the
territories and dominions of both parties; and particular,
restrained to particular places; as, for example, by sea, and
not by land, &c. Id. part 4, c. 11, §5. They are also absolute,
indeterminate and general; or limited and determined to certain
things, for example, to bury the dead. Ib. idem. Vide 1 Kent,
Com. 159; Com. Dig. Admiralty, E 8; Bac. Ab.;Prerogative, D 4;
League; Peace; War.
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TRUE BILL, practice. These words are endorsed on a bill of
indictment, when a grand jury, after having heard the witnesses
for the government, are of opinion that there is sufficient cause
to put the defendant on his trial. Formerly, the endorsement was
Billa vera, when legal proceedings were in Latin; it is still
the practice to write on the back of the bill Ignoramus, when the
jury do not find it to be a true bill. Vide Grand Jury.
TRUST, contracts, devises. An equitable right, title or
interest in property, real or personal, distinct from its legal
ownership; or it is a personal obligation for paying, delivering
or performing anything, where the person trusting has no real.
right or security, for by, that act he confides altogether to the
faithfulness of those intrusted. This is its most general
meaning, and includes deposits, bailments, and the like. In its
more technical sense, it may be defined to be an obligation upon
a person, arising out of a confidence reposed in him, to apply
property faithfully, and according to such confidence. Willis on
Trustees, 1; 4 Kent, Com. 295; 2 Fonb. Eq. 1; 1 Saund. Uses
and Tr. 6; Coop. Eq. Pl. Introd. 27; 3 Bl. Com. 431. 2. Trusts
were probably derived from the civil law. The fidei commissum,
(q. v.) is not dissimilar to a trust. 8. Trusts are either
express or implied. 1st. Express trusts are those which are
created in express terms in the deed, writing or will. The terms
to create an express trust will be sufficient, if it can be
fairly collected upon the face of the instrument that a trust was
intended. Express trusts are usually found in preliminary sealed
agreements, such as marriage articles, or articles for the
purchase of land; in formal conveyances, such as marriage
settlements, terms for years, mortgages, assignments for the
payment of debts, raising portions or other purposes; and in
wills and testaments, when the bequests involve fiduciary
interests for private benefit or public charity,, they may be
created even by parol. 6 Watts & Serg. 97.
4. - 2d. Implied trusts are those which without being
expressed, are deducible from the nature of the transaction, as
matters of intent; or which are superinduced upon the
transaction by operation of law, as matters of equity,
independently of the particular intention of the parties.
5. The most common form of an implied trust is where property
or money is delivered by one person to another, to be by the
latter delivered to a third person. These implied trusts greatly
extend over the business and pursuits of men: a few examples
will be given.
6. When land is purchased by one man in the name of another,
and the former pays the consideration money, the land will in
general be held by the grantee in Trust for the person who so
paid the consideration money. Com. Dig. Chancery, 3 W 3; 2
Fonbl. Eq. book 2, c. 5, §1, note a. Story, Eq. Jur. §1201.
7. When real property is purchased out of partnership funds,
and the title is taken in the name of one of the partners, he
will hold it in trust for all the partners. 7 Ves. jr. 453;
Montague on Partn. 97, n.; Colly. Partn. 68.
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8. When a contract is made for the sale of land, in equity the
vendor is immediately deemed a trustee for the vendee of the
estate; and the vendee, a trustee for the vendor of the purchase
money; and by this means there is an equitable conversion of the
property. 1 Fonbl. Eq. book 1, ch. 6, §9, note t; Story, Eq.
Jur. SSSS 789, 790, 1212. See Conversion. For the origin of
trusts in the civil law, see 5 Toull. Dr. Civ. Fr. liv. 3, t. 2,
c. 1, n. 18; 1 Brown's Civ. Law, 190. Vide Resulting Trusts.
See, generally, Bouv. Inst. Index, h. t.
TRUSTEE, estates. A trustee is one to whom an estate has been
conveyed in trust.
2. The trust estate is not subject to the specialty or judgment
debts of the trustee, to the dower of his wife, or the curtesy of
the hushand of a female trustee.
3. With respect to the duties of trustees, it is held, in
conformity to the old law of uses, that pernancy of the profits,
execution of estates, and defence of the land, are the three
great properties of a trust, so that the courts of chancery will
compel trustees, 1. To permit the cestui que trust to receive the
rents and profits of the land. 2. To execute such conveyances, in
accordance with the provisions of the trust, as the cestui que
trust shall direct. 3. To defend the title of the land in any
court of law or equity. Cruise, Dig. tit. 12, c. 4, s. 4.
4. It has been judiciously remarked by Mr. Justice Story, 2 Eq.
Jur. §1267, that in a great variety of cases, it is not easy to
say what the duty of a trustee is; and that therefore, it often
becomes indispensable for him, before he acts, to seek, the aid
and direction of a court of equity. Fonbl. Eq. book 2, c. 7, §2,
and note c. Vide Vin. Ab. tit. Trusts, O, P, Q, R, S, T; Bouv.
Inst. Index, h. t.
TRUSTEE PROCESS, practice. In Massacchusetts, this is a process
given by statute, in imitation of the foreign attachment of the
English law.
2. By this process, a creditor may attach any property or
credits of his debtor in the hands of a third person. This third
person is, in the English law, called the garnishee; in
Massachusetts, he is the trustee. White's Dig. tit. 148. Vide
Attachment.
TRUSTER. He who creates a trust. A convenient term used in the
laws of Scotland. 1 Bell's Com. 321, 6th ed.
TRUTH. The actual state of things.
2. In contracts, the parties are bound to tell the truth in
their dealings, and a deviation from it will generally avoid the
contract; Newl. on Contr. 352-3; 2 Burr. 1011; 3 Campb. 285;
and even concealment, or suppressio veri, will be considered
fraudulent in the contract of insurance. 1 Marsh. on Ins. 464;
Peake's N. P. C. 115; 3 Campb. 154, 506.
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3. In giving his testimony, a witness is required to tell the
truth, the whole truth, and nothing but the truth; for the
object in the examination of matters of fact, is to ascertain
truth.
4. When a defendant is sued civilly for slander or a libel, he
may justify by giving the truth in evidence; but when a criminal
prosecution is instituted by the commonwealth for a libel, he
cannot generally justify by giving the truth in evidence.
5. The constitutions of several of the United States have made
special provisions in favor of giving the truth in evidence in
prosecutions for libels, under particular circumstances. In the
constitutions of Pennsylvania, Delaware, Tennessee, Kentucky,
Ohio, Indiana and Illinois, it is declared, that in publications
for libels on men in respect to their public official conduct,
the truth may be given in evidence, when the matter published was
proper for public information. The constitution of New York
declares, that in all prosecutions or indictments 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. By constitutional provision in
Mississippi and Missouri, and by legislative enactment in New
Jersey, Arkansas, Tennessee, Act of 1805, c. 6: and Vermont,
Rev. Stat. tit. 11, c. 25, s. 68; the right to give the truth
in evidence has been more extended; it applies to all
prosecutions or indictments for libels, without any
qualifications annexed in restraint of the privilege. Cooke on
Def. 61.
TUB, measures. In mercantile law, a tub is a measure containing
sixty pounds weight of tea; and from fifty-six to eighty-six
pounds of camphor. Jacob's Law Dict. h. t.
TUB-MAN, Eng. law. A barrister who has a pre-audience in the
Exchequer, and also one who has a particular place in court, is
so called.
TUMBREL, punishment. A species of cart; according to Lord
Coke, a dung-cart.
2. This instrument, like the pillory, was used as a means of
exposure; and according to some authorities, it seems to have
been synonymous with the trebucket or ducking stool. 1 Chit. Cr.
Law, 797; 3 Inst. 219; 12 Serg. & Rawle, 220. Vide Com. Dig. h.
t.; Burn's Just. Pillory and Tumbrel.
TUN, measure. A vessel of wine or oil, containing four
hogsheads.
TURBARY, Eng. law. A right to dig turf; an easement.
TURNKEY. A person under the superintendence of a jailor, whose
employment is to open and fasten the prison doors and to prevent
the prisoners from escaping.
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2. It is his duty to use due diligence, and he may be punished
for gross neglect or wilful misconduct in permitting prisoners to
escape.
TURNPIKE. A public road paved with stones or other hard
substance.
2. Turnpike roads are usually made by corporations to which a
power to make them has been granted. The grant of such power
passes not only an easement for the road itself, but also so much
land as is connected with it; as, for instance, for a toll house
and a cellar under it, and a well for the use of the family. 9
Pick. R. 109. A turnpike is a public highway, and a building
erected before the turnpike was made, though upon a part out of
the travelled path, if continued there is a nuisance. 16 Pick. R.
175. Vide Road; Street; Way.
TURPIS CAUSA, contracts. A base or vile consideration,
forbidden by law, which makes the contract void; as a contract,
the consideration of which is the future illegal cohabitation of
the obligee with the obligor.
TURPITUDE. Everything done contrary to justice, honesty,
modesty or good morals, is said to be done with turpitude.
TUTELAGE. State of guardianship; the condition of one who is
subject to the control of a guardian.
TUTOR, civil law. A person who has been lawfully appointed to
the care of the person and property of a minor.
2. By the laws of Louisiana minors under the age of fourteen
years, if males, and under the age of twelve years, if females,
are both, as to their persons and their estates, placed under the
authority of a tutor. Civ. Code, art. 263. Above that age, and
until their, majority or emancipation, they are placed under the
authority of a curator. Ibid.
TUTOR ALIENUS, Eng. law. The name given to a stranger who
enters into the lands of an infant within the age of fourteen),
and takes the profits.
2. He may be called to an account by the infant, and be charged
as guardian in socage. Litt. s. 124; Co. Litt. 89 b, 90 a Hargr.
n. 1.
TUTOR PROPRTUS. The name given to one who is rightly a guardian
in socage in contradistinction, to a tutor alienus. (q. v.)
TUTORSHIP. The power which an individual, sui juris, has to take
care of the person of one who is unable to take care of himself.
Tutorship differs from curatorship, (q. v.) Vide Pro-curator;
Pro-tutor; Undertutor.
TUTRIX. A woman who is appointed to the office of a tutor.
TWELVE TABLES. The name given to a code of Roman laws, commonly
called the Law of the Twelve Tables. (q. v.)
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TWENTY YEARS. The lapse of twenty years raises a presumption of
certain facts, and after such a time, the party against whom the
presumption has been raised, will be required to prove a negative
to establish his rights.
2. After twenty years from the time it became due, a bond will
be presumed to have been paid. 2 Cranch, 180; 3 Day, 289; 1
McCord, 145; 2 N. & McC. 160; 1 Bay. 482; 9 Watts, 441; 2
Speers, 357. And the same presumption arises that a judgment has
been paid, if no steps have been taken by the plaintiff for
twenty years after its rendition. 3 Brev. 476; 5 Conn. 1.
3. But the presumption of such payment is easily rebutted, by
showing that interest has been regularly paid. 1 Bailey, 148;
that the obliger has admitted it has not been paid 2 Harring,
124; 9 N. H. Rep. 398; or other circumstances calculated to
rebut the presumption. The proof of facts which show that the
obligor was poor and not likely to be able to pay the debt, is
not sufficient. 5 Verm. 236.
4. When a debt is payable in instalments and secured by a penal
bond, the presumption of payment arising from lapse of time
applies to each instalment as it falls due. 3 Harring. 421.
5. By the English act of limitation, 21 Jac. 1, c. 16, the
period during which a possessory action for land can be sustained
is fixed at twenty years, so that an adverse possession of twenty
years is a bar to an action of ejectment, and such lapse of time
gives a possessory title to the land. This period has been
adopted in many of the states of the Union, but there has been
some variation in others. See Limitation of actions.
6. But this statute did not affect incorporeal hereditaments,
which remained as before. In analogy to the act of limitation the
courts presumed a grant after twenty years adverse possession.
Ana new grants are presumed upon proof of an adverse, exclusive,
and uninterrupted enjoyment of an incorporeal hereditament at the
end of twenty years. And the burden of proving that the
possession was adverse, that is, under a claim of title, with the
knowledge or acquiescence of the owner of the land; and also
that it was uninterrupted, rests on the party claiming such
incorporeal hereditaments. 3 Kent, 441; 1 Cheves, R. 2; 4
Mason, 402; 2 Roll. Ab. 269; 2 Greenl. Ev. 444.
7. The time of enjoyment of a former owner who is in privity
with the claimant, can, in general, be joined to his own in order
to make up the period of twentv years, as in the case of the heir
and ancestor, of grantor and grantee. 9 Pick. 251. But the
enjoyment of a former owner whose title has escheated to the
state by forfeiture, cannot be added to the time of the enjoyment
of the grantee of the state. 2 Greenl. Ev. 543.
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TYBURN TICKET, Eng. late. A certificate given to the prosecutor
of a felon to conviction, is so called.
2. By the 10 & 11. W. III., c. 23, the original proprietor or
first assignee of such certificate is exempted from all and all
manner of parish and ward offices within the parish or ward where
the felony shall have been committed. Bac. Ab. Constable, C.
TYRANNY, government. The violation of those laws which regulate
the division and the exercises of the sovereign power of the
state. It is a violation of -its constitution.
TYRANT, government. The chief magistrate of the state, whether
legitimate or otherwise, who violates the constitution to act
arbitrarily contrary to justice. Toull. tit. prel. n. 32.
2. The term tyrant and usurper, are sometimes used as
synonymous, because usurpers are almost always tyrants;
usurpation is itself a tyrannical act, but properly speaking, the
words usurper and tyrant convey different ideas. A king may
become a tyrant, although legitimate, when he acts despotically;
while a usurper may cease to be a tyrant by governing according
to the dictates of justice.
3. This term is sometimes applied to persons in authority who
violate the laws and act arbitrarily towards others. Vide
Despotism.
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