WADSET, Scotch law. A right, by which lands, or other heritable
subjects, are  impignorated by  the proprietor to his creditor in
security of  his debt;   and,  like other  heritable  rights,  is
perfected by seisin.

   2. Wadsets,  by the present practice, are commonly made out in
the form  of mutual contracts, in which one party sells the land,
and the other grants, the right of reversion. Ersk. Pr. L. Scot.,
B. 2, t. 8, s. 1, 2.

  3. Wadsets are proper or improper. Proper, where the use of the
land shall  go for  the use  of the  money. Improper,  where  the
reverser agrees  to make up the deficiency;  and where it amounts
to more,  the surplus  profit of  the  land  is  applied  to  the
extinction of the principal. Id. B. 2, t. 8, s. 12, 13.

  WADSETTER, Scotch law. A creditor to whom a wadset is made.

   TO WAGE,  contracts. To  give a  pledge or  security  for  the
performance of  anything;   as to  wage or  gage deliverance;  to
wage law, &c. Co. Litt. 294. This word is but little used.

   WAGER OF  BATTEL. A  superstitious mode  of trial  which  till
lately disgraced the English law.

   2. The  last case of this kind was commenced in the year 1817,
but not procceded in to judgment;  and at the next session of the
British parliament  an act  was  passed  to  abolish  appeals  of
murder, treason,  felony or  other offences, and wager of battel,
or joining  issue or  trial by  battel in writs of right. 59 Geo.
III. c.  46. For  the history of this species of trial the reader
is referred  to 4  Bl. Com.  347;  3 Bl. Com. 337;  Encyclopedie,
Gage de Bataille;  Steph. Pl. 122, and App. note 35.

   WAGER OF  LAW, Engl.  law. When  an action  of debt is brought
against a  man upon  a simple  contract, and the defendant pleads
nil debit, and concludes his plea with this formula, "And this he
is ready  to defend against him the said A B and his suit, as the
court of  our lord the king here shall consider," &c., he is said
to wage  his law.  He is  then required  to  swear  he  owes  the
plaintiff nothing,  and bring  eleven compurgators who will swear
they believe him. This mode of trial, is trial by wager of law.

   2. The  wager of  law could  only be had in actions of debt on
simple contract,  and actions of detinue;  in consequence of this
right of  the defendant,  now actions  on  simple  contracts  are
brought in assumpsit, and instead of bridging detinue, trover has
been substituted.

  3. If ever wager of law had any existence in the United States,
it is  now completely  abolished. 8  Wheat. 642.  Vide Steph.  on
Plead. 124,  250, and  notes, xxxix.;  Co. Entr. 119;  Mod. Entr.
179;   Lilly's Entr.  467;   3 Ch  it. Pl.  497;  13 Vin. Ab. 58;
Bac. Ab.  h. t.;   Dane's Ab. Index, h. t. For the origin of this
form of  trial, vide Steph. on Pl. notes xxxix;  Co. Litt. 294, 5
3 Bl. Com. 341.

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   WAGER POLICY,  contracts. One  made when  the insured  has  no
insurable interest.

   2. It  has nothing  in common  with insurance but the name and
form. It is usually in such terms as to preclude the necessity of
inquiring into  the interest of the insured;  as, "interest or no
interest," or,  "without  further  proof  of  interest  than  the

  3. Such contracts being against the policy of the law are void.
1 Marsh.  Ins. 121  Park on  Ins. Ind.  h. t.;  Wesk. Ins. h. t.;
See 1 Sumn. 451;  2 Mass. 1 3 Caines, 141.

   WAGERS. A  wager is  a bet  a contract by which two parties or
more agree  that a certain sum of money, or other thing, shall be
paid or  delivered to  one of  them,  on  the  happening  or  not
happening of an uncertain event.

   2. The  law does  not prohibit all wagers. 1 Browne's Rep. 171
Poth. du Jeu, n. 4.

   3. To  restrain  wagers  within  the  bounds  of  justice  the
following conditions  must be  observed: 1.  Each of  the parties
must have  the right  to dispose of the thing which is the object
of the wager. 2. Each must give a perfect and full consent to the
contract, 3. There must he equality between the parties. 4. There
must be  good faith  between them.  5.  The  wager  must  not  be
forbidden by  law. Poth.  du 4. In general, it seems that a wager
is legal  and maybe enforced in a court of law 3 T. R. 693, if it
be not,  1st, Contrary to public policy, or immoral;  or if it do
not in  some other  respect tend  to the detriment of the public.
2d. If it do not affect the interest, feelings, or character of a
third person.

  5. - 1. Wagers on the event of an election laid before the poll
is open;   1  T. R.  56. 4  Johns. 426;   4 Harr. & McH. 284;  or
after it  is closed;   8  Johns. 454,  147;  2 Browne's Rep. 182;
are unlawful. And wagers are against public policy if they are in
restraint of  marriage;   10 East, R. 22;  made as to the mode of
playing an  illegal game;  2 H. Bl. 43;  1 Nott & McCord, 180;  7
Taunt. 246;   or  on an  abstract speculative  question of law or
judicial practice,  not arising out of circumstances in which the
parties have  a real  interest. 12 East, R. 247, and Day's notes,
sed vide Cowp. 37.

   6. -  2. Wagers  as to the sex of an individual Cowp. 729;  or
whether an  unmarried woman  had borne  or would have a child;  4
Campb. 152, are illegal;  as unnecessarily leading to painful and
indecent considerations.  The supreme  court of Pennsylvania have
laid it  down as a rule, that every bet about the age, or height,
or weight,  or wealth,  or circumstances,  or  situation  of  any
person, is  illegal;   and this whether the subject of the bet be
man, woman,  or child, married or single, native or foreigner, in
this country  or abroad.  1 Rawle,  42. And it seems that a wager
between two coach-proprietors, whether or not a particular person
would go  by one  of their  coaches is  illegal, as exposing that
person to inconvenience. 1 B. & A. 683.

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   7. In  the case  even of  a legal  wager, the  authority of  a
stakeholder, like  that of  an arbitrator,  may be  rescinded  by
either party before the event happens. And if after his authority
has been  countermanded, and  the stake  has  been  demanded,  he
refuse to  deliver it,  trover or  assumpsit for  money  had  and
received is  maintainable. 1  B. & A. 683. And where the wager is
in its nature illegal, the stake may be recovered, even after the
event, on demand made before it has been paid over. 4 Taunt. 474;
5 T.  R. 405;  sed vide 12 Johns. 1. See further on this subject,
7 Johns.  434;  11 Johns. 23;  10 Johns. 406,468;  12 Johns. 376;
17 Johns.  192;   15 Johns. 5;  13 Johns. 88;  Mann. Dig. Gaming;
Harr. Dig. Gaining;  Stakeholder.

  WAGES, contract. A compensation given to a hired person for his
or her  services. As to servants wages, see Chitty, Contr. 171 as
to sailors' wages, Abbott on Shipp. 473;  generally, see 22. Vin.
Abr. 406;   Bac.  Abr. Master,  &c., H;  Marsh. Ins. 89;  2 Lill.
Abr. 677;  Peters' Dig. Admiralty, pl. 231, et seq.

   WAIFS. Stolen  goods waived  or scattered  by a  thief in  his
flight in order to effect his escape.

   2. Such  goods by the English common law belong to the king. 1
Bl. Com.  296;   5 Co. 109;  Cro. Eliz. 694. This prerogative has
never been  adopted here against the true owner, and never put in
practice against  the finder,  though against  him there would be
better reason  for adopting  it. 2 Kent, Com. 292. Vide Com. Dig.
h. t.;  1 Bro. Civ. Law, 239, n.

  WAIVE. A term applied to a woman as outlaw is applied to a man.
A man  is an  outlaw, a  woman is  a waive.  T. L., Crabb's Tech.
Dict. h. t.

  To WAIVE. To abandon or forsake a right.

   2. To  waive signifies  also to abandon without right;  as "if
the felon  waives, that  is, leaves  any goods in his flight from
those who  either pursue him, or are apprehended by him so to do,
he forfeits  them, whether they be his own goods, or goods stolen
by him." Bac. Ab . Forfeiture, B.

  WAIVER., The relinquishment or refusal to accept of a right.

  2. In practice it is required of every one to take advantage of
his rights  at a  proper time  and, neglecting  to do so, will be
considered as a waiver. If, for example, a defendant who has been
misnamed in  the writ  and declaration,  pleads over,  he  cannot
afterwards take  advantage of the error by pleading in abatement,
for his plea amounts to a waiver.

   3. In  seeking for  a remedy  the party  injured may,  in some
instances, waive  a part  of his right, and sue for another;  for
example, when  the defendant  has committed  a  trespass  on  the
property of  the plaintiff,  by taking it away, and afterwards he
sells it,  the injured party may waive the trespass, and bring an
action of  assumpsit for  the recovery of the money thus received
by the defendant. 1 Chit. Pl. 90.

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   4. In  contracts, if,  after knowledge  of a  supposed  fraud,
surprise or  mistake, a  party performs the agreement in part, he
will be  considered as  having waived the objection. 1 Bro. Parl.
Cas. 289.

   5. It  is a rule of the civil law, consonant with reason, that
any one  may renounce or waive that which has been established in
his favor:  Regula est  juris antique  omnes licentiam habere his
quae pro  se introducta  sunt, renunciare.  Code 2,  3, 29. As to
what will  amount to a waiver of a forfeiture, see 1 Conn. R. 79;
7 Conn.  R. 45;   1  Jo Cas. 125;  8 Pick. 292;  2 N. H, Rep. 120
163;  14 Wend. 419;  1 Ham. R. 21. Vide Verdict.

  WAKENING, Scotch law. The revival of an action.

   2. An action is said to sleep, when it lies over, not insisted
on for a year in which case it is suspended. 4, t. 1, n. 33. With
us a revival is by scire facias. (q. v.)

   WALL. A  building or  erection so  well known  as to  need  no
definition. In  general a man may build a wall on any part of his
estate, to any height he may deem proper, and in such form as may
best accommodate  him;  but he must take care not to erect a wall
contrary to  the local regulations, nor in such a manner as to be
injurious to  his neighbors.  See Dig.  50, 16,  157. Vide  Party

   WANTONNESS, crim. law. A licentious act by one man towards the
person of another without regard to his rights;  as, for example,
if a  man should  attempt to  pull off  another's hat against his
will in  order to expose him to ridicule, the offence would be an
assault, and  if he touched him it would amount to a battery. (q.

  2. In such case there would be no malice, but the wantonness of
the act would render the offending party liable to punishment.

   WAPENTAKE. An  ancient word used in England as synonymous with
hundred. (q. v.) Fortesc. De Laud. ch. 24.

   WAR. A  contention by  force;   or the  art of  paralysing the
forces of an enemy.

   2. It  is either public or private. It is not intended here to
speak of the latter.

   3. Public  war is  either civil or national. Civil war is that
which is  waged between  two parties,  citizens or members of the
same state  or nation.  National war  is a contest between two or
more independent  nations) carried  on  by  au-thority  of  their
respective governments.

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   4. War  is not  only an  act, but  a state  or condition,  for
nations are  said to  be at  war not  only when  their armies are
engaged, so  as to  be in  the very  act of  contention, but also
when, they  have any  matter of controversy or dispute subsisting
between them  which they  are determined  to decide by the use of
force, and  have declared  publicly,  or  by  their  acts,  their
determination so to decide it.

   5. National wars are said to be offensive or defensive. War is
offensive on  the part of that government which commits the first
act of  violence;  it is defensive on the part of that government
which receives such act;  but it is very difficult to say what is
the first  act of  violence. If a nation sees itself menaced with
an attack, its first act of violence to prevent such attack, will
be considered as defensive.

   6. To legalize a war it must be declared by that branch of the
government entrusted  by the  constitution with  this power. Bro.
tit., Denizen,  pl. 20.  And it  seems it need not be declared by
both the  belligerent powers.  Rob. Rep. 232. By the constitution
of the  United States,  art. 1,  s. 7, congress are invested with
power "to  declare war, grant letters of marque and reprisal, and
make rules  concerning captures on land and water;  and they have
also the  power to  raise and  support armies, and to provide and
maintain a navy." See 8 Cranch, R. 110, 154;  1 Mason, R. 79, 81;
4 Binn.  R 487.  Vide, generally, Grot. B, 1, c. 1, s. 1 Rutherf.
Inst. B.  1, c. 19;  Bynkershoeck, Quest. Jur. Pub. lib. 1, c. 1;
Lee on  Capt. c.  1;  Chit. Law of Nat. 28;  Marten's Law of Nat.
B. 8,  c. 2;   Phil.  Ev. Index,  h., t. Dane's Ab. Index, h. i.;
Com. Dig.  h. t.  Bac. Ab.  Prerogative, D  4;  Merl. Repert. mot
Guerre;   1 Inst.  249;  Vattel, liv. 3, c. 1, §1;  Mann. Com. B.
3, c. 1.

   WARD, domestic relations. An infant placed by authority of law
under the care of a guardian.

   2. While  under the  care of  a guardian  a ward  can make  no
contract whatever  binding upon him, except for necessaries. When
the relation  of guardian and ward ceases, the latter is entitled
to have  an account  of the administration of his estate from the
former. During  the existence of this relation, the ward is under
the subjection of his guardian, who stands in locoparentis.

   WARD, a district. Most cities are divided for various purposes
into districts, each of which is called a ward.

   WARD, police.  To watch  in the  day time,  for the purpose of
preventing violations of the law.

  2. It is the duty of all police officers and constables to keep
ward in their respective districts.

  WARD IN CHANCERY. An infant who is under the superintendence of
the chancellor.

   WARDEN. A  guardian;   a keeper.  This is  the name  given  to
various officers:  as, the  warden of the prison;  the wardens of
the port of Philadelphia;  church wardens.

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  WARDSHIP, Eng. law. Wardship was the right of the lord over the
person and  estate of  the tenant,  when the  latter was  under a
certain age. When a tenant by knight's service died, and his heir
was under age, the lord was entitled to the custody of the person
and the  lands of  the heir, without any account, until the ward,
if a  male, should arrive at the age of twenty-one years, and, if
a female,  at eighteen. Wardship was also incident to a tenure in
socage, but  in this case, not the lord, but the nearest relation
to whom  the inheritance  could not  descend, was entitled to the
custody of the person and estate of the heir till he attained the
age of  fourteen years;   at which period the wardship ceased and
the guardian  was bound, to account. Wardship in copyhold estates
partook of that in chivalry and that guardian like the latter, he
was required lib. 7, c. 9;  Grand Cout. c. 33;  Reg. Maj. c. 42.

   WAREHOUSE. A  place adapted  to the  reception and  storage of
goods and merchandise. 9 Shepl. 47.

   2. The act of congress of February 25, 1799, 1 Story's Laws U.
S. 565,  authorizes the  purchase of  suitable warehouses,  where
goods may be unladen and deposited from any vessel which shall be
subject to quarantine or other re-straint, pursuant to the health
laws of  any state,  at such  convenient place  or places  as the
safety of  the revenue and the observance of such health laws may

   3. And  the act of 2d March, 1799, s. 62, 1 Story's Laws U. S.
627, authorizes  an importer  of goods,  instead of, securing the
duties to  be paid  to the  United States,  to deposit so much of
such goods  as the  collector may in his judgment deem sufficient
security for  the duties  and the  charges of  safe keeping,  for
which the importer shall give his own bond;  which goods shall be
kept by  the collector  with due care, at the expense and risk of
the party  on whose  account they  have been deposited, until the
sum specified, in such bond becomes due;  when, if such sum shall
not be  paid, so  much of  such deposited  goods shall be sold at
public sale,  and the  proceeds, charges of safe keeping and sale
being deducted,  shall be  applied to  the payment  of such  sum,
rendering  the   overplus,  and  the  residue  of  the  goods  so
deposited,  if   there  be   any,  to   the  depositor   or   his

  WAREHOUSEMAN. A warehouseman is a person who receives goods and
merchandise to be stored in his warehouse for hire.

   2. He  is bound  to use ordinary care in preserving such goods
and merchan-dise, and his neglect to do so will render him liable
to the owner. Peake, R. 114;  1 Esp. R. 315;  Story, Bailm. §444;
Jones' Bailm.  49, 96, 97;  7 Cowen's R. 497;  12 John. Rep. 232;
2 Wend.  R. 593;   9  Wend. R.  268;    1  Stew.  Rep.  284.  The
warehouseman's liability  commences as  soon as the goods arrive,
and the  crane of the warehouse is applied to raise them into the
warehouse. 4 Esp. R. 262.

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   WARRANDICE, Scotch  law. A  clause in  a charter  of heritable
rights by  which the  grantor obliges  himself,  that  the  right
conveyed shall  be  effectual  to  the  receiver.  It  is  either
personal or real. A warranty. Ersk. Pr. B. 2, t. 3, n. 11.

  WARRANT, crim. law, Practice. A writ issued by a justice of the
peace or  other authorized  officer, directed  to a  constable or
other proper  person, requiring  him to  arrest a  person therein
named, charged  with committing  some offence,  and to  bring him
before that or some other justice of the peace.

   2. It  should regularly be made under the hand and seal of the
justice and  dated. No warrant ought to be issued except upon the
oath or affirmation of a witness charging the defendant with, the
offence. 3 Binn. Rep. 88.

   3. The  reprehensible practice of issuing blank warrants which
once prevailed in England, was never adopted here. 2 Russ. on Cr.
512;   Ld. Raym.  546;   1 Salk. 175;  1 H. Bl. R. 13;  Doct. Pl.
529;   Wood's Inst. 84;  Com. Dig. Forcible Entry, D 18, 19;  Id.
Imprisonment, H  6,;   Id. Pleader, 3 K 26;  Id. Pleader, 3 M 23.
Vide Search warrant.

   4. A bench warrant is a process granted by a court authorizing
a proper officer to apprehend and bring before it some on charged
with some contempt, crime or misdemeanor. See Bench warrant.

  5. A search warrant is a process issued by a competent court or
officer authorizing  an officer  therein named  or described,  to
examine a  house or  other place for the purpose of finding goods
which it is alleged have been stolen. See Search warrant.

   WARRANT OF  ATTORNEY,  practice.  An  instrument  in  writing,
addressed to  one or  more attorneys  therein named,  authorizing
them generally  to appear  in any  court, or  in  some  specified
court, on behalf of the person giving it, and to confess judgment
in favor of some particular person therein named, in an action of
debt, and  usually containing a stipulation not to bring any writ
of error, or file a bill in equity, so as to delay him.

   2. This  general authority  is usually qualified by reciting a
bond which  commonly accompanies  it, together with the condition
annexed to  it, or by a written defeasance stating the terms upon
which it  was given,  and restraining  the creditor  from  making
immediate use of it. 31. In form it is generally by deed;  but it
seems, it need not necessarily be so. 5 Taunt. 264.

   4. This  instrument is  given to  the creditor  as a security.
Possessing it,  he may  sign judgment  and  issue  an  execution,
without its  being necessary  to  wait  the  termination.  of  an
action. Vide  14 East, R. 576;  2 T. R. 100;  1 H. Bl. 75;  1 Str
20;  2 Bl. Rep. 1133;  2 Wils. 3;  1 Chit. Rep. 707.

   5. A  warrant of  attorney given  to confess a judgment is not
revocable, and,  notwithstanding a  revocation, judgment  may  be
entered upon  it. 2  Ld. Raym. 766, 850;  1 Salk. 87;  7 Mod. 93;
2 Esp,  Rep. 563.  The death of the debtor is, however, generally
speaking, a revocation. Co. Litt. 62 b;  1 Vent. 310. Vide Hall's
Pr. 14, n.

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  6. The virtue of a warrant of attorney is spent by the entry of
one judgment,  and a  second judgment entered on the same warrant
is irregular.  1 Penna.  R. 245;   6 S. & R. 296: 14 S. & R. 170;
Addis. R.  267;   2 Browne's  R. 321, 3 Wash. C. C. R. 558. Vide,
generally, 18  Eng. Com. Law Rep. 94, 96, 179, 209;  1 Salk. 402;
3 Vin.  Ab. 291;   1 Sell. Pr. 374;  Com. Dig. Abatement, E 1, 2;
Id. Attorney, B 7, 8;  2 Archbold's Pr. 12;  Bingh. on Judgments,
38;   Grah. Pr.  618;   l Crompt. Pr. 316;  1 Troub. & Haly's Pr.

  7. A warrant of attorney differs from a cognovit, actionem. (q.
v.) See Metc. & Perk. Dig. Bond, IV.

   WARRANTEE. One to whom a warranty is made. Touchst. 181.

   WARRANTIA CHARTAE. An ancient and now obsolete writ, which was
issued when  a man  was enfeoffed of land with warranty, and then
he was  sued or  impleaded in assize or other action, in which he
could not vouch or call to warranty.

  2. It was brought by the feoffor pending the first suit against
him, and  had this valuable incident, that when the warrantor was
vouched, and  judgment passed  against  the  tenant,  the  latter
obtained  judgment   simultaneously  against  the  warrantor,  to
recover other  lands of equal value. Termes de la Ley, h. t.;  F.
N. B.  134;   Dane's Ab.  Index, h.  t.;  Rand. 141, 148, 156;  4
Leigh's R.  132;   11 S.  & R.  115 Vin. Ab. h. t. Co. Litt. 100;
Hob. 22, 217.

  WARRANTOR. One who makes a warranty. Touchst, 181.

   WARRANTY, contracts.  This word has several significations, as
it is applied to the conveyance and sale of lands, to the sale of
goods, and to the contract of insurance.

  2. - 1. The ancient law relating to warranties of land was full
of subtleties  and intricacies;  it occupied the attention of the
most eminent  writers on  the English law, and it was declared by
Lord Coke,  that the  learning of  warranties was one of the most
curious and  cunning learnings  of the  law;   but it  is now  of
little use  even in  England. The  warranty was  a covenant real,
whereby the grantor of an estate of freehold, and his heirs, were
bound to warrant the title;  and either upon voucher, or judgment
in, a  writ of  warrantia chartae,  to yield  other lands  to the
value of those from which there had been an eviction by paramount
title Co. Litt. 365;  Touchst.;  181 Bac. Ab. h. t.;  the heir of
the warrantor was bound only on condition that he had, as assets,
other lands of equal value by descent.

  3. Warranties were lineal and collateral.

   4. Lineal,  when the heir derived title to the land warranted,
either from or through the ancestor who made the warranty.

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   5. Collateral  warranty was  when the  heir's  title  was  not
derived from  the warranting ancestor, and yet it barred the heir
from  claiming  the  land  by  any  collateral  title,  upon  the
presumption that  he might thereafter have assets by descent from
or through  the ancestor;  and it imposed upon him the obligation
of giving  the  warrantee  other  lands,  in  case  of  eviction,
provided he had assets. 2 Bl. Com. 301, 302.

   6. The  statute of  4 Anne,  c. 16,  annulled these collateral
warrantees, which  bid become  a great grievance. Warranty in its
original form, it is presumed, has never been known in the United
States. The  more plain  and pliable  form of a covenant has been
adopted in its place and this covenant, like all other covenants,
has always been held to sound in damages which after judgment may
be recovered  out of  the personal  or real  estate, as  in other
cases. Vide 4 Kent, Com. 457;  3 Rawle's R. 67, n.;  2 Wheat-. R.
45;   9 Serg. & Rawle, 268;  11 Serg. & Rawle, 109;  4 Dall. Rep.
442;  2 Saund. 38, n. 5.

   7. -  2. Warranties  in relation,  to  the  sale  of  personal
chattels are of two kinds, express or implied.

   8. An express warranty is one by which the warrantor covenants
or undertakes  to insure  that the  thing which is the subject of
the. contract, is or is not as there mentioned;  as, that a horse
is sound;  that he is not five years old.

   9. An implied warranty is one which, not being expressly made,
the law implies by the fact of the sale;  for example, the seller
is, understood  to warrant the title of goods be sells, when they
are in his possession at the time of the sale;  Ld. Raym. 593;  1
Salk.. 210;  but if they are not then in his possession, the rule
of caveat  emptor applies,  and the  buyer purchases at his risk.
Cro. Jac. 197.

   10. In  general there is no implied warranty of the quality of
the goods  sold. 2  Kent, Com.  374;   Co. Litt. 102, a;  2 Black
Comm. 452;   Bac.  Abr. Action on the case E;  2 Com. Contr. 263;
Dougl. 20;   2  East, 31 4;  Id. 448, n.;  Ross on Vend. c. 6;  1
Johns. R.  274;   4 Conn.  R. 428;  1 Dall. Rep. 91;  10 Mass. R.
197;   20 Johns.  Rep., 196;  3 Yeates, R. 262;  1 Pet. Rep. 317;
12 Serg.  & Rawle,  181;  1 Hard. Kent. Rep. 531;  1 Murphy, Rep.
138;   2 Id.  245;  4 Haywood's Term. R. 227;  2 Caines' Rep. 48.
The rule  of the  civil law  was, that  a fair  price  implied  a
warranty of  title;   Dig. 21, 2, 1;  this rule, has been adopted
in Louisiana;   Code, art. .247 7;  and in South Carolina. 1 Bay,
R. 324;   2  Bay, R.  380 1 Const. R. 182;  2 Const. R. 353. Vide
Harr. Dig. Sale, II. 8;  12 East, R. 452.

   11. -  3. In  the contract  of insurance,  there  are  certain
warranties which are inducements to the insurer to enter into it.
A warranty of this kind is a stipulation or agreement on the part
of the insured, in the nature of a condition precedent. It may be
affirmative;   as where  the insured  undertakes for the truth of
some positive  allegation: as,  that the thing insured is neutral
property: or, it may be promissory;  as, that the ship shall sail
on or before a given day. 6 N. S. 53.

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  12. Warranties are also express or implied. An express warranty
is a particular stipulation introduced into the written contract,
by the  agreement of  the parties;   an  implied warranty  is  an
agreement which  necessarily  results  from  the  nature  of  the
contract: as,  that the ship shall be seaworthy when she sails on
the voyage insured.

   13. The warranty being in the nature of a condition precedent,
it is  to be  performed by  the insured, before he can demand the
performance of  the contract  on the  part of the insurer. Marsh.
Inst. B. 1, c. 9. See, generally, Bouv. Inst. Index, h. t.

   WARRANTY, VOUCHER TO, practice. A warranty is a contract real,
annexed to  lands and tenements, whereby a man is bound to defend
such lands  and tenements  from another  person;   and in case of
eviction by title paramount, to give him lands of equal value.

   2. Voucher  to warranty  is the calling of such warrantor into
court by  the party  warranted, (when  tenant in  a  real  action
brought for  recovery of such lands,) to defend the suit for him;
Co. Litt.  101, b;   Com.  Dig. Voucher, A 1;  Booth, 43 2 Saund.
32, n.  1;   and the time of such voucher is after the deman-dant
has counted.  It lies  in most real and mixed actions, but not in
personal. Where  the voucher  has been  made and  allowed by  the
court, the  vouchee either voluntarily appears, or there issues a
judicial writ  (called a  summons ad  warrantizandum,) commanding
the sheriff  to summon  him. Where  he, either voluntar-ily or in
obedience to this writ, appears and offers to warrant the land to
the tenant, it is called entering into the warranty;  after which
he is  considered as  tenant in  the action,  in the place of the
original tenant.  The deman-dant then counts against him de novo,
the vouchee  pleads to  the new  count, and the cause proceeds to
issue. 2 Inst. 241 a;  2 Saund. 32, n. 1;  Booth, 46.

   3. Voucher  of warranty  is, in  the present  rarity  of  real
actions, unknown in practice. Steph. Plead. 85.

   WASTE. A spoil or destruction houses, gardens, trees, or other
corporeal hereditaments,  to the  disherison of him that hath the
remainder or reversion in fee simple or fee tail 2 Bl. Comm. 281.

   2. The doctrine of waste is somewhat different in this country
from what it is in England. It is adapted to our circumstances. 3
Yeates, R. 261;  4 Kent, Com. 76;  Walk. Intr. 278;  7 John. Rep.
227;   2 Hayw. R. 339;  2 Hayw. R. 110;  6 Munf. R. 134;  1 Rand.
Rep. 258;   6  Yerg. Rep.  334.  Waste  is  either  voluntary  or

   3. -  §1. Voluntary  waste. A  voluntary waste  is an  act  of
commission, as  tearing down  a house.  This  kind  of  waste  is
committed in  houses, in  timber, and in land. It is committed in
houses  by   removing  wainscots,   floors,  benches,   furnaces,
window-glass, windows,  doors, shelves,  and  other  things  once
fixed to the freehold, although they may have been erected by the
lessee himself,  unless they  were erected  for the  purposes  of
trade. See Fixtures;  Bac. Ab. Waste, C 6. And this kind of waste
may take place not only in pulling down houses, or parts of them,

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but also  in changing their forms;  as, if the tenant pull down a
house and  erect a  new one in the place, whether it be larger or
smaller than  the first;   2 Roll. Ab. 815 , 1. 33;  or convert a
parlor into  a stable;   or  a grist-mill into a fulling-mill;  2
Roll. Abr.  814, 815;   or  turn two  rooms into one. 2 Roll. Ab.
815, 1.  37. The  building of a house where there was none before
is said  to be  a waste;   Co.  Litt. 53,  a;  and taking it down
after it  is built,  is a  waste. Com.  Dig. Waste,  D 2. It is a
general rule  that when  a lessee  has annexed  anything  to  the
freehold during  the term,  and afterwards  takes it  away, it is
waste. 3  East, 51.  This principle  is established in the French
law. Lois des Bit. part. 2,

  3, art. 1;  18 Toull. n. 457.

  4. But at a very early period several exceptions were attempted
to be made to this rule, which were at last effectually engrafted
upon it  in favor  of trade,  and of  those vessels and utensils,
which are immediately subservient to the purposes of trade. Ibid.

   5. This relaxation of the old rule has taken place between two
descriptions of  persons;   that is,  between  the  landlord  and
tenant, and between the tenant for life or tenant in tail and the
remainder-man or reversioner.

   6. As  between the landlord and tenant it is now the law, that
if the  lessee annex  any chattel to the house for the purpose of
his trade,  he may  disunite it  during the  continuance  of  his
interest, 1  H.  B.  258.  But  this  relation  extends  only  to
erections for the purposes of trade.

   7. It  has been  decided that  a tenant  for years  may remove
cider-mills, orna-mental  marble chimney  pieces, wainscots fixed
only by  screws, and such like. 2 Bl. Com. 281, note by Chitty. A
tenant of a farm cannot remove buildings which he has erected for
the purposes  of husbandry,  and  the  better  enjoyment  of  the
profits of  the land,  though he  thereby leaves the premises the
same as when he entered. 2 East, 88;  3 East, 51;  6 Johns., Rep.
5;  7 Mass. Rep. 433.

   8. Voluntary  waste may  be committed  on timber,  and in  the
country from  which we  have borrowed  our laws,  the law is very
strict. In  Pennsylvania, however,  and many of the other states,
the law has applied itself to our situation, and those acts which
in England  would amount  to waste,  are not  so accounted  here.
Stark. Ev.  part 4,  p. 1667,  n.;  3 Yeates, 251. Where wild and
uncultivated land,  wholly  covered  with  wood  and  timber,  is
leased, the  lessee may fell a part pf the wood and timber, so as
to fit  the land  for cultivation, without being liable to waste,
but he  cannot cut down the whole so as permanently to injure the
inheritance. And  to what extent the wood and timber on such land
may be cut down without waste, is a question of fact for the jury
under the direction of the court. 7 Johns. R. 227. The tenant may
cut down  trees for the reparation of the houses, fences, hedges,
stiles, gates,  and the  like;   Co. Litt. 53, b;  and for mixing
and repairing  all instruments  of husbandry,  as ploughs, carts,
harrows, rakes, forks, &c. Wood's Inst. 344. The tenant may, when

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he is unrestrained by the terms of his lease, out down timber, if
there   be not enough dead timber. Com. Dig Waste, D 5;  F. N. B.
59 M.  Where the  tenant, by  the conditions  of  his  lease,  is
entitled to  cut down  timber, he is restrained nevertheless from
cutting down  ornamental trees,  or those planted for shelter;  6
Ves. 419;  or to exclude objects from sight. 16 Ves. 375.

   9. Windfalls are the property of the landlord, for whatever is
severed by  inevitable necessity,  as  by  a  tempest,  or  by  a
trespasser, and by wrong, belongs to him who has the inheritance.
3 P. Wms. 268;  11 Rep. 81, Bac. Abr. Waste, D 2.

   10.  Waste  is  frequently  committed  on  cultivated  fields,
orchards, gardens,  meadows, and  the like.  It is proper here to
remark that there is an implied covenant or agreement on the part
of the  lessee to use a farm in a husbandman-like manner, and not
to exhaust  the soil  by neglectful  or improper tillage. 5 T. R.
373. See  6 Ves.  328. It is therefore waste to convert arable to
woodland and  the contrary,  or meadow  to arable;   or meadow to
orchard. Co.  Lit. 53, b. Cutting down fruit trees;  2 Roll. Abr.
817, l.  30;   although planted  by the tenant himself, is waste;
and it  was held  to be  waste for  an outgoing  tenant of garden
ground to  plough up  strawherry beds  which be  had bought  of a
former tenant when he entered. i Camp. 227.

   11. It  is a  general rule that when lands are leased on which
there are  open mines  of metal  or coal or pits of gravel, lime,
clay, brick,  earth, stone,  and the like, the tenant may dig out
of such  mines, or pits. Com. Dig. Waste, D 4. But he cannot open
any new  mines or  pits without being guilty of waste Co. Lit. 53
b;  and carrying away the soil, is waste. Com. Dig. Waste, D 4.

   12. -  §2. Permissive  waste. Permissive  waste in  houses  is
punishable where  the tenant  is expressly  bound to  repair,  or
where he  is so  bound on an implied covenant. See 2 Esp. R. 590;
1 Esp.  Rep. 277;   Bac.  Abr. Covenant,  F. It  is waste  if the
tenant suffer  a house  leased to him to remain uncovered so long
that the  rafters or  other timbers  of the  house become rotten,
unless the  house was  uncovered when the tenant took possession.
Com. Dig. Waste, D 2.

   13. - §3. Of remedies for waste. The ancient writ of waste has
been superseded. It is usual to bring case in the nature of waste
instead of  the action  of  waste,  as  well  for  permissive  as
voluntary waste.

   14. Some  decisions have made it doubtful whether an action on
the case  for permissive  waste can  be  maintained  against  any
tenant for  years. See  1 New  Rep. 290;  4 Taunt. 764;  7 Taunt.
392;   S. C. 1 Moore, 100;  1 Saund. 323, a, n. i. Even where the
lessee covenants  not to do waste, the lessor has his election to
bring either  an action on the case, or of, covenant, against the
lessee for waste done by him during the term. 2 Bl. Rep. 1111;  2
Saund. 252,  c. n.  In an  action on  the case  in the  nature of
waste, the plaintiff recovers only damages for the waste.

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   15. The  latter action  has this  advantage over  an action of
waste, that  it may  be brought  by him in reversion or remainder
for life  or years,  as well  as in  fee or  in tail;    and  the
plaintiff is  entitled to  costs in  this action, which he cannot
have in an action of waste., 2 Saund. 252, n. See, on the subject
in general,  Woodf. Landl.  & T.  217, ch.  9, s.  1;   Bac. Abr.
Waste;  Vin. Abr. Waste;  Com. Dig. Waste;  Supp. to Ves. jr. 50,
325, 441;  1 Vern. R. 23, n.;  2 Saund. 252, a, n. 7, 259, n. 11;
Arch. Civ.  Pl. 495;   2  Sell. Pr. 234;  3 Bl. Com. 180, note by
Chitty;   Anier. Dig.  Waste;   Whart. Dig.  Waste;   Bouv. Inst.
Index, h. t.

   As to remedies against waste by injunction, see 1 Vern. R. 23,
n.;   5 P. Wms. 268, n. F;  1 Eq. Cas. Ab. 400;  6 Ves. 787, 107,
419;   8 Ves.  70;   16 Ves.  375;   2 Swanst. 251;  3 Madd. 498;
Jacob's R.  70;   Drew. on  Inj. part 2, c. 1, p. 134. As between
tenants in  common, 5  Taunt. 24;   19 Ves. 159;  16 Ves. 132;  3
Bro. C. C. 622;  2 Dick. 667;  Bouv. Inst. Index, h. t.;  and the
article Injunction.  As to  remedy  by  writ  of  estrepement  to
prevent waste,  see Estrepement;   Woodf  Landl. &  T.  447;    2
Yeates, 281;  4 Smith's Laws of Penn. 89;  3 Bl. Com. 226.  As to
remedies in  cases of fraud in committing waste, see Hov. Fr. ch.
7, p. 226 to 238.

   WASTE BOOK,  com. law.  A book  used among  merchants. All the
dealings  of   the  merchant   are  recorded   in  this  book  in
chronological order as they occur.

   WATCH, police. To watch is, properly speaking, to stand sentry
and attend  guard during  the night time: certain officers called
watchmen are  appointed in  most of the United States, whose duty
it is  to arrest  all persons  who  are  violating  the  law,  or
breaking the  peace. (q.  v.) Vide  1 Bl.  Com. 356;  1 Chit. Cr.
Law, 14, 20.

  WATCH AND WARD. A phrase used in the English law, to denote the
superinten-dence and  care of  certain officers, whose duties are
to protect the public from harm.

  WATCHMAN. An officer in many cities and towns, whose duty it is
to watch  during the  night and  take care of the property of the

   2. He  possesses generally  the  common  law  authority  of  a
constable (q.  v.) to  make arrests,  where there  is  reasonable
ground to  suspect a felony, though there is no proof of a felony
having been  committed. 1 Chit. Cr. L. 24;  2 Hale, 96;  Hawk. B.
2, c.  13, s. 1, &c.;  1 East, P. C. 303;  2 Inst. 52;  Com. Dig.
Imprisonment, H  4;  Dane's Ab. Index, h. t.;  3 Taunt. R. 14;  1
B. &  A. 227;   Peake, R. 89;  1 Moody's Cr. Cas. 334;  1 Esp. R.
294;  and vide Peace.

   3. By  an act  of  congress,  approved  Sept.  30,  1850,  the
compensation  of   watchmen  in   the  various   departments   of
government, shall be five hundred dollars per annum.

   WATER. That liquid substance of which the sea, the rivers, and
creeks are composed.

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   2. A pool of water, or a stream or water course, is considered
as part  of the land, hence a pool of twenty acres, would pass by
the grant  of twenty acres of land, without mentioning the water.
2 Bl.  Com. 18;  2 N. H. Rep. 255;  1, Wend. R. 255;  5 Paige, R.
141;   2 N.  H. Rep.  371;   2 Brownl.  142;  5 Cowen, R. 216;  5
Conn. R.  497;  1 Wend. R. 237. A mere grant of water passes only
a fishery. Co. Lit. 4 b.

  3. Like land, water is distinguishable into different parts, as
the sea,  (q. v.)  rivers, (q. v.) docks, (q. v.) canals, (q. v.)
ponds, q  v.) and  sewers, (q.  v.) and  to these may be added at
water course. (q. v.) Vide 4 Mason, R. 397 River;  Water course.

   WATER BAILIFF,  English law.  An officer  appointed to  search
ships in ports. 10 H. vii., 30.

   WATER COURSE.  This term is applied to the flow or movement of
the water in rivers, creeks, and other streams.

  2. In a legal sense, property In a water course is comprehended
under the  general name of land;  so that a grant of land conveys
to the  grantee not  only fields, meadows, and the like, but also
all the rivers and streams, which naturally pass over the surface
of the  land. 1 Co. Lit. 4;  2 Brownl. 142;  2 N. Hamp. Rep. 255;
5 Wend. Rep. 128.

   3. Those  who own  land bounding  upon  a  water  course,  are
denominated by  the  civilians  riparian  proprietors,  and  this
convenient term  has been  adopted by  judges and  writers on the
common law.  Ang. on  Water Courses,  3;   3 Kent,  Com. 354;   4
Mason's R. 397.

   4. Every  proprietor of  lands on  the banks  of a  river  has
naturally an  equal right  to the use of the water which flows in
the stream  adjacent to his lands, as it was wont to run (currere
solebat) without diminution or alteration.

   5. No proprietor has a right to use the water to the prejudice
of other  proprietors, above  or below him, unless he has a prior
right to  divert it,  or a  title to some exclusive enjoyment. He
has no  property in the water itself, but a simple usufruct as it
passes along.  Agua currit  et debet  currere, is the language of
the law. 3 Rawle, Rep. 84;  9 Co. 57, b.

  6. Though he may use the water while it runs over his lands, he
cannot unreasonably  detain it  or give it another direction, and
he must  return it  to its  ordinary channel  when it  leaves his
estate. Without  the consent  of the  adjoining  proprietors,  he
cannot divert  or diminish the quantity of the water, which would
otherwise descend  to the  proprietor below,  nor throw the water
back  upon   the  proprietor   above,  without  a  grant,  or  an
uninterrupted enjoyment of twenty years, which is evidence of it.
3 Kent,  Com. 353;   1  Wils. R.  178;   6 East,  203;  1 Simon &
Stuart, 190;  2 John. Ch R. 162, 463;  4 Mass. R. 401 17 John. R.
321;   5 Ohio  R. 822;   3  Fairf. R. 407;  8 Greenl. R. 268;  16
Pick. Rep.  247;   1 Coxes  Rep, 460;   Dig.  39, 3,  4, and  10;
Pothier, Traite  du Contrat  de Societe,  2e app.  n.  236,  237;
Bell's Law  of Scotland,  691;   Ang. on'  Water Courses,  12;  2
Conn. R. 584.

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   7. When there are two opposite riparian proprietors, each owns
that portion  of the bed of the river which is adjoining his land
usque ad  filum aquae;   or,  in other  words, to  the thread  or
central line  of the  stream;  Harg. Tracts, 5;  Holt's Rep. 499;
and if hydraulic works be erected on both banks, each is entitled
to an equal share of the water. 1 Paige's Chanc. Rep. 448.

   8. The  water can only be used by each as an entire stream, in
its natural  channel;  for of the property in the water there can
be no severance. 13 John. R. 212.

   9. But it seems that when an island is on the side of a river,
so as  to give  the riparian owner on that side one-fourth of the
water, the other is entitled to the whole of the three-fourths of
the river.  10 Wend.  Rep. 260.  See, also, 13 Mass. Rep. 507;  2
Caines' Cas.  87;   9 Pick.  R. 528;   3  Kent, Com. 344, 345;  3
Rawle's R. 84;  2 Watts, R. 327;  8 Greenl. R. 138, 253;  9 Pick.
Rep. 59;   10  Pick. R.  348;  10 Wend. R. 167;  Com. Dig. Action
for Nuisance,  A;  4 D. & R. 583;  S. C. 2 B. & C. 910;  1 Campb.
R. 463;   6  East, R. 208;  1 Wils. Rep. 174;;  1 B. & A. 258;  5
Taunt. R. 454;  2 Esp. R. 679;  2 Hill. Abr. c. 14, 16, 17;  Ham.
N. P. 199;  1 Vin. Ab. 557 22 Vin. Abr. 525;  2 Chit. Bl. 403, n.
7;  3 Roll. 140, l. 40;  Lois des Bat. part 1, c. 3, sed. 1, art.
3;  Crabb on R. P. §398 to 443. Vide River.

  WATER ORDEAL. An ancient form of trial, now abolished, by which
the accused,  tied band  and foot, were cast into cold water, and
if they  did not  sink they  were deemed  innocent or  they  were
compelled to  plunge their limbs into hot water, and if they came
out unhurt they were considered innocent. Vide Ordeal.

   WAVESON. This  name is  given to such goods as after shipwreck
appear upon the waves. Jacob, Law Dict. h. t.

   WAY, estates.  A passage,  street or road. A right of way is a
privilege which  an individual  or a  particular  description  of
persons, such  as the  inhabitants of  a particular place, or the
owners or occupiers of such place may have, of going over another
person's ground.

   2. It  is an incorporeal hereditament of a real nature, a mere
easement, entirely different from public or private roads.

   3. A right of way may arise, 1. By prescription and immemorial
usage. 2  McCord, 447 5 Har. & John. 474;  Co. Litt. 113, b;  Br.
Chem. 2;   1 Roll. Ab. 936. 2. By grant. 3 Lev. 305;  1 Ld. Raym.
75;   17 Mass. 416;  Crabb on R. P. §366. 3. By reservation 4. By
custom. 5.  By acts of the legislature. 6. From necessity, when a
man's ground  is enclosed  and completely  blocked up, so that he
cannot, without  passing over  his  neighbor's  land,  reach  the
public road.  For example,  should A  grant a piece of land to B,
surrounded by  land belonging to A;  a right of way over A's land
passes of  necessity to  B, otherwise  he could  not  derive  any

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benefit from  the acquisition.  Vide 3  Rawle, 495;   2 Fairf. R.
1,56;  2 Mass. 203;  2 McCord, 448;  3 McCord, 139;  2 Pick. 577;
14 Mass. 56;  2 Hill, S. C. R. 641;  and Necessity. The way is to
be taken  where it  will be least injurious to the owner. 4 Kent,
Com. 338.  4. Lord  Coke, adopting  the civil law, says there are
three kinds  of ways.  1. A  foot-way, called iter. 2. A foot-way
and horse-way,  called adus.  3. A  cart-way, which  contains the
other two,  called via. Co. Lit. 56, a;  Pothier, Pandectae, lib.
8, t.  3, §1;   Dig. 8, 3;  1 Bro. Civ. Law, 177. Vide Yelv. 142,
n;   Id. 164;  Woodf. Landl. & Ten. 544;  4 Kent, Com. 337;  Ayl.
Pand. 307;   Cruise's  Dig. tit.  24;   1 Taunt. R. 279;  R. & M.
151;   1 Bail.  R. 58;   2  Hill. Abr. c. 6;  Crabb on Real Prop.
§360 to 397;  Bouv. Inst. Index, h. t.;  Easement;  Servitude.

   WAY BILL,  contracts. A writing in which is set down the names
of passengers,  who are  carried in  a public  conveyance, or the
description of  goods sent  with a  common carrier by land;  when
the goods  are carried  by water, the instrument is called a bill
of lading. (q. v.)

  WAY GOING CROP. In Pennsylvania, by the custom of the, country,
a tenant  for a  term certain is entitled after the expiration of
his Iease,  to enter and take away the crop of grain which he had
put into  the ground  the preceding  fall. This is called the way
going crop. 5 Binn. R. 289;  2 S. & R. 14;  1 P. R. 224.

   WAYS AND  MEANS. In  legislative assemblies  there is  usually
appointed a  committee whose  duties are  to  inquire  into,  and
propose to  the house,  the ways and means to be adopted to raise
funds for  the use  of the  government. This  body is  called the
committee of ways and means.

   WEAR. A  great dam  made across  a river, accommodated for the
taking of  fish, or  to convey  a stream  to a  mill. Jacob's Law
Dict. h. t. Vide Dam.

  WED. A covenant or agreement;  whence a wedded husband.

  WEEK. Seven days of time.

   2. The week commences immediately after twelve o'clock, on the
night between  Saturday and  Sunday, and  ends at twelve o'clock,
seven days of twenty-four hours each thereafter.

   3. The  first day  of the  week is called Sunday;  (q. v.) the
second, Monday;   the  third, Tuesday;   the,  fourth, Wednesday;
the fifth,  Thursday;   the sixth,  Friday;    and  the  seventh,
Saturday. Vide 4 Pet. S. C. Rep. 361.

   WEIGHAGE, mer.  law. In  the English  law it is a duty or toll
paid for weighing merchandise;  it is called tronage, (q. v.) for
weighing wool  at the  king's beam, or pesage, for weighing other
avoirdupois goods. 2 Chit. Com: Law, 16.

  WEIGHT. A quality in natural bodies, by which they tend towards
the centre of the earth.

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   2. Under  the article  Measure, (q. v.) it is said that by the
constitution congress possesses the power "to fix the standard of
weights  and   measures,"  and  that  this  power  has  not  been

  3. The weights now generally used in the United States, are the
same as those of England;  they are of two kinds:

                 1. AVOIRDUPOIS WEIGHT.

   1st. Used  in almost  all commercial  transactions, and in the
comwon dealings of life.

 27 1/3 1/2 grains  =    1 dram

 16 drams           =    1 ounce

 16 ounces          =    1 pound, (lb.)

 28 pounds          =    1 quarter, (qr.)

 4 quarters         =    1 hundred weight, (cwt.)

 20 hundred weight  =    1 ton.

 2d. Used for meat and fish.

 8 pounds           =    1 stone

 3d. Used in the wool trade.

                              Cwt. qr.  lb.

 7 pounds           =    1 clove
14 pounds           =    1 stone       =       0    0   14

 2 stones           =    1 tod       =     0        1    0

 6 1/2 tods         =    1 wey         =       1    2   14

 2 weys        =    1 sack        =     3      1    0
12 sacks       =    1 last        =      39    0    0

 4th. Used for butter and cheese.

 8 pounds           =    1 clove

 56 pounds          =    1 firkin.

                     2. TROY WEIGHT.

 24 grams           =    1 pennyweight

 20 pennyweights    =    1 ounce

 12 ounces          =    1 pound.

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 4.  These are  the denominations  of troy  weight, when used for
weighing gold,  silver and precious stones, except diamonds. Troy
weight is  also used  by apo-thecaries  in compounding medicines;
and by  them the ounce is divided into eight drams, and the drain
into three  scruples, so  that the  latter  is  equal  to  twenty
grains. For scientific purposes, the grain only is used, and sets
of weights  are constructed  in decimal  progression, from 10,000
grains downward  to one-hundredth of a grain. The caret, used for
weighing diamonds, is three and one-sixth grains.

   5. A short account of the French weights and measures is given
under the article Measure.

   WEIGHT OF  EVIDENCE. This  phrase is  used to signify that the
proof on one side, of a cause is greater than on the other.

   2. When  a verdict has been rendered against the weight of the
evidence, the  court may,  on this ground, grant a new trial, but
the court  will exercise  this power  not merely with a cautious,
but a  strict and  sure judgment,  before they send the case to a
second jury.

   3. The  general rule  under such  circumstances is,  that  the
verdict  once  found  shall  stand:  the  setting  aside  is  the
exception, and  ought to  be an  exception, of  rare  and  almost
singular occurrence.  A new  trial will be granted on this ground
for either party;  the evidence, however, is not to be weighed in
golden scales.  2 Hodg. R. 125;  S. C. 3 Bingh. N. C. 109;  Gilp.
356;   4 Yeates, 437;  3 Greenl. 276;  8 Pick. 122;  5 Wend. 595;
7 Wend. 380;  2 Vir. Cas. 235.

   WELCH MORTGAGE,  Eng. law,  contracts. A  species of  security
which partakes  of the  nature of  a mortgage, as there is a debt
due, and  an estate is given as a security for the repayment, but
differs from  it in  the circumstances that the rents and profits
are to  be received  without account  till the principal money is
paid off,  and there  is no  remedy to enforce payment, while the
mortgagor has a perpetual power of redemption.

  2. It is a species of vivum vadium. Strictly, however, there is
this distinction  between a Welch mortgage and a vivum vadium. In
the latter the rents and profits of the estate are applied to the
discharge of  the principal, after paying the interest;  while in
the former  the rents and profits are received in satisfaction of
his interest only. 1 Pow. Mortg. 373, a.

  WELL. A hole dug in the earth in order to obtain water.

   2. The  owner of  the estate  has a  right to  dig in  his own
ground, at  such a  distance as  is permitted  by law,  from  his
neighbor's land;   he is not restric-ted as to the size or depth,
and is  not liable  to any  action for  rendering the well of his
neighbor useless  by so doing. Lois des Bat. part. 1, c. 3, sect.
2, art. 2, §2.

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   WELL KNOWING.  These words  are used in a declaration when the
plaintiff sues  for an  injury which  is not  immediate and  with
force, and  the act  or nonfea-sance  complained of was not prima
facie actionable,  not only  the injury,  but  the  circumstances
under which  it was  committed, ought  to be stated, as where the
injury was  done by  an animal. In such case, the plaintiff after
stating the  injury, continues,  the defendant  well knowing  the
mischievous propensity  of his dog, permitted him to go at large.
Vide Scienter.

   WERE. The  name of  a fine  among the  Saxons imposed  upon  a

   2. The  life of  every man,  not excepting  that of  the  king
himself, was  esti-mated at a certain price, which was called the
were, or  vestimatio capitis.  The amount varied according to the
dignity of  the person  murdered. The  price of  wounds was  also
varied according  to the  nature of  the  wound,  or  the  member

   WERGILD, or  WEREGILD, old  Eng. law.  The price  which  in  a
barbarous age,  a person  guilty of  homicide or  other  enormous
offence  was   required  to   pay,  instead  of  receiving  other
punishment. 4  Bl. Com. 188. See, for the etymology of this word,
and a  tariff which  was paid  for the  murder of  the  different
classes of  men, Guizot,  Essais sur  l'Histoire de France, Essai
4eme, c. 2, §2.

   WETHER. A  castrated  ram,  at  least  one  year  old  in  ark
indictment it  may be  called a  sheep. 4  Car. & Payne, 216;  19
Eng. Com. Law Rep. 351.

  WHALER, mar. law. A vessel employed in the whale fishery.

   2. It  is usual  for the  owner of the vessel, the captain and
crew, to  divide  the  profits  in  just  proportions,  under  an
agreement similar to the contract Di Colonna. (q. v.)

   WHARF.  A  space  of  ground  artificially  prepared  for  the
reception of merchan-dise from a ship or vessel, so as to promote
the convenient loading and discharge of such vessel.

   WHARFAGE. The  money paid  for landing  goods upon, or loading
them from a wharf. Dane's Ab. Index, h. t.

   WHARFINGER. One  who owns or keeps a wharf, for the purpose of
receiving and shipping merchandise to or from it, for hire.

   2. Like a warehouseman, (q.v.) a wharfinger is responsible for
ordinary neglect,  and is  therefore required  to take  ordinary,
care of  goods entrusted  to him as such. The responsibility of a
wharfinger begins  when he  acquires, and  ends when he ceases to
have the custody of the goods in that capacity.

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   3. When  he begins  and ceases  to have  such custody  depends
generally upon  the usages  of trade  and of  the business.  When
goods are  delivered at  a wharf,  and the wharfinger has agreed,
expressly or  by implication,  to take  the custody  of them, his
responsibility commences;   but  a mere  delivery at  the  wharf,
without such  assent, does  not make him liable. 3 Campb. R. 414;
4 Campb.  R. 72;   6  Cowen,  R.  757.  When  goods  are  in  the
wharfinger's possession  to be  sent on  board of  a vessel for a
voyage, as  soon as  he delivers  the possession  and the care of
them to  the proper officers of the vessel, although they are not
actually  removed,   he  is,  by  the  usages  of  trade,  deemed
exonerated from any further responsibility. 5 Esp. R. 41;  Story,
Bailm. §453  Abbott on  Shipp. 226;   Molloy,  B.  2.  2,  s.  2;
Roccus, Not. 88;  Dig. 9, 4, 3.

   WHEEL. The  punishment of  the wheel  was formerly  to  put  a
criminal on  a wheel,  and then  to  break  his  bones  until  he
expired. This  barbarous punishment  was never used in the United
States, and  it has  been abolished  in  almost  every  civilized

  WHELPS. The young of certain animals of a base nature, or ferae

   2. It  is a  rule that when no larceny can be committed of any
creatures of  a base nature, which are ferae naturae, though tame
and reclaimed,  it cannot  be committed  of  the  young  of  such
creatures in  the nest,  kennel, or den. 3 Inst. 109;  1 Russ. on
Cr. 153.

   3. The  owner of  the land  is, however,  considered to have a
qualified property  in such  animals, ratione  impotentia. 2  Bl.
Com. 394.

   WHEN. At  which time, in wills, standing by itself unqualified
and unexplained, this is a word of condition denoting the time at
which the gift is to continence. 6 Ves. 243;  2 Meriv. 286.

   2. The  context of a will may show that the word when is to be
applied to  the possession  only, not to the vesting of a legacy;
but to justify this construction, there must be circumstances, or
other expressions  in the  will, showing  such to  have been  the
testator's intent.  7 Ves.  422;   9 Ves. 230 Coop. 145;  11 Ves.
489;   3;   Bro. C.  C. 471.  For the  effect of the word when in
contracts and in wills in the French law, see 6 Toull. n. 520.

   WHEN AND  WHERE. These  words are  used in  a plea  when  full
defence is made the form is, "when and were it shall behove him."
This acknowledges  the jurisdiction  of the  court. 1  Chit.  Pl.

   WHEREAS. This word implies a recital, and in general cannot be
used in  the  direct  and  positive  averment  of  a  fact  in  a
declaration or plea. Those facts which are directly denied by the
terms of  the general  issue, or  which may,  by the  established
usage of  pleading, be  specially traversed,  must be  averred in
positive and  direct terms;   but  facts, however material, which
are not directly denied by the terms of the general issue, though
liable to  be contested  under it,  and which,  according to  the
usage of pleading, cannot be specially tra-versed, may be alleged
in the declaration by way of recital, under a whereas. Gould, Pl.
c. 43, §42;  Bac. Ab. Pleas, &c., B. 5, 4;  2 Chit. Pl. 151, 178,
191;  Gould, Pl. c. 3, §47.

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  WHIPPING, punishment. The infliction of stripes.

  2. This mode of punishment, which is still practiced in some of
the states,  is a relict of barbarism;  it has yielded in most of
the middle and northern states to the penitentiary system.

   3. The punishment of whipping, so far as the same was provided
by the  laws of  the United  States, was  abolished by the act of
congress of  February 28,  1839, s. 5. Vide 1 Chit. Cr. Law, 796;
Dane's Ab. Index, h. t.

   WHITE PERSONS.  The  acts  of  congress  which  authorize  the
naturalization of  aliens, confine the description of such aliens
to free white persons.

   2. This  of course excludes the African race when pure, but it
is not  easy to  say what shade of color or mixture of blood will
make a white person.

   3. The  constitution of Pennsylvania, as amended, confines the
right of  citi-zenship to  free white  persons;  and these words,
white persons,  or  similar  words,  are  used  in  most  of  the
constitutions of the southern states, in describing the electors.

  WHITE RENT, English law. Rents paid in silver, and called white
rents or  redditus albi,  to distinguish  them from  other  rents
which were not paid in money. 12 Inst. 19. Vide Alba firma.

   WHOLE BLOOD.  Being related  by both  the father  and mother's
side;   this phrase  is used in contradistinction to half, blood,
(q. v.) which is relation only on one side. See Blood.

   WHOLESALE. To  sell by wholesale, is to sell by large parcels,
generally in original packages, and not by retail. (q. v.)

   WIDOW. An unmarried woman whose husband is dead.

  2. In legal writings, widow is an addition given to a woman who
is unmarried  and whose husband is dead. The addition of spinster
is given  to a woman who never was married. Lovel. on Wills, 269.
See Addition. As to the rights of a widow, seq Dower.

  WIDOW'S CHAMBER, Eng. law. In London the apparel of a widow and
the furniture of her chamber, left by her deceased husband, is so
called, and the widow is entitled to it. 2 Bl. Com. 518.

   WIDOWHOOD. The state of a man whose wife is dead or of a woman
whose husband is dead. In general there is no law to regulate the
time during  whichh a  man must  remain a  widower, or  a woman a
widow, before  they marry  a second  time. The  term widowhood is
mostly applied to the state or condition of a widow.

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   WIDOWER. A  man whose  wife is  dead. A widower has a right to
administer  to   his  wife's   separate  estate,   and   as   her
administrator to  collect debts due to her, generally for his own

   WIFE, domestic relations. A woman who has a husband.

   2. A  wife,  as  such,  possesses  rights  and  is  liable  to
obligations.  These   will  be  considered.  1st.  She  may  make
contracts for  the purchase  of real  estate for her own benefit,
unless her husband expressly dissents. 6 Binn. R. 427. And she is
entitled to  a legacy directly given to her for her separate use.
6 Serg.  & Rawle, R. 467. In some places, by statutory provision,
she may  act as  a feme sole trader, and as such acquire personal
property. 2 Serg. & Rawle, R. 289.

   3. 2d.  She may  in Pennsylvania,  and in  most other  states,
convey her  interest in  her own  or her  husband's lands by deed
acknowledged in a form prescribed by law. 8 Dowl. R. 630.

   4. -  3d. She  is under obligation to love, honor and obey her
husband and  is bound  to follow  him wherever  he may  desire to
establish himself:  5 N.  S. 60;   (it is presumed not out of the
boundaries of  the United States,) unless the husband, by acts of
injustice and such as are contrary to his marital duties, renders
her life or happiness insecure.

  5. - 4th. She is not liable for any obligations she enters into
to pay  money on any contract she makes, while she lives with her
husband;  she is presumed in such case to act as the agent of her
husband. Chitty, Contr. 43

   6. -  5th. The  incapacities of  femes covert,  apply to their
civil rights, and are intended for their protection and interest.
Their political  rights stand  upon different  grounds, they can,
therefore, acquire  and lose  a national char-acter. These rights
stand upon  the general  principles of  the law of nations. Harp.
Eq. R. 5 3 Pet. R. 242.

   7. -  6th. A  wife, like all other persons, when she acts with
freedom, may  be punished  for her  criminal acts.  But  the  law
presumes, when  she commits in his presence a crime, not malum in
se, as  murder or  treason, that  she acts  by  the  command  and
coercion of  her husband,  and, upon this ground, she is exempted
from punishment.  Rose. on  Cr. Ev.  785.  But  this  is  only  a
presumption of  law, and  if it  appears, upon the evidence, that
she did  not in  fact commit  the act  under compulsion,  but was
herself a principal actor and inciter in it, she may be punished.
1 Hale,  P. C.  516;   1 Russ.  on Cr.  16,  20.  Vide  Contract;
Divorce;  Husband;  Incapacity;  Marriage;  Necessaries;  Parties
to actions;   Parties  to contracts;  Women and, generally, Bouv.
Inst. Index,

  WIFE'S EQUITY. By this phrase is understood the equitable right
of a  wife to  have settled  upon her and her children a suitable
provision out  of her  estate whenever  the husband cannot obtain
it, without  the aid  of a  court of equity. Shelf. on M. and D.,

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   2. By  the marriage  the husband  acquires an  interest in the
property of  his wife in consideration of the obligation which he
contracts by the marriage, of maintaining her and their children.
The common  law enforces  this duty  thus voluntarily  assumed by
him, and  he can  alien the property to which he is thus entitled
jure mariti,  or in case of his bankruptcy or insolvency it would
vest in  his assignee  for the  benefit of his creditors, and the
wife  would  be  left  with  her  children,  entirely  destitute,
notwithstanding her  fortune may  have been great. To remedy this
evil, courts of equity, in certain cases, give a provision to the
wife, which is called the wife's equity.

   3. The  principle upon  which courts of equity act is, that he
who seeks  the aid  of equity  must do  equity, and  that will be
withheld until  an adequate  settlement has  been made. 1 P. Wms.
459, 460. See 5 My. & Cr. 105;  11 Sim. 569;  4 Hare, 6.

   4. It  will be proper to consider, 1. Out of what property the
wife has  a right to claim her equity to a settlement. 2. Against
whom she  may make  such a claim. 3. Her rights. 4. The rights of
her children. 5. When her rights to a settlement will be barred.

   5. - 1. Where the property is equitable and not recoverable at
law, it  cannot be  obtained without  making a  settlement upon a
wife and children, if one be required by her 2 P. Wins. 639;  and
where, though  the property  be legal  in its nature, it becomes,
from collateral  circumstances, the  subject of a suit in equity,
the wife's right to a settlement will attach. 5 My. & Cr. 97. See
2 Ves.  jun., 607,  680;   4 Bro. C. C, 338;  3 Ves. 166, 421;  9
Ves. 87;   5 Madd. R. 149;  5 Ves. 517;  13 Maine, 124 10 Ala. R.
401;   9 Watts, 90;  5 John. Ch. R. 464;  3 Cowen, 591;  6 Paige,
366;  2 Bland. 545;  2 Paige, 303.

   6. -  2. The wife's equity to a settlement is binding not only
upon the  husband, but  upon his  assignee under  the bankrupt or
insolvent laws.  2 Atk.  420;   3 Ves. 607;  4 Bro. C. C. 138;  6
John. Ch.  R. 25;   1  Paige, 620;   4 Metc. 486;  4 Gill & John.
283;   5 Monr.  338;  10 Ala. R. 401 1 Kelly, 637. And even where
the husband  assigned the  wife's equitable  right for a valuable
consideration, the assignee was considered liable. 4 Ves. 19.

  7. - 3. As to the amount of the rights of the wife, the general
rule is  that one  half of  the wife's  property shall be settled
upon her. 2 Atk. 423;  3 Ves. 166. But it is in the discretion of
the court  to give  her, an  adequate settlement  for herself and
children. 5  John. Ch. R. 464;  6 John. Ch. R. 25;  3 Cowen, 591;
1 Desaus.  263: 2  Bland. 545;  1 Cox, R. 153;  5 B. Monr. 31;  3
Kelly, 193;  1 D, & W. 407;  9 Sim, 597;  1 S. & S. 250.

   8. -  4. Whenever  the wife insists upon her equity, the right
will be  exten-ded to  her children,  but the  right is  strictly
personal to  the wife,  and her  children cannot  insist upon  it
after her  death. 2  Eden, 337;   1 J. & W. 472;  1 Madd. R. 467;
11 Bligh, N. S. 104;  2 John. Ch. R. 206;  3 Cowen, 591;  10 Ala.
R. 401;  1 Sanf. 129.

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  9. - 5. The wife's equity will be barred, first, by an adequate
settlement having  been made  upon her;   2  Ves. 675;   when she
lives in  adultery apart  from her  husband 4  Ves. 146;   but  a
female ward  of court,  married without  its consent, will not be
barred, although she should be living in adultery. 1 V. & B. 302.

   WILD ANIMALS.  Animals in  a state  of nature;   animals ferae
naturae. Vide Animals;  Ferae naturae.

   WILFULLY, intentionally.

  2. In charging certain offences it is required that they should
be stated to be wilfully done. Arch. Cr. Pl. 51, 58;  Leach's Cr.
L. 556.

    3.  In  Pennsylvania  it  has  been  decided  that  the  word
maliciously was  an equivalent  for  the  word  wilfully,  in  an
indictment for arson. 5 Whart. R. 427.

   WILL, criminal  law. The  power of  the mind which directs the
actions of a man.

   2. In criminal law it is necessary that there should be an act
of the will to commit a crime, for unless the act is wilful it is
no offence.

   3. It  is the  consent of the will which renders human actions
commendable or  culpable, and  where there is no win there can be
no transgression.

   4. The  defect or  want of  will may be classed as follows: 1.
Natural, as  that  of  infancy.  2.  Accidental;    namely,  1st.
Dementia. 2d.  Casualty or  chance. 3d.  Ignorance.  (q.  v.)  3.
Civil;   namely,  1st.  Civil  subjection.  2d.  Compulsion.  3d.
Necessity. 4th. Well-grounded fear. Hale's P. C. c. 2 Hawk. P. C.
book 1, c. 1.

   WILL or TESTAMENT. The legal declaration of a man's intentions
of what  he wills to be performed after his death. Co. Litt. 111;
Swinb. Pt. 1, s. II. 1;  Shep. Touch. 398;  Bac. Abr. Wills, A.

   2. The  terms will  and testament are synonymous, and they are
used indifferently  by common  lawyers, or  one  for  the  other.
Swinb. p.  1, s. 1. 5;  Bac. Ab. Wills. A. Civilians use the term
testament only. See Testament.

  3. There are five essential requisites to make a good will.

   4. - 1. The testator must be legally capable of making a will.
Generally all persons who may make valid contracts can dispose of
their property  by will.  See  Parties  to  contracts.  This  act
requires a  power of  the mind  freely to  dispose  of  property.
Infants, because  of their  tender age,  and  married  women,  on
account of  the supposed influence and control of their husbands,
have no  capacity to  make a  will, with  these exceptions,  that
infants at  common law  may dispose of their personal estate, the
males when  over fourteen years of age, and the females when over
twelve;   this rule  in relation to infants is not uniform in the
United States.  Swinb. p.  2, s.  2;   Bac. Ab. Wills, B. Persons
devoid of  understanding, as  idiots and  lunatics, cannot make a

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   5. -  2. The testator at the time of making his will must have
animum test-andi,  or a serious intention to make such will. If a
man therefore  jestingly or  boastingly and not seriously, writes
or says  that such  a person  shall have  his  goods  or  be  his
executor, this  is no will. Bac. Ab. Wills, C;  Com. Dig. Estates
by Devise,  D 1.  See 4  Serg. &  Rawle, 545;   2 Yeates, 324;  5
Binn. 490;  1 Des. R. 543.

   6. -  3. The  mind of  the testator in making his will must be
free, and not moved by fear, fraud or flattery. In such cases the
will is  void or  at least  voidable. Bac.  Ab. Wills,  C;  see 3
Serg. & Rawle, 269. Vide influence.

  7. - 4. There must be a person to take, capable of taking;  for
to render  a devise  or bequest  valid there  must be  a donee in
esse, or  in rerum  natura, and  one that  shall have capacity to
take the  thing given,  when it  is to vest, or the gift shall be
void. Plowd. 345. See Legatee.

   8. - 5. The will must be put in proper form., Wills are either
written or nuncupative.

   9. -  1. A  will in  writing must  be, 1.  Written on paper or
parchment;   it may  be in  any language,  and in  any character,
provided it  can be  read or  understood. 2. It must be signed by
the testator or some person authorized by him;  but a sealing has
been held  to be a sufficient signing. 2 Str. 764. But see 3 Lev.
R. 1;  1 Const. R. 343;  18 Ves. R. 183;  2 Ball & B. 104 5 Mood.
R. 484,  and article  To sign.  And it  ought to be signed by the
attesting witnesses. In some states three witnesses are required,
who should  sign the  will as  such at  the request  and  in  the
presence of the testator and of each other. This formality should
generally be  pursued, as  the testator  may have  lands in  such
states  which   would  not  pass  without  it.  See,  as  to  the
attestation of  wills, Bac.  Ab. Wills,  D;  Rob. on Wills, c. 1,
part 15.  3. It  must be published, that is, the testator must do
some act  from which  it can  be concluded  that he  intended the
instrument to  operate as his will. 6 Cruise, 79;  4 Burn's Eccl.
Law, 119.  As to the republication of wills, see Bac. Abr. Wills,
D 3;   and  article Publication.  4. To make a good will of goods
and chattels  there must be an executor named in it, otherwise it
will be  a codocil  only, and the party is said to die intestate;
in such a case administration must be granted. Bac. Abr. Wills, D

   10. -  2.  A  nuncupative  will  or  testament,  is  a  verbal
declaration by  a tes-tator of his will before a competent number
of legal witnesses.

   11. Before the statute of frauds they were very common, but by
that statute, 29 C. H. c. 3, which has been substantially adopted
in a  number of  the states,  these wills  were laid  under  many
restrictions. Vide  Dane's Ab.  chap. 127, a. 2;  3 Harr. & John.
208;  6 Munf. R. 123;  1 Munf. R. 456;  4 Hen. & Munf. 91-100.

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   12. In  New York nuncupative wills have been abolished, except
made by  a soldier  while in  actual military  service, or  by  a
mariner while  at sea.  2 New York Revised Statutes, 60, sec. 22.
As to  nuncupative wills in Louisiana, see Testament nuncupative;
and Civil Code of Louisiana, article 1574.

   13. It  is a rule that the last will revokes all former wills.
It follows  then that a man cannot by any testamentary act impose
upon himself  the inability  of making  another inconsistent with
and revoking the first will. Bac. Ab. Wills, E;  Swinb. pt. 7, s.

   14. A  will voluntarily  and intentionally made by a competent
testator, according  to the form required by law, may be avoided,
1st. By  revocation, see Revocation;  Bac. Abr. Wills, G 1;  Vin.
Abr. Devise,  P;  1 Rolle, Ab. 615;  Com. Dig. Estates by Dev. F;
and, 2d. By fraud.

   15. Among  the civilians  they have  two other kinds of wills,
namely: the  mystic, which  is a  will enveloped  in a  paper and
sealed, and  the witnesses  attest that  fact, the  other is  the
olographic;  which is wholly written by the testator himself. See
Testament. As  to wills  and testaments,  see Swinburne on Wills;
Roberts on  Wills;   Lovelass  on  Wills;    Roper  on  Legacies;
Lowndes on  Legacies;   Will. on  Ex. pt.  1;   Vin. Abr. Devise;
Rolle's Abr.  Devise;  Bac. Abr. Wills and Testaments;  Com. Dig.
Estates by  Devise;  Nels. Abr. h. t.;  Amer. Dig. Wills;  Whart.
Dig. Wills;   Toll.  on Executors;   Off.  Ex.;    Orph.  Legacy;
Touchst, ch.  23 Civil  Code of  Louisiana, B.  3, tit. 2;  Bouv.
Inst.  Index,   h.  t.;    and  the  articles  Devise;    Legacy;

   WINCHESTER MEASURE.  The standard  measure originally  kept at
Winchester, in England.

   WINDOW. An  opening made in the wall of a house to admit light
and air, and to enable those who are in to look out.

   2. The  owner has a right to make as many windows in his house
when not built on the line of his property as he may deem proper,
although by so doing be may destroy the privacy of his neighbors.
Bac. Ab. Actions in general, B.

   3. In cities and towns it is evident that the owner of a house
cannot open  windows in the partition wall without the consent of
the owner  of the  adjoining property,  unless he  possesses  the
right of  having ancient  lights. (q.  v.) The  opening  of  such
windows and  destroying the privacy of the adjoining property, is
not, however,  actionable;   the remedy against such encroachment
is by  obstructing them,  without encroaching  upon the rights of
the party  who opened  them, so  as to prevent a right from being
acquired by twenty years use. 3 Camp. 82.

          Bouvier's Law Dictionary : W1 : Page 26 of 50

   WISCONSIN. The  name of  one of  the new  states of the United
States, of America.

   2. The  constitution of Wisconsin was adopted by a convention,
at Madison, on the first day of February, 1848.

   3. The right of suffrage is vested by the third article of the
constitution, as  follows: Sect.  1. Every male person of the age
of twenty-one  years or  upwards,  belonging  to  either  of  the
following classes,  who shall  have resided in this state for one
year next  preceding any  election, shall  be deemed a qual-ified
elector at  such election.  1st. White  citizens  of  the  United
States. 2d.  White  persons  of  foreign  birth  who  shall  have
declared their  intention to  become citizens, conformably to the
laws of  the United  States on the subject of naturalization. 3d.
Persons of  Indian blood  who have  once been  declared by law of
congress to  be citizens of the United States, any subsequent act
of congress to the contrary notwithstanding.

   4th. Civilized  persons of  Indian descent, not members of any
tribe;   Provided, that the legislature may at any time extend by
law the  right of  suffrage to persons not herein enumerated, but
no such  law shall  be in  force until  the same  shall have been
submitted to  a vote  of the  people at  a general  election, and
approved by a majority of all the votes cast at such election.

   Sect. 2.  No person  under guardianship, non compos mentis, or
insane shall be qualified to vote at any election;  nor shall any
person, convicted  of treason  or felony, be qualified to vote at
any election, unless restored to civil rights.

   Sect. 3.  All votes  shall be given by ballot, except for such
township officers  as may  by law  be directed  or allowed  to be
otherwise chosen.

   Sect. 4.  No person shall be deemed to have lost his residence
in this  state by  reason of  absence on  business of  the United
States or of this state.

   Sect. 5.  No soldier, seaman or marine, in the army or navy of
the United  States, shall  be deemed a resident in this state, in
consequence of being stationed within the same.

   Sect. 6.  Laws may  be passed  excluding  from  the  right  of
suffrage all  persons who  have been,  or  may  be  convicted  of
bribery, or  larceny, or  any infamous crime, and depriving every
person who shall make or become directly or indirectly interested
in any bet or wager depending upon the result of any election, of
the right  to vote  at such election. 4, The fourth article vests
the legislative  power in  a senate  and assembly.  These will be
separately considered,  by taking a view, 1. Of the senate. 2. Of
the assembly.

   5. -  §1. The senate. It will be proper to examine, first, the
qualification of  the senators;   secondly,  the  time  of  their
election;  third, the duration of their office fourth, the number
of senators.

          Bouvier's Law Dictionary : W1 : Page 27 of 50

   6. -  1. The  senators must  have resided  one year within the
state, and  be qualified  electors in the district which they may
be chosen to represent. Sect. 6.

  7. - 2. Senators are elected on the Tuesday following the first
Monday of  November by  the qualified  electors  of  the  several
districts. One half every year.

  8. - 3. They hold their office for two years.

   9. -  4. The  senate shall  consist of a number of members not
more than  one-third, nor  less than  one-fourth of the number of
the members of the assembly. Sect. 2.

  10. - §2. The assembly will be, considered in the same order.

   11. - 1. Members of the assembly must have resided one year in
the state,  and be  qualified electors for the district for which
they may be chosen.

   12. -  2. Members of the assembly are elected at the same time
senators are elected.

  13. - 3. They are elected annually.

   14. -  4. The number of members of the assembly shall never be
less than fifty-four nor more than one hundred.

   15. The  two houses  are invested severally with the following

   Sect. 7.  Each house  shall be  the judge  of  the  elections,
returns and  quali-fications of  its own members;  and a majority
of each  shall constitute  a quorum to do business, but a smaller
number may adjourn from day to day, and may compel the attendance
of absent  members, in  such manner  and under  such penalties as
each house may provide.

    Sect.  8. Each  house may  determine the  rules  of  its  own
proceedings, punish for contempts and disorderly behaviour;  and,
with the  concurrence of  two-thirds of  all the members elected,
expel a  member;   but no  member shall be expelled a second time
for the same cause.

   Sect. 9.  Each house  shall choose  its own  officers, and the
senate   shall    choose   a   temporary   president   when   the
lieutenant-governor shall  not attend  as president, or shall act
as governor.

   Sect. 10.  Each house  shall keep a journal of its proceedings
and publish  the same,  except such parts as require secrecy. The
doors of  each house  shall be  kept open, except when the public
welfare shall  require secrecy.  Neither house shall, without the
consent of the other, adjourn for more than three days.

   16. By  the fifth  article, the executive power is vested in a

          Bouvier's Law Dictionary : W1 : Page 28 of 50

   17. -  Sect. 1.  The executive  power shall  be  vested  in  a
governor, who  shall hold his office for two years;  a lieutenant
governor shall  be elected  at the  same time,  and for  the same

   18. -  Sect. 2.  No person,  except a  citizen of  the  United
States, and  a qua-lified elector of the state, shall be eligible
to the office of governor or lieutenant governor.

   19. -  Sect. 3.  The governor and lieutenant governor shall be
elected by  the qualified electors of the state, at the times and
places of  choosing  members  of  the  legislature.  The  persons
respectively having the highest, number of votes for governor and
lieutenant-governor shall  be elected,  but in  case two  or more
shall have  an equal and the highest number of votes for governor
or lieutenant-governor, the two houses of the legislature, at its
next annual session, shall forthwith, by joint ballot, choose one
of the  persons so  having an  equal and  the higbest  number  of
votes, for  governor  or  lieutenant  governor.  The  returns  of
election for  governor or  lieutenant governor  shall be  made in
such manner as shall be provided by law.

   20. - Sect. 4. The governor shall be commander-in-chief of the
military. and  naval forces  of the state. He shall have power to
convene the legislature on extra-ordinary occasions;  and in case
of invasion, or danger from the preva-lence of contagious disease
at the  seat of  government, he  may convene  them at  any  other
suitable place  within the  state. He  shall communicate  to  the
legislature at  every session,  the condition  of the state;  and
recommend such  matters to them for their consideration as he may
deem expedient. He shall transact all necessary business with the
officers of the government, civil and military. He shall expedite
all such measures as may be resolved upon by the legislature, and
shall take care that the laws be faithfully executed.

    21.  -  Sect.  5.  The  governor  shall  receive  during  his
continuance in  office an annual compensation of one thousand two
hundred and fifty dollars.

   22. -  Sect. 6.  The governor  shall have  the power  to grant
reprieves, commutations  and pardons  after  conviction  for  all
offences, except  treason, and  cases of  impeachment, upon  such
conditions and  with such restrictions and lim-itations as he may
think proper,  subject to  such regulations as may be provided by
law  relative  to  the  manner  of  applying  for  pardons.  Upon
conviction for  treason he  shall have  the power  to suspend the
execution of  the sentence,  until the  case shall be reported to
the legislature  at its  next meeting, when the legislature shall
either pardon,  or commute  the sentence, direct the execution of
the sentence,  or grant  a further  reprieve. He  shall  annually
communicate to the legislature each case of reprieve, commutation
or pardon  granted, stating the name of the convict, the crime of
which he  was convicted,  the sentence and its date, and the date
of the  commutation, pardon  or re-prieve,  with his  reasons for
granting the same.

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   23. -  Sect. 7. In case of the impeachment of the governor, or
his removal from office, death, inability from mental or physical
disease, resignation  or absence  from the  state, the powers and
the   duties    of   the    office   shall   devolve   upon   the
lieutenant-governor for  the  residue  of  the  term,  until  the
governor, absent  or  impeached,  shall  have  returned,  or  the
disability shall  cease. But  when the  governor shall,  with the
consent of  the legislature,  be out of the state in time of war,
at the  head of  the military  force thereof,  he shall  continue
commander-in-chief of the military force of the state.

   24. -  Sect. 8.  The lieutenant-governor shall be president of
the senate, but shall have only a casting vote therein. If during
a vacancy  in the  office of  governor, the  lieutenant  governor
shall be  impeached, displaced,  resign, die,  or from  mental or
physical disease,  become incapable  of performing  the duties of
his office,  or be  absent from  the state the secretary of state
shall act  as governor  until the vacancy shall be filled, or the
disability shall cease.

  25. - Sect. 9. The lieutenant governor shall receive double the
per them  allowance of  members of  the senate,  for every  day's
attendance as  president of  the senate,  and the same mileage as
shall be allowed to members of the legislature.

   26. -  Sect. 10.  Every  bill  which  shall  have  passed  the
legislature, shall,  before it becomes a law, be presented to the
governor;   if he approve, he shall sign it, but if not, he shall
return it  with his  objections to  that house  in which it shall
have originated, who shall enter the objections It large upon the
journal,  and   proceed  to   reconsider  it.   If   after   such
reconsideration, two-thirds.  of the  members present shall agree
to pass the bill, it shall be sent, together with the objections,
to the  other house,  by which it shall likewise be reconsidered,
and if  approved by  two-thirds of  the members present, it shall
become a  law. But  in all  such cases,  the votes of both houses
shall be  determined by,  yeas and  nays, and  the names  of  the
members, voting  for or against the bill, shall be entered on the
journal of  each house  respectively. If  any bill  shall not  be
returned by  the governor  within three  days (Sundays  excepted)
after it  shall have  been presented  to him, the same shall be a
law, unless  the legislature  shall by  their adjournment prevent
its return, in which case it shall not be a Iaw.

  27. The seventh article establishes the judiciary as follows:

   Sect. 1.  The court  for the  trial of  impeachments shall  be
composed of  the senate.  The house of representatives shall have
the power  of impeaching  all civil  officers of  this state, for
corrupt conduct in office, or for crimes and misdemeanors;  but a
majority  of   all  the   members  elected  shall  concur  in  an
impeachment. On the trial of an impeachment against the governor,
the lieutenant  governor shall  not act as a member of the court.
No judicial officer shall exercise his office after he shall have
been impeached  until his  acquittal.  Before  the  trial  of  an
impeachment, the  members, of  the court  shall take  an oath  or

          Bouvier's Law Dictionary : W1 : Page 30 of 50

affirmation  truly   and  impartially   to  try  the  impeachment
according to  the evidence;   and  no person  shall be  convicted
without a  concurrence of  two-thirds  of  the  members  present.
Judgment in  case of impeachment shall not extend further than to
removal from  office, or removal from office and disqualification
to hold  any office  of honor,  profit or  trust under the state;
but the  party impeached shall be liable to indictment, trial and
punishment according to law.

   28. -  Sect. 2.  The judicial  power of this state, both as to
matters of  law and  equity, shall  be vested in a supreme court,
circuit courts,  courts of probate, and in justices of the peace.
The legislature  may also  vest such  jurisdiction  as  shall  be
deemed necessary  in municipal  courts and  shall have  power  to
establish inferior  courts in  the several  counties with limited
civil and  criminal jurisdiction: Provided, that the jurisdiction
which may  be vested  in municipal  courts shall  not exceed,  in
their respective municipalities, that of circuit courts, in their
respective circuits, as prescribed in this constitution: And that
the legislature  shall provide as well for the election of judges
of the  municipal courts, as of the judges of inferior courts, by
the qualified  electors of the respective jurisdictions. The term
of office of the judges of the said municipal and inferior courts
shall not be longer than that of the judges of the circuit court.

   29. -  Sect, 3.  The supreme  court, except in cases otherwise
provided in  this constitution, shall have appellate jurisdiction
only, which  shall be coextensive with the state;  but in no case
removed to  the supreme  court shall  a trial by jury be allowed.
The supreme  court shall  have a  general superintending  control
over all  inferior courts;  it shall have power to issue writs of
habeas corpus, mandamus, injunction, quo warranto certiorari, and
other original  and remedial writs, and to hear and determine the

   30. - Sect. 4. For the term of five years and thereafter until
the legislature  shall  otherwise  provide,  the  judges  of  the
several courts shall be judges of the supreme court, four of whom
shall constitute  a quorum,  and the concurrence of a majority of
the  judges  present  shall  be  necessary  to  a  decision.  The
legislature shall  have power,  if they should think it expedient
and necessary  to provide  by  law  for  the  organization  of  a
separate  supreme   court,  with   the  jurisdiction  and  powers
prescribed in  this constitution, to consist of one chief justice
and two  associate justices,  to  be  elected  by  the  qualified
electors of  the state,  at such  time and  in such manner as the
legislature may  provide. The  separate supreme  court,  when  so
organized,  shall   not  be   changed  or   discontinued  by  the
legislature;   the judges thereof shall be so classified that but
one of them shall go out of office at the same time, and the term
of office  shall be  the same  as provided  for the judges of the
circuit court.  And whenever  the  legislature  may  consider  it
necessary to  establish a separate supreme court, they shall have
power to  reduce the  number of circuit court judges to four, and
subdivide the  judicial circuits,  but  no  such  subdivision  or
reduction shall take effect till after the expiration of the term
of some  one of  the said judges, or till a vacancy occur by some
other means.

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   31. Circuits  are established,  and they may be changed by the

   Sec. 7.  For each circuit there shall be a judge chosen by the
qualified electors  therein, who  shall hold  his  office  as  is
provided in this constitution until his successor shall be chosen
and qualified,  and after  he shall  have been  elected, he shall
reside in  the circuit  for which  he was  elected. One  of  said
judges shall  be designated  as chief  justice, in such manner as
the legislature  shall provide. And the legislature shall, at its
first session, provide by law as well for the election of, as for
classifying, the  judges of the circuit court to be elected under
this constitution,  in such  manner, that  one of the said judges
shall go  out of  office in two years, one in three years, one in
four years,  one  in  five  years  and  one  in  six  years,  and
thereafter the  judge elected  to fill the office, shall bold the
same for six years.

  32. - 8. The circuit courts shall have original jurisdiction in
all matters civil and criminal within this state, not excepted in
this constitution,  and not  hereafter  prohibited  by  law,  and
appellate jurisdiction  from all  inferior courts  and tribunals,
and a supervisory control over the same. They shall also have the
power to  issue writs of habeas corpus, mandamus, injunction, quo
warranto, certiorari, and all other writs necessary to carry into
effect their  orders, judgments  and decrees,  and  give  them  a
general control over inferior courts and jurisdictions.

   33. -  Sect. 9. When a vacancy shall happen in the office of a
judge of  the supreme  or circuit  court, such  vacancy shall  be
filled by  an appointment  of the  governor, which shall continue
until a  successor is  elected and  qualified;  and when elected,
such successor shall hold his office the residue of the unexpired
term. There  shall be  no election  for a  judge or judges at any
general election  for state or county officers, nor within thirty
days either before or after such election.

   34. -  Sect. 10. Each of the judges of the supreme and circuit
courts shall  receive a  salary, payable  quarterly, of  not less
than one  thousand five  hundred dollars  annually;   they  shall
receive no  fees of  office  or  other  compensation  than  their
salaries;   they shall  hold no  office of public trust, except a
judicial office,  during the term for which they are respectively
elected, and all votes for either of them for any office except a
judicial office, given by the legislature or the people, shall be
void. No  person shall  be eligible  to the  office of  judge who
shall not  at the time of his election be a citizen of the United
States, and  have attained the age of twenty-five years, and be a
qualified elector  within the  jurisdiction for  which he  may be

   35. - Sect. 11. The supreme court shall hold at least one term
annually at  the seat of government of the state at such times as
shall be  provided by  law, and  the legislature  may provide for
holding other  terms, and  at other  places when they may deem it
necessary. A  circuit court  shall be held at least twice a year,
in each  county of  this state,  organized for judicial purposes.
The judges  of the  circuit court may hold courts for each other,
and shall do so when required by law.

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   WISTA. Among  the Saxons,  this was  a measure  of land;    it
contained a half hide, or sixty acres.

  TO WIT. To know, that is to say, namely. See Scilicet.

   WITH  STRONG  HAND,  pleading.  This  is  a  technical  phrase
indispensable in describing a forcible entry in an indictment. No
other word  or circumlocution  will answer the same purpose. 8 T.
R. 357.

   WITHDRAWING A  JUROR, practice.  An agreement made between the
parties in a suit to require one of the twelve juror's impanneled
to try a cause to leave the jury box;  the act of leaving the box
by such a juror is also called the withdrawing a juror.

   2. This  arrangement usually takes place at the recommendation
of the  judge, when  it is  obviously improper  the  case  should
proceed any further.

   3. The  effect of  withdrawing a  juror puts  an end  to  that
particular trial,  and each party must pay his own costs. 3 T. R.
657;  2 Dowl. R. 721;  S. C. 1 Crom. M. & R. 64.

  4. But the plaintiff may bring a new suit for the same cause of
an action.  R. &  M. 402;   S.  C. 21 E. C. L. R. 472;  3 Barn. &
Adolph. 349;  S. C. 23 E. C. L. R. 91. See 3 Chit. Pr. 916.

   WITHERNAM, practice.  The name  of a  writ which issues on the
return of  elon-gata to  an alias or pluries writ of replevin, by
which the  sheriff is commanded to take the defendant's own goods
which may be found in his bailiwick, and keep them safely, not to
deliver them  to the  plaintiff until  such time as the defendant
chooses to  submit himself, and allow the distress, and the whole
of it,  to be reprevied, and he is thereby further commanded that
he do  return to  the court in what manner he shall have executed
the writ.  Hamm. N.  P. 453;   2 Inst. 140;  F. N. B. 68, 69;  19
Vin. Ab. 7;  7 Com. Dig. 674;  Grotius, 3, 2, 4, n. 1.

   WITHOUT, pleading.  This word  is adopted in formal traverses,
and is  a negative  signifying "and  not  for;"  accordingly  the
language of  the elder  entries sometimes is, It et nemy pur tiel
cause," &c. Hamm. N. P. 120.

  WITHOUT DAY. This signifies that the cause or thing to which it
relates is  indefinitely adjourned;   as when a case is adjourned
without day,  it is  not again  to be  inquired into;   when  the
legislature adjourn  without day they are not to meet again. This
is usually expressed in Latin, sine die.

   WITHOUT IMPEACHMENT OF WASTE. When a tenant for life holds the
land without  impeachment of waste, he is of course dispunishable
for waste  whether wilful or otherwise. But still this right must
not be  wantonly abused  so as to destroy the estate, and he will
be enjoined from committing malicious waste. Dane's Ab. c. 78, a.
14, §7;  Bac. Ab. Waste, N;  2 Eq. Cas. Ab. tit. Waste, A. pl, 8;
2 Bouv. Inst. n. 2402. See Impeachment of Waste and Waste.

          Bouvier's Law Dictionary : W1 : Page 33 of 50

   WITHOUT RECOURSE. Vide Sans Recours and Indorsement;  Chit. on
Bills, 179;   14  S. & R. 325;  3 Cranch, 193;  7 Cranch, 159;  1
Cowen, 538;  12 Mass. 172;  6 Shipl. R. 354.

   WITHOUT RESERVE, contracts. These words are frequently used in
conditions of  sale at public auction, that the property offered,
or to be offered for sale, will be sold without reserve.

  2. When a property is advertised to be sold without reserve, if
a puffer  be employed  to bid,  and actually bid at the sale, the
courts will  not enforce  a contract  against a  purchaser,  into
which he  may have  been drawn  by the  vendor's want of faith. 5
Madd. R. 34. Vide Puffer.

  WITHOUT THIS, THAT, pleading. These are technical words used in
a traverse, (q. v.) for the purpose of denying a material fact in
the preceding  pleadings, whether declaration, plea, replication,
&c. In  Latin it  is called  absque hoc.  (q. v.) Lawes on Pl. in
Civ. Act. 119;  Com. Dig. Pleader, G 1;  Summary of Pleading, 75;
1 Saund. 103, n.;  Ld. Raym. 641;  1 Burr. 320;  1 Chit. Pl. 576,
note a.

   WITNESS. One  who, being  sworn or affirmed, according to law,
deposes as to his knowledge of facts in issue between the parties
in a cause.

   2. In another sense by witness is understood one who is called
upon to  be present at a transaction, as a wedding, or the making
of a  will. When  a person  signs his name to an instrument, as a
deed, a bond, and the like, to signify that the same was executed
in his presence, he is called an attesting witness.

   3. The  testimony of  witnesses can never have the effect of a
demonstration, because it is not impossible, indeed it frequently
happens, that  they are  mistaken, or wish themselves to deceive.
There can,  therefore,  result  no  other  certainty  from  their
testimony than  what arises from analogy. When in the calm of the
passions, we  listen only  to the voice of reason and the impulse
of nature  we feel  in ourselves a great repugnance to betray the
truth, to  the pre-judice  of another,  and we have observes that
honest, intelligent  and disinterested  persons never  combine to
deceive others by a falsehood. We conclude then, by analogy, with
a sort  of moral  certainty, that  a  fact  attested  by  several
witnesses, worthy  of credit,  is true.  This proof  derives  its
whole force  from a  double presumption. We presume, in the first
place, on the good sense of the witnesses that they have not been
mistaken;   and, secondly,  we presume on their probity that they
wish not  to deceive.  To be  certain that  they  have  not  been
deceived,  and  that  they  do  not  wish  to  mislead,  we  must
ascertain, as  far as possible, the nature and the quality of the
facts proved;   the  quality and  the person of the witness;  and
the testimony  itself, by  comparing it  with the  deposition  of
other witnesses, or with known facts. Vide Circumstances.

          Bouvier's Law Dictionary : W1 : Page 34 of 50

  4. It is proper to consider, 1st. The character of the witness.
2d. The  quality of  the witness.  3d. The  number  of  witnesses
required by law.

   5. -  1. When  we are  called upon to rely on the testimony of
another in  order to form a judgment as to certain facts, we must
be certain, 1st. That he knows the facts in question, and that he
is not mistaken;  and, 2d. That he is disposed to tell the truth,
and has  no desire  to impose on those who are to form a judgment
on his  testimony. The confidence therefore, which we give to the
witness must  be considered,  in the first place, by his capacity
or his  organization, and  in the next, by the interest or motive
which he  has to tell or not to tell the truth. When the facts to
which the  witness testifies  agree with  the circumstances which
are known to exist, he becomes much more credible than when there
is a  contradiction in  this  respect.  It  is  true  that  until
impeached one  witness is as good as another;  but when a witness
is impeached,  although  he  remains  competent,  he  is  not  as
credible   as    before.   Vide   Circumstances;      Competency;

   6. -  11. As  to the quality of the witnesses, it is a general
rule that all persons way be witnesses. To this there are various
exceptions.  A  witness  may  be  incompetent,  1.  For  want  of
understanding.  2.   On  account  of  interest.  3.  Because  his
admission is  contrary to public policy. 4. For want of religious
principles;  and, 5. On account of infamy.

  7. - §1. Persons who want understanding, it is clear, cannot be
witnesses, because  they are  to depose to facts which they know;
and if  they have  no understanding,  they cannot know the facts.
There are two classes of persons of this kind.

   8. -  1. Infants. A child of any age capable of distinguishing
between good  and evil  may be examined as a witness;  and in all
cases, the examination must be under oath or affirmation. 1 Phil.
Ev. 19;  1 Const. R. 354. This appears to be the rule in England;
though formerly  it was  held  by  some  judges  that  it  was  a
presumption of  law that  the child  was incompetent  when he was
under seven  years of  age. Gilb.  Ev. 144;   1  East, R. 422;  1
East, P. C. 443;  1 Leach, 199. When the child is under fourteen,
he is  presumed incapable  until capacity is shown;  2 Tenn. Rep.
80;   19 Mass. R. 225;  and see 18 John. R. 105;  when he is over
fourteen he may be sworn without a previous examination. 2 South.
R. 589.

   9. -  2. Idiots and lunatics. An idiot cannot be examined as a
witness, but  a lunatic, (q. v.) during a lucid interval, (q. v.)
may be  examined. A  person in  a state of intoxication cannot be
admitted as  a witness. 15 Serg. & Rawle, 235. See Ray, Med. Jur.
c. 22, §300 to 311.

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   10. -  §2. Interest  in the  event of  the suit  excludes  the
witness from examination, unless under certain circumstances. See
article Interest.  The exceptions are the cases of informers, (q.
v.) when  the statute makes them witnes-ses, although they may be
entitled to  a penalty;   1 Phil. Ev. 96;  persons enti-tled to a
reward, (q.  v.)  are  sometimes  competent;    agents  are  also
admitted in order to prove a contract made by them on the part of
the principal,  1 Phil.  Ev. 99;   and  see 1  John. Cas. 408;  2
John. Cas.  60;   2 John.  R. 189;  13 Mass. R. 380;  11 Mass. R.
60;   2 Marsh. In 706 b;  1 Dall. R. 7;  1 Caines' R. 167. A mere
trustee may  be examined  by either  party. 1  Clarke, R. 281. An
interested witness  competency may  be restored  by a  release. 1
Phil. Ev.  101. Vide,  generally, 1 Day's R. 266, 269;  1 Caines'
R. 276;   8 John. R. 518;  4 Mass. R. 488;  3 John. Cas. 82, 269;
1 Hayw.  2;   5 Halst.  R. 297;   6 Binn. R. 319;  4 Binn. 83;  1
Dana's R.  181;   1 Taylor's  R. 55;  Bac. Ab. Evidence B;  Bouv.
Inst. Index, h. t.

   11. -  §3. There  are some  persons who  cannot be examined as
witnesses, because  it is  inconsistent with  public policy  that
they should testify against certain persons;  these are,

   12. -  1. Husband and wife. The reason for excluding them from
giving evidence,  either for  or against  each other,  is founded
partly on  their identity  of interest,  partly on a principle of
public policy  which deems it necessary to guard the security and
confidence of  private life,  even at  the risk  of an occasional
failure of  justice. They  cannot be  witnesses  for  each  other
because their  interests are  absolutely the  same;  they are not
witnesses against each other, because it is against the policy of
marriage. Co.  Litt. 6,  b;  2 T. R. 265, 269;  6 Binn. 488. This
is the rule when either is a party to a civil suit or action.

   13. But where one of them, not being a party, is interested in
the result,  there is  a distinction  between the giving evidence
for and  against the other. It is an invariable rule that neither
of them  is a  witness for  the other  who is  interested in  the
result, and  that  where  the  husband  is  disqualified  by  his
interest, the  wife is also incompetent. 1 Ld. Raym. 744;  2 Str.
1095;  1 P. Wms. 610.

   14. On  the other  hand, where  the interest  of the  husband,
consisting in  a civil  liability, would  not have  protected him
from examination,  it seems  that  the  wife  must  also  answer,
although the  effect may  be to subject her husband to an action.
This case  differs very  materially from  those where the husband
himself could  not have  been examined,  either because  he was a
party or  because he  would criminate  himself. The party to whom
the testimony  of the  wife is essential, has a legal interest in
her evidence;   and  as he might insist on examining the husband,
it would,  it seems,  be straining  the rule of policy too far to
deprive him  of the benefit of the wife's testimony. In an action
for goods sold and delivered, it has been held that the wife of a
third person  is competent  to prove that the credit was given to
her husband.  1 Str.  504;   B. N. P. 287. See 1 H. & M. 154;  11
Mass. 286;  1 Har. & J. 478;  1 Tayl. 9;  6 Binn. 488;  1 Yeates;
390, 534.

   15. When  neither of  them is  either a party to the suit, nor
interested in  the general  result, the  husband or  wife is,  it
seems, competent  to prove  any fact,  provided the evidence does
not directly  criminate, or tend to criminate, the other. 2 T. R.

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   16. It  has been held in Pennsylvania that the deposition of a
wife on  her death-bed,  charging her husband with murdering her,
was good  evidence against  him, on  his trial for murder. Addis.
332. On an indictment for a conspiracy in inveigling a young girl
from her mother's house, and she being intoxicated, procuring the
marriage ceremony  to be  recited between  her  and  one  of  the
de-fendants, the  girl is a competent witness to prove the facts.
2 Yeates, 114.

   17. See,  as to  the competency of a wife de facto, but not de
jure, Stark. Ev, pt. 4, p. 711. And on an indictment for forcible
entry, the  wife of  the prosecutor  was examined as a witness to
prove the force, but only the force. 1 Dall. 68.

   18. 2.  Attorneys. They  cannot be examined as witnesses as to
confidential communications  which they  have received from their
clients,  made   while  the   relation  of  attorney  and  client
subsisted. 3  Johns. Cas.  198. See  3 Yeates,  4. Communications
thus protected  must  have  been  made  to  him  as  instructions
ne-cessary for  conducting the  cause, and  not any extraneous or
impertinent matter;  3 Johns. Cas. 198;  they must have been made
to him  in the character of a counsel and not as a friend merely;
1 Caines'  R. 15  7;  they must have been made while the relation
of counsel  and client existed, and not after. 13 John. Rep. 492.
An attorney  may be  examined as  to the  existence  of  a  paper
entrusted to  him by his client, and as to the fact that it is in
his possession,  but he  cannot be  compelled to  produce it,  or
disclose its date or contents. 17 Johns. R. 335. See 18 Johns. R.
330. He  may also  be called  to  prove  a  collateral  fact  not
entrusted to  him by  his client;   as  to  prove.  his  client's
handwriting. 19  Johns. R.  134: 3  Yeates, 4.  He is a competent
witness for  his client,  although his  judgment fee depends upon
his success;  1 Dall. 241;  or he expects to receive a larger fee
from his  client if  the latter  succeeds.  4  S.  &  R.  82.  In
Louisiana, the reverse has been decided. It is there held that an
attorney cannot  become a  witness for  his client  in a cause in
which he was employed, by renouncing his fee, and having his name
struck off  from the  record, in  that case.  3 N.  S.  88.  Vide
Confidential Communications.

   19. -  3. Confessors.  In New  York it  has been  held that  a
confessor could not be compelled to disclose secrets which he had
received in  auricular confession.  City Hall  Rec.  80  n.  Vide
Confessor;  Confidential Communications.

   20. -  4. Jurors. A juror is not competent to prove his own or
the conduct  of his  fellow jurors to impeach a verdict they have
rendered. 5  Conn. R.  348. See  Coxe, R.  166, and article Grand
Jury. And  a judge in a cause which is on trial before him cannot
be a  witness, as  he cannot decide on his own competency, nor on
the weight  of his  own testimony, compared with that of another;
2 Mart. R. N. S. 312;  1 Greenl. Ev. §364.

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  21. - 5. Slaves. It is said that a slave could not be a witness
at common  law because  of the unbounded influence his master had
over him.  4 Dall.  R. 145,  note 1;   but  see  1  St.  Tr.  113
Macnally's Ev.  156. By statutory provisions in the slave states,
a slave  is generally  held incompetent  in actions between white
persons. See  7 Monr.  R. 91;  4 Ham. R. 353;  5 Litt. R. 171;  3
Harr. & John. 97;  1 McCord, R. 430. In New York a free black man
is competent  to prove  facts happening  while he  was a slave. 1
John. R. 508;  see 10 John. R. 132.

   22. - 6. A party to a negotiable instrument, is not allowed to
give evidence  to invalidate  it. 1  T. R.  300. But  the rule is
confined to  negotiable instruments. 1 Bl. R. 365. This rule does
not appear to be very firmly established in England. In the state
courts of  some of the United States it has been adopted, and may
now be  considered to  be law. 2 Dall. R. 194;  ld. 196;  2 Binn.
R. 154;   2 Dall. R. 242;  1 Cain. R. 258, 267;  2 Johns. R. 165;
Id. 258;  1 John. R. 572;  3 Mass R. 559;  Id. 565;  Id. 27;  Id.
31;   1 Day,  R. 17;   6  Pet. 51;  8 Pet. 12;  5 Greenl. 374;  1
Bailey, 479;  2 Dall. 194. But flee 16 John. 70;  8 Wend. 90;  20
John. 285.  The witness  may however testify to subsequent facts,
not tending  to show  that the instrument was originally invalid.
Peake's N.  P. C.  6. See  2 Wash.  63;  1 Hen. & Munf. 165, 166,
175;  1 Cranch, R. 194.

   23. - §4. When the witness has no religious principles to bind
his conscience,  the law rejects his testimony;  but there is not
such defect of religious principles, when the witness believes in
the existence  of a  God, who will reward or punish in this world
or that  which is  to come.  Willes' R.  550.  Vide  the  article
Infidel where  the subject  is more  fully examined  and Atheist;
Future state.

   24. -  §5. Infamy  (q. v.)  is  a  disqualification  while  it

   25. - III. As to the number of witnesses, it is a general rule
that one  witness is  sufficient to establish a fact, but to this
there are exceptions, both in civil and criminal cases.

   26. - 1. In civil cases. The laws of perhaps all the states of
the Union  require two  witnesses and  some require even more, to
prove the execution of a last will and testament devising lands.

   27. -  2. In criminal cages, there are several instances where
two witnesses  at least  are required.  The constitution  of  the
United States,  art. 3,  s. 3,  provides that  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. In cases of
perjury there  must evidently  be two  witnesses, or one witness,
and such circumstances as have the effect of one witness;  for if
there be  but one  witness, then  there is oath against oath, and
therefore uncertainty.

   28. A  witness may  be compelled to attend court. In the first
place a subpoena requiring his attendance must be served upon him
personally, and  on his  neglect to  attend,  an  attachment  for
contempt will be issued. See, generally, Bouv. Inst. Index, h. t.

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   WITNESS, AGED.  It has  been laid  down as  a rule  that to be
considered an  aged witness,  a person  must be  at least seventy
years old. See Aged Witness.

   WITNESS, GOING.  A going  witness is one who is about to leave
the jurisdiction  of the court in which a cause is depending. See
Going Witness.

   WITNESS INSTRUMENTARY,  Scotch law. He who has attested a deed
or other writing.

   2. When  witnesses attest  a deed without knowing the grantor,
and seeing  him subscribe,  or bearing  him own his subscription,
and the  deed happens  to be  forged, the  witnesses are declared
accessory to forgery. Ersk. Pr. L. Scot, 4, 4, 37;  6 Hill, N. Y.
Rep. 303.

  WOMEN, persons. In its most enlarged sense, this word signifies
all the  females of  the human species;  but in a more restricted
sense, it  means all  such females who have arrived at the age of
puberty.  Mulieris   appellatione   etiam   virgo   viri   potens
continetur. Dig. 50, 16, 13.

   2. Women  are either single or married. 1. Single or unmarried
women have all the civil rights of men;  they may therefore enter
into contracts  or engagements;  sue and be sued;  be trustees or
guardians, they may be witnesses, and may for that purpose attest
all papers;   but  they  are  generally,  not  possessed  of  any
political power;  hence they cannot be elected representatives of
the people, nor be appointed to the offices of judge, attorney at
law, sheriff,  constable, or  any other  office, unless expressly
authorized by  law;   instances occur  of their  being  appointed
post-mistresses nor can they vote at any election. Wooddes. Lect.
31;   4 Inst.  5;  but see Callis, Sew. 252;  2 Inst 34;  4 Inst.
311, marg.

   3. -  2. The  existence of  a married woman being merged, by a
fiction of  law, in  the being  of her  husband, she  is rendered
incapable, during  the coverture,  of entering into any contract,
or of suing or being sued, except she be joined with her husband;
and she  labors under  all the  incapacities above  mentioned, to
which  single  women  are  subject.  Vide  Abortion;    Contract;
Divorce;   Feminine;    Foetus;    Gender;    Incapacity;    Man;
Marriage;   Masculine;  Mother;  Necessaries;  Parties to Actions
Parties to Contracts;  Pregnancy;  Wife.

   WOODGELD, old  Eng. law.  To be free from the payment of money
for taking  of wood  in any  forest. Co. Litt. 233 a. The same as
Pudzeld. (q. v.)

   WOODS, A  piece of  land on which forest trees in great number
naturally grow.  According to  Lord Coke,  a grant  to another of
omnes boscos  suos, all  his woods,  will pass  not only  all his
trees, but the land on which they grow. Co. Litt. 4 b.

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   WORD, construction.  One or  more syllables  which when united
convey an idea a single part of speech.

   2. Words are to be understood in a proper or figurative sense,
and they  are used  both ways  in law.  They are  also used  in a
technical sense.  It is  a general  rule that contracts and wills
shall be construed as the parties understood them;  every person,
bowever, is  presumed to  understand the  force of  the words  be
uses, and  therefore technical  words must  be taken according to
their legal import, even iii wills, unlesh the testator manifests
a clear intention to the contrary. 1 Bro. C. C. 33;  3 Bro. C. C.
234;  5 Ves. 401 8 Ves. 306.

   3. Every  one is  required to  use words in the sense they are
generally understood,  for, as speech has been given to man to be
a sign  of his thoughts, for the purpose of communicating them to
others, he  is bound  in treating with them, to use such words or
signs in  the sense sanctioned by usage, that is, in the sense in
which they  themselves understand them, or else he deceives them.
Heinnec. Praelect.  in Puffendorff,  lib. 1, cap. 17, §2 Heinnec.
de Jure Nat. lib. 1, §197;  Wolff, lust. Jur. Nat. §7981.

   4. Formerly, indeed, in cases of slander, the defamatory words
received  the   mildest  interpretation   of  which   they   were
susceptible, and  some ludicrous  decisions were the consequence.
It was  gravely decided, that to say of a merchant, "he is a base
broken rascal,  has broken  twice, and  I will  make him  break a
third time," that no action could be maintained, because it might
be intended  that he had a hernia: ne poet dar porter action, car
poet estre intend de burstness de belly. Latch, 104. But now they
are understood  in their  usual signification. Comb. 37;  Ham. N.
P.  282.   Vide  Bouv.   Inst.  Index,   h.  t.;    Construction;

   WORK AND LABOR. In actions of assumpsit, it is usual to put in
a count, commonly called a common count, for work and labor done,
and materials  furnished by the plaintiff for the defendant;  and
when the  work  was  not  done  under  a  special  contract,  the
plaintiff will  be entitled  to recover  on the  common count for
work, labor,  and materials.  4 Tyr.  R. 43;  2 C. & M. 214. Vide
Assumpsit;  Quantum meruit.

   WORKHOUSE. A prison where prisoners are kept in employment;  a
penitentiary. A  house provided where the poor are taken care of,
and kept in employment.

   WORKING  DAYS.  In  settling  laydays,  (q.  v.)  or  days  of
demurrage, (q.  v.) sometimes the contract specifies working days
in  the   computation,  Sundays  and  custom-house  holidays  are
excluded. 1 Bell's Com. 577, 5th ed.

  WORKMAN. One who labors, one who is employed to do business for

   2. The obligations of a workman are to perform the work he has
undertaken to  do;   to do  it in  proper time;  to do it well to
employ the things furnished him according to his contract.

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   3. His  rights, are to be paid what his work is worth, or what
it deserves;   to  have all the facilities which the employer can
give him for doing his work. 1 Bouv. Just. n. 1000 to 1006.

  WORSHIP. The honor and homage rendered to the Creator.

   2. In  the United  States, this  is free,  every one  being at
liberty  to   worship  God  according  to  the  dictates  of  his
conscience. Vide Christianity;  Religious test.

   WORSHIP, Eng.  law. A  title  or  addition  given  to  certain
persons. 2 Inst. 666;  Bac. Ab. Misnomer, A 2.

   WORTHIEST OF  BLOOD. All  expression  to  designate  that,  in
descent, the  sons are to be preferred to daughters, which is the
law of  England. See  some singular  reasons given  for this,  in
Plowd. 305.

   WOUND, med. jur. This term, in legal medicine, comprehends all
lesions of  the body,  and in this it differs from the meaning of
the word  when used  in surgery.  The latter  only  refers  to  a
solution of  continuity, while  the  former  comprises  not  only
these, but  also every  other kind  of accident, such as bruises,
contusions,  fractures,  dislocations,  and  the  like.  Cooper's
Surgical Dict.  h. t.;   Dunglison's  Med. Dict.  h.  t.;    vide
Dictionnaire des Sciences Medicales, mot Blessures 3 Fodere, Med.
Leg. §687-811.

   2. Under  the statute  9 Geo. IV. c. 21, sect. 12, it has been
held in  England, that  to make a wound, in criminal cases, there
must be  "an injury to the person by which the skin is broken." 6
C. &  P. 684;   S.  C. 19  Engl. C. L. Rep. 526. Vide Beck's Med.
Jur. c.  15;   Ryan's Med.  Jur. Index,  h. t.;  Roscoe's Cr. Ev.
652;   19 Engl.  Com. L.  Rep. 425,  430, 526,  529;   Dane's Ab.
Index, h.  t.;  1 Moody's Cr. Cas. 278;  4 C. & P. 381;  S. C. 19
E. C.  L. R.  430;   4 C. & P. 446;  S. C. 19 E. C. L. R. 466;  1
Moody's Cr.  C. 318;   4  C. & P. 558;  S. C. 19 E. C. L. R. 526;
Carr. Cr.  L. 239;   Guy, Med. Jur. ch. 9, p. 446;  Merl. Repert.
mot Blessure.

   3. When  a person  is found  dead from wounds, it is proper to
inquire whether  they are  the result  of suicide,  accident,  or
homicide. In  making  the  examination,  the  greatest  attention
should be bestowed on all the circumstances. On this subject some
general directions  have been  given under the article Death. The
reader is  referred to 2 Beck's Med. Jur. 68 to 93. As to, wounds
on the living body, see Id. 188.

   WRECK, mar.  law. A wreck (called in law Latin, wreccum maris,
and in law French, wrec de mer,) signifies such goods, as after a
shipwreck, are  cast upon  land by the sea, and left there within
some county,  so as  not to  belong to  the jurisdiction  of  the
admiralty, but  to the  common law. 2 Inst. 167;  Bract. 1. 3, c.
3;  Mirror, c. 1, s. 13, and c. 3.

   2. The term `wreck of the sea' includes, 1. Goods found at low
water, between high and low water mark;  and 2. Goods between the
same limits, partly resting on the ground, but still moved by the
water. 3 Hagg. Adm. R. 257.

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   3. When  goods have  touched the  ground, and  have again been
floated by the tide, and are within low water mark;  whether they
are to  be considered  wreck will  depend upon  the circumstances
whether they  were, seized by a person wading, or swimming, or in
a boat.  3 Hagg.  Adm. R.  294. But  if a human being, or even an
animal, as  a dog,  cat, hawk, &c. escape alive from the ship, or
if there  be any  marks upon the goods by which they may be known
again, they  are not,  at common  law, considered  as wrecked.  5
Burr. 2738-9;  2 Chit. Com. Law, c. 6, p. 102;  2 Kent, Com. 292;
22 Vin. Ab. 535;  1 Bro. Civ. Law, 238;  Park, Ins. Index, h. t.;
Molloy, Jur. Mar. Index, h. t.

   4. The  act of congress of March 1, 1823, provides, §21, That,
before any  goods, wares  or merchandise, which may be taken from
any wreck,  shall be  admitted to  an entry,  the same  shall  be
appraised in  the manner  prescribed in  the sixteenth section of
this act  and the  same proceedings shall be ordered and executed
in all  cases where  a reduction  of duties  shall be  claimed on
account of  damage which  any goods, wares, or merchandise, shall
have sustained in the course of the voyage and in all cases where
the owner,  importer, consignee,  or agent, shall be dissatisfied
with such  appraisement, he  shall be  entitled to the privileges
provided in the eighteenth section of this act. Vide Naufrage.

   WRIT, practice.  A mandatory  precept issued by the authority,
and in the name of the sovereign or the state, for the purpose of
compelling the defendant to do something therein mentioned.

  2. It is issued by a court or other competent jurisdiction, and
is return-able  to the same. It is to be under seal and tested by
the proper  officer, and  is directed  to the  sheriff, or  other
officer lawfully  authorized  to  execute  the  same.  Writs  are
divided into,  1. Original. 2. Of mesne process. 3. Of execution.
Vide 3  Bl. Com.  273;  1 Tidd, Pr. 93;  Gould on Pl. c. 2, s. 1.
There are  several kinds  of writs,  some of  which are mentioned

   WRIT DE  BONO ET MALO. An ancient writ which was issued in the
case of each prisoner, instead of a general commission of general
jail delivery  for all the prisoners. This writ has not been used
for a very long time, and is obsolete. 4 Bl. Com. 210.

  WRIT OF CONSPIRACY. The name of an ancient writ, now superseded
by the  more convenient  remedy of  an action  on the case, which
might have  been sued  against parties guilty of a conspiracy. F.
N. B. 260. See Conspiracy.

  WRIT OF DECEIT. The name of a writ which lies where one man has
done anything  in the  name of  another, by  which the  latter is
damnified and deceived. F. N. B. 217.

  2. The modern practice is to sue a writ of trespass on the case
to remedy the injury. See Deceit.

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   WRIT DE EJECTIONE FIRMAE. A writ of ejectment. Vide Ejectment,
and 3 Bl. Com. 199.

   WRIT DE  HAERETICO COMBURENDO,  Engl. law.  The name of a writ
formerly issued by the secular courts, when a man was turned over
to them  by  the  ecclesiastical  tribunals,  after  having  been
condemned for heresy.

   2. It  was founded  on the  statute 2  Hen. IV. c. 15;  it was
first used,  A. D.  1401, and as late as the year 1611. By virtue
of this  writ, the  unhappy man  against whom  it was issued, was
burned to death. See 12 Co. R. 92.

   WRIT DE  HOMINE RELEGIANDO,  practice. A  writ which  lies  to
replevy a man out of prison, or out of the custody of any private
person, in  the same manner in which cattle taken in distress may
be replevied,  upon giving  security to  the sheriff that the man
shall be forthcoming to answer to any charge against him.

   2. This  writ  is  almost  entirely  superseded  by  the  more
effectual writ  of habeas  corpus. 3  Bl. Com.  129;   Com.  Dig.
Imprisonment, L  4;   Lord Raym.  613;  F. N. B. 66;  1 Atk. 633;
14 Vin. Ab. 305;  Dane's Ab. h. t.;  7 Com. Dig. 271;  5 Binn. R.
304;  1 John. R. 23;  14 John. R. 263 2 Cain. C. Err. 322.

   WRIT DE  ODIO ET  ATIA,  Engl.  law.  This  writ  is  probably
obsolete, and  superseded by  the writ  of habeas  corpus. It was
anciently directed  to the  sheriff, commanding  him  to  inquire
whether a  prisoner charged  with murder  was committed upon just
cause or  suspicion, or merely propter odium et atiam, for hatred
and ill-will;    and,  if  upon  the  inquisition  due  cause  of
suspicion did  not appear,  then  there issued  another writ  for
the  sheriff  to admit him  to bail,  3 Bl. Com. 128;   Com. Dig.
Imprisonment, L 3.

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   WRIT OF  COVENANTS, practice.  A writ which lies where a party
claims damage  for breach  of covenant,  i. e. of a promise under

   WRIT OF  DEBT, practice.  A writ  which lies  where the  party
claims the re-covery of a debt, i. e. a liquidated or certain sum
of money  alleged to  be due  to him.  This is debt in the debet,
which is  the principal  and only  common form.  There is another
species mentioned  in the  books, called the debt in the detinet,
which lies  for the  specific recovery of goods, under a contract
to deliver them. 1 Chit. Pl. 101.

   WRIT OF  DETINUE, practice.  A writ  which lies  where a party
claims the spe-cific recovery of goods and chattels, or deeds and
writings detained  from him.  This is  seldom used: trover is the
more frequent remedy, in cases where it may be brought.

  WRIT OF DOWER, practice. A writ which lies for a widow ciaiming
the specific  recovery of  her dower,  no part  having  been  yet
assigned to  her. It is usually called a writ of dower unde nihil
habet. 3 Chit. Pl. 393;  Booth, 166.

   2. There  is another species, called a writ of right of dower,
which applies to the particular case where the widow has received
a part of her dower from the tenant himself, and of land lying in
the same  town in  which she  claims  the  residue.  Booth,  166;
Glanv. lib.  6, c.  4, 5.  This latter  writ is  seldom  used  in

   WRIT OF EJECTMENT, practice. The name of a process issued by a
party claiming  land or  other real  estate, against  one who  is
alleged to be unlawfully in possession. Vide Ejectment.

   WRIT OF  ENTRY, practice.  A writ  requiring  the  sheriff  to
command the  tenant of  land that  he render to the demandant the
premises in question, or to appear in court on such a day to show
cause why  he hath  not done  so. Co. Litt. 238. See 2 Pick. 473;
10 Pick. 359;  14 Mass. 20;  15 Mass. 305;  5 N. Hamp. R. 450;  6
N. Hamp. R. 555;  7 Pick. 36.

   WRIT OF  ERROR, practice.  A writ  issued out  of a  court  of
competent jurisdiction,  directed to  the judge  of  a  court  of
record in  which final  judgment has  been given,  and commanding
them, in  some cases,  themselves to  examine the  re-cord;    in
others to  send it  to another  court of  appellate jurisdiction,
therein named, to be examined in order that some alleged error in
the proceeding  may be  corrected. Steph. Pl. 138;  2 Saund. 100,
n. 1;  Bac. Ab. Error, in pr.

   2. The  first is  called a writ of error coram nobis or vobis.
When an  issue in  fact has been decided, there is not in general
any appeal  except by  motion for  a new  trial;   and although a
matter. of  fact should  exist which  was not  brought  into  the

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issue, as  for example,  if the  defendant neglected  to Plead  a
release, which  he might  have pleaded,  this is  no error in the
proceedings, though  a mistake  of the defendant. Steph. Pl. 139.
But there are some facts which affect the validity and regularity
of the proceeding itself, and to remedy these errors the party in
interest may  sue out the writ of error coram vobis. The death of
one of  the parties  at  the  commencement  of  the  suit;    the
appearance of an infant in a personal action, by an attorney, and
not  by  guardian;    the  coverture  of  either  party,  at  the
commencement of  the suit,  when her  husband is  not joined with
her, are  instances of this kind. 1 Saund. 101;  1 Arch. Pr. 212;
2 Tidd's Pr. 1033;  Steph. Pl. 140 1 Browne's Rep. 75.

   3. The second species is called, generally, writ of error, and
is the  more common. Its object is to review and correct an error
of the  law committed in the proceedings, which is not amendable,
or cured  at common  law, or by some of the statutes of amendment
or jeofail.  Vide, generally, Tidd's Pr. ob. 43;  Graham's Pr. B.
4, o.  1;  Bac. Ab. Error;  1 Vern. 169;  Yelv. 76;  1 Salk. 322;
2 Saund.  46, n. 6, and 101, n. 1;  3 Bl. Com. 405;  Serg. Const.
Law, ch. 5.

   4. In  the French  law the  demande en  cassation is  somewhat
similar to  our proceeding  in error;   according  to some of the
best writers  on French  law, it is considered as a new suit, and
it is  less an  action  between  the  original  parties,  than  a
question between  the judgment  and the law. It is not the action
which is  to be  judged,  but  the  judgment;    "la  demande  en
cassation est un nouveau proces, bien moins entre les parties qui
figuraient dans  le premier, qu'entre l'arret et la loi." Henrion
de  Pansey,   de  l'Autorite   judiciare  dans  les  gouvernemens
monarchiques, p.  270, edit.  in 8vo.;  6 Toull. n. 193. Ce n'est
point le' proces qu'il s'agit de juger, mais le jugement. Ib.

   5. A  writ of error is in the nature of a suit or action, when
it is  to restore  the party  who obtains it to the possession of
any thing  which is  withheld from him, not when its operation is
entirely defensive.  3 Story.  Const. §1721. And it is considered
generally as a new action. 6 Port 9.

   WRIT OF  EXECUTION, practice.  A writ  to  put  in  force  the
sentence that  the law  has given: it is addressed to the Sheriff
(and in  the  courts  of  the  United  States,  to  the  marshal)
commanding him,  according to  the nature  of the case, either to
give the  plaintiff possession  of lands;    or  to  enforce  the
delivery of a chattel which was the subject of the action;  or to
levy  for  the  plain-tiff,  the  debt,  or  damager,  and  costs
recovered;   or to  levy for  the defendant his costs;  and that,
either upon  the body of the opposite party, his lands, or goods,
or in some cases, upon his body, land, and goods;  the extent and
manner of  the execution  directed,  always  depending  upon  the
nature of the judgment. 3 Bl. Com. 413.

   2. Writs  of execution  are supposed to be actually awarded by
the judges  in court;   but no such award is in general, actually
made. The attorney, after signing final judgment, sues out of the
proper office  a writ  of execution,  in the  form  to  which  he

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conceives he  would be  entitled upon  such judgment  as he.  has
entered, if such entry has been actually made;  and, if not made,
then upon such as he thinks he is entitled to enter;  and he does
this, of  course, upon peril that, if he takes a wrong execution,
the proceeding is legal and void, and the opposite party entitled
to redress. Steph. Pl, 137, 8. See Ca. Sa.;  Execution;  Fi. Fa.;
Haberefa. possessionem;  Vend. Exp.

   WRIT OF  EXIGI FACIAS.  The name  of a  process issued  in the
course of proceedings in outlawry, and which immediately precedes
the writ of capias agatum. See Exigent, or Exigi Facias.

  WRIT OF FORMEDON, practice. This writ lies where a party claims
the specific  recovery of  lands and tenements, as issue in tail;
or as  remainder-man or reversioner, upon the determination of an
estate in tail. Co. Litt. 236 b;  Booth, 139, 151, 154.

   WRIT OF  INQUIRY, practice.  When in  an  action  sounding  in
damages,  (q.  v.)  as  covenant,  trespass,  and  the  like,  an
interlocutory judgment  is rendered, which is, that the plaintiff
ought to  recover his  damages, without specifying the amount, it
not  yet  being  ascertained,  the  court  does  not  in  general
undertake the  office of assessing the damages, but issues a writ
of inquiry, which is a writ directed to the sheriff of the county
where the  facts are  alleged by  the pleadings  to have occured,
commanding him  to inquire  into the  amount of damages sustained
"by the  oath or  affirmation of twelve good or lawful men of his
county;" and to return such inquisition, when made, to the court.

   2. The finding of the sheriff and jury under such a proceeding
is called an inquisition. (q. v.)

  3. The court will, on application, order that a writ of inquiry
shall be executed before a judge, where it appears that important
questions of law will arise. 2 John. R. 107.

  4. When executed before the sheriff, he acts ministerially, and
not judicially, and therefore, it may be executed before a deputy
of the  sheriff. 2  John R.  63. Vide  Steph. Pl. 126;  Grah. Pr.
639;   2 Archb. Pr. 19;  Tidd's Pr. 513;  Yelv. 152, n.;  18 Eng.
Com. Law  Rep. 181,  n., 189,  n.;  1 Marsh. R. 129;  l Sell. Pr.
346;  Watson on Sher. 221;  2 Saund. 107, n. 2.

   WRITS, JUDICIAL,  practice. In England those writs which issue
from the  common law  courts during  the progress  of a suit, are
described as  judicial writs,  by way  of  distinction  from  the
original one obtained from chancery. 3 Bl. Com. 282.

   WRIT OF MAINPRIZE, English law. A writ directed to the sheriff
(either gen-erally,  when any  man is  imprisoned for  a bailable
offence, and  bail has  been refused;   or  specially,  when  the
offence or  cause of  commitment is  not properly bailable below)
commanding him  to take  sureties for  the prisoner's appearance,
commonly called  mainpernors, and to set him at large. 3 B]. Com.
128. Vide Mainprize.

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   WRIT OF  MESNE, Breve' de medio, old English law. A writ which
was so  called, by  reason of the words used in the writ, namely,
Unde idem  A qui  medius est inter C et praefatum B;  that is, A,
who is  mesne between  C, the  lord paramount,  and B, the tenant
paravail. Co. Litt. 100, a.

   WRIT, ORIGINAL,  practice, English  law. An original writ is a
mandatory letter  issuing out  of the court of chancery under the
great seal  and in  a king's name, directed to the sheriff of the
county where  the injury  is  alleged  to  have  been  committed,
containing a  summary statement  of the  cause of  complaint, and
requiring him  in most  cases, to command the defendant to satisy
the claim;   and, on his failure to comply, then to summon him to
appear in  one of  the superior  courts of  common law,  there to
account for  his non-compliance. In some cases, however, it omits
the former  alternative,  and  requires  the  sheriff  simply  to
enforce the appearance. Steph. Pl. 5.

   WRIT OF  REPLEVIN, practice.  The name of a process issued for
the recovery of goods and chattels. Vide Replevin.

   WRIT OF PRAECIPE. This writ is also called a writ of covenant,
and is  sued out by the party to whom lands are to be conveyed by
fine;   the foundation  of  which  is  a  supposed  agreement  or
covenant that  the one  shall convey the land to the other. 2 Bl.
Com. 349, 350.

   WRIT OF  PREVENTION. This name is given to certain writs which
may be issued in anticipation of suits which may arise. Co. Litt.
100. See Quia Timet.

  WRIT OF RATIONABILI PARTE BONORUM. A writ which was sued out by
a widow when the executors of her deceased husband refused to let
her have a third part of her late husband's goods after the debts
were paid. F. N. B. 284.

   WRIT OF RESTITUTION. A writ which is issued on the reversal of
a judgment,  commanding the  sheriff to  restore to the defendant
below, the  thing levied upon, if it has not been sold, and if it
has  been  sold,  the  proceeds.  Bac.  Ab.  Execution,  Q.  Vide

   WRIT PRO  RETORNO HABENDO,  remedies, practice.  The name of a
writ which  re-cites that the defendant was summoned to appear to
answer the  plaintiff in a plea whereof he took the cattle of the
said plaintiff,  specifying them,  and that  the  said  plaintiff
afterwards made  default, wherefore  it was  then considered that
the said  plaintiff and  his pledges  of prosecuting should be in
mercy and that the said defendant should go without day, and that
he should  have re-turn of the cattle aforesaid. It then commands
the sheriff,  that he  should cause  to be  returned  the  cattle
aforesaid, to  the said  defendant without delay, &c. 2 Sell. Pr.
168. Vide Judgment in replevin.

   WRIT OF PROCESS, Engl. law, pradice. If the defendant does not
appear, in  obedience to the original writ, there issue, when the
time for  appearance is  past, other  writs, returnable  on  some
general  return  day  in  the  term,  called  writs  of  process,
enforcing the  appearance of the defendant, either by attachment,
or distress  of his  property, or arrest of his person, according
to the nature of the case.

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   2. These  differ from  the  original  writ  in  the  following
particulars;   they issue  not out  of chancery,  but out  of the
court of  common law, into which the original writ is returnable;
and, accordingly,  are not  under the great seal, but the private
seal of the court;  and they bear teste in the named of the chief
justice of  that court,  and not in the name of the king himself.
It may  also be  observed, that  in common  with all  other writs
issuing from  the court of common law, during the progress of the
suit, they are described as judicial writs, by way of distinction
from the original one obtained from the chancery. 4 Bl. Com. 282.
See further,  as to  the nature  of those  writs,  1  Tidd's  Pr.
106-193, 4th edit.;  1 Sellon's Pr. 64-102.

   WRIT OF  PROCLAMATION, Engl. practice. A writ which issues, at
the same  time with the exigi facias, by virtue of Stat. 31 Eliz.
c.  3,   s.  1,  by  which  the  sheriff  is  commanded  to  make
proclamations in the statute prescribed.

   2. When  it is not directed to the same sheriff as the writ of
exigi facias  is, it  is called  a foreign  writ of proclamation.
Lee's Dict. of Pr.;  4 Reev. Inst. 261.

   WRIT OF QUARE IMPEDIT, English law. The remedy by which, where
the right  of a  party to benefice is obstructed, he recovers the
presentation;   and is  the form of action now constantly adopted
to try  a disputed  title to an advowson. Booth, 223 1 Arch. Civ.
Pl. 434.

   WRIT OF  RECAPTION, practice. This writ lies where, pending an
action of  replevin, the  same distrainor  takes,  for  the  same
supposed cause,  the cattle  or goods of the same distrainee. See
F. N. B. 169.

  2. This writ is nearly obsolete, as trespass, which is found to
be a pre-ferable remedy, lies for the second taking;  and, as the
defendant cannot  justify, the plaintiff must necessarily recover
damages proportioned to the injury.

   WRIT OF  RIGHT, practice.  The remedly appropriate to the case
where  a   party  claims   the  specific  recovery  of  corporeal
hereditaments in  fee simple;  founding his title on the right of
property, or  mere right,  arising either from his own seisin, or
the seisin  of his  ancestor or  predecessor. F.  N. B. 1 B 3 Bl.
Com. 391.

   2. At common law, a writ of right lies only against the tenant
of the free-hold demanded. 8 Cranch, 239.

   3. This  writ brings  into controversy  only the rights of the
parties in the suit, and a defence that a third person has better
title will  not avail.  Id.;   7 Wheat.  27;   3 Pet.  133. See 2
Wheat. 306;   4 Bing. N. S. 711;  3 Bing. N. S. 434;  4 Scott, R.
209;   6 Scott, R. 435;  Id. 738;  1 Bing. N. S. 597;  5 Bing. N.

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S. 161;   6  Ad. &  Ell. 103;   1  H. Bl. 1;  5 Taunt. R. 326;  1
Marsh. R. 68;  2 Bos. & P. 570;  1 N. R. 64;  4 Taunt. R. 572;  3
Bing. R.  167;   2 W.  Bl. Rep. 1261;  1 B. & B. 17;  2 Car. & P.
187;   Id. 271  Holt, R.  657;   8 Cranch, 229;  3 Fairf. 312;  7
Wend. 250;  3 Bibb, 57;  3 Rand. 568 2 J. J. Marsh. 104;  2 A. K.
Marsh. 396;   1  Dana, 410;   2 Leigh, R. 1 4 Mass. 64;  17 Mass.

  WRIT OF TRESPASS, practice. This writ lies where a party claims
damages for  a trespass committed against his person, or tangible
and corporeal property. See Trespass.

  WRIT OF TRESPASS ON THE CASE, practice. A writ which lies where
a party  sues for  damages for any wrong or cause of complaint to
which covenant  or trespass  will not  apply. See  3 Woodd.  167;
Steph. Pl. 15.

   2. This action originates in the power given by the statute of
Westm. 2,  to the  clerks of  chancery  to  frame  new  writs  in
consimili casu  with writs  already known.  Under this power they
constructed  many   writs  for  different  injuries,  which  were
considered as in consimili casu, with, that is, to bear a certain
analogy to  a trespass.  The new  writs invented  for  the  cases
supposed to  bear such  analogy, have  received, accordingly, the
appellation of writs of trespass on the case, as being founded on
the particular circumstances of the case thus requiring a remedy,
and, to  distinguish them  from the  old writ  of  trespass;    3
Reeves, 89, 243, 391;  and the injuries themselves, which are the
subjects of  such writs,  are not called trespasses, but have the
general name of torts, wrong or grievances.

  3. The writs of trespass on the case, though invented thus, pro
re nata,  in various  forms,  according  to  the  nature  of  the
different wrongs  which  respectively  called  them  forth  began
nevertheless, to  be viewed  as constituting  collectively a  new
individual form of action;  and this new genus took its place, by
the name  of Trespass on the case, among the more ancient actions
of debt,  covenant, trespass,  &c. Such  being the nature of this
action, it  comprises, of  course, many  different species. There
are two,  however, of more frequent use than any other species of
trespass on  the case, or, perhaps, than any other firm of action
whatever. These are assumpsit and trover. Steph. Pl. 15, 16.

   WRIT OF  TOLT,  Eng.  law.  The  name  of  a  writ  to  remove
proceedings on  a writ  of right patent from the court baron into
the county court. 3 Bl. Commen-taries, App. No. 1, §2.

  WRIT OF WASTE. The name of a writ to be issued against a tenant
who has  committed waste of the premises. There are several forms
of this  writ, that  against a  tenant in  dower differs from the
others. F. N. B. 125.

   WRITING. The  act of forming by the hand letters or characters
of a  particular kind  on paper  or other suitable substance, and
artfully putting them together so as to co nvey ideas. It differs
from printing,  which is the formation of words on paper or other
proper substance  by means  of a  stamp. Sometimes  by writing ii
understood printing, and sometimes printing and writing mixed.

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  2. Many contracts are required to be in writing;  all deeds for
real estate  must be  in writing,  for it cannot be conveyed by a
contract not  in writing, yet it is the constant practice to make
deeds partly  in printing,  and partly  in writing. Wills, except
nuncupative  wills,   must  begin  writing,  and  signed  by  the
testator;   and nuncupative  wills must  be reduced to writing by
the witnesses within a limited time after the testator's death.

     3.  Records,   bonds,  bills  of  exchange  and  many  other
engagements, must,  from their  nature, be  made in  writing, See
Frauds, statute of;  Language.

   WRITING OBLIGATORY.  A bond;  an agreement reduced to writing,
by which  the party becomes bound to perform something, or suffer
it to be done.

  WRONG. An injury;  (q. v.) a tort (q. v.) a violation of right.
In its  most usual  sense, wrong signifies an injury committed to
the person  or property  of another,  or to  his relative rights,
unconnected with  contract;   and these wrongs are committed with
or without  force. But  in a  more extended  signification, wrong
includes the  violation of  a contract;   a  failure by  a man to
perform his undertaking or promise is a wrong or injury to him to
whom it was made. 3 Bl. Com. 158.

   2. Wrongs  are divided  into public  and private.  1. A public
wrong is  an act  which is  injurious to  the  public  generally,
commonly known by the name of crime, misdemeanor, or offence, and
it is  punishable in  various ways,  such as indictments, summary
proceedings, and  upon conviction  by death,  imprisonment, fine,
&c.  2.  Private  wrongs,  which  are  injuries  to  individuals,
unaffecting the  public:  these  are  redressed  by  actions  for
damages, &c.

   WRONG-DOER. One  who commits an injury, a tort-feasor. (q. v.)
Vide Dane's Abridgment, Index, h. t.

   WRONGFULLY INTENDING.  These words  are used  in a declaration
when in  an action  for an injury, the motive of the defendant in
committing it  can be proved, for then his malicious intent ought
to be  averred. This  is sufficiently done if it be substantially
alleged, in general terms, as wrongfully intending. 3 Bouv. Inst.
n. 2871.

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