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;

   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

   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

   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

   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

   TENANCY or  TENANTCY. The state or condition of a tenant;  the
estate held  by a  tenant, as  a tenant  at will,  a tenancy  for

   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.

   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,

   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

   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

   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.

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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.

   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

   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

   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

  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.

         Bouvier's Law Dictionary : T1 : Page 17 of 68

  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

   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."

         Bouvier's Law Dictionary : T1 : Page 18 of 68

     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

   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.

         Bouvier's Law Dictionary : T1 : Page 19 of 68

   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

         Bouvier's Law Dictionary : T1 : Page 20 of 68

   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.

   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.

         Bouvier's Law Dictionary : T1 : Page 21 of 68

   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;

  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.

         Bouvier's Law Dictionary : T1 : Page 22 of 68

   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

  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.

         Bouvier's Law Dictionary : T1 : Page 23 of 68

   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

   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

   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

   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

   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

  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

   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.

         Bouvier's Law Dictionary : T1 : Page 34 of 68

   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,

   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.

         Bouvier's Law Dictionary : T1 : Page 35 of 68

  13.  §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.

         Bouvier's Law Dictionary : T1 : Page 36 of 68

   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

   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

   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

  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

  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

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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

  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

  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

  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

   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.

         Bouvier's Law Dictionary : T1 : Page 42 of 68

   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

   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

         Bouvier's Law Dictionary : T1 : Page 43 of 68

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

   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.

         Bouvier's Law Dictionary : T1 : Page 44 of 68

   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

   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

   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

   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

   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,

   4. It  has been  determined that  a copyright  may exist  in a
translation, as a literary work. 3 Ves. & Bea. 77;  2 Meriv. 441,

   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

   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.

   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

   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

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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.

   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.

   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.

   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

   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

  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.

   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.

   TRIAL LIST.  A list of cases marked down for trial for any one

   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

   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.

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

   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

   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

   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

  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

   TURNPIKE. A  public road  paved  with  stones  or  other  hard

   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

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